Mountain Empire Unified School District (PERB 1298E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MOUNTAIN EMPIRE 	FEDERATION OF
TEACHERS,
Charging 	Party,
v.
MOUNTAIN EMPIRE UNIFIED SCHOOL
DISTRICT,
Respondent.
)
)
)
) 	Case No. 	LA-CE-3634
PERB Decision No. 	1298
October 	30, 	1998
)
))
)
)
)
)
Appearances; 	Gattey, 	Gilbreath and Hager by James M. 	Gattey,
Attorney, 	for Mountain Empire Federation of Teachers; 	Parham &
Rajcic by Mark R. 	Bresee, 	Attorney, 	for Mountain Empire Unified
School District.
Before Johnson, 	Dyer and Jackson, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before the Public Employment
Relations Board 	(PERB or Board) 	on the Mountain Empire Unified
School District's 	(District) 	exceptions 	to a Board administrative
law judge's 	(ALJ) 	proposed decision 	(attached). 	In his proposed
decision, 	the ALJ held that 	the District violated section
3543.5(a) 	and 	(b) 	of 	the Educational 	Employment Relations Act
(EERA)1 when it transferred Fred Kamper 	(Kamper) 	from his
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

position at 	the District's 	Junior/Senior High School 	to Jacumba
Elementary School 	(Jacumba) 	in retaliation 	for his protected
activities.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	the hearing transcript, 	the
District's 	exceptions 	and the Mountain Empire 	Federation of
Teachers 	response thereto. 	The Board finds 	the ALJ's 	findings 	of
fact 	and 	conclusions 	of 	law to be 	free 	from prejudicial 	error and
adopts 	them as 	the decision of 	the Board 	itself, 	consistent with
the 	following discussion.
DISCUSSION
On appeal, 	the District 	reiterates 	its argument 	that 	it
would have 	transferred Kamper 	regardless 	of 	his 	protected
activity. 	This is so, 	the District contends, 	because it acted
reasonably when 	it 	refused 	to 	rearrange 	the 	Junior/Senior High
School master 	schedule 	to 	include 	Kamper and when 	it 	declined 	to
allow Kamper 	to 	teach 	the 	animal 	care 	and woodshop 	courses.
Further, 	the District 	contends, 	it 	could not have retained Kamper
at 	the Junior High School 	without 	compromising 	the 	changes 	it
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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intended 	to make 	to 	the Title 	I program.2
The District's 	exceptions miss 	the point. 	In May of 	1995,
the District 	informed Kamper 	that 	he was 	scheduled 	to 	teach 	five
classes 	at 	the 	Junior and Senior High Schools 	during 	the 	1995-96
school year. 	Nonetheless, 	Junior High School 	Principal John
Keiter 	(Keiter) 	chose not 	to place 	Kamper on the master schedule
of 	classes 	for the 	1995-96 	school year. 	Instead, 	Keiter
scheduled nine 	Junior/Senior High School 	teachers 	to 	teach 	during
their preparation periods 	(the 	equivalent 	of 	1.8 	full-time
positions). 	Subsequently, 	Keiter decided to eliminate Kamper's
position 	from the Junior High School's 	Title 	I 	program.
Later, 	on August 10, 	1995, 	the District informed Kamper that
it 	had decided 	to 	invoke 	the 	emergency 	transfer provisions 	of 	the
collective bargaining agreement 	to 	transfer him to Jacumba.
Kamper requested the 	opportunity 	to 	explore 	a number of 	options
that 	would allow him to 	continue 	teaching at 	the Junior and
Senior High Schools. 	The District permitted Kamper to do so, 	but
ultimately 	rejected all 	of 	Kamper's 	suggestions.
As 	the ALJ 	found, 	the District 	deviated from its 	established
procedures when 	it 	failed to place 	Kamper on the 	1995-96 	schedule
and undertook a mid-term modification 	of 	the 	Junior High 	School's
2Pursuant 	to Title 	I 	of 	the 	federal 	Elementary and Secondary
Education Act 	of 	1965, 	the 	federal 	government provides 	the
District 	with 	funding 	to 	supplement 	the 	education 	of 	students 	in
"high poverty" 	schools. 	Prior to the 1995-96 school year, 	the
District 	used Title 	I 	funds 	to 	fund a 	credentialed 	teaching
position 	filled by Kamper. 	In addition to Title 	I 	courses,
Kamper generally 	taught 	computer and mathematics 	courses 	at 	the
Junior High School.
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Title 	I program without holding a site 	council meeting. 	This,
taken together with the 	timing of 	the District's action, 	was
sufficient 	to 	create 	a presumption 	that 	Kamper's 	protected
activities 	prompted 	the District 	to 	transfer him to Jacumba.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210 at
p. 	7; 	Baldwin Park Unified School District 	(1982) 	PERB Decision
No. 	221 at p. 	16.)
In order to 	rebut 	the presumption of unlawful motivation,
the District must 	show that 	it would have made 	its August 	10,
1995 	decision to 	transfer Kamper regardless 	of 	his protected
activities. 	(Healdsburg Union High School District 	(1997) 	PERB
Decision No. 	1185, 	proposed d e c , 	at p. 	47.) 	Instead, 	the
District 	focuses 	on the 	reasonableness 	of 	its 	actions 	after
August 	10, 	1995. 	While the ALJ found those actions 	to be suspect
as well, 	this 	case 	concerns 	the District's decision to transfer
Kamper, 	rather 	than 	its purported attempt 	to find him a new
position at 	the 	Junior or Senior High School. 	The mere 	fact 	that
the District may have made 	a 	reasonable attempt 	to mitigate 	the
effects 	of 	its 	decision to 	transfer Kamper 	is 	insufficient 	to
overcome 	the presumption 	that 	the 	original 	decision was
unlawfully motivated. 	Accordingly, 	the District's 	exceptions are
denied.
ORDER
Upon the findings of fact, 	conclusions of law, 	and the
entire record in this 	case, 	it 	is 	found that 	the Mountain Empire
Unified School 	District 	(District) 	violated the 	Educational
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Employment Relations Act 	(EERA), 	Government Code section
3543.5(a) 	and 	(b), 	by retaliating against 	employee Fred Kamper
(Kamper) 	because of his participation in the activities 	of 	the
Mountain Empire Federation of Teachers 	(Federation). 	The
District 	violated 	this 	section by 	transferring 	Kamper away 	from
the high school 	and junior high school 	in August 	1995.
Pursuant to EERA section 3541.5(c), 	it 	is hereby ORDERED
that 	the District, 	its governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against 	Kamper and other employees
because 	of 	their Federation activities; 	and
2. 	Denying the Federation its 	rights.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA.
1. 	Rescind the 	transfer of 	Kamper away 	from the 	high
school 	and 	junior high school. 	The 	rescission may be 	effective
at 	the end of 	the 	school year.
2. 	Pay Kamper the 	"Chapter 1 	Coordinator" 	stipend for
the 	1995-96 	school year, 	plus 	interest at 	the rate of 	seven 	(7)
percent 	per 	annum.
3. 	Pay Kamper 	for his 	additional mileage 	in commuting
to and from Jacumba Elementary School, 	from the 	time 	of his
transfer until 	his 	transfer 	is 	rescinded, 	at 	the rate established
by the Internal Revenue Service, 	plus 	interest at 	the rate of
seven 	(7) 	percent per annum.
4. 	Within ten 	(10) 	days 	following the date this
5

decision is no longer subject 	to appeal, 	post at all work
locations 	where 	notices 	to 	certificated employees 	are 	customarily
posted, 	copies 	of 	the Notice attached hereto as an Appendix. 	The
Notice must 	be 	signed by an authorized agent 	of 	the District,
indicating 	that 	the District 	will 	comply with 	the 	terms 	of 	this
Order. 	Such posting 	shall 	be maintained 	for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable steps shall be taken to
ensure the Notice 	is not reduced in size, 	altered, 	defaced or
covered with 	any 	other material.
5. 	Written notice 	of 	the actions 	taken to 	comply with
this 	Order 	shall 	be made 	to 	the 	San Francisco Regional 	Director
of 	the Public Employment Relations Board, 	in accordance with the
regional 	director's 	instructions.
Member Johnson 	joined 	in this 	Decision.
Member Jackson's 	dissent begins 	on page 	7.
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JACKSON, 	Member, 	dissenting: 	I dissent. 	The majority finds
that 	the Mountain Empire Unified School District 	(District) 	did
not place 	teacher Fred Kamper 	(Kamper) 	on the 	1995-96 	school 	year
master 	calendar, 	scheduled another 	teacher 	to 	teach math 	classes
at 	the 	junior high, 	and eliminated Kamper's position at 	the
junior high 	in response 	to Kamper's protected activities. 	While
I 	agree 	the unplanned manner 	in which 	the District 	altered
Kamper's 	job assignment may 	lead 	to an 	inference 	of unlawful
motivation 	(Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210), 	I disagree that the District 	failed in its burden to
show that 	it would have 	taken the actions 	it did regardless 	of
any protected activity 	in which 	Kamper may have 	engaged.
(Healdsburg Union High School 	District 	(1997) 	PERB Decision No.
1185 	(Healdsburg) . 	proposed d e c , 	p. 	47.)
The 	facts 	in 	the 	record before 	the 	Public 	Employment
Relations 	Board 	indicate 	that 	Kamper would have 	lost 	at 	least 	a
portion of 	his 	assignment 	regardless 	of his protected activity,
and 	the 	District 	would have been 	required 	to 	reschedule 	some 	or
all 	of his 	courses 	to give him a 	full 	course-load.
DISCUSSION
The majority held: 	"The mere 	fact 	that 	the District may
have made a reasonable attempt 	to mitigate 	the 	effects 	of 	its
decision to 	transfer Kamper 	is 	insufficient 	to overcome 	the
presumption 	that 	the 	original 	decision was 	unlawfully motivated."
This 	assertion assumes 	that 	the 	decision 	to 	transfer Kamper and
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attempt 	to place him within 	the District 	are distinct 	events 	and
not part 	of 	the 	same process.
Instead, 	the evidence 	in the record indicates, 	for a number
of 	reasons, 	Kamper was left without a full 	course 	schedule. 	The
District 	never dismissed Kamper or eliminated his 	position, 	but
instead 	transferred him to provide 	him with a 	full-time 	schedule.
As 	both 	the majority 	opinion and 	the 	administrative 	law 	judge
concluded, 	the District 	took reasonable 	steps 	to provide 	Kamper
with a full-time schedule. 	I agree. 	However, 	the District
proved 	it 	would have 	transferred Kamper 	regardless 	of 	his
protected activity due 	to elimination of 	some 	of 	his 	duties.
(Healdsburg.)
The 	findings 	the majority adopts 	include: 	(1) 	Kamper would
no 	longer have 	continued 	to 	teach 	classes 	and 	serve 	as 	the
"Chapter 	1 	Coordinator" 	at 	the high 	school 	(proposed d e c ,
p. 	35) ; 	(2) 	It was 	"understandable" 	that the District would not
make 	extensive 	changes 	to 	the Master Schedule at 	the high school
and 	junior high 	school 	so 	close 	to 	the 	commencement 	of 	school
(proposed d e c , 	pp. 	35-36); 	and 	(3) 	Kamper was transferred within
the 	same 	time period 	the 	Chapter 	1 	program was 	eliminated at 	the
high school.
In addition to these 	findings, 	the superintendent,
Dr. 	William Wong 	(Wong), 	testified why the ultimate decision to
transfer Kamper occurred. 	In 	considering 	Kamper 	for a wood 	shop
and animal 	care 	course at 	the high school, 	Wong had determined
there may be 	credential 	issues 	and he 	had more 	qualified
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individuals 	experienced 	in those areas 	to 	teach the 	classes.
Further, 	the District did not wish to upset 	the master schedules
which would have 	required 	rescheduling 	a 	number 	of 	teachers 	in
addition to Kamper.
Based upon the 	forgoing 	evidence 	in the 	record, 	I would 	find
that 	the District, 	in an effort 	to meet 	the demands 	of 	the 1995-
96 	school 	year and replace 	the 	"Chapter 	1" 	courses which were
eliminated, 	scheduled Kamper to 	teach at 	the elementary school 	as
a portion of his assignment. 	Under Healdsburg. 	the District
proved by a preponderance 	of 	the 	evidence 	that 	it 	would have
transferred 	Kamper 	regardless 	of 	any protected activity.
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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. 	LA-CE-3634,
Mountain Empire 	Federation of 	Teachers v. 	Mountain Empire Unified
School District, 	in which all parties had the 	right 	to
participate, 	it has been 	found that 	the Mountain Empire Unified
School 	District violated 	the 	Educational 	Employment 	Relations Act
(EERA), 	Government Code section 3543.5(a) 	and 	(b), 	by retaliating
against 	employee 	Fred Kamper 	(Kamper) 	because 	of his
participation 	in activities 	of 	the Mountain Empire 	Federation of
Teachers 	(Federation), 	in transferring Kamper away from the high
school 	and junior high school 	in August 	1995.
As a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against 	Kamper and other 	employees
because of 	their Federation activities; 	and
2. 	Denying the Federation its 	rights.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA.
1. 	Rescind the 	transfer of 	Kamper away 	from the 	high
school 	and 	junior high 	school. 	The 	rescission may be 	effective
at 	the 	end of 	the 	school 	year.
2. 	Pay Kamper 	the 	"Chapter 	1 	Coordinator" 	stipend for
the 	1995-96 	school year, 	plus 	interest at 	the 	rate of 	seven 	(7)
percent 	per annum.
3. 	Pay Kamper 	for his 	additional mileage 	in commuting
to and from Jacumba 	Elementary School, 	from the 	time 	of 	his
transfer until 	his 	transfer 	is 	rescinded, 	at 	the 	rate established
by the 	Internal 	Revenue Service, 	plus 	interest at 	the 	rate Of
seven 	(7) 	percent per annum.
Dated: 	MOUNTAIN EMPIRE 	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.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MOUNTAIN EMPIRE 	FEDERATION OF
TEACHERS,
Charging 	Party,
v.
MOUNTAIN EMPIRE UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-3634
PROPOSED DECISION
(3/3/98)
)
)
)
)
)
)
)
Appearances: 	James M. 	Gattey, 	Attorney, 	for Mountain Empire
Federation of Teachers; 	Parham & Rajcic, 	by Mark Bresee,
Attorney, 	for Mountain Empire Unified School 	District.
Before Thomas J. 	Allen, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In this 	case, 	a union of 	certificated employees alleges 	a
school district 	retaliated against 	a union activist. 	The 	school
district 	denies 	any retaliation.
The 	Mountain Empire 	Federation of 	Teachers 	(Federation)
filed an unfair practice 	charge 	against 	the Mountain Empire
Unified School District 	(District) 	on December 20, 	1995, 	alleging
the 	District 	had 	retaliated against 	union 	activist 	Fred 	Kamper
(Kamper). 	The Office of the General 	Counsel of the Public
Employment 	Relations 	Board 	(PERB) 	issued a 	complaint 	against 	the
District on April 	29, 	1996, 	alleging the District had retaliated
against 	Kamper on or about August 	10, 	1995, 	by removing him from
his 	position 	at 	the 	District's 	high 	school 	and 	junior high 	school
and transferring him to 	an elementary school. 	The 	District 	filed
an answer on May 21, 	1996, 	denying any retaliation.

PERB 	held an 	informal 	settlement 	conference 	on June 	19,
1996. 	After three continuances 	requested by the parties, 	PERB
held a formal hearing on April 23, 	24, 	and 25, 	June 30, 	and
July 1, 	1997. 	After the 	filing of post-hearing briefs, 	the case
was 	submitted for decision on October 8, 	1997.
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer under the
Educational 	Employment Relations Act 	(EERA).1 The 	Federation is
an employee 	organization under EERA and 	is 	the 	exclusive
representative 	of 	the 	District's 	certificated employee 	bargaining
unit.
The 	District 	is 	relatively small 	in numbers 	of 	students 	and
employees, 	but 	it 	is 	spread over a large 	area 	in the 	southeast
corner of 	San Diego County. 	The District's high school, 	junior
high 	school 	and headquarters 	are 	located next 	to 	each other
somewhat west 	of 	the geographic 	center of 	the District, 	and that
is where 	the 	largest portion of 	the District's 	students 	and
employees 	are. 	A number of 	teachers 	teach classes 	at both the
high school 	and the 	junior high school, 	and sometimes 	the 	two
schools have 	shared a 	single principal. 	One of 	the District's
smaller and more remote schools, 	Jacumba Elementary, 	has 	just
three 	certificated employees 	and 	is 	located 	in the 	southeast
corner of 	the District.
1EERA is 	codified at 	Government 	Code 	section 3540 	and
following. 	Unless otherwise 	indicated, 	all 	statutory references
are 	to the Government 	Code.
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At 	the District's elementary schools, 	the classes 	are 	self-
contained; 	the 	students 	receive 	instruction 	in multiple 	subjects
from a 	single 	teacher 	in a 	single 	classroom. 	At 	the 	District's
high school 	and junior high school, 	the 	classes 	are
departmentalized; 	the 	students 	receive 	instruction 	in different
subjects 	from different 	teachers 	in different 	classrooms.
The 	high 	school 	and 	junior high 	school 	each have 	a master
schedule 	showing which teachers will 	teach which 	subjects 	during
which periods. 	The 	two master schedules are 	coordinated, 	because
of 	the 	teachers who 	teach at 	both schools. 	A full 	schedule 	for a
teacher normally consists 	of 	five 	teaching periods 	and one
preparation period. 	Teachers who teach six periods, 	teaching on
what would otherwise be 	their preparation periods, 	receive 	an
additional 	20 	percent 	of 	their regular 	salaries.
There 	is 	a 	collective 	bargaining agreement 	(Agreement)
between the District 	and the 	Federation. 	When this 	case 	arose,
the Agreement 	provided 	for advisory arbitration of 	grievances.
At 	all 	relevant 	times, 	Article 	10 	of 	the Agreement 	(Subject 	and
Grade Level Assignments) 	provided:
10.1 	To the 	extent 	known at 	the 	time 	of
notification, 	the 	Superintendent 	or
his 	designee 	shall 	inform the
certificated employee 	of 	his/her
projected subject 	area, 	specific
course assignments(s), 	and grade
level(s) 	assignments prior to May
15 	for the ensuing year.
10.2 	A 	second notice 	of 	projected
assignment 	shall 	be 	sent 	to
certificated 	employees 	on or 	about
August 	15, 	in those circumstances
where 	it 	is determined that
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staffing 	conditions 	require 	an
amendment 	to 	the 	first 	notice.
10.3 	When possible, 	the 	certificated
employee 	shall 	be 	notified 	a
minimum of 	thirty 	(30) 	days 	prior
to 	any 	changes 	in 	course 	or 	grade
assignment.
Article 	18 	(Transfers 	and Reassignments), 	Section 	18.3
(Involuntary Transfers), 	provided:
18.3.1 	Involuntary transfers 	shall 	be
based 	exclusively 	on 	the 	education-
related 	needs 	of 	the 	District.
They 	will 	be 	initiated 	and 	effected
within 	the 	discretion 	of 	the
Superintendent. 	They 	shall 	not 	be
punitive 	or 	disciplinary 	in 	nature,
and 	shall 	not 	be 	based 	on
arbitrary, 	political, 	or vindictive
reasons.
18.3.2 	The 	following procedures 	will 	be
used 	for 	involuntary 	transfers:
(a) 	The 	Superintendent 	shall
schedule 	a 	conference 	with 	the
certificated 	employee 	to
discuss 	the 	involuntary
transfer. 	Upon request, 	the
Superintendent 	shall 	provide
the 	certificated 	employee 	with
a 	written 	statement 	giving 	all
reasons, 	including parental
complaints, 	if any, 	for the
impending 	transfer. 	This
procedure 	shall 	be 	scheduled
as 	soon 	as 	a 	decision has 	been
made 	to 	effect 	an 	involuntary
transfer.
(b) 	The 	certificated 	employee 	may
schedule 	a 	conference 	to
discuss 	the 	transfer 	with 	the
Federation 	President 	and 	the
Superintendent.
(c) 	Certificated employees 	who 	are
involuntarily 	transferred
shall 	have 	the 	right 	to
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indicate 	reassignment
preferences 	from a 	list 	of
available vacancies. 	If the
certificated 	employee 	being
involuntarily 	transferred
indicates 	a preference 	for a
vacant position, 	the
Superintendent 	may 	transfer
that 	certificated employee 	to
such vacant 	position whether
or not 	the 	selection process
for 	such vacant 	position 	is
continuing. 	In such case, 	the
District 	may 	terminate
continuation of 	the 	selection
process 	for that 	previously
vacant 	position.
(d) 	Except 	in cases of emergency,
as 	determined by 	the
Superintendent, 	involuntary
transfers 	shall 	not be
effected until 	at 	least 	three
(3) 	weeks following the
Superintendent's 	conference
with the 	teacher.
The Agreement 	has 	also provided a modest 	amount 	of 	extra pay
(less 	than $300 per semester) 	for a teacher 	in the position of
"Chapter 1 	Coordinator."
"Chapter 1" 	refers 	to Chapter 1 of 	the 	federal 	Elementary
and Secondary Education Act 	of 	1965, 	which has provided 	federal
funds 	to 	supplement 	the 	education of 	students 	in 	"high-poverty"
schools. 	The 	federal 	government 	has 	offered various 	formulas by
which 	school 	districts 	could rank 	their 	schools 	to determine
which ones 	are 	"high-poverty" 	and therefore 	eligible 	for
Chapter 1 	funds. 	In the District, 	the choice of the 	formula is
made 	initially by a 	District 	Advisory 	Council 	and ultimately by
the 	Governing Board. 	The 	allocation of 	specific 	amounts 	of 	funds
to eligible 	schools 	is made 	in the 	same way.
5

How Chapter 	1 	funds 	are 	actually spent 	at 	a 	school 	is
determined by the 	individual 	school 	site 	council; 	such 	funds 	are
supposed to be 	spent 	in 	accordance 	with a 	three-year plan 	for the
school. 	Each three-year plan 	is 	developed by the 	school 	site
council, 	reviewed by the District Advisory Council, 	and
ultimately approved by the 	Governing Board. 	The 	District's 	high
school 	had a 	three-year plan 	for 	1992-1995, 	approved by the
Governing Board on August 	4, 	1992. 	The District's 	junior high
school 	had a 	three-year plan 	for 	1994-1997, 	approved by the
Governing Board on May 18, 	1994. 	With regard to Chapter 1, 	both
three-year plans 	stated 	in part:
Each Chapter I 	[sic] 	class will have a
credentialed 	instructor and a 	full 	time 	adult
aide. 	Students have access 	to the Chapter I
computer 	lab throughout 	the 	day on an as
needed basis.
Scheduled classes 	meet 	five periods per week with
a Chapter 	I 	teacher, 	assisted by an adult
instructional 	aide, 	to provide 	individualized and
small 	group 	instruction for target 	students.
Computers 	to assist 	instruction, 	appropriate
language, 	reading, 	and match programs are
utilized.
Neither three-year plan mentioned 	staff 	development 	in 	connection
with Chapter 	1.
In the 	1994-95 	and 1995-96 	school years, 	Anna Sullivan
(Sullivan) 	was 	the District's Director of 	Consolidated Programs,
responsible 	for making sure 	the District 	was 	in compliance with
various 	state and federal programs, 	including Chapter 1. 	She
chaired 	the 	District 	Advisory 	Council 	and 	tried 	to 	keep 	herself
informed about what 	was 	happening at 	all 	the 	school 	sites.
6
•

In the 	1994-95 	school year, 	Fred Kamper 	(Kamper) 	served as
Chapter 	1 	Coordinator at 	the 	high school 	and junior high 	school.
He 	taught 	all 	the 	Chapter 1 	classes himself, 	two at 	the high
school 	and three at 	the 	junior high school, 	and his 	salary was
paid with Chapter 1 	funds. 	The 	1994-95 	school year was 	the 	first
year Chapter 	1 	funds were 	actually allocated to the 	high school,
so Kamper had not previously taught 	Chapter 	1 	classes 	at 	the 	high
school. 	In previous years, 	since about 	1990, 	he had taught up to
four Chapter 1 	classes at 	the 	junior high school, 	with the
remainder of 	his 	schedule being 	filled with other 	classes.
Usually these were 	computer classes, 	but 	at 	least 	one year he
taught 	an 	English development 	class 	for 	Spanish-speaking
students. 	From 1988 	to 1990, 	before Kamper started teaching
Chapter 1 	classes, 	he had taught mathematics and computer classes
at 	the 	junior high school.
Kamper has 	a multiple 	subject 	teaching credential, 	which
authorizes 	him 	to 	teach 	in 	"any 	self-contained 	classroom,"
including 	"grades 	1 	to 12." 	He also has 	a supplementary
mathematics 	credential, 	which authorizes 	him to teach mathematics
in 	"departmentalized classes 	in grades 	6, 	7, 	8 	and 9." 	He 	also
has 	an administrative 	credential, 	which authorizes 	him to 	serve
as 	a principal 	or assistant principal. 	When he 	first 	came 	to the
District, 	he 	taught 	third and fourth grade 	at 	an elementary
school 	for five years. 	He 	then spent one year as assistant
principal 	and two years 	as principal 	at 	the high school 	and
junior high school, 	before he 	returned to the classroom.
7
7

Both before and after his years 	as 	a principal, 	Kamper was
very active 	in the 	Federation. 	He 	had served as 	the 	Federation
president 	and was 	its 	chief 	negotiator and main processor of
grievances. 	He was well known in the District; 	Governing Board
member Ralph Davis 	(Davis), 	called as a witness by the
Federation, 	testified, 	"It 	is generally perceived that Mr. 	Kamper
is 	one of 	the most 	litigious people 	that 	ever lived." 	Davis
testified he 	himself 	shared that perception, 	although not 	because
of Kamper's 	employee rights presentations.
There are 	three more people at 	the 	center of 	this 	case.
John Keiter 	(Keiter) 	became principal 	of 	the District's 	junior
high school 	on July 1, 	1995. 	In 1994-95, 	he had been principal
of two elementary schools 	in the District; 	neither school 	had a
Chapter 	1 program, 	and Keiter had no previous 	responsibility 	for
such a program. 	Keiter testified he was 	aware 	Kamper was 	a
leader 	in the 	Federation but 	did not 	recall 	having dealt 	with
him.
Dr. 	Mark Lindsay 	(Lindsay) 	became principal of 	the
District's high school, 	also on July 1, 	1995. 	He had previously
been an administrative 	assistant principal 	in a 	high 	school 	in
another district, 	where he 	had some 	responsibility for a 	Chapter
1 	program but 	was 	not 	the 	lead administrator. 	Lindsay testified
he 	did not 	know Kamper was 	active 	in the 	Federation 	"probably
until 	sometime after school 	started" 	in August 	1995.
Dr. 	William Wong 	(Wong) 	became 	superintendent of the
District 	in December 	1994. 	He had previously been an
8

administrator in other school districts. 	In one district, 	he had
spent two years as director of 	special programs, 	with
responsibility 	for a 	Chapter 	1 	program. 	Wong testified he was
aware 	Kamper was 	an officer of 	the 	Federation and a member of 	its
negotiating 	team.
Sometime 	in 1994, 	Congress amended the Elementary and
Secondary Education Act 	of 	1965 	by passing 	the 	Improving
America's Schools Act of 	1994. 	Chapter 1 was reauthorized as
"Title 	I," 	and there were 	changes 	in the 	emphasis 	of 	the
program. 	As 	the District's 	Director of 	Consolidated Programs,
Sullivan monitored 	the 	reauthorization 	and 	reported 	to 	the
District Advisory Council. 	According to 	the minutes 	of 	a meeting
on January 20, 	1995, 	Sullivan reported in part:
Chapter I 	[sic] 	reauthorization has changed
many of 	the old ways 	things used to be 	done.
This will 	take effect on July 1, 	1995.
Chapter 	I 	will 	now be 	called Title 	I.
Chapter 	I 	is 	earmarked for the 	economically
disadvantaged. 	The 	district 	selects 	the
poverty index method. 	We use 	free and
reduced lunch counts 	as 	do most 	districts.
Once 	the 	index 	is 	determined the 	ranking
process 	is 	the next 	step 	in getting the money
to the 	sites. 	There 	are many rules and
regulations 	that must be 	followed 	in the
ranking and 	funding of 	school 	sites. 	Several
practices 	are being frowned on: 	Pull-out
programs 	(except 	those 	shown 	to be 	successful
according to research, 	such as Reading
Recovery), 	programs delivered by aides rather
than teachers. 	Several 	ideas 	are being put
forth as being models 	and ideals: 	extended
time, 	parent education, 	parent contacts,
heavy 	staff 	development.
Sullivan 	testified 	she made 	a 	similar report 	around the 	same 	time
to 	a management meeting, 	which Wong as 	superintendent 	would have
9

conducted, 	and which Keiter as 	an elementary school principal
would 	have 	attended.
Wong testified he 	looked at 	the 	goals 	of 	the 	reauthorization
and concluded school 	districts 	across 	the 	country would have 	to
change 	their plans. 	While 	the 	Chapter 1 program had emphasized
remedial 	education in language arts and mathematics, 	the Title 	I
program emphasized all 	the 	core 	courses, 	including science 	and
social 	studies. 	Keiter testified he 	too looked at 	the goals 	of
the 	reauthorization and concluded changes would be 	necessary. 	He
understood the 	intent 	was 	to bring 	supplemental 	education closer
to the regular classrooms, 	rather than to have 	separate 	classes.
He 	further understood 	"a portion of 	the 	funds would have 	to be
directed 	towards 	staff 	development 	for all 	of 	the 	teachers 	that
worked with Title 	I 	kids 	in core classroom settings." 	It 	does
not appear, 	however, 	that the District took any steps toward
changing 	its programs before August 	1995.
As 	the District's new superintendent, 	Wong had as 	one 	of 	his
goals 	an 	improvement 	in 	the 	District's 	relationship with 	the
Federation. 	One problem 	in that 	relationship was 	a pending
lawsuit 	the 	Federation had filed against 	the District 	in 	1994.
On May 15, 	1995, 	Wong and the 	Federation president 	signed a
tentative 	agreement 	settling the 	lawsuit, 	amending the Agreement,
and resolving some 	other 	issues. 	Wong testified Kamper had 	"a
major impact" 	on the 	lawsuit 	and its 	resolution. 	Wong also
testified he 	thought 	the 	tentative 	agreement 	was 	a very 	fair
compromise, 	going a long way to improve the relationship.
10

In the 	latter part of the 	1994-95 	school year, 	the
District's 	high school 	and junior high 	school 	shared a principal,
Michael Miller 	(Miller). 	In accordance with Section 10.1 of 	the
Agreement, 	Miller informed teachers by May 15, 	1995, 	of their
projected assignments 	for the 	1995-96 	school year. 	Miller
informed Kamper he was projected to 	teach 	five 	Chapter 	l/Title 	I
classes. 	Presumably, 	two of 	those classes were to be at 	the high
school, 	as in the previous year.
Sometime 	after Miller gave 	Kamper 	this 	projected assignment,
the 	District 	received 	information 	the 	high school 	would not 	be
eligible 	for Title 	I 	funds. 	In response to this 	information, 	the
District Advisory Council 	recommended the 	new computers 	at 	the
high school, 	which had been purchased with Chapter 1 	funds, 	be
dispersed to schools eligible 	for Title 	I 	funds. 	In response 	to
the 	same 	information, 	the new three-year plan for the 	high
school, 	as approved by the Governing Board on June 27, 	1995, 	had
no 	Chapter 	l/Title 	I 	section. 	Kamper testified he 	did not
receive 	this 	information, 	and Wong testified neither he nor
Sullivan nor Miller 	thought 	about 	its 	effect 	on Kamper's
assignment. 	Sullivan, 	however, 	testified Kamper was part of the
process 	of 	deciding to disperse 	the 	computers. 	She understood
Kamper would not 	teach Title 	I 	classes 	at 	the high school 	but
would still 	teach them at 	the 	junior high school.
Sullivan, 	Keiter and Lindsay were 	all 	on vacation 	in the
month of 	July. 	Around this 	time, 	Wong became aware of 	a
federally-approved 	formula under which 	the 	high 	school 	could
11

again be 	eligible 	for Title 	I 	funds. 	He hoped the District
Advisory Council 	would support 	the use of 	this 	formula, 	and the
allocation of 	funds 	to the high school, 	even though it would mean
less money for other schools. 	When Sullivan returned from
vacation, 	Wong asked her to set up a meeting.
Keiter 	returned 	from vacation 	before 	Lindsay 	and 	started
working on the 	junior high school 	master 	schedule. 	Although
Kamper and his 	Chapter 	1 	classes 	had been on the 	1994-95
schedule, 	Keiter did not put Kamper or any Title 	I 	classes on the
1995-96 	schedule; 	Keiter testified he 	did not 	remember making the
decision not 	to do 	so.
When Lindsay returned 	from vacation, 	Wong told him about 	the
prospect 	of Title 	I 	funds 	for the high school. 	Wong also told
Lindsay, 	however, 	the new computers at the high school had been
committed to 	other 	schools. 	Wong asked both Lindsay and Keiter
to think about 	the Title 	I programs 	at 	their schools. 	One of 	the
first 	things 	Lindsay and Keiter discussed was 	staff 	development;
according to Keiter, 	the 	two reached 	"almost 	a 	simultaneous
conclusion" 	to eliminate 	separate Title 	I 	classes 	in favor of
staff 	deve1opment.
Lindsay was 	especially enthusiastic 	about 	a 	staff
development program he 	had used 	in another school 	district. 	Wong
testified he 	remembered telling Lindsay to 	"make 	sure" 	to have 	a
school 	site 	council 	meeting to approve 	it. 	Neither Wong nor
Lindsay nor 	Keiter 	discussed the 	impending 	change 	with 	Sullivan
or Kamper.
12

The 	events most 	central 	to this 	case 	took place 	in August
1995. 	Some of 	the events were 	scheduled in advance: 	the
District Advisory Council 	was 	scheduled to meet 	on August 	8; 	Wong
was 	scheduled to have 	surgery on August 	16; 	the Governing Board
was 	scheduled to meet 	on August 	22; 	teachers were 	scheduled to
report 	for work on August 	23; 	and classes were 	scheduled to begin
on August 	28.
As Wong had advised, 	Lindsay took 	action 	to hold a 	school
site 	council meeting. 	Lindsay believed it was 	necessary for the
school 	site 	council 	to add a Title 	I 	section to the 	school's
three-year plan and submit 	it 	to the District Advisory Council,
which was meeting on August 	8. 	Lindsay had a 	secretary type 	a
meeting notice, 	post 	it on the doors of the high school, 	and take
it 	to 	the District 	headquarters 	for 	further posting. 	The 	notice
announced an 	"Emergency School 	Site 	Council 	Meeting" 	on August 	4
to 	"[e]valuate 	and revise 	the Title 	I 	Program at Mountain Empire
High School." 	Sullivan and Kamper did not 	see 	the 	notice 	and
were not 	aware 	of 	the meeting.
At 	the August 	4 	meeting, 	Lindsay told the other members
present 	the 	high school might be 	allocated $62,000 	in Title 	I
funds 	and needed a plan to 	submit 	to 	the 	District Advisory
Council 	on August 	8. 	After discussion, 	a tentative budget was
approved, 	with $34,000 	for instructional 	aides, 	$15,000 	for staff
development, 	and $13,000 	for equipment 	and materials, 	but with no
funds 	to be 	spent 	on a credentialed 	instructor. 	When the minutes
were 	distributed, 	attached to them were 	two additional 	pages,
13

appearing to be 	a proposed Title 	I 	section 	for the 	high school's
three-year plan, 	describing a program with 	instructional 	aides,
staff development, 	and computers, 	but without a credentialed
instructor. 	It 	is not 	clear from the minutes 	or the testimony,
however, 	whether these two pages were 	discussed at 	the August 	4
meeting 	itself.
The 	District 	Advisory Council 	met 	as 	scheduled on August 	8.
Before 	the meeting, 	Wong suggested the Federation president 	tell
Kamper to attend, 	because Wong wanted Kamper's 	support 	for the
allocation of 	funds 	to the 	high 	school. 	The Federation president
did call 	Kamper, 	who did attend. 	Sullivan and Wong explained how
the 	high 	school 	could receive 	an allocation; 	Kamper explained how
the 	Chapter 	1 	program had been run 	and how 	it 	had benefitted
students. 	The 	consensus at 	the meeting was to allocate 	funds 	to
the high school. 	There was also discussion of whether the new
computers 	at 	the 	high 	school 	should still 	be dispersed to 	other
schools; 	the 	consensus was 	to let 	the high school 	keep them.
Even though Lindsay and another member of 	the 	high 	school
site 	council were present, 	and even though the 	site 	council 	had
acted 	specifically in order to be 	able 	to 	submit 	its plans 	to 	the
District Advisory Council, 	no one mentioned the high school's
plans 	for a Title 	I 	program without 	a 	credentialed instructor.
Keiter was 	also present, 	but 	he 	did not mention any new plans 	for
the 	junior high school 	either.
According to Wong, 	it was 	immediately after the District
Advisory 	Council 	meeting he 	first 	realized 	Kamper might 	be
14

transferred. 	Lindsay and Keiter told Wong about 	their plans, 	and
Wong realized those plans 	had implications 	for Kamper. 	He 	told
Lindsay and Keiter they would not 	have 	enough Title 	I 	money 	for
their staff 	development 	plans 	and 	for Kamper's 	salary. 	Lindsay
and Keiter 	told Wong 	they would 	rather proceed with 	their plans;
Wong said that 	would cause him to 	"surplus" 	Kamper.
Wong began 	studying the 	issue 	of 	Kamper's possible 	transfer.
He 	reviewed Kamper's 	credentials 	and the 	language 	of 	Section 	18.3
of 	the Agreement 	(Involuntary Transfers). 	He determined Section
18.3 	did not 	require 	him to 	consider Kamper's 	seniority in
deciding whether to transfer him. 	On August 	10, 	Wong heard
Kamper was 	on his way to District 	headquarters 	on other business,
and Wong 	decided he 	should go 	ahead 	and 	talk 	to 	Kamper 	about 	the
transfer.
Part 	of 	Kamper's business on August 	10 	was 	to meet with
Lindsay and Keiter about 	the 	Title 	I program. 	At 	the District
Advisory Committee meeting, 	Kamper had offered 	to meet 	with
Lindsay, 	and on August 	10 	Lindsay called Kamper and set 	up a
meeting for later that morning. 	At 	the meeting, 	Kamper was
telling Lindsay and Keiter about 	the 	computers 	at 	the 	high school
when Lindsay remarked to Keiter, 	"He doesn't know yet." 	Lindsay
then told Kamper 	the 	new computers would be 	dispersed to other
schools 	after all; 	Wong 	later testified he had made 	this
decision, 	despite 	the consensus 	at 	the District Advisory Council,
because 	the 	principals who 	expected to 	receive 	the 	computers 	had
been 	calling him and 	"essentially whining." 	Lindsay also 	told
15

Kamper he was 	developing a Title 	I 	program with aides but 	no
credentialed 	instructor. 	Kamper responded that 	the 	junior high
school 	still 	had its 	computers 	and that perhaps 	he 	could be
scheduled to teach several 	Title 	I 	classes 	there 	and also 	to
coordinate 	the 	aides 	at 	the 	high school. 	Kamper understood 	from
Lindsay and Keiter this 	was 	a possibility.
Later that day 	(August 	10), 	when Kamper met with Wong, 	the
Federation president was 	also present. 	Wong handed Kamper a
letter bearing the date 	"August 	22, 	1995." 	The 	letter stated as
follows:
Due 	to 	the 	reallocation of 	categorical 	funds
at 	the Junior/Senior High School, 	it has
become 	necessary to 	restructure 	the
categorical 	programs 	at 	the 	Junior/Senior
High School. 	As a result, 	it will be
necessary to transfer you 	to 	a different
position at 	a different 	site 	for the upcoming
year. 	Because 	categorical 	funds were not
approved by 	the 	California 	legislators 	until
August 	3, 	1995 	and the District 	did not
receive 	our 	estimated 	apportionment 	until
August 8, 	1995, 	I am declaring the transfer
to be 	of 	an emergency nature 	in order to
complete 	certificated 	assignments 	by 	the
first 	student 	school 	day.
Pursuant 	to paragraph 	18.32 	of 	the 	Collective
Bargaining Agreement 	(hereinafter "CBA"), 	a
conference 	with you 	regarding 	this 	transfer
was held on August 	10, 	1995.
Our records 	indicate 	that 	you possess 	a 	K-12
self 	contained multiple 	subject 	credential
and have 	appropriate 	credentials 	to 	teach
math in grades 6, 	7, 	8, 	and 9. 	It appears
that 	the 	only vacancies 	at 	this 	time 	for
which you have 	appropriate 	credentials 	are 	a
full 	time 	elementary teacher at 	Jacumba
Elementary and a 	full 	time 	Independent 	Study
position at 	the 	Continuation High School.
Because 	the 	Independent 	Study position
requires your consent, 	you are being
16

transferred to Jacumba Elementary School. 	If
you wish to provide your 	consent 	to 	the
Independent 	Study position, 	please notify me
in writing by August 2, 	1995 	[sic].
Please give me a call 	if you have 	any
questions.
Wong testified the reference to 	"August 	2, 	1995" 	was a
typographical error. 	He did not explain the 	"August 	22, 	1995"
date on the 	letter, 	however, 	or why the 	letter referred to the
August 	10 	conference 	as 	having already been held, 	other than to
testify he 	did not 	remember handing 	it 	to Kamper on August 	10.
The 	reference 	in the 	letter to the 	need 	for Kamper's 	consent 	for
the 	Independent 	Study position was 	apparently a 	reference 	to
Education Code 	section 44865, 	which requires 	a teacher to consent
to 	a 	continuation 	school 	assignment 	outside 	the 	teacher's
credential.
With regard to 	the 	letter's 	reference 	to 	the 	District's
estimated apportionment of Title 	I 	funds, 	Wong testified he had
called the 	State Department 	of 	Education on August 	8 	and
understood the 	District 	would receive 	less 	than 	in 	the previous
school year, 	which worried him. 	Ultimately, 	the District did
receive about 	10 percent 	less, 	$240,000 	as opposed to $267,000.
After giving Kamper the 	letter, 	Wong wrote up a list 	of 	all
known vacancies 	in the District, 	whether or not 	they were within
Kamper's 	credential. 	Wong 	showed the 	list 	to Kamper and the
Federation president; 	it 	included not 	only the positions at 	the
continuation 	school 	and 	Jacumba 	Elementary 	School 	mentioned 	in
the 	letter but 	also one 	animal 	care class 	at 	the high school,
17
,

four woodshop classes at 	the high school, 	a 	full-time 	speech
position, 	a 	full-time 	resource 	specialist position 	in special
education, 	and a half-time elementary school position. 	Kamper
had no 	interest 	in 	the 	speech position and did not 	think he was
credentialed 	for 	the 	resource 	specialist 	position. 	Kamper
expressed 	interest 	in the 	animal 	care 	and woodshop 	classes 	and
also 	in the 	continuation 	school 	position. 	With regard to 	the
latter, 	Wong asked Kamper to put his 	interest 	or consent 	in
writing; 	Kamper said he wanted to 	consider his 	other options
first.
Kamper 	and the 	Federation president 	asked 	if 	they could 	look
at 	the master 	schedules 	for 	the 	high 	school 	and 	junior high
school 	to 	find more 	options. 	Although teachers 	do not 	usually
see 	the master schedules until 	school 	starts, 	and although the
Agreement 	did not 	provide 	for an employee 	facing 	transfer to
review the master 	schedules, 	Wong 	called Lindsay and Keiter 	and
arranged 	for Kamper 	and the president 	to 	go 	take 	a 	look.
Kamper 	and the 	Federation president 	went 	to 	Lindsay's
office, 	where 	Lindsay and Keiter were present 	and the master
schedules were 	on view. 	The 	first 	thing Kamper and the president
noticed was 	that 	nine 	teachers 	were 	scheduled to 	teach during
their preparation periods. 	Eight 	of 	these were high school
teachers; 	one was a 	junior high school 	teacher who also taught
high school 	chemistry. 	This was an unusually high number, 	and
Lindsay was 	somewhat 	surprised and concerned when 	it 	was 	brought
to his attention.
18

Another unusual 	feature 	of 	the master 	schedules was 	that
Craig Matern 	(Matern) 	was 	scheduled to teach two eighth grade
mathematics 	classes. 	Although Matern had a 	credential 	to 	teach
introductory mathematics, 	he 	normally taught physical 	education
only. 	Someone 	else was 	assigned to teach two high school
physical 	education 	classes Matern normally taught.
The 	master 	schedules 	showed the 	four woodshop 	classes were
to be 	taught by Robert Jacinski 	(Jacinski). 	Jacinski had taught
woodshop 	as 	a 	temporary employee 	on 	an 	emergency credential
during the 	1994-95 	school 	year. 	He 	had taken courses 	and a 	test
to obtain a 	full 	credential, 	but 	the results of 	the 	test were not
yet 	known. 	The master schedules did not 	show who would teach the
animal 	care 	class, 	but Kamper was 	told it was 	to be Kelly Tulloch
(Tulloch). 	Tulloch was an instructional 	aide with a degree 	in
agricultural 	business, 	and education and experience 	in animal
care, 	but no credential.
Based on the master schedules, 	Kamper and the 	Federation
president 	developed 	several 	different 	options permitting 	Kamper
to 	continue 	teaching at 	the high school 	and junior high school.
One 	option was 	for Kamper 	to 	teach 	the woodshop 	and animal 	care
classes. 	It was not 	clear from the testimony what 	any of 	the
other 	specific 	options were, 	but 	they all 	affected the 	schedules
for both 	schools 	and 	reduced the number of 	teachers 	scheduled to
teach on their preparation periods, 	but 	they did not 	leave 	any
teacher with less 	than a 	full 	five-period schedule. 	Kamper and
the president 	believed some 	of 	these 	options 	would not 	require
19

Kamper or any other 	teachers 	to 	teach outside 	their current
credentials; 	Keiter recalled there was probably one 	such option.
Kamper 	and 	the 	Federation president 	returned to Wong's
office 	along with Lindsay and Keiter. 	Kamper and the president
presented 	the 	options 	they had developed, 	but 	Lindsay said he was
not 	sure 	he wanted to change 	the master 	schedule. 	Wong promised
to 	discuss 	the 	matter with Lindsay and Keiter and to 	call 	Kamper
the morning of August 	14. 	At 	some point, 	Wong also told Kamper
he 	could raise 	the matter with the Governing Board, 	which was
scheduled to meet 	on August 	22.
Wong, 	Lindsay and Keiter did discuss 	the options presented
by Kamper 	and the 	Federation president. 	Lindsay or 	someone 	on
his 	staff prepared a document 	showing all 	48 	classes 	to be 	taught
by the 	eight 	high 	school 	teachers 	scheduled to 	teach during 	their
preparation periods. 	Wong 	concluded Kamper's 	credential 	did not
authorize 	him to 	teach any of 	those 	courses. 	Wong concluded 	in
part 	that 	Kamper's 	supplementary mathematics 	credential 	for
"grades 	6, 	7, 	8 	and 9" 	did not authorize him to teach algebra or
geometry, 	because 	those 	classes 	had tenth and eleventh graders
and well 	as 	ninth graders. 	Wong did not make use of 	the
credential 	information resources 	of 	the 	County Office 	of
Education 	in 	reaching this 	conclusion.
Lindsay and Keiter both 	thought 	it 	unwise 	to 	change 	the
master schedules, 	which they thought 	represented the best
configuration 	for serving the 	students. 	With regard to the
woodshop 	classes, 	Lindsay thought 	Jacinski was better qualified
20

than Kamper, 	because of Jacinski's 	experience 	teaching the 	class
in the 	1994-95 	school year. 	With regard to the 	animal 	care
class, 	Lindsay thought 	Tulloch was better qualified than Kamper,
because 	of 	her 	educational 	background 	in 	the 	subject.
Kamper was planning to 	leave 	town for a 	few days 	on August
14. 	When Wong did not 	call 	him first 	thing 	in the morning,
Kamper tried to call Wong and then went 	in to 	see him. 	Wong told
Kamper 	the 	master 	schedules 	would not 	be 	changed and 	informed him
again of 	the vacancies 	listed at 	the August 	10 meeting. 	Kamper
again expressed interest 	in the woodshop and animal 	care 	classes.
At 	first 	Wong 	said Kamper 	could not 	teach those 	classes 	because
he 	did not 	have 	the 	appropriate 	credential. 	Kamper pointed out
that 	Jacinski 	and Tulloch were 	not 	fully 	credentialed 	and 	that 	he
himself 	had the 	experience 	to 	qualify 	for a vocational 	education
credential. 	Wong eventually said that 	if 	Kamper applied 	for 	the
vocational 	education 	credential 	he would be 	assigned 	to 	teach the
classes, 	but until 	then he would be assigned to Jacumba
Elementary School. 	Kamper assured Wong he 	would go 	to 	the 	County
Office 	of 	Education that 	day to 	start 	the process.
After talking to Kamper, 	Wong realized the woodshop 	classes
were general 	education courses 	for which a vocational 	education
credential 	would not 	be 	appropriate. 	Wong testified he 	called
the 	credentialing 	supervisor at 	the 	County Office 	of 	Education
and alerted her Kamper was 	coming 	in. 	The 	credentialing
supervisor 	remembered only that 	Wong 	called and 	asked questions
about 	emergency credentials. 	Wong apparently also 	realized
21

Kamper 	could 	still 	teach the woodshop 	classes 	under an emergency
credential, 	as Jacinski had done, 	but Wong thought 	it was more
appropriate 	to get 	an emergency credential 	for Jacinski, 	who was
working toward a 	full 	credential, 	than to get one 	for Kamper.
Wong discussed these 	matters 	with the 	District 	business 	manager,
but 	he 	did not 	discuss 	them further with Kamper.
After talking to Wong, 	Kamper put off his plans 	to leave
town and went 	to the 	County Office 	of 	Education. 	Kamper was
referred to the person in charge of vocational 	credentials, 	who
gave 	him the paperwork and told him he needed 	to get 	a 	signature
from a superintendent, 	director or principal. 	If Wong had
already called the 	credentialing supervisor, 	the 	call 	apparently
had no effect 	on how Kamper was 	treated.
Kamper then called Wong's office, 	but Wong had left. 	When
Kamper said he 	needed a 	signature, 	the 	executive 	secretary told
him to meet with the personnel 	director the next 	day. 	When
Kamper did meet 	with the personnel 	director the next 	day, 	August
15, 	she 	told him Wong had left her no directions; 	apparently Wong
was 	already on 	leave 	in connection with his 	surgery 	scheduled 	for
August 	16. 	The personnel 	director also 	told Kamper a vocational
education 	credential 	was 	inappropriate 	for the woodshop 	classes,
but 	she 	did not 	tell 	him an 	emergency credential 	could be
appropriate. 	When Kamper insisted he needed a 	signature, 	the
personnel 	director 	suggested he 	try Lindsay.
Lindsay was not 	immediately available, 	so Kamper called the
County Office 	of 	Education and was 	referred to 	the 	credentialing
22

supervisor. 	She 	suggested Kamper try to get an emergency-
credential, 	which would require 	an appropriate 	declaration from
the Governing Board, 	and she promised to 	send him the paperwork.
Kamper 	later met 	with Lindsay and asked him to 	sign 	the
vocational 	education credential 	form, 	but 	Lindsay, 	who had not
seen the 	form before, 	would not 	sign 	it without 	direction 	from
Wong.
Wong had his 	surgery as 	scheduled on August 	16. 	That 	same
day, 	Kamper wrote 	a 	letter to Wong which he 	also 	sent 	to all 	the
members 	of 	the Governing Board. 	Kamper recounted the 	events 	of
that 	month and expressed his 	frustration about 	"the 	seeming
unwillingness 	of 	the 	district 	to 	facilitate 	a 	desired 	teaching
assignment 	for me 	for the 	1995-96 	school year." 	Finally, 	he
requested 	"to meet with the 	School Board at 	the August 	22, 	1995
closed session per your 	[Wong's] 	offer on August 	10, 	1995."
When the Governing Board met 	as 	scheduled on August 	22, 	Wong
was 	still on leave, 	but Lindsay, 	Keiter and the business manager
were there, 	as were Kamper and the Federation president. 	Lindsay
and Keiter 	spoke 	to 	the 	Governing Board about 	the 	reauthorization
of 	Chapter 1 	as Title 	I 	and about 	their plans to emphasize 	staff
development. 	Kamper spoke about 	how he could still 	teach at 	the
high school 	and junior high 	school, 	especially if 	the District
signed off 	on 	the 	credentials 	for him to 	teach woodshop 	and
animal care.
The 	Federation president 	testified 	she 	remembered board
member Davis 	saying a 	transfer might 	be 	in Kamper's 	best 	interest
23
'

"since he was 	such a 	troublemaker." 	Kamper 	testified 	similarly,
but 	Lindsay and 	Keiter 	testified 	they did not 	remember 	such 	a
statement, 	and the business manager denied it 	had been made.
Davis 	himself 	denied making such a 	statement. 	Davis 	seemed to be
a 	candid 	and outspoken person; 	presumably that 	is why the
Federation called him as 	a witness. 	I 	credit 	his 	testimony,
corroborated by the business manager, 	that 	he 	did not make 	the
statement 	attributed 	to 	him by Kamper 	and 	the 	Federation
president.
The 	Federation president 	also 	testified she 	"distinctly"
remembered Dr. 	Joel Levine 	(Levine), 	another board member,
pointing at 	Lindsay and Keiter and saying, 	"If 	this 	comes back to
bite us 	in the butt, 	you guys 	are going to be held accountable."
Kamper testified 	similarly, 	but 	Davis 	and Lindsay testified 	they
did not 	remember Levine making 	such a 	statement, 	and the business
manager denied Levine made 	such a 	statement. 	Keiter 	seemed
genuinely 	surprised 	to hear 	the 	statement 	attributed 	to 	Levine;
he 	testified:
Well, 	I 	think 	I'd remember that 	if he 	said
that 	because he's 	saying 	I 	would be held
responsible, 	and I 	don't 	think Joel uses
phrases 	like bite 	in the butt 	or anything.
But 	I 	think 	I would remember that 	just by
being my first, 	you know, 	one of my first
actions 	as 	a Principal 	at 	the 	junior high
school. 	If 	I was being told 	I'd be held
accountable 	for 	something, 	I'd remember that
and I don't.
I 	credit 	Keiter's 	testimony, 	corroborated by the business
manager, 	that 	Levine did not make 	the 	statement 	attributed to him
by Kamper 	and 	the 	Federation president.
24

The next day, 	August 23, 	Kamper was 	informed the Governing
Board had decided to uphold his 	transfer. 	On the 	same day, 	Wong
signed the paperwork 	for Tulloch 	to get 	a vocational 	education
credential 	to 	teach animal 	care. 	Although Wong was 	still 	on
medical 	leave, 	the business manager brought 	him paperwork 	to
sign.
August 	23 	was 	also 	the 	day for teachers 	to report 	for work.
Matern was 	surprised to 	find out 	he 	was 	scheduled to 	teach eighth
grade mathematics. 	He 	told Lindsay he 	did not want 	to 	teach
mathematics 	and asked why he was 	not 	teaching high 	school
physical 	education as usual; 	Lindsay told him it was because
"they needed a math teacher."
Around this 	time, 	it became known that 	Jacinski had not
passed the 	test 	to become 	fully credentialed to 	teach woodshop.
On August 	25, 	the Friday before classes 	started, 	Jacinksi was
called to teach woodshop as a 	substitute, 	rather than as 	a
permanent 	or 	temporary employee.
Sometime 	after the 	first 	day of 	school, 	there was a 	faculty
meeting at 	the 	high school. 	Because 	Jacinski 	had not passed the
test, 	Lindsay mentioned he was 	looking for a shop teacher. 	The
Federation secretary, 	who was present, 	knew Kamper had sought 	the
job 	and asked Lindsay about 	it. 	She 	testified Lindsay told her,
without 	elaboration, 	"that 	it was 	a political 	situation and that
we 	should leave 	it 	alone." 	Lindsay testified he 	did not 	remember
making the 	statement, 	but 	I 	credit 	the 	Federation secretary's
testimony that 	he made 	it. 	She 	also testified Lindsay said there
25

was 	an audit 	coining up and they did not 	want 	to use 	emergency
credentials 	unless 	absolutely necessary.
As 	school began, 	Sullivan became aware of 	Kamper's 	transfer.
She 	assumed at 	first 	someone 	had replaced him as 	a 	credentialed
Title 	I 	instructor. 	When she 	learned this was not 	the case, 	she
spoke 	to Lindsay, 	telling him it was 	"frowned upon" 	(though not
illegal) 	to have 	a program with aides 	rather than a 	credentialed
instructor. 	Lindsay responded that was 	the way he had done 	it
previously and the 	way he 	intended to do 	it. 	Lindsay also
informed her 	similar 	changes 	were 	being made 	at 	the 	junior high
school.
On September 19, 	1995, 	the junior high school 	site council
held an 	"emergency meeting" 	at which 	it voted 	"to move 	in the
direction of 	spending 	[Title 	I] 	funds this way: 	30% 	for staff
development, 	69% 	to extend learning time and purchase equipment,
and 	1% 	for parent 	involvement." 	No 	funds were 	to be 	spent 	on a
credentialed 	instructor.
About a month into the 	school year, 	Jacinski 	asked Lindsay
about 	getting an emergency credential 	so he 	could be paid as 	a
temporary employee. 	Lindsay told him there would be 	no 	emergency
credentials that school year. 	In October 1995, 	however, 	the
District 	signed the paperwork 	for Jacinski 	to obtain 	an emergency
credential. 	Jacinski 	later retook the 	test 	for a 	full 	credential
and passed 	it.
Also in October 1995, 	the new Title 	I 	section of the high
school's 	three-year plan was 	submitted to 	the District Advisory
26

Council, 	which recommended approval. 	In November 1995, 	the
junior high 	school 	site 	council 	was 	still 	working on a new Title
I 	section 	for 	its 	three-year plan; 	the District Advisory Council
ultimately reviewed 	it 	and recommended 	its 	approval 	in March
1996. 	Although Sullivan had concerns 	about 	the new plans, 	she
did not 	oppose 	them.
Kamper's 	transfer to Jacumba 	Elementary School 	gave 	him a
significantly longer commute. 	It 	also 	removed him from what 	had
been his professional 	home 	and made 	it more 	difficult 	for him to
perform his 	duties 	in the 	Federation. 	The 	continuation high
school 	is 	closer to the high school 	and junior high school, 	and
even closer to Kamper's home, 	but he regards 	it as a place 	for
difficult 	students 	and 	"discarded" 	employees.
ISSUE
Did 	the 	District 	retaliate 	against 	Kamper 	in transferring
him?
CONCLUSIONS 	OF 	LAW
In order to prevail 	on a retaliatory adverse 	action charge,
the 	charging party must 	establish the 	employee was 	engaged 	in
protected activity, 	the activity was known to the employer, 	and
the 	employer 	took adverse 	action because 	of 	the 	activity.
(Novato Unified School District 	(1982) 	PERB Decision No. 	210
(Novato).) 	Unlawful motivation is essential 	to the charging
party's case. 	In the absence of direct evidence, 	an inference of
unlawful 	motivation may be 	drawn from the 	record as 	a whole, 	as
supported by circumstantial 	evidence. 	(Carlsbad Unified 	School
27

District 	(1979) 	PERB Decision No. 	89.) 	From Novato and a number
1of 	cases 	following 	it, 	any of 	a host 	of 	circumstances may justify
an 	inference 	of 	unlawful 	motivation on the part 	of 	the 	employer.
Such circumstances 	include: 	the 	timing of 	the 	adverse 	action 	in
relation 	to 	the 	protected 	activity 	(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 	or 	standards 	(Santa 	Clara
Unified School District 	(1979) 	PERB Decision No. 	104); 	the
employer's 	inconsistent 	or 	contradictory 	justification 	for 	its
actions 	(State 	of 	California 	(Department 	of 	Parks 	and Recreation)
(1983) 	PERB Decision No. 	328-S); 	or employer animosity towards
union 	activists 	(Cupertino Union 	Elementary School 	District
(1986) 	PERB Decision No. 	572). 	Once an inference is made, 	the
burden of proof 	shifts 	to 	the 	employer to establish that 	it 	would
have 	taken the 	action complained of, 	regardless 	of 	the 	employee's
protected activities. 	(Novato; 	Martori Brothers Distributors v.
Agricultural 	Labor Relations Board 	(1981) 	29 	Cal.3d 721 	[175
Cal.Rptr. 	626].)
In the present 	case, 	it 	is not 	disputed Kamper engaged 	in
protected activity, 	nor is 	it 	disputed Wong and Keiter had at
least 	some knowledge of his protected activity. 	Lindsay
testified, 	however, 	he did not 	know Kamper was 	active 	in the
Federation 	"probably until 	sometime 	after 	school 	started" 	in 	late
August 	1995. 	Lindsay was new to the District, 	and the 	Federation
28

does 	not 	argue 	Lindsay in 	fact 	knew Kamper was 	a 	Federation
activist 	before 	school 	started. 	I 	credit 	Lindsay's 	testimony on
this point.
The 	District 	argues 	Kamper was 	not 	subjected to 	an adverse
action. 	The District 	does 	not 	dispute 	a mandatory transfer to
Jacumba Elementary School was 	objectively adverse, 	because of 	the
longer commute, 	but 	it points out 	Kamper was offered the
alternative of 	a transfer to the continuation school, 	which would
actually have been 	a 	shorter commute. 	As Wong acknowledged 	in
his letter to Kamper, 	however, 	Education Code section 44865
requires 	a teacher 	to 	consent 	to a 	continuation 	school 	assignment
outside the teacher's credential. 	In California Teachers' 	Assn.
v. 	Governing Board 	(1983) 	141 Cal.App.3d 606 	[190 Cal.Rptr. 	453],
the 	court 	stated:
There 	is 	good reason 	for the 	[Education
Code] 	requirement of consent 	if a teacher is
assigned outside 	the 	scope 	of 	his 	or her
expertise. 	Evaluation is made on the basis
of performance of 	the 	assigned task. 	A
teacher may be unwilling 	to 	risk 	a critical
evaluation while 	teaching outside 	the 	ambit
of his or her credential.
Kamper's 	involuntary transfer 	to 	the 	continuation 	school 	would
thus 	have been objectively adverse 	as 	a matter of 	law.
The 	crucial 	question 	is whether Kamper's 	transfer was
unlawfully motivated. 	In the present 	case, 	I have not credited
the 	testimony attributing to board member Davis 	a 	statement 	that
Kamper's 	transfer might 	be 	in Kamper's best 	interest 	because
Kamper was a 	"troublemaker". 	I have, 	however, 	credited the
testimony attributing 	to 	Lindsay a 	statement 	that 	Kamper's
29

request 	to teach woodshop was a 	"political 	situation" 	that 	should
be 	left 	alone. 	The 	Federation 	suggests 	Lindsay thus 	admitted he
knew of unlawful motivation on the District's part, 	but 	there 	is
no 	apparent 	reason to 	interpret 	Lindsay's 	statement 	that 	way. 	At
the 	time 	Lindsay spoke, 	Kamper's 	request 	had already gone before
the Governing Board, 	the District's ultimate political 	authority.
In that 	sense, 	Kamper's 	request was 	indeed a 	"political
situation," 	which Lindsay might 	legitimately choose 	to 	leave
alone 	once 	the 	Governing Board had spoken.
In the 	absence of an admission of unlawful motivation, 	the
question 	is 	whether 	such motivation 	should be 	inferred 	from
circumstantial evidence. 	In the present 	case, 	Kamper's ultimate
transfer was 	the 	culmination of 	a series of 	decisions: 	the
decision to change the high school program, 	the decision to
change 	the 	junior high school program, 	the decision not 	to 	change
the master schedules, 	and the decision not 	to have Kamper teach
woodshop and animal 	care. 	For there 	to be a prima case of
retaliation, 	there must be reason to 	infer that 	at 	least 	one of
these 	decisions was 	unlawfully motivated.
With regard to 	the 	decision to 	change 	the 	high 	school
program, 	I 	find no reason to infer unlawful motivation. 	When
Lindsay came 	to 	the 	District 	and became 	high school 	principal,
there was 	no 	high school 	Title 	I 	program and no 	three-year plan
for one, 	because there was no expectation of 	funding. 	When
funding became 	a possibility, 	it 	is not 	surprising Lindsay would
make plans 	to move 	toward a 	staff 	development program he 	had used
30

and 	liked 	in another 	school 	district. 	When Lindsay 	first 	shared
his plans with Wong, 	Wong told him to 	"make 	sure" 	he had a 	school
site 	council meeting to approve 	them; 	Wong apparently understood
this was 	the 	established procedure. 	Lindsay followed Wong's
directive, 	and on August 	4 	the high school 	site 	council 	approved
a budget 	reflecting Lindsay's plans. 	It 	is 	odd and unexplained
that 	Lindsay did not 	share 	his 	plans 	with the District Advisory
Council 	at 	its August 	8 meeting, 	as Lindsay said he 	intended to
do, 	but 	I do not 	infer unlawful motivation from that oddity; 	I
have 	credited Lindsay's 	testimony he 	did not 	then know Kamper was
a 	Federation 	activist.
The 	situation was different 	at 	the 	junior high school, 	which
was 	always 	expected to have 	funding, 	and which had a 	current
three-year plan for 1994-1997, 	approved on May 18, 	1994, 	calling
for a 	credentialed 	instructor 	rather 	than 	staff 	development.
Like Lindsay, 	Keiter apparently had legitimate 	reasons 	to make
plans 	to move toward a staff development program, 	but what 	is
striking 	is 	how differently Wong 	responded when 	Keiter 	shared
those plans. 	According to Wong, 	this was 	immediately after the
August 	8 	meeting of 	the District Advisory Council, 	and this was
also when Wong 	first 	realized Lindsay's 	and Keiter's 	plans 	had
implications 	for Kamper. 	Although Wong had previously told
Lindsay to 	"make 	sure" 	to have 	a 	school 	site 	council 	meeting to
approve his plans, 	he apparently said no such thing to Keiter, 	at
least 	at 	the 	time. 	Instead, 	Wong apparently simply accepted
Keiter's 	plans 	for 	staff 	development 	and began 	studying Kamper's
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possible 	transfer. 	No apparent 	attempt was made 	to 	involve 	the
junior high school 	site 	council 	until 	its 	"emergency meeting"
almost 	six weeks 	later, 	on September 19.
It 	thus 	appears 	that when Wong became aware 	changes 	in the
Title 	I 	programs would affect 	Kamper, 	Wong departed from the
established procedure 	of 	requiring prior 	school 	site 	council
approval. 	This departure was not 	explained by any testimony or
other evidence. 	On the 	contrary, 	it 	appears 	from the 	evidence
that prior 	school 	site 	council 	approval 	should have 	been more
important 	at 	the 	junior high school 	than at 	the 	senior high
school, 	because the changes at 	the 	junior high school were
inconsistent 	with 	the 	current 	three-year plan 	approved 	the
previous year. 	At 	the very least, 	this might have 	led Wong to
raise 	the 	issue with Sullivan, 	who was 	responsible 	for the
District's Title 	I 	compliance, 	but 	it did not.
After accepting 	Keiter's plans 	to change 	the 	junior high
school program, 	and after 	studying Kamper's possible 	transfer,
Wong produced the 	letter dated 	"August 	22, 	1995." 	I have
credited 	the 	testimony of 	Kamper 	and 	the 	Federation president
that Wong handed Kamper the 	letter on August 	10. 	Wong did not
explain the August 	22 	date on the 	letter, 	or why it 	referred to
the August 	10 	conference 	as 	having already been held. 	The 	letter
declared Kamper's 	transfer 	to be 	of 	an 	"emergency nature" 	because
categorical 	funds 	had been approved on August 	3 	and the 	District
had received 	its 	estimated apportionment 	on August 	8. 	Wong
testified he 	did call 	the 	State 	Department 	of 	Education on August
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8 	and understood the 	District 	would be 	receiving 	less 	funding,
which worried him. 	Wong did not 	testify, 	however, 	this 	created
any 	"emergency" 	situation, 	nor did he act 	as 	if he did. 	At the
August 	8 	meeting of 	the District Advisory Council, 	Wong still
sought 	(with Kamper's 	support) 	to allocate 	funds 	to the high
school, 	even though 	it would mean less money for the 	junior high
school and other schools. 	Overall, 	it appears 	from the evidence
that Wong's 	letter was written to make 	Kamper's 	transfer 	seem
more urgent 	and 	inevitable 	than 	it 	really was.
It 	is 	true Wong showed some 	apparent 	flexibility in allowing
Kamper to look at 	the master schedules, 	to seek a vocational
education credential, 	and to raise 	the matter with the 	Governing
Board. 	The 	evidence 	suggests 	this 	flexibility was more 	apparent
than real, 	however. 	Despite the options presented by Kamper and
the 	Federation president, 	Wong ultimately told Kamper the master
schedules would not be changed. 	Furthermore, 	when Wong realized
a vocational 	education credential 	would not 	be 	appropriate 	for
the woodshop classes, 	he did not discuss 	the matter with Kamper,
nor did he 	offer 	the 	alternative 	of 	an emergency credential.
All 	of 	these 	actions were 	reasonably close 	in time 	to the
settlement of 	the Federation's 	lawsuit 	against 	the District, 	on
which a tentative agreement was 	signed on May 15, 	1995. 	Wong
acknowledged Kamper had 	"a major 	impact" 	on the 	lawsuit 	and 	its
resolution. 	Wong testified he 	thought 	the 	settlement was 	fair
and he hoped to 	improve the parties' 	relationship, 	but 	this
testimony is 	not 	necessarily inconsistent 	with a preference 	on
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Wong's part 	to 	isolate Kamper, 	the 	Federation's 	reputedly most
litigious activist. 	From the evidence as a whole, 	I 	infer that
Wong's 	acceptance 	of 	Keiter's plans 	to change 	the 	junior high
school program, 	without 	the prior approval 	of 	the 	school 	site
council, 	was unlawfully motivated. 	Because this was one of 	the
events 	actually leading to Kamper's 	transfer, 	the burden shifts
to 	the 	District 	to establish Kamper would have 	been 	transferred
regardless.
It 	does not 	appear that 	the change 	in the high school
program by 	itself would have 	led to 	Kamper's 	transfer. 	Kamper
had taught only two Chapter 1 	classes 	at 	the high school, 	and
without 	them he 	apparently would still 	have 	had three 	classes 	to
teach at 	the 	junior high school. 	Furthermore, 	Kamper had taught
the two high school classes 	for only one year; 	presumably, 	as 	in
prior years, 	Kamper's 	schedule would have been 	filled with other
classes. 	One obvious possibility is 	that 	Kamper would have been
assigned 	to 	teach the 	two 	eighth grade mathematics 	classes Matern
did not want 	to teach. 	As Lindsay explained to Matern, 	"they
needed a math 	teacher."
The 	junior high 	school 	site 	council 	did eventually have 	an
"emergency meeting" 	at which it 	approved the plans 	to change 	the
junior high school program, 	but 	this 	"emergency meeting" 	was not
held until 	September 19, 	1995, 	over three weeks after classes had
begun. 	By then, 	Kamper would presumably have already been
teaching three Title 	I classes at the 	junior high school, 	as 	in
the previous year, 	and the 	remainder of 	his 	schedule would have
34

been 	filled with other classes, 	as 	in prior years. 	The District
did not 	establish Kamper would have 	been 	transferred 	once 	the
school year began, 	given the disruption both to the Title 	I
program and 	to 	the master 	schedules 	that 	would have been 	involved
at 	that 	point. 	The District 	also did not 	establish Kamper would
not 	have 	continued as 	the District's 	"Chapter 	1 	Coordinator" 	for
the 	1995-96 	school year, 	so long as he continued teaching the
classes 	at 	the 	junior high school.
The 	District 	did establish by a preponderance 	of 	the
evidence, 	however, 	that the junior high school Title 	I program,
as well 	as 	the 	high school 	Title 	I program, 	would have been
changed at 	the 	end of 	the 	1995-96 	school 	year. 	By March 	1996,
the 	changes 	in the programs 	and 	in the 	three-year plans 	had
cleared the 	two 	school 	site 	councils 	and the District Advisory
Council. 	It 	thus 	appears 	Kamper would no 	longer would have
continued to teach the 	classes 	and serve 	as 	the 	"Chapter 	1
Coordinator."
It does not necessarily follow, 	however, 	that Kamper would
have been transferred at 	the beginning of 	the 	1996-97 	school
year, 	rather than placed on the master schedules 	for the high
school 	and junior high school. 	The 	situation in 	1996 	would not
have been the same as it was 	in 1995. 	In August 	1995, 	the
District 	was 	asked to 	consider whether or not 	to make 	rather
extensive 	changes 	in 	established master 	schedules 	shortly before
classes were 	scheduled to begin, 	in order to provide 	Kamper with
35

a 	full 	five-period schedule. 	It 	is understandable 	the District
would be 	reluctant 	to make 	the 	changes under those 	circumstances.
In 1996, 	in contrast, 	the question would have been whether
Kamper would be placed on 	the 	master 	schedules 	as 	they were 	being
developed. 	Kamper had been placed on the master 	schedules 	every
year since 	1988, 	even before he taught any Chapter 1 classes, 	and
it 	is 	not 	apparent why he would not be placed on them again. 	If
Kamper had taught Matern's 	two mathematics 	classes 	in 	1995-96,
presumably he would be 	scheduled to 	teach them again 	in 	1996-97;
it would then be 	a question of 	filling his 	schedule with just
three more classes. 	If 	there were questions about 	Kamper's
credentials, 	there would be time 	for those questions 	to be
thoroughly explored, 	or even 	for Kamper 	to 	apply 	for additional
credentials, 	if necessary.
I 	conclude 	the 	District 	has 	not 	established Kamper would
have been transferred regardless of 	his 	Federation activities. 	I
conclude 	the 	District 	did retaliate 	against 	Kamper because 	of 	his
Federation activities, 	in violation of EERA section 3543.5(a).
This 	conduct 	also denied the 	Federation its 	rights, 	in violation
of EERA section 3543.5(b).
REMEDY
EERA section 3541.5(c) 	gives 	PERB:
. 	. 	. 	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 	[EERA].
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In the present 	case, 	the District 	has been found to have violated
EERA section 3543.5(a) 	and 	(b) 	by transferring Kamper in
retaliation for his 	Federation activities. 	It 	is 	therefore
appropriate 	to 	direct 	the 	District 	to 	cease 	and desist 	from 	such
conduct. 	It 	is 	also appropriate to direct 	the District 	to take
affirmative 	actions 	to restore 	the 	status 	quo 	and make 	Kamper
whole.
First, 	the District 	should be directed to rescind Kamper's
transfer. 	The 	Federation has 	asked the 	rescission of 	the
transfer to be effective 	at 	the end of 	the 	school year, 	and 	I
agree 	this 	is 	an appropriate option for the District. 	This may
minimize 	disruption 	to 	the 	District's 	educational 	program and may
also place 	Kamper 	in the 	situation most 	comparable 	to the 	one 	it
appears 	he would have been in at 	the end of 	the 	1995-96 	school
year.
Second, 	the District 	should be directed to pay Kamper the
"Chapter 	1 	Coordinator" 	stipend for the 	1995-96 	school year, 	with
interest 	at 	the 	rate of 	7 percent per annum.
Third, 	the District 	should be directed to pay Kamper 	for his
additional 	mileage 	in 	commuting 	to 	and 	from Jacumba 	Elementary
School, 	until Kamper's transfer is rescinded. 	The District 	shall
pay the mileage 	rate 	established by the 	Internal 	Revenue 	Service,
with interest 	at 	the 	rate of 	7 percent per annum. 	Although
Kamper 	could have 	avoided 	the 	additional 	mileage 	by accepting 	a
transfer to the closer continuation school, 	I 	conclude he was not
required to do 	so, 	for the 	same reason 	I 	have concluded an
37

involuntary transfer 	to 	the 	continuation 	school 	would have been
objectively 	adverse.
Finally, 	it 	is 	appropriate 	the District be directed to post
a notice 	incorporating the 	terms 	of 	the 	order 	in this 	case.
Posting of 	such a notice, 	signed by an authorized agent 	of 	the
District, 	will provide employees with notice the District 	has
acted 	in an unlawful 	manner, 	is being ordered to cease 	and desist
from this 	activity and take 	appropriate 	remedial 	action, 	and will
comply with the order. 	It 	effectuates 	the purposes of EERA that
employees 	be 	informed both of 	the 	resolution of 	this 	controversy
and of 	the 	District's 	readiness 	to 	comply with 	the 	ordered
remedy. 	(Placerville Union School 	District 	(1978) 	PERB Decision
No. 	69.)
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law, 	and upon the entire record in this matter, 	it 	is 	found
the Mountain Empire Unified School 	District 	(District) 	violated
the Educational Employment Relations Act 	(EERA), 	Government Code
section 3453.5(a) 	and 	(b), 	by retaliating against 	employee Fred
Kamper 	(Kamper) 	because of his participation in activities of 	the
Mountain Empire Federation of Teachers 	(Federation), 	by
transferring 	Kamper 	away 	from 	the 	high 	school 	and 	junior 	high
school 	in August 	1995.
Pursuant to EERA section 3541.5(c), 	it 	is hereby ORDERED
that 	the 	District, 	its governing board and its 	representatives
shall:
38

A. 	CEASE AND DESIST 	FROM:
1. 	Retaliating against 	Kamper and other 	employees
because 	of 	their Federation activities.
2. 	By the 	same 	conduct, 	denying the 	Federation its
rights.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF EERA:
1. 	Rescind the 	transfer of 	Kamper away from the 	high
school 	and junior high school. 	The 	rescission may be 	effective
at 	the end of 	the 	school year.
2. 	Pay Kamper the 	"Chapter 	1 	Coordinator" 	stipend for
the 	1995-96 	school year, 	plus 	interest at 	the rate of 	7 percent
per 	annum.
3. 	Pay Kamper 	for his 	additional mileage 	in commuting
to and from Jacumba Elementary School, 	until 	his 	transfer 	is
rescinded, 	at 	the mileage 	rate established by the 	Internal
Revenue Service, 	plus 	interest at 	the rate of 7 percent per
annum.
4. 	Within ten 	(10) 	workdays of 	the 	service of 	a 	final
decision in this matter, 	post 	at 	all work locations where notices
to certificated employees 	customarily are posted, 	copies 	of 	the
Notice 	attached hereto as 	an Appendix. 	The Notice must 	be 	signed
by an authorized agent 	of 	the District, 	indicating the District
will 	comply with the 	terms 	of 	this 	Order. 	Such posting shall be
maintained for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall 	be 	taken to ensure 	the Notice 	is not
39

reduced in size, 	altered, 	defaced or covered with any other
material.
5. 	Upon issuance of a final 	decision, 	make written
notification of 	the 	actions 	taken to 	comply with the 	Order to 	the
San Francisco Regional 	Director of 	the 	Public 	Employment
Relations 	Board, 	in accord with the 	regional 	director's
instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
20 	days of 	service of 	this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should identify by page
citation or exhibit number the portions of 	the record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 00.) 	A document is considered "filed" when
actually received before 	the 	close of business 	(5 p.m.) 	on the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of
Regs., tit. 	8, 	sec. 32135; Code of Civ. Pro. 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
40

a party or filed with the Board itself. 	(See Cal. 	Code of Regs.,
tit. 8, secs. 32300, 32305 and 32140.)
THOMAS 	J. ALLEN
Administrative Law Judge
41