Los Angeles Unified School District (PERB 0514E)

STATE OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOSEPH G. 	BULLER,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-1937
PERB Decision No. 	514
July 1, 	1985
Appearances; 	Joseph G. 	Buller, 	on his own behalf; 	O'Melveny and
Myers 	by Polly Brophy 	for 	Los 	Angeles 	Unified 	School 	District.
Before Hesse, 	Chairperson; Jaeger, 	Morgenstern and Porter,
Members.
INTRODUCTION
HESSE, 	Chairperson: 	This 	case is an appeal to the Public
Employment 	Relations 	Board 	(PERB) 	of 	an administrative 	law
judge's 	(ALJ) 	dismissal of 	charging party's 	unfair practice
complaint 	against 	the 	Los 	Angeles 	Unified 	School 	District
(District). 	A motion to dismiss was 	made by the District at
the conclusion of 	charging party's 	testimony. 	The motion was
granted by the ALJ at 	the hearing, 	and was 	then confirmed 	in a
proposed decision 	issued December 	31, 	1984.
On appeal, 	charging party alleges 	that 	the motion to
dismiss 	should not have been granted. 	Specifically, 	he objects
to 	PERB's 	requirement 	that 	the 	charging party needed 	to 	show
not 	only 	that he 	engaged 	in protected 	activity but 	also 	that 	an
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adverse personnel 	action 	was 	motivated 	by 	that 	protected
activity. 	Charging party also alleges 	that he was 	denied due
process 	when his 	witness 	was 	not 	allowed 	to testify, 	when he
was 	not permitted 	to call 	adverse witnesses 	from 	the 	District
because he had not been 	told of 	the 	need 	to subpoena them, 	and
when 	evidence 	of his 	informal 	conference was 	admitted by 	the
ALJ at 	the 	formal hearing.
DISCUSSION
We have 	reviewed 	the 	findings 	of 	fact 	set 	forth 	in 	the
proposed 	decision 	(attached hereto) 	and 	find 	them 	free 	from
error. 	Accordingly, 	we adopt 	those 	factual 	findings 	as 	our own.
Furthermore, 	we adopt 	the ALJ's 	conclusions 	of law,
consistent 	with 	the 	following discussion.
The 	ALJ reviewed 	the 	evidence presented 	at 	the hearing 	and,
applying 	the 	Board's 	decision 	in Novato Unified 	School 	District
(1982) 	PERB Decision No. 	210, 	concluded that Buller 	failed to
establish 	that 	the 	Notice 	of 	Unsatisfactory Performance 	and 	the
transfer 	were 	issued by 	the 	District because 	of 	Buller's
protected activities. 	The ALJ found, 	and we agree, 	that most
of 	the 	events 	Buller 	described bore 	no 	relevance 	to 	the
allegations 	charged. 	We also agree 	that, 	while certain events
suggested 	a negative 	"attitude" 	toward 	UTLA by 	the 	site
administrator, 	these events 	appear as 	isolated 	incidents 	which,
without more, 	are 	insufficient 	to support a 	conclusion that 	the
District 	would not have acted 	as 	it 	did but 	for 	Buller's
involvement 	in UTLA. 	In so holding, 	we note 	that an employer
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may harbor 	adverse 	feelings 	toward 	an 	employee 	organization 	so
long as 	it 	refrains 	from 	taking 	action against 	any 	employee
because 	of 	the 	exercise 	of 	rights 	guaranteed by the 	Educational
Employment Relations Act 	(EERA). 	Here, 	while the events
described may demonstrate anti-union 	feelings, 	Buller 	failed 	to
link this 	sentiment 	to the personnel 	action taken or, 	indeed,
to any actions 	of 	the 	employer.
We 	also 	reject 	charging party's 	contention 	that 	the 	ALJ
improperly refused 	to permit 	Buller's 	witnesses 	to 	testify on
his behalf. 	Based on Buller's 	representations, 	we 	find that
the 	testimony he 	sought 	to 	introduce 	was 	cumulative 	and merely
would have 	supported 	the 	charging party's 	version of 	the 	events
he 	described. 	The ALJ did not 	dismiss 	the charge because he
disbelieved Buller, 	however, 	but because Buller's 	testimony,
even 	if 	fully supported, 	did not allege clear violations 	of
EERA. 	Thus, 	we 	find 	that 	the 	charge was properly dismissed 	for
failure to state a prima facie case.1
Finally, 	we 	note 	that 	the ALJ did not 	admit 	into evidence
anything 	learned 	from an 	informal 	settlement 	conference. 	The
settlement 	conference was 	referred 	to only in 	the context 	of 	an
•'•Our 	dissenting colleague would 	remand 	to the 	General
Counsel, 	presumably for 	further 	testimony. 	We decline to
remand because 	the 	charging party was 	afforded 	two days 	of
hearing but 	still 	could produce 	no 	evidence 	other 	than 	the
recitation of 	events 	set 	forth on pages 	5-13 	of 	the 	Proposed
Decision.
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earlier 	motion 	to dismiss 	made by the 	District. 	As 	that 	motion
was 	denied, 	and as 	those discussions 	on the record were not
admitted 	to show 	the 	truth of 	statements 	made 	in 	settlement
discussions, 	there 	is no basis 	to overrule the ALJ's 	decision.
ORDER
For 	the reasons 	set 	forth above, 	and 	for 	the 	reasons 	set
forth 	in 	the proposed decision attached hereto, 	unfair practice
charge number LA-CE-1937 	is hereby DISMISSED.
Members 	Morgenstern and Porter 	joined 	in 	this 	Decision. 	Member
Jaeger's 	dissent begins 	on page 	5.
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Jaeger, 	Member, 	dissenting: 	In view of certain ambiguities
or inconsistencies 	in the ALJ's 	treatment of the 	issues, 	I am
unable 	to 	join 	the majority.
The 	ALJ 	found 	that 	charging party 	had provided evidence 	of
four 	instances 	of probable 	animus 	towards 	him based on his
participation in protected activity. 	However, 	according 	to 	the
ALJ, 	each instance was 	too 	"insignificant" 	or 	"without
sufficient weight" 	to establish unlawful motive. 	If the ALJ
intended 	to 	say 	that 	there was 	no 	proof 	that 	those 	instances
were 	related to 	the District's 	adverse action, 	he 	failed to
make 	that point. 	Rather, 	he appears 	to have established an
additional 	"test" 	to 	those 	set 	forth in Novato Unified School
District,1 	one based on 	the ALJ's 	own view of 	the 	importance 	of
demonstrated unlawful conduct.2
Under the Novato test, 	a charging party has 	the burden of
proving 	that 	the 	employer knew of his 	or her participation 	in
protected activity, 	and 	that 	its 	adverse 	action was motivated 	in
whole or in party by that participation. 	It is evidence 	of 	the
presence of animus, 	not the 	depth or intensity of 	that attitude,
that 	satisfies 	the 	charging party's burden.
1 Novato Unified School District 	(1982) 	PERB Decision No. 	210,
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The 	"weightiness" 	of an employer's 	improper conduct may
have 	a 	strong bearing on 	the 	ultimate balancing of 	such 	conduct
and the 	legitimate 	justification 	for its 	adverse action, 	a
function of the 	"but-for" 	test. 	So, 	too, 	may the cumulative
effect of 	a 	series 	of 	relatively minor 	improprieties.
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Because 	the ALJ 	reached 	this 	incorrect conclusion, 	he 	did
not 	find 	it necessary 	to 	consider whether 	the 	demonstrated
animus was 	a motivating 	factor in 	the 	District's 	adverse 	action.
Although 	he 	continued 	to 	press 	the 	charging party 	for proof 	of
"nexus," 	he 	failed 	to 	explain why 	that 	requirement had not been
met.
Novato permits 	an 	inference of 	related unlawful motive 	to
be 	drawn 	from such evidence 	as 	disparate 	treatment of 	the 	charging
party, 	proximity of time 	between 	the participation 	in protected
activity 	and 	the 	adverse 	action, 	inconsistent explanations 	of 	the
employer's 	action, 	or departure 	from established procedures or
standards. 	Here, 	charging party's 	testimony tends 	to demonstrate
the existence 	of the 	first two of these 	conditions, 	and possibly
the 	last. 	The ALJ considered none of 	these.
I 	also 	question 	the 	propriety of 	denying 	charging party 	the
opportunity 	to 	call his 	only witness. 	That ruling was 	clearly
based on 	the 	ALJ's 	view 	that 	charging party had not 	established
a prima 	facie 	case by his own 	testimony. 	Even 	if 	that were 	so,
it was not necessary that he 	do 	so. 	The case-in-chief is made
or 	falls 	on 	the 	record as 	a whole. 	There 	is 	no 	rule 	that the
burden 	rests entirely on 	the 	shoulders of any one witness, 	in
this instance, 	the charging party.
I would reverse 	the 	dismissal 	and 	remand 	the 	matter 	to 	the
General 	Counsel.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOSEPH G. 	BULLER,
Charging 	Party,
V.
LOS ANGELES 	UNIFIED 	SCHOOL DISTRICT
R e s p o n d e n t .
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PROPOSED 	DECISION
(12/31/84)
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Appearances; 	Joseph G. 	Buller, 	Charging 	Party 	in propria
persona; 	Joel Grossman, Esq., O'Melveny and Myers, Attorneys at
Law, 	for Respondent.
Before Allen R. 	Link, Administrative Law Judge.
PROCEDURAL 	HISTORY
On March 	8, 	1984, 	Joseph G. 	Buller 	(hereafter 	Charging
Party or 	Buller) 	filed 	an unfair 	practice charge with 	the
Public 	Employment 	Relations 	Board 	(hereafter 	PERB 	or 	Board)
against 	the 	Los Angeles 	Unified 	School District 	(hereafter
Respondent 	or District) 	alleging 	violations 	of Government Code
section 	3543 	and 	3543.5 	of 	the Educational Employment Relations
Act 	(hereafter 	EERA 	or Act) 	(commencing with 	section 	3540
et. 	seq. 	of 	the Government 	Code).1 On May 16, 	1984, 	the
1All 	section references, 	unless otherwise 	indicated, 	are
to the Government Code.
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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General Counsel 	for 	the 	Board 	issued 	both 	a 	Partial Dismissal
of 	the Charge, 	as well 	as 	a Complaint against 	the District. 	On
June 	5, 	1984, 	the District 	filed 	its Answer 	to 	the Complaint.
The District 	also 	filed 	a Motion 	to Dismiss 	on
November 	1, 	1984. 	The Charging Party's argument or 	answer 	to
that Motion to Dismiss was 	filed on November 	7, 	1984.
The parties met on 	three 	separate 	occasions 	in 	an 	informal
conference 	in an 	attempt 	to 	settle 	the matter. 	The conferences
did 	not 	settle 	the case. 	The 	formal 	hearing 	was 	held at 	the
Los Angeles Regional Office on November 	13 and 14, 	1984. 	On
the 	second day of 	the 	hearing, 	Respondent's Motion 	to Dismiss
was granted 	and 	the 	hearing 	was 	terminated. 	The 	transcript was
prepared and 	sent 	to the parties on December 	11, 	1984, 	and 	the
case was 	submitted 	at 	that 	time.
JURISDICTION
The parties 	stipulated 	to 	the 	Charging 	Party 	being 	a 	public
school 	employee 	during 	the 	events 	at 	issue 	in 	this 	case 	and 	the
Respondent 	being 	a public 	school 	employer 	within 	the 	meaning 	of
section 3540.1.
INTRODUCTION
Charging 	Party has 	been a 	teacher 	at 	the District 	for 	an
extended 	period 	of 	time 	but has 	been 	teaching 	at 	the 	Jane
Addams Continuation High School 	since February 	1979. 	It 	is a
three-teacher 	school. 	Mr. 	Buller 	was 	the United
Teacher-Los Angeles 	(UTLA) 	Chapter chairman at 	that 	site. 	UTLA
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is 	the 	exclusive 	representative 	for 	the 	teaching 	staff 	of 	the
District. 	On September 	12, 	1983, Mr. 	Buller was given a Notice
of Unsatisfactory Performance 	by 	the District. 	Soon 	after
being 	issued 	the 	notice, 	Buller 	was 	transferred 	to Venice High
School on September 	20, 	1983.
Mr. 	Buller 	alleges 	that 	the 	issuance of 	the Notice 	of
Unsatisfactory 	Performance 	and 	the 	subsequent 	transfer 	were 	as
a 	result 	of 	the District 	retaliating 	against 	him 	for 	his
activities 	on 	behalf of UTLA 	at 	his 	work 	site.
MOTION 	TO 	DISMISS
The District, 	at 	the beginning of 	the 	formal 	hearing 	in
this case, 	argued 	its November 	1, 	1984 Motion to Dismiss. 	Such
motion 	was 	based 	on 	the ground 	that 	the District 	already
offered 	to grant, 	unilaterally, 	without admitting 	any
liability, 	the 	full 	remedy 	that 	Charging 	Party could 	obtain
after 	a 	full hearing. 	During 	one 	of 	the 	informal conferences
the District 	and Mr. 	Buller 	entered 	into 	a conditional
settlement agreement. 	The District 	agreed to 	(1) 	rescind 	the
Notice 	of Unsatisfactory Performance, 	and 	(2) 	transfer
Mr. 	Buller, 	to one of six District schools closer 	to his
residence 	than Venice High School. 	Mr. 	Buller 	selected
Cleveland High 	School 	from 	the 	list provided 	by 	the 	District
but 	insisted 	that prior 	to 	such 	Settlement Agreement 	becoming
operative 	he would 	have 	to 	obtain 	a medical 	release 	to 	teach.
Mr. 	Buller 	was 	not 	able 	to 	obtain from his psychotherapist,
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such medical 	release 	so 	the 	Settlement Agreement 	was 	null 	and
void.
Mr. 	Buller 	is presently on disability leave. 	Such 	leave 	is
supported 	by 	letter 	from 	his 	psychotherapist which 	states,
"Patient 	is 	permanently precluded 	from 	return 	to 	teaching 	for
Los Angeles Unified School District". 	The 	letter 	was 	not
admitted 	into 	evidence 	but 	was 	read 	and 	discussed 	during 	the
formal 	hearing. 	Mr. 	Buller 	credibly testified 	that 	his
original 	request was 	to 	be 	returned 	to 	the Jane Addams
Continuation High 	School 	and 	that 	he 	chose 	Cleveland High
School 	only because 	it was 	the most acceptable 	alternative 	if
he was 	not able 	to return 	to Jane Addams.
When 	asked 	if 	there was 	any possibility of 	his 	being 	able
to 	return 	to 	teaching 	at 	the 	Los Angeles Unified 	School
District, Mr. 	Buller replied,
Of course, 	I 	wouldn't claim to speak 	for my
psychiatrist 	. 	. 	. 	but I 	feel that if we
would get 	that paper, 	if we would get the
decision, 	that he might 	feel 	that then the
working 	conditions would 	be 	such 	that 	I
could go 	back 	to 	work 	at Jane Addams,
continue 	. . . .
The District 	insisted 	that Mr. 	Buller's 	permanent
disability 	negated 	the 	necessity 	to 	offer 	to 	return 	him 	to
Jane Addams. 	From Mr. 	Buller's 	testimony 	regarding 	the
permanence 	of 	his 	disability 	it 	is determined 	that 	there 	is 	a
possibility he 	could 	return 	to 	teaching 	at 	the District 	at 	some
time 	in the 	future and 	therefore, 	the 	"disability" 	does not
negate 	the 	necessity of 	such 	an 	offer.
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The Motion 	to Dismiss which was 	based 	on 	the District
unilaterally 	offering 	the 	full 	quantum of 	remedy 	available 	to
the Charging Party, 	was denied. 	It was determined 	that 	the
remedy 	offered 	by 	the District 	contemplated 	a 	transfer 	to
Cleveland High School. 	It 	is within 	the discretion of 	the
judge 	in this case, 	if 	the evidence were to support a 	finding
that 	the District violated 	the Act, 	to 	return Charging 	Party 	to
Jane Addams Continuation High School. 	Mr. 	Buller's 	requested
remedy was to return to Jane Addams. 	Therefore, 	the 	remedy
offered 	by 	the District 	was 	not 	the 	full 	and complete 	remedy
requested 	by 	the 	Charging 	Party.
FINDINGS 	OF FACT
Mr. 	Buller 	was 	a 	teacher 	at 	the Jane Addams 	Continuation
High School, 	a 	school with a principal 	and three 	teachers. 	One
of 	the 	teachers 	is 	appointed 	acting principal 	as 	an 	additional
duty 	to 	his/her 	teaching 	responsibilities. 	The 	other 	teachers
at 	the 	school were George Edgington and Kathryn Genson. 	Both
Mr. 	Buller 	and Mr.Edgington were UTLA members 	and Ms. 	Genson
was 	not, 	although all 	three were members of 	the bargaining 	unit
represented by UTLA. 	Mr. 	Buller 	was 	the UTLA Chapter 	chairman
at 	that 	school 	site.
Mr. 	Buller 	was 	sworn and 	had 	testified 	in a narrative
fashion 	for 	approximately 1-1/2 hours when, 	in 	response 	to
several 	objections 	to 	the 	relevance 	of 	the general direction of
his 	testimony, 	he was directed by 	the 	undersigned 	to 	use 	the
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15 minutes 	of 	the 	afternoon 	break 	to 	search 	through his 	notes
and 	records 	and 	attempt 	to 	locate 	evidence 	that would 	support
an 	inference 	that 	there was 	a nexus 	between his UTLA
chairmanship 	and 	the 	discrimination 	that 	he 	had 	been
experiencing. 	When he 	returned 	to 	the 	witness 	stand he gave
several 	examples of such events, 	but stated 	that 	it was
difficult 	to 	provide 	such 	information 	within 	the 	very 	short
period of 	time available. 	After 	some discussion, 	the hearing
was 	continued 	until 	the 	next morning 	at 	9:30 	a.m. 	Mr. 	Buller
was 	directed 	to 	spend 	the 	intervening 	time with his 	records 	and
to come 	back 	to 	the 	hearing 	the 	next day prepared 	to provide
all 	of 	his 	very 	best 	examples 	of 	events 	that could 	be 	used 	to
support 	an 	inference 	that 	there 	was 	a connection 	between 	his
activities 	on 	behalf 	of 	UTLA 	and 	the 	actions 	that 	he 	felt
showed 	the 	District 	was 	discriminating 	against 	him.
The 	next morning Mr. 	Buller 	testified as 	to 	those events
that he 	felt 	supported 	the 	existence 	of 	a nexus. 	The 	events 	he
related, 	both at 	that 	time, 	and during 	the preceding afternoon
are as follows:
1. 	It 	is customary at district 	schools 	for 	the
administration, 	at 	the end of 	the 	summer 	vacation, 	to 	send 	a
"welcome 	back" 	letter 	to 	the 	teachers 	or 	to phone 	the 	teachers
so 	they would 	know when 	and where 	they are 	to 	report 	back.
Ms. 	Caruso did 	this 	to 	the 	nonunion member 	but did 	not do 	so 	to
the two union members. 	In fact, 	Ms. 	Caruso arranged for 	the
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nonunion 	teacher 	to 	attend 	both 	the 	district 	superintendent's
general greeting 	to administrators meeting on August 	27, 	198 2
and the September 	1, 	198 2, 	secondary administrators' 	meeting.
2. 	On September 14, 	198 2, Ms. 	Caruso removed Mr. Edgington
from being 	the 	acting 	principal 	of 	the 	school 	and 	appointed
Ms. Genson to that position. 	When Mr. 	Buller told Ms. 	Caruso
that 	he 	would 	have 	been willing 	to 	have 	been 	acting 	principal
she said, 	"I 	never even thought of 	it." 	He entered 	into a
dialogue with Ms. 	Caruso over 	a period of 	time 	encompassing 	a
number 	of 	contacts 	wherein 	she 	told 	him that 	she 	did 	not 	feel
that he 	had 	administrative qualifications. 	She 	offered 	to
provide private 	instructions 	in 	administrative 	skills 	but 	never
provided 	such 	instruction. 	She 	asked Mr. 	Buller 	to 	list 	the
subjects 	upon which he wanted 	instruction. 	He 	felt 	that as 	she
was presently holding 	the 	job 	she would have 	a 	better 	idea 	as 	,
to what 	subjects must 	be covered. 	His primary point was 	that
Ms. 	Genson, 	the nonunion teacher, 	did not have to ask for 	and
obtain private 	instructions 	to 	be 	appointed 	acting principal.
3. 	On December 1, 	198 2, George Edgington told Mr. 	Buller
that 	he 	was going 	to 	try 	to get 	a UTLA 	representative 	to come
to 	the Jane Addams campus 	to 	talk 	to 	them about 	forming 	a UTLA
chapter.
On December 	2, 	198 2, 	the Continuation Education Office 	sent
Bonnie Bahny 	and Daryl Malm 	to 	the campus 	to help 	the 	teachers
with 	their multi-faceted 	training contracts. 	Ms. 	Genson was 	in
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New York 	on 	a personal 	vacation 	with 	her 	husband 	and 	did 	not
have 	to complete 	the 	extra 	assignments 	assigned 	to
Mr. 	Edgington and Mr. 	Buller by Ms. 	Bahny and Mr. 	Malm.
4. 	On March 14, 	1983, Mr. 	Buller, with Mr. Edgington as a
witness, 	requested in writing, Ms. 	Caruso to provide the
teachers with 	(1) 	specified written 	instructions 	regarding
classroom release policies, 	and 	(2) 	a clearer prioritization of
all general 	assignments 	before 	any 	teacher 	is given 	any written
material critical of performance. 	Mr. 	Buller 	had given
Ms. 	Caruso only 	two other 	such 	requests over 	the 	school year.
On the very next day, March 15, 	1982, Dr. 	Calvin Burke,
Ms. 	Caruso's 	immediate 	superior who 	is 	in charge of all of 	the
4 2 or 	43 district continuation schools, 	came to 	the Jane Addams
site 	and had 	an extremely abusive 	talk with Ms. 	Caruso,
Mr. 	Buller and Mr. 	Edgington. 	Ms. 	Genson was on a personal
vacation Caribbean cruise 	at 	the 	time. 	Dr. 	Burke 	stated 	that
Buller 	and Edgington were 	not doing 	a good 	job. 	He 	made 	no
reference 	to 	union activity nor did Mr. 	Buller 	know 	if
Dr. 	Burke 	even 	knew of 	his UTLA 	chapter 	chairmanship.
Mr. 	Buller 	testified that Dr. 	Burke probably visits 	each
continuation 	school only once 	a year.
March 15, 	1983, 	was the same day that a meeting, 	regarding
Mr. 	Edgington's 	grievance 	that complained 	about 	the 	extra paper
work 	occasioned 	by 	the multi-faceted contracts, 	was 	to be
held. 	A 	UTLA 	representative, 	Will Mecheam, 	came 	to campus
8

to 	attend 	the 	grievance 	hearing 	which 	was 	scheduled 	for
1:30 p.m. 	At 	that exact 	same time, 	Ms. 	Caruso scheduled a
meeting 	for 	Buller 	and 	Daryl Malm 	to 	discuss 	the 	multi-faceted
student 	training 	contracts Mr. 	Buller 	had been 	assigned 	to do.
Buller 	was 	unable 	to 	attend 	the grievance meeting.
Mr. 	Buller alleged that, 	in his opinion, 	union activity in
the 	district's 	continuation 	schools 	is 	extremely weak 	and 	that
Dr. 	Burke 	felt 	so 	strongly on this 	subject 	that 	he 	would
personally want 	to come 	out 	and put 	down 	the 	union 	activity
immediately. 	He 	(Burke) 	would then want 	to 	see 	that he
(Buller) 	would 	receive 	a Notice 	of Unsatisfactory Performance
and 	then would 	see 	to 	it 	that 	he 	would 	be 	transferred 	out 	of
the 	continuation 	school. 	Buller 	cited 	the 	fact 	that 	all 	of
these 	things 	were 	actually 	accomplished 	to 	justify 	his
allegations.
5. 	In January 	1983 	some of 	the 	students 	had 	asked 	for 	the
creation 	of 	a 	fifth period 	from noon 	to 	1:00 	p.m. 	During 	a
student body meeting on January 	21, 	1983, 	Ms. 	Caruso stated,
"There 	cannot 	be 	any 	12:00 	class 	because 	the 	teacher's 	union
requires 	a duty-free 	lunch."
Mr. 	Buller 	spoke 	to Ms. 	Caruso 	in private and 	told her 	that
the 	teachers 	at 	their 	school were 	very cooperative 	and 	that
arrangements 	could 	have 	been made 	for 	a 	fifth period 	if 	it 	was
really 	that 	important 	for 	the 	students. 	He 	told 	her 	that 	he
thought 	it was 	in very 	bad 	taste 	for 	her 	to 	use 	the public
forum 	of 	a 	student 	body meeting 	to make 	an 	anti-union 	statement.
9

6. 	On February 	25, 	1983, 	a day that Ms. 	Genson was going
to be 	skiing 	at Mammoth, 	Ms. 	Caruso arranged for Daryl Malm to
help Mr. 	Buller with his multi-faceted contracts. 	Malm kept
Buller 	working 	until after 	his 	regular 	school hours. 	He 	should
have 	been 	through working 	at 	2:50 	but 	was 	not 	able 	to 	leave
until 	3:20 	p.m. 	On 	the previous day Mr. 	Buller 	had 	been
assigned 	to 	do 	three 	homework 	counseling 	records 	and 	other
clerical work 	that 	the 	office manager 	should 	have 	done. 	He 	was
the only one 	required 	to do 	this extra work. 	Ms. 	Genson had
been 	asked 	to 	help Mr. 	Buller 	with 	his 	student credit 	folders
but 	she wrote Ms. 	Caruso a note 	stating 	that she was 	unable 	to
help him because 	she 	had 	her 	own work 	to do.
7. 	On December 17, 	198 2, Dr. 	Calvin Burke came to the
campus. 	Buller, 	as UTLA 	representative, 	told him, 	thinking
that 	it would 	be confidential, 	that 	the 	office manager 	had 	been
absent 	at 	least 	27 	times 	during 	the previous 	school year,
1981-8 2, 	and was continuing 	to 	be 	absent 	at 	about that 	same
rate during 	the 	198 2-83 	school year. 	He 	stated 	that 	this
affected 	his 	ability 	to 	do 	the multi-faceted 	work 	because 	the
office 	manager 	was 	supposed 	to 	do 	the duplicating 	for 	the
teachers. 	Despite 	the confidential 	nature of 	that
communication, 	Dr. 	Burke told Ms. 	Caruso about Buller's
comments 	and 	she 	became 	indignant 	at what 	she perceived 	as 	a
charge 	that 	she was 	unable 	to control her 	own clerical 	staff.
Mr. 	Buller 	felt 	that he 	was within his 	rights 	as UTLA 	chapter
chairperson 	to make 	those 	statements 	to Burke.
10

8. 	On June 15, 	1983, 	at 	8:05 a.m., 	after 	school was
supposed 	to 	have 	started, 	and while 	students were 	still milling
around the halls, 	Ms. 	Caruso called the teachers 	into the
office. 	Mr. 	Edgington had 	asked 	some questions 	about 	just how
specified 	entries 	should be made 	in 	the 	roll book. 	When 	the
teachers went 	into the office, Ms. 	Caruso, 	in a loud voice said
three 	things: 	"(1) 	I don't want to hear 	anything 	about the
UTLA, 	(2) 	Don't bring the union into this, 	and 	(3) 	I have my
own definitions 	of what democracy will be". 	There was 	no
evidence proffered 	to 	explain why Ms. 	Caruso directed 	her
remarks 	at UTLA 	in 	this matter.
This 	occurred 	in 	the 	last few days 	of 	the 	school year 	and
the 	teachers 	were 	trying 	to clarify what 	they were 	to 	do 	with
their 	roll books, 	etc. 	Mr. 	Buller 	felt that these 	statements
were 	inappropriate for 	two reasons: 	(1) 	he felt 	it was an
improper 	time 	and place 	for 	these 	types 	of 	statements when 	the
students were milling about, 	and 	(2) 	he 	resented her 	trying 	to
keep UTLA 	out 	of 	the 	operation of 	a 	school matter 	such as 	that.
9. 	On September 	28, 	198 2, Mr. 	Buller and his fellow
teachers were 	required 	to 	attend 	a meeting 	at Los Angeles High
School, 	Continuing Education. 	They were supposed 	to be 	there
at 	1:00 p.m. 	The 	Jane Addams classes 	let out 	at noon, 	and 	the
teachers had 	last-minute duties 	to complete. 	In 	effect, 	this
meant 	that 	the 	teachers had 	no duty-free 	lunch. 	Mr. 	Buller did
not 	file 	a grievance 	or 	otherwise make 	a 	fuss 	about 	losing
11

their 	duty-free 	lunch. 	He 	cited 	this circumstance 	as 	an
example of his 	reasonableness.
10. 	On February 	2, 	1983, 	at a faculty meeting, Ms. 	Caruso
set 	forth 	some 	very 	unreasonable 	multi-faceted 	contract
requirements. 	Everyone 	of 	the 	teachers present 	said 	that 	it
was 	impossible 	to get 	this multi-faceted work done 	by 	June 	17.
Mr. 	Buller 	cited 	this example 	to 	show that even 	though 	a 	lot of
the 	items 	in 	his Notice 	of Unsatisfactory 	Performance 	dealt
with 	his 	not 	being 	able 	to 	complete 	specified multi-faceted
assignments, 	he was not 	the only one 	that thought 	these
assignments 	were 	unreasonable.
11. 	On February 15, 	1983, 	Ms. 	Caruso and Mr. 	Buller were
discussing Mr. 	Buller's 	actions 	vis-a-vis 	a certain 	student.
Mr. 	Buller became discouraged and said, 	"Well, 	what motivation
do 	I 	have 	to continue working here or continue 	trying 	to do my
best?" 	Ms. 	Caruso said, 	"Your 	salary". 	He 	took 	this as an
implication of a 	threat 	to fire him. 	Two days 	later Ms. 	Caurso
suspended 	this 	same 	student 	when Ms. 	Genson 	reported 	him doing
a 	relatively mild 	thing, 	restroom loitering. 	Mr. 	Buller 	felt
that 	this was 	an example of 	the disparate manner 	in which
Ms. 	Genson was given administrative 	support and he was 	not.
12. 	On March 	21, 	1983, 	at a staff meeting Ms. 	Caruso
stated, 	"We're going 	to have 	to 	keep accurate 	staff attendance
(records)". 	Mr. 	Buller replied,
"Well, 	let's 	do 	that," 	because 	we'd 	been 	—
12

most of 	us had 	been 	signing 	in 	all along,
"and 	especially 	let's 	keep 	track 	of 	the
attendance of Yolie" 	(Yolanda Pina - 	the
office manager) 	who was absent so often.
13. 	August 10, 	198 2, during a meeting with Dr. 	Calvin
Burke, 	Mr. 	Buller was told by Dr. 	Burke 	to let him know if
Ms. 	Caruso 	told him to develop courses 	of curriculum. 	A 	number
of 	times he did 	inform Dr. 	Burke 	that this had happened. 	Dr.
Burke 	did 	nothing 	to prevent 	Buller 	from being 	punished 	for 	not
developing 	curriculum 	courses 	for 	the 	multi-faceted 	contracts.
14. 	On May 4, 	1983, 	at 	2:10 p.m., Ms. 	Caruso began to try
to question Mr. 	Buller 	in the presence of Daryl Malm.
According 	to Mr. 	Buller, 	it 	is against 	the contract for 	two
administrators 	to 	begin questioning 	a 	teacher 	regarding 	a
possible 	disciplinary 	situation 	without 	the 	teacher 	having
access to a witness. 	For some reason, Ms. 	Genson was not on
campus. 	For 	some reason, 	Mr. 	Edgington had been sent by
Ms. 	Caruso down 	to 	the 	Continuation Education Research Center
in Van Nuys.
When 	she 	began 	asking 	questions 	that 	could potentially 	lead
to discipline, 	he 	reminded her 	of 	the UTLA contract 	and 	she
said, 	"It's always been this way between you and me". 	He 	felt
that he was merely asserting contractual 	rights, 	saying 	that
this 	situation 	should 	not 	exist, 	and 	she 	became 	extremely 	angry
because he was doing 	it.
13

ISSUE
Did 	Charging 	Party prove 	that 	a 	nexus 	existed 	between 	his
UTLA 	chapter 	chairmanship 	and 	the District's 	issuance 	of 	a
Notice 	of 	Unsatisfactory Performance 	to 	him?
CONCLUSIONS 	OF LAW
The Test 	for 	Section 3543.5 	(a) 	Violations
The Board, 	in Carlsbad Unified 	School District 	(1/30/79)
PERB Decision No. 	89, 	set 	forth a test 	for 	the disposition of
charges alleging violations of section 3543.5 	(a):
(1) 	A 	single 	test 	shall be 	applicable 	in
all 	instances 	in which violations of
section 3543.5 	(a) 	are alleged;
(2) 	Where the charging party establishes
that 	the 	employer's conduct 	tends 	to or 	does
result 	in 	some 	harm to 	employee 	rights
granted 	under 	the EERA, 	a prima 	facie case
shall 	be deemed 	to exist;
(3) 	Where the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification 	based 	on 	operational
necessity, 	the 	competing 	interest of 	the
employer 	and 	the 	rights 	of 	the 	employees
will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
(4) 	Where the harm is 	inherently
destructive of employee rights, 	the
employer's conduct will 	be 	excused 	only on
proof 	that 	it was 	occasioned 	by
circumstances 	beyond 	the 	employer's 	control
and 	that 	no 	alternative 	course 	of 	action was
available;
(5) 	Irrespective of the foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown 	that 	the
employer 	would 	not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an unlawful
motivation, 	purpose or 	intent. 	(Emphasis
added.)
14

Proof 	of Unlawful 	Intent where Offered 	or
Required
Unlawful motivation, 	purpose or 	interest 	is
essentially a 	state 	of mind, 	a subjective
condition generally 	known 	only 	to 	the
charged 	party. 	Direct 	and 	affirmative 	proof
is 	not always available or possible.
However, 	following 	generally accepted 	legal
principles, 	the presence of 	such unlawful
motivation, 	purpose or 	intent may be
established 	by 	inference 	from 	the 	entire
record.2
In Novato Unified School District 	(4/30/8 2) 	PERB Decision
No. 	210, 	the Board clarified 	the Carlsbad test for 	retaliation
or 	discrimination 	in 	light of 	the NLRB decision 	in Wright Line
(1980) 	251 NLRB 1083 	[105 LRRM 1169]. 	In Novato, 	unlawful
motive must 	be 	proven 	in order 	to 	find 	a violation.
Mr. 	Buller 	has 	an absolute 	right to participate 	in the
activities 	of UTLA 	to whatever 	extent 	he chooses. 	To 	the
extent 	that 	the District's 	issuance 	of 	a Notice 	of
Unsatisfactory 	Performance 	and 	his 	subsequent 	transfer 	to
Venice High 	School 	inhibited 	that participation 	it 	resulted 	in
a 	harm 	to 	a 	right guaranteed 	by 	the Act.
However, 	the crucial question 	in this case 	is not whether
the District's 	actions 	resulted 	in 	such 	a harm but 	rather, 	did
the District 	issue 	the 	notice 	and 	transfer Mr. 	Buller 	because
of 	such protected 	activities.
2Republic Aviation Corp. 	v. 	NLRB 	(1945) 	324 U.S. 	793 	[16
LRRM 620]; 	see also Radio Officers Union v. 	NLRB 	(1954) 	347
U.S. 	17 	[33 LRRM 	2417].
15

Event numbers 1, 	5, 	6, 	9, 	11, 	12 and 13, 	as related by
Mr. 	Buller above, 	have no relevance at all to either
discrimination 	or 	proof 	of 	the 	existence 	of 	the 	nexus 	necessary
to prove 	the charge, 	or 	such proof was 	so 	slight as 	to be de
minimus.
Event numbers 	2, 	3, 	and 	10 	related 	to circumstances which
tend 	to 	support 	a conclusion 	that Mr. 	Buller 	was being 	treated
somewhat differently 	than 	the 	nonunion member 	teacher 	at 	the
school. 	However, 	there was no evidence 	in the recitation of
these 	events 	that 	would 	support 	an 	inference 	that 	such
disparate 	treatment was 	the 	result 	of 	an animus 	towards UTLA 	or
Mr. 	Buller's UTLA 	chairmanship.
Event numbers 	4, 	7, 	8 and 14 could be 	interpreted so as 	to
provide 	evidence which 	relates 	to 	the 	attitude 	of 	the 	site
administrator 	towards UTLA. 	However, 	the weight of 	such
evidence 	is 	slight 	and 	insufficient 	to 	support 	an 	inference
that 	the Notice 	of Unsatisfactory 	Performance 	was 	issued 	or
that 	the 	transfer 	was 	effected due 	to Mr. 	Buller's 	protected
activities.
Event No. 	4 - Buller and Edgington, 	in writing, 	requested
Caruso 	to 	provide 	them with 	specified 	written policies
regarding 	their 	job duties. 	On the 	next day 	the 	district
administrator 	in charge 	of 	over 	40 	district continuation
schools came 	to 	the Jane Addams campus 	and 	told Buller 	and
Edgington 	they were 	not doing 	a good 	job.
16

Mr. 	Buller's contention that Dr. 	Burke 	immediately 	rushed
out 	to 	the 	Jane Addams 	Continuation High School 	in 	retaliation
for 	the 	request 	for 	written policy determinations 	is 	not
reasonable. 	There was no evidence proffered 	that 	the district
reacted 	in 	any manner 	when Edgington's 	grievance 	was 	filed.
Certainly 	a 	formal 	grievance 	is more 	serious 	and potentially
challenging 	manifestation of 	union 	activity 	than 	a 	simple
written 	request 	from two 	teachers.
On 	the 	same 	day 	a district 	staff 	instructional 	advisor 	came
to 	the campus 	and had 	a meeting with Mr. 	Buller 	regarding 	his
multi-faceted 	contracts. 	That 	meeting 	was 	scheduled 	for
exactly the 	same 	time 	as 	a grievance 	hearing was 	scheduled.
However, 	there were 	severe 	limitations on 	the times 	available
to 	have 	such meetings. 	The 	teachers were 	required 	to 	teach
four 	periods, 	from 8:00 a.m. 	to 	noon, 	each day. 	A duty-free
lunch 	period 	was 	guaranteed 	by 	the 	collective 	bargaining
agreement. 	The 	workday 	terminated 	at 	2:50 p.m. 	There 	were
fewer 	than 	two 	hours 	available 	to 	schedule 	any and 	all meetings
in any given day. 	The 	fact 	that 	the 	instructional 	advisor's
meeting 	overlapped 	the 	grievance meeting 	is 	not 	surprising
under 	all 	of 	the circumstances 	and 	does 	not 	necessarily 	infer
that 	the 	scheduler was trying 	to 	limit Mr. 	Buller's
participation 	in 	the grievance meeting. 	Even 	if 	it does
suggest a degree of union animus 	its weight 	is slight and
insufficient 	to 	support 	an 	inference 	that 	the Notice 	of
17
'

Unsatisfactory Performance 	was 	issued 	as 	a 	result 	of 	such
animus.
Event No. 	7 	- Mr. 	Buller 	blamed his 	inability to complete
some 	of 	his 	assigned 	tasks 	on a classified co-worker. 	He
transmitted 	this 	excuse 	to 	his 	supervisor's 	supervisor 	in 	what
he 	assumed 	would 	be 	a confidential 	communication. 	His 	second
level 	supervisor 	ignored 	the 	confidentiality 	of 	the
communication 	and 	Buller's 	immediate 	supervisor 	negatively
reacted 	to Mr. 	Buller's comments.
There 	was 	no 	evidence proffered 	that 	the 	immediate
supervisor 	negatively 	reacted 	to 	the 	union 	activity 	but 	rather
the 	reaction 	was 	directed more 	specifically 	towards 	a
subordinate 	"going 	over 	her 	head" 	and 	suggesting 	that 	she 	was
unable 	to control 	her 	own clerical 	staff. 	The direction of
Mr. 	Buller's 	complaint 	regarding 	the 	classified 	employee 	seemed
to 	be 	in 	the 	nature of defense 	to complaints 	against 	him rather
than a more 	traditional general defense 	of employee 	rights,
which may have 	been 	the 	reason 	for 	Dr. 	Burke's disregard 	of 	the
confidentiality 	of 	the 	communication.
Once 	again 	this event may 	suggest 	a degree 	of 	union animus
but 	its weight 	is 	slight 	and 	insufficient 	to 	support 	an
inference 	that 	the District's 	actions were 	the 	result 	of 	such
animus.
Event No. 	8 - Mr. 	Buller 	is probably justified 	in taking
exception 	to Ms. 	Caruso's 	statements 	regarding 	the 	union not
18

being 	brought 	into the 	roll book entry dispute. 	However, 	an
isolated 	outburst 	by 	a 	school 	administrator 	during 	the 	pressure
packed year-ending 	school days, 	absent 	some 	other 	connective
circumstances, 	is 	insufficient 	to 	support an 	inference that the
subject 	notice 	and 	transfer 	were 	the 	result 	of 	retaliation 	for
protected 	activities.
Event No. 	14 	- Mr. 	Buller testified that he told Ms. 	Caruso
that 	she 	could 	not discuss matters 	that 	could potentially 	lead
to discipline 	unless 	he had 	an opportunity 	to have 	a witness or
representative present. 	There 	is no evidence that 	she 	ignored
his comments 	and continued 	to discuss 	such matters. 	His only
complaint 	seems 	to 	be 	that she 	said, 	"It's 	always 	been this way
between you 	and me," 	which would 	lead 	one 	to 	believe 	that 	she
was 	not pleased with Mr. 	Buller's assertion of his contractual
rights 	in 	this matter. 	To 	the 	extent 	that 	such displeasure
manifests 	a 	frustration with the 	limitations on 	District
action(s) 	set 	forth 	in 	the contract 	and 	therefore 	a degree 	of
union animus, 	it supports Mr. 	Buller's case. 	However, 	as in
the analysis of 	the three other events, 	supra, 	the weight given
such degree 	of 	animus 	is 	slight and 	is 	insufficient 	to 	support
an 	inference 	the 	District's 	actions 	were 	a 	result 	of 	such
animus.
Mr. 	Buller 	entered 	into evidence a personal journal, 	37
pages 	in length, 	of 	the activities at his school. 	This journal
sets 	forth 	the 	comings 	and goings 	of 	all 	employees 	and 	sets
forth 	a detailed 	recitation of 	all events 	and 	visitors 	on
19

campus 	for 	the 	198 2-83 	school year. 	It 	has 	very narrow margins
and, 	is 	single 	spaced and 	is, 	at the very least, 	an exhaustive
chronicle 	of 	the 	events on 	the 	campus during 	that 	school 	year.
Mr. 	Buller 	had 	sufficient time and, 	due to the journal,
sufficient resources available, 	to set forth at the hearing, 	any
and 	all evidence 	supporting 	his case. 	He was able 	to provide
only 	the 	two 	or 	three 	isolated 	incidents of 	the 	site
administrator's 	displeasure 	with 	his 	union-related 	behavior 	in
specific circumstances. 	The District 	issued 	its Notice of
Unsatisfactory 	Performance 	based 	on 	51 	separate 	incidents
which, 	it alleged, 	constituted unsatisfactory performance.
Most 	of 	these 	incidents dealt with Mr. 	Buller's conduct
regarding 	the 	conversion 	of 	his 	student 	educational 	contracts
to 	the multi-faceted 	format. 	The 	isolated 	incidents 	regarding
his 	union-related 	behavior 	do 	not 	provide 	sufficient 	evidence
to 	support 	an 	inference 	that 	the district 	issued 	such 	a 	notice
and 	transferred Mr. 	Buller 	to Venice High 	School 	because 	of
such 	union-related 	activity 	and 	not 	because 	of 	his 	behavior
regarding 	the multi-faceted contract. 	Nor 	did 	the 	evidence
support 	a 	conclusion 	that 	the 	notice 	would 	not 	have 	been
issued, 	nor 	the 	transfer 	have been effected, 	but 	for
Mr. 	Buller's 	protected activities.
CONCLUSION
For 	all 	of 	the 	foregoing 	reasons 	and 	based 	on 	the 	record 	as
a whole, 	it 	is determined that there was no 	nexus established
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between Mr. 	Buller's protested activities, 	i.e., 	UTLA chapter
chairmanship 	and 	the Notice 	of 	Unsatisfactory 	Performance 	or
the 	disciplinary 	transfer 	given 	to 	him. 	As 	there was 	no 	nexus
proven 	there can be no 	violation of 	section 3543.5 	(a) 	of 	the
Act. 	As 	there 	is 	no violation 	the charge 	and Complaint must 	be
DISMISSED.
PROPOSED 	ORDER
Under 	all 	of 	the 	foregoing 	reasons 	and 	the 	entire 	record
contained 	herein, 	the 	entire 	unfair practice charge 	and
complaint 	issued 	against 	the 	Los Angeles 	Unified 	School
District 	is DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part III, 	section 3 2305, 	this Proposed Decision and Order 	shall
become final on January 	22, 	1985, 	unless a party files a timely
statement of exceptions. 	In accordance with the rules, 	the
statement 	of 	exceptions 	should 	identify 	by page 	citation 	or
exhibit 	number 	the portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part III, 	section 3 2300. 	Such statement of exceptions and
supporting 	brief must 	be 	actually 	received 	by 	the 	Public
Employment Relations Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento before 	the close of 	business 	(5:00 p.m.) 	on
January 22, 	1985, 	or sent by telegraph or certified United
States mail, 	postmarked 	not 	later 	than the 	last day for 	filing
in 	order 	to 	be 	timely 	filed. 	See 	California Administrative
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Code, 	title 8, 	part III, section 32135. 	Any statement of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon each party 	to 	this proceeding. 	Proof 	of
service 	shall 	be 	filed with 	the Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32300 and 32305.
Dated: 	December 31, 	1984
Alien R. 	Link
Administrative 	Law 	Judge
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