San Bernardino City Unified School District (PERB 1602E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN BERNARDINO ASSOCIATION OF
SUBSTITUTE TEACHERS,
Charging Party,
V.
SAN BERNARDINO CITY UNIFIED SCHOOL
DISTRICT,
Respondent.
Case Nos. LA-CE-4345-E
LA-CE-4350-E
PERB Decision No.
	1602
February
	24,
	2004
Appearances: Wohlner; Kaplon, Phillips & Young by Kenneth P. Young and Ralph M.
Phillips, Attorneys, for San Bernardino Association
of
Substitute Teachers; Atkinson,
Andelson, Loya, Ruud & Romo by Sherry G. Gordon, Attorney, for San Bernardino
City
Unified School District.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: These consolidated cases come before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the San Bernardino City Unified
School District (District) to the proposed decision
of
the administrative law judge (ALJ). 	The
charges filed by the San Bernardino Association
of
Substitute Teachers (Association) alleged
that the District violated the Educational Employment Relations Act (EERA) 1
by retaliating
against two substitute teachers for their protected activity. The ALJ found that the District
violated EERA by removing the two substitute teachers from the eligibility list for employment
because
of
their activities in the Association's organizing campaign. In reaching this finding,
1EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all
statutory references herein are to the Government Code.

the ALJ rejected the District's affirmative defense that it would have removed both teachers
from the eligibility list even absent any protected activity.
After reviewing the record in this case, including the proposed decision, the
District's
exceptions, and the Association's response, the Board declines to adopt the proposed decision
of
the ALJ. Instead, the Board issues the decision below dismissing the charge and complaint.
PROCEDURAL HISTORY
The Association claims that the District removed two substitute teachers from
the
employment eligibility list because
of
their support for the Association's organizing campaign.
The District denies any wrongdoing and contends that it would have taken the actions
complained
of
even in the absence
of
any protected activity.
On November 8, 2001, the Association filed an unfair practice charge in Case
No. LA-CE-4345-E against the District alleging that the District removed substitute teacher
Pat Johnson (Johnson) from the eligibility list because
of
her activities in support
of
the
Association. 	On March 15, 2002, the Office
of
the General Counsel issued a complaint
alleging that the District violated EERA section 3543.S(a) and (b)2
by
this conduct.
	In
its
answer to the complaint, the District denied any wrongdoing and raised mootness as
an
affirmative defense, claiming that Johnson had been reinstated.
On November 27, 2001, the Association filed an unfair practice charge in Case
No. LA-CE-4350-E alleging that the District removed substitute teacher Carol Wright (Wright)
from the eligibility list because
of
her activities in support
of
the Association. On February 9,
2EERA section 3543.S(a) makes it unlawful for a school district to "[i]mpose
...
reprisals on ... [or] ... discriminate ... against employees ... because of their exercise
of
rights
guaranteed by this chapter." Section 3543.S(b) makes it unlawful for a school district to
"[ d]eny to employee organizations rights guaranteed to them by this chapter."
2

2002, the Office of the General Counsel issued a complaint alleging that the District violated
EERA section 3543.5(a) and (b) by this conduct. In its answer to the complaint, the District
denied any wrongdoing.
An informal settlement conference for both cases was held on May 15, 2002, at PERB's
Los Angeles regional office, but the matter was not resolved.
A formal hearing on both cases was held on August 8 and August 9, September 9
and 13, 2002, in San Bernardino before an ALJ. After the filing of post-hearing briefs, the
matter was submitted for proposed decision on November 27, 2002.
FINDINGS OF FACT
The District is a public school employer as defined in EERA section 3540.1 (k). 	The
Association is an employee organization as defined in Section 3540.1 (d). 	Since December 6,
2001, the Association has been the exclusive representative, as defined in Section 3540.1 (e), of
an appropriate unit of the District's substitute teachers.
The District operates approximately 60 elementary, middle and high schools. 	It has
approximately 590 substitute teachers on its Substitute Placement Information Network (SPIN)
system 3, of which approximately 230 are employed each school day. The District's substitute
teachers are considered "at-will" employees who may be separated from employment at any
time at the pleasure of the District. Despite their "at-will" status, at the end of each school year
the District sends eligible substitutes a "reasonable assurance" letter regarding their
employment prospects for the next school year.
3SPIN is an automated system which telephones substitutes each school-day morning to
offer them teaching assignments. 	Substitutes are selected in random order, unless they are
name-requested by an individual school. Substitutes may also solicit their own assignments
directly with a school, but the school must enter its request into the SPIN system. SPIN is
operated through the Human Resources Department.
3

Hannah Ward (Ward), the District's director
of
certificated personnel, is responsible for
staffing the District with sufficient substitutes. Ward testified that "reasonable assurance"
letters are not sent
to
substitute teachers who have had numerous complaints filed against them
or who have been found guilty
of
serious misconduct, e.g., violence against a student. Ward
further testified that she has the authority to remove a substitute teacher from the SPIN system
during the school year for misconduct. Where the misconduct involves allegations
of
physical
force against students, Ward testified that she will immediately remove the teacher from the
classroom pending a determination as to whether the use
of
force was reasonable and justified.
Harold Vollkommer (Vollkommer), the District's assistant superintendent
of
Human
Resources for the past 2
1/2
years, is Ward's direct supervisor. Vollkommer has general
oversight responsibility for the procurement
of
substitute teachers. Vollkommer testified that
he is generally not involved in the specific removal
of
a substitute teacher from the SPIN
system. According to Vollkommer' s testimony, there are District policies regarding teacher
behavior, as well as guidelines for taking action against teachers, which include the
following: 	When a school principal submits a "do not use" request on a substitute teacher,
Human Resources may remove the teacher from SPIN for that school only, without further
investigation. When a complaint is initiated by someone other than a school principal, Ward
should review the pertinent data, which usually requires that she meet with the accused teacher
and make a determination asto the teacher's fitness for duty.	
If
Ward's decision is to take
adverse action, the teacher is always notified.
SPIN operator Robyn Davila (Davila), who is supervised by Ward, described
essentially the same procedure:
If
the alleged misconduct is minor, such as tardiness, Davila
will temporarily remove the teacher from SPIN for that school only, pending investigation of
4

the incident. If the complaint involves serious misconduct, Davila will contact Ward, who will
decide whether to remove the teacher completely from SPIN. Ward may also completely
remove a teacher against whom four or more "do not use" requests have been lodged. 	In any
case, Ward will ask Davila to immediately prepare a letter informing the teacher of the action.
Davila testified that her office receives five to six complaints about substitute teachers
per week. However, a Human Resources memo dated June 12, 2001, shows that only 13
substitutes did not receive "reasonable assurance" letters for the coming school year and were
removed from SPIN. The memo indicates that four of the 13 were teaching in other school
districts, three substitutes were on nine or more "do not use" lists, and one substitute had
allegedly "repeatedly" accepted job assignments but did not show up for them. Davila testified
regarding allegations against the other five as follows: 	two had struck children, one of whom
was a preschooler; one spoke at school sites of her former life as a prostitute; one had
numerous no-shows; and one had numerous incidents of inappropriate language and a "bad
attitude" toward staff. The memo also shows that five substitutes were on four or more "do not
use" lists; however, Davila testified that they were considered "borderline" and were not
removed from SPIN and had apparently received "reasonable assurance" letters. However,
Davila could not recall any of their alleged misconduct, except that one had cursed at students.
The Union Campaign
Prior to December 2001, the District's substitute teachers were unrepresented. 	On
May 31, 2000, Association President, Donald Hall (Hall) phoned Ward to advise her that a new
union named the San Bernardino Association of Substitute Teachers would be organizing
substitutes at all school sites, and reiterated this by letter of July 18, 2000. By letter to Hall
dated July 26, 2000, Ward said she was forwarding his July 18 letter to Joe Woodford
5

(Woodford), assistant to the superintendent
of
employee relations and the district's
chief
negotiator.4 By memo
of
October 12, 2000, Woodford informed the District's school
principals
of
the campaign and cited guidelines for dealing with organizers.
	In
November
2000, Hall distributed a memo addressed to all District principals, teachers, and staff, with a
copy to Vollkommer, asking for their help in the campaign.
Over the next year, Hall sent numerous requests to Ward for the names
of
substitute
teachers and other information, specifically noting that it was for the purpose
of
recruiting
members. Ward provided this information. Other campaign activities included having
substitute teachers and other Association supporters speak at District board meetings,5 giving
interviews to local newspapers, and mailing union literature. In addition, supporters
distributed union flyers, posted them on bulletin boards, and solicited authorization card
signatures at all school campuses as well as at District headquarters. 6 On July 12, 2001,
having collected over 400 signed authorization cards, the Association filed an election petition
with PERB. By memo
of
July 18, 2001, to "all site managers," Vollkommer announced the
filing
of
the petition, instructed the posting
of
election notices, and again cited guidelines for
dealing with union organizers. The mail-ballot election was held between October 29 and
4Ward denied at the hearing that her letter was in response to Hall's letter, which she
said she did not recall.
5Two substitute teachers spoke at the October 17, 2000, board meeting: Johnson and
Howard Carmean, the Association's most active supporter. Four substitutes, all Association
supporters, spoke at the January 16, 2001, meeting: Howard Carmean (Carmean), Wright,
Philip Katich (Katich) and Sylvia Cichocki (Cichocki). Carmean and Katich did not receive
"reasonable assurance" letters; thus, Cichocki was the only pro-union speaker whose SPIN
status was intact at the beginning of the 2000-2001 school year. However, the complaint does
not allege that Carmean or Katich were also victims of unlawful discrimination.
6Organizing at District headquarters was done once a month, on the 19t\ when
substitutes tum in their timesheets there.
6

the
	11
	2001;	November 	and ballots were counted on November 20, 	Association won the
teachers onelection and was certified as the exclusive representative
of
the District's substitute
December
6,
2001.
Pat Johnson
District's 	and	Johnson 	the 	secondary	had been a substitute teacher in 	elementary
work recordschools from 1991 until 1992 or 1993, and then since 1999, with an unblemished
prior to the events at issue herein. She was a principal Association supporter and campaigner.
September 2001, she passed out flyers, solicited authorization	From September 2000 until
schools where she was assigned, ascards, and spoke about the Association to colleagues at the
authorizationwell as at District headquarters.7 She obtained signatures on approximately
55
phone	any other union campaigner. In addition, her name and 	numbercards, more than almost
other Districtwere written on campaign materials distributed to teachers, principals, and
of
the wages and working conditions
of
District substitutes atemployees. She spoke critically
a District board meeting in October 2000, and in local newspaper interviews published in
September 2000 and August 2001.
at San Bernardino High
On May 14, 2001,8 an incident involving Johnson occurred
classes, she noticed a female student (referred to herein asSchool (SBHS). 	During one
of
her
filling out pink office passes and handing them to two classmates. When JohnsonWW)
two girlfriends couldquestioned WW, she said a teacher gave her the passes so that she and
7Johnson did not know all of her fellow substitutes, nor most of the individuals
at the District office; therefore, she spoke to everyone who went in or out
of
theemployed
building, from 2 or 3 p.m. until the end of the workday at 5 p.m.
8All dates hereafter refer to the year 2001 unless otherwise specified.
7

attend a campus club. Johnson said she needed to verify this with the office, but in the
meantime she considered the passes contraband and would confiscate them. Johnson reached
for the passes in WW's hand, but WW pulled her hand away and said "no way"; Johnson then
blocked the door and called security. Two campus officers arrived and spoke to the
participants; the officers' written report states that WW was "completely out
of
hand and very
disrespectful" and that the three girls were repeatedly cursing at Johnson, "getting directly in
her face." The report states that the girls initially complained about Johnson picking on them,
but did not accuse Johnson
of
touching them. Subsequently, one officer found a makeshift
marijuana pipe with traces
of
the substance in it. It was not until WW became aware that the
officer had found the pipe that she accused Johnson
of
assaulting her by grabbing, yanking,
and scratching her arm. At the end
of
the school day, Johnson spoke with Bill McCluskey
(McCluskey), the Vice-Principal
of
SBHS, about the incident. McCluskey said he had checked
WW's arm, which had no marks on it, spoke to the girls, and suspended all three
of
them for
misconduct. According to Johnson's testimony, McCluskey said everything was "taken care
of. ,,9
However, on that same day, unknown to Johnson, WW and her mother filed a
complaint with the District's Affirmative Action Office, claiming that Johnson had yelled at
the girls for no reason, tried to take WW's notebook, grabbed WW's arm and dug her nails
into it. The complaint notes that McCluskey did not believe WW, but instead took Johnson's
side against WW. Upon receiving the complaint, Assistant Affirmative Action Officer,
Lucia Negrete (Negrete) telephoned McCluskey, who told her he had suspended WW and was
in the process of investigating the incident. At the hearing, a copy of a May 17 email from
McCluskey was not called as a witness at the hearing.
8

McCluskey's secretary, Debra Walters (Walters), to SPIN operator Davila was produced. The
email requested that Johnson not be assigned to SBHS pending the investigation. However,
Davila testified that she does not know Walters and does not recall receiving the memo. 	Other
than the May
17
memo, there is no evidence that any adverse action was taken against Johnson
at this time, and she continued to receive SPIN assignments for the rest
of
the 2000-2001
school year. Over the next few days, McCluskey took the statements
of
three students: one
student knew only that there was an argument between Johnson and WW; the two other
students were the friends
of
WW involved in the incident, who both claimed that Johnson
grabbed WW's arm and scratched it. McCluskey forwarded these statements and the security
officers' report to Negrete.
Some time in May, Johnson received a "reasonable assurance" letter from Ward for the
2001-2002 school year. 	The exact date on which the letter was sent is unclear from the record.
Thus, it is possible the letter was sent prior to the May 14 incident.
On June 29, six weeks after the May 14 incident, the filing
of
WW's complaint, and
the receipt
of
the reports from McCluskey, Negrete telephoned Johnson for the first time, to
inform her
of
the complaint and to get her version
of
the incident. 10
According to Negrete's
notes taken immediately after the conversation, Johnson said the class was "disruptive and out
of
control" and she felt intimidated by WW, whom she described as a "big girl." Johnson
denied having grabbed or scratched WW's arm.
Eleven days later, on July 10, Negrete interviewed five student witnesses to the
incident, chosen at random. Witness statements written contemporaneously by Negrete
10When asked at the hearing why it took over six weeks to begin her investigation,
Negrete said it was because of her "caseload."
9

indicate that three students claimed Johnson had been rude to the class and had grabbed or
pulled
WW's
arm; only one student said Johnson scratched WW. All five students said that
WW and her friends cursed at Johnson.
After she completed her investigation, Negrete concluded that Johnson's eligibility to
serve as a substitute teacher should be restricted. Negrete reached this conclusion despite the
fact that the written reports
of
McCluskey and the security officers supported Johnson's
version
of
events. Negrete claimed that her decision was based on Johnson's "unprofessional
conduct," on her "loss
of
control"
of
the class, and on her "intimidation" by the students.
By memo dated July
12
to McCluskey, with copies to Ward and SBHS Principal Darryl
Adams, Negrete reported that, "although there were conflicting versions
of
the altercation," it
was determined that Johnson "had in fact put her hands on [WW]." Further, Negrete reported
(erroneously) that all five students accused Johnson
of
being rude to the class. In conclusion,
Negrete recommended that Johnson "not be utilized as a substitute teacher in the Senior High
School educational setting." Negrete did not inform Johnson
of
her recommendation; instead,
by letter
of
July 16, she told Johnson that "[t]he complaint filed against you by [WW] has been
closed."
11
Negrete also told WW by letter that the investigation was completed, that although
there were conflicting versions
of
the incident, "it was determined that Johnson had reacted in
an unprofessional manner," and that "corrective action has been taken" by SBHS.
Since November 2000, when Negrete first came to the District, only three other
complaints had been filed against substitute teachers. Negrete investigated these complaints
11
Negrete testified that she did not believe this statement was misleading, as
Affirmative Action's involvement with the incident was completed. Negrete contended that,
although it was her practice to inform teachers whenever she recommended adverse action, in
this case she believed if Human Resources were to take any action against Johnson, it would be
their responsibility to inform her.

and found only one, alleging "inappropriate behavior," to have merit; that teacher received a
warning but was not removed from SPIN. 	Johnson is the only substitute whom Negrete
recommended to be removed from eligibility.
Based on Negrete's July 12 memo, Ward instructed Davila to remove Johnson
completely from the SPIN system. Ward testified that her decision to remove Johnson from
the SPIN system was because there was an undetermined amount
of
force used
by
Johnson.
Ward felt that her responsibility for student safety required her to remove Johnson from the
classroom until Ward could determine whether the force was reasonable and justified. Ward
did not notify Johnson
of
her decision; she testified that she believed this was Negrete's
responsibility, as the complaint had been filed with Affirmative Action, notwithstanding that
Ward knew the complaint had already been closed.
As a result
of
Johnson's removal from SPIN, she was not offered any assignments at
the beginning
of
the 2001-2002 school year. On October 11, while at District headquarters
renewing her credentials, she asked Davila why she had gotten no calls.
12
According to
Johnson, Davila told her there was a letter taking her
off
SPIN, but refused to let her
see
the
letter. 	Davila did not deny telling this to Johnson, but when asked at trial whether
Ward
asked
her to send Johnson a letter, or whether she sent one at all, or when, her testimony
wavered
back and forth; she offered a variety
of
excuses for her loss
of
memory on this issue.
After speaking with Davila, Johnson then met with Ward, who told her that Affirmative
Action had made the decision to remove her from SPIN, although Ward did not reveal that
Negrete's recommendation only concerned high schools. Ward told Johnson that she herself
12Substitute teachers do not receive District assignments during the summer break.
Thus, Johnson had no knowledge of adverse action until the new school year began.
11

did not have all the information and was not clear on what had happened, therefore Johnson
should speak with Negrete. At some time after that conversation, Ward phoned Negrete and
asked for more details about the May 14 incident. According to Negrete's notes, Ward told
Negrete that teachers may legally use reasonable force to take passes from a student and that
there must be justification for completely removing a substitute from SPIN. Further,
Ward
opined to Negrete that Ward did not believe there was any reason to prohibit Johnson from
teaching at schools other than SBHS. Negrete informed Ward that she would reexamine the
case and call Ward back.
On October 17, Johnson met for the first time in person with Negrete, who told
her
that
it was Ward who made the decision to remove her from SPIN. After Johnson presented
her
defense, Negrete said she would recommend to Ward that Johnson be precluded only from
high school assignments.
By memo to Ward dated October 22, Negrete said she saw no reason why Johnson
could not be assigned to elementary and middle schools, however, Johnson should not
be
sent
to high schools because she was "intimidated by the size
of
the students and the lack
of
classroom management."
13
Based on Negrete's recommendation, Ward notified Johnson by
letter
of
October 22 that she had been removed from SPIN for high schools, but could serve as
a substitute in elementary and middle schools.
On October 26, Ward, after speaking again with Negrete, decided she would allow
Johnson to serve at any high school which requested her by name, except SBHS where she
13
It is undisputed that Johnson's only reference to size was that WW was a "big girl."
When asked at the hearing why she used the plural "students" in her memo to Ward, Negrete
said this was based on her interviews with Johnson and the five student witnesses, and on the
"climate in the classroom." However, she could not describe that climate with any specificity.
12

could not serve at all, and so notified Johnson. It is undisputed that
by
this time, Ward
knew
Johnson had not used unreasonable force or broken any law in the
May
14 incident. Yet, when
asked at the hearing why she was still restricting Johnson's eligibility, Ward said it was a
combination
of
Johnson's use
of
"undetermined force" and her "intimidation"
by
the students.
Ward testified that she knew
of
no other substitute being removed from SPIN because
of
her
perception
of
a classroom.
Vollkommer testified candidly and with clear memory on all issues except for those
specifically relating to Johnson. Thus, although he acknowledged speaking with Ward about
Johnson's situation, he could not recall whether it was between July (when she was completely
removed from SPIN) and October (when she was removed from only high schools except
by
name request), or only after October. Further, when asked whether he and Ward had discussed
the legal implications to the District ofremoving Johnson from SPIN and whether he
had
cautioned Ward in this regard, Vollkommer appeared unsettled, took a long pause, and
answered that he did not recall. 14
Carol Wright
Wright has been employed by the District as a substitute teacher for approximately 20
years, primarily in special education.
15
She joined the Association in October 2000,
and
became active in its organizing campaign. 	She attended union meetings at restaurants and
colleagues' homes, participated in phone-banking, and solicited authorization card signatures
at the various schools to which she was assigned. She also spoke at a school board meeting on
14The ALJ found Vollkommer's demeanor in this regard suspicious. The Board finds
no grounds to dispute this finding.
15
"Special education" refers to the teaching of physically, mentally and psychologically
impaired students.
13

January 16, 2001, along with nine other substitute teachers. Wright spoke about wages and
working conditions, and said that there was "need for a union," although she did not mention
the Association by name.
On October 16, 2001, Wright was sent for the first time to Lytle Creek Elementary
School, where she was assigned to a pre-school classroom. According to Wright, she was
showing a tambourine to the class. To demonstrate its sound, she shook it, then asked a young
boy to hold out his elbow or knee, which, according to Wright, she "gently tapped" with the
tambourine. Wright was not aware
of
any problem with the class, and no one from the school
spoke to her about any problem with it.
However, Guillermina Jackson (Jackson), Lytle Creek's principal, testified that the two
aides in Wright's classroom complained about her behavior to Jackson's secretary, Chris Perez
(Perez), who in tum reported it to Jackson.
16
Jackson claimed she then spoke to one
of
the
aides, who stated that Wright had been "abrupt" with the class and had "tapped" two students
on the head with a few flat sheets
of
paper. The aide did not describe how forceful the tapping
had been, nor did she mention anything about a tambourine. Jackson did not receive
any
complaints from parents. Nevertheless, she instructed Perez to send a "do not use" email to
Jimmi Mitchell (Mitchell), District Coordinator
of
State Pre-School Programs. Jackson
testified that she told Perez to send the email on October 16, the day
of
the incident; yet, for
reasons unexplained except for Jackson's claim that Perez had a heavy workload, Perez did not
send the email until October 23, one week later. Jackson acknowledged that she did
not
know
whether Wright was reassigned to Lytle Creek between October 16 and October 23, and there
is no evidence that she made any effort to find out.
16Neither Perez nor the aides were called as witnesses at the hearing.
14

The email accused Wright
of
having a cold tone
of
voice, being abrupt with the
children, and hitting them with "objects such as paper," as well as with a tambourine, to get
their attention. This was the first written complaint Mitche11
17
had received regarding a
substitute teacher, and she received only one other shortly before the instant hearing. After
receiving Perez' email, Mitchell spoke with Jackson, who confirmed that she did not want
Wright at her school. Mitchell testified that she also spoke with the two classroom aides, who
claimed Wright was harsh with the children, and they were afraid
of
her and did not respond
well to her. According to Mitchell, the aides reported that Wright threw paper at the students
and hit one with a tambourine. However, Mitchell did not speak with Wright, as she
"did
not
feel the need to." Mitchell then sent an email to Davila on October23 stating that she had
received "numerous complaints" about Wright, and requesting that Wright be removed from
the SPIN list for child development. In this regard, Mitchell testified that, a few months before
the Lytle Creek incident, "several" parents
18
at other schools had phoned her to complain that
their children were afraid to go to school because Wright was loud and harsh, and that a
classroom aide and unidentified administrator(s) had complained to her about Wright's
harshness. Mitchell did not provide any details about these complaints, nor did she document
any
of
them, nor was Wright ever notified
of
them, nor did the District take any action against
Wright based on them. Mitchell contended at trial that it is her practice not to document or
discipline teachers for just a few complaints, and it was only after the October 16 incident that
she decided enough complaints had been lodged against Wright to justify requesting
her
SPIN
17
Mitchell is responsible for staffing nine pre-school classrooms for children ages 3
to 5, and six child-development classrooms for children under 3.
18Upon further examination at hearing, Mitchell reduced the number of complaining
parents from "several" to "maybe two or three."
15

removal. However, Mitchell also testified that Wright was the first substitute she had ever
received complaints about, plus one other a few days before the hearing. Mitchell did not
notify Wright of her request.
Ward claimed that, after learning of Mitchell's email to Davila, she spoke with both
Mitchell and Jackson about the Wright incident. However, Mitchell denied that she spoke with
anyone from the District after she sent her email. Based on the fact that the ALJ had
previously found portions of Ward's testimony not credible, the ALJ credited Mitchell's
testimony over Ward's on the issue of whether Mitchell and Ward spoke about Wright.
Further, Ward did not explain at hearing what Jackson had said about the Wright
incident, nor did Ward claim that she reiied on Jackson in any way in making her decision
about Wright. To the contrary, Ward stated, more than once, that her decision was based on
Mitchell's email. Accordingly, the ALJ concluded that Ward had no conversation with
Jackson. 	Thus, Ward, relying on Mitchell's email allegation that there were "numerous"
complaints about Wright, decided to take Wright completely off the SPIN system. Ward
claims this was justified by Wright's having received a "do not use" request from one school in
1997, and a written notice for late cancellation of an assignment in early 2001. 19
By letter of November 1, Ward informed Wright of her decision and asked for Wright's
response. In her response of November 8, Wright explained that she had only tapped a student
on the elbow to demonstrate how to use the tambourine, and denied hitting any student; she
also included several letters of praise and recommendation from various District teachers and
19In December, Ward printed out a copy of Wright's record, showing that she had five
"do not use" requests since 1995, and one "preferred" recommendation in 1994. However,
Ward was not aware of this record until after she restricted Wright's eligibility. Therefore, this
record of Wright's could not have played a part in Ward's actions.
16

management personnel, as well as her resume. Based on Wright's response, Ward decided to
reinstate Wright to SPIN by name request only, and so notified her by letter of November 15.
However, Wright did not obtain any name-request assignments. Wright claims that she
received four SPIN messages for name requests, but by the time she responded, the
assignments had been given to other teachers. 	In early December, Wright learned that she had
been name-requested to a child development class. She phoned Davila to find out if she could
take the assignment; Davila reported this to Ward, who phoned child-development coordinator
Anita Rae (Rae). 20 According to Ward, Rae told her that Wright could not serve; Ward said
she needed that in writing; and Rae then made a written request that Wrightbe taken off the
SPIN child development list. 	Ward complied with the request, but there is no evidence that
Wright was ever notified.
ISSUES
1. 	Did the District remove Johnson from the SPIN system because of her activities
on behalf of the Association, in violation ofEERA section 3543.S(a) and (b)?
2. 	Did the District remove Wright from the SPIN system because of her activities
on behalf of the Association, in violation ofEERA section 3543.S(a) and (b)?
DISCUSSION
To demonstrate a violation of EERA section 3543.S(a), the charging party must show
that: (1) the employees exercised rights under EERA; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
20Rae was not called as a witness at the hearing.
17

the employees because
of
the exercise
of
those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
EERA section 3543(a) guarantees to public school employees the right to "form, join,
and participate in the activities
of
employee organizations
of
their own choosing for the
purpose
of
representation on all matters
of
employer-employee relations." In the instant cases,
both Johnson and Wright exercised their protected rights
by
their activities in support
of
the
Association's organizing campaign, and the District imposed adverse action against them by
removing them from the SPIN system, thereby limiting their ability to receive substitute
teaching assignments. The issues yet to be decided, then, are whether the District had
knowledge
of
their Association activities, and whether it took action against them because
of
these activities.
Knowledge
of
Union Activities
The Novato standard requires that the employer have actual or imputed knowledge that
the employee engaged in protected conduct. (Moreland Elementary School District (1982)
PERB Decision No. 227 (Moreland).) Here, the District claims that Ward, the primary
decision-maker, had no personal knowledge
of
the protected activities
of
Johnson and Wright.
During the hearing, Ward denied all knowledge
of
the Association's campaign, the election
petition, and the mail ballot election; she even denied seeing the election notices which were
posted at all school sites. Ward proffered that, because the Association did not have a contract
with the District, it was not within her area
of
responsibility to take any action with regard to
them, thus she was not aware of their activities. She admitted knowing that Hall was seeking
information on substitute teachers, and that she provided the information, but she denied
18

knowing his purpose. At the hearing, when shown Hall's letter
of
July 18, 2000, informing her
of
the Association's intent to organize, Ward testified that she did not recall receiving the
letter, and would not even admit that her own letter
of
July 26 was in response. 	She also was
shown a letter addressed to her from Hall dated May 10, 2001, complaining about the removal
of
another substitute from SPIN and requesting an investigation. In response, Ward testified
that she did not recall receiving the letter and that no investigation was conducted. Ward also
did not recall seeing Woodford's or Vollkommer's memos regarding the campaign and the
petition. 	She denied attending District board meetings, seeing local newspaper articles or
campaign tables set up outside the District's headquarters, where her own office is located, or
having any knowledge
of
Johnson's or Wright's involvement.
In contrast to Ward's professed lack
of
knowledge, both Ward's supervisor and at least
one
of
her subordinates
21
admitted they were aware
of
the Association's campaign.
Vollkommer, Ward's supervisor, acknowledged that he and his staff were generally aware
of
the Association's campaign, perhaps as early as July 2000. Further, he testified that the
campaign received "a lot
of
attention" from himself and Ward, as they frequently discussed
Hall's numerous information requests to Ward. Vollkommer recalled seeing local newspaper
articles regarding the campaign, and attended District board meetings during the period.
However, although he recalled Hall and Howard Carmean speaking at those meetings in
support
of
the Association and campaigning at District headquarters, he did not recall Johnson
or Wright ever speaking, and he denied knowing anything about their involvement in the
There is evidence in the record that Jackie Pullen (Pullen), a Human Resources
employee under Ward's supervision, was aware of the Association campaign. The record also
reveals that during the campaign Pullen made negative remarks about teachers having to pay
union dues.
19

campaign or with the union. Both Vollkommer and Woodford also sent memos to principals
and other administrators regarding the campaign and the election. Hall announced the
campaign early on by memo to Ward in July 2000, and by letter to principals, teachers and
staff in November 2000; and during the campaign, he sent numerous information requests to
Ward, stating in many
of
them that it was for recruitment.
Further, the ALJ found that the Association's campaign was widespread and highly
visible. The Association distributed and posted flyers throughout the District, including at the
District's headquarters. The Association's campaign was also the focus
of
several local
newspaper articles,
of
speeches made at District board meetings, and in election notices posted
at all school sites.
As for Johnson, her campaign activities were extensive, prolonged, and also highly
visible. She appeared in local newspaper articles, passed out flyers - many containing her
name and phone number - at several school sites and at District headquarters, solicited the
Association's support from substitutes as well as from the many others to whom she spoke,
gathered over 50 authorization cards, and spoke at school board meetings.
Wright did not have Johnson's degree
of
visibility in the campaign. However, she was
one
of
the early activists, solicited authorization cards at various school sites, and spoke
of
the
need for a union at the District's January 16 board meeting. In addition, she attended the
Association's meetings and participated in its phone banks.
Given the evidence cited above, the ALJ did not credit Ward's denials about having no
knowledge of Johnson's and Wright's protected activities. To the contrary, the ALJ found that
it strained credulity that someone in Ward's position could have ignored the Association's
campaign and Johnson's and Wright's role in it. Based on the entirety of the evidence, the
20

ALJ concluded that Ward had full knowledge
of
the Association's campaign and
of
Johnson's
and Ward's support
of
the campaign. Having reviewed the entire record, the Board finds no
reason to disturb the ALJ's finding on this issue. Accordingly, the Board finds that the
Association has established the second prong
of
the Novato standard.
Nexus Between Union Activity and Adverse Action
Having established that Johnson and Wright participated in protected activities and that
the District had knowledge
of
such activities, the Association must now establish a connection,
or nexus, between that activity and the adverse action taken by the employer. (Novato; Regents
of
the University
of
California (1983) PERB Decision No. 319-H.) This may be done
by
circumstantial evidence since direct proof is seldom available. (Contra Costa Community
College District (2003) PERB Decision No. 1520.)
Circumstantial evidence
of
nexus includes the timing
of
the employer's adverse action
in close temporal proximity to the employee's protected conduct. (North Sacramento School
District (1982) PERB Decision No. 264 (North Sacramento). However, timing, without more,
does not demonstrate the necessary "nexus." (Moreland.) Facts establishing one or more
of
the following additional factors must also be present: (1) the employer's disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision
No. 459-S); (2) the employer's departure from established procedures and standards when
dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104); (3) the employer's inconsistent or contradictory justifications for its actions (State of
California (Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S); ( 4) the
employer's cursory investigation of the employee's misconduct; (5) the employer's failure to
offer the employee justification at the time it took action or the offering of exaggerated, vague,
21

or ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572); or (7) any other facts which
might demonstrate the employer's unlawful motive (Novato; North Sacramento).
1. 	Johnson
With respect to Johnson, the ALJ found multiple factors evincing the District's
unlawful motive. First, the District did not remove Johnson from the SPIN system until the
Association filed its election petition. Specifically, although Johnson's altercation with WW
and the filing of WW's complaint took place on May 14, Johnson was not removed from SPIN
until July 12, two months later, on the same day the Association filed its election petition. On
that day, Negrete sent her memo to McCluskey recommending Johnson's partial removal from
SPIN, and on that same day or within days thereafter, Ward took her off SPIN completely.
This precluded Johnson from receiving any assignments until October 22, when Ward
reinstated her for elementary and middle schools, and October 26, when Ward reinstated her
for high school name requests.
The ALJ also found evidence of the District's departure from established procedures
and standards. District witnesses concurred that the District's long-established practice was to
notify a teacher, including a substitute teacher, whenever she was to be removed, in part or in
whole, from the SPIN system. However, Johnson was not notified of her removal from SPIN
until she herself inquired on October 11, after not receiving any assignment calls since the start
of the new school year. Indeed, Johnson had no reason to believe that she had been removed
from the SPIN system since Negrete had informed her that the affirmative action complaint
was "closed." Both Negrete and Ward testified that they believed it was the other's
responsibility to notify Johnson; however neither of them determined whether Johnson had in
22

fact been notified, and neither
of
them acknowledged, even at hearing, that any notice should
have been given.
Next, the ALJ found evidence
of
inconsistent and contradictory justifications by
District witnesses. In July, Negrete notified WW that the investigation into her complaint had
been completed and that it had been determined that Johnson had acted in an unprofessional
manner towards WW. Negrete further stated that corrective action had been taken
by
SBHS.
At the same time, Negrete notified Johnson that the complaint was closed and gave no
indication that there had been a finding that Johnson had acted unprofessionally or that
corrective action would be forthcoming. Further, in her initial recommendation to remove
Johnson from serving as a substitute at SBHS, Negrete cited her finding that Johnson
had
used
an undetermined amount
of
force on WW. In October, Negrete reiterated the same
recommendation to Ward, but stated that it was because Johnson was intimidated by the size
of
high school students. At hearing, Ward offered no clear rationale for her October decision to
continue restricting Johnson from teaching at high schools, but rather waffled back and forth
between the "undetermined force" and Negrete's October recommendation.
Based on the above factors, the ALJ found that the Association had established a nexus
between Johnson's protected activity and her removal from SPIN in July and her restriction
from teaching at high schools implemented in October. Thus, the ALJ found that the
Association had established a prima facie case
of
retaliation by the District. After reviewing
the entire record, the Board finds no reason to disturb this finding.
2. 	Wright
With respect to Wright, the ALJ also found multiple factors evincing the District's
unlawful motive. First, like Johnson, Wright was also removed from SPIN just a few days
23

before the start
of
the election. Thus, the District's timing is suspect. (North Sacramento.)
Further, the ALJ found inconsistencies and contradictions among the various District
witnesses. For example, in Mitchell's email to Davila, she accused Wright
of
receiving
"numerous complaints." However, except for the October 16 incident, Wright was never
notified
of
any other complaint. At hearing, Mitchell testified that she had previously received
two or three complaints from parents about Wright. These complaints apparently were not
serious enough for Mitchell to document or investigate. Yet, at the same time, the complaints
were apparently serious enough to serve as a partial basis for Wright's removal from SPIN.
Finally, at the Human Resources level, Ward spoke with no one, and took Wright
completely
off
the SPIN list although Mitchell had recommended Wright's removal only from
child development. 	Ward's proffered justification was that Wright had a record
of
misconduct.
However, Ward did not access Wright's full record until December. Thus, Ward was not
aware
of
the previous parental complaints when she made the decision to remove Wright from
SPIN in November.
Based on the above factors, the ALJ found that the Association had established a nexus
between Wright's protected activity and her removal from SPIN in November. Thus, the ALJ
found that the Association had established a prima facie case
of
retaliation by the District.
After reviewing the entire record, the Board agrees that the Association has established a prima
facie case. However, the Board notes that, unlike Johnson, Wright received prompt notice
of
her removal from SPIN which allowed her to promptly respond. As such, the prima facie case
established by Wright is weaker than that of Johnson.
24

District's Affirmative Defense
Once the charging party has established its prima facie case, the burden then shifts to
the employer
to
show that it would have taken the adverse action even in the absence
of
the
employee's protected activity. (Novato; Wright Line, Inc. (1980) 251 NLRB 1083 (105
LRRM 1169].) The District asserts that it would have removed Johnson and Wright from
SPIN even in the absence
of
any protected activity. 	In the proposed decision, the ALJ rejects
the District's defense, finding that the District failed to meet its burden
of
proof. As discussed
below, the Board rejects the ALJ's conclusions on this issue.
1.
	Johnson
The District argues that Johnson's initial removal from SPfN was justified because
of
Negrete's finding that Johnson had used an undetermined amount
of
force with WW. 	In
considering this argument, it is important to note that there is no evidence that WW,
or
any
of
the students who supported WW's allegations against Johnson, had knowledge
of
Johnson's
protected activities or harbored any anti-union animus. Similarly, the Board does not believe
there is sufficient evidence
to
find that Negrete had any knowledge
of
Johnson's protected
activities or harbored any anti-union animus.22
In addition, it is also important to note that whether Negrete's finding constitutes "just
cause" for discipline is not at issue since Johnson was an at-will employee. Similarly, the
accuracy or thoroughness ofNegrete's investigation is not at issue. 	(See e.g., Moreland, p.
15
["Disciplinary action may be without just cause where it is based on any
of
a host
of
improper
22In the proposed decision, that ALJ discredited Negrete's testimony that she had no
knowledge of Johnson's protected activities. The ALJ apparently imputed Ward's knowledge
of such activities to all the District's employees, including Negrete. The Board does not
believe that imputing knowledge to such a broad spectrum of employees is warranted.
25

or unlawful considerations which bear no relation to matters contemplated by EERA and which
this Board is therefore without power to remedy."].) Thus, the mere fact that the ALJ found
deficiencies with Negrete's investigation does not mean that Negrete must have been
motivated by anti-union animus. This is especially true in this case since there is no evidence
that Negrete had knowledge
of
Johnson's protected activities.
Since there is no evidence that Negrete was motivated by anti-union animus, the issue
before the Board is not the legitimacy
of
Negrete's investigation, but Ward's actions in
response
to
it. The evidence establishes that Ward received Negrete's July
12
memo which
recommended that Johnson be prohibited only from teaching at the high school level. 	Ward
did not immediately follow Negrete's recommendation, but instead completely removed
Johnson from the SPIN system. Ward testified that she did so because ofNegrete's finding
that Johnson had used an undetermined amount
of
force. 	Ward testified that when allegations
of
unnecessary or excessive force are levied against a substitute, it is her policy to completely
remove the substitute from SPIN until an investigation can be completed. Given the District's
responsibility for the safety
of
its students, the Board not only finds such a policy reasonable,
but prudent. Accordingly, the Board finds that the District has established that Johnson would
have been completely removed from SPIN immediately after Ward received the July 12 memo
even in the absence
of
any protected activity.
Subsequently, Ward contacted Negrete to obtain further information regarding the
finding
of
"undetermined" force. 	It is worth noting that according to Negrete's notes
of
her
conversation with Ward, Ward cautioned Negrete that teachers are only prohibited from using
unreasonable or unnecessary force. Negrete then agreed to reexamine Johnson's case. 	After
26

her review, Negrete reiterated her recommendation that Johnson not teach at the high school
level. Ward subsequently accepted this recommendation.
While the ALJ faulted Ward for not conducting her own investigation into the May 14
incident, there is no evidence in the record that Ward had such a responsibility given that
Negrete had already investigated the matter. Moreover, there is nothing in the record to
suggest that Ward knew, or should have known,
of
any deficiencies in Negrete's investigation.
In the end, Ward merely followed the recommendation
of
the District's trained investigator
who recommended that Johnson not teach at the high school level. Given the seriousness
of
the allegations and the District's potential liability in the matter, Ward's actions are
understandable. The Board is satisfied that the District has established that Ward would have
followed Negrete's recommendation even absent Johnson's protected activities. Accordingly,
the charge and complaint against the District with respect to Johnson must be dismissed.
2.	
Wright
The District also argues that Wright would have been removed from SPIN even absent
her protected activities. As with Johnson, Wright was removed after allegations
of
improper
behavior. According to Jackson, two teachers' aides complained that Wright was abrupt with a
class
of
pre-schoolers and would hit them with objects, such as paper, to get their attention. It
is important to note that there is no evidence that the two teachers' aides had knowledge
of
Wright's protected activities or harbored any anti-union animus. Because there is no evidence
that the teachers' aides were motivated by anti-union animus, the issue before the Board is not
the legitimacy
of
the allegations against Wright, but Ward's actions in response to it.
As already discussed, as a result of the complaint Jackson initiated a request to have
Wright removed from the SPIN system for child development. The request was eventually
27

received by Ward who testified that upon receiving Jackson's request, she completely removed
Wright from the SPIN system pending an investigation. Ward's actions were consistent with
her testimony that when allegations
of
unnecessary or excessive force are levied against a
substitute, it is her policy to completely remove the substitute from SPIN until an investigation
can be completed. Ward testified that she followed this policy in Wright's case since Wright
was accused
of
hitting students with objects. Given the District's responsibility for the safety
of
its students, the Board not only finds such a policy reasonable, but prudent. This is even
more true when dealing with pre-schoolers, who are perhaps more vulnerable than older
students. 	Accordingly, the Board finds that the District has established that Wright would have
been compieteiy removed from the SPIN system immediately after the complaint by the
teachers' aides even in the absence
of
any protected activity.
Subsequently, Ward informed Wright
of
her removal from SPIN and provided
her
an
opportunity to respond to the complaint. Wright responded by denying the allegation that she
"hit" her students. After reviewing Wright's response, Ward reinstated Wright to the SPIN
system on a "request only" basis.
As discussed above, it is important to note that it is not the Board's duty to determine
whether "just cause" existed for the action taken against Wright. It is similarly not the Board's
duty to determine whether Ward's investigation
of
the complaint against Wright was fair. 	The
issue before the Board is whether Ward would have placed Wright on "request only" status
absent any protected activity. Here, two teachers' aides complained
of
Wright's abrupt
behavior with children and, most seriously, accused her of hitting the students to get their
attention. 	In her response, Wright admits that she "gently tapped" one student but argues that
her action was "grossly misinterpreted" as hitting.
28

After considering all the evidence, the Board finds that the District has met its burden
to establish that Ward would have placed Wright on "request only" status even absent any
protected activity. 	Here, Wright admitted
to
"tapping" one
of
the students. 	Since Wright was
an
at-will employee, Ward was not required to hold an evidentiary hearing to determine
whether Wright's "tapping"
of
the student was cause for discipline. Ward had every right to
take the action she did based on nothing more than her belief that Wright should not have been
"tapping" students in the first place. As the Board has recently held, a school district is
entitled to set a higher standard for its at-will employees. (Bellevue Union Elementary School
District (2003) PERB Decision No. 1561.) Accordingly, the charge and complaint against the
District with respect to Wright must be dismissed.
ORDER
The unfair practice charges and complaints in Case Nos. LA-CE-4345-E and
LA-CE-4350-E are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Member Whitehead joined in this Decision.
Member Neima's concurrence and dissent begins on p. 30.
29

NEIMA, Member, concurring and dissenting: I concur with the majority's findings
of
fact and its conclusion that the San Bernardino Association
of
Substitute Teachers
(Association) established a prima facie case
of
unlawful discrimination. However, I must
dissent from the majority's finding that the San Bernardino City Unified School District
(District) established its affirmative defense that it would have dismissed both teachers even
absent any protected activity. 	I find evidence in the record that the District failed to follow its
own procedures for investigating charges
of
misconduct against substitute teachers. Given that
the District failed to follow its own procedures, I would not find that the District established its
affirmative defense. Accordingly, I would affirm the administrative law judge's proposed
decision finding that the District violated the Educational Employment Relations Act
by
discriminating against the two teachers for protected activity.
30