Klamath-Trinity Joint Unified School District (PERB 1778E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 347,
Charging Party,
v.
KLAMATH-TRINITY JOINT UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. SF-CE-2397-E
PERB Decision No. 	1778
O c t o b e r 	6, 	2005
Appearances: 	California School Employees Association by Madalyn J. Frazzini, Attorney, for
California School Employees Association & its Chapter 347; Kronick, Moskovitz, Tiedemann
& Girard by Roman J. Munoz, Attorney, for Klamath-Trinity Joint Unified School District.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
SHEK, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the California School Employees Association & its Chapter 347
(CSEA) of a Board agent's dismissal (attached) of its unfair practice charge. 	The charge
alleges that the Klamath-Trinity Joint Unified School District (District) violated the
Educational Employment Relations Act (EERA)1 by discriminating against the Chapter
President, Terry Tyner (Tyner), when it eliminated her position, unilaterally transferring duties
from one job classification to other classifications, and failing or refusing to provide requested
information.
EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

The Board has reviewed the entire record in this matter, including the original and
amended charge, the District's response, the warning and dismissal letters, CSEA's appeal and
the District's opposition to the appeal. The Board finds the warning and dismissal letters to be
free of prejudicial error and adopts them as the decision of the Board itself, subject to the
discussion below.
DISCUSSION
The unfair practice charge filed by CSEA alleges that the District unlawfully
discriminated against Tyner for engaging in protected activities when it eliminated the
Associated Student Body/Educational Data Analyst (ASB/EDA) position and transferred duties
from the eliminated position to other classifications.
It is undisputed that for purposes of establishing a prima facie case, CSEA has
demonstrated that Tyner participated in protected activities by serving as the chapter president,
participating on the bargaining committee and assisting in resolving grievances as the job
steward. 	CSEA represented Tyner in matters involving her own working conditions. The
decision to eliminate the ASB/EDA position and to lay off Tyner was adverse to her interests.
The issue before the Board is whether CSEA has established the required nexus.
Contrary to CSEA's assertion that the District failed to justify the reason for
eliminating the ASB/EDA position, the District school board adopted a resolution on March 9,
2004, to abolish the classification due to a "lack of funds and/or lack of work," a phrase that
mirrors the layoff provisions of section 45308 of the Education Code, which provides, in part:
Classified employees shall be subject to layoff for lack of work or
lack of funds.
We concur with the findings of the Board agent that there is insufficient evidence to
show that the District departed from any established procedures and policies in eliminating the
22

ASB/EDA position. 	Thus, the charge does not provide sufficient evidence of the required
nexus and does not state a prima facie case of discrimination.
The unfair practice charge filed by CSEA next alleges that the District unilaterally
transferred the duties of the ASB/EDA position to other job classifications without providing
CSEA with notice and an opportunity to bargain.
PERB Regulation 32615(a)(5)2N requires, inter alia, that an unfair practice charge
include a "clear and concise statement of the facts and conduct alleged to constitute an unfair
practice." Thus, CSEA's burden includes alleging the "who, what, when, where and how" of
an unfair practice, 	(State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
CSEA alleges that the District transferred duties that were performed exclusively by the
ASB/EDA classification to other classifications, without providing CSEA notice and the
opportunity to meet and negotiate. In its amended charge, CSEA listed seven duties that had
been transferred from the ASB/EDA classification and were continually being performed by
other classifications. 	Since CSEA did not identify the classifications to which the duties had
been transferred, we cannot determine whether or not these other classifications are existing or
newly created classifications, within or outside of the existing bargaining unit. 	(See Rialto
Unified School District (1982) PERB Decision No. 209; Mount San Antonio Community
College District (1983) PERB Decision No. 334.) It is unclear from the record whether or not
these seven duties were previously performed exclusively by the ASB/EDA classification
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
33

employee in that they had never been performed by employees in the other classifications prior
to the creation of the ASB/EDA position. 	(See Eureka City School District (1985) PERB
Decision No. 481.) Neither did CSEA present any evidence to show that the transferred duties
were not overlapping between the ASB/EDA and the other classifications to which the
transfers were made; or that the duties were not even remotely encompassed in the job
description of these other classifications. 	(See Rio Hondo Community College District (1982)
PERB Decision No. 279; Desert Sands Unified School District (2001) PERB Decision
No. 1468.) In the absence of such relevant allegation or information, CSEA failed to establish
a prima facie case that the District had the obligation to meet and negotiate its decision to
transfer duties from the abolished ASB/EDA classification to other classifications.
The District was obligated to and indeed had participated in negotiations over the
effects of the decision to eliminate the ASB/EDA classification. 	Where an exclusive
representative "receives actual notice of the decision, the effects of which it believes to be
negotiable, the employer's 'failure to give formal notice is of no legal import.'" (Sylvan Union
Elementary School District (1992) PERB Decision No. 919, p. 11, citing Regents of the
University of California (1987) PERB Decision No. 640-H.)
The facts show that Tyner, as the chapter president, had at least two conversations with
Assistant Superintendent for Business Services, Laura Lee George, beginning November 2003,
in which she was alerted to the possible elimination of the ASB/EDA position and her
displacement rights. 	She received actual notice of the District's proposed decision to eliminate
the classification on February 26, 2004, before the District adopted the resolution on March 9,
2004, and implemented the decision to eliminate the ASB/EDA classification on July 1, 2004.
CSEA had ample time to request negotiations over the effects of the decision before the
44

implementation of the position elimination and layoff. 	In fact, CSEA alleges in its charge that
the parties are participating in negotiations over the effects of the decision to eliminate the
ASB/EDA classification. 	Accordingly, the charge has not stated sufficient facts to establish a
prima facie case of unlawful unilateral change in policy.
The unfair practice charge filed by CSEA finally alleges that the District failed or
refused to provide requested information when it refused to identify the specific purpose of the
March 12, 2004 interview.3
An exclusive representative is entitled to all information that is necessary and relevant
to the discharge of its duty of representation. 	(Stockton Unified School District (1980) PERB
Decision No. 143.) No violation will be found if the employer responds and the union does not
reassert or clarify its request. 	(Oakland Unified School District (1983) PERB Decision
No. 367.)
Tyner and her union representatives were informed at the beginning of the interview
that the District was seeking information on the process for the collecting and accounting of
associated student body funds. 	There is no indication that CSEA requested further clarification
at that time, or sought to reschedule the interview. Absent any evidence demonstrating that
CSEA notified the District the information was incomplete or that it needed further
clarification, the allegation that the District failed or refused to provide requested information
does not state a prima facie case.
3CSEA did not address this allegation in its appeal.
5

ORDER
The unfair practice charge in Case No. SF-CE-2397-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
66

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax:(510)622-1027
November 22, 2004
David R. Young, Labor Relations Representative
California School Employees Association
2345 Stanwell Circle
Concord, CA 94520
Re: 	California School Employees Association & its Chapter 347 v. Klamath-Trinity Joint
Unified School District
Unfair Practice Charge No. SF-CE-2397-E
DISMISSAL LETTER
Dear Mr. Young:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 7, 2004, and amended on September 8, 2004.1 The
California School Employees Association & its Chapter 347 alleges that the Klamath-Trinity
Joint Unified School District violated the Educational Employment Relations Act (EERA)22 by
discriminating against CSEA President Terry Tyner.
I indicated to you in my attached letter dated October 20, 2004, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. A second amended charge was filed on November 12, 2004.
The second amended charge adds the allegation that the District transferred duties previously
performed by Tyner in her classification of ASB/EDA to other bargaining unit members
without first notifying and negotiating with CSEA. 	PERB has held that there is no obligation
to notify or negotiate with an exclusive representative over duties transferred within the unit
unless those duties are not reasonably comprehended within the scope of the bargaining unit
employees' responsibilities. (Rio Hondo Community College District (1982) PERB Decision
No. 279.) There is no allegation here that the ASB/EDA duties assigned to other bargaining
unit members are not reasonably included within their jobs.
The warning letter expressly stated that without specific evidence of Tyner's recent
participation in protected activities the charge did not state a prima facie case. Nonetheless, no
such evidence is submitted in the second amended charge. The charge reiterates that there was
an angry exchange between Tyner and George on August 27, 2004, but this took place two
1 The warning letter erroneously omitted mention of the first amended charge.
2 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-2397-E
November 22, 2004
Page 2
months after Tyner's position was eliminated. Further, there is no evidence that the District
has based any of its employment decisions on protected activity.
Subsequent to the issuance of the warning letter, it was called to my attention that you did not
receive a copy of the District's response to the charge. A copy was faxed to you which
erroneously omitted the exhibits filed with this office. 	You urge that this charge not be
dismissed "based on unsubstantiated information derived from improperly processed
documents." 	The reasons for dismissing this charge are not based on statements in the
District's response, but because the amended charge fails to demonstrate a nexus between the
District's elimination of Tyner's position and her protected activities.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. 	(Regulation 32635(b).)
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-2397-E
November 22, 2004
Page 3
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. 	(See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. 	(Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. 	A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. 	(Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Jerilyn Gelt
Labor Relations Specialist
Attachment
cc: Roman J. Munoz
'
(\
\ 	\ 	'
L/

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax:(510)622-1027
October 20, 2004
David R. Young, Labor Relations Representative
California School Employees Association
2345 Stanwell Circle
Concord, CA 94520
Re: 	California School Employees Association & its Chapter 347 v. Klamath-Trinity Joint
Unified School District
Unfair Practice Charge No. SF-CE-2397-E
WARNING LETTER
Dear Mr. Young:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 7, 2004. The California School Employees Association & its
Chapter 347 alleges that the Klamath-Trinity Joint Unified School District violated the
Educational Employment Relations Act (EERA)1 by discriminating against CSEA President
Terry Tyner.
Tyner has served as Chapter President, chairperson of the negotiating team and job steward
during the past five years. 	She has been personally involved in almost all of CSEA's
representational activities involving bargaining unit members during that time.
Tyner served for several years in the position of secretary/high school prior to the summer of
2002. At that time, she was hired into a newly created position of ASB/Educational Data
Analyst. The supervisor for this position is Assistant Superintendent for Business Services
Laura Lee George. 	The salary for this position is $2.70-$2.88 higher than that of her previous
position.
The ASB/Educational Data Analyst position was eliminated effective June 30, 2004. 	The
charge alleges that the position was eliminated based largely on the fact that Tyner was the
incumbent, rather than for any legitimate reason. The charge asserts that a history of
prejudicial District treatment of Tyner supports this allegation.
The first instance of prejudicial District treatment occurred in October 2001, when a document
was discovered in Tyner's personnel file. It was prepared by her supervisor at the high school
and documented her absences from work, particularly those relating to union business. 	CSEA
requested that the document be removed from the file.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-2397-E
October 20, 2004
Page 2
The next incident occurred in December 2002, when George requested that Tyner keep a
detailed daily log of her activities. CSEA requested that George "cease and desist" from
requiring Tyner to keep the log, alleging that the District appeared to be interfering with,
restraining and coercing Tyner as a result of her participation in union activities.
On January 24, 2003, George responded to CSEA's letter, denying any bias. 	George asserted
that the log had been discussed with Tyner as a means of addressing her concerns that she
might be unable to handle the responsibilities her new position required. 	George also stated
that such logs aided her in justifying the new positions.
On March 3, 2004, George sent Tyner a memo regarding a telephone conversation they had on
February 26, 2004. 	The memo disputes Tyner's recollection regarding when/if George
informed her that her position would be eliminated; admonishes Tyner for failing to report to
her on her activities, and called into question "your honesty, integrity, and ethical behavior."
The charge alleges that George's memo misrepresented facts, essentially blamed Tyner for the
elimination of her position, and threatened disciplinary action. No such action was taken.
Sometime prior to March 12, 2004, George sent Tyner a letter requiring that she attend an
interview on that date, and stating that she had the right to bring a representative with her.
Both Tyner and CSEA asked Respondent to inform them of the purpose of the meeting, but
received no response. However, at the beginning of the interview, District counsel informed
Tyner that its purpose was to review the accounting practices related to the Associated Student
Body fund at Hoopa High School while she was a secretary there. The charge alleges that the
interview was hostile and unpleasant. 	Charging Party also states that it assumes that the
interview was to gather evidence either for disciplinary purposes or to deny Tyner her
contractual bumping rights. Tyner has not been disciplined, and she was bumped into her
previous position.
On August 27, 2004, George engaged in a conversation with Tyner at a mandatory meeting of
District secretaries. The charge alleges that George was hostile toward Tyner, yelling and
shouting responses to her questions.
Respondent asserts that the elimination of Tyner's ASB/Educational Data Analyst position was
due to lack of funding. Respondent states that in 2002-2003, it received a substantial increase
in Impact Aid Program funding, from almost $1.6 million to almost $2.4 million. With this
money, it created four new positions, a school psychologist, an Indian Education Director, a
reading specialist and Tyner's position. 	In 2004, this funding was dramatically reduced,
resulting in a loss of $673,066. 	Consequently, Respondent eliminated three of the four
positions, including Tyner's, and reduced one position by .6 FTE. Due to budgetary concerns,
other positions were eliminated in the certificated unit and reduced in the classified unit.
To demonstrate a violation of EERA section 3543.5(a), the charging party must show that:
(1) the employee 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,

. SF-CE-2397-E
October 20, 2004
Page 3
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
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.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. 	(Moreland Elementary School
District (1982) PERB Decision No. 227.) 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, 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 School
District, supra. PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. 	(Tab Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test
and will not rely upon the subjective reactions of the employee. (Ibid.) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
This charge is deficient for several reasons. 	First, there is no specific evidence of Tyner's
recent participation in protected activities. The general statement regarding her ongoing
participation in union activities is not sufficient to demonstrate that the discrimination, if any,
is due to a specific incident or activity.
Several incidents have been set forth to demonstrate Respondent's hostility toward Tyner. 	The
earliest of these took place in 2001 and 2002. Even if these incidents demonstrated animus,
they are so remote in timing as to be immaterial to this charge. The next occurrence involved a
March 3, 2004, memo from George to Tyner critical of her job performance and questioning

SF-CE-2397-E
"October 20, 2004
Page 4
her ethics. Finally, Tyner was called to an interview on March 12, 2004, with George and
Respondent's counsel regarding a financial irregularity in an account she oversaw while in her
previous position. 	She was told prior to the meeting that she had the right to bring a
representative with her. 	She has not been disciplined as a result of either the March 2003
memo or interview.
It does not appear that Tyner's position was eliminated in a discriminatory manner. 	Of the
four positions created with the infusion of money to the District, three were eliminated and one
was reduced when that funding dried up. 	That Tyner's classified position was the only
classified position eliminated does not reflect animus toward her. 	Simply put, it was the only
classified position created with the new funding; therefore, it stands to reason that it would be
the only eliminated.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. 	The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before November 1, 2004, I shall dismiss your
charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Jerilyn Gelt
Labo' r Relation, s Specialist
JAG
, 	,