Chula Vista Elementary School District * * * OVERRULED IN PART by Bellflower Unified School District (2017) PERB Order No. Ad-447 (PERB 2221E)

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

OVERRULED IN PART by Bellflower Unified School
District (2017) PERB Order No. Ad-447

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JOYCE SINGER ABRAMS,
Charging Party, Case No. LA-CE-5289-E
Vv. PERB Decision No. 2221
CHULA VISTA ELEMENTARY SCHOOL November 23, 2011
DISTRICT,
Respondent.

Appearances: California Teachers Association by Brenda E. Sutton-Wills, Attorney, for Joyce
Singer Abrams; Fagen Friedman & Fulfrost by Susan B. Winkelman, Attorney, for Chula Vista
Elementary School District.
Before Martinez, Chair, McKeag and Dowdin Calvillo, Members.
DECISION

MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Chula Vista Elementary School District (District)
to a PERB administrative law judge’s (ALJ) proposed decision (attached) arising out of an
unfair practice charge filed by Joyce Singer Abrams (Abrams). The charge and complaint
alleged that the District retaliated against Abrams in violation of the Educational Employment
Relations Act (EERA).' After a two-day hearing and the filing of closing briefs by both
parties, the ALJ found in favor of Abrams, concluding that the District retaliated against

Abrams when it denied her reapplication’ to be a support provider (SP) in the Beginning

Teacher Support and Assessment (BTSA) Induction Program.

' EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all further statutory references are to the Government Code.

? The action taken by the District against Abrams is described alternatively throughout
the record as a denial of Abrams’ SP reapplication, a non-renewal of Abrams’ SP position and

The Board has reviewed the entire record including the ALJ's proposed decision, the
hearing transcripts and exhibits, the District's exceptions and Abrams' response to the
exceptions. Based on this review and applying the relevant law, the Board finds the proposed
decision to be well-reasoned, adequately supported by the evidentiary record and in accordance
with the applicable law. Accordingly, the Board adopts the proposed decision as the decision
of the Board itself, as supplemented by the following discussion of the District's exceptions.
For reasons explained below, however, the Board does not adopt the ALJ's proposed order and
notice. The order and notice of the Board in this matter are included at the end of the Board's
discussion of the District's exceptions.
SUMMARY OF FACTS
Abrams
Abrams worked as a teacher in the District, a public school employer under EERA, for
39 years. For the last eight years of her tenure with the District, starting in 2000, she also
worked as a BTSA Induction Program SP.
Abrams was actively involved in Chula Vista Educators (CVE), an employee
organization and exclusive representative. She considered herself "a voice and a force with the
union" and was known by most teachers in the District as a union activist. From 1995 on,
Abrams was a member of CVE's board of directors. Abrams was the California Teachers
Association representative to the Committee on Accreditation workgroup. In the last couple of
years, Abrams became very active in CVE when teachers with up to ten years of experience
began receiving pink slips.
a failure to reinstate Abrams to her SP position. These various descriptions all refer to the
same occurrence, and the differences in phraseology are immaterial. The dispute between the
parties concerns the District's motive for taking this action, not the nature of the action itself.
2
The Board has reviewed the entire record including the ALJ' s proposed decision, the
hearing transcripts and exhibits, the District's exceptions and Abrams' response to the
exceptions. Based on this review and applying the relevant law, the Board finds the proposed
decision to be well-reasoned, adequately supported by the evidentiary record and in accordance
with the applicable law. Accordingly, the Board adopts the proposed decision as the decision
of
the Board itself, as supplemented by the following discussion
of
the District's exceptions.
For reasons explained below, however, the Board does not adopt the ALJ's proposed order and
notice. The order and notice
of
the Board in this matter are included at the end
of
the Board's
discussion
of
the District's exceptions.
SUMMARY OF FACTS
Abrams
Abrams worked as a teacher in the District, a public school employer under EERA, for
39 years. For the last eight years
of
her tenure with the District, starting in 2000, she also
worked as a BTS.A Induction Program SP.
Abrams was actively involved in Chula Vista Educators (CVE), an employee
organization and exclusive representative. She considered herself
"a
voice and a force with the
union" and was known by most teachers in the District as a union activist. From 1995 on,
Abrams was a member
of
CVE's board
of
directors. Abrams was the California Teachers
Association representative to the Committee on Accreditation workgroup. 	the last couple of
years, Abrams became very active in CVE when teachers with up to ten years of experience
began receiving pink slips.
a failure to reinstate Abrams to her SP position. These various descriptions all refer to the
same occurrence, and the differences in phraseology are immaterial. The dispute between the
parties concerns the District's motive for taking this action, not the nature of the action itself.
2

The District
The Board of Education is composed of: David Bejarano; Larry Cunningham
(Cunningham); Patrick A. Judd; Bertah J. Lopez; and Pamela B. Smith.
The Superintendent of the District is Lowell J. Billings, Ed.D (Billings). The Assistant
Superintendent of Human Resources Services and Support is Thomas J. Cruz, Ed.D (Cruz).
The Director of Human Resources Services and Support is Fran Lebron (Lebron).
The Cabinet is the Superintendent's executive board. The Cabinet is composed of the
Superintendent, the Assistant Superintendent for Human Resources Services and Support, the
Assistant Superintendent for Business Services, five Executive Directors from Instructional
Services and the Communications Officer.
The BTSA Induction Program
The BTSA Induction Program matches experienced teachers with
participating/beginning teachers (PT) to give PT's training and assistance necessary for their
professional development. The goals of the BTSA Induction Program are to improve the
educational performance of students and to assist the PT's in meeting their credentialing
requirements. In short, SP's serve in the role of mentor teachers. SP's serve a one-year term
renewable on a year-to-year basis.
The Collective Bargaining Agreement (CBA) Between the District and CVE
The BTSA Induction Program is addressed in Article 55.1 of the CBA, which provides:
The District and CVE will form a BTSA joint committee to
establish rules and procedures to effect the provisions of this
article provided that those rules shall be consistent with the
statutory authority for the program and consistent with the current
BTSA program design. . . .
. . . . . .
Should an SP fail to fulfill his or her roles and responsibilities,
the committee may take action to remove the SP from the role
The District
The Board of Education is composed of: David Bejarano; Larry Cunningham
(Cunningham); Patrick A. Judd; Bertah J. Lopez; and Pamela B. Smith.
The Superintendent of the District is Lowell J. Billings, Ed.D (Billings). The Assistant
Superintendent of Human Resources Services and Support is Thomas J. Cruz, Ed.D (Cruz).
The Director of Human Resources Services and Support is Fran Lebron (Lebron).
The Cabinet is the Superintendent's executive board. The Cabinet is composed of the
Superintendent, the Assistant Superintendent for Human Resources Services and Support, the
Assistant Superintendent for Business Services, five Executive Directors from Instructional
Services and the Communications Officer.
The BTSA Induction Program
The BTSA Induction Program matches experienced teachers with
participating/beginning teachers (PT) to give PT's training and assistance necessary for their
professional development. The goals of the BTSA Induction Program are to improve the
educational performance of students and to assist the PT' s in meeting their credentialing
requirements. In short, SP' s serve in the role of mentor teachers. SP' s serve a one-year term
renewable on a year-to-year basis.
The Collective Bargaining Agreement (CBA) Between the District and CVE
The BTSA Induction Program is addressed in Article 55.1 of the CBA, which provides:
The District and CVE will form a BTSA joint committee to
establish rules and procedures to effect the provisions of this
article provided that those rules shall be consistent with the
statutory authority for the program and consistent with the current
BTSA program design ....
Should an SP fail to fulfill his or her roles and responsibilities,
the committee may take action to remove the SP from the role
3

with or without cause. The joint committee may remove an SP
from the position at any time for performance problems. Prior to
the effective date of such removal, the committee will provide the
SP with a written statement of the reasons for the removal, and at
the request of the committee, will meet with him or her to discuss
the reasons. The performance of the SP as an SP shall not be a
component of the regular evaluation and shall remain a matter
between the teacher and the committee.
The BTSA SP Guidelines
The BTSA SP Guidelines enumerate the qualifications for the SP position:
I. 	Qualifications
a. Professional Multiple Subject Teaching Credential or
equivalent
b. CTEL, CLAD/LDS or SB 1969/SB 395 Certification or
BCLAD/BCC Certification
c. A minimum of five successful years teaching experience in
grades K-8, three of which are in the Chula Vista Elementary
School District with strong recommendations from current /past
principal(s)
d. A strong role model and successful instruction leader based on
previous knowledge, experience, activities, and accomplishments
e. Permanent or retired teacher status in district
The reapplication process is described in relevant part:
a. The support provider submits a reapplication at the end of
each term.
b. The Advisory Board reviews the reapplication and makes a
decision to renew or discontinue the support provider's position
based on his/her adherence to set criteria and guidelines and the
needs of the program.
4
with or without cause. The joint committee may remove an SP
from the position at any time for performance problems. Prior to
the effective date of such removal, the committee will provide the
SP with a written statement of the reasons for the removal, and at
the request of the committee, will meet with him or her to discuss
the reasons. The performance of the SP as an SP shall not be a
component of the regular evaluation and shall remain a matter
between the teacher and the committee.
The BTSA SP Guidelines
The BTSA SP Guidelines enumerate the qualifications for the SP position:
I. 	Qualifications
a. Professional Multiple Subject Teaching Credential or
equivalent
b. CTEL, CLAD/LDS or SB 1969/SB 395 Certification or
BCLAD/BCC Certification
c. A minimum of five successful years teaching experience in
grades K-8, three of which are in the Chula Vista Elementary
School District with strong recommendations from current /past
principal(s)
d. A strong role model and successful instruction leader based on
previous knowledge, experience, activities, and accomplishments
e. Permanent or retired teacher status in district
The reapplication process is described in relevant part:
VII. 	Reanplication	VII. Reapplication
a. The support provider submits a reapplication at the end of
each term.
b. The Advisory Board reviews the reapplication and makes a
decision to renew or discontinue the support provider's position
based on his/her adherence to set criteria and guidelines and the
needs of the program.
4

Should an SP fail to fulfill his or her duties, the following steps are to be taken:
VIII. Support Provider Interventions
The following steps will be taken should a support provider fail
to fulfill his/her roles and responsibilities:
. The director talks with the support provider and drafts an action
plan.
. If the action plan is not followed, the director brings the issue
to the Advisory Board.
. The support provider's stipend may be withheld or
discontinued based upon recommendation of the Board.
. The Advisory Board meets with the support provider and
makes a decision to renew or discontinue the support provider's
position.
The BTSA Advisory Board
Pursuant to the CBA, the BTSA Advisory Board, also referred to in the CBA as the
BTSA joint committee, is composed of three appointments made by CVE and three
appointments made by the District. At all relevant times here, members of the BTSA Advisory
Board were: (1) Lebron; (2) CVE President Peg Myers (Myers); (3) Katy Croy, a Point Loma
Nazarene University representative; and (4) Principal Tom Glover.
Abrams' 2007-2008 Term and Reapplication for the 2008-2009 Term
Abrams served as a BTSA Induction Program SP for the eighth consecutive school year
during the 2007-2008 term. She entered into an SP agreement for that term on or about
September 10, 2007, agreeing to adhere to the SP agreement" and the BTSA SP Guidelines.
another part of the record, the composition of the BTSA Advisory Board is
described as including Kathleen Fernandez, a teacher. The exact composition of the BTSA
Advisory Board is not material to the resolution of the disputed issue.
* Under the SP agreement, the SP agrees to comply with specific criteria, which mirror
Section III of the BTSA SP Guidelines describing the roles and responsibilities of the SP.
These roles and responsibilities can be summarized as follows: maintain confidentiality;
5
Should an SP fail to fulfill his or her duties, the following steps are to be taken:
VIII. 	Support Provider Interventions
The following steps will be taken should a support provider fail
to fulfill his/her roles and responsibilities:
• The director talks with the support provider and drafts an action
plan.
• If the action plan is not followed, the director brings the issue
to the Advisory Board.
• The support provider's stipend may be withheld or
discontinued based upon recommendation of the Board.
• The Advisory Board meets with the support provider and
makes a decision to renew or discontinue the support provider's
position.
The BTSA Advisory Board
Pursuant to the CBA, the BTSA Advisory Board, also referred to in the CBA as the
BTSAjoint committee, is composed of three appointments made by CVE and three
appointments made by the District. At all relevant times here, members of the BTSA Advisory
Board were: 	(1) Lebron; (2) CVE President Peg Myers (Myers); (3) Katy Croy, a Point Loma
Nazarene University representative; and (4) Principal Tom Glover.3
Abrams' 2007-2008 Term and Reapplication for the 2008-2009 Term
,.~,._brams served as a BTSi1,. Induction Program SP for the eighth consecutive school year
during the 2007-2008 term. She entered into an SP agreement for that term on or about
September 10, 2007, agreeing to adhere to the SP agreement4 and the BTSA SP Guidelines.
In In another part of the record, the composition of the BTSA Advisory Board is
described as including Kathleen Fernandez, a teacher. The exact composition of the BTSA
Advisory Board is not material to the resolution of the disputed issue.
4 Under the SP agreement, the SP agrees to comply with specific criteria, which mirror
Section III of the BTSA SP Guidelines describing the roles and responsibilities of the SP.
These roles and responsibilities can be summarized as follows: maintain confidentiality;
5

In or around April 2008, Abrams submitted a BTSA SP Reapplication for 2008-2009,
indicating that she would be willing to support up to two year round or traditional PT's.
The BTSA coordinator (also referred to as the BTSA director), Soung Wegenka
(Wegenka), distributed a memorandum dated April 14, 2008, which noted:
It's a difficult and unfortunate time for all of us, especially our
PTs, as we wait and wonder about potential cuts in our district.
As far as BTSA is concerned, the Department of Education and
the Commission on Teacher Credentialing are continuing to
support it fully. It's a matter of whether or not our district will
have PTs next year. I haven't heard anything yet, but as soon as I
do I will let you know. In the meantime, let's think positively
and try our best to continue with our work.
INFORMATION
. Summer Training will be held on June 16 and 17 from
8:30-3:30 (location TBD). This is a mandatory training and part
of your stipend. Therefore, if you are unable to attend, please let
me know in advance so that we can make make-up arrangements.
Although we are in limbo, we will continue with the training to
prepare ourselves for 08-09.
Abrams received an e-mail from Kimberly Valdivia, the BTSA secretary, dated
June 11, 2008, regarding the upcoming BTSA Summer Training for the 2008-2009 school
year. The e-mail included a note from Wegenka, which stated in relevant part:
I'm glad that most of you will be returning and look forward to
seeing you at Summer Training. (If you marked that you will be
returning, you are good to go for 08-09). For those of you who
will not be returning, I will miss you and wish you the best.
develop a trusting, meaningful and supportive relationship with the PT; meet with the PT a
minimum of one-hour per week; work with the PT on CFASST and develop an Individual
Induction Plan; submit a monthly log documenting the weekly contacts (visits, e-mails,
telephone calls) with the PT; collaborate with colleagues; and participate in BTSA trainings
and activities.
66
In or around April 2008, Abrams submitted a BTSA SP Reapplication for 2008-2009,
indicating that she would be willing to support up to two year round or traditional PT' s.
The BTSA coordinator (also referred to as the BTSA director), Soung Wegenka
(Wegenka), distributed a memorandum dated April 14, 2008, which noted:
It's a difficult and unfortunate time for all of us, especially our
PTs, as we wait and wonder about potential cuts in our district.
As far as BTSA is concerned, the Department of Education and
the Commission on Teacher Credentialing are continuing to
support it fully. 	It's a matter of whether or not our district will
have PTs next year. I haven't heard anything yet, but as soon as I
do I will let you know. 	In the meantime, let's think positively
and try our best to continue with our work.
INFORMATION
• Summer Training will be held on June 16 and 17 from
8:30-3:30 (location TBD). This is a mandatory training and part
of your stipend. Therefore, if you are unable to attend, please let
me know in advance so that we can make make-up arrangements.
Although we are in limbo, we will continue with the training to
prepare ourselves for 08-09.
Abrams received an e-mail from Kimberly Valdivia, the BTSA secretary, dated
June 11, 2008, regarding the upcoming BTSA Summer Training for the 2008-2009 school
year. The e-mail included a note from Wegenka, which stated in relevant part:
I'm glad that most of you will be returning and look forward to
seeing you at Summer Training. (If you marked that you will be
returning, you are good to go for 08-09). For those of you who
will not be returning, I will miss you and wish you the best.
develop a trusting, meaningful and supportive relationship with the PT; meet with the PT a
minimum of one-hour per week; work with the PT on CF ASST and develop an Individual
Induction Plan; submit a monthly log documenting the weekly contacts (visits, e-mails,
telephone calls) with the PT; collaborate with colleagues; and participate in BTSA trainings
and activities.

On or around June 14, 2008, Abrams retired. On June 16 and 17, 2008, Abrams
attended the BTSA Summer Training for the 2008-2009 school year.
Based on the above set of events, Abrams believed that her SP position had been
renewed for the 2008-2009 school year. Then Abrams received a letter addressed to SPs from
Lebron dated July 10, 2008, regarding the reapplication process:
The BTSA Advisory Board will review your reapplications. We
will then notify you of the Advisory Board's decision. Our goal
is to complete the reapplication process and have support
providers in place by July 21, 2008.
The BTSA Advisory Board met on July 16, 2008. The Advisory Board reviewed the
reapplications and the logs kept by the SP's documenting how often they met with their PT's.
The Advisory Board determined that 14 of the SP re-applicants, including Abrams, had not met
the one-hour per week meeting requirement.
According to Lebron, the Advisory Board recommended to the Cabinet that the 14 SPs
not be renewed based solely on the Advisory Board's review of their logs showing a lack of
compliance with the one-hour per week meeting requirement. Lebron testified: "After it went
to cabinet, and then they came back and told us what their decision was, and then we notified
the participants, or those that had reapplied, sorry."
renew them. Lebron stated in relevant part:
Before the start of the new school year, the Advisory Board reviews
each application and makes a decision to renew or discontinue the
support provider's position based on his/her adherence to set criteria
and guidelines and the needs of the program.
After careful consideration, the Advisory Board has decided not
to renew your Support Provider position. Should you have any
questions regarding this decision, please contact Fran Lebron at
[telephone number omitted].
(Bold in the original.) This letter was copied to Abrams' personnel file.
On or around June 14, 2008, Abrams retired. On June 16 and 17, 2008, Abrams
attended the BTSA Summer Training for the 2008-2009 school year.
Based on the above set of events, Abrams believed that her SP position had been
renewed for the 2008-2009 school year. Then Abrams received a letter addressed to SPs from
Lebron dated July 10, 2008, regarding the reapplication process:
The BTSA Advisory Board will review your reapplications. We
will then notify you of the Advisory Board's decision. Our goal
is to complete the reapplication process and have support
providers in place by July 21, 2008.
The BTSA Advisory Board met on July 16, 2008. The Advisory Board reviewed the
reapplications and the logs kept by the SP's documenting how often they met with their PT's.
The Advisory Board determined that 14 of the SP re-applicants, including Abrams, had not met
the one-hour per week meeting requirement.
According to Lebron, the Advisory Board recommended to the Cabinet that the 14 SPs
not be renewed based solely on the Advisory Board's review of their logs showing a lack of
compliance with the one-hour per week meeting requirement. Lebron testified: "After it went
to cabinet, and then they came back and told us what their decision was, and then we notified
the participants, or those that had reapplied, sorry."
By letter dated July 28, 2008, Lebron notified the 14 re-applicants of the decision not to
renew them. Lebron stated in relevant part:
Before the start of the new school year, the Advisory Board reviews
each application and makes a decision to renew or discontinue the
support provider's position based on his/her adherence to set criteria
and guidelines and the needs of 	program.
After careful consideration, the Advisory Board has decided not
to renew your Support Provider position. Should you have any
questions regarding this decision, please contact Fran Lebron at
[telephone number omitted].
(Bold in the original.) This letter was copied to Abrams' personnel file.
7

Approximately two weeks after the BTSA Advisory Board met, Myers learned that
Wegenka had already told the SP's who had reapplied that they were coming back for the
2008-2009 school year. Myers met with Lebron and recommended that all the SP's be
reinstated.
On Monday, August 4, 2008, Abrams sent Lebron an e-mail message requesting that
Lebron call her. After an exchange of telephone and e-mail messages, Lebron sent Abrams an
e-mail message on Saturday, August 9, 2008, which stated in relevant part:
Anyway, the BTSA Advisory Board . . . met and went through
the BTSA SPs guidelines. We went through all the applications,
the logs and any documentation turned in. We compared them to
the agreement that was signed by the SPs. We then gave the
names of those that met and did not meet the agreement to
Cabinet for discussion and final approval with Lowell.
Part of the guidelines was the number of hours (one hour a week)
that SPs were supposed to meet with their PTs and another part
was the monthly logs to show the contacts made with the PTS.
Many SPs did not meet that part of the agreement.
On August 11, 2008, Abrams met with Lebron in person. During this meeting, Abrams
and Lebron reviewed data from Abrams' logs. It was Abrams' firm belief that she had met the
minimum hours requirement and that her time records had been miscalculated. According to
Abrams, Lebron agreed upon review of Abrams' logs that there had been a mistake and that
Abrams had met the one-hour per week meeting requirement. Abrams testified that Lebron
told her that the only reason she had not been recommended for renewal was because of the
logs. Also according to Abrams, Lebron agreed to talk to Cruz and, if necessary, Billings.
Not having heard back from Lebron after three and a half weeks, Abrams sent Lebron
a follow-up e-mail message on September 4, 2008, stating: "[Ijt was my understanding that
you were going to push through corrective action, and that I would hear from you very soon."
88
Approximately two weeks after the BTSA Advisory Board met, Myers learned that
Wegenka had already told the SP's who had reapplied that they were coming back for the
2008-2009 school year. Myers met with Lebron and recommended that all the SP's be
reinstated.
On Monday, August 4, 2008, Abrams sent Lebron an e-mail message requesting that
Lebron call her. After an exchange
of
telephone and e-mail messages, Lebron sent Abrams an
·e-mail message on Saturday, August 9, 2008, which stated in relevant part:
Anyway, the BTSA Advisory Board
...
met and went through
the BTSA SPs guidelines. We went through all the applications,
the logs and any documentation turned in. We compared them to
the agreement that was signed by the SPs. We then gave the
names
of
those that met and did not meet the agreement to
Cabinet for discussion and final approval with Lowell.
Part
of
the guidelines was the number
of
hours (one hour a week)
that SPs were supposed to meet with their PTs and another part
was the monthly logs to show the contacts made with the PTS.
Many SPs did not meet that part
of
the agreement.
I hope this makes sense.	I hope this makes sense.
On August 11, 2008, Abrams met with Lebron in person. During this meeting, Abrams
and Lebron reviewed data from Abrams' logs. It was Abrams' firm belief that she had met the
minimum hours requirement and that her time records had been miscalculated. According to
Abrams, Lebron agreed upon review
of
Abrams' logs that there had been a mistake and that
Abrams had met the one-hour per week meeting requirement. Abrams testified that Lebron
told her that the only reason she had not been recommended for renewal was because
of
the
logs. Also according to Abrams, Lebron agreed to talk to Cruz and,
if
necessary, Billings. 5
5 Not having heard back from Lebron after three and a half weeks, Abrams sent Lebron
a follow-up e-mail message on September 4, 2008, stating: "[I]t was my understanding that
you were going to push through corrective action, and that I would hear from you very soon."

Lebron testified about the August 11, 2008, meeting with Abrams as follows:
Q 	Did you tell her that the logs were incorrect and that you
would fix them?
A 	Not that I would fix them. I told her that, yes, they were
incorrect. And she had told me that she met at other times with
them. And I said, okay, but I still don't have the documentation.
And I told her that might have been the case but again, you know,
I cannot fix a log because it's something that she has signed.
. . . . . . . . 	. . . . . .
Q 	Did you ever tell her that you thought she should be
reinstated?
A 	No. I said that I would find out for her if they would
reinstate her, because she had wanted to be reinstated. And I told
her that, you know, I could let Dr. Cruz know of her desire to be
reinstated. But I can't really make that decision. It's not up to
me
Lebron testified that she held similar meetings with other SP's whose reapplications
were not renewed based on the Advisory Board's review of their logs. Sometime thereafter,
Lebron met with Cruz for approximately 45 minutes to review the logs of these re-applicants.
Lebron testified that after reviewing the logs with Cruz, she continued to believe that the
Advisory Board's original determination was correct. The Cabinet, however, ultimately
reinstated all but two of the 14 re-applicants who initially had been told by the Advisory
Board that they had not been renewed for the 2008-2009 term.
On August 18, 2008, the District posted a notice "Open to District Employees Only"
advertising vacancies for 18 BTSA SPs (Notice). The four qualifications for the position listed
N 	e 	TSA SP Guidelines.
Cruz testified that Dennis Gascon (Gascon) was the only other SP besides Abrams
who was not reinstated by the Cabinet.
9
Lebron testified about the August 11, 2008, meeting with Abrams as follows:
Q 	Did you tell her that the logs were incorrect and that you
would fix them?
A 	Not that I would fix them. I told her that, yes, they were
incorrect. And she had told me that she met at other times with
them. And I said, okay, but I still don't have the documentation.
And I told her that might have been the case but again, you know,
I cannot fix a log because it's something that she has signed.
Q 	Did you ever tell her that you thought she should be
reinstated?
A 	No. I said that I would find out for her if they would
reinstate her, because she had wanted to be reinstated. And I told
her that, you know, I could let Dr. Cruz know of her desire to be
reinstated. But I can't really make that decision. It's not up to
me.
Lebron testified that she held similar meetings with other SP's whose reapplications
were not renewed based on the Advisory Board's review of their logs. Sometime thereafter,
Lebron met with Cruz for approximately 45 minutes to review the logs of these re-applicants.
Lebron testified that after reviewing the logs with Cruz, she continued to believe that the
Advisory Board's original determination was correct. The Cabinet, however, ultimately
reinstated all but two6 of the 14 re-applicants who initially had been told by the Advisory
Board that they had not been renewed for the 2008-2009 term.
On August 18, 2008, the District posted a notice "Open to District Employees Only"
advertising vacancies for 18 BTSA SPs (Notice). The four qualifications for the position listed
in the	the Notice	otice are identical to the first four qualifications list	are identical to the 	four qualifications listed	d in the BBTSA SP Guidelines.
6 Cruz testified that Dennis Gascon (Gascon) was the only other SP besides Abrams
who was not reinstated by the Cabinet.
9

The fifth qualification listed in the BTSA SP Guidelines, which requires the SP to be either a
permanent or retired teacher in the District, was omitted from the Notice.
By letter dated September 17, 2008, Cruz informed Abrams that she was not selected
for the 2008-2009 school year. The letter contained no explanation of the basis for the
decision.
Abrams filed level I and level II grievances on October 3, 2008, and a second level II
grievance on October 14, 2008. By letter dated October 16, 2008, Cruz dismissed Abrams'
grievances on the ground that, as a retired teacher, Abrams was no longer covered by the CBA.
Myers had earlier decided not to file a grievance on behalf of the 14 BTSA SPs whose
reapplications had been denied because it was her understanding that the District was going to
follow through with her recommendation that they all be reinstated.
On November 10, 2008, at 9:41 a.m., Cunningham left the following telephone message
on Abrams' answering machine:
Joyce, this is Larry again. I've been in LA for the last five days,
but give me a, give me a call on my cell phone. It's probably the
easiest place to get a hold of me, [phone number omitted]. I
talked to Lowell [Billings] and Tom [Cruz], and it really comes
down to the point that they just wanted to go in a different
direction. I mean, they felt that, you know, you've always been
very negative about what the District did and where they were
going and what direction they were going in, so they just felt that
they wanted to go in a different direction. And so that's what they
told me about it. So, if you want to discuss if [sic] further, give
me a call, but that's what I got from it. Talk to you later. Bye.
On November 12, 2008, Abrams spoke to Cunningham by telephone. Admitted into
evidence at the hearing was a note Abrams made memorializing their conversation:
I stated that I had given my heart and soul to the CVESD for 39
years. That, in all of those years of employment, not once was
there a reference to my negativity in any evaluation that I had
received. He said he thought that it was in reference to my
association and activism in the union, CVE.
10
The fifth qualification listed in the BTSA SP Guidelines, which requires the SP to be either a
permanent or retired teacher in the District, was omitted from the Notice.
By letter dated September 17, 2008, Cruz informed Abrams that she was not selected
for the 2008-2009 school year. The letter contained no explanation
of
the basis for the
decision.
Abrams filed level I and level II grievances on October 3, 2008, and a second level II
grievance on October 14, 2008. By letter dated October 16, 2008, Cruz dismissed Abrams'
grievances on the ground that, as a retired teacher, Abrams was no longer covered by the CBA.
Myers had earlier decided not to file a grievance on behalf
of
the 14 BTSA SPs whose
reapplications had been denied because it was her understanding that the District was going to
follow through with her recommendation that they all be reinstated.
On November 10, 2008, at 9:41 a.m., Cunningham left the following telephone message
on Abrams' answering machine:
Joyce, this is Larry again. I've been in LA for the last five days,
but give me a, give me a call on my cell phone. It's probably the
easiest place to get a hoid
of
me, [phone number omitted]. I
talked to Lowell [Billings] and Tom [Cruz], and it really comes
down to the point that they just wanted to go in a different
direction. I mean, they felt that, you know, you've always been
very negative about what the District did and where they were
going and what direction they were going in, so they just felt that
they wanted to go in a different direction. And so that's what they
told me about it. So,
if
you want to discuss
if
[sic] further, give
me a call, but that's what I got from it. Talk to you later. Bye.
On November 12, 2008, Abrams spoke to Cunningham by telephone. Admitted into
evidence at the hearing was a note Abrams made memorializing their conversation:
I stated that I had given my heart and soul to the CVESD for 39
years. That, in all of those years of employment, not once was
there a reference to my negativity 	any evaluation that I had
received. He said he thought that it was in reference to my
association and activism in the union, CVE.

I stated I thought there were laws against being retaliated against
because of my union participation.
I have been singled out and discriminated against.
By letter dated November 12, 2008, Myers requested that Cruz send Abrams a letter
explaining the basis for the District's decision not to reinstate her. Myers' letter stated in
pertinent part:
Usually, this letter would come from the BTSA Coordinator, but
because the decision came from the Chula Vista Elementary
School District cabinet and was not a recommendation from the
BTSA Board, the letter must come from the district.
The Cabinet's Decision Not to Reinstate Abrams to the SP Position
By letter dated November 24, 2008, Cruz informed Abrams that the decision whether to
renew the BTSA SPs for the 2008-2009 school year was made by the Cabinet. Cruz wrote in
pertinent part:
Cabinet unanimously selected this year's participants based on
their employment status, the success of students in their
classroom, and their strong interpersonal skills. You were not
selected because you did not meet the Cabinet's criteria.
At the hearing, Cruz testified that the Cabinet did not renew Abrams' SP position solely
because of her interpersonal skills. In response to a question from the ALJ inquiring into the
nature of the Cabinet's concern about Abrams' interpersonal skills, Cruz testified in pertinent
part:
So the five executive directors and the superintendent are actually
in those classrooms on a regular basis. And it was from, many of
those folks had brought up concerns about her positive nature on
matters, how she, her outlook and support of the District. And
there were concerns that she may not be conveying the kinds of
messages to our new teachers that we would prefer, because her
interpersonal skills were abrasive and short whenever others had
interaction with her.
11
I stated I thought there were laws against being retaliated against
because of my union participation.
I have been singled out and discriminated against.
By letter dated November 12, 2008, Myers requested that Cruz send Abrams a letter
explaining the basis for the District's decision not to reinstate her. Myers' letter stated in
pertinent part:
Usually, this letter would come from the BTSA Coordinator, but
because the decision came from the Chula Vista Elementary
School District cabinet and was not a recommendation from the
BTSA Board, the letter must come from the district.
The Cabinet's Decision Not to Reinstate Abrams to the SP Position
By letter dated November 24, 2008, Cruz informed Abrams that the decision whether to
renew the BTSA SPs for the 2008-2009 school year was made by the Cabinet. Cruz wrote in
pertinent part:
Cabinet unanimously selected this year's participants based on
their employment status, the success of students in their
classroom, and their strong interpersonal skills. You were not
selected because you did not meet the Cabinet's criteria.
At the hearing, Cruz testified that the Cabinet did not renew Abrams' SP position solely
because of her interpersonal skills. In response to a question from the A..LJ inquiring into the
nature of the Cabinet's concern about Abrams' interpersonal skills, Cruz testified 	pertinent
part:
So the five executive directors and the superintendent are actually
in those classrooms on a regular basis. And it was from, many of
those folks had brought up concerns about her positive nature on
matters, how she, her outlook and support of the District. And
there were concerns that she may not be conveying the kinds of
messages to our new teachers that we would prefer, because her
interpersonal skills were abrasive and short whenever others had
interaction with her.
11

During the 2007-2008 school year, however, no individuals at the Cabinet level had
observed Abrams in either her teaching or SP role. ' When asked to elaborate on Abrams'
interpersonal skills during cross-examination, Cruz further testified:
As far as, and I'm using global generalizations, she didn't seem
to be happy or content with the School District, critical about the
District about management this, or principal this, or teachers this.
It just seemed that Joyce was not a happy positive person in her
interactions with the adults.
In contrast to Cruz's testimony that Abrams "was not a happy positive person in her
interactions with adults," the direct documentary and testimonial evidence on this point
supports the opposite conclusion as a factual matter. Performance evaluations date-stamped in
Human Resources on January 5, 2006, September 21, 2004, June 24, 2002, September 5,
2000, May 20, 1998, and June 1, 1994 were received into evidence. The evaluation form is
broken down into six evaluation components. The possible marks under each evaluation
component are "unsatisfactory," "requires improvement" and "effective." Effective is the
highest mark a teacher can receive on a performance evaluation. Abrams was evaluated as
effective for every evaluation component on every performance evaluation form.
One of the evaluation components is entitled Professional Relationships With Students,
Parents, Colleagues. What follows is a representative sampling of comments received by
Abrams under this evaluation component:
Mrs. Abrams is a staunch child advocate. She helps students to
recognize their strengths and talents, and she expects them to do
their best. Joyce communicates frequently with parents in
person, through phone calls, and through frequent newsletters.
She encourages parent involvement in their children's education.
Prior to the 2007-2008 school year, two of these individuals had observed Abrams in
her classroom on occasion. As there is no dispute that Abrams was renewed for the 2007-2008
school year, it must be concluded that whatever classroom observations there might have been
prior to the 2007-2008 school year, none were found to be disqualifying.
12
During the 2007-2008 school year, however, no individuals at the Cabinet level had
observed Abrams in either her teaching or SP role. 7 When asked to elaborate on Abrams'
interpersonal skills during cross-examination, Cruz further testified:
As far as, and I'm using global generalizations, she didn't seem
to be happy or content with the School District, critical about the
District about management this, or principal this, or teachers this.
It just seemed that Joyce was not a happy positive person in her
interactions with the adults.
In contrast to Cruz's testimony that Abrams "was not a happy positive person in her
interactions with adults," the direct documentary and testimonial evidence on this point
supports the opposite conclusion as a factual matter. Performance evaluations date-stamped in
Human Resources on January 5, 2006, September 21, 2004, June 24, 2002, September 5,
2000, May 20, 1998, and June 1, 1994 were received into evidence. The evaluation form is
broken down into six evaluation components. The possible marks under each evaluation
component are "unsatisfactory," "requires improvement" and "effective." Effective is the
highest mark a teacher can receive on a performance evaluation. Abrams was evaluated as
effective for every evaluation component on every performance evaluation form.
One of the evaluation components is entitled Professional Relationships With Students,
Parents, Colleagues. What follows is a representative sampling of comments received by
Abrams under this evaluation component:
Mrs. Abrams is a staunch child advocate. She helps students to
recognize their strengths and talents, and she expects them to do
their best. Joyce communicates frequently with parents in
person, through phone calls, and through frequent newsletters.
She encourages parent involvement in their children's education.
7 Prior to the 2007-2008 school year, two of these individuals had observed Abrams in
her classroom on occasion. As there is no dispute that Abrams was renewed for the 2007-2008
school year, it must be concluded that whatever classroom observations there might have been
prior to the 2007-2008 school year, none were found to be disqualifying.
12

Mrs. Abrams listens to her parents and devotes extra time to help
parents help their children.
(January 5, 2006, performance evaluation.)
Mrs. Abrams has earned the respect of students, parents, and
colleagues. She is a staunch child advocate, constantly focused
on what is in the best interest of her students. She helps students
to recognize their strengths, and settles for nothing less that [sic]
their best. Parents frequently request Mrs. Abrams because of her
high standards, rigorous curriculum, and the interest that she
takes in the success of each student. Joyce communicates
frequently and effectively with parents and encourages them to
stay involved in their children's education. Colleagues respect
Joyce's intelligence, knowledge, and experience. Joyce works
closely with her shared contract partner to ensure that students
receive a challenging and enriching educational program.
(June 24, 2002, performance evaluation.)
Joyce faces the challenge of collaborating with a grade level team
whose members all have strong opinions. She faces this
challenge with a positive attitude and makes every effort to keep
her partners focused on what's best for the kids. Joyce has
established a warm rapport with staff, students and parents and is
always willing to help others. She communicates frequently and
effectively with parents and encourages them to stay involved
with their children's education. Her belief in children's potential
is unmatched.
(May 20, 1998, performance evaluation.)
Mrs. Abrams has an excellent rapport with staff, students and
parents. She will go out of her way to help others and she never
gives up on a child. She believes that all children can and should
experience success and will provide whatever assistance is
needed to achieve that goal. She maintains close communication
with parents to work together with them to provide the best
learning experience possible for their child.
(June 1, 1994, performance evaluation.)
Robyn Kochon (Kochon) was Abrams' PT during the 2007-2008 school year. Kochon
testified that she had a great experience working with Abrams, and considered Abrams to be
13
Mrs. Abrams listens to her parents and devotes extra time to help
parents help their children.
(January 5, 2006, performance evaluation.)
Mrs. Abrams has earned the respect of students, parents, and
colleagues. She is a staunch child advocate, constantly focused
on what is in the best interest of her students. She helps students
to recognize their strengths, and settles for nothing less that [sic]
their best. Parents frequently request Mrs. Abrams because of her
high standards, rigorous curriculum, and the interest that she
takes in the success of each student. Joyce communicates
frequently and effectively with parents and encourages them to
stay involved in their children's education. Colleagues respect
Joyce's intelligence, knowledge, and experience. Joyce works
closely with her shared contract partner to ensure that students
receive a challenging and enriching educational program.
(June 24, 2002, performance evaluation.)
Joyce faces the challenge of collaborating with a grade level team
whose members all have strong opinions. She faces this
challenge with a positive attitude and makes every effort to keep
her partners focused on what's best for the kids. Joyce has
established a warm rapport with staff, students and parents and is
always willing to help others. She communicates frequently and
effectively vvith parents and encourages them to stay involved
with their children's education. Her belief in children's potential
is unmatched.
(May 20, 1998, performance evaluation.)
Mrs. Abrams has an excellent rapport with staff, students and
parents. She will go out of her way to help others and she never
gives up on a child. She believes that all children can and should
experience success and will provide whatever assistance is
needed to achieve that goal. She maintains close communication
with parents to work together with them to provide the best
learning experience possible for their child.
(June 1, 1994, performance evaluation.)
Robyn Kochon (Kochon) was Abrams' 	during the 2007-2008 school year. Kochon
testified that she had a great experience working with Abrams, and considered Abrams to be
13

her mentor. She testified that Abrams was always available and had regular contact with her
both in the classroom and by telephone and e-mail.
Emily Claypool (Claypool) was Abrams' PT in 2000. Claypool testified that Abrams
was friendly, supportive, knowledgeable and available. She considered Abrams to be her
mentor, and a strong advocate for teachers.
Jennifer Ware (Ware) worked with Abrams as a BTSA SP colleague, attending
trainings and meetings with her. For the past four years, Ware served on the BTSA Leadership
Board, which is composed of a handful of teachers who assist the BTSA coordinator with
planning and training. Ware has known Abrams for ten to eleven years, and when asked
directly about Abrams's interpersonal skills, testified that Abrams engages, listens and shares
her opinions and that she has had only positive interactions with her.
The District's Knowledge of Abrams' Protected Activities
Cruz knew of Abrams' union activism. He testified as follows:
You know, frankly, I was, I knew she was involved with the CVE
leadership, but whether she was a board of director or one of the
44 building representatives - they have a lot of positions. I don't
know if she was on the board of directors, but I knew she was
involved, an active member in the Association.
DISCUSSION
The ALJ concluded that the preponderante of the evidence showed that the District had
an unlawful motive in denying Abrams' SP reapplication for the 2008-2009 school year within
the meaning of EERA section 3543.5, subdivision (a). I 	exceptions, the District contends
EERA section 3543.5(a) provides that:
It is unlawful for a public school employer to do any of the following:
a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
14
her mentor. She testified that Abrams was always available and had regular contact with her
both in the classroom and by telephone and e-mail.
Emily Claypool (Claypool) was Abrams' PT in 2000. Claypool testified that Abrams
was friendly, supportive, knowledgeable and available. She considered Abrams to be her
mentor, and a strong advocate for teachers.
Jennifer Ware (Ware) worked with Abrams as a BTSA SP colleague, attending
trainings and meetings with her. For the past four years, Ware served on the BTSA Leadership
Board, which is composed of a handful of teachers who assist the BTSA coordinator with
planning and training. Ware has known Abrams for ten to eleven years, and when asked
directly about Abrams's interpersonal skills, testified that Abrams engages, listens and shares
her opinions and that she has had only positive interactions with her.
The District's Knowledge of Abrams' Protected Activities
Cruz knew of Abrams' union activism. He testified as follows:
You know, frankly, I was, I knew she was involved with the CVE
leadership, but whether she was a board of director or one of the
44 building representatives - they have a lot of positions. I don't
know if she was on the board of directors, but I knew she was
involved, an active member in the Association.
DISCUSSION
The ALJ concluded that the preponderance of the evidence showed that the District had
an unlawful motive in denying Abrams' SP reapplication for the 2008-2009 school year within
the meaning ofEERA section 3543.5, subdivision (a). 8
n itsits exceptions, the District contends
8 EERA section 3543.5(a) provides that:
It is unlawful for a public school employer to do any of the following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
14

that Abrams did not meet her prima facie burden; that the ALJ's proposed decision is not
supported by the evidentiary record; and that the ALJ's proposed remedy is not appropriate.
Prima Facie Case
As stated by the ALJ, to demonstrate that an employer discriminated or retaliated
against an employee in violation of EERA section 3543.5, subdivision (a), a charging party
must show that: (1) the employee exercised rights under EERA; (2) the employer had
knowledge of the employee's exercise of those rights; (3) the employer took adverse action
against the employee; and (4) the employer took the action because of the employee's exercise
of those rights. (Novato Unified School District (1982) PERB Decision 210 (Novato).)
The District does not take issue with the ALJ's conclusions that Abrams' union
activism was protected under EERA or that Abrams' union activism was known to the District.
The thrust of the District's argument regarding the prima facie case is that Abrams failed to
establish the fourth element, i.e., that the District took action against Abrams because of her
union activism." The District asserts that the record evidence does not support the ALJ's
conclusion on this point.
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, 'employee' includes an applicant for
employment or reemployment.
Subsequent to her reapplication for the SP position for the 2008-2009 school year and
retirement, Abrams remained an "employee" within the protections of this statute given her
status as an applicant for reemployment.
" In one of its exceptions, the District asserts that the record evidence does not support
the ALJ's conclusion that the District's denial of Abrams' SP reapplication for the 2008-2009
school year constituted an adverse action. This exception is not grounded in fact or law, and
therefore warrants only the following brief discussion. Abrams' reapplication was denied. As
a result, Abrams did not receive the monetary stipend to which she otherwise would have been
entitled. Under the reasonable person standard used by the Board in determining whether an
employer has taken adverse action against an employee, the denial of Abrams' reapplication
with its attendant loss of pay falls squarely within the ambit of an adverse action. (See,
15
that Abrams did not meet her prima facie burden; that the ALJ' s proposed decision is
not
supported by the evidentiary record; and that the ALJ' s proposed remedy is not appropriate.
Prima Facie Case
As stated by the ALJ, to demonstrate that an employer discriminated or retaliated
against an employee in violation
of
EERA section 3543.5, subdivision (a), a charging party
must show that: (1) the employee exercised rights under EERA; (2) the employer had
knowledge
of
the employee's exercise
of
those rights; (3) the employer took adverse action
against the employee; and (4) the employer took the action because
of
the employee's exercise
of
those rights. (Novato Unified School District (1982) PERB Decision 210 (Novato).)
The District does not take issue with the ALJ's conclusions that Abrams' union
activism was protected under EERA or that Abrams' union activism was known to the District.
The thrust
of
the District's argument regarding the prima facie case is that Abrams failed to
establish the fourth element, i.e., that the District took action against Abrams because
a/her
union activism. 9 The District asserts that the record evidence does not support the ALJ' s
conclusion on this point.
AfthA~r
AVA1"',-.~CIA	
V..L
UJ.V.U
..
VL\...VJ..\.IJ..0\.1
nf'r~rrh+C"
	V.1.
.l.LfS.11.LU
i5U
	l"Tna"a"-·h::.~d	
.!.
1J.L\..t\.,,	
b"
J
th1's	
.1	
cha----t"""	
1-'
.....,1.	
FA~	
VJ.
purposes
of
this subdivision, 'employee' includes an applicant for
employment or reemployment.
Subsequent to her reapplication for the SP position for the 2008-2009 school year and
retirement, Abrams remained an "employee" within the protections of this statute given her
status as an applicant for reemployment.
9 In one of its exceptions, the District asserts that the record evidence does not support
the ALJ's conclusion that the District's denial of Abrams' SP reapplication for the 2008-2009
school year constituted an adverse action. This exception is not grounded in fact or law, and
therefore warrants only the following brief discussion. Abrams' reapplication was denied. 	As
a result, Abrams did not receive the monetary stipend to which she otherwise would have been
entitled. Under the reasonable person standard used by the Board in determining whether an
employer has taken adverse action against an employee, the denial of Abrams' reapplication
with its attendant loss of pay falls squarely within the ambit of an adverse action. (See,
15

The fourth element in the prima facie case is the line or link connecting the adverse
action to the protected activity. (The TM Group, Inc. and Kimberly Grover (2011) 357 NLRB
No. 98.)" It seeks to establish whether the employer acted with an unlawful motive. Motive
may be proven either by direct or circumstantial evidence, or by a combination of both.
Unlawful motive is the specific nexus required in the
establishment of a prima facie case. Direct proof of motivation is
rarely possible since motivation is a state of mind which may be
known only to the actor. Unlawful motive can be established by
circumstantial evidence and inferred from the record as a whole.
(Trustees of the Cal. State Univv. Public Employment Relations Bd. (1992) 6 Cal.App.4th
1 107, 1124 (Trustees of CSU).)
Types of circumstantial evidence probative of unlawful motive, referred to in Board
decisions as the "nexus" factors, include: the timing of the employer's adverse action
(North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento));
the employer's disparate treatment of the employee (State of California (Department of
Transportation) (1984) PERB Decision No. 459-S); the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School
District (1979) PERB Decision No. 104); the employer's inconsistent or contradictory
justification for its actions (State of California (Department of Parks and Recreation) (1983)
PERB Decision No. 328-S); the employer's cursory investigation (City of Torrance (2008)
PERB Decision No. 1971-M); the employer's offering of exaggerated, vague or ambiguous
reasons (McFarland Unified School District (1990) PERB Decision No. 786); employer
Newark Unified School District (1991) PERB Decision No. 864; Palo Verde Unified School
District (1988) PERB Decision No. 689.)
It is appropriate that PERB take guidance from cases decided by the National Labor
Relations Board where, as here, the statutes are sufficiently similar. (Inglewood Teachers
Assn. v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767.)
16
The fourth element in the prima facie case is the line or link connecting the adverse
action to the protected activity. (The TM Group,
Inc.
and Kimberly Grover (2011) 357 NLRB
No. 98.)
10
It seeks to establish whether the employer acted with an unlawful motive. Motive
may be proven either by direct or circumstantial evidence, or by a combination
of
both.
Unlawful motive is the specific nexus required in the
establishment
of
a prima facie case. Direct proof
of
motivation is
rarely possible since motivation is a state
of
mind which may be
known only to the actor. Unlawful motive can be established by
circumstantial evidence and inferred from the record
as
a whole.
(Trustees
of
the Cal. State
Univ.
v.
Public Employment Relations
Bd.
(1992) 6 Cal.App.4 th
1107, 1124 (Trustees
of
CSU).)
Types
of
circumstantial evidence probative
of
unlawful motive, referred to in Board
decisions as the "nexus" factors, include: the timing
of
the employer's adverse action
(North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento));
the employer's disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School
District (1979) PERB Decision No. 104); the employer's inconsistent or contradictory
justification for its actions (State
of
California (Department
of
Parks and Recreation) (1983)
PERB Decision No. 328-S); the employer's cursory investigation (City
of
Torrance (2008)
PERB Decision No. 1971-M); the employer's offering of exaggerated, vague or ambiguous
reasons (McFarland Unified School District (1990) PERB Decision No. 786); employer
Newark Unified School District (1991) PERB Decision No. 864; Palo Verde Unified School
District (1988) PERB Decision No. 689.)
10
It is appropriate that PERB take guidance from cases decided by the National Labor
Relations Board where, as here, the statutes are sufficiently similar. (Inglewood Teachers
Assn.
v.
Public Employment Relations Bd. (1991) 227 Cal.App.3d 767.)
16

animosity toward union activists (Jurupa Community Services District (2007) PERB Decision
No. 1920-M); or any other facts that might demonstrate the employer's unlawful motive
(North Sacramento, supra, PERB Decision No. 264).
The District argues that Abrams failed to present any direct evidence that the District's
action was based on anti-union animus. This is the unusual case in which direct evidence does
exist in the statements made by Cunningham. Notwithstanding these statements, the District's
argument is fundamentally flawed in that the fourth element of the prima facie case may rest
entirely on circumstantial evidence. As the court in Trustees of CSU stated, "[direct proof of
motivation is rarely possible since motivation is a state of mind which may be known only to
the actor." (Trustees of CSU, supra, 6 Cal.App.4" at p. 1124.)
Here, as the ALJ found, there is ample circumstantial evidence of unlawful motive.
Regarding the timing of the adverse action, the District is correct that Abrams had been
involved in her union for a long time without incident. There may not have been a single
triggering event. As the ALJ observed, Abrams continued to serve as a member of CVE's
board of directors until just prior to the denial of her reapplication. It is worth noting that the
first time the District denied a reapplication of Abrams was immediately upon Abrams'
retirement and loss of active union membership and membership on the CVE board of
directors.
Regarding disparate treatment, Abrams was one of 14 re-applicants found by the
Advisory Board not to have satisfied the one-hour per week meeting requirement. The
recommendation of the Advisory Board to the Cabinet was that none of the 14 be renewed."
"The District asserts that Myers' participation in the Advisory Board's evaluation
process negates any possible retaliatory motive given Myers' position as CVE President.
Subsequently, however, Myers recommended that all 14 re-applicants be reinstated
Moreover, the Cabinet, not the Advisory Board, made the decision not to renew Abrams' SP
position. The District also asserts that the selection of other union officers as SP's similarly
17
animosity toward union activists (Jurupa Community Services District (2007) PERB Decision
No. 1920-M); or any other facts that might demonstrate the employer's unlawful motive
(North Sacramento, supra, PERB Decision No. 264).
The District argues that Abrams failed to present any direct evidence that the District's
action was based on anti-union animus. This is the unusual case in which direct evidence does
exist in the statements made by Cunningham. Notwithstanding these statements, the District's
argument is fundamentally flawed in that the fourth element
of
the prima facie case may rest
entirely on circumstantial evidence. As the court in Trustees
of
CSU stated, "[ d]irect
proof
of
motivation is rarely possible since motivation is a state
of
mind which may be known only to
the actor." 	(Trustees
of
CSU, supra, 6 Cal.App.4
th
at
p.
1124.)
Here, as the ALJ found, there is ample circumstantial evidence
of
unlawful motive.
Regarding the timing
of
the adverse action, the District is correct that Abrams had been
involved in her union for a long time without incident. There may not have been a single
triggering event. As the ALJ observed, Abrams continued to serve as a member
of
CVE' s
board
of
directors until just prior to the denial
of
her reappiicatfon. It is worth noting that the
first time the District denied a reapplication
of
Abrams was immediately upon Abrams'
retirement and loss
of
active union membership and membership on the CVE board
of
directors.
Regarding disparate treatment, Abrams was one
of
14
re-applicants found by the
Advisory Board not to have satisfied the one-hour per week meeting requirement. The
recommendation of the Advisory Board to the Cabinet was that none of the 14 be renewed.
11
11
The District asserts that Myers' participation in the Advisory Board's evaluation
process negates any possible retaliatory motive given Myers' position as CVE President.
Subsequently, however, Myers recommended that all 14 re-applicants be reinstated.
Moreover, the Cabinet, not the Advisory Board, made the decision not to renew Abrams' SP
position. The District also asserts that the selection of other union officers as SP' s similarly
17

Even after meeting with Cruz to review the logs, Lebron continued to believe that all 14 had
failed to comply with the meeting requirement. The Cabinet selected 12 for reinstatement, and
singled out two for non-renewal, including Abrams. Neither party developed the record on
the circumstances surrounding the non-renewal of Gascon, nor is it known whether he
actively sought reinstatement, as was the case with Abrams. Whatever the motive for the
District's action regarding Gascon, Abrams was treated differently than 12 other similarly
situated re-applicants.
Regarding departure from established procedures and standards, retired teacher status is
permitted under the BTSA SP Guidelines. When the District posted the Notice, the District
removed this qualification and opened the hiring process to District employees only. The
District's removal of the retired teacher status qualification is inconsistent with both the BTSA
SP Guidelines and the CBA, which provides that the rules established by the Advisory Board
to effectuate the BTSA Induction Program be consistent with the "current BTSA program
design." Given Abrams' newly retired status, the District's action had the specific effect of
disqualifying Abrams from the selection process. In his letter to Abrams of November 24,
2008, Cruz informed Abrams that she was not selected because she "did not meet the Cabinet's
criteria," which included "employment status." Cruz's letter deviates from Lebron's letter of
July 28, 2008, in which Lebron informed the 14 re-applicants that the Advisory Board "has
decided not to renew" their SP positions "based on his/her adherence to set criteria and
guidelines and the needs of the program." Given that the language in Lebron's letter is
identical to the language in section VII(b) of the BTSA SP Guidelines entitled
negates any possible retaliatory motive. The legality of the District's action turns on the
District's motive. While the fact that other union officers have served as SP's may indicate
that the District's anti-union animus is not sweeping in its reach, it does not prove that such
animus did not exist toward Abrams.
18
Even after meeting with Cruz to review the logs, Lebron continued to believe that all 14 had
failed to comply with the meeting requirement. The Cabinet selected 12 for reinstatement, and
singled out two for non-renewal, including Abrams. Neither party developed the record on
the circumstances surrounding the non-renewal of Gascon, nor is it known whether he
actively sought reinstatement, as was the case with Abrams. Whatever the motive for the
District's action regarding Gascon, Abrams was treated differently than 12 other similarly
situated re-applicants.
Regarding departure from established procedures and standards, retired teacher status is
permitted under the BTSA SP Guidelines. When the District posted the Notice, the District
removed this qualification and opened the hiring process to District employees only. The
District's removal of the retired teacher status qualification is inconsistent with both the BTSA
SP Guidelines and the CBA, which provides that the rules established by the Advisory Board
to effectuate the BTSA Induction Program be consistent with the "current BTSA program
design." Given Abrams' newly retired status, the District's action had the specific effect of
disqualifying Abrams from the seiection process. 	In his letter to Abrams of November 24,
2008, Cruz informed Abrams that she was not selected because she "did not meet the Cabinet's
criteria," which included "employment status." Cruz's letter deviates from Lebron's letter of
July 28, 2008, in which Lebron informed the 14 re-applicants that the Advisory Board "has
decided not to renew" their SP positions "based on his/her adherence to set criteria and
guidelines and the needs of the program." Given that the language in Lebron's letter is
identical to the language 	section VII(b) of the BTSA SP Guidelines entitled
negates any possible retaliatory motive. The legality of the District's action turns on the
District's motive. While the fact that other union officers have served as SP's may indicate
that the District's anti-union animus is not sweeping in its reach, it does not prove that such
animus did not exist toward Abrams.
18

"Reapplication," it is reasonable to conclude that the Advisory Board used the established set
of criteria to evaluate the re-applicants and the Cabinet used a new set of criteria when it
denied Abrams' reapplication. The "Cabinet's criteria" matched neither the criteria listed in the
BTSA SP Guidelines nor the criteria listed in the District's own Notice (with the exception of
employment status).
Regarding the offering of exaggerated, vague or ambiguous reasons, as the ALJ
correctly noted, Abrams was at first given no explanation for the denial. Then she was told
that she did not meet three criteria - employment status, success of students and interpersonal
skills. Finally, Cruz testified that the only basis for the denial was Abrams' interpersonal
skills, which the ALJ noted had never been the subject of an investigation or a bad evaluation.
The District argues that it was not required to offer Abrams an explanation. Whether the
District is correct" is not particularly significant given that the District did in fact make such
an offering in this case. The Board must evaluate that offering to determine whether the
reasons given by the District were the true cause of the action taken. There are variations and
weaknesses in the District's offering that raise suspicions as to the District's motive in denying
Abrams' reapplication.
In addition to all of the above circumstantial evidence of unlawful motive, there is also
direct evidence of unlawful motive in the statements made by Cunningham. The District
excepts to the ALJ's finding that Cunningham told Abrams the reason that the District rejected
her was anti-union animus. According to a telephone message left by Cunningham on
Abrams' answering machine and a document memorializing a conversation they had the next
day, Cunningham had talked to Billings and Cruz about Abrams and told Abrams that "he
12 Section VIII of the BTSA SP Guidelines entitled Support Provider Intervention
would appear to suggest otherwise.
19
"Reapplication," it is reasonable to conclude that the Advisory Board used the established set
of criteria to evaluate the re-applicants and the Cabinet used a new set of criteria when it
denied Abrams' reapplication. The "Cabinet's criteria" matched neither the criteria listed in the
BTSA SP Guidelines nor the criteria listed in the District's own Notice (with the exception of
employment status).
Regarding the offering of exaggerated, vague or ambiguous reasons, as the ALJ
correctly noted, Abrams was at first given no explanation for the denial. Then she was told
that she did not meet three criteria - employment status, success of students and interpersonal
skills. Finally, Cruz testified that the only basis for the denial was Abrams' interpersonal
skills, which the ALJ noted had never been the subject of an investigation or a bad evaluation.
The District argues that it was not required to offer Abrams an explanation. Whether the
District is correct12 is not particularly significant given that the District did in fact make such
an offering in this case. 	The Board must evaluate that offering to determine whether the
reasons given by the District were the true cause of the action taken. There are variations and
weaknesses in fhe District's offering that raise suspicions as to the District's motive in denying
Abrams' reapplication.
In addition to all of the above circumstantial evidence of unlawful motive, there is also
direct evidence of unlawful motive in the statements made by Cunningham. The District
excepts to the ALJ's finding that Cunningham told Abrams the reason that the District rejected
her was anti-union animus. According to a telephone message left by Cunningham on
Abrams' answering machine and a document memorializing a conversation they had the next
day, Cunningham had talked to Billings and Cruz about Abrams and told Abrams that "he
12 Section VIII of the BTSA SP Guidelines entitled Support Provider Intervention
would appear to suggest otherwise.
19

thought that it was in reference to my association and activism in the union, CVE." Therefore,
the ALJ's finding is based on record evidence and need not be disturbed.
The District argues that Cunningham's statements are hearsay and, therefore, cannot
support a finding of retaliatory motive. The District fails, however, to address the ALJ's
specific conclusions of law that: (1) Even as inadmissible hearsay, Cunningham's statements
can be used to corroborate the other evidence of retaliation (PERB Reg. 32176);" and (2) as
admissions of a party, Cunningham's statements are admissible as independent evidence of
retaliation (Evidence Code, $ 1220). We find no error in the ALJ's analysis.
The District also argues that the ALJ was wrong to "insinuate" that the District had
decided not to call Cunningham to testify. After leaving the record open to receive testimony
from Cunningham upon the request of Abrams' attorney and the agreement of the parties, the
ALJ received notice that the parties had agreed to close the record. There is no evidence to
support the District's assertion that Abrams decided not to call Cunningham because she
realized that his testimony would not support her case. The ALJ stated:
If Cunningham had been misquoted or misunderstood, the
District could have called him to testify; indeed the record was
left open for that very purpose. But the District did nothing.
We do not agree with the District's characterization of the ALJ's statement as insinuating that
it was the District's decision not to call Cunningham to testify. The ALJ's point, with which
we agree, is that if the record had to be set straight, the District had the opportunity to do so but
chose not to. While the District is correct that Cunningham's statements conveniently serve
Abrams' case, there is no reason as an evidentiary matter to discredit them.
15PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
20
thought that it was in reference to my association and activism in the union, CVE." Therefore,
the ALJ' s finding is based on record evidence and need not be disturbed.
The District argues that Cunningham's statements are hearsay and, therefore, cannot
support a finding of retaliatory motive. The District fails, however, to address the ALJ' s
specific conclusions oflaw that: (1) Even as inadmissible hearsay, Cunningham's statements
can be used to corroborate the other evidence ofretaliation (PERB Reg. 32176); 13 and (2) as
admissions of a party, Cunningham's statements are admissible as independent evidence of
retaliation (Evidence Code, § 1220). We find no error in the ALJ's analysis.
The District also argues that the ALJ was wrong to "insinuate" that the District had
decided not to call Cunningham to testify. After leaving the record open to receive testimony
from Cunningham upon the request of Abrams' attorney and the agreement of the parties, the
ALJ received notice that the parties had agreed to close the record. There is no evidence to
support the District's assertion that Abrams decided not to call Cunningham because she
realized that his testimony ·would not support her case. The ALJ stated:
If Cunningham had been misquoted or misunderstood, the
District could have called him to testify; indeed the record was
left open for that very purpose. But the District did nothing.
We do not agree with the District's characterization of the ALJ's statement as insinuating that
it was the District's decision not to call Cunningham to testify. The ,"'~LJ's point, \Vith which
we agree, is that if the record had to be set straight, the District had the opportunity to do so but
chose not to. While the District is correct that Cunningham's statements conveniently serve
Abrams' case, there is no reason as an evidentiary matter to discredit them.
13 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
20

Based on all of the above, we conclude that Abrams presented a prima facie case of
discrimination. At this point, the burden shifts to the District.
The Affirmative Defense
The District argues that Abrams had the burden of proof at the hearing. The burden of
proof, however, shifts to the employer once the prima facie case is established. Under the
burden-shifting framework, the employer bears the burden of proving it would have taken the
same action even in the absence of the protected activity. (Novato, supra, PERB Decision
No. 210; Martori Bros. Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721,
729-730 (Martori Bros. Distributors); Wright Line, a Division of Wright Line, Inc. (1980) 251
NLRB 1083, 1089; enf'd on other grounds (15 Cir. 1981) 662 F.2d 899, cert. denied (1982)
455 U.S. 989.) Thus, "the question becomes whether the [adverse action] would not have
occurred 'but for' the protected activity." (Martori Bros. Distributors, supra, 29 Cal.3d at
p. 729.) The "but for" test is "an affirmative defense which the employer must establish by a
preponderance of the evidence." (Trustees of CSU, supra, 6 Cal.App.4" at p. 1130 citing
McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 302-304.) When
conducting the "but for" analysis, "PERB weighs the employer's justifications for the adverse
action against the evidence of the employer's retaliatory motive." (Baker Valley Unified
School District (2008) PERB Decision No. 1993.) When evaluating the employer's
justification, the question is whether the justification was "honestly invoked and was in fact the
cause of the action." (The TM Group, Inc. and Kimberly Grover, supra, 357 NLRB No. 98,
citing Framan Mechanical Inc. (2004) 343 NLRB 408.)
The District cites Abrams' interpersonal skills as its justification for the adverse action.
Cruz testified that "Joyce was not a happy positive person in her interactions with the adults."
Cruz explained that his testimony was based on observations made by Cabinet-level
21
Based on all of the above, we conclude that Abrams presented a prima facie case of
discrimination. At this point, the burden shifts to the District.
The Affirmative Defense
The District argues that Abrams had the burden of proof at the hearing. The burden of
proof, however, shifts to the employer once the prima facie case is established. Under the
burden-shifting framework, the employer bears the burden of proving it would have taken the
same action even in the absence of the protected activity. (Novato, supra, PERB Decision
No. 210; Martori Bros. Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721,
729-730 (Martori Bros. Distributors); Wright Line, a Division of Wright Line, Inc. (1980) 251
NLRB 1083, 1089;enf'donothergrounds (l st Cir.1981)662F.2d899,cert. denied(I982)
455 U.S. 989.) Thus, "the question becomes whether the [adverse action] would not have
occurred 'but for' the protected activity." (Martori Bros. Distributors, supra, 29 Cal.3d at
p. 729.) The "but for" test is "an affirmative defense which the employer must establish by a
preponderance of the evidence." (Trustees of CSU, supra, 6 Cal.App.4 th at p. 1130 citing
McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 302-304.) When
conducting the "but for" analysis, "PERB weighs the employer's justifications for the adverse
action against the evidence of the employer's retaliatory motive." (Baker Valley Unified
School District (2008) PERB Decision No. 1993.) When evaluating the employer's
justification, the question is whether the justification was "honestly invoked and was in fact the
cause of the action." (The TM Group, Inc. and Kimberly Grover, supra, 357 NLRB No. 98,
citing Framan Mechanical Inc. (2004) 343 NLRB 408.)
The District cites Abrams' interpersonal skills as its justification for the adverse action.
Cruz testified that "Joyce was not a happy positive person in her interactions with the adults."
Cruz explained that his testimony was based on observations made by Cabinet-level
21

individuals. None of those individuals, however, observed Abrams in the classroom during the
2007-2008 school year. In addition, if deficiencies in Abrams' interpersonal skills had been
discovered in the 2007-2008 school year (or before), Section VIII of the BTSA SP Guidelines
would have required the BTSA director to talk to her and draft an action plan as a first step at
intervention. Under the CBA, the Advisory Board could have taken action to remove Abrams
from her SP position because of her interpersonal skills. If the Advisory Board had done so,
Abrams would have been entitled to a written statement of the reasons for removal prior to the
effective date of removal. There is no evidence the BTSA director ever talked to Abrams
about her interpersonal skills, nor is there any evidence that the BTSA director drafted an
action plan addressing any deficiencies in Abrams' interpersonal skills. Similarly, there was
never an effort made to remove Abrams from her position as an SP because of her
interpersonal skills.
Based on those who interacted with Abrams on a regular basis as PT's, colleagues and
evaluators, Abrams' interpersonal skills appear to be without reproach. Two former PT's and
one SP colleague testified credibly that Abrams' interpersonal skills were not lacking in any
respect. As her colleague, Ware, testified, Abrams engages, listens and shares her opinions.
Ware testified that she has had only positive interactions with her. Abrams was given the
highest mark, "effective," for all evaluation components on Abrams' performance evaluations
including the evaluation component relating to Abrams' interpersonal skills. As consistently
reflected in the comments section under this evaluation component, Abrams had a positive
attitude, excellent rapport with adults and children and all the communication skills necessary
to be an effective educator. While Abrams' performance as an SP was not a component of the
regular performance evaluation, Abrams' performance evaluations nonetheless aid in our
22
individuals. None of those individuals, however, observed Abrams in the classroom during the
2007-2008 school year. In addition, if deficiencies in Abrams' interpersonal skills had been
discovered in the 2007-2008 school year (or before), Section VIII of the BTSA SP Guidelines
would have required the BTSA director to talk to her and draft an action plan as a first step at
intervention. Under the CBA, the Advisory Board could have taken action to remove Abrams
from her SP position because of her interpersonal skills. If the Advisory Board had done so,
Abrams would have been entitled to a written statement of the reasons for removal prior to the
effective date of removal. There is no evidence the BTSA director ever talked to Abrams
about her interpersonal skills, nor is there any evidence that the BTSA director drafted an
action plan addressing any deficiencies in Abrams' interpersonal skills. Similarly, there was
never an effort made to remove Abrams from her position as an SP because of her
interpersonal skills.
Based on those who interacted with Abrams on a regular basis as PT's, colleagues and
evaluators, Abrams' interpersonal skills appear to be without reproach. Two former PT's and
one SP colleague testified credibly that Abrams' interpersonal skins were not lacking in any
respect. As her colleague, Ware, testified, Abrams engages, listens and shares her opinions.
Ware testified that she has had only positive interactions with her. Abrams was given the
highest mark, "effective," for all evaluation components on Abrams' performance evaluations
including the evaluation component relating to Abrams' interpersonal skills. As consistently
reflected in the comments section under this evaluation component, Abrams had a positive
attitude, excellent rapport with adults and children and all the communication skills necessary
to be an effective educator. While Abrams' performance as an SP was not a component of the
regular performance evaluation, Abrams' performance evaluations nonetheless aid in our
22

evaluation of the District's proffered reason for denying Abrams' reapplication. Based on all
of the above, the District's proffered reason cannot be credited.
Weighing the District' justification for the adverse action against both the
circumstantial and direct evidence of the District's retaliatory motive, we cannot reconcile any
other result than the one reached by the ALJ.
The Remedy
The District excepts to every facet of the ALJ's remedy - the cease and desist order, the
order requiring rescission and destruction of the letters denying Abrams' reapplication, the
reinstatement order, the backpay with interest order and the order requiring the posting of a
notice. The ALJ's remedy is designed as a typical make-whole remedy authorized under
EERA section 3541.5, subdivision (c), which provides:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited to the reinstatement of employees with or without back
pay, as will effectuate the policies of this chapter.
The District raises a concern regarding the indefiniteness of the reinstatement order.
Because SP's serve a one-year term renewable on a year-to-year basis, the District contends
that the reinstatement order should not be construed as permanent. While the District is correct
on that point, the limited term nature of the SP position raises a larger concern relating to the
reinstatement order.
The number of SP's selected for any given year is dependent on the number of PT's in
the BTSA Induction Program. An order requiring that Abrams be reinstated for the current
2011-2012 school year is unfeasible, as we can safely assume that PT's currently in the BTSA
Induction Program have already been placed with their respective SP's. Consequently, in lieu
of reinstatement, we find that Abrams is entitled to back pay through the current term in order
23
evaluation of the District's proffered reason for denying Abrams' reapplication. Based on all
of the above, the District's proffered reason cannot be credited.
Weighing the District' justification for the adverse action against both the
circumstantial and direct evidence of the District's retaliatory motive, we cannot reconcile any
other result than the one reached by the ALJ.
The Remedy
The District excepts to every facet of the ALJ's remedy- the cease and desist order, the
order requiring rescission and destruction of the letters denying Abrams' reapplication, the
reinstatement order, the backpay with interest order and the order requiring the posting of a
notice. The ALJ's remedy is designed as a typical make-whole remedy authorized under
EERA section 3541.5, subdivision (c), which provides:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited to the reinstatement of employees with or without back
pay, as will effectuate the policies of this chapter.
The District raises a concern regarding the indefiniteness of the reinstatement order.
Because SP's serve a one-year term renewable on a year-to-year basis, the District contends
that the reinstatement order should not be construed as permanent. While the District is correct
on that point, the limited term nature of the SP position raises a larger concern relating to the
reinstatement order.
The number of SP's selected for any given year is dependent on the number of PT's in
the BTSA Induction Program. 	order requiring that Abrams be reinstated for the current
2011-2012 school year is unfeasible, as we can safely assume that PT's currently in the BTSA
Induction Program have already been placed with their respective SP's. Consequently, in lieu
of reinstatement, we find that Abrams is entitled to back pay through the current term in order
23

to make Abrams whole for the unlawful retaliatory action taken against her by the District. For
the 2012-2013 school year, however, renewal of Abrams' SP position will be subject to the
application/reapplication process, meeting the current qualifications for the position, the needs
of the BTSA Induction Program and whatever other requirements or considerations as would
apply to all applicants/re-applicants.
Although the SP position is renewable on a year-to-year basis, we find that the back
pay order should not be limited to the 2008-2009 school year. Abrams served as an SP for
eight consecutive years and there is every indication she intended to serve well into her
retirement. She testified at the hearing in pertinent part:
Yes, I chose Chula Vista very carefully to teach in because it
represented, and actually still does, what I believe in, in
education, offering modern, up-to-date technique in teaching kids
and celebrating learning. I loved every year I taught, and still
hav
to. I loved being a teacher every moment of every day. And one
of the reasons that I wanted to continue being a BTSA
support provider, it would give me that continuation of
teaching new teachers that love of learning and love of
teaching kids to want to be life-long learners.
(Emphasis supplied.)
Given Abrams' uninterrupted past service as an SP and her stated intention to continue
to serve into her retirement years, we find that were it not for the District's violation of EERA
in regards to the 2008-2009 school year, Abrams would have continued to reapply and been
selected to serve. The Board has awarded back pay in similar circumstances where the
evidence showed that, but for the unlawful discrimination, the employer would have contacted
the employee for successive limited term positions. (Los Gatos Joint Union High School
District (1980) PERB Decision No. 120.) Therefore, given the Board's broad remedial
powers (Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989)
210 Cal.App.3d 178) and statutory directive under EERA section 3541.5, subdivision (c), the
24
to make Abrams whole for the unlawful retaliatory action taken against her by the District. 	For
the 2012-2013 school year, however, renewal
of
Abrams' SP position will be subject to the
application/reapplication process, meeting the current qualifications for the position, the needs
of
the BTSA Induction Program and whatever other requirements or considerations
as
would
apply to all applicants/ie-applicants.
Although the
SP
position is renewable on a year-to-year basis, we find that the back
pay order should not be limited to the 2008-2009 school year. Abrams served as an SP for
eight consecutive years and there is every indication she intended to serve well into her
retirement. She testified at the hearing in pertinent part:
Yes, I chose Chula Vista very carefully to teach in because it
represented, and actually still does, what I believe in, in
education, offering modern, up-to-date technique in teaching kids
and celebrating learning. I loved every year I taught, and still
have - many
of
my associations are with people I taught with and	e - many of my associations are with people I taught with and
to. I loved being a teacher every moment
of
every day. And one
of
the reasons that I wanted to continue being a BTSA
support provider, it would give me that continuation
of
teaching new teachers that love
of
learning and love
of
teaching kids to want to be life-long learners.
(Emphasis supplied.)
Given Abrams' uninterrupted past service as an SP and her stated intention to continue
to serve into her retirement years, we find that were it not for the District's violation
of
EERA
in regards to the 2008-2009 school year, Abrams would have continued to reapply and been
selected to serve. The Board has awarded back pay in similar circumstances where the
evidence showed that, but for the unlawful discrimination, the employer would have contacted
the employee for successive limited term positions. (Los Gatos Joint Union High School
District (1980) PERB Decision No. 120.) Therefore, given the Board's broad remedial
powers (Mt. San Antonio Community College Dist.
v.
Public Employment Relations Bd. (1989)
210 Cal.App.3d 178) and statutory directive under EERA section 3541.5, subdivision (c), the
24

Board finds that back pay through the current term is warranted as just and proper under the
unique circumstances of this case. (Id. at p. 190 ["a back pay award is a reparation order
designed to restore the status quo which would have prevailed but for the wrongful act"].) 14
The Timeliness of Abrams' Response to the Exceptions
Although the proof of service of the District's statement of exceptions indicates that the
statement of exceptions was served by facsimile transmission and by mail on March 7, 2011,
Abrams' attorney asserts that she did not receive the statement of exceptions by facsimile and
therefore calculated the deadline for filing the response based on rules applicable whenever a
document is served by mail. Based on the documentation she submitted including her own
declaration, a declaration from her secretary and a copy of the facsimile transmission log, we
find that Abrams' attorney was justified in so doing.
Under PERB Regulation 32310, a response to a statement of exceptions must be filed
within 20 days following the date of service. In this case, the 20" day fell on Sunday,
March 27, 2011. There are two potentially applicable filing extensions relevant here. A five-
day extension applies to any filing made in response to a document served by mail (PERB
Reg. 32130, subd. (c)) (5-day extension) and an extension to the next regular PERB business
day applies whenever the last day to file a document falls on a weekend or holiday (PERB
Reg. 32130, subd. (b)) (weekend extension). The former extension shall be applied before the
latter extension. (Ibid.) Applying the 5-day extension first, as required, the last day in which
to file the response was Friday, April 1, 2011. Abrams' attorney, however, filed the response
The Board recognizes that the remedy in this case reflects, in part, the length of time
this case was pending before the ALJ and on appeal to the Board prior to issuance of the
Board's decision. In cases such as this, in which a respondent invokes the Board's processes
by electing to go to hearing following issuance of a complaint by the General Counsel and files
exceptions to the ALJ's proposed decision, it runs the risk that exhaustion of the Board's
administrative procedures will increase its liability in the event its appeal is unsuccessful.
25
Board finds that back pay through the current term is warranted as just and proper under the
unique circumstances of this case. (Id. at p. 190 ["a back pay award is a reparation order
designed to restore the status quo which would have prevailed but for the wrongful act"].) 14
The Timeliness of Abrams' Response to the Exceptions
Although the proof of service of the District's statement of exceptions indicates that the
statement of exceptions was served by facsimile transmission and by mail on March 7, 2011,
Abrams' attorney asserts that she did not receive the statement of exceptions by facsimile and
therefore calculated the deadline for filing the response based on rules applicable whenever a
document is served by mail. Based on the documentation she submitted including her own
declaration, a declaration from her secretary and a copy of the facsimile transmission log, we
find that Abrams' attorney was justified in so doing.
Under PERB Regulation 32310, a response to a statement of exceptions must be filed
within 20 days following the date of service. In this case, the 20 th day fell on Sunday,
March 27, 2011. There are two potentially applicable filing extensions relevant here. A five-
day extension applies to any filing made in response to a document served by mail (PERB
Reg. 32130, subd. (c)) (5-day extension) and an extension to the next regular PERB business
day applies whenever the last day to file a document falls on a weekend or holiday (PERB
Reg. 32130, subd. (b)) (weekend extension). The former extension shall be applied before the
latter extension. (Ibid.) Applying the 5-day extension first, as required, the last day in which
to file the response was Friday, April 1, 2011. Abrams' attorney, however, filed the response
14 The Board recognizes that the remedy in this case reflects, in part, the length of time
this case was pending before the ALJ and on appeal to the Board prior to issuance of the
Board's decision. In cases such as this, in which a respondent invokes the Board's processes
by electing to go to hearing following issuance of a complaint by the General Counsel and files
exceptions to the ALJ's proposed decision, it runs the risk that exhaustion of the Board's
administrative procedures will increase its liability in the event its appeal is unsuccessful.
25

on Monday, April 4, 2011 presumably because she incorrectly applied the two extensions
discussed above. Therefore, the response is untimely.
PERB Regulation 32136 provides:
A late filing may be excused in the discretion of the Board for
good cause only. A late filing which has been excused becomes a
timely filing under these regulations.
The Board has found good cause when a party makes a conscientious effort to timely
file and the late filing was caused by circumstances beyond the party's control, such as a
mailing or clerical error. (United Teachers of Los Angeles (Kestin) (2003) PERB Order
No. Ad-325.) If the reason for the untimely filing is "reasonable and credible," the Board
evaluates whether the opposing party would suffer any prejudice as a result of the excused late
filing. (Barstow Unified School District (1996) PERB Order No. Ad-277.)
Under the unique circumstances of this case, in the exercise of the Board's discretion,
we find that there is good cause to excuse the late filing. Abrams' attorney made an honest
mistake, as a result of which she was off by one day in calculating the last day to file the
response. As there is no prejudice to the District, the late filing is excused and is deemed
timely filed under PERB Regulation 32136.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Chula Vista Elementary School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3540 et seq., by
retaliating against Joyce Singer Abrams (Abrams) for her union activity.
Pursuant to EERA section 3541.5(c), it hereby is ORDERED that the District, its
governing board and its representatives shall:
26
on Monday, April 4, 2011 presumably because she incorrectly applied the two extensions
discussed above. Therefore, the response is untimely.
26
PERB Regulation 32136 provides:
A late filing may be excused in the discretion
of
the Board for
good cause only. A late filing which has been excused becomes a
timely filing under these regulations.
The Board has found good cause when a party makes a conscientious effort to timely
file and the late filing was caused by circumstances beyond the party's control, such as a
mailing or clerical error. (United Teachers
of
Los Angeles (Kestin) (2003) PERB Order
No. Ad-325.)
If
the reason for the untimely filing is "reasonable and credible," the Board
evaluates whether the opposing party would suffer any prejudice
as
a result
of
the excused late
filing. 	(Barstow Unified School District (1996) PERB Order No. Ad-277.)
Under the unique circumstances
of
this case, in the exercise
of
the Board's discretion,
we find that there is good cause to excuse the late filing. 	Abrams' attorney made an honest
mistake, as a result
of
which she was off by one day in calculating the last day to file the
response. As there is no prejudice to the District, the late filing is excused and is deemed
timely filed under PERB Regulation 32136.
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the Chula Vista Elementary School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3540 et seq., by
retaliating against Joyce Singer Abrams (Abrams) for her union activity.
Pursuant to EERA section 3541.S(c), it hereby is ORDERED that the District, its
governing board and its representatives shall:

A. 	CEASE AND DESIST FROM:
Retaliating against Abrams for her union activity.
TAKE THE FOLL WING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
Rescind and destroy the letters dated September 17 and November 24,
2008, denying Abrams' reapplication to be a support provider.
2 . 	Pay Abrams back pay with interest at the rate of 7 percent per annum
covering the school years 2008-2009, 2009-2010, 2010-2011 and 2011-2012.
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the District customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered,
defaced or covered with any other material.
4 . 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board or the General
Counsel's designee. The District shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on Abrams.
Members Mckeag and Dowdin Calvillo join in this Decision.
27
A. 	CEASE AND DESIST FROM:
Retaliating against Abrams for her union activity.
B.	B. 	TAKE THE FOLL WING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
I.	1 . 	Rescind and destroy the letters dated September 17 and November 24,
2008, denying Abrams' reapplication to be a support provider.
2. 	Pay Abrams back pay with interest at the rate of 7 percent per annum
covering the school years 2008-2009, 2009-2010, 2010-2011 and 2011-2012.
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the District customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered,
defaced or covered with any other material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board or the General
Counsel's designee. The District shall provide reports, 	writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on Abrams.
27
Members McKeag and Dowdin Calvillo join in this Decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYEMT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5289-E, Joyce Singer Abrams v.
Chula Vista Elementary School District, in which all parties had the right to participate, it has
been found that the Chula Vista Elementary School District violated the Educational
Employment Relations Act (EERA), Government Code section 3540 et seq., by denying the
reapplication of Joyce Singer Abrams (Abrams) to be a support provider, because of her union
activity.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Retaliating against Abrams because of her union activity.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
Rescind and destroy the letters dated September 17 and November 24,
2008, denying Abrams' reapplication to be a support provider.
2. 	Pay Abrams back pay with interest at the rate of 7 percent per annum
covering the school years 2008-2009, 2009-2010, 2010-2011 and 2011-2012
Dated: 	CHULA VISTA ELEMENTARY SCHOOL
DISTRICT
By:
Authorized Agent
THIS IS AN OFFICAL NOTICE. IT MUST REMAIN POSTED FOR ATA LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYEMT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5289-E, Joyce Singer Abrams v.
Chula Vista Elementary School District, in which all parties had the right to participate, it has
been found that the Chula Vista Elementary School District violated the Educational
Employment Relations Act (EERA), Government Code section 3540 et seq., by denying the
reapplication of Joyce Singer Abrams (Abrams) to be a support provider, because of her union
activity.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Retaliating against Abrams because of her union activity.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
I.	1 . 	Rescind and destroy the letters dated September 17 and November 24,
2008, denying Abrams' reapplication to be a support provider.
2. 	Pay Abrams back pay with interest at the rate of 7 percent per annum
covering the school years 2008-2009, 2009-2010, 2010-2011 and 2011-2012.
Dated: --------- CHULA VISTA ELEMENTARY SCHOOOL
DISTRICT
By: -------------
Authorized Agent
THIS IS AN OFFICAL NOTICE. IT MUST REMAIN POSTED FOR ATA LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIAIA
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
JOYCE SINGER ABRAMS,
UNFAIR PRACTICE
Charging Party, 	CASE NO. LA-CE-5289-E
v . 	PROPOSED DECISION
(February 15, 2011)
CHULA VISTA ELEMENTARY SCHOOL
DISTRICT,
Respondent.
Appearances: California Teachers Association by Brenda Sutton-Wills, Staff Counsel, for
Joyce Singer Abrams; Fagen Friedman & Fulfrost by Susan B. Winkelman, Attorney, for
Chula Vista Elementary School District.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union board member alleges that a school district retaliated against her,
in violation of the Educational Employment Relations Act (EERA).' The district denies any
violation.
Joyce Singer Abrams (Abrams) filed an unfair practice charge against the Chula Vista
Elementary School District (District) on January 21, 2009. The Office of the General Counsel
of the Public Employment Relations Board (PERB) issued a complaint against the District on
March 23, 2009. The District filed an answer on April 13, 2009.
PERB held an informal settlement conference on April 24, 2009, but the case was not
settled. PERB held a formal hearing on December 16 and 17, 2009. The record was left open
until February 11, 2010, but no further evidence was offered. With the receipt of post-hearing
briefs on March 15, 2010, the case was submitted for decision.
EERA is codified at Government Code section 3540 et seq.
STATE OF CALIFORN
JOYCE SINGER ABRAMS,
Charging Party,
V.
CHULA VISTA ELEMENTARY SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5289-E
PROPOSED DECISION
(February 15, 2011)
Appearances: 	California Teachers Association by Brenda Sutton-Wills, Staff Counsel, for
Joyce Singer Abrams; Fagen Friedman & Fulfrost by Susan B. Winkelman, Attorney, for
Chula Vista Elementary School District.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union board member alleges that a school district retaliated against her,
in violation of the Educational Employment Relations Act (EERA). 1 The district denies any
violation.
Joyce Singer Abrams (Abrams) filed an unfair practice charge against the Chula Vista
Elementary School District (District) on January 21, 2009. The Office of the General Counsel
of the Public Employment Relations Board (PERB) issued a complaint against the District on
March 23, 2009. The District filed an answer on April 13, 2009.
PERB held an informal settlement conference on April 24, 2009, but the case was not
settled. PERB held a formal hearing on December 16 and 17, 2009. The record was left open
until February 11, 2010, but no further evidence was offered. With the receipt of post-hearing
briefs on March 15, 2010, the case was submitted for decision.
1 EERA is codified at Government Code section 3540 et seq.

FINDINGS OF FACT
The District is a public school employer under EERA. Abrams was an employee under
EERA, and she was a member of the board of directors of Chula Vista Educators (CVE), an
employee organization and exclusive representative.
In the spring of 2008, Abrams reapplied to be a support provider for the District's
Beginning Teacher Support and Assessment (BTSA) program. At the time, Abrams had been
a support provider for almost eight years, and a teacher for almost 39 years. She retired as a
teacher on June 14, 2008, but under District guidelines she was still qualified to be a support
provider.
On September 17, 2008, District Assistant Superintendent Thomas Cruz (Cruz) sent
Abrams a letter informing her, without explanation, that she was not selected to serve as a
support provider for the 2008-09 school year. Abrams contacted members of the District's
Board of Education, among others, for an explanation. On November 10, 2008, District board
member Larry Cunningham (Cunningham) left her a phone message stating:
I talked to Lowell and Tom [Cruz] and it really gets down to the
point that they just wanted to go in a different direction. I mean,
they felt that you've always been very negative about what the
district did and where they were going and what direction they
were going in. So, they just felt that they wanted to go in a
different direction and that's what they told me about it. So, if
you want to discuss it further, give me a call. Anyway, that's
what I got from it.
"Lowell" was District Superintendent Lowell Billings, who did not testify at the PERB
hearing.
On November 12, 2008, Abrams called Cunningham. She asked Cunningham to
"explain [the reference to] negativity," and he told her he "thought it was in reference to [her]
association and [her] activism with the Union." Cunningham did not testify at the PERB
22
FINDINGS OF FACT
The District is a public school employer under EERA. Abrams was an employee under
EERA, and she was a member of the board of directors of Chula Vista Educators (CVE), an
employee organization and exclusive representative.
In the spring of 2008, Abrams reapplied to be a support provider for the District's
Beginning Teacher Support and Assessment (BTSA) program. At the time, Abrams had been
a support provider for almost eight years, and a teacher for almost 39 years. 	She retired as a
teacher on June 14, 2008, but under District guidelines she was still qualified to be a support
provider.
On September 17, 2008, District Assistant Superintendent Thomas Cruz (Cruz) sent
Abrams a letter informing her, without explanation, that she was not selected to serve as a
support provider for the 2008-09 school year. Abrams contacted members of the District's
Board of Education, among others, for an explanation. On November 10, 2008, District board
member Larry Cunningham (Cunningham) left her a phone message stating:
I talked to Lowell and Tom [Cruz] and it really gets down to the
point that they just wanted to go in a different direction. 	I mean,
they felt that you've always been very negative about what the
district did and where they were going and what direction they
were going in. So, they just felt that they wanted to go in a
different direction and that's what they told me about it. 	So,
you want to discuss it further, give me a call. Anyway, that's
what I got from it.
"Lowell" was District Superintendent Lowell Billings, who did not testify at the PERB
hearing.
On November 12, 2008, Abrams called Cunningham. She asked Cunningham to
"explain [the reference to] negativity," and he told her he "thought it was in reference to [her]
association and [her] activism with the Union." Cunningham did not testify at the PERB

hearing, but the record was left open for the specific purpose of receiving his testimony in
some form. Eight weeks after the hearing, on February 11, 2010, the undersigned received
notice that the parties had agreed to close the record without further evidence.
On November 24, 2008, Cruz sent Abrams a letter stating in part:
The decision for approving BTSA Support Providers for the
2008-09 school year was made by Cabinet. Cabinet is comprised
of the Superintendent, Assistant Superintendents, and the
Executive Directors. Cabinet unanimously selected this year's
participants based on their employment status, the success of
students in their classroom, and their strong interpersonal skills.
You were not selected because you did not meet the Cabinet's
criteria.
Cruz testified that Abrams was not selected "because there were concerns about her
interpersonal skills."
Cruz further testified that Cabinet members had raised concerns about Abrams'
"positive nature on matters" and "her outlook and support of the District." He later explained:
As far as, and I'm using global generalizations, she didn't seem
to be happy or content with the School District, critical about the
District about management this, or principal this, or teachers this.
It just seemed that Joyce was not a happy positive person in her
interactions with the adults.
Cruz also testified that he knew Abrams was "involved with the CVE leadership," but the
Cabinet did not discuss that fact. Cruz was the only Cabinet member to testify at the PERB
hearing.
As a teacher, Abrams had been evaluated every two years in various areas, including
"professional relationships with students, parents [and] colleagues." Since at least 1998,
Abrams had received the highest possible rating ("effective") in this area. The comments on
her 2002 evaluation are representative:
Mrs. Abrams has earned the respect of students, parents, and
colleagues. She is a staunch child advocate, constantly focused
3
hearing, but the record was left open for the specific purpose
of
receiving his testimony in
some form. 	Eight weeks after the hearing, on February 11, 2010, the undersigned received
notice that the parties had agreed to close the record without further evidence.
On November 24, 2008, Cruz sent Abrams a letter stating in part:
The decision for approving BTSA Support Providers for the
2008-09 school year was made by Cabinet. Cabinet is comprised
of
the Superintendent, Assistant Superintendents, and the
Executive Directors. Cabinet unanimously selected this year's
participants based on their employment status, the success
of
students in their classroom, and their strong interpersonal skills.
You were not selected because you did not meet the Cabinet's
criteria.
Cruz testified that Abrams was not selected "because there were concerns about her
interpersonal skills."
Cruz further testified that Cabinet members had raised concerns about Abrams'
"positive nature on matters" and "her outlook and support
of
the District." He later explained:
As far as, and
I'm
using global generalizations, she didn't seem
to be happy or content with the School District, critical about the
District about management this, or principal this, or teachers this.
It just seemed that Joyce was not a happy positive person in her
interactions with the adults.
Cruz also testified that he knew Abrams was "involved with the CVE leadership," but the
Cabinet did not discuss that fact. 	Cruz was the only Cabinet member to testify at the PERB
hearing.
As a teacher, Abrams had been evaluated every two years in various areas, including
"professional relationships with students, parents [and] colleagues." Since at least 1998,
Abrams had received the highest possible rating ("effective") in this area. The comments on
her 2002 evaluation are representative:
Mrs. Abrams has earned the respect of students, parents, and
colleagues. She is a staunch child advocate, constantly focused
3

on what is in the best interest of her students. She helps students
to recognize their strengths, and settles for nothing less [than]
their best. Parents frequently request Mrs. Abrams because of her
high standards, rigorous curriculum, and the interest that she
takes in the success of each student. Joyce communicates
frequently and effectively with parents and encourages them to
stay involved in their children's education. Colleagues respect
Joyce's intelligence, knowledge, and experience. Joyce works
closely with her shared contract partner to ensure that students
receive a challenging and enriching educational program.
One of Abrams' former BTSA teachers testified that Abrams had been "very helpful."
Another testified that Abrams was friendly, supportive and "a strong advocate for teachers." A
former colleague testified that Abrams was "a very direct person," with whom she "only had
positive interactions." There was no evidence of any negative interactions, or of any District
investigation of Abrams' interactions.
Abrams was one of only two support providers whose reapplications were denied by the
District. She was one of 14 that the District's BTSA advisory board had not recommended,
because they had not logged enough hours with their BTSA teachers. The Cabinet did not
deny any reapplications on that basis, however.
ISSUE
Did the District retaliate against Abrams?
CONCLUSIONS OF LAW
EERA section 3543.5 states in part:
It is unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
on what is in the best interest of her students. She helps students
to recognize their strengths, and settles for nothing less [than]
their best. Parents frequently request Mrs. Abrams because of her
high standards, rigorous curriculum, and the interest that she
takes in the success of each student. Joyce communicates
frequently and effectively with parents and encourages them to
stay involved in their children's education. Colleagues respect
Joyce's intelligence, knowledge, and experience. Joyce works
closely with her shared contract partner to ensure that students
receive a challenging and enriching educational program.
One of Abrams' former BTSA teachers testified that Abrams had been "very helpful."
Another testified that Abrams was friendly, supportive and "a strong advocate for teachers." A
former colleague testified that Abrams was "a very direct person," with whom she "only had
positive interactions." There was no evidence of any negative interactions, or of any District
investigation of Abrams' interactions.
Abrams was one of only two support providers whose reapplications were denied by the
District. 	She was one of 14 that the District's BTSA advisory board had not recommended,
because they had not logged enough hours with their BTSA teachers. The Cabinet did not
deny any reapplications on that basis, however.
ISSUE
Did the District retaliate against Abrams?
CONCLUSIONS OF LAW
EERA section 3543.5 states in part:
It is unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
4

For purposes of this subdivision, Abrams remained an "employee" even after her retirement as
a teacher, because she was an applicant for reemployment as a support provider.
To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5(a), a charging party must show that: (1) the employee
exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights;
(3) the employer took adverse action against the employee; and (4) the employer took the
action because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato).)
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;
Campbell Municipal Employees Assn. v. City of Campbell (1982) 131
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104; San Leandro
Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553 (San Leandro)); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (198 	Decision No. 328-S; San Leandro, supra,
55 Cal.App.3d 553); (4) the employer's cursory investigation of the employee's misconduct
(City of Torrance (2008) PERB Decision No. 1971-M; Coast Community College District
(2003) PERB Decision No. 1560); (5) the employer's failure to offer the employee justification
For purposes of this subdivision, Abrams remained an "employee" even after her retirement as
a teacher, because she was an applicant for reemployment as a support provider.
To demonstrate that an employer discriminated or retaliated against an employee in
violation ofEERA section 3543.5(a), a charging party must show that: 	(1) the employee
exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights;
(3) the employer took adverse action against the employee; and (4) the employer took the
action because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato).)
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;
Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416); (2) the	Cal.App.3d 416); (2) the
employer's departure from established procedures and standards when dealing with the
==•~1~"=e 10 ~n,~ 177a1·a T Tnz'-{';zed	tr,; 	Snhool Dz'strz'ct (1979) PERB D=c1's1·r'1~ l\ Tr. 	1	\...,1111.--' vyi...,, 	\UU 	U 	• 	(\/1. C"r,v,	tlU L,t 	l, t 	V 	V.l.1 1"4v 	.1.v1, 1-.)u,1, ..LJC.,U,ll,f./l,I	T Of<MrlvnV
Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553 (San Leandro)); (3) the·
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) 	Decision No. 328-S; San Leandro, supra,3) PERB
55 Cal.App.3d 553); (4) the employer's cursory investigation of the employee's misconduct
(City of Torrance (2008) PERB Decision No. 1971-M; Coast Community College District
(2003) PERB Decision No. 1560); (5) the employer's failure to offer the employee justification
5

at the time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or
the offering of exaggerated, vague, or ambiguous reasons (Mcfarland Unified School District
(1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (North Sacramento School District, supra,
PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
In the present case, Abrams exercised her rights under EERA as a leader of CVE. As
acknowledged by Assistant Superintendent Cruz, the District knew about Abrams' union
activity. The District took adverse action against Abrams by denying her reapplication to be a
BTSA support provider.
There is ample circumstantial evidence that the District denied Abrams' reapplication
because of her union activity. The denial followed her service as a member of the CVE board
of directors. She was one of only two support providers whose reapplications were denied.
Cruz's letter to Abrams of September 17, 2008, gave no explanation for the denial. Later,
Cruz's letter of November 24, 2008, explained that Abrams did not meet three vaguely
described criteria ("employment status," "success of students" and "interpersonal skills"). Still
later, Cruz testified only that there were concerns about Abrams' "interpersonal skills," which
had never been the subject of an investigation or a bad evaluation.
Cruz specifically testified about concerns regarding Abrams' "support of the District,"
and that she was "critical about the District about management this, or principal this, or
teachers this." It is not always a union leader's job, however, to support the employer. It is
sometimes a union leader's job to be critical of management.
at the time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or
the offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (North Sacramento School District, supra,
PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
In the present case, Abrams exercised her rights under EERA as a leader of CVE. 	As
acknowledged by Assistant Superintendent Cruz, the District knew about Abrams' union
activity. The District took adverse action against Abrams by denying her reapplication to be a
BTSA support provider.
There is ample circumstantial evidence that the District denied Abrams' reapplication
because of her union activity. The denial followed her service as a member of the CVE board
of directors. 	She was one of only two support providers whose reapplications were denied.
Cruz's letter to Abrams of September 17, 2008, gave no explanation for the denial. Later,
Cruz's letter of November 24, 2008, explained that Abrams did not meet three vaguely
described criteria ("employment status," "success of students" and "interpersonal skills"). 	Still
later, Cruz testified only that there were concerns about Abrams' "interpersonal skills," which
had never been the subject of an investigation or a bad evaluation.
Cruz specifically testified about concerns regarding Abrams' "support of the District,"
and that she was "critical about the District about management this, or principal this, or
teachers this." It is not always a union leader's job, however, to support the employer. 	It is
sometimes a union leader's job to be critical of management.
6

On top of all this, Abrams testified without contradiction that District board member
Cunningham, explaining the District's denial of her reapplication, told her that the District
found her "very negative," and he thought "it was in reference to [her] association and [her]
activism with the Union." If Cunningham had been misquoted or misunderstood, the District
could have called him to testify; indeed, the record was left open for that very purpose. But the
District did nothing.
Even as hearsay, Cunningham's statements to Abrams were admissible to corroborate
the other evidence of retaliation. (PERB Reg. 32176.) Furthermore, as admissions of a party,
the statements are also admissible as independent evidence of retaliation. (Evidence Code,
$ 1220.)
In short, the preponderante of evidence shows that the District denied Abrams'
reapplication to be a support provider because of her union activity, and for no other reason.
The District is therefore found to have retaliated against Abrams in violation of EERA
section 3543.5(a), as alleged in the PERB complaint.
REMEDY
EERA section 3541.5(c) states:
The board [PERB] shall have the power to issue a decision and
order directing an offending party to cease and desist from the
unfair practice and to take such affirmative action, including but
not limited to the reinstatement of employees with or without
back pay, as will effectuate the policies of this chapter.
In the present case, the District has violated EERA by denying Abrams' reapplication to be a
support provider in retaliation for her union activity. It is therefore appropriate to order the
District to cease and desist from such retaliation against Abrams and other employees, to
ERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
On top
of
all this, Abrams testified without contradiction that District board member
Cunningham, explaining the District's denial
of
her reapplication, told her that the District
found her "very negative," and he thought "it was in reference to [her] association and [her]
activism with the Union." If Cunningham had been misquoted or misunderstood, the District
could have called him to testify; indeed, the record was left open for that very purpose. 	But the
District did nothing.
Even as hearsay, Cunningham's statements to Abrams were admissible to corroborate
the other evidence ofretaliation. (PERB Reg. 32176.)2 Furthermore, as admissions
of
a party,
the statements are also admissible as independent evidence
of
retaliation. (Evidence Code,
§ 1220.)
In short, the preponderance
of
evidence shows that the District denied Abrams'
reapplication to be a support provider because
of
her union activity, and for no other reason.
The District is therefore found to have retaliated against Abrams in violation
of
EERA
section 3543.S(a), as alleged in the PERB complaint.
REMEDY
EERA section 3541.S(c) states:
The board [PERB] shall have the power to issue a decision and
order directing an offending party to cease and desist from the
unfair practice and to take such affirmative action, including but
not limited to the reinstatement
of
employees with or without
back pay, as will effectuate the policies
of
this chapter.
In the present case, the District has violated EERA by denying Abrams' reapplication to be a
support provider in retaliation for her union activity. It is therefore appropriate to order the
District to cease and desist from such retaliation against Abrams and other employees, to
PPERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
7

rescind and destroy the letters denying Abrams' reapplication, to reinstate Abrams, and to pay
Abrams back pay with interest. It is also appropriate to order the District to post a notice
incorporating the terms of the order. (Placerville Union School District (1978) PERB Decision
No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Chula Vista Elementary School District (District) violated the
Educational Employment Relations Act (Act), Government Code section 3540 et seq., by
retaliating against Joyce Singer Abrams (Abrams) for her union activity.
Pursuant to section 3541.5(c) of the Government Code, it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Retaliating against Abrams and other employees for their union activity.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1 . 	Rescind and destroy the letters dated September 17 and November 24,
2008, denying Abrams' reapplication to be a support provider.
Pay Abrams backpay with interest at the rate of 7 percent per annum
until she is reinstated or refuses reinstatement.
4. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the District customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that it will comply with the terms of this Order.
rescind and destroy the letters denying Abrams' reapplication, to reinstate Abrams, and to pay
Abrams back pay with interest. It is also appropriate to order the District to post a notice
incorporating the terms
of
the order. (Placerville Union School District (1978) PERB Decision
No. 69.)
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record
in
the
case, it is found that the Chula Vista Elementary School District (District) violated the
Educational Employment Relations Act (Act), Government Code section 3540 et seq.,
by
retaliating against Joyce Singer Abrams (Abrams) for her union activity.
Pursuant to section 3541.S(c)
of
the Government Code, it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Retaliating against Abrams and other employees for their union activity.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Rescind and destroy the letters dated September 17 and November 24,
2008, denying Abrams' reapplication to be a support provider.
2. 	Reinstate Abrams as a support provider.
3.
3. 	Pay Abrams backpay with interest at the rate
of
7 percent per annum
until she is reinstated or refuses reinstatement.
4. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees in the District customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that it will comply with the terms of this Order.
8

Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
5 . 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Abrams.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, $ 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, $$ 32135, subd. (a) and 32130; see also Gov. Code,
$ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
5. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Abrams.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
9

U.S. mail. (Cal. Code Regs., tit. 8, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, $$ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $$ 32300, 32305, 32140,
and 32135, subd. (c).)
Thomas J. Allen
Administrative Law Judge
10
U.S. mail. 	(Cal. Code Regs., tit.
8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit.
8,
§§
32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit.
8,
§§
32300, 32305, 32140,
and 32135, subd. (c).)
10
Thomas
J.
Allen
Administrative Law Judge