California Virtual Academies (PERB 2484E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA VIRTUAL ACADEMIES,
Employer,
and
CALIFORNIA TEACHERS ASSOCIATION,
Petitioner.
Case No. LA-RR-1227-E
PERB Decision No. 2484
June 28, 2016
Appearances: Jackson Lewis PC by David S. Allen and Michael A. Wertheim, Attorneys, and
Gibson, Dunn & Crutcher by Eugene Scalia, Greta B. Williams and Megan Cooney, Attorneys,
for California Virtual Academies; Laurie M. Burgess, Staff Attorney, for California Teachers
Association.
Before Martinez, Chair; Winslow and Gregersen, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions and cross-exceptions from a proposed decision (PD) by a
PERB administrative law judge (ALJ) in a representation matter. The petitioning union,
California Teachers Association (CTA), seeks exclusive recognition of a single bargaining unit
of approximately 700 certificated teachers employed by 11 charter schools. The threshold
issue presented on appeal is whether the self-described “network” of 11 “virtual” charter
schools that comprise the California Virtual Academies (CAVA, CAVA School(s) or
School(s)) is a single employer for representation purposes under the Educational Employment
Relations Act (EERA).1
1 The EERA is codified at Government Code section 3540 et seq. Subsequent section
references are to the Government Code unless otherwise specified.

CTA argued before the ALJ that the operations of the CAVA Schools are so entwined
that they should be considered a single employer and, thus, a single, statewide bargaining unit
is appropriate. CAVA Schools countered that each charter school is a legally separate entity
and, thus, a single, statewide bargaining unit is not appropriate.
After five days of formal hearing and submission of post-hearing briefs, the ALJ
concluded that the joint, not single, employer doctrine applied. The ALJ found a community
of interest exists among the employees in the petitioned-for statewide bargaining unit and
therefore the petitioned-for unit is appropriate. The ALJ thereby certified CTA as the
exclusive representative of all employees in the unit. Timely exceptions and responses were
filed by both parties.
The Board has reviewed the hearing record in its entirety and has considered fully the
issues raised by the parties on appeal in light of the applicable law. We affirm the ALJ’s
ultimate conclusion that a single, statewide unit is appropriate and we affirm the ALJ’s order
certifying CTA as the exclusive representative of the employees in the petitioned-for unit. We
reach this conclusion via an alternate analysis of the threshold issue.
The status of joint employers is created where two or more legally-distinct employer
entities share or codetermine the essential terms and conditions of employment of the same
employees. Each joint employer is required to bargain only with respect to such terms and
conditions of employment within its authority to control. In contrast, under the single
employer doctrine, where two or more ostensibly legally-distinct employer entities operate as
one, together they constitute a single employer. A single bargaining relationship is created
based on the pooled authority of the constituent entities.
2

We recognize that each of the 11 CAVA Schools is separately chartered and accredited,
and operates under bylaws that purport to rest ultimate control over decision-making in an
“autonomous” Board of Directors. We also recognize that each of the 11 CAVA Schools has
declared itself, as opposed to its chartering school district, to be a public school employer for
EERA purposes under the California Education Code, and that the certificated teachers in the
proposed bargaining unit have entered into employment contracts with, and receive paychecks
from, individually-named CAVA Schools. On close examination of the administrative,
supervisory and management structure within which the CAVA Schools operate, however, we
find scant evidence of true independent operations and overwhelming evidence of integration
and commonality.
CAVA Schools’ teachers can be required to teach students enrolled at Schools other
than the School holding the teacher’s employment contract. The teachers are overseen,
evaluated and disciplined by supervisors and managers who typically function on a regional
multi-School level and ultimately report up the chain of command to one statewide Head of
Schools. The Head of Schools is identified in charter documents and on at least one state-
required reporting document as acting in the capacity of “Superintendent.” On that same
reporting document, the “District” is identified as “California Virtual Academies.” There is
one Director for Elementary Education, one Director for Middle School and one Director for
High School. There is one “brick and mortar” office in Simi Valley for all CAVA Schools.
It serves as a statewide employee and student records retention facility and is minimally staffed
by “classified” employees who provide clerical support.
3

While each CAVA School has a Board of Directors, these Boards meet just four times a
year and typically conduct their business in less than 45 minutes. The Boards ratify personnel
decisions made by managers after the personnel action has already become effective and, with
very few exceptions, approve common proposed policies that have been composed by, initiated
by, prepared by, and presented by the Head of Schools or other members of the Head of
Schools’ administrative team. Board vacancies are filled through an informal recruitment
process led by the Head of Schools. Those who have been appointed to individual Boards of
Directors include a CAVA School employee, family members of CAVA Schools’ managers,
individuals who report to the Head of Schools through their employment with other non-
CAVA online schools and even the Head of School’s own mother. The close reporting and
familial relationships between Board members and the Head of Schools call further into
question the claimed autonomy of the local governing bodies, and give further support to the
existence of a unified command structure.
In all, the record evidence establishes the key factors necessary to finding that the
single employer doctrine applies. The operations of the Schools are functionally integrated.
The Schools share a common management structure. The conditions of employment are
centrally determined across Schools. And, teachers are treated as CAVA-wide resources to be
shared, allocated and moved between Schools as needed. We conclude, therefore, that the
single employer doctrine applies for representation purposes under EERA, and that a single,
statewide bargaining unit is appropriate.
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PROCEDURAL HISTORY2
On or about May 9, 2014, CTA filed with “California Virtual Academies (CAVA)” a
request for recognition (petition) under EERA section 3544 for a bargaining unit consisting of
“[a]ll full and part-time certificated employees and all teachers hired pursuant to Education
Code Section 47605(j) employed by California Virtual Academies (‘CAVA’),” and excluding
“all mangers, supervisors, classified employees, confidential employees, and casual substitutes
within the meaning of the Act.” In accord with PERB regulations,3 a copy of the petition was
also filed with PERB. On or about May 10, 2014, CTA filed with PERB its original proof of
majority support for the petition. The organization named in the support documents is
“California Teachers Association.”
After PERB’s Office of the General Counsel (PERB OGC) sent correspondence to the
parties requesting certain information from CAVA Schools, Attorney David S. Allen on behalf
of the 11 CAVA-named charter schools filed with PERB a single response in opposition to the
petition. The charter schools were identified as: California Virtual Academy at Jamestown;
California Virtual Academy at Kings; California Virtual Academy at Los Angeles; California
Virtual Academy at Maricopa; California Virtual Academy High School at Maricopa;
California Virtual Academy at San Diego; California Virtual Academy at San Joaquin;
2 While the Board’s analysis of the threshold issue differs from that of the ALJ, we
agree with the PD in all other material respects. We have not adopted the PD as the decision
of the Board itself, but we have incorporated, in many stretches wholesale, much of the PD in
our decision. We credit the ALJ for a meticulous rendering of the facts, exhaustive decision
and above all else, correct conclusion regarding the appropriateness of a single, statewide
bargaining unit covering all certificated teachers employed by CAVA Schools.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
5

California Virtual Academy at San Mateo; California Virtual Academy at Sonoma; California
Virtual Academy at Sutter; and California Virtual Academy at Fresno. The opposition
response contended, among other things, that the petition was deficient because it sought an
inappropriate bargaining unit of employees who were not employed by a single or common
public school employer.
On June 18, 2014, Allen filed with PERB on behalf of the CAVA Schools separate,
alphabetized lists of employees per CAVA-named charter school, including the total number of
employees employed at each School. Also throughout June and July 2014, a dispute between
the parties developed over the identity of the petitioner, prompted by the filing of an amended
petition and notice of appearance by CTA staff attorney Laurie Burgess on behalf of an
organization named “California Virtual Educators United, CTA/NEA” (CVEU). No proof of
support accompanied the amended petition. CAVA Schools contended that the employee
organization named on any cards or petitions bearing employees’ signatures must precisely
match the name of the petitioning employee organization in order for the petitioning employee
organization to achieve exclusive representative status. CVEU countered that it is common
practice for a CTA-affiliated local, like itself, to select the formal name for the chapter during
the time that the local is creating bylaws, a constitution, and filing its recognition request, and
furthermore that PERB Regulation 33100 permits recognition petitions to be amended to
correct technical errors before notices of hearing or an election are issued.
On July 15, 2014, PERB OGC issued an administrative determination finding that CTA
had provided evidence of majority support in the claimed unit and requesting that the employer
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submit a decision under PERB Regulation 33190.4 The administrative determination did not
acknowledge the amended petition filed by CVEU or otherwise refer to CVEU.
CAVA Schools timely filed a denial of recognition under dual grounds. It asserted that
CTA, not CVEU, had provided proof of support. It also asserted that “California Virtual
Academies” is not a legal entity; therefore, it is not a single employer or joint employer with
the 11 CAVA-named charter schools at issue, and a statewide unit of employees employed by
separate public school employers is not appropriate. CAVA Schools requested that PERB
conduct an investigation pursuant to EERA section 3544.5, subdivision (a). On September 17,
2014, CVEU filed its own request for Board investigation. CAVA Schools opposed CVEU’s
request for lack of standing based on CVEU’s lack of showing of support.
On November 6, 2014, the parties appeared at the PERB Los Angeles Regional Office
for an informal settlement conference, but were unable to resolve their dispute. The case was
then transferred to PERB’s Division of Administrative Law. CVEU requested that the hearing
process be expedited, but that request was denied by the PERB Chief ALJ. A formal hearing
was set for March 2 through March 4, 2015.
On January 30, 2015, CAVA Schools filed a motion to dismiss the petition and/or to
stay proceedings because PERB had not determined that CVEU had demonstrated majority
support. On February 11, 2015, CVEU filed its opposition to the motion.
On February 13, 2015, a pre-hearing conference was held to hear argument and rule on
CAVA Schools’ motion. Burgess appeared on behalf of both CVEU and CTA, and Allen
4 On account of a clerical error, PERB’s internal records incorrectly identified the
employer that was named on the petition. As a result, PERB OGC wrongly captioned the
employer as “California Virtual Education Partners” in the administrative determination. That
initial error has been corrected.
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appeared on behalf of CAVA Schools. A written, tentative ruling was issued finding that:
(1) CTA and CVEU were not the same organization for recognition purposes; (2) PERB had
only made a majority support determination for the original petition filed by CTA; thus, the
amended petition filed by CVEU without support was deficient; and (3) the case record did not
demonstrate that CAVA Schools had posted the Notice of EERA Representation Petition as
required by the statute and PERB regulations; accordingly, a hearing to resolve unit
appropriateness could not take place unless and until all threshold requirements had been
satisfied. The proposed order in the tentative ruling granted leave to CTA and CVEU to
perfect their filings or take other action consistent with the tentative ruling.5 CAVA School’s
motion to dismiss/stay was therefore denied as premature.
During the pre-hearing conference, all disputed procedural issues addressed in the
tentative ruling were satisfactorily resolved as follows. CAVA Schools and CTA provided
adequate assurance that notice of the original petition was posted in accordance with legal
requirements. CVEU agreed to, and subsequently did, withdraw the amended petition, and
CTA confirmed its desire to proceed with the request to be exclusively recognized under the
original petition. Therefore, the ALJ ruled that the formal hearing in the matter could proceed
as scheduled. The parties agreed that CTA would present its case first at hearing without any
stipulation regarding the proper allocation of ultimate burdens of proof.
The formal hearing took place over five non-consecutive days in March 2015. The
parties filed post-hearing briefs by May 22, 2015. At that time, the record was closed and the
matter was submitted for decision.
5 Although not included in the proposed order, the tentative ruling also required CAVA
Schools to post the Notice.
8

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FACTUAL BACKGROUND6
The Founding and Organization of the Schools
1. 	Origins
The first CAVA School came into existence sometime in 2002, providing online
instruction to home-schooled students in grades Kindergarten through 12. Four or five CAVA
Schools opened between 2002 and 2003. Other CAVA Schools were added and subtracted
over time until the current compliment of 11 was reached.7 The record does not make explicit
when that occurred, nor does it provide context for the circumstances that led multiple online
charter schools to be branded with the CAVA name. According to Katrina Abston, the current
Head of Schools for all 11 CAVA Schools, the impetus for forming an online charter school
originates with a group of parents and teachers who, for various reasons, desire a public school
offering that is different than what is available within their home school district. They may
want a more tailored educational experience for their special needs or academically advanced
6 CAVA Schools filed 28 exceptions to the proposed decision (CAVA Exception(s)).
CAVA Exception Nos. 1 through 4 except to factual findings contained in the PD under
Findings of Fact. Because we have appropriated the ALJ’s factual findings as the foundation
for our fact section, we address those four exceptions in footnotes to that section, explaining
why a correction was or was not needed. CAVA Exception Nos. 5 through 8 raise “Issue[s] of
Fact” based on statements in the ALJ’s legal analysis of the single employer issue contained in
the PD under “Conclusions of Law.” As those exceptions are arguably factual in nature, we
address them in the same fashion. CAVA Exception Nos. 9 through 15 also raise “Issue[s] of
Fact,” but those are based on statements in the ALJ’s legal analysis of the joint employer issue,
and therefore need not be addressed given our differing analysis. CAVA Exception Nos. 17
through 28 except to issues of law (as does the “Issue of Fact” raised in CAVA Exception
No. 16). Because we agree the joint employer doctrine does not apply, we address only those
legal issues of continuing consequence later in the discussion section of this decision.
7 According to a charter document for CAVA at Los Angeles dated January 23, 2013,
there were 12 CAVA Schools at that time. In addition to the 11 named CAVA Schools
involved in this case, the founding group described in the charter document for CAVA at
Los Angeles includes CAVA at Santa Ysabel. This discrepancy is not explained in the record.
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students. They may need a more convenient public school option for students living in remote
areas. Or, they may want to shield students from bullying situations.
The CAVA Schools’ “founding groups” all were familiar with, and supportive of, the
curriculum offered by K12, Inc. (K12), a Virginia-based curriculum and management company
that has relationships with charter schools and school districts across the country.8 Abston, for
example, learned of K12 when, in around 2002, she attended a conference catering to small
school districts and saw K12’s presentation introducing the concept of online education.
People involved with founding CAVA Schools learned of K12 in a similar manner and/or by
word of mouth. No founding group members testified, but one of them, from CAVA at
Fresno, is Abston’s mother.9 Abston began her affiliation with CAVA when she was initially
employed by CAVA at Jamestown in 2003 as a Special Education teacher. Since July 2004,
Abston has been employed by K12.10 As discussed in greater detail below, each CAVA
School has a contractual relationship with K12. In fact, the California Virtual Academies, i.e.,
“CAVA” name itself is owned and trademarked by K12.
2. 	The Charter Documents, Bylaws, and Boards of Directors
a. 	Charters
The next step in the process of establishing a CAVA School was that the founding
group would approach a local school district representative, usually the superintendent, to
8 Several of the charter documents that are discussed in greater detail below specifically
note: “The founding group was made up of individuals, parents and teachers, who are familiar
with the California Virtual Academies using K12 Inc. services.”
9 Abston’s mother also served for a time on the CAVA at Fresno Board of Directors,
but no longer is affiliated with that or any other CAVA School. She now works for K12 in
connection with “IQ Academy,” a K12-affiliated online school outside the CAVA system.
10 Abston works with K12 as Head of Schools not just for CAVA Schools but also for
“Insight,” another K12-affiliated online school outside the CAVA system.
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discuss whether the school district was willing to approve and authorize a charter school
application. When mutual interest existed for an online charter school to operate, a
presentation to the school district’s governing board was prepared. Such presentation included
a charter application that was discussed and voted upon during a public meeting of the
governing board. The Charter Schools Act11 establishes criteria that a school district considers
when evaluating whether to authorize or deny a charter application.12 After approval of the
charter application by the authorizing school district’s governing board, the final step in the
process was submission of the locally-approved application to the California Department of
Education (DOE) for final approval of the charter, issuance of a charter school number, and
issuance of a County District School (CDS) code. The CDS code is a unique numerical
identifier for each public school in the state to track fiscal and performance issues. After the
state approves a charter application and supplies a CDS code, a charter school may lawfully
operate in the county within which it is chartered and in all contiguous counties. So, for
example, CAVA at Los Angeles may operate within Los Angeles, Orange, San Bernardino,
11 The Charter Schools Act of 1992 (Charter Schools Act) is codified at Education Code
section 47600 et seq. In 1999, the Legislature enacted amendments to the Charter Schools Act
through Assembly Bill (AB) 631. (Added by stats. 1999, c. 828 (AB 631), § 2; amended by
stats. 2000, c. 135 (AB 2539), § 45.) AB 631 applied EERA to charter schools and required
the charter school to declare whether it or the authorizing school district shall be the public
school employer for purposes of EERA. (See Chula Vista Elementary School District (2004)
PERB Decision No. 1647, p. 3, fn. 2 (Chula Vista).) The Charter Schools Act expressly
requires PERB to take its provisions into account when deciding cases involving charter
schools. (Chula Vista, supra, at p. 19; Ed. Code, § 47611.5, subd. (d).)
12 The criteria include, among others, whether the charter school has declared itself to
be the public school employer for EERA purposes, the governance structure of the charter
school, and the qualifications of employees to be employed by the charter school. (See Ed.
Code, § 47605, subd. (b)(1)-(6).)
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Kern, and Ventura counties.13 Each of the CAVA Schools at issue has its own CDS code and
charter school number.
Eleven current charter documents, one for each of the 11 CAVA Schools, were received
in evidence. Some were entitled Charter Renewals and others Charter Proposals. Charters are
typically issued and operative for one to five years. After such time, they must be renewed and
again approved by an authorizing school district for another five-year period through a Charter
Renewal. A Charter Proposal is required whenever the authorizing school district changes,
which happened here several times according to the record,14 or upon the initial founding of a
charter school. Abston signed each of these 11 charter documents as the “Authorized
Representative[]” of the applicant charter school.
All of the Charter Renewal documents are nearly, if not completely, identical in
substance. The same is also true for all of the Charter Proposal documents. The Charter
Proposals are more detailed and therefore roughly double the number of pages of the Charter
Renewals. All of these documents express common academic goals and requirements for
students. Both categories of documents contain a heading entitled, “Governance Structure,”
with virtually indistinguishable statements under that heading in each document. The
following is an excerpt of the statement appearing in all of the Charter Proposals,15 which
describes in detail how a CAVA School will operate:
13 The authorizing school district for CAVA at Los Angeles is the West Covina Unified
School District, which is located within the county of Los Angeles.
14 For example, there have been three different authorizing school districts for CAVA at
Jamestown and the authorizing school districts for CAVA at San Joaquin and CAVA at Sutter
also have changed over the years.
15 The Charter Renewal documents also contain most of the language quoted here,
including the description of the role of the Head of Schools, but with less detail about the
founding group appointing the initial Board of Directors.
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Upon approval of this charter, the California Virtual Academy @
[name of School] will constitute itself as a nonprofit California
Public Benefit Corporation pursuant to California law. The school
will be governed pursuant to the By-laws adopted by the
Incorporators and subsequently amended pursuant to the
amendment process specified in the By-laws. Please see attached
By-laws produced by legal council [sic] for the petitioner. [16] The
By-laws clearly indicate the roles and responsibilities of the
California Virtual Academy governing board and clearly spells out
the autonomous nature of the board. The applicants for the Charter
School chose the structure of a nonprofit public benefit corporation
to ensure a seriousness of purpose and adequate protection for its
members, and the District. A Head of Schools will act in the same
capacity as a Superintendent in implementing the actions of the
Board of Directors. . . .
The School’s Founding Group appointed a five (5) member Board
of Directors (“Board of Directors”). The founding group was made
up of individuals, parents and teachers, who are familiar with the
California Virtual Academies using K12 Inc. services. Subject to
the limitations of this charter and of the corporate By-laws, the
governance of the school will be under the authority of the Board
of Directors and it’s duly appointed representatives. In accordance
with Education [Code section] 47604(b), the District shall be
entitled to a single representative on the Board of Directors. After
the initial Board appointment, Board elections, terms, term limits,
resignation, removal and vacancies will all be handled in
accordance with the corporate By-laws.
The Board of Directors will meet regularly to oversee the
management, operation, activities, and affairs of the charter
school. The Board of Directors will define, compose, and revise
(as needed) the policies of CAVA and ensure compliance with its
charter agreement and applicable laws and regulations.
All Board meetings will be held in compliance with the Brown
Act. The Board, at its discretion, may vote to expand its
membership and/or create subcommittees. Specific
responsibilities of the Board are defined in the By-laws.
[¶…¶]
16 The documents referred to in this quoted text as “attached” were all separately
received in evidence for each of the CAVA Schools.
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The decision making authority vested with the governing board is
contained in the By-laws and the Services Agreement that are
established to make a matter of public record the operational
relationship of the California Virtual Academy @ [name of
School] Governing Board, K12Inc and any other entity that
will do business on behalf of the virtual academy. See attached
By-laws and sample Services Agreement.
(Emphasis added.)
The Charter Renewal and Charter Proposal documents also contain a heading entitled
“Human Resources,” with the substantive content under that heading in both categories of
documents setting forth identical educational and licensing requirements for teachers. A
separate subheading entitled “Employee Representation” appears only in the Charter
Proposals. This section states: “The Charter School shall be deemed the exclusive public
school employer of the employees of the Charter School for the purposes of the Educational
Employment Relations Act.”17 (Emphasis added.) Although it seems that the above-quoted
statement is not repeated in the Charter Renewals, it is undisputed that each of the 11 CAVA
Schools has declared itself to be the public school employer of its employees for EERA
purposes.
b. 	Bylaws and the Boards of Directors
As the charter documents express, each CAVA School has been incorporated as what is
known as a 501(c)(3)18 public benefit corporation under state and federal law and currently
17 As discussed previously, Education Code section 47605, subdivision (b)(6), allows
an authorizing school district to consider a declaration of whether or not the charter school
shall be deemed the exclusive public school employer under EERA when determining whether
to approve or reject a charter application. If a charter school does not declare itself to be the
public school employer, the authorizing school district is considered to be the public school
employer for EERA purposes. (Ed. Code, § 47611.5, subd. (b).)
18 This number refers to the section of the Internal Revenue Code that permits a
corporation to enjoy tax-exempt status under federal law.
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operates as what Abston described as an “independent” and “direct funded” charter school.19
Because CAVA Schools are founded as a 501(c)(3) public benefits corporation, members are
appointed, not elected, to the Schools’ Boards of Directors.20 The authorizing public school
district is entitled to a single representative on the Board of Directors.21 Each Board of
Directors has adopted bylaws as referred to in the charter documents. These bylaws govern the
conduct of Board business. They provide, among other things, that Board members carry
staggered terms and are seated and removed according to a majority vote by the sitting Board
of Directors. In practice, when vacancies on the Boards have arisen, an informal recruitment
process headed by Abston and/or members of her administrative team has yielded potential
candidates. Abston testified that when there is a vacancy, she and other staff communicate
over whether they know a parent, teacher, or community member who may be interested in and
suited to serving on a Board. Outreach to these potential new members is done by e-mail.
Some of the individuals serving on the Boards either ultimately report to Abston through their
employment relationships with non-CAVA K12-afiliated online schools where Abston also
serves as Head of Schools, or because they are currently employed by a CAVA School. For
19 The difference between a dependent and independent charter school is not explained
in great detail in the record, and those two terms are not defined under the Charter Schools Act.
Abston described a dependent charter school as being a district-run program rather than an
“autonomous entity.” The Charter Schools Act states that a “direct funded” charter school
receives its state funding directly. (Ed. Code, § 47651, subd. (a)(1).) An indirect funded
charter school receives state funding on a pass-through basis from the authorizer. (Ed. Code,
§ 47651, subd. (a)(2).)
20 Some individuals serve on more than one Board. For example, the same individuals
serve on the Boards of Directors for CAVA at Maricopa and CAVA High School at Maricopa.
21 See Education Code, section 47604, subdivision (b), of the Charter Schools Act. A
chart listing all the Boards’ members for each of the CAVA Schools was received in evidence.
A “District Representative” is identified for some Schools, i.e., CAVA at Jamestown (Tami
Ethier), CAVA at Kings (Johnny Baltierra), CAVA at Los Angeles (Rhonda Lusk), CAVA
High School at Maricopa (Stacey Oglesby), CAVA at Maricopa (Stacey Oglesby) and CAVA
at San Joaquin (Jeff Tilton), but not all. (See Employer’s Exh. C.)
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example, a member of the CAVA at San Joaquin Board of Directors is employed by CAVA at
Sonoma. Other individuals serving on Boards are family members of management employees
who report to Abston either through CAVA Schools or other K12 schools.
Most of the CAVA Schools’ bylaws appear identical to each other, except for the name
of the CAVA School and roster of members on the Boards of Directors.22 All of the Boards’
bylaws are prepared by the same law firm. According to Abston, “[t]hat firm is our general
counsel that we use, each of the Boards have employed.” (Reporter’s Transcript (R.T.),
Vol. V, p. 127.)23
The bylaws contain a common statement of general and specific powers of the Board of
Directors, which provides, among other things, that the Board of Directors may delegate
22 Seven bylaws appear identical to each other. They are 17 pages in length and belong
to the following CAVA Schools: CAVA at San Joaquin, CAVA at Maricopa, CAVA High
School at Maricopa, CAVA at Los Angeles, CAVA at Sutter, CAVA at Fresno, and CAVA at
Kings. The CAVA at San Diego bylaws are 13 pages in length and have a truncated section
describing the roles and responsibilities of its Board of Directors. There is no evidence in the
record that the CAVA at San Diego Board functions any differently than the others, however.
23 Abston testified in terms of “we” and “our,” raising the question whether CAVA
employs one CAVA-wide general counsel or each CAVA School employs the same firm under
separate approval processes and retainer agreements. Regarding the retention of counsel in
these proceedings, Abston testified:
[Q] 	Prepared. Okay. So in her capacity, whatever,
preparing the Board agendas, my question is, is she aware of
whether each School Board approved the retention of this law
firm [Jackson Lewis] for these proceedings.
[ALJ] All right. I’m going to let her answer, if she knows.
[A] 	They’re employed by K12. They’re not employed
by a Board, so not one cent of public money is being spent.
(R.T., Vol. V, p. 136.)
It is not improper for parties with common interests to enter into joint defense
agreements. Abston’s “public money” reference is nonetheless puzzling. The service fees
paid to K12 by CAVA Schools are paid for out of public coffers.
16

management of the corporation’s activities to any person, committee, or company, but all
corporate powers remain under the ultimate direction of the Board of Directors. The process
for seating and removing members of the Board of Directors by vote of the sitting Board of
Directors is also set forth.
Most of the bylaws also contain a detailed statement of the “Specific Powers” of the
Board of Directors, including appointing and removing officers, agents, and employees of the
corporation. They also contain the following Board of Directors’ “Roles and responsibilities”:
• 	Meeting regularly to oversee the management, operation,
activities and affairs of the California Virtual Academy at
[name of School];
• 	Define, compose, and revise (as needed) the California
Virtual Academy at [name of School] policies and ensure
compliance with its Charter and applicable laws and
regulations;
• 	Financial development and management;
• 	Fiduciary duties (duty of care and loyalty) owed to the
California Virtual Academy at [name of School];
• 	Program oversight;
• 	Coordination and long-term planning;
• 	Overseeing and evaluating the work of the Head of
Schools;
• 	Setting a framework for the budget process and
authorizing the annual budget;
• 	Approving large resource expenditures, significant
program changes, expansion into new program areas, and
building and facility issues;
• 	School calendar;
• 	Appointing or dismissing administrators;
• 	Adopting the annual budget;
• 	Purchasing or selling of land;
• 	Locating new buildings or changing the location of the
school’s administrative offices;
• 	Creating or increasing indebtedness;
• 	Adopting online and offline education programs;
• 	Designating depositories for school funds;
• 	Entering into contracts where the amount exceeds $5,000;
17

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• 	Approving salaries or compensation of administrators,
teachers, or other employees of the California Virtual
Academy at [name of School];
• 	Entering into contracts with and making appropriations to
local school districts, professional service providers, or
education service centers; and
• 	Hold meetings in compliance with the Brown Act.
(Fn. omitted.)
Most of the bylaws list the same address in Simi Valley as the location of the Schools’
corporate offices. Abston described the office in Simi Valley as a records retention facility,
with only a handful of clerical employees physically working out of that location. All other
employees of the CAVA Schools and employees of K12 who provide services for the CAVA
Schools are remote employees who work out of their homes. The Simi Valley office stores
student and employee records for all CAVA Schools.24
What was received in evidence purporting to be the CAVA at Jamestown bylaws differs
in form and substance from all of the others previously discussed. (See Employer’s Exh. D6,
tab 5.) This document does not contain any statement regarding the general or specific powers
of the Board of Directors. It appears, but is not entirely clear, that the document received at
tab 5 of Employer’s Exhibit D6 is not actually the CAVA at Jamestown bylaws. For example,
the first page of the document begins with a heading entitled “Articles of Incorporation,” and
includes an item numbered “7,” which states that the CAVA at Jamestown Board was
presented with and adopted bylaws that were purportedly attached to that original document as
24 According to the bylaws, the corporate offices of CAVA at Sonoma and CAVA at
San Diego are not located in Simi Valley, and instead the corporate offices for these two
Schools are located at a similar address in Oakland (same street address, but one includes a
suite number and the other a floor number). There is no evidence in the record, however, that
student and employee records from those two CAVA Schools are not also retained in the Simi
Valley office, or that those two CAVA Schools are not also supported by the classified
employees who work out of the Simi Valley office, as is true for the other CAVA Schools.
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an “Exhibit ‘B’.” No bylaws, however, are found anywhere in or attached to the documents
included in Employer’s Exhibit D6.25 Despite the fact that the CAVA at Jamestown bylaws
appear to be missing from the record, there is no evidence that the CAVA at Jamestown Board
of Directors functions any differently than the other Boards of Directors.
3. 	The Relationship Between the CAVA Schools, K12, and Insperity
All 11 CAVA Schools have a contractual relationship with K12 through individual
Educational Products and Services Agreements (EPSAs).26 In addition to supplying uniform
technology platforms and curriculum to all of the Schools, the EPSAs also dictate that K12
will furnish to the CAVA Schools “administration services, teacher recruiting, training and
management,” including an administrative team consisting of the Head of Schools (currently
Abston), a financial officer (currently Mark Galang), and clerical support staff. This same K12
administrative team services all 11 CAVA Schools. Each CAVA School pays K12 directly for
these services according to the terms of its EPSA.
The EPSAs provide that K12 will “take the lead to help recruit, set the terms of
employment, hire, supervise, discipline and terminate Teachers and Student Support Staff and
such activities will be performed in consultation with the Board (or its designees).” Under the
EPSAs, the CAVA Schools, not K12, are responsible for paying teachers’ salaries, and the
Boards of Directors retain final decision-making authority over all personnel matters. It is also
25 Employer’s Exhibit D6 was presented in a binder containing 10 tabs that house
various documents relating to the structure and organization of CAVA at Jamestown. Similar
exhibits for the other 10 Schools were also received in evidence numbered as Exhibits D1-D5
and D7-D11. The bylaws for all of the other CAVA Schools are contained at tab 5 of the
exhibits in this series.
26 Eleven EPSAs, one for each CAVA School, were received in evidence. They are not
identical to each other in form, but are substantially similar enough in content to discuss as
though they are one document. The quoted provisions here are taken from the CAVA at
San Diego EPSA.
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noted in the EPSAs that the CAVA Schools are responsible for adopting and approving their
own budgets. No K12 employee may sit as a voting member on a Board of Directors.
Under the terms of the EPSAs, K12 also provides advertising and marketing services
for all of the CAVA Schools, provides and licenses the CAVA logo (a bear), supplies all
employees’ business cards (with the Simi Valley mailing address), and provides employees
e-mail addresses that share a common domain. K12 hosts one website for all CAVA Schools,
which, in most respects, presents the CAVA Schools to the public as a single entity. There is
one Parent-Student Handbook distributed to all families enrolled in any of the CAVA Schools
that also presents the CAVA Schools as a single entity.
All 11 CAVA Schools also have a contractual relationship through individual Client
Services Agreements (CSAs) with Insperity,27 a Texas-based company that supplies payroll
and other human resources support services to its clients. Abston testified that there is no
relationship between Insperity and K12. Unlike the relationship between the CAVA Schools
and K12, which is memorialized in the charter documents, the circumstance that led all 11
CAVA Schools to contract with the same human resources support and payroll services
company was not explained in the record.28 According to the CSAs and Abston’s testimony,
Insperity handles all employees’ payroll and benefits administration, including reporting
27 Insperity was formerly known as “Administaff.” Thus, some of the CSAs received in
evidence were entered into by that named entity.
28 It is noted, however, that, unlike the EPSAs, none of the CSAs entered in evidence
was signed by a Board member. Four of the CSAs entered in evidence were signed by Nancy
Hauge. Hauge is identified as “SVP HR” with an address at 2300 Corporate Park Drive,
Herndon, VA 20171, K12’s corporate office. Another two are signed by Hauge, using the
Simi Valley address. Another two are signed by K12-employed Abston, using the Simi Valley
address. One is signed by James Konantz, whose title or position is not identified in the CSA
but is identified in one of the EPSAs as K12 Vice President of Western Regional School
Management, using the Simi Valley address. Two of the CSAs were identified in the record,
but never received in evidence.
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information to the California State Teacher Retirement System (CalSTRS) and California
Public Employees Retirement System (CalPERS).29 The CSAs also state that Insperity and the
CAVA Schools are considered “co-employers” of employees of the Schools. As further
discussed below, Insperity also is available to consult with CAVA management when
employees need to be disciplined and/or terminated from employment.
In addition to those supplied by K12, the CAVA administrative team also includes
individuals employed by CAVA Schools. There is a Human Resources Administrator, Casey
Johnen, who is employed by one School but is responsible for preparing payroll for Insperity,
issuing teacher contracts and assisting with job offers, all on a CAVA-wide basis.30 Johnen
sends out teacher contracts for all CAVA teachers at the same time every year. After Abston
29 Florabelle Ruanto serves as CAVA’s statewide CalSTRS Payroll Administrator.
30 CAVA Exception No. 1 takes issue with the ALJ’s finding that human resources
support, including Johnen, is “furnish[ed]” by K12. While it is true that Johnen is not
employed by K12, Johnen does report to Abston who testified as follows:
Q 	. . . Who exactly are you referring to when you say
the current California Virtual Academies administrative team?
Who is that team comprised of?
A 	It would be comprised of the administrative team
that is allowed for under the service agreement with K12. So that
would be included of [sic] the Head of School. It would be the
Finance Manager. It would be HR support. It would be clerical
back office support, the receptionist, any other that are provided
for in that service agreement.
Q 	And when you say HR support, can you please
identify what individuals you’re referring to?
A 	I wouldn’t be able to list them all for you, but
we’ve discussed, obviously Casey Johnen would be one of those
supports provided for the School.
(R.T., Vol. II, pp. 117-118, emphasis added.)
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and the financial department determine the merit increases for CAVA teachers each year,
Johnen sends out amendments to teacher contracts to be signed by the teacher and returned to
the Simi Valley office. In the Simi Valley office, the amendments are placed in the teachers’
personnel files where their signed employment contracts are also maintained.
4. 	Student Enrollment
As mentioned above, the Schools take students from the county in which the School is
chartered or any contiguous county. According to Abston, enrollment documents are
processed online “through the enrollment team document processors, either at K12 or K12
employees that are based either in Herndon or California or wherever they’re based.” (R.T.,
Vol. II, p. 18.) Abston further testified: “Once they’ve completed that process, they would be
considered to be enrolled at California Virtual Academy and then would be assigned to a
teacher there.” (R.T., Vol. II, p 18, emphasis added.) There is an Associated Student Body,
referred to as CAVA ASB. The purpose is to enable CAVA Schools’ High School students to
participate in student government on a statewide basis. (R.T., Vol. III, p. 231.)
5 	Budgeting, Decision-Making of the Boards, and Billing for Allocated Services
a. 	Budgeting
The CAVA Schools are funded in the manner customary for most, if not all, public
schools in California—i.e., primarily through average daily attendance (ADA) funds provided
by the state, local property tax revenues, and federal title monies for specific programs.31 Each
School has a distinct amount of funding available dependent upon, in large part, its own
31 Funds for Special Education programs are channeled, in part, through the Special
Education Local Planning Agency (SELPA) to which each CAVA School belongs. For
example, CAVA at Los Angeles belongs to the San Gabriel SELPA. Other local school
districts also belong to that SELPA.
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student enrollment levels and local fiscal conditions.32 The amount of ADA money per student
that each CAVA School receives, however, is the same.
The CAVA Schools’ proposed budgets are typically prepared and presented to the
Boards of Directors in a common format by K12 financial officer Galang after local Site
Councils for each CAVA School, comprised of parents and teachers, have been afforded an
opportunity to provide input. After presentation of the budgets to each Board of Directors, the
Boards then vote on and ultimately approve their own budgets. While each CAVA School has
its own budget that is approved by its own Board of Directors, 33 Abston testified that fiscal
policies and procedures are “the same.” (R.T., Vol. II, p. 78.) Abston also testified that
CAVA follows the financial calendar of the State of California. (R.T., Vol. V, p. 81.)
b. 	Decision-Making of the Boards
Meeting minutes from five quarterly meetings of the Boards of Directors for all 11
CAVA Schools held between September 2013 and September 2014 (55 meetings) were
32 In the PD, this sentence is followed by, “Therefore, each School’s Board develops
and approves its own budget,” to which CTA excepts. We agree with CTA’s exception, and
therefore do not incorporate this statement into our decision. It is true as CTA asserts that the
CAVA financial officer prepares the budget documents for all CAVA Schools. All CAVA
Schools use the same auditors, at Abston’s recommendation. Abston testified that instead of
presenting individual budget items to each CAVA School Board, she seeks approval for
“buckets” of money and then she, along with her team, decide how the funds will be spent.
(R.T., Vol. I, p. 196.) Abston knows of no instance in which a budget presented to a CAVA
School Board had been rejected. Meeting minutes that were received in evidence show that
budget-related action items on the agenda are routinely approved by CAVA Schools’ Boards
with “[n]o questions asked.” While the Boards typically are responsible under their bylaws for
“[f]inancial development and management” and “[s]etting a framework for the budget
process,” there is no evidence of that in the record. The Boards appear to exercise little to no
independent judgment over fiscal policy and therefore cannot be said to “develop[]” their own
budgets.
33 Each CAVA School also purchases and inventories its own equipment, such as the
computers that are issued to employees.
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received in evidence.34 Meetings of the Board of Directors for each CAVA School are held
once per quarter by teleconference, with a physical location available at the authorizing school
district’s offices, so that members of the public wishing to participate by teleconference at a
common location may do so. At least two teachers, Danielle Hodge and Stacie Bailey, testified
regarding their attempts at attending various meetings of the Boards at the local authorizing
school district’s offices. Bailey was able to attend meetings of several different Boards, and
Hodge was not able to do so because the staff at the authorizing school district in that instance
was unaware of the meeting. Members of the public may also request and receive from the
CAVA Simi Valley office a phone-in code to participate remotely in the teleconference
meetings. The meetings typically last 25 to 40 minutes,35 and are all scheduled on or around
the same dates. A K12 employee is the record keeper of the meetings. Action items on the
agenda are stamped “APPROVED” in the Simi Valley office.
34 These meetings took place in September 2013, December 2013, March 2014, June
2014, and September 2014. CTA also introduced testimony by one of its employees who
examined the meeting minutes and prepared a chart purporting to summarize the School
Boards’ actions. The chart was received in evidence. During the employee’s testimony, he
first asserted it was accurate but later admitted to noticing an error. Neither the ALJ nor the
Board itself has given his testimony regarding the School Boards’ actions, or the summary
chart, any evidentiary weight.
35 Based on the meeting minutes received in evidence, the longest meeting lasted
45 minutes, the shortest lasted five minutes. Using only the longest four meetings for each
Board from the five sets of meetings, the average total time spent per year by each School
Board in meetings conducting Board business was 114.63 minutes, or less than two hours.
The five-minute Board meeting referred to above was a CAVA at Maricopa High
School Board meeting held on December 13, 2013. All four members attended. The meeting
was called to order by the Board Chair at 2:16 p.m. and adjourned at 2:21 p.m. During the
meeting, the Board approved with “[n]o questions asked” the following agenda items: three
items under “Business” entitled FY 2012-13 Audit Certification, FY 2013-14 First Interim
Budget Update, and FY 2013-14 Education Protection Account Budget; one item under
“Personnel” entitled 2013-14 Employment Agreements; one item under “Instruction and
Curriculum” entitled Document Retention Policy; and one item under “Pupil Services” entitled
Single School District Plan.
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According to Abston, the records pertaining to all CAVA Board meetings are
maintained at the CAVA Simi Valley office. Meeting agendas are posted online on the CAVA
website and physically at the authorizing school district. Abston attends and presents
information to the Boards at each meeting.
At the Board meetings, the Board is presented with a list of employees who have
resigned or been terminated, with no differentiation between the two. The list is presented to
the Board and the Board ratifies the list “as a whole.” (R.T., Vol. III, p. 241.) Although
Abston testified that the Boards go into closed session to discuss employee terminations,
minutes from the 55 meetings of the 11 Boards held over the course of five consecutive
quarters show that no Board went into closed session once.36
36 Proposed policies are presented to the CAVA Board in “Board Reports.” Board
Report # 03, prepared in connection with a June 11, 2014, regularly-scheduled CAVA at Sutter
Board meeting was received in evidence. That meeting, which was attended by all four Board
members, lasted 28 minutes. In addition to approving the prior meeting’s minutes, the Board
approved five proposed policies presented in Board Report # 01 (FY 2014-15 Preliminary
Budget), Board Report # 03 (2013-14 Employment Agreements), Board Report # 04
(Instruction and Curriculum), Board Report # 05 (Application for Federal Categorical
Programs) and Board Report # 06 (Local Control Accountability Plan).
Board Report # 03 was presented by Human Resources Administrator Johnen during
the Personnel portion of the meeting, with “[n]o questions asked.” The subject of Board
Report # 03 is entitled 2013-2014 Employment Agreements. The report proposed that the
Board “ratify the following 2013-2014 Employment Agreements.” The Background section of
the report states that “California Virtual Academy at Sutter offered contracts to teachers to
meet the enrollment demands of the 2013-2014 school year.” The section that follows is a
chart of “New Hires,” which contains the name of only one new high school math teacher.
That chart is followed by a “Terminations/Resignations” chart, which identifies the first and
last name of two employees, their title and their FTE (full-time equivalent) status. The
“Terminations/Resignations” chart does not specify whether the employee resigned or was
fired. The next section of the report is entitled Budget Implications, and simply states:
“Funding for these positions is provided through State apportionment based on Average Daily
Attendance as reported by the school.” The final section entitled Recommendations states:
It is recommended the Governing Board:
1. 	Ratify the offered 2013-2014 Employment Agreements
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2. 	Authorize CAVA Head of School to sign the 2013-2014
Employment Agreements on behalf of California Virtual
Academy at Sutter
(Petitioner’s Exh. 149.)
During the Personnel portion of the meeting, the Board approved the 2014-2015 Employment
Agreements and the 2014-2015 Salary Schedule. The Board did not go into closed session.
There is no indication that the Board approved any terminations.
In addition, Employer’s Exhibits D1-D11, as discussed in footnote 25, ante, are binders
containing 10 tabs housing various documents relating to the structure and organization of the
11 CAVA Schools, one binder per School. Tab 8 in each binder is identified in the table of
contents as “Board Minutes Ratifying Terms/Hires.” Nine of the 11 binders contain no Tab 8
documents. The Tab 8 documents for CAVA at Kings include Board Report # 03 for a
regularly-scheduled meeting on September 9, 2014, containing a “Terminations/Resignations”
chart like the one described above. There are eight employees listed on that chart, again with
no distinction between those who resigned and those who were fired. The meeting minutes
state that no closed session was held and contain no indication that the Board approved any
terminations. Similarly, the Tab 8 documents for CAVA at Los Angeles include what appears
to be one page of a Board Report for a regularly-scheduled meeting on September 12, 2014,
containing a “Terminations/Resignations” chart like the ones described above. There are
32 employees listed on that chart, again with no distinction between those who resigned and
those who were fired. And, again, the meeting minutes state that no closed session was held and
contain no indication that the Board approved any terminations.
In regard to hiring, all of the Schools use the same employment contracts that set forth
identical employment terms for teaching positions at the same grade levels. These contracts all
state that employees will report to the Head of Schools (Abston), and that employment is at-
will. The contracts for all CAVA teachers are signed by the Head of Schools (Abston) as
“agent for the [School’s] Board of Directors.” The employment contracts further state that an
employee’s at-will status cannot be altered without written confirmation by the Head of
Schools that the parties desire to amend the contract, and notes: “The [Head of Schools] does
not have authority to alter or amend this Agreement without the approval of the Board.”
Abston testified that Board ratification is required for a hiring to be “official,” but a
hiring decision becomes effective when communicated to the successful candidate by CAVA
26

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management, not when the Board approves the hiring decision at the next regularly-scheduled
Board meeting. As Abston testified:
Q 	All right. Is the employee – Is the teacher
considered hired without Board approval?
A 	They would start, yes, correct.
(R.T., Vol. IV, p. 204.)
Proposed policies, be they regarding employees or students, were often, but not always,
presented to each School’s Board at the same time. As one example, the meetings from March
2014 show that the Boards of CAVA at Los Angeles and CAVA at Fresno considered and
approved an “Action Plan for Implementation of the Common Core State Standards.” This same
proposal was tabled at CAVA at Jamestown, but was not presented at that time to any of the
other Boards.37 Based on review of the minutes from all 55 meetings during this time period, it
appears that whether or not action items were presented to the Boards at the same time,
eventually all of the same,38 or at least similar, items were presented to each School’s Board.39
There was marked similarity in the approval rate of common agenda items by the
individual Boards. For example, over the course of these 55 meetings, only one item that was
37 One likely reason that the Boards were not all presented with Common Core funding
proposals at the same time is because of the variances in each School’s budget for those and
other federal categorical funds.
38 A set of Board Reports containing proposed policies on sexual harassment was
entered in evidence. The proposals were presented to the Boards at around the same time
between December 10 and 12, 2014, and were identically numbered and identified as “Board
Report # 05” across all Boards.
39 An example of similar proposals occurred during the December 2013 meetings.
Under the category “Pupil Services,” some Schools approved a proposal entitled “Single Plan
for Student Achievement,” and others approved a proposal entitled “Single School District
Plan.” Abston explained regarding these types of proposals that the specific demographics of a
particular School dictate what is presented to the Boards as an action item.
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presented to all of the Boards was rejected by one School’s Board. The rejected proposed
policy was over Kindergarten Early Admittance. It was rejected by CAVA at San Joaquin and
accepted by all of the other Schools that considered it.40 Abston could only recall three
instances of rejection of proposed agenda items by any of the Boards, with the Kindergarten
Early Admittance policy being one of those three. The other two rejected items were a
proposal for a field trip applicable to only one School and for a variance in an individual
student’s course work also applicable to only one School. As relevant here, all of the Boards
approved the same certificated salary schedule.
c. 	Billing for Allocated Services
Teachers sign employment contracts with one CAVA School, but can and do perform
services at their appropriate grade levels for any of the CAVA Schools. They are evaluated
based on the services they perform for all CAVA Schools, not just for the one with which they
have an employment contract. Abston explained that the sharing of teachers by the Schools is
done to contain costs, and that a smaller School, like CAVA at Jamestown, is more likely to
need assistance from teachers with employment contracts elsewhere. In fact, it appears the
norm41 for CAVA Schools’ teachers to have students from multiple Schools, rather than to
have assigned students only from the CAVA School with which they have an employment
40 As this proposed policy pertained to only Kindergarten, it had no applicability and
therefore was not presented for consideration to the CAVA High School at Maricopa Board.
41 In CAVA Exception No. 2, CAVA takes issue with the ALJ’s characterization of
teacher-sharing amongst CAVA Schools as “the norm.” In support of this exception, CAVA
Schools asserts that CAVA Schools’ teachers at each grade level are responsible for a home
room group of students that predominately consist of students enrolled by the CAVA School
holding the teacher’s contract. Those same teachers, however, have other teaching
responsibilities (“caseload”) besides homeroom. Moreover, CAVA Schools admits that more
than half of all CAVA teachers teach at two CAVA Schools. Whether characterized as the
norm or in some other similar way, it is not uncommon for teachers to have employment
contracts with one CAVA School while providing services to multiple Schools within the
CAVA system.
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contract. None of the teachers who testified taught students enrolled only at the CAVA School
with which they had an employment contract. Rather, they all taught students enrolled at
various Schools throughout the state.
Abston testified that it is the “goal” to hire locally at all levels, especially for
Elementary Education level teachers who are required to hold more in-person meetings with
students and parents than are teachers in the upper grades. The practice of sharing employees
among the Schools becomes most common at the High School level where it is quite difficult
in some subjects, such as Physics, for instance, to recruit and hire qualified teachers. Thus, for
Physics, there is only one teacher that serves all CAVA students in the state.
Each School is billed proportionally for teacher services based on the percentage of
students that a teacher is assigned from that particular School.42 For example, in the case of
42 The proportional billing practice is described in the record as follows:
Q 	Any idea? Okay. So just to clarify, so the High School
allocation chart that we just finished, those percentages that we went and
discussed across the line, and Ms. Shilen as a fine example, is it your
testimony that each one of those Charter Schools pay proportionately for
her salary?
A 	Are billed proportionately?
Q 	Yes. Are billed proportionately to pay for her salary?
A 	Based on their class size or their class, their
students, correct.
Q 	All right. So again, not to be dense here, but even though
she gets a paycheck that says Sutter, all of the Schools in which she has
students end up being billed proportionately based on the number of
students she has to go towards the paycheck.
A 	Correct.
(R.T., Vol. I, pp. 177-178.)
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teacher Nancy Neal, which was discussed during Abston’s testimony, if 2 percent of her
students are enrolled at CAVA at Jamestown, then CAVA at Jamestown is billed and pays for
2 percent of Neal’s salary. This is so even though CAVA at Jamestown does not hold her
employment contract. Other Schools are similarly billed proportionally for their students who
are being taught by Neal, so that funds from multiple Schools contribute to her salary. This
proportional billing for teacher services is the standard practice across the CAVA system.
Once per month, Abston reviews allocation reports or charts that purportedly show each
teacher’s percentage of students from each School. Department directors, who are employed
by individual CAVA Schools,43 are responsible for preparing them. Allocation charts from
September 2014 were received in evidence showing student distributions per teacher for K-8,
High School, Special Education, and Intervention.44 The Boards are not furnished with copies
43 The role of department directors within the management structure is discussed at
page 38, post.
44 The allocation charts introduced in the record were furnished to employees by
Human Resources Administrator Johnen. The employees who received them were working as
members of a committee formed to prepare for the Schools’ accreditation review process. That
process is discussed in the section that follows.
In CAVA Exception No. 3, CAVA excepts to a finding, based on the allocation chart
for grades Kindergarten through 8 for the month of September 2014, that more than half of the
Elementary Education and Middle School teachers were assigned to teach students in multiple
Schools. CAVA is correct that this allocation chart identifies 198 out of 225 employees as
“teachers” and that, of the 198 teachers, 132 of them (more than half) received paychecks that
were funded entirely by one School. It should also be noted, however, that there are 27 other
employees identified on the chart in classifications other than “teacher” including: Attendance
Coordinator, Director of Community [Day], Director of Attendance, Lead Teacher, Academic
Administrator, Family Support Coordinator, Director of Middle School, Regional Program
Coordinator (RPC), Regional Lead Teacher (RLT), New Teacher Mentor, Curriculum
Specialist and Student Demographic. Of the 27 employees so listed, multiple Schools were
billed for the services of all but one RLT and one New Teacher Mentor.
30

of the allocation charts. Abston testified that a teacher’s highest allocation of students is
supposed to determine the School that issues the employment contract, and that “teachers will
be issued a new School depending on where the students fall versus ending employment with a
teacher and hiring someone over there. We can reassign them to a new School.” (R.T., Vol. I,
p. 165.) Thus, if student enrollment changes at the School where a teacher has an employment
contract to a level that no longer justifies the teacher’s employment contract being at that
School, his or her employment contract can apparently be re-issued by another CAVA School.
This is evidently deemed preferable to having to lay off or fire an employee and rehire them
elsewhere in the CAVA system.
It is not clear that the Special Education and/or Intervention allocation charts entirely
reflect teachers’ distribution of students per School. High School math intervention teacher
Kelly Walters testified that upon reviewing the allocation chart that was received in evidence
regarding her department, she was surprised to learn that it showed 100 percent of her student
allocation belonging to CAVA at San Diego during September 2014. According to Abston’s
testimony regarding the purpose of the allocation charts, CAVA at San Diego should have
been responsible for paying 100 percent of Walters’s salary. It was unrefuted, however, that
during the fall of 2014, Walters had students from CAVA at Los Angeles, CAVA High School
at Maricopa, CAVA at San Joaquin, CAVA at San Mateo, CAVA at San Diego, CAVA at
Sonoma, CAVA at Kings, and CAVA at Jamestown. Given this student distribution, it was not
explained during the hearing why the allocation chart from the same time period showed
Walters servicing 100 percent of students from CAVA at San Diego. Special Education
teacher Hodge testified similarly about the inaccuracy of her student distribution on the
relevant allocation chart.
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Schools are also separately billed for and pay for required teacher professional
development. When teachers must travel to regional or statewide meetings, all Schools are
billed proportionally for teachers’ travel expenses. The Schools pay these expenses out of their
individual budgets set aside for professional development. At least one professional
development meeting for management discussed during Abston’s testimony was paid for
entirely by one School. Abston explained that the reason for this was because the School
received services from all of those management employees or at least received common
benefits.
6. 	Accreditation and Reporting
a. 	Accreditation
The Schools’ academic programs are individually accredited by the Western
Association of Schools and Colleges (WASC). In 2014, the Schools prepared a lengthy,
written “self-study” as part of the WASC review process. That year, all of the Schools
prepared a combined self-study report in one document. Teachers and administrators across
the CAVA system worked together in committees assigned to report on specific areas of the
review process. In previous review cycles by WASC, each School prepared its own self-study
report. Abston explained that this change was initiated by WASC officials to cut costs and
time, and the Schools agreed with that objective.45
45 On January 4, 2013, Dr. Lee Duncan, WASC’s Associate Executive Director, sent
Abston a message by e-mail regarding the WASC accreditation plan, which was received in
evidence. It states:
All nine academies went through separate initial visits and full
accreditation visits in November 2009. They were treated as
separate schools because they had separate CDS #s. Because the
schools were all directed from one site in Simi Valley, a team of
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10 WASC educators was gathered to perform 9 separate
accreditation visits on the same site at the same time.
[¶ …¶]
Even though there are nine different chartering districts, the school
operates as one school, with one administration, one curriculum,
one instructional program, and one assessment process.
On cross-examination, Abston disagreed with Dr. Duncan’s statement that the Schools
are directed from one site. She countered that there are no instructional programs that occur at
that site, i.e., the Simi Valley office. She also disagreed with the statement that the Schools
operate as one with one administration. While we have not relied on the statements in the
above-quoted e-mail message in reaching our conclusion, we observe that WASC and PERB
view CAVA Schools similarly, as presenting as a single entity from an administrative and
operational standpoint.
b. 	Reporting
Once per year, each School must individually submit data to the DOE about the
condition and performance of the School through a report called the School Accountability
Report Card (SARC). Thus, 11 SARCs are submitted each year, one for each of the CAVA
Schools. All 11 are prepared by Laura Terrazas, CAVA’s Dean of Student Services. The
SARC is filed under a School’s unique CDS code and tracks, among other things, the School’s
academic progress, student enrollment and demographics, standardized testing results, and
financial and employee data.
Abston is referred to on each SARC as the “superintendent” of the School, even though
that is not her official title. This nomenclature is consistent with the Schools’ charter
documents that note that the Head of Schools performs duties consistent with that of a public
school superintendent. The physical address, e-mail address and phone number for each
School is the same on all 11 SARCs. The District contact information for each School,
including the phone number and the website, is the same, and the District for each School is
identified as “California Virtual Academies” on all 11 SARCs. The School Description and
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Mission Statement, containing information about the school, programs and goals, is the same
on all 11 SARCs as are the sections on parental involvement, curriculum and instructional
materials, and instructional planning and scheduling. Each of the 11 SARCs describes school
facilities as follows: “CAVA is a non-site based facility,” rather than referring to an
individually-named CAVA School. The sections of the SARC that differ from School to
School, generally speaking, pertain to student matters, such as standardized testing and student
performance results, academic performance index growth and student enrollment and class
size.
For Special Education, each School has multiple reporting requirements that are
submitted to the state by the Schools through the SELPAs to which they belong.
7. 	Management Structure
a. 	Chain of Command
All 11 Schools have a common, CAVA-wide management structure that is organized
by content divisions and grades as follows: General Education (High School Department,
Middle School Department, and Elementary Education Department), and Special Education
(K-8 and High School).46
46 There was some reorganization within both General and Special Education programs
during the year preceding the formal hearing. These changes were accomplished without the
approval or involvement of Abston or the Boards, and were initiated by department directors
and/or coordinators, whose roles are discussed further below. What is described here is the
current organizational structure. The record contains somewhat more detailed information
regarding the organization of the General Education program than it does for Special
Education.
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Abston, who, as a reminder, is a K12 employee, is the person to whom every employee
across all divisions of every CAVA School ultimately reports.47 Abston is the only K12
employee who is included in the management chain of command for the Schools. Abston
signs employment contracts for all CAVA teachers. Abston and the financial department
47 In CAVA Exception No. 4, CAVA disputes that Abston is “the only person” to
whom every CAVA School employee ultimately reports, citing examples of
“decisionmaker[s]” below her in the chain of command. The ALJ did not find that Abston is
“the only person” to whom CAVA Schools’ employees report, or the only decision-maker in
the chain of command. While managers and supervisors below Abston in the chain of
command have decision-making authority over certain personnel and other matters, Abston is
nonetheless at the top of the reporting hierarchy. Teachers, the lowest in the chain of
command, sign employment contracts, which state:
II. 	DUTIES, RESPONSIBILITES AND QUALIFICATIONS
A. 	Reporting. Employee shall report to the Head of
School (“HOS”) or designee and will perform the duties
set forth in this Agreement and such other duties as may
be assigned from time to time by the HOS or designee.
The HOS maintains the discretion to take all necessary
employment actions.
CAVA Schools interposes a similar exception in CAVA Exception No. 5, asserting that
each CAVA School is “managed” and “govern[ed]” not by Abston, but by its own Board of
Directors pursuant to charter documents, bylaws, employment contracts and service
agreements. In determining that, as a matter of law, there is a single employer relationship
between CAVA Schools and the employees in the petitioned-for bargaining unit, there is ample
evidence that CAVA Schools operate in a centrally managed way, rather than independently
and autonomously, as suggested by statements and recitals in the documents relied on by
CAVA. CAVA Exception Nos. 7 and 8 are rejected for the same reason.
CAVA Exception No. 6 is similar. It excepts to the ALJ’s finding that “some kind of
centralized control” over labor relations “may be presumed” given that all CAVA Schools
have adopted the exact same terms and conditions of employment. CAVA mischaracterizes
the PD. After observing the unbroken chain of uniformity in employment conditions across all
CAVA Schools, the ALJ stated: “If there were not some kind of centralized control, one would
expect to see some variance in employment terms between the Schools. But there is none.”
(PD, p. 62, emphasis in the original.) This statement is neither ambiguous nor unsupported by
the evidence, as CAVA asserts.
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determine the merit increases for all CAVA teachers each year based on the scores they
received from their evaluators.
For the General Education program, April Warren is the “Academic Administrator”
for all 11 Schools.48 Warren reports directly to Abston. Warren did not testify, but
Abston described her as being responsible for analyzing the “[e]valuation of scores for each
School . . . [¶] . . . and disaggregation . . . [¶] . . . of scores” but clarified she was not responsible
for overseeing curriculum. (R.T., Vol. I, p. 42.) The scores that Warren evaluates were not
further described in the record nor were her other duties described in great detail.49 Warren has
an employment contract with CAVA at San Diego.
Directly reporting to Warren are the two Directors of High School, Cathy Andrew and
Mina Arnold; the Director of Middle School, Deanna Haynie; and the Director of Elementary
Education, Amy Maxwell. These directors have employment contracts with particular
Schools, but provide services to all of them as applicable to the grade-level offerings at each
School. Directors are generally responsible for overseeing the academic program covering all
staff and students. Within each department, several RPCs report to the appropriate directors of
their departments. As discussed in more detail below, RPCs have wide discretion to make
hiring and firing decisions. RPCs also determine teachers’ assignments to regional teams,
which in turn determine lines of supervision. RPCs assign students to teachers for homerooms
and content areas. RPCs are required to attend several Board meetings per year. RPCs, like
48 Warren also has some oversight responsibility over Special Education programs, but
as discussed below, Special Education has a distinct chain of command from General
Education.
49 In December 2014, Warren presented a new “Parent-Student Handbook” to the
Boards for approval and she was also involved in drafting the 2014 WASC self-study report.
36

other management employees (except Abston) and teachers, have employment contracts with a
particular School. RLTs report to RPCs. Teachers report directly to RLTs.
The titles of positions in the Special Education program differ from those discussed
above. For the Special Education program, statewide Dean of Students Terrazas, is the lead
administrator for all 11 Schools. Terrazas reports to Abston, and also has some reporting
responsibilities to Warren. Abston described Tearrazas’s reporting requirement to Warren as a
“dotted line,” but the specifics were not explained. Reporting to Terrazas are two Directors of
Special Education (K-8 and High School) and a Director of Categorical Programs. Program
Specialists report to the Directors of Special Education, and Regional Education Specialists
report to Program Specialists. Special Education teachers report to Regional Education
Specialists. Reporting to the Director of Categorical Programs is the Coordinator of
Intervention. Intervention Lead Teachers report to the Coordinator of Intervention.
Intervention Teachers report to Intervention Lead Teachers. All of the Special Education
management and supervisory employees, again except Abston, are employed by particular
Schools.
b. 	Regional Campus Organization, the Community Day Program, and Teachers’
Supervision
The CAVA statewide Elementary Education Department, headed by Director Maxwell,
is organized into North, Central, and South Campuses. Each Campus consists of multiple
Schools that are in close regional proximity to one another and has one RPC overseeing its
operations. Four RLTs report to the RPC assigned to North Campus, and five RLTs report to
each of the RPCs assigned to Central and South Campuses.
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The CAVA statewide Middle School Department, headed by Director Haynie, is
similarly organized into North, Central, and South Campuses. Each Campus has one RPC,
with four RLTs reporting to each RPC.
The CAVA statewide High School Department, headed by Directors Andrew and
Arnold, is organized into four regional Campuses. “Campus 1” includes CAVA at Sonoma,
CAVA at San Mateo, and CAVA at San Joaquin. “Campus 2” includes CAVA at Jamestown,
CAVA at Kings, and CAVA High School at Maricopa. “Campus 3” consists of CAVA at
Los Angeles, and “Campus 4” consists of CAVA at San Diego. Director Arnold oversees
Campuses 1 and 3, and Director Andrew oversees Campuses 2 and 4. Each Campus has one
RPC with three RLTs reporting to each RPC. The High School Department also has four
Curriculum Specialists and two Teachers of Training and Support that provide oversight and
assistance for all campuses. Approximately eight Guidance Counselors serve all CAVA High
School students in the state.
The Community Day program provides an option for CAVA students to meet in-
person, once per week, with other CAVA students and a teacher, and to have the remainder of
their instruction provided online. Leah Fellows is the Director of Community Day. Three
RLTs report directly to Fellows. Bailey, employed by CAVA High School at Maricopa, was
formerly an RPC and is currently a Community Day teacher.50 Bailey’s content area
specialization is science. She testified that there are approximately 15 sites throughout the
state hosting Community Day students, and that all sites accommodate at least K-8 students.
Bailey’s Community Day site is located in Redlands and includes High School students.
Students are grouped into classrooms by grade level as follows: K-1; 2-3; 4-5; 6-8; and 9-12.
50 Bailey was an RPC for several years. In late October 2014, Bailey decided to
voluntarily demote from a management position to a teaching position.
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Her students are split between those from CAVA High School at Maricopa (two-thirds) and
CAVA at San Diego (one-third). Students come to the Redlands location on Tuesdays and
Thursdays.
The regional Campus organization described above typically, but not always,
determines the lines of supervision for teachers based on the campus to which the teacher’s
contract-holding School is assigned. The Schools’ common management teams have the
ability to assign a teacher to report to a different RPC and/or RLT than would be determined
by the teacher’s contract-holding School’s campus placement. While reviewing a document
(Petitioner’s Exh. 5) showing the High School Department’s regional campus structure, and
trying to determine from the document to whom teacher Jennifer Shilen would report, Abston
described the inherent flexibility in the process of determining supervision:
Q 	Okay. So at least based on P-5, and I really don't
mean to confuse things. I really am trying to understand, because
I'm fairly new to this as well. But looking at P-5, if I understand
how CAVA functions, Jennifer Shilen is -- has a contract out of
Sutter. According to P-5, Sutter is Campus Two, correct, a
Campus Two assignment?
A 	Correct.
Q 	Okay. So according to the High School structure,
Jennifer Shilen should be supervised by [one of the Campus Two
RLTs,] either Francine Bailey, Loretta Gilbert, or Nick Stecken,
correct?
A 	If it was based on the students, correct. This is not
a Board-adopted document or anything. So again, there’s
complete autonomy within what is going on here for them to do
what best suits the students.
Q 	Them who?
A 	The teachers, the administrators, the RLTs, the
RPCs. I’m not going to tell them, like, I’m sorry, you have a
39

contract from here, you must be here. It’s going to be the best
suited for what’s needed for those students.
Q 	Okay. So what you're telling me, and I think we’re
getting somewhere, what you're telling me is that P-5 may not
actually be correct with respect to matching up teacher
assignment to a campus.
A 	I think that’s what I just said, yes.
(R.T., Vol. I, pp. 168-169.)
Because each teacher, supervisor, and manager (except Abston) holds an employment
contract with a particular CAVA School, it is often the case that the RLT and RPC to whom a
teacher reports has an employment contract with a different School than the teacher.
Especially in smaller Schools, according to Abston, it would be “fiscally irresponsible” for
them to hire all of the positions that are needed to offer the instructional program, “so they
share services just like small districts outside of our schools share services all the time.” (R.T.,
Vol. IV, p. 208.) Teachers in smaller Schools will also have assigned homeroom students
outside of their geographic area and contract School because otherwise they may be considered
part-time. For example, there is only one Middle School teacher holding an employment
contract with CAVA at Jamestown because there are only 15 Middle School students enrolled
at that School, which is under the minimum threshold required for full-time employment.
Thus, the Middle School teacher there takes homeroom students from CAVA at San Joaquin
and CAVA at Jamestown to maintain full-time status.
Terms and Conditions of Employment for Teachers
At the time of the formal hearing, the CAVA Schools collectively employed
approximately 700 teachers. The shared employment conditions of all CAVA teachers
statewide as discussed below are essentially undisputed.
40

1. 	Hiring
Teachers desiring to work at a CAVA School complete an online application through
the website EdJoin. Some CAVA job postings advertised on EdJoin denote a specific School
at which there is a vacancy, while most others do not indicate a specific school. Teacher
Shilen testified that when she applied for employment in the CAVA system she was not aware
that she was to be employed by a particular School, or that multiple Schools existed. Rather,
she believed that she was applying to work for CAVA in general. The only requirements she
remembered were that applicants for CAVA teaching positions be appropriately credentialed
and live in California. She later learned that she had been hired by CAVA at Sutter when she
received her employment contract and pay checks. In September 2014, only 1.53 percent of
Shilen’s students were enrolled at CAVA at Sutter. Similarly, Special Education teacher
Hodge testified she only learned that she was employed by CAVA at San Joaquin when the
authorizing school district holding the School’s charter changed. Hodge did not believe that
her initial employment contract stated it was between her and a particular School. Hodge’s
initial employment contract was not introduced in the record.
Abston explained why some EdJoin job postings list a specific CAVA School and some
do not as follows. If it is a larger school (like CAVA at Los Angeles or CAVA at San Diego,
for example) that can afford a full-time staff person or if there is a specialty program within a
School, then the posting would specify it was for that School. Otherwise, the teacher applicant
goes into a “candidate pool to service one of the [CAVA Schools] or one of the other K12
managed schools.” (R.T., Vol. IV, p. 202.) A teacher candidate’s placement in an eligibility
pool is largely based upon the county in which the candidate resides. Middle School Director
Haynie testified that once a candidate had been selected, “[w]e ask[ed] that they be placed in a
41

particular school depending on where they live and the need of the students in that area.”
(R.T., Vol. III, pp. 114-115.)
Bailey testified to her experience regarding hiring decisions when she served as an
RPC. The RPCs and department directors determine, based on student enrollment, when a
teacher needs to be hired. Sometimes RLTs consult in this process as well. The School’s
Board did not have to pre-approve an RPC’s recommendation to create a job posting. From
EdJoin applications, Insperity created a spreadsheet of eligible candidates categorized by
subject matter. If Bailey needed to hire a math teacher, she could view all of the candidates
who were qualified to teach math, and then select those candidates from the list that she
wanted to interview. Bailey would typically ask an RLT to sit in on interviews of the
candidates. After Bailey made a decision to hire one of the interviewed candidates, she would
notify Insperity and Human Resources Administrator Johnen to process and complete the new
employee’s paperwork. Johnen extends written job offers on behalf of an RPC, but Johnen
herself does not participate in the hiring decision-making process. A School’s Board approves
the RPC’s hiring decision after an employee has been hired and already has started working.
As discussed previously, all 11 Schools utilize the same employment contract for teachers,
with the only differences being found in the rate of pay based on experience level and in the
duty statements by grade level and content area. Returning teachers must sign a new contract
every year. Johnen handles that process for all CAVA Schools’ teachers.
2. 	Pay and Benefits
There is one certificated salary scale that has been adopted by the Boards of all 11
Schools. The levels of teachers’ health and welfare benefits were not specifically described in
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the record, but the identical employee contracts used by all Schools describe the benefits
offered to teachers by the Schools in the same terms.
3. 	Work Year and Hours
There is a common academic calendar for all 11 Schools, which determines, uniformly,
the number of days per year teachers are expected to work. Hours of work for all teachers are
8:30 a.m. to 4:00 p.m., Monday through Friday. When a teacher needs to be absent from work,
they use a “Sub Tool Kit” to alert CAVA’s Human Resources department, which then arranges
a substitute teacher. Holidays are uniformly set forth in the common employment agreements
utilized by all of the Schools.
4. 	Equipment and Technology, Employment Handbooks and Forms
All teachers are issued a computer that is paid for by the School issuing their
employment contract. There is one online technology support contact statewide:
westhelp@k12.com, and one technology support manual. Real-time virtual meetings and
instructional sessions are accomplished using “Blackboard Collaborate” software.
“SharePoint” is a website that all teachers may access to view information regarding
employment policies and procedures, training, required forms and notifications from Human
Resources, and some student records. All employment-related forms, such as the form for
requesting time off, are the same across the Schools.
All teachers are issued a common employee handbook, compiled by Insperity, which
instructs employees regarding policies and procedures. All employment policies and
procedures are the same in all Schools. Receipt of the handbook must be acknowledged in
writing by employees. The handbook notes that only the Head of Schools or an Insperity
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officer has the authority to change an employee’s at-will status or enter into employment
agreements for specified time periods.
5. 	Duties
a. 	Staff Meetings/Professional Development
A series of mandatory, online staff meetings are customarily held every Monday for all
teachers. Typically, one of these meetings per month is an all-staff meeting by department.
The all-staff meeting can be run by Directors, RPCs, and/or RLTs, working in conjunction
with each other. There are more frequent regional meetings with an RLT and teachers
assigned to the RLT.51 Approximately once per month, Curriculum Specialists conduct a
content meeting for teachers. During periods of standardized state testing, teachers meet
within their regional teams to prepare.
Teachers are also periodically required to attend, in-person, Professional Development
meetings/trainings. In 2013, for the first time, all CAVA teachers gathered together in one
location for a Professional Development meeting. In 2014, all teachers participated in separate
regional Professional Development meetings at the beginning of the school year. When the
Schools are preparing for mandatory state testing periods, teachers are required to attend
virtual and in-person meetings by Departments and regions.
b. 	Homeroom Attendance Records
Student attendance is calculated separately per School. All teachers who have a
“caseload” (i.e., students for whom they are responsible for providing instruction) are required
to submit weekly attendance reports. All teachers, whether employed in the General or Special
51 The discussion here pertains to the General Education program, but Special
Education teacher Hodge also testified to equivalent meeting requirements within the Special
Education program.
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Education programs, have assigned Homeroom students. Teachers only need to take
attendance for their Homeroom students.
c. 	Instruction
Abston testified that there is little direct, day-to-day supervision regarding the manner
in which teachers determine to deliver instruction to their students. All CAVA teachers use the
same K12 curriculum. Teachers have academic freedom to supplement the K12 curriculum as
they see fit. Certain number of hours of live (real-time), virtual instruction are required to be
provided per day. Even when not performing periods of live instruction, a teacher is
nonetheless required to be available for professional duties during the contract hours of
8:30 a.m. to 4:00 p.m., Monday through Friday. All teachers are required to hold
Individualized Learning Plan conferences at the beginning of each school year with their
students to discuss and plan academic goals.
d. 	In-person Meetings with Students and Parents
Teachers are required to meet, from time-to-time, with their students and/or with
parents.52 All teachers are also required to be physically present with students during periods
of state standardized testing. For this reason, CAVA administrators try to assign teachers to
students that are located within close geographic proximity to each other. The frequency with
which teachers are required to hold in-person meetings varies widely based on grade-level, and
also by the specific needs of students. For example, there was testimony that teachers at the
Elementary Education level are required to meet in-person with students four times per year,
but there have been more frequent in-person meetings, even weekly, where a particular student
required it. Middle School teachers are required to meet in-person with students three times
52 This discussion does not apply to the Community Day program, which, as previously
stated, has unique in-person components.
45

per year. High School teacher Cara Bryant testified that she only meets in-person with
students during state testing periods. Abston testified that High School teachers are expected
to hold outings with students and their families, but not all do. High School teachers are asked
to attend any one of five graduation ceremonies held across the state. In-person meeting
requirements are suspended and a “remote” teacher is assigned if there are no qualified
teaching candidates that can be hired within a close distance to students in a particular area.
e. 	Submitting Grades and Access to Students’ Records
Semester grades are submitted at the same time by teachers across all Schools. Some of
the information in the record regarding teachers’ ability to access student records, including
grades, was slightly inconsistent. According to Bryant, through SharePoint, teachers can view
student enrollment data, including student identification numbers, personal contact
information, and class assignments for all Schools in the CAVA system, but teachers’ access to
grades is usually limited to their own students. According to Bailey, however, teachers can
also view student grade information for any of the other teachers assigned to their own RLT.
Bailey had some responsibility in the year preceding the hearing for setting access level
permissions in SharePoint. Special Education teacher Hodge testified that she has access to the
grades of every Special Education student statewide, even for those students over whom she
does not have any responsibility.
6. 	Performance Evaluations
Elementary Director Maxwell, Middle School Director Haynie, and Bailey, because of
her experience as a former-RPC in the High School Department, all testified regarding the
process of evaluating teachers’ performance. First, a teacher completes a self-evaluation,
including recording a video segment of live instruction and providing a lesson plan for that
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instruction session, self-rating their overall performance (including the video segment), and
summarizing student data. The teacher’s RLT then rates the teacher’s self-evaluation video
segment. An RPC, or in some cases, a Curriculum Specialist, completes the final evaluation
rating after receiving the teacher’s self-evaluation and the scores from the RLT. RPCs decide
whether to assign Curriculum Specialists’ evaluation duties. According to Haynie, an RPC’s
evaluation of a teacher is final and those ratings are not disturbed by Department Directors.
Maxwell confirmed the formal evaluation process described above, but added that teachers are
also informally evaluated throughout the year including observations and feedback by RLTs,
RPCs, Curriculum Specialists, or Directors. All of the forms and protocols used in evaluations
are the same for the Elementary Education, Middle School, and High School departments.53
The teacher evaluation process is the same across Schools within each department.
7. 	Discipline/Firing
Bailey testified that when she was an RPC, teacher misconduct usually first came to her
attention through an RLT. She and the RLT then conducted an investigation as warranted by
the situation. Progressive discipline was always issued unless the conduct was something
particularly egregious. She would consult with Insperity if she was unsure of what level of
discipline was appropriate. Insperity would then advise her, but she made the final call in that
regard. As an example of this, Bailey believed in one instance that a teacher should receive a
written warning, where Insperity was recommending only a verbal warning. Insperity deferred
to her judgment and Bailey issued written discipline to the teacher. Haynie also testified
53 The evaluation process for Special Education was not specifically described in the
record.
47

regarding the discipline process, and confirmed that RPCs are the initial decision-makers
regarding employee discipline matters and that they may consult with her and Insperity over
the process as needed. Haynie said that RLTs do not make discipline decisions. There is also
no evidence in the record that Abston was ever a decision-maker in a teacher termination or
disciplinary case, although she did testify to participating in phone calls delivering news to
employees that their employment was terminated.
Bailey personally terminated the employment of around four or five teachers during her
time as an RPC. In a specific case discussed during the formal hearing, she communicated the
termination decision to the teacher in a conference call with Insperity and CAVA’s Human
Resources Administrator Johnen also participating. For the first year or two that Bailey was an
RPC, Johnen was the one who actually delivered the termination news, but during her final
year in the position she was informed that RPCs had to take over that responsibility. That
directive was discussed during a weekly RPC/Director teleconference. Bailey understood that
employees were terminated from employment as of the date of the phone call informing them
of the decision. Fired employees ceased providing services to the Schools, received their final
paychecks, were paid out any leave balances, and had to return their computers and all other
School-issued equipment at that time. Bailey also understood based on her attendance at
Board meetings that the School’s Board ultimately ratified the termination decision after-the-
fact. There is no appeal process for employment termination across all CAVA Schools.
Because of the degree of shared services among all of the Schools, including the
common management teams by department, Abston admitted during discussion of a
hypothetical scenario that the School’s Board holding a teacher’s employment contract can
take action to approve an employment termination decision even though none of the
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circumstances surrounding the termination involve the services provided by that teacher to that
particular school. The hypothetical supposed that teacher Shilen, who is an employee of
CAVA at Sutter, was accused of misconduct involving one of her students from CAVA at
Kings. The hypothetical further presumed that Shilen’s RLT (who holds an employment
contract with CAVA at Sonoma) discovered the misconduct and reported it to Shilen’s RPC
(who holds an employment contract with CAVA at San Diego). Abston confirmed that under
this scenario, if it was determined that employment termination was warranted, only the
CAVA at Sutter Board would take action to ultimately approve the termination decision. The
CAVA at Kings Board would have no role or input, despite that the alleged misconduct
involved one of its students. (See R.T., Vol. II, pp. 33-41.) Incidentally, while the alleged
misconduct was entirely fictional, the employment status of Shilen and those to whom she
reports is the same in reality as it was posed in the hypothetical.
DISCUSSION
Before reaching the representation issue of whether the petitioned-for bargaining unit is
appropriate, we must first decide the threshold issue whether the 11 CAVA Schools operate as
part of a single integrated enterprise, as CTA posits, or as 11 legally separate entities governed
by their own local governing bodies, as CAVA posits. CTA argues that the single employer
doctrine applies because CAVA Schools share a common management structure with Abston
at the top of the hierarchy, the operations of the Schools are functionally integrated and the
terms and conditions of employment are uniform and centrally controlled.54 CAVA argues
that the single employer doctrine does not apply because each CAVA School is locally
54 All but the first of CTA’s eight exceptions concern the ALJ’s rejection of CTA’s
single employer analysis. CTA Exception No. 1 is addressed in footnote 32, ante. Because we
agree that the single employer doctrine applies, we need not describe or address the remainder
of CTA’s exceptions.
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controlled by an autonomous Board of Directors as reflected in the charter documents, bylaws
and contract documents, and disagrees that the factors required for establishing single
employer status have been met.
Preliminarily, we clear from our path two main side issues that were raised before, and
addressed by, the ALJ concerning the burden of proof and the Charter School Act.55
55 In the category of other side issues, CAVA Schools argue that CTA’s petition for
recognition by “California Virtual Academies” is deficient on its face, and should be dismissed,
because “California Virtual Academies” does not meet the definition of a legally recognized
employer under EERA. As the ALJ found, CTA named the “Academies” in the petition, which
reasonably can be read to encompass the network of the 11 Schools, each of which falls within
EERA’s definition of employer. (PD, p. 40, fn. 41; EERA, § 3540.1, subd. (k) [“‘Public school
employer’ or ‘employer’ means . . . a charter school that has declared itself a public school
employer pursuant to subdivision (b) of Section 47611.5 of the Education Code.”].) CAVA
Schools, through its counsel of record, responded to CTA’s petition for recognition expressly on
behalf of all 11 Schools. There appears to be no confusion concerning the identity of the “eleven
employers [CTA] sought to organize.” (CAVA Schools Opening Brief, p. 16.)
CAVA Schools also argue that CTA “improperly seeks to enmesh a private company and
its employees in the Board’s processes” by naming K12-employed Abston in the petition rather
than CAVA School Board members. CAVA Schools warn, “[a]ssertion of jurisdiction over non-
public entities is to be carefully avoided by the Board.” (CAVA Schools Opening Brief, pp. 15-
16.) Abston is named on the petition as “Employer’s agent to be contacted,” not as employer.
Our jurisdiction over this matter is a non-issue. As the ALJ found:
There is no question that Abston is an agent of all of the Schools, as
the record is replete with evidence that she possesses both actual
and/or apparent authority to act on the Schools’ behalf, e.g., she
executes employment contracts for the Schools and was the
authorized representative on each of the Schools’ charter documents.
The test for agency was recently framed by PERB this way: “in
Compton Unified School District (2003) PERB Decision No. 1518,
the Board described the test as ‘whether the perception of agency is
reasonable under the Circumstances’ and cited with approval
National Labor Relations Board (NLRB) case law: ‘whether under
all circumstances, employees would reasonably believe that the
employee in question [the alleged agent] was reflecting company
policy and speaking and acting for management.’” (Santa Ana
Unified School District (2013) PERB Decision No. 2332, p. 9;
citations omitted.) Employees would reasonably believe in this case
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in all circumstances that Abston was reflecting company policy and
speaking and acting for management.
(PD, p. 71, fn. 59.)
CAVA Schools did not except to this finding. Exceptions not specifically urged are
waived. (PERB Reg. 32300, subd. (c).) Moreover, the ALJ’s finding is fully supported in the
record, and no further commentary is necessary except to make perfectly clear that the mere
presence of K12, a private company, in this controversy is no impediment to PERB’s exercise
of jurisdiction. Whether the representation petition involved one CAVA School or all 11, the
role played by K12, particularly through Abston, is the same by design, and key to
understanding the employer status issue. K12 is a purveyor of services, not the employer of
the certificated teachers in the proposed bargaining unit.
EERA section 3545, subdivision (a), requires PERB, in each instance where the
appropriateness of the sought-after unit is at issue, to decide the question based on “the
community of interest between and among the employees and their established practices
including, among other things, the extent to which such employees belong to the same
organization, and the effect of the size of the unit on the efficient operation of the school
district.” The same section at subdivision (b)(1) establishes a statutory presumption that all
certificated employees of a “public school employer” should be included in a single bargaining
unit. (Emphasis added.) The Board in Peralta Community College District (1978) PERB
Decision No. 77 (Peralta) interpreted these sections of EERA as follows:
There seems to be little doubt that the Legislature meant to
minimize the dispersion of school district faculty into
unnecessary negotiating units. It is apparent that unit
configurations based on geographical, or campus considerations,
or split along lines of academic disciplines and teaching
specializations are proscribed by subsection (b)(1). But that is
not to say that the Legislature rejected the possibility that critical,
negotiation-related differences between groups of teachers might
compel unit separation. We believe that to reduce those
possibilities the Legislature directed this Board to combine all
classroom teachers into a single unit except where an issue of
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appropriateness is raised and the requirements of subsection (a),
which are then invoked, leave the Board with no other option.
Reading subsection 3545 (b) together with its companion
subsection (a) gives rise to the presumption that all teachers are to
be placed in a single unit save where the criteria of the latter
section cannot be met. In this way, the legislative preference, as
the Board perceives it, for the largest possible viable unit of
teachers can be satisfied. Thus, we would place the burden of
proving the inappropriateness of a comprehensive teachers’ unit
on those opposing it.
(Id. at pp. 9-10, emphasis added.)
In this case, in order to reach the question of whether the “statewide” unit is appropriate
and to apply the attendant burden of proof under Peralta on the Schools who oppose it, it must
first be determined whether CAVA meets the statutory definition of an employer under EERA.
In answering the latter question, the burden of proof rests on CTA as the petitioner under
EERA section 3544. (See Turlock School Districts (1977) EERB56 Order No. Ad-18
(Turlock), pp. 3-4 [the burden of proof on the issue of whether two school districts could be
considered a single employer or joint employer of a common group of employees so that a
single unit of those employees could be determined appropriate was on the petitioning unions
seeking recognition under EERA section 3544].)
EERA section 3540.1, subdivision (k) includes in its definition of public school
employer: “a charter school that has declared itself a public school employer pursuant to
subdivision (b) of Section 47611.5 of the Education Code.” As discussed previously,
Education Code section 47611.5, subdivision (b), of the Charter School Act, provides in part:
A charter school charter shall contain a declaration regarding
whether or not the charter school shall be deemed the exclusive
56 Prior to 1978, PERB was known as the Educational Employment Relations Board or
EERB.
52

public school employer of the employees at the charter school for
the purposes of Section 3540.1 of the Government Code. . . .
(Emphasis added.) PERB must take into account the mandates of the Charter Schools Act
when deciding cases under EERA involving charter schools. (Ed. Code, § 47611.5, subd. (d);
Chula Vista, supra, PERB Decision No. 1647.)
CAVA Schools argue that each School’s status as an “exclusive public employer”
under the Charter Schools Act precludes PERB from applying judicially-developed doctrines
that allow ostensibly separate employer entities to be treated as a joint or single employer.
CAVA School’s argument is unpersuasive for several reasons.
CAVA Schools is correct that each School has the status of an “exclusive public
employer” under the Charter Schools Act. Under Education Code sections 47605,
subdivision (b)(6), and 47611.5, subdivision (d), of the Charter Schools Act, a charter petition
must elect whether the charter school or the authorizing public school district shall be
considered the exclusive public school employer of the charter school’s employees for
purposes of EERA. It takes no particular expertise in the Education Code to understand that
this designation is intended to determine which entity — the charter school or the authorizing
district — will carry the responsibility for complying with the requirements of EERA, i.e., the
duty to bargain the terms and conditions of employment with the exclusive representative of
the employees’ choosing. There is no indication that the Legislature, by requiring this
designation in the charter petition, intended to impede PERB in its determination of matters
uniquely within its own expertise, such as the issue here whether the 11 CAVA Schools
together under the single employer doctrine operate as a single integrated enterprise and meet
EERA’s definition of “[p]ublic school employer” for representation and collective bargaining
purposes. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983)
53

33 Cal.3d 850, 856 [the expertise of quasi-judicial labor agencies such as PERB entitle those
agencies to considerable deference]; Banning Teachers Assn. v. Public Employment Relations
Bd. (1988) 44 Cal.3d 799, 804 [PERB is one of those agencies presumed equipped or informed
by experience to deal with a specialized field of knowledge].)
CAVA Schools relies on Mississippi v. Louisiana (1992) 506 U.S. 73 in support of its
argument. In Mississippi v. Louisiana, the United States Supreme Court held, “[t]hough
phrased in terms of a grant of jurisdiction to this Court, the description of our jurisdiction as
‘exclusive’ necessarily denies jurisdiction of such cases to any other federal court.” (Id. at
p. 77, emphasis added.) Borrowing certain words from this holding, CAVA asserts: “[T]he
Education Code’s designation of a charter school as the ‘exclusive’ employer ‘necessarily
denies’ that status ‘to any other’ entity.” (CAVA Schools Responsive Brief, p. 8.) While true
that CAVA Schools’ exception contains some of the same words found in the Supreme Court
holding, all of the remaining words in Louisiana v. Mississippi provide the missing context.
Mississippi v. Louisiana involved a lawsuit in the United States District Court for the
Southern District of Mississippi between private parties concerning title to land riparian to the
Mississippi River in which the State of Louisiana intervened and filed a third party complaint
against the State of Mississippi seeking to determine the boundary lines between the two states
in the vicinity of the disputed land. The Supreme Court held that the District Court had no
jurisdiction over the State of Louisiana’s third party complaint because United States Code,
title 28, section 1251(a) grants the United States Supreme Court original and exclusive
jurisdiction over all controversies between two or more states.
“[E]xclusive” in Louisiana v. Mississippi refers to the jurisdiction of the United States
Supreme Court over boundary disputes between the states. The Supreme Court’s exclusive
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jurisdiction deprives other courts from exercising their jurisdiction over such matters.
“Exclusive” in the Charter Schools Act does not speak to a jurisdictional grant of authority. It
refers to the designation made in a charter petition as to whether the charter school or the
authorizing public school district will be the public school employer for purposes of EERA.
CAVA Schools’ attempt to analogize a charter school’s collective bargaining obligations under
the Charter Schools Act to the United States Supreme Court’s jurisdiction over the states’
boundary disputes is of no avail.
Further, as the ALJ explained, in Alameda County Board of Education and County
Superintendent of Schools of Alameda County (1983) PERB Decision No. 323, the Board
found that EERA’s definition of public school employer:
like section 2(2) of the National Labor Relations Act (NLRA) [57]
is a jurisdictional definition identifying the types of agencies
subject to PERB jurisdiction. To determine whether an agency so
listed is an employer in a given instance, it is appropriate to
consider whether the alleged employer has such “sufficient
control over the employment conditions of its employees to
enable it to bargain with a labor organization as their
representative.” See National Transportation Service, Inc. (1979)
240 NLRB 565 . . . .
(Id. at p. 14, emphasis in original.) Thus, the Board recognizes its duty to determine, as a
threshold matter when employer status is at issue, if an employer is properly subject to PERB’s
jurisdiction by analyzing the degree of control it exercises over its putative employees. That is
in large part the analysis required here.
57 The NLRA is codified at 29 U.S.C. section 151 et seq. Although PERB is not bound
by the decisions of the National Labor Relations Board (NLRB) or the federal courts
interpreting federal law, cognizance of these authorities may be taken where appropriate as an
aid in interpreting identical or analogous provisions of the statutes administered by
PERB. (Office & Professional Employees International Union, Local 29, AFL-CIO & CLC
(Fowles) (2012) PERB Decision No. 2236-M, p. 14, fn. 10.)
55

Furthermore, Member Whitehead, in his concurrence in Ravenswood City Elementary
School District (2004) PERB Decision No. 1660 (Ravenswood), recognized PERB’s
responsibility in determining employer status in the charter school context:
It is this Board’s responsibility to determine the identity of the
public school employer for purposes of compliance with EERA.
With the recent proliferation of charter schools, this task has been
made more complicated. How a charter school complies with the
requirements discussed above may vary significantly from one
charter school to the next. Given that each charter school has its
own charter, it would be impossible to write a general rule that
would govern all occasions. I believe that each case must be
judged on its own merits to determine whether the “declaration”
was made in a manner that satisfies the Legislature’s
requirements.
(Id. at p. 5, emphasis added.) Notably, the majority opinion in Ravenswood did not actually
craft a bright-line rule that applies to determining employer status in charter schools; rather,
Member Whitehead was cautioning against doing so in reaction to the majority’s statements
that since it was “uncontested” that the charter school employer in the case had declared itself
to be the EERA employer (rather than the authorizing school district), and it had also asserted
that it had the sole ability to hire and fire, that the purposes of EERA were served by
concluding that it was, in fact, the employer. (See Id. at p. 3.) Member Whitehead opined that
since Education Code section 47611.5, subdivision (b), of the Charter Schools Act, does not
proscribe a particular manner in which a charter school is to go about its declaration of
employer status, it is PERB’s responsibility to determine whether the declaration is or is not
materially inconsistent with the charter to ascertain the proper EERA employer. (Id. at p. 5.)
Courts and PERB itself have recognized that PERB has the power and duty to
determine whether multiple employers meet EERA’s definition of a public school employer
over the same group of employees. In United Public Employees v. Public Employment
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Relations Bd. (1989) 213 Cal.App.3d 1119, the court found that PERB’s internally inconsistent
determinations of whether a community college district and the City and County of San
Francisco were joint employers was clearly erroneous and directed PERB to revert to its own
earlier finding of joint employer status of those entities. (Id. at pp. 1125, 1131-1132.) Thus,
the joint employer and single employer doctrines would be wholly unwarranted if it were not
possible to determine that, consistent with recognized tenets of statutory interpretation, more
than one public school employer can meet the definition of “employer” of the same group of
employees under EERA. (See Id. at pp. 1127-1128 for statutory construction analysis; see also
Plumas Unified School District and Plumas County Superintendent of Schools (1999) PERB
Decision No. 1332 (Plumas), p. 2, fn. 2 [although finding that the employers at issue were
separate, also making clear that “EERA section 3540.1(k) does not preclude the possibility of
two entities acting as a single employer or joint employer within the meaning of the EERA”].)
Accordingly, EERA’s definition of public school employer does not bar application of the
single or joint employer doctrine in the appropriate case.
The Single Employer Doctrine
A. Background
The distinct doctrines of single employer and joint employer are sometimes confused as
being interchangeable but they require distinct analyses. (Plumas, supra, PERB Decision
No. 1332, proposed dec. at p. 17.)58 In a seminal decision, the federal Third Circuit court
observed:
58 See, e.g., Turlock, supra, EERB Order No. Ad-18; Plumas, supra, PERB Decision
No. 1332. The single and joint employer doctrines are raised both in the context of
representation matters, as in Turlock and Plumas, and in the context of unfair practice cases.
(See, e.g. San Jose/Evergreen Community College District (2007) PERB Decision No. 1928
(San Jose/Evergreen).)
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[A]s the Supreme Court itself has recognized, the two concepts
approach the issue of “who is the employer,” from two different
viewpoints. As such, different standards are required for each—
that enunciated in Radio Union v. Broadcast Service of Mobile, Inc.,
supra,[59] to apply in the “single employer” context and that set out
in Boire v. Greyhound Corp., supra,[60] to apply in the “joint
employer” context.
(NLRB v. Browning-Ferris Industries of Pennsylvania, Inc. (3d Cir. 1982) 691 F.2d 1117, 1122
(Browning-Ferris-Pennsylvania).)
CTA urges that we apply the single employer doctrine. CAVA Schools urges that we
find each of the 11 CAVA Schools to be separate and distinct employers not subject to either
the single employer doctrine or the joint employer doctrine. Neither party advocates in favor
of the joint employer doctrine as its primary argument. Because we find that the single
employer doctrine applies, we turn our focus to that analysis, rather than also analyzing the
joint employer doctrine and our view of its inapplicability to the facts of this case.
It suffices to say that we do not view each individually-name CAVA School as an
independent entity that shares or codetermines, in any real sense, the terms and conditions of
employment of its own certificated teachers, let alone as an independent entity that shares or
codetermines the terms and conditions of employment of certificated teachers employed by
other individually-named CAVA Schools. We reject the joint employer doctrine for that
reason. Instead, we view the 11 CAVA Schools as collectively pooling the authority they
ostensibly possess under the aforementioned operative documents into a single integrated
enterprise that functions as the de facto employer of the entire certificated teacher workforce.
59 Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service
of Mobile, Inc. (1965) 380 U.S. 255 (Radio Union).
60 Boire v. Greyhound Corp. (1964) 376 U.S. 473.
58

For this reason, and the explanation that follows, we conclude that the single employer
doctrine applies.
Citing Radio Union, the Browning-Ferris-Pennsylvania court explained the standard
for determining single employer status:
A “single employer” relationship exists where two nominally
separate entities are actually part of a single integrated enterprise so
that, for all purposes, there is in fact only a “single employer.” . . .
In answering questions of this type, the Board considers the four
factors approved by the Radio Union court. (380 U.S. at 256,
85 S.Ct. at 877): (1) functional integration of operations;
(2) centralized control of labor relations; (3) common
management; and (4) common ownership. Thus, the “single
employer” standard is relevant to the determination that “separate
corporations are not what they appear to be, that in truth they are
but divisions or departments of a single enterprise.” . . .
(Browning-Ferris-Pennsylvania, supra, 691 F.2d at p. 1122.)
The issue of single or joint employer status was first considered by PERB in Turlock,
supra, EERB Order No. Ad-18. Turlock involved the following essential facts. Two school
districts—Turlock Joint Union High School District and Turlock Joint Union School District—
had operated for many years under a “common administration district” model. The districts
shared several high-level administrators, including a superintendent, but separately paid their
salaries. The terms and conditions of employment, including salary and benefits, were largely
the same, but were independently adopted by each governing board. There was a policy to
facilitate the inter-district hiring of certificated employees, but only a handful of certificated
and classified employees (16 out of 525) performed simultaneous duties in both districts.
Some facilities, equipment, and modes of student transportation were shared between them.
Before EERA was enacted, the districts had acted jointly in matters of labor relations. The
districts had different physical boundaries, separately elected and independent governing
59

boards, and separate budgets and tax bases funding those budgets. The Board considered those
facts under both federal doctrines of single employer and joint employer, and held that neither
finding was warranted because of the “plain meaning” of employer in EERA section 3540.1(k).
The Board stated:
[I]t is obvious that both the Turlock Joint Union High School
District and the Turlock Joint Union School District must be
viewed as separate employers under the plain meaning of the Act.
Where the language of a statute is clear, there is no room for
interpretation; it must be followed and effect must be given its
plain meaning. The Turlock School Districts are clearly separate
legal entities with separate governing boards. The fact that they
have chosen to share some administrators and a small number of
certificated and classified personnel can hardly lead one to
conclude that they are one employer. In fact, since the
certificated and classified employees customarily receive separate
checks from each school district, that is evidence of the separate
status of each governing board. Any other arrangements made
mutually and cooperatively by the two boards seem more a matter
of convenience than the result of any compelling legal authority
to do so.
(Id. at p. 14, fn. omitted, emphasis added.)
But even setting aside its statutory interpretation analysis and considering the material
facts, the Board in Turlock concluded that the districts there were not so interrelated as to be
considered either a single employer or joint employer under federal precedents. (Turlock,
supra, EERB Order No. Ad-18, p. 17.) The Board explained that it would be justified in
imposing higher standards than the NLRB for setting aside the districts’ separate legal status
since public sector employment involves “political entities that the Legislature has seen fit to
clothe with certain incidences of sovereignty” (Id. at p. 20), and emphasized that the separate
funding sources through separate tax bases of the two districts especially militated against the
Board finding in favor of single employer status. (Id. at pp. 25-26.) The Board also noted that
although the superintendent and top level administrators were common in both districts, they
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possessed no ultimate authority regarding personnel matters but always acted under the control
of the independent governing boards. (Id. at p. 19.) The Board further explained:
In the final analysis the existence of certain common
administrative facilities and equipment, a common salary
schedule, a common transportation system, and the employ of 16
common personnel, simply does not compare to the
overwhelming number of employees who are not employed by
both districts, who are not involved in any interchange or
interaction, who are not engaged in joint committees, who
perform services in totally separate environments, and who are
under separate fringe benefit programs. As stated quite
perceptively in the decision below, “The bargaining relationship
must be between employees and the employer who has control
over them.”
(Turlock, supra, at p. 24, fn. omitted.)
The Board’s next consideration of this issue came in Paso Robles Union School
District, et al. (1979) PERB Decision No. 85 (Paso Robles).61 This was actually two cases
consolidated on appeal regarding whether two school districts operating in Paso Robles, and
two school districts operating in San Rafael, should each be considered a single employer of its
respective employees. The districts in Paso Robles shared 41 employees and had separate and
independent governing boards that had, at times, consisted of the same members. The Paso
Robles districts operated from separate budgets with separate tax bases. There was a common
administration, including one superintendent. The San Rafael districts had a single governing
board because of a provision in the San Rafael city charter, but they operated from separate
budgets that were not comingled. A handful of common employees were shared between
them. The Board found that although NLRB case law would favor finding single employer
status in both instances, those authorities did not provide “appropriate guidelines” in this area.
(Id. at p. 8.) The Board explained:
61 A joint employer analysis was not explored in this case.
61

Meaningful negotiation can only occur where the employer has
the authority and ability to reach agreement with the duly selected
representative of its employees about those matters within the
scope of representation. In the instant cases, each district is
confined to the framework of its own tax base, budget and
revenue limits. The budgets of each district are kept strictly
separate and there is no comingling of funds. In each case, where
the districts share staff, facilities or equipment, there is a strict
apportionment of the expense between them. Each governing
board is a separate policy-making body responsible to different
constituencies. . . .
In the final analysis it is this separate economic status of each
district coupled with the exclusive policy-making authority of
each district which determines its ability to negotiate about those
matters within the scope of negotiations. . . .
(Id. at p. 10.) The Board then found each district to be separate employers. (Ibid.)
In Plumas, supra, PERB Decision No. 1332, the Board wholly adopted the proposed
decision of a hearing officer finding that an existing certificated bargaining unit should be
modified to remove employees employed by the county superintendent’s office from a unit that
also included employees of a school district, because the two employers could not be
considered either a single employer or joint employers. (Id. at p. 2, see also, proposed dec. at
p. 25.) The school district, in that case, exercised “some control” over approximately one-half
of the county superintendent’s certificated workforce. (Id., proposed dec. at p. 24.) The
hearing officer distilled PERB and NLRB precedent to conclude that the single employer
doctrine could not be used to find a single unit appropriate in that case, explaining:
Reading Turlock and Paso Robles together, the inescapable
conclusion is that the District and the County Superintendent are
two separate public school employers and do not constitute a
single employer for purposes of representation under EERA. As
in Turlock, the District and County Superintendent are separate
legal entities with separate governing boards or authority who
have chosen to share some personnel, but shared personnel
receive separate paychecks from each entity. As in Paso Robles,
the two governing authorities (Governing Board and County
62

Superintendent) have separate and exclusive policy-making
authority and the funding sources and budgets of the two entities
are separate, distinct and not comingled. These factors, under
Turlock and Paso Robles, require finding that the District and
County Superintendent do not constitute a single employer.
Further, application of the four factors utilized by the NLRB does
not result in a finding of single employer status. While there is
some evidence of functional integration of operations, it is also
true that at least half of the programs of the County
Superintendent take place separate and apart from operations of
the District. More importantly, the separate and exclusive policy-
making authority of the District’s Governing Board and the
County Superintendent, combined with the separately maintained
budgets of the two, defeat a finding of the other three factors
(centralized control of labor relations, common management and
common financial control).
(Plumas, supra, adopting proposed dec. at pp. 23-24, emphasis added.)
In El Camino Hospital District (2009) PERB Decision No. 2033-M (El Camino), the
Board concluded that a hospital district and a hospital were a single employer under the four-
part test discussed above, because, among other reasons, the hospital was largely governed by
the hospital district as the hospital district appointed five of the hospital’s governing board
members and had authority to remove the sixth appointee. (Id. at pp. 19-21.) The Board
concluded that the joint employer analysis did not apply in that case because the hospital
district had, in fact, assumed control over the operations of the hospital. (Id. at p. 23.)
One last point is warranted regarding the applicability of NLRB decisional law.
Notwithstanding Turlock and Paso Robles expressing doubt about the applicability of the
single employer doctrine in the public sector employment context due to potential infringement
on political sovereignty, these discussions do not bar consideration of NLRB decisional law.
Even though the Turlock Board opined that it “would” be justified in applying a more stringent
standard than the NLRB for finding separate employers to be acting as one employer in the
63

public sector, neither it nor any Board decision after that, not even Paso Robles, actually
adopted more stringent standards than those in the federal cases for determining single
employer status. Instead, every other Board decision discussed above from Plumas to
El Camino continued to look to federal authorities for guidance and to cite with approval the
tests discussed in Browning-Ferris-Pennsylvania. Thus, it is appropriate to also do so here.
B. Analysis of Employer Status in This Case
To review, “ single employer status exists where two [or more] nominally separate
entities are actually part of a single integrated enterprise so that there is, in reality, only a
single employer .” (El Camino, supra, PERB Decision No. 2033-M, p. 18.) The Board looks
to the following four factors to determine the existence of a single employer relationship:
(1) functional integration of operations; (2) centralized control of labor relations; (3) common
management; and (4) common ownership or financial control. (Ibid.; Browning-Ferris-
Pennsylvania, supra, 691 F.2d at p. 1122.)
It is well recognized that many cases involving single employer status involve evidence
of commonality as well as evidence of independent operations. (Higgins, The Developing
Labor Law (6 th ed. 2012) vol. II, ch. 27.III.B.I., p. 2363.) Such issues require a fact-intensive,
case-by-case analysis. (Ibid.) We proceed with the following guiding principles in place.
Single employer status does not require the presence of all four factors. (The Regents of the
University of California (1999) PERB Order No. Ad-293-H (UC Regents), adopting proposed
dec. at p. 15.) While no single factor is controlling, the first three are more critical than the
fourth. (El Camino, supra, PERB Decision No. 2033-M, p. 19.)
At the outset of our analysis, we address an argument underlying CAVA Schools’
position on the employer status issue. Using a similar argument made by CAVA Schools in
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urging that we dismiss the CTA petition for having named Abston as the employer
representative instead of a CAVA School Board member, CAVA Schools argues that the
ALJ’s findings and conclusions concerning K12, a private company, were improper. (See
discussion, ante, fn. 55.) According to CAVA Schools, the ALJ erred in having “bottomed her
Proposed Decision on a discussion of K12, rather than of the CAVA schools as to which the
PERB has jurisdiction.” (CAVA Schools Opening Brief, p. 33.) Included as an example of the
ALJ’s improper reach is the following passage from the PD:
It is through their relationships with K12/Abston, and her
administrative team, that all of the Schools are able to consider,
and have ultimately adopted, the same proposals that govern
essential terms and conditions of employment of all certificated
employees. Without such a common thread, it is very unlikely
that there would be a “network” of Schools to consider as a
potential employer for recognition purposes, or in any other way.
(PD, p. 71.)
PERB is called on in a variety of contexts to make factual findings that involve private
entities, such as when PERB is called on to determine whether the contracting out of
governmental services is an unlawful unilateral change. (See, e.g., Lucia Mar Unified School
District (2001) PERB Decision No. 1440 [Board found unilateral change where public school
employer failed to negotiate decision to replace transportation services employees with those
of a private contractor and ordered a make-whole remedy including restoration of bargaining
unit positions with termination of contract].) That unfair practice and representation matters
may require analysis of contractual or other relationships between public sector employers and
private entities is not new, is not an impermissible intrusion into private corporate affairs and is
not an infraction of PERB’s jurisdictional rules.
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K12’s relationship with the CAVA Schools is relevant to every factor under
consideration, especially functional operational integration of the Schools, because the K12
model of doing charter school business predetermines exactly how a School will operate. In
finding that the CAVA Schools operate as part of a “single integrated enterprise” under the
single employer doctrine, we do not conclude that the employer of the certificated teachers is
K12, a private company. Single employer status is a legal construct imposed on nominally
separate entities. A finding of single employer status enables CAVA Schools and CTA to have
one set of negotiations instead of 11 sets of separate negotiations for each one of the 11 CAVA
Schools. If the two sides reach agreement on terms and conditions of employment, it will be
memorialized in one collective bargaining agreement that applies across CAVA Schools. In no
manner would the outcomes that flow from a finding of single employer status include K12 ever
becoming the employer of the certificated teachers in the proposed unit, or a party to contract
negotiations and a subsequent collective bargaining agreement. Nor would the outcomes
include K12 falling within PERB’s jurisdiction.62 CAVA Schools cites to the Board’s decisions
in UC Regents, supra, PERB Order No. Ad-293-H and Los Angeles Unified School District
(2001) PERB Decision No. 1469 for the principle that PERB cannot assert its jurisdiction over a
matter involving the question whether two entities constitute a single employer where one of the
entities is a private entity because private entities do not fall within EERA’s definition of public
school employer. That principle is good law, but has no bearing here. The constituent
employer entities sought by CTA to constitute a single employer in this case are the 11 CAVA
Schools, each of which falls within EERA’s definition of a public school employer. Unlike the
62 Under the single employer doctrine, the respondent in a PERB unfair practice charge
filed by CTA, and the employer in a PERB representation matter, is the CAVA network of 11
charter schools, not K12.
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cases cited by CAVA Schools, CTA has not named K12 as an employer in these proceedings,
nor is there any suggestion that the certificated teachers in the petitioned-for bargaining unit
have any type of employment relationship with K12. Under the single employer doctrine,
employees are indeed employed by the entities that are part of the single integrated enterprise,
just like the certificated teachers in this case are employed by the 11 CAVA Schools. That K12
sells its services to these Schools does not mean that K12 has acquired the status of employer of
the certificated teachers, or party to these proceedings, any more than any other vendor the
Schools may have in common would render that company the employer.
CAVA Schools asserts that “CTA’s brief is riddled with references to ‘CAVA’—which
is not a legal entity, but rather a trade name associated with K12—as the ‘employer’ of the
teachers.” (CAVA Schools Responsive Brief, p. 20.) As noted on the first page of this
decision, CAVA is a shorthand reference to the “employer” party in this matter, California
Virtual Academies. “Academies” is in the plural and encompasses the 11 charter schools in
the network. (See discussion, ante, fn. 55.) CAVA at Kings, for example, is one of the
Academies within the CAVA network. When the shorthand “CAVA” is not accompanied by
“at [name of School],” it is simply a reference to the entire network of Academies or Schools.
Whether CAVA is a trade name or a legally-recognized entity in itself is not of import to these
proceedings. Under the single employer doctrine, the “single employer” is not necessarily a
legally distinct entity. It is an analytical construct that is imposed under judicially developed
doctrines on legally distinct but nominally separate and functionally integrated entities solely
for the purpose of representation and collective bargaining. 	It is not imposed for any other
purpose. As Abston herself testified concerning the student enrollment process: “Once
they’ve completed that process, they would be considered to be enrolled at California Virtual
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Academy and then would be assigned to a teacher there.” (R.T., Vol. II, p. 18, emphasis
added.)
Factor 1: Functional Integration of Operations
The operation of the CAVA Schools is functionally integrated at inception by design.
Every School has formed itself in the same exact way, starting with a founding group of
individuals who desire the K12 model of virtual education, and continuing with a presentation
of the charter application signed by K12-employed Abston, the Head of Schools for all CAVA
Schools, to the authorizing district. Every School uses the same “general counsel” to prepare
the charter documents63 and bylaws. Every School uses the same auditor to examine the
financial records.
By predetermined design, all CAVA Schools enter into the same contractual
relationships with K12 (EPSAs) and the same contractual relationships with Insperity (CSAs).
Through these contractual relationships, the K12 model produces absolute functional
integration in curriculum, operations and management: The K12 model also ensures absolute
functional integration in human resources, payroll and benefits administration. Abston
testified that there is no relationship between K12 and Insperity, but each of the 11 CSAs was
signed by K12 associates including Abston herself. As Head of Schools, Abston signs all
employment contracts and approves all merit increases. “[N]ear-identical policies, employee
63 Abston testified: “The original petition template, clearly, there’s amazing similarity
between all of them, . . .” (R.T., Vol. V, p. 124.)
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handbooks, and compensation structures for certificated employees” have been adopted across
all CAVA Schools. (CAVA Schools Opening Brief, p. 5.)64
Functional integration is achieved through the creation of an organizational structure
akin to a school district. There is one Head of School for all Schools who is at the top of the
reporting hierarchy and acts in the capacity of “Superintendent” over a “District,” which is
identified on the SARC as “California Virtual Academies.” There is one administrative team
consisting of human resources, financial and clerical staff. They function on a CAVA-wide
basis providing operational administrative support to all the Schools in a uniform manner.
Within the California Virtual Academies “District,” there is one CAVA-wide High School
Department, one CAVA-wide Middle School Department and one CAVA-wide Elementary
Education Department in addition to one CAVA-wide Special Education Department.
Meetings of the certificated teachers are by department, by region and by content, but are never
School-based. Similarly, teachers attend professional development days on a regional or
statewide basis.
There is one brick and mortar office in Simi Valley, which serves as a central
repository for all student, employee and Board records. The classified employees who work
there service the entire network of CAVA Schools. The Simi Valley address is also the
corporate office for all but two Schools. Those two Schools have their corporate offices in
Oakland at what appears to be the same address. (American Theater Corp. (1975) 220 NLRB
295, enforced (8 th Cir. 1976) 542 F.2d 1178, cert. denied sub nom. Global Industries, Inc. v.
NLRB (1977) 430 U.S. 967 [single employer status found where corporate offices of all the
64 While there were some variations in the proposals that were presented to each Board,
especially over School-specific financial items like common core funding, there is marked
correspondence in the approval rate of commonly proposed items.
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entities were located in the same building, which was owned by the parent company, and a
common accounting service was used by all the entities].
K12 hosts one website for all CAVA Schools, which, in most respects, presents the
CAVA Schools to the public as a single entity. “Welcome to CAVA!” is the opening message
on the website. The website allows parents to enroll their children in a CAVA School through
a central online enrollment process that determines student placement by geography. There is
one Parent-Student Handbook distributed to all families enrolled in any of the CAVA Schools
that also presents the CAVA Schools as a single entity. Once enrolled, students can take
advantage of all CAVA-wide grade and content appropriate educational resources. In terms of
the educational program, all of the “programs,” i.e., academic offerings of the Schools, are
shared in common, which is notably distinguished from the facts in Plumas, supra, PERB
Decision No. 1332, where at least half of the programs were not shared. An educational
program that has only one high school physics teacher must by definition be part of a single
integrated enterprise in order that it ensures that every student in the CAVA Schools has equal
educational opportunities.
The strong relationship one would typically expect to find between teacher and school
in an actual, not virtual, public school setting is nonexistent. Both students and teachers can
attend whatever graduation(s) they want anywhere in the network of the 11 CAVA Schools.
The strongest bonds appear to be between teacher and student and between teacher and
supervisor/mentor/trainer/content specialist, not between teacher and School holding the
teacher’s contract. A teacher may be employed by one School, but have a caseload of students
from multiple other schools. Lines of supervision are not determined by School, but by region.
Teachers are evaluated and disciplined at a regional and department level, not at the School
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level. Teachers are evaluated for the work they perform across Schools, not just for work they
perform for the School that holds the teacher’s employment contract. A teacher from one
School may be disciplined for misconduct occurring at a different School by supervisors from
yet another School.
And, most tellingly, if Abston and her administrative team decide that a teacher’s
employment contract should be transferred to another School to address changing enrollment
conditions, that change is made. Teachers are tethered to a School by contract and paycheck
only until they are untethered from that School and re-tethered to another School for
administrative and operational convenience. Because the CAVA Schools operate primarily as
an online virtual educational program, there are no physical barriers to this fluidity and
integration. In fact, not all teaching positions are for an individually-named CAVA School.
After a candidate is chosen, the candidate is placed where the need exists within the system.
The teachers who testified at hearing did not realize that they had been placed at any particular
School until they received their first paycheck.
NLRB cases emphasize the importance of the interchange of employees between
employers as indicative of an interrelationship of operations. (Turlock, supra, EERB Order
No. Ad-18, p. 22, fn. 23, citing Central Dairy Products Co. (1955) 114 NLRB 1189; Orkin,
“The Rat Man,” Inc. (1955) 112 NLRB 762; Metco Plating Co. (1954) 110 NLRB 615;
National Mattress Co. (1955) 111 NLRB 890.) In Central Dairy Products Co., supra,
114 NLRB 1189, the NLRB denied single employer status where: (1) the record was devoid of
evidence that would show centralized control of labor relations with respect to hiring and
discharging employees, setting wage rates and establishment of vacation and other benefits;
and (2) there was no indication of interchange of employees among the employers.
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In contrast here, the sharing of employees across all of the Schools is systemic and
pervasive, and part and parcel of the model by which the Schools operate. Abston admitted
that especially for the smaller Schools, they must share employees with the other Schools or
they would be acting in a “fiscally irresponsible” manner. Teacher sharing is only possible
because CAVA Schools operate as a single integrated enterprise. This organizational structure
allows operational decisions — such as whether to transfer a teacher’s contract to another
School or whether to assign a teacher employed by one School to students enrolled at one or
several other Schools — to be made at the top by common administrative decision-makers for
the sake of the enterprise as a whole.
Factor 2: Centralized Control of Labor Relations
We agree with the ALJ that centralized control over labor relations is demonstrated by
the fact that all of the Schools have adopted the exact same terms and conditions of
employment for all teachers at every School. All terms and conditions of employment: from
hiring to hours of work, the salary schedule and benefits, job duties (including in-person
meeting requirements by department), lines of supervision (by department), evaluation of
performance, and discipline up to and including termination, are uniform across the CAVA
network.
Factor 3: Common Management
We also agree with the ALJ that although “dispersed” regionally, the management
structure here is rigidly hierarchical and statewide, with Abston at the top and several levels of
management beneath her organized by department. This is certainly indicative of “centralized
control,” namely that each School has determined that “control” over employment conditions
will be “centralized” under the Head of Schools. Similarly, the Schools argue that there is no
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“common management” because each School is ultimately managed by an independent
governing board. This again ignores the fact that Abston is the “common management” across
all Schools, and further that RPCs and RLTs manage and supervise employees at multiple
Schools, regardless of where they themselves are employed, and this happens statewide. Thus,
the management of the Schools is shared in common between them.
Factor 4: Common Ownership or Financial Control
Of the four factors, the common ownership and financial control factor is least
translatable to public sector employment. In private sector employment, this factor involves
considerations of private enterprise ownership configurations, e.g., a wholly-owned subsidiary
and its parent corporation (Royal Typewriter Co. v. NLRB (8th Cir. 1976) 533 F.2d 1030); a
conglomerate consisting of one holding company and five subsidiaries (United Telegraph
Workers, AFL-CIO v. NLRB (D.C. Cir. 1978) 571 F.2d 665, affg. (1976) 224 NLRB 274);
several corporations owned by a single family (Soule Glass & Glazing Co. v. NLRB (1 st Cir.
1981) 652 F.2d 1055, enforcing in part (1979) 246 NLRB 792).)
These same considerations do not apply to public sector employment. Instead, Turlock,
Paso Robles, and Plumas, have injected into the single employer analysis additional
considerations unique to public sector employment. As the Board in Turlock recognized,
public sector employers are not just employers, they are “political entities that the Legislature
has seen fit to clothe with certain incidences of sovereignty.” (Turlock, supra, EERB Order
No. Ad-18, p. 20.) Turlock held that “[t]reating these two districts as a single employer would
dilute each voter’s influence on the district’s personnel relations programs.” (Id. at p. 25.) The
Board in Paso Robles rejected single employer status where administrators common to two
public school districts had no ultimate authority over personnel matters and always acted under
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the control of the independent governing boards. (Paso Robles, supra, PERB Decision No.
85.) Paso Robles emphasized the two districts’ separately maintained budgets and the
exclusive policy making authority of each school district.
The sovereign nature of a public school district may be an appropriate consideration in
cases involving public school districts and their governing boards. Turlock is a good example.
In Turlock, members of the school board were elected by the voters within the boundaries of
each district. Each district established its own budget and levied its own taxes. Each district
had its own federal employer identification number. These facts informed the Board’s
decision.
The sovereign nature of public school districts is not, however, an appropriate
consideration here because this case does not involve the question of whether two or more
public school districts may be considered to be a single employer. Here, the role played by the
public school district is not that of employer.65 The public school district’s limited role is to
authorize the charter at the local level, through official action taken by its governing board, and
to fill a reserved seat on the Boards. In contrast to these cases involving public school
districts, the CAVA Schools are non-profit corporations, not sovereign powers. They have
declared themselves public school employers solely for purposes of EERA.
Unlike Turlock, members of the Boards are not elected by voters. The initial Board is
nominated or appointed by the founding group, and Board vacancies are filled through an
informal recruitment process led by Abston. There is no risk of diluting voter influence, as the
voters have no say in the nomination or selection process and no means by which to enforce
65 Each of the 11 charter petitions declared the charter school to be the employer, for
collective bargaining purposes, thereby rejecting the option of naming the public school district
as the employer.
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accountability and transparency akin to local voter control. Unlike in Turlock, the budgets for
the CAVA Schools are developed by the K12-employed financial officer. Budgets presented
to the CAVA Schools’ Boards are always approved, typically with “[n]o questions asked.”
Unlike Turlock, CAVA Schools do not levy taxes. Although each CAVA School receives a
separate employer identification number from the Internal Revenue Service with approval of
their applications for tax exempt status, the employer identification number on employee W2
forms is the same. Therefore, considerations of sovereign power, local tax base and local voter
control are simply not relevant here, let alone justification for rejecting single employer status.
CAVA Schools relies on Turlock and Plumas to argue that the fact that each CAVA
School operates under an independent governing board trumps satisfaction of the other factors.
As the Board held in Plumas:
[T]he separate and exclusive policy-making authority of the
District’s Governing Board and the County Superintendent,
combined with the separately maintained budgets of the two, defeat a
finding of the other three factors (centralized control of labor
relations, common management and common financial control).
(Plumas, supra, PERB Decision No. 1332 , p. 24.)
The evidence in the record demonstrates, however, that the CAVA Schools’ Boards do
not operate independently in any kind of policy-making capacity, or with respect to labor
relations. The EPSAs provides: 	“The Board shall provide K12 written copies of all policies
adopted by Customer and must notify K12 promptly in writing of any changes to such policies
adopted by Customer and shall provide K12 with copies thereof.” The bylaws provide that it is
the responsibility of the Boards to define, compose and revise policies. The Boards, however,
do not make their own policies as alluded to in the EPSAs, or engage in any of their policy-
making responsibilities under their bylaws. The Boards typically meet for less than 45 minutes
four times per year. The Boards are presented with policies, which are already defined and
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composed. The Boards typically approve common policies across Schools with “[n]o questions
asked.”66
The bylaws give the Boards responsibility for “[f]inancial development and
management” and “[s]etting a framework for the budget process.” The evidence in the record
establishes that the Boards do not carry out these responsibilities, or do anything other than
approve budget-related action items on the agenda, typically with no questions asked.
Regarding the expenditure of funds, Abston and her administrative team determine
where teachers will be placed, and whether they will be moved from one School to another.
The regional and departmental management team determines the placement of students with
teachers, and the placement of teachers with RLTs and RPCs. The Schools are then “billed”
based on allocation charts showing the distribution of teachers, supervisors, administrators and
managers across all 11 Schools. These allocation charts are not, however, given to the Boards
for their review or approval, nor are they necessarily reflective of the actual distribution of
teacher services among the Schools.
The bylaws give the Boards responsibility for approving significant program changes.
There was some reorganization within both General and Special Education programs during
the year preceding the formal hearing. High School supervision changed from subject matter
based to region based. These changes were accomplished without the approval or involvement
of the Boards.
The bylaws give the Boards responsibility for entering into contracts with professional
service providers. None of the CSAs with Insperity were entered into by Board members.
66 Abston could recall only three instances in the history of Board meetings of rejection
of proposed agenda items by any of the Boards.
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They were entered into by K12 associates, and only two were entered into by Abston, the
Boards’ authorized representative.
The bylaws give the Boards responsibility for “Personnel.” The evidence establishes
that personnel decisions become effective when they are made by CAVA management, not
when they are subsequently “approved” at the next regularly scheduled Board meeting. A
decision to fire an employee is communicated to the employee by the appropriate manager.
Termination is effective immediately. The fired employee’s pay and benefits are terminated at
that time.
The bylaws give the Boards responsibility for overseeing and evaluating the work of
the Head of Schools. There is no evidence in the agendas or the minutes of the 55 meetings
that were received in evidence that the Boards do this. It is questionable whether this function
can be carried out by, for example, a Board whose directors include the Head of School’s
mother or a subordinate in the chain of command, without running afoul of irreconcilable
conflicts of interest.
The bylaws give the Boards responsibility for “Program Oversight.” There is no
evidence of any program oversight by the Boards.
Each Board typically meets for less than two hours each year to conduct Board
business. One such Board meeting lasted five minutes. It is not possible to conclude based on
the infrequent meetings of the CAVA Schools’ Boards of Directors, their length and the
typically unquestioning nature of the approval process, that these Boards have sufficient
independence to defeat a finding of single employer status.
As stated earlier, questions of single employer status usually involve evidence of both
independence and commonality. CAVA Schools’ responsive brief highlights one example of
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one Board’s independence. At a regularly-scheduled Board meeting, a Board member asked
for staff to insert an extra column on a chart. Instances of even that bare showing of
independence are rare. More typically, the Boards approve what is put before them with no
questions asked.
CAVA Schools also points to language in the charter documents, bylaws and contracts
stating that the Boards of each School have final decision-making authority over finance,
policy and personnel matters. W hen distinguishing the significance of the conduct between
the parties from mere recitals in operational documents, PERB has held:
Although the District intended that the academy instructors would
not be considered its employees, the Board is not bound by the
District’s intent nor the provisions of the Agreement in determining
whether the academy instructors are “employees” for purposes of
EERA. (Goleta Union School District (1984) PERB Decision
No. 391 at p. 16 (Goleta).) The Board is also not bound by any
acknowledgement that the academy instructors may have signed
agreeing not to be considered employees of the District. (Goleta at
p. 16.) The rights guaranteed to employees by EERA cannot be
abrogated unilaterally by an employer through a cleverly written
contract with a third party. . . .
(Ventura County Community College District (2003) PERB Decision No. 1547, pp. 20-21.)
As noted in San Jose/Evergreen, supra, PERB Decision No. 1928, the way the
operating documents are drafted does not take precedence over the parties’ actual practices.
As demonstrated above, there is a profound chasm between the recitals in the operative
documents and the actual practices of the CAVA Schools’ Boards. Whether operating off of
express or assumed delegations, implied pre-approvals, blanket authority, expediency or a
desire for efficiency, the CAVA Schools operate with minimal direction, governance or
leadership from their respective Boards. Accordingly, we conclude that the CAVA Schools’
Boards of Directors are not sufficiently independent from Abston and her administrative and
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management team to defeat a finding of single employer status. The factors supporting single
employer status include a functionally integrated operating model, identical terms and
conditions of employment, a common and highly hierarchical management structure, and the
interchangeability of the Schools’ most valuable asset, the certificated teachers in the
petitioned-for unit. These factors weigh heavily in favor of single employer status. (See Soule
Glass & Glazing Co. v. NLRB, supra, 652 F.2d 1055, enforcing in part 246 NLRB 792 [single
employer status found based on interlocking relationship among several family-owned
corporations demonstrated by the meshing of various operations, the commonality of labor
relations and the interchangeability of employees and equipment].) Through that common
management structure, the CAVA Schools operate as “ part of a single integrated enterprise so
that there is, in reality, only a single employer .” (El Camino, supra, PERB Decision
No. 2033-M, p. 19.)
Community of Interest
As it has been concluded that the Schools are considered a single employer for EERA
purposes of all of the employees in the sought-after unit, under Peralta, supra, PERB Decision
No. 77, the burden is on CAVA Schools, the party opposed to a comprehensive unit, to
demonstrate that all employees of the public school employer should not be included in the
same unit. (Orcutt Elementary Union School District (2011) PERB Decision No. 2183, pp. 7-8
[Peralta presumption applies to charter schools].)
In finding a community of interest to exist among employees, PERB typically considers
as persuasive evidence whether there are common conditions, such as method of compensation,
wages, hours, employment benefits, supervision, qualifications, training and skills, contact, and
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interchange with other employees. (Office of the Santa Clara County Superintendent of Schools
(1978) PERB Decision No. 59.) Here, all of those factors are demonstrated.
CAVA Schools argues that a community of interest is lacking because teachers are
employed in geographically disperse areas of the state. First, even in settings where employees
work in physical rather than virtual locations, statewide bargaining units do exist and have
done so for a very long time. (See, e.g., Unit Determination for the State of California (1979)
PERB Decision No. 110-s; Id. (1980) PERB Decision No. 110b-S; Id. (1980) PERB Decision
No. 110c-S; Id. (1981) PERB Decision No. 110d-S; Unit Determination for Employees of the
California State University and Colleges) (1981) PERB Decision No. 173-H; Unit
Determination for Technical Employees, Clerical Employees, Service Employees, Professional
Scientists and Engineers, Lawrence Livermore National Laboratory, Professional Librarians,
and Professional Patient Care Employees of the University of California (1982) PERB
Decision Nos. 241-H, 244-H, 245-H, 246-H, 247-H and 248-H, respectively; Unit
Determination for Skilled Crafts Employees of the University of California (1982) PERB
Decision No. 242-H; Id. (1983) PERB Decision No. 242a-H; Id. (1983) PERB Decision
No. 242b-H; Id. (1983) PERB Decision No. 242c-H; Id. (1984) PERB Decision No. 242d-H;
Unit Determination for Printing Trades Employees of the University of California (1982)
PERB Decision No. 243-H; Id. (1983) PERB Decision No. 243a-H; Id. (1983) PERB Decision
No. 243b-H.) Second, except for the Community Day program, CAVA Schools’ teachers
teach in a virtual environment. Geography is no impediment to community of interest in a
virtual environment.
CAVA Schools argues that most teachers lack any connection with other schools and
teachers. As already discussed, there are ample opportunities and requirements for teachers
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employed by one School to interact with teachers employed by another School. Lines between
teachers are not divided by School, but by grade level and curriculum content area. CAVA
Schools argues that virtual meetings do not provide the degree of interaction required for
community of interest. That is plainly absurd. CAVA Schools operate primarily in the virtual
realm. There is no office, no breakroom, no hallways, no cafeteria, no water coolers, no yard.
Using CAVA Schools’ logic, even teachers employed by only one School share no community
of interest given the virtual environment that inherently limits their interaction.
Finally, CAVA Schools argues there is only limited shared supervision. While true that
the approximately 700 certificated teachers in the petitioned-for unit are not all directly
supervised by the same person, the more salient fact is that the lines of supervision are based
on region and department, not individual School. And, matters of discipline and performance
evaluation are handled in the same way across all CAVA Schools. Teachers have direct
supervisors, who report to regional coordinators, who report to department heads, who report
to one academic administrator, who reports directly to one Head of Schools. That unified
supervisorial and management structure supports, not defeats, a community of interest finding.
CAVA Schools offers three additional bases for its argument against community of
interest.
First, CAVA Schools asserts that a comprehensive bargaining unit would impair the
efficient operations of the CAVA Schools because each School is separately funded and
maintains its own budget and expenditures, as authorized by its own Board of Directors.
CAVA Schools argues that the PD fails to take into account the different financial conditions
of each School due to local tax revenue.
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The impact of the petitioned-for unit configuration on the operations of the employer is
a factor considered by PERB when determining unit appropriateness. (San Diego Community
College District (2001) PERB Decision No. 1445, p. 13 [rejecting employer’s argument for
lack of proof that having continuing education counselors in existing counselor’s unit would
impair efficient operations].) In balancing the impact on the efficient operations of an employer
with the employees’ right to effective representation in appropriate units, the Board has never
found the efficiency factor to outweigh representation rights. (See Los Angeles Unified School
District (1998) PERB Decision No. 1267; Sweetwater Union High School District (1976) EERB
Decision No. 4.)
CAVA Schools offers no facts in support of its efficiency argument. The materiality, if
any, of the Schools’ different financial conditions to the community of interest analysis
remains unproven. The terms and conditions of employment for all certificated teachers in the
proposed unit are identical across Schools. Despite whatever differing financial conditions
there may be amongst the Schools, all teachers go through the same hiring process, teach the
same curriculum, work the same hours of work, have the same academic calendar, receive the
same pay and benefits, and are bound by the same employee policies and manuals.
Employment contracts are signed by the same Head of Schools, who also approves all merit
increases. CAVA Schools presented no evidence that the CAVA Schools’ different funding
sources, budgets or expenditures, or their responsibility to their respective sponsoring school
districts, impact any of the certificated teachers’ terms and conditions of employment.
As the ALJ observed:
The Schools have chosen to unify every employment condition
across all of the Schools, so it is curious why they desire
separateness in collective bargaining. In fact, the 11 separate
units suggested by the Schools as more appropriate are what
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would have likely resulted in a cumbersome and confusing
bargaining process, especially as applied to employees on a day-
to-day basis. Under that scenario, a single employee could have
been simultaneously subjected to the terms of up to 11 separate
collective bargaining agreements. That would be a less than
desirable situation. As it stands, other than the injection of a
collective bargaining agent with whom they must collectively
deal, there are no facts to suggest that the Schools will be forced
to consider or approve proposals any differently than the way
they do now. As the Schools presented no facts to show that their
operations would be impaired under the sought-after unit
configuration, and there are no other arguments to consider
against finding sufficient community of interest between the
certificated employees in the Schools, the petitioned-for unit is
appropriate. (San Diego, supra, PERB Decision No. 1445;
Peralta, supra, PERB Decision No. 77.)
(PD, p. 75.)
Second, CAVA argues that strong support for CTA’s representation petition at the
larger of the CAVA Schools could “force unionization at all the schools.” (CAVA Opening
Brief, p. 38, emphasis in original.) CAVA Schools fails to appreciate the bedrock principle
upon which collective bargaining rests — majority rule. In a large public school district,
certificated teachers at a small school might oppose representation, but if a majority of
certificated teachers in the district as a whole support representation, the bargaining unit is
entitled to the bargaining power of an exclusive representative.
As the United States Supreme Court explained:
Central to the policy of fostering collective bargaining, where the
employees elect that course, is the principle of majority rule. See
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615,
81 L.Ed. 893 (1937). If the majority of a unit chooses union
representation, the NLRA permits it to bargain with its employer to
make union membership a condition of employment, thereby
imposing its choice upon the minority. 29 U.S.C. §§ 157,
158(a)(3). In establishing a regime of majority rule, Congress
sought to secure to all members of the unit the benefits of their
collective strength and bargaining power, in full awareness that the
superior strength of some individuals or groups might be
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subordinated to the interest of the majority. Vaca v. Sipes, 386
U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967); J. I. Case
Co. v. NLRB, 321 U.S. 332, 338—339, 64 S.Ct. 576, 580, 88
L.Ed. 762 (1944); H.R.Rep.No.972, 74th Cong., 1st Sess., 18
(1935). As a result, ‘(t)he complete satisfaction of all who are
represented is hardly to be expected.’ Ford Motor Co. v. Huffman,
345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953).
(Emporium Capwell Co. v. W. Addition Community Organization (1975) 420 U.S. 50, 62, fn.
omitted.)
Last, CAVA Schools argues that compulsory multi-employer bargaining is prohibited
under the NLRA, and not contemplated under EERA, citing Frito Lay, Inc. v. Teamsters
(9 th Cir. 1980) 623 F.2d 1354, 1358-1359 (Frito Lay).
In Frito Lay, Frito-Lay, Granny Goose, Inc., and Laura Scudder’s, competing
manufacturers, sellers and distributors of potato chips, corn chips and other snack food products
in California and elsewhere, joined together as an employer organization to bargain for and enter
into collective bargaining agreements with fifteen local unions that represented route
salespersons and warehousepersons employed by each of the companies. The employer
organization negotiated on behalf of the employers for five successive collective bargaining
agreements before giving notice of their intent to withdraw from multi-employer bargaining and
to bargain separately, thereby dissolving the multi-employer bargaining unit. Unable to obtain
sufficiently similar contract provisions through individual bargaining, the locals commenced a
strike against all three companies. The question was whether the locals had committed an unfair
labor practice under the NLRA’s section 8(b) (4)(A) prohibition, which provides that it shall be
an “unfair labor practice for a labor organization or its agents . . . to engage in, or to induce or
encourage any individual employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike . . . where . . . an object thereof is . . . [to] forc[e] or
requir(e) any employer . . . to join any . . . employer organization.” (29 U.S.C. § 158(b)(4)(A).)
84

The court answered that question in the affirmative, concluding that section 8(b)(4)(A) prohibits
coercive union conduct with the object of forcing employers to engage in multi-employer
bargaining, whether as a formal association or informal group. (Frito-Lay, supra,
623 F.2d 1354, 1356-1359.)
Multiemployer bargaining units and the single employer doctrine are distinct
conceptually. In multi-employer bargaining, there is no issue of employer status. Employers in
multiemployer bargaining arrangements are completely independent employers. In Frito Lay,
they were competitors. They have no other relationship to each other relevant to the labor law
issues under consideration apart from the fact of their voluntary association with one another for
collective bargaining purposes. Under the single employer doctrine, two or more nominally
separate employers are found to constitute a single employer for collective bargaining purposes
precisely because of their close relationship to one another, common management and labor
conditions and functionally integrated operations. The constituent entities comprising a single
employer under the single employer doctrine are not equivalent to completely independent
employers in multiemployer bargaining units.
If CAVA Schools is correct in equating employers found to operate as part of a single
integrated enterprise to employers in multiemployer bargaining units, the consequence would
undermine the important policy objectives underlying the single employer doctrine. Imposing a
multiemployer bargaining unit construct atop a single employer analysis would mean that a
group of employers found to constitute a single employer would have the unfettered power to
defeat the creation of a common bargaining unit desired by a majority of unit members simply by
withholding their agreement.
85

The single employer doctrine, especially in public sector employment, is called for only
in the most unique of circumstances. The circumstances here qualify. Public schools are no
longer cut out of the same mold. Although we are in uncharted waters, we are not without the
analytical tools necessary to arrive at the appropriate result. As observed in In Re H.S. Care
L.L.C. (2004) 343 NLRB 659, 667 (dis. opn. of Liebman and Walsh):
Because the scope of the unit is basic to and permeates the whole
of the collective bargaining relationship, each unit determination,
in order to further effective expression of the statutory purposes,
must have a direct relevancy to the circumstances within which
collective bargaining is to take place. For, if the unit determination
fails to relate to the factual situation with which the parties must
deal, efficient and stable collective bargaining is undermined rather
than fostered.
CONCLUSION
Because the 11 CAVA Schools are “actually part of a single integrated enterprise
so that there is, in reality, only a single employer ” (El Camino, supra, PERB Decision
No. 2033-M, p. 19), CTA may seek a single, statewide bargaining unit of certificated teachers
employed by all 11 CAVA Schools. The Schools did not meet their burden of proving that the
single, statewide unit sought by CTA was inappropriate under the Peralta, supra, PERB
Decision No. 77, presumption or community of interest criteria. Therefore, the unit sought in
the petition is appropriate.
ORDER
Because California Virtual Academies (CAVA Schools) has not granted recognition,
and California Teachers Association has demonstrated proof of majority support in a single,
statewide bargaining unit of certificated teachers employed by all 11 CAVA Schools, it is
HEREBY CERTIFIED, as of the date of this decision, that the California Teachers Association
is the exclusive representative of all employees in the unit set forth below:
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Certificated Unit
Shall Include: All full and part-time certificated employees and all teachers hired
pursuant to Education Code Section 47605, subdivision (j), employed by the “California
Virtual Academies,” i.e.: California Virtual Academy at Jamestown; California Virtual
Academy at Kings; California Virtual Academy at Los Angeles; California Virtual Academy at
Maricopa; California Virtual Academy High School at Maricopa; California Virtual Academy
at San Diego; California Virtual Academy at San Joaquin; California Virtual Academy at
San Mateo; California Virtual Academy at Sonoma; California Virtual Academy at Sutter; and
California Virtual Academy at Fresno.
Shall Exclude: All managers, supervisors, classified employees, confidential
employees, and casual substitutes within the meaning of the Educational Employment
Relations Act.
Pursuant to PERB Regulation section 33450 (Cal. Code Regs., tit. 8, § 31001 et seq.),
within ten (10) days following issuance of a notice of decision on the parties, California
Virtual Academies shall post a copy of the notice of decision conspicuously on SharePoint and
send the notice of decision via e-mail to all bargaining unit members. The notice of decision
shall remain posted on SharePoint for a minimum of fifteen (15) workdays.
Members Winslow and Gregersen joined in this Decision.
87

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
CASE: 	Case No. LA-RR-1227-E
EMPLOYER: 	California Virtual Academies
2360 Shasta Way, Suite A
Simi Valley, CA 	93065
EMPLOYEE ORGANIZATION
PARTY TO PROCEEDING:
California Teachers Association
1211 Embarcadero, Suite 204
Oakland, CA 94606
FINDINGS:
The Board finds the following unit is appropriate for meeting and negotiating:
Unit Title: 	Certificated Employees
Shall Include: All full and part-time certificated employees and all teachers hired
pursuant to Education Code Section 47605, subdivision (j), employed by the “California
Virtual Academies,” i.e. : California Virtual Academy at Jamestown; California Virtual
Academy at Kings; California Virtual Academy at Los Angeles; California Virtual Academy at
Maricopa; California Virtual Academy High School at Maricopa; California Virtual Academy
at San Diego; California Virtual Academy at San Joaquin; California Virtual Academy at
San Mateo; California Virtual Academy at Sonoma; California Virtual Academy at Sutter; and
California Virtual Academy at Fresno.

Shall Exclude: All managers, supervisors, classified employees, confidential
employees, and casual substitutes within the meaning of the Educational Employment
Relations Act.
Pursuant to PERB Regulation section 33450 (Cal. Code Regs., tit. 8, § 31001 et seq.),
within ten (10) days following issuance of a notice of decision on the parties, California
Virtual Academies shall post a copy of the notice of decision conspicuously on SharePoint and
send the notice of decision via e-mail to all bargaining unit members. The notice of decision
shall remain posted on SharePoint for a minimum of fifteen (15) workdays.
Dated:_______________________ 	CALIFORNIA VIRTUAL ACADEMIES
By________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR A MINIMUM OF
FIFTEEN (15) WORKDAYS. REASONABLE STEPS SHALL BE TAKEN TO ENSURE
THAT THIS NOTICE IS NOT REDUCED IN SIZE, ALTERED, DEFACED OR COVERED
WITH ANY OTHER MATERIAL.
2