Monterey Peninsula Unified School District (PERB 2530E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ERIC M. MOBERG,
Charging Party, 	Case No. SF-CE-3002-E
v. 	PERB Decision No. 2530
MONTEREY PENINSULA UNIFIED SCHOOL 	June 19, 2017
DISTRICT,
Respondent.
Appearances: Eric Michael Moberg, on his own behalf; Lozano Smith by Mark K.
Kitabayashi, Attorney, for Monterey Peninsula Unified School District.
Before Gregersen, Chair, Banks and Winslow, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Eric M. Moberg (Moberg) from the dismissal (attached) by the
PERB Office of the General Counsel (OGC) of his unfair practice charge against the Monterey
Peninsula Unified School District (MPUSD or District). The charge alleged that the District
violated the Educational Employment Relations Act (EERA)1 by retaliating against Moberg
and interfering with his protected rights when it allegedly conspired with other public school
employers to prevent him from obtaining or keeping a job.
The Board has reviewed the case file in its entirety and has fully considered the relevant
issues and contentions on appeal. Based on this review, the Board finds the dismissal letter
1EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all
statutory references herein are to the Government Code.

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accurately describes the allegations included in the unfair practice charge, as amended. The
dismissal letter is well reasoned and in accordance with applicable law.
We therefore adopt the dismissal letter as the decision of the Board itself, as
supplemented by the discussion below.
SUMMARY OF FACTUAL ALLEGATIONS
Moberg was employed by the District as a probationary certificated employee in the
2009-2010 school year. In the middle of that school year the District determined to not re-elect
him as an employee for the following school year and also initiated mid-year dismissal
procedures for cause, pursuant to Education Code section 44948.3.2 Moberg filed an unfair
practice charge against the District in March 2010, alleging that it was motivated to dismiss
him because of his protected activities, which included filing grievances.3 The Board
dismissed this charge in Monterey I, supra, PERB Decision No. 2381, which concluded that
Moberg had failed to establish a nexus between his protected activity and the adverse action.
After his employment with the District ended, Moberg worked in three other school
districts: Hartnell Community College District (Hartnell), Cabrillo Community College
District (Cabrillo), and West Valley-Mission Community College (West Valley-Mission). The
theory of Moberg’s unfair practice charge, as amended, alleges that the District, through its
agents and attorneys of the firm Lozano Smith, conspired with various administrators and
attorneys representing the districts employing him after MPUSD to cause his dismissal from
2 As did the OGC, we take notice of PERB’s own records, including but not limited to
Monterey Peninsula Unified School District (2014) PERB Decision No. 2381 (Monterey I).
(County of Riverside (2012) PERB Decision No. 2280-M.)
3 Moberg also appealed his for-cause termination to the superior court and to the Court
of Appeal for the Sixth District. He was not successful in overturning the District’s
termination of his employment.
2

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those districts. In short, Moberg alleges that MPUSD and its agents blacklisted him in
retaliation for his protected activity while employed at MPUSD.
The unfair practice charge, as amended, also alleges that an attorney from Lozano
Smith, Matthew Hicks (Hicks) interfered with protected rights when on November 10, 2014,
he directed Moberg not to communicate with any employee of MPUSD.
THE DISMISSAL
1. 	Standing to Pursue a Charge Against MPUSD
At the time this charge was filed, Moberg’s litigation against the MPUSD in Case No.
SF-CE-2830-E had not ended, since the Board’s decision did not issue until June 27, 2014
(Monterey I, supra, PERB Decision No. 2381.) Thus, there was a question as to whether he
was an “applicant for re-employment” within the meaning of EERA section 3543.5,
subdivision (a).4 The OGC noted that seeking reinstatement as a remedy in an unfair practice
case does not make one an applicant for employment.
Nevertheless, the OGC concluded that Moberg did have standing to pursue his
allegations of blacklisting. Because EERA protects applicants for employment, and PERB
Regulation 32602, subdivision (b) does not state that unfair practice charges may only be filed
against an employee’s current employer, the OGC reasoned that Moberg articulated a viable
theory in support of his legal standing to file this charge.
4 EERA section 3543.5 provides in pertinent part:
“It is unlawful for a public school employer to . . . (a) Impose or
threaten to impose reprisals on employees, to discriminate or
threaten to discriminate against employees, or otherwise interfere
with, restrain, or coerce employees because of their exercise of
rights guaranteed by this chapter. For purposes of this
subdivision, ‘employee’ includes an applicant for employment or
reemployment.”
(Emphasis added.)
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2. 	Blacklisting
Relying on precedent established by the National Labor Relations Board (NLRB),5 the
OGC agreed with Moberg that EERA’s protection against reprisals, discrimination and
interference prohibit blacklisting. In order to establish a violation, according to the OGC, it
must be shown that the respondent interfered with the employment process by causing or
attempting to cause the potential employer not to hire the applicant because of his or her
protected activities. (Dismissal letter, pp. 7-8.)
However, the OGC concluded that Moberg had failed to allege facts sufficient to
support his allegation that MPUSD had interfered with his employment at any of the post-
MPUSD districts. The only allegation of contact between MPUSD and a subsequent employer
occurred when Moberg asked MPUSD to provide him with written verification of employment
so he could present it to West Valley-Mission. MPUSD refused, insisting on providing the
verification directly to West Valley-Mission. Moberg did not allege facts that MPUSD did
anything other than provide the verification. With respect to Moberg’s allegations of a
conspiracy by and between the attorneys representing MPUSD and the subsequent districts, the
OGC determined that there was nothing more than speculation, which is not sufficient to
establish a prima facie case. (Dismissal letter, pp. 8-10.)
3. 	Unlawful Directive
The OGC dismissed this allegation concerning Hicks’s November 10, 2014 e-mail
message directing Moberg not to have direct communications with current or former
employees of MPUSD. Although the Board’s decision in Los Angeles Community College
5 When interpreting EERA, it is appropriate for PERB to derive guidance from court
decisions interpreting the National Labor Relations Act and parallel provisions of California
labor relations statutes. (See, e.g., San Diego Teachers Assn. v. Superior Court (1979)
24 Cal.3d 1, 12-13; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
4

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District (2014) PERB Decision No. 2404 (Los Angeles) held that an employer’s directive to an
employee under investigation for alleged wrongdoing prohibiting him from communications
with employees or students was an unlawful restriction on protected activity, the OGC
concluded that this principle did not apply to Hicks’s directive. At the time the e-mail was
sent, Moberg was not an employee of MPUSD, so the District had no ability to enforce the
directive, and there could be no implied threat in the e-mail, according to the OGC.
Moreover, the e-mail was sent during or in the context of an administrative hearing
concerning Moberg’s fitness to hold a teaching credential in which he represented himself. As
the OGC reasoned: “Rather than an employer’s directive to an employee, Hicks’s directive
would be more accurately characterized as a communication between opposing counsel, as
Hicks and Charging Party effectively were in Charging Party’s CTC matter.”6 (Dismissal
letter, p. 11.)
MOBERG’S APPEAL
The appeal takes issue with the OGC’s analysis of his blacklisting allegations, claiming
that it rewards the District and its lawyer-agents for the ongoing conspiracy to keep Moberg
from obtaining and maintaining employment.
Moberg also asserts that the dismissal of the interference charge regarding the Hicks
directive against contacting MPUSD employees is not consistent with PERB precedent, and
argues that the order, issued in the context of a credential revocation hearing, is so broad as to
apply to PERB cases. Because pursuing and litigating unfair practices is protected conduct,
Moberg argues that the directive interfered with EERA-protected activity.
Moberg also objects to the OGC’s failure to address “new facts” from Cabrillo as
alleged in the Fifth Amended Charge, and its failure to address his repeated allegation that
6 “CTC” refers to the Commission on Teacher Credentialing.
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Lozano Smith failed to properly verify its position statements because the verification pre-
dated when the position statement was completed.
DISCUSSION
Moberg’s appeal generally reiterates facts alleged in the unfair practice charge, as
amended, and restates arguments made to the OGC, failing to explain why the OGC was in
error in concluding that Moberg’s conspiracy allegations were wholly speculative. Before
considering the merits of the appeal, we consider Moberg’s request to present new evidence.
Request to Present New Evidence
On June 28, 2016, after the filings in this appeal were complete, pursuant to PERB
Regulation 32635, subsection (b), Moberg submitted to the Board a request to present new
evidence in the form of a November 1, 2012 e-mail from Cabrillo Dean of Health, Athletics,
Wellness, and Kinesiology, Kathleen Welch (Welch) to Cabrillo Human Resources Director
Loree McCawley (McCawley). The e-mail says that Welch learned that Moberg’s (then
employed by Cabrillo) transcript/degrees needed to be verified and instructed: “Please call
your counterpart at Hartnell. He no longer is a faculty member at Hartnell, but they went
through threats of lawsuits . . . so we need to do this carefully.”
Under PERB Regulation 32635, subdivision (b),7 Moberg alleges he has good cause to
present the new supporting evidence on appeal because he did not become aware of the
document until June 21, 2016, during the administrative hearing of his unfair practice
complaint against Cabrillo. Moberg asserts that this e-mail is relevant because it demonstrates
union animus and intent by Hartnell to conspire with Cabrillo to continue Hartnell’s retaliation
against him.
7 PERB Regulation 32635, subdivision (b) provides: “Unless good cause is shown, a
charging party may not present on appeal new charge allegations or new supporting evidence.”
6

Our cases have found good cause when “the information provided could not have been
obtained through reasonable diligence prior to the Board agent’s dismissal of the charge.”
(Sacramento City Teachers Association (Ferreira) (2002) PERB Decision No. 1503; American
Federation of State County and Municipal Employees (McGuire) (2012) PERB Decision
No. 2286-S, p. 3.) Moberg was not aware this e-mail existed until after this charge had been
dismissed, and he could not have reasonably learned of it before the administrative hearing in
his unfair practice case against Cabrillo because of the lack of discovery rights in PERB
proceedings (except under extraordinary circumstances). We conclude that there is good cause
to present this evidence.
Upon consideration of this new evidence, we conclude that it has no bearing on the
issues of this case. The e-mail contains no facts that even remotely show any wrongdoing or
improper motive by respondent in this case, MPUSD. Nor does the e-mail support Moberg’s
speculative allegation that Lozano Smith was “stalking” him on behalf of MPUSD. The e-mail
is therefore irrelevant to the allegations against MPUSD contained in the unfair practice
charge, as amended.
Blacklisting Allegations and Standing
The OGC correctly concluded that an employee has standing to file an unfair practice
charge against a former employer to allege that such employer interfered with the employee’s
attempt to obtain and/or retain subsequent employment. (Dismissal letter, p. 7.)
We agree with the OGC’s determination in the dismissal letter that although EERA
does not explicitly prohibit blacklisting by an employer, EERA’s prohibition against
interference, discrimination and reprisals logically encompasses a former employer’s efforts to
prevent a charging party from obtaining subsequent work because of the charging party’s
protected activity while employed by the former employer. Thus, a charging party may
7

establish a prima facie violation on the basis of blacklisting by showing that a respondent
interfered with the employment process by causing or attempting to cause a potential employer
to refuse to hire the applicant because of the applicant’s union activities or other conduct
protected by EERA. (Towne Ford, Inc. 1998) 327 NLRB 193; NLRB v. Mount Desert Island
Hospital (1st Cir. 1982) 695 F.2d 634, 642; Madison S. Convalescent Center (1982) 260
NLRB 816, 823.)
As the OGC correctly noted, however, Moberg did not allege any facts that showed
MPUSD interfered with his attempts to obtain or maintain subsequent employment by
informing subsequent employers of Moberg’s protected activity, or by any other means. The
only purported contact was between MPUSD and West Valley-Mission, but there was no
allegation that MPUSD conveyed any information about Moberg besides verifying his
employment. In Hartnell Community College District (2015) PERB Decision No. 2452, the
Board held that insisting on providing employment verification directly to a potential employer
was not sufficient to establish a prima facie violation. We also agree with the OGC that
Moberg’s claim that MPUSD conspired with other districts to prevent him from keeping or
obtaining employment is wholly speculative and therefore does not support issuance of a
complaint. For these reasons, we reject Moberg’s assertion that the OGC erred in dismissing
the blacklisting allegations.
The OGC dismissed Moberg’s allegation that MPUSD had provided Hartnell with
information about his court litigation against MPUSD, finding that Moberg had
mischaracterized a memorandum written by a Hartnell administrator that referred to court
records regarding Moberg’s dismissal from MPUSD. The memorandum did not state that the
records were obtained from MPUSD or their attorneys. Even if MPUSD had divulged such
information, it would not necessarily have informed Hartnell of Moberg’s protected activities.
8

According to the OGC “Charging Party’s individual resort to judicial remedies to challenge his
dismissal is not an EERA-protected activity.” (Dismissal letter, p. 9.) We agree that under the
facts alleged here that Moberg’s court case against MPUSD challenging his for-cause
termination was not protected conduct. The facts alleged here differ from those in Jurupa
Unified School District (2012) PERB Decision No. 2283, where employees were acting as a
group to enforce workplace rights through administrative and judicial means.
At the time of the dismissal, the OGC did not have the benefit of the Board’s recent
decision in Walnut Valley Unified School District (2016) PERB Decision No. 2495 (Walnut
Valley). Nevertheless, the dismissal remains correct after applying Walnut Valley to the facts
alleged here. In Walnut Valley, the charging party was allegedly retaliated against after she
questioned certain management directives concerning curricular matters during staff meetings.
The Board held that even though the charging party was the only employee opposing the
management directives in these meetings, her criticism “represent[ed] an attempt to enlist the
support of her fellow employees for mutual aid and protection and/or to protect the
employment interests of the entire group.” (Id. at p. 9.) These activities therefore were
protected by EERA section 3543, subdivision (a), which guarantees employees the right to
“form, join, and participate in the activities of employee organizations . . . for the purpose of
representation on all matters of employer-employee relations.”
Walnut Valley, supra, PERB Decision No. 2495 further noted that the charging party’s
activities may have been protected under the portion of EERA section 3543, subdivision (a)
that gives employees the right to represent themselves individually in their employment
relations with the public school employer. (Walnut Valley at pp. 18-19.) Consequently, the
Board directed that in future cases in which speech or conduct by an individual is alleged to be
9

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protected, PERB must analyze the claim under both the “form, join, and participate” language
and the self-representation guarantee of EERA 3543, subdivision (a). (Walnut Valley at p. 19.)
Walnut Valley, supra, PERB Decision No. 2495 cautioned that the right of self-
representation was not unlimited and must be “tethered to ‘employment relations,’ which
means those matters which are within the scope of negotiations pursuant to EERA section
3543.2 or which are related to the formulation of educational policy, in the case of certificated
employees.” (Walnut Valley at pp. 19-20.)
We agree with the OGC that Moberg’s lawsuit against MPUSD was not protected
activity for reasons explained in the dismissal letter, which concluded that the litigation was
not an activity in which Moberg had joined with other employees to enforce workplace rights.
(Dismissal letter, p. 9.) Nothing in the unfair practice charge, as amended, referred to or can
be fairly interpreted as alleging that Moberg sought to join with other employees to enforce
collective rights. Unlike the charging party in Walnut Valley, supra, PERB Decision No. 2495,
Moberg did not seek to represent interests other than those pertaining only to himself.
Neither can Moberg’s court litigation against MPUSD be deemed protected under the
right of self-representation discussed in Walnut Valley, supra, PERB Decision No. 2495. This
individual law suit challenging the statutory dismissal proceedings MPUSD initiated against
Moberg did not touch on a matter within the scope of negotiations under EERA.8
Directive Not to Communicate with Former Employees
We affirm the OGC’s conclusion that the allegations concerning the Hicks e-mail
should be dismissed because we agree with the characterization that “Hicks’s directive would
be more accurately characterized as a communication between opposing counsel, as Hicks and
8 EERA section 3543.2, subdivision (4)(b) excludes from the scope of representation
causes and procedures for dismissal of certificated employees.
10

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Charging Party effectively were in Charging Party’s CTC matter.” (Dismissal letter, p. 11.) In
light of this, we need not address Moberg’s contention on appeal that the order is overbroad.
The dismissal letter notes at page 11: “It does not appear that this statement can be
considered an unlawful directive, because the statement did not threaten any consequences if
Charging Party attempted to contact MPUSD employees, and Charging Party was neither an
applicant for employment nor an employee of MPUSD at the time.” As we noted in Los
Angeles, supra, PERB Decision No. 2404, p. 8: “The law does not require that a rule
[prohibiting employees from communicating with each other] contain a direct or specific threat
of discipline in order to be found unlawful.” To the extent the quoted portion of the dismissal
letter conflicts with Los Angeles, we reaffirm that Los Angeles remains the law.9
“New Facts” in the Fifth Amended Charge
Moberg asserts that the OGC failed to address in the dismissal letter allegations
concerning Cabrillo in his Fifth Amended Charge. These allegations concern what appear to
be e-mails between administrators at Cabrillo regarding Moberg’s educational qualifications.
According to the Fifth Amended Charge, the e-mails “reveal that Cabrillo had already clearly
decided to terminate Moberg on any pretense available.”
Although not discussed specifically, the OGC summed up Moberg’s various
allegations:
The only other specific allegations regarding conduct by agents
of MPUSD concern Charging Party’s CTC hearing. These
allegations do not demonstrate any attempt by MPUSD to
interfere with Charging Party’s employment by Hartnell,
Cabrillo, West Valley-Mission. . . .”
9 We make no determination on whether Moberg had a right to contact potential
witnesses under the California Discovery Act or similar administrative procedures, as those
matters are outside PERB’s jurisdiction.
11

(Dismissal letter, p. 8.) To the extent the above-quoted passage cannot be construed to
dispose of Moberg’s allegations against Cabrillo in the Fifth Amended Charge, we
consider this a harmless error. Cabrillo was not named as a respondent in this charge,
or any of its amended versions. There was therefore no need for the OGC to explicitly
analyze or dispose of such allegations.
Respondent’s Verifications
MPUSD filed position statements in response to the various amended unfair
practice charges. On at least two occasions, the date of the verification signed by Judy
Durand, MPUSD’s executive director for human resources, predates the date appearing
on the actual statement prepared by Lozano Smith. The warning letter sent to Moberg
on May 22, 2015, addressed his claim as to the first three position statements by
summarily stating that the verifications were in compliance with PERB Regulation
32360. Moberg argues on appeal that the OGC erred by failing to address a
discrepancy between the dates of MPUSD’s position statements and the verifications
filed in response to the Fifth Amended Charge. This argument is raised in the context
of Moberg’s assertion that the OGC erred by not addressing the nexus factors applied to
determine animus in a discrimination case. According to Moberg, the discrepancy in
dates between the verification and the position statements demonstrate glaring
inconsistencies in MPUSD’s “narrative.” (Appeal, p. 6.)
The OGC did not err by failing to address this issue or in failing to discuss the
nexus factors at all, because it properly concluded that Moberg failed to assert that
MPUSD had taken any adverse action against him. As noted above, we agree with the
OGC’s conclusion that there were no facts alleged that MPUSD caused or attempted to
cause other employers not to hire or retain Moberg as an employee because of his
12

protected activity, whether by informing other employers of his protected activity or
providing inaccurate information about Moberg because of his protected activity, or by
any other means. Instead, there was only speculation. To the extent the discrepancy
between verification and date of the position statement is part of Moberg’s nexus
theory, it is not legally relevant because of the determination that there was no adverse
action.
To the extent Moberg’s assertion regarding the verification discrepancy can be
interpreted as an independent ground for appeal, we reject such claim. MPUSD
verified its position statement by its executive director of human resources. There is
nothing extraordinary about the fact that the verifications were signed one day before
the position statements were finalized and filed with PERB. To assume and assert that
this proves some dishonesty, or that the position statements were altered after Durand
signed them is pure speculation. We agree with the OGC’s determination that the
verifications complied with PERB regulations.
ORDER
The unfair practice charge in Case No. SF-CE-3002-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Gregersen and Member Banks joined in this Decision.
13

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1139
PERB 	Fax: (510) 622-1027
March 21, 2016
Eric Moberg
Re: 	Eric M. Moberg v. Monterey Peninsula Unified School District
Unfair Practice Charge No. SF-CE-3002-E
DISMISSAL LETTER
Dear Mr. Moberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 11, 2013. Eric M. Moberg (Moberg or Charging Party)
alleges that the Monterey Peninsula Unified School District (MPUSD or Respondent) violated
the Educational Employment Relations Act (EERA or Act)' by retaliationg against him for his
protected activity and interfering with his right to engage in protected activity.
Charging Party was informed in the attached Warning Letter dated May 22, 2015, that the
above-referenced charge did not state a prima facie case. Charging Party was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, he should amend the charge. Charging Party was further advised that,
unless he amended the charge to state a prima facie case or withdrew it on or before June 12,
2015, the charge would be dismissed.
An extension of time was granted, and a timely third amended charge was filed on June 29,
2015." On January 27, 2016, a fourth amended charge was filed. On March 4, 2016, a fifth
amended charge was filed.
EERA is codified at Government Code section 3540 et seq. PERB's Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. The text of the EERA
and PERB Regulations may be found at www.perb.ca.gov.
2 Previous amended charges were filed on September 24, 2013, and January 2, 2015.

Party settled the case with SMCOE, entering into a settlement agreement that included a
confidentiality clause. SMCOE was represented by attorney Eugene Whitlock (Whitlock) in
SF-CE-3002-E
March 21, 2016
Page 2
FACTUAL SUMMARY'
Charging Party was first employed by MPUSD for the 2009-2010 school year. Prior to that,
Charging Party was employed by the San Mateo County Office of Education (SMCOE). He
filed four unfair practice charges (UPCs) against SMCOE, one of which, Case No. SF-CE-
2744-E, resulted in a complaint issued by PERB's Office of the General Counsel. Charging
these cases.
Employment by MPUSD
During the 2009-2010 school year, MPUSD decided not to re-elect Charging Party for the
following school year. He was later dismissed by MPUSD. Among the reasons cited was
dishonesty based on Charging Party's failure to disclose his reasons for leaving SMCOE,
which MPUSD learned of after SMCOE provided the settlement agreement to MPUSD.
Charging Party filed a UPC challenging his non-reelection and dismissal by MPUSD, Case No.
SF-CE-2830-E. The Board ultimately upheld the dismissal of that charge for failure to state a
prima facie case. (Monterey Peninsula Unified School District (2014) PERB Decision
No. 2381.) As discussed in the Board's decision, Charging Party also unsuccessfully
challenged his dismissal through the courts. (Ibid.) MPUSD was represented by the law firm
Lozano Smith throughout these administrative and judicial proceedings.
Post-MPUSD Employment
In 2010, Charging Party was hired as an adjunct faculty member at Hartnell Community
College District (Hartnell).
In January 2012, Charging Party was hired to teach at Cabrillo Community College District
Cabrillo) for the Spring 2012 semester. He was subsequently hired for the Fall 2012 semester.
On September 7, 2012, a Hartnell administrator sent an e-mail message regarding the
November 2012 elections. The message contained guidelines as to the types of election-related
activities that were permitted and prohibited on campus. Another instructor responded to the
e-mail message asking whether it would be appropriate to discuss "the economic impact of
these ballot initiatives" in class. Ann Wright (Wright), identified in the charge as "union
president," responded:
This summary includes information contained in the original charge and five amended
charges, as well as information from PERB's own records. (See County of Riverside (2012)
PERB Decision No. 2280-M [PERB may take official notice of its own records].)

SF-CE-3002-E
March 21, 2016
Page 3
All,
I have asked CTA legal for guidance on this. I think some of these guidelines,
which were developed by Lozano Smith, might be too restrictive. I know some
colleges have actually developed curriculum for classroom use on these issues.
I will share promptly what I have learned.
Charging Party himself responded to Wright's message by providing the text of a news article
regarding a case where sanctions were imposed on Lozano Smith and one of its attorneys.
On September 24, 2012, Charging Party was terminated by Hartnell after invoking his right to
union representation and threatening to file a UPC. Charging Party filed a UPC regarding that
termination." The law firm of Liebert Cassidy Whitmore represents Hartnell in that case.
On October 2, 2012, Terri Pyer (Pyer), a Hartnell administrator, issued a memorandum
explaining the reasons for Charging Party's termination. Among them were:
States that he was never dismissed from any job, and never resigned to
avoid being dismissed, but court records for a subsequent dismissal
(from MPUSD) show that he executed resignation settlement with San
Mateo County Office of Education in early 2009.
. 	Certified that his application was complete, but he omitted the San
Mateo job from his application, despite explicit instructions to include
every job in last 15 years. . . .
On October 24, 2012, the Commission on Teacher Credentialing (CTC) informed Charging
Party that it was withdrawing, for lack of jurisdiction, a letter of inquiry to him regarding
allegations of misconduct by MPUSD.
On November 4, 2012, Charging Party's immediate supervisor at Cabrillo, James Weckler
(Weckler) learned that Charging Party had filed UPCs against MPUSD and Hartnell. Two
days later, November 6, 2012, Charging Party was placed on administrative leave.
On November 7, 2012, Cabrillo Human Resources Director Loree McCawley (McCawley) told
Charging Party's union representative that he had a reputation of being litigious.
*The Board ultimately reversed the dismissal of that UPC and remanded for issuance of
a complaint. (Hartnell Community College District (2015) PERB Decision No. 2452
(Hartnell).)
According to Charging Party's subsequent UPC against Cabrillo, Case No. SF-CE-
2994-E, Charging Party sent an e-mail message to Weckler, among others, that referred to the
Hartnell charge and included it as an attachment.

SF-CE-3002-E
March 21, 2016
Page 4
Weckler attempted to schedule an investigatory meeting with Charging Party for November 14,
2012. However, Charging Party reminded Weckler that he had arranged for a substitute
instructor to teach his class that day, in part to prepare for an oral argument before the Court of
Appeal, Sixth Appellate District, in his civil case against MPUSD. Charging Party also
requested that Cabrillo have its attorney, Vincent Hurley (Hurley) state "whether or not he has
any attorney-client relationships with (a) SMCOE, (b) MPUSD, (c) Hartnell College, or (d)
Lozano Smith. Also, please inform me as to any contacts anyone at Cabrillo has had, relating
to me, from Lozano Smith or Hartnell College."
During a meeting on November 13, 2012, Hurley refused to deny that he had a "attorney-client
relations" with Lozano Smith.
On November 14, 2012, Weckler demanded another meeting with Charging Party for
November 15, 2012, despite Charging Party's previous notification that he would be at oral
argument in his civil case against MPUSD that day.
On December 13, 2012, Cabrillo informed Charging Party that he would not be offered future
employment there." Charging Party filed a UPC against Cabrillo.'
On February 19, 2013, Cabrillo informed Charging Party that it was continuing to share
information about Charging Party with its own attorney, Hurley.
On March 5, 2013, Hurley filed a position statement on behalf of Cabrillo in Case No. SF-CE-
2994-E. Hurley did not deny that he had ties to Lozano Smith.
On March 19, 2013, Hurley sent a letter advising Charging Party to "seriously consider the
consequences" of pursuing various actions against Cabrillo. Hurley refused to divulge
information received from Lozano Smith. Hurley also stated that he had reviewed "many
public records of the case reports of [Charging Party's] litigation over the past years."
On August 21, 2013, Charging Party was hired by the West Valley-Mission Community
College District (West-Valley Mission). Charging Party later filed a UPC, Case No. SF-CE-
3060-E, against West Valley-Mission after it declined to offer him teaching assignments for
the Fall 2014 term. West-Valley Mission is represented by Liebert Cassidy Whitmore in that
case.
" Charging Party later received copies of internal e-mail messages regarding his
termination suggesting that Cabrillo's reasons for terminating him were pretextual.
The Board reversed the dismissal of that UPC and remanded for issuance of a
complaint. (Cabrillo Community College District (2015) PERB Decision No. 2453.)
Charging Party specifically alleged in that case that West Valley-Mission retaliated
against him for engaging in protected activity, issued an overbroad directive that interfered
with his rights to communicate with his co-workers, and was conspiring, through its legal
counsel, with other employers to deny him employment. PERB's Office of the General

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On December 12, 2013, Charging Party sent a letter to a Lozano Smith attorney requesting that
MPUSD provide him with a written employment verification that he could then provide to
West Valley-Mission, which would eliminate the need for direct contact between MPUSD and
West Valley-Mission. MPUSD, however, insisted on providing the information to West
Valley-Mission directly.
On March 20, 2014, an attorney from the law firm of Atkinson, Andelson, Loya, Ruud, and
Romo, representing West Valley-Mission, refused to provide information to Charging Party
regarding attorney-client relationships between West Valley-Mission and various law firms
representing MPUSD, Hartnell, and Cabrillo.
On November 10, 2014, Matthew Hicks (Hicks), a Lozano Smith attorney representing
MPUSD, sent Charging Party the following e-mail message:
Dear Mr. Moberg:
Without reference to any other statement in your email below, in response to
your inquiry about the PERB matter you reference, please transmit any email or
documentation with respect to that matter to Lozano Smith attorney Ashley
Amerzian [sic] and cc Mr. Kitabayashi.
Also, and in follow up to my earlier email today regarding the CTC matter,
please be advised that you shall not have any direct communications with
current or former employees of [MPUSD]. If you have an email regarding the
CTC matter and MPUSD employees, please transmit that to me and cc Mr.
Kitabayashi.
Thank you.
In December 2014, MPUSD, represented by Lozano Smith attorney Mark Kitabayashi
Kitabayashi), requested to join as a "party of interest" in an administrative hearing involving
the CTC. The administrative law judge (ALJ) denied the request. MPUSD also moved to
quash a subpoena requested by Charging Party. The ALJ denied that motion. Kitabayashi
attended the hearing, interrupted the ALJ, and "accost[ed]" Charging Party.
In its closing brief to the ALJ, the CTC argued:
Respondent has had more than his day in court. Clearly, disciplinary action had
no chilling effect upon his constitutional rights to file grievances[,] PERB
claims[,] or lawsuits. As to other teachers and staff, rather than an adverse
effect, action against respondent's credentials will vindicate the horrible
Counsel issued a complaint on the first two allegations after Charging Party withdrew the third
one.

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Page 6
experiences Monterey staff have endured for the last five years as respondent
continued, and continues to challenge his justifiable dismissal for being unfit to
teach.
In March 2015, the ALJ issued a proposed decision rejecting CTC's case against Charging
Party. The CTC subsequently adopted the proposed decision and issued Charging Party's
credential.
On November 10, 2015, Charging Party filed an unfair labor practice charge with the National
Labor Relations Board (NLRB), alleging that Menlo College, a private employer, terminated
him in retaliation for his efforts to form a union there.
On an unspecified date, Charging Party filed an NLRB charge against the University of San
Francisco (USF), a private employer, alleging that it "blacklist[ed]" Charging Party.
On January 7, 2016, Napa Valley Community College District (Napa Valley) terminated
Charging Party's employment, citing his 2009 settlement agreement with SMCOE. Charging
Party filed Case No. SF-CE-3166-E. Charging Party alleges that Napa Valley is represented
by a Liebert Cassidy Whitmore attorney.
On January 14, 2016, Charging Party filed Case No. SF-CE-3167-E against San Mateo
Community College District (SMCCD), based on its refusal to interview him for a position and
its threat to sue him for breaching the SMCOE settlement agreement. According to Charging
Party, Whitlock is now an SMCCD employee.
DISCUSSION
I. 	Standing
The Warning Letter questioned whether Charging Party had standing to pursue this charge
against MPUSD, because he was neither an employee of MPUSD nor an applicant for
employment by MPUSD at the time of the events alleged.". As discussed in the Warning
Letter, Charging Party maintains that he was an "applicant for employment" within the
meaning of EERA section 3543.5(a), during the time his prior UPC against MPUSD was
pending, because he was seeking reinstatement to his previous position. PERB has determined
that in order to be considered an "applicant," an individual must have taken some action, such
as applying for a position, or be on a re-employment list. (Chula Vista Elementary School
District (2011) PERB Decision No. 2221.) Merely seeking reinstatement as a remedy in a
UPC case does not make one an applicant for employment.
Nevertheless, it is arguable that Charging Party does have standing to file this charge, despite
the fact that he was not an employee of, or an applicant for employment by, MPUSD during
"To the extent Charging Party was challenging MPUSD's conduct toward him when he
was an employee, the Warning Letter concluded that those allegations would be untimely.

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Page 7
the relevant time period. EERA defines "Public school employee" or "employee" as "a person
employed by a public school employer except persons elected by popular vote, persons
appointed by the Governor of this state, management employees, and confidential employees."
(Gov. Code, $ 3540.1, subd. (i).) EERA section 3543.5(a), which is at issue in this case,
makes it unlawful for an employer to
[ijmpose or threaten to impose reprisals on employees, to discriminate or
threaten to discriminate against employees, or otherwise to interfere with,
restrain, or coerce employees because of their exercise of rights guaranteed by
this chapter.
The protections of section 3543.5(a) expressly extend to "an applicant for employment or
reemployment." (Ibid.)
On its face, EERA is not limited to prohibiting an employer from interfering with the rights of
its own employees, as opposed to those employed or seeking employment elsewhere.
Moreover, PERB Regulations do not specify that an unfair practice charge by an employee
may be filed only against his or her own employer. (PERB Regulation 32602(b).) And such a
narrow interpretation of EERA's protections would be inconsistent with the National Labor
Relations Board's (NLRB) cases prohibiting "blacklisting," discussed below.
Although Charging Party was not an employee or an applicant for employment with MPUSD,
it does appear that at the relevant times alleged in the charge, he was either an employee or an
applicant for employment of various other public school employers. As a result, there is at
least a viable legal theory that Charging Party has standing to maintain this charge against
MPUSD.
II. 	Blacklisting
Charging Party alleges that MPUSD has "blacklisted" him, i.e., prevented or attempted to
prevent him from obtaining or maintaining employment with other employers. Charging Party
acknowledges that EERA does not expressly prohibit blacklisting, but argues that it is
encompassed in EERA's prohibitions against interference, discrimination, and reprisals.
The National Labor Relations Act (NLRA) has been interpreted to prohibit blacklisting. " To
establish such a violation, it must be shown "that the respondent interfered in the employment
process by causing or attempting to cause a potential employer not to hire the applicant because
"Charging Party asserts that "section 704" of the NLRA prohibits blacklisting. The
NLRA does not have a section 704, and does not otherwise expressly prohibit blacklisting.
Rather, this appears to be a reference to New York Labor Law section 704, which makes it
unlawful, among other things, for an employer "[to prepare, maintain, distribute or circulate
any blacklist of individuals for the purpose of preventing any of such individuals from
obtaining or retaining employment because of the exercise by such individuals of any of the
rights guaranteed by" the statute.

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Page 8
of the applicant's union or other protected concerted activities." (Towne Ford, Inc. (1998) 327
NLRB 193, 196, Member Brame, dissenting.)" Thus, a violation has been found where the
respondent directly informs a potential employer of the applicant's protected activities.
(Springfield Manor (1989) 295 NLRB 17, 30 [informing subsequent employer that employee
was terminated because of union activity]; Madison S. Convalescent Ctr. (1982) 260 NLRB 816,
823 [employee described as "union agitator]; NLRB. v. Mount Desert Island Hosp. (1st Cir.
1982) 695 F.2d 634, 642 [employee described as a "troublemaker"].)
In this case, Charging Party alleges no facts to support the allegation that MPUSD has interfered
with the employment process at Hartnell, Cabrillo, West Valley-Mission, SMCCD, Napa Valley,
USF, or Menlo College by informing those employers of his protected activity. Charging Party's
allegations against MPUSD largely consist of the same allegations made in the charges against
the other employers.
The only allegation of contact between MPUSD and a subsequent employer is when, in
December 2013, Charging Party requested that MPUSD provide him with a written
employment verification that he could then provide to West Valley-Mission, but MPUSD
insisted on providing the information directly to West Valley-Mission. However, there is no
allegation that MPUSD did anything but provide the information requested. Further, the Board
has specifically held that a similar allegation-that Hartnell refused to provide Charging Party
with employment verification, insisting on contacting Charging Party's subsequent employers
directly-was not sufficient to establish a prima facie case. (Hartnell, supra, PERB Decision
No. 2452.)
The only other specific allegations regarding conduct by agents of MPUSD concern Charging
Party's CTC hearing. These allegations do not demonstrate any attempt by MPUSD to interfere
with Charging Party's employment by Hartnell, Cabrillo, West Valley-Mission, SMCCD, Napa
Valley, USF, or Menlo College. 12
Charging Party's claim that his treatment by his subsequent employers is suggestive of a
conspiracy involving MPUSD appears to be based on nothing more than speculation.
Speculation is not sufficient to establish a prima facie case. (State of California (Department
of Food and Agriculture) (1994) PERB Decision No. 1071-S (Food and Agriculture); see also
State of California (Department of Forestry & Fire Protection) (2004) PERB Decision
No. 1690-S [unsupported allegations of the existence of a conspiracy not sufficient].)
ITwo NLRB blacklisting cases were discussed in the proposed decision adopted by
the Board in Los Angeles Unified School District (2001) PERB Decision No. 1469, but neither
the proposed decision nor the Board decision found an unfair practice based on a blacklisting
theory.
Nor, contrary to Charging Party's claims, is the statement in CTC's closing brief
evidence of conduct by MPUSD. In any event, Charging Party mischaracterizes the statement
as an acknowledgment of an attempt to chill the exercise of his protected rights. Based on the
context, however, the statement appears to be a legal argument that the proposed action against
Charging Party's credential will not chill his exercise of protected rights.

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Page 9
For instance, Charging Party contends that the October 2, 2012 memorandum from Pyer
provides evidence of contact between Hartnell and MPUSD, arguing that the memorandum
"refer[ed] to information and documents supplied to Hartnell from MPUSD by Lozano Smith."
This is not an accurate characterization of the memorandum. The memorandum refers to
'court records for a subsequent dismissal (from MPUSD)" and to the SMCOE settlement
agreement. It does not state that these records were obtained from MPUSD or Lozano Smith,
and court records, although not covered by the California Public Records Act (Gov. Code, $
6250 et seq. [CPRA]), are nevertheless public records. (Copley Press, Inc. v. Superior Court
(1992) 6 Cal.App.4th 106, 111.)
Even if MPUSD did provide Hartnell with information from Charging Party's court cases against
MPUSD, this would not necessarily inform Hartnell of Charging Party's protected activities.
This is because Charging Party's individual resort to judicial remedies to challenge his dismissal
is not an EERA-protected activity. (Cf. Jurupa Unified School District (2015) PERB Decision
No. 2420 [attending a court hearing regarding the termination of another employee was not, in
itself, protected activity]; cf. also Jurupa Unified School District (2012) PERB Decision
No. 2283 [protected activity includes "with one or more other employees, seeking to enforce
workplace rights through administrative or judicial means" (emphasis added)].) Therefore,
Charging Party's allegation regarding the Pyer memorandum relies on two-fold speculation,
that: (1) MPUSD was the source of the court records; and (2) MPUSD disclosed, in addition to
the court records, Charging Party's participation in protected activity. As with the other
speculation contained in the charge, this speculation is not sufficient to state a prima facie case.
Food and Agriculture, supra, PERB Decision No. 1071-S.)
Charging Party also asserts that the September 7, 2012 e-mail message from Wright "reveal[s]
manipulation by Hartnell of [Wright] to intimidate Moberg by informing Moberg that Lozano
Smith was advising both MPUSD and Hartnell." This assertion, too, is based entirely on
speculation. (Food and Agriculture, supra, PERB Decision No. 1071-S.) Even to the extent
Charging Party would use Wright's e-mail message more narrowly, as evidence that Lozano
Smith provided legal guidance to Hartnell regarding election-related activities on campus, this
fact does not support the conclusion that MPUSD and Hartnell were "conspiring" against
Charging Party.
Charging Party appears to suggest a connection between MPUSD and Cabrillo by relying on
Weckler's attempts to schedule meetings on days on which Charging Party would either be
preparing for or participating in oral argument in a civil case against MPUSD. Charging
Party's speculation that this means Cabrillo was trying to assist MPUSD is insufficient to
establish a prima facie case. (Food and Agriculture, supra, PERB Decision No. 1071-S.)
In the absence of any specific facts showing that MPUSD attempted to influence Charging
Party's subsequent employers, Charging Party relies heavily on the statements, or non-
statements, of the attorneys representing MPUSD and other employers. Charging Party cites
numerous instances where he has accused, in unfair practice charges, those employers or their
attorneys of conspiring or collaborating to deny him employment. According to Charging

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Page 10
Party, those accusations have not been specifically denied in the employers' position
statements.
A respondent's failure to deny an allegation in a UPC is not an admission of its truth. The
filing of a position statement is optional. (PERB Regulation 32620(c) ["The respondent . . .
may state its position on the charge during the course of the inquiries" (emphasis added)].)
This is in contrast with an answer to a complaint issued by the Office of the General Counsel.
An answer must contain a "specific admission or denial of each allegation contained in the
complaint," and the failure to file an answer may be found to "constitute[] an admission of the
truth of the material facts alleged in the charge and a waiver of respondent's right to a
hearing." (PERB Regulation 32644, subds. (b)(5), (c).) As a result, the failure of various
respondents to specifically deny Charging Party's conspiracy allegations does not assist
Charging Party in stating a prima facie case.
Charging Party also cites instances where he has requested that employers or their attorneys
provide information regarding their attorney-client relationships. According to Charging
Party, those requests have been met with refusals, citing attorney-client privilege. The refusal
to provide such information to Charging Party also does not assist in stating a prima facie case.
Private law firms representing public school employers are not under any obligation to provide
information to an individual employee. Moreover, public school employers do not have a duty
under EERA to provide information to individual employees, applicants for employment, or
former employees. (Orange Unified School District (2004) PERB Decision No. 1670.) While
they may have a duty to do so under CPRA, a possible violation of that statute is not prima
facie evidence of a conspiracy.
Finally, no inference of a conspiracy can be drawn from the admission of Hurley, Cabrillo's
attorney, to having reviewed public records regarding Charging Party's various administrative
and civil actions against MPUSD. It does not follow from this fact that MPUSD was the
source of this information, or even if it was, that it provided the information before Cabrillo
terminated Charging Party's employment.
Because the factual allegations in the charge are insufficient to establish any attempt by
MPUSD to interfere with Charging Party's employment by other employers, the allegation that
MPUSD and its agents have attempted to "blacklist" him is hereby dismissed.
III. 	Unlawful Directive
Charging Party also alleges that MPUSD interfered with his rights under EERA through
Hicks's November 10, 2014 e-mail message regarding contacting current or former MPUSD
employees.
The Board recently reiterated that the test for whether a respondent has interfered with the
rights of employees under the EERA does not require that unlawful motive be established, only
that at least slight harm to employee rights results from the conduct. (Los Angeles Community
College District (2014) PERB Decision No. 2404 (Los Angeles).) In Los Angeles, the Board
adopted the NLRB's standards regarding employer directives regarding protected activity.

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Page 11
Under those standards, directives that explicitly restrict protected activity are unlawful. (Ibid.)
In the absence of an explicit restriction, the directive may still be unlawful if: "(1) employees
would reasonably construe the language to prohibit [protected] activity; (2) the rule was
promulgated in response to union activity; or (3) the rule has been applied to restrict the
exercise of [protected] rights.'" (Ibid., quoting Lutheran Heritage Village-Livonia (2004) 343
NLRB 646, 647.)
The Board in Los Angeles, supra, PERB Decision No. 2404, held that the employer unlawfully
interfered with employee rights by placing an employee under investigation and advising the
employee, "You are hereby directed not to contact any members of the faculty, staff or
students." The Board further made clear that a directive may be unlawful even if it does not
"threaten any discipline or other consequence for failure to comply."
This appears to be consistent with the Board's case law regarding implied threats. For
instance, in Los Angeles Unified School District (1988) PERB Decision No. 659, the Board
found an implied threat where a school principal directed employees to talk to her before
talking to the union, based on the manner of the statement and the surrounding circumstances,
which included the employees' belief that the principal could eliminate their jobs. As the
Board explained in City of Oakland (2014) PERB Decision No. 2387-M, an employer's
statements must be examined carefully to determine if they are an implied threat, because "an
employer's words are not merely words; they are always, at least implicitly, backed up by the
employer's power to control the terms and conditions of employment."
The directive in this case was: "Also, and in follow up to my earlier email today regarding the
CTC matter, please be advised that you shall not have any direct communications with current
or former employees of [MPUSD]." This statement was not accompanied by any direct threat
toward Charging Party.
It does not appear that this statement can be considered an unlawful directive, because the
statement did not threaten any consequences if Charging Party attempted to contact MPUSD
employees, and Charging Party was neither an applicant for employment nor an employee of
MPUSD at the time. Because of Charging Party's status, MPUSD had no ability to enforce
Hicks's directive by taking an employment-related adverse action against Charging Party. As
a result, no threat is implicit in Hicks's e-mail message. Although it is conceivable that
MPUSD could have taken some other type of action to attempt to enforce Hicks's directive, the
e-mail message did not contain any express threat to do so. Rather than an employer's
directive to an employee, Hicks's directive would be more accurately characterized as a
communication between opposing counsel, as Hicks and Charging Party effectively were in
Charging Party's CTC matter.
Therefore, the charge fails to state a prima facie case that Hicks's e-mail message interfered
with Charging Party's rights under EERA, and this allegation is hereby dismissed.

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Page 12
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs., tit. 8, $ 32635, subd. (a).) Any document filed with the
Board must contain the case name and number, and the original and five (5) copies of all
documents must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, $8 32135, subd. (a) and 32130; see also Gov. Code, $ 11020, subd.
(a).) A document is also considered "filed" when received by facsimile transmission before
the close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code
Regs., tit. 8, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $$ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs., tit. 8, $ 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit. 8, $ 32135, subd. (c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of

SF-CE-3002-E
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Page 13
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs., tit. 8, $ 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
J. FELIX DE LA TORRE
General Counsel
By
Joseph Eckhart
Regional Attorney
Attachment
cc: Ashley N. Emerzian, Attorney