Alliance College-Ready Public Schools, et al. (PERB 2545E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS LOS ANGELES,
Charging Party,
v.
ALLIANCE COLLEGE-READY PUBLIC
SCHOOLS, ALLIANCE SUSAN & ERIC SMIDT
TECHNOLOGY HIGH SCHOOL, and
ALLIANCE RENEE & MEYER LUSKIN
ACADEMY HIGH SCHOOL.
Respondents.
Case Nos. LA-CE-6025-E &
LA-CE-6027-E
PERB Decision No. 2545
December 28, 2017
Appearances: Bush Gottlieb by Jesús E. Quiñonez, Erica Deutsch, Bryan Lopez, and Dexter
Rappleye, Attorneys, for United Teachers Los Angeles; Proskauer Rose by Harold M. Brody
and Irina Constantin, Attorneys, for Alliance College-Ready Public Schools, Alliance Susan &
Eric Smidt Technology High School, and Alliance Renee & Meyer Luskin Academy High
School.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
WINSLOW, Member: These consolidated cases come before the Public Employment
Relations Board (PERB or Board) on exceptions by United Teachers Los Angeles (UTLA) and
cross-exceptions by Alliance College-Ready Public Schools (Alliance), Alliance Susan & Eric
Smidt Technology High School (Smidt Tech), and Alliance Renee & Meyer Luskin Academy
High School (Luskin Academy) (collectively, Respondents) to a proposed decision by an
administrative law judge (ALJ).
The operative first amended complaint in Case No LA-CE-6025-E alleged that:
(1) Alliance issued four written communications to teachers and members of the public
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regarding UTLA’s organizing campaign; (2) Alliance blocked an e-mail message sent by
UTLA to employees’ work e-mail addresses on March 25, 2015; (3) Alliance and Smidt Tech,
acting through Smidt Tech Principal Lori Rhodes (Rhodes), terminated an after-school meeting
between a UTLA organizer and teachers; and (4) Alliance and Luskin Academy, acting
through Luskin Academy’s principal, refused to allow UTLA organizers to enter the Luskin
Academy campus for a meeting with teachers. Each of these actions was alleged to interfere
with protected rights in violation of section 3543.5, subdivisions (a) and (b), of the Educational
Employment Relations Act (EERA).1
The operative First Amended Complaint in Case No. LA-CE-6027-E alleged that:
(1) Alliance and Smidt Tech, acting through Rhodes, questioned a Smidt Tech teacher,
Michelle Buckowski (Buckowski), about her meeting with a UTLA organizer; and (2) Alliance
removed a teacher from a professional development meeting and instructed her to stop
distributing union-related flyers. Each of these actions was alleged to interfere with protected
rights in violation of EERA section 3543.5, subdivisions (a) and (b).
The ALJ found that Alliance is a non-profit charter management organization (CMO)
affiliated with a network of 27 charter schools. He also found that Smidt Tech and Luskin
Academy are two of the charter schools within that network, and that each is a public school
employer within the meaning of EERA section 3540.1, subdivision (k). Based on extensive
findings regarding Alliance’s relationship with Smidt Tech and Luskin Academy, the ALJ
determined that the three entities constitute a “single employer” over which PERB has
jurisdiction.
1 EERA is codified at Government Code section 3540 et seq.
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On the merits of the complaints, the ALJ found that Respondents violated EERA by
denying UTLA organizers access to Smidt Tech and Luskin Academy, filtering UTLA’s e-mail
message to employees’ spam folders, and threatening Buckowski. However, the ALJ
dismissed the allegations concerning written communications and removal of the teacher from
the professional development meeting. As a remedy for the violations found, the ALJ ordered
Respondents to cease and desist their conduct and to post a notice to employees, physically and
by electronic means. The ALJ denied UTLA’s request for the remedy of a live reading of the
order by Alliance’s Chief Executive Officer (CEO).
UTLA excepts to the ALJ’s dismissal of the allegations concerning Alliance’s written
communications and the ALJ’s refusal to order a live reading remedy. UTLA also requests, as
an additional remedy, that Respondents be ordered to provide UTLA a list of their employees.
Respondents except to the ALJ’s conclusions that Alliance, Smidt Tech, and Luskin
Academy are a single employer and that the Board has jurisdiction over Alliance. They also
except to the ALJ’s conclusion that they violated EERA by filtering UTLA’s e-mail message
to employees’ spam folders.
The Board itself has reviewed the administrative hearing record in its entirety and
considered the parties’ exceptions, cross-exceptions, and responses thereto. Based on that
review, we affirm in part and reverse in part the proposed decision. Because we conclude that
we lack jurisdiction over Alliance, and find no alternate basis for holding Luskin Academy and
Smidt Tech liable for Alliance’s conduct as the case has been presented to us, we dismiss the
allegations against Alliance. We affirm the ALJ’s conclusion that Respondents Smidt Tech
and Luskin Academy violated EERA when they denied UTLA organizers access to the school
campus and when the principal of Smidt Tech, Rhodes, threatened Buckowski because of her
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protected activity on behalf of UTLA. We also affirm the ALJ’s denial of the live reading
remedy requested by UTLA and deny UTLA’s request for an additional remedy. Finally, we
issue a modified order reflecting the dismissal of the allegations against Alliance.
PROCEDURAL HISTORY
On April 7, 2015, UTLA filed the unfair practice charge in Case Number
LA-CE-6025-E against Alliance, Smidt Tech, and Luskin Academy. On April 24, 2015,
UTLA filed the unfair practice charge in Case No. LA-CE-6027-E against Alliance, Smidt
Tech, and Alliance Gertz-Ressler High School (Gertz-Ressler).
PERB’s Office of the General Counsel issued complaints in both cases, naming
Alliance as the sole respondent. Alliance filed answers to both complaints admitting that it
was a “public school employer” within the meaning of EERA section 3540.1, subdivision (k),
and admitting some of the factual allegations, but denying any violation of EERA and setting
forth various affirmative defenses.
The parties participated in an informal settlement conference on August 21, 2015, but
the matters were not resolved. The cases were then consolidated and set for formal hearing.
Before the hearing, Alliance filed amended answers to the complaints, denying it was a
“public school employer,” and disputing PERB’s jurisdiction over it. Alliance also filed a
motion to dismiss the complaints.
UTLA filed a motion to consolidate these cases with two other PERB cases—Case Nos.
LA-CE-6061-E and LA-CE-6073-E.2
The ALJ denied Alliance’s motion to dismiss and UTLA’s motion to consolidate.
2 Case No. LA-CE-6061-E was filed against Alliance, Gertz-Ressler, and Alliance
Collins Family College-Ready High School; Case No. LA-CE-6073-E was filed against
Alliance and Alliance Patti & Peter Neuwirth Leadership Academy. In each case, the Office of
the General Counsel issued a complaint naming Alliance as the sole respondent.
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On the first day of formal hearing, Alliance filed second amended answers to the
complaints, asserting that the underlying claims in the complaints and PERB’s jurisdiction are
preempted by the National Labor Relations Act (29 U.S.C., § 151 et seq.).3
UTLA then moved to amend the complaints to name additional respondents. UTLA
sought to add as respondents all of the Alliance-affiliated schools, on the grounds that
Alliance’s communications reached all of their employees. In the alternative, UTLA sought to
add only Smidt Tech, Luskin Academy, and Gertz-Ressler. The ALJ granted the motion in
part and issued the First Amended Complaints, which named Smidt Tech as a respondent in
both cases and Luskin Academy as a respondent in Case No. LA-CE-6027-E. The ALJ denied
the motion as to the other schools, finding that the underlying charges, the complaints, and
UTLA’s motion included no specific allegations that any other schools had violated EERA.
Smidt Tech and Luskin Academy filed answers to the First Amended Complaints,
denying any violation of EERA and setting forth various affirmative defenses.
Formal hearing was completed over eight non-consecutive days between November
2015 and January 2016.
On June 3, 2016, the ALJ issued the proposed decision. UTLA filed timely exceptions,
to which Respondents filed a timely response. Respondents filed timely cross-exceptions, to
which UTLA filed a timely response.
3 Alliance did not assert this preemption argument in its exceptions, but limited its
objection to PERB’s jurisdiction to its assertion that a CMO is not a public school employer as
defined by EERA. Exceptions not specifically urged are waived. (PERB Regulation 32300,
subd. (c).) We therefore do not address this issue.
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SUMMARY OF FACTS4
Background
UTLA is an employee organization within the meaning of EERA section 3540.1,
subdivision (d).
Alliance is incorporated as a non-profit public benefit corporation. It describes itself as
a CMO affiliated with a network of 27 charter schools within the geographic boundary of the
Los Angeles Unified School District.
Smidt Tech and Luskin Academy (the Schools) are individual charter schools within
Alliance’s network of schools, and are public school employers within the meaning of EERA
section 3540.1, subdivision (k), having declared themselves to be the public school employer
in their respective charter petitions.
Alliance incorporated Smidt Tech and Luskin Academy as non-profit public benefit
corporations. Alliance is the sole member of both corporations, and appoints all nine voting
members of each corporation’s board of directors. Alliance’s Chief Schools Officer sits on
both boards, along with four members of Alliance’s own board of directors.
Smidt Tech and Luskin Academy each has a management services agreement with
Alliance, according to which Alliance provides a variety of “back office” services, such as
human resources, accounting, information technology, curriculum, and professional
development. Smidt Tech and Luskin Academy also lease their facilities from entities
controlled by Alliance.
4 Although we do not adopt the proposed decision, this summary is largely based on the
ALJ’s findings of fact, with some modifications based on Respondents’ exceptions to those
findings. Those exceptions will not be addressed at length, however, because most of them
relate to the findings underlying the ALJ’s conclusion that Respondents are a single employer,
which the Board does not adopt.
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Smidt Tech and Luskin Academy’s day-to-day operations are run by their respective
principals. The record includes evidence of coordination among the 27 network schools; for
instance, they have adopted a common school-year calendar and common salary schedule, and
they issue an employee handbook that was created by Alliance.
UTLA’s Organizing Campaign and Alliance’s Response
On March 13, 2015,5 a group of teachers and counselors working at Alliance-affiliated
schools e-mailed Judy Burton, the outgoing CEO and president of Alliance; her incoming
replacement, Dan Katzir; and members of the Alliance board of directors. The message
announced the employees’ decision to organize a union with UTLA. In conjunction with this
message, they distributed a Mission Statement signed by teachers and counselors from seven
Alliance-affiliated schools discussing their decision to organize. Among the signatories was
Buckowski, a teacher at Smidt Tech.
On March 16, Alliance issued a document titled “Some FACTS about Unionization &
United Teachers of Los Angeles (UTLA).” Elena Goldbaum, a teacher at Gertz-Ressler,
testified that she received this document in her work mailbox, and that it was referred to in
meetings with the school’s principal and vice principal.
On March 18, Jessica Foster (Foster), a UTLA organizer, met with teachers in
Buckowski’s classroom at Smidt Tech, after they had been dismissed for the day by Rhodes,
their principal. As Foster and Buckowski were preparing to leave after the approximately
hour-long meeting, Rhodes entered, informed Foster that she was not permitted to be on
campus, and directed her to leave. Foster protested, but ultimately complied.
5 All subsequent dates are 2015, unless otherwise noted.
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Before leaving campus that day, Buckowski stopped at the main office and was called
in to talk to Rhodes. Rhodes expressed her frustration that a large number of Smidt Tech
teachers had signed the Mission Statement, and shared her unfavorable view of UTLA and its
position on charter schools. Rhodes noted that Buckowski could remove her name from the
Mission Statement, as another teacher had already done. When Rhodes asked why Buckowski
supported UTLA, Buckowski referred to her low evaluation scores the prior semester. Rhodes
responded that she had worked to keep Buckowski, and had chosen not to include certain
negative comments on Buckowski’s evaluation.
On March 20, Alliance issued a document titled “UTLA Unionization Campaign at
Alliance Schools FAQs for Alliance Educators & School Community.” Foster testified that
unidentified teachers forwarded this document to UTLA after receiving it by e-mail or in their
work mailboxes.
On March 23, Katzir sent an e-mail message to employees of the Alliance schools,
which included references to UTLA’s organizing campaign. Foster testified that unidentified
teachers forwarded this message to UTLA.
Also on March 23, Burton and Katzir sent a letter addressed to Alliance parents and
families regarding UTLA’s organizing campaign. Foster testified that a parent forwarded this
letter to UTLA.
Alliance’s Treatment of UTLA’s March 25 E-mail
Before March 25, UTLA had successfully sent e-mails to Alliance teachers at their
work e-mail addresses, most recently on March 18. On March 25, UTLA sent an e-mail to
Alliance teachers at their work e-mail addresses regarding the ongoing organizational
campaign. Alliance’s answer to the complaint in Case No. LA-CE-6025-E admitted:
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On or about March 25, 2015, it filtered organization-wide email
communications sent by [UTLA] and intended for simultaneous
distribution to all Alliance teachers to a “Spam” folder, where the
emails could be accessed by the intended recipients.
March 26 Incident at Luskin Academy
Glenn Goldstein and Jesse Yeh are UTLA organizers involved with the organizing
campaign at Alliance-affiliated schools. On March 26, shortly before the end of the school
day, they arrived at Luskin Academy to attend a scheduled meeting with teachers at the site.
As they entered the main gate, Chalio Medrano (Medrano), principal of Luskin Academy,
stopped them and asked what they were doing on campus. Goldstein and Yeh informed
Medrano that they were there to attend a meeting with teachers. Medrano stated Luskin
Academy is private property and that the two could not be there. Goldstein and Yeh disagreed,
but left without speaking to any teachers.
DISCUSSION
I. 	Jurisdiction over Alliance
Respondents, including Alliance, except to the ALJ’s conclusion that PERB has
jurisdiction over Alliance. The complaints allege that Alliance is a “public school employer”
within the meaning of section 3540.1, subdivision (k). That section defines as “public school
employer[s]”: (1) governing boards of school districts; (2) school districts; (3) county boards
of education; (4) county superintendents of schools; (5) charter schools that have declared
themselves a public school employer pursuant to subdivision (b) of Section 47611.5 of the
Education Code; (6) certain auxiliary organizations; and (7) certain joint powers agencies.
(§ 3540.1, subd. (k).)
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The ALJ found that Alliance is a CMO and does not fall within EERA’s statutory
definition of a public school employer.6 Nevertheless, the ALJ concluded that PERB may
have jurisdiction over a private entity if it is a “single employer” with an entity over which
PERB does have jurisdiction, such as Luskin Academy and Smidt Tech.
This conclusion was in error. The Board has held that it cannot obtain jurisdiction over
a private entity that does not fall within the definition of “employer” under the applicable
statute by finding that entity to be part of a “single employer” relationship with an entity over
which the Board does have jurisdiction. (The Regents of the University of California (1999)
PERB Order No. Ad-293-H, adopting ALJ’s order at p. 15.) This holding was recently
affirmed in California Virtual Academies (2016) PERB Decision No. 2484 (CAVA), which
issued shortly after the proposed decision in this case. In that case, the Board described as
“good law” the following principle:
PERB cannot assert its jurisdiction over a matter involving the
question whether two entities constitute a single employer where
6 In its response to Respondents’ cross-exceptions, UTLA suggests that the ALJ drew a
distinction between “Alliance,” which UTLA describes as “a network of charter schools within
the geographic boundary of the Los Angeles Unified School District,” and the “Alliance
CMO.” (UTLA’s Response to Statement of Cross-Exceptions, pp 2-3.) UTLA states that its
charges were filed against “‘Alliance College-Ready Public Charter Schools,’ which
reasonably can be read to encompass all the schools in the Alliance network” (id. at p. 46), and
claims that the ALJ “conclu[ded] that the Alliance CMO and its ‘network of 27 charter
schools’ constitute a single employer” (id. at p. 27).
We disagree with UTLA’s characterizations of the proposed decision and the pleadings.
The ALJ did not conclude that the Alliance CMO was a single employer with all 27 of its
network schools. He determined that Alliance, Luskin Academy, and Smidt Tech constituted a
single employer. Nor did UTLA name the network of schools as the respondent in its
underlying unfair practice charges. Both charges specifically alleged that Alliance “was
founded in 2004 as a charter school operator of several charter schools (now 26 schools) in the
Los Angeles area.” Although UTLA did move to include all 27 schools in this complaint, the
ALJ denied that motion. UTLA has not challenged the denial of that motion. Therefore, we
reject UTLA’s belated claim that “Alliance” in the proposed decision or the pleadings refers to
the network of schools, rather than to the CMO.
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one of the entities is a private entity because private entities do
not fall within EERA’s definition of public school employer.
(Id. at p. 66.)7
In support of the contrary conclusion, the ALJ in this case relied on El Camino Hospital
District (2009) PERB Decision No. 2033-M (El Camino). In that case the respondent was a
health care district established according to Health & Safety Code section 32000 et seq., and
indisputably a “public agency” subject to the Meyers-Milias-Brown Act (MMBA).8 The
district operated a hospital, but at some point decided to “privatize” the hospital by transferring
its hospital-related assets to a non-profit public benefit corporation. The corporation was later
returned to the district’s control, with the district as the sole member of the corporation, and
with the five members of the district’s governing board occupying five of the six seats on the
corporation’s governing board. The question was whether, under these circumstances, PERB
had jurisdiction over the corporation.
The Board answered that question in the affirmative, relying on two distinct theories.
First, it held that the corporation fell within the MMBA’s broad definition of “public agency.”
(El Camino, supra, PERB Decision 2033-M, p. 11, citing § 3501, subd. (c).) Second, it held,
in the alternative, that the corporation and the district were a single employer, making the
corporation subject to the MMBA. (Id. at p. 22.) In doing so, the Board did not consider or
overrule The Regents of the University of California, supra, PERB Order No. Ad-293-H.
7 At issue in CAVA, supra, PERB Decision No. 2484, was whether a group of charter
schools constituted a single employer. All of the schools contracted to receive managerial
services from the same private company, K12, Inc. It was argued that if the Board were to find
that the charter schools were a single employer, the Board would be improperly asserting
jurisdiction over K12. The Board concluded that it was not asserting jurisdiction over K12 by
finding the schools were a single employer, because K12 was not claimed to be part of the
single employer entity.
8 The MMBA is codified at Government Code section 3500 et seq.
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We believe El Camino, supra, PERB Decision No. 2033-M erred in concluding that a
single employer finding can give PERB jurisdiction over a private entity that does not meet the
statutory definition of an employer. Such a conclusion would lead to the anomalous result that
employees of a private entity would be subject to the Board’s jurisdiction.9 But the Board has
long recognized that it “has only such jurisdiction and powers as have been conferred on it by
statute,” and “cannot acquire jurisdiction by the parties’ consent, agreement, stipulation or
acquiescence, nor by waiver or estoppel.” (Central Contra Costa Transit Authority (2012)
PERB Decision No. 2263-M, p. 6, citing North Orange County Regional Occupational
Program (1990) PERB Decision No. 857.) We therefore disavow El Camino’s reliance on the
single-employer doctrine as an alternative basis for asserting jurisdiction over the corporation.
We stress that we do not disturb El Camino’s separate analysis of whether the
corporation in that case met the MMBA section 3501, subdivision (c)’s definition of a “public
agency.” (El Camino, supra, PERB Decision No. 2033-M.) Since El Camino, the Board has
continued to construe that provision broadly:
to include those entities that have achieved the status of a “public
agency” by statute, constitutional provision, case law or
administrative precedent, and in addition those entities whose
operations and characteristics . . . indicate attributes commonly
associated with public bodies.
(Workforce Investment Board (2014) PERB Order No. Ad-418-M, p. 22, citing Central Contra
Costa Transit Authority, supra, PERB Decision No. 2263-M, pp. 16-25.)
Here, however, it is undisputed that Alliance does not meet the definition of a “public
school employer” under EERA. We therefore cannot assert jurisdiction over the Alliance CMO,
9 In this case, for instance, UTLA acknowledges that it has no interest in becoming the
bargaining representative of the Alliance employees who provide support to the Alliance-
affiliated schools. Yet a single employer finding would, nevertheless, bring them within
PERB’s jurisdiction.
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even if it is a single employer with any or all of its network schools. The allegations against it
must therefore be dismissed.
II. 	Liability for Alliance’s Conduct
Although some allegations in the First Amended Complaints are attributed to Alliance
and either Smidt Tech or Luskin Academy, several pertain only to Alliance. In its response to
Respondents’ cross-exceptions, UTLA argues that if Alliance is not subject to PERB’s
jurisdiction, the Board can still find that the 27 charter schools in Alliance’s network constitute
a single employer, that Alliance is an agent of the single employer, and that the single
employer is therefore liable for this conduct.
Whatever the merits of these arguments, they cannot be considered here. Neither
UTLA’s expanded single employer theory, nor its agency theory appear in the First Amended
Complaints. We may consider theories of liability other than those alleged in the unfair
practice complaint only if the criteria of the unalleged violation doctrine are met. (City of
Roseville (2016) PERB Decision No. 2505-M, pp. 24-25.) Specifically,
(1) adequate notice and opportunity to defend has been provided
to respondent; (2) the acts are intimately related to the subject
matter of the complaint and are part of the same course of
conduct; (3) the unalleged violation has been fully litigated; and
(4) the parties have had the opportunity to examine and be cross-
examined on the issue.
(Claremont Unified School District (2015) PERB Decision No. 2459.)
These criteria have not been met with respect to the arguments raised in UTLA’s
response to the cross-exceptions. UTLA provided no clear notice that it intended to litigate the
issue of whether all 27 schools are a single employer, or whether Alliance is an agent of any of
those schools (including the other named Respondents, Luskin Academy and Smidt Tech).
UTLA did not raise the single-employer theory in its motion to amend the complaint to add the
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remaining schools in the Alliance network as respondents. In its post-hearing briefs to the
ALJ, UTLA primarily argued that Alliance, Luskin Academy, Smidt Tech, and Gertz-Ressler10
constituted a single employer, and it did not argue any theory of agency.11 The ALJ found that
Alliance, Luskin Academy, and Smidt Tech comprised a single employer, and made no
findings of agency. UTLA’s exceptions did not challenge the ALJ’s findings or lack of
findings in this regard, or his partial denial of UTLA’s motion to amend the complaint. Thus,
because UTLA raised these arguments for the first time in its response to the cross-exceptions,
the unalleged violation doctrine is not satisfied. (Lake Elsinore Unified School District (2012)
PERB Decision No. 2241, p. 10 [respondent did not have full opportunity to litigate theory
raised for the first time in charging party’s post-hearing brief to the ALJ]; Whisman
Elementary School District (1991) PERB Decision No. 868, p. 20, fn. 8 [Board declined to
consider issue raised for the first time in response to exceptions].)12
Our conclusion that the issue of whether the network of 27 Alliance charter schools
comprise a single employer was not properly raised or litigated in this case in no way
10 Since the ALJ had denied the motion to name Gertz-Ressler as a respondent, it is not
clear why UTLA argued that Gertz-Ressler was part of the single employer.
11 On page 84 of its post-hearing brief to the ALJ, UTLA argued that “EERA’s
employer definition does not bar recognition of the Alliance network of Schools as a single
employer if sufficient proof exists for the conclusion.” Such an isolated reference did not put
the ALJ or Respondents on notice of its argument regarding all 27 schools, particularly given
that UTLA’s brief also defined “schools” as collectively referring to Luskin Academy, Smidt
Tech, and Gertz-Ressler. (UTLA Post-Hearing Brief, p. 7.)
12 UTLA’s response to Respondents’ cross-exceptions does not argue that Luskin
Academy and Smidt Tech are a single employer without Alliance or the other 25 Alliance-
affiliated schools. In any event, we would decline to consider this argument. Respondents
have not excepted to the ALJ’s findings regarding the unfair practices committed by Luskin
Academy and Smidt Tech, and there is no question that each is liable as the “public school
employer.” A finding that they together comprise a single employer would not alter the
conclusion that they have not been shown to be liable for Alliance’s conduct.
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forecloses UTLA from demonstrating in a future case that those schools do comprise a single
employer (e.g., CAVA, supra, PERB Decision No. 2484), or that Alliance is an agent of the
schools. Because UTLA has not proven that Luskin Academy and Smidt Tech are liable for
Alliance’s conduct under an agency theory, we therefore dismiss the allegations regarding
Alliance’s written communications to employees and its actions in blocking or filtering an
e-mail message from UTLA.13
III. 	Violations by Luskin Academy and Smidt Tech
The ALJ found that Alliance and Smidt Tech violated UTLA’s rights and employees’
rights under EERA when Smidt Tech Principal Rhodes terminated an after-school meeting
between a UTLA organizer and teachers, and made coercive statements to Buckowski. The
ALJ also found that Alliance and Luskin Academy violated UTLA’s rights and employees’
rights under EERA when Luskin Academy Principal Medrano refused to allow UTLA
organizers to enter the Luskin Academy campus to meet with teachers. Although we have
reversed the ALJ to the extent he found violations by Alliance, Respondents did not except to
the violations by Luskin Academy and Smidt Tech. Therefore, we do not disturb those
conclusions. (PERB Regulation 32300, subd. (c).)
UTLA excepts to the proposed remedy for these violations, however, contending that
the ALJ erred by declining to order a live reading of the order by Alliance’s CEO. UTLA also
urges the Board to order Respondents to provide UTLA a list of their employees.
13 Although we find merit in UTLA’s argument that EERA’s right of access to
“institutional bulletin boards, mailboxes, and other means of communication, subject to
reasonable regulation” (§ 3543.1, subd. (b)) includes access to an employer’s e-mail system,
we must save for another day a definitive determination of that issue when we have jurisdiction
over the employer or its agent responsible for the denial of access.
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Although the Board has not considered a request for these types of remedies before,
they are almost certainly included within the Board’s broad remedial authority. That authority
includes “directing an offending party to cease and desist from the unfair practice and to take
such affirmative action, including but not limited to the reinstatement of employees with or
without back pay, as will effectuate the policies of this chapter.” (§ 3541.5, subd. (c).)
Both of the remedies requested by UTLA are considered by the National Labor
Relations Board (NLRB) to be extraordinary remedies. As the ALJ noted, the NLRB:
has held that the reading of a notice by a respondent is an
“extraordinary” or “special” remedy that will be imposed only
where required by the particular circumstances of a case.
(Ishikawa Gasket America, Inc. (2001) 337 NLRB 175, 176, enfd.
354 F.3d 534 (6th Cir. 2004).) In cases where the NLRB has
granted the remedy of notice-reading by a respondent or its
representative, the conduct has been egregious. (Ibid.) For
example, in one case where the remedy was granted, the employer,
during multiple election campaigns, created the impression of
surveillance, threatened employees with discharge, told employees
the plant would close if a union came in, and had the mayor
suggest to employees that unionization would cause the plant to
close. (Wallace International de Puerto Rico, Inc. (1999) 328
NLRB 29, 29-30.)
(Proposed decision, p. 46.)
So, too, with ordering the respondent to provide a list of its employees. For instance, the
NLRB ordered that remedy in Excel Case Ready (2001) 334 NLRB 4, 5 after finding that
“upon learning of its employees’ union activities, the Respondent systematically embarked on
a campaign to rid its work force of leading union adherents.” (Ibid.) It also ordered the
remedy in Blockbuster Pavilion (2000) 331 NLRB 1274, 1274, in which the employer’s
violations included:
informing employees that they were denied work opportunities
because they engaged in union activities; threatening employees
with discharge if they engage in union activity; threatening to
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burn its facility before allowing the Union to represent
employees; interrogating employees concerning their union
sentiments and the union sentiments of other employees;
threatening not to give work to employees who promote the
Union; denying employees work opportunities because they join
or support the Union; and refusing to consider former employees
for employment in order to undermine the strength and majority
standing of the Union.
Notably, the NLRB imposed the employee-list remedy in that case because it believed that a
bargaining order, i.e., an even more extraordinary remedy, would be unenforceable given the
passage of time between the employer’s actions and the NLRB’s decision. (Ibid.)
UTLA argues that the ALJ was incorrect in holding that a respondent’s conduct must be
“egregious” to be subject to extraordinary remedies. Rather, it claims that the analysis is
whether “traditional remedies will not sufficiently ameliorate the effect of the unfair labor
practices found.” (First Legal Support Services, LLC (2004) 342 NLRB 350, 351, fn. 6.) It is
true that the egregious nature of a respondent’s conduct is not the sole ground for ordering an
extraordinary remedy. For instance, a notice-reading remedy may also be appropriate if there
are low levels of literacy among employees. (Tex-Cal Land Management, Inc. v. Agricultural
Labor Relations Bd. (1979) 24 Cal.3d 335, 355.) It may also be appropriate where there have
been “repeated violations . . . despite intervening declarations of illegality.” (J.P. Stevens & Co.
v. N.L.R.B. (5th Cir. 1969) 417 F.2d 533, 540.)
Nevertheless, UTLA has not shown why the Board’s customary remedies are insufficient
in this case. It argues that Respondents “shut down [UTLA’s] physical and electronic access to
employees immediately after they announced their intent to organize a union with UTLA.”
(UTLA’s Statement of Exceptions, p. 21.) But based on the violations proven by UTLA in this
case, this statement is exaggerated. The violations found by the ALJ are one instance in which
Luskin Academy prohibited UTLA organizers from entering the campus, one instance in which
17

________________________
Smidt Tech asked a UTLA organizer to leave the campus, and one instance in which the Smidt
Tech principal questioned and made coercive statements to Buckowski. The circumstances in
which extraordinary remedies have been ordered are not present here.14 Therefore, we affirm the
ALJ’s denial of a notice reading remedy,15 and deny UTLA’s request that Respondents be
ordered to provide a list of employees.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that: (1) Alliance Susan & Eric Smidt Technology High School (Smidt Tech)
violated Educational Employment Relations Act (EERA), Government Code section 3543.5,
subdivisions (a) and (b), by denying UTLA organizers access to the Smidt Tech campus and
making threatening statements to a Smidt Tech teacher; and (2) Alliance Renee & Meyer
Luskin Academy High School (Luskin Academy) violated EERA section 3543.5, subdivisions
(a) and (b), by denying UTLA organizers access to the Luskin Academy campus. All other
allegations in the complaints are dismissed.
Pursuant to EERA section 3541.5, subdivision (c), it is hereby ORDERED that Smidt
Tech and Luskin Academy, and its governing boards and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with UTLA’s statutory right of access.
2. 	Interfering with employees’ right to be represented by UTLA.
14 We in no way foreclose the possibility of ordering extraordinary remedies if we later
find that the 27 Alliance network schools constitute a single employer and if additional
violations are found to have occurred at other schools within the network. (See, e.g., Beverly
California Corp. v. N.L.R.B. (7th Cir. 2000) 227 F.3d 817, 828.)
15 In addition, because Alliance is not within our jurisdiction and UTLA has not proven
that Alliance is an agent of Luskin Academy or Smidt Tech, the Board’s authority to order
affirmative action by “an offending party” would not extend to ordering an action by
Alliance’s CEO.
18

3. 	Denying UTLA its right to represent employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Within 10 (ten) workdays of the service of a final decision in this matter,
post copies of the applicable Notice attached hereto as an Appendix at all work locations where
notices to employees at Smidt Tech and Luskin Academy are customarily posted. The Notice
must be signed by an authorized agent of the Respondent, indicating that the Respondent will
comply with the terms of this Order. Such posting shall be maintained for a period of 30
(thirty) consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not
reduced in size, altered, defaced, or covered with any other material. The Notice shall also be
posted by electronic message, intranet, internet site, and other electronic means customarily
used by Smidt Tech and Luskin Academy to communicate with employees.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Smidt Tech and Luskin Academy shall provide reports, in
writing, as directed by the General Counsel or his/her designee. All reports regarding
compliance with this Order shall be concurrently served on UTLA.
Chair Gregersen and Member Banks joined in this Decision.
19

APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. LA-CE-6025-E and LA-CE-6027-E, in
which all parties had the right to participate, it has been found that Alliance Susan & Eric
Smidt Technology High School (Smidt Tech) violated the Educational Employment Relations
Act (EERA), Government Code section 3540 et seq. by denying United Teachers Los Angeles
(UTLA) organizers access to the Smidt Tech campus and making threatening statements to a
Smidt Tech teacher.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with UTLA’s statutory right of access.
2. 	Interfering with employees’ right to be represented by UTLA.
3. 	Denying UTLA its right to represent employees.
Dated: _____________________ 	ALLIANCE SUSAN & ERIC SMIDT
TECHNOLOGY HIGH SCHOOL
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. LA-CE-6025-E and LA-CE-6027-E, in
which all parties had the right to participate, it has been found that Alliance Renee & Meyer
Luskin Academy High School (Luskin Academy) violated Educational Employment Relations
Act (EERA), Government Code section 3540 et seq. by denying United Teachers Los Angeles
(UTLA) organizers access to the Luskin Academy campus.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with UTLA’s statutory right of access.
2. 	Interfering with employees’ right to be represented by UTLA.
3. 	Denying UTLA its right to represent employees.
Dated: _____________________ 	ALLIANCE RENEE & MEYER LUSKIN
ACADEMY HIGH SCHOOL
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.