Chula Vista Elementary School District (PERB 1647E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CHULA VISTA ELEMENTARY EDUCATION
ASSOCIATION, CTA/NEA,

Charging Party, Case No. LA-CE-4125-E

Vv. PERB Decision No. 1647

CHULA VISTA ELEMENTARY SCHOOL June 23, 2004

DISTRICT,

Respondent.

Appearances: California Teachers Association by Rosalind D. Wolf, Attorney, for Chula Vista
Elementary Education Association, CTA/NEA; Parham & Rajcic by Mark R. Bresee, Attorney,
for Chula Vista Elementary School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Chula Vista Elementary Education Association, CTA/NEA
(Association) of an administrative law judge’s (ALJ) proposed decision (attached). The unfair
_ practice charge as presented before the Board itself alleged that the Chula Vista Elementary
School District (District) violated the Educational Employment Relations Act (EERA) by
interfering with the protected rights of certificated employees at Mueller Charter School
(MCS) and of the Association, the exclusive representative of those employees. The

Association alleged that this conduct constituted a violation of EERA section 3543.5(a)

and (b).

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

The ALJ found that the principal ofMCS unlawfully interfered with the rights of
teachers and the Association in violation of Section 3543.S(a) and (b ), that the MCS principal
was an agent of the District, making the District responsible for his unlawful conduct, and that
as a remedy, the District should cease and desist from not promptly investigating allegations of
interference at MCS and upon determination of such conduct, take appropriate steps to curtail
the conduct. The ALJ also found that since MCS was not named as a party to the charge, the
Board lacked authority to require MCS to comply with an order of the Board.
After review of the entire record, including the unfair practice charge, the amended
charge, the District's response, the ALJ's proposed decision, the parties' exceptions, and the
parties' responses to exceptions, the Board finds the ALJ's procedural history and findings of
fact to be free from prejudicial error and adopts them as the findings of the Board itself. 	The
Board further affirms in part and reverses in part the ALJ' s proposed conclusions of law as
discussed herein.
BACKGROUND
The original unfair practice charge, filed on September 15, 1999, alleged that the
District entered into an agreement with MCS, a charter school formed by the District in 1994
pursuant to the Charter Schools Act (CSA) of 1992, Education Code sections 47600 et seq.,
based on an amended charter petition. The Association alleged that the charter petition and
agreement unilaterally modified various terms and conditions of employment covered by the
existing collective bargaining agreement (CBA) between the Association and the District, and
that, by its actions, the District bypassed the Association, the exclusive representative, and
negotiated directly with employees. On October 21, 1999, the Board agent placed the charge
in abeyance until March 31, 2000 because of the enactment of AB 63l(Migden) (Stats. 1999,
2

Ch. 828) but reactivated the charge on August 9, 2000 after the Association filed an amended
charge. 2
The Association's amended charge added specific allegations of interference, coercion
and threats of reprisal by MCS Principal Bill Collins (Collins) and others against unit
employees related to an election held to determine the "public school employer," a
determination prompted by the passage of AB 631 referred to hereafter as the "Migden
election." The charter petition required a two-thirds vote of the full time on-site certificated
staff to amend or revoke the charter. 3 The Migden election occurred on February 28, 2000 and
resulted in MCS being identified as the public school employer over the District. Of 41
eligible voters, 28, or exactly two-thirds of the eligible voters, voted for MCS and 13 for the
District. MCS presented the charter petition amendment to the District's board for approval on
March 28, 2000, at which time the board approved the charter petition amendment. The
Association argues that the District's conduct compromised the election and so requests that
the Board overturn the election.
On May 23, 2001, the Board agent dismissed portions of the charge pertaining to the
District's alleged unilateral changes that occurred before the effective date of AB 631,
2In 1999, the Legislature enacted amendments to the CSA through AB 631 (Migden).
(Stats. 1999, Ch. 828.) The primary intent of AB 631 was to apply BERA to charter schools
and to require the charter school charter to declare whether the charter school or the chartering
entity shall be the public school employer for purposes of BERA. (Legis. Counsel's Dig.; Sen.
Floor Analysis Aug. 27, 1999.)
3The charter petition provides for amendment as follows:
This charter can be amended or revoked at any time through a
two-thirds vote of the full time, on-site, certificated staff. The
following voting procedures will be followed for Charter
Amendments. Voting will be done by full-time certificated staff
members. Each full-time certificated staff member will select
proxy. Voting will be done by secret ballot and two days notice
will be given prior to voting.
3

January 1, 2000. The remaining charges thereby allege interference with protected activities
and unlawful encouragement of employees to join "no organization" over the Association in
violation ofEERA section 3543.5(a), (b) and (d).
ALI'S PROPOSED DECISION
The primary issue before the ALJ concerned whether the District interfered with the
rights of unit employees by its conduct before and during the Migden election for
determination of the public school employer under Education Code section 47611.5. The
proposed decision focused on the conduct of MCS Principal Collins and Don Mizock
(Mizock), an MCS computer technician.
The ALJ noted that on May 3, 1994, the District board approved the original MCS
charter. On May 18, 1999, the District board renewed and approved the revised MCS charter.
The charter as revised provided that MCS may be excused from provisions of the
Association/District CBA by 2/3 vote of the affected staff. The charter also may be amended
or revoked by 2/3 vote of the amended staff. The 1999 amendment to the CSA required new
charter schools to designate the "exclusive public school employer" in the charter (Educ. Code
section 4761 l.5(b)). Existing charter schools were required to declare whether the charter
school would be named the public school employer by March 31, 2000, or by default, the
District would be deemed the public school employer. (Ed. Code sec. 47611.5(±).) That
declaration had to be accomplished in material compliance with rules set forth in the charter.
(Id.) In this case, as the District was the public school employer, to amend the MCS charter to
designate MCS as the public school employer, would therefore require an amendment by 2/3
vote of the affected staff.
Initially, the ALJ concluded that PERB had jurisdiction to review all allegations
occurring on or after January 1, 2000, regardless of the identity of the employer, since, as of
4

that date, charter schools became subject to EERA. The key issue under EERA is the
vindication of the employees' rights.
The ALJ found that the Association failed to prove interference resulting from the
conduct ofMizock via the alleged unlawful polling of teacher Jill Cook (Cook).
Uncontroverted testimony from Mizock showed that Mizock merely answered questions posed
by Cook out of her expressed confusion about the election and that he denied asking Cook how
she would vote.
However, the ALJ found that Collins unlawfully polled probationary teacher Armando
Vidales (Vidales). This is because Vidales had been placed in the uncomfortable position of
hiding his true opinions when Collins questioned Vidales about how he and other teachers
planned to vote. The ALJ also found through uncontradicted evidence that Collins threatened
teacher Patti Neill (Neill) with an attack on her reputation, the loss of her job, and with
physical violence. It is reasonable that Neill would feel threatened under the circumstances
and that such conduct would chill her right to vote the way she wanted as well as share her
views about the election with her fellow teachers.
The ALJ concluded that, as a principal, Collins was an actual agent of the District under
National Labor Relations Board precedent. Under the more stringent PERB standard for
agency, the ALJ found that the District ratified Collins' unlawful conduct, and consequently,
became responsible for his actions. By letter dated December 15, 1999, from several MCS
teachers, the District was put on notice of Collins' intimidating conduct similar to the alleged
unlawful conduct and of a generally hostile work environment engendered by Collins.
Assistant Superintendent Richard W erlin (W erlin) met with Collins and advised him that
teachers should not feel pressured to vote a certain way. Werlin also returned to MCS a
second time immediately before the election to assure teachers that they should vote their
5

consciences. Yet, once alerted to Collins' actions, the District did not undertake a
comprehensive investigation of the accusations. Nor did Werlin repudiate any of Collins'
actions when speaking to teachers. As the ALJ stated, Collins' threats "were quite
extraordinary in their gravity" and W erlin' s comments did not go far enough to ameliorate
their effect. Consequently, teachers did not know if they could complain to Werlin about
Collins without repercussions. As a result of the District's interference, the ALJ found that
employees were discouraged from participating in union activities; such conduct also
interfered with the Association's ability to represent its members, a derivative violation of
EERA section 3543.5(b).4
The ALJ found that the CSA did not confer authority on the District to order MCS to
conduct a new election. He stated that if the Association would have named MCS as a party,
the Board could have directed MCS to order a new election. MCS is a separate employer from
the District and under case precedent, only named parties may receive a remedy. (California
Union of Safety Employees (Trevisanut, et al.) (1993) PERB Decision No. 1029-S.) As a
result, the ALJ did not address the District's argument that the Association failed to show
whether Collins' actions had a probable impact on the election result. The ALJ ordered the
District to cease and desist from failing to investigate the accusations of unlawful interference,
and upon finding any unlawful interference with Section 3543 rights to take appropriate action
to curtail the unlawful acts. The District was also ordered to post a notice.
4The alleged violation of EERA section 3543.5(d) was not addressed in the ALJ's
proposed decision. As neither party has raised this issue on appeal, the Board will not consider
the Section 3543.5(d) allegation in this decision.
6

DISCUSSION
Before us is a simple case concerning a District principal who interfered with the
protected right of individuals under his supervision to vote in a fair election, free from
coercion, an election which effectively involved the decertification of the union that had long
represented those employees at a time when the District was the employer of those employees
under EERA. The Board's customary practice in such situations is to set aside the election.
That is what we recommend here. The complexities in this matter arise from the District's
invocation of the CSA as a means to shield the District from its unlawful conduct. We
disagree with the District's approach as discussed herein.
As a preliminary matter, having determined that the ALJ has thoroughly reviewed and
summarized the evidence as presented in testimony and supporting documents, the Board
adopts the ALJ's findings of fact. 	The Board further adopts the ALJ's determination that
Collins interfered with the protected rights of teachers at MCS by his intimidating conduct
toward teachers Vidales and Neill. We will next address the exceptions of the parties.
Agency
The District has excepted to the ALJ' s conclusion that Collins is an agent of the
District. We agree with and adopt the ALJ' s finding and reasoning that Collins is an agent of
the District and that the District is therefore responsible for his conduct as explained below.
"Actual authority" is that which an employer intentionally confers upon the agent, or
intentionally or negligently allows the agent to believe himself or herself to possess. 	It is
undisputed that Collins, as principal of MCS, was an actual agent of the District. (Inglewood
Teachers Assn. v. PERB (1991) 227 Cal.App.3d 767 [278 Cal.Rptr. 228] (Inglewood v.
PERB).) The District cites Inglewood Unified School District (1987) PERB Decision No. 792
(Inglewood USD), as affirmed in Inglewood v. PERB, in support of its contention that Collins
7

was not an agent of the District because he was not acting within the scope of his authority or
with the apparent authority of the District when engaging in the unlawful conduct.
Apparent authority may be found where an employer reasonably allows employees to
perceive that it has authorized the agent to engage in the conduct in question. 	(Compton
Unified School District (2003) PERB Decision No. 1518 (Comnton), citing Inglewood v.
PERB.) In Inglewood USD, the court approved the case by case approach taken by Member
Gonzales in Antelope Valley Community College District (1979) PERB Decision No. 97
(Antelope Valley). In Antelope Valley, Member Gonzales declared:
Governing boards are responsible for the overall direction of
school districts, but day-to-day decisions and actions, which may
directly affect the organizational rights of employees, are often
made by subordinates without specific authorization or
ratification by the governing board. It is reasonable that under
some circumstances employees may perceive their employer as
responsible for such decisions and actions, regardless of whether
the governing board itself is directly involved. Under other
circumstances, such a perception may be unreasonable, and it
may thus be inappropriate to attribute these actions to the
employer. The question is in what situations should the employer
be held responsible for acts by subordinates which are unlawful
under section 3543.5. [Antelope Valley, p. 32, also cited in
Compton, at p. 4.]
In Compton, the Board found that the District, through its principal, ratified threats
made by a bargaining unit member Stacey Nickelberry (Nickelberry) to new teachers that they
must immediately leave a union meeting. Although not a managerial or supervisory employee,
and therefore not an actual agent of the school district, the Board found that Nickelberry
exhibited the apparent authority of the District because the principal knew ofNickelberry's
conduct, he had failed to repudiate it, and he had later called the room and interrupted the
meeting to summon one of the teachers to his office. The principal then questioned that
teacher about the union meeting and removed her from the school leadership team. In
8

Compton, the Board expressed the test for apparent or ostensible authority as "whether the
perception of agency is reasonable under the circumstances." (Compton, at p. 5.)
In this case, as the principal and manager of MCS, Collins was the actual agent of the
District. As the ALJ stated, this is enough under the National Labor Relations Act standards.
We also find that Collins was acting within the scope of his employment since meeting with
teachers during the school day at the school site is within a principal's authority. 	(Compton,
ALJ's proposed dee., at p. 18.)
We find that it was reasonable for MCS employees to believe that Collins was an agent
of the District and therefore, under the Inglewood v. PERB and Compton tests, that Collins
was acting with the ostensible or apparent authority of the District to engage in the unlawful
conduct. For example, the District argued that Werlin could not issue a proper retraction
because he was unaware of the severity of Collins' conduct prior to the election. The evidence
demonstrates otherwise. The District received early notice from MCS teachers in the
December 15, 1999 letter regarding the hostile work environment caused by Collins'
intimidating behavior. The letter specifically advised the District of Collins pressuring
teachers to be "on his side" during campus votes and calling teachers into his office to poll
them whether they would vote his way or not. In addition, Werlin testified that he had learned
before the election that Collins was discussing the Migden election with teachers and making
some of them uncomfortable. In response, W erlin met privately with Collins, and advised him
not to pressure teachers and to allow them to vote their choice. When Collins denied his
coercive conduct, there is no evidence that W erlin attempted to interview teachers at MCS to
obtain additional facts.
Assistant Superintendent Werlin spoke to MCS teachers twice, the last time on the
date of the election, to advise them to vote their consciences. He testified that MCS was the
9

only charter school that he had visited twice on this issue. Werlin testified that he went back
to
MCS because he had received reports about heavy electioneering at the school, which upset
some
of
the teachers. Werlin however did not investigate the teachers' allegations or
specifically repudiate Collins' actions when speaking
to
the MCS teachers.
On the other hand, the District also contends that Werlin' s admonishments to teachers
to vote their consciences constitutes a proper retraction. Unlike other campuses holding a
Migden election, Werlin returned to MCS a second time
to
again advise teachers to vote their
consciences; yet, he never specifically acknowledged or repudiated Collins' misconduct.
Furthermore, once warned about Collins' actions by MCS teachers, there is no evidence that
any District administrator investigated the allegations. Neill also testified that she was afraid to
discuss Collins' behavior with Werlin before the election; she was unsure whether Collins and
Werlin were good friends or whether her complaints would have credibility because
of
Collins'
lengthier seniority with the District. Thus, Werlin's "retraction" did not alleviate Neill's fears
about Collins.
Even after the election, when Neill advised Werlin
of
Collins' threats regarding the
Hells' Angels, Werlin merely advised Neill to contact campus security. Shortly after the
election, six teachers filed a grievance under the MCS charter questioning the validity
of
the
election because
of
Collins' undue influence. This grievance was later dismissed as untimely
under the charter by the new site administrator, Greg Valero.
In summary, there is no evidence that the District either conducted an investigation,
took any further action to become informed about Collins' misconduct or its effects upon the
MCS staff, or otherwise responded to teacher complaints about Collins' conduct. Despite the
magnitude of the complaints against Collins and the closeness of the election results, the

District approved the charter petition amendment to declare MCS to be the public school
employer.
We therefore conclude that under the more rigorous PERB standards, Collins acted
as an agent
of
the District when he committed unfair practices against MCS teachers.
Impact on the Employees' Vote
The District argues in its response to the unfair practice charge that the Association
failed to show a probable impact on the result
of
the election. Since the ALJ concluded in the
proposed decision that the District lacked authority to rescind the election, he did not address
this issue. Since we hold that the Board may set aside the invalid Migden election, we will
now evaluate the impact on the employees' vote
of
Collins' unfair practice.
In determining whether to set aside an election, the Board looks at whether the
employer's unfair practices establish a "probable impact on the employees' vote." (Jefferson
Elementary School District (1981) PERB Decision No. 164.) The question becomes "whether
the employer's conduct would reasonably tend to coerce or interfere with employee choice."
(Manton Joint Union Elementary School District (1992) PERB Decision No. 960.) Actual
impact need not be shown. (San Ramon Valley Unified School District (1979) PERB Decision
No. 111; Clovis Unified School District (1984) PERB Decision No. 389 (Clovis).) In deciding
whether to set aside an election result, the Board will assess the totality
of
circumstances.
(Clovis.)
After reviewing the facts in this case, we conclude that Collins' conduct tended to
coerce or interfere with employee choice thereby creating a probable impact on the election
result. In this case, under the charter rules, only one additional vote in favor
of
the District
would change the election result. The ALJ concluded that the District, through its agent
Collins, interfered with the rights of two employees, Vidales and Neill. The facts also show
11

Collins' electioneering with several teachers, which included tirades against the union coupled
with the District's knowledge
of
and failure to investigate or repudiate Collins' conduct.
Teachers Carolyn Williams (Williams), Gilda McAlister, Vidales, and Neill testified to
Collins' diatribes against the union during discussions in which he promoted MCS as the
public school employer. Interestingly, Williams, a District witness who admired Collins,
testified regarding Collins' animus for the Association. Although insufficient on its own to
show interference, Collins' intenneshing
of
the two issues inextricably binds them in
evaluating the impact
of
his conduct on protected rights. As stated, Neill testified that she was
afraid to discuss Collins' behavior with Werlin before the election because she did not know
if
they were good friends or whether her complaints would be credible based on Collins' greater
seniority with the District. She testified that discussions with family encouraged her to report
Collins' conduct immediately after the election.
Although the District was on notice about Collins' conduct, the District did not take
any public action to disavow that conduct and so reassure the employees
of
a fair election. The
District superintendent and assistant superintendent were advised
of
Collins' intimidating
conduct by the December 15, 1999 letter from several MCS teachers. Assistant Superintendent
Wedin spoke to MCS teachers twice, the last time on the date
of
the election, to advise them to
vote their consciences. This was the only charter school that Werlin visited twice on this issue.
Werlin also had met with Collins and advised him that teachers should not be pressured to vote
a certain way but did not otherwise investigate the teachers' allegations. Werlin testified that
he went back to MCS because he had received reports about heavy electioneering at the school,
which had made some teachers uncomfortable. However, there is no evidence that either
Werlin or any other District administrator ever specifically repudiated Collins' conduct at these
meetings or in any other form of communication with the MCS teachers.
12

We find that the closeness
of
the election, Collins' threats, which "were quite
extraordinary in their gravity," the District's notice by MCS teachers
of
Collins' conduct, and
the unwillingness
of
the District to take decisive action to investigate and repudiate Collins'
conduct demonstrated a probable impact on the election result. We therefore find sufficient
evidence to invalidate the Migden election.
The Remedy
As a result
of
his findings, the ALJ ordered the District to cease and desist from not
investigating interference allegations and to take appropriate action required by results
of
such
investigations. The ALJ declined to order MCS
to
overturn the Migden election because MCS
was not named as a party, although as a party, MCS would have been subject to the Board's
jurisdiction. The ALJ further would not order the District to overturn the election finding that
the District lacked the authority under the CSA.
The Association excepts to the ALJ' s refusal to order the District to overturn the
election and states that naming MCS as a party would require the Association to give effect to
the act it seeks to overturn. The Association argues that it is unnecessary to name MCS as a
party because at the time
of
the unlawful conduct, including the Migden election, MCS was not
the public school employer under EERA section 3540.l(k), and so the Board could not have
exercised jurisdiction over MCS. I agree. I find that whether or not MCS was named as a
party is irrelevant to the decision before us. The unlawful conduct occurred before March 28,
2000 when the District approved the charter petition amendment to declare MCS the public
school employer for purposes of EERA. Notwithstanding that designation, the Board has
authority to set aside an election tainted by an employer's unfair practice.
As of January 1, 2000, under AB 631, the employees at MCS obtained full rights under
EERA, including the right to representation. During the three month period between the onset
13

of Board jurisdiction and the amendment of the MCS charter petition, the District retained
responsibility for the unlawful acts of MCS until MCS declared itself to be the public school
employer under BERA. The unlawful conduct occurred during this period.
By law, the District as the chartering and funding authority bears ultimate responsibility
for MCS pursuant to the CSA and legal interpretations of the CSA. The CSA (Ed. Code secs.
47600, et seq.) was enacted with the following purpose:
It is the intent of the Legislature, in enacting this part, to provide
opportunities for teachers, parents, pupils, and community
members to establish and maintain schools that operate
independently from the existing school district structure, as a
method to accomplish all of the following:
(a) Improve pupil learning.
(b) Increase learning opportunities for all pupils, with special
emphasis on expanded learning experiences for pupils who are
identified as academically low achieving.
(c) Encourage the use of different and innovative teaching
methods.
(d) Create new professional opportunities for teachers, including
the opportunity to be responsible for the learning program at the
schoolsite.
(e) Provide parents and pupils with expanded choices in the types
of educational opportunities that are available within the public
school system.
(f) Hold the schools established under this part accountable for
meeting measurable pupil outcomes, and provide the schools with
a method to change from rule-based to performance-based
accountability systems.
(g) Provide vigorous competition within the public school system
to stimulate continual improvements in all public schools.
(Ed. Code sec. 47601.)
Although independent operation is a key objective for charter schools, charter schools
continue to be part of the public school system under the jurisdiction of the chc1,rtering
authority and under the exclusive control of the officers of that authority. Education Code
section 47615 provides, in pertinent part:
(a) The Legislature finds and declares all of the following:
14

(1) Charter schools are part
of
the Public School System, as
defined in Article IX
of
the California Constitution.
(2) Charter schools are under the jurisdiction
of
the Public
School System and the exclusive control
of
the officers
of
the
public schools, as provided in this part.
(Emphasis added.)
Under Education Code section 47613, chartering agencies, including school districts,
by definition, may charge for supervisorial oversight
of
charter schools. Under Education
Code section 47607, the District must approve material revisions
of
the charter petition, may
inspect or observe MCS at any time, and may revoke the MCS charter for specified reasons,
including a violation
of
law. The chartering agency's ultimate responsibility for charter
schools was confirmed in 97 Ops. AG 711 (1998) and later in Wilson v. State Board
of
Education (1999) 75 Cal.App.4
th
1125, 1142 [89 Cal.Rptr.2d 745].
The MCS charter itself provides for MCS accountability to the District and District
authority over MCS.5 The MCS charter agreement, to which the charter petition is attached
and incorporated by reference, provides for District oversight
of
MCS functions. (Jt. Ex. 5.)
Among other provisions, e.g., the introduction
of
the MCS charter agreement states, in
pertinent part, that:
Mueller Charter School shall be accountable to the
Superintendent
of
the District
...
and the District Board
of
Education
...
for the performance
of
the Charter School and for
the obligations
of
the Charter School under this Agreement. The
District and Mueller Charter School will work together to bring
educational excellence and a laboratory for educational
innovation to the Chula Vista Elementary School District.
(Jt. Ex. 5, at p. 1.)
5Joint Exhibit 5, the MCS Charter Agreement and Charter Petition, comprises the MCS
charter as revised on May 12, 1999, well before the occurrence of the conduct in question.
15

Section 3.2(B) requires MCS to implement educational programs in a manner consistent with
State law. (Jt. Ex. 5, p. 3.) Section 14.2 allows the District to terminate the MCS charter
agreement for specified reasons, including violation
of
"any provision
of
law with respect to
the operation
of
the School from which the School was not specifically exempted" (Section
14.2(C)); and for substantial breach
of
the essential terms and conditions
of
the agreement
(Section 14.2(D)). The charter petition also authorizes the District to revoke the charter for
specified reasons including violation
of
any provision
of
law, mirroring the language in
Education Code section 47607. (Charter Petition, Appendix A, p. 15.)6
As stated above, the election was tainted by Collins' unlawful conduct and the
appropriate remedy under Board precedent is to rescind the election. The District argues that
such a remedy would violate Education Code section 4761 l.5(e). 7 In this case, the Board is
not reviewing or regulating the approval or denial
of
a charter petition; rather, the Board seeks
to correct the effects
of
an election involving protected rights made invalid by Collins'
interference and intimidation
of
MCS employees in violation
of
EERA. 8
6Other pertinent provisions require the District and MCS to jointly select and employ
the principal, current District employees to maintain their employment status while working at
MCS and to retain return rights to other District schools as well as rights and benefits accrued
as employees
of
the District, and for MCS to be subject to the CBA between the District and
the Association except as modified in the charter. (Art. 10.)
7Education Code section 4761 l.5(e) provides:
The approval or a denial of a charter petition by a granting agency
pursuant to subdivision (b)
of
Section 47605 shall not be controlled
by collective bargaining agreements nor subject to review or
regulation by the Public Employment Relations Board.
8As a result, the District's reliance upon San Francisco Unified School District (2001)
PERB Decision No. 1438 (San Francisco) is inapposite. In San Francisco, the charging party
alleged that the creation of the charter school caused a unilateral change in terms and
conditions of employment. Since the alleged conduct occurred before the enactment of AB
631, the Board upheld the ALJ' s determination that the Board lacked jurisdiction over the
16

By analogy, the Board has remedied unfair practices in areas ordinarily governed by the
Education Code in order to receive a just result under EERA. For example, in McFarland
Unified School District (1990) PERB Decision No. 786, the school district had decided not to
reelect a probationary teacher under Education Code 44882(b ).9 That provision does not
require the district to provide any reason for nonreelection of a probationary teacher.
However, the Board found that the teacher had engaged in various protected activities: 	( 1) as
the journalism teacher, after extensive discussions with district managers, allowing a student-
written article to appear in the school newspaper that discussed the district's negotiations with
the union; (2) posting union flyers in her classroom; (3) filing grievances; and (4) protesting an
assignment. In a performance evaluation given shortly before the nonreelection notice, the
principal rated the teacher's classroom performance as above average but criticized non-
instructional issues, such as the posting of union flyers in her classroom. The Board found the
performance evaluation to be a pretext for discrimination against the probationary teacher.
The Board further ordered the teacher to be reinstated to a tenured position despite the ability
of districts to nonreelect probationary teachers without cause. On petition to overturn the
Board's order, the appellate court ruled that the ability of the district to deny tenure for any
lawful reason did not insulate it from the Board's scrutiny when an unfair practice charge
alleges that tenure was denied in retaliation for exercise of a protected right. 	(McFarland
Unified School District v. PERB (1991) 228 Cal.App.3d 166, 169 [11 Cal.Rptr.2d 405]
charter school. In addition to the Board's assumption of jurisdiction over charter schools under
AB 631, this case may also be distinguished in that it does not involve the creation of the
charter, but instead, involves the District's intimidation of employees and interference with
their protected rights in circumstances in which the selection of the public school employer and
the right to union representation were inextricably intertwined.
9This section has been recodified as Education Code section 44929.21(b).
17

(McFarland).) Citing BERA section 3541.5, the court further held that the initial determination
over unfair practices and the appropriate remedy is within the exclusive jurisdiction of the
Board. (Id.) To determine an appropriate remedy, the Board has express authority to order
reinstatement. 	(Id.) The court concluded that the effect of this remedy, the probationary
teacher automatically receiving a tenured position, does not mean that the Board is interfering
with the district's authority to establish and regulate tenure, but rather "gives effect to the
determination that (the teacher) would not have been denied tenure but for her exercise of
protected rights." (Id., emphasis added.)
In this case, we have determined that the District, through its agent Collins, interfered
with teachers' protected rights to vote freely and without coercion for representation by the
Association, an issue expressly coupled with the Migden election. The unlawful conduct
occurred during the three-month period in which the Board assumed jurisdiction over charter
schools and their employees but before MCS was declared as the public school employer under
Education Code section 47611.5. The Board has also found that this interference tainted the
election to the extent that it had a probable impact on the employees' vote. As stated above,
where an election has been deemed to be invalid due to employer interference, the Board will
set aside the election if it is determined that the conduct has a probable impact on the
employees' vote, which we have so found in this case. Under the logic in McFarland, the
Board may rescind an unlawful election as an appropriate remedy for interference.
AB 631 was not intended to preclude such a remedy. 	Such a prohibition would defeat
the purpose of the amendment. In her September 17, 1999 request to Governor Davis for
signature on the bill, Assemblymember Migden elucidated her intent behind AB 631:
The bill before you was developed after extensive negotiations
between charter school advocates and union representatives ....
This bill is not a mandate for charter schools to unionize, but it
18

does ensure the statutory right of charter school employees to
organize if they choose to. Furthermore, the EERA and HEERA
will give charter school employees the right to appeal to the
Public Employment Relations Board (PERB) ifthere are any
disputes or grievances.
Some have argued that charter school employees already have
this right. However, because charter schools are exempted from
most state laws governing public schools, including collective
bargaining, charter school employees do not have statutory
protections under state laws that are given to traditional public
school employees. Even if charters decide to give employees
collective bargaining rights, they are under no obligation to
bargain fairly. 	Charters have free reign to dictate the rules and
procedures for bargaining that may disadvantage employees.
Without this bill, employees do not have access to an independent
arbitrator who can address unfair practices, such as
discrimination against employees for attempting to organize.
Several months ago, two Oakland charter school employees were
fired arbitrarily and without just cause. PERB did not have
authority to intervene to resolve the problems in this case. The
employees have since been rehired due to media attention. If AB
63 l had been law at that time, these employees would have had
an appropriate remedy.
This bill does not interfere with charter schools' academic
independence or their autonomous status. It only seeks to give
employees the right to collective bargaining. People who work
and educate our children with our tax dollars should be allowed
to bargain for better pay and benefits.
(Emphasis added.)
The District also contends that the ALJ did not consider the CSA in rendering his
decision, thereby contravening Education Code section 47611.S(d) which provides:
The Public Employment Relations Board shall take into account
the Charter Schools Act of 1992 (Part 26.8 (commencing with
Section 47600)) when deciding cases brought before it related to
charter schools.
Again, I disagree. I find that the ALJ thoroughly considered the unique legal status of charter
schools but concluded that this status in no way ameliorates unlawful interference with
employees' protected rights under EERA. Although AB 631 requires the Board to consider the
19

CSA in determining disputes pertaining to charter schools, that does not override the author's
firm intent to confer bargaining rights on charter school employees. Such rights are empty
without an adequate remedy to correct serious violations of the EERA. If left without an
appropriate remedy, conduct such as Collins' serves to chill the protected rights of employees
under EERA and thus defeats the author's intent.
Member Neima's concurrence and dissent begins on page 21.
20

NEIMA, Member, concurring and dissenting: I concur with Member Whitehead that
the Chula Vista Elementary School District (District) interfered with the protected rights
of
its
employees under the Educational Employment Relations Act (EERA)1• As a result, it is proper
to order the District to cease and desist from furthering interfering with these protected rights.
However, I dissent from that portion
of
Member Whitehead's decision finding that the
Public Employment Relations Board has jurisdiction to order the District to set aside the
election held
by
the Mueller Charter School to determine the public school employer for
purposes
of
EERA. On this issue I am in agreement with the administrative law
judge's
proposed decision.
1EERA is codified at Government Code section 3540, et seq.
21

ORDER
The Public Employment Relations Board (PERB or Board) hereby AFFIRMS the
administrative law judge's proposed decision in Case No. LA-CE-4125-E. In summary, the
Board finds that the Chula Vista Elementary School District (District) interfered with the
protected rights of Mueller Charter School teachers and Chula Vista Elementary Education
Association, CTA/NEA (Association) through its agent Bill Collins in violation of the
Government Code, Educational Employment Relations Act (EERA) section 3543.S(a) and
(b).
Pursuant to section 3541.S(c) of the EERA, it hereby is ORDERED that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to promptly investigate reports of interference by the Mueller
Charter School principal with the rights of employees to form, join and participate in the
activities of an employee organization of their own choosing for the purpose of representation
in all matters of employer-employee relations.
2. 	Failing to promptly take corrective action when it is determined that the
principal of Mueller Charter School has engaged in conduct that interferes with the protected
rights of employees or the Association.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to certificated employees
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the District, indicating that the District will comply with
22

the terms of this Order. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced or covered with any other material.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the San Francisco Regional Director of the PERB in accordance with the director's
instructions. Continue to report, in writing, to the regional director thereafter as directed. All
reports to the regional director shall be concurrently served on the Association.
Chairman Duncan's dissent begins on page 24.
23

DUNCAN, Chairman, dissenting: 	I respectfully dissent. Mueller Charter School
(MCS) had been a charter school since 1994. The charter was renewed and approved by the
school board in May 1999. The Migden legislation that went into effect in the year 2000
amended the Charter Schools Act (CSA) to require that the charter of each school state within
its text whether or not the charter school "shall be deemed the exclusive public school
employer of the employees at the charter school for the purposes of Government Code Section
3540.1." (Ed. Code sec. 47611.5.)
I agree with the Chula Vista Elementary School District (District) and the
administrative law judge (ALJ) in this case before us, that the Legislature has placed charter
school creation and operation outside of the Public Employment Relations Board's (PERB or
Board) jurisdiction, which by law includes an original petition, an amendment or a renewal.
(San Francisco Unified School District (2001) PERB Decision No. 1438 (San Francisco USD);
Ed. Code sec. 47605(b).)
The District was correct in citing to the language of the ALJ proposed decision in San
Francisco USD. 	The language there was upheld by the Board itself in affirming the dismissal.
The issue there was whether the district violated section 3543.5(a) and (b) of the Educational
Employment Relations Act (EERA) 1 by establishing the Edison Charter School and thereby
unilaterally changing terms and conditions of employment. The same sections ofEERA are at
issue here.
In San Francisco USD, the charging party claimed the district should be required to
negotiate regarding the effects of its decision to approve the charter.
1 EERA is codified at Government Code section 3 540, et seq.
24

The District argued that both the decision to approve the charter school and the effects
of that decision on employees of the charter school are excluded from PERB' s jurisdiction.
The basis for the lack of jurisdiction is the CSA of 1992.
The ALJ in San Francisco USD noted that:
The legislative intent stated within the Charter Schools Act of
1992 is:
'To provide opportunities for teachers, parents, pupils, and
community members to establish and maintain schools
that operate independently from the existing school district
structure .... '
The ALJ in that case further noted that:
Very strong evidence supports the District's argument that the
EERA does not apply and, therefore, PERB is without
jurisdiction in this case. The strongest evidence is the plain
language of the Charter Schools Act itself. Education Code
section 47610 provides: 	'A charter school shall comply with this
part and all of the provisions set forth in its charter, but is
otherwise exempt from the laws governing school districts except
[regarding participation in the State Teachers Retirement
System.]'
(ALJ proposed dee. at pp. 5-6.)
The ALJ then pointed out that, "The EERA is a state law governing school districts.
There is nothing within the Charter Schools Act suggesting that the EERA is not one of the
laws from which charter schools are exempt." (San Francisco USD, ALJ proposed dee. at
p. 6.)
The San Francisco USD proposed decision also states that the omission of the unions
was not inadvertent. The ALJ there sets forth the legislative history and specifically addresses
the issue of the Migden amendment at page 7:
The Charter Schools Act specifies the procedure for
establishment and operation of a charter school. 	In contrast to the
EERA, a union, even one with exclusive representative status, is
not a party to the decision making process resulting in a charter
school, nor, at times pertinent to this unfair practice complaint,
25

were unions given any legal status as representatives of
employees within a charter school. Even the current law as
amended, which allows collective bargaining rights, limits union
and PERB involvement in the process:
'The approval or a denial of a charter petition by a granting
agency pursuant to subdivision (b) of Section 47605 shall not be
controlled by collective bargaining agreements nor subject to
review or regulation by the Public Employment Relations Board.
[California Education Code section 47611.5(e).]'
In the case before us, it is noteworthy that MCS has been a charter school since 1994.
Here, the District argues that:
'It would make no sense to recognize that PERB has no
jurisdiction to review conduct related to the "employer
designation" decision in an original charter petition brought to a
school district governing board in March, 2000, but to suggest
that at the same time that it does have jurisdiction to review
conduct related to the initial "employer designation" decision
in an existing charter petition brought to a school district
governing board the same month.' 	[ALJ proposed dee. at p. 17.]
I believe the Legislature made it clear that PERB is not to be involved in review of
charter issues, particularly after reading Education Code section 4 76115 .1
I disagree with the majority in this case. 	I believe this issue is a charter issue and
therefore is not under the jurisdiction of PERB. It is my position that this should have been
dismissed by the Board agent along with the other charges that were dismissed on May 23,
2001.
While I certainly do not condone the actions of Bill Collins in any way, I believe that
the issues here are not under the auspices of PERB.
1This section is set out at pages 16 and 17 in footnote 9 of the ALJ proposed decision of
January 10, 2002, and states in pertinent part, "( e) The approval or a denial of a charter petition
by a granting agency pursuant to subdivision (b) of Section 47605 shall not be controlled by
collective bargaining agreements nor subject to review or regulation by the Public Employment
Relations Board."
26

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
In the matter
of
Unfair Practice Case No. LA-CE-4125-E, Chula Vista Elementary
Education Association, CTA/NEA
v.
Chula Vista Elementary School District, the Public
Employment Relations Board has found that the Chula Vista Elementary School District
(District) violated Government Code section 3543.S(a) and (b), provisions
of
the Educational
Employment Relations Act (EERA). The District violated EERA by failing to promptly
investigate reports
of
interference by the Mueller Charter School principal in the right
of
employees to freely participate in an election that had the effect
of
determining whether or not
the employees would continue to be represented by the Chula Vista Elementary Education
Association, CTA/NEA (Association). The District also violated EERA by failing to take
corrective action against the principal prior to the election. The District's failure to act
promptly resulted in interference with both employees and Association rights.
Pursuant to section 3541.S(c) ofEERA, it is hereby ORDERED that the District,
its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.
Failing to promptly investigate reports
of
interference by the Mueller Charter School
principal with the rights
of
employees to form, join and participate in the activities
of
an
employee organization
of
their own choosing for the purpose
of
representation in all matters
of
employer-employee relations.
2.	
Failing to promptly take corrective action when it is determined that the principal
of
Mueller Charter School has engaged in conduct that interferes with the protected rights
of
employees or the Association.
Dated: 	CHULA VISTA ELEMENTARY SCHOOL
DISTRICT
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.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CHULA VISTA EDUCATORS, CTA/NEA,
Charging Party,
V.
CHULA VISTA ELEMENTARY SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4125-E
PROPOSED DECISION
(1/10/02)
Appearances: Rosalind D. Wolf, Attorney, for Chula Vista Educators, CTA/NEA; Parham &
Rajcic by Mark R. Bresee, Attorney, for Chula Vista Elementary School District.
Before Ronald E. Blubaugh, Administrative Law Judge.
PROCEDURAL HISTORY
In this case a union challenges an election held at a charter school, arguing that the
principal of the charter school threatened teachers and thereby interfered with a fair vote. The
election resulted in a decision that the charter school, and not the parent school district, would
be the employer for purposes of collective bargaining. The school district replies that the
Public Employment Relations Board (PERB or Board) has no jurisdiction to review charter
school elections. Moreover, the district continues, the alleged interference was insufficient to
affect the election results and such inappropriate conduct as may have occurred was in
violation of express instructions by district administrators.
This case has a long history. It was commenced on September 15, 1999, as a challenge
by the Chula Vista Educators, CTA/NEA (Union) to various unilateral changes in working
conditions that allegedly took place in the Mueller Charter School, an institution of the Chula
Vista Elementary School District (District). The case was placed in abeyance on October 21,

1999, pending the outcome of an election to determine whether the charter school or the
District would be the employer for purposes of collective bargaining. 1 The case in its present
form is the result of a first amended charge, filed by the Union on August 9, 2000, that added a
challenge to the election to the earlier accusations of unilateral change. On October 17, 2000,
the Office of the PERB General Counsel issued a complaint that, in 79 paragraphs, set outs
allegations of unfair practice based on both the original and amended charges.
The District answered the complaint on November 11, 2000, denying most factual
allegations and asserting numerous affirmative defenses including a contention that the PERB
is without jurisdiction in this matter. In response to a motion filed by the District, the Board
agent assigned to handle settlement discussions on May 23, 2001, dismissed all allegations of
unilateral change. The basis for the dismissal was the Board's decision in San Francisco
Unified School District (2001) PERB Decision No. 1438 (San Francisco USD). The dismissal
removed the majority of the allegations in the complaint, leaving only those pertaining to the
election of February 28, 2000. At the commencement of the hearing, the Union withdrew
certain portions of the complaint2 although it was later permitted to reinstate a portion of what
had been withdrawn.3
The part of the complaint that went to hearing alleges interference by District agents in
the February 28, 2000, election that determined whether the charter school would be the
employer for collective bargaining purposes. Specifically, the complaint alleges that charter
1 The election was held pursuant to the requirements of Education Code
section 47611.5.
2 See Reporter's Transcript, Vol. I, at pp. 9-10.
3 See Reporter's Transcript, Vol. II, at pp. 112-113.
2

school principal Bill Collins questioned teachers Armando Vidales, Patti Neill, and Gilda
McAllister about how they were going to vote in the election. The complaint further alleges
that Mr. Collins threatened Ms. Neill that her reputation would be damaged and she might face
physical violence if she voted against the charter school becoming its own employer. Finally,
the complaint alleges that charter school business manager Don Mizock questioned teacher Jill
Cook and told her she should vote to get rid of the Union. By these acts, the complaint alleges,
the District violated section 3543.5(a) and (b)4 of the Educational Employment Relations Act
(BERA).
A hearing was held on September 20 and 21 at the Union office in Chula Vista. With
the filing of briefs, the matter was submitted for decision on December 24, 2001.
FINDINGS OFF ACT
The District is a public school employer as defined in section 3540.1 (k). The Union is
an employee organization as defined in section 3540.l(d) and at all times relevant has been the
exclusive representative, as defined in section 3540.1 ( e), of an appropriate unit of the District's
certificated employees. The District and the Union were parties to a collective bargaining
4 Unless otherwise indicated, all statutory references are to the Government Code. The
BERA is codified at section 3540 et seq. In relevant part, section 3543.5 provides as follows:
It shall be unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because of
their exercise of rights guaranteed by this chapter. For purposes of
this subdivision, "employee" includes an applicant for employment
or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
3

agreement that expired on June 30, 1998, but was extended by the parties in April of 1999 until
June 30, 2001. During the relevant period, the District had 37 schools, five of which were
charter schools.
Pursuant to the Charter Schools Act of 19925 Mueller Elementary School was
converted into Mueller Charter School in 1994. The District governing board approved the
Mueller charter on May 3, 1994. The charter was renewed and approved by the school board
on May 18, 1999. The revised charter provides that the Mueller Charter School could be
excused from selected provisions of the collective bargaining agreement between the District
and the Union. In relevant part, the 1999 charter provides:
Mueller Charter School will be subject to provisions of collective
bargaining except as specified in the Charter Petition and/or
this Agreement. In the event that there is a dispute about the
requirements to implement the school design and the Agreement,
the final decision shall rest with the Charter School.
In addition, at any time, two-thirds of MCS [Mueller Charter
School] affected staff may elect to exempt an established or
prospective practice or policy from any contrary provision or
provisions of the then-current collective bargaining agreement
between the CVE or the CVCEO and the Chula Vista Elementary
School District.
The charter also provides that its provisions could be "amended or revoked at any time through
a two--thirds vote of the full time, on-site certificated staff." The charter requires all votes to be
by secret ballot and authorizes proxy voting.
In 1999, the Charter Schools Act was amended to require that the charter of each
charter school state within its text whether or not the charter school "shall be deemed the
exclusive public school employer of the employees at the charter school for the purposes of
5 See Education Code section 47600 et seq.
4

section 3540.1
of
the Government Code."6 The amendment provided further that "[b ]y
March 31, 2000, all existing charter schools must declare whether or not they shall be deemed
a public school employer."
At Mueller, an election was scheduled for February 28, 2000, for employees to
determine whether the school or the District should be designated as the employer for the
purpose
of
collective bargaining. Because Senator Carole Migden wrote the bill that contained
the requirement that charter schools specify who is to be the employer, the employees and
administrators in the District referred to the February 28 vote as the "Migden Election."
There was much discussion on the Mueller campus about how the teachers should vote
in the Migden Election. Supporters
of
the Union wanted the District to be designated as the
employer for purpose
of
collective bargaining. Opponents
of
the Union wanted the Mueller
School to be designated as the employer for the purpose
of
collective bargaining. Teachers
shared their views with each other.
Bill Collins, the principal at Mueller School at the time
of
the election, was a
controversial figure. 	The faculty was deeply divided and at least in part the division was
rooted in their contrasting opinions about Mr. Collins. On December 15, 1999, a group
of
Mueller teachers sent a lengthy letter to the superintendent and members
of
the Board
of
Education in which they set out numerous complaints about the principal. In one section
of
the letter, the authors described what they considered to be a "hostile workplace." The letter
states that the "site administrator advises junior teachers to avoid veteran teachers, referring to
them as the 'old negatives."' The letter states that the site administrator campaigns for his
6 See Education Code section 47611.5
5

causes with emotion and intimidation. It continues:
A frequent example of this problem is when the site administrator
pressures the staff to vote for something that he wants to pass.
Prior to the meeting, he walks into teachers' classrooms and asks
them to "be on his side" or to "be on his team." He calls
individuals into his office to try to find out who is voting with
him and who is not. [Emphasis in original.]
Veiled threats and peer pressure are tactics the site administrator
also uses. Even when the vote goes his way, he has told staff
members that he will 'find out' who voted against his policies
and 'get them.' He has announced that those who do not vote the
way he wishes will be 'out of here.' A few staff members have
been told that he has friends who are in tough motorcycle gangs
who would 'do anything for him' including 'get those who give
him trouble.' 	and/or that he is 'a master of the Curse of the Black
Hand' which he has used successfully on others in order to cause
them personal pain and tragedy.
The letter to the school board drew a resp.onse from teachers on the other side. 	Their
letter, signed March 20, 2000, expressed their delight "to work in a school that puts children
first and looks to the future." The letter continues:
Mr. Bill Collins has created a wonderful, caring educational
environment here at Mueller Charter School in which teachers are
free and actively encouraged to explore their talents, new ideas
and techniques. New teachers have been welcomed, embraced
and supported in their enthusiasm for education and their
teaching careers.
The letter sent to you and the Board of Education does not
represent the feelings of most of the dedicated and hardworking
teachers at here [sic] Mueller Charter School. ...
Mr. Collins was a strong advocate of having Mueller School designated as the
employer. He was open in this view and it was widely understood that he wanted teachers to
vote for Mueller as the employer. "He wanted to see us go completely autonomous, run our
own ship and provide quality education. . . . He was very clear about how he wanted the
6

school to go," testified Carolyn Williams, a Mueller teacher called as a District witness. "He
would say to me that people that feel that they need a union must be scared, or people that feel
that they need a union don't understand really what the union is not doing for us, things of that
nature .... He did say we don't need a union. And he'd say we didn't need a union because of
the fact that the union would stop us from being a charter school and doing what we needed to
do to be a charter school," testified Gilda McAllister, a Union witness. 	"[H]e made no bones
about not wanting a union .... [A] union isn't necessary. You're paying dues into this union.
You know, what are they doing. Things like that. I mean, just his demeanor. He was not
keeping it a secret that he didn't think we needed a union," testified Patti Neill.
At meetings with teachers and in individual conversations, Mr. Collins frequently
expressed the view that teachers needed to be "team players" and "on the team." Witnesses
were not consistent in their interpretation of whether being a "team player" meant being
opposed to the Union. Ms. Neill testified that she interpreted the phrase as meaning "[g]o
down to Jake's and have a few drinks and that kind of deal" and "eating lunch in his office
·with him." Armando Vidales, a teacher called as a Union witness, testified that he understood
Mr. Collins' comments to mean that a teacher who was a team player would "vote against the
union." Ms. Williams testified that to be a team player meant that the staff "should all work
together to build a cohesive whole for the education of the students." Ms. McAllister testified
that she understood that to be a team player would be "working together and building a good
foundation for the children at Mueller School."
At the core of this case are individual conversations between Don Mizock, the business
manager, and one teacher and Mr. Collins and three teachers.
Mr. Mizock testified that he had one conversation with Ms. Cook about the election.
He said she had called him to her classroom to fix a problem with a computer. He said he did
7

not ask her how she was going to vote but "might have asked her if she understood the issues
that were relevant to the vote." He said she "indicated that she wasn't real clear, she was kind
of confused." He said she asked him why he thought the election was important. He said he
stated something "about the importance of the union representing education in Sacramento."
However, he continued, he told her that in his opinion "as a charter school, it was incumbent
upon us to be able to operate without the encumbrance of the union or the district, ... "
Mr. Mizock testified that he was not sent by Mr. Collins to talk to Ms. Cook. He said the
views he expressed were his own. Ms. Cook, who no longer works for the District, was not
called as a witness.
The Union presented evidence about conversations between Mr. Collins and three
teachers: Mr. Vidales, Ms. McAllister and Ms. Neill.
Mr. Vidales, a probationary teacher at the time of the election, testified that he was
organizing a multi-cultural festival and went to Mr. Collins' office to discuss it. He said
Mr. Collins asked how he was going to vote in the forthcoming election. Mr. Vidales replied
that he had not yet made up his mind. Mr. Vidales testified that he in fact had made up his
mind but thought he "could be intimidated afterwards, and I didn't feel like telling him." He
said Mr. Collins' inquiry made him feel "[u]ncomfortable, very uncomfortable" and he thought
it was "inappropriate."
Mr. Vidales said that Mr. Collins then asked if he knew how two other teachers were
going to vote. Mr. Vidales replied that he did not know. Mr. Vidales said that Mr. Collins
then spent about 40 to 45 minutes "trying to convince me to vote against the union." He said
Mr. Collins "kept saying the same things over and over again, that we had to be team
8

players .... " 	Mr. Vidales testified that Mr. Collins told him that he should not be undecided
but should make up his mind.
Ms. McAllister testified that she had many conversations with Mr. Collins prior to the
election. She said they were all pretty much the same. Mr. Collins said:
Gilda, I need your support. I've been there for you, its time for
you to be there for me. We are going to be having some real
important elections coming up and you should listen very
carefully and be supportive, ...
She quoted him as saying "we don't need a union" and that "the union would stop us from
being a charter school and doing what we needed to do to be a charter school."
The most serious comments were those attributed to Mr. Collins by Ms. Neill, a second
grade teacher at Mueller who first had been employed as an instructional aide. As a result of a
previous confrontation with Mr. Collins, Ms. Neill testified, she was afraid of him. That
incident, which occurred in December of 1996, was the product of a misunderstanding over
something she had said about a school budget committee. Ms. Neill said that when Mr. Collins
heard about the comment he took her into his office and as she was sitting on a chair, "[h]e
lifted his hand up and hit the desk so hard right in front of me, ... [a]nd he screamed I will
have your transfer papers on this desk immediately." Later, she testified, when she had
explained what was said he stated, "[O]h, well, I guess I overreacted."
On the morning of February 28, the day of the election, Mr. Collins approached
Ms. Neill on the playground during recess. 	She said the conversation started on the blacktop
and continued as she walked toward the classroom at the end of recess. 	She said he followed
her as she was taking her students back to the classroom and "wouldn't leave." Throughout
this time, she said, he was "trying to convince me that I needed to vote the union out." She
9

said he told her that if she really wanted the Union he would help her to transfer to another
school but "don't ruin this for the teachers that want to see the charter advance."
After her aide took the students into the classroom, she testified, Mr. Collins stated to
her, "Patti, you owe me one, and you need to vote the way I want you to vote in this election."
She said he then said that "if I didn't vote the way he wanted me to vote in this election that he
was going to tell Mr. [Assistant Superintendent Richard] Werlin that I was having sex with one
of the teachers in the classroom." Ms. Neill testified that she replied, "Bill, you know that's a
lie. That is a complete lie, it's not true." She said he said, "[W]ell, I know it's not true, ... but
people tell lies about me all the time." She said he stated that "this would ruin my reputation, I
would lose my job, and that- he told me that he had these Hell's Angels friends of his that
have been wanting to come to the school and break arms for a long time, but he hasn't let them
come yet." She said he told her that if she really wanted the Union he would help her transfer.
During the conversation, Ms. Neill testified, Mr. Collins was pointing his finger at her.
The sex-in-the-classroom accusation was rooted in an incident that had happened at the
school the prior month. A male teacher was discovered in a classroom, during school hours,
engaging in a sexual act with the mother of a student. Ms. Neill, who was single at the time,
was known to have dated the male teacher. Ms. Neill testified that after the incident between
the teacher and the parent, Mr. Collins "made a big deal" of telling her that "he had to
personally go talk to Mr. Werlin and save my job for me, because he had to assure Mr. Werlin
that I was not having sex in the classroom with this teacher also." She said that Mr. Collins
told her in advance that he was meeting with Mr. Werlin and then after the meeting called her
on her classroom phone "to tell me everything is okay, don't worry, your job is saved."7
7 Mr. Werlin testified that Ms. Neill's name was never brought up during his
investigation of the incident between the teacher and the parent.
10

Ms. Neill testified that she was severely shaken by the February 28 incident with
Mr. Collins. 	She described Mr. Collins as "real tall" and herself as "real short" and stated that
"[y]ou don't understand how afraid I was of him. I was scared of this man." She said she
should have said more to him but was just so afraid she didn't. 	She said he made her feel that
he would know how she voted, although she knew this was not possible. She testified that he
told her that as the principal he had the power to make life miserable for any teacher and
predicted that he could keep it up for a year until the District found out and told him to stop.
She said she felt insecure because she had no husband and was on her own. "I believed he had
the ability to get rid of me like this if he wanted to," she said, snapping her fingers.
Ms. Neill's testimony is uncontradicted in the record. Mr. Collins was not called as a
witness. Ms. Neill's testimony was corroborated by contemporaneous e-mail messages she
sent to other teachers in the days immediately after February 28. On the witness stand, she
came across as forthright and sincere. I credit her testimony about her February 28
conversation with Mr. Collins as accurate and truthful and find that the statements she
attributed to Mr. Collins were in fact made by him.
Not long after Mr. Collins delivered his warning to Ms. Neill, Mr. Werlin appeared on
the campus to deliver a last-minute pre-election speech to the voters at Mueller. All witnesses
gave consistent descriptions of what Mr. W erlin said. He told the teachers that they should
vote 	consciences. He said they should vote as they wished, with their hearts, and that
there would be no reprisals regardless of how the election turned out. He said it was their
choice whether or not they wanted a union and that no one should feel intimidated. He made it
clear that teachers should have no fear when they decided how to cast their ballots. He left
immediately after concluding his remarks, prior to the commencement of voting. In his
11

comments, Mr. W erlin said nothing about Mr. Collins or any statements that may have been
made by him.
Ms. Neill testified that she did not immediately tell Mr. Werlin what Mr. Collins had
said to her because she was afraid to do so. She testified:
... I didn't know if they were good friends or how it worked and
ifl would end up losing my job because I was a little nobody and
had only worked a few years and Bill had worked so many, and I
didn't know how it worked in the deal. ....
Mr. Werlin's pre-election speech was the second he had given to Mueller teachers
during the time before the election. Earlier, he had visited all of the District charter schools
that were conducting a Migden Election. He made the same presentation at each school,
explaining the reason for the election and advising the certificated employees that they should
make an independent decision and vote as they believed.
Mueller was the only school to which Mr. W erlin returned a second time. Mr. W erlin
testified that he went back to Mueller because he had received reports about heavy
electioneering at Mueller "and some people were feeling uncomfortable about that." He said
he had received many telephone calls about the general atmosphere at the school and a division
in the staff. Most of the complaints, he said, concerned pressure from peers and people being
snubbed by peers. He said the expressions of concern he had received were about people on
both sides of the election but he acknowledged that the principal was one of the persons about
whom he had received complaints. "I heard allegations that Mr. Collins was talking to people
about the election and it made some of them feel uncomfortable," he testified. Asked if he
discussed with Mr. Collins any concerns about pre-election events at Mueller, Mr. Werlin
testified:
I don't remember all the specifics of our conversations, but I
remember very clearly sharing with him that it was important that
12

people felt like they could vote the way they wanted to vote, and
it was not our role as administration very clearly to direct the way
somebody should vote or to apply pressure to anyone in any
format to vote a particular way with regard to Migden.
After Mr. Werlin left Mueller, the Migden vote was conducted by two non-voting
employees, Cathy Dimapilis, the office manager, and Mr. Mizock. The ballot had two choices:
(1) modify the charter to designate Mueller Charter School as the employer for the purpose of
collective bargaining or (2) modify the charter to designate the District as the employer for the
purpose of collective bargaining. A two-thirds majority was necessary to adopt either
proposition. The record does not reflect whether the teachers were told what would have
occurred had neither choice received the necessary two-thirds majority. 8
The first order of pre-election business was to resolve the question of whether four
special education teachers would be permitted to vote in the election. They were District
employees assigned to the school. The teachers voted that the special education teachers
would be eligible voters. The total number of voters was 41, including Mr. Collins who as a
certificated employee was an eligible voter under the Mueller charter. Ms. Dimapilis
distributed the ballots to voters who voted in secret. She and Mr. Mizock then counted the
ballots in front of the entire faculty. 	The vote tally was 28 in favor of the designating the
Mueller Charter School as the employer for purposes of collective bargaining and 13 in favor
of designating the District, all eligible voters casting ballots. Because 28 was a two-thirds
majority of the votes cast, the winning proposition was determined to be Mueller Charter
School as the employer. The charter amendment was presented to the school board and ratified
on March 28, 2000.
8 Presumably, under Education Code section 47611.S(b) if Mueller Charter School was
not deemed to be the employer, then as a matter of law the District would have been the
employer for the purpose of collective bargaining.
13

Ms. Neill testified that although she did not initially tell Mr. W erlin about the
principal's threats, she changed her mind after talking with members of her family. 	She said
she decided she would "make a stand." The following Monday she met with Gina Boyd, the
president of the Union, and with Tim O'Neill, a staff representative from the California
Teachers Association. They arranged a meeting with the superintendent, Libia Gil, and
Mr. W erlin during which she described the entire incident with Mr. Collins.
Mr. W erlin told Ms. Neill to report the threat about bringing the Hell's Angels onto the
campus to the Chula Vista Police Department. He then reassigned Mr. Collins to work in the
District office for the balance of the school year, handling arrangements with contractors who
completed a renovation of Mueller over the summer. Mr. Werlin testified that during an
investigation it was his practice to remove from the campus any principal facing a serious
accusation. He assigned Greg Valero as the administrator in charge at Mueller for the
remainder of the school year. Mr. Werlin testified that Mr. Collins denied making the
statements attributed to him by Ms. Neill. As a result of the conflicting stories, Mr. Werlin
said that he was unable to determine what had happened between the two of them.
Mr. Collins retired at the end of the school year. Mr. Werlin testified that he did not
suggest to Mr. Collins that he should retire and that he long had talked about retiring after the
modernization plan was completed. Teacher witnesse.s were in disagreement about what
Mr. Collins had told the faculty regarding his expected retirement. Three Union witness
agreed that Mr. Collins had told the faculty that he planned to stay another year or longer. A
teacher called by the District testified that Mr. Collins had said he would retire in June after
completion of the remodeling project.
Following the vote, Mueller teacher Jerry Lovelady and five other teachers filed a
grievance under the Mueller School Charter asking for a mediation "to resolve the issue of
14

the validity of the vote taken to identify the Mueller Charter School" as the employer.
Mr. Lovelady testified that it was the intention of the grievants to assert that the election was
affected by the undue influence of Mr. Collins. However, the grievance was denied as
untimely by Mr. Valero.
In the 2000-2001 school year, a review of the charter resulted in further amendments to
the Mueller charter. These amendments were developed through a series of committees and all
members of the staff were invited to propose changes in the charter. No proposal was made
during this process that would have resulted in another vote on the question of whether the
Mueller School or the District would be the employer for the purpose of collective bargaining.
LEGAL ISSUES
1. 	Does PERB have jurisdiction to review the question of whether pre-election
conduct at a charter school constituted interference with employee and union rights?
2. 	Did the District, through the actions of its agent Bill Collins, during or about the
period between February 21, 2000, and February 28, 2000, interfere with employee and Union
rights in violation of section 3543.S(a) and section 3543.S(b) by:
A. 	Repeatedly questioning teacher Armando Vidales about how he and
another teacher were going to vote in an election to amend the Mueller School charter and by
stating that he needed Mr. Vidales on his team?
B. 	Stating to teacher Gilda McAllister that "we need team players" and
asking her if she was thinking of transferring to another school, thereby implying that she
should transfer?
C. 	Stating to teacher Patti Neill that if she did not vote his way he would tell
Assistant Superintendent Werlin that Ms. Neill had sex in a classroom with another teacher,
15

that if she wanted to retain the Union she should transfer to another school, and that he would
bring Hell's Angels onto the campus to break some legs?
3. 	Did the District, through the actions of its agent Don Mizock, during or about
the period between February 21, 2000, and February 28, 2000, interfere with employee and
Union rights in violation of section 3543.5(a) and section 3543.5(b) by stating to teacher Jill
Cook that she should vote to get rid of the Union?
CONCLUSIONS OF LAW
Jurisdiction
The District raises as a critical first issue the question of whether the PERB has
jurisdictional authority to resolve the dispute about the Mueller Charter School election. The
purpose of this election, the District argues, was to amend the charter, an act which ultimately
must be approved or disapproved by the District school board. The election was held, the
District observes, to implement a 1999 amendment9 to the Charter School Act. Under
9 The amendment is contained in Education Code section 47611.5 which provides:
(a) Chapter 10.7 (commencing with Section 3540) of Division 4
of Title 1 of the Government Code shall apply to charter schools.
(b) A charter school charter shall contain a declaration regarding
whether or not the charter school shall be deemed the exclusive
public school employer of the employees at the charter school for
the purposes of Section 3540.1 of the Government Code. If the
charter school is not so deemed a public school employer, the
school district where the charter is located shall be deemed the
public school employer for the purposes of Chapter 10. 7
(commencing with Section 3540) of Division 4 of the
Government Code.
( c) If the charter of a charter school does not specify that it shall
comply with those statutes and regulations governing public
school employers that establish and regulate tenure or a merit or
civil service system, the scope of representation for that charter
16

Education Code section 47611.5( e), the District notes, approval or denial of a charter petition
is not subject to review by the PERB. Here, although the school board was not considering
approval of an original petition, the District continues, the effect was the same.
Because for all new charter schools the original petition must contain an employer
designation as part of the charter, Mueller School charter revisions should be treated as the
functional equivalent to a new petition. "It would make no sense to recognize that PERB has
no jurisdiction to review conduct related to the 'employer designation' decision in an original
charter petition brought to a school district governing board in March, 2000, but to suggest that
at the same time that it does have jurisdiction to review conduct related to the initial 'employer
designation' decision in an existing charter petition brought to a school district governing
board in the same month," the District reasons. It is abundantly clear, the District asserts, that
the Legislature intended to preclude PERB's review or regulation of the initial employer
designation of a new or existing charter school.
school shall also include discipline and dismissal of charter
school employees.
(d) The Public Employment Relations Board shall take into
account the Charter Schools Act of 1992 (Part 26.8 (commencing
with Section 47600)) when deciding cases brought before it
related to charter schools.
(e) The approval or a denial of a charter petition by a granting
agency pursuant to subdivision (b) of Section 47605 shall not be
controlled by collective bargaining agreements nor subject to
review or regulation by the Public Employment Relations Board.
(f) By March 31, 2000, all existing charter schools must declare
whether or not they shall be deemed a public school employer in
accordance with subdivision (b ), and such declaration shall not be
materially inconsistent with the charter.
17

The Union argues that effective January 1, 2000, charter schools became subject to the
EERA. As a result, the Union continues, charter school employees effective January 1, 2000,
were given the right to form, join and participate in the activities of employee organizations.
Coincident with these rights, the Union argues, came the statutory protections against
interference with their exercise of protected rights. The Union reasons that because a vote to
designate the Mueller Charter School as the employer would effectively decertify the Union,
participation in the Migden Election at Mueller must have been accompanied with the same
protections as applied to other representation elections. Therefore, the Union concludes, any
employer interference with employee rights to advocate support for the Union must have been
an unfair practice.
This case presents a novel question regarding jurisdiction, a question that is unlikely
to be repeated because the events at issue could only have arisen during the three-month period
between January 1 and March 31, 2000. Prior to January 1, 2000, the EERA was not
applicable to charter schools or events occurring within them. (San Francisco USD.) This
changed on January 1, 2000, when the Migden amendment to the Charter School Act made the
EERA applicable to charter schools. 10 (Education Code section 47611.S(a).) The Migden
amendment, however, delegated to the charter schools themselves the detennination of
whether a charter school or its parent school district would be the employer for the purpose of
collective bargaining. The deadline for making the choice was set at March 31, 2000.
(Education Code section 47611.5(f).) That left a three-month period during which it was not
10 In accord with the discussion, infra, I find it unnecessary to consider the legislative
history submitted by the Union in its reply brief. The language of section Education Code
section 47611.S(a) is adequate in itself to resolve this issue without reference to legislative
history.
18

clear whether a charter school existing prior to January 1, 2000, was the employer for purposes
of collective bargaining or whether the employer was the school's parent district.	.
The events at issue took place during that three-month period of uncertainty. Indeed,
they involve the action taken by the Mueller Charter School to resolve the uncertainty. 	The
District concludes that because the conduct at issue involves a change the to charter, the PERB
has no jurisdiction. This is because, the District asserts, the PERB would have no power to
pass on the designation· of employer status in an original charter and therefore it should have
no status to pass on the designation of employer status in an amendment to a charter. The
District's argument, however, ignores the fact that as of January 1, 2000, charter school
employees had full rights under the EERA. That means, as the Union argues, that as of
January 1, 2000, charter school employees had the right to form, join and participate in the
activities of employee organizations. 11
Under section 3541.3(i). PERB is authorized
... [t]o investigate unfair practice charges or alleged violations of
this chapter, and take any action and make any determinations in
respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter. ...
Because the EERA was applicable to charter schools as of January 1, 2000, it seems evident
that PERB had the authority as of that date to investigate allegations of unfair practices
committed in a charter school. This conclusion is not affected by the fact that prior to the vote
of February 28, 2000, it was not yet clear whether the Mueller Charter School or the District
would be the employer for the purposes of collective bargaining. It is the employee rights that
are to be vindicated regardless of whether the employer was the Mueller Charter School or its
parent, the District. PERB has jurisdiction either way.
11 Section 3543.
19

Accordingly, I conclude that the PERB does have jurisdiction to review the allegations
at issue here. 12
Alleged Interference
Public school employees have the protected right under EERA section 3543:
... to form, join, and participate in the activities of employee
organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations ....
It is an unfair practice under section 3543.S(a) for a public school employer "to interfere with,
restrain, or coerce employees because of their exercise of'' protected rights.
In an unfair practice case involving an allegation of interference, a violation will be
found where the employer's acts interfere or tend to interfere with tne exercise of protected
rights and the employer is unable to justify its actions by proving operational necessity.
(Carlsbad Unified School District (1979) PERB Decision No. 89.)13 In an interference case, it
12 I also reject the District's argument that this dispute should be deferred to the
grievance procedure contained in the Mueller School charter. PERB must defer an unfair
practice charge under section 3541.5(a)(2) when the conduct at issue is "also prohibited by the
provisions of the agreement between the parties." The District acknowledges that there is no
contractual provision which would prohibit the conduct at issue. That concession is dispositive
of the issue. None of the cases the District cites are authority for the proposition that PERB
must defer to a non-contractual procedure.
13 The Carlsbad test for interference provides, in relevant part, as follows:
2. 	Where the charging party establishes that the employer's
conduct tends to or does result in some harm to employee rights
granted under the EERA, a prima facie case shall be deemed to exist;
3. 	Where the harm to the employees' rights is slight, and the
employer offers justification based on operational necessity, the
competing interest of the employer and the rights of the employees
will be balanced and the charge resolved accordingly;
4. 	Where the harm is inherently destructive of employee rights,
the employer's conduct will be excused only on proof that it was
20

is not necessary for the charging party to show that the respondent acted with an unlawful
motivation. (Regents
of
the University
of
California (1983) PERB Decision No. 305-H.)
The Union argues that it was evident to all participants that a vote to declare the
Mueller Charter School to be the employer would have the same effect as a decertification
of
the Union. As a result, the Union argues, when employees participated in the election, they
enjoyed the same protections as in a representation election. This included the right to
participate freely and without coercion from agents
of
the employer. This right was violated,
the Union asserts, when Mueller Principal Collins engaged in unlawful interrogation and
polling. The right to participate was violated further, the Union continues, when Mr. Collins
threatened employees with a loss
of
benefits and warned ofreprisals, including a warning that
he would make a false sexual accusation against Ms. Neill. Moreover, the Union continues, he
also threatened her with physical violence. Finally, the Union asserts, Mr. Collins violated his
obligation
of
strict neutrality when he expressed an opinion in favor
of
designating Mueller
Charter School as the employer, thereby decertifying the Union.
The District rejects these arguments, asserting that the elements
of
an interference case
have not been established. As an initial argument, the District contends that the Union has
failed to establish that Mueller Principal Collins was an agent
of
the District. Mere surmise is
insufficient to establish agency, the District asserts, and "there was no testimonial or
documentary evidence presented, credible or otherwise, that the District felt Collins was acting
occasioned by circumstances beyond the employer's control and that
no alternative course of action was available;
5. 	Irrespective of the foregoing, a charge will be sustained
where it is shown that the employer would not have engaged in the
complained-of conduct but for an unlawful motivation, purpose or
intent.
21

or speaking on its behalf." To the contrary, the District continues, Mr. Collins and other
principals had been specifically told that they should not attempt to influence how employees
would vote in the election. Thus, insofar as Mr. Collins did that, the District reasons he was
acting outside his authority. 	Moreover, the District continues, an employer is free to express
antipathy toward a labor organization. He had the right to say that he was opposed to having
employees represented by the Union and to urge employees to vote to designate the Mueller
Charter School as the employer for purposes of collective bargaining.
To establish a violation, there must be some showing that the statements made
constituted a threat of reprisal or promise of benefits. Citing federal cases interpreting the
National Labor Relations Act, the Board concluded early in its history that employers must be
given latitude to speak to employees. In Rio Hondo Community College District (1980) PERB
Decision No. 128 (Rio Hondo), the Board held that:
... a public school employer is nonetheless entitled to express its
views on employment related matters ... in order to facilitate full
and knowledgeable debate. . . . 	[T]he employer's right to freely
express its views, arguments or opinions is impliedly established
by the fact that the employer is prohibited only from engaging in
negotiations with persons or groups other than the exclusive
representative. While the protection afforded the employer's
speech is not without limits, it must necessarily include both
favorable and critical speech regarding a union's position
provided the communication is not used as a means of violating
the Act. [Citation; emphasis in original.]
Thus, the issue in an interference case is whether the employer's speech was coercive
and thereby interfered with employee exercise of protected rights. In Rio Hondo the Board
explained the rule as follows:
... an employer's speech which contains a threat of reprisal or
force or promise of benefit will be perceived as a means of
violating the Act and will, therefore, lose its protection and
constitute strong evidence of conduct which is prohibited by
section 3543.5 of the EERA. 	[Fn. omitted.]
22

The effect of the employer conduct is measured against an objective standard and not whether
a particular employee actually felt intimidated. (Clovis Unified School District (1984) PERB
Decision No. 389.)
Initially, I reject the Union's argument that Mr. Collins and Mr. Mizock violated the
obligation of strict neutrality by urging teachers to vote to designate the Mueller Charter
School as the employer. It is true that the effect of such statements was to request that the
employees vote against continuing representation by the Union. Employers, however, are free
to express a view that they do not want a union representing their employees. Employers can
freely urge employees to vote against a union in any representation election. (Clovis Unified
School District (1978) PERB Decision No. 61.) The obligation of strict neutrality imposed on
employers requires employers to be neutral only among competing unions. An employer will
violate its requirement of neutrality if it shows a preference, either by words or by deeds, for
one union over another. (Sacramento City Unified School District (1982) PERB Decision
No. 214.) Here, no other union was involved. The comments of Mr. Collins and Mr. Mizock
were directed against the idea of unionism at a charter school. The strict neutrality rule,
therefore, was not applicable.
The more significant question here is whether any of the comments made by
Mr. Mizock or Mr. Collins constituted unlawful polling or threats ofreprisal or promises of
benefits. Mr. Mizock had a conversation with one teacher, Ms. Cook. The only version of that
conversation in the record is that of Mr. Mizock. He describes a simple conversation in which
she expressed uncertainty about how to vote and he offered his opinion. He testified that he
did not ask her how she was going to vote. There is, therefore, no evidence of polling. Nor is
there any statement in his version of the conversation that could be described as a threat or a
23

promise of a benefit. I conclude that the Union has not established by a preponderance of the
evidence that Mr. Mizock interfered with employee choice in his conversation with Ms. Cook.
The uncontradicted evidence establishes that Mr. Collins did ask Mr. Vidales how he
planned to vote in the election and asked him also ifhe knew how two other teachers planned
to vote. The conversation was such that Mr. Vidales felt pressured to respond. It was a
particularly uncomfortable situation for a probationary teacher, and Mr. Vidales stated that he
had not made up his mind, when in fact he had.
Polling of employees about how they plan to vote in a representation election
constitutes interference if the circumstances of the conversations interfere with employee free
choice. (Clovis Unified School District, supra, PERB Decision No. 389,; see also Blue Flash
Express, Inc. (1954) 109 NLRB 591 [34 LRRM 1384].) The specific words used are not
determinative where the inquiry conveys employer disapproval toward the union and creates an
expectation of employee response. (PPG Industries, Inc. (1980) 251 NLRB 1146 [ 105 LRRM
1434].) Here, Mr. Vidales was placed in such a difficult situation that he felt compelled to
hide his true opinions. Such questioning plainly interferes with employee choice. The District
offers no legitimate business purpose to justify the interviews.
The uncontradicted evidence also establishes that Mr. Collins threatened Ms. Neill with
an attack on her reputation, the loss of her job and with physical violence. Applying an
objective test, it is evident that any teacher would feel threatened by a principal who warned he
would smear the teacher's reputation, possibly resulting in the teacher's termination and, as if
that were not enough, that the teacher might become the victim of physical violence. Plainly,
Mr. Collins interfered with Ms. Neill's right to participate in the activities of an employee
organization by his threats of retaliation. Although Ms. Neill may have known intellectually
that Mr. Collins would not know how she would vote in a secret ballot election, it is not
24

unreasonable that she would feel threatened nonetheless. She had a right, moreover, not only
to vote in a way that would retain the Union as her exclusive representative but to urge others
to do the same. She should not be required to keep her views secret for fear of retaliation.
Mr. Collins' threats would effectively preclude any reasonably prudent teacher from voicing
open support for continued Union representation.
The District would find no violation on these acts, however, asserting that if Mr. Collins
engaged in such conduct he was acting outside the scope of his authority and contrary to express
instructions given to him by Mr. Werlin.
PERB's current rules on agency are set out in Compton Community College District
(1987) PERB Decision No. 649 (Compton) and Inglewood Unified School District (1990)
PERB Decision No. 792 (Inglewood). In Compton , the Board affirmed the dismissal of an
unfair practice charge because the factual allegations were insufficient to set out a prima facie
case of agency. The two-member majority concluded that in cases where the principal actor is
not alleged to have been a supervisory or managerial employee:
... some factual demonstration of a relationship beyond
employment alone is necessary to impute or infer an agency
relationship. 	[Citation.] For an agency relationship to exist [the
union] must allege facts which show that [the principal actor] was
acting with some direction, instigation, approval or ratification of
the action by the [d]istrict. [Citation.]
This rule was augmented in Inglewood 14 where the Board held that a school principal
was not the agent of a public school employer when he filed a lawsuit against certain teachers
because of their activities on behalf of a union. Even though as a management employee the
principal was an actual agent of the employer, the Board concluded that he had no express
14 Affirmed in Inglewood Teachers Association v. Public Employment Relations Board
(1991) 227 Cal.App.3d 767 [278 Cal.Rptr. 228].
25

authorization to file the lawsuit and that in filing the lawsuit he had acted outside the scope of
his authority.
The Board then turned to the question of whether in filing the lawsuit the school
principal acted with ostensible authority. The Board held that:
... To prove ostensible or apparent authority, the Association was
bound to establish representation by the principal (the District) of
the agency, justifiable reliance by the party seeking to impose
liability on the principal (the teachers); and a change in position
resulting from that reliance ....
The Board concluded that the charging party did not prove that the public school employer had
made any representation that the lawsuit was filed on the school district's behalf or that the
union had detrimentally relied on any such representation. Accordingly, the Board concluded
that the school principal did not act with ostensible authority when he filed the lawsuit against
the union leaders.
Finally, the Board considered the question of whether the school employer had
"condoned or ratified the filing of the lawsuit" thereby incurring liability even though the
school principal was not acting as an agent at the time he filed the lawsuit. Again, the Board
found the evidence insufficient to establish that the school employer was responsible for the
principal's action. The Board concluded that the union had failed to prove that the school
employer had knowledge that the school principal had filed the lawsuit. Absent knowledge,
the Board concluded, the school employer's silence about the filing of the lawsuit could not
be interpreted as ratification. "Since we do not find that the Association proved that the
District ... had any knowledge of the filing of the lawsuit, we do not find that any duty arose
on the part of the District to disavow the lawsuit," the Board concluded.
As a principal, Mr. Collins was an actual agent of the District. Authority to manage the
Mueller Charter School came with the job title. I believe it clear that under National Labor
26

Relations Board (NLRB) case law the District would be held responsible for the acts of
Mr. Collins. The NLRB does not apply strict principles of agency and will hold an employer
liable regardless of whether a supervisor's conduct is authorized or ratified. 15
But I conclude that even under the stricter PERB interpretation of agency law the
District bears responsibility for the acts of Mr. Collins. The District clearly was placed on
notice that something was going on at Mueller when it received the letter of December 15,
1999, from teachers at Mueller complaining about a hostile work place. The letter specifically
warned about the principal pressing teachers to be on his side during campus votes and calling
teachers into his office to question them about who is voting on his side and who is not. In
addition to this warning, Mr. Werlin acknowledges that prior to the election he had heard that
"Mr. Collins was talking to people about the election and it made some of them feel
uncomfortable."
In response to this information, Mr. W erlin met with Mr. Collins and advised him that
it was the District's view that teachers should feel that they could vote as they wished and not
be pressured. Mr. W erlin also returned to the campus to give a second speech to teachers,
assuring them of their right to vote their conscience only minutes prior to the election. But
there is no evidence that once alerted to possible coercive actions by Mr. Collins that any
District administrator undertook a comprehensive investigation of the accusations. Nor in his
pre-election speech to Mueller teachers did Mr. Werlin specifically repudiate any of the actions
attributed to Mr. Collins.
The threats made by Mr. Collins were quite extraordinary in their gravity. Although at
the time of his pre-election speech Mr. Werlin did not know about the specific threats made to
15 See discussion of NLRB case law in opinion of PERB Chairperson Gluck in
Antelope Valley Community College District (1979) PERB Decision No. 97.
27

Ms. Neill, he had been tipped off to similar allegations by the teacher letter of December 15,
1999. He also had "heard allegations that Mr. Collins was talking to people about the election
and it made some of them feel uncomfortable." While Mr. Werlin's comments to teachers
were certainly appropriate, given the severity of the threats, they did not go far enough. "[A]n
honestly given retraction can erase the effects of a prior coercive statement." (Inglewood
Unified School District (1987) PERB Decision No. 624; see also, Long Beach Community
College District (1998) PERB Decision No. 1278.) Here, however, Mr. Werlin made general
statements that did not acknowledge any specific threats or even that Mr. Collins had made
threats. A simple management reiteration of protected rights was not sufficient to attenuate the
harsh threats made by Mr. Collins. In order to be effective in a representation context, the
employer's retraction must repudiate the offending supervisor as a spokesperson for the
employer. (NLRB v. Crown Laundry & Dry Cleaners, Inc. (1971) 437 F.2d 290 [76 LRRM
2336,2338].)
Failure to repudiate the offending supervisor as a spokesperson creates the situation that
faced Ms. Neill. While welcoming the remarks of Mr. Werlin, she initially was inhibited from
complaining to him because she
... didn't know if they were good friends or how it worked and if
I would end up losing my job because I was a little nobody and
had only worked a few years and Bill had worked so many ....
Absent a clear repudiation of the ability of an offending supervisor to speak for the employer,
an employee cannot rely on management's assertions of employee rights.
I conclude that the District had sufficient knowledge of Mr. Collins' coercive activities
to alert it of the need to conduct a thorough investigation. The District's failure to conduct an
investigation and its failure to specifically disavow Mr. Collins as a spokesperson for the
District, left employees in the situation of believing that Mr. Collins' apparent authority was
28

actual. Accordingly, I find that Mr. Collins was an agent of the District and threats made by
him are chargeable to the District.
This is not an unreasonable result. When an employer places a manager in charge of a
workplace and vests the manager with authority, the employer bears responsibility for the
conduct of the person to whom it has granted authority over others. Were this not so,
employers would have an easy escape from charges of unfair practice. Presumably, no
supervisor is authorized to commit an unfair practice. An employer could escape all
responsibility for acts of managers simply by pleading after the fact that its agent acted outside
the scope of authority when the agent committed an unfair practice. Such an approach would
make statutory protections very hollow shields indeed.
I conclude, therefore, that the District interfered with employee rights when it did not
take adequate actions to nullify the unlawful conduct of Mueller Charter School Principal
Collins. The District's failure to act resulted in uncorrected interference with employee rights
at the Mueller Charter School in violation of section 3543.S(a). Because the District's failure
to remedy the behavior of Mr. Collins would have the natural effect of discouraging employees
from participating in the activities of the Union, the District's failure to act also interfered with
the ability of the Union to represent its members. When employees are intimidated not to
participate in Union activities, the collective strength of the Union is weakened, thereby
interfering with its ability to represent its members. For this reason, I find also that the
District's failure to act also violated section 3543.S(b).
REMEDY
The PERB in section 3541.S(c) is given:
... the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement
29

of employees with or without back pay, as will effectuate the
policies of this chapter.
The Union argues that the only appropriate remedy is an order directing a new election
at Mueller Charter School to decide whether the school or the District should be the employer
for the purpose of collective bargaining. The District argues that the issue is moot because
employees had an opportunity subsequently to amend the charter subsequent to the vote of
February 28, 2000, and made no change in the identity of the employer. The District argues
further that a new vote would be inappropriate because no impact on the election was
demonstrated. And the District argues finally that the District has no power to order the
Mueller Charter School to conduct a new vote because the charter school is an independent
entity not subject to instructions from the District.
I reject the District's argument that this case is moot. Employee rights were interfered
with during a critical election. There has been no subsequent superceding action by the parties
that changes this essential fact. 	(Amador Valley Joint Union High School District (1978)
PERB Decision No. 74.) That there were later amendments to the charter does not make what
happened in February of 2000 moot. In February of 2000 it took a two-thirds majority to
amend the charter so as to designate the Mueller Charter School the employer for purposes
of collective bargaining. In the subsequent charter amendments, it would have taken
a two-third's majority to amend the charter so as to designate the District as the employer for
purposes of collective bargaining. Subsequent charter amendments plainly do not moot what
happened in February of 2000.
The difficult question presented here is whether PERB can direct the District to conduct
a new election at the Mueller Charter School on the question of which entity is the employer
for purposes of collective bargaining. I do not find in the Charter Schools Act authority for the
30

District to order Mueller Charter School to conduct a new election. Obviously, if Mueller
Charter School had been named as a party to this action, the PERB would have the power to
direct the school to conduct a new election. With the Migden amendment, charter schools are
subject to the provisions of the EERA.
However, as the District notes in its brief, the Union did not amend its charge or request
that the complaint be amended to bring the Mueller Charter School into this case as a party.
The Mueller Charter School is a separate employer from the District and a charge against the
District is not a charge against the Mueller Charter School. PERB has held that only named
charging parties are entitled to the benefit of a remedy. 	(California Union of Safety Employees
(1993) PERB Decision No. 1029-S.) It logically follows that only named respondents can be
required to carry out the orders in a PERB remedy. I know of no basis whereby PERB could
order the Mueller Charter School to take an action when the school was never brought into this
case and was not a participant in the hearing. 16
According, I will confine the remedy to actions which the District alone can carry out.
While the Mueller Charter School is an entity separate from the District, the District retains
some authority over the school's administrators. The District demonstrated its authority when
it transferred Mr. Collins to the District office and installed an interim principal once it learned
of the complaints of Ms. Neill. The failure here is that the District did not investigate earlier
reports of problems at the school and did not act sooner. Therefore, I will order the District to
cease and desist from failing to promptly investigate allegations of interference at Mueller
Charter School with employee participation in activities protected by section 3543. I also will
16Because of this conclusion, I find it unnecessary to consider the District's argument
that the Union failed to show that Mr. Collins' actions had a probable impact on the election
result.
31

order the District, upon determination of the existence of any activities at Mueller Charter
School that interfere with section 3543 rights to promptly take steps to curtail such activities.
It is further appropriate that the District be directed to post a notice incorporating the
terms of the order. Posting of such a notice, signed by an authorized agent of the District, will
provide employees with notice that the District has acted in an unlawful manner, is being
required to cease and desist from this activity, and will comply with the order. It effectuates
the purposes of the EERA that employees be informed of the resolution of this controversy and
the District's readiness to comply with the ordered remedy. (Placerville Union School District
(1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in the
case, it is found that the Chula Vista Unified School District (District) violated Government
Code section 3543.5(a) and (b), provisions of the Educational Employment Relations Act
(Act). The District violated the Act by failing to promptly investigate reports of interference
by the Mueller Charter School principal in the right of employees to freely participate in an
election that had the effect of determining whether or not they would continue to be
represented by the Chula Vista Educators, CTA/NEA (Union). The District also violated the
Act by failing to take corrective action against the principal prior to the election. The
District's failure to act promptly resulted in interference with both employee and Union rights.
Pursuant to section 3541.5(c) of the Government Code, it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to promptly investigate reports of interference by the Mueller
Charter School principal with the rights of employees to form, join and participate in the
32

activities of an employee organization of their own choosing for the purpose ofrepresentation
in all matters of employer-employee relations.
2. 	Failing to promptly take corrective action when it is detennined that the
principal of Mueller Charter School has engaged in conduct that interferes with the protected
rights of employees or the Union.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to certificated employees customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that the District will comply with the terms of this
Order. Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
2. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the San Francisco Regional Director of the Public
Employment Relations Board in accord with the director's instructions.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
33

In accordance with PERB regulations, the statement
of
exceptions should identify
by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit.
8,
sec. 32300.)
A document is considered "filed" when actually received before the close
of
business
(5 p.m.) on the last day set for filing or when mailed
by
certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close
of
business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements
of
California Code
of
Regulations, title 8,
section 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, sec. 32 l 35(b ),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
~l~~UR
&LIAdministrative Law Judge
34