Los Angeles Community College District (PERB 1668E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BRYAN ERIC ASTRACHAN,
Charging Party,
V.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-4497-E
PERB Decision No.
	1668
July
	28,
	2004
Appearance: Bryan Eric Astrachan, on his own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on exceptions filed by Bryan Eric Astrachan (Astrachan) to a proposed decision (attached)
of
the administrative law judge (ALJ). The underlying unfair practice charge alleged that the Los
Angeles Community College District violated the Educational Employment Relations Act
(EERA) 1 by retaliating against Astrachan for seeking the assistance
of
his union. After
Astrachan rested his case, the ALJ dismissed the charge and complaint on motion for failure to
state a prima facie case.
The Board has reviewed the entire record in this matter, including the ALJ's proposed
decision and Astrachan' s exceptions. The Board finds the proposed decision to be free
of
prejudicial error and adopts it as the decision
of
the Board itself.
1EERA is codified at Government Code section 3540, et seq.

ORDER
The unfair practice charge and complaint in Case No. LA-CE-4497-E is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
BRYAN ERIC ASTRACHAN,
Charging Party,
V.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4497-E
PROPOSED DECISION
(3/29/04)
Appearances: Bryan Eric Astrachan, on his own behalf; Jones & Matson by Urrea
C.
Jones,
Jr., Attorney, for Los Angeles Community College District.
Before Thomas
J.
Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee alleges that his employer retaliated against him for contacting
his union. The employer denies any retaliation.
Bryan Eric Astrachan (Astrachan) filed an unfair practice charge against the Los
Angeles Community College District (District) on March 18, 2003. The Office
of
the General
Counsel
of
the Public Employment Relations Board (PERB) issued a complaint on May 2,
2003, to which the District filed an answer on May 30, 2003. PERB held informal settlement
conferences on July 1 and 10, 2003, but the case was not settled.
PERB held a formal hearing on November 24, 2003. Astrachan represented himself
and was his only witness. He was allowed to testify in a narrative fashion, and all ten
of
his
exhibits were received in evidence.
At the close of Astrachan's case in chief, the District made a motion to dismiss. 	The
hearing was recessed for preparation of a transcript and briefing of the motion. Astrachan

received a copy of the transcript but chose not to file a brief. With the filing of the District's
brief on February 2, 2004, the matter was submitted for decision.
FINDINGS OFF ACT
The District is a public school employer under the Educational Employment Relations
Act (EERA). 1 Astrachan is an employee under EERA.
The PERB complaint alleges in part:
3. 	In June of 2002, Mr. Astrachan exercised rights
guaranteed by the Educational Employment Relations Act by
contacting his Union, the American Federation of Teachers, for
assistance with his employment relationship with the Los Angeles
Community College District.
4. 	During Winter (January 6th through February 13 th)
and Spring (February 18 th through June 16 th) 2003, Respondent
[the District], acting through its agent, Dean of Academic Affairs
Abraham Farkus [sic], took adverse action against Mr. Astrachan
by denying him teaching assignments.
The PERB complaint further alleges that the District took the actions described in paragraph 4
because of Astrachan's activities described in paragraph 3 and thus violated EERA section
3543.S(a).
With regard to Astrachan's alleged union contact in June 2002, Astrachan's clearest
testimony was as follows:
... I contacted Darrell Eckersley at the American Federation of
Teachers on the telephone and expressed the concern that I had
that I was not being treated appropriately at West Los Angeles
College.
We examined the contract, we discussed the issues that I
was being treated unfairly, and he said he would contact again
[Dean] Mr. Abe Farkas ....
Neither Mr. Eckersley nor Dean Farkas testified, and there was no other evidence that the
District actually learned about Astrachan's union contact.
1 EERA is codified at Government Code section 3540 and following.
2

With regard to Astrachan's alleged denial
of
teaching assignments in winter 2003, he
testified as follows:
Winter, which was January 6 through February 13, I was
not given an assignment. I was promised an assignment
by
[Division Chair] Professor Stapleton. When I was asked
why
I
was not given an assignment, he told me that Abe Farkas, the
acting dean would not approve it.
Division Chair Charles "Buck" Stapleton did not testify.
With regard to Astrachan's alleged denial
of
teaching assignments in spring 2003,
Astrachan testified:
...
Last semester, which was spring
of
2003, I had an assignment
at Pierce College and an assignment at West Los Angeles
College. The one at West was obtained after a second level
grievance hearing.
Astrachan explained:
The hourly seniority at West Los Angeles, I filed a grievance and
was successful in demonstrating that I in fact should have been
placed on the seniority list. I did not get placement
on
the
seniority list until 2003 in approximately May
of
2003. Having
gotten hourly seniority, I was then given a class, a three unit class
to teach, at West Los Angeles College
....
It is not apparent what teaching assignments
(if
any) Astrachan was denied in spring 2003 or
what reasons
(if
any) he was given for any denial.
In his opening statement, Astrachan stated:
On June 3
of
this year, 2003, at approximately 5:00 p.m.
on the campus
of
West Los Angeles College, I was informed by
[Division Chair] Buck Stapleton
...
that
if
I had not filed my
complaints, I would in fact have a position, an assignment.
Although Astrachan was told that his opening statement would not be evidence on which a
finding could be made, he did not repeat this statement when he testified under oath.
Astrachan did testify that at the time of the hearing in November 2003 he had no
present assignment with the District and that he believed this to be "a direct result of filing my
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PERB complaint and seeking
[a]
remedy." The PERB complaint did not, however, cover this
issue, and Astrachan made no motion to amend the complaint.
ISSUE
Was Astrachan denied teaching assignments in winter and spring 2003 because he
contacted his union in June 2002?
CONCLUSIONS OF LAW
To demonstrate a violation
of
BERA section 3543.S(a), the charging party must show
that: 	(1) the employee exercised rights under BERA; (2) the employer had knowledge
of
the
exercise
of
those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employee because
of
the exercise
of
those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following
additional factors must also be present: (1) the employer's disparate treatment
of
the employee
(State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer's
4

cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
In the present case, Astrachan's testimony did establish that he exercised rights under
EERA by contacting his union in June 2002. Astrachan's testimony did not, however,
establish that his employer had knowledge of that contact. According to Astrachan, his union
representative said he would contact Dean Farkas, but neither the representative nor the dean
testified, and there was no other evidence that the District actually learned about Astrachan's
union contact. This failure of evidence is in itself fatal to Astrachan's case.
Astrachan's testimony did appear to establish what may be characterized as an adverse
action against him in winter 2003. He testified that Division Chair Stapleton promised him an
(unspecified) assignment but did not give him one, explaining that Dean Farkas would not
approve it. There is no evidence, however, that the denial involved disparate treatment, a
departure from established procedures, inconsistent or contradictory justifications, or other
evidence of unlawful motive. I therefore could not find a nexus between this adverse action
and Astrachan's union contact in June 2002, even ifl could find that the District had
knowledge of that contact.
With regard to spring 2003, I could not even find an adverse action against Astrachan.
The evidence shows he received two teaching assignments that spring, one of them after a
successful grievance concerning seniority. The evidence does not show that he was denied any
5

teaching assignments that spring, or what they might have been, or why they might have been
denied.
I conclude that Astrachan has not carried his burden
of
establishing a prima facie case
of
retaliation as alleged in the PERB complaint, and that no purpose would be served
by
continuing the hearing. 	(San Francisco Unified School District (1986) PERB Decision
No. 573.)
PROPOSED ORDER
Based on the foregoing findings
of
fact and conclusions
of
law, and the entire record in
this case, it is ordered that the complaint and the underlying unfair practice charge in Case
No. LA-CE-4497-E, Bryan Eric Astrachan
v.
Los Angeles Community College District, is
hereby DISMISSED.
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
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. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
6

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. 32135(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).)
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THOMAS J. AL N
Administrative Law Judge