Woodland Joint Unified School District * * * SUPERSEDED by amendment to EERA section 3543, subdivision (a), Stats. 2007, Ch. 21 (PERB 1722E)

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* * * SUPERSEDED by amendment to EERA section 3543, subdivision (a), Stats. 2007, Ch. 21 * * *

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

WOODLAND EDUCATION ASSOCIATION,
Charging Party, Case No. SA-CE-2089-E

Vv. PERB Decision No. 1722

WOODLAND JOINT UNIFIED SCHOOL December 13, 2004

DISTRICT,

Respondent.

Appearances: California Teachers Association by Ramon E. Romero, Attorney, for Woodland
Education Association; Kronick, Moskovitz, Tiedemann & Girard by Roman J. Mufioz,
Attorney, for Woodland Joint Unified School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Woodland Education Association (Association) to a
proposed decision (attached) of the administrative law judge (ALJ). The underlying unfair
practice charge alleged that the Woodland Joint Unified School District (District) violated the
Educational Employment Relations Act (EERA)' by discriminating against a teacher for
exercising protected activities and by threatening other teachers. The ALJ sustained only the
allegation that the District violated EERA by making threats.

The Board has reviewed the entire record in this matter, including the ALJ’s proposed

decision, the Association’s exceptions and the District’s response. The Board finds the ALJ’s

'EERA is codified at Government Code section 3540, et seq.

findings of fact and conclusions of law to be free of prejudicial error and adopts them as the
decision of the Board itself, subject to the discussion below.
DISCUSSION
Prior to 2000, EERA section 3543 expressly provided that employees "shall have the
right to represent themselves individually in their employment relations with the public school
employer ... " Then, inexplicably, the Legislature deleted the above-referenced language
when it amended EERA section 3543 to include language discussing the imposition of fair
share fees. As the ALJ stated, the deletion of this language is not to be treated lightly. Here,
the original language granting employees the right to represent themselves "individually"
formed the basis of the Board's decision in Pleasant Valley School District (1988) PERB
Decision No. 708 (Pleasant Valley). It was in Pleasant Valley where the Board construed that
language as creating a protected right of self-representation.
It is a fundamental tenet of statutory construction that the "Legislature is deemed to be
aware of existing laws and judicial decisions construing the same statute in effect at the time
legislation is enacted, and to have enacted and amended statutes 'in the light of such decisions
as have a direct bearing upon them.' [Citations omitted.]" (Viking Pools, Inc. v. Maloney
(1989) 48 Cal.3d 602, 609 [257 Cal.Rptr. 320]; see also, Long Beach Community College
District (2003) PERB Decision No. 1564.) As such, the Board must presume that the
Legislature was aware that the language it removed was the very language granting employees
the right to self-representation. Thus, until the Legislature acts again, the Board has no choice
but to conclude that the protected right of self-representation no longer exists under EERA.
Accordingly, the Board adopts the ALJ's proposed decision.2
2In adopting the ALJ' s proposed decision, the Board does not adopt the dicta in
footnote 20.
2

ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
case, it is found that the Woodland Joint Unified School District (District) violated the
Educational Employment Relations Act (EERA) section 3543.S(a) and (b) of the Government
Code provisions. The District violated EERA when its agent, Arturo Barrera, threatened
teachers at the Rhoda Maxwell School by warning of reprisals because they took their
complaints about him to the Woodland Education Association (Association) and ultimately to
District administrators.
Pursuant to EERA section 3541.S(c), it hereby is ORDERED that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Threatening teachers with reprisals because of their exercise of the right
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. 	Interfering with the right of the Association to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	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.
3

2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. District shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on Woodland Education Association.
Chairman Duncan and Member Whitehead joined in this Decision.
4

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SA-CE-2089-E, Woodland Education
Association v. Woodland Joint Unified School District, in which all parties had the right to
participate, it has been found that the Woodland Joint Unified School District (District)
violated the Educational Employment Relations Act (EERA) section 3543.S(a) and (b) of
the Government Code provisions. The District violated EERA when its agent,
Arturo Barrera, threatened teachers at the Rhoda Maxwell School by warning of reprisals
because they took their complaints about him to the Woodland Education Association
(Association) and ultimately to District administrators.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1. 	Threatening teachers with reprisals because of their exercise of the right 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. 	Interfering with the right of the Association to represent its members.
Dated: --------- WOODLAND JOINT UNIFIED 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
WOODLAND EDUCATION ASSOCIATION,
Charging Party,
V.
WOODLAND JOINT UNIFIED SCHOOL
DISTRICT,
Res ondent.
UNFAIR PRACTICE
CASE NO. SA-CE-2089-E
PROPOSED DECISION
(5/15/03)
Appearances: California Teachers Association by Ramon E. Romero, Staff Attorney, for
Woodland Education Association; Kronick, Moskovitz, Tiedemann & Girard by Roman J.
Mufi.oz, Attorney, for Woodland Joint Unified School District.
Before Ronald E. Blubaugh, Administrative Law Judge.
PROCEDURAL HISTORY
A union contends here that a public school employer terminated a long-term substitute
kindergarten teacher because she spoke up for herself after a school principal shouted at her
during a conversation they had in front of a school. The employer responds that the employee
was terminated because she failed to assist a co-teacher with whom she shared a classroom.
This action was commenced on March 15, 2002, when the Woodland Education
Association (Union) filed an unfair practice charge against the Woodland Joint Unified School
District (District). On April 22, 2002, the general counsel of the Public Employment Relations
Board (PERB or Board) followed with a complaint against the District. The complaint alleges
that on or about September 17, 2001, teacher Louanne Lohman exercised rights guaranteed by
the Educational Employment Relations Act (EERA or Act)1 by meeting with her supervisor,
1 The EERA is found at Government Code section 3540 et seq. Unless noted otherwise,
all statutory references will be to the Government Code.

Principal Arturo Barrera, to express concern about the manner in which he had communicated
with her regarding work-related issues. The complaint alleges that Ms. Lohman also engaged
in protected conduct when on or about September 27, 2001, she informed Mr. Barrera that she
would be represented by the Union at a meeting with him the following day. Because of these
protected acts, the complaint alleges, the District through the acts of its agent Mr. Barrera
terminated the employment of Ms. Lohman on September 28, 2001. As separate cause of
action, the complaint alleges that on or about February 6, 2002, the District through its agent
Mr. Barrera called a meeting at which he made threatening statements to teachers at the school.
By these acts, the complaint alleges, the District retaliated against Ms. Lohman and interfered
with both employee and Union rights in violation of section 3543.5(a) and (b ).2
The District answered the complaint on May 17, 2002, admitting certain jurisdictional
allegations but denying most of the facts and asserting various defenses. A hearing into these
allegations was conducted in Sacramento on January 30 and 31 and February 21, 2003.
Following the submission of post-hearing briefs, the matter was submitted for decision on
May 5, 2003.
2 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.
2

FINDINGS OF FACT
The District is a public school employer as defined in section 3540.1 (k) of the EERA.
The Union is an employee organization as defined in section 3540.1 (d). At all times relevant,
the Union has been the exclusive representative, as defined in section 3540.l(e), of an
appropriate unit of the District's certificated employees. At all times relevant, Ms. Lohman
was a public school employee as defined in section 3540.1 (j).
A collective bargaining agreement was in effect between the parties during the relevant
period.3 The agreement prohibits retaliation against employees because of their exercise of
protected rights. The grievance procedure ends in binding arbitration. However, because the
District refused to waive procedural defenses the unfair practice charge is not subject to
deferral.4
In the summer of 2001,5 Ms. Lohman was enrolled in the teaching credential program
at National University in Sacramento. She had an emergency credential but needed to
complete her student teaching to receive an unrestricted credential from the State of California.
At some point during the early weeks of summer, Ms. Lohman learned that a friend soon
would be vacating a summer teaching job at the District's Rhoda Maxwell Elementary School
3 Counsel for the Union expressed some reservations during the hearing about whether
the Union had ratified the agreement. I am convinced, however, by the testimony of Union
President Janet Levers (Reporter's Transcript at Vol. 3, pp. 136-137) and District Associate
Superintendent Dale Weatherford (Reporter's Transcript at Vol. 3, pp. 187-189) that the parties
agreed to an extension of their existing contract. Pursuant to that extension the District granted
unit members a pay increase in the fall of 2001. (See Joint Exhibit 1.)
4 See Reporter's Transcript at Vol. 3, pp. 191-192. Deferral is not appropriate unless
the employer agrees to waive procedural defenses. (State of California (Department of Food
and Agriculture) (2002) PERB Decision No. 1473-S.) The deferral requirement under the
EERA is set out at section 3541.5(a)(2).
5 Unless otherwise indicated, all subsequent dates will be to the year 2001.
3

in order to take another position in the District. Ms. Lohman applied for the summer school
position and got it, taking over the class after the second week of a six-week program.
During the summer session, Ms. Lohman learned that Maxwell School would have
vacant positions in the fall. 	She applied for one of them and in mid-August she was
interviewed by a panel composed of the principal, Mr. Barrera, and two teachers. Of particular
interest to Ms. Lohman was a position as a 6th grade teacher. The other vacancies were that
of 1st grade teacher and long-term substitute kindergarten teacher. During the interview,
Mr. Barrera asked Ms. Lohman if she would be interested in the long-term substitute position
and she replied that she would be. Later, he proposed her for the long-term substitute position,
telling the others on the interview panel that it was harder to get a long-term substitute than a
permanent teacher.
Ms. Lohman then went through a second interview with two kindergarten teachers,
Estella Medina and Gloria Luna, sisters who taught morning and afternoon kindergarten
sessions in a shared classroom. Ms. Medina was going on a pregnancy leave and Ms. Lohman,
if hired, would replace her as the morning kindergarten teacher. Mr. Barrera wanted to be sure
that both sisters would be comfortable with the person hired while Ms. Medina was on leave.
The interview went well and several days later Mr. Barrera offered Ms. Lohman the substitute
position replacing Ms. Medina who was not expected to return until March of 2002.
Ms. Lohman was hired effective August 17, the first day of work for new teachers. The
first day of work for returning teachers was August 23. The first day of classes for students
was August 27.
Although Mr. Barrera contended at the time he terminated Ms. Lohman that she was
only a day-to-day substitute teacher, Ms. Lohman was told when she was hired that she would
4

be a long-term substitute. The evidence persuasively establishes that Ms. Lohman was a
indeed a long-term substitute. Shortly after she was hired, Ms. Lohman was directed to attend
new teacher meetings that took place before the returning teachers were required to start.
Day-to-day substitutes were not required to attend. Ms. Lohman was introduced at faculty and
parent meetings as the replacement for Ms. Medina. Day-to-day substitutes were not
introduced at faculty or parent meetings. A phone number for Ms. Lohman was printed on the
school intercom list and her name was carried in the fall version of the Maxwell School
handbook for 2001-2002, along with that of Ms. Medina, as the teacher of the morning
kindergarten class in Room B-3. The names of day-to-day substitutes were not printed on the
intercom list or in the school handbook. Ms. Lohman was given a key to the classroom and the
code to the building alarm. Day-to-day substitutes were not given a key or the code to the
building alarm. Ms. Lohman's timesheet identified her as a "long-term sub." Most important,
from the first day, Ms. Lohman was paid at the long-term substitute rate of $185 per day and
not at the rate of $95 per day, which is the amount the District pays day-to-day substitute
teachers. From this evidence, I find it clear that Ms. Lohman was hired as a long-term
substitute teacher and remained such throughout her tenure with the District.
After she was hired, Ms. Lohman requested National University to make arrangements
with the District so that her substitute kindergarten job also would qualify as her student
teaching requirement. National was able to make this arrangement and assigned James
Nelson, an employee of National, to be Ms. Lohman's student teacher supervisor. Jennifer
Williams,6 a sixth grade teacher at Maxwell, was assigned to be her master teacher.
6 This teacher is variously referred to in the record as Jennifer Williams, her maiden
name, and Jennifer Richter, her married name. At the time Ms. Lohman was employed by the
5

Mr. Barrera promised Ms. Lohman that she could finish her student teaching at Maxwell
School should Ms. Medina return before the end of the school year.
In most District schools, kindergarten teachers assist each other during the portion of
the day they are not teaching. Thus, the teacher not primarily responsible for the class at a
given time walks around the room and helps students with the project for the day. Beginning
the year prior to the arrival of Ms. Lohman, kindergarten teachers at Maxwell have not
followed this practice. Mr. Barrera installed a program called "Reading Recovery" which was
intended to get all 1st grade students up to grade level by the end of the year. The kindergarten
teachers were trained in this program and during the hours they are not primarily responsible
for teaching, they are assigned to work on an individual basis with 1st graders who were falling
behind.
Ms. Luna continued her work in Reading Recovery in the fall of 2001. Therefore, she
was not in the classroom when Ms. Lohman was teaching her morning kindergarten class.
Ms. Lohman, however, had not completed training in Reading Recovery and that left her
afternoons without any specific assignment. Ms. Lohman testified that she did anything
Ms. Luna asked her to do: "I ran copies for her. I laminated things. I cleaned out cupboards.
I organized stuff. I would run and get her a diet soda." Ms. Lohman said that during the
afternoons she also did preparation for the next day and cleanup. On several occasions, she
asked the other kindergarten teachers, Susan Ash and Chris Fabre, ifthere was anything she
District Ms. Williams went by her maiden name. References in this proposed decision will
therefore use the maiden name.
6

could do for them. However, Ms. Lohman testified, she soon was told by Ms. Luna that she
was not to work for the other kindergarten teachers and "that those people were not to be in her
classroom and I was not to associate with them."
It was Ms. Luna's opinion that Ms. Lohman was not helping during the afternoon
kindergarten sessions. Ms. Luna testified that she told Ms. Lohman at the time she was hired
that they would be collaborating "with our lessons and generally everything we did."
However, she said, Ms. Lohman was not collaborating. Ms. Luna said she "didn't know
exactly" where Ms. Lohman was in the afternoon. Nevertheless, Ms. Luna did not complain to
Ms. Lohman. 	She complained, instead, to Mr. Barrera. Asked why she did not inquire of
Ms. Lohman about her absence in the afternoon, Ms. Luna explained: "I am not the
confrontational type. I've never been that way." She said she "would rather avoid anything
that would - might even get close" to a confrontation.
Mr. Barrera testified that he received on-going complaints from Ms. Luna that
Ms. Lohman was not helping in the afternoon. He said he told Ms. Lohman that she was
supposed to be helping Ms. Luna in the afternoon but he could not identify when he did so. He
said it could have been in either the week of September 3rd or the week of September 10 th .
Ms. Lohman testified that Mr. Barrera's only comment to her about what she should be doing
in the afternoon was a statement that she should be working with Ms. Luna and not the other
kindergarten teachers. Ms. Lohman quoted her conversation with Mr. Barrera as follows:
... He said you do not work for Susan Ash or Chris Fabre. You
work for Gloria Luna. You stay away from both of them. Gloria
will never steer you wrong. You stay clear of the other two.
Mr. Barrera denied that he ever told Ms. Lohman to stay away from Ms. Ash or Ms. Fabre.
7

Under an arrangement worked out the prior spring, all four kindergarten teachers were
scheduled two weeks into the school year to begin a joint program on Monday mornings. This
arrangement called for all 80 morning and afternoon kindergarten students to attend Monday
morning classes together. Students were to rotate through three different work stations with a
teacher assigned at each location. Two of the work stations were in the kindergarten
classrooms but one work station was in a reading lab not normally used for kindergarten
instruction. In the week prior to the commencement of the Monday morning program, the
teachers became concerned that the third work station had no scissors, glue, crayons or other
supplies used by kindergarten students.
On September 14, the Friday before the program was to begin, all of the kindergarten
teachers except Ms. Lohman went as a group to Mr. Barrera to express their concerns about the
absence of supplies. Ms. Lohman was absent that day with strep throat. Ms. Fabre testified
that Mr. Barrera started the conversation "somewhat defensive" and when they asked about the
supplies, "he seemed to get a little more annoyed with us, and kind of told us that we had set
this up so that we needed to deal with it." The meeting ended without teachers securing any
commitment that they would receive the requested supplies.
Ms. Lohman returned to work on Monday, September 17. At about 1 p.m. that day she
approached Mr. Barrera who was standing in front of the school monitoring students as they
were leaving campus for early dismissal. She told him that because of her illness she would
not be preparing new lesson plans but would just roll over the lesson plan from the prior week.
Ms. Lohman testified that Mr. Barrera then asked her how the Monday program was going.
She replied that there still were no scissors, no glue, no crayons and other supplies and that her
students are there without the supplies they need to perform. She continued:
8

... And he absolutely flipped into a new personality. He started
yelling at me. There were students out there. Pointing his finger
in my face, telling me that he was sick and tired of his
Kindergarten staff. He told me - and I'll never forget - I have 20
teachers on this campus and if I hear one more thing from the
Kindergarten staff, I'm going to be sick. ...
Ms. Lohman said she replied that she had just come to tell him about her lesson plans but he
replied that she came to complain. Ms. Lohman said that after the conversation continued on
in that fashion for a brief time and she excused herself and left.
Mr. Barrera testified that Ms. Lohman approached him when he was on bus duty in
front of the school and began complaining about the Monday schedule. He said she tried to
convince him that he should change the schedule and he responded that the other kindergarten
teachers already had approached him about this subject. He described his demeanor as
controlled and said he was not waving his arms. He said he listened to what Ms. Lohman had
to say until she started getting into the Monday schedule and then he cut her off.
Jolie Hagopian, a witness to the conversation, provided an account similar to that given
by Ms. Lohman. Ms. Hagopian testified that while she was standing a few feet away, she
heard Ms. Lohman begin the conversation by speaking about her lesson plans. She testified:
... And Louanne Lohman was approaching him to talk about her
lesson plans. And I overheard him getting very angry with her, as
she was saying I was not here last week .... And he flipped it
around to saying you Kindergarten teachers, I'm sick and tired of
hearing about this; all that you do is complain. I have other
teachers here that I'm concerned about.
Ms. Hagopian described Mr. Barrera as speaking "[S]tem, very stem" and "loudly."
Ms. Lohman testified that she was upset by the conversation and decided that she
would go back to Mr. Barrera and try and talk out the problem. Ms. Lohman testified that she
found Mr. Barrera in the staff lounge putting pictures on the wall. She said she approached
9

him and asked if she could speak with him. She said he stopped what he was doing and said
"you want some more ofme?" She replied, "actually, yes, I do." She said he pointed his
finger at her and said, "then you will sit there and you will wait for me to be done." She
testified that when he had finished, they walked to his office and sat down. 	She testified:
... And I just said, Mr. Barrera, I'm not really sure what just
happened between you and I, but it was not okay with me and
you cannot treat me like that. And he stopped me, like, blunt in
my tracks and he started point[ing] and screaming at me. The
door was closed. And he said you came to me to complain. And
I said wait a minute. . . . ,r ... And I said I came to you to
explain to you why we didn't have lesson plans. If you somehow
perceived that I was coming to complain, I'm sorry, but that's not
why I came ....
She described the ensuing conversation as a "roller coaster ride" with Mr. Barrera alternately
calming down and then yelling at her. She said she excused herself and departed at one point
when he was calm.
On the following day, September 18, Ms. Lohman's student teacher supervisor,
Mr. Nelson, came to Maxwell School to do his first classroom observation of her. Mr. Nelson
testified that when he arrived at the school Mr. Barrera called him into his office to tell him
that things were not as good as he thought they should be with Ms. Lohman. Mr. Nelson said
he understood the complaint "as being a peer relationship [issue] between ... Louanne, and the
other teacher who used that room with her."
Mr. Nelson gave Ms. Lohman a generally positive evaluation on September 18. His
only negative comment, if it could be described as negative, reads:
I would recommend a slight modification in your behavior. Be a
little more gentle and be sure the children understand your
directions.
10

Mr. Nelson testified that he frequently gives the same recommendation to other beginning
teachers. He said he thought the classroom instruction was good.
Mr. Barrera decided to terminate Ms. Lohman on or before September 19. He testified
that on that date he learned at a meeting of District administrators that another District school
was planning to hire one or more teachers and would soon be conducting interviews. He said
he made arrangements on September 19 to participate in the interviews to find a replacement
for Ms. Lohman. Mr. Barrera testified that he made the decision to replace Ms. Lohman
sometime during the week of September 10 but said he could not provide an exact date because
he did not write it down.
Mr. Barrera testified that he decided to terminate Ms. Lohman because she was not a
good personality match for Ms. Luna and because she was not helping Ms. Luna during the
afternoons. He said he contacted District Superintendent Linda Weesner, Associate
Superintendent of Educational Services LuAnn Boone and Associate Superintendent
Weatherford prior to terminating Ms. Lohman. He said that after checking with the District's
legal counsel, Mr. Weatherford told him that because Ms. Lohman was a substitute the District
would be on solid ground to terminate her.
Mr. Weatherford testified that he first learned about the termination of Ms. Lohman
after "it had been done." He said he had no prior opportunity to investigate or determine
whether it would be a fair thing to terminate Ms. Lohman. He said his investigation was
conducted after she already had been released.
Mr. Nelson conducted two more classroom observations of Ms. Lohman, on
September 24 and on September 26. On the observation of September 24, Mr. Nelson wrote:
Some need to modify your leadership by mellowing your
directions and displaying more patience when you correct a child.
11

Ms. Lohman was much distressed by this comment. She said Mr. Nelson had arrived late and
some of the entries on the observation form were drawn from a lesson plan for the day which
she had not followed. She believed the comment about a need for patience was not based on
anything that happened in the classroom.
Ms. Lohman testified that she called Mr. Nelson that evening and he told her that on his
first visit Mr. Barrera had expressed some concerns about her and that he thought she was
"overbearing" and for Mr. Nelson to see what he thought. Ms. Lohman said Mr. Nelson told
her that he entered her classroom expecting her to be overbearing and he made the comment in
the evaluation as a way to help her. He said he volunteered to return and to another
observation.
Mr. Nelson could not recall a telephone conversation with Ms. Lohman but he testified
to a similar conversation. Mr. Nelson testified:
I think I mentioned that he'd talked with me and I- this is the
reason for that last comment about being a little more gentle with
kids in terms of helping them understand what they're to do and
so on.
Ms. Lohman's master teacher, Ms. Williams, testified that Mr. Nelson had reported to
her also that he had been affected by derogatory comments by Mr. Barrera. Ms. Williams
testified that,
... Mr. Nelson came out and saw me on the 25 th and apologized
immediately and said that Mr. Barrera had talked to him before
the observation and had obviously influenced his observation.
In his final observation on September 26 1\ 	Mr. Nelson made no mention of any need
for Ms. Lohman to be more gentle with students. Indeed, he complimented her for her
interaction with students writing,
12

Your management of the children was very positive. You are
very aware of the need to be positive and supportive of the
children.
He described the session as a "[v]ery good lesson" and told her to "[k]eep up your good work."
By September 26t\ however, the firing of Ms. Lohman was nearly in place.
Mr. Barrera and Ms. Luna spent the morning of September 26 at Dingle School interviewing
kindergarten teachers. The following day, Mr. Barrera hired Rachel Burt as a long-term
substitute kindergarten teacher. Mr. Barrera's calendar for September 27 shows a 3 p.m.
appointment with Ms. Burt. Mr. Barrera testified that he offered her the job at that time. Later
that day, Mr. Barrera asked Ms. Lohman to come by his office at 1 p.m. the following day,
Friday, September 28. Ms. Lohman testified that she understood that the meeting was to be
about an incident in which one of her students was hit by a 1st grader. Mr. Barrera testified
that he did not offer any reason for the meeting.
At the end of the teaching day on September 27, Union field representative Marlene
Bell met with teachers in a classroom at Maxwell School. Ms. Bell went to the school at the
request of Union members to listen to their expressions of concern about Mr. Barrera. Various
teachers, including Ms. Lohman, described incidents and problems they had had with the
principal. After hearing about these incidents, Ms. Bell arranged for Union President Levers to
accompany Ms. Lohman to her meeting the next day with Mr. Barrera. Ms. Lohman placed a
note in Mr. Barrera's box advising him that a Union representative would accompany her to
the meeting the next day.
When Ms. Levers walked into Mr. Barrera's office with Ms. Lohman the following
afternoon, Mr. Barrera asked her if the Union was representing substitute teachers. There
followed a brief discussion about whether Ms. Lohman was a day-to-day substitute or a
13

long-term substitute teacher. Mr. Barrera then handed to Ms. Lohman a letter that in its
entirety reads: "This letter is to inform you that as of this date your services will no longer be
needed." No other explanation was given for the termination.
On the day before the firing, Mr. Barrera went to see Ms. Williams and asked how
Ms. Lohman was doing. Ms. Williams replied, "great." Ms. Williams testified that she had no
clue that Ms. Lohman was about to be fired. Mr. Nelson testified that he did not recommend
that Ms. Lohman be fired and could see no reason for it because she was doing fine.
Mr. Barrera did not observe Ms. Lohman in the classroom and there is no evidence he spoke to
anyone but Ms. Luna and Ms. Williams about Ms. Lohman's performance.
On October 3, Mr. Barrera spoke with Kathryn Brown, the lead supervisor of student
teachers at National University, and asked for a meeting with her. He testified that he told her
that he wanted to talk about Mr. Nelson. The meeting took place the following day and
Mr. Barrera testified that he told Ms. Brown that in his view Mr. Nelson had not done a good
job communicating with him. Mr. Barrera testified that he did not talk about the reasons why
he terminated Ms. Lohman.
Ms. Brown testified that when Mr. Barrera called her he asked for a meeting but
declined to tell her the purpose of the meeting. Ms. Brown brought Caroline Miller, another
National employee, into the meeting when Mr. Barrera arrived the next day. Ms. Brown said
Mr. Barrera spent the meeting talking not about Mr. Nelson but about Ms. Lohman and the
reason she was terminated. Ms. Brown took notes during the meeting and a typewritten
version of the notes, prepared by her shortly thereafter, was introduced at the hearing.
According to the notes, which Ms. Brown also affirmed in the hearing, Mr. Barrera stated that
when he met Mr. Nelson he asked him to "watch specifically her relationship [with] the other
14

staff members" and also to see "how she came across to the children." Mr. Barrera also told
Mr. Nelson that he considered Ms. Lohman to be "inappropriately loud in her
communications." According to the notes, Mr. Barrera also told Ms. Brown that he "warned"
Ms. Lohman not to jump into the middle of the "situation" at the school, "but she did just that."
Ms. Miller corroborated Ms. Brown's version of the meeting with Mr. Barrera.
National placed Ms. Lohman in another school district where she completed her student
teaching successfully.
By letter of October 3, Ms. Bell on behalf of the California Teachers Association made
a "formal complaint" to the District against Mr. Barrera. Ms. Bell summarized much of what
she had been told by teachers attending the after-school meeting with the Maxwell School staff
on September 27. Among the many accusations in the lengthy letter, Ms. Bell wrote that from
the information provided to her by employees it appears "that Mr. Barrera leads by
intimidation, humiliation, and reprisal." She asked the District "to conduct a complete and
thorough investigation of the leadership practices of Mr. Barrera, and take appropriate
corrective action to ensure the safety and well being of employees and students."
The District employed an attorney to investigate the complaint. The attorney
interviewed teachers at the school and prepared a report which was not given to Mr. Barrera
and which was not introduced into the record.
On February 6, 2002, Mr. Barrera called a meeting of teachers at Maxwell School.
Cynthia Lanier, a 3rd grade teacher a Maxwell, said Mr. Barrera began by saying he wanted to
"apologize to those of you who are not involved in this" and it was "only a few teachers." She
said he continued by stating:
15

... we're lining up our guns and the Union's lining up their guns;
I'm forced to take this up a notch, you know; things are going to
change around here. . . .
She said it was clear that Mr. Barrera's comments were about Union activity. She said no
teacher spoke during the meeting.
Ms. Williams also recalled Mr. Barrera starting the meeting by expressing an apology
"to those of you staff members that are not involved in this .... " She said he then "went into
continuing the complaints about him" and continued:
... he says something to the fact of you have chosen to take this
forward, we decided to tum it up a notch, you better bring your
big guns to the table because the District is bringing their
something. Very threatening. Then he just said, this meeting is
over, and everybody was silent. ...
Mr. Barrera testified that he started the meeting by apologizing to the staff and
expressing regret for the climate at the school. He said he told the teachers:
... it was unfortunate that we had gotten to a point where we
could not any longer just sit down one-on-one and talk alone.
That we have to have - and I used a phrase and I don't recall
exactly if it was top guns or big guns - along with us in order for
us to communicate. I said I accept responsibility for anything
that I have done, but that there are other people that need to
accept responsibility for the climate that existed.
In a February 15, 2002, letter to Ms. Bell, Associate Superintendent Weatherford
responded to the Union's complaint against Mr. Barrera. In his letter, Mr. Weatherford stated
in relevant part:
While it is difficult to make definitive findings regarding the
specific incidents, we have determined that the facts you
presented show some conflicts between Barrera and the staff. We
want to assure you that the District is currently in discussions
with Barrera to find an appropriate remedy for the issues you
brought to our attention.
16

On February 26, 2002, Ms. Bell wrote again to the District, this time complaining about
Mr. Barrera's conduct at the staff meeting of February 6. She observed that teachers in the
room "felt threatened by Barrera's behavior and statements" and several teachers immediately
contacted the Union. She asked the District once more to investigate Mr. Barrera.
Mr. Weatherford testified that he did investigate what occurred at the February 6 meeting and
,concluded that Mr. Barrera did make the statements attributed to him in the letter written by
Ms. Bell.
Mr. Barrera went on administrative leave in March of 2002 and resigned from the
District at the conclusion of the school year.
Credibility Resolution
During the course of his testimony, Mr. Barrera was asked ifhe had ever yelled at a
teacher while he was principal at Maxwell. He said he had not. When asked ifhe had ever
lost his temper with a teacher at Maxwell, he replied, "Not to my recollection."
In rebuttal to this response, Ms. Hagopian testified that following the Christmas break
in Mr. Barrera's second year at Maxwell he had yelled at her in front of students. She said she
had asked him for help in rearranging her classroom which had been disturbed and turned into
"a total disaster" by a construction crew working in there over the holiday break. When
Mr. Barrera refused to get help, Ms. Hagopian called the District superintendent who sent a
maintenance crew to assist her. Ms. Hagopian testified that after Mr. Barrera learned she had
gone to the superintendent he went to her classroom, pointed at her and told here "never to go
above his head." She said his voice was "loud" and his tone of voice was angry.
This incident was witnessed by Ms. Williams who said Mr. Barrera "yelled at her
[Ms. Hagopian] in front of students and a parent that was in my classroom." Ms. Williams also
17

testified that she had observed Mr. Barrera "yell and scream" at a 5 th grade teacher whom he
accused of being late back to her classroom from lunch. In fact, Ms. Williams testified, the
teacher was not late back from lunch and Mr. Barrera apparently had thought she was a
primary grade teacher whose lunch period would have been over by that time.
The conflict in testimony about whether Mr. Barrera ever yelled at a teacher during his
time at Maxwell is reflective of a series of conflicts between the testimony of Mr. Barrera and
that of other witnesses. Mr. Barrera testified that he did not yell at Ms. Lohman when she
approached him on September 17, while he was on bus duty in front of the school.
Ms. Lohman and Ms. Hagopian testified that Mr. Barrera did yell at Ms. Lohman.
Mr. Barrera testified that he warned Ms. Lohman that she was supposed to be helping
Ms. Luna during the afternoons. Ms. Lohman testified that Mr. Barrera did not tell her she was
supposed to occupy her afternoons assisting Ms. Luna. Rather, Ms. Lohman testified,
Mr. Barrera told her she was to stay away from Ms. Ash and Ms. Fabre. Mr. Barrera denied
that he said anything about keeping away from Ms. Ash and Ms. Fabre.
Mr. Barrera testified that he checked with Mr. Weatherford before he terminated
Ms. Lohman and that Mr. Weatherford said that the District would be on solid legal ground.
Mr. Weatherford testified that when he first learned about the termination of Ms. Lohman it
was already an accomplished fact.
Mr. Barrera testified that he went to National University to complain about Mr. Nelson
and made every effort not to say anything about Ms. Lohman because it was a personnel
matter. Ms. Brown, corroborated by Ms. Miller, testified that Mr. Barrera spent his time
with them explaining why he had terminated Ms. Lohman and made no complaint against
Mr. Nelson.
18

Mr. Barrera testified that his comment at the February 6, 2002, meeting with teachers
was a benign observation that people no longer could sit down one-on-one and talk but had to
bring their "top guns or big guns" along in order to communicate. Ms. Lanier testified that
Mr. Barrera used a much more threatening phraseology, warning that "we're lining up our guns
and the Union's lining up their guns [and] I'm forced to take this up a notch." Ms. Williams
also recalled a more threatening phraseology with Mr. Barrera warning that "we decided to
tum it up a notch" and the Union better bring its "big guns to the table because the District is
bringing their something."
In order to credit Mr. Barrera's version of events, I would have to discredit
Ms. Lohman, Ms. Hagopian, Ms. Williams, Mr. Weatherford, Ms. Brown, Ms. Miller and
Ms. Lanier. This I decline to do. I find that Ms. Lohman, Ms. Hagopian, Ms. Williams,
Mr. Weatherford, Ms. Brown, Ms. Miller and Ms. Lanier gave internally consistent testimony
and that their descriptions of events were consistent with each other. Ms. Brown and
Ms. Miller were entirely disinterested witnesses who could neither gain nor lose anything as
a result of the outcome of this hearing. Mr. Weatherford was a management employee who
certainly had nothing to gain by offering a different version of the events that preceded
Ms. Lohman's termination than that offered by Mr. Barrera.
Based upon this credibility resolution, I find that Mr. Barrera did not advise
Ms. Lohman that she was supposed to be in the classroom every afternoon assisting Ms. Luna.
All he told her was to keep away from Ms. Ash and Ms. Fabre. I conclude further that on
September 17, Mr. Barrera did yell at Ms. Lohman when she approached him in front of the
school to discuss her lesson plans. I find that Mr. Barrera did not obtain Mr. Weatherford's
approval prior to dismissing Ms. Lohman and that Mr. Weatherford was unaware that she was
19

to be dismissed until she already had been terminated. Finally, I conclude that at a meeting
with teachers on February 6, 2002, Mr. Barrera warned that "we're lining up our guns and the
Union's lining up their guns [and] I'm forced to take this up a notch."
ISSUES
1. 	Did the District retaliate against Ms. Lohman because of her exercise of
protected rights and thereby violate section 3543.S(a) and/or (b) when Mr. Barrera terminated
her employment on September 27?
2. 	Did the District interfere with the right of employees to participate in the
activities of the Union and thereby violate section 3543.S(a) and/or (b) when Mr. Barrera made
allegedly threatening remarks to teachers on February 6, 2002?
CONCLUSIONS OF LAW
Retaliation
Public school employees have the protected right under section 3543(a)
... 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 "[i]mpose ...
reprisals on employees, to discriminate ... or otherwise to interfere with, restrain, or coerce
employees because of their exercise of [protected] rights .... "
In order to prove an allegation of discrimination, the charging party must first
demonstrate that the aggrieved employee engaged in protected conduct. The charging party
_must then show that the employer knew of the employee's protected act7 and that the employer
7Moreland Elementary School District (1982) PERB Decision No. 227.
20

took an adverse action against the employee. The adverse action cannot be speculative but
must be an actual harm. (Palo Verde Unified School District (1988) PERB Decision No. 689
(Palo Verde).)
Upon a showing of protected conduct and adverse action, the party alleging
discrimination must then make a prima facie showing of unlawful motivation. Under Novato
Unified School District (1982) PERB Decision No. 210 (Novato), unlawful motivation occurs
where an employer's action against an employee was motivated by the employee's participation
in protected conduct.8 Motivation is determined by a review of direct and circumstantial
evidence to see whether, but for the exercise of protected rights, the disputed action would not
have been taken against the employee. 9
After the charging party has made a prima facie showing sufficient to support an
inference of unlawful motive, the burden shifts to the respondent to produce evidence that the
8Indications of unlawful motivation have been found in many aspects of an employer's
conduct. Words indicating retaliatory intent can be persuasive evidence of unlawful motivation.
(Santa Clara Unified School District (1979) PERB Decision No. 104.) Another indication of
unlawful motivation has been found in the close proximity of an employer's adverse action to the
employee's protected conduct. (North Sacramento School District (1982) PERB Decision
No. 264.) Other indications of unlawful motivation have been found in the employer's:
(1) disparate treatment of the employee (State of California (Department of Transportation)
(1984) PERB Decision No. 459-S); (2) departure from established procedures and standards
when dealing with the employee (Santa Clara Unified School District, supra, PERB Decision
No. 104.); (3) inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) cursory
investigation of the employee's misconduct; (5) failure to offer the employee justification at the
time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) 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.)
9See Martori Brothers Distributors v. Agricultural Labor Relations Board (1981) 29 Cal.3d
721, 727-730 [175 Cal.Rptr. 626]; Wright Line. Inc. (1980) 251 NLRB 1083 [105 LRRM 1169]
enf., in relevant part (1st Cir. 1981) 662 F.2d 899 [108 LRRM 2513].
21

action "would have occurred in any event." (Martori Brothers Distributors v. Agricultural
Labor Relations Bd., supra, 29 Cal.3d at 730.) If an employer respondent then shows
misconduct on the part of the employee, the employer's action against the employee,
... should not be deemed an unfair labor practice unless the
board determines that the employee would have been retained
"but for" his union membership or his performance of other
protected activities. [Ibid.]
The Union argues that Ms. Lohman engaged in three acts of protected conduct: ( 1) her
representation of herself on September 17, regarding how Mr. Barrera had spoken to her at
their meeting in front of the school earlier that day; (2) her complaint on September 17
regarding the lack of supplies; 10 and (3) her attendance at a Union meeting on the evening of
September 27 and subsequent assertion of the right to be represented by the Union at a meeting
with Mr. Barrera the following day. The Union argues that Mr. Barrera was directly involved
in the first two of protected acts. The Union applies the small plant doctrine in asserting that
Mr. Barrera can be presumed to have learned about her attendance at the Union meeting." The
Union notes that Ms. Lohman notified Mr. Barrera in writing that she would be represented by
the Union at their meeting on September 28. Finally, the Union finds circumstantial evidence
of unlawful motivation in the timing of Mr. Barrera's decision to terminate Ms. Lohman, in
Mr. Barrera's cursory investigation of Ms. Lohman's alleged failure to assist Ms. Luna, in his
inconsistent justifications and his history of animus toward the Union and its adherents.
The District argues that the termination of Ms. Lohman could not possibly have been
based on her September 27 attendance at the Union meeting and subsequent representation by
the Union. By the time of those events, the District observes, Mr. Barrera already had decided
10 This assertion is raised for the first time in the Union's brief.
22

to replace Ms. Lohman and had hired her replacement. As to Ms. Lohman' s act of
self-representation, the District continues, the Union has failed to establish that this was the
reason Ms. Lohman was terminated. The District argues that the Union has failed to establish
unlawful motivation in the discharge. Moreover, the District continues, the evidence
establishes that Ms .. Lohman had documented problems in her work performance. Not only did
Ms. Lohman fail to assist Ms. Luna, the District argues, but she also was impatient with
children as documented by the observation of Mr. Nelson from National University.
Ms. Lohman did engage in protected conduct when on September 27 she attended a
Union meeting and wrote a note advising Mr. Barrera that she would bring a Union
representative with her to the meeting the following day. However, as the District observes,
this protected conduct could not possibly have motivated Mr. Barrera to terminate Ms. Lohman
because by September 27 he already had decided to fire Ms. Lohman and had hired her
replacement. Indeed, Mr. Barrera and Ms. Luna occupied part of September 26 interviewing
candidates to replace Ms. Lohman. The Union can prevail, therefore, only if Mr. Barrera
terminated Ms. Lohman because of her exercise of some other protected act. The complaint
alleges that Ms. Lohman engaged in another protected act when she represented herself at a
September 17 meeting with Mr. Barrera.
Prior to legislative amendments in 2000, section 3543 read in its entirety as follows:
Public School employees shall have the right 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. Public school employees shall also
have the right to refuse to join or participate in the activities of
employee organizations and shall have the right to represent
themselves individually in their employment relations with the
public school employer, except that once the employees in an
appropriate unit have selected an exclusive representative and it
has been recognized pursuant to Section 3544.1 or certified
23

pursuant to Section 3544.7, no employee in that unit may meet
and negotiate with the public school employer.
Any employee may at any time present grievances to his
employer, and have such grievances adjusted, without the
intervention of the exclusive representative, as long as the
adjustment is reached prior to arbitration pursuant to Sections
3548.5, 3548.6, 3548.7, and 3548.8 and the adjustment is not
inconsistent with the terms of a written agreement then in effect;
provided that the public school employer shall not agree to a
resolution of the grievance until the exclusive representative has
received a copy of the grievance and the proposed resolution and
has been given the opportunity to file a response. [Emphasis
added.]
The underlined language above was construed in Pleasant Valley School District (1988)
PERB Decision No. 708 (Pleasant Valley) as granting employees a protected right of
self-representation. The underlined language, the Board wrote, "clearly permits and protects"
employee self-representation. The rationale in Pleasant Valley. however, is based entirely
upon the statutory right of public employees "to represent themselves individually in their
employment relations with the public school employer." With the legislative amendment of
2000,11 this language no longer is contained in section 3543.
As now written, section 3543 does not identify either a right of employees "to represent
themselves individually in their employment relations with the public school employer" or a
right "to refuse to join or participate in the activities of employee organizations."12 With the
1I Stats. 2000, chapter 893.
12 Section 3543 as currently written reads in its entirety as follows:
(a) Public school employees shall have the right 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. If the exclusive representative of a
unit provides notification, as specified by subdivision (a) of
Section 3546, public school employees who are in a unit for
24

change, the BERA thus joins the Higher Education Employer-Employee Relations Act
(HEERA)13 in not having a provision specifically protecting an employee's act of self
representation. (See HEERA sec. 3565.) By contrast, the Meyers-Milias-Brown Act
(MMBA)14 and the Ralph C. Dills Act (Dills Act)15 both specifically protect the right of public
employees "to represent themselves individually in their employment relations with" public
employers. (MMBA sec. 3502 and Dills Act sec. 3515.)
which an exclusive representative has been selected, shall be
required, as a condition of continued employment, to join the
recognized employee organization or to pay the organization a
fair share services fee, as required by Section 3546. If a majority
of the members of a bargaining unit rescind that arrangement,
either of the following options shall be applicable:
(1) The recognized employee organization may petition for the
reinstatement of the arrangement described in subdivision (a) of
Section 3546 pursuant to the procedures in paragraph (2) of
subdivision (d) of Section 3546.
(2) The employees may negotiate either of the two forms of
organizational security described in subdivision (i) of Section
3540.1.
(b) Any employee may at any time present grievances to his or
her employer, and have such grievances adjusted, without the
intervention of the exclusive representative, as long as the
adjustment is reached prior to arbitration pursuant to Sections
3548.5, 3548.6, 3548.7, and 3548.8 and the adjustment is not
inconsistent with the terms of a written agreement then in effect;
provided that the public school employer shall not agree to a
resolution of the grievance until the exclusive representative has
received a copy of the grievance and the proposed resolution and
has been given the opportunity to file a response.
13 HEERA is found at section 3560 et seq.
14 The MMBA is found at section 3500 et seq.
15 The Dills Act is found at section 3512 et seq.
25

The omission of language from the EERA and HEERA is not to be treated lightly.
Such omissions are "strong evidence of a contrary legislative intent." (Regents of the
University of California v. Public Employment Relations Board (1985) 168 Cal.App.3d 937,
945 [214 Cal.Rptr. 698] (Regents).) This seems especially true where the Legislature has
removed a right that was contained in the EERA for 25 years. It may well be that the
Legislature intended to take the EERA away from permissive individual representation that
historically has been a characteristic of California public sector labor laws and move the EERA
toward the collective-representation-only model that marks federal labor relations statutes
covering the private sector. 16 Whatever the purpose, the Board cannot ignore the change and
thus "rewrite the statute to suit its notion of what the Legislature must have intended to say."
(Regents at p. 945.)
It is tempting to try to find a right of self-representation in the newly renumbered
section 3543(b) which permits a school employee to "present grievances to his or her
employer, and have such grievances adjusted, without the intervention of the exclusive
representative." The language in section 3543(b) has been part of the EERA since it was
enacted and apparently was modeled after the proviso in National Labor Relations Act (NLRA)
section 9(a). 17
16 See, e.g., Meyers Industries (1984) 268 NLRB 493 [115 LRRM 1025] (Meyers
Industries).
17 The NLRA is codified at 29 U.S.C., sec. 141 et seq. The proviso in NLRA section
9(a) reads in relevant part as follows:
... Provided, That any individual employee or a group of
employees shall have the right at any time to present grievances
to their employer and to have such grievances adjusted, without
the intervention of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of a collective
26

The NLRA section 9(a) proviso, however, has not been found to create a separate
protected right. The federal courts have limited the application of the section 9(a) proviso by
reading its intent very narrowly. The courts find the proviso to be nothing more than
an authorization for an employer to entertain grievances from individual employees
without liability for bypassing the exclusive representative. "The Act nowhere protects this
'right' by making it an unfair labor practice for an employer to refuse to entertain such a
presentation .... " (Emporium Capwell Co. v. Western Addition Community Organization
(1975) 420 U.S. 50, 61, fn. 12 [88 LRRM 2660, 2665], citing with approval Black-Clawson v.
Machinists (2nd Cir. 1962) 313 F.2d 179 [52 LRRM 2038, 2042].) The federal analysis of the
section 9(a) proviso was adopted by the PERB in Chaffey Joint Union High School District
(1982) PERB Decision No. 202 (Chaffey) as the appropriate interpretation of section 3543.18
Based upon the federal interpretation of section 9(a) of the NLRA as adopted in Chaffey, I
conclude that section 3543(b) cannot be read to create in the EERA a protected right of self
representation.
From the 2000 revision of section 3543 and the cases cited above, I conclude that the
EERA no longer protects employees who represent themselves individually in their
employment relations with their public school employer. Therefore, although the evidence is
compelling that Mr. Barrera terminated Ms. Lohman because she represented herself in the
bargaining contract or agreement then in effect: Provided further,
That the bargaining representative has been given opportunity to
be present at such adjustment.
18 It is proper to take guidance from cases interpreting the NLRA when interpreting
California labor relations statutes with parallel provisions. (Firefighters Union v. City of
Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr. 507].)
27

September 17 meeting with him,19 I conclude that her act of self-representation was not a
protected act.
The Union for the first time here asserts that Ms. Lohman also engaged in protected
conduct when she complained to Mr. Barrera about the lack of supplies for kindergarten
students. The Union argues that participation in informal employee organizations is a
protected activity, citing State of California (Department of Developmental Services) (1982)
PERB Decision No. 228-S. Thus the Union concludes Ms. Lohman was protected when she
spoke to Mr. Barrera about school supplies.
In arguing that Ms. Lohman was terminated because she spoke to Mr. Barrera about a
shortage of kindergarten supplies the Union asserts an unalleged violation. This contention
was not set forth in the charge or in the complaint. The District had no notice of this assertion
and it has not been litigated. (See Tahoe-Truckee Unified School District (1988) PERB
Decision No. 668.) It is, therefore, not properly before me and will not be considered.20
19 The first credible evidence of Mr. Barrera's dissatisfaction with Ms. Lohman is found
in his comments on the morning of September 18 to Mr. Nelson, the student teacher supervisor
from National. This was the day after Ms. Lohman represented herself by telling Mr. Barrera
that "you cannot treat me like that." By September 19, two days after Ms. Lohman's act of
self-representation, Mr. Barrera already was making arrangements to interview candidates
to replace her. He made this decision without seeking any input from either Mr. Nelson
or Ms. Williams, the master teacher. He did not clear his decision in advance with
Mr. Weatherford. I have found that neither Mr. Barrera nor Ms. Luna told Ms. Lohman that
she was supposed to spend more time in the afternoon helping Ms. Luna. Thus, the decision to
fire Ms. Lohman was made immediately after her act of self-represent.ation. Ms. Lohman
was never told of her alleged deficiencies and was given no opportunity to correct them. The
pre-termination investigation was cursory to non-existent.
20 I would observe that even if the argument were properly before me, it could not be
sustained. Ms. Lohman did not go to Mr. Barrera to represent other kindergarten teachers.
She went to Mr. Barrera to explain why she did not write new lesson plans for the week. Thus
cases holding that an employee is protected when asserting rights on behalf of co-workers
(e.g., Contra Costa Community College District (2003) PERB Decision No. 1520; Churchill's
Restaurant (1985) 276 NLRB 775, 777 [120 LRRM 1233]) are inapplicable. I would note,
28

Accordingly, the allegation that the District terminated Ms. Lohman because she
engaged in protected conduct must be dismissed.
Interference
Public school employees have the protected right under BERA 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 the 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.)2 1 In an interference case, it
finally, that it is not at all clear that teacher requests for student crayons and scissors fall within
the BERA scope of representation or that a person representing co-workers about a non
negotiable matter engages in protected conduct.
21 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 BERA, 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
occasioned by circumstances beyond the employer's control and that
no alternative course of action was available;
29

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 when Mr. Barrera "angrily remarked at a faculty meeting that the
District was lining up its 'guns' and warned that he was going to take things 'up a notch"'
teachers in attendance were susceptible to intimidation. The Union argues that given the
history of Mr. Barrera's conduct with teachers at Maxwell, the comment could only be
interpreted as a threat and was an unfair practice.
The District argues that an employer is entitled to express its views on employment
related matters. The District characterizes Mr. Barrera's remarks at the February 6, 2002, staff
meeting as permissible expressions of opinion. The District argues that Mr. Barrera made no
threat of reprisal or force. 	The District argues that Mr. Barrera's use of the term "big guns" or
"top guns" could not reasonably be characterized as a warning to bring firearms to the campus.
The issue in an interference case involving statements made by an employer agent is
whether the employer's speech was coercive and thereby interfered with employee exercise of
protected rights. In Rio Hondo Community College District (1980) PERB Decision No. 128
(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 BERA. [Fn. omitted.]
The effect of the employer conduct is measured against an objective standard and not whether
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.
30

a particular employee actually felt intimidated. (Clovis Unified School District (1984) PERB
Decision No. 389 (Clovis.))
On February 6, 2002, Mr. Barrera stood in front of an assembly of Maxwell School
teachers and warned that "we're lining up our guns and the Union's lining up their guns [and]
I'm forced to take this up a notch." This comment was made following a District-conducted
investigation of Mr. Barrera's conduct toward his staff, an investigation instigated by the
Union. Mr. Barrera permitted no questions or remarks from teachers. Mr. Barrera had a
history of yelling at teachers, berating them in front of others and losing his temper in front of
them. His comments on February 6, 2002, plainly were aimed at those teachers who took their
complaints about his misconduct to the Union. His warning that he was going "to take this up
a notch" was a clear threat to teachers not to engage in the protected activity of going to the
Union. Any teacher, hearing this comment, reasonably would feel threatened. (Clovis.)
Mr. Barrera, as principal, was an actual agent of the District and his threat is binding
upon the District. (See discussion in Compton Unified School District (2003) PERB Decision
No. 1518.) Mr. Barrera's threat was the type of conduct that is inherently destructive of
statutorily protected rights. The District has presented no evidence that Mr. Barrera's bold
threat ofretaliation was occasioned by events beyond the District's control. Indeed, the
District has not even shown an operational necessity that would justify Mr. Barrera's threat
against teachers because of their exercise of protected rights.
Accordingly, I conclude that the District interfered with employee rights when
Mr. Barrera threatened teachers at a February 6, 2002, meeting at the Rhoda Maxwell School.
Mr. Barrera's threat was a violation of section 3543.S(a). Because Mr. Barrera's threat would
have the natural effect of discouraging employees from participating in the activities of the
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Union, the threat 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 3541.5(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
of employees with or without back pay, as will effectuate the
policies of this chapter.
Although the District no longer employs Mr. Barrera, it is appropriate nevertheless to
issue an order directing the District to cease interference with the protected activities through
threats of reprisals by its agents. 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 Woodland Joint Unified School District (District) violated
Government Code section 3543.S(a) and (b), provisions of the Educational Employment
Relations Act (Act). The District violated the Act when its agent, Arturo Barrera, threatened
32
·

teachers at the Rhoda Maxwell School by warning of reprisals because they took their
complaints about him to the Woodland Education Association (Union) and ultimately to
District administrators.
Pursuant to section 3541.S(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. 	Threatening teachers with reprisals because of their exercise of the right
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. 	Interfering with the right of the Union to represent its members.
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 Sacramento Regional Director of the Public
Employment Relations Board in accord with the director's instructions.
All other allegations against the District that are set out in the complaint in case
SA-CE-2089-E are hereby DISMISSED.
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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 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. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
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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).)
35
Ronald E. Blubaugh
Administrative Law Judge