Chico Unified School District (PERB 2463E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CHICO UNIFIED TEACHERS ASSOCIATION,
Charging Party,
v.
CHICO UNIFIED SCHOOL DISTRICT,
Res ondent.
Case No. SA-CE-2658-E
PERB Decision No. 2463
December 22, 2015
Appearances: 	California Teachers Association by Ramon Romero, Attorney, for Chico
Unified Teachers Association; Kingsley Bogard by Paul R. Gant, Attorney, for Chico Unified
School District.
Before Martinez, Chair; Banks and Gregersen, Members.
DECISION
GREGERSEN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Chico Unified Teachers Association (Association)
to the proposed decision (attached) of a PERB administrative law judge (ALJ). The complaint
alleged that the Chico Unified School District (District) violated the Educational Employment
Relations Act (EERA)1 when it took adverse action against bargaining unit member
Kevin Payne (Payne) because of his exercise of protected rights by assigning him to teach non-
welding courses. The complaint alleges thatthis conduct vi_olates EERA section 3543.5(a).2
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 Section 3543.5 provides, in pertinent part:
It is unlawful for a public school employer to do any of the
following:

The ALJ issued a proposed decision dismissing the complaint and underlying charge,
concluding that the Association had failed to prove its case. The Association timely filed a
statement of exceptions and the District filed a timely response.
The Board has reviewed the record, the ALJ's proposed decision, the Association's
exceptions, and the District's response thereto. We conclude that the ALJ's main factual
findings are supported by the record, and we adopt the ALJ' s findings as the findings of the
Board itself. With the exception of finding that the Association failed to prove the requisite
additional nexus factor for establishing a prima facie case of retaliation, we affirm the ALJ's
conclusions of law, and to the extent they are consistent with our discussion below we adopt
them as the decision of the Board itself.
PROCEDURAL HISTORY
On July 26, 2012, the Association filed an unfair practice charge alleging that the
District retaliated against Payne, and unilaterally changed its policy concerning the distribution
of extra duty assignments.
On August 27, 2012, the District filed its position statement in response to the charge.
On January 30, 2013, the Association withdrew the unilateral change allegation.
On February 4, 2013, PERB's Office of the General Counsel issued a complaint
alleging that the District had retaliated against Payne in violation of EERA section 3543.S(a),
when it assigned him to teach courses on June 20, 2012, other than the agricultural welding
(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.
2

courses Payne had exclusively taught for eigqt years, and when it directed Payne to work on
the model farm project on July 19, 2012.
On February 13, 2013, the District filed its answer, denying the material allegations of
the complaint and asserting several affirmative defenses.
On March 22, 2013, the parties met for an informal settlement conference, but the
matter was not resolved.
On June 18 and 19, 2013, the ALJ conducted a formal hearing. During the hearing, the
Association withdrew its allegation regarding the District's direction to have Payne work on.
the model farm project.
On August 21, 2013, the parties filed closing briefs.
On September 27, 2013, the ALJ issued her proposed decision .
.on November 8, 2013, the Association timely filed its exceptions, to which the District
timely responded on December 2, 2013.
On December 3, 2013, PERB's Appeals Assistant informed the parties that the filings
were complete and the matter was placed on the Board's docket.
FACTUAL SUMMARY
Chico High School (CHS) is one of the few public schools in the State of California
that maintains an Agricultural (Ag) Department. Payne is currently one of four teachers at
CHS in the Ag Department. He holds a single subject teaching credential in Agriculture, an
Agriculture Specialist credential, and a Building and Construction Trades credential. From
2002 until 2010, Payne was one of three teachers in the CHS Ag Department and the only
teacher who taught Ag Welding. In 2002, the other two teachers in the Ag Department were
3

David Wemp (Wemp) and Quinn Mendez (Mendez). In 2007, Wemp retired and was replaced
by Sheena Sloan (Sloan).
At the end of the 2006-2007 school year, the District began discussions about reducing
the size of the Ag Department from three teachers to two. In response, a group of concerned
citizens calling themselves "Friends of Agriculture" organized to support the CHS Ag
Department. The Friends of Agriculture donated funds directly to the salary of the third Ag
Department teacher and sponsored the creation of a working student farm known as "Henshaw
Farm."
At the end of the Spring 2010 semester, Payne was involuntarily transferred to a junior
high school where he was assigned to teach Industrial Technology. The Industrial Technology
class teacher from the junior high school, Ronnie Cockrell (Cockrell), was involuntarily
transferred to CHS and assigned to teach the Ag Welding classes. Cockrell holds an Industrial
Technology credential and a Physical Education credential. In August 2010, Payne grieved the
involuntary transfer.3
During the two years that Payne was assigned to the junior high school, the Ag
Department at CHS grew in size and new classes were offered. For the 2010-2011 school year,
after approval from the CHS Instructional Council,4 the District introduced an "Ag Earth
Science" course to the Ag Department designed to satisfy the graduation requirement for
3 Cockrell did not grieve his involuntary transfer.
4 The CHS Instructional Council is made up of all CHS Department Chairpersons and is
tasked with reviewing new course offerings and determining proper placement within
instructional departments.
4

physical science. 5 Prior to this new course offering, Earth Science courses had been offered
only through the Science Department. Adding the new courses resulted in an increase in the
overall student enrollment in the Ag Department. Although, enrollment in Ag Earth Science
decreased slightly during the.2011-2012 school year, the overall student enrollment numbers in
the CHS Ag Department continued to increase. As a result, during the 2011-2012 school year,
the District also added an additional sixth section of Ag Welding. As with Ag Earth Science,
the addition of the sixth Ag Welding class increased the overall student enrollment in the Ag
Department.
Early in the Spring 2012 semester, the District began preparing the CHS master
calendar for the 2012-2013 school year. CHS District Principal Jim Hanlon (Hanlon) testified
that the process for creating the master calendar begins in February with a pre-registration of
the incoming senior class to determine their course preferences. Surveys are typically
completed by the incoming seniors ii). mid-April, and final responses are received in mid-May
from the remaining student body. After the completion of this process, the District determines
which courses will be offered and by whom.
As a result of the continued increased student enrollment in the Ag Department, the
District began contemplating whether to hire a fourth Ag teacher to keep the class size small,
or to add additional classes and sections to each Ag teacher's schedule for the 2012-2013
school year. The District's goal of having a fourth teacher centered around finding someone to
strengthen the business part of the Ag Department since none of the current teachers were
comfortable teaching those subjects. To that end, the District made the decision to add two
new courses for the 2012-2013 school year: Veterinary Science and Ag Marketing
5 During the 2010-2011 school year, the District also introduced an "Ag Econ/Gov"
course.
5

(management of Henshaw Farm). In addition, the District also added an additional section of
Ag Econ/Gov and two additional sections of Ag Earth Science.
In the meantime, Payne's grievance over his involuntary transfer proceeded to
arbitration. The arbitration hearing was held over seven days between June 1 and October 19,
2011. On March 16, 2012, an award was issued. The arbitrator sustained Payne's grievance
and ordered the District to "return [Payne] to his prior position in the [Ag] Department at
[CHS], effective with the start of the 2012-2013 school year." When the arbitration award was
issued, the District had the option of either absorbing Payne back into the Ag Department
while retaining the three existing teachers including Cockrell, or restoring Payne and
eliminating one of the other three teaching positions. Because of increased student enrollment
in the Ag Department and the additional classes being offered, the District chose to have four
teachers in the Ag Department.
In early June 2012, Payne learned that he would not be the only Ag Welding teacher .at
CHS. The District did not assign Payne to teach all Ag Welding classes as he had taught prior
to his involuntary transfer. Instead, Payne was assigned to teach two beginning Ag Welding
classes and two additional courses he had never taught before: Ag Econ/Gov and Intro to Ag.
Hanlon testified as to the District's rationale for the 2012-2013 class assignments citing
both an increase in the number of students and the scope of credentials of the Ag Department
teachers. He stated that when determining teacher assignments, the District discovered that it
was hampered by the fact that Cockrell did not have an Agricultural credential like Payne and
the other Ag Department teachers. While the Ag Department is, as a whole, a "department of
electives," some of the courses offered within the Ag Department satisfy state mandated
graduation requirements such as Environmental Horticulture, Ag Biology, and Ag Econ/Gov.
6

Courses such as Ag Welding do not correlate to any state mandated graduation requirements.
While Cockrell's Industrial Technology credential provided the necessary qualifications to
teach Ag Welding, it did not permit him to teach the other courses, which correlated to state
mandated graduation requirements. As a result, there was no way for the District to make the
2012-2013 school schedule work if Cockrell was not assigned to teach Ag Welding. The
District would have had to involuntarily transfer Cockrell out of the Ag Department, had it
given Payne all Ag Welding courses. There was also a restriction on the total number of Ag
Welding courses that could be scheduled in a given day, since the Ag Department had only one
welding shop. Therefore, the District could not retain Cockrell and simply increase the
number of Ag Welding courses offered.
In the end, the District chose to retain Cockrell, and he and the remaining two Ag
teachers were assigned to teach courses during the 2012-2013 school year that fell outside the
gamut of courses they had been assigned to teach in previous years. Cockrell, in addition to
being scheduled to teach three Ag Welding classes, was also assigned to teach the new "Ag
Marketing," an elective course intended to encompass work associated with Henshaw Farm.
Sloan was assigned to teach the new Veterinary Science course in addition to two sections of
Ag Earth Science, a course she had not previously taught. Hanlon testified that Mendez was
also assigned to teach a section of Ag Earth Science, a new course for her.
Hanlon further testified that since the pre-registration for incoming seniors started in
February, it was well underway by the time the Arbitrator's decision issued. The Advanced
Ag Welding course and the Ag Econ/Gov course were populated entirely by seniors. In
addition, Advanced Ag Welding was a two-hour block class. These courses needed to not only
be balanced against other senior classes in the master schedule, but the two-hour Advanced Ag
7

Welding block needed to be placed on the master schedule before other classes, since moving a
block course after the fact would be highly disruptive to the scheduling process.
Payne believed that his 2012-2013 class assignments were in contravention of the
Arbitrator's award. As a result, the Association sought and received a clarification from the
arbitrator. The arbitrator responded that the award issued in March 2012 only ordered that
Payne be reassigned to the CHS Ag Department, and did not mandate that Payne be assigned
to teach the same classes that he had taught prior to the involuntary transfer.
On July 19, 2012, Association Representative Kevin Moretti (Moretti) sent an e-mail
message to Hanlon raising concerns about the extra duty assignments6 for Payne and Cockrell.
On July 20, 2012, in response to MorettPs e-mail message, Hanlon sent a lengthy response
containing the following:
Kevin Payne fought to come back to CHS and since he won the
arbitration regarding the transfer he has gone to you about his
class assignment and now the expectations of his extra duties.
His reluctance to actually do the job he fought so hard to get back
is becoming unacceptable.
Kevin doesn't "get along well" with the Friends of "Ag, the Ag
Boosters, his co-workers at CHS or the administration at CHS.
Even the arbitrator acknowledged "he is difficult to work with."
My expectations are that he is professional at all times in dealing
with all these groups and I will hold him to that standard.
On August 3, 2012, the District published the Ag Department class assignment for the
2012-2013 school year. Payne's class assignment remained unchanged.· He was scheduled to
teach two beginning Ag Welding classes, two classes of Ag Econ/Gov and one class of Intro to
6 The Ag Department has a negotiated stipend paid to each Ag teacher for additional
work done outside the classroom, typically extra work done maintaining the Henshaw Farm.
8

Ag. Cockrell was scheduled to teach two beginning Ag Welding classes, a two-hour block of
Advanced Ag Welding, and Ag Marketing.
PROPOSED DECISION
The ALJ identified the issue before her as whether the District issued Payne's class
assignment for the 2012-2013 school year in retaliation for his filing of the August 2, 2010
gnevance.
After reviewing the elements of a prima facie case, the ALJ concluded that: ( 1) Payne
engaged in protected activity by filing the August 2010 grievance and pursuing it through
arbitration (Proposed Dec., p. 15); (2) the District clearly had knowledge of Payne's protected
activity (Proposed Dec., p. 15); and (3) the District's class assignment for Payne for the 2012-
2013 school year constituted adverse action. (Proposed Dec., p. 17.)
Regarding nexus, the ALJ determined that the adverse action occurred in temporal
proximity to Payne's protected activity, but she found no other nexus factors. The ALJ
concluded, therefore, that the Association had failed to establish a prima facie case of
retaliation. Additionally, the ALJ determined that the District established its affirmative
defense that retaliation was not the motive for Payne's class assignments. The ALJ found that
the District was restricted in the number of Ag Welding classes that could be offered in any
given day, and also by the courses Cockrell's credential allowed him to teach. The ALJ
therefore dismissed the Association's complaint and underlying charge.
DISCUSSION
Prima Facie Case
As stated by the ALJ, to demonstrate that an employer discriminated or retaliated
against an employee in violation of EERA section 3543.5(a), the charging party must show
9

that: (1) the employee exercised rights under EERA; (2) the employer had knowledge of the
exercise of those rights; (3) the employer took adverse action against or adverse to the interest
of the employee; and (4) the employer took the action because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
Protected Activity, Employer Knowledge and Adverse Action
The ALJ found that Payne engaged in protected activity under EERA by filing a
grievance and pursuing it through arbitration and that the District's knowledge of the protected
activity was not in dispute. The ALJ further found that the District's decision to assign Payne
to teach different classes was adverse because the assignment created less favorable working
conditions for Payne. We concur with the ALJ's discussion of protected activity, employer
knowledge, and adverse action on pages 15 through 17 of the proposed decision.
Nexus
The focus of the Association's exceptions is the ALJ's determination that Payne failed
to sufficiently establish the fourth element of the prima facie case, i.e., that the District took
action against Payne because ofhis protected activity. The Association asserts that the record
evidence does not support the ALJ' s conclusions on this point. The Association further asserts
that, having established a prima facie case, the burden shifted to the District to prove that its
decisions were not motivated by Payne's protected activity, and that the District failed to meet
this burden.
The fourth element in the prima facie case is the line or link connecting the adverse
action to the protected activity. (Chula Vista Elementary School District (2011) PERB
Decision No. 2221 (Chula Vista) citing The TM Group, Inc. and Kimberly Grover (2011)
357 NLRB No. 98 (The TM Group).) It seeks to establish whether the employer acted with an

unlawful motive. Motive may be proven either by direct or circumstantial evidence, or by a
combination of both.
Unlawful motive is the specific nexus required in the
establishment of a prima facie case. Direct proof of motivation is
rarely possible since motivation is a state of mind which may be
known only to the actor. Unlawful motive can be established by
circumstantial evidence and inferred from the record as a whole.
(Trustees of Cal. State University v. Public Employment Relations Bd. (1992) 6 Cal.App.4th
1107, 1124 (Trustees of CSU).)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is one important nexus factor (North Sacramento School District
(1982) PERB Decision No. 264 (No. Sacramento Sch. District), it does not, without more,
demonstrate the necessary connection or "nexus" between the adverse action and the protected
conduct. (11,!oreland 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 Cl<;1ra 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 cursory investigation of the
employee's misconduct (City of Torrance (2008) PERB Decision No. 1971-M; Coast
Community College District (2003) PERB Decision No. 1560); (5) the employer's failure to
offer the employee justification at the time it took action ( Oakland Unified School District
(2003) PERB Decision No. 1529), or the offering of exaggerated, vague, or ambiguous reasons
11

(McFarland Unified School District (1990) PERB Decision No. 786); (6) employer animosity
towards union activists (Jurupa Community Services District (2007) PERB Decision
No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or
(7) any other facts that might demonstrate the employer's unlawful motive (No. Sacramento
Sch. District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210).
Regarding timing of the adverse action, Payne engaged in protected activity beginning
with his grievance filing in August 2010. That activity continued well past the issuance of an
arbitration award in March 2012, since representatives for both parties engaged in a series of
subsequent communications regarding implementation of the award, which continued through
July 2012. Less than one month later, on August 3, 2012, the District published the Ag
Department class assignment for the 2012-2013 school year, which significantly differed from
Payne's former teaching assignment. The proximity in time between the protected activity and
the adverse action goes to the strength of the inference of unlawful motive, but is not
determinative by itself. (California Teachers Association, Solano Community College Chapter,
CTAINEA (I'sai) (2010) PERB Decision No. 2096.) We have long held that adverse action
occurring within one to two months of protected activity is more than sufficient to determine
the requisite timing element. (Calaveras County Water District (2009) PERB Decision
No. 2039-M.) Consequently, the Association established that the District took adverse action
against Payne close in time to his protected activity.
While the ALJ correctly concluded that numerous allegations of unlawful motive were
not proven, the ALJ did not address Hanlon's July 20, 2012, e-mail message response to
Moretti in the context of whether it established a requisite additional nexus factor. As written,
the e-mail message shows that Hanlon harbored at least some animus toward Moretti's efforts
12

on behalf of Payne and toward Payne's participation in the grievance process and effort to seek
assistance from his union. Hanlon told Moretti that Payne "fought to come back to CHS and
since he won the arbitration regarding the transfer he has gone to you about his class
assignment and now the expectations of his extra duties." Hanlon further stated that Payne's
"reluctance to actually do the job he fought so hard to get back is becoming unacceptable."
PERB has held that statements by management discouraging the pursuit of a grievance
constitute an expression of union animus. (Jurupa Community Services District, supra, PERB
Decision No. 1920-M.) Therefore, we find the above statements by Hanlon support an
inference of retaliation.
Based on all of the above, we conclude that Payne presented a prima facie case of·
retaliation.
The Affirmative Defense
Once a prima facie case is established, the burden of proof shifts to the employer.
Under the burden-shifting framework, the employer bears the burden of proving it would have
taken the same action even in the absence of the protected activity. (Chula Vista, supra, PERB
Decision No. 2221; Novato, supra, PERB Decision No. 210; Martori Brothers Distributors v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730 (liJartori Brothers Distr.).)
Thus, "the question becomes whether the [adverse action] would not have occurred 'but for'
the protected activity." (Afartori Brothers Distr., supra, 29 Cal.3d 721, 729.) The "but for"
test is "an affirmative defense which the employer must establish by a preponderance of the
evidence." (Trustees of CSU, supra, 6 Cal.App.4th 1107, 1130 citing McPherson v. Public
Employment Relations Bd. (1987) 189 Cal.App.3d 293, 302-304.) When conducting the "but
for" analysis, "PERB weighs the employer's justifications for the adverse action against the
13

evidence of the employer's retaliatory motive." (Baker Valley Unified School District (2008)
PERB Decision No. 1993 .) When evaluating the employer's justification, the question is
whether the justification was "honestly invoked and was in fact the cause of the action." (The
TM Group, supra, 357 NLRB No. 98, citing Framan Mechanical Inc. (2004) 343 NLRB 408.)
At the formal hearing, Hanlon testified that student interest in the school's Ag courses
had significantly increased by the 2012-2013 school year. Due to the increased interest,
additional class offerings in the Ag Department could sustain an additional teacher. Cockrell
had a credential which limited the classes he was permitted to teach. The remaining three
teachers in the Ag Department held teaching credentials that enabled them to teach a broader
range of courses, including courses which met the state mandated graduation requirements, but
were not necessarily the courses each teacher had been historically assigned. As a result, the
remaining three teachers were assigned to teach courses during the 2012-2013 school year that
fell outside the gamut of courses they had been assigned to teach in previous years.
In its exceptions, the Association asserts that the District had more than sufficient time
to figure out what to do with Cockrell given his limited credential so that Payne could
exclusively teach Ag Welding. However, as Hanlon testified, had the District attempted to
give Payne all the Ag Welding courses, it would have had to involuntarily transfer Cockrell out
of the Ag Department and hire someone else with Agricultural credentials. Likewise, adding
additional Ag Welding courses to justify retention of Cockrell and to allow Payne to teach
exclusively Ag Welding was not possible since there is only one welding shop making it
impossible to schedule more than six Ag Welding classes.
The Association next asserts that given the arbitrator's decision and award in favor of
Payne and Hanlon's subsequent July 20, 2012, e-mail message to Payne and the Association,
14

Hanlon's testimony at the formal hearing as a whole "should not be relied upon as the
exclusive evidence in support of the District's case." The Association appears to be arguing
that it should be permitted to use the District's ultimate loss in the arbitration as cause for
disregarding Hanlon's testimony. The issue before PERB is distinct from the matter decided
by the arbitrator. As such, we find this exception meritless.
The Association further takes issue with the ALJ's reliance on Hanlon's testimony,
arguing that he was tainted by union animus. However, the inference of union animus and
issues of the trustworthiness of Hanlon' s testimony are two separate issues. If the Association
believed Hanlon' s testimony to not be credible, it had an obligation to discredit it either
through impeachment on cross-examination or by offering more credible testimony through its
own witnesses. Without having done that, the ALJ, and now the Board, have no basis to
disregard, discount, or discredit Hanlon's testimonial evidence.
The Association also, for the first time in its statement of exceptions, objects to the
testimony Hanlon gave about District Human Resources Specialist Heather Deaver (Deaver).
According to Hanlon, it was Deaver who determined that Cockrell was not credentialed to
teach any other classes, and that if he was assigned to teach a class for which he was not
credentialed, the District's Human Resources Department would be notified by the Butte
County Office of Education. The Association argues that this evidence constitutes
inadmissible hearsay in violation of PERB Regulation 321767 and was therefore improperly
7 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq. PERB Regulation 32176 provides, in pertinent part:
Compliance with the technical rules of evidence applied in the
courts shall not be required. Oral evidence shall be taken only on
oath or affirmation. Hearsay evidence is admissible but shall not
be sufficient in itself to support a finding unless it would be
admissible over objection in civil actions. Immaterial, irrelevant,
15

relied upon by the ALJ. The Association's argument must be rejected. Evidence that Cockrell
was not credentialed to teach any classes other than Ag Welding and Ag Marketing was not
admitted for the truth of the matter, but to demonstrate the state of mind of the District's
decision-makers when creating the master schedule. Moreover, there is no support in the
record that the District was not operating under a good faith belief as to the limited scope of
Cockrell's credential. Submitted for this purpose, such evidence is not hearsay. (Cal. Evid.
Code,§ 1250; Regents of the University of California (San Francisco) (2014) PERB Decision
No. 2370-H [hearsay is admissible not for its truth, but to demonstrate state of mind].)
Although the Association established a prima facie case of retaliation, the District
demonstrated that it had a non-discriminatory reason for its action. Creating a master calendar
is a complex and time consuming process, one that requires the balancing of many factors
including student enrollment, scope of credentials, number of teachers, variety of course
offerings, the importance of including a balance of electives, and graduation requirements.
The complexity of the process and the prerogative needed by the District to devise a master
calendar is confirmed by the arbitrator's clarification of the arbitration award. In consideration
of all the factors as a whole, but predominately the increased student enrollment during the
2012-2013 school year and the scope of credentials amongst the existing Ag Department
teachers, we conclude that even in the absence of Payne's protected activity, the District would
have made the same course assignments as it did.
or unduly repetitious evidence may be excluded. The rules of
privilege shall apply. Evidence of any discussion of the case that
occurs in an informal settlement conference shall be inadmissible
in accordance with Evidence Code Section 1152.
16

ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SA-CE-2658-E,
Chico Unified Teachers Association v. Chico Unified School District, is hereby DISMISSED.
Chair Martinez and Member Banks joined in this Decision.
17

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CHICO UNIFIED TEACHERS ASSOCIATION,
Charging Party,
v.
CHICO UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-2658-E
PROPOSED DECISION
(09/27/2013)
Appearances: 	Chico Unified Teachers Association, CTA/NEA by Ramon E. Romero, CTA
Staff Attorney; Kingsley Bogard LLP by Paul R. Gant, Attorney, for Chico Unified School
District.
Before Alicia Clement, Administrative Law Judge.
PROCEDURAL HISTORY
On July 26, 2012, the Chico Unified Teachers Association (Union) filed an unfair
practice charge with the Public Employment Relations Board (PERB or Board) against the
Chico Unified School District (District) alleging retaliation against its member, Kevin Payne
and unilateral change to its policy concerning the distribution of extra duty assignments. On
January 30, 2013, the Union withdrew the allegation of unilateral change. On February 4,
2013, the PERB Office of the General Counsel issued a complaint as to the allegation that the
District retaliated against Payne when, on June 20, 2012, it assigned him to teach courses other
than the agricultural welding courses Payne had exclusively taught for eight years; as well as
when, on July 19, 2012, it directed him to work on the model farm project.
A formal hearing was held on June 18 and 19, 2013. On June 19, 2013, on the second
day of the formal hearing, the Union withdrew the retaliation allegation in paragraph six of the
complaint, related to the model farm project. Upon receipt of the parties' closing briefs on
August 21, 2013, the matter was submitted for decision. The sole remaining allegation in the
complaint is that Payne's 2012-2013 class assignment was retaliatory.

FINDINGS OF FACT
The District is a public school employer within the meaning of Educational
Employment Relations Act (EERA) 1 (EERA) section 3540.l(k). The Union is the exclusive
representative of the District's certificated employees within the meaning of EERA section
3540.l(e).
Background:
Chico High School (CHS) is among a dwindling number of public schools throughout
the State that maintains an Agriculture (Ag) Department. Over the course of recent years, the
Ag Departll}ent has suffered, as so many non-core curriculum subjects have, from budget cuts.
There have been times in recent history when the District has contemplated laying off one of
the Ag teachers. This need has been dictated by funding concerns, as well as fluctuations in
student enrollment in the Department. Nevertheless, the Department has maintained three
teachers: Quinn Mendez teaches primarily plant science classes; Sheena Zweigle teaches
primarily animal science classes; and from 2002 through the 2010-2011 school year, Kevin
Payne taught Ag Welding.
Ag Department teachers perform a number of other duties in addition to their classroom
assignments, including supervising student projects, judging teams and contests, transporting
students and livestock, fundraising, report writing, and a variety of other community
appearances and activities. These additional duties were typically divided among the Ag
Department teachers at the beginning of the school year. Because these additional activities
take place outside of classroom teaching hours, Ag Department teachers are compensated an
additional 0.2 FTE (full time equivalent) to account for that extra work.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated all statutory references are to the Government Code. PERB Regulations are codified
at California Code of Regulations, title 8, section 31001 et seq.
2

Payne's career at Chico High School (CHS) began in the fall of 2002. Prior to
beginning his teaching career at CHS, Payne studied Agriculture at California Polytechnic and
earned a single subject teaching credential in Agriculture, an Agriculture Specialist credential,
and a Building and Construction Trades credential. Agricultural Welding (Ag Welding) was
among the course work that Payne completed both in college and while he was a student of
Chico High School's graduating class of 1995.
While clearly a subject that focuses on the technical skills of welding, the primary
application of Ag Welding is repairs or fabrication of new parts for farm equipment. Thus, the
course work for Ag Welding has always been categorized at CHS as falling within the
Agriculture Department. As taught by Payne at CHS, Ag Welding assignments could range
from fabricating parts for use by private companies who supply the design specifications and
materials; fixing trailers and other farm equipment; and learning the basic skills necessary to
complete different types of welds and operate different types of welding equipment.
At the end of the 2006-2007 school year, long-time Ag Department teacher and
Department Chairperson Dave W emp retired. At the time, there was discussion in the District
of reducing the size of the Ag Department from three to two teachers, essentially not filling the
vacancy created by Wemp's retirement. In 2007 or 2008, a group of concerned citizens,
calling themselves "Friends of Agriculture," organized to support the District's agriculture
programs. The Friends of Agriculture donated funds that were applied directly to the salary of
a third Agriculture Department teacher. It was at this time that Zweigle was hired to teach
animal science and Payne took over the Department Chair duties. In addition to funding a
third teaching position, the Friends of Agriculture sponsored the creation of a working student
farm. This student farm, which was located on District property near Henshaw Road, became
known as the "Henshaw Farm."
3

The Henshaw Farm was a new project for the District and the Ag Department. Not
only did the creation of the farm result in additional work for Ag teachers, it also introduced a
new element of scrutiny from the Friends of Agriculture with regard to the role that Ag
Teachers played in the supervision and use of the Henshaw Farm. The additional work that
was made necessary in order to maintain the student farm created conflict among the three
members of the Ag Department staff. The added scrutiny from Friends of Agriculture,· in turn,
created conflict between Payne and one or more vocal members of the Friends of Agriculture.
In April 2010, CHS Principal Jim Hanlon notified Payne that he was being removed
from his position as Chair of the Ag Department. On May 13, 2010, Payne received a written
notice that he was tentatively being involuntarily transferred from his position at CHS to Chico
Junior High School where he would be assigned to teach Industrial Technology. 	On July 27,
2010, Hanlon formalized the involuntary transfer.
Facts Giving Rise To This Complaint:
On August 2, 2010, Payne grieved the involuntary transfer. At the same time that
Payne was transferred to teach Industrial Technology classes at the Junior High School, Ronnie
Cockrell, the teacher who had been teaching Industrial Technology at the Junior High School
was involuntarily transferred to Chico High School and assigned to teach all the welding
classes. Cockrell held an Industrial Technology credential and a Physical Education
credential. Prior to his involuntary transfer to the CHS Ag Department, Cockrell had some
contact with the Friends of Agriculture and had taken his Junior High School classes to visit
the Henshaw Farm. Industrial Technology is primarily a "wood shop" class, and Payne had
minimal experience with the materials and equipment in the junior high school wood shop.
Likewise, Cockrell was similarly unfamiliar with the machinery in the CHS welding shop.
However, Cockrell did not grieve his involuntary reassignment from the junior to senior high
school.
4

During the 2010-2011 school year, the CHS Ag Department offered a course titled,
"Ag Earth Science." The curriculum for Ag Earth Science was designed to satisfy the State's
graduation requirement for physical science and had been vetted through the 2009-2010
Instructional Council. 2 Previously, earth science courses had been offered only through the
Science Department. The obvious result of adding a new course to the department was a
corresponding increase in the overall enrollment of the Ag Department. According to Payne,
the addition of Ag Earth Science was specifically intended to boost enrollment numbers in the
department to justify retention of a third Ag teacher. The first year that the course was offered
was 2010-2011. Enrollment in the course decreased slightly during the 2011-2012 school year.
Ultimately, Ag Earth Science was discontinued in the Agriculture Department and returned to
the Science Department for the 2013-2014 school year.
During the 2011-2012 school year, a sixth section of welding was added. As Cockrell
was the only welding teacher durirrg the 2011-2012 school year, he was compensated for the
additional teaching period. There was also a corresponding increase in the overall student
enrollment for the Ag Department as a result of the added welding class.
Even while Payne was teaching at the Junior High School; he kept tabs on the CHS Ag
Department and especially the welding classes. During this time, Payne learned from students
and their parents of an incident in which one of Cockrell' s students was shoved into a
sandblasting box by two other students during a welding class. Although the student was not
injured in the incident, there had been a very high danger of serious injury.
2 Chico High School has formed an Instructional Council made up of all the department
chairpersons. One of the tasks of the Instructional Council is to review new course offerings
and to determine proper placement within instructional departments. During the 2009-2010
school year, Payne served on the Instructional Council as the Ag Department Chair.
5

Between June 1, 2011 and October 19, 2011, seven days of arbitration were held before
Arbitrator Andria Knapp to resolve the grievance related to Payne's involuntary transfer. 3 On
March 16, 2012, Arbitrator Knapp issued her award. 4 In sustaining the grievance, Knapp
ordered the District to "return [Payne] to his prior position in the Ag Department at CHS,
effective with the start of the 2012-2013 school year." Knapp's decision is lengthy and
thorough. Although she ultimately found the District at fault for violating the contract, she
excoriated all parties for their collective unwillingness to engage in open, honest
communication with each other. She cited numerous missed opportunities when relatively
minor misunderstandings and miscommunications created hurt feelings that were allowed to
fester in silence, culminating in the District's decision to involuntarily transfer Payne out of the
department rather than resolve the underlyingtensions. In short, her award was neither sparing
nor complimentary to either party. Knapp retained jurisdiction pending implementation of the
remedy ordered.
In April 2012, the Union's attorney contacted the District's attorney to address a rumor
that Payne's 2012-2013 teaching assignment at CHS would not include the full complement of
welding classes offered at CHS for the 2012-2013 school year, but would instead include a
"new position" in the Department. The District did not respond to this inquiry.
During the Spring 2012 semester, Hanlon began preparation of the CHS master
calendar for the upcoming Fall 2012 semester. The master calendar contains all the major
3 During the seven-day arbitration hearing, one witness made disparaging remarks
about Superintendent Staley. This witness knew Staley in a personal rather than a professional
capacity. Ultimately, the Arbitrator did not make any mention of this witness's testimony in
her final Award. However, the subject matter of the witness's testimony was elicited at the
PERB Hearing as evidence of motive in Payne's 2012-2013 teaching assignment.
4 Although her decision is dated March 16, it may have taken a week or more for the
parties to receive their copies. One copy submitted by the Union bears a received date stamp
of March 23, while the District's witnesses could not remember the exact date they first
received a copy of the Award.
6

events that happen during the semester, as well as which courses will be offered, when, and by
whom they will be taught. Creation of the master calendar is primarily Hanlon' s responsibility
and begins with a pre-registration of the in-coming senior class in February to determine their
preference for courses in the coming year. Surveys are typically completed by the incoming
seniors in mid-April, with final responses from the remaining student body received by Hanlon
in mid-May. Once the pre-registration surveys have been completed by the entire student
body, Hanlon can determine which courses will be offered and who will teach them.
Thus, in Spring 2012, there was an increased overall enrollment in the Ag Department
such that Hanlon was faced with a staffing conundrum: should the District hire a fourth Ag
teacher for the coming school year and keep class sizes small, or should the District keep
staffing levels at three teachers in the Ag Department and add sections to each teacher's
schedule? The first option was problematic because having a fourth teacher could place the
District in the position of overstaffing the Ag Department. The second option was problematic
because in adding sections to the Ag Department teachers' schedules, the District ran a risk of
violating the collective bargaining agreement's rule that no teacher be assigned to teach greater
than the contractual maximum number of students per day. Shortly after receiving the
arbitration award, Hanlon, Feaster and Staley discussed the staffing issue for the CHS Ag
Department.
Both Hanlon and Feaster testified as to the District's rationale for the 2012-2013 class
assignments. By the time Hanlon learned of the arbitrator's decision in late March, the pre-
registration for seniors was well underway. Both the Advanced Welding course and the Ag
Econ courses were populated entirely by seniors. In addition, Advanced Welding was a two
hour block class. Not only did these peer courses need to be balanced against other seniors'
classes in the master schedule, but the two hour block of Advanced Welding needed to be
placed on t4e master schedule before other classes, as moving a block course after other
7

classes had been set on the master schedule was highly disruptive to the scheduling process.
Hanlon recalled that there had_ been some reason why Advanced Welding was scheduled after
lunch, though he could not recall the specific reason. In any event, Hanlon conceded that there
was nothing inherent in the Advanced Welding course that required that it be set in the
afternoon; it was an issue particular to this year's course offerings that necessitated placing the
class on the afternoon schedule. Once peer classes and block classes were set in place, other
classes were placed on the master schedule.
When determining which teacher would be assigned to teach each class, Hanlon
discovered that he was hampered by the fact that Cockrell did not have an Agriculture
credential like the other teachers in the Ag Department. The Ag Department is a department of
elective~. Some of the electives like Environmental Horticulture, Ag Biology, and Ag
Econ/Government satisfy State mandated graduation requirements but other Ag Department
courses like Ag Welding do not correlate to any State mandated graduation requirements.
While Cockrell's Industrial Technology credential provided the necessary qualifications to
teach the welding courses offered at CHS, Cockrell's Industrial Technology and PE credentials
did not permit him to teach Ag Econ/Government and many of the other Ag Department
classes. There was also a restriction on the total number of welding classes that could be
scheduled in a given day, considering that there was only one welding shop. Thus, there could
be no more than six hours of welding taught in any given day. Payne, on the other hand, was
able to teach a wide variety of agriculture-based classes given his Agriculture credential and
other certifications.
Ultimately, Hanlon, Feaster and Staley decided to slightly overstaff the department
rather than slightly understaff the department. Though the District claims that the possibility
of staffing the Ag Department with four teachers instead of three was discussed before the
Arbitration Award was issued, Hanlon acknowledges that a final decision was not reached until
8

after the Arbitration Award had been issued in March 2012. Hanlon concedes that the manner
in which he had completed the master calendar for the Fall 2012 semester was a departure from
how he had completed the master calendar in prior years-he would not ordinarily have
included Staley and Feaster in the decision to such a degree as he did this year. This year
presented a new concern: the arbitration award was issued several days after the statutory
deadline for notifying school district employees of a possible layoff, such that the only option
for reducing the Ag Department from four to three teachers would have been to involuntarily
transfer one of the other teachers out of the department. The obvious choice would have been
to transfer Cockrell out of the department. The possibility of transferring Cockrell back to the
junior high school was rejected because it would have created disruptions beyond Chico High
School. Transferring Cockrell to the Physical Education (P.E.) Department at CHS was
rejected because the P.E. Department was in need of a female teacher to monitor the girls'
locker room and Cockrell could not fill that need. Ultimately, Hanlon, Feaster and Staley
determined that keeping Cockrell in the Ag Department at CHS was the least disruptive option .
available to them for the 2012-2013 school year.
On May 30, 2012, the Union's attorney sent a letter to the District's attorney stating
that if Payne were not returned to the same class schedule he had maintained prior ~o the
involuntary transfer, the Union would seek enforcement of the Arbitrator's decision through
the superior court. OnJune 4, the District responded to the May 30 letter, stating that
compliance with the Arbitrator's decision was achieved by reassigning Payne to the
Agriculture Department at CHS; compliance with the award did not require that Payne be
reassigned to the same class schedule he had taught before the involuntary transfer.
In early June 2012, Hanlon convened a meeting with all four CHS Ag Department
teachers-Payne, Cockrell, Mendez and Zweigle. The meeting was called for the purpose of
distributing the extra assignments associated with the Ag Department. Hanlon's recollection is
9

that at that time, the master calendar had been completed and the teachers all learned what their
class assignments would be for the Fall 2012 semester. According to Hanlon, after discussing
the assignments and making some minor adjustments, consensus was reached among the
teachers as to the equitable distribution of extra duties. Payne testified that when he learned
that he wouldn't be the only welding teacher at the high school, he believed this to be an
attempt by the District to circumvent the arbitrator's decision.
On June 29, 2012, the Union sought clarification from Arbitrator Knapp whether the
District's intention to assign Payne to "two minor welding classes and three Ag classes that he
has never taught before" would violate the award. On July 10, 2012, Knapp responded that the
District's proposed assignment for the 2012-2013 school year would achieve compliance with
her award. Knapp went on to state:
The Award that ordered Mr. Payne's return to the Agriculture
Department did not guarantee that he would be assigned to teach
exactly the same courses as he did before the transfer, nor could it
have done: that would have been tantamount to ordering the
District to offer those courses regardless of whether there was an
educational need for them. Nor did the award order that the
individual who had replaced Mr. Payne be returned to his original
school, nor-again-would it have been appropriate for me to
make such an order. The mix of faculty in a subject area will
determine who is assigned to teach the various courses offered in
that area. Once the District has made a determination that it will
offer certain courses in the Ag Department for the next academic
year, it then must decide which Ag teachers will be assigned to
teach each individual course. As a highly experienced Ag
educator, Mr. Payne has the capability to teach a wide variety of
Ag courses-more, if memory serves, than the individual who
was assigned to replace him, who did not (at the time of the
arbitration hearing) have significant Ag teaching experience ....
Teachers suffer the consequences [of their rapidly diminishing
budgets] in myriad ways. They have no guarantees that they will
be teaching the same courses that they have in the past, and Mr.
Payne is no different. The Award in this case ordered him
returned to the Ag Department at Chico High, but did not
guarantee, nor could it that he would be assigned to teach the
same courses that he had in the past. 	·
10

On July 19, 2012, Union Representative Kevin Moretti sent an e-mail to Hanlon raising
concerns about the extra duty assignments for Payne and Cockrell. In response to Moretti' s
e-mail, on July 20, 2012, Hanlon sent a lengthy response containing the following statements:
Kevin Payne fought to come back to CHS and since he won the
arbitration regarding the transfer he has gone to you about his
class assignment and now the expectations of his extra duties.
His reluctance to actually do the job he fought so hard to get back
is becoming unacceptable.
When Hanlon was asked about the June 6 e-mail, he stated that he was frustrated at the
time that he sent the e-mail; that the parties had "just" gone through arbitration and he was
already hearing that Payne was unhappy about his assignment.
On August 3, 2012, the District published the Ag Department class assignment for
2012-2013. While the assignments for teachers Mendez and Zweigle were largely unchanged
from the previous year, Payne's class assignment for the 2012-2013 school year was very
different from the classes he had been accustomed to teaching prior to the involuntary transfer.
Instead of teaching all the Ag Welding courses at CHS, Payne was only teaching two
beginning Welding classes and was assigned to teach two classes of "Ag Econ/Gov" and one
class of "Intro to Ag." Ronnie Cockrell, the teacher who had been teaching all of the Ag
Welding classes in Payne's absence, was scheduled to teach two beginning Welding classes, a
two-hour block class of Advanced Welding, and one after-school class titled "Ag Marketing."
In prior years, CHS had offered both Ag Econ/Gov and Intro to Ag, though Payne had never
taught them. Although it was placed on the schedule for the first time as a class, AG
Marketing was intended to encompass all the work associated with the Henshaw Farm.
During the 2012-2013 school year, Payne had occasional opportunities to observe
Cockrell's teaching style. Payne's observation of Cockrell, combined with the rumors heard
from students and teachers in previous years led him to the conclusion that Cockrell was a less
effective welding teacher than Payne was. While Hanlon acknowledged that Payne was the
11

more technically skilled welding teacher, he also stated that Cockrell was a competent welding
teacher whose teaching skills had shown improvement over the course of the two years
Cockrell had been teaching the welding classes.
On June 6, 2013, just before the hearing in this case, Hanlon sent an e-mail message to
all the teachers in the Ag Department stating:
Ag Teachers .. .it looks like there is a possibility that we may be
overstaffed next year in the Ag Department. I want to make you
aware of this situation so that you can explore the possibilities for
openings around the district. If you are interested in transferring
to another site for 2013-2014 please let me know.
Neither Payne nor Cockrell asserted any interest in transferring from CHS for the 2013-2014
school year.
ISSUE
Whether Payne's class assignment in the 2012-2013 school year was in retaliation for
his August 2, 2010 grievance.
POSITIONS OF THE PARTIES
The Union argues that the Ag Department at CHS had a decades long practice of
assigning one teacher to teach all the welding courses; one teacher to teach all the plant science
courses; and one teacher to teach all the animal science courses. Even after Payne was
transferred out of the Ag Department, this practice was continued, merely substituting Cockrell
for Payne. However, the Union argues that after the arbitration award, the District deliberately
manipulated the.attendance numbers and the master calendar so that Payne would not be
returned to teaching all welding classes. According to the Union, this was done in retaliation
for the fact that Payne enforced his collective bargaining right not to be involuntarily
transferred and.in the process, embarrassed the superintendent by exposing her personal life to
public scrutiny. Instead of manufacturing reasons for keeping four teachers in the Ag
Department, the District should have undone the unlawful involuntary transfer completely by
12

removing Cockrell from the Ag Department and assigning Payne to teach the same welding
classes he had always taught. The timing of the arbitrator's award in late March did not
preclude the District from assigning Payne to teach all welding classes.
The District argues that enrollment levels in the Ag Department had been trending
upward in the 2010-2011 and 2011-2012 school years. Toward the end of the 2011-2012
school year, the District was already considering hiring a fourth Ag Department teacher. The
arbitrator's award simply coincided with the creation of the 2012-2013 master calendar in a
way that made it possible to absorb Payne back into the department while retaining Cockrell
and expanding the course selections in the department to include business courses. The
assignment of classes within the now four-person department was determined based on the
needs of the department as a whole, and not with regard to any one teacher. The District was
not required by the arbitration decision to assign Payne to teach any particular classes and its
class assignment was in no way retaliatory for Payne's enforcement of contract rights.
CONCLUSIONS OF LAW
The Association bears the burden of proving the allegations of the complaint by a
preponderance of the evidence. (California State University (San Francisco) (1986) PERB
Decision No. 559-H; PERB Reg. 32178.) Preponderance of the evidence has been defined by
the courts as "evidence that has more convincing force than that opposed to it." (Glage v.
Hawes Firearms Co. (1990) 226 Cal.App.3d 314,324 (Glage).) Preponderance of the
evidence is usually defined in terms of the probability of the truth, or such evidence which,
when weighed against opposing evidence, has the greater probability of truth. (California
Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133.) If the
evidence is so evenly balanced that one is unable to say that the evidence on either side
preponderates, the finding on that issue must be against the party who has the burden of
proving it. (Glage at p. 324.)
13

To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5(a), the charging party must show that: (1) the employee
exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights;
(3) the employer took adverse action against the employee; and (4) the employer took the
action because of the exercise of those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato).)
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
cursory investigation of the employee's misconduct (City of Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action ( Oakland
Unified School District (2003) PERB Decision No. 1529), or the offering of exaggerated,
vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision No.
786); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
14

unlawful motive (North Sacramento School District, supra, PERB Decision No. 264; Novato,
supra, PERB Decision No. 210).
Once the Charging Party demonstrates that the employer's actions were motivated, at
least in part, by union animus, the burden shifts to the employer to prove that it would have
taken the same action even in the absence of the protected activity. (Mountain Empire Unified
School District (1998) PERB Decision No. 1298; Healdsburg Union· High School District
(1997) PERB Decision No. 1185.)
The District does not dispute that Payne engaged in protected activity by filing a
grievance and pursuing it through arbitration. Clearly, the District's knowledge of the
protected activity is not in dispute. The District does not dispute that it assigned Payne to
teach classes for the 2012-2013 school year that differed from the class assignment he had
been teaching prior to his involuntary transfer. However, the District maintains that its
decision to assign Payne to different classes was neither adverse nor in retaliation for his
protected activity.
Was the Decision To Assign Payne to Teach Non-Welding Classes Adverse?
In determining whether an adverse action is established, the board uses an objective test
and will not rely upon the subjective reactions of the employees. (Palo Verde Unified School
District (1988) PERB Decision No. 689.) In a later decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's actions to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have had an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
Indisputably, Payne believes that the District's decision to assign him to teach non-
welding courses was adverse. More importantly to Payne, he was assigned fewer welding
15

courses than Cockrell despite being the more technically skilled welder, was only assigned to
teach beginning level welding classes and was denied the two-hour block of Advanced
Welding. Payne seemed to take particular offense at this disparity-the classes he most sought
to teach were assigned to a teacher with less technical experience and who, in his opinion, had
demonstrated poor classroom control over his students.
In most cases, a change in teaching assignment will not be deemed an adverse act
unless the Charging Party can demonstrate that it caused an increase in the employee's
workload or work hours. (Compton Unified School District (2003) PERB Decision No. 1518.)
There are several ways to parse Payne's class assignment for 2012-2013. The Union seems to
argue that there was a history of having only one welding instructor at CHS and that teaching
the advanced welding classes in particular conferred on Payne a degree of professional
prestige. Payne appears to view his 2012-2013 class assignment as a demotion. Similar
arguments regarding a loss of prestige associated with a particular assignment were argued in
Palo Verde Unified School District (1988) PERB Decision No. 689, and rejected by the Board.
In addition to the above, however, The Union points out that Payne was assigned more
"prep" classes-that is, classes that require separate planning and curriculums-than he had
ever been assigned before. Although all the classes assigned to him were within the subject
matter of his credential, Payne was assigned to teach courses in 2012-2013 that he had never
taught before and that would require him to spend time planning lessons and studying
curriculum. This assignment undoubtedly created more work for Payne. This is a quantifiable
measure that objectively demonstrates less favorable working conditions. Furthe~, Hanlon
acknowledges that the assignment of more preps was more onerous, and he made a deliberate
decision to assign Payne, as the more experienced teacher, the more difficult schedule of
classes. Under these circumstances, it appears that the 2012-2013 class assignment to Payne,
as compared to his pre-transfer schedule, was objectively adverse.
16

Was Payne's 2012-2013	'	
Class Assignment-
Motivated by Union Animus?
Charging Party characterizes the District's failure to assign him to teach all welding
courses as a retaliatory work assignment, citing Regents of the University of California (1998)
PERB Decision No. 1263-H and RGC (USA) Mineral Sands, Inc. v. NLRB (4th Cir. 2002) 281
F.3d 442. In RGC (USA) Mineral Sands, Inc. v. NLRB, the Fourth Circuit Court of Appeals
held that, even if the employer has authority under the contract to take the disputed action, it
may not "exercise contractual rights to punish employees for protected activity." (Id. at p.
449.) PERB adopted this principle in Novato Unified School District, supra, PERB Decision
No. 210, holding that an employer's prerogative is not absolute and its exercise cannot be
protected where the motive for its conduct is unlawful. Thus, even assuming the District had
authority to exercise its discretion to assign Payne any subject matter within his credential, if it
acted from an unlawful motive, its actions would be deemed an unfair practice in violation of
EERA.
According to the Union, the evidence establishes a number of nexus factors connecting
the decision to assign Payne non-welding courses and Payne's enforcement of contract rights
through the arbitration. First, the Union asserts that the District manipulated the attendance
numbers in the Ag Department to appear higher than they were, in order to justify retaining a
fourth Ag teacher. The Union's assertions were not supported by any evidence at the hearing.
Even if true, the origin of this alleged scheme pre-dates Payne's protected activity. The
decision to add Ag Earth Science to the Ag Department, which inflated the attendance numbers
in the department, was made while Payne was still the Department Chair. The course was
offered during the years that Payne was assigned to the junior high school, and ultimately
discontinued after Payne was reinstated to the Ag Department. Thus, it cannot be said that the
addition of Ag Earth Science was in any way motivated by Payne's protected conduct.
(Santa Clarita Community College District (1996) PERB Decision No. 1178.)
17

Not only did the decision to offer Ag Earth Science predate Payne's protected activity,
but there was testimony from both Payne and Hanlon that in previous years, fluctuations in
enrollment in the Ag Department had caused the District to consider staffing changes. In other
words, when the same courses were offered over and over again, enrollment in the department
trended downward. When new courses were offered in the department, enrollment trended
upward. Rather than being part of some nefarious scheme to manipulate the class assignment
for the 2012-2013 school year, the introduction and elimination of Ag Earth Science appears to
have been a failed experiment that roughly coincided with the events giving rise to this charge.
There are no facts demonstrating that any of these decisions involving the Ag Department
curriculum were motivated by union animus in general or Payne's protected conduct in
particular.
Next, the Union asserts that Payne was subjected to less favorable working conditions
than any of the other Ag Department teachers when he was assigned a greater number of prep
courses than any other teacher. In addition to the fact that Payne's 2012-2013 assignment was
objectively more onerous than his pre-transfer assignment, by virtue of a greater number of
prep classes, no other Ag teacher was assigned to teach three prep classes in the Fall 2012
semester, arguably making Payne's assignment more onerous than that of any of his
coworkers. While this is an accurate assessment of Payne's 2012-2013 schedule, it presents
only part of the overall picture. As noted above, Cockrell was not credentialed to teach several
courses that were offered in the Ag Department that satisfied the graduation requirements.
Like Payne, both Zweigle and Mendez held credentials that permitted them to teach courses
that would satisfy graduation requirements. And also like Payne, both Zweigle and Mendez
were assigned to teach classes outside of their preferred specialty: Zweigle was assigned to
teach two Ag Earth Science classes in addition to three animal science classes; Mendez was
assigned to teach one Ag Earth Science class in addition to four plant science classes. Thus,
18

both Zweigle and Mendez each had multiple prep classes as well as classes outside the field of
their specialty. Payne's argument that he had a less desirable assignment is a matter of
degrees.
The Union argues that because Payne had never taught anything other than welding, the
assignment of any new courses was especially onerous for him as compared to Zweigle and
Mendez who both had a history of teaching multiple different prep classes. But Payne and
Cockrell could not simply swap assignments in order for Payne to have more welding classes,
as that would leave Cockrell with a teaching assignment outside of his credential. Presumably,
Payne would not wish to give up his two welding classes in order to reduce the number of prep
classes in his schedule; nor would it have reduced the number of Payne's prep classes if he had
swapped his afternoon classes with those of either Zweigle or Mendez. In short, given the
roster of classes that were offered in 2012-2013, the schedule would not permit Payne to teach
fewer preps and still work a full schedule of classes. This circumstance was not easily
manipulated either for or against Payne's preference-there were a certain number of courses
that needed to be taught and each teacher holding an Ag credential was assigned to teach
multiple prep classes.
According to the District, it had legitimate business reasons for the decision to assign
more prep courses to Payne than to another teacher. As noted above, the District was
maximally restricted in the number of welding classes that could be offered in any given day.
Additionally, the District was restricted by Cockrell's credential in the courses that it could
assign him to teach. The Union intimates that Cockrell's credential was much broader than the
District presented it to be, and that the District could easily have scheduled Cockrell to teach
courses that didn't conflict with Payne's preferred assignments. However, there was testimony
regarding the process for developing new courses through the Instructional Council. New
courses had to be presented and vetted through the Industrial Council prior to being placed on
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the master calendar. Furthermore, logic dictates that this process needed to occur prior to or
immediately after the beginning of the prior year's Spring semester if students were to be able
to select the new course for the upcoming year. By the time the arbitrator's award issued in
March 2012, it would have been too late to develop a new class or classes that fell within the
subject matter of Cockrell's Industrial Technology credential yet didn't conflict with Payne's
preferred assignment and use of the campus's only welding shop, in time to approve the
curriculum and assign students to the class.
The Union also asserts that the grievance hearing elicited testimony of a personal nature
that could be embarrassing to Superintendent Staley. Staley was involved in the decision to
overstaff the Ag Department for 2012-2013. According to the Union, Staley's lingering
resentment against Payne for exercising his contractual rights at the arbitration motivated her
decision to overstaff the Ag Department in 2012-2013. Staley did not testify, and any
supposition that she was or would have been embarrassed or influenced by testimony at the
arbitration was entirely speculative. At any rate, there is scant evidence regarding what, if any,
influence Staley exerted over the final decision to overstaff the department. I decline to give
weight to such insubstantial and intentionally provocative assertions. Notably, the arbitrator
declined to make any mention of the assertedly damaging testimony in her award.
Interlaced throughout the Union's whole argument is the suggestion that one or more
members of the Friends of Agriculture were dictating to the District that Payne be removed
from (or forced out of) the Ag Department. Before the Friends of Agriculture helped to
establish a student farm, Payne had a happy working relationship with coworkers and
administrators at CHS. It was only after Payne resisted attempts by the Friends of Agriculture
to dictate curriculum through its financial influence over the District that administrators,
coworkers and "community members" allegedly had difficulties with Payne. Payne even
testified that he didn't mind working on the student farm "when [he] was able to have any type
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of input in how the farm was developed or ran [sic]." Whatever influence, proper or improper,
the Friends of Agriculture had or did not have over Hanlon, Staley, or any other District
administrator, Charging Party has not articulated how any influence exerted by the Friends of
Agriculture was motivated by Union animus that would constitute a violation of the EERA.
There were undoubtedly other ways to plan and execute the school calendar for 2012-
2013 that would have placed Payne in exactly the same class schedule he had maintained prior
to the involuntary transfer. For example, the District could have transferred Cockrell back to
the Junior High School and shifted the difficulty of the last-minute course assignments to that
campus rather than the CHS Ag Department. The arbitration award did not require that
outcome, however, and permitted the District to exercise discretion over how to return Payne
to the Ag Department. When all the circumstances surrounding this case are viewed in their
totality, Charging Party has failed to establish by a preponderance of the evidence that. the
decision to assign him classes other than welding in the 2012-2013 school year was motivated
by union animus.
Each of the scheduling decisions made by the District had a carryover effect on the
subsequent scheduling decisions. At the root of these decisions was the District's decision to
retain all four teachers in the Ag Department. Clearly, the District would not have been in this
position had it not committed the earlier contract violation in which it transferred one of the
few teachers in the District holding an Agriculture credential out of the District's only Ag
Department. As a result of its earlier contract vio,lation, it cannot be said that the District's
decisions with regard to course offerings and schedules in 2012-2013 were entirely unrelated
to Payne's protected activity. Ultimately, however, I cannot find that the decision to retain
four Ag teachers was motivated by union animus. Once the decision to retain all four teachers
had been made, the creation of the master calendar and assignment of classes was dictated by
many factors bearing no relation to Payne's exercise of rights under EERA. Even assuming
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Payne's protected conduct had some influence over the decision to retain four Ag Department
teachers, to assign welding classes to Cockrell, or to assign three prep classes to Payne, the
facts presented establish that the District would have taken the same action in the absence of
Payne's protected activity.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case number SA-CE-2658-E,
Chico Unified Teachers Association v. Chico Unified School District, are hereby dismissed.
Right of Appeal
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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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, § 32300.)
A document is considered "filed" when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the close of
business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirements of PERB Regulation 32135(d), provided the
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filing party also places the original, together with the required number of copies and proof of service,
in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090, 32091 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, §§ 32300, 32305, 32140, and
32135, subd. (c).)
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