Oakland Unified School District (PERB 1529E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OAKLAND EDUCATION ASSOCIATION,
Charging Party,
V.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-2283-E
PERB Decision No. 1529
June 20, 2003
Appearance: Beeson, Tayer & Bodine by Thomas Dubberke, Attorney, for Oakland Education
Association.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Oakland Education Association (OEA) of a Board agent's
partial dismissal of their unfair practice charge. The charge, as amended, alleged that the
Oakland Unified School District (District)	' /
violated the Educational Emnlovment	J ,	
Relations Act
(BERA) 1 by retaliating and discriminating against teacher Ron Robinson (Robinson) for
engaging in protected activity and for interfering with his rights under BERA. OEA alleged
that this conduct constituted a violation of BERA section 3543.S(a).
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2EERA section 3543.S(a) provides:
It shall be unlawful for a public school employer to do any of the
following:

Upon review of the unfair practice charge, amended charge, the Board agent's warning
and partial dismissal letters, the complaint, and OEA's appeal, the Board reverses the Board
agent's partial dismissal and remands that portion of the charge to the General Counsel's office
for issuance of an amended complaint, consistent with the discussion below.
BACKGROUND
The following comprises a summary of OEA's charge, as amended. Beginning in fall
1999, Robinson was employed as a temporary teacher with an emergency permit at
McClymonds High School (McClymonds). During the 1999-2000 school year, Robinson
became a faculty member of the II/USP Whole School Reform Committee, and from that time
through the end of his tenure at McClymonds, he served on the Climate subcommittee of the
II/USP Whole School Reform Committee. The Climate Committee was comprised of ten
members and was intended to improve the overall climate for McClymonds teachers, students
and administrators. From the 1999-2000 school year through the end of his tenure, Robinson
also served as a faculty member of the McClymonds' Leadership Team. Teacher members of
both groups regularly presented concerns involving terms and conditions of employment,
teacher morale and student discipline.
During the 1999-2000 school year, there appeared to be conflict between committee
members and McClymonds Principal Lynn Dodd (Dodd) on such issues as student discipline,
tardiness policies and teacher morale. Robinson became a particularly strong advocate on
(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 ofrights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
2

behalf
of
the teachers. Robinson alleges that in early fall 2000, he was elected chair to the
IVUSP Whole School Reform Committee and the Climate Committees. During the spring
of
2001, there was a specific recommendation from the Climate Committee and Leadership Team
regarding the institution
of
an intervention room as part
of
a student disciplinary program,
which would be staffed through a grant from the Alameda County Probation Department.
Dodd vetoed the idea and would not allow it to be presented before the Leadership Team for
action. At a fall 2000 Leadership Team meeting, Robinson objected to Dodd's
characterization that student disciplinary problems were caused
by
teacher "classroom
management." Robinson stated that Dodd' s statements were responsible for low teacher
morale. At committee meetings, Robinson also presented a proposal for teachers to evaluate
administrators in order to improve morale. According to OEA, Dodd did not receive this
proposal kindly.
In April 2001, Robinson was injured pursuing a student involved in an altercation. An
administrator did not appear on the scene until 20 minutes after he was notified by other
teachers. On April 27, 2001, Robinson wrote a memo complaining about the poor security
with regard to this and other incidents
of
student violence. This memo was copied to OEA
Representative, Bruce Colwell (Colwell).
In early June 2001, Dodd called Robinson to meet regarding the April 27 memo. In this
conversation, Dodd asked why Robinson copied the letter to OEA and whether he was really
committed to McClymonds. Also during the conversation, out
of
apparent concern for his job,
Robinson asked Dodd
if
she was committed to keeping him at McClymonds. Dodd replied
that she would commit to rehiring Robinson for the following school year.
3

In mid-June 2001, the District sent Robinson a letter that he would not be rehired for
the 2001-2002 school year. Robinson informed Sue Woehrle (Woehrle), Dodd's immediate
supervisor, that Dodd had committed to his rehire. Robinson stated that he learned that Dodd
was interviewing prospective candidates for his position. Robinson asked Woehrle to write a
letter on his behalf and she refused. Consequently, Robinson wrote to District Superintendent
Dennis Chaconas (Chaconas) and separately to School Board member Harold Pendergrass
regarding his employment with the District and copied the latter document to OEA. In August
2001, Robinson sent another letter to Chaconas with a copy to OEA. Woehrle subsequently
called him to meet with Dodd and her. When Robinson asked to bring an OEA representative
to the meeting, Woehrle responded:
Damn it; to hell with the Union! 	I'm sick of the union; I'm sick
of teachers always thinking they need to have representation.
You should be man enough to sit down with us without union
representation. Either you meet with us or you don't, but if you
want the contract you have to meet with us.
In mid-August 2001, Robinson met with Woehrle and Dodd without a union
representative. At this meeting Woehrle and Dodd complained to Robinson about his bringing
outsiders into internal school business. Subsequently, however, Robinson received a
probationary contract for the 2001-2002 school year.
During the spring, the Climate Committee and Leadership Team identified priorities for
improving teacher morale, which were recorded in the meeting minutes. The minutes were to
be presented at a faculty retreat in August 2001. Before the retreat, Dodd told Robinson that
he was not to distribute or discuss the minutes at the retreat.
In December 2001, in order to obtain additional monies for McClymonds, Robinson
offered to start a faculty council. Dodd discouraged his participation because he ran "enough
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committees" and further stated that he should give "one of the women a shot." According to
OEA, there was no faculty council established at McClymonds until March 2002, when
Robinson drafted instructions for elections.
In December 2001, Vice Principal Norman Thompson (Thompson) observed
Robinson's classroom. In January 2002, he issued a written evaluation of Robinson, which
stated in part:
Teacher is making every effort to make standard base [sic]
learning/teaching the heart of the course.
In January 2002, Robinson handed out a lesson plan to students, which contained two
essays: an essay by Frederick Douglas (Douglas), who wrote about teaching himself to read,
and a "provocative prompt" that argued that students today have no interest in reading.
On January 16, Robinson was called by Thompson and asked to meet with Thompson and
Dodd regarding a memorandum sent to parents, that the matter was serious, and that Robinson
should bring a union representative. As the site representative was not available, he contacted
Colwell, who could meet the following day. Dodd expressed anger at having to wait and
attempted to discourage Robinson from bringing his representative. Dodd ultimately
consented to wait until Colwell could attend. During the January 17, meeting, Robinson
learned that a parent had received a copy of the provocative prompt, but not the Douglas essay,
and believed the essay to be insulting to students. Robinson felt that his explanation of the
purpose of the essay to Dodd and Thompson resolved the matter.
On January 31, 2002, Robinson chaired and took minutes of a Climate Committee
meeting. Robinson submitted the minutes to Dodd by memorandum dated February 1, 2002.
The minutes stated that lack of administrative support was responsible for low morale. 	The
memo also mentioned that teachers and students were upset about the school's direction since
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the transfer of another activist teacher, Mark Rader (Rader), in October 2001. Rader was
transferred allegedly because he lacked a CLADT3 certificate but was otherwise fully
credentialed; yet, he was replaced by teachers who also lacked CLADT certificates.
In late February or early March 2002, Robinson ran for the OEA executive board. He
posted flyers in McClymond's main office, visible to administrators. On March 15, 2002,
Robinson received a notice of non-reelection from the District for the 2002-2003 school year.
In a March 25 meeting with Dodd, Thompson and the OEA site representative, Dodd stated
that he was not teaching to state content standards and not sticking to text. Robinson
responded that this contradicted Thompson's January 2002 evaluation. He had not received
any notice prior to March 25 that there was a problem with his performance.
In April 2002, Thompson issued a memo to Robinson regarding Robinson showing his
students the R-rated movie, "The Hurricane," without obtaining parent consent. Robinson
alleges that he had already discussed showing this movie to his class with Thompson who had
not seemed concerned. According to Robinson, other teachers had shown R-rated movies
without first obtaining parental consent and without repercussion.
On May 13, Robinson sent two memoranda to Dodd regarding unresolved Climate
Committee and Leadership Team issues involving teacher morale and teacher
recommendations. One of the memos discussed the benefits of a program for teacher
evaluation of administrators. By letter dated May 17, the District informed Robinson that he
was being placed on administrative leave with pay effective May 20 to allow the District to
investigate allegations of unprofessional conduct at McClymonds. A District administrator
later informed Robinson that the reason for the administrative leave was Robinson's behavior
3The charge did not define this acronym.
6

at the May 14 Faculty Council meeting. Robinson remained on administrative leave status
through the end of the school year. He has received no further information from the District
regarding the outcome of its investigation.
OEA alleged that at the May 14 meeting, Robinson had a heated exchange with
Assistant Principal Tami Bell (Bell), at which Bell later said to Robinson, "We can take this
outside and deal with this privately if you'd like." Another teacher who attended the
Leadership Team meeting has confirmed that Bell made this statement. Bell was not
disciplined for his conduct.
BOARD AGENT'S PARTIAL DISMISSAL
The Board agent issued a complaint alleging that the District violated EERA section
3543.S(a) and (b) by issuing Robinson a notice of non-reelection because of his exercise of
protected rights, including service on school-wide leadership committees and presentation of
contractual and work-related issues to the District, and because of the District's denial of
OEA's right to represent employees, respectively.
However, the Board agent found that the District did not violate EERA by placing
Robinson on administrative leave. In the warning and dismissal letters, the Board agent gives
much credence to allegations obtained from the District.4
The partial dismissal describes the District's reasoning for placing Robinson on
Administrative Leave with pay on May 17. According to the Board agent, at the May 14
4The District formally responded to the amended charge for the first time on
November 27, 2002, the same date OEA's appeal was filed with the Board. The dismissal had
already been issued on November 6, 2002. The District's response contained no explanation
for its lateness. In addition, there is no evidence that this response was served on OEA or the
Board, other than a copy to OEA's legal counsel, by notation on the November 27 letter. In
light of these facts, the Board shall not consider this document in evaluating OEA's appeal.
7

Faculty Council meeting, Robinson distributed a letter, which stated that some faculty
members were afraid to speak because of retaliation. He asked the Council members to sign
the letter but they refused. 	On May 15, Dodd received a letter from a Faculty Council member
who was present at the May 14 meeting, which stated that Robinson seemed irrational and
delusional, and wanted to take his frustration out on the McClymonds family. That individual
believed Dodd to be the target of Robinson's anger. Dodd later received a letter from another
Faculty Council member, which said essentially the same thing. The second letter was quoted
in the warning and partial dismissal letters. The authors of these letters are not identified.
The Board agent concluded that based on the facts in the original and amended charge,
the charge failed to demonstrate the nexus between Robinson's administrative leave and his
protected activity, as required by the test in Novato Unified School District (1982) PERB
Decision No. 210 (Novato). She found that the District appeared to have followed proper
disciplinary procedures and had provided substantial evidence regarding its decision to place
Robinson on administrative leave, citing the two letters received by the District, both of which
indicated concern for Dodd's safety. The Board agent notes that OEA does not refute these
letters in the amended charge and so fails to provide additional evidence of nexus.5
DISCUSSION
OEA appeals the Board agent's determination that OEA did not state a prima facie case
of retaliation when the District placed Robinson on administrative leave because of alleged
protected conduct involving Robinson's two May 13 memoranda to Dodd.6 We hold that OEA
5The claim for interference was not addressed in the warning or dismissal letters.
6OEA did not appeal the interference claim. The Board therefore will not address this
issue.
8

stated a prima facie case for retaliation for the reasons discussed below. The Board will also
address the new evidence presented in OEA's appeal.
To demonstrate a violation of EERA section 3543.S(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; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. (Novato; Carlsbad Unified School
District (1979) PERB Decision No. 89.)
First, the Board has held that employees' complaints to administrators regarding
working conditions are protected under EERA. (See e.g., Los Angeles Unified School District
(1999) PERB Decision No. 1338, proposed dee., at p. 7.) Robinson's May 13 memoranda to
Dodd complaining about McClymonds' working environment therefore falls under this
category of protected conduct. Second, Dodd, the principal, clearly had knowledge of
Robinson's protected conduct. Third, the District's imposition of involuntary leave is a form
of adverse action. (See, e.g., California State University, Long Beach (1987) PERB Decision
No. 641-H; California State University, Hayward (1991) PERB Decision No. 869-H.)
The key issue on appeal is whether OEA demonstrated sufficient nexus between the
adverse action and the protected conduct to state a prima facie case of retaliation. To support a
prirna facie finding of "nexus" between the adverse action and the protected conduct, OEA
must allege that the timing of the employer's adverse action occurred in close temporal
proximity to the employee's protected conduct (North Sacramento School District (1982)
PERB Decision No. 264 (No. Sacramento)), plus facts establishing one or more of the
following additional factors. 	(Moreland Elementary School District (1982) PERB
9

Decision No. 227.) These additional factors include: (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; (5) the employer's failure to
offer the employee justification at the time it took action or the offering of exaggerated, vague,
or ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; No. Sacramento.)
We find that OEA alleged sufficient facts to show the "nexus" required for a prima
facie case for retaliation. First, the adverse action occurred in close temporal proximity to
Robinson's protected conduct. Robinson sent Dodd two memoranda regarding teacher
concerns on May 13; and on May 17, Robinson was placed on administrative leave. Second,
the amended charge alleges that Robinson was treated disparately from Assistant Principal
Bell, who engaged in similar conduct during a heated argument with Robinson at the May 14
Faculty Council meeting. Additionally, Bell allegedly threatened Robinson. However,
Robinson was placed on administrative leave and Bell was not. Third, according to OEA, the
District did not inform Robinson of the reason for administrative leave until a later time.
Fourth, as of the date OEA filed its amended charge in October 2002, the District had not
provided Robinson with a report on the outcome of its investigation regarding Robinson's
alleged unprofessional conduct.

As a result, we disagree with the Board agent's analysis regarding "nexus." In the
dismissal, the factors required for a showing of "nexus" appear to be confused with facts
comprising the District's affirmative defense to a charge of retaliation. The Board agent gave
credence to the District's position in finding that Robinson was placed on administrative leave
because two unnamed Faculty Council members wrote letters to Dodd, which stated that they
perceived Robinson to be a threat to Dodd. Likewise, the Board agent also found that the
District followed the appropriate procedures in placing Robinson on leave.7 In the dismissal,
the Board agent stated:
The District appears to have followed proper disciplinary
procedures and has provided substantial evidence regarding its
decision to place Mr. Robinson on administrative leave. As noted
above, the District received letters from employees stating their
concern for the Principal' s safety. Charging Party has not
claimed the letters are inaccurate or false, and thus the charge
fails to provide any additional evidence of nexus. [At p. 5.]
However, in retaliation cases, only once the inference of unlawful motivation is alleged,
does the burden shift to the employer to establish that it would have taken the action regardless
of the employee's protected conduct. (Novato, at p. 14; State of California (Department of
Industrial Relations) (1998) PERB Decision No. 1299-S, at pp. 11-12; Scotts Valley Union
Elementary School District (1994) PERB Decision No. 1052, at p. 17.) The District's
allegations thus comprise its defense to OEA's allegations of nexus, information which should
be considered during the Board's hearing process. (Novato;8 Golden Plains Unified School
7The District's procedures for placing Robinson on leave are not described in the file.
8In Novato at pages 13-14, the Board explained the requirements for establishing a
prima facie violation of EERA section 3543.5(a) and the resulting shift of burden to the
employer to show that it would have imposed the adverse action regardless of the employee's
protected conduct. On page 14, the Board stated:
11

District (2002) PERB Decision No. 1489.) Since we have already determined that OEA has
stated a prima facie violation for retaliation, we find it appropriate to overturn the partial
dismissal and remand this charge to the General Counsel's office for issuance of an amended
complaint.
We now address the new evidence that OEA has presented in support of its charge. In
its appeal, OEA attached a declaration that contradicts the District's reasons for placing
Robinson on administrative leave, as articulated in the dismissal. PERB Regulation 32635(b)9
provides:
Unless good cause is shown, a charging party may not present on
appeal new charge allegations or new supporting evidence.
The Board is normally reluctant to accept new evidence for the first time on appeal. In
South San Francisco Unified School District (1990) PERB Decision No. 830
(South San Francisco), the Board opined:
The purpose of PERB Regulation 32635(b) is to require the
charging party to present its allegations and supporting evidence
to the Board agent in the first instance, so that the Board agent
can fully investigate the charge prior to deciding whether to issue
a complaint or dismiss the case.
Once the charging party has made a prima facie showing
sufficient to support the inference that the exercise of employee
rights granted by EERA was a motivating factor, ... the burden
shifts to the employer to prove that its action(s) would have been
the same despite the protected activity. (Citations.)
The shifting burden merely requires the employer to make what is
actually an affirmative defense to the prima facie case of
wrongful motive. 	[Emphasis added.]
9PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
12

The Board held in South San Francisco and subsequent decisions that good cause did
not exist to allow a party to raise new evidence because no explanation was offered. 10 In
addition, the Board has held that where the charging party has had the opportunity to cure
defects at earlier stages of the proceeding and did not do so, the Board will not allow the
presentation of that evidence on appeal. (Regents of UC.)
As we have already determined that OEA' s charge states a prima facie case, there is no
need for presentation of this rebuttal evidence at this stage of the Board's process. However,
we are troubled by issues raised by OEA in its appeal.
First, OEA unsuccessfully requested copies of the letters in question during a phone
conversation with the Board agent on October 7, 2002, a conversation which occurred after the
issuance of the warning letter but before OEA filed the amended charge. As a result, OEA
asserts that it was unable to refute the specific allegations in these letters, not knowing their
entire contents, nor presumably their authors.
Second, in its amended charge, OEA offered an alternative version of the events at the
May 14 Faculty Council meeting, which places Robinson's alleged behavior in a different
light. 	The amended charge alleges that an administrator participated in a heated exchange with
Robinson and threatened Robinson, but that only Robinson was disciplined.
In its appeal, OEA states that it did not believe that it needed to contradict the facts in
the two letters. The warning letter contained the standard advisory language, which directs the
charging party to amend the charge to correct factual inaccuracies or provide additional facts.
However, the paragraph discussing the basis for dismissing the charge focused on the District's
10See Regents of the University of California (1994) PERB Decision No. 1058-H
(Regents of UC) and cases cited at fn. 8, page 4.
13

decision not to reelect Robinson for the following school year. But the warning letter did not
address the District's placement of Robinson on administrative leave. Therefore, it is
reasonable that OEA did not believe that it would need to contradict the substance of the two
letters in its amended charge. Since the information in the letters comprises the District's
defense to the charge, it is also reasonable that OEA would assume that it was not necessary to
contradict the letters in its amended charge. The declaration from the OEA site representative
attached to OEA's appeal specifically counters the information in the two letters. Since the
Board is remanding this allegation for issuance of an amended complaint, OEA may introduce
this declaration at the appropriate time in accordance with PERB rules and regulations.
ORDER
The Board REVERSES the Board agent's partial dismissal in Case No. SF-CE-2283-E
and REMANDS the case to the General Counsel's office for issuance of an amended complaint
consistent with this Decision.
Members Neima and Baker joined in this Decision.
14