Berkeley Unified School District (PERB 1538E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BERKELEY FEDERATION OF TEACHERS
#1078,
Charging Party,
V.
BERKELEY UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-2295-E
PERB Decision No.
	1538
June
	24,
	2003
Appearances: Van Bourg, Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for
Berkeley Federation
of
Teachers #1078; Atkinson, Andelson, Loya, Ruud & Romo by
Marleen L. Sacks, Attorney, for Berkeley Unified School District.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Berkeley Federation
of
Teachers #1078 (Federation)
of
a Board
agent's dismissal
of
its unfair practice charge. The charge alleged that the Berkeley Unified
School District (District) violated the Educational Employment Relations Act (EERA)1 by
retaliating against Federation members because the Federation filed a grievance. 	Specifically,
the Federation alleges that the District refused to grant waivers
of
certain provisions in the
parties' collective bargaining agreement, because the Federation had filed a grievance over an
unrelated issue.
1 EERA is codified at Government Code section 3540 et seq.

After reviewing the entire record in this matter, including the original and amended
charge, the warning and dismissal letters, the Federation's appeal, and the District's response,
the Board reverses the Board agent's dismissal and remands the case for further processing
consistent with the discussion below.
BACKGROUND
The District and Federation are parties to a collective bargaining agreement (CBA)
which expired on June 30, 2002. Section 11.8 of the CBA specifies the length of the
instructional day. The Federation alleges that it had been the practice at many schools for the
District to grant waivers of Section 11. 8, so that teachers could work more minutes than the
CBA would otherwise allow for four days per week. In return, the teachers were allowed to
use the minutes that they had "banked" to work a shortened workday for one day per week. At
several schools, Wednesday was the shortened workday.
In December 2001, management at the Berkeley Arts-Magnet Elementary School
notified teachers that staff meetings would be held on Wednesdays at 3:00 p.m. The
Federation's position was that the CBA required staff meetings to begin by 2:20 p.m.
Accordingly, the Federation filed a grievance. The record indicates that the grievance was
eventually submitted to arbitration.
In June 2002, the Federation requested waivers of the CBA at seven schools so that
teachers could "bank" minutes as described above. The District only granted three waivers.
At each of the schools where a waiver was granted, the teachers had agreed to hold staff
meetings at 3:00 p.m. The Federation alleges that Chris Lim (Lim), the District's associate
superintendent, informed Barry Fike, the Federation's president, "that the District had taken its
position of not signing off on waivers because the Union had filed a grievance involving the
extended working day on Wednesdays." In addition, the Federation alleges that its
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representatives at various schools were informed that "the District would not agree to further
waivers because the Union had filed the grievance at the Art-Magnet School."
BOARD AGENT'S DECISION
The Federation alleges that the District retaliated against its members in violation of
EERA section 3543.S(a).2 The Board agent analyzed the Federation's charge using the
familiar framework set forth in Novato Unified School District (1982) PERB Decision No. 210
(Novato). Under Novato, 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.) The third prong of Novato requires
that the charging party prove a nexus between the protected activity and the adverse action.
With respect to nexus, the Board agent concluded that the Federation had failed to
demonstrate that the District denied the waivers because of the Federation's grievance.
Specifically, the Board agent held that Lim's statement was not direct evidence of animus
because the District also denied waiver requests at schools where no grievance was filed.
2 EERA section 3543.S(a) states, in pertinent part:
It shall be unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise ofrights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
3

Further, the Board agent noted that the District was under no obligation to grant waivers under
the CBA. As no nexus was established, the Board agent dismissed the charge.
DISCUSSION
Nexus
PERB has long recognized that direct evidence of discriminatory intent - the proverbial
"smoking gun" 	is rarely possible. (See Oakdale Union Elementary School District (1998)
PERB Decision No. 1246.) Accordingly, the Board has held that circumstantial evidence of
discriminatory intent may be sufficient to establish the required nexus. Circumstantial
evidence of discriminatory intent may include such factors as the timing of the employer's
adverse action, the employer's disparate treatment of the employee, and the employer's
departure from established procedures and standards. However, in those cases where direct
evidence of discriminatory intent is established, circumstantial evidence of intent is not
required. (San Marcos Unified School District (2003) PERB Decision No. 1508 (San Marcos)
at p. 45, fn. 26.)
In this matter, the Federation alleges that Lim stated, "that the District had taken its
position of not signing off on waivers, because the Union had filed a grievance involving the
extended working day on Wednesdays." This statement provides a direct link between the
filing of the grievance (protected activity) and the alleged adverse action (denial of waivers).
Thus, the Federation has shown the requisite "nexus" in order to establish a prima facie case.
The Federation's direct evidence of discriminatory intent is not affected by the
District's contemporaneous denial of waivers at schools where no grievance was filed.
Disparate treatment, or the lack thereof, is helpful as circumstantial evidence of intent.
However, where direct evidence of intent exists, circumstantial evidence of intent, or the lack
thereof, is not necessary to establish a prima facie case. (San Marcos at p. 45, fn. 26.)
4

The fact that the District was under no obligation to grant the Federation's waiver
requests is also irrelevant to the issue of motive. BERA section 3543.S(a) prohibits an
employer from taking actions, that may otherwise be entirely permissible, based on an
unlawful motive. (BERA sec. 3543.S(a).) Thus, even though the District could have denied
the waivers for a variety of reasons, or perhaps no reason at all, its denial becomes unlawful
when its motive is to retaliate for the exercise of rights guaranteed by BERA. 3 Accordingly,
the Board finds that the Federation has satisfied the "nexus" requirement of Novato.
Although the Board finds the requisite "nexus," there is not enough evidence in the
record for the Board to order that a complaint be issued. Specifically, the record does not
establish that the District's denial of waiver requests constituted an adverse action, which is
also required by the third prong of Novato. Since the warning letter did not provide the
Federation an opportunity to submit more facts on this issue, the Federation should be given an
opportunity to do so. Accordingly, the Board remands this matter back to the Office of the
General Counsel for further processing consistent with this decision.
ORDER
The Board REVERSES the Board agent's dismissal in Case No. SF-CE-2295-E and
REMANDS the case to the General Counsel's office for further processing consistent with this
Decision.
Members Whitehead and Neimajoined in this Decision.
3 The Board is not holding that the District's denial of waivers constitutes an adverse
action. As discussed later in the Board's decision, whether the Federation has established
adverse action should be addressed on remand.
5