Oakland Unified School District (PERB 1902E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RANDLE BENTON,
Charging Party,
V.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-2586-E
PERB Decision No. 	1902
May 	7, 	2007
Appearance: Randle Benton, on his own behalf.
Before Shek, McKeag and Neuwald, Members.
DECISION
SHEK, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Randle Benton (Benton) of the Board agent's dismissal (attached) of his
unfair practice charge. The charge alleged that the Oakland Unified School District violated
the Educational Employment Relations Act (EERA) 1 by reprimanding him and reducing his
position from a 100 percent position to an 80 percent position. Benton alleged that this
conduct constituted a violation of EERA section 3543.7.
The Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charges, the warning and dismissal letters, and the appeal.
Based upon this review, the Board affirms and adopts the Board agent's dismissal as the
decision of the Board itself.
1EERA is codified at Government Code section 3540, et seq.

ORDER
The unfair practice charge in Case No. SF-CE-2586-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Neuwald joined in this Decision.
2

,..,·.
STATE OF CALIFORNIA 	( 	ARNOLD SOIW ARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
January 12, 2007
Randle Benton
P.O. Box 18874
Oakland, CA 94619
Re: 	Randle Benton v. Oakland Unified School District
Unfair Practice Charge No. SF-CE-2586-E
DISMISSAL LETTER
Dear Mr. Benton:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 6, 2006. Randle Benton alleges that the Oakland
Unified School District violated the Educational Employment Relations Act (EERA)1 by
reducing the number of hours Mr. Benton worked.
I indicated to you in my attached letter dated December 14, 2006, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to December 21, 2006, the charge would be
dismissed.
On December 20, 2006, I received a first amended charge. The first amended charge provides
documentation for many of the allegations presented in the original charge. However, the
amended charge does not address the deficiencies outlined in my December 14, 2006, letter. A
summary of the relevant facts is as follows.2
On January 5, 2006, you received a Letter of Concern from Principal Steve Thomasberger
regarding your interaction with other employees. More specifically, the Letter of Concern
notes that you took an "overly aggressive and verbally abusive" tone with another District
employee. Additionally, the letter notes your failure to attend mandatory District meetings.
The letter further indicates you should attend these meetings in the future and be aware of your
behavior towards others.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 On January 3 and January 4, 2007, we exchanged a number of voice mail messages
regarding the status of your charge.

SF-CE-2586-E
January 12, 2007
Page 2
On June 12, 2006, Outreach Coordinator Jackie Vu sent an electronic message to each
of
the
Outreach Consultants. The message stated you would continue to be assigned to Allendale
School, but that your position would be only a 75% position.
On June 20, 2006, you met with Principal Thomasberger. During this meeting, Principal
Thomas berger gave you a Letter
of
Reprimand regarding your attendance and alleged
unprofessional conduct during a meeting with Ms. Vu. Additionally, during this meeting,
Principal Thomasberger provided you with your annual performance evaluation, which rated
you as "unsatisfactory" in three (3) categories and "needs improvement" in five (5) other
categories. The charge does not include a copy
of
either the Letter
of
Reprimand or the
evaluation.
On July 31, 2006, Human Resource Analyst Bill Whyte sent you a letter indicating that your
hours for the 2006-2007 school year would not be reduced to 75% time. Instead, you were to
remain in your current position with no change in assignment.
At some unspecified time during the Fall
of
2006, you were asked by Secretary Mary Crockett
what day you would like
off
each week. Ms. Crockett indicated your position was an 80%
time position. You allege that when you applied for the position it was listed as a full-time
position. However, as
of
October 31, 2006, the posting for your position was listed as 80%
time.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation
of
the EERA, for the reasons provided below.
I. 	Unilateral Change
It appears you are alleging the District violated the EERA by unilaterally reducing your work
hours. However, individual employees do not have standing to allege unilateral change
violations, (Oxnard School District (Gorcey/Tripp) (1988) PERB Decision No. 667.) nor allege
violations
of
sections which protect the collective bargaining rights
of
employee organizations.
(State
of
California (Department
of
Corrections) (1993) PERB Decision No. 972-S.) As such,
this allegation must be dismissed.
II. 	Discrimination
Although not specifically alleged, I will address the assertion
of
unlawful discrimination based
upon protected activity. 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 Unified
School District (1982) PERB Decision No. 210 (Novato); Carlsbad Unified School District
(1979) PERB Decision No. 89.)

SF-CE-2586-E
January 12, 2007
Page 3
(
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; (5) the employer's failure to offer the
employee justification at the time it took action or the offering
of
exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Herein, the facts fail to demonstrate that you engaged in any protected activity, and as such,
any allegation
of
unlawful discrimination must be dismissed.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
Regulation 32135(d), provided the filing party also places the original, together with the
required number
of
copies and proof
of
service, in the U.S. mail. (Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-2586-E
January 12, 2007
Page 4
Sacramento, CA 95814-4174
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBIN WESLEY
Acting General Counsel
By_._/_~_
✓
	_-_2-	
__
Kristin L. Rosi
Regional Attorney
Attachment
cc: Kimberly Statham

ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
December 14, 2006
Randle Benton
P.O. Box 18874
Oakland, CA 94619
Re: 	Randle Benton v. Oakland Unified School District
Unfair Practice Charge No. SF-CE-2586-E
WARNING LETTER
Dear Mr. Benton:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 6, 2006. Randle Benton alleges that the Oakland
Unified School District violated the Educational Employment Relations Act (EERA)1 by
reducing the number
of
hours Mr. Benton worked.
Investigation
of
the charge revealed the following. 	You are employed by the Oakland Unified
School District as an Outreach Consultant. As such, you are exclusively represented by SEIU
Local 790.
On December 13, 2005, you telephoned Chen Kong regarding available grant money.
Although not fully explained in the charge, it appears your position is funded through grant
money and that your inquiry into the money available was based upon this fact. On January 6,
2006, you received a Letter
of
Concern from Principal Steve Thomasberger. Although a copy
of
the letter was not provided with the charge, you contend the letter indicated you acted
unprofessionally when talking to Ms. Kong.
On June 12, 2006, Outreach Coordinator Jackie Vu sent an electronic message to each
of
the
Outreach Consultants. Although a copy
of
this email was not provided with the charge, you
indicate the message stated you would continue to be assigned to Allendale School, but that
your position would be only a 75% position.
On June 20, 2006, you met with Principal Thomasberger. During this meeting, Principal
Thomas berger gave you a Letter of Reprimand regarding your attendance and alleged·
unprofessional conduct during a meeting with Ms. Vu. Additionally, during this meeting,
Principal Thomasberger provided you with your annual performance evaluation, which rated
you as "unsatisfactory" in three (3) categories and "needs improvement" in five (5) other
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-2586-E
December 14, 2006
Page 2
(
categories. The charge does not include a copy of either the Letter of Reprimand or the
evaluation.
On July 31, 2006, Human Resource Analyst Bill Whyte sent you a letter indicating that your
hours for the 2006-2007 school year would not be reduced to 75% time. Instead, you were to
remain in your current position with no change in assignment.
At some unspecified time during the Fall of 2006, you were asked by Secretary Mary Crockett
what day you would like off each week. Ms. Crockett indicated your position was an 80%
time position. You allege that when you applied for the position it was listed as a full-time
position. However, as of October 31, 2006, the posting for your position was listed as 80%
time.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation of the EERA, for the reasons provided below.
I. 	Unilateral Change
It appears you are alleging the District violated the EERA by unilaterally reducing your work
hours. However, individual employees do not have standing to allege unilateral change
violations, (Oxnard School District (Gorcey/Tripp) (1988) PERB Decision No. 667.) nor allege
violations of sections which protect the collective bargaining rights of employee organizations.
(State of California (Department of Corrections) (1993) PERB Decision No. 972-S.) As such,
this allegation must be dismissed.
II. 	Discrimination
Although not specifically alleged, I will address the assertion of unlawful discrimination based
upon protected activity. 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 Unified
School District (1982) PERB Decision No. 210 (Novato): Carlsbad Unified School District
(1979) PERB Decision No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the

SF-CE-2586-E
December 14, 2006
Page 3
( 	(
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; North Sacramento School
District, supra, PERB Decision No. 264.)
Herein, the facts fail
to
demonstrate that you engaged in any protected activity, and as such,
any allegation
of
unlawful discrimination must be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer
of
the charge form. The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal from you before December 21, 2006, I shall dismiss your
charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
1L-/2_
Kristin
L.
Rosi
Regional Attorney
KLR