Journey Charter School * * * VACATED by Journey Charter School (2009) PERB Decision No. 1945a (PERB 1945E)

VACATED by Journey Charter School
(2009) PERB Decision No. 1945a
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA TEACHERS ASSOCIATION/NEA,
Charging Party,
V.
JOURNEY CHARTER SCHOOL,
Respondent.
Case No. LA-CE-4808-E
PERB Decision No. 	1945
February 28, 2008
Appearances: California Teachers Association by Rosalind D. Wolf, Attorney, for California
Teachers Association/NEA; Kronick, Moskovitz, Tiedemann & Girard by Christian M. Keiner,
Attorney, for Journey Charter School.
Before Neuwald, Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Journey Charter School (JCS) to an administrative
law judge's (ALJ) proposed decision. In the proposed decision, the ALJ held that JCS violated
the Educational Employment Relations Act (EERA)1 , section 3543.5(a) and (b), when it
refused to renew the contracts of three teachers, Stephanie Edwards (Edwards), Paola Schouten
(Schouten), and Marlene Nicholas (Nicholas). The ALJ held that this conduct was in
retaliation for their expressed intent to seek representation by the California Teachers
Association/NEA (CTA), and for a letter that JCS teachers sent to parents.
The Board has reviewed the entire record in this case, including but not limited to the
complaint, JCS's answer, the hearing transcript, the parties' post-hearing briefs, the ALJ's
1EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

proposed decision, JCS's statement
of
exceptions and supporting brief, and CT
A's
response.2
Based upon this review, the Board reverses the portion
of
the proposed decision finding that
JCS retaliated against Edwards, Schouten and Nicholas for engaging in protected activity. The
Board does not address the portion
of
the proposed decision dismissing CT
A's
charge that the
allegedly anti-union statements made by the Administrative Consultant, Rainbow Rosenbloom
(Rosenbloom), interfered with the teachers' protected organizing activities. As neither party
excepted to this finding, a review
of
the issue is unnecessary.
PROCEDURAL HISTORY
This action commenced on October 25, 2004, when CTA filed an unfair practice
charge against JCS, alleging that an agent
of
JCS warned teachers not to become involved with
unions, and that Edwards, Schouten and Nicholas were discharged because
of
their
involvement with CT
A.
	The Office
of
the General Counsel issued a complaint against JCS on
February 2, 2005, alleging that by such conduct JCS interfered with employee rights and
retaliated against employees in violation ofEERA section 3543.5(a) and (b). The matter was
not resolved at the conclusion
of
an informal conference held on March 14, 2005.
A hearing into these allegations was conducted before the ALJ on September 1, 2, 8, 9
and 23, 2005. At the hearing, CTA amended the charge and complaint to allege that JCS also
retaliated against the three teachers in response to a letter sent by the teaching staff to the
parents
of
JCS students. With the filing
of
post-hearing briefs, the matter was submitted for
decision on December 9, 2005. The ALJ issued the proposed decision on January 19, 2006.
JCS requested oral argument in this matter. The Board has historically denied requests
for oral argument where an adequate record has been prepared, and the parties had an ample
opportunity to brief and did, and the issue before the Board is sufficiently clear to make oral
argument unnecessary. (United Teachers of Los Angeles (Valadez, et al.) (2001) PERB
Decision No. 1453; Monterey County Office of Education (1991) PERB Decision No. 913.)
These criteria are met in this case. Thus, we deny the request for oral argument.
2

FINDINGS OF FACT
JCS, a charter school, is a "public school employer" within the meaning
of
EERA
section 3540.l(k).3 CTA is an "employee organization" within the meaning
ofEERA
section
3540. l(d), but was not the recognized representative
of
JCS employees. Edwards, Schouten,
and Nicholas were public school employees within the meaning
of
section 3540.1
G).
JCS is a public Waldorf Methods School, founded by Edwards and Schouten, and
chartered by the Capistrano Unified School District (District) in 2001.4 JCS
's
charter
established a governance structure that includes a School Council (Council) comprised
of
parent and teacher representatives. The Council is responsible for personnel decisions, the
school's legal and financial stability, and overall school policy. Evidence in the record shows
that JCS attempted to operate by consensus and did not have much management structure.
From 2001 until April 2, 2004, Edwards and Schouten served as classroom teachers, lead
teachers/directors, and as teacher representatives on the Council. Schouten testified that she
was part
of
an "administrative team" that undertook "administrative duties pertaining to
curriculum ... [and] direction
of
the school." Edwards and Schouten conducted hiring and
firing, made work assignments and directed other teachers.
In March 2004,5 District Deputy Superintendent Margaret LaRoe, informed the Council
that the JCS charter, which was up for renewal, as well as the
ih
and 8
th
grade curricula, were
not acceptable and needed to be rewritten. She also expressed concern about the special
3EERA is applicable to charter schools. (Ed. Code section 47611.S(a).) As
of
January 1, 2000, charter school employees have the right to form, join and participate in the
activities
of
employee organizations under EERA section 3543, and PERB has the
authority to investigate allegations of unfair practices committed in a charter school under
EERA section 3541.3(i).
4Edwards and Schouten wrote the original JCS charter.
5All dates hereafter refer to the year 2004 unless otherwise specified.
3

education program, lack
of
sufficient student supervision, and a budget deficit projection.
Some parents communicated to the Council their fears that the charter was in jeopardy.
Council Member Scott Hargis (Hargis) called a special Council meeting for April 22.
Before the meeting, Hargis gave Edwards and Schouten a list
of
parent complaints directed at
them for running the school unilaterally without any input from other sources or any
accountability to the Council or to the JCS community. At a closed session at the end
of
the
April 22 meeting, Council Members Hargis, David Jones (Jones), Karen Lichty (Lichty), and
Tracy Seemann (Seemann) voted to remove Edwards and Schouten as directors but to retain
them as teachers, and to appoint Lichty and Seemann as interim directors. On April 23, Hargis
and Jones informed Edwards and Schouten that they were "fired" as directors but retained as
teachers. The Council announced its decision at a lunchtime teachers' meeting. Several
teachers cried, and many walked out
of
the meeting.
The school community was divided over this decision. On the morning
of
the annual
Mayday festival, several parents gathered outside the school to protest the Council's action,
some carrying signs. Hargis testified that this protest, in the presence
of
children, was
inappropriate. Edwards, Schouten, and Nicholas went to the office
of
the principal
of
the high
school on whose campus JCS is located, for advice on how to calm down the situation. When
they returned to the school gate they barred parents from entering the campus, which some
Council members felt put a damper on the Mayday festivities. That evening a Council meeting
was held to discuss the day's events. Approximately 50-60 parents rallied on both sides
of
the
issue. Nicholas spoke strongly in support
of
Edwards and Schouten. She got into a verbal
altercation with a parent and expounded that all parents were role models for their children and
that when some were hiding in the bushes, "I wonder how much longer before we have another
Columbine." The parent became greatly upset and had to be escorted off the property. 	On
4

May 3, Nicholas wrote a letter
of
apology to the Council, parents, and staff for her reference to
Columbine.
On May 6, Lichty sent a letter to parents soliciting their complaints about Edwards and
Schouten and seeking support for the Council's April 22 action. Approximately 20 percent
of
the school's parents responded with complaints.
At a Council meeting on May 12, Hargis made a motion to terminate Edwards and
Schouten completely from JCS, which was not seconded. The Council then passed a motion,
with Hargis dissenting, to return them to their director positions on the condition that they
participate in mediation. The Council also voted to employ the services
of
Rosenbloom as a
consultant to mediate between the Council and the teaching staff. On May 14, the Council sent
a letter to parents explaining the recent events and asking everyone to come together.
Concerned about her status and those
of
her fellow teachers, Edwards contacted CTA
and on May
13
the teachers met in a JCS classroom with CTA Organizer Joe Boyd (Boyd) to
discuss the possibility
of
union representation. 	Several teachers expressed fear that their jobs
had no protection and seemed favorable to bringing in CT A.
Rosenbloom held mediation sessions during June and July, attended by Edwards,
Schouten, Lichty, and Council President Bas Mulder (Mulder). At the first session, there was a
general discussion about the current climate
of
distrust. Rosenbloom suggested restructuring
the JCS governance, which he labeled "re-imagination." As a result, new committees were
formed, including an Executive Committee to consist of administrators, teachers, and parents.
Although Edwards and Schouten solicited teachers to participate, they were reluctant, as they
felt they were being asked to assume more duties. According to Schouten, she informed
Lichty after a meeting in June that the teachers were "going to organize."
5

Rosenbloom also met regularly with the teaching staff to discuss the current dissension
and his "re-imagination" concept. At a teacher meeting with Rosenbloom in June, Edwards
and Schouten said they would step down as directors, and Dana Ware (Ware) was appointed
director and teacher representative to the Council.
On June 13, Rosenbloom sent an e-mail to the Council members, seeking approval for a
letter he drafted to the JCS community regarding the results
of
the mediation process. In his
draft letter, he urged an "aura
of
mutual respect and admiration" and the restructuring
of
JCS
governance, and stated that Edwards and Schouten had resigned as directors. He also noted
that henceforth, all "official communication" from JCS would contain a statement that it was
"approved by Journey faculty and Council."6 However, the letter was not sent because Hargis
insisted that Edwards and Schouten first put their resignations in writing, which was not done.7
The record shows that by June 26, the last day
of
the 2003/2004 school year, Edwards
and Schouten had stepped down from their positions as directors, although they had yet to
submit written resignations to the Council. The teachers had an informal meeting that day with
Mulder and Lichty, expressing concerns regarding their new workload under the "re-
imagination" changes. According to Ware, she told Mulder and Lichty this was the reason the
teachers needed to join the union.
On July 19, Ware e-mailed Jones regarding her concerns about Rosenbloom's changes
to teacher contracts. Ware did not mention CTA in the e-mail, but testified that a few days
later, she spoke with Jones about the same concerns and said that when the teachers join the
The record is unclear as to when this communication policy was adopted. It was in
response to critical e-mails Hargis sent regarding Edwards and Schouten, that were thought by
many parents to be official JCS communications.
7Hargis and Mulder contend that they either told Rosenbloom to obtain their written
resignations or it was understood that he would do so. Edwards and Schouten denied ever
being asked to submit written resignations.
6

union, the union will be handling the teachers' contracts. Ware also testified that she raised the
union issue with Hargis on July 28 when he refused to allow her to attend a closed session
of
the Council. She told Hargis that until the teachers joined the union, she was the only voice for
them on the Council.
On July 26, the teachers met at Edwards' home and drafted the following letter:
Dear Parents
of
Journey School,
This letter by the teacher faculty at Journey School is intended to
communicate directly to you some
of
the issues that have been
weighing heavily on our hearts and minds. We are aware and
sensitive to the honest concerns that some
of
the parents have
expressed concerning their frustration with some aspects
of
the
parent-teacher relationship and operations
of
Journey School.
The teaching faculty is open and committed to these efforts
of
dialogue and mediation for resolving issues.
The teacher faculty, along with the parents, has been committed
to the students' educational welfare from the very inception
of
the school. The record shows that even with 'growing pains',
Journey School had been a flourishing and financially sound
place where the children were thriving.
The teachers have believed that continual acrimony on certain
issues was unnecessary and unhealthy for the welfare
of
the
children and the school. This was the reason that the teaching
Directors decided to take a hiatus while mediation was in
process and had not taken any legal recourse.
We have been seriously concerned with the financial and
executive management course that the school has taken since
April 21, 2004. It is our belief at this point that the Council's
financial and management decisions are putting the school at
serious legal and financial risk
of
insolvency. These issues pale
in comparison to the possible non-renewal
of
the charter by the
district. We have serious concerns over the financial, executive
management and accountability
of
the school for the following
reasons:
• 	Repeated violations of the Brown Act (by failure to
properly agendize items for meetings and improper
posting of agendas) and continuing to ignore the school's
legal council [sic] opinion on conducting the council
meetings within the boundaries of the law.
7

• 	Accessing
of
confidential student files by Council
members.
• 	Prior to April 21, Journey School was financially sound
with a balanced budget
of
more than $1,000,000 in
revenue and $300,000 in savings. Currently, the school is
facing a $311,000 shortfall that has been exacerbated by
an enrollment decrease
of
30%.
• 	The hiring
of
a consultant despite Journey School's
policies to put the contract up for competitive bidding.
This consultant was initially hired for the mediation
process, but has now been directed to run the school's
operations, despite the schools growing budget crisis.
• 	Lack
of
follow up on solid leads in procuring a site in
San Clemente.
This management approach is not in accordance with the spirit
of
Steiner's model. We are open to meeting with any parent or
parents directly and discussing and resolving the issues.
We do not feel that the current political climate is serving the
best interests
of
the children, the parents, or the community. We
do not want any part
of
a political power struggle; we want
dialogue, cooperation, and balance and a truly model educational
environment for the children to exist and thrive. We agree that
there are areas within the school where we could have done a
better job, which is something we want to examine and improve
upon. However, we do not think that this gives current Council
a license to compromise the educational welfare
of
the children
to serve political ends. Our experience with Council's
management has brought us to the conclusion that there is little
interest in a collaborative, open, and transparent model, which
ultimately impacts the viability
of
the school.
In closing, our reports are nearing completion and our summer
training was inspiring and uplifting. We are looking forward to
moving into the future where the vision and integrity
of
Journey
School's promise to deliver a quality Waldorf education will not
be compromised. We ask for your help and commitment
towards the goal of a healthy Steiner school.
The letter contained the names of all of the teachers. It was duplicated on plain paper and
mailed to parents in JCS envelopes.
8

Schouten testified that the teachers sent the letter because "[t]here was a general sense
amongst the teachers
of
mismanagement within the school," and the teachers wanted to
communicate their perspective to the parents. Ware testified that the letter spoke with the
teachers' "collective voice," and was sent because the Council had not been listening to what
they "have been trying to say." The teachers were dissatisfied with their "work status," and
felt that they did not have job security.
Some parents were angered by the letter. Also incensed were the Council members,
who believed Edwards and Schouten instigated and wrote the letter and that the other teachers
did not give their full consent. Hargis testified that Edwards and Schouten should have
addressed their complaints to the Council. Hargis believed they created more dissension and
violated the new communications policy by sending the letter directly to the parents.
According to Ware, Lichty phoned her and asked why they sent the letter, because Lichty
believed everything was fine. 	Ware responded that everything was not fine and when they join
the union they would not have such problems.
On August 10, the teachers met again with CTA representative Boyd and voted to
become part
of
the District's faculty bargaining unit. One
of
the teachers, whom Rosenbloom
considered a confidante, informed him
of
the meeting with CTA.
At a Council meeting on August 17, Mulder, Hargis, and Lichty went into closed
session to discuss teacher contracts. They voted unanimously not to renew the contracts
of
Edwards, Schouten, and Nicholas, notwithstanding Rosenbloom's recommendation that they
be renewed as teachers but not as directors.
On August 19, Mulder phoned Schouten, who was out of the country, and informed her
that her contract was not renewed because there was no position available to her as the ih
grade curriculum had not been approved. He also phoned Edwards and Nicholas to come to
9

the school and discuss their contracts. When asked by Edwards why they needed a discussion,
he said she "no longer fit in. "8
The three Council decision-makers testified as follows: 	Hargis contended that JCS
could only "come together" and continue "in the proper manner" without the three teachers.
He stated his belief that Edwards and Schouten were treating the school as their own personal
property and were not accountable to the Council, the parents, or the District. However, he
conceded that he witnessed no misconduct and had no problems with either
of
them, from the
time
of
their reinstatement as directors on May
12
until the July 26 letter, which he attributed
to them. Mulder also believed Edwards and Schouten were running the school by themselves,
controlled all the teachers, and urged them not to volunteer for the new committees in order to
undermine the "re-imagination" process. He testified that he did not believe they could
separate their teaching roles from that
of
their directorships; however, he conceded that after
they resigned as directors, he did not see them perform any director-like functions. 	Yet,
according to Mulder, in spite
of
the efforts at mediation, the power struggle between Edwards
and Schouten, and the Council continued, as evidenced by the July 26 letter, for which he
found them responsible. Mulder claimed, however, that their contracts would have been
renewed
if
they had submitted written resignations
of
their directorships. Lichty testified that
Edwards' and Schouten's contracts would have been renewed but for the July 26 letter, which
she believed broke the trust which had been building during mediation. As to Nicholas,
Mulder contended that her Columbine remark was so unacceptable that he did not want her to
The three teachers, contending that they were unsure whether they had actually been
terminated, appeared at the JCS office on September 7, the first day of school. Mulder arrived
and asked what they were doing there, as they had no contracts. 	Schouten said their contracts
never expired. Mulder left and returned with Rosenbloom, who told the three teachers,
apologetically, that he had "nothing to do with it." Edwards stated that Mulder never told them
they were fired. 	The teachers subsequently left. None of the three teachers received any
further reason or notice for their termination.

continue at the school. Similarly, Hargis testified that Nicholas said some "inappropriate
things" and the campus would "come back together" without the three teachers.
DISCUSSION
The issue on appeal is whether JCS declined to renew the contracts
of
Edwards,
Schouten, and Nicholas because they engaged in protected conduct.
To establish a prima facie case
of
discrimination in violation
of
EERA section
3543.5(a), the charging party bears the burden
of
showing that the employee engaged in
protected activity, the employer knew
of
the activity; and that 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 protected activity.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato); Carlsbad Unified
School District (1979) PERB Decision No. 89.)
Upon a showing
of
protected conduct and adverse action, the party alleging
discrimination must then make a prima facie showing
of
unlawful motivation. Under Novato,
unlawful motivation occurs where an employer's action against an employee was motivated by
the employee's participation in protected conduct.
When direct proof
of
unlawful motivation is not available, the Board reviews the record
as a whole to determine if the inference
of
unlawful motive should be drawn. Factors that may
support such an inference include the timing
of
the employer's adverse action in relation to the
employee's protected conduct. (North Sacramento School District (1982) PERB Decision
No. 264 (North Sacramento School District).) However, timing alone, without more, does not
demonstrate the necessary connection or "nexus" between the adverse action and the protected
conduct. (Moreland Elementary School District (1982) PERB Decision No. 227 (Moreland).)
Facts establishing one or more of the following additional factors must also be present: (1) the
11

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 (Department
of
Parks and Recreation)); (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 (Cupertino)); or (7) any other facts
which might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra.)
Once an inference is made, the burden
of
proof shifts to the employer to establish that it
would have taken the action complained of, regardless
of
the employee's protected activities.
(Novato; Martori Brothers Distributors v. Agricultural Labor Relations Board (1981)
29 Cal.3d 721.)
JCS argues the ALJ erred in finding that Edwards, Schouten and Nicholas were
terminated after they joined with other teachers in expressing their interest in joining CTA and
in sending the July 26 letter to parents. JCS contends that this finding ignores the fact that
Edwards and Schouten were "steeped in controversy because
of
their service as directors and
founders
of
the school," and the evidence that Nicholas was "tangentially involved" in the
"purported protected activities." JCS disagrees with the ALJ's finding that it had knowledge
of the exercise of association rights, and that the July 26 letter constituted protected activity.
JCS states that the letter concerns Waldorf policy issues, rather than terms and conditions of
12

employment within the meaning
of
EERA. JCS contends that the letter signified to many that
the mediation process, a condition
of
the continued employment
of
Edwards and Schouten, had
not worked. JCS further states that Edwards and Schouten were released "after lengthy
attempts to resolve a variety
of
deep and longstanding disputes about the mission, governance
status and location
of
Journey." The release was consistent with the "at will" employment
relationship. With respect to Nicholas, JCS contends that neither the CTA purports nor the
ALJ found that her remarks about "Columbine" were protected under EERA.
CTA supports the ALJ' s finding that the Council had knowledge
of
the teachers'
interest in union organizing because
of
Ware's more specific testimony regarding her
communications to Lichty, Mulder, Jones, Hargis and Rosenbloom concerning the teachers'
desire to join the union; and the ALJ's application
of
the "small plant doctrine." CTA agrees
with the ALJ's finding that the July 26 letter was protected activity because it enumerated
employment issues such as complaints about financial and management decisions, legal
violations, a budget shortfall, hiring without competitive bidding, the "power struggle"
between the Council and the teachers, and the Council's lack
of
interest "in a collaborative,
open, and transparent model." CTA also concurs with the ALJ' s finding that the letter was not
"opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice, or
disruptive or interfered with school activities so as to lose EERA protection."
In finding that the contents
of
the July 26 letter constituted protected activity, the ALJ
relied on Rancho Santiago Community College District (1986) PERB Decision No. 602
(Rancho Santiago). In Rancho Santiago, the charging party was disciplined for writing articles
that were highly critical of the school district relative to an attempted murder of a faculty
member and alleged intimidation of faculty. 	(Id., at pp. 6-7.) The Board determined that such
complaints would be protected in some instances, stating:
13

Preliminarily, the speech must be related to matters
of
legitimate
concern to the employees as employees
so
as to come within the
right to participate in the activities
of
an employee organization
for the purpose
of
representation on matters
of
employer-
employee relations. (Section 3543.)
(Id., at
p.
12; emphasis added.)
[The employee's] writings are related to matters
of
legitimate
concern to employees as employees, including such subjects as
teacher safety, negotiations, leaves, the autonomy and
effectiveness
of
the exclusive representative and other employee
organizations, educational policy and academic freedom.
The Board in Rancho Santiago referred to its prior decision in Mt. San Antonio
Community College District (1982) PERB Decision No. 224 (Mt. San Antonio). In
Mt. San Antonio, employees distributed leaflets at a graduation ceremony critical
of
the
district's fiscal management and educational policies. The leaflets specifically mentioned
negotiations with the faculty, which was a topic
of
wide publication in the community.
The Board found that leaflets containing allegations which did not directly address disputed
issues at the bargaining table or in negotiating proposals, were nonetheless "comments on
matters which were
of
legitimate concern to the teachers as employees." (Id., at p. 7.)
In Regents
of
the University
of
California (1984) PERB Decision No. 449-H, an
employee wrote a letter to the employer shortly after learning
of
a work cancellation. The ALJ
wrote in the proposed decision which the Board adopted,
The letter itself purported to speak for other employees and
addressed a variety
of
employment-related subjects as they
impacted on on-call workers. [9l
...
Criticism
of
a supervisor on
employment-related subjects is protected under the Act when its
purpose is to advance the employees' interests in working
conditions.
(Id., proposed dee., at p. 143.)
E.g., "the letter complained about such issues as advance notice, cancellation of work
assignments, and the breakdown of communication between 'management and labor."'
14

In the present case, contents
of
the letter to parents did not directly address any issues
relating to the teachers' interests as employees. The teachers expressed their concerns for the
operations
of
the school, welfare
of
the children, financial and executive management
of
the
school, possible non-renewal
of
the charter, hiring
of
the consultant, and complained that the
management approach was not in accordance with the spirit
of
Waldorf model. They stated
they could have done a better job in certain areas. However, the teachers did not state how all
these complaints impacted their working conditions, or how these concerns would advance
their interests as employees. Without such evidence, the Board cannot make any inference
of
protected activity.
The evidence fails to show how the letter was specifically and directly related to work
conditions, treatment
of
teachers as employees, job cancellation or labor relations problems.
As the letter did not state matters
of
legitimate concern to the employees as employees, the
teachers did not engage in activity protected by EERA when they distributed the letter.
CTA next contends that JCS discriminated against Edwards and Schouten for union
organizing. It is undisputed that Edwards, Schouten, and Nicholas did engage in protected
conduct when they sought the assistance
of
the CTA and decided to join the union.
The ALJ found that the Council, specifically Hargis, Mulder and Lichty who voted not
to renew the three teachers' contracts, was aware
of
the union organizing effort. Hargis,
Mulder and Lichty each testified that he or she had no knowledge
of
the teachers' organizing
effort. On the contrary, Ware testified that on multiple occasions she informed JCS Council
members of the teachers' contacts with CTA and their intent to organize. 10 The ALJ resolved
10
As stated earlier, Ware informed Mulder and Lichty after an informal meeting on
June 26, that the teachers needed to join the union. On July 19, Ware spoke to Jones that when
the teachers join the union, the union would be handling the teachers' contracts. Ware also
testified that she had raised the union issue with Hargis on July 28 when he refused to allow
her to attend a closed session of the Council. After the July 26 letter was sent, Ware told
15

the contradictory testimony by crediting Ware's "specific testimony" over the other witnesses'
general denials. The ALJ stated that she found it difficult to believe that Rosenbloom, who
admitted to having knowledge
of
the teachers' union organizing efforts, would not have
communicated this fact to the Council. We find the ALJ' s credibility determination to be
supported by the record, which contains extensive testimony by Ware explaining the
circumstances under which she discussed the organizing efforts with Council members and
parents. Therefore, we defer to the ALJ's finding that the Council was aware
of
the teachers'
union organizing efforts.
It is undisputed that JCS's decision in not renewing the contracts
of
Edwards, Schouten,
and Nicholas constituted an adverse action against them. We now consider whether JCS
refused to renew the contracts
of
Edwards, Schouten and Nicholas because
of
the teachers'
efforts to organize and join a union. Viewing the record in its totality, we find that there is
insufficient evidence to support an inference that JCS was unlawfully motivated to
discriminate against Edwards, Schouten and Nicholas because
of
their participation in
protected union organization activities.
We note that the August 17 decision not to renew the teachers' contracts followed
closely after the teachers' second meeting with CTA representative Boyd on August 10, in
which they voted to become part
of
the District's faculty bargaining unit. However, timing
alone, without more, does not demonstrate the necessary nexus between the protected act and
the adverse action. (Moreland.)
One
of
the factors that can be used to establish nexus is employer animosity towards a
union activist. (Cupertino.) JCS was aware of the teachers' union organizing effort, but there
Lichty that when the teachers joined the union, they would not have the problems listed in the
letter.
16

is no evidence that it had ever tried to frustrate, thwart or discourage their attempt. For
example Ware, who testified about informing the Council
of
the teachers' organizing efforts,
was not subjected to any adverse action. Further, when the teachers held their first meeting
with Boyd in a JCS classroom on May 12, the Council took no action to prevent it.
Nexus can also be proven by evidence
of
the employer's inconsistent or contradictory
justifications for its actions. (Department
of
Parks and Recreation.) However, the record is
devoid
of
evidence that JCS' s justification for its action was inconsistent or contradictory. JCS
would have renewed the contracts
of
Edwards and Schouten
if
they had not written and sent
the July 26 letter to the JCS parents. JCS's evidence demonstrated its serious intent to resolve
the long-standing disagreement between the Council and Edwards and Schouten, as founders
and former directors, over the direction and policy
of
JCS. Edwards and Schouten played
different roles - as founders, as lead teachers/directors who supervised and assigned work to
other teachers, and as teachers themselves. Since they wrote the original JCS charter and were
in the process
of
re-writing the JCS charter, it is apparent that they had a definite vision for
JCS that conflicted with other Council members and parents. Their dedication to their own
vision caused other Council members and parents to criticize that they were running the school
unilaterally or without any accountability to the Council or to the JCS community. Therefter a
majority
of
the Council decided at the April 22 Council meeting to remove Edwards and
Schouten as directors. Later, the majority opted to follow the Waldorf principles
of
operating
by consensus, and reinstated Edwards and Schouten as directors at the May 12 Council
meeting, on condition that they participate in mediation. Rosenbloom held mediation sessions
during June and July, attended by Edwards, Schouten, Lichty and Mulder. Rosenbloom's
extensive involvement in conducting mediation sessions with the various segments of the JCS
community demonstrated that reaching a consensus was JCS's top priority.
17

The testimony
of
the Council members who voted not to renew the three teachers'
contracts established that they made the decision because the contents
of
the letter showed that
the mediation between the Council and the teachers had failed and the teachers had breached
the policy to communicate with parents through the Council. Hargis, who had sought to
remove Edwards and Schouten from JCS even before the teachers' first meeting with
CTA
representative Boyd, testified that he did not find any misconduct by either
of
them from their
reinstatement as directions on May 12 until the mailing
of
the July 26 letter. He attributed the
authorship
of
the letter to Edwards and Shouten and found they were treating the school as
their own personal property, and were not accountable to the Council, parents or the District.
Lichty phoned Ware after receiving the July 26 letter to ask her why the teachers sent
the letter because Lichty believed everything was fine. 	Lichty believed the letter broke the
trust which had been building during mediation. Mulder testified that Edwards and Schouton
continued their "power struggle" with the Council, as evidenced by the letter.
11
Thus, we
conclude that JCS' s justification for its non-renewal
of
the teachers' contracts was not
inconsistent or contradictory.
CTA argues that the Council did not offer Edwards, Schouten and Nicholas
justification for the non-renewal
of
their contracts at the time it took action on August 17.
When asked by Edwards on August 19 why she needed to have a discussion concerning her
contract, Mulder simply said she "no longer fit in." It was unclear
if
the Council had given
11
CTA argues that "when employees join together to question the employer's actions or
policies, the employer looks at it as a 'power struggle' or 'fostering dissension."' We view the
"power struggle" in this case as a struggle for the mission and direction
of
JCS, a Waldorf
based charter school that adheres to the Rudolph Steiner educational method. Ideally, the
entire JCS community would operate on consensus and engage in informal conflict resolution.
When this ideal could not be achieved, JCS turned to mediation under Rosenbloom's guidance.
Because the Council members had equated the success of this mediation process to its own
continued existence, they seemed to view the letter as an affront to the effort to hold the JCS
community together.
18

Schouten and Nicholas any specific reasons for the non-renewal
of
their contracts, other than
Mulder's testimony that on August 19, he had phoned Schouten to inform her that her contract
was not renewed because there was no position available to her as the ih grade curriculum had
not been approved. While it is true that JCS did not give a more clear reason to the teachers
for the non-renewal
of
their contracts, the totality
of
the circumstances nevertheless indicate
that JCS took the action because
of
the letter. We are therefore unable to draw a reasonable
inference
of
unlawful motivation based solely on the proximity
of
JCS' s action and its failure
to give the teachers a clear justification for their decision.
Based on the evidence in the record and the ALJ' s finding,
12
the Board finds that JCS
decided not to renew the three teachers' contracts due to the contents
of
the July 26 letter,
which we have determined is not protected activity, rather than the teachers' attempt at union
organization.
With respect to the non-renewal
of
Nicholas' contract, the ALJ found that the Council
terminated Nicholas based upon her support for Edwards and Schouten against the Council's
removal
of
them as directors on April 22, her allegedly inappropriate "Columbine" remarks at
the April 29 meeting, and the July 26 letter. Neither the letter nor her support for Edwards and
Schouten was protected activity. CTA did not provide any relevant or pertinent evidence to
justify that Nicholas's allegedly inappropriate "Columbine" remarks were protected activity.
Therefore, the claim
of
discrimination with respect to the non-renewal ofNicholas's contract
fails.
1 The ALJ stated on pages 21-22 of the proposed decision:
It is clear from the record that the overriding motivation for the
actions against Edwards and Shouten, as well as against their
close ally Nicholas, as discussed above, was the contents of the
July 26 letter, a protected activity.
(Emphasis added.)
19

The evidence supports a finding that JCS did not renew the contracts
of
Edwards,
Shouten and Nicholas because
of
the content
of
the July 26 letter, which was not protected
activity. In addition, there is insufficient evidence to show JCS was unlawfully motivated to
discriminate against the three teachers because
of
their expressed intent to form and
join
a
union. Accordingly, the Board concludes that CTA has not sustained its burden
of
proof to
show that JCS discriminated or retaliated against Edwards, Schouten and Nicholas for their
participation in protected activity.
ORDER
The unfair practice charge and complaint in Case No. LA-CE-4808-E are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Member McKeag joined in this Decision.
Chair Neuwald's concurrence and dissent begins on page 21.
20

NEUWALD, Chair, concurring and dissenting: I respectfully concur with the
majority's conclusion that the letter sent to the parents
of
Journey Charter School (JCS) was
not protected and, as a result, JCS did not retaliate against Stephanie Edwards (Edwards),
Paola Schouten (Schouten), and Marlene Nicholas (Nicholas) for said activity.
	I,
however,
disagree with the majority's conclusion that JCS did not retaliate against Edwards, Schouten,
and Nicholas when it refused to renew their contracts because
of
their expressed intent to seek
representation by the California Teachers Association, NEA (CTA). Rather, I agree with the
administrative law judge (ALJ) that JCS did retaliate against the teachers because
of
their
protected conduct:
The remaining question then is whether a sufficient nexus exists
between the teachers' interest in CTA and the non-renewal
decision. [Scott] Hargis, [Karen] Lichty and [Bas] Mulder all
denied that the idea
of
a union would have upset them. However,
everyone acknowledges that the problem between the Council
and the faculty was one
of
control.
	If
CTA had come on the
scene, surely the Council would have further lost control over the
teachers' wages and working conditions. Thus, the Council had a
motive to try to keep the union out by removing those whom they
believed instigated and controlled all teacher actions, i.e.,
Edwards and Schouten. Further, Hargis demonstrated his animus
to concerted activity in his objections to the community protest
outside the school on April 29.
As to Nicholas, she was not held responsible for the conduct
ofthe teaching staff to the same extent as Edwards and Schouten.
However, she was perceived as Edwards' and Schouten's
principal and most vocal supporter; her Columbine remark, which
JCS contends had a lingering effect on the community, was made
in the context
of
her support for them and her opposition to the
Council's removing them as directors; according to Rosenbloom,
the Council consistently complained about Nicholas'
performance in the same breath as Edwards' and Schouten's; and
Hargis testified that the only way for JCS to come together was
21

without all three teachers. I therefore find that JCS had the same
motivation to remove Nicholas as they had to remove Edwards
and Schouten.
(ALJ's proposed dee. at
p.
19; emphasis in original.)
I, therefore, find a nexus between the teachers' interest in CTA and the Council's
decision not to renew the three contracts and, as such, find a violation
of
the Educational
Employment Relations Act, section 3543.5(a) and (b
).
22