Rio School District (PERB 1986E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RIO TEACHERS ASSOCIATION,
Charging Party, 	Case No. LA-CE-5090-E
V 	PERB Decision No. 1986
R 	November 21, 2008
Respondent.
Appearance: California Teachers Association by Michael D. Hersh, Attorney, for Rio
Teachers Association.
Before Mckeag, Wesley and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the Rio Teachers Association (Association) of a Board
agent's partial dismissal of its unfair practice charge. Relevant to this appeal, the charge
alleged that the Rio School District (District) violated the Educational Employment Relations
Act (EERA)' by: (1) bargaining in bad faith; (2) participating in impasse procedures in bad
faith; (3) retaliating against Association President Rebecca Barbetti (Barbetti); and (4)
interfering with Barbetti's and the Association's EERA-granted rights.
EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
"The charge also alleged numerous other EERA violations by the District. The
Association withdrew several of these other allegations before the Board agent acted on the
charge. Simultaneously with the partial dismissal, the Office of the General Counsel issued a
complaint on the remaining allegations. These allegations went to hearing before an
administrative law judge (ALJ) on April 7, 8 and 10, 2008. The ALJ issued a proposed
decision finding several violations and dismissing the remainder of the allegations in the
complaint. Neither party filed exceptions to the proposed decision. As a result, the decision
became final and binding on the parties on August 25, 2008.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RlO TEACHERS ASSOCIATION,
Charging Party,
V.
RIO SCHOOL DISTRICT,,
Respondent.
.
lO SCHOOL DISTRICT
Case No. LA-CE-5090-E
PERB Decision No. 	1986
November 21, 2008
Appearance: 	California Teachers Association by Michael D. Hersh, Attorney, for Rio
Teachers Association.
Before McKeag, Wesley and Dowdin Calvillo, Members.
DECISION
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the Rio Teachers Association (Association) of a Board
agent's partial dismissal of its unfair practice charge. Relevant to this appeal, the charge
alleged that the Rio School District (District) violated the Educational Employment Relations
Act (EERA) 1 by: 	(1) bargaining in bad faith; (2) participating in impasse procedures in bad
faith; (3) retaliating against Association President Rebecca Barbetti (Barbetti); and ( 4)
interfering with Barbetti's and the Association's EERA-granted rights.2
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2The charge also alleged numerous other EERA violations by the District. The
Association withdrew several of these other allegations before the Board agent acted on the
charge. 	Simultaneously with the partial dismissal, the Office of the General Counsel issued a
complaint on the remaining allegations. These allegations went to hearing before an
administrative law judge (ALJ) on April 7, 8 and 10, 2008. 	The ALJ issued a proposed
decision finding several violations and dismissing the remainder of the allegations in the
complaint. Neither party filed exceptions to the proposed decision. 	As a result, the decision
became final and binding on the parties on August 25, 2008.

The Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charge, the District's position statements, the Board
agent's warning and dismissal letters, and the Association's appeal. Based on this review, the
Board affirms the partial dismissal of the charge for the reasons discussed below.
BACKGROUND
Bad Faith Bargaining and Impasse Allegations
On October 5, 2006, the Association "sunshined" its initial proposal for 2006-2007 re-
opener negotiations. The District responded by sunshining its initial proposal on November 2.
The parties began bargaining over the re-opener proposals on January 23, 2007 and met again
for bargaining on January 25. On February 1, the District sunshined its initial proposal for a
2007-2008 successor collective bargaining agreement (CBA).
During negotiations on February 13, 2007, the District formally presented its initial
proposal on the successor agreement to the Association, even though the subject of a successor
agreement was not on the agenda for that session. The District acknowledged that its
successor agreement proposal was vague but stated it would provide more specifics at a later
time.
At the outset of the next bargaining session on February 22, 2007, the District stated it
was contemplating a declaration of impasse on re-opener negotiations because the parties were
still far apart on salary. Later in the session, the District presented a more detailed successor
agreement proposal. The Association responded that it needed more time to consider the
proposal.
EERA section 3547(a) states in full: "All initial proposals of exclusive representatives
and of public school employers, which relate to matters within the scope of representation,
shall be presented at a public meeting of the public school employer and thereafter shall be
public records." This is commonly referred to as "sunshining" the proposal.
2
The Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charge, the District's position statements, the Board
agent's warning and dismissal letters, and the Association's appeal. Based on this review, the
Board affirms the partial dismissal
of
the charge for the reasons discussed below.
BACKGROUND
Bad Faith Bargaining and Impasse Allegations
On October
5,
2006, the Association "sunshined"3 its initial proposal for 2006-2007 re-
opener negotiations. The District responded by sunshining its initial proposal on November
2.
The parties began bargaining over the re-opener proposals on January 23, 2007 and met again
for bargaining on January 25. 	On February
1,
the District sunshined its initial proposal for a
2007-2008 successor collective bargaining agreement (CBA).
During negotiations on February 13, 2007, the District formally presented its initial
proposal on the successor agreement to the Association, even though the subject
of
a successor
agreement was not on the agenda for that session. The District acknowledged that its
successor agreement proposal was vague but stated it would provide more specifics at a later
time.
At the outset
of
the next bargaining session on February 22, 2007, the District stated it
was contemplating a declaration of impasse on re-opener negotiations because the parties were
still far apart on salary. Later in the session, the District presented a more detailed successor
agreement proposal. 	The Association responded that it needed more time to consider the
proposal.
3EERA section 3547(a) states in full: 	"All initial proposals of exclusive representatives
and of public school employers, which relate to matters within the scope of representation,
shall be presented at a public meeting of the public school employer and thereafter shall be
public records." This is commonly referred to as "sunshining" the proposal.
2

Soon after, the Association declared impasse on the re-opener issues. On March 4,
2007, PERB certified that the parties were at impasse on the re-opener proposals.
On March 12, 2007, the District filed an impasse determination request with PERB
regarding the successor agreement. In its filing, the District asserted that the Association had
refused to bargain over the successor agreement proposal at the February 13 and 22, 2007,
bargaining sessions and had never made a counterproposal on the successor agreement.
During the impasse investigation, the District told the Board agent that the parties' bargaining
relationship had deteriorated so much during the re-opener negotiations that agreement on a
successor CBA was unlikely without a mediator.
On March 16, 2007, Barbetti wrote to District Assistant Superintendent Monalisa
Hasson, the head of the District's bargaining team. Barbetti's letter stated that "it is clearly the
intent of the Association to negotiate a successor agreement" and asked for more time to
develop an initial proposal. The District did not respond to the letter. However, it did place its
impasse request in abeyance pending action by the Association. By April 3, the District still
had not received word on when the Association would sunshine its initial proposal or meet for
bargaining. On that date, the District's request was taken out of abeyance and PERB certified
the parties were at impasse on the successor agreement.
Retaliation and Interference Allegations
On May 3, 2007, Barbetti spoke at a District school board meeting. She accused
various District administrators of failing to properly observe probationary teachers and
teachers accused of misconduct. She offered to provide the school board with additional
information upon request.
On May 7, 2007, District Superintendent Sherianne Cotterell (Cotterell) issued a letter
directing Barbetti to provide her with "specific teacher names and school assignments" for
Soon after, the Association declared impasse on the re-opener issues. 	On March 4,
2007, PERB certified that the parties were at impasse on the re-opener proposals.
On March 12, 2007, the District filed an impasse determination request with PERB
regarding the successor agreement. 	In its filing, the District asserted that the Association had
refused to bargain over the successor agreement proposal at the February
13
and 22, 2007,
bargaining sessions and had never made a counterproposal on the successor agreement.
During the impasse investigation, the District told the Board agent that the parties' bargaining
relationship had deteriorated so much during the re-opener negotiations that agreement on a
successor CBA was unlikely without a mediator.
On March 16, 2007, Barbetti wrote to District Assistant Superintendent Monalisa
Hasson, the head
of
the District's bargaining team. Barbetti's letter stated that "it is clearly the
intent
of
the Association to negotiate a successor agreement" and asked for more time to
develop an initial proposal. The District did not respond to the letter. However, it did place its
impasse request in abeyance pending action by the Association. By April 3, the District still
had not received word on when the Association would sunshine its initial proposal or meet for
bargaining. On that date, the District's request was taken out
of
abeyance and PERB certified
the parties were at impasse on the successor agreement.
Retaliation and Interference Allegations
On May 3, 2007, Barbetti spoke at a District school board meeting. 	She accused
various District administrators
of
failing to properly observe probationary teachers and
teachers accused of misconduct. She offered to provide the school board with additional
information upon request.
On May 7, 2007, District Superintendent Sherianne Cotterell (Cotterell) issued a letter
directing Barbetti to provide her with "specific teacher names and school assignments" for
3

each of the allegations she made at the May 3 school board meeting. The letter demanded the
information by the close of business on May 9, 2007, but did not threaten Barbetti with
discipline for non-compliance. The letter also asserted that Barbetti had disclosed
"confidential and privileged information" to the public at the May 3 meeting. The letter did
not threaten Barbetti with discipline for this conduct but did say that Barbetti would be
required to "sign a statement of confidentiality in any future employee situations" in which she
participated on behalf of the Association.
Barbetti did not provide the information by close of business on May 9. As a result, on
May 10, 2007, Cotterell issued Barbetti a letter of reprimand. The letter stated that Barbetti's
failure to produce the information Cotterell demanded constituted insubordination. It further
stated that if Barbetti did not provide the information by 5:00 p.m. the following day, the
reprimand would be placed in her personnel file. The charge does not allege that Barbetti ever
provided the information demanded by Cotterell.
Unfair Practice Charge and Partial Dismissal
The Association's unfair practice charge alleged in relevant part that the District:
engaged in bad faith bargaining by "rushing to impasse" on the successor agreement;
(2) participated in impasse procedures in bad faith by maintaining its request for impasse
determination after the Association had indicated in writing that it wanted to negotiate a
successor agreement; (3) retaliated against Barbetti for her protected activity of speaking at a
not providing it; and (4) interfering with Barbetti's and the Association's EERA-granted rights
by issuing the directive and reprimand.
In the charge, the Association argued that the District bargained in bad faith by seeking
impasse certification when no bargaining had yet taken place on a successor agreement. After
4
each
of
the allegations she made at the May 3 school board meeting. The letter demanded the
information by the close
of
business on May 9, 2007, but did not threaten Barbetti with
discipline for non-compliance. 	The letter also asserted that Barbetti had disclosed
"confidential and privileged information" to the public at the May 3 meeting. The letter did
not threaten Barbetti with discipline for this conduct but did say that Barbetti would be
required to "sign a statement
of
confidentiality in any future employee situations" in which she
participated on behalf
of
the Association.
Barbetti did not provide the information by close
of
business on May
9.
	As a result, on
May 10, 2007, Cotterell issued Barbetti a letter
of
reprimand. The letter stated that Barbetti' s
failure to produce the information Cotterell demanded constituted insubordination. It further
stated that
if
Barbetti did not provide the information by 5:00 p.m. the following day, the
reprimand would be placed in her personnel file. 	The charge does not allege that Barbetti ever
provided the information demanded by Cotterell.
Unfair Practice Charge and Partial Dismissal
The Association's unfair practice charge alleged in relevant part that the District:
(
1)	(1) engaged in bad faith bargaining by "rushing to impasse" on the successor agreement;
(2) participated in impasse procedures in bad faith by maintaining its request for impasse
determination after the Association had indicated in writing that it wanted to negotiate a
successor agreement; (3) retaliated against Barbetti for her protected activity
of
speaking at a
school board meeting by directing her to provide information and then reprimanding her for
not providing it; and (4) interfering with Barbetti's and the Association's EERA-granted rights
by issuing the directive and reprimand.
school board meeting by directing her to provide information and then reprimanding her for
In the charge, the Association argued that the District bargained in bad faith by seeking
impasse certification when no bargaining had yet taken place on a successor agreement. After
4

noting that an unfounded declaration of impasse is not a per se violation of the duty to bargain,
the Board agent examined the allegation under a "totality of the conduct" analysis. The Board
agent found the charge failed to allege facts establishing that the District lacked a subjective
intent to reach agreement on a successor CBA.
The charge also alleged that the District failed to participate in impasse procedures in
good faith by publishing an update on negotiations which stated that the District had proposed
multi-year salary increases during post-impasse mediation. According to the Association, the
District never made such a proposal and furthermore had violated the confidentiality of
mediation by publicly discussing its proposal. The Board agent found the charge failed to
establish that the District had not presented such a salary proposal to the mediator or that the
District had breached any duty of confidentiality.
Regarding the retaliation allegation, the Board agent found that the May 7, 2007 letter
directing Barbetti to produce the information was not adverse to her nor was it issued for an
improper purpose. As for the May 10, 2007 letter of reprimand, the Board agent found the
charge failed to establish a nexus between the letter and Barbetti's protected activity.* The
Board agent did not address the interference allegation based on these same facts.
The Association's Appeal
On December 18, 2007, the Association filed a timely appeal of the partial dismissal.
The Association argues that the District's premature declaration of impasse was a per se
violation of its duty to bargain because it "frustrated negotiations completely." Alternatively,
the Association contends that the charge established bad faith under the "totality of the
he Board agent also dismissed an allegation that a June 7, 2007 letter to Barbetti from
the District's counsel was issued in retaliation for Barbetti's protected activity. On appeal, the
Association states it withdrew that allegation in the amended charge. Accordingly, the
allegation regarding the June 7, 2007 letter is not before the Board on appeal.
5
noting that an unfounded declaration
of
impasse is not a per
se
violation
of
the duty to bargain,
the Board agent examined the allegation under a "totality
of
the conduct" analysis. The Board
agent found the charge failed to allege facts establishing that the District lacked a subjective
intent to reach agreement on a successor CBA.
The charge also alleged that the District failed to participate in impasse procedures in
good faith by publishing an update on negotiations which stated that the District had proposed
multi-year salary increases during post-impasse mediation. According to the Association, the
District never made such a proposal and furthermore had violated the confidentiality
of
mediation by publicly discussing its proposal. The Board agent found the charge failed to
establish that the District had not presented such a salary proposal to the mediator or that the
District had breached any duty
of
confidentiality.
Regarding the retaliation allegation, the Board agent found that the May
7,
2007 letter
directing Barbetti to produce the information was not adverse to her nor was it issued for an
improper purpose. As for the May 10, 2007 letter
of
reprimand, the Board agent found the
charge failed to establish a nexus between the letter and Barbetti's protected activity. 4 The
Board agent did not address the interference allegation based on these same facts.
The Association's Appeal
On December 18, 2007, the Association filed a timely appeal
of
the partial dismissal.
The Association argues that the District's premature declaration
of
impasse was a per se
violation
of
its duty to bargain because it "frustrated negotiations completely." Alternatively,
the Association contends that the charge established bad faith under the "totality of the
5
TThe Board agent also dismissed an allegation that a June 7, 2007 letter to Barbetti from
the District's counsel was issued in retaliation for Barbetti's protected activity. 	On appeal, the
Association states it withdrew that allegation in the amended charge. Accordingly, the
allegation regarding the June 7, 2007 letter is not before the Board on appeal.

conduct" test. The main thrust of the Association's argument on this issue, however, is that the
Board agent improperly credited the District's factual allegations over those in the charge.
In its appeal, the Association abandons its argument that the District failed to
participate in impasse procedures in good faith by publishing the negotiations update. Instead,
the Association relies exclusively on the fact that the District failed to withdraw its request for
impasse determination after the Association expressed a desire to negotiate a successor
agreement. According to the Association, this conduct "demonstrated bad faith and misuse of
the PERB impasse proceedings."
As for the retaliation allegation, the Association argues that Barbetti's statements at the
May 3, 2007 school board meeting were protected because they concerned teacher evaluations.
The Association then contends that the District's reasons for issuing the May 7 and 10, 2007
letters were pretextual and, alternatively, that a hearing is necessary to determine the District's
true motive for issuing the letters.
DISCUSSION
The charge alleged that the District violated EERA section 3543.5(c) by bargaining in
bad faith over the 2007-2008 successor agreement. In determining whether a party has
bargained in bad faith, PERB utilizes either a "per se" or "totality of the conduct" test,
depending on the specific conduct involved and the effect of such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143 (Stockton).) When
a party's bargaining conduct has "a potential to frustrate negotiations and to undermine the
exclusivity of the bargaining agent," a per se violation of the duty to bargain may be found
without determining whether the party lacked a subjective intent to reach agreement. (Pajaro
Valley Unified School District (1978) PERB Decision No. 51 (Pajaro Valley).)
6
conduct" test. The main thrust
of
the Association's argument on this issue, however, is that the
Board agent improperly credited the District's factual allegations over those in the charge.
In its appeal, the Association abandons its argument that the District failed to
participate in impasse procedures in good faith by publishing the negotiations update. Instead,
the Association relies exclusively on the fact that the District failed to withdraw its request for
impasse determination after the Association expressed a desire to negotiate a successor
agreement. According to the Association, this conduct "demonstrated bad faith and misuse
of
the PERB impasse proceedings."
As for the retaliation allegation, the Association argues that Barbetti' s statements at the
May 3, 2007 school board meeting were protected because they concerned teacher evaluations.
The Association then contends that the District's reasons for issuing the May 7 and 10, 2007
letters were pretextual and, alternatively, that a hearing is necessary to determine the District's
true motive for issuing the letters.
DISCUSSION
1. 	Bad Faith Bargaining	1. 	Bad Faith Bargaining
The charge alleged that the District violated EERA section 3543.5(c) by bargaining in
bad faith over the 2007-2008 successor agreement. In determining whether a party has
bargained in bad faith, PERB utilizes either a "per se" or "totality
of
the conduct" test,
depending on the specific conduct involved and the effect
of
such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143 (Stockton).) When
a party's bargaining conduct has "a potential to frustrate negotiations and to undermine the
exclusivity of the bargaining agent," a per se violation of the duty to bargain may be found
without determining whether the party lacked a subjective intent to reach agreement. 	(Pajaro
Valley Unified School District (1978) PERB Decision No. 51 (Pajaro Valley).)
6

The Association argues that the District's declaration of impasse on the successor
agreement and request for an impasse determination from PERB constituted a per se violation
of the District's duty to bargain. This is so, the Association asserts, because "[the immediate
consequence of the District's conduct was the end of negotiations and the parties being thrust
into impasse proceedings that are not designed for a situation where there has been no
bargaining."
PERB has previously held that an untimely or otherwise unfounded declaration of
impasse is not a per se violation of the duty to bargain. (Regents of the University of
California (1985) PERB Decision No. 520-H (Regents).) In reaching this conclusion, the
Board noted that statutory impasse procedures "contemplate a continuation of the bilateral
negotiations process" with the assistance of a neutral third party. (Regents, citing Moreno
Valley Unified School District (1982) PERB Decision No. 206 (Moreno Valley).) Thus,
contrary to the Association's assertion, a declaration of impasse does not end negotiations but
instead attempts to move negotiations forward with the help of a mediator. Moreover, PERB
Regulation 32793(a) gives the Board agent only five working days from the date a request is
filed to determine whether impasse exists. Consequently, bargaining would only be interrupted
for a short period of time. (Regents.) Finally, as the Board observed in Regents: "To rule that
such a declaration of impasse is a per se unfair practice would discourage parties from using
the impasse procedures at all." For these reasons, we reaffirm that an untimely or unfounded
request for determination of impasse does not constitute a per se violation of the duty to
bargain.
The Association argues Regents is not applicable because in that case the parties
engaged in substantial bargaining before impasse was declared, whereas here the parties never
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
7
The Association argues that the District's declaration of impasse on the successor
agreement and request for an impasse determination from PERB constituted a per se violation
of the District's duty to bargain. This is so, the Association asserts, because "[t]he immediate
consequence of the District's conduct was the end of negotiations and the parties being thrust
into impasse proceedings that are not designed for a situation where there has been no
bargaining."
PERB has previously held that an untimely or otherwise unfounded declaration of
impasse is not a per se violation of the duty to bargain. (Regents of the University of
California (1985) PERB Decision No. 520-H (Regents).) In reaching this conclusion, the
Board noted that statutory impasse procedures "contemplate a continuation of the bilateral
negotiations process" with the assistance of a neutral third party. (Regents, citing Moreno
Valley Unified School District (1982) PERB Decision No. 206 (Moreno Valley).) Thus,
contrary to the Association's assertion, a declaration of impasse does not end negotiations but
instead attempts to move negotiations forward with the help of a mediator. Moreover, PERB
Regulation 32793(a)5 gives the Board agent only five working days from the date a request is
filed to determine whether impasse exists. 	Consequently, bargaining would only be interrupted
for a short period of time. 	(Regents.) Finally, as the Board observed in Regents: "To rule that
such a declaration of impasse is a per se unfair practice would discourage parties from using
the impasse procedures at all." For these reasons, we reaffirm that an untimely or unfounded
request for determination of impasse does not constitute a per se violation of the duty to
bargain.
The Association argues Regents is not applicable because in that case the parties
engaged in substantial bargaining before impasse was declared, whereas here the parties never
5PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
7

bargained over the successor agreement. While the facts of the two cases are certainly
different, the reasoning and policy behind the Regents decision apply equally here. Thus, we
reject the Association's argument that the District's declaration of impasse was a per se
violation because it occurred before any bargaining had taken place.
Nonetheless, an unfounded declaration of impasse may be evidence of bad faith
bargaining under the "totality of the conduct" test. (Regents.) Applying this test, PERB
examines the totality of a party's bargaining conduct to determine whether there are sufficient
objective indicia of a subjective intent to participate in good faith, or conversely, of an intent to
frustrate the bargaining process. (Pajaro Valley.) Conduct that moves the parties away from
agreement, rather than toward agreement, is considered evidence of bad faith. (Id.)
Applying this standard, we find that the District's declaration of impasse and request
for impasse determination do not indicate bad faith. The charge alleged that the District
declared impasse even though no bargaining on the successor agreement had taken place and
the Association had indicated it needed more time to fashion its initial proposal. Viewed in
isolation, this conduct might indicate that the District had no intent to reach agreement on a
successor CBA.
However, when viewed in the context of the parties' ongoing bargaining relationship,
the District's conduct demonstrates an intent to move negotiations forward. It is undisputed
that the parties had reached impasse on the re-opener negotiations over salary and health
benefits just three weeks before the District filed its request. Therefore, it would be reasonable
for the District to conclude that further discussion of those topics during the ongoing
negotiations for a successor agreement would be futile. Furthermore, because salary and
health benefits are major economic issues, impasse on the successor agreement could exist
even though the parties might be able to reach agreement on other issues. (Regents.) Thus, the
8
bargained over the successor agreement. 	While the facts
of
the two cases are certainly
different, the reasoning and policy behind the Regents decision apply equally here. Thus, we
reject the Association's argument that the District's declaration
of
impasse was a per se
violation because it occurred before any bargaining had taken place.
Nonetheless, an unfounded declaration
of
impasse may be evidence
of
bad faith
bargaining under the "totality
of
the conduct" test. 	(Regents.) Applying this test, PERB
examines the totality
of
a party's bargaining conduct to determine whether there are sufficient
objective indicia
of
a subjective intent to participate in good faith, or conversely,
of
an intent to
frustrate the bargaining process. (Pajaro Valley.) Conduct that moves the parties away from
agreement, rather than toward agreement, is considered evidence
of
bad faith. 	(Id.)
Applying this standard, we find that the District's declaration
of
impasse and request
for impasse determination do not indicate bad faith. 	The charge alleged that the District
declared impasse even though no bargaining on the successor agreement had taken place and
the Association had indicated it needed more time to fashion its initial proposal. Viewed in
isolation, this conduct might indicate that the District had no intent to reach agreement on a
successor CBA.
However, when viewed in the context
of
the parties' ongoing bargaining relationship,
the District's conduct demonstrates an intent to move negotiations forward. 	It is undisputed
that the parties had reached impasse on the re-opener negotiations over salary and health
benefits just three weeks before the District filed its request. 	Therefore, it would be reasonable
for the District to conclude that further discussion of those topics during the ongoing
negotiations for a successor agreement would be futile. 	Furthermore, because salary and
health benefits are major economic issues, impasse on the successor agreement could exist
even though the parties might be able to reach agreement on other issues. (Regents.) Thus, the
8

charge alleges facts showing that the District's declaration of impasse on the successor
agreement was well-founded. Accordingly, rather than moving the parties away from
agreement, the District's impasse determination request was aimed at using the EERA impasse
procedures to help move negotiations forward.
Nevertheless, even if the District's declaration of impasse did indicate bad faith, it
would be insufficient standing alone to demonstrate a prima facie case of unlawful conduct.
Regents.) The Association must allege additional conduct by the District that, when viewed
as a whole, establishes that the District lacked a subjective intent to reach agreement on the
successor CBA. (Oakland Unified School District (1982) PERB Decision No. 275.) The
essence of a bad faith bargaining charge is that a party goes through the motions of
negotiations, but in fact is weaving otherwise unobjectionable conduct into an entangling
fabric to delay or prevent agreement. (Muroc Unified School District (1978) PERB Decision
No. 80.) Such conduct may include: recalcitrance in the scheduling of meetings, canceling
meetings, or failing to prepare for meetings (Oakland Unified School District (1983) PERB
Decision No. 326); conditioning agreement on economic matters upon prior agreement on non-
economic subjects (State of California (Department of Personnel Administration) (1998) PERB
Decision No. 1249-$); negotiator's lack of authority (Stockton); insistence on ground rules
before negotiating substantive issues (San Ysidro School District (1980) PERB Decision
No. 134); and reneging on tentative agreements the parties already have made (Charter Oak
Unified School District (1991) PERB Decision No. 873).
The charge alleged additional facts that purportedly established bad faith bargaining by
the District." First, the charge alleged that the District cancelled bargaining sessions scheduled
ese facts were originally pled in support of independent allegations of bad faith
bargaining that were later withdrawn by the Association. Nonetheless, PERB may still
consider the facts underlying the allegations as evidence of the District's intent to reach
charge alleges facts showing that the District's declaration
of
impasse on the successor
agreement was well-founded. 	Accordingly, rather than moving the parties away from
agreement, the District's impasse determination request was aimed at using the EERA impasse
procedures to help move negotiations forward.
Nevertheless, even
if
the District's declaration
of
impasse did indicate bad faith, it
would be insufficient standing alone to demonstrate a prima facie case
of
unlawful conduct.
(Regents.) The Association must allege additional conduct by the District that, when viewed
as a whole, establishes that the District lacked a subjective intent to reach agreement on the
successor CBA. (Oakland Unified School District (1982) PERB Decision No. 275.) The
essence
of
a bad faith bargaining charge is that a party goes through the motions
of
negotiations, but in fact is weaving otherwise unobjectionable conduct into an entangling
fabric to delay or prevent agreement. 	(Muroc Unified School District (1978) PERB Decision
No. 80.) Such conduct may include: 	recalcitrance in the scheduling
of
meetings, canceling
meetings, or failing to prepare for meetings (Oakland Unified School District (1983) PERB
Decision No. 326); conditioning agreement on economic matters upon prior agreement on non-
economic subjects (State
of
California (Department
of
Personnel Administration) (1998) PERB
Decision No. 1249-S); negotiator's lack
of
authority (Stockton); insistence on ground rules
before negotiating substantive issues (San Ysidro School District ( 1980) PERB Decision
No. 134); and reneging on tentative agreements the parties already have made (Charter Oak
Unified School District (1991) PERB Decision No. 873).
The charge alleged additional facts that purportedly established bad faith bargaining by
the District.6 First, the charge alleged that the District cancelled bargaining sessions scheduled
These facts were originally pled in support of independent allegations of bad faith
bargaining that were later withdrawn by the Association. Nonetheless, PERB may still
consider the facts underlying the allegations as evidence of the District's intent to reach
Th
9

for October and November, 2006.' The charge also quoted an e-mail from Hasson, the
District's lead negotiator, to Association President Barbetti asking for additional time to
review "budgetary information" and to allow the District's new superintendent and school
board time to set the District's bargaining priorities. Thus, the facts alleged in the charge show
that the District cancelled scheduled bargaining sessions so that it could better prepare for
negotiations. This does not indicate bad faith by the District.
Second, the charge alleged that the District violated bargaining ground rules by
presenting its initial successor agreement proposal during re-opener negotiations on
February 13, 2007 even though the item was not on the agenda for that session. However, the
charge provides no evidence that the ground rules prohibited discussion of subjects not listed
on the agenda for that particular session. Thus, the manner in which the District presented its
initial successor agreement proposal does not indicate bad faith by the District.
Finally, the charge alleged that the District conditioned agreement on re-opener issues
on agreement on the successor CBA. At the February 13, 2007 bargaining session, the District
presented both its initial proposal on the successor agreement as well as its responses to
Association proposals on re-opener issues. The District presented the same proposal and
responses at the February 22 bargaining session. However, the charge does not allege any
facts showing that the District tied agreement on the re-opener issues to agreement on the
successor CBA. Accordingly, this conduct fails to support a finding of bad faith bargaining.
agreement. (See North Sacramento School District (1982) PERB Decision No. 264 (North
Sacramento) [PERB may consider conduct underlying dismissed allegations when conduct is
relevant to establishing the employer's unlawful motive].)
The cancellation occurred outside the six month statute of limitations period.
However, this conduct may be considered to the extent it sheds light on the true character of
the District's bargaining conduct within the limitations period. (Sparks Nugget v. NLRB (9th
Cir. 1992) 968 F.2d 991, 995 [140 LRRM 2747]; see Trustees of the California State
University (2008) PERB Decision No. 1970-H [conduct outside of limitations period may be
used to establish unlawful motive].)
10
for October and November, 2006.7 The charge also quoted an e-mail from Hasson, the
District's lead negotiator, to Association President Barbetti asking for additional time to
review "budgetary information" and to allow the District's new superintendent and school
board time to set the District's bargaining priorities. Thus, the facts alleged in the charge show
that the District cancelled scheduled bargaining sessions so that it could better prepare for
negotiations. This does not indicate bad faith by the District.
Second, the charge alleged that the District violated bargaining ground rules by
presenting its initial successor agreement proposal during re-opener negotiations on
February 13, 2007 even though the item was not on the agenda for that session. However, the
charge provides no evidence that the ground rules prohibited discussion
of
subjects not listed
on the agenda for that particular session. Thus, the manner in which the District presented its
initial successor agreement proposal does not indicate bad faith by the District.
Finally, the charge alleged that the District conditioned agreement on re-opener issues
on agreement on the successor CBA. At the February 13, 2007 bargaining session, the District
presented both its initial proposal on the successor agreement as well as its responses to
Association proposals on re-opener issues. The District presented the same proposal and
responses at the February 22 bargaining session. However, the charge does not allege any
facts showing that the District tied agreement on the re-opener issues to agreement on the
successor CBA. Accordingly, this conduct fails to support a finding
of
bad faith bargaining.
agreement. 	(See North Sacramento School District (1982) PERB Decision No. 264 (North
Sacramento) [PERB may consider conduct underlying dismissed allegations when conduct is
relevant to establishing the employer's unlawful motive].)
7The cancellation occurred outside the six month statute of limitations period.
However, this conduct may be considered to the extent it sheds light on the true character
of
the District's bargaining conduct within the limitations period. (Sparks Nugget v. NLRB (9th
Cir. 1992) 968 F.2d 991,995 [140 LRRM 2747]; see Trustees of the California State
University (2008) PERB Decision No. 1970-H [conduct outside of limitations period may be
used to establish unlawful motive].)
10

In sum, the Association has not alleged facts establishing a prima facie case of bad faith
bargaining by the District. For this reason, the Board agent properly dismissed the bad faith
bargaining allegation.
Failure to Participate in Impasse Procedures in Good Faith
In its charge, the Association alleged that the District failed to participate in impasse
procedures in good faith because the District published a negotiations update that contained
misstatements and violated the confidentiality of mediation. On appeal, the Association has
withdrawn that basis for the allegation and now relies solely on the theory that the District's
failure to withdraw its request for impasse determination after the Association stated in writing
that it intended to bargain over the successor agreement constituted bad faith participation in
impasse procedures.
Under EERA section 3543.5(e), it is an unfair practice for an employer to refuse or fail
to participate in good faith in EERA's statutory impasse procedures. PERB's standard for
determining bad faith participation in impasse procedures is identical to its standard for
determining bad faith bargaining. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177 (Gavilan).) Therefore, we must determine whether the District's alleged
conduct was so detrimental to the impasse resolution process that it constituted a per se
violation or whether it shows the District lacked the subjective intent to participate in the
impasse procedures in good faith.
The District's failure to withdraw its request for impasse determination did not have the
potential to frustrate the statutory impasse resolution process in the same way as would a
unilateral change to a matter within the scope of bargaining. (See Moreno Valley [recognizing
unilateral change as a per se violation because such conduct "frustrates the EERA's purpose of
achieving mutual agreement" through its statutory impasse procedures].) Indeed, the District's
11
In sum, the Association has not alleged facts establishing a prima facie case
of
bad faith
bargaining by the District. For this reason, the Board agent properly dismissed the bad faith
bargaining allegation.
2.
11
2. 	Failure to Participate in Impasse Procedures in Good Faith
In its charge, the Association alleged that the District failed to participate in impasse
procedures in good faith because the District published a negotiations update that contained
misstatements and violated the confidentiality
of
mediation. 	On appeal, the Association has
withdrawn that basis for the allegation and now relies solely on the theory that the District's
failure to withdraw its request for impasse determination after the Association stated in writing
that it intended to bargain over the successor agreement constituted bad faith participation in
impasse procedures.
Under EERA section 3543.5(e), it is an unfair practice for an employer to refuse or fail
to participate in good faith in EERA's statutory impasse procedures. PERB's standard for
determining bad faith participation in impasse procedures is identical to its standard for
determining bad faith bargaining. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177 (Gavilan).) Therefore, we must determine whether the District's alleged
conduct was so detrimental to the impasse resolution process that it constituted a per se
violation or whether it shows the District lacked the subjective intent to participate in the
impasse procedures in good faith.
The District's failure to withdraw its request for impasse determination did not have the
potential to frustrate the statutory impasse resolution process in the same way as would a
unilateral change to a matter within the scope of bargaining. (See Moreno Valley [recognizing
unilateral change as a per se violation because such conduct "frustrates the EERA's purpose of
achieving mutual agreement" through its statutory impasse procedures].) Indeed, the District's

conduct indicated that it wished to proceed with the statutory impasse procedures as soon as
possible. Thus, the failure to withdraw did not constitute a per se violation of the District's
duty to participate in impasse procedures in good faith.
Nor did the failure to withdraw the request indicate the District was merely going
through the motions of the impasse procedures without a subjective intent to reach agreement.
Though the District did not withdraw its request, it did place it in abeyance to allow the
Association time to present a proposal on the successor agreement. When the Association
failed to make a proposal within several weeks, the request was taken out of abeyance so that
PERB could certify impasse and the parties could proceed to mediation. Thus, the District's
conduct is consistent with a desire to move forward with the statutory impasse procedures.
Further, even if the failure to withdraw is evidence of bad faith, under the "totality of
the conduct" test this alone is insufficient to establish a prima facie case. (Regents.) Though
the Association has withdrawn the allegations regarding the District's published negotiations
update, we may still look at the underlying facts to determine whether they establish bad faith
on the part of the District when considered along with the failure to withdraw. (North
12
conduct indicated that it wished to proceed with the statutory impasse procedures as soon as
possible. Thus, the failure to withdraw did not constitute a per se violation
of
the District's
duty to participate in impasse procedures in good faith.
Nor did the failure to withdraw the request indicate the District was merely going
through the motions
of
the impasse procedures without a subjective intent to reach agreement.
Though the District did not withdraw its request, it did place it in abeyance to allow the
Association time to present a proposal on the successor agreement. 	When the Association
failed to make a proposal within several weeks, the request was taken out
of
abeyance so that
PERB could certify impasse and the parties could proceed to mediation. Thus, the District's
conduct is consistent with a desire to move forward with the statutory impasse procedures.
Further, even
if
the failure to withdraw is evidence
of
bad faith, under the "totality
of
the conduct" test this alone is insufficient to establish a prima facie case. (Regents.) Though
the Association has withdrawn the allegations regarding the District's published negotiations
update, we may still look at the underlying facts to determine whether they establish bad faith
on the part
of
the District when considered along with the failure to withdraw. 	iliorth
Sacramento.) As alleged in the charge, the District's negotiations update stated that during	Sacramento.) As alleged in the charge, the District's negotiations update stated that during
mediation the District presented "several options for a salary proposal which included	mediation the District presented "several options for a salary proposal which included multi-	multi-
year salary increases." If, as the Association argues, this statement was a misrepresentation, it	year salary increases."
If,
as the Association argues, this statement was a misrepresentation, it
would be evidence of bad faith. (Gavilan.) However, the charge fails to establish that the	would be evidence
of
bad faith. 	(Gavilan.) However, the charge fails to establish that the
District	District did not present such a proposal to the mediator, even though the mediator may never	did not present such a proposal to the mediator, even though the mediator may never
have communicated the proposal to the Association. Moreover, the charge does not establish	have communicated the proposal to the Association. Moreover, the charge does not establish
that	that the District disclosed specific terms of the proposal or that it in any other way disclosed	the District disclosed specific terms of the proposal or that it in any other way disclosed
information that	information that the parties agreed would be kept confidential. Thus, the totality of the	the parties agreed would be kept confidential. Thus, the totality of the
District's conduct does not show that it participated in the	District's conduct does not show that it participated in the impasse procedures in bad faith.	impasse procedures in bad faith.
12

For these reasons, the charge failed to establish that the District intended to, or actually
did, frustrate the statutory impasse process in order to prevent agreement on a successor CBA.
Accordingly, the Board agent properly dismissed the allegation that the District failed to
participate in impasse procedures in good faith.
3 .
The Association argues that Barbetti engaged in protected activity by serving as
Association president and leading the union's bargaining team. Additionally, the Association
asserts Barbetti's statements at the May 3, 2007 school board meeting that District
administrators were not properly observing probationary teachers and teachers accused of
misconduct were protected by EERA.
PERB has held that serving as chapter president and participating on a union's
bargaining team are protected activities under EERA. (Klamath-Trinity Joint Unified School
District (2005) PERB Decision No. 1778.) Additionally, an employee's speech criticizing
school administration is protected if the speech is "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
13
For these reasons, the charge failed to establish that the District intended to, or actually
did, frustrate the statutory impasse process in order to prevent agreement on a successor CBA.
Accordingly, the Board agent properly dismissed the allegation that the District failed to
participate in impasse procedures in good faith.
3. 	Retaliation Against Barbetti	Retaliation Against Barbetti
To demonstrate retaliation in violation
of
EERA section	To demonstrate retaliation in violation of EERA section 3543.5(a), the Association	3543.5(a), the Association
must show that: 	(1)	must show that: (1) Barbetti exercised rights under EERA; (2) the District had knowledge of	Barbetti exercised rights under EERA; (2) the District had knowledge
of
the exercise of those rights; and (3) the District imposed or threatened to impose reprisals,	the exercise
of
those rights; and (3) the District imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained, or coerced	discriminated or threatened to discriminate, or otherwise interfered with, restrained, or coerced
Barbetti because	Barbetti because of the exercise of those rights. (Novato Unified School District (1982) PERB	
of
the exercise
of
those rights. 	iliovato Unified School District (1982) PERB
Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89	Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89
(Carlsbad).)	(Carlsbad).)
a. 	Protected Activity	a. 	Protected Activity
The Association argues that Barbetti engaged in protected activity by serving as
Association president and leading the union's bargaining team. Additionally, the Association
asserts Barbetti's statements at the May 3, 2007 school board meeting that District
administrators were not properly observing probationary teachers and teachers accused
of
misconduct were protected by EERA.
PERB has held that serving as chapter president and participating on a union's
bargaining team are protected activities under EERA. 	(Klamath-Trinity Joint Unified School
District (2005) PERB Decision No. 1778.) Additionally, an employee's speech criticizing
school administration is protected
if
the speech is "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	employee organization for the purpose of representation on matters of employer-employee
13

relations." (Rancho Santiago Community College District (1986) PERB Decision No. 602.)
However, "[speech which is related to employer-employee relations may nonetheless lose its
statutory protection where it is found to be so opprobrious, flagrant, insulting, defamatory,
insubordinate, or fraught with malice as to cause substantial disruption of or material interference
with school activities." (Id.; internal quotations and citations omitted.)
Barbetti's statements at the May 3, 2007 school board meeting addressed whether District
administrators were properly evaluating the performance of particular teachers. Thus, her
statements concerned a matter of legitimate concern to both the teachers being evaluated, whose
employment could be impacted by the evaluations, and the other teachers in the District, whose
ability to transfer or promote could be affected by retention of teachers who should not have
been retained because of misconduct or inadequate performance. Because Barbetti's statements
were not of a kind that would disrupt or interfere with school activities, they did not lose their
protected status. Therefore, the charge alleged facts establishing that Barbetti engaged in activity
protected by EERA. Further, the District had knowledge of Barbetti's protected activity because
it communicated with her in her role as Association president and bargaining team leader, and
her protected statements were made at a public meeting of the District's governing board.
The Association contends that both the May 7, 2007 letter directing Barbetti to provide
the District with specific information regarding the accusations she made at the May 3 school
board meeting and the May 10, 2007 reprimand letter based on her failure to provide that
information constituted adverse action.
In determining whether an employer's action is adverse, the Board uses an objective
test and will not rely upon the subjective reactions of the employee. (Palo Verde Unified
14	14
relations." (Rancho Santiago Community College District (1986) PERB Decision No. 602.)
However, " s]peech which
is
related to employer-employee relations may nonetheless lose its
statutory protection where it
is
found to be so opprobrious, flagrant, insulting, defamatory,
insubordinate, or fraught with malice as to cause substantial disruption
of
or material interference
with school activities." (Id.; internal quotations and citations omitted.)
[
Barbetti's statements at the May 3, 2007 school board meeting addressed whether District
administrators were properly evaluating the performance
of
particular teachers. Thus, her
statements concerned a matter
of
legitimate concern to both the teachers being evaluated, whose
employment could be impacted by the evaluations, and the other teachers in the District, whose
ability to transfer or promote could be affected by retention
of
teachers who should not have
been retained because
of
misconduct or inadequate performance. Because Barbetti' s statements
were not
of
a kind that would disrupt or interfere with school activities, they did not lose their
protected status. Therefore, the charge alleged facts establishing that Barbetti engaged in activity
protected by EERA. Further, the District had knowledge
of
Barbetti's protected activity because
it communicated with her in her role as Association president and bargaining team leader, and
her protected statements were made at a public meeting
of
the District's governing board.
b. 	Adverse Action	b . 	Adverse Action
The Association contends that both the May 7, 2007 letter directing Barbetti to provide
the District with specific information regarding the accusations she made at the May 3 school
board meeting and the May I 0, 2007 reprimand letter based on her failure to provide that
information constituted adverse action.
In determining whether an employer's action is adverse, the Board uses an objective
test and will not rely upon the subjective reactions of the employee. (Palo Verde Unified

School District (1988) PERB Decision No. 689.) In a later decision, the Board further
explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864;
emphasis added; fn. omitted.)
PERB has long held that a letter of reprimand is an adverse action. (San Mateo County
Office of Education (2008) PERB Decision No. 1946 (San Mateo); Oakdale Union Elementary
School District (1998) PERB Decision No. 1246.) Additionally, a memorandum that does not
impose discipline but merely threatens discipline at a future time has been found to be an
adverse action. (Los Angeles Unified School District (2007) PERB Decision No. 1930.)
The May 7, 2007 letter directed Barbetti to provide District Superintendent Cotterell
with the "specific teacher names and school assignments" for each of the accusations Barbetti
made at the May 3 school board meeting. The letter requested those names by the close of
business on May 9, 2007. It did not indicate that Barbetti's failure to provide the information
by that time would subject her to discipline. The letter did, however, state that because
Barbetti had disclosed confidential information at the board meeting, she would be required to
The May 10, 2007 letter, on the other hand, was clearly an adverse action. The letter
stated that Barbetti's failure to provide Cotterell with the requested information constituted
insubordination. The letter further said that if Barbetti did not provide the information by the
15
School District (1988) PERB Decision No. 689.) In a later decision, the Board further
explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864;
emphasis added; fn. omitted.)
PERB has long held that a letter
of
reprimand is an adverse action. 	(San Mateo County
Office
of
Education (2008) PERB Decision No. 1946 (San Mateo); Oakdale Union Elementary
School District (1998) PERB Decision No. 1246.) Additionally, a memorandum that does not
impose discipline but merely threatens discipline at a future time has been found to be an
adverse action. 	(Los Angeles Unified School District (2007) PERB Decision No. 1930.)
The May 7, 2007 letter directed Barbetti to provide District Superintendent Cotterell
with the "specific teacher names and school assignments" for each
of
the accusations Barbetti
made at the May 3 school board meeting. The letter requested those names by the close
of
business on May 9, 2007. 	It did not indicate that Barbetti's failure to provide the information
by that time would subject her to discipline. The letter did, however, state that because
Barbetti had disclosed confidential information at the board meeting, she would be required to
sign "a statement of confidentiality in any future employee situations that require you to be	sign "a statement
of
confidentiality in any future employee situations that require you to be
present." While a violation of the terms of a statement of confidentiality might subject an	present." While a violation
of
the terms
of
a statement
of
confidentiality might subject an
employee to discipline,	employee to discipline, such a consequence is not mentioned in the letter. Accordingly, we	such a consequence is not mentioned in the letter. Accordingly, we
find that the May 7, 2007 letter was not an adverse action.	find that the May 7, 2007 letter was not an adverse action.
The May 10, 2007 letter, on the other hand, was clearly an adverse action. The letter
stated that Barbetti's failure to provide Cotterell with the requested information constituted
insubordination. The letter further said that if Barbetti did not provide the information by the
15

end of the following day, the letter would be placed in Barbetti's personnel file. Because the
letter gave Barbetti a chance to avoid discipline, it did not constitute an adverse action at the
time it was issued. (County of Merced (2008) PERB Decision No. 1975-M.) However, the
charge does not allege that Barbetti ever provided the information and it is therefore reasonable
to infer that the letter was eventually placed in her personnel file. Once this occurred, the
May 10, 2007 letter constituted an adverse action.
To establish a prima facie case of retaliation, the Association must demonstrate a
"nexus" between Barbetti's protected activity and the District's adverse actions. In other words,
the Association must show that the District acted with discriminatory intent. Because direct
evidence of discriminatory intent is rarely possible, the Board has held that "unlawful motive can
be established by circumstantial evidence and inferred from the record as a whole." (Novato.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento), 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 (Trustees of the California State University (1990) PERB Decision
16
end
of
the following day, the letter would be placed in Barbetti's personnel file. 	Because the
letter gave Barbetti a chance to avoid discipline, it did not constitute an adverse action at the
time it was issued. (County
of
Merced (2008) PERB Decision No. 1975-M.) However, the
charge does not allege that Barbetti ever provided the information and it
is
therefore reasonable
to infer that the letter was eventually placed in her personnel file. 	Once this occurred, the
May 10, 2007 letter constituted an adverse action.
c. 	Nexus	c. 	Nexus
To establish a prima facie case
of
retaliation, the Association must demonstrate a
"nexus" between Barbetti's protected activity and the District's adverse actions. In other words,
the Association must show that the District acted with discriminatory intent. Because direct
evidence
of
discriminatory intent
is
rarely possible, the Board has held that "unlawful motive can
be established by circumstantial evidence and inferred from the record as a whole." (Novato.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento), 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 (Trustees of the California State University (1990) PERB Decision
16

No. 805-H); (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 (Mcfarland Unified School
District (1990) PERB Decision No. 786); (6) employer animosity towards union activists
(Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any
other facts that might demonstrate the employer's unlawful motive (Novato; North
Sacramento).
The timing of the May 10, 2007, letter of reprimand, just one week after Barbetti spoke
at the school board meeting, strongly supports an inference of unlawful motive. Nonetheless,
the charge does not allege facts to establish any of the other nexus factors. The Association
asserts "no other District employee has been required to provide information concerning
statements made at a school board meeting, or threatened with discipline for failing to do so."
Yet the charge alleges no facts showing that another employee who accused District
administration of misconduct was treated differently than Barbetti. (See San Mateo [rejecting
an argument for disparate treatment when the charging party failed to present evidence about
similarly situated employees].) The Association also states that the District departed from
established procedure in reprimanding Barbetti for her failure to provide the information.
However, because the charge does not set forth the District's established procedure for
reprimanding employees, there is insufficient evidence to show that the District departed from
that procedure. (Trustees of the California State University (Sacramento) (2005) PERB Decision
No. 1740-H.) Accordingly, the Association has failed to establish a nexus between Barbetti's
May 10, 2007 reprimand and her protected activity.
17	17
No. 805-H); (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 (McFarland Unified School
District (1990) PERB Decision No. 786); (
6)
employer animosity towards union activists
(Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any
other facts that might demonstrate the employer's unlawful motive (Novato; North
Sacramento).
The timing
of
the May 10, 2007, letter
of
reprimand, just one week after Barbetti spoke
at the school board meeting, strongly supports an inference
of
unlawful motive. Nonetheless,
the charge does not allege facts to establish any
of
the other nexus factors. 	The Association
asserts "no other District employee has been required to provide information concerning
statements made at a school board meeting, or threatened with discipline for failing to do so."
Yet the charge alleges no facts showing that another employee who accused District
administration
of
misconduct was treated differently than Barbetti. (See San Mateo [rejecting
an argument for disparate treatment when the charging party failed to present evidence about
similarly situated employees].) The Association also states that the District departed from
established procedure in reprimanding Barbetti for her failure to provide the information.
However, because the charge does not set forth the District's established procedure for
reprimanding employees, there is insufficient evidence to show that the District departed from
that procedure. (Trustees of the California State University (Sacramento) (2005) PERB Decision
No. 1740-H.) Accordingly, the Association has failed to establish a nexus between Barbetti's
May 10, 2007 reprimand and her protected activity.

For the reasons above, the charge did not establish that the District reprimanded
Barbetti on May 10, 2007 because of her protected activity. Thus, the Board agent properly
dismissed the retaliation allegation for failure to state a prima facie case.
4 .
In addition to its retaliation claim, the Association alleged in the charge that the May 7
and 10, 2007 letters interfered with Barbetti's and the Association's rights under EERA. The
Board agent did not address this allegation in the warning or dismissal letters nor did the
Association object to the Board agent's failure to do so. Nonetheless, the Board may consider
the interference allegation on appeal because it arises from the same facts as the retaliation
allegation. (Chula Vista Elementary School District (2003) PERB Decision No. 1557; see
ABC Unified School District (1991) PERB Decision No. 831b [the Board may decide an
unappealed issue that is "inextricably intertwined" with an issue that has been appealed].)
The test for whether a respondent has interfered with the rights of employees under
EERA does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. "[IIn order to establish a prima facie case of
unlawful interference, the charging party must establish that the respondent's conduct tends to
or does result in some harm to employee rights granted under EERA." (State of California
(Department of Developmental Services) (1983) PERB Decision No. 344-S [citing Carlsbad].)
In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a finding
ppeal, the Association argues that the District's reasons for the reprimand were
pretextual or, in the alternative, that the District had "mixed motives" for the reprimand. As
the Association correctly notes, both of these are factual determinations to be made by an ALJ
following an evidentiary hearing. However, these issues only come into play when the charge
establishes a prima facie case of retaliation. (E.g., Oakland Unified School District (2007)
PERB Decision No. 1880 ["If the charging party establishes a prima facie case of retaliation, the
burden then shifts to the employer to prove that its action(s) would have been the same despite
the protected activity."].) Because the Association's charge failed to state a prima facie case of
retaliation, it is unnecessary to consider pretext or mixed motive in this case.
18
For the reasons above, the charge did not establish that the District reprimanded
Barbetti on May 10, 2007 because
of
her protected activity. Thus, the Board agent properly
dismissed the retaliation allegation for failure to state a prima facie case. 8
4. 	Interference with EERA Rights	Interference with EERA Rights
In addition to its retaliation claim, the Association alleged in the charge that the May 7
and 10, 2007 letters interfered with Barbetti's and the Association's rights under EERA. The
Board agent did not address this allegation in the warning or dismissal letters nor did the
Association object to the Board agent's failure to do so. Nonetheless, the Board may consider
the interference allegation on appeal because it arises from the same facts as the retaliation
allegation. 	(Chula Vista Elementary School District (2003) PERB Decision No. 1557; see
ABC Unified School District (1991) PERB Decision No. 831b [the Board may decide an
unappealed issue that is "inextricably intertwined" with an issue that has been appealed].)
The test for whether a respondent has interfered with the rights
of
employees under
EERA does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. "[I]n order to establish a prima facie case
of
unlawful interference, the charging party must establish that the respondent's conduct tends to
or does result in some harm to employee rights granted under EERA." (State
of
California
(Department of Developmental Services) (1983) PERB Decision No. 344-S [citing Carlsbad].)
In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a finding
18
OOn	n aappeal, the Association argues that the District's reasons for the reprimand were
pretextual or, in the alternative, that the District had "mixed motives" for the reprimand. As
the Association correctly notes, both
of
these are factual determinations to be made by an ALJ
following an evidentiary hearing. However, these issues only come into play when the charge
establishes a prima facie case of retaliation. (E.g., Oakland Unified School District (2007)
PERB Decision No. 1880
["If
the charging party establishes a prima facie case of retaliation, the
burden then shifts to the employer to prove that its action(s) would have been the same despite
the protected activity."].) Because the Association's charge failed to state a prima facie case of
retaliation, it is unnecessary to consider pretext or mixed motive in this case.

of interference does not require evidence that the employee actually felt threatened or
intimidated or was in fact discouraged from participating in protected activity.
The Association's argument on this issue appears to be based on the assumption that the
District reprimanded Barbetti for her protected conduct of speaking at the May 3, 2007 school
board meeting. Discipline of an employee for engaging in protected activity interferes with the
employee's protected rights under EERA because it chills participation in protected activity.
(Alisal Union Elementary School District (1998) PERB Decision No. 1248.) However, the
May 10, 2007 letter of reprimand shows that Barbetti was reprimanded for failing to comply
with Superintendent Cotterell's directive to provide information related to the accusations
Barbetti made at the school board meeting, not for the protected activity of making the
accusations themselves. Further, it is unreasonable to believe that an employer would not seek
information necessary to investigate accusations of misconduct from the individual making the
accusations or that an employer would not discipline an employee for disobeying a direct
order. Thus, neither the directive to provide the information nor the reprimand for
insubordination chilled, or would tend to chill, Barbetti's exercise of her right to speak on
issues of employer-employee relations. (See Carmichael Recreation and Park District (2008)
PERB Decision No. 1953-M [no interference when employee's belief that employer conduct
was threatening or retaliatory is unreasonable].) Consequently, though the Board agent did not
dismiss the charge on this ground, dismissal was proper because the charge failed to state a
prima facie case of interference.
19	19
of
interference does not require evidence that the employee actually felt threatened or
intimidated or was in fact discouraged from participating in protected activity.
The Association's argument on this issue appears to be based on the assumption that the
District reprimanded Barbetti for her protected conduct
of
speaking at the May 3, 2007 school
board meeting. Discipline
of
an employee for engaging in protected activity interferes with the
employee's protected rights under EERA because it chills participation in protected activity.
(Alisal Union Elementary School District (1998) PERB Decision No. 1248.) However, the
May 10, 2007 letter
of
reprimand shows that Barbetti was reprimanded for failing to comply
with Superintendent Cotterell's directive to provide information related to the accusations
Barbetti made at the school board meeting, not for the protected activity
of
making the
accusations themselves. Further, it is unreasonable to believe that an employer would not seek
information necessary to investigate accusations
of
misconduct from the individual making the
accusations or that an employer would not discipline an employee for disobeying a direct
order. 	Thus, neither the directive to provide the information nor the reprimand for
insubordination chilled, or would tend to chill, Barbetti's exercise
of
her right to speak on
issues
of
employer-employee relations. 	(See Carmichael Recreation and Park District (2008)
PERB Decision No. 1953-M [no interference when employee's belief that employer conduct
was threatening or retaliatory is unreasonable].) Consequently, though the Board agent did not
dismiss the charge on this ground, dismissal was proper because the charge failed to state a
prima facie case
of
interference.

ORDER
The partial dismissal of the unfair practice charge in Case No. LA-CE-5090-E is hereby
AFFIRMED.
Members Mckeag and Wesley joined in this Decision.
20	20
ORDER
The partial dismissal
of
the unfair practice charge in Case No. LA-CE-5090-E is hereby
AFFIRMED.
Members McKeag and Wesley joined in this Decision.