San Francisco Unified School District (PERB 2057E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED EDUCATORS OF SAN FRANCISCO,
Charging Party,
V.
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. SF-CE-2645-E
PERB Decision No. 2057
August 28, 2009
Appearances: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for United
Educators
of
San Francisco; Fagen Friedman & Fulfrost, by Joshua A. Stevens, Attorney, for
San Francisco Unified School District.
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
DOWDIN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by United Educators
of
San Francisco (UESF)
of
a Board agent's dismissal
of
its unfair practice charge. The charge alleged that the San
Francisco Unified School District (District) violated the Educational Employment Relations
Act (EERA) 1 by unilaterally changing the working conditions
of
teachers and by retaliating
against a union representative for protesting those changes. The Board agent dismissed the
charge for failure to state a prima facie case
of
an unlawful unilateral change by the District
and failure to state a prima facie case
of
retaliation.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

The Board has reviewed the dismissal and the record in light of UESF's appeal, the
District's response to the appeal and the relevant law.2 Based on this review, the Board affirms
the dismissal of the charge for the reasons discussed below.
BACKGROUND
UESF's unfair practice charge stated in its entirety:
The Charging Party is party to a Collective Bargaining
Agreement with the Respondent San Francisco Unified School
District. Jeremiah Jeffries is a Union Building Representative at
Sherman Elementary School. As part of his duties as a Building
Representative for the Union, Mr. Jeffries alerted the Union to the
fact that the Principal, Phyllis Matsuno, was making unilateral
changes in working conditions. Ms. Matsuno unilaterally
imposed a condition on teachers requiring that they provide her
with weekly lesson plans, bi-weekly student progress reports, bi-
weekly drafts for a classroom newspaper, reporting all absences
orally and in writing, prepare lesson plans teaching or celebrating
American Cultural mores in a specific way, and determined to
hold accountable Grade Level Teams for the effectiveness of all
its members. Attached herewith as Exhibit A is a copy of a letter
sent by Union representative Eric Hall to Ms. Matsuno regarding
what the Union believed to be unilaterally [sic] changes.
Attached hereto as Exhibit Bis a response by Ms. Matsuno. Mr.
Jeffries was responsible for reporting the Principal's actions to
Mr. Hall. He also contacted the faculty to explain to the faculty
that [sic] these unilateral changes and that the Union would be
protesting these changes. Principal Matsuo [sic] then sent an
electronic letter to parents deriding Mr. Jeffries for his conduct as
a Union Building [sic] Representative in having complained to
the Union and having organized teachers around these changes.
The exhibits to the unfair practice charge consist of a letter dated September 6, 2007,
from UESF to Principal Phyllis Matsuno (Matsuno) protesting "Principal' s Expectations" and
Matsuno's response dated September 21, 2007. Nothing in either letter indicates what the
In its response, the District contends that abuse of discretion is the proper standard of
review for this appeal. In Beverly Hills Unified School District (2008) PERB Decision
No. 1969 (Beverly Hills USD), the Board reaffirmed that "the Board applies a de novo standard
when reviewing a Board agent's dismissal of an unfair practice charge."
2

prior practices
of
the parties were concerning the "Principal's Expectations," nor did UESF
submit any document reflecting the "Principal's Expectations" themselves.
UESF also submitted a series
of
e-mail communications dated August 24 and 27, 2007,
between Matsuno and a parent chair
of
the school site committee that was copied to other site
committee members, including Jeremiah Jeffries (Jeffries) who also sat on this committee.
The context
of
the emails is unclear, but they appear to contain statements by both the parent
chair and Matsuno critical
of
Jeffries and referring to him as a "bully." The email exchange
included the following relevant statements:
[Parent:]
I'm
a little confused - is JJ teaching first grade? Who's
taking Kat's class? Does this mean we'll need to make program
cuts? Too bad not everyone's a team player as it hurts the kids,
in the end
....
[Matsuno:] You really put it in perspective when you used the
word "bully" last time.
	I'm
writing a case study in which the
District needs to make corrective action so this doesn't happen to
other principals over and over again. This takes more courage
than I've ever had to muster before .. .including walking the
Sunnydale housing projects, riding the bus to and from to insure
safety
of
the kids at Alvarado, etc.
	I'm
not sure the supt. will be
responsive; he talks a good game but basically it came down from
him.
[Parent:]
	...
Thank you, thank you, THANK YOU for staying in
the fight! 	Good for you for making a
stink-
I'm
sure JJ was
counting on this situation not getting daylighted the way it did.
Bullies never do like daylight thrown on their actions because
of
course it exposes them for what they really are.
	I'm
glad you're
meeting with the Supt. - I take it as a good sign that you're
meeting with him so quickly. And
I'm
glad to hear that staff is
supporting you, too!
[Matsuno:]
	...
I'm getting emails from teachers saying how
sorry they are I have to deal with JJ. It's backfiring on him
because he's crowing like a rooster. He saw Allen Lee (Prin.
of
John Yehall, who facilitated a grievance meeting here) and he
was really friendly toward him offering a handshake. Allen said
he stood there and just kept his arms crossed. I saw Myong at
McD' s for breakfast and we talked and he said he heard about JJ
3

causing problems and I briefly told him. It's going around
Central Office because I made such a stink. Jeanie Pon at first
said she couldn't arrange a meeting with the supt. because he was
too busy .... then she arranged it .... she knew we were going to talk
about it at the Adm.Union which we did. It's Sept. 7 at 2:30 to 3.
Thanks for your support. I'm sucking it up and putting up a
friendly face.
The Board agent sent UESF a warning letter indicating that the allegations of the
charge failed to state a prima facie case of unlawful unilateral change or discrimination or
reprisal. UESF did not amend the charge after being afforded the opportunity to do so. As a
result, the Board agent dismissed the charge for failure to state a prima facie case of unlawful
unilateral change or discrimination/reprisal by the District.
On appeal, UESF asserts that the conditions imposed by Matsuno were all substantial
unilateral changes in the terms and conditions of employment that changed the basis upon
which teachers can be evaluated and imposed additional duties that impact the hours worked
by employees. UESF further asserts that Matsuno retaliated against Jeffries by demeaning him
in the eyes of his colleagues and parents for having complained to the union.3 UESF contends
that, "[a]lthough it is not a formal form of discipline, being insulted because of one's activities
on behalf of an employee organization is obviously prohibited by the Educational Employment
Relations Act."
UESF also argues on appeal that the series of emails "was designed to intimidate
Mr. Jeffries and interfere with his actions for and on behalf of an employee organization. It
also had the effect ofreducing the amount of information that Mr. Jeffries and others were
prepared to share with [UESF] regarding working conditions and matters within the scope of
representation at [the school where Jeffries was employed]." It is unclear whether this
statement was intended to allege a new charge of interference with protected rights, or merely
to support the charge of discrimination/retaliation. PERB Regulation 32635(b) provides:
"Unless good cause is shown, a charging party may not present on appeal new allegations or
new supporting evidence." (PERB regs. are codified at Cal. Code of Regs., tit. 8, § 31001 et
seq.) UESF has failed to demonstrate good cause to allow presentation of a new interference
allegation on appeal; therefore, we do not consider whether a prima facie case of interference
with protected rights has been established.
4

The District contends that it has not committed an unfair labor practice because: 	(1) it
has not unilaterally changed the working conditions
of
teachers; (2) the issuance
of
expectations by a principal to classroom teachers is a managerial prerogative outside the scope
of
representation; (3) the principal issued her expectations to teachers as required by the
collective bargaining agreement between the District and UESF; and (4) UESF has not
provided any evidence to demonstrate that the email concerning Jeffries in any way interfered
with, restrained, or coerced Jeffries or any other District employee in the exercise
ofrights
guaranteed by EERA.
DISCUSSION
1.
	Unilateral Change
A public school employer's unilateral change in terms and conditions
of
employment
constitutes a "per se" violation
of
EERA section 3543.5, subdivision (c)4 if: (1) the employer
breached or altered the parties' written agreement or its own established past practice; (2) such
action was taken without giving the other party notice or an opportunity to bargain over the
change; (3) the change was not merely an isolated breach
of
the contract, but amounts to a
change in policy (i.e., it has a generalized effect or continuing impact upon bargaining unit
members' terms and conditions
of
employment); and (4) the change in policy concerns a matter
within the scope ofrepresentation. (Walnut Valley Unified School District (1981) PERB
Decision No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)
UESF argues that the "Principal's Expectations" promulgated by Matsuno constituted
unlawful unilateral changes over which the District was required to bargain. UESF has not,
however, alleged any facts establishing any written agreement or past practices concerning
written lesson plans, student progress reports, a classroom newspaper, reporting of absences,
4 EERA section 3543.5, subdivision (c) makes it unlawful for a public school employer
to "[r]efuse or fail to meet and negotiate in good faith with an exclusive representative."
5

the teaching or celebrating
of
American cultural mores, or the manner in which grade level
teams are held accountable. Therefore, UESF has failed to allege sufficient facts to show that
the District has breached a written agreement or past practice. (City
of
Commerce (2008)
PERB Decision No. 1937-M.) Accordingly, the charge fails to state a prima facie case
of
unlawful unilateral change.
Furthermore, the Board has held that the assignment
of
work is a nonnegotiable
management prerogative
if
the newly assigned work is reasonably related to existing duties
performed by employees. (City & County
of
San Francisco (2004) PERB Decision
No. 1608-M.)
If
the changes are reasonably comprehended within the existing job duties, an
assignment
of
such duties, even
if
never performed before, is not a violation. (Rio Hondo
Community College District (1982) PERB Decision No. 279.) However, as noted, UESF has
not alleged what the teachers' duties were before the change. Thus, the charge failed to
establish that the newly assigned duties fell within the scope
of
representation because they
were not reasonably comprehended within teachers' existing duties.
UESF further contends that the "Principal's Expectations" changed the basis upon
which teachers would be evaluated and imposed additional duties affecting hours worked. The
charge failed to allege any facts demonstrating that the change had an actual impact on
teachers' evaluation criteria or workday. Accordingly, UESF has not established that the
District was obligated to bargain over the effects
of
the change in duties. (Beverly Hills USD,
supra.)
2. 	Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5, subdivision (a), the charging party must show that: 	(1) the
employee exercised rights under EERA; (2) the employer had knowledge of the exercise of
6

those rights; (3) the employer took adverse action against the employee; and (4) the employer
took the action because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Campbell Municipal Employees Assn. v. City of Campbell
(1982) 131 Cal.App.3d 416 ( Campbell); San Leandro Police Officers Assn. v. City of San
Leandro (1976) 55 Cal.App.3d 553 (San Leandro).) In determining whether evidence of
adverse action is established, 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 (Palo Verde USD).) The Board has 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.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264 (North Sacramento School District)), 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; Campbell, supra); (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; San Leandro, supra);
(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;
7

San Leandro, supra); (4) the employer's cursory investigation of the employee's misconduct
(City of Torrance (2008) PERB Decision No. 1971-M; Coast Community College District
(2003) PERB Decision No. 1560); (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 (Baker
Valley Unified School District (2008) PERB Decision No. 1993; County of San Joaquin
(Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer animosity towards
union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M;
Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any other
facts that might demonstrate the employer's unlawful motive. (North Sacramento School
District, supra; Novato, supra.)
UESF asserts that Jeffries was responsible for reporting Matsuno's actions
(presumably, the issuance of the "Principal's Expectations") to UESF and that Jeffries
informed the faculty that UESF would be protesting the changes. These actions constitute
protected activity under EERA. (Simi Valley Unified School District (2004) PERB Decision
No. 1714.) However, the charge failed to allege that Matsuno or any District representative
knew that Jeffries had complained to UESF about the "Principal's Expectations," or that he
contacted other teachers. Nor do the August 24 and 27, 2007, email communications show
Matsuno had knowledge of Jeffries' protected activities. The description of Jeffries' conduct
in the emails is so vague that it cannot be determined whether the emails refer to his complaint
to UESF and contacting of other teachers or to some other conduct. Therefore, UESF has
failed to show the District knew of Jeffries' protected activity.
Moreover, the charge does not allege that the statements contained in the email
communications had any adverse impact on Jeffries' employment. UESF has provided no
support for its assertion that "being insulted because of one's activities on behalf of an
8

employee organization is obviously prohibited" by EERA. In the absence
of
facts showing the
impact
of
such statements on Jeffries' employment, the bare allegation that the employer made
disparaging remarks about an employee does not meet the standard set forth under Novato and
Palo Verde USD, supra. (Los Rios Community College District (1994) PERB Decision
No. 1048.)
UESF asserts that Matsuno sent the email in retaliation for Jeffries having engaged in
protected activity by informing UESF about the issuance
of
the "Principal's Expectations"and
told the faculty that UESF would challenge them. UESF sent a letter to Matsuno protesting the
"Principal's Expectations" on September 6, 2007. However, the charge does not state when
Jeffries complained to UESF about the changes or informed faculty that UESF would be
protesting them. Thus, it is impossible for PERB to determine whether his protected activity
occurred before or after the August 24 and 27, 2007, email communications. As a result, the
timing factor
of
the nexus requirement is not met. (See Berkeley Unified School District (2004)
PERB Decision No. 1702 [timing factor not satisfied when protected activity occurred after
adverse action].) Moreover, the charge did not allege facts to establish any
of
the other nexus
factors. 	Therefore, UESF has failed to establish a prima facie case
of
retaliation against
Jeffries for having engaged in protected activity.
In sum, the charge failed to allege facts establishing that the issuance
of
the "Principal's
Expectations" breached or altered the parties' written agreement or the District's established past
practices or that the changes fell within the scope of representation. The charge further failed
to allege facts establishing that Jeffries was subjected to any adverse employment action as a
result of having engaged in protected activity. For these reasons, the charge failed to state a
prima facie case of unlawful unilateral change or retaliation.
9

ORDER
The unfair practice charge in Case No. SF-CE-2645-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Wesley joined in this Decision.
10