Los Angeles Unified School District (PERB 1930E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
N. ERNEST KETTENRING,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4878-E
PERB Decision No. 	1930
November 28, 2007
Appearances: 	Geffner & Bush by Erica Deutsch, Attorney, for N. Ernest Kettenring; Kathleen
E. Collins, Associate General Counsel, for Los Angeles Unified School District.
Before Shek, McKeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(Board) on exceptions filed by N. Ernest Kettenring (Kettenring) to the proposed decision
(attached) of an administrative law judge (ALJ). 	The unfair practice charge alleged that the
Los Angeles Unified School District (District) violated the Educational Employment Relations
Act (EERA), 1 section 3543.S(a), by retaliating against Kettenring for engaging in protected
activity. 	The ALJ dismissed the charge finding that Kettenring failed to establish that the
District took adverse action against him because of his protected activity.
The Board has reviewed the entire record in this matter, including the unfair practice
charge, the ALI' s proposed decision, the hearing transcripts and exhibits, Kettenring' s
exceptions and the District's response thereto. 	The Board finds no prejudicial error in the
ALI' s proposed decision and adopts it as the decision of the Board itself except as follows:
1EERA is codified at Government Code section 3540, et seq.

The ALJ credits the testimony of Principal Jean Batey that she would have taken
the same actions against Kettenring even if he had not engaged in protected activity.
(Proposed dee., at p. 13). However, based on our adoption of the ALJ's finding that
Kettenring failed to demonstrate a nexus between his protected activity and the
District's adverse actions, we need not address whether or not the District would have
taken the same actions absent Kettenring's protected activity. Therefore we decline to
adopt that portion of the proposed decision.
ORDER
The complaint and the underlying unfair practice charge in N. Ernest Kettenring v.
Los Angeles Unified School District, Case No. LA-CE-4878-E is hereby DISMISSED.
Members Shek and McKeag joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
N. ERNEST KETTENRING,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4878-E
PROPOSED DECISION
(3/19/07)
Appearances: 	Geffner & Bush by Jesus E. Quinonez and Jonathan Cohen, Attorneys, for N.
Ernest Kettenring; Kathleen E. Collins, Associate General Counsel, for Los Angeles Unified
School District.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a teacher alleges his school district retaliated against him for protected
activities. The district denies any retaliation.
N. Ernest Kettenring (Kettenring) filed an unfair practice charge against the Los
Angeles Unified School District (District) on July 25, 2005. The General Counsel of the
Public Employment Relations Board (PERB) issued a complaint against the District on
September 27, 2005. The District filed an answer to the complaint on October 18, 2005.
PERB held infonnal settlement conferences on October 18 and November 16, 2005, but
the case was not settled. PERB held a fonnal hearing on January 31, February 1 and 3, and
March 6-7, 2006. 1 With the receipt of the final post-hearing brief on May 15, 2006, the case
was submitted for decision.
1 On February 3, 2006, the PERB complaint was amended to include additional alleged
retaliation against Kettenring.

FINDINGS OF FACT
The District is a public school employer under the Educational Employment Relations
Act (EERA).2 Kettenring is an employee under EERA.
Kettenring is a popular teacher and a forceful union activist. 	In the summer of 2005, he
got into trouble at Evans Community Adult School (Evans), where he worked. The PERB
complaint alleges that he suffered four adverse actions: 	a conference memorandum (dated July
13, 2005), another memorandum (dated July 27, 2005), a notice of unsatisfactory acts, and a
notice of suspension (both dated August 10, 2005). The central question in this case is whether
these four actions were taken because of Kettenring' s union activities and other protected
conduct.
The actions were all taken by Jean Batey (Batey), Kettenring's principal at Evans.
Batey has had mutually respectful relationships with some other union activists, but not with
Kettenring, although she testified she was not bothered by his protected conduct.
On June 13, 2005, Batey encountered another Evan staff member, whom I'll call Ms. A,
distraught and in tears. Batey took Ms. A to her office, where Ms. A said she felt she had been
harassed by Kettenring and another staff member, whom I'll call Mr. B. Batey told Ms. A to
write up her allegations, which she did that same day, in specific detail.
On the next day, June 14, 2005, Batey asked Kettenring to meet with her on June 20,
2005, to discuss Ms. A's allegations. Kettenring responded on June 20, 2005, that he was
"unavailable to meet on my own time on issues of this nature" but would "respond in due
course." On June 22, 2005, Batey asked Kettenring to meet on July 7, 2005, but the meeting
2 EERA is codified at Government Code 3540 and following.
2

was postponed so that Kettenring's representative could be present. It was ultimately held on
July 12, 2005.3
On July 13, 2005, Batey issued Kettenring a conference memorandum summarizing the
July 12 meeting. 	The memorandum stated in part:
During the conference you stated the following:
A. 	Most
of
what Ms. [A] said is untrue; some is true.
B. 	This does not constitute harassment, which is a
serious allegation.
According to the testimony at hearing, Kettenring had not specified what was true or untrue,
and Batey had not asked him. 	Batey testified that, given Kettenring's limited response to Ms.
A's
detailed allegations, she felt "there might be something there."
The memorandum concluded:
During the conference I offered you the following assistance and
guidance:
A. 	This type
of
behavior toward Ms.
[A] is unacceptable.
B. 	I suggested that you take courses in
anger management.
C. 	I gave you a copy
of
the District's
policy regarding non-discrimination.
D. 	I gave you a copy
of
the District's
policy regarding the respectful treatment
of
employees.
During the conference I issued you the following directives:
A. 	Cease and desist your harassing behavior toward
Ms. [A].
B. 	Demonstrate respectful treatment
of
coordinators
elected by your department.
C. 	Make no attempt to retaliate against Ms. [A].
Failure to follow the stated directives may result in disciplinary
action.
Batey met separately with Mr. B. The details of that meeting are not in the record.
3

If you wish to respond to this memorandum, please do so in
writing by July 21, 2005.
Kettenring did not respond by July 21, 2005. Instead, on that date, he had his unfair practice
charge mailed to PERB.
On the next day, July 22, 2005, Kettenring sent Batey a memorandum stating in part:
I told you in the July 13 [sic] meeting, and I repeat here, that I
will not follow your directive. Your directive is illogical. I
cannot cease a behavior that I have not initiated. 	I also stated that
all of the actions that Ms. [A] alleges to be harassment are not
improper activities, and that I will continue to engage in such as I
see fit. 	I am not going to modify my actions to accommodate Ms.
[A's] personal issues.
Your failure to ask me about the accuracy of Ms. [A's]
allegations and your apparent failure to conduct even a cursory
investigation before coming to your conclusion indicate a
predisposition toward prejudicial action on your part. In addition,
you have engaged in unprofessional conduct as referenced in the
California Education Code, Section 44422.
In response to your demonstrated prejudice and unprofessional
conduct, I am offering you the following assistance and guidance:
1. 	Your behavior toward union representatives
is unacceptable
2. 	I suggest you take courses in anger
management
3. 	I am providing you with a copy of the
district's policy regarding
non-discrimination ( attached)
4. 	I am providing you with a copy of the
district's policy regarding the respectful treatment
of employees (attached)
5. 	I draw your attention to the prohibition on
retaliatory action against individuals providing
union representation to Bargaining Unit Members
under the Collective Bargaining Agreement, as per
the California Government Code, Educational
Employment 	Relations Act, Section 3543.5,
Chapter 10.7, Division 4, Title 1
6. 	You should engage in no further acts of
retaliation against Mr. [B] or myself
4

Failure to follow this proffered guidance and assistance may result in further
action.
Kettenring distributed the memorandum to several Evans staff members, with his unfair
practice charge attached.
Batey responded to Kettenring on July 27, 2005, with a memorandum stating:
Your memorandum of July 22, 2005, is insubordinate. 	It is also
derogatory and defamatory.
In my conference memorandum of July 13, 2005, I directed you
to make no attempt to retaliate against Ms. [A]. I find your July
22, 2005, memorandum to be retaliatory in the extreme. It is
particularly inappropriate now that I have received notification
that Ms. [A] has filed a formal complaint and that an
investigation is underway.
You are directed to stop immediately distribution of your
memorandum of July 22, 2005, the PERB charge filed July 20,
2005, and any other derogatory or defamatory materials.
Failure to follow this directive may result in disciplinary actions
being taken against you.
Batey testified she had found Kettenring's "write-up" of her to be insubordinate. She also
believed that Ms. A's allegations should not have been publicly discussed.
Kettenring himself had earlier complained of a hostile work environment at Evans. On
March 3, 2005, he sent a memorandum to Batey stating that a staff member, whom I'll call Ms.
C, had "verbally assaulted various members of the faculty in the lunchroom." Batey asked
Kettenring to identify the witnesses and the content of the verbal assaults, which he did. 	In a
memorandum to Kettenring dated May 3, 2005, Batey stated in part:
I have interviewed and or received statements from eleven
witnesses to the incident of March 3, 2005. Based on the results
of my informal investigation, I have concluded that your
complaint has merit.
Batey met with the accused staff member, but she did not issue a conference memorandum,
because she "did not have a chance to conclude" her investigation.
5

On June 17, 2005, Batey issued the following memorandum to all Evans instructors:
It has been brought to my attention that some students have been
advised not to attend classes during the week of June 20-24. Our
ADA [Average Daily Attendance) is dependent on student
attendance which generates teacher hours for the next school
year. 	Although students are finished [with] promotional testing,
it is the responsibility of all instructors to plan activities for
students throughout your paid assignment. Your cooperation is
appreciated.
Maintaining ADA at trimester's end is especially difficult because teachers have no extra paid
time for doing grades and other paperwork. Teachers are expected to keep their students
engaged in classroom activities while the teachers themselves do paperwork.
Events that followed were accurately summarized in a conference memorandum from
Batey to Kettenring dated July 13, 2005, which stated in part:
On Monday, June 20, 2005, at 8:30 a.m., Janet MacLeod,
assistant principal, reported that there were no students in your
U.S. History/I class, nor were you in class. Rosario Galvan,
assistant principal, later observed you in the faculty lounge with a
group of instructors at 8:35 a.m.
On Monday, June 20, 2005, at about 10:05 a.m., Mr. Galvan
observed that your U.S. History/2 class was without students and
you were not present.
On Tuesday, June 21, 2005, Ms. MacLeod passed by your
classroom at 8:15 a.m., during the time of your U.S. Government
class and saw neither students nor instructor.
On Tuesday, June 21, 2005, at 10:30 a.m., Ms. MacLeod found
no students or instructor in your Consumer Economics class.
At about 11 :00 a.m. on June 21, 2005, I questioned you in the
hallway regarding the whereabouts of your students. You told me
that you had given them home study. 	I informed you that our
school could not report ADA for home study and instructed you
not to report any attendance on your rosters. You also stated that
you were following a directive from administration to submit
your grades on the due date.
6

Though we did not observe whether or not you conducted class
on Wednesday, June 22, 2005, you reported no attendance for
your students for U.S. History/I and U.S. History/2 for that day.
The memorandum summarized Kettenring's response at the conference in part as follows:
You [Kettenring] did not fail to conduct class. 	Instead, you told
your students that you were required by administration to have
class, but you would not be available to them because you needed
to prepare grades. You asked them to read the L.A. Times at
home and find something applicable to the class.
The memorandum concluded:
During the conference I issued you the following directive:
* 	Encourage your students to maintain regular attendance
throughout the entire trimester, including the last week.
If you wish to respond to this memorandum, please do so in
writing by July 21, 2005.
Kettenring apparently did not respond by the July 21 deadline.
The July 13 conference memorandum did not state that Kettenring's conduct was still
under investigation and might result in discipline. A memorandum dated June 21, 2005, from
Assistant Principal Janet Macleod to Kettenring regarding his perceived failure to conduct
class on June 20 and 21, 2005, concluded:
You are directed to plan your subject material and curriculum
accordingly to ensure that you instruct students for the full
trimester for which you are assigned and paid. 	Failure to follow
this directive may result in disciplinary action.
Like the July 13 conference memorandum, this June 21 memorandum did not indicate that
Kettenring' s past conduct might result in discipline.
In fact, however, Batey had already been discussing Kettenring's conduct with Susan
Masters (Masters), a staff relations coordinator at the District's central office. 	Masters made
no recommendation before the July 13 conference memorandum, but afterwards she
recommended that Batey issue Kettenring a notice of unsatisfactory acts and a notice of a
7

3-day suspension. Batey decided to follow the recommendation, and on August 10, 2005, she
issued the two notices, both based on Kettenring's conduct of June 20-22, 2005.
An area representative for Kettenring's union testified that it was "totally uncommon"
for the District to follow up a conference memorandum with discipline for the same conduct.
Masters, however, testified that it was "not uncommon." Batey testified that it could be
standard procedure, depending on the circumstances.
Before recommending Kettenring's discipline, Masters discussed the matter with
Santiago Jackson (Jackson), a District assistant superintendent, who found Kettenring's
conduct to be unacceptable. 	Sometime around January 2005, Kettenring had requested that the
District's inspector general investigate Jackson for fraud with respect to the reporting of time
and payroll. A colleague of Kettenring testified that he had a conversation with Jackson in
October 2005, in which Jackson said he had two problems with Kettenring:
One was he had, Mr. Jackson had heard that at some event or
some function, that Mr. Kettenring had told an administrator from
another district that he was going to get rid of his principal. And
Mr. Jackson said, well, we can't have that.
He also raised the issue of the Inspector General reports, in that
these had been damaging to the division and if Inspector General
reports continued, that there might not be a division.
Jackson did not testify. 	There is no evidence that Kettenring requested the investigation of
Jackson on behalf of the union or of other employees.
Kettenring was not the only teacher to have few students in attendance on June 20-22,
2005. When asked why she did not take action against any other teacher, Batey testified:
Because Mr. Kettenring could have encouraged his students to
come to class those three days. 	Instead he basically discouraged
them from coming by the statements that he made to me and
during the conference.
8

Batey acknowledged that Kettenring had otherwise "maintained exceptionally good student
attendance," and she was grateful for that.
Batey credibly testified that she would have taken all the same actions against
Kettenring even if he had not engaged in protected activity.
ISSUE
Did the District retaliate against Kettenring?
CONCLUSIONS OF LAW
To demonstrate a violation of EERA section 3543.S(a), the charging party must show
that: 	(1) the employee exercised rights under EERA; (2) the employer had knowledge of the
exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employee because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: 	(1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
9

employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. 	(Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) In determining whether such evidence is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Ibid.) 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; footnote omitted.]
In the present case there is no doubt that Kettenring exercised rights under BERA, both by
engaging in union activities and by filing his unfair practice charge, and that Batey knew it. 	I
note, however, that there is no evidence that Kettenring's request that Jackson be investigated
for fraud was union activity or otherwise protected conduct.4
4EERA section 3543(a) states in relevant part:
Public school employees shall have the right to form, join, and
participate in the activities of employee organizations of their

Nor do I doubt that Kettenring suffered adverse action, most obviously in the notices of
unsatisfactory acts and suspension, but also in the memoranda of July 13 and 27, 2005. These
memoranda, although not disciplinary in themselves, threatened Kettenring with disciplinary
action, and a reasonable person would find them to have an adverse impact on Kettenring' s
employment.
The central question, as noted earlier, is whether the adverse actions were taken
because of Kettenring's protected conduct. In his post-hearing brief, Kettenring argues in part
that there is direct evidence on this issue, in that Jackson, who indirectly advised Batey, was
quoted as saying he had a problem with Kettenring requesting an investigation of Jackson. As
noted above, however, there is no evidence that Kettenring's request was protected conduct.
Kettenring also argues that there is circumstantial evidence of unlawful motivation.
With regard to the July 13 conference memorandum, Kettenring argues that Batey treated him
differently and conducted no investigation. Kettenring points out that when he himself
complained of a hostile work environment, Batey had asked for details, including the identity
of witnesses, and had concluded the complaint had merit after hearing from eleven such
witnesses.
I find Kettenring's argument on this point unpersuasive. Ms. A's complaint against
Kettenring and Mr. B was quite different from Kettenring's complaint against Ms. C. Ms. A's
complaint was detailed and specific, and it identified one victim and two witnesses, Kettenring
and Mr. B themselves. 	Kettenring's complaint was less specific, and it referred to multiple
victims without identifying them. 	I find it unremarkable that Batey would want to know who
own choosing for the purpose of representation on all matters of
employer-employee relations.
11

these victims were, and what particular conduct (if any) offended them, before proceeding
further.
With regard to the investigation of Ms. A's complaint, it appears that it was Kettenring
himself who short-circuited the investigation. After Batey postponed the conference twice to
accommodate Kettenring, and after she presented him with Ms. A's detailed allegations, what
Batey heard from Kettenring was that most of the allegations were untrue but some were true.
It was reasonable for Batey to accept this as the response Kettenring chose to make, and to find
it inadequate.
Kettenring also argues that Batey treated him differently and conducted no
investigation with regard to the notices of unsatisfactory acts and suspension, because other
teachers also had few students in attendance on June 20-22, 2005. 	I find no evidence,
however, that Batey failed to consider that fact, along with Kettenring's own accounts of his
conduct. 	It was reasonable for Batey to conclude that Kettenring, while paying lip service to
District policy, actually and effectively discouraged student attendance (at the District's
expense), and that this merited disciplinary action.
Kettenring finally argues that Batey departed from District practice in issuing the
notices of unsatisfactory acts and suspension, because Kettenring had already received a
conference memorandum covering the same conduct. A union area representative did testify
that this was "totally uncommon." Kettenring argues this testimony was "unrebutted," but in
fact it was rebutted by the testimony of Batey and Masters. 	I conclude that Kettenring did not
sustain his burden of proof on this issue.
To the extent that this case implicates the character and credibility of Batey, I find her
to be a credible witness and a fair-minded person. 	I credit her testimony that she would have
12

taken all the same actions against Kettenring even if he had not engaged in protected activity.
Kettenring's unfair practice charge must therefore be dismissed.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and the underlying unfair practice charge in Case No.
LA-CE-4878-E, N. Ernest Kettenring v. Los Angeles Unified School District, are hereby
DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions.
(Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; Gov. Code sec. 11020(a).) A
document is also considered "filed" when received by facsimile transmission before the close
of business together with a Facsimile Transmission Cover Sheet which meets the requirements
of California Code of Regulations, title 8, section 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
13

U.S. mail. 	(Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8,
secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. 	Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
14
Thomas J. Allen
Administrative Law Judge