Alvord Unified School District (PERB 2021E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
V.
ALVORD UNIFIED SCHOOL DISTRICT,
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHN BUSSMAN,
Charging Party,
V.
ALVORD UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5158-E
PERB Decision No. 2021
April 30, 2009
PERB Decision No. 2021
Appearances: 	John Bussman, on his own behalf; Thompson & Colegate by Kurt E. Yaeger,
Attorney, for Alvord Unified School District.
Before McKeag, Wesley and Dowdin Calvillo, Members.
DECISION
WESLEY, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by John Bussman (Bussman) of a Board agent's dismissal
(attached) of his unfair practice charge. 	The charge alleged that the Alvord Unified School
District (District) violated the Educational Employment Relations Act (EERA)
Before McKeag, Wesley and Dowdin Calvillo, Members.
DECISION
1 by changing
his teaching assignment and failing to provide him with the teacher's edition textbook for his
new class. 	The charge alleged that this conduct constituted reprisal for protected activity and
interference with the rights of employees in violation ofEERA section 3 543 .S(a).
The Board has reviewed the entire record in this matter, including but not limited to the
unfair practice charge, the Board agent's warning and dismissal letters, Bussman' s appeal and
the District's response. Based on this review, the Board finds the Board agent's warning and
1 EERA is codified at Government Code section 3540 et seq.
JOHN BUSSMAN,
Charging Party, 	Case No. LA-CE-5158-E
April 30, 2009
Respondent.
Appearances: John Bussman, on his own behalf, Thompson & Colegate by Kurt E. Yaeger,
Attorney, for Alvord Unified School District.
WESLEY, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by John Bussman (Bussman) of a Board agent's dismissal
(attached) of his unfair practice charge. The charge alleged that the Alvord Unified School
District (District) violated the Educational Employment Relations Act (EERA) by changing
his teaching assignment and failing to provide him with the teacher's edition textbook for his
new class. The charge alleged that this conduct constituted reprisal for protected activity and
interference with the rights of employees in violation of EERA section 3543.5(a).
The Board has reviewed the entire record in this matter, including but not limited to the
unfair practice charge, the Board agent's warning and dismissal letters, Bussman's appeal and
the District's response. Based on this review, the Board finds the Board agent's warning and
EERA is codified at Government Code section 3540 et seq.

dismissal letters to be a correct statement
of
the law and well reasoned, and therefore adopts
them as the decision
of
the Board itself, as supplemented by the discussion below.
DISCUSSION
In his appeal, Bussman, for the first time, cites several new communications between
the District and the Alvord Educators' Association which he claims demonstrate that the
2	2
The unfair practice charge in Case No. LA-CE-5158-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
District had knowledge of his protected activity. Bussman also provides additional details
regarding the impact of the new class assignment.
Pursuant to PERB Regulation 32635(b)," "Unless good cause is shown, a charging
party may not present on appeal new charge allegations or new supporting evidence." It is
clear from the appeal that Bussman was aware of the newly provided information prior to
filing his charge. Bussman asserts that his former legal representative advised him not to
submit all of his documentation during the charge investigation stage. However, the warning
letter expressly directs a charging party to submit "all the facts and allegations you wish to
make." (Emphasis in original.) Bussman's knowing failure to provide all the information he
had to the Board agent for consideration, does not demonstrate good cause. Accordingly, the
Board did not consider the new evidence submitted on appeal.
ORDER
dismissal letters to be a correct statement of the law and well reasoned, and therefore adopts
them as the decision of the Board itself, as supplemented by the discussion below.
DISCUSSION
In his appeal, Bussman, for the first time, cites several new communications between
the District and the Alvord Educators' Association which he claims demonstrate that the
District had knowledge
of
his protected activity. Bussman also provides additional details
regarding the impact
of
the new class assignment.
Pursuant to PERB Regulation 32635(b),2 "Unless good cause is shown, a charging
party may not present on appeal new charge allegations or new supporting evidence." It is
clear from the appeal that Bussman was aware
of
the newly provided information prior to
filing his charge. Bussman asserts that his former legal representative advised him not to
submit all
of
his documentation during the charge investigation stage. However, the warning
letter expressly directs a charging party to submit "all the facts and allegations you wish to
make." (Emphasis in original.) Bussman's knowing failure to provide all the information he
had to the Board agent for consideration, does not demonstrate good cause. Accordingly, the
Board did not consider the new evidence submitted on appeal.
ORDER
The unfair practice charge in Case No. LA-CE-5158-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Dowdin Calvillo joined in this Decision.
2
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOAR
Nandita Murthy, Attorney
Kodam & Associates Law Office
41880 Kalmia Street, Suite 115
Murrieta, CA 92562
Re: 	John Bussman v. Alvord Unified School District
Unfair Practice Charge No. LA-CE-5158-E
DISMISSAL LETTER
Dear Ms. Murthy:
ARNOLD SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 22, 2008. John Bussman (Bussman or Charging Party)
alleges that the Alvord Unified School District (District or Respondent) violated the
Educational Employment Relations Act (EERA or Act) 	by: (1) retaliating against an
employee based on his union membership and (2) interfering with an employee's protected
rights.
Charging Party was informed in the attached Warning Letter dated November 25, 2008, that
the above-referenced charge did not state a prima facie case. You were advised that,
iftherewere any factual inaccuracies or additional facts that would correct the deficiencies explained
in that letter, you should amend the charge. 	You were further advised that, unless you
amended the charge to state a prima facie case or withdrew it prior to December 2, 2008, the
charge would be dismissed.
On December
1,
2008 you requested and were granted an extension
of
time in which to file an
amended charge and on December 31, 2008 you filed a First Amended Charge.
Factual Background as Amended
Bussman has been employed with the District as a high school history/government teacher
since 2001. His duties
in
that capacity "held the consistent pattern
of
teaching require that he
teach high school students generally on two subjects per semester."
The Alvord Educator's Association (AEA) is, and at all times relevant to this charge has been,
the recognized employee organization and exclusive representative for the certificated
employees
of
the District. In 2005-2006, the District and AEA were in negotiations for a new
PUBLIC EMPLOYMENT RELATIONS BOARDD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
January 9, 2009
Nandita Murthy, Attorney
Kodam & Associates Law Office
41880 Kalmia Street, Suite 115
Murrieta, CA 92562
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
January 9, 2009
Re: 	John Bussman v. Alvord Unified School District
Unfair Practice Charge No. LA-CE-5158-E
DISMISSAL LETTER
Dear Ms. Murthy:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 22, 2008. John Bussman (Bussman or Charging Party)
alleges that the Alvord Unified School District (District or Respondent) violated the
Educational Employment Relations Act (EERA or Act)'
1by: (1) retaliating against an
employee based on his union membership and (2) interfering with an employee's protected
rights.
Charging Party was informed in the attached Warning Letter dated November 25, 2008, that
the above-referenced charge did not state a prima facie case. You were advised that, if there
were any factual inaccuracies or additional facts that would correct the deficiencies explained
in that letter, you should amend the charge. You were further advised that, unless you
amended the charge to state a prima facie case or withdrew it prior to December 2, 2008, the
charge would be dismissed.
On December 1, 2008 you requested and were granted an extension of time in which to file an
amended charge and on December 31, 2008 you filed a First Amended Charge.
Factual Background as Amended
Bussman has been employed with the District as a high school history/government teacher
since 2001. His duties in that capacity "held the consistent pattern of teaching require that he
teach high school students generally on two subjects per semester."
The Alvord Educator's Association (AEA) is, and at all times relevant to this charge has been,
the recognized employee organization and exclusive representative for the certificated
employees of the District. In 2005-2006, the District and AEA were in negotiations for a new
1 EERA	ERA is codified at Government Code section 3540 et seq. The text of the EERA and	is codified at Government Code section 3540 et seq. The text of the EERA and
the	the Board's Regulations may be found on the Internet at	Board's Regulations may be found on the Internet at
E
www.perb.ca.gov.	www.perb.ca.gov.

LA-CE-5158-E
January 9, 2009
Page 2
(
contract. In early October 2006, AEA announced that a contract had been reached between the
parties, but did not provide details
of
the contract to its members.
On or about October 11, 2006, Bussman questioned AEA representative Meg Decker (Decker)
about the contract. At all relevant times herein, Decker was a teacher at Norte Vista High
School, Department Chair
of
Social Studies at Norte Vista High School, Union official for
AEA and a bargaining spokesperson for AEA. Allegedly, Decker stated that Bussman "should
not worry about the inequity
of
the contract as it was this or just minimal increases." Decker
stated that "it was a good deal."
contract. In early October 2006, AEA announced that a contract had been reached between the
parties, but did not provide details of the contract to its members.
Prior to the ratification vote by the AEA membership, Bussman learned some details
of
the
contract. According to the charge, part
of
the contract was that teachers "with 3-14 years
of
experience would have their salaries step level brought back two notches while those with 19
or more years or more
of
experience would be unaffected. Additionally, AEA members with
two or less years would be shifted back to level one."
On or about October 11, 2006, Bussman questioned AEA representative Meg Decker (Decker)
about the contract. At all relevant times herein, Decker was a teacher at Norte Vista High
School, Department Chair of Social Studies at Norte Vista High School, Union official for
AEA and a bargaining spokesperson for AEA. Allegedly, Decker stated that Bussman "should
not worry about the inequity of the contract as it was this or just minimal increases." Decker
stated that "it was a good deal."
On or about October 12, 2006, Bussman met with Decker and other AEA representatives.
During the meeting, "it was discovered that new employees under the contract would receive
positioning based on their years
of
experience while those working for the District would be
two steps behind."
On or about October 23, 2006, Bussman forwarded a letter to Decker and another AEA
Representative, Craig Adams (Adams), expressing his concerns about the contract.
After receiving no response from AEA, Bussman contacted the California Teacher's
Association (CTA) and forwarded his October 23rd letter to CTA Representatives Karen Kyne
(Kyne) and Bruce Matlock (Matlock). Bussman was then "referred to Barbara Kerr with
CTA."
On December 7, 2006, Kerr informed Bussman that "[CTA] could not intervene."
After receiving no response from AEA, Bussman contacted the California Teacher's
Association (CTA) and forwarded his October 23rd letter to CTA Representatives Karen Kyne
(Kyne) and Bruce Matlock (Matlock). Bussman was then "referred to Barbara Kerr with
CTA."
On December 7, 2006, Kerr informed Bussman that "[CTA] could not intervene."
During the week
of
December 17, 2006, Kyne told Bussman that "the local association has to
first be approached before CTA can step in."
On or about January 30, 2007, Bussman contacted Decker about having AEA represent him on
the violations in the contract. According to the charge, "[AEA] declined to represent
[Bussman] and in fact [was] very hostile towards him."
In or about March 2007, AEA advised Bussman and other AEA members "that a new contract
had been reached."
On or about March 16, 2007, Bussman again raised his concerns about violations of the
Education Code and "other inequities contained in the contract" but was "shouted down" by
AEA representatives.
LA-CE-5158-E
January 9, 2009
Page 2
Prior to the ratification vote by the AEA membership, Bussman learned some details of the
contract. According to the charge, part of the contract was that teachers "with 3-14 years of
experience would have their salaries step level brought back two notches while those with 19
or more years or more of experience would be unaffected. Additionally, AEA members with
two or less years would be shifted back to level one."
On or about October 12, 2006, Bussman met with Decker and other AEA representatives.
During the meeting, "it was discovered that new employees under the contract would receive
positioning based on their years of experience while those working for the District would be
two steps behind."
On or about October 23, 2006, Bussman forwarded a letter to Decker and another AEA
Representative, Craig Adams (Adams), expressing his concerns about the contract.
During the week of December 17, 2006, Kyne told Bussman that "the local association has to
first be approached before CTA can step in."
On or about January 30, 2007, Bussman contacted Decker about having AEA represent him on
the violations in the contract. According to the charge, "[AEA] declined to represent
[Bussman] and in fact [was] very hostile towards him."
In or about March 2007, AEA advised Bussman and other AEA members "that a new contract
had been reached."
On or about March 16, 2007, Bussman again raised his concerns about violations of the
Education Code and "other inequities contained in the contract" but was "shouted down" by
AEA representatives.

LA-CE-5158-E
January 9, 2009
Page 3
LA-CE-5158-E
January 9, 2009
Page 3
(
On or about March 21, 2007, Bussman was initially denied access to a meeting and "Adams
attempted to give [sic] [Bussman] out." Afterwards, a CTA representative advised AEA
of
the
"illegalities
of
both contracts" but AEA "continued to deny such violations and stated the vote
would continue."
On or about March 21, 2007, Bussman was initially denied access to a meeting and "Adams
attempted to give [sic] [Bussman] out." Afterwards, a CTA representative advised AEA of the
"illegalities of both contracts" but AEA "continued to deny such violations and stated the vote
would continue."
On or about March 26, 2007, new District hires were advised by AEA and the District that they
would have to "pay back a portion
of
their current salary." In addition, the charge alleges that
Adams then "improperly and illegally laid blame on [Bussman] to teachers who had to
payback their salary."
On or about April 13, 2007, CTA agreed to provide Bussman with legal counsel and provided
him with the requisite authorization forms.
On or about April 20, 2007, Bussman was "advised
of
further disparaging remarks by
Respondents Adams and Decker."
In or about May 2007, Bussman met with CTA legal counsel Marianne Reinhold (Reinhold)
Between June 2007 and August 2007, Bussman attempted to reach CTA and specifically
Reinhold, however, CTA allegedly failed to respond.
On or about August 10, 2007, Bussman received a letter sent by AEA to the District requesting
that the District "meet with AEA members to fix the contracts."
On or about August 16, 2007, Bussman received a welcome letter from District Principle
Santos Campos advising him that
ifhe
had not yet received a notice
of
a schedule change, then
his schedule would remain the same. At the time Bussman received the August
16
letter, he
had not received any notice
of
a schedule change.
In or about May 2007, Bussman met with CTA legal counsel Marianne Reinhold (Reinhold)
and was advised that she would be filing a lawsuit later in the month on his behalf.
On or about June 19, 2007, Bussman was advised by CTA that they were "awaiting approval
of
legal assistance even though such was given on April 13, 2007."
Between June 2007 and August 2007, Bussman attempted to reach CTA and specifically
Reinhold, however, CTA allegedly failed to respond.
On or about August 10, 2007, Bussman received a letter sent by AEA to the District requesting
that the District "meet with AEA members to fix the contracts."
On or about August 16, 2007, Bussman received a welcome letter from District Principle
Santos Campos advising him that if he had not yet received a notice of a schedule change, then
his schedule would remain the same. At the time Bussman received the August 16 letter, he
had not received any notice of a schedule change.
According to the amended charge, Social Science department members typically were told by
Decker prior to the end
of
the prior school year that they could expect the same class
assignments for the upcoming school year.
On or about August 23, 2007, Bussman received notice of a schedule change from the District.
According to the amended charge, Bussman had taught three sections
of
American
Government and two sections
of
AP US History for the past three years. His revised schedule
contained two sections of American Government, two sections of AP US History and one
section of US History. 	The amended charge states that "[a]lthough A.P. U.S. History and U.S.
History both contain similar terms, they are completely different courses. There are different
textbooks, pacing guides, assignments, and tests for each of these classes."
On or about March 26, 2007, new District hires were advised by AEA and the District that they
would have to "pay back a portion of their current salary." In addition, the charge alleges that
Adams then "improperly and illegally laid blame on [Bussman] to teachers who had to pay
back their salary."
On or about April 13, 2007, CTA agreed to provide Bussman with legal counsel and provided
him with the requisite authorization forms.
On or about April 20, 2007, Bussman was "advised of further disparaging remarks by
Respondents Adams and Decker."
and was advised that she would be filing a lawsuit later in the month on his behalf.
On or about June 19, 2007, Bussman was advised by CTA that they were "awaiting approval
of legal assistance even though such was given on April 13, 2007."
According to the amended charge, Social Science department members typically were told by
Decker prior to the end of the prior school year that they could expect the same class
assignments for the upcoming school year.
On or about August 23, 2007, Bussman received notice of a schedule change from the District.
According to the amended charge, Bussman had taught three sections of American
Government and two sections of AP US History for the past three years. His revised schedule
contained two sections of American Government, two sections of AP US History and one
section of US History. The amended charge states that "[allthough A.P. U.S. History and U.S.
History both contain similar terms, they are completely different courses. There are different
textbooks, pacing guides, assignments, and tests for each of these classes."

LA-CE-5158-E
January 9, 2009
Page 4
LA-CE-5158-E
January 9, 2009
Page 4
The amended charge further states that although Bussman' s "new" schedule was not beyond
his capabilities, his new schedule required three classes to prepare for daily and "could have
easily been remedied to everyone's satisfaction."
On or about August 27, 2007, Bussman met with AEA officials regarding the "tardy
assignment change but to no avail."
In addition, the amended charge states that during the months
of
August, September, and
October 2007, "Campos and Decker failed to provide basic class resources, such as a teacher's
edition textbook, for Bussman's newly assigned course." According to the amended charge,
Bussman made a direct request to Campos for resources at the September 2007 Social Science
Department meeting. Bussman made a second request for the resources to Decker at the
October 2007 Social Science Department meeting. 	On October 30, 2007, Bussman made a
third request for the resources to Superintendent Kathy Wright.
In September 2007, CTA and their legal counsel Reinhold responded to and advised Bussman
that "they are refusing to properly represent [him] as required."
Discussion
1.
Discussion
Charging Party's Burden
of
Proof	1 .
As previously stated in the attached Warning Letter, PERB Regulation 32615(a)(5)2 requires,
inter alia, that an unfair practice charge include a "clear and concise statement
of
the facts and
conduct alleged to constitute an unfair practice." The charging party's burden includes
alleging the "who, what, when, where and how"
of
an unfair practice. (State
of
California
(Department
of
Food and Agriculture) (1994) PERB Decision No. 1071-S, citing United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions
are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District
(1991) PERB Decision No. 873.)
2. 	Discrimination/Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in 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; (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
2PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
The amended charge further states that although Bussman's "new" schedule was not beyond
his capabilities, his new schedule required three classes to prepare for daily and "could have
easily been remedied to everyone's satisfaction."
On or about August 27, 2007, Bussman met with AEA officials regarding the "tardy
assignment change but to no avail."
In addition, the amended charge states that during the months of August, September, and
October 2007, "Campos and Decker failed to provide basic class resources, such as a teacher's
edition textbook, for Bussman's newly assigned course." According to the amended charge,
Bussman made a direct request to Campos for resources at the September 2007 Social Science
Department meeting. Bussman made a second request for the resources to Decker at the
October 2007 Social Science Department meeting. On October 30, 2007, Bussman made a
third request for the resources to Superintendent Kathy Wright.
In September 2007, CTA and their legal counsel Reinhold responded to and advised Bussman
that "they are refusing to properly represent [him] as required."
Charging Party's Burden of Proof
As previously stated in the attached Warning Letter, PERB Regulation 32615(a)(5) requires,
inter alia, that an unfair practice charge include a "clear and concise statement of the facts and
conduct alleged to constitute an unfair practice." The charging party's burden includes
alleging the "who, what, when, where and how" of an unfair practice. (State of California
(Department of Food and Agriculture) (1994) PERB Decision No. 1071-S, citing United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions
are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District
(1991) PERB Decision No. 873.)
2. 	Discrimination/Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in violation
of EERA section 3543.5(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; (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
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-5158-E
January 9, 2009
Page 5
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; footnote
omitted.)
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; footnote
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), 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,
131
Cal.App.3d 416); (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,
55
Cal.App.3d 553); (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; San Leandro, supra,
55
Cal.App.3d
553); (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 (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. 	iliorth Sacramento School
District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
a.
	Protected Activity
In the instant case, Charging Party appears to have engaged in protected activity by raising
concerns about the contract negotiations between the District and AEA. (See Los Angeles
Unified School District (2003) PERB Decision No. 1552 [an employee's complaint concerning
an issue impacting employees generally was protected].)
b. 	Knowledge of the Employer
Charging Party still does not allege any facts showing that an agent of the District had actual
knowledge of Charging Party's alleged protected activities sufficient to meet his burden as
LA-CE-5158-E
January 9, 2009
Page 5
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;
Campbell, supra, 131 Cal.App.3d 416); (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, 55 Cal.App.3d 553); (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; San Leandro, supra, 55 Cal.App.3d
553); (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 (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, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
a. 	Protected Activity
In the instant case, Charging Party appears to have engaged in protected activity by raising
concerns about the contract negotiations between the District and AEA. (See Los Angeles
Unified School District (2003) PERB Decision No. 1552 [an employee's complaint concerning
an issue impacting employees generally was protected].)
b. 	Knowledge of the Employer
Charging Party still does not allege any facts showing that an agent of the District had actual
knowledge of Charging Party's alleged protected activities sufficient to meet his burden as

LA-CE-5158-E
January
9,
2009
Page 6
stated in Ragsdale, supra, PERB Decision 944. The amended charge appears to allege that
Decker, who had knowledge ofBussman's activity, was an agent
of
the District since she was
also the Department Chair
of
Social Studies at Norte Vista High School. Specifically,
Charging Party states that he questioned Decker about the contract between AEA and the
District on October 11, 2006, was involved in meetings with AEA and Decker on October 12,
2006, and sent a letter to Adams and Decker expressing his concerns about the contract on
October 23, 2006. Bussman then directed his concerns to CTA until he contacted Decker
again on January 30, 2007.
The Board has held that an employer may be held responsible for acts
of
even a rank-and-file
employee, acting as its agent where: the employer instigated, encouraged, ratified, or condoned
such activity; where the employee had actual or apparent authority to act for his/her principal;
where the employer held him/her out to other employees as being "clothed with supervisory
authority," and where other employees could reasonably believe that he/she was speaking and
acting on behalf
of
management. 	(Moreland Elementary School District (1982) PERB
Decision No. 227 citing Rexart Color Chemical Co. (1979) 246 NLRB No. 40 and NLRB v.
American Thread Co. (1953) 204 F.2d 161; Los Angeles Community College District (1982)
PERB Decision No. 252; and Amerace Corporation. Esna Division (1976) 225 NLRB No. 159,
at pp. 1096.)
Here, however, Charging Party has provided no evidence to establish that Decker was serving
as an agent or representative
of
the District. Rather, Charging Party specifically stated that
Decker was an AEA official and bargaining spokesman. Therefore, such communications
between Charging Party and Decker cannot, without more, establish employer knowledge for
purposes
of
establishing a prima facie case
of
discrimination.
The first communication between Bussman and Campos or any other District representative,
according to the amended charge, occurred on August 16, 2007 when Campos sent a welcome
letter to Bussman. Subsequently, Bussman communicated with Campos when he made a direct
request for resources to Campos at the September 2007 Social Science Department meeting.
However, neither the August 16 nor the September exchange between Bussman and Campos
amount to employer knowledge since the amended charge does not allege that Bussman
expressed any concerns about the contract negotiations between the District and AEA during
these exchanges.
b. 	Adverse Action
Furthermore, the amended charge fails to provide any facts demonstrating that any adverse
action was taken against Charging Party.
As evidence of adverse action, the amended charge first states that on or about August 23,
2007, Bussman received notice of a schedule change from the Di~trict. According to the
amended charge, Bussman had taught three sections of American Government and two
sections of AP US History for the past three years. His revised schedule contained two
LA-CE-5158-E
January 9, 2009
Page 6
stated in Ragsdale, supra, PERB Decision 944. The amended charge appears to allege that
Decker, who had knowledge of Bussman's activity, was an agent of the District since she was
also the Department Chair of Social Studies at Norte Vista High School. Specifically,
Charging Party states that he questioned Decker about the contract between AEA and the
District on October 11, 2006, was involved in meetings with AEA and Decker on October 12,
2006, and sent a letter to Adams and Decker expressing his concerns about the contract on
October 23, 2006. Bussman then directed his concerns to CTA until he contacted Decker
again on January 30, 2007.
The Board has held that an employer may be held responsible for acts of even a rank-and-file
employee, acting as its agent where: the employer instigated, encouraged, ratified, or condoned
such activity; where the employee had actual or apparent authority to act for his/her principal;
where the employer held him/her out to other employees as being "clothed with supervisory
authority," and where other employees could reasonably believe that he/she was speaking and
acting on behalf of management. (Moreland Elementary School District (1982) PERB
Decision No. 227 citing Rexart Color Chemical Co. (1979) 246 NLRB No. 40 and NLRB v.
American Thread Co. (1953) 204 F.2d 161; Los Angeles Community College District (1982)
PERB Decision No. 252; and Amerace Corporation. Esna Division (1976) 225 NLRB No. 159,
at pp. 1096.)
Here, however, Charging Party has provided no evidence to establish that Decker was serving
as an agent or representative of the District. Rather, Charging Party specifically stated that
Decker was an AEA official and bargaining spokesman. Therefore, such communications
between Charging Party and Decker cannot, without more, establish employer knowledge for
purposes of establishing a prima facie case of discrimination.
The first communication between Bussman and Campos or any other District representative,
according to the amended charge, occurred on August 16, 2007 when Campos sent a welcome
letter to Bussman. Subsequently, Bussman communicated with Campos when he made a direct
request for resources to Campos at the September 2007 Social Science Department meeting.
However, neither the August 16 nor the September exchange between Bussman and Campos
amount to employer knowledge since the amended charge does not allege that Bussman
expressed any concerns about the contract negotiations between the District and AEA during
these exchanges.
b . 	Adverse Action
Furthermore, the amended charge fails to provide any facts demonstrating that any adverse
action was taken against Charging Party.
As evidence of adverse action, the amended charge first states that on or about August 23,
2007, Bussman received notice of a schedule change from the District. According to the
amended charge, Bussman had taught three sections of American Government and two
sections of AP US History for the past three years. His revised schedule contained two

LA-CE-5158-E
January 9, 2009
Page 7
(
sections
of
American Government, two sections
of
AP US History and one section
of
US
History and required three classes to prepare for daily instead
of
two.
As stated above, the	As stated above, the Board must use an objective reasonable person standard in evaluating	Board must use an objective reasonable person standard in evaluating
whether there was adverse action. Where an employee's duties and compensation are the same	whether there was adverse action. Where an employee's duties and compensation are the same
in transfer	in transfer situations, the employee must present facts demonstrating that a reasonable employee	situations, the employee must present facts demonstrating that a reasonable employee
would consider the transfer an adverse	would consider the transfer an adverse action. (Compton Unified School District (2003) PERB	action. (Compton Unified School District (2003) PERB
Decision No. 1518.) It appears that even though no "transfer" occurred, Bussman continues to	Decision No. 1518.)
It
appears that even though no "transfer" occurred, Bussman continues to
be paid the same salary and to teach the same number of classes he was previously assigned	be paid the same salary and to teach the same number
of
classes he was previously assigned
despite his schedule change. Moreover, the Board has held that increased preparation time	despite his schedule change. Moreover, the Board has held that increased preparation time
accompanying an involuntary transfer is also not	accompanying an involuntary transfer is also not necessarily supportive of finding of adverse	necessarily supportive
of
finding
of
adverse
action. 	(Newark	action. (Newark Unified School District (1991) PERB Decision No. 864.) There is no	'	
Unified
as'	
School District (1991) PERB Decision No. 864.) There is no
information provided 	to the reasons this	information provided as to the reasons this different class should be considered an adverse	different class should be considered an adverse
action. Therefore,	action. Therefore, Charging Party has not established a prima facie case that the District acted	Charging Party has not established a prima facie case that the District acted
adversely when it changed his schedule.
Also as evidence
of
adverse action, the amended charge states that during the months
of
August, September, October 2007, "Campos and Decker failed to provide basic class
resources, such as a teacher's edition textbook, for Bussman's newly assigned course."
According to the amended charge, Bussman made three requests for the resources to Campos,
Decker and Superintendent Kathy Wright. However, this allegation, without more, is
insufficient to establish a prima facie case that the District acted adversely by failing to provide
a teacher's edition textbook.	
It
is not clear how a reasonable person under the same
circumstances would consider the action to have an adverse impact on the employee's
employment in the same circumstances. Therefore, Charging Party has not established that the
District acted adversely when it failed to provide him with the resources he requested.
c.
	Nexus
Yet, even
if
it is assumed for the sake
of
argument that the change in schedule or the failure to
provide resources constitutes an adverse action, Charging Party has still not provided
information demonstrating that the District took such action because he voiced concerns to his
Union about the provision in the contract. Charging Party does not present any information
demonstrating disparate treatment
of
Charging Party; the District's departure from established
procedures and standards; inconsistent or contradictory justifications for the District's actions;
or that the District conducted an inadequate investigation. Thus, this allegation fails to allege a
prima facie case
of
discrimination and/or retaliation under EERA and will be dismissed.
2. 	Interference
The test for whether a respondent has interfered with the rights
of
employees under the EERA
does not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. In State
of
California (Department of Developmental Services)
(1983) PERB Decision No. 344-S, citing Carlsbad Unified School District (1979) PERB
C
LA-CE-5158-E
January 9, 2009
Page 7
sections of American Government, two sections of AP US History and one section of US
History and required three classes to prepare for daily instead of two.
adversely when it changed his schedule.
Also as evidence of adverse action, the amended charge states that during the months of
August, September, October 2007, "Campos and Decker failed to provide basic class
resources, such as a teacher's edition textbook, for Bussman's newly assigned course."
According to the amended charge, Bussman made three requests for the resources to Campos,
Decker and Superintendent Kathy Wright. However, this allegation, without more, is
insufficient to establish a prima facie case that the District acted adversely by failing to provide
a teacher's edition textbook. It is not clear how a reasonable person under the same
circumstances would consider the action to have an adverse impact on the employee's
employment in the same circumstances. Therefore, Charging Party has not established that the
District acted adversely when it failed to provide him with the resources he requested.
C. 	Nexus
Yet, even if it is assumed for the sake of argument that the change in schedule or the failure to
provide resources constitutes an adverse action, Charging Party has still not provided
information demonstrating that the District took such action because he voiced concerns to his
Union about the provision in the contract. Charging Party does not present any information
demonstrating disparate treatment of Charging Party; the District's departure from established
procedures and standards; inconsistent or contradictory justifications for the District's actions;
or that the District conducted an inadequate investigation. Thus, this allegation fails to allege a
prima facie case of discrimination and/or retaliation under EERA and will be dismissed.
2. 	Interference
The test for whether a respondent has interfered with the rights of employees under the EERA
does not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. In State of California (Department of Developmental Services)
(1983) PERB Decision No. 344-S, citing Carlsbad Unified School District (1979) PERB

LA-CE-5158-E
January 9, 2009
Page 8
(
Decision No. 89 and Service Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106, the Board described the standard as follows:
[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.
Under the above-described test, a violation may only be found
if
EERA provides the claimed
rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a
finding
of
coercion does not require evidence that the employee actually felt threatened or
intimidated or was in fact discouraged from participating in protected activity.
Charging Party has also failed to meet his burden
of
proving that the District's actions harmed
employee rights, constituting unlawful interference.
Charging Party has also failed to meet his burden of proving that the District's actions harmed
employee rights, constituting unlawful interference.
Bussman is a bargaining unit employee represented by AEA, and a public school employee
covered by the EERA. Bussman also engaged in possible protected activity by raising
concerns about the contract negotiations between the District and AEA. While it seems that
Charging Party might be alleging that the District's schedule change and/or failure to provide
educational resources created a chilling effect on his participation in protected activity,
Charging Party has provided no evidence that such action in any way inhibited, or would tend
to inhibit, his expression
of
concern over the negotiations between AEA and the District.
Accordingly, the charge must be dismissed as it fails to demonstrate that the District's action
resulted in any harm to employee rights under the EERA.
Right to Appeal	Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service
of
this dismissal. (Cal. Code Regs, tit.
8,
sec. 32635(a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies
of
all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also 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
PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number
of
copies and proof of service, in the U.S. mail. (Cal. Code Regs, tit. 8,
secs. 32135(6), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
LA-CE-5158-E
January 9, 2009
Page 8
Decision No. 89 and Service Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106, the Board described the standard as follows:
[In 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.
Under the above-described test, a violation may only be found if EERA provides the claimed
rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a
finding of coercion does not require evidence that the employee actually felt threatened or
intimidated or was in fact discouraged from participating in protected activity.
Bussman is a bargaining unit employee represented by AEA, and a public school employee
covered by the EERA. Bussman also engaged in possible protected activity by raising
concerns about the contract negotiations between the District and AEA. While it seems that
Charging Party might be alleging that the District's schedule change and/or failure to provide
educational resources created a chilling effect on his participation in protected activity,
Charging Party has provided no evidence that such action in any way inhibited, or would tend
to inhibit, his expression of concern over the negotiations between AEA and the District.
Accordingly, the charge must be dismissed as it fails to demonstrate that the District's action
resulted in any harm to employee rights under the EERA.
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, sec. 32635(a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also 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 PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)

LA-CE-5158-E
January 9, 2009
Page 9
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs, tit.
8,
sec. 32635(b).)
Service
Extension
of
Time
LA-CE-5158-E
January 9, 2009
Page 9
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs, tit. 8, sec. 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, sec. 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
Cal. Code Regs, tit. 8, sec. 32135(c).)
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. 	(See Cal. Code Regs., tit. 8, sec. 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed .. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit.
8,
sec. 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.)
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.)

LA-CE-5158-E
January 9, 2009
Page
10
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMIR.
BOGERT
General Counsel
~
Attachment
LA-CE-5158-E
January 9, 2009
Page 10
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMIR. BOGERT
General Counsel
BE
Katharine Nyman
Regional Attorney
~----------
	K
Regional
At
Attachment
cc: Kurt E. Yaeger	cc: Kurt E. Yaeger

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
November 25, 2008
Nandita Murthy, Attorney
Kodam & Associates Law Office
41880 Kalmia Street, Suite 115
Murrieta, CA 92562
Re: 	John Bussman v. Alvord Unified School District
Unfair Practice Charge No. LA-CE-5158-E
WARNING LETTER
Dear Ms. Murthy:
ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-63 77
November 25, 2008
Nandita Murthy, Attorney
Kodam & Associates Law Office
41880 Kalmia Street, Suite 115
Murrieta, CA 92562
Re: John Bussman v. Alvord Unified School District
Unfair Practice Charge No. LA-CE-5158-E
WARNING LETTER
Dear Ms. Murthy:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 22, 2008. John Bussman (Bussman or Charging Party)
alleges that the Alvord Unified School District (District or Respondent) violated the
Educational Employment Relations Act (EERA or Act) 1 by: (1) retaliating against an
employee based on his union membership and (2) interfering with an employee's protected
rights.
Factual Background	Factual Background
Bussman has been employed with the District as a high school history/government teacher
since 2001.
The Alvord Educator's Association (AEA) is, and at all times relevant to this charge has been,
the recognized employee organization and exclusive representative for the certificated
employees of the District. In 2005-2006, the District and AEA were in negotiations for a new
contract. In early October 2006, AEA announced that a contract had been reached between the
parties, but did not provide details of the contract to its members.
Prior to the ratification vote by the AEA membership, Bussman learned some details of the
contract. According to the charge, part of the contract was that teachers "with 3-14 years of
experience would have their salaries step level brought back two notches while those with 19
or more years or more of experience would be unaffected. Additionally, AEA members with
two or less years would be shifted back to level one."
On or about October 11, 2006, Bussman questioned AEA representative Meg Decker (Decker)
about the contract. Allegedly, Decker stated that Bussman "should not worry about the
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
C	STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 22, 2008. John Bussman (Bussman or Charging Party)
alleges that the Alvord Unified School District (District or Respondent) violated the
Educational Employment Relations Act (EERA or Act)' by: (1) retaliating against an
employee based on his union membership and (2) interfering with an employee's protected
rights.
Bussman has been employed with the District as a high school history/government teacher
since 2001.
The Alvord Educator's Association (AEA) is, and at all times relevant to this charge has been,
the recognized employee organization and exclusive representative for the certificated
employees of the District. In 2005-2006, the District and AEA were in negotiations for a new
contract. In early October 2006, AEA announced that a contract had been reached between the
parties, but did not provide details of the contract to its members.
Prior to the ratification vote by the AEA membership, Bussman learned some details of the
contract. According to the charge, part of the contract was that teachers "with 3-14 years of
experience would have their salaries step level brought back two notches while those with 19
or more years or more of experience would be unaffected. Additionally, AEA members with
two or less years would be shifted back to level one."
On or about October 11, 2006, Bussman questioned AEA representative Meg Decker (Decker)
about the contract. Allegedly, Decker stated that Bussman "should not worry about the
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
1

LA-CE-5158-E
November 25, 2008
Page 2
inequity
of
the contract as it was this or just minimal increases." Decker stated that "it was a
good deal."
After receiving no response from AEA, Bussman contacted the California Teacher's
Association (CTA) and forwarded his October 23rd letter to CTA Representatives Karen Kyne
(Kyne) and Bruce Matlock (Matlock). Bussman was then "referred
to
Barbara Kerr with
CTA."
On December 7, 2006, Kerr informed Bussman that "[CTA] could not intervene."
On or about January 30, 2007, Bussman contacted Decker about having AEA represent him on
the violations in the contract. According to the charge, "[AEA] declined
to
represent
[Bussman] and in fact [was] very hostile towards him."
LA-CE-5158-E
November 25, 2008
Page 2
inequity of the contract as it was this or just minimal increases." Decker stated that "it was a
good deal."
On or about October 12, 2006, Bussman met with Decker and other AEA representatives.
During the meeting, "it was discovered that new employees under the contract would receive
positioning based on their years of experience while those working for the District would be
two steps behind."
On or about October 23, 2006, Bussman forwarded a letter to Decker and another AEA
Representative, Craig Adams (Adams), expressing his concerns about the contract.
On or about October 12, 2006, Bussman met with Decker and other AEA representatives.
During the meeting, "it was discovered that new employees under the contract would receive
positioning based on their years
of
experience while those working for the District would be
two steps behind."
On or about October 23, 2006, Bussman forwarded a letter to Decker and another AEA
Representative, Craig Adams (Adams), expressing his concerns about the contract.
After receiving no response from AEA, Bussman contacted the California Teacher's
Association (CTA) and forwarded his October 23rd letter to CTA Representatives Karen Kyne
(Kyne) and Bruce Matlock (Matlock). Bussman was then "referred to Barbara Kerr with
CTA."
On December 7, 2006, Kerr informed Bussman that "[CTA] could not intervene."
During the week of December 17, 2006, Kyne told Bussman that "the local association has to
first be approached before CTA can step in."
During the week
of
December 17, 2006, Kyne told Bussman that "the local association has to
first be approached before CTA can step in."
On or about January 30, 2007, Bussman contacted Decker about having AEA represent him on
the violations in the contract. According to the charge, "[AEA] declined to represent
[Bussman] and in fact [was] very hostile towards him."
In or about March 2007, AEA advised Bussman and other AEA members "that a new contract
had been reached."
On or about March 16, 2007, Bussman again raised his concerns about violations of the
Education Code and "other inequities contained in the contract" but was "shouted down" by
AEA representatives.
On or about March 21, 2007, Bussman was initially denied access to a meeting and "Adams
attempted to give [sic] [Bussman] out." Afterwards, a CTA representative advised AEA of the
"illegalities of both contracts" but AEA "continued to deny such violations and stated the vote
would continue."
On or about March 26, 2007, new District hires were advised by AEA and the District that they
would have to "pay back a portion of their current salary." In addition, the charge alleges that
Adams then "improperly and illegally laid blame on [Bussman] to teachers who had to pay
back their salary."
On or about April 13, 2007, CTA agreed to provide Bussman with legal counsel and provided
him with the requisite authorization forms.
In or about March 2007, AEA advised Bussman and other AEA members "that a new contract
had been reached."
On or about March 16, 2007, Bussman again raised his concerns about violations
of
the
Education Code and "other inequities contained in the contract" but was "shouted down" by
AEA representatives.
On or about March 21, 2007, Bussman was initially denied access to a meeting and "Adams
attempted to give [sic] [Bussman] out." Afterwards, a CTA representative advised AEA
of
the
"illegalities of both contracts" but AEA "continued to deny such violations and stated the vote
would continue."
On or about March 26, 2007, new District hires were advised by AEA and the District that they
would have to "pay back a portion of their current salary." In addition, the charge alleges that
Adams then "improperly and illegally laid blame on [Bussman] to teachers who had to pay
back their salary."
On or about April 13, 2007, CTA agreed to provide Bussman with legal counsel and provided
him with the requisite authorization forms.

LA-CE-5158-E
November 25, 2008
Page 3
(
On or about April 20, 2007, Bussman was "advised
of
further disparaging remarks by
Respondents Adams and Decker."
In or about May 2007, Bussman met with CTA legal counsel Marianne Reinhold (Reinhold)
and was advised that she would be filing a lawsuit later in the month on his behalf.
On or about June 19, 2007, Bussman was advised by CTA that they were "awaiting approval
oflegal assistance even though such was given on April 13, 2007."
Between June 2007 and August 2007, Bussman attempted to reach CTA and specifically
Reinhold, however, CTA allegedly failed to respond.
On or about August 10, 2007, Bussman received a letter sent by AEA to the District requesting
that the District "meet with AEA members to fix the contracts."
On or about August 16, 2007, Bussman received a welcome letter from District Principle
Santos Campos advising him that
if
he had not yet received a notice
of
a schedule change, then
his schedule would remain the same. At the time Bussman received the August
16
letter, he
had not received any notice
of
a schedule change.
On or about August 10, 2007, Bussman received a letter sent by AEA to the District requesting
that the District "meet with AEA members to fix the contracts."
On or about August 16, 2007, Bussman received a welcome letter from District Principle
Santos Campos advising him that if he had not yet received a notice of a schedule change, then
his schedule would remain the same. At the time Bussman received the August 16 letter, he
had not received any notice of a schedule change.
On or about August 23, 2007, Bussman received notice
of
a schedule change from the District.
On or about August 26, 2007, Bussman demanded that CTA file a "suit on his behalf due to the
contracts to Respondent CTA but [received] no response."
On or about August 26, 2007, Bussman demanded that CTA file a "suit on his behalf due to the
contracts to Respondent CTA but [received] no response."
On or about August 27, 2007, Bussman met with AEA officials regarding the "tardy
assignment change which obviously is in retaliation as it breaches the logical mind on
assignments considering other teacher's schedules." The charge further alleges that the
District "failed and continues to fail to give [Bussman] all the tools he needs to effectively
teach" all three
of
his classes.
In September 2007, CTA and their legal counsel Reinhold, responded to and advised Bussman
that "they are refusing to properly represent [him] as required."
Discussion
1.
In September 2007, CTA and their legal counsel Reinhold, responded to and advised Bussman
that "they are refusing to properly represent [him] as required."
Discussion
Charging Party's Burden of Proof	1 .
PERB Regulation 32615(a)(5)2 requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
2PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
LA-CE-5158-E
November 25, 2008
Page 3
On or about April 20, 2007, Bussman was "advised of further disparaging remarks by
Respondents Adams and Decker."
In or about May 2007, Bussman met with CTA legal counsel Marianne Reinhold (Reinhold)
and was advised that she would be filing a lawsuit later in the month on his behalf.
On or about June 19, 2007, Bussman was advised by CTA that they were "awaiting approval
of legal assistance even though such was given on April 13, 2007."
Between June 2007 and August 2007, Bussman attempted to reach CTA and specifically
Reinhold, however, CTA allegedly failed to respond.
On or about August 23, 2007, Bussman received notice of a schedule change from the District.
On or about August 27, 2007, Bussman met with AEA officials regarding the "tardy
assignment change which obviously is in retaliation as it breaches the logical mind on
assignments considering other teacher's schedules." The charge further alleges that the
District "failed and continues to fail to give [Bussman] all the tools he needs to effectively
teach" all three of his classes.
Charging Party's Burden of Proof
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how" of an
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-5158-E
November 25, 2008
Page 4
unfair practice. 	(State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
The charging party's burden also includes alleging facts showing that the unfair practice	The charging party's burden also includes alleging facts showing that the unfair practice
charge	charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months	was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision	prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited	No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice	from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito	occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)	and Vector Control	,
	District v. Public Employment Relations	. 	Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known, of	The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB	the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)	Decision No. 1177.)
2. 	Discrimination/Retaliation	2. 	Discrimination/Retaliation
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.)
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
LA-CE-5158-E
November 25, 2008
Page 4
To demonstrate that an employer discriminated or retaliated against an employee in violation
of EERA section 3543.5(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; (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.) In a
later decision, the Board further explained that:
To demonstrate that an employer discriminated or retaliated against an employee in violation
of EERA section 3543.5(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; (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.) 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.)
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

LA-CE-5158-E
November 25, 2008
Page 5
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S;
Campbell, supra, 131 Cal.App.3d 416); (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, 55 Cal.App.3d 553); (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; San Leandro, supra, 55 Cal.App.3d
553); (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 (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, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
a. 	Protected Activity/Knowledge of the Employer
In the instant case, Charging Party appears to have engaged in protected activity by raising
concerns about the contract negotiations between the District and AEA. (See Los Angeles
Unified School District (2003) PERB Decision No. 1552 [an employee's complaint concerning
an issue impacting employees generally was protected].) However, Charging Party does not
allege any facts showing that an agent of the District had actual knowledge of Charging Party's
alleged protected activities sufficient to meet his burden as stated in Ragsdale, supra, PERB
Decision 944. Specifically, Charging Party has failed to set forth any facts establishing "who"
at the District was aware of Charging Party's concerns and "when" they became aware of such
concerns.
b. 	Adverse Action	b .
Furthermore, the charge fails to provide any facts demonstrating that any adverse action was
taken against Charging Party. 	While Charging Party states that the District's schedule change
and failure to give Charging Party "all the tools necessary to effectively teach" constitute
adverse action, these allegations, without more, are conclusory. Again, Charging Party has not
provided any information to meet his burden as stated in Ragsdale, supra, PERB Decision 944.
For example, Charging Party has failed to show: (1) what Charging Party's original schedule
was; (2) how Charging Party's schedule was changed; (3) what tools Charging Party required;
(4) which tools were not provided; (5) when the District refused to provide the requested tools;
(6) or who at the District failed to provided the requested tools. Therefore, Charging Party has
not established that the District acted adversely when it "changed his schedule" or failed to
provide him with tools he requested.
LA-CE-5158-E
November 25, 2008
Page 5
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S;
Campbell, supra, 131 Cal.App.3d 416); (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, 55 Cal.App.3d 553); (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; San Leandro, supra, 55 Cal.App.3d
553); (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 (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, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
a. 	Protected Activity/Knowledge of the Employer
In the instant case, Charging Party appears to have engaged in protected activity by raising
concerns about the contract negotiations between the District and AEA. (See Los Angeles
Unified School District (2003) PERB Decision No. 1552 [an employee's complaint concerning
an issue impacting employees generally was protected].) However, Charging Party does not
allege any facts showing that an agent of the District had actual knowledge of Charging Party's
alleged protected activities sufficient to meet his burden as stated in Ragsdale, supra, PERB
Decision 944. Specifically, Charging Party has failed to set forth any facts establishing "who"
at the District was aware of Charging Party's concerns and "when" they became aware of such
concerns.
Adverse Action
Furthermore, the charge fails to provide any facts demonstrating that any adverse action was
taken against Charging Party. While Charging Party states that the District's schedule change
and failure to give Charging Party "all the tools necessary to effectively teach" constitute
adverse action, these allegations, without more, are conclusivein, Charging Party has not
provided any information to meet his burden as stated in Ragsdale, supra, PERB Decision 944.
For example, Charging Party has failed to show: (1) what Charging Party's original schedule
was; (2) how Charging Party's schedule was changed; (3) what tools Charging Party required;
(4) which tools were not provided; (5) when the District refused to provide the requested tools;
(6) or who at the District failed to provided the requested tools. Therefore, Charging Party has
not established that the District acted adversely when it "changed his schedule" or failed to
provide him with tools he requested.

LA-CE-5158-E
November 25, 2008
Page 6
c. 	Nexus
(
Yet, even
if
it is assumed for the sake
of
argument that the change in schedule constitutes
adverse action, Charging Party has offered no information demonstrating that Charging
Party'sschedule was changed because he voiced concerns to his Union about the contract. Charging
Party does
uot
present any information demonstrating disparate treatment
of
Charging Party;
the District's departure from established procedures and standards; inconsistent or
contradictory justifications for the District's actions; or that the District conducted an
inadequate investigation. Thus, this allegation fails to allege a prima facie case
of
discrimination and/or retaliation under EERA.
2. 	Interference
The test for whether a respondent has interfered with the rights
of
employees under the
EERAdoes not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. In State
of
California (Department
of
Developmental Services)
(1983) PERB Decision No. 344-S, citing Carlsbad Unified School District (1979) PERB
Decision No. 89 and Service Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106, the Board described the standard as follows:
The test for whether a respondent has interfered with the rights of employees under the EERA
does not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. In State of California (Department of Developmental Services)
(1983) PERB Decision No. 344-S, citing Carlsbad Unified School District (1979) PERB
Decision No. 89 and Service Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106, the Board described the standard as follows:
[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
underEERA.
Under the above-described test, a violation may only be found
if
EERA provides the claimed
rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a
finding
of
coercion does not require evidence that the employee actually felt threatened or
intimidated
or
was in fact discouraged from participating in protected activity.
Charging Party has failed to meet his burden
of
proving that the District's actions harmed
employee rights, constituting unlawful interference.
Bussman is a bargaining unit employee represented by AEA, and a public employee covered
by the EERA. Bussman also engaged in possible protected activity by raising concerns about
the contract negotiations between the District and AEA. 	While it seems that Charging Party
might be alleging that the District's schedule change and/or failure to provide educational tools
created a chilling effect on his participation in protected activity, Charging Party has provided
no evidence that such action in any way inhibited his expression
of
concern over the
negotiations between AEA and the District. Accordingly, the charge must be dismissed as it
fails to demonstrate that the District's action resulted in any harm to employee rights under the
EERA.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
LA-CE-5158-E
November 25, 2008
Page 6
C. 	Nexus
Yet, even if it is assumed for the sake of argument that the change in schedule constitutes
adverse action, Charging Party has offered no information demonstrating that Charging Party's
schedule was changed because he voiced concerns to his Union about the contract. Charging
Party does not present any information demonstrating disparate treatment of Charging Party;
the District's departure from established procedures and standards; inconsistent or
contradictory justifications for the District's actions; or that the District conducted an
inadequate investigation. Thus, this allegation fails to allege a prima facie case of
discrimination and/or retaliation under EERA.
2. 	Interference
[Ijn 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.
Under the above-described test, a violation may only be found if EERA provides the claimed
rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a
finding of coercion does not require evidence that the employee actually felt threatened or
intimidated or was in fact discouraged from participating in protected activity.
Charging Party has failed to meet his burden of proving that the District's actions harmed
employee rights, constituting unlawful interference.
Bussman is a bargaining unit employee represented by AEA, and a public employee covered
by the EERA. Bussman also engaged in possible protected activity by raising concerns about
the contract negotiations between the District and AEA. While it seems that Charging Party
might be alleging that the District's schedule change and/or failure to provide educational tools
created a chilling effect on his participation in protected activity, Charging Party has provided
no evidence that such action in any way inhibited his expression of concern over the
negotiations between AEA and the District. Accordingly, the charge must be dismissed as it
fails to demonstrate that the District's action resulted in any harm to employee rights under the
EERA.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies

LA-CE-5158-E
November 25, 2008
Page 7
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand corner
of
the charge form. 	The amended charge must be
served on the Respondent's representative and the original proof
of
service must be filed with
PERB.
If
an amended charge or withdrawal is not filed on or before December 2, 2008, PERB
will dismiss your charge.	
If
you have any questions, please call me at the above telephone
number.
Sincerely,
~
.	
✓	
l_j
Kathanne
NylUi3J2'
Regional Attorney
KN
LA-CE-5158-E
November 25, 2008
Page 7
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of Charging Party. The amended charge must have the case
number written on the top right hand corner of the charge form. The amended charge must be
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before December 2, 2008, PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Sincerely,
Katharine Nyman
Regional Attorney
KN