Chula Vista Elementary School District (PERB 2306E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MANUEL FAUSTINO YVELLEZ,
Charging Party, Case No. LA-CE-5732-E
v. PERB Decision No. 2306
CHULA VISTA ELEMENTARY SCHOOL February 14, 2013
DISTRICT,
Respondent.

Appearances: Manuel Faustino Yvellez, on his own behalf; Fagen, Friedman & Fullfrost by
Susan B. Winkelman, Attorney, for Chula Vista Elementary School District.

Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(Board) on appeal by Manuel Faustino Yvellez (Yvellez) from the partial dismissal (attached)
of his unfair practice charge. The charge, as amended, alleges that the Chula Vista Elementary
School District (District) violated the Educational Employment Relations Act (EERA)! by
hiring the president of the Chula Vista Educators to fill the position of Director of Human

2 that thi Laat a ae POR
Resources.” The charge, as amended, alleges that this conduct constitutes a violation of EERA

' EERA is codified at Government Code section 3540 et seq. Hereafter, these sections
of the Government Code will be cited to as sections of EERA.

* The charge, as amended, also alleges that the District interfered with Yvellez’s
protected rights with respect to his use of the District’s e-mail system. This aspect of the case
was not dismissed, and therefore is not before the Board itself on appeal.

section 3543.5, subdivisions (a) and (d).3 The Office
of
the General Counsel dismissed this
aspect
of
the amended charge for failure to state a prima facie case. Yvellez filed a timely
appeal.
The Board has reviewed the record in its entirety and given full consideration to the
appeal. The gravamen
of
the allegations according to the appeal is that the District bribed a
sitting union president by hiring her for the Director
of
Human Resources position with the
intent to weaken the union; and, in so doing, caused harm to protected activities by creating a
chilling effect
of
mistrust
of
union leadership; and also, effected the representative capacity
of
the union. Notwithstanding Yvellez's conclusory declarations and sincerely-held beliefs, the
essential factual allegations in this case do not support a violation
of
EERA based on any
viable theory
of
law.
Based on our review
of
this case, we find the partial warning and dismissal letters to be
well-reasoned, adequately supported by the record and in accordance with the applicable law.
We also find that none
of
Yvellez' s assertions on appeal compels a change in the analysis
performed by the Office
of
the General Counsel
of
the legal issues raised by the factual
3 EERA section 3543.5 provides:
It is unlawful for a public school employer to do any
of
the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or 	to discriminate
'""F.'·"'H'-'•
	or
otherwise to interfere with, restrain, or coerce employees because
of their exercise
of
rights guaranteed by this chapter. For
purposes
of
this subdivision, 	includes an applicant
for employment or reemployment.
[
...
]
(d) Dominate or interfere with the formation or administration of
any employee organization, or contribute financial or other
support to it, or in any way encourage employees to join any
organization in preference to another.
2

allegations in the amended charge. Accordingly, the Board affirms the partial dismissal of the
amended charge and adopts the partial warning and dismissal letters as the decision of the
Board itself.
ORDER
The partial dismissal of the unfair practice charge in Case No. LA-CE-5732-E is hereby
AFFIRMED.
Members Huguenin and Winslow joined in this Decision.
3

STATE
OF
CALIFORNIA	
EDMUND G,
BROWN
	Governor
PUBLIC EMPLOYMENT RELATIONS BOARDLos
Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale,
CA
91203-3219
Telephone:
(8
I
8)
551-2809
Fax: (8 I
8)
551-2820
November 27, 2012
Manuel Faustino Yvellez
2621 Meade A venue
San Diego, CA 92116
Re: 	Manuel Faustino Yvellez
v.
Chula Vista Elementary School District
Unfair Practice Charge No. LA-CE-5732-E
PARTIAL DISMISSAL
Dear Mr. Yvellez:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 23, 2012. Manuel Faustino Yvellez (Charging Party)
alleges that the Chula Vista Elementary School District (District or Respondent) violated
section 3543.5
of
the Educational Employment Relations Act (EERA or Act) 1 by interfering
with Charging Party's exercise
of
rights protected under EERA and by hiring the President
of
the Chula Vista Educators' (CVE). This letter does not address allegations that the District's
conduct with respect to Charging Party's use
of
the District e-mail system interfered with
Charging Party's EERA rights.
Charging Party was informed in the attached Partial Warning Letter dated October 25, 2012,
that certain allegations contained in the charge did not state a prima facie case. Charging Party
was advised that,
if
there were any factual inaccuracies or additional facts that would correct
the deficiencies explained in that letter, Charging Party should amend the charge. Charging
Party was further advised that, unless Charging Party amended these allegations to state a
prima facie case or withdrew them prior to November 5, 2012, the allegations would be
dismissed. Charging Party requested, and the Board agent granted, an extension until
November 16, 2012, for Charging Party to file an Amended Charge. 	On November 16, 2012,
Charging Party filed an Amended Charge.
Discussion
In the Amended Charge, Charging Party alleges the District's hiring
of
former CVE President
Peg Myers (Myers) constituted
	n+o
...
-1-,,,.,,,n
	with the union's internal activities because it
weakened the union and reduced members' trust in the union. Charging Party further alleges
that the District's hiring of Myers had a chilling effect on Charging Party's and other
members' right to engage in rights protected by EERA.
1
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.

LA-CE-5732-E
November 27, 2012
Page 2
Charging Party compares the facts
of
the instant matter with the facts in Carlsbad Unified
School District (1979) PERB Decision No. 89 and City
of
Torrance (2008) PERB DecisionNo. 1971-M.
In
Carlsbad Unified School District (1979) PERB Decision No. 89, the Board found that theDistrict chilled the exercise
of
employees' rights to organize in violation
of
section 3543 .5(a)
because the District involuntarily transferred union activists and the "natural and probable
consequence" was that "other employees reasonably[] fear[ed] that similar action would
betaken against them
if
they engaged in organizing." In City
of
Torrance (2008) PERB DecisionNo. 1971-M, the Board found that the City interfered with the exercise
of
rights when it
reduced the union President's business release time and demanded that she reimburse the City
for release time she took in excess
of
three days per week over a six-month period.
In
both
of
these cases, the Board found the employer's conduct amounted to interference because theemployer's involuntary transfers
of
union activists and action for reimbursement against theunion President could chill others from engaging in protected conduct and tended to interfere
with the exercise
of
protected rights.
In the instant matter, the employer did not take any involuntary action against former
CVEPresident Myers. 	Instead, Myers voluntarily resigned from her CVE position to become a
District management employee. 	Thus, the allegations fail to demonstrate that the
employer'shiring
of
Myers would the "natural and probable consequence
of'
instilling fear in others that
if
they exercised protected rights they would be subject to involuntary transferor other chilling
conduct by the District.
In addition, and as explained in the Partial Warning Letter, neither the employer nor theunion
may dictate the opposing parties' choice
of
representative. (Yolo County Superintendent
of
Schools (1990) PERB Decision No. 838, citing San Ramon Valley Unified School District
(1982) PERB Decision No. 230.) This means CVE has no right to dictate that the District
maynot use Myers as the District's representative. 	Since the union has no right to dictate the
choice
of
the employer's representative, individual employees certainly have no right to
dispute the employer's choice
of
its own representative.
Charging Party asserts that, because he actually has suffered mistrust and the consequences
of
the District's hiring
of
Myers, 	has established the District's conduct tended to harm
Charging Pafi:y's rights under section 3543.S(a) as a matter
of
law. 	However, the test for
whether statements constitute interference or coercion depends upon whether, under the existing
circumstances, they reasonably tend to interfere or coerce
in
the exercise of guaranteed rights, not
whether the employee subjectively perceives the statements
in
that manner. (Clovis Unified School
District (1984) 	Decision 	389; see also Los Rios College Federation a/Teachers\
CFTIAFTLoca! 2279 (Deglow) (1996) PERB Decision No. 1137 [the standard for analyzing
interference
is
objective, rather than subjective].)
As also noted in the Partial Warning Letter, the Charge fails to provide information
demonstrating the District is liable for Charging Party's loss of trust in the CVE. 	Unless
Charging Party can demonstrate the District's conduct tends to interfere with the internal

LA-CE-5732-E
November 27, 2012
Page 3
activities
of
CVE ("the formation or administration
of
any employee organization ... "),
theallegations fail to demonstrate the District violated EERA by hiring former CVE President
Myers. 	(Gov. Code, § 3543, subd. (d); Santa Monica Community College District (1979)
PERB Decision No. 103; Redwoods Community College District (1987) PERB Decision No.
650 [to state a prima facie violation
of
EERA section 3543.5(d), the charging party must allege
facts which demonstrate that the employer's conduct tends to interfere with the internal
activities
of
an employee organization or tends to influence the choice between employee
organizations].)
The original and amended charge fail to state a prima facie case regarding the District's hiring
of
Ms. Myers and the allegations are hereby dismissed based on the facts and reasons set forth
herein and in the October 25, 2012 Partial Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 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. 	(PERB Regulation 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.
(PERB Regulations 32135(a) and 32130; see also Gov. Code,§ 11020, subd. (a).) A documentis
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. (PERB Regulation 32135(b),
(c) and (d); see
also
PERB Regulations 32090 and 32130.)
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
Charging 	files a timely appeal of the refusal to issue a complaint, any other party may
file with the Board an original and five (5) copies of a statement in opposition within twenty
(20) calendar days following the date of service of the appeal. 	(PERB Regulation 32635(b ).)
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-5732-E
November 27, 20
Page 4
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 PERB Regulation 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. (PERB
Regulation 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. (PERB Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
By
l
\4vb-
~
r~Mary Weiss
Senior Regional Attorney
Attachment
cc: 	Dean T. Adams, Attorney, Fagen Friedman & Fullfrost, LLP
MW
12

STATE
OF
CALIFORNIA	
EDMUND G.
BROWN
	Governor
PUBLIC EMPLOYMENT RELATIONS BOARDLos
Angeles Regional Office700
N.
Central Ave., Suite 200
Glendale,
CA
9!203-3219
Telephone
(8
I
8)
551-2809
Fax
(818) 551-2820
October 25, 2012
Manuel Yvellez
2621 Meade A venue
San Diego, CA 92116
Re: 	Manuel Faustino Yvellez
v.
Chula Vista Elementary School District
Unfair Practice Charge No. LA-CE-5732-E
PARTIAL WARNING LETTER
Dear Mr. Yvellez:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on August 23, 2012. Manuel Faustino YveJlez (Charging Party)
alJeges that the Chula Vista Elementary Schoo] District (District or Respondent) violated
section 3543.5
of
the Educational Employment Relations Act (EERA or Act) 1 by interfering
with Charging Party's exercise ofrights protected under EERA and by hiring the President
of
the Chula Vista Educators' (CVE). This letter does not address allegations that the District's
conduct with respect to Charging Party's use
of
the District e-mail system interfered with
Charging Party's EERA rights.
Facts Alleged in the Charge
Charging Party is a school teacher and member
of
the CVE. On May 24, 2012, Charging Party
received at his e-mail address, "myvellez@hotmail.com," an e-mail message from CVE
President Peg Myers (Myers), "cvepresident@gmail.com," that notified members that she was
"stepping down as your CVE President" and had "accepted the Director
of
Human Resources
position at the District." The message further explained that CVE Vice President Jennefer
Porch (Porch) would assume the office
of
CVE President and the CVE cell phone number and
e-mail address, "cvepresident@gmail.com," would remain the same.
On May 	2012, Charging Party received at his e-mail address, "myvellez@hotmail.com," an
e-mail message from new CVE President Porch, "cvepresident@gmail.com," explaining
had "assumed the presidency to complete Peg's current term."
On May 27, 20 I 2, Charging Party sent an e-mail message from "myvellez@hotmail.com" to
Porch at "cvepresident@gmail.com," setting forth his view that Myers had breached her
fiduciary duty to CVE and its members by accepting employment with the District and by
failing to reveal that she was considering the position. Charging Party also asked Porch to take
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.

LA-CE-5732-E
October 25, 2012
Page 2
immediate steps such as calling a site representative meeting and seeking legal advice
regarding the alleged breach. Charging Party also asked Porch to forward his e-mail
message
to all CVE members.
On May 29, 2012, Charging Party sent an e-mail message from his District e-mail
account
to:
All Kindergarten Teachers Distribution Group; All Kindergarten-
First Teachers Distribution Group; All 6th Grade Teachers
Distribution Group; All 6th Grade Teachers Distribution Group
[sic]; All 5th-6th Grade Teachers Distribution Group; All 1st
Grade Teachers Distribution Group; All 1st-2nd Grade Teachers
Distribution Group; All 2nd Grade Teachers Distribution Group;
All 2nd-3rd Grade Teachers Distribution Group; All 3rd Grade
Teachers Distribution Group; All 3rd-4th Grade Teachers
Distribution Group; All 4th Grade Teachers Distribution Group;
All
4th-5th Grade Teachers Distribution Group; All 5th Grade
Teachers Distribution Group
The e-mail message was entitled "Confidential CVE Message" and asked recipients to
read
the
attached letter entitled
"Porch
Letter 1.doc." Charging Party did not attach the letter to the
unfair practice charge but he asserts the letter is the same as his May 27, 2012 e-mail
message
to Porch. Charging Party asked recipients to e-mail Charging Party and/or "friend" him
on
Facebook "so that we have a means
of
communicating with each other." Charging Party
asked
recipients "to forward a copy to all CVE members for whom you may have an email
address."
The message also stated
"If
you are not a CVE member, this memo has reached you by
mistake
and I would ask you please to del[ e ]te it." Charging Party received some e-mail messages in
response that stated the District e-mail system could not be used for such purposes.
On May 30, 2012, Charging Party sent an e-mail message to Superintendent Francisco
Escobedo entitled "CVE Communications on District Email System." The message stated:
Recently, there has arisen a particular need for CVE members to
communicate with each other on union matters. Having no other
effective communication system currently 	place, I have
utilized the district email system for such communications. 	Some
members have claimed that this email system can never be used
for union communications and have even implied that a member
could face severe discipline for such use. I have asked for the
basis
of
such pronouncement, but have received none. In my 14
years with CVESD, I do not recall the district ever putting out a
statement or adopting limiting regulations of the email system. I
also do not find any support for such a position in the law. I ask
if
you will please clear up this matter by stating now any official
position the district has on [the] matter.

LA-CE-5732-E
October 25, 2012
Page 3
In the message, Charging Party quoted portions
of
EERA and cited State
of
California,
California Department
of
Transportation (1981) PERB Decision No. 159-S in support
of
his
statement that "[T]he Public Employ[ment] Relations Board has found that otherwise valid
limiting rules cannot be sustained
if
they are discriminatory to union activity."
Superintendent Escobedo sent an e-mail message to Charging Paiiy the same morning and
stated it had come to his attention that Charging Party was "inappropriately using our e-mail
service to share derogatory information that can be construed as slanderous and litigious. This
case is being reviewed
by
our district attorney and will be recommending possible disciplinary
action. I would suggest that you contact you[r] union representative or personal attorney."
Charging Party responded to Escobedo' s message the same morning and reiterated his request
that Escobedo clarify the District's position regarding e-mail usage and also provide the
authority the District relies on in support
of
its position.
On June l, 2012, Principal Sherroll Stogsdill informed Charging Party that Assistant
Superintendent
of
Human Resources Sandra Villegas-Zuniga (Zuniga) wanted to meet with
Charging Party that day and also informed Charging Party he could have a union representative
present. Charging Party wanted to have his personal attorney present and the parties scheduled
the meeting on a day when his attorney could attend.
The meeting took place on June 14, 2012. At the meeting Charging Party asserted the e-mail
system was a public forum; that the District could not restrict his protected activity without a
policy; that no policy existed; and that the District was discriminating against his protected
activity
of
union communications in that other non-business e-mails, e.g., social
announcements, including one sent by Principal Stogsdill, prompted no investigation.
Charging Party asked when he could expect a decision on disciplinary action and the District's
attorney stated it was hard to determine but typically a decision was reached in two to three
weeks.
On August 7, 2012, Charging Party sent an e-mail message to Zuniga and asked whether the
District intended to impose disciplinary action. 	Charging Party also stated that the District's
failure to articulate an e-mail policy was creating a delay and restraining his protected activity
by causing him to refrain from further use
of
the District e-mail system.
Charging Party alleges in part that the District violated EERA section 3543.5, subdivision (d)
by hiring former CVE President Myers.
Discussion
Charging Party asserts Respondent's hiring
of
Peg Myers "was inherently destructive to all
[his] protected activity in that [he] ha[s] lost faith and trust in a union leadership that could at
any time be usurped by the District by hiring them." Charging Party further states he is "loath
to exercise [his] right to file grievances" because he has lost faith and trust in CVE and CVE is
the party who has discretion to take a grievance to binding arbitration, not an individual

LA-CE-5732-E
October 25, 2012
Page 4
employee. This information, however, fails to provide information demonstrating that the
District is liable for Charging Party's loss
of
trust in the CVE.
Government Codes section 3543, subdivision (d), provides:
It is
unlawful for a public school employer to ... [d]ominate or
interfere with the formation or administration
of
any employee
organization, or contribute financial or other support to it, or in
any way encourage employees to join any organization in
preference to another.
To state a prima facie violation
of
EERA section 3543.S(d), the charging party must allege
facts which demonstrate that the employer's conduct tends to interfere with the internal
activities
of
an employee organization or tends to influence the choice between employee
organizations. (Santa Monica Community College District ( 1979) PERB Decision No. 103;
Redwoods Community College District (1987) PERB Decision No. 650.) Proof that an
employer intended to unlawfully dominate, assist or influence employees' free choice is
notrequired. 	Nor is
it
necessary to prove that employees actually changed membership as a result
of
the employer's act. (Santa Monica CCD; Redwoods CCD.) The threshold test is "whetherthe employer's conduct tends to influence [free] choice or provide stimulus in one direction or
the other." (Santa Monica CCD, at p. 22.)
Here, the District hired the former CVE President. 	This information is insufficient to
demonstrate that the empioyer' s conduct tends to interfere with the internal activities
of
an
employee organization or tends to influence the choice between employee organizations.
Charging Party does not allege that the former CVE President, once appointed to her new
position, engaged in any way in the internal affairs
of
CVE.
Further, the Board has long held that, "The collective negotiations process established by theEERA gives the parties the right to appoint their own negotiators and forbids either side from
dictating who their opposing representatives may be." (Yolo County Superintendent o.f Schools
(l 990) PERB Decision No. 838, citing San Ramon Valley Unf:fied Schoo! District (1982)
PERB Decision No. 230; Booth Broadcasting
Co.
( I 976) 223 NLRB 867; Retail Clerks, Local
(Fine Foods Co.) (1977) 228 NLRB 1166.)
Based on this precedent, which would preclude CVE from refusing to deal with the former
CVE President in her new capacity, it is unclear how an individual employee can successfully
challenge the District's hiring decision.
For these reasons the allegation that the District's hiring of the CVE President was in violation
of
Government Code section 3543.5, subdivision (d), as presently written, does not state a
prima facie case.2 Ifthere are any factual inaccuracies in this letter or additional facts that
In Eastside Union School District (l 984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a

LA-CE-5732-E
October 25, 2012
Page 5
would correct the deficiencies explained above, Charging Party may amend the charge.
	Theamended 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
November
5,
2012,3 PERB will dismiss the above-described allegation from your charge.
	If
you have any questions, please call me at the telephone number listed above.
Sincerely,
Mary Weiss
Senior Regional Attorney
MW
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt
of
conflicting allegations
of
fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
3 A document is "filed" on the date the document is actually received by PERB,
including
if
transmitted via facsimile. 	(PERB Regulation 32135.)