Jurupa Unified School District (PERB 2309E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ERMINE FREDRICA NELSON,
Charging Party,
V.
JURUP A UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5517-E
PERB Decision No. 2309
March
8,
2013
Appearances: Richard
D.
Ackerman, Attorney, for Ermine Fredrica Nelson; Fagen, Friedman
& Fulfrost by Kerrie Taylor, Attorney, for Jurupa Unified School District.
Chair;	Before Martinez, 	Huguenin and Banks, Members.
DECISION
HUGUENIN, 	Public	Member: This case is before the 	Employment Relations Board
(PERB or Board) on exceptions filed by the Jurupa Unified School District (District), to a
proposed decision (attached)
of
an administrative law judge (ALJ). The ALJ determined that
the District violated section 3543.S(a)
of
the Educational Employment Relations Act (EERA)1
by informing employee Ermine Fredrica Nelson (Nelson) that her employment with the
District had been terminated, thereby retaliating against Nelson for her participation in
protected activity, viz., filing grievances.
The Board has reviewed the entire record in this case, including the hearing record, the
ALJ's findings
of
fact and conclusions oflaw, the District's exceptions, and Nelson's response
thereto. 	The ALJ's findings
of
fact are supported by the record and neither party excepts
1 EERA is codified at California Government Code section 3540 et seq. Unless
otherwise indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ERMINE FREDRICA NELSON,
Charging Party,
V .
JURUPA UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5517-E
PERB Decision No. 2309
March 8, 2013
Appearances : Richard D. Ackerman, Attorney, for Ermine Fredrica Nelson; Fagen, Friedman
& Fulfrost by Kerrie Taylor, Attorney, for Jurupa Unified School District.
Before Martinez,	efore	B 	M 	uguenin and Banks, Members.
DECISION
ember: This case is before the	HUGUENIN, M 	Public Employment Relations Board
(PERB or Board) on exceptions filed by the Jurupa Unified School District (District), to a
proposed decision (attached) of an administrative law judge (ALJ). The ALJ determined that
the District violated section 3543.5(a) of the Educational Employment Relations Act (EERA)
by informing employee Ermine Fredrica Nelson (Nelson) that her employment with the
District had been terminated, thereby retaliating against Nelson for her participation in
protected activity, viz., filing grievances.
The Board has reviewed the entire record in this case, including the hearing record, the
ALJ's findings of fact and conclusions of law, the District's exceptions, and Nelson's response
thereto. The ALJ's findings of fact are supported by the record and neither party excepts
EERA is codified at California Government Code section 3540 et seq. Unless
otherwise indicated, all statutory references herein are to the Government Code.

thereto.2 Accordingly, we adopt the ALJ's findings
of
fact as the findings
of
the Board itself,
except as expressly noted below. 	We adopt
as
well the ALJ' s conclusions
of
law insofar as
they are consistent with our discussion below.
FACTUAL SUMMARY
We incorporate by reference the ALJ' s procedural history and proposed findings
of
fact. 	(Proposed Decision (PD), at pp. 2-5.) We summarize them briefly below.
Nelson, a teacher, was initially employed by the District in 1998. In the early fall
of
2009, she took a medical leave
of
absence.
In mid-January 2010, the District notified Nelson by letter that
if
she exhausted
entitlement to medical leave and could not return to work, pursuant to Education Code 44978.1
the District might place her "on a 39-month re-employment list for your position as Teacher
effective March 3, 2010." The letter stated also that: 	"[t]his action occurs automatically when
an employee exhausts all entitlement to any form
of
paid leave
of
absence status (to include
sick leave and 5 month differential leave.)." The letter further informed Nelson that during the
39-month period
if
she became able to resume her duties as verified by her physician, the
District would offer her "employment in a position for which you are credentialed and
qualified."
In early March 2010, the District's governing board took action to place Nelson on the
39-month reemployment list, notifying Nelson thereof by letter which repeated the information
from the January letter regarding return to work during the 39-month period in the event she
became able to resume her duties.
2 a ]n exception not specifically urged shall	PERB Regulation 32300(c) provides that "[
be waived." (PERB Regs. are codified at Cal. Code Regs., tit. 8, sec. 31001, et seq.)
2	2
thereto." Accordingly, we adopt the ALJ's findings of fact as the findings of the Board itself,
except as expressly noted below. We adopt as well the ALJ's conclusions of law insofar as
they are consistent with our discussion below.
FACTUAL SUMMARY
We incorporate by reference the ALJ's procedural history and proposed findings of
fact. (Proposed Decision (PD), at pp. 2-5.) We summarize them briefly below.
Nelson, a teacher, was initially employed by the District in 1998. In the early fall of
2009, she took a medical leave of absence.
In mid-January 2010, the District notified Nelson by letter that if she exhausted
entitlement to medical leave and could not return to work, pursuant to Education Code 44978.1
the District might place her "on a 39-month re-employment list for your position as Teacher
effective March 3, 2010." The letter stated also that: "[t]his action occurs automatically when
an employee exhausts all entitlement to any form of paid leave of absence status (to include
sick leave and 5 month differential leave.)." The letter further informed Nelson that during the
39-month period if she became able to resume her duties as verified by her physician, t	39-
District would offer her "employment in a position for which you are credentialed and
qualified."
In early March 2010, the District's governing board took action to place Nelson on the
39- 	i	39-month reemployment list, notifying Nelson thereof by letter which repeated the informat
from the January letter regarding return to work during the 39-month period in the event she
became able to resume her duties.
PERB Regulation 32300(c) provides that "[an exception not specifically urged shall	2
be waived." (PERB Regs. are codified at Cal. Code Regs., tit. 8, sec. 31001, et seq.)

During August 2010, Nelson filed with the District various grievances and
complaints.
Nelson
thereby challenged District actions as violating state and federal statutes as well
as
provisions
of
the collective bargaining agreement (CBA) between the District and
National
Education Association-Jurupa (Association), the exclusive representative
of
the certificated
employee bargaining unit. The CBA
contains a grievance procedure, which defines a
grievant
as
"a
unit member or group
of
unit members or the Association," and a complaint
procedure
as
well.
In 	responded	mid-September 2010, the District 	to
Nelson's
grievance and
complaint
filings. 	The response, a memo from the District superintendent, stated in pertinent part:
After careful review, the District must reject your
complaints/grievances on the grounds that you are no longer an
employee
of
the District and lack standing to bring such
complaints and grievances. 	Further, all or most
of
your
complaints/grievances are untimely and/or have already been
addressed (via grievance or complaint procedures).
Code	Pursuant to Education 	section 44978.1, your employment
with the District was terminated on March 3, 2010, after you
exhausted all current and accrued leaves and were medically
unable to return to work.
In 	Nelson 	an unfair practice charge,	December 2010, 	initiated this proceeding by filing
which she thereafter amended in early April 2011. 	Later in April 2011,
PERB's
Office
of
the
General Counsel partially dismissed Nelson's charge, but issued a complaint alleging
that
the
District violated EERA by informing Nelson in mid-September 2010, that she had been
terminated from District employment in March 2010, thus retaliating against Nelson because
she filed grievances. In late April 2011, the District filed an answer with PERB, denying the
essential allegations and raising affirmative defenses.
In early July 2011, the District sent Nelson a letter "to clarify [her] rights under
Education Code 44978.1 following the correspondence you received from the Jurupa Unified
3	3
During August 2010, Nelson filed with the District various grievances and complaints.
Nelson thereby challenged District actions as violating state and federal statutes as well as
provisions of the collective bargaining agreement (CBA) between the District and National
Education Association-Jurupa (Association), the exclusive representative of the certificated
employee bargaining unit. The CBA contains a grievance procedure, which defines a grievant
as "a unit member or group of unit members or the Association," and a complaint procedure as
well.
In mid-September 2010, the District responded to Nelson's grievance and complaint
filings. The response, a memo from the District superintendent, stated in pertinent part:
After careful review, the District must reject your
complaints/grievances on the grounds that you are no longer an
employee of the District and lack standing to bring such
complaints and grievances. Further, all or most of your
complaints/grievances are untimely and/or have already been
addressed (via grievance or complaint procedures).
Pursuant to Education Code section 44978.1, your employment
with the District was terminated on March 3, 2010, after you
exhausted all current and accrued leaves and were medically
unable to return to work.
December 2010,	In 	Nelson initiated this proceeding by filing an unfair practice charge,
which she thereafter amended in early April 2011. Later in April 2011, PERB's Office of the
General Counsel partially dismissed Nelson's charge, but issued a complaint alleging that the
District violated EERA by informing Nelson in mid-September 2010, that she had been
terminated from District employment in March 2010, thus retaliating against Nelson because
she filed grievances. In late April 2011, the District filed an answer with PERB, denying the
essential allegations and raising affirmative defenses.
In early July 2011, the District sent Nelson a letter "to clarify [her] rights under
Education Code 44978.1 following the correspondence you received from the Jurupa Unified

School District ('District') dated September 15, 2010 in response to your August 3, 2010
complaints/grievances." The District's July 2011 letter stated:
You remain on the reemployment list. In the event you are
medically able to return to work as a teacher, you will be returned
to a classroom in compliance with Education Code
section 44978.1. The District's September 15, 2010
correspondence to you did not change or otherwise impact your
status on the medical 39-month reemployment list. You have
been in the same employment status since March 3, 2010.
The District did not communicate further with Nelson regarding her employment status.·
PROPOSED DECISION
The ALJ determined that while on the District's 39-month reemployment list, Nelson
remained a "public school employee" within EERA. For this conclusion, the ALJ relied on
Board precedent which construed Education Code section 44978.1 as establishing an extended
unpaid leave. (Santa Ana Educators Association (Felicijan & Hetman) (2009) PERB Decision
No. 2008 (Santa Ana Educators).) Thus, concluded the Board, when on the 39-month
reemployment list pursuant to Education Code section 44978 .1, individuals remain "public
school employees" within EERA and remain as well members of the bargaining unit.
The ALJ likewise determined that the District's mid-September 2010 letter to Nelson
stating that her employment had been terminated in March 2010, was sent in retaliation for
Nelson's protected grievance activity. For this conclusion, the ALJ relied on the Board's
four-part test for retaliation. (Novato Unified School District (1982) PERB Decision No. 210.)
Applying this test, the ALJ concluded that: (1) Nelson exercised EERA rights by filing
grievances in August 201 O; (2) the District knew thereof; (3) the District's memo of
mid-September informing Nelson unequivocally that her employment had been terminated the
prior March was adverse; and (4) the District's animus was demonstrated by its departure from
4
School District ('District') dated September 15, 2010 in response to your August 3, 2010
complaints/grievances." The District's July 2011 letter stated:
You remain on the reemployment list. In the event you are
medically able to return to work as a teacher, you will be returned
to a classroom in compliance with Education Code
section 44978.1. The District's September 15, 2010
correspondence to you did not change or otherwise impact your
status on the medical 39-month reemployment list. You have
been in the same employment status since March 3, 2010.
The District did not communicate further with Nelson regarding her employment status.
PROPOSED DECISION
The ALJ determined that while on the District's 39-month reemployment list, Nelson
remained a "public school employee" within EERA. For this conclusion, the ALJ relied on
Board precedent which construed Education Code section 44978.1 as establishing an extended
unpaid leave. (Santa Ana Educators Association (Felicijan & Hetman) (2009) PERB Decision
No. 2008 (Santa Ana Educators).) Thus, concluded the Board, when on the 39-month
reemployment list pursuant to Education Code section 44978.1, individuals remain "public
school employees" within EERA and remain as well members of the bargaining unit.
The ALJ likewise determined that the District's mid-September 2010 letter to Nelson
stating that her employment had been terminated in March 2010, was sent in retaliation for
Nelson's protected grievance activity. For this conclusion, the ALJ relied on the Board's
four-part test for retaliation. (Novato Unified School District (1982) PERB Decision No. 210.)
Applying this test, the ALJ concluded that: (1) Nelson exercised EERA rights by filing
grievances in August 2010; (2) the District knew thereof; (3) the District's memo of
mid-September informing Nelson unequivocally that her employment had been terminated the
prior March was adverse; and (4) the District's animus was demonstrated by its departure from

its own practices which did not treat persons on the 39-month reemployment list as having
been terminated, and by its shifting justifications for its mid-September 2010 memo to Nelson.
Finally, the ALJ determined that the District's July 2011 "clarification"
of
Nelson's
status failed to nullify the coercive effect
of
the District's mid-September 2010 memo
informing Nelson that she had been terminated. For this conclusion, the ALJ relied on the
Board's decision in Sacramento City Unified School District (1985) PERB Decision No. 492
(Sacramento) which recognizes the possibility
of
such nullification, but only where the
employer's retraction or apology is made in a manner that "completely nullified the coercive
effects
of
the earlier statement." The ALJ concluded that the District's shifting justifications
combined with the almost ten-month delay in providing the clarification precluded the July
2011 clarification from nullifying the coercive effects
of
the offending mid-September 2010
letter.
DISTRICT'S EXCEPTIONS
The 	fourteen 	conclusions
of
law to	District identifies 	separate portions
of
the ALJ' s
which it excepts. Nonetheless, it argues only three points: (1) The employment status
of
persons placed on the 39-month reemployment list was uncertain, so the ALJ should not have
concluded that the District retaliated against Nelson; (2) no evidence supports the ALJ's
conclusion that Nelson was impacted adversely by the District's informing her she had been
terminated; and (3) the District's clarification notice to Nelson
of
July 2011 sufficiently
clarified Nelson's status that it nullified any coercive impact
of
the mid-September 2010 memo
to Nelson that she had been terminated in March 2010. We consider these contentions in
order.
5
its own practices which did not treat persons on the 39-month reemployment list as having
been terminated, and by its shifting justifications for its mid-September 2010 memo to Nelson.
Finally, the ALJ determined that the District's July 201 1 "clarification" of Nelson's
status failed to nullify the coercive effect of the District's mid-September 2010 memo
informing Nelson that she had been terminated. For this conclusion, the ALJ relied on the
Board's decision in Sacramento City Unified School District (1985) PERB Decision No. 492
(Sacramento) which recognizes the possibility of such nullification, but only where the
employer's retraction or apology is made in a manner that "completely nullified the coercive
effects of the earlier statement." The ALJ concluded that the District's shifting justifications
combined with the almost ten-month delay in providing the clarification precluded the July
2011 clarification from nullifying the coercive effects of the offending mid-September 2010
letter.
DISTRICT'S EXCEPTIONS
The	he District identifi	TThe District identifies fourteen separate portions of the ALJ'
which it excepts. Nonetheless, it argues only three points: (1) The employment status of
persons placed on the 39-month reemployment list was uncertain, so the ALJ should not have
concluded that the District retaliated against Nelson; (2) no evidence supports the ALJ's
conclusion that Nelson was impacted adversely by the District's informing her she had been
terminated; and (3) the District's clarification notice to Nelson of July 2011 sufficiently
clarified Nelson's status that it nullified any coercive impact of the mid-September 2010 memo
to Nelson that she had been terminated in March 2010. We consider these contentions in
order.

1.
	Status
of
Persons Placed on the 39-Month Reemployment List
The District urges that the ALJ improperly presumed the status
of
persons on the 3 9-
month reemployment list was clear, which, contends the District, it is not. Thus, urges the
District, its communications to Nelson were its best effort to explain to Nelson her status under
an unclear statutory construct in which the Legislature by using the term "reemployment list"
had at least intimated that persons on the list no longer were to be considered employed. 	We
are not persuaded.
status	We do not deem the
	of
individuals placed on the 39-month reemployment list
pursuant to Education Code section 44978.1 to be unclear. In Santa Ana Educators, the Board
held that placement on the reemployment list pursuant to Education Code section 44978.1 does
not constitute a separation from service. The Board there wrote:
an	Section 44978.1 provides that
if
	individual on the list becomes
medically able to work during the 39-month period, 'the
position	certificated employee shall be returned to employment in a
for which he or she is credentialed and qualified.' 	(Emphasis
added.) Unlike the [parallel] sections for classified employees,
language about vacant positions or a	section 44978.1 contains no
preference in reemployment over other applicants or candidates.
In the only published court
of
appeal decision addressing
section 44978.1,[3] Veguez
v.
Governing Bd.
of
the Long Beach
Unified School Dist. (2005) 127 Cal.App.4th 406 [25 Cal.Rptr.3d
526], the court interpreted the above-quoted language to mean that
reinstatement is not conditioned 'on the availability
of
a position.'
(Id. at p. 423.) Rather, the court held that section 44978.1
guarantees a right to reinstatement during the 39-month period
3 "Two non-precedential decisions have addressed the employment status
of
an
individual on a section 44978.1 reemployment list. In an unpublished decision, the Second
District Court of Appeal stated that placement of an employee on the section 44978.1
status as permanent	reemployment list was not a dismissal and thus the employee 'retained his
employee.' 	(Hackenberg v. Inglewood Unified School District (Apr. 6, 2005, B 172453,
pp. 29-30) [nonpub. opn.].) More recently, a superior court observed that '(n)othing in section
44978.1 indicates that an employee's placement on a reemployment list is a resignation or other
separation from his or her employment.' 	(California Teachers Association v. Elk Grove
Unified School District (Super. Ct. Sacramento County, 2008, 06CS01 l 90, p. 19).)"
6
1.. Status of Persons Placed on the 39-Month Reemployment Lis
The District urges that the ALJ improperly presumed the status of persons on the 39-
month reemployment list was clear, which, contends the District, it is not. Thus, urges the
District, its communications to Nelson were its best effort to explain to Nelson her status under
an unclear statutory construct in which the Legislature by using the term "reemployment list"
had at least intimated that persons on the list no longer were to be considered employed. We
are not persuaded.
We do not deem the status of individuals placed on the 39-month reemployment list
pursuant to Education Code section 44978.1 to be unclear. In Santa Ana Educators, the Board
held that placement on the reemployment list pursuant to Education Code section 44978.1 does
not constitute a separation from service. The Board there wrote:
Section 44978.1 provides that if an individual on the list becomes
medically able to work during the 39-month period, 'the
certificated employee shall be returned to employment in a position
for which he or she is credentialed and qualified.' (Emphasis
added.) Unlike the [parallel] sections for classified employees,
section 44978.1 contains no language about vacant positions or a
preference in reemployment over other applicants or candidates.
In the only published court of appeal decision addressing
section 44978.1,[ ] Veguez v. Governing Bd. of the Long Beach
Unified School Dist. (2005) 127 Cal.App.4th 406 [25 Cal. Rptr.3d
526], the court interpreted the above-quoted language to mean that
reinstatement is not conditioned 'on the availability of a position.'
(Id. at p. 423.) Rather, the court held that section 44978.1
guarantees a right to reinstatement during the 39-month period
"Two non-precedential decisions have addressed the employment status of an
individual on a section 44978.1 reemployment list. In an unpublished decision, the Second
District Court of Appeal stated that placement of an employee on the section 44978.1
eemployment list was not a dismissal and thus the employee 'retained his s	r 	tatus as permanent
employee.' (Hockenberg v. Inglewood Unified School District (Apr. 6, 2005, B172453,
pp. 29-30) [nonpub. opn.].) More recently, a superior court observed that '(n)othing in section
44978.1 indicates that an employee's placement on a reemployment list is a resignation or other
separation from his or her employment.' (California Teachers Association v. Elk Grove
Unified School District (Super. Ct. Sacramento County, 2008, 06CS01 190, p. 19).)"

once the individual is cleared by his or her doctor to return to
work. 	(Ibid.) This strongly resembles a return from a leave of
absence pursuant to Education Code section 44973, which provides
that a certificated employee returning from a leave of absence 'be
reinstated in the position held by him at the time of the granting of
the leave of absence.' 	Thus, based on the language of the statute
itself, placing an individual on the 39-month reemployment list
constitutes the beginning of an unpaid medical leave of absence
rather than a termination of the individual's employment.
The legislative history of Education Code section 44978.1 further
sheds light on the unique nature of the section's 39-month
reemployment list. 	Section 44978.1 was added to the Education
Code in 1998 as part ofS.B. 1019. (27B West's Ann. Ed. Code
(2006 ed.) foll. sec. 44978.1, p. 557.) That bill sought to end the
potential for abuse of sick leave by certificated employees.
(Assem. Com. on Education, Analysis of Sen. Bill No. IO 19 (1997-
1998 Reg. Sess.) as amended January 20, 1998, p. 3.) Prior to
S.B. 1019, 'each year an employee would be able to collect another
10 days of full-pay sick leave and another five months of
differential pay, without ever returning to work.' 	(Id., at p. 2.)
S.B. 10 I 9 eliminated a certificated employee's ability to receive a
new allotment of sick leave and differential pay each year by
declaring that once those benefits have been exhausted in a single
school year, an employee who remains medically unable to return
to work because of the same injury or illness must be placed on a
39-month reemployment list. 	(Ibid.) Thus, it appears the
Legislature intended section 44978.1 to create an unpaid leave
status for such employees in lieu of earning new paid leave each
school year when they continued to be absent due to the same
injury or illness. 	Importantly, the legislative history contains
nothing to indicate the Legislature intended placement on the 39-
month reemployment list to end the employment relationship
between the certificated employee and the school district.
For the above reasons, we conclude that placement of an employee
on a 39-month reemployment list pursuant to Education Code
section 44978.1 does not constitute a separation from service.
Thus, a person on that list remains an employee of the school
district throughout the 39-month period.
(Santa Ana Educators, at pp. 8-10.) We reaffirm here our prior construction of Education
Code section 44978.1.
77
once the individual is cleared by his or her doctor to return to
work. (Ibid.) This strongly resembles a return from a leave of
absence pursuant to Education Code section 44973, which provides
that a certificated employee returning from a leave of absence 'be
reinstated in the position held by him at the time of the granting of
the leave of absence. ' Thus, based on the language of the statute
itself, placing an individual on the 39-month reemployment list
constitutes the beginning of an unpaid medical leave of absence
rather than a termination of the individual's employment.
The legislative history of Education Code section 44978.1 further
sheds light on the unique nature of the section's 39-month
reemployment list. Section 44978.1 was added to the Education
Code in 1998 as part of S.B. 1019. (27B West's Ann. Ed. Code
(2006 ed.) foll. sec. 44978.1, p. 557.) That bill sought to end the
potential for abuse of sick leave by certificated employees.
(Assem. Com. on Education, Analysis of Sen. Bill No. 1019 (1997-
1998 Reg. Sess.) as amended January 20, 1998, p. 3.) Prior to
S.B. 1019, 'each year an employee would be able to collect another
10 days of full-pay sick leave and another five months of
differential pay, without ever returning to work.' (Id., at p. 2.)
S.B. 1019 eliminated a certificated employee's ability to receive a
new allotment of sick leave and differential pay each year by
declaring that once those benefits have been exhausted in a single
school year, an employee who remains medically unable to return
to work because of the same injury or illness must be placed on a
39-month reemployment list. (Ibid.) Thus, it appears the
Legislature intended section 44978.1 to create an unpaid leave
status for such employees in lieu of earning new paid leave each
school year when they continued to be absent due to the same
injury or illness. Importantly, the legislative history contains
nothing to indicate the Legislature intended placement on the 39-
month reemployment list to end the employment relationship
between the certificated employee and the school district.
For the above reasons, we conclude that placement of an employee
on a 39-month reemployment list pursuant to Education Code
section 44978. 1 does not constitute a separation from service.
Thus, a person on that list remains an employee of the school
district throughout the 39-month period.
(Santa Ana Educators, at pp. 8-10.) We reaffirm here our prior construction of Education
Code section 44978.1.

2.	2. No Evidence of Adverse Impact	No Evidence of Adverse Impact
The District next urges that informing Nelson in mid-September 2010 that she had been	The District next urges that informing Nelson in mid-September 2010 that she had been
terminated from employment more than six months earlier when placed on the 39-month	terminated from employment more than six months earlier when placed on the 39-month
reemployment list was not adverse to Nelson, and that no evidence in the record establishes	reemployment list was not adverse to Nelson, and that no evidence in the record establishes
that' the District action in so doing was adverse. 	We disagree.	that the District action in so doing was adverse. We disagree.
In determining whether the employer's action is adverse to the employee, the Board	In determining whether the employer's action is adverse to the employee, the Board
applies an objective test. The question is: "whether a reasonable person under the same	applies an objective test. The question is: "whether a reasonable person under the same
circumstances would consider the action to have an adverse impact on the employee's	circumstances would consider the action to have an adverse impact on the employee's
employment." 	(Newark Unified School District (1991) PERB Decision No. 864.) Weemployment." (Newark Unified School District (1991) PERB Decision No. 864.) We
conclude that a reasonable person would so consider the mid-September 2010 notice received	conclude that a reasonable person would so consider the mid-September 2010 notice received
by Nelson.	by Nelson.
Under the EERA, "pubiic school employees" have the right to participate in the
activities of employee organizations (EERA, § 3543), including, inter alia, the right to initiate
and process grievances pursuant to the grievance procedure in a CBA applicable to their
bargaining unit. (North Sacramento School District (1982) PERB Decision No. 264; Jurupa
Unffied School District (2012) PERB Decision No. 2283.) Denial of this right adversely
impacts an employee seeking to vindicate rights negotiated by the employee's exclusive
representative and described in the applicable CBA. 	Moreover, and without regard to filing of
grievances, depriving a person of the status of employee, thus effectively stripping from the
person those rights and benefits accruing to employees under the EERA and under the
applicable CBA, is inherently adverse. 	Whether the deprivation is by discharge (Regents of the
University of California (Einheber) (1997) PERB Decision No. 949-H), or by a notice that the
employment relationship was already severed and thus no longer exists, is of little moment.
8

The ALJ determined that the mid-September 2010 memo to Nelson from the
District's
superintendent unequivocally stated that Nelson's employment had been terminated in
March
2010, and that as a person no longer employed by the District Nelson had no right, and the
District no duty, to process her grievances or complaints. We hold that this constitutes a
classic adverse action.
The	3. 	July 2011 Letter Clarified Nelson's Status and Nullified the Mid-September
2010 Memo
The District urges lastly that its letter to Nelson
of
July 2011, which confirmed
her
status on the 39-month reemployment list but did not confirm that she continued to be
an
employee
of
the District, was sufficient to clarify any misapprehension arising from,
or
in
other words to nullify any coercive impact of, the mid-September 2010 memo informing
Nelson that her employment had been terminated when in March 2010 she was placed
on
the
39-month reemployment list. We disagree.
In Sacramento, the Board recognized a doctrine employed by the National Labor
Relations Board (NLRB) under which an honestly given retraction can erase the effects
of
a
prior coercive statement
if
the employer retraction was made in a manner that "completely
nullified the coercive effects
of
the earlier statement." (Sacramento, PD, at p. 28-29, citing
Bartley Co.
v.
NLRB (6
th
Cir 1969) 410 F.2d 517; Redcar Corp. (1967) 166 NLRB 1013
.)4
In
Sacramento, the Board considered a retraction made within minutes after a coercive
admonition against engaging in protected conduct. 	Finding the supervisor did not even
acknowledge the remark he supposedly was retracting, the Board concluded the supposed
retraction was ineffective to nullify the coercive earlier statement.
4 Like California courts, PERB relies on National Labor Relations Act precedent to
construe analogous provisions of California labor relations statutes. (Fire Fighters Union
v.
City o.fVallejo (1974) 12 Cal.3d 608, 616-617.)
9
The ALJ determined that the mid-September 2010 memo to Nelson from the District's
superintendent unequivocally stated that Nelson's employment had been terminated in March
2010, and that as a person no longer employed by the District Nelson had no right, and the
District no duty, to process her grievances or complaints. We hold that this constitutes a
classic adverse action.
he	3. 	e	TThe July 2011 Letter Clarified Nelson's Status and Nullified the Mid-Sept
2010 Memo
The District urges lastly that its letter to Nelson of July 2011, which confirmed her
status on the 39-month reemployment list but did not confirm that she continued to be an
employee of the District, was sufficient to clarify any misapprehension arising from, or in
other words to nullify any coercive impact of, the mid-September 2010 memo informing
Nelson that her employment had been terminated when in March 2010 she was placed on the
39-	39-month reemployment list. We disagre
In Sacramento, the Board recognized a doctrine employed by the National Labor
Relations Board (NLRB) under which an honestly given retraction can erase the effects of a
prior coercive statement if the employer retraction was made in a manner that "completely
nullified the coercive effects of the earlier statement." (Sacramento, PD, at p. 28-29, citing
Bartley Co. v. NLB (6" Cir 1969) 410 F.2d 517; Redcor Corp. (1967) 166 NLRB 1013.)* In
Sacramento, the Board considered a retraction made within minutes after a coercive
admonition against engaging in protected conduct. Finding the supervisor did not even
acknowledge the remark he supposedly was retracting, the Board concluded the supposed
retraction was ineffective to nullify the coercive earlier statement.
Like California courts, PERB relies on National Labor Relations Act precedent to
construe analogous provisions of California labor relations statutes. (Fire Fighters Union v.
City of Vallejo (1974) 12 Cal.3d 608, 616-617.)

10
The ALJ here, for similar reasons, found the retraction unpersuasive. So do we. 	The
alleged "retraction" was inadequate and untimely. 	The notice to Nelson of July 2011 did not
address the coercive aspects of the mid-September 2010 memo, to wit, that Nelson was no
longer an employee of the District and had no standing to initiate grievances or complaints.
Moreover, to be effective any retraction would have to have been tendered within a few days,
at most, of the mid-September 2010 memo. 	Waiting to retract until Nelson filed her charge at
PERB, and until PERB itself issued a complaint, suggests that the retraction was motivated
solely by a desire to avoid an adverse determination in this case. We hold that the District's	solely by a desire to avoid an adverse determination in this case. 	We hold that the District's
July 2011 "retraction" was both inadequate and untimely, and thus not made "in a manner that
completely nullified the coercive effects of the earlier statement."5
CONCLUSION
We affirm the ALJ's conclusion that the District retaliated against Nelson because of
her protected conduct, viz., filing grievances and complaints in August 20 I 0, by issuing to her
in mid-September 2010 a memo informing her that her employment with the District had been
terminated in March 2010 and that as a consequence thereof she lacked standing to file
grievances and complaints. We likewise affirm the ALJ's proposed remedy, including the
cease and desists order, the posting order and the order for rescission of the mid-September
2010 memo.
5 We clarify that either defect, contents or timeliness, would have been sufficient by
itself to disqualify the purported retraction from nullifying the coercive impact on Nelson of
the mid-September 2010 memo.
10

ORDER	ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that Jurupa Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.S(a). The District
violated EERA by informing Ermine Fredrica Nelson (Nelson) that her employment with the
District had been terminated effective March 3, 2010 in retaliation for her participation in
protected activity.
Pursuant to EERA section 3541.S(c) of the Government Code, it hereby is ORDERED
that the District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against Nelson by inaccurately informing her that her
employment with the District had been terminated.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Within ten (10) working days following the date this decision is no
longer subject to appeal, rescind the September 15, 2010 letter issued to Nelson.
2.
11
Within ten ( 10) workdays of the service of a final decision in this matter,
post at all work locations where notices to certificated employees in the District customarily
are posted, copies of the Notice attached hereto as an Appendix. 	The Notice must be signed by
an authorized agent of the District, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. 	Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
11

3.	
Written notification
of
the actions taken to comply with this Order shall
be made to the Office
of
the General Counsel
of
the Public Employment Relations Board
or
the
General Counsel's designee. The District shall provide reports, in writing, as directed by the
General Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on Nelson.
Chair Martinez and Member Banks joined in this Decision.
12
3 . 	Written notification of the actions taken to comply with this Order shall
be made to the Office of the General Counsel of the Public Employment Relations Board or the
General Counsel's designee. The District shall provide reports, in writing, as directed by the
General Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on Nelson.
12
Chair Martinez and Member Banks joined in this Decision.

APPENDIX 
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
Practice Case No. LA-CE-5517-E, Ermine Fredrica Nelson
v.	
After a hearing in Unfair
Jurupa Unified School District, in which all parties had the right to participate, it has
been
found that the Jurupa Unified School District (District) violated the Educational
Employment
Relations Act (EERA), Government Code section 3540 et seq. by informing Ermine
Fredrica
Nelson (Nelson) that her employment with the District had been terminated in retaliation for
her participation in protected activity.
conduct,	As a result
of
this 	we have been ordered to post this Notice and we will:
A.	
CEASE AND DESIST FROM:
1.	
Retaliating against Nelson by inaccurately informing her that her
employment with the District had been terminated.
B.	
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Nelson.	Rescind the September 15, 2010 letter issued to
Dated: 	JURUPA UNIFIED SCHOOL DISTRICT
By: Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
------------
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5517-E, Ermine Fredrica Nelson v.
Jurupa Unified School District, in which all parties had the right to participate, it has been
found that the Jurupa Unified School District (District) violated the Educational Employment
Relations Act (EERA), Government Code section 3540 et seq. by informing Ermine Fredrica
Nelson (Nelson) that her employment with the District had been terminated in retaliation for
her participation in protected activity.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	AND DESIST FROM:	EASE	C
1 . 	Retaliating against Nelson by inaccurately informing her that her
employment with the District had been terminated.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1 . 	Rescind the September 15, 2010 letter issued to Nelson.
Dated: 	JURUPA UNIFIED SCHOOL DISTRICT
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ERMINE FREDRICA NELSON,
Charging Party,
V..
JURUP A UNIFIED SCHOOL DISTRICT,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5517-E
PROPOSED DECISION
(3/16/2012)
Appearances:	Appearances: Richard Ackerman, Attorney, for Ermine Fredrica Nelson; Fagen Friedman &
Fulfrost, LLP, by Kerrie Taylor, Attorney, for Jurupa Unified School District.
Before Eric J. Cu, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, it is alleged that a public school district employer retaliated against one of
its teachers by either terminating or stating that it had terminated that teacher's employment.
The employer denies a violation.
On December 3, 2010, Charging Party Ermine Fredrica Nelson filed an unfair practice
charge with the Public Employment Relations Board (PERB or Board) against the Respondent,
Jurupa Unified School District (District), alleging multiple violations of the Educational
Employment Relations Act (EERA).1 On April 11, 2011, Nelson filed an amended charge. On
April 18, 2011, the PERB Office of the General dismissed all of the allegations in the charge
except the claim that the District violated EERA section 3543.S(a) by informing Nelson that
she had been terminated from her position at the District. 2 On that claim, the General
Counsel's Office issued a complaint. 	On April 29, 2011, the District filed an answer to the
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.
2 No exceptions were filed to the partial dismissal.

complaint, admitting only that it is a public school employer within the meaning
of
EERA
section 3540.1 (k), and denying all other allegations. The District also asserted multiple
affirmative defenses. An informal conference was scheduled
to
discuss settlement but Nelson
did not appear.
On January 24, 2012, PERB held a formal hearing. 	On February 29, 2012, the District
filed its closing brief according to the schedule agreed-upon by the parties. Nelson did not file
a closing brief. The record is now closed and the matter is submitted to PERB for a decision.
FINDINGS OF FACT
The Parties
The District is a public school employer within the meaning
of
EERA
section 3540.l(k). Nelson was hired by the District as a teacher in 1998 and was therefore a
public school employee within the meaning ofEERA section 3540.l(i). At the time
of
the
incidents described in the PERB complaint, Nelson was on the District's 39-month
reemployment list.
The Teachers Association and the Negotiated Grievance Procedure
The National Education Association
of
Jurupa (Association) is an employee
organization that represents the interests
of
teachers at the District. At all relevant times, the
District and the Association were signatories to a collective bargaining agreement (CBA)
containing a grievance procedure that culminates in binding arbitration. The District also has
a separate "complaint procedure" to resolve complaints not involving the CBA.
section	CBA Article XXI, 	1(A) describes a grievance as an allegation that the District
violated terms of the CBA. 	Section 1(B) defines a "grievant" as "a unit member or group of
unit members or the Association[.]"
2
complaint, admitting only that it is a public school employer within the meaning of EERA
section 3540.1(k), and denying all other allegations. The District also asserted multiple
affirmative defenses. An informal conference was scheduled to discuss settlement but Nelson
did not appear.
On January 24, 2012, PERB held a formal hearing. On February 29, 2012, the District
filed its closing brief according to the schedule agreed-upon by the parties. Nelson did not file
a closing brief. The record is now closed and the matter is submitted to PERB for a decision.
FINDINGS OF FACT
The Parties
The District is a public school employer within the meaning of EERA
section 3540.1(k). Nelson was hired by the District as a teacher in 1998 and was therefore a
public school employee within the meaning of EERA section 3540.1(j). At the time of the
incidents described in the PERB complaint, Nelson was on the District's 39-month
reemployment list.
The Teachers Association and the Negotiated Grievance Procedure
The National Education Association of Jurupa (Association) is an employee
organization that represents the interests of teachers at the District. At all relevant times, the
District and the Association were signatories to a collective bargaining agreement (CBA)
containing a grievance procedure that culminates in binding arbitration. The District also has
a separate "complaint procedure" to resolve complaints not involving the CBA.
CBA Article XXI, section 1(A) describes a grievance as an allegation that the District
violated terms of the CBA. Section 1(B) defines a "grievant" as "a unit member or group of
unit members or the Association[.]"

District Assistant Superintendent of Personnel Services, Tamara Elzig testified that
only "active" employees may file grievances. 	Elzig defines "active" employees as those who
either have a current job assignment with the District or are using medical leave. Elzig
testified that individuals on the 39-month reemployment list are considered "inactive"
employees and lack standing to file grievances under the CBA.
Nelson's Leave of Absence From the District
In or around September 2009, Nelson requested to be placed on medical leave
supported by a letter from her physician. The District granted Nelson's request.
On January 21, 2010, the District sent Nelson a letter stating in relevant part:
The purpose of this letter is to notify you that in accordance with
Education Code Section 44978.1 (see attached), you may be
placed on a 39-month re-employment list for your position as
Teacher effective March 3, 2010. This action occurs
automatically when an employee exhausts all entitlement to any
form of paid leave .of absence status (to include sick leave and
5 month differential leave).
The District's letter included the text of Education Code section 44978.1. 3 The District further
informed Nelson that: "If, at anytime [sic] during the 39-months you are physically able to
resume your duties (with appropriate written verification from a doctor) as a Teacher, please
ducation Code section 44978. 1 states in relevant part:
When a certificated employee has exhausted all available sick
leave, including accumulated sick leave, and continues to be
absent on account of illness or accident for a period beyond the
five-month period provided pursuant to Section 44977, and the
employee is not medically able to resume the duties of his or her
position, the employee shall, if not placed in another position, be
placed on a reemployment list for a period of 24 months if the
employee is on probationary status, or for a period of 39 months
if the employee is on permanent status. When the employee is
medically able, during the 24- or 39-month period, the
certificated employee shall be returned to employment in a
position for which he or she is credentialed and qualified.
EEducation Code section 44978.1 states in relevant part:
When a certificated employee has exhausted all available sick
leave, including accumulated sick leave, and continues to be
absent on account of illness or accident for a period beyond the
five-month period provided pursuant to Section 44977, and the
employee is not medically able to resume the duties of his or her
position, the employee shall, if not placed in another position, be
placed on a reemployment list for a period of 24 months if the
employee is on probationary status, or for a period of 39 months
if the employee is on permanent status. When the employee is
medically able, during the 24- or 39-month period, the
certificated employee shall be returned to employment in a
position for which he or she is credentialed and qualified.
3

contact the Personnel Department and you will be offered employment in a position for which
you are credentialed and qualified."
After not hearing that Nelson was able to return to a job assignment, on March 1, 2010,
the Board of Education (District Board) placed Nelson on the 39-month reemployment list,
effective March 3, 2010.
On March 2, 2010, the District issued Nelson another letter stating in relevant part:
The purpose of this letter is to notify you that in accordance
with Education Code Section 44978.1, you have been placed
on a 3 9-month reemployment list for the position of Teacher
effective March 3, 2010. This action occurs automatically when
an employee exhausts all entitlement to any form of paid leave of
absence status.
If, at any time during the 39-month period, you are physically
able to resume your duties as a Teacher, please contact the
Personnel Department and you will be offered employment in a
position for which you are credentialed and qualified.
On or around August 3, 2010, Nelson filed a series of grievances and other complaints
with the District. Each grievance or complaint was filed on a form labeled "JurupaJurupa
Unified School District, Riverside, California Complaint Form, Level I." Some of the
grievances or complaints listed specific sections of the CBA at issue. 	On other forms, Nelson
did not identify a CBA section and instead raised other types of claims such as violations of
State and/or federal statutes.
On September 15, 2010, District Superintendent Elliot Duchon issued Nelson a
memorandum in response to her August 3, 2010 filings. In the memorandum, Duchon stated in
relevant part:
After careful review, the District must reject your
complaints/grievances on the grounds that you are no longer an
employee of the District and lack standing to bring such
complaints and grievances. 	Further, most or all of your
4

complaints/grievances are untimely and/or have already been
addressed (via grievance or complaint procedures).
Pursuant to Education Code section 44978 .1, your employment
with the District was terminated on March 3, 2010, after you
exhausted all current and accrued leaves and were medically
unable to return to work.
On July
7,
2011, the District sent Nelson a letter "to clarify [her] rights under Education
Code 44978.1 following the correspondence you received from the Jurupa Unified School
District ("District") dated September 15, 2010 in response to your August 3, 2010
complaints/grievances." The District stated:
You remain on the reemployment list. In the event you are
medically able to return to work as a teacher, you will be returned
to a classroom in compliance with Education Code 44978.1. The
District's September 15, 2010 correspondence to you did not
change or otherwise impact your status on the medical 39-month
reemployment list. You have been in the same employment
status since March 3, 2010.
that	The letter includes a proof
of
service indicating 	one
of
Elzig's staff sent the letter
to Nelson's current address. Nelson does not recall receiving the letter. Other than in
documents relating to this case, the District has not communicated with Nelson further.
ISSUES
1.	
Is Nelson a "public school employee" within the meaning
of
EERA
section 3
54,0
.1
G),
while on the District's 39-month reemployment list?
2. 	Was the District's September 15, 2010 letter sent in retaliation for Nelson's
grievance activity?
5
unable to return to work.
1 .
section 3540.1(j), while on the District's 39-month reemployment list?
2.
complaints/grievances are untimely and/or have already been
addressed (via grievance or complaint procedures).
Pursuant to Education Code section 44978.1, your employment
with the District was terminated on March 3, 2010, after you
exhausted all current and accrued leaves and were medically
On July 7, 2011, the District sent Nelson a letter "to clarify [her] rights under Education
Code 44978.1 following the correspondence you received from the Jurupa Unified School
District ("District") dated September 15, 2010 in response to your August 3, 2010
complaints/grievances." The District stated:
You remain on the reemployment list. In the event you are
medically able to return to work as a teacher, you will be returned
to a classroom in compliance with Education Code 44978.1. The
District's September 15, 2010 correspondence to you did not
change or otherwise impact your status on the medical 39-month
reemployment list. You have been in the same employment
status since March 3, 2010.
t	T 	hat	he letter includes a proof of servic	The letter includes a proof of service indicating
to Nelson's current address. Nelson does not recall receiving the letter. Other than in
documents relating to this case, the District has not communicated with Nelson further.
ISSUES
Is Nelson a "public school employee" within the meaning of EERA
Was the District's September 15, 2010 letter sent in retaliation for Nelson's
grievance activity?

CONCLUSIONS OF LAW
1. 	Nelson's Employment Status
In its answer to the PERB complaint, the District denied that Nelson is an employee
within the meaning
of
EERA section 3540.lG) because, at the time
of
her actions in this case,
she was on the District's 39-month reemployment list. This issue was addressed by the Board
in Santa Ana Educators Association (Felicijan & Hetman) (2009) PERB Decision No. 2008
(Santa Ana Educators). In that case, the Board held that "placement
of
an employee on a
Education Code section 44978.1 does not constitute a	39-month reemployment list pursuant to
separation from service. Thus, a person on that list remains an employee
of
the school district
throughout the 39-month period." (Ibid.) The Board reasoned that Education Code
section 4497 8.1, unlike other forms
of
absence under the Education Code, provides an
unconditional right for certificated employees to return to a job assignment. The Board likened
the 39-month reemployment list for certificated employees to a right to extended unpaid leave.
(Ibid.) The Board also found that the charging parties remained members
of
the bargaining
unit represented by the respondent union and that the respondent owed charging parties a duty
of
fair representation. (Ibid.)
Nelson	In this case, it is undisputed that 	is on the District's 39-month reemployment
list. Thus, she remains an employee
of
the District within the meaning
of
EERA
section 3540. IG) and a unit member represented by the Association.
2. 	Discrimination/Retaliation
2010	Nelson alleges that the September 15, 	letter was sent in retaliation for her
grievance activity. To demonstrate that an employer discriminated or retaliated against an
employee in violation ofEERA 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
6
CONCLUSIONS OF LAW
1. 	Nelson's Employment Status
In its answer to the PERB complaint, the District denied that Nelson is an employee
within the meaning of EERA section 3540.1(j) because, at the time of her actions in this case,
she was on the District's 39-month reemployment list. This issue was addressed by the Board
in Santa Ana Educators Association (Felicijan & Hetman) (2009) PERB Decision No. 2008
(Santa Ana Educators). In that case, the Board held that "placement of an employee on a
39-month reemployment list pursuant to Education Code section 44978.1 does not constitute a
separation from service. Thus, a person on that list remains an employee of the school district
throughout the 39-month period." (Ibid.) The Board reasoned that Education Code
section 44978.1, unlike other forms of absence under the Education Code, provides an
unconditional right for certificated employees to return to a job assignment. The Board likened
the 39-month reemployment list for certificated employees to a right to extended unpaid leave.
(Ibid.) The Board also found that the charging parties remained members of the bargaining
unit represented by the respondent union and that the respondent owed charging parties a duty
of fair representation. (Ibid.)
In this case, it is undisputed that Nelson is on the District's 39-month reemployment
list. Thus, she remains an employee of the District within the meaning of EERA
section 3540.1(i) and a unit member represented by the Association.
2. 	Discrimination/Retaliation
Nelson alleges that the September 15, 2010 letter was sent in retaliation for her
grievance activity. 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).) 	Once the charging party demonstrates a prima facie case,
the burden shifts to the employer
to
demonstrate that it would have taken the same actions
regardless
of
the protected activity. ( Oakland Unified School District (2007) PERB Decision
No. 1880, citing Novato, supra, PERB Decision No. 210.)
Exercise
of
Protected Rights With the District's Knowledge
PERB has previously found that filing grievances to enforce contractual rights
constitutes protected activity. (Ventura County Community College District (1999) PERB
Decision No. 1323, other citations omitted.) In this case, on August 3, 2010, Nelson filed a
series
of
complaints about the District's conduct. At least some
of
these complaints complied
with the grievance procedure in the CBA and could therefore be considered as grievances. On
September 15, 2010, the District acknowledged receiving her complaints and processed them
under both the CBA grievance procedure and the District's other complaint resolution
procedure. This is sufficient to demonstrate that Nelson participated in protected activity with
the District's knowledge.4
Adverse Action
The PERB complaint alleges in paragraph
5:
or	On 	about September 15, 2010, Respondent, acting through its
agent Elliot Duchon, took adverse action against Ms. Nelson by
informing her that she had been terminated from her position as
of March 3, 2010.
Even if these complaints did not constitute actual grievances, as contended in the
District's answer to the PERB complaint, the fact that the District considered the complaints to
be grievances and processed them accordingly is sufficient to meet the first two elements of the
1714	retaliation analysis.	(Simi Valley Unified School District (2004) PERB Decision No.
[holding that employer liable for retaliation if it takes action against an employee based upon
even a mistaken belief that she engaged in protected activity].)
7	7
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).) Once the charging party demonstrates a prima facie case,
the burden shifts to the employer to demonstrate that it would have taken the same actions
regardless of the protected activity. (Oakland Unified School District (2007) PERB Decision
No. 1880, citing Novato, supra, PERB Decision No. 210.)
Exercise of Protected Rights With the District's Knowledge
PERB has previously found that filing grievances to enforce contractual rights
constitutes protected activity. (Ventura County Community College District (1999) PERB
Decision No. 1323, other citations omitted.) In this case, on August 3, 2010, Nelson filed a
series of complaints about the District's conduct. At least some of these complaints complied
with the grievance procedure in the CBA and could therefore be considered as grievances. On
September 15, 2010, the District acknowledged receiving her complaints and processed them
under both the CBA grievance procedure and the District's other complaint resolution
procedure. This is sufficient to demonstrate that Nelson participated in protected activity with
Adverse Action
The PERB complaint alleges in paragraph 5:
On or about September 15, 2010, Respondent, acting through its
agent Elliot Duchon, took adverse action against Ms. Nelson by
informing her that she had been terminated from her position as
of March 3, 2010.
# Even if these complaints did not constitute actual grievances, as contended in the
District's answer to the PERB complaint, the fact that the District considered the complaints to
be grievances and processed them accordingly is sufficient to meet the first two elements of the
retaliation analysis. (Simi Valley Unified School District (2004) PERB Decision No. 1714
[holding that employer liable for retaliation if it takes action against an employee based upon
even a mistaken belief that she engaged in protected activity].)
the District's knowledge.*

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.) In Fallbrook Union Elementary School District (2011) PERB Decision No. 2171,
the Board found that "[t]here is no more adverse action than termination." Similarly, the
Board has found that removing a teacher's name from a list
of
active substitute teachers was an
adverse action because it foreclosed any possibility for that teacher to receive substitute
assignments. (Sacramento City Unified School District (2010) PERB Decision No. 2129.)
Accordingly, the District may have committed an adverse action
if
it either terminated
Nelson's employment or otherwise took action to preclude her from employment opportunities
for which she was eligible.
In this case, however, the record shows that Nelson is on the District's 39-month
reemployment list. Placement on the list means Nelson remains a District employee.
(Santa Ana Educators, supra, PERB Decision No. 2008.) Other than the District's
September 15, 2010 letter, Nelson has not provided any evidence disputing this fact. 	Nelson
has not demonstrated, for example, that the District removed her from its 39-month
reemployment list or that it began any employee termination proceedings. Thus, the District's
8
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
he action to have an adverse impact on the employee's	t
employment.
Newark Unified School District (1991) PERB	( 	Decision No. 864; emphasis added; footnote
omitted.) In Fallbrook Union Elementary School District (2011) PERB Decision No. 2171,
the Board found that "[there is no more adverse action than termination." Similarly, the
Board has found that removing a teacher's name from a list of active substitute teachers was an
adverse action because it foreclosed any possibility for that teacher to receive substitute
assignments. (Sacramento City Unified School District (2010) PERB Decision No. 2129.)
Accordingly, the District may have committed an adverse action if it either terminated
Nelson's employment or otherwise took action to preclude her from employment opportunities
for which she was eligible.
In this case, however, the record shows that Nelson is on the District's 39-month
reemployment list. Placement on the list means Nelson remains a District employee.
(Santa Ana Educators, supra, PERB Decision No. 2008.) Other than the District's
September 15, 2010 letter, Nelson has not provided any evidence disputing this fact. Nelson
has not demonstrated, for example, that the District removed her from its 39-month
reemployment list or that it began any employee termination proceedings. Thus, the District's

September 15, 2010 letter notwithstanding, Nelson has not established that the District actually
terminated her employment. (See Santa Ana Educators, supra, PERB Decision No. 2008.)
Irrespective of whether the District actually terminated Nelson's employment, the
notifying	District may nevertheless have committed an adverse action by 	Nelson that her
employment had ended. As expected, not much case law exists addressing this unusual set of
facts. 	PERB has found, however, that when an employer gives "unequivocal notice" of its
intent to impose a negative employment action, "the notice itself constituted an adverse
action." (County of Merced (2008) PERB Decision No. 1975-M.) In that case, an employer's
unequivocal notice that an employee had to vacate an employer-owned residence was an
adverse action. (See also Monterey County Office of Education (1991) PERB Decision
No. 913 [notice of intent to dismiss was an adverse action].) The Board in County of Merced
also found that notice that an employer would "begin the Intent to Terminate process" was not
sufficiently definite to demonstrate an adverse action. (See also State of California
(Department of Health Services) (1999) PERB Decision No. 1357-S.) In other cases, the
Board found that an employer's statements that were unrelated to employment were not
adverse actions. (Los Rios Community College District (1994) PERB Decision No. 1048; State
of California (Department of Corrections and Rehabilitation) (2009) PERB Decision
No. 2024-S.)
In this case, the District's September 15, 2010 letter stated that Nelson was "no longer
an employee of the District[,]" and that her "employment with the District was terminated on
March 3, 2010, after [she] exhausted all current and accrued leaves and [was] medically unable
to return to work." Unlike the statements regarding termination in 	the	County of Merced,
District in this case unequivocally told Nelson that it had terminated her employment. Any
person would consider such statements, made by the highest-ranking administrator at the
9

District, to be adverse to employment. 	(Newark Unified School District, supra, PERB
Decision No. 864.)
On July 7, 2011, the District sent Nelson a letter to "clarify" its September 15, 2010
letter. 5 PERB has held that an "honestly given retraction" pacifies an otherwise illegal
statement if it "was made in a manner that completely nullified the coercive effects of the
earlier statement." (Sacramento City Unified School District (1985) PERB Decision No. 492.)
In Carlsbad Unified School District (1989) PERB Decision No. 778 (Carlsbad), an employee
relations director informed his secretary that she could not serve on the union's bargaining
team. 	Immediately, upon discovery of the director's statement, the superintendent informed
the secretary that she could serve on the negotiating team. The Board found only
"de minimus" harm to rights and therefore found no violation.
The District's July 7, 2011 letter did not completely nullify the adverse effects of
Duchon's September 15, 2010 letter. Although Elzig stated that Nelson remained on the
District's 39-month reemployment list, nothing explained Nelson's employment had not been
terminated. This fact could only be inferred if Nelson understood the relationship between
Education Code section 44 798.1 and its impact on the definition of an employee. In addition,
unlike in Carlsbad, supra, PERB Decision No. 778, the July 7, 2011 letter was sent almost
10 months after its earlier statements. The length of time it took to correct its positions is
significant. Moreover, the District took a number of contradictory positions on the matter.
The District initially denied that Nelson was an employee. Then, Elzig testified that Nelson
Nelson does not recall receiving the July 7, 2011 letter. Evidence Code section 641
states: "A letter correctly addressed and properly mailed is presumed to have been received in
the ordinary course of mail." PERB recognized this presumption in Fall brook Public Utility
District (2011) PERB Decision No. 2229-M. In this case, it is undisputed that the letter in
question was properly addressed and mailed by the District. A proof of service to Nelson's
current address was included with the letter. This is sufficient to establish a presumption that
Nelson received the letter.
10	10

was an "inactive" employee. In its closing brief, the District argued that Nelson was not an
employee for purposes
of
the CBA. The District's inconclusive statements in the July 7, 2011
letter, coupled with its inconsistent positions on that matter,
do
not constitute a retraction.
Nexus
The final element
of
a retaliation case is establishing a causal connection between the
employer's adverse action and the charging party's protected conduct. The temporal proximity
between these two events is an important factor for establishing that nexus (North Sacramento
School District (1982) PERB Decision No. 264), but is not sufficient to demonstrate a causal
connection. (Moreland Elementary School District (1982) PERB Decision No. 227.) Facts
establishing one or more
of
the following additional factors must also be present: (1) the
employer's disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the employer's departure from
established procedures and standards when dealing with the employee (Santa Clara Unified
School District (1979) PERB Decision No. 104); (3) the employer's inconsistent or
contradictory justifications for its actions (State
of
California (Department
of
Parks and
Recreation) (1983) PERB Decision No. 328-S); (4) the employer's cursory investigation
of
the
employee's misconduct (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 (Oakland Unified School District
(2003) PERB Decision No. 1529) or the offering of exaggerated, vague, or ambiguous
reasons (McFarland Unified School District (1990) PERB Decision No. 786); (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
11
was an "inactive" employee. In its closing brief, the District argued that Nelson was not an
employee for purposes of the CBA. The District's inconclusive statements in the July 7, 2011
letter, coupled with its inconsistent positions on that matter, do not constitute a retraction.
Nexus
11
The final element of a retaliation case is establishing a causal connection between the
employer's adverse action and the charging party's protected conduct. The temporal proximity
between these two events is an important factor for establishing that nexus (North Sacramento
School District (1982) PERB Decision No. 264), but is not sufficient to demonstrate a causal
connection. (Moreland Elementary School District (1982) PERB Decision No. 227.) Facts
establishing one or more of the following additional factors must also be present: (1) the
employer's disparate treatment of the employee (State of California (Department of
Transportation) (1984) PERB Decision No. 459-S); (2) the employer's departure from
established procedures and standards when dealing with the employee (Santa Clara Unified
School District (1979) PERB Decision No. 104); (3) the employer's inconsistent or
contradictory justifications for its actions (State of California (Department of Parks and
Recreation) (1983) PERB Decision No. 328-S); (4) the employer's cursory investigation of the
employee's misconduct (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 (Oakland Unified School District
(2003) PERB Decision No. 1529) or the offering of exaggerated, vague, or ambiguous
reasons (McFarland Unified School District (1990) PERB Decision No. 786); (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)	7) any other facts that might demonstrate the employer's unlawful motive. (Nor

Sacramento School District, supra, PERB Decision No. 264; Novato, supra, PERB Decision
No. 210.)
In at least one sense, it is undisputed that the District issued the September 15, 2010
letter because
a/Nelson's
grievances; the District's letter responded to the grievances. 	That
does not necessarily mean that the District's motives were unlawful.
Regarding timing, the September 15, 2010 letter was issued less than two months from
Nelson's August 3, 2010 grievances, which has been found to be sufficiently close in time to
support a causal connection. (Escondido Union Elementary School District (2009) PERB
Decision No. 2019.)
Furthermore, the District's letter provided the first
of
multiple differing justifications
for denying Nelson's grievances. In the letter, the District informed Nelson that she could not
file grievances because she was no longer a District employee. Then, at the hearing, Elzig
acknowledged that Nelson was an employee, but she was "inactive," making her ineligible to
file grievances. In its closing brief, the District argued that Nelson remains an employee for
the purposes
of
EERA only and that she is not an employee according to the CBA. All
of
these
explanations are unsupported. As explained above, certificated personnel on a 3 9-month
reemployment list are both employees and unit members. (Santa Ana Educators, supra, PERB
Decision No. 2008.) And, under the CBA, any unit member may file a grievance. Nothing in
the provided sections
of
the CBA suggests a definition
of
either "employee" or "unit member"
that is contrary to the Santa Ana Educators definitions. The District's statements are therefore
inconsistent with its own practices, which is evidence that the District had an unlawful motive.
(Santa Clara Unified School District, supra, PERB Decision No. 104.) Moreover, PERB has
found that shifting justifications and the failure to follow existing procedures to be
circumstantial evidence of unlawful animus towards protected activity. (Los Angeles Unified
12	12
Sacramento School District, supra, PERB Decision No. 264; Novato, supra, PERB Decision
No. 210.)
In at least one sense, it is undisputed that the District issued the September 15, 2010
letter because of Nelson's grievances; the District's letter responded to the grievances. That
does not necessarily mean that the District's motives were unlawful.
Regarding timing, the September 15, 2010 letter was issued less than two months from
Nelson's August 3, 2010 grievances, which has been found to be sufficiently close in time to
support a causal connection. (Escondido Union Elementary School District (2009) PERB
Decision No. 2019.)
Furthermore, the District's letter provided the first of multiple differing justifications
for denying Nelson's grievances. In the letter, the District informed Nelson that she could not
file grievances because she was no longer a District employee. Then, at the hearing, Elzig
acknowledged that Nelson was an employee, but she was "inactive," making her ineligible to
ile grievances. In its closing brief, the District argued that Nelson remains an employee for	f
the purposes of EERA only and that she is not an employee according to the CBA. All of these
explanations are unsupported. As explained above, certificated personnel on a 39-month
reemployment list are both employees and unit members. (Santa Ana Educators, supra, PERB
Decision No. 2008.) And, under the CBA, any unit member may file a grievance. Nothing in
the provided sections of the CBA suggests a definition of either "employee" or "unit member"
that is contrary to the Santa Ana Educators definitions. The District's statements are therefore
inconsistent with its own practices, which is evidence that the District had an unlawful motive.
(Santa Clara Unified School District, supra, PERB Decision No. 104.) Moreover, PERB has
found that shifting justifications and the failure to follow existing procedures to be
circumstantial evidence of unlawful animus towards protected activity. (Los Angeles Unified

fluctuating	School District (1992) PERB Decision No. 957.) The District's 	positions on this
issue, each without basis, demonstrate animosity towards Nelson's use
of
the grievance
process.6 And because all
of
the other elements
of
a retaliation claim are met, Nelson has
established a prima facie case. 7
REMEDY
It
has been found that the District issued the September 15, 2010 letter in retaliation for
Nelson's August 3, 2010 grievance activity. By this conduct, the District interfered with
Nelson's protected rights in violation
of
EERA section 3543.5(a).
It
is appropriate to order the
District to cease and desist from such conduct.
It
is also appropriate to order the District to restore the status quo ante. (Baker Valley
Unified School District (2008) PERB Decision No. 1993 (Baker Valley).) Accordingly, the
District is ordered to rescind the September
15,
2010 letter. It is noted that nothing in this
order affects Nelson's actual employment status at the District.
It
is also appropriate that the District be ordered to post a notice incorporating the terms
of
this order at all locations where notices to certificated employees are customarily posted.
Posting such a notice, signed by an authorized agent
of
the District, will provide employees
with notice that the District acted in an unlawful manner, is being required to cease and desist
from such activity, and will comply with the order. It effectuates the purpose
of
EERA that
6 violated	The PERB complaint does not allege that the District 	EERA by failing to
process Nelson's August 3, 2010 grievances and/or complaints. Therefore, this issue will not
be addressed.
7 The District does not argue that it would have sent the September 15, 2010 letter even
if Nelson did not file any grievances. Because it is undisputed that the letter responded to
those grievances, it is doubtful such a showing could be made. Therefore, the District has not
rebutted the prima facie case. 
13	13

employees be informed of the resolution of this controversy and the District's willingness to
comply with the ordered remedy. (Baker Valley, supra, PERB Decision No. 1993.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Jurupa Unified School District (District) violated the Educational
Employment Relations Act (Act), Government Code section 3543.S(a). The District violated
the Act by informing Ermine Fredrica Nelson that her employment with the Districthad been
terminated effective March 3, 2010 in retaliation for her participation in protected activity.
Pursuant to section 3541.S(c) of the Government Code, it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE	EASE AND DESIST FROM:	AND DESIST FROM:	A. 	C
1 .	1. 	Retaliating against Ermine Fredrica Nelson by inaccurately informing	etaliating against Ermine Fredrica Nelson by inaccurately informing
her that her employment with the District had been terminated.	her that her employment with the District had been terminated.
R
B.	B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1 .	1. 	Within ten (10) working days following the date this Decision is no
longer subject to appeal, rescind the September 15, 2010 letter issued to Nelson.
2.2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to certificated employees in the District customarily
are posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by
an authorized agent of the District, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. 	Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
14	14

3.	
Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Nelson.
Pursuant to California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Board itself within 20 days
of
service
of
this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit.
8,
§ 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§
32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business tog~ther 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,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090 and 32130~)
15
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Nelson.
15
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment R	P 	elations	ublic
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322	(916)
AX: (916) 327-7960	F
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, $ 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, $8 32135, subd. (a) and 32130; see also Gov. Code,
$ 1 1020, subd. (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, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, $$ 32090 and 32130.)

Any statement
of
exceptions and supporting brief must be served concurrently
with
its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit.
8, §§
32300, 32305, 32140,
and 32135, subd. (c).)
Eric
J.
Cu
Administrative Law Judge
16
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $5 32300, 32305, 32140,
and 32135, subd. (c).)
Eric J. Cu
Administrative Law Judge
16