Santa Maria Joint Union High School District (PERB 2445E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA MARIA JOINT UNION HIGH SCHOOL
DISTRICT,
Charging Party,
v.
SANTA MARIA JOINT UNION HIGH SCHOOL
DISTRICT FACULTY ASSOCIATION,
Respondent.
Case No. LA-CO-1624-E
PERB Decision No; 2445
July 31, 2015
Appearance: Kronick, Moskovitz, Tiedemann & Girard by Christian M. Keiner and
Chelsea Olson, Attorneys, for Santa Maria Joint Union High School District.
Before Martinez, Chair; Banks and Gregersen, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Santa Maria Joint Union High School District (District) of a
dismissal (attached) of its unfair practice charge by the Office of the. General Counsel. The
charge, as amended, alleges that the Santa Maria Joint Union High School District Faculty
Association (Association) violated section 3543.6, subdivision (a), of the Educational
Employment Relations Act (EERA) by causing or attempting to cause the District to commit
an unfair practice. The Office of the General Counsel dismissed the charge for failure to state
a prima facie case, The District timely filed an appeal.
1 The EERA is codified at Government Code section 3540 et seq. Further code section
references are to the Government Code.
2 The Association did not file an opposition to the appeal.
2
1

The Board itself has reviewed this matter in full in consideration
of
the issues raised on
appeal. The warning and dismissal letters accurately describe the allegations
of
the charge,
and are well-reasoned and consistent with applicable law. For reasons discussed herein, we
find no merit
in
the District's appeal. Accordingly, we hereby affirm the dismissal
of
the
charge and adopt the warning and dismissal letters as the decision
of
the Board itself for the
reasons discussed below.
SUMMARY OF FACTUAL ALLEGATIONS3
The District and the Association are parties to a collective bargaining agreement (CBA)
covering the certificated employee bargaining unit. 	The Association Chapter President is
Mark Goodman (Goodman). Glenn Goldin (Goldin) is a special education teacher. The
3 On review
of
a dismissal
of
an unfair practice charge
by
the Office
of
the General
Counsel, we assume the truth
of
the charging party's factual allegations. (San Juan Unified
School District (1977) EERB Decision No. 12, p. 5; Golden Plains Unified School District
(2002) PERB Decision No. 1489, p. 6.) We may also consider information provided
by
the
respondent that is submitted in compliance with PERB Regulation 32620, subdivision (c),
which requires that any response to a charge be signed under penalty
of
perjury with the
declaration that the response is true and complete to the best
of
respondent's knowledge
and belief. (Service Employees International Union #790 (Adza) (2004) PERB Decision
No. 1632-M.) The Association's position statement complies with this requirement. (Prior to
1978, PERB was known as the Educational Employment Relations Board (EERB); PERB regs.
are codified at Cal. Code Regs., tit. 8, sec. 31001, et seq.)
The Association's position statement, and the District's first amended charge, includes
a copy
ofits
related unfair practice charge against the District in Case No. LA-CE-5938-E,
of
which we take official notice. In creating the factual summary for this decision, the Board has
relied on information contained in the Association's related charge only where not contradicted
or disputed by the District's allegations; and only where necessary to provide a more complete
picture
of
the relevant factual circumstances. In so doing, we are mindful
of
the rule that
where the charging party and the respondent offer conflicting versions
of
the facts, we must
accept the version most favorable to charging party's case. (California School Employees
Association & its Chapter 244 (Gutierrez) (2004) PERB Decision No. 1606, pp. 3~4.) In
relying on information provided by the Association in its position statement for our factual
summary, including allegations in the Association's charge against the District, we express no
opinion on the sufficiency or merits of the Association's charge.
2

District hired Goldin
in
August 2013.4 His classroom is based at the Santa Maria campus, but
he teaches special education students from all
of
the District's four comprehensive high
schools. Goldin is supervised and evaluated
by
the Santa Maria principal, Joe Domingues
(Domingues); is paid through funding allocated for Santa Maria; is part of, and attends
meetings of, the Santa Maria special education department; and is identified
on
District and
Santa Maria documents, including his identification badge and business cards, as being
employed
by
the District at the Santa Maria campus.
According to the District, Goldin has been an outspoken critic
of
the current
Association leadership. In support
of
this assertion, the District alleges that Goldin has
discussed "issues with his fellow Association members such as teacher health benefits and
negotiation strategies, [and] advocating for an approach which differed from the Association
leadership." During the 2013-2014 school year (Goldin's first year
of
employment with the
District), Goldin ran against Goodman for Chapter President for the following school year, and
lost.
In or about March 2014, District departments solicited nominations for open department
chair seats at all four comprehensive high schools for the 2014-2015 and 2015-2016 school
years. Department chairs serve two-year terms, are elected
by
their respective constituencies at
each school, 	and are paid a nine to ten-and-a-half percent stipend for performing department
chair responsibilities. Goldin was nominated to serve as co-chair
of
Santa Maria's special
education department along with Matt Andree (Andree), another Santa Maria special education
teacher. An issue arose concerning Goldin's eligibility because the Association viewedhim as
5
4 Prior to that, Goldin worked on campus at the Santa Maria High School (Santa Maria)
as an employee
of
the Santa Barbara County Office
of
Education for approximately 18 years.
5 Although the charge does not define ''constituency," we understand from the overall
charge allegations it to mean the teachers within a particular department eligible to vote in an
election for the chair of that department.
3

"a
District employee rather than a site employee" in that "he supports students from all four (4)
comprehensive high schools" in his classroom at Santa Maria.
According to the Association, the Association is responsible for conducting elections
for department chair positions pursuant to an agreement between the Association and the
District dating back to 2002. The District does not dispute this assertion, but alleges that the
Association has no authority to determine who is a District employee and who is a site
employee, and disputes the Association's assertion that, Goldin is a District employee.
On March 28, 2014, there was an internal union e-mail exchange, a copy
of
which is
attached to the District's first amended charge. Based on the context
of
the message, we
assume that "Sue" is Sue Savins, a member
of
the Association's Election Committee (see
Election Committee letter
of
April 15, 2014, quoted below) and "Mark" is Mark Goodman,
Chapter President. It states in pertinent part:
Glenn's attempt to file a grievance against the union this
afternoon baffles me. 	Aren't grievance [sic] filed against the
district for breaking our contract, not against the assn. by its
members?
I didn't want to laugh at him, nor suggest that he meant to file a
complaint that he hadn't been properly represented, but the dude
is such an aggressive jerk (tossing out that he'd already consulted
his lawyer), that·it's difficult to know what to do for best.
61	
Thank you, Eric, [ 	for delivering the baliot box today. Thank
you, Matt, for collecting it for your morning session. You were
great hanging around to witness the craziness. Evidently, Glenn
was uncomfortable unloading in front
of
you, huh? When I
called Mark to see how this is supposed to work, he [Goldin] kept
talking in my other ear, and I finally just let him speak directly to
Mark.
OMG, can you imagine such a personality in a powerful
leadership position?
Fun, fun, fun.
6 It is assumed "Eric" refers to Eric Farnsworth. See, post, fn. 10.
4

By
the way, Brad Bowen came
by
to vote.
He's
fairly new to
my
dept. and questioned whether Andree should
be
allowed to run for
DC [department chair] since
he's
probe 2. I told him that as far
as I knew, our practice had been at this site, not to do that. Am I
giving incorrect information, Eric?
Ifl
need to eat crow, that's
fine.
I did not give either Brad
or
Glenn a copy
of
our procedures, yet
Glenn had one and evidently showed it to Tracy. Do we know
where he got it? The guy seems to completely misunderstand the
role
of
a faculty association.
On March 29, 2014, Goodman, who is not a member
of
the Election Committee, sent
the following e-mail message, a copy
of
which is attached to the District's first amended
charge:7
Andree can only run as a DC not as Co-chair.
Glen is not eligible.
He has the right to appeal to the Executive and to CTA.
Matt Markstone, do you have his personal email?
Can I have it.
Thanks,
Mark
At the beginning
of
April 2014, elections were held for the open department chair seats
at all four comprehensive high schools, with the exception
of
the Santa Maria special education
department chair. The Association's Election Committee postponed the election while it
reviewed Goldin's eligibility. On April 13, 2014, department chair election results were
announced for all but the Santa Maria special education department chair seat.
By letter dated April 15, 2014, the Association's Election Committee notified Goldin
of
its unanimous determination that he was ineligible to serve as department chair for
Santa Maria's special education department. The letter states:
7 The recipient(s) are unknown.
5

Dear Glenn Goldin,
The Faculty Association Election Committee met on April 15 th to
determine whether you are eligible to run for department chair at
Santa Maria High School. The committee decided unanimously
that you are ineligible. Your job description clearly states that
you are a district rather than a site employee. According to the
job description, you support students from all three
comprehensive high schools, which technically makes you an
itinerant teacher even though you work from a single site.
Thank you for your patience while we reached our decision.
If
you need clarification, please email Mary Blackler [e-mail
address omitted] to set up a meeting with the Election
Committee.
Sincerely,
Faculty Association Election Committee
Mary Blackler
Sue Savins
Teri Magni
Scott Davis
Matt Markstone
Rebecca Wingerden
Although Goldin was found ineligible to serve as department chair, his eligibility to
vote
in
elections for department chair at Santa Maria was not at issue. The Election Committe
continued to postpone the election for special education department chair at Santa Maria to
allow Goldin the opportunity to appeal the Election Committee's determination. During that
time, despite Goldin' s repeated requests, the Association refused to provide Goldin with the
bylaws or procedures that govern such eligibility determinations.8
e
8 Attached to the District's first amended charge is a copy
of
a single e-mail message
from Goldin to Mary Bladder, a member of the Election Committee (see Election Committee
.letter
of
April 15, 2014, quoted above), which states: "Please provide me with a copy of the
Bylaws the FA Election committee referenced to make its determination that I am ineligible to
run for department chair at Santa Maria High School."
6

By
letter dated April 23, 2014, the District notified the Election Committee that it
disagreed with the Election Committee's determination
of
Goldin' s eligibility, and disputed the
Election Committee's authority to determine whether an employee is a District or site
employee. The District informed the Election Committee that it would neither recognize nor
pay a stipend to anyone selected as Santa Maria's special education department chair in an
election in which Goldin's name did not appear on the ballot. The District threatened to file an
unfair practice charge against the Association
if
it refused to place Goldin's name on the ballot.
On or about early May 2014, Goldin appealed the Election Committee's eligibility
determination to President Goodman pursuant to the Association's Grievance Processing
(Internal) Standing Rules. Goodman deferred the decision to the next level, the Executive
Board. The Executive Board voted 4-0 to uphold the determination
of
the Election Committee.
During this period
of
time, Santa Maria was undergoing a significant change to its
student schedule for the following school year, changing from block scheduling to a seven
period schedule. Santa Maria's special education department felt it needed to have a
department chair to implement the schedule changes. Therefore, by e-mail message from
Domingues on May 20, 2014, Santa Maria's special education department was directed to
''partake in a department-wide vote" to determine who would serve as Santa Maria special
education department chair. He also directed that Goldin and Andree's names be placed on the
ballot as co-chair candidates along with the name
of
Kim Andrews. According to the District,
all three had been nominated for department chair. Domingues directed that the vote take
place on Friday, May 23, 2014. On information and belief, the District alleges that Goldin and
Andree won the election by an overwhelming majority. This election was overseen by then
special education department chair Gary Knuckles. The Association did not sanction this
election.
7

On May 22, 2014, the Association's building/site representatives9 voted 10-0 to uphold
the eligibility decision
of
the Election Committee at the last step
of
the internal union
grievance process. By e-mail message from Election Committee member Matt Markstone on
May 22, 2014, Santa Maria's special education department was invited to vote for department
chair that same day during the lunch break or after school. By e-mail message from Eric
Famsworth 	to Santa Maria department chairs on Friday, May 23, 2014, Santa Maria's
department chairs were informed
of
the election results: "Kim Andrews was the only eligible
nominee and won the election." The District counters that a large majority
of
the special
education department again elected Goldin and Andree as "write in" candidates, but the
Association refused to count those votes.
10
By letters to Goldin and Andree dated May 30, 2014, the District recognized Goldin
and Andree as the validly elected co-chairs
of
Santa Maria's special education department for
the 2014-2015 school year. On June 2, 2014, the Association filed a Level I grievance against
the District alleging that the District violated article 16.2
of
the CBA governing Maintenance
of
Benefits, a copy
of
which the District attached to the charge. The grievance states:
On May 22 and 23, Principal Joe Domingues forced the Special
Education Department at Santa Maria High s·chool to run an
improper election in parallel to the properly conducted Faculty
Association election for Department Chair. This directive, in
addition to illegally interfering with the Faculty Association's role as
conductor
of
elections for these positions, also violates long-standing
practice and established District policy that has stood in place for
decades. Principal Domingues' directive additionally violates the
standing agreement between the District and Faculty Association
regarding qualifications for election to Department Chair.
9 This body is referred to as the Representative Council in the Grievance Processing
(Internal) Standing Rules, a copy of which is attached to the Association's position statement.
10
Neither Famsworth's title nor role in the election is identified in the District's charge
or the Association's position statement. 	·
8

The grievance goes on to state that "Principal Joe Domingues refused to withdraw his directive
to run the improper election or to recognize the properly-elected candidate." The District has
taken the position that the Association's grievance is not grievable and therefore is not subject
to the mediation and arbitration processes.
On July 11, 2014, the same day the District filed the present charge, the Association
filed an unfair practice charge in Case No. LA-CE-5938-E. In that case, the Association
alleges that the District interfered with the election. The requested remedy is an order
requiring the District to recognize the results from the election sanctioned by the Association
and to retract the results from the non-sanctioned election that was held at the direction
of
Domingues.
The District asserts that the Association filed grievances,
11
and the related unfair
practice charge, in retaliation against Goldin for engaging in protected activity, which the
District identifies as running for president
of
the Association and running for department chair.
Specifically, the District asserts that the Association is "attempting to force District to impose
adverse consequences upon Mr. Goldin through the loss
of
department co-chair status and loss
of
a paid stipend." As the District states:
[T]he Association, who lacks authority to directly remove
Mr, Goldin from his position and to stop District from paying
Mr. Goldin the appropriate stipend, is attempting to cause the
District to do its discriminatory and retaliatory bidding for it.
The District alleges that, for purposes
of
establishing retaliation, "animus" is shown in
the above-quoted e-mail message: "I don't want to laugh at him, nor suggest he meant to file a
complaint that he hadn't been properly represented, but the dude is such an aggressive jerk."
In addition, in a declaration attached to the first amended charge, Goldin asserts that "[i]n
11
According to the District, the Association filed a second "informal" grievance on
December 2, 2014.
9

response to
my
exercise
of
protected activities I was told by an [sic] Faculty Association
Election Committee member that I needed to stop because I was going to ' [f word] it up."'
THE DISMISSAL
The Office
of
the General Counsel issued a warning letter on November 13, 2014. The
Office
of
the General Counsel identified the statutory issue as whether the District set forth a
prima facie case under EERA section 3543.6, subdivision (a), which makes it unlawful for an
employee organization to cause or attempt to cause an employer to commit an unfair practice.
The Office
of
the General Counsel concluded that the information provided in the charge did
not demonstrate that the District engaged in an unfair practice or that the Association
affirmatively acted to cause or attempt to cause any unfair practice on the part
of
the Distri~t.
In response to the first amended charge, the Office
of
the General Counsel issued a
second warning letter on January 15, 2015.
12
Responding to the District's contention that there
is no statutory requirement that the District commit an unfair practice in order to state a prima
facie case, the Office
of
the General Counsel stated:
The District misunderstands the aim
of
the analysis provided in
the Warning Letter. A Charging Party is not required to undertake
an unlawful act to state a prima facie case, rather, the Charging
Party must provide facts that demonstrate that the act in question,
if
it were undertaken, would be an unfair practice. (Tustin Unified
School District [(1987)] PERB Decision No. 626.)
12
We recognize the value
of
the Office
of
the General Counsel's efforts to inform the
District
of
the deficiencies
of
the first amended charge in the second warning letter. PERB
Regulation 32620, sub1ivision (d), requires the Board agent to advise the charging party in
writing
of
any deficiencies in the charge in a warning letter. Ordinarily, an amendment to a
charge would not compel issuance of a second warning letter. While the Board agent has the
duty to assist the charging party to state the required information in proper form and answer
procedural questions (PERB Reg. 32620, subds. (b )(1) and (b)(2), emphasis added), it has no
duty beyond the initial warning letter to assist the charging party in perfecting its charge. The
decision whether to issue more than one warning letter in any particular case is at the sole
discretion of the Office of the General Counsel.

As the Office
of
the General Counsel explained:
Without provision
of
facts demonstrating that the District's
withdrawal
of
its own parallel election and/or acquiescence to the
Association Election Committee's determination is undertaken
because
of
Goldin' s exercise
of
rights, the charge fails to state a
prima facie case.
(Underlining in the original.)
After receipt
of
the second warning letter, counsel for the District informed the
assigned Board agent that the District did not intend to amend or withdraw the charge. On
February 13, 2015, the Office
of
the General Counsel dismissed the charge based on the facts
and reasons set forth in the two warning letters.
DISCUSSION
The determinative issue is whether the District has stated a prima facie violation
of
EERA section 3543.6, subdivision (a), which states that it shall be unlawful for an employee
organization to "[ c ]ause or attempt to cause a public school employer to violate
Section 3543.5." EERA section 3543.5 enumerates five employer unfair practices. The unfair
practice at issue in this case is described in subdivision (a), which makes it unlawful for a
public school employer to "[i]mpose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or otherwise to interfere with,
restrain, or coerce employees because
of
their exercise
of
rights guaranteed by this chapter."
(EERA sec. 3543.5, subd. (a), emphasis added.)
13
A violation ofEERA section 3543.6, subdivision (a), may only be established by a
clear showing
of
how and in what manner the employee organization affirmatively acted to
13
EERA section 3543, subdivision (a), sets forth the rights of public school employees
and states that "[p ]ublic school employees shall have the right to form, join, and participate in
the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations."
·
11

cause or attempt to cause the unfair practice. (Tustin Unified School District (1987) PERB
Decision No. 626 (Tustin).) The facts must establish a causal connection between the
employer's unlawful conduct and the employee organization's behavior. (State
of
California
(Department
of
Personnel Administration) (1987) PERB Decision No. 609-S (Dept.
of
Personnel Administration).) The employer must show that it was "the unwitting accomplice"
of
the employee organization and that "[its] own unlawful behavior was not
...
the product
of
a
conscious disregard for the impact (upon employee rights)." (Id. at pp. 7-8, underlining in the
original.) Where the employer is relying on an "attempt" theory, the employer must allege
facts demonstrating that the employee organization "consciously attempted (but failed) to
make the [employer] its unwitting accomplice." (Id. at p. 7, fn. 7,
underlining in the original.)
Although the employer is not required to go so far as to undertake an unlawful act to
state a prima facie case, it must provide facts that demonstrate that the act in question,
if
it had
been undertaken, would have been an unfair practice. (Tustin, supra, PERB Decision
No. 626.) BERA section 3543.6, subdivision (a), refers to all variety
of
employer unfair
practices as enumerated in BERA section 3543.5. As applicable to the allegations
of
this
charge, to demonstrate a discrimination/retaliation violation
of
BERA section 3543.5,
subdivision (a), the District must demonstrate 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).)
The District's theory
of
this case is that the Association has attempted to cause the
District to retaliate against Goldin by filing grievances and a PERB unfair practice charge that
aim to remove Goldin from his current position as Santa Maria special education department
12

chair and strip him
of
his stipend.
14
There are two levels to the analysis, the first looks at the
District's conduct that was induced by the Association's unlawful animus; the second, at the
Association's inducing behavior. At the first level
of
analysis, the District must demonstrate
that
if
it were to remove Goldin from his department chair seat and strip Goldin
of
his stipend,
such conduct would constitute unlawful retaliation under Novato. (Tustin, supra, PERB
Decision No. 626.) At the second level
of
analysis, the District must demonstrate that the
Association,
by
filing grievances and a PERB charge, affirmatively caused or consciously
attempted to cause the District to commit the unlawful retaliatory act. (Service Employees
International Union, Local 221 (Meredith) (2008) PERB Decision No. 1982 (SEIU
(Meredith).) In so doing, the District must show that the Association "consciously attempted
.•
(but failed) to make the [District] its unwitting accomplice." (Dept.
of
Personnel
Administration, supra, PERB Decision No. 609-S, p. 7, fn. 7.)
14
In its appeal, the District states that the Association has continued filing grievances
since the filing
of
the first amended charge, and has written letters and e-mails, to continue to
pressure the District into carrying out the Association's retaliatory objective. These are new
allegations that were not presented to the Office
of
the General Counsel in the charge
processing and investigation stage
of
this proceeding. A charging party may not present on
appeal new charge allegations or supporting evidence unless good cause is shown. (PERB
Reg. 32635, subd. (b).) Whether the grievances, letters and e-mails referred to in District's
appeal occurred before or after the dismissal
of
the charge, which occurred on February 13,
2015, two months after the filing
of
the first amended charge, is not known. The absence
of
dates notwithstanding, the District refers to these new allegations in its appeal without
reference to the above-cited regulation or argument as to why they should be considered on
appeal without a showing
of
good cause. Moreover, an allegation that the Association
transmitted grievances, letters and e-mails in an effort to pressure the District to commit an
unfair practice lacks specificity and would not meet PERB's pleading standard even
if
the
Board were to find good cause to consider it. (United Teachers-Los Angeles (Ragsdale) (1992)
PERB Decision No. 944 [PERB's pleading standard, as a general matter, requires alleging
"who, what, when, where and how"]; see also National Union
of
Healthcare Workers (2012)
PERB Decision No. 2249a-M, p. 6,
:fu.
5 [formulaic application of "Ragsdale" standard
rejected in favor of an analysis focusing on the prima facie elements of the alleged unfair
practice and the sufficiency of the charging party's allegations in relation to each of those
elements].)
13

I.
	Did the District establish the prima facie elements
of
a retaliatory act induced
by
the
Association's unlawful animus?
With regard to the first level
of
analysis, contrary to the District's assertions, the Office
of
the General Counsel did not misapply Novato. Three elements
of
the Novato test are not at
issue: protected activity, knowledge and adverse action. The deficiency fatal to the District's
charge involves a fourth element, i.e., nexus or unlawful motivation on the part
of
the
Association. In support
of
the nexus element, the District proffers a statement in an e-mail
message from a member
of
the Election Committee, referring to Goldin as an "aggressive
jerk." That statement may show animus or hostility toward Goldin, but not unlawfiil animus
directed towards Goldin because ofhis protected activities
of
criticizing the Association's
positions on certain workplace issues, advocating for his position on those issues with
bargaining unit members and running for office. (See, e.g., Jurupa Unified School District
(Gillotte) (2015) PERB Decision No. 2420 (Jurupa (Gillotte)), pp. 24-25, fn. 25 ["I'm taking a
hit out on [charging party]" (proposed dee. at p. 6) does not demonstrate nexus; mere dislike
of
charging party without evidence it is because
of
the exercise
of
protected activity is not
unlawful under BERA].)
Goldin states in his declaration that "[i]n response to my exercise
of
protected activities
I was told by an [sic] Faculty Association Election Committee member that I needed to stop
because I was going to '[fword] it up."' In judging the factual sufficiency
of
charge
allegations, PERB looks to see whether the allegations describe the "who, what, when, where
and how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture)
(1994) PERB Decision No. 1071-S (Dept.
of
Food and Agriculture), citing United Teachers-
Los Angeles (Ragsdale), supra, PERB Decision No. 944; see also National Union
of
Healthcare Workers, supra, PERB Decision No. 2249a-M, p. 6, fn. 5.) Mere legal conclusions
are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District
14

(1991) PERB Decision No. 873.) Goldin' s statement lacks sufficient factual detail and
context, and is insufficient to establish the required nexus between Goldin's protected
activities and the would-be adverse action.
Unlawful motive can
be
established by circumstantial evidence and inferred from the
record as a whole. (Novato, supra, PERB Decision No. 210, p. 6; Carlsbad Unified School
District (1979) PERB Decision No. 89; Republic Aviation Corp.
v.
NLRB (1945) 324 U.S. 793;
Radio Officers' Union
of
Commercial Telegraphers Union
v.
NLRB (1954) 347 U.S. 17, 40-43.)
The District, however, has failed to satisfy its burden. 	The factual allegations as a whole do
not support an inference that the Association, through the District, sought to retaliate against
Goldin because
of
his exercise
of
protected rights under BERA.
16
15
The
District contends that the Office
of
the General Counsel misapplied Novato
by
requiring "the District to complete adverse action before a prima facie case is met." (District's
appeal, p. 13, italics in the original.) The District goes on to argue that "[t]o meet the forth
[sic] Novato prong here, it must only
be
pied sufficient facts that 'the Association "attempted
15
When construing California public sector labor relations statutes, California courts and
PERB rely on National Labor Relations Board (NLRB) decisions and judicial decisions
construing similar language in the National Labor Relations Act (NLRA). (San Mateo City
School Dist.
v.
Public Employment Relations Bd. (1983) 33 Cal.3d 850; Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608; the NLRA is codified at 29 U.S.C. section 151 et seq.)
16
Types
of
circumstantial evidence probative
of
unlawful motive, referred to as "nexus"
factors, include: the timing
of
the adverse action (North Sacramento School District (1982)
PERB Decision No. 264 (North Sacramento)); disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); departure from
established procedures and standards when dealing with the employee (Santa Clara Unified
School District (1979) PERB Decision No. 104); inconsistent or contradictory justification for
the actions (State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision
No. 328-S); cursory investigation (City
of
Torrance (2008) PERB Decision No. 1971-M);
offering
of
exaggerated, vague or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786; anti-union animus (Jurupa Community Services District (2007)
PERB Decision No. 1920-M); or any other facts that might demonstrate unlawful motive
(North Sacramento).
15

to cause" the employer to take action because
of
the employee's exercise
of
protected
of
protected rights."' (Ibid., italics in the original.)
The Office
of
the General Counsel did not misapply Novato, let alone in the way the
District suggests. In the second warning letter, the Office
of
the General Counsel explained, in
clear terms, that the District "is not required to undertake an unlawful act to state a prima facie
case, rather, the [District] must provide facts that demonstrate that the act in question,
if
it were
undertaken, would
be
an unfair practice." Contrary to the District's assertion, the Office
of
the
General Counsel did not "write[] the phrase 'attempted
to
cause' out
of
section 3543.6(a)."
(District exceptions, p. 13, italics in the original.)
IL 	Did the District establish the prima facie elements
of
an "attempt"
by
the
Association to cause the District to commit an unfair practice?
A. Does the filing
of
grievances and an unfair practice charge
by
the
Association constitute an "attempt"?
The District conflates the two level
of
analyses required in a charge alleging a violation
of
EERA section 3543.6, subdivision (a). We will assume, for argument's sake only, that the
District has set forth a prima facie retaliation case at the first level
of
analysis
by
demonstrating
that
if
the Association were successful at getting Goldin removed from his department chair
seat and stripped
of
his stipend it would be "because
of'
Goldin's exercise
of
protected
activities (the nexus element
of
the Novato test). That would only get the District mid-way
there. The District must also demonstrate how and in what manner the Association
affirmatively and consciously attempted to make the District its unwitting accomplice in
carrying out the retaliatory act. (Tustin, supra, PERB Decision No. 626; Dept.
of
Personnel
Administration, supra, PERB Decision No. 609-S, p. 7, fn. 7.)
The District alleges that the Association filed grievances and a PERB charge to induce
the District to remove Goldin from his department chair seat and strip him of his stipend
16

because the Association has no authority to effect those changes on its own. In other words,
according to the District, the Association is attempting to use the District as its tool to do the
Association's bidding or dirty work. The District analogizes its theory
of
the charge to the
"cat's
paw" 	theory
of
liability.
The filing
of
grievances, however, does not qualify as the type
of
affirmative action
necessary to meet the District's burden. (SEJU (Meredith), supra, PERB Decision No. 1982.)
As the Board held in
SEIU
(Meredith):
[E]ven
if
Meredith's rejection on probation was retaliatory, the
charge fails to establish that SEIU acted affirmatively to cause the
District to retaliate against him. 	The charge alleged that SEIU filed
grievances against Meredith with the aim
of
having him removed as
head custodian. Even assuming that SEIU had such a motive, the
charge fails to establish that by filing these grievances SEIU caused
18	
17
17
As the United States Supreme Court explained:
The term "cat's paw" derives from a fable conceived
by
Aesop, put
into verse by La Fontaine in 1679, and injected into United States
employment discrimination law by Posner in 1990. See Shager
v.
Upjohn Co., 913 F.2d 398, 405 (CA7). In the fable, a monkey
[Bertrand] induces a cat [Raton]
by
flattery to extract roasting
chestnuts from the fire. After the cat has done so, burning its paws
in the process, the monkey makes
off
with the chestnuts and leaves
the cat with nothing. A coda to the fable (relevant only marginally,
if
at all, to employment law) observes that the cat is similar to
princes who, flattered
by
the king, perform services on the king's
behalf and receive no reward.
(Staub
v.
Proctor Hosp. (2011) 562 U.S. 411, 416.)
18 In the employment law context, cat's paw refers to an innocent or unwitting personor
entity being used as a conduit to accomplish another's purpose. (See Shager
v.
Upjohn Co.
(?1h
Cir. 1990) 913 F.2d 398, 405.) PERB employs a cat's paw theory
of
liability, referred to as
subordinate bias liability. The unlawful motive
of
a subordinate supervisorial employee may be
imputed to the decision-maker responsible for authorizing the adverse action against the charging
party where: the lower-level official's recommendation, evaluation or report was motivated by
the employee's protected conduct; the lower-level official intended for his or her conduct to
result in an adverse action; and the lower-level manager's conduct was a motivating factor or
proximate causes
of
the decision to take adverse action against the employee. (Berkeley Unified
School District (Crowell) (2015) PERB Decision No. 2411.)
17

or attempted to cause the District to retaliate against Meredith
because
of
his protected activity. Thus, even
if
the grievances
played a part in the District's decision to reject Meredith on
probation, the charge does not establish that those grievances
induced, or attempted to induce, the District to violate EERA.
(Id. at p. 11.)19
The District contends that the grievances filed by the Association are not subject to the
parties' grievance procedures including mediation and arbitration. But at the same time, the
District argues that the Association is attempting to cause it to commit an unfair practice
by
the
filing
of
those grievances. These two positions are irreconcilable. One must have the ability
"to cause"
in
order to be in a position "to cause." Based on the District's own charge
allegations, the Association has no ability "to cause" the District to commit an unfair practice
given that the Association's grievances are ungrievable. 	More importantly,
by
submitting the
dispute over Goldin's eligibility to serve as Santa Maria's special education department chair
to the grievance procedure, the Association has taken the issue, including the grievability
of
20
19
In
SEIU
(Meredith), supra, PERB Decision No. 1982, the unfair practice charge
under EERA section 3543.6, subdivision (a), was brought
by
a public school employee, not a
public school employer. An earlier Board decision, SEIU Local 1000, CSEA (Burnett) (2007)
PERB Decision No. 1914-S, calls into question the standing
of
an individual employee to bring
a charge under a similar provision in Ralph C. Dills Act (Dills Act) section 3519.5,
subdivision (a), which makes is unlawful for an employee organization to cause or attempt to
cause the state to violate section 3519, enumerating types
of
unfair practices by the state. The
charge was dismissed in part because "individual employees lack standing to allege that the
employee organization violated the rights
of
an employer." (SEIU Local 1000, CSEA
(Burnett), warning letter at p. 5.) The portion
of
SEIU (Meredith) relied on herein does not
turn on standing, and therefore is appropriately cited as precedential authority on the issue
of
whether the District has met its prima facie burden. Because the present charge was brought
by a public school employer, not a public school employee, standing is not at issue and we
need not resolve the conflict in PERB precedent on whether individual employees have
standing to bring an unfair practice under EERA section 3543.6, subdivision (a), or any
of
the
equivalent provisions under the other public sector labor relations statutory schemes
administered by PERB. (The Dills Act is codified at sec. 3512, et seq.)
20 "The question
of
whether a complaint is subject to the grievance procedure may itself
be processed through the grievance procedure and arbitration." (Elkouri & Elkouri, How
Arbitration Works (ih ed.) ch. 5.4, 5-12.)
18

the dispute, out of its own hands and demonstrated that it is willing to place it in the hands of a
neutral arbiter (assuming the parties reach that level of the grievance procedure). That
behavior does not demonstrate that the Association is affirmatively and consciously attempting
to make the District its tool or unwitting accomplice in its alleged desire to seek unlawful
retribution against Goldin. As a matter of public policy, the Board is unwilling to find that the
act of submitting a dispute to the parties' negotiated grievance procedure invokes a cat's paw
(subordinate bias) analysis, let alone constitutes grounds on which to bring an unfair practice
charge under EERA section 3543.6, subdivision (a). (See Jurupa (Gillotte), supra, PERB
Decision No. 2420, proposed dee. at p. 40 [using a negotiated dispute resolution process or
complaint procedure under the collective bargaining agreement is protected].) This same
analysis applies to the act of filing an unfair practice charge with PERB. ·
B. Was the District the Association's mere tool or unwitting accomplice?
A more fundamental problem with the District's argument is thatit fails to recognize its
own responsibility for creating the problem it now faces. Referring back to the cat's paw
fable, Raton the cat had no role in the story prior to falling for Bertrand the monkey's trickery.
Unlike Raton the cat, the District is no mere tool or unwitting actor. The District's charge, as
amended, does not dispute that the Association is the "conductor"of department chair
elections through its Election Committee. The District's charge, as amended, does not dispute
that the Association postponed the special education department chair election at Santa Maria
to allow Goldin to appeal the Election Committee's eligibility decision through to the highest
level of the Association's internal grievance procedures. The District's charge, as amended,
does not dispute that the Election Committee conducted department chair elections for open
seats at all the District's comprehensive high schools.
19

Despite all
of
the above, the District chose to take matters into its own hands, thereby
setting in motion the present controversy. The District could have refrained from inserting
itself into the matter. The District could have deferred to the Association on election matters,
as it presumably did with regard to all other department chair elections since 2002. The
District chose to do otherwise. It commanded the election for Santa Maria's special education
department chair seat, ordered that Goldin's name
be
placed on the ballot and recognized
Goldin as the victor
in
an election that was not sanctioned
by
the Association. While we
recognize that the District alleges that the Association does not have the authority to determine
who is a District employee and who is a site employee and disputes that Goldin is a District
employee, it is not PERB's role in this case to take sides on the department chair eligibility
issue or determine the parties' respective roles
in
department chair elections. Those matters
are more likely to be decided in the Association's related charge against the District for
allegedly interfering with the election. The only issue raised in this case is whether the District
has satisfied its burden to demonstrate that the Association attempted to cause it to retaliate
against Goldin under EERA section 3543.6, subdivision (a), and for all the reasons described
herein, we conclude that the District has not met its burden.
Although the District finds support for its charge in cases decided under the NLRA
involving application
of
an analogous NLRA provision, we find these cases to be inapposite.
21
In United Brotherhood
of
Carpenters & Joiners, Local Union No. 1016 (Bertram Cons
tr.
Co.)
. (1984) 272 NLRB 539, employers operating under a master agreement were required to seek
21
The language ofEERA section 3543.6, subdivision (a), derives from NLRA
section 158, subdivision (b )(2), which makes it an unfair labor practice for a labor organization
to "cause or attempt to cause an employer to discriminate against an employee in violation
of
subsection (a)(3) [of this section]." Section (a)(3) prohibits discrimination based on the
exercise
of
employee rights that has the tendency to encourage or discourage union
membership. As noted ante at fn. 15, when interpreting California's labor relations statutes,
PERB may take guidance, as appropriate, from administrative and judicial authorities
construing analogous provisions of federal labor law.
20

qualified employees for their construction projects from the local union. A known union
dissident expressed interest in working on a particular project. When the employer
undertaking the project inquired about this employee for the project, the union's
business
representative responded that
"He's
bad news, and
don't
	with him. ...
He's
trying to stir
up trouble." Based
on
this conversation, the employee was not hired. In Kroger
Co.
(1993)
312 NLRB 7, the union was exasperated at the obduracy
of
an employee in pursuing her
grievance and threatened her with the loss
of
regular relief work, which paid at a substantially
higher wage rate compared to her normal rate as a clerk/cashier. The union was successful in
pressuring the employer to remove the employee from regular relief work. The NLRB found
that the union took this action because
it
harbored ill will toward the employee for vigorously
pursuing
her
grievance. In NLRB
v.
St.
Joe Paper Co. (2
nd
Cir. 1963) 319 F.2d 819, the NLRB
found that the union caused two successive employers to discharge an employee who had
previously been expelled from the union. The union pressured the first employer to discharge
the employee because
he
"was not a union man," and told the second employer that he was a
"trouble maker,"
"a
bad actor," and
"a
problem" who "had to be watched" and who "was always
running to the Labor Board." The NLRB found that these communications induced the
employers to take retaliatory action against the employee at the union's behest or suggestion.
Similar to the above-cited cases, Groves-Granite (1977) 229 NLRB. 56 involved the discharge
of
two employees, induced
by
the union in response to protected activities.22
22
The District also cites to NLRB
v.
Teamsters "General" Local Union No. 200
(ih
Cir. 2013) 723 F.3d 778, which involved the issue whether a labor organization, which
operated an exclusive hiring hall, violated its duty
of
fair representation and engaged in
discrimination by failing to refer a union dissident for work. This case did not involve the
issue whether the union caused or attempted to cause the employer to discriminate against the
employee based on the employee's exercise
of
protected rights. It is not appropriate, therefore,
to take guidance from this case. Moreover, even
if
considered appropriate guidance, it is just
as inapposite as the other private sector cases cited by the District, for the reasons provided in
the Board's discussion of those authorities.
21

These cases are distinguishable on two primary grounds. First, there was direct or
circumstantial evidence
of
unlawful retaliatory motive in all these cases. In contrast, as
previously discussed, there is no evidentiary support contained in the District's charge that the
Association was motivated
by
anything other than its concern about Goldin' s eligibility to
serve as department chair, or that the Association's eligibility concern was pre-textual, as the
District alleges. That a member
of
the Election Committee referred to Goldin as an aggressive
jerk does not demonstrate unlawful retaliatory design. Second, unlike the employers in the
private sector cases, the District is not an unwitting accomplice or mere tool. As stated above,
the District was the principal actor that set in motion the circumstances that created the present
controversy.
Another NLRB decision relied on by the District is General Motors Corp. (1984)
272 NLRB 705. In that case, the union caused the employer to change an employees' start
time in retaliation for statements made by the employee that were critical
of
a new absentee
program supported by the union. The NLRB found that the union acted on an unlawful motive
and the employer acquiesced and cooperated in the union's retaliatory plan. This case
illustrates the conceptual strain under which the District's theory
of
its charge operates. For
the District to prevail in establishing a prima facie "attempt" case under EERA section 3543.6,
subdivision (a), it would have to show that the Association is seeking to keep Goldin from
occupying a department chair seat in retaliation for engaging in protected activities and the
District has acquiesced and cooperated in the Association's attempt to do that. That is not this
case. It is the District that is pressing the Association to acquiesce and cooperate in the
District's attempt to maintain the results
of
an unsanctioned department chair election.
The common thread running through the private sector authorities is that the employers
played no role in the creation, or stoking, of the controversy between the union and the
22

employee. The employers were only guilty
of
succumbing to the unions' pressure tactics and,
in so doing, carrying out the union's unlawful retaliatory design. In contrast, the District
inserted itself into the controversy
by
taking its own independent action. The District is no
mere tool or unwitting accomplice. Having staked out a position opposed
by
the Association,
the
District cannot now complain that the Association has filed grievances and a PERB charge
in pursuit
of
a resolution
of
this dispute by a neutral arbiter. Accordingly, the Board concludes
that the District has not stated a prima facie case under BERA section 3543.6, subdivision (a).
ORDER
The unfair practice charge in Case No. LA-C0-1624-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Banks and Gregersen joined in this Decision.
. 23

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N, Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
February 13, 2015
Chelsea R. Olson, Attorney
Kronick Moskovitz Tiedemann & Girard
733 Marsh Street, Suite 210
San Luis Obispo, CA 93401
EDMUND
G.
BROWN
JR., Governor
Re: 	Santa Maria Joint Union High School District
v.
Santa Maria Joint Union High School
District Faculty Association
Unfair Practice Charge No. LA-CO-1624-E
DISMISSAL LETTER
Dear Ms. Olson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 11, 2014. The Santa Maria Joint Union High School District
(District or Charging Party) alleges that the Santa Maria Joint Union High School District
Faculty Association (Association or Respondent) violated section 3543.6(a)
of
the Educational
Employment Relations Act (BERA or Act) by causing or attempting to cause the District to
commit an unfair practice.
1
Charging Party was informed in the attached Warning Letter dated November 13, 2014, that
the above-referenced 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 the charge to state a prima facie case or withdrew
it on or before November 24, 2014, the charge would be dismissed. The Board agent granted
the District's two requests for an extension
of
time to amend the charge and the District filed a
timely first amended charge on December 10, 2014.
Charging Party was informed in the attached Second Warning Letter dated January 15, 2015,
that the above-referenced 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 the charge to state a prima facie case
or withdrew it on or before January 26, 2015, the charge would be dismissed.
1 EERA is codified at Government Code section 3540 et seq. PERB's Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. The text of PERB's
Regulations may be found at www.perb.ca.gov.

LA-CO-1624-E
February 13, 2015
Page2
On or about February 11, 2015, the undersigned Board agent discussed the case with legal
counsel for Charging Party, Ms. Olson, and Ms. Olson stated she had received both warning
letters and that the District did not intend to amend or withdraw the charge.
Therefore, the charge is hereby dismissed based on the facts and reasons set forth in the
November 13, 2014 and January 15, 2015 Warning Letters.
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service
of·
this dismissal. (Cal. Code Regs., tit.
8,
§ 32635, subd. (a).) Any document filed with the
Board must contain the case name and number, and the original and five (5) copies
of
all
documents must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit.
8,
§§ 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 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, subqs. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 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
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs., tit. 8, § 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 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

LA-CO-1624-E
February 13, 2015
Page 3
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time,
in
which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party, (Cal. Code Regs., tit. 8, § 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,
WENDI L. ROSS
Deputy General Counsel
By
Mary Weiss
Senior Regional Attorney
_____________
_
Attachment
cc: Brenda Sutton-Wills, Staff Counsel, California Teachers Association

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los
Angeles Regional Office
700
N.
Central Ave., Suite
200
Glendale, CA 91203-3219
Telephone: (818) 551-2809Fax:
(8
I
8)
551-2820
January 15, 2015
Chelsea
R.
Olson, Attorney
Kronick Moskovitz Tiedemann & Girard
733 Marsh Street, Suite 210
San Luis Obispo, CA 93401
EDMUND G. BROWN JR., Governor
Re: 	Santa Maria Joint Union High School District
v.
Santa Maria Joint Union High School
District Faculty Association
Unfair Practice Charge No. LA-CO-1624-E
SECOND WARNING LETTER
Dear Ms. Olson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 11, 2014: The Santa Maria Joint Union High School District
(District or Charging Party) alleges that the Santa Maria Joint Union High School District
Faculty Association (Association or Respondent) violated section 3543.6(a)
of
the Educational
Employment Relations Act (EERA or Act) by causing or attempting to cause the District to
commit an unfair practice.
1
Charging Party was informed in the attached Warning Letter dated November 13, 2014, that
the above-referenced charge did not state a prima facie case. Charging Party was advised that,
ifthere 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 the charge to state a prima facie case or withdrew
it on or before November 24, 2014, the charge would be dismissed. The Board agent granted
the District's two requests for an extension
of
time to amend the charge and the District filed a
timely first amended charge on December 10, 2014.
The Warning Letter explained that a violation
of
Government Code section 3543.6, subdivision
(a) may only be established by a clear showing
of
how and in what manner the employee
organization affirmatively acted to cause or attempt to cause a violation
of
section 3543.5.
(Tustin Unified School District (1987) PERB Decision No. 626.) To summarize, section
3543.5 makes it unlawful for a public school employer to impose reprisals, discriminate,
interfere or deny employee rights under EERA, fail to bargain in good faith, refuse to
participate in impasse procedures in good faith, or to dominate or interfere in the
administration
of
any employee organization.
1 EERA is codified at Government Code section 3540 et seq. PERB's Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. The text of the BERA
and PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1624-E
January 15, 2015
Page 2
In its First Amended Charge, the District contends the Association is attempting to remove
teacher Glenn Goldin (Goldin) as department chair for discriminatory reasons but lacks
authority to directly remove Goldin from the chair position, and therefore is trying to force the
District to impose the discriminatory act upon Goldin. The District states there
is
no statutory
requirement that the District must wait until it is compelled to commit an unfair practice in
order to make a prima facie case.
The District misunderstands the aim
of
the analysis provided
in
the Warning Letter. A
Charging Party is not required to undertake an unlawful act to state a prima facie case, rather,
the Charging Party must provide facts that demonstrate that the act in question,
if
it were
undertaken, would be an unfair practice. (Tustin Unified School District, supra, PERB
Decision No. 626.) The amended charge provides no facts demonstrating that the District
would be committing an unfair practice
if
it agreed to the Association Election Committee's
April 15, 2014 determination that Goldin is ineligible to be a department chair at Santa Maria
High School. The District simply concludes in its amended charge that the Association has
taken concrete action to force the District to inflict adverse action against Goldin, for example,
loss
of
chair compensation and status. The District's amended charge, however, fails to
demonstrate a violation
of
section 3543.5(a) which requires a showing 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.) Without provision
of
facts demonstrating that the District's withdrawal
of
its own parallel election and/or acquiescence to the Association Election Committee's
determination is undertaken because
of
Goldin's exercise
of
rights, the charge fails to state a
prima facie case.
For these reasons the charges, as presently written, do not state a prima facie case.
	If
there are
any factual inaccuracies in this letter or additional facts tnat would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled Second Amended
Charge, contain all the facts and allegations Charging Party wishes 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 harid comer
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 •

LA-CO-1624-E
January 15, 2015
Page 3
January 26, 2015, PERB will dismiss your charge. If you have any questions, please call me at
the above telephone number.
Sincerely,
WENDI L. ROSS
Acting General Counsel
By
Mary Weiss
Senior Regional Attorney
_____________ _
Attachment
j

STATE OF·CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
November 13, 2014
Chelsea R. Olson, Attorney
Kronick Moskovitz Tiedemann & Girard
733 Marsh Street, Suite 210
San Luis Obispo, CA 93401
EDl\HJND G. BROWN JR., Governor
Re: 	Santa Maria Joint Union High School District
v.
Santa Maria
Joint
Union High School
District Faculty Association
Unfair Practice Charge No. LA-CO-1624-E
WARNING LETTER
Dear Ms. Olson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 11, 2014. The Santa Maria Joint Union High School District
(District or Charging Party) alleges that the Santa Maria Joint Union High School District
Faculty Association (Association or Respondent) violated section 3543.6(a)
of
the Educational
Employment Relations Act (EERA or Act) by causing or attempting to cause the District to
commit an unfair practice.
1
FACTS AS ALLEGED
The District and the Association are parties to a collective bargaining agreement (CBA)
covering the certificated employee bargaining unit.
Mark Goodman (Goodman) is the Association Chapter President.
Glenn Goldin (Goldin) is employed by the District at Santa Maria High School (SMHS) in its
special education department. His classroom is based at SMHS, he is supervised and evaluated
by the SMHS principal, he
is
paid through funding allocated for SMHS, he is part
of
the
SMHS special education department, attends department meetings and is identified on both
District and school documents as being a member
of
the SMHS special education department.
All District special education programs are open to all students in the District. Like many
other special education teachers, Goldin teaches special education students from all
of
the
District's four comprehensive high schools.
1 BERA is codified at Government Code section 3540 et seq. PERB's Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. The text of the EERA
and PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1624-E
November 13, 2014
Page2
Goldin has been an outspoken critic
of
current Association leadership. During the 2013-2014
school year, Gqldin ran against Goodman for Association Chapter President. Goldin lost the
election and Goodman remains Association Chapter President.
On or about April 2014, District departments solicited nominations and held elections for
department chairs at all four comprehensive school sites throughout District. Pursuant to CBA,
Article 3.5.2, department chairs are to be elected by their respective constituencies at each
school site and must be paid a 9-10.5% stipend by the District for performing department chair
duties.
Goldin was nominated to serve as co-chair
of
the SMHS special education department with
another SMHS special education teacher, Matt Andrade (Andrade). In a preliminary election
on or about May 2014, Goldin and Andrade were unanimously selected by their constituency
(the special education teachers at SMHS).
On or about April 15, 2014, the Association Election Committee determined that Goldin was
ineligible to be a department chair at SMHS on the basis that he is a District, rather than a site
employee, because he supports students from all four comprehensive high schools.
In the special education department at Righetti High School, where Goodman serves as
department chair, the special education teacher serving in the equivalent position as Goldin is
allowed to vote for department chair.
The Association does not dispute Goldin's ability to vote for the·department chair in the
special education department at SMHS but "illogically and in retaliation, disputes his
qualification to be the department chair."
On or about April 23, 2014, the District notified Association that Goldin was a SMHS
employee and the Association did not have authority to determine which District employees
are "District employees"and which employees are "site employees." There is no distinction
included in the CBA and it is the past practice to allow all department members at a school site
to run for department chair in his/her department
if
he/she so desires. The District further
stated that
if
the Association continued to refuse to place Goldin on the ballot, it retained the
right to file an unfair practice against the Association because it was causing the District to
violate the Educational Employment Relations Act section 3543.5 by causing it to discriminate
or otherwise interfere with, restrain, or coerce Goldin because
of
his exercise
of
protected
rights.
Another election was held for the SMHS special .education department chair. The Association
refused to place Goldin and Andrade on the ballot. Association members who are also
members
of
the SMHS special education department nevertheless "wrote in" votes for Goldin
and Andrade and again selected them as co-chairs
of
the department. However, the
Association refused to "count" those votes and identified another employee as department
chair
of
SMHS. That employee, also an Association member, believes that Goldin and
Andrade were appropriately elected as department chairs.

LA-CO-1624-E
November 13, 2014
Page 3
On or about May 30, 2014, the District determined that it must recognize the validly elected
employees, Goldin and Andrade,
as·
co~chairs
of
the SMHS special education department.
It
notified Goldin and Andrade
of
that decision and carbon copied appropriate Association
representatives
of
that decision.
On or about June 2, 2014, the Association filed a grievance against the District maintaining the
District has "illegally" interfered with the Association's role as "conductor
of
elections" and
that it retains authority to determine qualifications for department chair.
The Association has engaged in this course
of
action to retaliate against Goldin for engaging in
"protected activity." Specifically, Goldin has attempted to participate in Association activities
including running for Association president and running for department chair. These are
employee rights protected by EERA and the Association has retaliated against Goldin for
seeking election to Association office and to deter other members
of
the Association
bargaining unit from seeking office. The Association
is
also attempting to force the District to
impose adverse consequences upon Goldin through the loss
of
department co-chair status and
loss
of
a paid stipend.
The Association is also attempting to use the grievance article to force the District to impose
these adverse consequences on Goldin.
The District asserts that "[b ]y the acts set forth above, among other acts, the Association has
violated Government Code section 3543.6(a) by causing or attempting to cause the District to
'[i]mpose
or
threaten to impose reprisals on employees, to discriminate or threaten to
discriminate against employees, or otherwise to interfere with, restrain, or coerce employees
because
of
their exercise
of
rights guaranteed by this chapter' in violation
of
Government Code
section 3543.5(a)."
DISCUSSION
Under EERA, it is unlawful for
an
employee organization to cause or attempt to cause an
employer to commit an unfair practice. (Gov. Code, § 3543.6, subd. (a).) A violation
of
this
provision may only be established by a clear showing
of
how and
in
what manner the
employee organization affirmatively acted to cause or attempt to cause the unfair practice.
(Tustin Unified School District (1987)
PERB
Decision No. 626.) In addition, the facts must
establish a causal connection between the employer's unlawful conduct and the employee
organization's behavior. (State
of
California (Department
of
Personnel Administration) (1987)
PERB Decision No. 609-S.)
The District alleges that the Association caused or attempted to cause the District to violate the
Educational Employment Relations Act section 3543.5 by causing it to discriminate or
otherwise interfere with, restrain, or coerce Goldin because
of
his exercise
of
protected rights.
However, the information provided in the charge does not demonstrate that the District
engaged in an unfair practice or otherwise interfered with or retaliated against Goldin. It is
therefore not possible to establish, from the facts presented, that the Association affirmatively

LA-CO-1624-E
November 13, 2014
Page4
acted to cause
or
attempt to cause any unfair practice on the part
of
the District. It is also
unclear that the Association acted affirmatively "to encourage or assist" the District in
interfering, discriminating or retaliating against Goldin. (California Nurses Association
(O'Malley) (2004) PERB Decision No. 1651-H.) Also, to the extent the District may be
asserting rights on behalf
of
Goldin, it is unclear whether the District has standing to assert
such a claim.
To
the extent that the unfair practice charge alleges the Association's conduct breached the
parties collective bargaining agreement, it is well-established that PERB does not have
jurisdiction to resolve pure contract disputes. (Gov. Code, § 3541.5, subd. (b ); Compton
Community College District (1991) PERB Decision No. 915;)
For these reasons the charge, as presently written, does not state a prima facie case.2
Ifthere
are any factual inaccuracies
in
this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand corner
of
the charge form. The amended charge must be
served on the Respondent's representative and the original proof
of
service must be filed with
PERB.
If
an
amended charge or withdrawal is not filed on or before November 24, 2014,3
PERB will dismiss your charge.
If
you have any questions, please call me at the above
telephone number.
Sincerely,
Mary Weiss
Senior Regional Attorney
MW
2 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
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 or electronic mail. (PERB Regulation 32135.)