Hartnell Community College District (PERB 2452E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ERIC MOBERG,
Charging Party,
v.
HARTNELL COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. SF-CE-2984-E
PERB Decision No. 2452
September 4, 2015
Appearances: Eric Moberg, on his own behalf; Liebert, Cassidy, Whitmore by Eileen O'Hare-
Anderson, Attorney, for Hartnell Community College District.
Before Huguenin, Banks, and Gregersen, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Eric Moberg from the dismissal by the Office
of
the General Counsel
of
his third amended unfair practice charge. The charge, as amended, alleged that the Hartnell
Community College District (Hartnell) discriminated against Moberg in violation
of
the
Educational Employment Relations Act (EERA) by terminating Moberg's employment and/or
refusing to rehire him for his assertion
of
protected rights, and by withholding payment
of
$8,418.47 in wages owed to Moberg under his terminated contract
of
employment. The charge
also alleged that Hartnell interfered with the exercise ofEERA-protected rights when a
Hartnell human resources official told Moberg that she, and not Moberg, would decide who
would represent Moberg in an investigative meeting.
1
2
1 EERA is codified at Government Code section 3540 et seq.
The charge, as amended, also alleged that Hartnell had failed and refused to provide
Moberg with certain infonnation relating to Hartnell's position in the current litigation. The
2

The Board has reviewed the entire case file in light
of
the issues raised
by
Moberg' s
appeal and the relevant law. Based on this review, the Board reverses the dismissal
of
the
charge and directs the Office
of
the General Counsel to issue a complaint in accordance with
the discussion below.
PROCEDURAL HISTORY
On November 5, 2012, Moberg filed the present charge in which he alleged that
Hartnell unlawfully discriminated against him and interfered with protected rights.
On December 6, 2012, Hartnell filed a verified position statement in which it denied the
material facts alleged by Moberg and denied any wrongdoing.
On June 28, 2013, Moberg filed a first amended charge which incorporated the
allegations
of
the initial charge and included additional factual allegations.
On July 26, 2013, Hartnell filed a second position statement.
On July 31, 2013, Moberg filed a second amended charge.
On August 2, 2013, Hartnell advised the Board agent assigned to this case that, because
Moberg's second amended charge added no relevant information or allegations, Hartnell
considered its position statement filed in response to the first amended charge an adequate
response to Moberg's sec?nd amended charge.
On September 22, 2014, the Office
of
the General Counsel issued a warning letter
advising Moberg that his charge, as amended, failed to state a prima facie case and that, unless
Office of the General Counsel advised Moberg in its September 22, 2014 warning letter that he
lacked standing to bring this allegation. Because Moberg's appeal does not challenge the Office
of the General Counsel's determination, we regard the issue as abandoned and warranting no
further consideration by the Board. (PERB Reg. 32360, subd. (c); Service Employees
International Union Local 1021 (Harris) (2012) PERB Decision No. 2275, pp. 2-3. PERB regs.
are codified at Cal. Code Regs., tit. 8, § 31001, et seq.)
2

it was withdrawn or amended to include additional facts before October
6,
2014, the charge
would be dismissed.
After being granted an extension
of
time, on October 17, 2014, Moberg filed a third
amended charge which incorporated his previous allegations and included additional allegations
concerning communications and collaboration between Hartnell and Moberg's other former
employers. The third amended charge also denied both Hartnell's allegations that Moberg's
academic degrees and professional credentials were illegitimate, and that Moberg's employment
was terminated for falsifying information on his employment application about those degrees and
credentials.
On October 21, 2014, the Board agent informed Hartnell that Moberg had filed a third
amended charge and advised Hartnell that it had until November 6, 2014 to file an amended
position statement in response thereto. On or about October 29, 2014, Hartnell requested an
extension
of
time in which to file an amended position statement. Although the file gives no
indication whether this request was granted, on November 21, 2014, Hartnell filed a verified
amended position statement in response to Moberg' s third amended charge. 3
On December 17, 2014, the Office
of
the General Counsel advised Moberg that,
because the third amended charge had not cured the defidencies identified in the previous
warning letter, the charge had been dismissed for failure to state a prima facie case.
On December 23, 2014, Moberg requested an extension oftime in which to appeal the
dismissal. Because Moberg's request included an unsigned proof
of
service, on December 24,
Because Hartnell's November 21, 2014 position statement incorporates by reference
the contents
of
its July 26, 2013 position statement and otherwise adds no new factual material,
we rely on the July 26, 2013 filing and we consider it unnecessary to determine whether, in the
absence of correspondence specifically granting Hartnell's request for an extension of time, the
November 21, 2014 position statement was timely filed.
3
3

2014, PERB's Appeals Assistant denied Moberg's request for an extension
of
time and advised
Moberg that the due date for filing his appeal remained January 12, 2015.
On December 31, 2014, Moberg filed the present appeal.
On January 14, 2015, Hartnell filed a statement in opposition to Moberg's appeal.
On February 10, 2015, Moberg filed with the Board itself a request to consider certain
newly-available evidence as part
of
his appeal. On March 2, 2015, Hartnell filed its opposition
this request.
On March 28, 2015, Moberg filed a second request with the Board itself to consider
other newly-available evidence as part
of
this appeal. On March 31, 2015, Hartnell also
opposed this request.
On July 20, 2015, Moberg filed third request with the Board to consider other newly-
available evidence as part
of
this appeal. On August 6, 2015, Hartnell filed its opposition to
this request.
FACTUAL ALLEGATIONS INCLUDED IN THE CHARGE4
Moberg alleges that, from Spring 2010 until September 24, 2012, he worked for
Hartnell as an adjunct faculty member, a position exclusively represented by the Hartnell
The Office
of
the General Counsel declined to consider the factual statements
included in Hartnell's second and third position statements because they were unverified.
PERB Regulation 32620, subdivision (c), provides the respondent in an unfair practice case with
the right to be apprised
of
the allegations, and to "state its position on the charge during the
course
of
the inquiries." The respondent's position statement,
if
any, "must be in writing, and
signed under penalty
of
perjury by the party or its agent with the declaration that the response is
true and complete to the best
of
the respondent's knowledge and belief." Our review
of
the file
indicates that, Hartnell's second position statement, filed on July 26, 2013, included proper
verification by Eileen O'Hare-Anderson, one ofHartnell's designated attorneys ofrecord in this
matter. Our review further indicates that, while Hartnell's third position statement, filed on
August 2, 2013, was unverified, it included no statements of a "factual" nature. Because the
purpose of PERB Regulation 32620 is to verify factual allegations, and was not intended to
preclude consideration of purely legal argument included in an unverified position statement,
we consider Hartnell's third position statement.
4
4

College Faculty Association/CTA/NEA (Association). Moberg does not allege that he is an
officer, representative or authorized agent
of
the Association and the Association is not a party
to the present charge.
Adjunct faculty members employed by Hartnell are non-tenure track instructors assigned
to teach 67 percent or less
of
a full-time assignment during an academic year. They are generally
employed on a semester-to-semester basis, and are classified as "temporary" employees,
pursuant to Education Code section 87482.5, subdivision (a). 	The governing board may
terminate the employment
of
a temporary employee at its discretion at the end
of
a day or week,
as it deems appropriate. The decision to terminate employment is not subject to judicial review
except as to the time
of
termination. (Ed. Code,§ 87665.)
5
Although he concedes that he was hired as a "temporary'' employee subject to at-will
termination, Moberg alleges that he became a "contract" employee,
by
operation
of
law,
because Hartnell assigned him to work more than 67 percent
of
a full-time teaching load.
According to Moberg, he became a contract or probationary employee within the meaning
of
the Education Code and applicable decisional law, because he was assigned to a 91.67 percent
teaching load in the Spring 2011 semester. Moberg's charge includes documents from the
California State Teachers Retirement Service indicating that he earned .7855 service credit
from Hartnell for the academic year 2011-2012, where 1.0 equals full-time.
Hartnell's initial, December 6, 2012 position statement "adamantly and specifically"
denied Moberg' s allegation that he was a probationary, rather than temporary, employee and
"Notwithstanding any other law, a person who is employed to teach adult or community
college classes for not more than 67 percent of the hours per week considered a full-time
assignment for regular employees having comparable duties shall be classified as a temporary
employee, and shall not become a contract employee under Section 87604. If the provisions of
this section are in conflict with the terms of a collective bargaining agreement in effect on or
before January 1, 2009, the provisions of this section shall govern the employees subject to that
agreement upon the expiration of the agreement." (Ed. Code,§ 87482.5, subd. (a).)
5
5

specifically asserted that he "was never assigned more than 67%
'of
the hours per week
considered a full-time assignment for regular employees having comparable duties"' within the
meaning
of
Education Code section 87482:5, subdivision (a). (Emphasis added.) However,
Hartnell's subsequent position statements
of
July 26, 2013 and November 21, 2014 no longer
include this specific denial. Instead, they assert that Moberg was employed "as an adjunct
faculty member" and, that adjunct faculty members "are untenured, non-tenure track
instructors who teach 67 percent or less
of
a full-time assignment during an academic year,
generally on semester-to-semester assignments."
Moberg alleges that on August 12, 2012, he noticed that a document seal was missing
from his office. Moberg asked several staff members, including Administrative Assistant
Denyss Estrada (Estrada),
if
they had seen the missing seal. According to Moberg, Estrada
suggested that Cathy Mendelsohn (Mendelsohn), an administrator in Estrada's department,
may have the seal.
On August 22, 2012, Estrada sent an email message to Hartnell's Associate Vice
President for Human Resources and Equal Employment Opportunity Terri Pyer (Pyer) in
which Estrada complained that Moberg had accused her
of
taking the missing seal or having
information regarding its whereabouts, which Estrada denied. After explaining that she had
previously worked in Moberg's department but had left "because there are a lot
of
things going
on in that program that I feel are unethical," Estrada concluded her message to Pyer by stating
that she "need[s] Eric Moberg to stop harassing me."
When the seal was not located, Moberg reported it missing or stolen to various law
enforcement officials, including William Myers (Myers), Hartnell's Director of Security. In an
August 27, 2012 email message to Myers, Moberg wrote that Pyer "may have some
6

information on the whereabouts
of
the missing document seal." Pyer, who was included as a
recipient on Moberg's message to Myers, allegedly responded
by
denying any knowledge
of
the missing seal's whereabouts and by warning Moberg "to be more cautious about making
implied accusations." Moberg alleges that Pyer also warned him against making any similar
accusations against Mendelsohn, whom Moberg alleges is a personal friend
of
Pyer.
Meanwhile, in response to Estrada's email message, Pyer initiated an investigation
of
Estrada's complaint against Moberg. Pursuant to that investigation, Pyer requested that
Moberg attend a meeting with management.
Moberg alleges that on August 29, 2012, he sent an email message to Pyer in which he
invoked his right to union representation at the upcoming meeting demanded
by
Pyer. He
further alleges that, in response to Pyer's request for a meeting, Moberg offered to meet'on
September 3, 4, or 5 with Moberg'·s representative in attendance. According to Moberg, Pyer
did not respond.
Moberg further alleges that, on September 7, 2012, Pyer directed Human Resources
Administrative Assistant Monica Massing to contact Moberg and schedule a meeting during
the week
of
September 10-14. Moberg alleges that in his response to Massing, he again
invoked his right to union representation and he informed Pyer that he could not meet until the
following week because his representative, Phillip Tabera (Tabera), was on jury duty. Moberg
alleges that in a September 10, 2012 email, Pyer responded to Moberg's previous message by
insisting that she, and not Moberg, would choose Moberg' s representative for the meeting. 6
Although Moberg's charge includes numerous attachments, including several email
messages, it does not include copies of the email correspondence ostensibly leading up to
Moberg's termination, such as his August 27 message and Pyer's response thereto, nor the
August 29 and September 7, September 10 and September 12 correspondence (discussed
below) which allegedly document Moberg's request for representation and Pyer's responses
thereto. Hartnell has provided copies of some emails between Moberg, Pyer and Myers
6
7

Moberg's charge and supporting materials include a sworn declaration by Tabera in
which he identifies himself as a former staff and faculty member at Hartnell College, who is
currently employed as a faculty member at San Jose State University and who serves as an
elected member and president
of
the board
of
trustees
of
Salinas Union High School District.
Tabera also declares that he served as Moberg's "representative" in fall 2012, though his
declaration does not specify in what capacity or context Tabera represented Moberg. Although
the statement
of
Moberg's charge refers to Tabera as Moberg's "union representative,"
Hartnell alleges, and Moberg apparently admits, that Tabera is a not an officer, agent or
representative
of
the Association.7
Moberg also alleges that on September 12, 2012, he sent an email message to Pyer and
Hartnell President Willard Lewallen (Lewallen) in which Moberg invoked his right to
representation under EERA section 3543, subdivision (a), and advised Pyer and Lewallen that
he would file an unfair practice charge with PERB
if
Hartnell failed to respect Moberg' s right
to "union" representation.
On September 24, 2012, Hartnell's Interim Vice President Stephanie Low (Low)
notified Moberg by letter that, pursuant to Education Code section 87665 and Article
21
of
the
collective bargaining agreement between Hartnell and the Association, Moberg's employment
regarding the missing seal; between Moberg, Estrada and Pyer regarding Estrada's complaint
against Moberg; and between Moberg and Massing regarding Pyer's request to meet with
Moberg to discuss Estrada's complaint. Noticeably absent, however, is any documentation
of
Pyer's response to Moberg's request to postpone the meeting until his designated
representative was available or any indication that Pyer forwarded her response to the
Association, as alleged in Hartnell's position statement.
The third amended charge alleges that, "On September 10, Pyer responded [to
Moberg' s previous email message] by insisting that she [not Moberg] would chose [sic]
Moberg's representative for him but from a union to which Moberg did not belong."
(Emphasis added.)
7
8

with Hartnell would terminate at the close
of
business the same day. Low's letter to Moberg
provided no reason for the decision.
On October 2, 2012, Pyer summarized the results
of
her investigation in a memorandum
to Lewallen. According to Pyer's memo, Moberg had engaged in "[m]ultiple instances
of
dishonesty''
by
providing false information in his employment appHcation about his academic
degrees, which Hartnell alleges were "fraudulent" or "fake" degrees provided by unaccredited
"diploma mill[s]." Pyer's memo to Lewallen also asserted that, as part
of
his application for
employment with Hartnell, Moberg had omitted material information about his employment
history, including information about instances in which Moberg had been terminated or had
resigned in lieu
of
termination, and that Moberg had misrepresented himself as the faculty
advisor to a non-existent student newspaper at Hartnell.
Moberg denies these allegations. He alleges that he was an "exemplary" employee who
received excellent performance reviews during his employment at Hartnell. He alleges that he
was fully qualified and credentialed to teach all courses assigned to him by Hartnell and he
denies that any
of
the institutions issuing his degrees and credentials were "diploma mill[s]."
On January 15, 2013, Hartnell's governing board voted to approve and/or ratify various
personnel actions, including the release
of
Moberg, effective at the close
of
business on
September 24, 2012. Appendix A to the board's minutes lists several other personnel actions
(appointments, retirements, resignations, releases) affecting employees in management,
classified and certificated positions that were ratified by the board after their effective dates.
However, Moberg appears to be the only certificated faculty member whose release was
ratified after the fact, at least at that particular meeting.
9

In addition to the present charge, Moberg has filed unfair practice charges against
other former employers, including two charges against the Monterrey Peninsula Unified
School District (MPUSD) (PERB Case Nos. SF-CE-2830-E and SF-CE-3002-E); and at
least one charge each against the Cabrillo Community College District (PERB Case
No. SF-CE-2994-E), the West Valley Mission Community College District (West Valley)
(PERB Case No. SF-CE-3060-E), and the San Mateo County Superintendent
of
Schools
(PERB Case No. SF-CE-2744-E). In Monterey Peninsula Unified School District (2014)
PERB Decision No. 2381 (Monterey Peninsula), the Board affirmed dismissal
of
one
of
Moberg' s charges. Attorneys for the law firm Lozano Smith represented the Monterey
Peninsula Unified School District in the unfair practice charge investigation and Moberg's
appeal from dismissal that resulted in the Board's decision in Monterey Peninsula. ·
Moberg alleges that Hartnell and his other former employers and their legal counsel
have communicated with each other in defending against Moberg's various charges and that
these entities and their attorneys have further collaborated to "blacklist" Moberg from
employment. ·Moberg alleges, for example, that Pyer's October 2, 2012 memorandum to
Lewallen "acknowledges that [the law firm
ofJ
Lozano Smith forwarded documents from the
SF-CE-2830-E case" to Hartnell.
Moberg alleges that, on or about December 4, 2013, Hartnell refused to comply with
Moberg's request that an employment verification form be completed and returned to Moberg
and that Hartnell instead insisted on responding to any requests for employment verification
"directly to the person or entity requesting the verification." Moberg further alleges that
West Valley terminated his employment in February 2014, after he informed West Valley of
the present charge against Hartnell.

In addition to terminating his employment, Moberg alleges that Hartnell has withheld
pay that is due and owing to Moberg. Moberg alleges that he had contracts with Hartnell to
teach two courses in the fall 2012 semester but, because
of
his early termination, which was
not approved by Hartnell's governing board until January 15, 2013, well after the end
of
the
semester fall 2012 semester, he is owed $8,418.47 in unpaid wages for the remainder
of
these
employment contracts.
Among the materials included with Moberg's third amended charge is the Tabera
Declaration which states that, to Tabera's knowledge, Hartnell has never before terminated a
probationary or temporary instructor without prior approval from the governing board.
Hartnell argues that, as interim vice president, Low had authority to terminate Moberg, even
if
that decision was not ratified by the governing board until months after the fact.
As a remedy, Moberg seeks reinstatement to Hartnell as a full-time, permanent
(tenured) instructor as
of
July 1, 2013, the beginning
of
the 2013-2014 school year; back pay
from September 25, 2012, to the present, including wages due and owing for the fall 2012
semester in the amount
of
$8,418.47; a broad cease-and-desist order prohibiting Hartnell and
any
of
its attorneys from discriminating or retaliating against Moberg for protected activities
and from interfering with Moberg's right to select his own representative.
DISMISSAL OF THE CHARGE
The warning and dismissal letters advised Moberg that, under PERB precedent, to
demonstrate that an employer has discriminated or retaliated against an employee in violation
of
BERA section 3543.3, subdivision (a), the charging party must show that: (1) the employee
exercised rights under BERA; (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
11

because
of
the exercise
of
those rights. (Novato Unified School District (1982) PERB Decision
No. 210 (Novato).)
The third amended charge alleges that Pyer' s insistence that she, not Moberg, would
decide who would serve as Moberg's representative "would reasonably tend to discourage
participation in protected activity and thereby interfere with the rights
of
employees and/or
employee organizations." However, the warning and dismissal letters include no discussion
of
Moberg' s interference allegation, either as a separate violation, or as facts tending to show
unlawful motive in support ofMoberg's discrimination allegation. The warning letter states that
the Board agent could not determine from the facts presented whether Pyer's email message
asserting her right to choose Moberg's representative was conduct that was objectively adverse
to Moberg' s employment.
Protected Activity/Employer Knowledge
The Office
of
the General Counsel determined that Moberg had engaged in protected
conduct by filing and pursuing an unfair practice charge against a former employer. It also
determined, however, that there were no facts to suggest that Hartnell' s decision makers knew
of
Moberg's charge against another employer, since it was not filed until after his
September 24, 2012 termination by Hartnell. (Peralta Community College District (2003)
PERB Decision No. 1576, p. 9; San Joaquin Delta Community College District (2010) PERB
Decision No. 2091, adopting dismissal letter at p. 3.)
The
dismissal letter acknowledged Moberg's theory that the law firms representing
Hartnell and the other community college districts where Moberg has worked may have served
as a conduit
of
information about Moberg's charges. However, the Office
of
the General
12

Counsel concluded that, even
if
such communications between the law firms and their clients
could
be
established, under County
of
San Diego (2012) PERB Decision No. 2258-M, they
were not sufficiently specific to demonstrate that the actual individual(s) who decided to take
adverse action against Moberg had such knowledge.
The Office
of
the General Counsel also concluded that Moberg had alleged insufficient
facts to demonstrate his involvement in protected conduct on August 29, 2012, when he
allegedly invoked his right to representation for a meeting with management to discuss Estrada's
harassment complaint against Moberg. It appears from the dismissal letter that, because it was
unclear whether such a meeting ever took place, the Office
of
the General Counsel considered
this allegation too "ambiguous" to demonstrate that any protected activity actually occurred.
Although not repeated in the dismissal letter, the warning letter had also advised Moberg
that his alleged threat to file a PERB charge
if
Hartnell did not respect Moberg's rights under
EERA was insufficient to establish protected conduct. The warning letter acknowledged that
filing a charge and participating in PERB's unfair practice process are protected activities.
However, the warning letter stated that it could not be determined from the facts presented
whether Moberg's threat to file a PERB charge was protected. The warning letter did not
explain what additional facts would be needed to determine whether Moberg's threat to file a
PERB charge was protected. However, the warning letter cited to California School Employees
Association (Petrich) (1989) PERB Decision No. 767 (CSEA (Petrich)) for the proposition that
an individual's unauthorized filing
of
a unit modification petition was unprotected, thereby
suggesting that a threat to file a PERB charge, or perhaps even filing a PERB charge, are only
protected conduct when authorized or meritorious.
13

Adverse Action
The Office
of
the General Counsel determined that terminating Moberg' s employment
constituted an adverse action. The Office
of
the General Counsel also acknowledged that
withholding wages owed to an employee would be "objectively adverse" within the meaning
of
PERB precedent, but concluded that Moberg had not alleged sufficient facts to demonstrate
that he was entitled to pay for the entire fall 2012 semester, when his employment with
Hartnell had ended on September 24, 2012. The Office
of
the General Counsel also reasoned
that, although Hartnell's governing board did not ratify Moberg's termination until January 15,
2013, 	Moberg had not alleged sufficient facts to show that early termination
of
his
employment contracts entitled him to pay for the entire semester, including for months when
Moberg performed no actual work.
8
Unlawful Motive
The Office
of
the General Counsel concluded that Moberg had not alleged sufficient
facts to demonstrate his allegations that Hartnell had treated Moberg differently from other,
similarly-situated employees, departed from established practices, conducted a cursory
investigation, or engaged in any other conduct indicating a nexus between Moberg's alleged
protected activity and the adverse action or actions.
The dismissal letter incorrectly states that Hartnell's governing board allegedly did
not ratify Moberg's termination until January 15, 2014. However, Moberg's appeal does not
argue that this apparent typographical error had any effect on the Office
of
the General
Counsel's detennination that his charge failed to state a prima facie case and, because it does
not appear to affect any of the issues presented by Moberg's appeal, we disregard the error as
non-prejudicial. (Regents
of
the University
of
California (1991) PERB Decision No. 891-H,
p. 4; Antelope Valley Community College District (1979) PERB Decision No. 97, pp. 24-25.)
8
14

First, the dismissal letter rejected Moberg's contention that, as
of
September 24, 2012, he
was no longer a temporary employee, but a probationary or contract employee, within the
meaning
of
the Education Code, and therefore entitled to notice, a pre-termination hearing and
other procedural protections afforded by the Education Code. The dismissal letter observed that
Education Code sections 87482 and 87482.5 provide for conversion to probationary (contract)
status only when an employee is assigned more than 67 percent
of
the hours per week considered
a full time assignment, and when this assignment continues
for
more than two semesters or three
quarters. The Office
of
the General Counsel acknowledged Moberg's evidence that he had
worked in excess
of78
percent
of
a full teaching load during the 2011-2012 academic year, but
concluded that this evidence does not establish that Moberg worked more than two consecutive
semesters or three consecutive quarters to attain probationary status, as required
by
the Education
·Code. In particular, the dismissal letter did not regard Moberg's allegation that he was "offered"
additional work as relevant, apparently because Moberg did not also allege that he accepted the
offer and/or because he did not specify how much "additional" work was offered, so as to allow
the Office
of
the General Counsel to determine whether Moberg began working the fall 2012
semester at more than .67 full-time equivalent (FTE).
The Office
of
the General Counsel also rejected Moberg' s contention that Hartnell and
other community college districts where Moberg has previously worked and/or their respective
legal counsel may have communicated with one another about Moberg's PERB charges. The
dismissal letter reasoned that the information allegedly shared by these entities concerned
Moberg's previous and current PERB charges, which is publicly available and therefore not
circumstantial evidence
of
unlawful motive by any
of
the decision makers at Hartnell who
decided to terminate Moberg's employment and/or withhold wages allegedly owed to Moberg.
15

The Office
of
the General Counsel also rejected as too conclusory Moberg's allegation
that he could only be terminated with prior approval
by
Hartnell' s governing board and that, the
fact that his termination was not ratified
by
the governing board until some four months after the
fact demonstrated disparate treatment, a departure from established procedures, a cursory
investigation or other "'nexus' factors" recognized by PERB decisional law. Because the Office
of
the General Counsel did not accept Moberg's contention that his employment had converted
from temporary to probationary status, it noted that, pursuant to Education Code section 87665,
Hartnell's governing board was permitted to terminate Moberg's employment at its discretion at
the end
of
a day
or
week, whichever is appropriate and that such decision is not subject to
judicial review, except as to the time
of
termination.
Finally, the Office
of
the General Counsel determined that Hartnell had not departed from
established procedures or offered shifting justifications for Moberg's termination, when it
claimed to have discovered "[m]ultiple instances
of
dishonesty" committed
by
Moberg during
his application and employment with Hartnell. According to the dismissal letter, it would not
be a departure from established procedures for Hartnell to terminate Moberg,
if
it discovered
that he did not meet the minimum qualifications for his position. Additionally, because
Hartnell offered no reason for Moberg' s termination, according to the dismissal letter, its later
discovery that Moberg lacked the minimum qualifications for his position and had engaged in
dishonesty did not constitute "shifting" justifications.
ISSUES ON APPEAL
Moberg's appeal asserts several errors or omissions in the processing
of
his charge.
First, Moberg argues that the dismissal letter neglected to acknowledge two instances
of
protected conduct: (a) an August 29, 2012 email message to Pyer in which Moberg allegedly
16

requested union representation for a meeting with Pyer, and (b) a follow up message
of
September 12, 2012, to Pyer and the President
of
the Hartnell College Board
of
Education in
which Moberg again invoked his right to union representation for an upcoming meeting with
Pyer. Moberg also asserts that his September 12, 2012 email message constituted protected
conduct, because in it, Moberg threatened to file an unfair practice charge with PERB for
interference and retaliation,
if
Hartnell did not respect his rights under EERA.
Moberg also asserts that the Office
of
the General Counsel misinterpreted
sections 87482 and 87665
of
the Education Code which guarantee Moberg "contract" or
permanent status and due process rights under the circumstances. According to Moberg,
Hartnell's dismissal
of
Moberg, without providing a reason and other procedural protections,
·therefore constituted a departure from established standards and procedures. To the extent the
Office
of
the General Counsel's investigation resulted in contrary legal theories as to the
meaning
of
the Education Code or other matters
of
unsettled external law, Moberg argues that,
under Eastside Union School District (1984) PERB Decision No. 466 (Eastside) and other
PERB precedent, fair proceedings,
if
not due process require that a complaint be issued and the
matter proceed to a formal hearing.
Next, Moberg asserts that the dismissal letter's reliance on Hartnell's "after the fact"
justifications for Moberg's termination, when no reason was offered at the time
of
his
termination, was improper and inconsistent with Sacramento City Unified School District
(2010) PERB Decision No. 2129 (Sacramento City) and other PERB authority holding that an
employer's attempt to legitimize its decision after it has already taken an adverse action
constitutes evidence
of
unlawful motive.
17

Moberg contends that the dismissal letter also failed to consider other relevant factual
material, including the Tabera Declaration submitted as part
of
Moberg's third amended
charge. According to Moberg, this information demonstrates various so-called
"'nexus'
factors" recognized
by
PERB, including disparate treatment; departure from established
practice; exaggerated, vague, inconsistent or non-existent justifications offered for taking
adverse action; and expressions
of
anti-union animus.
Moberg also asserts that the dismissal letter misunderstood his allegations that Hartnell
and Moberg' s other former employers, and their attorneys, have not only communicated with
one another about Moberg's various PERB charges, but that they have also "collud[ed]" to
interfere with or otherwise deny Moberg protected rights because
of
PERB charges Moberg
filed against those previous employers.
·Hartnell's statement in opposition to Moberg's appeal, which is approximately one
page
in
length, does not specifically address any
of
the issues raised by Moberg. Instead, it
asserts, without explanation or citation to authority, that Moberg has failed to identify any
procedural or factual errors in the warning and dismissal letters, has not cited any relevant
law or rationale to support the grounds asserted for the appeal, and has improperly sought to
"re-litigate" issues previously dismissed by the Office
of
the General Counsel.
DISCUSSION
A. 	Standard
of
Review and Applicable Law
We begin with the standard.
of
review for dismissal/refusal to issue a complaint and the
elements for stating a prima facie case
of
discrimination and interference. We then consider
Moberg's request to supplement his appeal with newly-discovered evidence, before turning to
issues raised by his appeal.
18

Board Review
of
Dismissal/Refusal to Issue a Complaint. To determine whether a
charge states a prima facie case, the Board agent must assume that the essential facts alleged
in
the charge are true. (San .Juan Unified School District (1977) EERB Decision No. 12.) It is not
the function
of
the Board agent to judge the merits
of
the charging party's dispute. (Lake Tahoe
Unified School District (1993) PERB Decision No. 994; Saddleback Community College District
(1984) PERB Decision No. 433.) When the Board agent's investigation "results in receipt
of
conflicting allegations
of
fact or contrary theories oflaw, fair proceedings,
if
not due process,
demand that a complaint be issued and the matter be sent to formal hearing." (Eastside, supra,
PERB Decision No. 466, p. 7.)
9
Similarly, because this matter comes before the Board on dismissal without a hearing,
we are not concerned with making findings
of
fact or weighing the parties' conflicting
allegations. (Eastside, supra, PERB Decision No. 466, p. 7.) Rather, at this stage
of
the
proceedings, we treat the charging party's factual allegations as true and consider them in the
light most favorable to the charging party's case. (San .Juan, supra, EERB Decision No. 12,
p. 4; Golden Plains Unified School District (2002) PERB Decision No. 1489 (Golden Plains),
p. 6.) Where the charging party offers conflicting facts, the Board accepts that version most
favorable to the charging party's case and disregards others. ( California School Employees
Association & its Chapter 244 (Gutierrez) (2004) PERB Decision No. 1606, pp. 3-4.)
In addition to the charging party's factual allegations, we may also consider information
provided by the respondent, when such information is submitted under oath, complements
without contradicting the facts alleged in the charge, and is not disputed by the charging
party. (PERB Reg. 32620, subd. (c); Service Employees International Union #790 (Adza) (2004)
Before January 1, 1978, PERB was known as the Educational Employment Relations
Board or EERB.
9
19

PERB Decision No. 1632-M (SEIU (Adza)); Lake Tahoe Unified School District (1993) PERB
Decision No. 994 (Lake Tahoe); Riverside Unified School District (1986) PERB Decision
No. 562a (Riverside).) When the respondent can establish an affirmative defense as a matter
of
law based on undisputed facts, "the charge must be dismissed even when the charging party
has otherwise established a prima facie case." (Metropolitan Water District
of
Southern
California (2009) PERB Decision No. 2055-M (Metropolitan Water District), p. 4, fn. 4, citing
Long Beach Community College District (2003) PERB Decision No. 1568.)
1.
	Elements
of
Discrimination or Retaliation
To state a prima facie case that an employer discriminated or retaliated against an
employee in violation
of
BERA section 3543.5, subdivision (a), the charging party must show
that: (
1)
the employee exercised rights under BERA; (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 adverse action because
of
the employee's exercise
of
those rights. (Novato,
supra, PERB Decision No. 210.)
Unlawful motivation, purpose or intent is "the specific nexus required in the
establishment
of
a prima facie case"
of
retaliation. (Palo Verde Unified School District
(2013) PERB Decision No. 2337 (Palo Verde), p. 10.) Such nexus may be established by direct
evidence, as when the employer's words or conduct reveal that its advyrse action was based on
union activity or other protected conduct (Contra Costa Community College District (2006)
PERB Decision No. 1852 (Contra Costa II), adopting proposed dee. at pp. 10, 14-16;
Chula Vista Elementary School District (2011) PERB Decision No. 2221 (Chula Vista),
pp. 19-20), or when the natural and probable consequence
of
the employer's conduct is to
20

discourage (or encourage) protected activity, such that the Board may fairly presume that the
employer intended this result. (Santa Clara Valley Water District (2013) PERB Decision
No. 2349-M, p. 23, fn. 8; Campbell Municipal Employees Assn.
v.
City
of
Campbell (1982)
131
Cal.App.3d 416, 422A24; see also American Ship Building
Co.
v.
NLRB (1965)
380 U.S. 300, 311-312; and NLRB
v.
Great Dane Trailers, Inc. (1967) 388 U.S. 26, 32.)
However, because unlawful motive is a subjective condition generally known only to the
charged party, direct and affirmative proof is rarely available. PERB cases therefore recognize
that nexus may also be established by circumstantial evidence and inferred from the record as a
whole or
by
some combination
of
direct and circumstantial evidence. (Novato, supra, PERB
Decision No. 210, p. 6; Carlsbad Unified School District (1974) PERB Decision No. 89
(Carlsbad), p. 11; Republic Aviation Corp.
v.
NLRB (1945) 324 U.S. 793, 805; Radio Officers'
Union
v.
NLRB (1954) 347 U.S. 17, 40-43.)
Though
its decisional law, PERB has developed several "'nexus' factors" used for
identifying the circumstances which may support an inference
of
unlawful intent. The first
of
the so-called nexus factors is the timing
of
the employer's decision to take adverse action.
Although close temporal proximity between the employee's protected conduct and an adverse
action is important (North Sacramento School District (1982) PERB Decision No. 264
(North Sacramento)) , timing alone is not determinative but goes to the strength
of
the
inference
of
unlawful motive. (Sacramento City, supra, PERB Decision No. 2129; Moreland
Elementary School District (1982) PERB Decision No. 227.)
Along with suspicious timing, facts establishing one or more
of
the following factors
may also be used to establish a prima facie case
of
discrimination/retaliation: (1) the
21

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, p. 15); (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 (State
of
CA
(Parks & Recreation)); (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
(Coast), adopting proposed dee. at p. 36); (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 (Oakland)) or the offering
of
exaggerated, vague, shifting or ambiguous reasons
(McFarland Unified School District (1990) PERB Decision No. 786; Novato, supra, PERB
Decision No. 210, pp. 12-13); (6) employer animositytowards union activists or protected
employee activity (City
of
Oakland (2014) PERB Decision No. 2387-M, pp. 28-31; Coast,
supra, adopting proposed dee. at pp. 41-42); or (7) any other facts that might demonstrate the
employer's unlawful motive. (North Sacramento, supra, PERB Decision No. 264; Rainbow
Municipal Water District (2004) PERB Decision No. 1676-M (Rainbow), p. 1.)
If
the charging party establishes a prima facie case, the burden shifts to the employer to
prove by a preponderance
of
the evidence that it would have taken the same course
of
action,
regardless
of
any protected activity. (Trustees
of
the California State University (2000)
PERB Decision No. 1409-H, citing Novato, supra, PERB Decision No, 210; Martori Bros.
Dist.
v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721.) To prevail on its affirmative
22

defense, the employer must establish both that a legitimate, non-discriminatory reason existed
for taking the adverse action, and that the reason proffered was, in fact, the employer's reason
for taking adverse action. (Palo Verde, supra, PERB Decision No. 2337, pp. 12-13;
Chula Vista, supra, PERB Decision No. 2221, p. 21.)
However, because the function
of
a Board agent investigating a charge is not to
weigh evidence, determine credibility or make findings
of
fact (SEIU (Adz
a),
supra, PERB
Decision No. 1632-M; Lake Tahoe, supra, PERB Decision No. 994; Riverside, supra, PERB
Decision No. 562a),
it
is generally not appropriate at this stage
of
the proceedings to determine
the employer's true motive for taking adverse action. (Sacramento City, supra, PERB Decision
No. 2129, p. 12, fn. 8.) An employer's affirmative defense should only
be
considered at the
charge-processing stage
of
unfair practice proceedings
if
raised in a verified and properly
served position statement (PERB Regs. 32140, subd. (a), 32620, subd. (c); County
of
Santa Clara (2015) PERB Decision No. 2431-M, pp. 17-18), and
if
the asserted defense rests
on factual allegations that do not contradict those included in the charge, and which the
charging party does not dispute. (Oakland, supra, PERB Decision No. 1529, pp. 11-12;
Metropolitan Water District, supra, PERB Decision No. 2055-M, p. 4, fn. 4.)
2. 	PERB's Tests for Interference with Protected Rights
Unlike an allegation
of
discrimination, a prima facie case
of
employer interference with
protected rights requires no showing
of
unlawful motive, purpose or intent, but only that the
employer has engaged in conduct that tends to or does result in at least slight harm to rights
guaranteed by EERA. ( Carlsbad, supra, PERB Decision No. 89, pp. 10-11; County
of
Riverside (2010) PERB Decision No. 2119-M, pp. 16-23; Jurupa Unified School District
23

(2012) PERB Decision No. 2283 (Jurupa), p. 29.) A finding
of
interfet;ence, coercion or
restraint does not require evidence that any employee subjectively felt threatened or
intimidated or was in fact discouraged from participating in protected activity; rather the
inquiry is an objective one which asks whether, under the circumstances,
an
employee would
reasonably
be
discouraged from engaging in protected activity. ( Clovis Unified School District
(1984) PERB Decision No. 389.)
'
If
the harm to protected rights is slight and the employer offers justification based on
operational necessity, the competing interests are balanced. ( Carlsbad, s.upra, PERB Decision
No. 89, p. 10; John Swett Unified School District (1981) PERB Decision No. 188 (John Swett),
pp. 6-7; see also State
of
California (Department
of
Personnel Administration) (2011) PERB
Decision No. 2106a-S.) If the harm to employee rights outweighs the asserted business
justification, a violation will
be
found. (Omnitrans (2009) PERB Decision No. 2030~M,
pp. 22-24.) Where the employer's conduct is inherently destructive
of
protected rights, it will
be
excused only on proof
that it was caused
by
circumstances beyond the employer's control
and that no alternative course
of
action was available. (Santa Monica Community College
District (1979)PERB Decision No. 103, pp. 19-20, affirmed by (1980) 2 Cal.App.3d 684;
Carlsbad, supra, PERB Decision No. 89, pp. 10-11.) Irrespective
of
the foregoing, a charge
will be sustained where it is shown that the employer would not have engaged in the
complained-of conduct but for an unlawful motivation, purpose or intent. (Monterey
Peninsula, supra, PERB Decision No. 2381, p. 42; Carlsbad, supra, PERB Decision No. 89,
pp. 10-11.)
24

An employer may freely express or disseminate its views, arguments or opinions on
employment matters, unless such expression contains a threat
of
reprisal or force or promise
of
benefit. (Rio Hondo Community College District (1980) PERB Decision No. 128, pp. 18-20;
City
of
Oakland, supra, PERB Decision No. 2387-M, pp. 26-27.) The safe harbor for
employer speech does not apply, however, to advocacy on matters
of
employee choice such as
urging employees to participate or refrain from participation
in
protected conduct, statements
that disparage the collective bargaining process itself, implied threats, brinkmanship or
deliberate exaggerations. (County
of
Riverside, supra, PERB Decision No. 2119-M, pp. 16-23;
NLRB
v.
Gissel Packing
Co.
(1969) 395 U.S. 575, 619-620.) The Board will look to the
surrounding circumstances in which employer speech occurs, including the employer's power
to control terms and conditions
of
employment and the economic dependence
of
employees on
the employer, to determine whether, when viewed in context, employer speech conveys a
threat
of
reprisal or force, a promise
of
benefit or a preference for one employee organization
over another. (City ofTorrance, supra, PERB Decision No. 1971-M, pp. 20-21; Los Angeles
Unified School District (1988) PERB Decision No. 659, pp. 9-10; Coachella Valley Mosquito
& Vector Control District (2009) PERB Decision No. 2031-M, pp. 20-21; John Swett, supra,
PERB Decision No. 188, pp. 5-8, adopting proposed dee. at pp. 27-28.) Although the above
test requires a balancing
of
employee rights against the employer's asserted justification
of
operational necessity, because, as noted above, during the initial investigation
of
a charge.
PERB accepts the charging party's factual allegations as true, it is generally not appropriate to
dismi~s without a hearing interference allegations on the basis
of
an affirmative defense, such
as an employer's right to free speech, unless the defense can be established as a matter
of
law
25

based on undisputed facts. (County
of
Santa Clara, supra, PERB Decision No. 2431-M,
pp. 17-18; Metropolitan Water District, supra, PERB Decision No. 2055-M, p. 4, fn. 4.)
In addition to the Carlsbad and Rio Hondo tests used for allegations
of
garden-variety
interference and coercive employer speech, PERB has adopted a more specific test for alleged
violations
of
the representational' rights
of
employees and/or employee organizations in
employer-initiated investigative or disciplinary proceedings. In such cases, the charging party
must demonstrate: (1) the employee or the representative invoked the right to representation on
behalf
of
the employee; (2) for an investigative, disciplinary or other employer-initiated meeting;
(3) which the employee reasonably believed might result in disciplinary action; and (4) the
employer denied that request. (Capistrano Unified School District (2015) PERB Decision
No. 2440 (Capistrano), p. 16; Lake Elsinore Unified School District (2004) PERB Decision
No. 1648, p. 5; see also Social Workers' Union, Local 535
v.
Alameda County Welfare
Department (Social Workers) (1974)
11
Cal.3d 382, 386-388.)1°
Before turning to the issues raised by Moberg's appeal, we consider his request to
present evidence in support
of
the appeal that was not provided to the Office
of
the General
Counsel during its investigation
of
the charge.
' 	'
Where California's public-sector labor relations statutes are similar or contain
analogous provisions, agency and court interpretations under one statute are instructive under
others. (Redwoods Community College Dist.
v.
Public Employment Relations Bd. (1984)
159 Cal.App.3d 617, 623-624 (Redwoods).) Additionally, private-sector precedent established
underthe National Labor Relations Act (NLRA), 29 U.S.C. section 151 et seq., and
California's Agricultural Labor Relations Act, Labor Code sections 1140-1166:3, is persuasive
for interpreting parallel or comparable provisions in the PERB-administered statutes. (Fresno
County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M,
p. 12, fn. 8, and pp. 24-37; McPherson v. Public Employment Relations Bd. (1987)
189 Cal.App.3d 293, 311 (McPherson).)
10
26

B. 	Whether Good Cause Exists to Consider New Evidence on Appeal
On February 13, and July 20, 2015, Moberg submitted to the Board requests to present
and have the Board consider new evidence in conjunction with the present appeal. The
ostensibly new evidence consists
of
a reporter's transcript
of
January 12, 2015 generated in
separate proceedings before the State
of
California Commission on Teacher Credentialing
(CCTC) to determine whether to revoke Moberg's teaching credentials, performance and
student evaluations from other community college districts where Moberg has worked, a
literary article
by
Moberg published in The Explicator Vol. 73, No. 1 in 2015, and
correspondence from the CCTC, dated June 26, 2015, notifying Moberg
of
dismissal
of
an
accusation against him, effective July 26, 2015.
The District opposes these requests on various grounds. It disputes Moberg's
contentions that some
of
the evidence was not previously available and it argues that, even
if
considered, none
of
the evidence is relevant to the issues raised by Moberg's appeal.
Pursuant to PERB Regulation 32635, subdivision (b), the Board may supplement the
record
of
an appeal with new supporting evidence only for "good cause." PERB has generally
found "good cause" to do so, when the new allegations or supporting evidence presented
in
an
appeal could not have been discovered by the charging party with the exercise
of
reasonable
diligence before the charge was dismissed. (American Federation
of
State, County, and
Municipal Employees, Local 2620 (McGuire) (2012) PERB Decision No. 2286-S.) Thus,
"good cause" may be found when the events giving rise to the new evidence did not occur until
after the charge was dismissed. (Cla.remont Unified School District (2014) PERB Decision
No. 2357, p. 5.) Moberg points out that the credential revocation hearing did not occur until
almost one month after his charge was dismissed, while the CCTC decision to dismiss the
27

accusation against Moberg was not effective until July 26, 2015. Because these documents
could not have been submitted to the Board agent as part
of
her investigation
of
the charge, we
agree that good cause exists for the Board to consider them as part
of
this appeal.
The transcript
of
the CCTC hearing consists
of
approximately
33
pages, most
of
which
concerns the testimony by Hermelinda Rocha (Rocha), who was in charge
of
coordinating the
Academy for College Excellence (ACE) Program at Cabrillo College during the approximately
three-or four-year period when Moberg worked there. 	Rocha testified as to Moberg's skills
and abilities "to work collaboratively with everyone," and that Moberg was instrumental in
providing a positive experience for the students in the ACE Program. She also testified that
she was unaware
of
any complaints from anyone about working with Moberg. Moberg's
accompanying declaration asserts that this evidence is relevant because it demonstrates that
Moberg was fully qualified and credentialed to teach his assigned courses and rebuts Hartnell's
allegations that the institutions issuing Moberg's degrees and credentials were "diploma
mill[s]." According to Moberg, the evidence "impacts and alters the decision to dismiss the
charge" because it demonstrates that Hartnell' s after-the-fact justification for terminating
Moberg was pretextual.
11
The Board has reviewed the transcript, in its entirety, and finds it only marginally
relevant,
if
at all, to any
of
the issues raised by Moberg's appeal. 	Because we must accept the
charging party's factual allegations as true at this stage
of
the proceedings, and because
The third amended charge includes a similarly laudatory quote from Rocha about
Moberg's skills and abilities, though it identifies her only as Moberg's "faculty lead" in the
ACE Program and makes no mention of Cabrillo College or any other institution. The
implication is that the ACE Program where Moberg worked existed at Hartnell and that Rocha
was Moberg's faculty lead at Hartnell rather than at Cabrillo College, as indicated in the
newly-presented evidence provided by Moberg. Although the apparent discrepancy is
puzzling, we need not attempt to resolve it at this stage of the proceedings. (Eastside, supra,
PERB Decision No. 466, p. 7.)
11
28

Moberg denies each
of
the justifications offered
by
Hartnell for his termination, whether
Hartnell had a legitimate, non-discriminatory justification for terminating Moberg is not before
the Board in the current posture
of
this case. Resolving factual disputes raised
by
the
employer's affirmative defense should be considered in a formal hearing and not during the
initial investigation into a charge or upon Board review
of
a dismissal/refusal to issue a
complaint. (Oakland, supra, PERB Decision No. 1529, pp. 11-12; Golden Plains, supra,
PERB Decision No. 1489, p. 6.) Moreover, while Rocha's testimony goes to Moberg's
qualifications, skills, abilities and performance
at
Cabrillo, the issue presented by this appeal is
whether Moberg has alleged sufficient facts to state a prima facie case
of
discrimination by
Hartnell, a separate employer, where Moberg presumably taught different courses.
To the extent the transcript supports Moberg's allegation that he was an "exemplary"
employee who received excellent performance reviews during his employment at Hartnell, it
does so only indirectly and tentatively, at best. Indeed, on cross-examination, Rocha admitted
that she was unaware
of
what led to Moberg' s termination at Cabrillo, and that she was even
less familiar with the circumstances surrounding his employment by or departure from
. Hartnell.
Moreover, the issues before the Board in this appeal do not require weighing evidence,
resolving conflicting versions
of
the facts, making credibility determinations or deciding
whether Hartnell has proved that it was justified in taking adverse action against Moberg
regardless
of
any protected activity. (Eastside, supra, PERB Decision No. 466, p. 7; San Juan,
supra, EERB Decision No. 12, p. 4; Golden Plains, supra, PERB Decision No. 1489, p. 6.)
We therefore conclude that each of the other items
of
newly-available evidence, including
favorable performance and student evaluations, an article authored by Moberg and published in
29

a literary journal, and the CCTC's dismissal
of
the accusation against Moberg, are, at most,
only marginally relevant at this stage
of
the proceedings and do not affect any
of
the issues on
appeal. Assuming, as Moberg contends, this evidence demonstrates that he met the minimum
qualifications for employment
by
Hartnell, that and other issues bearing on Hartnell' s
affirmative defense are only properly considered in PERB's hearing process.
We next consider the issues raised
by
Moberg's appeal, turning first to his
discrimination allegation.
C. Whether Moberg Has Sufficiently Alleged Discrimination
1.	
Adverse Action
The third amended charge alleges three adverse actions by Hartnell: ( 1) termination
of
Moberg's employment on September 24, 2012; (2) withholding wages allegedly owed to
Moberg either for time actually worked and/or for the executory portion
of
his employment
contract following his termination; and (3) conspiring with other former employers
of
Moberg
and their attorneys to deny Moberg future employment opportunities.
The Office
of
the General Counsel determined that termination from employment was
an adverse action. It likewise determined that withholding wages owed to an employee "would
be objectively adverse to his or her employment" within the meaning
of
PERB decisional law
(see Palo Verde Unified School District (1988) PERB Decision No. 689, p. 12; Newark Unified
School District (1991) PERB Decision No. 864, pp. 11-12.) However, the Office
of
the General
Counsel determined that Moberg had provided insufficient facts to support his allegation that his
employment contract with Hartnell entitled him to wages for work not actually performed
following his tennination.
30

The Office
of
the General Counsel did not address Moberg's allegation that Hartnell also
withheld wages owed to Mobergfor time actually worked. The third amended charge alleges
that Moberg's contracts to teach English and Education courses during the fall 2012 semester
totaled $10,036.41 and that "Hartnell paid Moberg only $1617.94, less even than Moberg had
earned up until September 24, 2012." (Emphasis added.) According to the third amended
charge, Moberg completed "Assignment #2" on August 16, 2012, which "was worth $2155.01
itself," while "Assignment 1," and "Assignment #3,"
if
prorated to the date
of
Mo berg's
termination, were worth $991.11 and $1,414.28. The third amended charge also alleges that
Moberg repeatedly requested back pay for all amounts earned before September 24, 2012, but
not paid. In support
of
this allegation, the third amended charge includes a copy
ofMoberg's
October 19, 2012 email correspondence with Hartnell's Payroll Supervisor Dora Sanchez
disputing the amount paid to Moberg on or about October 5, 2012.
Hartnell's position statement admits that one
ofMoberg's
time sheets was misplaced "for
a short period
of
time," but asserts that it has since paid Moberg all sums owing. However,
Moberg's appeal reiterates the above allegations that Hartnell has not paid him wages due and
owing for all time actually worked, an allegation that was never addressed
by
the Office
of
the
General Counsel.
The charging party is entitled to a warning letter identifying any deficiencies before the
charge is dismissed. (PERB Reg. 32620, subd. (d); County
of
San Joaquin (2003) PERB
Decision No. 1570-M, p.
8,.)
Charge allegations that are not investigated before dismissal must
be remanded either for further investigation or for issuance
of
a complaint. (Trustees
of
the
California State University (2014) PERB Decision No. 2384-H (Trustees
of
CSU), pp. 4-5;
County
of
Alameda (2006) PERB Decision No. 1824-M, pp. 4-5.) We conclude that Moberg
31

has sufficiently alleged that Hartnell took adverse action by withholding wages for time actually
worked.
Moberg's appeal also asserts that the Office
of
the General misunderstood his
blacklisting allegation. According to the appeal, the third amended charge alleges that Hartnell
and other former employers and the law firms representing them not only communicated with
one another about Mo berg's various PERB charges,.but that they also "collud[ ed]" with one
another to retaliate against, interfere with or otherwise deny Moberg employment opportunities
because
of
Mo berg's protected activity. We disagree with Moberg's contention that the Office
of
the General Counsel misunderstood this allegation.
The warning letter characterizes Moberg's allegation as follows: "Charging Party
alleges that, since dismissing him from employment, 'Hartnell ... has also contacted Moberg's
other employers in order to influence them to assist Hartnell in retaliating against Moberg."'
The warning letter also states: "Charging Party contends that [the law firm of] Lozano Smith
is assisting the Hartnell Community College District and its attorneys, Leibert, Cassidy,
Whitmore, in retaliating against him." Thus, it appears the Office
of
the General Counsel fully
grasped the nature
of
Moberg' s allegation, but dismissed it as too conclusory and speculative
to support a prima facie case
of
discrimination.
We agree with the Office
of
the General Counsel that Moberg' s blacklisting allegation
is too conclusoryto state a prima face case. (Service Employees International Union
Local 250 (Stewart) (2004) PERB Decision No. 1610-M, p. 3.) Although a refusal to hire or
consider for employment because
of
the applicant's protected activity is an unfair practice
(Contra Costa Community College District (2003) PERB Decision No. 1520 (Contra Costa I);
Contra Costa IL supra, PERB Decision No. 1852; Trustees
of
the California State University
32

(2008) PERB Decision No. 1970-H, adopting proposed dee., in relevant part, at
p.
20), Moberg
has not alleged sufficient facts to suggest that Hartnell refused to re-hire Moberg or that
Hartnell' s agents improperly
_colluded
with other employers to deny Moberg employment or
otherwise to discriminate against him. As such, we affirm the dismissal
of
this allegation.
We therefore conclude that Moberg has sufficiently alleged two adverse actions taken
by Hartnell: his termination from employment and withholding wages for hours already
worked. We next consider whether Moberg has sufficiently alleged participation in EERA-
protected conduct.
2.
	Protected Activity
Moberg' s appeal argues that the Office
of
the General Counsel failed to consider facts
demonstrating his participation in protected activity, including his requests for representation
by Tabera, and his "threat" to file a charge with PERB,
if
Hartnell failed to respect his rights
under EERA. 12
We review each
of
these contentions.
a. 	Moberg's Request for Representation
EERA section 3543 guarantees public school employees the right to ''participate in the
activities
of
employee organizations
of
their own choosing for the purpose
of
representation on
all matters
of
employer-employee relations," while section 3543.1 guarantees employee
organizations the right "to represent their members in their employment relations with public
school employers." (EERA, §§ 3543, subd. (a), 3543.1, subd. (a); Capistrano, supra, PERB
Decision No. 2440, pp. 10-11; Sonoma County Superior Court (2015) PERB Decision
As discussed in the warning letter, Moberg also engaged in protected activity by
filing unfair practice charges against several other public employers. However, as explained
below, we agree with the Office
of
the General Counsel that there is insufficient infonnation to
suggest that Hartnell's decision makers were aware of these charges against other employers at
the time they took adverse action against Moberg, or that they conspired with other employers
or their attorneys because of these charges.
12
.·
33

No. 2409-C (Sonoma), p.
14.)1
3 It is well-settled that an investigative or disciplinary interview
or other meetings called
by
management under unusual circumstances is an "employment
relation" within the scope
of
representation and that the representational rights afforded
employees and employee organizations thus attaches. (Redwoods, supra, 159 Cal.App.3d 617,
624; Robinson
v.
State Personnel Bd. (1979) 97 Cal.App.3d 994, 1001; Civil Service Assn.
v.
City and County
of
San Francisco (1978) 22 Cal.3d 552, 568.) These rights are coterminous, as
there can be no right
of
an employee to representation without an organizational right to
represent. (Sonoma, supra, PERB Decision No. 2409-C, p. 9; North Sacramento, supra, PERB
Decision No. 264, p. 7 .)
However, to promote EERA's purpose
of
"providing a uniform basis for recognizing the
right
of
public school employees .... to
be
represented
by
[employee] organizations in their
professional and employment relationships with public school employers" (EERA, § 3540,
emphasis added), the Legislature has made these rights
of
employees and employee
organizations subject to the principle
of
exclusive representation
by
majority rule. Thus, "once
an employee organization is recognized or certified as the exclusive representative
of
an
appropriate unit ... only that employee organization may represent that unit [
of
employees] in
their employment relations. with the public school employer." (EERA,
§§
3543, subd. (a),
3543.1, subd. (a).)
Moberg' s appeal asserts that the Office
of
the General Counsel improperly concluded
that his "assertion
of
his right to union representation at the meeting with Pyer" was not
protected activity, because, under County
of
Riverside (2009) PERB Decision No. 2090-M and
similar PERB decisional law, "[s]eeking the assistance
of
[a] representative in connection with
13
Although Sonoma is currently under superior court review pursuant to a Petition for
Writ of Mandate under California Code of Civil Procedure, section 1085, the Board is unaware
of any authority prohibiting citation to a Board decision pending review by a superior court.
34

a workplace issue is protected activity." (Appeal, p. 1.) The warning letter states that the
charge included insufficient detail to allow the Board agent to determine whether Moberg's
choice
of
a particular representative was protected.
We
agree that, on the facts alleged,
Moberg has not shown that he requested union representation, as the third amended charge and
supporting materials include no facts to suggest that Moberg's chosen representative, Tabera,
was an officer, representative
or
authorized agent
of
the Association or, indeed
of
any
employee organization.
To the extent EERA section 3543
.1
guarantees Moberg a right to union representation at
the meeting with Pyer, that right was limited to representation by the Association, the exclusive
representative
of
adjunct faculty employed
by
Hartnell. Except for Moberg' s conclusory
assertion that
he
requested union representation,
he
has alleged no facts to suggest that Tabera
was an officer
or
representative
of
the Association or otherwise had any authority to act
on
its
behalf. To the contrary, the third amended charge alleges that Pyer insisted that she would
choose Mo
berg's
representative for him "but from a union to which Moberg did not belong,"
which we interpret as an admission that Tabera was not authorized to act on behalf
of
the
Association. (Emphasis added.) Because Moberg has not alleged that Tabera was an officer,
representative or agent
of
the Association, Moberg had not sufficiently alleged that he exercised
an BERA-protected right to union representation
by
requesting Tabera's presence for the meeting
called
by
Pyer. 14
Additionally, while the charge and supporting materials do not identify Tabera as an
officer, representative or agent
of
another employee organization, to the extent that is the case, he
could not act in that capacity to provide "union" representation to Moberg without violating the
principle
of
exclusive representation by majority rule set forth in EERA section 3543.1,
subdivision (b). (Mount Diablo Unified School District, et al. (1977) EERB Decision No. 44
(Mt. Diablo), pp. 8-9; Chaffey Joint Union High School District (1982) PERB Decision No. 202,
pp. 6-7.)
14
35

For the same reason, we reject Moberg's contention that he had a protected right to
representation
by
Tabera under EERA section 3 543
's
guarantee
of
employee rights "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." 	Notwithstanding
differences in the statutory language, California courts and PERB have long held that this
language includes rights similar to those afforded private-sector employees under section 7
of
the NLRA. 	(McPherson, supra, 189 Cal.App.3d 293, 308-309; Redwoods Community
College District (1983) PERB Decision No. 293, p. 6, affd. 159 Cal.App.3d 617, 623-624;
Modesto City Schools (1983) PERB Decision No. 291 (Modesto), pp. 61-62; Jurupa, supra,
PERB Decision No. 2283, p. 28.) As the Board explained in Modesto:
15
The only difference
...
between the right to engage in concerted
action for mutual aid and protection and the right to form, join and
participate in the activities
of
an employee organization is that
EERA uses plainer and more universally understood language to
clearly and directly authorize employee participation in collective
actions traditionally related to the bargaining process.
(Modesto, supra, at p. 62.)
Thus, EERA generally guarantees public school employees the right to act in concert
with other employees for the purpose
of
bargaining collectively or for providing mutual aid or
protection to one another. This right is not limited to acting in concert with employees in the
same bargaining unit or employees
of
the same employer. (McPherson, supra, 189 Cal.App.3d
293, 305-311; Regents
of
the University
of
California (2004) PERB Decision No. 1638-H, p. 4;
Section 7
of
the NLRA provides in relevant part: "Employees shall have the right
to self-organization, to form, join, or assist labor organizations, to bargain collectively
through representatives pf their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection." Section 8,
subdivision (a)(l) makes it an unfair labor practice for an employer "to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in section 7."
15
36

Oxnard Harbor District (2004) PERB Decision No. 1580-M, pp. 9-10; see also Fresno County
IHSS Public Authority, supra, PERB Decision No. 2418-M, pp. 24-37, esp. 32.) It may even
protect acting
in
concert with persons who are not currently or have never been employed
by
the public school employer charged with violating employee rights. (Contra Costa L supra,
PERB Decision No. 1520; Contra Costa
IL
supra, PERB Decision No. 1852; Trustees
of
the
California State University, supra, PERB Decision No. 1970-H, adopting proposed dee. at
p.
20.)16
However, like the rights
of
employee organizations, where a majority
of
employees has
chosen a representative, EERA expressly limits the rights
of
all unit employees, including their
rights to self-representation and to act in concert with others, to further the statutory scheme
of
collective bargaining through exclusive representation, "which is the cornerstone
of
the Act."
(Lake Elsinore School District (1986) PERB Decision No. 563, p. 4; see also Clovis Unified
School District (2002) PERB Decision No. 1504, pp. 22-25.) Even with respect to grievances,
where the Legislature has carved out an exception to the principle
of
exclusive representation,
by
allowing public school employees to present grievances to their employer and to have such
EERA section 3543.5, subdivision (a), 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." In 1989, the
Legislature amended the statute to state that, for the purposes
of
this subdivision, the term
"employee" includes "an applicant for employment or reemployment." (SB 342, Craven, 1989
Cal. Legis. Serv. 313 (West).) In doing so, the Legislature overruled PERB decisional law to
the contrary and codified the view previously expressed by Member Craib. (Hacienda
La Puente Unified School District (1989) PERB Decision No. 741, p. 4, Member Craib,
dissenting opinion; Los Angeles Unified School District (1988) PERB Decision No. 686, p. 3,
Member Craib, concurring opinion; and Hacienda La Puente Unified School District (1988)
PERB Decision No. 685, pp. 24-41, Member Craib concurring and dissenting opinion.)
16
37

grievances adjusted without the intervention
of
the exclusive representative,
17
PERB has
determined that, to the extent employees retain a right to present grievances individually to
the employer, this "right" is qualified and limited
by
the overriding statutory purposes served
by
exclusive representation through majority rule. (Chaffey, supra, PERB Decision No. 202,
pp. 6-7; Mt. Diablo, supra, EERB Decision No. 44, pp. 8-9.) Like other exceptions, this right
is to
be
construed narrowly.
Although PERB generally follows federal precedent regarding the scope
of
employee
rights (McPherson, supra, 189 Cal.App.3d 293,310), where, as here, the Legislature has
expressly provided for broader or different rights or employee organizations to serve other
purposes, we are not free to disregard rights expressly provided by the statute as mere
surplusage. (Capistrano, supra, PERB Decision No. 2440, pp. 14-15; Redwoods, supra,
159 Cal.App.3d 617, 623.) In the absence
of
some indication by the Legislature, we decline to
extend the specific and narrowly defined exception to exclusive representation with respect to
employee grievances to the different context and circumstances implicated by investigative or
disciplinary interviews called by the employer. (Sonoma, supra, PERB Decision No. 2409-C,
pp. 13-14.)
b. 	Moberg's Threat to File a Board Charge
We next consider Moberg's alleged threat to file a Board charge
if
Hartnell failed to
respect his rights under EERA. As the Office
of
the General Counsel observed, filing an unfair
17
EERA section 3543, subdivision (b), provides that an employee may at any time
present grievances to his or her employer, and have those grievances adjusted, without the
intervention
of
the exclusive representative, as long as the adjustment is reached prior to
arbitration pursuant to sections 3548.5, 3548.6, 3548.7, and 3548.8 and the adjustment is not
inconsistent with the terms
of
a written agreement then in effect, provided that the public
school employer shall not agree to a resolution
of
the grievance until the exclusive
representative has received a copy of the grievance and the proposed resolution and has been
given the opportunity to file a response.
38

practice charge or otherwise participating in PERB's unfair practice resolution process is
protected activity, regardless
of
the merits
of
the charge. (Coachella Valley Unified School
District (2013) PERB Decision No. 2342 (Coachella Valley), p. 13.) A statement ofintention to
pursue legal remedies, such as a threat to "seek the legal assistance
of
the Union," is also
protected. (California State Employees Association (Hutchinson) (1999) PERB Decision
No. 1355-S, adopting warning letter at pp. 4, 6; State
of
California (Department
of
Corrections)
(2001) PERB Decision No. 1435-S (State
of
CA
(CDC)), adopting proposed dee. at pp. 25-27,
34-35.) An employee's threat to engage in protected conduct is thus protected, so long as it is
made in good faith and not an abuse
of
process. (NLRB
v.
City Disposal Systems, Inc. (1984)
465 U.S. 822, 837 [individual employee's reasonable, good-faith assertion
of
a collectively-
bargained right is an extension
of
the concerted action that produced the agreement and therefore
affects the rights
of
other employees]; see also Willits Unified School District (1991) PERB
Decision No. 912, pp. 2-3, adopting proposed dee. at p. 27, fn. 22; and Los Rios College
Federation
of
Teachers, Local 2279 (Deglow) (2003) PERB Decision No. 1515, p. 4.)
We disagree with the implication
of
the warning letter that a threat to file an unfair
practice charge is only protected
if
"authorized"
or
meritorious. In the case relied on
by
the
Office
of
the General Counsel, the Board went to considerable lengths to distinguish the facts
of
that case, in which an individual employee filed a unit modification petition with PERB, from
the filing
of
an unfair practice charge:
The conduct at issue here is to be distinguished from the situation
where an individual employee files an unfair practice charge with
PERB, which filing is an expressly granted right pursuant to EERA
section 3541.S(a). Where an individual exercises a statutory right,
such as in the case
of
filing an unfair practice charge, the merit (or
lack thereof)
of
the charge is immaterial to a determination
of
the
status
of
the conduct. In other words, the conduct is protected even
if
the charge is found to be meritless.
(CSEA (Petrich), supra, PERB Decision No. 767, p. 3.)
39

Thus, unlike the unit modification petition considered
in
CSEA (Petrich), the
Board's
discussion
of
filing unfair practice charges makes no distinction between charges that are
meritless for lack
of
standing, lack
of
jurisdiction, untimeliness, failure to state a prima facie
case,
or
any
of
the other possible reasons for rejecting a charge.
	Ih
North Sacramento, supra,
PERB Decision No. 264, the Board reasoned:
An
employee's attempt to assert rights established
by
the terms
of
a negotiated agreement clearly constitutes ''participation" in the
activities
of
an employee organization and is, therefore, expressly
protected
by
section 3543
of
the Act. Were this not the case, an
employer could freely retaliate against employees because
of
their
assertion
of
contractual rights, thereby effectively undermining the
collective negotiation process.
North Sacramento, supra, at p. 6; see also Interboro Contractors, Inc. (1966) 157 NLRB 1295,
1298-1299, enforced (2d Cir. 1967) 388 F.2d 495; and NLRB
v.
City Disposal Systems, supra,
465 U.S. 822, 829-837;
El
Gran Combo de Puerto Rico
v.
NLRB (1st
Cir
1988) 853 F.2d 996,
1002.) Although North Sacramento involved contractual rights under a collectively-bargained
agreement, the assertion
of
statutory rights, including participation in the Board's unfair practice
process, is certainly no less protected. (Golden Gate Bridge Highway & Transportation District
(2011) PERB Decision No. 2209-M, adopting warning letter at p. 5; Coachella Valley, supra,
PERB Decision No. 2342, p. 13.) The Board's position on this matter is premised on the view that,
to ensure the policies
ofEERA
and other PERE-administered statutes are effectuated, employees
must be able to participate in the Board's administrative process without fear ofreprisal.
(Filmation Associates, Inc. (1977) 227 NLRB 1721.) To protect the integrity
of
that process and
guard against any chilling effect on employees, we reaffirm that EERA protects not only filing a
charge or appearing as a witness in PERB proceedings, but also "threatening" to do so.
40

Here, Moberg has alleged that he asserted a right to representation at an upcoming
meeting with management. Although the facts included in the charge and supporting materials
provide little information about his email exchanges with Pyer and Lewallen, nothing in his
charge
or
the appeal suggests that his threat to file a PERB charge was not made in good faith.
· Because use
of
the Board's unfair practice process is itself protected, Moberg has alleged
sufficient facts to establish that his threat to file a PERB charge was protected, regardless
of
the
merits
of
his allegations.
3;
	Employer Knowledge
PERB precedent requires actual
or
imputed knowledge
of
the charging party's protected
activity by those agents
of
the employer who decided
to
take adverse action. (Santa Clara
Valley Water District, supra, PERB Decision No. 2349-M, pp. 34-37.) The term knowledge is
not limited by what is factually correct. Even when an employer is mistaken in believing an
employee has engaged
in
union activity, a violation
ofEERA
occurs,
if
the employee is
discriminated against because
of
the employer's belief he or she engaged in protected activity.
(Simi Valley Unified School District (2004) PERB Decision No. 1714, p. 9; McPherson, supra,
189 Cal.App.3d 293, 310.) Unlawful animus may also be imputed to high management officials
where, even innocently, they rely on inaccurate or biased information from lower-level personnel
acting with a discriminatory motive. (State
of
CA (CDC), supra, PERB Decision No. 1435-S,
adopting proposed dee. at p. 32; Jurupa, supra, PERB Decision No. 2283, p. 29; City
of
Modesto
(2008) PERB Decision No. 1994-M, p. 12; Jurupa Community Services District (2007) PERB
Decision No. 1920-M; Cupertino UnionElementary School District (1986) PERB Decision
No. 572, pp. 3-4.)
41

As Hartnell's Associate Vice President for Human.Resources and Equal Employment
Opportunity, Pyer was not a lower-level supervisor with no input into the decision to terminate
Moberg. (See, e.g., Regents
of
the University
of
California (1998) PERB Decision No. 1263-H,
proposed dee. at p. 45; c£ Regents
of
the University
of
California (Los Angeles) (2008) PERB
Decision No. 1995-H, p. 2; see also Santa Ana Unified School District (2013) PERB Decision
No. 2332, p.
11
(Santa Ana), fn. 8; and Trustees
of
CSU, supra, PERB Decision No. 2384-H,
p. 41.)
By
virtue
of
her position and responsibilities, and her involvement in investigating the
various complaints against Moberg and.her follow-up memorandum
of
October 2, 2012.
informing Hartnell's President
of
Moberg's termination, it appears that the charge and Hartnell's
position statements include sufficient information to demonstrate that, even
if
Pyer was not the
sole or ultimate decision-maker, she had at least some input into and/or authority to effectively
recommend Moberg's termination.
Because Moberg alleges that he made his threat to file an unfair practice charge directly
to Pyer, a high-ranking human resources official, we conclude that
he
has sufficiently alleged
that his participation in BERA-protected conduct occurred with the requisite knowledge
of
a
decision-maker acting on behalf
of
Hartnell. (Sacramento City, supra, PERB Decision No.
2129, pp. 4, 7; cf. County
of
San Diego, supra, PERB Decision No. 2258-M, adopting warning
letter at pp. 2-3.)
4. 	Allegations Supporting Inference
of
Unlawful Motive
As discussed above, Moberg has sufficiently alleged that Hartnell took adverse actions
against him, including terminating his employment and withholding wages earned. He has also
alleged that, with Hartnell's knowledge, he exercised protected rights on September 12, 2012,
when he advised Pyer and Lewallen that he would file a PERB charge,
if
Hartnell would not
42

respect Moberg's rights under EERA. We next consider his allegations that Hartnell took the
above adverse actions because ofMoberg's protected activity.
a. 	Close Temporal Proximity
Moberg has sufficiently alleged that his employment with Hartnell was terminated on
September 24, 2012, and that, beginning in October 2012 and continuing thereafter, Hartnell
withheld from Moberg wages for time worked before his termination. The above factual
allegations establish close temporal proximity, and thus "highly suspicious" timing, between
·Moberg's alleged participation in protected conduct
on:
September 12, 2012, and Hartnell's
adverse actions against him. (Jurupa, supra, PERB Decision No. 2283, pp. 22, 23.) In addition
to highly suspicious timing, Moberg' s appeal asserts that several other "nexus" factors
recognized
by
PERB were sufficiently alleged in the third amended charge but ignored,
misinterpreted or improperly rejected by the Office
of
the General Counsel. We examine each
of
these contentions.
b. 	Whether Moberg Has Sufficiently Alleged that Hartnell Offered an After-the-Fact
Justification for Its Actions.
Related to the issue
of
timing are the circumstances surrounding Pyer's October 2, 2012
memorandum to Lewallen which summarizes various allegations that Moberg had falsified
information about his credentials and qualifications and did not meet the qualifications for his
position. Because Pyer's memo post-dates Moberg's termination by almost three weeks, and
because Hartnell's position statement does not disclose when Pyer became aware o,fMoberg's
alleged misconduct, it is unclear even whether it was part ofHartnell's decision to terminate
Moberg' s employment. According to the warning letter,
"It
appears these reasons were not used
as a basis for the termination, and that much of this information was discovered as a result of an
43

investigation [Hartnell] conducted in connection with the termination," i.e., after Moberg's
termination. No explanation is offered
by
Hartnell why it was necessary to conduct an
investigation after Moberg had already been terminated.
As discussed
in
the warning and dismissal letters, Moberg was hired as adjunct faculty, a
temporary position subject to at-will employment. No reason was necessary for his termination
and none was offered in the September 24, 2012 letter advising Moberg
of
his termination.
Hartnell's position statement denies even that it was necessary for its governing board to ratify
Moberg's termination. However, during the investigation
of
this charge, Hartnell's position
changed from "adamantly and specifically'' denying that Moberg was a probationary employee
or that he was ever assigned more than 67 percent
of
a full-time teaching load, to instead
asserting only that he was hired as an adjunct faculty member generally assigned to perform
non-tenure track work at 67 percent or less
of
a full-time assignment. An employer's shifting or
after-the-fact justifications for adverse action suggest that the reasons offered are pretextual and
may therefore support an inference
of
unlawful motive. (State
of
CA (Parks & Recreation),
supra, PERB Decision No. 328-S, pp. 14-15; San Diego Community College District (1983)
PERB Decision No. 368, p. 21.) Moreover, any legitimate, non-discriminatory reason for
terminating Moberg would have already been known to Pyer as
of
September 24, 2012.
Subsequent investigation was, by definition, for another purpose, since Moberg was no longer
employed at Hartnell. Hartnell's efforts to discover and provide a legitimate, non-
discriminatory reason for Moberg's termination after he was already terminated provide at
least some support for inferring nexus. (Chula Vista, supra, PERB Decision No. 2221, p. 19.)
44

c.
	Whether Moberg Has Sufficiently Alleged that Hartnell Departed from Established
Procedures
by
Denying Moberg Notice and Other Procedural Protections Afforded
Probationary Faculty under the Education Code
The appeal argues that the Office
of
the General Counsel misinterpreted provisions
of
the Education Code and applicable decisional law. 	According to Moberg, his prior service at
Hartnell entitled him to probationary or contract, rather than at will status and Hartnell
therefore departed from established procedures by dismissing Moberg without notice and a
pre-termination hearing. (Balen
v.
Peralta Junior College Dist. (1974)
11
Cal.3d 821, 826.)
Moberg also argues that Hartnell departed from established procedure
by
terminating his
employment without obtaining prior approval from Hartnell's governing board and that the
dismissal letter ignored the Tabera Declaration and improperly credited Hartnell's "after the
fact" justification for Moberg's termination. According to Moberg, an employer's attempt to
legitimize its decision after it has already taken adverse action against an employee constitutes
a separate and additional factor showing "nexus" or unlawful motive. (Sacramento City,
supra, PERB Decision No. 2129.) Because each
of
these contentions turns on interpretation
of
the Education Code, we discuss them together.
(
As a threshold matter, we agree with the Office
of
the General Counsel that Moberg has
not alleged sufficient facts to demonstrate that he was entitled to probationary or contract
status. 	Under the Education Code, a community college district must classify its academic
employees as "regular," "contract" or "temporary." (Ed. Code, § 87604.) A "regular" employee
is one who has achieved tenure. "Contract" status, sometimes also referred to as "probationary"
18
While PERB has no authority to enforce or order remedies for violations of the
Education Code, we may interpret its provisions where necessary to administer BERA or to
harmonize the Education Code's provisions with BERA. (San Mateo City School Dist. v.
Public Employment Relations Bd. (1983) 33 Cal.3d 850, 865; Santa Ana USD, supra, PERB
Decision No. 2332, p. 13; Coachella Valley, supra, PERB Decision No. 2342, pp. 12-13.)
18
45

status, is the first step toward tenure. According to the Education Code, a "temporary" employee
is one employed to teach adult or community college classes for not more than 67 percent
of
the
hours per week considered a full-time assignment for regular employees having comparable
duties. (Ed. Code, § 87482.5.) Contract employees also enjoy some procedural protections
against summary dismissal from employment, including notice and a pre-termination hearing.
(Ed. Code, § 87 671.) 19
By
contrast, temporary employees are "at will." The governing board
may terminate the employment
of
a temporary employee at its discretion at the end
of
a day or
week, as it deems appropriate and the decision to terminate employment is not subject to judicial
review except as to the time
of
termination. (Ed. Code,§ 87665.)
Although adjunct faculty members at Hartnell are hired as temporary employees, the
Education Code mandates conversion from temporary to contract status under certain
circumstances. For example, subject to certain exceptions, which are not at issue here, a
community college district may not employ a temporary employee for more than two semesters
19
Education Code section 87671 provides:
A contract or regular employee may be dismissed or penalized
if
one or
more
of
the grounds [for misconduct] set forth in Section 87732 are
present and the following are satisfied:
(a) The employee has been evaluated in accordance with standards and
procedures established in accordance with the provisions
of
this article.
(b) The district governing board has received all statements
of
evaluation which considered the events for which dismissal or penalties
may be imposed.
(c) The district governing board has received recommendations
of
the
superintendent
of
the district and,
if
the employee is working for a
community college, the recommendations
of
the president of that
community college.
(d) The district governing board has considered the statements of
evaluation and the recommendations in a lawful meeting of the board.
46

or three quarters within any period
of
three consecutive years. (Ed. Code,§ 87482.)
Additionally,
if
a community college district fails to provide an academic employee with a
written statement at the beginning
of
each academic year indicating that the employee is
temporary, the employee shall be deemed to be a contract employee, unless already employed
as
a regular employee. (Ed. Code,§ 87477.) Although Moberg cites this section
of
the Education
Code in his appeal, the third amended charge does not allege that Hartnell failed to provide
Moberg with a written statement indicating that his employment status was "temporary." He has
therefore not alleged sufficient facts to demonstrate that Hartnell departed from established
procedures under Education Code section 87477.
Moberg's appeal also argues that he has taught community college classes for more than
67 percent
of
the hours per week considered a full-time assignment for regular employees
having comparable duties, and that he was therefore entitled to contract status, pursuant to
Education Code section 87482.5, subdivision (a). The information in the third amended charge
and supporting materials sufficiently alleged that Moberg worked in excess
of
67 percent
of
a
full teaching load during the 2011-2012 academic year, that is, for two consecutive semesters.
However, the charge and supporting materials do not sufficiently allege that Moberg continued
to work in excess
of
67 percent
of
a full teaching load "for more than two semesters," as required
by the Education Code. We therefore agree with the Office
of
the General Counsel that Moberg
has not alleged sufficient facts to demonstrate that he was entitled to probationary status, by
operation
of
the Education Code, or, consequently, that Hartnell departed from established
procedure or law by dismissing Moberg in accordance with the requirements of a temporary
employee. As noted in the dismissal letter, Moberg alleged only that he was "offered" additional
work, but did not specify the relevant time period
of
this offer or how much "additional" work
47

was offered, nor did
he
allege that he accepted the offer, so that it was unclear whether
he
began
working the ·fall 2012 semester at more than .67 FTE.
Apart from whether Moberg was a temporary employee whose employment was subject
to termination "at will," his appeal raises the separate question
of
who within Hartnell had the
authority to terminate his employment. Moberg contends that Hartnell's governing board may
not properly delegate this power and that Hartnell therefore departed from established
procedures by terminating his employment at the end
of
the day on September 24, 2012
without prior approval
by
the governing board.
	We
reject this argument as well.
As a general rule, Moberg is correct that, the "powers conferred upon public agencies
and officers which involve the exercise
of
judgment or discretion are in the nature
of
public
trusts and cannot
be
surrendered or delegated to subordinates in the absence
of
statutory
authorization." (California Sch. Employees Assn.
v.
Personnel Commission (1970) 3 Cal.3d 139,
144 (CSEA
v.
Personnel Commission).) Moreover, "[ u ]nder normal circumstances and absent
statutory provisions to the contrary the dismissal
of
employees involves the exercise
of
judgment
or discretion." (Ibid.; cf. American Federation
of
Teachers
v.
Board
of
Education (1980)
107 Cal.App.3d 829, 834 [governing board may delegate to subordinates ministerial acts such as
acceptance
of
employee resignation].) Although the Education Code expressly grants a
community college district's governing board discretion to terminate a temporary employee at
the end
of
a day or week, as the board deems appropriate (Ed. Code,§ 87665), as the Supreme
Court has observed, the Education Code does not expressly authorize a governing board to
delegate to subordinates the power to suspend, demote or dismiss employees. ( CSEA
v.
Personnel Commission, supra, at p. 145.) By contrast, the Government Code section pertaining
to the dismissal of state civil service employees vests the authority to dismiss in the appointing
power, "or any person authorized by him ...." (Id. at p. 145, fu. 3, emphasis added.)
48

However, an agency's delegation
of
authority is lawful
if
"there has been no 'total
abdication'
of
... authority." (Taylor
v.
Crane (1979) 24 Cal.3d 442, 452.) Moreover, under
California law, ratification by a governing board serves as "the equivalent
of
prior authorization"
(Mott
v.
Horstmann (1950) 36 Cal.2d 388, 392), so that, even
if
the initial delegation
of
authority was unlawful, "an agency's subsequent approval or ratification
of
an act delegated to a
subordinate validates the act, which becomes the act
of
the agency itself." (Southern California
Edison Company
v.
Public Utilities Commission (2014) 227 Cal.App.4th 172, 195, as modified
(June 18, 2014), citing CSEA
v.
Personnel Commission, supra, 3 Cal.3d 139, 145.) We therefore
reject Moberg's contention that his summary dismissal constituted a departure from established
procedures because, without prior approval by Hartnell' s governing body, it was unlawful.
Regardless
of
whether Hartnell's summary dismissal
of
Moberg violated the Education
Code, the third amended charge also alleged that it was a departure from Hartnell's own
. established practice. The pertinent information in support
of
this allegation appears in the
Tabera Declaration, which, according to Moberg's appeal, the Office
of
the General Counsel
improperly ignored. Although the dismissal letter makes no reference to the Tabera Declaration,
we agree with the implicit determination
of
the Office
of
the General Counsel that the third
amended charge and Tab era Declaration do not include sufficient ·facts to demonstrate that
Hartnell has an established practice
of
obtaining prior approval from Hartnell's governing body
before dismissing temporary employees, or that Hartnell violated such a practice in this instance.
The declaration identifies Tabera as having worked "as both a staff and faculty member
at Hartnell College since the 1980s." According to the declaration, Tabera "currently serve[s] as
[a] faculty member at San: Jose State University." (Emphasis added.) The implication is that
Tabera no longer works for Hartnell though the declaration includes no facts to indicate when
Tabera's employment with Hartnell ended. Thus, while the declaration states that Hartnell has
49

an established practice
of
obtaining prior governing board approval
"of
even temporary
employees," that Tabera "was shocked to learn that Professor Moberg was terminated in the
middle
of
the semester
...
without approval
of
the governing board," and that "Hartnell has never
violated [sic] any
of
the above practices
...
as long as I have been employed here," absent
additional information about Tabera's employment with Hartnell, including when
he
ceased
working for Hartnell, the declaration does not establish that Tabera has personal knowledge
of
Hartnell's employment practices at any time relevant to the present dispute.
Because it is unsupported
by
the statement
of
the charge and accompanying materials, the
allegation that Hartnell departed from an established practice
of
securing prior approval
by
its
governing body before dismissing temporary employees is too conclusory to support a prima
facie case
of
discrimination. ( Oakland Unified School District (2003) PERB Decision
No. 1512, p. 3; Alum Rock Education Association, CTA/NEA (Kirkaldie) (1995) PERB
Decision No. 1118, adopting warning letter at p. 11.)
d. 	Whether Moberg Has Sufficiently Alleged Employer Hostility to Protected Activity or
Other Facts That Might Demonstrate Unlawful Motive
Employer hostility to the exercise
of
protected rights, including allegations
of
separate
unfair practices by the same employer, may suggest unlawful motive in support
of
a
discrimination allegation. (City
of
Oakland, supra, PERB Decision No. 2387-M, pp. 28-31;
Jurupa, supra, PERB Decision No. 2283, pp. 9-10, 26, 28-29; Rainbow, supra, PERB Decision
No. 1676-M, p. 1.) Whether analyzed as a departure from established procedures, under the
catch-all nexus factor ("other relevant facts" tending to show animus), or as direct evidence
of
hostility to protected rights, a manager's statement to an employee discouraging the exercise
of
protected rights is probative evidence that the employer acted with an unlawful motive, intent or
50

purpose when later disciplining or discharging the employee. (Coast, supra, PERB Decision
No. 1560, adopting proposed dee. at pp. 42-43.) As explained below, because Moberg has
alleged sufficient facts to state a separate prima facie case
of
interference with protected
rights, those factual allegations also support an inference
of
nexus
in
support
ofMoberg's
discrimination allegation.
Because Moberg has also alleged suspicious timing, both as to the adverse actions
taken against him and as to Hartnell's after-the-fact investigation
of
Moberg, we conclude
that he has stated a prima facie case
of
unlawful discrimination.
D. 	Moberg's Interference Allegation
In response to section 6.b
of
PERB's charge form, which asks the charging party to
identify the specific provision(s)
oflaw
alleged to have been violated, Moberg's original charge
form states two separate theories ofliability: "Government Code section 3543(a) interference"
and "Government Code section 3543.5 retaliation." 	Paragraph 9
of
the narrative statement
filed with the original charge recounted the events leading up to September 10, 2012, and alleged
that, on that date, Pyer responded to Moberg' s previous email message "by insisting that she
would chose [sic] Moberg?s [sic] representative for him but from a union to which Moberg did
not belong."
20
As indicated above, BERA section 3543, subdivision (a) sets forth the substantive
rights
of
employees, including the right to participate in the activities
of
employee
organizations, while section 3543.5, subdivision (a), makes it unlawful for a public school
employer to interfere with the exercise
of
these rights or to discriminate against employees
because
of
their exercise
of
these rights. Pursuant to PERB precedent, we disregard
discrepancies or omissions in the specific provisions
of
BERA cited and focus instead on the
substantive theories identified by the charging party's factual allegations, which, in this case,
include both discrimination and interference. (Los Banos Unified School District (2007) PERB
Decision No. 1935 (Los Banos), adopting warning letter at p. 2, citing Los Angeles County Office
of
Education (1999) PERB Decision No. 1360; Sacramento Municipal Utility District (2006)
PERB Decision No. 1838-M, p. 1, fn. 2.)
20
51

Moberg's first amended charge identified the same provisions
of
law alleged to have
been violated as had been listed on the original charge form, including:'inference (Government
Code section 3543(a))." In addition, the first amended charge included a more detailed narrative
statement
of
the charge. Under the heading "Issues Presented," Moberg asks: "Did Hartnell
interfere with Moberg's right to chose [sic] his own representation?" The narrative statement
of
the first amended charge alleges substantially the same chronology
of
events as those previously
. alleged, including Moberg's allegation that, on September 10, 2012, Pyer insisted "that she
would chose [sic] Moberg?s [sic] representative for him but from a union to which
he
did not
belong." Under the heading "Argument," paragraph 4
of
the statement asserts that "Hartnell
provides no documents supporting its position that 'Tabera is not a representative'
of
Moberg"
and that, "PERB, therefore, should disregard this claim
by
Hartnell as false and irrelevant." The
first amended charge reiterates Moberg's factual allegations about Pyer's statement as examples
of
adverse action and disparate treatment in support
of
Moberg's discrimination analysis.
However, among the "Remedies Sought," by the first amended charge is item number
5:
"A
cease and desist order prohibiting Hartnell from interfering with Moberg's right to choose his
own representative."
The second and third amended charges dispensed with PERB's unfair practice charge
form, so there is no response to section 6.b
of
the form requesting that the charging party identify
the specific statutory provisions alleged to have been violated. However, like the first amended
charge, the second and third amended charges begin by fully incorporating the original and each
subsequent version
of
the charge. The statement of"Issues Presented" in the second and third
amended charges again asks "Did Hartnell interfere with Moberg's right to chose [sic] his own
representation?" and includes the same or substantially the same narrative account of events
52

leading up to the September 10, 2012 statement previously attributed to Pyer. Both the second
and third amended charges repeat item number 5 in the list of"Remedies Sought," i.e., "A cease
and desist order prohibiting Hartnell from interfering with Moberg's right to choose his
representative." For good measure, the third amended charge also alleges that, by insisting that
she, not Moberg, would decide who would serve as Moberg's representative, Pyer's statement
"would reasonably tend to discourage participation in protected activity and thereby interfere
with the rights
of
employees and/or employee organizations."
In light
of
the above, we agree with the appeal that the original charge and each
of
its
amended versions, includes sufficient information to put the Office
of
the General Counsel on
notice
of
his interference allegation and that the Office
of
the General Counsel erred in not
addressing this allegation. A Board agent assigned to investigate an unfair practice charge has
the duty to assist the charging party to state in proper form the categories
of
information required
by PERB to process the charge. These include, among other things, a "clear and concise
statement
of
the facts and conduct alleged to constitute an unfair practice," a "statement
of
the
remedy sought by the charging party," and the section
of
the statute, regulation, rule alleged to
have been violated. (PERB Regs. 32620, subd. (b)(l), 32615, subds. (a)(4), (5) and (6).) Under
the fact pleading standard followed by PERB, the charging party's primary responsibility is to
provide the facts necessary to support the charge. (National Union
of
Healthcare Workers
(2012) PERB Decision No. 2249-M, pp. 14-15.) The charging party is not required to provide
legal authority or identify the legal theory or theories
of
the case. ( City
of
San Jose (2013) PERB
Decision No. 2341-M, p. 46, citing County
of
Inyo (2005) PERB Decision No. 1783-M, p. 2.)
Where the charge cites an incorrect statute, an incorrect provision
of
the statute, or no statutory
53

provision at all, the investigating Board agent will supply the relevant provisions
oflaw.
(Los Banos, supra, PERB Decision No. 1935, adopting warning letter at p. 2, citing Los Angeles
County Office
of
Education, supra, PERB Decision No. 1360; Sacramento Municipal Utility
District, supra, PERB Decision No. 1838-M, p. 1, fn. 2.) 	Additionally, "[w]here the same
employer conduct concurrently violates more than one unfair practice provision, it is the duty
of
the Board to find more than one violation." (State
of
California (Department
of
Corrections &
Rehabilitation) (2012) PERB Decision No. 2282-S, p. 15.)
While Moberg's charge and its various amendments were not always "concise,"
we
think
they were more than adequate to place Hartnell and the Office
of
the General on notice
of
his
inference allegation. Hartnell's various position statements confirm that it clearly understood the
nature
ofMoberg's
allegation. Although Hartnell denied that the meeting called
by
Pyer was
"investigative" in nature, its position statement discusses the federal Weingarten 	doctrine and
PERB decisional law on the representational rights
of
employees and employee organizations in
investigative meetings in an effort to show that Hartnell had not interfered with Moberg's right
to representation because, under the circumstances, Moberg had no right to representation.
Although it provided no supporting documentation, Hartnell also claimed to have forwarded
Pyer's email correspondence to the Association, ostensibly to advise it
of
Mo berg's request for
representation. Moberg's original charge and each
of
its various amendments not only satisfied
PERB' s fact pleading standard, they also included .more than enough information to identify the
nature
of
his interference allegation. Although a charging party is entitled to an investigation
of
all charge allegations and a warning letter identifying any deficiencies in the charge before it is
21
21
NLRB v. Weingarten, Inc. (1975) 420 U.S. 251 (Weingarten).
54

dismissed (PERB Reg. 32620, subd. (d); County
of
San Joaquin, supra, PERB Decision
··
No. 1570-M, p.
8;
County
of
Alameda, supra, PERB Decision No. 1824-M, pp. 4-5), it is
unnecessary to remand this issue for further investigation, because the charge and supporting
documents already contain sufficient information to state a prima facie case
of
employer
interference with protected employee rights. (Trustees
of
CSU, supra, PERB Decision
No. 2384-H, pp. 4-5.)
The third amended charge alleged that, after Moberg exchanged words with another
employee about a personal property item missing from Moberg's desk, Pyer launched an
investigation into the coworker's complaint against Moberg. As part
of
that investigation, in
late August and early September 2012, Pyer contacted Moberg via email to schedule a
meeting. In response, on or about August 29, 2012, Moberg offered to meet with Pyer on
September 3, 4, or 5, 2012,
if
accompanied
by
Tabera as Moberg's representative. Moberg
alleges that Pyer did not respond until more than a week later, and Hartnell has neither alleged
nor provided any information to suggest that scheduling the meeting was urgent or that it
advised Moberg
as
much. To the contrary, Hartnell's position statement denied even that the
meeting was "investigative" in nature and asserted that Moberg could not reasonably have
believed that it might result in discipline. 	On September 7, Pyer, through her assistant, again
contacted Moberg to suggest scheduling the meeting for September 10 or 14, 2012. Moberg
responded that Tabera was on jury duty and therefore unavailable on the requested dates, but
that Moberg and Tabera were available to meet the following week. According to the third
amended charge, in a September 10, 2012 email message, Pyer insisted that she, not Moberg,
would decide who would serve as Moberg's representative at the meeting.
55

BERA' s statutory scheme protects both the employees' choice
of
a representative and
their representative's designation
of
its agents from employer interference. (McPherson, supra,
189 Cal.App.3d 293, 312; Westminster School District (1982) PERB Decision No. 277, p. 7;
State
of
California (Department
of
Personnel Administration) (1998) PERB Decision No.
1305-S, pp. 7-8; Jurupa, supra, PERB Decision No. 2283, p. 30; see also City
of
Monterey
(2005) PERB Decision No. 1766-M; and Smith's Food & Drug Centers, Inc. (Dec. 16, 2014)
361 NLRB No. 140.) Where there is no exclusive representative or, in the limited
circumstances in which employees may self-represent or present grievances through an
alternative representative (see Mt. Diablo, supra, EERB Decision No. 44), the choice
of
a
representative belongs to the employees,
and
not the employer. Where a majority
of
unit
employees has chosen a representative, unit employees are no longer free to negotiate their
terms and conditions
of
employment directly with the employer nor to demand representation
on matters within the scope
of
representation by anyone other than the exclusive
representative. In either event, the employer has no role in deciding or influencing matters
of
employee choice or the administration
of
an employee organization's internal affairs.
(San Ramon Valley Unified School District (1982) PERB Decision No. 230 (San Ramon),
p. 16; Fresno Unified School District (1982) PERB Decision No. 208, pp. 21-22; Trustees
of
CSU, supra, PERB Decision No. 2384-H, p. 33; see also NLRB
v.
Wooster Division
of
BorgWarner Corporation (1958) 356 U.S. 342.)2 2 Consequently, employer statements that
Only where persuasive evidence establishes a clear and present danger to the
bargaining process may the employer object to the presence
of
an individual serving as the
union's representative. (BERA, § 3543.4; Fitzsimons Mfg. Co. (1980) 251 NLRB 375, enf'd.
(6th Cir. 1982) 670 F.2d 663; see also Gov. Code,§ 3580.5, subds. (a)-(d); Trustees
of
CSU,
supra, PERB Decision No. 2384-H, p. 33; State
of
California, Department
of
Health (1979)
PERB Decision No. 86-S; United Clerical Employees v. County
of
Contra Costa (1977) 76
Cal.App.3d 119, 127.) Even then, the extent of the employer's right to object to a particular
individual is limited to a "veto" power, i.e., a refusal to meet with that individual, rather than a
22
56

assert a right to influence or direct the employee's choice
of
a representative interfere with
protected rights, because they convey the impression that engaging in union or other concerted
activity is futile. ( County
of
Riverside, supra, PERB Decision No. 2119-M, pp. 18-20; Dayton
Hudson Corp. (1995) 316 NLRB 477; Holiday Inn-Glendale (1985) 277 NLRB 1254, 1271.)
Although Hartnell is thus correct that, under the circumstances, Moberg had no
protected right to representation by anyone other than an agent
of
the Association, that fact will
not excuse a manager's assertion that Hartnell has any legitimate interest in determining who
will represent an employee in an investigative meeting or other matters within the scope
of
representation. 	Contrary to EERA's scheme for employee choice and collective bargaining,
the statement attributed to Pyer suggests that the employer may legitimately choose who will
represent employees in investigative proceedings or other matters within the scope
of
representation. As such, it could not but tend to discourage employees from the exercise
of
protected rights by suggesting that the entire enterprise is futile. ( County
of
Riverside, supra,
PERB Decision No. 2119-M, pp. 18-20; The Regents
of
the University
of
California (1997)
PERB Decision No. 1188-H, pp. 21~26; Office
of
Kern County Superintendent
of
Schools
(1985) PERB Decision No. 533, adopting proposed dee. at pp. 63-64; Quality Engineered
Products (1983) 267 NLRB 593, 596.) While Moberg has not sufficiently alleged a violation
of
his right to representation in an investigative meeting, because he had no right to
representation by another employee, we conclude that he has sufficiently stated a garden
variety interference allegation under PERB's Carlsbad test because the statement attributed to
right to select or even suggest who should serve as a representative
of
employees. Moreover,
the employer risks liability
if
its refusal to meet and negotiate with the union's designated
agent is unfounded. (City
of
Monterey, supra, PERB Decision No. 1766-M, adopting
proposed dee. at pp. 10-21; Anaheim Union High School District (2015) PERB Decision
No. 2434, pp. 20-22; KDEN Broadcasting Co. (1976) 225 NLRB 25, 35.)
57

Pyer would reasonably tend to discourage the free exercise
of
employee choice and
participation
in
protected activity. (EERA,
§§
3500, 3543, subd. (a), 3543.5; City
of
Monterey,
supra, PERB Decision
No.]
766-M, adopting proposed dee. at pp. 9-10, citing San Ramon,
supra, PERB Decision No. 230, p.
16.)2 3
Hartnell's position statement alleges that Pyer responded to Moberg's message
regarding Tabera's unavailability by "informing Moberg that he could not insist upon a
specific representative." Citing Exhibit 4 to its July 26, 2013 position statement, Hartnell
further alleges that Pyer copied her response to the president
of
the Association "so that the
Association could arrange to have a representative available." Hartnell's position statement
also cites Exhibit 4 in support
of
its allegation that Pyer "arranged for the [Association], the
exclusive representative, to make someone available to assist Moberg." However, while
Exhibit 4 includes Moberg's September 10, 2012 email response to Massing (with Pyer
copied), it includes no response from Pyer.
However, in the current procedural posture
of
this case, we make no determination as to
whether Hartnell has sufficiently asserted an affirmative defense based on operational
necessity or other legitimate reason. When the investigation
of
a charge "results in receipt
of
conflicting allegations
of
fact or contrary theories
of
law, fair proceedings,
if
not due process,
Because Moberg lacks standing to assert rights on behalf
of
an employee
organization (see Oxnard Educators Association (Gorcey and Tripp) (1988)-PERB Decision
No. 664, pp. 9-10), we do not address his charge to the extent it alleges that Pyer's statement
interferes with employee organizational rights. Moreover, it does not appear from the facts
alleged that Moberg wished to be represented by the Association. However, the fact that
Moberg was not actually discouraged from representation by the Association is not material
here, because a finding of interference does not require that any employee felt subjectively
threatened or intimidated, or was in fact discouraged from participating in protected activity.
(Clovis, supra, PERB Decision No. 389.) 	Rather, under PERB's Carlsbad test, the inquiry is
an objective one which asks only whether, under the given circumstances, the employer's
conduct would reasonably tend to discourage employees from engaging in protected activity.
23
58

demand that a complaint
be
issued and the matter be sent to formal hearing." (Sacramento
City, supra, PERB Decision No. 2129, p. 6, citing Eastside, supra, PERB Decision No. 466.)
In the absence
of
undisputed evidence that complements but does not contradict the allegations
in the charge and its supporting materials, we cannot rely on Hartnell's version
of
the facts to
dismiss Mo berg's interference allegation at this stage
of
the proceedings. (PERB Reg. 32620,
subd. (c); SEIU (Adza), supra, PERB Decision No. 1632-M; Lake Tahoe, supra, PERB
Decision No. 994; Riverside
USD,
supra, PERB Decision No. 562a; Metropolitan Water
District, supra, PERB Decision No. 2055-M, p. 4, fn. 4.) Because this issue tu.ms on disputed
facts, it is more appropriately resolved on the basis
of
a fully-developed factual. record before
an administrative law judge.
We reverse and remand for issuance
of
a complaint.
ORDER
It is hereby ORDERED that the dismissal
of
the unfair practice charge,
as
amended, in
Case No. SF-CE-2984-E is REVERSED and the matter REMANDED to the Office
of
the
General Counsel for issuance
of
a complaint alleging that Hartnell Community College District
discriminated against Eric Moberg and interfered with protected rights, both in violation
of
the
Educational Employment Relations Act, Government Code section 3543, subdivision (a), in
accordance with this decision.
Members Huguenin and Gregersen joined in this Decision.
59