Claremont Unified School District (PERB 2654E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DAVE LUKKARILA,
Charging Party, 	Case Nos. LA-CE-5936-E
LA-CE-5976-E
v. 	PERB Decision No. 2654
July 10, 2019	CLAREMONT UNIFIED SCHOOL DISTRICT,
Respondent.
Appearance: Fagen Friedman & Fulfrost by Milton E. Foster III, Attorney, for Claremont
Unified School District.
Before Shiners, Krantz, and Paulson, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the Claremont Unified School District (District) to the
proposed decision of an administrative law judge (ALJ). The complaint alleged that the
District violated the Educational Employment Relations Act (EERA)1 by issuing a cease and
desist letter to certificated employee Dave Lukkarila (Lukkarila) after he sent an e-mail to
approximately 200 District staff regarding various workplace and union issues. Following a
formal hearing, the ALJ concluded that the District retaliated against Lukkarila and interfered
with his exercise of protected rights by issuing him the cease and desist letter.2
________________________
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 This case was consolidated with Case No. LA-CE-5936-E for hearing. Neither party
filed exceptions to the ALJ’s dismissal of the complaint in Case No. LA-CE-5936-E.

2
Based on our review of the proposed decision, the entire record, and relevant legal
authority in light of the District’s exceptions, we affirm the proposed decision for the
following reasons.
FACTUAL BACKGROUND
The District is a public school employer within the meaning of EERA section 3540.1,
subdivision (k). The Claremont Faculty Association (CFA) is the exclusive representative of
all certificated employees with the District within the meaning of EERA section 3540.1,
subdivision (e). At all times relevant to this case, Lukkarila was a teacher at the District’s
Claremont High School (CHS), and thus a public school employee within the meaning of
EERA section 3540.1, subdivision (j).
Petition Against Lukkarila
During the 2012-2013 school year, Lukkarila took leave pursuant to the Family
Medical Leave Act (FMLA) and received approximately twenty days of catastrophic leave
from the donations of bargaining unit employees, both benefits provided in the collective
bargaining agreement between CFA and the District.
In January 2013, Lukkarila returned from family care leave. Shortly thereafter,
Assistant Superintendent of Human Resources Kevin Ward (Ward) began hearing concerns
from CHS employees, forwarded to him by CHS Principal Brett O’Connor (O’Connor),
regarding Lukkarila: classroom instruction going off topic, filling instruction time with videos,
speaking with his students about personal matters such as his wife’s PERB case, and union
organizing and representation. Other concerns forwarded to Ward dealt with Lukkarila’s
conduct during CFA meetings at CHS: not allowing others to speak, being aggressive toward
________________________
Accordingly, we affirm the dismissal of the complaint in Case No. LA-CE-5936-E for the
reasons stated in the proposed decision.

3
other teachers, and not respecting the agenda or the CFA president. As the school year
progressed, Ward heard that other staff members were feeling harassed, intimidated, and
threatened by Lukkarila.
On March 20 or 21, 2013, staff members reported to O’Connor that Lukkarila stated he
could understand why Los Angeles Police Officer Christopher Dorner (Dorner) went on a
killing spree as his union was not supporting him. Lukkarila’s comment spread among the
staff and their fear of Lukkarila increased.
By the morning of March 22, 2013, Lukkarila’s Dorner comments had been reported to
District Superintendent Jim Elsasser (Elsasser), who was concerned for staff safety as he
considered the comments to constitute a threat and an escalation of Lukkarila’s behavior.3 He
therefore began scheduling a meeting with his executive team of assistant superintendents to
decide on a plan of action.
That same day, CFA President Dave Chamberlain (Chamberlain) and CFA Executive
Board Member Kara Evans (Evans) requested an emergency meeting with Elsasser. During
their meeting, they presented Elsasser with a petition signed by approximately 40 CHS
employees requesting the District ensure a secure, safe, and effective working environment,
and remedy the hostile work environment at CHS allegedly engendered by Lukkarila’s
behavior. The petition was set forth in a resolution format, and provided:
Whereas Claremont High School staff members report concern[s]
of being cornered in the staff work room and faculty parking
lot[,] to be[ing] verbally lectured and/or pressured for information
and/or otherwise verbally harassed by a colleague, and
________________________
3 Lukkarila’s comment about Dorner was close in time to Dorner’s killing of his co-
workers and their family members after Dorner was dismissed from employment with the Los
Angeles Police Department. Both Elsasser and Ward were familiar with these incidents as
they were highly publicized.

4
Whereas Claremont High School staff members consciously
avoid the staff work room after school to escape [the]
aforementioned harassment, and
Whereas Claremont High School staff members forgo accepting
leadership positions of department and leadership committees to
avoid [the] aforementioned harassment by a colleague, and
Whereas Claremont High School members refuse to attend
department and focus group committee meetings because of [the]
perceived fear of irrational ranting behavior of a colleague, and
Whereas Claremont High School staff members express anxiety
about attending staff meetings because of [the] perceived fear of
irrational ranting behavior of a colleague, and
Whereas Claremont High School staff members report anxious
and disruptive behavior from students in their classrooms as a
result of inappropriate information shared with them in a
colleague’s classroom, and
Whereas Claremont High School staff members express their
uneasiness about a double standard in the evaluation process as a
result of [a] growing disparity in being held accountable for
professional conduct, and
Whereas it is the district’s responsibility to ensure a secure, safe
and effective working environment for all its employees,
Let it thereby be resolved that the district act definitively to
remedy the condition of a hostile and stressful work environment
at Claremont High School, and
Let it furthermore be resolved that a formal grievance from the
undersigned teachers will be necessary to rectify the situation if
definitive action is not taken in a timely manner.
Chamberlain and Evans informed Elsasser that Lukkarila’s escalating conduct was spreading
stress and fear among the staff, and further explained that they were afraid for their lives after
Lukkarila’s Dorner comment.

5
After the meeting with CFA, Elsasser met with his executive team. Elsasser shared the
petition with Ward4 and asked Assistant Superintendent Mike Bateman to contact the police.
Elsasser decided that afternoon to place Lukkarila on paid administrative leave while the
District investigated the allegations contained in the petition.
On March 25, 2013, Ward issued Lukkarila a Notice of Paid Administrative Leave and
Related Directives (Directive), which included, in relevant part, notice of the investigation and
a directive prohibiting Lukkarila from contacting “any District employees,” with the
exceptions of Ward and CFA President Chamberlain or his designee. Elsasser and Ward
believed the Directive was necessary to prevent further harassment, bullying, or threats by
Lukkarila during the investigation.
Ward then hired a private investigation firm to conduct the investigation, instructing the
firm to interview those who signed the petition, any other witnesses of the events set forth in
the petition, and Lukkarila to obtain his version of what occurred.5 The investigative firm was
then to reduce the information to a written narrative and submit it to Ward. Ward did not
instruct the investigative firm to interview any parents or students, and it did not do so.
________________________
4 Ward later identified the signatures on the petition as teachers and other staff
(including psychologists and nurses) working at CHS. Most of the signatures belonged to
employees within the same bargaining unit as Lukkarila.
5 The investigator scheduled Lukkarila to be interviewed on 11 separate occasions, but
he did not appear. The investigation therefore closed without his being interviewed.

6
Lukkarila’s E-mail to Joe Tonan6
Joe Tonan (Tonan) was the CFA president prior to Chamberlain. In June or July 2012,
Tonan drove Lukkarila to see California Teachers Association (CTA) Group Legal Services
attorneys Michael Feinberg (Feinberg) and Gening Liao (Liao), who had assisted Tonan’s wife
in the past. Lukkarila spent approximately four hours with the attorneys and showed them all
of his grievances. At the end of the meeting, Feinberg stated that he was going to write a letter
to the District’s Human Resources department on behalf of Lukkarila.
On December 4, 2013, Feinberg sent a letter to Lukkarila stating that the letter which he
had prepared for the District’s Human Resources office had been completed. Later, CTA
Representative Kimberly Breen (Breen) contacted Lukkarila and informed him that his “time”
had run out and that Feinberg was not going to send a letter on his behalf.7
On December 11, 2013, Lukkarila sent an e-mail to Breen and CFA representatives,
including Tonan,8 asking a number of questions, including some about the Directive.
On December 19, 2013, Lukkarila sent an e-mail to numerous CFA officers, including
Tonan, as well as attorneys Feinberg and Liao. Lukkarila asked numerous questions of the
e-mail recipients, such as: whether they would respond to his questions, why he had been
transferred to a CTA paid representative to represent him, whether CFA would inquire as to the
status of his grievances, and whether Feinberg had sent a letter to the District’s Human
________________________
6 The facts under this heading form the basis for the allegations in Case No.
LA-CE-5936-E. Because those allegations are not before the Board on appeal, we include
these facts only to provide context for the allegations in the case before us, Case No.
LA-CE-5976-E.
7 Neither Tonan, Feinberg, nor Breen testified. Lukkarila’s testimony was admitted
only for the non-hearsay purpose of demonstrating Lukkarila’s reason for sending e-mails on
December 19 and 21, 2013, as discussed further below.
8 As the CFA past president, Tonan was a member of the CFA executive board.

7
Resources department on his behalf. Lukkarila also stated that he wanted advice on pursuing a
group grievance.
On December 21, 2013, at 5:08 p.m., Lukkarila sent an e-mail to Chamberlain and
other CFA representatives, including Tonan, asking Chamberlain a number of questions
regarding the CFA Executive Board and whether CFA failed to meet its statute of limitations
in filing a grievance on his behalf, stating that he was requesting assistance from CFA in filing
a group grievance, and that he was requesting that Kim Watkins, the CFA grievance committee
chair, assist him.
After sending the e-mail, Lukkarila realized he had used an incorrect e-mail address for
Tonan. Therefore, at 5:34 p.m., Lukkarila sent an e-mail to Tonan, which provided:
Neglected to send this to you.
Shamefully, you and Cindy[9] witness the destruction of a family.
Mr. Feinberg, for you and Cindy—arrived in force.
In the meantime, Mr. Feinberg—an honorable attorney—fails to
support his promise to write me just one letter.
In time, your shameful behavior will be exhibited.
Lukkarila explained that the “shameful behavior” referred to in the e-mail was that
Tonan “lied” to him by acting as if he would help him by connecting him with Feinberg, and
then CTA/CFA later withdrew any financial support to pay for Feinberg’s legal services.
On December 22, 2013, Tonan forwarded the 5:34 p.m. e-mail10 to Ward and requested
that the District intervene, as follows:
________________________
9 “Cindy” is Tonan’s wife.
10 The 5:34 p.m. e-mail which Tonan forwarded to Ward did not include the e-mail
which Lukkarila sent to Chamberlain and other CFA representatives at 5:08 p.m.

8
I consider this email to be threatening. It smacks of extortion or
blackmail. I need to have a safe working environment. I have
contacted Kim Breen and Dave Chamberlain, but neither one can
do anything as this is a member vs. member action. The District
needs to do something. I am requesting that you do what you can
to put an end to this. What do you propose to do to ensure that
this type of behavior stops?
(Italics added.)
After Ward received the e-mail, he was concerned that Lukkarila had violated the
Directive, and he sought to respond to Tonan’s request for a safe working environment. Ward
met briefly with Tonan to discuss the e-mail and his concerns.11 Tonan stated he had attended
a number of union meetings at CHS and observed Lukkarila’s behavior, had spoken to a
number of union members, and was himself becoming fearful of Lukkarila. Ward did not meet
with Lukkarila because he recognized Lukkarila’s e-mail address and, on that basis,
determined that Lukkarila had sent the e-mail in question. He thus concluded that Lukkarila
had violated the Directive.
On January 10, 2014, Ward sent the following e-mail to Lukkarila:
The email below was forwarded to me by Joe Tonan. As you can
see, he is concerned with your email correspondence as he
considers your statements threatening.
I must remind you of prior directives regarding your
correspondence with staff during your Paid Administrative
Leave.
Immediately, you are to cease contacting Joe Tonan regarding
such matters.
Thank you for your adherence to this directive[.]
________________________
11 Tonan was not one of the witnesses interviewed by the investigator hired by the
District. He also did not sign the petition.

9
By sending this e-mail, Ward wanted Lukkarila to know how Tonan felt. He also
wanted to remind Lukkarila of the Directive not to contact staff. He did not view his e-mail to
Lukkarila as disciplinary and it was not placed in Lukkarila’s personnel file or any other file.
Commencement of Disciplinary Procedures
In February 2014, Ward received the 176-page investigative report, which found
support for the allegations in the employees’ petition. On March 5, 2014, the District provided
Lukkarila with a Notice of Proposed Intent to Immediately Suspend and Dismiss with an
accompanying Statement of Charges. Therein, Lukkarila was advised of his right to respond to
the Statement of Charges and present any and all information on his behalf at a Skelly
hearing.12 The Skelly hearing was scheduled for March 21, 2014. Lukkarila did not attend the
Skelly hearing and did not submit a written response to any of the charges, except for
requesting a last-minute continuance, which was denied.
On March 27, 2014, the District’s administration recommended to the District Board of
Education (District Board) that Lukkarila be dismissed. On April 3, 2014, the District Board
voted to proceed with the proposed dismissal.
On April 7, 2014, Lukkarila sent an e-mail entitled “Confidential/Internal Union
Memo” to Chamberlain, while copying approximately 200 or more District certificated
employees at their private e-mail addresses. Lukkarila discussed a number of issues including,
but not limited to: Lukkarila’s Skelly hearing; whether Chamberlain questioned Ward about
Lukkarila’s sick leave request; whether the District Board informed Chamberlain of its April 3,
2014 decision; why Chamberlain did not respond to Lukkarila’s request for representation at
the District Board meeting; whether Lukkarila should make certain financial decisions in lieu
________________________
12 The term “Skelly hearing” refers to a pre-disciplinary hearing that complies with due
process requirements set forth in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.

10
of his proposed dismissal; Lukkarila’s past family care leave; Lukkarila’s father’s poor health;
an e-mail from Lukkarila’s mother regarding his father’s poor health; and how Lukkarila
should “handle a potential CFA catastrophic leave request” or an FMLA request. Lukkarila
closed his e-mail with the following caveat:
PS If [the] CFA member receiving this e-mail is not a CFA
member, please notify me of the error, so I can—respectfully—
exclude one from future e-mails. If a CFA member does not wish
to receive my e-mails, just spam my e-mail address, or notify me.
No worries, whatsoever. I appreciated recent contacts and
welcome anyone to e-mail me, call me [phone number], or
correspond with me at [address].
Note, I do not have the e-mail addresses of any member with the
last names, “R” through “Z.” . . . Mr. Chamberlain, would you
please forward the “R” through “Z” names of CFA members from
the CFA organiz[ational] list? Thank you.
Lukkarila testified that he intended to send the e-mail as a confidential communication
to Chamberlain, and to all CFA members, whom he viewed as part of his representational
team. He expressed a variety of concerns hoping to gain the support of CFA and its members,
and especially wanted to be placed on FMLA and possibly collect catastrophic leave donations
from other members as he had done in the past. His message regarding his father’s poor health
was an attempt to invoke members’ sympathy to donate catastrophic leave to him. He added
the postscript because he considered the e-mail to be confidential and did not want it shared
with non-union members. Lukkarila testified that, in his view, the Directive did not exclude
his contacting other union members.
The April 7, 2014 e-mail was forwarded to Elsasser. Upon review, he was concerned
Lukkarila had violated the Directive prohibiting communication with District staff.

11
On April 8, 2014, Elsasser issued Lukkarila a memo entitled “Continued Inappropriate
Email Contact of District Employees – Cease and Desist” (Cease and Desist Letter or Letter),
providing:
On or about March [25], 2013, you were placed on paid
administrative leave when the District initiated its investigation
into the allegations that you exhibited inappropriate conduct
towards co-workers. The March [25], 2013 notice of
administrative leave contained the following directives: “You
may not enter any of the District’s campuses or properties for any
reason and may not access the District’s computer network or
any individual District computer.” You were also directed “not
to confront, or otherwise contact any employee or students of
the District during your leave.” (emphasis added)
Further, on or about June 18, 2013, you were directed of the
following, “given the District’s ongoing investigation in response
to a complaint [against you] and the lack of urgency regarding
your campaign, the District likewise directs you not to contact
CFA members using your personal e-mail during your leave.”
(emphasis added)
It has come to our attention that you continue to contact District
employee[s] and CFA staff in direct violation of these directives
issued to you. In your most recent April 7, 2014 email, sent at
1:00 a.m., your discussion focuses on your pending dismissal and
union representation. It appears once again that your
insubordinate email communication was meant to illicit [sic] a
response or rather support for your ongoing position and various
disputes with the District and CFA. Such conduct is completely
inappropriate and clearly breaches the directives provided in
your March [25], 2013 notice of administrative leave and
June 18, 2013 correspondence from the District on behalf of the
District.
Despite being counseled and informed on multiple occasions that
such conduct was expressly prohibited, you continued to contact
staff in violation of these repeated directives. You must cease
and desist with this conduct, including any and all contact of
District students or staff members via their personal email
accounts. Your persistent violation of this directive is another
further example of your lack of judgment and inability to follow
the directives of your supervisors and District administration.
This continued insubordination is another illustration of how you

12
have completely undermined the District’s trust in your honesty,
ability and judgment.
You are not to have any contact with any District student or
staff member, absent specific prior permission from the
Assistant Superintendent, Human Resources. The District
cannot make this more clear to you. If you continue to ignore
these directives, the District will be forced to seek more serious
measures, which may include amendment of the pending
dismissal charges and/or appropriate legal action in a court of
law.
Pursuant to Education Code section 44031,[13] this letter shall be
placed in your person[nel] file shortly. If you desire, you may
provide a written response to my attention which shall also be
placed in that file.
(Bold text and internal parentheticals in original quotation; italics added.)
Elsasser issued the Cease and Desist Letter to Lukkarila because he believed
Lukkarila’s e-mail directly violated the Directive not to contact District employees other than
Ward and Chamberlain. Neither Elsasser nor Ward considered the Letter to be a disciplinary
document, but merely a further reminder to follow the prior directives and to cease and desist
from violating those directives. Although the investigation had been completed, the District
still had concerns about further hostile communications by Lukkarila, maintaining a safe work
environment, and the potential escalation of Lukkarila’s behavior during the pending dismissal
________________________
13 Education Code section 44031, subdivision (b)(1), provides:
(b) In addition to subdivision (a), all of the following shall apply
to an employee of a school district:
(1) Information of a derogatory nature shall not be entered into
an employee’s personnel records unless and until the employee is
given notice and an opportunity to review and comment on that
information. The employee shall have the right to enter, and have
attached to any derogatory statement, his or her own
comments. . . .
(Italics added.)

13
process. Elsasser therefore decided not to lift the Directive until the termination process was
complete.
On April 9, 2014, Ward delivered to Lukkarila a Notice of Immediate Suspension
Without Pay and Intent to Dismiss. The dismissal notice informed Lukkarila that on April 3,
2014, the District Board voted to proceed with the dismissal as proposed in the March 5, 2014
Notice of Proposed Intent and Statement of Charges.
DISCUSSION
The complaint alleged that the District issued the April 8, 2014 Cease and Desist Letter
in retaliation for Lukkarila’s protected activity, and that the Letter independently interfered
with his exercise of EERA-granted rights. We address each allegation in turn.
I. 	Retaliation
The District argues the retaliation allegation should be dismissed because: (1) the
Cease and Desist Letter did not constitute an adverse action and (2) legitimate business reasons
justified issuance of the Letter. We reject the District’s argument on both points.
A. 	Prima Facie Case
To establish a prima facie case of retaliation in violation of EERA section 3543.5,
subdivision (a), the charging party must show that: (1) the employee exercised rights under
EERA, (2) the employer had knowledge of the exercise of those rights, (3) the employer took
adverse action against the employee, and (4) the employer took the action because of the
exercise of those rights. (Novato Unified School District (1982) PERB Decision No. 210,
pp. 5-6 (Novato).)
The District does not dispute that: (1) Lukkarila’s April 7, 2014 e-mail was protected
activity under EERA, (2) Elsasser was aware of Lukkarila’s protected activity (i.e., sending the

14
e-mail), and (3) Elsasser issued the Cease and Desist Letter in response to the protected e-mail.
Thus, whether Lukkarila has established a prima facie case turns solely on whether the Letter
constituted an adverse action.
In determining whether an employer’s action is adverse, the Board uses an objective
standard and will not rely upon the subjective reactions of the employee. (Chula Vista
Elementary School District (2018) PERB Decision No. 2586, pp. 24-25 (Chula Vista).) “The
test which must be satisfied is not whether the employee found the employer’s action to be
adverse, but whether a reasonable person under the same circumstances would consider the
action to have an adverse impact on the employee’s employment.” (Id. at p. 25, quoting
Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.)
PERB has found that placing documents “that could support future discipline in an
employee’s personnel file is . . . an adverse action.” (City of Long Beach (2008) PERB
Decision No. 1977-M, p. 13 [counseling memorandum threatening that continued behavior
may result in discipline and which was placed in personnel file considered adverse].) For
example, a notice of unsatisfactory acts, though not disciplinary in itself, was found to be
adverse because it contained a threat of possible future discipline. (Los Angeles Unified School
District (2007) PERB Decision No. 1930, adopting proposed decision at p. 11.) But a threat of
discipline is not necessary for a finding of adverse action; it is enough that the document
placed in the employee’s personnel file accuses the employee of misconduct or substandard
performance and thus potentially impedes the employee’s advancement. (County of Riverside
(2009) PERB Decision No. 2090-M, pp. 28, 30; State of California (Department of Youth
Authority) (2000) PERB Decision No. 1403-S, pp. 32-33.) For instance, a formal letter placed
in an employee’s personnel file that summarily concluded the employee engaged in

15
“inappropriate and negative” conduct was found to be adverse. (Alisal Union Elementary
School District (2000) PERB Decision No. 1412, pp. 19, 22-23.)
In this case, Elsasser definitively wrote to Lukkarila, “It appears once again that your
insubordinate email communication was meant to illicit [sic] a response or rather support for
your ongoing position and various disputes with the District and CFA. Such conduct is
completely inappropriate and clearly breaches the [March 25, 2013 Directive].” (Italics
added.) Elsasser then warned him, “If you continue to ignore these directives, the District will
be forced to seek more serious measures, which may include amendment of the pending
dismissal charges and/or appropriate legal action in a court of law.” (Italics added.) In
conclusion, he notified Lukkarila the Cease and Desist Letter would be placed in his personnel
file.
The District claims the Cease and Desist Letter was not, nor was it intended to be,
disciplinary in nature, arguing that it cannot be thought adverse because Lukkarila was
permitted to and continued to communicate with his union representatives. But neither the
District’s intent nor Lukkarila’s continued communication with his union representatives are
relevant to the question of adversity. Rather, the relevant inquiry is “whether a reasonable
person under the same circumstances would consider the action to have an adverse impact on
the employee’s employment.” (Chula Vista, supra, PERB Decision No. 2586, p. 25.)
The Cease and Desist Letter repeatedly charged, in no uncertain terms, that Lukkarila—
already facing potential dismissal for inappropriate conduct toward his co-workers—had “once
again” insubordinately engaged in inappropriate communications. Though Elsasser did not
explicitly say the District would impose discipline based on the April 7, 2014 e-mail, he
warned Lukkarila that if his behavior continued, further such communications may be used to

16
amend the pending disciplinary charges and advised Lukkarila that he would place the letter in
his personnel file. Because a reasonable person in Lukkarila’s position would consider the
Letter adverse to his or her employment, we find it constituted an adverse action. Because the
other three elements of the Novato test are undisputed, Lukkarila has established a prima facie
case of retaliation.
B. 	Employer’s Affirmative Defense
Once the charging party establishes a prima facie case of retaliation, the burden shifts to
the respondent to prove it would have taken the same adverse action even if the employee had
not engaged in the protected activity. (Chula Vista, supra, PERB Decision No. 2586, p. 27;
Novato, supra, PERB Decision No. 210, p. 14.) When it appears the adverse action was
motivated by both lawful and unlawful reasons, “the question becomes whether the [adverse
action] would not have occurred ‘but for’ the protected activity.” (Martori Bros. Distributors
v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730.) The “but for” test is an
affirmative defense which the employer must establish by a preponderance of the evidence.
(McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.) The
employer’s evidence must establish both that it had an alternative, non-discriminatory reason
for taking the adverse action, and that its proffered reason was, in fact, the actual reason for
taking the adverse action. (Palo Verde Unified School District (2013) PERB Decision
No. 2337, p. 31 (Palo Verde).)
The essence of the Novato test is to determine whether the employer acted for a
discriminatory or retaliatory reason. (Regents of the University of California (2012) PERB
Decision No. 2302-H, p. 3.) In making this determination, once the charging party establishes
a prima facie case, we weigh the evidence supporting the employer’s alternative, non-

17
discriminatory justification for the adverse action against the evidence of the employer’s
unlawful motive. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C,
p. 19; Rocklin Unified School District (2014) PERB Decision No. 2376, p. 14; Palo Verde,
supra, PERB Decision No. 2337, p. 33.) The outcome of a discrimination or retaliation case is
thus ultimately determined by the weight of the evidence supporting each party’s position.
(San Diego Unified School District (2019) PERB Decision No. 2634, p. 16, fn. 12.)
The District does not dispute that it issued the Cease and Desist Letter in direct
response to Lukkarila’s April 7, 2014 e-mail. Nor does it argue that the e-mail lost statutory
protection due to its content or the manner in which it was conveyed. Instead, the District asks
us to examine the e-mail in the larger context of Lukkarila’s pattern of harassing and
intimidating behavior. As we recently affirmed, “context is always relevant” in determining
whether an adverse action was unlawfully motivated by an employee’s protected activity.
(County of Santa Clara (2019) PERB Decision No. 2629-M, p. 11.) Moreover, the fact that
the adverse action was taken, at least in part, in response to protected activity does not
necessarily preclude the employer from proving the adverse action also was motivated by other
non-discriminatory reasons, and that the employer would have taken the same adverse action
even absent the protected conduct. (See Regents of the University of California, supra, PERB
Decision No. 2302-H, p. 4 [concluding that the employer established its affirmative defense
even though the employer took the adverse action partially in response to protected activity].)
Viewing the April 7, 2014 e-mail in the larger factual context of the record before us, we find
the District has not proven its affirmative defense.14
________________________
14 The District’s argument that we must consider the entire factual context includes
multiple references to findings in the investigative report produced by the outside investigator
retained by the District to investigate allegations of misconduct by Lukkarila. The

18
Although the record establishes that the District legitimately was concerned with
protecting staff from further harassment and intimidation by Lukkarila, we nevertheless find
the District would not have issued the Cease and Desist Letter absent Lukkarila’s protected
e-mail of April 7, 2014. Notably, that e-mail was different from the type of inappropriate
conduct of which Lukkarila had been accused. For instance, the April 7, 2014 e-mail
contained no threats, no intimidating language, and no statements similar to the one Lukkarila
allegedly made about Dorner’s killing spree. Nor is the e-mail similar to the types of
inappropriate behavior alleged in the petition, e.g., being aggressive toward other teachers,
interrupting speakers, ranting during meetings, etc. Moreover, the e-mail stated that any
recipient who did not wish to receive further e-mails from Lukkarila could just let him know
and he would remove them from his e-mail list. Thus, the e-mail’s content provides no basis
upon which the District reasonably could conclude that it was threatening, intimidating or
harassing, thereby justifying a total ban on future communications with District employees.
The Cease and Desist Letter nonetheless expressly prohibited Lukkarila from
communicating with other employees about his working conditions:15
It has come to our attention that you continue to contact District
employee[s] and CFA staff in direct violation of these directives
________________________
investigative report was never admitted into the evidentiary record. Thus, the District’s
reliance on the report violates PERB Regulation 32300, subdivision (b), which states:
“Reference shall be made in the statement of exceptions only to matters contained in the record
of the case.” (PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.) And, of course, because the report is not in the record, we cannot
consider it in deciding this case. (California State University, San Francisco (1991) PERB
Decision No. 910-H, p. 9.)
15 “[T]here is no more fundamental right afforded employees under the statutory
scheme than the right to communicate with others about working conditions.” (Los Angeles
Community College District (2014) PERB Decision No. 2404, p. 11, fn. 5 (LACCD).) Speech
concerning the “autonomy and effectiveness of the exclusive representative” is also protected.
(Rancho Santiago Community College District (1986) PERB Decision No. 602, p. 12.)

19
issued to you. In your most recent April 7, 2014 email, sent at
1:00 a.m., your discussion focuses on your pending dismissal and
union representation. It appears once again that your
insubordinate email communication was meant to illicit [sic] a
response or rather support for your ongoing position and various
disputes with the District and CFA. Such conduct is completely
inappropriate and clearly breaches the directives provided in your
March [25], 2013 notice of administrative leave and June 18,
2013 correspondence from the District on behalf of the District.
The explicit statement in this paragraph that the District considered it “completely
inappropriate” for Lukkarila to seek support from co-workers for his “ongoing position and
various disputes with the District and CFA,” coupled with the undisputed fact that the District
issued the Cease and Desist Letter in direct response to those communications, is strong
evidence that the District would not have issued the Letter absent Lukkarila’s protected
activity. (See State of California (Department of Corrections & Rehabilitation) (2012) PERB
Decision No. 2282-S, p. 14 [finding no lawful basis for discipline where a written reprimand
explicitly stated it was issued because of the employee’s conduct during meetings where she
was “acting as a representative” of her union].) Thus, although the District had legitimate
concerns about protecting its employees from harassing and intimidating behavior by
Lukkarila, the Letter went far beyond those concerns by banning all communications with
District staff, not just those of a harassing or intimidating nature. Because the balance of the
evidence weighs against the District, we conclude it failed to prove its affirmative defense that
it would have issued the Letter notwithstanding the protected content of Lukkarila’s April 7,
2014 e-mail.
II. 	Interference
Similar to its argument on the retaliation allegation, the District contends that issuance
of the Cease and Desist Letter was justified by the legitimate business reason of preventing

20
District staff from being subjected to further harassing and inappropriate conduct by Lukkarila.
And just as with the retaliation allegation, we find the balance of the evidence weighs against
the District.
EERA section 3543 protects public school employees’ “right to form, join, and
participate in the activities of employee organizations” in matters concerning employer-
employee relations. PERB’s interference test does not require evidence of unlawful motive, only
that the employer conduct at issue has a tendency to create at least “slight harm” to employee
rights. (LACCD, supra, PERB Decision No. 2404, p. 5; Simi Valley Unified School District
(2004) PERB Decision No. 1714, p. 17.) To establish a prima facie case, the charging party
must demonstrate that the employer’s conduct tends to or does result in harm to employee rights.
(Carlsbad Unified School District (1979) PERB Decision No. 89, p. 10 (Carlsbad).) If the prima
facie case is established, PERB balances the degree of harm to protected rights against any
legitimate business interest asserted by the employer. (Hilmar Unified School District (2004)
PERB Decision No. 1725, p. 17, citing Carlsbad, supra, at pp. 10-11.) “Where the harm is
slight, the Board will entertain a defense of operational necessity and then balance the competing
interests.” (Ibid.) “Where the harm is inherently destructive [of protected rights], the employer
must show the interference was caused by circumstances beyond its control.” (Ibid.)16
In the area of employer rules and directives, PERB does not look favorably on broad,
vague directives that might chill lawful speech or other protected conduct. (LACCD, supra,
PERB Decision No. 2404, p. 6.) In cases where an employer has issued a broad directive to an
________________________
16 In his dissent in Contra Costa County Fire Protection District (2019) PERB Decision
No. 2632-M, Member Shiners disagreed that the concept of “inherently destructive conduct”
should be part of PERB’s interference standard. Nevertheless, he recognizes that extant Board
law continues to include that concept in its interference test, and thus concurs in its application
here for institutional reasons.

21
employee under investigation not to contact other employees, we have found harm to the
employee’s rights because the directive could be read “to prohibit the employee from
participating in a variety of protected activities, including discussing his working conditions with
his coworkers.” (San Diego Unified School District, supra, PERB Decision No. 2634, p. 17;
County of Santa Clara (2018) PERB Decision No. 2613-M, p. 9; LACCD, supra, PERB
Decision No. 2404, p. 9.) In such cases, the employer bears the burden of proving the existence
of an operational necessity for the directive as to that specific employee under the particular
circumstances. (San Diego Unified School District, supra, PERB Decision No. 2634, p. 18;
County of Santa Clara, supra, PERB Decision No. 2613-M, p. 12; LACCD, supra, PERB
Decision No. 2404, p. 13.)
On its face, the Cease and Desist Letter prohibited Lukkarila from communicating with
other District employees about his “ongoing position and various disputes with the District and
CFA” in regard to his pending disciplinary proceedings and union representation. Because the
Letter prohibited Lukkarila from “discussing his working conditions with his coworkers,” it
tended to harm Lukkarila’s EERA-protected right to engage in such discussions. (San Diego
Unified School District, supra, PERB Decision No. 2634, p. 17; County of Santa Clara, supra,
PERB Decision No. 2613-M, p. 9; LACCD, supra, PERB Decision No. 2404, p. 9.)
The District asserts there was no harm to Lukkarila’s communication rights for two
reasons. First, the District argues the Cease and Desist Letter was not harmful to Lukkarila’s
rights because it explicitly allowed him to communicate with CFA representatives, even those
who were District employees. But the right protected by EERA section 3543 “is the right to
communicate with co-workers about working conditions.” (County of Santa Clara, supra,

22
PERB Decision No. 2613-M, p. 15.) Thus, allowing Lukkarila to communicate with union
representatives did not fully alleviate the harm to his protected rights. (Ibid.)
Second, the District contends the Cease and Desist Letter caused no actual harm to
Lukkarila because after receiving it he continued to communicate with District staff and CFA
members about his dissatisfaction with the District and continued to utilize union
representation. “A finding of interference, 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.” (Hartnell Community College District (2015) PERB Decision No. 2452,
p. 24; Clovis Unified School District (1984) PERB Decision No. 389, p. 14.) The fact that the
Letter did not actually discourage Lukkarila from continuing to communicate with his
co-workers thus does not preclude finding that the Letter would have discouraged a reasonable
employee from doing so.
Having found that the Cease and Desist Letter objectively tended to harm Lukkarila’s
protected right to communicate with other District employees, we turn to the District’s asserted
justification for the Letter.17 To justify a directive prohibiting an employee from
communicating with co-workers, the employer must prove it had a “legitimate and substantial
business justification” for the prohibition. (LACCD, supra, PERB Decision No. 2404, p. 6;
Hyundai America Shipping Agency (2011) 357 NLRB 860, 874.) In County of Santa Clara and
LACCD, we found broad “no contact” directives unlawful where the employer offered no
________________________
17 Because we find the District’s conduct was not justified under the less stringent test
applied to conduct that causes comparatively slight harm to employee rights, we need not
determine whether the potential harm is comparatively slight or inherently destructive. (Chula
Vista, supra, PERB Decision No. 2586, p. 29, fn. 11.)

23
rationale for the directive other than issuing the directive was the employer’s standard practice
when an employee is under investigation. (County of Santa Clara, supra, PERB Decision
No. 2613-M, p. 12; LACCD, supra, PERB Decision No. 2404, p. 13.) In San Diego Unified
School District, we found the employer’s justification for a “no contact” directive lacking where
the stated purpose was to prevent the employee under investigation from soliciting or
encouraging staff members to submit comments to an online petition about the employee’s
conduct. (San Diego Unified School District, supra, PERB Decision No. 2634, p. 18.)
Here, the District asserts the Cease and Desist Letter’s blanket prohibition on
communications was necessary to protect District employees from being harassed and
intimidated by Lukkarila. However, Lukkarila’s April 7, 2014 e-mail was neither harassing
nor intimidating on its face. Consequently, the District’s asserted need to protect its employees
from further communications like Lukkarila’s April 7, 2014 e-mail is not a legitimate and
substantial business justification for prohibiting all communication between him and District
staff.
In finding unlawful interference here, we are mindful of an employer’s obligation to
protect employees from harassing or intimidating behavior by co-workers. We also
acknowledge that when an employee communicates about working conditions in an
inappropriate manner, it may be difficult to craft a directive that adequately protects
co-workers while still allowing the employee to exercise their statutory communication right.
Nonetheless, the key to an appropriate directive is that it is tailored to the particular
circumstances. (San Diego Unified School District, supra, PERB Decision No. 2634, p. 18;
County of Santa Clara, supra, PERB Decision No. 2613-M, p. 12; LACCD, supra, PERB
Decision No. 2404, p. 13.) In some circumstances, a prohibition on the specific manner or type

24
of communications in which the employee has already engaged might be appropriate. As one
example, the District was free to direct Lukkarila not to engage in harassing or intimidating
conduct, whether in person or by e-mail. As another example, the District was free to direct
Lukkarila to refrain from insensitively referring to incidents of gun violence. Here, however,
the District made no attempt to tailor the Cease and Desist Letter to cover unprotected conduct.
Instead, it issued a broad directive prohibiting all communications with District employees,
which on the record before us unnecessarily restricted Lukkarila’s right to communicate with
his co-workers about working conditions and other protected topics.
III. 	Remedy
The District excepts to two portions of the ALJ’s proposed order: (1) that the District
“[n]otify the Commission on Professional Competence (CPC) of this decision if the April 7,
2014 e-mail was an allegation in the District’s termination action against Lukkarila and the
determination of the CPC is not yet final”; and (2) that the District “[n]otify the California
Commission on Teacher Credentialing (CCTC) of this decision if the District utilized the
April 7, 2014 e-mail as a reason to report Lukkarila to the CCTC pursuant to Education Code
section 44030.5, subdivision (a), and the CCTC has not yet rendered a final determination on
this referral.” In support of its exceptions, the District has submitted a declaration by its
counsel in this matter asserting that Lukkarila’s April 7, 2014 e-mail was not used as a basis
for his termination or for reporting him to CCTC. The declaration also asserts that Lukkarila’s
termination is now final. Based on the declaration, the District asks us to modify the ALJ’s
proposed order by striking the two portions quoted above.
Although we have no reason to doubt the statements in District counsel’s declaration,
we cannot determine solely from the declaration whether either or both of the challenged

25
portions of the order are now moot. We therefore decline to remove those portions from our
order, and leave it to be determined in compliance proceedings whether the conditions
obviating the District’s need to notify the CPC and the CCTC of this decision have been met.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5936-E, Dave
Lukkarila v. Claremont Unified School District, is DISMISSED.
Based upon the foregoing findings of fact and conclusions of law, and the entire record
in Case No. LA-CE-5976-E, Dave Lukkarila v. Claremont Unified School District, it is found
that the Claremont Unified School District (District) violated the Educational Employment
Relations Act (EERA), Government Code section 3543.5, subdivision (a), by issuing Dave
Lukkarila (Lukkarila) the April 8, 2014 Cease and Desist Letter in retaliation for and in
interference with his protected employee rights of sending an e-mail to District employees
seeking their support in work-related matters.
Pursuant to EERA section 3541.5, subdivision (c), it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against Lukkarila for engaging in protected activity.
2. 	Interfering with Lukkarila in his exercise of employee rights.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Rescind the April 8, 2014 Cease and Desist Letter, remove it from
Lukkarila’s personnel file, and destroy it.

26
2. 	Notify the Commission on Professional Competence (CPC) of this
decision if the April 7, 2014 e-mail was an allegation in the District’s termination action
against Lukkarila and the determination of the CPC is not yet final.
3. 	Notify the California Commission on Teacher Credentialing (CCTC) of
this decision if the District utilized the April 7, 2014 e-mail as a reason to report Lukkarila to
the CCTC pursuant to Education Code section 44030.5, subdivision (a), and the CCTC has not
yet rendered a final determination on this referral.
4. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to certificated employees in the
District customarily are posted, copies of the Notice attached hereto as an Appendix. The
Notice must be signed by an authorized agent of the District, indicating that it will comply with
the terms of this Order. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. The Notice shall also be posted by electronic message, intranet,
internet site, or other electronic means customarily used by the District to communicate with
certificated employees. Reasonable steps shall be taken to ensure that the Notice is not
reduced in size, altered, defaced, or covered with any other material.
5. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on Lukkarila.
Members Krantz and Paulson joined in this Decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5976-E, Dave Lukkarila v.
Claremont Unified School District, in which all parties had the right to participate, it is found
that the Claremont Unified School District (District) violated the Educational Employment
Relations Act, Government Code section 3543.5, subdivision (a), by issuing Dave Lukkarila
(Lukkarila) the April 8, 2014 Cease and Desist Letter in retaliation for and in interference with
his protected employee rights of sending an e-mail to District employees seeking their support
in work-related matters.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against Lukkarila for engaging in protected activity.
2. 	Interfering with Lukkarila in his exercise of employee rights.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Rescind the April 8, 2014 Cease and Desist Letter, remove it from
Lukkarila’s personnel file, and destroy it.
2. 	Notify the Commission on Professional Competence (CPC) of this
decision if the April 7, 2014 e-mail was an allegation in the District’s termination action
against Lukkarila and the determination of the CPC is not yet final.
3. 	Notify the California Commission on Teacher Credentialing (CCTC) of
this decision if the District utilized the April 7, 2014 e-mail as a reason to report Lukkarila to
the CCTC pursuant to Education Code section 44030.5, subdivision (a), and the CCTC has not
yet rendered a final determination on this referral.
Dated: _____________________ 	CLAREMONT UNIFIED SCHOOL DISTRICT
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.