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STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD I) OAKLAND EDUCATION ASSOCIATION, Charging Party, Case No. SF-CE-2283-E v. PERB Decision No. 1880 January 11, 2007 OAKLAND UNIFIED SCHOOL DISTRICT, Respondent. Appearances: Beeson, Tayer & Bodine by Sheila K. Sexton, Attorney, for Oakland Education Association; Liebert Cassidy Whitmore by Emi R. Uyehara, Attorney, for Oakland Unified School District. Before Duncan, Chairman; Shek and McKeag, Members. DECISION DUNCAN, Chairman: This case comes before the Public Employment Relations Board (PERB or Board) on exceptions filed by the Oakland Unified School District (District) to the administrative law judge's (ALJ) proposed decision (attached). The complaint alleged that the District violated the Educational Employment Relations Act (EERA)1 by retaliating against teacher Ronald Robinson (Robinson) for engaging in protected activities when it (1) issued him a notice of non-reelection, and (2) subsequently placed him on paid administrative leave. The Oakland Education Association (OEA) charges that this conduct violated EERA section 3543.5(a). We have reviewed the entire record in this matter, including, but not limited to, the hearing transcript, the complaint, the ALJ's proposed decision, the District's exceptions2 and 1 EERA is codified at Government Code section 3540, et seq. Unless otherwise indicated, all statutory references are to the Government Code. 2 The District filed 103 exceptions to the ALJ's proposed decision. OEA's response. We find the ALJ's findings of fact to be free from prejudicial error and we adopt the proposed decision as the decision of the Board itself, except as set forth below. We conclude that the District did retaliate against Robinson when it issued him a notice of non-reelection. However, the District has met its burden and demonstrated that it would have placed Robinson on administrative leave even if he had not engaged in protected activity. DISCUSSION I. Standard of Review PERB Regulation 323203 provides, in pertinent part, that "[t]he Board itself may . [i]ssue a decision based upon the record of hearing, or ... [a]ffirm, modify or reverse the proposed decision." Accordingly, the Board enjoys broad discretion in its review of an ALJ's proposed decision. The Board announced the proper standard of review in Santa Clara Unified School District (1979) PERB Decision No. 104 (Santa Clara): While the Board will afford deference to the hearing officer's findings of fact which incorporate credibility determinations, the Board is required to consider the entire record, including the totality of the testimony offered, and is free to draw its own and perhaps contrary inferences from the evidence presented. The Board affords "great deference to the ALJ's credibility determinations because the ALJ is in a better position to make those findings." (Fresno County Office of Education (2004) PERB Decision No. 1674 (Fresno COE); see Whisman Elementary School District (1991) PERB Decision No. 868, noting that the Board will defer to the ALJ's credibility determinations absent evidence in the record to support overturning those determinations; United Teachers of PERB regulations are codified at California Code of Regulations, title 8, section 31001, et seq. 2N Los Angeles (Keskey) (1991) PERB Decision No. 914, holding that the Board will defer to the ALJ's findings of fact based upon the credibility of witnesses.) II. Retaliation Claims EERA section 3543.5(a), declares that it shall be "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." To establish a prima facie case of retaliation under Section 3543.5(a), the charging party must show that: (1) the employee exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights; and (3) the employer imposed or threatened to impose reprisals, discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced the employee because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89 (Carlsbad).) The third element of the Novato test is often the lynchpin in a charge of retaliation. This element speaks to the employer's "unlawful motive" in pursuing its chosen course of action. The "unlawful motive" element represents the "specific nexus required in the establishment of a prima facie case." (Novato.) Time and again, the Board has recognized the difficulty of providing direct proof of a retaliatory motive. The Board has thus concluded that "unlawful motive can be established by circumstantial evidence and inferred from the record as a whole." (Ibid.- ; Carlsbad.) The timing of an employer's adverse action is an important indicia of unlawful motive. (North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento).) However, adverse action taken in close temporal proximity to an employee's engagement in 3 W protected activity is not, by itself, sufficient to establish a prima facie case of retaliation. (Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more of the following additional factors must also be present: (1) the employer's disparate treatment of the employee (State of California (Department of Transportation) (1984) PERB Decision No. 459-S (Transportation I)); (2) the employer's departure from established procedures and standards when dealing with the employee (Santa Clara); (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 (Parks and Recreation)): (4) the employer's cursory investigation of the employee's misconduct; (5) the employer's failure to offer the employee justification at the time it took action or the offering of exaggerated, vague, or ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union Elementary School District) (1986) PERB Decision No. 572 (Cupertino)): or (7) any other facts which might demonstrate the employer's unlawful motive. (Novato; North Sacramento.) If the charging party establishes a prima facie case of retaliation, the burden then shifts to the employer "to prove that its action(s) would have been the same despite the protected activity." (Novato: see also, Wright Line, A Div. of Wright Line. Inc. (1980) 251 NLRB 1083 [105 LRRM 1169]; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-30 [175 Cal.Rptr. 626] (Martori Brothers).) In the so-called "dual motive" case, where it appears that adverse action taken against an employee was motivated by both valid and invalid reasons, "the question becomes whether the [adverse action] would not have occurred 'but for' the protected activity." (Martori Brothers.) Under this "but for" test, once the burden has shifted to the employer, the employer must show that it would have pursued its chosen course of action regardless of the employee's engagement in protected activity. (Id at 4 A p. 730.) If the employer fails to carry this burden, the Board is entitled to find the adverse action improper. (Ibid.) III. Robinson's Non-Reelection to the 2002-2003 School Year The ALJ concluded that Robinson engaged in a variety of activities protected under EERA. Specifically, the ALJ found Robinson's protected activity to be (1) participation in the Mayor Brown meeting; (2) his decision to copy Bruce Colwell (Colwell) on his April 27 letter to Lynn Haines Dodd (Dodd); (3) his numerous requests for, and representation by OEA; and (4) his committee participation. A. Protected Activities 1. Mayor Brown Meeting The District excepts to the ALJ's findings regarding the Mayor Brown meeting as being beyond the scope of the first amended complaint,4 and thus, the ALJ's scope of authority. In Antioch Unified School District (1985) PERB Decision No. 515 (Antioch), the Board found that the ALJ had "improperly broadened the scope of his proposed decision on his own initiative." In Antioch, it was absolutely essential to the Board's conclusion that the ALJ issued a ruling finding independent violations of EERA which were alleged neither in the charge nor in the complaint. In that sense, Antioch is clearly distinguishable from the present case. Here, the ALJ did not use evidence regarding the Mayor Brown meeting to form the grounds for an independent violation of EERA, but rather only as "background information" necessary to understanding the tension underlying Robinson's relationship with Dodd during The first amended complaint in paragraph 4 confines the scope of Robinson's engagement in protected activities to the period "[i]n or about September 2000 through May 2002." 5 the course of his employment at McClymonds High School. The ALJ noted that the Mayor Brown meeting is relevant as it represents the commencement of a "pattern of antagonism" between Robinson and Dodd. Evidence regarding the Mayor Brown meeting was offered by OEA for the exact purpose of showing that "pattern of antagonism," and the evidence is thus relevant in establishing an unlawful motive attributable to the District when it issued Robinson a notice of non-reelection. The Mayor Brown meeting focused on issues affecting conditions of employment at McClymonds, such as student violence and disciplinary issues. Robinson's participation in the Mayor Brown meeting was protected under EERA. (Sec. 3543.2(a); see San Diego Community College District (1983) PERB Decision No. 368 (San Diego).) 2. April 27, 2001. Letter to Dodd The ALJ found that Robinson's complaints about student fights in his April 27, 2001, letter to Dodd, and his decision to copy Colwell on that correspondence, were protected under EERA. Copying a union representative on correspondence, without more, neither rises to the level of protected conduct nor establishes an intent to solicit union assistance.