Decision 1945E – Journey Charter School * * * VACATED by Journey Charter School (2009) PERB Decision No. 1945a

LA-CE-4808-E

Decision Date: February 28, 2008

Decision Type: PERB Decision

 * * * VACATED by Journey Charter School (2009) PERB Decision No. 1945a * * *

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Perc Vol: 32
Perc Index: 45

Decision Headnotes

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.01000 – Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord

One of the factors that can be used to establish nexus is employer animosity towards a union activist. A charter school was aware of the teachers’ union organizing effort, but there is no evidence that it ever tried to frustrate, thwart or discourage their attempt.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.04000 – Timing of Action

The decision not to renew three teachers’ contracts followed closely after the teachers’ second meeting with an Association representative in which they voted to become part of the District’s faculty bargaining unit. However, timing alone, without more, does not demonstrate the necessary nexus between the protected act and the adverse action.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.05000 – Union Activity of Discriminatee

One of the factors that can be used to establish nexus is employer animosity towards a union activist. A charter school was aware of the teachers’ union organizing effort, but there is no evidence that it ever tried to frustrate, thwart or discourage their attempt. Three teachers engaged in protected conduct when they sought the assistance of the Association and decided to join the union. The Board found that a charter school did not to renew teachers’ contracts due to the contents of a letter they distributed rather than the teachers’ attempt at union organization. There was insufficient evidence to show a charter school was unlawfully motivated to discriminate against three teachers because of their expressed intent to form and join a union. Accordingly, the Board concluded the Association did not sustain its burden of proof that the charter school discriminated or retaliated against three teachers for their participation in protected activity.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications

Nexus can be proven by evidence of the employer’s inconsistent or contradictory justifications for its actions. However, the record is devoid of evidence that a charter school’s justification for its action was inconsistent or contradictory. A charter school did not give a clear reason to teachers for its non-renewal of their contracts. Nevertheless, the totality of the circumstances indicated that a charter school did not renew the teachers’ contracts because they distributed a letter. The Board was unable to draw a reasonable inference of unlawful motivation based solely on the proximity of the charter school’s action and its failure to give the teachers a clear justification for their decision.


504.14000 – Other/In General

The Board found there was insufficient evidence to support an inference that a charter school was unlawfully motivated to discriminate against three teachers because of their participation in protected union organization activities. One of the factors that can be used to establish nexus is employer animosity towards a union activist. A charter school was aware of the teachers’ union organizing effort, but there is no evidence that it ever tried to frustrate, thwart or discourage their attempt. The Board found that a charter school did not to renew teachers’ contracts due to the contents of a letter they distributed rather than the teachers’ attempt at union organization. There was insufficient evidence to show a charter school was unlawfully motivated to discriminate against three teachers because of their expressed intent to form and join a union. Accordingly, the Board concluded the Association did not sustain its burden of proof that the charter school discriminated or retaliated against three teachers for their participation in protected activity. The decision not to renew three teachers’ contracts followed closely after the teachers’ second meeting with an Association representative in which they voted to become part of the District’s faculty bargaining unit. However, timing alone, without more, does not demonstrate the necessary nexus between the protected act and the adverse action. Nexus can be proven by evidence of the employer’s inconsistent or contradictory justifications for its actions. However, the record is devoid of evidence that a charter school’s justification for its action was inconsistent or contradictory. A charter school did not give a clear reason to teachers for its non-renewal of their contracts. Nevertheless, the totality of the circumstances indicated that a charter school did not renew the teachers’ contracts because they distributed a letter. The Board was unable to draw a reasonable inference of unlawful motivation based solely on the proximity of the charter school’s action and its failure to give the teachers a clear justification for their decision.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

The Board deferred to the ALJ’s finding that a charter school council was aware of a teachers’ union organizing efforts. The finding was based on the ALJ’s credibility determinations and were supported by the record, which contained extensive testimony about the circumstances under which organizing efforts were discussed with Council members and parents.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.11000 – Request for Oral Argument

The Board has historically denied requests for oral argument where an adequate record has been prepared, and the parties had an ample opportunity to brief and did, and the issue before the Board is sufficiently clear to make oral argument unnecessary. Finding that these criteria were met, the Board denied the charter school’s request for oral argument.

104.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD
104.01000 – Authority of Board In General; Validity and Application of Regulations (See also 102.01)

EERA is applicable to charter schools. (Ed. Code section 47611.5(a).) As of January 1, 2000, charter school employees have the right to form, join and participate in the activities of employee organizations under EERA section 3543, and PERB has the authority to investigate allegations of unfair practices committed in a charter school under EERA section 3541.3(i).

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.01000 – In General; Statutory Definition

EERA is applicable to charter schools. (Ed. Code section 47611.5(a).) As of January 1, 2000, charter school employees have the right to form, join and participate in the activities of employee organizations under EERA section 3543, and PERB has the authority to investigate allegations of unfair practices committed in a charter school under EERA section 3541.3(i).

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

Contents of a letter to parents did not directly address any issues relating to the teachers’ interests as employees. The teachers did not state how their complaints impacted their working conditions, or how their concerns would advance their interests as employees. Without such evidence, the Board found distribution of the letter was not protected activity. The evidence fails to show how a letter was specifically and directly related to work conditions, treatment of teachers as employees, job cancellation or labor relations problems. As the letter did not state matters of legitimate concern to the employees as employees, the teachers did not engage in activity protected by EERA when they distributed the letter. Three teachers engaged in protected conduct when they sought the assistance of the Association and decided to join the union. The Board found there was insufficient evidence to support an inference that a charter school was unlawfully motivated to discriminate against three teachers because of their participation in protected union organization activities. The decision not to renew three teachers’ contracts followed closely after the teachers’ second meeting with an Association representative in which they voted to become part of the District’s faculty bargaining unit. However, timing alone, without more, does not demonstrate the necessary nexus between the protected act and the adverse action. One of the factors that can be used to establish nexus is employer animosity towards a union activist. A charter school was aware of the teachers’ union organizing effort, but there is no evidence that it ever tried to frustrate, thwart or discourage their attempt. Nexus can be proven by evidence of the employer’s inconsistent or contradictory justifications for its actions. However, the record is devoid of evidence that a charter school’s justification for its action was inconsistent or contradictory. A charter school did not give a clear reason to teachers for its non-renewal of their contracts. Nevertheless, the totality of the circumstances indicated that a charter school did not renew the teachers’ contracts because they distributed a letter. The Board was unable to draw a reasonable inference of unlawful motivation based solely on the proximity of the charter school’s action and its failure to give the teachers a clear justification for their decision. The Board found that a charter school did not to renew teachers’ contracts due to the contents of a letter they distributed rather than the teachers’ attempt at union organization. There was insufficient evidence to show a charter school was unlawfully motivated to discriminate against three teachers because of their expressed intent to form and join a union. Accordingly, the Board concluded the Association did not sustain its burden of proof that the charter school discriminated or retaliated against three teachers for their participation in protected activity.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

Contents of a letter to parents did not directly address any issues relating to the teachers’ interests as employees. The teachers did not state how their complaints impacted their working conditions, or how their concerns would advance their interests as employees. Without such evidence, the Board found distribution of the letter was not protected activity. The evidence fails to show how a letter was specifically and directly related to work conditions, treatment of teachers as employees, job cancellation or labor relations problems. As the letter did not state matters of legitimate concern to the employees as employees, the teachers did not engage in activity protected by EERA when they distributed the letter. The Board found there was insufficient evidence to support an inference that a charter school was unlawfully motivated to discriminate against three teachers because of their participation in protected union organization activities. There was insufficient evidence to show a charter school was unlawfully motivated to discriminate against three teachers because of their expressed intent to form and join a union. Accordingly, the Board concluded the Association did not sustain its burden of proof that the charter school discriminated or retaliated against three teachers for their participation in protected activity.

502.00000 – EMPLOYER DISCRIMINATION; PERSONS PROTECTED
502.01000 – In General

Three teachers engaged in protected conduct when they sought the assistance of the Association and decided to join the union. The Board found there was insufficient evidence to support an inference that a charter school was unlawfully motivated to discriminate against three teachers because of their participation in protected union organization activities. The decision not to renew three teachers’ contracts followed closely after the teachers’ second meeting with an Association representative in which they voted to become part of the District’s faculty bargaining unit. However, timing alone, without more, does not demonstrate the necessary nexus between the protected act and the adverse action. One of the factors that can be used to establish nexus is employer animosity towards a union activist. A charter school was aware of the teachers’ union organizing effort, but there is no evidence that it ever tried to frustrate, thwart or discourage their attempt. Nexus can be proven by evidence of the employer’s inconsistent or contradictory justifications for its actions. However, the record is devoid of evidence that a charter school’s justification for its action was inconsistent or contradictory. A charter school did not give a clear reason to the teachers for its non-renewal of their contracts. Nevertheless, the totality of the circumstances indicated that a charter school did not renew two teacher’s contracts because they distributed a letter. The Board was unable to draw a reasonable inference of unlawful motivation based solely on the proximity of the charter school’s action and its failure to give the teachers a clear justification for their decision. The Board found that a charter school did not to renew teachers’ contracts due to the contents of a letter they distributed rather than the teachers’ attempt at union organization. There was insufficient evidence to show a charter school was unlawfully motivated to discriminate against three teachers because of their expressed intent to form and join a union. Accordingly, the Board concluded that the Association did not sustain its burden of proof that the charter school discriminated or retaliated against three teachers for their participation in protected activity.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.15000 – Other

The decision not to renew three teachers’ contracts followed closely after the teachers’ second meeting with an association representative in which they voted to become part of the District’s faculty bargaining unit. However, timing alone, without more, does not demonstrate the necessary nexus between the protected act and the adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.07000 – Discharge; Layoffs; Constructive Discharge; Rejection During Probation

The decision not to renew three teachers’ contracts followed closely after the teachers’ second meeting with an Association representative in which they voted to become part of the District’s faculty bargaining unit. However, timing alone, without more, does not demonstrate the necessary nexus between the protected act and the adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

The decision not to renew three teachers’ contracts followed closely after the teachers’ second meeting with an Association representative in which they voted to become part of the District’s faculty bargaining unit. However, timing alone, without more, does not demonstrate the necessary nexus between the protected act and the adverse action.