Decision 2959E – Berkeley Unified School District
SF-CE-3556-E
Decision Date: April 28, 2025
Decision Type: PERB Decision
Description: Berkeley Council of Classified Employees (BCCE) filed an unfair practice charge alleging that Berkeley Unified School District violated the Educational Employment Relations Act (EERA) when it involuntarily transferred bargaining unit employee Amber Spencer in retaliation for her protected activity. After a formal hearing, a PERB Administrative Law Judge (ALJ) issued a proposed decision finding that BCCE established its prima facie case that the District retaliated against Spencer because of her protected activity. The proposed decision also found, however, that the District established its affirmative defense that it would have taken the same action absent protected activity and dismissed the complaint. BCCE filed exceptions asking the Board to reverse the proposed decision, including reversal of the ALJ’s determination regarding redaction of a proposed exhibit.
Disposition: In a non-precedential decision, the Board reversed the proposed decision. First, the Board found that the ALJ erred by ruling that a disputed sentence required redaction based upon attorney-client privilege. Second, the Board found that the District did not establish its affirmative defense that it would have taken the same action absent protected activity. While the District alleged that “irreconcilable staff differences” were the reason for the involuntary transfer, the Board found that the District relied on Spencer’s protected activity to support its claim of “irreconcilable staff differences.” Third, the Board declined BCCE’s requests to award non-customary remedies. The Board ordered standard remedies and provided Spencer the opportunity to elect to return to her previous position. Further, provided that Spencer elects to return, the Board ordered the parties to participate in a mediation presided over by the State Mediation and Conciliation Service.
Perc Vol: 49
Perc Index: 175
Decision Headnotes