Appeal from decision of the Public Employment Relations Board. Reversed and remanded. (PERB Decision No. 1945).
The opinion of the court was delivered by: Bedsworth, Acting P. J.
CERTIFIED FOR PUBLICATION
The California Teachers Association (CTA) petitions for review of an order of the Public Employment Relations Board (PERB or the Board) which dismissed its own complaint against real party in interest Journey Charter School (Journey).*fn1 The complaint stemmed from CTA's charge that Journey had violated the Educational Employment Relations Act (EERA) (Gov. Code, §§ 3540 et seq.), when it terminated the employment of three teachers: Stephanie Edwards, Paola Schouten and Marlene Nicholas.
CTA had initially charged the terminations were in retaliation for the teachers' efforts to unionize with it, and amounted to illegal interference with those efforts. After PERB determined the charge stated a prima facie case, it issued a complaint, which was later amended to include the additional allegation that Journey's conduct had also been in retaliation for a letter the teachers had sent to parents of Journey students.
However, after an evidentiary hearing before an administrative law judge (ALJ), and a review of his findings by the Board, PERB issued a decision dismissing the complaint. That dismissal was based upon the Board's factual conclusion the terminations had not been based upon the CTA unionization efforts, but were instead prompted solely by the letter sent to parents. The Board then concluded the letter had not qualified as protected activity under the EERA, and thus the terminations were not actionable.
CTA now argues (1) the evidence is insufficient to support the Board's factual determination that the teachers' unionizing efforts with the CTA had not been the cause of their terminations; and (2) PERB erred in concluding the letter, which it believed was the cause, did not amount to protected conduct. We conclude the second claim has merit.*fn2 PERB's determination the teachers' letter did not amount to protected activity cannot be reconciled with its own precedent cited in support of that determination, and thus its decision to dismiss the complaint was clearly erroneous.
Journey is a charter school begun in 1985 as a private co-op preschool run by Edwards out of her home. Schouten joined the school in 1999, and the two women wrote the school's charter. Journey's charter was approved by the Capistrano Unified School District in 2001, at which point Journey became part of the District.
Journey is modeled on the "Waldorf" method of education, which emphasizes arts and music, and has a "collaborative structure of governance involving teachers, parents, and management."*fn3 As explained in Journey's brief to this court, "Charter schools are different from regular K-12 schools in that a charter school which does not retain parents and students literally goes out of business. . . . Administrators, teachers, parents, and students in charter schools are involved in the creative exercise of redefining education." As a consequence, "Journey's Waldorf Methods instruction to students and parents innovates in many collegial ways, including having teachers serve as directors on the governing School Council."
Journey's governing council, which includes both parent and teacher representatives, has responsibility for all school operations, including hiring and firing of employees, and reports to the district. The teacher members of the council were referred to at various times as "Lead Teachers" or "Directors," and were paid a stipend in addition to their teacher's salary as compensation for participation on the council.
By the 2003-2004 school year, Journey had a total staff of about 15-18, including 10 teachers, and served students ranging from kindergarten to sixth grade. Both Edwards and Schouten were teachers as well as members of Journey's council, while Nicolas was a teacher only. In March of 2004, the district's deputy superintendent informed the council that Journey's charter was no longer acceptable and would have to be rewritten. Some of the parents became concerned about the future of the school and expressed those concerns in the form of complaints about Edwards and Schouten.
In April of 2004, the council held a special meeting to discuss the issues raised. In the course of that meeting, the council decided to remove Edwards and Schouten as council members, but to retain them as teachers. When word of that decision spread among the teachers the following morning, there was some disruption of the school day, and the council scheduled a teachers' meeting at lunch time to explain the decision. The decision also caused dissension in the wider Journey community, including the parents of Journey students.
A community meeting was held in late April, during which parents voiced their strongly held -- and diametrically opposing -- opinions regarding the propriety of removing Edwards and Schouten from the council. Nicholas spoke out strongly in favor of Edwards and Schouten, and ultimately stated to one parent that if the discord continued, she "wonder[ed] how much longer before we have another Columbine." That remark offended several parents, and Nichols later sent a letter of apology to the council, parents, and Journey staff.
At a council meeting in mid-May, one member made a motion to terminate Edwards and Schouten's employment as teachers at Journey, but the motion was not seconded. Instead, the council ultimately passed a motion to reinstate Edwards and Schouten to the council, on the condition they participate in mediation with other members of the council and staff.
Meanwhile, having become concerned about her own position and that of the other teachers employed at Journey, Edwards contacted CTA, which arranged for a meeting between the teachers and one of its organizers on the day following the mid-May council meeting.
During June and July, Edwards, Schouten, and other council members participated in mediation. The mediator suggested a reorganization of Journey's governing structure, including the formation of new committees which would report to the council. Although Edwards and Schouten solicited teachers to participate in the committees, some of the teachers viewed that participation as amounting to additional duties and were reluctant to agree. Schouten informed one of the other council members in June that the teachers were "going to organize."
On June 13, the mediator sent an e-mail to council members, seeking approval to send a letter he had written for distribution to the Journey community. In the letter, the mediator proposed a restructuring of Journey's governance, and stated that Edwards and Schouten had resigned their positions on the council. The letter also asserted that in the future all "official communication" from Journey would contain a statement that it was "approved by Journey faculty and Council." However, some of the council members objected to distribution of the letter absent written resignations by both Edwards and Schouten from the council. And while it is undisputed that Edwards and Schouten had resigned from the council no later than June 26, 2004, the last day of the school year, they had apparently never been asked to put those resignations in writing. The proposed letter was never approved by the council for distribution.
On that last day of the school year, the teachers had an informal meeting with two of the non-teacher members of the Council. During that meeting, teachers expressed their concern about the impact the proposed new committees would have on their workload. One of the teachers, who was also a newly-appointed member of the council, stated the workload concern was the reason the teachers needed to join CTA.
On July 26, 2004, all of the teachers met at Edwards' home, and collectively drafted the following letter to the parents of Journey students ("the July 26 letter"):
"Dear Parents of Journey School, "This letter by the teacher faculty at Journey School is intended to communicate directly to you some of the issues that have been weighing heavily on our hearts and minds. We are aware and sensitive to the honest concerns that some of the parents have expressed concerning their frustration with some aspects of the parent-teacher relationship and operations of Journey School. ...