Clovis Unified School District (PERB 0061E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CLOVIS FEDERATION OF TEACHERS
LOCAL NO. 1463,
Charging Party,
v.
CLOVIS UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. S-CE-2
PERB Decision No. 61
August 7, 1978
Appearances; Garry G. Mathiason, Larry P. Schapiro and
Thomas E. Campagne, Attorneys (Littler, Mendelson, Fastiff and
Tichy) for Clovis Unified School District; Lawrence Rosenzweig,
Attorney (Levy, Koszdin, Goldschmid and Sroloff) for Clovis
Federation of Teachers, Local No. 1463.
Before: Gluck, Chairperson; Gonzales and Cossack Twohey,
Members.
DECISION
This case is before the Public Employment Relations Board
(hereafter Board) on exceptions taken by the Clovis Federation
of Teachers (hereafter Federation) to the hearing officer's
recommended decision. The Federation filed 13 specific
exceptions essentially objecting to the hearing officer's
conclusion that speeches made by the superintendent of the
Clovis Unified School District to teachers employed by the
District did not violate Government Code section 3543.5(a)
and (b).
The Board has considered the record as a whole and the
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attached recommended decision in light of the exceptions. The
Board adopts the hearing officer's findings of fact and
conclusion that the superintendent's speeches were not
threatening and did not interfere with, restrain or coerce
employees in violation of Government Code section 3543.5(a)
and (b).1 It does not adopt his rationale.
To prove a violation of section 3543.5(a) it must first be
shown that the employer's conduct constitutes reprisals,
discrimination, threats of reprisals or discrimination,
interference, restraint, or coercion. The Federation did not
make such a showing in this case. The hearing officer resolved
conflicting testimony to determine the content of the
superintendent's speeches. Based on this determination, he
found that the Federation did not prove by a preponderance of
the evidence that the speeches threatened, interfered with,
restrained or coerced employees. It follows that the speeches
are not conduct which violates section 3543.5(a). The Board
therefore finds it unnecessary to discuss whether the
superintendent's speeches were constitutionally protected or
whether the District had any intent to interfere with employee
rights.
It shall be unlawful for a public school employer to:
(a) Impose 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.
(b) Deny to employee organizations rights guaranteed to
them by this chapter.
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1/GOV. Code sec. 3543.5(a) and (b) provides:

In addressing the issue of whether or not the District
violated section 3543.5(b), the hearing officer was forced to
speculate as to which of its rights the Federation claimed the
District violated. The Federation, in its charge, post-hearing
brief, and exceptions, charged violations of both subsections
(a) and (b) of section 3543.5, but provided no separate
argument supporting its charge that the District violated
section 3543.5(b). If the Federation assumes that a violation
of employee rights under subsection (a) automatically
constitutes a violation of employee organization rights under
subsection (b), the Board does not agree.
Assuming that a single act by the employer can violate the
rights of both employees and employee organizations, the
charging party must argue specifically which rights of each are
violated. The Board will not speculate on this issue, and
therefore dismisses the Federation's charge that the District
violated section 3543.5(b).
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ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that:
The 	hearing 	officer's 	dismissal 	of 	the 	unfair 	practice
charge 	filed 	by 	the 	Clovis 	Federation 	of 	Teachers, 	Local
No . 	1463, 	against 	the 	Clovis 	Unified 	School 	District 	is
affirmed.
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' By: 	Raymond 	J. 	Gonzales, 	Member 	Harry 	Gluck, 	Chairperson
I
( 	~ 	Jerilou Cossack Twohey, 	Membe !'
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EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the Matter of:
CLOVIS FEDERATION OF TEACHERS,
LOCAL NO. 1463,
Charging Party,
vs.
CLOVIS UNIFIED SCHOOL DISTRICT,
Respondent.
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Unfair Practice
Case No. S-CE-2	)
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Appearances: Garry G. Mathiason, Larry P. Schapiro and Thomas E. Campagne, Attorneys
(Littler, Mendelson, Fastiff & Tichy), for Clovis Unified School District; Lawrence
Rosenzweig, Attorney (Levy, Koszdin, Goldschmid & Sroloff), for Clovis Federation of
Teachers, Local No. 1463.
Before Kenneth A. Perea, Hearing Officer.
INTRODUCTION
The events preceding the administrative hearing held on February 7 and 8, 1977
before the Educational Employment Relations Board (hereinafter EERB) in the above-
referenced matter are summarized as follows:
(1) On August 9, 1976, Clovis Federation of Teachers, Local No. 1463 (hereinafter
Federation) filed with the EERB an unfair practice charge pursuant to the Educational
Employment Relations Act, Government Code Section 3540 et seq. (hereinafter EERA),
against Clovis Unified School District (hereinafter District).
(2) On August 26, 1976, the EERB dismissed the charge with leave to amend within
15 calendar days on the grounds that it failed to state the specific section(s) of
the EERA allegedly violated.
All statutory references are to the California Government Code unless
otherwise noted.

(3) On September 10, 1976, the Federation filed an amendment to the charge
alleging that the District violated Section 3543.5(a).
(4) On September 24, 1976, the EERB notified the parties in the matter that
pursuant to EERB Emergency Regulation 35005, it had determined that the Federation
filed a timely amendment to the charge on September 10, 1976, and that the charge as
amended stated a prima facie case.
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(5) On October 13, 1976, the Federation filed a "Second Amended Charge"
alleging:
During the months of March, 1976, the Superintendent
of the above-named school district met with elementary
school faculties and Cluster groups of teachers at
Clovis High School. At some of these meetings, held
during school time with mandatory attendance of teachers,
the Superintendent said that if the teachers elect a
bargaining agent, the administration will confront the
bargaining agent with a list of 150 demands on teacher
performance, including the installation of time clocks,
no release time for dental appointments, and he further
stated that the district will spend in excess of $50,000
to hire an agent to deal with the employees' bargaining
agent. This conduct is in violation of Government Code
Sections 3543.5(a) and (b).
Moreover, in further violation of Government Code Sections
3543.5(a) and (b), the administration of the above-entitled
school district allowed Carl Tomlinson, a classroom teacher,
to circulate their no representation petitions on school
time. David Ward, a teacher, was allowed release time
from his class to talk to teachers at another school on the
issue of no representation. The school district has for-
bidden employee organizations from using school time for
analogous organizational purposes.
(6) On November 11, 1976, the Federation further amended its charge to correct
a "clerical oversight" alleging that the conduct referred to in the Second Amended
Charge occurred "During the month of March and April, 1976. . ."
(7) The District filed timely answers to all the above charges and amended
charges.
2While the unfair practice charge filed on October 13, 1976 was not labeled
"Second Amended Charge," at the administrative hearing held on February 7 and 8, 1977,
:.the hearing officer requested the parties to so refer to it for clarification.
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(8) At the administrative hearing on February 7, 1977, the Federation
moved to withdraw the second paragraph of the Second Amended Charge beginning with
the words "Moreover, in further . . . " and ending with the words " . . . organizational
purposes" 3/ and said motion was granted.
FINDINGS OF FACT
A. Events Preceding the Superintendent's Meetings on April 6 and April 8, 1976
To properly assess the precise scope of the expressions made by the District's
Superintendent, Dr. Floyd Buchanan, to certificated employees of the District, it is
necessary to examine the context of the labor relations setting in which they were
made. NLRB v. Gissel Packing Co., 395 U.S. 575, 23 L. Ed. 547, 71 LRRM 2481 (1969).
In late February 1976, Associate Superintendent Peter Mehas suggested that
Superintendent Buchanan make a "State of the District" address, as requested by some
of the District's school site principals and teachers, at the District's school sites
due to Mehas' concern that Buchanan had lost some of his personal association with
the teaching faculty and site principals in recent years because of the District's
rapid growth.
The District's associate and assistant superintendents concurred with Mehas'
recommendation. Buchanan then requested Mehas to set up a schedule for visiting the
District's school sites during the months of March and April 1976.
The meetings commenced as scheduled and Buchanan discussed with the District's
certificated employees the following subjects:
(1) The progress and future of the District's "war against illiteracy;"
(2) How many teachers would be hired and how many teachers would be
transferred due to the rapid growth of the District;
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Although in November 1976, the District received a copy of the amendment from
the Federation, the District agreed to formally accept service by the EERB of
the amendment at the administrative hearing on February 7, 1977.
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(3) The $17 million budget as it reflected the District's past growth;
(4) The District's construction of an elementary school every year;
(5) The extent of the District's building program for the future; and
(6) The effect of collective bargaining for public school employees on
the future of the District.4
Having established the context of the labor relations setting in which the
employer expressions were made, we shall now turn to the events in April which were
stipulated by the parties as the speeches referred to in the unfair practice charge.
B. The Meetings of April 6 and April 8, 1976
On April 6, 1976, Superintendent Buchanan addressed Cluster I of the Clovis
High School which included the social science, English and driver training
departments. On April 8, 1976, a similar speech was delivered at the Dry Creek
Elementary School with the entire teaching staff present, consisting of approximately
20 teachers. The meetings were held on school time and teachers attending the
meetings reasonably understood that attendance was mandatory.
Both the April 6 and April 8 meetings were divided into three-fifteen minute
segments. The first segment was devoted to subject items one (1) through five (5)
above. The second segment of Superintendent Buchanan's address concerned collective
bargaining. The final segment was reserved for questions and answers from teachers
present at the meetings.
There is conflicting testimony in the record regarding precisely what
Dr. Buchanan stated on the subject of collective bargaining at the meetings of
April 6 and April 8, 1976. The Federation called six witnesses on its behalf. The
testimony of each witness is summarized as follows:
(1) Mrs. Janet Wigim. Mrs. Wigim was present at the meeting of April 6, 1976
at Clovis High School. Dr. Buchanan stated to the teachers that if the teachers
4/At the end of the Superintendent's first presentation covering subject items
one (1) through five (5) above, several questions were raised by District employees
regarding collective bargaining and how it would affect the District. Based upon these
questions, Buchanan decided to incorporate a discussion of collective bargaining into
his presentation at subsequent sites.
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elected a bargaining agent"they" would present a list of demands on teachers
which would include such things as time clocks and the elimination of release
time for dental appointments.
Dr. Buchanan stated that open communication between teachers and administrators
would no longer exist, things would have to be much more formal and the "homey"
atmosphere that existed would be dissolved by collective bargaining.
Dr. Buchanan discussed the possibility of the District being required to pay
for legal advice in order to interpret all the dealings between teachers' organizations
at the cost of sacrificing other things within the District.
Dr. Buchanan cited examples of schools in New York where the above items did
exist and where collective bargaining did exist.
(2) Mr. Benjamin C. Jameson. Mr. Jameson was also present at the meeting of
April 6, 1976 at Clovis High School.
Dr. Buchanan stated that several people had asked him what was going on
regarding collective bargaining within the District and that he had called the
meeting to explain to people his views on collective bargaining.
Dr. Buchanan suggested that if collective bargaining were implemented, he
would not be able to speak to the teachers very freely. Dr. Buchanan further suggested
that collective bargaining might result in the installation of time clocks and that
people would not be able to get release time for dental appointments.
Dr. Buchanan stated that it would be better for the teachers to go slowly in
the area of collective bargaining because most people don't know too much about it.
Dr. Buchanan stated that if collective bargaining took place in the District, the
District would place a "long list" of demands on the bargaining table.
Dr. Buchanan stated that release time and time clocks would be a matter of
negotiation if a collective bargaining agent was elected.
Dr. Buchanan stated, in answer to a question from the teachers regarding where
the money that the District might need to employ negotiating personnel and lawyers
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would come from, that the money for negotiations would come out of the District's
general fund.
Dr. Buchanan stated his observations that some teachers in the New York
schools were allowed a break in the afternoon and that resulted in a cost of
thousands of dollars to the taxpayers.
(3) Mrs. Charlene Dilliard. Mrs. Dilliard also attended the April 6, 1976
meeting at Clovis High School. Dr. Buchanan stated that the District had always
tried to be fair with the teachers and had taken care of its teachers and that
collective bargaining could bring side effects into the District that would not be
beneficial to "us". Dr. Buchanan stated that he had visited schools in the East and
had seen the effect of unionization in the schools where teachers had demanded things
that had nothing to do with the benefit of children.
Dr. Buchanan then stated that he could foresee that if collective bargaining
came into being it could result in such things as time clocks being installed on
campuses, teachers not being given the freedom that they now had and that we
would no longer be able to work together and sit down and work out our differences
as we had done in the past.
Dr. Buchanan, in answer to a question about where the money would come from if
it came to impasse or negotiations, stated that the money would have to come from
the general fund and that it could run up to more than $50,000 and that the general
fund is the same fund that teachers' salaries come from.
Dr. Buchanan stated that one of the school districts he had visited in New
York had to employ armed guards due to the disruption within the schools because
all the teachers were on coffee breaks.
Dr. Buchanan stated that if collective bargaining took place the District
could place on the bargaining table a list of 150 demands including such things as
time clocks.
Dr. Buchanan stated that time clocks might be one of the items included in
that 150 demand list.
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Dr. Buchanan stated that in collective bargaining, teachers could be held
accountable for every minute of their time.
Dr. Buchanan stated that collective bargaining and a contract could cut down
on the flexibility or freedom to work together between the administration and the
teachers.
Dr. Buchanan stated that the teachers could vote for no representation rather
than the union or the CTA.
The list of demands by the District also potentially included the elimination
of certain release time, for example, time currently taken for dental appointments
and this would be subject to negotiations. The District could place on the
bargaining table as one of its demands the elimination of this type of release time.
Dr. Buchanan stated that if time clocks became a provision in the contract the
teachers would be required to put in so much time and they would be penalized for
any time that they clocked out.
(4) Ms. Sandra Smith. Ms. Smith testified that she attended a meeting with
Dr. Buchanan at the Temperance-Kutner School. The parties to the hearing stipulated
that the meeting at Temperance-Kutner occurred on March 30, 1976 and that all
testimony from Ms. Smith regarding said meeting would therefore be stricken.
(5) Mr. Emory Haggin. Mr. Haggin attended the meeting at Dry Creek Elementary
School on April 8, 1976.
Dr. Buchanan related some stories about other districts in the East that had
collective bargaining laws and some of the problems that they had.
Dr. Buchanan cited examples about what had happened in other school districts
he had visited on the East coast which had collective bargaining such as the institution
of time card machines and the elimination of doctor visit privileges without some
kind of formal process or excuse.
Dr. Buchanan stated that he thought we would be well advised not to participate
in collective bargaining at least for a couple of years in order to see how it
was going to work.
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Dr. Buchanan said that we need to have trust in each other, and we
could have our teacher representatives in schools cooperate on a basis similar
to the Winton Act.
At the conclusion of Dr. Buchanan's speech, one of the teachers, David Ward,
said he would like all of the teachers to remain for moment. Petitions were then
produced stating language to the effect that the undersigned did not believe that
collective bargaining is in the best interests of the teachers of Clovis Unified
School District. David Ward spoke to the effect: "Now that you've heard
Dr. Buchanan's side, if you would be interested in signing these petitions, we
have them here."
Emory Haggin offered hearsay evidence of a general conversation between
Mr. John Welfare, a teacher at Clark School, and Mr. Haggin. Mr. Welfare stated that
some people who had signed pledge cards for California Teachers Association (hereinafter
CTA), had asked that their names be withdrawn or their pledge card be returned.
Dr. Buchanan stated that these things could happen in Clovis Unified School
District.
Dr. Buchanan indicated that if negotiations took place the District might have
to put a large number of demands on the bargaining table.
Dr. Buchanan used the term "proceed slowly" in connection with collective
bargaining.
In answer to a question regarding the cost of collective bargaining for the
District, Dr. Buchanan said it was his understanding that it could run into a
considerable amount of money and that money all came out of one pool and it may well
come out of "our" pocketbook.
Dr. Buchanan said that we should sit back and see what happens, "til the water
clears," and that there could be some things that would be bad for us to be involved in.
(6) Ms. Judith Farrington. Ms. Farrington attended the meeting at Clovis
High School on April 6, 1976.
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Dr. Buchanan said that if we elect a bargaining agent, one of the things
that the school district would do would be to install time clocks and restrict
release time for doctor's appointments.
The District presented two witnesses, Dr. Peter Mehas and Superintendent
Buchanan. Their testimony is summarized as follows:
(1) Dr. Peter Mehas. Dr. Mehas attended the meeting at Clovis High School
on April 6, 1976. Superintendent Buchanan appealed to the teachers in attendance
to "go slow and plow deep." He asked them to take a close look and move
cautiously before anybody made any rash decisions.
Dr. Buchanan said that it was conceivable that the District would have to
counter the teachers' initial proposal by bringing up another 150 items that might
not even be relevant to the needs of the District. As an example, Dr. Buchanan
said that there was talk in the administrative circles of putting in time clocks
at a school and Dr. Buchanan let the teachers be aware that this was a negotiable
item under collective bargaining.
Dr. Buchanan made everyone at the meeting aware that the money for collective
bargaining had to come from somewhere and that in the District it would probably have
to come from the general fund.
In answer to a question regarding what would be the choices on the ballot,
Dr. Buchanan answered that they could choose one of the representatives or they could
choose no representation at all.
(2) Superintendent Buchanan. At the meetings of April 6 and April 8,
Superintendent Buchanan explained to the teachers that principals had substantial
autonomy concerning working conditions, working hours, and teacher starting times under
the existing structure of the District. Buchanan then enumerated some of the things
that could happen under collective bargaining. Dr. Buchanan testified that he
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stated to the employees that:
. . .one of the things that could possibly happen is that
teachers could come in with large demands, the School
Board comes back with large demands. Then somewhere
in the middle they try to decide a working package
for the School District.
Buchanan explained that this type of process could restrict prerogatives of school
principals due to the binding nature of the contract and that this in turn would
apply to medical and dental leaves which may be covered by the contract.
The subject of time clocks entered into Dr. Buchanan's presentation. Buchanan
testified:
The question came up about length of the school day and
some of the things that are—working conditions that are
discussed in collective bargaining and I pointed out that
sometimes people on both sides ask for ridiculous positions
in hopes of getting a concession from the other side in the
relation what they want, and I pointed out for example that
time clocks is one of these things, and people sometimes in
the bargaining process end up giving the other person some-
thing that might be a ridiculous request that they really
didn't want, but they wanted to trade away, and that as a
result sometimes we do end up with such things as time
clocks, we end up with principals that no longer have the
prerogative of interpreting school time and duties of
teachers, and so forth.
Continuing, Buchanan explained to the teachers that he had observed that some
of the contracts that had been negotiated were 150 pages long or longer and that
the CTA had prepared 240 pages of demands in some school districts. Buchanan asked
the teachers to make their initial proposals more reasonable and to follow the
negotiations to see that the exclusive representative did not accept something as
"heinous" as time clocks to get something in return that was important to it
and that may or may not be important to the teachers and/or the children's' education.
Dr. Buchanan also expressed to the employees his concern about the
expense to the District of negotiations. Buchanan stated that he had read
a recent article in the newspaper involving Fresno Unified School District
and a statement by that District's then superintendent, Dr. Finch, that the
District would have to spend $50,000 in attorney's fees to negotiate on
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behalf of the Fresno Unified School District. Buchanan then stated that
within the near future it could cost the District $50,000 to administer
employer-employee relations under collective bargaining.
All of the witnesses testified from memory regarding Dr. Buchanan's
statements. All witnesses, with the exception of Ms. Farrington and Superintendent
Buchanan who were representatives of the parties, were sequestered prior to
testifying.
Resolution of conflicting testimony by witnesses such as those in this matter,
all of whom appeared sincere and credible, is a difficult task. Memories, however,
are often eroded by the passage of time. It is therefore understandable that
there may be some inconsistency among witnesses because the hearing was held several
months after the subject speech. It therefore appears likely that any inconsistencies
in testimony were the result of the passage of time rather than any deliberate
attempt by any of the witnesses to color the truth.
It is concluded that Dr. Buchanan stated at the meetings of April 6 and 8, 1976
that if collective negotiations were implemented in the District it was Buchanan's
opinion that relations between the District and the teachers would become more
formal. Dr. Buchanan further stated that if the teachers choose to bargain with the
District that the District would have to counter the teachers' demands with a long
list of demands which might run as high as 150 items. Dr. Buchanan stated that
items such as release time for dental appointments, which was currently administered
informally by the school principals, and time clocks, would be subject to negotiations.
Dr. Buchanan cautioned that collective negotiations could possibly be expensive to
the District and would require sacrificing other budgeting items. Dr. Buchanan cited
examples of what he considered to be some of the negative effects of collective
bargaining as he had observed them in public schools outside California which
included having to use armed guards to supervise students during the teachers' coffee
breaks.
The conclusions regarding Dr. Buchanan's statements at the meetings of April 6
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and 8 are based upon Dr. Buchanan's own testimony as corroborated by the District's
witness, Dr. Mehas, and four of the five witnesses for the Federation whose testimony
has been considered regarding Dr. Buchanan's speech. The testimony of Ms. Farrington,
the only witness whose testimony substantially differed from all other witnesses,
is found to be inaccurate. As noted above, said inaccuracy can be explained due to
the passage of time between Buchanan's speech and the hearing.
ISSUES
(1) Whether Sections 3543.5(a) and (b) may be retroactively applied to
conduct occurring in April 1976.
(2) Whether the Federation's Second Amended Charge was timely filed pursuant
to the EERB's administrative rules and regulations.
(3) Whether the District's superintendent may inform certificated
employees that in the course of negotiations it is possible for 150 demands
to be placed on the negotiating table, including such topics as release time
and time clocks, without violating Sections 3543.5(a) and (b).
(4) Whether the District's superintendent may inform certificated
employees that the expenses of being represented in negotiations could exceed
$50,000 for a school district, without violating Sections 3543.5(a) and (b).
CONCLUSIONS OF LAW
I
THE CONSTITUTIONALITY OF THE RETROACTIVE APPLICATION
OF SECTIONS 3543.5(a) AND 3543.5(b)
Respondent strongly urges that the charges in this matter should be dismissed
since the expressions by Superintendent Buchanan giving rise to the charges occurred
in April 1976, and the retroactive application of Sections 3543.5(a) and 3543.5(b)
thereto would violate the federal and state Constitutions' mandate against ex post
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facto laws.5
The EERB itself has recently had the opportunity to examine the question
of Sections 3543.5(a) and 3543.5(b) retroactive application in San Dieguito Faculty
Association v. San Dieguito Union High School District, EERB Decision No. 22,
September 2, 1977. In considering the issue of the constitutional validity of the
EERA's retroactivity amendment, the Board declared:
As a statutory administrative agency with no powers
to find a statute unconstitutional, we are bound to
interpret the EERA as we find it and leave to the
judiciary questions concerning the constitutional
validity of the EERA on its face.
Accordingly, the hearing officer has no alternative but to find as the Board
has in San Dieguito, that he is without power to find Sections 3543.5(a) and 3543.5(b),
retroactively applied, unconstitutional and leave to the judiciary any questions
regarding the constitutional validity of the EERA.
II
THE AMENDED UNFAIR PRACTICE CHARGE FILED
ON SEPTEMBER 10, 1976
Respondent argues that the Second Amended Charge filed on September 10, 1976
should be dismissed because it was not timely filed.
The original charge filed by the Federation on August 9, 1976 failed to state a
prima facie case pursuant to 8 Cal. Admin. Code Section 35004 in that it failed to
allege which specific section(s) of the EERA had been violated. On August 30, 1976,
the Regional Director dismissed said charge with leave to amend within 15 calendar days.
5The EERA, Chapter 961 of the Statutes of 1975, effectuated Sections 3543.5(a)
and 3543.5(b) on July 1, 1976. By Chapter 421 of the Statutes of 1976, the California
State Legislature on July 10, 1976 amended the EERA and made Sections 3541.5, 3543.5
and 3543.6 retroactively operative to April 1, 1976.
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The hearing officer assigned to process the case correctly determined pursuant
to 8 Cal. Admin. Code Section 35007(a) that by letter filed September 10, 1976 the
Federation filed a timely amendment alleging therein that respondent "has engaged in or
is engaging in an unfair practice within the meaning of Sections 3543.5(a) of the
California Government Code . . . "
The District's argument that the amended charge was untimely filed for failure
to file within 20 days from a letter from the Acting Director to the Federation dated
August 18, 1976 must fail. The EERB's letter of August 18, 1976 merely stated that "we
request you submit your amended unfair labor practice charge postdated no later than
Tuesday, August 24, 1976." Said "request" is not construed to have been an order from
the EERB, non-compliance with which would result in the immediate dismissal of the
charge without leave to amend. The Federation was instead warned that if an amendment
was not filed by August 24, 1976, the EERB would then dismiss the charge at some time
in the future. The EERB carried out this warning on August 30, 1976 when the charge
was dismissed with leave to amend within 15 calendar days pursuant to a formal
"Notice of Dismissal". The Federation's letter filed September 10, 1976 was therefore
a timely filed amendment to the charge.
III
SUPERINTENDENT BUCHANAN'S SPEECHES OF APRIL 6 AND 8
A. The Applicable Standard for Pure Speech Cases Arising under the EERA
Before it may be determined whether a violation of Sections 3543.5(a) and
3543.5(b) occurred as a result of Buchanan's speeches on April 6 and 8, 1976, the
standard by which such speech shall be judged must be established.
The Federation alleges a violation of Sections 3543.5(a) and 3543.5(b) which
states:
It shall be unlawful for a public school employer to:
(a) Impose or threaten to impose reprisals on employees,
to discriminate or threaten to discriminate against
employees, or otherwise to interfere with, restrain,
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or coerce employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights guaranteed
to them by this chapter.
The conduct of which the Federation complains in this case consists solely
of the speeches of Superintendent Buchanan before teachers of the District.
Section 8(c) of the Labor Management Relations Act6 protects such speech in private
sector labor relations so long as it contains no threat of force or reprisal or
promise of benefit.7 But before Section 8(c) became law in 1948, the United States
Supreme Court had occasion to outline the rough parameters of an employer's right
to speak to its employees. In Virginia Electric and Power Co. v. NLRB, 314 U.S. 469,
9 LRRM 405, 408 (1941), the National Labor Relations Board (NLRB) concluded that the
employer had interfered with its employees' right to organize. The Court feared that
the Board had based its conclusion solely on a poster and speeches which in very
general terms urged the formation of an "independent" (company) union instead of
considering the whole course of employer's conduct, which included interrogation
of employees regarding union activities, and a supervisor's threats of discharge for
"messing with the C.I.O." The Court considered the poster and speeches not to be
coercive in themselves and remanded the case to the NLRB saying:
Neither the [National Labor Relations] Act nor the Board's
order here enjoins the employer from expressing its view
6 2 9 U.S.C. Section 158(c).
7 Section 8(c) of the Labor Management Relations Act states:
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic,
or visual form, shall not constitute or be evidence of an
unfair labor practice under any of the provisions of this
Act, if such expression contains no threat of reprisal or
force or promise of benefit.
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on labor policies or problems. The employer in this case
is as free now as ever to take any side it may choose on
this controversial issue. But certainly conduct, though
evidenced in part by speech, may amount in connection with
other circumstances to coercion within the meaning of the
Act. If the total activities of an employer restrain or
coerce his employees in their free choice, then those
employees are entitled to the protection of the Act. And
in determining whether a course of conduct amounts to
restraint or coercion, pressure exerted vocally by the
employer may no more be disregarded than pressure exerted
in other ways.
Following this decision, the NLRB continued to limit employer speech, in
cases involving little more than pure speech and had at least some success
obtaining enforcement of its orders in this case in the Courts of Appeal.8 In
1948, the Taft Hartley Amendments to the NLRA, including Section 8(c), were intro-
duced in Congress. The House version of Section 8(c) would have restricted the NLRB
to using only employer statements which constituted threats or promises in and of
themselves.
9
The Senate version took the contexts of statements into account.
10
A conference committee of both houses wrote the final version which was a compromise
between the two original versions. Scholars dispute whether the final version
represents an enactment of the First Amendment or whether its authors meant for it
to go further.
11
8 See American Tube Bending Co., 44 NLRB 121, 11 LRRM 61 (1942) enf.den. 134 F.2d
994, 12 LRRM 615; Clark Bros. Co., C.A.2, 70 NLRB 802, 18 LRRM 1360 (1946), enfd, other
grounds 163 F 2d 313, 20 LRRM 2436 (1947); Monumental Life Insurance Co. , C A . 6 ,
69 NLRB 247, 18 LRRM 1206, enfd. 162 F.2d 340, 20 LRRM 2225 (1947).
9 Morris, The Developing Labor Law, BNA, 1971, pp. 72-73.
1 0 I b i d .
11Gorman, Robert, Basic Text on Labor Law, West Publishing Co., 1976, p. 150.
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In NLRB v. Gissel Packing Co., supra, Chief Justice Warren stated that
Section 8(c) "implements" the First Amendment. The hearing officer, however, need
not decide whether Section 8(c), and all of the case law following it need be
taken cognizance of pursuant to Fire Fighters Union v. City of Vallejo, 12 Cal. 3d
608 (1974) nor whether Section 8(c) is constitutionally mandated. Virginia Electric
and Power Co., supra, expressly protects noncoercive statements of opinions on labor
problems, pursuant to the First Amendment. Courts recognized long before Section 8(c)
became law that a threat of reprisal was one of the sorts of coercive conduct
referred to in that decision. As will be discussed below, Buchanan's statements,
which must stand or fall as threats, were not threatening. 13
B. Application of the Standard to Superintendent Buchanan's Speeches of April 6 and 8
Examination of the facts in this case in light of the standards established
in Virginia Electric and Power Co. and Gissel leads to the conclusion that the
speech in question did not contain a threat of reprisal or discrimination. The
evidence shows that the "State of the District" address, covering five separate
subjects in addition to negotiations, was conceived of and delivered as a means
of bridging a communication gap between the superintendent and the employees of a
rapidly expanding suburban school district. The subject of negotiating was only
added after the first address when it became obvious through questions from
employees in attendance that the topic was of vital interest to the employees.
1 2 See e.g. NLRB v. Brown Brockmeyer, 143 F. 2d 542, 14 LRRM 763 (1944), C A . 6 .
13
While there was some evidence in the record that some authorization cards
signed by certain employees were withdrawn by employees and that recruiting efforts
by the Federation were difficult, such evidence was based upon hearsay, is speculative
and lacks a showing of a causal nexus between Dr. Buchanan's addresses on April 6 and
8 and the withdrawals of authorization cards and recruiting efforts. Accordingly,
it is concluded that charging party has not shown, by a preponderance of the evidence,
that there was any actual interference, restraint or coercion in the employees'
exercise of their free will in violation of Section 3543.5(a).
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The subject of medical and dental leaves was expressed by Buchanan as one
of the things that possibly "could" be affected through the give-and-take negotiations
process of negotiating. The superintendent did not, however, threaten to
curtail medical and dental leaves if negotiating was implemented. His
speech can only reasonably be interpreted to be the expression of his opinion
regarding one of the possibilities under negotiating.
Nor did Buchanan threaten to install time clocks should the certificated
employees of the District choose to institute negotiating. Rather,
Superintendent Buchanan used time clocks as an example of what were in his
opinion, "ridiculous" conditions that may result when people begin negotiations from
extreme positions which they intend to trade away during negotiations.
On the subject of the District's presentation of initial demands on the
negotiating table, Buchanan expressed to the teachers, as an example of what in his
opinion happens when the parties do not approach negotiations reasonably, that
the District would have to counter the teachers' initial proposal with a long list
of demands which might run as high as 150 items. Buchanan's personal assessment
of what the District might do during the give-and-take negotiation process cannot
reasonably be interpreted as a threat.
Finally, Superintendent Buchanan expressed his concern regarding the cost of
the District of the negotiating process, using as an example Fresno Unified
School District, where the superintendent was quoted in the press as stating
that the Fresno School District would have to spend $50,000 in attorneys fees to
negotiate on behalf of the school district. Buchanan then went on to state that
the Legislature had not allocated funds to school districts to offset the increased
costs of collective bargaining, that such costs must come from the same school
budget as salaries and that it would not surprise him if within a year or two $50,000
would not be an unreasonable amount to have budgeted for collective bargaining in the
Clovis Unified School District.
Like the superintendent's statements regarding medical and dental leaves, time
-18-

clocks, and initial demands, Buchanan's statements regarding the costs of
negotiating cannot be construed to have been an actual or implied threat.
Buchanan's speech was clearly the expression of his view or opinion
wherein he reiterated to the employees a newspaper article he had read regarding
Fresno Unified School District, stated his concern over the fact that the
Legislature had not allocated funds to the local school districts to offset costs
to the school budget for negotiating and expressed an opinion that it
would "not surprise me if $50,000 would be a reasonable amount to have budgeted
for collective bargaining in a year or two." Such vague and casual opinions are
simply not threats within the meaning of Section 3543.5(a) and are therefore
protected speech pursuant to the First Amendment and Virginia Electric and Power Co.,
supra.
In the absence of a threat, the burden is upon the Federation to prove by a
preponderance of the evidence that there was actual interference, restraint or
coercion in the employees' exercise of their free will. The Federation has failed
to meet that burden in this case.
Even assuming that the speech in question was not protected pursuant to the
First Amendment and Virginia Electric and Power Co., supra, it would still be
necessary to dismiss the charge. In San Dieguito, supra, the EERB held that in
order to find a violation of Section 3543.5(a):
. . .we would at a minimum have to conclude that
the District's conduct was carried out with the
intent to interfere with the rights of the
employees to choose an exclusive representative,
or that the District's conduct had the natural
and probable consequence of interfering with the
employees exercise of their rights to choose an
exclusive representative notwithstanding the
employer's intent or motivation.
-19-

As stated above, the uncontradicted evidence shows that Buchanan's "state of
the District" address was conceived of and delivered as a means of bridging a
communication gap between Superintendent Buchanan and the employees of a rapidly
expanding suburban school district. Furthermore, the subject of negotiations was
only added as an afterthought when questions were posed on the subject from
employees during Buchanan's first address. There is no evidence in the record,
therefore, from which to conclude that the subject speech was intended to interfere
with the rights of employees to choose an exclusive representative.
Furthermore, the hearing officer cannot conclude that the subject speech
had the natural and probable consequence of interfering with the employees' exercise
of their rights to choose an exclusive representative notwithstanding the employer's
intent or motivation. As in San Dieguito, it is concluded that "the possibility
that the District's conduct in question had the opposite effect of encouraging a
vote for representation is at least as great, if not greater, than the possibility
that the District's conduct had the effect of discouraging employees from voting
for representation by an employee organization."
C. Application of the Findings to Section 3543.5(b)
The Federation has additionally alleged that Superintendent Buchanan's speeches
of April 6 and 8 were a violation of Section 3543.5(b).
Section 3543.5(b) states:
. . .It shall be unlawful for a public school employer to:
(b) Deny to employee organizations rights guaranteed to
them by this chapter.
The Federation apparently contends that its rights as an employee organization
to conduct a preelection campaign free from threats of reprisals or discrimination
against employees and/or interference, restraint or coercion of employees because of
their exercise of rights guaranteed by the EERA were denied.
-20-

(
Having found, 	however, 	that the employees of the District were not threatened
with reprisals or discrimination nor actually interfered with, 	restrained or
coerced, 	pursuant to Section 3543.5(a), 	it cannot be found that any rights of the
Federation were concomitantly denied in this case.
In conclusion, 	it should be noted that 	the fact 	that Buchanan's addresses
on April 6 and 8 	took place during normal school hours and that attendance was
reasonably understood to be mandatory does not alter the findings 	that no
violation of Sections 3543 .5(a ) 	or 3543 .5(b ) 	occurred. 	Charging party did not
show through direct 	testimony that 	it asked for nor was denied equal opportunity
to make preelection speeches during school 	time nor that the Federation did not
have alternative means to carry its message to the employees. 	Thus, 	under the
facts of this case, 	it would be premature to begin formulating guidelines regarding
so called "captive - audience" 	speeches .
ORDER
The unfair practice charge filed by the Clovis Federation of Teachers, 	Local
No. 	1463, 	is hereby dismissed .
Pursuant to Title 8, 	California Administrative Code, 	Section 35029, 	this
recommended decision and order shall become final on October 20, 	1977, 	unless a
party files a 	timely statement of exceptions. 	See 8 Cal. 	Admin. ~ Section 35030,
Dated: 	October 	8, 1977
- 21-
't,< --·- - ·.
l 	Kenneth A. 	Perea
Hearing Officer