Grossmont Community College District (PERB 0117E)

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STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
GROSSMONT
	COLLEGE 	TEACHERS
	ASSOCIATION,
CTA/NEA,
Charging
	Party,
v.
GROSSMONT
	COMMUNITY
	COLLEGE
	DISTRICT,
Respondent.
Case
	No. 	LA-CE-196
PERB
	Decision
	No.
	117
March
	19,
	1980
Appearances: 	Daniel
	C.
	Cassidy, 	Attorney 	(Paterson
	and
Taggart)
	for
	Grossmont
	Community
	College
	District;
Charles
	R.
	Gustafson, 	Attorney
	(California
	Teachers
Association) 	for
	Grossmont
	College 	Teachers
	Association.
Before 	Gluck,
	Chairperson;
	Gonzales
	and Moore, 	Members.
DECISION
This 	matter
	is
	before 	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board) 	on
	exceptions
	by
	the
	Grossmont
College 	Teachers
	Association 	(hereafter
	GCTA)
	to 	the
	attached
hearing
	officer
1 s
	proposed
	decision 	dismissing 	unfair 	practice
charges
	against 	the
	Grossmont
	Community
	College
	District
(hereafter
	District).
	Exception 	has 	been
	taken
	to 	the 	hearing
officer's
	finding
	that 	the
	District's
	refusal 	to 	rehire
	55
	to
60
	part-time 	instructors
	who 	had 	worked 	two
	semesters 	in 	the
previous 	three 	years
	was
	not 	motivated
	by
	anti-union
	animus.
The
	hearing
	officer
	found,
	instead, 	that
	the
	District's
legitimate 	business 	motivation 	for 	not 	rehiring 	the
	part-t
instructors
	was
	to 	avoid
	potential 	overstaffing 	problems
	that
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GROSSMONT COLLEGE TEACHERS ASSOCIATION,
CTA/NEA , 	Case No. LA-CE-196
Charging Party, 	PERB Decision No. 117
v . 	March 19, 1980
GROSSMONT COMMUNITY COLLEGE DISTRICT,
Respondent.
Appearances: Daniel C. Cassidy, Attorney (Paterson and
Taggart) for Grossmont Community College District;
Charles R. Gustafson, Attorney (California Teachers
Association) for Grossmont College Teachers Association.
Before Gluck, Chairperson; Gonzales and Moore, Members.
DECISION
This matter is before the Public Employment Relations Board
(hereafter PERB or Board) on exceptions by the Grossmont
College Teachers Association (hereafter GCTA) to the attached
hearing officer's proposed decision dismissing unfair practice
charges against the Grossmont Community College District
(hereafter District) . Exception has been taken to the hearing
officer's finding that the District's refusal to rehire 55 to
60 part-time instructors who had worked two semesters in the
previous three years was not motivated by anti-union animus.
The hearing officer found, instead, that the District's
legitimate business motivation for not rehiring the part-time
instructors was to avoid potential overstaffing problems that
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might arise from the California Supreme Court's then-pending
decision in Peralta Federation of Teachers v. Peralta Community
College District and a similar suit against the Grossmont
District. 	These actions had been filed to secure tenure status
for part-time instructors with a certain level of teaching
experience.
The Board has considered the entire record of this case and
the proposed decision in light of the GCTA's exceptions. 	The
Board is in substantial agreement with the hearing officer's
findings of fact and conclusions of law. However, the Board
differs in some respects with the proposed decision, and the
decision is therefore modified herein:
I . 	The Section 3543.5 (a) Allegation.
The hearing officer held that there was no violation of
section 3543 (a) because there was no evidence that the
employees who were not retained were also engaged in activity
protected by the Educational Employment Relations Act. 2 We
124 Cal. 3d 369 (May 25, 1979) .
2EERA is codified at Government Code section 3540,
et seq. All statutory references in this decision are to the
Government Code. The charging party has alleged violations of
section 3543.5, which provides, in relevant part:
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
N
might 	arise 	from 	the 	California 	Supreme 	Court's 	then-pending
decision 	in 	Peralta Federation 	of 	Teachers 	v. 	Peralta Community
College 	District1 	and 	a 	similar 	suit 	against 	the 	Grossmont
District. 	These 	actions 	had 	been 	filed 	to 	secure 	tenure 	status
for 	part-time 	instructors 	with 	a 	certain 	level 	of 	teaching
experience.
The 	Board 	has 	considered 	the 	entire 	record 	of 	this 	case 	and
the 	proposed 	decision 	in 	light 	of 	the 	GCTA's 	exceptions. 	The
Board 	is 	in 	substantial 	agreement 	with 	the 	hearing 	officer's
findings 	of 	fact 	and 	conclusions 	of 	law. 	However, 	the 	Board
differs 	in 	some 	respects 	with 	the 	proposed 	decision, 	and 	the
decision 	is 	therefore 	modified 	herein:
I. 	The 	Section 	3543.S(a) 	Allegation.
The 	hearing 	officer 	held 	that 	there 	was 	no 	violation 	of
section 	3543(a) 	because 	there 	was 	no 	evidence 	that 	the
employees 	who 	were 	not 	retained 	were 	also 	engaged 	in 	activity
protected 	by 	the 	Educational 	Employment 	Relations 	Act.2 	We
124 	Cal.3d 	369 	(May 	25, 	1979).
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540,
et 	seq. 	All 	statutory 	references 	in 	this 	decision 	are 	to 	the
Government 	Code. 	The 	charging 	party 	has 	alleged 	violations
section 	3543.5, 	which 	provides, 	in 	relevant 	part:
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
2

affirm that the Association has not demonstrated any threshold
connection between the action of the employer and protected
rights of employees under EERA.
II. 	The Section 3543.5 (b) Allegation.
We also affirm the hearing officer's dismissal of the
section 3543.5 (b) charge on the grounds that there was no
evidence introduced that the employees were members of any unit
represented by the Association (or members of the Association
itself) and that there was no evidence of discriminatory
conduct against the employee organization in connection with
any right of representation protected by EERA. In this regard,
the Board expressly disavows the hearing officer's comments on
burden of proof. (See p. 7, fn. 5 of the proposed decision. )
In our view, the charging party has the initial burden of
showing a harmful nexus between a right protected by EERA and
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.
(c) Refuse or fail to meet and negotiate in
good f 	th an exclusive representative.
(d) Dominate or interfere with the
formation or administration of any employee
organization, or contribute financial or
other support to it, or in any way encourage
employees to join any organization in
preference to another.
3
affirm
	that
	the 	Association
	has
	not 	demonstrated
	any
	threshold
connection
	between
	the
	action
	of 	the
	employer
	and
	protected
rights
	of
	employees 	under
	EERA.
II.
	The
	Section
	3543.S(b)
	Allegation.
We
	also
	affirm
	the 	hearing
	officer's
	dismissal 	of 	the
section
	3543.S(b)
	charge
	on
	the
	grounds
	that
	there
	was
	no
evidence 	introduced
	that
	the
	employees
	were
	members
	of
	any
	unit
represented
	by
	the
	Association
	(or
	members
	of 	the 	Association
itself)
	and
	that
	there
	was 	no
	evidence
	of 	discriminatory
conduct
	against
	the
	employee
	organization 	in 	connection 	with
any
	right
	of
	representation 	protected
	by
	EERA.
	In
	this
	regard,
the
	Board
	expressly
	disavows
	the 	hearing
	officer's
	comments
	on
burden
	of 	proof.
	(Seep.
	7, 	fn.
	5
of 	the
	proposed
	decision.)
In 	our 	view,
	the
	charging
	party
	has
	the
	initial
	burden
	of
showing
	a
	harmful 	nexus 	between
	a
	right
	protected
	by
	EERA
	and
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.
(
C) 	Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
good aith wi	
ith
	with
	an
	exclusive 	representative.
(d) 	Dominate
	or
	interfere
	with 	theformation 	or
	administration 	of
	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to
	it,
	or 	in
	any 	way
	encourageemployees
	to 	join
	any
	organization 	in
preference 	to 	another.
3

the respondent's actions; but, contrary to the hearing
officer's suggestion, the charging party does not have the
burden of going forward with evidence at the outset of its case
that would overcome affirmative defenses available to the
respondent. In this case, the Association simply failed to
establish by a preponderance of the evidence that the
District's action denied the Association any of its statutory
rights, regardless of defenses put forward by the employer.
III. 	The Section 3543.5 (c) Allegation.
At the close of the GCTA's case-in-chief, the hearing
officer granted the District's motion to dismiss the
subdivision (c) allegation, basing his ruling on the holding in
Hanford High School Federation of Teachers (6/27/78) PERB
Decision No. 58. (See p. 2, fn. 2 of proposed decision. ) In
Hanford the Board rejected an attempt by a non-exclusive,
minority representative to pursue an unfair practice case that
would interfere with the meet and negotiate right of an already
recognized exclusive representative. Here, we would dismiss
the refusal to negotiate charge, but for reasons
distinguishable from those advanced in Hanford. At the time of
the alleged unlawful acts in this case, GCTA was not the
3Board Rule 32178 (8 Cal. Admin. Code, sec. 32178) states:
The charging party shall prove the charge by
a preponderance of the evidence in order to
prevail.
the 	respondent's 	actions; 	but, 	contrary 	to 	the 	hearing
officer's 	suggestion, 	the 	charging 	party 	does 	not 	have 	the
burden 	of 	going 	forward 	with 	evidence 	at 	the 	outset 	of 	its 	case
that 	would 	overcome 	affirmative 	defenses 	available 	to 	the
respondent. 	In 	this 	case, 	the 	Association 	simply 	failed 	to
establish 	by 	a 	preponderance 	of 	the 	evidence3 	that 	the
District's 	action 	denied 	the 	Association 	any 	of 	its 	statutory
rights, 	regardless 	of 	defenses 	put 	forward 	by 	the 	employer.
III. 	The 	Section 	3543.S(c) 	Allegation.
At 	the 	close 	of 	the 	GCTA's 	case-in-chief, 	the 	hearing
officer 	granted 	the 	District's 	motion 	to 	dismiss 	the
subdivision 	(c) 	allegation, 	basing 	his 	ruling 	on 	the 	holding 	in
Hanford 	High 	School 	Federation 	of 	Te~~her~ 	(6/27/78) 	PERB
Decision 	No. 	58. 	(Seep. 	2, 	fn. 	2 of 	proposed 	decision.) 	In
Hanford 	the 	Board 	rejected 	an 	attempt 	by 	a 	non-exclusive,
minority 	representative 	to 	pursue 	an 	unfair 	practice 	case 	that
would 	interfere 	with 	the 	meet 	and 	negotiate 	right 	of 	an 	already
recognized 	exclusive 	representative. 	Here, 	we 	would 	dismiss
the 	refusal 	to 	negotiate 	charge, 	but 	for 	reasons
distinguishable 	from 	those 	advanced 	in Hanford. 	At 	the 	time 	of
the 	leged 	unlawful 	acts 	in 	this 	case, 	GCTA was 	not 	t
3 Board 	Ru 	32178 	(8 	Cal. 	Admin. 	Code, 	sec. 	32178) 	states:
The 	charging 	party 	shall 	prove 	the 	charge 	by
a 	preponderance 	of 	the 	evidence 	in 	order 	to
prevail.
4

exclusive representative, nor was any other employee
organization, and the employer was not obliged to "meet and
negotiate. "4 Further, there is no indication in the record
that GCTA made any request to negotiate before or after it was
certified as the exclusive representative.
ORDER
Upon the findings of fact, conclusions of law and the
entire record in this case, except as hereinabove modified, it
is ORDERED that the unfair practice charge filed by the
Grossmont College Teachers Association against the Grossmont
Community College District alleging violation of section
3543.5 (a) , (b) , (c) , and (d) is hereby DISMISSED.
By :
Hr'GlJck}
Barbara D. Moore, Member
Section 3543.3 sets forth the employer's duty to
negotiate:
A public school employer . 	. shall meet
and negotiate with and only with
representatives of employee organizations
selected as exclusive representatives . .
5
exclusive
	representative,
	nor
	was 	any
	other
	employee
organization,
	and
	the
	employer
	was
	not
	obliged
	to
	"meet 	and
negotiate."4 	Further, 	there
	is
	no
	indication
	in 	the 	record
that
	GCTA
	made 	any
	request 	to 	negotiate 	before 	or
	after
	it
	was
certified
	as
	the 	exclusive
	representative.
ORDER
Upon
	the
	findings 	of
	fact,
	conclusions
	of
	law
	and
	the
entire
	record 	in
	this
	case,
	except 	as 	hereinabove 	modified,
	it
is
	ORDERED
	that
	the
	unfair 	practice
	charge
	filed
	by
	the
Grossmont
	College 	Teachers
	Association
	against
	the
	Grossmont
Community
	College
	District
	alleging
	violation
	of
	section
3543.5
(a),
	(b),
	(c),
	and 	(d)
	is
	hereby
	DISMISSED.
By:
Harry Gluck, Chairperson	
Chair
per
so\ 	Kaymond J. Gonzales, Member
Barbara
	D.
	Moore, 	Member
4section
	3543.3
	sets 	forth 	the 	employer's 	duty 	to
negotiate:
A
public 	school 	employer
	...
	shall
	meet
and
	negotiate
	with 	and
	only 	with
representatives 	of 	employee
	organizations
selected 	as 	exclusive 	representatives
	...
5

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
GROSSMONT COLLEGE TEACHERS
ASSOCIATION,
Unfair Practice
Charging Party, 	Case No. LA-CE-196
v .
GROSSMONT COMMUNITY COLLEGE 	PROPOSED DECISION
DISTRICT, (8-18-78)
Respondent.
Appearances: 	Daniel C. Cassidy, Attorney (Paterson and
Taggart) for Grossmont Community College District; Charles R.
Gustafson, Attorney for Grossmont College Teachers Association.
Before Bruce Barsook, Hearing Officer.
PROCEDURAL HISTORY
On October 24, 1977, the Grossmont College Teachers
Association (hereafter Association) filed an unfair practice
charge against the Grossmont Community College District
(hereafter District) alleging that the District's refusal to
rehire part-time community college instructors who had taught
two semesters out of the previous five semesters violated
section 3543.5 (a) , (b) and (d) of the Educational Employment
Relations Act (hereafter EERA) .
The District filed its Answer on November 30, 1977 and a
Motion to Dismiss on December 20, 1977.
After an informal settlement conference proved
unsuccessful, a formal hearing on the matter was held
Gov. Code sec. 3540 et. seq. All section references are
to the Government Code unless otherwise specified.
STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GROSSMONT 	COLLEGE 	TEACHERS
ASSOCIATION,
Charging 	Party,
v.
GROSSMONT 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Unfair 	Practice
Case 	No. 	LA-CE-196
PROPOSED 	DECISION
(8-18-78)
Appearances: 	Daniel 	C. 	Cassidy, 	Attorney 	(Paterson 	and
Taggart) 	for 	Grossmont 	Community 	College 	District; 	Charles 	R.
Gustafson, 	Attorney 	for 	Grossmont 	College 	Teachers 	Association.
Before 	Bruce 	Barsook, 	Hearing 	Officer.
PROCEDURAL 	HISTORY
On 	October 	24, 	1977, 	the 	Grossmont 	College 	Teachers
Association 	(hereafter 	Association) 	filed 	an 	unfair 	practice
charge 	against 	the 	Grossmont 	Community 	College 	District
(hereafter 	District) 	alleging 	that 	the 	District's 	refusal 	to
rehire 	part-time 	community 	college 	instructors 	who 	had 	taught
two 	semesters 	out 	of 	the 	previous 	five 	semesters 	violated
section 	3543. 5 (a), 	(b) 	and 	(d) 	of 	the 	Educational 	Employment
Relations 	Act 	(hereafter 	EERA) • 1
The 	District 	filed 	its 	Answer 	on 	November 	30, 	1977 	and 	a
Motion 	to 	Dismiss 	on 	December 	20, 	1977.
After 	an 	informal 	settlement 	conference 	proved
unsuccessful, 	a 	formal 	hearing 	on 	the 	matter 	was 	held
lGov. 	Code 	sec. 	3540 	et. 	seq. 	All 	section 	references 	are
to 	the 	Government 	Code 	unless 	otherwise 	specified.

March 27, 1978. At the commencement of the hearing, the
Association amended its charge to allege a violation of section
3543.5 (c) while dropping its allegation of a subdivision (d)
charge.
At the close of the Association's case in chief, the
hearing officer granted the District's motion to dismiss the
subdivision (c) allegation.
ISSUES
1 . 	Whether the District by refusing to rehire part-time
instructors who had taught two semesters out of the previous
five semesters interfered with, restrained or coerced these
employees because of their exercise of rights guaranteed by the
EERA. (Section 3543.5 (a) .)
2. Whether the above action denied to the Association
rights guaranteed to them by the EERA. (Section 3543.5(b) .)
2The reasons for my ruling are as follows:
The evidence demonstrated that the Association
was certified as the exclusive representative on
October 12, 1977. The District's decision not to
rehire the part-time instructors in issue was
communicated on May 9, 1977 (for the fall 1977
semester ) and October 7, 1977 (for the spring
1978 semester) . A District is under no
obligation to meet and negotiate with a
non-exclusive representative. Hanford Joint
Union High School District (6/27/78) PERB
Decision No. 58. Furthermore, there is no
evidence indicating that the Association
requested the District to meet and negotiate with
it over this issue nor is there evidence
indicating that the action taken in October of
1977 was anything other than a continuation of
existing District policy.
2
March 	27, 	1978. 	At 	the 	commencement 	of 	the 	hearing, 	the
Association 	amended 	its 	charge 	to 	allege 	a 	violation 	of 	section
3543.S(c) 	while 	dropping 	its 	allegation 	of 	a 	subdivision 	(d)
charge.
At 	the 	close 	of 	the 	Association's 	case 	in 	chief, 	the
hearing 	officer 	granted 	the 	District's 	motion 	to 	dismiss 	the
subdivision 	(c) 	allegation. 2
ISSUES
1. 	Whether 	the 	District 	by 	refusing 	to 	rehire 	part-time
instructors 	who 	had 	taught 	two 	semesters 	out 	of 	the 	previous
five 	semesters 	interfered 	with, 	restrained 	or 	coerced 	these
employees 	because 	of 	their 	exercise 	of 	rights 	guaranteed 	by 	the
EERA. 	(Section 	3543. 5 (a).)
2. 	Whether 	the 	above 	action 	denied 	to 	the 	Association
rights 	guaranteed 	to 	them 	by 	the 	EERA. 	(Section 	3 5 4 3. 5 ( b) • )
2The 	reasons 	for 	my 	ruling 	are 	as 	follows:
The 	evidence 	demonstrated 	that 	the 	Association
was 	certified 	as 	the 	exclusive 	representative 	on
October 	12, 	1977. 	The 	District's 	decision 	not 	to
rehire 	the 	part-time 	instructors 	in 	issue 	was
communicated 	on 	May 	9, 	1977 	(for 	the 	fall 	1977
semester) 	and 	October 	7, 	1977 	(for 	the 	spring
1978 	semester). 	A District 	is 	under 	no
obligation 	to 	meet 	and 	negotiate 	with 	a
non-exclusive 	representative. 	Hanford 	Joint
Union 	High 	School 	District 	(6/27/78) 	PERB
Decision 	No. 	58. 	Furthermore, 	there 	is 	no
evidence 	indicating 	that 	the 	Association
requested 	the 	District 	to 	meet 	and 	negotiate 	with
it 	over 	this 	issue 	nor 	is 	there 	evidence
indicating 	that 	the 	action 	taken 	in 	October 	of
1977 	was 	anything 	other 	than 	a 	continuation 	of
existing 	District 	policy.
2

FINDINGS OF FACT
The Grossmont Community College District has an ADA of
10,000 students.
The Association represents a unit of approximately 500
certificated employees. The unit includes full-time
instructors as well as department chairpersons and part-time
instructors who have taught at least three semesters out of the
prior six semesters inclusive.
In August of 1976, the Grossmont College Federation of
Teachers filed a lawsuit against the District regarding
part-time employee's tenure. The issue in the case was whether
part-time employees who had taught three semesters or more in a
three-year period should be considered probationary employees
and thereby obtain reemployment rights.
On October 19, 1976, a superior court judge ruled that the
controverted part-time instructors were not entitled to
permanent status. Subsequent to that, a rehearing was granted
and on March 31, the judge, by letter to the parties, reversed
his prior ruling. On May 31, after another rehearing, the
judge decided to take the case off calendar pending a
determination by the California Supreme Court in Peralta
Federation of Teachers v. Peralta Community College District
(1977) 69 Cal. App. 3d 281, hearing granted.
3Following the PERB's decision in Los Rios Community
College District (6/9/77) EERB Decision No. 18, the District,
the Grossmont Federation of Teachers and the Grossmont Teachers
Association in a consent election agreement agreed upon
appropriateness of the above unit. Although patterned after
the Los Rios determination, the parties in this District
decided to include department chairpersons in the unit.
3
FINDINGS
	OF
	FACT
The
	Grossmont
	Community
	College
	District
	has
	an
	ADA
	of
10,000
	students.
The
	Association
	represents
	a
	unit
	of 	approximately
	500
certificated
	employees.
	The
	unit
	includes
	full-time
instructors
	as
	well 	as 	department
	chairpersons
	and
	part-time
instructors
	who
	have
	taught
	at
	least
	three
	semesters 	out 	of 	the
prior 	six
	semes
	ers
	inc
	usive.
.	. 	t 	. 	1 	. 	3
In
	August
	of
	1976,
	the
	Grossmont
	College
	Federation
	of
Teachers
	filed
	a
	lawsuit 	against
	the
	District
	regarding
part-time
	employee's
	tenure.
	The
	issue 	in
	the 	case
	was
	whether
part-time
	employees
	who
	had
	taught 	three
	semesters 	or
	more
	in
	a
three-year 	period
	should
	be
	considered 	probationary
	employees
and
	thereby
	obtain
	reemployment
	rights.
On
	October
	19,
	1976,
	a
	superior 	court
	judge
	ruled
	that
	the
controverted 	part-time 	instructors
	were
	not
	entitled
	to
permanent
	status.
	Subsequent
	to
	that,
	a
	rehearing
	was
	granted
and 	on 	March
	31, 	the 	judge,
	by
	letter
	to 	the
	parties,
	reversed
his 	prior 	ruling.
	On 	May
	31,
	after
	another 	rehearing, 	the
judge 	decided 	to 	take 	the 	case
	off 	calendar
	pending
	a
determination
	by
	the 	California
	Supreme
	Court 	in
	Peralta
Federation 	of 	Teachers 	v.
	Peralta
	Community
	College
	District
(1977)
	69
	Cal.App.3d 	281,
	hearing 	granted.
3Following 	the
	PERB 1 s
	decision 	in
	Los 	Rios 	Community
College 	District
	(6/9/77)
	EERB
	Decision
	No.
	18, 	the
	District,the 	Grossmont 	Federation 	of 	Teachers 	and 	the 	Grossmont 	Teachers
Association 	in
	a
	consent 	election 	agreement 	agreed 	upon
appropriateness 	of 	the 	above
	unit. 	Although 	patterned 	afterthe 	Los 	Rios 	determination, 	the 	parties 	in 	this 	Districtdecided 	to 	include 	department 	chairpersons 	in 	the 	unit.
3

In the spring of 1977, Trudy Hill, vice-president for
instructional service, recommended to the president of the
District that because of the tenure litigation part-time
instructors who had worked two semesters out of the last five
semesters not be rehired for the fall 1977 semester.
It was Ms. Hill's understanding that if the Supreme Court
ruled in favor of the teachers, the ruling would be
retroactive. This would mean that the approximately 200
part-time instructors who had already taught three or more
semesters would obtain reemployment rights. Consequently,
Ms. Hill and the District decided that these employees should
be rehired. There were an additional 55-60 part-time
instructors who had taught two semesters and if rehired for a
third semester, would also be eligible for reemployment rights
if the Federation won its lawsuit. To retain flexibility in
scheduling, it was Ms. Hill's determination that these 55-60
individuals should not be retained.
On May 1, 1977, the District president told Ms. Hill that a
final decision had been made not to rehire these part-time
instructors. Ms. Hill relayed this decision to department
chairpersons attending an instructional council meeting on
May 9. Ms. Hill told the department chairpersons that the
decision was based upon the District's concern over the tenure
4The instructional council is composed of all department
chairpersons, all of the instructional administration and some
instructional coordinators. It is an advisory committee to
Ms. Hill.
In
	the
	spring 	of
	1977,
	Trudy
	Hill,
	vice-president
	for
instructional 	service,
	recommended
	to
	the
	president
	of
	the
District
	that
	because
	of
	the 	tenure
	litigation
	part-time
instructors
	who
	had 	worked
	two
	semesters 	out
	of
	the
	last
	five
semesters
	not
	be
	rehired
	for 	the
	fall
	1977
	semester.
It
	was 	Ms.
	Hill's
	understanding
	that
	if
	the
	Supreme
	Court
ruled
	in
	favor
	of
	the
	teachers,
	the
	ruling
	would 	be
retroactive.
	This
	would
	mean
	that
	the 	approximat2ly
	200
part-time 	instructors
	who
	had
	already 	taught 	three
	or
	more
semesters
	would
	obtain
	reemployment
	rights.
	Consequently,
Ms.
	Hill
	and
	the
	District
	decided
	that
	these
	employees
	should
be
	rehired.
	There
	were 	an
	additional
	55-60
	part-time
instructors
	who
	had
	taught
	two
	semesters
	and
	if
	rehired
	for
	a
third
	semester,
	would
	also
	be
	eligible
	for
	reemployment
	rights
if
	the
	Federation
	won
	its
	lawsuit.
	To
	retain
	flexibility
	in
scheduling,
	it
	was 	Ms.
	Hill's
	determination
	that
	these
	55-60
individuals
	should 	not
	be
	retained.
On 	May	
1,
	1977,
	the
	District
	president 	told
	Ms.
	Hill 	that
	a
final
	decision
	had 	been
	made
	not 	to
	rehire
	these
	part-time
instructors.
	Ms.
	Hill
	relayed
	this
	decision 	to 	department
chairpersons 	attending
	an
	instructional
	counci1
4
meeting
	on
May
	9.
	Ms.
	Hill 	told 	the 	department 	chairpersons 	that 	the
decision
	was
	based
	upon
	the
	District's
	concern 	over 	the 	tenure
4The
	instructional 	council 	is
	composed
	of
	all
	department
chairpersons,
	all
	of 	the 	instructional 	administration 	and
	some
instructional 	coordinators. 	It 	is
	an
	advisory 	committee 	to
Ms.
	Hill.
4

suit and its possible repercussions if part-time instructors
were given reemployment rights. Ms. Hill further explained to
the members of the instructional council that if they could not
find qualified replacements, exceptions would be granted. 	The
deans were asked for written justification regarding any
exceptions, and MS. Hill approved approximately ten exceptions
each semester.
On October 7, 1977, Ms. Hill sent a memorandum to the
deans, with copies to the department chairpersons, indicating
that for the spring 1978 semester the District would continue
its policy of nonretention of part-time instructors who had
taught two semesters out of the previous five semesters pending
a decision from the California Supreme Court in the Peralta
case .
Approximately 50 part-time employees were affected by the
District's decision not to rehire part-time instructors who had
taught two semesters out of the last five semesters.
CONCLUSIONS OF LAW
I. 	The Section 3543.5 (a) Allegation
The Association alleges that the part-time employees in
issue are being denied the opportunity to be represented by the
Association solely because they have reached the employment
status where reemployment for one more semester would put them
in the unit. This denial of reemployment in the absence of a
business justification, the Association argues, violates
section 3543.5 (a) .
5
suit 	and 	its 	possible 	repercussions 	if 	part-time 	instructors
were 	given 	reemployment 	rights. 	Ms. 	Hill 	further 	explained 	to
the 	members 	of 	the 	instructional 	council 	that 	if 	they 	could 	not
find 	qualified 	replacements, 	exceptions 	would 	be 	granted. 	The
deans 	were 	asked 	for 	written 	justification 	regarding 	any
exceptions, 	and 	Ms. 	Hill 	approved 	approximately 	ten 	exceptions
each 	semester.
On 	October 	7, 	1977, 	Ms. 	Hill 	sent 	a 	memorandum 	to 	the
deans, 	with 	copies 	to 	the 	department 	chairpersons, 	indicating
that 	for 	the 	spring 	1978 	semester 	the 	District 	would 	continue
its 	policy 	of 	nonretention 	of 	part-time 	instructors 	who 	had
taught 	two 	semesters 	out 	of 	the 	previous 	five 	semesters 	pending
a 	decision 	from 	the 	California 	Supreme 	Court 	in 	the 	Peralta
case.
Approximately 	50 	part-time 	employees 	were 	affected 	by 	the
District's 	decision 	not 	to 	rehire 	part-time 	instructors 	who 	had
taught 	two 	semesters 	out 	of 	the 	last 	five 	semesters.
CONCLUSIONS 	OF 	LAW
I. 	The 	Section 	3543.S(a) 	Allegation
The 	Association 	alleges 	that 	the 	part-time 	employees 	in
issue 	are 	being 	denied 	the 	opportunity 	to 	be 	represented 	by 	the
Association 	solely 	because 	they 	have 	reached 	the 	employment
status 	where 	reemployment 	for 	one 	more 	semester 	would 	put 	them
in 	the 	unit. 	This 	denial 	of 	reemployment 	in 	the 	absence 	of 	a
business 	justification, 	the 	Association 	argues, 	violates
section 	3543.S(a).
5

Section 3543.5 (a) provides that it shall be an unfair
practice for a public school employer to:
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.
[Emphasis added . ]
Significantly, the section provides that the interference,
coercion, discrimination or other specified conduct must be
done because of an employee's exercise of a right guaranteed by
the EERA. It follows that non-retention, without evidence that
an employee is engaged in activity protected by the EERA, is
not a violation of section 3543.5(a). Since there was no
evidence presented indicating that part-time instructors who
had taught two semesters out of the last five semesters were
exercising any rights guaranteed by the EERA, section 3543.5 (a)
has not been violated.
II. The Section 3543.5 (b) Allegation
The Association alleges that the District's refusal to
rehire the part-time instructors denies the Association the
opportunity to represent such part-time employees and therefore
violates section 3543.5 (b) .
Section 3543.5 (b) provides that it shall be an unfair
practice for a public school employer to:
Deny to employee organizations rights
guaranteed to them by this chapter.
Although the Association does not specify what particular
right guaranteed by the EERA has been infringed, the argument
that the Association has been denied the opportunity to
Section
	3543.S(a)
	provides
	that
	it
.shall
	be
	an
	unfair
practice
	for
	a
	public
	school
	employer
	to:
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.
[Emphasis
	added.]
Significantly,
	the
	section
	provides
	that
	the
	interference,
coercion, 	discrimination
	or
	other
	specified
	conduct
	must
	be
done
	because
	of
	an
	employee's
	exercise 	of
	a
	right
	guaranteed
	by
the
	EERA.
	It
	follows
	that
	non-retention,
	without 	evidence
	that
an
	employee
	is
	engaged
	in
	activity
	protected
	by
	the
	EERA,
	is
not
	a
	violation
	of 	section
	3543.S(a).
	Since
	there
	was
	no
evidence 	presented
	indicating 	that 	part-time
	instructors
	who
had
	taught
	two
	semesters 	out 	of
	the
	last
	five
	semesters
	were
exercising
	any
	rights
	guaranteed
	by	
the	
EERA,
	section
	3543.S(a)
has 	not
	been
	violated.
II.
	The
	Section
	3543.S(b)
	Allegation
The
	Association
	alleges 	that
	the
	District's
	refusal
	to
rehire
	the
	part-time 	instructors
	denies 	the 	Association 	the
opportunity 	to 	represent
	such
	part-time
	employees
	and
	therefore
violates 	section 	3543.S(b).
Section 	3543.S(b) 	provides
	that
	it
	shall	
be 	an
	unfair
practice	
for	
a
	public 	school	
employer	
to:
Deny
	to 	employee	
organizations 	rightsguaranteed 	to	
them 	by
	this 	chapter.
Although 	the 	Association 	does 	not 	specify
	what
	particular
right 	guaranteed 	by 	the
	EERA
	has 	been	
infringed, 	the 	argument
that 	the 	Association 	has 	been 	denied 	the 	opportunity 	to
6

represent these part-time employees appears to be based upon
section 3543.1(a) , which provides:
Employee organizations shall have the right
to represent their members in their
employment relations with public school
employers, except that once an employee
organization is recognized or certified as
the exclusive representative of an
appropriate unit pursuant to Section 3544.1
or 3544.7, respectively, only that employee
organization may represent that unit in .
their employment relations with the public
school employer . Employee organizations may
establish reasonable restrictions regarding
who may join and may make reasonable
provisions for the dismissal of individuals
from membership.
However, the employees in issue are not members of the unit
which the Association represents nor is there any evidence that
these employees are members of the Association.
Furthermore, while the Association may have a legitimate
interest in seeing that the District does not discriminatorily
prevent employees from entering the negotiating unit, the
Association has failed to show that such discriminatory conduct
occurred. 	Rather, the facts indicate that the District had
a legitimate reason for its policy of not rehiring part-time
instructors who had taught two semesters out of the last five
semesters--its concern over the loss of scheduling flexibility
if the part-time tenure suit was won by the teachers.
For the above reasons, the Association has failed to carry
its burden of showing by a preponderance of the evidence that
The Association's attempt to shift the burden to the
District to justify its action is misplaced. The burden of
proof is on the Association to show that the District's action
is unjustified or that the action taken is inherently
destructive of employee interest.
represent
	these
	part-time
	employees
	appears 	to
	be
	based
	upon
section 	3543.l(a),
	which
	provides:
Employee
	organizations
	shall
	have
	the
	right
to
	represent
	their
	members
	in
	their
employment
	relations
	with
	public
	school
employers,
	except
	that
	once
	an
	employee
organization
	is
	recognized
	or
	certified
	as
the
	exclusive
	representative
	of
	an
appropriate 	unit
	pursuant 	to 	Section
	3544.1
or 	3544.7,
	respectively,
	only
	that
	employee
organization
	may
	represent
	that 	unit
	in,
their
	employment
	relations
	with
	the
	public
school
	employer.
	Employee
	organizations
	may
establish
	reasonable
	restrictions
	regarding
who 	may
	join
	and
	may
	make
	reasonable
provisions
	for 	the
	dismissal 	of 	individuals
from
	membership.
However,
	the
	employees
	in 	issue 	are 	not
	members
	of
	the
	unit
which
	the 	Association 	represents
	nor
	is
	there
	any
	evidence
	that
these
	employees
	are
	members
	of
	the
	Association.
Furthermore, 	while 	the 	Association
	may
	have
	a
	legitimate
interest
	in 	seeing
	that
	the
	District
	does
	not
	discriminatorily
prevent	
employees	
from
	entering
	the
	negotiating
	unit,
	the
Association
	has
	failed
	to
	show
	that
	such
	discriminatory
	conduct
occurrea.
5
Rather, 	the
	facts 	indicate 	that
	the
	District
	had
a
	legitimate
	reason 	for
	its
	policy 	of
	not
	rehiring 	part-time
instructors
	who
	had
	taught
	two
	semesters 	out 	of 	the
	last
	five
semesters--its
	concern 	over 	the
	loss 	of 	scheduling
	flexibility
if
	the
	part-time 	tenure
	suit
	was 	won
	by
	the
	teachers.
For
	the
	above
	reasons, 	the 	Association
	has
	failed 	to 	carry
its
	burden 	of
	showing
	by 	a
	preponderance 	of 	the 	evidence 	that
5The
	Association's 	attempt 	to
	shift
	the 	burden 	to 	the
District 	to 	justify 	its 	action 	is 	misplaced.
	The 	burden 	of
proof 	is
	on 	the 	Association 	to
	show
	that 	the 	District's 	action
is 	unjustified 	or 	that 	the 	action 	taken 	is 	inherently
destructive 	of 	employee 	interest.
7

the District's action violates section 3543.5 (b) . The
Association's charge in this matter is therefore dismissed.
PROPOSED ORDER
Based on the findings of fact, conclusions of law and the
entire record in this case, it is the proposed order that the
unfair practice charge filed by the Grossmont College Teachers
Association against the Grossmont Community College District
alleging violation of section 3543.5 (a) , (b) , (c) and (d) is
hereby DISMISSED.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final on September 11, 1978 unless a party files a timely
statement of exceptions and supporting brief within twenty (20)
calendar days following the date of service of this decision.
Such statement of exceptions and supproting brief must be
actually received by the Executive Assistant to the Board at
the headquarters office in Sacramento before the close of
in order to be	business (5:00 P.M. ) on September 7, 1978
timely filed. (See California Administrative Code, title 8,
part III, section 32135.) Any statement of exceptions and
supporting brief must be served concurrently with its filing
upon each party to this proceeding. Proof of service shall be
filed with the Board itself. See California Administrative
Code, title 8, part III, sections 32300 and 32305, as amended.
Dated : August 18, 1978
Bruce Barsook
Hearing Officer
8
the
	District's
	action
	violates
	section
	3543.5(b).
	The
Association's
	charge
	in
	this
	matter
	is
	therefore
	dismissed.
PROPOSED
	ORDER
Based
	on
	the
	findings 	of
	fact,
	conclusions
	of
	law 	and
	the
entire
	record
	in
	this
	case,
	it
	is
	the
	proposed
	order
	that
	the
unfair 	practice
	charge
	filed
	by
	the
	Grossmont
	College 	Teachers
Association 	against
	the
	Grossmont
	Community
	College
	District
alleging 	violation
	of 	section
	3543.5
(a),
	(b),
	(c) 	and
	(d)
	is
hereby
	DISMISSED.
Pursuant 	to
	California
	Administrative
	Code,
	title
	8,
part
	III,
	section
	32305,
	this
	Proposed
	Decision
	and
	Order
	shall
become
	final
	on
	September
11,
	1978
	unless
	a
	party
	files
	a
	timely
statement 	of 	exceptions
	and
	supporting
	brief
	within 	twenty
	(20)
calendar
	days
	following 	the
	date 	of 	service 	of
	this 	decision.
Such
	statement
	of 	exceptions
	and
	supproting
	brief
	must 	be
actually
	received
	by
	the 	Executive
	Assistant
	to 	the 	Board
	at
the 	headquarters
	office
	in
	Sacramento
	before 	the
	close 	of
business
	(
5:
00 	p
.M.) 	on
	September 7, 	1978
	in 	order 	to
	be
timely
	filed.
	(See
	California 	Administrative
	Code,
	title
	8,
part
	III,
	section
	32135.)
	Any
	statement 	of 	exceptions
	and
supporting
	brief
	must 	be
	served 	concurrently
	with
	its 	filing
upon
	each
	party 	to
	this
	proceeding. 	Proof 	of 	service
	shall
	be
filed
	with 	the
	Board
	itself.
	See
	California 	Administrative
Code,
	title
	8, 	part
	III,
	sections
	32300 	and 	32305, 	as 	amended.
Dated
: 	August 18, 	1978
8
Bruce 	Barsook
Hearing 	Officer