Santa Monica Unified School District (PERB 0147E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA MONICA CLASSROOM TEACHERS
ASSOCIATION ,
Charging Party, 	Case No. LA-CE-60
v . 	PERB Decision No. 147
SANTA MONICA UNIFIED SCHOOL DISTRICT, ) December 10, 1980
Respondent.
Appearances: Hirsch Adell (Reich, Adell & Crost) Attorney for
Santa Monica Classroom Association; Robert A. Siegel (0'Melveny
and Myers) Attorney for Santa Monica Unified School District.
Before Gluck, Chairperson and Moore, Member.
DECISION
The Santa Monica Unified School District (hereafter
District) has filed exceptions to the attached hearing
officer's proposed decision which holds that the District
violated section 3543.5 (a) of the Educational Employment
Relations Act (hereafter EERA) _ by reprimanding and by
JEERA is codified at Government Code section 3540,
et seq. All statutory references are to the Government Code
unless otherwise noted.
Section 3543.5 (a) provides:
It shall be unlawful for a public school
employer to:
STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SANTA MONICA CLASSROOM
	TEACHERS
ASSOCIATION,
Charging
	Party,
v.
SANTA MONICA
	UNIFIED
	SCHOOL
	DISTRICT,)
Respondent.
}
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)
)
)
)
)
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}
___________________ )
Case
	No. 	LA-CE-60
PERB
	Decision
	No.
147
December
	10,
	1980
Appearances: 	Hirsch 	Adell
	(Reich, 	Adell
	&
Crost) 	Attorney 	forSanta
	Monica
	Classroom
Association;
	Robert
	A.
	Siegel
	(O'Melveny
and 	Myers)
	Attorney 	for 	Santa
	Monica
	Unified
	School
	District.
Before 	Gluck,
	Chairperson
	and 	Moore,
	Member.
DECISION
The
	Santa
	Monica
	Unified
	School
	District
	(hereafter
District)
	has
	filed
	exceptions 	to 	the 	attached 	hearing
officer
1 s
	proposed
	decision
	which
	holds
	that
	the
	District
violated 	section
	3543.S(a)
	of 	the 	Educational
	Employment
Relations
	Act
	(hereafter
	EERA) 1 	by
	reprimanding
	and 	by
lEERA
	is	
codified 	at
	Government 	Code	
section
	3540,
et	
seq. 	All 	statutory 	references 	are 	to	
the
	Government 	Code
unless 	otherwise 	noted.
Section 	3543.S(a) 	provides:
It	
shall
	be
	unlawful 	for
	a
	public 	schoolemployer	
to:

threatening Ralph Emch, the president of the Santa Monica
Classroom Teachers Association (hereafter Association) , with
termination of his employment because of a communication he
directed to unit members on December 2, 1976. The hearing
officer did not find a separate violation of
section 3543.5 (b) . The Association did not file any
exceptions or any response.
After considering the entire record and the District's
exceptions to certain of the hearing officer's findings of
fact, the Board finds no prejudicial error and adopts them.
The Board affirms his conclusions of law regarding the
section 3543.5 (a) violation. The Board finds a concurrent
violation of section 3543.5 (b) , however, and reverses that
(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.
2section 3543.5 (b) provides:
It shall be unlawful for a public school
employer to:
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
3The hearing officer based his finding of a
section 3543.5 (a) violation on the Board's decision in
San Diegueto Union High School District (9/2/77) EERB Decision
No. 22. We base our affirmance on the Board's superseding test
in Carlsbad Unified School District (1/30/79) PERB
Decision No. 89.
N
threatening
	Ralph
	Emch,
	the
	president
	of
	the
	Santa
	Monica
Classroom
	Teachers
	Association
	(hereafter 	Association),
	with
termination
	of
	his
	employment
	because
	of
	a
	communication 	he
directed
	to
	unit
	members 	on 	December
	2,
	1976.
	The
	hearing
officer
	did 	not
	find
	a
	separate
	violation
	of
section
	3543.S(b)
. 2 	The
	Association
	did
	not
	file
	any
exceptions
	or
	any
	response.
(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.
2section 	3543.S(b) 	provides:
It
	shall
	be
	unlawful 	for
	a
	public 	school
employer
	to:
(b) 	Deny	
to
	employee
	organizations 	rights
guaranteed
	to
	them 	by
	this
	chapter.
3The
	hearing
	officer
	based
	his 	finding 	of	
a
section
	3543.S(a)
	violation
	on
	the 	Board's
	decision 	in
San
	Dieguito	
Union High 	School
	District
	(9/2/77)
	EERB
	Decision
No. 	22.
	we
	base 	our 	affirmance
	on
	the 	Board's 	superseding
	test
in 	Carlsbad 	Unified 	School
	District	
(1/30/79)	
PERB
Decision
	No.
	89.
After 	considering 	the
	entire
	record
	and
	the
	District's
exceptions	
to 	certain
	of 	the 	hearing
	officer's
	findings 	of
fact,
	the
	Board
	finds	
no	
prejudicial 	error
	and
	adopts
	them.
The
	Board
	affirms
	his
	conclusions 	of
	law
	regarding 	the
section
	3543.S(a)
	violation.3	
The
	Board
	finds
	a
	concurrent
violation 	of
	section 	3543.S(b),
	however,
	and
	reverses
	that
2

part of the hearing officer's decision which dismisses that
portion of the Association's charge. 4
ORDER
Upon the foregoing findings of fact, conclusions of law and
the entire record of this case, it is found that the
Santa Monica Unified School District violated Government Code
section 3543.5 (a) by reprimanding and by threatening
Ralph Emch, then the president of the Association, with
termination of his employment because of a protected
December 2, 1976 communication to unit members. The District's
actions towards Emch also violated section 3543.5 (b). The
Association's statutory right to represent unit members
(section 3543.1 (a) )5 includes the right to communicate with
them to enlist support for its negotiating positions. This
4In dismissing the section 3543.5 (b) violation, the
hearing officer relied on the Board's decision in Placerville
Union School District (9/18/78) PERB Decision No. 69.
decision was overruled in San Francisco Community College
District (10/12/79) PERB Decision No. 105, where the Board held
that if the same employer conduct concurrently violates more
than one unfair practice provision, it is the duty of the Board
to find more than one violation. (See Oakland Unified School
District (4/23/80) PERB Decision No. 126, at pp. 2-3,
footnote 2 and San Diego Unified School District (6/19/80) PERB
Decision No. 137, at p. 5, footnote 5.)
5section 3543.1 (a) provides in relevant part:
Employee organizations shall have the right
to represent their members in their
employment relations with public school
employers. .
W
part
	of
	the 	hearing
	officer's
	decision
	which
	dismisses
	that
portion
	of
	the
	Association's
	charge.4
ORDER
Upon
	the 	foregoing
	findings
	of
	fact,
	conclusions 	of
	law
	and
the
	entire
	record
	of
	this
	case,
	it
	is
	found
	that
	the
Santa
	Monica
	Unified
	School
	District
	violated
	Government
	Code
section
	3543.S{a)	
by 	reprimanding
	and 	by
	threatening
Ralph
	Emch,
	then 	the
	president	
of	
the 	Association,
	with
termination 	of
	his
	employment
	because
	of
	a
	protected
December
	2,
	1976
	communication
	to
	unit
	members. 	The
	District's
actions
	towards
	Emch
	also 	violated 	section
	3543.S(b).
	The
Association's 	statutory 	right
	to 	represent 	unit
	members
(section 	3543.l(a))S 	includes 	the
	right
	to
	communicate
	with
them
	to
	enlist
	support 	for
	its
	negotiating 	positions.
	This
4rn 	dismissing 	the
	section 	3543.S(b)
	violation,
	thehearing
	officer 	relied
	on
	the 	Board's 	decision 	in
	Placerville
Union
	School
	District
	(9/18/78)
	PERB
	Decision
	No.
	69. 	That	
That
decision
	was
	overruled 	in
	San
	Francisco
	Community
	College
District
	(10/12/79)
	PERB
	Decision
	No.
	105,
	where
	the
	Board
	held
that
	if
	the
	same
	employer 	conduct
	concurrently 	violates
	more
than
	one
	unfair 	practice 	provision,
	it
	is
	the 	duty 	of 	the
	Board
to 	find
	more
	than
	one
	violation.
	(See 	Oakland
	Unified 	School
District
	(4/23/80)
	PERB
	Decision
	No.
	126,
	at
	pp.
	2-3,footnote
	2 	and 	San 	Diego
	Unified 	School
	District
	(6/19/80)
	PERB
Decision
	No.
	137,
	at
	p.
	5, 	footnote
	5.)
5section 	3543.l(a) 	provides 	in	
relevant 	part:
Employee
	organizations 	shall
	have	
the
	rightto 	represent	
their	
members
	in 	their
employment
	relations
	with 	public 	schoolemployers .	
... 
3

right was denied when the District disciplined Emch, the
Association's representative, for sending the December 2, 1976
letter. IT IS HEREBY ORDERED that the District and its
representative shall :
(A) CEASE AND DESIST FROM:
(1) Imposing or threatening to impose reprisals
against Ralph Emch because of his December 2, 1976
communication to unit members.
(2) Denying the right of the Santa Monica Classroom
Teachers Association to represent unit members by disciplining
Ralph Emch for communicating with them, in his December 2, 1976
letter, to enlist support for the Association's negotiating
position.
(B) 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
(1) Remove from Ralph Emch's personnel file
Mr. Lucas' January 13, 1977 letter and all references to it.
(2) Within five (5) workdays of date of service of
this decision, post copies of the Notice attached as an
appendix hereto at all work locations at the Santa Monica
Unified School District where notices to certificated employees
customarily are placed. Such posting shall be maintained for a
period of thirty (30) consecutive workdays. Reasonable steps
right
	was
	denied
	when
	the
	District
	disciplined
	Emch,
	the
Association's 	representative,
	for
	sending
	the
	December
	2,
	1976
letter.
	IT
	IS
	HEREBY 	ORDERED
	that
	the
	District
	and
	its
representative
	shall:
(A)
	CEASE
	AND
	DESIST
	FROM:
(1)
	Imposing
	or
	threatening 	to
	impose
	reprisals
against
	Ralph
	Emch
	because
	of
	his
	December
	2,
	1976
communication
	to
	unit
	members.
(2)
	Denying
	the
	right
	of 	the 	Santa
	Monica
	Classroom
Teachers
	Association 	to 	represent 	unit
	members 	by
	disciplining
Ralph
	Emch
	for
	communicating
	with
	them,
	in 	his
	December
	2,
	1976
letter,
	to
	enlist
	support 	for 	the
	Association's 	negotiating
position.
(B)
	TAKE 	THE 	FOLLOWING
	AFFIRMATIVE
	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF THE	
EERA:
(1) 	Remove 	from 	Ralph 	Emch's
	personnel	
file
Mr.
	Lucas' 	January 	13,
	1977
	letter
	and
	all
	references 	to
	it.
(2)
	Within
	five
	(5)
	workdays
	of 	date 	of 	service 	of
this
	decision, 	post 	copies 	of 	the 	Notice
	attached 	as
	an
appendix
	hereto
	at
	all
	work
	locations
	at
	the 	Santa
	Monica
Unified 	School
	District	
where	
notices 	to
	certificated	
employees
customarily 	are 	placed.
	Such
	posting 	shall
	be	
maintained 	for	
a
period 	of 	thirty	
(30)
	consecutive
	workdays. 	Reasonable	
steps
4

should be taken to ensure that said Notices are not reduced in
size, altered, defaced or covered by any other materials; and
(3) At the end of thirty-five (35) workdays from date
of service of this decision, notify the Los Angeles Regional
Director in writing of the actions taken to comply with this
Order.
By: Barbara D. Moore, Member
UT	5
should 	be 	taken 	to 	ensure 	that 	said 	Notices 	are 	not 	reduced 	in
size, 	altered, 	defaced 	or 	covered 	by 	any 	other 	materials1 	and
(3) 	At 	the 	end 	of 	thirty-five 	(35) 	workdays 	from 	date
of 	service 	of 	this 	decision, 	notify 	the 	Los 	Angeles 	Regional
Director 	in 	writing 	of 	the 	actions 	taken 	to 	comply 	with 	this
Order.
By: 	Barbara 	D. 	Moore, 	Member 	Harry Gluck, Chairperson

APPENDIX
NOTICE TO CERTIFICATED EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-60,
Santa Monica Classroom Teachers Association v. Santa Monica
Unified School District, in which both parties had the right to
participate, it has been found that the Santa Monica Unified
School District violated section 3543.5 (a) by reprimanding and
by threatening Ralph Emch with termination of his employment
because of his December 2, 1976 communication to unit members.
The District also violated section 3543.5 (b) in that its
conduct denied the Association its right to represent unit
members by disciplining Ralph Emch for communicating with them,
in his December 2, 1976 letter, to enlist support for the
Association's negotiating position.
As a result of this conduct, we have been ordered to post
this Notice, and we will also abide by the following:
(1) WE WILL CEASE AND DESIST FROM:
n any like or related manner imposing or
threatening to impose reprisals on Ralph Emch, or otherwise
interfering with, restraining, or coercing Ralph Emch because
of his December 2, 1976 communication to unit members.
(b) In any like or related manner denying the right
of the Santa Monica Classroom Teachers Association to represent
unit members by disciplining Ralph Emch for communicating with
them, in his December 2, 1976 letter, to enlist support for the
Association's negotiating position.
WE WILL TAKE THE FOLLOWING AFFIRMATIVE ACTIONS WHICH
ARE NECESSARY TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL
EMPLOYMENT RELATIONS ACT:
1
APPENDIX
NOTICE
	TO
	CERTIFICATED
	EMPLOYEES
POSTED
	BY
	ORDER OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of 	the
	State
	of 	California
After
	a
	hearing 	in 	Unfair
	Practice
	Case
	No. 	LA-CE-60,
Santa
	Monica
	Classroom
	Teachers
	Association 	v. 	Santa
	Monica
Unified
	School
	District,
	in
	which
	both
	parties
	had
	the
	right
	to
participate,
	it
	has 	been 	found
	that
	the
	Santa
	Monica
	Unified
School
	District
	violated 	section
	3543.S(a)
	by
	reprimanding
	andby
	threatening
	Ralph
	Emch
	with
	termination 	of
	his
	employment
because 	of
	his
	December
	2,
	1976
	communication
	to
	unit
	members.The
	District
	also 	violated 	section
	3543.S(b)
	in
	that
	its
conduct 	denied 	the 	Association
	its
	right
	to 	represent
	unit
members	
by	
disciplining
	Ralph
	Emch
	for
	communicating
	with
	them,
in 	his
	December
	2,
	1976
	letter,
	to
	enlist
	support 	for 	the
Association's 	negotiating 	position.
As 	a
	result
	of
	this
	conduct,
	we
	have 	been
	ordered
	to 	post
this
	Notice,
	and
	we
	will 	also
	abide 	by	
the 	following:
(1)
	WE
	WILL 	CEASE
	AND
	DESIST
	FROM:
(a) I	
In
	any
	like
	or
	related
	manner 	imposing
	or
threatening 	to
	impose
	reprisals
	on 	Ralph
	Emch,
	or 	otherwise
interfering
	with,
	restraining,
	or 	coercing
	Ralph
	Emch
	because
of 	his
	December
	2,
	1976 	communication
	to 	unit
	members.
{a)
(b)	
In
	any	
like	
or 	related	
manner 	denying 	the	
rightof 	the	
Santa Monica
	Classroom Teachers 	Association 	to 	represent
unit
	members	
by	
disciplining
	Ralph
	Emch
	for
	communicating 	withthem,
	in 	his
	December
	2,
	1976
	letter,
	to
	enlist
	support 	for 	the
Association's 	negotiating 	position.
(2)	
WE
	WILL
	TAKE 	THE 	FOLLOWING	
AFFIRMATIVE 	ACTIONS 	WHICHARE 	NECESSARY TO
	EFFECTUATE 	THE
	POLICIES
	OF 	THE 	EDUCATIONALEMPLOYMENT
	RELATIONS 	ACT:
(2}
1

(a) Remove from Ralph Emch's personnel file
Mr. Lucas' January 13, 1977 letter and all references to it or
to Ralph Emch's December 2, 1976 communication to unit members.
SANTA MONICA UNIFIED
SCHOOL DISTRICT
Dated:
Authorized Agent
IT
	MUST 	REMAIN 	POSTED
	AT
THIRTY 	(30)
	WORKDAYS 	FROM THE 	DATE 	OF 	POST
	AND MUST
REDUCED
	IN SIZE,
	DEFACED, 	ALTERED
	OR COVERED 	BY ANY
	OTHER
MATERIALS.
2
(a)
	Remove
	from
	Ralph 	Emch's
	personnel
	file
Mr.
	Lucas'
	January 	13,
	1977
	letter
	and
	all
	references 	to
	it
	or
to
	Ralph 	Emch's
	December
	2,
	1976
	communication
	to 	unit
	members.
SANTA MONICA
	UNIFIED
SCHOOL
	DISTRICT
Dated: 	By
Authorized
	Agent
-------------
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY (30) WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY OTHER
MATERIALS.
By_--=__,...,.......__,,.----..--=--~---
THIS
	AN
	IAL 	NOTICE.
NOT BE
2

PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
SANTA MONICA CLASSROOM TEACHERS
Unfair Practice
Charging Party, 	Case No. LA-CE-60
SANTA MONICA UNIFIED SCHOOL
DISTRICT, 	PROPOSED DECISION
Respondent. 	(12/21/78)
Appearances: 	Hirsch Adell (Reich, Adell & Crost) , Attorney for
Santa Monica Classroom Teachers Association; Robert A. Siegel
(O'Melveny and Myers) , Attorney for Santa Monica Unified School
District.
Before David Schlossberg, Hearing Officer.
PROCEDURAL HISTORY
On January 18, 1977, the Santa Monica Classroom Teachers
Association (hereafter Association) filed an unfair practice
charge with the Public Employment Relations Board (hereafter
PERB) _ against the Santa Monica Unified School District
(hereafter District) alleging that the District had violated
section 3543.5(a) , (b) and (c) of the Educational Employment
Relations Act (hereafter EERA) . 2
The District filed its answer on February 9, 1977.
1Prior to January 1, 1978, the PERB was named the
Educational Employment Relations Board.
2Government Code sec. 3540 et seq. Unless otherwise
indicated, all references are to the Government Code.
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF
	THE
	STATE
	OF
	CALIFORNIA
SANTA MONICA 	CLASSROOM
	TEACHERS
ASSOCIATION ,
Charging
	Party,
v .
SANTA MONICA
	UNIFIED
	SCHOOL
DISTRICT,
Respondent.
ASSOCIATION
v.
)
)
)
)
)
)
)
)
)
)
___________________}
Unfair
	Practice
Case
	No. 	LA-CE-60
PROPOSED
	DECISION
(12/21/78)
Appearances:	
Hirsch 	Adell 	(Reich, 	Adell
	&
Crest),
	Attorney
	forSanta
	Monica
	Classroom
	Teachers
	Association;
	Robert
	A.
	Sieqel
(O'Melveny 	and
	Myers),
	Attorney
	for
	Santa
	Monica
	Unified 	s6hool
District.
Before
	David
	Schlossberg,
	Hearing
	Officer.
PROCEDURAL
	HISTORY
On
	January 	18,
	1977,
	the 	Santa
Monica.
	Classroom
	Teachers
Association 	(hereafter
	Association)
	filed
	an
	unfair
	practice
charge 	with 	the 	Public
	Employment
	Relations
	Board
	(hereafter
PERB) 1	
against
	the 	Santa
Monica
	Unified
	School
	District
(hereafter 	District) 	alleging 	that
	the
	District
	had
	violated
section 	3543.S(a),
	(b) 	and 	(c)
	of 	the 	Educational	
Employment
Relations
	Act
	(hereafter	
EERA)
.2
The	
District 	filed
	its
	answer 	on
	February 	9,
	1977.
lprior 	to January 	1,
	1978, 	the
	PERB
	was 	named	
the
Educational
	Employment
	Relations 	Board.
2Governrnent 	Code
	sec.
	3540
	et 	seq. 	Unless 	otherwise
indicated, 	all 	references 	are 	to 	the.Government 	Code.

On February 18, 1977, the Association filed an amended
unfair practice charge against the District. The District
filed its answer to this amended charge on March 16, 1977.
An informal settlement conference was held on March 9,
1977. A formal hearing was held before this hearing officer on
September 27 and 28, October 12 and 13, and November 4, 1977.
Together, the unfair practice charge and the amended unfair
practice charge list seven paragraphs specifying actions on the
part of the District which allegedly violated section 3543.5.
At the hearing, the Association withdrew the allegation that
the District had violated subdivision (c) and it also withdrew
all the allegations of unfair practices except those relating
to the fourth paragraph. The fourth paragraph alleges that on
or about January 13, 1977, the District threatened the
president of the Association with termination of his employment
because of his exercise of rights guaranteed to him and to the
Association by the EERA.
Posthearing opening and closing briefs were filed by the
parties, and the case was submitted on February 6, 1978.
FINDINGS OF FACT
Background
The District is comprised of twelve elementary, three junior
high and one high school, not including the continuing and
alternative schools. Total enrollment is approximately 13,798
2
On
	February 18,
	1977,
	the 	Association
	filed
	an
	amended
unfair
	practice
	charge
	against 	the
	District.
	The
	District
filed
	its
	answer
	to
	this
	amended
	charge
	on
	March
	16,
	1977.
An
	informal
	settlement
	conference
	was
	held
	on
	March
	9,
1977.
	A
formal
	hearing
	was
	held
	before
	this
	hearing
	officer
	on
September
	27
	and
	28,
	October 	12
	and
	13,
	and
	November
	4,
	1977.
Together, 	the
	unfair
	practice
	charge
	and
	the
	amended
	unfair
practice
	charge
	list
	seven
	paragraphs
	specifying 	actions
	on
	the
part
	of 	the
	District
	which
	allegedly 	violated 	section
	3543.5.
At
	the 	hearing, 	the Association
	withdrew
	the
	allegation
	that
the
	District
	had
	violated 	subdivision
	(c}
	and
	it
	also
	withdrew
all
	the
	allegations
	of
	unfair 	practices
	except 	those
	relating
to
	the 	fourth
	paragraph.
	The
	fourth
	paragraph
	alleges 	that
	on
or
	about 	January 13,
	1977,
	the
	District
	threatened 	the
president
	of 	the 	Association with 	termination
	of
	his
	employment
because 	of 	his 	exercise
	of
	rights
	guaranteed
	to
	him
	and
	to 	the
Association	
by	
the
	EERA.
Posthearing
	opening
	and
	closing
	briefs
	were
	filed	
by	
the
parties,
	and
	the 	case
	was
	submitted
	on
	February 	6,
	1978.
FINDINGS
	OF 	FACT
Background
The	
District 	is
	comprised 	of 	twelve 	elementary, 	three 	junior
high	
and 	one 	high 	school, 	not 	including 	the 	continuing	
and
alternative 	schools. 	Total 	enrollment
	is
	approximately 13,798
2

students. The Association was certified by the PERB as the
exclusive representative of the classroom teachers and various
other certificated employees on November 4, 1976.4
Negotiations between the parties commenced shortly
thereafter. One of the priority subjects of the negotiations
was the Canyon Meadows Outdoor Educational Program (hereafter
Camp Program) .
The Camp Program involves sixth grade students. They are
taken to a place called Canyon Meadows, which is a campsite
located about 60 miles northeast of the City of Santa Monica,
for three days and two nights. The Camp Program has two
purposes : 	(1) it is a cultural exchange, the District's
alternative to busing; and (2) it provides an opportunity for
instructing the children in environmental education.
A similar Camp Program had been in operation through the
1971-72 school year, but was terminated for various reasons.
One of the dissatisfactions expressed by the teachers at that
time was the lack of extra duty pay for those teachers who
participated in the program. 	A study committee was formed the
following year to determine whether and how the program might be
reinstituted. During the 1975-76 school year, the committee
consisted of the supervisor, elementary curriculum and one
3This information was obtained from the testimony at the
hearing and from the 1978 California Public Schools Directory,
published by the California State Department of Education.
Official notice is taken of this publication.
4This information is contained in PERB case file LA-R-60,
of which official notice is taken.
students.3	
The
	Association
	was
	certified
	by
	the
	PERB
	as
	the
exclusive
	representative
	of
	the
	classroom
	teachers
	and
	various
other
	certificated
	employees
	on
	November
	4, 	1976.4
Negotiations
	between
	the
	parties
	commenced
	shortly
thereafter.
	One
	of
	the
	priority
	subjects
	of
	the
	negotiations
was
	the
	Canyon Meadows
	Outdoor
	Educational
	Program
	(hereafter
Camp
	Program}.
The 	Camp
	Program
	involves
	sixth
	grade
	students.
	They
	are
taken
	to
	a
	place
	called
	Canyon Meadows,	
which	
is
	a
	campsite
located
	about
	60
	miles
	northeast
	of 	the 	City 	of 	Santa
	Monica,
for 	three
	days
	and 	two
	nights.
	The 	Camp
	Program 	has
	two
purposes:
	(1)
	it
	is
	a
	cultural
	exchange,
	the
	District's
alternative
	to
	busing;
	and 	(2)
	it
	provides
	an
	opportunity 	for
i.nstructing 	the
	children 	in
	environmental
	education.
A
similar
	Camp
	Program
	had
	been
	in 	operation
	through
	the
1971-72
	school
	year, 	but
	was
	terminated 	for 	various 	reasons.
One
	of 	the
	dissatisfactions
	expressed
	by
	the 	teachers 	at 	that
time
	was
	the 	lack	
of 	extra
	duty 	pay
	for 	those 	teachers
	who
participated 	in
	the
	program.
	A
study
	committee
	was 	formed
	the
following 	year
	to
	determine 	whether
	and 	how	
the	
program
	might
	be
reinstituted.
	During
	the
	1975-76
	school 	year, 	the
	committee
consisted 	of	
the 	supervisor, 	elementary 	curriculum
	and 	one
3This 	information	
was	
obtained	
from 	the 	testimony
	at 	the
hearing
	and 	from
	the
	1978
	California 	Public 	Schools 	Directory,published
	by	
the 	California 	State
	Department 	of 	Education.
Official 	notice 	is
	taken 	of
	this 	publication.
4This 	information 	is 	contained 	in
	PERB
	case 	file
	LA-R-60,
of 	which
	official 	notice 	is 	taken.
3

teacher representative from each of the 12 elementary schools.
Jon Campbell also began attending the meetings of the study
committee when he was appointed the District's coordinator of
outdoor education in April 1976. The committee disbanded after
making its final recommendations in a written report to the
Board of Education on approximately November 12, 1976.
As recommended by the study committee, the personnel for
the Camp Program was to consist of two environmental teachers
whom the District would hire from its substitute list, a nurse
and the coordinator who would be in charge of the school at
Canyon Meadows. These persons would be permanently stationed
at Canyon Meadows. The teachers of the two sixth grade classes
whose students were there would also be present. In addition,
there would be eight different junior or senior students each
week on a volunteer basis who would assist in general super-
vision of the sixth graders and act as instructional aides.
In the beginning of the 1976-77 school year, the District
determined that it would implement the Camp Program as a pilot
project sometime after January 1, 1977. Participation by sixth
grade teachers was to be on a voluntary basis of those who were
on the study committee. The priority negotiations referred to
earlier were directed at reaching agreement for the amount of
extra duty pay for the sixth grade teachers who participated in
the pilot program. 	The general level of extra duty for the
Camp Program and other assignments was being negotiated as a
separate issue.
4
teacher
	representative
	from
	each
	of
	the
	12
	elementary
	schools.
Jon
	Campbell
	also
	began
	attending
	the
	meetings 	of 	the
	study
committee
	when
	he
	was
	appointed
	the
	District's
	coordinator 	of
outdoor
	education
	in
	April
	1976.
	The
	committee
	disbanded
	after
making
	its
	final
	recommendations
	in
	a
	written 	report
	to
	the
Board
	of
	Education
	on
	approximately
	November
	12,
	1976.
As 	recommended
	by
	the 	study
	committee,
	the 	personnel
	for
the
	Camp
	Program
	was
	to 	consist
	of
	two
	environmental
	teachers
whom
	the
	District
	would
	hire
	from
	its
	substitute
	list,
	a
	nurse
and
	the 	coordinator
	who
	would 	be
	in
	charge
	of 	the 	school
	at
Canyon Meadows.
	These
	persons
	would 	be
	permanently
	stationed
at
	Canyon Meadows. 	The
	teachers
	of 	the
	two
	sixth
	grade
	classes
whose
	students
	were
	there
	would
	also
	be
	present.
	In
	addition,
there
	would 	be
	eight
	different
	junior
	or
	senior 	students
	each
week 	on 	a
	volunteer 	basis
	who would
	assist
	in 	general 	super-
vision 	of 	the
	sixth
	graders
	and
	act
	as
	instructional 	aides.
In 	the 	beginning 	of 	the
	1976-77
	school
	year, 	the
	District
determined
	that
	it
	would 	implement
	the
	Camp 	Program 	as
	a
	pilot
project
	sometime
	after
	January
	1,
	1977.
	Participation
	by
	sixth
grade 	teachers
	was
	to
	be 	on
	a
	voluntary 	basis
	of 	those
	who
	were
on
	the 	study
	committee.
	The
	priority
	negotiations 	referred 	to
earlier
	were
	directed 	at
	reaching 	agreement
	for 	the
	amount
	of
extra
	duty 	pay
	for 	the 	sixth
	grade 	teachers
	who
	participated 	in
the
	pilot
	program. 	The
	general 	level
	of
	extra
	duty 	for 	the
Camp 	Program 	and
	other 	assignments
	was
	being 	negotiated 	as 	a
separate 	issue.
4

On November 15, 1976, the District made its initial offer
of approximately $805 as extra duty pay for the sixth grade
teachers who participated in the pilot project. 	The
Association requested $320. The District then proposed $80
plus room, board and transportation. The Association countered
with $240 plus room, board and transportation. The District
raised its offer to $100 plus room, board and transportation.
The Association lowered its request to $200 plus room, board
and transportation, and then to $180 plus "incidental
expenses." The District's negotiator, Peter Sweers, advised
the Association that the District had made its last offer,
which was the $100 plus room, board and transportation. This
offer was refused by the Association. The record does not
reflect the exact date when this last offer was made and
refused, but the evidence does establish that this was the
status of negotiations as of December 1, 1976.
Mrs. Lowry's December 1, 1976 Bulletin
Patricia Lowry is the dean of students at the high school.
On December 1, Mrs. Lowry distributed a bulletin to all first
period faculty at the high school. The bulletin consisted of
three pages. The first page stated:
The proposals and counterproposals were expressed in
terms of extra duty units of pay. In November 1976, one unit
was the equivalent of approximately $80.
5
On
	November
	15,
	1976,
	the
	District
	made
	its
	initial
	offer
of 	approximately
	$805	
as
	extra
	duty
	pay
	for 	the
	sixth
	grade
teachers
	who
	participated
	in
	the
	pilot
	project.
	The
Association 	requested
	$320.
	The
	District
	then
	proposed
	$80
plus
	room,
	board
	and
	transportation.
	The
	Association 	countered
with
	$240
	plus
	room,
	board
	and
	transportation.
	The
	District
raised
	its
	offer 	to
	$100
	plus
	room,
	board
	and
	transportation.
The
	Association
	lowered
	its
	request 	to
	$200
	plus
	room,
	board
and
	transportation,
	and
	then
	to
	$180
	plus
	"incidental
expenses."
	The
	District's
	negotiator,
	Peter
	Sweers,
	advised
the 	Association
	that
	the
	District
	had
	made
	its
	last
	offer,
which
	was
	the
	$100
	plus
	room,
	board
	and
	transportation.
	This
offer
	was
	refused
	by
	the 	Association.
	The
	record
	does
	not
reflect
	the 	exact 	date
	when
	this
	last
	offer
	was 	made 	and
refused,
	but 	the
	evidence
	does
	establish 	that 	this
	was
	the
status
	negotiations	
as	
of
	December
	1,
	1976.
Mrs.
	Lowry's
	December
	1,
	1976
	Bulletin
Patricia
	Lowry
	is
	the
	dean
	of
	students
	at
	the
	high
	school.
On
	December
	1,
	Mrs. 	Lowry
	distributed
	a
	bulletin
	to
	all
	first
ri
	facul 	at
	hi 	school. 	bul
	tin
	consist
three
	pages.
	The
	first
	page
	stated:
5The
	proposals
	and
	counterproposals 	were 	expressed 	interms 	of 	extra 	duty 	units 	of 	pay. 	In
	November 	1976, 	one
	unit
was 	the 	equivalent 	of 	approximately 	$80.
5

First Period Faculty
Patt Lowry, Dean of Students
Date: 	December 1, 1976
Subject: 	Bulletin Regarding High School
counselors--Canyon Meadows
The Santa Monica Unified School District is
sponsoring a program of student
instructional aides for the Outdoor School
at Canyon Meadows. For your information,
the attached letter, which will be given to
interested students, gives details.
Your cooperation is enlisted in posting the
accompanying bulletin in your classroom and
directing attention to it so that your
Junior and Senior students will know of the
meeting to be held Tuesday, December 7,
12:30 P.M., in Barnum Hall. (Emphasis in
the original.)
The second page was a copy of the letter referred to in the
first paragraph of the first page of the bulletin, written by
Mr. Campbell. The third page consisted of an 8-1/2" x 11"
hand-drawn flyer publicizing the date, time and place of the
meeting about the Canyon Meadows Program. It was this flyer
which Mrs. Lowry desired to have posted in the classroom.
At the hearing, Mrs. Lowry testified that there was nothing
in her memo which would have suggested to teachers that they
were required to urge students to be counselors. 	She stated
that she nevertheless believed her memo to be a directive to
post the flyer and call attention to it. However, she also
testified as follows about an October 22, 1976 memo she
authored which began, "Please send the following students to
the Greek Theater, Friday, October 22 at 12:00 Noon. ":
6
From:
First
	Period 	Faculty
From :	
Patt
	Lowry,
	Dean
	of
	Students
Date:	
December	
1,
	1976
Subject:
	Bulletin
	Regarding
	High
	School
counselors--Canyon
	Meadows
The
	Santa
Monica
	Unified
	School
	District 	is
sponsoring
	a
	program	
of	
student
instructional
	aides 	for 	the
	Outdoor 	School
at
	Canyon
Meadows.
	For
	your
	information,the 	attached
	letter,
	which
	will
	be
	given
	to
interested 	students,
	gives
	aetails.
Your
	cooperation
	is
	enlisted
	in 	posting 	the
accompanying
	bulletin
	in
	your
	classroom
	and
directing 	attention 	to
	it
	so
	that
	your
Junior
	and
	Senior
	students
	will
	know
	of 	themeeting
	to
	be
	held
	Tuesday,
	December
	7,
12:30
	P.M.,
	in
	Barnum
	Hall.
	(Emphasis
	inthe
	original.)
The
	second
	page
	was 	a
	copy
	of 	the
	letter
	referred 	to 	in
	the
first
	paragraph 	of
	the
	first
	page
	of 	the
	bulletin,
	written 	by
Mr.
	Campbell.
	The
	third
	page
	consisted 	of
	an
	8-1/2"	
x
	11
11
hand-drawn
	flyer 	publicizing
	the
	date,
	time	
and	
place 	of
	the
meeting 	about
	the
	Canyon Meadows
	Program.
	It
	was
	this 	flyer
which Mrs.
	Lowry
	desired 	to
	have
	posted
	in
	the 	classroom.
At
	the 	hearing,
	Mrs.
	Lowry
	testified 	that 	there
	was
	nothing
in
	her
	memo
	which 	would 	have
	suggested
	to 	teachers
	that
	they
were
	required 	to
	urge
	students 	to
	be
	counselors.
	She
	stated
that
	she 	nevertheless 	believed	
her	
memo
	to
	be
	a
	directive 	to
post 	the 	flyer
	and
	call 	attention 	to
	it.
	However,
	she
	also
testified
	as 	follows 	about
	an October 	22, 	1976 	memo
	she
authored 	which 	began, 	"Please 	send 	the 	following 	students 	to
the 	Greek 	Theater, 	Friday, 	October 	22
	at 	12:00 	Noon.":
6

Q. 	(By Adell) Okay. So this is to inform the teacher--
A. 	That's correct.
Q . 	That Susie may go, but doesn't have to, right?
A. 	That's right.
And when you say, "Please send the following students
to the Greek Theater, what you're really saying is,
"Please send them or don't send them"?
A. 	That's correct.
Mr. Emch's December 2, 1976 Communication to Teachers
Ralph Emch was the president of the Association during the
1976-77 school year and a member of the Association's
negotiating team. On the morning of December 2, Mr. Emch
prepared a one-page communication, which he distributed to the
teachers at the high school. The top half of the front side of
this communication consisted of a copy of the first page of
Mrs. Lowry's December 1 bulletin. On the bottom half of the
front side, Mr. Emch wrote the following:
Fellow Teachers --
Please review the above bulletin and the
memorandum copied on the back of this
sheet. 	The Board of Education is currently
refusing to negotiate extra duty pay for
sixth grade teachers.
To support them and our negotiations, it
seems appropriate that we NOT urge either
teachers or students to participate in this
program at this time. Thanks for your
help. 	(Emphasis in the original. )
The memorandum on the back which Mr. Emch referred to was a
reproduced copy of a memo which Mr. Emch had previously sent to
sixth grade teachers concerning the status of the Canyon Meadows
Q. 	(By
	Adell)
	Okay. 	So
	this
	is
	to
	inform
	the
	teacher--
A.	
That's 	correct.
Q.	
That
	Susie
	may
	go,
	but
	doesn't
	have
	to,
	right?
A.	
That's
	right.
Q. 	And 	when 	you
	say, 	"Please
	send
	the
	following
	students
to
	the
	Greek
	Theater,
	what
	you're
	really
	saying
	is,
"Please
	send
	them
	or
	don't
	send
	them"?
A.	
That's 	correct.
Mr.
	Emch's
	December
	2,
	1976
	Communication
	to
	Teachers
Ralph
	Emch 	was
	the
	president
	of
	the 	Association 	during
	the
1976-77
	school 	year
	and 	a 	member
	of
	the
	Association's
negotiating
	team.
	On
	the
	morning
	of
	December
	2,
	Mr. 	Emch
prepared
	a
	one-page 	communication,
	which 	he
	distributed 	to 	the
teachers 	at
	the
	high
	school.
	The
	top
	half
	of 	the
	front 	side
	of
this
	communication
	consisted 	of
	a
	copy
	of 	the
	first
	page
	of
Mrs.
	Lawry's
	December 	1
	bulletin.
	On
	the
	bottom
	half
	of
	the
front 	side,
	Mr. 	Emch
	wrote 	the 	following:
Fellow Teachers	
--
Please
	review 	the
	above
	bulletin
	and
	the
memorandum
	copied
	on
	the
	back
	of
	thissheet.
	The
	Board
	of 	Education
	is
	currentlyrefusing 	to 	negotiate 	extra
	duty 	pay
	for
sixth
	grade
	teachers.
To
	support
	them 	and
	our
	negotiations,
	it
seems
	appropriate 	that
	we
	NOT
	urge
	eitherteachers 	or 	students 	to 	participate 	in
	th.isprogram
	atthis
	time.
	Thanks
	for
	your
help.	
(Emphasis
	in 	the 	original.}
The 	memorandum 	on
	the
	back 	which Mr. 	Emch
	referred 	to
	was 	a
reproduced 	copy 	of
	a memo 	which Mr. 	Emch 	had
	previously 	sent 	to
sixth 	grade 	teachers 	concerning 	the 	status 	of 	the 	Canyon Meadows
7

Program and urging the sixth grade teachers to delay participa-
tion in the Canyon Meadows Program until after negotiations on
that item had been completed.
Subsequent Events
Mr. Sweers was given a copy of Mr. Emch's December 2
communication by the principal of the high school, and he
brought it to the attention of George Lucas, the Director of
Personnel Services. Mr. Lucas interpreted Mrs. Lowry's
December 1 bulletin as not only imposing an obligation upon
teachers to post the flyer, but also requiring them to urge
students to participate in the Camp Program. However, no
evidence was presented that this interpretation was based on
anything which Mrs. Lowry had told him; rather, Mr. Lucas
considered the language on the first page of the bulletin to be
the polite way of dealing with professionals in lieu of giving
them direct orders.
Mr. Lucas also felt that Mr. Emch's communication was an
attempt to "somehow or other" reduce student participation in
the Camp Program by getting teachers not to call students'
attention to the Camp Program and getting them to sign up for
it. However, no evidence was presented regarding the basis of
Mr. Lucas' interpreting Mr. Emch's communication in this
manner. For example, no evidence was presented that Mr. Lucas
had confronted Mr. Emch about his December 2 communication to
ascertain Mr. Emch's intent or that Mr. Lucas had learned that
Mr. Emch told some teachers to discourage students from
8
Program
	and
	urging
	the
	sixth
	grade
	teachers
	to
	delay	
participa-
tion	
in 	the
	Canyon Meadows
	Program
	until 	after
	negotiations
	on
that
	item
	had
	been
	completed.
Subsequent 	Events
Mr.
	Sweers
	was
	given
	a
	copy
	of
	Mr.
	Emch's
	December 	2
communication
	by
	the
	principal
	of 	the
	high
	school,
	and 	he
brought
	it
	to
	the
	attention
	of
	George
	Lucas,
	the 	Director
	of
Personnel
	Services.
	Mr.
	Lucas
	interpreted
	Mrs.
	Lawry's
December 	1
	bulletin
	as
	not 	only
	imposing
	an
	obligation
	upon
teachers 	to 	post 	the
	flyer,
	but
	also 	requiring
	them
	to
	urge
students 	to
	participate
	in
	the
	Camp
	Program.
	However, 	no
evidence
	was
	presented
	that
	this
	interpretation
	was
	based 	on
anything
	which Mrs.
	Lowry
	had
	told
	him;
	rather,
	Mr.
	Lucas
considered 	the
	language
	on
	the
	first
	page
	of 	the
	bulletin 	to
	be
the
	polite
	way
	of 	dealing 	with
	professionals 	in
	lieu
	of
	giving
them
	direct
	orders.
Mr.
	Lucas
	also
	felt
	that
	Mr. 	Emch's 	communication
	was
	an
attempt
	to
	"somehow
	or
	other"
	reduce
	student
	participation 	in
the
	Camp 	Program 	by
	getting 	teachers
	not
	to 	call
	students'
attention 	to 	the
	Camp
	Program 	and	
getting
	them
	to 	sign
	up
	for
it.
	However, 	no
	evidence
	was
	presented 	regarding 	the 	basis 	of
Mr.
	Lucas'
	interpreting
	Mr. 	Emch 1 s 	communication
	in
	this
manner. 	For 	example, 	no
	evidence	
was
	presented 	that
	Mr. 	Lucas
had
	confronted
	Mr. 	Emch
	about 	his
	December 	2 communication
	to
ascertain
	Mr. 	Emch 1 s
	intent 	or 	that
	Mr. 	Lucas 	had
	learned 	that
Mr. 	Emch
	told
	some
	teachers 	to 	discourage 	students
	from
8

participation in the Camp Program. Nor was any evidence
presented that teachers in fact failed to post the flyer or in
any way encouraged students not to participate in the Camp
Program.
On December 14, Mr. Lucas wrote Mr. Emch a letter about the
December 2 communication. This letter stated, in part, as
follows :
. We feel that your attempts to use
students to gain power for teachers
represents obstructionism in the development
of a very worthwhile program.
We interpret your action in attempting to
interfere with the administration of the
program to be an example of conduct which
may be interpreted as unprofessional. We
intend to so notify the Board of Education
at the meeting of January 10, 1977.
(Emphasis in the original.)
The Board of Education met in executive session at its
January 10 meeting to discuss Mr. Emch's December 2
communication. Mr. Emch and a representative from the
California Teachers Association were present to explain their
point of view. On January 13, Mr. Lucas wrote Mr. Emch the
following letter:
Dear Mr. Emch:
The purpose of this letter is to inform you
about the Board of Education's decision
after our discussion in an executive session
on January 10, 1977. The Board carefully
considered the incident which happened and
the facts as they knew them before arriving
at a decision.
They felt that your actions in attempting to
somehow or other reduce the effectiveness of
our Outdoor Education by attempting to keep
students from becoming involved constitutes
participation
	in
	the
	Camp
	Program.
	Nor 	was
	any
	evidence
presented
	that
	teachers
	in 	fact 	failed 	to
	post
	the
	flyer
	or
	in
any
	way
	encouraged
	students
	not
	to
	participate
	in
	the
	Camp
Program.
On
	December
	14,
	Mr.
	Lucas
	wrote
	Mr.
	Emch
	a
	letter
	about
	the
December 	2	
communication.
	This
	letter
	stated,
	in
	part,
	as
follows:
•••
	We
	feel 	that
	your
	attempts
	to
	use
students 	to
	gain
	power
	for 	teachers
represents 	obstructionism
	in
	the
	development
of
	a
	very 	worthwhile 	program.
--
We
	interpret
	your
	action 	in
	attempting
	to
interfere
	with
	the 	administration
	of
	the
program
	to
	be
	an
	example
	of
	conduct
	whichmay
	be
	interpreted
	as
	unprofessional.
	We
intend
	to
	so
	notify
	the
	Board
	of
	Education
at
	the
	meeting
	of 	January
	10,
	1977.
(Emphasis
	in 	the
	original.)
The
	Board
	of
	Education
met
	in 	executive 	session
	at
	its
January
	10
	meeting
	to
	discuss
	Mr.
	Emch's
	December 	2
communication.
	Mr. 	Emch 	and 	a
	representative
	from
	the
California
	Teachers
	Association
	were
	present
	to
	explain
	their
point 	of
	view.
	On
	January
	13,
	Mr.
	Lucas
	wrote
	Mr. 	Emch
	the
following
	letter:
Dear Mr. 	Emch:
The
	purpose 	of
	this 	letter 	is
	to
	inform
	you
about
	the
	Board
	of 	Education's 	decision
after
	our
	discussion 	in
	an
	executive 	session
on
	January
	10,
	1977.
	The 	Board
	carefullyconsidered 	the 	incident	
which 	happened 	and
the 	facts
	as 	they
	knew 	them
	before 	arriving
at
	a
	decision.
They
	felt 	that
	your 	actions 	in 	attempting 	to
somehow 	or 	other 	reduce 	the 	effectiveness 	of
our 	Outdoor 	Education 	by 	attempting 	to
	keep
students 	from 	becoming 	involved 	constitutes
9

cause for giving you notice of
unprofessional conduct. 	Therefore, the
Board directed me as its authorized
representative to notify you of this fact
according to Education Code Section 13407.
Any further attempts on your part to
obstruct student participation in a
Board-approved program will constitute cause
for disciplinary action.
I am enclosing, for your information, a copy
of Education Code Section 13407 along with
the evaluation pursuant to Article 5.5 of
the California Education Code.
Regretfully yours,
George Lucas
Director of Personnel Services
A copy of this letter was placed in Mr. Emch's personnel
file and was still there as of the time of the hearing.
Hearing Officer's Findings Regarding Mr. Emch's Communication
The District characterizes Mr. Emch's December 2
communication as one which was designed to "use students to
gain power for teachers," specifically "to get teachers not to
call students' attention to the Camp Program and getting
students to sign up for it. " However, the hearing officer
finds that Mr. Emch was not attempting to (1) use students to
gain power for teachers, (2) get teachers to refrain from
posting the flyer about the Camp Program or calling attention
to it, or (3) reduce student participation in the Camp Program
by improper means. These findings are based on the following
The language used by Mr. Emch is somewhat ambiguous. 	In
making reference to Mrs. Lowry's bulletin, Mr. Emch uses the
10
cause
	for 	giving
	you
	notice
	of
unprofessional
	conduct.
	Therefore, 	the
Board
	directed
	me
	as
	its
	authorized
representative
	to
	notify
	you
	of
	this
	fact
according
	to
	Education
	Code
	Section
	13407.
Any
	further
	attempts
	on
	your
	part
	to
obstruct
	student
	participation
	in
	a
Board-approved
	program
	will 	constitute
	cause
for
	disciplinary 	action.
I
	a.m
	enclosing,
	for
	your
	information,
	a
	copy
of
	Education
	Code
	Section
	13407
	along 	with
the 	evaluation
	pursuant
	to Article
	5.5
	of
the
	California
	Education
	Code.
Regretfully
	yours,
George 	Lucas
Director
	of 	Personnel
	Services
A
copy
	of
	this
	letter
	was
	placed
	in
	Mr.
	Emch's
	personnel
file
	and
	was
	still
	there
	as
	of 	the
	time
	of 	the 	hearing.
Hearing
	Officer's
	Findings
	Regarding
	Mr.
	Emch's 	Communication
The
	District
	characterizes
	Mr.
	Emch's
	December 	2
communication 	as 	one 	which
	was
	designed
	to
	"use
	students 	to
gain
	power
	for 	teachers," 	specifically 	"to
	get 	teachers
	not
	to
call
	students' 	attention 	to 	the
	Camp
	Program 	and
	getting
students 	to 	sign
	up
	for
	it."
	However,
	the 	hearing
	officer
finds
	that
	Mr. 	Emch was
	not 	attempting 	to
	(1)
	use
	students
	to
gain 	power	
for 	teachers,
	{2)
	get
	teachers 	to
	refrain
	from
posting 	the 	flyer
	about 	the
	Camp 	Program 	or
	calling 	attention
to
	it,
	or
	(3)
	reduce 	student 	participation 	in 	the
	Camp 	Program
by
	improper 	means. 	These
	findings 	are 	based 	on
	the 	following
analysis.	analysis.
The 	language 	used 	by	
Mr. 	Emch
	is
	somewhat 	ambiguous.
	In
making 	reference 	to
Mrs. 	Lawry's 	bulletin,
	Mr. 	Emch 	uses 	the
10

phrase "not urge. . . students to participate. " However,
Mrs. Lowry's bulletin does not request teachers to "urge
students to participate"; it requests only that they post the
accompanying flyer in their classrooms and direct students'
attention to it. Thus, Mr. Emch's use of the phrase "urge.
students to participate" is either (1) not intended to relate
to Mrs. Lowry's request that teachers post the flyer and direct
students' attention to it or (2) a veiled request by Mr. Emch
that teachers not post the bulletin and not call attention to
it.
Notwithstanding the possible ambiguity of Mr. Emch's words,
the hearing officer believes that the words do have a logical,
literal meaning which does not contravene Mrs. Lowry's request
for posting and directing students' attention to the flyer. For
example, teachers could post the flyer and say to their
students, "There's an announcement about the Camp Program on
the bulletin board, which you can read after class. " In
addition, some teachers might be inclined to also say, "And
kids, I think that this is a very worthwhile program which you
should get involved in. " Thus, Mr. Emch's communication, if
given a literal interpretation, would not be requesting
teachers to refrain from making the first statement, but would
only be requesting that they not make the second one. In the
hearing officer's opinion, this is the only reasonable
interpretation of Mr. Emch's words, standing alone. 	The words
themselves ask nothing more of teachers than that they not
express their gratuitous thoughts about the merits of the Camp
phrase 	"not
	urge
•.•
	students 	to
	participate."
	However,
Mrs.
	Lowry's
	bulletin
	does
	not
	request 	teachers
	to
	"urge
students
	to
	participate";
	it
	requests
	only
	that
	they
	post 	the
accompanying
	flyer
	in
	their
	classrooms
	and
	direct
	students'
attention 	to
	it.
	Thus,
	Mr.
	Emch's
	use
	of
	the
	phrase 	"urge.
students 	to
	participate"
	is
	either
	(1)
	not 	intended
	to
	relate
to
	Mrs.
	Lawry's
	request
	that
	teachers 	post 	the
	flyer
	and
	direct
students' 	attention 	to
	it
	or
	(2) 	a
	veiled 	request
	by Mr. 	Emch
that
	teachers
	not
	post 	the
	bulletin
	and
	not
	call
	attention 	to
it.
Notwithstanding
	the
	possible
	ambiguity
	of
	Mr.
	Emch's
	words,
the 	hearing
	officer
	believes
	that
	the
	words	
do 	have	
a	
logical,
literal
	meaning 	which
	does 	not 	contravene
	Mrs.
	Lawry's
	request
for 	posting
	and
	directing 	students' 	attention 	to
	the
	flyer.
	For
example,
	teachers
	could
	post 	the
	flyer
	and
	say
	to
	their
students,
	"There's
	an 	announcement
	about
	the
	Camp
	Program
	on
the
	bulletin
	board,
	which 	you
	can
	read
	after 	class."
	In
addition,
	some
	teachers
	might 	be
	inclined 	to 	also 	say,
	"And
kids,
	I
	think
	that 	this 	is
	a
	very 	worthwhile
	program 	which 	you
should
	get
	involved
	in."
	Thus,
	Mr. 	Emch's 	communication,
	if
given
	a
	literal
	interpretation,
	would
	not
	be
	requesting
teachers 	to 	refrain
	from 	making
	the
	first
	statement, 	but
	would
only
	be
	requesting 	that 	they 	not	
make
	the 	second 	one. 	In 	the
hearing
	officer's
	opinion, 	this 	is
	the 	only 	reasonable
interpretation of	
Mr. 	Emch's 	words, 	standing 	alone.	
The 	words
themselves 	ask 	nothing 	more 	of 	teachers 	than 	that 	they 	not
express 	their 	gratuitous 	thoughts 	about 	the 	merits 	of 	the 	Camp
11

Program or otherwise assist the District in actively recruiting
students for the program.
The District's interpretation of a veiled request by
Mr. Emch that teachers refrain from posting the flyer and
calling attention to it would have been more viable if there
had been evidence to support it. For example, if Mr. Emch had
stated to others that his intent was to cause teachers not to
post the flyer or not to direct students' attention to it or if
teachers had actually not posted the flyer and directed
students' attention to it in response to Mr. Emch's communica-
then Mr. Emch's communication could have been evaluated
in that light. But no such evidence was presented. The
conclusion reached by Mr. Lucas and the Board of Education was
not based on any investigation to determine what Mr. Emch's
intent was, but only on the words themselves. Based on the
words alone, their conclusion was unreasonable.
Furthermore, the evidence is not persuasive that the
teachers were required to post the flyer, even if Mr. Emch had
intended that they not do so. The words in Mrs. Lowry's
December 1 bulletin were "Your cooperation is enlisted in
posting . 	. " It would not have been unreasonable for
Mr. Emch to assume that Mrs. Lowry was aware of the dispute
between the District and the Association on the amount of the
Camp Program stipend and that she was literally only requesting
teacher cooperation, rather than directing it, so as not to
further intensify the dispute. In the past, Mrs. Lowry had
written more direct memos, such as the one which began, "Please
12
Program
	or
	otherwise
	assist
	the
	District
	in
	actively 	recruiting
students
	for 	the
	program.
The
	District's
	interpretation
	of
	a
	veiled 	request
	by
Mr. 	Emch
	that
	teachers
	refrain
	from
	posting 	the
	flyer
	and
calling 	attention
	to
	it
	would
	have 	been
	more
	viable
	if
	there
had
	been
	evidence
	to
	support
	it.
	For
	example,
	if
	Mr. 	Emch
	had
stated 	to
	others
	that
	his
	intent
	was
	to
	cause
	teachers
	not
	to
post 	the 	flyer
	or 	not
	to
	direct
	students' 	attention 	to
	it
	or
	if
teachers
	had
	actually
	not 	posted 	the
	flyer
	and
	directed
students' 	attention 	to
	it
	in
	response	
to	
Mr.
	Emch's 	communica-
tion	tion,
,
	then
	Mr.
	Emch's 	communication
	could
	have 	been
	evaluated
in
	that
	light.
	But 	no
	such
	evidence
	was
	presented.
	The
conclusion
	reached
	by Mr.
	Lucas 	and
	the
	Board
	of
	Education
	was
not 	based
	on 	any
	investigation 	to
	determine
	what
	Mr.
	Emch's
intent
	was,
	but 	only
	on
	the
	words
	themselves.
	Based on
	the
words
	alone,
	their
	conclusion
	was
	unreasonable.
Furthermore, 	the 	evidence
	is
	not 	persuasive
	that
	the
teachers
	were
	required 	to 	post 	the
	flyer,
	even
	if
	Mr. 	Emch
	had
intended
	that
	they 	not
	do
	so.
	The 	words
	in
	Mrs. 	Lowry's
December 	1
	bulletin
	were
	"Your
	cooperation
	is 	enlisted 	in
posting
	• 	. 	"
	It
	would
	not
	have 	been
	unreasonable 	for
Mr. 	Emch
	to
	assume
	that
	Mrs. 	Lowry was 	aware
	of 	the 	dispute
between
	the
	District	
and	
the 	Association
	on
	the
	amount
	of 	the
Camp 	Program
	stipend	
and	
that
	she
	was
	literally
	only 	requesting
teacher 	cooperation, 	rather 	than 	directing
	it,
	so 	as 	not 	to
further 	intensify 	the 	dispute. 	In 	the 	past,
	Mrs. 	Lowry 	had
written
	more
	direct
	memos, 	such 	as 	the 	one 	which 	began, 	"Please
12

send the following students to the Greek Theater. . 	and
even in this instance, Mrs. Lowry did not feel that the
teachers were required to send the students to the Greek
Theater if they did not want to.
Even if Mrs. Lowry's bulletin did require teachers to post
the flyer, there is no basis whatsoever for concluding, as
Mr. Lucas did, that teachers were required to actively encourage
students to participate in the program. 	First, as noted
earlier, Mrs. Lowry's bulletin does not request teachers to
encourage students to participate in the Camp Program. 	Second,
it is one thing to expect teachers to post or read notices from
administrators which encourage students to participate in the
Camp Program; but it is quite another matter to demand that
teachers represent that they themselves subscribe to the
administration's views that the Camp Program is worthwhile and
that students should be encouraged to participate in it.
Since the teachers were not required to encourage students
to participate in the Camp Program, it was not improper for
Mr. Emch to request that they refrain from doing so.
Finally, it should be emphasized that Mr. Emch did not
request teachers to discourage students from participating in
the Camp Program. Mr. Emch wrote:
. it seems appropriate that we NOT urge
either teachers or students to participate
in this program . . . . (Emphasis in the
original.)
He did not write:
it seems appropriate that we urge
teachers and students NOT to participate in
this program at this time. .
13
send
	the
	following
	students
	to
	the
	Greek
	Theater
••	
" ,
	and
even
	in
	this
	instance,
	Mrs.
	Lowry
	did
	not
	feel 	that
	the
teachers
	were
	required
	to
	send
	the 	students
	to
	the
	Greek
Theater
	if
	they
	did 	not
	want
	to.
.
Even
	if
	Mrs.
	Lowry's
	bulletin
	did
	require
	teachers 	to 	post
the
	flyer,
	there
	is
	no
	basis
	whatsoever
	for 	concluding,
	as
Mr.
	Lucas
	did,
	that
	teachers
	were
	required
	to 	actively
	encourage
students 	to
	participate
	in
	the
	program.
	First,
	as
	noted
earlier,
	Mrs.
	Lowry's
	bulletin
	does
	not
	request 	teachers 	to
encourage
	students 	to
	participate
	in 	the
	Camp
	Program.
	Second,
it
	is
	one
	thing
	to
	expect
	teachers 	to 	post
	or 	read
	notices
	from
administrators
	which
	encourage
	students 	to
	participate 	in 	the
Camp
	Program;
	but
	it
	is
	quite
	another 	matter
	to
	demand
	that
teachers 	represent
	that
	they 	themselves
	subscribe
	to
	the
administration's
	views
	that
	the
	Camp
	Program
	is
	worthwhile
	and
that
	students
	should
	be
	encouraged
	to 	participate 	in
	it.
Since 	the 	teachers
	were
	not
	required 	to
	encourage
	students
to
	participate 	in 	the
	Camp
	Program,
	it
	was
	not
	improper
	for
Mr. 	Emch
	to 	request 	that
	they
	refrain
	from
	doing
	so.
Finally,
	it
	should
	be 	emphasized
	that
	Mr. 	Emch
	did 	not
request 	teachers 	to 	discourage 	students
	from
	participating 	in
the
	Camp
	Program. 	Mr. 	Emch
	wrote:
.••
	it
	seems
	appropriate 	that
	we 	NOT	
urge
either	
teachers 	or
	students 	to
	partTcTpate
in 	this
	program
	..	
0 	0	
(Emphasis
	in 	the
original.)
He
	did 	not 	write:
•••
	it
	seems 	appropriate 	that
	we 	urge
teachers 	and 	students
	NOT
	to 	participate 	in
this 	program 	at 	this 	time
••.•
13

The difference in meaning between the two phrases is
clear. While the words which Mr. Emch did not use connote a
request for active "derecruitment" of students from
participating in the Camp Program, the words used by Mr. Emch
connote a request for teachers to remain silent about the Camp
Program.
In summary, it is found that Mr. Emch's communication did
not request teachers to refrain from posting Mrs. Lowry's flyer
or calling attention to it, but requested teachers to adopt a
neutral course of action in not actively encouraging student
participation when they were under no obligation to do
otherwise.
ISSUE
Whether the District violated section 3543.5 (a) and (b) by
sending the January 13, 1977 letter to Mr. Emch and placing a
copy of it in his personnel file in response to Mr. Emch's
December 2 communication to high school teachers.
CONCLUSIONS OF LAW
Section 3543.5(a) of the EERA provides that it shall be
unlawful for a public school employer to:
Impose of 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.
14
The
	difference 	in
	meaning
	between
	the
	two
	phrases
	is
clear.
	While
	the
	words 	which
	Mr. 	Emch
	did
	not
	use
	connote
	a
request
	for
	active
	"derecruitment" 	of
	students
	from
participating
	in
	the
	Camp
	Program,
	the
	words
	used
	by Mr. 	Emch
connote
	a
	request 	for 	teachers
	to
	remain
	silent
	about
	the
	Camp
Program.
In
	summary,
	it
	is
	found
	that
	Mr.
	Emch's 	communication
	did
not
	request 	teachers
	to
	refrain
	from
	posting
	Mrs.
	Lawry's
	flyer
or
	calling 	attention 	to
	it,
	but 	requested 	teachers 	to
	adopt
	a
neutral
	course 	of
	action 	in
	not
	actively
	encouraging
	student
participation
	when
	they
	were 	under
	no
	obligation 	to
	do
otherwise.
ISSUE
Whether
	the
	District
	violated 	section
	3543.S(a)
	and 	(b)
	by
sending 	the 	January
	13,
	1977
	letter
	to
	Mr.
	Emch
	and
	placing
	a
copy	
of	
it
	in 	his
	personnel
	file
	in
	response
	to
	Mr.
	Emch's
December 	2
	communication
	to
	high 	school
	teachers.
CONCLUSIONS
	OF
	LAW
Section
	3543.S(a) 	of 	the	
EERA
	provides 	that
	it
	shall
	be
unlawful 	for
	a
	public 	school
	employer
	to:
Impose
	of 	threaten 	to	
impose	
reprisals
	on
employees,
	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with,
	restrain,
	or 	coerceemployees 	because	
of 	their 	exercise 	of
rights 	guaranteed 	by	
this 	chapter.
14

Additionally, section 3543 provides, in part, that:
Public school employees shall have the right
to form, join and participate in the
activities of employee organizations of
their own choosing for the purpose of
representation on all matters of
employer-employee relations.
When these two sections are applied in concert, it becomes
unlawful for a public school employer to threaten reprisals
against employees for participating in the activities of an
employee organization. However, employees may not use the EERA
as a shield to engage in whatever kind of conduct they desire
in total disregard of the rights of the employer. It is within
this framework that Mr. Emch's December 2 communication and
Mr. Lucas's January 13 letter are examined.
Mr. Lucas' January 13 Letter Constituted a Reprisal and a Threat
of Reprisal
The reference in Mr. Lucas's January 13 letter to Education
Code section 13407 (renumbered to section 44938 effective
April 30, 1977) is to a statutory notice which must be sent to
permanent school employees prior to dismissal for immoral or
unprofessional conduct. 	The District sent this letter because
of Mr. Emch's December 2 communication. The clear implication
of the letter is that Mr. Emch was in danger of being dismissed
for unprofessional conduct if he continued to advocate the
action called for in his December 2 communication. It hardly
need be stated that the threat of dismissal is a significant
15
Additionally, 	section
	3543
	provides, 	in
	part, 	that:
Public
	school
	employees
	shall
	have
	the
	rightto
	form,
	join
	and
	participate
	in
	the
activities
	of
	employee
	organizations
	of
their
	own
	choosing
	for
	the
	purpose
	of
representation
	on
	all
	matters
	of
employer-employee
	relations.
When
	these
	two
	sections
	are 	applied
	in 	concert,
	it
	becomes
unlawful
	for
	a
	public
	school
	employer
	to 	threaten
	reprisals
against
	employees
	for
	participating 	in
	the
	activities
	of
	an
employee
	organization.
	However,
	employees
	may
	not
	use
	the
	EERA
as
	a
	shield 	to
	engage
	in
	whatever 	kind
	of
	conduct
	they
	desire
in
	total
	disregard
	of
	the
	rights
	of
	the
	employer.
	It
	is
	within
this
	framework
	that
	Mr.
	Emch's
	December 	2
	communication
	and
Mr.
	Lucas's
	January
	13
	letter
	are
	examined.
Mr.
	Lucas' 	January
	13
	Letter 	Constituted
	a
	Reprisal
	and 	a
	Threatof
	Reprisal
The
	reference 	in
	Mr.
	Lucas's 	January
	13
	letter
	to
	Education
Code
	section
	13407 	(renumbered
	to 	section
	44938
	effective
April 	30,
	1977)
	is
	to
	a
	statutory
	notice
	which 	must 	be
	sent 	to
permanent 	school
	employees
	prior 	to 	dismissal 	for
	immoral
	or
unprofessional 	conduct.
	The
	District
	sent
	this 	letter
	because
of	
Mr. 	Emch's 	December 	2	
communication.
	The	
clear 	implication
of
	the	
letter 	is
	that
	Mr. 	Emch 	was
	in	
danger
	of
	being 	dismissed
for 	unprofessional 	conduct
	if
	he
	continued 	to
	advocate 	the
action 	called 	for 	in 	his	
December 	2
	communication.
	It	
hardly
need 	be
	stated 	that 	the 	threat 	of 	dismissal 	is
	a
	significant
threat.	
threat.
15

Indeed, the letter is more than just a threat of reprisal;
it itself is a reprisal, since it was placed in Mr. Emch's
personnel file and stands as an official and permanent record
that the District believes his conduct to have been unprofes-
sional, which can certainly be expected to have an adverse
influence on Mr. Emch's opportunities for promotional'
advancement in the District and perhaps elsewhere.
Emch Was Engaged in Organizational Activity When He Sent
the December 2 Communication to the High School Teachers
In his opening posthearing brief, the District's attorney
contends that the distribution of the December 2 communication
by Mr. Emch did not constitute "organizational activity"
because it was not pursuant to an official Association policy;
rather, it is argued, the communication was an expression of
individual sentiments on a subject which had nothing to do with
the ongoing dispute in negotiations--viz., the participation of
high school students in the Camp Program. The District
contends that Mr. Emch's conduct cannot be deemed to constitute
activity of the Association, within the meaning of section
3543, solely by virtue of the fact that he was the president of
the Association at that time, as such a rule would potentially
grant blanket protection to all conduct of any individual
officer of an employee organization, however tenuous its
connection to official policy of that organization.
The District's argument is not persuasive. 	Officers of
employee organizations should be presumed to be acting with the
authorization of and on behalf of the organization on those
16
Indeed,
	the
	letter
	is
	more
	than
	just
	a
	threat
	of
	reprisal;
it
	itself
	is
	a
	reprisal,
	since
	it
	was
	placed
	in
	Mr.
	Emch's
personnel
	file
	and
	stands
	as
	an
	official
	and
	permanent
	record
that
	the
	District
	believes 	his
	conduct
	to
	have 	been	
unprofes-
sional,
	which
	can
	certainly
	be
	expected
	to
	have
	an
	adverse
influence
	on
	Mr.
	Emch's
	opportunities
	for
	promotional
advancement
	in 	the
	District
	and
	perhaps 	elsewhere.
Mr. 	Emch 	Was
	Engaged
	in 	Organizational
	Activity
	When
	He
	Sent
the
	December 	2
	Communication
	to 	the
	High
	School
	Teachers
In
	his
	opening
	posthearing
	brief,
	the
	District's
	attorney
contends
	that
	the
	distribution
	of
	the
	December 	2
	communication
by	
Mr. 	Emch
	did 	not
	constitute
	"organizational
	activity"
because
	it
	was
	not 	pursuant 	to
	an
	official
	Association
	policy;
rather,
	it
	is
	argued, 	the
	communication
	was 	an
	expression 	of
individual
	sentiments
	on
	a
	subject
	which 	had
	nothing
	to
	do
	with
the
	ongoing
	dispute 	in 	negotiations--viz.,
	the
	participation
	of
high 	school
	students 	in 	the
	Camp
	Program.
	The
	District
contends
	that
	Mr.
	Emch's
	conduct 	cannot
	be 	deemed
	to 	constitute
activity
	of 	the 	Association, 	within 	the
	meaning
	of
	section
3543,
	solely
	by
	virtue
	of 	the
	fact 	that	
he 	was
	the 	president 	of
the 	Association 	at 	that
	time,
	as 	such
	a
	rule	
would	
potentially
grant 	blanket 	protection 	to 	all
	conduct 	of
	any
	individual
officer
	of
	a.n
	employee
	organization,
	however
	tenuous
	its
connection 	to 	official
	policy of 	that 	organization.
The
	District's
	argument
	is
	not 	persuasive. 	Officers 	of
employee 	organizations 	should 	be 	presumed
	to
	be
	acting 	with 	the
authorization 	of 	and 	on 	behalf 	of 	the 	organization 	on 	those
16

matters which even remotely relate to the goals or interests of
the organization. If the determination of "organizational
activity" were dependent upon specific authorization, the
natural result would be that public school employers and the
PERB would be required to continuously monitor the internal
affairs of employee organizations in order to ascertain whether
an individual had been properly authorized to act on behalf of
the organizaion. This is hardly the function of either public
agency .
Mr. Emch's December 2 communication was directed to members
of the negotiating unit and was related to an issue which was
the subject of negotiations. Therefore, the preparation and
distribution of that communication constituted "organizational
activity." Whether it was protected "organizational activity"
is discussed in the next portion of this decision.
Mr. Emch's December 2 Communication Was Protected Activity
The District's defense to the unfair practice charge, and
its basis in sending Mr. Emch the January 13 letter, is that
Mr. Emch improperly attempted to draw students into the dispute
between the Association and the District or to victimize them
because of it. The District contends that Mr. Emch attempted
to obstruct the participation of the high school students by
attempting to encourage the teachers to refrain from posting
Mrs. Lowry's flyer about the Camp Program and calling attention
to it. By attempting to manipulate students and student
sentiment, it is argued, Mr. Emch engaged in the kind of
17
matters
	which
	even
	remotely
	relate
	to
	the 	goals
	or
	interests
	of
the
	organization.
	If
	the 	determination
	of
	"organizational
activity"
	were
	dependent
	upon
	specific
	authorization,
	the
natural
	result
	would 	be
	that
	public
	school
	employers
	and
	the
PERB
	would 	be
	required 	to
	continuously
monitor
	the
	internal
affairs
	of
	employee
	organizations 	in
	order
	to 	ascertain
	whether
an
	individual
	had
	been
	properly 	authorized
	to 	act
	on
	behalf 	of
the 	organizaion.
	This
	is
	hardly 	the 	function
	of
	either 	public
agency.
Mr.
	Emch's
	December
	2
	communication
was
	directed
	to
	members
of 	the
	negotiating 	unit
	and
	was
	related
	to
	an
	issue
	which was
the
	subject 	of negotiations.
	Therefore, 	the 	preparation
	and
distribution
	of
	that
	communication
	constituted 	"organizational
activityo"
	Whether
	it
	was
	protected 	"organizational
	activity"
is
	discussed 	in 	the 	next 	portion 	of
	this
	decision.
Mr.
	Emch's
	December 	2
	Communication
	Was
	Protected 	Activity
The
	District's
	defense
	to 	the 	unfair 	practice
	charge,
	and
its
	basis 	in
	sending
	Mr. 	Emch
	the 	January
	13
	letter, 	is 	that
Mr. 	Emch
	improperly 	attempted 	to
	draw
	students 	into
	the
	dispute
between
	the 	Association
	and
	the
	District
	or
	to 	victimize
	them
because 	of
	it.
	The
	District
	contends
	that
	Mr. 	Emch
	attempted
to 	obstruct 	the
	participation
	of 	the 	high 	school 	students 	by
attempting 	to
	encourage 	the 	teachers 	to 	refrain
	from
	posting
Mrs. 	Lawry's 	flyer 	about 	the
	Camp 	Program 	and
	calling 	attention
to
	it.
	By
	attempting 	to manipulate 	students
	and
	student
sentiment,
	it 	is 	argued, 	Mr. 	Emch 	engaged 	in 	the 	kind 	of
17

flagrant conduct which justifies disciplinary action. The
District cites NLRB v. Thor Power Tool Co. (7th Cir. 1965) 351
2d 585, 587 [60 LRRM 2237, 2238] as authority that the right
of employees to engage in concerted activity must be balanced
against the District's right to maintain order and respect.
It is not necessary to address the District's legal
argument, however, because it has been found that Mr. Emch's
December 2 communication did none of the improper things which
the District alleges it did. The balancing test set out in
Thor Power Tool Co. does not apply to a situation where the
concerted activity is not even arguably improper. The right to
engage in organizational activities under the EERA is not
restricted merely because the public school employer perceives
that there has been interference with its right to maintain
order and respect, if in fact there has been no such
interference. Mr. Emch's December 2 communication was a lawful
communication and constituted "protected organizational
activity."
Mr. Lucas' January 13 Letter Constituted an Unlawful Reprisal
and Threat of Reprisal
In San Diequito Faculty Association v. San Diegueto Union
High School District (9/2/77) BERB Decision No. 22, at p. 14,
the PERB held that in order for a violation of section
3543.5 (a) to occur ,
we would at 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
18
flagrant
	conduct
	which
	justifies
	disciplinary 	action.
	The
District 	cites
	NLRB
	v.
	Thor
	Power
	Tool
	Coo
(7th
	Cir.
	1965)
	351
F.	
F.2d
	585,
	587 	[60
	LRRM
	2237,
	2238]
	as
	authority
	that
	the
	right
of
	employees
	to
	engage
	in
	concert
	activity
	must
	be
	balanced
against 	the
	District's
	right 	to
maintain 	order
	and
	respect.
It	
is
	not
	necessary
	to
	address 	the
	District's
	legal
argument,
	however,
	because
	it
	has 	been 	found
	that
	Mr.
	Emch's
December 	2
	communication
	did
	none
	of
	the
	improper
	things
	which
the
	District
	alleges
	it
	did.
	The
	balancing
	test
	set
	out 	in
Thor
	Power
	Tool
	Co.
	does 	not 	apply
	to
	a
	situation
	where
	the
concerted
	activity 	is
	not
	even
	arguably
	improper.
	The
	right
	to
engage
	in
	organizational 	activities
	under
	the
	EERA
	is
	not
restricted
	merely 	because
	the 	public
	school
	employer
	perceives
that 	there
	has 	been
	interference
	with
	its
	right 	to
maintain
order
	and
	respect,
	if
	in 	fact
	there
	has 	been
	no
	such
interference.
	Mr.
	Emch's
	December 	2
	communication
	was 	a
	lawful
communication
	and
	constituted 	"protected 	organizational
activity."
Mr.
	Lucas' 	January
	13
	Letter
	Constituted
	an 	Unlawful
	Reprisal
and
	Threat 	of 	Reprisal
In
	San
	Diequito 	Faculty 	Association 	v.
	San
	Dieguito
	Union
High
	School
	District
	(9/2/77)
	EERB
	Decision
	No.
	22,
	at 	p. 	14,
t 	PERB 	d
	that 	in 	order 	for
	a
	ation 	section
3543.
5
(a) 	to 	occur,
•••
	we 	would
	at
	mi 	have
	to 	concl
that 	the 	District's
	conduct
	was
	carried 	outwith 	the 	intent 	to 	interfere 	with 	the 	rightsof 	the 	employees 	to 	choose 	an
	exclusive
representative, 	or 	that 	the 	District's
18

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.
In his opening posthearing brief, the District's attorney
argues that the District sent Mr. Emch the January 13 letter in
a good faith belief that Mr. Emch had attempted to unlawfully
obstruct student participation in the Camp Program and that it
did not intend to threaten any reprisals against Mr. Emch for
communications to teachers and attempts to strengthen the
Association's negotiating position so long as his efforts did
not involve or affect students.
Regardless of the District's actual intent, the San
Dieguito standard is met here. The District's conduct cannot
be absolved merely because it incorrectly mischaracterized
Mr. Emch's communication as an attempt to manipulate students
and student sentiment. What the District has done is to
threaten Mr. Emch with dismissal for engaging in the protected
activity of urging teachers to undertake a neutral course of
action when they were under no obligation to do otherwise. 	If
the District may lawfully take the action it did again
Emch, even if the District did not intend to interfere with the
lawful exercise of employee rights guaranteed by the EERA, the
natural and probable consequences will invariably be to cause
employees to forego the exercise of their rights under the EERA.
For these reasons, it is found that the District has
violated section 3543.5 (a) .
19
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.
In
	his
	opening
	posthearing
	brief,
	the
	District's
	attorney
argues
	that
	the
	District
	sent
	Mr. 	Emch
	the
	January
	13
	letter
	in
a
	good
	faith
	belief 	that
	Mr. 	Emch
	had
	attempted
	to
	unlawfully
obstruct
	student
	participation
	in
	the
	Camp
	Program
	and
	that
	it
did
	not
	intend
	to 	threaten
	any
	reprisals
	against
	Mr. 	Emch
	for
communications
	to
	teachers
	and
	attempts
	to
	strengthen 	the
Association's 	negotiating 	position
	so 	long 	as
	his
	efforts
	did
not 	involve
	or
	affect 	students.
Regardless 	of 	the
	District's
	actual
	intent,
	the
	San
Dieguito 	standard
	is
	met
	here.
	The
	District's
	conduct 	cannot
be
	absolved merely 	because
	it
	incorrectly
	mischaracterized
Mr.
	Emch's 	communication 	as
	an
	attempt
	to
manipulate
	students
and
	student 	sentiment.
	What
	the
	District
	has 	done
	is 	to
threaten
	Mr. 	Emch
	with
	dismissal 	for
	engaging
	in
	the 	protected
activity
	of 	urging
	teachers 	to
	undertake
	a
	neutral
	course
	of
action
	when
	they
	were 	under
	no
	obligation 	to
	do
	otherwise.
	If
the
	District
	may
	lawfully 	take 	the 	actionst Mr.	
it
	did
	against
	Mr.
Emch,	
even
	if
	the
	District
	did 	not 	intend	
to 	interfere
	with 	the
lawful 	exercise 	of
	employee
	rights
	guaranteed
	by
	the
	EERA,
	the
natural	
and	
probable 	consequences
	will 	invariably
	be
	to 	cause
employees	
to 	forego 	the 	exercise 	of 	their 	rights	
under	
the
	EERA.
For 	these 	reasons,
	it 	is	
found	
that 	the 	District	
has
violated 	section 	3543.5(a).
19

The Alleged Violation of Section 3543.5 (b)
The Association also alleges that the District has violated
section 3543.5(b) , which provides that it shall be unlawful for
a public school employer to deny to employee organizations
rights guaranteed to them by the EERA.
The Association's attorney argues that the January 13
letter had the additional consequence of undermining the
Association's negotiating stance on the Camp Program stipend
issue. Presumably, the alleged violation of section 3543.5 (b)
is founded on the basis of a derivative violation of section
3543.5(a) in that Mr. Emch was president of the Association and
the unlawful reprisal against Mr. Emch interfered with the
Association's rights.
The PERB itself has previously rejected the theory of a
derivative section 3543.5(b) violation on the basis that
section 3543.5 (b) was not designed to protect the same rights
guaranteed by section 3543.5(c). See California School
Employees Association, Chapter 658 v. Placerville Union School
District (9/18/78) PERB Decision No. 69, at pp. 9-10. It
follows, therefore, that there would be no derivative violation
of section 3543.5(b) arising from a section 3543.5 (a) violation.
Accordingly, it is found that the District did not violate
section 3543.5 (b) .
REMEDY
Section 3541.5(c) authorizes the PERB to issue a decision
and order in an unfair practice case directing an offending
20
The
	Alleged
	Violation
	of 	Section
	3543.5(b}
The
	Association
	also 	alleges
	that
	the
	District
	has
	violated
section
	3543.S(b),
	which
	provides
	that
	it
	shall
	be
	unlawful
	for
a
	public
	school
	employer
	to
	deny
	to
	employee
	organizations
rights
	guaranteed
	to
	them 	by
	the
	EERA.
The
	Association's 	attorney
	argues
	that
	the
	January
	13
letter
	had
	the
	additional
	consequence
	of
	undermining
	the
Association's 	negotiating 	stance
	on
	the
	Camp
	Program
	stipend
issue.
	Presumably,
	the 	alleged
	violation
	of
	section
	3543.S(b)
is
	founded
	on
	the
	basis
	of
	a
	derivative 	violation
	of
	section
3543.S(a)
	in
	that
	Mr. 	Emch 	was
	president
	of
	the 	Association
	and
the
	unlawful
	reprisal
	against
	Mr.
	Emch
	interfered
	with 	the
Association's
	rights.
The
	PERB
	itself
	has
	previously
	rejected
	the 	theory 	of
	a
derivative 	section
	3543.S(b)
	violation
	on
	the
	basis 	that
section
	3543.S(b)
	was
	not 	designed
	to 	protect
	the
	same
	rights
guaranteed
	by
	section
	3543.S(c).
	See
	California
	School
Employees
	Association,
	Chapter
	658
	v.
	Placerville
	Union
	School
District
	(9/18/78)
	PERB
	Decision
	No.
	69,
	at
	pp. 	9-10.
	It
follows, 	therefore, 	that 	there
	would 	be 	no
	derivative 	violation
section
	3543.S(b)
	arising
	from 	a
	section
	3543.S(a)
	violation.
Accordingly,
	it
	is
	found
	that 	the
	District
	did 	not
	violate
section
	3543.5
	) •
REMEDY
Section 	3541.S(c) 	authorizes 	the
	PERB
	to 	issue
	a
	decision
and 	order 	in 	an 	unfair 	practice 	case 	directing
	an 	offending
20

party to cease and desist from the unfair practice and to take
such affirmative action as will effectuate the policies of the
EERA. In California School Employees Association, Chapter 658
v. Placerville Union School District, supra, (9/18/78) PERB
Decision No. 69, at pp. 11-12, the Board itself, citing the
United States Supreme Court decision in NLRB v. EXPRESS
Publishing Co. (1941) 312 U. S. 426, 438 [8 LRRM 415, 420] ,
ordered a public school employer to post copies of the order of
the decision. Such a posting requirement in this case
effectuates the policies of the EERA in that it serves to
advise the employees in the negotiating unit of the disposition
of the unfair practice charge and, further, announces the
readiness of the District to comply with it.
Furthermore, it is also appropriate to effectuating the
policies of the EERA that Mr. Lucas' January 13, 1978 letter
and all references to it be removed from Mr. Emch's personnel
file. Cf. Community Hospital of Roanoke Valley v. NLRB (1975)
220 NLRB 217 [90 LRRM 1440], end. (4th Cir. 1976) 538 F. 2d 607
[92 LRRM 3158], where the Circuit Court of Appeal upheld a
similar order of the National Labor Relations Board.
21
party 	to
	cease
	and
	desist
	from
	the
	unfair
	practice
	and
	to 	take
such
	affirmative 	action
	as
	will 	effectuate
	the
	policies
	of
	the
EERA.
	In
	California
	School
	Employees
	Association,
	Chapter
	658
v.
	Placerville
	Union
	School
	District,
	supra, 	(9/18/78)
	PERB
Decision
	No.
	69,
	at
	pp.
	11-12,
	the
	Board
	its
	f
	citi
	t
United
	States
	Supreme
	Court
	decision
	in
	NLRB
	Vo
	EXPRESS
Publishing
	Co.
	(1941)
	312
	U.S. 	426,
	438 	[8
	LRRM
	415,
	420],
ordered
	a
	public
	school
	employer
	to
	post
	copies 	of 	the
	order
	of
the
	decision.
	Such
	a
	posting
	requirement
	in
	this
	case
effectuates
	the
	policies
	of
	the
	EERA
	in
	that
	it
	serves 	to
advise 	the
	employees
	in 	the 	negotiating 	unit
	of
	the
	disposition
of
	the
	unfair 	practice
	charge 	and,
	further,
	announces
	the
readiness
	of
	the
	District
	to
	comply
	with
	it.
Furthermore,
	it
	is
	also 	appropriate 	to 	effectuating 	the
policies
	of
	the
	EERA
	that
	Mr.
	Lucas' 	January 	13,
	1978
	letter
and
	all
	references
	to
	it
	be 	removed 	from Mr.
	Emch's
	personnel
file.
	Cf.
	Community
	Hospital 	of
	Roanoke
	Valley 	v.
	NLRB
	(1975)
220
	NLRB
	217 	[90
	LRRM
	1440], 	enfd. 	(4th
	Cir.
	1976) 	538
	F.2d
	607
[92
	LRRM
	3158],
	where
	the 	Circuit
	Court 	of
	Appeal
	upheld
	a
similar
	order 	of 	the 	National
	Labor
	Relations
	Board.
21

PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law and
discussion, and the entire record in this case, and pursuant to
section 3541.5(c) of the EERA, it is hereby ordered that the
Santa Monica Unified School District, its governing board,
superintendent and other representatives shall:
A. CEASE AND DESIST FROM:
Taking or threatening to take reprisals against Ralph Emch
because of his December 2, 1976 communication to high school
teachers.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Remove from Ralph Emch's personnel file Mr. Lucas'
January 13, 1977 letter and all references to it.
2. 	Prepare and post copies of this order for twenty (20)
working days at the District's headquarters offices and at each
school in conspicuous locations where notices to certificated
employees are customarily posted.
3. At the end of the posting period, notify the Los Angeles
Regional Director of the actions taken to comply with this
Order .
IT IS FURTHER ORDERED that the unfair practice allegation
arising under section 3543.5(b) is hereby DISMISSED.
Pursuant to California Administrative Code, title 8, part
III, section 32305, this Proposed Decision and Order shall
become final on January 12, 1979 unless a party files a timely
22
PROPOSED
	ORDER
Upon
	the 	foregoing
	findings
	of
	fact,
	conclusions
	of
	law 	and
discussion,
	and
	the
	entire
	record
	in
	this
	case,
	and
	pursuant
	to
section
	3541.S(c)
	of 	the
	EERA,
	it
	is
	hereby
	ordered
	that
	the
Santa
	Monica
	Unified
	School
	District,
	its
	governing
	board,
superintendent
	and
	other
	representatives
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
Taking
	or
	threatening 	to
	take
	reprisals
	against
	Ralph
	Emch
because
	of
	his
	December
	2,
	1976
	communication
	to
	high
	school
teachers.
B.
	TAKE 	THE
	FOLLOWING
	AFFIRMATIVE
	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF THE
	EERA:
1.
	Remove
	from
	Ralph 	Emch's
	personnel
	file
	Mr.
	Lucas'
January 	13,
	1977
	letter
	and
	all
	references 	to
	it.
2. 	Prepare
	and
	post 	copies 	of
	this
	or
	r
	for
	twenty
	(20)
working 	days
	at
	the
	District's
	headquarters
	offices
	and
	at
	each
school 	in
	conspicuous
	locations
	where
	notices 	to
	certificated
employees
	are 	customarily 	posted.
3.
	At
	the
	end
	of 	the 	posting 	period, 	noti 	the
	Los
	Angeles
ional 	Director 	of 	the
	ons
	taken
	to
	comply
	th
	this
Or
	r.
IT 	IS
	FURTHER ORDERED
	that 	the 	unfair 	actice
	all
	ion
arisi
	under 	sec
	on 	3543.S(b)
	is
	eby 	DISMISSED.
Pursuant 	to California Administrative
	Code,
	title
	8,
	t
III, 	section
	32305,
	this
	Propos 	Decision 	and 	Order
	shall
become
	final
	on January 	12, 	1979 	unless
	a
	party 	files
	a
	timely
22

statement of exceptions within twenty (20) calendar days
following the date of service of the decision. Such statement
of exceptions and supporting 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
January 10, 1979 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: December 21, 1978
David Schlossberg
Hearing Officer
23
statement
	of
	exceptions 	within
	twenty
	(20)
	calendar
	days
following 	the
	date 	of
	service
	of 	the
	decision.
	Such
	statement
of
	exceptions
	and
	supporting
	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
January
	10,
	1979
	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
	its
elf.
	(See
California
	Administrative
	Code,
	title
	8,
	part
	III,
	sections
32300
	and 	32305,
	as
	amended.)
Dated:
	December
	21,
	1978
,-,~-"~---,~
--------------
David
	SchlossbergHearing
	Officer
23