Konocti Unified School District (PERB 0217E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	LOCAL 	228,
Charging 	Party,
v.
KONOCTI 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	SF-CE-340
PERB 	Decision 	No. 217
June 	2 9, 	198 2
KONOCTI 	UNIFIED 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	LOCAL 	228,
Respondent.
case 	No. 	SF-CO-78
Appearances: 	Steven 	T. 	Nutter 	and 	Ruth 	Rokeach, 	Attorneys 	for
California 	School 	Employees 	Association; 	William Wood 	Merrill,
Attorney 	for 	the 	Konocti 	Unified 	School 	District.
Before 	Gluck, 	Chairperson; 	Morgenstern 	and 	Jaeger, 	Members.
DECISION
I n 	thes e 	consolidat e d 	unfa i r 	cases, 	each 	party 	appeals
por t ions 	of 	the 	hear i ng 	officer's 	proposed 	de c ision 	which 	held:
(1) 	that 	the 	Konocti 	Unified 	School 	District 	{District)
violated 	subse c tion 	3543.S(a) 	o f 	the 	Educationa l 	Employment

Relations 	Act 	(EERA)l 	by 	disciplining 	a 	classified 	employee
because 	of 	his 	position 	as 	president 	of 	the 	exclusive
representative 	and 	chairman 	of 	its 	bargaining 	committee, 	and
(2) 	that 	the 	California 	School 	Employees 	Association, 	Local 	228
(CSEA) 	did 	not 	violate 	subsections 	3543.6(c) 	and 	(d)2 	by
taking 	a 	strike 	authorization 	vote 	of 	its 	membership 	and 	by 	the
actions 	of 	the 	classified 	employee 	who 	is 	the 	subject 	of 	the
organization's 	unfair 	practice 	charge.
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	noted.
Subsection 	3543.S(a) 	provides:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
2subsections 	3543.6(c) 	and 	(d) 	provide 	in 	relevant 	part:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:
( c) 	Refuse 	or 	fail 	to 	mee t 	and 	negotiate 	in
good 	f ai th 	with 	a 	public 	school 	employer 	or
any 	of 	the 	employees 	of 	which 	it 	is 	the
exclusive 	representative.
(d) 	Refuse 	to 	participate 	in 	good 	faith 	in
the 	impasse 	procedure 	•.
2

FACTS
CSEA 	and 	the 	District 	began 	renegotiations 	in 	June 	1978
with 	CSEA declaring 	impasse 	in 	October. 	On 	November 	14, 	CSEA's
membership 	authorized 	the 	bargaining 	committee 	to 	call 	a 	strike
"when 	and 	if 	necessary 	to 	get 	a 	contract." 	The 	parties 	met
with 	a 	mediator 	on 	December 	6 	and 	7, 	at 	which 	time 	a 	tentative
agreement 	was 	reached.
On 	the 	morning 	of 	December 	6, 	Wesley 	Franklin, 	a 	District
driver, 	stopped 	his 	bus 	inside 	school 	grounds, 	but 	not 	at 	an
authorized 	stopping 	point, 	to 	address 	the 	students. 	He 	told
them 	that 	he 	would 	not 	be 	driving 	that 	afternoon 	or 	the
following 	day 	because 	of 	negotiations. 	Such 	driver
notification 	of 	projected 	absences 	apparently 	was 	a 	standard
practice 	since 	students 	tended 	to 	identify 	their 	bus 	by 	the
driver. 	Franklin, 	however, 	went 	on 	to 	explain 	that 	a 	strike
was 	possible 	(a 	student 	testifed 	that 	Franklin 	thought 	the
strike 	might 	occur 	as 	early 	as 	the 	next 	day) 	and 	that 	the
classified 	employees 	would 	appreciate 	student 	and 	parent
support. 	He 	suggested 	that 	one 	means 	of 	support 	would 	be
non-attendance 	at 	school, 	which 	would 	cause 	the 	District 	to
lose 	average 	daily 	attendance 	monies. 	He, 	however, 	did
emphasize 	that 	the 	students 	should 	consult 	their 	parents 	about
boycotting 	classes 	and, 	if 	their 	parents 	disagreed, 	a 	second
means 	of 	expressing 	support 	would 	be 	to 	have 	the 	parents 	call
the 	school 	on 	behalf 	of 	the 	striking 	employees. 	Franklin
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testified 	that 	he 	told 	the 	students 	that, 	while 	he 	believed 	the
District 	would 	not 	use 	noncertified 	drivers 	as 	strike
replacements, 	he 	personally 	would 	have 	the 	highway 	patrol 	pull
over 	any 	unqualified 	replacement.
Franklin 	had 	joined 	CSEA 	shortly 	after 	it 	was 	certified 	as
the 	exclusive 	representative 	in 	1977. 	He 	subsequently 	became
president 	of 	the 	chapter 	and 	chairman 	of 	its 	negotiating
committee. 	Franklin 	apparently 	had 	a 	satisfactory 	work 	record,
although 	he 	did 	receive 	at 	least 	one 	written 	reprimand 	in 	the
early 	1970s 	for 	stopping 	a 	school 	bus, 	while 	transporting
students, 	to 	preach 	about 	Christ.3
On 	January 	2, 	1979, 	Superintendent 	Carle 	recommended 	to 	the
District 	Board 	of 	Trustees 	that 	Franklin 	be 	dismissed. 	The
superintendent 	cited 	the 	foregoing 	speech 	and 	charged 	Franklin
with 	violating 	ten 	sections 	of 	the 	District's 	policy 	manual 	and
bus 	driver 	handbook 	by: 	discourteous 	and 	offensive 	conduct 	or
language 	toward 	a 	pupil; 	engaging 	in 	political 	activities
during 	work 	hours; 	incompetency 	or 	inefficiency;
insubordination; 	negligence; 	misuse 	of 	District 	property; 	and
conduct 	which 	discredited 	the 	District.
3while 	no 	evaluations 	were 	entered 	into 	the 	record,
District 	Superintendent 	William 	Carle 	testified 	that 	Franklin
had 	not 	received 	any 	written 	reprimands 	or 	other 	forms 	of
discipline 	since 	the 	described 	event 	in 	the 	early 	1970s .
4

The 	board 	of 	trustees 	conducted 	a 	hearing 	on 	these 	charges
on 	January 	23, 	1979, 	and 	found 	merit 	in 	five 	of 	the
charges. 4 	The 	superintendent's 	recommendation 	was 	modified
to 	reduce 	the 	discipline 	to 	a 	five-month 	suspension.
CSEA 	filed 	unfair 	practice 	charges 	on 	January 	18, 	1979,
alleging 	that 	Carle's 	actions 	violated 	subsection 	3543.S(a) 	by
discriminating 	and 	threatening 	reprisals 	against 	Franklin 	for
his 	participation 	in 	a 	protected 	activity. 	The 	charge 	was
amended 	on 	January 	26 	to 	incorporate 	the 	disciplinary 	action
taken 	by 	the 	District 	Board 	of 	Trustees 	and 	amended 	again 	on
March 	1 	to 	include 	the 	allegation 	that 	the 	District's
disciplinary 	action 	interfered 	with 	the 	rights 	of 	all 	unit
employees.5
The 	District 	filed 	unfair 	practice 	charges 	on
January 	31, 	1979, 	alleging 	that 	Franklin's 	conduct 	on 	the 	bus
and 	the 	strike 	authorization 	vote 	constituted 	a 	refusal 	on
CSEA's 	part 	to 	negotiate 	in 	good 	faith 	and 	to 	utilize 	the
statutory 	impasse 	proceedings 	in 	good 	faith.
The 	hearing 	officer 	proposed 	to 	find 	that 	Franklin's 	bus
conduct 	was 	unprotected 	but 	that 	the 	District's 	disciplinary
4The 	District 	found 	that 	Franklin 	violated 	its 	policies
as 	to 	particpation 	in 	political 	activites, 	incompetent 	and
inefficient 	performance, 	careless 	and 	negligent 	performance,
and 	misuse 	of 	District 	property.
5csEA 	filed 	another 	amendment 	on 	March 	20, 	but 	it 	is
identical 	to 	its 	amendment 	of 	March 	1.
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action 	was 	actually 	motivated 	by 	Franklin's 	role 	as 	president
of 	the 	local 	and 	its 	negotiating 	chairperson 	and 	was 	therefore
unlawful. 	He 	also 	proposed 	to 	dismiss 	the 	District's 	charges
and 	CSEA's 	charge 	alleging 	interference 	with 	employee 	rights.
CSEA 	excepts 	to: 	(1) 	the 	proposed 	finding 	that 	Franklin's
conduct 	on 	the 	bus 	is 	unprotected; 	(2) 	the 	dismissal 	of 	its
interference 	charge; 	and 	(3) 	the 	hearing 	officer's 	failure 	to
consider 	its 	argument, 	raised 	for 	the 	first 	time 	in 	its
post-hearing 	brief, 	that 	the 	District 	policy 	which 	Franklin 	was
found 	to 	have 	violated 	was 	overbroad 	and 	constituted 	invalid
no-solicitation 	rules.
The 	District 	noted 	some 	30 	exceptions 	to 	the 	hearing
officer's 	findings 	of 	fact 	and 	conclusions 	of 	law. 	In 	view 	of
the 	result 	we 	reach 	here, 	it 	was 	necessary 	to 	consider 	only 	the
following 	District 	exceptions: 	(1) 	that 	its 	discipline 	was
based 	on 	Franklin's 	role 	within 	CSEA; 	(2) 	that 	Carle's 	alleged
anti-union 	animus 	may 	be 	attributed 	to 	the 	District 	Board 	of
Trustees 	and 	(3) 	the 	dismissal 	of 	its 	charge 	concerning 	CSEA's
negotiation 	conduct.
DISCUSSION
Franklin's 	Conduct 	as 	Protected 	Activity
To 	be 	protected, 	employee 	activity 	must 	be 	in 	pursuit 	of
lawful 	objectives 	and 	carried 	out 	in 	a 	proper 	manner. 	The
United 	States 	Supreme 	Court 	has 	held 	that, 	where 	employee
objectives 	were 	within 	the 	scope 	of 	those 	authorized 	by 	the
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National 	Labor 	Relations 	Act, 	the 	means 	used 	in 	pursuit 	of
those 	objectives 	nevertheless 	deprived 	employees 	of
protection. 	NLRB 	v. 	Local 	Union 	1224, 	International
Brotherhood 	of 	Electrical 	Workers 	(1953) 	346 	U.S. 	464
(33 	LRRM 	2183]. 	In 	Elk 	Lumber 	Co. 	(1950) 	91 	NLRB 	336
[26 	LRRM 	1493] 	the 	National 	Labor 	Relations 	Board 	found 	that:
... 	not 	every 	form 	of 	activity 	that 	falls
within 	the 	letter 	of 	this 	provision 	is
protected. 	The 	test 	.•• 	is 	whether 	the
particular 	activity 	is 	so 	indefensible 	as 	to
warrant 	[disciplinary 	action]. 	Either 	an
unlawful 	objective 	or 	the 	adoption 	of
improper 	means 	of 	achieving 	it 	may 	deprive
employees 	engaged 	in 	concerted 	activities 	of
the 	protection 	of 	the 	Act. 	P. 	336, 	337;
citations 	omitted.
The 	Board 	finds 	that 	Franklin's 	actions 	on 	the 	bus 	were
conducted 	in 	an 	indefensible 	manner 	and 	are, 	consequently,
unprotected. 	The 	incident 	occurred 	while 	Franklin 	was 	on 	duty
and 	while 	transporting 	students 	to 	school. 	By 	making 	such 	an
unauthoriz ed 	stop, 	he 	tempora ri ly 	interrupted 	his 	work 	to
conduct 	organizational 	business 	without 	authorization 	and
probably 	in 	violation 	of 	existing 	work 	rules. 	Further, 	he
delivered 	his 	appeal 	to 	boycott 	classes 	to 	young 	students,
likely 	to 	be 	impressionable 	and 	who 	were 	forced 	to 	hear 	it
without 	being 	given 	the 	opportunity 	to 	leave.
The 	New 	Jersey 	Public 	Employment 	Relations 	Commission 	has
held 	that 	certain 	teacher 	communications 	to 	parents 	via 	letters
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hand-carried 	by 	the 	students 	was 	not 	protected 	activity,
stating:
This 	is 	particularly 	true 	where 	the
instruction 	by 	a 	classroom 	teacher 	to 	take
home 	a 	message 	to 	parents 	really 	amounts 	to
the 	involuntary 	involvement 	of 	students.
Manalapan-Englishtown 	Regional 	Board 	of
Education 	(7/5/78) 	PERC 	No. 	78-91, 	4 NJPER
262. 	(Emphasis 	added.)
CSEA 	argues 	that 	public 	employees 	have 	a 	legitimate
interest 	in 	communicating 	with 	students 	about 	labor 	disputes
between 	the 	District 	and 	employee 	organizations, 	citing 	Stevens
Institute 	(1979) 	241 	NLRB 	833 	(101 	LRRM 	1052]; 	St. 	Joseph's
High 	School 	(1978) 	236 	NLRB 	1623 	(99 	LRRM 	1380]; 	and 	Tinker 	v.
Des 	Moines 	Independent 	Community 	School 	District, 	393 	U.S. 	503
(216 	Ed 	2d 	751].
By 	its 	holding 	here, 	the 	Board 	does 	not 	find 	that 	school
employees 	may 	never 	communicate 	with 	students 	about 	labor
relations 	matters. 	We 	do 	find 	that 	the 	means 	employed 	by
Franklin 	to 	do 	so 	are 	unprotected. 	Stevens 	Institute, 	supra,
is 	clearly 	distinguishable 	from 	the 	conduct 	before 	us. 	There,
a 	teacher 	was 	invited 	by 	a 	student 	association 	to 	attend 	and
speak 	at 	one 	of 	their 	meetings. 	The 	teacher 	did 	not 	address
the 	students 	during 	work 	hours 	nor 	did 	the 	students 	constitute
a 	"captive 	audience." 	The 	case 	does 	not 	stand 	for 	the
proposition 	that 	employees 	have 	an 	absolute 	right 	to 	address
students 	at 	any 	time 	or 	place.
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The 	facts 	of 	St. 	Joseph 	High 	School, 	supra, 	are 	also
distinguishable. 	There, 	a 	teacher 	sent 	letters 	directly 	to
adult 	third 	parties 	who 	sat 	on 	various 	school 	committees.
Tinker, 	supra 	is 	a 	First 	Amendment 	case 	involving 	the 	right
of 	students 	to 	wear 	armbands 	at 	a 	public 	school 	in 	protest 	of
American 	policies 	in 	Vietnam. 	It 	is 	clearly 	inapposite 	to 	the
facts 	before 	us.
CSEA 	further 	argues 	that 	an 	employer 	cannot 	limit 	the 	right
of 	employees 	to 	communicate 	with 	others 	at 	the 	work 	site 	in
nonwork 	areas, 	during 	nonworking 	times, 	unless 	the 	employer 	can
show 	that 	such 	communications 	would 	adversely 	impact 	the
employer's 	business 	operations. 	The 	argument 	misses 	the 	mark.
Franklin's 	speech 	was 	in 	a 	working 	area 	during 	working 	time.
Franklin's 	Discipline
The 	hearing 	officer 	found 	that, 	although 	Franklin's 	conduct
on 	the 	bus 	was 	unprotected 	and 	the 	District 	had 	cause 	to 	take
some 	disciplinary 	action 	against 	him, 	it 	would 	not 	have 	imposed
the 	discipline 	that 	it 	did 	but 	for 	his 	participation 	in 	other
protected 	activities.
In 	Novato 	Unified 	School 	District 	(4/30/82} 	PERB 	Decision
No. 	210, 	we 	recognized 	that 	direct 	proof 	of 	unlawful
motivation, 	the 	essential 	element 	of 	reprisal 	charges, 	is
rarely 	available; 	nevertheless, 	we 	found 	that 	it 	can 	be
established 	by 	circumstantial 	evidence 	and 	inferred 	from 	the
record 	as 	a 	whole.
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Here, 	CSEA 	has 	failed 	to 	present 	evidence 	permitting 	an
inference 	that 	the 	District 	harbored 	anti-union 	animus 	and 	that
its 	discipline 	of 	Franklin 	was 	motivated 	by 	his 	protected
activity. 	The 	Association 	only 	produced 	evidence 	as 	to 	the
alleged 	animus 	of 	Superintendent 	Carle. 	The 	hearing 	office r
found 	that 	Superintendent 	Carle's 	recommendation 	was 	motivated
by 	Franklin's 	role 	as 	president 	of 	the 	local 	and 	negotiating
committee 	chairman. 	He 	then 	imputed 	this 	animus 	to 	the
District, 	citing 	Antelope 	Valley 	Community 	College 	District
(7/18/79) 	PERB 	Decision 	No. 	97, 	and 	found 	a 	subsection
3543.S(a) 	violation.
Assuming, 	without 	so 	finding, 	that 	Carle 	possessed 	the
ascribed 	animus,6 	we 	do 	not 	find 	that 	it 	can 	automatically 	be
imputed 	to 	the 	District's 	Board 	of 	Tru stees 	who 	imposed 	the
discipline. 	The 	hearing 	off icer's 	reliance 	on 	Antelope 	Valley
Community 	College 	District 	is 	misplaced. 	There, 	the 	acts 	of
various 	employee 	agents 	were 	attributed 	to 	the 	employer 	who
approved 	their 	appointment 	as 	managers 	and 	who 	took 	no 	action
6csEA produced 	the 	following 	circumstantial 	evidence
during 	the 	hearing, 	designed 	to 	prove 	that 	the 	District's
action 	was 	based 	on 	anti-union 	animus: 	(1) 	Carle's 	angry
response 	to 	a 	CSEA 	filed 	grievance; 	(2) 	the 	District's
unilateral 	implementation 	of 	changes 	without 	negotiations; 	(3)
Carle's 	comments 	to 	employees 	that 	CSEA 	representation 	is 	not
needed 	in 	n egotiations ; 	(4) 	the 	District's 	favorable 	treatment
of 	an 	employee 	who 	led 	a 	decertification 	drive~ 	and 	(5) 	Carle's
per sonal 	initiation 	of 	discipline 	against 	Franklin 	and
recommendation 	of 	discipline 	which 	was 	too 	severe 	for 	the
alleged 	offense 	committed.
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to 	repudiate 	their 	unlawful 	conduct. 	Here, 	the 	District
conducted 	an 	independent 	disciplinary 	hearing 	and 	rejected 	the
superintendent's 	recommendation.7
The 	facts 	here 	are 	also 	distinquishable 	from 	Novato, 	supra,
where 	a 	school 	principal, 	on 	his 	own, 	made 	the 	decision 	to
transfer 	the 	employee 	and 	then 	unilaterally 	implemented 	it.
See 	also 	Marin 	Community 	College 	District 	(11/19/80) 	PERB
Decision 	No. 	145, 	where 	school 	officials 	recommended 	an
employee 	for 	dismissal 	and 	the 	recommendation 	was 	simply
accepted 	by 	the 	employer 	without 	a 	hearing.
There 	is 	nothing 	in 	the 	record 	to 	indicate 	that 	the
District's 	Board 	of 	Trustees 	would 	not 	have 	suspended 	Franklin
"but-for" 	his 	protected 	activities. 	Although 	the 	transcript 	of
this 	disciplinary 	hearing 	was 	not 	placed 	in 	evidence, 	the
record 	of 	the 	PERB 	hearing 	reflects 	that 	the 	school 	board 	only
considered 	Franklin's 	school 	bus 	actions.
CSEA 	failed 	to 	meet 	its 	burden 	of 	demonstrating 	unlawful
motive 	on 	the 	part 	of 	the 	District. 	The 	charge 	related 	to
Franklin's 	discipline 	is 	dismissed.
The 	District's 	Subsections 	3543.6(c) 	and 	{d) 	Charges
While 	a 	union's 	conduct 	may 	take 	on 	more 	of 	the 	character
of 	coercion 	than 	of 	collective 	bargaining; 	the 	mere 	fact 	that 	a
7There 	is 	no 	allegation 	that 	the 	Trustee's 	hearing 	was
unfair 	or 	impartial.
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given 	employer 	claims 	to 	have 	been 	coerced 	is 	insufficient 	to
support 	such 	a 	finding. 	The 	conduct 	must, 	at 	the 	least, 	be 	of
such 	a 	nature 	as 	to 	permit 	the 	reasonable 	expectation 	that 	such
would 	be 	the 	effect. 	Strike 	votes 	- 	like 	strike 	talk 	- 	are
commonplace 	in 	labor 	relations, 	particularly 	in 	the 	face 	of
approaching 	deadlines. 	They 	cannot 	be 	viewed 	as 	per 	se
violations 	of 	the 	good-faith 	obligation. 	In 	otherwise 	judging
CSEA's 	good 	faith, 	we 	look 	to 	the 	totality 	of 	its 	conduct8
and 	find 	no 	other 	relevant 	evidence. 	The 	District's 	charge
rests 	solely 	on 	these 	two 	incidents. 	By 	themselves, 	they
cannot 	sustain 	the 	District's 	charge. 	It 	is 	accordingly
dismissed.
Interference 	- 	Subsection 	3543.S(a) 	Charge
CSEA 	excepts 	to 	the 	finding 	that 	the 	District 	did 	not
interfere 	with 	the 	rights 	of 	other 	unit 	employees 	by 	its
disciplinary 	action 	against 	Franklin.
To 	establish 	a 	violation 	of 	subsection 	3543.S(a) 	by
interference, 	a 	charging 	party 	has 	the 	initial 	burden 	of
presenting 	evidence 	establishing 	a 	nexus 	between 	the 	employer's
conduct 	and 	the 	exercise 	of 	an 	employee's 	right 	protected 	by
EERA. 	Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB 	Decision
No. 	89; 	Novato, 	supra.
8pajaro 	Valley 	Unified 	School 	District 	(5/22/78) 	PERB
Decision 	No. 	51; 	NLRB 	v. 	Stevenson 	Brick 	and 	Block 	Co. 	(4th
Cir. 	1968) 	393 	F.2d 	234 	[68 	LRRM 	1605].
12

We 	have 	already 	found 	Franklin's 	conduct 	to 	be 	unprotected
and 	the 	District's 	disciplinary 	action 	not 	to 	be 	a 	violation 	of
the 	Act. 	Therefore, 	the 	District's 	disciplinary 	action 	cannot
reasonably 	be 	found 	to 	have 	interfered 	with 	the 	protected
rights 	of 	others. 	The 	pertinent 	charge 	is 	dismissed.
Overbroad 	District 	Policies
CSEA 	excepts 	to 	the 	hearing 	officer's 	failure 	to 	consider
its 	claim 	that 	the 	District 	violated 	subsection 	3543.S(a) 	by
disciplining 	Franklin 	for 	violating 	District 	policies 	which
were 	overbroad, 	ambiguous 	no-solicitation 	rules. 	CSEA 	raised
this 	argument 	for 	the 	first 	time 	in 	its 	post-hearing 	brief.
The 	issue 	was 	never 	fully 	and 	fairly 	litigated. 	Accordingly,
we 	do 	not 	consider 	it.
ORDER
Based 	on 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in
this 	case, 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that
the 	unfair 	practice 	charges 	in 	Case 	Nos. 	SF-CE-340 	and 	SF-CO-78
are 	DISMISSED .
By: / Harry Gluck , Chairperson 	John W. Jaeger, Member
Marty Morgenstern, Member