San Ramon Valley Unified School District (PERB 0230E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
SAN 	RAMON 	VALLEY 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
SAN RAMON 	VALLEY 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case 	No. 	SF-CE-349
PERB 	Decision No. 	230
August 	9, 	1982
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Appearances: 	Jon A. 	Hudak, 	Attorney 	(Breon, 	Galgani 	& Godino)
for 	San 	Ramon 	Valley 	Unified 	School 	District.
Before 	Gluck, 	Chairperson; 	Tovar 	and 	Jaeger, 	Members.
DECISION
The 	San 	Ramon Valley 	Unified 	School 	District 	(District)
excepts 	to 	the 	hearing 	officer's 	decision 	that 	the 	District
violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA)l 	by
1) 	certain 	coercive. and 	threatening 	remarks 	made 	by 	a 	principal
to 	a 	teacher 	even 	though 	this 	conduct 	was 	not 	charged; 	2)
denying 	agents 	of 	the 	San 	Ramon Valley Education Association,
CTA/NEA, 	(Association) 	access 	to 	certain 	schools; 	3) 	forbidding
representatives 	of 	the 	Association 	to 	address 	the 	school 	board
on 	issues 	that 	were 	under 	negotiation, 	grievances 	or
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	specified, 	all 	references 	shall 	be 	to 	the
Government 	Code.

arbitrations; 	and 	4) 	unilaterally 	changing 	the 	pupil-teacher
ratio.
Only 	these 	aspects 	of 	the 	hearing 	officer's 	decision 	which
were 	excepted 	to 	are 	considered 	in 	this 	decision.
FACTS
1. 	The 	Reid-Henderson Conversations
Ronalee 	Reid, 	a 	science 	teacher 	at 	San 	Ramon 	High 	School,
became 	a 	candidate 	for 	president 	of 	the 	Association 	in
October 	1978. 	During 	her 	candidacy, 	she 	had 	several
conversations 	with 	her 	principal, 	James 	Henderson.
In 	response 	to 	her 	informing 	him 	that, 	although 	running 	for
president 	was 	important 	to 	her, 	teaching 	had 	a 	higher 	priority,
he 	said 	that 	maybe 	San 	Ramon 	High 	School 	(SRHS) 	was 	not 	the
place 	for 	her 	any 	longer.2 	This 	remark 	is 	unclear, 	but 	it
may 	relate 	to 	her 	candidacy 	rather 	than 	her 	order 	of 	priority.
By 	his 	own 	admission, 	Henderson 	expressed 	to 	Reid 	his 	hope
that 	the 	grievance 	procedure 	would 	not 	be 	the 	only 	vehicle 	used
for 	solving 	problems 	and 	that 	he 	did 	not 	want 	SRHS 	to 	become 	a
place 	where 	all 	the 	time 	was 	spent 	dealing 	with 	grievances.
This 	conversation 	also 	touched 	on 	a 	grievance 	which 	had
been 	filed 	by 	Reid 	several 	months 	before 	over 	teaching
2we, 	with 	the 	hearing 	officer, 	credit 	Reid's 	version 	of
these 	facts 	because 	of 	her 	reliance 	on 	her 	contemporaneous
notes 	and 	her 	overall 	superior 	ability 	to 	recall 	details.
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reassignments 	in 	the 	science 	department. 	Henderson 	commented
that 	he 	was 	glad 	it 	was 	settled 	because 	he 	felt 	that 	people
could 	have 	gotten 	hurt, 	that 	it 	would 	have 	been 	a 	divisive
force 	in 	the 	science 	department, 	and 	that 	his 	main 	motivation
in 	settling 	it 	was 	to 	avoid 	having 	every member 	of 	the
department 	testify 	at 	an 	arbitration 	hearing.
Subsequent 	to 	this 	conversation, 	Reid 	became 	involved 	in
two 	other 	potential 	grievances 	concerning 	air 	conditioning 	and
darkening 	drapes 	for 	the 	drama 	department. 	Before 	taking
formal 	steps, 	Reid 	informed 	Henderson 	of 	the 	complaints,
whereupon 	he 	became 	angry 	and 	said 	that 	Bernier, 	the 	California
Teachers 	Association 	staff 	person, 	had 	better 	things 	to 	do 	than
become 	involved 	in 	what 	was 	going 	on 	at 	the 	campus. 	He 	also
told 	her 	that 	the 	drama 	teacher, 	Lynn 	Goodwyn, 	could 	meet 	with
the 	arts 	coordinator 	about 	the 	drapes 	but 	he 	didn't 	want 	Reid
and 	Bernier 	involved 	in 	that 	meeting. 	Finally, 	Henderson
implied 	that 	if 	Goodwyn 	persisted 	in 	this 	complaint, 	he 	might
not 	be 	able 	to 	remain 	objective 	about 	decisions 	which 	he 	may 	be
called 	upon 	to make 	about 	Goodwyn's 	future.
The 	Association 	did 	not 	allege 	any 	part 	of 	these
conversations 	to 	be 	violations 	of 	the 	Act, 	although 	it 	did
charge 	that 	the 	current 	teaching 	reassignments 	were 	done 	in
retaliation 	for 	filing 	grievances 	over 	the 	previous 	year's
assignments. 	The 	hearing 	officer 	dismissed 	that 	charge, 	and
the 	Association 	did 	not 	except 	to 	that 	finding.
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2. 	Access 	Problems
Beginning 	in January 	1979, 	the 	Association's 	staff 	person,
Jacques 	Bernier, 	experienced 	problems 	at 	four 	of 	the 	District's
20 	schools, 	where 	his 	access 	to 	the 	faculty 	lounge 	during 	lunch
time 	was 	restricted 	in 	various 	ways.
The 	District's 	access 	policy 	is 	less 	than 	clear. 	The
written 	rule 	provides 	that 	organizations 	shall 	have 	the 	right
to 	use 	school 	buildings 	for 	meetings 	without 	charge 	but 	with
permission of 	the 	principal 	which 	was 	not 	to 	be 	unreasonably
withheld. 	The 	rule 	also 	reads:
8. 	Employee 	organizations 	may 	contact
employees 	for 	the 	purpose 	of 	discussing
organization 	business 	(for 	recruitment
purposes) 	before 	and 	after 	duty 	hours 	or
during 	authorized 	break 	periods 	••• 	All
organization 	representatives 	shall 	first
notify 	the 	principal 	that 	they 	are 	in 	the
school 	before 	contacting 	any 	employee 	for
the 	purpose 	of 	discussing 	organization
business.
According 	to 	the 	superintendent's 	interpretation 	of 	Rule 	8,
permission 	from 	the 	principal 	was 	not 	required 	when 	the
representative 	wished 	to 	discuss 	Association 	business 	with 	an
employee. 	Only 	notification 	was 	required.
After 	a 	1977 	incident 	in 	which 	Bernier 	was 	nearly 	arrested
at Walt 	Disney 	School 	when 	he 	was 	conferring 	with 	teachers 	in
the 	lounge 	during 	lunch 	time, 	the 	superintendent 	and 	Bernier
agreed 	that 	the 	latter 	would 	have 	access 	to 	faculty 	lounges
during 	non-working 	time 	for 	informal 	discussions, 	but 	the
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Association 	would 	use 	other 	rooms 	for 	official 	meetings.
Between 	October 	1977 	and 	January 	1979, 	the 	Association 	did 	not
encounter 	policies 	or 	practices 	at 	individual 	schools 	that
conflicted 	with 	this 	understanding.
On 	a 	routine 	visit 	to 	Disney 	in January 	1979, 	Bernier 	was
told 	by 	the 	secretary 	that 	he 	would 	have 	to 	be 	cleared 	by 	the
principal, 	Bonnie 	Solberg, 	before 	going 	into 	the 	lounge.
Solberg 	refused 	to 	allow 	him 	to 	go 	into 	the 	lounge, 	offering 	no
reason 	beyond 	her 	authority 	to make 	access 	decisions, 	although
she 	did 	offer 	an 	alernate 	site.3 	A few 	days 	later 	she
conditioned 	his 	access 	to 	the 	lounge 	on 	his 	announcing 	when 	he
would 	be 	there 	and 	listing 	those 	employees 	whom 	he 	intended 	to
see. 	He 	would 	be 	permitted 	to 	speak 	only 	to 	those 	employees 	on
the 	list, 	and 	then 	they 	were 	to 	meet 	someplace 	besides 	the
lounge. 	Bernier 	agreed 	to 	list 	employees 	but 	protested 	these
rules. 	She, 	like 	three 	other 	principals 	who 	restricted 	lounge
access, 	cited 	alleged 	wishes 	of 	various 	employees 	to 	be 	free
from 	"outsiders" 	during 	lunch 	as 	justification 	for 	her 	action.
At Monte 	Video 	School, 	the 	policy 	excludes 	everyone 	who 	is
selling 	or 	"pushing 	something" 	from 	the 	lounge 	during 	lunch 	on
the 	theory 	that 	teachers 	should 	have 	a 	sanctuary 	during 	their
3on 	another 	occasion, 	Bernier 	was 	prevented 	by 	Solberg
from 	meeting 	with 	a 	couple 	of 	grievance 	representatives.
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lunch 	hour. 	However, 	there 	have 	been 	incidents 	at 	this 	school
where 	"outsiders" 	have 	been 	allowed 	in 	the 	lounge.4
At 	Rancho 	Romero 	School, 	the 	policy 	directs 	that
Association 	staff 	meet 	with 	teachers 	in 	a 	workroom which 	is
adjacent 	to 	the 	lounge. 	Association 	representatives 	are
prohibited 	from 	entering 	the 	lounge 	to 	solicit 	or 	discuss
individual 	grievances 	but 	may 	distribute 	literature 	there.
At Armstrong 	School, 	Bernier 	met 	in 	the 	lounge 	in April
1979 	to 	discuss 	a 	grievance 	concerning 	class 	size. 	The
principal 	was 	present 	and 	allowed 	the 	meeting 	to 	continue 	but,
shortly 	thereafter, 	told 	an Association official 	that 	he 	didn't
want 	Bernier 	in 	the 	lounge 	discussing 	grievances 	and 	that
Bernier 	was 	not 	to 	come 	on 	campus 	without 	his 	prior 	approval.
Although 	the 	principal 	has 	never 	withheld 	permission, 	he
acknowledged 	that 	if 	he 	were 	not 	present 	to 	grant 	permission,
then 	Bernier 	would 	not 	be 	allowed 	on 	campus.
Teachers 	at 	all 	of 	these 	schools 	have 	a 	30-minute 	lunch
break. 	The 	lounges 	are 	equipped 	with 	stoves 	and 	refrigerators
where 	the 	lunches 	are 	stored. 	For 	this 	reason, 	it 	is 	virtually
necessary 	for 	the 	teachers 	to 	eat 	in 	the 	lounges.
4E.g., 	parents 	of 	students 	or 	relatives 	of 	teachers,
classroom 	volunteers.
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3. 	Refusal 	to Allow 	Reid 	to 	Address 	the 	School 	Board
Pursuant 	to 	a 	District 	policy 	that 	prohibits 	an 	Association
representative 	from 	speaking 	to 	the 	school 	board 	on 	matters
under 	negotiation 	or 	discussing 	grievances, 	arbitrations, 	or
personnel 	matters, 	Reid, 	then 	president 	of 	the 	Association, 	was
denied 	an 	opportunity 	to 	address 	the 	school 	board 	on 	an
advisory 	arbitration 	award 	subject 	to 	the 	board's 	action 	at
that 	particular 	meeting. 	She 	was 	also 	prohibited 	from 	speaking
at 	an 	executive 	session 	on 	a 	grievance 	matter.
4. 	The 	Unilateral 	Change 	in 	Pupil-Teacher 	Ratio
In March 	1979, 	budget 	considerations 	prompted 	a 	discussion
among 	administrative 	staff 	regarding 	changing 	pupil-teacher
ratios. 	The 	collective 	bargaining 	agreement 	called 	for 	1:25;
and 	the 	suggested 	change 	was 	1:26. 	The 	administration 	started
planning 	for 	the 	change 	before 	the 	board 	of 	education 	approved
it 	and 	ultimately 	scheduled 	assignments 	based 	on 	the 	adopted
1:26 	ratio. 	The 	increase 	in 	the 	staffing 	ratios 	would 	increase
class 	size 	by 	1.3 	students 	which 	would 	in 	turn 	require 	6.8
fewer 	teachers.
The 	contract 	established 	"guidelines" 	for 	student-teacher
ratios 	and 	contained 	the 	following 	language:
Efforts 	shall 	be 	made 	to 	maintain 	the 	above
staffing 	guidelines 	recognizing 	that
limitations 	of 	budget, 	of 	space, 	or 	of
facilities 	may 	require 	exceptions. 	When
schools 	go 	beyond 	the 	established
student-teacher 	ratio 	as 	soon 	as 	it 	is
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The 	District 	objects 	to 	this 	finding 	for 	the 	simple 	reason
that 	none 	of 	the 	conduct 	was 	charged 	by 	the 	Association. 	It
argues 	that 	Santa 	Clara, 	supra, 	differs 	in 	several 	significant
aspects 	from 	the 	instant 	case 	and 	does 	not 	permit 	the 	result
reached 	by 	the 	hearing 	officer.
In 	Santa 	Clara, 	this 	Board 	held 	that 	it 	would 	entertain
uncharged 	violations 	in 	certain 	narrow 	circumstances: 	1) 	~he
uncharged 	violation must 	be 	intimately 	related 	to 	the 	subject
of 	the 	complaint 	and 	arise 	from 	the 	same 	course 	of 	conduct;
2) 	the 	matter 	must 	be 	fully 	litigated 	and 	the 	parties 	given 	a
full 	opportunity 	to 	engage 	in 	direct 	and 	cross-examination.
The 	violation 	charged 	in 	that 	case 	was 	a 	disciminatory
refusal 	to 	hire 	and 	the 	uncharged 	illegal 	remarks6 	occurred
during 	the 	same 	conversation 	in 	which 	the 	charging 	party 	was
denied 	a 	permanent 	position. 	Thus, 	both 	the 	remarks 	that 	were
uncharged 	and 	the 	actual 	violation 	arose 	from 	the 	same 	course
of 	conduct.?
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
6These 	remarks 	questioned 	the 	wisdom 	of 	the 	charging
party's 	contacting 	the 	union 	and 	suggested 	that, 	in 	the 	future,
she 	should 	come 	to 	the 	principal 	first 	with 	any 	problems.
7santa 	Clara 	Unified 	School 	District 	had 	previously 	been
remanded 	(PERB 	Decision No. 	60 	(8/3/78)), 	to 	resolve 	existing
credibility 	issues 	raised 	by 	conflicting 	testimony 	as 	to 	these
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possible 	considering 	the 	above 	factors,
adjustments 	shall 	be 	made 	to 	adhere 	to 	the
established 	ratio.
The 	agreement 	also 	contains 	a 	zipper 	clause 	which 	provides 	in
pertinent 	part:
The 	District 	shall 	have 	no 	further
obligation 	to 	meet 	and 	negotiate 	during 	the
terms 	of 	this 	contract, 	••. 	on 	any 	subject
whether 	or 	not 	said 	subject 	is 	covered 	by
this 	contract 	even 	though 	such 	subject 	was
not 	known 	or 	considered 	at 	the 	time 	of 	the
negotiations 	meetings 	to 	the 	execution 	of
this 	contract.
Although 	the 	new 	ratio 	was 	in 	effect 	at 	the 	time 	of 	the
hearing, 	there 	is 	no 	indication 	that 	the 	change 	was 	permanent
or 	that 	it 	differed 	in 	any 	way 	from 	those 	types 	of 	changes
contemplated 	by 	the 	contract.
DISCUSSION
1. 	Reid-Henderson Conversations
Relying 	on 	Santa 	Clara 	Unified 	School 	District 	(9/26/79)
PERB 	Decision No. 	104, 	the 	hearing 	officer 	found 	Henderson's
comments 	to 	be 	violations 	of 	subsections 	3543.S(a) 	and 	(b)S
because 	they 	were 	coercive 	and 	threatening, 	and 	disparaged 	the
negotiated 	grievance 	procedure.
Ssubsections 	3543.S(a) 	and 	(b) 	state:
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
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The 	conversations 	in 	this 	case 	were 	not 	intimately 	related
to 	the 	subject 	of 	the 	complaint, 	i.e., 	the 	discriminatory
reassignment. 	Instead, 	they 	focused 	on 	different 	subjects,
e.g., 	grievances 	in 	general, 	using 	Bernier, 	and 	threats 	against
Reid 	and Goodwyn.
Although 	Henderson's 	comments 	were 	permitted 	to 	be
introduced 	at 	the 	hearing 	as 	evidence 	of 	illegal 	motive 	for 	the
reassignments, 	the 	hearing 	officer 	never 	indicated 	that 	he
would 	consider 	them 	as 	a 	basis 	of 	a 	separate 	charge 	which, 	in
fact, 	was 	not 	litigated.a 	His 	use 	of 	the 	evidence 	here
denied 	the 	District 	its 	right 	to 	be 	fully 	informed 	of 	charges
brought 	against 	it 	and 	to 	have 	a 	full 	and 	fair 	opportunity 	to
defend 	such 	charges, 	which 	amounts 	to 	a 	denial 	of 	judicial 	due
process. 	Accordingly, 	we 	reverse 	the 	hearing 	officer's 	finding
of 	a 	violation.
2. 	Access
The 	District 	argues 	that 	the 	hearing 	officer's 	finding 	that
the 	principals' 	restriction 	of 	Association 	access 	to 	teachers
in 	the 	lounges 	during 	lunch 	time 	violated 	subsections 	3543.S(a)
remarks 	which 	the 	hearing 	officer 	did 	not 	consider. 	The
parties 	were 	thus 	on 	notice 	that 	this 	was 	an 	issue 	which 	the
Board 	would 	consider, 	and 	therefore 	fully 	litigated 	the 	issue
with 	full 	direct 	and 	cross-examination.
8The 	District 	in 	fact 	objected 	to 	evidence 	of 	parts 	of
the 	conversations 	on 	the 	ground 	that 	they 	did 	not 	relate 	to
anything 	in 	the 	charges, 	but 	was 	overruled 	by 	the 	hearing
officer 	who 	allowed 	it 	for 	the 	purpose 	indicated. 	The 	charging
party 	offered 	the 	remarks 	as 	evidence 	of 	motive 	for 	the
reassignments.
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and 	(b), 	undermines 	the 	District's 	right 	to 	maintain 	an 	orderly
and 	harmonious 	work 	environment. 	The 	crux 	of 	its 	argument 	is
that 	it 	was 	justified 	in 	restricting 	the 	Association's 	access
because 	of 	alleged 	faculty 	wishes 	to 	not 	have 	solicitors 	of 	any
kind 	in 	their 	lunch 	area.
This 	Board 	has, 	twice 	before, 	had 	the 	opportunity 	to
address 	the 	rights 	of 	employee 	organizations' 	access 	to 	school
employees 	under 	subsection 	3543.l(b)9. 	Richmond 	Unified
School 	District/Simi 	Valley 	Unified 	School 	District 	(8/1/79)
PERB 	Decision 	No. 	99, 	and 	Long 	Beach 	Unified 	School 	District
(5/28/80) 	PERB 	Decision No. 	130. 	In 	the 	initial 	case,
Richmond, 	we 	decided 	that 	private 	sector 	principles 	are 	the
benchmark 	of 	the 	reasonableness 	of 	the 	public 	school 	employer's
regulation 	of 	access. 	Essex 	International, 	Inc. 	(1979) 	211
NLRB 	749 	[86 	LRRM 1411] 	established 	that 	rules 	which 	prohibit
1 0	solicitation 	during 	"working 	hours" 	(which 	would 	include
9subsection 	3543.l(b) 	states:
(b) 	Employee 	organizations 	shall 	have 	the
right 	of 	access 	at 	reasonable 	times 	to 	areas
in 	which 	employees 	work, 	the 	right 	to 	use
institutional 	bulletin 	boards, 	mailboxes,
and 	other 	means 	of 	communication, 	subject 	to
reasonable 	regulation, 	and 	the 	right 	to 	use
institutional 	facilities 	at 	reasonable 	times
for 	the 	purpose 	of 	meetings 	concerned 	with
the 	exercise 	of 	the 	rights 	guaranteed 	by
this 	chapter.
lOThe 	exact 	nature 	of 	"Association 	business" 	that 	Bernier
wished 	to 	conduct 	in 	the 	lounges 	is 	unclear 	from 	the 	record.
At 	the 	very 	least 	it 	included 	discussion 	of 	pending 	grievances
11

lunch 	and 	breaks) 	unduly 	restrict 	employees' 	right 	to 	engage 	in
protected 	activities 	since 	the 	employer 	has 	no 	cognizable
interest 	in 	prohibiting 	nondisruptive 	contact 	in 	nonworking
areas 	between 	employees 	and 	their 	organizations 	during
duty-free 	periods 	of 	the 	day.
Pursuant 	to 	its 	legitimate 	interest 	in 	regulating 	the 	use
of 	its 	facilities, 	the 	District 	may 	require 	advance
notification 	when 	the 	organization 	wishes 	to 	conduct 	a 	meeting
in 	facilities 	not 	normally 	used 	by 	nonworking 	employees, 	Long
Beach, 	supra. 	However, 	in 	this 	case, 	the 	employer 	exceeded 	the
bounds 	of 	reasonable 	regulation 	when 	it 	banned 	Bernier 	during
the 	lunch 	period 	from 	lounges, 	which 	were 	nonworking 	areas, 	or
otherwise 	restricted 	his 	access 	by 	forcing 	him 	to 	get 	prior
permission 	from 	the 	principal. 11 	Allowing 	him, 	or 	any 	other
agent 	of 	the 	Association, 	into 	the 	lounges 	posed 	no 	threat 	of
disruption 	of 	the 	educational 	process 	or 	other 	school 	functions.
The 	District's 	assertion 	that 	its 	restriction 	of 	lunch 	room
access 	was 	legitimized 	by 	employee 	desires 	to 	be 	free 	from
solicitation 	or 	"outsiders" 	is 	no 	defense. 	As 	we 	noted 	in Long
Beach, 	supra:
While 	the 	District 	may 	legitimately
promulgate 	rules 	to 	prohibit 	disruptive
and 	we 	have 	no 	reason 	to 	believe 	that 	it 	went 	beyond
permissible 	organizational 	interests.
llThe 	District, 	however, 	may 	require 	nonemployee 	visitors
to 	sign 	in 	at 	the 	school 	office 	before 	going 	to 	a 	meeting 	site,
Long 	Beach, 	supra. 	Further, 	the 	Board 	will 	not 	disturb 	that
portion 	of 	the 	parties' 	arrangement 	whereby 	the 	Association
uses 	rooms 	other 	than 	the 	lounges 	for 	official 	meetings.
12

conduct, 	the 	EERA 	does 	not 	establish 	the
public 	school 	employer 	as 	the 	guardian 	of
the 	employees' 	undisputed 	right 	to 	refrain
from 	participating 	in 	the 	activities 	of 	an
employee 	organization 	•.•• 	In 	balancing
the 	right 	of 	access 	of 	organizations 	and 	the
right 	of 	individual 	employees 	to 	participate
or 	refrain 	from 	participating 	in
organizational 	activities, 	the 	Board 	finds
the 	latter 	right 	is 	adequately 	protected 	in
that 	disinterested 	employees 	are 	not 	a
captive 	audience 	and 	may 	simply 	leave 	the
nonworking 	areas 	or 	otherwise 	ignore 	the
organizational 	activities. 	{pp. 	21-22.)
Thus, 	banning 	or 	interfering 	with 	the 	Association's 	access 	to
the 	lounges 	during 	lunch 	is 	an 	unreasonable 	restriction
violative 	of 	subsection 	3545.S(b}. 	Because 	this 	practice 	also
prohibited 	employees 	from 	participating 	in 	the 	activities 	of
the 	organization, 	and 	was 	not 	justified 	by 	business 	necessity,
we 	find 	that 	the 	policy 	also 	violated 	subsection 	3543.S(a}.
See 	Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB 	Decision
No. 	89 	and 	Long 	Beach, 	supra. 	For 	the 	same 	reasons, 	we 	find
the 	District's 	restriction 	on 	the 	types 	of 	discussions, 	e.g.,
no 	group 	meetings 	or 	grievance 	discussions, 	is 	unwarranted
because 	it presumes 	that 	all 	group meetings 	will 	be 	disruptive,
a 	conclusion 	that 	is 	unsupported 	by 	the 	evidence. 	See 	Long
Beach, 	supra, 	pp. 	17-18.
3. 	Addressing 	the 	School 	Board
We 	affirm 	the 	hearing 	officer's 	conclusion 	that 	the
District 	violated 	subsections 	3543.S(a) 	and 	(b} 	by 	not 	allowing
Reid 	to 	speak 	on 	the 	advisory 	arbitration, 	but 	for 	different
reasons.
13

Although 	we 	are 	mindful 	of 	Constitutional 	parameters,12
we 	base 	our 	conclusion 	on 	the 	provisions 	of 	the 	EERA. 	The
issue 	here 	is 	whether 	the 	Act 	permits 	the 	District 	to 	limit 	the
subject matter 	concerning 	which 	an 	exclusive 	representative 	may
address 	it 	in 	public meetings.
In 	City 	of 	Madison 	v. 	Wisconsin Employment 	Relations
Commission 	(1976) 	429 	U.S. 	167 	[93 	LRRM 	2970], 	the 	Supreme
Court 	resolved 	a 	conflict 	between 	labor 	law 	principles 	and 	free
speech 	in 	favor 	of 	the 	First Amendment. 	During 	deadlocked
negotiations 	over 	agency 	fee, 	a 	nonmember 	of 	the 	exclusive
representative 	was 	permitted 	to 	address 	and 	present 	a 	petition
to 	the 	Madison 	school 	board 	opposing 	the 	agency 	fee. 	After
this 	meeting, 	negotiations 	were 	promptly 	concluded 	except 	for
the 	agency 	fee 	proposal. 	Deciding 	in 	favor 	of 	the 	exclusive
representative's 	unfair 	practice 	charge 	against 	the 	employer
for 	bypassing 	the 	negotiations 	process, 	the 	Wisconsin
Employment 	Relations 	Commission 	ruled 	in 	favor 	of 	the 	union 	and
ordered 	the 	school 	board 	to 	cease 	and 	desist 	from 	allowing
nonexclusive 	representatives 	to 	speak.
The 	Supreme 	Court 	found 	this 	required 	ban 	objectionable,
concluding 	that 	the 	danger 	of 	the 	exclusive 	representative
being 	bypassed 	in 	negotiations 	was 	not 	serious 	enough 	to
12see 	Shelton 	v. 	Tucker 	(1960) 	364 	U.S. 	479; 	Pickering 	v.
Board 	of 	Education 	(1968) 	391 	U.S. 	563; 	Givhan 	v. 	Western 	Line
(1979) 	439 	U.S. 	410.
14

warrant 	the 	curtailment 	of 	any 	citizen's 	speech, 	irrespective
of 	his 	employment 	status 	or 	content 	of 	his 	speech. 	The 	Court
also 	noted 	that 	the 	nonmember 	was 	not 	really 	negotiating 	but
was 	speaking 	as 	a 	member 	of 	the 	public, 	and 	was 	not 	authorized
to 	enter 	into 	an 	agreement 	nor 	attempting 	to 	do 	so. 	The 	Court
indeed 	recognized 	the 	difference 	between 	mere 	speech 	and
negotiation 	when 	it 	commented:
Regardless 	of 	the 	extent 	to 	which 	true
contract 	negotiations 	between 	a 	public 	body
and 	its 	employees 	may 	be 	regulated 	- 	an
issue 	we 	need 	not 	consider 	at 	this 	time -
the 	part1c1pat1on 	in 	public 	discussions 	of
public 	business 	cannot 	be 	confined 	to 	one
category 	of 	interested 	individuals. 	City 	of
Madison, 	supra, 	p. 	2973. 	(Emphasis 	added.)
The 	Fourth 	Circuit 	considered 	the 	extent 	to 	which 	speech 	by
employee 	representatives 	could 	be 	regulated 	by 	a 	public 	body 	in
Henrico 	Firefighters 	Assn. 	v. 	Supervisors 	(1981) 	[107 	LRRM
2432]. 	There 	the 	county 	policy 	prohibited 	employees 	from
addressing 	the 	Board 	on 	behalf 	of 	other 	employees, 	but
permitted 	speaking 	on 	one's 	own 	behalf.13 	Representatives 	of
the 	Firefighters 	organization 	were 	barred 	from 	speaking 	on
behalf 	of 	their 	members 	at 	a 	public 	meeting 	of 	the 	board 	of
supervisors. 	The 	Court 	ruled 	that 	the 	county's 	prohibition
violated 	the 	First Amendment. 	However, 	recognizing 	that
13state 	law 	prohibited 	local 	governments 	from 	recogn1z1ng
exclusive 	employee 	organizations 	and 	from 	negotiating
collective 	bargaining 	agreements.
15

the 	board 	was 	constrained 	from 	negotiating 	with 	the
represenatives, 	the 	Court 	noted 	the 	mere 	advocacy 	or
presentation 	of 	the 	union's 	position 	does 	not 	constitute
negotiating 	or 	grieving. 	The 	union 	was 	not 	attempting 	to
engage 	in 	any 	dialogue 	with 	the 	board 	or 	to 	elicit 	a 	response
from 	it 	and, 	consequently, 	the 	absolute 	prohibition 	of 	speech
by 	the 	employee 	representatives 	violated 	the 	First Amendment.
While 	Henrico's 	bar 	against 	open 	forum 	negotiations 	was
predicated 	on 	state 	law 	prohibiting 	the 	process 	entirely,
distinctions 	between 	negotiations 	and 	advocacy 	support 	the
conclusion 	that 	the 	former 	activity may 	be 	prohibited 	at 	a
public 	meeting, 	an 	inference 	which 	may 	be 	drawn 	from 	the
court's 	language 	in City 	of 	Madison, 	supra. 	The 	collective
negotiation 	process, 	including 	that 	established 	by 	EERA, 	gives
parties 	the 	right 	to 	appoint 	their 	own 	negotiators 	and 	forbids
the 	parties 	from 	dictating 	who 	the 	representatives 	of 	the 	other
side 	may 	be.14 	Bypassing 	the 	authorized 	negotiators, 	for
example, 	by 	going 	straight 	to 	the 	school 	board 	of 	trustees 	with
proposals 	or 	concessions, 	would 	subvert 	the 	statutory 	scheme
and 	arguably 	violate 	the 	good-faith 	obligations 	of 	collective
bargaining 	just 	as 	the 	employer's 	effort 	to 	bypass 	the 	union's
negotiators 	by 	seeking 	direct 	access 	to 	the 	membership 	has 	been
l4Booth 	Broadcasting 	Co. 	(1976) 	223 	NLRB 	867 	[92 	LRRM
1335]; 	Retail 	Clerks, 	Local 	770 	(Fines 	Food 	Co.) 	(1977) 	228
NLRB 	1166 	[95 	LRRM 	1062].
16

condemned. 	General 	Electric 	(1964) 	150 	NLRB 	192 	[57 	LRRM
1491]; 	Morris, 	Developing 	Labor 	Law, 	p. 	305. 	We 	further 	note
that 	section 	3549.1 	exempts 	negotiations 	from 	the 	usual 	public
meeting 	laws 	and 	allows 	the 	bargaining 	process 	to 	be 	conducted
confidentially 	between 	the 	parties. 15 We 	consider 	this 	as
some 	evidence 	that 	the 	Legislature 	did 	not 	intend 	to 	depart
from 	the 	traditional 	negotiating 	format 	when 	it 	enacted
EERA. 16
There 	is 	nothing 	in 	the 	record 	here 	to 	indicate 	that 	Reid
15subsection 	3549.l(a) 	through 	(d) 	of 	EERA 	lists 	such
exceptions:
(a) 	Any 	meeting 	and 	negotiating 	discussion
between 	a 	public 	school 	employer 	and 	a
recognized 	or 	certified 	employee
organization.
(b) 	Any 	meeting 	of 	a 	mediator 	with 	either
party 	or 	both 	parties 	to 	the 	meeting 	and
negotiating 	process.
(c) 	Any 	hearing, 	meeting, 	or 	investigation
conducted 	by 	a 	factfinder 	or 	arbitrator.
(d) 	Any 	executive 	session 	of 	the 	public
school 	employer 	or 	between 	the 	public 	school
employer 	and 	its 	designated 	representative
for 	the 	purpose 	of 	discussing 	its 	position
regarding 	any 	matter 	within 	the 	scope 	of
representation 	and 	instructing 	its
designated 	representatives.
16Although 	neither 	party 	raised 	it 	in 	exceptions 	or
proceedings 	below, 	we 	note 	that 	since 	EERA's 	enactment, 	Section
35145.5 	of 	the 	Education 	Code 	was 	passed. 	It 	provides:
It 	is 	the 	intent 	of 	the 	Legislature 	that
members 	of 	the 	public 	be 	able 	to 	place
matters 	directly 	related 	to 	school 	district
17

was 	attempting 	to 	negotiate 	with 	the 	school 	board 	or 	to
litigate 	the 	issues 	when 	she 	sought 	to 	address 	the 	board 	on 	the
advisory 	arbitration 	award. 	We 	do 	not 	know 	what 	she 	intended
to 	say 	since 	the 	District 	policy 	prevented 	her 	from 	saying
anything. 	She 	might 	have 	sought 	only 	to 	urge 	the 	board 	to
accept 	or 	reject 	the 	award. 	The 	District's 	policy 	was 	patently
overbroad 	and 	as 	a 	result 	interfered 	with 	Reid's 	protected
right 	to 	participate 	in 	a 	matter 	of 	employer-employee 	relations
and, 	possibly, 	to 	represent 	unit 	employees 	who may 	have 	been
business 	on 	the 	agenda 	of 	school 	district
governing 	board 	meetings, 	and 	that 	members
of 	the 	public 	be 	able 	to 	address 	the 	board
regarding 	items 	on 	the 	agenda 	as 	such 	items
are 	taken 	up. 	Governing 	boards 	shall 	adopt
reasonable 	regulations 	to 	insure 	that 	this
intent 	is 	carried 	out. 	Such 	regulations 	may
specify 	reasonable 	procedures 	to 	insure 	the
proper 	functioning 	of 	governing 	board
meetings.
This 	subdivision 	shall 	not 	preclude 	the
taking 	of 	testimony 	at 	regularly 	scheduled
meetings 	on 	matters 	not 	on 	the 	agenda 	which
any 	member 	of 	the 	public may 	wish 	to 	bring
before 	the 	board, 	provided 	that 	no 	action 	is
taken 	by 	the 	board 	on 	such 	matters 	at 	the
same 	meeting 	at 	which 	such 	testimony 	is
taken. 	Nothing 	in 	this 	paragraph 	shall 	be
deemed 	to 	limit 	further 	discussion 	on 	the
same 	subject 	matter 	at 	a 	subsequent meeting.
At 	the 	very 	least, 	this 	section 	precludes 	a 	policy 	which
completely 	restricts 	an 	employee's 	addressing 	the 	board 	on
"matters 	directly 	related 	to 	the 	school 	district 	business."
Nevertheless, 	we 	conclude 	that 	the 	limited 	restrictions
described 	above 	are 	permitted 	if 	the 	provisions 	of 	EERA 	and 	the
Education Code 	are 	to 	be 	harmonized.
18

the 	subject 	of 	her 	intended 	remarks. 	As 	such, 	the 	policy
violated 	subsection 	3543.S(a) 	and 	(b).
4. 	The 	Student-Teacher 	Ratio
By 	its 	terms, 	Article 	X of 	the 	collective 	bargaining
agreement 	renders 	the 	teacher-pupil 	ratio 	somewhat 	flexible.
The 	ratio 	is 	described 	as 	a 	"guideline," 	rather 	than 	as
absolute. 	The 	contractual 	commitment 	is 	that, 	"efforts 	shall
be 	made 	to 	maintain" 	the 	ratio 	and 	that 	"when 	schools 	go 	beyond
the 	established 	student-teacher 	ratio 	••• " 	adjustments 	will
be 	made 	as 	soon 	as 	possible 	to 	adhere 	to 	the 	established
ratio. 	Both 	clauses 	indicate 	that 	at 	least 	temporary 	changes
in 	the 	ratio 	were 	contemplated.
There 	is 	no 	indication 	in 	the 	record 	that 	the 	change 	in
ratio 	proposed 	to 	the 	board 	of 	education 	and 	ultimately
implemented 	were 	other 	than 	a 	temporary 	alteration 	permitted 	by
the 	contract 	or 	that 	the 	District 	did 	not 	intend 	to 	return 	to
the 	contractual 	ratio 	as 	soon 	as 	it 	could. 	Finding 	no
unilateral 	change 	prohibited 	by 	law, 	we 	dismiss 	this 	aspect 	of
the 	charge.
REMEDY
Certain 	aspects 	of 	the 	hearing 	officer's 	order 	were 	not
excepted 	to 	by 	either 	party. 	Except 	as 	otherwise 	indicated,
those 	matters 	not 	excepted 	to 	and 	therefore 	not 	considered 	are
adopted 	by 	the 	Board.
19

ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	the 	Public 	Employment
Relations 	Board, 	finds 	that 	the 	San 	Ramon Valley 	Unified 	School
District 	violated 	subsections 	3543.S(a) 	and 	(b) 	of 	the 	EERA 	by
unreasonab~y 	restricting 	access 	by 	the 	exclusive 	representative
at 	four 	schools, 	and 	by 	enforcing 	overly 	broad 	restrictions 	on
the 	exclusive 	representative's 	right 	to 	address 	the 	school
board 	in 	a 	public 	meeting. 	Therefore, 	the 	Board 	hereby 	ORDERS
that 	the 	San 	Ramon 	Valley 	School 	District 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Violating 	subsections 	3543.S(a) 	and 	(b) 	by
restricting 	and 	denying 	access 	to 	agents 	of 	the 	exclusive
representative 	to 	faculty 	lounges 	during 	nonduty 	hours.
(2) 	Violating 	subsection 	3543.S(b) 	by 	enforcing 	its
rule 	which 	prevents 	representatives 	of 	the 	exclusive
representative 	from 	addressing 	the 	school 	board 	on matters
relating 	to 	employer-employee 	relations 	other 	than 	for 	the
purpose 	of 	negotiating 	or 	litigating 	grievances 	or 	arbitrations.
(3) 	Violating 	subsection 	3543.S(a) 	by 	threatening
Roberta 	Gleason 	with 	a 	lawsuit, 	and 	violating 	subsections
3543.S(a) 	and 	(b) 	by 	making 	threatening 	and 	intimidating
statements 	to 	her 	which 	tended 	to 	discourage 	her 	from 	engaging
in 	protected 	activities 	and 	tended 	to 	interfere 	with 	the 	right
of 	the 	Association 	to 	represent 	its 	members.
20

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTION:
(1) 	Within 	seven 	(7) 	workdays 	of 	the 	service 	of 	this
Decision, 	post 	at 	all 	school 	sites, 	and 	all 	other 	work
locations 	where 	notices 	to 	certificated 	employees 	customarily
are 	placed, 	copies 	of 	the 	Notice 	attached 	as 	an Appendix. 	Such
posting 	shall 	be 	maintained 	for 	a 	period 	of 	twenty 	(20)
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	ensure 	that 	said
Notice 	is 	not 	reduced 	in 	size, 	altered, 	defaced 	or 	covered 	by
any 	other 	material.
(2) 	Notify 	the 	San 	Francisco 	regional 	director 	of 	the
Public 	Employment 	Relations 	board, 	in 	writing, 	within 	20
calendar 	days 	of 	service 	of 	this 	Decision, 	of 	the 	steps 	the
District 	has 	taken 	to 	comply 	herewith.
This 	ORDER 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	San 	Ramon 	Valley 	Unified 	School
District.
All 	other 	charges 	are 	hereby 	DISMISSED.
Irene 	Tovar, 	Member
21

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in 	Case 	No. 	SF-CE-349, 	San 	Ramon Valley
Education Association, 	CTA/NEA v. 	San 	Ramon Valley 	Unified
School 	District, 	in which 	all 	parties 	had 	a 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	San Ramon 	Valley
Unified 	School 	District 	violated 	subsections 	3543.S(a) 	and 	(b)
by 	unreasonably 	restricting 	access 	of 	the 	Association's
representative 	to 	the 	faculty 	lounges 	at 	Walt 	Disney,
Monte 	Video, 	Armstrong, 	and 	Rancho 	Romero 	Schools, 	during
nonworking 	time 	and 	by 	preventing 	a 	representative 	of 	the
Association 	from 	addressing 	the 	school 	board 	at 	a 	public
meeting 	on 	matters 	concerning 	employee-employer 	relations 	other
than 	negotiating 	or 	litigating 	grievances 	and 	arbitrations. 	It
has 	also 	been 	determined 	that 	the 	District 	violated 	subsection
3543.S(a) 	and 	(b) 	by 	threatening 	to 	sue 	Roberta 	Gleason 	after
she 	spoke 	at 	a 	school 	board 	meeting 	and 	attempting 	to
discourage 	her 	from 	seeking 	the 	Association's 	assistance 	on
employer-employee 	relations. 	As 	a 	result 	of 	this 	conduct, 	we
have 	been 	ordered 	to 	post 	this 	notice 	and 	abide 	by 	the
following:
We 	will:
CEASE 	AND 	DESIST 	FROM:
1. 	Restricting 	the 	access 	of 	representative 	of 	the
Association 	to 	faculty 	lounges 	during 	nonduty 	hours;
2. 	Preventing 	Association 	representatives 	from 	addressing
the 	school 	board 	on matters 	relating 	to 	employee-employer
relations, 	other 	than 	for 	the 	purpose 	of 	negotiating 	or
litigating 	grievances 	or 	arbitrations.
3. 	Threatening 	or 	intimidating 	Roberta 	Gleason 	for
engaging 	in 	protected 	activity.
SAN 	RAMON 	VALLEY 	UNIFIED SCHOOL 	DISTRICT
Dated: ------- By
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED FOR TWENTY
(20) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST 	NOT
BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.