Rio Hondo Community College District (PERB 0260E)

STATE 	OF 	CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
RIO HONDO FACULTY ASSOCIATION, 	CTA/NEA,
C h a r g i n g 	P a r t y ,
v .
RIO HONDO 	COMMUNITY 	COLLEGE 	D I S T R I C T ,
Respondent.
Case 	No. 	LA-CE-1079
PERB 	D e c i s i o n 	No. 	260
November 	3 0 , 	1982
Appearances; 	Charles R. 	Gustafson, Attorney for Rio Hondo
Faculty Association, CTA/NEA; Patrick D. 	Sisneros, Attorney
(Wagner 	& Wagner) 	for Rio Hondo Community College District.
Before Tovar, 	Jaeger 	and Jensen, Members.
DECISION
TOVAR, 	Member: 	This case 	is 	before 	the Public Employment
Relations Board 	(PERB 	or Board) 	on exceptions 	filed 	by 	the
Rio Hondo 	Community College 	District 	(District) 	to 	the 	proposed
decision of a 	hearing officer. 	In his proposed decision, 	the
hearing 	officer 	considered 	charges 	that 	the District 	violated
subsection 	3543.5(a) 	of 	the Educational Employment Relations
Act 	(EERA 	or Act)l 	by 	issuing 	letters 	to District 	employees
1The 	EERA 	is 	codified 	at 	Government Code 	section 	3540
et 	seq. 	All 	statutory 	references are to 	the Government Code
unless 	otherwise 	noted.
Section 	3543.5 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
)
)
)
)
)
)
)
)
)
________________ )

Gary Curtis 	and Leonora Davila which 	were 	placed 	in the
personnel 	files 	of 	those 	employees 	and which 	reprimanded 	them
for 	uttering 	the 	terms 	"bullshit" 	and 	"chickenshit,"
respectively, 	at 	a meeting of District faculty 	and 	staff. 	He
also 	considered 	a discrete 	charge 	that 	the District 	violated
subsection 3543.5 (a) 	by processing 	those letters of 	reprimand
in 	a manner 	inconsistent 	with 	procedures 	established 	by
District policy. 	Finally, 	he 	considered 	charges 	that 	the
District 	violated 	subsection 	3543.5(a) 	by 	denying 	to 	employees
Curtis 	and Davila 	their 	right 	to 	the 	representation of 	their
employee 	organization 	at meetings 	with 	the 	District
superintendent, 	and subsection 	3543.5(b) 	by denying 	the
Association 	its 	right 	to 	represent 	them.
The 	hearing 	officer 	found 	that Curtis 	had 	indeed 	said
"bullshit" 	at 	the meeting, 	and 	concluded 	that 	the 	disciplinary
letter 	was 	not 	issued 	to him in violation of EERA. 	He found,
however, 	that 	the 	superintendent 	was 	mistaken 	in believing 	that
Davila 	had 	said 	"chickenshit" 	at 	the meeting, 	and 	concluded
that 	issuance 	of 	the 	disciplinary letter 	to her 	did violate 	the
discriminate 	against 	employees, 	or otherwise
to interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
N
• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

Act 	as 	charged. 	So finding, 	he 	did 	not 	rule on 	the 	charge 	that
the 	District 	had 	violated 	the Act 	in 	its 	manner 	of 	processing
the letter 	to Davila, 	but 	concluded 	that 	the District 	did
violate 	the 	Act 	by 	failing 	to 	follow 	its 	established 	procedures
in processing 	the 	letter 	to Curtis.
Finally, 	the 	hearing officer 	concluded 	that 	the 	District
had 	violated 	the Act 	as 	charged 	by 	denying 	to Curtis 	and Davila
their 	right 	to 	the 	representation of 	their 	employee
organization 	and 	by 	denying 	to 	the Association 	its 	right 	to
represent 	them.
The 	District 	excepts 	to 	each 	of 	the 	hearing officer's
conclusions 	which 	find 	that 	it 	violated 	the Act. 	No exceptions
were 	filed 	by 	the 	Rio Hondo Faculty Association, 	CTA/NEA
(Association).2
After 	considering 	the 	proposed 	decision, 	the 	exceptions
thereto 	and 	the 	entire 	record, 	the Board 	affirms 	the 	hearing
officer's 	conclusions 	that 	the 	District 	violated 	subsection
3543.5(a) 	by placing a letter 	of 	reprimand 	in 	the 	personnel
file of 	Leonora Davila and 	by processing 	the 	letter 	of
reprimand 	issued 	to Curtis 	in 	a manner 	inconsistent 	with 	its
own procedures. 	So, 	too, 	the Board affirms 	the 	hearing
officer's 	conclusion 	that 	the District 	violated 	subsections
2Because 	no party 	filed 	exceptions 	to 	the 	hearing
officer's 	finding 	that 	the 	issuance 	of 	the 	reprimand 	to Curtis
did not 	violate 	the Act, 	that 	finding 	is not 	before 	the 	Board,
and 	no 	ruling 	is 	made 	thereon.
W	
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3543.5(a) 	and 	(b) 	by refusing 	to permit 	the Association to
represent Leonora Davila 	and Gary Curtis 	at meetings 	with 	the
District 	superintendent.
FACTS
On September 	18, 	1979, 	the Rio Hondo Community College
District 	held 	a year-opening 	assembly of 	faculty, 	staff 	and
administration 	in 	the 	campus 	theatre. 	The 	assembled 	employees
were addressed by Dr. 	L. 	A. 	Grandy, District
president/superintendent, Don Jenkins, 	vice-president of
academic affairs, J. 	Albanese, vice-president of administrative
affairs, Mahlon Woirhaye, 	president of 	the academic senate, 	and
Mary Ann Pacheco, 	president 	of 	the Association.
Questionnaires 	prepared 	by 	the Association were 	distributed
to 	faculty members 	as 	they entered 	the 	campus 	theatre. 	The
distribution 	and 	collection of 	these 	documents 	was 	performed 	by
members 	of 	the Association's 	executive 	committee, 	consisting
of: 	Association vice-president 	(and president-elect),
Gary Curtis; 	secretary, Judy Henderson; 	newsletter 	editor,
Leonora Davila; 	and member 	(and past president), 	Bert Davis.
Because 	of 	their 	involvement 	in distributing 	the
questionnaires, 	these 	individuals 	remained 	standing 	toward 	the
rear 	of 	the 	threatre 	during most of 	the meeting.
At 	the 	conclusion of 	the 	last 	speaker's 	presentation,
Dr. 	Grandy 	rose 	and made 	some 	closing 	remarks 	indicating 	that
the 	agenda 	had 	been 	completed. 	At 	that point, 	Association
Vice-President Curtis 	left 	his position 	at 	the 	rear 	of 	the
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theatre, 	moving 	approximately a 	third of 	the way down 	the 	left
aisle, 	in order 	to pose some questions 	to Dr. 	Grandy regarding
the 	course 	of 	the 	ongoing 	negotiations 	between 	the Association
and 	the 	District. 	Curtis 	several 	times 	attempted 	to elicit
responses 	from Dr. 	Grandy to his 	questions, 	but Dr. 	Grandy
explained 	that 	he 	was 	not 	prepared 	to respond 	to such
questions. 	At one 	point 	in 	the 	exchange 	between Curtis 	and
Dr. 	Grandy, 	Leonora Davila heard Grandy say, 	"Well, 	we have
some 	thoughts." 	In reaction to 	this, 	Davila spoke out 	from her
position 	in the 	rear 	of 	the 	auditorium, 	saying, 	"We have 	some
thoughts 	too, 	Dr. 	Grandy." 	Bert Davis 	also joined the
discussion, 	suggesting 	in response 	to Dr. Grandy's refusals
that, 	if 	it 	presently was 	not a 	good 	time 	to respond 	to the
questions 	of 	faculty members, 	then perhaps Dr. 	Grandy could
make 	himself 	available 	at 	another 	time 	to meet 	with 	faculty
members 	and discuss problems. 	Mr. 	Curtis made 	further 	efforts
to elicit 	answers 	to his 	questions, 	but Dr. 	Grandy continued 	to
assert 	that 	he 	was 	not 	prepared 	to respond 	to 	such 	questions 	in
the 	present 	forum. 	Curtis, 	having 	grown 	frustrated with 	the
situation, 	abruptly turned 	to leave 	the 	meeting 	and, 	while
turning, stated, 	"That's bullshit!"
Dr. 	Grandy 	testified 	that 	following Curtis' 	last 	utterance
he 	heard Leonora Davila exclaim, 	"That's 	chickenshit."
Numerous witnesses, 	however, 	including two members of District
administration, 	testified 	that 	they were 	present 	and 	in a
position 	to 	have 	heard 	any 	comment 	directed 	from Davila 	to
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Dr. 	Grandy, 	but 	that 	they heard no such 	comment 	as 	the one
Dr. 	Grandy testified to. 	Thus, 	while no evidence was 	presented
which would 	cast 	doubt on Dr. 	Grandy's 	good faith, 	the
preponderance 	of 	the 	evidence 	supports 	Davila's 	claim 	that 	she
did not say, 	"That's chickenshit," 	or 	otherwise 	utter 	any
profanity at 	the 	September 	18 	assembly.
On October 	2, 	1979, 	Dr. 	Grandy caused letters of reprimand
to be sent 	to Mr. 	Curtis 	and Ms. 	Davila. 	The letters 	accused
Curtis 	and Ms. 	Davila of profaning Dr. 	Grandy at 	the
September 	18 meeting 	and 	thereby 	engaging 	in 	unprofessional
conduct.
The 	same day the 	letters 	were 	sent, 	Dr. 	Grandy delivered
the originals 	to 	the District's 	director 	of 	personnel 	and
instructed 	her 	to place 	the 	letters 	in 	the 	respective
employee's 	files. 	She did so that 	afternoon.
Dr. 	Grandy's 	uncontroverted 	testimony 	is 	that 	these 	two
letters 	are 	the only letters 	of 	reprimand 	he 	has 	ever 	issued
during 	his 	tenure 	as District 	president. 	The 	District 	has 	a
written 	policy 	setting 	forth 	the 	procedure 	to 	be 	used 	in
placing 	letters of 	reprimand 	in personnel 	files. 	That 	policy
is 	essentially 	a 	restatement 	of Education Code 	section 	87031
and provides 	as 	follows:
Information of 	a derogatory nature 	shall 	not
be 	entered or 	filed 	unless or 	until 	the
employee 	is 	given 	notice 	and 	an opportunity
to 	review 	and 	comment on 	the 	information.
The 	employee 	is 	entitled 	to release 	time
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from 	duties 	to 	review 	the 	derogatory
material. 	If 	desired, 	the employee may
attach 	his 	own 	comments 	to 	the 	derogatory
statement.
Assistant 	Superintendent Jenkins 	testified 	that 	in
processing 	employee 	performance 	evaluation 	reports 	the
District's practice 	has 	been 	to 	act 	consistently with 	the
above-set-forth 	policy 	by 	affording 	employees 	an opportunity 	to
review 	and 	comment 	prior 	to 	filing 	a 	report 	which 	contains 	an
adverse 	review.
Because 	the 	personnel 	director 	filed 	the 	letters 	the 	same
day Dr. 	Grandy 	issued 	them, 	neither Curtis 	nor Davila were
afforded 	the 	opportunity 	to 	review 	and 	comment 	upon 	their
respective letters 	of 	reprimand 	prior 	to 	the 	placement 	of 	those
letters 	in their personnel 	files. 	However, Dr. 	Grandy
testified 	that 	he 	believed 	that, 	by 	including 	in 	the 	reprimand
letters 	a 	statement 	that 	Curtis 	and Davila would 	be 	permitted
to 	review 	and 	comment on 	those letters, 	he was extending 	to
them 	an opportunity to so 	review 	and 	comment, 	and was 	thus 	in
compliance 	with 	the District's 	policy.
On October 	4, 	1979, 	Davila met with Gil Acosta, 	a
representative of 	the California Teachers Association, 	to
discuss 	the 	letter 	of 	reprimand. 	Davila then 	attempted 	to meet
with Dr. Grandy, 	accompanied 	by 	her 	chosen representative,
Mr. 	Acosta. 	Dr. 	Grandy, 	however, 	refused to meet with Davila
with Mr. 	Acosta present.
7
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Later 	that 	day, 	Mr. 	Acosta met 	with Curtis 	and advised 	him
that, 	based on Dr. 	Grandy's previous refusal, 	it would be
futile 	for Curtis 	to 	attempt 	to meet 	with Dr. 	Grandy with
Mr. 	Acosta present.
Curtis 	and 	Davila 	subsequently met 	separately with
Dr. 	Grandy, 	each 	in the presence of Mahlon Woirhaye, 	president
of 	the 	academic senate, 	and 	discussed 	the 	letters 	of
reprimand. 	Both 	employees 	expressed 	their 	feelings 	that 	such 	a
disciplinary measure 	was 	inappropriate. 	Davila emphatically
denied 	that 	she 	ever 	uttered 	the 	term 	"chickenshit" 	at 	the
September 	18 meeting. 	Dr. 	Grandy offered 	to seal 	the 	letter
that 	was 	in Davila's file 	in 	an 	envelope 	within 	the 	personnel
file, 	accessible only to himself. 	Davila refused 	to agree 	to
this 	resolution of 	the matter, 	and maintained 	to the 	close of
the 	meeting 	that 	the 	letter 	should 	be 	completely 	removed 	from
her 	file. 	Curtis 	similarly 	argued 	that 	the 	letter 	should 	be
withdrawn 	from 	his 	file. 	Dr. 	Grandy 	refused 	to 	accede 	to 	the
request of 	either 	employee.
DISCUSSION
The 	Issuance 	of 	the Letter 	to Davila
The 	District 	has 	excepted 	to 	the 	hearing officer's
conclusion 	that 	the 	placement 	of 	the letter 	of 	reprimand 	in 	the
personnel 	file of 	Leonora Davila was 	a violation of 	subsection
3543.5(a). 	We 	affirm 	the 	hearing 	officer 	in that 	conclusion
for 	the 	reasons 	which 	follow.
88

At 	the faculty-staff 	assembly of September 	18, 	1979, 	the
executive 	officers 	of 	the 	Association were 	extensively 	involved
in activities on 	behalf 	of 	the Association. 	Initially, 	they
distributed 	questionnaires, 	prepared 	by and on 	behalf 	of 	the
Association, 	to faculty members 	as 	they entered 	the meeting
hall. 	Some of 	these officers 	remained 	standing 	at 	the 	rear 	of
the 	hall 	throughout 	the speakers' addresses 	in order 	to
distribute questionnaires 	to late 	arrivals. 	When Dr. 	Grandy
signalled 	the 	end 	of 	the meeting, 	these 	officers led 	an 	effort,
supported 	by numerous 	faculty members, 	to hold an 	impromptu
question 	and 	answer 	session 	between 	themselves 	and Dr. 	Grandy.
Gary Curtis, 	as Association vice-president 	and president-elect,
was 	the leading 	figure 	in 	this 	effort. 	Executive 	committee
members 	Leonora 	Davila and 	Bert Davis 	also spoke 	out 	to
Dr. 	Grandy 	in an 	effort 	to 	get 	answers 	to faculty 	questions
regarding 	the 	course of 	the 	on-going negotiations.
We 	find 	that 	the 	efforts 	of 	these 	executive 	officers 	as 	a
group, 	and of Leonora Davila in particular, 	to engage
Dr. 	Grandy 	in a 	question 	and 	answer 	session constituted
participation 	in 	the 	activities 	of 	an 	employee 	organization
within 	the 	meaning 	of 	section 	3543 	of 	the 	Act.3
3Section 	3543 	provides 	as 	follows:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate in the
activities 	of 	employee organizations 	of
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The Association 	charges 	that 	Dr. 	Grandy 	issued 	the 	letter
of 	reprimand 	to Davila 	because of 	her 	protected 	activities 	at
the meeting of September 	18, 	and 	that 	the District 	has
therefore violated subsection 3543.5 (a). 	In Novato Unified
School District 	(4/30/82), 	PERB Decision No. 	210, 	the Board set
forth 	a 	test 	to 	be 	applied where 	a 	party 	has 	charged 	that 	an
employer 	has 	taken 	adverse 	action 	against 	an 	employee motivated
by 	the 	employee's 	exercise of 	rights 	granted 	by 	the EERA. 	We
held 	that 	a prima 	facie 	case 	of 	a violation of
subsection 	3543.5(a) 	will 	be made out where 	the 	charging 	party
shows 	that 	employee 	activity protected 	by 	the Act 	was 	a
motivating 	factor 	in 	an 	employer's 	decision 	to 	take 	adverse
action 	against 	the 	employee. 	Upon such 	a showing, 	the 	burden
of producing 	evidence 	shifts 	to 	the 	employer 	to show 	that 	it
would 	have 	imposed 	the 	discipline 	as 	it 	did 	even 	in 	the 	absence
of 	the 	identified 	protected 	activity.
Here, 	we have 	found 	that, 	in participating 	in the
collective 	efforts 	of Association leaders 	and members 	to 	engage
Dr. 	Grandy 	in a question 	and answer 	session, 	Davila was 	engaged
in 	activity protected 	by 	the Act. 	The District 	has maintained,
however, 	that 	its 	action was 	not 	violative of 	the Act 	because
their 	own 	choosing 	for 	the 	purpose of
representation on 	all matters 	of
employer-employee relations. 	. 	. 	.
10
• 	• 	• 	• 	• 	• 	• 	•

Dr. 	Grandy was prompted 	to 	issue 	the 	reprimand only 	by his
perception 	that 	Davila 	had 	uttered 	the 	term 	"chickenshit" 	and
his 	judgment 	that 	discipline was 	therefore 	necessary 	in 	the
interest 	of 	maintaining 	his 	authority as 	superintendent.
It 	is 	undisputed that Dr. Grandy's subjective motivation in
issuing 	the 	reprimand 	was 	his 	perception 	that 	Davila 	had 	said
"chickenshit." 	The 	hearing officer 	nevertheless found, 	based
upon 	the 	preponderance 	of 	the 	evidence, 	that Davila did not
actually 	utter 	that word. 	The District excepts 	to 	this 	factual
determination, 	asserting 	that Davila did utter 	the 	term, 	or
that 	in 	any 	event Dr. 	Grandy 	had 	a 	reasonable 	and justifiable
basis 	for 	believing 	that 	she 	had.
We 	find 	it 	unnecessary 	to 	resolve 	this 	factual 	dispute,
since 	the 	reprimand of 	Davila would 	have 	been 	unlawful 	whether
or 	not 	the District, 	in fact, 	had a reasonable basis for
concluding 	that 	she 	uttered 	the 	word 	"chickenshit" 	in the
course 	of 	the September 	18 	discussion.
Thus, 	were we to conclude 	that 	the District had no
reasonable 	basis 	for 	believing 	that Davila 	used 	the 	word
"chickenshit", 	then 	the 	inquiry would end 	there, 	and we would
find 	that 	the District 	had 	no 	defense 	to 	the 	charge 	that 	the
discipline 	resulted 	from 	her 	participation 	in 	protected
activity. 	However, 	even 	if we were 	to conclude that the
District 	did 	have 	a reasonable 	basis 	for 	believing 	that 	Davila
had 	uttered 	the 	epithet, 	the District 	still would 	not 	have 	been
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privileged 	to 	discipline 	her. 	The 	imposition of 	discipline
would 	be 	permissible 	in such 	circumstances 	only 	if 	we were 	to
find 	that 	the 	alleged 	utterance was 	so opprobrious 	as 	to
deprive 	an 	otherwise 	protected 	course 	of 	conduct 	of 	its
statutory 	protection.
This 	issue 	has 	been 	carefully considered 	in private 	sector
cases. 	Thus, 	in NLRB v. 	Thor Power Tool Co. 	(1956) 	351 F.2d
584 	[60 	LRRM 2237] 	at 585, 	the Court 	explained that:
As 	other 	cases 	have made 	clear, 	flagrant
conduct of 	an employee, 	even though
occurring 	in 	the 	course of 	section 	7
activity, 	may 	justify disciplinary action 	by
the 	employer. 	On the other 	hand, 	not 	every
impropriety 	committed 	during 	such 	activity
places 	the 	employee 	beyond 	the 	protective
shield of 	the 	act. 	The 	employee's 	right 	to
engage 	in 	concerted 	activity may 	permit 	some
leeway 	for 	impulsive 	behavior, 	which must 	be
balanced 	against 	the 	employer's 	right 	to
maintain 	order 	and 	respect.
This principle 	is 	similarly expressed 	in NLR
- B v. 	Blue Bell,
Inc. 	(1955) 	219 	F.2d 796 	[35 LRRM 2549], 	in which the Court
explained 	that 	an 	employee's 	speech may lose 	its 	protected
status, 	thus 	leaving the 	employer 	free 	to impose discipline, 	if
the 	speech 	"is 	so 	disrespectful 	of 	the 	employer 	as 	seriously 	to
impair 	the maintenance 	of 	discipline." 	Blue Bell, 	supra,
at 797.
The 	District's Failure 	to Observe 	Established 	Procedural
Policies 	in Filing 	the Letters
The 	District 	has 	excepted 	to 	the 	hearing 	officer's
conclusion 	that, 	by failing 	to 	afford Gary Curtis 	an
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opportunity 	to 	review 	and 	comment 	upon 	the letter 	of 	reprimand
prior 	to the 	placement 	of 	the 	letter 	in his personnel 	file, 	the
District violated 	subsection 	3543.5 (a) 	of 	the EERA. 	We 	affirm
the 	result 	reached 	by 	the 	hearing 	officer 	for 	the 	reasons 	which
follow.
The 	District's 	procedural 	policy on 	the 	filing of
derogatory material, 	set forth supra, 	at p. 	6, 	plainly states
that 	the District 	is 	not 	to place 	derogatory material 	in an
employee's 	personnel 	file 	until 	he 	or 	she 	has 	been 	given 	an
opportunity 	to 	review 	and 	comment 	on 	the 	material. 	It 	is
undisputed, 	however, 	that, 	pursuant to Dr. Grandy's direction,
the 	letter 	of 	reprimand 	issued 	to Curtis 	was 	filed 	before
Curtis 	received 	or 	otherwise 	had 	notice of 	the letter. 	It 	is
apparent, 	therefore, 	that 	the District 	failed to provide Curtis
the 	opportunity 	prescribed 	by District 	policy 	to 	review 	and
comment 	on 	the 	letter 	of 	reprimand prior 	to 	its 	filing.
Pursuant to the test set forth in Novato, 	supra, 	at p. 	13,
a 	prima facie 	charge 	of 	reprisal 	in violation of 	subsection
3543.5 (a) 	may 	be made out 	by a showing 	that 	an employee's
exercise 	of 	rights 	guaranteed 	by 	the EERA was 	a motivating
factor 	in 	an 	employer's 	decision 	to 	take 	adverse 	action 	against
the 	employee. 	Here, 	the 	evidence 	shows 	that 	at 	the
September 	18 	staff 	meeting Curtis 	was 	engaged 	in 	activity
protected 	by 	the EERA, 	and 	that 	the 	letter 	of 	reprimand was
issued 	to 	him expressly 	as 	a 	result 	of 	his 	protected 	conduct.
13

See our 	discussion, 	supra, 	at pp. 	9 	and 14 regarding the
protected 	activity of 	Leonora Davila.
The Association 	charges 	that 	the District 	varied 	from 	its
established 	policy 	and 	denied Curtis 	an 	opportunity 	to 	review
his letter 	of 	reprimand prior 	to 	its 	filing 	because of 	his
exercise 	at 	the September 	18 meeting of 	rights 	guaranteed 	by
the EERA, 	and 	because 	of 	his 	history of Association 	activism
generally. 	While Dr. 	Grandy had 	never 	before 	issued 	a letter
of 	reprimand 	prior 	to 	those 	sent 	to Curtis 	and Davila,
Assistant 	Superintendent Jenkins 	testified 	that 	the 	District
did observe 	the 	policy 	of 	affording 	employees 	an opportunity 	to
review 	and 	comment 	prior 	to 	filing 	performance 	evaluation
reports 	which 	contained 	negative 	commentary.
We find, 	based on 	the 	evidence 	that 	the 	letter 	of 	reprimand
to Curtis 	was 	itself 	prompted 	by his 	exercise 	of 	protected
rights, 	that Curtis had a high profile as 	an Association
activist, 	and 	that 	the District's 	rules 	required 	the
opportunity 	for 	prior 	review 	and 	comment, 	that Charging 	Party
has 	raised 	the 	inference 	that Curtis' 	exercise of protected
rights 	was 	a motivating 	factor 	in 	the District's 	decision 	to
deny 	to Curtis 	an opportunity 	to 	review 	and 	comment 	on 	the
letter 	of 	reprimand 	prior 	to 	its 	filing.
The District 	has 	offered 	no 	affirmative 	defense which would
lead 	us 	to conclude 	that 	it would have 	filed 	the 	letter 	when 	it
did 	even 	if Curtis 	had 	not 	engaged 	in protected activity.
14

Instead, 	its 	defense is 	that 	the 	policy was 	in fact 	complied
with 	because 	notice of 	an opportunity to 	review 	and 	comment 	was
set 	forth 	in 	the 	letter 	itself 	and 	that Curtis was 	thus 	"given"
that 	opportunity at 	the 	time Dr. 	Grandy penned 	those words 	into
the text 	of 	the 	letter.
The 	policy4 expressly states 	that 	the 	required 	notice 	and
opportunity must 	be 	"given" 	before 	the 	derogatory material may
be 	filed. 	Thus, 	if 	the District were correct 	in arguing that
Dr. 	Grandy's 	act 	of 	writing 	satisfied 	its 	obligation 	to 	"give"
notice 	and opportunity, 	then 	it would follow 	that Dr. 	Grandy
needn't 	have 	actually sent 	the letter 	to Curtis. 	That 	is, 	he
could 	have 	complied with 	the 	policy 	by writing 	the 	letter 	as 	he
did 	(thus 	"giving" 	notice 	and opportunity) 	and 	then 	filing 	it,
without more. 	We 	find 	the 	District's 	construction patently
absurd, 	and reject 	it. 	We conclude, 	therefore 	that 	the
District 	violated 	subsection 	3543.5 (a) 	by denying Curtis 	an
opportunity 	for 	prior 	review 	and 	comment, 	in 	conformance 	with
established District policy, 	in 	reprisal 	for 	his 	exercise of
rights 	guaranteed 	by EERA.
The 	Denial 	of 	Association Representation
The Association 	charged 	that 	both 	itself 	and 	the 	two
disciplined 	employees 	were 	denied 	rights 	provided 	by 	the 	Act
when Dr. 	Grandy refused 	to 	permit Association representative
4As 	noted 	in the Statement of Facts, 	supra, 	the
District's 	policy 	is 	a 	restatement 	of Education Code 	section
87031.
15

Acosta 	to 	be 	present 	at 	the 	meetings 	he 	agreed 	to hold with
Davila 	and Curtis.
Section 	3543 	of 	the Act 	(set 	forth 	in relevant 	part 	at
footnote 3, supra) 	provides, 	inter 	alia, 	that public school
employees have 	the right 	to ". 	. 	. 	participate in the
activities 	of 	employee 	organizations 	of 	their 	own 	choosing 	for
the 	purpose of 	representation on 	all 	matters 	of
employer-employee relations 	. 	. 	. 	." 	Subsection 3543.1 (a)
provides 	that 	"Employee 	organizations 	shall 	have 	the 	right 	to
represent 	their members 	in 	their 	employment 	relations 	with
public school employers 	. 	. 	. 	." 	The full scope of 	section
3543 	and subsection 	3543.1(a) 	has 	not 	yet 	been 	determined 	by
the 	Board. 	While 	the 	language 	of 	these 	sections 	differs
somewhat 	from 	the 	parallel provisions 	of 	the National Labor
Relations 	Act,5 an 	examination of 	cases 	decided 	in the
private 	sector 	may 	nevertheless 	be 	helpful 	in 	determining 	the
5The National Labor 	Relations Act 	is 	codified 	at 	29
U.S.C, 	section 150, 	et seq. 	Section 7 of 	that act has been
identified 	in private 	sector 	cases 	as 	embodying 	the 	right 	of
employees 	to 	be 	represented 	by 	their 	employee 	organization.
Section 7 provides 	as 	follows:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to form, 	join or 	assist
labor 	organizations, 	to 	bargain collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other mutual 	aid or
protection 	. . . .
16

reasonableness 	of 	applying 	these EERA provisions 	to 	the
meetings 	at 	issue 	here.
In NLRB v. J. Weingarten, 	Inc. 	(1975) 	420 U.S. 	251 	[88 LRRM
-
2689], 	the Supreme Court indicated 	that employees 	have 	a
protected 	right 	to 	the 	presence 	of 	their 	union 	representative
at 	an 	investigatory 	interview which 	the 	employee 	reasonably
believes 	will 	result 	in disciplinary action.
In Baton Rouge Water Works Company 	(1979) 	246 	NLRB 	995, 	the
NLRB 	reaffirmed 	its 	rule 	that 	the 	right 	to 	union 	representation
applies 	to a 	disciplinary 	interview, 	whether 	labelled
investigatory or 	not, 	so long 	as 	the 	interview 	in question 	is
not merely 	for 	the 	purpose 	of 	informing 	the 	employee 	that 	he 	or
she 	is 	being disciplined. 	The NLRB 	stated, 	at p. 	997:
. . . 	To 	the 	extent 	that 	the Board 	has 	in
the 	past 	distinguished 	between 	investigatory
and disciplinary 	interviews, 	in light of
Weingarten 	and our 	instant 	holding, 	we no
longer 	believe such 	a 	distinction 	to 	be
workable or 	desirable. 	It was 	this
distinction 	which 	Certified Grocers
abandoned, 	and 	to 	that 	extent 	we 	still
believe 	the 	decision was 	correct. 	Thus, 	the
full 	purview 	of 	protections 	accorded
employees 	under Weingarten 	apply 	to 	both
"investigatory" 	and 	"disciplinary"
interviews, 	save only 	those 	conducted for
the 	exclusive 	purpose 	of 	notifying 	an
employee 	of 	previously 	determined
disciplinary 	action.
We 	stress 	that 	we 	are 	not 	holding 	today 	that
there 	is 	no 	right 	to the presence of 	a 	union
representative 	at 	any 	"disciplinary"
17
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

interview. 	Indeed, 	if 	the 	employer 	engages
in 	any 	conduct 	beyond 	merely 	informing 	the
employee 	of a 	previously made 	disciplinary
decision, 	the 	full panoply of protections
accorded 	the 	employee 	under Weingarten may
be applicable. . . 	.
In the 	instant 	case, 	the 	employer 	clearly went 	beyond
merely 	informing 	the 	employees 	of 	the 	imposition 	of
discipline. 	Although 	Dr. 	Grandy could 	have 	satisfied 	his
obligation 	under 	the Education Code 	by 	allowing 	the 	employees
to review 	the 	letter 	and 	state 	their 	comments 	without more, 	he
went much further. 	It 	appears 	that Dr. 	Grandy came 	to the
meeting 	prepared 	to propose 	a modification of 	the 	discipline.
Dr. 	Grandy's 	testimony was 	that 	during 	the meeting 	with Davila
he 	offered 	to seal 	the 	derogatory 	letter 	in an 	envelope 	within
the 	personnel 	file, 	accessible only to himself. 	Similarly, 	in
meeting with 	Curtis, 	Grandy 	suggested 	that 	a 	solution 	could
perhaps 	be worked out 	regarding removal 	of 	the 	letter 	if 	the
lawyers 	for 	the Association 	and 	the 	District 	could come 	to 	some
agreement.
This 	sort 	of 	give 	and 	take 	goes 	beyond 	a mere 	employer
statement 	of 	the 	imposition 	of 	discipline or 	solicitation 	of
employee comments 	pursuant 	to the Education Code. 	Rather, 	it
was 	the sort 	of meeting which, 	we find, 	gives 	rise 	to the 	right
to representation as 	set 	forth 	at 	section 	3543 of 	the Act.
Davila 	and Curtis 	had 	a 	right 	to 	the 	assistance 	of 	the
Association at 	their meetings with Dr. 	Grandy. 	Dr. 	Grandy's
18

refusal 	to 	permit Gil Acosta 	to 	attend 	these meetings,
therefore, was 	a denial of Curtis' 	and Davila's right 	to be
represented, 	and was 	thus 	in violation of 	subsection
3543.5(a). 	So, too, Dr. Grandy's refusal was a denial to the
Association of 	its right, pursuant to subsection 3543.1 (a) , 	to
represent 	its 	members 	and 	was 	therefore 	in violation of
subsection 3543.5(b).
REMEDY
It 	has 	been 	found 	that 	the Rio Hondo Community College
District 	violated 	subsection 	3543.5(a) 	of 	the 	EERA by 	placing 	a
letter 	of 	reprimand 	in 	the 	personnel 	file 	of Leonora Davila 	as
a 	result of 	her 	protected 	activities 	at 	a 	faculty-staff meeting
on September 	18, 	1979. 	It has also 	been found 	that 	the
District 	violated 	subsection 	3543.5(a) 	by 	denying 	to
Gary Curtis 	the 	benefit 	of 	an 	established District 	policy 	in
reprisal 	for 	his 	protected 	activities 	at 	the 	above-mentioned
staff 	meeting. 	It 	has further 	been 	found 	that 	the District
violated 	subsection 	3543.5(a) 	by 	denying 	to Davila and Curtis
their 	right 	to 	be 	represented 	by 	their 	employee 	organization 	at
meetings with 	the 	District 	at 	which 	disciplinary measures 	were
considered 	and 	discussed. 	It 	has 	also 	been 	found 	that 	this
denial 	of 	representation 	by 	the 	District 	concurrently violated
subsection 3543.5(b).
To 	remedy 	the 	District's 	unlawful 	act 	in placing 	a 	letter
of 	reprimand 	in Davila's 	file, 	the District will 	be ordered to
remove 	that 	letter 	from 	her 	file.
19

Because 	the Association 	did 	not 	file 	exceptions 	to 	the
hearing officer's 	finding 	that 	the 	District 	did not 	violate 	the
Act 	by placing a letter 	of 	reprimand 	in Curtis' 	personnel 	file,
that 	issue 	is 	not 	before 	this Board. 	Thus, 	our 	finding of
unlawful District 	conduct 	with 	respect 	to Gary Curtis 	is
limited 	to 	the 	District's 	discriminatory denial 	to Curtis 	of
the 	benefits 	of 	its 	own 	procedural 	policy 	and 	to 	its 	denial 	of
his 	right 	to representation. 	To remedy 	that 	unlawful 	conduct
the District 	will 	be ordered 	to 	remove 	the 	letter 	of 	reprimand
issued 	to Curtis 	from 	his personnel 	file. 	We have 	considered
as 	a remedy an order 	that 	the District must 	offer Curtis 	an
opportunity to meet 	with 	the 	employer 	in 	the 	company of 	an
Association 	representative 	for 	the 	purpose 	of 	considering 	and
discussing 	the 	imposition of 	discipline 	upon Curtis. 	It 	is our
view, 	however, 	that because of the passage of 	time, 	the
opportunity which 	once 	existed 	to 	consider 	and 	discuss 	the
imposition of 	discipline 	in 	a meaningful way has 	been lost.
Therefore, 	we can 	conceive of 	no 	remedy 	short 	of 	removal of 	the
letter 	which 	will 	be 	certain 	to 	undo 	the 	harm which Curtis 	has
suffered 	as 	a result of 	the 	denial of 	his 	right 	to Association
representation. 	In this 	connection, 	we 	note 	that 	the 	similar
denial of Davila's 	right 	to representation 	is 	an 	additional 	and
independent 	ground 	for 	ordering 	the 	removal 	of 	the 	letter 	from
her 	file. 	These 	remedial measures 	are 	consistent with 	the
authority 	of 	this Board 	as 	established 	by 	subsection 	3541.5(c)
of 	EERA.
20

ORDER
Upon the 	foregoing 	findings of 	fact, 	conclusions 	of 	law 	and
the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government Code
subsection 	3541.5(c), 	it 	is 	hereby ORDERED that:
The Rio Hondo Community College District, 	its 	governing
board, 	superintendent 	and other 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Violating Government 	Code 	subsection 	3543.5(a) 	by
issuing 	letters 	of 	reprimand 	because 	of 	employees' 	exercise 	of
rights 	guaranteed 	by 	the 	EERA.
2. 	Violating Government 	Code 	subsection 	3543.5(a) 	by
denying 	to 	its 	employees 	the 	benefit 	of 	its 	established
policies 	in 	reprisal 	for 	the 	employee 	exercise of 	rights
guaranteed 	by 	the EERA.
3. 	Violating Government 	Code 	subsection 	3543.5(a) 	by
denying 	to 	its 	employees 	the 	right 	as 	guaranteed 	by 	the EERA to
be 	represented 	by 	their 	chosen 	employee 	organization.
4. 	Violating 	subsection 	3543.5(b) 	by denying 	to 	the
Rio Hondo Faculty Association 	its 	right 	as 	guaranteed 	by 	the
EERA to 	represent 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF 	THE EDUCATIONAL EMPLOYMENT 	RELATIONS
ACT:
1. 	Immediately withdraw 	from 	the 	personnel 	files 	of
Leonora Davila 	and Gary Curtis 	the 	respective 	letters 	of
reprimand 	issued 	to 	them 	by 	the 	District's 	superintendent 	on
October 	2, 	1979;
21

2. 	Within five 	(5) 	workdays 	of 	the 	date of 	service
of 	this 	decision, 	post 	copies of 	the Notice 	attached as 	an
appendix hereto 	at 	all 	work 	locations 	in 	the 	Rio Hondo
Community College District 	where 	notices 	to 	employees
customarily are 	placed. 	Such 	posting 	shall 	be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
should 	be 	taken 	to 	insure 	that 	these 	notices 	are 	not 	reduced 	in
size, 	altered, 	defaced or 	covered 	by any other materials; 	and,
3. 	Notify the Los Angeles 	regional 	director 	of 	the
Public Employment Relations Board 	in writing 	within 	30 	(thirty)
workdays 	from 	service 	of 	this 	decision of 	what 	steps 	the
District 	has 	taken 	to 	comply 	herewith.
This Order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the Rio Hondo Community College
District.
Members Jaeger 	and Jensen 	joined 	in 	this Decision.
22

APPENDIX
NOTICE 	TO 	ALL 	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-1079,
Rio Hondo Faculty Association, 	CTA/NEA v. 	Rio Hondo 	Community
College District, 	in which 	both 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	Rio Hondo Community
College 	District 	violated subsections 	3543.5(a) 	and 	(b) 	of 	the
Educational Employment Relations Act 	(EERA) 	by: 	placing 	a
letter 	of 	reprimand 	in 	the 	personnel 	file 	of Leonora Davila
because 	of 	her 	exercise 	of 	rights 	guaranteed 	by 	the EERA;
denying 	to Gary Curtis 	the 	benefit 	of 	an 	established District
policy 	in 	reprisal 	for 	his 	exercise 	of 	rights 	guaranteed 	by 	the
EERA; 	and, 	refusing 	to 	permit 	an 	agent 	of 	the Rio Hondo Faculty
Association 	to 	represent 	Leonora Davila 	and 	Gary 	Curtis 	at
their 	respective meetings 	with 	the District's 	superintendent 	at
which 	disciplinary measures 	were 	considered 	and 	discussed.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to post
this Notice, 	and 	we will 	abide 	by 	the 	following:
(A) 	WE WILL 	CEASE 	AND DESIST 	FROM:
(1) 	Interfering with, 	restraining or 	otherwise
coercing 	our 	employees 	because 	of 	their 	exercise 	of 	rights
guaranteed 	by 	the 	EERA.
(2) 	Denying 	to 	the 	Rio Hondo Faculty Association
rights 	guaranteed 	by 	the EERA.
(B) 	WE 	WILL 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE 	THE 	POLICIES 	OF 	THE EDUCATIONAL
EMPLOYMENT 	RELATIONS 	ACT:
(1) 	Immediately withdraw 	from 	the 	personnel 	files 	of
Leonora Davila 	and Gary Curtis 	those 	letters 	of 	reprimand
issued 	to 	those 	employees 	by 	the 	District's 	superintendent 	on
October 	2, 	1979.
RIO 	HONDO 	COMMUNITY COLLEGE 	DISTRICT
Dated: 	By:
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN POSTED FOR THIRTY
( 3 0 ) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF POSTING AND MUST NOT
BE 	REDUCED 	IN S I Z E , 	ALTERED, 	DEFACED, 	OR COVERED BY ANY OTHER
MATERIAL.