Lemoore Union High School District (PERB 0271E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
OPAL L. 	HERRIN,
Charging 	Party,
v.
LEMOORE 	UNION HIGH SCHOOL 	DISTRICT,
Respondent.
AVENAL-LEMOORE 	FEDERATION 	OF 	TEACHERS,
LOCAL 3219,
Charging 	Party,
v.
LEMOORE 	UNION HIGH SCHOOL 	DISTRICT,
Respondent.
Case 	No. 	S-CE-390
PERB Decision No. 	271
December 	28, 	1982
Case No. 	S-CE-391
Appearances; 	Janet K. 	King, 	Attorney for Opal L. 	Herrin and
Avenal-Lemoore Federation of Teachers, 	Local 	3219;
Robert A. Galgani, Attorney 	(Breon, Galgani, Godino &
O'Donnell) 	for 	the 	Lemoore Union High School District.
Before Gluck, Chairperson; 	Jaeger and Morgenstern, Members.
DECISION
GLUCK, 	Chairperson: 	Opal L. 	Herrin and 	the Avenal-Lemoore
Federation of Teachers, 	Local 	3219 	(Association) 	except 	to a
hearing 	officer's 	proposed 	remedy 	in 	a 	decision 	which 	found
that 	the 	Lemoore Union High School District 	(District) 	violated
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subsection 	3543.5(a) 	of 	the Educational Employment Relations
Act 	(EERA).1
The 	charging 	parties 	had 	each 	filed 	charges 	alleging 	that
Herrin 	had 	been 	denied 	numerous 	promotions 	over 	the 	past
several years 	because 	she 	had 	been 	a union activist. 	The
charges 	were 	consolidated, 	and 	the 	hearing 	officer 	found 	that
the District 	violated 	the Act 	by not 	giving 	her 	proper
consideration 	for 	the 	appointment 	to vice-principal. 	He
declined 	to 	find 	that 	she 	would 	have 	received 	the 	position 	but
for 	her 	union activity. 	He 	dismissed 	all other 	allegations.
The 	hearing 	officer 	ordered 	that 	the 	District 	reopen 	the
selection 	process 	for 	vice-principal 	and 	give 	full 	and 	fair
consideration 	to Herrin 	and 	all 	other 	candidates 	for 	the
position, 	without 	regard 	to 	their 	organizational 	activities.
Herrin 	and 	the Association claim 	that 	this 	remedy 	is 	not
adequate 	because 	it 	will 	not 	restore 	the 	status 	quo or
1 The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	references 	will 	be 	to 	the Government Code 	unless
otherwise 	indicated.
Subsection 3543.5(a) 	provides:
It 	shall 	be 	unlawful 	for 	a public 	school
employee 	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.
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effectuate 	the 	purposes 	of EERA. 	They argue 	that Herrin 	will
not 	be 	protected 	against 	continued 	discrimination 	since 	the
District 	is 	not 	precluded 	from 	using 	the 	same 	selection 	panel
which rejected 	her 	nor 	from 	giving 	the 	incumbent 	credit 	for 	the
experience 	he 	gained 	as 	vice-principal.
The 	District 	filed 	no 	exceptions.
The 	Board 	finds 	the 	attached 	hearing 	officer's 	findings 	of
fact 	free 	from prejudicial 	error 	and 	adopts 	them 	as 	its 	own.
DISCUSSION
In providing 	an 	effective 	remedy, 	two 	uncontested 	findings
are 	germane: 	1) 	the District 	did 	not 	unlawfully deny Herrin 	an
appointment; 	and 	2) 	the District 	did 	unlawfully deny her 	the
opportunity 	to compete 	for 	such 	appointment on 	a 	fair 	and 	equal
basis. 	Because 	there 	has 	been 	no 	finding of 	an 	unlawful
deprivation of 	the 	job 	itself, 	as opposed 	to 	the 	loss of 	the
opportunity to seek 	it, 	a 	remedy of 	back pay and placement 	in a
comparable 	job is 	inappropriate. 	There 	is no evidence 	that 	had
she 	been 	given 	a 	fair 	opportunity, 	she would have 	been
appointed.
On the other 	hand, 	the 	unlawful 	denial 	of 	the opportunity
to 	compete 	for 	the 	job demands 	that 	a 	nondiscriminatory
opportunity now 	be made 	available. 	The 	hearing 	officer's
remedy 	seeks 	to 	recognize 	these distinctions, 	but 	fails 	to
accommodate 	specific 	areas 	of 	legitimate 	concern. 	We 	therefore
modify 	the 	remedy 	to 	require: 	first, 	any new 	competition must,
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to 	the 	extent 	possible, 	reconstruct 	the 	conditions 	that were
present 	when 	the 	interviews 	for 	the 	position of 	vice-principal
were 	originally 	held. 	This 	includes 	the 	requirement 	that 	the
new 	interviews 	must 	be 	structured 	in 	form 	and 	content 	to
eliminate 	any 	advantage 	to 	the 	incumbent 	by 	virtue 	of 	his
period of 	incumbency. 	Second, 	the 	interviewing panel must not
be 	tainted 	by 	the 	unlawful 	animus 	which 	the 	hearing 	officer
found 	to permeate 	the original 	selection process. 	Third, 	the
selection of 	a 	vice-principal 	for 	the 	Lemoore High 	School
should 	be 	scheduled 	to permit 	appointment 	effective 	at 	the
beginning of 	the next 	school 	year.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	it 	is 	hereby ORDERED 	that
the 	Lemoore 	Union High 	School District 	and 	it's 	representatives
shall:
A. 	CEASE AND DESIST FROM:
Discriminating 	against Opal 	L. 	Herrin when 	considering 	her
for 	promotion or 	other 	appointments 	because 	of 	the exercise 	of
her 	rights 	guaranteed 	by 	the 	Educational 	Employment 	Relations
Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF THE ACT:
1. 	Reopen the 	selection process 	for 	the
vice-principal 	position 	at 	Lemoore High 	School 	and 	give
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Opal L. 	Herrin and other 	candidates 	a 	full 	and 	fair
opportunity to be 	appointed prior 	to 	the 	start of 	the 	next
school 	year 	by 	not 	considering 	protected 	organizational
activities; 	structuring 	interviews 	to eliminate any
advantage 	to 	the 	incumbent 	by 	virtue 	of 	his 	period 	of
incumbency; 	and 	assuring 	that 	interview panels 	are 	not
tainted 	by 	the 	unlawful 	animus 	that was 	found 	to exist 	in
the 	original 	selection process.
2. 	Within 	seven 	(7) 	workdays 	following 	the date of
service of 	this Decision, 	post 	at 	all work 	locations 	where
notices 	to 	employees customarily 	are placed, 	copies 	of 	the
Notice 	attached 	as 	an 	appendix 	hereto 	signed 	by an
authorized 	agent 	of 	the 	employer. 	Such 	posting 	shall 	be
maintained 	for 	a period 	of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that
such notices 	are not 	reduced 	in size, 	defaced, 	altered or
covered 	by 	any other 	material.
3. 	Within forty-five 	(45) 	workdays 	following service
of 	this Decision, 	notify 	the 	regional director 	of 	the
Public 	Employment Relations 	Board 	in writing 	of 	what 	steps
the 	employer 	has 	taken 	to comply with 	the 	terms 	of 	this
Decision. 	Continue 	to report 	in writing 	to the 	regional
director 	periodically 	thereafter 	as 	directed. 	All 	reports
to 	the 	regional 	director 	shall 	be 	served 	concurrently on
charging 	parties 	herein.
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The 	Board 	further ORDERS 	that 	all other 	allegations 	in 	the
charges 	are 	hereby DISMISSED.
Members Jaeger 	and Morgenstern 	joined 	in 	this Decision.
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APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the State 	of 	California
After 	a hearing 	in Unfair 	Practice Case Nos. 	S-CE-390 	and
S-CE-391, 	Opal L. 	Herrin v. 	Lemoore Union High School District
and 	the Avenal-Lemoore Federation of Teachers, 	Local 	3219 	v.
Lemoore Union High School 	District, 	in 	which 	all 	parties 	had
the 	right 	to participate, 	it has 	been found 	that 	the Lemoore
Union High 	School 	District 	violated 	the 	Educational 	Employment
Relations Act, 	Government Code subsection 3543.5(a) 	by
discriminating 	against Opal L. 	Herrin 	because 	of 	her
participation 	in 	union 	activities 	by 	not 	properly considering
her 	for 	appointment 	to vice-principal.
As 	a 	result of 	this conduct, 	we 	have 	been ordered 	to post
this Notice, 	and we will 	abide by 	the 	following:
We 	will:
A. 	CEASE AND DESIST FROM:
Discriminating 	against Opal L. 	Herrin when 	considering 	her
for 	promotion or 	other 	appointments 	because 	of 	the 	exercise 	of
rights 	guaranteed 	by the Educational Employment Relations Act 	.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
Reopen 	the 	selection 	process 	for 	the 	vice-principal
position at Lemoore High School 	and 	give Opal L. 	Herrin and
other 	candidates 	a 	full 	and 	fair 	opportunity 	to 	be 	appointed
prior 	to 	the 	start 	of 	the 	next 	school year 	by not 	considering
the 	protected 	organizational activities; by 	structuring
interviews 	to eliminate 	any 	advantage 	of 	the 	incumbent 	by
virtue 	of 	his 	period 	of 	incumbency; 	and 	using 	interview 	panels
not 	tainted 	by 	the 	unlawful 	animus 	that 	was 	found 	to exist 	in
the original 	selection 	process.
LEMOORE 	UNION 	HIGH 	SCHOOL 	DISTRICT
Dated: 	By:
Authorized 	Representative
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS FROM THE 	DATE OF POSTING AND MUST NOT
BE REDUCED IN 	SIZE, 	ALTERED, 	DEFACED OR COVERED BY ANY OTHER
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
OPAL L. 	HERRIN,
Charging 	Party,
v.
LEMOORE 	UNION HIGH SCHOOL 	DISTRICT,
Respondent.
AVENAL-LEMOORE 	FEDERATION 	OF TEACHERS,
LOCAL 	3219,
Charging 	Party,
v.
LEMOORE 	UNION HIGH 	SCHOOL 	DISTRICT,
Respondent.
Case 	No. 	S-CE-390
Case 	No. 	S-CE-391
PROPOSED 	DECISION
(10/26/81)
Appearances: 	Janet King, 	Attorney 	for 	Opal L. 	Herrin and
Avenal-Lemoore Federation of Teachers, 	Local 3219;
Robert A. Galgani, Attorney, Breon, Galgani & Godino, 	for the
Lemoore 	Union High 	School District.
Before Gary M. 	Gallery, 	Hearing Officer.
PROCEDURAL 	HISTORY
In 	this case, 	a high 	school 	teacher 	contends 	she was 	denied
promotional opportunities 	because 	of 	her 	union 	activities.
On December 	31, 	1980, 	Opal L. 	Herrin 	(hereafter 	Herrin) 	and
the Avenal-Lemoore Federation of Teachers, 	Local 	3219,
(hereafter 	Federation) 	each 	filed 	an 	unfair 	practice 	charge
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against 	the 	Lemoore 	Union High 	School 	District. 	Both 	charges
alleged violations of 	Government Code 	sections 	3543, 	3543.5(a)
and 	3543.6 (b) 	by denying Herrin job promotions 	because 	she 	is a
member 	of 	the 	union executive 	board 	and 	had 	assisted 	in
negotiations with 	the District. 	On January 21, 	1981, 	a
"correction" 	was 	filed on 	both 	charges 	deleting 	reference 	to
Section 	3543.6 (b). 	Timely answers 	and motions 	to dismiss were
filed 	by 	the 	District and 	the 	two unfair 	practice 	charges 	were
consolidated. 	An 	informal conference 	was 	held, 	without
success, 	and 	the 	formal hearing was held on April 	6, 	7, 	8 and
9, 	1981 at Lemoore, California. 	Submission of brief was
completed 	and 	the matter 	submitted on July 	14, 	1981.
FINDINGS 	OF 	FACT
The 	Lemoore 	Union 	High 	School 	District 	(hereafter 	District)
is 	an employer, 	and 	the 	Federation 	an 	exclusive 	representative
within 	the 	meaning of 	the 	Educational 	Employment 	Relations 	Act
(hereafter 	EERA).1
The 	Federation 	became 	the 	exclusive 	representative 	as 	a
result 	of 	an election held 	in November 	of 	1976. 	Initial
negotiations 	in 	early 	1977 	were 	protracted 	and 	without
success. 	The Federation requested, 	on June 3, 	1977, 	that PERB
establish 	that 	impasse exist. 	Thereafter, 	on August 18, 	1977,
1Government 	Code 	section 	3540 	et. 	seq. 	All 	references
are 	to 	the Government Code, 	unless otherwise 	stated.
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following 	extensive mediation, 	PERB determined 	that 	factfinding
was 	appropriate.2 Around 	this 	time 	some 	teachers 	engaged 	in
picketing 	at 	a 	board 	of 	trustees 	meeting. 	Herrin 	participated
in 	that 	activity.
In late August, 	1977, 	the 	teachers 	had 	a special meeting 	to
discuss, 	with 	invited members of 	the public, 	the 	status of
their 	negotiating 	efforts 	with 	the 	District. 	Herrin 	spoke 	to
the 	group. 	Among 	her 	comments, 	she made 	the 	statement 	"that we
were 	working 	with 	five 	nice 	individuals 	as 	board 	members 	but
collectively 	they were 	not 	hearing 	us." 	She went on 	to 	say
that 	she 	"made 	one 	statement 	that 	was 	never 	quite 	finished 	and
came 	out 	a 	little 	bit differently 	than 	I 	had planned 	for 	it 	to,
but as 	it 	stated 	it's 	true 	that 	I would 	leave 	tomorrow 	if 	I
could, 	and did 	not 	finish 	explaining 	the 	'if 	I could'."
On August 25, 	1977, 	an article 	in the Lemoore Advance, 	a
local 	newspaper 	quoted 	extensively 	from 	Herrins' 	remarks 	at 	the
special meeting.
A paid advertisement 	in 	the Hanford Sentinel, 	a 	local
newspaper, 	dated September 	6, 	1977, 	by the 	"We 	for Education
2These 	facts do not 	appear 	in 	the 	record. 	However, 	an
administrative 	agency may 	take 	official 	notice 	of 	its 	records.
Anderson v. 	Board of Dental Examiners 	(1915) 	27 Cal.App.336,
338 	[149 P. 	1006, 	1007] 	California Administrative Agency
Practice 	(Cont. 	Ed Bar 	1970) 	Hearing Procedures, 	section 3.34,
page 	167. 	These 	facts 	appear 	in 	the Sacramento Regional Office
file.
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Through Board Action Committee," 	took 	exception 	to 	the 	teachers
position 	in 	the 	negotiations. 	Included 	with 	the 	ad 	was 	the
following:
In 	the August 	25th 	"Lemoore Advance" one
very 	vocal 	teacher 	made 	it 	quite clear 	she
was 	being 	mistreated 	and 	would 	quit 	tomorrow
"if 	I could." 	Let's explore 	this 	teacher.
First of all what does 	"if 	I could" mean?
It would 	seem obvious 	that 	she 	cannot 	find 	a
job better 	than 	the 	one 	she 	now has! 	This
same 	person only 	a 	few years 	ago 	asked 	the
Board 	for 	leave 	of absence 	to 	run 	for
political office. 	This was 	granted 	and 	her
aspirations 	rejected 	by 	the 	public vote.
She 	then went 	back 	to 	the 	now 	"unfair" 	Board
and 	retained 	her 	employment. 	Teardrop,
teardrop.
Herrin 	testified, 	without refutation, 	that Gary and
Bill Miguel, 	sons of Board member Ed Miguel, 	were members of
the 	committee 	and 	had 	signed 	one 	of 	the 	ads.
A public meeting of 	the Board, 	on September 	8, 	197 7, 	was
held, 	ostensibly, 	to give 	the public an opportunity 	to ask
questions of 	the Board on 	bargaining 	positions. 	Stan Hawk,
then Board president, 	announced 	at 	the 	beginning of 	the meeting
that 	certain 	ground 	rules would 	govern 	the 	meeting. 	The Board
president 	and 	the 	president 	of 	the 	Federation were 	each 	given
15 	minutes 	to present 	their 	views on 	the 	controversy.
Thereafter, 	speakers were allowed 	three minutes. 	No teachers
or 	their 	spouses would 	be 	allowed 	to 	speak 	to 	the 	Board.
Persons 	desiring 	to 	speak 	would give 	their 	names 	to Neil
Nordstrom, 	then District 	superintendent, 	who would draw names
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from a 	box. 	Hawk 	also announced 	that 	the 	Board would 	not
answer 	any 	questions 	that 	evening 	but would put out 	an
information 	sheet 	later 	in response 	to 	questions 	that 	were
asked. 	The meeting 	became chaotic. 	Speakers would 	speak
without 	obtaining 	recognition 	from 	the chairman. 	Others, 	given
recognition, 	would be 	shouted 	down 	by members 	of 	the 	crowd.
The 	names of 	two of 	his 	sons 	were 	drawn and Miguel 	testified 	of
the 	great 	hurt 	he 	felt when 	one 	was 	booed 	down 	and 	could 	not
finish 	his 	speech.3 Hawk 	then 	declared 	the 	public meeting
terminated 	and 	the 	Board 	went 	into 	executive 	session 	for
further 	business 	that 	evening.
Miguel 	testified 	that 	as 	he 	entered 	the 	meeting 	room 	before
starting 	time, 	as was his 	usual practice, 	he saw several
teachers, 	including Herrin, 	in a group 	just outside 	the meeting
room. 	He 	further 	testified 	that 	while 	he 	did 	not 	see 	her
shouting 	during 	the meeting, 	he 	knew 	she 	was part 	of 	the 	group
that was doing 	it.
In addition 	to 	the description of chaos 	by 	the 	various
witnesses, 	newspaper 	articles 	termed 	the meeting 	"tragic" 	and
"ending 	in 	shambles." 	Later, 	the Hanford Sentinel carried an
editorial 	criticizing 	the Board 	for 	the 	conduct of 	the 	hearing.
3He 	went home, 	Miguel said, 	and with his wife, 	cried over
the 	event.
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At an election of 	trustees 	held 	in November 	of 	1979,
Gene Martin 	and 	Donald Delaney, 	were 	elected 	as 	new members.
The 	resignation 	of 	a 	third 	incumbent member 	led 	to 	the 	board
appointment 	of Vincent 	Pittarelli. 	The 	two 	elected 	trustees
assumed 	their 	office on December 	13, 	1979. 	Pittarelli 	began
one 	week 	earlier. 	All 	three 	testified 	that 	they 	ran 	for 	the
school 	board 	because 	of 	need 	for 	new blood or 	because 	they
believed 	there 	was 	a 	lack 	of 	communication 	between 	the
administration 	and 	staff.
The Board, 	during December, 	decided 	by a 3 	to 2 vote with
all 	the 	new members 	in 	the majority, 	not 	to renew Nordstroms'
contract as 	superintendent. 	He 	resigned on December 	13, 	1979.
For 	the next 	few meetings of 	the Board, 	Allen Gilkey, 	then
assistant 	superintendent, 	became 	acting 	superintendent 	until
July 1, 	1980, 	when he was 	appointed permanent superintendent.
Gilkey 	served 	as 	assistant 	superintendent 	from 	1970 	until
he 	was 	appointed 	acting 	superintendent.
Against 	this 	background, 	Opal Herrin 	sought 	appointment 	to
various 	administrative positions.
Herrins 	Qualifications
Herrin has 	been 	a 	business 	education 	teacher 	in 	the
District 	for 	over 	27 years. 	She holds 	a 	lifetime General
Secondary Credential, 	a General Elementary Credential, 	and an
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Administrative 	Credential.4 she 	taught 	for 	eight 	years 	in
Oklahoma 	prior 	to 	her 	employment 	at 	the 	Lemoore 	Union High
School District.
Herrin 	has 	held almost 	every office 	in 	the 	CTA, 	including
the 	presidency 	and 	has 	served 	as 	special 	services 	chairman 	for
both 	CTA 	and AFT 	and 	has 	taken 	care 	of 	the 	teacher 	insurance
program.
Herrin 	testified 	that 	as 	special 	services 	officer, 	she was
in charge of 	all 	the 	insurance programs. 	She made
recommendations 	to 	teachers 	about 	their 	health 	insurance,
dental programs, 	income protection programs, 	or whatever
programs were 	in force. 	She 	sells 	tax-sheltered annuities, 	and
other 	insurance 	programs 	to 	both 	the 	certificated 	and
classified 	employees. 	She 	holds 	a 	real estate 	license 	and
sells 	real estate.
With 	regard 	to 	curriculum development, 	Herrin 	testified
that 	she 	had 	spent 	27 	years 	with 	the 	business 	education
curriculum within 	the 	department, 	and 	at 	times 	had 	been on 	the
overall 	curriculum committee, 	including 	departmental
development 	of 	responses 	to changes 	in 	the 	vocational
educational 	program. 	Herrin 	testified 	that 	she 	had 	been 	asked
4Herrin's other 	qualifications 	are 	set 	forth 	in her
letter 	to the District, 	dated August 	12, 	1980 	set 	forth 	in
footnote 11, 	infra.
77

to chair 	the 	business 	department 	"at least 	ten 	times" 	but had
declined.
Herrin's 	administrative 	experience 	is 	limited 	to work 	she
did 	in 	the 	school 	where 	she 	was 	employed 	in 	Oklahoma prior 	to
coming 	to Lemoore. 	For 	a year 	and 	a half, 	she worked half 	a
day 	in 	the 	superintendent's office. 	She 	took care of
transportation, 	insofar 	as 	arranging 	the 	monthly 	servicing 	of
school buses. 	She did 	the entire payroll. 	She worked 	together
with 	the 	principals 	of 	the 	two 	schools 	and 	they would 	select
books 	and 	set curriculum 	for 	the 	first 	six grades. 	She ordered
supplies 	for 	the 	concession 	stands 	for 	athletic events 	and
supervised 	personnel 	for 	the gates. 	The 	school had 	around 	350
students. 	It was, 	she said, 	about the 	same size as Lemoore
High 	School 	when 	she 	first came 	to 	the District.
Selection 	of 	Director 	of Guidance 	and 	Counseling 	- 	1979
A memo 	to 	the 	employees 	of 	the 	Lemoore 	High 	School 	District
was 	issued 	by Nordstrom on May 	25, 	1979 	relating 	to vacancies
within 	the District. 	Among others, 	the position 	"Director 	of
Guidance" 	at 	the 	Lemoore High School was 	listed, 	followed 	by
the 	designation 	"Certificated 	Management 	Position."
Herrin 	applied 	for 	the 	position 	and 	was 	interviewed 	by
Nordstrom, 	Gilkey 	and 	Ralph 	Peterson.5 she 	was 	questioned,
5Peterson 	has 	been principal at 	Lemoore 	High 	School 	since
1962.
8

she 	said, 	about 	her 	union 	activities.6 Nordstrom asked 	her,
she 	said, 	"Opal, 	do you 	think after 	belonging 	to 	the union, 	do
you 	think you 	could come 	to our 	side 	in 	strict confidence, 	and
that we could confide 	in you?"
She 	said 	she 	"told him 	that 	I 	was 	very 	trustworthy 	and 	that
it 	was 	— 	negotiations 	should 	never 	be 	anything 	that 	you 	take
personally, 	that 	you 	are 	negotiating 	for 	your 	organization or
your 	side of 	the 	team, 	and 	I 	laughed 	and 	said 	I could 	even
negotiate 	for 	the 	District 	if 	they wanted me 	to."
She 	said 	the 	salary offered 	was 	$19,500, 	and 	that 	they 	told
her 	she 	would 	have 	to 	take 	a cut 	from 	her 	then 	salary of 	around
$20,080.
Herrin alleged 	that 	David Tonini, 	who was appointed
director 	of guidance, 	earned $20,865 	in 	the year 	1979-80 	as
director 	of 	guidance.
Gilkey 	testified 	and 	was 	corroborated 	with 	documentary
evidence, 	that 	Tonini 	was hired 	in June of 	1979 	at a 	salary of
$19,500. 	Later, 	as Gilkey 	testified, 	when 	salary agreements
had 	been 	reached with 	all 	other 	employees, 	administrators
salaries 	were 	increased 	accordingly. 	Tonini 	was 	then 	given 	a
salary 	increase on October 	11, 	1979/ 	to $20,865, 	retroactive 	to
the 	first 	of 	the 	school year.
6In 	negotiations 	for 	the 	first 	contract 	between 	the
Federation 	and 	the District, 	Herrin was 	a member 	of 	the
negotiating 	team. 	Although, 	she 	said, 	she 	"mostly 	sat at 	the
back 	and 	took 	shorthand," 	she 	did 	handle 	the 	cost 	negotiations
on 	that 	contract.
9

Herrin 	testified 	that 	at 	the 	time of 	the 	application, 	she
held, 	while Tonini did not, 	a valid administrative credential.
However, 	Tonini 	possessed 	an Administrative 	Service 	Credential
which was 	valid 	for 	preschool, 	grades 	1-12 	and 	adult 	classes
for 	the 	period 	10-31-76 	through 	11-1-81.
Tonini 	had 	a degree 	in psychology, 	and 	held counseling 	and
administrative 	credentials. 	He 	had 	also 	served 	as 	summer
school vice-principal. 	Opal's 	background 	is 	discussed
elsewhere, 	but 	she 	testified 	that 	she 	had 	had 	about 	ten
psychology 	related 	courses 	in college, 	although 	she 	admitted
that 	they 	were 	the 	type 	required 	for 	teaching 	credentials
generally and, 	but 	for one, 	all were 	taken 	in Oklahoma. 	She
also 	admitted 	that 	she 	had 	never 	held 	a 	certificated 	counseling
position.
Teaching 	and 	testing 	abilities 	were 	important 	for 	the
position. 	In addition 	to 	supervising counselors, 	the position
also 	involved 	placement 	of 	incoming 	students 	from 	the 	feeder
schools.7 During 	the 	interview 	for 	the 	director 	of 	guidance
position, 	Herrin 	was 	presented with 	a 	form used 	by 	the 	District
in 	each 	students' 	file 	indicating 	the 	results of 	sundry 	tests.
Some 	degree 	of 	predictability 	for 	placement purposes 	is
discernible from 	the 	scoring 	on 	the 	tests. 	At 	the 	hearing,
Herrin was 	vague 	on 	her 	recall of 	the 	answers 	she gave 	to
7The 	feeder 	schools 	were 	those 	schools 	in 	the 	area 	from
which 	Lemoore 	drew 	its 	freshman 	students.
10

questions 	by 	the 	interview panel 	about 	the 	form. 	She did 	not,
at 	the 	hearing, 	initially recognize 	the 	form, 	and could not
tell 	which 	grade 	level 	the 	sample 	student 	represented. 	Gilkey
testified 	credibly 	that, 	at 	the 	interview, 	Herrin had
difficulty understanding 	the 	form and 	she 	said, 	"Well, 	she
could pick 	this 	up 	in 	a matter 	of 	time." 	The decision of 	the
panel 	was 	unanimous 	in 	favor 	of 	recommending Tonini 	for
appointment 	by 	the Board 	of 	Trustees.
Avenal Acting Principal, 	Lemoore Vice-Principal
Until July 	1, 	1980, 	the 	District 	consisted 	of 	two high
schools, 	one 	in Lemoore, 	and the second 	in Avenal, 	California.
As 	a 	result 	of 	recommendations 	of 	the 	county committee 	on
school district 	organization 	in 	1977, 	a 	unification 	election 	on
March 	6, 	1979 	resulted 	in 	the 	approval of a new proposed
unified 	district 	consisting 	of 	the 	then 	existing 	Reef-Sunset
Union School District 	and 	the Avenal High School, 	effective 	for
all purposes, July 1, 	1980.
Some months prior 	to 	the 	effective date, 	but after 	the
election 	for 	unification, 	the 	then principal 	at Avenal
resigned. 	Because 	of 	the 	pending 	transfer 	of Avenal High
School 	to 	the 	newly 	formed district, 	it was 	determined 	to have
the Lemoore Board 	of Trustees 	assign, 	on a 	temporary basis, 	an
employee 	to 	serve 	as 	acting principal 	at Avenal 	until a
permanent principal, 	selected 	by 	the Avenal Board 	of Trustees,
could 	be 	employed.
11

The 	Lemoore 	board 	approved Bill Cottini, 	recommended 	by
Nordstrom, 	as 	interim principal at Avenal. 	Cottini was, 	at the
time, 	vice-principal at 	Lemoore High School. 	At 	the 	same 	time
that 	Cottini was 	appointed 	to 	the Avenal position,
Don Warkentin 	was 	appointed 	as 	acting 	vice-principal 	to 	take
Cottini's place 	at Lemoore High 	School. 	Cottini 	served
approximately 8 weeks 	as principal of 	Avenal. 	Cottini 	returned
to Lemoore High as vice principal 	to replace Black who, 	as 	is
later 	discussed, 	was 	appointed 	to 	the 	interim Director 	of
Federal Projects 	position.
Gilkey 	testified 	that 	Nordstrom 	had 	made 	the 	appointments
and 	that 	the 	board 	had 	approved 	them. 	To 	his 	knowledge,
neither 	had 	been 	posted 	by 	the 	District. 	Herrin 	and 	one 	Jim
Bennett 	complained 	to 	then 	superintendent 	Nordstrom 	about 	the
absence 	of posting.
Warkentin 	had 	been 	a Science 	teacher 	and 	coach 	prior 	to 	his
appointment 	as 	acting 	vice-principal 	at 	Lemoore. 	Gilkey could
not 	explain 	how 	it 	was 	that Warkentin was 	appointed 	to 	the
position 	from his 	teaching 	position.
Director 	of 	Projects 	and 	Special Education
Upon 	learning of 	Gilkey's 	appointment 	as 	acting
superintendent, 	Herrin 	informed 	him of her 	interest 	in his 	old
job.
12

The 	District posted 	the 	position 	on February 	7, 	1980.8
Applicants 	included Herrin, 	Dave Tonini, 	Bill Cottini,
Don Warkentin, 	Robby Bryan 	and Bill 	Black. 	Gilkey 	testified
that 	he 	used 	a 	series of 	about 	20 	questions 	relating 	to 	the
responsibilities 	of 	the 	director 	of 	federal projects 	and
special 	education.
Gilkey 	testified 	that 	the 	District 	participated 	in 	and
received 	funds 	for 	under 	the 	Elementary, 	Secondary Education
Act, 	(Title 1) 	Section 4(b) 	of 	the Act for Library Resources,
the Vocation Education Act, 	Indian Education Act, 	Migrant
Education, 	Bilinqual Education 	all 	of which 	require yearly
updates 	and 	maintaining 	the 	budget within 	federal 	guidelines.
Because 	of 	recent 	legislation, 	substantial change 	and
development 	had 	occurred 	in 	the 	area 	of 	providing 	special
services 	for 	handicapped 	students. 	A master 	plan 	is 	required
as 	well 	as plans 	for 	individual 	students. 	Special education,
said Gilkey, 	would 	take 	up most 	of 	the 	employees' 	time.
During 	her 	interview 	for 	the 	job with 	Gilkey, 	there was 	a
discussion 	of 	her 	qualifications. 	They 	discussed 	her
understanding 	of 	budgets 	and 	budgetary controls, 	and 	vocational
8The 	position 	was 	styled 	as 	"Interim" 	and 	called 	the
"Director 	of 	Projects 	and 	Special 	Education." 	Qualifications
were: 	Administrative 	Credential, 	5-year 	teaching 	experience,
Administrative 	experience. 	The 	primary 	function was 	described
as 	". 	. 	. 	responsibility for 	submitting and coordinating all
programs 	funded 	from special 	sources, 	federal and 	state, 	and
perform other 	duties 	assigned 	by 	the 	superintendent."
13

education programs. 	She 	had 	no 	recall 	of 	discussion 	of 	ESEA
Title 1 or EIA. 	She 	has, 	she 	said, 	never 	worked with 	those
programs or 	in special education. 	There was not, 	she 	said, 	an
"in depth" 	discussion of 	those 	subjects.
While 	she 	professed 	to 	have 	attended 	IEP conferences, 	she
did 	not 	know 	what 	it 	stood 	for. 	She 	has 	not 	ever 	developed 	an
individual 	education plan 	required 	for 	students 	in 	special
education. 	She 	has 	never 	developed 	an 	application 	for 	a
federal grant, 	nor 	has 	she 	ever 	done 	any work 	in administering
a 	federal grant. 	Finally, 	she 	has 	had 	no experience 	in
budgetary 	control 	of 	federal 	grants.
She 	was 	not 	aware 	that Warkentin 	and 	Tonini 	had 	also
applied 	for 	the 	position.
Herrin 	testified 	that 	Black 	was 	interviewed 	on Wednesday
before 	a 	Thursday 	Board 	meeting.9 She 	was 	interviewed 	the
following 	Friday or 	Monday. 	The 	next 	Friday 	(of 	the 	week 	the
board 	would 	not 	have 	met) 	she 	learned 	that Black 	had 	been
appointed 	to 	the 	interim Director 	of 	Federal 	Projects. 	She 	did
not 	know, 	however, 	when Black was 	appointed 	by 	the Board.
Black was 	appointed, 	said Gilkey, 	because of 	his
administrative 	experience 	and 	because 	he, 	Gilkey, 	had 	worked
with 	him on a 	criminal 	justice 	grant 	application. 	The 	Board
9The 	Board 	meets 	on 	the 	first 	and 	third 	Thursday 	of 	each
month.
14

members 	variously 	testified 	that 	they 	selected 	Black 	because
they 	relied 	upon Gilkey, 	who had 	done 	the 	job before, 	and 	would
therefore, 	know who would best fill 	the position. 	Too, 	they
were 	giving 	Gilkey 	some 	latitude 	at 	the 	time 	because 	of 	their
review of 	the 	organizational 	structure 	of 	the District.
Vice-Principal 	- 	Lemoore 	High 	School
Herrin 	had 	a 	meeting 	with 	Peterson 	sometime 	prior 	to May 	1,
1980. 	She 	said 	the meeting 	was 	during 	her 	evaluation 	and
Peterson 	said, 	"Opal, 	we're going 	to have - 	it looks 	like we're
going 	to 	have 	a vice-principal vacancy 	next year, 	and 	I'm going
to 	recommend 	you 	for 	that 	position." 	She 	said 	he 	further
stated, 	"you are 	tough, 	you 	are a good disciplinarian, 	and 	I
think 	you would 	be 	good 	in 	that position."
Peterson, 	on 	the 	other 	hand, 	testified 	that 	he could not
recall 	the 	setting of 	the 	conversation, 	but 	he did 	recall 	that
she 	told 	him 	that 	she 	didn't 	think 	she 	was 	going 	to apply 	for
the 	job. 	He 	said he 	told her 	"I 	think you ought 	to give 	it a
shot, 	Opal." 	He 	denies 	having 	said 	that he would 	recommend
her, 	but 	did 	say 	that 	he 	felt 	she 	was 	a 	strong 	candidate 	from
inside 	the 	district. 	He 	said 	he wouldn't 	have 	told her 	that 	he
would 	"recommend" 	her 	prior 	to having 	seen other 	candidates.
May 	1, 	1980 	Board Meeting
Underlying 	Herrin's 	contention 	that 	she 	was 	not 	promoted
because 	of 	her 	union 	activity are 	statements 	made 	on
15

May 	1, 	1980 	by Ed Miguel, 	then president of 	the Board at a
Board 	of 	Trustees 	meeting.
Herrin had 	conferred 	with 	Jim 	Ingliss, 	Federation
president, 	and 	suspected 	that 	the 	District might 	have 	denied
her 	promotion 	because 	she 	was 	a woman. 	She 	had 	filed 	a charge
with 	the 	Department 	of 	Fair 	Employment 	and 	the 	Equal 	Employment
Occupational Commission 	and 	had 	obtained 	extensions 	of 	time 	to
formally 	commence 	the 	charge.
She 	requested 	to meet 	with 	the 	Board 	in 	executive 	session.
The Board met with her, 	during a 	regular 	meeting on May 	1. 	In
attendance 	at 	the 	executive 	session 	were 	the 	five Board
members, 	Gilkey and Peterson. 	Ingliss 	attended with 	Herrin.
All 	nine 	testified 	as 	to what 	occurred 	at 	the 	meeting 	as 	well
as 	what Miguel 	stated. 	There 	is 	considerable variation 	in 	the
testimony 	of 	the 	witnesses 	as 	to what 	transpired 	and 	what 	was
said 	by Miguel.
After 	introducing 	Ingliss 	and 	expressing 	thanks 	for 	the
Board's 	time, 	Herrin 	addressed 	several questions 	to 	the Board
about 	the 	appointment 	of 	the 	projects 	director 	and 	the 	director
of 	counseling 	and guidance. 	Her 	tone 	and 	approach 	was
negative. 	She 	did 	express 	satisfaction 	in Gilkey's 	appointment
as 	superintendent. 	She made 	reference 	to 	the 	fact 	that 	she 	had
a document 	in her 	purse 	that 	had 	to 	be 	filed and 	that 	she
wanted 	to 	talk 	to 	the Board 	first before 	filing 	it. 	At a point
in her 	presentation, 	about when 	there was 	considerable
16

differences 	of 	testimony, 	Miguel interrupted and 	said 	that 	he
had 	something 	to get off 	of 	his 	chest.
Herrin 	testified 	that Miguel 	said 	that 	as 	long 	as 	he 	was 	on
the Board, 	she would 	never 	be 	an administrator, 	and 	that 	it was
because 	of 	the part 	she played 	in negotiations. 	Miguel denied
making 	such 	a 	statement, 	but 	admitted 	telling 	her 	that 	"he
didn't 	appreciate 	her 	activities," 	that 	she'd 	been
"anti-administration" 	in many cases 	he 	felt 	"were embarrassing
to 	the 	administration 	and 	to 	the 	school 	itself." 	He was
thinking, 	he 	said, 	of a picketing 	incident, 	and public meetings
where 	teachers 	would 	"interfere 	and 	interrupt." 	Herrin, 	he
said, 	was 	one of 	the leaders 	of 	the group of people 	and 	she
didn't do 	anything 	about 	it 	so 	he 	attributed 	it 	to her. 	He
said 	he 	thought 	he might 	have 	said 	to 	her 	that 	"it would 	be
real 	difficult 	for 	him 	to 	work with 	her 	after 	some 	of 	the
activities 	that 	she 	had 	been 	involved 	in 	in 	the 	past 	against
our 	administration."
Board 	member 	Pittarelli 	testified 	that Miguel 	stated 	in
effect, 	"if 	it were 	up to me you'll 	never 	hold 	an
administrative 	position 	in 	this 	school." 	Peterson 	said 	that
Miguel 	said 	he 	didn't 	trust 	her. 	Hawk 	said 	that Miguel 	stated
that 	"he 	felt 	that 	she 	had 	done 	everything 	she 	could or 	made
great 	effort 	to discredit 	the 	board 	and 	the 	administration 	of
the 	district 	over 	a period 	of 	years 	and 	that 	he 	didn't 	think 	he
could 	work 	with 	her 	in 	an 	administrative 	job."
17

Herrin 	further 	testified 	that 	Miguel 	related 	the 	hurt 	her
conduct 	had 	caused 	him 	and 	that 	he 	commented 	that 	they 	had 	been
friends 	and 	how could 	she 	have 	done 	this 	to him. 	She 	had no
recall 	that 	he might 	have 	said 	that 	it 	wasn't 	because 	of her
union 	activities, 	but 	because of 	the 	way 	she conducted 	herself.
Herrin 	testified 	she 	pointedly 	asked 	Miguel 	"then 	you're
saying 	that 	I'll 	never 	be 	an administrator 	in 	this 	position
because 	of 	the 	role 	I played 	in 	negotiations?" 	And 	that 	he
replied, 	"that's 	right." 	Miguel 	said she 	asked 	"well, 	do you
mean 	you 	wouldn't 	vote 	for 	me 	because 	of my activities?" 	He
said, 	"no, 	I'm referring 	to you as 	an 	individual 	in past
activities." 	He 	said 	that's 	the way 	he 	judges 	all people, 	and
that 	he 	has 	"a 	lot of 	good 	friends 	who 	belong 	to 	the union."
Ingliss 	also 	testified 	that Miguel did make 	the 	statement,
"no, 	I don't 	have anything against you as a negotiator, 	I don't
have 	— 	negotiations 	isn't 	a 	concern 	here." 	Miguel 	further
stated, 	said Ingliss, "I'm concerned 	about what you 	said, 	to me
it was 	disloyal," 	or 	words 	to 	that effect and how hurtful 	the
things 	she 	had 	said 	had 	been 	to him.
After 	further 	words, 	Herrin and 	Ingliss 	left 	the 	meeting.
The 	board 	continued 	in 	executive 	session 	and 	discussed 	the
presentation, 	with 	Gilkey 	and Peterson present. 	While 	there 	is
a difference 	in 	the 	testimony of 	the 	board members 	about 	what
was 	said, Hawk credibly testified 	"well, 	it was—well, 	I 	think
all 	the 	members 	expressed 	shock 	and 	surprise 	at 	the—and
18

the—what 	we 	considered 	an 	attack 	on 	what 	we'd 	done 	in 	the 	past
few months, 	and 	I think on the 	basis of that, 	why, 	it was
generally 	understood 	among 	the 	Board 	members 	that 	the 	attitude
displayed 	there, 	why, 	there 	was no way we 	could work with 	her
in 	an 	administrative 	job." 	He 	thought 	the 	feeling 	was
unanimous 	among 	the 	members 	of 	the Board.
Hawk 	further 	testified 	that 	Gilkey 	and 	Peterson 	would 	have
been aware, 	since 	they were 	there, 	of 	the Board's 	attitude 	that
they didn't 	feel 	the Board could work with Mrs. 	Herrin 	in an
administrative 	capacity. 	Miguel 	testified 	that 	Peterson 	and
Gilkey participated 	in 	the 	conversation.
Delaney 	said he 	felt 	intimidated 	by 	her 	comments, 	and 	that
he 	wondered 	about 	her 	functioning 	as 	a professional 	because 	"in
the 	45 minutes 	that 	she 	spent 	before 	the Board, 	she 	failed 	to
get 	across 	the 	point 	that 	she 	was 	trying 	to make, 	whatever 	that
point was." 	It didn't appear 	to 	be 	too well 	organized 	and
"didn't 	seem to have a point, 	a direct point" 	and was 	"vague."
Pittarelli 	said 	he 	was 	not 	intimidated 	but 	felt 	she 	had 	not
made 	a point 	in her 	presentation. 	Hawk perceived 	a 	"threat."
Miguel 	felt 	she 	was 	intimidating 	the Board 	and 	he 	became
increasingly 	upset and disappointed. 	Miguel was, 	said
Pittarelli, 	still 	angry after 	her 	presentation.
Peterson 	said 	that 	after 	the 	meeting 	the Board members
asked what 	it was 	she 	wanted. 	He 	thought 	"they 	all 	felt
intimidated, 	and 	they 	had a definite 	feeling 	that 	she was
19

really 	coming 	on 	strong 	and 	threatening 	them 	that 	if 	they
didn't give 	the 	next job, 	well, 	she was going 	to mail 	these
letters, 	or 	what ever 	it was 	those letters were meant 	to be.
Peterson 	said 	that as 	a 	result 	of 	her 	presentation, 	his
view of 	Herrin 	as 	a 	candidate 	for 	a 	job was 	changed 	from the
"standpoint 	of 	her 	diplomacy 	in 	dealing 	with 	the 	people 	in 	this
thing. 	This 	was 	not 	an example of 	getting 	along well with
people 	to go 	in 	and—and 	confront 	a group of men who 	are your
employers 	in 	this 	fashion."
Gilkey's 	reaction 	is 	related 	in his 	testimony 	as 	follows:
Q. 	(By Mr. 	Galgani) 	Did you at 	the time of
the 	presentation 	by Mrs. 	Herrin reflect 	to
yourself 	on 	how 	that 	— 	the 	quality 	of 	that
presentation 	by her, 	did 	that 	have 	any
impact on your 	thinking of 	her 	as 	a
potential 	administrator—
A. 	No.
Q. 	— 	in 	the 	sense 	that 	— 	let 	me 	finish 	my
question 	if 	I 	may 	— 	in 	the 	sense 	that 	there
were 	any 	personal qualities 	manifested 	that
you might consider 	to 	be 	relevant 	to 	being
an 	administrator.
A. 	The one 	that comes 	to my mind would
probably maybe 	be 	classified 	under 	human
relations or 	diplomacy 	in 	talking 	to your
employers 	in 	that negative 	tone.
Director 	of 	Athletics
Bob Fraley, 	who had 	served 	some 	four 	years 	as 	athletic
director 	resigned, 	for 	health 	reasons, 	in mid-May 	1980. 	The
District posted 	a vacancy on 	the 	position on May 	30, 	1980. 	The
only person 	to 	apply was Warkentin, 	then 	serving 	as 	acting
20

vice-principal at Lemoore. 	In mid-June, 	Warkentin was
appointed 	to 	the 	position. 	Later 	that 	month 	the 	position 	title
was 	changed 	to 	reflect added duties 	relating 	to 	student
activities, 	brought about by 	the ongoing 	study of
reorganization 	as a 	result of 	the 	loss of 	Avenal High 	School.
Herrin 	acknowledged 	that 	Warkentin 	was 	better 	qualified 	for 	the
athletics 	aspects of 	the 	job, 	but 	felt 	they were 	equally
qualified 	regarding 	student 	activities.
Federal 	Projects 	Director-Special 	Education,-Curriculum
In June, 	1980, 	the District posted a position opening 	for
the Director 	of 	Federal 	Projects, 	Special 	Education and
Curriculum.10 Herrin 	applied 	for 	the 	job 	and 	appeared 	before
the 	screening committee, 	which consisted of Gilkey, 	Peterson
and Simone 	Ostrander, 	a high 	school 	teacher 	with 	the 	District
for 	six years.
Herrin 	started 	the meeting 	with 	the 	comment, 	"I don't 	know
why 	I'm here, 	because 	I 	know 	and you 	know 	I'm not 	going 	to get
this 	job." 	She 	also 	testified 	that Black's 	service 	as 	interim
director 	was 	another 	reason 	she 	knew 	she wouldn't get 	the 	job.
Peterson 	was 	upset 	by 	her 	remarks because 	he 	had 	come 	in
from his 	vacation 	for 	the 	interviews 	and 	told 	her 	so.
10This 	was 	the 	same 	position 	for 	which Black 	had 	been
appointed 	on an 	interim basis. 	However, 	the 	posted 	job
description 	expanded 	the 	position 	somewhat.
21

Ostrander 	testified 	that 	the 	panel 	had 	been 	given 	a
description of 	the 	job duties, 	a 	series of questions 	set 	forth
on a 	form.
Ostrander 	rated Herrin 	first 	and Black 	second. 	Herrin, 	she
said, 	was 	interviewed 	first, 	and Ostrander 	changed 	her 	rating
from 	the 	initial points 	she 	had 	given Herrin. 	She 	said 	that
she 	felt 	Herrin's 	approach 	was 	the 	best 	and 	that 	Black 	seemed
too 	"impersonal."
The 	Board 	accepted 	the 	recommendation 	of 	Peterson 	and
Gilkey 	to 	appoint Black 	to 	the permanent 	position. 	Hawk
admitted 	that 	he 	"imagined" 	he 	felt 	relieved 	that 	Herrin 	did
not 	get 	the 	recommendation. 	Miguel 	said 	he 	relied 	exclusively
upon Gilkey's 	recommendation.
There 	is 	no 	direct 	evidence 	of 	when 	the 	Board 	took 	action
to 	appoint 	Black 	to 	the 	permanent 	position of 	Director 	of
Federal Projects, 	Special Education and 	Curriculum. 	However,
Blacks 	application 	therefor was dated July 	7, 	1981, 	and
Herrin's was 	dated July 	8, 	1981. 	It 	is 	concluded 	therefrom,
that 	the 	appointment 	by 	the Board 	took place after 	July 	8, 	1981.
'
Herrin was 	unaware 	that 	other 	applicants 	for 	the 	job were
Warkentin, 	Bryon and Tonini. 	She 	said 	her 	interview with
Gilkey 	went 	well 	and 	that 	she 	had 	every opportunity 	to 	present
whatever 	she 	felt 	appropriate.
Gilkey 	considered 	experience 	as 	the 	most 	important 	factor.
He 	and 	Black 	worked 	together 	on 	applying 	for 	a 	grant 	from 	the
22

Criminal 	Justice committee 	that 	was 	successful. 	He considered
it 	a 	training 	session 	for 	Black.
In 	addition 	to 	the duties 	listed 	on 	the 	position 	vacancy
announcement, 	the 	director 	also was 	on 	the 	list of duty rosters
with 	other 	administrators 	who 	would 	rotate 	assignment 	to 	cover
extracurricular 	activities. 	Too, 	the 	director 	would coordinate
and 	supervise 	testing 	done 	by 	the 	county psychologist 	for
special education.
During 	his 	service as 	interim director, 	Black 	appeared
before 	the Board 	several 	times.
Vice 	Principal-Lemoore
Sometime 	in July of 	1980, 	Herrin learned of 	the
vice-principal 	vacancy. 	She 	had made 	arrangement 	to 	vacation
in 	Oklahoma 	and 	Gilkey 	accorded 	her 	additional 	time 	to apply
for 	the 	position.11 The 	announcement 	included 	as
qualifications, 	"Appropriate Administrative Credential, 	five
(5) 	years 	successful 	teaching 	experience, 	and a starting 	date
of August 22, 1980."
Gilkey 	testified 	that 	the 	qualifications 	for 	a
vice-principal 	would 	be 	someone 	with 	administrative
experience, 	self-discipline, 	knowledge of the 	state 	laws, 	had
11Her 	application 	for 	the 	vice-principal 	is 	dated
July 	18 f 	1980. 	She 	used 	the 	same 	application as 	she 	had 	for
the 	position of permanent 	Director 	of Federal Programs, 	Special
Services, Curriculum.
23

good 	rapport 	with 	the 	students 	and 	the 	staff, 	and would 	work
well with parents. 	In some 	instances, 	he 	said, 	being 	familiar
with 	the 	school 	and 	the 	community would 	help. 	Teaching
experience 	is 	also 	an 	important 	ingredient.
Gilkey 	testified 	that 	generally 	a 	department 	chairperson 	is
not 	an administrative position. 	In 	some districts 	it 	is. 	He
could 	not 	recall 	what 	the 	situation 	was 	where 	Rowe 	had 	been
chairman.
Herrin was 	given 	an 	appointment 	for 	an 	interview 	for 	the
vice-principal position, 	but 	because 	she 	was 	suffering 	from 	the
flu, 	she was 	unable 	to attend 	the 	scheduled meeting. 	She 	had
her 	husband 	hand 	deliver 	a 	letter 	to Gilkey 	the 	morning 	of 	the
scheduled 	meeting.12
1 2 The 	letter 	is 	set 	forth 	in part.
August 12, 1980
TO: 	Mr. 	Allen Gilkey, 	Interview Screening
Committee, 	and Board of 	Education
FROM: 	Opal 	Herrin
Thank 	you 	for 	the 	opportunity of 	applying 	for
the 	current 	vice principal 	vacancy at 	Lemoore
High School.
Mr. 	Gilkey 	and 	the 	rest of 	the 	Screening
Committee, 	I sincerely apologize 	to you 	for
not 	being 	able 	to 	keep 	my 	interview
appointment. 	I have 	the stomach flu, 	and
even 	though 	I 	think 	I'm recuperating, 	I 	don't
24

On 	the morning of 	the 	scheduled 	interview with 	Herrin, 	at
the 	time 	she was 	to come 	in, 	Gilkey's 	secretary, 	presented 	the
panel 	with 	her 	letter. 	Gilkey 	spoke with 	Herrin on 	the phone,
and 	then 	put Geneva Bengston, 	school nurse 	and 	a panel member,
on 	the phone. 	Bengston 	encouraged 	Herrin 	to come 	in 	for 	the
interview 	and 	assured 	Herrin 	that 	the 	panel would 	not 	catch 	the
flu. 	Bengston 	said 	that 	they 	reached 	an 	understanding 	that
feel 	that 	I 	should 	take 	the 	chance 	of
contaminating 	you.
I doubt that you 	need a resume, 	for 	I 	feel
that my abilities, 	inabilities, 	assets, or
liabilities 	are 	an 	"open 	book," 	for 	if 	you
don't 	know my virtues or 	my 	faults 	after 	26
years, 	than you will probably never 	know me
or 	them.
I 	recently 	appeared 	before 	the Board 	to 	try
to 	find 	out why 	I 	have 	been discriminated
against 	in 	filling 	administrative 	positions
at 	Lemoore 	High School or 	within 	the
District during 	the past year, 	and 	indeed, 	I
found out. 	I 	thought we 	could 	"talk out" 	a
problem that 	I 	felt existed. 	I 	tried 	to
tell you without actually 	saying 	it 	that 	I
did 	not 	want 	to 	file 	an 	"unfair" 	against 	the
District. 	I 	am sorry 	that 	I misjudged 	the
animosity (sic) 	that 	at 	least 	some 	of 	you
hold 	for 	those 	of 	us who 	were 	appointed 	by
our 	peers 	to do a 	job 	in negotiations. 	And
regardless of how you 	feel, 	I was not
unprofessional. 	I do apologize 	for my
speech 	delivery 	that 	apparently 	set 	up an
aura of defense 	from you, 	and 	that 	certainly
was 	not my 	intent.
25
• 	• 	• 	• 	•
• 	• 	• 	• 	•

should 	Herrin 	feel 	better 	by 	4:00 	that afternoon, 	she 	would
call 	and 	the 	panel would meet 	with 	her 	at 	8:00 	the 	next
morning. 	It 	is 	concluded 	that 	the parties did 	reach 	this
understanding.
Herrin did 	not 	call 	back.
Bengston 	said 	that 	because 	Herrin did 	not 	show 	up 	for 	the
interview 	the 	panel did 	not give 	her 	a 	rating 	as 	they did 	for
all other 	candidates. 	They did not, 	she 	said, 	discuss Herrin's
qualifications 	for 	the position. 	Peterson 	thought 	her 	absence
was 	a 	big 	factor 	in 	the 	recommendation 	for 	the 	vice-principal.
Another 	candidate 	showed 	up 	20 	minutes 	late 	and 	Peterson
thought 	that was 	noteworthy.
Larry Rowe, 	not previously employed by 	the District, 	also
applied 	for 	the position. 	He had, 	according to Gilkey, 	13 	to
15 	years 	teaching 	experience 	and 	had 	been 	a 	summer 	school
principal 	for 	two 	summers, 	one of which was an 	intern
position. 	The Board 	selected 	Rowe 	upon 	the 	unanimous
recommendation 	of 	the 	interview panel.
Members 	of 	the 	Board 	were 	aware 	that 	Herrin 	had 	applied,
and 	that 	she 	did 	not 	show 	for 	the 	interview. 	Hawk 	admitted
that 	he might 	have 	been 	relieved 	that 	the 	administration was
not 	recommending 	Herrin 	for 	the 	position. 	Delaney 	testified
that 	he was 	unsure of her 	qualifications 	because 	of 	the poor
representation 	she made 	before 	the Board 	at 	the May 	1 meeting.
26

Miquel 	said 	he 	relied 	exclusively 	on 	the 	recommendation of
Gilkey 	in making 	the 	choice.
Delaney 	testified 	that 	Rowe 	appeared 	at 	the 	meeting 	and 	was
questioned 	in 	the 	presence 	of 	the Board 	at 	which 	he 	was
selected. 	Pittarelli 	said 	Rowe 	was 	at 	the 	meeting where 	the
Board 	appointed 	him as vice-principal. 	The 	testimony of 	the
other 	Board 	members 	is 	vague 	on 	this 	point.
Herrin 	learned 	of 	Rowe's 	appointment 	from 	Rowe 	himself,
when 	he 	visited 	her 	real 	estate 	office 	to obtain 	assistance 	for
housing. 	Without 	knowing 	that 	she 	had 	applied 	for 	the 	job, 	he
told 	her 	that Gilkey 	had 	told 	him of 	the 	appointment 	but 	that
the Board 	had yet 	to approve 	it.
Peterson 	testified 	about 	a 	skin 	problem 	that 	Herrin 	had
that 	reacted 	to sunlight. 	On occasion 	in 	the past, 	she had
worn 	scarfs 	and 	large 	hats 	while out 	in 	the 	sun. 	He 	thought
this 	might 	be 	a 	problem with 	respect 	to 	the 	vice-principal
assignment 	because 	of 	the 	extensive 	amount 	of movement 	around
the 	campus 	required of 	the 	job.
Peterson 	also 	testified 	that 	they 	couldn't 	put off 	the
selection of 	the vice-principal 	any 	longer. 	School was 	to
start on September 	3 or 	4 	and ordinarily, 	Peterson 	said, 	the
vice-principal 	works 	all 	summer 	long 	getting 	ready 	for 	the 	fall
term. 	The 	teachers 	returned 	to 	school one 	week 	before 	the
beginning 	of 	school 	for 	meetings 	and 	the 	vice-principal was
expected 	to 	attend 	those 	meetings.
27

Posting 	of 	Positions
Herrin 	complained 	that 	some 	position 	vacancies 	were 	filled
without 	posting, 	and 	that 	this violated 	the provisions of 	the
contract.
The 	fact 	is 	the 	District 	did 	include 	management 	positions
in 	its posting. 	The May 25, 	1979, 	notice 	from Nordstrom
included 	the 	Director 	of Guidance; 	with 	the 	prefatory
statement, 	"In 	accordance with District 	Policy 	and 	Employee
Agreements, 	the 	following 	vacancies 	are 	being posted." 	The
October 	10, 	1979 	District 	announcement 	included 	the
vice principal - Athletic Director 	- Avenal vacancy; 	with 	the
prefatory 	statement, 	"In 	accordance with 	the District A.L.F.T.
Agreement 	the 	following 	positions 	are 	being 	announced 	as
vacant."
The evidence, 	however, 	reveals 	that only the 	interim
principal 	position 	at 	Avenal 	and 	the vice-principal 	at 	Lemoore
in 	the 	fall 	of 	1979, 	and 	the position of superintendent 	in
December 	of 	1979 	were 	not posted. 	As 	to 	the 	latter, 	Herrin
felt 	that 	Gilkey 	should 	have 	gotten 	the 	appointment 	and 	as 	to
the 	former, 	there 	is 	insufficient 	evidence 	that 	the District
did 	not 	post 	the 	positions 	for 	any 	reason 	of 	Herrin's 	possible
candidacy.
ISSUES
The issues in this case are:
28

1. 	Is 	the unfair practice 	charge 	barred 	by 	the EERA
statute 	of 	limitations?
2. 	Did 	the 	District 	discriminate 	against 	Opal Herrin 	in
the 	selection of 	the Director 	of 	Federal 	Projects, 	special
education 	and 	curriculum, 	or 	the 	position of vice-principal at
Lemoore 	High 	School 	because of 	organizational activities 	in
violation 	of 	Government 	Code 	section 	3543.5 (a)?
CONCLUSIONS 	OF 	LAW
The District filed, 	with 	their 	answer 	to the charge, 	a
Motion 	to Dismiss on 	the 	ground 	that 	the 	charge 	is 	barred 	by
the 	statute of limitations. 	Since, 	argues 	the District, 	the
charge was filed on December 	31, 	1980, 	and 	the operative date
of 	the charge 	is May 	1, 	1980 	(referring 	to 	the meeting Herrin
had with 	the Board of 	Trustees), 	the events given rise 	to 	the
charge 	occurred 	more 	than 	six 	months 	preceding 	the 	filing 	date
(June 31, 	1980) 	and pursuant 	to 	section 3541.5 	the charge must
be 	dismissed.
Under 	section 	3541.5, 	the 	Public Employment 	Relations Board
(hereafter 	PERB) 	is precluded 	from 	issuing 	a complaint 	in
respect 	to 	any 	charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring 	more 	than 	six 	months 	prior 	to 	the 	filing of 	the
charge. 	Thus, 	the defense 	of 	the 	statute of limitations,
timely 	raised, 	compels 	dismissal 	of 	any 	alleged violations
occurring before June 31, 	1980.
29

Here, 	Charging Parties contend 	unlawful or 	discriminatory
refusal 	to promote 	because 	of 	anti-union 	animus. 	Of 	the
promotional 	opportunities 	charging 	party 	complains 	were 	denied
her 	because of her 	union activities, 	two; 	the permanent
Director 	of 	Federal 	Projects, 	Special 	Projects 	and 	Curriculum
and 	the 	vice-principal at 	Lemoore 	High 	School were 	positions
for 	which 	the 	selection of 	persons 	took place 	after 	June 	31,
1981, 	and are, 	thus, 	within the 	six month period of limitation.
Even 	if 	one 	were 	to 	accept 	the District's 	argument 	that 	the
May 	1 	event 	was 	the 	decision 	to 	deny Herrin promotional
opportunities, 	because of her 	union activities, 	the effect of
that 	decision 	did 	not 	occur 	until 	July 	and August 	with 	respect
to 	the 	two noted 	positions. 	The effect of 	the decision, 	within
the 	limitation period, 	is 	reviewable 	as 	a potential violation
of 	the EERA. 	This conclusion 	is analogous 	to 	the holding of
the 	PERB 	in 	Carlsbad Unified School District 	(1/30/79) 	PERB
Decision No. 	89, 	3 PERC 	10031, 	where 	the Board held 	that while
the 	decision 	to make 	a 	transfer 	may 	have 	generated 	a 	right 	to
file a charge, 	still, 	separately, 	a charge could 	be filed on
the 	transfer 	itself, 	i.e., 	the effect of 	the decision. 	So
here, 	if 	the May 1 	event was a pronouncement of 	refusal 	to
promote 	Herrin 	because 	of her 	union 	activities, 	the 	effect of
that 	pronouncement 	was 	not 	carried 	out 	until 	July and August,
within 	the 	six 	month 	period.
30

The 	District's Motion 	to Dismiss 	on 	the 	statute of
limitations 	is, 	for 	the foregoing reasons, 	denied.
Charging 	Parties 	contend 	that 	Herrin 	was 	denied 	promotion
to 	the 	various 	administrative positions 	because of 	her
organizational 	activities.
Under 	section 3543.5(a), 	it 	is 	unlawful 	for 	the District to
. 	. 	. 	impose or 	threaten to impose reprisals
on employees, 	to discriminate or 	threaten to
discriminate against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of
rights 	guaranteed 	by 	this 	chapter.
Section 	3543 gives 	to employees 	the 	"right to form, 	join, 	and
participate 	in the activities of employee organizations 	. 	. 	.
for 	the purpose 	of 	representation on 	all matters 	of
employer-employee 	relations."
The PERB 	has 	established 	the 	test 	by which 	a violation of
section 	3543.5(a) 	is determined. 	In Carlsbad Unified School
District, 	supra 	(1/30/79) 	PERB Decision No. 	89, 	3 PERC 10031,
the PERB 	held 	that where 	the 	employer's 	conduct 	tends 	to or
does 	result 	in 	some 	harm 	to 	employee 	rights 	granted 	under 	the
EERA, 	and 	the harm to the 	employee's 	rights 	is 	slight, 	and 	the
employer 	offers 	justification 	based 	on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer 	and 	the 	rights 	of 	the
employees 	will 	be 	balanced 	and 	the 	charge 	resolved
accordingly. 	Where 	the 	harm 	is 	inherently destructive 	of
employee 	rights, 	the 	employer's 	conduct will 	be 	excused only on
31

proof 	that 	it was 	occasioned 	by circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative 	course 	of 	action was
available. 	Finally, 	irrespective of 	the 	foregoing, 	a charge
will 	be 	sustained 	where 	it 	is 	shown 	that 	the 	employer 	would 	not
have 	engaged 	in 	the 	complained-of 	conduct 	but 	for 	an 	unlawful
motivation, purpose or 	intent.
The District 	argues 	first 	that 	the 	feelings of Miguel, 	and
possibly Hawk 	cannot 	be 	transmuted 	to 	the Board 	as 	a whole.
Citing 	the 	reasons 	given 	by 	the 	three Board 	members 	for 	running
for 	office, 	the dismissal 	of 	the 	old 	superintendent 	and 	the
absence 	of 	any 	union 	issues 	appearing 	before 	the Board 	between
the 	time 	of 	their 	election 	and 	the May 1 meeting, 	the District
argues 	that 	the 	new members 	and 	thus 	a majority of 	the Board
did 	not 	harbor 	anti-union 	feelings 	toward 	Herrin.
Moreover, 	says the District, 	the appointments 	followed
recommendations 	of 	the 	administration 	and/or 	a 	selection panel,
thus, 	there 	is no cause 	and 	effect 	between 	the 	exercise of
union 	activity 	and 	her 	nonselection.
The 	District's 	arguments 	are 	rejected. 	The 	charging 	party
has 	shown 	that 	in May of 	1981 	the 	then president of 	the Board,
Miguel, 	was 	unequivocal 	that Herrin would 	not 	be employed 	as 	a
member 	of 	the 	administration while 	he was on 	the Board. 	She
would 	not 	be 	employed 	because 	of 	her 	conduct 	in 	organizational
activities. 	While Miguel 	contended 	that 	he 	did 	not 	hold 	the
fact 	that 	she was 	a negotiator 	against 	her, 	he was otherwise
32

clearly 	reacting 	to 	her 	participation 	in picketing 	and 	her
remarks 	about 	the Board. 	He 	further 	held 	her 	responsible 	for
the 	conduct 	of 	others 	without 	any proof 	that 	she promoted 	or
condoned 	such 	conduct. 	There 	is 	not 	one 	bit 	of 	evidence 	to
show 	that 	she 	engaged 	in 	unlawful 	conduct 	or 	brought
dispairment 	to 	the 	employer. 	She 	offended Miguel 	because 	his
sons 	were 	exposed 	to 	an 	unpleasant 	crowd 	and 	she 	happened 	to 	be
in 	the 	room 	at 	the 	time. 	Stan Hawk openly 	admitted 	he 	feels
the 	same 	way 	about 	her promotional 	opportunities. 	They have
shown 	that 	following 	the 	presentation Herrin made 	on
May 1, 	1980, 	the Board 	discussed 	her 	presentation 	and 	that
Gilkey 	and 	Peterson 	engaged 	in 	that 	discussion. 	They 	have
shown 	that 	subsequent 	to 	these 	events, 	Herrin 	applied 	for 	and
was 	denied promotion 	for 	two 	administrative 	positions. 	This
represents 	a nexus 	sufficient 	to 	apply 	the 	balance of 	the
Carlsbad 	test.
That 	there 	was 	a recommendation 	by 	the 	administration or 	a
selection panel 	does 	not 	change 	the 	result. 	The 	administration
and 	the 	panel were 	Gilkey 	and Peterson. 	While 	the panel did
include 	third persons, 	the 	controlling presence of Gilkey 	and
Peterson 	cannot 	be 	ignored. 	They were present 	at 	the May 	1
meeting, 	and 	as 	concluded 	elsewhere 	in 	this proposed 	decision,
it 	is 	inescapable 	that 	they would 	carry 	the 	message 	forward
regarding 	Herrin's 	candidacy.
33

The District 	next contends 	that 	there 	is 	no nexus 	between
the 	failure 	of Herrin to 	be 	appointed 	to 	any of 	the
administrative 	positions 	and 	her 	exercise 	of 	union 	rights 	under
EERA. 	Analyzing 	the 	interim 	and 	permanent 	selections 	of 	the
Director 	of Federal Projects, 	special education, 	and curriculum
and 	the 	vice-principal at Lemoore 	position 	selection, 	the
District 	contends 	those 	selections 	were 	based 	upon 	factors
unrelated 	to 	her 	union 	activities.
The 	interim Federal 	projects 	director 	was 	filled, 	says 	the
District, 	because 	the District 	needed 	to 	replace Gilkey
immediately, 	and 	the 	relative 	qualifications 	between Black 	and
Herrin gave 	the 	former 	the 	clear 	edge 	for 	appointment. 	The
permanent 	position was 	filled 	by 	the 	incumbent 	because 	of 	his
track 	record 	on 	the 	job 	for 	the 	previous 	six months 	and 	the
advantage Black 	had 	in previous 	administrative 	experience.
The 	District 	argues 	that 	Herrin was 	not 	serious 	about 	the
vice-principal 	at Lemoore 	position 	as 	she 	did 	not 	appear 	for
the 	interview, 	and 	the 	raters 	could 	not 	properly rank 	her 	for
consideration for the 	position 	because 	of 	that 	absence.
Finally, 	the 	District 	contends 	that 	Herrin's 	"exaggerated
assessment" 	of 	her 	ability 	and 	qualifications 	for 	any position
is 	the 	real 	basis 	for 	her 	claim.
The District's 	basic 	contention 	is 	that Herrin would 	not
have 	been 	hired 	for 	either 	position 	in any 	event. 	In Martori
Brothers Distributors 	v. 	ALRB 	(1981) 	S. 	Ct. 	81
34

Daily Journal D.A.R. 	2400, 	the California Supreme Court 	noted
the 	federal precedent 	in 	dual motive 	cases 	and 	required 	that
the ALRB employ 	the 	"but 	for" 	test.13 Where, 	said 	the Court,
. 	. 	. 	[it] 	appears that an employee was
dismissed 	because 	of 	combined 	valid 	business
reasons 	as well 	as 	for 	invalid 	reasons, 	such
as 	union or 	other 	protected 	activities, 	the
question 	becomes 	whether 	the 	discharge 	would
not 	have 	occurred 	'but 	for' 	the 	protected
activity.
The 	Supreme 	Court 	also 	noted 	that 	the 	adoption 	by 	the NLRB
of 	the 	test of 	"but for" 	in Wright Line, 	a Division of Wright
Line, 	Inc. 	(1980) 	251 NLRB No. 	1510 	[105 LRRM 1169] 	where 	the
NLRB 	held 	that 	once 	the 	employee 	has 	shown 	that 	his 	union
activities 	were 	a motivating 	factor 	in 	the 	employer's 	decision
to discharge 	him, 	the 	burden 	shifts 	to 	the 	employer 	to 	show
that 	the 	discharge 	would 	have 	occurred 	in 	any 	event. 	If 	the
employer 	fails 	to carry his 	burden 	in 	this 	regard, 	the Board 	is
entitled 	to 	find 	that 	the 	discharge 	was 	improper.
The 	final prong 	of Carlsbad 	includes 	the 	"but 	for" 	test. 	A
review of 	the 	positions 	filled 	by 	the 	District 	prior 	to 	the
May 	1, 	1980 	meeting 	between Herrin 	and 	the Board 	of 	Education
does 	not 	show, 	by a preponderance of 	the evidence, 	a practice
by 	the District 	of 	excluding 	consideration 	of Herrin 	for
positions within 	the 	administration. 	In other 	words, 	it 	cannot
13Labor 	Code 	section 	1148 	requires 	the ALRB 	to 	follow
applicable 	precedents 	of 	the National 	Labor 	Relations Act 	as
amended.
35

be 	said, 	that 	"but for" 	her 	union activity, 	the District would
have 	hired 	Herrin 	for 	each 	of 	those 	positions.
Analysis 	of 	the 	action of 	the District 	in 	appointments 	to
fill 	those 	positions 	is 	not 	barred 	by 	the 	statute 	of
limitations 	discussed 	in 	the 	first part of 	the 	Conclusions of
Law. 	The 	limitations 	period 	does 	not 	absolutely preclude
consideration 	of 	evidence 	of 	events 	occurring 	prior 	to 	the 	time
period. 	The 	National Labor 	Relations Act 	contains 	an EERA-like
six months statute of limitations 	(29 U.S.C. 	160 (b)).1 4
In 	drawing 	upon 	the distinction 	between 	using
pre-limitation 	period 	evidence 	to 	reflect on 	events 	inside 	the
time 	period 	and 	use 	of 	such 	evidence 	as 	the 	basis of 	unlawful
conduct 	in 	IAM Local Lodge 	1424 v. NLRB, 	the U. 	S. 	Supreme
Court1 5 noted:
. 	. 	. 	due regard 	for 	the purposes of section
10(b) 	requires 	that 	two different kinds of
situations 	be distinguished. 	The 	first 	is
one 	where 	occurrences within 	the 	six-month
limitations 	period 	in 	and 	of 	themselves may
constitute, 	as a substantive matter, 	unfair
labor practices. 	There, 	earlier 	events may
be 	utilized 	to 	shed 	light on 	the 	true
character 	of 	matters 	occurring 	within 	the
limitations period; 	and 	for 	that purpose,
14PERB will 	invoke 	federal 	precedent 	as 	guidance 	in
interpreting 	analogous provisions of EERA. 	Sweetwater 	Union
High School District 	(1976) 	EERB Decision No. 	4. 	Firefighters
Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 608, 	616.
15(1960) 	362 U.S. 	411 	[45 LRRM 3212].
36

section 	10(b) 	ordinarily does 	not 	bar 	such
evidentiary 	use 	of 	anterior 	events. 	The
second 	situation 	is 	that 	where 	conduct
occurring 	within 	the 	limitations 	period 	can
be 	charged 	to be 	an unfair 	labor 	practice
only 	through 	reliance 	on 	an 	earlier 	unfair
labor practice. 	There, 	the use of 	the
earlier 	unfair 	labor 	practice 	is 	not 	merely
"evidentiary," 	since 	it does 	not 	simply 	lay
bare 	a punitive 	current 	unfair 	labor
practice. 	Rather, 	it 	serves 	to cloak with
illegality 	that 	which 	was 	otherwise 	lawful
(362 U.S. 	at 416-17, 	45 LRRM at 3214-15).
In 	determining 	whether 	Herrin 	was 	denied promotional
opportunities 	with 	respect 	to 	the Director 	of 	Federal projects,
special education 	and 	curriculum position 	or 	the 	Lemoore 	High
School vice-principal 	position 	because 	of 	her 	union 	activities,
the 	earlier 	job opportunities 	and 	the 	circumstances of 	the
May 	1, 	1980 	Board 	meeting 	may 	be 	utilized 	to 	shed 	light 	on 	the
true 	character 	of 	the 	denial of 	the 	positions 	noted.
Director 	of 	Guidance 	and 	Counseling
Herrin's 	qualifications 	for 	the 	director 	of 	guidance 	and
counseling pale 	by comparison 	to 	those of 	Tonini, 	who was hired
by 	the 	District 	for 	the 	position. 	Tonini 	had 	a degree 	in
Psychology and 	a credential 	in counseling. 	Herrin had
neither. 	The 	director 	of 	guidance 	and 	counseling 	supervised
the 	counselors within 	the 	District 	and 	coordinated
psychological 	testing 	by 	the 	county psychologist. 	These
responsibilities 	would 	be 	best met 	by 	someone 	trained 	in 	the
field. 	Tonini had 	counseled 	for 	a year. 	Herrin had 	none.
37

Tonini 	had 	recent 	administrative 	experience 	in 	summer 	school
administration. 	Herrin's 	administrative 	experience was 	27
years 	ago, 	and 	in a small 	school.
Finally, 	Herrin's 	response 	to 	the 	student 	test 	form both 	at
the 	hearing and, 	at 	the 	time of 	the 	interview, 	as described 	by
Gilkey, 	was 	that 	she was 	unprepared 	to employ 	the 	form. 	It was
not 	unreasonable 	for 	the 	District 	to prefer 	Tonini's 	expertise
over 	her 	inability 	to read 	test scores. 	It 	simply cannot, 	from
the 	foregoing, 	be concluded 	that 	the District 	in 	this 	instance
would 	not 	have 	hired 	Tonini 	over 	Herrin.
Herrin's 	testimony 	about 	the 	reduction 	in 	salary was
adequately explained 	by 	the 	District. 	Tonini was 	in 	fact hired
at 	$19,500, 	the 	figure Herrin was 	told 	she would have 	to
accept. 	It was 	changed 	later 	along 	with 	all 	administrators'
salaries, 	by Board action.
The Acting 	Principal 	at Avenal
Cottini 	had 	been 	vice-principal at 	Lemoore 	at 	the 	time 	he
was 	selected 	by 	Nordstrom, 	and 	confirmed 	by 	the Board 	as 	acting
principal at Avenal. 	The 	resignation of 	the 	incumbent
principal 	was 	unexpected 	and 	the 	District 	had 	to move 	quickly
to 	secure 	an 	administrative 	appointment 	to 	fill 	the 	vacancy.
It 	was 	also at a 	time 	when 	the 	District was 	about 	to 	lose 	the
Avenal High School as 	a result 	of 	the 	unification of 	the 	Reef
Sunset Unified 	School District. 	There 	is 	insufficient 	evidence
38

presented 	by 	the 	Charging 	Party 	that 	this 	appointment 	was 	made
on 	any 	basis 	other 	than 	that Cottini 	was 	qualified 	and 	the
District 	had 	to move 	fast 	in 	securing 	a 	replacement.
The 	appointment of Warkentin 	raises 	the 	first 	inference 	of
question 	by 	the District. 	The position was 	not posted, 	nor
were 	interviews 	given 	for 	the 	position. 	Although 	Gilkey was
the 	assistant 	superintendent at 	the 	time, 	he could offer 	no
reason 	to 	explain 	why 	the 	position 	was 	filled 	without posting
or 	upon 	what 	basis Warkentin was 	appointed.
Herrin 	also 	testified 	about 	vice-principal positions 	at
Avenal. 	The 	District posted 	notice 	in 	the 	summer 	of 	1979 	for 	a
vice-principal/director 	of 	athletics 	position 	but 	the 	Charging
Party placed 	no 	evidence 	into 	the 	record 	that 	she 	applied 	for
or 	attempted 	to apply 	for 	that position.
Herrin also spoke of a position at Avenal 	in 1980. 	As 	the
record 	clearly 	shows, 	the Avenal High 	School became 	a part 	of
the 	Reef-Sunset Unified 	School District, 	effective 	for 	all
purposes, 	on July 	1, 	1980. 	The Lemoore Board 	had 	absolutely no
power 	over 	the 	selection of 	persons 	by 	the 	other 	school
district. 	Indeed, 	an 	understanding 	with 	the 	Reef-Sunset Board
with 	the 	Lemoore Board 	led 	to 	the 	selection of 	the 	new
principal at Avenal High School, 	by 	the 	Reef-Sunset Board 	in
February of 	1980. 	Because of 	this 	and 	the 	absence of 	further
direct evidence 	of 	the particulars of either 	position, 	no
findings 	can 	be made 	thereon.
39

Director 	of 	Projects 	and 	Special Education. 	(Interim)
The 	evidence 	established 	that 	the 	position 	requires
exercise 	of 	responsibility 	for 	the 	operation of 	federal
programs, 	vocational education 	and 	early 	childhood 	education
programs. 	Herrin had no experience 	in 	these areas. 	The
position 	required 	the 	exercise 	of 	responsibility 	for 	special
education 	about 	which 	she 	had 	no 	experience 	except 	for
individual students 	in her 	class. 	The position 	required
assistance 	in 	the 	development of 	individual education programs
for 	students, 	something 	she had 	not done 	before. 	The position
required 	the 	application 	for 	and 	the 	administration 	of 	federal
grants. 	She had 	experience 	in neither. 	Finally 	she 	had 	no
experience 	in 	budgetary control of 	federal grants. 	On 	the
other 	hand, 	Black 	had 	assisted 	Gilkey 	the 	previous 	summer 	in
developing 	a 	successful 	criminal 	justice 	grant 	and 	had,
according 	to his 	resume, 	worked 	in vocational education and
coordinated 	the 	vocational 	consumer 	education 	program with 	the
District. 	He 	had 	worked 	in 	the 	special education program
within 	the 	District 	and 	had done 	IEP 	for 	individual 	students.
Finally, 	he 	had 	experience 	in coordinating 	curriculum
development.
Thus 	it 	cannot 	be concluded 	that 	the 	selection of Black
over 	Herrin would 	not 	have 	occurred 	but 	for 	her 	organizational
activities.
40

The 	Director 	of 	Athletics
When 	Fraley 	resigned, 	the 	District posted 	the 	position 	of
athletic 	director 	for 	which Warkentin was 	the only 	applicant.
Later, 	at 	the 	end of June 	in conjunction with 	its 	own ongoing
reorganization, 	the District added duties 	relating 	to 	student
activities. 	Herrin admitted 	that Warkentin was 	better
qualified 	than 	she 	in 	the 	area of athletics, 	but 	she 	felt 	she
was 	better 	with 	regard 	to 	the 	student 	activities. 	The 	fact
that 	she 	did 	not 	apply 	for 	the 	position 	negates 	any contention
of 	the 	District's motive 	in not 	hiring 	her. 	The 	reorganization
was 	an 	event 	occasioned 	by 	the 	transfer 	of Avenal 	to
Reef-Sunset 	and 	resulted 	in 	a 	number 	of 	organizational
changes. 	The 	addition of 	the 	student activities 	responsibility
to 	the 	director 	of 	athletics 	carries 	no 	inferrable 	reflection
on 	Herrin. 	It 	is concluded 	that 	charging party has 	failed 	to
show 	that 	"but 	for" 	the 	activities of Herrin 	she 	would have
been 	selected 	over 	Warkentin 	for 	this 	position.
Permanent 	Director 	of Federal Projects, 	Special Education 	and
Curriculum
The 	selection 	of 	Black 	was 	based 	upon 	a 	recommendation 	of
Gilkey and Peterson, 	who had, 	as has 	been found, 	been exposed
to 	the Board's 	determination 	towards Herrin's 	candidacy. 	A
third 	member 	of 	the 	panel 	recommended 	Herrin 	for 	the 	position.
Given 	the 	taint of 	the May 	1 meeting 	and 	its 	effect 	upon 	Gilkey
and Peterson, 	as well 	as 	the disposition of 	the Board as
41

evidenced by Miguel and Hawks' 	testimony, 	it maybe questioned
that Herrin's 	application was 	considered, 	in relation 	to Black,
free 	from her organizational activities.
As 	correctly pointed out, 	however, 	by 	the District 	in 	its
post-hearing brief, 	the position 	in June 	1980, 	was open 	to
candidates, 	including Black 	who had, 	in 	the opinion of Gilkey
and 	members 	of 	the Board, 	performed 	the 	job 	in 	an acceptable
manner. 	He 	has 	gained 	the 	experience 	of 	four 	or 	five months on
the 	job. 	His 	initial 	appointment 	to 	the 	interim position was
found 	to 	be 	nonsuspect and 	the 	permanent 	appointment 	is 	not
made 	any 	less 	so because 	it 	takes place 	five months later, 	and
after 	the May 	1 Board 	meeting. 	Black's 	qualifications 	in
February, 	and 	again 	in June, 	exceed 	those of Herrin. 	It 	is
concluded 	that 	Herrin 	would 	not 	have 	been 	appointed 	over 	Black
under 	any circumstances.
Vice 	Principal 	- 	Lemoore 	High 	School
While 	it 	is 	not 	intended 	to weigh 	the 	relative
qualifications 	of 	Rowe 	and Herrin 	for 	the 	position 	of
vice-principal at 	Lemoore, 	their 	signal difference 	is 	that 	Rowe
had 	two years of 	summer 	school principal experience, 	one 	of
which 	was on 	internship, 	and 	he 	had 	been a department
chairman. 	The 	notice of 	the 	position did 	not 	require
administrative 	experience 	(only 	an 	administrative 	credential)
and 	it was 	not 	shown 	that 	the 	District 	at which 	Rowe 	previously
served 	department 	chair 	was 	of 	the 	type 	that could 	be
42

considered 	administrative 	in character. 	As opposed 	to his 	15
years of 	teaching, 	Herrin had over 	27 	years of 	teaching
experience 	and 	had 	served 	as 	the 	District 	special 	officer 	for
purposes 	of 	insurance. 	She was well 	acquainted 	with 	the
school, 	the community and 	the staff. 	Rowe was 	a newcomer 	to
the District.
This 	case 	raises 	the 	specter 	of 	the 	final part 	of 	the
Carlsbad 	test. 	It 	is 	undisputed 	that 	two Board members would
not 	consider 	promotion of 	Herrin 	because 	of her 	exercise 	of
organizational activities, 	unacceptable 	to 	them, 	yet not 	shown
to 	be 	outside 	of 	the 	protection 	afforded 	by 	the 	EERA. 	At 	the
meeting 	just 	following 	her 	presentation, 	with 	Gilkey 	and
Peterson present, 	the Board discussed her 	appearance, 	her
accusations 	against 	the Board, 	and 	their 	personnel policies.
The nonspecific 	answers 	by 	the 	remaining 	three 	members 	to 	the
inquiry of 	what was discussed 	fail 	to overcome, 	in 	the 	face of
Miguel's 	continued anger, 	and Hawks' 	candid assessment of 	the
Board's 	cumulative 	reaction 	to her 	presentation, 	the 	inference
that 	as 	a result of 	that 	discussion 	the Board 	as a whole, 	would
not 	consider 	Herrin 	and 	Gilkey 	and 	Peterson would 	not 	venture
her 	name 	as 	a nominee 	for 	an 	administrative 	position.
Both 	testified 	that 	as 	a 	result 	of 	the meeting 	they 	had
changed 	their 	thinking 	as 	to her 	qualifications. 	The 	change
related 	to 	her 	confronting 	the Board with 	questions 	about 	their
43

practice of promoting 	employees. 	Peterson16 questioned 	her
diplomacy 	in 	"confronting 	a group of 	men 	who are your 	employers
in 	this 	fashion," 	and Gilkey 	testified 	that 	the 	quality of her
presentation did 	not 	affect 	his 	thinking of 	her 	as 	an
administrator 	but 	rather, 	in 	talking 	to the 	employer 	in 	"that
negative 	tone." 	These perceptions, 	standing alone 	raise
questions of a proper 	or 	lawful 	response 	to an employee 	seeking
explanation 	about 	employment practices of 	the 	employer.
Unquestionably, 	Herrin had 	a 	right 	to ask 	the Board 	about
possible discrimination 	in 	their 	employment practices. 	To do
so 	is 	an 	inherent part of 	the matter 	of 	employer-employee
relations 	about 	which 	the EERA 	is 	designed 	to promote 	and 	as 	an
activity 	it 	is 	designed 	to protect.
Moreover, 	there 	is a 	reasonable 	inference drawn 	from the
post-Herrin presentation meeting of 	the Board, 	on May 	1, 	1980,
that 	Gilkey 	and 	Peterson 	knew 	full 	well 	that 	the Board's
sentiments 	were 	simply 	not 	conducive 	to positive 	consideration
16Peterson's 	credibility 	is 	questioned 	by 	his 	adamant
insistence that 	there 	was 	no 	discussion 	during 	the 	executive
session with 	Herrin present, 	about 	the 	District's 	consideration
of 	salary of 	prospective 	employees. 	Yet other 	Board 	members
acknowledged 	such discussion. 	In 	addition, 	while 	admitting
that 	he 	told 	Herrin 	she 	had 	a good 	shot 	at 	the 	vice-principal
position, 	and 	that 	she was 	a strong 	candidate 	for 	the position,
he 	then 	opined 	that 	because 	of 	her 	"skin problem" 	she would 	not
be 	suitable 	for 	the 	position.
44

of 	Herrin 	by 	the 	Board 	for 	any 	administrative 	position.17
With 	two Board 	members 	admittedly opposed 	to her 	candidacy, 	a
third, 	Martin who professed great 	respect 	for Miguel, 	and 	the
remaining 	two members perplexed 	by her presentation, 	it 	is
ineluctable 	that 	Gilkey 	and 	Peterson 	would 	not 	recommend 	her 	to
the Board.
The 	unexplained 	variance 	of 	the 	District practice 	of
filling 	positions 	from within 	the 	ranks 	of 	its 	own 	employees,
in 	hiring 	Rowe, 	an outsider 	for 	the 	vice-principal at Lemoore,
17	17And	And 	where, 	as here, 	the employer's motive is 	the
central 	issue, 	the 	factfinder must often 	rely heavily on
circumstantial evidence 	and 	inferences. 	Only 	rarely 	will 	there
be 	probative direct 	evidence 	of 	the 	employer's motivation.
(Shattuck Denn Mining Corp. 	v. 	NLRB 	(9th Cir. 	1966) 	362 F.2d
466.) 	It 	is 	a well-established 	rule 	that 	in such cases 	the
Board 	is 	free 	to draw 	inferences 	from all 	the circumstances,
and 	need 	not 	accept 	self-serving 	declarations of 	intent, 	even
if 	they 	are 	uncontradicted. 	(NLRB v. 	Pacific Grinding Wheel
Co. 	Inc. 	(9th Cir. 	1978) 	572 F.2d 1343; 	Shattuck Denn Mining
Corp. 	v. NLRB, 	supra, 	362 F.2d 466; 	NLRB v. Warren L. Rose
Castings 	Inc. 	(9th Cir. 	1978) 	587 F.2d 1005, 1008; 	Royal
Packing v. 	ALRB et al. 	(4th Cir. 	2/4/80) 	4 Civ. No. 	18956.)
In Marin Community College 	District 	(11/19/8 0) 	PERB
Decision No. 	145, 	4 PERB 11198 	the PERB stated:
While 	the 	actual motive of 	an 	employer 	who disciplines 	a
union 	activist 	is 	seldom revealed 	by 	direct 	evidence, 	the
illegal purpose 	harbored 	by 	the 	discriminating 	employer 	may 	be
inferred 	from 	the 	circumstances 	surrounding 	the 	discipline 	or
discharge. 	These may 	include 	anti-union 	animus 	exhibited 	by
the employer 	or 	its 	agents; 	the pretextual nature of 	the
ostensible 	justification; 	or 	other 	failure 	to establish 	a
business 	justification 	(citing Shattuck 	Den Mining Corp. 	v.
NLRB 	(1966) 	362 F.2d 	466 	[62 LRRM 2401])
45

as opposed 	to Herrin, 	who had 	been advised 	by Peterson, 	before
the May 	1 meeting, 	that 	she 	should apply 	for 	it 	because 	she
would 	have a 	good 	shot at 	it, 	and 	by Gilkey, 	that 	she 	should
apply 	for 	the 	position 	work 	against 	the 	District's 	contention
that 	she 	was 	not qualified 	for 	that position. 	Gilkey and
Peterson 	did 	not 	recommend Herrin 	to 	the Board 	because 	they
knew 	she 	would 	not 	be considered 	by 	the Board, 	and 	they 	knew
that 	she 	would 	not 	be considered 	by 	the Board 	because 	of her
organizational 	activities. 	The Board 	itself, 	and 	through 	it's
administrative 	staff 	in 	the 	persons of Gilkey 	and Peterson were
withholding 	consideration 	of 	Herrin's 	application 	because 	of
her 	exercise 	of 	activities 	guaranteed 	by 	the 	provisions of 	the
EERA.
The 	failure of 	the committee 	to 	rate 	Herrin 	is 	also
unexplainable. 	Bengston had 	known 	Herrin 	for 	17 years. 	Gilkey
had 	known 	her 	at 	least 	since 	1970 	and 	had 	interviewed 	her 	for
no less 	than 	four 	other 	positions. 	Peterson, 	too, 	was well
acquainted 	with 	Herrin, 	both 	professionally 	and 	socially 	and
had 	participated 	in other 	interviews 	involving 	her. 	While 	her
absence 	from an 	interview on 	the 	day 	in 	question may 	have
precluded direct 	questions 	by 	the panel, 	they could 	have 	at
least 	formulated 	a 	rating 	for 	Herrin on 	the 	basis 	of 	their
personal 	knowledge of 	her. 	Their 	failure 	to 	rate her 	is 	more
consistent 	with 	a determination 	by Gilkey 	and Peterson 	not 	to
46

recommend 	her 	to 	the 	Board 	than 	an 	inability 	to 	rank 	her 	among
the contenders 	for 	the position.
It 	has 	been 	established 	that 	the 	Board 	was 	refusing 	to
consider 	Herrin 	for 	promotion 	for 	administrative 	positions
because 	of 	her 	organizational activities. 	Under 	the 	Carlsbad
test, 	if 	the 	employer 	can show 	that 	the 	appointment would 	have
gone 	to someone 	else, 	in any event, 	it will 	be exonerated 	from
the charge.
The 	only direct 	evidence 	of 	the 	comparison 	of Rowe 	and
Herrin 	was 	Peterson's observations 	about 	the 	former. 	Rowe,
said 	Peterson,
. 	. 	. 	really came across 	strong 	in the
interview. 	He came 	across—his papers 	were
excellent. 	You wouldn't 	find 	them any
better, 	I don't 	think. 	He's enthusiastic,
he's 	had—it 	seemed 	like 	it 	was 	about 12
years 	experience 	as 	department 	head. 	He 	had
served 	as—let's 	see—he'd 	done 	some 	work 	on
a 	federal project 	in 	connection with 	his
social 	studies 	department. 	The 	people
thought 	he 	was a person 	that would 	take 	on
any 	job. 	They 	thought 	if 	he 	had 	a
shortcoming he might 	try 	to do 	too much, 	and
if 	there's one 	thing 	I 	like 	it's a hard
worker.
The 	determination 	of 	superior 	qualification 	on 	the 	part 	of
Rowe 	is unaided 	by 	such 	testimony. 	There 	is no evidence of
what papers were 	considered 	to 	be 	considered 	"excellent" 	as
compared 	to 	Herrin. 	She did 	not 	have 	the 	benefit of 	an
interview 	to 	compare 	enthusiasm. 	Gilkey 	said 	that 	Rowe 	had
only 	four 	years 	of 	department 	chairman 	experience. 	Finally,
47

there 	was 	absolutely no 	suggestion 	the 	experience 	in 	federal
projects 	was 	a criteria 	either 	necessary or 	considered 	by
Gilkey 	as 	significant. 	Indeed, 	the 	panel 	did 	not 	rate 	Herrin
because 	of 	her 	absence.
Finally, 	there 	is 	the 	matter 	of 	the Board 	meeting 	with 	Rowe
before his 	selection. 	They 	had 	no 	rating of 	Herrin 	and yet
they 	knew 	she 	had 	applied 	and 	they 	knew 	she 	had 	been 	unable 	to
make 	the 	interview 	because 	of 	her 	illness. 	An 	interview with
Rowe 	and 	not 	with 	Herrin 	was 	but 	another 	example 	that 	Herrin
was 	not 	going 	to get 	an opportunity 	to move 	into an
administrative 	position.
Rowe 	was present 	at 	the 	meeting 	when 	he was 	selected.
Gilkey 	told 	Rowe 	before 	the Board 	meeting 	that 	he 	would 	be 	the
appointed 	person. 	The 	Board 	wasn't 	weighing 	competing
qualifications 	between 	Herrin 	and 	Rowe. 	She 	wasn't 	rated 	and
had 	no 	standing 	against 	Rowe. 	She 	had 	no 	standing 	because
Gilkey and 	Peterson 	were 	not going 	to 	submit 	her 	name 	to 	them.
The 	above 	circumstances 	and 	the 	absence 	of 	any 	evidence
that 	Rowe would 	have 	been hired 	in 	any event, 	necessitates 	a
conclusion 	that 	Herrin was 	not 	given 	consideration 	for 	the
vice-principal 	because 	of 	her 	organizational 	activities. 	This
is 	a violation 	of her 	rights 	under 	the EERA.
The 	District's 	argument 	that 	Herrin was 	not 	interested 	in
the 	job 	is 	rejected. 	She was 	interested 	in advancement. 	In
the 	face 	of 	the 	reaction of 	the Board at 	the May 1 meeting, 	she
48

applied 	for 	and 	interviewed 	for 	the 	director 	of 	federal
projects. 	She 	did 	apply 	for 	the 	vice-principal at Lemoore.
Her 	use 	of 	the 	same 	form 	for 	the vice-principal position as 	for
the 	Director 	of 	federal projects 	does 	not mitigate 	against 	her
interest.
There 	is 	no 	evidence 	that 	her 	illness 	was 	anything 	other
than what 	she 	said 	it was. 	Her 	letter of August 12, 	1980
stands 	unrefuted. 	She was 	ill 	and 	could 	not make 	the 	interview.
Finally, 	while 	Herrin may 	have 	had 	high 	regard 	for 	her
qualifications 	for 	the positions 	she 	applied 	for, 	such
assessment 	does 	not enure 	to 	the District's 	benefit 	in 	light of
the 	circumstance 	for 	which 	it 	was 	denying 	her 	fair
consideration 	for 	advancement 	to 	an 	administrative 	position.
Based 	upon 	the 	foregoing, 	it 	is 	concluded 	that 	the 	District
violated 	section 	3543.5(a) 	by discriminating 	against 	Opal
Herrin 	in 	the 	selection of 	the 	Lemoore 	High 	School
vice-principal 	position.
REMEDY
Section 	3541.5(c) 	gives 	PERB
. 	. 	. 	the power 	to issue a decision or order
directing 	an offending 	party 	to cease 	and
desist 	from 	the 	unfair 	practice 	and 	to 	take
such 	affirmative 	action, 	including but 	not
limited 	to 	the 	reinstatement 	of 	employees
with or 	without backpay, 	as will 	effectuate
the 	policies of 	this 	chapter.
Having 	found 	that 	the 	District did 	discriminate 	against
Opal Herrin 	in 	the 	selection 	of 	the 	Lemoore 	High 	School
49

vice-principal position, 	the 	District will 	be ordered 	to cease
and 	desist 	from discriminating 	against 	Herrin 	because 	of 	the
exercise 	of 	rights 	protected 	by 	the 	EERA or 	otherwise
discriminating 	in violation of section 3543.5 (a). 	To
effectuate 	the purposes of 	the EERA 	it 	is 	appropriate 	to ensure
that 	the 	District 	does 	not 	discriminate 	against 	Herrin 	or
anyone 	for 	the 	exercise 	of 	organizational 	rights. 	Towards 	this
end 	it 	is 	appropriate 	to 	give Herrin 	an 	opportunity 	to 	be
considered 	for 	the 	Lemoore 	High 	School 	vice-principal 	without
regard 	to such 	activities. 	Therefore, 	the 	District will 	be
ordered 	to 	reopen 	the 	selection process 	for 	the 	vice-principal
position 	at Lemoore 	High 	School and 	to consider 	all 	candidates
for 	the 	position 	at 	the 	time 	without 	regard 	to organizational
activities, 	with 	the caveat 	that Herrin will 	be given 	full 	and
fair 	opportunity 	for 	selection 	without 	discrimination 	due 	to
her 	organizational activities.
The 	Federation 	requests 	that 	the 	District 	be ordered 	to
appoint 	Herrin 	to 	the 	next 	open 	administrative 	position
comparable 	in 	job classification, 	duties 	and 	responsibilities
and 	compensation 	to 	those 	positions previously 	denied 	her 	and
that 	she 	be made 	whole 	by 	an 	award 	in 	the 	amount of 	back 	pay
differential 	between her 	current 	salary 	and 	the 	salary of 	the
first 	administrative 	position 	unlawfully 	denied 	her.
Neither 	remedy 	is 	appropriate. 	Herrin 	should 	be considered
for 	job opportunities, 	based 	upon her 	relative qualifications
50

with 	other 	candidates, 	without 	regard 	to her 	organizational
activities. 	That 	is 	addressed 	in 	this proposed order. 	To
order 	a 	pay differential 	such 	as 	requested 	would 	be 	tantamount
to 	finding 	that 	she 	was 	entitled 	to 	the 	position 	of
vice-principal at 	Lemoore High School, 	a 	finding 	that 	is 	not a
part 	of 	this proposed decision. 	Her 	application 	for 	that
position 	will 	be 	considered without 	regard 	to her
organizational 	activities, 	a 	remedy 	ordered 	herein 	and 	one 	that
is 	appropriate 	to 	the circumstances of 	this case.
It 	is 	also 	appropriate 	that 	the 	District 	be 	required 	to
post a 	notice 	incorporating 	the 	terms of 	the order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent of 	the 	District
indicating 	that 	it will comply with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such 	a notice
will 	provide 	employees with 	notice 	that 	the 	District 	has 	acted
in 	an 	unlawful manner 	and 	is 	being 	required 	to cease 	and desist
from 	this 	activity 	and 	to 	restore 	the 	status quo. 	It
effectuates 	the 	purposes 	of 	the 	EERA that 	employees 	be 	informed
of 	the 	resolution 	of 	the controversy 	and will 	announce 	the
District's 	readiness 	to comply with 	the 	ordered 	remedy. 	See
Placerville 	Union 	School 	District 	(9/18/78) 	PERB 	Decision
No. 	69. 	In Pandol and Sons v. 	ALRB and UFW 	(1979) 	98
Cal.App.3d 	580, 	587, 	the California District Court of Appeal
approved 	a 	similar 	posting 	requirement 	in NLRB v. 	Express
Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
51

PROPOSED 	ORDER
Upon 	the 	foregoing 	facts, 	conclusions of 	law and 	the 	entire
record 	in 	these cases, 	it 	is hereby ORDERED 	that 	the Lemoore
Union High School 	District 	and 	its 	representatives 	shall;
A. 	CEASE 	AND DESIST 	FROM: 	Discriminating 	against
Opal Herrin 	because 	of 	the 	exercise 	of 	rights 	guaranteed 	by 	the
Educational 	Employment 	Relations Act or 	otherwise
discriminating 	in 	violation 	of Government 	Code 	section
3543.5(a).
B. 	It 	is 	further 	ORDERED that 	the 	Lemoore 	Union High
School 	District 	and 	its 	representatives 	shall 	take 	the
following 	affirmative 	actions 	which 	are 	necessary 	to 	effectuate
the 	policies 	of 	the 	Educational 	Employment 	Relations Act;
1. 	Reopen 	the 	selection 	process 	for 	the
vice-principal 	position 	at 	Lemoore 	High 	School 	and 	to consider
all 	candidates 	having 	applied 	for 	the 	position 	without 	regard
to 	organizational 	activities 	and 	to give 	full 	and 	fair
opportunity 	for 	the 	selection 	without 	discrimination 	to 	Opal
Herrin.
2. 	Within 	five days of 	the 	date 	that 	this 	proposed
decision becomes 	final, 	post at all 	school 	sites 	and 	all other
work 	locations 	where 	notices 	to 	certificated 	employees
customarily are placed, 	copies of 	the 	attached 	notice. 	Such
posting 	shall 	be maintained 	for 	a period 	of 	30 	workdays.
52

Reasonable 	steps 	shall 	be 	taken 	to ensure 	that 	these 	notices
are 	not 	altered, 	defaced 	or 	covered 	by 	any other 	material.
3. 	Within 	ten 	(10) 	workdays 	from service of 	the
final decision 	herein, 	notify 	the 	Sacramento Regional Director
of 	the Public Employment Relations Board, 	in writing, 	of 	the
steps 	the 	employer 	has 	taken 	to comply with 	the 	terms 	of 	this
ORDER. 	Continue 	to 	report 	in writing 	to 	the 	regional director
periodically 	thereafter 	as 	directed. 	All 	reports 	to 	the
regional 	director 	shall 	be 	served 	concurrently on 	the 	Charging
Parties 	herein.
C. 	All 	other 	allegations 	in 	the 	charges 	are 	hereby
DISMISSED.
Pursuant 	to California Administrative Code, 	title 8, 	part
III, 	section 32305, 	this Proposed 	Decision and Order 	shall
become 	final 	on November 	16, 	1981 unless 	a party files 	a
timely 	statement 	of 	exceptions. 	See 	California Administrative
Code, 	title 8, 	part 	III, 	section 32300. 	Such 	statement of
exceptions 	and 	supporting 	brief must 	be 	actually 	received 	by
the 	executive 	assistant 	to 	the 	Board 	itself 	at 	the 	headquarters
office 	in 	Sacramento before 	the close of 	business 	(5:00 	p.m.)
on November 16, 	1981 	in order to be 	timely filed. 	See
California Administrative Code, 	title 8, part III, 	section
3213 5. 	Any 	statement of 	exceptions 	and 	supporting 	brief must
be 	served 	concurrently with 	its 	filing 	upon 	each party 	to 	this
53

proceeding. 	Proof 	of 	service 	shall 	be 	filed with 	the 	PERB
itself. 	See 	California Administrative Code, 	title 8, 	sections
32300 and 32305, 	as amended.
Dated: 	October 26, 	1981
Gary Gallery
Hearing 	Officer
54