Fremont Union High School District (PERB 0301E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL EMPLOYEES
ASSOCIATION 	AND 	ITS 	FREMONT 	CHAPTER
No. 237,
Charging 	Party,
v.
FREMONT 	UNION HIGH 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-577
PERB Decision No. 	301
April 6, 	1983
Appearances; 	Janae Novotny, 	Field Representative 	for 	the
California School Employees 	Association 	and 	its 	Fremont 	Chapter
No. 	237; 	Patricia P. White, Attorney 	(Littler, Mendelson,
Fastiff 	& Tichy) 	for 	the Fremont Union High School District.
Before Gluck, 	Chairperson; Morgenstern and Burt, Members.
DECISION
BURT, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB 	or Board) 	on 	exceptions 	to 	the 	proposed
decision of 	the 	administrative 	law judge 	(ALJ) 	filed 	by 	the
Fremont 	Union High School District 	(District). 	The ALJ 	found
that 	the District violated 	subsections 	3543.5(a) 	and 	(b) 	of 	the
Educational Employment Relations Act 	(EERA) 	by denying
California 	School Employees Association 	and 	its 	Fremont 	Chapter
No. 	237 	(CSEA), 	the exclusive representative of the District's
classified 	employees, 	the 	right 	to 	represent 	a member 	in
grievance 	processing 	and 	by 	denying 	to 	employee
)
)
)
)
)
)
)
)
)
)
___________ !

Kathleen 	Liccardo 	the 	right 	to 	such 	representation 	by 	a 	labor
organization 	of 	her 	choosing.1
CSEA 	filed 	no 	exceptions. 	For 	the 	reasons 	set 	forth 	below,
we 	affirm 	the 	findings 	of 	fact 	and 	the 	result 	reached 	by 	the
ALJ. 	His 	proposed 	decision 	is 	incorporated 	by 	reference 	herein,
FACTS
We 	find 	the ALJ's 	statement 	of 	facts 	to 	be 	free 	of
prejudicial 	error, 	and 	adopt 	that 	portion 	of 	his 	decision 	as
the 	decision 	of 	the 	Board 	itself. 	The 	relevant 	facts 	may 	be
briefly 	summarized 	as 	follows:
At 	all 	times 	material 	herein, 	Kathleen 	Liccardo 	was
employed 	by 	the 	District 	as 	senior 	secretary 	in 	the 	Adult
Education Center. 	Her 	position 	is 	in 	the 	classified 	employee
unit 	represented 	exclusively 	by 	CSEA.
In 	early 	1981, 	Liccardo 	noted 	what 	she 	felt 	was 	a
discrepancy 	in 	the 	amount 	of 	sick 	leave 	she 	had 	accrued, 	as
1EERA 	is 	codified 	at 	Government 	Code 	sections 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code,
Subsections 	3543.5(a) 	and 	(b) 	provide 	as 	follows:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
22

recorded 	in 	the 	sick 	leave 	status 	report 	compiled 	by 	the
District. 	She 	felt 	that 	she 	had 	accrued 	76 	days of 	sick 	leave,
whereas 	the 	report 	indicated 	that 	she 	had 	accrued 	only
66 	days. 	She 	therefore marked 	the 	space 	on 	the 	form which
indicated 	that 	she 	did 	not 	agree 	with 	it, 	and 	turned 	it 	in.
She 	subsequently discussed 	the 	matter 	with 	the 	District payroll
clerk, 	but was 	unable 	to 	satisfactorily 	resolve 	the dispute.
She 	then 	contacted 	a CSEA 	grievance 	representative 	who 	advised
her 	to 	attempt 	to 	resolve 	the matter 	informally 	with 	her
immediate 	supervisor. 	Liccardo 	sent 	a memo 	to her 	supervisor,
Jan Barkett, 	on March 	5, 	1981. 	That memo outlined 	the
discrepancy 	in 	sick 	leave 	and 	made 	reference 	to 	the 	language 	of
the 	collective 	negotiating 	agreement 	between CSEA 	and 	the
District 	which 	supported 	Liccardo's 	computations. 	Liccardo
also 	indicated 	that 	she 	understood 	that 	if 	she 	was 	unable 	to
resolve 	the 	problem with Barkett 	she 	could 	file 	a grievance
within five 	to 	ten days.
On March 17, 	1981, Barkett wrote a memo to Bob Crank, 	chief
of 	the District 	business 	office, 	informing 	him of 	Liccardo's
claim and 	requesting 	answers 	to 	several 	questions 	regarding
it. 	Barkett 	concluded her 	memo 	as 	follows:
A 	response 	as 	quickly as 	possible 	will 	be
appreciated 	so 	that 	I 	will 	respond 	within
timelines 	stated 	in 	collective 	bargaining
agreement.
The 	import 	of 	this memo 	is 	that Barkett was 	referring 	to 	the
timelines 	in 	the 	contract 	governing grievances, 	and 	that 	she
W	
3

understood 	that 	a 	grievance 	had 	been 	initiated 	by Liccardo. 	In
addition 	to 	sending 	the 	above-referenced memo 	to Crank, 	Barkett
contacted 	Deputy Superintendent Thomas Hodges, 	her 	supervisor,
for 	advice 	as 	to 	how 	to 	handle Liccardo's sick 	leave 	problem.
Hodges 	suggested 	that Liccardo 	be 	allowed 	to 	examine 	the
District's 	sick 	leave 	records. 	Barkett 	told Liccardo of
Hodges' 	suggestion, 	and gave 	her 	the option of 	examining 	the
records with Mr. 	Crank. 	On March 	25, 	1981, Liccardo was
advised 	that 	a 	meeting would 	be 	held 	that 	day 	at 	which Liccardo
could 	discuss 	the 	matter 	with Barkett 	and 	Crank. 	On 	receiving
this 	information, 	Liccardo called CSEA Grievance Chairperson
Barbara Dodsworth 	and 	asked 	her 	to 	be present 	at 	the 	meeting 	on
her 	behalf. 	Dodsworth 	then called Hodges 	and 	informed 	him 	that
Liccardo 	had 	requested 	that 	Dodsworth 	represent 	her 	at 	the
meeting. 	Hodges 	included Crank 	in 	the 	conversation 	as 	he 	was
present 	in Hodges' 	office when 	the 	call came 	in, 	and 	a
three-way 	telephone 	conversation 	ensued. 	Hodges 	declined 	the
CSEA 	representative permission 	to 	attend 	the 	meeting, 	and
stated 	that 	if 	Liccardo 	did 	not 	want 	to meet 	without
representation 	she 	could 	cancel 	the 	meeting.
Dodsworth 	informed Liccardo 	that 	her 	request 	for
representation 	at 	the 	meeting 	had 	been 	denied 	by 	the 	District.
Liccardo met 	with Crank 	as 	scheduled, 	without 	representation.
She 	testified 	that 	she 	understood 	the 	meeting 	to 	be part 	of 	the
informal 	level 	of 	the 	contractual 	grievance procedure.
4

DISCUSSION
The District excepted on 	three 	grounds: 	1) 	That 	the
meeting 	at 	issue 	herein was 	not 	a part 	of 	the 	contractual
grievance procedure; 	2) 	that 	the 	right 	to union representation
does 	not 	extend 	beyond 	grievance 	handling 	and 	pre-disciplinary
investigatory interviews; 	and 	3) 	that, 	even 	if Liccardo had a
right 	to 	union 	representation 	under 	these 	circumstances, 	she
waived 	that 	right 	by 	failing 	to personally 	transmit 	her 	request
for 	union 	representation 	to 	the District.
As 	to 	the District's 	first exception, 	we 	note 	the 	following:
Among 	the purposes of EERA, 	as 	stated 	in section 3540, 	is
. . . 	to promote 	the 	improvement 	of
personnel 	management 	and 	employer-employee
relations 	within 	the 	public 	school 	systems
. . . 	by 	providing 	a 	uniform 	basis 	for
recognizing 	the 	right 	of 	public 	school
employees 	to 	join organizations 	of 	their 	own
choice, 	to be 	represented 	by such
organizations 	in 	their 	professional 	and
employment 	relationships 	with 	public 	school
employers 	. . . . 	[Emphasis 	added.]
With 	respect 	to employee 	rights, 	section 	3543 	provides 	that:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose of
representation on 	all matters 	of
employer-employee relations. 	. 	. 	.
[Emphasis 	added.]
And, 	regarding employee organizations' 	rights, 	subsection
3543.1(a) 	provides that:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	. 	. 	. 	[Emphasis added-]
1
55

We 	affirm 	the ALJ's 	finding 	that 	the meeting 	at 	issue
herein was 	prefatory 	to 	the 	formal 	stages 	of 	the 	contractual
grievance procedure 	and 	was 	hence 	part of 	an 	attempt 	by
employee 	Liccardo 	to 	avail 	herself 	of 	contractual grievance
rights.
This 	Board 	has 	expressly 	held 	that 	" . . . 	section 	3543.1 (a)
confers 	on 	an 	employee 	organization 	the 	right 	to 	represent 	its
member 	in a grievance proceeding 	. 	. 	. 	." 	Mount Diablo Unified
School District, 	et al. 	(12/30/77) 	EERB Decision No. 	44,2 at
p. 	9. 	See 	also Rio Hondo Community College District 	(12/28/82)
PERB Decision No. 	272. 	PERB has 	further 	held, 	subsequent 	to
the ALJ's decision 	in 	the 	instant 	case, 	that 	section 	3543's
guarantee to employees of 	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" 	grants 	to 	employees 	the 	right 	to
be 	represented 	by 	their 	employee 	organization 	in grievance
proceedings. 	Rio Hondo, 	supra.
For 	the 	reasons 	set 	forth 	above, 	we 	affirm 	the 	conclusion
of 	the ALJ 	that CSEA had 	a 	right 	to 	represent 	its member 	and
that 	Liccardo 	had 	a right 	to 	be 	represented 	by CSEA 	in 	the
grievance procedure 	at 	issue 	herein. 	Because 	we 	find 	that 	the
2Prior 	to January 1, 	1978, 	PERB was 	known 	as 	the
Educational Employment Relations Board 	(EERB).
66

instant 	case 	involved 	grievance 	handling, 	we 	need 	not 	decide
the 	full 	scope 	of 	the 	right 	to 	representation 	under 	EERA, 	and
thus 	need 	not 	address 	the District's 	second 	exception.
The 	District's 	only 	remaining 	relevant 	exception 	is 	that
even 	if 	CSEA and Liccardo 	had 	such 	representational 	rights,
they 	were 	waived 	by 	Liccardo's 	failure 	to 	personally 	request
CSEA 	representation 	and 	by 	her 	participation 	in 	the 	grievance
meeting 	without 	such 	representation. 	The 	District 	bases 	its
argument 	in 	this 	regard on 	two National Labor 	Relations Board
(NLRB) 	cases, 	Appalachian Power 	Company 	(1980) 	253 NLRB 931,
and Lennox Industries, 	Inc. 	(1979) 	244 NLR 	607.
In Lennox Industries, 	Inc., 	supra, 	the NLRB held that 	an
employee 	request 	for 	union 	representation 	was 	not 	effective 	to
trigger 	a right 	to 	union 	representation 	under 	Weingarten 	v.
U.S. 	(1975) 	420 U.S. 	251 	[88 LRRM 2689], 	because the request
was 	directed 	to 	a manager 	other 	than 	the 	one 	who 	called 	the
pre-disciplinary meeting 	and 	was 	not 	received 	by 	the manager
involved. 	Because 	no 	effective 	request 	for 	representation 	was
made, 	the NLRB held 	that 	no 	denial of 	employee 	rights 	occurred.
In Appalachian Power 	Company, 	supra, 	an employee was
directed 	to 	report 	to a supervisor's office for 	a
pre-disciplinary 	interview. 	The 	employee 	did not 	direct 	a
request 	for 	representation 	to management. 	Rather, 	he called
the 	union 	representative 	on 	the 	shop paging 	system 	and 	asked
him 	to 	come 	to 	the meeting 	and 	represent 	him. 	The 	employee met
-
7

the 	supervisor 	in 	the 	hallway on 	the 	way 	to 	the 	supervisor's
office, 	and 	the 	pre-disciplinary discussion 	began. 	Several
minutes later, 	the 	steward 	arrived 	in 	the 	area. 	Another
supervisor, 	who was 	not 	at 	that 	time 	directly 	involved 	in 	the
discussion, intercepted 	the 	steward 	and 	asked 	him 	why 	he 	was
there. 	Upon 	learning 	that 	the 	steward 	was 	there 	to 	represent
the 	employee, 	he 	told 	the 	steward 	to 	return to his work
station. 	The 	supervisor 	who 	called 	and 	was 	involved 	in 	the
meeting 	never 	knew 	of 	the 	employee's 	desire 	for
representation. 	The 	administrative 	law judge 	held, 	with NLRB
approval, 	that 	no 	effective 	request 	for 	representation was made
by 	the 	employee and, 	therefore, 	that 	no 	representational right
was 	denied.
Both 	cases 	are 	clearly distinguishable 	from 	the 	instant
case 	on 	their 	facts. 	In 	both Lennox 	Industries 	and Appalachian
Power, 	the 	aggrieved 	employee 	failed 	to direct 	the 	request 	for
representation 	to 	the 	supervisor 	who 	called 	and 	was 	conducting
the meeting. 	Because 	no 	request was 	directed 	to 	the
appropriate 	supervisor 	by 	the 	employee 	or 	his 	union
representative, 	the NLRB held 	that 	no effective 	request 	for
union 	representation 	was 	made 	and 	thus 	that 	no 	denial 	took
place. 	In the 	instant case, 	Liccardo's 	request was 	clearly
transmitted 	directly 	to 	the 	supervisors 	who called 	and 	met 	with
Liccardo. 	Therefore, 	an effective 	request 	for 	representation
was made 	by her.
88

In dicta, 	the 	administrative 	law judge 	in Appalachian Power
also 	indicated 	that 	the 	request 	for 	union 	representation must
be 	initiated 	by 	the 	employee, 	and 	not 	raised 	by 	the 	union
representative. 	This 	is 	so, 	stated 	the 	administrative 	law
judge, 	because under Weingarten, 	supra, 	the employee 	involved
has 	the 	right 	to determine whether 	he/she 	wants 	to continue 	the
interview without 	representation or 	to 	refuse 	to 	participate.
The 	administrative 	law judge 	reasoned 	that, 	when 	the 	employee
therein 	did 	not 	protest 	the 	continuation 	of 	the 	interview 	after
he 	saw his 	representative 	being 	ejected 	from 	the 	hallway, 	he
may 	have 	simply 	been 	indicating 	that 	he 	no 	longer 	saw 	the 	need
for 	representation.
The 	implication of 	such 	dicta 	is 	that 	because 	the
Weingarten 	right 	to 	union 	representation may 	be 	waived 	by 	the
employee, 	a 	request 	initiated 	solely by 	the 	union
representative 	might 	serve 	to 	deprive 	the 	employee 	of 	his 	right
to choose. 	In the 	instant 	case, 	unlike 	the 	situation
contemplated 	by 	the 	dicta 	in Appalachian Power, 	the 	request 	for
union 	representation 	was 	initiated 	by Liccardo 	and 	conveyed 	by
her 	CSEA 	representative 	to 	the 	appropriate District 	supervisor,
who was 	informed 	by 	the 	CSEA 	representative 	that Liccardo 	had
requested her presence at 	the meeting. 	Where, 	as here, 	the
employee 	organization 	representative 	makes 	the 	request 	on
behalf 	of 	the 	employee 	and makes 	it clear 	that 	the 	employee
initiated 	the 	request 	being 	conveyed, 	the Appalachian Power
99

dicta 	does 	not 	conflict 	with 	a 	finding 	that 	an 	effective
employee 	request 	for 	representation 	has 	been made.
Because 	we 	find 	that 	an 	employee 	request 	for
representation, 	directed 	to 	the 	appropriate 	supervisory
personnel of 	the District, 	was made 	herein, 	and 	because 	that
request was 	denied, 	we 	find 	the 	situation distinguishable 	from
Appalachian 	Power 	and 	Lennox 	Industries.
Because 	the 	employee 	in Appalachian Power 	was 	never 	told
that 	an 	earlier 	request 	for 	representation 	had 	been 	denied, 	the
NLRB 	opined 	that 	he 	had 	no 	basis 	for 	a 	belief 	that 	a 	renewed
request 	would 	have 	been denied, 	and 	thus 	found 	that 	it 	was
reasonable 	to 	infer 	that 	the 	employee's 	acquiescence 	in 	the
meeting 	constituted 	a 	deliberate 	waiver 	of 	the 	right 	to
representation.
Unlike 	the 	employee 	in Appalachian Power, 	Liccardo made 	an
effective 	request 	for 	representation 	and 	was 	told 	that 	it 	was
denied. 	Under 	such 	circumstances 	we 	find 	that 	her 	failure 	to
renew 	her 	request 	for 	representation was 	reasonable. 	She 	had
no 	reason 	to 	believe 	that 	a 	second 	request 	would 	be 	granted
after 	the 	first one 	had 	been denied. 	Rather, 	she 	reasonably
believed 	that 	it 	would have 	been 	futile 	to 	renew 	the 	request
for 	representation. 	Further, 	she 	had a 	reasonable 	interest 	in
moving 	toward 	an 	expeditious 	and 	effective 	resolution 	of 	her
grievance 	at 	the 	earliest possible 	time. 	It would 	thus 	be
neither 	fair 	nor 	sensible 	to 	regard 	her 	failure 	to 	renew 	this
request 	as 	a waiver 	of 	her 	right 	to 	representation.
10

For 	the 	reasons 	set 	forth 	above, 	we 	find 	that 	the District
denied CSEA 	its 	right 	to 	represent 	its members, 	thus 	violating
subsection 	3543.5(b), 	and 	denied 	to 	employee Liccardo her 	right
to 	representation in violation of 	subsection 	3543.5(a).
REMEDY
The District did 	not 	except 	to 	the 	remedy 	recommended 	by
the ALJ. 	Finding 	that 	proposed 	remedy 	to 	be 	an 	appropriate
application of 	the 	Board's 	remedial 	authority 	under 	subsection
3541.5(c),3 we 	shall 	adopt 	it 	as 	the 	remedy of 	the Board.
ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law 	and 	the 	entire 	record of 	this 	case, 	and 	pursuant 	to
Government Code subsection 	3541.5(c), 	it 	is 	hereby ORDERED that
the Fremont 	Union High School District, 	board of 	trustees,
superintendent 	and 	their 	respective 	agents 	shall:
A. 	CEASE 	AND DESIST 	FROM:
1. 	Denying 	employee 	Kathleen 	Liccardo 	her 	right 	to
be 	represented 	by 	her 	exclusive 	representative 	at 	a 	grievance
meeting.
3subsection 	3541.5(c) 	provides 	as 	follows:
The 	board 	shall 	have 	the 	power 	to 	issue 	a
decision 	and 	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
back 	pay, 	as 	will effectuate 	the policies 	of
this 	chapter.
11

2. 	Denying 	California School Employees Association
and 	its Fremont 	Chapter 	No. 	237 	the 	right 	to represent 	its
member 	at 	a 	grievance 	meeting
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE EERA:
1. 	Within 	thirty 	(30) 	workdays 	after 	the 	date 	of
service of 	this Decision, 	post 	at all 	work 	locations 	where
notices 	to employees 	customarily are posted, 	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 ensure 	that 	the Notices 	are 	not 	altered,
reduced 	in 	size, 	defaced 	or 	covered with 	any other material.
2. 	Within 	forty-five 	(45) 	consecutive workdays 	from
the 	service 	of 	this Decision, 	notify 	the San Francisco 	regional
director 	of 	the 	Public Employment Relations Board 	in writing 	of
what 	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 	party 	herein.
Chairperson 	Gluck 	and 	Member 	Morgenstern 	join 	in 	this 	Decision.
12

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 No. 	SF-CE-577
California 	School Employees Association 	and 	its 	Fremont 	Chapter
No. 	237 v. 	Fremont Union High School District, 	in which all
parties 	had 	the 	right 	to participate, 	it 	has been found 	that
the 	Fremont 	High School District 	violated 	the Educational
Employment 	Relations Act, 	Government Code 	subsections 	3543.5(a)
and 	(b) 	by 	denying 	to 	employee 	Kathleen Liccardo 	and 	employee
organization CSEA 	their 	representational 	rights 	under EERA.
As 	a 	result of 	this 	conduct, 	we 	have 	been ordered 	to post
this Notice 	and 	we 	will 	abide 	by 	the 	following:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Denying 	employee 	Kathleen Liccardo 	her 	right 	to
be 	represented 	by 	her 	exclusive 	representative 	at 	a grievance
meeting.
2. 	Denying 	California School Employees Association
and 	its Fremont Chapter No. 	237 	the 	right 	to represent 	its
member 	at 	a 	grievance meeting.
FREMONT 	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 ALTERED, 	REDUCED 	IN SIZE, 	DEFACED OR COVERED WITH ANY OTHER
MATERIAL.