Placer Hills Union High School District (PERB 0377E)

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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	PLACER HILLS
CHAPTER 636,
Charging 	Party,
v.
PLACER HILLS 	UNION 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-453
PERB Decision No. 	377
February 14, 	1984
Appearances; 	E. 	Luis Saenz, 	Attorney for California School
Employees Association 	and 	its Placer 	Hills 	Chapter 	636;
Douglas A. 	Lewis, 	Attorney for Placer Hills Union School
District.
Before Jaeger, 	Morgenstern and Burt, Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before the Public
Employment Relations Board 	(PERB 	or Board) 	on 	exceptions 	filed
by 	both 	the 	California School Employees Association 	and 	its
Placer Hills Chapter 	636 	(CSEA) 	and 	by 	the Placer Hills Union
School District 	(District).
In 	the proposed 	decision, 	the 	administrative 	law 	judge
(ALJ) 	concluded 	that 	the District 	had 	not 	violated provisions
of 	the Educational Employment Relations Act 	(EERA or Act) 	by
failing 	to permit an employee, 	Eric Steele, 	to return to work
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when, 	after 	injuring his wrist, 	his physician restricted him to
light 	duty.1 The ALJ 	also 	held 	that, 	while 	the District 	did
not 	act 	unlawfully 	in 	insisting 	that Steele 	provide 	written
acknowledgment of documents, 	the District 	impermissibly
unilaterally 	adopted 	the 	written 	acknowledgment 	rule.
The Board 	has 	carefully 	reviewed 	the 	entire 	record 	in 	light
of 	the parties' exceptions. 	Consistent 	with 	the discussion
below, 	we 	affirm 	the ALJ's proposed 	decision 	in part 	and
reverse 	it in part.
FINDINGS 	OF 	FACT
In 	late January or 	early February 1980, 	Eric Steele, 	then
employed 	by 	the District 	as 	a utility groundsperson, 	injured
his 	shoulder 	and 	back 	on 	the 	job. 	He 	suffered 	torn 	ligaments
in his 	right 	shoulder 	and 	strained muscles 	in 	his 	lower 	back.
As 	a 	result, 	he was placed on medical 	leave 	for 	four 	and
one-half months. 	His physician, 	Dr. 	Gordon Lewis, 	authorized
Steele 	to return to work on May 12, 	1980. 	The 	authorization
stated 	"May 	return 	to 	work 	. . . 	no 	heavy 	overhead 	lifting 	or
any 	activity 	not 	tolerated." 	Steele 	tendered 	this 	release 	from
Dr. 	Lewis to Ed Vanderpool, 	his 	immediate supervisor.
1EERA 	is 	codified 	at Government 	Code 	section 	3540
et 	seq. 	Unless otherwise 	indicated, 	all 	references 	are 	to the
Government Code.
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After 	consulting with others, 	Vanderpool 	told Steele 	that
the 	release 	was 	unacceptable 	because 	it 	was 	too 	vague.2
Dr. 	Lewis 	issued a second release on May 19, 	1980, 	which
provided, 	"May drive bus, 	riding mowers, 	and operate weed
eater. 	He may 	not 	lift or 	operate equipment above 	shoulder
level." 	This 	release was 	accepted 	by 	the District.
Steele 	returned 	to work. 	He 	testified 	that he 	could
perform most of 	his 	duties 	except 	for 	the 	"over-the-shoulder
working part." 	In July 	1980, 	Steele was promoted 	from utility
groundsperson 	to 	maintenance 	person.3
2The 	parties' 	negotiated 	agreement 	contains 	the 	following
with 	respect 	to 	verification of 	sick 	leave:
Verification of 	illness 	or 	injury may 	be
required 	from a 	licensed 	physician or
practitioner 	acceptable 	to the Board; 	a
medical 	release 	to 	return 	to 	work may 	also
be 	required.
3The 	job 	description of 	the 	maintenance 	person provided
as follows:
Repairs 	and 	performs 	general 	maintenance
work on plumbing 	systems; 	cleans out drains
and 	obstructions 	in water 	and 	sewer 	systems;
services fans, 	compressors 	and pumps by
oiling, 	greasing, 	packing and cleaning;
replaces 	broken glass 	in windows 	and doors;
mixes 	concrete, 	places posts 	and 	secures
cyclone fence, etc.; 	repairs doors, locks,
hinges 	and closures; 	does 	electrical 	repair
work; 	cleans 	and prepares 	surfaces for
painting; 	operates power 	and hand 	tools;
cleans 	and maintains 	trade 	tools; 	repairs
furniture 	and 	does 	other 	carpentry work;
operates motor 	vehicles 	as 	required. 	Care
and maintenance 	on 	stationary 	equipment 	such
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as playground equipment, 	heating 	and 	cooling
equipment, 	fire alarm equipment, 	clock 	and
bells, 	etc. 	Performs other duties as
required.
On February 25, 	1981, 	Steele testified as a witness, 	under
subpoena, 	at 	a PERB-conducted 	formal hearing concerning 	an
alleged 	discriminatory 	discharge 	of 	another 	District 	employee,
Robert Ledbetter. 	In that case, 	CSEA alleged, 	inter 	alia, 	that
Ledbetter 	was 	not 	retained 	by 	the District 	because of 	his 	union
activity. 	At 	that 	hearing, 	Steele's 	testimony was offered 	to
establish 	that 	the 	promotions 	he 	received 	coincided 	with 	his
periods 	of 	nonmembership 	in CSEA. 	He 	recalled 	one 	specific
occasion, 	two weeks before the Ledbetter 	hearing, 	when
Fred Machado, 	District Director 	of Transportation, 	told him
that 	the 	"union 	stuff" 	was going 	to get Steele 	in 	trouble
around 	the District. 	Although Machado also 	testified 	at 	the
hearing 	and 	denied making 	the 	statement, 	the ALJ 	resolved 	the
credibility 	determination 	in 	favor 	of 	Steele.4
On June 	27, 	1981, 	after 	the ALJ's proposed decision in the
Ledbetter 	case 	issued, 	Steele 	suffered 	a 	fractured wrist 	bone
during 	nonwork 	hours 	while playing 	Softball. 	Steele 	went 	to
4Placer 	Hills Union School District, 	Unfair Practice Case
No. 	S-CE-384, 	Proposed Hearing Officer's Decision 	(6/4/81). 	On
November 	30, 	1982, 	PERB 	issued 	its own decision 	(PERB Decision
No. 	262) 	affirming 	the 	facts 	as 	found by the ALJ. 	The Board
upheld 	the ALJ's 	conclusion 	that 	the 	District 	had 	not
unilaterally 	altered 	the 	layoff 	policy. 	The Board 	did 	not
review 	the ALJ's 	dismissal 	of 	the 	discriminatory 	discharge
allegation, 	no exceptions 	having 	been 	taken 	to 	that
determination.
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the Grass Valley Hospital emergency 	room where, 	after 	X-rays,
his 	injury was 	diagnosed 	as 	a hairline 	fracture of 	the
navicular 	bone. 	The 	attending 	physician placed 	a plaster 	cast
on 	his 	lower 	right 	arm and 	hand, 	enclosing 	the 	thumb 	but 	not
the 	fingers. 	On June 	29, 	Steele went 	to his personal
physician, 	Dr. 	Lewis, 	who replaced 	the cast with a lighter
fiberglass 	cast which 	covered 	the 	same 	area of 	his 	arm. 	Steele
testified 	that 	Dr. 	Lewis 	asked 	him about 	his 	shoulder 	injury,
and Steele 	said 	"it 	hadn't 	changed 	at 	all, 	it was 	just 	the
same. 	It was 	still 	a little 	tender." 	He did 	not complain of
any 	injury 	to his 	shoulder 	which 	was 	different 	than 	it 	had 	been
for 	the past 	six months.
Upon 	request, 	Dr. 	Lewis gave Steele 	a release dated June 29
which 	stated 	that Steele 	could 	return 	to work 	that 	day. 	The
words 	"light duty" 	were 	written on 	the 	release. 	During 	that
visit with Dr. 	Lewis, 	Steele did 	not describe or provide him
with 	a copy of 	his 	job duties 	as 	a maintenance person.
Dr. 	Lewis merely 	limited Steele 	to 	light duty. 	They did 	not
discuss 	any 	specific 	limitations.
Steele presented 	the 	release 	to Fred Machado, 	serving 	as
Steele's 	supervisor 	in 	the 	absence 	of Vanderpool who was 	on
vacation 	that week. 	According 	to Steele, 	Machado said 	that he
did 	not 	think 	Steele 	could 	work 	with 	the 	cast 	on 	and 	that 	he
would 	have 	to get 	the opinion of Vanderpool. 	Machado called
Vanderpool 	and 	asked 	him 	if 	there 	were 	any 	kind 	of 	light duty
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jobs. 	Vanderpool 	testified 	that 	the 	only 	thing 	he 	could 	think
of 	was 	tiling 	floors. 	Vanderpool advised Machado 	as 	follows:
I 	told 	him 	to 	tell Eric 	to get 	a 	leave 	slip
or, 	you 	know, 	just 	— 	I 	can't 	remember 	what
I 	said, 	to tell you the 	truth. 	I 	just told
Mr. 	Machado 	that 	there 	wasn't anything 	for
him to do. 	I mean, 	it was 	— 	we might 	as
well just, 	you know, 	let him send him home.
Steele 	worked 	for 	five 	hours 	that morning. 	At
approximately 	11:30, 	Machado 	told Steele 	that 	there was 	"no
such 	thing 	as 	light 	duty," 	and 	that Steele 	would 	have 	to go
home. 	Steele 	said he asked Machado why 	he 	could 	not work 	light
duty as 	he 	had 	for 	the previous 	13 months 	because of 	his 	back
injury. 	His response, 	according to Steele, 	was, 	"All I can
tell you 	at 	this point 	is 	there's 	no 	such 	thing 	as 	light duty
at Placer 	Hills School," 	and 	that 	he 	could 	"no 	longer 	work 	here
with 	any 	type 	of 	work 	restriction whatsoever."
That morning, 	Steele 	also saw George Dunham, 	District
Superintendent. 	Steele 	told Dunham about 	his 	broken wrist.
Dunham 	testified 	that 	he 	told Steele 	it was 	going 	to be
difficult for him to work, 	and Steele 	replied, 	"Yeah, 	there's
no light duty, 	I can't work." 	This conversation was 	to have
taken place 	between 	7 	and 	8 	o'clock 	in 	the morning.
Following 	his 	one-week 	vacation, 	Vanderpool 	returned 	to
work 	for 	a 	two-week 	period. 	During 	that 	time, 	Steele
testified, 	he 	received 	a phone 	call 	from Vanderpool 	who 	asked
how he was doing. 	Vanderpool stated, 	according 	to Steele,
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"Well, 	we 	have 	tile 	that 	can be 	laid 	and different 	things 	that
can be done." 	However, 	Vanderpool asked Steele 	about his
doctor's 	releases 	and, 	when Steele 	told Vanderpool 	that 	they
were 	the 	same, 	Vanderpool 	told 	him he would 	have 	to have 	the
restrictions 	cleared 	up 	before 	he 	came 	back.5
The 	decision 	to 	release Steele 	from work 	was made 	by
Machado 	and Vanderpool. 	Vanderpool 	testified 	he would 	have
tried 	to 	accommodate Steele, 	but 	there 	were 	certain 	jobs which
had 	to be 	done 	which 	he 	believed Steele 	to be 	incapable 	of
performing 	and 	that 	he 	was 	concerned 	about Steele's health.
On July 16, 	Steele again visited Dr. 	Lewis. 	At 	this visit,
Dr. 	Lewis examined Steele's 	shoulder 	and collar 	joint.
According 	to Steele, 	Dr. 	Lewis did nothing with 	regard 	to his
wrist. 	Based 	on Steele's job description, 	which 	had been
provided 	to Dr. 	Lewis by the District, 	Steele 	said he discussed
with Dr. 	Lewis 	the 	various 	components of 	his 	job as maintenance
person. 	Dr. 	Lewis 	then wrote 	a release 	that 	said Steele could
return 	to work 	and perform 	"light 	duty." 	Although 	he 	saw 	the
words 	"light duty" 	on 	the 	release 	and was 	aware 	that 	the prior
light 	duty 	release 	had 	been 	unacceptable, 	Steele 	said he 	did
5Vanderpool 	did 	not 	testify 	as 	to 	any 	telephone
conversation. 	He did 	testify, 	however, 	that Steele came 	to
work on 	one 	occasion during 	this 	time period 	and 	that 	he 	told
him 	they 	could 	not 	have 	a maintenance 	person working 	with 	one
hand. 	He 	told Steele 	that perhaps 	it would 	be 	a good
opportunity 	for 	him 	to 	recover 	from both 	his 	shoulder 	and 	wrist
injuries.
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not 	ask Dr. 	Lewis 	to be more 	specific because Steele did not
think 	the District would 	accept 	the 	release.
Steele 	testified 	that, 	when he 	returned 	to 	the District and
showed 	the 	release 	to Machado, 	Machado 	said, 	"You cannot work
here with 	any 	type of 	work 	restrictions whatsoever. 	They 	all
have 	to 	be 	cleared 	up before 	you 	are 	allowed 	to 	return 	to
work." 	Steele 	requested 	that Machado put 	this 	statement 	in
writing 	because, 	at 	the Ledbetter 	hearing, 	Machado had denied
having 	a 	conversation with Steele.
On or 	about July 26, 	the District hired John Jones, 	a
former 	District maintenance person, 	as 	a substitute 	for
Steele. 	He was 	employed 	until 	the 	end of August. 	Vanderpool
felt 	a substitute was 	necessary because 	he 	could 	not 	use 	other
employees 	to perform the 	duties 	for 	which Steele was
responsible 	since maintenance 	duties 	were 	outside 	the 	job
description of custodians. 	During 	the 	summer, 	when 	students
were 	not 	in 	attendance, 	the maintenance department 	typically
did 	a lot of 	classroom work. 	Generally, 	maintenance 	employees
cleaned 	air 	conditioning 	units 	located 	on 	classroom 	roofs 	and
did 	outside 	work 	such 	as 	trenching.
The District 	submitted 	as 	evidence 	a 	series 	of 	work 	orders
describing 	the 	various 	jobs 	that were 	in 	fact done 	by 	the
maintenance 	department 	during 	the 	summer 	following 	Steele's
wrist 	injury. 	Most were done by Jones, 	Steele's 	substitute.
Some of 	the 	jobs were as 	follows: 	placement of shims 	in window
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latches, 	requiring 	use of a hammer, 	punch 	and electrical drill;
replacing 	a vacuum breaker 	on 	the 	sprinkler 	system; 	checking
ballasts 	in classroom lights, 	requiring 	an employee 	to climb 	a
ladder 	and 	work 	overhead 	with 	ballasts 	weighing 	about
12 	pounds; 	moving 	an old 	stove weighing about 100 pounds;
removing 	floor 	tile with 	a hammer 	and 	chisel 	and 	cementing 	in
new 	tile; 	drilling 	holes 	in 	storeroom door 	bolts with an
electrical drill; 	using 	an electrical 	jackhammer 	to chip a
one-foot wide, 	six-inch 	deep channel about 	seven 	to eight 	feet
long 	in a cement 	floor 	to 	install a 	floor 	plug; 	bending 	an
electrical 	conduit; 	loading 	and 	unloading 	50-pound 	bags of
cement 	onto 	and 	off 	a 	truck 	and 	into 	a wheelbarrow 	and
hand-mixing 	the 	cement 	to 	fill 	the 	channel; 	tipping 	an upright
piano 	to 	repair 	a wheel; 	and climbing 	a 	ladder 	to 	repair 	or 	set
several 	classroom clocks.
Vanderpool 	testified 	that 	he 	felt most 	of 	these 	jobs
required 	the 	full use of both hands. 	However, 	in Steele's
opinion, 	his 	wrist 	injury did not 	impair 	his 	ability 	to do 	the
normal summer maintenance duties, 	one of which was 	unloading
and 	stacking 	cartons of paper, 	each weighing 40 	to 100 pounds.
Steele 	thought that his 	assignment 	for 	the week of June 	29, 	if
he 	had 	been permitted 	to work, 	would 	have 	been 	to 	irrigate 	the
field 	at Lemoore School 	and, 	in general, 	to perform such jobs
as 	tightening 	screws on doors 	and 	checking 	hinges. 	Steele 	did
not 	recall what 	his 	actual 	work 	orders 	were 	on 	the morning 	of
June 29.
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On July 	27, 	after Machado rejected Dr. 	Lewis1 second 	"light
duty" 	release, 	Steele 	filed 	a grievance which 	stated:
The District has exceeded 	its 	rights,
violated 	the 	contract 	and my 	rights 	by 	the
following:
On June 29, 	1981, 	I 	reported 	to work with my
arm in 	a 	light 	cast 	and proceeded 	to work 	at
my 	regular 	duties. 	At 	approximately 	11:30
am, 	I 	was 	ordered 	to leave work 	and 	then was
unilaterally placed 	on 	sick 	leave 	although 	I
had 	a 	doctor's 	release 	which 	allowed me 	to
return to work. 	On July 20, 	1981, 	I
returned 	to 	work 	after 	seeing 	my 	doctor
again 	and 	obtaining 	another 	medical 	release
to return to work. 	Again, 	I was sent home
and 	again 	forced 	to 	use my 	sick 	leave 	and
vacation 	time 	to maintain my pay 	status.
In accordance with the contract, 	I had
obtained 	a medical 	twice 	to 	return 	to work
and 	twice 	I 	was 	denied 	this 	right 	to 	return
to work. 	Such 	refusal 	to allow me 	to 	return
to work 	is 	discriminatory 	and 	denies 	me
rights 	granted 	by 	law 	and 	the 	contract.
As 	a 	remedy, 	Steele 	requested 	restoration of 	all money,
benefits, 	leave 	and vacation accounts. 	This grievance was
first 	denied 	by Vanderpool 	on August 	7.
On August 	11, 	Steele again visited Dr. 	Lewis. 	Dr. 	Lewis
wrote 	a 	release 	that 	stated Steele 	should 	do 	"No 	over 	shoulder
lifting 	greater 	than 75 	pounds."
Steele 	said his visit 	to Dr. 	Lewis on August 	11 was 	at 	the
request of 	the 	insurance 	carrier 	who wanted 	him 	to 	have 	his
back 	rechecked 	because 	Steele 	had 	informed 	the 	carrier 	that 	all
releases 	would 	have 	to be 	cleared before 	returning 	to work. 	He
did not 	ask Dr. 	Lewis 	about 	a release 	for 	his wrist. 	When
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Steele 	gave 	this 	release 	to Vanderpool on August 	12, 	Vanderpool
said 	the 	shoulder 	limitation 	looked 	good, 	but 	he 	could 	not
return 	to work 	because of 	his 	fractured wrist.
On August 	11, 	Steele 	appealed 	the grievance 	to 	the 	second
step and, 	on August 18, 	1981, 	a meeting was held in
Superintendent Dunham's 	office. 	In attendance 	were Dunham,
Clifford Massey, 	CSEA field 	representative, 	and Dale Roberts,
then CSEA president. 	The most 	recent 	release of August 	11 was
discussed. 	During 	that meeting, 	Massey expressed his 	belief
that 	the 	release was 	for 	both 	the 	shoulder 	and 	the wrist.
Because 	there was 	some disagreement on 	this point, 	Dunham
decided 	to contact Dr. 	Lewis 	to 	ascertain 	the 	extent of 	the
release. 	Thereafter, 	Dunham advised Roberts 	that he was going
to contact Dr. 	Lewis 	to determine whether Dr. 	Lewis was
"releasing Mr. 	Steele 	for 	his 	shoulder 	or 	his 	wrist or 	both."
Dunham was 	unable 	to contact Dr. 	Lewis 	until August 25,
when he was 	told 	by Dr. 	Lewis 	that 	the 	form referred only 	to
Steele's 	shoulder 	and 	that 	he wanted 	to give Steele 	a couple
more 	weeks 	for 	the 	wrist 	injury 	to 	heal before 	he 	would 	be
released 	to perform 	regular 	duties.
After 	his conversation with Dr. 	Lewis, 	Dunham wrote 	to
Steele on August 28:
At our 	conference on August 18, 	1981,
attended by Mr. 	Massey, 	Mr. 	Roberts and
myself, 	it was 	felt some clarification of
Dr. 	Lewis' 	physical 	lifting clearance was 	in
order. 	I 	spoke to Dr. 	Lewis on August 25,
1981 	and 	he 	stated 	the 	75 	pounds 	lifting
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limit was 	for 	your 	shoulder 	and 	not your
wrist. 	He 	informed me 	he wanted 	at 	least
another 	two 	weeks 	healing 	time 	for 	your
wrist.
Mr. 	Massey, 	in our 	telephone conversation
today, August 28, 	1981, 	when informed of
Dr. Lewis' 	explanation, 	said that Dr. 	Lewis'
decision 	solved 	this grievance.
As 	a clarification, 	your 	broken wrist was
and 	is 	the 	reason 	for 	your 	not 	working 	at
this particular 	time. 	Therefore, 	since 	this
is 	not a work 	related 	accident, 	your 	request
for 	restitution of your 	vacation time, 	which
you 	had 	requested be 	deducted 	in order 	to
receive 	a full July paycheck, 	must be
denied.6
Less 	than one week 	later, 	on August 31, 	Steele 	again saw
Dr. 	Lewis. 	Steele 	told Dr. 	Lewis 	that the District wanted a
full 	release 	for 	his wrist 	before 	he 	could 	return 	to work. 	At
this visit, 	his cast was 	removed. 	Dr. 	Lewis gave Steele a 	full
work 	release 	from 	his 	wrist 	injury 	effective September 	1.
Steele 	returned 	to 	work 	the 	following Monday 	and 	the 	release
was 	accepted 	by Vanderpool.
In an effort 	to demonstrate 	that 	the District 	had
discriminated 	against Steele 	because of 	his 	testimony 	at 	the
Ledbetter 	hearing, 	CSEA presented 	evidence 	of 	two other
District employees who, 	unlike Steele, 	were permitted 	to
continue 	to work 	after 	suffering 	injuries.
6Steele 	subsequently 	appealed 	Vanderpool's 	and 	Dunham's
denial of 	his grievance, 	and a 	hearing 	before 	the 	board of
trustees 	was 	requested by Roberts on September 	1, 	1981. 	No
hearing 	was 	scheduled 	or 	occurred.
12

John Thackeray 	was 	employed 	by 	the District 	in June 	1979
until September 	or October 	1980 	as 	a CETA employee. 	During 	his
first four 	or 	five months, 	he worked as 	a carpenter/painter
trainee. 	His primary duties 	were 	brush 	and 	spray painting
classrooms 	and exterior 	walls. 	About 	a month 	and 	a 	half 	after
he 	started his 	employment, 	he 	suffered 	an 	injury 	to his 	thumb
which 	required 	a plaster 	cast 	covering 	his 	thumb 	and 	extending
to his elbow.
Pete Neese 	and Ed Vanderpool were 	his 	supervisors. 	When he
returned 	to work 	after 	his 	accident, 	Neese 	asked him 	if 	there
were 	any work 	restrictions. 	He 	said 	his 	doctor 	had 	not given
any 	such 	instructions. 	Thackeray 	continued 	to do his 	work 	for
the 	six or 	eight weeks during which he wore 	the 	cast. 	Both
Steele 	and 	Thackeray 	are 	right-handed 	and 	suffered 	injuries 	to
their 	right hands.
Fred Machado, 	then leader 	of 	the 	transportation unit, 	cut
his 	knee 	cap with 	a 	chain 	saw approximately 	five 	or 	six 	years
prior 	to 	Steele's 	injury. 	The 	knee 	injury 	required 	13
stitches. 	Machado 	testified 	that 	his 	doctor 	told 	him he 	could
work, 	subject to his own tolerance of pain. 	Machado 	took
himself 	off 	bus 	driving 	duties 	but did his 	other 	work 	such 	as
supervision 	and 	training 	of 	bus drivers, 	paperwork 	and
supervision of 	and 	work 	with 	bus mechanics.
In addition 	to CSEA's 	charge 	regarding 	Steele's 	work
limitation, 	the 	following 	evidence 	was presented 	in conjunction
13

with 	its 	claim 	that 	the District 	harassed Steele 	by 	requiring
him 	to 	attach his 	signature 	to 	all 	documents 	he 	received.
In 	an 	effort 	to 	resolve Steele's grievance 	regarding 	the
work 	releases, 	a meeting was held on September 	15. 	Steele,
Roberts, 	Dunham and Doug Lewis, 	attorney for 	the District, 	were
present. 	One subject discussed at 	that meeting was Dr. 	Lewis'
release 	of August 	11 	regarding 	the 	75-pound 	lifting 	limit.
Dunham 	testified 	that 	he 	said 	the 	release 	was 	acceptable
because 	the District 	did 	not 	have 	anything 	that 	heavy 	to be
lifted. 	Steele disputed 	this 	contention, 	asserting 	that cases
of 	paper 	delivered 	to 	the 	schools 	sometimes 	exceeded 	75
pounds. 	Steele 	insisted 	that 	he 	did 	not make 	any 	statement
about 	having 	acted 	contrary 	to 	his 	doctor's 	orders. 	He
maintained 	that his 	statement was 	that, 	while he 	had 	lifted
over 	75 pounds, 	he 	had 	not 	lifted 	that weight over 	his
shoulders.
Dunham's version of 	the 	conversation was 	different. 	He
testified 	that Steele 	stated 	he 	had 	lifted 	items 	over 	75 	pounds
over 	his 	head. 	Dunham recalled 	asking 	if Steele 	had 	lifted
such 	weights 	since 	his 	return 	to work 	after 	the wrist 	injury,
September 	1, 	and Steele 	said 	that 	he 	had. 	Dunham 	said 	he was
concerned 	about 	the 	doctor's 	limitation 	and 	the District's
liability.
A 	few days 	after 	this 	conference, 	Vanderpool gave Steele 	a
letter 	from Dunham, 	dated September 	16, 	that 	stated:
During 	the 	grievance 	conference 	held
September 15, 	1981 in my office, 	you stated
14

that you 	had 	lifted 	items 	in excess 	of
75 	lbs. 	since 	returning 	to work September 	1,
1981. 	(75 	lbs. 	was a limit specified by
Dr. 	Lewis 	in the written work 	release 	for
your 	previous 	shoulder 	injury.)
You 	are 	specifically 	instructed 	not 	to 	lift
objects of 	75 	lbs. 	or greater over your 	head
without 	assistance 	since 	it 	is 	contrary 	to
your 	best 	health 	interest 	and 	since 	the
District 	could possibly 	be 	held 	liable 	for
any 	subsequent 	injury 	incurred 	by 	you
lifting objects 75 	lbs. 	or 	greater over your
shoulders.
If you continue 	to lift objects 75 	lbs. 	or
greater 	above 	your 	shoulder 	without
assistance 	from another 	employee 	or 	a
mechanical device, 	you may be subject 	to
disciplinary action 	including, 	but 	not
limited 	to, 	dismissal. 	(Emphasis
supplied.)7
On September 	23, 	Vanderpool 	showed Steele 	another 	draft of
the 	letter 	he 	had 	shared 	with Steele 	following 	the meeting 	of
September 	15. 	This one was marked, 	"Revised as per Counsel's
request." 	It was 	the same as 	the 	letter 	just described but 	had
stamped 	under 	the 	typed part 	of 	the 	letter 	the 	following:
NOTICE
The 	foregoing material will be 	entered 	in
your 	personnel 	file 	15 	calendar 	days 	after
the date of 	this Notice.
7In 	response 	to Dunham's 	letter, 	Steele 	filed 	a grievance
on September 	18 	which disputed 	the 	statement 	that Steele 	had
ever 	exceeded 	the 	weight-lifting 	limitation. 	Vanderpool
responded 	to the grievance 	on September 	23, 	stating 	that 	the
letter 	was 	intended 	as 	instructional 	and 	not 	intended 	to harass
or 	intimidate Steele. 	After Vanderpool denied 	the grievance,
it was 	appealed 	to Dunham and 	then 	to 	the 	board 	of 	trustees,
where 	it was 	denied 	as being 	nongrievable.
15

Education Code 	44031 	gives 	an employee 	the
right 	to examine 	any derogatory materials
prior 	to 	its 	being 	placed 	in his 	personnel
file. 	Employee has 	the 	right 	to enter 	and
to 	have 	attached 	to 	any 	such 	derogatory
information his own comments 	thereon. 	If
you wish 	to 	attach 	any written 	comments 	to
the foregoing materials, 	you must do so no
later 	than 15 	calendar 	days 	after 	the date
of 	this 	Notice.8
8Education 	Code 	section 44031 provides:
Personnel 	file 	contents 	and 	inspection.
Materials 	in personnel 	files 	of 	employees
which may 	serve as 	a basis 	for 	affecting 	the
status of 	their 	employment 	are 	to be made
available 	for 	the 	inspection of 	the person
involved.
Such material 	is 	not 	to 	include 	ratings,
reports, 	or 	records which 	(1) 	were obtained
prior 	to 	the 	employment of 	the person
involved, 	(2) 	were prepared by identifiable
examination committee members, 	or 	(3) 	were
obtained 	in 	connection with 	a promotional
examination.
Every employee 	shall have 	the 	right 	to
inspect 	such materials 	upon 	request,
provided 	that 	the 	request 	is made 	at 	a 	time
when 	such person 	is 	not 	actually 	required 	to
render 	services 	to 	the 	employing 	district.
Information of 	a derogatory 	nature, 	except
material mentioned 	in 	the 	second 	paragraph
of 	this section, 	shall not be entered or
filed 	unless 	and 	until 	the 	employee 	is given
notice 	and 	an opportunity 	to 	review 	and
comment 	thereon. 	An employee 	shall have 	the
right 	to enter, 	and have 	attached 	to any
such derogatory statement, 	his own comments
thereon. 	Such 	review shall 	take place
during 	normal business hours, 	and 	the
employee 	shall be 	released 	from duty 	for
this purpose 	without 	salary 	reduction.
16
•

Following 	the 	notice 	was 	a 	line 	for 	the 	date 	and 	signature
of 	the 	employer 	and 	a statement, 	"Receipt of 	a copy of
foregoing material 	and Notice 	is 	hereby 	acknowledged 	on," 	with
lines 	for 	the 	date 	and 	the 	signature of 	the 	employee.
Vanderpool 	asked Steele 	to 	sign 	the 	letter 	dated
September 	16 	which 	included 	the 	above-quoted 	notice. 	Steele
said 	the 	facts 	were 	not 	true 	and 	that 	he 	did 	not 	feel 	he 	should
sign 	it. 	Specifically, 	Steele objected 	to 	the 	implication,
derived 	from the 	word 	"continue" 	in 	the 	fourth paragraph, 	that
he had been 	lifting 	75 pounds 	over 	his 	shoulder. 	Vanderpool
said 	he 	had 	to 	sign 	it, 	and Steele 	said he would 	if 	he 	could
have 	a representative present. 	Vanderpool 	said he 	could 	not,
and Steele 	did 	not 	sign 	it.
On October 	2, 	Vanderpool presented Steele 	with 	a 	letter
from Dunham which 	acknowledged 	receipt 	of 	a 	letter 	Steele 	wrote
in response 	to Dunham's September 	16 	letter. 	Vanderpool
insisted 	that Steele 	sign off 	on 	receipt of 	that 	letter. 	This
letter 	did 	not 	contain 	the 	stamped 	notice 	about 	insertion 	into
the personnel 	file. 	Steele 	said 	that he would 	sign 	if 	he 	could
have 	his 	union 	representative 	present. 	Vanderpool 	then 	read 	to
Steele 	a prepared 	statement 	from a 	card 	which 	stated:
I 	am 	giving 	you 	this 	letter 	— 	(or 	whatever,
that 	you 	are 	handing 	the 	person) 	— 	your
signature 	only 	verifies 	that 	you 	received
the 	letter. 	It 	does 	not mean 	that you 	agree
with 	the contents. 	If you 	refuse 	to sign
the 	receipt of 	this 	letter, 	you will be
insubordinate, 	and will be probably written
up 	for 	this 	insubordination.
17

Steele's 	testimony 	was 	that Vanderpool 	began 	reading 	the
card 	in October 	and 	that, 	when 	it was 	read, 	it was 	read 	so 	fast
that 	the 	only 	thing 	Steele 	heard 	was 	the part 	about
insubordination. 	Vanderpool 	denied Steele's request 	to 	read
the 	card himself. 	Consequently, 	Steele 	refused 	to 	sign the
October 	1, 	1981 	letter. 	On the bottom of 	the 	letter,
Vanderpool wrote, 	"Eric Steele 	refussed 	[sic] 	to sign this copy
on 	10-2-81 	4:20 	P.M. 	I 	read 	the 	card 	to him."
The parties' dispute 	as 	to 	the 	required 	signature 	continued
to escalate. 	On October 	7, 	Dunham wrote 	to Steele:
On October 	2, 	1981 you 	refused 	to 	sign for
the 	receipt 	of my 	letter 	to you dated
October 	1, 	1981 	(attached). 	Since you were
informed 	that 	your 	signature 	only 	verified
receipt of 	this 	letter, 	and 	that 	it by no
means 	indicated 	agreement, 	you acted 	in an
insubordinate manner. 	You are 	hereby
informed 	that 	if you continue 	to display
this 	flagrant disregard 	for 	your
supervisor's 	instructions, 	you will be
subject 	to disciplinary 	action 	including,
but not limited 	to, 	dismissal.
The 	letter 	contained 	the 	stamped 	notice 	described 	above
referring 	to 	the 	employee's personnel 	file 	and 	the 	right 	of 	the
employee 	to 	respond.
Contrary to 	the 	assertion 	in Dunham's 	letter, 	Steele denied
that 	he 	had 	been 	informed 	that 	his 	signature 	only 	verified
receipt 	of 	the 	letter. 	Because Steele 	believed 	that 	this
letter 	of October 	7, 	1981 	contained 	adverse 	information 	and 	was
to be 	entered 	into his personnel 	file, 	he wanted 	to have 	a
union 	representative 	present. 	Vanderpool 	refused 	to permit
18

Steele 	the 	assistance of 	a 	representative 	and 	read Steele 	the
aforementioned 	card. 	Steele 	nevertheless 	refused 	to 	sign 	the
document and, 	on the October 	7, 	1981 letter, 	Vanderpool wrote,
"Eric Steele 	refussed 	[sic] 	to 	sign or 	take 	this 	letter."
After his 	signature, Vanderpool also wrote, 	"He said he was
intitled 	[sic] 	to a union representative."
Thereafter, 	Steele was presented with 	another 	letter, 	this
one 	from Vanderpool dated October 	8, 	1981. 	In 	that document,
Steele was 	advised 	that, 	in the District's opinion, 	the 	letter
dated October 	2, 	1981, 	in which Dunham acknowledged 	receipt of
Steele's response 	to Dunham's letter of September 	16, 	1981, 	was
informational only and, 	thus, 	Steele was not entitled 	to a
union 	representative. 	Although 	there 	is 	some 	conflict as 	to
when Vanderpool presented Steele 	with 	this 	document, 	Steele
again 	refused 	to 	sign without 	his 	union 	representative 	being
present.9
On October 	23, 	Vanderpool presented Steele 	with yet 	another
letter 	from Dunham dated October 	21, 	1981. 	The 	letter 	stated:
On October 	15, 	1981 you 	refused 	to sign 	for
the 	receipt of 	the 	attached 	letter 	dated
October 	8, 	1981. 	Since you were 	informed
that 	your 	signature 	only 	verified 	receipt of
this 	letter 	and 	that 	it by no means
indicated 	agreement, 	you 	acted 	in an
insubordinate manner.
9Vanderpool's 	letter 	was 	the 	second 	communication Steele
received 	concerning 	his 	refusal 	to 	sign Dunham's 	letter 	on
October 	2, 	1981. 	Vanderpool's 	letter 	denied Steele's grievance
alleging 	a 	right 	to 	union 	representation.
19

You 	are 	hereby 	informed 	that 	if 	you continue
to display 	this 	flagrant disregard 	for 	your
supervisor's 	instructions, 	you will be
subject 	to 	disciplinary 	action 	including,
but not 	limited 	to, 	dismissal.
The 	letter 	contained 	the 	stamped 	notice 	regarding 	inclusion
in his personnel 	file. 	Steele 	testified 	that he got 	the 	letter
after 	working 	hours 	and 	he did 	not want 	to 	sign 	it. 	Vanderpool
told Steele 	that he 	wanted him to 	sign 	it, 	however, 	and Steele
signed 	it with 	the 	notation 	"signed 	under 	coercion with 	threat
of 	disciplinary 	action 	4:35 	PM."10
Also 	during 	the 	week of October 	12, 	Steele discovered 	that
there was 	a 	letter 	in his personnel 	file 	referring 	to a 	snow
day 	in 	1979 	for 	which Steele 	had 	been 	docked. 	Steele 	testified
that 	he 	spent 	two hours 	during work 	time preparing 	a 	response
to 	that 	letter. 	After Steele 	had 	spent 	40 minutes preparing
his 	response, 	Vanderpool 	told 	him to stop 	the 	letter 	writing
and 	return 	to work. 	Steele 	disregarded Vanderpool's directive
and 	continued 	to 	write 	for 	another 	hour 	and 	twenty 	minutes.11
10The 	incident 	involving 	the 	letter 	of October 	21, 	1981
prompted Steele on October 	27, 	1981 	to 	file 	another 	grievance
in which Steele 	charged 	that 	he 	had 	never 	seen 	the 	letter 	dated
October 	8 	referred 	to 	in the October 	21 	letter 	and 	that, 	when
asked, 	Vanderpool was 	uncertain as 	to which 	letter Dunham's
comment 	referred.
11The 	response written by Steele, 	dated October 	26, 	1981,
complained 	of 	the 	presence 	of 	an 	unsigned 	and 	undated 	letter
that 	he 	had 	not 	seen 	in his personnel 	file. 	In 	addition 	to
factual 	assertions about 	the 	snow day 	in question, 	the 	two and
one-half page 	letter 	asserted 	the 	action was 	taken 	for 	union
activity 	and 	complained 	of 	Dunham's 	asserted 	insistence 	on
"absolute power" 	over 	employees.
20

On November 	9, 	Vanderpool presented Steele 	with 	a 	letter
from Dunham, 	dated November 	3, 	which stated:
During the week of October 	12, 	1981, 	you
were given one-half hour 	by Mr. 	Vanderpool,
your 	immediate 	supervisor, 	to 	respond 	to a
letter 	in your 	personnel 	file. 	This 	letter
was 	informational, 	not derogatory and,
therefore, 	did not 	require 	the 	time you
requested 	for 	the 	rebuttal 	letter 	you 	were
granted. 	You 	informed Mr. 	Vanderpool 	that
you 	could 	take 	as much 	time 	as you 	wanted 	to
write 	the letter. 	Mr. 	Vanderpool has
reported 	that you 	took 	two 	hours 	of 	work
time 	to reply. 	Please 	be 	advised 	that 	you
will 	be 	docked 	one 	and 	one-half 	hours of 	pay
effective on your November 	30, 	1981 pay
warrant.
The 	letter 	contained 	the 	stamped 	notice, 	and Steele 	signed
it with 	the 	notation 	"signed 	under 	threat of 	coercion 	and Dis.
letter."
On December 	15, 	Steele 	refused 	to 	sign 	a letter 	from
Dunham, 	dated December 	14, 	1981, 	which advised Steele that his
written 	response 	to the November 	3 	and November 	30, 	1981
letters was placed 	in his personnel 	file. 	Vanderpool wrote 	on
the bottom of 	that 	letter, 	"Eric wanted 	a 	representative
present 	regarding 	this 	disciplinary 	situation 	before 	he 	would
sign or 	have 	a meeting with Mr. 	Dunham."12
On December 	22, 	Vanderpool presented Steele 	with a 	letter
from Dunham, 	dated December 	17, 	regarding Steele's refusal 	to
12 NO document 	dated November 	30, 	1981 	appears 	among
either 	party's 	exhibits. 	Dunham may be 	referring 	to Steele's
November 	30 	pay warrant 	or 	an 	explanatory 	document 	attached
thereto.
21

sign the December 	14 	letter. 	It 	noted 	that Steele 	had been
informed 	that 	his 	signature 	was 	only 	for 	verification of
receipt 	and 	that 	he 	acted 	in 	an 	insubordinate manner. 	The
letter 	stated:
. . . 	if 	you continue 	to 	display 	this
flagrant disregard 	for my 	instructions, 	you
will 	be 	subjected 	to 	disciplinary 	action
including, 	but not limited to, 	dismissal.
Steele 	signed 	the December 	22 	letter 	with 	the 	notation 	that
it 	was 	"signed 	under 	threat of 	disciplinary 	action 	including
dismissal." 	He 	also wrote 	that Vanderpool 	stated 	that 	it was 	a
disciplinary 	letter 	and 	"denied me 	any 	union 	representation 	in
this matter. 	He 	is 	allowing me 	1/2 	hour 	to 	a 	rebuttal."
CSEA's 	final 	allegation 	concerns 	the District's 	unilateral
imposition 	of 	the 	written 	acknowledgment 	requirement.13 In
13Paragraph 	six 	of 	the 	factual 	statement 	attached 	to 	the
unfair 	practice 	charge 	alleges:
6. 	On or 	about April 6, 	1981, 	District
Superintendent 	Dunham 	tried 	to 	unilaterally
change 	established 	procedures 	by 	demanding
that 	CSEA President Roberts 	sign 	for 	receipt
of 	letters 	from 	the District 	on 	contractual
matters. 	President Roberts 	refused 	to 	sign,
but did 	send 	a 	letter 	dated April 7, 	1981,
to 	the District which 	stated 	the District
should 	propose 	such 	changes 	through 	the
bargaining process. 	The District 	never
responded to this 	letter, 	however, 	on or
about October 	1, 	1981, 	the District
unilaterally 	implemented 	a 	requirement 	that
CSEA Representatives 	Roberts 	and 	Steele must
sign 	receipt of 	all 	letters 	under 	threat of
disciplinary 	action, 	which 	could 	include
22

dismissal. 	CSEA again demanded 	to meet 	and
negotiate such change. 	To date, 	the
District 	has 	not 	responded 	to 	that 	request.
that 	regard, 	Roberts 	testified 	that 	the District 	began
insisting 	on 	written 	acknowledgment 	after 	the 	Ledbetter 	hearing
in the 	first part of April 1981. 	At 	that 	time, 	Roberts himself
was 	asked 	to 	sign 	for 	receipt 	of 	information. 	According 	to
Roberts, 	he 	asked 	the superintendent 	to meet 	and 	negotiate 	this
change. 	While no meeting was 	held, 	the District discontinued
the practice.
In September, 	however, 	Steele was 	asked to acknowledge
receipt 	of 	the 	letter 	concerning 	the 	75-pound 	lifting
limitation. 	In 	conjunction with 	the 	grievance 	filed 	regarding
that demand, 	Roberts wrote 	to Dunham on September 	23, 	1981,
stating:
We 	have 	been provided 	with 	a copy of 	the
REPRIMAND 	which you 	issued 	to Eric 	Steele
September 	23, 	1981. 	Stamped on the
REPRIMAND 	is 	a 	request 	that Eric 	Steele must
answer 	this 	derogatory REPRIMAND within 	15
days.
Such 	request 	violates 	the 	negotiated
contract 	and 	sets 	forth 	terms 	and 	conditions
of 	employment 	not 	negotiated 	by 	the
parties. 	Such 	unilateral 	change of 	terms
and conditions 	of 	employment 	is 	in violation
of 	rights 	guaranteed 	by 	the 	"RODDA ACT".
It appears 	that your 	REPRIMAND 	is
retaliatory 	action 	against Eric 	Steele
because 	of 	his 	testimony 	in 	the Ledbetter
unfair 	labor practice 	charge, 	and his
present 	union 	activity.
23

Therefore, 	this 	is a demand 	to meet and
negotiate 	on your 	unilateral 	attempt 	to
change Article 	900 	of 	our 	collective
bargaining 	agreement.14
A 	response 	to 	this 	letter 	is 	expected within
5 	days.
Further, 	this 	letter 	is a demand on you 	to
cease 	and 	desist 	in 	the 	harassment 	and
retaliatory 	action 	taken 	against Eric Steele.
Roberts 	wrote 	a 	second 	letter 	to 	the District on
October 	15, 	which stated:
In 	response 	to my 	letter 	of September 	23,
1981 regarding Grievance No. 	123, 	I asked
you to respond within five 	(5) 	days, 	in your
unilateral 	attempt 	to 	change Article 	900 	of
our 	collective 	bargaining 	agreement.
Also, 	this was a demand on you,
GEORGE 	DUNHAM to 	cease 	and 	desist 	in 	the
harassment 	and 	retaliatory 	action 	taken
against Eric Steele.
The 	intent of 	this 	letter 	is 	that you 	and
each 	and 	all agents 	affilliated 	[sic] 	with
you 	shall 	be put on 	notice of matters 	and
things 	set 	forth herein.
Whereas, 	you failed 	to respond, 	or 	ignored
the demand 	to meet 	and 	negotiate 	this 	change.
Your 	default 	in 	this 	request 	is 	now being
processed 	as 	an 	unfair 	labor 	practice 	by
CSEA.
Roberts 	testified 	that 	he 	received 	no 	response 	to either 	of
his letters, 	and that, 	because the parties never 	had a meeting,
14Article 	900, 	section 902 provides 	that employees be
given 	copies of 	any 	derogatory written material 	before 	it 	is
placed 	in 	their 	personnel 	file. 	It 	requires 	that 	the employee
be 	given 	an opportunity 	to 	initial, 	date 	and 	respond 	to
material.
24

no written proposals 	were presented 	by CSEA 	to 	the District.
Dunham's 	testimony 	differs 	from Roberts'. 	Dunham agreed
that 	the practice of 	requiring 	employees 	to 	sign 	for 	receipt of
letters 	was 	done 	in 	response 	to 	the problem 	revealed 	at 	the
Ledbetter 	hearing, 	that 	is, 	"people have forgotten that they
have 	received 	information." 	However, 	he 	testified 	that 	the
practice 	of 	requiring 	written 	acknowledgment 	did 	not 	begin
immediately 	after 	the Ledbetter 	hearing 	but 	during 	the 	summer.
He 	testified 	that, 	after 	the Ledbetter 	hearing, 	the management
team devised 	the 	card 	to 	be 	read 	to 	employees 	to explain 	that
their 	signature 	did 	not 	indicate 	concurrence 	with 	the 	contents
of 	the document. 	According 	to Dunham, 	everyone was 	required 	to
sign for 	receipt of 	information, 	not only Roberts 	and Steele.
Dunham's 	testimony 	also does 	not 	fully 	comport 	with 	the
admissions made 	in the District's 	answer 	to the 	charge. 	In 	its
answer, 	the District 	responded 	to paragraph 	6 	of 	the 	charge 	as
follows:
Admits 	that on or 	about April 6, 	1981,
Roberts 	refused 	to 	acknowledge 	receiving 	a
letter 	and 	further 	admits 	that Roberts 	wrote
a letter 	dated April 7, 	1981, 	admits 	that on
or 	about October 	1, 	1981, 	the District
implemented 	a 	requirement 	that 	employees
acknowledge 	receiving 	written 	work
instructions 	and 	other 	correspondence 	from
the District 	and 	further 	admits 	that 	failure
to 	comply 	with 	work 	instructions 	could
result 	in discipline 	being 	taken 	against 	the
employee 	. . . 	.15
15On January 	8, 	1982, 	a 	PERB 	hearing 	officer 	granted 	the
25

District's 	request 	to dismiss paragraph 	six of 	CSEA's 	charge,
which 	referred 	to 	the 	unilateral 	change 	in 	these 	acknowledgment
procedures 	said 	to have 	occurred on April 7, 	1981, 	more 	than
six months prior 	to 	the 	date 	when CSEA 	filed 	the 	instant
charge. 	CSEA did not appeal 	the partial dismissal of 	the
charge 	to the Board 	itself. 	Thus, 	the 	alleged 	unilateral
change 	in the 	instant case 	concerns 	the District's 	conduct 	in
the 	fall 	when 	it 	again began 	requiring 	written 	acknowledgment
of 	receipt.
As 	to 	the 	request 	to 	negotiate 	the 	acknowledgment policy,
Dunham 	testified:
Q. 	And 	did 	the 	union 	ever 	ask 	you 	to
negotiate 	that 	particular 	procedure?
A. 	The 	union 	had 	said 	that we 	had 	to
negotiate 	it, 	and that they disapproved, 	and
they 	thought 	that we were 	out of 	order.
They 	never 	came with 	a proposal.
Q. 	And 	did you 	ever 	refuse 	to meet with
them 	to discuss 	it?
A. 	No. 	We 	have 	discussed 	it many 	times.
Q. 	You say we 	have discussed 	it, 	who would
that 	be?
A. 	Excuse me, Mr. Massey, Mr. 	Roberts and
myself.
DISCUSSION
Unlawful 	Discrimination
The 	thrust of 	CSEA's 	first contention 	in this case 	is 	that
the District discriminated 	against Steele 	because 	of 	his
testimony at 	the Ledbetter 	hearing. 	Thus, 	in our 	assessment of
these particular 	charges, 	we 	have 	reviewed 	the 	evidentiary
record 	to 	determine 	whether 	the 	District's 	conduct 	was
unlawfully motivated 	and 	thus 	bore 	a 	sufficient 	nexus 	to
Steele's protected 	activity. 	Novato Unified School 	District
. .
26

(4/30/82) 	PERB Decision No. 	210. 	Where direct evidence 	is
lacking, 	we 	have 	looked 	to 	such 	factors 	as 	timing 	(North
Sacramento School District 	(12/20/82) 	PERB Decision No. 	264;
Coast Community College 	District 	(10/15/82) 	PERB 	Decision
No. 	251), 	disparate treatment 	(San Joaquin Delta Community
College District 	(11/30/82) 	PERB Decision No. 	261; 	San Leandro
Unified School District 	(2/24/83) 	PERB Decision No. 	288),
departure 	from past procedures 	(Novato, 	supra) 	and 	inconsistent
justifications 	(State of 	California 	(Department 	of 	Parks 	and
Recreation) 	(7/29/83) 	PERB Decision No. 	328-S) 	which, 	under
certain circumstances, 	may support 	an 	inference of 	unlawful
motivation.
First, 	in agreement with 	the ALJ, 	we 	find 	that 	the District
did 	not 	discriminate 	against Steele 	by 	failing 	to permit 	him 	to
return 	to work with 	his wrist 	injury.
Specifically, 	we 	affirm the ALJ's 	conclusion that Steele
was 	not 	treated 	differently 	than John Thackeray 	or 	Fred Machado.
These employees, 	unlike Steele, 	were 	not placed on light duty
restrictions 	by 	their 	physicians. 	Thackeray 	testified 	that,
when he 	first 	returned 	to work 	after 	his 	injury, 	his
supervisor, 	Pete Neese, 	saw his 	arm 	in a cast 	and asked him 	if
he was 	able 	to work or 	whether 	he was 	given 	any 	job
restrictions 	by his 	doctor. 	Thackeray's 	testimony 	implies 	that
he 	told Neese 	that 	the 	doctor 	had 	not 	said 	anything 	about 	"not
working," 	and 	the matter 	was 	not pursued 	by Neese or Vanderpool.
27

Similarly, 	Machado's physician did 	not place 	any
limitations 	on his 	job performance 	after 	he 	suffered 	an 	injury
to his 	knee. 	He 	testified 	that his 	doctor's 	instructions 	were
that he 	could perform his duties 	if he was 	not 	in pain.
Based on this 	evidence, 	CSEA has 	failed 	to demonstrate 	that
the District's 	treatment 	of Steele 	was 	substantially 	different
from that of Thackeray 	and Machado or 	that 	it 	bore 	any 	nexus 	to
Steele's 	testimony 	at 	the Ledbetter 	hearing. 	The 	salient
difference between 	these 	employees 	and Steele 	is 	the 	fact 	that
only 	Steele's 	doctor 	imposed 	any 	work 	restrictions.
In 	addition, 	the 	various duties performed 	by 	each employee
further 	explain 	the 	basis 	for 	the District's 	treatment of
Steele. 	At 	the 	time of his 	injury, 	Thackeray was employed as 	a
painter/carpenter, 	a 	job which Thackeray described 	as
"primarily doing painting, 	spray painting, 	brush painting 	some
of the classrooms, 	and exterior walls 	. 	. 	. 	." 	Although
Thackeray's 	right 	arm was 	in 	a plaster 	cast 	that extended 	from
his 	knuckles 	to his 	elbow, 	he 	testified 	that 	he went 	ahead 	and
did 	his 	work, 	missing 	no work 	during 	the 	six 	to eight weeks his
arm was 	in the 	cast. 	Steele's own 	testimony confirmed
Thackeray's. 	Steele 	testified 	that Thackeray worked with 	the
cast on 	during 	the 	summer months 	and 	that 	he 	saw Thackeray
painting 	on a 	scaffold or 	ladder 	wearing 	his 	cast.
Dale 	Roberts 	also 	testified 	that 	he 	saw Thackeray 	spray
28

painting 	and 	working 	with 	tools 	using 	his 	right 	arm when 	his
arm was 	in a cast.
Machado was 	a lead person at 	the 	time he was 	injured. 	His
duties 	included 	bus 	driving, 	supervision 	and 	training 	of 	bus
drivers, 	mechanical duties 	and 	all related clerical work. 	For
the 	duration of Machado's knee 	injury, 	he 	"pulled 	himself off"
the 	bus 	driving 	duties 	but 	continued 	to 	do 	his mechanical 	and
supervisory duties. 	Thus, 	while Machado's 	injury did 	affect
the 	type 	of work 	he performed, 	the 	scope 	of 	his 	actual duties
permitted 	him some 	flexibility. 	It 	is 	unclear 	from the
testimony who 	was 	assigned 	to perform Machado's 	prior 	two 	and
one-half 	hour 	bus 	driving 	detail. 	There 	is 	no suggestion,
however, 	that 	he 	encountered 	any difficulty 	in 	finding 	another
employee 	to substitute 	for 	him or 	that Machado 	sat 	idle 	without
alternative 	duties 	to 	perform 	during 	the 	previously-occupied
bus 	driving 	period.
Unlike 	both Thackeray 	and Machado, 	Steele's 	wrist 	injury
was 	incompatible 	with 	his 	job duties. 	Aside 	from Steele's 	own
self-serving 	statement 	that 	he was 	able 	to perform his 	duties
while 	his 	right 	arm was 	in 	the 	cast, 	Vanderpool persuasively
testified 	to 	the 	contrary. 	A cursory 	review of 	the work orders
for 	the 	specific 	jobs 	actually performed 	during 	the 	summer
months 	by 	Steele's 	substitute 	confirms Vanderpool's 	opinion
that 	the 	work 	required the use 	of 	two 	arms. 	These work orders
seriously 	undermine 	the 	credibility of 	Steele's 	assertions,
29

both 	as 	to his 	abilities 	and 	as 	to his opinion of 	the 	tasks
likely 	to be performed 	during 	the 	summer 	months.
Based on 	these 	factors, 	we 	reject CSEA's contention 	that
the District 	discriminated 	against Steele 	by 	failing 	to
accommodate 	him by 	adjusting 	his 	duties. 	Unlike Thackeray,
Steele's 	injury 	did 	interfere 	with 	the 	performance 	of 	assigned
duties 	and, 	unlike Machado, 	few aspects of Steele's job could
be performed with 	his wrist 	injury, 	and 	the duties 	covered 	by
the 	doctor's 	job 	restrictions 	could 	not 	be 	reassigned.
CSEA also 	contends 	that 	the District's 	conduct was
inconsistent 	with 	regard 	to 	Steele's 	two 	injuries.
Specifically, 	CSEA asserts 	that 	the District 	changed 	its
position 	and 	demanded 	that Steele 	be 	free 	of 	all 	work
restrictions, 	including 	those placed on him by his doctor 	in
the 	course 	of 	his 	earlier 	treatment 	of Steele's shoulder
injury. 	In support of 	that contention, 	Steele 	testified 	that,
after 	his 	wrist 	injury, 	Vanderpool 	and Machado both 	told 	him he
would 	have 	to 	have 	work 	releases 	covering 	both 	injuries 	before
returning 	to work.
These 	statements 	are 	clearly at odds 	with 	the 	earlier
situation when Steele 	was 	permitted 	to 	work 	with 	limitations
placed on over-the-shoulder 	lifting. 	However, 	the 	evidence
supports 	the ALJ's 	conclusion that, 	in spite of 	these
statements, 	Steele was 	not 	treated 	inconsistently. 	Steele was
not permitted 	to 	return 	to work 	in June 	because 	of 	his 	wrist
30

injury 	and 	not 	because 	of 	the 	lifting 	limitations. 	As 	stated
above, 	the 	job duties 	assigned 	during 	the 	summer 	unquestionably
required 	the 	use of 	both 	hands. 	Steele's 	wrist 	injury
prevented 	such performance. 	When Steele 	visited Dr. 	Lewis 	in
mid-August 	and 	received 	a 	work 	limitation 	ordering 	"no over
shoulder 	lifting greater 	than 75 	pounds," Vanderpool's 	response
was 	that Steele's shoulder 	release 	looked 	good 	but 	that 	he
could 	not 	return 	to work 	because of 	his wrist 	injury.
Similarly, 	when Dunham inquired of Dr. 	Lewis as 	to whether 	the
light 	duty restriction was 	because 	of Steele's wrist or
shoulder 	injury, 	Dr. 	Lewis 	advised 	that 	the 	75-pound 	limitation
referred 	to Steele's shoulder 	injury 	and 	that 	his 	wrist 	needed
more 	time 	to heal.
As 	noted 	by the ALJ, 	at 	the 	time Steele 	returned 	to work 	on
August 31, 	1981, 	with Dr. 	Lewis' 	"Full work release from his
wrist fracture," Steele's release dated August 11, 	1981, 	which
imposed 	a 	75-pound 	lifting 	limitation, 	remained 	viable. 	Thus,
despite 	being 	told 	that 	all 	restrictions 	had 	to be 	eliminated,
Steele was 	in 	fact permitted 	to 	return 	to work 	with 	the
shoulder 	limitation on August 31, 	1981, 	when the cast was
removed 	from his 	arm. 	In sum, 	the 	evidence 	does 	not 	support 	an
inference 	that 	the District's 	treatment of Steele was
inconsistent or 	bore 	any nexus 	to his 	testimonial 	conduct.
Acknowledgment 	Rule
Next, 	CSEA excepts 	to 	the ALJ's conclusion 	that Steele was
31

not 	harassed 	or 	discriminated 	against 	by 	virtue 	of 	the
District's 	requirement 	that 	Steele 	indicate 	receipt 	of
documents 	by written 	acknowledgment.16 Specifically, 	CSEA
claims 	that 	the ALJ 	failed 	to 	fully 	assess 	the 	factual
circumstances 	in light of 	its 	argument 	that 	the District's
"harassment 	campaign" 	against Steele 	involved 	inconsistent
insistence 	on Steele's 	written 	acknowledgment.
The District's 	position 	is 	that 	the 	negotiated 	agreement
permits 	it 	to 	require employees 	to acknowledge 	receipt of 	all
documents 	that may be considered derogatory. 	Specifically, 	the
District points 	to Article 900, 	section 902, 	which provides
that 	employees 	be 	presented 	with 	any 	derogatory material 	and,
before 	its 	entry 	into 	their 	personnel 	files, 	be 	"given an
opportunity 	. . . 	to 	initial 	and 	date 	the material 	and 	to
prepare a written response 	. 	. 	. 	." 	In addition, 	the District
cites 	to Steele's 	own 	testimony 	in which 	he 	explained 	the 	need
to have Machado 	reduce 	to writing 	his 	refusal 	to 	let Steele
return 	to work 	after 	suffering 	his 	wrist 	injury.
The ALJ 	found 	an 	inference 	of 	unlawful motive 	because 	the
requirement was 	first 	imposed 	in September, 	not 	long 	after 	the
District 	changed 	its 	reaction 	to Steele's medical 	releases 	in
July. 	However, 	this chain of discriminatory conduct 	seems 	to
16Contrary 	to 	the original charge, 	the 	issue of
discriminatory 	application of 	the 	acknowledgment 	requirement 	is
raised 	by 	these 	exceptions 	as 	to Steele 	and 	not 	as 	to Roberts.
32

erroneously 	link 	the 	acknowledgment 	requirement 	to 	the 	other
alleged 	discriminatory act, 	the District's posture 	as 	to
Steele's 	back 	injury, 	a contention we 	dismiss 	as 	unsupported.
With 	that 	link 	removed, 	the 	temporal evidence 	does 	not 	support
the 	allegation 	that 	the District 	imposed 	the 	acknowledgment
requirement 	in 	retaliation 	for 	Steele's 	testimony 	at 	the
Ledbetter 	hearing on February 	25, 	1981.
The ALJ's proposed 	decision 	in 	the Ledbetter 	case 	issued
June 	4, 	1981. 	The 	first 	time Steele was 	required 	to attach
written acknowledgment was September 	16, 	1981. 	Thus, 	the first
time Steele 	was 	required 	to 	sign 	for 	a 	document 	was 	some 	seven
months 	after 	the 	Ledbetter 	hearing 	and more 	than 	three months
after 	the proposed 	decision 	issued 	in which 	that ALJ 	credited
Steele's testimony. 	Moreover, 	Steele was 	not 	required 	to 	sign
for 	receipt of Vanderpool's 	denial of 	his 	grievance 	on
August 7, 	1981, 	which was closer 	in time to his protected
activity. 	Thus, 	the element of 	timing does 	not clearly 	raise
suspicion of 	unlawful motivation.
The 	record 	with 	regard 	to 	disparate 	application of 	the 	rule
is 	also 	inconclusive. 	Dunham 	testified 	that 	the 	requirement
was 	applied 	to 	all 	employees 	and grew out 	of management's
legitimate 	concerns 	subsequent 	to 	the Ledbetter 	hearing. 	This
claim 	is 	not disturbed 	by 	evidence 	that 	the District may 	have
varied 	its 	practice 	in 	applying 	the 	acknowledgment 	requirement
to Steele. 	Lacking 	is 	the critical 	evidence 	that Steele was
33

treated 	differently 	from other 	employees. 	Thus, 	from 	the
record before 	us, 	unlawful motive does 	not emerge 	from any
evidence 	of 	disparate 	application of 	the 	rule.
Some 	indicia of 	unlawful motive 	emerge 	from 	the District's
explanation 	for 	the 	rule. 	The District 	initially maintained
that 	correcting 	the 	problem of 	proving 	receipt 	of 	documents 	was
the purpose 	for 	imposing 	the 	requirement. 	It also explained,
however, 	that 	the 	rule was 	consistent with 	its 	contractual
obligation 	to permit 	employees 	to 	initial 	derogatory
materials. 	We conclude, 	however, 	that the District's 	two
justifications, 	while divergent, 	are not necessarily
inconsistent. 	One 	could 	argue 	that, 	since 	derogatory material
is more 	apt 	to be 	the 	subject of 	a grievance 	or 	unfair 	practice
charge, 	the 	necessity 	for 	written 	acknowledgment 	to facilitate
proof 	of 	receipt 	is greater 	in 	those 	instances.
In sum, 	our 	review of 	the 	transcript 	and 	examination of 	the
numerous documents Steele was 	required 	to 	sign, 	suggests 	that
the District's 	behavior 	was 	excessive 	and 	perhaps 	ill-advised.
However, 	while 	the 	large 	number 	of documents 	issued 	by 	the
District 	and 	the 	trivial 	nature 	of 	the 	issues 	addressed 	by
these 	letters 	raise 	some 	serious questions 	as 	to 	the District's
intentions, 	we 	remain 	unconvinced by the 	evidence 	that this
conduct 	bears 	a 	sufficient 	connection 	to Steele's Ledbetter
testimony.
34

Negotiability
CSEA also objects 	to 	the ALJ's conclusion 	that Steele did
not 	have 	the 	right 	to a union 	representative when asked 	to
acknowledge 	receipt of various documents. 	It 	argues 	that,
because 	the ALJ 	found 	imposition of 	the 	acknowledgment 	rule 	to
be 	negotiable 	as 	a matter of 	employee discipline, 	Steele was
entitled 	to 	representation.
First, 	we 	find 	that 	the District was 	free 	to unilaterally
institute 	the 	acknowledgment 	requirement 	notwithstanding 	the
fact 	that 	refusal 	to do 	so could 	result 	in discipline. 	We 	find
the ALJ's 	reliance 	on 	the Board's 	decision 	in San Bernardino
City Unified School District 	(10/29/82) 	PERB Decision No. 	255
to be misplaced. 	In that 	case, 	the Board 	found that 	certain
rules 	of 	conduct 	were 	negotiable 	based 	on 	the 	finding 	that 	the
rules were 	related 	to the employees' 	hours of work. 	The
unilaterally 	enacted 	rule 	requiring 	lesson 	plans 	in 	that 	case
bore 	a 	relationship 	to hours of 	employment because 	it created 	a
new, 	mandatory job duty requiring 	employees 	to work more
hours. 	Similarly, 	the 	rule prohibiting 	employees 	from leaving
their 	work 	site 	during work 	hours 	impacted 	on employees' 	hours
of 	employment 	because of 	its 	intrusion on 	nonduty 	lunch or
break periods.
In the 	instant case, 	however, 	we find 	that 	the written
acknowledgment 	rule 	does 	not 	satisfy 	the 	requirements of 	the
Board's 	test 	for 	negotiability 	articulated 	in Anaheim Union
35

High School District 	(10/28/81) 	PERB Decision No. 	177. 	We 	find
no evidence 	that 	the 	rule 	requiring 	employees 	to 	sign 	for
receipt of 	documents 	bore 	any 	logical or 	reasonable
relationship to wages, 	hours or 	other 	enumerated 	terms 	and
conditions of 	employment. 	The 	fact 	that discipline may 	result
if 	an employee 	refuses 	to acknowledge 	receipt does 	not elevate
the 	rule 	itself 	to 	a disciplinary matter 	with 	an 	impact on
wages, 	hours or 	other enumerated 	subjects. 	To adopt 	this
analysis 	would 	bootstrap all 	work 	rules 	into 	negotiable 	items
within scope. 	We, 	therefore, 	find 	the 	institution of 	this rule
to 	fall within 	the parameters of 	the employer's discretion.
Counsel 	of 	Union Representative
While concluding 	that 	the District was 	free 	to 	unilaterally
impose 	the written acknowledgment 	rule, 	we 	nevertheless 	find
that Steele was 	entitled 	to 	the 	counsel of 	his 	union
representative on 	those 	occasions 	when he 	was 	asked 	to 	sign 	for
receipt of documents.
In the 	instant case, 	the District asserts 	that 	no union
representation was 	necessary 	because 	it 	was merely 	requesting
that Steele 	sign 	the 	documents 	to 	signify 	receipt 	and 	that
written 	acknowledgment did 	not 	indicate 	agreement 	with 	the
allegations contained 	in the documents. 	However, 	there 	is no
evidence 	that Steele 	was 	so 	advised 	by Vanderpool 	specifically
as 	to each letter or 	that Steele, 	in fact, 	clearly heard and
understood 	the meaning 	of 	the 	language 	written on 	the 	card 	from
36

which Vanderpool read. 	Absent these assurances, 	it was
reasonable 	for 	Steele 	to assume 	that his 	signature 	did 	evidence
approval or 	agreement and, 	therefore, 	to seek 	the advice of his
union 	representative 	before 	signing 	the documents. 	Moreover,
we 	find 	verbal 	recitals insufficient to dispel Steele's
hesitancy 	to 	act 	unadvised 	where 	the 	documents 	themselves
contained 	no 	indication 	that 	written 	acknowledgment 	did 	not
indicate 	agreement. 	Thus, 	based on his 	uncertainty as 	to 	the
significance of attaching his 	signature 	to 	the 	letters, 	it was
reasonable 	for 	Steele 	to 	seek 	the 	assistance of 	a union
representative 	to provide 	advice 	and 	direction.
We 	find 	that 	an employee's 	right 	to 	representation 	includes
the 	right 	to consult with a union 	representative 	likely 	to be
more 	knowledgeable 	when 	that 	employee 	is 	asked 	to 	supply
immediate, 	written 	response 	to material placed 	in his/her
personnel 	file. 	The 	right 	to such 	representation 	is 	justified
when 	the 	employee 	reasonably believes 	the written 	response 	to
such material 	will 	likely be 	reviewed 	by 	superiors 	when
promotions, 	transfers or 	evaluations are prepared 	(see Modesto
City Schools 	(3/8/83) 	PERB Decision No. 	291), 	or when
disciplinary measures 	are 	contemplated. 	Thus, 	while we do not
mandate 	that prior 	submission 	to 	the 	union 	representative 	is
required when 	an employee 	is 	presented 	with most 	routine 	or
perfunctory documents, 	in this case, 	we 	find that Steele was 	so
entitled.
37

Here, 	the 	barrage of documents began with 	the 	first 	letter
accusing 	Steele 	of 	having 	improperly 	lifted 	objects 	beyond 	the
75-pound 	limitation. 	His 	concern 	for 	the 	threatened discipline
was 	exacerbated 	by 	the 	uncertainty 	Steele 	felt 	concerning 	the
significance his 	signature would 	carry. 	Indeed, 	when presented
with 	each 	subsequent 	letter, 	Steele 	entertained 	reasonable
concerns 	that 	his 	signature 	might 	indicate more 	than mere
receipt 	and 	would 	subject 	him 	to 	future 	disciplinary 	action.
Under 	such circumstances, 	Steele 	was 	entitled 	to 	seek 	the
advice 	of 	his 	union 	representative prior 	to 	signing 	these
documents.
In 	reaching 	this conclusion, 	we 	do not rely on 	the 	rule
articulated 	in NLRB v. 	J. Weingarten, 	Inc. 	(1975) 	420 U.S. 	251
[88 LRRM 2689]. 	Under Weingarten, 	the right to union
representation 	arises 	only 	in 	those 	situations 	where 	the
employee 	is 	present at 	an 	investigatory 	interview which 	the
employee 	reasonably 	believes 	will 	result 	in disciplinary
action. 	Subsequent decisions 	have 	clarified 	the parameters of
the 	rule 	and 	have 	extended 	the 	employee's 	representation 	rights
to disciplinary 	interviews where 	the discussion 	is 	not merely
for 	the purpose 	of 	informing 	the 	employee 	of 	a previously
determined 	decision 	to 	impose 	discipline. 	Baton Rouge Water
Works Company 	(1979) 	246 NLRB 995 	[103 LRRM 1056]. 	See Morris,
Developing Labor 	Law, 	Second Ed., 	pp. 	149-156. 	While 	this
Board 	has 	adopted 	a 	rule 	affording 	employees Weingarten 	rights
38

(Rio Hondo Community College District 	(11/30/82) 	PERB 	Decision
No. 	260), 	the Weingarten rule 	is 	inapplicable here because 	in
no 	situation 	where 	Steele 	was 	asked 	to 	sign 	for 	receipt 	did 	a
"meeting" 	or 	"interview" 	take 	place.17
17While 	recognizing Weingarten's 	inapplicability, 	we 	note
that the 	lead opinion 	in Baton Rouge, 	supra, 	would extend
Weingarten protections 	to 	interviews where 	the 	employer 	informs
the 	employee 	of 	its previously made 	disciplinary 	decision 	and
the employer 	attempts 	to get 	the 	employee 	to admit his/her
wrongdoings or 	to sign a 	statement 	to 	that effect.
In addition, 	we note 	the 	following cases where 	the 	import
of prior 	union consultation has been discussed. 	In Amax, 	Inc.,
Climax Molybdenum Co. 	(1977) 	227 NLRB 1189 	[94 LRRM 1177], 	the
NLRB held 	that, 	under Weingarten, 	both 	the employee and 	the
union 	representative 	had 	the 	right 	to 	a pre-interview
consultation meeting 	prior 	to 	an 	investigatory 	interview 	which
might 	have 	resulted 	in discipline. 	The Board 	found merit 	in
the 	argument 	that Weingarten 	logically extends 	to prior
consultation 	in order 	to 	insure 	effective 	representation.
In Climax Molybdenum Co. 	v. 	NLRB 	(10th Cir. 	1978) 	584 F.2d
360 	[99 	LRRM 2471], 	the Tenth Circuit reversed 	the NLRB's
decision 	and 	declined 	to 	extend Weingarten 	rights 	beyond 	the
actual 	investigatory 	interview. 	It stated, 	however:
The 	employer 	is 	under 	no obligation 	to
accord 	the 	employee 	subject 	to 	an
investigatory 	interview 	with 	consultation
with 	his 	union 	representatives 	on 	company
time 	if 	the 	interview date 	otherwise
provides 	the 	employee 	with 	adequate
opportunity 	to 	consult 	with 	union
representatives on his 	own 	time prior 	to 	the
interview. 	Thus, 	we do believe 	that
Weingarten 	requires 	that 	the 	employer 	set
investigatory 	interviews 	at 	such 	a 	future
time and 	place 	that 	the 	employee will 	be
provided 	the 	opportunity 	to 	consult 	with 	his
39

representative 	in advance 	thereof on his 	own
time. 	(Emphasis 	supplied.)
In Pacific Telephone and Telegraph Co. 	v. 	NLRB 	(9th Cir.
1983) 	711 F.2d 	134 	[113 LRRM 3529], 	the Ninth Circuit 	recently
upheld 	the 	decision of 	the NLRB 	and 	found 	that 	an 	employee 	was
entitled 	to 	a pre-interview 	conference 	with 	his 	union
representative. 	By failing 	to so provide, 	according 	to 	the
Court, 	"the 	ability of 	the 	union 	representative 	effectively 	to
give 	the 	aid 	and 	protection 	sought 	by 	the 	employee 	would 	be
seriously 	diminished."
While 	these 	cases 	ultimately 	involved 	circumstances 	where
an 	investigatory 	interview 	ensued 	and 	thus Weingarten 	rights
attached, 	the principle of consultation with 	a union
representative 	before 	responding 	to employer 	inquiries 	or
accusations maintains.
Nevertheless, 	we do 	not 	find 	this 	failure 	fatal 	to the
result 	reached 	herein. 	The employee's 	right 	to prior
consultation with 	a 	union 	representative 	derives 	from 	the 	right
to participate 	in the activities of 	an employee organization,
particularly 	the 	representation of 	its members 	in 	their
employment 	relationship with 	the public 	school 	employer. 	In
accordance 	with 	those 	cases 	where 	the Board 	has 	specifically
found 	that EERA extends employees' 	representation 	rights beyond
those 	granted 	by Weingarten 	(Rio Hondo 	Community 	College
District 	(12/28/82) 	PERB Decision No. 	272; 	Redwoods Community
College District 	(3/15/83) 	PERB Decision No. 	293, 	rev.
pending), 	we 	find 	that Steele was entitled 	to consult with his
union 	representative prior 	to 	signing 	the 	documents 	presented
to 	him by his 	superior. 	The District's 	failure 	to permit 	this
40

consultation 	violated subsection 	3543.5(a) 	of EERA by
interfering 	with 	Steele's 	statutory 	right.
REMEDY
Subsection 	3541.5(c) 	of 	the Act empowers 	the Board 	to
fashion 	a 	remedy which will best effectuate 	the purposes 	of
EERA. 	We 	have 	found 	that 	the District 	unlawfully 	insisted 	that
Steele 	sign 	for 	receipt 	of 	numerous 	documents 	without 	affording
him the 	opportunity 	to 	consult 	with 	and 	be 	advised 	by 	a
representative of 	his union. 	Accordingly, 	we find 	it
appropriate 	to order 	the District 	to 	remove 	from Steele's
personnel 	file 	any 	and 	all 	documents which 	refer 	to 	his 	failure
to 	sign 	for 	receipt 	and 	all 	documents 	which Steele did 	in 	fact
sign without 	aid of 	his 	representative.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
it 	is 	hereby ORDERED 	that 	the Placer Hills Union School
District 	shall:
A. 	CEASE AND DESIST FROM:
Interfering 	with, 	restraining or 	coercing 	employees
because 	of 	the 	exercise 	of 	rights 	guaranteed 	by 	the Educational
Employment Relations Act 	by 	refusing 	to 	afford 	employee
Eric Steele 	the 	opportunity 	to 	consult with 	his 	union
representative prior 	to 	attaching 	his 	signature 	signifying
receipt 	of 	documents 	tendered.
41

B. 	TAKE 	THE FOLLOWING ACTIONS 	DESIGNED TO EFFECTUATE THE
PURPOSES 	OF 	THE EDUCATIONAL EMPLOYMENT 	RELATIONS 	ACT:
1. 	Remove 	and 	destroy all materials 	in the personnel
file of Eric Steele 	which 	refer 	to 	his 	failure 	to 	attach
written 	acknowledgment of 	receipt 	or 	which 	were 	signed 	by
Steele 	without 	affording 	him an opportunity 	to 	first 	consult
with 	his 	union 	representative.
2. 	Within thirty-five 	(35) 	days after 	the date of
service of 	this Decision, 	post copies of 	the Notice 	to
Employees 	attached 	as 	an 	appendix 	hereto. 	Such posting 	shall
be maintained 	for 	at 	least 	thirty 	(30) 	consecutive 	workdays 	at
the District's 	headquarters 	office 	and 	in conspicuous 	places 	at
the 	locations 	where 	notices 	to classified 	employees 	are
customarily posted. 	Reasonable 	steps 	shall be 	taken 	to ensure
that the Notice 	is not reduced 	in size, 	defaced, 	altered or
covered 	by 	any material.
3. 	Written notification of 	the 	actions 	taken 	to
comply with 	this Order 	shall be made 	to 	the Sacramento Regional
Director 	of 	the Public Employment Relations Board 	in 	accordance
with 	her 	instructions.
C. 	All other 	charges 	are DISMISSED.
Members Jaeger 	and Burt 	joined 	in 	this Decision.
42

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-453,
California School Employees Association 	and 	its Placer 	Hills
Chapter 	636 v. 	Placer Hills Union School District, 	in which
both parties 	had 	the 	right 	to 	participate, 	it 	has 	been 	found
that 	the District 	violated Government Code 	subsection 3543.5(a).
As 	a 	result of 	this 	conduct, 	we 	have 	been ordered 	to post
this Notice 	and will 	abide by the 	following. 	We will:
A. 	CEASE AND DESIST 	FROM:
Interfering 	with, 	restraining 	or 	coercing 	employees
because 	of 	the 	exercise 	of 	rights 	guaranteed 	by 	the Educational
Employment Relations Act 	by 	refusing 	to 	afford 	an 	employee 	the
opportunity 	to 	consult 	with 	his/her 	union 	representative 	prior
to 	attaching 	his/her 	signature 	signifying 	receipt 	of 	documents
tendered.
B. 	TAKE 	THE 	FOLLOWING ACTION 	DESIGNED TO EFFECTUATE 	THE
PURPOSES 	OF THE EDUCATIONAL EMPLOYMENT 	RELATIONS ACT:
Remove 	and 	destroy 	all materials 	in 	the personnel 	file
of Eric 	Steele which 	refer 	to his 	failure 	to 	attach 	written
acknowledgment 	of 	receipt 	or 	which 	were 	signed 	by 	this 	employee
without 	being 	afforded 	the opportunity 	to 	first 	consult with 	a
union 	representative.
Dated: 	PLACER HILLS 	UNION 	SCHOOL 	DISTRICT
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, 	DEFACED, 	ALTERED OR COVERED WITH ANY OTHER
MATERIAL.