Modesto City Schools and High School District (PERB 0479E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MODESTO TEACHERS ASSOCIATION,

Charging Party, Case No. S-CE-498

Ve PERB Decision No. 479

MODESTO CITY SCHOOLS AND HIGH
SCHOOL DISTRICT,

January 10, 1985

Respondent.

Ne ae ee et ee ee ee ee See See See?

Appearances: Ken Burt, Attorney, for Modesto Teachers
Association; Breon, Galgani, Godino & O'Donnell by Mark Goodson
for Modesto City Schools and High School District.

Before: Hesse, Chairperson; Tovar and Burt, Members.
DECISION

TOVAR, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by both the
above-captioned parties to the attached proposed decision of an
Administrative Law Judge (ALJ). The ALJ found that the Modesto
City Schools and High School District (District) violated
sections 3543.5(a), (b) and (c) of the Educational Employment

Relations Act (EERA or act)? by refusing to furnish to the

lthe EFERA is codified at Government Code section 3540
et seq. All statutory references herein are to the Government
Code unless otherwise indicated.

Section 3543.5 provides as follows:

It shall be unlawful for a public school

Modesto 	Teachers Association 	(Association) 	certain documentary
information 	which, 	the 	ALJ 	found, 	was 	relevant 	to 	and 	necessary
for 	the 	Association's 	prosecution 	of 	certain 	grievances. 	For
the 	reasons 	which 	follow, 	we 	affirm 	the 	ALJ's 	determination.
FACTS
Upon 	review 	of 	the 	findings 	of 	fact 	set 	forth 	in 	the
proposed 	decision, 	the 	parties' 	exceptions 	thereto 	and 	the
entire 	record 	in 	this 	case, 	we 	find 	the 	ALJ's 	statement 	of
facts 	to 	be 	free 	from 	prejudicial 	error 	and 	on 	that 	basis 	adopt
those 	findings 	as 	the 	findings 	of 	the 	Board 	itself.
DISCUSSION
The 	collectively 	negotiated 	contract 	between 	the 	parties 	in
this 	case 	includes 	a 	provision which 	sets 	forth 	a 	procedure 	to
be 	used 	by 	the 	District 	in 	selecting 	among 	competing 	applicants
when 	more 	than 	one 	District 	employee 	has 	applied 	to 	transfer
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.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
. 	. 	. . . . 	. 	. 	. . . 	. 	. 	. . 	. . 	. . . . 	.
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into 	a 	particular 	vacant 	employment 	position. 	That 	provision,
at 	Article 	XIII, 	states 	as 	follows:
SELECTION 	OF 	EXISTING EMPLOYEES
The 	job 	related 	selection 	criteria 	shall 	be
established 	by 	the 	District 	prior 	to 	the
initiation 	of 	the 	selection 	process. 	These
criteria 	shall 	be 	reasonably 	related 	to 	the
expected 	performance 	for 	the 	position. 	Each
candidate 	is 	to 	be 	rated 	in 	writing 	in 	terms
of 	the 	selection 	criteria 	during 	the
selection process.
Employees 	not 	selected, 	upon 	written 	request
shall 	receive 	an 	explanation 	of 	why 	they
were 	not 	selected.
As 	more 	fully 	described 	in 	the 	attached 	proposed 	decision
of 	the 	ALJ, 	District 	employees 	Gladys 	Ahart 	and 	Merle 	Benneche
filed 	grievances 	through 	their 	exclusive 	representative
charging 	that 	the 	District 	departed 	from 	the 	contractually
prescribed 	selection 	procedure 	when 	it 	selected 	their
competitors 	for 	transfer 	to 	a 	number 	of 	vacant 	positions. 	In
an 	effort 	to 	secure 	materials 	in 	support 	of 	these 	charges, 	the
Association 	requested 	that 	the 	District 	produce 	the 	"rating
sheets" 	completed 	by 	the 	members 	of 	the 	selection committees.
The 	committees 	used 	these 	forms 	to 	evaluate 	each 	applicant 	for
transfer, 	including 	Ahart 	and 	Benneche.
The 	Association 	specified 	that 	the 	District 	could 	delete
the 	names 	of 	both 	the 	applicant 	and 	the 	rater 	on 	each 	sheet 	in
order 	to 	protect 	the 	confidentiality 	of 	these 	persons. 	The
District, 	however, 	refused 	to 	comply 	with 	the 	Association's
request 	for 	the 	documents 	and 	the 	Association 	filed 	charges
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with 	this 	agency 	alleging 	that 	the 	District's 	refusal
constitutes 	a 	violation 	of 	the Association's 	EERA 	right 	to
represent 	its 	members. 	After 	a 	hearing, 	the 	ALJ 	issued 	the
attached 	proposed 	decision 	finding 	that 	the 	District 	violated
the 	EERA 	by 	refusing 	to 	produce 	the 	information. 	In 	his
proposed 	decision, 	the 	ALJ 	found, 	in 	reliance 	on 	precedential
decisions 	of 	both 	this 	Board 	and 	the 	National 	Labor 	Relations
Board, 	that 	the 	duty 	to 	bargain 	in good 	faith 	requires 	an
employer 	to 	furnish 	information 	that 	the 	bargaining
representative 	needs 	for 	the 	proper 	performance 	of 	its 	duties.
In 	particular, 	he 	found, 	an 	employer 	subject 	to 	the 	EERA must,
as 	a 	general 	rule, 	provide 	to 	an 	exclusive 	representative
information 	and 	documents 	which 	are 	relevant 	to 	a 	pending
grievance 	and 	needed 	by 	the 	organization 	to 	pursue 	the
grievance. 	He 	further 	found 	that, 	in 	the 	instant
circumstances, 	the 	information 	sought 	by 	the 	Association 	was
relevant 	to 	the 	grievances 	filed 	on 	behalf 	of 	Benneche 	and
Ahart. 2
2The ALJ 	explained 	his 	reasoning 	on 	this 	point 	as 	follows:
By 	examining 	the 	ratings 	of 	the 	grievants,
in 	light 	of 	known 	information 	about 	the
applicant 	and 	his 	or 	her 	background, 	and 	in
light 	of 	the 	ratings 	given 	to 	other
applicants, 	the 	Association, 	or 	a 	third
party, 	would 	be 	able 	to 	analyze 	(at 	least 	to
some 	degree) 	the 	fairness 	of 	the 	ratings
given 	to 	the 	grievants. 	This 	comparison
would 	require 	use 	of 	the 	ratings 	of 	all 	the
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On 	exceptions, 	the 	District 	does 	not 	dispute 	the 	ALJ's
statement 	of 	the 	general 	rule, 	nor 	does 	it 	dispute 	his 	finding
that 	the 	information 	sought 	by 	the 	Association 	is 	relevant. 	It
argues, 	however, 	that 	in 	the 	circumstances 	of 	this 	case 	both
contract 	language 	and 	constitutional 	considerations 	limit 	the
right 	of 	the 	Association 	to 	obtain 	the 	information 	it 	seeks 	and
justifies 	the 	District's 	refusal 	to 	furnish 	that 	information.
Initially, 	we 	consider 	the 	District's 	claim 	that 	the
Association 	voluntarily 	negotiated 	a 	limitation 	on 	its 	right 	to
necessary 	and 	relevant 	information 	when 	it 	executed 	the
collectively 	bargained 	agreement 	out 	of 	which 	the 	instant
dispute 	arises. 	This 	argument 	relies 	on 	the 	last 	sentence 	of
Article 	XIII 	of 	the 	contract, 	set 	forth 	above, 	which 	provides
that 	"[e]mployees 	not 	selected, 	upon 	written 	request 	shall
receive 	an 	explanation 	of 	why 	they 	were 	not 	selected." 	Based
on 	this 	sentence, 	the 	District 	argues 	that 	its 	only 	obligation
when 	an 	employee 	contests 	the 	District's 	failure 	to 	select 	him
applicants 	(not 	only 	those 	of 	the 	grievant
and 	of 	the 	person 	eventually chosen 	for 	the
position). 	Examination 	of 	the 	ratings 	of
other 	unsuccessful 	applicants 	might 	well
illuminate 	standards 	used 	by 	the 	raters,
which 	might 	not 	be 	discernible 	if 	the 	only
rating 	sheets 	available 	were 	those 	of 	the
grievant 	and 	of 	the 	successful 	applicant.
We 	add 	that 	federal 	precedent 	interpreting 	the 	National
Labor 	Relations 	Act 	appears 	to 	support 	the 	ALJ's 	analysis. 	The
NLRB 	observes 	the 	standard 	that 	requested 	information 	"must 	be
disclosed 	unless 	it 	plainly 	appears 	irrelevant." 	NLRB 	v.
Yawman 	& Erbe 	Co. 	(CA 	2 1951) 	187 	F.2d 	947, 	949 	[27 	LRRM 	2524].
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or 	her 	for 	transfer 	is 	to 	give 	the 	employee 	11 an 	explanation 	of
why 	they were 	not 	selected."
As 	noted 	above. 	the 	District 	acknowledges 	that 	the 	EERA
protects 	the 	right 	of 	an 	exclusive 	representative 	to
information which 	is 	relevant 	to 	and 	necessary 	for 	the
prosecution 	of 	a 	grievance. 	It 	argues. 	however. 	that 	here 	the
Association 	yielded. 	or 	11 waived 11 	that 	right. 	agreeing 	to 	the
contractually-provided 	11 explanation 11 	procedure 	in 	its 	place.
Under 	well-established 	Board 	precedent. 	a 	finding 	of 	waiver
will 	be 	made 	only upon 	evidence 	of 	"clear 	and 	unmistakable"
language 	or 	conduct. 	Amador 	Valley Joint 	Union High 	School
District 	(10/2/78) 	PERB 	Decision No. 	74; 	Davis 	Unified 	School
District, 	et 	al. 	(2/22/80) 	PERB 	Decision No. 	116.
In 	our 	view. 	neither 	the 	contract 	language 	on 	its 	face. 	nor
any 	evidence 	in 	the 	record. 	supports 	the 	District's 	assertion
that 	the 	Association 	voluntarily 	surrendered 	its 	right 	to
relevant 	information which 	is 	needed 	to 	grieve 	an 	alleged
violation 	of 	the 	transfer 	selection 	procedure. 	While 	the
contract 	provision 	relied 	on 	by 	the 	District 	does 	provide 	a
means 	by which 	grievants 	can 	obtain 	some 	information 	about 	the
selection 	process. 	there 	is 	nothing 	to 	suggest 	that 	this
limited 	and 	informal 	procedure 	was 	agreed 	to 	by 	the 	District 	in
exchange 	for 	a 	waiver 	by 	the 	Association 	of 	its 	EERA 	right.
Rather. 	it 	seems 	at 	least 	as 	likely 	that 	the 	parties 	perceived
mutual 	benefit 	in making 	available 	an 	informal 	means 	of
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responding 	to 	transfer 	applicants' 	questions 	short 	of 	a 	formal
grievance 	proceeding. 	In 	the 	absence 	of 	any 	evidence 	clearly
establishing 	that 	the 	Association 	waived 	all 	or 	part 	of 	its
EERA 	rights 	to 	represent 	its 	members 	in grievance 	matters,
then, 	the 	language 	relied 	on 	by 	the 	District 	can 	only 	be 	read
to 	provide 	an 	alternative 	procedure 	which 	exists 	in 	addition
to, 	not 	in 	place 	of, 	the 	formal 	grievance 	procedure 	set 	out 	in
Article 	III 	of 	the 	contract. 	Anaheim 	City School 	District
(12/14/83) 	PERB 	Decision No. 	364.
The 	District's 	primary 	basis 	for 	its 	position 	that 	the 	EERA
does 	not 	mandate 	the 	production 	of 	the 	information 	sought 	by
the Association 	is 	its 	argument 	that 	constitutional 	rights 	of
privacy 	here 	countervail 	the 	general 	rule 	requiring 	production
of 	relevant 	information. 	Decisions 	of 	both 	the 	state 	and
federal 	courts 	indeed 	support 	the 	premise 	that 	constitutional
rights 	of 	personal 	privacy 	may 	limit 	otherwise 	lawfully
authorized 	demands 	for 	the 	production 	of 	personal 	information
which 	has 	been 	held 	in 	confidence. 3 As 	noted 	by 	the
3Evidence 	that 	the 	information 	which 	is 	sought 	by 	a 	party
to 	litigation 	was 	given 	to 	its 	custodian 	under 	prior 	assurances
of 	confidentiality may 	in 	some 	circumstances 	be 	of 	critical
significance 	in 	resolving 	conflicts 	between 	the 	right 	to 	needed
information 	and 	the 	right 	to 	privacy. 	Here, 	the 	ALJ 	found 	that
the 	record 	evidence 	failed 	to 	prove 	that 	such 	assurances 	of
confidentiality 	were 	given 	either 	to 	raters 	or 	to 	applicants
for 	transfer. 	The 	District 	has 	excepted 	to 	this 	finding. 	we
need 	not 	resolve 	this 	factual 	matter 	because, 	as 	explained
infra, 	even 	assuming 	such 	assurances 	were 	given, 	the 	District
had 	an 	obligation 	to 	provide 	the 	information 	requested 	by 	the
Association.
7

District, 	the 	California Constitution 	makes 	express 	reference
to 	the 	right 	of 	privacy 	at 	Article 	I, 	section 	1. 	While 	the
United 	States 	Constitution 	has 	no 	parallel 	reference, 	the
Supreme 	Court 	has 	interpreted 	it 	to 	provide 	similar
protection. 	See, 	Katz 	v. 	United 	States, 	389 	U.S. 	347 	[19
L.Ed.2d 	576, 	88 	s.ct. 	507] 1 	Griswold 	v. 	Connecticut, 	381 	u.s.
479 	[14 	L.Ed.2d 	510, 	85 	s.ct. 	1678].
The 	U.S. 	Supreme 	Court 	has 	determined 	that 	where 	a 	union
seeks 	relevant 	information 	about 	a 	mandatory 	subject 	of
bargaining, 	the 	disclosure 	of 	which may 	infringe 	upon
constitutionally 	protected 	privacy 	interests, 	the 	National
Labor 	Relations 	Board 	must 	undertake 	to 	balance 	the 	conflicting
rights. 	Detroit 	Edison 	Company 	v. 	NLRB 	(1979) 	440 	U.S. 	301
[100 	LRRM 	2728]. 	The 	California 	courts 	have 	endorsed 	much 	the
same 	approach 	in 	reconciling 	the 	state 	constitution's
protection 	of 	privacy 	with 	the 	"strong 	public 	policy 	in 	favor
of 	discovery." 	Board 	of 	Trustees 	v. 	Superior 	Court 	(1981) 	119
Cal.App.3d 	516, 	522.
And 	even 	when 	discovery 	of 	private
information 	is 	found 	directly 	relevant 	to
the 	issues 	of 	ongoing 	litigation 	••• 	there
must 	then 	be 	a 	"careful 	balancing" 	of 	the
"compelling 	public 	need" 	for 	discovery
against 	the 	"fundamental 	right 	of 	privacy."
[Citations 	omitted.] 	Board 	of 	Trustees 	v.
Superior 	Court, 	supra, 	at 	525.
In 	support 	of 	its 	constitutional 	argument, 	the 	District
cites 	a 	number 	of 	California 	cases 	in 	which 	the 	court, 	upon
application 	of 	the 	above-noted 	balancing 	approach, 	has 	denied
8

or 	limited 	a 	plaintiff's 	effort 	to 	discover 	relevant
information 	which 	infringed 	upon privacy 	interests. 	In Board
of Medical 	Quality Assurance 	v. 	Gherardini 	(1979) 	93 	Cal.App.3d
669, 	the 	court 	of 	appeal 	reversed 	the 	order 	of 	a 	superior 	court
granting 	the 	plaintiff 	medical 	board's 	petition 	directing 	a
hospital 	to 	produce 	the 	medical 	records 	of 	five 	patients 	in
connection 	with 	an 	ongoing 	investigation 	of 	their 	common
doctor. 	Applying 	the 	balancing 	approach, 	the 	court 	found 	on
the 	one 	hand 	that 	"a 	person's 	medical 	profile 	is 	an 	area 	of
privacy 	infinitely more 	intimate, 	more 	personal 	in 	quality 	and
nature 	than 	many 	areas 	already 	judicially 	recognized 	and
protected." 	On 	the 	other 	hand, 	the 	board's 	petition 	for
discovery 	included 	"no 	showing 	of 	relevance 	or 	materiality 	of
the 	medical 	records 	••• 	to 	the 	general 	charge 	[against] 	the
doctor." 	The 	court 	therefore 	denied 	the 	petition.
(Gherardini, 	supra, 	at 	p. 	681.) 	In 	Board 	of 	Trustees 	v.
Superior 	Court, 	supra, 	the 	court 	of 	appeal 	substantially
limited 	a 	broad 	discovery 	order 	issued 	by 	the 	underlying
superior 	court. 	The 	court 	found 	that 	most 	of 	the 	documentation
identified 	in 	the 	superior 	court's 	discovery 	order 	was 	simply
not 	relevant 	to 	the 	plaintiff's defamation 	action. 	With 	regard
to 	the 	plaintiff's 	own 	employment, 	tenure 	and 	promotion 	files,
however, 	the 	court 	found 	relevancy 	and, 	therefore, 	did 	not
flatly 	bar 	discovery. 	Rather, 	it 	held 	that 	the 	order 	should 	be
tailored 	to 	preserve 	the 	privacy 	interests 	of 	confidential
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personnel 	evaluations 	contained 	in 	those 	files 	in 	the 	form 	of
letters 	of 	recommendation 	or 	otherwise. 	This 	could 	be
accomplished, 	said 	the 	court, 	by 	deletion 	of 	names 	or 	other
markings 	which 	would 	reveal 	the 	identity 	of 	the 	author.
The 	ALJ 	noted 	that, 	where 	a 	union 	has 	established 	the
relevance 	and 	need 	for 	particular 	information, 	the 	burden 	of
proof 	is 	on 	the 	party 	holding 	the 	information 	to 	show 	that
disclosure 	would 	compromise 	the 	right 	of 	privacy. 	Minnesota
Mining 	and 	Manufacturing 	Company 	(1982) 	261 	NLRB 	No. 	2 	(109
LRRM 1345]; 	Press 	Democrat 	Publishing 	Company 	v. 	NLRB 	(9th 	Cir.
1980) 	629 	F.2d 	1320 	(105 	LRRM 	3046]; 	Johnson 	v. 	Winter 	(1982)
127 	Cal.App.3d 	435. 	He 	found 	that 	the 	District 	failed 	to
introduce 	evidence 	establishing 	that 	the 	production 	of 	the
information 	requested 	by 	the 	Association 	would 	substantially
compromise 	the 	privacy 	of 	those 	individuals.
The 	District 	has 	strenuously 	excepted 	to 	this 	finding,
relying 	on 	Detroit 	Edison, 	supra, 	in 	which 	the 	Court 	found 	that
the 	private 	nature 	of 	information 	regarding 	a 	person's 	"basic
competence 	is 	sufficiently 	well 	known 	to 	be 	an 	appropriate
subject 	of 	judicial 	notice." 	Similarly, 	the 	District 	relies 	on
Board 	of 	Trustees, 	supra, 	in 	which 	the 	court 	found 	that
discovery 	of 	confidential 	letters 	of 	reference 	and 	peer
evaluations 	was 	also 	limited 	by 	"the 	communicators'
constitutional 	right 	of 	privacy."
10

As 	noted 	by 	the 	ALJ, 	the 	practice 	of 	accommodating 	privacy
rights 	and 	discovery 	needs 	by 	ordering 	disclosure 	of
confidential 	documentation conditioned 	on deletion 	of 	the
identities 	of 	persons 	associated 	with 	the 	information 	is 	now
commonplace. 	See, 	e.g. 	Johnson 	v. 	Winter, 	supra, 	127
Cal.App.3d 	435. 	Indeed, 	in 	Detroit 	Edison, 	supra, 	the 	employer
had 	already 	voluntarily 	disclosed 	the 	raw 	data 	sought 	by 	the
union; 	the 	issue 	in 	that 	case 	was 	limited 	to 	the 	production 	of
the 	identifying 	names 	of 	the 	job 	applicants 	who 	were 	tested.
In 	the 	instant 	case, 	the 	Association 	has 	specifically
limited 	its 	request 	for 	the 	rating 	sheets 	by 	agreeing 	that
identification 	of 	both 	the 	rater 	and 	the 	applicant 	may 	be
deleted. 	The 	significance 	of 	this 	voluntary 	limitation,
however, 	appears 	to 	have 	been 	ignored 	by 	the 	District. 	Indeed,
the 	District 	places 	its 	reliance 	most 	heavily 	on 	cases 	which
order 	production 	of 	information 	consistent 	with 	this
limitation. 	Thus, 	in Board 	of 	Trustees, 	supra, 	the 	court 	stated
Here, 	no 	compelling 	state 	purpose 	is 	seen 	in
the 	maintenance 	of 	confidentiality 	of 	the
contents 	of 	the 	letters 	of 	reference 	at
issue. 	The 	privacy 	rights 	of 	our 	instant
concern 	will 	be 	fully 	respected 	by 	the
withholding 	of 	the 	names 	and 	other
identification 	of 	the 	confidential
communications' 	authors." 	[Emphasis 	in 	the
original.]
We 	thus 	affirm 	the 	ALJ's 	finding 	that 	the 	District 	failed
to 	show 	how 	the 	disclosure 	of 	the 	contents 	of 	the 	rating
sheets, 	without 	identification 	of 	raters 	and 	applicants, 	would
11

violate 	the 	privacy 	rights 	of 	those 	individuals. 	It 	follows,
then, 	that 	because 	no 	protected 	privacy 	interest 	has 	been
demonstrated 	in 	the 	contents 	of 	the 	rating 	sheets, 	it 	is
unnecessary 	to 	apply 	the 	"balancing 	test" 	prescribed 	in 	the
state 	and 	federal 	cases. 	That 	test 	is 	required 	only 	where 	a
request 	for 	information 	brings 	into 	conflict 	the 	interests 	of
privacy 	on 	the 	one 	hand 	and 	discovery 	on 	the 	other. 	Where
names 	are 	not 	part 	of 	the 	requested 	information, 	however, 	"the
privacy 	rights 	••• 	will 	be 	fully 	respected." 	Board 	of
Trustees, 	supra. 	We 	therefore 	affirm 	the 	ALJ's 	holding 	that
By 	thus 	limiting 	its 	own 	request 	for
information, 	the 	Association 	prevented 	the
development 	of 	any 	conflict 	between 	its
right 	to 	obtain 	information 	and 	the
applicants' 	[and 	raters'] 	interest 	in
maintaining 	the 	"privacy" 	of 	their 	own
respective 	ratings. 	[Proposed 	Decision,
p. 	40.]
There 	is 	one 	situation 	presented 	in 	this 	case, 	however, 	to
which 	the 	above 	rationale 	cannot 	apply. 	In 	one 	or 	more 	cases,
the 	District 	has 	indicated, 	only 	two 	applicants 	applied 	for 	a
particular 	position: 	the 	grievant 	(who 	was 	not 	selected) 	and
the 	successful 	applicant. 	Because 	the 	grievant 	is 	entitled 	to
know which 	is 	his 	or 	her 	rating 	sheet, 	the 	remaining 	rating
sheet 	will 	necessarily 	be 	linked 	with 	the 	successful 	applicant,
whose 	identity 	is 	readily 	determined 	because 	of 	incumbency 	in
the 	position 	at 	issue. 	We 	agree 	with 	the 	District 	that,
because 	the 	anonymity 	of 	such 	an 	applicant 	cannot 	be 	preserved,
the 	privacy 	interest 	of 	that 	individual 	in 	his 	or 	her 	rating
12

sheet 	is 	apparent. 	Thus 	a 	balancing 	of 	that 	person's 	privacy
interest 	against 	the Association's 	need 	for 	discovery 	is
required.
On 	balance, 	we 	conclude 	that 	even 	here, 	disclosure 	of 	the
rating 	sheet 	is 	required. 	Certainly 	a 	comparison 	between 	the
rating 	sheets 	of 	the 	grievant 	and 	the 	successful 	applicant 	is
essential 	if 	the 	grievants 	are 	to 	prove 	their 	claims. 	Without
such 	a 	specific 	comparison 	no 	such 	proof 	is 	possible. 	The
successful 	applicants, 	on 	the 	other 	hand, 	must 	fairly 	expect
that 	the 	award 	of 	the 	hotly-contested 	positions 	may 	be 	subject
to 	scrutiny 	to 	ensure 	that 	the 	award 	is 	fair 	and 	proper. 	The
interest 	of 	the 	grievants, 	the 	Association 	and 	state 	itself 	in
ensuring 	that 	the 	selection procedure 	was 	implemented properly
in 	these 	circumstances 	compells 	disclosure.
THE 	REMEDY
The 	District 	argues 	that, 	even 	if 	it 	has 	an 	obligation 	to
disclose 	the 	information 	sought 	by 	the 	Association, 	the 	ALJ
should 	have 	permitted 	it 	the 	option 	of 	preparing 	and 	turning
over 	to 	the 	Association 	a 	comprehensive 	summary 	of 	the
information 	recorded 	on 	the 	rating 	sheets. 	The 	District 	relies
on 	Board 	of 	Trustees, 	supra, 	in 	which 	the 	court 	permitted 	this
alternative 	to 	the 	production 	of 	the 	original 	documents 	with
names 	deleted.
The 	particular 	form 	in 	which 	information 	must 	be 	produced
to 	meet 	the 	employer's 	bargaining 	obligation 	under 	the 	EERA, 	or
to 	meet 	a 	party's discovery 	obligation 	in 	litigation, 	is 	a
13

matter 	which 	necessarily 	turns 	on 	the 	specific 	facts 	of 	each
case. 	Here, 	where 	the 	District 	was 	obligated 	by 	contract 	to
make 	its 	selections 	in 	transfer 	cases 	based 	largely 	on detailed
objective criteria 	rated 	on 	the 	basis 	of 	numerical 	scores, 	a
high 	level 	of 	precision 	and 	accuracy 	in 	communicating 	about 	the
subject 	is 	essential.
The 	ALJ carefully 	articulated 	exactly 	this 	point 	in 	the
proposed 	decision 	at 	pp. 	33-34. 	We 	therefore 	affirm 	the 	ALJ's
refusal 	to 	permit 	the 	District 	to 	satisfy 	its 	bargaining
obligation 	by 	preparing 	merely 	a 	summary 	of 	the 	information
recorded 	on 	the 	rating 	sheets.
The 	Association 	excepts 	to 	the 	ALJ's 	denial 	of 	its 	request
for 	an 	award 	of 	costs, 	damages 	and 	attorney's 	fees. 	The
request 	for 	damages 	is 	based 	on 	a 	claim 	that 	the 	Association
has 	suffered 	"refusal 	of 	recognition, 	potential 	loss 	of
membership 	and 	injury 	to 	the 	Association's 	reputation 	as 	to
being 	able 	to 	represent 	its 	members." 	However, 	no 	evidence 	is
pointed 	to 	which 	would 	prove 	the 	truth 	of 	the 	above
assertions. 	We 	therefore 	find 	no 	basis 	for 	reversing 	the 	ALJ's
determination. 	So, 	too, 	we 	affirm 	the 	ALJ's 	refusal 	to 	award
costs 	and 	attorney's 	fees. 	On 	its 	face, 	the 	District's concern
for 	the 	privacy 	of 	the 	individuals 	involved 	is 	not 	without
arguable 	merit. 	Chula 	Vista 	City 	School 	District 	(11/8/82)
PERB 	Decision No. 	256; 	Central 	Union High 	School 	District
(6/30/83) 	PERB 	Decision No. 	324.
14

ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law.
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	section
354l(c), 	it 	is 	hereby ORDERED 	that 	the 	Modesto 	City 	Schools 	and
High 	School 	District 	and 	its 	representatives 	shall:
1. 	CEASE AND DESIST 	FROM:
(a) 	Failing 	and 	refusing 	to 	provide 	the 	Modesto
Teachers 	Association with 	all 	relevant 	information 	and
documents 	needed 	by 	the 	Association 	to 	prosecute 	contract
grievances 	on 	behalf 	of 	certificated 	employees 	of 	the 	District.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(a) 	Upon 	request 	by 	the 	Modesto 	Teachers 	Association.
provide 	to 	the 	Association 	the 	rating 	sheets 	of 	all 	applicants
for 	the 	positions 	to 	which Merle 	Benneche 	and 	Gladys 	Ahart
applied 	to 	transfer 	in 	the 	1981-82 	academic 	year. 	provided
that: 	the 	District 	may 	delete 	the 	names 	and 	any 	other
identifying 	markings 	of 	the 	raters: 	and 	provided 	also 	that 	for
the 	rating 	sheets 	of 	applicants 	other 	than 	Benneche 	and 	Ahart.
the 	District may 	conceal 	the 	names 	and 	other 	identifying
markings 	of 	the 	applicants 	before 	disclosing 	the 	rating 	sheets
to 	the 	Association.
(b) 	If 	the 	Modesto 	Teachers 	Association 	seeks 	to
re-open 	one 	or 	more 	of 	the 	grievances 	filed 	by Merle 	Benneche
and 	Gladys 	Ahart, 	or 	seeks 	to 	reopen 	the 	arbitration 	proceeding
concerning 	those 	grievances. 	refrain 	from 	interposing 	any
15

procedural 	objection 	(timeliness. 	res 	judicata 	or 	the 	like) 	to
the 	reopening 	sought 	by 	the 	Association.
(c) 	Within 	35 	days 	following 	the 	date 	this 	Decision
is 	no 	longer 	subject 	to 	reconsideration. 	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 	30 	consecutive 	workdays. 	Reasonable
steps 	shall 	be 	taken 	to 	insure 	that 	this 	Notice 	is 	not 	reduced
in 	size. 	defaced. 	altered 	or 	covered 	by 	any 	material.
(d) 	Written 	notification 	of 	the 	actions 	taken 	to
comply with 	this 	Order 	shall 	be 	made 	to 	the 	Regional 	Director
of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance 	with
his/her 	instructions.
IT 	IS 	FURTHER ORDERED 	that 	all 	other 	allegations 	of
violation 	in 	Case 	No. 	S-CE-498 	are 	hereby DISMISSED.
Member 	Burt 	joined 	in 	this 	Decision.
Chairperson 	Hesse's 	concurrence 	and 	dissent 	begin 	on 	page 	17.
16

Hesse, 	Chairperson, 	concurring 	and 	dissenting: 	I 	concur
with 	the 	majority 	insofar 	as 	it 	concludes 	that 	the 	Association
is 	entitled 	to 	receive 	the 	rating 	sheets 	of 	the 	grievants 	and
of 	the 	successful 	candidates, 	though 	I 	do 	so 	for 	the 	reasons
set 	forth 	below 	as 	opposed 	to 	the 	majority's 	rationale. 	I
dissent, 	however, 	as 	to 	the 	finding 	that 	the 	District 	must
provide 	the 	Association 	with 	the 	rating 	sheets 	of 	all 	of 	the
applicants 	for 	the 	positions.
The 	various 	parties 	to 	a 	job 	interview 	- 	the 	employer, 	the
interviewer 	or 	reference 	writer, 1 	the 	successful 	applicant,
the 	unsuccessful 	applicant, 	and 	the 	association 	(when
contractual 	obligations 	are 	involved 	in 	the 	application
process) 	- 	all 	have 	a 	right 	to 	privacy. 	In 	each 	case, 	that
right 	to 	privacy 	may 	be 	waived 	voluntarily 	by 	the 	holder 	of 	the
right, 	or 	the 	right 	itself 	may 	be 	overridden 	because 	the 	need
to 	disclose 	outweighs 	the 	need 	for 	privacy.
In 	this 	case, 	the 	majority 	would 	"protect" 	all 	of 	the
applicants' 	privacy merely 	by deleting 	the 	applicants' 	names
from 	the 	released 	rating 	sheets. 	By 	doing 	so, 	it 	disregards
the 	District's 	statements 	that 	the 	individuality 	of 	each
applicant 	is 	revealed 	by 	the 	rating 	sheets, 	thus 	denying 	the
applicants' 	privacy. 	But 	there 	is 	no 	need 	to 	invade 	the
lThe 	majority does 	not 	address 	the 	right 	to 	privacy 	of
the 	interviewers, 	but 	I 	believe 	that 	it 	is 	outweighed 	by 	the
grievants' 	need 	to 	know, 	possibly 	coupled 	with 	contractual
rights, 	to 	know 	the 	reasons 	why 	they 	were 	not 	selected.
17

privacy 	of 	all 	applicants. 	Rather, 	the 	competing 	interests 	of
the 	parties 	can 	be 	protected 	in 	a 	less 	invasive 	manner 	by
application 	of 	the 	balancing 	test, 	referred 	to 	by 	the 	majority
but 	never 	fully 	explained.
In 	the 	instant 	case, 	the Association 	claims 	it 	needs 	all
the 	rating 	sheets 	to 	enable 	it 	to 	represent 	various 	employees
who 	have 	filed 	grievances 	against 	the 	District. 	These
grievances 	are 	presumably 	based 	upon 	a 	claim 	of 	exclusion 	of
the 	grievants 	for 	"illegal" 	reasons, 	i.e., 	grounds 	in 	violation
of 	the 	contract. 	Assuming 	there 	is 	such 	a 	need 	for 	the 	rating
sheets, 	the 	Association's 	"compelling" 	need 	must 	be 	balanced
against 	all 	the 	involved 	employees' 	fundamental 	rights 	of
privacy.
Provisions 	of 	state 	law demonstrate 	a 	consistent 	public
policy 	that 	individuals 	have 	access 	to 	records 	that 	contain
information 	about 	themselves, 	subject 	to 	certain 	limited
exceptions 	and 	with 	the 	protection 	of 	confidential 	sources.
(See, 	i.e., 	Information 	Practices 	Act 	of 	1977 	[Civ. 	Code 	sec.
1798.3(b) 	and 	1798.38); 	Gov. 	Code 	sec. 	31011; 	and 	Labor 	Code
sec. 	1198.5.) 	The 	grievants' 	wishes 	are 	to 	see 	their 	rating
sheets 	and 	to 	provide 	their 	union 	with 	copies. 	Here, 	the
grievants 	can 	and 	do 	waive 	the 	right 	to 	privacy 	of 	their 	own
rating 	sheets. 	The 	Association 	can 	then 	use 	those 	rating
sheets 	to 	determine 	if 	the 	grievances 	have 	merit 	and 	should 	be
pursued.
18

In 	order 	for 	a 	full 	evaluation 	of 	the 	selection 	process,
the 	Association 	would 	need 	to 	see 	the 	rating 	sheets 	not 	only 	of
the 	grievants, 	but 	also 	of 	the 	successful 	applicant. 	Does 	a
compelling 	reason 	exist 	to 	override 	the 	right 	of 	privacy 	of
that 	individual? 	I 	think 	it 	does.
The 	successful 	applicant, 	although 	competent 	enough 	to 	be
rated 	the 	highest, 	may 	have 	some 	deficiencies 	that 	the 	employee
would 	not 	want 	disclosed. 	This 	interest 	in 	privacy, 	however,
must 	be 	balanced 	against 	the 	grievants' 	right 	to 	know 	that 	the
evaluation 	process 	was 	correctly 	concluded, 	and 	that 	the
failure 	to 	select 	the 	grievants 	was 	not 	for 	reasons 	prohibited
by 	the 	contract. 	Thus, 	while 	the 	successful 	candidate 	has 	an
interest 	in 	keeping 	the 	rating 	sheets 	confidential, 	the
grievants' 	and 	the 	Association's 	right 	of 	disclosure 	is
overriding. 	The 	successful 	applicants' 	rating 	sheets 	must 	be
disclosed 	to 	the 	Association.
The 	majority 	would 	also 	disclose 	the 	ratings 	of 	the
non-grievant, 	unsuccessful 	applicants. 	These 	employees,
however, 	have 	not 	waived 	any 	right 	to 	privacy. 	Nor 	do 	the
public 	policy 	considerations 	that 	apply 	to 	an 	individual's
right 	to 	review 	his 	own 	records 	apply 	to 	a 	third 	person's
record.
The 	other 	unsuccessful 	applicants' 	rating 	sheets
undoubtedly 	contain 	less 	positive 	information 	than 	that 	of 	the
successful 	applicant. 	These 	employees 	have 	a 	protectable
19

privacy 	interest, 	even 	if 	their 	names 	are 	deleted, 	because 	the
information 	in 	the 	rating 	sheets 	can 	itself 	identify 	the
persons.
The 	Association's 	need 	to 	have 	these 	other 	unsuccessful
applicants' 	rating 	sheets 	is 	not 	obvious. 	The 	grievants 	want
to 	know 	why 	someone 	else 	was 	picked 	for 	the 	position 	over
themselves. 	There 	is 	little 	or 	no 	reason 	to 	know why 	someone
else 	also 	was 	not 	chosen. 	Thus, 	whatever 	interest 	the
Association 	has 	in 	disclosure 	does 	not 	override 	the 	other
unsuccessful 	applicants' 	right 	of 	privacy.
In 	sum, 	the 	majority 	fails 	to 	distinguish 	between 	the
competing 	interests 	of 	all 	applicants 	and 	does 	not 	balance
their 	varying 	interests 	against 	the 	need 	to 	disclose. 	Although
I 	agree 	that 	limited 	disclosure 	is 	necessary 	to 	preserve 	the
integrity 	of 	the 	collective 	bargaining 	agreement, 	I 	disagree
that 	sweeping 	disclosure 	of 	extraneous 	information 	is 	called
for.
20

APPENDIX NOTICE 	TO EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
a
After 	a 	hearing 	in 	Unfair 	Practice 	Case 	No. 	S-CE-498.
Modesto 	Teachers 	Association v. 	Modesto 	City 	Schools 	and 	High
School 	District. 	in which 	all 	parties 	had 	the 	right 	to
participate. 	it 	has 	been 	found 	that 	the 	Modesto 	City Schools
and 	High 	School 	District 	violated 	Government 	Code 	sections
3543.S(a). 	(b) 	and 	(c).
As 	a 	result 	of 	this 	conduct 	we 	have 	been 	ordered 	to 	post
this 	Notice. 	and 	will 	abide 	by 	the 	following. 	We 	will:
1. 	CEASE AND DESIST FROM:
(a) 	Failing 	and 	refusing 	to 	provide 	the 	Modesto
Teachers 	Association with 	all 	relevant 	information 	and
documents 	needed 	by 	the 	Association 	to 	prosecute 	contract
grievances 	on 	behalf 	of 	certificated 	employees 	of 	the 	District.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(a) 	Upon 	request 	by 	the 	Modesto 	Teachers 	Association.
provide 	to 	the 	Association 	the 	rating 	sheets 	of 	all 	applicants
for 	the 	positions 	to 	which Merle 	Benneche 	and 	Gladys 	Ahart
applied 	to 	transfer 	in 	the 	1981-82 	academic 	year. 	provided
that: 	the 	District 	may 	delete 	the 	names 	of 	the 	raters; 	and
provided 	also 	that 	for 	the 	rating 	sheets 	of 	applicants 	other
than 	Benneche 	and 	Ahart. 	the 	District 	may 	conceal 	the 	names 	of
the 	applicants 	before 	disclosing 	the 	rating 	sheets 	to 	the
Association.
(b) 	If 	the 	Modesto 	Teachers 	Association 	seeks 	to
reopen 	one 	or 	more 	of 	the 	grievances 	filed 	by Merle 	Benneche
and 	Gladys 	Ahart. 	or 	seeks 	to 	reopen 	the 	arbitration 	proceeding
concerning 	those 	grievances. 	refrain 	from 	interposing 	any
procedural 	objection 	(timeliness. 	res 	judicata 	or 	the 	like) 	to
the 	reopening 	sought 	by 	the 	Association.
Dated: 	MODESTO CITY 	SCHOOLS 	AND HIGH
SCHOOL 	DISTRICT
By: Authorized Agent
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
MATERIAL.

STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD a
MODESTO 	TEACHERS 	ASSOCIATION,
Charging 	Party,
v.
MODESTO 	CITY 	SCHOOLS 	AND
HIGH 	SCHOOL 	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
_________________ )
Unfair 	Practice
Case 	No. 	S-CE-498
PROPOSED DEC IS ION.
(5/3/83)
Appearances: 	Kenneth 	w. 	Burt, 	attorney, 	for 	the 	charging 	party
Modesto 	Teachers 	Association; 	Keith 	V. 	Breon 	and 	Mark 	Goodson
(Breon, 	Galgani, 	Godino 	& O'Donnell) 	for 	the 	respondent 	Modesto
City 	Schools 	and 	High 	School 	District.
Before: 	Martin 	Fassler, 	Administrative 	Law 	Judge.
PROCEDURAL 	HISTORY
On April 	30, 	1982, 	the 	Modesto 	Teachers 	Association
(hereafter 	MTA 	or 	Association) 	filed 	this 	unfair 	practice
charge 	against 	the 	Modesto 	City 	Schools 	and 	High 	School
District 	(hereafter 	District). 	The 	charge 	alleged 	that 	the
District 	had 	violated 	section 	3543.5 	subsections 	(a) 	through
(e) 	of 	the 	Educational 	Employment 	Relations 	Act 	(hereafter 	EERA
or 	Act)l 	by 	refusing 	to 	provide 	the 	MTA with 	information 	and
documents 	relating 	to 	grievances 	in 	which 	the 	MTA 	was
representing 	its 	members. 	Each 	of 	the 	grievances 	concerned 	the
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	and 	is 	administered 	by 	the 	Public 	Employment 	Relations

selection 	of 	a 	teacher 	to 	fill 	a 	vacant 	position 	in 	a 	District
school. 	In 	each 	grievance, 	the 	Association 	was 	acting 	on
behalf 	of 	an 	Association 	member 	who 	had 	applied 	for 	but 	who 	had
not 	been 	appointed 	to 	the 	vacant 	teaching 	position.2
Board 	(hereafter 	PERB 	or 	Board). 	Unless 	otherwise 	indicated,
all 	statutory 	references 	are 	to 	the 	Government 	Code. 	Pertinent
portions 	of 	section 	3543.5 	are 	set 	out 	below:
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.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
(d) 	Dominate 	or 	interfere 	with 	the
formation 	or 	administration 	of 	any 	employee
organization~ 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in 	any 	way 	encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
(e) 	Refuse 	to 	participate 	in 	good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in 	Article 	9
(commencing 	with 	Section 	3548).
2The 	charge 	also 	alleged 	that 	the 	District 	had 	violated
the 	EERA by 	refusing 	to 	negotiate 	with 	the 	Association 	about
certain 	changes 	of 	District 	policy. 	However, 	those 	allegations
were 	resolved 	b¥ 	a 	settlement 	reached 	by 	th~ 	District 	and 	the
Association 	during 	the 	hearing. 	They 	are 	no 	longer 	pending
before 	the 	Public 	Employment 	Relations· Board 	(PERB 	or 	Board)
and 	will 	not 	be 	referred 	to 	hereafter.
2

On 	June 	9, 	1982, 	a 	complaint 	was 	issued. 	On 	June 	30, 	1982,
the 	District 	filed 	its 	answer, 	admitting 	certain 	allegations 	of
the 	charge, 	denying 	others, 	and 	raising 	affirmative 	defenses
with 	respect 	to 	the 	allegedly 	illegal withholding 	of
information 	and 	documents 	sought 	by 	the 	Association. 	These
defenses, 	including 	the 	principal 	claim 	that 	the 	information
sought 	was 	confidential, 	will 	be 	considered 	below.
An 	informal 	settlement 	conference 	was 	held 	on 	July 	22,
1982, 	but 	the 	dispute 	was 	not 	resolved.
The 	formal 	hearing 	on 	the 	charge 	took 	place 	in 	Modesto 	on
November 	8, 	1982. 	Post-hearing 	briefs 	were 	submitted 	by 	each
party 	on 	January 	31, 	1983. 	On 	March 	11, 	1983, 	by 	order 	of 	the
chief 	administrative 	law 	judge, 	this 	case 	was 	reassigned 	to 	the
undersigned 	for 	decision.3
At 	the 	request 	of 	the 	charging 	party, 	the 	parties 	were
permitted 	to 	submit 	reply 	briefs 	on April 	11, 	1983, 	and 	the
matter 	was 	submitted 	at 	that 	time.
FINDINGS 	OF 	FACT
The 	Modesto 	Teachers 	Association 	is 	the 	exclusive
representative 	of 	the 	certificated 	employees 	of 	the 	District.
On 	May 	4, 	1981, 	the 	Association 	and 	the 	District 	entered 	into 	a
collective 	bargaining 	agreement 	to 	be 	in 	effect 	from 	that 	date
until 	June 	30, 	1982.
3see 	California Administrative 	Code, 	title 	8, 	part 	III,
section 	32168(b).
3

Article 	XIII 	of 	the 	agreement 	is 	entitled 	"Transfers." 	It
includes 	provisions 	for 	transfers 	initiated 	by 	the 	District,
because 	of 	declining 	enrollment 	or 	for 	other 	reasons: 	and 	for
transfers 	sought 	by 	District 	employees 	to 	vacancies 	announced
by 	the 	District. 	The 	section 	concerning 	employee-initiated
transfers 	sets 	out 	certain 	priorities 	(e.g., 	employees
currently 	assigned 	to 	the 	school 	in 	which 	the 	vacancy 	occurs
have 	high 	priority: 	probationary 	employees 	have 	low 	priority).
It 	also 	includes 	the 	following 	two 	paragraphs 	describing 	the
procedures 	to 	be 	followed 	when 	the 	District 	is 	called 	on 	to
choose 	among 	competing 	applicants 	with 	equal priority 	rights:
SELECTION 	OF 	EXISTING EMPLOYEES
The 	job 	related 	selection 	criteria 	shall 	be
established 	by 	the 	District 	prior 	to 	the
initiation 	of 	the 	selection process. 	These
criteria 	shall 	be 	reasonably 	related 	to 	the
expected 	performance 	for 	the 	position. 	Each
candidate 	is 	to 	be 	rated 	in 	writing 	in 	terms
of 	the 	selection 	criteria 	during 	the
selection 	process.
Employees 	not 	selected, 	upon 	written 	request
shall 	receive 	an 	explanation of 	why 	they 	were
not 	selected.
The 	portion 	of 	Article 	XIII 	quoted 	above 	(as 	well 	as
several 	other 	provisions 	of 	the 	agreement 	which 	are 	not
relevant 	here) 	was 	drafted 	by 	a 	four-person 	sub-committee 	of
the 	District 	and 	MTA 	negotiating 	teams. 	This 	working 	group
was 	established 	by 	the 	District 	and 	the 	Association 	after 	two
years 	of 	negotiations 	to 	resolve 	issues 	on 	which 	the 	parties
were 	not 	yet 	in 	agreement. 	The 	sub-committee 	consisted 	of
4

Frank Vandervort 	and 	John Walther 	of 	the 	MTA, 	and
Superintendent 	Robert 	Otto 	and 	Vice-principal 	Don 	Champlin 	of
the 	District.
Vandervort, 	whose 	testimony 	is 	the 	basis 	of 	the 	findings
regarding 	the 	sub-committee's 	work, 	was 	chief 	negotiator 	for
the 	MTA 	for 	the 	three-and-one-half 	years 	preceding 	his
testimony, 	and 	had 	been 	a 	member 	of 	the 	Association's
negotiating 	team 	since 	1969. 	Walther 	was 	president 	of 	the 	MTA.
According 	to 	Vandervort, 	the 	MTA 	believed 	that 	the 	District
had, 	in 	previous 	years, 	transferred 	unqualified 	teachers 	into
teaching 	vacancies. 	For 	that 	reason, 	he 	said, 	the 	MTA 	wanted
to 	include 	in 	the 	new 	contract 	transfer 	provisions 	which 	would
require 	the 	District 	to 	use 	job-related 	criteria 	for 	selection
of 	teachers 	competing 	to 	fill 	a 	vacant 	position.
The 	two 	paragraphs 	quoted 	above 	(beginning 	with 	the
reference 	to 	"job 	related 	selection 	cri~eria"), 	were 	developed
by 	the 	two-on-two 	working 	group 	to 	achieve 	that 	purpose,
Vandervort 	said.
Vandervort 	testified 	that 	during 	the 	discussions 	among 	the
four-person 	subcommittee, 	there 	was 	no 	discussion 	of
"confidentiality" 	of 	the 	ratings 	for 	applicants 	seeking 	to
transfer 	from 	one 	school 	to 	another 	within 	the 	District
(hearing 	transcript, 	pp. 	114, 	117).4 	He 	testified 	that 	he
4References 	to 	the 	transcript 	of 	the 	hearing 	cited 	in
this 	decision 	will 	hereinafter 	take 	the 	form 	"TR: 	, 	with 	the
page 	number (s) 	following 	the 	abbreviation 	"TR."
5

did 	not 	remember 	any 	statement 	being,made 	during 	those 	sessions
about 	whether 	the 	sole 	explanation 	to 	be 	given 	to 	an
unsuccessful 	transfer 	applicant 	(explaining 	why 	he 	or 	she 	was
not 	chosen 	to 	fill 	the 	vacancy) 	would 	be 	given 	in 	writing.
After 	the 	members 	of 	the 	"two-on-two" 	committee 	reached
agreement 	on 	the 	provisions 	of 	the 	"Transfer" 	article 	(and 	on
other 	provisions), 	the 	agreed-upon 	language 	was 	presented 	to
the 	larger 	negotiating 	teams 	for 	the 	Association 	and 	the
District. 	This 	larger 	group 	included 	the 	District's 	Attorney
Keith 	Breon 	(counsel 	for 	the 	District 	during 	this 	hearing) 	and
Personnel 	Director 	Melvin 	Jennings; 	Association 	Executive
Director 	Kenneth 	Burt 	(and 	its 	counsel 	during 	this 	hearing) 	and
another 	Association 	member 	not 	identified. 	Vandervort
testified 	that 	the 	question 	of 	the 	confidentiality of 	the
written 	ratings 	of 	transfer 	applicants 	was 	not 	discussed 	within
this 	larger 	group 	prior 	to 	agreement 	on 	the 	full 	contract
(TR: 118) .
Vandervort 	testified 	that 	Jennings 	was 	not 	present 	for 	any
of 	the 	"two-on-two" 	meetings 	(TR: 	118).
Jennings, 	who 	was 	called 	as 	the 	District's 	only 	witness,
testified 	that 	it 	was 	the 	intention of 	the 	parties, 	in 	agreeing
to 	the 	pertinent 	provision 	of 	the 	transfer 	article, 	that 	the
written 	ratings 	of 	the 	applicants 	be 	kept 	confidential. 	He
testified 	his 	belief 	was 	based 	on 	five 	factors: 	(1) 	the 	absence
of 	any 	provision 	in 	the 	contract 	calling 	for 	written 	disclosure
6

of 	the 	ratings; 	(2) 	statements 	made 	to 	him 	by 	Superintendent
Otto 	about 	events 	at 	negotiating 	sessions 	(presumably, 	the
"two-on-two" 	meetings) 	at 	which 	Otto, 	but 	not 	Jennings, 	was 	a
participant; 	(3) 	"twenty 	years 	of 	personnel 	experience;"
(4) 	statements 	made 	to 	him 	by 	Otto, 	after 	the 	signing 	of 	the
contract, 	about 	the 	District's 	plans 	for 	implementation 	of 	the
transfer 	provisions; 	and 	(5), 	other 	conversations 	"prior 	to,
during, 	and 	after 	the 	signing 	of 	this 	contract 	in 	1980."
(TR:79, 	87, 	90-92, 	95-96.)
Jennings 	was 	unable 	to 	identify 	with 	any 	particularity 	the
dates, 	places 	of, 	or 	any 	of 	the 	participants 	in, 	any 	of 	the
latter 	conversations 	on 	which 	he 	said 	he 	relied. 	Also,
Jennings 	did 	not 	explain 	his 	reference 	to 	"twenty 	years 	of
personnel experience."
Jennings 	acknowledged 	that 	he 	did 	not 	recall 	whether 	he 	was
present 	for 	any 	bargaining 	sessions 	at 	which 	the 	negotiators
discussed 	contract 	language 	regarding 	explanations 	to 	be 	given
to 	unsuccessful 	transfer 	applicants. 	Nor 	was 	he 	able 	to
testify 	about 	whether 	he 	was 	present 	at 	any 	negotiating 	session
at 	which 	the 	"confidentiality" 	of 	written 	ratings 	was 	discussed
(TR: 8 9 , 	9 2 ) .
Jennings 	testified 	that 	the 	purpose 	of 	the 	contract
provision 	which 	provides 	that 	an 	unsuccessful 	applicant 	may
receive 	an 	explanation 	of 	why 	he 	or 	she 	was 	not 	chosen 	for 	the
open 	position 	was 	to 	give 	the 	applicant 	information 	about 	the
7

areas 	in 	which 	he 	or 	she 	was 	found 	deficient, 	and 	to 	encourage
the 	applicant 	to 	improve 	in 	those 	areas 	of 	weakness.
Jennings' 	testimony 	about 	this 	subject 	might 	conceivably 	be
helpful 	in 	a 	determination 	of 	the 	District's 	plans 	as 	it 	began
to 	implement 	the 	language 	of 	the 	contract. 	However, 	since
Jennings 	was 	not 	present 	for 	any 	of 	the 	meetings 	at 	which 	the
contract 	language 	was 	developed, 	his 	testimony 	is 	of 	no 	value
in 	determining 	the 	common 	intent 	of 	the 	parties 	in 	agreeing 	on
the 	relevant 	contract 	language.
Jennings 	did 	not 	contradict 	any 	of Vandervort's
straightforward 	factual 	testimony 	about 	the 	development 	of 	the
transfer 	language 	at 	issue 	here. 	Vandervort•~ 	testimony 	is
fully 	credited 	on 	this 	point.
The 	District, 	in 	its 	post-hearing 	brief, 	notes 	that 	several
other 	portions 	of 	Article 	XIII 	require 	the 	District 	to provide
to 	employees 	written 	explanations 	of 	District 	decisions .to
implement 	involuntary 	teacher 	assignment 	changes. 	One 	such
provision 	refers 	to 	involuntary 	transfer 	of 	an 	employee 	from
one 	school 	to 	another. 	The 	other 	refers 	to 	an 	involuntary
reassignment 	in 	which 	a 	teacher 	is 	assigned 	to 	work 	at 	a 	new
grade 	level 	(for 	elementary 	school 	teachers) 	or 	to 	a 	different
department 	or 	teaching 	assignment 	(for 	teachers 	in 	grades 	7-12).
The 	District 	argues 	that 	references 	in 	the 	contract 	to
written 	explanations 	or 	statements 	of 	reasons 	by 	the 	District
in 	other 	contexts 	support _the 	conclusion 	that, 	in 	the
8

provisions 	at 	issue 	here, 	the 	Association 	agreed 	to 	accept
something 	less 	than 	written 	statements 	of 	reasons.
That 	evidence, 	however, 	is 	insufficient 	to 	support 	the
finding 	suggested. 	Inclusion 	of 	a 	contract 	provision 	in 	one
context, 	and 	its 	exclusion 	in 	another, 	does 	not 	itself 	support
a 	finding 	that 	the 	exclusion 	in 	the 	second 	instance 	was
intentional, 	or 	equivalent 	to 	a 	waiver 	of 	a 	right. 	To 	support
such 	a 	conclusion, 	a 	contract 	must 	have 	an 	express 	statement,
or 	the 	conclusion must 	be 	the 	necessary 	implication 	of 	contract
provisipns. 	Los 	Angeles 	Community 	coilege 	District 	(10/18/82)
PERB 	Decision 	No. 	252.
More 	importantly, 	the 	District 	had 	available 	to 	it 	evidence
which 	might 	have 	been 	far 	more 	persuasive 	on 	this 	point, 	and
chose 	not 	to 	present 	that 	evidence. 	The 	District 	could 	have
presented 	testimony 	by 	either 	of 	the 	two 	District
representatives 	on 	the 	"two-on-two" 	subcommittee:
superintendent 	Otto 	and 	vice-principal 	Champlin. 	The 	District
chose 	to 	call 	neither 	as 	a 	witness.5 	In 	view 	of 	the
District's 	failure 	to present 	this 	stronger 	evidence, 	it 	would
be 	inappropriate 	to 	make 	the 	finding 	urged 	by 	the 	District.
Evidence 	Code 	section 	412.
Additionally, 	the 	contract 	calls 	for 	a 	written 	response 	by
the 	District 	at 	the 	first 	and 	second 	steps 	of 	the 	grievance
5The 	District 	did 	not 	indicate 	that 	either 	person 	was
unavailable 	to 	testify.
9

procedure. 	Since 	a 	dispute 	about 	application of 	the 	transfer
procedure 	is 	a 	grievable 	subject 	(according 	to 	the 	contract's
grievance 	article), 	the 	inclusion 	of 	those 	provisions 	supports
an 	inference 	that 	documentation 	at 	these 	stages 	would 	be 	a
reasonable 	expectation 	of 	an 	unsuccessful 	transfer 	applicant.
The 	grievance 	procedure 	is 	described 	on 	pp. 	20-21 	below.
The 	Transfer 	Applications 	of Merle 	Benneche 	and 	Gladys 	Ahart.
At 	various 	times 	prior 	to 	October 	1981, 	Merle 	Benneche, 	a
teacher 	employed 	by 	the 	District, 	applied 	for 	seven 	different
teaching 	positions 	at 	five 	schools 	within 	the 	District.6 	He
was 	interviewed 	by 	committees 	at 	four 	of 	the 	five 	schools, 	but
was 	not 	offered 	any 	of 	the 	jobs 	for 	which 	he 	applied.
During 	the 	same 	period 	of 	time, 	Gladys 	Ahart, 	a 	teacher
employed 	by 	the 	District 	for 	14 	years, 	applied 	for 	vacant
positions 	at 	5 	schools.? 	She 	was 	interviewed 	for 	each 	of 	the
five 	positions, 	but 	was 	not 	offered 	any 	of 	the 	positions 	for
which 	she 	had 	applied.8
6Benneche 	applied 	for 	the 	following 	positions:
Bret 	Harte 	School 	(3rd/4th 	grade 	combinatiqn, 	4th/5th 	grade
combination); 	Burbank 	School 	(5th/6th 	grade 	combination);
Mark 	Twain 	Junior 	High 	School 	(Reading/English/Math/Social
Science 	instructor); 	Franklin 	School 	(5th/6th 	grade 	combination
and 	3rd 	grade); 	and 	Fairview 	School 	(4th-6th 	grade 	combination).
7Ahart 	applied 	for 	the 	following 	positions:
Elihu Beard 	School 	(3rd/4th 	grade 	combination); 	John 	Muir
School 	(1st 	grade); 	Catherine 	Evert 	School 	(1st 	grade);
Lakewood 	School 	(1st/2nd 	grade 	combination); 	and 	El 	Vista
School 	(6th 	grade).
8The 	MTA 	charge 	also 	alleges 	District 	violations 	of 	the
10

The 	Selection 	Process 	for 	the 	Vacancies.
The 	contract 	itself 	says 	nothing 	about 	the 	selection
process, 	aside 	from 	its 	reference 	to 	"job-related 	selection
criteria." 	There 	is 	only 	sketchy 	evidence 	about 	the 	procedures
which 	were 	used 	to 	select 	teachers 	to 	fill 	the 	12 	positions 	for
which 	Benneche 	and 	Ahart 	applied.
Based 	on 	the 	limited 	evidence 	available, 	it 	is 	found 	that
the 	procedures 	were 	the 	following. 	The 	principal of 	each
school 	with 	a 	vacancy 	prepared 	a 	series 	of 	criteria 	to be 	used
for 	each 	position, 	and 	{for 	each 	candidate), 	a 	rating 	sheet
listing 	each 	of 	the 	criteria. 	The 	criteria 	for 	the 	5th/6th
grade 	combination 	position 	at 	the 	Burbank 	School, 	for 	which
Benneche 	applied, 	is 	typical. 	The 	criteria 	listed 	were:
1. 	A well-balanced 	staff 	{gender, 	age,
experiences, 	etc.).
2. 	Past 	service 	to 	school 	{traffic, 	chorus,
assistant 	principal, 	school 	and 	District
committees).
3. 	Past 	service 	in 	building 	community 	relations
{parent group 	activities, 	school 	and 	P.T.A.
newsletter).
4. 	Attitude 	toward 	professional 	development
{attendance 	to 	and 	implementation 	of
curriculum) •
duty 	to 	provide 	information 	to 	the 	Association 	in 	connection
with 	the 	transfer 	application 	of 	Debbie 	Chaplin. 	However, 	the
Association 	offered 	no 	evidence 	with 	respect 	to 	Chaplin's
application 	or 	grievance. 	Insofar 	as 	the 	charge 	alleges
violations 	of 	the 	EERA 	by 	the 	District's 	conduct 	in 	connection
with 	a 	grievance 	filed 	regarding 	Chaplin's 	transfer, 	that
portion 	of 	the 	charge 	will 	be 	dismissed.
11

5. 	Knowledge 	and 	implementation 	skills 	of
instructional practices 	(diagnostic/
prescriptive 	teacher).
6. 	Ability 	to 	manage 	a 	classroom 	(organization,
student 	discipline, 	classroom 	control,
assertive 	discipline).
7. 	Ability 	to 	communicate 	professionally 	with
administration, 	teachers, 	and 	parents.
8. 	Willingness 	to 	mainstream Special 	Education
students.
9. 	School 	seniority.
10. 	District 	seniority.
The 	form 	used 	indicated 	that 	different 	weight 	would 	be
given 	to 	the 	ratings 	in 	the 	different 	categories. 	A weight
factor, 	of 	9, 	for 	example, 	was 	to 	be 	given 	to 	"knowledge 	and
implementation 	skills 	of 	instructional 	practices," 	while 	a
weight 	of 	4 was 	to 	be 	given 	to 	"past 	service 	to 	school" 	and 	a
weight of 	1 	each 	was 	to 	be 	given 	to 	school 	seniority 	and
district 	seniority.
Rating 	sheets 	used 	at 	other 	schools 	had 	different 	rating
categories 	and 	different 	weights.9
None 	of 	the 	rating 	sheets 	includes 	any 	reference 	to
"confidentiality" 	of 	the 	ratings 	to 	be 	given. 	Nor, 	for 	that
matter, 	do 	any 	of 	the 	rating 	sheets 	include 	any 	statement 	at
all 	about 	the 	use 	to 	which 	the 	rating 	sheets 	will 	be 	put.
9one 	rating 	sheet 	called 	for 	ratings 	on 	"learning
environment" 	and 	"classroom control." 	Another 	had 	categories
"demonstrates 	ability 	to 	follow 	chain 	of 	command" 	and 	"good
recommendations 	from 	prior 	employers."
12

The 	rating 	sheets 	were 	apparently 	used 	by 	committees
created 	to 	conduct 	interviews 	of 	applicants 	for 	each 	position.
Not 	every 	applicant 	was 	interviewed. 	The 	personnel office 	of
the 	District, 	which 	received 	all 	applications, 	"screened"
certain 	applicants, 	and 	sent 	to 	the 	principal of 	the 	school 	in
which 	there 	was 	a 	vacancy 	the 	applicatons 	of 	those 	persons
considered 	suitably 	qualified. 	The 	principal 	could 	then 	decide
which 	of 	these 	applicants 	to 	interview 	for 	the 	vacant 	position.
Each 	principal 	selected 	a 	committee 	to 	conduct 	an
interview, 	to 	rate 	applicants 	in 	the 	various 	job-related
criteria, 	and 	to 	then 	make 	a 	hiring 	recommendation 	to 	the
principal. 	The 	committee 	members 	then 	assigned 	numerical or
other 	ratings 	to 	each 	applicant 	for 	each 	criteria. 	The
principal 	rejected 	or 	accepted 	this 	recommendation 	as 	he 	or 	she
desired, 	and 	then 	made 	a 	hiring 	recommendation 	to 	Personnel
Director 	Jennings. 	In 	each 	of 	the 	transfers 	which 	underlie
these 	charges, 	the 	principals 	accepted 	the 	recommendations 	of
the 	raters 	(TR:110).
There 	is 	almost 	no 	evidence 	about 	the 	composition 	or 	the
workings 	of 	the 	rating 	committees.10 	Specifically, 	there 	is
an 	absence 	of 	evidence 	regarding: 	the 	qualifications 	required
of 	committee 	members; 	the 	number 	of 	persons 	on 	each 	committee;
lONeither 	party 	called 	as 	a 	witness 	a 	principal or 	any
person 	who 	had 	participated 	in 	the 	rating 	process 	as 	a
committee 	member.
13

whether 	each 	committee 	was 	limited 	to 	District 	employees, 	or 	to
certificated 	District 	employees, 	or 	to 	District 	employees
employed 	in 	the 	school 	which 	had 	the 	vacancy. 	Nor 	was 	there
any 	evidence 	of 	whether 	there 	was 	any 	effort 	to 	exclude, 	or 	to
include, 	persons 	who 	were 	familiar 	with 	the 	work 	history 	of 	the
applicants; 	nor 	evidence 	of 	what 	instructions 	were 	given 	to 	the
committee 	members 	prior 	to 	their 	participation 	in 	the 	rating
process.11 	There 	was 	no 	evidence 	regarding 	the 	length 	of 	the
interviews, 	or 	the 	questions 	asked 	of 	any 	applicant. 	There 	was
no 	evidence 	about 	whether 	the 	committee 	members 	had 	any
information 	about 	the 	applicants 	other 	than 	the 	answers 	given
by 	the 	applicants 	during 	the 	interviews.12
The 	only 	evidence 	offered 	by 	the 	District 	regarding 	the
.purported 	"confidentiality" 	of 	the 	ratings 	given 	by 	the
committee 	members 	was 	the 	following 	testimony 	by 	Jennings:
llAccording 	to 	Personnel 	Director 	Jennings, 	the 	District
had 	"guidelines" 	which 	required 	the 	principal 	to 	select 	for 	the
committee 	at 	least 	three 	persons 	who 	were 	knowledgeable 	about
the 	position 	to 	be 	filled. 	But, 	he 	said, 	a 	principal 	could
depart 	from 	those 	"guidelines" 	if 	three 	people 	familiar 	with
the 	position 	were 	not 	available. 	No 	"guidelines" 	were 	offered
into 	evidence, 	and 	there 	was 	no 	other 	testimony 	about 	them.
The 	contract 	itself 	does 	not 	refer 	to 	"guidelines" 	for 	the
selection 	process.
12As 	a 	specific 	example, 	there 	was 	no 	evidence 	about 	how
the 	raters 	at 	the 	Burbank 	School 	determined 	what 	ratings 	to
give 	to 	applicants 	on 	criteria 	like: 	"ability 	to 	manage 	a
classroom," 	or 	"ability 	to 	communicate 	professionally 	with
administration, 	teachers 	and 	parents." 	Both 	of 	these 	are
criteria used 	to 	rate 	applicants 	for 	the 	5th/6th grade
combination 	position.
14

After 	negotiating 	this 	contract, 	we 	had 	to
make 	sure 	that 	the 	administrators 	did, 	in
fact, 	understand 	the 	intent 	of 	it. 	So,
whenever 	we 	went 	through 	and 	showed 	them how
to 	develop 	criteria 	based 	on 	the 	functions
of 	that 	job, 	we 	spent 	a 	great 	deal 	of 	time
trying 	to 	insure 	that 	they 	did 	get 	input
from 	the 	teachers. 	And 	as 	a 	part 	of 	gaining
that 	input, 	we 	wanted 	them 	to 	make 	sure 	that
they 	let 	the 	teachers 	know 	that
participating 	in 	the 	selection 	committee,
that 	anything 	that 	was 	said 	in 	the
committee, 	anything 	that 	was 	written 	down
was 	highly 	confidential 	and 	that 	would 	be
protected 	(TR: 	77).
Accepting 	this 	testimony 	as 	accurate, 	it 	is 	insufficient
factual 	basis 	for 	a 	finding 	that 	as 	a 	general policy, 	the
participants 	in 	the 	selection 	process--either 	applicants 	or
raters--were 	informed 	or 	promised 	that 	comments 	made 	in 	the
interviews, 	or 	written 	comments 	based 	on 	statements 	made 	in 	the
interviews, 	would 	be 	treated 	as 	"confidential" 	or 	privileged 	in
any 	way.
The 	testimony 	is 	insufficient 	for 	a 	number 	of 	reasons.
First, 	it 	says 	nothing 	of 	any 	assurances 	which 	might 	have 	been
given 	to 	applicants. 	Second, 	insofar 	as 	the 	testimony 	applies
to 	"confidentiality" 	of 	statements 	writ ten 	by 	raters, 	Jennings
describes 	only 	what 	somebody 	from 	the 	District 	administrative
staff 	told 	school 	administrators 	to 	tell 	raters. 	As 	noted
above, 	the 	District 	chose 	not 	to 	present 	any 	testimony 	by
either 	a 	school principal 	or 	a 	committee 	member/rater. 	Thus,
there 	is 	no 	evidence 	that 	any 	principal or 	other 	District 	agent
complied 	with 	these 	District 	guidelines; 	much 	less 	that 	in 	any
15

single 	instance 	there 	was 	a 	promise 	to 	raters 	of
"confidentiality" 	with 	respect 	to 	ratings 	or 	comments 	on 	rating
sheets. 	That 	is, 	there 	is 	no 	evidence 	about 	whether, 	or 	how,
the 	District's 	instructions 	to 	its 	principals 	were 	carried 	out.
Requests 	by Benneche 	and 	Ahart 	for 	Information.
On 	October 	15, 	1981, 	Benneche 	and 	Ahart 	sent 	letters 	to 	the
principals 	of 	the 	schools 	to 	which 	each, 	respectively, 	had
sought 	to 	transfer. 	Benneche 	sent 	four 	letters, 	Ahart 	sent
five. 	Except 	for 	the 	names 	of 	the 	principals, 	the 	schools, 	and
descriptions 	of 	the 	jobs 	sought, 	the 	letters 	were 	identical.
Each 	letter 	referred 	to 	Article 	XIII 	of 	the 	collective
bargaining 	agreement, 	and 	to 	the 	provision 	giving 	unsuccessful
transfer 	applicants 	the 	right 	to 	receive 	an 	explanation of 	why
they 	were 	not 	selected. 	In 	addition, 	each 	letter 	included 	the
following 	request:
Please 	consider 	this 	letter 	my 	written
request 	to 	receive 	an 	explanation 	why 	I 	was
not 	selected 	for 	the 	position 	at 	[position
and 	school 	identified].
Please 	provide 	me 	with 	the 	specific 	written
reasons 	why 	I 	was 	not 	selected.
In 	addition, 	the 	Collective 	Bargaining
Agreement 	requires 	that 	a 	job 	related
selection 	criteria 	be 	established 	prior 	to
the 	selection 	process 	and 	that 	each
candidate 	be 	rated 	in 	writing 	on 	this
selection 	criteria. 	Please 	provide 	me 	with
a 	copy 	of 	the 	rating 	for 	each 	candidate.
On 	November 	10 	and 	November 	30, 	Benneche 	sent 	letters 	with
essentially 	identical 	requests 	to 	principals 	of 	two 	additional
16

schools 	to 	which 	he 	had 	applied, 	unsuccessfully, 	for 	transfer.
These 	letters 	also 	asked 	for 	certain 	additional 	information,
none 	of 	which 	is 	relevant 	here.
In 	the 	last 	week 	of 	October, 	all 	but 	one 	of 	the 	school
principals 	to 	whom 	letters 	were 	sent 	on 	October 	15 	sent 	letters
to 	Benneche 	and 	Ahart 	setting 	dates 	and 	times 	for 	apppointments
at 	which 	the 	principal 	wguld 	provide 	an 	explanation 	to Ahart 	or
Benneche 	(as 	appropriate) 	of why 	she 	or 	he 	was 	not 	selected 	for
the 	position 	in 	question. 	All of 	these 	eight 	appointments 	were
scheduled 	for 	the 	afternoon 	of 	November 	2, 	beginning 	at
3:00 	p.m., 	at 	(30-minute 	intervals 	for 	Ahart, 	and 	at 	45-minute
intervals 	for 	Benneche.13 	Each 	was 	scheduled 	to 	take 	place
at 	the 	school 	in 	question, 	in 	various 	parts 	of 	Modesto.
Neither 	Ahart 	nor 	Benneche 	attended 	any 	of 	the 	meetings
offered 	for 	November 	2. 	The MTA 	informed 	the 	District 	that 	the
scheduling 	made 	attendance 	of 	the 	two 	teachers 	and 	the 	MTA
representative 	impossible. 	Ahart, 	however, 	did 	meet 	with 	each
of 	the 	five 	principals 	of 	the 	schools 	to 	which 	she 	applied, 	pn
November 	19.14
13Jennings 	testified 	that 	one 	letter, 	which 	purports 	to
schedule 	an 	interview 	for 	Ahart 	with 	the 	Elihu Beard 	School
principal 	for 	3:00 	p.m. 	on 	November 	3, 	was 	intended 	to 	schedule
an 	appointment 	for 	3:00 	p.m. 	on 	November 	2.
14It 	is 	not 	clear 	from 	the 	evidence 	whether 	this 	meetin~
was 	the 	District's 	response 	to 	Ahart's 	letters, 	or 	whether 	1t
was 	intended 	to 	be 	Step 	I 	of 	the 	grievance 	procedure. 	The
grievance 	procedure 	is 	described 	in 	the 	text, 	infra.
17

At 	this 	meeting, 	Kathleen 	Hackett, 	chairperson of 	the
Association's 	grievance 	committee, 	acting 	as 	Ahart's
representative, 	asked 	each 	of 	the 	five 	principals 	for 	the
rating 	sheets 	for 	each 	applicant 	for 	the 	positions 	for 	which
Ahart 	had 	applied. 	Each 	of 	the 	principals 	refused 	to 	turn 	over
the 	rating 	sheets 	to 	Hackett 	and 	Ahart. 	Some 	of 	the 	principals
.. cited 	"confidentiality" 	of 	the 	sheets 	as 	their 	reason, 	while
other 	principals 	gave 	no 	reason 	for 	their 	refusals, 	according
to 	the 	uncontradicted 	testimony 	of 	Ahart 	and 	Hackett 	(TR: 	42,
59) •
The 	Grievances.
At 	various 	times 	in 	November 	1981, 	Benneche 	and 	Ahart 	each
filed 	a 	series 	of 	grievances 	against 	the 	District. 	Each
grievance 	concerned 	one 	school 	to 	which 	Ahart 	or 	Benneche 	had
applied.15 	The 	grievances 	were 	identical 	in 	substance,
except 	for 	minor 	variations 	in 	the 	wording 	of 	a 	few 	grievances
to 	refer 	to 	specific 	events 	at 	certain 	schools.
Each 	grievance 	alleged 	that 	the 	District 	had 	violated
Article 	XIII 	of 	the 	agreement, 	regarding 	transfers 	of
certificated 	employees. 	Specifically, 	the 	grievances 	alleged
that:
The 	job criteria was 	not 	established
properly 	in 	writing 	prior 	to 	the 	initiation
15The 	grievance 	filed 	by 	Benneche 	concerning 	the
Bret 	Harte 	School 	referred 	to 	both 	school 	vacancies 	to 	which
Benneche 	had 	applied, 	neither 	of 	which 	he 	was 	chosen 	for.
18

process. 	The 	criteria 	is 	(sic) 	not
reasonably 	related 	to 	the 	expected
performance. 	All 	candidates 	were 	not
properly 	rated 	in 	writing. 	The 	interview
procedure 	was 	improper 	and 	discriminatory.
The 	same 	is 	true 	for 	the 	selection 	process.
Each 	grievance 	also 	included 	the 	following:
The 	following 	information 	is 	requested.in
writing:
1. 	Who 	was 	selected 	for 	the 	position? What
is 	this 	person's 	status 	(permanent,
probationary, 	temporary)?
2. 	Please 	provide 	a 	copy 	of 	the 	job 	related
criteria. 	When 	was 	this 	criteria 	placed
in 	writing? 	How 	was 	it 	arrived 	at? 	Who
participated 	in 	development 	of 	the
criteria?
3. 	Please 	provide 	the 	rating 	sheet(s) 	for
each 	candidate.
4. 	In 	addition, 	please 	provide 	the
following 	in 	writing:
What 	were 	the 	questions 	and 	procedures
used 	for 	the 	interviews? 	Who 	conducted
the 	interviews, 	who 	was 	interviewed?
How 	were 	the 	persons 	rated? 	Who 	rated
the 	persons 	interviewed? 	What 	was 	the
rating 	each 	person 	received? 	What 	was
the 	experience 	and 	qualifications 	for
each 	person 	interviewed? 	When 	(time 	and
date) 	did 	each 	int~rview 	take 	place?
5. 	What 	is 	the 	basis 	for 	not 	transferring
the 	grievant 	to 	the 	position 	requested?
The 	contract 	creates 	a 	four-step 	grievance 	procedure.
Step 	I 	consists 	of 	submission 	of 	a 	written 	grievance 	to 	the
appropriate 	building 	administrator. 	The 	building 	administrator
is 	required 	to 	present 	a 	written 	decision 	to 	the 	grievant
within 	10 	days 	after 	receipt 	of 	the 	written 	grievance. 	Step 	II
19

consists 	of 	an 	appeal 	to 	the 	superintendent of 	schools 	from 	the
decision 	by 	the 	building 	admi~istrator. 	Again, 	a_ written
response 	to 	the 	grievance 	is 	require<:1. 	Step 	III 	consists 	of 	a
hearing 	before 	an 	arbitrator, 	and 	issuance 	of 	an 	advisory
opinion 	by 	the 	arbitrator. 	If 	the 	advisory 	decision 	is 	adverse
to 	the 	District, 	the 	superintendent 	of 	schools 	may 	then 	appeal
the 	decision 	to 	the 	District 	board 	of 	education, 	which 	has
authority 	to 	issue 	a 	decision 	which 	is 	"final 	and 	binding 	upon
the 	District, 	the 	Association 	and 	the 	grievant."
If 	a 	grievance 	is 	not 	settled 	in 	Steps 	I 	or 	II, 	the
determination 	of 	whether 	to 	seek 	a 	hearing 	before 	an 	arbitrator
is 	in 	the 	hands 	of 	the 	Association 	(Article 	III, 	section 	C).
Under 	the 	grievance-arbitration 	article, 	an 	employee's
assertion 	that 	the 	District 	has 	improperly 	applied 	the 	transfer
article 	of 	the 	contract, 	or 	any 	portion 	of 	it, 	is 	a 	proper
subject 	of 	a 	grievance.
There 	is 	no 	provision 	of 	the 	contract 	which 	defines 	the
rights 	of 	the 	Association, 	or 	the 	obligation of 	the 	District,
with 	respect 	to 	disclosure 	of 	information 	or 	documents 	known 	to
or 	available 	to 	the 	District, 	which 	the 	Association 	seeks 	to
aid 	it 	in 	its 	prosecution 	of 	the 	grievance.
At 	various 	times 	in 	November 	and 	December 	1981, 	MTA
Executive 	Director 	Burt 	and 	Hackett 	met 	with 	the 	principals 	of
the 	schools 	to 	which Benneche 	had 	applied, 	as 	Step 	I 	of 	the
grievance 	procedure. 	The 	MTA 	representatives 	asked 	each
20

principal 	for 	the 	rating 	sheets 	for 	all 	applicants 	for 	the
position 	for 	which 	Benneche 	had 	applied. 	These 	requests 	were
uniformly 	rejected.
Step 	II 	of 	the 	grievance 	procedure, 	for 	both 	grievants,
took 	place 	on 	February 	19, 	1982, 	when Burt, 	Hackett, 	Benneche
and 	Ahart 	met 	with 	Jennings, 	Breon 	and 	Jim Enochs, 	assistant
superintendent of 	schools. 	(Enochs 	was 	acting 	on 	behalf 	of
Superintendent 	Otto, 	who 	was 	ill.) 	Burt, 	acting 	on 	behalf 	of
both 	Ahart 	and 	Benneche, 	asked 	for 	the 	rating 	sheets 	for 	all
applicants 	for 	the 	positions 	for 	which 	Benneche 	and 	Ahart 	had
applied. 	He 	was 	told 	by 	the 	District 	representatives 	that
these 	documents 	were 	confidential, 	and 	for 	that 	reason 	would
not 	be 	made 	available 	to 	him.
Burt 	indicated 	that 	he 	would 	have 	no 	objection 	if 	the
District 	were 	to 	conceal 	the 	names 	of 	the 	applicants 	and 	the
raters, 	thus 	protecting 	the 	"confidentiality" 	of 	the 	documents,
and 	thereafter 	identify 	the 	rating 	sheets 	only 	by 	numbers,
before 	turning 	these 	over 	to 	him. 	He 	also 	indicated 	that 	he
would 	assure 	the 	District 	that 	he 	would 	be 	the 	only 	person 	to
examine 	the 	sheets, 	if 	the 	District 	sought 	that 	protection 	of
the 	"confidentiality" 	of 	the 	documents.
The 	District 	refused 	to 	turn 	the 	rating 	sheets 	over 	to 	Burt
under 	the 	conditions 	described, 	and 	made 	no 	alternative
suggestions 	to 	accommodate 	the 	union's 	need 	for 	information 	and
21

the 	District's 	desire 	to 	protect 	"confidentiality" 	of 	ratings.
Jennings 	testified 	that 	he 	did 	not 	consider 	Burt's 	offer 	to
accept 	the 	documents 	under 	the 	conditions 	described 	to be 	a
"sincere 	request." 	He 	did 	not 	testify 	about 	the 	reason 	for
this 	belief. 	Aside 	from 	his 	doubts 	about 	Burt's 	sincerity,
Jennings 	offered 	this 	explanation 	of 	why 	the 	District 	was
unwilling 	to 	allow 	the 	Association 	to 	examine 	the 	rating
sheets:
Well, 	the 	basic 	problem with 	providing 	this
in 	any 	fashion 	is 	that 	at 	times 	there 	were
only 	two 	individuals 	applying 	tor 	the 	job,
so 	it 	was 	rather 	obviou~ 	that 	that
confidentiality 	would 	have 	been 	broken 	in
this 	situation. 	And 	that 	the 	criteria 	form
as 	it 	was 	designed 	is 	a 	working 	form 	for 	the
individual 	member 	and 	some 	of 	them 	are 	very
prolific 	in 	their 	writing 	and 	they 	write
down 	names 	and 	quotes 	and 	it 	violated 	the
confidentiality 	that 	we 	started 	off 	with
that 	individual 	teacher 	or 	member 	of 	that
committee. 	(TR: 81)
However, 	during 	the 	grievance 	process, 	the 	District gave
the 	Association 	limited 	information 	about 	the 	filling 	of 	the
vacancies. 	The 	District 	gave 	the 	Association 	"blank" 	copies 	of
the 	rating 	sheets 	which 	were 	used 	to 	evaluate 	applicants 	for
the 	jobs 	for 	which 	Benneche 	and 	Ahart 	applied 	(with 	no 	ratings
or 	comments 	written 	on 	the 	sheets). 	Also, 	at 	some 	point,
probably 	at 	the 	February 	19 	meeting, 	the 	District 	disclosed 	the
particular 	rating 	criteria 	in 	which 	Ahart 	was 	considered, 	by
the 	raters, 	to 	be 	"deficient." 	Ahart 	testified 	that 	at 	the
February 	grievance 	meeting,
22

••• 	they 	pointed 	out 	two points, 	it 	seems,
on 	each 	er iter ia 	sheet 	where 	they 	said 	I
fe 11 	down. 	(TR: 	50)
The 	testimony 	about 	Benneche 	in 	this 	respect 	was 	less
exact. 	Jennings 	was 	asked:
Q. 	Did 	the 	principals 	testify 	[at 	the
arbitration 	hearing] 	that 	they, 	in 	fact, 	did
offer 	to 	meet 	and 	in 	some 	cases 	did 	meet 	and
discuss 	the 	deficiencies 	of 	the 	grievants?
A. 	They 	met 	with 	the 	individual, 	both 	Ahart
and 	Benneche 	were 	met 	and 	they 	did, 	in 	fact,
receive 	an 	explanatio,n 	as 	to 	where 	they 	did
poorly. 	(TR: 	83)
Jennings 	did 	not 	clarify 	whether 	only 	some 	of 	the 	principals
met 	with Benneche 	and 	Ahart 	(as 	the 	question 	suggests), 	or
whether 	all 	principals 	gave 	the 	information 	to 	the 	grievants.
On 	the 	same 	point, 	Benneche 	was 	asked:
Q. 	Was 	it 	ever 	brought 	to 	your 	attention 	by
the 	employer, 	anyone 	representing 	the
employer, 	that 	on 	that 	job 	related 	selection
criteria 	8-A 	through 	8-G, 	that 	there 	were
certain 	areas 	within 	that 	in 	which 	you 	were
deficient 	or 	less 	qualified 	than 	the 	others
you 	were 	being 	compared 	with?
A. 	It 	was 	touched 	upon 	at 	a 	meeting 	with
Mr. 	Jennings 	there, 	but 	not 	dealt 	with 	in
any 	real 	sense. 	(TR: 	35)
Jennings 	acknowledged 	that 	the 	District 	is 	unwilling 	to
disclose 	to 	the 	applicants 	or 	to 	the 	Association 	any 	of 	the
grievants' 	numerical 	scores 	on 	any 	of 	the 	criteria, 	or 	their
total 	score 	on 	any 	application 	(TR: 	101-102). 	He 	also
acknowledged 	that 	the 	District 	is 	unwilling 	to 	allow 	the
Association 	to 	examine 	any 	of 	the 	rating 	sheets 	of 	the 	other
23

applicants 	or 	to 	disclose 	to 	the 	Association 	any 	of 	their
scores 	(TR: 	78).16
Benneche 	and 	Ahart 	were 	asked 	why 	they 	wanted 	the 	rating
sheets 	(their 	-0wn, 	and 	those 	of 	other 	applicants) 	in 	connection
with 	their 	grievances. 	Benneche's 	explanation 	was 	the
following:
Because 	I 	felt 	that 	I 	was 	more 	qualified
than 	some 	of 	the 	parties 	that 	were
selected. 	And 	I 	felt 	that 	I 	was 	unjustly
rated 	as 	concerns 	them. 	I 	had 	more
experience 	••. 	in 	the 	District 	than 	any 	of
these 	other 	parties •••• 	[The 	District]
said 	I 	was 	not 	qualified •••• 	And 	I
wanted 	to 	determine 	just 	what 	they 	meant 	by
not 	being 	qualified, 	in 	whaJ:: 	areas 	was 	I 	not
qualified 	and 	how 	I 	was 	rated 	in 	these
areas ••.• 	I 	felt 	that 	the 	whole 	thing
was 	a 	charade 	because 	they 	had 	come 	up 	with
the 	same 	excuses, 	if 	I 	may 	say 	so, 	in 	all 	of
the 	interviews, 	I 	was 	not 	qualified.
(TR: 	25)
Ahart's 	explanation 	of 	her 	desire 	to 	obtain 	copies 	of 	the
rating 	sheets 	was 	the 	following:
Because 	I 	have 	never 	been 	convinced 	that 	I
was 	not 	one 	of 	the 	more 	qualified 	candidates
on 	some 	of 	those 	positions 	anyhow, 	and 	it
was 	indicated 	at 	my 	arbitration 	hearing 	that
I 	was 	number 	two 	and 	I 	think 	in 	most 	cases
number 	two, 	and 	I 	find 	that 	a 	little 	bit
16There 	was 	testimony 	regarding 	additional 	information
given by 	the 	District 	to 	the 	Association 	by means 	of 	testimony
during 	an 	arbitration 	hearing. 	That 	evidence 	is 	not 	credited
here 	because 	it 	is 	hearsay, 	and 	because 	it 	was 	too 	vague 	and
imprecise 	to 	be 	helpful. 	In 	addition, 	the 	right 	at 	issue 	here
is 	the 	right 	of 	the 	Association 	to 	obtain 	information 	prior 	to
an 	arbitration 	hearing.
24

hard 	to 	believe, 	that 	I 	was 	always
number 	two 	and 	never 	number 	one 	on 	any 	of
these. 	(TR: 	46-47}
Ahart 	also 	indicated 	she 	believed 	that 	in 	the 	past 	other
applicants 	had 	won 	jobs 	sought 	by 	Ahart 	because 	of 	personal
favoritism 	exercised 	by 	school 	employees 	or 	administrators.
Hackett, 	of 	the 	Association's 	grievance 	committee,
testified 	that 	the 	Association 	needed 	the 	information 	available
on 	the 	rating 	sheets 	to 	determine 	whether 	there 	was 	sufficient
factual 	basis 	for 	the 	Association 	to 	pursue 	the 	grievances.
She 	said 	that 	both 	Benneche 	and 	Ahart 	had 	indicated 	they 	were
willing 	to 	drop 	their 	grievances 	if 	the 	rating 	sheets 	indicated
they 	had 	scored 	lower 	than 	other 	candidates 	(TR: 	62).
The 	grievances 	filed 	by 	Benneche 	and 	Ahart 	in 	the 	fall
of 	1981 	asked 	for 	considerably 	more 	information 	than 	that
available 	on 	the 	rating 	sheets. 	Similarly, 	the 	charge 	filed 	by
the 	Association 	accuses 	the 	District of 	violating 	the 	EERA by
refusing 	to 	provide 	all 	the 	information 	sought 	in 	those
grievance 	forms. 	However, 	during 	the 	hearing, 	the 	Association
presented 	no 	evidence 	to 	indicate 	whether 	the 	District provided
or 	refused 	to provide 	any 	of 	the 	information 	sought, 	other 	than
the 	rating 	sheets. 	Nor 	did 	the 	Association 	present 	any
evidence 	indicating 	that 	it 	had 	made 	any 	efforts 	of 	its 	own 	to
solicit 	that 	information 	from 	the 	District 	after 	Benneche 	and
Ahart 	first 	described 	the 	information 	sought 	on 	the 	grievance
submissions.
25

Some 	time 	after 	February 	19, 	1982, 	the 	grievances 	were
heard 	by 	an 	arbitrator. 	However, 	no 	evidence 	was 	submitted 	to
indicate 	whether 	the 	arbitrator 	has 	submitted 	a 	decision, 	or,
if 	a 	decision 	has 	been 	submitted, 	its 	contents.
CONCLUSIONS 	OF 	LAW
The 	charge 	filed 	by 	the 	Association 	alleges 	that 	the
District 	violated 	section 	3543. 5 (a) , 	( b) , 	(c) , 	(d) 	and 	( e) 	by
its 	refusal 	to 	give 	to 	the 	Association 	information 	and
documents 	sought 	by 	the 	Association 	to 	aid 	in 	the 	prosecution
of 	grievances 	filed 	by 	District 	employees 	Be~neche, 	Ahart 	and
Debbie 	Chaplin. 	As 	indicated 	on 	p. 	11 	above, 	allegations
regarding 	District 	conduct 	with 	respect 	to 	the 	grievance 	of
Debbie 	Chaplin 	will 	be 	dismissed 	because 	the 	Association
presented 	no 	evidence 	in 	support 	of 	these 	allegations.
Similarly, 	the 	Association 	presented 	no 	evidence 	regarding 	the
District's 	refusal 	to 	give 	to 	the 	Association 	information 	or
documents 	other 	than 	the 	rating 	sheets 	used 	by 	the 	committee.
For 	that 	reason, 	allegations 	of 	unlawful 	conduct 	by 	the
District, 	concerning 	information 	or 	documents 	other 	than 	the
ratings 	or 	rating 	sheets 	will 	be 	dismissed.
The MTA 	charge 	alleges, 	inter 	alia, 	violations 	of
section 	3543.S(d) 	and 	(e). 	Subsection 	(d) 	prohibits 	employer
action 	to 	dominate 	an 	employee 	organization, 	or 	to 	favor 	one
employee 	organization 	over 	another. 	Subsection 	(e) 	makes 	it
26

unlawful 	for 	an 	employer 	to 	refuse 	to 	participate 	in 	good 	faith
in 	the 	statutory 	impasse 	proceedings. 	There 	was 	no 	evidence
presented 	to 	support 	either 	allegation. 	Those 	portions 	of 	the
charge 	which 	allege 	violations 	of 	those 	two 	subsections 	will 	be
dismissed.
Further, 	the 	Association 	has 	presented 	no 	evidence 	that 	the
District's 	conduct 	constituted 	an 	"independent" 	discrimination
or 	interference 	violation 	of 	section 	3543.S(a).
The 	only 	questions 	which 	remain 	to 	be 	decided 	are 	whether
the 	District 	violated 	section 	3543.S(b) 	or 	3543.S(c) 	by
refusing 	to 	make 	available 	to 	the 	Association 	the 	rating 	sheets
of 	the 	two 	transfer 	applicants. 	If 	the 	District 	did 	violate
either 	of 	these 	sections, 	then 	a 	concurrent 	violation 	of
section 	3543.S(a) 	may 	also 	be 	found. 	Stockton 	Unified 	School
District 	(11/3/80) 	PERB 	Decision 	No. 	143: 	San 	Ramon 	Valley
Unified 	School 	District 	(8/9/82) 	PERB 	Decision 	No. 	230.
A. 	The 	Contentions 	of 	the 	Parties.
The 	Association 	argues 	that 	the 	information 	which 	it 	sought
from 	the 	District 	was 	needed 	for 	the 	Association's
determination 	of 	whether 	and 	how 	to 	pursue 	the 	grievances 	filed
by Benneche 	and 	Ahart. 	The 	District's 	refusal 	to 	provide 	the
rating 	sheets, 	the 	Association 	argues, 	violates 	the 	District's
duty 	to 	negotiate 	in 	good 	faith 	with 	the 	Association 	(the
exclusive 	representative 	of 	the 	certificated 	employees): 	and
27

denies 	to 	the 	Association 	its 	statutory 	rights 	to 	represent 	its
members; 	and 	thus 	violates 	sections 	3543.S(b) 	and 	(c).17
The 	Association 	denies 	that 	it 	waived, 	by 	either 	contract
language 	or 	conduct 	during 	negotiations, 	the 	right 	to 	obtain
the 	needed 	information.
With 	respect 	to 	confidentiality, 	the 	Association 	argues
that 	no 	such 	assertion 	can 	justify 	the 	District's 	withholding
of 	the 	numerical 	scores 	given 	to 	the 	grievants. 	The 	grievants
stated 	plainly, 	both 	during 	the 	grievance 	procedure 	and 	during
the 	PERB 	hearing, 	that 	they 	wanted 	their 	numerical 	scores 	to 	be
disclosed. 	With 	respect 	to 	the 	scores 	of 	the 	other 	applicants,
the 	Association 	acknowledges 	that 	the 	interests 	of 	the
individuals 	in preventing 	disclosure 	of 	their 	numerical 	ratings
must 	be 	balanced 	with 	the 	need 	of 	the 	Association 	to 	obtain 	the
information. 	The 	Association 	argues 	that 	the 	arrangements 	it
proposed 	during 	the 	grievance 	procedure 	(substitution 	of
numbers 	for 	the 	names 	of 	the 	applicants, 	and 	limitation 	of
their 	examination 	to 	a 	single 	Association 	grievance
representative) 	was 	sufficient 	accommodation of 	the 	competing
interests.
17rn Mount 	Diablo 	Unified 	School 	District 	(12/30/77) 	PERB
Decision 	No. 	44, 	the 	Board 	held 	that 	an 	employee 	organization's
participation 	in 	the 	contractual grievance 	procedure 	is 	among
the 	"employment 	relations" 	described 	in 	section 	3543.l(a), 	and
that, 	therefore, 	employee 	organizations 	have 	a 	statutory 	right
to 	participate 	in 	grievance 	procedures 	on 	behalf 	of 	employees
they 	represent.
28

The 	District 	argues, 	first, 	that 	the 	Association 	has 	not
demonstrated 	a 	need 	for 	the 	information, 	over 	and 	above 	similar
information 	in 	a 	form 	in 	which 	the 	District 	is 	willing 	to
provide 	(that 	is, 	by 	oral 	disclosure 	to 	the 	transfer 	applicants
of 	the 	rating 	areas 	in 	which 	they 	were 	believed 	to 	be
deficient).
Next, 	the 	District 	argues 	that 	it 	has 	a 	duty 	and 	a 	right 	to
refuse 	to 	disclose 	the 	applicants' 	ratings, 	based 	on 	three
identifiable 	interests. 	The 	first 	of 	these 	is 	the 	right 	of 	all
applicants 	for 	the 	vacant 	positions 	to 	prevent 	disclosure 	of
information 	of 	the 	kind 	recorded 	on 	the 	rating 	sheets. 	This
right, 	the 	District 	argues, 	is 	grounded 	in 	Article 	I, 	section 	1
of 	the 	California 	Constitution.18
The 	second 	of 	these 	rights, 	according 	to 	the 	District, 	is
the 	right 	of 	the 	persons 	who 	rated 	the 	applicants 	to 	prevent
disclosure 	of 	their 	ratings, 	given 	under 	"assurances 	of
confidentiality." 	In 	addition, 	the 	District 	argues 	that 	it 	has
its 	own 	right 	to 	maintain 	the 	"integrity of 	its 	negotiated
(transfer) 	procedure."
Next, 	the 	District 	argues 	that 	in 	view 	of 	the 	interests 	of
the 	applicants, 	the 	"raters," 	and 	the 	District 	in 	preventing
18Article 	I, 	section 	1 	reads:
All 	people 	are 	by 	nature 	free 	and
independent 	and 	have 	inalienable 	rights.
Among 	these 	are 	••• 	pursuing 	and 	obtaining
safety, 	happiness 	and 	privacy.
29

disclosure 	of 	the 	ratings 	given 	to 	the 	applicants, 	the
Association 	must 	establish 	a 	"compelling 	state 	interest" 	to
justify 	an 	order 	by 	PERB 	requiring 	disclosure 	of 	the
information 	sought. 	The 	Association .has 	not 	presented 	evidence
which 	would 	establish 	a 	compelling 	state 	interest, 	the 	District
argues, 	and 	therefore 	PERB 	should 	not 	require 	the 	District 	to
disclose 	the 	rating 	sheets.
In 	addition, 	in 	its 	Answer 	to 	the 	Complaint, 	the 	District
raised 	the 	following 	affirmative 	defenses 	which 	it 	did 	not
argue 	in 	its 	brief: 	(1) 	the 	charging 	party 	had 	failed 	to
exhaust 	the 	contractual 	grievance 	machinery; 	(2) 	the 	District
and 	the 	Association 	had 	reached 	agreement 	during 	contract
negotiations 	on 	the 	manner 	of 	providing 	information 	of 	the 	kind
sought 	by 	the 	Association, 	and 	the 	District 	had 	complied 	with
the 	terms 	of 	the 	contract; 	and 	(3) 	the 	Association 	waived, 	by
its 	agreement 	to 	contract 	terms, 	its 	right 	to 	obtain 	copies 	of
the 	documents 	in question.
These 	conflicting 	contentions 	will 	be 	examined 	in 	order.
B. 	The 	Association's 	Need 	for 	the 	Information 	Contained·
in 	the 	Rating 	Sheets.
Under 	the 	National 	Labor 	Relations 	Act 	(NLRA), 	the 	duty 	to
bargain 	in 	good 	faith 	requires 	an 	employer 	to 	furnish
information 	that 	the 	bargaining 	representative 	needs 	for 	the
proper 	performance 	of 	its 	duties. 	A failure 	to 	provide 	needed
information 	constitutes 	a 	refusal 	to 	bargain 	in 	violation 	of
the 	NLRA. 	This 	obligation 	extends 	to 	the 	union's 	need 	for
30

information 	during 	the 	administering 	and 	policing 	of 	the
contract, 	as 	well 	as 	during 	contract 	negotiation. 	NLRB 	v. 	Acme
Industrial 	Company 	(1967) 	385 	U.S. 	432 	[64 	LRRM 	2069]; 	Procter
& 	Gamble 	Manufacting 	Company 	v. 	NLRB 	(8th 	Cir. 	1979)
603 	F.2d 	1310 	[102 	LRRM 	2128].19 	To 	refuse 	to 	furnish 	such
relevant 	information 	violates 	the 	NLRA, 	because 	it 	conflicts
with 	the 	statutory 	policy 	to 	faciliate 	effective 	collective
bargaining, 	and 	dispute 	resolution, 	through 	the 	collective
bargaining 	framework.
In 	Stockton 	Unified 	School 	District 	(11/3/80) 	PERB 	Decision
No. 	143, 	PERB 	applied 	NLRA precedent 	concerning 	an 	employer's
obligation 	to 	provide 	information 	to 	a 	union 	during 	contract
negotiations 	and 	held 	that 	the 	duty 	to 	provide 	relevant
information 	is 	encompassed 	within 	an 	employers' 	good 	faith
negotiating 	obligations 	under 	EERA. 	The 	same 	analysis 	led 	PERB
to 	hold, 	in 	Mt. 	San 	Antonio 	Community 	College 	District
(6/30/82) 	PERB 	Decision 	No. 	224, 	that 	an 	employer 	was 	obligated
to 	provide 	to 	an 	exclusive 	representative 	of 	its 	employees 	the
19The 	construction 	of 	similar 	or 	identical prov1s1ons 	of
the 	National 	Labor 	Relations 	Act 	29 	u.s.c. 	section 	150 	et 	seq.
may 	be 	used 	to 	aid intereretation of 	the 	EERA. 	San Diego
Teachers 	Association 	v. 	Superior 	Court 	(1979) 	24 	Cal.3d 	1,
12-13; 	Fire 	Fighters 	Union 	v. 	City 	of Vallejo 	(1974)
12 	Cal.3d 	608, 	618.
Section 	3543.5(c) 	of 	the 	EERA 	is 	similar 	to 	section 	8(a) (5)
of 	the 	NLRA; 	and 	section 	3540.l(h) 	of 	the 	EERA, 	which 	defines
"meeting 	and 	negotiating" 	is 	similar 	to 	section 	8 (d) 	of 	the
NLRA, 	which 	defines 	the 	collective 	bargaining 	obligation 	of
employers 	and 	unions 	subject 	to 	the 	provisions 	of 	the 	NLRA.
31

names 	of disciplined 	employees, 	so 	that 	the 	organization
representing 	the 	employees 	might 	represent 	them 	in 	opposing 	or
appealing 	the 	discipline. 	The 	employer 	and 	the 	exclusive
representative 	in 	that 	case 	were 	not 	operating 	under 	a
collective 	bargaining 	agreement 	at 	the 	time 	of 	the 	events
underlying 	the 	PERB 	decision.
There 	has 	been 	no 	PERB 	decision 	considering 	an 	employer's
obligation 	to provide 	information 	to 	the 	exclusive
representative 	of 	the 	employees 	in 	the 	precise 	factual 	context
provided 	here: 	that 	is, 	during 	the 	prosecution of 	a 	grievance
initiated 	pursuant 	to 	the 	provisions 	of 	a 	collective 	bargaining
agreement. 	However, 	in 	view of 	PERB's 	adoption, 	in 	Stockton
Unified 	School 	District, 	supra, 	and 	in Mt. 	San 	Antonio
Community 	College 	District, 	supra, 	of 	NLRA precedent 	in 	this
general 	area, 	it 	is 	concluded 	that 	NLRA precedent 	is 	applicable
here. 	The 	EERA, 	like 	the 	NLRA, 	includes 	provisions 	which
encourage 	the 	settlement 	of 	disputes 	within 	the 	collective
bargaining 	framework. 	See, 	e.g., 	sections 	3541.5(a), 	3543,
3548-3548.3, 	3548.5, 	3548.7 	and 	3548.8. 	Therefore, 	to 	fulfill
its 	statutory 	"meeting 	and 	negotiating" 	obligation, 	an 	employer
subject 	to 	the 	EERA must, 	as 	a 	general 	rule, 	provide 	to 	an
employee 	organization 	which 	is 	the 	exclusive 	representative 	of
its 	employees 	information 	and 	documents 	which 	are 	relevant 	to 	a
pending 	grievance, 	and 	needed 	by 	the 	organization 	to 	pursue 	the
grievance.
32

If, 	then, 	the 	MTA 	has 	established 	that 	the 	information
provided 	by 	the 	rating 	sheets 	used 	by 	the 	District 	is 	relevant
to 	the 	grievances 	filed, 	and 	needed 	by 	the 	Association 	to
pursue 	those 	grievances, 	the 	Association 	has 	established 	a
presumptive 	right 	to 	obtain 	the 	information 	it 	seeks.
The 	evidence 	presented 	here 	is 	sufficient 	to 	prove 	that 	the
information 	sought 	by 	the 	Association 	is 	both 	relevant 	to 	the
grievances, 	and 	needed 	by 	the 	Association 	to 	determine 	whether,
and 	how, 	to 	pursue 	the 	Benneche 	and 	Ahart grievances. 	The 	crux
of 	each 	of 	the 	grievances 	is 	the 	assertion 	by 	the 	grievant 	that
he 	or 	she 	was 	unfairly 	rated 	on 	one 	or 	more 	criteria, 	both 	in
absolute 	terms, 	and 	as 	compared 	to 	other 	applicants 	for 	the
positions; 	and 	that 	those 	incorrectly 	low 	ratings 	prevented 	him
or 	her 	from 	gaining 	a 	transfer 	to 	another 	school.
Given 	these 	assertions, 	the 	precise 	ratings 	of 	the
grievants, 	and 	of 	the 	other 	applicants, 	are 	not 	only 	relevant
but 	are 	the 	most 	relevant 	information 	available. 	Many of 	the
criteria on 	which 	the 	applicants 	were 	to 	be 	rated 	called 	for
analysis 	of 	ascertainable, 	objective 	facts 	about 	the 	applicant,
or 	about 	the 	applicant's 	work 	history. 	For 	example, 	among 	the
10 	criteria 	which 	were 	listed 	by 	the 	Burbank 	School 	for 	its
5th/6th 	combination 	opening, 	at 	least 	3 	and 	possibly 	5 	rating
areas 	are 	in 	this 	category: 	(1) 	"A well-balanced 	staff 	(gender,
age, 	experience);" 	(2) 	past 	service 	to 	school 	(traffic, 	chorus,
assistant principal, 	school 	and 	District 	committees); 	(3) 	past
33

service 	in 	building 	community 	relations; 	(4) 	school 	seniority;
and 	(5) 	District 	seniority.
By 	examining 	the 	ratings 	of 	the 	grievants, 	in 	light 	of
known 	information 	about 	the 	applicant 	and 	his 	or 	her
background, 	and 	in 	light 	of 	the 	ratings 	given 	to 	other
applicants, 	the 	Association, 	or 	a 	third 	party, 	would 	be 	able 	to
analyze 	(at 	least 	to 	some 	degree) 	the 	fairness 	of 	the 	ratings
given 	to 	the 	grievants. 	This 	comparison 	would 	require 	use 	of
the 	ratings 	of 	all 	the 	applicants 	(not 	only 	those 	of 	the
grievant 	and 	of 	the 	person 	eventually 	chosen 	for 	the
position). 	Examination 	of 	the 	ratings 	of 	other 	unsuccessful
applicants 	might 	well 	illuminate 	standards 	used 	by 	the 	raters,
which 	might 	not 	be 	discernible 	if 	the 	only 	rating 	sheets
available 	were 	those 	of 	the 	grievant 	and 	of 	the 	successful
applicant.
Further, 	even 	for 	those 	ratings 	which 	are 	more 	dependent 	on
subjective 	judgments 	(for 	example, 	in 	categories 	such 	as
"ability 	to 	manage 	a 	classroom"), 	examination 	of 	the 	numerical
ratings 	given 	to 	various 	applicants 	is 	the 	most 	relevant
starting 	point 	for 	an 	analysis 	of 	whether 	the 	ratings 	given 	to
a 	grievant 	were 	fair, 	in 	themselves, 	or 	as 	compared 	to 	ratings
given 	to 	other 	applicants.
This 	analysis 	establishes 	not 	only 	that 	the 	ratings 	are
relevant, 	but 	also 	that 	the 	ratings 	are 	needed 	by 	the
Association 	for 	its 	initial 	determination 	of 	whether 	to 	pursue
34

the 	grievance, 	and 	for 	the 	Association's 	{possible) 	successful
prosecution 	of 	the 	grievance.20
There 	appears 	to 	be 	no 	information 	other 	than 	the 	specific
ratings 	in 	each 	criteria 	which 	would 	serve 	the 	Association 	in 	a
comparable 	way.
The 	District's 	contention 	that 	the 	information 	which 	it
provided 	to 	the 	Association 	(the 	blank 	rating 	forms, 	and 	a
listing 	of 	specific 	areas 	on 	which 	each 	grievant 	was 	believed
by 	the 	District 	to 	be 	deficient) 	was 	adequate 	for 	the
Association's 	purposes, 	is 	unpersuasive. 	With 	no more
information 	than 	that, 	it 	would 	be 	impossible 	for 	the
Association 	to 	determine 	whether 	there 	was 	any 	merit 	in 	the
assertions 	that 	the 	grievants 	were 	unfairly 	rated, 	in 	absolute
terms, 	or 	in 	comparison 	with 	other 	applicants. 	And, 	with 	only
that 	limited 	information, 	the 	Association 	would 	be 	forced 	to
struggle 	in 	the 	dark 	in 	its 	presentation 	of 	evidence 	at 	each
step of 	the 	grievance 	procedure.
The 	District's 	Assertion 	of 	Confidentiality.
Under 	section 	8(a) (5) 	of 	the 	NLRA, 	if 	an 	employer's 	refusal
to 	provide 	to 	a 	union 	relevant 	information 	about 	a 	mandatory
subject 	of 	bargaining 	is 	based 	on 	a 	legitimate 	assertion 	of
20The 	Association 	has 	not 	shown 	here 	that 	it 	needs 	to
learn 	which 	committee 	member/rater 	gave 	which 	ratings. 	That 	is,
it 	appears 	from 	the 	evidence 	presented 	that 	the 	Association'e
needs 	would 	be 	met 	if 	it 	were 	to 	be 	permitted 	to 	examine 	the
rating 	sheets 	with 	the 	names 	of 	the 	raters 	disguised.
35

confidentiality of 	the 	information, 	the 	NLRB 	must 	balance 	the
competing 	interests 	of 	the 	employer 	and 	the 	union 	to 	determine
if 	the 	employer 	has 	acted 	unlawfully. 	Detroit 	Edison 	Company
v. 	NLRB 	(1979) 	440 	U.S. 	301 	[100 	LRRM 	2733]; 	Johns-Manville
Sales 	Corporation 	(1980) 	252 	NLRB 	No. 	56 	[105 	LRRM 	1379];
Kroger 	Company 	v. 	NLRB 	(6th 	Cir. 	1968) 	399 	F.2d 	455
[68 	LRRM 	2731]. 	Once 	a 	union 	establishes 	that 	the 	information
it 	seeks 	is 	relevant 	and 	needed, 	the 	burden 	is 	on 	the 	employer
to 	prove 	that 	it 	enjoys 	a 	right 	of 	confidentiality, 	with
respect 	to 	the 	information 	sought, 	which 	allows 	it 	to 	refuse 	to
disclose 	the 	information 	despite 	the 	union's 	need 	for 	it.
It 	should 	be 	noted, 	however, 	that 	to 	warrant
upholding 	the 	defense 	of 	confidentiality,
the 	employer 	must 	demonstrate 	that 	there 	is
a 	legitimate 	business 	need, 	that 	it 	has 	been
bargaining 	in 	good 	faith 	and 	making 	efforts
to 	accommodate 	the 	union's 	request 	by
alternative 	arrangements 	and, 	apparently,
that 	the 	union 	demand 	has 	been 	overbroad 	or
its 	bargaining 	position 	inflexible. 	(Gorman,
Basic 	Text 	on 	Labor 	Law 	(1976).)
While 	Detroit 	Edison 	gave 	renewed 	recognition 	to 	the 	use 	of
a 	"confidentiality II 	defense, 	it 	did 	not 	alter 	th is 	allocation
of 	the 	burden 	of 	proof. 	Since 	Detroit 	Edison, 	the 	NLRB 	and 	the
courts 	have 	continued 	to 	place 	the 	burden of 	proof 	in 	this
regard 	on 	the 	employer 	who 	asserts 	a 	defense 	of
confidentiality. 	That 	is, 	the 	employer 	must 	make 	a
satisfactory 	factual 	showing 	of 	a 	need 	for 	confidentiality 	of
specific 	information 	before 	the 	Board 	will 	undertake 	to 	balance
the 	conflicting 	rights 	of 	the 	union 	and 	the 	employer.
36

In 	Minnesota 	Mining 	and 	Manufacturing 	Company 	(1982)
261 	NLRB 	No. 	2 	[109 	LRRM 1345), 	the 	Board 	followed 	this
approach 	in 	recognizing 	the 	employer's 	confidentiality 	defense
with 	respect 	to 	certain 	information, 	but 	rejecting 	it 	with
respect 	to 	other 	information 	(at 	pp. 	1349-1350).
In 	Press 	Democrat 	Publishing 	Company 	v. 	NLRB
(9th 	Cir. 	1980) 	629 	F.2d 	1320 	[105 	LRRM 	3046), 	the 	Court of
Appeal 	remanded 	a 	case 	to 	the 	Board 	for 	specific 	findings
regarding 	the 	employer's 	claim of 	confidentiality 	preventing
disclosure 	of 	certain 	information. 	The 	court 	noted:
Upon 	a 	clear 	showing 	of 	need 	for
confidentiality, 	courts 	have 	found 	less 	than
complete 	disclosure 	justified. 	(105 	LRRM
at 	3050).
The 	PERB 	has 	not 	yet 	considered 	an 	employer's 	assertion 	of
confidentiality 	as 	a 	defense 	to 	an 	allegation 	that 	it 	has 	acted
unlawfully 	by 	withholding 	information 	from 	the 	exclusive
representative 	of 	its 	employees.21 	However, 	it 	is 	concluded,
in 	view of 	PERB's 	adoption 	of 	NLRA precedent 	in 	this 	general
area, 	that 	it 	is 	appropriate 	to 	adopt 	the 	balance-of-interests
analysis 	for 	similar 	cases 	arising 	under 	the 	EERA.
The 	District 	argues 	that 	balancing 	of 	interests 	is 	required
in 	the 	instant 	case 	and 	that 	there 	are 	three 	distinct 	interests
21The 	District's 	post-hearing 	brief quotes 	at 	length 	from
a 	decision 	on 	this 	subject 	by 	a 	PERB 	hearing 	officer. 	Although
such 	decisions 	are 	not 	precedent, 	the 	specific 	arguments
offered 	by 	the 	employer, 	based 	on 	that 	decision, 	will 	be
considered 	below, 	to 	the 	extent 	they 	are 	appropriate 	to 	this
case.
37

to 	balance 	against 	the 	interest of 	the 	MTA 	in 	obtaining 	the
information: 	the 	interest 	of 	the 	applicants 	in 	maintaining 	the
relative 	privacy 	surrounding 	the 	ratings 	assigned 	to 	themi 	the
interest 	of 	the 	raters 	in 	maintaining 	the 	relative 	privacy, 	or
confidentiality, 	of 	the 	ratings 	which 	they 	have 	giveni 	and 	the
interest 	of 	the 	District 	in 	operating 	the 	rating 	system 	as 	it
was 	designed.22
However, 	it 	is 	concluded 	that, 	in 	the 	factual 	circumstances
here, 	there 	is 	no 	actual 	conflict 	between 	the 	Association's
interest 	in 	obtaining 	the 	information 	which 	it 	is 	seeking 	and
any 	cognizable 	interest of 	the 	applicants, 	the 	raters 	or 	the
District. 	This 	conclusion 	is 	based 	primarily 	on 	the 	absence 	of
factual 	support 	for 	the 	District's 	threshold 	assertions 	that
such 	privacy 	interests 	were 	an 	established 	element 	of 	the
rating 	process.
The 	easiest 	case 	to 	consider 	is 	the 	asserted 	privacy
interest of 	the 	grievants 	themselves. 	It 	cannot 	be 	said 	that
the 	two 	grievants 	here, 	Benneche 	and 	Ahart, 	have 	an 	interest 	in
preventing 	the 	Association 	from 	learning 	the 	ratings 	they 	were
given 	by 	the 	interviewing 	committees. 	Each 	grievant 	asked 	for
22The 	applicants 	and 	the 	raters 	enjoy 	a 	"relative
privacy" 	surrounding 	the 	ratings, 	but 	not 	complete 	privacy.
From 	the 	testimony 	about 	the 	rating 	procedure, 	it 	appears
likely 	that 	there 	is 	some 	discussion 	among 	raters 	and 	the
school principal concerning 	the 	ratings 	given 	to 	various
applicants. 	In 	addition, 	it 	appears 	likely 	that 	at 	least 	some
of 	the 	raters 	are 	certificated 	employees 	of 	the 	District, 	and
thus 	peers 	of 	the 	applicants.
38

his/her 	own 	ratings 	in 	the 	letters 	which 	each 	sent 	to
principals 	in 	October 	and 	November 	1981, 	before 	the 	filing 	of
the 	grievances. 	Each 	grievant 	asked 	again 	for 	disclosure 	of
all 	ratings, 	including 	his/her 	own, 	in 	the 	grievances 	that 	were
filed.
Also, 	each 	grievant 	was 	present 	at 	meetings 	with 	principals
or 	higher-level 	school 	administrators 	after 	the 	filing 	of 	the
grievances, 	at 	which 	MTA 	representatives 	asked 	for 	disclosure
of 	the 	ratings, 	including 	those 	of 	the 	grievants. 	Each
grievant 	joined 	in 	the 	request 	for 	his/her 	own 	ratings.
Finally, 	each 	grievant 	testified 	at 	the 	PERB 	hearing 	that 	he 	or
she 	wanted 	the 	District 	to 	disclose 	to 	the 	Association 	the
ratings 	given 	to 	them.
The 	District 	cannot 	assert 	that 	the 	ratings 	given 	to 	the
grievants 	must 	be 	withheld 	from 	the 	MTA 	because 	of 	the
grievants' 	right 	to 	privacy.
The 	next 	interest 	to 	consider 	is 	the 	interest 	of 	the 	other
applicants 	in 	the 	privacy 	of 	their 	ratings. 	The 	District 	has
presented 	no 	evidence 	that 	applicants 	sought 	assurances 	of
confidentiality; 	or 	that 	their 	participation 	in 	the 	interview
process 	was 	contingent 	on 	promises 	of 	non-disclosure; 	or 	that
the 	District promised 	applicants 	their 	ratings 	would 	not 	be
disclosed.
Even 	assuming 	{as 	the 	District 	assumes, 	and 	despite 	the
lack 	of 	evidence) 	that 	the 	applicants 	have 	an 	interest 	in
39

preventing 	disclosure 	of 	their 	own 	ratings, 	the 	conclusion
urged 	by 	the 	District 	does 	not 	follow.23 	The 	Association 	is
seeking 	disclosure 	of 	ratings 	without 	simultaneous 	disclosure
of 	the 	individuals 	to 	whom 	the 	ratings 	were 	assigned. 	By 	thus
limiting 	its 	own 	request 	for 	information, 	the 	Association
prevented 	the 	development 	of 	any 	conflict 	between 	its 	right 	to
obtain 	information 	and 	the 	applicants' 	interest 	in 	maintaining
the 	"privacy" 	of 	their 	own 	respective 	ratings.
The 	District 	has 	presented 	neither 	evidence 	nor 	argument 	to
support 	a 	conclusion 	that 	disclosure 	of 	the 	ratings 	under 	the
conditions 	specified 	by 	the 	Association 	would 	conflict 	with 	a
privacy 	interest 	of 	the 	applicants.
A number 	of 	recent 	court 	decisions, 	called 	on 	to 	balance
individuals' 	interests 	in 	privacy 	against 	a 	litigant's 	right 	to
discovery 	of 	relevant 	information, 	have 	concluded 	that
disclosure 	of 	information, 	while 	personal 	identification 	is
23The 	Supreme 	Court 	may 	have 	made 	a 	similar 	assumption 	in
the 	Detroit 	Edison 	case. 	The 	court 	notes:
The 	sensitivity 	of 	any 	human 	being 	to
disclosure 	of 	information 	that 	may 	be 	taken
to 	bear 	on 	his 	or 	her 	basic 	competence 	is
sufficiently 	well 	known 	to 	be 	an 	appropriate
subject 	of 	judicial notice.
The 	District 	has 	not 	asked 	that 	PERB 	take 	judicial 	notice 	of
the 	"sensitivity" 	of 	the 	applicants 	in 	this 	regard. 	See
Antelope Valleo/ 	Community 	College 	District 	(7/8/79) 	PERB
Decision 	No. 	9 	, 	regarding 	proper 	procedure 	for 	requesting 	that
official 	notice 	be 	taken 	by 	PERB.
40

withheld, 	is 	the 	appropriate 	resolution 	of 	the 	conflict 	of
interests. 	In 	Valley 	Bank 	of 	Nevada 	v. 	Superior 	Court 	(1975)
15 	Cal.3d 	652, 	decided 	after 	adoption 	of 	the 	"privacy"
provision 	of 	Article 	I, 	section 	1 	of 	the 	State 	Constitution,
the 	court 	gave 	this 	direction 	to 	lower 	courts 	seeking 	to
balance 	such 	conflicting 	interests:
Where 	it 	is 	possible 	to 	do 	so, 	the 	courts
should 	impose 	partial 	limitations 	rather
than 	outright 	denial of 	discovery.
(15 	Cal.3d 	at 	p. 	658.)
Since 	then, 	appellate 	courts 	have 	approved 	the 	practice 	of
disclosing 	information 	while 	withholding 	the 	identities 	of
individuals 	associated 	with 	the 	information, 	in Board 	of
Trustees 	v. 	Superior 	Court 	(1981) 	119 	Cal.App.3d 	516 	and 	in
Johnson 	v. 	Winter 	(1982) 	127 	Cal.App.3d 	435, 	both 	of 	which 	were
cited 	by 	the 	District 	in 	its 	post-hearing 	brief. 	In 	addition,
in 	1981 	the 	Legislature 	recognized 	the 	wisdom of 	this 	approach
when 	it 	added 	to 	the 	Public 	Records 	Act, 	Government 	Code
sections 	6250 	et 	seq., 	the 	following 	provision, 	which 	is
included 	in 	section 	6257:
Any 	reasonably 	segregable 	portion 	of 	a
record 	shall 	be 	provided 	to 	any 	person
requesting 	such 	record 	after 	deletion 	of
the 	portions 	which 	are 	exempt 	by 	law.
It 	is 	concluded, 	then, 	that 	disclosure 	of 	the 	ratings 	of
the 	applicants 	(other 	than 	the 	grievants) 	under 	the 	conditions
which 	the 	Association 	itself 	proposed 	(with 	the 	names 	of 	the
41

applicants 	undisclosed) 	does 	not 	infringe 	on 	any 	cognizable
privacy 	right 	of 	the 	applicants.24
The 	District 	next 	contends 	that 	the 	Association's 	need 	for
the 	information 	sought 	must 	be 	balanced 	against 	the 	asserted
privacy 	interests 	of 	the 	committee 	members/raters. 	The
District 	cites 	Johnson 	v. 	Winters, 	supra, 	and 	Board 	of Trustees
v. 	Superior 	Court, 	supra, 	as 	decisions 	which 	recognize 	the
legitimacy 	of 	this 	privacy 	interest.
The 	conclusion 	and 	analysis 	of 	the 	Board 	of 	Trustees
decision 	supports 	the 	District's 	position 	in 	this 	case 	only 	in
part. 	In 	that 	case, 	the 	Court 	of 	Appeal 	ordered 	the 	trial
court 	to 	allow 	a 	Stanford 	University 	faculty 	member 	to 	examine
letters 	of 	reference 	submitted 	to 	the 	University, 	letters 	which
the 	University 	sought 	to 	withhold 	from 	the 	faculty 	member.25
24District 	Personnel Director 	Jennings 	testified 	that 	for
some 	open positions 	there 	were 	only 	two 	applicants 	(including,
presumably, 	the 	grievant). 	In 	those 	cases, 	he 	said, 	masking
the 	names 	would 	not 	protect 	the 	identity 	of 	the 	other
applicant. 	However, 	Jennings' 	testimony 	did 	not 	go 	beyond 	this
bare 	assertion. 	He 	did 	not 	identify 	the 	schools 	or 	positions
for 	which 	that 	was 	the 	case. 	In 	those 	cases 	in 	which 	there
were 	only 	two 	applicants, 	some 	modification of 	the 	remedy
ordered 	in 	this 	decision 	may 	be 	appropriate. 	The 	matter 	may 	be
taken 	up 	in 	a 	compliance 	proceeding, 	if 	the 	parties 	do 	not
agree 	on 	a 	way 	of 	solving 	any 	such 	problem.
25To 	that 	extent 	the 	holding 	of 	the 	court 	supports 	the
conclusion 	above, 	that 	the 	District 	in 	th is 	case 	is 	not
entitled 	to 	withhold 	from 	the 	grievants 	the 	ratings 	given 	to
them 	by 	the 	committee 	members. 	The 	court 	came 	to 	its
conclusion 	despite 	a 	provision 	of 	Labor 	Code 	section 	1198.5
which 	exempts 	letters 	of 	reference 	from 	a 	requirement 	that
employees 	be 	permitted 	to 	examine 	their 	own 	personnel 	files.
42

But, 	the 	court 	held 	that 	the 	University 	could 	properly 	withhold
from 	the 	faculty 	member 	identification 	of 	the 	writers 	of 	the
letters 	of 	reference. 	To 	that 	extent, 	the 	Board 	of 	Trustees
decision 	recognizes 	in 	a 	limited 	way 	the 	interest 	which 	the
District 	urges 	here--the 	right 	of 	the 	writer 	of 	comments
regarding-a 	job 	applicant 	to 	prevent 	disclosure 	of 	his/her
written 	statements 	about 	the 	applicant.
However, 	the 	Board 	of 	Trustees 	case 	is 	distinguishable 	from
the 	instant 	case 	on 	its 	facts. 	In 	that 	case, 	the 	Court 	of
Appeal 	noted 	that 	Stanford 	had 	made 	a 	factual 	showing 	that 	the
letters 	had 	been 	"tendered 	under 	a 	guaranty 	of
confidentiality"(at 	p. 	527) 	and 	"obtained 	under 	expectation 	of
confidence" 	(at 	p. 	528). 	The 	Court 	decision 	quotes 	some 	of 	the
evidence 	which 	underlies 	these 	findings.
In 	the 	instant 	case, 	there 	is 	no 	such 	evidence. 	There 	is
no 	evidence 	that 	the 	District 	promised 	the 	raters 	that 	their
ratings 	would 	not 	be 	disclosed; 	and 	no 	evidence 	that 	the 	raters
required 	assurances 	of 	secrecy 	or 	non-disclosure 	before
providing 	their 	ratings 	or 	comments. 	In 	a 	proper 	case, 	the
reasoning 	of 	the 	Stanford 	case 	might 	well 	be 	applicable.
However, 	the 	factual 	basis 	for 	application of 	the
confidentiality 	analysis 	is 	lacking 	here.
Johnson 	v. 	Winters, 	supra, 	is 	similarly 	distinguishable.
The 	holding 	of 	the 	court 	in 	that 	case 	was 	that 	if 	information
(about 	a 	job 	applicant) 	is 	obtained 	with 	the 	explicit 	or
43

implicit 	understanding 	that 	the 	information 	will 	be 	kept
confidential, 	it 	is 	correct 	for 	a 	court 	to 	prevent 	its
disclosure. 	The 	court 	noted 	that 	the 	burden 	of 	demonstrating 	a
need 	for 	confidentiality 	rests 	on 	the 	agency 	claiming 	the
privilege. 	The 	District 	has 	not 	carried 	that 	burden 	in 	this
case. 	The 	contention 	that 	the 	raters' 	interest 	in maintaining
the 	"privacy" 	of 	their 	ratings 	is 	sufficient 	to prevent
disclosure 	of 	the 	ratings 	is 	rejected.26
Aside 	from 	the 	asserted 	rights 	of 	the 	applicants 	and 	of 	the
committee 	members, 	the 	District 	contends 	it 	has 	an 	independent
right 	to prevent 	disclosure 	of 	the 	ratings, 	to 	"maintain 	the
integrity of 	its 	negotiated 	procedure 	for 	voluntary 	transfer
selection."
As 	is 	true 	of 	the 	similar 	contentions 	regarding 	the 	privacy
interests of 	the 	applicants 	and 	of 	the 	raters, 	the 	District's
evidence 	does 	not 	support 	its 	argument. 	The 	District 	presented
no 	evidence 	to 	support 	its 	contention 	that 	it 	had 	reached
26The 	lack 	of 	evidence 	about 	how 	raters 	determined 	the
ratings 	to 	give 	applicants 	makes 	it 	particularly 	difficult 	to
decide 	that 	the 	raters 	had 	a 	protectable 	privacy 	interest 	in
their 	ratings. 	At 	the 	Burbank 	School, 	as 	noted 	above, 	raters
were 	called 	on 	to 	rate 	the 	applicants 	in 	areas 	which 	appear 	to
require 	detailed 	knowledge 	of 	the 	applicants' 	work 	histories
and 	habits. 	Among 	the 	categories 	of 	this 	nature 	were:
(6) 	ability 	to 	manage 	a 	classroom; 	and 	(7) 	ability 	to
communicate 	professionally 	with 	administrators, 	teachers, 	and
parents. 	If 	a 	committee 	member 	had 	no 	personal 	knowledge 	of
the 	applicant's 	abilities 	in 	this 	area 	and 	based 	his 	ratings 	of
the 	applicant 	only 	on 	second-hand 	knowledge 	or 	rumor, 	there
would 	be 	little 	reason 	to 	attach 	great 	weight 	to 	the 	rater's
interest 	in 	maintaining 	the 	privacy 	surrounding 	the 	ratings.
44

agreement, 	through 	negotiation, 	on 	a 	transfer 	selection
procedure 	which 	prevents 	disclosure 	of 	the 	information 	sought.
Aside 	from 	the 	contractual provision 	that 	the 	District 	use
job-related 	selection 	criteria, 	there 	is 	no 	evidence 	that 	the
procedure 	to 	choose 	among 	competing 	applicants 	was 	the 	subject
of 	any 	negotiations. 	There 	was 	no 	substantial 	evidence 	that
"confidentiality" 	of 	the 	ratings 	was 	the 	subject 	of
negotiations. 	Personnel 	Director 	J~nnings' 	vague 	hearsay
testimony 	was 	not 	credited 	on 	this 	point, 	and 	the 	District
offered 	no 	other 	evidence 	about 	the 	negotiations. 	Neither 	the
committee 	system 	nor 	the 	"confidentiality" 	of 	ratings 	is
mentioned 	in 	the 	contract.
In 	support 	of 	its 	argument 	on 	this 	point, 	the 	District
cites 	Board 	of 	Trustees 	v. 	Superior 	Court, 	supra, 	and
San 	Marino 	Unified 	School 	District, 	Case 	No. 	LA-CE-1372, 	a 	1982
proposed 	decision 	by 	an 	administrative 	law 	judge.
The 	factual 	differences 	between 	the 	instant 	case 	and 	the
Board 	of 	Trustees 	case 	have 	been 	noted. 	In Board 	of 	Trustees,
the 	university 	made 	a 	specific 	factual 	showing 	that 	it 	had
assured 	writers 	of 	letters 	of 	reference 	of 	confidentiality 	of
their 	written 	statements. 	The 	court's 	analysis 	of 	the
discoverability 	of 	the 	documents 	turned 	on 	that 	factual
circumstance, 	to 	a 	great 	degree. 	In 	the 	instant 	case, 	the
District 	has 	made 	no 	showing 	that 	its 	selection 	process 	is
dependent 	on 	promises 	of 	confidentiality 	to 	committee 	members.
45

This 	factual 	difference 	leads 	to 	a 	conclusion 	contrary 	to 	the
conclusion 	of 	the 	Court 	of Appeal 	in 	the 	Board 	of 	Trustees 	case.
In 	the 	San 	Marino 	case, 	the 	hearing 	officer 	concluded 	that
the 	teachers 	association 	was 	not 	entitled 	to 	obtain 	from 	the
district 	information 	identifying 	employees 	who 	had 	been
classified 	by 	the 	District 	as 	"master 	teachers," 	and 	disclosing
the 	salary 	paid 	to 	each 	master 	teacher.
There 	are 	several 	important 	factual 	differences 	between
that 	case 	and 	this 	one. 	First, 	the 	district 	in 	that 	case
provided 	the 	employee 	organization 	with 	extensive, 	detailed
information, 	including 	information 	about 	salaries, 	withholding
only 	the 	names 	of 	individuals, 	which 	the 	association 	continued
to 	seek. 	Second, 	in 	San 	Marino, 	the 	association 	negotiator
could 	not 	explain, 	during 	the 	hearing, 	to 	what 	use 	the
association 	would 	put 	the 	additional 	information. 	Third, 	the
association 	and 	the 	district 	had 	agreed, 	explicitly, 	in 	the
previous 	collective 	bargaining 	agreement, 	that 	the 	master
teacher 	evaluation 	process 	was 	to 	be 	confidential.
All of 	these 	facts 	were 	of 	significance 	in 	the 	analysis 	by
the 	administrative 	law 	judge 	in 	San Marino. 	There 	are no
similar 	circumstances 	here. 	Therefore, 	the 	decision 	in 	the
San 	Marino 	case 	cannot 	serve 	as 	a 	useful 	precedent 	in 	this
case. 	The 	District's 	contention 	that 	its 	own 	interest 	in
preventing 	disclosure 	is 	sufficient 	to 	outweigh 	the 	interest 	of
the 	Association 	in 	obtaining 	the 	information 	is 	rejected.
46

The 	District 	in 	its 	post-hearing 	brief 	urges 	another,
related 	argument: 	as 	a 	public 	entity, 	the 	District, 	under
California 	law, 	has 	an 	"affirmative 	duty" 	to 	refuse 	to 	disclose
materials 	obtained 	in 	confidence. 	Assuming 	the 	general
validity 	of 	the 	argument, 	it 	falls 	short 	in 	this 	case 	because
the 	District 	has 	failed 	to 	show 	that 	it 	possesses, 	and 	is
seeking 	to 	protect, 	any 	information 	which 	is 	both 	sought 	by 	the
Association 	and 	was 	obtained 	by 	the 	District 	on 	a 	promise 	of
non-disclosure.
The 	District 	raised 	in 	its 	answer 	to 	the 	complaint 	several
affirmative 	defenses 	which 	it 	did 	not 	argue 	in 	its 	post-hearing
brief.
As 	its 	first 	such 	defense, 	the 	District 	notes:
Charging 	Party 	has 	failed 	to 	exhaust 	the
contractually 	agreed 	upon 	grievance
machinery.
PERB 	is 	not 	required, 	by 	statute 	or 	otherwise, 	to 	defer 	to 	a
contractual 	grievance 	procedure 	which, 	like 	the 	one 	agreed 	to
by 	the 	District 	and 	the 	Association, 	does 	not 	include 	a
provision 	for 	binding 	arbitration 	by 	a 	neutral 	third 	party.
Section 	3541.S(a); 	Pittsburg 	Unified 	School 	District 	(3/15/82)
PERB 	Decision 	No. 	199.
Second, 	the 	District 	asserts 	that 	it 	and 	the 	Association
reached 	agreement 	on,
• 	how 	information 	will 	be 	provided 	on
the 	reasons 	for 	non-selection 	of 	an 	employee
for 	a 	voluntary 	transfer. 	Respondent 	has
complied 	with 	the 	negotiated 	procedure.
47

There 	is 	no 	such 	agreement 	explicit 	in 	the 	contract, 	and 	the
District 	has 	failed 	to 	prove 	with 	any 	other 	evidence 	that 	such
an 	agreement 	was 	reached. 	The 	defense 	is 	rejected.
Finally, 	the 	District 	contends 	that:
MTA 	has 	waived 	any 	alleged 	right 	to 	obtain
copies 	of 	the 	rating 	sheets 	by 	negotiating
an 	alternate 	procedure 	for 	provision of 	this
information.
Again, 	the 	District 	was 	unable 	to 	present 	any 	evidence 	in
support 	of 	its 	waiver 	argument. 	An 	employer 	which 	asserts 	that
an 	employee 	organization 	has 	waived 	its 	statutory 	rights 	to
meet 	and 	negotiate 	has 	the 	burden of 	proof 	with 	respect 	to 	this
assertion. 	Amador 	Valley 	Joint 	Union 	School 	District 	(10/2/78)
PERB 	Decision 	No. 	74. 	The 	District 	was 	unable 	to 	present
competent 	evidence 	about 	any 	such 	waiver 	by 	the 	Association
during 	negotiations, 	and 	there 	is 	no 	explicit 	waiver 	in 	the
contract. 	The 	defense 	is 	rejected.
VIOLATIONS
Based 	on 	the 	findings 	and 	analysis 	set 	forth 	above, 	it 	is
concluded 	that 	the 	District 	violated 	section 	3543.S(c) 	of 	the
EERA 	by 	refusing 	to 	provide 	to 	the 	Association .the 	information
which 	the 	Association 	sought, 	to 	aid 	it 	in 	the 	prosecution 	of
contract 	grievances: 	the 	rating 	sheets 	of 	the 	applicants 	for
positions 	for 	which 	Ahart 	and 	Benneche 	applied. 	Further, 	it 	is
concluded 	that 	the 	District, 	by 	the 	same 	conduct, 	violated
section 	3543.S(b) 	by 	denying 	to 	the 	Association 	its 	statutory
right 	as 	an 	exclusive 	representative 	of 	the 	certificated
48

employees 	of 	the 	District 	to 	represent 	unit 	members 	in 	their
employment 	relations 	with 	the 	District. 	San 	Francisco
Community 	College 	District 	(10/12/79) 	PERB 	Decision 	No. 	105.
Finally, 	it 	is 	concluded 	that, 	by 	the 	same 	conduct, 	the
District violated 	the 	rights 	of 	at 	least 	some 	employees 	of 	the
District, 	and 	thus 	violated 	section 	3543.S(a). 	San 	Francisco
Community 	College 	District, 	supra.
REMEDY
Section 	3541.S(c) 	of 	the 	EERA 	states:
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
th is 	chapter.
A customary 	remedy 	in 	a 	case 	in 	which 	it 	is 	found 	that 	an
employer 	violates 	section 	3543.S(c) 	is 	the 	issuance 	of 	a
cease-and-desist 	order, 	and 	an 	order 	to 	the 	respondent 	to
restore 	the 	status 	quo 	ante. 	In 	Stockton 	Unified 	School
District 	(11/3/80) 	PERB 	Decision 	No. 	143, 	and 	in
Mt. 	San 	Antonio 	Community 	College 	District 	(6/30/82) 	PERB
Decision 	No. 	224 	(each 	of 	which 	concerned 	an 	employer's 	refusal
to provide 	information 	to 	the 	exclusive 	representative 	of 	the
respondent's 	employees), 	PERB 	ordered 	the 	respondent 	to 	provide
to 	the 	exclusive 	representative, 	upon 	request, 	the 	information
previously 	withheld.
49

Accordingly, 	and 	in 	consistency 	with 	those 	decisions, 	the
District 	will 	be 	ordered 	to 	cease 	and 	desist 	from 	its 	unlawful
conduct, 	and 	to provide 	to 	the 	Association, 	upon 	request, 	the
rating 	sheets 	of 	the 	applicants, 	including 	Benneche 	and 	Ahart,
who 	sought 	the 	positions 	for 	which 	Benneche 	and 	Ahart 	applied,
with 	two 	provisions. 	First, 	for 	the 	rating 	sheets 	of
applicants 	other 	than 	Benneche 	and 	Ahart, 	the 	District may
conceal 	the 	names 	of 	the 	applicants 	before 	disclosing 	the
rating 	sheets 	to 	the 	Association. 	Second, 	the 	District 	may
also 	disguise 	the 	names 	of 	the 	raters, 	unless 	and 	until 	the
Association 	shows 	that 	it 	needs 	these 	names 	for 	its
determination 	of 	whether 	and 	how 	to 	proceed 	in 	the 	grievance
procedure. 	This 	remedy 	is 	consistent 	with 	NLRA precedent 	in
this 	area. 	See, 	e.g. 	Teleprompter 	Corporation 	v. 	NLRB
(1st 	Cir. 	1977) 	570 	F.2d 	4 	[97 	LRRM 	2455]; 	Latimer 	Brothers
(1979) 	242 	NLRB-No. 	23 	[101 LRRM 	1088]; 	G. 	J. 	Aigner 	Company
(1981) 	257 	NLRB 	No. 	93 	[107 	LRRM 	1586].
However, 	disclosure 	at 	this 	time 	of 	the 	information 	sought
by 	the MTA 	in 	the 	fall 	and 	winter 	of 	1981-82 	may 	not 	be
adequate 	to 	restore 	the 	status 	quo 	ante. 	Prior 	to 	the 	PERB
hearing 	in 	this 	case, 	a 	hearing 	on 	the 	underlying 	grievances
took 	place 	before 	an 	arbitrator. 	It 	has 	been 	concluded 	herein
that 	the MTA 	was 	disadvantaged 	in 	that 	arbitration 	proceeding,
and 	in 	the 	two 	steps 	of 	the 	grievance 	procedure 	which 	preceded
the 	hearing, 	by 	the 	District's 	withholding 	of 	the 	information
50

sought 	by 	the 	Association. 	To 	remedy 	these 	consequences 	of 	the
District's 	unlawful 	action, 	the 	following 	will 	be 	ordered. 	If,
after 	the MTA 	receives 	the 	required 	information 	from 	the
District, 	the 	MTA 	seeks 	to 	reopen 	the 	grievance 	procedures 	or
the 	arbitration 	proceeding 	on 	one 	or 	more 	of 	the 	underlying
grievances, 	for 	the 	presentation 	as 	evidence 	of 	information
newly 	disclosed 	to 	it 	pursuant 	to 	the 	order 	in 	the 	instant
case, 	the 	District 	shall 	not 	interpose 	procedural objections
(timeliness, 	res 	judicata 	or 	the 	like) 	to 	that 	Association
request. 	It 	is 	not 	the 	intent 	of 	the 	order 	to 	preclude 	the
District 	from 	opposing 	the 	introduction of 	evidence 	on
relevance 	or 	other 	substantive 	grounds.
This 	aspect 	of 	the 	order 	is 	needed 	to 	restore 	the 	MTA 	to
the 	position 	in 	which 	it 	would 	have 	been 	had 	the 	District 	not
acted 	unlawfully. 	Without 	inclusion 	of 	this 	provision, 	the
District may 	be 	able 	to 	benefit 	by 	its 	unlawful 	conduct.
In 	several 	decisions, 	PERB 	has 	recognized 	that 	in 	cases 	of
violations 	of 	an 	employer's 	duty 	to 	meet 	and 	negotiate 	with 	an
employee 	organization, 	an 	order 	requiring 	the 	employer 	to 	cease
and 	desist 	from 	its 	unlawful 	conduct, 	and 	to 	comply 	with 	its
statutory 	obligation, 	may 	not 	be 	sufficient 	to 	remedy 	the 	wrong
that 	was 	done.
In 	Oakland 	Unified 	School 	District 	(4/23/80) 	PERB 	Decision
No. 	126, 	aff'd., Oakland 	Unified 	School 	District 	v. 	PubJic
Employment 	Relations 	Board 	(1981) 	120 	Cal.App.3d 	1007, 	PERB
51

ordered 	the 	respondent 	district 	to 	undo 	its 	unilateral 	change
(by 	withdrawing 	from 	its 	agreement 	with 	one 	medical 	plan
administrator, 	and 	renewing 	its 	agreement 	with 	the 	initial
administrator). 	In 	addition, 	however, 	PERB 	ordered 	the
District 	to 	compensate 	individual 	employees 	who 	had 	suffered
specific 	losses 	as 	a 	result 	of 	the 	illegal change 	of 	the 	plan
administrator.
In 	Rialto 	Unified 	School 	District 	(4/30/82) 	PERB 	Decision
No. 	209, 	PERB 	ordered 	the 	respondent 	school 	district 	to
negotiate 	with 	the 	exclusive 	representative 	of 	the 	district's
certificated 	employees 	about 	the 	effects 	of 	the 	district's
decision 	to 	transfer 	work 	out 	of 	the 	bargaining 	unit. 	The
Board 	also 	ordered 	the 	district 	to 	reimburse 	certificated
employees 	who 	were 	adversely 	affected 	by 	the 	unilateral
decision.
Similarly, 	in 	Solano 	Unified 	School 	District 	(6/30/82) 	PERB
Decision 	No. 	219, 	the 	Board 	recognized 	that,
Under 	the 	present 	circumstances, 	however, 	a
bargaining 	order 	alone 	cannot 	serve 	as 	an
adequate 	remedy. 	(Solano 	Unified 	School
District, 	supra, 	at 	p. 	17.)
Again 	the 	Board 	ordered 	the 	District 	to 	compensate 	classified
employees 	who 	were 	adversely 	affected 	by 	the 	district's
decision 	to 	transfer 	work 	out 	of 	the 	classified 	employees 	unit.
In 	this 	case, 	there 	is 	no 	certainty 	that 	any 	particular
employee 	suffered 	financial 	losses 	as 	a 	result 	of 	the
District's 	unlawful 	conduct. 	(There 	is 	no 	certainty 	that 	the
52

MTA 	would 	have 	been 	successful 	in 	a 	grievance 	or 	arbitration
proceeding 	if 	the 	District 	had 	submitted 	to 	the 	Association 	the
information 	at 	issue.) 	However, 	the 	Association 	was 	without
doubt 	adversely 	affected; 	it 	was 	unable 	to 	use 	the 	withheld
information 	in 	the 	grievance 	processing, 	or 	in 	the 	eventual
arbitration 	proceeding. 	For 	that 	reason, 	the 	MTA 	must 	now 	be
given 	the 	opportunity 	to 	use 	the 	withheld 	information 	in 	the
grievance 	procedure, 	or 	in 	an 	arbitration 	hearing, 	if 	it
chooses 	to 	do 	so. 	The 	proposed 	remedy 	is 	intended 	to make 	that
possible.
This 	aspect 	of 	the 	proposed 	remedial order 	is 	also
consistent 	with 	NLRA precedent 	in 	cases 	in 	which 	an 	employer 	is
found 	to 	have 	withheld 	needed 	information 	from 	a 	union 	which 	is
the 	exclusive 	representative 	of 	the 	employees. 	In 	a 	number 	of
such 	cases, 	the 	NLRA has 	included 	in 	its 	remedial 	order 	a
provision 	granting 	to 	the 	union 	which 	had 	been 	deprived 	of
needed 	information 	additional 	rights 	in 	its 	relationship 	with
the 	employer. 	In 	John 	S. 	Swift 	Company, 	Inc. 	(1961)
133 	NLRB 	185 	[48 	LRRM 	1601] 	enf. 	302 	F.2d 	342 	[50 	LRRM 	2017],
the 	NLRB 	ordered 	that 	the 	union's 	"certification 	year" 	be
extended, 	and 	begin 	to 	run 	only 	after 	the 	employer 	had 	provided
the 	needed 	information. 	In 	G. 	J. 	Aigner 	Company 	(1981)
257 	NLRB 	No. 	93 	[107 	LRRM 1586], 	the 	Board 	ordered 	the
certification 	period 	to 	be 	extended 	"a 	reasonable 	time" 	beyond
the 	original year. 	In 	each 	case, 	the 	Board's 	rationale 	was
53

that 	without 	the 	withheld 	information 	the 	union 	in question 	had
been 	unable 	to 	fulfill 	its 	statutory 	bargaining 	duty, 	and 	had
not 	enjoyed 	its 	full 	statutory 	rights. 	Simiarly, 	in 	this 	case
the 	MTA 	was 	unable 	to 	carry 	out 	fully 	its 	statutory 	duty 	to
represent 	the 	employees 	in 	its 	bargaining 	unit, 	and 	was 	unable
to 	fully 	enjoy 	its 	statutory 	rights 	to 	represent 	these
employees, 	without 	the 	withheld 	information.
It 	also 	is 	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 	Modesto 	City
Schools 	and 	High 	School 	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 	Modesto 	City 	Schools 	and 	High 	School 	District 	has
acted 	in 	an 	unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and
desist 	from 	this 	activity 	and 	to 	compensate 	the 	Association 	for
losses 	incurred 	as 	a 	consequence 	of 	its 	unlawful 	action. 	It
effectuates 	the 	purposes 	of 	the 	EERA 	that 	employees 	be 	informed
of 	the 	resolution 	of 	the 	controversy 	and 	will 	announce 	the
Modesto 	City 	Schools 	and 	High 	School 	District's'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 	posting 	requirement. 	The
U.S. 	Supreme 	Court 	approved 	a 	similar 	posting 	requirement 	in
NLRB 	v. 	Express 	Publishing 	Co. 	(1941) 	312 	U.S. 	426 	[8 	LRRM 	415].
54

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to
section 	354l(c), 	it 	is 	hereby 	ordered 	that 	the 	Modesto 	City
Schools 	and 	High 	School 	District 	and 	its 	representatives 	shall:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Failing 	and 	refusing 	to 	provide 	the 	Modesto
Teachers 	Association 	with 	all 	relevant 	information 	and
documents 	needed 	by 	the 	Association 	to 	prosecute 	contract
grievances 	on 	behalf 	of 	certificated 	employees 	of 	the 	District.
2. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(a) 	Upon 	request 	by 	the 	Modesto 	Teachers 	Association,
provide 	to 	the 	Association 	the 	rating 	sheets 	of 	all 	applicants
for 	the 	position 	to 	which 	Merle Benneche 	and 	Gladys 	Ahart
applied 	to 	transfer 	in 	the 	1981-82 	academic 	year; 	provided 	that
the 	District 	may 	disguise 	the 	names 	of 	the 	raters; 	and 	provided
also 	that 	for 	the 	rating 	sheets 	of 	applicants 	other 	than
Benneche 	and 	Ahart, 	the 	District 	may 	conceal 	the 	names 	of 	the
applicants 	before 	disclosing 	the 	rating 	sheets 	to 	the
Association.
(b) 	If 	the 	Modesto 	Teachers 	Association 	seeks 	to
reopen 	one 	or 	more 	of 	the 	grievances 	filed 	by 	Merle 	Benneche
and 	Gladys 	Ahart, 	or 	seeks 	to 	reopen 	the 	arbitration 	proceeding
concerning 	those 	grievances, 	refrain 	from 	interposing 	any
55

procedural 	objection 	(timeliness, 	res 	judicata 	or 	the 	like} 	to
the 	reopening 	sought 	by 	the 	Association.
(c} 	Within 	five 	(5} 	workdays 	after 	this 	decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the 	NOTICE 	TO
EMPLOYEES 	attached 	as 	an 	appendix 	hereto, 	for 	at 	least 	thirty
(30} 	workdays 	at 	its 	headquarters 	offices 	and 	in 	conspicuous
places 	at 	the 	location 	where 	notices 	to 	employees 	are
customarily 	posted. 	It 	must 	not 	be 	reduced 	in 	size 	and
reasonable 	steps 	should 	be 	taken 	to 	see 	that 	it 	is 	not 	defaced,
altered 	or 	covered 	by 	any 	material.
(b} 	Within 	twenty 	(20} 	workdays 	from 	service 	of 	the
final 	decision 	herein, 	give 	written 	notification 	to 	the
San 	Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	of 	the 	actions 	taken 	to 	comply 	with 	this
order. 	Continue 	to 	report 	in 	writing 	to 	the 	regional 	director
thereafter 	as 	directed. 	All 	reports 	to 	the 	regional 	director
shall 	be 	concurrently 	served 	on 	the 	Charging 	Party 	herein.
IT 	IS 	FURTHER ORDERED all 	other 	violations 	are 	hereby
DISMISSED.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on 	May 	23, 	1983, 	unless 	a 	party 	files 	a 	timely
statement 	of 	exceptions. 	In 	accordance 	with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify 	by 	page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
56

exceptions. 	See 	California 	Administrative 	Code 	title 	8,
part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	at 	its 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.} 	on 	May 	23,
1983, 	or 	sent 	by 	telegraph 	or 	certified 	United 	States 	mail,
postmarked 	not 	later 	than 	the 	last 	day 	for 	filing 	in 	order 	to
be 	timely 	filed. 	See 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32135. 	Any 	statement 	of 	exceptions 	and
supporting 	brief must 	be 	served 	concurrently 	with 	its 	filing
upon 	each 	party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be
filed 	with 	the 	Board 	itself. 	See 	California 	Administrative
Code, 	title 	8, 	part 	III, 	sections 	32300 	and 	32305.
Dated: 	May 	3, 	1983
57
MARTIN 	FASSLER
Administrative 	Law Judge
a