Modesto City Schools and High School District (PERB 0518E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
MODESTO CITY 	SCHOOLS AND 	HIGH 	SCHOOL
DISTRICT,
Respondent.
Case 	No. 	S-CE-741
PERB 	Decision 	N O . 	518
August 	26, 	1985
Appearances: 	Kirsten L. 	Zerger, 	Attorney for 	the Modesto
Teachers Association, CTA/NEA; Breon, Galgani, Godino &
O'Donnell 	by Sharon 	M. 	Keyworth, 	Attorney 	for 	Modesto 	City
Schools 	and High 	School 	District.
Before Hesse, 	Chairperson; 	Jaeger and Burt, 	Members.
DECISION
BURT, 	Member: 	This case is before 	the public Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed by the
Modesto City Schools 	and High 	school 	District 	(District) 	to 	the
attached 	proposed 	decision 	of 	an 	administrative 	law 	judge 	(ALJ)
finding that the District violated section 3543.5(a), 	(b) 	and
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(c) 	of 	the 	Educational 	Employment Relations Act 	(EERA) 	by
its 	failure 	to provide 	information 	in 	connection with
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless otherwise 	indicated, 	all 	statutory references
herein 	are 	to 	the Government 	Code.
Section 3543.5 provides, 	in relevant part:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
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grievances. 	The Modesto Teachers Association, 	CTA/NEA
(Association) 	also filed exceptions, 	excepting to the ALJ's
failure 	to award 	costs 	of 	litigation.
On exception, 	among other 	things, 	the District 	renews 	its
claim 	that 	the 	information 	requested 	with 	regard 	to 	the
Leonard 	Choate 	grievance was 	irrelevant. 	We 	find 	that 	issue
adequately disposed 	of by 	the ALJ's 	decision, 	with 	one
exception. 	The 	District 	argues 	throughout 	that 	information
regarding previous 	requests 	for 	"personal 	leave" 	was
irrelevant, 	since 	Choate had only made a 	request 	for 	either
"partial 	paid 	leave" 	or 	"personal 	necessity 	leave." 	The ALJ
makes 	clear 	that his 	discussion of 	relevance 	is 	intended 	to
apply only 	to 	information 	regarding 	the 	two 	latter 	categories
of 	leave 	request, 	since the 	request 	for 	"personal 	leave"
information was 	not 	covered 	by 	the 	complaint. 	His 	proposed
order, 	however, 	does not 	clearly exclude 	information 	regarding
"personal 	leave" 	from production. 	The Association makes 	no
(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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argument why 	"personal 	leave" 	information 	is 	relevant, 	and we
therefore 	clarify 	the 	proposed 	order 	to 	exclude 	production 	of
that 	information.
We 	also 	reject 	the 	Association's 	claim 	that 	litigation
costs 	should be 	awarded 	in 	this 	case, 	In 	King 	City 	High 	School
District Association, 	et al. 	(Cumero) 	(1982) 	PERB Decision
No. 	197 	(S.F. 	24905, hearing granted July 12, 	1985), 	the Board
adopted 	the 	National 	Labor 	Relations 	Board's 	standard 	for
determining when 	fees 	should 	be 	awarded 	in 	unfair 	practice
cases.
[A]ttorney's 	fees will 	not 	be 	awarded 	to 	a
charging party unless 	there 	is 	a 	showing
that 	the 	respondent's 	unlawful 	conduct 	has
been 	repetitive 	and 	that 	its 	defenses 	are
without 	arguable merit. 	(P.26.)
See also Heck's, 	Inc. 	(1974) 	215 NLRB 765 	[88 LRRM 1049],
holding 	that 	fees 	are 	not 	appropriate 	where 	defenses 	are 	at
least 	"debatable." 	We 	do 	not 	find 	that 	standard 	to have 	been
met 	here, 	and we 	therefore 	decline 	to award 	costs 	of 	litigation
to 	the Association.
The 	Board 	has 	reviewed 	the 	entire 	record, 	including 	the
exceptions 	filed by 	the 	District 	and 	the 	Association. 	Finding
no prejudicial 	error 	in 	the ALJ's 	findings 	of 	fact 	or
conclusions of 	law, 	we 	adopt 	his 	decision as 	that of 	the Board
itself 	as 	clarified by 	the 	discussion 	above.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	the 	case, 	it 	is hereby ORDERED 	that
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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, 	CTA/NEA, 	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,
CTA/NEA, 	provide 	to 	the 	Association 	the 	requested 	information
regarding art 	classes at 	Downey High 	School, 	and 	regarding
partial 	paid 	and 	personal 	necessity 	leave.
(b) 	If 	the Modesto Teachers Association, 	CTA/NEA,
seeks 	to 	reopen 	the 	grievances 	filed 	by Patricia 	Gurney 	and
Leonard Choate, 	or 	seeks 	to 	reopen an arbitration proceeding
concerning 	those 	grievances, 	refrain 	from 	interposing 	any
procedural 	objection 	such 	as 	timeliness 	or 	res 	judicata 	to 	the
reopening 	sought 	by 	the 	Association.
(c) 	Within 	thirty-five 	(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 	thirty 	(30) 	consecutive
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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 	Sacramento 	regional
director 	of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance
with 	his/her 	instructions.
Member 	Jaeger 	joined 	in 	this 	Decision.
Chairperson 	Hesse's 	concurrence 	begins 	on 	page 	6.
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Hesse, 	Chairperson, 	concurring: 	I agree with the majority
decision 	that 	the 	employer 	must provide 	the Association with
personal partial paid 	leave 	request 	and personal 	necessity
leave request 	information.1 In so doing, 	I cannot adopt
portions 	of 	the proposed decision 	relating 	to the 	credibility
of witness Mel 	Jennings 	and 	the discussion of 	the attorney's
fees 	award. 	My concern 	is 	that 	this 	dicta may be 	used 	in
future 	cases 	to charge a 	"fixed anticipatory prejudgment" 	or
"personal bias" 	against 	this 	Board. 	In re Marriage of Fenton
(1982) 	134 Cal.App.3d 451. 	I realize such bias and prejudgment
does 	not 	exist 	with this ALJ nor 	the 	Board 	itself, 	but 	some
readers 	may not be 	so convinced. 	By this 	separate 	concurrence,
I wish 	to avoid such controversies 	in 	the 	future.
At great 	length, 	the ALJ states 	the 	reasons 	for discounting
the testimony of 	the employer's principal witness, 	Mel Jennings,
even though Jennings' 	testimony was 	not 	directly 	impeached by
the Association.
2
Further, 	Jennings' 	testimony regarding 	the
1 I would 	further 	restrict 	production 	of personal
necessity leave 	information 	to 	those 	requests 	made 	in
accordance 	with 	"the professionally related 	conference 	or
class" 	and 	"the participation 	in special 	events 	or honors"
provisions 	of Article V in 	the 	1982-84 collective bargaining
agreement. 	The 	initial 	grievance 	submission 	form states 	an
intent 	to apply the two provisions. 	Therefore, 	production
should be 	limited 	to 	requests 	made 	under 	these provisions.
2Jennings' 	testimony was 	in 	support 	of 	the 	employer's
claim that 	the 	request was burdensome. 	Jennings 	testified 	that
it would 	take 	"up to 10 minutes" 	to search each personnel 	file
for 	the 	requested 	information. 	On cross-examination, 	the
Association was 	able 	to get 	Jennings 	to modify his 	estimate 	to
"eight 	to ten minutes".
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"Karam" 	case was 	discounted, 	yet 	the Karam case was 	settled 	two
years prior 	to 	the hearing and 	is 	not 	an 	issue 	in 	the 	instant
case. 	So, 	it 	is hardly surprising Jennings' 	testimony was
"evasive" 	or 	"reluctant." 	These credibility resolutions 	do not
appear 	to 	consider 	the 	standard 	set 	by 	the 	California 	Supreme
Court 	in Martori 	Brothers 	Distributors 	v. 	Agricultural 	Labor
Relations 	Board 	(1981) 	29 Cal.3d 721. 	The Court said:
An administrative 	agency must 	accept 	as 	true
the 	intended meaning 	of 	uncontradicted and
unimpeached evidence. 	(Id., 	at p. 	728.)
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Jennings' 	testimony cannot be measured by 	isolating 	the 	fact
that 	the 	employer presented only one witness, 	thus 	impliedly
finding 	it 	immaterial 	that 	the Association did not present
contradictory evidence or 	rebuttal 	witness.
In similar decisions, 	the Board has 	given great deference
to the credibility resolutions 	of 	the ALJ, 	but 	those
credibility determinations 	are not absolute. 	This 	Board 	is
empowered 	to consider 	the entire 	record and 	is 	free 	to make 	its
own credibility determinations. 	Santa 	Clara 	Unified 	School
District 	(1979) 	PERB Decision No. 	104; 	Los Rios Community
College District 	(1985) 	PERB Decision No. 	499. 	Here, 	the
demeanor 	evidence resolution is 	not 	challenged. 	I simply
cannot divine a 	"rational basis" 	(Martori, 	supra, 	728) 	for
disbelieving Jenning's 	testimony, 	in toto. 	Some 	significance
must be accorded 	to 	the absence of 	contradictory, 	rebuttal
evidence 	on both 	the 	relevance 	and burdensomeness 	of 	the
information 	request 	made 	on behalf 	of 	Leonard 	Choate.
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While 	the ALJ seemed 	to 	feel 	that 	the 	substance of 	the
employer's 	claims 	were doubtful, 	I do not 	find 	the employer's
defenses 	to be 	either 	frivolous 	or 	without 	arguable
justification. 	Due 	to the 	timing of our 	decision 	in another
case with the 	same parties, 	and the 	sustainment of 	the
irrelevant defense of 	the personal 	leave 	information request, 	I
heartily 	concur 	with 	the 	majority 	finding 	on 	litigation
costs.3
w	3
3See Modesto 	City 	Schools 	and 	High 	School 	District 	(1985)
PERB Decision No. 	479 where 	the employer 	is 	ordered to produce
information 	requested by the Association. 	It 	should be noted
that 	PERB Decision No. 	479 	issued 	two months 	after 	exceptions
were 	filed here. 	There was 	insufficient 	time 	for 	the employer
to settle 	and withdraw the 	exceptions 	to 	this 	case.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	state of 	California
After 	a hearing 	in Unfair Practice Case No. 	S-CE-741,
Modesto 	Teachers 	Association, 	CTA/NEA 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 	section
3543.5(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, 	CTA/NEA, 	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,
CTA/NEA, 	provide 	to 	the Association 	the 	requested 	information
regarding art 	classes 	at 	Downey High 	School, 	and 	regarding
partial 	paid 	and 	personal 	necessity 	leave.
(b) 	If the Modesto Teachers Association, 	CTA/NEA,
seeks 	to 	reopen 	the 	grievances 	filed by Patricia 	Gurney and
Leonard Choate, 	or 	seeks 	to reopen an arbitration proceeding
concerning 	those 	grievances, 	refrain 	from 	interposing 	any
procedural 	objection 	such 	as 	timeliness or 	res 	judicata 	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 OTHER
MATERIAL.
•

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
MODESTO TEACHERS 	ASSOCIATION,
Charging 	Party,
v.
MODESTO 	CITY SCHOOLS AND
HIGH 	SCHOOL 	DISTRICT,
Respondent.
)
) 	Unfair Practice
Case No. 	S-CE-741
PROPOSED 	DECISION
(10/9/84)
)
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Appearances; 	Ken 	Burt 	and Kirsten 	Zerger 	for the Modesto
Teachers 	Association; 	Keith Breon and Sharon Keyworth 	(Breon,
Galgani, 	Godino 	& O'Donnell) 	for the Modesto City Schools 	and
High 	School 	District.
Before; 	Barry Winograd, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
The 	issue 	to be 	decided 	in this 	case 	is 	whether 	the
employer 	unlawfully 	failed 	to 	provide 	information 	relevant 	to
the 	evaluation and pursuit 	of 	two 	contractual 	grievances. 	On
March 14, 	1984, 	the Modesto Teachers Association 	(hereafter
Association) 	filed this 	charge 	against 	the Modesto City Schools
and High School District 	(hereafter District). 	The 	charge
alleged that 	a variety of 	employer 	actions 	were 	unlawful,
including the 	refusal 	to 	provide 	information 	in 	connection with
grievances.
The General 	Counsel's office 	dismissed part 	of 	the 	charge
on April 27, 	1984 and an amended charge was filed on May 14,
(
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1984. 	Part 	of 	the 	amended charge was 	dismissed on May 21,
1984, 	and, 	on the same 	date, 	a 	complaint 	issued on the
remaining allegations. 	(The Association 	is 	presently appealing
the 	partial 	dismissal 	of 	its 	charge.)
The 	complaint 	alleged that 	the 	District 	refused to provide
relevant 	information 	in 	connection with 	contractual 	grievances
in violation of sections 3543.5(a), 	(b) 	and (c) of the
Educational 	Employment 	Relations 	Act 	(hereafter 	EERA or 	Act).l
The District 	filed its 	answer on June 	11, 	1984, 	admitting
its 	status 	as 	the 	employer 	and the Association's 	as 	exclusive
1The 	EERA is 	codified at 	section 3540 et 	seq. 	of 	the
Government 	Code 	and 	is 	administered 	by the 	Public Employment
Relations Board 	(hereafter PERB or 	Board). 	Unless 	otherwise
stated, 	all 	statutory references 	in this 	decision 	are to the
Government 	Code. 	Section 3543.5 provides 	in relevant 	part 	that
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.
The 	General 	Counsel's 	complaint 	alleged 	that 	the 	District's
conduct 	constituted a 	failure 	and refusal 	to bargain in 	good
faith, 	violating section 3543.5(c), 	and that the 	conduct also
was a 	derivative violation of 	sections 	3543.5(a) 	and 	(b). 	The
complaint 	that 	issued 	covered three grievances, 	but 	one of 	the
disputes 	was 	withdrawn prior 	to the 	start 	of 	the 	formal 	hearing,
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representative, 	but 	otherwise 	denying the 	allegations 	of 	the
complaint. 	The 	District 	also advanced affirmative 	defenses
which will 	be 	considered 	below.
A settlement 	conference was 	conducted on June 	11, 	1984, 	but
the 	case was 	not 	resolved. 	The 	formal 	hearing was held on
July 30, 	1984, 	in Stockton, 	California. 	Post-hearing briefs
were 	filed 	by the 	parties 	and the matter was 	submitted 	for
decision on September 21, 	1984.
FINDINGS 	OF 	FACT
A. 	Background.
At 	the 	time this case arose, 	the District 	and the
Association were 	parties 	to 	a three-year 	collective 	bargaining
agreement 	that 	was 	in effect 	through June 	1984. 	The
contractual 	grievance 	procedure was 	designed,
. . . 	to secure, 	at the 	lowest possible
administrative level, 	equitable solutions 	to
the 	problems 	which may from 	time 	to time
arise 	concerning the 	interpretation or
application of 	this agreement. 	(CP.Ex. 	1,
p. 3-1.)2
The 	first step of 	the procedure, 	after 	at 	least one private
conference between 	an 	employee 	and a supervisor, 	required a
written 	filing by either 	the 	Association or 	an 	aggrieved
employee with the 	appropriate 	building administrator. 	The
second 	step was 	an 	appeal 	to the 	District's 	superintendent.
2Charging party exhibits 	will 	be 	designated as 	"CP.Ex."
and Respondent's 	as 	"Resp.Ex."
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The 	third 	step 	involved advisory arbitration. 	At 	the 	fourth
step, 	the 	superintendent 	(but 	not 	the Association or 	an
employee) 	could appeal 	an 	arbitration 	decision to the 	board of
education for 	a final, 	binding decision.
Use of 	the 	arbitration procedure 	served as 	a waiver 	of
legal 	or 	statutory rights 	related to the 	grievance. 	However,
if 	a 	decision favorable to a 	grievant 	was 	rejected by the
school board, 	legal 	remedies 	could be pursued.
While 	the 	contract 	did 	not 	contain 	language 	expressly
providing 	for 	disclosure by 	the 	employer 	of 	information
relevant 	to pending grievances, 	the 	arbitration provision did
state that 	the 	parties 	would be 	afforded,
. 	. 	. 	a reasonable opportunity to present
evidence, 	witnesses and arguments. 	(Id.,
-	p. 	3-5.)
Thereafter, 	the 	arbitration provision 	limited the 	arbitrator 	to,
. 	. 	. 	consider only those issues which have
been 	properly carried 	through 	all 	prior 	steps
of 	the Grievance 	Procedure. 	Neither 	party on
its 	own 	initiative 	shall 	be 	allowed to 	intro-
duce 	evidence 	to the 	arbitrator which was
known but 	not 	introduced prior 	to Step 	III.
(Id., p. 	3-5.)
The 	overall 	time limits 	of 	the 	grievance 	procedure
indicating the 	passage of 	days 	at 	each level 	were,
. 	. 	. 	considered a maximum, 	requiring every
effort 	to expedite the process. 	(Id.,
p. 	3-6.)
Regarding expenses, 	the 	grievance 	procedure stated that 	each
party was,
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. 	. 	. 	responsible for payment for the cost
of preparing its 	case. 	(Id., 	p. 	3-5.)
Specific 	provisions 	of 	the 	collective 	agreement 	related to
the 	grievances 	in this 	case will 	be 	discussed hereafter 	in
connection with those 	disputes.
During the 	life of 	the 	three-year 	bargaining agreement 	the
Association had a 	grievance 	processing 	committee 	to 	oversee the
investigation and pursuit 	of 	claims, 	working in conjunction
with Ken Burt, 	the organization's 	executive 	director. 	The
committee was 	chaired by Kathleen Hackett, 	a teacher. 	After 	an
employee 	seeking to 	file 	a 	grievance would 	present 	the 	problem,
a 	committee member 	would be 	assigned to 	investigate 	the 	facts,
perhaps hold a 	private meeting with a supervisor, 	and report
back to the 	grievance 	committee 	as 	a whole. 	If 	settlement 	was
unsuccessful, 	the 	committee would 	decide whether 	to 	initiate
formal 	proceedings. 	If 	the 	committee decided against a 	formal
grievance, 	an 	employee 	could appeal 	this 	decision to the
Association's 	executive board. 	Hackett 	testified that 	a 	common
and 	important 	aspect 	of 	this merit-determination 	process
involved 	checking the 	grievant's 	account. 	Sometimes 	this
required 	verification of 	the 	account 	from information 	in
possession of 	the 	employer. 	In the 	end, 	the 	assembled evidence
was 	weighed 	to 	decide whether 	the Association would 	go 	forward
with a 	formal 	grievance 	on behalf 	of 	the 	employee.
B. 	The Gurney Grievance.
Patricia Gurney had worked as 	a temporary art 	teacher 	in
5

the three 	years preceding the 1983-84 school 	year. 	However, 	in
September 	1983, 	before again being notified of her 	status 	as 	a
temporary employee, 	she was 	classified as 	a substitute 	and was
paid a 	substitute teacher's 	salary for 	the 	first 	three weeks 	of
school. 	Under the 	contract, 	temporary teachers 	are 	included
within the bargaining unit, 	while substitutes 	are 	expressly
excluded. 	Further, 	a letter 	of 	understanding appended to 	and
incorporated 	in the main agreement 	provided that 	it 	was 	a,
. 	. 	. 	goal of the District to maximize
reemployment 	of 	competent 	and 	qualified
1980-81 	and 1981-82 	temporary employees.
(CP.Ex. 	1, p. 	1-3.)
The 	letter 	of 	understanding 	also 	stated:
The 	District 	shall 	make 	a good 	faith effort
to 	classify current 	temporaries, 	when reem-
ployed, 	as 	probationary employees 	whenever
the 	employment 	situation of 	the District
allows 	it to do so. 	(Ibid.)
After 	investigation, 	the Association 	filed a 	grievance on
Gurney's behalf 	in November 	1983, 	alleging violation of 	the
letter 	of 	understanding as 	well 	as 	the 	recognition 	and salary
provisions 	of 	the 	agreement. 	The 	grievance 	asserted that 	there
had 	been 	sufficient 	scheduled 	teaching work 	to 	have 	warranted
hiring Gurney as 	a regular 	classroom 	employee, 	not 	as 	a
substitute. 	The 	grievance observed, 	in support 	of the 	claim,
that 	a 	counselor had been 	assigned to teach 	two art 	classes,
and 	that 	a 	part-time 	teacher 	also 	had 	been hired.
The 	grievance 	submission requested production, 	in writing,
of 	certain 	information:
66

A. 	Please indicate 	if 	art 	classes were
scheduled at 	Downey High 	School 	prior 	to
September 	1, 	1983. 	If 	so what was the pro-
jected 	enrollment.
B. 	Who 	if 	anyone was 	scheduled to teach art
at 	Downey High 	School 	prior 	to September 	1,
1983, 	for the 1983-84 school year.
C. 	On what 	date 	in the 	1983-84 school 	year
were 	art 	classes 	offered at 	Downey 	High
School. 	( C P . Ex. 	2-A.)
In December 	1983 	the District 	denied the 	grievance 	at 	the
first level, 	setting forth an account 	of Gurney's hiring as 	a
substitute 	and her 	switch 	in 	late-September 	to 	temporary
teacher 	status. 	At 	the 	end of 	the written response, 	the school
principal 	stated:
The 	information requested will 	follow.
(CP.Ex. 	2-B.)
The 	response was 	routed 	to Gurney and the 	Association through
the office of 	the District's 	director 	of personnel,
Mel 	Jennings.
Later 	in December 	the 	grievance 	was 	appealed to 	the
superintendent. 	The 	request 	for 	information was 	repeated.3
On January 11, 	1984, 	the superintendent 	denied the
grievance 	(again, 	via Jennings). 	The 	superintendent 	stated
that Gurney knew 	and agreed when she was 	hired 	as 	a
3 The 	three 	areas 	quoted above 	were 	restated. 	A fourth
question was 	added:
Also, 	was 	it 	the 	principal's belief 	that 	this
77

substitute 	that 	her 	future 	status 	depended on 	enrollment
fluctuations. 	The 	superintendent 	explained that 	there was 	a
"discrepancy at 	the beginning of 	the school 	year" 	between the
central 	administration's 	projections 	and 	the high 	school
principal's 	"projections 	as 	to the need 	for Art 	teachers."
(CP.Ex. 	2-D.) 	The 	superintendent 	implied that 	the 	principal
made a higher 	estimate, 	but 	figures were 	not 	provided. 	No
reference 	was 	made 	to the 	information previously requested by
the Association 	and the 	grievant, 	although information had been
promised 	in the 	principal's 	first-level 	response.
staff 	position was 	needed at 	the 	beginning of
the 	year? 	( C P . Ex. 	2 - C )
Arbitration was 	sought 	soon thereafter. 	A decision was
rendered 	in June 	1984. 	(See Resp.Ex. 	1.) 	In denying the
grievance the 	arbitrator 	did 	not 	specify in the 	findings 	of
fact 	the 	enrollment 	projections 	used by 	the 	school 	principal
and the 	central 	administration. 	Apparently relying on
previously undisclosed 	facts, 	without 	reference 	to the
contract's 	evidence bar, 	the 	arbitrator 	concluded that 	the
lower 	central 	staff 	figures 	were 	utilized 	for 	the 	purpose of
hiring a substitute 	at 	the start 	of 	the school 	year, 	a 	decision
that he 	found was 	within the 	realm of 	management 	rights 	under
the 	contract. 	The 	arbitrator 	acknowledged that Gurney
performed work 	consistent 	with her 	prior 	service 	as 	a temporary
8

teacher, 	but 	characterized this 	as 	an equitable 	consideration
that 	was 	irrelevant 	to the 	narrow 	contract 	issue of 	whether
Gurney, 	hired as 	a substitute with an 	uncertain 	future 	tied to
enrollment 	fluctuations, 	was 	covered by 	the 	contract.4
Evidence 	adduced at 	the 	unfair 	practice hearing 	showed 	that
as 	early as 	spring 	1983 	the high 	school 	principal had developed
enrollment 	projections 	based on 	student 	course-preference
balloting. 	This 	information was 	used 	in 	conjunction with an
overall 	allotment 	of 	teaching 	positions 	determined 	by the
central 	administration. 	Taking these 	figures 	together, 	the
principal 	prepared a 	breakdown 	determining 	the 	specific number
of 	courses 	offered, 	and the number 	of 	teachers 	utilized, 	in
different subject 	areas. 	In July 1983 	a master 	class 	schedule
was 	produced 	for 	the high 	school. 	This 	schedule 	listed the 	art
classes 	and teachers projected for fall 1983. 	(See, 	generally,
Reporter's Transcript 	(R.T.), pp. 46-50.)
Gurney was 	not 	called as 	a witness 	by either 	party.
However, 	the District 	did offer 	a transcript 	of Gurney's
tape-recorded 	testimony at 	the 	arbitration hearing to show, 	in
4The 	only passage 	in the 	arbitration decision 	that
related 	to the 	prior 	request 	for 	information 	stated:
This 	information appears 	not 	to have been
furnished in writing by the District, 	it
being 	the 	testimony of 	District 	witnesses
that 	the 	information was 	in possession of
the Grievant 	and the Association. 	(Id.,
p. 	9.)
9

support 	of 	its 	affirmative 	defense, 	that 	she 	already possessed
the 	answers 	to 	the 	questions 	propounded 	in her 	grievance.5
Unfortunately, 	the reliability of 	the transcript 	is 	doubtful
because 	at 	several 	key portions 	of 	the 	testimony, 	the 	tape
recording was 	"inaudible," 	in the words 	of 	the transcriber. 	To
the 	extent 	the 	transcript 	suggests 	that 	Gurney knew 	some
information, 	such as 	the 	art 	classes 	that had been scheduled
and the 	permanent 	art 	teachers 	in prior 	years, 	Gurney was
quoted 	as 	not 	knowing before 	September 	1983 who actually would
be teaching. 	(Resp.Ex. 	4, 	pp. 	37-38.) 	Regardless of the
inference of 	some knowledge, 	there was no evidence 	in the
transcript 	or 	at 	the hearing that Gurney or 	the Association
knew the 	projections 	upon which 	assignments 	and 	classifications
were 	based.6
C. 	The 	Choate Grievance.
In November 	1983 	teacher 	Leonard 	Choate 	requested 	a
5The 	transcript 	was 	submitted after 	the hearing, 	and 	the
Association was 	given 	an opportunity to 	check 	the 	accuracy of
the 	copy offered. 	No objection having been made, 	it has been
marked as Resp.Ex. 	4.
6During 	the hearing, 	the 	District 	introduced 	class 	size
and 	staffing 	figures 	prepared 	at 	the 	end of 	September 	1983 	and
distributed to the Association, 	apart 	from 	the 	Gurney
grievance, 	pursuant 	to a 	contract 	reporting requirement.
Admittedly, 	pre-school projections 	were not 	included 	in the
report. 	The 	employer 	argued that 	this 	report was 	the 	limit 	of
its 	contractual 	responsibility and 	underscored 	its 	management
prerogative 	to make 	staffing 	determinations 	free 	from 	grievance
challenges. 	This 	legal 	argument 	will be 	considered below.
10

three-day leave 	of 	absence 	to 	attend 	a National Aeronautic 	and
Space Administration 	(NASA) 	conference 	coinciding with a 	space
shuttle 	landing in California. 	Under the 	contract, 	there 	are
20 different 	types 	of 	leave 	described. 	According to the
grievance record, 	Choate 	sought 	the 	time off 	either 	as 	"partial
paid 	leave" 	or 	as 	"personal 	necessity" 	leave.7 The 	grievance
record 	indicates 	that 	Choate 	attended the 	conference 	after his
absence 	requests 	were 	denied, 	using accumulated sick 	leave, 	and
that 	the 	District 	stated he would be 	given 	a 	notice 	of
unauthorized 	absence.
Choate's grievance was 	filed 	in January 1984, 	alleging
entitlement 	to the 	leave 	of 	absence 	under 	the 	contract 	and also
7"Personal 	partial-paid 	leave" 	was 	available 	for 	up to
five working days 	a 	year 	for 	"personal 	business 	which 	can be
performed only during school hours." 	(CP.Ex. 	1, 	p. 	5-21.)
Accompanying 	a 	spouse on 	vacation 	and 	recreation were 	listed 	as
examples. 	On this 	type of 	leave 	an 	employee would receive 	a
regular 	salary, 	less the 	cost 	of 	a substitute. 	"Personal
necessity leave" 	was 	limited to six days 	per 	year, 	with 	full
salary to the 	extent 	of 	accumulated 	sick 	leave. 	This 	leave
could be 	used 	for 	designated 	reasons 	"with notification but
without 	advance permission." 	(Id., 	p. 	5-23.) 	One of 	the
reasons was:
[E]xtenuating circumstances 	where 	it 	is
necessary for 	an 	employee 	to be 	absent 	for
reasons 	that 	cannot 	be 	taken 	care of before
or 	after school 	or 	on weekends 	or holidays.
(Limited to not more than 	three 	(3) 	of 	the
six 	(6) 	days.) 	(Ibid.)
-
Cited as 	examples 	of 	this 	category were 	attendance 	at 	profes-
sionally related 	conferences 	or 	classes, 	and 	participation 	in
special events.
11

claiming discrimination. 	The 	grievance 	requested written
information 	from 	the 	employer:
A. 	Please supply all 	requests 	for personal
necessity leave, 	personal 	leave, 	and partial
paid 	leave 	for the 	1982-83 	school 	year 	and
to date 	for 	the 	current 	school year 	1983-84.
B. 	Please provide back-up sheets 	for the
requests 	(any documents 	attached or 	filed
with the requests 	explaining the request).
(CP.Ex. 	3-A.)8
In February 1984 the 	school 	principal 	denied the 	grievance,
relying on the District's 	discretion to 	grant 	leaves 	and
arguing that 	the 	purpose 	of 	the 	conference 	was 	not 	related 	to
Choate's 	teaching duties. 	No mention was made 	in the
principal's 	response of 	the 	prior 	request 	for 	written
information. 	The 	principal's 	denial was 	routed through
Jennings 	for 	distribution 	to Choate 	and 	the Association.
In late-February, 	the Choate grievance was 	submitted at 	the
next 	step, 	again requesting production of 	written 	information
related to leaves 	of absence.
The 	superintendent's denial was 	given 	in March 	1984, 	and
8Although 	the 	grievance 	documents 	do 	not 	specify
"personal 	leave" 	as one for which Choate applied, 	his grievance
stated 	that he was 	entitled to that 	leave 	as 	an 	alternative.
Jennings 	testified that 	in the 	pre-absence 	discussion with
Choate, 	"he was 	trying for 	any kind of 	leave 	that might 	allow
him to go." 	(R.T., 	p. 	53.) 	Perhaps because the documentary
grievance 	record 	did not 	clearly 	show 	a 	request 	for 	"personal
leave," 	the 	PERB complaint 	in this 	case 	involves only the
information 	sought 	about 	the 	"partial 	paid" 	and 	"personal
necessity" 	leaves. 	This 	decision will be 	limited accordingly.
12

was 	distributed by Jennings 	to the 	parties. 	The 	denial 	stated
the 	policies 	that 	were 	applied by the 	District 	to the 	types 	of
leave 	in dispute, 	and offered a 	contract 	interpretation that
varied 	from 	the Association's. 	The 	superintendent 	also
addressed the 	request 	for 	information:
Your 	request 	for 	information 	is 	overly
burdensome, 	violates 	the privacy rights 	of
other 	employees 	and 	is 	not 	relevant 	to your
grievance. 	The 	information you requested
would 	require 	a 	search 	of 	all 	certificated
personnel 	files. 	Since only your leave
request 	is at 	issue, 	such an 	expenditure of
time, 	money and effort 	is both 	irrelevant
and burdensome. 	Furthermore, 	you are not
entitled 	to 	information 	in 	the 	personnel
files 	of 	other 	employees 	since 	the 	privacy
of 	personnel 	files 	is 	protected by statute.
(CP.Ex. 	3-D, 	emphasis 	in original.)
The 	superintendent 	was 	not 	called as 	a witness 	by
respondent 	to elaborate 	upon these objections, 	or 	to describe
the 	information 	and 	analysis 	upon which he 	relied.
Several 	days 	later, 	the Association wrote 	to the
superintendent 	disputing his 	assertion 	that 	providing 	the
information would 	violate 	employee 	privacy rights, 	but 	noted
that,
. . . 	to resolve 	this 	matter 	we 	are willing
to have 	the names 	blocked out 	by 	some 	third
party or 	other 	neutral 	procedure which 	pro-
vides 	the 	information to the Association but
does 	not 	require 	the 	specific 	identity of
the persons 	to be 	disclosed. 	(CP.Ex. 	4.)
There was 	no 	evidence 	showing any response 	to 	the
Association's follow-up proposal. 	Further, 	there was 	no
credible 	evidence 	that 	the 	District 	at 	any time offered any
13

compromise 	to 	ease the 	alleged 	documentary search burden or
privacy 	issue 	described 	by 	the 	superintendent.9
At 	the 	unfair 	practice hearing, 	respondent 	did 	present 	some
evidence 	by Jennings 	attempting 	to 	substantiate 	the 	employer's
burden 	claim. 	He 	testified that 	it 	would 	take 	8 to 10 minutes
to 	search 	each 	file 	for 	the 	requested 	information.10
Jennings 	also 	identified 	listings 	that 	showed 	the number 	of
"partial 	paid" 	and 	"personal 	necessity" 	leaves 	that had been
9 In 	Jennings' 	testimony there was 	a vague 	suggestion that
counsel 	for the 	employer may have made 	a 	compromise 	proposal,
although 	Jennings 	did not 	know 	of 	and was 	unsure whether 	any
specific offer was 	conveyed. 	Jennings 	also did not 	know 	if 	the
possible 	discussion took place 	before or 	after 	the 	unfair
practice charge was filed. 	(See R.T., 	pp. 	71-72, 	78.) 	Neither
Keith Breon nor 	Sharon Keyworth, 	the 	attorneys 	identified by
Jennings, 	were 	called as 	witnesses in 	connection with Jennings'
speculation.
Jennings' 	testimony also 	suggested that 	there were no
District 	proposals 	to have the Association 	pay for 	search 	and
photocopying 	costs 	because 	the 	organization had 	failed 	to pay
past bills for 	similar service. 	However, 	on cross-examination,
Jennings 	admitted 	that 	in the 	past 	there had been 	only one 	such
bill 	presented—for 	one 	page 	of 	copying—and 	that 	the District
settled 	the 	matter 	after 	an 	unfair practice 	charge 	had been
filed 	challenging the action. 	(See R.T., 	pp. 	74-75.)
10 Initially, 	Jennings 	stated that 	each 	search would
require 10 minutes. 	On 	cross-examination, 	after Jennings was
asked to describe 	the 	proximity of 	the 	clerical 	staff 	to 	the
files 	and 	photocopying equipment, 	the way in which the 	files
were maintained 	(that 	is, 	recent 	information on top), 	and the
amount 	of 	time 	it would take to 	photocopy one or 	a 	few pages 	of
paper, 	he 	begrudgingly modified his 	estimate 	and 	stated with a
sarcastic expression that 	it 	might 	take only 	8 minutes 	to
search and 	copy relevant 	documents 	in a 	file. 	Compare R.T.,
pp. 	56, 	57-63.)
14

granted.11
Beyond the 	time 	estimate 	and lists, 	the District 	offered no
evidence 	at 	the hearing related to the 	costs 	of 	staff 	time, 	nor
of 	other 	staff 	duties 	and priorities, 	nor 	of 	its 	affirmative
defense that 	the Association's 	request was 	"a means 	of
harassment."
A 	final 	aspect 	of 	the 	testimony relevant 	to 	the 	burden
issue 	involved Jennings' 	reluctant 	and 	piecemeal 	admission,
during cross-examination, 	that 	a year 	or 	two ago, 	a prior 	case
regarding 	an 	employee 	named Karam involved a 	disclosure 	request
similar 	to the 	request 	in the Choate 	case. 	Jennings 	conceded
that, 	at 	first, 	the District had declined to provide the leave
of 	absence 	information sought by the Association, 	but 	later,
after 	an unfair 	practice 	charge was 	filed, 	the 	dispute was
settled and the records were checked. 	(Compare R.T., 	pp. 	63-64,
69, 	76-77.)
11Jennings 	identified 	lists 	prepared as 	part 	of 	the
school board's 	twice-monthly consent 	calendar, 	during which
administratively-approved 	leaves 	were 	authorized by 	the 	board
of 	education. 	Jennings 	stated that 	few leave 	requests were
ever denied. 	(R.T., 	p. 	58.) 	The photocopied lists were not
prepared by Jennings 	directly or 	under his 	supervision, 	but,
based on other 	representations, 	their 	accuracy seems 	likely in
that 	they were 	probably compiled 	by the Association 	as 	part 	of
an 	attempt 	to settle the 	unfair practice 	case. 	When 	the 	number
of 	leaves 	granted 	during the 	relevant 	time 	are 	computed 	(i.e.,
September 	1982 to December 	1983), 	the total 	is 	205. 	The 	lists
did 	not 	contain 	a 	breakdown 	showing 	personal 	necessity leaves
for 	professional 	purposes 	or 	for 	special 	event 	participation,
perhaps 	the two most 	probative 	areas 	to be 	examined 	in
connection with the 	grievance.
15

Regarding the District's 	privacy claim, 	the District
offered no 	evidence 	beyond 	the 	superintendent's 	assertion 	in
his 	letter that 	the 	"privacy of 	personnel 	files 	is 	protected 	by
statute." 	Hence, 	there was 	no 	evidence 	presented of 	any school
board policy, 	either written or 	in practice, 	regarding
confidentiality of 	leave of 	absence materials. 	Indeed, 	the
form submitted 	by Choate, 	identified 	as 	the 	standard request
document, 	bears 	no 	indication of 	expected 	confidential
treatment. 	Instead, 	a number 	of 	officials 	are noted on the
document 	as 	within the 	possible 	realm of handling or 	review,
including building principals, 	supervisors, 	personnel office
staff, 	and the 	superintendent's 	executive 	council. 	Jennings
also 	testified that 	the 	consent 	calendar was 	a 	public 	agenda
item, 	and that 	a leave 	of 	absence 	approved by an 	administrator
could be 	called off 	the 	consent 	calendar 	for 	discussion. 	(R.T.,
pp. 	62-63.) 	On final 	redirect 	examination, 	Jennings answered
leading 	questions 	by adding that 	the 	school board 	"should" 	go
into 	executive 	session 	for 	confidential 	discussion of 	such a
request. 	(R.T., p. 	79.) 	However, 	there was no evidence that
this 	was 	the 	case with each request 	called 	for 	discussion, 	much
less 	that 	it 	was 	required by any school 	policy or 	applicable
law.12
12It is apparent that some types of contract leave
requests, 	on their face, 	might more than others 	entail personal
12
16
12

matters 	warranting private deliberation. 	For 	example, 	among
the 	various leaves mentioned 	in the 	contract 	are those 	for
"long term 	illness," 	"bereavement," 	"hospital 	confinement 	of
members 	of 	immediate household," 	"pregnancy disability," 	and
"child care." 	In comparison, 	other 	leaves 	suggest less 	of 	a
concern for privacy: 	for example, 	"legislative," 	"association,"
"peace 	corps," "jury duty," 	"military," 	and "organization"
leaves, 	to mention a few.
Finally, 	observations 	are warranted regarding Jennings'
credibility, 	since his 	testimony was 	almost 	exclusively devoted
to the 	Choate 	case 	and he 	provided 	some 	factual 	information to
support 	the 	District's 	justification defense.
Jennings' 	demeanor 	as 	a witness 	undermined 	confidence 	in
his 	testimony. 	Jennings 	was 	defensive 	and easily angered by
cross-examination that 	probed his 	account 	or 	recollection of
several 	subjects, 	and his answers 	were often 	evasive, 	reluctant
and 	contradictory. 	These 	problems 	were 	especially evident 	when
Jennings 	was 	asked 	questions 	about 	documentary search-time
estimates, 	alleged 	copying bills 	sent 	to the Association,
school board 	calendar 	procedures, 	and the 	Karam case. 	The
content 	of his 	testimony related to these matters 	has 	been
described 	above.
Compounding these testimonial 	weaknesses, 	Jennings
demonstrated extreme personal 	hostility toward 	Burt, 	who 	served
as 	the 	Association's 	trial 	counsel 	in addition to his
day-to-day function 	as 	the Association's 	executive 	director.
For 	example, 	instead of 	responding directly and 	succinctly to
17

Burt's 	questions 	about 	whether 	he 	recalled the Karam 	case,
Jennings 	initially testified:
I 	remember 	you asking a lot 	of 	ridiculous,
making a 	lot 	of 	ridiculous 	requests 	for
information that, 	whether 	you did on that
one or 	not 	I 	don't 	really remember. 	(R.T.,
p. 	64.)
During examination by 	the 	administrative 	law 	judge,
Jennings 	avoided a 	direct 	response 	and 	attacked 	Burt 	when
answering a 	question 	about 	whether 	he 	remembered the 	initial
information request 	in the Choate 	case:
. 	. 	that 	is the 	standard practice of Ken
Burt. 	He will 	ask 	for everything including
the 	kitchen 	stove on all 	grievances. 	If you
notice each of his grievances 	. 	. 	. 	every one
of his grievances 	are 	standard, 	and he 	put 	in
a 	lot 	of 	extraneous 	information 	as 	a 	standard
practice, 	and you can 	look at 	100 of 	them and
you will 	see 	100 requests 	for 	everything.
(R.T., 	p. 	68.)
Jennings 	admitted 	that 	neither 	he 	nor 	the 	school 	principal
raised 	an 	irrelevance objection 	in their 	initial 	communication
denying the Choate grievance 	at 	the 	first step. 	Indeed, 	there
was 	no response 	at 	all 	to the Association's 	request. 	And
despite 	the 	harassed and bitter 	tone 	accompanying Jennings'
quoted remarks, 	there was 	no evidence offered that he or the
District had ever 	challenged Burt 	for 	alleged abuse of 	the
grievance 	process 	by "including the 	kitchen 	stove on 	all
grievances," 	or 	for 	Burt's 	"standard practice" 	of 	making 	"100
requests for 	everything." 	In short, 	at 	the unfair 	practice
hearing Jennings 	vented his personal hostility, 	but 	it 	was
animosity without 	any apparent 	substance.
18

In 	addition to the shortcomings 	previously described,
Jennings' 	testimony suffered 	from his 	failure 	to 	offer
important 	information or 	explanations. 	This 	deficiency was
accentuated because he was 	the 	District's 	principal 	witness 	and
the superintendent was 	not 	called. 	Thus, 	there was 	no
testimony explaining the 	late 	second-step assertion of 	burden
and privacy objections 	in the Choate 	case, 	or, 	the absence of
any stated objection 	in the 	Gurney proceeding 	(at 	least 	until
the 	arbitration 	and unfair practice proceedings). 	Since
Jennings, 	as personnel 	director, 	monitored grievance 	processing
for 	the 	employer 	and distributed 	all 	relevant 	District
responses 	prepared by 	site 	administrators 	and 	the
superintendent, 	the 	failure to 	advance 	any explanations 	for the
employer's 	tardiness 	supports 	an 	inference 	that 	justifications
were 	absent 	and 	perhaps 	were 	propounded 	after-the-fact 	to
obstruct 	the 	process.
Similarly, 	when Jennings 	offered 	facts 	to 	justify the
burden 	and expense basis 	for 	denying the Choate request,
Jennings 	completely 	failed 	to provide 	any evidence 	bearing upon
the 	crucial 	issues 	of 	staff 	cost 	and other 	staff 	duties 	and
priorities. 	When 	this 	omission 	is 	coupled with the 	documentary
search-time 	estimates, 	shown by cross-examination to be 	vague
guesswork at 	best 	and 	greatly inflated at 	worst, 	significant
doubt 	is 	raised about 	the 	substantiality of 	the District's
burden 	assertion.
19

A comparable 	criticism 	can be made 	about Jennings' 	failure
to offer 	evidence 	and explanations 	related to the 	District's
privacy assertion. 	In fact, 	the sole mention of a 	closed
session 	confidentiality policy that 	the 	school 	board 	"should"
follow, 	in Jennings' 	account, 	was in response to leading
questions 	on his 	final 	redirect 	examination. 	Other 	than this,
the record is barren of 	any evidence of practice, 	board
regulation or 	statutory authority bearing upon 	the 	employer's
privacy claim. 	This is 	so despite the 	fact that Jennings, 	as
personnel 	director, 	presumably was 	in a position to know 	and
offer 	evidence 	of District 	policy and 	practice relevant 	to the
issue.
Overall, 	the multiple problems with Jennings' 	testimony,
when taken together, 	suggest 	that his 	account 	and
justifications 	were not 	trustworthy. 	The 	claims he 	advanced on
behalf 	of 	the District 	should be 	discounted 	and 	the opposite 	of
his 	version 	should 	be 	believed.13
13	1 The	The 	Supreme Court has 	stated:
For 	the 	demeanor 	of 	a witness 	" . . . 	may
satisfy the tribunal, 	not 	only that 	the
witness' testimony is 	not 	true, 	but 	that the
truth is 	the opposite of his 	story; 	for 	the
denial of one, 	who has 	a motive to deny, 	may
be 	uttered with such hesitation, 	discomfort,
arrogance or 	defiance, 	as to give assurance
that he 	is fabricating, 	and that, 	if he 	is,
there 	is 	no alternative but 	to 	assume the
truth of 	what he 	denies." 	(NLRB v. Walton
20
3

CONCLUSIONS 	OF 	LAW
As a general 	rule, 	the 	PERB requires 	an 	employer 	to
disclose 	information relevant 	to the 	representation of
employees 	in negotiations 	and 	in monitoring contract
compliance. 	Stockton Unified School District 	(11/3/80) 	PERB
Decision No. 	143; 	Mt. 	San Antonio Community College District
(6/30/82) 	PERB Decision No. 	224; 	Azusa Unified School District
(12/30/83) 	PERB Decision No. 	374. 	This policy is designed to
facilitate 	effective 	bargaining 	and 	dispute 	resolution.
Failure to provide 	relevant 	information 	is 	deemed a 	refusal 	to
bargain 	in 	violation 	of 	section 	3543.5(c).14
The 	first 	legal 	issue to be 	resolved 	is 	whether 	the
requested 	information was 	relevant 	to 	the 	pending grievances.
This 	determination is 	not 	a 	decision on the merits 	of 	the
Mfg. Co. 	(1962) 	369 U.S. 404, 	408, quoting
Dyer v. 	MacDougall 	(2nd Cir. 	1952)
201 	F.2d 265, 	269.)
14	14P
21
PERB	ERB has 	expressly relied 	upon precedent 	under 	the
National Labor Relations Act 	(NLRA) 	in 	arriving at 	this
interpretation of 	section 3543.5(c). 	See Stockton Unified
School District, 	supra, 	at pp. 	12-19. 	Section 3543.5(c) of the
EERA is 	similar 	to section 8(a)(5) 	of 	the NLRA, 	which also
prohibits 	an 	employer's 	refusal 	to bargain in good faith. 	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 	comparable 	duties 	of 	parties 	under 	that
legislation. 	(See 29 U.S.C, 	secs. 	158(a)(5) 	and 158(d).) 	The
construction of 	similar 	or 	identical 	provisions 	of 	the NLRA may
be 	used to 	aid interpretation of 	the EERA. 	San Diego
Teachers Assn. v. 	Superior Court 	(1979) 	24 Cal.3d 1, 	12-13;
Fire Fighters Union v. 	City of Vallejo 	(1974) 	12 	Cal.3d 	608,
615.

contractual 	claim 	stated in the 	grievance. 	NLRB v. 	Acme
Industrial Co. 	(1967) 	385 U.S. 	432, 	437 [64 LRRM 2069].
Instead, 	the standard of 	relevance 	is more liberal 	and 	is 	akin
to that 	used 	in a 	civil 	discovery examination where 	the 	precise
dispute has 	not 	yet 	been framed and 	prepared 	for trial. 	Id.,
385 U.S. 	at 437, 	n. 	6. 	Under this approach, 	an employer must
provide the requested 	information 	if 	it 	likely would be
relevant 	and 	useful 	to the 	union's 	grievance 	determination 	and
to fulfillment 	of 	its 	statutory representation duties. 	Id.,
385 U.S. 	at 437-438. 	As the court observed,
[a]rbitration 	can 	function 	properly only 	if
the 	grievance 	procedures 	leading to 	it 	can
sift out 	unmeritorious 	claims. 	(Ibid.)
Applying this 	standard, 	the 	information sought 	by the
Association for 	the Gurney and Choate 	grievances 	was 	plainly
relevant. 	The 	Gurney request 	concerned the 	date 	and basis 	of
staff 	classifications 	and 	courses 	offered. 	Such 	information
was 	crucial 	to resolution of 	the 	ultimate 	dispute over 	whether
Gurney should have 	been hired 	as 	a temporary teacher 	(perhaps
with probationary status) 	instead of being hired as 	a
substitute 	for the 	first 	three weeks 	of 	the school 	year.
Indeed, 	the District has 	never 	disputed the 	relevance of 	the
Gurney 	request.15
15	15Given	Given 	the 	outcome of 	the 	Gurney arbitration hearing,
denying Gurney relief because she was hired as 	a substitute,
the 	District has 	now 	argued 	in its 	brief 	that 	she was 	not 	part
22

of 	the 	bargaining unit 	and was barred 	from 	using the 	grievance
machinery, 	even 	if 	she later was 	rehired as 	a temporary
employee. 	The objection is 	rejected. 	First, 	at the time the
grievance was 	pursued the 	issue 	of Gurney's 	proper 	status 	when
hired 	in 1983 was 	the 	central 	issue. 	Her 	contract 	claim was
certainly arguable. 	Even the 	arbitrator 	found 	that Gurney did
the 	actual 	work of 	a temporary teacher. 	Second, 	the
Association 	could have 	filed a 	grievance, 	independent 	of
Gurney, 	to ensure 	the 	integrity of 	the 	contract's 	temporary
teacher 	reemployment provision. 	Under this approach, 	an
exclusive 	representative 	would be 	entitled to 	information
regarding 	non-unit 	employees 	when 	such 	information would 	be
relevant 	to policing the 	administration of 	an 	agreement 	for
unit 	employees. 	(San Diego Newspaper Guild v. 	NLRB 	(9th
Cir. 	1977) 	548 F.2d 863 [94 LRRM 2923].) 	This 	doctrine applies
to 	cases 	alleging 	improper 	exclusion of 	employees 	or 	removal 	of
work from the bargaining unit. 	(See, 	e.g., 	NLRB v. 	Goodyear
Aerospace Corp. 	(6th Cir. 1968) 	388 F. 2d 673 [67 LRRM 2447];
Curtiss-Wright v. 	NLRB 	(3rd Cir. 	1965) 	347 F.2d 	61
[59 	LRRM 	2433].)
In the Choate 	case the District 	did assert 	a relevance
objection, 	admittedly in a belated 	fashion at 	the
superintendent's 	second-step response. 	However, 	his 	assertion
missed the 	point 	of 	the 	grievance 	when he 	claimed that 	the
records 	of 	other 	employees bore no relation to Choate's
personal 	entitlement 	to a leave. 	In order 	to sustain a claim
of 	contract 	misapplication 	and of 	a 	discriminatory leave 	denial
and threatened reprimand, 	as 	was 	alleged 	in the 	Choate
grievance, 	there may be no better 	evidence than the records 	of
other 	employees 	in 	comparable 	situations.16
16Accord 	C & P Telephone Co. 	v. 	NLRB 	(2nd Cir. 	1982)
687 	F.2d 	633 [111 LRRM 2165, 	2168] 	(discipline of 	other
employees 	for 	poor 	attitude 	relevant 	to alleged discrimination);
Sweeney & Co. 	(1981) 	258 NLRB 721 	[108 LRRM 1172] 	(vacation
schedules 	of 	other 	employees 	related to 	discipline 	for
excessive absences).
23

However, 	relevance aside, 	the District has offered
additional 	justifications 	for 	its 	refusal 	to provide 	the
information.
In the Gurney case, 	the District has 	argued that 	the
grievant 	and/or 	the Association 	already 	possessed 	answers 	to
the 	questions 	propounded. 	In this 	regard, 	the employer 	relies
on Gurney's 	answers 	at 	the 	arbitration hearing, 	when it 	seems
the objection was 	first 	raised. 	However, 	not 	only does 	the
transcript 	suffer 	from 	uncertainty because 	of 	inaudible
portions, 	but 	it 	offers 	no 	admission showing Gurney's knowledge
of 	the 	vital 	projection 	figures 	utilized for the 	principal's
employment 	decisions.
In any event, 	the Association was 	entitled to secure the
information for the reasons 	presented 	by Hackett, 	the 	grievance
committee 	chair; 	namely, 	a desire to develop a 	record to verify
the Gurney account 	and to make 	an 	independent 	judgment 	about
whether 	the 	case 	should be 	pursued.17 Since 	the 	committee's
17	17The	The Association's 	verification 	and 	merit-determination
objective was 	in 	accord 	with 	long-established 	precedent 	related
to information disclosure requests. 	See, 	e.g., 	NLRB v. 	Acme
Industrial Co., 	supra, 	385 U.S. at 437-438; J.I. Case Co. v.
NLRB 	(7th Cir. 	1958) 	253 F.2d 149 [41 LRRM 2679, 	2683]; 	C & P
Telephone Co. v. 	NLRB, 	supra; P. 	R. Mallory & Company, 	Inc. v.
NLRB 	(7th Cir. 	1960) 	411 F. 2d 948 [71 LRRM 2412, 	2417]. 	As 	one
court 	stated:
With the 	information thus 	supplied, 	the 	union
can make 	an intelligent 	appraisal 	of 	the
merits 	of 	the members' 	complaint 	and an 	in-
formed 	decision on whether 	to 	process 	the
24

adverse 	recommendation 	could 	be 	appealed to the Association's
executive board, 	and since 	the organization 	is 	subject 	to a
duty of 	fair 	representation 	in making 	grievance 	processing
determinations 	(Castro Valley Unified 	School 	District
(10/25/78) 	PERB Decision No. 	149), 	the Association's rationale
was both reasonable and responsible. 	Moreover, 	would not 	an
employer 	be the 	first 	to 	complain 	if 	a 	union 	ignored the
equitable 	solution goal 	of 	the 	grievance 	procedure by 	filing a
grievance without 	first 	checking the 	facts, 	especially those
that 	would be easy to produce 	and 	verify, 	as 	in this 	situation?
grievance. 	In the 	internal 	steps of 	the
agreed procedures, 	the 	union 	can negotiate
on 	a 	foundation of 	fact 	which may dispense
with the need for 	arbitration or 	reveal 	that
arbitration is 	unwarranted. 	The 	ultimate
goal 	of industrial peace, 	upon terms 	volun-
tarily accepted by both sides, 	may thus 	be
achieved. 	(Ibid.)
At 	the hearing and 	in 	its brief, 	the District 	also
contended 	that 	the 	Gurney request 	was 	properly refused because
it 	questioned the District's management 	right 	to make 	staffing
decisions. 	But this objection, 	again belatedly made,
mischaracterizes 	the Association's 	theory of 	the 	grievance.
The 	organization did not 	challenge 	the 	District's 	right 	to
determine 	either who was 	qualified for 	a 	job or 	programs 	to be
offered to students. 	Rather, 	the Association contested the
manner 	and method 	of 	the 	non-contract 	classification that 	was
25

assigned to Gurney and the 	resulting 	loss 	of 	contract 	benefits,
including possible probationary status 	as 	a regular 	employee.
Assembling the facts 	relevant 	to this 	grievance would 	not
infringe 	at 	all 	on hiring determinations 	or 	on the 	programs
that the employer, 	in good faith, 	decided to make available for
students.18
The 	objections 	advanced by 	the 	District 	on the 	Choate
case—burden 	and 	privacy—also 	fail 	as 	adequate 	justifications.
First, 	the 	evidence 	related 	to burden was 	insufficient 	in terms
18As 	one 	leading labor 	law 	commentator 	has 	observed,
[t]he 	Board and the 	courts have 	also
uniformly 	required 	disclosure 	of 	. . .
information on 	employee 	job 	classifications
and how 	they are 	determined, 	information
about 	employee status 	and job changes, 	time-
study material, 	and 	information used 	in
setting wage rates 	or incentives. 	(Morris,
The Developing Labor Law 	(2nd ed. 	1983),
p. 	625 (citations omitted) .
For 	example, 	in P.R. Mallory & Company, 	Inc. v. 	NLRB, 	supra,
the 	court 	reasoned 	that 	disclosure 	of 	employer 	figures
regarding the 	"availability of 	incentive work" 	was 	important 	in
determining the 	proper 	compensation rate 	under 	the 	contract
(71 	LRRM at 	2413), 	just as 	in this case the 	inquiry about known
availability of 	art 	coursework 	and 	related 	enrollment
projections 	was 	related to Gurney's 	claim for 	a higher
temporary teacher 	salary. 	And 	in Local Electronic 	Systems
(1980) 	253 NLRB 851 	[106 LRRM 1061], 	the NLRB ordered
production 	figures 	disclosed 	in 	connection with a 	union
grievance 	claim 	that 	non-contract 	research 	work had 	given way
to 	production 	activity 	for 	employees 	covered 	by the 	bargaining
agreement. 	The 	same argument 	could have 	been made 	on Gurney's
behalf 	without 	interfering with a management 	right 	to 	select
the work that 	gets 	done.
26

of 	precise 	cost 	and 	time 	factors 	to sustain the District's
refusal. 	To the 	extent 	there was 	limited evidence 	that 	was
offered by Jennings, 	it must 	be 	viewed as 	overstating the
impact 	of 	the 	request 	in light 	of his bias 	and his
untrustworthy demeanor 	and responses. 	And the 	failure of 	the
employer 	to 	seek any production or 	cost 	compromise 	casts
further 	doubt 	on 	its objection.
The 	only 	legal 	authority cited as 	support 	on the 	burden
issue 	in the 	employer's 	brief 	points 	entirely in the opposite
direction. 	See NLRB v. 	Borden, 	Inc. 	(1st Cir. 	1979)
600 	F.2d 	313 	[101 LRRM 2727]. 	In Borden a 	union's 	request 	for
substantial 	company-wide 	personnel 	and 	insurance 	cost 	figures
was 	enforced:
. 	. 	. 	the Board held that Borden did not meet
its 	obligation to obtain the 	requested 	infor-
mation, 	to investigate 	alternative methods
for obtaining the 	information, 	or to explain
or 	document 	the 	reason for 	its 	unavail-
ability. 	(Id., 	101 LRRM 	at 	2729.)
The 	federal 	court 	expressly rejected the 	employer's,
. 	. 	. 	attempt to slough off its
responsibility to bargain 	in 	good 	faith by
claiming that 	it 	did 	in the main provide the
Union with some information. 	. 	. 	. 	(Ibid.)
Noting 	that 	the 	union 	could 	have 	polled 	employees,
. 	. 	. 	recourse to the Company was 	simpler,
more efficient, 	and seemingly not 	overly
burdensome to the Company. 	(Id., 	101 LRRM
at 	2730.)
The 	court 	concluded that,
27

. 	. 	. 	a company may not play dog-in-the-
manger 	just 	to put 	the Union through 	the
hoops. 	(Ibid.)19
The 	District's privacy or 	confidentiality objection, 	raised
by the 	superintendent, 	also suffers 	from 	the 	absence of 	legal
or 	evidentiary support. 	Not 	only did the 	District 	fail 	to
raise this 	as 	an affirmative 	defense, 	but 	the employer has 	not
cited a 	single 	statute or 	case 	authority to 	support 	its 	claim.
Further, 	the testimony about 	confidentiality policy or 	practice
was weak, bordering on non-existent. 	Thus, 	there was no
19A recent federal case involving an unlawful failure to
provide 	health 	and 	safety information 	contains 	an 	analysis 	that
could apply equally to 	the 	present 	proceeding:
In the instant case 	. 	. 	. 	Respondent offers
no 	substantiation to 	its 	claim that 	the
request 	would 	be 	prohibitively expensive 	in
time, 	labor 	and resources 	to fulfill.
Respondent merely points 	to the 	breadth of
the 	language 	of 	the Union's 	written 	request
and, 	later, 	attempts to rely on the estimates
of 	DOE 	regarding an 	entirely different 	type
of 	information request 	in support 	of 	its
position. 	Further, 	the genuineness of
Respondent's 	claim is 	undermined 	signifi-
cantly by the 	absence 	of 	any effort 	by
Respondent 	to 	seek 	clarification 	from 	the
Union 	in order 	to 	narrow 	the 	issues 	included
within the request. 	Instead, 	Respondent
ignored the Union's 	inquiries 	and only
belatedly attempted 	to 	fashion 	an 	excuse 	for
its 	conduct. 	Accordingly, 	we reject
Respondent's 	contention that 	the 	burden of
compliance 	absolves 	it 	of 	responsibility.
(Goodyear Atomic Corp. 	v. 	NLRB 	(6th Cir.
1984) 	F.2d 	[ H 6 	LRRM 	3023, 	3024],
quoting 	266 NLRB No. 	160 	[113 LRRM 1057].)
19
28
19

showing that 	documentary material 	regarding 	partial-paid 	and
personal 	necessity leaves 	would 	fall 	within statutory privacy
protections, 	even 	if the submitted documents were later
included within personnel 	files 	that 	otherwise 	contain 	some
protected information. 	In fact, 	the evidence showed that
neither 	the 	contract 	language 	defining the 	two leaves 	of
absence, 	nor the 	document 	used for submitting requests, 	raised,
on their face, 	privacy promises 	or 	protections.
Even 	if 	inclusion within 	personnel 	files 	might 	support 	the
District's 	assertion of 	a 	confidentiality interest 	that
precluded direct Association 	access, 	this would not 	by 	itself
justify an 	outright 	refusal 	to 	segregate 	and produce 	relevant
documents. 	Instead, 	if 	the District was 	concerned about 	the
privacy and 	identity of 	other 	employees, 	the 	District 	should
have 	proposed a 	counter-offer 	to 	separate 	the 	records 	or 	delete
the 	names, 	or 	advanced 	some 	other 	appropriate 	compromise.20
Moreover, 	reasonable 	doubt 	about 	the 	sincerity of 	the
District's 	privacy concern 	is 	underscored because of 	the
20See, 	e.g., 	Emeryville Research Center 	(Shell 	Oil 	Co.)
v. 	NLRB 	(9th Cir. 	1971) 	441 	F.2d 	880 [77 LRRM 	2043] 	(no
violation because of 	employer 	willingness 	to 	explore
alternative forms of disclosure); Detroit Edison Co. v. 	NLRB
(1979) 	440 U.S. 	301, 	318, 	fn. 	14 [100 LRRM 2729] 	(employer's
compromise 	disclosure 	proposals 	acceptable to 	preserve
confidentiality); Goodyear Atomic Corp. v. NLRB, 	supra,
116 LRRM at 3024; Morris, 	Developing Labor Law, 	supra, 	at
pp. 614-617.
29

employer's 	failure 	to seek a 	disclosure 	compromise 	with the
Association once 	the 	organization 	conveyed 	its 	willingness 	to
accept 	a limitation, 	an indication expressed within 	days 	of 	the
District 	first presenting 	its 	privacy objection two months 	and
two 	grievance 	steps 	after 	the 	request 	had 	been 	made.21
In the 	end, 	the 	absolute refusal 	by the District 	to produce
the 	relevant 	information 	for 	the Gurney and Choate 	grievances,
and the 	failure to propose 	any alternative 	form 	of 	discovery,
was 	not 	justified by any employer 	showing 	that 	outweighed 	the
right 	of 	the 	grievants 	and the Association to secure the
2lThis 	conclusion is 	strengthened, 	not 	altered, 	by
Jennings' 	testimonial 	allusion to a possible 	compromise offer
made by employer 	counsel, 	perhaps 	after 	this 	unfair practice
charge was 	filed. 	Despite Jennings' 	uncertainty and the
importance 	of 	the 	issue 	for 	the District's defense, 	no
competent 	evidence was 	offered 	by the 	employer to 	explain 	or
substantiate the 	vague 	suggestion in Jennings' 	testimony.
The District's 	failure to treat 	the Association's
information requests promptly, 	and 	its 	silence 	as 	to possible
compromise, 	is 	all 	the more surprising because of a prior
unfair 	practice 	finding against 	this 	same 	employer 	for 	refusing
to provide 	grievance-related information. 	Administrative
notice may be taken of PERB Case No. 	S-CE-498, 	involving the
same 	parties 	and 	counsel, 	decided 	by an administrative 	law
judge on May 3, 	1983. 	While 	exceptions 	to the 	Board have been
filed 	by the 	employer 	and 	the 	pending 	decision may not 	be 	cited
as precedent, 	plain sense suggests 	that 	the District was 	aware,
when the Gurney and Choate 	cases 	arose 	less 	than one 	year
later, 	of both the 	general 	legal 	principles 	governing
information 	disclosure 	and the Association's 	readiness 	to
pursue 	its 	statutory rights. 	Hence, 	with this background, 	the
District's 	uncooperative 	and 	recalcitrant 	posture 	was
remarkable.
30

information requested. 	The District's 	refusal 	to provide the
relevant 	information 	for 	grievance 	processing 	tended 	to 	and
actually 	interfered 	with the Association's 	ability to
effectively carry out 	its 	representational 	duties. 	For
example, 	the Gurney case went 	all 	the way to 	arbitration
without 	disclosure of 	the 	enrollment 	projections 	and 	student
preference 	tallies 	used 	for 	the 	ultimate 	staffing
classifications. 	Further, 	the 	arbitrator 	apparently was 	left
with a record, 	contrary to 	contract provisions, 	that 	did not
include 	the 	best 	documentary evidence 	sought 	by 	the Association
and 	that 	was 	limited to 	previously undisclosed 	testimonial
recollection of 	the 	different 	figures 	used by 	local 	and 	central
administration management 	officials. 	Under these
circumstances, 	the Association 	could not 	fairly evaluate 	the
merits 	of 	the Gurney claim, 	nor 	present 	a 	full 	case before the
arbitrator.
The 	Choate 	case 	also suffered as 	a result 	of 	the 	District's
refusal 	since 	potentially 	probative 	evidence 	related 	to the
disparate treatment 	theory of 	the 	case was 	withheld. 	While no
arbitration had taken 	place 	at 	the 	time 	of 	the 	unfair 	practice
hearing, 	presumably the Association 	again would encounter
difficulties 	in 	assessing the merits 	of 	its 	case 	and 	in
preparing 	for 	an 	arbitration hearing.
In each instance, 	therefore, 	the District's 	conduct
violated section 3543.5(c) 	of 	the Act, 	and concurrently
31

violated sections 	3543.5(a) 	and 3543.5(b), 	by interfering with
an 	employee's 	right 	to have 	representation on 	a 	contract
grievance, 	by interfering with the Association's 	right 	to
represent 	employees, 	and by 	interfering with administration 	and
enforcement 	of 	a bargained-for 	collective 	agreement.
REMEDY
Section 3 541.5(c) 	of the Act 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
this 	chapter.
A 	cease-and-desist 	order 	is 	the 	customary and 	appropriate
remedy 	for 	the 	failure 	to 	provide 	relevant 	information 	for
representation of 	unit 	employees. 	Stockton Unified School
District, 	supra; 	Azusa Unified School District, 	supra.
Additionally, 	certain affirmative 	action by 	the 	employer 	is
warranted by the 	facts 	of 	this 	case. 	Although the 	evidence
suggests 	that 	the 	outcome of 	the 	employer's 	earlier 	personnel
decisions might 	not 	change, 	nevertheless, 	upon request by the
Association, 	the 	District 	should produce 	the 	information and
documents 	previously sought 	by the Association.
Mt. 	San Antonio Community College District, 	supra. 	Accord
Goodyear Atomic Corp. v. 	NLRB, 	supra, 	116 LRRM 3023; Chesapeake
and Potomac Telephone Co. 	(1981) 	259 NLRB 	225 	[109 LRRM 1019]
enf. 	C & P Telephone Co. v. 	NLRB, 	supra; La Guardia Hospital
32

(1982) 	260 NLRB 1455 [109 LRRM 1371]. 	If a further request is
made, 	the District 	should permit 	the 	grievances 	to be
reopened. 	Cf. 	Lemoore Union High School District 	(12/28/82)
PERB Decision No. 	271 	(ordering that 	job selection process be
reopened). 	This 	affirmative action, 	if requested by the
Association or by the employees, 	in the event 	the Association
declines 	to proceed with either 	or both 	cases, 	will 	allow full
exercise of 	the 	grievance-processing machinery and 	is 	the 	only
way to 	effectively restore 	statutory 	rights 	that 	have 	been
abridged.
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 	District
indicating that 	it 	will 	comply with the terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in size. 	Posting such a notice
will 	provide 	employees 	with notice that 	the District has 	acted
in an 	unlawful 	manner 	and 	is being required to 	cease 	and 	desist
from this 	activity and to take 	certain 	affirmative 	action, 	if
requested by the 	charging party. 	It 	effectuates 	the 	purposes
of 	the EERA that 	employees 	be 	informed of 	the 	resolution of 	the
controversy and Will 	announce 	the 	District's 	readiness 	to
comply with the 	ordered remedy. 	See Placerville Union School
District 	(9/18/78) 	PERB Decision No. 	69; 	Pandol 	and Sons v.
Agricultural Labor Relations Bd. 	(1979) 	98 Cal.App.3d 	580, 	587;
NLRB v. 	Express Publishing Co. 	(1941) 	312 U.S. 	426 [8 LRRM 415].
33

Beyond the relief 	just 	described, 	the Association has
requested other 	remedies 	because 	the 	District 	is 	"an 	obdurate
employer" 	and a "repeat offender." 	( C P . 	Brief, 	p. 	13.) 	Thus,
the Association seeks 	reimbursement 	of 	the 	costs 	of 	litigation,
including the 	expenses 	of 	the 	arbitration 	proceeding,
reasonable attorney fees, 	and transcript 	and other 	costs. 	In
support 	of 	this 	request, 	the Association cites 	several 	other
unfair 	practice 	cases 	involving the 	District.
The Association's 	request 	can 	be 	sympathetically viewed,
although not because the other 	cases, 	largely on appeal 	at 	this
time, 	demonstrate 	a lawless 	employer nature. 	Rather, 	sympathy
is prompted because the 	District's 	conduct 	was 	egregious 	in its
disregard 	for 	the 	responsive 	bilateral 	grievance 	procedure,
particularly by 	its 	failure 	to promptly respond to requests,
even with an objection, 	and 	by its 	patent 	unwillingness 	to
compromise. 	Further, 	because the District's effort 	to advance
justifications 	was marked by untimely assertions, 	little 	or 	no
evidence 	and an 	absence of 	legal 	authority, 	it 	can be 	argued
that 	the 	employer 	tried to make 	a mockery of 	the 	contract
grievance machinery as 	well 	as 	PERB's 	unfair practice
procedures. 	Simply stated, 	minor 	disputes 	such as 	this 	should
not 	consume 	so much 	time 	and taxpayer 	money, 	nor 	be 	used as 	a
vehicle to display an 	employer's 	ill 	will.
But 	despite 	the 	sympathetic ear 	for 	the Association's
special 	requests, 	the Board has 	concluded that PERB's 	remedial
34

authority 	is 	strictly limited, 	applying 	a 	standard 	utilized 	by
the NLRB and the 	federal 	courts. 	Hence, 	attorney fees 	and
related 	litigation 	costs 	are 	awarded only 	if 	a 	party's 	case 	is
without 	any arguable merit, 	and has been 	frivolous 	or 	dilatory
litigation 	pursued in bad 	faith. 	King City High School
District Association (3/3/82) 	PERB Decision No. 	197, 	p. 	26;
Chula Vista City School District 	(11/8/82) 	PERB Decision
No. 	256, 	p. 	8. 	While the District's claims may have been
belatedly made 	and poorly supported, 	if 	at 	all, 	given the
absence 	of 	additional 	Board 	precedent 	establishing 	standards
for 	information disclosure obligations 	and objections, 	it would
be hard 	to 	claim with 	confidence 	that 	the 	defenses 	were not
debatable. 	See 	also Eastern Maine Medical Center 	(1981)
253 NLRB 224 [105 LRRM 1665] enf. 	(1st Cir. 1981) 	658 F. 2d 1
[108 LRRM 2234]; Admiral Merchants Motor Freight, 	Inc. 	(1982)
265 NLRB No. 	16 [111 LRRM 1526]. 	However, 	to the extent the
District 	pursues 	such 	claims 	in the 	future, 	having had 	its
defenses 	rejected, 	it may encounter 	a reimbursement 	order 	that
was 	narrowly avoided this 	time 	around. 	Hedison
Manufacturing Co. 	v. 	NLRB 	(1st Cir. 	1981) 	643 	F.2d 32
[106 LRRM 2897, 	2900].
PROPOSED ORDER
Upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and the 	entire record 	in the 	case, 	and pursuant 	to
section 3541.5(c), 	it is found that the District 	violated
35

Government Code sections 3543.5(a), 	(b) and 	(c). 	It is hereby
ordered 	that 	the Modesto City Schools 	and High 	School 	District
and its 	representatives 	shall:
1. 	CEASE AND DESIST 	FROM:
Interfering with an 	employee's 	right 	to
representation, 	with the 	right 	of 	an 	employee organization to
represent 	employees, 	and with the administration of 	a
negotiated agreement, 	by 	refusing to 	furnish 	information
relevant 	to 	grievances 	filed on behalf 	of 	Patricia Gurney and
Leonard 	Choate.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF THE 	EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
(a) 	Upon request made 	by the Association within ten
(10) 	days of the 	date this 	order becomes final, 	furnish the
charging party with the 	information 	previously requested
concerning the 	Patricia Gurney and Leonard 	Choate 	grievances.
(b) 	Upon further 	request made within ten 	(10) 	days 	of
receipt 	of 	such information, 	at 	the election of 	the exclusive
representative or 	the 	respective employees, 	reopen the
Patricia Gurney and Leonard Choate 	grievances 	to 	allow 	a 	full
opportunity for 	the 	presentation of 	additional 	evidence 	and
argument.
(c) 	Within ten 	(10) 	workdays 	of 	service of a final
decision in this matter, 	post 	at 	all 	school 	sites 	and all 	other
work locations 	where notices 	to 	employees 	are 	customarily
36

placed, 	copies 	of the notice 	attached hereto 	as 	an appendix.
The 	notice 	must be 	signed by an 	authorized agent 	of 	the
District 	indicating that 	the District 	will 	comply with the
terms 	of 	this 	order. 	Such posting shall be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	insure that 	the 	notice 	is not 	reduced 	in
size, 	altered, 	defaced or 	covered by any other material.
(d) 	Upon issuance of 	a final 	decision, 	make written
notification of 	the 	actions 	taken to 	comply with the Order 	to
the 	Sacramento Regional 	Director 	of 	the 	Public Employment
Relations Board 	in 	accordance 	with her 	instructions.
Pursuant 	to California Administrative Code, 	title 8,
part 	III, 	section 	32305, 	this Proposed Decision and Order shall
become final 	on October 	29, 	1984, 	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
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
October 	29, 	1984, 	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
37

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: 	October 	9, 	1984
BARRY 	WINOGRAD
Administrative 	Law 	Judge
38