California Faculty Association (Hale, et al.) (PERB 0693H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
THOMAS 	E. 	HALE, 	GEORGE LEWIS,
PAUL F. 	MURPHY, 	BERNARD STRICKMEIER,
Charging 	Parties,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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)
)
) 	Case 	No. 	LA-CO-16-H
PERB 	Decision 	No. 	693-H
July 	26, 	1988
)
)
)
)
)
)
Appearances; 	Paul F. 	Murphy, 	on behalf of 	Charging Parties.
Before Hesse, 	Chairperson; 	Porter, 	Craib and Shank, 	Members.
DECISION AND 	ORDER
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(Board) 	on appeal by 	Charging 	Parties 	of 	the 	Board agent's
dismissal, 	attached hereto, 	of 	their 	charge 	that 	the 	Respondent
violated 	section 3571.1, 	subdivision 	(b) 	of 	the Higher
Education 	Employer-Employee 	Relations 	Act. 	We have 	reviewed
the 	dismissal 	and, 	finding 	it 	to be 	free of prejudicial 	error,
adopt 	it 	as 	the 	Decision of 	the 	Board 	itself.
The 	unfair practice 	charge 	in Case 	No. 	LA-C0-16-H 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
By 	the 	Board
__ )

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd . Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
January 	29, 	1988
Paul Murphy
Mathematics 	Department
California Polytechnic State 	University
San 	Luis 	Obispo, 	California 	93407
Re: 	LA-CO-16-H, Thomas E. Hale, 	George Lewis, Paul Murphy,
and Bernard 	Strickmeier 	v. 	California 	Faculty Association
DISMISSAL 	OF UNFAIR PRACTICE CHARGE
Dear Mr. 	Murphy:
The 	above-referenced 	unfair 	p r a c t i c e 	charge, 	f i l e d 	on 	October
29, 	1987, 	a l l e g e s 	that 	a 	f i e l d 	r e p r e s e n t a t i v e 	of 	the 	California
Faculty 	Association 	(Association) 	made 	false 	statements 	about
Charging 	P a r t i e s 	and 	t h a t 	the 	Association 	failed 	to 	resolve
t h e i r 	complaints 	about 	the 	matter, 	thereby 	i n t e r f e r i n g 	with
Charging 	P a r t i e s ' 	r i g h t s 	guaranteed 	by 	the 	Higher 	Educational
Employer-Employee 	Relations 	Act 	(HEERA). 	This 	conduct 	is
alleged 	to 	v i o l a t e 	Government 	Code 	s e c t i o n 	3571.l(b) 	of 	the
HEERA.
I 	indicated 	to 	you 	in my 	attached 	l e t t e r 	dated 	January 	20, 	1988
t h a t 	the 	above-referenced 	charge 	did 	not 	s t a t e 	a 	prima 	facie
c a s e . 	You 	were 	advised 	t h a t 	if 	t h e r e 	were 	any 	factual
inaccuracies 	or 	a d d i t i o n a l 	facts 	which 	would 	c o r r e c t 	the
d e f i c i e n c i e s 	explained 	in 	t h a t 	l e t t e r , 	you 	should 	amend 	the
charge 	accordingly. 	You 	were 	further 	advised 	that 	unless 	you
amended 	the 	charge 	to 	s t a t e 	a 	prima 	facie 	case, 	or 	withdrew 	it
p r i o r 	to 	January 	27, 	1988, 	it 	would 	be 	dismissed.
I 	have 	not 	received 	e i t h e r 	a 	request 	for 	withdrawal 	or 	an
amended 	charge 	and 	am 	therefore 	dismissing 	the 	charge 	based 	on
the 	f a c t s 	and 	reasons 	contained 	in 	my 	January 	20, 	1988 	l e t t e r .
In 	our 	telephone 	conversation of 	today, 	January 	29, 	1988, 	you
confirmed 	with 	me 	t h a t 	an 	amended 	charge 	w i l l 	not 	be 	f i l e d .
Right 	to 	Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	r e g u l a t i o n s , 	you
may 	obtain 	a 	review of 	t h i s 	d i s m i s s a l 	of 	the 	charge 	by 	f i l i n g
an 	appeal 	to 	the 	Board 	i t s e l f 	within 	twenty 	(20) 	calendar 	days

January 	29, 	1988
Dismissal 	of 	UPC/LA-C0-16-H
Page 	2
after 	service 	of 	this 	dismissal 	(California 	Administrative
Code, 	title 	8, 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five copies 	of 	such 	appeal must 	be 	actually
received 	by 	the 	Board 	itself 	before 	the 	close 	of 	business
(5:00 p . m . ) , 	or sent by telegraph, certified or Express United
States 	mail 	postmarked 	no 	later 	than 	the 	last 	date 	set 	for
filing. 	Code 	of Civil 	Procedure 	section 	1013 	shall 	apply.
(See 	section 	32135.) 	The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file 	a 	timely 	appeal 	of 	the 	refusal 	to 	issue 	a
complaint, 	any 	other 	party may 	file 	with 	the 	Board 	an 	original
and 	five 	copies 	of 	a 	statement 	in opposition within twenty
calendar 	days 	following 	the 	date 	of 	service 	of 	the 	appeal
(section 32635(b)).
Service
All 	documents 	authorized 	to 	be 	filed 	herein must 	also 	be
"served" 	upon all parties 	to 	the proceeding, 	and a 	"proof of
service" 	must 	accompany each copy 	of 	a 	document 	served 	upon a
party or 	filed 	with 	the Board 	itself. 	(See 	section 	32140 	for
the 	required contents 	and 	a 	sample 	form.) 	The document will 	be
considered 	properly 	"served" 	when 	personally 	delivered 	or
deposited 	in 	the 	first-class 	mail postage 	paid 	and properly
addressed.
Extension 	of 	Time
A 	request 	for 	an 	extension 	of 	time 	in which 	to 	file 	a document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the
Board 	at 	the 	previously noted 	address. 	A 	request 	for 	an
extension must 	be 	filed at 	least 	three 	calendar 	days 	before 	the
expiration 	of 	the 	time 	required 	for 	filing 	the document. 	The
request must 	indicate good cause 	for 	and, 	if 	known, 	the
position 	of each other 	party 	regarding 	the 	extension, 	and 	shall
be 	accompanied 	by proof of 	service 	of 	the 	request 	upon each
party 	(section 32132).

January 	29, 	1988
Dismissal 	of 	UPC/LA-C0-16-H
Page 3
Final 	Date
If 	no 	appeal 	is 	filed 	within the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired,
Sincerely,
JOHN 	SPITTLER
Acting 	General 	Counsel
By
DONN) GINGZA
Regional 	Attorney
Attachment
cc: 	Glenn Rothner, 	Esq.

STATE OP CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd. Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
January 	20, 	1988
Paul Murphy
Mathematics 	Department
California 	Polytechnic 	State 	University
San 	Luis 	Obispo, 	California 	93407
Re: 	LA-CO-16-H, Thomas E. 	Hale, 	George Lewis, 	Paul Murphy,
and Bernard 	Strickmeier 	v. 	California 	faculty 	Association
Dear Mr. 	Murphy:
The 	above-referenced 	unfair 	practice 	charge, 	filed 	on 	October
29, 	1987, 	a l l e g e s 	that 	a 	f i e l d 	representative 	of 	the 	California
Faculty 	Association 	(Association) 	made 	f a l s e 	statements 	about
Charging 	Parties 	and 	that 	the 	Association 	failed 	to 	resolve
their 	complaints 	about 	the 	matter, 	thereby 	interfering 	with
Charging Parties' 	r i g h t s 	guaranteed 	by 	the 	Higher 	Educational
Employer-Employee 	Relations Act 	(HEERA). 	This 	conduct 	is
alleged 	to 	violate 	Government 	Code 	section 	3571.l(b) 	of 	the
HEERA.
My 	investigation 	revealed 	the 	following 	f a c t s . 	Eileen 	Sullivan
is 	a 	Regional 	Service 	Coordinator 	with 	the 	Association 	and 	has
responsibility 	for 	representing 	employees 	in 	the 	bargaining
unit 	in 	grievance matters. 	In 	t h i s 	capacity, 	Sullivan
represented Alfred Bachman 	in 	a 	grievance 	challenging 	the
refusal 	of 	the 	Mathematics 	Department 	of 	the 	California
Polytechnic 	State 	University, 	San 	Luis 	Obispo 	(University) 	to
promote 	him.
An 	arbitration was 	scheduled 	for 	September 	26, 	1986 	in
connection 	with 	the 	grievance. 	Prior 	to 	this 	date, 	P h i l i p S.
Bailey, 	Dean 	of 	the 	School of 	Science 	and 	Mathematics, 	met 	with
Charging Parties on 	September 	16, 	1986 	for 	the 	purpose of
preparing 	for 	the 	arbitration 	and 	possible 	settlement
negotiations. 1
According 	to 	a 	chronology of 	events 	prepared 	by 	Charging
Parties 	from 	notes 	of 	Dr. 	Murphy 	and 	submitted 	to 	the
Association 	(Attachment 	5 	to charge) , 	Charging 	Parties were
discussing 	their 	testimony 	as 	potential 	witnesses. 	Charging
Parties 	allege 	that 	they 	kept 	confidential 	a l l 	discussions 	from
1
-	.	
Thomas 	E. 	Hale 	is 	Chair 	of 	the 	Mathematics 	Department,
George M. 	Lewis 	and Paul E. 	Murphy are Professors of
Mathematics, 	and 	H. 	Bernard 	Strickmeier 	is 	Chair 	of 	the
Mathematics 	Department 	Peer 	Review 	Committee.

LA-C0-16-H
January 20, 	1988
Page 	2
this 	meeting 	concerning 	the 	Bachman 	case. 	Dean Bailey
contacted 	Dr. 	Murphy again on September 	17 	to discuss 	the
status 	of 	the 	negotiations 	and 	solicited 	comments 	concerning
the possible 	settlement. 	On September 	18, 	Dean Bailey 	informed
Dr. 	Murphy 	that 	Eileen 	Sullivan 	had 	called 	a 	representative 	for
the University, 	Tom Trager, 	and 	alleged 	that 	Charging 	Parties
had 	"used 	threats 	and 	intimidation 	in order 	to 	influence 	the
selection of 	[the] 	1986-87 School 	Peer 	Review Committee."
Charging 	Parties 	denied 	and 	continue 	to deny 	that 	they had 	had
any contacts 	with 	others 	concerning 	the 	School 	Peer 	Review
Committee. 	Sullivan 	allegedly 	repeated 	her 	charges 	against
Charging 	Parties 	in 	settlement 	discussions 	with Dean Bailey 	on
September 	19. 	Sullivan, 	according 	to Bailey, 	had charged that
some members of 	the Mathematics Department, 	with some degree of
involvement 	by Charging 	Parties, 	were calling 	members 	of 	other
departments 	in an 	effort 	to 	influence 	the 	election of
"anti-Bachman" 	members 	to the School 	Peer 	Review Committee.
This 	activity 	and 	other 	unspecified 	activities 	were 	allegedly
described 	by 	the 	terms 	"Bachman 	bashing," 	"gutter 	slime,"
"threatening," 	and 	"tampering." 	Sullivan 	is 	alleged 	to have
made similar 	statements to Dr. 	Hale on September 	30, 	1986.
In a 	letter dated October 	9, 	1986 	to Edward R. 	Purcell, 	General
Manager 	of 	the Association, 	George 	Lewis complained that
Sullivan 	slandered 	him 	in 	the 	settlement 	negotiations. 	Purcell
responded 	in a 	letter dated October 	22, 	1986 	stating 	that he
had 	discussed 	the 	matter 	with 	"several 	principals" 	and 	failed
to accept 	Lewis 1 characterization of Sullivan's conduct as
involving 	slander.
In a letter to Purcell, 	dated January 22, 	1987, 	Charging
Parties 	demanded 	Sullivan 	be 	reprimanded 	and 	reassigned 	to
another 	campus. 	They claimed 	that 	Sullivan's 	use 	of 	slander
violated 	their 	academic 	freedom 	"to 	exercise 	[their]
professional 	judgement 	in 	a personnel 	action without 	fear 	of
retaliation, 	harassment 	[sic] 	and 	intimidation by a union
staff 	member 	who might 	disagree 	with 	that 	judgement." 	Charging
Parties 	attached 	to 	this 	letter 	a September 	26, 	1986 	letter
from 	Dean 	Bailey 	to 	Sullivan 	in which 	Bailey 	challenged
Sullivan 	to 	substantiate 	her 	charges 	after 	noting 	he 	had 	asked
the Charging 	Parties 	to 	respond 	to Sullivan's 	statements, 	some
of which are quoted 	in the 	letter. 	Paul B. 	Worthman, 	Associate
General Manager 	of 	the Association, 	responded 	in 	a 	letter 	dated
February 4, 	1987, 	promising 	to 	investigate 	their 	charges.
In a 	letter 	dated April 	27, 	1987 	from the Charging 	Parties 	to
Purcell, 	the Charging 	Parties claim that 	the Association had
failed 	to 	investigate 	the 	charges 	against 	Sullivan. 	They 	also
acknowledge 	that 	Purcell 	had 	indicated 	to 	them 	that 	the 	source
of 	information 	serving 	as 	the 	basis 	for 	Sullivan's 	statements
was 	other 	faculty members 	of 	the department. 	Purcell 	responded
to 	this 	letter 	in his own dated April 	29 	in which he claims 	to

LA-C0-16-H
January 20, 	1988
Page 3
have 	reviewed 	the 	documentation provided 	to 	him by 	the 	Charging
Parties 	and 	promises 	to consider 	any 	other 	material 	submitted.
In 	addition, 	Charging 	Parties complained 	to 	the Association 	in
a 	letter dated April 	28, 	1987 	that 	student 	evaluations of other
members 	of 	the department, 	including 	at 	least one of 	the
Charging 	Parties, 	was presented 	in support of Bachman's 	request
for 	reconsideration 	of 	the promotion decision 	by 	the 	School
Peer 	Review Committee. 	They 	intimated 	that 	Sullivan was
involved 	in 	this 	breach 	of 	confidentiality 	and demanded 	that
her 	involvement 	be 	investigated.
In 	another 	letter 	to 	Purcell 	from H. 	Bernard 	Strickmeier 	dated
April 28, 	1987, 	Purcell is chastized for 	failing to make an
on-site 	investigation 	and 	for 	curtailing Worthman's
investigation.
On May 	5, 	1987, 	Charging Parties wrote another 	letter 	to
Purcell 	taking 	issue 	with previous 	statements 	of 	Purcell 	and
demanding 	completion 	of 	the 	investigation 	of 	Sullivan.
Finally, 	in a letter dated September 23, 	1987, Worthman
expresses 	his 	regret 	that 	the 	settlement 	negotiations 	on 	the
Bachman matter 	did 	not 	resolve 	their 	concerns 	and 	that 	the
matter 	will 	be 	arbitrated. 	He 	defers 	any 	further discussion of
the complaints 	until 	the 	arbitration 	is completed.
Charging 	Parties 	contend 	that 	based 	upon Worthman's 	September
23, 	1987 	letter, 	the Association has 	indicated it has 	no
intention 	of 	fulfilling 	its promise 	to 	investigate 	the 	Sullivan
matter 	because 	the 	issues 	in Bachman's 	arbitration 	are
unrelated 	to 	the charges 	against 	Sullivan. 	By 	failing 	to
intercede 	in 	the 	matter 	they claim the Association 	has 	allowed
Sullivan 	to 	interfere 	with Charging 	Parties' 	rights guaranteed
by the HEERA, 	namely, 	the 	right to participate 	in the peer
review process 	and 	to exercise 	academic 	freedom. 	It 	is
contended 	that 	these 	rights 	are 	guaranteed 	by Government 	Code
sections 3561(b) 	and 	(c).
Based on the 	facts described above, 	the charge as presently
written 	fails 	to 	state 	a prima 	facie 	violation of 	the 	HEERA for
the 	reasons which 	follow.
Interference 	with 	Guaranteed 	Rights
In 	determining 	whether 	a prima 	facie 	violation of 	section
3571.1(b) 	of the HEERA has been stated, 	PERB will 	analyze the
case 	according 	to 	the principles 	applicable 	for 	violations 	of
3571(a), 	the parallel provision prohibiting employer
interference 	and 	reprisals. 	Service 	Employees 	International
Union, 	Local 99 	(Kimmett) 	(1979) 	PERB Decision No. 	106.
Although 	Kimmett 	arose 	under 	the 	Educational 	Employment

LA-C0-16-H
January 	20, 	1988
Page 4
Relations 	Act 	(EERA), 	the 	statutory provisions 	regarding
interference 	under 	the 	EERA 	and 	HEERA 	have 	been 	treated
similarly. 	Regents 	of 	the 	University 	of 	California 	(1983) 	PERB
Decision No. 	308-H. 	In order 	to 	state a prima 	facie 	violation
for 	interference, 	the 	Charging 	Parties 	must 	allege 	facts
demonstrating 	that 	the 	Association's 	conduct 	tends 	to 	or 	does
result 	in 	some 	harm 	to 	rights 	of 	Charging 	Party guaranteed 	by
the 	HEERA. 	Carlsbad 	Unified 	School 	District 	(1979) 	PERB
Decision No. 	89.
As 	a preliminary matter, 	the 	allegation 	that 	the Association
interfered 	with Charging 	Parties' 	rights 	through 	its 	defamatory
statements 	appears 	to 	be 	barred 	by 	the 	six 	month 	statute 	of
limitations. 	Government Code 	3563.2(a). 	These 	statements were
made 	in 	September 	1986 	and 	the charge 	was 	filed 	on October 	29,
1987, 	nearly one year 	later. 	Although 	the 	statute 	of
limitations 	may 	be 	tolled 	under 	one 	of 	several exceptions,
there 	are 	no facts 	to 	indicate 	that 	the only one 	applicable 	to
this case, 	the doctrine of equitable 	tolling, 	could 	be
recognized 	here. 	The 	injured 	party 	must 	have 	more 	than 	one
legal 	remedy 	available 	and 	pursue 	the 	alternative 	one 	in
reasonable 	good 	faith. 	San 	Dieguito 	Union 	High 	School 	District
(1982) 	PERB Decision No. 	194. 	Writing 	letters and 	requesting
an 	investigation 	from 	the 	Association 	would 	not 	appear 	to
satisfy 	this 	requirement, 	since 	the Association 	is not 	a
judicial 	body 	or 	other 	tribunal.
Charging 	Parties 	contend 	that 	Government 	Code 	sections 	3561(b)
and 	(c) 	create 	substantive 	rights 	guaranteed 	by 	the 	HEERA.2
2Section 	3561(b) 	provides:
The 	Legislature 	recognizes 	that 	joint
decisionmaking 	and 	consultation 	between
administration and 	faculty 	or 	academic
employees 	is 	the 	long-accepted 	manner 	of
governing 	institutions 	of 	higher 	learning 	and
is essential 	to the performance 	of 	the
educational 	missions 	of 	these 	institutions,
and declares 	that 	it 	is 	the 	purpose of 	this
chapter 	to 	both 	preserve 	and 	encourage 	that
process. 	Nothing 	contained 	in 	this chapter
shall 	be 	construed 	to 	restrict, 	limit 	or
prohibit 	the 	full 	exercise 	of 	the 	functions 	of
the 	faculty 	in 	any 	shared 	governance
mechanisms or practices, 	including 	the
Academic 	Senate 	of 	the 	University 	of
California 	and 	the 	divisions 	thereof, 	the
Academic 	Senates 	of 	the 	California 	State

LA-C0-16-H
January 	20, 	1988
Page 5
Although 	it 	is 	not 	clear 	that 	these 	provisions do create 	any
rights 	redressable 	through 	the 	unfair 	practice 	procedure, 	even
assuming 	arguendo 	that 	they 	do, 	the 	statements 	made 	would 	not
constitute 	a violation of 	the 	HEERA. 	The 	test 	for 	whether
statements 	constitute 	interference 	or 	coercion 	depends 	upon
whether, 	under 	the 	existing 	circumstances, 	they 	reasonably 	tend
to 	interfere 	or 	coerce 	in 	the 	exercise 	of guaranteed 	rights,
not 	whether 	the 	employee 	subjectively 	perceives 	the 	statements
in 	that manner. 	Clovis 	Unified 	School District 	(1984) 	PERB
Decision No. 	389. 	Since 	Sullivan has 	not 	threatened 	to 	take
any 	adverse 	action 	against 	Charging 	Parties 	and 	has 	no 	direct
authority 	to 	affect 	their 	employment 	status 	as 	a consequence 	of
their 	participation 	or 	non-participation 	in 	the 	peer 	review
process, 	there 	is 	no 	reasonable 	tendency to 	interfere 	with 	such
activity. 	In 	the 	context of 	an 	advocate 	stating 	her 	position
in settlement 	negotiations, 	allegedly 	false or 	exaggerated
statements 	would 	not 	appear 	to 	carry 	such 	authority within 	the
wider 	academic 	community 	so 	as 	to 	significantly deter
individuals 	from continuing 	to participate 	in peer 	review. 	In
addition, 	the 	facts 	alleged 	do not 	indicate 	that 	Sullivan
intended 	for 	her 	statements 	to 	be 	republished 	to 	other 	members
of 	the 	faculty or 	even 	to Charging 	Parties. 	Nor 	do 	they
indicate 	that 	the 	statements 	were 	in 	fact 	republished 	to other
third 	parties 	or 	that 	the 	reasonable 	and 	probable consequence 	of
(footnote 2, 	con't)
University, 	and 	other 	faculty councils, 	with
respect 	to 	policies 	on 	academic 	and 	professional
matters 	affecting 	the 	California 	State
University, 	the University of 	California, 	or
Hastings College 	of 	the 	Law. 	The principle of
peer 	review of 	appointment, 	promotion, 	retention,
and 	tenure 	for 	academic 	employees 	shall 	be
preserved.
Section 3561(c) 	provides:
It 	is 	the policy of 	the 	State 	of 	California 	to
encourage 	the 	pursuit 	of 	excellence 	in 	teaching,
research, 	and 	learning 	through 	the 	free exchange
of 	ideas among 	the 	faculty, 	students, 	and staff
of 	the University of 	California, 	Hastings College
of 	the 	Law, 	and 	the California State University.
All 	parties 	subject 	to 	this chapter 	shall 	respect
and 	endeavor 	to 	preserve 	academic 	freedom 	in 	the
University of 	California, 	Hastings College of 	the
Law, 	and 	the California 	State 	University.

LA-C0-16-H
January 	20, 	1988
Page 6
her 	conduct 	would 	be 	that 	the 	statements 	would 	be 	republished
to 	persons 	other 	than 	the 	Charging 	Parties 	and 	her 	immediate
audience.
An 	additional 	reason 	for 	concluding 	that 	the 	statements 	do 	not
violate 	the 	HEERA 	is 	that 	Government 	Code 	section 	3571.3
provides 	that:
The expression of any views, 	arguments, 	or
opinions 	or 	the dissemination 	thereof,
whether 	in written, 	printed, 	graphic, 	or
visual 	form, 	shall 	not 	constitute, 	or 	be
evidence 	of, 	an unfair 	labor 	practice under
any provision of 	this chapter, 	unless 	such
expression contains 	a 	threat 	of 	reprisal,
force, or promise of benefit. 	. 	.
This 	provision 	would 	serve 	to 	protect 	such 	statements 	as
"gutterslime," 	"Bachman bashing," 	and 	the 	like, 	since 	no 	facts
are 	alleged 	to 	indicate 	accompanying 	threats 	or 	inducements.
Also, 	under precedential authority, 	PERB has 	ruled 	that 	speech
by union 	activists 	is protected 	so long 	as 	it 	is 	related 	to
matters 	of 	legitimate 	concern 	to 	employees 	as 	employees 	and 	is
not so 	"opprobrious, 	flagrant, 	insulting, 	defamatory,
insubordinate, 	or 	fraught with malice" 	(Mt. 	San Antonio
Community College District 	(1982) 	PERB Decision No. 	224) 	as 	to
cause 	"substantial 	disruption 	of 	or 	material 	interference 	with
school 	activities." 	(Richmond 	Unified 	School 	District 	(1979)
PERB Decision No. 	99; 	Rancho 	Santiago Community College
District 	(1986) 	PERB Decision No. 	602) 	In Rancho Santiago,
PERB 	found 	to 	be 	protected 	statements 	charging 	the 	employer
with 	falsifying 	teacher 	evaluations 	for 	purposes 	of 	political
retaliation, 	invading 	privacy, 	and 	administrative meddling 	to
break 	up 	faculty departments. 	Id. 	Although 	these 	free 	speech
rule cases 	do not 	specifically 	address 	the 	scope 	of 	protected
speech when 	statements 	are made 	by 	an 	union 	official 	against
other members of 	the 	bargaining 	unit, 	they do 	recognize 	the
general 	proposition 	that 	speech 	in the 	context of 	union
activities 	is 	accorded generous protection. 	In the 	specific
context 	of 	grievance 	activities 	this 	notion 	has 	also 	been
recognized 	to promote 	important 	statutory purposes. 	It has
been held 	pursuant 	to 	the Labor 	Management 	Relations 	Act 	that
statements made 	by 	grievance 	representatives 	during 	the
processing 	of 	a 	grievance 	are privileged 	and 	cannot 	support 	a
libel 	action because were 	it otherwise, 	"the 	likelihood 	of 	the
attainment 	of peaceful 	adjustments 	or 	disposition of 	the 	issues
involved 	between 	[the parties] 	through 	the 	conference 	or
bargaining 	processes 	would 	be 	greatly decreased." 	General
Motors Corporation 	v. 	Mendicki, 	367 F.2d 	66 	[63 	LRRM 	2257]
(10th Cir. 	1966)

LA-C0-16-H
January 	20, 	1988
Page 	7
Breach 	of 	Duty 	of 	Fair 	Representation
The charge 	also 	fails 	to state 	a prima 	facie 	violation 	under
the 	theory 	of 	a 	breach 	of 	the 	duty 	of 	fair 	representation 	to
the 	extent 	that 	the 	Association nay 	have 	failed 	to 	discipline
Sullivan. 	A 	labor 	organization 	can 	breach 	its 	duty 	of 	fair
representation 	by 	engaging 	in conduct 	toward 	its 	Members 	that
is arbitrary, 	discriminatory or 	in bad 	faith. 	Rocklin Teachers
Professional Association 	(Romero) 	(1978) 	PERB Decision No.
124. 	However, 	this duty extends only 	to 	"activities 	that have
a 	substantial 	impact 	on 	the 	relationships 	of 	unit 	members 	to
their 	employers 	. . . " 	and 	does 	not 	apply 	to 	those 	" . . .
activities 	which 	do 	not 	directly 	involve 	the 	employer 	or 	which
are 	strictly 	internal 	union matters." 	Service 	Employees
International Union, 	Local 99 	(Kimmett), 	supra. 	It is claimed
that 	the 	injury 	to Charging 	Parties 	in 	allowing 	Sullivan 	to
continue 	in 	her 	post 	is 	that 	it 	interferes 	with 	their 	right 	to
participate 	in peer 	review activities. 	However, 	the 	selection
of 	the peer 	review committee 	is 	outside 	the 	scope 	of
representation 	and 	is 	hence 	not 	a matter 	upon which 	these
employees 	rely 	upon 	their 	exclusive 	representative 	in dealings
with 	their 	employer. 	Government 	Code 	section 	3562(r). 	There
are 	no 	other 	facts 	to 	indicate 	that 	the 	failure 	to 	discipline
Sullivan 	has 	any 	substantial 	impact 	on 	Charging 	Parties'
relationship 	to 	their 	employer.
Finally, 	even 	if 	a duty 	is owed 	to discipline 	a grievance
representative, 	Charging 	Parties 	have 	failed 	to 	allege
sufficient 	facts 	to demonstrate 	that 	the Association has 	acted
in an 	"arbitrary, 	discriminatory or 	bad 	faith manner." 	They
allege 	that 	the Association 	reneged 	on Northman's promise 	to
"thoroughly 	investigate 	the 	matter." 	They 	insist 	that 	Purcell
failed 	to 	give 	them an 	adequate 	opportunity 	to 	defend
themselves 	because 	he 	was 	not 	forthcoming 	with 	the 	details
surrounding 	the 	alleged peer 	review 	tampering. 	However, 	they
acknowledge 	that 	the 	Association 	has 	solicited 	written
documentation 	of 	their 	complaints, 	has 	reviewed the material,
and has 	discussed 	the 	matter 	with 	"several principals."
Without more, 	the 	fact 	that 	they are dissatisfied with 	the
manner 	in which 	the 	investigation was conducted, 	or 	the 	lack 	of
corrective 	action, 	or 	that 	Purcell 	decided 	the 	investigation
was complete, 	demonstrate arbitrary, 	discriminatory or 	bad
faith conduct. 	Moreover, Northman's 	final communication does
not 	unequivocally evidence an 	intent 	to close 	the 	matter.
For 	these 	reasons, 	the 	charge 	as presently written does not
state a prima 	facie case. 	If you 	feel 	that 	there are any
factual 	inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts
which 	would 	correct 	the 	deficiencies 	explained 	above, 	please
amend 	the charge 	accordingly. 	The 	amended 	charge 	should 	be
prepared 	on 	a 	standard 	PERB 	unfair 	practice 	charge 	form clearly
labeled First Amended Charge, 	contain all 	the 	facts 	and

LA-CO-16-H
January 	20, 	1988
Page 	8
allegations you 	wish 	to 	make, 	and 	be 	signed 	under 	penalty 	of
perjury 	by 	the 	charging 	party. 	The 	amended 	charge 	must 	be
served 	on 	the 	respondent 	and 	the 	original 	proof 	of 	service 	must
be 	filed 	with 	PERB. 	If 	I 	do 	not 	receive 	an 	amended 	charge or
withdrawal 	from you before January 	27, 	1988, 	I 	shall dismiss
your 	charge. 	If you 	have 	any questions 	on 	how to proceed,
please call me at 	(213) 	736-3127.
Sincerely,
DONN 	GINOZA
Regional 	Attorney