Antelope Valley Community College District (PERB 0097E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ANTELOPE VALLEY COMMUNITY
COLLEGE DISTRICT,
Charging Party, 	Case No. LA-CO-28
V .
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS CHAPTER 374,
Respondent. PERB Decision No. 97
CALIFORNIA SCHOOL EMPLOYEES July 18, 1979
ASSOCIATION AND ITS CHAPTER 374,
Charging Party,
V .
ANTELOPE VALLEY COMMUNITY 	Case No. LA-CE-110
COLLEGE DISTRICT,
Respondent.
Appearances: John Wagner, Attorney (Wagner and Wagner) for
Antelope Valley Community College District;
Madalyn J. Frazzini, Attorney for California School Employees
Association and its Chapter 374.
Before Gluck, Chairperson; Gonzales, Member.*
DECISION
This case is before the Public Employment Relations Board
(hereafter PERB or Board) on exceptions to a proposed decision
of a PERB hearing officer filed by both the Antelope Valley
Community College District (hereafter District) and the
Board Member Moore did not participate in this decision.
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANTELOPE 	VALLEY 	COMMUNITY
COLLEGE 	DISTRICT,
Charging 	Party,
V.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER 	374,
Respondent.
)
)
)
) 	Case 	No. 	LA-C0-28
PERB 	Decision 	No. 	97
July 	18, 	1979
)
)
)
)
)
)
)
)
CALIFORNIA 	SCHOOL EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER 	374,
Charging 	Party,
V.
ANTELOPE 	VALLEY COMMUNITY
COLLEGE 	DISTRICT,
Respondent.
)
)
)
)
)
)
)
) 	Case 	No. 	LA-CE-110
)
)
)
)
Appearances: 	John 	Wagner, 	Attorney 	(Wagner 	and Wagner) 	for
Antelope 	Valley 	Community 	College 	District;
Madalyn 	J. 	Frazzini, 	Attorney 	for 	California 	School 	Employees
Association 	and 	its 	Chapter 	374.
Before 	Gluck, 	Chairperson; 	Gonzales, 	Member.*
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	on 	exceptions 	to 	a 	proposed 	decision
of 	a 	PERB 	hearing 	officer 	filed 	by 	both 	the Antelope 	Valley
Community 	College 	District 	(hereafter 	District) 	and 	the
-·~"Board Member 	Moore 	did 	not 	participate 	in 	this 	decision.

California School Employees Association and its Chapter 374
(hereafter CSEA) . Each of the parties had filed an unfair
practice charge against the other.
FACTS
CSEA filed a request with the District for recognition as
the exclusive representative of a "wall-to-wall" unit of
classified employees on April 1, 1976. The District withheld
recognition. Shortly after receipt of CSEA's request, the
District designated certain classified employees as management,
supervisory and certain as confidential. Hereafter, they will
be referred to as "the designees".
On February 16, 1977, at which time its request still had
not been granted, CSEA sent a letter to the District
superintendent and president, Dr. C. W. Stine, which read, in
part:
In an effort to continue previously accepted
procedures and the continued well being of
our members, CSEA Chapter 374, demands the
right to proceed into negotiations on behalf
of the members of this chapter. We insist
that we be placed on the agenda for the
regular Board of Trustees Meeting,
April 4, 1977 in order that we may present
our salary, fringe benefits and contract
proposals for the 1977-78 Academic Year.
Dr. Stine's response, dated February 28, 1977, stated, in
part:
The matter of your demand to proceed at this
time with negotiations on behalf of members
of Chapter 374 has substantial legal and
procedural implications. That demand has
been referred to our counsel and in the
event that we can unilaterally make a
determination in the matter, you will be so
notified.
2
California
	School
	Employees
	Association
	and
	its
	Chapter
	374
(hereafter
	CSEA). 	Each
	of 	the
	parties
	had
	filed
	an
	unfair
practice
	charge
	against
	the
	other.
FACTS
CSEA
	filed
	a
	request
	with
	the
	District
	for
	recognition
	as
the
	exclusive
	representative
	of
	a
	"wall-to-wall"
	unit 	of
classified
	employees
	on
	April 	1,
	1976.
	The
	District
	withheld
recognition. 	Shortly
	after
	receipt
	of
	CSEA's
	request, 	the
District
	designated
	certain 	classified
	employees
	as
	management,
supervisory
	and
	certain
	as
	confidential.
	Hereafter, 	they
	will
be
	referred
	to
	as 	"the 	designees".
On
	February 	16,
	1977,
	at
	which
	time
	its
	request
	still
	had
not
	been
	granted,
	CSEA
	sent
	a
	letter
	to
	the
	District
superintendent
	and
	president,
	Dr.
	C.
	W.
	Stine,
	which
	read,
	in
part:
In
	an
	effort
	to 	continue 	previously
	accepted
procedures
	and
	the 	continued 	well
	being
	of
our
	members,
	CSEA
	Chapter 	374,
	demands
	the
right
	to
	proceed
	into 	negotiations
	on
	behalf
of 	the
	members
	of
	this
	chapter.
	we
	insist
that
	we
	be
	placed
	on
	the
	agenda
	for 	the
regular
	Board
	of 	Trustees
	Meeting,
April
	4,
	1977
	in 	order
	that
	we
	may
	present
our
	salary, 	fringe 	benefits
	and
	contractproposals 	for 	the
	1977-78 	Academic
	Year.
Dr.
	Stine's
	response, 	dated 	February 	28, 	1977,
	stated,
	in
part:
The
	matter 	of
	your
	demand
	to 	proceed
	at 	this
time 	with
	negotiations
	on
	behalf 	of
	members
of 	Chapter
	374
	has
	substantial 	legal
	and
procedural 	implications.
	That 	demand
	has
been
	referred 	to 	our 	counsel
	and
	in 	the
event 	that
	we
	can
	unilaterally
	make 	a
determination 	in 	the 	matter,
	you
	will
	be 	so
notified. 
2

On March 15, 1977, Dr. Stine met with the designees. 	The
purpose of the meeting was to suggest that the designees
formulate and present a wage and fringe proposal for management
and confidential employees of the District. On the same day,
Dr. Stine met with all classified employees of the District.
At this meeting, he indicated his personal distaste for the
Educational Employment Relations Act (hereafter EERA) , 1 the
likelihood that a unit determination hearing before the PERB
would be two years off and the possibility that EERA would be
repealed by then.
In the course of this meeting, Dr. Stine referred to
"outside influences" on the District. He then invited the
employees to present salary and fringe proposals and indicated
his preference for dealing with all the classified employees in
a single group.
In response to an inquiry as to why certificated employees
had received a salary increase whereas classified employees had
not, he stated certificated employees had received an increase
according to their "activities" as opposed to classified
employees who had not pursued the same "activities" at the same
time .
On March 19, 1977, the designees met at the home of one of
that group. Discussion included the formation of an
all-inclusive classified unit to prepare and present economic
proposals to the District. A memo to that effect was prepared
The EERA is codified at Government Code section 3540 et
seq. Hereafter, all references are to the Government Code
unless otherwise indicated.
On
	March
	15,
	1977, 	Dr.
	Stine
	met
	with
	the
	designees.
	The
purpose
	of 	the
	meeting
	was
	to
	suggest
	that
	the 	designees
formulate
	and
	present
	a 	wage 	and
	fringe
	proposal 	for
	management
and
	confidential
	employees
	of
	the
	District.
	On
	the
	same
	day,
Dr.
	Stine
	met
	with
	all
	classified
	employees
	of 	the
	District.
At
	this
	meeting,
	he
	indicated
	his
	personal
	distaste
	for 	the
Educational
	Employment
	Relations
	Act
	(hereafter
	EERA)
,1	
the
likelihood
	that
	a
	unit
	determination 	hearing 	before 	the
	PERB
would 	be
	two
	years
	off
	and
	the
	possibility
	that
	EERA
	would
	be
repealed
	by
	then.
In
	the 	course 	of
	this
	meeting,
	Dr.
	Stine 	referred 	to
"outside 	influences"
	on
	the
	District.
	He
	then
	invited 	the
employees
	to 	present
	salary
	and
	fringe 	proposals
	and
	indicated
his
	preference 	for 	dealing
	with
	all
	the
	classified
	employees
	in
a
	single
	group.
In
	response
	to
	an
	inquiry
	as
	to
	why
	certificated
	employees
had
	received
	a
	salary 	increase
	whereas
	classified
	employees
	had
not,
	he
	stated 	certificated
	employees
	had
	received
	an
	increase
according 	to
	their 	"activities"
	as 	opposed
	to
	classified
employees
	who 	had
	not 	pursued 	the
	same
	"activities" 	at
	the
	same
time.
On
	March
	19, 	1977,
	the 	designees
	met
	at
	the
	home
	of
	one 	of
that
	group. 	Discussion 	included 	the 	formation 	of
	an
all-inclusive 	classified 	unit 	to 	prepare
	and
	present
	economic
proposals 	to 	the
	District.
	A memo
	to 	that 	effect
	was
	prepared
1lThe
	EERA
	is 	codified 	at
	Government 	Code
	section
	3540
	etseq. 	Hereafter, 	all 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	indicated. 3

and signed by nine of the designees. The memo also called for
a meeting of all classified employees to discuss the plan.
That meeting was held on March 24 in a campus facility
approved for such use by Mr. Montamble, the District
representative for receipt of wage and fringe proposals.
Fifty-eight classified employees attended. The meeting was
"chaired" by one of the designees who explained that the
proposed classified unit would be loosely structured, entail no
dues obligation, have no elected officers, have no constitution
or by-laws and would remain in effect as long as the employees
were satisfied.
Those attending the meeting were asked to sign a supporting
document and participate in a secret ballot to determine
whether to go forward with the plan.
During the meeting, the chairperson suggested that the
District might be receptive to adopting a "median salary
schedule" concept which had already been put into effect for
certificated employees. CSEA had been unsuccessful in getting
such a concept approved by the District though it had attempted
to do so continuously since 1974.
Sometime thereafter, the secret ballot was conducted. 	It
called for a yes-no vote on the question of a single classified
unit. Originally, the ballot also called for a yes-no vote on
the question of the selection of CSEA as the exclusive
representative of the unit, but that portion of the ballot was
crossed out on the final version. Dr. Stine's secretary typed
the ballot form.
and 	signed 	by 	nine 	of 	the 	designees. 	The 	memo 	also 	called 	for
a 	meeting 	of 	all 	classified 	employees 	to 	discuss 	the 	plan.
That 	meeting 	was 	held 	on 	March 	24 	in 	a 	campus 	facility
approved 	for 	such 	use 	by Mr. 	Montamble, 	the 	District
representative 	for 	receipt 	of 	wage 	and 	fringe 	proposals.
Fifty-eight 	classified 	employees 	attended. 	The 	meeting 	was
"chaired" 	by 	one 	of 	the 	designees 	who 	explained 	that 	the
proposed 	classified 	unit 	would 	be 	loosely 	structured, 	entail 	no
dues 	obligation, 	have 	no 	elected 	officers, 	have 	no 	constitution
or 	by-laws 	and 	would 	remain 	in 	effect 	as 	long 	as 	the 	employees
were 	satisfied.
Those 	attending 	the 	meeting 	were 	asked 	to 	sign 	a 	supporting
document 	and 	participate 	in 	a 	secret 	ballot 	to 	determine
whether 	to 	go 	forward 	with 	the 	plan.
During 	the 	meeting, 	the 	chairperson 	suggested 	that 	the
District 	might 	be 	receptive 	to 	adopting 	a 	"median 	salary
schedule" 	concept 	which 	had 	already 	been 	put 	into 	effect 	for
certificated 	employees. 	CSEA had 	been 	unsuccessful 	in 	getting
such 	a 	concept 	approved 	by 	the 	District 	though 	it 	had 	attempted
to 	do 	so 	continuously 	since 	1974.
Sometime 	thereafter, 	the 	secret 	ballot 	was 	conducted. 	It
called 	for 	a 	yes-no 	vote 	on 	the 	question 	of 	a 	single 	classified
unit. 	Originally, 	the 	ballot 	also 	called 	for 	a 	yes-no 	vote 	on
the 	question 	of 	the 	selection 	of CSEA 	as 	the 	exclusive
representative 	of 	the 	unit, 	but 	that 	portion 	of 	the 	ballot 	was
crossed 	out 	on 	the 	final 	version. 	Dr. 	Stine's 	secretary 	typed
the 	ballot 	form.
4

On March 28, one of the designees sent a memo to all
classified employees announcing the result of the balloting as
71 for a single unit, 8 opposed and 2 not voting. The memo
stated that of 56 employees who had signed a petition in
support of CSEA's request for recognition, 24 had requested
that their names be removed, 12 had left the District and one
would be leaving. It also stated that 52 persons had signed
the document supporting the designees' plan discussed at the
March 24 meeting.
Between March 21 and March 25, the following petition was
circulated by persons included in the designee group:
After consideration and discussion with my
fellow employees of the advantages and
disadvantages of the CSEA Petition for
Recognition I signed in 1976, I now feel
that the petition no longer serves my best
interests.
With this new knowledge, I now request my
name be withdrawn.
The record fails to show whether this petition was presented to
Dr. Stine or the board of trustees.
On April 22, 1977, CSEA filed an unfair practice charge
alleging that the District had violated subsections (a) , (b)
and (d) of section 3543.5 of the EERA. 	These provide:
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.
On
	March
	28,
	one
	of
	the
	designees
	sent
	a
	memo
	to
	all
classified
	employees
	announcing
	the
	result
	of 	the
	balloting
	as
71
	for
	a
	single
	unit,
	8
	opposed
	and
	2
	not
	voting.
	The 	memo
stated 	that
	of
	56
	employees
	who
	had
	signed
	a
	petition 	in
support 	of
	CSEA's
	request 	for
	recognition,
	24
	had
	requested
that 	their
	names
	be 	removed,
	12
	had
	left
	the
	District
	and
	one
would
	be
	leaving.
	It
	also 	stated 	that
	52
	persons
	had
	signed
the
	document
	supporting 	the
	designees' 	plan 	discussed
	at
	the
March 	24
	meeting.
Between
	March 	21 	and 	March
	25,
	the
	following
	petition
	was
circulated
	by
	persons 	included 	in
	the 	designee 	group:
After 	consideration
	and
	discussion
	with
	my
fellow
	employees
	of 	the 	advantages
	and
disadvantages 	of 	the
	CSEA
	Petition
	forRecognition
	I
	signed 	in
	1976,
	I
	now
	feel
that
	the
	petition
	no
	longer
	serves
	my
	best
interests.
With
	this
	new
	knowledge,
	I 	now
	request
	my
name 	be
	withdrawn.
The
	record
	fails
	to
	show
	whether
	this 	petition
	was
	presented
	to
Dr.
	Stine
	or 	the 	board
	of
	trustees.
On
	April
	22, 	1977,
	CSEA
	filed
	an
	unfair 	practice
	charge
alleging 	that
	the
	District
	had
	violated 	subsections
	(a),
	(b)
and 	(d)
	of 	section
	3543.5
	of 	the
	EERA.
	These
	provide:
It
	shall
	be
	unlawful 	for
	a
	public 	schoolemployer
	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 	coerceemployees 	because 	of 	their 	exercise 	of
rights 	guaranteed
	by
	this 	chapter.
5

(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(d) Dominate or interfere with the formation
or administration of any employee
organization, or contribute financial or
other support to it, or in any way encourage
employees to join any organization in
preference to another.
Sometime after CSEA filed its unfair practice charge, five
of the designees formed a committee to present a wage and
fringe package on behalf of all classified employees. 	That
package was ultimately approved by the District board of
trustees.
During the course of the unfair practice hearing, Dr. Stine
denied involvement in any of the events following his meeting
with the classified employees on March 15. His testimony was
that he acquired knowledge of the alleged facts while preparing
for the unfair charge.
On May 31, the District filed an unfair charge against CSEA
alleging that CSEA, by its February 16 demand to meet and
negotiate, was attempting to cause the District to violate
section 3543.5 (d) of the EERA.
(b) 	Deny
	to
	employee
	organizations
	rights
guaranteed
	to
	them 	by
	this
	chapter.
(d)
	Dominate
	or
	interfere
	with
	the 	formationor
	administration 	of
	any 	employee
organization,
	or
	contribute 	financial
	or
other
	support 	to
	it,
	or 	in
	any
	way
	encourage
employees
	to
	join
	any
	organization
	in
preference
	to
	another.
Sometime
	after
	CSEA
	filed
	its
	unfair
	practice
	charge, 	five
of
	the 	designees
	formed
	a
	committee
	to 	present
	a 	wage
	and
fringe
	package
	on
	behalf 	of
	all
	classified
	employees.
	That
package
	was
	ultimately
	approved
	by
	the
	District
	board
	of
trustees.
During
	the 	course
	of 	the
	unfair
	practice
	hearing,
	Dr.
	Stine
denied 	involvement
	in
	any
	of 	the 	events 	following
	his
	meeting
with 	the
	classified
	employees
	on 	March
	15. 	His
	testimony
	was
that
	he
	acquired
	knowledge
	of
	the
	alleged
	facts
	while
	preparing
for
	the
	unfair
	charge.
On
	May
	31,
	the
	District 	filed
	an
	unfair
	charge
	against
	CSEA
alleging 	that
	CSEA, 	by
	its
	February
	16 	demand
	to
	meet
	and
negotiate,
	was
	attempting 	to
	cause 	the
	District
	to
	violate
section
	3543.S(d)
	of 	the
	EERA.
6

Following an evidentiary hearing, the PERB hearing officer
issued a proposed decision which dismissed the District's
charge against CSEA and that portion of CSEA's charge which
alleged a violation of section 3543.5 (a) . It sustained CSEA's
charge that the District violated section 3543.5 (d) . The
proposed decision was silent as to the alleged violation of
section 3543.5 (b) .
The District's exceptions to the proposed decision are as
follows :
(1) 	The hearing officer failed to find that CSEA
intended by its February letter to require
negotiations as an exclusive representative and thus
to force the District to provide unlawful support to
CSEA in violation of section 3543.5 (d) . In
furtherance of this argument, the District claims that
the word "demand" is significantly different in
meaning from the word "request."
(2 ) 	The actions of the designees cannot be
attributed to the District since the matter of their
status as managerial or confidential employees was
placed in issue by CSEA's filing with PERB.
(3) The conclusion that Dr. Stine had called the
meeting of designees to suggest that they draw up
salary and fringe proposals for managerial and
confidential employees is not supported by the
evidence.
Following
	an
	evidentiary
	hearing,
	the
	PERB
	hearing
	officer
issued
	a
	proposed
	decision
	which
	dismissed 	the
	District's
charge
	against
	CSEA
	and
	that
	portion 	of
	CSEA's
	charge
	which
alleged
	a
	violation
	of
	section
	3543.S(a).
	It
	sustained
	CSEA's
charge
	that
	the
	District
	violated 	section
	3543.S(d).
	The
proposed
	decision
	was
	silent
	as
	to 	the
	alleged
	violation
	of
section
	3543.S(b).
The
	District's
	exceptions
	to
	the
	proposed
	decision
	are
	as
follows:
(1) 	The
	hearing
	officer 	failed
	to 	find
	that
	CSEA
intended
	by
	its
	February
	letter
	to
	require
negotiations
	as
	an
	exclusive
	representative
	and
	thus
to 	force 	the
	District
	to
	provide 	unlawful
	support
	to
CSEA
	in
	violation 	of 	section
	3543.S(d). 	In
,,
furtherance 	of
	this
	argument, 	the
	District
	claims
	that
the
	word 	"demand"
	is 	signific~ntly 	different
	in
meaning 	from
	the
	word
	"request."
(2) 	The
	actions 	of
	the 	designees 	cannot
	be
attributed
	to 	the
	District
	since 	the 	matter 	of
	their
status
	as 	managerial 	or
	confidential
	employees
	was
placed 	in 	issue
	by 	CSEA's
	filing
	with
	PERB.
(3) 	The
	conclusion
	that
	Dr.
	Stine
	had
	called 	the
meeting
	of 	designees 	to 	suggest 	that
	they
	draw 	up
salary
	and
	fringe 	proposals 	for 	managerial
	and
confidential
	employees
	is
	not 	supported
	by
	the
evidence.
7

(4) The hearing officer's conclusion that
classified employees had gone without an increase for
a long time is not supported by the evidence.
(5) The hearing officer erred in referring to a
stipulation between the District and CSEA which was
presented in the representation hearing held after the
conclusion of the unfair practice hearing and which
established that the designees were management,
confidential and supervisory employees.
CSEA filed exceptions to the dismissal of that portion of
its charge which alleges that Dr. Stine's conduct was in
violation of section 3543.5 (a) and (b) and to that portion of
the proposed remedy which requires posting of a notice of
violation on District bulletin boards. 	CSEA urges that Dr.
Stine read such notice to all classified employees.
DISCUSSION
Section 3543.5 of the EERA makes it unlawful for a public
school employer to engage in certain specified conduct which is
considered violative of rights vested in employees and employee
organizations. Section 3540.1(k) defines public school
employer as "the governing board of a school district, a school
district, a county board of education, or a county
superintendent of schools. " Thus, to sustain a charge against
the Antelope Valley Community College District Board of
Trustees it would be necessary to attribute the actions of the
designees, and possibly those of Dr. Stine, to the trustees.
The primary questions raised in this case therefore are:
8
(4) 	The 	hearing 	officer's 	conclusion 	that
classified 	employees 	had 	gone 	without 	an 	increase 	for
a 	long 	time 	is 	not 	supported 	by 	the 	evidence.
(5) 	The 	hearing 	officer 	erred 	in 	referring 	to 	a
stipulation 	between 	the 	District 	and 	CSEA which 	was
presented 	in 	the 	representation 	hearing 	held 	after 	the
conclusion 	of 	the 	unfair 	practice 	hearing 	and 	which
established 	that 	the 	designees 	were 	management,
confidential 	and 	supervisory 	employees.
CSEA 	filed 	exceptions 	to 	the 	dismissal 	of 	that 	portion 	of
its 	charge 	which 	alleges 	that 	Dr. 	Stine's 	conduct 	was 	in
violation 	of 	section 	3543.5(a) 	and 	(b) 	and 	to 	that 	portion 	of
the 	proposed 	remedy 	which 	requires 	posting 	of 	a 	notice 	of
violation 	on 	District 	bulletin 	boards. 	CSEA 	urges 	that 	Dr.
Stine 	read 	such 	notice 	to 	all 	classified 	employees.
DISCUSSION
Section 	3543.5 	of 	the 	EERA makes 	it 	unlawful 	for 	a 	public
school 	employer 	to 	engage 	in 	certain 	specified 	conduct 	which 	is
considered 	violative 	of 	rights 	vested 	in 	employees 	and 	employee
organizations. 	Section 	3540.l(k) 	defines 	public 	school
employer 	as 	"the 	governing 	board 	of 	a 	school 	district, 	a 	school
district, 	a 	county 	board 	of 	education, 	or 	a 	county
superintendent 	of 	schools." 	Thus, 	to 	sustain 	a 	charge 	against
the 	Antelope 	Valley 	Community 	College 	District 	Board 	of
Trustees 	it 	would 	be 	necessary 	to 	attribute 	the 	actions 	of 	the
designees, 	and 	possibly 	those 	of 	Dr. 	Stine, 	to 	the 	trustees.
The 	primary 	questions 	raised 	in 	this 	case 	therefore 	are:
8

(1) May the designees' actions be attributed to the
board of trustees?
(2) If so, were those actions unlawful under the EERA
in that they violated subsections (a) , (b) or (d) of
section 3543.5?
(3) Were Dr. Stine's actions unlawful in that they
violated subsections (a) , (b) or (d) of section 3543.5?
(4) If so, are they attributable to the trustees?
The agency authority
The designees were identified as managerial and supervisory
by official act of the board of trustees after the request for
recognition had been filed by CSEA. The hearing officer stated
that they "were in fact clothed in the authority of supervisors
or management . 	. Such employees do, indeed, act on apparent
authority of the District."
The law of agency has been consistently applied to the
field of labor relations in the private sector, expressly to
hold employers accountable for the acts of supervisors and
management whether or not such acts are authorized by the
employer. The Supreme Court aptly summarized this principle in
International Association of Machinists v. NLRB (1940) 311 U.s.
72:
The employer, however, may be held to have
assisted the formation of a union even
though the acts of so-called agents were not
expressly authorized or might not be
attributable to him on strict application of
the rules of respondent superior. We are
dealing here not with private rights
[Citation. ] nor with technical concepts
pertinent to an employer's legal
(1)
	May
	the
	designees' 	actions
	be
	attributed 	to
	the
board
	of
	trustees?
(2)
	If
	so,
	were
	those
	actions
	unlawful
	under
	the
	EERA
in
	that
	they
	violated
	subsections
	(a},
	(b)
	or
	(d)
	of
section
	3543.5?
(3) 	Were
	Dr.
	Stine's
	actions
	unlawful
	in
	that
	they
violated
	subsections
	(a),
	(b}
	or
	(d)
	of
	section
	3543.5?
(4)
	If
	so, 	are
	they
	attributable
	to
	the
	trustees?
The
	agency
	authority
The
	designees
	were
	identified
	as 	managerial
	and
	supervisory
by
	official
	act
	of
	the
	board
	of
	trustees 	after
	the
	request
	for
recognition
	had
	been
	filed
	by
	CSEA. 	The
	hearing
	officer
	stated
that
	they
	"were
	in
	fact
	clothed 	in 	the
	authority
	of
	supervisors
or
	management
	...
	Such
	employees 	do,
	indeed,
	act
	on
	apparent
authority 	of 	the
	District."
The
	law
	of
	agency 	has 	been
	consistently
	applied 	to 	the
field
	of 	labor
	relations
	in 	the
	private 	sector, 	expressly 	to
hold 	employers
	accountable 	for 	the
	acts 	of 	supervisors
	and
management
	whether 	or 	not
	such
	acts 	are 	authorized
	by
	the
employer.
	The 	Supreme
	Court
	aptly
	summarized
	this 	principle
	in
International
	Association 	of 	Machinists 	v.
	NLRB
	(1940) 	311 	U.S.
72: 
The
	employer, 	however, 	may 	be
	held
	to
	have
assisted
	the 	formation 	of
	a
	union 	even
though 	the 	acts 	of 	so-called 	agents
	were
	not
expressly 	authorized 	or 	might 	not
	be
attributable 	to
	him 	on
	strict
	application 	of
the 	rules 	of 	respondent 	superior.
	We
	are
dealing 	here 	not 	with 	private 	rights
[Citation.]
	nor 	with 	technical 	concepts
pertinent 	to
	an 	employer's 	legal
9

responsibility to third persons for acts of
his servants, but with a clear legislative
policy to free the collective bargaining
process from all taint of an employer's
compulsion, domination, or influence. 	The
existence of that interference must be
determined by careful scrutiny of all
factors, often subtle, which restrain the
employees' choice and for which the employer
may fairly be said to be responsible. 	Thus
where the employees have just cause to
believe that solicitors professedly for a
labor organization were acting for and on
behalf of the management, the Board would be
justified in concluding that they did not
have the complete and unhampered freedom of
choice which the Act contemplates. . . .
In 1947, Congress added sections 2 (2) and 2 (13) to the
National Labor Relations Act "declaring, in substance, that
usual principles of vicarious liability under the law are to be
applied to both union and employer. "2 Cong ess expressly
included in its definition of "employer" in section 2 (2) "any
person acting as an agent of the employer" and explicitly
stated in section 2(13) that whether the acts were actually
authorized or subsequently ratified would not be determinative
as to whether any person is acting as the agent of another.
In the subsequent application of section 2 (2) and 2 (13) ,
the courts and the NLRB have held that the question of agency
authority should be resolved by determining whether the
employees had just cause to believe the supervisor or manager
was acting with the apparent authority of the employer. (See
J.S. Abercrombie Co. (1949) 83 NLRB 524 [24 LRRM 1115], (enf.
5th cir. 1950) [180 F. 2d 578].) Thus, in Local 636, Plumbers
V. NLRB (C.A. , D. C. 1961) 287 F. 2d 354 [47 LRRM 2457] , an
Gorman, Basic Text on Labor Law (1976).
10
responsibility 	to 	third 	persons 	for 	acts 	of
his 	servants, 	but 	with 	a 	clear 	legislative
policy 	to 	free 	the 	collective 	bargaining
process 	from 	all 	taint 	of 	an 	employer's
compulsion, 	domination, 	or 	influence. 	The
existence 	of 	that 	interference 	must 	be
determined 	by 	careful 	scrutiny 	of 	all
factors, 	often 	subtle, 	which 	restrain 	the
employees' 	choice 	and 	for 	which 	the 	employer
may 	fairly 	be 	said 	to 	be 	responsible. 	Thus
where 	the 	employees 	have 	just 	cause 	to
believe 	that 	solicitors 	professedly 	for 	a
labor 	organization 	were 	acting 	for 	and 	on
behalf 	of 	the 	management, 	the 	Board 	would 	be
justified 	in 	concluding 	that 	they 	did 	not
have 	the 	complete 	and 	unhampered 	freedom 	of
choice 	which 	the 	Act 	contemplates ..•.
In 	1947, 	Congress 	added 	sections 	2(2) 	and 	2(13) 	to 	the
National 	Labor 	Relations 	Act 	"declaring, 	in 	substance, 	that
usual 	principles 	of 	vicarious 	liability 	under 	the 	law 	are 	to 	be
applied 	to 	both 	union 	and 	employer."2r 	Congress 	expressly
included 	in 	its 	definition 	of 	"employer" 	in 	section 	2(2) 	"any
person 	acting 	as 	an 	agent 	of 	the 	employer" 	and 	explicitly
stated 	in 	section 	2(13) 	that 	whether 	the 	acts 	were 	actually
authorized 	or 	subsequently 	ratified 	would 	not 	be 	determinative
as 	to 	whether 	any 	person 	is 	acting 	as 	the 	agent 	of 	another.
In 	the 	subsequent 	application 	of 	section 	2(2) 	and 	2(13),
the 	courts 	and 	the 	NLRB 	have 	held 	that 	the 	question 	of 	agency
authority 	should 	be 	resolved 	by 	determining 	whether 	the
employees 	had 	just 	cause 	to 	believe 	the 	supervisor 	or 	manager
was 	acting 	with 	the 	apparent 	authority 	of 	the 	employer. 	(See
J.S. 	Abercrombie 	Co. 	(1949) 	83 	NLRB 	524 	[24 	LRRM 	1115], 	(enf.
5th 	cir. 	1950) 	[180 	F.2d 	578] .) 	Thus, 	in 	Local 	636, 	Plumbers
v. 	NLRB 	(C.A., 	D.C. 	1961) 	287 	F.2d 	354 	[47 	LRRM 	2457], 	an
22Gorman, 	Basic 	Text 	on 	Labor 	Law 	(1976).
10

employer was held liable for interfering in union affairs
because of his supervisor's activities, even though the actions
were not expressly authorized or ratified by the employer.
Likewise, in Broyhill Furniture Co. (1951) 94 NLRB 1452 [28
LRRM 1211] the unlawful actions of supervisors were attributed
to the employer, even when supervisors were instructed to
refrain from interfering with the employees' organizing
activities, predicated on the employer's failure to inform the
employees of the restrictions placed on the supervisors.
Under California common law, the acts of an agent within
his actual or apparent authority are binding on the principal.
Apparent authority results from conduct of the principal upon
which third persons rely in dealing with agents. The liability
of the principal attaches where such reliance was reasonable
and results in a change in position by the third party.
Although the EERA does not specifically include "agent" in
the definition of employer, it is concluded that historically
accepted labor relations principles of agency authority and
principal liability must be applied to cases arising under the
EERA.
There can be no dispute that a school district is "managed"
through a hierarchy of officials and officers ranging from the
governing body through the employed staff whose function it is
to effectuate its policies and programs. That the Legislature
contemplated this chain of authority is indicated by its
3I do not find it necessary to fully explicate the
California law of agency. Reference is made to Witkin, Summary
of California Law (8th edition 1973) pp. 635 et seq.
11
employer 	was 	held 	liable 	for 	interfering 	in 	union 	affairs
because 	of 	his 	supervisor's 	activities, 	even 	though 	the 	actions
were 	not 	expressly 	authorized 	or 	ratified 	by 	the 	employer.
Likewise, 	in 	Broyhill 	Furniture 	Co. 	( 19 51) 	9 4 NLRB 	145 2 	[ 28
LRRM 	1211] 	the 	unlawful 	actions 	of 	supervisors 	were 	attributed
to 	the 	employer, 	even 	when 	supervisors 	were 	instructed 	to
refrain 	from 	interfering 	with 	the 	employees' 	organizing
activities, 	predicated 	on 	the 	employer's 	failure 	to 	inform 	the
employees 	of 	the 	restrictions 	placed 	on 	the 	supervisors.
Under 	California 	common 	law,3 	the 	acts 	of 	an 	agent 	within
his 	actual 	or 	apparent 	authority 	are 	binding 	on 	the 	principal.
Apparent 	authority 	results 	from 	conduct 	of 	the 	principal 	upon
which 	third 	persons 	rely 	in 	dealing 	with 	agents. 	The 	liability
of 	the 	principal 	attaches 	where 	such 	reliance 	was 	reasonable
and 	results 	in 	a 	change 	in 	position 	by 	the 	third 	party.
Although 	the 	EERA does 	not 	specifically 	include 	"agent" 	in
the 	definition 	of 	employer, 	it 	is 	concluded 	that 	historically
accepted 	labor 	relations 	principles 	of 	agency 	authority 	and
principal 	liability 	must 	be 	applied 	to 	cases 	arising 	under 	the
EERA.
There 	can 	be 	no 	dispute 	that 	a 	school 	district 	is 	"managed"
through 	a 	hierarchy 	of 	officials 	and 	officers 	ranging 	from 	the
governing 	body 	through 	the 	employed 	staff 	whose 	function 	it 	is
to 	effectuate 	its 	policies 	and 	programs. 	That 	the 	Legislature
contemplated 	this 	chain 	of 	authority 	is 	indicated 	by 	its
3r 	do 	not 	find 	it 	necessary 	to 	fully 	explicate 	the
California 	law 	of 	agency. 	Reference 	is 	made 	to 	Witkin, 	Summary
of 	California 	Law 	(8th 	edition 	1973) 	pp. 	635 	et 	seq.
11

reference to representatives of the public school employer
found in sections 3543.34 and 	5485 of th 	EERA. More to
the point, to exclude principles of agency from interpretation
of the EERA would not only ignore long-established principles
of law, but open the door to permitting employers (school
boards) to engage in unfair practices through the actions of
their administrators and subordinates but escape liability
through an artificially narrow interpretation of the word
"employer".
4Government Code section 3543.3 states:
A public school employer or such
representatives as it may designate who may,
but need not be, subject to either
certification requirements or requirements
for classified employees set forth in the
Education Code, shall meet and negotiate
with and only with representatives of
employee organizations selected as exclusive
representatives of appropriate units upon
request with regard to matters within the
scope of representation.
e
Government Code section 3548 states in pertinent part:
. . The mediator shall meet forthwith with
the parties or their representatives, either
jointly or separately, and shall take such
other steps as he may deem appropriate in
order to persuade the parties to resolve
their differences and effect a mutually
acceptable agreement. . ..
12
reference 	to 	representatives 	of 	the 	public 	school 	employer
found 	in 	sections 	3543.343 and 	35485 	of 	the 	EERA. 	More 	to
the 	point, 	to 	exclude 	principles 	of 	agency 	from 	interpretation
of 	the 	EERA would 	not 	only 	ignore 	long-established 	principles
of 	law, 	but 	open 	the 	door 	to 	permitting 	employers 	(school
boards) 	to 	engage 	in 	unfair 	practices 	through 	the 	actions 	of
their 	administrators 	and 	subordinates 	but 	escape 	liability
through 	an 	artificially 	narrow 	interpretation 	of 	the 	word
"employer".
4Government 	Code 	section 	3543.3 	states:
A public 	school 	employer 	or 	such
representatives 	as 	it 	may 	designate 	who 	may,
but 	need 	not 	be, 	subject 	to 	either
certification 	requirements 	or 	requirements
for 	classified 	employees 	set 	forth 	in 	the
Education 	Code, 	shall 	meet 	and 	negotiate
with 	and 	only 	with 	representatives 	of
employee 	organizations 	selected 	as 	exclusive
representatives 	of 	appropriate 	units 	upon
request 	with 	regard 	to 	matters 	within 	the
scope 	of 	representation.
55Government 	Code 	section 	3548 	states 	in 	pertinent 	part:
... The 	mediator 	shall 	meet 	forthwith 	with
the 	parties 	or 	their 	representatives, 	either
jointly 	or 	separately, 	and 	shall 	take 	such
other 	steps 	as 	he 	may 	deem appropriate 	in
order 	to 	persuade 	the 	parties 	to 	resolve
their 	differences 	and 	effect 	a 	mutually
acceptable 	agreement.
12

The facts in this case support a finding that the
designees' actions can be attributed to the employer. 	The
first open meeting of the designees, on March 24, was held at a
campus facility approved for such use by a District
representative for receiving negotiating proposals.
Subsequently, the "secret ballot" on unit preference was typed
by Dr. Stine's secretary. The designees disseminated bulletins
to all classified employees through campus facilities. They
also circulated the petition to withdraw support for CSEA
though the means of distribution is not apparent in the
record.
CSEA filed its unfair charge on April 22, 1977. Dr. Stine
claims he first became aware of the matter through this
charge. Yet, sometime after that, the designees formed their
negotiating committee and presented their proposal to the board
of trustees which acted favorably upon them. At the very
least, after the filing of the charge, Dr. Stine was in a
position to know that his designees were taking certain actions
which were complained of as unlawful and therefore had the time
to disavow those actions as authorized by himself or by the
board of trustees. 	Instead, the District's only response to
all that was going on was to file a charge against CSEA,
alleging an unlawful demand for recognition.
13
The 	facts 	in 	this 	case 	support 	a 	finding 	that 	the
designees' 	actions 	can 	be 	attributed 	to 	the 	employer. 	The
first 	open meeting 	of 	the 	designees, 	on 	March 	24, 	was 	held 	at 	a
campus 	facility 	approved 	for 	such 	use 	by 	a 	District
representative 	for 	receiving 	negotiating 	proposals.
Subsequently, 	the 	"secret 	ballot" 	on 	unit 	preference 	was 	typed
by 	Dr. 	Stine's 	secretary. 	The 	designees 	disseminated 	bulletins
to 	all 	classified 	employees 	through 	campus 	facilities. 	They
also 	circulated 	the 	petition 	to 	withdraw 	support 	for 	CSEA
though 	the 	means 	of 	distribution 	is 	not 	apparent 	in 	the
record.
CSEA 	filed 	its 	unfair 	charge 	on 	April 	22, 	1977. 	Dr. 	Stine
claims 	he 	first 	became 	aware 	of 	the 	matter 	through 	this
charge. 	Yet, 	sometime 	after 	that, 	the 	designees 	formed 	their
negotiating 	committee 	and 	presented 	their 	proposal 	to 	the 	board
of 	trustees 	which 	acted 	favorably 	upon 	them. 	At 	the 	very
least, 	after 	the 	filing 	of 	the 	charge, 	Dr. 	Stine 	was 	in 	a
position 	to 	know 	that 	his 	designees 	were 	taking 	certain 	actions
which 	were 	complained 	of 	as 	unlawful 	and 	therefore 	had 	the 	time
to 	disavow 	those 	actions 	as 	authorized 	by 	himself 	or 	by 	the
board 	of 	trustees. 	Instead, 	the 	District's 	only 	response 	to
all 	that 	was 	going 	on 	was 	to 	file 	a 	charge 	against 	CSEA,
alleging 	an 	unlawful 	demand 	for 	recognition.
13

Three sets of facts are considered in determining the
District's responsibility for the designees actions: (1) The
spectrum of actions engaged in by the designees which go well
beyond the statutory right of self-organization afforded
supervisory personnel; (2) The open and notorious manner in
which those actions were taken; and (3) The fact that the
District at no time, and particularly after the CSEA charge was
filed, did anything to disabuse the wide-spread impression
among classified employees that the designees indeed spoke for
the District, which it could have done either by withdrawing
the designations, by publicly acknowledging that the status of
the designees was in dispute and that as a consequence of that
dispute their actions were not authorized or ratified by the
District, or by expressly disassociating itself from those
actions in any manner. In conjunction with the District's
silence the record fails to indicate that the designees at any
time indicated any disagreement with their designations. They
neither directly nor indirectly informed the classified
employees that they believed themselves to be nonmanagerial or
nonsupervisory employees.
The District asserts that its knowledge of the EERA
provisions protecting the self-organizing rights of supervisors
mandated it to adopt a "hands off" policy regarding the
designees' actions, because such actions arguably fell within
14
Three 	sets 	of 	facts 	are 	considered 	in 	determining 	the
District's 	responsibility 	for 	the 	designees 	actions: 	(1) 	The
spectrum of 	actions 	engaged 	in 	by 	the 	designees 	which 	go 	well
beyond 	the 	statutory 	right 	of 	self-organization 	afforded
supervisory 	personnel; 	(2) 	The 	open 	and 	notorious 	manner 	in
which 	those 	actions 	were 	taken; 	and 	(3) 	The 	fact 	that 	the
District 	at 	no 	time, 	and 	particularly 	after 	the 	CSEA 	charge 	was
filed, 	did 	anything 	to 	disabuse 	the 	wide-spread 	impression
among 	classified 	employees 	that 	the 	designees 	indeed 	spoke 	for
the 	District, 	which 	it 	could 	have 	done 	either 	by 	withdrawing
the 	designations, 	by 	publicly 	acknowledging 	that 	the 	status 	of
the 	designees 	was 	in 	dispute 	and 	that 	as 	a 	consequence 	of 	that
dispute 	their 	actions 	were 	not 	authorized 	or 	ratified 	by 	the
District, 	or 	by 	expressly 	disassociating 	itself 	from 	those
actions 	in 	any 	manner. 	In 	conjunction 	with 	the 	District's
silence 	the 	record 	fails 	to 	indicate 	that 	the 	designees 	at 	any
time 	indicated 	any 	disagreement 	with 	their 	designations. 	They
neither 	directly 	nor 	indirectly 	informed 	the 	classified
employees 	that 	they 	believed 	themselves 	to 	be 	nonmanagerial 	or
nonsupervisory 	employees.
The 	District 	asserts 	that 	its 	knowledge 	of 	the 	EERA
provisions 	protecting 	the 	self-organizing 	rights 	of 	supervisors
mandated 	it 	to 	adopt 	a 	"hands 	off" 	policy 	regarding 	the
designees' 	actions, 	because 	such 	actions 	arguably 	fell 	within
14

the permissible parameters of the designees' lawful organizing
activities. It is true that supervisors enjoy the right of
self-organization under the EERA, limited by the requirement
that they not be represented by an organization which
represents nonsupervisory employees. However, the issue is
not whether the designees were entitled to organize and to
"make mistakes" free from employer interference, but whether
the employer can direct its publicly designated agents to
commit actions arguably unlawful under the EERA, and whether
such actions can be properly attributed to the employer. While
a school employer is admittedly obligated not to interfere with
the self-organizing activities of its supervisory personnel, it
cannot be permitted to look on in silence while those it has
designated as managers and supervisors engage in such unlawful
activity.
The designees' activities were not only directed toward
supervisory employees, but included organizing activities among
Government Code section 3545 (b) (2) states:	6
In all cases:
(2) A negotiating unit of supervisory
employees shall not be appropriate unless it
includes all supervisory employees employed
by the district and shall not be represented
by the same employee organization as
employees whom the supervisory employees
supervise.
15
the
	permissible
	parameters
	of
	the
	designees'
	lawful
	organizing
activities.
	It
	is
	true
	that
	supervisors
	enjoy 	the
	right
	of
self-organization
	under
	the
	EERA,
	limited
	by
	the
	requirement
that
	they 	not
	be
	represented
	by
	an
	organization
	which
represents
	nonsupervisory
	employees.6	
However,
	the
	issue
	is
not
	whether
	the 	designees
	were
	entitled
	to 	organize
	and
	to
"make
	mistakes"
	free
	from
	employer
	interference,
	but
	whether
the
	employer
	can
	direct
	its
	publicly
	designated 	agents
	to
commit
	actions
	arguably 	unlawful
	under
	the
	EERA,
	and
	whether
such
	actions
	can
	be
	properly
	attributed
	to 	the
	employer.
	While
a
	school
	employer
	is
	admittedly 	obligated
	not
	to
	interfere
	with
the
	self-organizing
	activities
	of
	its
	supervisory
	personnel,
	it
cannot
	be
	permitted 	to
	look
	on
	in
	silence
	while 	those
	it
	has
designated
	as
	managers
	and
	supervisors
	engage
	in
	such
	unlawful
activity.
The
	designees'
	activities
	were
	not 	only
	directed
	toward
supervisory
	employees,
	but 	included 	organizing
	activities
	among
6Government 	Code
	section
	3545(b)
(2)
	states:
In
	all
	cases:
• 	0 	$ 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
(2) 	A
negotiating 	unit 	of 	supervisory
employees
	shall
	not
	be
	appropriate 	unless
	it
includes
	all
	supervisory
	employees 	employedby
	the
	district
	and
	shall
	not
	be
	represented
by
	the
	same 	employee
	organization 	asemployees
	whom
	the 	supervisory
	employees
supervise.
15

nonsupervisory, classified employees and the eventual
representation of those employees. This was done with the
sanction and approval of the board of trustees, manifested by
its favorable action on the designee committee proposals.
In summary, by its acts of designation, its silence during
the long period of activities conducted by the designees, its
cooperation in those activities by affording the designees the
use of District facilities (thus affording the District ample
notice of the activities), by its acceptance of proposals on
behalf of classified employees and by its favorable action on
those proposals, and by creating the impression that the
designees spoke for the District and/or acted with the
District's approval, the District's actions justify a finding
that the designees both in fact and from the point of view of
the employees did act as agents of the District, and that the
District is therefore liable for those actions.
The unlawfulness of the designees' conduct
The designees' actions considered in their totality
violated two subsections of the EERA.
The right of self-organization provided to employees by
section 3543 includes the right to join and participate in an
employee organization of one's choice for the purpose of
representation on employer-employee relations. That right is
violated when the employer's acts interfere or tend to
interfere with its exercise and the employer is unable to
justify its actions by proving operational necessity. 	(See
Carlsbad Unified School District (1/30/79) PERB Decision No.
89.) In Carlsbad, PERB further decided that the charge will be
16
nonsupervisory, 	classified 	employees 	and 	the 	eventual
representation 	of 	those 	employees. 	This 	was 	done 	with 	the
sanction 	and 	approval 	of 	the 	board 	of 	trustees, 	manifested 	by
its 	favorable 	action 	on 	the 	designee 	committee 	proposals.
In 	summary, 	by 	its 	acts 	of 	designation, 	its 	silence 	during
the 	long 	period 	of 	activities 	conducted 	by 	the 	designees, 	its
cooperation 	in 	those 	activities 	by 	affording 	the 	designees 	the
use 	of 	District 	facilities 	(thus 	affording 	the 	District 	ample
notice 	of 	the 	activities), 	by 	its 	acceptance 	of 	proposals 	on
behalf 	of 	classified 	employees 	and 	by 	its 	favorable 	action 	on
those 	proposals, 	and 	by 	creating 	the 	impression 	that 	the
designees 	spoke 	for 	the 	District 	and/or 	acted 	with 	the
District's 	approval, 	the 	District's 	actions 	justify 	a 	finding
that 	the 	designees 	both 	in 	fact 	and 	from 	the 	point 	of 	view 	of
the 	employees 	did 	act 	as 	agents 	of 	the 	District, 	and 	that 	the
District 	is 	therefore 	liable 	for 	those 	actions.
The 	unlawfulness 	of 	the 	designees' 	conduct
The 	designees' 	actions 	considered 	in 	their 	totality
violated 	two 	subsections 	of 	the 	EERA.
The 	right 	of 	self-organization 	provided 	to 	employees 	by
section 	3543 	includes 	the 	right 	to 	join 	and 	participate 	in 	an
employee 	organization 	of 	one's 	choice 	for 	the 	purpose 	of
representation 	on 	employer-employee 	relations. 	That 	right 	is
violated 	when 	the 	employer's 	acts 	interfere 	or 	tend 	to
interfere 	with 	its 	exercise 	and 	the 	employer 	is 	unable 	to
justify 	its 	actions 	by 	proving 	operational 	necessity. 	(See
Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB 	Decision 	No.
89.) 	In 	Carlsbad, 	PERB 	further 	decided 	that 	the 	charge 	will 	be
16

sustained whenever it is proven that but for the exercise of
those rights, the employer would not have acted. Here, the
record is replete with evidence that the designees did indeed
act because of the organizing activities on behalf of CSEA.
They met, and they planned and executed a program which
eventually resulted in substantial loss of CSEA support. 	They
prepared a ballot calling for a yes-no vote for CSEA which was
typed by Dr. Stine's secretary although eventually the ballot
only solicited an employee preference for an organization other
than CSEA. They announced the results of that balloting to the
classified employees through school facilities and circulated a
petition to remove the employees' names from the CSEA proof of
interest. They formed a committee to formulate salary and
fringe proposals on behalf of all classified employees and
eventually submitted their proposals to the board of trustees
which acted favorably upon them. That package included a
salary concept long proposed unsuccessfully by CSEA. At no
time did they ever petition for a unit exclusively of
supervisors.
In Carlsbad Unified School District, supra, PERB Decision
No. 89, the Board also held that unlawful motivation or purpose
may be inferred from the entire record. As previously
indicated, the District relies on a claimed necessity of a
hands-off policy. That claim has already been rejected.
Accordingly, it is appropriate to find that the actions of the
designees are attributable to the District and not only
interfered with the employees' rights to self-organization
provided by section 3543.5 (a) of the EERA, but were motivated
17
sustained
	whenever
	it
	is
	proven
	that
	but 	for 	the
	exercise 	of
those
	rights,
	the
	employer
	would
	not
	have
	acted.
	Here,
	the
record
	is 	replete
	with 	evidence
	that
	the 	designees 	did 	indeed
act
	because
	of
	the 	organizing
	activities
	on
	behalf 	of
	CSEA.
They
	met,
	and
	they 	planned
	and
	executed
	a
	program 	which
eventually
	resulted
	in
	substantial
	loss 	of
	CSEA
	support.
	They
prepared
	a
	ballot 	calling
	for
	a
	yes-no 	vote 	for
	CSEA
	which
	was
typed
	by
	Dr.
	Stine's
	secretary
	although
	eventually
	the
	ballot
only
	solicited
	an 	employee
	preference 	for
	an
	organization
	other
'than
	CSEA. 	They
	announced
	the
	results
	of
	that 	balloting 	to
	the
classified
	employees
	through
	school
	facilities
	and
	circulated
	a
petition
	to
	remove
	the
	employees'
	names 	from
	the
	CSEA
	proof
	of
interest.
	They 	formed 	a
	committee
	to
	formulate
	salary
	and
fringe 	proposals
	on
	behalf 	of
	all
	classified
	employees
	and
eventually
	submitted
	their
	proposals 	to 	the
	board
	of
	trustees
which
	acted 	favorably
	upon 	them.
	That 	package
	included
	a
salary
	concept 	long 	proposed
	unsuccessfully
	by CSEA.
	At 	no
time
	did 	they 	ever
	petition
	for
	a
	unit 	exclusively 	of
supervisors.
In 	Carlsbad 	Unified 	School
	District,
	~upra,
	PERB
	Decision
No.
	89,
	the
	Board
	also
	held
	that
	unlawful 	motivation 	or 	purpose
may 	be
	inferred
	from
	the
	entire
	record.
	As
	previously
indicated, 	the
	District 	relies
	on 	a
	claimed
	necessity 	of
	a
hands-off 	policy.
	That 	claim 	has
	already
	been
	rejected.
Accordingly,
	it
	is 	appropriate 	to 	find 	that 	the 	actions 	of 	the
designees 	are 	attributable 	to 	the
	District
	and 	not 	only
interfered 	with 	the 	employees' 	rights 	to 	self-organization
provided 	by
	section 	3543.S(a) 	of 	the
	EERA,
	but 	were 	motivated17

by an anti-CSEA animus. For these reasons, the hearing
officer's dismissal of the 3543.5 (a) charge should be reversed.
Little more need be said to demonstrate that the District,
by these acts, also violated section 3543.5 (d) . The committee
formed by the designees is an employee organization within the
meaning of the EERA. An employee organization is defined in
section 3540. 1(d) as:
. . . any organization which includes employees
of a public school employer and which has as
one of its primary purposes representing
such employees in their relations with that
public school employer. 	" Employee
organization" shall also include any person
such an organization authorizes to act on
its behalf.
At the meeting of March 24, the designees formed a "unit"
which would be loosely structured, entail no dues, hold no
election, have no constitution or bylaws, and remain in effect
as long as the employees were satisfied with their services. 	A
document expressing support for this structure was circulated
among the classified employees and eventually signed by 52 of
them. Later, the designees formed a committee to prepare and
present wage and fringe proposals on behalf of all classified
employees. These were eventually acted upon favorably by the
board of trustees.
While the word "unit" normally means a representation unit
determined either by the employer and the employee organization
through voluntary recognition or the appropriate unit
established by PERB, it is clear that in this case, the
designees used the term intentionally or otherwise to mean an
employee organization of classified employees. That is
demonstrated by the reference to dues, bylaws, elected officers
18
by
	an
	anti-CSEA
	animus.
	For
	these 	reasons, 	the 	hearing
officer's
	dismissal
	of
	the
	3543.S(a) 	charge
	should
	be
	reversed.
Little
	more
	need
	be
	said 	to
	demonstrate
	that
	the
	District,
by
	these
	acts,
	also 	violated 	section
	3543.S(d).
	The
	committee
formed
	by
	the 	designees
	is
	an 	employee
	organization 	within
	the
meaning
	of 	the
	EERA.
	An
	employee
	organization
	is
	defined
	in
section
	3540.l(d)
	as:
...
any
	organization
	which
	includes
	employees
of
	a
	public
	school
	employer
	and 	which
	has
	as
one
	of
	its
	primary 	purposes
	representing
such 	employees
	in
	their 	relations
	with
	that
public
	school
	employer.
	"Employee
organization"
	shall
	also
	include
	any
	person
such
	an
	organization 	authorizes 	to
	act
	on
its
	behalf.
At
	the
	meeting
	of
	March
	24,
	the 	designees
	formed 	a
	"unit"
which 	would 	be
	loosely
	structured,
	entail
	no
	dues, 	hold
	no
election,
	have
	no
	constitution
	or
	bylaws,
	and
	remain
	in
	effect
as 	long 	as 	the
	employees
	were
	satisfied
	with
	their 	services.
	A
document
	expressing 	support 	for
	this 	structure
	was
	circulated
among
	the
	classified
	employees
	and
	eventually
	signed
	by 	52
	of
them.
	Later,
	the 	designees
	formed 	a
	committee
	to 	prepare
	and
present
	wage 	and
	fringe 	proposals
	on
	behalf 	of
	all
	classified
employees. 	These 	were
	eventually 	acted
	upon
	favorably 	by 	the
board 	of
	trustees.
While
	the
	word
	"unit"
	normally
	means 	a
	representation 	unit
determined
	either
	by
	the 	employer 	and
	the
	employee
	organization
through 	voluntary 	recognition 	or 	the 	appropriate 	unit
established
	by 	PERB,
	it
	is 	clear 	that 	in
	this 	case, 	the
designees 	used 	the 	term
	intentionally 	or 	otherwise 	to
	mean 	an
employee 	organization 	of 	classified
	employees. 	That
	is
demonstrated 	by 	the 	reference 	to 	dues, 	bylaws, 	elected 	officers
18

and similar matters. For that reason, the word "unit" as
employed by the designees fits the EERA definition of employee
organization. Further, the committee formed by the designees
to represent classified employees in matters relating to their
terms and conditions of employment meets that definition. 7
Since the plan of action surrounding the formation of the unit
and the designee committee included encouraging employees to
support the designees' organization in preference to CSEA, that
plan was in patent violation of the last injunction found in
section 3543.5 (d) , which reads:
It shall be unlawful for public school
employer to
(d) Dominate or interfere with the
formation or administration of any employee
organization or contribute financial or
other support to it, or any way encourage
employees to join any organization in
preference to another. 	[Emphasis added. ]
In addition, the pervasive involvement by the designees in
organizing and administering an employee organization
purporting to represent rank and file classified employees
clearly constitutes domination and interference with the
formation and administration of an employee organization, in
violation of the first prohibition in section 3543.5 (d) .
7see, e.g., North American Rockwell Corp. (1971) 191 NLRB
833 [77 LRRM 1634]; Litton Industries Inc., Erie Marine, Inc.
Div. (1972) 196 NLRB 248 [78 LRRM 1041]; Lowen Co. , Inc. (1973)
203 NLRB 449 [83 LRRM 114] ; Eastern Industries (1975) 217 NLRB
No. 118 [89 LRRM 1134]; Rensselaer Polytechnic Institute (1975)
219 NLRB No. 85 [89 LRRM 1879] ; Arkay Packaging Corp. (1975)
221 NLRB No. 10 [90 LRRM 1728].
19
and 	similar 	matters. 	For 	that 	reason, 	the 	word 	"unit" 	as
employed 	by 	the 	designees 	fits 	the 	EERA 	definition 	of 	employee
organization. 	Further, 	the 	committee 	formed 	by 	the 	designees
to 	represent 	classified 	employees 	in 	matters 	relating 	to 	their
terms 	and 	conditions 	of 	employment 	meets 	that 	definition.7
Since 	the 	plan 	of 	action 	surrounding 	the 	formation 	of 	the 	unit
and 	the 	designee 	committee 	included 	encouraging 	employees 	to
support 	the 	designees' 	organization 	in 	preference 	to 	CSEA, 	that
plan 	was 	in 	patent 	violation 	of 	the 	last 	injunction 	found 	in
section 	3543.5(d), 	which 	reads:
It 	shall 	be 	unlawful 	for 	public 	school
employer 	to
(d) 	Dominate 	or 	interfere 	with 	the
formation 	or 	administration 	of 	any 	employee
organization 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	any 	way 	encourage
employees 	to 	join 	any 	organization 	1n
preference 	to 	another. 	[Emphasis 	added.]
In 	addition, 	the 	pervasive 	involvement 	by 	the 	designees 	in
organizing 	and 	administering 	an 	employee 	organization
purporting 	to 	represent 	rank 	and 	file 	classified 	employees
clearly 	cons~itutes 	domination 	and 	interference 	with 	the
formation 	and 	administration 	of 	an 	employee 	organization, 	in
violation 	of 	the 	first 	prohibition 	in 	section 	3543.5(d).
7see, 	e.g., 	North 	American 	Rockwell 	Corp. 	(1971) 	191 	NLRB
833 	[77 	LRRM 	1634]; 	Litton 	Industries 	Inc., 	Erie 	Marine, 	Inc.
Div. 	(1972) 	196 	NLRB 	248 	[78 	LRRM 	1041]; 	Lowen 	Co., 	Inc. 	(1973)
203 	NLRB 	449 	[83 	LRRM 	114]; 	Eastern 	Industries 	(1975) 	217 	NLRB
No. 	118 	[89 	LRRM 	1134]; 	Rensselaer 	Pol 	technic 	Institute 	(1975)
219 	NLRB 	No. 	85 	[89 	LRRM 	1 	Ar 	ay 	Pac 	aging 	Corp. 	975)
221 	NLRB 	No. 	10 	[90 	LRRM 	1728].
19

CSEA's charge also alleged a violation of section
3543 .5 (b) . 	The hearing officer did not address this portion of
the charge, but, in its appeal, CSEA has urged a favorable
finding. I do not find that the District violated section
3543.5 (b) .
Dr . Stine's conduct
In considering the nature of Dr. Stine's actions it is
necessary to recognize his relationship both to the board of
trustees and to the designees. As the superintendent and
president of the community college district, Dr. Stine is the
District's chief executive officer, responsible for day-to-day
management of the District under the supervision of the board
of trustees. Absent some clearly negating factor, the college
president, as the chief administrator, is ultimately
accountable for the actions of his subordinates. And, just as
the board of trustees cannot avoid responsibility for the
actions of employees on whom it has draped the cloak of
managerial authority, so Dr. Stine cannot escape responsibility
for his own actions. The board of trustees is liable for the
designees' conduct and it is liable for the conduct of Dr.
Stine. In short, accountability for the designees' actions
flows upward through the levels of immediate supervision to the
ultimate school authority, the board of trustees.
The question nevertheless remains whether Dr. Stine's
personal involvement and statements at the March 15 meetings
20
CSEA's 	charge 	also 	alleged 	a 	violation 	of 	section
3543.S(b). 	The 	hearing 	officer 	did 	not 	address 	this 	portion 	of
the 	charge, 	but, 	in 	its 	appeal, 	CSEA 	has 	urged 	a 	favorable
finding. 	I 	do 	not 	find 	that 	the 	District 	violated 	section
3543.S(b).
Dr. 	Stine's 	conduct
In 	considering 	the 	nature 	of 	Dr. 	Stine's 	actions 	it 	is
necessary 	to 	recognize 	his 	relationship 	both 	to 	the 	board 	of
trustees 	and 	to 	the 	designees. 	As 	the 	superintendent 	and
president 	of 	the 	community 	college 	district, 	Dr. 	Stine 	is 	the
District's 	chief 	executive 	officer, 	responsible 	for 	day-to-day
management 	of 	the 	District 	under 	the 	supervision 	of 	the 	board
of 	trustees. 	Absent 	some 	clearly 	negating 	factor, 	the 	college
president, 	as 	the 	chief 	administrator, 	is 	ultimately
accountable 	for 	the 	actions 	of 	his 	subordinates. 	And, 	just 	as
the 	board 	of 	trustees 	cannot 	avoid 	responsibility 	for 	the
actions 	of 	employees 	on 	whom 	it 	has 	draped 	the 	cloak 	of
managerial 	authority, 	so 	Dr. 	Stine 	cannot 	escape 	responsibility
for 	his 	own 	actions. 	The 	board 	of 	trustees 	is 	liable 	for 	the
designees' 	conduct 	and 	it 	is 	liable 	for 	the 	conduct 	of 	Dr.
Stine. 	In 	short, 	accountability 	for 	the 	designees' 	actions
flows 	upward 	through 	the 	levels 	of 	immediate 	supervision 	to 	the
ultimate 	school 	authority, 	the 	board 	of 	trustees.
The 	question 	nevertheless 	remains 	whether 	Dr. 	Stine's
personal 	involvement 	and 	statements 	at 	the 	March 	15 	meetings
20

should be treated independently of those for which he is
responsible by virtue of the principal-agent relationship with
the designees, and, if so, whether he should be afforded the
constitutional protection under the shelter of protected speech
as the hearing officer decided.
An employer in the private sector has a constitutional
right to express opinions that are not coercive in nature.
NLRB v. Virginia Electric and Power Co. (1941) 314 U.S. 469 19
LRRM 405]. However, the court directed a remand in that case
to determine whether the employer's communications, although
noncoercive on their face, became coercive as part of a total
course of conduct in which the employer engaged. Without
reaching the question of whether the public employer is
entitled to parallel free speech protections under the First
Amendment of the Constitution, sound labor policy requires a
finding that an employer cannot use speech as a means of
violating section 3543.5 of EERA.
That the total conduct of the employer herein was
calculated to interfere with, restrain and coerce the employees
in the exercise of their organizational rights during the CSEA
campaign is amply supported by the record as a whole.
Dr. Stine's remarks at the March 15 meeting with the classified
employees cannot be separated from the ensuing conduct of the
21
should 	be 	treated 	independently 	of 	those 	for 	which 	he 	is
responsible 	by 	virtue 	of 	the 	principal-agent 	relationship 	with
the 	designees, 	and, 	if 	so, 	whether 	he 	should 	be 	afforded 	the
constitutional 	protection 	under 	the 	shelter 	of 	protected 	speech
as 	the 	hearing 	officer 	decided.
An 	employer 	in 	the 	private 	sector 	has 	a 	constitutional
right 	to 	express 	opinions 	that 	are 	not 	coercive 	in 	nature.
NLRB 	v. 	Virginia 	Electric 	and 	Power 	Co. 	(1941) 	314 	U.S. 	469 	[9
LRRM 	405]. 	However, 	the 	court 	directed 	a 	remand 	in 	that 	case
to 	determine 	whether 	the 	employer's 	communications, 	although
noncoercive 	on 	their 	face, 	became 	coercive 	as 	part 	of 	a 	total
course 	of 	conduct 	in 	which 	the 	employer 	engaged. 	Without
reaching 	the 	question 	of 	whether 	the 	public 	employer 	is
entitled 	to 	parallel 	free 	speech 	protections 	under 	the 	First
Amendment 	of 	the 	Constitution, 	sound 	labor 	policy 	requires 	a
finding 	that 	an 	employer 	cannot 	use 	speech 	as 	a 	means 	of
violating 	section 	3543.5 	of 	EERA.
That 	the 	total 	conduct 	of 	the 	employer 	herein 	was
calculated 	to 	interfere 	with, 	restrain 	and 	coerce 	the 	employees
in 	the 	exercise 	of 	their 	organizational 	rights 	during 	the 	CSEA
campaign 	is 	amply 	supported 	by 	the 	record 	as 	a 	whole.
Dr. 	Stine's 	remarks 	at 	the 	March 	15 	meeting 	with 	the 	classified
employees 	cannot 	be 	separated 	from 	the 	ensuing 	conduct 	of 	the
21

District. At that meeting he stated his preference for dealing
with all classified employees as opposed to the limited group
for which CSEA had petitioned; he expressed his doubt that a
unit could be attained for some two years, he expressed his
distaste for the EERA and he suggested the possibility that it
would be repealed. He cited the difference in the activities
of the classified and certificated organizations as the basis
for disparate wage treatment. 	While the latter comment itself
emits the scent of retaliation, all of the comments can readily
be associated with the designees' prompt circulation of the
comprehensive ballot and petition for withdrawal of CSEA
support. These documents identified not only the employees who
agreed with the designees' plan, but permitted identification
of those persons who continued to support CSEA. 8
In summary, Dr. Stine's comments, when viewed in the
context of the total conduct engaged in by the District through
its agents, created a threatening and coercive climate in which
it was not possible for the employees to exercise the rights
guaranteed to them by the EERA. 	This resulted in the virtual
At the time of these occurrences petitioners proof of
support was filed with the employer. On 9/27/77, EERA section
3544 was amended to provide for the filing of proof of support
directly with PERB.
22
District.
	At
	that
	meeting
	he
	stated 	his
	preference
	for
	dealing
with
	all
	classified
	employees
	as
	opposed
	to
	the
	limited
	group
for
	which
	CSEA
	had
	petitioned;
	he
	expressed
	his
	doubt
	that
	a
unit
	could
	be
	attained
	for
	some 	two
	years,
	he
	expressed
	his
distaste
	for
	the
	EERA
	and 	he
	suggested 	the
	possibility
	that
	it
would 	be
	repealed.
	He
	cited
	the
	difference
	in 	the
	activities
of 	the
	classified
	and
	certificated
	organizations
	as 	the
	basis
for
	disparate
	wage
	treatment.
	While
	the
	latter
	comment
	itself
emits
	the
	scent 	of
	retaliation,
	all
	of
	the
	comments
	can
	readily
be
	associated
	with 	the
	designees'
	prompt
	circulation
	of
	the
comprehensive
	ballot
	and
	petition
	for 	withdrawal
	of
	CSEA
support.
	These 	documents
	identified
	not 	only 	the
	employees
	who
agreed 	with 	the
	designees' 	plan,
	but 	permitted
	identification
of
	those 	persons
	who
	continued
	to
	support
	CSEA.8
In
	summary,
	Dr.
	Stine's
	comments, 	when
	viewed
	in 	the
context 	of 	the
	total
	conduct
	engaged
	in
	by
	the
	District
	through
its
	agents, 	created
	a
	threatening
	and
	coercive 	climate 	in
	which
it
	was
	not
	possible
	for 	the
	employees
	to 	exercise 	the
	rights
guaranteed 	to
	them 	by
	the
	EERA.
	This
	resulted
	in 	the
	virtual
88At
	the 	time
	of 	these 	occurrences
	petitioners
	proof
	of
support
	was
	filed
	with 	the 	employer.
	On
	9/27/77,
	EERA
	section
3544 	was 	amended
	to 	provide 	for 	the
	filing
	of 	proof 	of 	support
directly
	with
	PERB.
22

destruction of the CSEA chapter seeking to represent classified
employees in the Antelope Valley Community College District.
Dr. Stine's remarks were part and parcel of the total conduct
for which the District is liable as the employer and which
violated subsections (a) and (d) of section 3543.5.
The reference to the representation hearing
The hearing officer took official notice of a stipulation
offered in a PERB representation hearing conducted after the
close of the unfair practice hearing. The District and CSEA
stipulated that the designees referred to above were
managerial, confidential and supervisory employees.
An administrative agency may take official notice of
is	matters within its own files and records.9 The question
raised, however, as to when such official notice should be
taken and what notice to the parties, if any, should be
required. 	Government Code section 11515,10 	ugh not
9Anderson v. Board of Dental Examiners (1915) 27 Cal. App.
336, 338 [149 P. 1006, 1007]; California Administrative Agency
Practice (Cont. Ed. Bar 1970) Hearing Procedures, section 3.34,
p. 167.
1 Government Code section 11515 states:
In reaching a decision official notice may
be taken, either before or after submission
of the case for decision, of any generally
accepted technical or scientific matter
within the agency's special field, and of
any fact which may be judicially noticed by
the courts of this State. Parties present
at the hearing shall be informed of the
matters to be noticed, and those matters
shall be noted in the record, referred to
therein, or appended thereto. Any such
party shall be given a reasonable
opportunity on request to refute the
officially noticed matters by evidence or by
written or oral presentation of authority,
the manner of such refutation to be
determined by the agency. 23
destruction 	of 	the 	CSEA 	chapter 	seeking 	to 	represent 	classified
employees 	in 	the 	Antelope 	Valley 	Community College 	District.
Dr. 	Stine's 	remarks 	were 	part 	and 	parcel 	of 	the 	total 	conduct
for 	which 	the 	District 	is 	liable 	as 	the 	employer 	and 	which
violated 	subsections 	(a) 	and 	(d) 	of 	section 	3543.5.
The 	reference 	to 	the 	representation 	hearing
The 	hearing 	officer 	took 	official 	notice 	of 	a 	stipulation
offered 	in 	a 	PERB 	representation 	hearing 	conducted 	after 	the
close 	of 	the 	unfair 	practice 	hearing. 	The 	District 	and 	CSEA
stipulated 	that 	the 	designees 	referred 	to 	above 	were
managerial, 	confidential 	and 	supervisory 	employees.
An 	administrative 	agency 	may 	take 	official 	notice 	of
matters 	within 	its 	own 	files 	and 	records.9 	The 	question 	is
raised, 	however, 	as 	to 	when 	such 	official 	notice 	should 	be
taken 	and 	what 	notice 	to 	the 	parties, 	if 	any, 	should 	be
required. 	Government 	Code 	section 	11515,10	thothough 	not
9Anderson 	v. 	Board 	of 	Dental 	Examiners 	(1915) 	27 	Cal.App.
336, 	338 	[149 	P. 	1006, 	1007]; 	California 	Administrative 	Agency
Practice 	(Cont. 	Ed. 	Bar 	1970) 	Hearing 	Procedures, 	section 	3.34,
p. 	167.
100Government 	Code 	section 	11515 	states:
In 	reaching 	a 	decision 	official 	notice 	may
be 	taken, 	either 	before 	or 	after 	submission
of 	the 	case 	for 	decision, 	of 	any 	generally
accepted 	technical 	or 	scientific 	matter
within 	the 	agency's 	special 	field, 	and 	of
any 	fact 	which 	may 	be 	judicially 	noticed 	by
the 	courts 	of 	this 	State. 	Parties 	present
at 	the 	hearing 	shall 	be 	informed 	of 	the
matters 	to 	be 	noticed, 	and 	those 	matters
shall 	be 	noted 	in 	the 	record, 	referred 	to
therein, 	or 	appended 	thereto. 	Any 	such
party 	shall 	be 	given 	a 	reasonable
opportunity 	on 	request 	to 	refute 	the
officially 	noticed 	matters 	by 	evidence 	or 	by
written 	or 	oral 	presentation 	of 	authority,
the 	manner 	of 	such 	refutation 	to 	be
determined 	by 	the 	agency.
23

controlling in PERB procedures, allows official notice to be
taken after submission of the case, but requires that the
parties present at the hearing be so informed. 	. The parties may
then be given the opportunity to submit supplementary argument
on the matters officially noticed.
Where official notice is to be taken of matters not
referred to in the hearing itself, the parties should be so
informed and given a chance to contest debatable facts. Such
post-hearing procedure is appropriate.
However, the better general practice would dictate that
official notice be taken before the close of the hearing, and
that the parties be informed of matters to be noticed and given
a reasonable time to refute them. Nevertheless, no harm or
deprivation of due process occurs where the facts officially
noticed are clearly incontestable. No purpose is served by
permitting such matters to be challenged. ll
In this case, the matters officially noticed by the hearing
officer consisted of sworn stipulations of fact entered into by
the District which it could not therefore challenge in a
separate hearing. No error in the hearing officer's act of
officially noticing the District's own stipulation of fact is
found.
The pay increase for classified employees
The hearing officer's statement that classified employees
had gone without an increase for a long time is disputed in the
record. 	There is evidence that a pay increase was granted in
avis, Administrative Law Text (1972) , generally	llD
Chapter 15, "Official Notice". 24
controlling 	in 	PERB 	procedures, 	allows 	official 	notice 	to 	be
taken 	after 	submission 	of 	the 	case, 	but 	requires 	that 	the
parties 	present 	at 	the 	hearing 	be 	so 	informed. 	The 	parties 	may
then 	be 	given 	the 	opportunity 	to 	submit 	supplementary 	argument
on 	the 	matters 	officially 	noticed.
Where 	official 	notice 	is 	to 	be 	taken 	of 	matters 	not
referred 	to 	in 	the 	hearing 	itself, 	the 	parties 	should 	be 	so
informed 	and 	given 	a 	chance 	to 	contest 	debatable 	facts. 	Such
post-hearing 	procedure 	is 	appropriate.
However, 	the 	better 	general 	practice 	would 	dictate 	that
official 	notice 	be 	taken 	before 	the 	close 	of 	the 	hearing, 	and
that 	the 	parties 	be 	informed 	of 	matters 	to 	be 	noticed 	and 	given
a 	reasonable 	time 	to 	refute 	them. 	Nevertheless, 	no 	harm 	or
deprivation 	of 	due 	process 	occurs 	where 	the 	facts 	officially
noticed 	are 	clearly 	incontestable. 	No 	purpose 	is 	served 	by
permitting 	such 	matters 	to 	be 	challenged.11
In 	this 	case, 	the 	matters 	officially 	noticed 	by 	the 	hearing
officer 	consisted 	of 	sworn 	stipulations 	of 	fact 	entered 	into 	by
the 	District 	which 	it 	could 	not 	therefore 	challenge 	in 	a
separate 	hearing. 	No 	error 	in 	the 	hearing 	officer's 	act 	of
officially 	noticing 	the 	District's 	own 	stipulation of 	fact 	is
found.
The 	pay 	increase 	for 	classified 	employees
The 	hearing 	officer's 	statement 	that 	classified 	employees
had 	gone 	without 	an 	increase 	for 	a 	long 	time 	is 	disputed 	in 	the
record. 	There 	is 	evidence 	that 	a 	pay 	increase 	was 	granted 	in
llnavis, 	Administrative 	Law 	Text 	(1972), 	generally
Chapter 	15, 	"Official 	Notice". 24

July 1976. The error, accepting it as such, was harmless. 	The
point made by the hearing officer in the section of the
proposed decision in which that statement occurred was that a
median salary schedule concept, repeatedly proposed without
success by CSEA, was adopted by the District soon after CSEA's
petition for recognition was filed and almost immediately
following "speculation" by one of the designees at a meeting of
classified personnel that such a concept might be approved. I
is this combination of facts together with others discussed
throughout the proposed decision that led the hearing officer
to find an unfair practice had been committed.
CSEA's demand
The District's effort to make a meaningful distinction
between the word "demand" and "request" is not persuasive.
The District argues that since it had rejected CSEA's
request for recognition, CSEA's demand to meet and negotiate
was unlawful in that it was designed to force the District to
provide prohibited support to an employee organization. 	The
foundation of this argument is that only an exclusive
representative has the right to meet and negotiate in good
faith, and the District was therefore being forced to grant
recognition involuntarily.
It is CSEA's position that its demand letter went no
further than to protect its rights, presumably granted by
25
July 	1976. 	The 	error, 	accepting 	it 	as 	such, 	was 	harmless. 	The
point 	made 	by 	the 	hearing 	6fficer 	in 	the 	section 	of 	the
proposed 	decision 	in 	which 	that 	statement 	occurred 	was 	that 	a
median 	salary 	schedule 	concept, 	repeatedly 	proposed 	without
success 	by 	CSEA, 	was 	adopted 	by 	the 	District 	soon 	after 	CSEA's
petition 	for 	recognition 	was 	filed 	and 	almost 	immediately
following 	"speculation" 	by 	one 	of 	the 	designees 	at 	a 	meeting 	of
classified 	personnel 	that 	such 	a 	concept 	might 	be 	approved. 	It
is 	this 	combination 	of 	facts 	together 	with 	others 	discussed
throughout 	the 	proposed 	decision 	that 	led 	the 	hearing 	officer
to 	find 	an 	unfair 	practice 	had 	been 	committed.
CSEA's 	demand
The 	District's 	effort 	to 	make 	a 	meaningful 	distinction
between 	the 	word 	"demand" 	and 	"request" 	is 	not 	persuasive.
The 	District 	argues 	that 	since 	it 	had 	rejected 	CSEA's
request 	for 	recognition, 	CSEA'? 	demand 	to 	meet 	and 	negotiate
was 	unlawful 	in 	that 	it 	was 	designed 	to 	force 	the 	District 	to
provide 	prohibited 	support 	to 	an 	employee 	organization. 	The
foundation 	of 	this 	argument 	is 	that 	only 	an 	exclusive
representative 	has 	the 	right 	to 	meet 	and 	negotiate 	in 	good
faith, 	and 	the 	District 	was 	therefore 	being 	forced 	to 	grant
recognition 	involuntarily.
It 	is 	CSEA's 	position 	that 	its 	demand 	letter 	went 	no
further 	than 	to 	protect 	its 	rights, 	presumably 	granted 	by
25

section 3543. 1(a) .12 	s unnecessary to decide whether
CSEA had a right to demand good faith negotiations pursuant to
its filing of a request for recognition accompanied by a
majority show of interest in the proposed unit. A reading of
the demand letter establishes that CSEA was only asserting the
right to represent its members as it believed section 3543.1(a)
provided. The letter opened with this illuminating phrase:
In an effort to continue previously accepted
procedures and continued well-being of our
members, CSEA Chapter 374 demands . . . .
[Emphasis added. ]
The reference to "previously accepted procedures" clearly
relates to procedures followed for several years under the
Winton Act13 for presenting proposals on behalf of one's
members to the district board of trustees. The phrase
"well-being of our members" is consistent with Winton Act
provisions as well as with the limiting language of 3543.1(a) .
Government Code section 3543.1 (a) states:	12
Employee organizations shall have the right
to represent their members in their
employment relations with public school
employers, except that once an employee
organization is recognized or certified as
the exclusive representative of an
appropriate unit pursuant to Section 3544.1
or 3544.7, respectively, only that employee
organization may represent that unit in
their employment relations with the public
school employer. Employee organizations may
establish reasonable restrictions regarding
who may join and may make reasonable
provisions for the dismissal of individuals
from membership.
The Winton Act, former Education Code section 13080 et	13
seq., was repealed effective July 1, 1976, by the EERA.
26
section 	3543.l(a) .It i	12 	It 	is 	unnecessary 	to 	decide 	whether
CSEA had 	a 	right 	to 	demand 	good 	faith 	negotiations 	pursuant 	to
its 	filing 	of 	a 	request 	for 	recognition 	accompanied 	by 	a
majority 	show 	of 	interest 	in 	the 	proposed 	unit. 	A reading 	of
the 	demand 	letter 	establishes 	that 	CSEA was 	only 	asserting 	the
right 	to 	represent 	its 	members 	as 	it 	believed 	section 	3543.l(a)
provided. 	The 	letter 	opened 	with 	this 	illuminating 	phrase:
In 	an 	effort 	to 	continue 	previously 	accepted
procedures 	and 	continued 	well-being 	of 	our
members, 	CSEA 	Chapter 	374 	demands 	....
[Emphasis 	added.]
The 	reference 	to 	"previously 	accepted 	procedures" 	clearly
relates 	to 	procedures 	followed 	for 	several 	years 	under 	the
Winton 	Actl3 	for 	presenting 	proposals 	on 	behalf 	of 	one's
members 	to 	the 	district 	board 	of 	trustees. 	The 	phrase
"well-being 	of 	our 	members" 	is 	consistent 	with 	Winton 	Act
provisions 	as 	well 	as 	with 	the 	limiting 	language 	of 	3543.l(a}.
12Government 	Code 	section 	3543.l(a) 	states:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except 	that 	once 	an 	employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate unit pursuant 	to 	Section 	3544 .1
or 	3544.7, 	respectively, 	only 	that 	employee
organization 	may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	employer. 	Employee 	organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join 	and 	may 	make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from 	membership.
13The 	Winton 	Act, 	former 	Education Code 	section 	13080 	et
seq., 	was 	repealed 	effective 	July 	1, 	1976, 	by 	the 	EERA.
26

The hearing officer interpreted the letter in the same manner
and should be sustained.
The remedy
The nature and extent of the unlawful conduct engaged in by
the District made it impossible for the employees to exercise
their free choice in the selection of an exclusive
representative. Because the Board had not yet enunciated its
policy on the matter of staying elections pending the
resolution of certain unfair practice charges, an election was
held in October 1977. 	The employees voted not to be
represented by CSEA. 	The Board would normally find it proper
to set election results aside under such circumstances.
However, more than one year has elapsed since the results were
certified. PERB rule 33250 (b) 14 bars a 	presentation	re
election in a unit in which another election was held during
the previous twelve months. 	Since the bar no longer exists,
the Board will not provide an unnecessary remedy.
The hearing officer has recommended an order which would
prohibit the employer from recognizing the dominated employee
organization seeking to represent nonmanagement and
nonsupervisory employees on matters within scope. 	We
explicitly clarify that prohibition to include representation
of such employees on any matter coming under the EERA umbrella.
Further, in light of the circumstances, the Board finds the
results of the election irreparably tainted by the totality of
california Administrative Code, title 8, section	14
33250 (b) .
27
The 	hearing 	officer 	interpreted 	the 	letter 	in 	the 	same 	manner
and 	should 	be 	sustained.
The 	remedy
The 	nature 	and 	extent 	of 	the 	unlawful 	conduct 	engaged 	in 	by
the 	District 	made 	it 	impossible 	for 	the 	employees 	to 	exercise
their 	free 	choice 	in 	the 	selection 	of 	an 	exclusive
representative. 	Because 	the 	Board 	had 	not 	yet 	enunciated 	its
policy 	on 	the 	matter 	of 	staying 	elections 	pending 	the
resolution 	of 	certain 	unfair 	practice 	charges, 	an 	election 	was
held 	in October 	1977. 	The 	employees 	voted 	not 	to 	be
represented 	by CSEA. 	The 	Board 	would 	normally 	find 	it 	proper
to 	set 	election 	results 	aside 	under 	such 	circumstances.
However, 	more 	than 	one 	year 	has 	elapsed 	since 	the 	results 	were
certified. 	PERB 	rule 	33250(b)l4 	bars 	a 	representation
election 	in 	a 	unit 	in 	which 	another 	election 	was 	held 	during
the 	previous 	twelve 	months. 	Since 	the 	bar 	no 	longer 	exists,
the 	Board 	will 	not 	provide 	an 	unnecessary 	remedy.
The 	hearing 	officer 	has 	recommended 	an 	order 	which 	would
prohibit 	the 	employer 	from 	recognizing 	the 	dominated 	employee
organization 	seeking 	to 	represent 	nonmanagement 	and
nonsupervisory 	employees 	on 	matters 	within 	scope. 	We
explicitly 	clarify 	that 	prohibition 	to 	include 	representation
of 	such 	employees 	on 	any 	matter 	coming 	under 	the 	EERA 	umbrella.
Further, 	in 	light 	of 	the 	circumstances, 	the 	Board 	finds 	the
results 	of 	the 	election 	irreparably 	tainted 	by 	the 	totality 	of
14california Administrative 	Code, 	title 	8, 	section
33250(b).
27

the District's unlawful actions, and therefore considers the
question of representation raised by CSEA to be a continuing
one. The District is therefore prohibited from granting
voluntary recognition to any other employee organization
seeking to represent classified employees. 	Instead, the
District shall notify the Board of any such request for
recognition. The Board will then conduct a hearing or order an
election as it deems appropriate. 15
Finally, we find the recommended means of providing notice
to the classified employees of their rights and the District's
violation of these rights inadequate. The District met
face-to-face with the classified employees on at least two
occasions, including one in which Dr. Stine addressed the
group. At least two memos were circulated to all classified
employees by the designees. The harm to the employees and to
CSEA was extreme from which recovery may well be slow, if at
all. A more effective publication is clearly indicated. 	The
Board, therefore, will require that classified employees be
individually notified according to the following order.
ORDER
Upon the foregoing decision and the entire record in this
case, the Public Employment Relations Board ORDERS that:
1. The charge filed by the California School Employees
Association and its Chapter 374 against the Antelope Valley
Community College District is sustained insofar as it alleges
see Government Code sections 3544.1(b) and 3544.7(a).
28
the
	District's
	unlawful
	actions,
	and
	therefore
	considers
	the
question 	of
	representation 	raised
	by
	CSEA
	to
	be
	a
	continuing
one.
	The
	District
	is
	therefore 	prohibited
	from
	granting
voluntary 	recognition 	to
	any
	other
	employee
	organization
seeking
	to
	represent
	classified
	employees.
	Instead, 	the
District
	shall
	notify
	the
	Board
	of
	any
	such
	request 	for
recognition.
	The
	Board
	will
	then 	conduct
	a
	hearing 	or
	order
	an
election
	as
	it
	deems
	appropriate.15
Finally,
	we
	find
	the
	recommended 	means
	of
	providing
	notice
to
	the
	classified
	employees
	of
	their 	rights
	and
	the
	District's
violation
	of 	these
	rights
	inadequate.
	The
	District
	met
face-to-face
	with 	the
	classified
	employees
	on
	at 	least
	two
occasions, 	including
	one
	in
	which 	Dr.
	Stine
	addressed
	the
group.
	At
	least
	two 	memos
	were
	circulated
	to
	all
	classified
employees
	by
	the 	designees.
	The 	harm
	to 	the
	employees 	and
	to
CSEA
	was
	extreme
	from 	which
	recovery
	may
	well
	be
	slow,
	if
	at
all.
	A more
	effective 	publication
	is 	clearly 	indicated.
	The
Board,
	therefore, 	will
	require
	that 	classified
	employees
	be
individually 	notified
	according 	to 	the 	following
	order.
ORDER
Upon
	the 	foregoing 	decision
	and
	the
	entire
	record 	in 	this
case, 	the 	Public
	Employment
	Relations
	Board
	ORDERS
	that:
1.
	The
	charge
	filed	
by 	the 	California
	School 	Employees
Association
	and
	its
	Chapter
	374
	against 	the 	Antelope 	Valley
Community
	College
	District 	is 	sustained 	insofar 	as
	it
	alleges
5	15	1 	see 	Government 	Code
	sections 	3544.l(b) 	and 	3544.7(a).28

violation of subsections (a) and (d) of section 3543.5 of the
Educational Employment Relations Act.
2. The charge filed by the Antelope Valley Community
College District against California School Employees
Association and its Chapter 374 alleging a violation of section
3543.6 (a) is dismissed.
3. It is further ORDERED that the District shall cease and
desist from:
a. Discriminating against employees or otherwise
interfering with, restraining or coercing employees
because of their exercise of rights guaranteed by the
Educational Employment Relations Act by authorizing or
permitting its president or its managerial,
supervisory or confidential personnel to represent
nonsupervisory employees in their employment relations
with the District;
b. In any way, encouraging employees to join any
organization in preference to another, including by
authorizing its president or its managerial,
supervisory or confidential personnel to circulate
petitions encouraging or soliciting said employees'
withdrawal of support or membership in the California
School Employees Association or in any other employee
organization which seeks to represent said employees,
or by permitting its president or its managerial,
supervisory or confidential personnel to represent
said employees in their employment relationships with
the District; 29
violation
	of 	subsections
	(a) 	and 	(d)
	of 	section
	3543.5
	of
	the
Educational
	Employment
	Relations
	Act.
2.
	The
	charge
	filed
	by
	the
	Antelope
	Valley
	Community
College
	District
	against 	California
	School
	Employees
Association
	and
	its
	Chapter
	374
	alleging
	a
	violation
	of
	section
3543.6(a)
	is
	dismissed.
3.
	It
	is
	further
	ORDERED
	that
	the
	District
	shall
	cease
	and
desist
	from:
a.
	Discriminating
	against
	employees
	or
	otherwise
interfering
	with,
	restraining
	or 	coercing
	employees
because
	of
	their
	exercise 	of
	rights
	guaranteed
	by
	the
Educational
	Employment
	Relations
	Act
	by
	authorizing
	or
permitting
	its
	president
	or
	its
	managerial,
supervisory 	or
	confidential
	personnel 	to
	represent
nonsupervisory
	employees
	in
	their
	employment
	relations
with
	the
	District;
b. 	In
	any 	way,
	encouraging
	employees
	to 	join
	any
organization 	in 	preference 	to 	another, 	including
	by
authorizing
	its
	president
	or
	its
	managerial,
supervisory 	or
	confidential
	personnel 	to
	circulate
petitions
	encouraging 	or
	soliciting
	said
	employees'
withdrawal 	of 	support 	or
	membership
	in 	the
	California
School 	Employees
	Association 	or 	in
	any
	other
	employee
organization
	which
	seeks 	to 	represent 	said 	employees,
or
	by
	permitting
	its
	president 	or
	its
	managerial,
supervisory 	or
	confidential 	personnel 	to 	represent
said 	employees 	in 	their
	employment
	relationships 	with
the 	District; 29

c. Dominating or interfering with the formation
of an employee organization by authorizing its
president or its managerial, supervisory or
confidential personnel to form a committee or any
other organization for the purpose of representing
said employees in their employment relations with the
District.
4. It is further ORDERED that the District take the
following affirmative action designed to effectuate the policy
of the Educational Employment Relations Act:
a . 	Prepare and post copies of this Order and
the attached notice at each of its campuses and work
sites for sixty (60) calendar days in conspicuous
places, including all locations where notices to
classified employees are customarily posted;
b. Mail to each classified employee
within ten (10) days after receipt of this Order a
copy thereof together with a copy of the attached
notice ;
c. At the end of the posting period notify the
Los Angeles Regional Director of the Public Employment
Relations Board of the action it has taken to comply
with this Order.
By : 	Harry Gluck, Chairperson
Concurring opinion of Board Member Dr. Raymond J. Gonzales
begins on page 32.
30
c.
	Dominating
	or
	interfering
	with 	the
	formation
of
	an 	employee
	organization
	by
	authorizing
	its
president
	or
	its
	managerial, 	supervisory
	or
confidential
	personnel
	to
	form 	a
	committee
	or
	any
other
	organization
	for 	the
	purpose
	of
	representing
said
	employees
	in
	their
	employment
	relations
	with
	the
District.
4.
	It
	is
	further
	ORDERED
	that
	the
	District
	take
	the
following
	affirmative 	action
	designed
	to
	effectuate
	the 	policy
of
	the 	Educational
	Employment
	Relations
	Act:
a. 	Prepare
	and
	post
	copies 	of
	this
	Order 	and
the
	attached 	notice
	at
	each
	of
	its
	campuses 	and 	work
sites
	for
	sixty
	(60)
	calendar
	days
	in 	conspicuous
places,
	including
	all
	locations
	where
	notices 	to
classified
	employees
	are 	customarily 	posted;
b.
	Mail
	to
	each
	classified
	employee
within 	ten
	(10)
	days
	after
	receipt
	of
	this
	Order
	a
copy
	thereof 	together
	with
	a
	copy
	of 	the 	attached
notice;
c.
	At
	the
	end
	of 	the 	posting 	period
	notify 	the
Los
	Angeles 	Regional
	Director 	of 	the 	Public
	Employment
Relations
	Board
	of 	the 	action
	it
	has 	taken 	to
	comply
with
	this
	Order.
- 	l 	.
arry
	Gluck, 	Chairperson
~
C
	ring 	opinion 	of 	Board Member 	Dr. 	Raymond
	J. 	Gonzales
begins 	on 	page 	32.
30

APPENDIX
NOTICE TO EMPLOYEES
POSTED AND MAILED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in which all parties had the right to
participate, it has been found that the Antelope Valley
Community College District violated the Educational Employment
Relations Act by encouraging classified employees to withdraw
support from the California School Employees Association,
Chapter 374, and to support instead a committee of managerial,
supervisory and confidential employees for the purpose of
representation on employment relations matters and by assisting
in the formation of said committee.
As a result of this conduct we have been ordered to post
and mail this notice and we will abide by the following:
WE WILL NOT discriminate against or interfere with
classified employees because of their exercise of free choice
of representative.
WE WILL NOT encourage membership in any employee
organization in preference to another.
WE WILL NOT interfere with the employees' freedom to join
or refrain from joining any employee organization.
WE WILL NOT dominate or interfere with the formation of any
employee organization purporting to represent employees of the
District in their employment relations.
ANTELOPE VALLEY COMMUNITY COLLEGE DISTRICT
By : 	President
Dated :
This is an official notice. It must remain posted for
sixty (60) consecutive days from the date of posting and must
not be defaced, altered or covered by any material.
31
APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED AND MAILED BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	which 	all 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	Antelope 	Valley
Community 	College 	District 	violated 	the 	Educational 	Employment
Relations 	Act 	by 	encouraging 	classified 	employees 	to 	withdraw
support 	from 	the 	California 	School 	Employees 	Association,
Chapter 	374, 	and 	to 	support 	instead 	a 	committee 	of 	managerial,
supervisory 	and 	confidential 	employees 	for 	the 	purpose 	of
representation 	on 	employment 	relations 	matters 	and 	by 	assisting
in 	the 	formation 	of 	said 	committee.
As 	a 	result 	of 	this 	conduct 	we 	have 	been 	ordered 	to 	post
and 	mail 	this 	notice 	and 	we 	will 	abide 	by 	the 	following:
WE WILL 	NOT discriminate 	against 	or 	interfere 	with
classified 	employees 	because 	of 	their 	exercise 	of 	free 	choice
of 	representative.
WE WILL 	NOT 	encourage 	membership 	in 	any 	employee
organization 	in 	preference 	to 	another.
WE WILL 	NOT 	interfere 	with 	the 	employees' 	freedom 	to 	join
or 	refrain 	from 	joining 	any 	employee 	organization.
WE WILL 	NOT dominate 	or 	interfere 	with 	the 	formation 	of 	any
employee 	organization 	purporting 	to 	represent 	employees 	of 	the
District 	in 	their 	employment 	relations.
ANTELOPE 	VALLEY 	COMMUNITY 	COLLEGE 	DISTRICT
By: 	President
Dated:
This 	is 	an 	official 	notice. 	It 	must 	remain 	posted 	for
sixty 	(60) 	consecutive 	days 	from 	the 	date 	of 	posting 	and 	must
not 	be 	defaced, 	altered 	or 	covered 	by 	any 	material.
31

Raymond J. Gonzales, Member, concurring:
I concur in the above Order and I am in basic agreement with
Chairperson Gluck's discussion, except as noted below.
I disagree with the Chairperson's assertion that "historically
accepted labor relations principles of agency authority and
principal liability must be applied to cases arising under the EERA."
I believe that in some situations a public school employer, defined
in section 3540.1(k) as "the governing board of a school district,
a school district, a county board of education, or a county
superintendent of schools, " may be held liable for the unlawful acts
of some of its subordinates. Governing boards are responsible for
the overall direction of school districts, but day-to-day decisions
and actions, which may directly affect the organizational rights of
employees, are often made by subordinates without specific
authorization or ratification by the governing board. It
is reasonable that under some circumstances employees may
perceive their employer as responsible for such decisions and
actions, regardless of whether the governing board itself is
directly involved. Under other circumstances, such a perception
may be unreasonable, and it may thus be inappropriate to attribute
these actions to the employer. The question is in what situations
should the employer be held responsible for acts by subordinates
which are unlawful under section 3543.5.
I do not believe it is necessary to adopt a blanket rule
developed in the private sector. The differences between the
authority of employers in the public and private sectors, and
between the provisions of the EERA and the National Labor Relations
32
Raymond 	J. 	Gonzales, 	Member, 	concurring:
I 	concur 	in 	the 	above 	Order 	and 	I 	am 	in 	basic 	agreement 	with
Chairperson 	Gluck's 	discussion, 	except 	as 	noted 	below.
I 	disagree with 	the 	Chairperson's 	assertion 	that 	"historically
accepted 	labor 	relations 	principles 	of 	agency 	authority 	and
principal 	liability must 	be 	applied 	to 	cases 	arising 	under 	the 	EERA."
I 	believe 	that 	in 	some 	situations 	a 	public 	school 	employer, 	defined
in 	section 	3540.l(k) 	as 	"the 	governing 	board 	of 	a 	school 	district,
a 	school 	district, 	a 	county 	board of 	education, 	or 	a 	county
superintendent 	of 	schools," 	may 	be 	held 	liable 	for 	the 	unlawful 	acts
of 	some 	of 	its 	subordinates. 	Governing 	boards 	are 	responsible 	for
the 	overall 	direction 	of 	school 	districts, 	but 	day-to-day 	decisions
and 	actions, 	which 	may 	directly 	affect 	the 	organizational 	rights 	of
employees, 	are 	often made 	by 	subordinates 	without 	specific
authorization 	or 	ratification 	by 	the 	governing 	board. 	It
is 	reasonable 	that 	under 	some 	circumstances 	employees 	may
perceive 	their 	employer 	as 	responsible 	for 	such 	decisions 	and
actions, 	regardless 	of whether 	the 	governing 	board 	itself 	is
directly 	involved. 	Under 	other 	circumstances, 	such 	a 	perception
may be 	unreasonable, 	and 	it 	may 	thus 	be 	inappropriate 	to 	attribute
these 	actions 	to 	the 	employer. 	The 	question 	is 	in what 	situations
should 	the 	employer 	be 	held 	responsible 	for 	acts 	by 	subordinates
which 	are 	unlawful 	under 	section 	3543.5.
I 	do 	not 	believe 	it 	is 	necessary 	to 	adopt 	a 	blanket 	rule
developed 	in 	the 	private 	sector. 	The 	differences 	between 	the
authority 	of 	employers 	in 	the 	public 	and 	private 	sectors, 	and
between 	the 	provisions 	of 	the 	EERA 	and 	the 	National 	Labor 	Relations
32

Act (hereafter NLRA) are sufficient to justify proceeding
cautiously in developing rules for imposing liability on public
school employers for acts of their subordinates.
As noted in the Chairperson's discussion, the NLRA contains
two provisions specifically dealing with the agency relationship
between an employer and its subordinates. Section 2(2) of the
NLRA states that the term employer "includes any person acting
as an agent of the employer, directly or indirectly . . ." and
section 2(13) provides that authorization or subsequent
ratification of specific acts is not controlling in holding a
person responsible for his agent's acts. The EERA contains no
comparable provisions. To me, this indicates that the Legislature
did not intend this Board to adopt the private sector rule without
qualification, but rather intended it to consider carefully the
situations in which it is reasonable to attribute to a public
school employer responsibility for unlawful acts it has neither
expressly authorized or ratified.
In addition, under the NLRA, supervisors and foremen are
generally presumed to be acting and speaking for the employer.
This presumption may be appropriate in a structure where
However ,
supervisors have no organizational rights themselves.
The NLRA is codified at 29 U.S. C. section 151 et seq.
2Gorman, Basic Text on Labor Law (1976) at p. 134.
'Supervisory employees are specifically excluded from the
definition of "employee" in section 2(3) of the NLRA (29 U.S. C.
$152 (3) ) .
33
Act
	(hereafter
	NLRA)
	are
	sufficient
	to
	justify
	proceeding
cautiously 	in
	developing
	rules
	for
	imposing
	liability
	on
	public
school
	employers
	for
	acts 	of
	their
	subordinates.
As
	noted
	in
	the
	Chairperson's 	discussion,
	the
	NLRA
	contains
two
	provisions
	specifically
	dealing 	with
	the
	agency
	relationship
between
	an 	employer 	and
	its
	subordinates. 	Section
	2(2)
	of
	the
1
NLRA	
states 	that
	the
	term
	employer
	"includes
	any
	person
	acting
as
	an
	agent
	of 	the
	employer,
	directly
	or
	indirectly
	..
	"and
section
	2(13)
	provides
	that
	authorization
	or
	subsequent
ratification
	of 	specific 	acts
	is
	not
	controlling 	in
	holding
	a
pexson
	responsible 	for
	his 	agent's 	acts.
	The
	EERA
	contains
	no
comparable
	provisions.
	To
	me,
	this 	indicates 	that
	the
	Legislature
did not 	intend
	this
	Board
	to
	adopt 	the
	private 	sector 	rule
	without
qualification,
	but
	rather
	intended
	it
	to 	consider
	carefully
	the
situations 	in
	which
	it
	is
	reasonable 	to
	attribute
	to
	a
	public
school
	employer
	responsibility
	for
	unlawful
	acts
	it
	has
	neither
expressly 	authorized 	or
	ratified.
In 	addition,
	under
	the
	NLRA,
	supervisors
	and 	foremen
	are
generally
	presumed
	to
	be
	acting
	and
	speaking 	for 	the
	employer.
2
This 	presumption
	may
	be
	appropriate 	in
	a
	structure
	where
supervisors
	have
	no
	organizational 	rights
	themselves.
3
However,
1The
	NLRA
	is
	codified
	at
	29 	U.S.C.
	section
	151
	et
	seq.
2Gorman,
	Basic 	Text 	on 	Labor 	Law 	(1976)
	at
	p. 	134.
3
supervisory
	employees
	are 	specifically
	excluded 	from
	the
definition of
	"employee"
	in 	section 	2(3) 	of 	the
	NLRA
	(29 	U.S.C.
§152(3)).
33

under EERA, supervisors have the right to organize and negotiate.
Supervisors have independent employment interests which may conflict
with the interests of rank and file employees. In attempting to
manifest these interests, supervisors may engage in activities
which may arguably infringe on the organizational rights of rank
and file employees. While the status of the supervisory employees
may lead rank and file employees to perceive employer involvement
in these activities, such activities should not necessarily be
attributable to the employer. 	Thus, under the EERA, it may
not be appropriate to apply a presumption that supervisors
generally act and speak for the employer.
Therefore, I advocate developing policies in this area tailored
to our statute as we gain experience in the kinds of situations in
which employer liability for the acts of others is at issue.
Under the facts in this case, the District can reasonably be
held responsible for the actions of its designated management and
supervisory employees, and cannot now seek to insulate itself by
claiming that it could not interfere with the supervisory employees'
organizational activities. The District had notice of these actions
and not only took no steps to disassociate itself from them but
actively created an impression of support by responding favorably
on proposals made by the designated employees on behalf of all
classified employees.
With respect to the acts of the designated management and
supervisory employees, the Chairperson's discussion finding a
violation of section 3543.5(a) adequately reflects my views, and
his application of Carlsbad Unified School District (1/30/79) PERB
Decision No. 89 does not conflict with my concurrence in that case.
34
under
	EERA,
	supervisors
	have
	the
	right
	to 	organize
	and
	negotiate.
Supervisors
	have
	independent
	employment
	interests
	which
may
	conflict
with
	the
	interests
	of
	rank
	and
	file
	employees.
	In
	attempting
	to
manifest 	these
	interests,
	supervisors
	may
	engage
	in
	activities
which
	may
	arguably
	infringe
	on
	the
	organizational
	rights 	of
	rank
and
	file
	employees.
	While
	the
	status
	of
	the
	supervisory
	employees
may
	lead
	rank
	and
	file
	employees
	to
	perceive
	employer
	involvement
in
	these
	activities,
	such
	activities
	should
	not
	necessarily
	be
attributable
	to 	the
	employer.
	Thus,
	under
	the
	EERA,
	it
may
not
	be
	appropriate
	to 	apply
	a
	presumption
	that
	supervisors
generally
	act
	and
	speak
	for
	the
	employer.
Therefore,
	I
	advocate 	developing
	policies 	in
	this
	area
	tailored
to 	our
	statute
	as
	we
	gain 	experience
	in
	the 	kinds
	of
	situations
	in
which 	employer
	liability
	for 	the 	acts 	of 	others
	is 	at
	issue.
Under
	the
	facts 	in 	this
	case, 	the
	District
	can
	reasonably
	be
held 	responsible 	for 	the 	actions
	•Of
	its
	designated
	management 	and
supervisory
	employees, 	and
	cannot
	now
	seek 	to
	insulate
	itself
	by
claiming
	that
	it
	could
	not
	interfere
	with 	the 	supervisory
	employees'
organizational
	activities.
	The
	District
	had
	notice 	of 	these 	actions
and
not 	only 	took
	no
	steps 	to
	disassociate
	itself
	from 	them
	but
actively 	created
	an
	impression
	of
	support
	by
	responding 	favorably
on
	proposals
	made
	by
	the 	designated
	employees 	on
	behalf 	of
	all
classified
	employees.
With
	respect
	to 	the 	acts 	of 	the 	designated
	management
	and
supervisory
	employees, 	the 	Chairperson's 	discussion 	finding
	a
violation of 	section
	3543.
5
(a) 	adequately 	reflects
	my viei>JS,
	and
his 	application 	of 	Carlsbad 	Unified 	School
	District 	(1/30/79)
	PERE
Decision
	No. 	89 	does 	not 	conflict with
	my
	concurrence 	in 	that 	case.

However, I continue to adhere to my opinion, set forth in that
concurrence, that intent, either actual or inferred, is a requisite
for finding a violation of section 3543.5(a).
In the present case, there is ample evidence that the activities
of the designated employees, attributable to the employer, interfered
with employees' right to self-organization and were taken with the
intent to interfere. Intent is shown here by the indications in the
record that the activities would not have been taken but for the
organizing activities on behalf of CSEA and by the failure of the
District to show any valid justification for its conduct.
Except as noted above, I concur in Chairperson Gluck's
discussion and in his finding that the District violated sections
3543.5(a) and (d) of the EERA.
Raymond J. Gonzales, Member
35
However,
	I
	continue 	to 	adhere 	to
	my
	opinion,
	set
	forth 	in
	that
concurrence,
	that 	intent, 	either
	actual
	or
	inferred,
	is
	a
	requisite
for 	finding
	a
	violation
	of
	section
	3543.S(a).
In 	the
	present
	case,
	there
	is
	ample
	evidence
	that
	the
	activities
of
	the 	designated
	employees,
	attributable
	to 	the
	employer,
	interfered
with
	employees'
	right
	to
	self-organization
	and
	were
	taken
	with
	the
intent
	to
	interfere.
	Intent
	is
	shown
	here
	by
	the
	indications 	in
	the
re~ord
	that
	the
	activities
	would
	not
	have 	been
	taken
	but
	for
	the
organizing
	activities
	on
	behalf 	of
	CSEA
	and by
	the
	failure 	of
	the
District
	to
	show
	any
	valid
	justification
	for
	its
	conduct.
Except
	as
	noted
	above,
	I
	concur
	in
	Chairperson
	Gluck's
discussion
	and
	in 	his 	finding
	that
	the
	District
	violated 	sections
3543.S(a)
	and 	(d)
	of
	the
	EERA.
Raym¢i.d
	J.
	Gonz;:fies, 	Member
35

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ANTELOPE VALLEY COMMUNITY COLLEGE
DISTRICT,
Charging Party, CASE NO. LA-CO-28
VS.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 374,
Respondent.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 374,
CASE NO. LA-CE-110
Charging Party,
VS.
ANTELOPE VALLEY COMMUNITY COLLEGE
DISTRICT, 	PROPOSED DECISION
March 22, 1978Respondent.
Appearances: John Wagner, Attorney, (Wagner and Wagner) on behalf of
Antelope Valley Community College District; Madalyn J. Frazzini, Attorney,
on behalf of California School Employees Association, Chapter 374.
Before Sharrel J. Wyatt, Hearing Officer.
PROCEDURAL BACKGROUND
On April 22, 1977, the California School Employees Association,
Chapter 374 (hereinafter CSEA) filed an unfair charge against the Antelope
Valley Community College District (hereinafter District) charging violation
of Government Code" Section 3543.5(a), (b) and (d). On May 31, 1977, the
Antelope Valley Community College District is located in Lancaster, California
and has an average daily attendance of 3908, Annual Report, Financial
Transactions Concerning School Districts in California, 1975-76, Kenneth Cory,
State Controller, at p. 525.
All references are to the Government Code unless otherwise indicated.
-1-
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ANTELOPE VALLEY COMMUNITY COLLEGE
DISTRICT,
Charging Party,
vs.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, 	CHAPTER 374,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
\
I
)
CASE NO. 	LA-C0-28
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, 	CHAPTER 374,
Charging Party,
vs.
ANTELOPE VALLEY COMMUNITY COLLEGE
DISTRICT,
Respondent.
CASE NO. 	LA-CE-110
PROPOSED DECISION
March 22, 	1978
Appearances: 	John Wagner, 	Attorney, 	(Wagner and Wagner) 	on behalf of
Antelope Valley Community College District; Madalyn J. 	Frazzini, 	Attorney,
on behalf of California School Employees Association, 	Chapter 374.
Before Sharrel J. 	Wyatt, 	Hearing Officer.
PROCEDURAL BACKGROUND
On April 22, 	1977, 	the California School Employees Association,
Chapter 374 	(hereinafter CSEA) 	filed 	an unfair charge against the Antelope
Valley Community College District1 (hereinafter District) 	charging violation
of Government 	Code 2 Section 3543.5(a), 	(b) 	and 	(d). 	On May 31, 	1971, 	the
11 Antelope Valley Community College District 	is 	located in Lancaster, 	California
and has an average daily attendance of 3908, 	Annual Re'port, 	Financial
Transactions Concerning School Districts in California, 	1975-76, 	Kenneth Cory,
State Controller, 	at p. 	525.
2 All references are to 	the Government Code unless otherwise indicated.
=l=

District filed an unfair charge against CSEA alleging violation of
Section 3543.6(a), by attempting to cause the District to violate
Section 3543.5(d) . These matters were consolidated and an informal conference
was held on June 22, 1977. Thereafter, a formal hearing was held at
Lancaster, California on July 27 and 28, September 26, 27 and 28, and
October 17, 1977.
FINDINGS OF FACT
On April 1, 1976, CSEA requested recognition from the District as the
exclusive representative for a unit of classified employees employed by the
District, excluding management, supervisory, confidential employees. As of the
conclusion of this hearing, no exclusive representative had been recognized
or certified for classified employees of the District. In the spring and
fall of 1976, while a unit question was pending, the District designated
certain classifications as confidential and others as management.
The District's case revolves around a letter from a CSEA field
representative, Pat Mullvain, dated February 16, 1977 addressed to Dr. Stine,
the superintendent and president of the District, requesting an appointment
with Dr. Stine to discuss the appropriate unit in relation to CSEA's request
for recognition. 	The letter stated in part:
In an effort to continue previously accepted
procedures and the continued well being of our
members, CSEA Chapter 374, demands the right
to proceed into negotiations on behalf of the
members of this chapter. We insist that we be
placed on the agenda for the regular Board of
Trustees Meeting, April 4, 1977 in order that
we may present our salary, fringe benefits
and contract proposals for the 1977-78
academic year.
Dr. Stine testified that he interpreted the above paragraph as a demand
from CSEA to negotiate and write a contract in response to those negotiations.
Dr. Stine responded to the above letter by sending a letter to Mr. Mullvain
-2-
District filed
	an
	unfair
charge
against
	CSEA
alleging
violation
of
Section 3543.6(a),
	by
attempting
	to 	cause
	the
District
	to
	violate
Section
	3543.S(d).
	These
matters
were
	consolidated
and an
	informal
	conference
was
	held
	on
June 22, 	1977.
	Thereafter,
	a
	formal
	hearing
was
	held
	at
Lancaster,
	California
on
July
27 and
	28, 	September 26,
	27
	and
	28,
	and
October
17,
	1977.
FINDINGS
OF
FACT
On
	April
1,
	1976,
	CSEA_
requested
	recognition
	from
	the
District
	as
	the
exclusive
	representative for
	a
	unit
	of
	classified
employees
	employed
by
	the
District,
	excluding
management,
	supervisory,
	confidential
	employees.
	As
	of the
conclusion
of 	this
	hearing,
	no
	exclusive
	representative
had been
	recognized
or
certified
	for
	classified
	employees
of the
District.
	In the spring
	and
fall
	of
1976,
	while
a
	unit
	questfon
was
pending,
	the
District
	designated
certain classifications
	as
	confidential
and
others
	as
management.
The
District's
	case revolves
	around
a
	letter
	from a
	CSEA
field
representative,
	Pat 	Mullvain, 	dated February 16,
	1977
	addressed 	to
	Dr.
	Stine,
the superintendent
	and
	president of 	the
District,
	requesting
	an
	appointment
with
Dr.
	Stine
	to
	discuss 	the appropriate unit in
	relation
	to
	CSEA's
	request
for recognition.
	Lhe
	letter
	stated
	in part:
In
	an
	effort
	to 	continue previously accepted
procedures
	and
	the continued well being of our
members,
	CSEA
Chapter
	374, 	demands
	the
	right
to proceed
	into negotiations
	on
behalf of the
members
	of
	this
	chapter.
	We
	insist
	that
we
be
placed
on
	the
	agenda
	for the regular
Board
of
Trustees
Meeting,
	April
	4,
	1977
	in order
	that
we
may
present 	our
	salary, 	fringe benefits
and
	contract proposals 	for 	the
	1977-78
academic
	year.
Dr.
	Stine
	testified that
	he
	interpreted the
	above
	paragraph as
	a demand
from
CSEA
to negotiate
and
write
a
	contract 	in response 	to 	those negotiations.
Dr.
	Stine responded to 	the above
	letter
by sending a
	letter
	to Mr.
	Mullvain
-2-

on February 28, 1977 in which he referred Mr. Mullvain to Bill Montamble,
the District's representative, regarding discussion of the appropriate unit,
and went on to state:
The matter of your demand to proceed at this time with
negotiations on behalf of members of Chapter 374 has
substantial legal and procedural implications. That
demand has been referred to our counsel and in the event
that we can unilaterally make a determination in the
matter, you will be so notified.
Mr. Mullvain testified that he often used the word "negotiate" in relation
to meet and confer under the Winton Act and that his intent in using the
word was to meet with District representatives, present chapter proposals,
confer with the District representatives and attempt to reach some sort of
settlement. 	Mullvain testified that in his opinion, a non-exclusive
representative can only represent its members under the EERA.
During the entire period, no other organization had requested
recognition by the District or filed an intervention to CSEA's request for
recognition.
CSEA's charge involves a series of events commencing shortly before
March 15, 1977, when Dr. Stine met with employees who had been designated
as management or confidential to form a committee to present proposals on
wages and fringe benefits covering designated management and confidential
employees . 	Thereafter Dr. Stine called a meeting for all classified
employees on March 15, 1977, at which he indicated that the Educational
Employment Relations Board (hereinafter EERB) was currently scheduling case
number 100 and the unit determination case number for the District was over
number 400. Thus it would be two years before the EERB got that far. By then,
the law which Dr. Stine felt was a poor law, might be repealed. Dr. Stine
'Effective January 1, 1978, the EERB became the Public Employment Relations
Board, (PERB) .
-3-
on February 28, 	1977 in which he referred Mr. 	Mullvain to 	Bill Montamble,
the District's 	representative, 	regarding discussion of the appropriate 	unit,
and went on to 	state:
The matter of your demand to proceed at 	this 	time with
negotiations on behalf of members of Chapter 374 has
substantial legal and procedural implications. 	That
demand has been referred to our counsel and in the event
that we can unilaterally make a determination in the
matter, 	you will be so notified.
Mr. 	Mullvain 	testified that he often used 	the word "negotiate" in relation
to meet and confer under the Winton Act and that his intent 	in using the
word was to meet with District representatives, 	present chapter proposals,
confer with the District 	representatives and attempt 	to 	reach some sort 	of
settlement. 	Mullvain testified 	that 	in his opinion, a non-exclusive
representative can only represent 	its members under 	the EERA.
During the entire period, 	no other organization had requested
recognition by 	the District or 	filed an intervention to CSEA' s 	request 	for
recognition.
CSEA's charge involves a 	series of events commencing shortly before
March 15, 	1977, when Dr. 	Stine met with employees who had been designated
as management or confidential to 	form a committee to present proposals on
wages and 	fringe benefits covering designated management and confidential
employees. 	Thereafter Dr. 	Stine called a meeting for all classified
employees on March 15, 	1977, at which he indicated that the Educational
Employment Relations Board 	(hereinafter EERB) 3 was currently scheduling case
number 100 and the unit determination case number for 	the District was over
number 400. 	Thus it would be two years before the EERB got 	that 	far. 	By 	then,
the law which Dr. 	Stine felt was a poor 	law, 	might be repealed. 	Dr. 	Stine
3E£fective January 1, 1978, 	the EERB became the Public Employment Relations
Board, 	(PERB) .
-3-

presented an article relative to the Tustin Unified School District" decision
and expressed objections to "outside influences" on the District. Dr. Stine
invited classified employees to bring forth proposals for consideration by
the District and indicated his preference for dealing with all classified
employees as one group.
In response to a question from the audience on why certificated
employees had received an increase and classified had not, Dr. Stine responded
that classified people had received an increase according to their activities
as opposed to certificated who had not pursued the same activities at the
same time.
On March 19, 1977, the Saturday following Dr. Stine's meeting with
classified employees, a meeting was held at the home of Sharon Rediess.
All persons who attended were persons who had been designated as management
or confidential by the District. At that meeting, Dick King did most of the
talking and suggested they call a meeting of all classified employees to
see if they wanted to form a unit of all classified employees to approach
the administration on wages and benefits. A memo was prepared and distributed
to all classified employees. Dated March 21, 1977, it was signed by nine
persons. Those who signed the memo are:
Vivienne Amman, cafeteria supervisor, designated management;
Osker Boyd, maintenance/operations supervisor, designated
management ;
Dave Bradley, data processing coordinator, designated
management ;
George Dluzak, head custodian, designated management;
Dick King, bookstore manager, designated management;
Jim Mcdonald, director of admissions, designated management;
Sharon Rediess, pool secretary, secretary to vice president
academic affairs, designated confidential;
John Stover, director of fiscal operations, designated
management; and
Jerry Winchell on which there is no adequate record .
*Tustin Unified School District, EERB Decision No. HO-U-2, March 16, 1977.
4
presented an article relative to the Tustin Unified School District 	decision
and expressed objections to 	"outside influences" on the District. 	Dr. 	Stine
invited classified employees to bring forth proposals 	for consideration by
the District and indicated his preference for dealing with all classified
employees as one group.
In response to a question from the audience on why certificated
employees had received an increase 	and classified had not, 	Dr. 	Stine responded
that classified people had received an increase according to their activities
as opposed to certificated who had not pursued the same activities at 	the
same time.
On March 19, 	1977, 	the Saturday following Dr. 	Stine's meeting with
classified employees, 	a meeting was held at the home of Sharon Rediess.
All persons who attended were persons who had been designated as management
or confidential by the District. 	At 	that meeting, 	Dick King did most of 	the
talking and suggested they call a meeting of all classified employees to
see if they wanted to 	form a unit of all classified employees 	to approach
the administration on wages and benefits. 	A memo was prepared and distributed
to 	all classified employees. 	Dated March 21, 	1977, 	it was signed by nine
persons. 	Those who 	signed the memo are:
Vivienne Amman, 	cafeteria supervisor, 	designated management;
Osker Boyd, 	maintenance/operations supervisor, 	designated
management;
Dave Bradley, 	data processing coordinator, 	designated
management;
George Dluzak, 	head custodian, 	designated management;
Dick King, 	bookstore manager, 	designated manag~ment;
Jim McDonald, 	director of admissions, 	designated management;
Sharon Rediess, pool secretary, 	secretary to vice president
academic affairs, 	designated confidential;
John Stover, 	director of 	fiscal 	operations, 	designated
management; 	and
Jerry Winchell on which there 	is no 	adequate record·
4Tustin Unified School District, 	EERB Decision No. 	HO-U-2, 	March 16, 	1977.
-4-

The memo called for a "Meeting of Antelope Valley College Classified
Employees, Thursday, March 24, 4:30 p.m." The meeting was held at the end
of a normal work day for most classified employees.
Mr. Montamble is the representative for the administration for receiving
initial employee wage proposals and was the person who approved the use of campus
facilities for the March 24th meeting. Mr. King signed the request for use of
the premises and Mr. Montamble did approve it.
Mr. King, the bookstore manager, called the meeting to order and
told the 58 employees in attendance that the purpose of the meeting was to
explore the possibilities of forming classified employees into one unit.
The audience was told that the proposed unit would have a loose structure
with no dues, no elected officers, no constitution or by-laws, and would
represent all classified employees in matters pertaining to wages and fringe
benefits. The function could be broadened if the need arose. 	The unit
could be limited in life span but need not be so limited if employees felt
the unit was representing them fairly and in a positive manner. Employees
were requested to sign a document of support and participate in a secret
ballot to determine whether to go forward.
Mr. King indicated to classified employees that the administration
would be receptive to working with classified employees on a median concept
salary schedule.
Mr. Stover, the director of fiscal operations, spoke to the employees
to answer questions regarding the "median concept" and indicated it would be
as successful for classified employees as it had been for certificated at
the District. Fringe benefits were discussed. It was stressed that the
purpose of the meeting was to determine if classified employees were interested
in uniting in order to present matters pertaining to wages and fringes to the
administration.
-5-
The memo 	called for a "Meeting of Antelope Valley College Classified
Employees, Thursday, 	March 24, 	4;30 p.m." 	The meeting was held at 	the end
of a normal work day for most 	classified employees.
Mr. 	Montamble is 	the representative for 	the administration for receiving
initial employee wage proposals and was 	the person who approved the use 	of campus
facilities 	for 	the March 24th meeting. 	Mr. 	King signed 	the request for 	use of
the premises and Mr. 	Montamble did approve it.
Mr. 	King, 	the bookstore manager, 	called the meeting 	to order and
told the 58 employees in attendance that the purpose of the meeting was 	to
explore the possibilities of forming 	classified employees into one unit.
The audience was 	told 	that the proposed unit would have a 	loose structure
with no dues, 	no elected officers, 	no constitution or by-laws, 	and would
represent all classified employees in matters pertaining to wages and fringe
benefits. 	The function could be broadened if the need arose. 	The unit
could be limited in life span but need not be so limited if employees felt
the unit was representing them fairly and in a positive manner. 	Employees
were requested 	to sign a document.of support and participate in a secret
ballot 	to determine whether 	to go forward.
Mr. 	King indicated 	to classified employees 	that 	the administration
would be receptive to working with classified employees on a median concept
salary schedule.
Mr. 	Stover, 	the director of fiscal operations, 	spoke to 	the employees
to answer questions regarding the "median concept" and indicated it would be
as successful for 	classified employees as 	it had been for certificated at
the District. 	Fringe benefits were discussed. 	It was 	stressed 	that 	the
purpose of the meeting was 	to determine if classified employees were interested
in uniting in order to present matters pertaining to wages and fringes 	to 	the
administration.

It was determined that a secret ballot would be taken to determine
if employees were interested. Donna Dinger, the CSEA president, agreed to
be part of the committee to count the ballots, but later withdrew. Ms. Dinger
did not object to the above course of activity.
The ballot provided for a yes/no vote for a unit of all classified
employees and a yes/no vote for CSEA. The yes/no for CSEA was crossed out
before the ballots were marked because of objections to this portion.
Dorothy Bryant, secretary to Dr. Stine, typed the ballot. 	She was designated
a confidential employee.
Similar, separate meetings were held by Mr. Dluzak and Mr. King at the
maintenance shop for employees who could not attend the main meeting.
Mr. Dluzak told custodians he wanted them all to be at this meeting.
After ballots were counted, Mr. King sent out a memo on March 28, 1977
to all classified employees indicating 71 yes, 8 no and 2 not voting to support
a single unit. His memo also indicated that 24 of 56 persons had signed a
petition to have their names removed from CSEA's request to be the exclusive
agent, and that 12 who had signed the petition had left the District and one
who signed would be leaving in May of 1977. He also reported that 52 persons
had signed the document of support circulated at the meeting he conducted on
March 24, 1977.
At least some employees including Ida Montez, Gwen Winchell and
Willie Collins felt that the presentation at this meeting by Mr. King and
Mr. Stover was made to them on behalf of management because of the status of
those who called the meeting, because Dr. Stine had indicated his preference
for no exclusive representative, and/or because the meeting was called so soon
after the March 15th meeting with Dr. Stine. Donald B. Hamilton felt compelled
to attend the meeting because of the status of those who called the meeting.
Thereafter, five persons were selected to put a proposal together:
-6-
It
was
	determined
	that
	a
	secret
	ballot
would be
	taken
	to
	determine
if
	employees were
	interested.
	Donna
Dinger,
	the
	CSEA
president,
	agreed
	to
be
	part
of 	the
	committee
	to
	count
	the
ballots,
	but
	later
withdrew.
	Ms.
	Dinger
did not
	object
	to
	the
above
	course of
activity.
The
ballot
	provided
	for
	a
	yes/no
vote
	for
	a
	unit
	of
	all
	classified
employees
	and
a
yes/no vote
	for
	CSEA.
	The
	yes/no
	for
	CSEA
was
	crossed
out
before the
ballots
were marked
because
of
objections
	to
	this
	portion.
Dorothy
Bryant,
	secretary
to
Dr.
	Stine,
	typed
	the
ballot.
	She was
	designated
a
	confidential
	employee.
Similar, 	separate
meetings
were
held
by Mr.
	Dluzak
and
Mr. 	King
at 	the
maintenance
shop
	for
	employees
who
	could
not
	attend
	the
main
meeting.
Mr.
	Dluzak
told
custodians
he wanted
	them
all
	to
	be
	at
	this
meeting.
After
ballots
were
	counted,
	Mr.
	King
	sent
	out
a
memo
	on March
	28,
	1977
to
	all
	classified
employees
	indicating
71
	yes,
	8 no
	and
2
not voting to
	support
a
	single unit.
	His
memo
	also indicated
	that
	24
of
	56
	persons
	had
	signed
	a
petition
	to
have
	their
names removed from CSEA's
	request to
	be
	the exclusive
agent,
	and
that
	12
who
	had
signed the
petition
had
	left
	the
District
	and
	one
who
	signed
would be
	leaving
in
May
of
1977.
	He
also reported that
	52
	persons
had
signed the
document
	of support
	circulated at
	the
meeting
he
	conducted
	on
March 24, 	1977.
At
	least
	some
employees
	including Ida
Montez,
	Gwen
Winchell
and
Willie Collins
	felt
	that
	the presentation at 	this
	meeting
by Mr. 	King
and
Mr.
	Stover
was made
	to
	them on
	behalf of
management
because
of the
	status 	of
those
	who
	called the meeting, 	because Dr.
	Stine
had
	indicated his preference
for
no
	exclusive representative, 	and/or because the meeting
was
	called
	so 	soon
after
	the
March
15th meeting with
Dr.
	Stine.
	Donald B.
	Hamilton
	felt
	compelled
to attend the meeting because of the status of those
who
	called the meeting.
Thereafter, 	five persons were
	selected to put a proposal together:
-6-

Richard King, bookstore manager, designated management;
Jerry Lewis, athletic trainer/ equipment manager, designated
management ;
Sharon Rediess, pool secretary, designated confidential;
John Stover, director of fiscal operations, designated
management ;
James Mcdonald, director of admissions, designated
management .
They met to put together a wage and fringe package to present to the
administration. Such a package was presented to the administration by
Mr. King after this unfair charge was filed and served. 	The median concept,
fringes and holidays presented by the committee were adopted by the board of
trustees . 	Every year since 1974, CSEA had endeavored to have the median concept
adopted for classified employees as it had been for certificated employees,
but the administration had refused to consider the idea.
Between March 21, 1977 and March 25, 1977, a petition was circulated
which stated:
After consideration and discussion with my fellow employees
of the advantages and disadvantages of the CSEA Petition
for Recognition I signed in 1976, I now feel that the
petition no longer serves my best interests.
With this new knowledge, I now request my name be withdrawn.
This petition was circulated by persons designated as confidential or
management to employees who worked in their divisions during working hours
and at the meeting held by Mr. King with the custodial staff. In nearly
every case, the petition was given to the employee and the employee was told
they should read it and sign it or not sign it, it was up to them.
Persons who circulated the petition include Mr. Stover, Ms. Rediess,
Ms. Amman, Mr. Boyd, Mr. King and Mr. Mcdonald. At least some employees, including
Donald B. Hamilton and Ida Montez, felt that the request that they sign the petition
was made on behalf of management because of the status of the persons who circulated
the petition. 	Thereafter, the petition was filed away. The record does not
reflect that it was presented to the administration or forwarded to the EERB.
-7-
Richard
King,
	bookstore
	manager,
	designated
manageme~t;
Jerry
Lewis,
	athletic
	trainer/equipment
manager,
	designated
management;	
. 	.
Sharon
Rediess, 	pool
	secretary,
	designated
	conf:dential;
John
	Stover,
	director
of
	fiscal
	operations,
	designated
management;
James McDonald,
	director
of
	admissions, 	designated
management.
They 	met
	to
	out
	together
a wage and
	fringe
	package
	to
present
	to
	the
administration.
	Such a
	package
was
	presented
	to 	the
administration
by
Mr.
	King
	after this
unfair
charge
was
	filed
	and
	served.
	The
median
concept,
fringes
	and
holidays presented
by
	the
	committee
were
adopted
	by
	the board of
trustees•
	Every
	year
	since
1974,
	CSEA
had
	endeavored
	to
	have
	the
median
	concept
adopted
	for
	classified
employees
as
	it
	had
been
	for
	certificated
employees,
but the administration
had
refused to consider the idea.
Between March
21,
	1977
	and
March
25, 	1977,
	a
	petition
was
	circulated
which
	stated:
After consideration
and
discussion
with
my
	fellow
employees
of the
advantages
and
disadvantages of the
	CSEA
Petition
for
	Recognition
	I
	signed
	in
1976,
	I now
feel
	that
	the
petition
no
	longer serves
my
best
	interests.
With
	this
new
knowledge,
	I now
request
	my·name
be
withdrawn.
This
	petition
was
	circulated
by
persons designated as
	confidential or
management
	to
	employees
who
worked
	in
	their
divisions
	during
working
hours
and
	at
	the
meeting
held
by Mr. 	King
with the
	custodial
	staff.
	In
nearly
every
case, 	the
	petition
was
	given to 	the
	employee and
	the
	employee was
	told
they should read
	it
	and
	sign
	it
	or not 	sign
	it, 	it
was up
	to
	them.
Persons
	who
	circulated
	the
petition
	include
Mr.
	Stover,
	Ms.
	Rediess,
Ms. 	Amman, 	Mr. 	Boyd, 	Mr. 	King and Mr. 	McDonald. 	At
	least
	some employees, 	including
Donald B. 	Hamilton and Ida
Montez,
	felt 	that 	the request 	that
	they sign 	the petition
was made on
behalf of
management because of 	the status of the persons
who
	circulated
the petition. 	Thereafter, 	the petition
was
	filed
away. 	The record does 	not
reflect 	that 	it
was presented to the administration or forwarded 	to 	the 	EERB.
-7-

The record is clear that whenever the group initiated by the designated
management and confidential employees used District materials, they paid
for their use. 	Employees were not released from work to attend the meetings.
Use of District facilities is equally available upon request to CSEA.
Therefore, these factors do not enter into consideration in reviewing CSEA's
charges. Dr. Stine testified that he does not recall learning of the meeting
of March 24, 1977 of all classified employees until he gathered materials
together relative to the CSEA's unfair charge on April 29, 1977, and that he
first saw the petition to withdraw support from CSEA on that same date. No
witness testified that he or she had received direction from Dr. Stine,
Mr. Montamble, or any member of the board of trustees regarding the course
of the behavior to which CSEA objects herein. Nor does the record reflect
that Dr. Stine, Mr. Montamble, or any member of the board of trustees had
knowledge of the course of behavior to which CSEA objects.
Official notice is taken of the record in the subsequent unit
determination case, "in which the same parties stipulated that the District
is an employer and CSEA is an employee organization within the meaning of
the Act. They stipulated that the confidential positions to be excluded
from the unit are the secretary to the superintendent and four senior
secretaries. 	The parties further stipulated that the veterans affairs
coordinator, director of auxiliary services, director of admissions,
director of fiscal services, director of maintenance and operations, head
custodian and head groundsman are excluded as either management or
supervisory. The position of cafeteria supervisor was not resolved because
that position was vacant at the time of that hearing.
Antelope Valley Joint Community College District and CSEA Chapter 374,
PERB Decision No. HO-R-52, January 30, 1978.
-8-
The record is clear that whenever the group 	initiated by the designated
management and confidential employees used District materials, 	they paid
for 	their use. 	Employees were not released 	from work to attend the meetings.
Use of District 	facilities 	is equally available upon request 	to CSEA.
Therefore, 	these factors do not 	enter into consideration in reviewing CSEA's
charges. 	Dr. 	Stine testified that he does not 	recall learning of the meeting
of March 24, 	1977 of all classified employees until he gathered materials
together relative to 	the CSEA's unfair charge on April 29, 	1977, 	and that he
first 	saw the petition to withdraw support from CSEA on that 	same date. 	No
witness 	testified that he or she had received'direction from Dr. 	Stine,
Mr. 	Montamble, 	or any member of the board of trustees regarding 	the course
of 	the behavior to which CSEA objects herein. 	Nor does 	the record reflect
that Dr. 	Stine, 	Mr. 	Montamble, 	or any member of 	the board of trustees had
knowledge of the course of behavior to which CSEA objects.
Official notice is 	taken of 	the record in the subsequent unit
d etermination case, 5	. 	. in which the same parties stipulated that 	the District
is an employer and CSEA is an employee organization within the meaning of
the Act. 	They stipulated that the confidential positions 	to be excluded
from the unit are the secretary to 	the superintendent and four 	senior
secretaries. 	The parties further 	stipulated that the veterans affairs
coordinator, 	director of 	auxiliary services, 	director of admissions,
director of 	fiscal 	services, 	director of maintenance and operations, 	head
custodian and head groundsman are excluded as either management or
supervisory. 	The position of cafeteria supervisor was not resolved because
that position was vacant at 	the time of 	that hearing.
5 Antelope Valley Joint Community College District and CSEA Chapter 374,
PERB Decision No. 	HO-R~52, 	January 30, 	1978.
-8-

The positions of director of student activities and data processing
coordinator were in issue in the unit determination hearing and were found
to be supervisory within the meaning of the Act.
The stipulation of the parties is supported by the testimony
herein. Therefore, the hearing officer accepts the stipulation that
Mr. Boyd, the maintenance and operations supervisor, Mr. Dluzak, the head
custodian, Mr. Mcdonald, the director of admissions, and Mr. Stover, the
director of fiscal operations are either management or supervisory employees
within the meaning of the EERA.
Because Mr. King, the bookstore manager, played a dominant role
throughout the course of activities about which CSEA complains, it is
necessary to determine his status at the time of these activities.
On July 1, 1977, Mr. King was promoted to the position of director of
auxiliary services. At all times relevant to this case he was the bookstore
manager. 	A secretary / bookkeeper, account clerk, and three sales clerks were
employed in the bookstore in addition to student assistants and substitutes
during rush periods. King was responsible for day-to-day operations: ordering
books and supplies, seeing that student needs were met and seeing that a
profit was made. He prepared the budget and was responsible for staying
within it. It was reviewed by the Bookstore Advisory Committee composed of
students, faculty and administrators, It was then sent to the president and
to the Board of Trustees.
A few years ago, the administration and the board of trustees
determined that they would expand the bookstore. Mr. King had no input in
arriving at that decision. He did have input as to how the bookstore would
expand after the decision was made.
-9-
The
	positions
	of
director
of student
	activities
and
	data
processing
coordinator
were
	in
issue
	in
	the
	unit
	determination hearing
and were
	found
to
	be
	supervisory within the
meaning
of the
Act.
The
	stipulation
of
	the
	parties
	is
supported
by
the
	testimony
herein.
	Therefore, 	the hearing
officer
accepts the
	stipulation that
Mr. 	Boyd,
	the
maintenance
and
	operations supervisor,
	Mr.
	Dluzak,
	the
	head
custodian,
	Mr. 	McDonald,
	the
	director
of
	admissions,
	and
Mr.
	Stover,
	the
director
	of
	fiscal
	operations are
	either
management
	or supervisory
employees
within the
meaning
of the
	EERA.
Because
Mr.
	King,
	the
	bookstore
manager,
	played
a·
dominant
	role
throughout
	the
	course
of
activities
about
which
CSEA
complains,
	it
	is
necessary to
	determine
his 	status 	at
	the
	time
of 	these
activities.
On
	July
1,
	1977,
	Mr.
	King
was
promoted
	to
	the position of
director
	of
auxiliary services.
	At
	all
	times
	relevant
	to
	this
	case
	he
was
	the bookstore
manager.
	A
secretary/bookkeeper,
	account
clerk,
	and,
three 	sales clerks
were
employed
	in the bookstore
	in addition
	to 	student
	assistants
	and
	substitutes
during rush
periods.
	King was
	responsible 	for day-to-day
operations: 	ordering
books and
supplies,
	seeing
that
	student
needs
were
met
	and
	seeing
that
	a
profit
was made.
	He
	prepared the
	budget
	and was
	responsible for 	staying
within
	it. 	It
was
	reviewed
by
	the
Bookstore Advisory
Committee composed
	of
students, 	faculty
	and
	administrators,
	It
	was
	then sent 	to 	the
president
	and
to 	the
Board
of Trustees.
A few
years
	ago,
	the administration
and
	the board of
	trustees
determined
	that they
would expand
	the bookstore.
	Mr. 	King had no
	input 	in
arriving at 	that decision.
	He
	did have input as 	to
how
the bookstore would
expand
	after the decision
was made.
-9-

He was involved in the hiring process by participation on a committee
and his recommendations were always followed. He recommended discipline
of employees and his recommendation was followed. He also checked the
work of bookstore employees and directed them to make corrections.
The unit determination hearing left the position of cafeteria
supervisor unresolved because the position was vacant at the time of that
hearing. 	Since it is relevant to determination of this matter, the
position must be determined.
Ms. Amman, the cafeteria supervisor, scheduled hours of work, breaks,
lunch, and assigned specific duties to three cafeteria assistants assigned
to her. No one approved the schedule she set up. She decided who, when
and how much overtime would be worked by the three employees. No one
approved her scheduling of overtime. She evaluated the three employees.
No one reviewed or approved her evaluation.
Upon completion of the hearing, CSEA withdrew charges III, IV, V,
VIII, IX and X and amended charges II and VI set forth hereinafter as
amended.
CONCLUSIONS OF LAW
I
The District argues CSEA violated Section 3543.6(a) by attempting to
cause the District to violate Section 3543.5(d) 'by demanding "other support"
be given to CSEA by the District in CSEA's letter of February 16, 1977
Section 3543.6(a) states: "It shall be unlawful for an employee organization
to: (a) Cause or attempt to cause a public school employer to violate
Section 3543.5."
'Section 3543.5(d) states: "It shall be unlawful for a public school employer
to: ...(d) Dominate or interfere with the formation or administration of
any employee organization, or contribute financial or other support to it,
or in any way encourage employees to join any organization in preference to
another."
-10-
He was 	involved in the hiring process by participation on a committee
and his 	recommendations were always followed, 	He recommended discipline
of employees and his recommendation was 	followed. 	He also checked the
work of bookstore employees and directed them to make corrections.
The unit determination hearing left the position of cafeteria
supervisor unresolved because the position was vacant at 	the time of 	that
hearing. 	Since it 	is relevant 	to 	determination of this matter, 	the
position must be determined.
Ms. 	Amman, 	the cafeteria supervisor, 	scheduled hours of work, 	breaks,
lunch, 	and assigned specific duties 	to 	three cafeteria assistants assigned
to her. 	No one approved the schedule she set up. 	She decided who, 	when
and how much overtime would be worked by the three employees. 	No one
approved her scheduling of overtime. 	She evaluated the 	three employees.
No one reviewed or approved her evaluation.
Upon completion of the hearing, 	CSEA withdrew charges 	III, 	IV, 	V,
VIII, 	IX and X and amended charges 	II and VI set 	forth hereinafter as
amended.
CONCLUSIONS OF LAW
I
6	The District argues CSEA violated Section 3543.6(a) 	by attempting to
cause the District 	to violate Section 3543. 5 (d) 7 by demanding "other support"
be given to CSEA by the District in CSEA's letter of February 16, 	1977
6section 3543.6(a) 	states: 	"It 	shall be unlawful 	for an employee organization
to: 	(a) 	Cause or attempt 	to 	cause a public school employer to violate
Section 3543.5. 11
7Section 3543. 5 (d) 	states: 	"It 	shall be unlawful for a public school employer
to: 	... (d) 	Dominate or interfere with the formation or administration of
any employee organization, 	or contribute 	financial or other support 	to 	it,
or in any way encourage employees to 	join any organization in preference 	to
another."
-10-

requesting an appointment with Dr. Stine to discuss the appropriate unit
and stating:
In an effort to continue previously accepted procedures
and continued well being of our members, CSEA Chapter 374
demands the right to proceed into negotiations on behalf
of members of this chapter. We insist that we be placed on
the agenda for the regular Board of Trustees Meeting,
April 4, 1977, in order that we may present our salary,
fringe benefit and contract proposals for the 1977-78
academic year.
The District's argument focuses on the words demand and negotiate and
interprets the paragraph as a demand to meet and negotiate.
The District cites no precedent to support this novel theory of law.
The alleged demand to negotiate must be read within the context in
which it is presented. Here, the demand was made in a letter that also requested
a meeting to discuss the appropriate unit.
The record indicates the intent of the writer was to meet and confer.
The general demand to proceed into negotiations is followed by specific
insistence that CSEA be placed on the agenda of the Board of Trustees to
present proposals. The record supports intent by CSEA to be placed on the
agenda merely to provide input to the Board of Trustees, in a good faith
albeit mistaken belief that CSEA had the right to represent their members
pursuant to Section 3543.1(a)
Section 3543.1(a) states:
Employee organizations shall have the right to represent their
members in their employment relations with public school employers,
except that once an employee organization is recognized or certified
as the exclusive representative of an appropriate unit pursuant to
Section 3544.1 or 3544.7, respectively, only that employee organiza-
tion may represent that unit in their employment relations with the
public school employer. Employee organizations may establish
reasonable restrictions regarding who may join and may make reasonable
provisions for the dismissal of individuals from membership.
-11-
requesting
	an
	appointment
	with
Dr.
	Stine
	to
	discuss
	the
appropriate
unit
and
	stating:
In
an
	effort
	to continue
	previously
accepted procedures
and
	continued
well
being
of
our
members,
	CSEA
Chapter
	374
demands
	the
	right
	to
	proceed
	into negotiations
on
behalfof
members
of
	this
	chapter.
	We
	insist
	that
we
be
placed
on
the
agenda
	for
	the
	regular
Board
of Trustees
Meeting,
April
4,
	1977,
	in
order
	that
we
may
present
our
	salary,
fringe
	benefit
	and
	contract
	proposals
	for
	the
1977-78
academic
year.
The
District's
argument
	focuses
	on
	the
words
	demand
	and
negotiate
	and
interprets
	the
	paragraph
as	
a demand
	to
	meet and
negotiate.
The
District cites
no
	precedent
	to 	support
	this
novel
	theory of
	law.
The
	alleged
	demand
	to
negotiate
must be
	read
within the context
	in
which
it
	is
	presented.
	Here,
	the
demand was made
	in
a
	letter
	that also
	requested
a
meeting
	to
	discuss 	the
appropriate
unit.
The
record
	indicates
	the
	intent
	of the
writer
was
	to
meet and
	confer.
The
	general
demand
	to
	proceed
into negotiations
	is	
followed
	by
specific
insistence
	that
	CSEA
be
placed
on	
the
	agenda
of	
the
Board
of
Trustees	
to
present proposals.
	The
record supports
	intent	
by
CSEA
to
	be
placed
on
	the
agenda
merely to provide input 	to
	the
Board
of Trustees, 	in	
a good	
faith
albeit	
mistaken
belief	
that
	CSEA
had
	the	
right
	to 	represent	
their
members
pursuant 	to
	Section 	3543.l(a)
8
8
section 3543.l(a)
	states:
Employee
	organizations shall
have
	the
	right
	to 	represent
	their
members
	in
	their
	employment
	relations
with public school employers,
except
	that
	once an employee
organization is
	recognized or
certified
as 	the exclusive representative of
an
appropriate unit pursuant 	toSection 3544.1
or
	3544. 7,
	respectively, 	only that
	employee
organiza-
tion
may
	represent 	that 	unit 	in their
	employment
	relations with 	thepublic school employer. 	Employee
organizations
may
	establishreasonable restrictions regarding
who may
join
and may make
	reasonable
provisions 	for the dismissal of individuals
	from membership.
-11-

The District's interpretation that this letter constituted an unlawful
demand to enter into negotiations leading to a written contract is unreasonable
in light of the context in which it occurs.
Further, even if CSEA were demanding to meet and negotiate, such a
demand would not be unlawful in the factual setting of this case. 	CSEA had
made a request for recognition and there was no intervenor. Thus, it would
not have been unlawful for the District to grant voluntary recognition and
enter into meet and negotiate sessions at any time they chose to do so. 	Since
it would not be unlawful for the District to assent to a request by CSEA to
meet and negotiate, it cannot be found that the request to do so by CSEA is
unlawful.
Where an employee organization has merely demanded to negotiate, it
has never been held to be a violation of the Labor Management Relations
Act, (LRMA) as amended. Such a finding here would violate the statutory
purposes of the EERA which is to promote the improvement of personnel
management and employer-employee relations by imposing rigid standards
which would only serve to impede communication between the parties in an
effort to resolve disputes between themselves.
Section 3540 states: "It is the purpose of this chapter to promote the
improvement of personnel management and employer-employee relations within
the public school systems in the State of California by providing a uniform
basis for recognizing the right of public school employees to join organiza-
tions in their professional and employment relationships with public school
employers, to select one employee organization as the exclusive representative
of the employees in an appropriate unit, and to afford certificated employees
a voice in the formulation of educational policy. .
-12-
The District's interpretation that 	this 	letter constituted an unlawful
demand to enter into negotiations leading to a written contract 	is unreasonable
in light of the context in which it occurs.
Further, 	even if CSEA were demanding to meet and negotiate, 	such a
demand would not be unlawful in the 	factual 	setting of this case. 	CSEA had
made a request 	for recognition and there was no 	intervenor. 	Thus, 	it would
not have been unlawful for the District to 	grant voluntary recognition and
enter into meet and negotiate sessions at any time they chose to do 	so. 	Since
it would not be unlawful for 	the District to assent 	to a request by CSEA to
meet and negotiate, 	it cannot be found 	that the 	request 	to do so by CSEA is
unlawful.
Where an employee organization has merely demanded to negotiate, 	it
has never been held to be a violation of the Labor Management Relations
Act, 	(LRMA) 	as amended. 	Such a finding here would violate the statutory
purposes of the EERA which is 	to promote the improvement of personnel
management and employer-employee relations 9 by imposing rigid standards
which would only serve to impede connnunication between the parties in an
effort 	to resolve disputes between themselves.
9section 3540 states: 	"It is the purpose of this chapter to promote the
improvement of personnel management and employer-employee relations within
the public school systems in the State of California by providing a uniform
basis 	for 	recognizing the right of public school employees to join organiza-
tions 	in their professional and employment 	relationships with public school
employers, 	to select one employee organization as the exclusive representative
of 	the employees 	in an appropriate unit, 	and to afford certificated employees
a voice in the formulation of educational policy, 	•. "
-12-

II
CSEA's Charge I reads as follows:
Employer's President, C. W. Stine, acting apparently and
ostensibly in behalf of employer, did engage in a course of
conduct continuing to the present, of dominating and
interfering in the formation of an employee organization
within the meaning of Section 3540.1(d) of the Act, such
conduct including but not limited to conducting a meeting
on March 15, 1977 and for all Classified Employees of Employer,
at which meeting he said that only the Charging Party had
presented matters to Employer and urged the employees there
present to form a group of employees for the purpose of
presenting matters to Employer, this being contrary to the
provisions of Section 3543.5(d) of the Act, in that Charging
Party filed April 5, 1977.
CSEA's Charge VII reads as follows:
Employer's President C. W. Stine, acting apparently and
ostensibly in behalf of Employer, did engage in a course of
conduct continuing to the present, of threatening reprisals,
interfering, discriminating against and coercing employees
because of their exercise of their rights pursuant to the Act,
such conduct including but not limited to conducting a
meeting on March 15, 1977 for All Classified Employees, at
which meeting said Stine did say to the Classified Employees
there present that nothing was being done about their case
by EERB, that it might be years before EERB got to the case,
that if employees were unhappy with their small cost of living
adjustment for School Year 1976-1977 they had no one to blame
but themselves in that the teachers had gone along with his
wishes and not filed for exclusive representation thereby
getting considerably more of an increase than the classified
employees had gotten, this because a small minority of
employees urging others to sign for exclusive representation
had made it difficult for all Classified Employees, contrary
to the provisions of Section 3543.5(a) of the Act.
These charges are dismissed for failure of proof. The evidence does
not support a finding that Dr. Stine, on March 15, 1977 or any other date,
dominated or interfered with the formation of an employee organization.
At the meeting on March 15, 1977, Dr. Stine expressed the opinion
that it would be two years before the EERB heard the unit case involving
-13-
II
CSEA's Charge I 	reads as follows:
Employer's President, 	C. 	W. 	Stine, 	acting apparently and
ostensibly in behalf of employer, 	did engage in a course of
conduct continuing to 	the present, 	of dominating and
interfering in the formation of an employee organization
within the meaning of Section 3540.l(d) 	of the Act, 	such
conduct 	including but not limited 	to conducting a meeting
on March 15, 	1977 and for all Classified Employees of Employer,
at which meeting he said that only the Charging Party had
presented matters to Employer and urged the employees 	there
present 	to 	form a group of employees 	for 	the purpose of
presenting matters to Employer, 	this being contrary to 	the
provisions of Section 3543.S(d) 	of the Act, 	in that Charging
Party filed April 5, 	1977.
CSEA' s 	Charge VII reads as follows:
Employer's President C. 	W. 	Stine, 	acting apparently and
ostensibly in behalf of Employer, 	did engage in a course of
conduct continuing to 	the present, 	of threatening reprisals,
interfering, 	discriminating against and coercing employees
because of their exercise of their rights pursuant 	to 	the Act,
such conduct including but not limited to 	conducting a
meeting on March 15, 	1977 for All Classified Employees, 	at
which meeting said Stine did say to 	the Classified Employees
there present that nothing was being done about 	their case
by EERB, 	that 	it might be years before EERB got 	to 	the case,
that 	if employees were unhappy with their small cost of living
adjustment 	for School Year 1976-1.977 they had no one to 	blame
but themselves 	in that 	the teachers had gone along with his
wishes and not 	filed 	for exclusive representation thereby
getting considerably more of an increase than the classified
employees had gotten, 	this because a small minority of
employees urging others 	to 	sign for 	exclusive representation
had made it difficult 	for all Classified Employees, 	contrary
to 	the provisions of Section 3543.S(a) 	of 	the Act.
These charges are dismissed for 	failure of proof. 	The evidence does
not 	support 	a finding that Dr. 	Stine, 	on March 15, 1977 or any other date,
dominated or 	interfered with the formation of an employee organization.
At 	the meeting on March 15, 1977, 	Dr. 	Stine expressed the opinion
that 	it would be two years before the EERB heard the unit case involving
-13-

the District, that it was possible that the law would be repealed by that
time, that he did not like the law and would prefer to deal with all
classified employees as one group, and extended an invitation to classified
employees to bring forth proposals for consideration by the District.
None of the foregoing constitutes a violation of Section 3543.5(d) . 1
On March 15, 1977, there was no organization to dominate or interfere
with, nor did Dr. Stine's presentation urge the formation of such an
organization. 	Expressing a preference for dealing with all classified
employees as one group without urging formation of a competing organization
and without threats, promises, an offer of support or an indication of
willingness to deal only with such a group, does not, standing alone,
constitute a violation of Section 3543.5(d). The expression of anti-union
opinions or preference for one labor organization over another, without more,
is protected free speech.
This holding is in agreement with an argument of the District that
Dr. Stine was free to express his views on employee relations provided his
expressions did not constitute coercion.
In regard to the charge that Dr. Stine violated Section 3543.5(a),
the record does not support this charge. Dr. Stine was asked why certificated
employees had received an increase while classified employees had not. His
response was that classified people had received an increase according to
their activities as opposed to the certificated not pursuing the same
activity at the same time. Essentially, Stine was stating that certificated
Section 3543.5(d) states: "It shall be unlawful for public school
employer to: (d) dominate or interfere with the formation or administration
of any employee organization, or contribute financial or other support
to it, or in any way encourage employees to join any organization in
preference to another."
See N. L. R. B. v Corning Glass Works (CA 1) 1953
204 F. 2d 422, 23 LC 67, 619, 32 LRRM 2136.
-14-
the
	District,
	that
	it
was
	possible
	that
	the
law
would
be
	repealed
by
	that
time,
	that
	he
did
not
	like
	the
	law
and
would
prefer
	to deal with
all
classified
employees
as
	one
group,
	and
	extended
an
	invitation
	to
	classified
employees
	to
	bring
forth
proposals
	for 	consideration
by
	the
District.
None
of 	the
	foregoing
	constitutes
	a
violation
of Section 3543.5(d).
	0	0
1
On
March
15,
	1977,
	there
was no
	organization
to
	dominate
or
	interfere
with,
	nor
did
Dr.
	Stine's
presentation
urge
	the
	formation
of
	such
an
organization.
	Expressing
a
	preference for
	dealing with
all
	classified
employees
as
	one group
without urging formation of
	a
	competing
organization
and
without
	threats,
	promises,
	an
offer
of support or
an
	indication
of
willingness
	to deal
	only
with
such
a
	group,
	does
not,
	standing alone,
constitute
a
violation
of Section 3543.5(d).
	The
	expression of
anti-union
opinions or preference
for
	one
labor organization
over
	another, 	without
	more,
is
	protected free
	speech.
11
This holding
	is
	in
agreement
with
an argument
of the
District 	that
Dr.
	Stine
was
	free
	to express
	his
views
	on employee
relations
	provided
	his
expressions did not
	constitute
coercion.
In regard 	to
	the
	charge
	that
Dr.
	Stine violated
	Section
3543.5(a),
the record
	does
not support
	this
	charge.
	Dr.
	Stine
was
	asked
why
certificated
employees had
received
an
	increase
while
classified
	employees had
not.
	His
response
was
	that classified
people
had
	received
	an
increase according 	to
their activities
as
	opposed
	to 	the
	certificated
not pursuing the
	same
activity at
	the
same
	time.
	Essentially, 	Stine
was
	stating that
	certificated
10
section
3543.5(d)
	states: 	"It shall
	be unlawful for public schoolemployer
	to:
	(d) 	dominate or
	interfere
with the formation or administrationof any employee
organization, or contribute financial or other support
to
	it,
	or in
any way
encourage employees 	to
	join
any
organization inpreference to another."
11
see N.L.R.B. 	v Corning Glass Works 	(CA 1) 	1953
204F. 2d 422, 	23
	LC
	67, 	619, 	32
LRRM
2136.
-14-

employees had received a unilateral increase from the District and classified
would have to wait until the unit question was resolved and an election had
occurred.
Dr. Stine's statement is an exercise of free speech and it is found
that it does not contain any threat to impose reprisals, to discriminate,
interfere with, restrain or coerce. It does not promise a raise if employees
drop their request for exclusive representation, nor does it promise
reprisal if it is continued. No violation of Section 3643.5(a) is found.
III
CSEA's Charge II, as amended, reads:
Employer's Classified Employees Vivienne Amman, Osker Boyd,
Dave Bradley, George Dluzak, Dick King, Jim Mcdonald,
John Stover and Jerry Winchell, having been designated
Management pursuant to Section 3540.1(g) of the act, acting
apparently and ostensibly in behalf of Employer, did engage
in a course of conduct continuing to the present, of
dominating and interfering in the formation and administration
of an employee organization within the meaning of
Section 3540. 1(d) of the Act, such conduct including but not
limited to conducting a meeting on March 24, 1977 for all
Classified Employees of Employer, at which meeting said persons
did urge the Classified Employees there present to join the
Antelope Valley College Classified Employees Association, an
organization planned, initiated and sponsored by Employer,
and foisted upon employees who never requested it, contrary
to the provisions of Section 3543.5(d) of the Act.
CSEA's Charge VI reads:
Employer's Classified Employees Vivienne Amman, George Dluzak,
Osker Boyd, Dave Bradley, Dick King, Jim Mcdonald,
John Stover, and Jerry Winchell, having been designated Manage-
ment pursuant to Section 3540.1(g) of the Act, acting
apparently and ostensibly in behalf of Employer, did engage
in a course of conduct continuing to the present, of encourag
ing employees to join another organization in preference to
Charging Party, said Charging Party having filed for exclusive
representation on April 5, 1976, such conduct of those persons
including but not limited to conducting a meeting on March 24,
-15-
employees had
received
a
unilateral
increase
	from
	the
District
	and
	classified
would have
	to wait
until
	the
unit
	question
was
	resolved
and an
	election
had
occurred.
Dr.
	Stine's
	statement
	is
an
exercise
of
	free
	speech
and
	it
	is
	found
that
	it
	does
	not
	contain
any
	threat
	to
	impose
reprisals,
	to
	discriminate,
interfere
with,
	restrain
or
coerce.
	It
does
not
promise
a
	raise
	if
	employees
drop
	their
request for exclusive
representation,
	nor
	does
	it
	promise
reprisal
	if
	it
	is
	continued.
	No
violation
of Section
3643.S(a)
	is
	found.
III
CSEAts Charge
II,
	as
	amended,
	reads:
Employer's
Classified
Employees
Vivienne
Amman,
	Osker Boyd,
Dave
Bradley,
	George
Dluzak,
	Dick King, 	Jim
McDonald,
John
	Stover
and
Jerry
Winchell, 	having been
designated
Management
	pursuant 	to
	Section 3540.l(g) 	of 	the
	act, 	acttng
apparently
and
ostensibly in
behalf of
Employer,
	did
	engage
in
a
	course
of
	conduct
	continuing
	to
	the present,
	of
dominating
and
	interfering
	in
	the formation
	and
	administration
of
	an employee
organization within the
meaning
of
Section 3540.l(d) 	of
	the
Act, 	such conduct
	including but
not
limited
	to 	conducting
a
	meeting
on March
	24,
	1977
	for
	all
Classified
Employees
	of
	Employer,
	at
which
meeting
	said persons
did urge
	the
	Classified
Employees
	there present
	to
	join the
Antelope Valley College
	Classified
Employees
	Association, 	an
organization
planned,
	initiated
and
	sponsored
by Employer,
and
	foisted
	upon employees
	who
never requested
	it,
	contrary
to
	the provisions of Section
	3543.S(d)
	of 	the
Act.
CSEA's Charge VI
	reads:
Employer's
	Classified
Employees Vivienne
Amman,
	George
	Dluzak,
Osker _Boyd, 	Dave
Bradley,
	Dick King, 	Jim McDonald,
John
	Stover,
	and
Jerry
Winchell, 	having been
	designated
~..anage-
ment
	pursuant to 	Section 3540.l(g) 	of 	the Act,
	acting
apparently
and
ostensibly in behalf of
Employer,
	did engage
in
a
	course of conduct continuing to 	the present, 	of encourag-
ing employees to
	join another organization in preference 	to
-Charging
Party, 	said
Charging Party having
	filed
	for exclusive
representation
on
	April 5, 	1976, 	such conduct
	of those persons
including but not 	limited to 	conducting a meeting on March 	24,
-15-

1977, at which meeting for all Classified Employees Employer
did circulate a petition the signing of which would indicate
support for the Antelope Valley College Employees Association,
at which meeting Employer did through those management persons
circulate a ballot the voting thereupon of yes indicated that
the persons wanted the Antelope Valley College Classified
Employees Association to represent them in meeting and negotiat-
ing, contrary to the provisions of Section 3543.5(d) of the
Act.
The evidence reflects that MS. Amman, Mr. Boyd, Mr. Bradley,
Mr. Dluzak, Mr. King, Mr. Mcdonald and Mr. Stover were, indeed, designated
as management. As to Mr. Winchell, the record is unclear as to his
designation. Further, some of these employees did act on apparent
authority of the District in that they occupied positions which were
management or supervisory within the meaning of Section 3540.1 (g) and (m) .
These positions were occupied by Mr. Boyd, Mr. Dluzak, Mr. Mcdonald and
Mr. Stover.
The position of Mr. Bradley was found to be supervisory, 12 a stipula-
tion consistent with the record herein.
The position of cafeteria supervisor was also supervisory within the
meaning of Section 3540.1(m) in that the cafeteria supervisor scheduled and
approved who, when and how much overtime would be worked by the employees
in her department without the requirement of either prior or subsequent
approval. 13
See Antelope Valley Joint Community College District, Case No. LA-R-424,
PERB Decision HO-R-52, January 30, 1978 .
1 Section 3540.1(m) defines supervisory as:
"Supervisory employee: means any employee, regardless of
job description, having authority in the interest of the
employer to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or the responsibility to assign work to and
direct them, or to adjust their grievances, or effectively
recommend such action, if, in connection with the foregoing
functions, the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment.
-16-
1977, 	at which meeting for all Classified Employees Employer
did circulate a petition the signing of which would indicate
support 	for the Antelope Valley College Employees Association,
at which meeting Employer did through those management persons
circulate a ballot the voting thereupon of yes indicated that
the persons wanted the Antelope Valley College Classified
Employees Association to 	represent them in meeting and negotiat-
ing, 	contrary to 	the provisions of 	Section 3543.S(d) 	of 	the
Act.
The evidence reflects 	that Ms. 	Annnan, 	Mr. 	Boyd, 	Mr. 	Bradley,
Mr. 	Dluzak, Mr. 	King, 	Mr. 	McDonald and Mr. 	Stover were, 	indeed, 	designated
as management. 	As to Mr. 	Winchell, 	the record is unclear as to his
designation. 	Further, 	some of 	these employees did act on apparent
authority of 	the District in that 	they occupied positions which were
management or supervisory within the meaning of Section 3540.1 	(g) 	and 	(m).
These positions were occupied by Mr. 	Boyd, Mr. 	Dluzak, Mr. 	McDonald and
Mr. 	Stover.
The position of Mr. 	Bradley was 	found 	to be supervisory, 12 a stipula-
tion consistent with the record herein.
The position of cafeteria supervisor was also supervisory within 	the
meaning 	of Section 3540.l(m) 	in that 	the cafeteria supervisor scheduled and
approved who, 	when and how much overtime would be worked by the employees
in her department without the requirement of either prior or subsequent
approval. 13
12 see Antelope Valley Joint 	Community College District, 	Case No. 	LA-R-424,
PERB Decision HO-R-52, 	January 30, 	1978 ·
13 section 3540.l(m) 	defines 	supervisory as:
"Supervisory employee: 	means any employee, 	regardless of
job description, 	having authority in the interest of 	the
employer to hire, 	transfer, 	suspend, 	lay off, 	recall,
promote, 	discharge, 	assign, 	reward, 	or discipline other
employees, 	or the responsibility to assign work to and
direct 	them, 	or to adjust 	their grievances, 	or effectively
recommend such action, 	if, 	in connection with the 	foregoing
functions, 	the exercise of such authority is not of a
merely routine or clerical nature, 	but 	requires 	the use of
independent 	judgment.
-16-

The position of the bookstore manager was also supervisory within the
meaning of 3540.1(m) because Mr. King sat on the committee to interview
prospective employees and made recommendations that were always followed,
and had made a recommendation for discipline of an employee which was followed.
Thus it is the actions of employees who were designated as management
and who were in fact clothed in the authority of supervisors or management
within the meaning of the Act to which CSEA addresses this charge. Such
employees do, indeed, act on apparent authority of the District. Section
3543.5 states: 	"It shall be unlawful for a public school employer to:"
(Emphasis added)
Emnlover is defined under Section 3540.1(j) as:
"Public school employer" or "employer" means the governing
board of a school district, a school district, a county
board of education, or a county superintendent of schools.
Clearly, for purposes of unfair charges pursuant to 3543.5, the
The	Legislature did not intend a narrow interpretation of this section.
governing board of a school district generally acts through its agents.
In this case, it is a group of management or supervisory employees who have
been cloaked in management or supervisory authority by the board of trustees
and who had been designated as "management" employees by the board of trustees.
The purpose of Section 3543 is to protect the rights of employees
under the Act. Among those rights are the rights provided under Section 3543
"... to form, join, and participate in the activities of employee organizations
of their own choosing. .." and ". . . the right to refuse to join or participate
in the activities of employee organizations. .."
Such rights become illusory if employees who are designated as
management and who have authority as supervisors or management employees
are permitted to interfere with these rights. Whether or not these designated
-17-
The
position
of the bookstore
manager was
	also
	supervisory
within
	the
meaning
of
	3540.l(m)
	because
Mr. 	King
	sat
on
	the
	committee
	to
	interview
prospective
employees
and made
recommendations
	that
were
always
	followed,
and had made a
	recommendation
for
	discipline
	of
an
	employee
which
was
	followed.
Thus
	it
	is
	the
actions
	of
	employees
who
were
designated
as
management
and
who
were
	in
fact
	clothed
	in
	the
authority
of
	supervisors
	or
management
within the
meaning
of 	the
Act
	to
which
CSEA
addresses
	this
	charge.
	Such
employees do,
	indeed,
	act
	on
apparent
authority
of the
District.
	Section
3543.5
	states:
	"It
	shall
be
unlawful
	for
	a
	public
	school
employer	
to:"
(Emphasis added)
Emnlover
	is
defined
under
Section
3540.l(j)
	as:
"Public
school
employer"
or
"employer"
means
	the
governing
board
of
a
	school
district,
	a
	school
	district,
	a
	county
board
of education, 	or
a
	county
superintendent of schools.
Clearly, 	for
	purposes of
unfair
charges pursuant
	to 	3543.5, 	the
Legislature
did not intend
a
narrow
interpretation
of
	this section.
	The
governing board
of
a
	school
district
	generally
acts
	through
its
agents.
In
	this
	case,
	it
	is
a group
	of
management
or supervisory
employees
who
	have
been cloaked
	in
management
or supervisory
authority
by
	the
board of
	trustees
and
who
	had
been
designated as
	"management" employees by
	the
board
of
	trustees.
The
purpose of Section
3543
	is
	to
	protect
	the
rights
	of
	employees
under
	the
Act.
	Among
	those
rights are the
rights
	provided under
	Section
	3543
"
...
to
	form,
	join,
	and
participate
in the
activities
of
employee
organizations
of
	their
	own
choosing
...
"
	and"
	the
right
	to
	refuse to
	join
or
participate
in the
activities
of
	employee
organizations
...
"
Such
rights
	become
	illusory
if
	employees
who
	are designated as
management and who have
authority
as supervisors or
management employees
are permitted to 	interfere with these rights.
	Whether
or not 	these designated
-17-

management /supervisory employees acted under the direction and control of
the superintendent or the board of trustees, their actions appear to be
under the authority of designated management/ supervisory employees to other
classified employees.
CSEA urges that the case law under the Labor Management Relations Act,
as amended, be adopted here. That Act, by amendment has defined an agency test
relative to employers and has deprived supervisors of their status as "employees".
Thus, they are clearly aligned with management. However, prior to amendment
of that Act in 1947 supervisors did have status as employees as they do under
the EERA. The test prior to amendment held employers responsible for the acts
of supervisors who held positions giving them authority over employees if the
employers identified the supervisors with management. (See International Assoc.
of Machinists, etc. v. N.L. R.B. (1940) 311 U.S. 72, 7 LRRM 282 at 286, N. L. R.B. v.
P.G. & E. (9th C. 1941) 118 F 2d 780, 8 LRRM 848, 4 L. C. 601 393). This
subjective test designed to protect rights of employees under the LMRA
is adopted under the EERA. The record reflects that some employees attended
the March 24th meeting because the persons who called the meeting were viewed
as representatives of management. Others felt those who ran the meeting acted
on behalf of management because of their status.
The NLRB test ordinarily would look to the degree of supervisory
authority to determine if the acts of supervisors are attributable to the
employer. Where, as here, the employees have been designated as management
and such a large number of management-designated supervisory employees are
directly involved in forming an employee organization, it is unnecessary to
determine if their level of supervision is sufficiently high to attribute
their acts to the employer. 	Their participation is overwhelming.
CSEA also urges that having designated these employees as management,
the District is estopped from denying that these persons acted as their
-18-
management/supervisory
employees
	acted
under
	the
	direction
	and
	control 	of
the
	superintendent or the
board
of
	trustees,
	their
actions
	appear to
	be
under
	the
authority
of
designated
management/supervisory
employees
	to
	other
classified
	employees.
CSEA
urges
	that
	the case
law
under
	the
Labor
Management
Relations
	Act,
as
	amended,
	be
adopted
here.
	That
Act,
	by 	amendment
	has
	defined
an
agency
test
relative
	to
	employers
and
	has
deprived
	supervisors
of
	their
status
as
	"employees".
Thus,
	they
are
clearly
aligned with
management. 	However,
	prior
	to
	amendment
of
	that
Act
	in
1947
	supervisors
did
have
status
as
	employees
as 	they
do
	under
the
	EERA.
	The
	test
prior
	to
	amendment
held
	employers
	responsible for 	the 	acts
of
	supervisors
who
	held
positions
	giving
	them
authority
over
	employees
	if
	the
employers
	identified
	the supervisors
with
management.
	(See
International
Assoc.
of Machinists,
	etc.
	v.
	N.L.R.B.
	(1940) 	311
U.S. 	72, 	7
LRRM
282
	at
	286, 	N.L.R.B.
	v.
P.G. 	& E.
	(9th
C.
	1941) 	118 F 2d
	780,
	8
LRRM
848,
	4
L.C.
	601
	393).
	This
subjective
	test
	designed to
	protect rights
	of
	employees
	under
	the	
LMRA
is
adopted
under
	the
EERA.
	The
record
reflects
	that
	some
employees
attended
the
March
	24th meeting because
	the
persons
who
	called
	the
meeting were viewed
as
	representatives
	of
management.
	Others
	felt
	those
who
	ran the meeting
acted
on
behalf of
management
because of
	their status.
The
NLRB
	test
	ordinarily
would
	look to 	the
	degree of supervisory
authority
to determine
	if
	the
	acts
	of
	supervisors are
	attributable
	to
	the
employer.
	Where,
	as here, 	the
	employees have been
designated as
management
and
	such
a
	large
number
of management-designated
	supervisory
employees
	are
directly
	involved in
	forming an employee
organization,
	it
	is
	unnecessary
	to
determine
	if
	their level
	of supervision
	is sufficiently
high to
	attribute
their acts to 	the employer. 	Their participation is
overwhelming.
CSEA
also urges 	that having designated these
	employees as management,
the District 	is
	estopped from denying that 	these persons 	acted as
	their
-18-

agent. This argument is found to have merit. In exercising authority to
designate employees as management pursuant to Section 3540.1(g), a public
school district holds persons so designated out to employees as their agent.
Having done so, they should be estopped from denying that such employees
acted without their authority.
As set forth hereinafter, the actions of these designated management/
supervisory employees did upset the delicate balance in employer-employee
relations in favor of the management/ supervisor dominated organization and in
derogation of the employees' right to support CSEA or to elect no representa-
tion. 	These employees are supervisory or management and are under the
direction and control of the District. 	The District is in a position to
control future behavior so such a wrong will not occur again. If the District
were not held accountable for the actions of those it places in authority,
the balance in employer-employee relations would continually be undermind,
the District could gain thereby, rights of employees under the Act would be
undermined, and no remedy would be available. Clearly, this was not the
intent of the Legislature.
Dr. Stine called the designated management/ supervisory employees
together to direct them to prepare a proposal on their own behalf. Within
days he expressed the desire to deal with all classified employees as one
group at a meeting of all classified employees. Within a few days thereafter,
the designated management/ supervisory employees got together and decided to
call a meeting of all classified employees to see if they wanted to form an
organization.
The organization conceived and formed by these designated management/
supervisory employees was an employee organization within the meaning of
3543.5(d) and 3540.1(d) in that its primary purpose was to represent classified
employees in their employment relations with the District. Whether they
-19-
agent.
	This
argument
	is
	found
	to
	have
merit.
	In
	exercising
authority
	to
designate
	employees
as
management
	pursuant	
to	
Section
	3540.l(g),
	a
	public
school
	district
holds persons
	so
	designated out	
to	
employees
	as
	their
	agent.
Having
done
	so,
	they
	should
be
estopped
	from
denying
	that
	such employees
acted
without
	their
authority.
As
	set
	forth
hereinafter,
	the
	actions
	of
	these designated
management/
supervisory
employees
	did
upset 	the
delicate
	balance
	in
employer-employee
relations
	in
favor of the
management/supervisor
dominated
organization
	and
	in
derogation of
	the
	employees'
	right
	to
	support
	CSEA
or
	to
	elect
	no
	representa-
tion.
	These employees
	are 	supervisory or
management and
	are
	under
	the
direction
and
control
of the
	District.
	The
District
	is
	in
a
	position 	to
control future
	behavior
so such
a wrong
will
not occur
again.
	If
	the
	District
were
not held accountable
for
	the
	actions of
	those
	it
	places in
authority,
the balance
	in
employer-employee
relations
would
continually
be
	undermind,
the
District
	could gain
	thereby,
	rights
	of
	employees
	under
	the
Act would
be
undermined,
	and no remedy would
be
available.
	Clearly,
	this
was
not
	the
intent
	of
	the
Legislature.
Dr.
	Stine
	called
the designated
management/supervisory
employees
together
	to
	direct
	them
to 	prepare
a
	proposal
on
	their
own
behalf.
	Within
days
	he
	expressed the
	desire to	
deal with
all
	classified
	employees
	as
	one
group
at
	a
	meeting
of
	all
	classified
	employees. 	Within
a 	few
days
	thereafter,
the designated management/supervisory
employees got
	together
	and
	decided	
to
call
	a
	meeting
of
all
	classified
	employees
	to 	see
	if
	they
wanted
	to 	form an
organization.
The
organization conceived
and formed by
	these designated
management/
supervisory
employees was an employee
organization within the
meaning
of
3543.S(d) 	and
	3540.l(d) 	in that
	its
	primary purpose was to 	represent classified
employees in their
	employment
	relations with the District.
	Whether they
-19-

felt that Dr. Stine desired this or not, these employees held a relationship
of authority on behalf of the District to other classified employees.
Classified employees testified that they felt compelled to attend a meeting
called by this group of employees.
Persons who spoke at the meeting, cloaked as designated management/
supervisory employees indicated the administration would be receptive to a
median concept salary range, a sought after concept by classified employees
who had gone a long time without an increase and who knew Dr. Stine did not
like the idea of meeting and negotiating under the EERA. In this context,
the classified employees were asked to both sign a yes/no ballot indicating
their desire to join this group suggested and formed by designated management/
supervisory employees, and to sign a petition withdrawing support from CSEA.
Thereafter, various supervisors presented the petition withdrawing support
from CSEA to employees they supervised, saying that the employees could sign
or not sign, it was up to them. And Mr. King, a designated management/
supervisory employee sent forth a memo to all classified employees advising
them that 71 classified employes voted yes for the new group and 24 of 56
persons who had signed the CSEA petition had withdrawn their names and 12
had left the District. 	Indirectly, Mr. King was telling employees who
supported CSEA that this new group formed by designated management/ supervisory
employees was strong and everyone was jumping off the CSEA band wagon. By
innuendo, he suggests others should do the same.
Clearly, this course of activity is a violation of Section 3543.5(d).
The new group was conceived, formed and imposed on classified employees
by designated management/ supervisory employees. Such a course of action
constitutes domination and interference in the formation of an employee
organization.
-20-
felt 	that Dr. 	Stine desired this or not, 	these employees held a relationship
of authority on behalf of 	the District 	to other classified employees.
Classified employees testified that they felt 	compelled to attend a meeting
called by this 	group of employees.
Persons who 	spoke at 	the meeting, 	cloaked as designated management/
supervisory employees indicated the administration would be receptive 	to 	a
median concept salary range, 	a sought after concept by classified employees
who had 	gone a long time without an increase and who 	knew Dr. 	Stine did not
like 	the 	idea of meeting and negotiating under the EERA. 	In this context,
the classified employees were asked to both sign a yes/no 	ballot indicating
their desire to 	join this group 	suggested and formed by designated management/
supervisory employees, 	and to 	sign a petition withdrawing support from CSEA.
Thereafter, 	various 	supervisors presented the petition withdrawing support
from CSEA to 	employees 	they supervised, 	saying that 	the 	employees could 	sign
or not sign, 	it was up 	to 	them. 	And Mr. 	King~ 	a designated management/
supervisory employee sent 	forth a memo to all classified employees advising
them that 71 classified employes voted yes 	for 	the new group and 24 of 56
persons who had signed the CSEA petition had withdrawn their names and_l2
had left the District. 	Indirectly, 	Mr. 	King was 	telling employees who
supported CSEA that 	this new group 	formed by designated management/supervisory
employees was strottg and everyone was 	jumping off 	the CSEA band wagon. 	By
innuendo, 	he suggests others should do 	the same.
Clearly, 	this course of activity is a violation of Section 3543.S(d).
The new group was 	conceived, 	formed and imposed on classified employees
by designated management/supervisory employees. 	Such a course of action
constitutes domination and interference 	in the formation of an employee
organization.
-20-

The test of whether a challenged organization is employer controlled
is not objective, but rather subjective from the viewpoint of the employees
(see NLRB v. Thompson Products (CA 6 1942) 130 F. 2d 363, 11 LRRM 521; NLRB v.
Tapper Stove Co. (6th C. 1949) 174 F. 2d 1007, 24 LRRM 2125). Domination con-
stitutes support or interference with an employee organization amounting to
control of the organization, (see Hershey Metal Products Co. 1948 21 LRRM 1237,
76 NLRB No. 105 695) and has been found to occur where supervisors distributed
authorization cards and urged signing them (NLRB v. A & S Electronic (CA 2nd 1970)
423 F. 2d 218, Cert. den. 400 U.S. 833), participated in an ad hoc committee to
draft wage and hour proposals (Doces Sixth Ave. , Inc. (1976) 225 NLRB 114, 1975 -
6 CCH NLRB 17, 128) or formation of an employee organization was at the suggestion
of a company official and with the aid of supervisors (Davis d/b/a/ Queen City
Transport (1963) 141 NLRB 964) or supervisor aided in the membership campaign
and circulated petitions to withdraw support from another employee organization
(Ardivine Mfg. Co. (1965) - 153 NLRB, No. 72, Holland Mig. Co. 129 NLRB 776,
Enfed. CA 3rd 1961 292 F. 2d 840, Lawcon Milk Co. 1962 136 NLRB 538, Enfed.
CA 6th 1963 at 47 LC 18, 280) or participated in the formation or administration
of an employee organization (Hankins Container Co., Flintkote Div. 1963 CCH NLRB
12, 815, 145 NLRB 640, Wall Tube & Metal Products (1958) 122 NLRB 13). Where,
as here, elements of all of the foregoing are present, domination and inter-
ference in the formation and administration is an inescapable conclusion.
It is noteworthy that the District did not, at any time, disavow the
actions of these designated management/ supervisory employees.
Further, by representations that the administration was willing
to discuss the median concept with an employee group led by these designated
management/ supervisory employees, by circulating the petition to
-21-
The
	test
	of
whether
	a
	challenged
organization
	is
	employer
	controlled
is
not
	objective,
	but
	rather
	subjective
	from
	the viewpoint
	of the
employees
(see
NLRB
	v.
	Thompson
Products
	(CA
6
1942)
	130 F. 	2d
	363,
	11
LRRM
521;
	NLRB
v.
Tapper
	Stove
	Co.
	(6th
C.
	1949)
	174 F. 	2d
1007,
	24
LRRM
2125). 	Domination
	con-
stitutes
	support
	or
	interference
with
	an
	employee
organization
	amounting
	to
control of
	the
	organization,
	(see
Hershey Metal
	Products
	Co. 	1948 21
LRRM
1237,
76
	NLRB
No. 	105 695)
	and
has
been found
	to
	occur
where
	supervisors
	distributed
authorization
cards
	and
urged
	signing
	them
	(NLRB
v.
	A & S
Electronic
	(CA
	2nd 1970)
423 F. 	2d
218,
	Cert.
	den.
	400
U.S.
	833),
	participated
	in
an
ad hoc
	committee
	to
draft
wage and
hour
	proposals
	(Doces
	Sixth
Ave.,
	Inc.
	(1976)
	225
	NLRB
114,
	1975 -
6
CCR NLRB
17,
	128)
	or
	formation of
	an
	employee
organization
was
	at
	the 	suggestion
of
	a company
official
and
with the aid of supervisors
	(Davis
	d/b/a/
	Queen
	City
Transport
	(1963) 	141
NLRB
	964)
	or supervisor
aided in the
membership
	campaign
and
	circulated petitions
	to
withdraw
support
	from
another
employee
organization
(Ardivine
Mfg. 	Co.
	(1965)
	- 	153
NLRB,
	No.
	72, 	Holland
Mfg. 	Co. 	129
NLRB
	776,
Enfcd.
	CA
3rd
1961 292 F. 	2d
	840,
	Lawcon
Milk
Co. 	1962 136
NLRB
538,
	Enfcd.
CA
6th
1963
at
	47
	LC
18,
	280)
	or
participated
	in
	the 	formation
	or administration
of
an employee
organization
	(Hankins
	Container
Co.,
	Flintkote
Div. 	1963
	CCR
NLRB
12,
	815,
	145
NLRB
640, 	Wall Tube &
Metal
	Products
	(1958) 	122
NLRB
13).
	Where,
as
	here,
	elements
	of
all
	of the 	foregoing
	are 	present,
	domination
and
	inter-
ference 	in the formation
and
administration
	is
	an
	inescapable conclusion
..
It 	is
noteworthy
that
	the
	District
	did not, 	at
	any
	time, 	disavow
	the
actions of these designated management/supervisory employees.
Further,
	by
	representations 	that 	the administration
was
willing
to discuss 	the
median concept with
an employee group
	led
by
these designated
management/supervisory employees, 	by
circulating the petition to
-21-

withdraw support from CSEA and by sending in a memo reflecting a landslide
in favor of this new group and loss of majority support by CSEA, these
management designated/ supervisory employees violated Section 3543.5(d) by
encouraging employees to join one organization over another.
The District argues that Jerry Lewis, the person who was elected
president of CSEA in June of 1977, was elected to the committee to prepare a
proposal of this new group and had been designated a management employee
and that this is proof that the group was not management dominated.
Mr. Lewis, the athletic equipment manager, was designated as management.
The record, however, reflected he was neither management nor supervisory. I
the companion unit case (Antelope Valley Joint Community College District,
supra) the District stipulated he was not supervisory, a stipulation consistent
with the record herein.
Mr. Lewis did not conceive the idea to form a new group, did not
participate in calling classified employees to the March 24th meeting, did
not circulate the petition to withdraw support from CSEA, was not elected
president of CSEA until after all of the activity complained of herein, and,
finally, his role on the committee that prepared the proposal was minor at
most. His peripheral role does not support the District's argument.
The District argues, likewise, that the presence of Donna Dinger, CSEA
president, at the March 24th meeting without comment is proof that the new
group was not employer dominated. While a more aggressive leader might
have protested in these circumstances, Ms. Dinger's presence with, or without
comment, does not negate the fact that the meeting was conceived, planned
and conducted by designated management/supervisory employees.
-22-
withdraw
support
	from
CSEA
and
	by
	sending
in
a
	memo
	reflecting
a
	landslide
in
	favor
	of
	this
new
group and
	loss
of majority
support
	by
CSEA,
	these
management
	designated/supervisory
employees
violated
	Section
	3543.S(d)
	by
encouraging
employees
	to
	join
one
organization
over
another.
The
District
argues
	that
	Jerry
Lewis,
,the
person
who
	was
	elected
president
of
	CSEA
in
June
of
	1977,
	was
	elected
	to
	the
	committee
	to
	prepare
	a
proposal of
	this
new
group
	and had
been
designated
	a management
	employee
and
	that 	this
	is
	proof
	that
	the
	group
	was
not
management
	dominated.
Mr.
	Lewis,
	th.e
athletic
	equipment manager, 	was
	designated as
	management.
The
record,
	however,
	reflected
he was
neither
management
nor
	supervisory. 	In
the
companion
unit
	case
	(Antelope
Valley
Joint
	Community
College
District,
supral the
District stipulated
he
was
	not supervisory,
	a
stipulation consistent
with
	the
record
herein.
Mr.
	Lewis
did 	not conceive
	the idea
	to
	form a new
group,
	did
not
participate in calling classified
	employees
	to
	the
March
	24th meeting,
	did
not
	circulate
	the
petition
	to withdraw
support
	from
CSEA,
	was
not
	elected
president of
CSEA
until after
all
	of 	the
activity
complained
of herein,
	and,
finally,
	his 	role
on
	the
	committee
	that
	prepared the proposal
was
	minor
	at
most. 	His
	peripheral role
does
not support 	the
District's
argument.
The
District
	argues, 	likewise, 	that
	the presence of
Donna
Dinger,
	CSEA
president, 	at
	the
	March
24th meeting without
	comment
	is
	proof
	that 	the
new
group was
not
	employer dominated. 	While a more
	aggressive leader
might
have
	protested in these circumstances,
	Ms.
	Dinger's presence with, 	or without
comment, 	does
not negate the fact 	that 	the meeting was
	conceived, 	planned
and conducted by
designated management/supervisory employees.
-22-

The District argues that until the EERB has determined the appropriate
unit and the unit has been recognized or certified, that employees have the
right to form organizations of their own choosing for purposes of representa-
tion in employer/ employee relations and that there is no restriction on who
can or cannot be included in such an organization; that absent exclusivity,
there is no restriction on who can or cannot be included for purposes of
representation under Section 3543. This interpretation is not correct.
Section 3540 contemplates that employees shall have the right to form organizations
of their choice and to select one employee organization as their exclusive
representative. Section 3543 provides the right to join or to refuse to
join an employee organization. Where, as here, an organization is conceived,
planned, and presented to employees by a group of designated management/
supervisory employees, the right to join or not to join that organization
is not an unfettered, free choice, but a choice dominated and interfered
with by the cloak of authority. Further, the interference by designated
management/ supervisory employees interferes with the employees right to
choose to join or not to join CSEA. Not only has the designated management/
supervisory group provided benefits to discourage membership in CSEA, but
they circulated petitions for withdrawal of support from CSEA. Obviously,
Section 3543 does not contemplate a right to join or not to join that has
been so influenced by management/ supervisory that no free choice can be
exercised.
The District's arguments are without merit.
-23-
The
District
	argues
	that
	until
	the
EERB
has determined
	the
appropriate
unit
	and
	the
	unit
	has
been
recognized
	or
	certified,
	that
	employees
	have
	the
right
	to
	form
organizations of
	their
own
choosing
	for
	purposes
	of
	representa-
tion in
employer/employee
relations
	and
	that
	there
	is
no
	restriction
	on
	who
can
or
cannot
	be
	included
	in
	such
an
	organization;
	that
	absent
	exclusivity,
there
	is
no
	restriction
on
who
	can
or
cannot
be
	included
	for
	purposes
	of
representation
	under
	Section
	3543.
	This
	interpretation
	is
not
	correct.
Section
	3540
	contemplates
	that
	employees
	shall
have
	the
	right
	to
	form
	organizations
of
	their
	choice
and
	to
	select
one employee
organization
as
	their
	exclusive
representative.
	Section
	3543
provides the
	right
	to
	join
or to
	refuse 	to
join
an
	employee
organization.
	Where,
	as here,
	an
organization
	is
	conceived,
planned,
	and
	presented to
	employees by
a
	group
	of designated
management/
supervisory
employees,
	the
right
	to
	join
or not 	to
	join that organization
is
not
	an
unfettered, 	free
	choice, 	but
	a
	choice
	dominated and
	interfered
with
by
	the cloak of
authority. 	Further, 	the
	interference
by
designated
management/supervisory
employees
	interferes
	with the
	employees
	right 	to
choose
	to join
or not 	to
	join
CSEA.
	Not
	only has
	the designated
management/
supervisory
group
	provided
benefits
	to discourage
membership
	in
CSEA,
	but
they
	circulated petitions
	for
withdrawal of support
	from
CSEA.
	Obviously,
Section
	3543
	does
not contemplate
	a
	right
	to
	join
or not 	to
	join that
	has
been
	so
	influenced
by management/supervisory
	that
	no
	free
	choice can be
exercised.
The
District's
	arguments
	are without merit.
-23-

REMEDY
Section 3541.5(c) provides that :
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.
The remedy provided herein is designed to effectuate the purposes of
the EERA. The cease and desist order is to prohibit future acts on the part
of the District or the administration which would impinge upon the rights of
employees pursuant to Sections 3540 and 3543 to join or not to join employee
organizations. 	Because the District and Administration have authority to
direct the activities of management and supervisory employees, the order is
designed to require the District to direct the activities of management and
supervisory employees so they will not impinge upon the rights of employees
who are not management, supervisory or confidential to assure that the rights
of employees pursuant to Sections 3540 and 3543 are exercised in a free
and unfettered fashion.
It would be inappropriate to unwind the pay increases granted as a
result of representation by management designated/ supervisory employees. 	Such
an action would merely serve to punish rank and file employees for unlawful
activities on the part of management or supervisory employees. It would also
be inappropriate to direct that employees give or withhold support for CSEA
because their signatures had been unlawfully obtained on a petition to withdraw
support from CSEA by management or supervisory employees. The purpose of the
EERA is to permit an unfettered choice by employees. The damage that has been
done cannot be erased. However, by requiring that the order in this matter be
posted, employees are given notice that management and supervisory employees
-24-
REMEDY
Section
	3541.5(c)
	provides
	that:
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.
The
	remedy
provided
	herein
	is
	designed to
	effectuate
	the
purposes
	of
the
	EERA.
	The
	cease
and
	desist
	order
	is
	to
	prohibit
	future
	acts
	on
	the
	part
of
	the
District
	or the
	administration
which
would
	impinge
upon
	the
	rights
	of
employees
	pursuant 	to Sections
	3540
and
	3543
	to
	join
or
not 	to
	join
employee
organizations.
	Because
	the
	District
	and
	Administration
have
authority
to
direct
	the
	activities
of
management
	and
	supervisory
	employees,
	the
	order
	is
designed
	to
	require
	the
District
	to
	direct
	the
	activities
of
management
	and
supervisory
employees
	so
	they
will
not
	impinge
	upon
	the
	rights
	of
employees
who
	are
not
	management,
	supervisory or
confidential
to assure
	that
	the
	rights
of
	employees
pursuant
	to Sections
	3540 and
	3543
are exercised in
a
	free
and
	unfettered
	fashion.
It
	would be
	inappropriate
	to
	unwind
	the
pay
increases
	granted as
	a
result
	of
	representation
by management
	designated/supervisory
employees.
	Such
an
action
would
merely
serve to
punish rank
and
	file
	employees
	for unlawful
activities
	on
	the
part of
management
	or supervisory
employees.
	It
would
	also
be
inappropriate
	to
	direct 	that
	employees
	give or withhold support 	for
	CSEA
because
	their
	signatures
had been
unlawfully obtained
on
	a
	petition
to withdraw
support
	from
CSEA
by management
	or supervisory
employees.
	The
purpose
of 	the
EERA
is
	to permit
	an
unfettered choice
by employees.
	The damage
	that
	has 	been
done
	cannot be
erased.
	However, 	by
requiring that 	the order in this matter
be
posted, 	employees
	are given notice that
management and
	supervisory employees
-24-

have acted in an unlawful manner and are being ordered to cease and desist
from such unlawful activity. By posting, it is hoped that employees will
learn of the unlawful nature of the actions of supervisory and management
employees and, with that knowledge, be able to exercise a free and unfettered
choice in the exercise of rights under the EERA henceforth, thus effectuating
the purpose of the EERA. 14
In a recent decision of the Court of Appeal, Fifth Appellate District, 15the
Court affirmed a remedy to an unfair labor practice under the Agricultural Labor
Relations Act wherein the employer was required to post, mail, and read a
notice to employees. CSEA requests the mailing and reading of the order in
this case as well as disestablishment of the management/ supervisor founded
organization. Because we are dealing with a public school employer with a
relatively stable working force and bulletin boards where notices to employees
are traditionally posted, the expense of mailing notices is found to be
inappropriate in this case.
The reading of notices to employees is a remedy that has overtones of
humiliation. Because the record does not support a finding that Dr. Stine has
specific knowledge, it would be inappropriate to require that he read a notice
to employees in this case.
Disestablishment in relationship to non-management, non-supervisory
employees is essentially accomplished by the order. A direct order of
disestablishment against the competing organization is not possible because
that organization was not a party to the proceedings.
Based on the nearly identical language of the LMRA, as amended, Section 10(c),
posting has been held to effectuate the purposes of that Act. See Pennsylvania
Greyhound Lines, Inc. v. NLRB, 1 LRRM 303 (1935) Enforced at 303 US 261, 2 LRRM
600 (1938); NLRB v. Empress Publishing Co. 312 US 426, 8 LRRM 415 (1941) .
Pandol and Sons v. ALRB and UFW, 5 Civ. 3446, February 21, 1978, Daily Journal
Appellate Report, March 7, 1978.
-25-
have acted 	in an unlawful manner and are being ordered to cease and desist
from such unlawful activity. 	By posting, 	it is hoped 	that employees will
learn of the unlawful nature of the actions of supervisory and management
employees and, 	with that knowledge, 	be able to exercise a 	free and unfettered
choice in the exercise of rights under the EERA henceforth, 	thus effectuating
the purpose of the EERA. 14
In a recent decision of the Court of Appeal, 	Fifth Appellate District, 15 the
Court affirmed a remedy to an unfair labor practice under the Agricultural Labor
Relations Act wherein the employer was required to post, 	mail, 	and read 	a
notice to employees. 	CSEA requests the mailing and reading of the order 	in
this case as well as disestablishment 	of the management/supervisor founded
organization. 	Because we are dealing with a public school employer with a
relatively stable working force and bulletin boards where notices to employees
are traditionally posted, 	the expense of mailing notices is found to be
inappropriate in this case.
The reading' of notices to employees is a remedy that has overtones 	of
humiliation. 	Because the record does not 	support a 	finding that Dr. 	Stine has
specific knowledge, 	it would be inappropriate to 	require that he read a 	notice
to 	employees in this case.
Disestablishment in relationship to non-management, non-supervisory
employees 	is essentially accomplished by the order. 	A direct order of
disestablishment against the competing organization is not possible because
that organization was not a party to the proceedings.
14	14 Based on the nearly identical language of the LMRA, 	as amended, 	Section 	l0(c),
posting has been held to effectuate the purposes of that Act. 	See Pennsylvania
Greyhound Lines, 	Inc. 	v. 	NLRB, 	1 LRRM 303 	(1935) 	Enforced at 	303 US 261, 	2 LRRM
600 	(1938); 	NLRB v. 	Empress Publishing Co. 	312 US 426, 	8 LRRM 415 	(1941).
15 Pandol and Sons v. 	ALRB and UFW, 	5 Civ. 	3446, 	February 21, 1978, 	Daily Journal
Appellate Report, 	March 7, 1978.
-25-

PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law and the entire
record in this case, and pursuant to Government Code Section 3541.5(e), it
is hereby the Proposed Order that the Antelope Valley Community College
District, its governing board, superintendents, and other agents and
representatives shall:
A. CEASE AND DESIST FROM:
Dominating and/or interfering with the formation or
administration of any classified employee organization.
2 . 	Permitting employees who are management or supervisory
to dominate and/or interfere with the formation or
administration of any classified employee organization.
3. 	In any way encouraging employees to join any employee
organization in preference to another.
4 . 	Permitting employees who are management or supervisory
to in any way encourage employees to join any employee
organization in preference to another.
5. 	From conferring, discussing, consulting, meeting and/ or
negotiating with any officer or representative of the
Antelope Valley College Classified Employees or any other
employee organization which is administered by management
or supervisory employees and attempts or purports to
represent employees who are not management or supervisory
relative to any matter within the scope of representation
pursuant to Government Code Section 3543.2.
-26-
PROPOSED
ORDER
Upon
	the
	foregoing
	findings of
	fact,
	conclusions.of
law
and
	the
	entire
record
	in
	this
	case,
	and
	pursuant
	to
	Government Code
	Section
	3541.5(e),
	it
is
	hereby
the
	Proposed Order
	that
	the
Antelope
Valley
Community
College
District,
	its
	governing
board,
	superintendents,
	and
other
agents
	and
representatives
	shall:
A.
	CEASE
AND
DESIST
FROM:
1.	1.	
Dominating
and/or
	interfering
with
the
	formation
or
administration 	of
any
classified
employee
organization.
2.	
Permitting
employees
	who
	are
management
or 	supervisory
to
	dominate
and/or
	interfere
with
	the
	formation
	or
administration
of
any
classified
employee
organization.
3.	
In
any
way
	encouraging
employees
	to
	join
any
employee
organization
	in
preference to another.
4.	
Permitting
employees
who
	are
management
or
	supervisory
to
	in
any
way
encourage
	employees
	to
	join
any employee
organization in preference to another.
5.	
From
conferring, 	discussing, 	consulting,
	meeting
and/or
negotiating
with
any
officer
or
	representative
of the
Antelope Valley College
Classified
Employees
	or
any
other
employee
organization
which
	is
administered
	by management
or supervisory
employees and
attempts or purports 	to
represent
	employees
who
	are not
	management
	or supervisory
relative
	to
	any
matter within the
	scope
	of representation
pursuant to
	Government Code
	Section 3543.2.
-26-

B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE
THE POLICIES OF THE ACT:
1. Within 30 days, notify all management and supervisory
employees in writing that they are not to dominate or
interfere with the formation or administration of any
employee organization which represents employees who
are not management or supervisory relative to matters
within the scope of representation pursuant to
Government Code Section 3543.2 and that they will not
in any way interfere with the rights of employees who
are not management or supervisory to join or not to
join any employee organization in preference to another.
2 . 	Within ten workdays, prepare and post copies of this order
in each of its buildings, and work sites for twenty (20)
workdays in conspicuous places, including all locations
where notices to employees are customarily posted.
3. At the end of the posting period, notify the Regional
Director of the Public Employment Relations Board of the
actions it has taken or intends to take to comply with
this order.
C. IT IS FURTHER ORDERED THAT:
1. The charge that CSEA violated Section 3543.6(a) is
DISMISSED.
2. The charge that the District violated Section 3543.5(a) is
DISMISSED .
-27-
B.
	TAKE THE
FOLLOWING
AFFIRMATIVE
ACTIONS DESIGNED
TO
EFFECTUATE
THE
POLICIES
OF THE
ACT:
1.	
Within
	30
	days,
	notify
all
management and
	supervisory
employees
	in
writing
	that
	they
are
not 	to
	dominate
	or
interfere
with the
	formation
	or administration of
any
employee
organization
which
	represents
	employees
who
are
not
management
	or supervisory
relative
	to matters
within the
	scope
of
	representation
pursuant 	to
Government Code
	Section
	3543.2
and
	that
	they
will
not
in
any
way
	interfere
with the
	rights
	of
employees
who
are
not
	management
or
	supervisory to
	join
or not 	to
join
any employee
organization in
	preference
	to
	another.
2.	
Within
	ten
workdays,
	prepare
and
	post 	copies of
	this
	order
in
each
of
	its
	buildings,and
work
sites
	for
	twenty 	(20)
workdays
	in
	conspicuous
	places,
	including
all
	locations
where
notices
	to
	employees
are
	customarily posted.
3.	
At
	the
	end
of the posting period,
	notify
	the
Regional
Director
	of 	the Public
	Employment
	Relations
	Board
of the
actions
	it
	has taken
or intends 	to 	take to
	comply
with
this
	order.
C. 	IT 	IS
	FURTHER
ORDERED
THAT:
1.	
The
charge
	that
	CSEA
violated
	Section 3543.6(a)
	is
DISMISSED.
2.	
The
charge
	that 	the
	District violated Section 3543.S(a)
	is
DISMISSED.
-27-

3. 	The charge that the District violated Section 3543.5(d)
as the result of the March 15, 1977 meeting, or by other
action of Dr. Stine, is DISMISSED.
The parties have twenty (20) calendar days after service of this Proposed
Decision in which to file exceptions in accordance with California
Administrative Code, Title 8, Part III, Section 32300. If no party files
timely exceptions, this Proposed Decision will become final on April 17, 1978
and a Notice of Decision will issue from the Board.
Dated: March 22, 1978
'Sharrel J. Wyatt
Hearing Officer
-28-
3.	
The
charge
	that
	the
District
violated
	Section
	3543.S(d)
as
	the
	result
	of the
March
15,
	1977
meeting,
	or
by
other
action
of
Dr.
	Stine,
	is
	DISMISSED.
The
	parties
have
	twenty
	(20)
	calendar
days
	after
service
of
	this
	Proposed
Decision
	in
which
to
	file
	exceptions
	in
accordance
with
	California
Administrative
	Code,
	Title
8, 	Part
	III,
	Section
	32300.
	If
no
	party
files
timely exceptions,
	this
	Proposed
Decision
will
become
	final
	on
April 17,
	1978
and a
	Notice
of
Decision
will
	issue
	from
the
Board.
Dated:
	March 22, 	1978
'Sharrel
J.
	Wyat
Hearing
Officer/
t 1
;1
	/
-28-