Novato Unified School District (PERB 0210E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
NOVATO FEDERATION 	OF TEACHERS,
LOCAL 1986, AFT, AFL-CIO,
Charging 	Party,
v.
NOVATO 	UNIFIED SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-473
PERB Decision No. 	210
April 30, 	1982
Appearances: 	Robert J. 	Bezemek, 	Attorney 	(Bennett & Bezemek)
for Novato Federation of Teachers, 	Local 1986, AFT, AFL-CIO;
Diana K. 	Smith, 	Attorney 	(Breon, 	Galgani 	and Godino) 	for Novato
Unified 	School 	District.
Before Gluck. 	Chairperson; 	Jaeger 	and Tovar, Members.
DECISION
This 	case 	is 	before 	the 	Public Employment 	Relations 	Board
(PERB or 	Board) 	on exceptions 	filed 	by 	the Novato Unified
School District 	(District) 	to 	the 	hearing 	officer's 	attached
proposed 	decision 	finding 	that 	the 	District 	violated
subsections 	3543.5(a) 	and 	(b) 	of 	the Educational Employment
Relations Act 	(EERA or A c t ) 1 by removing 	certificated
1The 	EERA 	is 	codified 	at 	section 	3540 	et 	seq. 	of 	the
Government Code. 	Unless 	otherwise 	indicated, 	all citations 	are
to 	the Government Code.
Subsections 3543.5(a) 	and 	(b) 	provide:
It 	shall 	be 	unlawful 	for 	a public 	school
employer:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
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employee George de 	Tuncq from his 	position 	as 	chair 	of 	the
social 	studies 	department 	at Novato High 	School 	and
transferring 	him 	to 	another 	school 	because 	of 	his 	participation
in 	protected 	activities.2 The 	District 	also 	excepts 	to 	his
proposed 	remedy.
The Board 	has 	reviewed 	the 	record 	and 	finds 	that 	the
hearing 	officer's 	procedural 	history 	and 	findings 	of 	fact 	as
set 	forth 	in 	the 	proposed 	decision 	are 	free 	from prejudicial
error 	and 	are 	adopted 	by 	the 	Board 	itself.
For 	the 	reasons 	explained 	below, 	the 	Board 	concludes 	that
the District violated subsection 	3543.5(a), 	but dismisses 	that
portion 	of 	the 	charge 	alleging 	a 	violation 	of 	subsection
3543.5(b).3
on employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2 The Novato Federation of Teachers, 	Local 1986, 	AFT,
AFL-CIO 	(NFT or 	Federation) 	did 	not 	except 	to 	the 	hearing
officer's dismissal of 	that portion of 	the 	charge 	it 	filed
alleging 	that 	the 	District 	violated 	the Act 	by 	not 	providing
the 	employee 	organization 	with 	information 	regarding
involuntary 	transfers 	of 	personnel, 	thereby preventing 	the NFT
from 	fulfilling 	its 	obligations 	as 	an 	exclusive 	representative.
3This 	case 	is 	properly 	before 	this 	Board, 	even 	though 	we
find 	the 	initial 	charge 	filed 	by 	the NFT 	to 	be 	somewhat
deficient. 	All 	issues 	have 	been 	raised 	and 	fully 	litigated
during 	the 	course 	of 	the 	hearing. 	See 	Prohoroff 	Poultry Farms
22

DISCUSSION
This 	case 	presents 	an opportunity 	for 	the 	Board 	to 	clarify
the 	principles 	articulated 	by 	this 	Board 	in Carlsbad 	Unified
School District 	(1/30/79) 	PERB Decision No. 	89, 	particularly 	in
light of 	the National Labor 	Relations Board 	(NLRB) 	decision 	in
Wright Line f 	A Division of Wright Line, 	Inc. 	(8/27/80) 	251 NLRB
No. 	150 	[105 	LRRM 	1169].
In Wright Line, 	supra, 	the employer was 	found 	to have
violated subsections 8 	(a) 	(1) 	and 8 	(a) 	(3) 	of 	the National
Labor 	Relations Act 	(NLRA)4 when 	it discharged 	an employee,
allegedly 	for 	violating 	a 	rule 	against 	knowingly 	altering 	or
v. 	Agricultural Labor 	Relations Board 	(1980) 	107 Cal App3d 	633
[ 	Cal Rptr 	]; 	NLRB v. 	Iron Workers, 	Local 	433, 	(1979)
600 F.2d 	770 	]10] 	LRRM 3119] .
4 The National Labor 	Relations Act 	is 	codified 	at 	29
U.S.C, 	subsection 151-68.
Section 8(a) 	states:
It 	shall 	be 	an unfair 	labor 	practice 	for 	an
employer 	-
(1) 	to 	interfere with, 	restrain or coerce
employees 	in 	the 	exercise 	of 	the 	rights
guaranteed 	in 	section 	7,
(3) 	by discrimination 	in 	regard 	to hire 	or
tenure 	of 	employment or 	any 	term or
condition 	of 	employment 	to 	encourage 	or
discourage membership 	in 	any labor
organization 	. . . .
W
• 	• 	•
3

falsifying production 	time 	reports, 	payroll 	records, 	and 	time
cards, 	since 	the General Counsel 	had made 	a prima 	facie 	showing
that 	union 	activity was 	a motivating 	factor 	in 	the 	employer's
decision 	to discharge 	the 	employee 	and 	the 	employer 	failed 	to
demonstrate 	that 	it would 	have 	taken 	the 	same 	action 	against
the 	employee 	in 	the 	absence of 	his 	union 	activity.
In Carlsbad, 	supra, 	the District was 	found 	to have violated
subsections 	3543(a) 	and 	(b) 	when 	it 	transferred 	certain members
of Oceanside-Carlsbad Federation of Teachers, 	CFT/AFT, 	AFL-CIO,
Local 	1344 	from 	the 	high 	school 	to a 	junior 	high 	school.
Carlsbad, 	supra, 	and Wright Line, 	supra, 	are not mutually
exclusive. 	On 	the 	contrary, 	both 	have 	developed 	a 	but-for 	test
to 	assist 	in 	analyzing 	charges 	primarily 	of 	discriminatory
conduct.5
We noted 	in Carlsbad, 	supra 	that 	subsection 	3543.5(a)
essentially combined 	the provisions of 	subsections 	8(a) 	(1) 	and
8(a) 	(3) 	of 	the NLRA.6 We concluded 	that 	unlawful motive did
5The 	California 	Supreme Court 	has 	approved 	a 	similar
but-for 	analysi
1s 	citing Wright Line. 	Martori 	Brothers
Distributors 	v. 	Agricultural 	Labor 	Relations Board 	(1981) 	29
Cal.3d 	721.
1
6Generally, 	with 	respect 	to 	"intent" 	the NLRB and 	federal
courts have drawn a distinction between 	sections 	8(a) 	(1) 	and
8(a) 	(3). 	While unlawful 	intent appears not to be a necessary
element of an 	interference charge under 	8 (a) 	(1) 	(Gorman, 	Basic
Test of Labor Law 	(West 1976) 	p. 	132 et seq.), 	it has generally
been 	held 	to 	be 	a 	necessary 	ingredient 	in 	finding 	a violation
of section 8(a) 	(3). 	Carlsbad, 	supra, 	pages 6 and 7. 	Gorman,
Basic Test on Labor 	Law 	(West 1976) 	p. 	132 	and 	137 	respectively,
4

not 	need 	to 	be 	affirmatively proven 	in all 	cases 	involving
alleged violations of subsection 3543.5(a). 	We continue 	to
uphold 	such 	a 	conclusion. 	A prima 	facie 	charge 	alleging
interference 	was 	established 	in Carlsbad 	by 	facts 	showing 	that
there was a 	nexus 	(connection) 	between 	the 	employer's 	conduct
and 	the 	exercise 	of 	a 	right protected 	by EERA with 	resulting
harm or 	potential 	harm to 	that 	right. 	A violation was 	found
because 	the 	harm 	to 	employee 	rights 	outweighed 	the 	employer's
proffered 	business 	justification.7
Protected 	activity was 	a motivating 	factor 	in 	the 	District's
action
Here, 	the 	charge 	alleges 	that 	the District's 	removal of
de Tuncq as 	the 	chair 	of 	the 	social 	studies 	department 	and 	his
involuntary transfer, 	first, 	to a permanent 	substitute pool,
then 	to Sinaloa Junior High 	School 	as 	a permanent 	substitute,
and 	finally 	to 	San 	Jose 	Junior 	High 	School 	constituted 	a
reprisal 	against de Tuncq because 	of his 	activities 	as 	a 	union
representative.
The 	NLRB 	and 	courts 	have 	generally 	considered 	employer
conduct 	such 	as 	charged 	here 	to be 	covered 	by
7Unlike 	Wright Line 	and 	the 	instant 	case, 	in 	interference
cases where motive/intent 	is 	not an 	issue, 	the charging party
need 	only make 	a prima 	facie 	showing 	that 	the 	respondent's
conduct 	tends 	to or 	does 	result 	in harm to employee 	rights
granted 	under 	EERA. 	The 	respondent 	then 	has 	the 	burden of
producing 	an 	operational 	necessity 	justification. 	The Board
will 	then 	balance 	the 	competing 	interests 	of 	the 	parties 	and
resolve 	the 	charge 	accordingly.
55

section 8(a) 	(3). 	These 	forums have 	recognized 	the 	volitional
nature 	of 	discriminatory conduct. 	To 	establish 	a 	violation
under 	section 8(a) 	(3), 	it must be proven that 	the employee was
engaged 	in protected 	activity 	and 	that 	the 	employer's 	conduct
was 	motivated 	by 	that 	participation. 	Radio Officers 	Union 	v.
NLRB 	(1954) 	347 U.S. 	17 at pp. 	43-44 	[33 LRRM 2414]. 	Because
retaliatory conduct 	is 	inherently 	volitional 	in 	nature, 	we
conclude 	that 	the 	same 	requirements 	are 	appropriate 	under 	EERA
where 	it 	is 	alleged 	that 	the 	school 	employer 	has 	taken
reprisals 	against 	employees 	for 	participation 	in protected
activity. 	Accordingly, 	unlawful motive 	is 	the specific 	nexus
required 	in the establishement of 	a prima 	facie 	case.
In Carlsbad, 	the Board 	recognized 	that direct proof 	of
motivation 	is 	rarely possible, 	since 	motivation 	is 	a 	state 	of
mind which may 	be 	known only 	to 	the 	actor. 	Thus, 	the Board
concluded 	that 	unlawful motive 	can 	be 	established 	by
circumstantial 	evidence 	and 	inferred 	from 	the 	record 	as 	a
whole. 	Carlsbad, 	supra, 	at p. 	11; 	Republic Aviation Corp. 	v.
NLRB 	(1945) 	324 U.S. 	793 	[16 LRRM 620; 	Radio Officers Union v.
NLRB, supra, at pp. 40-43.
To 	justify 	such 	an 	inference, 	the 	charging 	party must 	prove
that 	the 	employer 	had 	actual 	or 	imputed 	knowledge of 	the
employee's protected 	activity. 	NLRB v. 	South 	Shore 	Hospital
(1978 	1st Cir.) 	571 F.2d 677 	[97 LRRM 3004]. 	Knowledge along
with 	other 	factors may 	support 	the 	inference 	of 	unlawful
66

motive. 	The 	timing 	of 	the 	employer's 	conduct 	in 	relation 	to
the 	employee's performance 	of protected 	activity, 	the
employer's 	disparate 	treatment 	of 	employees 	engaged 	in 	such
activity, 	its 	departure 	from established 	procedures 	and
standards when dealing with 	such 	employees, 	and 	the 	employer's
inconsistent 	or 	contradictory 	justifications 	for 	its 	actions
are 	facts 	which may 	support 	the 	inference 	of 	unlawful 	motive.
In general, 	the 	inference can be drawn 	from a review of 	the
record as a whole. 	See Radio Officers, 	supra.
In 	the 	instant case, 	the Novato Federation of Teachers
established 	and 	the 	hearing 	officer 	found 	that Mr. 	de 	Tuncq had
a 	strong 	history 	of 	activist 	involvement 	with 	the 	Novato
Federation of 	Teachers, 	which 	had 	been 	the 	exclusive
representative of 	the 	teachers 	since 	1976. 	Since 	that 	time
de Tuncq had 	served 	as a grievance 	officer, 	a member 	of 	the
grievance committee, 	and 	a building 	representative. 	The
District 	concedes 	they were 	aware 	of 	de 	Tuncq's 	union 	activity.
The District's transfer 	of de Tuncq on May 28, 	1980, 	was
approximately related 	in time 	to three events which lead to
direct 	confrontations 	between 	him 	and 	principal 	Barry Conner:
1. 	The most 	immediate 	occurred 	in January of 	1980. 	It
involved 	the 	imposition 	of 	a 	new 	requirement 	by Principal
Conner 	to enter 	absences 	and 	tardies 	on 	report 	cards 	- 	although
none 	of 	the 	other 	high 	schools 	in 	the 	District had 	a 	similar
requirement, 	de 	Tuncq 	strongly objected 	to making 	the 	new duty
77

mandatory 	not 	only 	because 	the 	data was 	not 	consistent 	class 	to
class or 	teacher 	to 	teacher, 	but also because 	it represented 	an
increase 	of 	work 	for 	teachers. 	To voice 	this position,
de 	Tuncq 	and 	another 	teacher 	distributed 	a memo 	stating 	their
objections 	as well 	as 	charging 	that 	the 	new duty wasn't
negotiated. 	On January 24, 	1980, 	de Tuncq sent another memo to
the 	faculty 	stating 	that 	this 	new duty 	"was 	not 	a 	'must.'"
On March 	24, 	1980, 	de Tuncq received his annual performance
evaluation 	and 	was 	given 	the 	highest 	rating 	of 	"one-effective"
in all 	areas 	except record 	keeping, 	in which he 	received 	a
"needs-to-improve." 	This was prompted 	by de Tuncq's 	refusal 	to
follow the new procedure. 	Two days later, 	on March 	26, 	in
response 	to 	the 	low rating, 	de Tuncq wrote 	a memo to Conner 	in
which 	he 	reaffirmed 	his 	opposition 	to 	the 	policy change 	and
stated 	that 	he 	would 	continue 	to defy 	the 	new 	recording
procedure. 	A little over 	a month 	later, 	on May 14, 	de Tuncq
was 	notified 	by Conner 	that 	he 	was 	being 	relieved 	as
departmental 	chair 	and 	that 	he might 	be 	transferred.
2. 	de Tuncq's vocal 	representation of 	unit 	employees
during 	a 	successful 	grievance 	he 	filed 	on 	behalf 	of 	the
Federation 	against 	the District 	for 	its 	failure 	to 	bring 	the
size 	of 	classes 	into 	conformity with 	the 	size 	established 	under
the 	collective 	bargaining 	agreement, 	and
3. 	A dispute 	over 	teaching 	basic 	language 	skills, 	where
Conner 	had 	to 	retreat 	from his 	initial 	position.
88

The District's 	unlawful 	motivation 	in 	transferring 	de 	Tuncq
is 	further 	inferred 	by 	the 	fact 	that 	de Tuncq had 	generally 	and
consistently 	received 	good 	evaluations.8 As 	we 	have
mentioned, 	de Tuncq's annual 	performance 	evaluation 	from
principal Conner 	on March 	24, 	1980, 	reflected 	the highest 	rate
of 	"one-effective" 	in all 	areas. 	The only exception was 	in
record 	keeping, 	in which 	he 	received 	a 	"needs-to-improve." 	As
noted 	above, 	this was 	prompted 	by de Tuncq's refusal 	to 	follow
a 	procedure 	Conner 	wanted 	implemented 	but 	which 	de 	Tuncq
considered 	new and 	strictly 	optional 	to 	the 	teachers. 	On
May 12, 	1980, 	Conner 	first 	told de Tuncq he was 	relieving him
of 	his 	duties 	as 	department 	chair 	and 	thinking 	of 	transferring
him out of Novato High School. 	On May 	28, 	1980 	de Tuncq was
officially 	informed 	of 	the 	transfer.
8On 	March 	19, 	1979 	Conner 	evaluated 	de Tuncq
"one-effective" 	in all areas where 	the 	numerical 	rating 	is 	used,
In order 	to 	fully 	understand 	the 	significance 	of 	these
evaluations, 	one must 	be 	familiar 	with 	the 	evaluation system 	in
the 	District. 	Teachers 	are 	numerically 	rated 	in 	three main
areas: 	(1) 	instructional competence, 	(2) 	classroom management
and 	(3) 	professional qualities. 	Each of 	these 	areas 	is broken
down 	into 	several 	factors. 	Instructional 	competence 	is 	broken
into 	relations with 	students, 	teaching on 	the 	student's 	level,
instruction procedures, 	and knowledge of 	subject matter.
Classroom management 	is 	broken 	into classroom control, 	care 	and
appearance 	of classroom, 	and 	reports 	and 	records. 	Professional
qualities 	include 	cooperation 	with 	staff, 	professional
self-improvement, 	relations with parents, 	and 	interest 	in extra
curricular 	activities. 	The 	numerical 	ratings 	are
"one-effective; 	two-needs 	to improve; 	and 	three-not observed."
In addition, 	the 	evaluation 	form 	includes 	an area where 	the
evaluator 	may 	enter 	written 	comments 	about 	the 	evaluatee.
99

In addition, 	it was 	revealed at 	the hearing 	that Mr. 	Conner
began compiling 	a secret 	file only on Mr. 	de Tuncq. 	The 	file
contained 	information 	regarding 	union activities 	as 	well 	as 	job
performance. 	Conner 	testified 	he 	could 	not 	recall when he
began 	the 	file.9 The 	majority 	of 	the 	information 	was 	placed
in 	the 	file 	only 	after 	the 	events 	in March 	even 	though many 	of
the parental complaints, 	class drops, 	and 	transfers occurred
months 	earlier.
Conner 	testified 	that 	he 	usually 	kept 	records 	of 	parental
complaints 	so 	that 	he 	could 	later 	discuss 	the 	matter 	with 	the
teacher 	if 	it was at all serious. 	Conner, 	however, 	did not
investigate or 	discuss 	with 	de Tuncq 	the 	merits of 	several 	of
the 	parental 	and 	student 	complaints. 	This was 	not done 	even
though many of 	the 	complaints 	dealt with 	aspects 	of 	teaching
which Conner 	had 	praised 	in de Tuncq's evaluation, 	written 	very
shortly 	before 	these 	complained-of 	events.
9Conner's 	testimony 	on 	the 	maintenance 	of 	secret 	files
was 	inconsistent 	and 	contradictory. 	Initially Conner 	testified
that 	he 	did 	not maintain 	similar 	files 	on 	other 	teachers.
Later, 	when 	the District's counsel questioned 	him, 	Conner 	said
that 	a file was 	kept on every employee. 	He, 	however, 	did not
clearly 	indicate 	when he 	said 	this 	whether 	he 	was 	referring 	to
the 	school's official personnel 	files 	or 	"secret 	files." 	From
his previous 	testimony, 	we 	infer 	that he meant 	that 	an official
personnel 	file was 	kept on every employee, 	but de Tuncq was 	the
only 	one 	on whom Conner 	maintained 	a 	secret 	file.
10

Most 	of 	the material 	contained 	in 	the 	secret 	file 	had 	never
been 	shown 	to or 	discussed 	with 	de 	Tuncq as 	is 	required 	under
Education 	Code 	section 	44031.10
The 	California 	Supreme 	Court 	has 	recently 	interpreted 	this
section 	to mean 	that:
Unless 	the 	school 	district 	notifies 	the
employee 	of 	such 	derogatory 	material 	within
a 	reasonable 	time 	of 	ascertaining 	the
materials, 	so that 	the 	employee may gather
pertinent 	information 	in his defense, 	the
district 	may 	not 	fairly 	rely 	on 	the material
in 	reaching 	any 	decision 	affecting 	the
employee's 	employment 	status. 	Miller 	v.
Chico Unified School District 	(1979) 	24
Cal.3d 703, 713, 157, Cal.Rptr 72.
10Education 	Code, 	section 44031, 	states 	in
relevant part:
Materials 	in personnel 	files 	of 	employees
which 	may 	serve 	as 	a 	basis 	for 	affecting 	the
status 	of 	their 	employment 	are 	to be made
available 	for 	the 	inspection of 	the 	person
involved.
Every 	employee 	shall 	have 	the 	right 	to
inspect 	such materials 	upon 	request,
provided 	that 	the 	request 	is made 	at 	a 	time
when 	such person 	is 	not 	actually 	required 	to
render 	services 	to 	the 	employment 	district.
Information of 	a derogatory nature, 	except
material 	mentioned 	in 	the 	second 	paragraph
of 	this section, 	shall 	not be entered 	or
filed 	unless 	and 	until 	the 	employee 	is 	given
notice 	and 	an opportunity 	to 	review and
comment 	thereon. 	An 	employee 	shall 	have 	the
right 	to enter, 	and have 	attached 	to any
such derogatory 	statement, 	his 	own comment
theron. 	Such 	review 	shall 	take place 	during
11
• 	• 	•

The 	fact 	that 	the 	District 	violated 	the 	above-mentioned
Education 	Code 	provision 	as 	well 	as 	its 	own 	official 	policy11
by 	not 	notifying Mr. 	de Tuncq of 	the majority of 	the complaints
filed 	against 	him when 	the 	District 	in 	fact 	claimed 	to have
relied 	on 	that 	information 	for 	his 	transfer 	is 	evidence 	of
improper motive. 	Far Mar Co. 	(1977) 	231 NLRB 814 	[96 LRRM
1133]. 	Therefore, 	it 	is 	not 	inappropriate 	to conclude 	that 	the
file was 	kept 	for 	the 	purpose 	of 	building 	a case 	against
de Tuncq.
The 	Board 	finds 	further 	support 	for 	an 	inference 	of
unlawful 	motive 	from 	the District's 	proffering 	of 	various 	and
shifting 	justifications 	for 	its 	actions. 	These 	are 	amply 	set
normal business hours, 	and 	the employee
shall 	be 	released 	from duty 	for 	this purpose
without 	salary 	reduction.
11The 	District's official 	policy 	(policy 	4100) 	on
personnel 	files 	reads 	in relevant part 	as 	follows:
C. 	Anonymous material 	shall 	not 	be placed
in personnel 	files.
D. 	Information or 	statements 	of 	a
derogatory 	nature, 	except material obtained
for 	the purposes of 	hiring, 	shall not be
entered 	or 	filed 	unless 	and 	until 	the
employee 	is 	given 	notice 	and 	an opportunity
to 	review 	and 	comment 	thereon within 	three
(3) 	days. 	An employee shall have 	the 	right
to enter, 	and 	have 	attached 	to any 	such
derogatory 	statement, 	his 	own comments
thereon. 	Such 	review 	shall 	take place
during 	normal school hours, 	and 	the employee
shall 	be 	released 	from duty 	for 	this purpose
without 	loss 	of pay.
12

forth 	in 	the 	hearing 	officer's 	proposed 	decision. 	A 	summary of
these 	include: 	de 	Tuncq was 	never 	offered 	a 	reason why 	the
District 	was 	removing 	him as 	chair 	of 	the 	social 	studies
department 	until 	he 	requested 	an 	explanation. 	The 	formal
transfer 	notice 	did 	not 	offer 	a 	reason 	for 	the 	transfer.
According 	to Conner, 	de Tuncq's attitude 	and 	his 	relationship
with 	students was 	unsatisfactory. 	Conner 	also 	testified he
told 	de 	Tuncq 	that 	he 	had 	been 	at Novato High 	School 	for 	over
20 	years 	and 	needed a change, 	that 	he 	had 	become 	"engrained" 	in
his 	courses. 	At 	the 	first 	step grievance 	after 	his 	transfer
Conner 	indicated 	de 	Tuncq was 	being 	transferred 	for 	the 	good 	of
the 	school. 	At 	the 	hearing 	he 	elaborated 	on 	the 	various
reasons 	which 	prompted 	the decision to 	transfer 	de 	Tuncq: 	de
Tuncq 	carried 	a 	lighter 	teaching 	load 	than 	other 	teachers,
implying 	that 	students were 	unwilling 	to 	remain 	in 	his 	class;
students 	complained 	about 	being 	confused 	and 	not 	knowing 	the
requirements 	in de Tuncq's courses.
Evidence 	that 	a 	respondent 	failed 	to offer 	justification 	to
the 	aggrieved 	employee 	at 	the 	time 	it 	took 	action 	against 	him
or 	that 	it 	offered 	exaggerated 	or 	vague 	and 	ambiguous 	reasons,
is 	relevant 	in deducing 	improper 	motive. 	See Mid-Ohio
Automotive 	(1972) 	200 NLRB 589 	[82 LRRM 1331]. 	See 	also Taft
Broadcasting Co. 	(1978) 	238 NLRB 588 	[99 LRRM 1403]; 	Savin
Business Machines Corp. 	(1979) 	242 NLRB 435 	[101 LRRM 1205].
In a 	similar 	vein, 	by 	raising 	at 	the 	hearing 	for 	the 	first 	time
13

new 	justifications, 	the District 	appears 	to be 	attempting 	to
legitimize 	its 	decision after 	the 	fact. 	This 	too 	is 	supportive
of 	an 	inference 	that 	the District was 	unlawfully motived. 	16
-
After 	entertaining 	all 	of 	these 	factors, 	the Board 	draws
the 	inference 	that 	de 	Tuncq's 	protected 	conduct 	was 	a
motivating 	factor 	in his 	involuntary 	transfer.
The 	burden of 	producing 	evidence 	in subsection 	3543.5 (a) 	cases
Once 	the 	charging 	party has made 	a prima 	facie 	showing
sufficient 	to 	support 	the 	inference 	that 	the 	exercise 	of
employee 	rights 	granted 	by EERA was 	a motivating 	factor, 	as 	the
Federation has 	established, 	the 	burden 	shifts 	to 	the 	employer
to prove 	that 	its 	action(s) 	would 	have 	been 	the 	same despite
the protected activity. 	Wright Line, 	supra, Martori, 	supra.
We 	note 	that 	the 	shifting 	of 	burdens 	does 	not 	undermine 	nor
does 	it 	conflict 	with 	the 	requirement 	of 	Board 	rule 	32178 	that
the 	charging 	party must 	establish 	an 	unfair 	labor 	practice 	by 	a
preponderance of 	the 	evidence. 	After 	all 	the 	evidence 	is 	in,
it 	is 	a question of 	the 	sufficiency of 	the proof proffered 	by
the 	various 	parties. 	The 	shifting 	burden merely 	requires 	the
employer 	to make what 	is 	actually 	an 	affirmative defense 	to 	the
prima 	facie 	case of 	wrongful 	motive. 	Such 	a 	requirement does
not 	shift 	the 	ultimate 	burden.
The District 	argues 	that 	its 	decision 	to 	transfer 	de 	Tuncq
was 	not 	based 	on 	his 	protected 	activity 	but was 	based 	primarily
on 	his 	routinely 	small 	class 	load 	and 	an 	excessive 	number 	of
14

parental 	and 	student 	complaints 	regarding 	his 	grading 	policies,
clarity of 	assignments, 	and 	poor 	relations 	with 	both 	parents
and 	students.
The 	District 	contends 	that 	under 	Education 	Code 	section
35035(c) 	it 	has 	unlimited 	and 	unqualified 	discretion 	to
transfer 	employees 	involuntarily. 	The 	section 	reads:
The 	superintendent 	of 	each 	school 	district
shall, 	in addition 	to any other 	powers 	and
duties 	granted 	to or 	imposed 	upon 	him:
(c) 	Subject to the approval of 	the governing
board, 	assign all 	employees of 	the district
employed 	in positions 	requiring
certification qualifications, 	to 	the
positions 	in which 	they are 	to serve. 	Such
power 	to assign 	includes 	the 	power 	to
transfer 	a 	teacher 	from one 	school 	to
another 	school 	at which 	the 	teacher 	is
certificated 	to 	serve 	within 	the 	district
when 	the 	superintendent 	concludes 	that 	such
a 	transfer 	is 	in 	the 	best 	interest 	of 	the
district.
We will 	consider 	each 	of 	the District's contentions. 	We
find 	little 	merit 	in 	the 	District's 	first 	justification 	that
de 	Tuncq 	experienced 	high 	rates 	of 	transfer 	and 	drops from his
courses 	and, 	as 	a 	result, 	had a smaller 	class 	load 	than other
teachers. 	As 	the hearing officer 	points out, 	the 	record
indicates 	that 	the 	total 	number 	of 	withdrawals 	from de Tuncq's
classes 	during 	1979-80 	was 	not 	appreciably 	greater 	than 	the
rates 	he 	and 	other 	teachers 	had 	experienced 	in prior 	years, 	nor
had 	any 	received 	any 	disciplinary 	action 	because 	of 	the 	higher
numbers.
15

The 	District 	contends 	that 	from 1977-80 	de 	Tuncq 	suffered
an average 	loss 	greater 	than 	any other 	teacher. 	However, 	this
data 	was 	not 	gathered 	until 	two months 	after 	Conner's 	decision
to 	transfer 	de 	Tuncq. 	Conner 	admitted 	at 	the 	hearing 	that 	he
did 	not 	keep 	a close 	tally 	on 	student drops 	and 	transfers.
We 	differ 	with 	the 	hearing 	officer's 	characterization 	of
the 	District's 	arguments 	as 	pretextual.12 We 	do 	find 	some
merit 	to 	the District's contention 	that one of 	the 	reasons 	it
transferred 	de 	Tuncq was 	due 	to a high 	number 	of 	parent 	and
student 	complaints. 	Several 	witnesses 	supported 	the District's
contention.
Where, 	as here, 	the case 	revolves 	around 	the existence of
both 	lawful 	and 	unlawful motive, 	the Board must 	determine
whether 	the 	employer 	would 	have 	taken 	its 	action 	had 	the
employee 	not 	engaged 	in 	protected 	activity.
12When 	the 	Board 	concludes 	that 	the 	employer's 	proffered
justifications 	are 	pretextual, 	the 	charging 	party prevails
because 	the 	respondent 	has 	failed 	to meet 	its 	burden 	of
presenting 	evidence of 	lawful motive; 	i.e., 	the 	employer would
not 	have 	taken 	the 	actions 	it 	did 	"but 	for" 	the 	employee's
protected 	activity.
Carlsbad 	set 	forth 	a 	single 	test 	applicable 	to 	all 	cases
alleging 	a violation of 	section 3543.5(a). 	The decision here
is not to the contrary. 	The 	"nexus" 	requirement 	is, 	of course,
refined 	in 	unlawful motive cases. 	The Board will 	in all 	cases
consider 	the 	justification offered 	but 	will 	apply 	the 	"but 	for"
principle 	only 	in 	unlawful motive 	cases.
16

There were 	three pre-March 	24, 	complaints. 	Conner
mentioned 	the 	complaints 	of 	Ziss, 	Chaney 	and Morrill 	as
examples 	of 	incidents 	which 	figured 	in 	the 	transfer 	decision.
We 	are 	not persuaded 	that 	these 	pre-March 	24 	complaints
formed 	a 	valid 	basis 	for 	the 	involuntary 	transfer. 	The 	Ziss
and 	Morrill 	incidents 	occurred 	during 	a 	period 	when Conner
evaluated 	de Tuncq as 	"effective" 	in dealing 	with 	students 	and
parents. 	The 	Chaney 	incident 	similarly 	occurred 	during 	a
period 	when Conner 	rated 	de 	Tuncq 	"effective" 	in 	cooperation
with 	staff. 	There 	was 	no evidence 	that Chaney or 	his 	parents
complained 	about 	de 	Tuncq. 	Conner 	apparently 	never 	considered
their 	complaints 	significant 	enough 	to 	record 	in de 	Tuncq's
written 	evaluations.
The 	District's 	testimony 	was 	that 	de 	Tuncq had 	received
approximately 11 other 	complaints. 	However, 	the 	record
indicates 	that 	there 	were 	at most 	only 	five. 	Another 	five
appear 	to 	be 	student 	transfer 	requests 	which 	were 	not 	intended
to 	be 	complaints. 	A sixth 	complaint was 	filed 	after 	a 	school
official 	suggested 	that 	the 	student 	submit one. 	Some 	centered
on disagreement 	with 	de Tuncq's grading 	criteria, 	especially
with 	reference 	to his 	use 	of 	punctuality 	and 	attendance 	as
factors 	in grading. 	These 	complaints manifested 	themselves 	in
parent 	and 	student 	dissatisfaction 	with 	actual 	letter 	grades.
However, 	the 	evidence 	indicates 	that a 	teacher 	has 	the option
of 	using 	attendance 	as 	a 	grading 	factor. 	Conner 	was well 	aware
17

of 	de Tuncq's 	grading 	procedures 	and 	never 	objected 	or
counseled 	de Tuncq 	to change 	them. 	Conner 	further 	seemed 	to
have 	accepted 	these complaints 	at 	face 	value 	and, 	for 	the most
part, 	did 	not 	discuss 	them with 	de Tuncq even 	though 	he 	usually
discussed 	student/parent 	complaints 	with 	teachers 	if 	they were
"at 	all 	serious."13
Other 	complaints 	criticized 	de 	Tuncq 	for 	his 	alleged
inability 	to 	provide 	adequate 	instructions 	or 	explanations
about course 	requirements. 	In de Tuncq's March 	24 	evaluation,
Conner 	praised 	the 	"clarity 	with 	which 	he 	[de 	Tuncq] 	gives
assignments."
The 	record 	also 	indicates 	that 	de 	Tuncq distributed
handouts 	at 	the 	outset of 	the 	personal 	philosophy 	course 	which
detailed 	the 	course 	requirements 	and 	explained 	what 	was 	meant
by 	the 	evidential 	file.
The 	third 	general 	category 	of 	complaints 	involved 	comments
allegedly 	by de Tuncq 	to 	students 	and/or 	parents. 	We 	affirm
the 	hearing 	officer's 	analysis 	and 	evaluation. 	Although
de Tuncq demonstrated 	poor 	judgment 	in 	a 	couple 	of 	instances,
such 	as walking 	away 	from a 	student 	and 	refusing 	to discuss 	her
grade 	with 	her 	or 	commenting 	to a 	student 	before 	the 	whole
class 	regarding 	his parent's complaint, these 	instances 	are not
13Conner 	had 	some 	discussion 	with 	de 	Tuncq 	about 	the
grade-oriented 	complaints 	of 	only Briggs 	and Wilherm. 	The
record 	does 	not 	indicate 	that 	there 	was 	any 	discussion 	about
the other 	complaints.
18

sufficient 	to 	rebut 	the 	inference 	of 	unlawful 	motive 	already
established. 	They 	were 	generally 	exaggerated 	by Conner 	without
investigation or 	never 	really discussed 	with 	de Tuncq, 	yet 	used
as 	a 	basis 	for 	the 	involuntary 	transfer.
We 	further 	reject 	the 	District's 	contention 	that 	section
35035(c) 	of 	the Education Code provides 	it with 	the 	unlimited
and 	unqualified 	right 	to 	transfer 	employees 	involuntarily. 	The
District's 	transfer 	discretion 	is 	inherently 	limited 	by 	the
requirement 	that 	it 	be 	exercised 	reasonably 	and 	in 	the 	best
interests 	of 	the 	educational 	objectives 	of 	the 	school 	system.
See Adelt v. 	Richmond 	School 	District 	(1967) 	250 Cal.App.2d 	149
[58 Cal.Rptr. 	151]; Duhart v. Woodward 	(1929) 	99 Cal.App. 	736
[279 P. 	493]; 	cf. 	Palos Verdes Peninsula Unified School
District 	(2/26/82) 	PERB Decision No. 	195.
Further, 	the District's prerogative 	is 	not 	absolute 	and 	its
decision 	to transfer 	cannot be protected where, 	as here, 	the
motive 	for 	such 	a 	transfer 	is 	unlawful.
Further, 	the 	Board must 	consider 	Education Code 	section
35050(c) 	in light of EERA section 3543.5(a), 	two separate
statutory 	provisions 	which 	are 	seemingly 	inconsistent 	or
contradictory: 	the Code's permissive 	section 	35035(c) 	and
EERA's prohibitive section 3543.5(a). 	It is a principle of
statutory 	construction 	that:
. 	. 	. 	relevant to resolving seeming
inconsistencies 	in 	separate codes 	is 	the
19

rule declaring 	that codes 	blend 	into each
other 	and 	constitute 	a 	single 	statute 	for
purposes 	of 	statutory construction. 	58
Cal.Jr.3d 	416, 	citations 	omitted.
The 	protection of 	an 	employee's 	right 	to engage 	in
protected 	activities 	free 	of 	reprisal 	is 	a 	fundamental
legislative purpose 	which would 	be 	defeated 	if 	we 	adopted 	the
District's 	position.
By 	so 	limiting 	the District's 	power 	of 	transfer 	to purposes
not 	prohibited 	by EERA, 	the Board 	harmonizes 	the 	two 	sections
without 	depriving 	the 	District 	of 	the 	discretion 	to 	transfer
employees 	in 	the 	legitimate 	interests 	of 	the 	school 	system.
The 	relevant 	justifications 	presented 	by 	the 	District 	are
insufficient 	to 	balance 	the 	evidence 	that 	it would 	not 	have
taken 	this 	action 	against de Tuncq but 	for 	his 	union
activities. 	Accordingly, 	we conclude 	that 	the Federation has
established 	by 	a preponderance 	of 	the 	evidence 	that 	the
District violated 	subsection 3543.5 (a) 	when 	it 	removed de Tuncq
as 	department 	chair 	and involuntarily transferred 	him 	to 	another
school.
In making 	this 	finding 	we 	rely 	heavily on 	the proximity 	in
time 	of 	the District's 	action 	to de Tuncq's aggressive 	and
vocal participation in grievance 	representation, 	the maintenance
of 	the 	secret 	file 	of de Tuncq's union activities, 	the 	severity
of 	the 	action 	taken despite 	de Tuncq's 	23 	years 	of 	unblemished
service, 	the disparity 	between de Tuncq's evaluations 	and 	the
20

sudden 	emphasis on his 	recent difficulties with a 	few 	students,
and 	Conner's 	failure 	to 	investigate parental 	complaints 	and 	to
follow proper 	notification procedures.
Respondent 	has 	also 	filed 	a 	request 	to 	reopen 	the 	record 	to
provide 	additional 	evidence 	regarding 	the 	operational 	necessity
standard 	in Carlsbad, 	supra. 	The District argues 	that actual
evidence 	as 	to how 	the 	transfer 	improved 	the 	operation of 	the
District was 	not 	available 	at 	the 	time of 	the 	hearing. 	The
request 	is 	denied 	because 	the 	issue 	in question 	is 	to what
extent was 	the 	fact 	that 	de Tuncq engaged 	in protected 	activity
a motivating 	factor 	for 	the 	transfer. 	If 	the District 	is
claiming 	an operational necessity 	for 	the 	transfer, 	it must 	be
based 	on 	facts 	which 	are 	concurrent 	or 	which 	antedate 	the
decision 	to 	transfer, 	not 	on alleged 	improvement 	a year 	from
the 	transfer 	date.
Section 	3543.5(b) 	Violation
The Board 	does 	not conclude, 	as 	did 	the 	hearing 	officer,
that 	reprisals 	against 	an 	employee 	acting 	as 	a 	grievance
representative 	inherently, 	and 	therefore 	concurrently, 	deny 	an
employee 	organization 	the 	right 	to 	represent 	its members.
Since 	the Association 	failed 	to demonstrate 	that 	its 	rights
under 	EERA were 	adversely 	affected 	by 	the 	District's 	actions
against de Tuncq, 	we 	dismiss 	the 	charge 	alleging 	a violation of
section 3543.5(b).
21

REMEDY
Section 3541.5(c) 	empowers 	the Board
. . . 	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 	reinstatement 	of 	employees 	with
or 	without 	back pay, 	as will 	effectuate 	the
policies of 	this chapter.
The District 	is 	ordered 	to cease 	and 	desist 	in 	its 	unlawful
actions 	against de Tuncq. 	Since de Tuncq has 	suffered
financial loss 	as 	a 	result of 	his 	removal 	as department 	chair,
he 	is 	entitled 	to be made whole 	for 	the 	entire 	period of 	such
loss. 	However, 	because 	de Tuncq's immediate reinstatement
might 	impact 	on District 	employees 	who 	have 	replaced 	him 	and
cause 	reassignments 	during 	the 	middle 	or 	end 	of 	the 	semester 	at
the 	junior 	high 	school where de Tuncq presently 	teaches, 	we
find 	it 	appropriate 	that his 	reinstatement 	at 	Novato High
School 	as 	chairman 	and 	full-time 	teacher 	in 	the 	social 	studies
department 	be 	deferred 	until 	the 	beginning 	of 	the 	1982-83
school year.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law and 	the 	entire
record 	in this case, 	it 	is ORDERED 	that Novato Unified School
District 	shall:
CEASE AND DESIST 	from violating 	section 	3543.5(a) 	of 	the
EERA by 	taking 	reprisals 	against George 	de 	Tuncq 	because 	of 	his
participation 	in protected 	activities.
22

It 	is 	further 	ORDERED 	that 	the 	District 	shall 	take 	the
following 	affirmative 	action:
1. 	Make 	an 	immediate 	unconditional 	offer 	to de 	Tuncq 	to
reinstate 	him at 	the 	beginning 	of 	the 	next 	semester 	to his
former 	positions 	as 	chairman 	and 	full-time 	teacher 	in 	the
social 	studies 	department 	at Novato High School; 	de Tuncq
should 	be given 	a 	reasonable 	time 	in which 	to respond.
2. 	Provide 	payment with 	interest 	at 	seven percent 	per
annum 	to de 	Tuncq 	for 	compensation 	lost 	as 	a 	result 	of 	being
removed 	as 	departmental 	chairman 	from 	the 	date 	of 	his 	removal
to 	the 	date 	he 	is 	restored 	to 	that position or 	until 	the 	date
he 	declines 	such 	restoration.
3. 	Within 	five 	workdays 	following 	service 	of 	this
decision, 	post copies of 	the 	attached 	notice 	to employees 	as
set 	forth 	in 	the 	attached Appendix 	for 	a period 	of 	twenty 	(20)
workdays 	in 	a 	conspicuous 	place 	at 	such 	locations 	as 	notices 	to
certificated 	employees 	are 	customarily 	posted.
4. 	At 	the 	end 	of 	the posting 	period, 	notify 	in writing 	the
regional 	director 	of 	the 	Public Employment 	Relations 	Board,
San 	Francisco 	Regional Office, 	of 	the 	action taken 	to comply
with 	this Order.
By Irene Tovar, Member 	Harry Gluck, 	Chairperson
John W. 	Jaeger, 	Member
23	23

APPENDIX
NOTICE 	TO 	CERTIFICATED 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case No. 	SF-CE-473,
Novato Federation of Teachers, 	Local 	1986, 	AFT, 	AFL-CIO v.
Novato 	Unified 	School 	District f 	in 	which 	both 	parties 	had 	the
right 	to 	participate, 	it 	has 	been 	found 	that 	the 	Novato Unified
School 	District 	violated 	section 	3543.5(a) 	of 	the 	Educational
Employment 	Relations Act 	(the Act) 	by 	imposing 	reprisals
against 	its 	employee, 	George 	de 	Tuncq, 	by 	removing 	him 	as
chairman 	of 	the 	social 	studies 	department 	and 	transferring 	him
to 	another 	school 	because 	of 	the 	exercise 	of 	rights 	under 	the
Act.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to post
this 	Notice, 	and we 	will 	abide 	by 	the 	following:
(1) 	CEASE AND DESIST FROM violating 	section 	3543.5 (a) 	by
taking 	reprisals 	against 	George 	de 	Tuncq 	because 	of 	his
exercise 	of 	protected 	rights 	under 	the Act.
(2) 	TAKE AFFIRMATIVE ACTION TO:
(a) 	Make 	an 	immediate 	unconditional offer 	to de 	Tuncq
to 	reinstate 	him 	at 	the 	beginning 	of 	the 	next 	semester 	to 	his
former 	positions 	as 	chairman 	and 	full-time 	teacher 	in 	the
Social 	Studies 	Department 	at 	Novato 	High 	School.
(b) 	Make 	de 	Tuncq whole 	for 	compensation 	lost 	as 	a
result 	of 	being 	removed 	as 	departmental 	chairman, 	from 	the 	date
of 	his 	removal 	to 	the 	date 	he 	is 	restored 	to 	that 	position 	or
the 	date 	he 	declines 	such 	restoration. 	Payment 	on 	such 	losses
shall 	include 	interest 	at 	the 	rate 	of 	seven 	percent 	per 	annum.
Dated: 	By
Authorized 	Agent 	of 	the 	District
THIS 	IS 	AN OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED 	FOR TWENTY
(20) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST 	NOT
BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
11

STATE 	OF CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
NOVATO 	FEDERATION 	OF 	TEACHERS,
LOCAL 1986, AFT, AFL-CIO,
Charging 	Party,
v.
NOVATO 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-473
PROPOSED 	DECISION
(7/23/81)
Appearances; 	Robert Bezemek 	(Bezemek & Bennett), 	for 	charging
party Novato Federation of Teachers, 	Local 1986, AFT, AFL-CIO;
Diana K. 	Smith 	(Breon, Galgani and Godino), 	for 	respondent
Novato Unified 	School 	District.
Before; 	Fred D'Orazio, 	Hearing Officer.
PROCEDURAL 	HISTORY
On June 6, 	1980, 	the Novato Federation of Teachers, 	Local
1986, AFT, AFL-CIO 	(hereafter Federation, NFT, or charging
party), 	filed an unfair practice charge 	(SF-CE-473) 	against
the 	Novato Unified School 	District 	(hereafter 	District 	or
respondent) 	alleging 	that 	the 	District 	violated 	the Educational
Employment Relations Act 	(hereafter EERA or A c t ) , 1 sections
1The 	EERA 	is 	codified 	at Government Code, 	section 	3540
et 	seq. 	All 	references 	hereafter 	are 	to 	the Government Code
unless 	otherwise 	noted.

3543.5 (a) 	and 	(b), 	by transferring a union activist 	in
retaliation 	for 	engaging 	in protected 	activity 	under 	the Act.
In 	addition, 	the 	charge 	alleged 	that 	the District 	refused 	to
provide NFT, 	the exclusive 	representative of 	certificated
employees, 	with 	information 	regarding 	the 	involuntary 	transfer
of unit employees. 	The District, 	in 	its answer, 	denied both
allegations. 	An 	informal conference was 	held on July 10, 	1980.
The matter 	was 	not 	settled 	and 	the 	formal 	hearing 	was 	conducted
on September 	10, 	11, 	and 18, 	1980. 	The parties 	filed briefs
on November 	18, 	1980, 	and 	the case was submitted.
FINDINGS 	OF 	FACT
Protected 	Activities
George 	de 	Tuncq taught 	at Novato High School 	(NHS) 	for 	23
years. 	He 	had 	a history of 	active 	involvement with 	the
Federation. 	He was 	that 	organization's 	first president 	in 	1969
and 	served 	one 	term. 	He was 	a 	negotiator 	under 	the Winton
Act, 	the EERA's predecessor, 	and he engaged 	in other 	pre-EERA
organizational activities. 	For 	example, 	he was once designated
as 	a strike 	captain, 	but 	the 	strike 	never 	materialized.
Novato District 	teachers 	elected 	the 	Federation 	as 	their
exclusive 	representative 	in 	1976. 	Since 	that 	time de Tuncq
has 	served 	as 	a grievance officer, 	a member 	of 	the grievance
committee, 	and 	a 	building 	representative.2 The 	following
2A 	grievance 	officer 	is 	a person 	who 	represents 	employees
in 	individual grievances. 	A building 	representative 	is a
2

testimony 	by 	de 	Tuncq succinctly describes 	his 	status 	at 	Novato
High 	School:
I 	am generally 	the 	one 	who people 	talk 	to
about 	union matters 	there on 	the 	staff. 	We
have 	had 	other 	people who have 	served 	as
building 	reps 	to, 	you know, 	hand out
literature 	and 	this 	kind of 	thing, 	but when
somebody 	has 	a question 	under 	the 	contract
they 	will 	come 	to me 	because 	I'm more
familiar 	with 	the 	contract 	and 	legal 	process
about 	it 	than 	any other 	member 	of 	the 	staff.
Russell Dreosch, 	a teacher 	in the District 	since 	1958, 	testified
that 	de Tuncq 	is 	"probably one 	of 	the most 	active 	if 	not 	the
most 	active" 	union member 	at Novato High 	School.
In 	1977, 	Barry Conner 	became 	the principal at Novato High
School 	and 	has 	served 	in 	that 	position 	through 	the 	1980-1981
school year. 	It was Mr. 	Conner 	who made 	the decision and 	took
the 	necessary action 	to 	transfer 	de Tuncq in 	1980. 	As 	the
following 	incidents 	indicate, 	de 	Tuncq's 	protected 	activities
regularly 	brought 	him 	into direct 	conflict 	with 	Barry Conner.
In the 	fall of 1978, 	a class 	size 	issue arose 	at NHS under
the 	collective 	bargaining 	agreement. 	The 	issue 	involved 	the
question of 	whether 	certain 	class 	sizes 	were 	in 	excess 	of 	those
provided 	for 	in 	the contract. 	After 	informal discussions 	got
nowhere, 	de 	Tuncq was 	authorized 	to 	file a grievance 	on 	behalf
of 	teachers 	in 	the 	social 	studies department, 	de Tuncq then
person 	who conducts 	a 	broad 	range 	of organizational 	activities
in 	the particular 	school, 	de Tuncq has 	simultaneously done 	both
since 	1976.
W	
3

spoke 	to 	teachers 	in 	the English department 	about 	the 	same
issue. 	According 	to de Tuncq, 	they declined 	to 	file a grievance
because Conner 	had 	promised 	to 	reduce 	class 	size 	and 	they
thought 	he was 	a 	"nice guy." 	At 	about 	this 	time Conner 	brought
the 	class 	sizes 	into 	line 	with 	the 	contract. 	de 	Tuncq went
ahead 	anyway 	and 	filed 	an 	institutional 	grievance 	on 	behalf 	of
the 	Federation. 	He processed 	the 	grievance 	through 	the 	various
steps of 	the 	grievance procedure, 	coming 	into direct 	contact
with Conner 	at 	each 	step. 	Eventually, 	the case went 	to
arbitration. 	de 	Tuncq was 	the 	sole witness 	for 	the Federation
and Conner 	testified 	for 	the District. 	On January 30, 	1979, 	an
arbitrator 	ruled 	in 	favor 	of 	the Federation, 	finding 	that 	the
District 	took 	too 	long 	to conform class 	sizes 	to 	the 	contract,
Another 	matter 	which 	brought 	de 	Tuncq 	and 	Conner 	into
conflict 	involved 	the question of 	whether 	teachers, 	other 	than
English 	teachers, 	should be 	required 	to 	teach 	basic 	language
skills, 	i.e., 	spelling, punctuation, 	and writing. 	At a faculty
meeting on August 	31, 	1978, 	Conner 	announced 	that part of 	the
goals 	and 	objectives 	for 	all 	teachers 	during 	the 	upcoming
school year 	would 	include 	teaching 	basic 	language 	skills.
A 	number 	of 	teachers 	who 	did 	not 	teach 	English 	complained
to de Tuncq 	and 	he 	took 	up 	the 	issue. 	He 	first 	spoke privately
to Conner 	and 	voiced 	a 	two-pronged objection: 	first, 	this
requirement 	unilaterally altered 	the 	job and, 	second, 	added 	to
the 	evaluation 	criteria 	in 	the 	collective 	bargaining
4

agreement.3 Conner 	explained 	that 	the 	public 	wanted 	basic
education 	and 	teachers 	should 	provide 	it.
A number 	of meetings were 	held 	and 	memoranda 	exchanged, 	but
the matter 	was 	not 	resolved. 	By 	the 	end of 	this 	process,
de 	Tuncq 	had 	decided 	that 	he 	would 	not 	include 	the 	teaching 	of
basic 	language 	skills 	as part of his goals 	and objectives. 	If
Conner 	wanted 	to 	force 	the 	issue, 	he 	(de Tuncq) 	would grieve
the matter. 	This was 	reflected 	in a 	note de Tuncq placed 	in his
file on or 	about October 	20, 	1978. 	Conner 	eventually retreated
from his 	initial position. 	The 	teaching of 	basic 	language
skills 	by teachers, 	other 	than English 	teachers, 	would not be
mandatory.
In 	the 	spring of 	1980 	these 	two men 	found 	themselves 	on
opposite 	sides 	of 	another major 	issue. 	Prior 	to 	that 	time,
absences 	and 	tardies 	had 	never 	been 	entered 	on 	report 	cards 	by
teachers. 	At a January 16, 	1980 	faculty meeting Conner
attempted 	to 	initiate 	this 	requirement 	at NHS, 	although 	it was
not 	required 	at San Marin High School, 	the 	only 	other 	high
school 	in 	the 	District. 	de 	Tuncq 	again objected. 	Because
tallies 	from class 	to class 	and 	teacher 	to 	teacher 	are 	not
3de 	Tuncq 	raised 	additional 	questions 	about 	the 	meetings
Conner 	had 	scheduled 	with 	teachers 	to discuss 	evaluation
criteria. 	He 	objected 	to 	holding 	evaluation 	conferences 	during
lunch 	hour 	because 	teachers 	were 	entitled 	to 	a 	duty 	free 	lunch
period. 	Another 	objection was 	raised 	with 	request 	to holding
group meetings 	after 	school 	to discuss 	evaluation 	criteria
because 	the 	contract 	provided 	individual 	conferences.
5

always 	consistent, 	he 	argued, 	the 	requirement appeared 	to be 	an
endless 	time-consuming matter. 	More 	importantly, 	it 	represented
an 	increase 	in work 	for 	teachers.
To voice 	this position, 	de 	Tuncq and 	another 	teacher, 	Russ
Dreosch, 	distributed 	a memo 	objecting 	to making 	this 	new duty
mandatory. 	The 	memo 	also 	charged 	that 	the 	new 	duty wasn't
negotiated. 	Quoting Carey McCarthy, 	NFT president, 	the memo
stated:
. . . 	we 	should 	not 	start 	new patterns 	of
work 	but 	should 	go 	along 	with 	past 	practices
which 	in 	this 	case 	means 	using 	our 	discretion
about 	using 	these 	spaces 	on 	the 	grade 	sheets.
On January 	24, 	1980, 	de Tuncq sent 	another memo 	to 	the 	faculty
stating 	that 	this 	new duty 	"is 	not 	a 	'must'."
On March 	24., 	1980, 	Conner 	evaluated de Tuncq as 	"needs 	to
improve" 	in 	the 	area of 	recordkeeping. 	de Tuncq 	took 	exception
to 	this evaluation. 	In a March 	26, 	1980 memo, 	de Tuncq openly
defied 	Conner. 	He 	told 	him 	that 	the 	information 	regarding
tardies 	and 	absences 	of 	his 	students 	was 	available. 	However,
he 	refused 	to put 	it on 	report 	cards 	as Conner 	desired. 	If
parents 	and 	administrators 	wanted 	to 	see 	it, 	de Tuncq told
Conner, 	the material would 	be made 	available, 	but he 	(de Tuncq)
saw no 	reason 	to put 	it 	on 	a 	report 	card. 	Conner 	never
directly 	responded 	to 	this 	memo.4
4The 	record 	includes 	other 	examples 	of 	de 	Tuncq's
protected 	activity. 	However, 	the 	hearing 	officer 	finds 	it
6

de 	Tuncq's 	Transfer
a. 	Reasons 	for 	the Transfer
On May 	12, 	1980 Conner 	first 	told de 	Tuncq 	that 	he was
relieving 	him of 	his 	duties 	as 	department 	chairperson 	and
thinking 	of 	transferring 	him out of NHS. 	During 	the meeting,
Conner 	also 	said 	that 	both 	de 	Tuncq's 	attitude 	and 	his
relationship with 	students 	was 	unsatisfactory. 	To 	support 	the
latter 	allegation, 	he cited 	the 	cases 	of Mark Briggs 	and 	Linda
Wilhelm 	as 	examples 	of 	situations 	which 	demonstrated 	de 	Tuncq's
dislike 	of 	students.5 Conner 	also 	testified 	that 	he 	told
de Tuncq 	that 	he 	had 	been 	at NHS 	for 	over 	20 	years 	and 	he
needed 	a change. 	There was 	no discussion 	as 	to where 	de Tuncq
would 	be 	transferred.
The 	reasons 	given 	de Tuncq for 	the 	transfer 	are 	also
reflected 	in a memo Conner 	wrote 	to Paul Mobley, 	assistant
superintendent, 	on the same day. 	In that memo, 	Conner
described 	the 	discussion with 	de 	Tuncq as 	follows:
I 	explained 	to George 	that 	I 	was meeting 	the
May 15 deadline, 	pointing 	out 	that 	I was
giving 	strong 	consideration 	to 	giving 	him 	an
involuntary 	transfer.
unnecessary 	to describe 	in detail 	all 	of 	these 	activities 	in
order 	to 	show 	that de Tuncq was 	a 	union 	activist. 	The 	facts
related 	in 	this 	part 	of 	the 	decision 	clearly 	support 	this 	point
and more would 	be 	superfluous. 	Moreover, 	it 	is 	undisputed 	that
the District was 	aware 	of 	these 	activities.
5 The 	Briggs 	and Wilhelm 	incidents 	are 	discussed 	in 	detail
below.
7

After 	a great deal of conversation, Mr.
de 	Tuncq said 	that 	he 	felt 	that 	it was my job
to explain 	to him what 	he 	was doing wrong.
I 	stated 	that 	his 	relations 	with 	students
and 	parents 	were 	such 	that 	I 	strongly 	felt
something 	was wrong. 	I 	told 	him,
specifically, 	he 	had 	been 	rude 	and 	abrupt
with 	students 	and parents; 	that 	I 	had 	no
other 	teacher 	that 	so many 	students 	and
parents 	had 	come 	to me with 	so many
complaints. 	On 	the other 	hand, Mr. 	de Tuncq
felt 	that 	his 	Philosophy 	class 	was 	geared 	to
more 	intelligent 	students 	and 	that 	those 	who
were 	not 	in 	that 	category 	had 	not met 	the
requirements of 	the 	course.
I 	also pointed 	out 	to Mr. 	de Tuncq that 	he
was 	rude 	to fellow faculty members, 	both 	in
faculty meetings 	and 	in 	curriculum council
meetings. 	Mr. 	de Tuncq said 	that he 	felt
that 	relieving 	him of 	his 	responsibilities
as 	head 	of his department, 	and 	threatening
him with 	a transfer 	was 	a punishment, 	used
to make 	him change his way of 	teaching. 	I
said 	that 	under 	no circumstances.- 	was 	it 	a
threat; 	it was a procedure 	that 	I was
following due 	to contract 	stipulations,
because 	of 	specific 	student 	and 	parental
complaints.
On May 	28, 	1980, 	Conner 	officially 	informed de Tuncq by
letter 	of 	the 	transfer. 	The 	letter 	offered 	no 	reasons 	for 	the
action, 	nor 	did 	it 	tell 	de Tuncq 	to what 	position he would 	be
transferred. 	The 	letter 	stated:
The 	District 	posts 	lists 	of openings 	from time
to 	time. 	You 	should watch 	for 	these 	notices
and 	apply 	for 	vacancies 	that 	interest you.
At 	a May 	30, 	1980 meeting 	with 	Superintendent 	Ronald 	Franklin
and Deputy Superintendent Paul Mobley, 	de Tuncq was 	told 	by
Franklin 	that 	he 	would 	be 	placed 	in 	a permanent 	substitute 	pool
until 	a 	position 	for 	which 	he 	was 	credentialed 	became 	vacant.
8

In September 	1980 	de Tuncq was 	assigned 	to Sinaloa Junior
High 	School 	as 	a permanent 	substitute. 	During 	the 	hearing 	in
this case, 	de Tuncq was 	again 	transferred, 	this 	time 	to
San Jose Junior 	High 	School, 	and 	assigned 	to 	teach 	United
States history and 	law. 	In order 	to make 	this 	assignment, 	the
District 	rearranged 	the 	assignments 	of 	other 	teachers 	at
San Jose 	Junior 	High 	School.
de 	Tuncq grieved 	the 	transfer. 	A first 	step grievance
meeting 	was 	held 	during 	the 	first 	week 	in June 	1980.6
According 	to de Tuncq, 	when 	asked 	for 	the 	reasons 	for 	his
transfer, 	Conner 	repeatedly 	replied 	"you 	are 	being 	transferred
for 	the 	good 	of 	the 	school." 	de Tuncq's 	testimony on 	this
point 	is 	consistent with 	Conner's 	written 	version of 	the
meeting 	which 	was 	found 	in 	a 	secret 	file 	he 	kept 	on de 	Tuncq.
Conner 	wrote:
Mr. 	de 	Tuncq 	stated 	that 	he 	had 	been 	relieved
of 	his 	department 	chairperson 	duties 	prior 	to
May 	15, 	and 	cited 	my conversation with 	him,
that 	it had 	to be done 	if 	I were 	to give him
an 	involuntary 	transfer 	at 	the 	conclusion of
the present 	school year. 	I 	agreed 	that 	the
above 	conversation 	had 	taken place. 	Mr.
de 	Tuncq 	also 	said 	he 	had 	received my 	letter
requesting 	an 	involuntary 	transfer.
Mr. 	de Tuncq asked 	three questions
concerning 	the 	involuntary 	transfer. 	The
6The 	meeting was 	attended 	by Conner, 	de Tuncq, 	James
Ross, 	vice principal, 	and Carey McCarthy, NFT president. 	The
grievance 	was 	pending 	as 	of 	the 	time of 	hearing. 	The
contractual 	grievance 	procedure 	does 	not 	provide 	for 	binding
arbitration. 	Thus, 	no question of deferral under 	section
3541.5(a) 	is raised.
9

three 	questions 	all 	centered 	around 	the
reasons 	he was 	to 	be 	transferred. 	To each 	of
these questions, 	I 	replied 	"For 	the best
interests 	of 	the 	school." 	Mr. 	de Tuncq then
posed 	two questions, 	asking 	if his 	union work
was 	causing 	the 	above 	"reprisal." 	To 	both of
these questions, 	I answered, 	"There are no
administrative 	reprisals."
Mr. 	de Tuncq 	then 	asked 	if 	the 	problem could
be 	settled 	at Level 	I 	of 	the 	grievance
procedure, to which I answered, 	"No."
The meeting 	ended 	at 	this 	point.
The meeting was 	short. 	Thus, 	as of 	the 	time of his 	transfer,
de 	Tuncq was 	given 	few 	specifics 	as 	to 	the 	reasons 	for 	the
action.7
During 	the 	course 	of 	the 	hearing, 	Conner 	testified 	in more
detail 	as 	to 	the 	various 	reasons 	which 	prompted 	the 	decision 	to
transfer 	de 	Tuncq. 	According 	to Conner, 	de 	Tuncq's 	relationship
with 	students 	and parents 	was 	poor, 	and he 	regularly carried 	a
lighter 	teaching 	load 	than 	other 	teachers, 	implying 	that
students 	were 	unwilling 	to 	remain 	in his class. 	Conner 	said
students 	complained 	about 	being 	confused 	and 	not 	knowing 	the
requirements 	in de Tuncq's 	courses.
Another 	reason 	for 	the 	transfer 	was 	Conner's 	opinion 	that
de Tuncq 	"needed 	a 	change" 	because 	he 	had 	become 	"locked 	into 	a
system." 	According 	to Conner, 	a 	teacher 	becomes 	"locked 	in"
7 Also, 	at 	the May 	30 meeting 	with 	Ronald Franklin, 	super-
intendent, 	and Paul Mobley, 	deputy superintendent, 	Franklin 	said
he 	didn't 	know why 	de 	Tuncq was 	being 	transferred 	and 	"assumed"
it was due 	to parental complaints.
10

when he or 	she 	has 	taught 	the 	same 	courses 	for 	an 	unspecified
number 	of years, 	and 	begins 	to act 	to protect 	"their 	personal
territory." 	Conner 	said 	that 	de 	Tuncq's 	personal 	territory 	was
smaller 	classes 	with 	more 	advanced 	students 	because 	he 	had 	no
patience 	for 	"slower 	kids." 	Conner 	acknowledged, 	however, 	that
other 	teachers 	also prefer 	to 	teach 	advanced 	students.
Prior 	to 	the 	transfer, 	de Tuncq was 	never 	told 	by Conner
that 	he 	had 	been 	at Novato High 	School 	teaching 	the 	same 	courses
for 	too 	long 	a period, 	nor 	was 	he 	ever 	told 	that Conner 	felt 	he
was 	"protecting 	his 	territory." 	Conner 	testified 	that 	he 	told
de 	Tuncq within 	the 	last 	year-and-a-half 	that 	he 	had 	no patience
with 	slower 	learners, 	but de 	Tuncq's 	evaluation 	for 	this 	period
reflects 	just 	the 	opposite.
Finally, 	after 	being 	recalled 	as 	a witness, 	Conner 	further
testified 	that 	de 	Tuncq's 	transfer 	was 	"partly" 	based 	on 	his
grading 	policies. 	This was 	the 	first 	time 	this 	had 	been
expressly 	offered 	as 	a 	reason 	for 	the 	transfer. 	According 	to
Conner, 	there 	"seems 	to be confusion about how Mr. 	de Tuncq
arrives 	at a 	grade." 	de Tuncq's 	teaching abilities, 	however,
played 	no part 	in 	the 	decision 	to 	transfer.
b. 	de Tuncq's 	Service 	at NHS 	and His Written Evaluations
George de Tuncq 	taught 	at NHS 	for 	approximately 	23 	years.
He 	had 	been 	the 	chairperson 	of 	the 	social 	studies 	department
11

since 	1967.8 	He 	has 	the most 	seniority of 	all 	social 	studies
teachers 	in 	the department.
Barry Conner 	was 	the 	principal 	at 	NHS 	for 	the 	three 	school
years 	preceding 	the hearing. 	In 	this 	capacity, 	he had 	ample
opportunity 	to 	observe 	de 	Tuncq's 	performance 	and 	evaluate
him.9 de 	Tuncq's 	official 	evaluations 	for 	this 	period
indicate 	that Conner 	had 	high 	regard 	for 	all 	aspects 	of 	his
teaching.
On March 	31, 	1978, 	Conner 	evaluated 	de Tuncq 	"one-effective"
in all 	areas 	where numerical 	ratings 	are 	used. 	In addition,
Conner 	wrote 	the 	following 	about de 	Tuncq:
George 	has 	shown 	a professional 	posture
throughout 	the 	1977-1978 	school year. 	He
has 	followed 	through on 	all 	assignments 	as
department 	chairman.
8de 	Tuncq was 	unanimously 	elected 	to 	this 	position 	in
periodic 	elections 	by 	the 	five other 	teachers 	in 	the 	social
studies 	department. 	After 	an election 	the principal 	appoints
the 	chairperson. 	de 	Tuncq 	received 	$375.00 	for 	his 	services 	as
chairperson 	during 	the 	1979-80 	school 	year. 	de 	Tuncq, 	who had
taught 	at Novato High School 	for 	23 	years, 	could 	not 	recall
another 	department 	chairperson 	being 	relieved 	of 	that
assignment.
9In order 	to 	fully 	understand 	the 	significance 	of 	these
evaluations, 	one must 	be 	familiar 	with 	the 	evaluation 	system 	in
the District. 	Teachers 	are 	numerically 	rated 	in 	three 	main
areas: 	(1) 	Instructional Competence, 	(2) 	Classroom Management,
and 	(3) 	Professional Qualities. 	Each 	of 	these 	areas 	is 	broken
down 	into 	several 	factors. 	Instructional competence 	is 	broken
into 	relations with 	students, 	teaching on the students' 	level,
instruction procedures, 	and 	knowledge of 	subject matter.
Classroom management 	is 	broken 	into classroom control, 	care 	and
appearance 	of classroom, 	and 	reports 	and 	records. 	Professional
qualities 	include 	cooperation 	with 	staff, 	professional
12

During 	the year, 	George has 	successfully 	run
the Marin 	County Government 	Scholars 	Program
that 	included 	the 	coordination 	of 	teachers,
students 	and buses. 	(Sic)
George was 	asked 	to work 	at 	the 	district
level 	for 	two periods 	in 	the Spring 	semester.
He 	has 	helped 	with 	the 	articulation 	of 	the
K-12 	Social 	Studies 	program, 	with 	emphasis
on 	grades 	7-12.
Dr. 	Rothe has 	indicated George's work 	is
satisfactory.
Approximately one year 	later, 	on March 	19, 	1979, Conner
again 	evaluated de Tuncq 	"one 	- 	effective" 	in 	all 	areas 	where
the 	numerical 	rating 	is 	used. 	In 	addition Conner 	wrote 	that
de Tuncq was 	"professional 	in his 	approach 	to classes," 	and
his 	recordkeeping 	was 	"excellent." 	After 	outlining 	de 	Tuncq's
"methodology" 	and 	criteria 	for 	evaluating 	students, 	Conner
concluded 	by 	saying 	that 	"de 	Tuncq 	follows 	school policy 	and 	is
thorough 	in 	the 	classroom."
de 	Tuncq 	received 	a 	similar 	evaluation 	from Conner 	on March
24, 1980, 	except he slipped to a two, 	- "needs to improve", 	in
record 	keeping.10 Conner's 	other 	written 	comments 	recognized
self-improvement, 	relations with parents, 	and 	interest 	in extra-
curricular 	activities. 	The 	numerical 	ratings 	are 	"one -
effective; 	two - needs 	to 	improve; 	and 	three 	-not 	observed."
In 	addition, 	the evaluation 	form 	includes an 	area where 	the
evaluator 	may 	enter 	written 	comments 	about 	the 	evaluatee.
10This 	was 	in 	response 	to de Tuncq's 	refusal 	to 	include
absences 	and 	tardies on 	report cards. 	On 	this 	subject, 	Conner
wrote 	that 	de Tuncq 	"failed 	to 	follow 	instructions, 	per 	the
principal's 	request."
13

that 	de Tuncq 	"has 	successfully met 	his 	stated 	goals 	and
objectives" 	for 	the 	1979-80 	school 	year.11 Conner 	continued:
"By 	using 	a 	variety 	of 	teaching 	methods 	. . . . 	Mr. 	de 	Tuncq
has successfully reached 	at 	least 	85% of his 	students," 	and 	"he
encourages 	and 	gets 	excellent 	student participation 	in
discussion." 	Conner 	further 	noted 	that 	de 	Tuncq had made 	"good-
to-excellent" 	progress 	in other 	teaching areas. 	This 	evaluation
concluded 	with 	the 	following 	comment:
The 	wide 	variety 	of 	teaching 	methods 	and
evaluation of 	students 	gives 	students 	of 	all
intellectual 	abilities 	an 	opportunity 	to pass
Mr. 	de Tuncq's classes.
Mr. 	de Tuncq needs 	to 	improve his 	recording
of 	absences 	and 	tardies 	for 	report 	card
purposes. 	He 	failed 	to 	follow 	instructions
per 	the principal's 	request.
Mr. 	de Tuncq attended a 	sex-equity
conference, 	and 	supported 	our 	students 	by
attending 	a 	lacrosse match 	and 	a 	student
musical 	presentation.
Mr. 	de Tuncq has 	excellent organizational
skills, 	as 	evidenced 	by 	the 	neatness 	of his
room, 	and 	the clarity with which he 	gives
assignments.
There 	was 	no 	evidence 	presented 	that 	de 	Tuncq ever 	received
an 	unsatisfactory 	evaluation. 	None 	of 	these 	evaluations
included 	a 	student/parent 	complaint 	about de Tuncq. 	Conner
testified 	that:
11The 	March 	24, 	1980 	evaluation was 	based 	on classroom
observations by Conner on March 19, 	20, 	1980 	and December 	4
5, 1979.
14

I 	usually 	keep a 	record 	[of 	such 	complaints]
so 	that 	I 	can 	go 	to 	the 	teacher 	and 	discuss
it with him 	if 	it's 	at all 	serious.
He 	also 	said 	that 	some 	complaints 	of 	a 	less 	serious 	nature may
be 	informally 	resolved 	by 	talking 	to 	the 	teacher 	or 	the
complainant. 	For 	example, 	a complaint about a grade, 	according
to Conner, 	would 	be disposed 	of 	by 	asking 	the 	teacher 	to 	show
how he 	arrived 	at 	the 	grade.
During his 	tenure 	at NHS, 	de Tuncq, 	who is 	a member 	of 	the
National Council 	for 	Social 	Studies, 	was 	active 	in 	the 	social
studies 	department. 	His 	unrebutted 	testimony 	indicates 	that 	he
introduced 	a psychology 	course 	to 	the department 	in 	1972 	or
1973, 	and 	a philosophy course 	in 1974 or 	1975. 	After 	his 	return
from a 	fellowship at Carnegie Mellon University, 	he 	introduced
courses 	in 	behavioral 	science. 	He 	also 	introduced 	a humanities
course 	to 	the department. 	In addition, 	he caused 	the history
course 	to 	be 	split 	into 	analytical western 	civilization 	and
analytical United 	States history. 	Similarly, 	though he did 	not
teach 	American democracy, 	he 	caused 	that 	course 	to 	split 	into
civics 	and 	current problems, 	such 	as poverty, 	foreign policy,
etc.
Conner 	testified 	that 	he was 	unaware 	of 	any 	"innovations"
which may 	have 	occurred 	in 	the 	social 	studies 	department 	over
the past 	five years 	as 	a result of de Tuncq's 	efforts, 	and he
did 	not 	ask 	de Tuncq 	if 	he 	had 	done 	anything 	along 	those 	lines.
However, 	de Tuncq's 	testimony 	indicates 	that 	he has 	been
innovative.
15

During 	the 	1979-80 	school year 	NHS was 	up 	for 	its
evaluation 	and 	accreditation 	by 	an 	outside 	committee 	of 	school
administrators. 	This 	committee 	commended 	the 	social 	studies
department, 	which was under 	de Tuncq's chairmanship, 	for 	the
variety 	of 	courses 	offered. 	de 	Tuncq 	testified 	that:
On 	that occasion Mr. 	Conner 	was 	quite 	happy
to 	take 	credit 	for 	the 	social 	studies
program 	that 	we 	had 	created.
In 	addition, 	although 	the 	contract calls 	for 	a desired maximum
of 	three 	preparations 	for 	each 	teacher, 	de 	Tuncq voluntarily
carried 	from 	three 	to 	five preps, 	thus 	enabling 	the department
to offer 	a wide 	variety of 	courses.
c. 	de Tuncq's 	Relationship with 	Parents 	and 	Students
1. 	Parent 	and 	Student 	Complaints 	Received 	Between
March 	24, 	1980 and May 12, 1980.
Conner 	stated 	that 	his March 	24, 	1980 	rating of 	"one 	-
effective" 	in 	"relations with 	students" 	and 	"relations with
parents" 	was 	"an 	accurate 	reflection" 	of de Tuncq's performance
in 	that 	area 	up 	to 	that 	time. 	He also 	testified 	that 	this
rating, with 	some exceptions, 	reflects performance 	in prior
years. 	Conner's 	decision 	to 	transfer 	de 	Tuncq was prompted 	by
the number 	of complaints 	about de Tuncq between March 	24, 	1980,
the date 	of his last 	evaluation, 	and 	early May, 	the 	approximate
time 	he decided 	to 	transfer 	de 	Tuncq. 	Conner 	admitted 	the
"inconsistency" 	between 	de 	Tuncq's 	past 	evaluations 	and 	the
current 	allegation 	that 	he 	has 	problems 	with 	parent/student
16

relationships. 	Conner 	explained 	that 	it would 	have 	been
appropriate 	for 	him 	to 	correct 	this 	inconsistency 	by 	issuing
de Tuncq 	another 	evaluation 	reflecting 	the 	complaints 	received
after March 	24. 	However, 	he 	failed 	to do so.
Students 	and 	parents 	testified 	as 	to 	the 	complaints 	they
made 	after 	March 	24. 	Since 	these were 	the 	complaints 	that
prompted Conner 	to act, 	they will be considered 	in detail.
Mark 	Briggs
de 	Tuncq was 	Mark 	Briggs 1 teacher 	for 	personal philosophy
during 	the 	1979-80 	school 	year. 	He 	received 	a D at 	the 	end 	of
the 	third 	quarter.12 As 	is 	the 	case 	with most 	of 	the
complaints 	received 	between March 	24 	and May 	12, 	the 	third
quarter 	grade 	formed 	the 	basis 	of Briggs 	complaint. 	In
addition, 	Briggs 	complained 	that 	de 	Tuncq would 	not 	discuss his
deficiency 	notice when 	questioned 	about 	it 	in 	view of 	the
entire 	class.13 de 	Tuncq 	stated 	that 	he 	refused 	to 	discuss
individual 	grade matters 	in 	such 	a 	forum.
12The 	school year 	at NHS 	is 	divided 	into 	semesters. 	Each
semester 	is 	further 	divided 	into 	two quarters. 	Thus, 	the 	first
and 	second 	quarters make 	up 	the 	first 	semester 	and 	the 	third
and 	fourth 	quarters make 	up 	the 	second 	semester. 	Students
receive 	grades 	at 	the 	end 	of 	each 	quarter, 	but 	these 	grades 	do
not 	appear 	on 	transcripts. 	The only grades 	that 	appear 	on
transcripts 	are 	those 	which 	are 	given 	at 	the 	end 	of each
semester. 	For 	example, 	grades 	for 	the 	third 	and 	fourth
quarters make 	up 	the 	final grade 	for 	the 	second 	semester.
13A 	deficiency 	notice 	is 	a written 	assessment 	of 	a
student's 	standing 	in a class. 	It 	is usually 	issued when a
student 	is 	doing 	poorly.
17

The 	criteria 	for 	grading 	and 	the 	grading 	procedure 	utilized
by de 	Tuncq were 	as much 	a part 	of 	the 	complaint 	as was 	the
actual 	letter 	grade, 	de Tuncq's grading 	system 	in philosophy
consisted 	of 	assigning 	points 	based 	on 	oral participation,
attendance, 	tardies and optional written work. 	Briggs contended
that 	he would 	have 	received 	a B 	rather 	than 	a D 	if 	he 	had 	not
lost 	points 	for 	being 	tardy.
de 	Tuncq 	testified 	that 	Mark 	Briggs 	received 	zero 	for 	the
written 	assignment because his project was 	turned 	in late, 	even
though 	the due 	date 	had 	been 	announced 	early 	in 	the 	semester.
Briggs 	conceded 	that 	the 	project was 	turned 	in 	late. 	de 	Tuncq
further 	testified 	that 	he 	told 	Briggs 	the 	third 	quarter 	grade
was 	not 	final, 	and 	the written project would 	be 	counted 	toward
the 	final grade 	at 	the 	end 	of 	the 	fourth 	quarter.
Briggs 	also 	received 	a 	zero 	in punctuality due 	to 	his 	large
number 	of 	tardies, 	incurred 	as 	a result of Briggs 1 morning
swimming 	practice 	at 	a San 	Rafael pool. 	Briggs 	apparently had
trouble 	arriving 	on 	time 	for 	his 	first 	period 	philosophy 	class
at 	Novato High 	School 	after 	swimming 	practice. 	de 	Tuncq
informed 	Briggs 	that 	athletes 	should 	be 	treated 	the 	same 	as
other 	students 	and 	to 	ignore 	the 	tardies 	in 	this 	case would
afford 	Briggs 	preferential 	treatment, 	something 	de 	Tuncq
declined 	to do.
The 	explanations 	for 	Briggs 1 grade 	were 	communicated 	by
de Tuncq to Mr. 	Gordon Briggs, Mark's 	father, 	at a meeting on
April 	15. 	de Tuncq also 	told Mr. 	Briggs 	that 	he had 	three
18

alternatives 	with 	regard 	to Mark's grade: 	Mr. 	Briggs could
issue Mark 	a grade, 	ask Principal Conner 	to change 	the grade,
or 	write 	a 	letter 	to 	"whomever 	you wish." 	There 	is 	no evidence
that 	de Tuncq was 	discourteous 	to Mr. 	Briggs during 	this
meeting.
Gordon Briggs 	reduced 	his 	version of 	this meeting 	to
writing 	in an April 17 	letter 	to Superintendent Franklin, 	and
sent 	a copy 	to Conner. 	The 	letter 	was 	highly critical of
de Tuncq and 	his 	grading 	criteria. 	Specifically, 	Briggs
criticized 	de 	Tuncq's 	practice 	of 	grading 	based 	on 	attendance
for 	punctuality, 	contending 	essentially 	that 	if Mark 	had 	not
been 	graded 	on punctuality 	he 	would 	have 	received 	a 	B 	for 	the
third 	quarter 	rather 	than a D,
In 	a 	subsequent 	letter 	Gordon Briggs 	asked 	de Tuncq 	to
change Mark's 	grade 	to 	a B. 	de Tuncq discussed 	this matter
with Barry Conner, 	and 	informed Mr. 	Briggs 	by 	letter 	that
Conner 	refused 	to do 	so. 	Mark Briggs 	went on 	to get 	a 	final
grade 	of B 	in 	the course 	by virtue of work done 	in 	the 	final
quarter.
Rebecca Lee 	Bradley
de 	Tuncq was 	Rebecca 	Lee 	Bradley's 	teacher 	for 	American
government 	and 	humanities 	during 	the 	1979-80 	school 	year.
Although 	she 	voiced 	several 	complaints,14 her 	major
14Her 	first 	complaint was 	based 	on 	a 	failing 	grade. 	She
19

dissatisfaction 	was 	based 	on 	de 	Tuncq's 	classroom 	conduct.15
The 	nature 	of 	this complaint 	is 	best 	described 	by her 	testimony.
Q. 	(By Ms. 	Smith) 	Have you ever 	seen Mr.
de Tuncq 	ridicule 	people 	in 	class?
A. 	Yes.
Q. 	Could you give 	an example of 	that
ridicule?
A. 	Well, 	it wouldn't be something, 	I have no
idea what was 	in his mind, 	but 	I don't 	think
it 	is 	something directly destructive 	to, 	you
know, 	like the person, 	you know, 	like I 	think
you're 	terrible and you're awful. 	But, 	you
know, 	he's made 	little comments all 	the 	time.
Nothing 	really extremely 	serious 	like 	I 	think
you 	should 	be dead.
On 	cross-examination 	Bradley 	further 	testified 	about 	the
nature 	of 	her 	complaint:
Q. 	Okay. 	What 	little comments 	did Mr.
de 	Tuncq make?
A. 	That's hard, 	there's 	a lot of comments
that 	teachers make. 	I 	really cannot 	say. 	He
said 	like, 	now you're 	testing my mind 	here,
if you did, 	okay, 	one 	thing 	in his classes,
the 	class 	took participation 	in discussion.
So 	if you 	said 	something he'd say, 	no, 	I
received 	letter 	grades 	of 	B 	in American 	government 	and 	F 	in
humanities. 	She did 	not object 	to 	the grade of 	F. 	Bradley
admitted 	to 	not 	fulfilling 	course 	requirements 	during 	the 	third
quarter 	in 	the humanities course, 	but 	testified 	that 	she
fulfilled 	them during 	the 	fourth 	quarter. 	Since 	the 	fourth
quarter 	grade 	was 	issued 	after 	Conner 	took 	action 	against
de Tuncq, 	Bradley's dissatisfaction with 	that 	grade 	need 	not 	be
addressed.
15Rebecca 	Bradley 	was 	the 	only witness 	who 	testified 	in
any detail 	about 	de Tuncq's 	conduct 	in 	the 	classroom.
20

don't 	think 	you're 	right, 	you 	have 	the 	whole
thing 	wrong 	or 	something 	like 	that, 	or 	—
HEARING 	OFFICER: 	You 	have what? 	I 	didn't
hear 	that.
WITNESS: 	You have 	it wrong. 	I 	feel
something different or, 	I don't know.
Teachers make comments 	all 	the 	time.
Q. 	(By Mr. 	Bezemek) 	Well, 	would 	—
A. 	They 	weren't 	very 	harsh 	comments. 	The 	—
Q. 	He would 	say 	that you're wrong, 	it 	should
be 	this way or 	I 	feel 	it's differently, 	is
that 	what 	he was 	saying?
A. 	Yeah.
Q. 	He was disagreeing 	with 	the 	students'
opinion, 	is that right?
A. 	I 	think 	he was purposely doing 	that 	so
the 	people 	in 	the 	class 	would 	look 	a 	little
harder 	at 	the 	situation.- 	you 	know.- 	answer
better 	questions.
Q. 	Asking 	critical questions?
A. 	Yeah. 	He was 	just doing 	that 	so 	they
would, 	you know, 	speak out more against 	it.
Bradley 	voiced 	only 	one 	specific 	complaint 	regarding 	a
comment made 	by de Tuncq in 	class. 	When 	asked 	by District
counsel 	for 	an 	example 	of 	an 	offensive 	comment 	by de Tuncq,
Bradley 	said:
A. 	All 	right. 	It was 	in my American
government class 	and 	I 	had 	just 	gotten 	into
class 	and 	I 	sat down. 	And 	I had been 	talking
and 	he 	was 	sitting 	in 	his desk 	and 	there 	were
two men, 	two of my 	friends 	in 	front of me 	and
they 	looked 	behind 	me 	and 	I 	smiled 	and 	then
a 	friend 	of 	mine 	named 	Annette 	turned 	around
and 	smiled. 	And 	so, 	he 	told 	us 	to be quiet
and 	then 	he 	said 	I 	know not, 	I don't 	know how
21

hearings 	go but 	this 	is 	probably 	not word 	for
word, 	but 	it 	had 	something 	a lot to do with
this, 	he 	said girl, 	ladies have power of men
or 	something 	like 	that 	and 	do not 	distract
the men 	in the class, 	I, 	that's just one
thing 	I 	remember. 	I 	remember 	at 	the time I
thought 	about 	it 	for 	a long 	time.
Q. 	Was 	that 	statement made 	in a humorous
tone of voice, 	if you recall?
A. 	Sort of, 	I guess 	it would be.
Q. 	Did 	it offend 	you?
A. 	It offended me 	and 	it 	offended 	I 	know
Annette 	and 	a couple of 	girls 	in 	the class
because 	they didn't 	think 	so, 	that, 	you 	know,
girls 	automatically have 	power 	over 	the 	men.
Q. 	So when 	you 	say 	offended 	do you mean
embarrassed 	or 	what 	kind 	of 	other 	word 	would
you 	use?
A. 	Well, 	it embarrassed me, 	I know that.
de Tuncq 	recalled 	this 	incident 	as 	follows:
Q. 	Do you 	recollect 	that?
A. 	Oh, 	yes. 	On that, 	Boatwright and Linda,
Becky Bradley 	sat 	together 	all 	during 	the
course, 	I would 	separate 	them periodically,
but 	this was 	last period 	in 	the day 	and 	their
major 	activity 	in 	the 	course was 	to 	flirt
with 	the boys as 	they came 	in, 	they would,
you 	know, 	draw 	them over 	to 	their 	corner
where 	they were. 	And 	I 	normally would 	have
to 	start class 	by breaking 	up 	that group and
in 	telling 	them to, 	you know, 	you go sit
there and you, 	and 	it was, 	there were usually
about 	three 	or 	four 	fellas 	I'd 	have 	to 	say,
now, 	you go 	to 	that 	side of 	the 	room and 	so
on. 	She 	took 	exception 	to my calling
attention 	to 	the 	fact 	that 	I 	had 	to do 	this
over 	and over 	again. 	So, 	that 	I guess 	is 	a
reprimand 	of 	some 	kind 	to 	tell 	them 	to 	leave
the boys alone.
22

Bradley 	also 	testified 	that 	class 	assignments 	by 	de 	Tuncq
were 	"confusing." 	On 	this 	point 	the 	testimony 	indicates 	the
following, 	de 	Tuncq 	had 	distributed 	written 	instructions 	about
a project 	in his humanities class, 	a course designed 	to study
and 	compare 	civilization 	in Athens 	during 	450 	B.C., 	Florence
during 	1450 	A.D., 	and 	modern New York City. 	These 	instructions
gave 	some 	suggestions 	as 	to 	the 	broad 	range 	of 	subjects 	a
student might 	choose 	for 	his 	or 	her 	project. 	They 	concluded
with 	the 	following 	statement:
See 	the 	instructor 	and 	let 	him 	know what 	you
are 	planning 	so 	that 	you 	can be 	allotted
class 	time and 	also 	not waste 	time 	in an area
that will not be 	suitable.
Without 	consulting de Tuncq. 	Bradley chose 	as 	her 	topic 	the
slaughter 	of 	the 	baby 	harp 	seals 	during 	the 	mid-1970's 	in 	the
St. 	Lawrence River. 	Neither 	her 	choice of a 	topic, 	nor 	the
quality of 	her 	final 	project, 	impressed 	de Tuncq. 	He 	therefore
gave 	Bradley 	a 	low score 	which 	contributed 	to 	her 	grade 	of 	F.
Gloria Bradley, 	Rebecca's mother, 	contacted de Tuncq
through Conner 	about Rebecca's grade 	in 	the Spring of 	1980.
She 	expected 	that 	Rebecca 	would 	do much 	better 	and 	thought 	the
grade was 	unfair. 	At 	that 	time, 	she 	spoke with de Tuncq on 	the
telephone, 	then 	they met and discussed 	Rebecca, 	and de Tuncq
again 	spoke with Mrs. 	Bradley 	at 	a later 	date. 	There 	was 	no
evidence 	presented 	that 	de Tuncq was 	in 	any way discourteous 	or
unprofessional during 	these 	three 	conversations.
23

During 	the 	1979-80 	school 	year 	de 	Tuncq 	issued 	written
reports 	on Rebecca's progress, 	but 	never 	heard 	again 	from Mrs.
Bradley. 	The 	final grade 	in humanities was given 	in June, 	at
the end 	of 	the 	1979-80 	school year, 	but 	it wasn't 	until
September of 1980, 	approximately 3 months later, 	that Mrs.
Bradley 	lodged 	a protest 	about Rebecca's 	grade.
Conner 	did 	not discuss 	any 	of 	the 	foregoing 	incidents
relating 	to 	Rebecca Bradley 	or 	her 	mother 	with 	de Tuncq.
Linda 	Wilhelm
Linda 	Wilhelm 	received 	an F 	from de 	Tuncq 	in 	personal
philosophy 	for 	the 	third 	quarter 	of 	the 	1979-80 	school 	year,
de 	Tuncq 	testified 	that 	the 	F was 	due 	to her 	high 	number 	of
tardies 	and 	her 	failure 	to 	submit 	an evidential 	file* 	Allegedly
Wilhelm 	didn't 	understand 	exactly 	what 	an 	evidential 	file 	was
or 	what was 	required 	in 	the course, 	even 	though 	these matters
had 	been 	communicated 	to 	students 	by de 	Tuncq 	in writing 	early
in 	the 	course.16 de 	Tuncq 	counseled 	her 	that 	she 	would 	have
to meet 	the 	requirements of 	the 	course 	if 	she wanted 	to pass.
During 	the 	fourth 	quarter 	Wilhelm 	thought 	she 	had 	improved, 	so
she 	asked 	de 	Tuncq whether 	her 	deficiency 	notice 	was 	still
16de 	Tuncq distributed 	handouts 	at 	the 	outset 	of 	the
personal 	philosophy 	course 	which 	stated 	the 	course 	requirements
and 	explained 	what was meant 	by 	the 	evidential 	file. 	The
handout 	was 	one 	single-spaced 	typewritten 	page 	and 	explained
the evidential 	file 	in some detail.
24

valid. 	According 	to Wilhelm, 	de Tuncq responded 	that 	he 	had
seen 	no 	"apparent 	improvement."
As 	a 	result 	of 	Linda's 	third 	quarter 	grade 	she 	received 	a
deficiency 	notice 	in 	the 	course. 	This 	prompted 	Linda's mother,
Gail Wilhelm, 	to write 	a letter 	to de Tuncq. 	In an April 	10,
1980 	letter, Mrs. 	Wilhelm asked de Tuncq what Linda 	needed 	to
do 	to 	improve 	her 	standing 	in 	the 	course 	and 	requested 	weekly
reports 	from de Tuncq on Linda's 	progress. 	On April 	14
de 	Tuncq 	responded 	by 	the 	following 	letter:
Linda 	is 	not meeting 	the 	requirements 	in 	the
Philosophy 	course.
I 	have 	included 	copies 	of 	the 	requirements 	so
that you may 	understand 	what 	it 	is 	that 	she
must do 	to get 	a better 	grade. 	From your
letter 	it 	seems 	to me 	that 	she 	has 	not 	fully
informed 	you of what 	she must 	do.
She 	failed 	to hand 	in 	an Evidential 	File 	for
the 	first 	quarter.
She 	also 	failed 	to 	qualify 	for 	the 	points
for 	being on 	time 	to class. 	Twenty-three
students 	received 	the points, 	five did 	not.
Linda 	is 	enrolled 	for 	credit 	in an elective
course. 	She 	needs 	to meet 	the 	requirements
to get credit.
I 	look 	forward 	to 	an 	improvement 	in 	her
academic 	standing.
As 	for 	the weekly 	reports, 	de Tuncq 	testified 	that 	the
course 	did 	not 	lend 	itself 	to 	this 	kind 	of 	reporting 	because
there 	were 	no weekly 	tests 	or 	written 	assignments. 	Since Mrs.
Wilhelm's 	letter 	had 	led 	de Tuncq 	to 	conclude 	that 	she 	didn't
25

understand 	this or 	what 	the 	course was 	about, 	he 	attached 	the
course 	requirements 	and 	course 	description 	to 	his 	letter.
Mrs. 	Wilhelm, 	after a meeting with Conner, 	set up an
appointment 	with 	de Tuncq. 	She 	asked 	him 	if 	it was possible 	for
Linda 	to pass 	the 	course 	and 	get 	credit. 	de Tuncq responded
that 	it was. 	His 	response angered Mrs. 	Wilhelm because,
according 	to her, 	it was 	totally different 	from what 	she
believed 	de 	Tuncq 	told 	Linda 	earlier 	in 	the 	day, 	an 	apparent
reference 	to Linda's 	testimony 	that 	de Tuncq 	said 	he 	had 	seen
no 	improvement 	since 	the 	third 	quarter. 	In 	a 	later 	meeting
with Conner, 	Mrs. 	Wilhelm 	informed 	him of what 	she 	thought was
an 	inconsistency 	in de 	Tuncq's 	statements.
Another 	complaint 	raised 	by Mrs. 	Wilhelm 	involved 	her
testimony 	that Linda 	was 	upset 	after 	an 	earlier 	meeting 	with
deTuncq. 	During 	the meeting, 	according 	to Mrs. 	Wilhelm,
de 	Tuncq 	allegedly 	"degraded" 	Linda 	and 	made 	her 	"grovel."
Mrs. 	Wilhelm was 	not 	at 	that meeting. 	Linda did 	not 	testify
about 	this meeting 	in 	the 	same way, 	nor 	did de Tuncq. 	There
was no testimony, 	other 	than Mrs. 	Wilhelm's, 	that would support
the 	accusation 	that 	de 	Tuncq 	"degraded" 	Linda Wilhelm or 	made
her 	"grovel."
After 	a 	second 	meeting 	between Mrs. 	Wilhelm and 	Barry
Conner, 	Linda dropped 	the 	course on May 	9, 	1980 	and 	received 	no
mark 	for 	the 	fourth 	quarter.
Barry 	Conner 	discussed 	the Wilhelm 	situation 	with 	de 	Tuncq.
26

de Tuncq's 	testimony 	as 	to 	this meeting 	with Conner 	is 	as
follows:
Q. 	Did Mr. 	Conner 	come 	to you and discuss
with 	you 	any 	complaints 	he 	had 	received
about 	your 	treatment 	of 	the Wilhelm child?
Either 	your 	grading 	of 	her 	or 	the 	course
requirements?
A. 	No. 	He did 	say 	that Mrs. 	Wilhelm had
talked 	to him and 	felt 	that 	if 	she 	did 	come
in 	later 	and 	she did 	talk 	to me 	and 	I
reiterated 	verbally 	what 	I'd 	said 	in my
letter 	that 	Linda 	would 	have 	to meet 	the
requirements 	in 	the 	course 	and 	asked 	her 	if
she 	had 	any 	questions 	about 	them and 	she
said 	not. 	And 	that 	left very 	little 	to 	say,
and 	so 	after 	a 	few pleasant 	generalities 	she
left 	and 	then Mr. 	Conner 	did 	say 	to me 	that
Mrs. 	Wilhelm 	felt 	that 	my answers 	had 	been
short.
And 	I 	asked 	him, 	what 	does 	that mean? 	And 	he
said, 	well, 	to me 	it means 	that you were
rude. 	We didn't 	argue 	about anything. 	she
asked about 	the course, 	I explained 	it, 	and
explained 	to 	her 	what 	Linda 	would 	have 	to do
in 	order 	to pass 	the 	course 	and 	that was 	the
end 	of 	the conversation. 	It was 	quite 	short
and 	very 	innocuous.
Q. 	When 	did 	that 	take place?
A. 	Well, 	it was after April 14. 	I 	think 	it
was 	about 	the 	time 	at which 	Linda 	decided 	to
drop 	the 	course. 	There was 	a 	flurry of
students 	who 	dropped 	philosophy 	following
Mark Briggs 	confrontation with 	me 	in 	class
about 	his 	deficiency 	notice.
Maureen 	Slevin
Maureen 	Slevin 	received 	an F 	in de 	Tuncq's 	personal
philosophy class 	for 	the 	third 	quarter 	of 	the 	1979-80 	school
year. 	Slevin did 	not hand 	in an evidential 	file. 	She was
awarded 	65 	out of 	a possible 	100 	in oral participation, 	and 	no
27

points 	for 	attendance. 	According 	to de Tuncq, 	Slevin had 	no
interest 	in the class.
Slevin 	testified 	that 	she went 	to Mr. 	James 	Ross, 	assistant
principal 	at Novato High School, 	and 	"proceeded 	to 	talk 	to Mr.
Ross 	and 	see 	if 	I 	could 	get out of 	the class because 	I 	needed
it 	to 	graduate 	from high 	school." 	She 	testified 	that 	she 	had
received 	a poor 	progress 	report, 	and 	thought 	it 	"unfair" 	to
grade 	students 	only 	on 	class 	participation 	under 	the 	system
utilized 	by de Tuncq. 	This 	essentially was 	Slevin's 	reason 	for
dropping 	the 	course.
Another 	complaint 	raised 	by 	Slevin 	in 	her 	written
statement17 was 	that 	"when 	it 	came 	time 	for 	the 	third 	quarter
to 	end Mr. 	de Tuncq went 	around 	the 	room 	looked 	at 	each
student, 	and 	from 	the 	top of 	his 	head 	gave 	him a 	number 	of
points 	for 	class 	participation. 	To 	some he 	gave 	high 	points
when 	I 	have 	never 	heard 	these 	people 	say 	a word. 	I don't 	think
this 	is 	a 	very 	accurate way 	of 	grading."
de 	Tuncq 	explained 	his 	method 	of 	assigning 	points 	for 	oral
participation as 	follows:
Q. 	How do you decide whether 	to award
certain points 	for 	oral 	participation 	to one
student 	as 	opposed 	to 	another?
1 7 R O S S asked 	Slevin 	for 	a 	written 	statement 	of 	her
experiences 	in de Tuncq's class. 	Slevin drafted 	the 	statement
and gave 	it 	to Ross, 	who presented 	it 	to Conner 	without
discussion 	with 	de 	Tuncq.
28

A. 	Well, 	oral participation 	in the
philosophy course means, 	first of all, 	that
you're 	there 	to hear 	what's 	going 	on. 	Then
it 	also 	indicates 	that 	I've 	observed 	you
listening as, 	you observe 	students 	in 	the
classroom by 	the mid-term, 	halfway point,
you've observed 	them 	for 	about 	45 	hours. 	And
you get 	to know 	students pretty well, 	they
have 	general patterns, 	there are 	some people
who 	listen 	and 	never 	say 	anything 	but 	it's
obvious 	that 	they 	are 	following 	what's 	going
on 	all 	over 	the 	room, 	they're 	interested.
There 	are 	other 	students 	who may 	be 	trying 	to
work 	on 	their 	algebra which 	is 	due 	the 	next
period, 	for 	sure 	they are 	not with 	the
course. 	Then 	there 	are 	some 	students 	who
will 	simply 	repeat 	back 	in different 	words
what 	some other 	student 	has 	said. 	There 	are
students 	who will 	rephrase 	something 	out 	of
the book. 	There 	are, 	one way you always
start a discussion, 	or 	one 	good way 	to 	start
it 	is 	to get people 	to simply recall what
they 	read. 	And 	there 	are 	some 	students who
take 	part only 	at 	that 	level 	and 	simply 	say
yes 	the 	book 	said 	this 	that 	and 	the 	other
thing. 	And 	there 	are 	other 	students 	who will
see 	inferences 	and 	introduce 	ideas 	and 	then
finally, 	there 	are 	students who will
synthesize what 	they have 	heard 	in class,
what 	I've 	talked 	about, 	what 	they've 	read 	in
the 	book 	and 	indicate 	that 	they have 	found
out 	something 	for 	themself. 	And 	sometimes
it's 	only of 	personal 	value 	and 	other 	times
it's 	something 	that 	has 	real value 	to 	the
other 	students. 	So, 	that by 	the 	time 	I've
observed 	these 	students 	for 	40-45 hours, 	I
feel 	pretty 	good 	about 	making 	an 	assessment.
The points go by fives, 	just because 	it's
easier 	to add 	up 	in 	the 	grade book, 	and 	I
don't give anybody less 	than, 	say, 	25 points
out 	of 	the 	100 	possible 	and 	generally 	95 	is
about as 	high 	as you go. 	It's 	a principle
in measuring 	if 	you're 	running 	on 	the 	end 	of
the 	scale you're 	not measuring, 	you have,
that 	indicates 	that you ought 	to have 	a
longer 	scale. 	So 	the 	range 	runs 	from about
25 	to 95 points.
Q. 	Do you assign 	the 	grades 	then
arbitrarily?
29

A. 	No, 	they're 	based 	on my 	observation 	of
the students.
Slevin dropped 	the 	class 	on May 	7, 	1980 	and 	received 	no
mark. 	She 	worked 	as 	Ross' 	student 	assistant 	and 	received
enough 	credits 	to graduate. 	At 	the 	time 	Slevin dropped 	the
course 	de Tuncq signed 	the 	necessary papers, 	but he 	never
received 	a 	copy 	of 	Slevin's 	written 	account 	of 	her 	experience
in his class. 	He 	did 	not 	see 	Slevin 	again or 	hear 	any of 	these
complaints 	until 	she 	appeared 	to 	testify at 	the 	hearing. 	Connor
and 	de 	Tuncq 	had 	no 	communication 	regarding 	the 	Slevin 	incident.
There 	is 	no 	evidence 	that 	Ross 	ever 	approached 	de 	Tuncq about
the 	substance 	of 	Slevin's 	complaints.
Deborah 	Hagan
de 	Tuncq was 	Deborah 	Hagan's 	teacher 	for 	personal 	philosophy
during 	the 	1979-80 	school year. 	She 	testified 	that 	she 	had 	a
"personality 	problem" 	with 	de 	Tuncq 	and 	considered 	transferring
"about 	a 	week-and-a-half 	after 	the 	course 	began." 	She 	decided
to stick 	it out, 	however, 	and 	received a D for 	the 	third
quarter. 	The 	essence 	of Hagan's complaint 	is 	that 	she disagreed
with 	her 	grade 	and 	with 	de 	Tuncq's 	explanation 	of 	the 	grade.
She 	testified 	as 	follows:
Q. 	(By Ms. 	Smith) 	Did you ask Mr. 	de Tuncq
for 	an explanation of 	the 	D?
A. 	I 	went 	to him after 	class one 	day 	after
I 	had 	received 	the D 	and 	I 	told 	him 	that 	I
didn't 	think 	I 	deserved 	a D 	in his 	class.
He 	said 	thank 	you 	for 	your 	opinion 	and 	he
walked 	away 	and 	left 	the 	class.
30

Q. 	Did 	you 	talk 	to Mr. 	de Tuncq again 	about
this 	matter?
A. 	I went home that 	afternoon. 	I was very
angry, 	and 	so 	the next day after 	class 	again,
I 	went 	up 	to him and 	asked 	him why 	I 	got 	a D
and 	he 	handed 	me 	some 	charts 	with 	a 	bunch 	of
markings on 	it 	and 	he 	said 	that 	this 	is why
you 	got 	the 	D 	and 	he 	didn't 	really 	explain
anything 	to me. 	He 	told me 	that 	if 	I
fulfilled 	the 	requirements of 	the 	course 	I
could 	get 	a better 	grade.
Q. 	Okay. 	Did 	you 	know what 	the requirements
of 	the 	course 	were?
A. 	We 	received 	a dittoed 	out 	sheet 	for 	all
his 	courses 	and 	it was 	very general 	and 	so,
I guess, I was aware, yes.
Q. 	Do you 	recall 	what 	those 	requirements
were?
A. 	Being on 	time 	to class, 	being present 	at
the 	class 	and 	filling 	the 	requirements 	oh
no, 	that wasn't 	it, 	participating orally in
the 	class 	and 	turning 	in an evidential 	file
which 	was 	an optional 	requirement.
In Hagan's view 	she 	completed 	all 	assignments 	and 	deserved 	a
higher 	grade.
Hagan's 	second 	complaint 	involved 	her 	attempts 	to 	schedule
a meeting 	between 	her 	mother 	and 	de Tuncq. 	According 	to 	Hagan,
de 	Tuncq 	agreed 	to meet 	with 	her 	mother 	during 	second 	period,
de Tuncq's 	preparation period. 	When 	she 	approached 	de Tuncq 	at
the 	beginning 	of 	her 	first 	period 	philosophy 	class 	to 	tell 	him
that 	her 	mother 	would 	be 	there 	during 	second 	period, 	de 	Tuncq
said 	that 	he didn't 	have 	a meeting 	scheduled. 	Hagan 	further
testified 	that 	de Tuncq 	said 	she 	would 	be 	given 	a 	tardy 	if 	she
left 	the class 	to 	call 	her 	mother. 	Hagan nevertheless 	did 	so
31

and 	cancelled 	the 	appointment. 	There 	is 	no 	evidence 	that 	she
was 	marked 	tardy. 	Both 	Deborah 	Hagan 	and 	her 	mother 	complained
to Barry Conner 	that 	day 	about 	this 	incident.
de 	Tuncq 	described 	the 	missed 	appointment 	incident 	as
follows:
Q. 	Did you miss 	an appointment 	that 	had
been 	scheduled 	by 	Deborah 	Hagan?
A. 	No.
Q. 	With 	her 	mother?
A. 	I 	did 	not 	have an 	appointment with Mrs.
Hagan. 	Debbie 	had 	asked me 	about 	an
appointment 	for 	her 	mother 	and 	I 	said 	that 	I
would, 	that 	I 	have 	second 	period prep and
that 	I 	would 	be 	happy 	to 	talk 	to her 	and
that 	we 	could 	schedule 	it 	any 	second
period. 	But 	apparently 	Debbie 	took 	that 	as
meaning 	that 	her 	mother 	could walk 	in 	any
day 	second 	period 	and 	I 	would 	be 	there.
And, 	of course, 	what 	happened was 	she walked
in 	and 	I 	found 	that 	the 	counselor 	had
already 	scheduled 	a parent, 	counselors do
this 	they 	know when our preps 	are, 	and 	so 	I
had 	to 	tell 	Debbie 	that 	I 	was 	terribly 	sorry
but 	could 	her 	mother 	come 	back 	the 	following
day 	and 	I 	think 	that was 	when 	we did 	have,
I'm not 	sure 	if 	she 	came 	back 	the 	following
day. 	She came 	back 	the 	first 	opportunity
she had, 	I didn't have anything else 	that
was 	a conflict 	and 	so we 	did 	finally 	talk.
Q. 	When 	you 	say 	a 	counselor 	had 	scheduled 	a
parent, 	do you mean 	to 	say you had 	another
parent 	conference 	at 	the 	same 	time?
A. 	Yes.
Q. 	Did Mr. 	Conner 	discuss with you 	the
question 	of 	whether 	or 	not you 	had 	missed 	or
failed 	to 	keep 	an 	appointment with 	Deborah
Hagan's 	mother?
A. 	No.
32

Hagan's 	next 	complaint 	stems 	from 	comments 	de 	Tuncq made
during 	a meeting 	with 	her 	mother. 	According 	to Hagan, 	de 	Tuncq
said 	she 	was 	not 	"college material" 	and 	"he would 	not 	waste 	his
money 	sending me 	off 	to 	school." 	Deborah 	and 	her 	mother 	met
with Conner 	after 	their 	meeting 	with 	de 	Tuncq and 	told 	him 	of
their 	version 	of 	the 	meeting. 	de 	Tuncq described 	the
conversation 	about Hagan's 	future 	in college 	as 	follows:
Q. 	Did 	you 	tell 	Deborah 	Hagan 	that 	she was
not 	of 	college material 	and 	that 	her 	mother
shouldn't 	waste 	money 	on 	her?
A. 	Well, 	no, 	that wasn't quite what I 	said,
but 	the 	subject was 	in 	the conversation.
Q. 	Let me ask you 	this, 	how did 	the 	subject
arise?
A. 	The 	subject 	arose 	because Ms. Hagan
asked 	me 	for 	my 	estimate 	of 	Debbie 	as 	a
college 	student 	and 	this 	was 	at 	the 	end 	of 	a
conversation that Debbie, 	her mother, 	and I
shared 	in office 	and 	Debbie's 	mother 	wanted
to know about 	the 	course, 	how she was
graded, 	what 	she hadn't done, 	why 	she'd
received 	the 	low grade, 	and 	so on. 	But
Debbie 	kept 	interrupting 	us 	and 	finally 	her
mother, 	who 	I 	assumed 	as a parent would 	tell
her 	to sit down 	and 	be quiet, 	wouldn't 	and
finally Debbie 	ran over 	to me 	as 	I 	was
trying 	to answer 	her 	mother 	and 	I 	told, 	I
said Debbie 	sit 	down and 	be quiet. 	And 	her
mother 	didn't 	object 	and 	we 	went on 	and
finished 	and 	by 	the 	end 	we 	were 	getting
along 	so well 	that 	she 	said well, 	what 	do
you 	think 	about 	Debbie 	as 	college material
and 	I 	said well, 	only based, 	I've only had
her 	in 	this one 	course. 	And 	that at 	this
point 	she doesn't 	strike me 	as 	being mature
enough 	to 	really 	be 	able 	to do 	academic 	work
at 	the college 	level very well 	and 	I
recommended 	that 	rather 	than 	sending, 	Ms.
Hagan was 	talking 	about 	a 	university 	like
33

Berkeley and 	I 	said well, 	that 	I 	really
recommend 	that 	she 	try Debbie 	first 	of 	all
in 	a 	good 	junior 	college 	setting 	where 	she
can 	transfer 	her 	units 	and 	to 	see 	how
seriously academic Debbie 	is. 	And 	what 	I
said was 	that 	it 	costs 	nothing 	to have 	her
stay 	at 	home 	and 	go 	to 	either 	IVC 	or 	College
of Marin. 	But 	based 	on what 	I'd 	seen 	that 	I
would 	recommend 	that 	course 	rather 	than 	the
high cost of a 	school 	like Berkeley 	for 	her
opening 	undergraduate 	work.
Conner 	described 	the 	meeting 	between 	de 	Tuncq and 	the Hagans 	in
his May 	12, 	1980 	letter 	to Superintendent Frankin as 	follows:
Mrs. 	Hagan, mother of Debbie Hagan, 	requested
a 	meeting 	with 	me 	on 	the 	morning 	of May 	9,
in 	connection with Debbie's 	class 	with Mr.
de Tuncq.
Mrs. 	Hagan 	indicated 	that 	they 	had 	just met
with Mr. 	deTuncq and 	that he 	had 	received
them politely. 	Debbie 	felt 	that 	there 	was 	a
clash 	of 	personalities 	between 	she 	and Mr.
de Tuncq, 	but would 	be 	doing 	all of 	the
course work, 	as outlined by Mr. de Tuncq, 	for
the 	remainder 	of 	the 	semester.
Mrs. 	Hagan did 	say that Mr, 	deTuncq 	indicated
that 	Debbie 	could do a paper 	to be 	turned
in, 	that would meet 	some part of 	the course
requirements. 	Mrs. 	Hagan further 	indicated
that Mr. 	de Tuncq would not, 	however, 	grade
and 	return Debbie's 	paper, 	because 	he 	felt
that 	this 	paper 	could 	be 	used 	again by other
students, 	if it was returned.
Robin 	Hettrich
Robin Hettrich was 	enrolled 	in de Tuncq's 	humanities 	class
during 	the 	1979-80 	school year. 	She 	received 	a D for 	the 	third
quarter. 	Hettrich 	handed 	in an evidential 	file, 	but 	received
no points 	for 	attendance 	because 	of 	frequent 	absences 	due 	to
illness 	during 	the 	quarter. 	Hettrich 	thought 	her 	grade 	was
34

unfair 	because 	she 	"worked 	really 	hard 	in 	the 	classroom." 	Upon
her 	return 	to class 	she 	and 	de 	Tuncq discussed 	making 	up 	the
missed 	classes, 	but de Tuncq 	said 	there 	was 	nothing 	he 	could 	do
about 	it. 	According 	to de Tuncq, 	she 	simply 	"missed 	the
course."
At 	a 	later 	date, 	Hettrich 	received 	an unfavorable progress
report 	which 	she 	interpreted 	as 	an 	indication 	that 	she 	would
not pass 	the 	course 	if 	she did 	the 	same 	amount 	of work 	in 	the
fourth 	quarter 	as 	she did 	in 	the 	third 	quarter. 	At 	that 	point
Hettrich 	stopped 	attending 	classes. 	After 	9 	truancies, 	she was
called 	in 	by 	her 	counselor 	who 	suggested 	she 	discuss 	the 	matter
with 	de Tuncq. 	She did, 	but 	according 	to Hettrich 	they 	could
not 	"work 	things 	out." 	She 	received 	"no mark" 	for 	the 	fourth
quarter. 	Hettrich dropped 	the course on May 	22, 	1980, 	after
Conner 	had 	announced de Tuncq's 	transfer. 	In 	fact, 	Conner
admitted 	that 	the 	entire Hettrich 	matter 	did 	not come 	to 	his
attention 	until 	after May 	22.
d. 	The May 12, 	1980 Memo 	to Superintendent Franklin
On May 	12, 	1980 	Conner 	sent 	a memorandum 	to Superintendent
Franklin 	describing 	the 	"recent 	incidents 	concerning 	George
de Tuncq." 	This 	letter 	included 	a 	short 	description of 	all
those 	complaints 	described 	above, 	except 	for 	those 	involving
Slevin 	and 	Hettrich. 	In 	addition, 	the 	letter 	outlined 	other
complaints 	as 	described 	below.
The memo cited 	a complaint by Susan Kirkwood, 	a 	student 	in
35

de Tuncq's 	personal philosophy class. 	Conner 	described
Kirkwood's complaint as 	follows:
According 	to Susan, 	there have 	been 	no
assignments 	nor 	tests 	in this class. 	Mrs.
Kirkwood 	indicated 	that Mr. 	de Tuncq said
that 	his 	class 	was 	for 	brighter 	students.
After 	a 	lengthy conversation 	between Mr.
de Tuncq and Mrs. 	Kirkwood, Mr. 	de Tuncq
stated 	that Susan must pass 	the 	final 	in
order 	to pass 	the course. 	At 	the 	same 	time,
Susan 	felt 	that 	she 	has 	never 	been 	informed
of 	the 	course 	expectations 	until 	"recent
weeks." 	I 	encouraged Susan 	to meet 	all 	of
the course 	requirements, 	as outlined 	by Mr.
de 	Tuncq.
As 	evidenced 	by 	the March 	24 	evaluation, 	Conner 	was 	well
aware 	of 	the 	"clarity with 	which 	[de Tuncq] 	gives 	assignments."
And 	he 	never 	suggested 	any modification 	or 	in 	any 	other 	way
questioned 	the 	way 	de 	Tuncq 	assigned 	work. 	Neither 	Susan
Kirkwood 	nor 	her 	mother 	testified 	at 	the 	hearing. 	Kirkwood
dropped 	the 	course on May 	12. 	Her 	grade 	at 	the 	time was 	an F.
She had 	turned 	in no written work, 	had 	low attendance, 	and 	had
only 	average 	oral 	participation. 	Conner 	never 	discussed 	the
Kirkwood 	matter 	with 	de 	Tuncq.
The 	same memo 	included 	a reference 	to Catherine Barsch 	as
one of 	the 	"recent 	incidents" 	concerning de Tuncq. 	This
"incident" 	was described 	in 	the memo as 	follows:
Catherine 	Barsch 	received 	a 	progress 	report
from Mr. 	de Tuncq, dated April 22, 	1980,
indicating 	that 	she 	is 	near 	failing,
according 	to her counselor, 	Dr. 	Eddy. 	Mr.
de Tuncq's 	statement was 	as 	follows: 	"Based
on Catherine's 	performance 	in 	the 	first 	part
of 	the course, 	I estimate 	that she will not
36

do 	enough 	work 	of 	sufficient 	quality 	to 	earn
credit 	in the course."
As Catherine 	needs 	the 	units 	from 	this 	course
to graduate, 	Dr. 	Eddy encouraged her 	to
remain 	in 	the 	class 	and 	strive 	for 	a passing
grade. 	Her 	overall 	grade point 	average 	at
this 	time 	is 3.50.
Barsch 	did 	not 	testify 	at 	the 	hearing. 	Conner 	never 	discussed
this 	student's 	situation with de 	Tuncq.
Conner 	described 	an 	incident 	involving 	Sharon 	Silva 	as
follows:
On Monday, May 12, Mrs. 	Dress honored a
request 	from Sharon 	Silva 	to drop Mr.
de Tuncq's class, 	with 	a grade of 	"No Mark,"
stating 	the 	following 	reason(s):
"Mr. 	de Tuncq either 	ignores me when 	I 	try
to talk 	(a requirement of 	the class) 	or
informs me 	I 	can 	transfer 	out 	and 	then
offers 	to flunk me 	for 	not 	speaking."
Sharon's mother, Mrs. 	Delores Silva Lees,
signed 	the 	application 	for 	a 	program change,
stating, 	"She can 	transfer out."
de Tuncq 	testified 	that 	he 	could 	not 	recall 	"her 	being 	a 	very
eager 	participant" 	in class. 	Neither 	Silva nor 	her 	mother
testified 	at 	the 	hearing. 	Conner 	never 	discussed 	the 	Silva
matter 	with 	de Tuncq.
e. 	Other 	Parent 	and 	Student Complaints
In 	support 	of 	the 	District's 	position 	that 	de 	Tuncq was
transferred 	due 	to his 	poor 	relationship with 	students 	and
parents, 	Barry Conner 	recounted 	three previous 	incidents. 	Each
of 	these occurred prior 	to March 	24, 	1980, 	the date de Tuncq
received 	his 	final written 	evaluation 	from Conner.
37

Conner 	testified 	as 	to 	two 	incidents 	regarding Diana 	Ziss.
In November 	1978 	de 	Tuncq 	allegedly 	refused 	to 	show 	Ziss 	her
evidential 	file. 	Conner 	wrote a memo 	to de Tuncq outlining 	the
problem 	and 	asking 	de 	Tuncq 	if 	he 	could 	help clarify 	the 	matter.
The 	second 	incident 	involving 	Ziss 	stemmed 	from de 	Tuncq's 	offer
to 	change 	Ziss' 	grade 	from an F 	to an A during 	a meeting 	with
the 	student 	and 	her 	parents. 	de Tuncq 	said 	he 	made 	the 	offer 	in
"exasperation." 	After 	several meetings 	and 	letters, 	the matter
was 	dropped 	and 	the 	grade 	not 	changed.
Another 	incident 	referred 	to 	by Barry Conner 	in 	his
testimony 	involved 	John Cheney. 	Cheney 	had 	been 	in 	several
other 	schools 	before 	enrolling 	at Novato High 	School 	at mid-
term. 	Conner 	wanted 	to place Cheney 	in 	de Tuncq's class 	but
de 	Tuncq resisted, 	saying 	it was 	unfair 	to 	the 	student 	because
he 	had 	been 	in a 	different program and 	would 	be 	behind 	if 	placed
in 	this particular 	class. 	However, 	de Tuncq did 	not 	refuse 	to
enroll Cheney 	in his class. 	Barry Conner 	then decided 	to place
Cheney 	in 	another 	class. 	The Cheney 	incident occurred 	in
October 	1979. 	There 	was 	no evidence presented 	that Cheney or
his 	parents 	complained 	about 	the 	incident.
Conner 	also 	identified 	Tracy Morrill 	as 	a 	student 	who
complained 	about 	de Tuncq. 	Near 	the 	end 	of 	the 	1978-79 	school
year Morrill 	asked 	to be 	excused 	from her 	remaining 	studies 	so
that 	she could visit 	relatives 	out of 	state. 	Her 	counselor
circulated 	a 	memo 	to Morrill's 	teachers 	asking 	if 	her 	leaving
38

early 	would 	present 	a 	problem 	to her 	graduating. 	Graduation
was 	to occur 	in June 	upon her 	return 	to California. 	Along 	with
Morrill's other 	teachers, 	de Tuncq signed 	the 	request, 	thus
indicating 	that 	it would be 	all 	right 	for Morrill 	to 	leave. 	At
the 	end 	of 	the 	term Tracy Morrill 	returned 	from out 	of 	state 	and
was 	informed 	on 	the 	morning 	of 	her 	graduation 	ceremony 	that 	she
would 	not 	be 	permitted 	to graduate 	because 	she 	failed 	de 	Tuncq's
course. 	Morrill 	vigorously complained 	to 	both Conner 	and
de Tuncq. 	Various 	counselors 	in 	the 	school 	also complained 	to
de 	Tuncq 	about 	his 	actions. 	de 	Tuncq 	testified 	that 	his 	signing
the 	release was an unfortunate mistake. 	If 	asked, 	he 	would 	have
changed 	the 	grade 	so 	that 	Morrill 	could 	have 	graduated 	with 	her
class,
f. 	de Tuncq's Grading 	and 	Drop Policies.
These 	complaints 	call 	into 	issue 	de Tuncq's grading 	policy,
especially as 	it relates 	to attendance. 	In addition, 	they
involve 	de 	Tuncq's 	drop 	policy.18 de 	Tuncq 	described 	his
drop policy 	as 	follows:
Q. 	Can you 	explain what 	your 	drop policy 	is?
A. 	My drop policy 	for 	all 	students 	is 	that
at 	any 	time 	if 	a 	student wishes 	to withdraw
they may 	withdraw 	and 	that 	they 	will 	receive
no mark 	on 	their 	transcript. 	And 	the 	purpose
behind 	this 	is 	that 	I 	think 	that no 	student
should 	be 	forced 	to 	take 	an F 	if 	they want
18 Both 	policies 	are 	described 	in 	handouts 	to 	students 	at
the 	beginning 	of 	a 	term.
39

to maintain 	a 	rather 	clean 	looking
transcript, 	I don't object 	to 	their 	simply
withdrawing 	because 	they don't 	get 	credit,
in effect, 	what 	they do if 	they stay 	in a
class 	for 	a long 	time 	and 	then withdraw 	is
they've 	simply 	spent 	their 	time. 	Students
in our 	high 	school 	are 	required 	to 	take 	160
units 	in order 	to graduate.
There's 	a pattern 	in which 	students 	take
courses. 	The 	ideal 	at Novato High School
in 	your 	three 	years 	is 	to 	load 	up during
the 	first 	two years 	so 	that when you're 	a
senior 	you only have 	to go 	to 	school half 	a
day. 	And 	students prefer, 	they have 	this
extra 	time, 	they could 	spend more 	time, 	it's
easy 	to get 160 	units within 	three years.
Many of 	them prefer 	to 	say oh, 	what 	the 	heck,
you 	know, 	I'll 	just drop 	that one 	and make 	it
up later. 	And 	as 	long 	as 	this 	is 	the way 	the
requirements 	bear 	to, 	the 	time 	that 	they are
in 	school and 	the 	faculty has 	said 	that 	they
would 	like 	to 	have 	the 	requirements 	raised
you 	get 	a pattern where 	students 	want 	to
withdraw 	without 	penalty 	and 	just 	say 	I'm
going 	to leave 	this class. 	And 	I don't
object 	to 	that 	given 	the 	arrangement 	of our
school.
Students 	who dropped 	a course 	could 	receive 	a 	"grade 	to date" 	or
a 	"no mark." 	Students 	only 	receive 	credit 	for 	the 	grade 	at 	the
end 	of 	a 	semester. 	The 	first 	quarter 	grade 	in a 	semester
carries no 	credit.
de Tuncq 	testified 	that 	each 	of 	the 	five 	other 	teachers 	in
the 	social 	studies department 	at 	Novato High 	School 	have
different variations 	of 	a drop policy. 	He 	described 	each
teacher's 	policy. 	When 	asked 	if other 	teachers 	in 	the 	social
studies 	department 	permit 	students 	to drop classes 	without
receiving a 	grade, 	Conner 	replied 	that he did 	not 	know, 	and he
40
•

never 	made 	any 	attempt 	to 	find out. 	According 	to Conner, 	a
teacher 	has 	the prerogative 	of 	letting 	a 	student 	who 	is
receiving 	a D or 	an F drop a 	course. 	Apparently 	no single
policy 	is 	in effect at Novato High 	School.
In 	testifying 	about 	Robin 	Hettrich's 	problems 	with
attendance, 	de Tuncq described 	his 	grading policy 	as 	it 	relates
to attendance:
Q. 	Do you 	recall 	if Hettrich 	had 	a problem
with 	attendance?
A. 	Yes, 	she had many absences 	and 	she had
missed, 	I can't 	remember 	what percentage of
the 	instruction now, 	but we, 	the 	faculty of
Novato High School 	back 	in 	the 	early 	70's 	in
faculty meeting 	voted 	that 	it was 	a
reasonable 	idea 	as 	far 	as 	the 	faculty was
concerned 	that 	any 	student 	that 	missed 	more
than 	20 days of 	a one 	semester 	course,- 	and
most 	one 	semester 	courses 	are 	about 	90 	hours,
90 days, 	that 	this was a 	reasonable basis on
which 	to 	issue an F grade 	to a student. 	My
own policy 	is 	that 	because calendars vary, 	I
just 	say you have 	to attend 	80 percent 	of 	the
class 	session. 	There 	is 	something 	going on
in class, 	a discussion, a film, 	something is
going 	on 	and 	that when you 	miss 	the
instructional 	program 	that 	it 	—
(Change 	of 	tape)
WITNESS: 	— 	than 	going 	on 	there 	and 	it's 	my
policy 	to 	count 	every 	student's 	attendance
and 	see 	which 	students 	have 	been 	absent 	the
most 	and 	not 	give 	them 	the points 	for
actually 	being 	there. 	And 	Robin objected 	to
that, 	she 	said her 	absences were excused 	and
I 	said yes, 	but you missed 	the course. 	And
this 	was 	a dispute 	between Robin 	and myself.
Barry Conner 	testified 	that 	he was 	aware 	of 	de 	Tuncq's 	use
of 	attendance 	in 	grading 	and 	drop policy, 	although he 	disagrees
41

that 	the 	20-day 	rule 	is 	applied 	school-wide 	at NHS. 	de 	Tuncq's
uncontroverted 	testimony 	indicates 	that, 	although Conner 	was
aware 	of 	de Tuncq's practice, 	he 	never 	took 	any 	affirmative
steps 	to change 	it. 	In 	fact, 	Conner 	testified 	that 	a 	teacher
has 	the 	option of 	using attendance 	as 	a 	factor 	in grading 	and 	it
is 	up 	to 	the 	individual 	teacher 	to make 	the decision on whether
to do 	so. 	Moreover, 	other 	teachers 	at NHS 	used 	the 	same policy.
Regarding 	both 	the drop policy 	and 	use 	of 	attendance 	in grading,
de Tuncq 	testified 	as 	follows:
Q. 	Now, 	was Mr. 	Conner 	aware of your policy
on dropping 	classes 	by 	students 	who wished
to do 	so?
A. 	Yes, he was.
Q. 	How was 	he aware 	of 	that?
A. 	He 	evaluated 	me 	and 	following 	each
observation, 	he writes 	up a document of what
he 	observed 	that 	day 	and 	then he 	calls 	me 	in
and we go over 	it 	and 	I 	have 	to sign 	it. 	And
so every year, 	several times, 	he had an
opportunity 	to 	talk 	to me 	about what 	I 	was
doing in class, 	subject matter, 	what he
actually observed 	that 	day, 	as well 	as
grading policies, 	absence policies, 	and so
on. 	I don't believe 	that 	there's 	an area
that, 	where 	I 	have 	any 	regular 	practice 	that
he hasn't, 	that he and 	I haven't gone over.
And 	I've made 	it 	a point 	to bring 	this 	up 	to
him 	because 	I 	think 	that 	I've 	recommended 	to
him 	that 	he 	require 	all 	teachers 	to write
their 	policies 	and 	put 	them on 	file with 	him
so 	that 	he 	knows 	of 	them. 	. . .
Size 	of de 	Tuncq's 	Classes
One 	of 	the 	reasons 	offered 	by 	the 	District 	for 	de 	Tuncq's
transfer 	was 	that 	students 	dropped 	his 	class 	in 	high 	numbers
42

and he 	therefore 	regularly carried 	a 	low class 	load. 	The 	size
of 	de 	Tuncq's 	classes 	are 	apparently 	offered 	to 	show 	that
students 	dropped 	out 	because 	of 	legitimate 	complaints 	about
de 	Tuncq.
On 	this 	subject 	the 	District 	introduced 	into 	evidence 	an
exhibit 	which 	included 	class 	size 	statistics 	in 	the 	form of 	a
series 	of charts 	for 	each 	of 	the 	teachers 	in 	the 	social 	studies
department 	during 	school 	years 	1977-78 	through 	1979-80. 	Conner
compiled 	these 	statistics 	and 	prepared 	this 	document 	in July
1980. 	The 	charts 	included 	the 	names of 	teachers, 	the number 	of
students 	per 	period 	at 	the 	beginning of 	the 	semester, 	the 	number
of 	students 	per 	period 	at 	the 	end of 	the 	semester, 	and 	the 	total
number 	of 	students per 	teacher 	at 	the 	beginning 	and 	at 	the 	end
of each 	semester. 	These 	statistics, 	as 	summarized by 	the
District, 	show 	that 	de 	Tuncq 	routinely 	had 	a 	lower 	average 	class
size 	than other 	teachers 	in 	the department.
For 	the 	following 	reasons 	the 	hearing 	officer 	finds 	that
these 	statistics, 	taken 	separately or 	as 	summarized 	by 	the
District, 	have little, 	if any, probative value with respect to
the 	issue 	of 	whether 	students 	had 	valid 	complaints 	about
de 	Tuncq. 	The 	statistics 	don't 	establish 	why 	students 	signed
up 	for 	particular 	courses, 	nor 	do 	they 	show 	the 	reasons 	students
may 	have 	had 	for 	dropping 	any 	given 	course. 	They do not 	show
what 	courses 	were 	covered, 	nor 	do 	they 	show what 	courses 	were
taught 	by any of 	the 	individual 	teachers. 	The 	statistics 	don't
43

show 	if 	the 	courses 	taught 	were 	required 	or 	elective. 	Though
Conner 	testified 	that 	he 	used 	these 	statistics 	as 	a 	factor 	in
deciding 	to 	transfer 	de Tuncq, 	on cross-examination 	he 	could
answer 	none 	of 	the 	foregoing 	questions.
Furthermore, 	the 	record 	shows 	that many of 	the 	students
reflected 	in 	these 	statistics 	as 	"drops" 	from de Tuncq's
courses 	were 	near 	failing. 	Conner 	testified 	that 	one 	problem
with 	de Tuncq was 	that 	there 	seemed 	to be 	confusion 	about 	his
grading policy. 	Thus, 	it 	is 	reasonable 	to 	infer 	that 	some
students 	who 	dropped 	de Tuncq's 	course 	did 	so 	due 	to
dissatisfaction with 	their 	grade. 	These 	drops were
automatically 	considered 	as 	strikes 	against 	de 	Tuncq with 	no
investigation. 	Conner 	testified 	as 	follows;
Q. 	You 	think 	when a 	student 	is confused
about 	grading 	policies 	that 	it's 	the
student's 	fault or 	the 	teacher's 	fault?
A. 	It could 	be mutual.
Q. 	Could 	it 	be 	just 	the 	student's 	problem?
A. 	It might be.
Q. 	And 	you 	never 	went 	to Mr. 	de Tuncq to
try 	to 	find 	out whether 	that 	confusion was
partly of his making, 	did you?
A. 	No.
Other 	evidence 	supports 	the 	conclusion 	that 	these
statistics 	are 	not 	reliable 	indicators 	of 	student 	complaints
about 	de 	Tuncq. 	Conner 	conceded 	that 	some 	courses 	are 	more
demanding 	than others, 	just 	as 	some 	teachers are more demanding
44

than others. 	Conner 	also conceded 	that no 	teachers 	taught 	the
same courses 	as 	de Tuncq. 	It 	is 	established 	in 	the 	record 	that
de Tuncq's 	courses, 	particularly personal philosophy 	and
psychology, 	are more 	"advanced" 	or 	"challenging" 	courses. 	Of
the 	seven 	students 	who 	dropped 	de Tuncq's 	courses 	during 	the
second 	semester 	in 1980, 	four were 	in philosophy, 	two 	in
psychology, 	and one 	(Hettrich due 	to 	truancies) 	in humanities.
No 	students 	dropped 	de 	Tuncq's 	American Government 	class 	during
this 	term. 	Further, 	as 	stated, 	each of 	these 	seven students
dropped 	the 	course 	at 	a 	time 	they 	were 	receiving 	a D or 	F.
The Files Kept on de Tuncq
The 	District 	kept 	two 	personnel 	files on 	de 	Tuncq.19 One
was 	kept 	in 	the District's 	personnel 	office 	and 	represents 	the
official personnel 	file. 	Cary McCarthy, 	Novato Federation of
19The 	District's 	official 	policy 	(policy 	4100) 	on
personnel 	files 	reads 	in 	relevant part 	as 	follows:
C. 	Anonymous material 	shall 	not 	be placed 	in
personnel 	files.
D. 	Information or 	statements 	of 	a 	derogatory
nature, 	except material obtained 	for 	the
purposes 	of hiring, 	shall 	not be entered or
filed 	unless 	and 	until 	the 	employee 	is 	given
notice 	and 	an opportunity 	to 	review and
comment 	thereon within 	three 	(3) 	days. 	An
employee 	shall 	have 	the right 	to enter, 	and
have 	attached 	to 	any 	such 	derogatory
statement, 	his own comments 	thereon. 	Such
review 	shall 	take 	place 	during 	normal 	school
hours, 	and 	the 	employee 	shall 	be released
from duty 	for 	this 	purpose 	without 	loss 	of
pay.
45

Teachers 	president, 	reviewed 	de Tuncq's 	official personnel
folder 	in June 	1980, 	and 	again 	in July 1980. 	There were 	no
parent complaints 	in 	this 	file 	covering 	the 	last 	three years,
and 	she 	found 	no 	otherwise 	derogatory 	information.
The 	second 	file, 	112 	pages 	in length, 	was personally 	kept
by Conner 	in 	his 	office. 	de 	Tuncq was 	never 	informed 	of 	the
existence 	of 	this 	file. 	Some 	of 	the 	information 	in Conner's
file 	can 	clearly be 	characterized 	as 	"derogatory."
The 	file Conner 	kept 	on de Tuncq contained 	a 	variety 	of
documents 	as 	described 	below. 	None of 	these 	were 	placed 	in
de Tuncq's 	official 	file. 	There were 	numerous Novato
Federation of Teachers 	newsletters, 	some 	where 	de 	Tuncq was
personally 	named. 	There 	were 	also documents 	relating 	to 	the
various 	issues 	de 	Tuncq had 	handled 	as 	an NFT 	representative,
e.g., 	class 	size, 	basic language skills, 	absence and 	tardy
reports, 	etc. 	These dated 	as 	far 	back 	as October 	1978. 	In
addition, 	a June 	6, 	1980 memo to the 	file by Conner was
included. 	This memo detailed 	the 	events 	at 	the 	first 	level
grievance 	meeting 	dealing 	with 	de 	Tuncq's 	transfer 	and
corroborates 	de 	Tuncq's 	testimony 	as 	to what 	happened 	at 	the
meeting.
The 	file 	also 	contained 	much 	documentation 	relating 	to 	the
incidents Conner 	characterized 	as 	complaints 	about 	de 	Tuncq.
The Tracy Morrill 	case 	was 	well 	documented, 	as 	were 	both 	Diana
Ziss 	incidents 	and 	the John Cheney matter. 	There was 	a June 	10,
46

1980 	letter 	critical of de Tuncq from Mr. 	and Mrs. 	Richard
Dykes, 	the parents of one of de Tuncq's 	students. 	The May 12,
1980 	memo 	from Conner 	to 	Superintendent 	Franklin 	listing
"incidents" involving Briggs, Wilhelm, Kirkwood, Hagan, Silva,
Barsch 	and Bradley was 	included. 	Numerous 	other 	references 	to
the Briggs complaint were 	contained 	in the 	file, 	including Mr.
Briggs 1 April 17, 	1980 	letter 	to Superintendent Franklin.
Evidence 	documenting 	the 	Hettrich 	and 	Hagan 	drops 	was 	included,
as was 	Slevin's written comment critical of de Tuncq. 	Mrs.
Wilhelm's April 	10, 	1980 	letter 	to de Tuncq was 	also 	in 	the
file.
The class 	size 	statistics 	referred 	to earlier 	were 	in 	the
file 	along 	with 	supporting 	documentation 	in 	the 	form of 	class
lists. 	The 	file 	also 	contained 	many 	documents20 about 	seven
students 	not 	otherwise 	mentioned 	above 	who 	either 	dropped 	or
withdrew 	from de 	Tuncq's 	class 	during 	the 	first 	quarter 	of 	the
1979-80 	school year.2 1
20These 	documents 	consist 	of 	"Course/Program Change
Petitions," 	which contain, 	among other 	things, 	the 	student's
reason 	for 	dropping 	the 	course 	and 	the parent's 	consent. 	These
may 	be 	referred 	to 	as drop 	slips.
2lAt 	some 	point during 	the 	spring 	semester 	of 	the 	1979-80
school 	year 	Conner 	asked 	all 	guidance 	counsellors 	to provide
him 	with 	the 	names 	of 	all 	students 	who dropped 	de Tuncq's
class. 	Thus, 	these 	"drops" 	found 	their way 	into de Tuncq's
file. 	He 	did 	not 	ask 	for 	similar 	information 	about other
teachers 	and 	therefore 	had 	no 	basis 	to compare 	the 	number 	of
drops.
47

Three 	of 	these drops 	occurred 	during 	the 	first 	two weeks 	of
the 	1979-80 	school year. 	Conner 	testified 	that 	drops 	early 	in
the 	year 	are 	most 	common because 	a 	student may decide 	he 	or 	she
doesn't want 	the 	class 	anymore 	or 	there 	may 	be 	a 	"personality
conflict" 	with 	the 	teacher. 	Under 	the practice at NHS, 	a
student 	need 	not 	provide 	a 	reason 	for 	dropping 	a 	course 	during
this 	part 	of 	the 	quarter. 	Four 	other 	students dropped
de 	Tuncq's 	course 	after 	the 	first 	two weeks 	of 	the 	1979-80
school 	year. 	Each of 	these 	students 	was doing 	poorly 	in 	the
course.
At 	no 	time 	did Conner 	attempt 	to 	discuss 	any 	of 	these
students' 	reasons 	for 	dropping with de Tuncq, 	nor 	was 	any
evidence 	presented 	to 	indicate 	that 	Conner 	or 	any 	other 	District
official 	attempted 	to 	investigate 	the 	reasons 	for 	these 	drops 	or
otherwise 	ascertain 	from 	those 	students 	the 	specific 	reasons 	for
their 	dropping 	de Tuncq's 	class.
The 	Collective 	Bargaining 	Agreement
Article V of 	the 	collective 	bargaining 	agreement 	covers
transfers.22 NFT 	negotiators 	testified 	that 	only 	two 	reasons
22Article 	V 	states 	in 	relevant 	part:
Involuntary 	Transfers.
a. 	Employees 	shall 	be 	advised 	of 	a proposed
involuntary 	transfer. 	Where 	possible,
the 	official 	notice 	of 	an 	involuntary
48

for 	permitting 	an 	involuntary 	transfer 	were 	"discussed" 	at 	the
table: 	reduction 	in 	the 	number 	of 	students 	and 	a change 	in
program. 	According 	to 	the NFT witnesses, 	other 	reasons were
"mentioned," 	but 	the 	focus was 	on only 	these 	two 	reasons.
Based 	on 	these discussions 	and 	the 	contract 	language, 	NFT argues
that 	an 	involuntary 	transfer 	can 	be made 	only 	if 	there 	is 	a
reduction 	in 	the 	number 	of 	students or 	a 	change 	in program.
District 	witnesses 	who were 	present 	at 	the 	negotiations
testified 	that 	there 	were many 	reasons 	discussed 	in 	regard 	to
the 	circumstances 	under 	which 	an 	employee 	could 	involuntarily
be 	transferred, 	but 	the discussions 	never 	narrowed 	to 	the 	point
where 	reasons 	for 	involuntary 	transfer 	were 	only 	those 	included
in Article V.A.4 	of 	the 	agreement. 	According 	to 	these
transfer 	shall 	be 	given 	to 	the 	employee 	by
June 	1.
b. 	The 	employee 	in 	an 	involuntary 	transfer 	may
request 	a meeting 	with 	the 	Superintendent 	or
designee.
c. 	When 	a new program 	is 	created 	in 	the
District, 	no one shall be 	involuntarily
transferred 	to 	such 	programs 	if 	there 	are
volunteers 	who meet 	the 	applicable
qualifications.
d. 	In 	the 	event 	a 	staff 	reduction 	is 	necessary
at a 	school 	site or 	due 	to a program change
in special services, 	the employee so
affected 	shall 	be 	given 	first 	consideration
in 	line 	with 	the 	criteria mentioned 	above.
e. 	All 	employees 	involuntarily 	transferred
shall 	have 	the 	right 	to 	apply 	for 	vacancies.
49

witnesses, 	the District 	retains 	the 	right 	to 	involuntarily
transfer 	an 	employee 	for 	a 	variety of 	educationally 	related
reasons.
Refusal 	to 	Provide 	Information
At 	the May 	30 meeting 	attended 	by de Tuncq, 	McCarthy,
Mobley 	and 	Franklin, 	de 	Tuncq asked 	for 	a list 	of names of 	the
teachers 	who would 	be 	transferred 	in 	the 	1980-81 	school year.
As 	stated, 	it 	is 	the Federation's position 	that 	teachers may be
involuntarily 	transferred 	under 	the 	contract 	only 	if 	there 	is 	a
reduction 	in 	staff or 	a program change 	for 	special 	services.
The 	list was 	requested 	in order 	to enable 	the 	Federation 	to
monitor 	the 	agreement 	and 	determine 	if 	the 	transfers 	were 	in
accordance 	with 	the 	terms 	of 	the 	contract.
The Federation was 	not given 	the 	list 	at 	that 	time. 	Mobley
testified 	that 	the 	information 	sought 	by 	the 	Federation 	was 	not
then 	available 	and 	he would 	provide 	it 	as 	soon 	as possible. 	At
a meeting on June 	5 	attended 	by de Tuncq, 	Kim Roether, 	a
grievance committee member, 	and Mobley, 	the 	list was produced
and 	given 	to 	the 	Federation. 	Mobley met 	shortly 	thereafter
with 	NFT 	representatives 	to 	discuss 	the 	reasons 	for 	the 	transfer
of 	those 	employees on 	the 	list.
DISCUSSION AND 	CONCLUSIONS 	OF 	LAW
The 	Reasons 	for 	de Tuncq's 	Transfer
Charging 	party argues 	that 	de 	Tuncq's 	transfer 	was 	in
retaliation 	for 	his protected 	activity, 	and 	the 	reasons 	offered
50

by 	the District 	for 	the 	transfer 	are 	pretextual 	in 	nature. 	The
District, 	on 	the other 	hand, 	asserts 	that de Tuncq's protected
activities 	had 	nothing 	to do with 	the 	transfer. 	The District's
brief 	asserts 	that 	"Mr. 	de Tuncq was 	transferred 	because 	of 	an
excessive 	number 	of 	parent 	and 	student 	complaints 	regarding 	his
grading 	and 	his manner 	of 	relating 	to 	students." 	An 	apparent
extension of 	this 	reason 	is 	the District's conclusion 	that 	these
complaints 	manifested 	themselves 	in 	a 	consistently 	low 	average
class 	size 	as 	a 	result of 	students 	dropping 	de Tuncq's 	courses.
An additional 	reason 	offered 	by Conner 	at 	the May 	12 meeting
and 	at 	the 	hearing was 	his 	opinion 	that 	de 	Tuncq 	"needed 	a
change."23
It 	is 	recognized 	that, 	in comparison with 	other 	teachers,
more 	"incidents" 	involving 	de Tuncq were 	brought 	to Conner's
attention. 	Likewise, 	it 	is 	recognized 	that de Tuncq's average
class 	size 	was 	usually 	the 	lowest 	in 	the 	social 	studies
department. 	However, 	these 	factors, 	standing alone, 	do not
necessarily prove 	that 	de Tuncq's 	conduct was 	improper 	or
unprofessional. 	It 	stands 	to reason 	that 	if 	the complaints
were 	unfounded, 	or 	if 	students dropped classes 	for 	reasons
unrelated 	to his performance, 	the District's 	reasons 	for 	the
23The 	District's 	brief does 	not 	directly 	argue 	this 	was 	a
reason 	for 	the 	transfer. 	Since 	Conner 	testified 	he 	thought
de Tuncq needed 	a change, 	and 	told him so on May 	12, 	this
reason will 	be 	addressed 	in 	this decision.
51

transfer 	may 	be 	pretextual, 	thus 	creating 	the 	possibility of an
unlawful motive. 	The 	same 	is 	true 	regarding 	the question of
whether 	de Tuncq had 	become 	stale. 	If 	the 	evidence 	shows 	that
he had 	not, 	this 	reason 	too may be 	found 	to be 	unmeritorious,
again giving 	rise 	to 	the possible 	inference 	of 	unlawful 	motive.
Therefore, 	all of the complaints 	and 	reasons, 	as well 	as 	the
manner 	in which 	the District carried 	out 	the 	transfer, 	must 	be
carefully 	scrutinized. 	After 	doing 	so, 	relevant PERB decisions
will 	be 	applied.
The 	record 	clearly 	shows 	that 	de 	Tuncq was 	far 	from 	stale.
Throughout 	his 	long 	tenure 	at Novato High 	School 	he 	consistently
demonstrated 	a high quality of work. 	He 	was 	instrumental 	in
reorganizing 	existing 	courses 	and 	he 	instituted 	new 	courses 	in
the 	social 	studies department. 	He 	sometimes 	taught more 	than
the 	required 	number 	of 	preparations. 	His 	long 	service 	as
chairperson 	of 	the department 	underscores 	the 	high 	regard 	in
which 	he 	was 	held 	by his 	colleagues 	and 	his 	principal.
Additionally, 	the 	social 	studies 	department 	prospered 	under
de Tuncq's chairmanship, 	as 	reflected 	by 	the 	evaluation and
accreditation 	team's 	praise 	of 	the 	department.
de Tuncq's high 	level 	of 	performance 	is 	also 	reflected 	in
Conner's written 	evaluations, 	the 	last 	one 	having 	been 	received
on March 	24, 	1980, 	only weeks before 	the 	transfer 	was 	announced.
These 	evaluations 	are 	without 	the 	slightest 	hint 	that 	de 	Tuncq
was 	anything 	but 	a model 	teacher. 	They 	show 	that Conner 	always
52

gave 	him 	the 	highest 	rating 	in 	all 	categories, 	and he 	almost
always 	included 	complimentary 	written 	comments 	about 	de 	Tuncq's
teaching. 	These 	written 	evaluations 	speak 	for 	themselves 	and
need 	not be detailed 	here. 	(See Findings of Fact, 	pp.42-45.)
However, 	one point 	is 	noteworthy as 	it 	relates 	to 	the question
of de 	Tuncq's 	staleness. 	Barry Conner 	testified 	that, 	in his
view, 	one 	indicator 	that 	de Tuncq needed 	a 	change was 	his 	desire
to 	teach 	only more 	advanced 	students 	and 	his 	impatience 	with
slower 	learners. 	Presumably 	this 	would 	adversely manifest
itself 	in de Tuncq's 	teaching. 	However, 	Conner's written
evaluation 	of 	de Tuncq 	for 	the 	1979-80 	school 	year 	indicates
that:
The wide 	variety of 	teaching methods 	and
evaluation of 	students 	gives 	students 	of 	all
intellectual 	abilities 	an opportunity 	to 	pass
Mr. 	de Tuncq's classes.
Conner 	also wrote 	in 	the March 	24 	evaluation 	that:
de 	Tuncq has 	effectively 	reached 	at 	least
85% of his students.
The 	glaring 	inconsistency 	between 	Conner's 	testimony 	and
this 	recent 	evaluation 	serves 	to 	undermine 	his 	credibility 	on
this 	point 	and 	casts 	serious doubt on 	"staleness" 	as 	a 	valid
reason 	for 	the 	transfer.
Furthermore, 	the hearing officer 	finds 	it 	inherently
improbable 	that de Tuncq grew stale between March 	24, 	1980, 	the
date of his 	last written 	evaluation, 	and 	early May, 	when Conner
first 	informed 	de Tuncq 	that 	he 	needed 	a 	change. 	The District
53

offered 	no 	evidence 	relating 	to 	this 	period 	which 	would 	tend 	to
explain 	this 	inherent 	improbability. 	To 	the 	contrary, 	Conner
could 	have 	issued 	de 	Tuncq 	another 	evaluation 	covering 	this 	time
frame 	to 	record 	any post-March 	24 	dissatisfaction with 	his 	work.
He 	failed 	to do 	so.
Based 	on 	the 	foregoing, 	the 	hearing officer 	concludes 	that
the District's 	first 	reason 	for 	transferring 	de 	Tuncq 	is 	totally
groundless. 	de 	Tuncq was 	not 	stale 	and 	consequently 	not 	in 	need
of a change. 	To 	the 	contrary, 	his 	evaluations 	show 	that he was
a 	teacher 	who 	built 	an 	excellent 	work 	record 	at 	NHS while 	Conner
was 	principal. 	This 	excellent 	work 	record may 	be 	considered 	as
a 	factor 	in weighing 	the 	validity of 	the 	District's 	reasons 	for
the 	transfer. 	The 	Huntington 	Hospital 	(1977) 	229 NLRB 	253 	[95
LRRM 1062];2 4 Marin Community College 	District 	(11/19/80)
PERB Decision No. 	145, p. 	17.
Another 	reason offered 	for 	the 	transfer 	was 	the 	high 	number
of 	parent 	and 	student complaints 	about 	de Tuncq. 	In 	support
thereof, 	Conner 	first 	testified 	as 	to 	three 	incidents 	which
occurred prior 	to his March 	24, 	1980 	written evaluation of
24comparable 	provisions 	of 	the 	federal Labor-Management
Relations Act 	(LMRA), 	29 U.S.C. 	151, et seq., may be used to
guide 	interpretation of 	EERA. 	Sweetwater 	Union High 	School
District 	(11/23/76) 	EERB Decision No. 	4. 	(Prior 	to July 	1,
1978, PERB was 	known 	as 	the Educational Employment 	Relations
Board, 	or EERB.) 	Also see Fire Fighters Union 	v. 	City of
Vallejo 	(1974) 	12 Cal.3d 	608.
54

de Tuncq. 	He mentioned 	Ziss, Cheney, 	and Morrill as 	examples
of 	incidents 	which 	figured 	in 	the 	transfer 	decision.25
The 	hearing 	officer 	finds 	unpersuasive 	the 	argument 	that
these 	pre-March 	24 	complaints 	form 	a valid 	basis 	for 	the
transfer. 	Conner 	evaluated 	de 	Tuncq 	for 	four 	consecutive 	school
years 	in 	"relations 	with 	students 	and 	parents," 	the 	same 	areas
where 	the 	so-called 	complaints 	are 	said 	to have 	occurred. 	In
each 	area 	de 	Tuncq consistently 	received 	the 	highest 	possible
rating. 	Although Conner 	was 	obviously 	aware 	of 	these 	pre-March
24 	so-called 	complaints, 	and 	even 	discussed 	them with 	de Tuncq,
he 	never 	considered 	them 	significant 	enough 	to 	record 	in
de Tuncq's written evaluations. 	To 	the contrary, 	in each 	area
de 	Tuncq 	received 	the 	highest 	rating 	possible.26 The 	only
reasonable 	conclusion one 	can 	draw 	from 	this 	evidence 	is 	that
these 	incidents were, 	at 	that 	time, 	considered 	by Conner 	to be
insignificant. 	They 	were 	revived 	at 	a 	later 	date 	to be 	used 	as
ammunition 	to 	transfer 	de 	Tuncq.
25According 	to Conner, 	these 	complaints 	formed 	only 	a
background 	for 	his decision 	to 	transfer 	de Tuncq. 	It was
actually 	the 	large 	number 	of 	complaints 	received 	after 	March 	24
which 	prompted 	the decision. 	Nevertheless, 	the pre-March 	24
complaints 	will 	be discussed 	because 	they 	shed 	light 	on 	the
pretextual 	nature 	of 	the District's 	reasons 	for 	the 	transfer.
26For 	example, 	the 	Ziss 	and Morrill 	incidents 	occurred
during 	a 	period 	when Conner 	evaluated 	de 	Tuncq 	as 	"effective"
in dealing with 	students 	and 	parents. 	The 	Cheney 	incident
similarly 	occurred 	during 	a 	period 	when Conner 	rated 	de 	Tuncq
"effective" 	in cooperation with 	staff. 	There 	was 	no evidence
that Cheney 	or 	his 	parents 	complained 	about 	de 	Tuncq.
55

This 	raises 	the 	question of whether 	the 	nature or 	number 	of
the 	so-called 	complaints 	received 	after 	March 	24, 	1980
constitute 	valid 	reasons 	for 	de Tuncq's 	transfer 	or, 	on 	the
other 	hand, 	are 	they 	simply 	a pretext 	for 	retaliating 	against
him 	for 	his 	protected 	activity. 	Before 	examining 	the 	specifics
of 	these 	complaints, 	however, 	it 	is helpful 	to cast 	them against
the 	background 	evidence.
Initially, 	it 	is 	significant 	that 	the post-March 	24
complaints 	were 	diminished 	since 	they 	were 	substantially 	similar
to those made before March 	24. 	Thus, 	Conner's 	standards 	for
similarly 	situated 	complaints 	were 	changed 	without 	explanation.
The majority of 	the 	post-March 	24 	complaints 	stemmed 	not
only 	from 	allegedly 	poor 	relationships 	with 	parents 	or 	students
but 	also 	from disagreements 	over 	certain 	aspects 	of 	de 	Tuncq's
teaching. 	These 	complaints may 	be 	broken down 	into 	three
general areas.
Some 	centered 	on 	disagreement 	with 	de 	Tuncq's 	grading
criteria, 	especially 	with 	reference 	to his 	use 	of 	punctuality
and 	attendance 	as 	factors 	in grading. 	These 	complaints
eventually manifested 	themselves 	in 	parent 	and 	student
dissatisfaction with 	actual letter 	grades. 	However, 	the
evidence 	shows 	that a 	teacher 	has 	the option of 	using
attendance 	as 	a 	factor 	in grading. 	Barry Conner 	was 	aware 	of
the 	grading 	procedures 	used 	by 	de 	Tuncq 	and 	never 	objected 	or
counseled 	de 	Tuncq 	to 	change 	them 	in 	any 	way. 	Conner 	testified
56

at 	length 	during 	the 	hearing 	and 	never 	directly 	condemned
de Tuncq's grading policies. 	Indeed, 	de Tuncq's most 	recent
evaluation 	reveals 	that Conner 	was 	satisfied 	with 	the 	way
de 	Tuncq 	evaluated 	students. 	The 	District 	cannot 	now 	argue
that a parent or 	student complaint, 	which has 	at 	its core
approved 	grading 	criteria, 	constitutes 	a valid 	basis 	upon which
a 	teacher 	is 	transferred. 	If 	such a complaint 	is valid, 	Conner
is 	as much 	to blame as 	de Tuncq. 	Taking 	adverse 	action 	against
an 	employee 	for 	conduct 	which 	has 	been 	accepted 	in 	the 	past may
be viewed 	as 	evidence 	of 	an 	unlawful motive. 	V & V Castings
(1977) 	231 NLRB 912 	[96 LRRM 1121]. 	enf. 	(CA 9 1978) 	587 F.2d
1005 	[100 	LRRM 	2303].
In addition, 	Conner 	testified 	that 	disputes 	over 	grading
policy may be 	the 	fault 	of 	the 	student or 	the 	teacher, 	or 	it
could 	be 	just 	the 	student's 	problem. 	Each 	complaint 	involved 	a
student who was 	either 	failing or 	close 	to 	it. 	Yet he 	failed 	to
fully 	investigate 	the 	majority of 	these 	claims 	or 	discuss 	them
with 	de Tuncq 	to determine 	their 	validity. 	He 	accepted 	them at
face 	value, 	even 	though 	he 	usually discussed 	student/parent
complaints 	with 	teachers 	if 	they 	were 	"at 	all 	serious."27 A
27conner 	had 	some 	discussion 	with 	de 	Tuncq 	about 	the
grade-oriented 	complaints 	of 	only Briggs 	and Wilhelm, 	but 	the
record 	does 	not 	show 	that 	there 	was 	any 	discussion 	about 	the
other 	complaints. 	Bradley did 	not 	contest 	her 	third 	quarter
grade, 	and Mrs. 	Bradley protested 	her 	fourth 	quarter 	grade 	in
September, 	approximately 	five months 	after 	Conner 	had 	decided
to 	transfer 	de Tuncq. 	Conner 	never 	discussed 	Slevin's
57

complaint 	about a grade, 	according 	to Conner, 	is usually
disposed 	of 	by 	asking 	the 	teacher 	to 	explain 	how he 	arrived 	at
the 	grade. 	The 	fact 	that Conner 	did 	not do so 	indicates 	that
he was 	less 	concerned 	about 	the 	substance 	of 	these 	complaints
and 	their 	ultimate 	resolution 	than he 	was 	about 	using 	them as 	a
basis 	to 	transfer 	de Tuncq. 	As 	such, 	his conduct may be 	viewed
as evidence of an unlawful motive. 	FAR-MAR Co., 	(1977) 	231
NLRB 814 	[96 LRRM 1133].
Other 	parent 	and 	student 	complaints 	focused 	on 	de 	Tuncq's
alleged 	failure or 	refusal 	to provide 	adequate 	instructions 	or
explanations 	about course 	requirements. 	The 	evidence 	shows,
however, 	that 	de Tuncq provided 	detailed 	written guidelines 	in
this 	area 	at 	the outset of each 	term. 	And Conner, 	in de Tuncq's
March 	24 	evaluation, 	praised 	the 	"clarity with 	which 	[de Tuncq]
gives 	assignments." 	Once again, 	the glaring 	inconsistency
between 	the March 	24 	evaluation 	and Conner's 	present 	assertion
dissatisfaction 	regarding 	her 	grade 	with 	de Tuncq. 	The 	matter
was 	first 	brought 	to de Tuncq's 	attention at 	the 	hearing.
Hagan's 	grade-related 	complaint 	was 	not 	fully 	explored 	by
Conner. 	He 	wrote 	in a memo of May 	12 	to Mobley 	that de 	Tuncq
and 	Hagan 	had 	a 	"clash 	of 	personalities," 	but 	indicated 	that
they 	had 	made 	some 	arrangements 	about 	Hagan's 	work 	for 	the
remainder 	of 	the 	year. 	Conner 	did 	not 	become 	aware 	of 	the
Hettrich 	matter 	until 	approximately May 	22, 	after 	he 	had 	made
the 	transfer 	decision. 	In 	any 	event, 	Conner 	never 	raised 	the
matter 	with 	de Tuncq 	to permit 	him 	to 	explain 	that 	Hettrich's
grade was 	as 	a result of absences due 	to 	illness. 	In sum, 	only
two of 	the 	six 	post-March 	24 	grade-related 	complaints 	were
mentioned 	to de Tuncq, 	thus 	indicating 	that, 	according 	to
Conner's own 	testimony, 	the others 	were 	not 	"serious."
58

that 	de 	Tuncq's 	assignments 	were 	unclear 	casts 	serious 	doubt 	on
the 	legitimacy 	of 	this 	complaint.
The 	last 	general 	category 	of 	complaints 	involved 	comments
made 	by de Tuncq 	to 	students 	and/or 	parents. 	As more 	fully
explained 	below, 	the 	evidence does 	not 	show 	that 	de Tuncq's
comments 	were 	offensive 	or 	otherwise 	improper. 	They 	were
generally 	exaggerated 	by 	Conner 	without 	investigation 	or
discussion with 	de Tuncq 	and 	then 	used 	as 	a 	basis 	for 	the
transfer.
It 	is 	against 	this 	background 	that 	merits 	of 	the parent/
student 	so-called 	complaints must 	be 	examined.
Mr. 	Briggs was 	dissatisfied 	with 	his 	son's 	letter 	grade 	and
protested 	the 	grading 	criteria 	used 	by 	de 	Tuncq 	especially 	the
use 	of 	attendance 	and 	punctuality as 	factors 	in grading.
de Tuncq explained 	that Briggs 	lost 	points 	due 	to 	his 	tardies 	as
a 	result of 	swimming 	practice. 	As 	stated, 	this was 	an accepted
grading 	practice 	at NHS.
Mr. 	Briggs did 	not 	expressly 	complain 	about de 	Tuncq's
relationship with 	parents. 	And 	evidence 	relating 	to de 	Tuncq's
meeting 	with Mr. 	Briggs 	reveals 	that 	comments 	outlining Briggs 1
alternatives 	as 	to Mark's 	grade 	cannot 	reasonably 	be 	construed
as 	offensive or 	unprofessional. 	While de Tuncq apparently
offered 	to change Mark's 	grade, 	he 	later 	consulted 	with Conner
and 	ultimately 	told Briggs 	that 	the 	grade 	could 	not 	be 	changed.
While 	this 	incident may 	reflect poor 	judgment 	by de Tuncq, 	it
59

does 	not 	translate 	into 	the 	broader 	conclusion 	that 	de 	Tuncq
had poor 	relationships with parents. 	More accurately, 	it
represents 	only a disagreement 	about 	a 	grade.
The 	gist 	of 	Rebecca Lee 	Bradley's 	testimony 	is 	that 	she 	was
dissatisfied 	with 	her 	failing 	grade 	in humanities 	at 	the 	end 	of
the 	third 	quarter. 	Though 	she 	complained 	about her 	grade, 	she
admitted 	not 	fulfilling course 	requirements. 	Also, 	de Tuncq
was 	not 	impressed 	with 	her 	selection 	of 	the 	"baby 	harp 	seals"
topic, 	nor 	was he 	impressed 	with 	the 	quality of her 	work 	on 	the
project. 	Thus, 	in view of 	this 	student's admission 	that 	she
did 	not 	fulfill 	course 	requirements 	and 	de Tuncq's convincing
testimony 	regarding 	the 	low 	quality of 	her 	baby harp 	seals
project, 	it 	is concluded 	that Bradley's 	low grade cannot 	be
interpreted 	as 	reflecting 	poorly on de Tuncq. 	Further, 	although
Bradley 	described 	de 	Tuncq's 	assignment 	as 	"confusing," 	the
record 	evidence, 	including Conner's 	evaluation of de Tuncq,
shows 	that 	assignments 	were 	given with 	"clarity."
In addition, 	the 	record 	does 	not 	show 	that de Tuncq's
communication with 	Rebecca Bradley's 	mother 	was 	in 	any way
improper 	or 	unprofessional. 	Mrs. 	Bradley contacted 	de Tuncq
about 	Rebecca's 	grade. 	Showing 	a 	willingness 	to meet with 	this
parent, 	de Tuncq spoke with Mrs. 	Bradley on the 	telephone 	twice,
and 	he met 	with her 	in person once. 	There was 	no 	indication
that Mrs. 	Bradley 	had 	any 	complaints 	about de 	Tuncq based 	on 	the
way he 	conducted 	himself 	during 	these 	discussions. 	Furthermore,
60

Mrs. 	Bradley didn't 	file her 	complaint 	about 	Rebecca's 	final
grade, 	which was 	given at 	the 	end 	of 	the 	1979-80 	school year,
until 	the 	following 	September, 	long 	after 	Barry Conner 	had made
his 	decision 	to 	transfer 	de Tuncq. 	The 	evidence 	simply does 	not
show 	that de Tuncq dealt with Mrs. 	Bradley 	in an 	improper 	way.
Rebecca Bradley's 	testimony, 	likewise, 	does 	not 	show that
de 	Tuncq's 	classroom 	relationship 	with 	students 	was 	lacking.28
To 	the 	contrary, 	she 	testified 	only 	that 	de 	Tuncq 	"made 	little
comments" 	but 	"nothing 	really serious." 	Indeed, 	she described
de Tuncq's 	comments 	as mere 	disagreement 	with 	student 	answers:
...purposely doing 	that 	so 	that 	people 	in the
class 	would 	look 	a 	little 	harder 	at 	the
situation, 	you know, 	answer 	better 	questions.
This 	testimony does 	not 	indicate 	that 	de Tuncq had 	poor
relations with 	students. 	Rather, 	it 	indicates 	that he attempted
to 	get 	maximum 	participation 	out 	of 	students 	during 	classroom
discussions.
While 	de 	Tuncq's 	comment 	about 	girls 	having 	power 	over 	boys
may have offended Bradley, 	it does 	not 	rise 	to 	the level of 	a
serious 	complaint. 	de Tuncq was 	simply 	trying 	to 	break 	up 	a
group of 	students 	before 	starting class. 	This 	is 	well within
28Great 	weight 	is 	given 	to 	Rebecca Bradley's 	testimony
about 	de Tuncq's 	classroom 	relationship with 	students. 	Although
many 	students 	testified 	at 	the 	hearing, 	Bradley 	was 	the only
one 	who 	testified 	at 	any length on 	this point, 	even offering
specific 	examples 	of what 	the District 	considers 	to 	be 	improper
comments 	by de 	Tuncq.
61

his 	prerogative 	as a 	teacher. 	The District's 	position 	that 	it
actually 	believed 	this 	comment 	to 	be 	improper 	is 	inherently
unbelievable 	and 	therefore 	not 	persuasive.
Linda Wilhelm 	received 	an 	F 	in personal 	philosophy 	because
of 	her 	high 	number 	of 	tardies 	and 	her 	failure 	to 	submit 	the
written 	evidential 	file. 	She 	said 	she 	didn't 	understand 	the
requirements 	of 	the course 	or 	what was 	required 	in 	the 	form of
the evidential 	file. 	But written 	course 	requirements 	in
philosophy, 	like 	humanities, 	were distributed 	along with 	the
explanation of 	the evidential 	file. 	In order 	to clarify 	these
points, 	de Tuncq counseled 	Linda 	that 	she would 	have 	to begin
meeting 	course 	requirements. 	This 	was 	not 	enough 	and 	prompted
a letter 	from Mrs. 	Wilhelm. .
Mrs. 	Wilhelm asked 	de Tuncq what Linda 	needed 	to do 	to
improve 	in 	the 	course. 	She 	also asked 	for 	written progress
reports 	on 	a 	weekly 	basis. 	de 	Tuncq promptly 	responded 	in
writing 	that 	Linda was 	not meeting 	course 	requirements 	and
informed Mrs. 	Wilhelm what 	those 	requirements were. 	He met with
Mrs. 	Wilhelm and 	told 	her 	that he 	could 	not 	provide 	the 	weekly
reports 	she 	requested 	because, 	as 	is 	clear 	from 	the 	record, 	the
personal 	philosophy 	course 	did 	not 	lend 	itself 	to 	that 	kind 	of
reporting.
Another 	complaint 	from Mrs. 	Wilhelm 	involved 	her 	allegations
that 	de 	Tuncq degraded 	Linda 	and 	made 	her 	grovel 	during 	the
course 	of 	an 	earlier 	meeting 	about her 	progress 	in 	the 	course.
62

However, 	neither 	de Tuncq nor 	Linda corroborated Mrs. 	Wilhelm's
version of 	this 	meeting. 	A 	fair 	reading 	of 	their 	combined
testimony 	shows 	that 	de 	Tuncq 	told 	Linda 	only 	that 	he 	had 	seen
no 	improvement 	in her 	work. 	Since Mrs. 	Wilhelm was 	not 	at 	the
meeting, 	her 	characterization of de Tuncq's 	comments 	during
that meeting, 	when 	compared 	with 	the 	testimony 	of Linda 	and
de Tuncq, 	are 	unpersuasive on 	the point of whether 	de Tuncq
acted 	improperly.
Mrs. 	Wilhelm was 	also 	angered 	by de 	Tuncq's 	statement 	that
Linda 	could 	pass 	the 	course. 	She 	claimed 	this 	statement 	was
inconsistent 	with 	de Tuncq's 	earlier 	comment 	to Linda 	on 	the
subject. 	But 	the 	record 	shows 	only 	that 	de Tuncq told 	Linda 	he
saw no 	improvement. 	These 	two 	comments 	are 	not 	necessarily
inconsistent. 	While Linda may 	not 	have 	improved 	as 	of 	her
conversation with de Tuncq, 	it 	is 	entirely possible 	that 	she
could 	have 	eventually 	passed 	the 	course 	on 	the 	strength 	of 	her
work 	later 	in 	the 	term.
Mrs. 	Wilhelm eventually met with Conner 	to discuss 	this
matter. 	After 	the meeting 	Linda dropped 	the 	course 	and
received 	no mark. 	Conner 	subsequently met 	with 	de 	Tuncq 	and
told 	him Mrs. 	Wilhelm 	felt his 	answers 	had 	been 	short 	and
therefore 	rude. 	de Tuncq, 	however, 	described 	the meeting 	with
Wilhelm 	as 	"quite 	short 	and 	very 	innocuous." 	de Tuncq's
testimony about his meeting 	with Mrs, 	Wilhelm 	is 	credited. 	He
was present 	at 	the meeting 	and Conner 	was 	not. 	Mrs. 	Wilhelm
63

testified 	at 	the 	hearing 	but 	did 	not 	expressly describe 	de 	Tuncq
as 	rude 	during 	the meeting.29 Thus, 	while 	the meeting may
have 	been short, 	there 	is 	no valid 	basis 	to conclude 	that
de 	Tuncq was 	rude 	to Mrs. 	Wilhelm 	in discussing Linda's 	standing
in class.
Maureen 	Slevin's 	complaints 	likewise 	stemmed 	from
dissatisfaction 	with 	her 	grade 	and 	with 	the 	way 	she 	claims
de Tuncq assigned 	points 	for 	oral participation 	in class. 	These
complaints, 	like the others, 	are groundless. 	With 	regard 	to her
grade, 	it 	is 	undisputed 	that 	she 	received only 	65 	out of 	100 	in
oral 	participation 	and 	she 	received 	no points 	for 	attendance.
Slevin did not hand 	in an evidential 	file, 	and, 	according 	to
de Tuncq who observed 	her 	throughout, 	she had 	no 	interest 	in 	the
class. 	While Slevin may have 	been 	unhappy 	with 	her 	grade, 	this
can 	hardly 	be 	characterized 	as 	a 	complaint which 	legitimately
supports 	de 	Tuncq's 	transfer.
Furthermore, 	with 	respect 	to 	the 	second 	aspect of 	Slevin's
complaint, 	de Tuncq's 	explanation of 	his 	procedure 	for 	assigning
points 	based 	on oral participation 	in class 	indicates 	that
Slevin's 	description of 	this 	process 	is 	inaccurate. 	de 	Tuncq
convincingly 	testified 	that 	his 	assignment 	of 	points 	for
29Her 	chief 	complaints 	concerned 	de 	Tuncq's 	behavior 	at
an 	earlier 	meeting 	with 	Linda 	and 	what 	she 	believed 	to be
inconsistent 	statements 	by 	de 	Tuncq 	about Linda's 	future 	in 	the
course. 	She did 	not 	testify 	that de Tuncq's 	short 	answers 	were
rude.
64

oral 	participation 	is 	not 	based 	on 	random assessments, 	as 	Slevin
charges, 	but rather 	on approximately 	45 	hours of classroom
observation. 	Each 	student 	is 	observed 	and 	the 	quality of 	the
student's comments 	taken 	into 	consideration. 	Points 	for 	oral
participation 	clearly 	are 	not 	assigned 	in an 	arbitrary manner.
Slevin's case 	is 	significant 	for 	the way 	it was 	handled 	by
Ross 	and Conner. 	Slevin was 	a 	student who 	sought 	to drop a
course 	because 	of dissatisfaction with 	her 	grade 	and 	the 	way
points 	for 	oral 	participation were 	assigned. 	She 	went 	to Ross
who, 	in 	turn, 	reported 	to Conner. 	Slevin dropped 	the course.
After 	Ross 	took 	her 	on as 	an 	assistant, 	he 	asked 	her 	to 	record
her 	complaints 	in writing, 	which 	she did. 	This 	document was
transmitted 	to Conner 	who placed 	it 	in a 	secret 	file 	and
eventually used 	it as 	a partial 	basis 	for 	the 	transfer. 	Not
once 	during 	this 	entire 	process 	did 	Ross 	or 	Conner 	suggest 	to
de 	Tuncq 	that 	this was 	occurring, 	nor 	did either 	of 	them
attempt 	to discuss 	the 	complaint 	raised 	by Slevin. 	The 	first
time 	de 	Tuncq 	even 	saw Slevin or 	heard 	of her 	complaints 	after
she 	dropped 	his class was at 	the 	hearing. 	If either 	Ross or
Conner 	were 	genuinely 	interested 	in 	addressing 	complaints 	of
the 	type 	raised by Slevin, 	they would 	have 	taken 	steps 	to, 	at
minimum, 	hear 	de Tuncq's side of 	the 	issue. 	The 	fact 	that 	they
did 	not 	casts 	serious 	doubt on 	the District's 	assertion 	that
de Tuncq's 	transfer 	was 	in part 	due 	to 	student 	complaints.
FAR-MAR Co., 	supra; 	Tama Meat Packing Corp., 	(1977) 	230 NLRB
65

116 	[96 LRRM 1148], mod. 	(CA 8 1978) 	575 F.2d 661 	[98 LRRM
2339] .
Like 	the others, 	Deborah Hagan was 	dissatisfied 	with 	her
letter 	grade 	as well 	as 	with de Tuncq's 	response when she 	asked
about 	the 	grade. 	Although 	she 	testified 	that 	de 	Tuncq once
walked 	away 	from her 	when 	she 	asked 	about 	the 	grade, 	she 	also
testified 	that 	the 	next 	day 	de 	Tuncq 	showed 	her 	grade-related
charts 	and 	explained 	that 	she 	wasn't 	fulfilling 	course
requirements. 	This 	did 	not 	satisfy Hagan who 	said 	she 	was
aware 	of 	the 	requirements 	and 	thought 	she 	had 	satisfied 	them.
Thus, 	this part of Hagan's complaint boils down 	to a
disagreement 	between 	a 	student 	and 	a 	teacher 	about 	a 	grade 	and
Hagan's 	apparent 	impression 	that 	de 	Tuncq did 	not 	show 	her
enough 	attention when explaining 	the 	grade. 	While 	Hagan may
have 	understandably 	formed 	the 	impression 	that 	she 	should 	have
been given more of an explanation, 	it 	is 	recognized 	that a
teacher 	who 	has 	well 	in excess 	of 	one 	hundred 	students 	may 	not
be able, 	during 	the course of a school year, 	to afford all
students 	all 	the 	time 	requested 	at 	the precise 	time 	the 	student
chooses. 	The 	pressure 	of 	teaching 	and/or 	other 	commitments
within 	the 	school 	community may 	reasonably prevent 	this. 	What
is 	important here 	is 	that 	de Tuncq discussed Hagan's 	grade 	with
her 	the 	following day, 	and 	he met with Mrs. 	Hagan 	later 	for 	the
same purpose. 	With 	respect 	to Hagan, 	de Tuncq clearly did 	not
shirk 	his 	responsibilities 	as 	a 	teacher.
66

While Hagan's 	conflict 	with 	de Tuncq was 	based 	in part 	on
her 	letter 	grade, 	her 	chief 	complaint 	grew out 	of meetings 	with
de Tuncq and Mrs. 	Hagan. 	Based on 	the 	record 	evidence, 	it 	is
concluded 	that 	the 	incident 	regarding 	de 	Tuncq's 	alleged
refusal 	to meet with Mrs. 	Hagan 	amounts 	to nothing more 	than 	a
misunderstanding 	between 	de 	Tuncq 	and 	Deborah 	Hagan 	as 	to 	the
time 	of 	the 	meeting. 	de Tuncq could 	not meet 	with Mrs. 	Hagan
because 	he 	had 	a meeting 	already 	scheduled 	with 	another 	parent.
But he met with 	them the 	next day, 	and, 	according 	to Barry
Conner's 	memo 	to 	Superintendent 	Franklin 	regarding 	that 	meeting,
"received 	them politely." 	de 	Tuncq 	even 	offered 	to 	let 	Deborah
submit 	a 	written paper 	to 	satisfy 	course 	requirements.
Hagan 	next 	complained 	about 	de Tuncq's 	comment 	that 	she 	was
not 	college material. 	This offended her. 	But 	the hearing
officer 	credit de Tuncq's version 	that 	he 	simply 	told Mrs. 	Hagan
that, 	in his view, 	Deborah was not mature enough 	to do work 	at
the 	highest 	University 	level 	and 	he 	recommended 	she 	enter 	a 	good
junior 	college 	before 	trying 	a 	school 	like 	the University of
California at Berkeley. 	This 	comment does 	not 	strike 	the
hearing 	officer 	as 	being 	offensive 	or 	unprofessional 	in 	any
way. 	When 	asked, 	de Tuncq simply gave 	his 	professional 	opinion
about 	Deborah's 	future 	in 	college. 	A 	teacher's 	professional
judgment 	about 	a 	student's 	academic 	ability cannot 	reasonably
be 	construed 	as 	offensive 	or 	otherwise 	improper.
Robin 	Hettrich's 	so-called 	complaint 	was 	also 	based 	on 	a
67

low grade. 	Her 	grade was 	due primarily 	to many absences 	as 	a
result 	of 	an 	illness 	during 	the 	third 	quarter. 	de Tuncq 	issued
a progress 	report 	saying 	she would 	not 	pass 	the 	course 	if 	she
did 	the 	same 	amount 	of 	work 	during 	the 	fourth 	quarter 	as 	she 	did
during 	the 	third 	quarter. 	This 	obviously discouraged 	Hettrich,
for 	she 	began 	to 	incur 	many more 	absences. 	After 	nine 	truancies
her 	counselor 	suggested 	that 	she 	discuss 	the 	situation with
de Tuncq. 	She did, 	but 	they couldn't work 	things out.
Hettrich 	dropped 	the 	course 	on May 	23.30 	In 	view of 	these
circumstances 	Hettrich's 	decision 	to drop 	the 	course 	cannot
reasonably be 	construed 	as 	a mark 	against 	de Tuncq. 	She 	simply
did 	not 	attend 	enough 	classes 	to pass 	the 	course.
The May 	12 Memo
In his 	memorandum of May 	12 	to Superintendent 	Franklin Barry
Conner 	cited 	other 	"incidents" 	regarding 	de 	Tuncq's 	relationship
with 	students. 	The 	examples 	offered 	by Conner 	are 	similar 	in
nature to those already discussed, 	but, 	like the others, 	these
incidents 	do not 	rise 	to 	the 	level 	of 	"complaints." 	For
example, 	Barry Conner 	told 	Superintendent 	Franklin 	that Susan
Kirkwood, 	a 	student 	who was 	apparently doing 	poorly, 	complained
30The 	entire 	Hettrich 	matter 	did 	not 	come 	to 	Conner's
attention 	until May 	22, 	after 	he 	told 	de Tuncq he was 	relieving
him of 	the 	department 	chairmanship 	and 	"giving 	strong
consideration 	to giving 	him 	an 	involuntary 	transfer." 	Thus, 	it
is 	questionable whether 	this 	so-called 	complaint was 	a part 	of
Conner's 	ultimate 	decision 	to 	transfer.
68

about 	the 	structure 	of 	de Tuncq's 	course 	and 	the 	lack 	of
information 	about 	course 	requirements. 	de 	Tuncq's 	unrebutted
testimony 	established 	that 	Kirkwood 	had 	turned 	in 	no 	written
work, 	had 	low attendance, 	and 	only average oral participation.
Moreover, 	the 	record 	indicates 	that 	de Tuncq 	informed 	each 	of
his 	classes 	about 	course 	requirements 	in writing 	at 	the outset
of 	the 	term. 	If 	Kirkwood 	did 	not 	understand 	these 	requirements
she 	could 	have 	brought 	this 	to de 	Tuncq's 	attention 	and
attempted 	to work 	the matter 	out, 	or 	Conner 	could 	have 	initiated
such 	a discussion. 	In 	the 	absence 	of 	any 	such 	attempts 	her
so-called complaint can't be 	taken 	seriously. 	Also, 	even 	if
de Tuncq 	told Mrs. 	Kirkwood 	that 	his 	class 	was 	for 	"brighter
students" 	this 	cannot 	be 	construed 	as 	improper 	for 	the
evidence 	shows 	that his classes were, 	in fact, 	more 	"advanced"
or 	"challenging."
Conner's 	reference 	in 	the 	memo 	to Catherine Barsch 	can 	best
be described 	as a non-complaint. 	In essence, 	Conner 	told
Franklin 	that Barsch 	was 	"near 	failing" 	and 	de 	Tuncq had
estimated 	in 	her 	progress 	report 	that 	she would 	not do 	enough
work 	to earn 	credit 	in 	the 	course. 	These 	facts 	standing 	alone
simply do 	not 	constitute 	a 	so-called 	"incident." 	The Barsch
matter 	represents 	nothing 	more 	than 	a 	teacher's 	assessment 	of 	a
student.
The memo 	further 	states 	that 	another 	student, 	Sharon Silva,
dropped 	the 	class 	essentially 	because 	de 	Tuncq 	ignored 	her 	when
69
\

she 	tried 	to speak. 	This comment, 	too, 	without more, 	does not
amount 	to 	a valid 	complaint.31 It 	may well 	be 	that 	de Tuncq
showed 	Silva 	less 	attention during 	his 	class 	than he 	showed
other 	students, 	and 	this 	formed 	the 	basis 	for 	her 	complaint.
However, 	a 	teacher 	can hardly be 	expected 	to give 	each 	student
an 	equal 	amount 	of attention. 	Since 	there 	was 	no evidence
presented 	to 	show 	that de Tuncq went beyond 	this 	and, 	in 	fact,
"ignored" 	Silva, 	this 	complaint cannot 	be 	taken 	seriously.
The 	Barsch 	and Silva 	matters 	simply 	represent 	two 	students
dropping 	courses 	at 	a 	time 	they were 	doing 	poorly. 	Under
de Tuncq's drop policy, 	which Conner 	was 	aware of 	and 	at 	least
tacitly endorsed, 	this 	is not unusual. 	Moreover, 	other 	than
the Conner 	memo 	there 	is 	no 	evidence 	that 	these 	students 	or
their 	parents 	complained 	about de Tuncq. 	Once 	again, 	if 	Conner
was 	interested 	in 	resolving 	these 	matters 	he 	surely would 	have
initiated 	the most minimal discussion 	with 	de Tuncq. 	He 	never
discussed 	Barsch, 	Silva or 	Kirkwood 	with de Tuncq.
Low Class 	Size
The 	last 	reason 	offered 	by 	the 	District 	was 	de Tuncq's
consistently low class size. 	This reason, 	like 	the others, 	is
3lThis 	allegation 	must 	be 	viewed 	with 	suspicion 	when
considered 	in 	light 	of 	Conner's 	classroom observations 	of
de 	Tuncq which 	were 	attached 	to 	the March 	24 	evaluation.
Conner 	wrote 	that 	the 	classroom discussion was 	conducted 	in 	an
"open 	atmosphere," 	and 	that 	"measurable 	learning 	could 	be 	seen
by class 	interaction 	with 	the 	instructor 	and 	with 	the 	students."
1 1
70

found 	to be 	without merit. 	Low class 	size 	does 	not
automatically 	establish 	a 	shortcoming 	on 	the 	part 	of 	the
teacher, 	just 	as 	consistently high 	class 	size would 	not
necessarily mean 	that 	a 	teacher 	is 	excellent. 	While 	low class
size 	may be 	an 	indicator 	that 	a 	teacher 	does 	not 	relate 	well 	to
students or 	parents, 	thus generating 	an excess of drops or
complaints, 	there must be 	some 	other 	objective 	evidence 	to
support 	this 	claim. 	In 	this 	case 	the District has provided 	no
such 	evidence.
The 	District's 	statistics purporting 	to 	show 	that 	de 	Tuncq
consistently 	had 	low class 	size 	are 	not 	probative 	evidence 	on
the 	question 	of 	de 	Tuncq's 	relationship with 	students 	and
parents 	or 	of 	his 	performance 	as 	a 	teacher.32 de Tuncq 	taught
courses 	that 	he 	described 	as 	"advanced" 	and 	Ralph Del 	Sarto 	a
guidance 	counsellor, 	described 	as 	"challenging." 	No other
teacher 	taught 	these courses. 	And, 	as 	already determined
examples 	of 	complaints 	offered 	by 	the District 	have 	been 	found,
in large part, 	to be 	totally without merit, 	thus precluding 	them
from being 	used 	to support 	these 	statistics.
In 	addition, 	some 	student drops 	apparently 	relied 	on 	by
Conner 	in 	reaching 	the 	decision 	to 	transfer 	do 	not 	constitute
persuasive 	evidence 	that 	students 	dropped 	de Tuncq's course 	in
32see Findings of Fact, 	pp.42-45.
71

large 	numbers 	because of 	any 	shortcoming 	on his 	part. 	For
example, 	Conner's 	secret 	file on de Tuncq shows 	that 	seven
students 	dropped 	de Tuncq's 	course 	in 	the 	early part 	of 	the
1979-80 	school year. 	However, 	on closer 	examination, 	it 	is
revealed 	that 	at 	least 	three 	of 	these dropped 	the 	course 	during
the 	first 	two weeks of 	the 	quarter. 	Under 	established 	practice
at NHS, 	students may do 	so without offering 	a 	reason 	for 	the
drop. 	This permits 	students 	to change 	schedules 	if 	after 	a 	few
classes 	they decide 	on 	another 	course 	and 	cannot 	reasonably 	be
viewed 	as 	reflecting 	poorly 	on 	de 	Tuncq.
It 	is 	significant 	that Conner 	made 	no 	investigation 	of 	the
remaining 	drops 	and 	the 	District 	offered 	no credible 	evidence 	to
show 	that 	they were 	based 	on 	valid 	complaints 	against 	de 	Tuncq
as 	opposed 	to 	student 	dissatisfaction with 	the 	fact 	that 	they
were 	doing 	poorly 	in 	the 	course.33
Lastly, 	assuming 	the District's 	class 	size 	statistics 	are
accurate, 	de Tuncq's 	average 	class 	size 	had 	been 	low ever 	since
Conner 	became principal. 	Despite 	this, 	Conner 	never 	raised
33The drop 	slips 	submitted 	by 	two 	of 	these 	students
indicated 	that 	they 	dropped 	the 	course 	because 	of 	de 	Tuncq's
classroom comments. 	None of 	these 	students 	testified, 	and
there 	is 	no 	evidence 	that Conner 	investigated 	these 	comments
for 	accuracy. 	Indeed, 	there 	seems 	to have been no close
scrutiny of 	these 	comments 	by any District 	official. 	In view
of 	Rebecca Bradley's 	description 	of 	what 	the 	District
considered 	to be 	offensive 	comments 	made 	by de Tuncq 	in class,
the 	failure 	on 	the 	part 	of 	the 	District 	to more 	closely 	examine
the 	content of drop 	slips makes 	it 	impossible 	to give 	this
evidence 	any 	weight.
72

this 	matter 	with de Tuncq, 	nor 	did 	he 	ever 	attempt 	to 	relate
class 	size 	to de Tuncq 	in 	any 	adverse 	way. 	Therefore,
statistics 	showing low class 	size, 	standing 	alone, 	carry 	little
weight 	as 	to 	the 	questions 	of 	whether 	de 	Tuncq 	related 	poorly
to parents 	or 	students or 	that he 	needed 	a change.
Application 	of 	the Carlsbad 	Test.
The 	Board 	established 	a 	single 	test 	for 	resolving 	alleged
violations 	of 	section 3543.5 (a) 	dealing with 	employer 	conduct.
Carlsbad Unified School District 	(1/30/79) 	PERB Decision No. 	89.
This 	test may 	be 	summarized 	as 	follows. 	Where 	there 	is 	a 	nexus
between 	the 	employer's 	acts 	and 	the 	exercise 	of 	employee 	rights
a 	prima 	facie 	case 	is 	established 	upon 	a 	showing 	that 	those 	acts
resulted 	in 	some 	harm 	to 	the 	employee's 	rights. 	If 	the 	employer
offers 	operational 	necessity 	in 	explanation 	of 	its 	conduct 	the
competing 	interests 	of 	the 	parties 	are 	balanced 	and 	the 	issue
resolved 	accordingly. 	If 	the 	employer's 	acts 	are 	inherently
destructive of 	employee 	rights 	however, 	those 	acts 	can be
exonerated 	only upon 	a 	showing 	that 	they were 	the 	result 	of
circumstances 	beyond 	the 	employer's 	control 	and 	no 	alternative
course of 	action was 	available. 	In any event, 	the charge will
be 	sustained 	if 	unlawful 	intent 	is 	established 	either
affirmatively or 	by 	inference 	from 	the 	record. 	Santa Monica
Community College District 	(9/21/79) 	PERB Decision No. 	103 	at
p. 	17. 	The 	application of 	this 	test will determine 	the outcome
of 	the 	instant charge.
73

de Tuncq had 	a 	long 	history 	of 	union 	activism at 	Novato
High School. 	He 	served 	as 	the Federation's 	president,
negotiator, 	grievance officer, 	grievance committeeman, 	and
building 	representative. 	These 	activities 	brought 	him 	into
direct 	conflict 	with 	Principal 	Conner 	on 	significant 	issues 	at
Novato High School, 	i.e. 	class size grievance, 	disputes over
teaching 	basic 	language 	skills, 	and 	entering 	of 	absences 	and
tardies 	on 	report cards. 	In 	several of 	these matters 	the
controversy 	boiled 	down 	to 	a 	confrontation 	between Conner 	and
de Tuncq. 	Frequently 	the 	dispute 	was 	aired 	in 	full 	view of 	unit
employees 	as 	in 	those 	instances 	where 	de Tuncq circulated 	memos
to 	employees 	exhorting 	them not 	to 	follow a particular 	Conner
directive, 	e.g. 	de Tuncq's memo 	to employees 	regarding 	the
absence 	and 	tardy 	issue. 	In 	addition, 	de Tuncq openly defied
Conner 	by 	refusing 	to 	enter 	the 	absence 	and 	tardy 	information
on his 	report 	cards, 	and 	Conner 	responded 	by 	lowering 	de Tuncq's
evaluation 	in 	recordkeeping 	for 	failing 	to 	follow 	his
instructions. 	It 	is 	undisputed 	that de Tuncq was 	a union
activist 	and 	the District 	was 	aware of 	his 	activities.
Conner's 	animosity 	toward 	de 	Tuncq 	clearly 	showed 	in
grievance procedure, 	the main vehicle 	de Tuncq had 	for
challenging 	the 	action. 	Despite 	the 	seriousness 	of 	the
grievance, 	Conner 	never 	fully explained 	the 	reasons 	for 	the
transfer, 	either 	in these meetings or 	in 	the May 28 	letter
74

officially 	announcing 	the 	transfer.34 Upon 	being 	questioned
by 	de 	Tuncq on 	this 	point 	Conner 	would 	only 	reply 	that 	the
transfer 	was 	for 	the 	good 	of 	the 	school. 	As 	the 	record 	shows,
there 	were 	other 	more 	specific 	reasons. 	Conner's 	explanation
during 	the 	grievance 	procedure 	that 	de Tuncq was 	being
transferred 	"for 	the 	best 	interest 	of 	the 	school," 	with 	no
determination 	as 	to where 	he would 	be 	transferred 	is 	akin 	to 	no
explanation 	at 	all. 	The NLRB has 	looked 	upon 	such 	conduct 	as
evidence 	of 	a discriminatory motive. 	Taft Broadcasting Co.
(1978) 	238 NLRB 588 	[99 LRRM 1403].
When 	Conner 	eventually 	articulated 	the 	reasons 	underlying
the 	transfer 	decision, 	they 	emerged 	as 	vague 	and 	shifting. 	The
post-March 	24 	complaints 	(disagreement 	about 	actual 	letter
grades, 	confusion over 	class 	assignments 	and 	alleged 	improper
or 	offensive 	comments) 	were 	reasons 	given for 	the 	transfer.
There were, 	however, 	other 	reasons given at different 	times.
For 	example, 	in May 	1980 	Conner 	said de 	Tuncq was being
transferred 	because he 	needed 	a 	change, 	was 	rude 	and 	abrupt
with parents, 	thus generating 	a lot of complaints, 	and was
likewise 	rude 	and 	abrupt 	with 	faculty members. 	The 	latter
34The 	only 	time Conner 	made 	any 	attempt 	to 	tell 	de Tuncq
why he 	was 	being 	transferred 	was 	during 	the May 	12 	discussion.
However, 	even 	then he 	said 	only 	that 	he was 	relieving 	de Tuncq
of 	the 	department 	chairperson duties 	and 	thinking 	of
transferring 	him 	because 	of parent 	complaints. 	Some 	reasons
for 	the 	transfer 	were mentioned, 	but 	none were 	fully discussed.
75

reason 	was 	never 	again mentioned 	as 	a 	reason 	for 	the 	transfer.
When 	called 	to 	testify 	at 	the 	hearing, 	Conner 	reiterated 	the
reasons given 	in May, 	except 	for 	being 	rude 	and 	abrupt 	with
faculty. 	He 	also 	added 	that 	de 	Tuncq had 	a 	lower 	average 	class
size 	than other 	teachers 	in 	the department, 	had 	no patience
with 	slower 	students, 	and 	confused 	students 	by not 	clearly
making 	work 	assignments. 	Upon 	being 	recalled 	to 	the 	stand,
Conner 	added 	yet 	another 	reason 	that 	de 	Tuncq's 	grading 	policy
and 	confusion 	as 	to how he 	arrived 	at 	a grade 	were 	reasons 	for
the 	transfer. 	Each of 	these 	reasons 	is 	addressed 	in 	this
decision. 	However, 	it 	should be 	noted 	that 	the 	shifting 	and
vague 	reasons 	offered 	by Conner 	are 	themselves 	indicative 	of 	an
unlawful motive. 	See The Roberts Press 	(1971) 	188 NLRB 	454.-
[76 LRRM 1337]; 	Stoll Industries, 	Inc. 	(1976) 	223 NLRB 51 	[92
LRRM 	1188].
In 	addition, 	the 	evidence 	showed 	that 	there 	has 	never 	been
another 	transfer 	of a department chairperson. 	Despite
de Tuncq's position 	and 	experience, 	Conner 	never 	seriously
attempted 	to 	counsel 	him on 	his 	alleged 	shortcomings. 	After
years 	of 	receiving 	near 	perfect 	evaluations 	from Conner,
de Tuncq 	was 	transferred 	after 	Conner 	received 	a 	handful 	of
groundless 	complaints.
Further, 	the 	abrupt 	transfer 	was 	to 	a position which 	seems
entirely 	inappropriate 	for 	a 	teacher 	of 	de 	Tuncq's 	experience
and 	record. 	de Tuncq, 	a 23-year 	social 	studies 	teacher 	at 	the
76

secondary level, 	was 	initially 	transferred 	to a permanent
substitute position 	in 	a 	junior 	high 	school. 	As 	of 	the
approximate 	time of hearing., 	the District was 	still 	searching
to 	find 	or 	create 	some 	other 	position 	for 	de Tuncq. 	Eventually,
he 	was 	again 	transferred 	to San Jose Junior 	High 	School 	where
he 	was 	permanently 	assigned 	to 	teach 	United 	States 	history 	and
law, 	the 	latter 	a 	subject 	about 	which 	he 	admittedly 	knew little.
In order 	to 	fit de Tuncq 	into 	this 	assignment, 	the District,
after 	the 	school 	term had 	started, 	rearranged 	the 	teaching
assignments 	of 	several other 	teachers 	in 	that 	school. 	This
appears 	to 	be disruptive of 	the 	educational process 	rather 	than
beneficial 	to it, and 	creates 	a 	serious question 	as 	to 	the
legitimacy 	of 	the 	transfer. 	See 	Carlsbad Unified School
District 	(1/30/79) 	PERB Decision No. 	89, 	at p. 	12, 	where a
transfer 	under 	like 	conditions 	was 	similarly 	viewed 	as 	unlawful
by 	the Board.
Further, 	the 	transfer 	was 	illegally based, 	at least 	in part,
on 	information 	secretly maintained 	by Conner 	in 	a 	confidential
file. 	de Tuncq was 	not 	aware 	of 	the 	file 	itself, 	nor 	was 	he
aware 	of 	much 	of 	the 	information 	contained 	therein 	and 	used 	by
Conner 	as 	a basis 	for 	the 	transfer. 	For 	example, 	de Tuncq was
not made 	aware 	of 	Slevin's 	written 	version of 	her 	experience 	in
his 	class 	solicited 	by Vice 	Principal Ross. 	The 	same 	is 	true
of 	the 	letter 	from 	the 	Dykes 	family 	which 	was 	critical 	of
de Tuncq. 	de Tuncq had 	never 	seen Conner's May 	12 	memo 	to
Franklin; 	though he was 	aware of 	some of 	the 	information 	in
77

that memo 	(i.e., 	that 	relating 	to 	the Briggs 	and Wilhelm
incidents), 	he was not 	aware of other 	information 	included
therein 	(i.e., 	that relating 	to Barsch and Silva). 	Moreover,
while 	de 	Tuncq may have 	been 	aware 	of 	the 	occurrence 	of 	certain
events 	which 	were 	reflected 	in 	the 	file 	he 	was 	certainly 	not
aware 	that 	information 	about 	these 	events 	was 	being 	stored 	to
use 	against him as a 	reason 	for 	his 	transfer, 	e.g. 	student drop
slips, 	class lists, 	class size statistics. 	By maintaining
derogatory 	information 	in 	this 	file 	and 	using 	it 	as part 	of 	the
reason 	for 	the 	transfer 	without 	first 	giving 	de 	Tuncq 	the
opportunity 	to 	review or 	respond 	to 	it, 	Conner 	appears 	to have
violated 	the 	District's 	internal 	policy 	covering 	personnel
files, 	as 	well 	as 	section 	44031 	of 	the Education 	Code.35 The
California Supreme Court 	has 	recently 	interpreted 	this 	section
to mean 	that:
Unless 	the 	school 	district 	notifies 	the
employee 	of 	such 	derogatory material 	within
a 	reasonable 	time 	of 	ascertaining 	the
material, 	so 	that 	the employee may gather
pertinent 	information 	in his defense, 	the
district 	may 	not 	fairly 	rely 	on 	the 	material
in 	reaching 	any decision 	affecting 	the
employee's employment 	status. 	Miller 	v.
Chico Unified 	School 	District 	(1979) 	24
Cal. 3d 703, 713, 157 Cal.Rptr. 72.
35Education Code, 	section 44031, 	states 	in relevant part:
Materials 	in personnel 	files 	of 	employees
which 	may 	serve 	as 	a 	basis 	for 	affecting 	the
status 	of 	their 	employment 	are 	to be made
78

It 	is clear 	that 	this 	rule 	has 	been violated 	in 	the 	present
case.
The 	information 	kept 	in Conner's 	file 	indicates 	a desire 	to
build 	a case 	against de Tuncq as 	a pretext 	to 	transfer 	him. 	If
Conner 	was 	genuinely 	concerned 	about 	parent/student 	complaints
or 	student drops, 	he would 	have 	told 	de Tuncq of 	the 	information
he 	was 	keeping 	in 	the 	file 	and 	discussed 	the 	substance 	of 	these
matters 	with 	him. 	In 	any 	normal 	employer-employee 	relationship
this 	would 	have 	occurred. 	Inasmuch 	as 	Conner 	did 	not 	tell
de Tuncq of most of 	the 	information 	in 	the 	file, 	or 	of 	the
possibility 	that 	the 	information would 	be 	used 	against 	him, 	it
is 	concluded 	that Conner 	was 	not 	nearly 	as 	concerned 	with 	the
-. . ... . .
available 	for 	the 	inspection of 	the 	person
involved.
Every 	employee 	shall 	have 	the 	right 	to
inspect 	such materials 	upon 	request,
provided 	that 	the 	request 	is 	made 	at 	a 	time
when 	such person 	is 	not 	actually 	required 	to
render 	services 	to 	the 	employment district.
Information of a derogatory nature, 	except
material 	mentioned 	in 	the 	second 	paragraph
of 	this 	section, 	shall 	not 	be entered 	or
filed 	unless 	and 	until 	the 	employee 	is given
notice 	and 	an 	opportunity 	to 	review 	and
comment 	thereon. 	An 	enployee 	shall 	have 	the
right 	to enter, 	and 	have 	attached 	to any
such 	derogatory 	statement 	his 	own 	comments
thereon. 	Such 	review 	shall 	take place
during 	normal 	business 	hours 	and 	the
employee 	shall 	be 	released 	from duty 	for
this 	purpose 	without 	salary 	reduction.
79
•

substance 	of 	the 	information 	or 	the 	resolution 	of 	the 	so-called
complaints 	as 	he 	was 	with 	building 	a paper 	record 	against
de Tuncq. 	Since de Tuncq had 	recently 	received 	a good
evaluation 	and 	Conner 	had 	clearly 	overstated 	the 	complaints
against 	him, 	it 	is 	further 	concluded 	that 	the decision 	to 	keep
the 	file 	on 	de Tuncq 	and 	the 	secret 	manner 	by which 	this 	was
done, 	is evidence of an unlawful motive. 	FAR-MAR Co. 	supra,
p. 817.
The 	fact 	that 	Conner 	investigated 	practically none 	of 	the
"incidents" 	contained 	in 	the 	file 	similarly 	shows 	an 	unlawful
motive. 	By 	investigating 	these 	matters, 	Conner 	could 	have
determined 	that 	they were 	either 	totally 	groundless 	or 	able 	to
be 	resolved 	by 	face-to-face 	discussion. 	Failure 	to do 	so 	or
engaging 	in 	a 	one-sided 	investigation 	by 	talking 	only 	to
guidance 	counselors or 	parents 	shows 	a haste 	to build 	a 	record
against 	de Tuncq and 	to 	be 	rid 	of 	him. 	TAMA Meat 	Packing
Corp., supra.
Under 	these 	circumstances 	the 	District's 	actions 	suggest 	a
predetermined 	plan 	to discover 	reasons 	to 	transfer 	de 	Tuncq 	and
thus 	rid 	Novato 	High 	School 	of 	a 	union 	activist.36 The
transfer 	seems 	totally 	inappropriate 	for 	a 	teacher 	of
de Tuncq's experience 	and 	record. 	As 	the Board 	stated 	in 	a
similar 	case, 	the transfer:
36The 	charging 	party has 	also 	argued 	that 	de 	Tuncq's
80

. 	. 	. 	is comparable to the 	instance where an
employer 	formulates 	and 	implements 	a
discriminatory 	hiring 	policy 	designed 	to
prevent 	the 	introduction 	into 	the 	work
facility of 	known 	union 	sympathizers.
Carlsbad 	Unified 	School 	District 	(1/30/79)
PERB Decision No. 	89, at pp. 	12, 13.
Thus 	it 	is 	concluded 	that 	the 	charging 	party has met 	its 	initial
burden of 	showing 	a 	"harmful 	nexus" 	between 	a 	right 	protected
by 	the 	EERA 	and 	the 	District's 	actions. 	Grossmont 	Community
College District 	(3/19/80) 	PERB Decision No. 	117.
The District, 	in 	its brief, 	argues 	that no nexus exists.
Although 	it 	is 	undisputed 	that 	de 	Tuncq had 	a 	history of 	union
activism, 	the District argues, 	there was no one 	act or 	incident
related 	to protected 	activity 	to which 	charging 	party 	can 	point
in 	support 	of 	its 	argument 	that 	the 	requisite 	nexus 	exists.
This 	argument 	is without merit. 	The 	fact 	that 	there 	appears 	to
be 	no 	single 	protected 	act 	by 	de 	Tuncq 	which 	provoked 	the
discriminatory 	transfer 	does 	not 	warrant 	a 	conclusion 	that 	no
nexus 	exists. 	The 	timing 	of 	the 	transfer:
transfer 	violated 	the 	collective 	bargaining 	agreement, 	thereby
evidencing 	further 	unlawful 	motive 	on behalf 	of 	the District.
This 	argument 	goes 	as 	follows. 	The 	contract 	provides only 	two
reasons 	for 	which 	the 	District 	can 	involuntarily 	transfer 	an
employee 	— 	a 	staff 	reduction 	at 	a 	school 	and 	a 	program change
in 	special 	services. 	Since de Tuncq's 	transfer 	was 	for 	neither
of 	these 	reasons, 	according 	to charging party, 	the contract has
been violated. 	The express 	language 	in 	the 	contract 	is 	unclear
as 	to 	whether 	involuntary 	transfer 	must 	be 	for 	only 	these 	two
reasons, 	and 	the 	negotiating history as 	testified 	to by
witnesses 	for 	both 	parties 	did 	little 	to 	clear 	up 	the 	meaning
of 	this clause. 	Therefore, 	it cannot be concluded 	that 	the
transfer 	violated 	the 	contract 	and 	no 	unlawful motive 	can 	be
attributed 	to 	the District 	by way 	of 	a contract 	violation.
81

. 	. 	. 	may reflect nothing more 	than a
particular 	employer's 	superior 	sophistication
[and] 	is not sufficient basis 	to disregard
otherwise 	substantial 	evidence 	of 	unlawful
motivation. 	Stoffel Seals Corp. 	(1972) 	199
NLRB 1084 	[81 LRRM 1363], 	enf. 	(CA 5 1973)
480 F.2d 	923 	[83 LRRM 2528]. 	See also
Florida Medical Center, 	Inc.
The 	requisite 	nexus having 	been established, 	let 	us 	now 	turn 	to
the 	application of 	the 	test.
A portion of 	the Carlsbad 	test 	states:
A charge will 	be 	sustained 	where 	it 	is 	shown
that 	the 	employer 	would 	not 	have 	engaged 	in
the 	complained 	of 	conduct 	but 	for 	an 	unlawful
motivation, 	purpose or 	intent
Unlawful motivation, 	purpose or 	intent 	is
essentially a 	state of mind, 	a 	subjective
condition 	generally 	known 	only 	to 	the 	charged
party. 	Direct 	and 	affirmative proof 	is 	not
always available or 	possible. 	However
following 	generally 	accepted 	principles 	the
presence 	of 	such 	unlawful 	motivation 	purpose
or 	intent may 	be 	established 	by 	inference
from 	the 	record 	as 	a whole. 	Carlsbad 	Unified
School District, supra, at p. 	11.
The 	requisite 	unlawful 	motive 	may 	be 	readily 	inferred 	from
the 	record 	in 	this 	case 	since 	the District's 	reasons 	for
transferring de Tuncq, 	a recognized 	union activist, 	have 	been
found 	to 	be 	wholly 	without 	merit.37
If 	[the 	trier 	of 	fact] 	finds 	that 	the 	stated
motive for a 	[transfer] 	is false, 	he
certainly can 	infer 	that 	there 	is 	another
37The 	record 	shows, 	i.e., 	that de Tuncq was 	not 	stale and
therefore did 	not 	need 	a change. 	Also., 	the complaints 	against
de Tuncq were 	without merit, 	or 	not 	supported 	by 	the 	record
evidence, 	and 	the class 	size 	statistics 	are 	not 	indicative of
parent 	or 	student 	dissatisfaction with 	de Tuncq.
82

motive. 	More 	than 	that, 	he can 	infer 	that
the 	motive 	is 	one 	that 	the 	employer 	desires
to conceal - 	an unlawful motive - 	at least
where, 	as in this case, 	the surrounding facts
tend 	to 	reinforce 	that 	inference. 	Shattick
Denn Mining Corp. 	v. 	NLRB 	(CA 9, 	1966) 	362
F.2d 	466 	[62 	LRRM 240, 	p. 	2404].
Under 	the 	circumstances presented 	here, 	the 	hearing 	officer 	is
compelled 	to draw 	the 	inference 	that 	the District's 	transfer 	of
de 	Tuncq was 	motivated 	by 	his 	many years 	of protected 	activity.
This 	inference 	is 	based 	primarily on 	the 	pretextual 	nature 	of
the 	offered 	reasons 	for 	the 	transfer. 	See Belridge 	School
District 	(12/31/80) 	PERB Decision No. 	157; Marin Community
College District, 	supra. 	However, 	as 	the 	foregoing discussion
indicates, 	the 	record 	is 	replete with 	evidence which 	supports
this 	inference.
This 	evidence 	may 	be 	summarized 	as 	follows. 	de Tuncq had 	a
23-year 	history of 	outstanding 	service 	at NHS 	and 	was 	elected
chairperson 	of 	his department. 	No 	chairperson 	had 	ever 	been
transferred 	for 	any 	reason. 	The 	record 	shows 	that 	the 	recent
complaints 	were 	totally 	inconsistent 	with 	de 	Tuncq's 	excellent
evaluations 	while 	a 	teacher 	under 	Conner. 	Prior 	incidents 	of 	a
similar 	nature 	were 	considered 	so 	insignificant 	they 	were 	not
recorded 	in 	any 	evaluation.
Furthermore, 	the 	complaints 	which 	were 	used 	by Conner 	to
put 	a 	blemish 	on de 	Tuncq's 	record 	were 	based on policies 	used
by de Tuncq, 	known 	to Conner 	and 	never 	challenged 	in 	any way.
Most 	of 	these 	complaints 	and/or 	drops 	were 	never 	investigated
83

by Conner, 	nor 	were 	they ever 	brought 	to de Tuncq's 	attention
so 	that 	he 	could 	be 	advised 	as 	to how 	they 	could 	be 	corrected.
Conner's 	failure 	to provide 	de Tuncq with 	an 	adequate
explanation 	of 	the 	transfer 	in writing 	or 	during 	the 	grievance
procedure 	indicates 	unlawful 	motive. 	When Conner 	did
articulate 	reasons 	for 	the 	transfer, 	they 	emerged 	as 	vague 	and
shifting. 	Finally, 	the 	secret 	file, 	kept 	in apparent violation
of 	the District's own policy as well 	as 	the Education Code, 	is
evidence of unlawful motive. 	Thus, 	under this part of the Carlsbad
test, 	it 	is 	found that the District violated section 3543.5(a).
it 	is 	found 	that 	the District violated 	section 3543.5(a).
Another 	part 	of 	the 	Carlsbad 	test 	provides 	that:
Where 	the harm to employees' 	rights 	is 	slight
and 	the 	employer 	offers 	justification 	based
on 	operational 	necessity 	the 	competing 	rights
of 	the 	employer 	and 	the 	rights 	of 	the
employees 	will 	be 	balanced 	and 	the 	charge
resolved 	accordingly. 	Carlsbad 	Unified
School District, supra, at p. 	10.
The 	District's 	actions 	have 	resulted 	in 	at 	least 	slight 	harm 	to
de Tuncq's 	rights 	under 	the Act, 	as well 	as 	to rights of other
teachers 	at NHS, 	since 	the 	transfer 	had 	the 	"natural 	and
probable 	consequences 	of 	causing 	other 	employees 	to 	fear 	that
similar 	action would 	be 	taken 	against 	them 	if 	they 	engaged 	in
organizing" 	for 	NFT. 	Carlsbad 	Unified 	School 	District, 	supra,
at p. 	13. 	Thus, 	a prima facie case has been established 	and 	it
is 	incumbent 	upon 	the District 	to come 	forward 	with
justification 	based 	on operational 	necessity 	to 	explain 	its
actions. 	If 	it does 	so 	the 	rights of 	the parties 	are balanced
84

and 	the charges resolved 	accordingly. 	Here, 	however, 	the
District's 	reasons 	have 	been 	found 	to be 	pretextual 	and 	totally
without merit. 	Thus, 	the 	balancing aspect of 	the Carlsbad 	test
need 	not 	be 	applied. 	The 	District 	has 	violated 	section
3543.5(a). 	See Belridge School District, 	supra; Marin Community
College District, 	supra; Wright Line, 	Inc. 	(1980) 	251 NLRB 150
[105 	LRRM 	1169].
Even 	assuming 	that 	the 	reasons 	offered 	by 	the 	District 	were
found 	to have 	some merit, 	thus 	triggering 	the 	balancing 	aspect
of 	the 	Carlsbad 	test, 	this would 	not 	alter 	the 	conclusion 	that
section 	3543.5 	(a) 	has been violated. 	In balancing 	the parties'
rights, 	it 	is difficult 	to 	find 	record 	evidence 	that 	indicates
the 	transfer 	improved 	the 	operation of 	the District 	or 	in 	any
way helped 	the 	District 	to carry out 	its mission. 	The 	record
is 	similarly devoid 	of 	evidence 	that 	the 	transfer 	corrected 	the
alleged 	shortcomings 	of 	George 	de 	Tuncq.
With 	respect 	to de Tuncq, 	even 	in his new position 	at San
Jose 	Junior 	High 	School 	he 	would 	have 	to deal 	with parents 	and
students, 	and he may have emerged 	as 	"stale" 	at 	the 	junior 	high
school 	level 	as 	he 	allegedly was 	at 	the 	senior 	high 	school
level. 	The District 	has offered 	no concrete 	evidence 	that 	the
transfer 	in 	and 	of 	itself 	would 	correct 	his 	alleged 	shortcomings
in 	these 	areas. 	Similarly, 	there was 	no evidence presented 	that
the 	District 	has 	taken 	any 	affirmative 	steps 	to 	correct 	these
perceived 	shortcomings, 	nor 	has 	it 	acted 	to 	require or 	even
85

suggest 	that 	de Tuncq change 	his 	policies 	relating 	to grading,
assigning 	work 	or 	dropping 	classes. 	The 	District 	simply 	ignored
the possibility of 	any 	corrective 	action 	other 	than 	the 	drastic
step 	it 	took. 	Indeed, 	not only did 	the 	District make no
attempts along 	this line, 	Conner, 	by virtue of his positive
evaluations 	and 	failure 	to 	bring 	these 	matters 	to de Tuncq's
attention 	in 	any meaningful 	fashion, 	actually 	led 	de Tuncq 	to
believe 	that 	no problems 	existed. 	If 	Conner 	genuinely 	believed
that 	de Tuncq's 	conduct 	undermined 	the 	educational process 	in
any 	significant 	way, 	he 	surely would 	have 	taken other 	corrective
measures 	at 	an earlier 	stage; 	alternatively, 	he could 	have 	taken
other 	more 	constructive measures 	at 	the 	time of 	the 	transfer.
The 	failure 	to do 	so weights 	heavily 	against 	the District 	in 	any
balancing 	process.
Moreover, 	given 	the 	circumstances 	under 	which 	the 	transfer
was made, 	it appears 	as 	if 	it was harmful 	to the educational
process. 	Conner 	testified 	favorably with 	regard 	to de 	Tuncq's
teaching 	ability, 	and 	said 	it did 	not 	figure 	in his decision 	to
transfer. 	Thus, 	students 	at NHS were denied 	the benefits 	of
de 	Tuncq's 	experience 	and 	teaching 	ability 	in 	certain 	"advanced"
classes. 	Also, 	the 	social studies department as a whole lost
the 	chairman 	who 	had 	obviously 	performed 	admirably 	in 	the 	past
in this position.
de 	Tuncq was 	assigned 	to 	the 	junior 	high 	school 	level 	to
teach U.S. 	history and 	law, 	the latter 	a 	subject about which 	he
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admittedly 	knew very 	little. 	To make 	room 	for 	him at 	the 	San
Jose 	Junior 	High 	School, 	the District had 	to 	shuffle 	the
assignments 	of 	other 	teachers 	after 	the 	fall 	term had 	begun.
This 	scenario 	of 	events 	does 	not 	strike 	the 	hearing 	office 	as
furthering 	any 	educational 	objectives.
Additionally, 	de 	Tuncq's 	transfer 	seriously 	interfered 	with
rights 	guaranteed 	by 	the EERA. 	Teachers 	at NHS were denied
their 	most 	vocal 	and 	active 	union 	representative 	and 	the 	local
union 	was 	undermined 	in 	the 	eyes of 	unit 	employees. 	This 	had
the 	natural 	and 	probable 	consequences 	of 	chilling 	the 	exercise
of protected 	rights 	under 	the Act. 	Moreover 	de Tuncq was
denied 	the 	right 	to engage 	in protected 	activity at NHS. 	More
importantly 	he 	was 	penalized 	for 	engaging 	in 	such 	activity.
On balance, 	even 	accepting 	the 	District's 	reasons 	for 	the
transfer 	as 	having 	some merit, 	the offered 	justification,
especially 	in view of 	the District's 	alternatives, 	does 	not
outweigh 	the 	harm 	to 	employee 	rights 	which 	would 	flow 	from
de 	Tuncq's 	transfer.
Based 	on the 	foregoing, 	it 	is concluded 	that 	by
transferring 	George 	de 	Tuncq 	the 	District 	violated 	section
3543.5(a). 	In these circumstances, 	retaliation against a
Federation 	activist 	for 	participating 	in 	protected 	activity 	is
also a concurrent 	violation of 	section 3543.5(b). 	Santa Monica
Unified School District 	(12/10/80) 	PERB Decision No. 	147.
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The 	Right 	to 	Information
Charging 	party argues 	that 	the 	District 	violated 	the Act 	by
refusing 	to 	provide 	information 	regarding 	involuntarily
transferred 	employees 	to 	the Federation. 	The 	District, 	on 	the
other 	hand, 	argues 	that 	it provided 	the 	information 	in a 	timely
manner.
It 	is 	well 	established 	that 	an 	employee 	organization 	has
the 	right 	to 	information 	which 	is 	necessary 	and 	relevant 	to
carrying 	out 	its 	responsibilities 	as 	an 	exclusive
representative. 	Stockton 	Unified 	School 	District 	(11/3/80)
PERB Decision No. 	143. 	Under 	the 	circumstances presented 	here,
it 	is 	concluded 	that 	the Federation was 	not 	denied 	its 	right 	in
this 	regard. 	The 	District did 	not 	have 	the 	information
available 	at 	the 	time of 	the 	request. 	However, 	it provided 	the
information 	within 	approximately 	one 	week 	of 	the 	request 	and
District 	representatives 	met 	with 	Federation 	representatives 	to
discuss 	the 	matter. 	There 	was 	no evidence 	presented 	to
show 	that 	the 	Federation 	was 	disadvantaged 	in 	representing 	unit
employees 	by 	this 	short delay.
Therefore, 	the Federation's charge 	that 	it was denied
information 	in violation of 	its 	statutory rights 	is 	hereby
dismissed.
REMEDY
Under Government Code 	section 3541.5 	(c), 	PERB is given:
. 	. 	. 	the power 	to issue a decision and order
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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.
Under 	the circumstances presented 	here, 	it 	is 	appropriate
to 	order 	the 	District 	to 	cease 	and 	desist 	from discriminating
against 	employees 	by 	transferring 	them 	because 	of 	their 	exercise
of protected 	rights 	under 	the EERA. 	In addition, 	it 	is
appropriate 	to order 	the 	District 	to 	reinstate 	George 	de 	Tuncq
to his 	former 	or 	equivalent position at NHS, 	including
reinstatement 	as 	chairperson of 	the 	social 	studies 	department,
and 	to make him whole 	for 	any losses, 	economic or 	otherwise,
sustained 	as 	a 	result 	of 	the District's 	discriminatory 	action.
This 	remedy 	is 	consistent 	with 	that 	imposed 	by 	the Board 	in 	a
similar 	discriminatory 	transfer. 	See 	Carlsbad 	Unified 	School
District, supra.
In addition, 	it 	is 	appropriate to order the District 	to
cease 	and 	desist 	from denying 	the 	Federation 	the 	right 	to
represent 	members 	in 	the 	negotiating 	unit 	by 	transferring
employees 	for 	engaging 	in 	protected 	activity on 	behalf 	of 	the
Federation 	and 	the 	employees 	it 	represents. 	See 	Santa Monica
Unified School District, 	supra, 	PERB Decision No. 	147.
It 	also 	is 	appropriate 	that 	the 	District 	be 	required 	to post
a 	notice 	incorporating 	the 	terms 	of 	the 	order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
indicating 	that 	it 	will 	comply with 	the 	terms 	thereof. 	The
89

notice 	shall 	not be 	reduced 	in 	size. 	Posting 	such 	a 	notice 	will
provide 	employees 	with 	notice 	that 	the 	District 	has 	acted 	in 	an
unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist 	from
this 	activity and 	to restore 	the 	status quo. 	It 	effectuates
the purposes 	of 	the 	EERA 	that 	employees 	be 	informed 	of 	the
resolution 	of 	the 	controversy 	and 	will 	announce 	the 	District's
readiness 	to 	comply with 	the 	ordered 	remedy. 	See 	Placerville
Union School District 	(9/18/78) 	PERB Decision No. 	69. 	In
Pandol 	and Sons v. 	ALRB and UFW 	(1979) 	98 Cal.App.3d 	580, 	587,
the 	California District 	Court 	of Appeal 	approved 	a posting
requirement. 	The U.S. 	Supreme Court 	approved 	a 	similar 	posting
requirement 	in NLRB v. 	Express Publishing Co. 	(1941) 	312 U.S.
426 	[8 LRRM 415].
Finally, 	it 	is appropriate 	to dismiss 	that part of 	the
Federation's 	charge dealing 	with 	the 	alleged 	refusal 	of 	the
District 	to 	provide 	relevant 	and 	necessary 	information 	to
enable 	it 	to carry out 	its 	responsibilities 	as 	the 	exclusive
representative.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	section
3541.5 	(c) 	of 	the 	Educational 	Employment Relations Act, 	it 	is
hereby 	ordered 	that 	the 	Novato 	Unified 	School 	District 	and 	its
respective 	agents 	shall:
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1. 	CEASE AND DESIST 	FROM:
(a) 	Imposing 	or 	threatening 	to 	impose 	reprisals 	on
George 	de 	Tuncq, 	discriminating 	or 	threatening 	to 	discriminate
against 	George 	de 	Tuncq 	or 	otherwise 	interfering 	with,
restraining, 	or 	coercing 	George 	de 	Tuncq 	because 	of 	the
exercise 	of his 	rights 	to 	form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of 	his 	own 	choosing 	for
the 	purpose 	of 	representation 	in 	all 	matters 	of
employer-employee 	relations, 	including 	the 	right 	to 	file
grievances 	and 	otherwise 	serve 	as 	a 	representative 	of 	the
Novato 	Federation 	of 	Teachers, 	by 	discriminatorily 	transferring
George 	de 	Tuncq 	from 	his 	position 	of 	social 	studies 	teacher 	and
department 	chairperson 	at 	Novato 	High 	School 	to 	the 	position 	of
social 	studies 	teacher 	at 	San 	Jose 	Junior 	High 	School;
(b) 	Denying 	the 	right 	of 	the 	Novato 	Federation 	of
Teachers, 	Local 	1986, 	AFT, 	AFL-CIO to 	represent 	unit members 	by
transferring 	George 	de 	Tuncq 	for 	engaging 	in 	protected 	activity
on 	behalf 	of 	the 	Federation 	and 	members 	of 	the 	negotiating 	unit
it represents.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED
TO 	EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT.
(a) 	Upon 	request, 	immediately 	offer 	to George
de Tuncq 	full 	reinstatement 	to 	his 	former 	or 	equivalent
position 	at 	NHS, 	including 	chairperson 	of 	the 	department,
without 	prejudice 	to 	his 	seniority or 	other 	rights, 	benefits
and/or 	privileges 	enjoyed;
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(b) 	Make George 	de 	Tuncq whole 	for 	any losses 	of pay
and/or 	other 	benefits 	he 	may 	have 	incurred 	as 	a 	result 	of 	the
discriminatory 	transfer. 	Payment 	on 	such 	losses 	shall 	be 	at
the 	interest 	rate 	of 	seven 	per 	cent 	per 	annum.
(c) 	Within 	five 	(5) 	workdays 	after 	this 	decision
becomes 	final, 	prepare 	and 	post 	copies 	of 	the 	NOTICE TO
EMPLOYEES 	attached 	as 	an 	appendix 	hereto, 	for 	at 	least 	thirty
(30) 	workdays 	at 	its 	headquarters 	offices 	and 	in conspicuous
places 	at 	the 	location 	where 	notices 	to 	certificated 	employees
are 	customarily posted. 	It 	must 	not 	be 	reduced 	in 	size 	and
reasonable 	steps 	should 	be 	taken 	to 	see 	that 	it 	is 	not defaced,
altered 	or 	covered 	by 	any material.
(d) 	Within 	twenty 	(20) 	workdays 	from 	service 	of 	the
final 	decision herein, 	give 	written 	notification 	to 	the 	San
Francisco 	Regional 	Director 	of 	the 	Public 	Employment 	Relations
Board, 	of 	the 	actions 	taken 	to comply with 	this 	Order. 	Continue
to 	report 	in 	writing 	to 	the 	Regional 	Director 	thereafter 	as
directed. 	All 	reports 	to 	the 	Regional 	Director 	shall 	be
concurrently 	served 	on 	the 	charging 	party 	herein.
That 	part 	of 	the 	Federation's 	charge 	dealing 	with 	the
refusal 	of 	the 	District 	to 	provide 	information 	is 	hereby
DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this Proposed 	Decision 	and 	Order 	shall
become 	final on 	August 	12, 	1981, 	unless 	a party files 	a 	timely
92

statement 	of 	exceptions. 	See 	California Administrative Code
title 8, 	part 	III, 	section 32300. 	Such 	statement of exceptions
and 	supporting 	brief 	must 	be 	actually 	received 	by 	the 	executive
assistant 	to 	the 	Board 	at 	the 	headquarters 	office of 	the 	Public
Employment 	Relations 	Board 	in 	Sacramento before 	the 	close 	of
business 	(5:00 p.m.) 	on August 12, 	1981, 	in order to be timely-
filed. 	See California Administrative Code, 	title 8, 	part 	III,
section 	32135. 	Any 	statement 	of 	exceptions 	and 	supporting brief
must 	be 	served 	concurrently with 	its 	filing upon 	each party 	to
this 	proceeding. 	Proof of 	service 	shall 	be 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	part III,
sections 	32300 	and 	32305 	as 	amended.
Dated: 	July 23, 	1981
FRED D'ORAZIO
Hearing 	Officer
93

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice 	Case No. 	SF-CE-473, 	in
which 	all 	parties 	had 	the 	right 	to 	participate, 	it 	has 	been
found 	that 	the 	Novato 	Unified 	School 	District 	violated
Government Code 	sections 	3545.5(a) 	and 	(b).
As 	a 	result 	of 	this 	conduct 	we 	have 	been 	ordered 	to 	post
this 	Notice, 	and 	will 	abide 	by 	the 	following. 	We 	will:
1. 	CEASE AND 	DESIST 	FROM:
(a) 	Imposing 	or 	threatening 	to 	impose 	reprisals 	on
George 	de 	Tuncq, 	discriminating 	or 	threatening 	to 	discriminate
against 	George 	de 	Tuncq 	or 	otherwise 	interfering 	with,
restraining, 	or 	coercing 	George 	de 	Tuncq 	because 	of 	the
exercise 	of 	his 	rights 	to 	form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of 	his 	own 	choosing 	for
the 	purpose 	of 	representation 	in 	all 	matters 	of
employer-employee 	relations, 	including 	the 	right 	to 	file
grievances 	and 	otherwise 	serve 	as 	a 	representative 	of 	the
Novato 	Federation 	of 	Teachers, 	by 	discriminatorily 	transferring
George 	de 	Tuncq 	from his 	position 	of 	social 	studies 	teacher 	and
department 	chairperson 	at 	Novato 	High 	School 	to 	the 	position 	of
social 	studies 	teacher 	at 	San 	Jose 	Junior 	High 	School;
(b) 	Denying 	the 	right 	of 	the 	Novato 	Federation 	of
Teachers, 	Local 	1986, 	A F T , 	AFL-CIO 	to represent 	unit members 	by
transferring 	George 	De 	Tuncq 	for 	engaging 	in 	protected 	activity
on 	behalf 	of 	the 	Federation 	and 	members 	of 	the 	negotiating 	unit
it 	represents.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT.
(a) 	Upon 	request, 	immediately 	offer 	to George
de 	Tuncq 	full 	reinstatement 	to his former 	or 	equivalent 	position
at 	NHS, 	including 	chairperson 	of 	the 	department, 	without
prejudice 	to 	his 	seniority 	or 	other 	rights, 	benefits 	and/or
privileges 	enjoyed;
l

(b) 	Make George de Tuncq whole 	for 	any losses 	of pay
and/or 	other 	benefits 	he 	may 	have 	incurred 	as 	a 	result 	of 	the
discriminatory 	transfer. 	Payment on 	such 	losses 	shall 	be 	at
the 	interest 	rate 	of 	seven 	per 	cent 	per 	annum.
Dated: 	NOVATO 	UNIFIED 	SCHOOL 	DISTRICT
By
Authorized 	Agent
THIS 	IS 	AN OFFICIAL 	NOTICE. 	IT MUST 	REMAIN POSTED FOR AT 	LEAST
THIRTY 	(30) 	WORKDAYS 	FROM THE 	DATE 	OF POSTING AND MUST NOT BE
REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
N	2