North Sacramento School District (PERB 0264E)

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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
NORTH 	SACRAMENTO 	EDUCATION
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
NORTH SACRAMENTO SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-381
PERB Decision No. 	264
December 	20, 	1982
Appearances; 	Diane Ross, 	Attorney for North Sacramento
Education Association, CTA/NEA; 	Christian M. Keiner, Attorney
(Biddle, Walters 	and 	Bukey) 	for North Sacramento School
District.
Before Gluck, Chairperson; 	Jaeger 	and Morgenstern, Members.
DECISION
JAEGER, 	Member: 	This case 	is 	before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on exceptions 	filed 	by the
North Sacramento School 	District 	(District) 	to the 	attached
proposed 	decision. 	The District 	excepts 	to 	the 	hearing
officer's finding that 	it violated subsections 	3543.5(a), 	(b)
and 	(c) 	of 	the Educational Employment Relations Act 	(EERA or
Act) 	by 	retaliating 	against Kent 	Gaughenbaugh 	for 	filing 	a
grievance 	pursuant 	to 	a negotiated 	grievance 	procedure. 	The
hearing officer 	dismissed 	a 	further 	allegation 	that 	the
District 	violated 	subsection 	3543.5(d).l
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540

2
The 	Board 	has 	reviewed 	the 	hearing 	officer's 	findings 	of
fact 	and, 	finding 	them 	free 	from 	prejudicial 	error, 	adopts 	them
as 	the 	findings 	of 	the Board 	itself. 	We 	affirm 	the 	hearing
officer's conclusions 	of 	law 	in part 	and 	reverse 	them 	in part
in 	accordance 	with 	the 	discussion 	below.
DISCUSSION
The 	hearing 	officer 	found 	that 	the District 	retaliated
against Kent 	Gaughenbaugh 	because of 	the 	exercise of 	rights
et 	seq. 	All 	references 	are 	to the 	Government Code 	unless
otherwise indicated.
Section 	3543.5 provides 	in relevant 	part:
It shall 	be 	unlawful 	for 	a public school
employer 	to:
(a) 	Impose or 	threaten 	to impose reprisals
on 	employees, 	to discriminate or 	threaten to
discriminate against employees, 	or 	otherwise
to interfere with, restrain, or 	coerce
employees 	because of 	their 	exercise of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
(d) 	Dominate or 	interfere with the
formation or 	administration 	of 	any 	employee
organization, or 	contribute financial or
other 	support 	to 	it, 	or 	in 	any way encourage
employees 	to join any organization 	in
preference to 	another.
The 	dismissal 	of 	that 	portion of 	the 	charge 	alleging a
violation of 	subsection 3543.5 (d) 	was 	not excepted to 	by the
North 	Sacramento Education Association, 	CTA/NEA 	(Association)
and 	is 	thus 	not 	before 	the Board.
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protected 	by 	the Act. 	The District 	excepts 	to 	this 	finding,
arguing 	that 	Gaughenbaugh's 	conduct 	was 	not 	protected 	by 	the
Act 	and 	that, 	even if 	it was 	protected, 	the Association failed
to prove 	that 	the 	District 	retaliated 	against Gaughenbaugh
because 	he 	engaged 	in that 	conduct. 	In addition, 	the District
contends 	that 	the 	hearing 	officer 	misapplied 	relevant 	Board
precedent 	in 	reaching 	his 	conclusion 	that 	it 	violated 	the Act.
Finally, 	the District 	excepts 	to several of 	the 	hearing
officer's 	evidentiary 	rulings.
The 	Protected Nature of 	Gaughenbaugh's Conduct
The District 	contends 	that 	the 	hearing 	officer 	erred 	in
finding 	that 	filing a 	grievance 	pursuant 	to a negotiated
grievance 	procedure 	is 	a 	protected 	activity 	under 	section 	3543
of 	the 	Act.2 It 	argues 	that 	the 	language 	in the 	second
2Section 	3543 provides:
Public school employees shall have the right
to form, 	join, 	and participate in the
activities of employee organizations of
their own choosing for the purpose of
representation on all matters of
employer-employee relations. 	Public school
employees 	shall also have 	the right to
refuse to join or 	participate in the
activities of employee organizations 	and
shall 	have the 	right to represent 	themselves
individually in their 	employment 	relations
with the public school 	employer, except that
once the employees in an appropriate unit
have selected an exclusive representative
and it has 	been recognized pursuant 	to
Section 3544.1 or 	certified pursuant to
Section 3544.7, no employee in that unit may
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paragraph 	of 	section 	3543 	guaranteeing 	employees 	"the 	right 	to
present 	grievances 	. 	. 	. 	and have 	such grievances 	adjusted
. . . " 	should 	be 	treated 	as 	equivalent 	to 	similar 	language 	in
section 	9(a) 	of 	the National Labor 	Relations Act 	(NLRA).3
meet 	and 	negotiate with 	the 	public 	school
employer.
Any 	employee may at 	any 	time 	present
grievances 	to 	his 	employer, 	and 	have such
grievances 	adjusted, without 	the
intervention 	of 	the 	exclusive
representative, 	as 	long as 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
Sections 3548.5, 	3548.6, 	3548.7, and 3548.8
and 	the 	adjustment 	is 	not 	inconsistent 	with
the 	terms of 	a written 	agreement 	then 	in
effect; 	provided 	that 	the 	public school
employer 	shall 	not 	agree 	to a 	resolution of
the 	grievance 	until 	the 	exclusive
representative 	has 	received a 	copy of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been 	given 	the 	opportunity to file 	a
response.
3The 	NLRA 	is codified at 	29 	USC 	section 151 	et 	seq.
Section 	9(a) 	of 	the NLRA states 	in relevant part:
Representatives 	designated 	or 	selected 	for
the 	purposes 	of 	collective 	bargaining 	by 	the
majority of 	the 	employees 	in a 	unit
appropriate for 	such purposes, 	shall 	be the
exclusive 	representatives 	of 	all 	the
employees 	in such 	unit 	for 	the 	purposes 	of
collective 	bargaining 	in respect 	to rates 	of
pay, wages, hours of employment, or other
conditions of employment: 	Provided, 	That
any 	individual 	employee or 	a 	group of
employees 	shall 	have 	the 	right 	at 	any time
to 	present 	grievances 	to 	their 	employer 	and
to have 	such 	grievances 	adjusted, without
the 	intervention 	of 	the 	bargaining
representative, 	as 	long as 	the 	adjustment 	is
not 	inconsistent 	with 	the 	terms 	of 	a

5
Since that section has 	been held by the National Labor
Relations Board 	(NLRB) 	and the 	federal courts 	to create only an
affirmative defense to a refusal 	to 	bargain charge, 	and 	not 	a
protected right 	to present 	grievances 	or 	have 	them 	adjusted,4
the District 	argues 	that 	the 	parallel provision of EERA should
be 	interpreted in a similarly narrow manner. 	While the
District 	concedes 	that 	the NLRB has 	consistently held 	that 	it
is protected conduct 	for 	an 	employee 	to file a grievance
pursuant to a negotiated 	grievance 	procedure, 	it 	argues 	that
that 	right 	is derived from 	the 	"concerted activities" 	language
in section 	7 of the NLRA, which, it maintains, has no
equivalent 	in 	EERA.5
collective-bargaining contract 	or 	agreement
then 	in 	effect: 	Provided further, 	That 	the
bargaining representative 	has 	been given
opportunity to 	be 	present 	at such adjustment.
It 	is 	appropriate 	for 	the 	Board 	to take 	guidance 	from
federal labor 	law 	precedent when applicable to public sector
labor relations 	issues. 	Firefighters Union, Local 1186 v. Cit	--1	y
of Vallejo 	(1974) 	12 Cal.3d 608 	[116 Cal.Rptr. 	507];
Los Angeles Service Commission v. 	Superior Court 	(1978) 	23
Cal.3d 65 	[151 Cal.Rptr. 	547].
4see Black-Clawson Co. v. Machinists 	(1962) 	313 F.2d 179
[52 LRRM 2038]; 	cited with approval 	in Emporium-Capwell v.
Western Addition Community Organization 	(1975) 	420 U.S. 	50 	[88
LRRM 2660].
5Section 7 of the NLRA provides:
Employees 	shall 	have 	the 	right to
self-organization, 	to form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through representatives of 	their own
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The thrust of 	the District's 	argument is misplaced. 	The
first paragraph of 	section 3543 guarantees 	employees 	the 	right
to "form, 	join, 	and participate in the activities 	of 	employee
organizations . . . " 	(Emphasis added.) 	An employee's attempt
to 	assert 	rights 	established by the terms of a negotiated
agreement 	clearly constitutes 	"participation" 	in the 	activities
of an employee organization and i s , 	therefore, expressly
protected by section 3543 of the Act. 	Were this not the case,
an employer 	could freely retaliate against 	employees 	because of
their 	assertion of 	contractual 	rights, 	thereby 	effectively
undermining 	the 	collective negotiation 	process.
Our 	decision in this regard 	is consistent with past Board
decisions 	concerning the 	rights 	of 	employee organizations to
represent employees 	in grievance procedures. 	In Mount Diablo
Unified School District et al 	(12/30/77) 	PERB Decision No. 	44,
the Board held that 	the grievance process 	is an "employment
relation" 	within the meaning of subsection 3543.1 (a) 	and that,
therefore, employee organizations 	have 	a statutory right 	to
represent 	employees 	in the presentation of 	their
choosing, and to engage 	in other 	concerted
activities 	for 	the purpose of 	collective
bargaining or other mutual aid or
protection, 	and shall also have the right to
refrain from any or 	all of 	such activities
except to the extent 	that such right may 	be
affected by an agreement requiring
membership in a labor organization as a
condition of employment 	as 	authorized in
section 8 (a) (3) .
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grievances.6 In 	accord, 	Santa Monica Community College
District 	(9/21/7 9) 	PERB Decision No. 	103; 	Victor Valley Joint
Union High School District 	(12/31/81) 	PERB Decision No. 	192.
As 	the 	hearing 	officer 	pointed out, 	it would 	be 	anomalous 	to
guarantee 	employee 	organizations 	the 	right 	to represent
employees 	in 	the 	grievance 	process 	while 	failing 	to 	guarantee
employees 	the 	concomitant 	right 	to participate 	in 	the 	very same
grievance 	process 	free 	from 	fear 	of 	discrimination or
reprisal.7
Misapplication 	of 	Board 	Precedent
The District 	argues 	that 	the 	record 	fails 	to support 	the
hearing officer's 	conclusion 	that 	it 	unlawfully retaliated
6Subsection 3543.1 (a) 	provides:
Employee organizations shall have the right
to represent their members 	in their
employment relations with public school
employers, except that once an employee
organization is 	recognized or 	certified 	as
the exclusive representative of an
appropriate 	unit pursuant 	to Section 3544.1
or 	3544.7, 	respectively, only that employee
organization may represent that 	unit in
their employment 	relations with the public
school employer. 	Employee organizations may
establish reasonable 	restrictions 	regarding
who may join and may make reasonable
provisions 	for 	the dismissal of 	individuals
from membership.
7since we base our finding that participation in a
negotiated grievance procedure is protected by the language
contained in the first paragraph of section 3543, we need not
address the District's contention that the second paragraph of
section 3543 does not establish such rights.
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against Gaughenbaugh 	because of 	his 	participation in the
negotiated grievance procedure. 	In addition, 	it argues 	that
the 	hearing 	officer 	applied relevant Board 	precedent
incorrectly in resolving the charge before him.
The 	hearing officer 	based his 	determination that the
District 	violated subsection 3543.5(a) 	on the 	test for
resolving unfair 	practice charges enunciated by the Board in
Carlsbad Unified School District 	(1/30/79) 	PERB Decision
No. 8 9. 	in Novato Unified School District 	(4/30/82) 	PERB
Decision No. 210, which was decided subsequent to the hearing
officer's 	proposed decision, 	the Board 	clarified 	the test set
forth in Carlsbad, 	supra. 	Under the Novato test, where an
unfair 	practice charge 	alleges 	that an employer 	discriminated
or retaliated against an employee for participation in
protected activity, 	the charging party has the initial burden
of establishing that the employee's protected conduct was a
motivating factor 	in 	the 	employer's 	decision to 	discipline 	the
employee. 	Since motivation is a state of mind which is often
difficult to prove by direct evidence, a charging party may
establish unlawful motivation by inference 	from the entire
record. Carlsbad, 	supra; accord Republic Aviation Corp. 	(1945)
324 U.S. 793 	[16 LRRM 620]. 	If the charging party makes such a
showing, 	then the 	burden of proof shifts to the employer 	to
demonstrate that 	it would have taken the same action in the
absence of the employee's protected activity. 	(Wright Line, A
Co

Division 	of Wright Line, 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM
1169] .)
Analyzed 	under 	the 	Novato 	test, 	the 	record 	fully 	supports
the 	hearing 	officer's 	determination 	that 	the 	District
retaliated 	against 	Gaughenbaugh 	because 	of 	the 	exercise 	of
rights 	protected by 	the Act. 	Thus, 	the 	evidence 	indicates 	that
although 	Gaughenbaugh 	had 	never 	been 	reprimanded 	by 	Sybil 	Brown
during 	the 	five 	years 	that he 	had 	been 	under 	her 	supervision,
he was 	repeatedly reprimanded 	by her 	in 	the months 	immediately
after 	he 	filed 	his 	grievance. 	These 	reprimands closely
followed 	Brown's 	threat 	that, 	because Gaughenbaugh 	had 	filed 	a
grievance, 	she would 	"never 	give 	[him] 	a good evaluation" 	and
her 	direction 	to Michael Contreras 	that 	he 	"document"
Gaughenbaugh. 	A clear 	inference 	of 	unlawful 	motivation 	is
raised 	when 	an 	employee 	with 	a previously good 	work 	record 	is
repeatedly 	reprimanded 	or 	threatened 	with 	reprisal 	following
his or 	her 	participation 	in protected 	activity. 	NLRB v.
General Warehouse Corp. 	(3rd Cir., 	1981) 	643 F.2d 965 	[106 	LRRM
2799]; Wright Line, 	supra.
In addition, 	the 	evidence 	fully supports 	the 	hearing
officer's 	findings 	that 	Brown 	issued 	these 	reprimands 	to
Gaughenbaugh 	for 	engaging 	in 	conduct 	for 	which 	employees 	had
not 	previously 	been 	disciplined 	and 	that 	she 	failed 	to make 	any
meaningful 	investigation 	before 	imposing 	that 	discipline. 	Both
disparate 	treatment 	of 	employees 	and 	cursory 	investigation 	of
alleged 	misconduct 	prior 	to 	the 	imposition of 	discipline
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have long 	been held to raise 	an inference of 	unlawful
motivation. 	San Joaquin Delta Community College District
(11/30/82) 	PERB Decision No. 	261; Marin Community College
District 	(11/19/80) 	PERB Decision No. 	145; Wright Line, 	supra;
Firestone Textile Company 	(1973) 	203 NLRB 89; Shell Oil Co. v.
NLRB 	(5th Cir., 1942) 	128 F.2d 206 	[10 LRRM 670]. 	Moreover, as
the 	hearing 	officer 	pointed out, 	the District's 	pattern 	of
obstructionist 	conduct 	with 	regard 	to Gaughenbaugh's grievance
evidenced 	an 	intent 	to 	interfere 	with 	his 	contractual 	rights.
Marin, 	supra; Caterpillar Tractor Co. v. 	NLRB 	(9th Cir., 	1981)
638 F.2d 140 	[106 LRRM 2853]. 	In sum, we find that there was
more 	than 	sufficient 	evidence 	to establish 	a 	prima facie
violation of subsection 3543. 5 (a).
In the 	face of 	this 	evidence, 	the District 	failed to prove
that 	it would 	have 	disciplined Gaughenbaugh in the 	absence 	of
his protected activity. 	As 	the 	hearing officer 	found, 	the
D i s t r i c t ' s 	operational 	necessity argument, 	upon 	close 	scrutiny,
simply "evaporates." 	Accordingly, we affirm the 	hearing
officer's 	finding 	of 	a 	violation 	of 	subsection 	3543.5(a) 	and,
derivatively, 	subsection 3543.5(b). 	San Francisco Community
College District 	(10/12/79) 	PERB Decision No. 	105.
Evidentiary 	Exceptions
The 	D i s t r i c t ' s evidentiary exceptions 	are 	two-fold. 	F i r s t ,
it 	contends 	that 	the 	hearing 	officer 	admitted 	evidence
10

concerning an issue not encompassed by the charge and based his
decision, 	in part, on that evidence. 	Second, 	it contends that
the hearing officer erroneously admitted hearsay evidence. 	We
reject 	the District's arguments.
The District argues 	that it was 	erroneous for 	the hearing
officer 	to rely on evidence of 	its 	allegedly obstructionist
conduct in the processing of Gaughenbaugh's grievance when that
portion of 	the Association's original charge alleging
intentional and arbitrary obstruction of 	the grievance process
had been dismissed.
As the hearing officer pointed out, his purpose in using
this evidence was not to determine whether the District's
denial of Gaughenbaugh's grievance constituted an independent
violation of the Act, 	but rather to ascertain whether 	that
conduct evidenced a retaliatory motive towards Gaughenbaugh.
We see no reason why the same conduct may not be relevant to
the resolution of 	independent charges. 	The hearing officer
drew an inference of unlawful motivation from Brown's rejection
of Gaughenbaugh's grievance on the pretextual grounds that he
used an "incorrect form." 	He drew a similar inference from the
District's steadfast 	refusal 	to consider 	Gaughenbaugh's
repeated discussions with Brown as completing the informal step
in the contractual grievance procedure. 	In both instances, the
inferences which the hearing officer 	drew were relevant to the
charge at hand. 	That the same evidence might also have been
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relevant 	to 	a 	charge 	not 	before 	the 	hearing officer 	does 	not
render 	that evidence 	any 	less 	probative 	in 	the 	resolution 	of
the 	charge 	before 	him.
The 	District's 	second 	evidentiary 	exception 	arises 	out 	of
its 	contention 	that 	the 	hearing 	officer 	improperly 	considered
hearsay 	evidence. 	The 	District 	focuses 	on 	two 	statements
relied upon by the hearing officer: 	first, 	a 	statement made by
Sybil 	Brown 	to 	Kent Gaughenbaugh, 	in which 	she 	stated 	that 	she
"would never 	give 	[Gaughenbaugh] 	a good evaluation" 	as 	a result
of his 	filing of a 	formal grievance; 	and second, 	a statement by
Michael 	Contreras 	that Brown had 	ordered him 	to 	"document"
Gaughenbaugh's 	"behavior." 	The 	District 	argues 	that neither 	of
these 	statements 	is 	admissible over 	hearsay objection. 	The
District's 	exception 	is 	unfounded.
Former 	PERB rule 	32176 (a)8 governed 	the 	admissibility 	of
hearsay 	evidence 	in 	unfair 	practice 	hearings 	at 	the 	time 	of 	the
hearing 	in 	this case. 	That rule provided:
Compliance with 	the 	technical 	rules 	of
evidence 	applied 	in 	the 	courts 	shall not be
required. 	Oral 	evidence 	shall 	be 	taken only
on oath 	or 	affirmation. 	Hearsay evidence
may be 	used 	for 	the 	purpose 	of 	supplementing
or 	explaining 	other 	evidence 	but 	shall 	not
be 	sufficient 	in 	itself 	to 	support a 	finding
unless 	it would 	be 	admissible 	over 	objection
8PERB 	regulations 	are 	codified 	at 	title 	8, 	California
Administrative Code, 	section 	31000 	et 	seq.
On September 	20, 	1982, 	subsequent to the hearing in this
case, 	PERB rule 	32176(a) 	was 	replaced by PERB rule 	32176.
12

in civil actions. 	Immaterial, 	irrelevant,
unreliable, 	unduly 	repetitious evidence, 	or
evidence 	of 	little probative 	value may 	be
excluded. 	The 	rules of privilege 	shall
apply. 	Evidence 	of offers 	of 	settlement
shall be 	inadmissible.
Former 	PERB 	rule 	32176(a) 	expressly provided 	that 	hearsay
statements 	were 	admissible 	so long 	as 	they 	were 	not, 	by
themselves, 	the 	basis 	of a 	finding. 	Both of 	these 	statements
were offered 	as 	evidence of Brown's 	unlawful 	animus. 	Since
Brown's 	animus was 	corroborated 	by 	other 	evidence 	of 	unlawful
motivation, 	the 	statements objected 	to 	by 	the District 	were
admissible 	even 	if 	hearsay 	not 	within 	any 	exception.
Subsection 	3543.5(c) 	Violation
The 	hearing 	officer 	found, 	in addition 	to violations 	of
subsections 3543.5(a) 	and 	(b), 	that 	retaliation against an
employee 	for 	participation 	in 	the 	contractual grievance 	process
constituted 	"interference 	in 	the 	day-to-day 	operation of 	a
collective 	agreement," 	and 	was 	thus 	also 	a violation of
subsection 3543.5(c). 	We disagree. 	There was 	insufficient
evidence 	to 	establish 	that 	this 	isolated 	act 	of 	retaliation
against 	an 	individual 	employee 	constituted 	an 	unlawful
unilateral change 	in 	established 	policy 	or 	a 	repudiation of
contractual obligations. 	Grant Joint 	Union High School
District 	(2/26/82) 	PERB Decision No. 	196. 	Accordingly, 	we
reverse 	that portion of 	the 	hearing 	officer's 	proposed 	decision
finding 	a violation of 	subsection 3543.5(c).
13

ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	it 	is 	hereby 	ORDERED 	that
the North 	Sacramento 	School District, 	its 	governing 	board 	and
its 	representatives 	shall:
1. 	CEASE AND 	DESIST 	FROM:
(a) 	Imposing 	or 	threatening 	to 	impose 	reprisals 	on
Kent 	Gaughenbaugh 	for 	filing 	a 	grievance 	under 	a 	collective
bargaining 	agreement 	negotiated 	by 	the 	Association 	and 	the
District.
(b) 	Denying 	the 	right 	of 	North 	Sacramento 	Teachers
Association, 	CTA/NEA, 	to 	represent 	unit members 	by 	retaliating
against 	Kent 	Gaughenbaugh 	for 	filing 	a 	grievance 	under 	a
collective 	bargaining 	agreement 	negotiated 	by 	the 	Association.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT.
(a) 	Immediately 	remove 	and 	destroy 	all 	memos 	sent 	by
District 	representatives 	to 	Kent 	Gaughenbaugh 	referred 	to 	in
the 	attached 	statements 	of 	facts 	from 	Gaughenbaugh's 	official
personnel 	file, 	as 	well 	as 	from 	the 	file 	kept 	on 	Gaughenbaugh
by 	Sybil Brown.
(b) 	Within 	five 	(5) 	workdays 	after 	service 	of 	this
decision, 	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
14

at 	the 	locations 	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.
(c) 	Within twenty 	(2 0) 	workdays from service of 	the
final 	decision herein, 	give 	written 	notification to the
Sacramento 	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 Association's 	charge 	alleging violations
of subsections 3543.5 (c) 	and 	(d) 	is hereby DISMISSED.
Chairperson Gluck 	and Member 	Morgenstern 	joined 	in 	this
Decision.
15

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY ORDER 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the State 	of California
After 	a hearing 	in Unfair 	Practice Case No. 	S-CE-381, 	in
which 	all 	parties 	had the 	right to 	participate, 	it 	has 	been
found 	that 	the 	District 	violated 	the 	Educational 	Employment
Relations Act 	by 	unlawfully reprimanding Kent Gaughenbaugh 	for
participation 	in the 	negotiated 	grievance 	procedure.
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) 	Reprimanding 	employees 	for 	filing 	grievances
pursuant 	to 	the 	negotiated 	grievance 	procedure.
(b) 	Denying 	the 	right 	of 	North Sacramento Teachers
Association, 	CTA/NEA, 	to represent 	unit members 	by reprimanding
employees 	for 	filing 	grievances 	pursuant 	to 	the 	negotiated
grievance 	procedure.
2. 	TAKE 	THE 	FOLLOWING ACTIONS:
(a) 	Immediately remove and destroy all memoranda sent
by District 	representatives 	to Kent Gaughenbaugh 	from his
official personnel file 	and from the file 	kept 	by 	Sybil Brown
relating 	to his 	unlawful 	reprimand.
D a t e d : 	NORTH 	SACRAMENTO SCHOOL 	DISTRICT
By
Authorized Agent
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED FOR AT 	LEAST
THIRTY 	(3 0) 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF POSTING AND
MUST 	NOT 	BE 	REDUCED 	IN 	S I Z E , 	DEFACED, 	ALTERED OR 	COVERED BY ANY
MATERIAL.

)
)
)
)
)
)
)
)
)
)
)
------------- 	)
STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
NORTH 	SACRAMENTO EDUCATION
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
NORTH 	SACRAMENTO SCHOOL 	DISTRICT,
Respondent.
Unfair 	Practice 	Charge
Case No. 	S-CE-381
PROPOSED 	DECISION
(8/24/81)
Appearances; 	Diane Ross, 	for 	charging party North 	Sacramento
Education Association, 	CTA/NEA; 	Christian Reiner, 	for 	respondent
North 	Sacramento 	School 	District.
Before; 	Fred 	D'Orazio, 	Hearing Officer.
PROCEDURAL 	HISTORY
On December 	8f 	1980, 	the North Sacramento Education
Association 	(hereafter Association, 	NSEA or 	Charging 	Party)
filed 	an 	unfair 	practice 	charge 	against 	the 	North 	Sacramento
School District 	(hereafter District or 	Respondent), 	alleging a
violation of section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(hereafter EERA or 	A c t ) . 1 The
substance of 	the 	charge 	is 	that 	the District 	refused 	to
1The 	EERA 	is 	codified 	at 	Government Code 	section 	3540 	et
seq. 	All 	references hereafter 	are 	to 	the Government Code
unless 	otherwise 	noted.

2
participate 	in 	the 	negotiated 	grievance procedure 	and 	that 	such
refusal 	constitutes 	interference with 	rights 	guaranteed 	both
employees 	and 	employee 	organizations 	under 	the EERA.
The District 	filed 	an 	answer 	on December 	23, 	1980 	wherein
it 	denied 	violating 	the Act. 	As 	an affirmative defense, 	the
District 	asserted 	that 	the 	charge 	represents 	only a 	contract
dispute 	over 	which 	the 	Public Employment Relations 	Board
(hereafter 	PERB or Board) 	has 	no jurisdiction.
On December 	30, 	198 0, 	NSEA amended 	the charge 	to 	allege
that 	the District 	had 	also 	retaliated 	against 	a grievant 	for 	use
of 	the 	contractual grievance procedure. 	The 	amendment 	included
the allegation 	that 	section 	3543.5(d) 	had been violated.
On January 8, 	1981 	an 	informal 	conference was held which 	did
not 	resolve 	the 	issues.
The District 	filed 	an 	answer 	denying 	the 	allegations 	in 	the
amended 	charge 	and 	moved 	to dismiss on January 	19, 	1981. 	The
basis 	of 	the motion to dismiss 	was 	two-fold. 	First, 	the
District 	argued 	that 	the 	charge 	involves 	only a 	contract
dispute 	and 	PERB 	has 	no 	jurisdiction 	to 	enforce contracts.
Second, 	the District argued 	that 	the 	charge does 	not 	allege 	a
nexus 	between 	the District's 	action 	and 	a protected 	right. 	The
basis 	for 	the 	second 	argument 	is 	that 	filing a grievance 	is 	not
activity protected 	by 	the Act. 	The Association 	filed 	a written
opposition 	to 	the motion.
2

3
On February 	10, 	1981, 	Hearing Officer Ronald E. 	Blubaugh
granted 	the 	District's 	motion 	to 	dismiss 	as 	to 	that portion 	of
the 	charge 	filed 	on December 	8.2 	The 	motion 	to 	dismiss 	the
December 	30 	amendment 	to 	the 	charge 	was 	denied.
A 	hearing 	was 	conducted 	before 	the 	undersigned 	hearing
officer 	on March 	20, 	1981. 	The briefing 	schedule was 	completed
on June 9, 	1981, 	and 	the case was 	submitted.
FINDINGS 	OF FACT
The 	parties 	stipulated 	that 	at 	all 	relevant 	times NSEA was
the 	exclusive 	representative 	of 	certificated 	employees 	within
the meaning 	of 	the EERA. 	The 	parties 	further 	stipulated 	that
the District 	is 	a public 	school employer 	within 	the meaning of
the EERA.
Kent Gaughenbaugh, 	has 	been 	a teacher 	in the District for
approximately 	six years. 	At 	the 	time of 	the 	incidents 	which 	led
to 	the 	filing 	of 	the 	charge 	Gaughenbaugh was 	working 	at 	the Ben
Ali 	Children's Center 	(hereafter 	Ben Ali 	or 	the Center) 	and 	had
2Hearing 	Officer 	Blubaugh 	dismissed 	the 	charge 	filed 	on
December 	8 	on 	the 	authority of 	Baldwin Park 	Unified 	School
District 	(4/4/79) 	PERB Decision No. 	92. 	Blubaugh held 	that 	the
question of 	whether 	or 	not 	the District followed 	the 	steps 	in
the 	contractual grievance procedure 	only presents 	an 	issue 	of
contractual 	interpretation 	and 	does 	not 	rest 	upon 	an 	independent
violation of EERA. 	The 	decision 	to 	dismiss 	the December 	8
charge 	was 	not 	appealed 	by 	the Charging Party 	and 	is 	not 	at
issue here. 	Thus, 	the only 	issues here 	are whether 	filing a
grievance 	is protected 	under 	the Act 	and, 	if 	so, 	was 	there
retaliation 	for 	exercising 	this 	right.
W

4
been 	for 	several 	years.3 During 	that 	time 	Sybil Brown 	was
the program manager 	at Ben Ali.
On May 	9, 	198 0, 	Sybil Brown 	delivered 	a written 	evaluation
to Gaughenbaugh 	covering his performance 	over 	the 	previous 	two
years. 	Gaughenbaugh, 	who was unhappy with 	the evaluation, 	had
approximately 	one 	week 	to 	comment 	on 	it before 	it 	was 	filed 	in
his 	official personnel 	file. 	On 	the 	same day 	he 	received 	the
evaluation 	he met 	informally 	with Brown 	in 	an 	unsuccessful
attempt 	to 	resolve 	his 	objection. 	After 	a brief discussion, 	he
signed off 	on 	the 	evaluation 	form 	and 	left Brown's office.
Approximately 	one 	hour 	later, 	Gaughenbaugh 	returned 	to 	discuss
the 	evaluation 	in depth. 	He 	complained 	about 	the 	lack 	of
specificity 	and 	the 	inadequate 	amount 	of 	time 	spent 	by Brown
observing his performance. 	During 	the 	course of 	the meeting,
Gaughenbaugh 	asked 	Brown 	how 	she 	could 	substantiate 	his
evaluation. 	She 	said, 	among other 	things, 	that 	that was
"privileged 	information."
Unsatisfied 	with 	the 	results 	of 	his 	meeting 	with Brown,
Gaughenbaugh 	filed a 	formal grievance on May 	15, 	1980, 	in which
he 	alleged 	that 	the 	evaluation 	violated 	the 	collective
3The Center 	is made 	up of 	three programs, 	pre-school,
kindergarten, 	and 	school 	age. 	The 	latter 	is also known as 	the
extended 	day 	program. 	Gaughenbaugh 	teaches 	in 	the 	school 	age
and 	kindergarten programs.

5
bargaining 	agreement between NSEA 	and 	the 	District. 	The
grievance was 	filed 	under 	the 	negotiated 	grievance procedure 	on
a 	form provided 	for 	in 	the 	agreement. 	Gaughenbaugh 	hand
delivered 	the 	formal grievance 	form 	to Brown. 	He 	testified
that, 	upon 	receiving 	the grievance 	form, Brown said:
Well, 	she said, 	she thought it was 	really
unprofessional of me 	to get parent 	letters,
because 	I 	had 	gotten 	about 	18 	parent 	support
letters. 	And 	she 	said 	that 	she 	would 	never
give me 	a 	good 	evaluation 	now.
On May 	16 	Brown 	returned 	the 	grievance 	to Gaughenbaugh 	via
his 	attorney. 	She 	said 	it 	was 	filed 	on 	the wrong 	form and
enclosed 	what 	she 	erroneously claimed 	was 	the 	correct 	form. 	In
comparing 	the 	forms, 	it 	is 	obvious 	that 	they are 	almost
identical. 	However, 	the 	contract 	shows 	that Gaughenbaugh had
used 	the 	correct 	form. 	In 	any 	event, 	Gaughenbaugh 	refiled 	the
grievance 	on 	the 	form 	suggested 	by Brown. 	Brown made 	no claim
at 	this 	level 	that 	the 	grievance 	could 	not 	be processed 	because
Gaughenbaugh did 	not 	exhaust 	the 	informal 	step of 	the 	negotiated
grievance procedure. 	Her 	only 	objection 	was 	that 	he 	used 	the
wrong 	form.
On May 	20, 	198 0, 	the grievance as 	refiled was 	rejected 	at
level one. 	This 	time, 	the grievance was 	rejected because 	the
District 	contended 	Gaughenbaugh 	failed 	to 	meet 	informally 	with
his 	supervisor 	(Brown) 	prior 	to 	filing 	the 	formal grievance.
The 	contract 	between 	NSEA 	and 	the 	District 	requires 	the
employee 	to meet 	informally 	with his/her 	immediate 	supervisor
UT

6
prior 	to 	filing 	a 	formal 	grievance.4 The 	decision 	not 	to
process 	the 	grievance 	was 	appealed 	through 	all of 	the 	remaining
steps 	in 	the 	grievance procedure 	and 	was 	upheld 	at 	each 	level,
the 	final 	denial by 	the District coming on June 	18, 	1980.
The 	disagreement 	about 	the 	proper 	procedure 	for 	processing
a 	grievance 	and 	whether 	Gaughenbaugh 	satisfied 	the 	contractual
requirements 	at 	the 	informal 	level was 	eventually discussed 	at
a board of 	trustees meeting 	on October 	8, 	1980. 	That meeting
will 	be 	discussed 	below.
Meanwhile, 	prior 	to 	the October 8 meeting, 	according 	to
Gaughenbaugh, 	he was 	told by Michael Contreras, 	teacher 	in
charge,5 that Brown 	had 	instructed 	him 	(Contreras) 	to
document Gaughenbaugh 	soon after 	the 	grievance 	was 	filed.
Gaughenbaugh 	described 	the 	conversation 	with 	Contreras 	as
follows:
Well, 	he said basically 	that 	he 	had 	been
asked 	by Sybil 	to document my behavior. 	And
I 	asked 	him, 	well, 	when did this 	start. 	And
4The 	relevant portion 	of 	the 	grievance procedure 	states:
Before 	filing a grievance, 	the employee
shall 	attempt 	to 	resolve 	any complaint by a
conference 	with his/her 	immediate 	supervisor.
5The 	"teacher 	in charge" 	is 	the 	"designee" of 	the
program manager. 	There 	is 	insufficient 	evidence 	in 	the
record 	to 	conclude 	that 	Contreras 	was 	a supervisor. 	The
record does 	show, 	however, 	that he was a 	"leadman" 	and 	in a
"strategic position 	to 	translate 	to 	[his] 	subordinates 	the
policies 	and 	desires of management." 	See Vista Verde 	Farms
v. ALRB 	(1981) 	29 Cal.3d 307, 	318-319 	[ 	Cal.Rptr. 	],
and cases cited 	therein.
6

7
he 	said after 	I 	had 	filed 	the grievance. 	It
may have been the same day 	that I handed the
grievance 	to them. 	He also said 	if 	I was
right 	I 	didn't have 	anything 	to 	worry about.
Prior 	to Gaughenbaugh's filing of 	the grievance he 	had never
received any memos from Brown 	regarding violations of work
rules, 	nor 	had he 	received 	any written 	reprimands from Brown
regarding 	improper behavior 	during 	the 4-5 years she had been
his 	supervisor. 	Soon after 	the grievance was 	finally 	rejected
on June 	18, Gaughenbaugh began to 	receive negative work-related
memos on a regular basis.6 Since these memos form the basis
of 	the Association's 	charge, 	they will be examined 	in detail.
The Sick Leave Memo.
On July 9 and 10, 1980, Gaughenbaugh was absent from work
on sick 	leave.7 On the morning of each 	absence Gaughenbaugh
6Copies 	of all memos to 	teachers from Brown go into the
teacher's Children's Center 	file. 	Copies of 	some, 	but 	not 	a l l ,
of 	these memos 	are 	also 	forwarded 	to 	the District personnel
files. 	Memos 	that are placed 	solely 	in 	the Children's Center
file are 	used 	by Brown 	to 	remind 	her of any previous 	infractions
of 	rules 	when 	evaluating a 	teacher. 	If 	infractions 	have
occurred 	frequently, 	they 	are 	written 	into 	the 	evaluation.
According 	to Brown, 	memos 	in 	the Children's Center 	files 	stay 	in
those 	files 	"quite some time, 	depending on how 	[she] 	want[s] 	to
use 	the 	file." 	Three of 	the 	five memos discussed herein were
forwarded 	to 	Gaughenbaugh's 	District personnel 	file. 	These
were 	the memos 	regarding 	the 	swimming pool incident, 	the memo
regarding 	responsibilities 	of 	the 	closing 	teacher, 	and 	the memo
regarding 	the 	unauthorized absence of 	October 8, 	1980. 	All
memos are discussed below.
7There 	is a conflict in the 	record 	as 	to 	the number of
days Gaughenbaugh was absent. 	He testified that he was absent
three consecutive days. 	Brown's memo to Gaughenbaugh, 	dated
7

8
notified 	the 	staff 	by 	telephone 	that 	he 	would be 	absent 	for 	the
day. 	He 	did 	not 	notify 	the 	Center 	the 	day 	prior 	to 	each 	absence
because 	he did 	not 	know with 	certainty 	that 	he 	would 	be 	sick 	the
following 	day.
On 	returning 	to 	work, 	Gaughenbaugh received 	a memo 	from
Brown 	dated July 	10 	informing him 	that 	if 	staff 	were 	to be
absent for 	several consecutive 	days 	they 	were 	to 	call 	in 	the
previous afternoon 	in 	order 	to give 	the District 	enough 	time 	to
make arrangements 	for 	substitutes. 	Brown 	did 	not discuss 	this
memo 	with 	Gaughenbaugh 	before 	issuing 	it.
The District's 	written policy 	on 	this 	point 	states 	in
relevant part:
Except 	in emergency 	situations, 	prior
approval 	for 	sick 	leave 	shall be 	secured
from 	the 	Child Care 	Manager.
The 	collective 	bargaining 	agreement 	includes 	almost identical
language.
Brown 	recognized 	in her 	testimony, 	as well 	as 	in her memo 	to
Gaughenbaugh, 	that 	it 	is possible 	for 	a 	teacher 	to get 	sick 	the
night before 	an absence and 	not be able 	to 	call 	in 	until 	the
morning of 	the 	absence. 	Brown also 	testified 	that 	she 	had 	never
sent 	a similar memo 	to 	any 	other 	employee 	because 	this 	problem
had 	never 	occurred 	before.
July 	10, 	indicates 	that Gaughenbaugh was 	absent for 	two
consecutive 	days, July 9 	and 	10. 	It 	is 	unnecessary 	to 	resolve
this 	conflict 	to 	decide 	the 	case.

9
Gaughenbaugh 	and 	two other 	teachers 	at Ben 	Ali f 	Rosalee
Faulkner 	and 	Dorothy 	Dillon, 	testified 	that 	there 	have 	been
occasions 	on 	which 	they 	were 	absent 	on 	consecutive 	days 	due 	to
illness, 	but had 	called 	in 	each 	morning, 	rather 	than 	the
previous 	afternoon, 	to 	notify 	the 	school of 	their 	absence. 	The
fact 	that Faulkner 	called 	in 	on 	the 	morning 	of 	such 	an 	absence
was 	recorded 	in 	the 	Center 	log. 	None 	had 	received 	reprimands
for 	their 	behavior 	in 	the 	past.
The 	Swimming 	Pool 	Incident.
On July 	24, 	1980, 	Gaughenbaugh was 	reprimanded 	for 	buying
Cokes 	for 	himself 	and 	two 	children on July 	3, 	1980 	at 	a 	nearby
refreshment 	stand 	while 	supervising 	a 	class 	outing 	to 	a 	swimming
pool. 	The 	reprimand 	was based on 	three grounds. 	It 	stated:
I 	would 	remind 	you 	that 	you 	were 	in 	violation 	of 	three
Center 	rules 	for 	teachers:
1) 	Children 	for 	whom you 	were 	responsible 	were
left 	unsupervised 	when you 	went 	out 	to 	the
chuckwagon.
2) 	Teachers 	are 	expected 	to model 	the 	rules 	set
for 	children.
3) 	Children 	do 	not 	understand 	the 	discrimination
you 	were 	showing 	in providing 	a 	"treat" 	for
just 	two 	of 	some 	30 	children.
A 	copy 	of 	the 	reprimand 	was 	placed 	in 	Gaughenbaugh's 	official
personnel 	file 	by Brown 	without 	discussion 	with 	Gaughenbaugh.
The 	District's 	written policy 	on 	this 	point 	is 	reflected 	in
a May 	24, 	1976 	memo 	from Sybil Brown 	to 	the 	staff. 	It 	states 	in
relevant 	part:

Regarding 	money - 	There 	have 	been 	bulletins
to parents 	in 	the past 	(and we 	shall put 	it
into procedures for 	new 	enrollees) 	that
children should not bring money, 	toys, 	candy
or 	gum 	to 	the Centers 	since 	this 	causes many
problems 	for 	the 	other 	children 	and 	the
staff. 	Tell 	the 	children 	and 	the parents
that we 	have 	lots 	of 	things 	to 	do and 	play
with 	at 	the Center 	and 	that 	it 	is 	hard 	to
share 	one 	thing 	with 	so many 	children 	so 	why
don't 	they keep 	it 	to go home 	to.
Here 	again, 	there 	has 	to be a certain 	amount
of 	flexibility. 	If, 	as a 	team in a room, 	you
agree 	that 	certain 	items 	will 	be 	allowable
under 	certain 	conditions 	- do your 	thing.
Money 	is 	really a 	"no 	no" 	since AFDC
recipients 	are 	not 	supposed 	to pay 	for
anything 	in 	the program and 	all 	the 	children
in 	the program are 	to be 	treated 	alike 	as 	far
as 	rules 	and 	regulations go. 	If 	a 	family
wants 	to do 	something 	special 	for 	the Center,
treats 	for 	everybody 	are 	always welcome.
Each Center 	might 	get 	up a 	list of 	items
parents 	could 	make provided 	we 	supply 	the
materials.
The 	reprimand was prompted 	by a July 11, 	198 0 memo 	to her
from Contreras, 	who 	reported 	that 	negative 	comments 	about 	the
incident were 	subsequently 	made 	by 	students 	during 	a 	class
meeting. 	Gaughenbaugh was 	not given 	an opportunity 	to explain
his 	actions 	before 	the 	reprimand 	was 	issued.
Gaughenbaugh 	did 	not 	learn 	that 	these 	children 	were 	unable
to 	swim until 	he 	arrived 	at 	the pool 	that 	day. 	He 	explained
his 	reasons 	for 	buying 	the Cokes 	to 	the other 	children 	when
they 	got out of 	the pool, 	and 	they 	voiced 	no objections.
In a 	letter 	dated July 	29, 	Gaughenbaugh protested 	the
reprimand 	on 	the 	grounds 	that 	the 	two 	children 	for 	whom he 	had
10

purchased Cokes 	were 	unable 	to 	swim due 	to 	injury 	or 	inability
and 	therefore 	it 	was 	"fair" 	that 	they 	received Cokes 	while 	the
other 	children did 	not. 	In 	the 	letter 	he 	said:
It 	is 	my professional belief 	that 	the purpose
and 	intent of 	field 	trips 	is 	to 	enrich 	the
lives 	and 	experiences 	of our 	students. 	The
benefits 	to 	the 	children must be 	conferred 	in
light of 	the 	totality of 	the 	circumstances.
On 	the 	date 	in question, 	the 	children 	were
taken 	to 	the 	pool 	to 	allow 	them 	to 	enjoy
healthful exercise 	and camaraderie 	in 	a
positive 	environment, 	which 	they 	look 	to with
anticipation. 	On 	this 	occasion 	two of 	the
children, 	either 	through 	injury or 	inability,
were 	not 	able 	to 	engage 	in 	the 	swimming
activity. 	It was 	apparent 	to me 	that 	they
were 	feeling 	neglected 	and 	unhappy 	as 	they
watched 	their 	classmates 	at play. 	I 	felt 	a
responsibility 	to make 	the 	day a 	success 	for
them as well 	as 	the 	others. 	It occurred to
me 	that perhaps 	a 	simple 	gesture of 	support
and 	caring 	would 	let 	them 	take 	home 	from 	the
activities 	the 	same 	feeling 	of 	enjoyment 	as
the other 	children. 	With 	this 	in mind, 	I
bought 	each of 	them a Coke. 	My 	intent 	was
not 	to show 	favoritism, 	but 	to 	fill 	the 	loss
they 	suffered 	in being 	left 	out.
Gaughenbaugh 	further 	stated 	in 	the 	letter 	that, 	given 	the
distance of 	the 	chuckwagon 	from 	the pool 	(approximately 	30 	feet)
and 	the 	number 	of 	teachers 	(approximately 	2 	or 	3) 	and 	lifeguards
(approximately 6) 	present, 	there was 	no problem with 	supervision
of 	the 	swimming 	children. 	Gaughenbaugh's 	response 	did 	not
affect Brown's 	decision 	to 	reprimand.
The evidence showed 	that, 	in the past, 	Gaughenbaugh as well
as 	other 	teachers 	have 	left 	students 	while on 	field 	trips 	to
buy 	soft 	drinks 	for 	themselves 	without being 	reprimanded. 	The
11

• 	• 	• 	• 	•
evidence 	also showed 	that 	while 	on 	field 	trips 	teachers 	bought
children snacks. 	For 	example, 	Gaughenbaugh took children 	to 	"a
little cappicino 	(sic) 	place" 	and bought 	them hot 	chocolate.
He 	testified 	that 	he 	thought 	this 	was 	a 	"good 	educational
experience." 	On 	another 	occasion, 	he bought a 	child 	a
milkshake 	for 	winning 	a pool 	tournament. 	Carole Liming
similarly 	testified 	that 	she 	has 	bought 	children 	snacks 	while
on 	field 	trips. 	She 	said 	she 	never 	heard 	of 	a 	rule prohibiting
this.
The 	Closing 	Incident.
On July 	30, 	198 0, 	the 	day after 	Gaughenbaugh responded 	to
the 	swimming pool 	reprimand, 	Brown 	reprimanded Gaughenbaugh 	for
failing 	to 	fulfill 	his 	responsibility as 	"closing 	teacher" 	by
making 	sure 	all 	children 	had been 	signed 	out before 	he 	left.
One 	child 	remained 	and 	substitute 	teacher 	Carole 	Liming 	saw 	to
it 	that 	he 	was properly 	signed 	out. 	On 	the 	day 	in question 	it
was Gaughenbaugh's responsibility to 	close 	the Center.
The District's 	written procedure 	for 	doing 	so 	states 	in
relevant part:
Closing 	person/s 	should 	be 	contracted 	staff
member/s 	unless 	only 	substitutes 	are
available. 	Closing 	person/s 	should
coordinate 	to make 	sure all 	items 	listed
below 	are 	accomplished.
At 	5:45 	p.m., 	assess 	remaining 	children 	and
determine 	whether 	calls 	need 	to be made 	for
pickup.
12

Sybil Brown 	testified 	that 	it 	has been 	the 	"general practice"
for 	a regular 	staff 	member, 	as 	opposed 	to 	a substitute, 	to
"assume 	the 	responsibility for making 	sure 	that 	everything 	is
okay at 	the 	end of 	the day."
The Center 	is housed 	in an L-shaped 	building. 	The extended
day program 	(where Gaughenbaugh taught) 	was housed in one wing.
The pre-school and kindergarten programs were housed 	in the
other 	wing.
Gaughenbaugh testified 	that on the day 	in question all 	his
extended day children had departed as of 5:50 p.m. 	He stayed
in his classroom until 6:00 	p.m., 	at which 	time he, 	too,
departed because no children had been brought from the other
classrooms 	for 	him to supervise 	until closing. 	The workday at
the Center 	ends 	at 6:00 p.m.
Carole Liming, 	a substitute 	teacher 	in pre-school, 	testified
that 	at 6:00 p.m. 	she 	took a child 	from 	the pre-school 	area 	to
the extended day care 	area.8 Upon arriving 	there, 	she 	found
that Gaughenbaugh had gone, 	and no other 	teachers 	remained, 	so
she stayed with 	the child until the child was picked 	up after
6:00 p.m. 	Liming 	testified 	that 	staying 	late was 	"no 	real
8Although Liming was a substitute, 	she had worked at Ben
Ali 	for 	in excess of one year 	as of 	the 	date of 	the closing
incident.
13

burden" 	to her. 	She 	said, 	"[I]ts a 	responsibility 	that happens
sometimes."
According 	to 	Gaughenbaugh, 	the 	normal closing 	procedure 	was
for 	teachers 	from other 	classrooms 	to bring 	remaining 	students
to 	him as 	of 	5:50 	p.m.9 Some 	days, 	all 	students 	were 	picked
up 	early 	and 	none 	were 	brought 	to him at closing 	time.
Gaughenbaugh 	further 	testified 	that 	he 	was 	never 	told 	to 	check
other classrooms, 	and his practice was 	not 	to do so.
Gaughenbaugh's 	testimony 	about 	the 	closing 	procedure 	was
corroborated 	by Michael Contreras, 	who also said 	that, 	as 	a
closing 	teacher, 	he 	did 	not 	always check 	the 	other 	classrooms
before 	leaving. 	The Center's 	written 	closing procedure 	does
not 	require 	the 	closing 	teacher 	to 	check 	other 	classrooms.
Brown 	testified 	that prior 	to 	reprimanding 	Gaughenbaugh 	she
investigated 	the 	closing 	incident. 	Her 	investigation, 	which
did 	not 	include 	a discussion with Gaughenbaugh, 	revealed 	that
on 	the 	day 	in question 	no 	other 	regular 	teachers 	were 	present
late 	in 	the 	day 	towards closing 	time. 	This 	was 	contradicted 	by
Rosalee Faulkner, 	a regular pre-school teacher, 	who 	testified
that 	on 	the 	day 	in question she 	was 	at Ben Ali 	until 	5:55 	p.m.
After 	the 	incident 	in 	question 	a copy 	of 	the Brown 	reprimand
was placed 	in Gaughenbaugh's 	District personnel 	file 	and 	he 	was
9Liming 	understood 	that 	the 	students 	remaining 	as 	of 	5:45
p.m. 	should be brought 	to Gaughenbaugh.
14

instructed 	to 	check 	the 	other 	classrooms prior 	to 	leaving 	at
6:00 	p.m. 	This 	instruction 	was 	reflected 	in 	a changed Center
closing 	policy.
The District's desire 	to 	have 	a 	regular 	teacher 	close 	the
Center 	stems 	chiefly 	from 	its 	concern 	that 	an 	unauthorized
adult, 	unknown 	to 	a substitute 	teacher, 	may arrive 	to pick up a
child. 	Apparently, 	children may only be picked 	up by adults 	who
are 	listed 	with 	the Center. 	The District presumably 	feels 	that
a 	regular 	teacher, 	as opposed 	to a substitute, 	will be more
familiar 	with 	the 	list 	of 	authorized 	adults 	and 	therefore 	better
able 	to 	identify 	an 	unauthorized 	adult 	in 	the 	event 	this 	should
occur. 	But Contreras 	testified 	that 	even 	regular 	teachers may
be 	unfamiliar 	with 	adults 	who pick 	up children. 	He 	said 	it 	has
been 	necessary 	to 	ask 	for 	identification, 	such 	as 	a drivers
license, 	in 	the 	event 	this 	situation occurs.
The 	Center 	Log 	Entries.
On August 	7, 	198 0, 	Brown 	reprimanded 	Gaughenbaugh 	for 	his
use of 	the Center 	log. 	The 	log 	is 	a 	notebook kept 	in a central
location 	at Ben Ali 	and 	used 	by 	staff 	to 	communicate 	with one
another. 	Two 	notes 	from Gaughenbaugh 	to Brown, 	entered 	in 	the
log 	by Gaughenbaugh 	at 	about 	the 	time 	of 	the 	other 	reprimands,
were 	the subject of 	the 	reprimand. 	The 	first 	note, 	dated July
28, stated:
Now 	that 	the 	CTA 	is 	involved 	with 	my
grievance against you, Mr. Percel, CTA
representative 	has 	advised 	me 	to 	have 	no
15

further 	contact with 	you 	unless 	I 	am
represented 	by a 	union 	arbitrator.
The 	second 	note, 	dated July 	30, 	stated:
I 	would 	like 	to 	inform you 	that 	under 	the
circumstances 	your 	so 	called 	informal
observations 	and 	memos 	are 	considered
harassment by 	the 	union.
Brown 	considered 	these 	entries 	too 	"personal 	and 	confidential"
for 	the 	log.
No 	formal rules 	regarding 	use 	of 	the Center 	log 	existed 	on
the 	dates 	involved 	here. 	Contreras 	testified 	that 	the 	log 	is
"strictly 	used 	for 	center purposes 	only, 	for 	matters concerning
the 	center." 	Contreras 	further 	testified 	that 	it was used 	for
informal 	communication 	among 	the 	staff 	regarding 	the 	operation
of Ben Ali 	and 	that 	in 	the past 	it 	had been used 	for 	items 	such
as 	"thank-you" notes.
The Personal 	Leave 	Incident.
On November 	19, 	198 0, 	Gaughenbaugh received 	a memo 	from Dean
Mansfield, 	District Superintendent, 	informing him 	that his pay
would 	be docked 	for 	an 	unauthorized 	absence 	on October 	8, 	198 0.
The 	facts 	leading 	up 	to 	this 	incident 	are as follows. 	On
October 	1, 	198 0, 	Gaughenbaugh 	asked Contreras 	for 	permission 	to
be 	absent 	for 	one 	hour 	beginning 	at 	5:00 	p.m. 	on October 	8.
Contreras 	indicated 	he 	saw 	no 	problem with 	the 	absence. 	On
October 	8, 	prior 	to 	leaving, 	Gaughenbaugh 	again cleared 	the
absence with Contreras, 	who 	again 	indicated 	that 	he 	saw 	no
problem with 	the 	absence, 	since 	there 	were 	enough 	teachers 	to
16

cover 	the 	remaining 	students. 	Contreras 	testified 	that 	he
assumed 	Gaughenbaugh 	had 	cleared 	the 	absence 	through Brown.
A 	factual dispute 	exists 	as 	to 	the procedure 	for 	approval of
this 	absence. 	Gaughenbaugh 	testified 	that 	an 	informal practice
existed 	whereby 	short 	absences 	were 	cleared 	through 	the 	teacher
in charge 	(Contreras) 	who would 	approve 	or 	deny 	the 	request
based 	on 	whether 	enough 	teachers 	were 	available 	to cover. 	In
the past, 	when Gaughenbaugh 	served 	as 	the 	teacher 	in charge
under Brown's 	supervision, 	he granted 	informal 	time off 	in short
periods 	and 	Brown 	never 	voiced 	opposition 	to 	or 	criticism of 	the
practice. 	Faulkner 	and 	Dillon both 	corroborated 	Gaughenbaugh's
version 	of 	the procedure 	for 	getting 	short periods 	of 	time 	off.
For 	example, 	Faulkner 	was excused 	to go 	to 	another 	school 	to
watch 	her 	daughter 	perform 	in 	a 	talent 	show. 	Faulkner's 	absence
was 	recorded 	in 	the Center 	log. 	Gaughenbaugh was granted 	time
off 	to 	take care 	of 	"car 	trouble."
Contreras 	testified 	that, 	as 	teacher 	in 	charge, 	he 	had 	no
authority 	to 	approve 	short 	absences. 	According 	to Contreras, 	he
determined only 	that 	the 	remaining 	children 	could 	be 	covered 	by
the 	remaining 	teachers, 	and 	he 	never 	approved 	an 	absence 	that
wasn't 	cleared 	by Brown. 	But 	he 	later 	admitted 	to excusing
teachers 	"15 minutes 	or 	so" 	early 	if 	enough teachers 	remained
to supervise 	the 	children.
Gaughenbaugh 	requested 	the 	one 	hour 	off 	so 	he 	could 	attend
a board of 	trustees meeting 	where 	his grievance was 	being
17

discussed by 	the board and Morris Schlessinger, a CTA staff
representative. 	Although the grievance was not an agenda 	item,
arrangements had been made with 	the District by Association
representatives 	to present 	the 	matter 	during 	the 	"oral
communications" portion of 	the meeting. 	The minutes of 	the
meeting 	show that Morris Schlesinger, CTA representative,
addressed 	the board on Gaughenbaugh's grievance.
Gaughenbaugh never 	informed Contreras as to why he wanted
time off. 	Contreras 	never 	asked Gaughenbaugh 	for 	the 	reason he
wanted the time.
ISSUES
1. 	Is 	the 	filing of a grievance 	under 	a collective
bargaining agreement protected 	activity under 	the EERA?
2. 	Did 	the District discriminate 	or 	retaliate 	against Kent
Gaughenbaugh because he exercised a right protected by the EERA?
DISCUSSION AND CONCLUSIONS OF LAW
The 	Grievance 	as 	P r o t e c t e d 	A c t i v i t y .
The 	D i s t r i c t 	advances 	the 	argument 	t h a t 	Gaughenbaugh's 	use
of 	the 	contractual grievance procedure 	is 	not a right protected
by 	the EERA. 	Therefore, 	according 	to the District, 	there can be
no violation of section 3543.5(a). 	In support of 	this position
the District 	interprets 	the Board's 	decision 	in Baldwin Park
Unified School District 	(4/4/79) 	PERB Decision No. 	92, 	as
impliedly holding 	that use of a 	contractual grievance procedure
is 	not a protected 	right. 	This 	argument 	is 	without merit.
18

The Board's 	decision 	in Baldwin Park, 	supra, 	was based on
the 	rationale 	that 	denial of 	a grievance because 	it 	failed 	to
state 	facts 	constituting 	a violation of 	the 	collective
bargaining 	agreement was 	a matter 	of 	contractual
interpretation, 	not 	an 	independent violation of 	the EERA. 	A
completely different 	issue 	is 	presented 	by 	the 	allegation 	that
an 	employer 	has 	retaliated 	against 	an employee 	for 	filing 	a
grievance, 	provided, 	of course, 	that filing a grievance 	is
protected 	by 	the Act.
The 	processing 	of 	a 	grievance 	by 	an 	employee 	organization
on behalf of 	employees 	clearly 	constitutes 	a matter 	of
"employment 	relations" 	within 	the 	meaning 	of 	section
3543.1(a).10 Santa 	Monica 	Community 	College 	District
(9/21/79) 	PERB Decision No. 	103, 	pp. 	14-15, citing Mount Diablo
Unified 	School District, 	Santa Ana Unified 	School District, 	and
Capistrano Unified School District 	(12/30/77) 	PERB Decision
No. 	44. 	It follows 	logically 	that 	an employee's 	right 	to
process 	a grievance 	on his 	own behalf 	or 	in 	concert with 	an
employee 	organization 	falls 	within 	the 	fundamental 	right 	to
. 	. 	. 	participate 	in the activities of
employee 	organizations 	of 	their 	own 	choosing
10Section 	3543.l(a) 	states 	in 	relevant part:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their members 	in 	their
employment 	relations 	with 	public 	school
employers. . . .
19

for 	the 	purpose of 	representation on 	all
matters 	of 	employer-employee 	relations.
Section 	3543.
An argument 	similar 	to 	that 	offered 	by 	the District 	in 	this 	case
was 	adopted 	by 	the 	hearing 	officer 	in Baldwin Park Unified
School District, 	supra. 	The 	hearing 	officer's decision 	in this
respect was 	"expressly set aside" by the 	Board. 	Baldwin Park
Unified School District, 	supra, 	p. 	5.
Additionally, 	adoption 	of 	the District's 	argument would
produce 	the 	anomalous 	result of 	recognizing 	the 	statutory 	right
to negotiate, 	while 	refusing 	to 	recognize 	the 	corresponding
right 	to enforce 	agreements via 	the 	negotiated 	grievance
procedure. 	The 	negotiation 	and 	the 	administration 	of 	a
collective 	bargaining 	agreement, 	including 	the 	filing 	of
grievances, 	go hand 	in hand. 	It 	is well 	settled 	that
[t]he 	duty 	to bargain 	unquestionably 	extends
beyond 	the 	period 	of 	contract 	negotiations
and 	applies 	to 	labor-management 	relations
during 	the 	term of 	an 	agreement. 	NLRB v.
Acme Industrial Co. 	(1967) 	385 U.S. 	432, 	436
[64 LRRM 	2069].11 	See 	also Jefferson
School District 	(6/19/80) 	PERB Decision
No. 	133, pp. 	54-55, 115.
11Comparable 	provisions 	of 	the 	federal Labor 	Management
Relations Act 	(LMRA) 	19 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.
20

Refusal 	to process 	a grievance 	or 	retaliating 	against 	a grievant
. 	. 	. 	inevitably 	impedes 	and discourages 	the
union 	and 	the 	employees 	from exercising 	their
right 	to 	invoke 	the grievance procedure 	and
thus defeats 	the 	very purpose 	of 	the Act 	to
promote 	the 	orderly 	settlement 	of 	labor
disputes. 	American Beef Packers 	(1971) 	193
NLRB 1117, 	1119 	[78 LRRM 1508].
In 	this 	case, 	Gaughenbaugh's 	activity consisted of
processing 	a 	grievance 	under 	the 	collective 	bargaining 	agreement
negotiated 	by 	the Association 	and 	the District. 	Early 	in 	the
procedure, 	Gaughenbaugh processed 	the 	grievance with 	the
assistance of his 	attorney. 	Later 	in 	the procedure, 	he was
represented 	by 	the Association. 	The 	hearing 	officer 	can
conceive 	of 	no 	better 	example 	of 	a 	right 	encompassed 	by 	section
3543.12 It 	remains 	to 	be determined 	if 	the District
retaliated 	against 	Gaughenbaugh 	for 	exercising 	this 	basic 	right.
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.
12This 	right 	is 	the 	same 	as 	that 	afforded 	employees 	under
the National Labor 	Relations Act. 	See, 	Interboro Contractors,
Inc. 	(1966) 	157 NLRB 1295 	[61 LRRM 1537], enf. 	(CA 2 1967) 	388
F.2d 	495 	[67 	LRRM 	2083]; 	NLRB v. 	Selwyn Shoe Manufacturing Corp.
(CA 8 	1970) 	428 F.2d 217 	[74 LRRM 2474]. 	Compare, 	Kohler v.
NLRB 	(D.C. 	Cir. 	1980) 	629 F.2d 173 	[104 LRRM 3049]; 	NLRB v.
Bighorn Beverage 	(CA 9 	1980) 	614 F.2d 	1238 	[103 LRRM 3008].
See also, Morris, The Developing Labor Law, 	Cumulative Supp.,
1971-78, Ch. 5.
21

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,
p. 17.
The 	facts amply demonstrate 	the requisite nexus to protected
activity in the 	instant case. 	Gaughenbaugh had been employed by
the District and 	supervised by Brown for 	approximately 4-5 years
when he 	filed his grievance in May 1980. 	During this entire
period, Gaughenbaugh had never received any negative memos or
reprimands from Brown 	regarding his performance. 	Yet, 	in the
approximately 	six months following 	the 	filing of his grievance,
Gaughenbaugh received 	five negative memos and/or written
reprimands, 	three of which were placed 	in his 	official personnel
file. 	All memos were placed 	in the 	file Brown kept, 	to be used
22

for 	future 	evaluations. 	Four 	of 	the 	five 	reprimands 	were
received 	within 	three 	months 	of 	filing 	the 	grievance 	at Step 	3
of 	the grievance procedure. 	The 	timing of 	the District's
actions 	combined 	with 	the 	fact 	that 	Gaughenbaugh 	had 	never
received 	any 	negative memos 	or 	reprimands prior 	to 	filing 	his
grievance 	establishes 	the 	requisite 	nexus 	between 	the 	exercise
of 	a 	protected 	right 	and 	the 	District's 	actions.13
In 	addition 	to 	constituting 	retaliation 	against 	and
harassment of Gaughenbaugh, 	such 	memos 	have 	the 	natural and
probable 	consequences 	of 	causing 	other 	employees 	reasonably 	to
fear 	that 	similar 	action would 	be 	taken 	against 	them 	if 	they
chose 	to 	file a grievance. 	This cannot help but 	have a 	chilling
effect 	on 	the 	exercise 	of protected 	rights 	under 	the Act 	and
constitutes 	at 	least 	"slight" 	harm 	to 	these 	rights. 	Carlsbad
Unified School District, 	supra, 	p. 	10. 	A prima facie case
having 	been established, 	it was 	incumbent on 	the District 	to
offer 	some 	justification 	for 	its 	acts 	based 	on 	operational
necessity. 	Id.
It 	is 	recognized 	that, 	in an abstract sense, Brown may have
13In 	addition 	to 	establishing 	the 	required 	nexus, 	the
timing of 	the memos 	and 	the 	fact 	that 	Gaughenbaugh 	had 	received
no 	reprimands 	or 	similar memos during 	the 4-5 years he worked
under 	Brown 	are 	themselves 	evidence 	from 	which 	an 	unlawful
motive can be 	inferred. 	NLRB v. 	General Warehouse Corp. 	(CA 3
1981) 	643 F.2d 965 	[106 LRRM 2729, 	2733-34], Wright Line, 	Inc.
(198 0) 	251 NLRB 150 	[105 LRRM 1169, 1175-76].
23

had a legitimate concern for 	the administration of 	the Center
in those specific areas where she cited Gaughenbaugh. 	A school
administrator 	is certainly 	justified 	in establishing 	and
enforcing 	rules 	related 	to 	the daily closing of the Center,
snacks for young children, 	short periods of 	time off from work,
and 	sick leave call-in procedures. 	Although the 	filing of a
grievance did 	not exempt Gaughenbaugh from having 	rule
infractions corrected by his superiors, 	the evidence shows that
there was more at work here than merely the desire of Brown or
Mansfield to correct the so-called 	infractions. 	As the
following discussion 	illustrates, 	the District has 	not shown
that the so-called 	infractions committed by Gaughenbaugh
violated any 	rule or policy. 	Indeed, 	in some 	instances his
conduct was consistent with that of other 	teachers or past
practice. 	Nor 	has 	it been shown that Gaughenbaugh's conduct
presented any 	threat whatsoever 	to the operation of the Center
or 	the well-being of children or 	teachers. 	They were minor 	in
nature and 	in some 	instances they were totally without
substance. 	Each reprimand will now be discussed.
The evidence does not show that Gaughenbaugh violated any
Center policy or 	rule by not calling a day in advance for sick
leave. 	The written 	rule does require that prior 	approval be
secured, 	but it includes an emergency exception. 	Even Brown
conceded that a teacher could not call 	in the day before an
illness if he or she did not know they would be sick 	the next
24

day. 	Thus, 	in order for Gaughenbaugh to be held in violation of
the rule, the District would have to show that he actually knew
on the day prior 	to each absence that he would be sick the
following day. 	The District has failed to show this. 	To the
contrary, 	the uncontroverted testimony of Gaughenbaugh shows
that he did not know in advance that he would be sick on the
days in question. 	He called in the morning of each absence to
report his sickness. 	Furthermore, 	there was scant evidence to
show that the District was understaffed due to Gaughenbaugh's
absences or 	that the absences had any adverse impact on the
District's 	mission.14 Therefore, 	it 	is concluded 	that 	there
was no valid reason for the reprimand.
In addition, 	the evidence shows, contrary to Brown's
testimony, 	that 	there were at least two other prior occasions
where teachers called 	in to request sick leave on the morning
of 	their absences. 	Both occurred during the course of two or
more consecutive days of absence and the employees received no
corrective memo. 	Brown was presumably aware of Faulkner's
calling 	in on the morning of her absence since it was recorded
14The 	only evidence available to show that 	this absence
affected 	the Center's operation was 	the 	unsubstantiated
reference by Brown in her memo to Gaughenbaugh that the Center
staffing on July 10, 	1980 was out of 	ratio. 	But this can't be
attributed to Gaughenbaugh. 	Even under the District's own
procedure, 	there was presumably sufficient 	time after 	he called
in to secure a replacement or make other arrangements to
compensate 	for his 	absence.
25

in 	the Center 	log. 	Issuance of 	the 	corrective memo 	to
Gaughenbaugh 	for 	the 	same 	conduct 	by 	others 	condoned 	in 	the past
is 	evidence of disparate 	treatment 	and 	tends 	to show 	that 	an
underlying 	unlawful motive prompted 	the 	memo. 	See NLRB v.
General Warehouse Corp., supra, 	106 LRRM 2729, 	2334; 	Marin
Community College District 	(11/19/80) 	PERB Decision No. 	145,
pp. 	12-13.
Last, 	Brown 	issued 	this memo with 	no 	investigation 	or
discussion with Gaughenbaugh 	as 	to 	whether 	he 	knew of 	his
sickness 	in 	advance 	of 	the 	days 	in question. 	A discussion with
Gaughenbaugh 	would 	obviously 	have 	established 	that 	he 	did 	not
know on 	the preceding days 	that 	he would 	be 	sick 	on 	the 	days 	in
question. 	Thus, 	Brown would have 	learned 	that he was 	not 	in
violation 	of 	the policy. 	Her 	failure 	to make any 	attempt 	to
investigate 	the 	facts 	surrounding 	this 	incident 	to discover
Gaughenbaugh's 	explanation 	suggests 	that 	she 	was more 	concerned
with 	issuing 	the memo 	than 	following 	the 	rule. 	This 	casts 	doubt
on 	her 	reason 	for 	issuing 	the 	memo. 	TAMA Meat Packing 	Corp.
(1977) 	120 NLRB 116 	[96 LRRM 1148], mod. 	(CA 8 1978) 	575 F.2d
661 	[98 	LRRM 	2339].
Much 	of 	the 	same 	can be 	said 	about 	the 	reprimand 	issued
after 	Gaughenbaugh 	bought Cokes 	for 	two 	children 	at 	the 	swimming
pool. 	Initially, 	it must 	be observed 	that 	the written policy
with 	respect 	to prohibiting 	children 	from bringing 	money, 	toys,
candy, 	etc. 	to 	the Center, 	does 	not 	expressly prohibit 	teachers
26

from purchasing 	treats 	for 	children. 	The 	rule 	only prohibits
children 	from bringing 	their 	own 	treats 	or 	money. 	Moreover, 	the
rule affords 	teachers 	a 	"certain amount of 	flexibility" 	to 	allow
deviations 	from 	the 	general 	rule. 	The 	rule 	tells 	teachers 	to
"do your 	thing" 	under 	certain circumstances 	determined 	by 	the
teacher.
Thus, 	given 	the 	express 	language 	in 	the 	rule and 	the
flexibility afforded 	teachers 	in 	this 	area, 	coupled with
Gaughenbaugh's 	explanation 	as 	to 	why 	he purchased 	the Cokes
presented 	in his July 	29 letter 	to Brown, 	(see pp. 	10-11,
supra), 	no 	reasonable person 	could conclude 	that Gaughenbaugh
abused his discretion 	in buying 	the Cokes. 	Accordingly, 	it 	is
concluded 	that 	Gaughenbaugh 	did 	not violate 	either 	the 	letter
or 	the spirit of 	the 	rule.
Additionally, 	the 	evidence 	shows 	that 	the 	children 	were 	not
left 	unsupervised 	when Gaughenbaugh 	went 	to buy 	the Cokes. 	The
refreshment 	stand 	was 	nearby 	and 	there 	were 	adequate 	teachers
and 	lifeguards present 	to 	deal with 	any emergency 	which 	may 	have
come 	up during his 	short 	absence. 	Thus, 	the District's mission
was 	in 	no way 	jeopardized. 	All of 	these points 	would 	have been
easily discovered 	by Brown 	had 	she 	made 	any 	attempt 	to
investigate 	this 	incident, 	and 	there 	would 	therefore 	have been
no 	need 	to 	issue 	the 	reprimand. 	Instead, 	she 	accepted 	the
comments of 	children, 	transmitted 	to her 	by Contreras 	in 	the
form of 	a complaint, 	as 	the 	sole basis 	for 	the 	reprimand. 	Once
27

again, 	her 	failure 	to more 	thoroughly 	investigate 	this matter
casts 	doubt 	on 	her 	stated 	concern 	for 	following 	the 	rules 	cited
in 	her memo 	and 	suggests 	that 	she was 	more 	concerned with
reprimanding 	Gaughenbaugh 	than 	she 	was 	with 	the 	proper
enforcement of 	the 	rule. 	TAMA Meat Packing Corp., 	supra.
Furthermore, 	it 	was 	established 	that 	teachers did 	not 	always
model 	the 	rule 	set 	for 	children. 	There 	have been 	incidents 	in
the past where 	teachers, 	including Contreras, 	the 	teacher 	in
charge, 	left 	their 	posts 	to 	purchase 	drinks 	for 	themselves.15
And 	it 	was 	also 	established 	that 	teachers 	had purchased 	snacks
for 	students 	while on 	field 	trips 	in 	the past. 	For 	example,
some 	children were 	taken 	to a 	"little cappucino" place, 	while
another 	received 	a milkshake 	for 	winning 	a pool 	tournament. 	In
these circumstances, 	as 	in the pool 	incident, 	the purchase of
the 	snacks 	seems 	a perfectly 	reasonable 	exercise 	of 	the
discretion 	provided 	the 	teacher 	by 	the 	rule.16 Thus, 	the
15Regarding 	the teacher's responsibility to model rules
set for 	children, Brown was asked 	if she saw a difference
between a teacher buying a treat for 	a child as opposed to a
teacher buying a 	treat for himself or 	another 	teacher. 	She
responded that 	"maybe a cold drink, 	something of that sort"
would be acceptable, but, 	in her view, 	it would not be
acceptable "to go and buy a candy bar and sit there and eat it
in front of a bunch of 	l i t t l e children." 	This unpersuasive
explanation suggests that there was no firm rule which required
teachers 	to model 	the 	rules established for 	children, 	thus
casting doubt on that part of the reprimand which 	is based on
an infraction of such a rule.
16Brown 	objected to buying snacks for 	some children and
28

practice 	that emerges 	is 	one 	which 	accepts 	such conduct 	as
falling 	within 	the 	discretionary 	authority 	and 	flexibility 	left
to 	teachers 	to 	"do your 	thing" 	when circumstances permit.
Therefore, 	it 	is 	concluded 	that 	no 	rule 	has 	been 	violated 	and
there was 	no valid 	reason 	for 	the 	reprimand. 	To 	the 	contrary,
snacks had 	been 	bought 	for 	children 	in 	the 	past 	by 	teachers
without 	drawing 	a 	reprimand. 	A 	reprimand 	given 	for 	conduct
previously condoned 	is 	indicative 	of 	an 	unlawful motive. 	NLRB
v. General Warehouse Corp., 	supra, 	106 LRRM 2729, 	2334, V & V
Castings 	(1977) 	231 NLRB 912 	[96 LRRM 1121] 	enf. 	(CA 9 	1978)
587 	F.2d 	1005, 	[100 	LRRM 2303].
Similarly, 	the 	evidence 	shows 	that 	Gaughenbaugh violated 	no
Center 	rule 	or policy as closing 	teacher on July 	29, 	1980. 	The
practice 	had 	been 	that 	remaining 	children 	were 	brought 	to 	the
closing 	teacher 	by either 	5:45 p.m. 	or 	5:50 	p.m., 	and 	the
closing 	teacher 	would 	take 	the 	necessary 	steps 	to 	contact 	the
responsible 	adult 	for pickup. 	There was 	no 	requirement, 	written
or 	otherwise, 	for 	the 	closing 	teacher 	to 	seek 	out 	remaining
not 	others 	because 	it was 	a 	form of discrimination. 	According
to Brown, 	the Center 	is 	federally 	funded 	and 	under 	an obligation
not 	to 	discriminate. 	She 	said 	that, 	"If 	the Feds who supply
the 	money 	for 	the 	center 	knew 	that 	two 	children 	had 	received
something 	that 	the 	rest 	hadn't on 	that 	day, 	that could 	be a
discrimination 	charge." 	Aside 	from 	the 	fact 	that 	there 	is 	no
evidence 	that 	Gaughenbaugh 	used 	federal 	money 	to 	buy 	the Cokes,
this 	explanation 	strikes 	the 	hearing 	officer 	as 	an 	exaggerated
fear 	of 	an 	unlikely 	eventuality. 	Using 	contrived 	or 	exaggerated
reasons 	to support 	the 	reprimand 	casts 	doubt 	on her 	explanation.
29

students 	in other 	parts of 	the Center before 	departing 	at
6:00 	p.m. 	Gaughenbaugh 	testified 	that 	he 	never 	checked 	other
parts of 	the Center before closing. 	Even Contreras, 	the
teacher 	in 	charge, 	testified 	that 	it was 	not his practice as a
closing 	teacher 	to 	check 	for 	children.
Further, 	on the day 	in question, 	Gaughenbaugh departed 	at
6:00 	p.m., 	all of 	his 	students 	having 	left 	by 	5:50 	p.m. 	Liming
brought 	a remaining 	student 	to Gaughenbaugh 	at 6:00 	p.m., 	but
found 	that 	he 	had 	gone 	and 	no other 	regular 	teachers 	remained.
Apparently, 	Liming 	and 	Gaughenbaugh 	just missed 	each 	other 	at
that hour. 	Nevertheless, 	Liming proceeded 	to 	take 	the
necessary 	steps 	to 	have 	the 	child picked 	up. 	She did 	so
without 	incident.
These 	undisputed 	facts, 	coupled 	with 	the 	absence 	of 	a
requirement 	that 	the 	closing 	teacher 	either 	seek 	out 	remaining
students 	or 	stay past 	6:00 	p.m., 	further 	support 	the 	conclusion
that Gaughenbaugh did 	not violate 	any Center 	rule 	or 	policy.
If anything, 	Liming may have 	been 	at 	fault 	for 	not bringing 	the
remaining 	student 	to Gaughenbaugh 	by 	5:50 	p.m., 	as 	expected 	and
as provided 	for 	in 	the written 	policy. 	But 	it would 	be
senseless 	to point 	the 	finger 	at Liming 	for 	violating 	a Center
closing 	policy 	when 	that 	very policy 	contemplates 	occasions 	when
a substitute must 	serve 	as 	the closing 	teacher. 	The policy
states 	that 	the 	closing 	teacher 	should 	be 	a 	regular 	contracted
staff 	member 	"unless 	only 	substitutes 	are 	available." 	In 	this
case, 	through no 	serious transgression on anyone's part, 	only a
30

substitute 	was 	available. 	She 	handled 	the 	closing 	without
incident and 	viewed 	it 	as 	"no 	real burden."
Moreover, 	the District's 	chief 	concern was 	not 	that 	the
closing 	teacher 	did 	not 	stay 	with 	the 	child, 	but 	that 	a
substitute 	rather 	than 	a 	regular 	contract 	teacher 	was 	left with
the 	child. 	The District's 	justified 	concern 	was 	that 	the 	child
might be 	released 	to 	the wrong person. 	But 	this 	concern was
grossly 	overstated 	as 	applied 	in 	this 	case. 	If 	the person who
comes 	for 	the 	child 	is 	not 	the parent 	or 	other 	authorized 	adult,
a regular 	teacher 	has 	no more 	advantage 	over 	a substitute 	in
safeguarding 	the 	child. 	A 	regular 	teacher, 	like 	a substitute,
might 	not be 	familiar 	with 	all persons 	on 	the 	list 	of people
authorized 	to pick 	up 	the 	child. 	Both 	are 	left 	to 	the 	same
devices 	- a 	check 	on 	the 	emergency 	cardl7 	and 	a request 	for
identification. 	Even Contreras, 	a 	regular 	teacher 	who 	has
served 	as 	a closing 	teacher, 	testified 	that 	he was 	not 	familiar
with all parents 	or 	guardians 	and 	might 	have 	to ask 	for
identification 	under 	some 	circumstances. 	And, 	although Liming
was 	a substitute, 	she 	had worked 	at 	the Center 	far 	in excess of
one 	year 	at 	the 	time 	of 	the 	incident. 	Thus 	she presumably had
some 	familiarity 	with 	the 	individuals 	authorized 	to pick 	up
children. 	In addition, 	this 	was 	not 	the 	first 	time a
- 7
•'•'Adults 	authorized 	to pick 	up 	children 	are 	apparently
listed on emergency cards 	at 	the Center.
31

substitute has been 	the only 	teacher 	available at closing
time.18
Based on the 	foregoing, 	it 	is concluded that 	there was no
real 	danger 	to the child or 	the District's overall mission.
Liming, 	although a substitute 	teacher, 	stayed with the child at
all 	times and closed 	the Center without incident. 	Thus,
Gaughenbaugh was 	reprimanded 	for 	following an established
practice. 	This 	is evidence of an unlawful motive. 	NLRB v.
General Warehouse Corp., supra; V & V Castings, supra.
As 	to the next reprimand, a close examination of the record
shows that 	the District's decision to dock Gaughenbaugh one
hour of pay when he attended the school board meeting was
inappropriate. 	Although the District attempted 	to 	establish 	at
the hearing 	that Contreras had no authority 	to authorize the
short absence on October 8, 	the evidence clearly shows that the
well-established practice was otherwise. 	Gaughenbaugh and
Faulkner 	testified 	that 	in the past 	the teacher 	in charge has
approved short absences, provided, 	as here, 	enough teachers
remained to supervise the 	children.19 For 	example, Faulkner
18Brown 	testified 	that 	she 	investigated 	the 	incident
before 	issuing 	the reprimand and concluded that there was no
regular 	teacher present late 	in the day 	toward closing 	time.
However, Faulkner, 	a regular 	teacher 	in the pre-school was
present in the pre-school until 5:55 p.m. 	This casts serious
doubt on the amount of effort Brown put into the 	investigation
before 	issuing 	the 	reprimand.
19Contreras 	also confirmed 	the 	existence of this practice,
32

was 	excused 	to 	watch 	her 	daughter 	perform 	in 	a 	talent 	show 	and
Gaughenbaugh was 	excused 	to 	take 	care 	of 	car 	trouble.
Significantly, 	Gaughenbaugh 	convincingly 	testified 	that 	he
approved 	such 	requests 	while 	acting 	as 	teacher 	in 	charge 	under
Brown's 	supervision 	and 	she 	never 	objected. 	Presumably, 	Brown
was 	aware 	of Gaughenbaugh's conduct 	in 	this 	regard, 	since 	she
testified 	that 	it 	is her practice 	to move 	about 	the Center,
observing 	the 	operation 	and 	establishing 	considerable 	contact
with 	the 	staff.
Additionally, 	at 	the 	hearing 	the District 	elicited 	testimony
regarding 	the procedures for 	requesting 	the 	various 	types 	of
leave 	set 	forth 	in 	the 	contract, 	including 	which 	management
official 	had 	the 	authority 	to 	approve a 	leave 	request. 	These
various 	types 	of 	leave 	included 	sick 	leave, 	vacation 	leave,
personal necessity 	leave, 	etc. 	The 	hearing 	officer 	finds 	this
evidence to be 	irrelevant. 	The 	record 	shows 	that, 	in 	addition
although to 	a somewhat 	lesser 	degree. 	He 	testified 	that 	he 	had
no 	authority 	to 	approve 	absences; 	his 	authority extended only
to 	determining 	that 	the 	Center 	would 	be 	adequately 	staffed 	in
the 	event of 	an 	absence. 	But Contreras 	also 	testified 	that he
permitted 	teachers 	to 	leave work 	"15 minutes 	or 	so" 	early,
provided 	staffing 	was 	adequate. 	This 	testimony 	suggests 	at
least 	a 	limited 	authority 	on 	his 	part 	to 	approve 	short 	absences
at 	the 	end of 	the 	day, 	the 	time of Gaughenbaugh's 	absence.
Moreover, 	Contreras 	testified 	that 	there 	were 	enough 	teachers
remaining on October 	8 	to cover 	the 	remaining 	children. 	Thus,
the 	use 	of 	the 	leave presented 	no 	problem with 	respect 	to 	the
District 	conducting 	its 	operation 	in 	the Center.
33

to 	the procedures for 	requesting and 	receiving 	these
traditional types 	of leave, 	there 	existed 	a completely separate
established practice whereby employees 	were permitted short
absences by the teacher 	in charge. 	It was for 	taking one hour
off 	under 	this 	latter practice 	that Gaughenbaugh was
reprimanded 	and docked one hour of pay. 	The finding 	that this
separate procedure existed 	is supported by 	the 	fact 	that, 	soon
after Gaughenbaugh was docked one hour's pay, 	the District took
steps 	to change the procedures governing 	the requesting and
granting of the various kinds of leave. 	Thus, 	the 	informal
procedure 	referred 	to above 	is 	no longer 	in existence and the
teacher-in-charge no longer approves short absences.
Based on 	the 	foregoing, 	it 	is concluded 	that Gaughenbaugh's
short absence, 	cleared 	through Contreras, 	was consistent with
past practice. 	Disciplining employees for 	conduct 	accepted 	in
the past is evidence of an unlawful motive. 	NLRB v. 	General
Warehouse Corp., supra, 106 LRRM 2729, 2334; V & V Castings,
supra, 100 LRRM 2303, 2305.
Finally, 	the purpose 	for 	which Gaughenbaugh used the time
cannot be overlooked. 	It 	is undisputed 	that he attended a
board of trustees meeting 	where 	an Association 	representative
discussed certain aspects of his grievance with the board. 	The
discussion had been arranged with District representatives by
the Association's president for 	the very purpose of discussing
the grievance. 	Section 3543.l(c) 	provides:
34

A 	reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the
right 	to 	receive 	reasonable periods of
released 	time without 	loss 	of 	compensation
when meeting 	and 	negotiating 	and 	for 	the
processing 	of 	grievances.
The October 	8 	meeting clearly 	falls 	within 	the meaning 	of 	the
phrase 	"processing 	of grievances," 	thus 	entitling 	the 	employee
representative 	to 	released 	time, 	even 	if 	it 	is 	not considered a
formal part 	of 	the 	grievance procedure. 	It 	follows 	logically
that 	the 	employee being 	represented 	is 	likewise 	entitled 	to 	a
reasonable amount of 	released 	time. 	Also, 	the meeting
unquestionably 	involved 	representation 	of 	Gaughenbaugh 	by 	his
chosen 	representative 	on 	an 	employment-related 	matter, 	and 	the
District was 	aware of 	this 	at 	the 	time 	it 	docked Gaughenbaugh's
pay. 	Under 	such 	circumstances, 	the Association 	had 	a right 	to
represent Gaughenbaugh 	(section 	3543.l(a)) 	and Gaughenbaugh 	had
the 	concomitant right 	to be 	represented 	(section 3543).
Penalizing 	an employee 	for 	the 	exercise of 	such rights 	evidences
hostility on 	the 	part 	of 	the District 	for 	Gaughenbaugh's
engaging 	in protected 	activity.
The 	final matter 	at 	issue 	here, 	Brown's 	negative memo
regarding Gaughenbaugh's use of 	the Center 	log, 	a means 	of
communication 	not 	unlike 	a 	bulletin board, 	represents 	yet
another 	example of 	harassment 	and 	retaliation. 	Gaughenbaugh's
entries violated 	no Center 	rule 	or 	policy. 	In 	fact, 	none
35

existed. 	The entries 	were certainly consistent with the
established practice, 	testified 	to by Contreras, 	that permitted
entries on practically any subject 	related 	to the Center.
Moreover, there was no showing that the language used or message
conveyed demonstrated disloyalty or 	intemperate attitude 	toward
the employer. 	Brown arbitrarily changed 	the established
practice 	in mid-stream 	to bar specific entries 	related 	to
employer-employee 	relations, 	describing 	them as 	"too personal
or 	confidential."
Granted, 	the memo concerned a seemingly trivial matter.
And, 	standing alone, 	it may well have been harmless. 	However,
when considered 	in conjunction with the other memos and
reprimands, 	it 	represents yet another 	component in an overall
pattern of harassment and 	retaliation.
In addition to the memos and reprimands 	issued by Brown,
the record contains other evidence which points 	to an unlawful
motive. 	An employee's work record may be considered as a factor
in weighing 	the validity of the District's 	reasons for 	the
memos. 	The Huntington Hospital (1977) 229 NLRB 253 [95 LRRM
1062]. 	This series of memos 	is 	inconsistent with the treatment
one would expect of an employee with a good work 	record, absent
an unlawful motive. 	Marin Community College District, 	supra,
p. 17.
It 	is also 	found 	that Brown directed Contreras 	to document
36

Gaughenbaugh 	soon 	after 	the 	grievance 	was 	filed.20 This
suggests 	a predetermined plan 	to discover 	a 	reason 	to discipline
Gaughenbaugh. 	See Wright Line, 	Inc., 	supra, 	105 LRRM 1169,
1176.
Brown 	also 	displayed 	an 	open 	hostility 	toward 	Gaughenbaugh
during 	the 	grievance procedure. 	When Gaughenbaugh 	first
presented 	the 	grievance, 	Brown 	told 	him 	that 	"she would 	never
give 	[him] 	a good 	evaluation 	now." 	This 	statement, 	in essence,
announces 	an 	intent 	to 	discriminate 	against 	Gaughenbaugh 	in
20Gaughenbaugh 	testified 	he 	had 	been 	told 	by Contreras
that, 	shortly after 	the grievance was 	filed, Brown directed him
(Contreras) 	to 	document Gaughenbaugh. 	The 	charging party
offered 	this 	testimony 	to 	show 	its 	effect 	on 	the 	recipient.
Counsel 	for 	the 	District did 	not 	object 	to 	the 	testimony 	being
offered 	for 	this 	purpose. 	He objected only 	to 	the 	testimony
being 	offered 	for 	the 	truth of 	the 	matter 	stated. 	It 	is 	noted
that Contreras did 	document Gaughenbaugh on 	the pool 	incident,
thus demonstrating 	at 	least 	one 	example where Brown's 	statement
affected Contreras. 	Moreover, 	even 	if 	the 	testimony had been
offered 	for 	the 	truth 	of 	the 	matter 	stated 	it 	is 	nevertheless
admissible 	as 	an admission of 	a party 	to 	the 	action. 	Calif.
Evid. Code, sec. 	1220; Jefferson, California Evidence Benchbook
(1972), 	sec. 	3.3, p. 	59; 	Santa Clara Unified School District
(9/26/79) PERB Decision No. 	104, pp. 	15-16, fn. 8. 	Thus, this
testimony 	was properly 	admitted 	into 	evidence 	and 	may be 	used
to 	support 	a finding 	that Brown 	told Contreras 	to 	document
Gaughenbaugh. 	PERB's 	rules 	specifically provide 	that 	hearsay
evidence may 	be 	sufficient 	in 	itself 	to 	support 	a 	finding 	if
"it 	would be 	admissible 	over 	objection 	in civil 	actions." 	Cal.
Admin. Code, tit. 8, sec. 	32176(a). 	Additionally, both
Contreras 	and Brown 	testified 	at 	the 	hearing 	but 	did 	not
contradict 	Gaughenbaugh's 	testimony 	on 	this 	point. 	Under 	these
circumstances, 	the 	hearing officer 	accepts 	the 	uncontradicted
testimony 	of Gaughenbaugh. 	Such 	testimony may 	be 	accepted 	to
support a 	finding 	where, 	as here, 	it 	is consistent with 	the
overall 	pattern 	of 	harassment 	and 	retaliation. 	Martori
Brothers Distributors v. 	ALRB 	(1981) 	Cal.3d 	[
Cal.Rptr. 	] •
37

future 	terms 	and 	conditions 	of employment because 	he 	filed 	a
grievance. 	This clearly violates 	the Act, 	as 	it cannot help but
have a 	chilling 	effect 	on 	the 	exercise of 	future protected
activity.
Further, 	as counsel 	for 	the 	charging 	party 	states 	in 	her
brief, 	the District's 	approach 	to 	the grievance can 	accurately
be 	described 	as 	"obstructionist." 	Under 	the plain meaning 	of
the 	relevant contractual clause 	(see 	footnote 4, 	supra) ,
Gaughenbaugh needed 	only 	to 	"attempt" 	to 	resolve 	the 	complaint
with Brown via a 	conference 	in 	order 	to 	comply with 	the
negotiated 	grievance 	procedure.21 He 	satisfied 	this
21In considering 	this 	contractual 	clause, 	the 	hearing
officer 	recognizes 	that 	under 	section 	3541.5(b) 	PERB 	is
prohibited 	from 	enforcing 	negotiated 	agreements 	unless 	the
facts 	alleged 	constitute an 	independent violation of 	the 	EERA.
Baldwin Park Unified 	School 	District, 	supra, 	PERB Decision
No. 	92. 	Hearing Officer Blubaugh 	stated 	in 	the earlier
unappealed 	dismissal 	that 	the 	procedural 	dispute 	surrounding 	the
processing 	of 	the grievance 	did 	not 	constitute 	an 	independent
violation 	of 	the Act. 	It was 	for 	this 	reason 	that 	the 	charge
as 	originally 	filed was dismissed. 	The Board may, 	however,
interpret collective 	bargaining 	agreements 	to 	the 	extent 	it 	is
necessary 	to 	decide 	unfair practice 	charges. 	NLRB 	v. 	C 	and C
Plywood Corp. 	(1967) 	385 U.S. 	421 	[64 LRRM 2065]; 	NLRB v.
Strong 	(1969) 	393 U.S. 	357 	[70 LRRM 2100]. 	In this case 	it 	is
appropriate 	for 	the 	hearing 	officer 	to 	interpret 	this 	clause
for 	the 	purpose of 	shedding 	light 	on 	the 	retaliation allegation
in 	the 	amended 	charge, 	not 	for 	the purpose 	of enforcing 	the
agreement 	or 	determining 	if 	the District's 	conduct 	in processing
the 	grievance 	constituted 	an 	independent violation 	of 	the Act.
The 	District's 	conduct 	in processing 	the 	grievance may 	be
evidence of an unlawful motive. 	In order 	to 	determine 	if
Gaughenbaugh 	suffered 	retaliation 	for 	filing 	the 	grievance, 	the
hearing 	officer 	in 	this 	proceeding 	is 	obligated 	to 	"consider
facts 	and 	incidents 	compositely 	and 	draw 	inferences 	reasonably
justified 	therefrom." 	See 	Santa Clara 	Unified 	School 	District
(9/26/79) 	PERB Decision No. 	104, pp. 	14-15.
38

requirement 	by meeting 	twice with Brown on May 9. 	The 	fact 	that
the 	complaint 	was 	not 	resolved 	or 	that Brown 	was 	dissatisfied
with 	the meetings 	does 	not 	translate 	into 	the 	conclusion 	that
the 	contractual requirement was 	not 	satisfied. 	Thus, 	the
informal 	level of 	the 	contractual grievance procedure 	having
been 	exhausted, 	the District's persistent 	refusal 	to process
the 	grievance beyond 	the 	informal 	level 	amounted 	to 	interference
with 	the 	operation 	of 	the 	grievance procedure.
There 	are also other 	examples 	of 	the District's
obstructionist 	approach 	to 	the 	grievance. 	Gaughenbaugh's
uncontroverted 	testimony 	established 	that 	when 	he 	first 	asked
Brown 	to 	substantiate 	the 	evaluation, 	she 	responded 	that 	it was
"privileged 	information." 	This 	is 	hardly 	consistent with 	her
testimony 	that 	she 	was 	anxious 	to meet with Gaughenbaugh 	to
resolve 	the 	complaint. 	And, 	when Gaughenbaugh 	initially 	filed
the 	formal grievance, 	Brown 	did 	not contend 	that 	he 	had 	not
completed 	the 	informal 	step. 	Rather, 	she 	forced him 	to 	refile
it 	on 	the wrong 	form. 	It was 	not until 	later 	that 	she 	claimed
he 	had 	not met with 	her 	informally. 	Lack of 	cooperation 	in
processing 	a 	grievance 	supports 	an 	inference 	of 	an 	unlawful
motive. 	Marin Community College District, 	supra, 	p. 	13;
Caterpillar Tractor 	Co. 	v. 	NLRB, 	(CA 9 	1981) 	F.2d 	[106
LRRM 	2854].
Based on the 	foregoing, 	it 	is concluded 	that 	the District's
reasons for 	issuing 	the 	reprimands 	to Gaughenbaugh were without
39

merit 	and 	were 	thus pretextual. 	The District's claim of
justification 	based 	on 	the 	operational 	necessity 	to 	enforce
reasonable 	rules, 	fairly applied, 	simply 	evaporates 	upon close
scrutiny. 	The 	record 	is 	replete 	with 	evidence which 	strongly
suggests 	that 	an 	unlawful 	motive 	was 	at 	work 	as 	the 	moving
force 	behind 	the 	issuance 	of 	the 	reprimands 	and 	the 	related
actions of 	the 	employer.
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.
In addition,
If 	[the 	trier of 	facts] 	finds 	that 	the
stated motive for 	a 	[transfer] 	is false, 	he
certainly can 	infer 	that 	there 	is 	another
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
40
• 	• 	• 	• 	• 	• 	• 	• 	•

compelled 	to draw the inference of unlawful motive and conclude
that 	the District's actions were 	taken 	in retaliation for
Gaughenbaugh 	filing a grievance.
CONCLUSION
The District's 	retaliation against Kent Gaughenbaugh for
filing a grievance violated section 3543.5(a). 	Under 	these
circumstances, 	retaliation against an employee for 	filing a
grievance under a collective bargaining agreement constitutes a
concurrent violation of 	section 3543.5(b). 	Santa Monica Unified
School District 	(12/10/80) PERB Decision No. 147. 	Additionally,
retaliation 	for 	filing a grievance also constitutes 	interference
in the day-to-day administration of a collective bargaining
agreement and 	is 	therefore a refusal 	to negotiate in good faith
in violation of section 	3543.5(c).22 It 	is well 	settled that
the administration of a contract, 	including day-to-day
adjustments in the agreement and other working rules, 	as well
as the resolution of new problems not necessarily covered by the
agreement, 	is an essential part of the collective bargaining
process and facilitates the ongoing purposes of the EERA.
Jefferson School District, supra, PERB Decision No. 	133, pp.
54-55, 115; Morris, the Developing Labor Law, Ch. 11, p. 340;
22Even 	if the Association was not involved 	as
Gaughenbaugh's 	representative 	in the grievance or named as
charging party in this case, 	finding a section 3543.5(c)
violation 	is 	appropriate. 	South San Francisco Unified School
District (1/15/80) PERB Decision No. 	112.
41

Conley v. Gibson (1957) 	355 U.S. 	41, 	46 	[41 LRRM 2089]; NLRB v.
Acme Industrial Corp., 	supra.
There 	is 	no evidence to support a conclusion that section
3543.5(d) 	has been violated. 	Therefore, 	that part of 	the 	charge
is 	dismissed.
REMEDY
Under 	Government 	Code 	s e c t i o n 	3541.5 (c) 	PERB 	is 	g i v e n :
. 	. 	. 	the power to issue a decision and order
directing an offending party 	to cease and
desist 	from the unfair practice and 	to 	take
such affirmative 	action, 	including 	but 	not
limited to the 	reinstatement of employees
with or without back pay, 	as will effectuate
the policies of this chapter.
Under 	the circumstances presented here, 	it 	is appropriate 	to
order 	the District to cease and 	desist 	from violating 	section
3545.5 (a), 	(b) 	and 	(c) 	by retaliating against employees for
filing grievances under an agreement negotiated by the
Association and 	the District.
In addition, 	it 	is 	appropriate 	to order 	the District to
remove and destroy all memos sent by the District to
Gaughenbaugh and referred to 	in this opinion from Gaughenbaugh's
official personnel 	file, 	as well as from the 	file kept by Brown.
This remedy is consistent with that imposed by the Board 	in
other cases where documentation was unlawfully placed in an
employee's personnel file. 	See San Ysidro School District
(6/19/80) PERB Decision No. 134; San Diego Unified School
District 	(6/19/80) PERB Decision No. 137; 	Santa Monica Unified
School District, supra, PERB Decision No. 147.
42

It also 	is 	appropriate 	that 	the District be 	required 	to
post a notice 	incorporating 	the terms 	of the order. 	The notice
should be subscribed by an authorized agent of 	the District
indicating 	that 	it will 	comply with 	the 	terms 	thereof. 	The
notice shall not be 	reduced 	in size. 	Posting 	such a 	notice will
provide employees with notice that 	the District has acted 	in an
unlawful manner 	and 	is being 	required 	to cease and desist from
this 	activity and 	to 	take the 	appropriate 	affirmative steps. 	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
charge which alleges a violation of 	section 	3545.5(d).
PROPOSED ORDER
Upon 	the 	foregoing 	findings 	of 	f a c t 	and 	c o n c l u s i o n s 	of 	law,
and 	the 	e n t i r e 	record 	in 	the 	c a s e , 	and 	pursuant 	to 	s e c t i o n
3541.5 ( c ) , 	it 	is 	hereby 	ordered 	t h a t 	the 	North 	Sacramento 	School
D i s t r i c t , 	i t s 	governing 	board 	and 	i t s 	r e p r e s e n t a t i v e s 	s h a l l :
1. 	CEASE AND DESIST FROM:
43

(a) 	Imposing or threatening to impose reprisals on
Kent Gaughenbaugh for 	filing a grievance under a collective
bargaining agreement negotiated by the Association and the
District.
(b) 	Denying the right of North Sacramento Teachers
Association, CTA/NEA, to represent unit members by retaliating
against Kent Gaughenbaugh for filing a grievance under a
collective bargaining agreement negotiated by the Association.
(c) 	Refusing to negotiate 	in good faith with the
Association, 	the exclusive representative of certificated
employees in the District, 	in the day-to-day administration of
a collective bargaining agreement by retaliating against a
bargaining unit employee 	for 	exercising his right to file a
grievance under 	the negotiated procedure in that agreement.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED
TO EFFECTUATE THE POLICIES OF THE ACT.
(a) 	Immediately 	remove 	and 	d e s t r o y 	a l l 	memos 	s e n t 	by
D i s t r i c t 	r e p r e s e n t a t i v e s 	to 	Kent 	Gaughenbaugh 	and 	r e f e r r e d 	to
i n 	t h i s 	d e c i s i o n 	from 	Gaughenbaugh's 	o f f i c i a l 	p e r s o n n e l 	f i l e ,
as 	well 	as 	from 	the 	f i l e 	kept 	on 	Gaughenbaugh 	by 	S y b i l 	Brown.
(b) 	Within 	five 	(5) 	workdays 	a f t e r 	t h i s 	d e c i s i o n
becomes 	f i n a l , 	p r e p a r e 	and 	p o s t 	copies 	of 	the 	NOTICE 	TO
EMPLOYEES 	a t t a c h e d 	as 	an 	appendix 	h e r e t o , 	for 	at 	l e a s t
fourty-five 	(45) 	workdays at its headquarters offices and in
conspicuous places at the location where notices to certificated
44

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.
(c) 	Within 	twenty 	(20) 	workdays 	from service of 	the
final 	decision 	herein, 	give written 	notification 	to 	the
. .- Sacramento 	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 Association's 	charge 	alleging 	that 	section
3545.5(d) 	has 	been 	violated 	is 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 8, 	part
III, 	section 32305, 	this Proposed Decision 	and Order 	shall
become 	final on 	September 	14, 	1981, 	unless 	a party files a timely
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.) O n September 14, 	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
45

filed with 	the Board 	itself. 	See California Administrative
Code, 	t i t l e 8, part I I I , sections 32300 and 32305 as amended,
Dated: 	August 24. 1981
FRED D'ORAZIO
Hearing 	Officer
46

Original Proposed Decision
Posting Notice
Not attached to final decision.
APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State of 	California
After 	a hearing 	in Unfair Practice Case No. 	S-CE-381, 	in
which all parties had 	the right 	to participate, 	it has been
found 	that 	the 	District violated 	Government Code 	section
3543.5(a), 	(b) 	and 	(c)..
As 	a result 	of 	this 	conduct we 	have 	been 	ordered 	to post
this Notice, 	and will abide by 	the 	following. 	We will:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Imposing or 	threatening 	to impose reprisals on
Kent Gaughenbaugh for 	filing a grievance under a collective
bargaining agreement negotiated by 	the Association and the
District.
(b) 	Denying 	the right of North Sacramento Teachers
Association, CTA/NEA, 	to represent unit members by 	retaliating
against Kent Gaughenbaugh for 	filing a grievance under 	a
collective bargaining agreement negotiated by 	the Association.
(c) 	Refusing 	to negotiate 	in good 	faith with the
Association, 	the exclusive 	representative of 	certificated
employees in the District, 	in the day-to-day administration of
a collective bargaining agreement by 	retaliating against a
bargaining 	unit 	employee 	for 	exercising his 	right 	to 	file a
grievance 	under 	the negotiated procedure 	in that 	agreement.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES OF THE ACT.
(a) 	Immediately 	remove 	and 	destroy 	all 	memos 	sent by
District 	representatives 	to Kent Gaughenbaugh 	and 	referred 	to
in 	this 	decision 	from Gaughenbaugh's official personnel 	file,
as 	well 	as 	from 	the 	file kept on Gaughenbaugh 	by Sybil Brown.
Dated: 	NORTH 	SACRAMENTO 	SCHOOL DISTRICT
By
A u t h o r i z e d 	A g e n t
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST REMAIN 	POSTED 	FOR AT 	LEAST
FORTY-FIVE 	(45) 	WORKDAYS FROM THE 	DATE OF 	POSTING AND MUST 	NOT
BE REDUCED 	IN 	S I Z E , 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL,