San Diego Community College District (PERB 0368E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN 	DIEGO 	COMMUNITY COLLEGE 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
SAN 	DIEGO 	COMMUNITY COLLEGE 	DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-1410
PERB 	Decision 	No. 	368
December 	22, 	1983
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Appearances: 	Charles 	R. 	Gustafson, 	Attorney 	for 	San 	Diego
Community College 	Teachers 	Association, 	CTA/NEA;
Larry 	J. 	Frierson, 	Attorney 	(Liebert, 	Cassidy 	& Frierson) 	for
the 	San 	Diego 	Community 	College 	District.
Before 	Gluck, 	Chairperson; 	Morgenstern 	and 	Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is 	before 	the 	Public
Employment 	Relations 	Board 	(PERB 	or 	Board) 	on 	exceptions 	to 	the
proposed 	decision 	of 	an 	administrative 	law 	judge 	(ALJ) 	filed 	by
the 	San 	Diego Community College 	District 	(District) 	and 	a
response 	to 	those 	exceptions 	filed 	by 	the 	San 	Diego· Community
College 	Teachers 	Association, 	CTA/NEA 	(CTA). 	The 	ALJ 	found
that 	the 	District 	board 	of 	trustees 	discriminated 	against 	two
employees 	in 	violation 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA or 	Act)l 	by 	refusing 	to 	ratify 	two 	grievance
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	noted, 	all 	statutory 	references 	are
to 	the 	Government 	Code.

settlement
	agreements 	because
	one
	of 	the
	grievants 	exercised
her
	right
	protected
	by EERA,
	to
	address 	the
	board
	on
	behalf
	of
CTA.
The
	District
	excepts 	to
	numerous
	findings 	of
	fact
	made	
by
the
	ALJ,
	to 	his 	analysis,
	finding 	of
	violation
	and
	proposed
remedy.
The Board
	has 	reviewed
	the
	proposed
	decision 	in
	light
	of
the
	District's
	exceptions,
	the 	response
	thereto,
	and
	the
	entire
record 	in
	this
	matter.
	We
	find
	that
	the 	ALJ's
	findings
	of
	fact
are
	free 	of
	prejudicial
	error
	and
	adopt
	them
	as 	the
	findings 	of
the
	Board
	itself.
	We
	affirm
	the 	ALJ's
	conclusions 	of
	law 	and
moaify 	the 	proposed
	remedy,
	consistent
	with
	the 	following
discussion.
FACTS
For
	more
	than
	six 	years,
	John
	Couch 	and 	Maureen 	Keegan
	were
employed 	by
	the
	District
	as
	part-time 	instructors, 	also
referred 	to
	as 	"hourly" 	or
	"evening"
	instructors.
	They
	taught
three 	classes,
	equivalent 	to
	60
	percent 	of
	a
	full-time
assignment.2
2Eaucation
	Code
	section
	87482
	(formerly
	section 	13337.5),
enacted 	in
	1967,
	provides
	that 	part-time
	community
	college
instructors
	who
	teach 	not
	more
	than
	60
	percent 	of
	a
	full-time
assignment 	are 	considered 	temporary 	employees 	and 	have 	no
	rightto 	continued
	employment.
In 	Peralta 	Federation 	of 	Teachers 	v.
	Peralta
	Community
College
	District
	(1979) 	24
	Cal.3d 	369, 	the 	California
	Supreme
Court 	held 	that 	Education
	Code
	section
	87482 	has 	only
2

CTA 	represents 	approximately 	500 	full-time 	and 	1,500
part-time 	instructors 	employed 	by 	the 	District 	and 	had
negotiated 	a 	collective 	bargaining 	agreement 	covering 	those
employees 	for 	the 	period 	July 	1, 	1980 	to 	June 	30, 	1981.
Part-time 	faculty 	are 	represented 	on 	the 	CTA executive 	board
and 	negotiating 	committee 	by 	the 	Hourly 	Faculty Association
(Association}. 	Part-time 	faculty 	are 	also 	represented 	on
certain 	matters 	by 	the 	Hourly 	Faculty Senate. 	At 	all 	times
relevant 	to 	this 	case, 	Couch 	and 	Keegan 	were 	active 	members 	and
officers 	of 	both 	organizations.
In 	1979-80, 	both 	employees 	served 	on 	the 	executive 	board 	of
the 	Association, 	while 	Couch 	was 	president 	of 	the 	Hourly
Faculty Senate 	and 	Keegan 	was 	president-elect. 	In 	1980-81,
Couch 	became 	president 	of 	the 	Association. 	Keegan 	remained 	on
the 	Association 	executive 	board 	and 	became 	president 	of 	the
Hourly 	Faculty 	Senate. 	She 	also 	served 	on 	the 	CTA 	negotiating
team 	both 	years.
Each 	campus 	in 	the 	District 	also 	has 	a 	full-time 	faculty
senate. 	Full-time 	senate 	officers 	are 	granted 	released 	time
for 	the 	performance 	of 	senatorial 	duties. 	Until 	January 	1981,
Hourly 	Faculty Senate 	officers 	received 	a 	stipend 	for 	the
prospective 	effect. 	Thus, 	part-time 	instructors 	employed 	prior
to 	enactment 	of 	the 	section 	in 	1967 	became 	probationary
contract 	employees 	pursuant 	to 	Education 	Code 	section 	87605
(formerly 	section 	13346.05) 	and, 	after 	two 	years, 	acquired
regular 	permanent 	status 	pursuant 	to Education 	Code 	section
87609 	(formerly 	section 	13346.25).
3

performance
	of
	senatorial 	duties.
	The
	stipend
	was
	based 	on
	a
designated
	number
	of
	hours
	calculated
	at
	the
	nonclassroom
	rate
of 	pay,
	which
	is
	less
	than
	the
	classroom
	rate.
In 	July
	1979,
	as
	incoming
	Hourly
	Faculty
	Senate
	president,
Couch
	wrote
	to
	the
	Chancellor
	requesting
	an
	increase
	in
compensation
	for 	the
	officers
	of
	the
	Hourly
	Faculty
	Senate
	to
	a
level
	of
	"parity"
	with 	the
	full-time 	senates.
	He
	sought
	either
more
	hours
	of
	compensation
	or
	a
	full-time 	contract
	for 	the
president
	and 	a
	partial
	contract
	for 	the
	president-elect,
	with
released
	time
	on
	par 	with
	the
	full-time
	senate
	officers.
	Couch
believed
	that
	they
	were
	entitled
	to 	contracts
	because
	their
combined
	teaching
	and
	senatorial 	duties
	exceeded
	60
	percent 	of
full-time.
Provost
	Lawrence
	Davenport 	responded	
by	
letter
	on
October
	3,
	1979,
	indicating
	that,
	in 	the
	future,
	Hourly
	Faculty
Senate
	officers
	would
	receive 	released
	time
	instead 	of
	a
stipend,
	with 	the
	result 	that 	their 	total
	assignment
	would
	not
exceed
	60
	percent 	of
	a
	full
	load~ 	Couch 	and 	Keegan 	met
	with
Davenport
	and
	objected 	to
	this
	change 	because
	it
	would
	affect
classes
	already
	underway 	and 	would
	decrease
	their 	overall
compensation. 	Davenport 	claimed
	that
	the
	existing 	practice
violated
	the 	60-percent 	rule 	of 	the 	Education
	Code 	and 	would
permit
	them
	to 	claim
	a
	right 	to
	a
	full-time 	contract.
Pay 	warrants 	received
	by Couch 	and 	Keegan
	in
	October
	did
not 	include 	the 	stipend.
	They 	both
	filed 	grievances. 	Couch's
4

grievance
	complained
	of
	violations
	of 	the
	collective
	bargaining
agreement
	and
	the
	60-percent
	rule
	of 	the 	Education
	Code,
	and
requested
	a
	77-percent
	contract
	effective
	September
	1,
	1978
with
	back
	pay,
	and 	a
	full
	contract 	effective
	September
	1,
	1979.
Couch 	and 	Keegan
	subsequently 	received
	payment
	of 	the
stipend
	for
	October
	and
	for 	the
	rest
	of 	the
	fall
	semester,
	and
the
	change
	in
	senatorial
	compensation
	announced 	on
	October
	3,
1979 	was
	not
	implemented
	until
	January
	1981.
On
	November
	21, 	1979, 	William
	Ramstad,
	Director 	of
Personnel Services,
	returned
	the
	grievances,
	stating 	that
	a
violation
	of 	the
	Education
	Code 	was
	not
	grievable
	under
	the
contract.
	Ramstad
	also
	conducted
	an
	audit 	of
	their
	hours
	and
concluded
	that 	service
	rendered
	by
	senate
	officers
	was
	not
	part
of 	the
	classroom 	teaching
	assignment
	and
	that
	they,
	therefore,
had
	not
	exceeded
	the 	60-percent
	rule
	and 	were
	not
	entitled
	to
contracts.
Nevertheless,
	on 	December
	2, 	1980,
	the 	grievances
	went
	to
arbitration.
	After 	presentation 	of
	CTA's
	case, 	the 	hearing
	was
adjourned
	to
	be 	resumed
	at
	a
	later
	date.
Following 	adjournment, 	the
	District's
	Director 	of
Administrative 	Services
	and
	chief 	negotiator, 	Cecil
	J.
	Hannan,
met
	with
	CTA
	Attorney 	Daniel
	R.
	Saling,
	CTA
	President 	Carolyn
Pickering,
	and
	CTA
	Field 	Representative 	Lola Buie,
	and
	offered
to
	settle
	the 	grievances
	by
	providing 	60-percent 	contracts 	for
both
	Couch 	and 	Keegan.
	After 	conferring 	with 	the 	grievants,
Saling 	relayed 	their 	acceptance 	to
	Hannan.
5

All
	of 	the
	CTA
	witnesses
	present
	during
	this
	meeting
testified
	that
	Hannan
	gave
	no
	indication
	that
	board
	approval
	of
the
	settlement
	agreements
	would 	be
	required.
	Hannan
	testified
that
	he
	said
	he
	would 	"recommend
	the
	settlement,"
	but
	he
	could
not
	recall
	if
	he
	indicated 	to
	whom
	he 	would 	make
	this
recommendation.
Settlement
	agreements
	were
	subsequently 	prepared 	by	
the
District's
	counsel,
	and
	stated
	in
	pertinent 	part
	as
	follows:
[R]espondent
	San
	Diego
	Community
	College
District
	hereby
	offers
	to
	grant 	grievant
	a
60%
	contract
	as
	a
	contract
	employee
effective
	the
	first
	day
	of 	the 	Spring
Semester
	of
	1981,
e 	• 	e 	e 	e 	• 	6 	• 	• 	•	
~	
0 	• 	0 	• 	e 	e 	e
The
	undersigned
	further
	agrees
	that
	by
acce~ting
	District's
	offer,
	he
	will
	receivecontinuing
	employment
	rights
	which 	he 	would
not 	otherwise
	be
	entitled
	to
	.•••
Couch 	and 	Keegan
	executed 	the
	agreements
	on 	December
	23,
1980. 	Other
	signatories
	were
	Pickering
	and
	Saling 	for
	CTA,
Hannan
	for 	the
	District,
	and
	Ellen
	R.
	Michaels 	for 	the 	County
Counsel, 	as
	attorney 	for 	the
	District.
	The
	agreements
contained
	no
	indication 	that
	approval 	or
	ratification
	by
	the
board 	of
	trustees
	was
	required.
At
	a
	January 	14,
	1981
	board 	meeting,
	Keegan 	spoke
	as
	part
of 	the
	CTA
	presentation, 	objecting 	to
	a
	District 	salary
proposal
	advanced 	during 	contract 	negotiations
	which 	would 	have
created
	a
	three-tier 	contract 	system.
6

Sometime 	between 	the 	16th 	and 	20th 	of January, 	Hannan 	told
Pickering 	that 	contracts 	for 	Couch 	and 	Keegan 	were 	being
prepared. 	Also 	sometime 	in 	January, 	CTA 	advised 	the 	arbitrator
that 	the 	grievance 	had 	been 	settled.
On January 	20, 	Keegan 	was 	told 	by 	her 	supervisor 	that 	she
would 	have 	to 	cut 	two 	of 	her 	three 	classes 	or 	resign 	as 	Hourly
Faculty Senate 	president. 	Keegan 	wrote 	to 	the 	Chancellor
offering 	to 	serve 	without 	pay, 	and 	was 	told 	that 	under 	no
condition 	could 	she 	continue 	her 	Senate 	presidency.
On January 	21, 	Keegan 	informed 	the 	CTA 	executive 	board 	of
the 	demand 	for 	her 	resignation 	and 	told 	them 	she 	was 	going 	to
address 	the 	situation 	at 	the 	board 	of 	trustees' 	January 	28
meeting. 	Keegan 	testified 	that 	she 	also 	protested 	the 	demand
for 	her 	resignation 	at 	a 	District Executive 	Council 	meeting 	on
the 	same 	date 	and 	that 	Hannan 	responded 	that, 	with 	what 	she 	had
received 	which 	was 	"the 	same 	as 	a 	contract," 	she 	cotild 	take
released 	time.
On 	or 	about 	January 	22, 	1981, 	Couch 	went 	to 	the 	District
personnel 	office 	and 	signed 	a 	standard 	form 	contract 	of
employment.3 	He 	then 	passed 	Hannan 	in 	the 	building 	and
3The 	contract 	provides 	in 	pertinent 	part:
You 	are 	hereby 	offered 	employment 	beginning
1/26/81 	and 	ending 	6/5/81, 	as 	a/an 	College
Instructor, 	60%, 	JO-month 	assignment.
This 	appointment 	is 	subject 	to 	the
provisions 	of 	the 	laws 	of 	the 	State 	of
7

Hannan 	said, 	"Congratulations 	on 	your 	contract, 	and 	it 	won't 	be
long 	before 	you'll 	have 	a 	full-time."
Shortly 	thereafter, 	Couch 	told 	Keegan 	he 	had 	signed 	a
contract 	and 	encouraged 	her 	to 	inquire 	about 	her 	contract.
When 	she 	called 	the 	personnel 	office, 	she 	was 	told 	that 	there
was 	no 	contract 	for 	her.
On 	January 	27, 	Keegan 	resigned 	as 	Hourly 	Faculty 	Senate
president. 	Consequently, 	she 	did 	not 	get 	a 	stipend 	for 	the
spring 	semester, 	amounting 	to 	about 	$3,000. 	Rachel 	Daniels,
president-elect 	of 	the 	Senate, 	also 	resigned 	her 	office 	rather
than 	cut 	her 	teaching 	load.
On 	January 	28, 	Keegan 	appeared 	before 	the 	board 	of 	trustees
and 	complained 	about 	this 	policy 	which 	forced 	her 	resignation
and 	which, 	she 	said, 	was 	taking 	away 	the 	leadership 	of 	the
Hourly 	Faculty 	Senate 	and 	"effectively 	would 	take 	away 	our
bargaining 	power." 	She 	also 	stated 	that 	"no 	one 	••. 	wants 	to
California, 	certification 	requirements 	of
the 	State 	of 	California, 	the 	Rules 	and
Regulations 	of 	the 	San 	Diego 	Community
College 	District 	Board 	of 	Trustees, 	and 	the
provisions 	of 	the 	adopted 	Salary Schedule.
Please 	sign 	and 	return 	the 	original 	copy 	of
this 	offer 	of 	employment 	within 	ten 	days,
indicating 	acceptance 	or 	non-acceptance. 	If
you 	require 	additional 	time 	to 	make 	a
decision, 	you 	must 	request 	an 	extension 	of
this 	offer. 	Your 	acceptance 	of 	this 	offer
will 	be 	considered 	binding. 	We 	shall 	expect
you 	to 	report 	for 	paid 	duty 	on 	1/26/81.
8

have
	back-door
	contracts,
	but
	if
	that
	was
	the 	only
	way
[teachers]
	could
	get
	contracts,
	.
	then
	••.
	that's
	the
way
	it
	should
	go."
	She
	testified
	that
	the
	board
	"showed
	great
consternation
	at
	the
	mention
	of
	back-door
	contracts"
	and
	then
went
	into
	executive
	session.4
On
	January
	29,
	Keegan 	and
	Rachel
	Daniels
	went
	to
	Hannan's
office 	at
	his
	invitation.
	Both
	testified
	that
	Hannan 	became
quite
	emotional
	and
	told
	Keegan
	that
	she
	had
	"blown
	it"
	and
would
	not
	get
	a
	contract
	because
	of
	what
	she
	had
	said
	at
	the
meeting.
	On
	January
	30,
	Hannan
	told
	Couch
	that
	Keegan's 	speech
had
	threatened
	the
	validity
	of 	the
	settlement
	agreements,
	and
possibly
	undermined
	any
	contract
	being 	upheld,
	but
	that
	every
effort
	would 	be 	made
	to
	protect
	Couch's
	contract
	because
	it
	was
already
	signed.
	Also
	on
	the 	29th 	or 	30th
	of 	January,
	Hannan
4According
	to
	a
	declaration
	submitted 	with 	the
	District's
exceptions,
	Hannan
	first
	presented 	the 	settlement
	agreements
	tothe
	board 	following 	Keegan's
	presentation
	on
	January
	28.
At
	hearing,
	Hannan 	had
	testified 	that
	he
	b~lieved
	he
presented
	the 	proposed
	settlement
	agreements
	to
	the 	boardsometime
	before 	the 	20th 	of 	January.
The
	declaration 	is 	allegedly
	based
	on
	Hannan's 	review
	of
certain
	documents. 	But
	the
	District 	fails
	to 	explain
	why,
	inthe 	exercise 	of 	reasonable 	diligence, 	these
	documents
	could 	nothave 	been 	produced 	or 	consulted 	during 	hearing
	so 	as 	to 	provide
CTA
	with
	an
	opportunity 	for 	cross-examination
	and
	rebuttal.
We,
	therefore, 	decline 	to 	consider
	this 	belatedly 	submitted
evidence.
Moreover,
	we
	do
	not 	find 	the 	date
	on 	which
	the 	agreementswere
	presented 	to 	the 	board
	critical
	to 	the 	issues 	in 	thiscase,
	and
	we
	do
	not 	rely
	on
	that 	date 	in 	reaching 	our 	decision.
9

told 	Pickering 	that 	Keegan 	"blew 	it" 	by 	her 	speech 	to 	the 	board
on 	the 	28th. 	According 	to Pickering, 	"He 	(Hannan) 	was 	angry,
and 	as 	he 	spoke, 	he 	seemed 	to 	get 	a 	little 	heated 	up 	a 	little
bit 	about 	it, 	and 	say, 	you 	know, 	that 	her 	remarks 	were
injudicious, 	that 	the 	Board 	was 	upset 	by 	her 	remarks, 	and 	that
there 	-- 	then 	there 	would 	be 	no 	contract 	for 	her."
On 	or 	about 	January 	30, 	Keegan 	received 	notice 	that 	the
settlement 	agreements 	would 	be 	submitted 	to 	the 	board 	on
Wed~esday, 	February 	4, 	1981. 	Keegan 	was 	told 	that 	it 	was 	not
an 	open 	meeting 	and, 	therefore, 	did 	not 	attend. 	Keegan 	and
Couch 	were 	both 	notified 	in 	writing 	on February 	5, 	1981 	that
the 	board 	had 	declined 	to 	ratify 	the 	proposed 	settlement
agreements. 	No 	reason 	for 	the 	action 	was 	stated.
When 	he 	learned 	of 	the 	board's 	action, 	Saling 	called
Hannan. 	According 	to 	Saling, 	Hannan 	said 	that 	the 	board 	had
decided 	not 	to 	ratify 	the 	agreements 	because 	they 	were 	angry 	at
Keegan 	for 	her 	statements 	of 	January 	28. 	According 	to 	Saling,
Hannan ·also said, 	"Boy, 	did 	she 	blow 	it," 	and 	"if 	she 	had 	only
kept 	her 	mouth 	shut."
Hannan 	denied 	telling 	Saling 	that 	the 	board 	was 	angry,
stating 	that 	he 	"had 	no 	basis 	to 	know 	the 	board 	was 	angry." 	He
testified 	that 	"to 	his 	knowledge" 	Keeg~n's 	presentation 	did 	not
keep 	her 	from 	getting 	a 	contract 	and 	that 	he 	saw 	no
relationship 	between 	her 	presentation 	and 	the 	board 	action.
Hannan 	admitted 	talking 	to 	Keegan 	and 	to 	Saling 	about 	the
10

presentation, 	saying 	that 	he 	did 	not 	think 	such 	hostility 	would
help 	in 	reaching 	an 	acceptable 	resolution 	of 	the 	issues. 	While
he 	denied 	saying 	that 	Keegan 	had 	"blown 	it," 	as 	testified 	by
Keegan, 	Daniels, 	Pickering 	and 	Saling, 	he 	testified 	as 	follows:
I 	have 	mentioned 	that 	-- 	that 	she 	would 	blow
like 	a 	volcano 	•.• 	I 	think 	I 	probably 	on 	a
number 	of 	occasions 	said 	that 	she 	blew 	again
whenever 	one 	of 	these 	eruptions 	would
occur.5
The 	record 	establishes 	that 	the 	District's 	regular
procedure 	for 	hiring 	contract 	employees 	is 	to 	advertise 	for 	the
position, 	submit 	applications 	to 	a 	screening 	committee 	which
includes 	an 	affirmative 	action 	representative, 	and 	submit 	the
hiring 	administrator's 	selection 	and 	hiring 	recommendation 	to
the 	board. 	Hourly 	employees 	are 	hired 	without 	the 	entire
screening 	process 	but 	with 	board 	approval. 	Thus, 	all
employment 	contracts 	require 	board 	approval, 	as 	do 	all
tentative 	agreements 	reached 	at 	the 	bargaining 	table.
"Back-door" 	contracts 	are 	contracts 	granted 	other 	than
through 	the 	District's 	regular 	hiring 	procedure. 	Hannan
testified 	that 	the 	board 	is 	opposed 	to 	the 	use 	of 	back-door
contracts 	because 	"it 	circumvents 	the 	District's 	affirmative
5The 	ALJ 	resolved 	the 	testimonial 	discrepancy 	between 	the
CTA 	witnesses 	and 	Hannan 	in 	favor 	of 	CTA. 	In 	addition 	to 	the
demeanor 	of 	the 	witnesses, 	he 	noted 	that 	Hannan's 	response 	was
not 	a 	flat 	denial 	but 	rather 	"equivocal 	and 	nonabjective," 	and
that 	Hannan 	admitted 	to 	using 	the 	terms 	attributed 	to 	him. 	We
find 	the 	ALJ's 	characterization 	of 	Hannan's 	testimony 	amply
supported 	by 	the 	record 	and 	see 	no 	reason 	to 	overturn 	his
credibility 	determination.
11

action
	policy.
	It
	does
	not
	necessarily
	line
	up
	with
	their	
view
of
	the
	District
	needs.
	And
	it
	circumvents 	the
	regular
	hiring
policy 	that
	they
	have
	adopted."
	However, 	Hannan
	testified
	that
"back-door"
	contracts
	had
	been
	given
	in 	the
	past 	to
	persons
	who
had
	exceeded
	the 	60-percent
	limit
	--
	either
	as
	a
	result
	of
court 	orders,
	or
	as
	a
	result
	of 	"discussions"
	with
	another
employee
	organization
	regarding 	persons
	falling
	within 	the
Peralta. rule.
	(See
	footnote
	2,
	supra.)
	Ramstad
	testified 	that
the
	board
	of
	trustees
	had
	approved
	every 	back-door
	contract
	he
recommended,
	except 	those 	of
	John
	Couch 	and Maureen 	Keegan.
DISCUSSION
CTA's
	charge
	alleged
	that
	the
	District
	violated 	subsections
3543.S(a)
	and 	(b) 	by
	refusing
	to
	honor
	the
	settlement
agreements 	because
	of
	Keegan's 	January
	28
	speech
	to
	the 	board,
and
	also 	violated 	subsection
	3543.S(c)
	by
	refusing 	to
	honor
	the
agreements
	after
	the
	District
	representatives
	had
	indicated
they
	had
	authority 	to 	enter 	into
	final
	and
	binding 	agreements.
After 	presentation
	of
	its
	case
	at
	hearing,
	CTA
	moved
	to
	amend
the 	charge
	to 	allege
	a
	unilateral
	change
	in
	the
	policy 	of
providing 	stipends 	to 	the
	Hourly
	Faculty 	Senate
	officers.
Ruling
	on
	the
	District's
	objection, 	the
	ALJ
	denied 	the 	motion
to
	amend 	on 	grounds 	of 	surprise
	and
	prejudice 	to 	the
	District.
Applying 	the
	test
	for 	discrimination 	set 	forth 	in Novato
Unified 	School
	District
	(4/30/82)
	PERB
	Decision
	No. 	210,
	the
12

ALJ
	concluded
	that
	the
	District's
	conduct
	violated
	subsection
3543.S(a)
	of
	EERA.
	He
	dismissed 	the
	(b)
	charge, 	finding
	that
CTA
	had
	failed
	to
	provide
	affirmative
	evidence 	as
	required
under 	Novato,
	supra,
	that
	its
	rights
	had
	been
	adversely
affected	
by	
the
	actions 	against
	Couch 	and
	Keegan.
	He
	also
dismissed 	the
	(c)
	charge, 	finding
	that
	Hannan
	did 	not
	possess
apparent
	authority
	to
	commit
	the
	District
	to
	the
	settlement
agreement,
	and
	that
	the
	board
	did 	not
	ratify
	the
	agreement	
by
providing
	Couch
	with
	a
	contract
	of
	employment.
	Finally,
	the
ALJ
	reaffirmed
	his 	denial 	of
	CTA's
	motion
	to
	amend.
In
	its
	response
	to
	the
	District's
	exceptions,
	CTA
	generally
supports
	the 	ALJ's
	findir:i,g
	of
	violation,
	but
	also 	asserts 	that
it
	is 	entitled
	to
	prevail
	on
	all
	issues 	raised 	in
	its
	brief,
which
	it
	incorporates
	by
	reference 	into
	its
	response.
	Assuming
that
	CTA's
	response
	is
	intended 	as
	a
	statement 	of 	exceptions 	to
the
	ALJ's
	dismissal 	of
	its
	(b) 	and 	(c)
	charges
	and
	his 	refusal
to 	consider
	the
	alleged
	unilateral
	change,
	we
	find
	this
response 	lacking 	in
	sufficient 	specificity
	to
	be
	considered 	as
a
	statement 	of 	exceptions
	under
	PERB
	regulations.6	
We,
therefore,
	do
	not 	consider
	CTA's
	response
	and
	affirm 	the 	ALJ's
dismissal 	of 	these 	charges.
6PERB
	regulations 	are 	codified 	at 	CaliforniaAdministrative
	Code,
	title
	8, 	section
	31001
	et
	seq.32310
	states
	in 	pertinent 	part:
•.•
	The 	response
	may
	contain
	a
	statement
of
	any ~xceptions 	the 	responding 	party
13

By 	way
	of
	its
	brief
	and
	exceptions, 	the
	District
	claims
that,
	consistent
	with
	its
	policy 	against
	"back-door"
	contracts,
it
	would 	have
	rejected
	the
	settlement
	agreements
	even
	in
	the
absence
	of
	Keegan's
	presentation.
	It
	excepts
	to
	each
	step 	of
the
	ALJ's
	application
	of 	the
	Novato
	test,
	to
	his
	finding
	of
violation,
	and
	to
	his
	proposed
	remedy. 	While
	we
	agree 	with
	the
District
	that
	the
	ALJ
	erred 	in
	his 	application
	of 	the
	Novato
test
	in
	a 	number
	of
	particulars,
	nonetheless,
	upon 	a
	proper
wishes
	to
	take
	to
	the
	recommended
	decision.
Any
	such
	statement 	of 	exceptions
	shall
comply
	in
	form
	with
	the 	requirements
	of
Section
	32300
••••
Regulation
	32300
	requires
	that:
• The
	statement 	of 	exceptions
	shall:
(1)
	State
	the
	specific
	issues 	ofprocedure,
	fact,
	law
	or
	rationale 	to
which
	each
	exception
	is
	taken;
(2)
	Identify
	the
	page
	or
	part
	of 	the
decision 	to
	which 	each
	exception
	is
taken;
(3) 	Where
	possible, 	designate 	by	
page
citation
	or
	exhibit
	number
	the
	portionsof 	the 	record
	relied
	upon
	for
	each
exception;
(4)
	State
	the 	grounds 	for 	each
exception.
• 	e 	D 	e 	O 	• 	e 	• 	e
(c)
	An
	exception 	not
	specifically
	urged
shall
	be 	waived.
14

application
	of
	that
	test,
	we
	conclude
	that
	the 	finding
	of
violation
	must
	be,
	and
	is,
	affirmed.
In
	Novato,
	the
	Board
	adopted
	the
	test
	for
	discrimination 	or
reprisal
	articulated
	by
	the
	National
	Labor
	Relations
	Board
(NLRB)
	in
	Wright
	Line,
	A
Division 	of
Wright
	Lines, 	Inc.
	(1980)
251
	NLRB
	No. 	150 	[105
	LRRM
	1169]
	aff.
	NLRB
	v. 	Transportation
Management
	Corp.
	(1983) 	_
	U.S.
	[113
	LRRM
	2857].
	There,
we
	held
	that
	the 	charging
	party
	has 	the
	burden
	of
	showing
	that
the
	employee 	engaged
	in 	protected
	activity,
	and
	that
	the
protected
	conduct
	was 	a
	motivating
	factor
	in 	the 	employer's
decision
	to· take 	adverse
	action.
	Accordingly, 	unlawful 	motive
is
	the
	specific
	nexus
	required 	in
	the
	establishment 	of
	a
	prima
facie 	case.
	The 	Board
	recognized
	that 	direct
	proof 	of
motivation
	is
	rarely 	possible, 	since 	motivation
	is
	a
	state
	of
mind 	which 	may 	be 	known
	only
	to
	the
	actor.
	Thus, 	unlawful
motive
	can
	be
	established
	by
	circumstantial
	evidence
	and
inferred
	from
	the 	record 	as
	a
	whole.
	We
	stated
	as
	follows:
To
	justify
	such 	an
	inference, 	the 	charging
party
	must
	prove
	that
	the
	employer 	had
actual
	or
	imputed 	knowledge
	of 	theemployee's
	protected
	activity.
	(Citationomitted.)
	Knowledge
	along 	with
	other
factors
	may
	support 	the 	inference 	ofunlawful 	motive.
	The
	timing 	of 	the
employer's 	conduct 	in
	relation 	to 	theemployee's 	performance
	of 	protected
activity,
	the 	employer's 	disparate 	treatment
of
	employees 	engaged .in 	such
	activity, 	its
departure
	from
	established 	procedures
	and
standards
	when
	dealing 	with 	such 	employees,and
	the 	employer's 	inconsistent 	or
contradictory 	justifications
	for
	its
	actions
15

are 	facts 	which 	may 	support 	the 	inference 	of
unlawful 	motive. 	In 	general, 	the 	inference
can 	be 	drawn 	from 	a 	review 	of 	the 	record 	as
a 	whole.
If 	the 	charging 	party 	can 	raise, 	by 	direct 	or
circumstantial 	evidence, 	the 	inference 	that 	there 	is 	a 	nexus
between 	the 	employee's 	protected 	activity 	and 	the 	adverse
personnel 	action, 	the 	burden 	shifts 	to 	the 	employer 	to 	show
that 	it 	would 	have 	taken 	such 	action 	regardless 	of 	the
employee 9 s 	participation 	in 	protected 	activity.
The 	District 	initially 	excepts 	to 	the 	ALJ's 	finding 	that
Keegan~s 	January 	28 	speech 	constituted 	protected 	participation
in 	CTA 	activity. 	The 	ALJ 	reasoned 	that, 	because 	Keegan 	was, 	at
all 	relevant 	times, 	the 	hourly 	faculty 	representative 	to 	CTA,
and 	because 	her 	January 	14 	speech 	as 	a 	CTA 	spokesperson 	was
protected, 	she 	retained 	that 	protected 	status 	when 	she 	spoke 	on
January 	28. 	The 	District 	argues 	that, 	on January 	28, 	Keegan
was 	acting 	not 	as 	a 	CTA 	spokesperson 	but 	on 	behalf 	of 	the
Hourly 	Faculty Senate 	which, 	it 	claims, 	is 	not 	an 	employee
organizaton 	under 	the 	Act. 	While 	conceding 	that 	Keegan 	spoke
on 	CTA's 	behalf 6n 	January 	14, 	it 	argues 	that 	this 	earlier
speech 	"should 	not 	be 	considered 	to 	create 	an 	everlasting
mantle 	of 	protection 	on 	her 	activity." 	Finally, 	the 	District
claims 	that 	the 	subject 	of 	her 	speech, 	the 	effect 	of 	District
policies 	on 	the 	leadership 	of 	the 	Hourly 	Faculty Senate, 	is 	not
a 	matter 	related 	to 	employer-employee 	relations.
16

The 	District's 	exceptions 	on 	this 	matter 	are 	lacking 	in
merit. 	The 	subject 	of 	Keegan's 	speech, 	concerning 	the 	wages
and 	hours 	of 	those 	unit 	employees 	who 	were 	officers 	of 	the
Hourly 	Faculty 	Senate, 	clearly 	falls 	within 	the 	definition 	of
"employment 	relations" 	as 	stated 	in 	King 	City 	Joint 	Union 	High
School 	District 	(3/3/82) 	PERB 	Decision No. 	197 	and 	Sierra 	Joint
Community 	College 	District 	(9/22/83) 	PERB 	Decision No. 	345.
In 	addition, 	the 	ALJ 	properly 	found 	that 	Keegan 	represented
CTA 	when 	she 	spoke 	on 	January 	28. 	In 	Santa Monica 	Unified
School 	District 	(12/10/80) 	PERB 	Decision No. 	147 	the 	Board
affirmed 	the 	hearing 	officer's 	decision 	which 	stated, 	in
pertinent 	part, 	as 	follows, 	at 	pp. 	16-17:
Officers 	of 	employee 	organizations 	should 	be
presumed 	to 	be 	acting 	with 	the 	authorization
of 	and 	on 	behalf 	of 	the 	organization 	on
those 	matters 	which 	even 	remotely 	relate 	to
the 	goals 	or 	interests 	of 	the 	organization.
If 	the 	determination 	of 	"organizational
activity" 	were 	dependent 	upon 	specific
authorization, 	the 	natural 	result 	would 	be
that 	public 	school 	employers 	and 	the 	PERB
would 	be 	required 	to 	continuously 	monitor
the 	internal 	affairs 	of 	employee
organizations 	in 	order 	to 	ascertain 	whether
an 	individual 	had 	been 	properly 	authorized
to 	act 	on 	behalf 	of 	the 	organization. 	This
is 	hardly 	the 	function 	of 	either 	public
agency.
Since 	Keegan 	was 	a 	member 	of 	CTA's 	executive 	board 	and
negotiating 	committee, 	she 	is 	presumed 	to 	have 	been 	acting 	on
its 	behalf. 	Santa 	Monica, 	supra. 	Moreover, 	by 	discussing 	the
demand 	for 	her 	resignation 	with 	the 	CTA 	executive 	board 	and
informing 	them 	she 	was 	going 	to 	make 	a 	presentation 	on 	the
17

matter 	to 	the 	board 	of 	trustees, 	Keegan 	acquired 	CTA's
authorization 	to 	act 	on 	its 	behalf. 	We, 	therefore, 	find 	that
Keegan's 	January 	28 	speech 	was 	protected 	CTA 	activity.?
The 	District 	next 	disputes 	the 	ALJ's 	finding 	of 	a 	nexus
between 	Keegan's 	January 	14 	presentation 	and 	the 	District's
failure 	to 	provide 	her 	with 	an 	employment 	contract 	while
providing 	Couch 	with 	such 	a 	contract. 	We 	agree 	that 	the 	ALJ
erred 	in 	this 	portion 	of 	his 	analysis, 	and 	we 	expressly 	disavow
his 	reasoning. 	The 	conduct 	complained 	of 	in 	the 	charge
consists 	of 	the 	board's 	refusal 	to 	ratify 	the 	settlement
agreements. 	Thus, 	under 	Novato, 	a 	nexus 	must 	be 	established
between 	this 	conduct 	and 	Keegan's 	protected 	activity. 	The
District's 	earlier 	failure 	to 	provide 	Keegan 	with 	an 	employment
contract 	is 	irrelevant 	to 	this 	determination.
The 	District 	next 	excepts 	to 	the 	ALJ's 	finding 	that 	the
evidence 	is 	sufficient 	to 	raise 	an 	inference 	that 	Keegan's
January 	28 	speech 	was 	a 	motivating 	factor 	in 	the 	board's
decision 	to 	refuse 	to 	ratify 	Keegan 	and 	Couch's 	settlement
agreements. 	In 	support 	of 	this 	inference, 	the 	ALJ 	noted
Hannan's 	reaction 	to 	Keegan's 	presentation, 	evidence 	of
disparate 	treatment 	in 	that 	the 	District 	had 	previously
approved 	similar 	"back-door" 	contracts, 	and 	timing 	in 	that 	the
•
?Because 	we 	find 	that 	Keegan 	represented 	CTA, 	we 	need 	not
consider 	whether 	the 	Hourly 	Faculty 	Senate 	is 	an 	"employee
organization" 	within 	the 	meaning 	of 	the 	Act.
18

board
	deferred
	action
	on
	the
	settlement
	agreements
	until
	Keegan
had
	made
	her
	presentation.
The
	District
	denies
	any
	disparate
	treatment,
	claiming
	it
treated
	Keegan 	and 	Couch
	identically,
	it
	had
	never
	granted
contract 	status
	for
	senatorial 	service,
	and
	that
	any
	previous
back-door
	contracts
	were
	granted 	pursuant 	to 	court
	order
	or
through
	negotiations
	to 	resolve
	litigation.
	The
	District
argues
	that
	it
	did
	not
	depart
	from
	its
	established
	procedure
	of
requiring
	board
	approval 	for
	employment
	contracts,
	and
	did
	not
offer
	inconsistent
	or
	contrary
	justifications
	for
	its
	action.
It
	denies
	that
	the
	board 	unduly
	delayed
	in 	considering 	the
matter,
	claiming
	that
	any
	delay
	was
	consistent
	with
	its
	policy
of 	considering 	personnel 	matters
	once
	a 	month 	and 	was
reasonable 	in
	light
	of 	the 	complexity 	of 	the
	issue.
We
	find
	that
	an
	inference 	of
	unlawful
	motivation
	is 	fairly
raised
	by
	the
	facts
	presented 	here.
	In
	addition 	to 	the
	board's
knowledge
	of
	Keegan's
	protected
	activity
	occurring 	in
	its
presence,
	Hannan's
	statements 	following 	Keegan's 	speech
constitute
	strong 	evidence 	of 	unlawful 	motivation.
	Timing,
belated
	justification,
	and
	disparate 	treatment 	are 	also 	factors
which
	support
	this
	inference.
Immediately 	following 	Keegan's 	speech, 	the 	board 	adjourned
to 	executive 	session,
	with
	Hannan
	in 	attendance.
	Over
	the 	next
two
	days,
	Hannan
	told
	Keegan,
	Daniels
	and
	Pickering 	that
	Keegan
had 	"blown
	it"	
by 	her 	speech 	and 	would 	not 	get
	a
	contract 	as
	a
19

result. 	According 	to 	Pickering, 	Hannan 	said, 	"the 	board 	was
upset 	by 	her 	remarks, 	and 	.•• 	there 	would 	be 	no 	contract 	for
her." 	According 	to 	Couch, 	Hannan 	told 	him 	that 	Keegan's 	speech
had 	threatened 	the 	validity 	of 	the 	settlement 	agreements 	and
possibly 	undermined 	any 	contract 	being 	upheld 	but 	that 	every
effort 	would 	be 	made 	to 	protect 	Couch's 	contract 	because 	it 	was
already 	signed. 	According 	to 	Saling, 	after 	the 	board's 	action
on 	February 	4, 	Hannan 	told 	him 	that 	the 	board 	had 	decided 	not
to 	ratify 	the 	agreements 	because 	they 	were 	angry 	at 	Keegan 	for
her 	statements 	of 	January 	28.
Hannan's 	contemporaneous 	comments 	must 	be 	construed 	as
reflecting 	his 	perception 	of 	the 	board's 	discussions 	in
executive 	sessions 	at 	which 	he 	was 	present, 	both 	immediately
following 	Keegan's 	presentation 	on January 	28 	and 	again 	on
February 	4 when 	they 	decided 	to 	reject 	the 	agreements. 	These
statements 	provide 	strong 	evidence 	that 	the 	board 	reacted
angrily 	to 	Keegan's 	speech, 	and 	that 	the 	speech 	was 	a
motivating 	factor 	in 	its 	rejection 	of 	the 	settlement 	agreements.
While 	the 	District 	correctly 	states 	that 	it 	did 	not 	offer
inconsistent 	or 	contrary 	justifications 	for 	its 	actions, 	this
is 	true 	because, 	in 	fact, 	it 	offered 	no 	justification 	at 	the
time 	it 	took 	the 	action. 	As 	we 	found 	in 	Novato, 	supra, 	a
respondent's 	failure 	to 	offer 	justification 	to 	an 	aggrieved
employee 	at 	the 	time 	it 	takes 	action 	against 	him 	is 	relevant 	in
deducing 	improper 	motive. 	Indeed, 	in 	the 	instant 	case, 	the
20

District 	at 	no 	time 	provided 	any 	testimony 	or 	other 	direct
evidence 	of 	motivation. 	Rather, 	its 	claims 	in 	this 	regard 	are
presented 	entirely 	through 	legal 	argument. 	Such 	belated
justification 	appears 	to 	be 	an 	attempt 	to 	legitimize 	its
decision 	after 	the 	fact, 	and 	also 	supports 	an 	inference 	of
unlawful 	motivation. 	Novato, 	supra.
In 	addition, 	timing 	supports 	an 	inference 	of 	unlawful
motive, 	though 	not 	for 	the 	reasons 	stated 	by 	the 	ALJ. 	As
indicated 	above, 	we 	do 	not 	attach 	any 	significance 	to 	the 	date
on 	which 	Hannan 	presented 	the 	settlement 	agreements 	to 	the
board. 	However, 	we 	do 	find 	that 	the 	close 	proximity 	in 	time
between 	Keegan's 	presentation 	on January 	28 	and 	the 	board's
rejection 	of 	the 	settlement 	agreements 	on February 	4 evidences
unlawful 	motive.
Finally, 	we 	find 	evidence 	of 	disparate 	treatment 	in 	that
the 	District 	had 	previously 	approved 	other 	"back-door"
contracts 	and 	had 	never 	previously 	rejected 	such 	a 	contract
recommended 	by 	Ramstad. 	As 	the 	District 	claims, 	these 	prior
back-door 	contracts 	occurred 	either 	as 	a 	result 	of 	court 	orders
or 	through 	settlements, 	both 	involving 	hourly 	employees 	falling
within 	the 	Peralta 	rule. 	However, 	the 	District 	itself
characterizes 	the 	instant 	contracts 	as 	resulting 	from
settlement 	of 	grievances 	relating 	to 	Peralta.8 	Thus, 	the
Bzn 	its 	Answer 	to 	the 	Charge, 	the 	District 	"affirmatively
alleges 	the 	matters 	grieved 	related 	entirely 	to 	legal
21

contracts 	denied 	here 	are 	sufficiently 	similar 	to 	those
approved 	in 	the 	past 	to 	establish 	disparate 	treatment 	in 	this
case.
The 	fact 	that 	the 	board 	refused 	to 	ratify 	Couch's 	agreement
through 	he 	made 	no 	presentation 	before 	it, 	does 	not, 	as 	the
District 	argues, 	demonstrate 	either 	the 	absence 	of 	disparate
treatment 	or 	adherence 	to 	a 	policy 	against 	backdoor 	contracts.
Rather 	we 	must 	conclude, 	as 	did 	the 	ALJ, 	that 	the 	refusal 	to
ratify Couch's 	contract 	"was 	a 	pretext 	to 	retain 	consistency
between 	treatment 	of 	Keegan 	and 	Couch, 	where 	no 	justifiable
difference, 	other 	than 	Keegari's 	presentations, 	existed 	between
the 	two." 	Hannan's 	comments 	to Couch 	clearly 	indicated 	that
Couch's 	contract, 	as 	well 	as 	Keegan's, 	was 	threatened 	by
Keegan's 	speech. 	The 	elements 	of 	timing, 	belated
justification, 	and 	disparate 	treatment 	apply 	equally 	to 	both
employees.
For 	all 	of 	these 	reasons, 	the 	Board 	draws 	the 	inference
that 	Keegan's 	January 	28 	speech 	was 	a 	motivating 	factor 	in 	the
board's 	rejection 	of 	both 	Keegan's 	and 	Couch's 	settlement
agri::ements.
The 	District 	excepts 	to 	the 	ALJ's 	finding 	that 	it 	failed 	to
rebut 	the 	inference 	of 	unlawful 	motivation. 	It 	reasserts 	its
interpretations 	of 	Education 	Code 	sections 	87482 	and 	87604 	and
the 	California 	Supreme 	Court 	decision 	in 	Peralta 	Federation 	of
Teachers 	v. 	Peralta 	Community College 	District."
22

argument,
	rejected
	by
	the
	ALJ,
	that
	the
	board
	refused 	to
	ratify
the
	settlement
	agreements 	because
	of
	its
	opposition 	to
"back-door
	contracts,"
	and
	that
	it
	would
	have
	rejected 	the
contracts
	even
	in 	the
	absence
	of
	Keegan's
	presentation.
We
	are
	unpersuaded
	by
	the
	District's
	argument.
	Though
	the
District
	proved
	that
	it
	had
	a
	general
	policy 	against
"back-door"
	contracts,
	it
	failed
	to
	produce
	any
	evidence
	that
this
	policy
	played
	any
	part
	in 	the
	board's 	decision.
	Rather,
the 	evidence
	indicates 	that
	an
	exception
	to
	the
	policy
	had
	been
established
	in 	circumstances
	similar 	to
	those 	presented
	here,
and
	that
	the
	District
	administrators
	acted 	as
	if
	these
settlement
	agreements
	fell
	within
	that
	estabished 	exception
	and
were
	not
	subject 	to 	the 	general 	policy.
Hannan 	had 	been 	employed
	as
	District
	Director 	of
Administrative 	Services 	for
	six 	years,
	Ramstad
	as
	Director
	of
Personnel 	Services 	for
	seven
	years.
	If
	the
	board
	policy
opposing 	back-door
	contracts 	applied
	so 	as
	to 	prevent 	approval
of 	these 	settlement
	agreements,
	certainly
	Hannan 	and 	Ramstad
would 	have 	been 	aware
	of
	it.
	However,
	their 	entire
	course 	of
conduct,
	and
	that
	of 	the
	Districts'
	counsel,
	is
	inconsistent
with 	such
	application 	of 	the 	policy.
Hannan 	made
	the
	offer 	of 	60-percent 	contracts
	on
December
	2.
	The
	District's
	counsel 	prepared 	settlement
agreements
	and
	signed
	them, 	along 	with 	Hannan,
	for 	the
District.
	Hannan
	subsequently 	told 	Pickering 	that 	contracts
23

for
	Couch 	and 	Keegan 	were
	being
	prepared.
	On
	January
	21,
Hannan
	told
	Keegan
	that
	what
	she
	had
	received
	was
	"the
	same
	as
a
	contract."
	On
	January
	22,
	Couch
	executed
	a
	contract
	of
employment 	which
	was
	also
	signed
	by 	Ramstad 	and
	which
	stated,
in
	part,
	"your
	acceptance
	of
	this
	offer 	will
	be
	considered
binding."
	That
	same
	day,
	Hannan
	congratulated
	Couch 	on
	his
contract,
	saying
	"[I]t
	won't
	be
	long
	before
	you'll
	have
	a
full-time."
	At
	no
	time
	did
	Hannan,
	Ramstad
	or 	the
	District's
counsel 	suggest
	any
	potential 	conflict
	with
	a
	board
	policy
against
	approving 	such
	contracts.
Contrary
	to 	the
	District's
	contention,
	the
	absence
	of 	proof
of
	board
	knowledge
	of
	this
	administrative
	course
	of
	conduct
does
	not 	render
	it
	irrelevant.
	It
	is
	relevant, 	probative
evidence
	that,
	prior
	to January
	28,
	Hannan, 	Ramstad 	and
	the
District's
	counsel,
	all
	of
	whom
	were
	in
	a
	position 	to
	be
knowledgeable
	regarding
	District 	policies,
	were 	unaware
	of
either
	the 	existence
	of
	a
	firm
	policy 	against
	back-door
contracts
	or
	its
	applicability 	to 	these 	circumstances. 	Rather,
this
	extensive 	course 	of 	conduct 	evidences
	an
	understandiryg
that
	these 	settlement
	agreements,
	like
	the
	earlier 	Peralta
cases, 	constituted
	an
	exception 	to 	the 	general 	policy.
The
	District
	f~iled 	to 	explain
	why
	these 	administrators
	and
legal
	counsel 	labored 	under 	such 	misapprehension 	or
	why
	these
contracts
	did 	not
	come
	within 	the 	Peralta 	exception. 	In
addition, 	the
	District 	failed 	to 	produce 	any
	direct
	evidence
24

that 	the 	board 	relied 	on 	the 	policy 	in 	this 	case. 	The 	notice
of 	the 	board's 	action 	received 	by 	Couch 	and 	Keegan 	on
February 	5 	contains 	no 	statement 	of 	the 	reason 	for 	the 	action.
No 	minutes 	of 	the 	board 	meeting 	were 	introduced 	into 	evidence;
no member 	of 	the 	board 	testified. 	While 	Hannan 	testified 	as 	to
the 	existence 	of 	the 	policy, 	he 	did 	not 	indicate 	that 	the 	board
considered 	the 	policy 	in 	reaching 	its 	decision, 	though 	he 	was
present 	at 	its 	meeting.
The 	burden 	of 	rebutting 	the 	inference 	of 	unlawful 	motive 	is
placed 	on 	the 	employer 	in 	"recognition of 	the 	practical 	reality
that 	the 	employer 	is 	the 	party 	with 	the 	best 	access 	to 	proof 	of
its 	motivation." 	Wright 	Line, 	supra, 	251 	NLRB 	at 	1087-1088.
Given 	the 	District's 	access 	to 	evidence 	of 	motivation, 	proof 	of
the 	mere 	existence 	of 	a 	general 	policy 	fails 	to 	satisfy 	its
burden 	in 	the 	circumstances 	presented 	here. 	In 	sum, 	the
District 	has 	failed 	to 	show 	that 	its 	action 	would 	have 	been 	the
same 	absent 	Keegan's 	protected 	activity. 	We, 	therefore, 	affirm
the 	ALJ's 	conclusion 	that 	the 	District 	violated 	subsection
3543.S(a).
REMEDY
~he ALJ 	ordered 	the 	District 	to 	offer 	Keegan 	and 	Couch
contract 	status 	pursuant 	to 	the 	settlement 	agreements
retroactive 	to 	the 	term 	beginning 	February 	26, 	1981, 	and 	to
tender 	back 	pay 	with 	interest 	retroactive 	to 	that 	date.
25

The 	District 	excepts, 	claiming 	first 	that 	PERB 	lacks
jurisdiction 	to 	order 	the 	employment 	of 	a 	particular
individual, 	a 	matter 	reserved 	exclusively 	to 	the 	school 	board
by 	the 	Education 	Code.
This 	exception 	is 	groundless. 	PERB 	is 	statutorily
empowered 	to 	issue 	a 	decision 	and 	order
directing 	an 	offending 	party 	.•• 	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. 	(Emphasis
added.) 	(Subsection 	3541.S(c) .)
We 	have 	previously 	applied 	this 	section 	to 	order 	the 	hiring 	of
a 	teacher 	who 	was 	discriminatorily 	refused 	employment, 	in 	Santa
Clara 	Unified 	School 	District 	(9/26/79) 	PERB 	Decision No. 	104.
Certainly, 	we 	have 	jurisdiction 	to 	fashion 	a 	similar 	remedy
here.
The 	District 	proposes 	an 	alternative 	remedy 	ordering 	it 	to
"reconsider" 	the 	settlement 	agreements 	without 	consideration 	of
Keegan's 	activity. 	The 	limited 	remedy 	proposed 	by 	the 	District
fails 	to 	provide 	full 	compensation, 	since 	we 	have 	found 	that
Couch 	and 	Keegan 	were 	illegally 	deprived 	of 	the 	contracts
themselves, 	not 	merely 	the 	opportunity 	to 	be 	fairly 	considered
for 	them. 	Compare 	Lemoore 	Union 	High 	School 	District
(12/28/82) 	PERB 	Decision No. 	271 	and 	Eastern 	Sierra 	Unified
School 	District 	(5/24/8-3) 	PERB 	Decision 	No. 	312.
Finally, 	the 	District 	argues 	that 	if 	Keegan 	and 	Couch 	are
given 	contract 	status, 	it 	should 	have 	prospective 	effect 	only
26

since 	otherwise 	they 	may 	gain 	tenure 	without 	undergoing
statutory 	or 	District 	evaluation 	procedures. 	We 	find 	merit 	in
this 	claim.
The 	settlement 	agreements 	unlawfully 	rejected 	by 	the 	board
would 	have 	granted 	Couch 	and 	Keegan 	contracts 	for 	a 	one-year
term. 	The 	Education 	Code 	provides 	that 	"contract" 	employees 	in
a 	community 	college district 	must 	serve 	a 	probationary 	period
of 	no 	less 	than 	one 	year 	nor 	more 	than 	two 	years 	before
acquiring 	"regular" 	tenured 	status. 	After 	completion 	of 	both
the 	first 	and 	second 	contract 	year, 	certain 	evaluation
requirements 	must 	be 	satisified 	(section 	87607) 	before 	the
governing 	board 	"at 	its 	discretion" 	decides 	whether 	or 	not 	to
employ 	a 	contract 	employee 	as 	a 	regular 	employee 	(sections
87608, 	87609)-. 	The 	governing 	board 	must 	give 	written 	notice 	of
its 	decision 	and 	the 	reasons 	therefor 	(section .87610). 	Failure
to 	give 	such 	notice 	"shall 	be 	deemed 	a 	decision 	to 	emp~oy 	him
as 	a 	regular 	employee 	for 	all 	subsequent 	academic 	years."
Considering 	these 	sections, 	in Mt. 	San 	Antonio College
Faculty Assn. 	v. 	Board 	of 	Trustee~ 	(1981) 	125 	Cal.App.3d 	27,
34-35 	[177 	Cal.Rptr. 	810], 	the 	Court 	of Appeal 	held 	as 	follows:
By 	labelling 	the 	position 	probationary, 	the
Legislature 	had 	clearly 	advised 	the 	employee
that 	the 	position 	is 	neither 	vested 	nor
permanent. 	Probation 	means 	the 	teacher 	is
on 	trial 	- 	his 	competence 	and 	suitability
remaining 	to 	be 	determined. 	(See 	Websters
New 	Internat. 	Diet. 	(3d 	ed. 	1961) 	p. 	1806.)
Probationary 	is 	the 	opposite 	of 	vested.
Although 	the 	label 	may 	not 	be 	determinative,
27

it 	is 	strong 	indication 	of 	legislative
intent 	not 	to 	grant 	a 	vested 	right.
. 	. 	. . 	. . 	. 	. 	. 	. 	. . . . 	. . 	. 	. 	. . 	. 	.
The 	Education 	Code 	leaves 	the 	final
determination 	as 	to 	rehiring 	probationary
teachers 	with 	the 	governing 	board.
Here, 	the 	settlement 	agreements 	granted 	contract 	status
effective 	January 	26, 	1981. 	An 	order 	granting 	contract 	status
retroactive 	to 	this 	date, 	which 	is 	more 	than 	two 	years 	ago,
would 	in 	fact 	result 	in 	the 	granting 	of 	"regular" 	tenured
status, 	pursuant 	to 	the 	above-cited 	Education 	Code 	provisions.
Thus, 	tenure 	would 	be 	granted 	without 	satisfaction 	of 	the
specified 	evaluation 	requirements 	and 	without 	the 	final·
determination 	of 	the 	governing 	board 	as 	required 	by 	the
Education Code 	and 	Mt. 	San Antonio 	College 	Faculty 	Assn. 	v.
Board 	of 	Trustees, 	supra.
Moreover, 	the 	settlement 	agreements 	granted 	only 	contract
or 	probationary 	status. 	Because 	the 	award 	of 	tenure 	is 	a
matter 	within 	the 	discretion 	of 	the 	board 	of 	trustees, 	it 	is
not 	a 	benefit 	which 	would 	have 	accrued 	automatically 	but 	for
the 	violation. 	Thus, 	an 	order 	having 	the 	effect 	of 	granting
tenure 	would 	provide 	more 	than 	the 	employees 	would 	have
received 	in 	the 	absence 	of 	the 	District's 	unlawful 	conduct.
(Compare 	Santa 	Clara, 	supra, 	where 	we 	found 	that 	the
discriminatee 	was 	entitled 	to 	full-time 	employment 	where 	the
part-time 	position 	wrongfully 	denied 	had 	become 	full 	time.)
28

Therefore, 	we 	modify 	the 	ALJ's 	proposed 	order 	and 	direct
the 	District 	to 	offer 	contract 	status 	prospectively 	beginning
next 	semester. 	However, 	we 	order 	back 	pay 	with 	interest
retroactively 	to 	January 	26, 	1981 	to 	compensate 	Couch 	and
Keegan 	for 	the 	difference 	between 	what 	they 	actually 	earned 	and
what 	they 	would 	have 	been 	paid 	as 	contract 	employees 	absent 	the
District's 	refusal 	to 	ratify 	the 	settlement 	agreements.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law, 	and 	the
entire 	record 	in 	this 	case 	and 	pursuant 	to 	Government 	Code
section 	3541.S(c) 	of 	the 	Educational Employment 	Relations 	Act,
it 	is 	hereby ORDERED 	that 	the 	San 	Diego Community 	College
District 	and 	its 	representatives 	shall:
1. 	CEASE 	AND 	DESIST 	FROM:
Imposing 	or 	threatening 	to 	impose 	reprisals 	on Maureen
Keegan, 	discriminating 	or 	threatening 	to 	discriminate 	against
Maureen 	Keegan 	or 	otherwise 	interfering 	with, 	restraining, 	or
coercing Maureen 	Keegan 	because 	of 	the 	exercise 	of 	her 	rights
to 	form, 	join, 	and 	participate 	in 	the 	activities 	of 	employee
organizations 	of 	her 	own 	choosing 	for 	the 	purpose 	of
representation 	in 	all 	matters 	of 	employer-employee 	relations.
2. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
a. 	Offer 	Maureen 	Keegan 	and 	John 	Couch 	contract
status 	pursuant 	to 	the 	executed 	settlement 	agreements,
beginning 	the 	next 	school 	year.
29

b.
	Tender
	to
	Maureen 	Keegan
	and
	John
	Couch
	a
	back
payment
	award 	which
	reflects
	an
	amount
	equal
	to 	that
	which
	they
would
	have 	been
	paid 	absent
	the
	District's
	refusal
	to
	ratify
the
	settlement
	agreements, 	beginning
	on
	January
	26, 	1981
	until
the
	present,
	with
	payment
	of
	interest 	at
	seven
	percent 	per
annum.
c.
	Within
	thirty-five
	(35)
	days
	after
	the
	date 	of
service
	of
	this
	Decision,
	post
	copies 	of 	the
	Notice
	to
Employees
	attached
	as
	an
	appendix
	hereto.
	Such
	posting
	shall
be
	maintained
	for
	at 	least 	thirty
	(30)
	consecutive
	workdays
	at
its
	headquarters
	offices
	and
	in
	conspicuous
	places
	at
	the
locations
	where
	notices 	to
	certificated
	employees
	are
customarily posted.
	Reasonable
	steps
	shall
	be 	taken
	to
	insure
that
	it
	is
	not
	reduced
	in
	size,
	defaced,
	altered
	or 	covered
	by
any
	material.
d. 	Written
	notification
	of
	the 	actions
	taken
	to
comply
	with
	this
	Order
	shall
	be
	made
	to 	the
	Los
	Angeles
Regional
	Director 	of 	the 	Public
	Employment
	Relations
	Board
	in
accordance 	with her
	instructions.
Member
	Burt 	joined 	in
	this
	Decision.
Chairperson 	Gluck's 	dissent
	begins
	on
	page 	31.
30

GLUCK,
	Chairperson,
	dissenting:
	It
	is
	well
	established
that
	adverse
	employer
	action
	which
	is
	motivated
	by
	"anti-union"
animusl	
violates
	EERA
	subsection
	3543.S(a)
.2	
Thus,
	the
employer
	may
	successfully
	defend
	against
	an
	unfair
	practice
charge 	of
	this
	kind
	by
	demonstrating
	some
	legitimate
	reason 	for
its
	action.
	But, 	the
	threshold 	question
	- 	and
	the 	charging
party's
	burden
	to
	prove
	by 	a
	preponderance
	of 	the 	evidence
is
	whether 	such
	unlawful
	intent 	existed.
-
As
	the 	majority 	points 	out,
	proof 	of
	unlawful 	motive 	can
rarely
	be
	established
	by
	direct
	evidence. 	Consequently,
	where
discrimination
	or
	reprisal 	is
	claimed,
	it
	is 	this
Board's 	task
to
	determine
	from
	the 	surrounding
	factual
	circumstances
	whether
the
	employer's
	action
	was
	animated
	by 	an
	intention 	to
	"punish"
the 	charging 	party 	for
	its
	exercise 	of
	rights
	protected
	by
EERA. 	Not
	infrequently,
	such
	a
	determination 	requires 	the
interpretation
	of 	contradictory 	or
	ambiguous
	evidence.
Here,
	two
	aspects 	of 	the 	evidence
	which
	the 	majority 	finds
damaging
	to 	the
	District's
	defense 	are
	Hannan's
	criticism 	of
Keegan
	following 	her 	appearance
	at
	the 	January
	28
	Trustees'
lThe 	phrase 	"anti-union
	animus"
	represents
	something
	more
than
	an
	attitude
	towards 	employee
	organizations.
	It
	speaks 	to
hostility
	toward 	the 	exercise 	of
	any 	employee
	or
	organizational
right
	granted
	by EERA.
2Novato
	Unified 	School
	District
	(4/30/82)
	PERB
	Decision
No. 	210 	and
	cases 	cited 	therein.
-31-

meeting3	
and
	the
	proximity
	of
	time
	between
	that
	appearance
and
	the
	Trustees'
	rejection
	of
	the
	two
	contracts.
	I 	do
	not
find
	either
	to
	be
	that
	telling.
Eannan's
	remarks
	are
	ambiguous.
	The
	interpretation
	given
them 	by
	the
	majority
	is
	unquestionably
	plausible
	and
	provides
strong
	support 	for
	the
	conclusion
	the
	majority 	reaches.
However,
	I
	find 	another
	interpretation
	to
	be
	at 	least
	equally
plausible
	and
	less 	baleful.
	Hannan 	had
	arranged 	for 	these
contracts,
	had
	promised
	that
	they
	would 	be
	approved,
	and
	had
congratulated
	Couch 	who
	had
	already
	signed
	his.
	His 	remarks
following 	her
	presentation,
	reflect
	unmistakable
	personal
frustration
	over 	the
	disastrous
	effect
	of
	Keenan's 	appearance
at
	the 	Trustees'
	meeting.
	They
	also
	reflect
	that
	the 	Trustees
were
	angered, 	but 	not
	what
	they
	were
	angry
	about. 	Keenan's
	own
testimony 	sheds
	some
	light
	on
	that.
She
	testified
	that
	when
	she
	stated 	to
	the
	Trustees
	that
"no 	one
••.
wants 	back-door
	contracts,
	but
	if
	that
	was
	the 	only
way
.••
,"
	the 	Trustees
	"showed
	great 	consternation
	at
	the
mention
	of
	back-door
	contracts."
	(Emphasis
	supplied.)
	There
	is
also
	testimony
	that
	Hannan
	referred 	to 	her
	comments
	as
3The 	ALJ
	credited
	CTA
	testimony
	that
	Hannan 	had
	said 	that
Keegan 	"blew
	it"
	by
	her 	"injudicious 	remarks,"
	had
	upset 	the
Trustees,
	and
	that 	there
	would 	be 	no
	contract 	for 	her.
	Hannan
denied 	having
	made 	such
	statements, 	but
	it
	is
	not 	necessary 	to
reject
	the
	credibility
	finding 	to 	reach 	the
	result 	presented
here.
-32-

threatening 	the 	validity 	of 	those 	agreements. 	In 	view 	of 	some
question 	about 	the 	propriety 	of 	granting 	the 	contracts 	in 	issue
here, 	these 	bits 	of 	evidence 	raise 	a 	question 	as 	to 	whether 	the
Trustees' 	action 	was 	meant 	to 	discipline 	Keegan 	or 	whether 	it
was 	prompted 	by 	concern 	that 	the 	contracts, 	submitted 	to 	public
exposure, 	were 	improper, 	or 	violated 	hiring 	policy.
I 	see 	the 	answer 	to 	that 	question 	as 	critical 	to 	the
outcome 	of 	this 	case. 	An 	employer's 	reaction 	to 	protected
speech 	may 	be 	adverse 	to 	the 	speaker's 	interests, 	yet 	not 	be
unlawful 	within 	the-meaning 	of 	subsection 	3543.S(a). 	To 	find 	a
violation 	of 	that 	provision 	based 	on 	a 	claim of 	reprisal, 	it 	is
necessary 	that 	the 	adverse 	action 	be 	retaliatory, 	intended 	as
"punishment" 	for 	the 	act 	of 	exercising 	the 	right 	of 	speech.
Absent 	such 	underlying 	intent, 	the 	adverse 	effect 	of 	employer
action 	would 	be 	only 	coincidental 	or 	"accidental." 	For
example, 	assume 	unlawful 	financial 	support 	given 	a 	union 	by 	the
employer; 	further, 	that 	an 	official 	of 	the 	union 	had
unintentionally 	revealed 	that 	fact 	at 	a 	public meeting 	with 	the
consequence 	that 	the 	employer 	then 	withdrew 	its 	support. 	The
adverse 	impact 	on 	the 	union 	could 	well 	have 	resulted 	from 	the
employer's 	effort 	to 	correct 	its 	mistake 	rather 	than 	from 	an
intention 	to 	punish 	the 	union 	official 	for 	his 	indiscretion.
In 	Novato, 	PERB 	presented 	a 	number 	of 	criteria 	by 	which 	the
presence 	of 	unlawful 	motive 	could 	be 	tested. 	One, 	proximity 	of
time, 	is 	cited 	by 	the 	majority. 	I 	find 	this 	test 	inutile
-33-

here.
	The
	Trustees
	were
	obligated 	to
	act
	on
	the
	proposed
contracts.
	The
	matter
	was
	placed
	on
	its
	February	
4	
agenda,
	one
week
	after
	Keegan's
	appearance.
	One
	may
	logically
	assume
	that
the
	item
	was
	expedited
	as
	a
	consequence
	of
	her 	appearance
without
	concluding
	that
	it
	was
	expedited 	for
	the 	purpose
	of
reprisal.
	If
	the
	Trustees
	became
	concerned 	about 	the
	propriety
of
	these
	agreements
	on
	January
	28,
	when 	Keegan
	spoke,
	it
	would
not
	be
	unexpected
	that
	they
	would
	act
	on 	them
	as
	soon
thereafter
	as
	practical.
Furthermore,
	I
	find
	less 	significance
	in 	the
	timing
	of
employer
	action4	
which
	was
	anticipated
	before 	the
	protected
activity
	took
	place
	than
	that
	which 	was
	not 	expected
	and
appears
	to
	have
	occurred
	because
	of 	the 	protected
	activity.
I
	find 	the 	other
	evidence
	essentially
	directed
	towards
	the
undisputed
	fact 	that
	back-door
	contracts
	had
	been
	issued
	and
approved
	in 	the
	past.
	It
	makes 	no
	significant 	contribution 	to
the 	determination 	of 	the 	reason
	why
	the 	Trustees 	rejected
	these
two
	agreements.
It
	is
	true 	that
	the
	District
	offered
	no
	explanation 	for
	its
action.
	Its
	silence
	would
	undoubtedly
	be
	fatal
	had
	the
charging 	party 	established
	a
	prima
	facie 	case 	of 	discrimination
or
	reprisal
	against
	Keegan
	because
	of 	her
	exercise 	of
	a
4r
	refer 	to 	the 	matter 	of 	taking 	action, 	not 	the 	nature
of 	the 	action 	taken.
-34-

protected 	right 	to 	represent 	CTA on 	a 	matter 	of
employer-employee 	relations. 	But 	I 	do 	not 	find 	that 	to 	be 	the
case. 	CTA 	has 	presented 	an 	ambiguous 	and 	inconclusive 	body 	of
evidence 	from 	which 	different 	inferences 	may 	be 	drawn. 	For 	my
part, 	I 	cannot 	find 	in 	that 	evidence 	a 	connection 	between
Keegan's 	remarks 	and 	the 	Trustees' 	action 	which 	constitutes 	the
kind 	of 	nexus 	contemplated 	by 	Novato. 	I 	would 	dismiss 	the
complaint.
-35-

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. 	LA-CE-1410,
San 	Diego 	Community College 	Teachers Association, 	CTA/NEA 	v.
San 	Diego Community College 	District, 	in 	which 	all 	parties 	had
the 	right 	to 	participate, 	it 	has 	been 	found 	that 	the 	San 	Diego
Community 	College 	District 	violated 	the 	Educational Employment
Relations 	Act, 	Government 	Code 	subsection 	3543.S(a).
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
this 	Notice 	and 	we 	will 	abide 	by 	the 	following. 	We 	will:
1. 	CEASE 	AND 	DESIST 	FROM:
Imposing 	or 	threatening 	to 	impose 	reprisals 	on
Maureen 	Keegan, 	discriminating 	or 	threatening 	to 	discriminate
against Maureen 	Keegan 	or 	otherwise 	interfering 	with,
restraining, 	or 	coercing 	Maureen 	Keegan 	because 	of 	the 	exercise
of 	her 	rights 	to 	form, 	join, 	and 	participate 	in 	the 	activities
of 	employee 	organizations 	of 	her 	own 	choosing 	for 	the 	purpose
of 	representation 	in 	all 	matters 	of 	employer-employee 	relations.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
a. 	Offer 	Maureen 	Keegan 	and 	John 	Couch 	contract
status 	for 	the 	next 	school 	year.
b. 	Tender 	to Maureen 	Keegan 	and 	John 	Couch 	a 	back
payment 	award 	which 	reflects 	an 	amount 	equal 	to 	that 	which 	they
would 	have 	been 	paid 	as 	contract 	employees 	beginning 	on
January 	26, 	1981 	until 	the 	present, 	and 	with 	payment 	of
interest 	at 	seven 	percent 	per 	annum 	of 	the 	net 	amount 	due.
Dated: 	SAN 	DIEGO COMMUNITY 	COLLEGE 	DISTRICT
By .,,-~--.--..-::e------.,,_.,....,..-----
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED 	FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING 	AND
MUST 	NOT 	BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED 	OR COVERED BY ANY
MATERIAL.