Inglewood Unified School District (PERB 0593E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
INGLEWOOD 	TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
INGLEWOOD UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-2089
PERB 	Decision No. 	593
October 	15, 	1936
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Appearances; 	A. 	Eugene Huguenin, 	Jr., 	Attorney for California
Teachers Association, 	CTA/NEA; 	Howard M. 	Knee, 	Attorney for
Inglewood 	Unified 	School 	District.
Before Hesse, 	Chairperson; Morgenstern and Burt, 	Members.
DECISION
BURT, 	Member: 	This 	case comes 	before the Public Employment
Relations 	Board 	(PERB 	or 	Board) 	on exceptions 	filed 	by 	the
Inglewood Unified 	School 	District 	(District) 	to 	the 	attached
proposed decision of 	an 	administrative 	law judge 	(ALJ). 	The
ALJ found that the District violated section 3543.5(a), 	(b) 	and
(c) 	of 	the Educational Employment Relations Act 	(EERA)1 by
failing 	to 	implement 	an 	agreed-upon bell 	schedule, 	by
unilaterally 	imposing 	a 	rule 	of 	prior 	approval 	for 	use 	of
mailboxes 	at 	Inglewood 	High 	School, 	and 	by disciplining
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	statutory 	references 	are 	to 	the Government 	Code
unless 	otherwise 	noted.
)
_______ )
1

Robert 	Dillen 	for 	refusing 	to 	follow that 	rule. 	The 	Inglewood
Teachers Association, 	CTA/NEA 	(Association, 	CTA or 	ITA) 	does
not 	except 	to 	the ALJ's 	dismissal 	of 	charges 	that 	the District
also 	violated 	the 	EERA 	by 	imposing 	unfavorable 	class
assignments 	on Dillen, 	or to 	the ALJ's dismissal 	of 	charges
that 	a 	District 	principal 	threatened 	the Association 	president.
We 	have 	reviewed 	the ALJ's 	decision 	in 	light 	of 	the
District's 	exceptions, 	CTA's 	response 	thereto 	and 	the 	record 	as
a whole, 	and 	affirm it 	as modified below.
DISCUSSION
The ALJ's 	findings 	of 	fact 	are 	free of 	prejudicial 	error,
and we 	therefore 	adopt 	his 	findings 	of 	fact 	as 	set 	forth 	in 	the
attached decision 	as 	the 	findings 	of 	the 	Board 	itself. 	We 	also
affirm the ALJ's 	conclusions 	of 	law with 	regard 	to 	the
District's 	regulation of mailbox use by the Association, 	its
discipline of Robert Dillen, 	and 	its 	failure to 	implement 	a
modified 	bell 	schedule 	agreed 	to 	by the 	parties. 	For 	the
reasons 	set 	forth below, 	however, 	we modify the ALJ's 	proposed
remedy with 	regard 	to 	the 	last 	violation.
On September 	14, 	1983, 	the 	ITA filed unfair practice charge
No. 	LA-CE-1841, 	alleging that the District unilaterally
eliminated 	a 	15-minute 	student 	nutrition 	period 	that 	had 	been
duty-free 	time 	for 	teachers. 	The District 	abolished the
student 	nutrition 	period 	and 	added 	five minutes 	to 	the 	lunch
period, 	one minute to each class 	period, 	and one minute to each
passing 	period.
N
	2

Pursuant 	to 	settlement 	talks 	involving 	that 	charge, 	the
parties 	agreed 	in February 1984 	as 	follows:
Effective Fall 	semester of 	1984, 	the passing
period between periods 	3 	and 4 	at 	the high
schools 	will 	be 	increased 	by 	six minutes 	and
the 	lunch 	period will 	be 	reduced 	by 	five
minutes 	and 	the 	third 	period 	by one minute.
The Association 	then dropped 	the 	related 	charge.
In May 1984, 	the parties began negotiating on 	reopeners,
including 	the 	longer 	day 	and 	extended 	year 	encouraged 	by 	Senate
Bill 	813. 	However, 	by the beginning of 	school 	in September,
the 	parties 	had 	not yet 	reached 	agreement. 	Impasse was
declared by PERB on August 	28, 	1984.
When the 	1984-85 	school year 	began, 	the bell 	schedule did
not 	reflect 	the parties' 	agreement of 	the previous 	spring. 	The
District 	explained 	that, 	since 	it 	expected 	to 	reach 	agreement
with 	the Association 	soon concerning 	the 	extended day, 	the
District 	wanted 	to 	avoid 	inconveniencing 	students 	by 	changing
the bell 	schedule once 	at 	the beginning 	of 	the year, 	and 	again
when 	the 	parties 	reached 	agreement 	in negotiations.
The ALJ 	found 	and we 	agree 	that 	the 	District 	violated 	the
EERA by 	its 	refusal 	to 	implement 	the 	agreed-upon bell 	schedule
in the 	fall 	of 	1984. 	In answer 	to 	the District's 	argument 	that
PERB does 	not 	have 	jurisdiction 	to 	enforce 	agreements 	between
the parties, 	we note, 	as did the ALJ, 	that the breach of 	an
agreement 	may 	also 	be 	a 	violation of 	EERA where 	the 	breach
amounts 	to 	a change of 	policy. 	See Grant Joint Union
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High School District 	(1982) 	PERB Decision No. 	196. 	Here, 	the
District's 	action 	had 	a 	generalized 	effect 	and 	continuing
impact upon bargaining unit members 	and was, 	therefore, 	a
violation of EERA section 3543.5(a), 	(b) 	and 	(c). 	We also join
the ALJ 	in 	rejecting 	the 	District's 	argument 	that 	the 	harm
resulting 	from 	its 	failure 	to 	abide 	by 	the 	settlement 	agreement
was 	de minimis. 	All unit members 	at 	the 	two 	high 	schools were
affected 	by 	the District's 	conduct 	and 	the 	resulting 	harm,
though small, 	did affect the teachers' 	duty-free time.
To 	remedy the District's 	unlawful 	conduct, 	the ALJ ordered
the District 	to make the 	affected 	teachers whole 	for 	loss 	of
the 	seven minutes 	per day of 	duty-free 	time. 	Pursuant 	to 	the
Board's 	decision 	in Corning 	Union High 	School 	District 	(1984)
PERB Decision No. 	399, 	the ALJ ordered the District 	to provide
either 	time 	off 	or 	monetary compensation 	for 	the 	additional
time worked. 	The District 	does 	not 	except 	to 	the 	form of 	the
remedy. 	Nor does 	it dispute 	the 	fact 	that 	the elimination of
duty-free 	time 	and 	the 	substitution of 	instructional 	time 	is
within 	scope.2 The 	thrust 	of 	the District's 	argument 	is
that, 	if 	repudiation of 	the 	agreement 	is 	found to be 	a
2 In 	San Mateo 	City School 	District 	(1980) 	PERB Decision
No. 	129, 	the Board discussed this 	issue at 	length, 	and
concluded 	that 	"to 	the 	extent 	that 	a 	change 	in 	the 	length 	of
the 	teachers 	instructional 	day affects 	the 	length of 	the
working 	day or 	existing duty-free 	time, 	the 	subject 	is
negotiable." 	Although 	that 	decision was 	vacated 	by 	the
California 	Supreme Court, 	and 	remanded 	to 	the 	Board 	for
4

violation, 	the Board must 	find 	there was 	an 	increase of 	one
rather 	than 	seven minutes 	per 	day.
reconsideration, 	the Board's 	subsequent 	Healdsburg Union High
School 	District/Healdsburg 	Union 	School 	District/San Mateo 	City
School District 	(1984) 	PERB Decision No. 	375 	took the 	same
position. 	See 	also 	Sutter Union High School 	District 	(1981)
PERB 	Decision No 	175; 	Victor Valley Union High 	School 	District
(1986) 	PERB Decision No. 	565.
Information 	in 	the 	record 	about 	the 	actual 	result 	of 	the
various 	changes 	is 	inconclusive. 	In the Association's 	original
charge 	in Case No. 	LA-CE-1841, 	the District was 	alleged to have
unilaterally 	eliminated 	a 	15-minute 	duty-free 	nutrition
period. 	Five minutes were 	added 	to 	the 	lunch period, 	one
minute 	to 	each 	passing 	period 	and 	one minute 	to 	each 	class
period. 	This 	description of what 	happened 	occurs 	various
places 	in the 	record; 	however, 	there 	is no numerical breakdown
of 	the 	actual 	amount of 	duty-free 	time 	lost due 	to 	the change.
There 	are 	six class 	periods. 	The 	teachers 	normally teach
during 	five 	of 	them, 	so 	presumably the 	change 	resulted 	in 	five
additional minutes of teaching time. 	However, 	there is no
mention 	of 	lunch duty or 	hall 	duty during 	passing 	periods, 	and
no 	evidence 	indicating 	whether 	these 	are 	considered 	duty-free
time.
The 	settlement 	agreement 	reached 	in 	the 	spring 	of 	1984
provided 	that 	the 	District would 	increase 	the 	passing 	period
between periods 	three 	and 	four 	by six minutes, 	and 	reduce 	the
lunch 	period 	by 	five minutes 	and 	the 	third 	period 	by one
5

minute. 	The ALJ 	found 	that 	the 	consequence of 	the 	District's
failure 	to 	implement 	this 	agreement was 	a 	loss 	of 	seven minutes
per 	day of 	duty-free 	time. 	He calculated 	that 	six minutes 	were
to 	be 	added 	to 	the 	passing 	period 	between 	the 	third 	and 	fourth
periods 	and, 	in addition, 	the third period was 	to be 	reduced by
one minute.
The ALJ's 	calculations 	are 	apparently based 	upon 	testimony
of Genevieve Neustadter, 	the 	ITA president. 	Neustadter 	is 	not
a 	high 	school 	teacher. 	She became 	aware of 	problems with the
bell 	schedule 	through Dillen, 	who 	raised 	the matter 	at 	an
Association meeting. 	When 	asked what 	action 	she 	took when 	she
found 	out 	that 	the 	agreement 	had 	not 	been 	implemented,
Neustadter 	replied 	that 	she 	spoke 	first with 	the
superintendent, 	and 	"raised the question 	as 	to why the 	seven
minutes 	had 	not 	been put 	into 	the high 	school 	schedules 	as 	the
agreement 	had 	stated." 	Neustadter 	next 	raised 	the matter 	at 	a
school 	board meeting. 	She 	then met 	again with 	the
superintendent, 	who 	said that:
. 	. 	. 	because we were negotiating at that
time, 	the 	longer day, 	longer year schedule,
that 	he would wait 	until 	we were 	settled 	on
the 	longer 	day 	and 	that 	the 	7 minutes 	would
be 	incorporated 	into 	the 	schedule 	at 	the
time.
Notwithstanding 	Neustadter's 	repeated 	references 	to 	the 	"seven
minute 	nutrition 	period 	that 	had 	been 	eliminated," 	other
testimony, 	including 	the Association's 	unfair 	practice 	charge
66

in Case No. 	LA-CE-1841, 	reveals that 	it was 	a 	15-minute
nutrition 	period 	that 	was 	originally eliminated.
The Association 	argues 	that 	the 	only 	information 	in 	the
record 	supports 	the ALJ's 	conclusion 	that 	seven minutes 	were
lost.3	3 	It 	also 	argues, 	without 	any citation to the 	record,
that 	the District 	had 	already 	reduced 	the 	lunch period 	by 	five
minutes 	at 	the 	time 	the 	settlement 	agreement was 	signed, 	and
that 	only the 	insertion 	of 	seven minutes 	of 	duty-free 	time
remained 	to 	be 	implemented. 	It 	does 	not 	clarify what
difference 	that 	fact would make. 	The District 	disputes 	the
seven-minute 	figure 	and 	argues 	that 	the 	failure 	to 	implement
the 	agreement 	resulted 	in only 	a 	one-minute 	loss 	of 	duty-free
time, 	since 	the 	five minutes 	reduced 	from the 	lunch period were
already duty-free. 	Therefore, 	according 	to the District, 	the
only duty-free 	time 	eliminated was 	the 	one minute 	that 	was 	not
removed 	from 	the 	third 	period 	and 	put 	into 	the 	passing 	period.
On 	the 	face of 	it, 	it would 	seem that 	the District's
position 	represents 	a 	logical way to 	calculate 	the 	amount 	of
3The 	Association 	also makes 	another 	argument 	based 	on
language 	contained 	in the District's 	brief. 	The District
argues that the "net effect 	. 	. 	. 	was a one-minute reduction in
the 	passing 	period 	between 	periods 	three 	and 	four 	and 	a
concomitant 	one-minute 	increase 	in 	the 	third 	period." 	The
Association 	argues 	that 	these 	two 	one-minute 	periods 	result 	in
at 	least 	a 	two-minute 	loss 	of duty-free time, 	by the District's
own 	admission. 	We disagree. 	It 	appears 	from the 	settlement
agreement 	that 	the minute 	lost 	from the 	passing 	period was 	the
same minute 	added 	to 	the 	third period. 	There was 	a 	loss 	of 	one
minute 	from duty-free time, 	and that 	one minute was 	added 	to
instructional 	time.
77

loss. 	While 	the 	teachers 	originally had 	a 	15-minute 	duty-free
nutrition period, 	they lost 	at 	least 	five 	minutes 	of 	that 	time
to 	instructional 	time 	pursuant 	to 	the 	District's 	original
unilateral 	change. 	However, 	when 	the parties 	signed 	the
settlement 	agreement, 	they 	established 	a 	new policy 	regarding
those 	minutes. 	It 	would 	appear 	that 	the Association 	settled
for 	reorganization 	of 	five 	minutes 	of 	duty-free 	time 	taken 	from
lunch 	and 	the 	restoration 	of 	one 	minute 	of 	duty-free 	time 	taken
from 	the 	third period. 	When 	seen 	in 	that 	light, 	the effect 	of
the 	District's 	failure 	to 	implement 	that 	agreement 	was 	only a
one-minute 	loss 	per 	day 	in 	duty-free 	time 	which 	was 	added 	to
instructional 	time.
Because 	we 	find 	the 	District's 	argument persuasive, 	yet
contradicted by 	the 	only 	direct 	testimony 	available 	in 	the
record, 	we 	reluctantly defer 	the 	issue 	of 	the 	exact 	amount 	of
duty-free 	time 	lost 	to compliance 	procedures.4 Absent
agreement by 	the 	parties, 	we 	direct 	that 	a 	compliance hearing
shall 	be 	held 	for 	the 	purpose 	of 	ascertaining the 	correct
amount of 	loss 	of 	duty-free 	time per 	day as 	a 	result of 	the
District's 	failure 	to 	implement 	the 	settlement 	agreement 	signed
by 	the parties 	in 	the 	spring of 	1984. 	Neither party has
4Chairperson 	Hesse 	finds 	that 	Neustadter's 	testimony was
composed 	of 	conclusions 	and 	was 	unsupported by 	the 	evidence.
Because 	there 	is 	sufficient 	evidence 	on 	the 	record 	to determine
that 	the 	net 	change 	per day 	totalled 	one minute, 	she would 	not
defer 	resolution 	of 	this 	issue 	to a 	compliance 	proceeding.
8
•

excepted 	to 	the ALJ's 	termination 	of 	the 	award 	period 	in
February 	1985 when 	the 	parties 	reached 	a 	successor 	agreement,
and we 	do 	not 	disturb his 	conclusion on 	that 	point.
ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and 	the entire 	record 	in this 	case, 	and pursuant 	to 	Government
Code section 3541.5(c), 	it 	is hereby ORDERED that the 	Inglewood
Unified 	School 	District 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing 	to 	implement 	the 	agreed-upon bell
schedule.
2. 	Denying 	to 	the 	Inglewood Teachers Association,
CTA/NEA, 	rights 	guaranteed 	by the Educational 	Employment
Relations Act, 	including the 	right to 	represent 	its members, 	by
requiring 	prior 	approval 	for 	use 	of 	Inglewood 	High 	School
teachers' mailboxes.
3. 	Retaliating 	against 	or 	interfering 	with 	employees
in 	the 	exercise 	of 	rights 	guaranteed 	by 	the 	Educational
Employment 	Relations Act, 	including 	the 	right 	to 	be 	represented
by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Grant 	to each of 	the 	employees 	harmed 	by the
refusal 	to 	implement 	the 	agreed-upon bell 	schedule 	the 	amount
of 	paid 	time 	off which 	corresponds 	to 	the 	amount 	of 	time worked
9

as 	a 	result 	of 	the 	reduction of 	the duty-free 	period. 	Should
the 	parties 	fail 	to 	reach 	a 	satisfactory 	accord 	as 	to 	the
manner 	in which 	such time 	off 	shall 	be 	granted or 	if 	an
individual 	is 	no 	longer 	in 	the District's 	employ, 	then 	such
employees 	will 	be 	granted 	monetary 	compensation 	commensurate
with 	the 	additional 	time worked. 	Any monetary payment 	shall
include 	interest 	at 	the 	rate of 	ten 	(10) 	percent 	per 	annum.
2. 	Remove 	and destroy the October 	19 	and 26, 	1984
Lawrence 	Freeman memoranda 	from Robert 	Dillen's 	personnel 	file,
3. 	Within thirty-five 	(35) 	days 	following 	the date
this Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post 	at
all 	work 	locations 	where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the Notice 	attached 	as 	an Appendix hereto,
signed 	by 	an 	authorized 	agent 	of 	the 	employer. 	Such posting
shall 	be maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	this
Notice 	is 	not 	reduced 	in size, 	defaced, 	altered or covered by
any material.
4. 	Provide written notification of 	the 	actions 	taken
to 	comply with 	this 	Order 	to 	the 	Regional 	Director 	of 	the
Public 	Employment 	Relations 	Board, 	in 	accordance with his
instructions.
5. 	It 	is 	further ORDERED that 	all other portions 	of
the 	unfair 	practice 	charge 	and 	complaint 	are DISMISSED.
Chairperson 	Hesse 	and Member 	Morgenstern 	joined 	in 	this
Decision.
10
.

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-2089,
Inglewood 	Teachers Association. 	CTA/NEA v. 	Inglewood Unified
School 	District 	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) 	by unilaterally
changing 	the 	bell 	schedule 	of 	unit 	employees 	without 	affording
the 	exclusive 	representative 	notice 	and 	the 	opportunity 	to
negotiate; 	imposing 	a prior 	approval 	requirement 	on use 	of
mailboxes; 	and 	imposing 	reprisals.
As 	a 	result 	of 	this 	conduct, 	we have been ordered 	to 	post
this 	Notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing 	to 	implement 	an 	agreed-upon bell 	schedule.
2. 	Denying 	to 	the 	Inglewood Teachers Association,
CTA/NEA, 	rights 	guaranteed 	by the 	Educational 	Employment
Relations Act, 	including 	the 	right 	to 	represent 	its members 	by
requiring 	prior 	approval 	for 	use 	of 	Inglewood 	High 	School
teachers' mailboxes.
3. 	Retaliating 	against 	or 	interfering with 	employees
in 	the 	exercise 	of 	rights 	guaranteed 	by 	the Educational
Employment 	Relations Act, 	including 	the 	right 	to 	be 	represented
by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
Grant 	to 	each of 	the 	employees 	harmed 	by the 	refusal 	to
implement 	the 	agreed-upon 	bell 	schedule 	the 	amount 	of 	time 	off
which corresponds 	to 	the 	amount 	of 	time worked 	as 	a 	result 	of
the 	reduction of 	the duty-free 	period. 	Should 	the 	parties 	fail
to 	reach 	a 	satisfactory 	accord 	as 	to 	the manner 	in which 	such
time 	off will 	be granted or 	if 	an 	individual 	is 	no 	longer 	in
1
T
•

the District's 	employ, 	then 	such employees will 	be 	granted
monetary 	compensation 	commensurate with 	the 	additional 	time
worked. 	Any monetary payment 	shall 	include 	interest 	at 	the
rate of 	ten 	(10) 	percent per 	annum.
2. 	Remove and destroy the October 	19 	and 26, 	1984,
Lawrence 	Freeman memoranda 	from Robert 	Dillen's 	personnel 	file,
Dated: 	INGLEWOOD 	UNIFIED 	SCHOOL 	DISTRICT
By: 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 DEFACED, 	ALTERED, 	REDUCED 	IN SIZE OR COVERED BY ANY MATERIAL,
N
	2

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
INGLEWOOD TEACHERS ASSOCIATION.
CTA/NEA.
Charging 	Party.
v.
INGLEWOOD UNIFIED 	SCHOOL 	DISTRICT.
Respondent.
)
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) 	Unfair 	Practice
Case No. 	LA-CE-2089
PROPOSED DECISION
(11/6/85)
)
)
)
)
)
)
)
A p p e a r a n c e s : 	A. 	Eugene 	Huguenin. 	Esq.. 	California 	Teachers
Association 	for 	Charging 	Party; 	Howard 	M. 	Knee. 	Esq.. 	for
Respondent.
Before 	Gary 	M. 	Gallery. 	Administrative 	Law Judge.
STATEMENT 	OF 	CASE
The 	District 	is 	charged 	with 	failing 	to 	implement 	terms 	of
a 	settlement 	agreement 	reached 	as 	a 	result 	of 	an 	earlier 	unfair
practice 	charge; 	interfering 	with 	the 	exclusive
representative's 	use 	of 	school 	m a i l b o x e s ; 	imposing 	reprisals 	on
a 	union 	representative 	for 	use 	of 	mailboxes 	and 	threatening 	the
exclusive 	representative 	president.
PROCEDURAL 	HISTORY
In 	an unfair 	practice 	charge 	filed 	on 	November 	1 4 . 	1 9 8 4 .
the 	Inglewood 	Teachers 	Association. 	CTA/NEA 	(ITA) 	alleged 	that
the 	Inglewood 	Unified 	School 	District 	(District) 	violated
subsections 	3 5 4 3 . 5 ( a ) . 	( b ) , 	and 	(c) 	of 	the Government Code by
This Board agent decision has been appealed to
the Board itself and is not final. Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
(
•

the 	following 	conduct:l reneging 	on a 	settlement 	agreement
reached 	in 	the 	spring of 	1984 	that was 	to 	be 	implemented 	in 	the
fall 	of 	that year; 	discriminatorily assigning a 	union activist
a more onerous 	class 	schedule 	in the 	fall 	of 	1984; 	interfering
with 	the 	union 	representative's 	mailbox 	activity 	on October 	19
and 	26, 	1984, 	and 	suspending him for 	the October 	26 	incident,
and 	interfering with 	the 	union 	president's 	visits 	to 	the 	campus
to 	meet with 	teachers 	on union-related 	matters. 	The 	charge was
amended 	on November 	29, 	1984. 	A PERB 	board 	agent 	issued 	a
complaint on December 	19, 	1984, 	incorporating the allegations
of 	the 	amended 	charge. 	The District 	filed 	its 	answer 	on
January 8, 	1985, 	admitting and 	denying 	facts 	that will 	be
referenced 	in 	other 	portions 	of 	this 	proposed 	decision. 	A
settlement 	conference was 	held 	without 	success. 	The 	formal
1 Pursuant to subsections 3543.5(a). 	(b), and 	(c) 	it is
unlawful 	for 	the 	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.
This 	section 	is 	a 	part 	of 	the Educational 	Employment 	Relations
Act 	(EERA or Act) 	Government Code 	section 	3540 	et 	seq. 	All
references 	are 	to 	the Government 	Code unless 	otherwise 	noted.
22

hearing was conducted on June 11, 	and 	12, 	1985, 	in Los Angeles,
California. 	Post-hearing 	briefs were 	completed 	on October 	15,
1985, 	and 	the matter 	submitted 	for 	decision.
FINDINGS 	OF 	FACT
The District 	is 	a 	public 	school 	employer within 	the meaning
of 	the Educational 	Employment Relations Act. 	ITA 	is 	the
exclusive 	representative 	of 	certificated 	employees 	of 	the
District. 	The 	parties 	have 	a 	collective 	bargaining 	agreement
covering 	the period July 1, 	1983 	through June 	30, 	1986.
A. 	The Bell 	Schedule
On September 	14, 	1983, 	ITA filed unfair practice charge
LA-CE-1841 	against 	the 	District 	alleging 	a 	unilateral 	change 	in
the working 	conditions 	of 	teachers. 	The 	charge was 	amended 	on
October 	17, 	1983. 	The thrust of the 	charge was 	that 	the
District 	had 	unilaterally 	eliminated 	a 	15-minute 	student
nutrition 	period 	during which 	the 	teachers 	had 	no 	assigned
duties. 	The District's 	answer 	admitted 	that 	prior 	to 	the
1983-84 	school 	year 	there was 	a 	15-minute 	student 	nutrition
break 	preceding 	the 	third 	teaching 	period 	of 	the 	school 	day.
The 	answer 	stated 	that 	at 	the 	beginning 	of 	the 	1983-84 	school
year 	the 	nutrition period was 	abolished, 	and 	the 	15 	minutes was
absorbed 	into 	the 	school 	day 	by 	extending 	the 	lunch 	period 	by
five minutes, 	the 	passing period 	between classes 	by one minute
and 	adding 	one minute 	to 	each 	class 	period.
w
	3

In 	conjunction with 	the unfair 	practice 	charge 	the 	parties
entered 	into 	a 	settlement 	agreement 	on 	or 	about 	February 	1.
1984. 	wherein the District 	agreed 	that 	"Effective Fall 	Semester
of 	1984, 	the passing period 	between periods 	3 	and 	4 	at 	the high
schools 	will 	be 	increased 	by 	six minutes 	and 	the 	lunch period
will 	be 	reduced 	by 	five minutes 	and 	the 	third 	period 	by 	one
minute." 	In exchange 	for 	the 	fall 	schedule 	commitment 	(and 	a
posting 	of 	rights) 	the 	ITA withdrew the unfair 	practice 	charge.
In May 	1984, 	the parties 	commenced 	negotiations 	on
reopeners. 	Issues 	on the table, 	among others, 	were calendar
and 	hours, 	including 	longer work year 	and 	extended 	day
encouraged 	by 	the 	financial 	inducements 	of 	SB 	813.
Negotiations 	continued 	through 	the 	summer 	and 	fall 	of 	1984.
School 	started 	in early September 	of 	1984. 	however, 	the
District 	did 	not 	implement 	the 	agreed-upon 	bell 	schedule. 	ITA
complained 	to 	the 	superintendent 	and 	then 	to 	the 	school 	board
about 	the 	failure 	to 	implement 	seven minutes 	into 	the
schedule. 	The reason, 	testified Barbara Cohen, 	was because the
District was 	in negotiations 	and 	it was 	anticipated, 	and
assumed, 	she 	stated, 	that at 	any moment 	settlement with 	ITA
regarding 	the 	entire 	contract would 	be 	reached.
2
Because 	the
District 	was 	planning 	on 	implementing 	the 	extended 	day 	and
longer 	school 	year, 	it would 	necessitate 	changing 	the 	bell
2Cohen 	is 	executive 	assistant 	to 	the 	superintendent,
public 	information 	officer 	and 	a 	member 	of 	the 	cabinet.
4

schedule. 	To be 	least disruptive to students' 	class 	schedule,
the 	superintendent 	and 	the 	cabinet 	determined 	to 	maintain 	the
same 	bell 	schedule 	that 	existed 	during 	the 	previous 	school
year, 	and 	implement 	a new bell 	schedule 	consistent with 	the
negotiated 	contract.
From PERB files, 	it 	is 	found 	that 	the parties were notified
on August 	28. 	1984. 	of PERB's determination of the existence of
impasse between the parties. 	On October 28, 	1984. 	the CTA
requested 	factfinding 	between 	the 	parties. 	Tentative 	agreement
was 	reached 	on 	the 	longer 	day, 	longer year 	in November 	of
1984. 	Settlement 	on 	the 	overall 	issues was 	reached 	sometime
before February 19. 	1985.
B. 	Inglewood High 	School
The 	remainder 	of 	the 	charge 	pertains 	to 	the 	interaction 	of
Lawrence Freeman, 	principal 	at 	Inglewood High School, 	with
Robert Dillen. 	a 	teacher at 	Inglewood, 	and Genevieve
Neustadter. 	president of 	ITA. 	Inglewood High School 	is 	one 	of
two high schools 	(there 	is 	also a 	continuation school) 	in the
19 	school 	district. 	Freeman was 	assigned 	principal 	at
Inglewood 	effective January 4. 	1984.
That 	portion of 	the 	charge 	relating 	to Dillen pertains 	to
the 	fall 	1984 	assignment 	and 	two 	confrontations with Freeman 	on
use 	of 	the 	school 	mailboxes 	for 	teachers. 	That 	portion
regarding Neustadter 	relates 	to 	meetings 	Neustadter 	had 	with
Freeman at 	the 	Inglewood 	campus. 	These 	events 	are 	described
5

hereafter, 	with 	the 	prefatory 	observation 	that 	credibility
determinations 	were 	made 	difficult 	by 	the 	presentation 	of 	the
evidence. 	Dillen's 	testimony was 	produced 	largely 	by 	leading
questions with short 	affirmative 	or 	negative 	answers.
Neustadter 	spoke with 	conviction and 	yet 	revealed, 	as 	did
Dillen. 	a 	firm distaste 	for Freeman's 	manner 	of 	principalship
at 	Inglewood. 	Freeman, 	by his 	own admission, 	was 	loud,
animated, 	and 	spoke 	authoritatively. 	His 	inability to 	recall
some 	events, 	and 	inconsistency 	in 	regard 	to 	some 	particulars,
leads 	one 	to 	defer 	to Dillen 	and Neustadter where 	there 	is
conflict. 	This 	is not to say, 	however, 	that 	I discredit
Freeman 	in all 	respects. 	At 	hearing, 	his 	demeanor 	and 	candor
about 	his 	style 	of 	administration, 	and 	his 	general 	presentation
of 	testimony 	left 	me with 	the 	impression 	that 	his 	inability 	to
recall 	may have 	been sincere, 	and 	inconsistencies 	inadvertent.
1. 	Robert Dillen - Background
Robert Dillen 	is 	a 	14-year 	teacher 	at 	Inglewood 	High
School. 	For 	over 	half 	of 	his fourteen years, 	Dillen has 	been a
building 	representative 	for 	ITA, 	including 	the 	school 	years
1982-83 	to 	the 	time 	of 	the 	hearing. 	As 	building 	representative
he was 	responsible 	for 	the 	dissemination of 	information 	to 	the
Inglewood 	High 	School 	faculty, 	taking 	feedback 	to 	the 	ITA
representative 	council, 	conducting 	elections 	and meetings 	for
ITA purposes. 	He 	and 	Pam Erbeck were 	the 	two 	functioning
building 	representatives 	at 	Inglewood. 	From January 	and 	into
6

the 	fall 	of 	1984 	he placed 	ITA materials 	into 	the 	teachers'
mailboxes which are 	located 	in a 	room adjacent 	to 	but 	part 	of
the 	principal's 	office. 	This 	activity would 	take 	place 	no more
than once a week, 	he said.
Prior 	to Freeman's 	arrival 	on January 4, 	1984. 	and when
Vice 	Principal 	Geraldine Martin was 	in 	charge 	of 	faculty
meetings. 	Dillen would 	make 	announcements 	regarding 	ITA matters
at 	the meetings. 	Since Freeman's arrival. 	Dillen said, 	they
have 	not 	had 	the 	opportunity 	to 	announce 	ITA matters 	at 	the
faculty meetings. 	Dillen 	"assumed" 	that 	Freeman 	knew he was
the 	building representative, 	because 	it was 	not 	"hidden
information" 	and 	he 	did 	his 	mailbox work 	in an open manner.
Dillen 	attended 	the 	settlement 	conference 	leading 	to 	the
settlement agreement 	in LA-CE-1841. 	He was 	not 	on the
negotiating 	team during the 	summer 	of 	1984 	on the reopeners.3
2. 	Dillen's Fall 	1984 	Class Assignment
Dillen teaches 	in the 	Social 	Sciences 	department.
Normally, 	teachers 	have a 	total 	of 	five 	classes 	assigned 	to
them, 	plus 	a 	preparation period. 	Within 	the Social 	Science 	and
English departments, 	students 	are 	assigned 	to 	either 	an A or 	B
3 In 	its 	post-hearing 	brief 	the 	ITA 	requests 	that 	official
notice 	be 	taken of 	two 	Los Angeles 	Regional 	Office unfair
practice charges 	(LA-CE-1938 	and LA-CE-2003). 	Neither 	file
mentions 	Dillen by name. 	In the absence 	of 	testimony at
hearing, 	I 	decline to take notice of 	the pleadings 	in those
cases 	and 	draw no 	inference 	regarding Freeman's 	knowledge 	of
Dillen's 	purported 	activity with 	regard 	to 	those 	unfair
practice 	charges.
77

level 	class 	based 	upon 	the 	student's 	academic 	and 	reading
ability. 	A 	is 	for 	higher 	and 	B 	is 	for 	lower 	achievers. 	The B
classes, 	according to Dillen, 	cause more stress 	to the
teacher. 	The 	teacher 	cannot 	relax 	in 	the B class 	and 	is under
pressure 	to maintain classroom discipline. 	The 	students'
attention 	span 	is 	more 	limited 	and 	they have 	less 	motivation 	to
achieve 	good 	grades 	or 	to 	do homework. 	B 	level 	students 	talk
back 	to 	the 	teacher 	more 	than 	the A 	level 	students 	and 	present
a 	greater 	challenge 	to 	the 	teacher 	to 	get 	them 	to 	do 	their
work. 	High absenteeism and 	tardiness, 	more 	preparation time,
more parent 	conferences, 	more phone 	calls, 	lead 	to more 	teacher
stress. 	Dillen said.
Dillen 	testified 	that 	there were 	a 	sufficient 	number 	of A
level 	classes 	so 	that 	it would 	not 	be 	necessary 	for 	any 	teacher
to have all B 	level 	classes. 	Later, 	however, 	he testified 	that
he was 	unaware 	of 	the 	overall 	number 	of A 	level 	and 	B 	level
classes.
For 	the prior 	seven years, 	Dillen had, 	in each year one.
two, 	or 	three A level 	classes. 	In the 	1983-84 	school year,
Dillen 	had 	two 	B 	level 	World 	History 	classes 	and 	three A 	level
classes 	in Civics. 	At mid-term because 	of 	a 	need 	for 	class
size 	change and 	for 	an additional 	B 	level 	class 	in Civics,
Dillen had 	two A 	level 	and 	two B 	level 	classes 	in Civics 	and
one World 	History 	class 	at 	B 	level.
8

When Dillen came 	to 	class 	the 	first 	day of 	school 	in 	fall
1984, 	he 	learned 	that he had 	five B 	level 	classes. 	He
ascertained 	that 	there were 	three 	other 	Social 	Studies 	teachers
who were 	assigned 	all 	B 	level 	classes.
Administrators 	at 	the 	high 	school were Freeman, 	the
principal. 	Jerry Martin, 	the assistant vice principal, 	and
Liza Daniels, 	another 	administrator. 	Dillen assumed Martin
made 	the 	class 	assignments.
Jerry Martin 	is 	assistant 	principal 	in 	charge 	of 	Counseling
and 	Curriculum at 	Inglewood. 	She 	prepared 	the 	1984-85 	school
year 	class 	assignments, 	as 	she has 	for 	six years. 	Counselors
preschedule 	the 	students 	to A or 	B 	level 	classes 	prior 	to 	the
end 	of 	the 	previous 	school 	year. 	That 	preschedule 	is
computerized 	from which Martin 	determines 	how many 	sections 	she
will 	need 	the 	next 	term. 	The 	teachers 	also 	give 	her
preferences 	for 	the 	courses within a 	department 	they wish 	to
teach 	the 	following 	school 	term. 	Based 	upon 	the 	foregoing
information and 	her 	understanding 	of 	the 	needs 	of 	the 	school
and 	the 	expertise 	of 	the 	teachers 	she 	arranges 	a 	tentative
master 	schedule. 	She 	did 	the 	scheduling 	at 	her 	home 	during 	the
month of August. 	Freeman had 	no 	input 	into 	the 	scheduling
although 	he 	later 	saw the 	computer 	printed 	schedules 	showing
teachers' 	A or B 	level 	class assignments.
Freeman 	denied 	that 	he 	had 	any 	input 	into 	the 	scheduling 	of
classes. 	He 	testified 	that 	he 	had 	told 	the 	teachers when he
109

first 	came 	that 	he would 	not 	be 	involved 	in 	scheduling 	for 	some
time while 	he 	became more 	familiar with 	the 	school 	and 	its
staff. 	His 	testimony 	in this 	regard was 	not 	refuted 	by 	ITA.
Martin 	later 	ascertained 	that 	seven 	teachers 	in 	the 	English
and 	Social 	Science 	departments 	had 	all 	B 	level 	classes. 	Martin
said 	Dillen's 	ITA activities were 	not 	involved 	in 	his
assignment. 	Martin was 	aware at 	the 	time 	of 	the 	assignments
that 	some 	teachers would 	be 	getting 	all 	B 	level 	classes, 	but
until 	Dillen 	called 	her 	attention 	to 	his 	assignment 	and 	that
she might 	be 	called 	to 	explain 	it. 	she did 	not 	realize 	it was
an issue.
There are 	about 	20 	teachers 	in 	each department. 	While
uncertain 	of what 	the 	ratio was Martin 	said 	there were more 	B
level 	than A 	level 	classes. 	Her 	guess was 	60 	percent 	B 	level
and 	40 	percent A 	level 	classes.
Dillen's 	spring 	1984 	response 	to Martin's 	request 	for
preferences 	had 	listed 	Civics 	for 	all 	periods without
designation of 	level, 	but 	for 	period 	6 	he requested
Civics-World History 	level 	(B). 	Without 	a 	designation of
preference 	on 	the 	form Martin 	did 	not 	know Dillen 	preferred 	one
level 	over 	another.
From visits 	to Dillen's 	classroom. 	Martin was 	aware 	of
individualized 	lesson 	plans 	for 	students 	determining 	their
achieving 	levels 	initiated 	by Dillen. 	She 	felt 	it was 	a 	good
program.
10

I 	found Martin 	to be 	a 	credible witness. 	She 	spoke with
confidence, 	sincerity and 	knowledge 	of 	her 	responsibilities.
Despite 	ITA's 	arguments 	to 	the 	contrary. 	I 	find 	no
inconsistency 	in her 	testimony 	that 	Freeman 	had 	no 	input 	in 	the
makeup of 	the 	fall 	class 	schedule, 	but 	that 	he did 	see 	the
schedule 	after 	she 	had 	developed 	it. 	Nor 	do 	I 	find
inconsistency 	in her 	testimony, 	again urged 	by 	ITA. 	that 	she
knew at 	the 	time 	of 	the 	assignments 	that 	some 	teachers 	had 	all
B 	level 	classes, 	but did not 	realize 	it was an issue, 	until
Dillen 	informed 	her 	of 	his 	discontent.
3. 	The October 	19 	Incident 	(Dillen)
As 	noted, 	one duty of 	a 	building 	representative 	is 	to
insert 	into 	the 	teacher's 	mailboxes 	various 	ITA materials
distributed 	by 	ITA. 	Typically, 	ITA materials 	are prepared 	in
the 	ITA office. 	Materials 	are 	put 	into 	envelopes 	addressed 	to
the 	building 	representatives 	and 	delivered 	to 	the 	District
central 	office 	for 	distribution to 	the various 	school 	sites.
The 	District 	has 	an 	inter-District 	mail 	system 	by which 	ITA
packages 	are 	sent 	from 	the 	centralized 	office 	to 	the various
school 	sites. 	The building representatives, 	in turn, 	place the
new materials 	into 	the 	individual 	teacher's 	boxes.
Dillen's workday 	starts 	at 	8:00 	a.m. 	(Classes 	start 	at
8:30 	a.m.) 	Consistent 	with 	his 	practice 	for 	distributing 	ITA
flyers, 	he arrived 	at the principal's 	outer 	office at
approximately 	7:40 	and 	began 	inserting 	flyers 	(the 	Hotline)
11

into 	the 	82 mailboxes 	located 	there. 	The 	process 	takes 	about
five minutes, 	he said.
Dillen 	testified 	that 	at 	the 	time 	he was 	stuffing 	the
Hotline 	into 	the mailboxes. 	Freeman was 	talking 	to
Tony Washington, 	a 	gardener, 	at 	the 	counter.4 Dillen's 	back
was 	to Freeman. 	Freeman 	said 	that 	he wanted 	Dillen 	to 	come
over 	and 	talk 	to 	him. 	Dillen 	said 	he 	turned 	to 	look 	at 	Freeman
who was 	talking 	to Washington. 	Since Freeman 	continued 	his
conversation with Washington. 	Dillen 	turned 	and 	started 	putting
more Hotlines 	into 	the boxes. 	He did 	not 	go over, 	he 	said,
because 	Freeman was 	continuing 	to 	talk 	to Washington. 	Before
Dillen had 	completed 	the 	stuffing 	of 	the 	boxes, 	he 	said.
Freeman 	came 	over 	and 	grabbed 	the Hotlines 	out 	of 	his 	hand, 	and
told 	Dillen 	that 	he wanted 	to 	talk 	to 	him 	in his 	office.
Dillen 	replied 	something 	to 	the 	effect 	that 	he would 	not 	do 	it
without 	a witness. 	He 	thought 	he might 	have asked Nollan 	if 	he
would 	come 	in with 	him. 	Dillen thought 	Freeman was 	upset
because 	he was 	putting 	things 	in 	the 	boxes. 	There 	had 	been no
prior 	interaction with Freeman 	that 	morning. 	Dillen 	said
Freeman 	threatened 	him with 	suspension 	if 	he 	did 	not 	come 	into
the 	office. 	Dillen said 	that 	he 	looked 	at Nollan and Nollan
indicated 	from 	body 	language 	that 	he 	thought 	he 	had 	better 	go
in. 	So Dillen did. 	but 	stood 	in 	front 	of 	the glass 	door 	to 	the
4 Mike Nollan and Mrs. 	Scott, 	math teachers 	at 	the higher
school, 	and a 	student were 	in the office as well.
12

principal's 	office 	so 	that 	the 	door would 	not 	close, 	because he
did 	not want 	to 	be 	alone 	in 	the 	office with Freeman.55
Freeman 	then 	told 	him 	to 	move 	and 	Dillen 	said 	he was 	not
going to. 	Freeman 	said 	he would move, 	and Freeman 	"bodily
moved me 	out 	of 	the way 	of 	the 	door." 	"It was 	a 	push with his
hands." 	Freeman 	then shut 	the 	door. 	Dillen said 	that 	Freeman
shouted 	at 	him 	"that 	it was 	not 	courteous 	to 	put 	things 	in 	the
box without 	his 	permission and 	that 	he 	cannot 	hold 	meetings 	at
the 	campus 	at 	Inglewood 	High 	School 	without 	his 	permission."
Dillen assumed 	that 	he was 	referring 	to 	ITA meetings, 	because
that was 	the 	only 	kind 	of 	meeting 	he 	conducted 	at 	the 	school.
Dillen 	said 	he was 	sure 	he 	told 	Freeman 	that 	he 	had 	the
right 	to 	put 	things 	in 	the 	boxes 	and 	that 	he did 	not 	need
Freeman's 	permission.
Dillen did 	not 	recall when, 	but 	Freeman gave 	him the 	flyers
back, 	and 	he put 	them in the mailboxes. 	He 	then sat down and
waited 	for 	further 	instructions. 	Shortly 	thereafter 	he was
given a 	note 	to 	return to his 	class 	and was 	told 	that 	a 	memo
would 	be 	given 	to 	him later.
Freeman 	testified 	that 	on October 	19. 	he 	saw Dillen 	putting
something 	in 	the mailboxes 	and 	asked 	if 	he 	could 	see 	him 	for 	a
5 Dillen 	said 	this 	conduct was 	due 	to a 	past 	experience 	in
May when Freeman 	shouted 	at 	him and 	ordered 	him 	to 	do
something, 	and 	blocked 	his 	exit 	from the door. 	Dillen had 	to
go out 	a 	side door.
13

moment. 	"Dillen 	often does 	not 	answer 	when you're 	talking with
him." 	said 	Freeman. 	And 	then Freeman 	stated 	he 	said.
"Mr. 	Dillen did you hear me. 	I'd 	like 	to 	see
you 	in the 	office a 	moment." 	Dillen kept
right 	on going with his 	business. 	So 	I
walked 	around 	the 	counter 	and 	placed 	myself
between Dillen and 	the boxes, 	and 	I 	said,
"Mr. 	Dillen. 	I've asked you 	on numerous
occasions 	just 	to 	let 	me 	know 	if 	you're
going 	to 	put 	something 	in the 	boxes."
Dillen kept 	right 	on doing 	it, 	and 	I 	took
them out of his 	hand. 	And 	I 	said, 	"did you
understand, 	sir, 	that 	I'd 	asked you 	to 	let
me 	know when you were 	going 	to 	put 	something
in 	these 	boxes." 	Then 	I 	handed 	them back
the 	papers 	and 	let 	him continue.6
Freeman was 	uncertain 	if 	it was 	that 	day when Dillen 	stood
in the doorway, 	because 	there had 	been other 	incidents. 	He did
not 	recall 	Nollan being asked 	to 	come 	into 	the 	office, 	although
he 	said Nollan 	"seems 	to 	pop up out 	of 	the 	air 	anytime."
Dillen was walking 	in front 	of 	him. 	he 	said, 	and Dillen stopped
immediately 	right 	at 	the 	door. 	He 	said, 	he 	placed 	his 	hand
gently on Dillen and 	said 	"Mr. 	Dillen one way or 	the 	other."
Dillen went 	into dramatics, 	said Freeman, 	"look 	everyone he's
hitting me." 	I 	said, 	"come on Mr. 	Dillen 	just move one way or
the 	other, 	let's 	go 	into 	the office." 	Dillen had 	to move one
way or 	the 	other 	because 	he was 	blocking 	the door, 	and 	said
Freeman, 	he 	couldn't 	get 	into his 	own office.
6 Freeman 	initially 	denied 	that 	on 	that 	occasion 	he 	had
summoned 	Dillen 	into his 	office. 	This 	is 	contrary 	to 	the 	later
testimony 	of 	Freeman 	just 	set 	forth.
14

Freeman denied 	that 	he 	ever 	told 	Dillen 	that 	the 	ITA 	could
not 	have 	meetings 	at 	the 	Inglewood 	High School 	campus without
his 	permission. 	He 	said 	that with 	regard 	to 	campus 	ITA's
meetings 	he very 	seldom 	knows when 	they are 	having 	a 	meeting.
They might 	announce 	it at a 	faculty meeting, 	if 	there 	is 	going
to 	be 	an 	ITA meeting, 	or 	someone might 	stop and 	ask 	if 	he
minded 	if 	they held 	a meeting 	in the 	library. 	There 	are 	no
restrictions when 	they meet 	because 	they are 	part 	of 	the
faculty.
Later 	that 	day Dillen got 	a 	letter 	from Freeman. 	It 	stated
in part:
Re: 	Distribution of Materials 	in Mail
Boxes
It 	is 	a 	common practice 	that whenever
materials 	are placed 	in boxes 	that 	they 	be
shown to 	the Principal. 	This 	procedure 	is
not used as 	censorship, 	but rather, 	as a
common 	courtesy 	to 	the 	school 	administration.
More 	importantly, 	anytime 	I want 	to talk
personally with you, 	you 	feel 	that you 	need
a witness 	present. 	This makes 	our
communication very difficult. 	When 	I want 	a
dialogue with you. 	a witness 	is
unnecessary. 	This 	is not 	to be.7
Additionally, 	when staff 	persons 	are
requested 	to 	follow specific 	directions 	of
the principal 	(i.e. 	to go to class) 	and they
respond with a 	rebuttal 	(i.e. 	I 	need 	it 	in
writing), 	it is time for us to confer.
7 Despite 	this 	language 	regarding 	a witness, 	the Charging
Party 	stated 	that 	it was 	not 	their 	intention 	to 	litigate
Weingarten 	rights.
15

If actions 	such as these continue, 	it will
be 	necessary 	to 	give you 	a 	severe 	reprimand
for 	insubordination 	or 	consideration 	for
possible 	termination of 	your 	IHS 	assignment.
Dillen understood 	the 	letter 	as 	a 	threat 	of 	a 	transfer.
Dillen 	testified 	that 	in all 	the years 	of 	teaching 	at 	Inglewood
he 	had 	never 	felt 	that 	he 	had 	to 	ask 	the 	principal 	to 	put 	ITA
information 	in the 	teachers' 	boxes. 	He had 	never 	shared a 	copy
of 	the materials with the 	administrator 	prior 	to 	putting 	them
in the boxes.
In response to a 	leading question. 	Dillen affirmed 	that
Freeman 	at 	one 	of 	his 	first 	faculty meetings 	announced 	that 	as
a 	part 	of 	the 	procedures 	for 	distributing materials 	to 	faculty
members, 	the administrator, 	either 	the principal 	or 	the
vice-principal, 	was 	to 	see a 	copy of 	any material 	before 	it was
placed 	in 	the 	teachers' 	boxes.8 Despite 	that 	admonition,
Dillen 	continued 	to 	put 	the 	materials 	into 	the 	boxes without
showing 	them to 	the 	principal 	first.
Freeman 	testified 	he 	gave 	the October 	19 	letter 	to 	Dillen
because 	Dillen 	continued 	to 	ignore Freeman's 	requests 	to 	let
him know when 	he was 	going 	to 	place 	something 	in 	the 	boxes.
8 Freeman did 	not 	deny 	the 	rule 	attributed 	to 	him. 	He
testified 	that when he 	got 	to 	Inglewood, 	he 	let 	it 	be 	known
that 	he 	"would 	like very much 	that 	if you're 	going 	to 	place
stuff 	in 	the 	box you make 	the 	principal 	aware 	of 	that 	so 	either
he 	could 	defend what you're 	doing 	or 	not 	or 	give 	some 	kind 	of
answer." 	Freeman's 	further 	testimony 	on 	the 	rule 	is 	outlined
below.
16

He 	commented 	in 	the 	letter 	regarding 	Dillen's 	insistence 	on
having a witness 	because 	he 	said 	every 	time 	he wanted 	to 	talk
with 	him, 	Dillen would 	refuse unless 	he 	had 	a witness 	because
"you're 	going 	to discipline." 	Freeman's view was 	that 	it was
not 	right 	to 	assume 	every 	time 	the 	principal wanted 	to 	talk 	to
an 	employee 	there was 	a 	disciplinary matter 	involved.
He 	further wrote 	in 	the 	letter 	concerning 	his 	request 	to
Dillen. 	He 	had 	asked Dillen to 	go 	to 	the 	classroom, 	and 	they
would 	discuss 	it 	later. 	Since Dillen wanted 	to 	go 	through a
lot 	of 	rebuttals 	and 	did 	not 	follow the 	specific 	directions.
Freeman had 	to 	put 	it 	in writing.
Freeman 	testified 	that 	there was 	"no 	rule 	per 	se" 	regarding
the use 	of 	school 	boxes 	by 	individuals 	or 	organizations 	but
"rather 	a 	practice, 	more 	or 	less." 	Any person who wishes 	to
place something 	in the school 	boxes, 	he testified, 	"as a matter
of 	courtesy, 	should 	tell 	the 	principal 	that 	they are 	going 	to
place 	something 	in the 	box." 	The 	rule, 	he 	said, 	applied 	to 	the
PTA. 	venders, 	or any organization. 	He said sometimes he asks
to 	see 	the materials 	and 	other 	times 	he does 	not.
Freeman 	explained 	that 	one 	of 	the 	reasons 	for 	the
"practice" 	is 	that 	"a 	lot 	of 	people are 	offended 	by things 	that
are 	placed 	in 	the 	box. 	They might 	not want 	to 	be 	involved."
Freeman was 	also 	concerned 	about 	students 	getting 	hold 	of
something 	controversial 	and 	that 	parents 	might 	be 	offended
17

because 	it 	is 	the wrong 	kind 	of 	literature 	for 	student
consumption. 	It could 	be of a 	religious nature or 	anything, 	he
said.
Freeman cited, 	as a 	further 	example, 	someone who placed 	tax
shelter 	annuity materials 	in 	the 	boxes without 	approval 	of 	the
District 	office. 	He 	said 	that when he 	got 	to 	Inglewood 	High
School 	he 	let 	it 	be 	known 	that 	he would 	like 	to 	be made 	aware
of materials 	to be 	stuffed 	in the boxes, 	so 	that he 	could
either 	defend 	them or 	give 	some 	kind 	of 	an answer 	if
questioned. 	By defending, 	he meant 	for 	example 	to members 	of
the 	faculty who were 	not 	ITA members who 	did 	not want 	to
receive 	information 	from 	ITA. 	"While 	it 	didn't make 	any
difference," 	he 	said, 	"they have a 	right 	not 	to receive as well
as 	to 	receive 	it." 	He 	asked 	ITA 	to 	"inform him when 	they were
going 	to 	put 	something 	in the 	box."
Erbeck, 	the other site representative, 	does 	let him know
about stuffing the boxes. 	In each 	instance, 	he said, 	he has
allowed 	her 	to 	put material 	in the 	boxes. 	Often 	she 	offers 	to
show him the material, 	but 	sometimes 	he does 	not 	bother 	to 	look
at 	it. 	He 	is 	only 	interested 	in 	knowing 	that 	there 	is 	going 	to
be material 	in 	the 	boxes. 	He 	is 	not 	interested 	in what 	goes
on. 	And by way of demonstration, 	once, 	he said, 	the
Association passed 	out 	a 	very 	interesting 	flyer. 	It was 	a
cartoon of Mr. 	Freeman 	"screaming" 	and 	"it was 	a very
derogatory 	flyer." 	He 	gave 	her 	permission 	to 	put 	the 	flyer
into the boxes.
18

4. 	The October 	26. 	1984 	Incident 	(Dillen)
On October 	26, 	again before 	8:00. 	Dillen was 	placing
materials 	in the mailboxes. 	He 	had 	not 	shown 	the materials 	to
Freeman. 	Freeman came 	out 	of 	his 	office and 	asked 	if 	he was
putting materials 	into 	the mailboxes. 	Freeman 	called 	him 	into
his 	office 	and 	Dillen again 	announced 	that 	he would 	do 	so 	only
with a witness 	present. 	Wayne Hester was 	also 	in 	the 	outer
office. 	Freeman 	suspended 	Dillen 	for 	the 	day 	by 	sending 	him to
the Office 	of 	the Director 	of 	Personnel. 	Freeman also 	gave
Dillen a 	letter, 	which stated 	in part:
Re: 	Following Requests 	of 	the
Administration
Once 	again, 	you 	have 	placed 	materials 	in 	the
mailboxes without my prior 	approval. 	As 	I
indicated 	last week, 	it 	is 	a 	courtesy
extended 	to 	the 	school 	principal 	to 	be
informed 	about 	any materials 	which 	are 	being
placed 	in the teachers' 	boxes.
I 	asked 	you 	this 	morning 	to 	come 	into my
office 	so 	that we 	could 	discuss 	this 	matter
and 	you 	refused. 	Because 	of 	the 	difficulty
I 	observe 	in your 	ability 	to 	follow the
directive 	of 	the 	Principal 	after 	being
warned 	and 	advised 	to 	do 	otherwise, 	you
leave me 	no 	choice 	but 	to use 	other
measures. 	I am concerned about your
consistent 	inability 	to 	follow 	reasonable
and 	justifiable 	directions 	of 	the
Principal. 	Therefore, 	you are hereby
notified, 	that 	effective 	immediately, 	you
are 	being 	sent 	to 	the 	Personnel 	Office with
pay. 	You are to report 	to Mr. 	Steele.
Dillen 	spent 	the 	entire 	day 	at 	Steele's 	(District 	Personnel
Officer) 	office 	and 	reported 	to 	his 	classroom on 	the 	following
Monday 	pursuant 	to 	instructions 	from 	Steele.
19

Freeman did 	not 	testify as 	to 	the 	particulars 	of 	the
October 	26 meeting, 	but 	did 	testify that 	he 	had 	asked Dillen to
come 	to 	the 	office 	and 	Dillen 	had 	said 	he was 	not 	coming. 	On
another 	occasion. 	Freeman 	had 	spoken 	to Dillen about 	some
machines, 	and Dillen had 	told 	him it was 	none of 	his 	business.
"So 	out 	of 	shear 	desperation," 	according to Freeman, 	on
October 	26. 	he 	sent Dillen to 	the 	personnel 	office,
so 	that 	someone 	could 	tell 	Dillen 	the 	role
of a principal at a school, 	which is that
the 	principal 	is 	the 	supervisor 	and 	he 	has
to 	be 	advised 	of what's 	going 	on at 	the
school. 	And 	if 	he advises you 	to come 	in,
you come 	in. 	If you have a 	grievance after
what 	has 	been said, 	and you don't 	like 	it,
then you 	go 	through 	the 	grievance 	process.
But 	just 	to 	go 	out 	and 	out 	refuse 	to do what
you were 	asked 	to do 	is 	insubordination.
And 	since 	they did 	not 	take 	this 	kind 	of
information from Mr. 	Freeman, 	I 	thought
perhaps 	the District 	personnel 	officer 	or
someone 	could 	explain 	to 	these 	people what
it 	is 	the principal 	is 	responsible 	to do.
Dillen 	admitted 	that 	he 	had 	never 	been 	denied 	placement 	of
materials 	into mailboxes 	nor was 	he 	aware 	of 	any 	censorship 	by
Freeman.
5. 	The November 	2. 	1984 	Incident 	(Dillen)
On Friday, 	November 	2, 	Dillen was 	sent 	to 	the Personnel
Office again. 	Regarding 	the underlying 	incident, 	Dillen had
sent materials 	to Freeman 	for 	duplication. 	It 	had 	to do with
homework 	assignment 	sheets. 	He 	had 	passed 	out 	the 	homework
assignment 	sheet 	but 	had 	not 	been able 	to 	give 	students 	the
worksheet, 	so he 	sent another 	copy to 	be duplicated. 	It was
20

not 	returned. 	On a 	Friday he 	sent 	a 	student 	down to Freeman's
office 	to 	pick 	them up. 	She 	came 	back 	to 	the 	classroom crying,
he 	said, 	because Freeman had 	jumped 	on her 	for 	not 	having her
nametag. 	He 	asked 	the 	class 	if 	there was 	anybody else who
would 	like 	to 	take 	the 	note 	to Freeman. 	Ten of 	the 	students
volunteered 	to 	go 	to Freeman's 	office 	to 	get 	their 	copies 	of
the worksheet. 	Martin 	came 	to 	his 	classroom and 	relieved 	him
and 	told 	him to 	report 	to 	Freeman's 	office. 	He 	then 	got 	the
following 	memorandum.
Re: 	Procedures
You 	continue 	to 	persist 	in 	following 	correct
school 	procedures. 	We 	have 	talked 	about
your 	reluctance 	in adhering 	to 	school
procedures 	in the past, 	and you have 	been
given written warnings 	also.
Today you 	sent 	several 	students 	to 	my 	office
during 	the 	first 	half 	of 	Period 	1 	to inquire
about 	their 	materials which needed 	to 	be
duplicated. 	The 	sending 	of 	these 	students
is 	another 	example 	of 	your 	refusal 	to 	follow
simple, 	sensible directives 	from the
Principal. 	Moreover, 	your actions 	continue
to 	be provocative and 	inappropriate as 	I 	try
to 	confer with you.
Once again, 	I 	am sending you to District
Office with 	pay 	for 	persisting 	in 	this
action.
He 	then 	spent 	the 	rest 	of 	the day at 	the Personnel 	Office. 	A
copy of 	the November 	2 	memo went 	into Dillen's 	file.
6. 	Genevieve Neustadter 	- Background
Genevieve Neustadter, 	a teacher 	in the District, 	is
president 	of 	the 	ITA and 	chairperson 	of 	the 	negotiations 	team.
21

In 	the 	immediate 	preceding year 	she 	served 	as 	the 	past
president.9
Neustadter 	testified 	that 	she was 	unaware 	of 	any District
policy 	or 	procedure 	under 	which 	ITA 	building 	representatives
are 	required 	to 	provide 	the 	school 	site 	administrator 	(the
principal) 	a 	copy of 	ITA publications 	before putting 	them 	in
the 	faculty mailboxes. 	She had 	on occasion, 	as 	president,
placed materials 	in 	the mailboxes, 	and 	she 	did 	not 	give 	the
information 	to 	the 	site administrator. 	She 	has 	never 	been
challenged 	for 	putting materials 	in the mailboxes. 	However,
when 	she was 	visiting a 	school 	for 	the 	purpose 	of 	distributing
materials 	in 	the 	mailboxes 	she would 	announce 	her 	arrival 	at
the 	school 	office. 	In those 	instances where an administrator
was 	present, 	she never 	has 	been challenged 	for 	putting 	the
materials 	in teacher mailboxes.
From 	ITA monthly meetings 	attended 	by 	building
representatives. 	ITA determined 	that 	Inglewood 	High 	School 	was
the 	only 	school 	out 	of 	the 	19 	schools where 	the 	principal
required 	a 	copy of 	flyers 	for mailbox distribution.
9Neustadter 	has 	been active 	in 	the 	ITA for 	eight years,
including 	two 	terms 	as 	its 	president 	and 	chairperson 	of 	the 	ITA
negotiating 	team. 	She 	has 	served 	on 	the 	negotiating 	team for
several 	reopeners 	as well 	as 	the 	1980-83 	collective 	bargaining
agreement 	between the parties. 	She 	is 	a member 	of 	several 	CTA
and 	NEA 	committees 	and 	has 	attended 	numerous 	training
conferences 	on 	negotiations 	and 	leadership.
22

7. 	The October 	2 	Incident 	(Neustadter)
Neustadter 	testified 	that 	she 	had 	received 	several 	calls
from 	teachers 	at 	Inglewood 	High 	School 	and 	had 	arranged 	to 	have
a 	meeting 	during 	the 	lunch periods with 	the 	teachers. 	There
were 	80 members 	of 	the 	bargaining unit 	at 	Inglewood High School.
On October 	2. 	she went 	to 	the 	Inglewood 	High School 	for 	the
first 	time 	in 	1984-85 	school 	year. 	She 	had 	not visited 	there
the previous 	school 	year. 	She 	arrived 	at 	the 	school 	site at
approximately 	11:45. 	and went 	to 	the 	office 	and 	introduced
herself 	to 	the 	secretary and 	ask 	if 	she 	could 	speak with
Mr. 	Freeman. 	She met with Freeman and 	introduced 	herself 	as
the new president 	of 	the Association. 	Freeman, 	she said, 	told
her 	that 	he was 	a 	member 	of 	NEA and 	he 	had 	supported 	the
organization. 	He 	announced 	that 	he 	had 	some 	problems 	at 	the
school 	site 	the 	previous year. 	She 	expressed 	hope 	that 	they
could 	develop 	a 	working 	relationship.
She 	told 	Freeman 	there was 	some 	concern 	from 	the 	teachers
and 	that 	she was 	going 	to meet with 	them during 	the 	lunch
period. 	She 	asked 	if 	she 	could 	meet with Freeman 	after 	her
meeting with 	the 	teachers.
She 	testified 	that 	he 	told 	her 	that 	he 	knew teachers 	had 	a
lot 	to 	complain about 	and 	ITA 	"sort 	of would 	like 	to 	try 	to
keep up 	trouble." 	She 	said 	he 	made 	reference 	to 	the 	flyers
they were 	sending 	out 	and made 	some 	"unfriendly 	remarks" 	about
the Association. 	She 	said 	he 	also mentioned 	that 	he was 	in
23

charge 	of 	the 	school, 	and 	that 	he wanted 	to 	see 	anything 	that
teachers wanted 	to 	have 	placed 	in 	their 	mailboxes.
After 	her meeting with the 	teachers 	she went 	back 	to
Freeman's 	office 	to 	relate the 	teachers' 	educational 	concerns.
The 	teachers 	were 	concerned 	that 	school 	had 	started 	and
they 	had 	not 	received 	their 	textbooks 	or 	any 	school 	supplies.
A 	typing 	teacher 	complained 	that 	he 	had 	30 	typewriters 	and 	27
of 	them were 	not 	functioning.
When she brought 	the matter up to Mr. 	Freeman, 	she 	said, 	he
"began 	screaming 	and 	shouting at 	me 	and 	he 	said 	that 	I 	had 	no
right 	to 	come 	into 	this 	building and 	tell 	him what 	to do. 	He
was 	in 	charge 	there 	and 	he 	had 	instructed 	his 	teachers 	to write
goals 	and 	objectives, 	and 	that was what 	he wanted 	them to do."
Neustadter 	said 	she 	responded 	by 	asking 	how many 	goals 	and
objectives 	could 	the 	teachers write. 	She 	stated 	that 	they were
into 	the 	school 	year 	and 	the 	teachers wanted 	to 	begin 	their
educational 	program, 	and 	they did 	not 	have 	their 	textbooks 	or
supplies. 	She 	said 	he 	came 	around 	from the 	back 	of 	his 	desk
where he 	had 	been 	sitting, 	and 	began 	shouting 	that 	"he was 	in
charge, 	he was 	the 	chief," 	and 	"he was 	not 	going 	to allow her
to 	come 	in and 	tell 	him how to 	run his 	school."
She 	told 	him 	that 	she was 	the 	ITA representative 	and 	that
teachers 	had 	called 	her 	in because 	of 	their 	concerns, 	and 	that
if 	she 	and 	he 	could 	not 	discuss 	and 	resolve 	some 	of 	the
24

problems, 	she would have 	to 	take further 	steps. 	She 	then 	left,
she 	said. 	Neustadter 	later 	complained 	to 	the 	District
superintendent 	about 	Freeman's 	conduct.
Neustadter was 	asked, 	on direct 	examination, 	whether
anything was 	said 	by Freeman 	before 	or 	after 	her 	meeting with
the 	teachers, 	about what 	action Freeman might 	take 	in 	the 	event
that 	she 	persisted 	in her 	advocacy 	on 	behalf 	of 	his 	faculty.
Neustadter 	answered 	"no."
Freeman 	had 	no 	recall 	of 	this 	conversation with
Neustadter. 	However, 	he denied 	that 	he 	ever 	told Neustadter
that 	she 	could 	not 	have meetings. 	He 	further 	denied 	that 	he
ever 	threatened 	Neustadter 	or 	any 	teacher 	in 	the 	District 	with
any 	reprisals 	if 	Neustadter 	met 	with 	them 	on 	the 	Inglewood 	High
School 	campus. 	He 	also 	denied 	that 	he 	ever 	told 	Neustadter
that 	he 	did 	not want 	her 	coming 	to 	the 	school.
Freeman's 	denial 	of 	the 	above 	assertions were 	elicited 	by
the 	District's 	counsel 	by 	referring 	to 	portions 	of 	the unfair
practice 	charge.10
1 0 The 	amended 	charge 	asserted 	the 	following:
4. 	On or about October 2. 	1984, 	Union
President 	Genevieve Neustadter went 	to
Inglewood 	High 	School 	to 	meet with 	teachers
during 	their 	lunch 	period. 	Before 	she 	could
meet with teachers. 	Neustadter was 	ordered
to go 	to Principal 	Freeman's 	office. 	In his
office. 	Freeman 	told 	her 	she 	could 	not 	put
Union 	flyers 	and 	notices 	in 	employee
mailboxes without 	his 	approval 	and
permission. 	Freeman 	then 	interrogated
25
10
------

Neustadter 	as 	to what 	she was 	doing at 	the
school 	and what 	she 	intended 	to 	discuss with
the 	employees. 	Neustadter 	then 	left 	the
office and met with the 	teachers. 	Following
the meeting, 	at which teachers 	expressed
various 	concerns 	about working 	conditions 	at
Inglewood 	High 	School. 	Neustadter 	returned
to Freeman's 	office 	to discuss 	these
concerns with Freeman. 	Freeman 	threatened
Neustadter 	and 	the 	employees 	working 	at
Inglewood 	High 	School 	with unspecified
reprisals 	if 	she 	persisted 	in meeting with
employees at that school, 	and told
Neustadter 	that 	he 	did 	not want 	her 	coming
to 	his 	school 	and 	that 	he was 	the 	"chief" 	at
his 	school 	and would 	run 	the 	school 	anyway
he wanted.
Freeman's 	denial 	of 	the assertions 	in the pleadings,
coupled with 	the 	absence 	of 	direct 	testimony 	by Neustadter 	of
any 	suggested 	reprisal 	by Freeman 	for 	future 	meetings 	with
employees 	lead 	me 	to 	conclude 	that 	Freeman did 	not 	threaten
Neustadter 	with 	reprisal 	for 	meeting with 	employees 	at 	the
school. 	It 	is 	further 	concluded 	that 	Freeman did 	not 	tell
Neustadter 	that 	he 	did 	not want 	her 	to 	come 	to 	the 	school. 	By
her 	own 	testimony. 	Freeman 	told 	her 	he 	did 	not want 	her 	to 	come
to 	the 	building and 	tell 	him how to 	run 	the 	school. 	This 	is
not 	a 	prohibition against 	coming 	to 	the 	campus, 	or meeting with
teachers 	at 	the 	campus. 	By Neustadter's 	own testimony. 	Freeman
said 	nothing 	to 	her 	about 	actions 	against 	her 	for 	continued
advocacy 	on 	behalf 	of 	the 	faculty.
8. 	The October 	19 	Incident 	(Neustadter)
ITA planned 	to 	hold 	a 	rally at 	the 	District 	office 	on
October 	22. 	ITA was 	encouraging 	teachers 	to 	come 	out and
26

support 	the 	negotiations 	effort 	and 	were 	providing 	picket 	signs
for 	teachers. 	The 	individual 	building 	representatives were
responsible 	for 	making 	picket 	signs 	for 	the 	teachers 	in 	their
respective 	buildings.
On October 	19, 	1985 	Neustadter 	personally delivered 	poster
boards 	and wooden sticks 	to many of 	the 	school 	sites, 	often
leaving 	them at 	the 	school 	office. 	During 	this 	mission 	she
went 	to 	the 	Inglewood High School 	office 	and 	spoke 	to 	the
office 	secretary. 	She 	identified 	herself 	as 	president 	of 	the
Inglewood 	Teachers 	Association 	and 	told 	the 	secretary 	she 	had
some materials 	she wanted 	to 	give 	to Dillen. 	The 	secretary
told 	her 	she 	should 	take 	the 	materials 	down 	to Dillen's 	room
and 	gave 	her 	directions 	to 	Dillen's 	classroom.
She went 	to 	Dillen's 	classroom 	and 	spoke with Dillen 	for
less 	than a minute. 	Just 	as 	she was 	about 	to 	leave 	she was
told by Mr. 	Brownley, 	the dean of 	students, 	that Freeman wanted
to 	see 	her 	in his 	office 	immediately.
She went 	to Freeman's 	office and. 	she 	said, 	he 	immediately
began 	screaming 	at 	her 	saying 	that 	she 	had 	no 	right 	to 	go 	to
Dillen's 	classroom 	and 	that 	he 	had 	stated 	previously 	that
whenever 	she 	came 	to 	the 	school 	site 	she was 	to 	let 	him know
she was 	there. 	Neustadter 	said 	she 	tried 	to 	explain 	to Freeman
that 	she 	had 	come 	to 	the 	office 	and 	had 	stated 	her 	purpose
after 	identifying herself 	to his 	secretary, 	but, 	she said, 	he
continued 	to 	scream and 	intimidate 	her.
27

Both the October 2, 	and October 19, 	meetings, 	she said,
made 	her 	feel 	threatened. 	She was very 	intimidated, 	his 	being
over 	six 	feet 	tall 	and 	she 	being 	four 	feet 	ten and 	one-half
inches 	tall. 	The threat, 	she said, 	was due to the proximity
and 	the volume of 	his voice.
On 	cross-examination, 	she 	admitted 	she 	could 	have 	left 	the
materials with the 	secretary, 	as 	that 	is what 	she 	had 	done with
the 	other 	schools. 	She 	denied 	that 	Freeman had 	indicated 	to
her 	at 	the 	October 	2 	meeting 	that 	she 	should 	check with him
before visiting 	the 	teachers. 	She 	said 	it was 	on October 	19
that 	he 	told 	her 	that was what 	he wanted 	her 	to do.
She was 	aware 	of 	District 	policies 	requiring visitors 	to
check 	in with the 	office, 	she 	said, 	before going onto 	a
campus. 	The policy, 	she says, 	is to report to the office, 	it
does 	not 	say the principal's 	office. 	However, 	she assumes 	that
the 	policy means 	the 	principal's 	office.
She 	said 	October 	19 was 	the 	first 	time 	she 	had 	heard 	the
Freeman 	"scream" 	scream. 	Teachers 	had 	told 	her 	prior 	to 	that
date 	that 	Freeman 	often 	raised 	his 	voice.
Freeman 	testified 	that 	it was 	not 	sufficient 	that 	a 	visitor
report 	to 	the 	secretary. 	They must 	talk 	to 	either 	the
principal 	or 	the 	administrator. 	The 	reasons 	are 	for 	security,
safety, 	and 	non-interruption of 	the 	teaching period. 	They do
not 	even allow subpoenas 	to 	be 	delivered 	on the 	campus.
He 	had 	directed 	his 	dean of 	students 	to ask Neustadter 	to
return to 	his 	office 	and make 	her 	business 	known, 	because 	she
28

did 	not 	get 	to 	the 	principal 	or 	an administrator when 	she 	came
in.
He 	recalled 	that 	he 	reminded Mrs. 	Neustadter 	that what 	he
would 	like was 	"common 	courtesy." 	He 	recalled 	that 	at 	that
moment 	she 	began 	to 	tell 	him what 	ITA was 	and what 	it 	did 	not
have to do. 	He reminded her 	that 	"it was 	a new day, 	a 	new
issue, 	a 	new principal, 	and new things are done and you'll 	have
to 	do 	it 	this way." 	This meant 	that 	she 	had 	to 	check 	in with
the 	administrator 	or 	the principal. 	He 	requires 	the same of
everyone.
Again. 	Freeman was 	referred 	to 	the 	amended 	unfair 	practice
charge on page 5, 	line 16, 	where 	it was stated, 	"she was then
ordered 	to 	go 	to Freeman's 	office where 	she was 	again
threatened 	and 	told 	by Freeman 	that 	she 	had 	no 	right 	to visit
Inglewood 	High School 	and 	that 	he was 	the 	'chief.'"
Freeman 	testified 	that 	he 	never 	told Mrs. 	Neustadter 	that
she 	could 	not 	have meetings, 	or 	that 	she 	did 	not 	have 	the 	right
to visit 	Inglewood. 	He 	thought 	that 	he 	had 	told 	her 	that 	she
had 	no 	right 	to 	go 	out 	on 	the 	campus without 	coming 	by 	the
principal's 	office. 	That was 	the 	issue, 	he 	said, 	Neustadter
was 	insisting 	on her 	right 	to 	go where 	she 	pleased 	because 	she
was 	an 	ITA president 	and 	he 	told 	her 	she 	had 	no 	right 	to walk
on the 	campus without 	letting 	him know that 	she was 	there.
Freeman 	testified 	that 	he 	is 	very 	animated 	and 	he 	talks
loud 	anywhere. 	In his 	perception he 	does 	not 	scream at
29

people. 	However, 	he 	testified 	that 	he 	thought 	"when a person
is 	on the 	carpet 	and when a 	person knows 	he 	or 	she 	has 	done
something, 	a whisper will 	sound 	like a 	thundercloud." 	It has
been 	his 	experience 	at 	Inglewood 	High 	School 	that 	anything you
say 	is 	perceived 	to 	be 	a 	threat. 	"A good 	PR 	job that 	they've
done 	and 	I 	certainly don't 	talk with my 	head 	in my 	hand." 	He
denied 	that he 	is 	excitable, 	but he 	is 	"very animated," 	he
said. 	He denied 	that he 	ever 	screamed 	at Mrs. 	Neustadter.
saying, 	"no, 	I 	don't scream at 	that dear person." 	He denied
that 	he 	ever 	screamed 	at Dillen. 	But 	he has 	talked 	to 	them 	in
an 	"animated, 	authoritative fashion, 	absolutely," 	he 	said.
ISSUES
The 	issues 	in 	this 	case 	are whether 	the District 	violated
Government Code section 3543.5(a), 	(b) 	or 	(c) 	by any of the
following:
1. 	Refusing and 	failing 	to 	implement 	the 	terms 	of 	the
January 	1984 	settlement 	agreement 	regarding 	bell 	schedules 	for
fall 1984;
2. 	Assigning 	level 	B classes 	to Dillen for 	fall 	1984;
3. 	Requiring 	building 	representatives 	to 	advise 	the
principal 	at 	Inglewood 	High 	School 	when Association materials
were 	to be placed 	into the teachers' 	mailboxes;
4. 	Imposing 	reprimands 	upon Robert 	Dillen 	for 	placing
materials 	into 	teachers' 	mailboxes without prior 	notice 	to the
principal;
30

5. 	Threatening 	the Association President 	Neustadter with
reprisals 	for 	meeting with 	employees 	at 	Inglewood 	High 	School
or 	for 	failing 	to 	notify 	the 	principal 	of 	her 	visit 	to 	the
classroom of 	a 	teacher 	building 	representative.
CONCLUSIONS 	OF 	LAW
A. 	The 	Bell 	Schedule
It 	is 	undisputed 	that 	the District 	did 	not 	implement 	the
terms 	of 	the 	settlement 	agreement 	calling 	for 	conditions 	to
prevail 	in September 	1984.
The 	District urges 	that 	PERB does 	not 	have 	the 	jurisdiction
to enforce agreements 	between the parties, 	relying 	on
University of 	California 	(1983) 	PERB Decision No. 	362-H.11
The Association 	argues 	that 	under 	the 	holding 	of Grant
Joint Union School 	District 	(1982) 	PERB Decision No. 	196 	that
the District's 	failure 	to 	implement 	the 	settlement 	agreement
was 	a violation of 	its 	duty 	to 	bargain 	in good 	faith.
Subsection 3541.5(b) 	provides:
The 	board 	shall 	not 	have 	authority 	to
enforce agreements 	between the parties, 	and
shall 	not 	issue 	a 	complaint 	on any 	charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice under 	this 	chapter.
In Grant, 	supra, 	the Board 	reversed 	in part a 	Board 	agent's
dismissal 	of 	an unfair 	practice 	charge 	for 	failure 	to 	state 	a
i:LIn 	that 	case 	the 	PERB upheld 	a 	Board 	agent's 	dismissal
of 	an unfair 	practice 	charge 	for 	failure 	to 	state 	a 	prima 	facie
case.
31

prima 	facie 	case where under 	the Board's 	analysis 	of 	that 	case,
the 	allegations 	of 	the 	charge 	suggested 	conduct 	amounting 	to 	an
unfair 	practice 	charge 	in addition 	to 	constituting 	a 	breach 	of
the 	negotiated 	agreement. 	Noting 	the 	express 	proviso 	on 	the
Board's 	statutory 	limitation 	on 	jurisdiction 	(that 	would 	not
also 	constitute 	an unfair 	practice) 	the 	Board 	reasoned 	that
conduct 	constituting 	an unfair 	practice was 	not 	beyond 	its
authority to 	remedy, 	just 	because 	the 	conduct might 	also
constitute 	a 	contract 	breach.
Said 	PERB:
The Act 	is 	designed 	to 	foster 	the
negotiation process. 	Such a 	policy is
undermined 	when 	one 	party 	to 	an 	agreement
changes 	or 	modifies 	its 	terms without 	the
consent 	of 	the 	other 	party. 	PERB 	is
concerned, 	therefore, 	with a unilateral
change 	in 	established 	policy which
represents 	a 	conscious 	or 	apparent 	reversal
of a 	previous understanding, 	whether 	the
latter 	is 	embodied 	in a 	contract 	or 	evident
from the parties' 	past practice. 	Anaconda
Aluminum Co. 	(1966) 	160 NLRB 35 	[62 LRRM
1370], 	Perry Rubber Co. 	(1961) 	133 NLRB 275
[48 	LRRM 1630].
In the words 	of 	the National 	Labor Relations
Board:
. 	. 	. 	[Such] conduct. 	. 	. 	. 	[amounts]
to a 	rejection of 	the most 	basic 	of
collective bargaining principles 	. 	. 	.
the 	acceptance 	and 	implementation 	of
the 	bargaining 	reached 	during
negotiations. 	Sea 	Bay Manor Home
(1980) 	253 NLRB 68 	[106 LRRM 1010.
1012].
This 	is 	not 	to 	say that 	every breach of
contract also violates 	the Act. 	Such a
breach must 	amount 	to a 	change 	of 	policy.
32

not merely a 	default 	in a 	contractual
obligation, 	before it constitutes a
violation of 	the 	duty to 	bargain. 	This
distinction 	is 	crucial. 	A change of policy
has, 	by definition, 	a generalized effect or
continuing 	impact upon 	the 	terms 	and
conditions 	of 	employment 	of 	bargaining unit
members. 	On the other hand, 	when an
employer 	unilaterally 	breaches 	an 	agreement
without 	instituting 	a 	new policy 	of 	general
application or 	continuing 	effect, 	its
conduct, 	though remediable 	through 	the
courts 	or 	arbitration, 	does 	not violate 	the
Act. 	The 	evil 	of 	the 	employer's 	conduct,
therefore, 	is not 	the breaching of 	the
contract 	per 	se, 	but 	the altering of 	an
established 	policy 	mutually 	agreed 	upon 	by
the 	parties 	during 	the 	negotiation 	process.
Walnut 	Valley 	Unified 	School 	District
(3/30/81) 	PERB Decision No. 	160; 	C & S
Industries 	(1966) 	158 NLRB 454 	[62 LRRM
1043]. 	By unilaterally altering or
reversing 	a 	negotiated 	policy, 	the 	employer
effectively 	repudiates 	the 	agreement.
(Citation 	omitted.)
Here 	the 	parties 	had 	negotiated 	a 	new policy 	on 	bell 	schedules
and 	passing 	time 	between 	classes. 	That 	policy was 	to 	take
effect 	commencing with 	the 	fall 	1984 	school 	term. 	The 	District
refused 	to 	implement 	the 	negotiated 	policy, 	and 	the 	refusal 	had
a 	generalized 	effect 	and 	continuing 	impact 	upon 	the 	terms 	and
conditions 	of 	employment 	of 	bargaining unit members.
The University case, 	relied upon by the District, 	is
distinguishable 	from the 	facts 	of 	this 	case. 	There 	the
settlement agreement, 	among other 	things, 	called 	for
reclassification of 	a 	gardener 	to 	a 	level 	not 	given by 	the
University. 	The 	breach did 	not 	reach 	the 	level 	of 	having
generalized 	effect 	or 	continuing 	impact 	upon 	terms 	and
33

conditions 	of 	employment 	of 	bargaining unit 	members 	generally,
but upon 	only 	one 	individual.
The District 	contends 	that 	it was 	free 	to 	reduce 	the
passing 	period 	by 	five minutes 	and 	to 	increase 	the 	lunch period
by five minutes. 	Those actions 	are not negotiable, 	argues 	the
District, 	because 	they do 	not 	affect 	the 	length of 	the working
day or 	existing duty-free 	time, 	relying on San Mateo City
School District 	(1980) 	PERB Decision No. 	129; 	affirmed 	in
(1984) 	PERB Decision No. 	375a. 	It distills 	the effect 	of the
failure 	to 	implement 	the 	agreement 	as 	an 	"unlawful 	reduction 	of
the 	passing 	period 	between 	three 	and 	four 	by 	one 	minute 	and
increased 	the 	third 	period 	by 	one minute," 	but 	contends 	that
the 	change 	is 	de minimis.12 Because 	of 	the 	pending
negotiations 	and 	assumed 	imminent 	settlement, 	the District
wished 	to 	avoid 	altering 	the 	bell 	schedule 	mid-term.
San Mateo, 	supra, 	however, 	does not empower the employer to
reduce 	the 	passing 	periods 	or 	to 	increase 	lunch periods
unilaterally. 	It 	does 	stand 	for 	the 	principle 	that 	educational
issues, 	central 	to 	the maintenance 	of 	the mission of 	the
school, 	are 	beyond 	the scope 	of 	representation. 	Those matters
affecting the hours 	of 	employees, 	including preparation time,
duty-free time and 	lunch periods, 	are 	subject 	to negotiations.
1 2 The District 	does 	not 	argue 	that 	the 	effect 	of 	the
changes 	in 	time 	between periods 	or 	duty-free 	time 	is 	not
negotiable 	or 	that 	ITA 	failed 	to 	show any 	impact 	on working
conditions 	by the 	change 	in the 	bell 	schedule.
34

Here, 	the District was 	free 	to adjust 	the 	students passing
time, 	but was 	obligated 	to 	negotiate with 	ITA on the 	decision
to 	the extent 	it 	affected 	teachers' 	duty-free 	time. 	As 	the
facts 	show, 	the District 	abolished 	a 	15-minute student
nutrition 	period 	preceding 	the 	third 	class 	period. 	While 	five
minutes 	was 	added 	to 	the 	lunch period 	and 	one minute 	to 	each
passing 	period, 	there was 	also 	added 	one minute 	to 	each class
period. 	That 	addition 	resulted 	in 	less 	duty-free 	time 	teachers
previously 	enjoyed 	as 	part 	of 	the 	nutrition period. 	The
settlement 	agreement, 	which the District 	failed 	to 	implement,
and which 	is 	the basis 	of 	this 	charge, 	was 	to revive at 	least
six minutes 	of 	duty-free 	time 	by 	the 	addition of 	that 	amount 	of
time 	to 	the 	passing 	time 	between 	the 	third 	and 	fourth 	periods.
In addition, 	the 	third period was 	to be 	reduced 	by one minute.
According 	to Neustadter, 	the 	agreement went 	to 	reinstating
seven-minutes.
The 	District's 	de minimis 	argument 	is 	likewise 	rejected.
In Moreno Valley Unified 	School 	District 	(1982) 	PERB Decision
No. 	206. 	the Board 	held 	that 	the 	reduction of 	five minutes
preparation time was 	not 	so 	negligible as 	to 	be 	insignificant,
because 	cumulative 	effects 	of 	changes made 	on a 	minuscule 	basis
would ultimately alter 	hours 	of 	employment. 	Similarly, 	here
the 	seven minutes 	of 	duty-free 	time 	denied 	teachers 	in 	the 	fall
of 	1984, 	while small, 	could, 	if authorized, 	be undertaken again
and 	thus 	drastically 	affect working 	hours.
35

Here 	all 	bargaining unit 	members 	of 	the 	two 	high 	schools
were 	affected 	for 	the 	fall 	term of 	1984. 	This was 	due 	to 	the
failure 	to 	implement 	the 	agreed-upon 	policy 	of 	the 	bell
schedule 	and 	passing 	time 	and was 	the 	alteration 	of 	an
established 	policy 	mutually 	agreed 	upon 	by 	the 	parties 	during
the 	negotiation process. 	As 	a 	result 	teachers 	had 	seven 	fewer
minutes 	duty-free 	time. 	The District's 	failure to 	implement
the agreed-upon bell 	schedule was 	a violation of 	its 	duty to
bargain 	in good 	faith, 	mandated by subsection 3543.5(c). 	There
are 	also 	concurrent violation of 	subsections 	3543.5(b) 	and
(a). 	San Francisco Community College District 	(1979) 	PERB
Decision No. 	105.
B. 	Inglewood 	High 	School
1. 	Assignment 	of 	Level 	B Classes 	to 	Dillen
The 	ITA charges 	that Dillen's 	fall 	1984 	class 	assignment 	to
all 	B 	level 	classes was made 	by the District 	in reprisal 	for
his 	protected 	activities.
Under 	subsection 	3543.5(a) 	it 	is unlawful 	for 	the 	employer
to:
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.
In Novato Unified 	School 	District 	(1982) 	PERB Decision
No. 	210. 	the Board held 	that 	a 	party alleging discrimination or
reprisal 	has 	the 	burden 	of 	making 	a 	showing 	sufficient 	to
36

demonstrate 	that 	protected 	conduct was 	a 	"motivating 	factor" 	in
the 	employer's 	decision 	to 	engage 	in 	the 	conduct 	of which 	the
employee 	complains.13 Unlawful 	motive 	is 	the 	specific 	nexus
required 	in the 	establishment 	of 	a 	prima 	facie 	case. 	In
recognition 	of 	the 	fact 	that 	direct 	evidence 	of 	motivation 	is
seldom available, 	unlawful 	motivation may 	be 	demonstrated
circumstantially and 	from the 	record 	as 	a whole. 	Carlsbad
Unified 	School District, 	supra; 	Republic Aviation Corp. 	v. 	NLRB
(1945) 	324 U.S. 	793 	[16 LRRM 620]. 	If 	the charging party is
able, 	by direct 	or 	circumstantial 	evidence, 	to raise the
inference 	that 	the 	employer was 	motivated 	to 	take 	adverse
personnel 	action 	by 	its 	knowledge 	of 	the 	employee's 	protected
activity, 	the 	burden shifts 	to 	the 	employer 	to demonstrate 	that
it would 	have 	acted 	as 	it 	did 	regardless 	of 	the 	employee's
participation in protected activity. 	Novato, 	supra; 	Wright
Line. 	A Division of Wright Line. 	Inc. 	(1980) 	251 NLRB 1083 	[105
LRRM 1169]; 	NLRB v. 	Transportation Management Corp. 	(1983)
U.S. 	[113 	LRRM 2857]; 	Martori Brothers Distributors v.
Agricultural Labor Relations Board 	(1981) 29 Cal.3d 721.14 14
13In 	order 	to 	prevail, 	the 	charging 	party must 	prove 	the
charge 	by a 	preponderance 	of 	the 	evidence. 	PERB 	regulation
32178.
14The 	construction 	of 	similar 	or 	identical 	provisions 	of
the NLRA, 	as amended. 	29 U.S.C. 	151 et seq., 	may be used to
guide 	interpretation of 	the EERA. 	See, 	e.g. 	San Diego Teachers
Assn. 	v. 	Superior Court 	(1979) 	12 Cal.3d 1. 	12-13; 	Fire
Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 	608. 	616.
37

To 	justify 	such 	an 	inference, 	the 	charging 	party must 	prove
that 	the 	employer 	had 	actual 	or 	imputed 	knowledge 	of 	the
employee's 	protected 	activity, 	Novato Unified 	School 	District,
supra; 	Moreland 	Elementary School 	District 	(7/27/82) 	PERB
Decision No. 	224. 	Such knowledge, 	plus 	other 	factors 	cited 	by
PERB 	in Novato, 	may support 	the 	inference of unlawful motive.
Said 	PERB:
The 	timing 	of 	the 	employer's 	conduct 	in
relation 	to 	the 	employee's 	performance 	of
protected 	activity, 	the 	employer's 	disparate
treatment 	of 	employees 	engaged 	in 	such
activity, 	its 	departure 	from established
procedures 	and 	standards 	when 	dealing with
such employees, 	and 	the 	employer's
inconsistent 	or 	contradictory 	justifications
for 	its 	actions 	are 	facts which may 	support
the 	inference 	of unlawful 	motive.
The 	mere 	fact 	that 	an 	employee 	is 	participating 	in union
activities 	does 	not 	insulate 	him or 	her 	from discharge 	for
misconduct 	or 	give 	the 	employee 	immunity 	from 	routine
employment 	decisions. 	Martori 	Brothers 	Distributors 	v.
Agricultural Relations Board, 	supra. 	29 Cal.3d 721. 	Rather,
once 	employee misconduct 	is demonstrated, 	the 	employer's action,
. 	. 	. 	should not be deemed an unfair 	labor
practice unless 	the 	Board 	determines 	that
the 	employee would 	have 	been 	retained 	"but
for" 	his union membership 	or 	his 	performance
of 	other 	protected 	activities.
Applying these 	standards 	to the 	instant 	case, 	it must 	be
concluded 	that 	ITA 	failed 	to 	raise 	an 	inference 	of 	unlawful
motive 	in 	the District's 	assignment 	of Dillen's 	fall 	1984 	class
schedule.
38

The 	record 	shows 	that Martin made 	the 	assignments 	of
schedules 	in August 	1984. 	resulting 	in Dillen's 	assignment 	of
five 	level 	B 	classes. 	The 	record 	also 	shows 	that 	she was 	aware
of Dillen's 	active 	participation 	in 	ITA activities, 	as 	she
chaired 	the 	faculty meetings 	prior 	to January 	1984. 	at which
Dillen made 	ITA announcements. 	The 	record 	is 	less 	clear,
however, 	contrary to 	ITA's arguments, 	of Freeman's 	knowledge of
Dillen's 	ITA activity. 	Dillen only 	testified 	that 	he 	"assumed"
Freeman was 	aware 	that 	Dillen was 	building 	representative
because 	"it wasn't 	hidden 	information" 	and 	he 	did 	his 	mailbox
work 	in an open manner. 	However, 	Freeman's 	knowledge 	of
Dillen's 	protected 	activity 	is 	not 	material 	to a 	resolution of
the 	instant 	issue 	as 	the 	findings 	have 	established 	that 	Freeman
had 	no 	input 	into 	giving Dillen 	the 	five 	level 	B 	classes 	as
Martin was 	the 	one who 	made 	the 	assignments.
As 	to 	timing. 	Martin's 	decision to 	give Dillen 	five 	level 	B
classes 	appears 	remote 	from his 	activity 	of 	outlining 	ITA
activities 	at 	faculty meetings which 	she 	chaired. 	Furthermore.
Dillen 	had 	been 	site 	representative 	for 	over 	one-half 	of 	his
fourteen years 	at 	the District 	and 	four 	of 	the 	last 	three years
(1982-85) 	during which Martin was 	scheduling 	classes 	and 	for
which he 	had 	no 	complaints, 	even for 	the years 	during which he
had 	been 	assigned 	only 	one 	level 	A class. 	There 	is 	simply
nothing 	in 	the 	record 	to 	suggest 	that 	some 	interim 	event would
39

trigger Martin's 	adverse 	reaction 	to Dillen and 	cause 	her 	to
give him all 	level 	B classes.
Other 	indicia 	for 	finding 	an 	inference 	of 	unlawful 	motive
are 	lacking 	here 	altogether. 	According 	to 	the undisputed
testimony 	of Martin, 	six other 	teachers 	had 	all 	level 	B
classes. 	(By 	his 	own determination Dillen 	had 	found 	two 	other
teachers 	in his 	department who 	had 	all 	level 	B 	classes.) 	There
is 	no 	showing 	that 	the 	other 	teachers were 	given 	such 	classes
for 	protected 	EERA activity. 	Thus, 	there 	is 	no disparagement
of 	treatment 	to Dillen.
Likewise 	absent 	is 	any 	showing 	of 	departure 	from procedures
and 	standards 	in Dillen's assignment. 	Dillen 	only 	testified
that 	he 	had 	never had all 	level 	B classes, 	not 	that 	no teacher
had 	ever 	been 	so 	assigned. 	The 	procedures 	by which Martin
considered 	the 	needs 	of 	the 	classes 	and 	preferences 	of 	teachers
were 	standard 	factors 	employed 	in making 	the 	assignment.
Dillen's 	own 	spring 	1984 	preference re-guested one 	level 	B 	class
and 	did 	not 	specify 	the 	rest were 	to 	be 	level 	A by preference.
Finally, 	the District's 	explanation of 	the 	assignment 	brings 	no
inference 	of unlawful motive. 	The 	fact 	of 	the matter 	is 	that
there were more 	level 	B 	classes 	than 	level 	A classes 	and 	more
teachers were 	required 	to 	teach 	level 	B 	classes.
In sum, 	an 	inference 	cannot 	be drawn from the 	foregoing
observations 	that Martin was 	motivated 	unlawfully 	in making 	the
assignments 	for Dillen 	in the 	fall 	of 	1984.
40

Even 	if 	an 	inference 	is 	to 	be 	raised, 	it 	is 	found 	that 	the
District 	has 	met 	its 	burden 	to 	show that 	the 	assignment would
have 	taken 	place 	notwithstanding 	Dillen's 	protected 	activity.
As 	the 	testimony of Martin reveals, 	the District had more
level 	B 	than 	level 	A classes 	and 	thus 	needed more 	teachers 	for
the 	level 	B assignments. 	Six 	other 	teachers were 	given 	level 	B
class assignments 	also. 	For 	the foregoing reasons, 	it 	is 	found
that Dillen's 	fall 	1984 	class 	assignment 	of 	all 	level 	B 	classes
was 	not 	a violation of 	the EERA. 	This 	portion of 	the 	charge
must 	be 	dismissed.
2. 	The 	Prior 	Notice Requirement 	Regarding Use 	of Mailboxes
Shortly 	after 	his 	arrival 	at 	Inglewood 	High 	School.
Principal 	Freeman 	told 	the 	teachers 	that 	he was 	to 	be 	notified
if 	anyone was 	going 	to 	place materials 	into 	the 	teachers'
mailboxes. 	This 	rule was 	imposed 	only by him. 	at 	Inglewood,
and 	not 	at 	any 	of 	the 	other 	schools 	operated 	by 	the 	District.
Section 3543.l(b) 	provides:
Employee 	organizations 	shall 	have 	the 	right
of 	access 	at 	reasonable 	times 	to areas 	in
which employees work, 	the 	right 	to use
institutional 	bulletin boards, 	mailboxes,
and 	other means 	of 	communication, 	subject 	to
reasonable 	regulation, 	and 	the 	right 	to use
institutional 	facilities 	at 	reasonable 	times
for 	the 	purpose 	of 	meetings 	concerned with
the 	exercise 	of 	the 	rights 	guaranteed 	by
this 	chapter.
The 	express 	right 	to use 	institutional 	mailboxes 	is 	subject 	to
reasonable 	regulation. 	If 	Freeman's 	rule 	of 	prior 	notification
41

is 	reasonable, 	then no violation could 	follow for 	his
imposition of 	the 	rule.
In 	Richmond 	Unified 	School 	District/Simi 	Valley 	Unified
School District 	(1979) 	PERB Decision No. 	99, 	the Board 	examined
the 	employer's 	regulation 	on use 	of 	school 	mail 	systems 	for
reasonableness. 	After 	concluding 	that 	the use 	of mail 	systems
was 	a 	guaranteed 	right under 	the 	EERA, 	the 	Board 	held 	that 	the
employer 	regulation under 	section 	3543.l(b) 	should 	be 	narrowly
drawn to cover 	the time, 	place, 	and manner of 	the activity,
without 	impinging 	on the 	content unless 	it 	presents 	a
substantial 	threat 	to 	peaceful 	school 	operations.
The 	District 	argues 	that 	Freeman's re-guest for 	prior 	notice
regarding 	placement 	of 	material 	in 	the mailboxes 	does 	not
regulate 	or 	impinge 	on the 	content 	of 	the materials, 	but
enables 	him to prevent unauthorized use 	of 	the boxes. 	Freeman,
urges 	the District, 	does 	not 	review the materials 	for 	content
and 	has 	never 	censored 	materials 	or 	prevented 	teachers 	from
using the boxes. 	This 	simple 	rule, 	applied 	to all users 	of 	the
mailboxes, 	and not 	just 	ITA, 	urges the District, 	is a
reasonable 	rule.
The 	burden 	of 	demonstrating 	reasonableness 	rests 	with 	the
employer. 	Richmond, 	supra. 	On 	its 	face, 	a 	simple requirement
of 	notice 	of 	intent 	to use 	the mailboxes 	arguably would 	stand
as 	a 	rule within the meaning of 	time, 	place and manner 	of 	an
activity 	authorized 	by Richmond. 	The 	facts 	of 	this 	case 	do 	not
42

support 	the 	conclusion 	that 	prior 	notice 	for use was 	the 	basis
for 	the 	rule.
At the onset, 	it 	is noteworthy that prior notice was not
required 	for 	use 	of 	the 	Inglewood 	Unified 	School 	District 	mail
system but 	only at 	Inglewood High School. 	This 	is 	just 	the
converse of 	the situation in Richmond, 	supra, 	where the Board
found, 	as a 	basis for holding a 	regulation unreasonable, 	that
materials 	precluded 	from 	the 	mail 	systems 	could 	be 	placed
directly 	into 	the 	teacher mailboxes. 	Such 	inconsistency
mitigated 	against 	any 	special 	interest 	on 	the 	part 	of 	the
employer 	for 	justification of 	the 	rule. 	Here, 	neither 	the
District 	itself 	nor 	the 	principals 	in 	the 	18 	other 	schools
within 	the District, 	required 	such prior 	notice.
Turning to the 	reasons 	for 	the rule, 	or 	"practice," 	as
Freeman 	styled 	the 	requirement, 	it 	is 	likewise 	concluded 	that
no 	basis 	in fact 	serves 	the District's 	interest 	in preventing 	a
substantial 	threat 	to 	peaceful 	school 	operations.
Freeman required 	the 	prior 	notice 	as 	a 	matter 	of 	"courtesy"
to 	the 	principal 	as 	custodian of 	the mailboxes. 	He 	required
the 	prior 	notice 	of 	anyone who was 	going 	to use 	the mailboxes.
Sometimes 	he would 	look at 	the material 	but, 	if 	he 	knew the
person, 	he did 	not 	always 	ask 	to 	see 	the material. 	The purpose
of the rule was. 	in his words:
Some 	persons 	might 	be 	offended 	by 	some
things 	that 	are placed 	in the box. 	They
might 	not want 	to 	be 	involved with 	it.
43

Students might 	get 	hold 	of 	materials 	that
would 	be offensive to parents, 	because of
the nature of the material, 	i.e., 	religious
nature.
Freeman 	cited 	an 	instance where 	someone 	placed 	materials 	on 	tax
sheltered 	annuities 	into 	the 	mailboxes 	and 	he 	had 	to 	admonish
the 	person 	regarding 	their 	failure 	to 	get 	District 	approval 	for
placement 	of 	the material 	into 	the mailboxes.
He wanted 	prior 	notice 	from 	the 	ITA 	so 	he 	could 	defend 	the
action. 	This meant, 	he said, 	that 	"there are members 	of the
faculty who 	are 	not 	ITA members 	and who 	don't want 	to 	receive
information from 	ITA." 	This meant 	that 	they have 	a 	right 	not
to 	receive 	the 	ITA material 	and 	he wanted 	everyone 	to 	have
their 	rights 	taken 	care 	of. 	Despite 	these 	reasons 	for wanting
prior 	notice. 	Freeman then 	testified 	that 	he 	really 	only wanted
to 	know that materials were 	being placed 	into 	the 	boxes, 	and
was 	not 	really 	interested 	in what was 	in 	the materials. 	The
reasons 	are 	inherently 	inconsistent, 	and 	standing 	separately
have no 	basis 	for 	justification of 	the 	rule. 	They are
inherently 	inconsistent 	because, 	in the 	first 	place. 	Freeman
refused to call 	it a rule, 	but rather, 	in his words, 	"a
practice, 	more or 	less." 	This 	suggests 	less 	than strict
observance 	in application and 	renders 	the practice 	suspect, 	as
it 	appears 	to 	serve 	to apply at 	his whim or 	pleasure.
In the 	second place. 	Freeman could not 	tell 	if 	the
materials were offensive 	to teachers 	or 	to 	children, 	unless 	he
were 	to 	look at 	each document. 	By his 	own 	testimony, 	he 	often
44

did 	not 	look 	at 	the materials. 	How could 	he 	determine 	its
potential 	for 	offensiveness unless 	he 	looked 	at 	and 	read 	the
materials?
In addition. 	Freeman's 	concern 	about 	access 	to 	"offensive
material" 	by 	children 	could 	be more 	appropriately 	addressed 	in
regulations concerning the time, 	place, 	manner, 	and content of
the 	materials 	that would 	provide 	advance 	notice 	to 	anyone 	using
the mails. 	Once again, 	the absence of 	a District-wide 	concern
(by 	the 	absence 	of 	a 	District-wide 	rule 	on the 	issue) 	mitigates
against 	Freeman's 	concern 	and/or 	practice.
PERB has 	already 	addressed 	the 	role 	of 	the 	employer 	in
juxtaposition 	of 	employees who might 	choose 	to 	refrain 	from
engaging 	in employee 	organization activities. 	In Long Beach
Unified 	School District 	(1980) 	PERB Decision No. 	130 PERB
stated:
While 	the 	district 	may 	legitimately
promulgate 	rules 	to 	prohibit 	disruptive
conduct, 	the EERA does 	not 	establish the
public 	school 	employer 	as 	the 	guardian 	of
the 	employees' 	undisputed 	right 	to 	refrain
from participating 	in 	the 	activities 	of
employee 	organization 	. . . . 	In 	balancing
the 	right 	of 	access 	of 	organizations 	and 	the
right 	of 	individual 	employees 	to 	participate
or 	refrain 	from participating 	in
organizational 	activities, 	the Board 	finds
the 	latter 	right 	is 	adequately 	protected 	in
that 	disinterested 	employees 	are 	not 	a
captive 	audience 	and 	may 	simply 	leave 	the
nonworking 	areas 	or 	otherwise 	ignore 	the
organizational 	activities.
See 	also 	San Ramon Valley Unified 	School 	District 	(1982) 	PERB
Decision No. 	230. 	The Long Beach case 	dealt with employee
45

organizations' 	rights 	to meet with employees 	in nonworking
areas 	during 	nonwork 	time. 	This 	case 	deals 	with 	the 	statutory
right 	to use mailboxes 	and 	parallels 	the 	right 	of 	access 	of
employee 	organizations. 	Employees 	desirous 	of 	refraining 	from
the 	activities 	of 	employee 	organizations 	are 	no more 	captive
audiences 	in receiving materials 	in 	their 	mailboxes, 	which upon
receipt 	they 	can 	immediately discard, 	than a 	disinterested
employee 	in a 	nonwork area, 	who 	is 	free 	to 	leave when
confronted 	with 	hearing 	information 	he 	or 	she 	is 	disinterested
in. 	It 	is 	simply not Freeman's 	job to monitor mail 	on behalf
of 	disinterested 	employees.
The 	record 	is 	barren of 	any evidence 	of 	a District 	rule
regarding 	prior 	approval 	of 	the District 	for 	certain 	kinds 	of
materials 	prior 	to 	insertion 	in mailboxes. 	The 	record 	does
show that 	no 	other 	school within the District, 	nor 	the District
itself, 	had 	a 	policy 	of 	prior 	notice 	to 	the 	principal 	regarding
placement 	of materials 	into mailboxes. 	The absence of 	a
district-wide 	rule 	is 	contrary 	to Freeman's 	contention 	that 	his
practice 	of 	prior 	notice 	is 	reasonable.
The 	District 	argues 	that 	Freeman 	required 	no 	more 	than
notice 	of 	the 	fact 	that material was 	going 	to 	be 	placed 	into
the mailboxes. 	The 	facts 	do not 	support 	the argument. 	Freeman
explained 	the 	rule 	to 	protect 	children 	from 	offensive 	materials
and 	non-union unit 	members 	from union materials. 	Neither
purpose 	could 	be 	served 	without 	review of 	the materials 	to 	be
46

placed 	in 	the 	boxes. 	In addition. 	Freeman sanctioned Dillen
twice 	for 	failing 	to meet 	his 	practice. 	The first 	letter,
dated 	October 	19. 	criticized 	Dillen 	for 	failing 	to 	show
materials 	to 	the principal. 	On October 	26 	he was 	given a
letter 	for 	placing material 	into 	the 	mailboxes 	without
Freeman's 	"prior 	approval." 	Clearly, 	Freeman wanted 	to 	see
material when he wanted 	to 	see 	it. 	and 	at 	his 	determination
would 	grant 	permission 	to 	place 	materials 	into 	the 	boxes
without 	such 	review.
The 	foregoing 	reasons 	offered 	by the 	principal, 	and 	the
inconsistency of 	application of 	those 	reasons, 	leaves 	one with
the 	feeling 	that 	there were 	no 	clear 	standards 	and 	procedures,
leaving 	the 	practice 	to 	the unfettered 	discretion 	of 	the
principal, 	a 	basis 	itself 	for 	holding 	the practice
unreasonable. 	See Richmond, 	supra.
The 	rule 	being unreasonable, 	its 	imposition 	is a violation
of 	the 	employee 	organization's 	rights under 	section 	3543.5(b),
San Ramon, 	supra.15 	Imposition of 	the 	rule may also
constitute 	interference within 	the meaning 	of 	section
15 ITA 	also urged 	that 	the 	prior 	notice 	rule was
unilaterally 	adopted 	in violation 	of 	the 	employer's 	obligation
to 	bargain 	in good 	faith. 	The District 	filed 	a motion 	to 	file
a 	supplemental 	brief 	on 	the 	issue 	contending 	that 	ITA 	had 	first
raised 	the unilateral 	adoption 	issue 	in 	its 	reply 	brief 	and
that 	such 	charge was 	barred 	by 	the 	statute 	of 	limitations 	as
the 	rule was 	announced 	by Freeman 	in January of 	1984. 	Because
of 	the disposition of the rule 	itself herein, 	however, 	it 	is
unnecessary 	to 	address 	either 	contention.
47
15
lSrTA

3543.5(a). 	Richmond, 	supra, 	applying the test of Carlsbad
Unified 	School District 	(1979) 	PERB Decision No. 	89. 	Here,
however, 	no harm to 	the Association occurred as 	a 	result 	of 	the
imposition of 	the 	rule. 	As Dillen testified, 	there was never 	a
refusal 	to allow the 	placement 	of 	material 	into 	the mailboxes.
Yet, 	as 	discussed 	below. 	Dillen was 	reprimanded 	for 	failing 	to
notify Freeman 	of 	the 	placement 	of 	materials 	into 	the
mailboxes. 	Clearly, 	reprimanding an 	employee 	organization
representative 	for 	undertaking Association 	rights 	is 	harmful
within the meaning of section 3543.5(a). 	As found above, 	there
is 	no 	operational 	necessity for 	the 	rule 	and 	thus 	there 	is
interference under 	section 3543.5(a).
3. 	Dillen's 	Letters 	and 	Suspensions with Pay
It 	has 	been 	found 	that 	the 	imposition of 	the 	prior 	approval
practice 	by Freeman was 	an unlawful 	violation 	of 	the 	employee
organization's 	right 	of 	access 	to 	the mailboxes, 	and 	in
addition, 	interference with employees' 	rights 	to participate 	in
the 	activities 	of 	employee 	organizations. 	On October 	19 	Dillen
was 	given 	a 	written warning 	admonishing 	him 	for 	stuffing 	the
mailboxes without 	first 	having 	shown 	them to Freeman. 	On
October 26, 	1984. 	Dillen was 	suspended, 	with pay. 	for failing
to notify Freeman, 	in advance, 	of placement of materials 	into
the mailboxes. 	As 	the 	imposition of 	the 	rule 	has 	been found 	to
be 	a violation, 	sanctioning an 	employee 	for 	noncompliance must
also be a violation. 	If placement of 	the materials 	into the
48

mailboxes without 	the approval 	of 	the 	principal was 	a 	right 	of
the 	employee 	organization, 	then an 	employee 	engaged 	in 	that
activity must 	also 	have 	a 	similarly protected 	right. 	Hence,
sanctioning Dillen 	for 	his 	protected 	activity 	is 	a 	violation 	of
section 3543.5(a).16
The 	District 	contends 	that 	even 	if 	the 	prior 	notice
requirement were not a 	reasonable 	rule, 	the 	letters 	should
stand 	because 	they were 	given 	because 	of 	Dillen's
insubordination. 	On both October 	19 	and October 	26. 	Dillen was
ordered 	to 	meet 	with Freeman 	and 	he 	refused 	without 	the
presence of a witness. 	Thus, 	argues the District. 	Dillen's
insubordination was 	just 	ground 	for 	the 	letters.
ITA argues 	that while 	it 	does 	not 	raise 	the Weingarten
rights 17 as 	a direct 	issue 	in the 	case, 	the District 	took
action against 	Dillen because 	he 	asked 	for 	a witness 	and 	that
under 	the 	authority 	of 	Marin Community College District, 	such
16
1 6 ITA makes 	no argument, 	nor 	requests 	any remedy, 	for 	the
November 	2, 	1984 	suspension of Dillen. 	Accordingly, 	no 	legal
conclusions 	are 	drawn from that 	incident.
1 7 The Weingarten 	rights 	refer 	to 	the 	principal 	of 	NLRB v.
J. Weingarten. 	Inc. 	(1975) 420 U.S. 	251, 	88 LRRM 2689, wherein
the 	Supreme 	Court upheld 	NLRB's 	conclusion 	that 	employees 	have
a 	right 	to 	a 	union 	representative 	at 	investigatory meetings
where 	there 	is 	a 	reasonable 	expectation 	of 	disciplinary
action. 	PERB has 	adopted 	this 	principle. 	Marin Community
College District 	(1980) 	PERB Decision No. 	145. 	See also
Redwoods 	Community College District 	(1983) 	PERB Decision
No. 293.
49
16

action is a reprisal in violation of section 3543.5(a).18
The District's 	argument 	does 	not 	have 	support 	in 	the
record. 	There 	is 	no 	showing 	that 	Freeman would 	have 	called
Dillen 	into 	his 	office 	but 	for 	the 	stuffing 	of 	the 	box
incidents. 	To prevail 	in 	its 	argument, 	the District would 	have
to 	show that 	it would 	have 	sanctioned 	Dillen despite 	the
absence 	of 	the mailbox 	incidents. 	In both cases 	(the
October 	19 	and 	26 	events) 	it was Dillen's 	failure 	to notify 	(or
seek 	approval 	from) 	Freeman before 	stuffing 	the 	boxes 	that
precipitated 	the 	call 	for 	the meeting. 	In both cases 	the
letters 	were 	issued 	because 	of 	the 	failure 	to 	give 	notice 	to
Freeman 	prior 	to 	inserting materials 	into 	the 	mailboxes 	and
because Dillen refused 	to meet with Freeman, 	without 	a witness,
to discuss 	that 	failure. 	It 	is 	simply not 	possible 	to 	separate
the two 	events. 	In addition, 	even if 	it were 	to be assumed
that 	Dillen's 	refusal 	to meet with Freeman without 	a witness
was 	not 	protected 	activity, 	thus 	giving 	rise 	to 	reprimand 	for
"mixed 	conduct," 	some 	of which 	is 	protected 	and 	some 	of which
is not. 	there 	is 	no 	showing that 	the District would 	have 	issued
the 	letters 	on 	the 	failure 	to meet 	alone 	issue. 	Such 	"mixed
conduct" 	cases must 	be resolved, 	in the absence of 	such
18 The 	District 	does 	not 	argue 	that 	Dillen's re-guest for
a 	"witness" 	was 	not 	adequate 	notice 	to 	the 	employer 	triggering
Weinqarten 	rights. 	Failure 	to 	place 	the 	employer 	on notice 	of
the 	desire 	for 	representational 	rights 	can 	constitute waiver
thereof. 	See Fremont Union High School 	District 	(1983) 	PERB
Decision No. 	301 	and NLRB 	cases 	cited 	therein.
50

showing, 	in favor 	of 	the 	charging party. 	See 	San Ysidro School
District 	(1980) 	PERB Decision No. 	134; 	Belridge School District
(1980) PERB Decision No. 	157.
4. 	The Neustadter 	Incidents
ITA contends 	the 	employer's 	conduct 	is 	unlawful
interference with Neustadter's 	exercise 	of 	her 	protected 	rights
in 	that 	Freeman 	required 	Neustadter 	to 	show him 	all 	union
materials 	and 	that 	Freeman 	physically 	intimidated 	her when he
screamed 	at 	her 	for 	distributing union materials.
In Rio Hondo Community College District 	(1980) 	PERB
Decision No. 	128, 	PERB fashioned a 	standard 	for 	employer's
expressions 	of 	views 	on employment 	related 	matters. 	Employers'
views 	that must 	be allowed 	are 	not without 	limits, 	said 	PERB,
"it 	must 	necessarily 	include 	both 	favorable 	and 	critical 	speech
regarding 	a 	union's 	position 	provided 	the 	communication 	is 	not
used 	as 	a means 	of violating 	the Act." 	(Citation omitted.)
The 	standard 	to be applied, 	said PERB, 	is 	that 	"an employer's
speech which contains 	a 	threat 	of 	reprisal 	or 	force 	or 	promise
of 	benefit will 	be 	perceived 	as 	a means 	of violating 	the Act
and will, 	therefore, 	lose 	its 	protection and 	constitute 	strong
evidence 	of 	conduct which 	is 	prohibited 	by section 	3543.5 	of
the 	EERA."
The District 	argues 	that 	on October 	2 	Freeman 	simply told
Neustadter 	that he was 	in charge of 	the school, 	which 	is 	true,
and 	that 	he 	did 	not want 	her 	telling 	him how to 	run 	the
51

school. 	Neither 	statement 	is unlawful 	argues 	the District.
The District 	finds 	that 	the 	fact 	that Neustadter 	stood 	up 	to
Freeman 	and 	told 	him 	that 	if 	they 	could 	not 	resolve 	the
problems 	that 	she would 	take 	other 	steps 	simply negates 	any
conclusion 	that 	she was 	intimidated.
Regarding the October 	19 	event, 	the District urges 	that
Freeman was 	simply 	advising Neustadter 	of 	the 	requirement 	that
she 	notify 	the 	principal 	or 	the 	administrator 	that 	she was 	on
campus 	and 	that 	it was 	not 	sufficient 	for 	her 	to 	report 	to
clerical 	personnel. 	The 	fact 	that Freeman may have 	been
yelling at 	her. 	argues 	the District, 	does 	not 	transform lawful
statements 	into unlawful 	threats. 	In addition, 	argues the
District. 	Neustadter. 	a 	"hardened 	and 	experienced" 	union
representative who was 	aware 	of 	Freeman's 	often 	raised 	voice,
could 	not 	have 	been 	deterred 	by his 	conduct.
ITA argues, 	in response 	to 	the District's 	contention that
Neustadter was 	not 	intimidated, 	that under 	the holding 	of
Clovis Unified School District 	(1984) 	PERB Decision No. 	389. 	it
was 	not 	required 	to 	prove 	that 	Neustadter was 	in 	fact
intimidated. 	In Clovis, 	the Board 	cited 	and 	relied 	on NLRB v.
Triangle Publications 	(3d Cir. 	1974) 	500 F.2d 	597. 	598. 	where
the 	court 	stated:
That no 	one was 	in fact 	coerced 	or
intimidated 	is 	of no 	relevance. 	The 	test 	of
coercion and 	intimidation 	is 	not whether 	the
misconduct 	proves 	effective. 	The 	test 	is
whether 	the misconduct 	is 	such that, 	under
the circumstances existing, 	it may
52

reasonably 	tend 	to 	coerce 	or 	intimidate
employees 	in the 	exercise 	of 	rights
protected 	under 	the Act.
In the 	present 	case, 	Neustadter 	testified 	that Freeman made
some 	"unfriendly remarks" 	about 	the union. 	The Board 	has 	ruled
that 	a negative attitude 	toward 	a union may not. 	without more,
support 	a 	conclusion of 	unlawful 	motive. 	Said 	the Board
". 	. 	. w e note that 	an employer may harbor 	adverse feelings
toward 	an employee 	organization 	so 	long 	as 	it 	refrains 	from
taking 	action 	against 	any 	employee 	because 	of 	the 	exercise 	of
rights 	guaranteed 	by 	the 	Educational 	Employment 	Relations
Act." 	Los Angeles 	Unified 	School 	District 	(1985) 	PERB Decision
No. 	514. 	I 	find no substance to Neustadter's 	testimony upon
which a 	conclusion of 	threat 	of 	reprisal 	or 	force 	or 	promise 	of
benefit 	can be 	drawn. 	Coupled with Freeman's 	statement 	of 	the
rule 	regarding 	prior 	notice 	for 	mailbox 	materials 	presents 	no
additional 	ground 	for 	finding 	a 	violation. 	Contrary 	to 	ITA's
arguments, 	there was 	no 	required 	showing of materials 	to
Freeman. 	Neustadter 	testified 	only 	that 	he 	stated 	the 	rule,
not 	that 	he 	required 	her 	to 	show materials. 	Nor was 	there any
testimony on her 	part about what 	consequences, 	if 	any. 	there
would 	be 	if 	she 	failed 	to 	show him materials. 	Hence 	there was
no 	threat 	of 	reprisal.
Freeman did 	not 	threaten Neustadter 	for 	having met 	with 	the
teachers 	nor 	did 	he 	tell 	her 	he 	did 	not want 	her 	to 	meet with
employees. 	Freeman may have made 	some unfriendly 	remarks 	about
53

ITA. 	and 	he 	spoke with a 	loud 	and 	authoritative voice 	to
Neustadter. 	This 	is 	not 	to 	condone what may have 	been an
uncomfortable 	situation 	for 	Neustadter. 	By Neustadter's 	own
testimony, 	he told her. 	albeit 	in a 	loud voice, 	that he did not
want 	her 	telling him how to 	run the school; 	however, 	he did 	not
suggest 	any 	form of 	reprisal 	for 	her 	exercise 	of 	rights 	as
president of 	the 	ITA. 	Also by her 	own testimony, 	the
intimidation was 	from the 	proximity 	and 	the 	volume 	of 	Freeman's
voice and not 	a 	threat 	of 	reprisal. 	In fact, 	she 	stood up to
him and 	told 	him that 	if 	they 	could 	not work 	things 	out. 	she
would 	seek 	recourse 	elsewhere. 	She 	did 	go 	to 	the District
superintendent 	to 	complain about 	Freeman's 	conduct.
With regard 	to 	the October 	19 	incident, 	again Neustadter's
own 	testimony 	reveals 	that 	Freeman's 	admonition 	to 	her 	related
to 	her 	failure 	to 	notify 	him or 	the 	other 	administrator 	of 	her
intended 	visit 	onto 	the 	campus. 	While Neustadter 	had 	told 	the
secretary 	and 	from 	her 	unrefuted 	testimony 	she 	was 	simply
directed 	to 	Dillen's 	classroom 	for 	the 	delivery 	of 	the
materials 	to 	him, 	which mitigates 	against Neustadter's 	action
of 	going 	to 	the 	classroom. 	It 	does 	not 	seem unlawful 	for
Freeman to 	call 	her 	in and 	recite 	the 	rule as 	it was
enforced.19
What 	is 	left 	is 	the 	confrontation 	between Neustadter 	and
Freeman where 	the 	latter, 	substantially 	taller 	than 	the 	other.
1 9 ITA makes 	no 	argument 	concerning 	the 	rule 	itself
54

spoke 	in a 	loud 	if 	not 	screaming manner 	at 	the October 	19
meeting 	regarding 	her 	visiting 	the 	campus 	without 	seeing 	him
first 	and 	his 	role 	as 	the 	chief 	of 	the 	school.
Nothing 	in Neustadter's 	testimony 	describing 	the
October 	19, 	1984. 	event suggests a 	threat of force or 	reprisal
for her 	organizational 	activities. 	Again, 	not 	to 	condone
Freeman's 	character 	of 	screaming at 	employees, 	the volume of
his voice 	cannot 	produce unlawful 	conduct. 	Neustadter 	has 	been
an active member 	of 	ITA for 	eight years, 	including 	two 	terms 	as
president, 	and 	a member 	of 	the 	negotiating 	team as well 	as 	its
chairperson. 	She 	is 	a member 	of 	several 	CTA and NEA committees
and 	has 	attended 	numerous 	training 	conferences 	on
negotiations. 	As of October 	19. 	1984. 	she had had one prior
confrontation with 	Freeman 	and 	was 	aware 	of 	his 	authoritative
and 	loud 	style. 	She was 	an 	experienced 	negotiator 	and 	had
training 	in negotiation sessions. 	Freeman was 	loud, 	if not
screaming, 	in telling Neustadter 	of 	the 	rule regarding prior
notice before visiting the 	campus. 	The 	ITA does 	not 	contest
the 	rule. 	Neustadter, 	an experienced 	negotiator and 	two-term
president was 	aware 	of Freeman's 	loud 	and 	authoritative 	style.
She had met with him before. 	Under 	these 	circumstances, 	I 	do
not 	find 	Freeman's 	conduct 	tending 	to 	coerce 	or 	intimidate
employees 	generally, 	on Neustadter 	in particular, 	in the
exercise 	of 	rights 	protected 	by the EERA. 	Accordingly, 	the
charge, 	insofar as 	it relates 	to Neustadter, 	must 	be dismissed.
55

SUMMARY
In sum. 	it 	has 	been 	found 	that 	the District violated 	its
obligation 	to 	bargain 	in good 	faith 	in violation 	of 	section
3543.5(c) with concurrent violations 	of 	3543.5(a) 	and 	(b) 	by
unilaterally 	failing 	to 	implement 	the 	agreed-upon 	bell 	schedule
for 	the 	fall 	of 	1984. 	Further 	it 	has 	been found 	that 	the
District 	denied 	the 	employee 	organization's 	right 	to 	access 	to
teachers' 	mailboxes 	by Freeman's 	imposition of 	the 	prior
approval 	requirement 	in violation of 	section 3543.5(b). 	This
is 	also a violation of 	section 3543.5(a) 	by 	interference 	in
employees' 	right 	to 	participate 	in 	employee 	organization
activities. 	Finally, 	it 	has 	been found 	that 	the District
violated 	section 	3543.5(a) 	by 	imposing 	reprisals 	upon Dillen
for 	his 	exercise 	of 	protected 	activity, 	to wit, 	placing the 	ITA
materials 	into 	the mailboxes without 	prior 	approval 	from
Freeman.
REMEDY
Under 	section 	3541.5(c) 	PERB has 	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.
It 	has 	been 	found 	that 	the District violated 	subsections
3543.5(a). 	(b) 	and 	(c) 	by unilaterally failing to 	implement the
agreed upon bell 	schedule 	in the 	fall 	of 	1984. 	It 	has 	been
56

found 	that 	the 	District 	violated 	subsections 	3543.5(a) 	and 	(b)
by 	imposing 	a 	prior 	approval 	for 	mailbox 	insertion 	at 	the
Inglewood High School. 	It 	has 	been 	further 	found 	that 	the
District 	violated 	subsection 	3543.5(a) 	when 	it 	issued memoranda
to 	and 	imposed 	a 	suspension with pay on Robert Dillen. 	on
October 	26. 	1985. 	It 	is 	appropriate that 	the District be
ordered 	to 	cease 	and 	desist 	from 	such 	conduct.
Where an employer has made an unlawful 	unilateral 	change, 	a
remedy requiring 	the 	restoration of 	the 	status 	quo 	is
appropriate 	to 	effectuate 	the 	policies 	of 	EERA because 	it
restores, 	to 	the extent possible, 	the positions 	the parties
occupied 	prior 	to 	the unilateral 	change. 	Rio Hondo 	Community
College District 	(1983) 	PERB Decision No. 	292. 	Corning Union
High School District 	(1984) 	PERB Decision No. 	399, 	fn. 	4.
p. 	10. 	A return to 	the 	status quo will 	not 	be ordered,
however, 	where after 	the unilateral 	action, 	the parties have
reached 	agreement 	on 	the 	issue. 	See Delano 	Union Elementary
School District 	(1982) 	PERB Decision No. 	213a. 	Here, 	the
evidence 	shows 	that 	agreement 	on 	the 	reopener 	provisions,
including hours 	and 	calendars, 	were 	reached 	in February of
1985. 	Hence a 	return to the 	status 	quo ante will 	not 	be
ordered. 	It is appropriate, 	however, 	to make the employees
whole 	for 	the unilateral 	reduction 	of 	their 	duty-free 	time.
San Mateo City School District 	(1984) 	PERB Decision No. 	375a.
Under 	the authority of Corning, 	supra, 	the appropriate 	remedy
57

may 	either 	be 	to 	give 	the 	employees 	so 	affected 	corresponding
time 	off 	or 	simply monetary 	compensation 	for 	the 	extra 	time
worked. 	Here 	the District 	eliminated 	seven minutes 	of
duty-free 	time 	per 	day. 	This 	change was 	effective 	from 	the
opening day of 	school 	in September 	of 	1984 	until 	the terms 	of
the 	new agreement was 	reached 	in February of 	1985. 	The
District will 	be 	ordered 	to 	offer 	employees whose 	duty-free
time was 	reduced 	by 	seven minutes 	per 	day a 	corresponding
amount 	of 	time 	off 	and 	if 	the 	parties 	cannot 	reach 	agreement 	as
to 	the manner 	in which such 	time 	off will 	be granted 	or 	if 	an
individual 	is 	no 	longer 	in the District's 	employ, 	then such
employees 	will 	be 	granted 	monetary 	compensation 	for 	the
additional 	time worked. 	Interest 	at 	10 	percent will 	also 	be
ordered. 	Antioch Unified 	School 	District 	(1985) 	PERB Decision
No. 	515. 	(Department of Transportation 	(1984) 	PERB Decision
No. 	459-S.)
It 	is 	further 	appropriate 	to 	order 	the District 	to 	remove
and 	destroy 	the October 	19 	and 	26 	memoranda 	from
Robert 	Dillen's 	personnel 	file. 	Marin Community College
District 	(1980) 	PERB Decision No. 	145.
The 	ITA seeks 	attorneys' 	fees 	and 	cost 	of 	litigation for
the unfair 	practice 	charge. 	Relying 	on Fresno Unified 	School
District 	(1982) 	PERB Decision No. 	208. 	ITA argues 	that 	the
District's 	unilateral 	action 	leading 	to 	the 	first 	unfair
practice 	(LA-CE-1841) 	and 	its 	subsequent 	failure 	to 	implement
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the 	settlement 	agreement 	constitutes 	"repeated 	and 	flagrant
violations" 	of 	the Act. 	The PERB has 	held 	that 	attorneys 	fees
should 	be 	awarded 	upon a 	showing 	that 	the 	defense 	to 	an unfair
practice charge 	is 	"without arguable merit." 	Cumero v. 	King
City High School District Association. 	CTA/NEA, 	et al. 	(1982)
PERB Decision No. 	197. 	167 Cal.App.3d 131 	(1985). 	or if there
was 	a 	showing 	of 	"frivolous 	or 	dilatory 	litigation" 	but 	should
be denied 	". 	. 	. i f 	the 	issues 	are debatable and 	brought 	in
good 	faith." 	Unit 	Determination 	for 	the 	State 	of 	California
(1980) 	PERB Decision No. 	ll0c-S. 	Here 	the District 	did 	not
implement 	a 	revised 	bell 	schedule 	pursuant 	to 	an agreement 	in
settlement 	of 	an 	earlier 	unfair 	practice 	charge. 	The 	refusal
to 	implement 	the 	bell 	schedule was 	predicated 	upon 	the
District's 	supposition 	of 	settlement 	of 	reopener 	negotiations
which 	included 	longer year 	and workday 	issues. 	While 	the
supposition did 	not 	alleviate 	against 	a 	finding 	of 	unilateral
action 	in violation of 	the EERA, 	it 	does mitigate against 	the
absence 	of 	arguable merit. 	The parties were 	in negotiations 	in
the 	summer 	and 	fall 	of 	1984 	and 	there 	is 	no 	evidence 	to 	show
that 	the District's 	belief 	of 	imminent 	settlement was without
foundation. 	The District's 	conduct 	does 	not 	constitute
frivolous 	or 	dilatory 	tactics 	and 	presented 	debatable 	issues
and was 	ostensibly brought 	in good 	faith. 	Accordingly, 	the
request 	for 	attorneys 	fees 	is 	denied.
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Finally, 	it 	is 	appropriate 	that 	the District 	should 	be
required 	to 	post 	a 	notice 	incorporating 	the 	terms 	of 	this 	Order
attached 	as 	an appendix 	hereto. 	The 	notice 	should 	be
subscribed 	by 	an 	authorized 	agent 	of 	the 	Inglewood 	Unified
School 	District 	indicating 	that 	they will 	comply with 	the 	terms
of 	this Order. 	The notice 	shall 	not 	be reduced 	in size.
Posting 	of 	such notice will 	provide 	employees with an
additional 	statement 	that 	the District 	has 	acted 	in an unlawful
manner 	and 	is 	being 	required 	to 	cease 	and 	desist 	from 	such
activity and 	take 	such 	other 	remedial 	steps. 	It 	effectuates
the 	purposes 	of 	the 	EERA that 	employees 	be 	informed 	of 	the
resolution 	of 	this 	controversy 	and 	the 	mailing 	and 	posting 	of
such 	notice will 	announce 	the District's 	readiness 	to 	comply
with 	the 	ordered 	remedy. 	(Placerville 	Union High 	School
District 	(9/18/78) 	PERB Decision No. 	69; 	Pandol 	& Sons v. 	ALRB
& UFW (1979) 	98 Cal.App.3d 	580, 	587; 	NLRB v. 	Express Publishing
Co. 	(1941) 	312 U.S. 	[8 LRRM 415].)
PROPOSED 	ORDER
Upon 	the 	foregoing 	Findings 	of 	Fact 	and 	Conclusions 	of 	Law
and 	the 	entire 	record 	in the matter, 	and 	pursuant 	to 	section
3541.5(c) 	of 	the Educational Employment Relations Act, 	it 	is
hereby ordered 	that 	the 	Inglewood 	Unified 	School 	District, 	its
Board 	of 	Trustees, 	Superintendent 	and 	its 	agents 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	altering 	the 	high 	school 	teachers'
duty-free 	time without 	providing 	notice 	and 	a 	reasonable
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opportunity 	to 	negotiate 	to 	the 	Inglewood 	Teachers 	Association.
CTA/NEA.
2. 	Denying 	to 	the 	Inglewood 	Teachers Association,
CTA/NEA 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations Act, 	including 	the 	right 	to 	represent 	its members 	by
requiring 	prior 	approval 	for 	use 	of 	Inglewood 	High 	School
teachers' mailboxes.
3. 	Retaliating 	against 	or 	interfering with 	employees
in 	the 	exercise 	of 	rights 	guaranteed 	by 	the Educational
Employment Relations Act, 	including 	the 	right 	to be 	represented
by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Grant 	to 	each of 	the 	employees 	harmed 	by 	the
refusal 	to 	implement 	the 	agreed-upon 	bell 	schedule 	the 	amount
of 	paid 	time 	off which 	corresponds 	to 	the 	amount 	of 	time worked
as 	a 	result 	of 	the 	reduction 	of 	the 	duty-free 	period. 	Should
the 	parties 	fail 	to 	reach a 	satisfactory 	accord 	as 	to 	the
manner 	in which 	such time 	off will 	be 	granted 	or 	if 	an
individual 	is no 	longer 	in the District's 	employ, 	then such
employees 	will 	be 	granted 	monetary 	compensation 	commensurate
with 	the 	additional 	time worked. 	Any monetary 	payment 	shall
include 	interest 	at 	the 	rate 	of 	ten 	(10) 	percent 	per 	annum.
2. 	Remove and destroy the October 	19 	and 	26, 	1984,
Freeman memoranda 	from Robert 	Dillen's 	personnel 	file.
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3. 	Within ten 	(10) 	workdays 	of 	service 	of a 	final
decision 	in this matter, 	post 	at 	all 	school 	sites 	and 	all 	other
work 	locations where 	notices 	to 	certificated 	employees 	are
customarily placed, 	copies 	of 	the 	notice 	attached 	hereto 	as 	an
appendix. 	The 	notice must 	be 	signed 	by an 	authorized 	agent 	of
the 	District 	indicating 	that 	the 	District 	will 	comply with 	the
terms 	of 	this 	order. 	Such posting 	shall 	be maintained 	for 	a
period 	of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken to 	insure 	that 	this 	notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or 	covered by any material.
4. 	Upon 	issuance of 	a 	final 	decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	the 	order 	to
the 	Los 	Angeles 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in accordance with 	his 	instructions.
IT 	IS FURTHER ORDERED all 	other 	portions 	of 	the unfair
practice 	charge 	and 	complaint 	are 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8.
part 	III. 	section 32305, 	this Proposed Decision and Order 	shall
become final 	on November 	26. 	1985. 	unless a party files 	a
timely statement 	of 	exceptions. 	In accordance with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify 	by page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8.
part 	III. 	section 32300. 	Such statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
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Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 p.m.) 	on
November 	26, 	1985. 	or 	sent 	by telegraph or 	certified United
States mail, 	postmarked not 	later 	than 	the 	last 	day 	for 	filing
in order 	to 	be 	timely 	filed. 	See California Administrative
Code, 	title 8. 	part 	III. 	section 32135. 	Any statement of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing upon 	each party 	to 	this 	proceeding. 	Proof 	of
service 	shall 	be 	filed with 	the 	Board 	itself. 	See 	California
Administrative Code, 	title 8. 	part 	III. 	section 32300 and 32305.
Dated: 	November 	6, 	1985
Admin 	Administrative Law Judge
Gary M. Gallery
Law Judge
SY
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