Los Angeles Unified School District (PERB 0611E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTOR 	JOHANN WIGHTMAN,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case Nos. LA-CE-1736,
LA-CE-1765, 	LA-CE-1767
LA-CE-1769, LA-CE-1771,
LA-CE-1773, LA-CE-1774,
LA-CE-1781
PERB Decision No. 	611
January 28, 	1987
Appearances; 	Victor Wightman 	and 	Jules 	Kimmett 	for 	Victor
Wightman; 	O'Melveny & Myers by Brenda 	K. 	Haines 	for Los 	Angeles
Unified 	School 	District.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case 	is an appeal 	of the attached
proposed decision of an 	administrative 	law 	judge 	(ALJ), 	holding
that 	the 	respondent, 	Los 	Angeles 	Unified 	School 	District
(District or LAUSD), 	threatened the charging party, 	Victor
Wightman 	(Wightman), 	with dismissal 	for his 	exercise of 	rights
protected under 	the 	Educational 	Employment 	Relations 	Act 	(EERA).1
1 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Section 	3543.5 provides, 	in pertinent part, 	as 	follows :
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose 	or threaten 	to 	impose 	reprisals
on 	employees, 	to discriminate 	or 	threaten 	to
discriminate 	against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
)
)
)
)
)
)
)
)
)
)
______________ )

LAUSD excepts 	to 	the 	finding 	that 	the 	conduct 	of 	Supervisor
Max 	Barney 	constituted 	a 	threat 	of 	dismissal 	or 	other 	adverse
action. 	Wightman 	excepts 	to 	the 	remedy proposed by the ALJ, 	a
cease-and-desist 	order, 	and 	argues 	that he 	should be 	reinstated
to his 	former position 	with 	the 	District. 	For 	the 	reasons 	set
forth below, 	we 	sustain 	the 	District's 	exceptions, 	but 	find
that 	Barney's 	actions 	did 	constitute 	interference 	with
Wightman's 	protected 	rights 	under 	EERA section 	3543.5(a).
Accordingly, 	we order 	the 	District 	to cease 	such 	interference.
DISCUSSION
Neither 	party 	filed 	exceptions 	to 	the 	findings 	of 	fact 	made
by 	the 	ALJ.2 Finding 	them 	free 	from prejudicial 	error, 	we
adopt 	the 	findings 	as 	set 	forth 	in 	the 	attached proposed
decision.
Although Wightman has 	attempted 	to 	litigate 	a 	number 	of
issues he 	claims 	are 	related 	to 	the 	events 	of 	December 	1982,
the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
previously 	ruled 	upon 	all 	of 	those 	issues 	by virtue 	of 	their
inclusion 	in 	earlier 	charges 	filed by Wightman 	in 	response 	to
the 	activities 	of LAUSD on 	and after 	December 	3, 	1982.3
2Although 	LAUSD 	excepted 	to 	the 	ALJ's 	characterization 	of
Barney's 	question 	to Wightman 	(about how 	the 	latter 	got 	to 	the
meeting) 	as 	a 	"threat," 	it 	is 	clear 	that 	the District does 	not
deny 	that 	the 	question was 	asked. 	Thus, 	although 	the 	District
referenced page 	27 	of 	the 	proposed 	decision 	in 	its 	statement 	of
exception, 	its 	objection 	is 	actually to 	the ALJ's
characterization 	on pages 	51-52 	of 	the 	Proposed 	Decision.
3see 	Los 	Angeles 	Unified 	School 	District 	(1984) 	PERB
Decision Nos. 	412, 	425, 	426 and 473.
22

Thus, 	the 	sole, 	unresolved 	issue before 	the ALJ was 	the 	nature
of 	Barney's 	conduct 	at his 	meeting with Wightman 	on 	December
3. 	The 	ALJ 	ruled 	that 	Barney 	threatened 	Wightman 	while
Wightman 	was 	engaging 	in 	the 	protected 	activity 	of 	pursuing his
grievances 	and 	those of 	other bus 	drivers.
The ALJ 	further 	ruled, 	however, 	that Wightman was 	not
entitled 	to 	reinstatement 	because 	the 	Board had 	already
dismissed 	an 	allegation 	that Wightman 	was 	fired 	in 	retaliation
for his 	protected 	activity.4 Thus 	the 	ALJ 	ruled 	that, 	viewed
alone, 	the 	threat 	could be 	remedied 	only by a 	cease-and-desist
order.
Wightman 	vigorously argues 	that 	if 	a 	threat 	of 	firing was
made, 	it 	is 	anomalous 	not 	to remedy the 	result of 	that 	threat,
his 	firing. 	A cease-and-desist order 	is useless, 	he argues, 	if
the 	employee 	threatened 	is 	no 	longer 	an 	employee 	of 	the
District 	because 	the 	District has 	fired him.
The 	District's 	argument 	is 	that a 	threat was 	never made,
that 	Barney's 	comments 	were 	reasonable 	under 	the 	circumstances,
and 	that 	the ALJ 	should be 	overruled on 	this 	issue.
Whether 	Barney's 	conduct 	constituted 	a 	threat 	cannot 	be
examined 	in 	a 	vacuum. 	His 	words 	and actions 	are 	the product 	of
the 	events 	and personalities 	leading up 	to 	the 	December 	3
4 PERB 	Decision 	No. 	473, 	supra. 	While 	the ALJ stated 	that
Wightman had 	failed 	to appeal 	that 	decision, 	we 	would note 	that
EERA section 	3542(b) 	specifically precludes 	the 	appeal 	of a
Board decision 	not 	to 	issue a 	complaint.
33

meeting, 	as 	well 	as 	what happened 	in 	the meeting on 	that day.
The 	record 	reveals 	several 	significant 	aspects 	of 	the 	entire
scenario.
First, 	Barney 	reasonably believed 	that Wightman was 	not 	a
steward 	for 	Local 	99. 	Although Wightman 	represented himself 	as
such, 	Barney and 	the 	District had been 	informed by 	the 	union
that Wightman 	was 	no longer 	a 	steward. 5 	Thus, 	Barney
believed, 	correctly, 	that he had 	no duty 	to meet with Wightman
to 	discuss 	the 	grievances 	of 	any employee 	other 	than Wightman
himself.6
At 	the 	same 	time, 	Barney was 	not 	contractually obligated 	to
meet 	with Wightman because 	the 	grievance 	procedure 	in 	the
contract 	provided 	for 	a 	meeting 	with 	the 	grievant's 	immediate
supervisors 	prior 	to 	any meeting with 	Barney. 	Further, 	the
contract 	required 	the 	filing of 	the 	written 	grievance 	within 	15
days 	of 	discovery of 	the 	incident, 	even 	though 	the 	employee 	was
attempting 	to 	resolve 	the 	issue 	informally. 	No 	evidence 	was
presented 	to 	show 	that 	Wightman had 	completed 	either 	of 	those
steps 	of 	the grievance procedure. 	Indeed, 	the 	record 	reflects
that 	Wightman 	usually bypassed 	the 	contractual 	steps 	in 	favor
5The 	ALJ 	took 	official 	notice 	of 	a 	final 	ALJ decision,
PERB Decision No. 	HO-U-164, 	dated January 27, 	1983, 	which
concluded 	that, 	at 	the 	time 	in question here, 	Wightman was 	not
a 	steward 	for 	SEIU, 	and 	SEIU had 	so 	notified 	the 	District.
Wightman 	had 	not 	appealed 	that 	decision.
6EERA 	section 	3543 	permits 	an 	individual 	employee 	to 	seek
redress 	on his 	own behalf 	prior 	to a 	dispute 	reaching
arbitration.
5
44

of 	a 	direct 	meeting with higher-ranking 	District 	personnel.
Barney 	saw himself 	as 	under 	no personal 	obligation 	to meet 	with
Wightman, 	nor 	did he 	perceive 	Wightman 	to be 	anything other
than 	an 	individual 	employee, 	not a 	representative 	of 	the
exclusive 	representative. 	Barney's 	conduct 	was 	not 	so much
that 	of a 	supervisor 	who 	threatened Wightman 	as 	it was 	the
conduct 	of 	a 	supervisor 	who 	chose 	— 	to 	his 	probable 	regret 	—
to meet 	with 	a 	vociferous 	employee 	in 	order 	to 	try and 	resolve
some 	of Wightman's 	complaints.
Given 	this 	background, 	it becomes 	easy to understand why
Barney's 	comments 	to Wightman 	just 	"popped 	out." 	Wightman
arrived 	at 	the 	meeting 	seeking 	to present 	not 	only his 	own
"grievances," 	but 	also 	those of other 	unit 	employees 	and 	even
the 	grievance 	of a 	non-employee. 	Wightman's 	conduct at 	the
-
meeting was 	forceful, 	and even 	intractable. 	We 	do not wonder
that 	Barney, 	in 	frustration, 	sought 	to end 	the meeting any way
he 	could. 	To 	that 	end, 	he 	focused on Wightman's 	use of his
bus, 	effectively ending 	the meeting. 	Given 	the 	conduct 	of 	all
the 	parties, 	we do not 	interpret Barney's 	comment 	to Wightman
as 	intending a 	threat of 	reprisal. 	It was 	instead 	the 	reaction
of 	a 	frustrated man 	trying 	to 	end 	an 	unpleasant meeting.7
7We 	disagree 	with 	our 	dissenting 	colleague's
characterization 	of 	the 	testimony of 	District 	officials.
Although 	one 	official 	stated 	that, 	had Wightman 	not 	shown 	up at
the 	December 	3 	meeting, 	disciplinary proceedings 	would 	not have
been 	initiated, 	we 	interpret 	that 	to mean 	not 	that 	the 	meeting
in 	and of 	itself was 	the 	cause 	for 	the 	discipline, 	but 	rather,
that Wightman's 	insubordination 	in 	using his 	school 	bus 	to drive
to 	the meeting was 	the precipitating, 	but 	not 	sole, 	reason James
55

We do believe, 	however, 	that Barney's 	actions 	and comments,
by 	"de-railing" 	the 	"grievance" 	meeting, 	did 	interfere with
Wightman's 	right 	to pursue his 	grievances. 	Under 	the 	test
articulated 	in 	Carlsbad 	Unified 	School 	District 	(1979) 	PERB
Decision 	No. 	89, 	Barney need not be 	shown 	to have had an
unlawful 	intent 	to 	interfere 	with Wightman's 	rights. 	As 	noted
above, 	we 	found 	no 	such 	intent 	to discriminate 	or 	threaten.
Rather, 	to make 	a prima 	facie 	showing of 	interference, 	charging
party 	need 	only 	show 	that 	the 	employer's 	conduct 	tends 	to 	or
does 	result 	in 	interference with 	an employee's 	rights. 	Here,
the 	facts 	indicate 	that 	Barney's 	comments 	and 	actions 	did
interfere 	with Wightman's 	right 	to pursue his 	"grievance."
Indeed, 	the 	meeting essentially came 	to a halt 	after 	the
question 	was 	raised 	about Wightman's 	transportation. 	Thus,
LAUSD, 	through Barney, 	did 	violate 	EERA section 	3543.5(a) 	by
interfering with Wightman's 	rights. 	The 	District's
justification 	for 	Barney's 	actions 	is 	not 	sufficient 	to
counterbalance 	the harm 	to Wightman's 	rights.
Srott 	recommended 	dismissal. 	The 	evidence 	revealed 	a
continuing pattern 	by Wightman 	of 	disregarding 	rules 	and
directives 	concerning his 	use of 	the bus. 	In 	applying
progressive 	discipline 	for 	this 	misuse, 	the 	District 	previously
suspended Wightman, 	and a 	verbal 	reprimand had been 	given 	in
the 	months 	prior 	to 	December 	3.
On 	December 	7, 	in 	fact, 	he again 	used his bus 	without
authorization 	to attend a 	Soto 	Street meeting. 	Indeed, 	the
hearing 	officer 	decision 	adopted 	by 	the 	personnel 	commission
that 	resulted 	in his 	dismissal 	reveals 	that Wightman 	testified
he 	would 	continue 	to use his bus 	whenever he_ deemed 	it
-	appropriate. 	It was 	primarily 	this 	cavalier 	and 	recalcitrant
attitude 	toward 	supervisory directives 	upon 	which 	the hearing
officer 	relied 	in 	determining 	that 	dismissal 	was 	appropriate.
66

Accordingly, 	we 	impose 	the 	appropriate 	remedy 	for 	the
interference 	violation 	of 	December 	3, 	a 	cease-and-desist
order. 	(See, 	e.g., 	Palm Springs 	Unified 	School 	District 	(1982)
PERB 	Decision 	No. 	249.) 	We 	thus 	reject Wightman's 	demand 	for
reinstatement.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	it 	is 	found 	that 	the 	Los
Angeles 	Unified 	School 	District 	violated 	EERA 	section
3543.5(a). 	Pursuant 	to section 	3541.5(c) 	of the Government
Code, 	it 	is hereby ORDERED that the District, 	its governing
board 	and 	its 	representatives, 	shall:
A. 	CEASE AND DESIST 	FROM:
Interfering with 	the protected 	rights 	of 	employees 	to
pursue 	grievances 	and 	seek 	to 	improve 	their 	working 	conditions.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
(1) 	Within 	thirty-five 	(35) 	days 	of 	the date 	this
Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post at 	all
school 	sites 	and 	all 	other 	work 	locations 	where 	notices 	to
employees 	are 	customarily placed, 	copies 	of 	the 	Notice 	attached
hereto 	as 	an Appendix. 	The 	notice 	must be 	signed by an
authorized 	agent 	of 	the 	employer 	indicating 	that 	the 	employer
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
77

Notice 	is 	not 	reduced 	in 	size, 	altered, 	defaced or covered by
any other 	material.
(2) 	Provide 	written 	notification 	of 	the 	actions 	taken
to 	comply with 	this 	Order 	to 	the 	Los 	Angeles 	Regional 	Director
of 	the 	Public 	Employment 	Relations 	Board, 	in accordance 	with
his 	instructions. 	All 	reports 	to 	the 	Regional 	Director 	shall
be 	served 	concurrently on 	the 	charging party herein.
It 	is 	further 	ORDERED 	that 	all 	other 	portions 	of 	the 	unfair
practice 	charge 	and 	complaint 	are 	DISMISSED.
Member 	Porter 	joined 	in 	this 	Decision.
Member 	Craib's 	concurrence 	and 	dissent begin 	on 	page 	9.
8

CRAIB, 	Member, 	concurring and dissenting: 	I 	agree with the
majority 	that 	Barney's 	conduct 	interfered with Wightman's 	right
to 	pursue 	grievances 	and 	that 	a 	cease 	and desist 	order 	is 	the
appropriate 	remedy. 	However, 	I 	cannot 	agree 	that 	Barney's
comments 	at 	the December 	3 	meeting, 	when viewed 	in 	light of 	all
the 	surrounding 	circumstances, 	did not 	constitute 	a 	threat 	of
disciplinary 	action 	in 	retaliation 	for 	protected 	activity.
The ALJ made numerous 	factual 	findings, 	all 	supported by
the 	record, 	that 	are 	sufficient 	to 	establish the 	intent 	on 	the
part of 	the District to threaten Wightman. 	For example, 	the
ALJ 	found 	the 	District 	did 	not 	have 	a 	policy on 	the use 	of
buses 	by which Wightman 	could 	have 	been disciplined 	or, 	if
there was 	such 	a policy, 	it was discriminatorily enforced. 	The
taking 	of Wightman's 	bus, 	leaving Wightman without 	a vehicle
for his 	afternoon 	route, 	the extraordinary bus 	inspection, 	and
the 	testimony of 	a 	District 	official 	that 	but 	for 	the events 	of
the 	December 	3 	meeting 	disciplinary proceedings 	against
Wightman would 	not 	have 	been 	initiated 	lend 	additional 	support
for 	finding 	a 	threat of disciplinary action. 	Further, 	the
District's 	explanation of 	the chain of 	events 	is 	less 	than
credible.
Nevertheless, 	I 	must 	agree with 	the ALJ that 	reinstatement
and back pay, 	which would 	remedy not 	the 	threat 	per 	se, 	but 	the
carrying out of the threat 	(i.e., 	Wightman's 	termination), 	are
simply not 	available 	in 	this 	case. 	While 	it may be 	anomalous
to 	adjudicate 	a 	dispute 	over 	an 	alleged 	threat 	but 	not
consider 	the 	alleged carrying 	out 	of 	the 	threat, 	we 	are 	forced
9

to 	do 	so 	by the peculiar 	history of Wightman's 	charges. 	As
noted 	in 	the majority decision, 	the 	Board 	has 	already dismissed
the 	allegation 	that Wightman was 	fired 	for 	engaging 	in
protected 	activity. l Regardless 	of 	the merits 	of 	that
decision, 	it 	is 	a 	final one to which the parties 	are bound.
There 	is 	no 	statutory, 	regulatory, 	or other 	authority which
would 	allow 	the Board 	to 	reconsider 	that 	decision 	at 	this
time.
2
Nor would 	it 	be 	proper 	to 	give Wightman the 	relief 	he
sought 	by way of 	his 	dismissed 	allegations 	of 	unlawful 	firing
l1Los	OS 	Angeles 	Unified 	School 	District 	(1984) 	PERB Decision
No. 	473. 	The Board 	found 	that 	the only allegation which 	stated
a 	prima 	facie violation was 	the threat 	allegation that 	is 	now
before us. 	Thus, 	a 	complaint 	issued 	solely on that 	allegation.
2 It 	should 	be 	noted 	that 	it 	is 	only 	through 	hindsight
that 	the propriety of Decision No. 	473 	is 	called 	into
question. 	The dismissal 	of Wightman's 	allegations 	of
retaliatory 	firing was 	based 	in 	large 	part 	upon Wightman's
failure 	to 	allege 	facts which have 	only come 	to 	the 	Board's
attention 	by way 	of 	the 	present 	appeal 	from the ALJ's 	proposed
decision. 	The 	later 	emergence 	of 	such 	facts 	(chiefly
concerning 	protected 	activity 	and 	the 	circumstances 	surrounding
disciplinary action taken 	against Wightman), 	of which Wightman
was 	surely 	aware 	of 	at 	the time he 	filed the charges 	in
question, 	does 	not excuse his 	failure to 	allege them.
I 	would 	also 	note 	Chairperson Hesse's 	concurrence 	and
dissent 	in Decision No. 	473, 	in which she 	argued that 	the
charges 	should 	be 	dismissed 	because Wightman 	had 	earlier 	filed
charges 	(Nos. 	LA-CE-1715, 	1716, 	1717 and 1718) 	based on the
same 	events 	which underlie 	the 	present 	case. 	These 	charges
were 	dismissed 	by 	a 	PERB 	regional 	attorney 	and 	the 	dismissal
was 	not 	appealed 	to 	the Board. 	The dismissal 	thus 	became
final. 	Based on a 	review of 	official PERB 	records, 	I 	find
merit 	in Chairperson Hesse's 	argument. 	Nevertheless, 	as 	stated
above, 	Decision No. 	473 	is 	final 	and binding 	and may not 	be
disturbed.
10

under 	the 	guise 	of 	remedying 	a 	threat 	of 	disciplinary 	action.
Such a 	sleight of 	hand 	approach, 	which Wightman urges, 	would
simply 	ignore 	the binding 	nature of 	Decision No. 	473.
Therefore, 	a cease and desist order, 	however pointless 	it may
seem in view of Wightman's 	later 	firing, 	is 	the only available
remedy 	for 	the District's 	unlawful 	threat.
For 	the 	reasons 	stated 	above, 	I would 	affirm the proposed
decision.
11

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 Nos. 	LA-CE-1736;
LA-CE-1765; LA-CE-1767; LA-CE-1769; LA-CE-1771; LA-CE-1773;
LA-CE-1774; 	and LA-CE-1781, 	Victor Wightman v. 	Los Angeles
Unified 	School 	District, 	in which 	all 	parties had 	the 	right 	to
participate, 	it has 	been 	found 	that 	the 	District 	violated 	the
Educational 	Employment Relations Act, 	section 	3543.5(a). 	The
District 	violated 	this 	provision 	of 	the 	law by 	interfering
with 	unit 	member 	Victor Wightman's 	exercise 	of his 	protected
right 	to pursue 	complaints 	against his 	employer 	designed 	to
better 	working 	conditions.
As 	a 	result 	of 	this 	conduct, 	we have been 	ordered 	to post
this 	Notice 	and we will:
CEASE AND 	DESIST 	FROM:
Interfering 	with 	the 	protected 	rights 	of 	employees 	to
pursue 	grievances 	and 	seek 	to 	improve 	their 	working 	conditions,
Dated: 	LOS 	ANGELES 	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 REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR
COVERED 	BY ANY MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTOR 	WIGHTMAN,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL 	D I S T R I C T ,
Respondent.
Unfair 	Practice
Case 	N o s . 	L A - C E - 1 7 3 6 ;
LA-CE-1765;
L A - C E - 1 7 6 7 ;
L A - C E - 1 7 6 9 ;
L A - C E - 1 7 7 1 ;
L A - C E - 1 7 7 3 ;
L A - C E - 1 7 7 4 ;
L A - C E - 1 7 8 1 .
PROPOSED 	DECISION
[Pursuant 	to 	PERB
Decision 	N o . 	473]
(7/26/85)
Appearances; 	Victor Wightman and Jules 	Kimmett, 	representing
Charging Party; 	Elaine Lustig, 	attorney 	(O'Melveny & 	Myers),
representing 	Respondent.
Before Manuel 	M. 	Melgoza, 	Administrative Law Judge.
I. 	PROCEDURAL HISTORY
The 	above-enumerated 	cases 	were 	consolidated 	by 	the 	Public
Employment 	Relations 	Board 	(hereinafter 	PERB or 	Board) 	itself
after 	an 	appeal 	was 	filed by Victor 	Wightman 	to 	the 	dismissal
of 	each 	of 	the 	charges 	by 	a 	PERB Regional 	Attorney.
Originally, 	these 	and 	several 	other 	unfair 	Practice 	Charges
were 	filed 	individually 	by 	Victor 	Wightman 	making 	various
allegations.
The 	allegations 	included 	in 	the 	above-enumerated 	charges
included 	the 	following:
1. 	Director 	of 	Transportation 	Max 	Barney 	threatened
Wightman with 	dismissal 	on December 	3, 	1982, 	for 	pursuing 	five
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.
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issues 	that were 	the 	subject 	of 	a 	grievance 	meeting 	on 	that
date.
2. 	Max 	Barney 	removed 	Wightman's 	school 	bus 	and 	his
personal 	property on December 	3, 	1982.
3. 	On January 12, 	1983, 	Supervisor 	James 	Srott 	informed
Wightman 	that 	pre-disciplinary 	charges 	would 	be 	read 	against
him and 	that 	he was 	to 	respond.
4. 	On about January 31, 	1983, 	Srott 	attempted 	to schedule
another 	pre-disciplinary meeting with 	Wightman, 	but 	upon 	being
informed 	that 	Wightman's 	representative 	(Jules 	Kimmett) 	was
unable 	to 	attend, 	Srott 	announced 	that 	he would 	send 	out 	a
letter 	of 	termination.
5. 	On about February 1, 	1983, 	a Mr. 	Simpson handed
Wightman a 	letter 	recommending 	dismissal, 	based 	in 	part 	upon
the events of December 3, 	1982.
6. 	On February 12, 	1983, 	Wightman 	received 	a 	letter 	from
the 	District 	Transportation 	Branch 	recommending 	his 	dismissal.
7. 	On April 	19, 	1983, 	Wightman was 	fired 	from his 	job
because of his 	union activity, 	which 	involved, 	among other
things, 	the 	filing of 	charges with PERB. 	The discharge 	took
place 	prior 	to 	a 	"Skelly proceeding."
8. 	On 	September 	7, 	1982, 	Deputy Director 	of
Transportation Ralph 	Jacobs, 	"intervened" 	and harassed
Wightman's 	previous 	supervisor, 	Mary Smith, because 	she had
1Wightman 	was 	a 	school 	bus 	driver 	for 	the 	District •
N	2

intervened 	on 	Wightman's 	behalf 	during his 	reinstatement
hearing in April 	1982.
9. 	Since September 	1982, 	Ralph Jacobs has 	refused 	to
supervise 	Bill 	Hamm, 	leading 	to an aborted 	firing of Wightman.
10. 	Ralph Jacobs 	tacitly 	supported 	Max 	Barney's 	"illegal
directive" 	to have Wightman's 	bus 	removed during negotiations.
Later, 	in response to Wightman's 	inquiries, 	Jacobs said 	"good,
take us 	to 	court 	then."
11. 	Ralph Jacobs 	failed 	to 	intervene while 	Max 	Barney made
threats 	toward Wightman's 	status 	as 	an 	employee 	of 	the District,
12. 	Ralph Jacobs 	has 	overseen 	and 	Ok'd 	all 	of 	Bill 	Hamm's
actions 	in 	reprisal 	against 	Wightman 	for 	his 	use 	of 	PERB
procedures.
13. 	On January 12, 	1983, 	during a meeting between Wightman
and 	District 	supervisory and managerial 	personnel, 	James 	Srott
refused 	to 	provide 	a 	list 	of 	pre-disciplinary 	allegations
concerning 	Wightman.
14. 	On May 6, 	1982, 	Eleanor Jones of 	the District
testified 	against Wightman 	at 	an 	Unemployment 	Insurance 	Appeal
Hearing using a 	copy of 	a 	Personnel 	Commission 	Decision 	that
had 	not 	yet 	been provided 	to Wightman.
15. 	On May 5, 	1982, 	the above decision was used at a PERB
hearing by Howard 	Friedman, 	yet Wightman, 	the 	subject of 	the
decision, 	had not yet 	received a 	copy.
16. 	On April 18, 	1983, 	Larry White, 	Personnel Commission
W	
3

Director, 	allowed the Commission to pass on a motion 	to have
Wightman 	dismissed 	despite 	the 	protestations 	of 	Wightman,
Kimmett 	and Howard Watts 	that 	a 	"Skelly proceeding" 	had 	not 	yet
taken place.
17. 	James 	Srott was hired 	into 	the 	District's
transportation 	branch 	sometime 	in 	1982 	without 	bargaining with
Service Employees International Union, 	Local 	99 	(hereinafter
Local 99), 	causing significant changes 	in working conditions.
"This 	unilateral 	move 	soon 	resulted 	in 	unwarranted 	spying,
false 	and manufactured 	charges, 	and 	finally one 	dismissal 	after
another."
18. 	On several occasions 	during 1983 	Mr. 	Srott has
followed Wightman 	into 	school 	board meetings 	at 	times 	he was
scheduled 	to 	address 	the board.
19. 	On March 	14, 	1983, 	Srott drew up an unsatisfactory
notice 	against 	Wightman based 	upon 	information 	Srott 	obtained
from 	"public 	speaker's 	card 	forms."
20. 	By February 1, 	1983, 	Srott delivered 	"garbage" 	charges
against Wightman 	in an attempt 	to process 	his dismissal, 	which
ultimately became effective on April 	19, 	1983.
21. 	At a meeting on March 25, 	1983, 	Ralph Jacobs denied
Wightman's 	and 	Kimmett's 	request 	to 	present 	witnesses.
22. 	Wightman was 	fired on April 	19, 	1983 with no
intervening action 	taken 	by 	Ralph 	Jacobs 	to 	notify 	school 	board
members 	that 	a 	"Skelly" 	hearing had not yet 	taken place.
A	
4

23. 	On April 29, 	1983, 	Wightman received a letter 	from
Ralph Jacobs 	indicating that, 	in a meeting held on April 	22,
1983, 	no 	evidence had been presented 	to 	show 	that 	Wightman's
Notice of 	Unsatisfactory 	Service was 	in error 	or 	that 	he had
been unfairly treated.2
In 	addition 	to 	the 	above 	allegations 	consolidated by 	the
Board, 	Wightman 	filed several 	related charges, 	some of which
were 	disposed 	of 	by 	an 	administrative 	law 	judge 	and 	some 	of
which 	were 	dismissed 	on appeal 	from 	a 	Regional 	Attorney's
dismissal. 	In LA-CE-1455, 	an administrative law 	judge
dismissed 	an 	allegation by 	Wightman 	that 	the 	District 	denied
union 	access 	to 	unit 	members when 	it 	removed notices 	that he,
acting as 	union agent, 	had posted on 	the 	union's 	worksite
bulletin board. 	The decision 	(H-O-U 	164) 	became 	final 	on
January 	27, 	1983 	when Wightman 	failed 	to 	file exceptions 	with
the 	Board 	itself.
In a separate charge, Case Number LA-CE-1770, 	Wightman
alleged 	that 	four 	District 	employees 	conspired 	to 	terminate 	him
from employment, 	and 	succeeded 	in 	having him removed 	on
2Paragraphs 	1 	through 	6 	were 	included 	in 	Unfair 	Practice
Charge 	Numbers 	LA-CE-1736 	and LA-CE-1767. 	These 	two 	charges
were 	identical. 	Paragraph 	7 was alleged 	in Case Number
LA-CE-1765. 	Paragraphs 8 	through 	12 were alleged 	in Case
Number 	LA-CE-1769. 	Paragraph 	13 	was 	alleged 	in Case Number
LA-CE-1771. 	Paragraphs 	14 	through 	16 were alleged 	in Case
Number 	LA-CE-1773. 	Paragraphs 	17 	through 	20 	were alleged 	in
Case 	Number 	LA-CE-1774. 	Paragraphs 	21-23 	were alleged 	in Case
Number LA-CE-1781.
5

April 	19, 	1983. 	The PERB upheld 	the dismissal 	of 	the Charge by
a Regional Attorney 	in Wightman v. 	Los 	Angeles 	Unified 	School
District 	(1984) 	PERB Decision No. 	412.3
In another charge, 	Case Number LA-CE-1766, 	Wightman made
allegations 	of 	certain 	conduct 	related 	to 	the District's
attempts 	to 	deliver 	disciplinary notices 	to 	him 	in 	1983. 	The
Regional 	Attorney's 	dismissal 	of 	the 	Charge 	was 	upheld by 	the
Board 	in Wightman v. 	Los Angeles 	Unified 	School 	District 	(1984)
PERB Decision No. 	425.
Finally, 	in another 	separate charge, 	Case Number
LA-CE-1775, 	Wightman 	charged 	that 	Superintendent 	Handler 	failed
to 	correct 	the 	"mishandling of 	the 	case 	to 	terminate
[Wightman]," 	including his 	failure 	to remedy a denial 	of a
"Skelly" 	hearing prior 	to perfecting his 	discharge. 	The Board
upheld 	the Regional 	Attorney's 	dismissal 	of 	that 	Charge 	as well
in Wightman v. 	Los Angeles 	Unified 	School 	District 	(1984) 	PERB
Decision No. 	426.
With 	respect 	to 	the 	charges 	consolidated by 	the 	Board 	that
are 	the subject 	of 	this 	decision, 	the PERB affirmed 	the
Regional Attorney's 	dismissal 	on all 	the allegations 	except
one, 	in Wightman v. 	Los Angeles 	Unified School District 	(1984)
PERB Decision No. 	473. 	Specifically, 	the Board held that
Wightman had 	failed 	to 	establish 	a prima 	facie 	case 	that 	his
3 There 	is 	no 	indication 	that 	an 	appeal 	was 	filed 	with 	the
Court of Appeal 	in this 	case.
6

termination 	was 	motivated 	by his 	engaging 	in 	protected
activities, 	including 	filing 	charges 	with 	PERB and pursuing a
grievance on 	December 	3, 	1982. 	The Board found a prima 	facie
case was 	established 	only as 	to 	the 	allegation 	that Wightman
was 	threatened with 	dismissal 	on 	December 	3, 	1982 	for 	pursuing
a 	grievance. 	The 	case was 	remanded 	to 	the General 	Counsel 	for
disposition 	consistent with 	the 	Decision. 4 On January 10,
1985, 	the General Counsel 	issued a Complaint pursuant 	to PERB
Decision 	No. 	473. 	The charging paragraph 	reads as 	follows:
4. 	On or 	about December 	3, 	1982,
Respondent, 	acting through 	its agent,
Director 	of 	Transportation 	Max 	Barney,
threatened Mr. 	Wightman with 	dismissal 	if he
pursued a 	grievance 	against 	the 	Respondent.
After 	an 	informal 	conference 	(held March 	18, 	1985) 	failed
to result 	in a 	settlement of 	the Charge, 	the case was set 	for
formal 	hearing. 	A pre-hearing 	conference 	was 	conducted 	by 	the
undersigned on April 	15, 	1985. 	Thereafter 	a 	formal 	evidentiary
hearing before 	the 	undersigned was 	held April 	19, 	April 	30,
May 10, 	and May 13, 	1985. 	Per 	agreement, 	post-hearing briefs
were submitted by both parties by June 	13, 	1985, 	and 	the 	case
was 	then 	submitted 	for 	Proposed 	Decision.
II. 	FACTS
A. 	Background
Victor 	Wightman was hired as 	a 	bus 	driver 	for 	the 	District
4 Wightman did not 	appeal PERB Decision No. 	473.
7

sometime 	in 	1978. 	After 	a break 	in 	service 	during which
Wightman 	performed 	services 	as 	a VISTA Volunteer, 	he was
re-employed by 	the 	District 	in 	1980. 	His years 	of 	employment
with 	the 	District have been 	marked by a 	number 	of 	incidents 	and
confrontations 	with 	supervisory 	and 	managerial 	personnel.
Beginning with 	his 	attempted 	return 	to 	service 	in 	1980,
Wightman 	experienced 	reemployment 	difficulties, 	and 	after
several attempts, 	had to obtain the help of his Union, 	SEIU
Local 	99. 	After 	the union was 	successful 	in 	obtaining his
re-employment, 	Wightman discovered that his 	name 	on 	the
seniority 	list 	did not 	reflect 	his 	1978 	seniority date. 	He
attempted, 	unsuccessfully, 	to convince Ralph Jacobs, 	District
Deputy Director 	of 	Transportation, 	that, 	according to his
(Wightman's) 	interpretation 	of 	the 	collective bargaining
agreement, 	his 	1978 	seniority should be 	retained. 	According to
Wightman's 	testimony, 	he grieved 	the 	denial 	of 	the 	request
through 	union 	representative 	Frank 	Loya. 	He 	was 	unsuccessful
in those efforts as well, 	causing him a disadvantage, 	vis-a-vis
other 	drivers, 	when 	it 	came 	time 	to bid on preferred driving
routes.5
5Wightman, 	although 	reemployed 	in July 1980, 	actually
started work 	during September 	1980, 	about 	the 	time 	school
started. 	It 	is 	also at 	that 	time that 	the District's many
drivers 	(over 	1000) 	bid for 	their 	preferred routes. 	Routes are
awarded 	in order 	of 	seniority. 	Therefore, 	prior 	to bidding,
the 	drivers 	are 	customarily 	sent 	a 	copy of 	an 	updated 	seniority
list. 	This 	apparently was 	the 	time when Wightman 	discovered 	a
8

In January of 	1981, 	Wightman discovered 	that his bus had
been 	damaged, 	as 	though hit purposely with 	a 	sledge hammer. 	He
made 	attempts 	to 	report 	the 	incident 	and 	to 	seek 	an
investigation by his 	superiors. 	He was 	called 	into 	Supervisor
Bill 	Hamm's 	office 	and suspended 	for 	two weeks 	in 	connection
with 	those attempts.
In 	response 	to Hamm's proposed 	discipline, 	Wightman 	stated
that 	he would 	grieve 	the 	"threat" 	and would 	also 	continue 	to
grieve his 	failure 	to 	win his 	September 	(1980) 	bidding 	route.
Hamm 	then 	allegedly 	told 	Wightman 	that 	he 	would 	also
involuntarily 	transfer 	him 	to 	another 	location 	because 	of 	some
complaints 	he 	had 	received 	from a 	school 	principal.
Thus, 	after Wightman served his 	two weeks' 	suspension from
driving, 	he was 	transferred 	to an area under 	the 	supervision of
Paul 	Bronstein.6 According 	to Wightman, he 	began 	to 	have
problems 	with 	Bronstein almost 	immediately. 	Some 	two 	months
later, 	Wightman was 	transferred again.
Prior 	to 	1983 Wightman persevered 	in 	his 	employment 	despite
two attempts to terminate him. 	in early 1981, Vic Quiarte, 	a
possible discrepancy in his 	placement 	on 	the 	list. 	The
discussion 	below 	regarding 	seniority 	further 	illuminates 	this
topic.
6Mid-year 	involuntary 	transfers 	are 	considered
undesirable because, 	among other 	things, 	it usually means 	that
drivers 	must 	commute 	a 	greater 	distance 	to 	their 	assigned 	sites
and have 	to adjust 	to 	the 	local 	practices 	of 	each 	supervisor.
9

supervisor, 	drew up dismissal 	charges alleging, 	inter 	alia,
that 	Wightman 	had 	failed 	to 	attend 	a 	pupil 	management 	course
and 	that 	he 	had not 	worn 	a proper 	uniform 	(shirt). 	Through
negotiations with Wightman's 	union 	representative, 	the
recommendation was 	changed 	to 	a 	recommendation 	for 	suspension,
and, 	by the summer, 	dropped entirely. 	Wightman claims 	that
this 	struggle 	to 	keep his 	job 	prevented 	him 	from being 	given
summer 	employment 	in 	1981.
Upon 	returning to work 	in 	the 	fall 	of 	1981, 	Wightman was
unable 	to 	drive 	a bus 	for 	1-2 	weeks because 	the District had
allegedly 	lost 	documents 	that 	it 	ordinarily kept 	and which 	were
required 	to be 	filed with 	the 	California 	Highway Patrol 	in
order 	for 	Wightman 	to be 	issued 	a 	driver 	certificate.
At about 	the same time, 	in September 	1981, 	Wightman had a
confrontation 	with 	his 	supervisor 	when 	he 	posted 	union 	notices
on 	a 	District bulletin board. 	The District 	removed 	these
notices 	because 	they were 	not 	"official" 	union 	communications
and because 	they had 	received 	calls 	from a 	union 	official,
Howard Friedman, 	that 	there were 	unauthorized notices 	on 	the
board.7 Wightman's 	supervisors 	called 	Wightman 	into 	their
office 	to 	discuss 	the 	circumstances 	of 	the 	incident 	and 	to
discuss Wightman's 	alleged and 	unauthorized 	use 	of 	his 	bus.
7These 	incidents 	were 	the 	subject 	of 	an 	Unfair 	Practice
Charge 	(LA-CE-1455) 	which was 	ultimately dismissed 	(H-O-U 	164).
10
J

There 	is 	no 	evidence 	that 	Wightman 	was 	disciplined 	for 	either
posting 	union 	notices 	or 	for 	unauthorized 	use 	of 	the bus 	at
that time.
However, 	beginning in about December 	1981, 	the District
again attempted 	to discharge him. 	In this attempt, 	his prior
conduct, 	including Wightman's previous 	failure 	to 	complete a
pupil management 	course, 	his 	failure 	to wear 	a proper 	uniform,
improperly parking his 	bus 	during 	the 	"sledge hammer 	incident,"
and his 	improper 	use 	of 	a District 	bus 	(parking bus between
shifts 	near 	Pierce 	College 	rather 	than 	assigned 	lot 	in 	order 	to
attend 	classes) 	alleged 	during 	the 	notice-posting 	incident,
were 	considered. 	The hearing 	officer 	conducting 	the 	eventual
dismissal 	hearing 	for 	the 	District's 	Personnel 	Commission,
refused 	to 	accept 	the 	District's 	recommendation 	for
termination, 	but 	found sufficient 	evidence 	of 	insubordination
to 	reduce 	it 	to a 	two-month 	suspension, 	effective 	from March
1982 	to May 1982.
Although Wightman's 	tenure 	as 	a bus 	driver 	was 	marked by
such 	incidents as 	the above, 	his actual 	job performance as a
driver 	has 	been praised not 	only by 	some 	of 	his 	supervisors,
but 	recognized 	in 	the 	decision 	of 	the 	Personnel 	Commission
hearing officer 	noted above. 	That 	hearing 	officer
characterized 	the 	events 	thusly:
The 	striking element 	of 	the 	entire 	episode
is 	that 	appellant 	has 	demonstrated 	the
ability 	to 	more 	than 	adequately perform his
11

assigned 	duties 	and when 	faced with 	the
ultimate 	insistence of his 	supervisors, 	has
performed 	admirably.
This 	troubled 	employment history 	cannot be 	fully
appreciated without 	reference 	to 	Wightman's 	union 	and 	other
activity taken 	on behalf 	of his 	fellow drivers. 	During 	a
period of 	his 	employment, 	Wightman was 	an 	officially recognized
and 	elected 	steward 	of 	Local 	99, 	the 	exclusive bargaining agent
for 	the bargaining unit which 	includes 	bus 	drivers. 	However,
since 	about 	September 	1981 	there was 	a 	dispute between 	the
District 	and 	Wightman 	and 	between 	Wightman 	and 	some 	Union
officials as 	to whether he was a steward. 	For 	example, 	during
the 	1981 	meeting with 	supervisors 	at 	which 	Wightman 	was
questioned 	about his 	posting of 	unofficial 	union 	notices, 	the
supervisors 	asked 	two 	union 	officers 	present 	whether 	Wightman
was 	a steward of 	Local 99. 	One of 	them answered 	"yes" 	and the
other 	answered 	"no." 	In 	Administrative 	Law Judge 	Jean 	Thomas'
decision 	(H-O-U 164), 	she 	found that, 	although Wightman was
elected as 	a 	steward 	in mid-May 1981, 	by September 	of 	1981 he
was 	no 	longer 	a 	steward by virtue 	of 	his 	reassignment 	to
another 	location 	and pursuant 	to 	Local 	99's 	steward policy.
In any 	event, 	even 	though 	Wightman 	had not been 	officially
recognized by 	the 	District 	as 	a 	steward 	after 	September 	1981,
he 	continued 	to 	act 	as 	a de 	facto 	steward up to 	the 	time 	of his
discharge. 	He held himself 	out 	as 	a 	steward and wore a 	steward
badge. 	He 	represented several 	drivers 	in pre-disciplinary and
12

investigatory meetings with 	supervisors. 	He 	and Jules 	Kimmett,
who also purports 	to be a shop steward for 	Local 	99, 	have 	filed
grievances 	on 	behalf 	of bus 	drivers 	and 	have 	made 	many
attempts, 	either 	in meetings with supervisors, 	or 	during school
board meetings, 	to better 	the working conditions 	of 	bus
drivers. 	Indeed, 	many drivers 	thought Wightman was 	a 	union
steward 	up 	to 	the 	time 	of 	the 	termination.
That Wightman holds himself 	out 	as 	a 	labor 	representative
and 	that he 	is 	outspoken about 	the 	rights 	of 	employees 	is
hardly a 	secret within 	the District, 	In 	his 	original 	decision
reducing a 	termination 	recommendation 	to 	a 	suspension,
Personnel 	Commission hearing officer 	Bicknell 	Showers, 	made 	the
following 	observation:
Appellant 	is 	active 	in 	the affairs of his
union and 	is 	a member 	of 	a 	faction which
opposes 	the 	present 	administration. 	He 	has
been 	active 	in 	attempting 	to 	depose 	the
incumbent 	Executive 	Secretary.
B. 	Wightman's 	"Grievances" 	of December 	3, 	1982
In 	the allegation that 	is pertinent 	to this 	case, 	Wightman
claims 	that 	the 	District's 	threat 	of 	dismissal 	occurred 	during
a 	meeting which 	was 	set 	up 	for 	the 	purpose 	of 	discussing 	five
pending grievance 	issues: 	(1) 	the procedure of determining
seniority of bus drivers; 	(2) 	the lack 	of 	drinking water 	for
bus 	drivers 	in 	the business 	division 	freeway parking 	lot; 	(3)
involuntary transfers; 	(4) 	the 	improper 	repositioning of
Wightman's name on 	the seniority list; 	and 	(5) 	$3,000 	in
13

backpay 	allegedly 	owed 	to 	Wightman.
1. 	Seniority
During the 	fall 	of 	1982, 	the District 	directly employed
some 	1000-1100 	bus 	drivers.u Usually about 	two weeks before
the 	first 	day of 	each 	school year, 	and pursuant 	to 	a 	collective
bargaining contract procedure, 	drivers 	bid 	on 	the 	route 	they
desire. 	Since 	the bids are awarded 	in order 	of seniority, 	the
District 	attempts 	to 	notify 	drivers 	of 	scheduled 	bid 	meetings
and provides 	updated 	seniority lists 	some 	time prior 	to 	the
bidding procedure.
The 	"bidding seniority" 	is 	also 	important 	in 	the 	area 	of
transfers because, 	if 	a vacancy becomes 	open during the 	school
year, 	the 	driver 	with 	the highest 	seniority who bids 	on 	the
position 	is 	awarded 	the 	assignment. 	Since bus 	parking
locations 	are 	located 	at 	different 	sites 	throughout 	Los
Angeles, 	drivers usually try to bid for 	a 	route 	in an area
within 	a 	short 	commuting 	distance 	from 	their 	residence.
Because of 	the many drivers, 	there 	is 	a recurring problem
regarding discrepancies or 	inaccuracies 	in 	the 	lists, 	It 	is
common 	for 	drivers' 	names 	to be moved up or 	down on 	the list,
and 	there 	are 	constant 	complaints 	and 	gripes 	from drivers 	who
feel 	either 	that 	their 	names were wrongly placed 	or 	that 	the
8This 	does 	not 	include 	the 	several 	hundred drivers
employed 	through 	a 	contractor, 	ARA Transportation.
14

seniority procedure was 	unfair.g Although 	there 	is 	a
contractual 	procedure 	for 	"clarifying" 	the 	list 	prior 	to
bidding, 	that has 	failed to alleviate 	the recurrent problems.
2. 	Wightman's 	"Wrongful" 	Placement on 	the List
The beginning 	of 	Wightman's 	own 	problem with 	the 	seniority
list 	occurred at 	the 	time 	of his 	re-employment after 	a break 	in
service when he was 	a VISTA volunteer. 	According 	to Wightman's
interpretation of 	the contract 	in effect at 	that 	time, 	he
should have been 	credited with 	a 	1978 	hire 	date 	and his
seniority 	should 	only have 	been 	reduced 	by 	the 	length 	of 	time
he was 	at VISTA. 	Apparently 	the 	District 	felt 	he 	should 	not 	be
credited with 	service prior 	to his 	re-employment 	in 	1980,
because Wightman's 	name was 	moved 	toward 	the 	bottom of 	the 	list
upon 	being 	rehired.
In 	part because of 	this, 	Wightman 	experienced problems 	in
securing preferred bids 	during 	the 	subsequent 	annual 	bidding
meetings.
3. 	Water Problem
At 	a 	bus 	parking 	location 	under 	a 	freeway near 	the business
division, 	the District provides 	no drinking water 	and no
9Wightman 	and 	his 	supervisors 	had 	disagreements 	regarding
the proper 	interpretation 	of 	contract 	language 	- whether
seniority 	should 	be 	calculated 	by 	date 	of 	hire 	and 	subtracting
only breaks 	in service, 	or whether 	it should be 	calculated
solely upon number 	of hours worked, 	or 	a 	combination of 	these
factors.
9
15

running water 	for 	toilets, 	instead, 	drivers have had 	to walk
what 	they believe 	is 	a considerable 	distance 	to 	a 	garage 	in 	the
District's 	service 	center. 	Portable 	toilets 	without 	running
water 	are provided 	at 	the 	freeway site. 	The 	lack 	of 	drinking
and 	running water 	has 	been 	of 	general 	concern among 	drivers.
4. 	Involuntary 	Transfers
Partially as 	a 	result 	of 	the bidding process, 	and 	sometimes
because of 	other 	factors, 	drivers 	are 	transferred 	during the
work 	year 	to 	locations 	for 	which 	they have 	not 	bid 	and which
are often 	located 	inconveniently. 	According to Wightman, 	it
has 	been 	a 	concern 	for 	him and 	for 	many 	drivers 	who believe
that 	the 	District 	abuses 	the 	involuntary 	transfer 	mechanism 	in
the contract.
In spite of Wightman's protests, 	the District has 	relied
upon 	a 	contract provision which 	gives 	it 	the 	discretion 	to
involuntarily transfer 	drivers 	at 	any 	time. 	This 	has 	been
referred 	to by Wightman as 	the 	"Good of 	the 	District" 	clause.
(See 	Respondent's 	Exhibit 	C, 	page 	25.) 	Because Wightman has
been 	involuntarily 	transferred himself 	several 	times, 	and was
unable 	to bid 	to a better 	location because 	of his 	status 	on 	the
seniority 	list, 	he has had 	constant problems with 	the
District's 	use 	(or 	alleged 	"abuse") 	of 	that policy.
5. 	Backpay Problem
After 	the 	District's 	attempt 	to 	terminate Wightman was
reduced to a 	suspension in 	the spring of 	1982, 	the District
16

failed 	to 	reinstate 	him after 	the 	suspension 	period 	expired.
The District 	claimed that 	it was not 	its 	fault, 	since 	it had
not 	been 	officially 	notified 	by 	the 	Personnel 	Commission 	of 	the
decision 	to 	suspend. 	The 	Personnel 	Commission 	acknowledged
some blame, 	and 	its 	director 	indicated 	to Wightman 	that 	$3,000
might be 	a 	fair 	figure 	to 	compensate him for 	the 	loss 	of work
resulting from a 	failure to reinstate. 	Later, 	however, 	the
District 	and 	its 	Personnel 	Commission 	could 	not 	agree 	on who
was 	responsible 	for 	making 	compensation.10
C. 	The 	October 	1982 	Meeting
In about 	mid-October 	1982,11 Wightman 	and 	Jules 	Kimmett
arranged 	a 	meeting with 	Max 	Barney. 	The 	meeting 	was 	scheduled
to 	take 	place 	at 	the 	Transportation 	Department's 	headquarters
office on 	Soto Street, 	in attendance were Kimmett, 	Wightman,
Barney, Ralph Jacobs, 	James Srott 	(Personnel Services Manager),
and a bus 	driver, 	Donald Roper. 	Wightman 	arrived by means 	of
his 	school 	bus without 	incident.
The 	discussion 	during 	the 	meeting 	mainly 	centered 	around
seniority problems 	in general, 	lack 	of water, 	backpay,
10Although 	the 	record 	is not precise 	regarding dates, 	it
appears 	that Wightman was 	eligible 	for 	reinstatement 	in 	May
1982 	and 	possibly 	could have 	obtained 	a 	summer 	driving
assignment 	in 	addition 	to 	resuming his 	duties 	for 	the 	remainder
of 	the 	school 	year. 	He was 	eventually reinstated 	in 	the 	fall
of 1982.
11The 	testimony 	differed 	regarding 	the 	exact 	date 	of 	this
meeting. 	References were made 	to October 	11 	and 	October 	13 	as
the date. 	Undisputedly, 	the meeting took 	place 	in 	October.
1 1
17
10
"

involuntary 	transfers, 	and 	Wightman's 	alleged wrongful
placement 	on 	the seniority list. 	Ralph Jacobs, 	in 	testifying,
recalled 	that 	Wightman 	made 	allegations 	that 	the 	seniority
list, 	in general, was incorrect, 	and that Wightman mentioned
the 	fact 	that 	he 	had 	lodged a 	complaint 	on behalf of 	30 	drivers
who had 	lost 	their 	places 	on 	the 	list. 	He also 	recalled
Wightman's 	accusations 	that 	drivers 	were 	complaining 	about
being 	transferred 	against 	their 	will 	from one 	area 	to 	another,
and 	that 	the 	issue 	of 	lack 	of water 	for 	drivers 	was 	raised, 	In
addition, 	he 	recalled 	that 	Wightman 	raised 	concerns 	about
himself, 	including his 	claim that 	the 	District 	owed him
backpay, 	that 	he had been 	incorrectly placed on 	the 	seniority
list, 	and 	that 	he 	had been 	involuntarily 	transferred 	on
different 	occasions.
According 	to 	Srott's 	testimony, 	what Wightman was
expressing at 	the October 	meeting, 	was 	what 	he had already
heard 	over 	and 	over 	again 	from other 	drivers. 	Srott 	explained
that 	seniority was 	a 	constant question 	among 	them, 	and 	that 	he
knew at 	the time 	that 	it was 	an area of 	common concern. 	His
explanation 	of 	the 	cause 	of 	the 	concern was 	that 	the 	seniority
computations were very confusing, 	that 	the 	drivers 	did not
fully 	understand 	the process, 	and were 	constantly upset 	about
what 	they believed were 	inadequacies 	in 	the 	system. 	Srott
acknowledged 	that 	he 	did 	find 	some 	errors 	in 	the 	list 	on
occasion, 	but 	corrected those.
18

There was 	no 	resolution of 	the 	items 	discussed. 	Max Barney
listened 	to Wightman's 	presentation, 	announced 	that 	he 	would
investigate 	the 	concerns, 	and would 	get back 	to Wightman.
According 	to 	Donald Roper's 	testimony, 	Wightman 	told Jacobs
that 	he 	also 	wanted 	some 	time 	to 	gather 	(supporting 	evidence
from) 	other 	drivers 	in order 	to try to straighten out 	some of
the problems 	they were having. 	Jacobs, 	according to Roper,
responded 	that 	that would be okay. 	And, 	although 	Kimmett asked
for 	a reply date, 	no 	specific date was 	set 	for 	a 	response or
for 	a 	future meeting.
On 	or 	shortly after 	the 	date of 	the meeting, 	Max 	Barney
asked 	Srott 	to 	look 	into Wightman's 	concern 	regarding 	seniority
and 	the 	backpay 	claim. 	Ralph Jacobs 	was 	asked 	to 	investigate
the water 	situation.
Sometime 	after 	the October 	meeting, 	Jacobs 	reported 	to
Barney 	that 	he 	had 	checked with 	his 	maintenance 	department 	and
the 	District's 	real 	estate 	office 	and 	determined 	that 	it 	would
be 	too 	costly 	to pipe water 	into 	the 	location 	under 	the 	freeway
where 	it was 	lacking. 	According 	to Jacob's 	testimony, 	the
District 	supervisors 	told 	the 	drivers 	that 	they would have 	to
go 	to 	the 	business 	garage 	and 	get 	drinking water 	there. 12
l 2 See Reporter's Transcript, 	pages 	390-391. 	Although
Jacobs 	had his 	people 	so 	inform drivers 	on 	a haphazard basis,
it 	is 	undisputed 	that no 	formal 	response was 	given 	to Wightman
and 	Kimmett 	regarding 	their 	inquiries 	until 	their 	subsequent
December 	3, 	1982 meeting.
19

Similarly, 	within 	two 	to 	three weeks 	after 	the 	October
meeting, 	Srott 	reported his 	findings 	on 	the 	seniority and
backpay 	issues. 	According to his 	testimony, 	he 	found 	that 	the
seniority 	list 	was 	correct 	and, 	based upon 	conversations 	with
Personnel 	Commission 	staff, 	concluded 	that 	Wightman 	was 	not
deserving 	of 	any backpay 	money.
Although 	the 	findings were 	reported 	to 	Barney, 	no 	attempt
was made 	to 	set 	up another 	meeting or 	to 	communicate 	the
findings 	to Wightman and Kimmett. 	Barney 	surmised 	that 	it 	was
the heavy 	schedule 	and workload 	of 	the 	department 	that 	was 	the
cause 	for 	the delay, 	inasmuch 	as 	they were 	in 	the process of
making many 	changes 	in 	the 	routes.
D. 	The Meeting of 	December 	3, 	1982
No 	written 	grievance 	was 	filed 	by Wightman 	regarding 	the
topics 	discussed at 	the October 	meeting. 	Rather, 	he and
Kimmett 	waited 	for 	Barney 	to 	schedule 	a 	future 	meeting 	to
discuss 	the 	outcome 	of 	their 	investigation 	and 	studies.
Although 	Max 	Barney 	did not 	take 	steps 	to 	initiate 	a 	future
meeting, 	his 	testimony 	indicates 	that 	he had planned 	to
schedule 	one 	on 	his 	own 	initiative. 	When 	asked why he 	decided
to meet with Wightman on December 	3, 	1982, 	although he believed
he was 	not 	required 	to, 	he 	responded 	thusly:
A. 	I 	didn't have 	to meet with him. 	I met
with 	him because 	in 	the 	October 	meeting 	I
had 	agreed 	to 	— 	and 	I 	thought 	about 	it, 	I'm
behind, 	that 	I need to 	schedule a meeting
with 	Mr. 	Wightman or 	need 	to 	arrange
20

something. 	Then I 	saw on my calendar, 	well,
good 	good, he's arranged that, and I will be able
to 	give 	him 	the 	response.13 (RT 	p. 	203,
emphasis 	added.)
After 	Barney noticed 	that 	the meeting had been 	arranged, 	he
made 	sure 	that 	Jacobs 	and 	Srott 	had 	followed 	up on 	their
assignments 	and were 	ready 	to 	attend. 	Between Wightman's 	call
and 	the 	December 	3 	meeting 	there were 	no 	communications 	from
Barney, 	Srott, 	Jacobs or 	Wightman's 	supervisor 	to Wightman
concerning 	the 	logistics 	and/or 	arrangements 	of 	the 	meeting.
Because Wightman was working a 	"split 	shift," 	he 	arrived at
the meeting at 	about 	11:00 	a.m., 	the 	scheduled 	time. 	His work
schedule 	was 	such 	that 	he 	had 	an 	afternoon 	route 	("run") 	at
1:30 	p.m. 	Therefore Wightman 	drove his bus 	to 	Soto 	Street 	as 	he
had 	done 	for 	the 	October 	meeting 	and 	as 	he had 	done 	many 	times
in the past.
At 	the Soto Street office, 	he met Jules Kimmett, 	who was
also scheduled to be present 	for 	the meeting. 	Lee Hunter, 	a
bus 	driver 	who 	had been 	recently 	discharged 	by 	contractor 	ARA
Transportation 	Company 	also 	accompanied 	Kimmett 	and
Wightman. 14
13Wightman 	initiated 	the 	call 	that 	led 	to 	the 	meeting.
He 	called 	Barney's 	secretary, 	who 	selected a 	date when 	Barney
was 	free. 	That 	date happened 	to be December 	3. 	She put 	the
date 	on 	Barney's 	calendar 	and arranged 	to have Ralph 	Jacobs 	and
Jim Srott 	set 	the 	date 	aside 	for 	the meeting as 	well. 	The
meeting site was 	to be 	the 	Soto 	street 	office, 	the 	same as 	the
previous 	meeting.
14Hunter 	was 	not 	a member 	of 	Wightman's 	bargaining 	unit,
21

At 	the outset, 	Wightman announced 	that he wished 	to 	obtain
a 	hearing 	for 	Hunter 	inasmuch 	as 	he 	had 	been 	dismissed without
some 	form of 	due process, 	and at 	the 	recommendation 	of 	the
District. 	Max 	Barney 	refused 	Wightman's 	request 	and 	told 	him
that Hunter 	had 	no 	contractual 	rights 	to 	a pre-discharge
hearing, 	was not an employee of 	the District, 	and would refuse
to 	talk 	further 	regarding 	a 	disciplinary 	hearing 	for 	Hunter.
Wightman 	insisted 	upon 	a 	hearing. 	Barney 	refused 	and 	asked
Hunter 	to 	leave 	the 	room. 	The 	testimony 	conflicted 	regarding
whether 	Hunter 	remained or 	left.15	15
Those present at 	at 	the December 	3 	meeting, 	not 	including
Lee Hunter, were Wightman, 	Kimmett, 	Barney, 	Jacobs and Srott.
After 	the 	exchange 	regarding Hunter, 	the 	topic 	changed 	to 	one
where 	Wightman 	announced 	that 	he 	hoped 	to 	achieve 	a 	resolution
to 	the 	topics 	discussed 	in 	October 	because 	there had been 	too
many reprisals 	in 	the department, 	such 	as his 	loss 	of money,
nor 	was 	he 	covered 	under 	any 	collective 	bargaining 	agreement 	of
the 	District 	or 	represented by any 	exclusive 	employee
organization.
15Those 	present 	on 	behalf 	of 	the 	District 	testified 	that
Hunter 	left 	the office. 	Hunter, 	Kimmett 	and Wightman 	testified
that 	he 	remained 	until 	the meeting's 	conclusion. 	Hunter's
memory was 	so poor 	and his 	answers 	so 	equivocal 	that 	I
discredit his 	testimony as 	to 	what 	happened 	after 	he 	was 	asked
to 	leave. 	The 	testimony he 	gave 	regarding the 	substance 	of 	the
meeting after 	that 	point was 	almost 	entirely 	in 	response 	to
extremely 	leading questions 	and/or 	questions 	repeated 	over 	and
over 	again. 	He 	seemed very unsure 	of his 	answers. 	He 	either
was 	not present 	for 	the whole meeting or 	his memory 	is 	so poor
that his 	testimony 	is 	entirely unreliable.
22

the 	loss of his paperwork, 	and 	the adverse attitude of
supervisor 	Bill 	Hamm.
Wightman 	focused his 	comments 	next 	on 	the water 	issue 	and
asked why 	it was 	that 	drivers 	were 	denied 	drinking water 	at
their 	worksites while 	other 	District 	employees 	were 	not.
Barney responded 	that 	they had 	done 	a 	study, 	and 	that 	the 	costs
of 	providing 	running water 	were 	too 	prohibitive. 	Wightman
suggested 	that 	the 	costs 	could be minimal 	if 	the 	District
provided 	bottled 	("Sparkletts") 	water 	instead 	of 	piping 	it 	in.
Barney 	answered 	that 	that 	would 	not 	work 	because 	the 	bottles
might be 	stolen. 	Wightman 	disagreed, 	noting that 	a 	guard had
been 	hired 	to 	patrol 	the 	area 	anyway and 	that 	some 	sort 	of
locked 	box 	could 	be 	installed 	to 	prevent 	theft 	after 	working
hours. 	Barney refused to concede, 	reaffirming 	that 	it had
already been 	decided 	that 	there 	would 	be 	no 	water 	provided 	at
the 	business 	division 	freeway 	location.16	16 	Barney 	added 	that
he 	would 	ask 	the 	drivers 	to 	get 	their 	water 	at 	the 	business
division 	garage.
The 	seniority 	issue was 	discussed next, 	both 	as 	it 	affected
District 	drivers 	and as 	it 	affected 	Wightman 	in particular.
16Barney 16 Barney, Srott, Jacobs, Kimmett, Wightman and Hunter all
testified regarding the events 	at 	the December 	3 	meeting. 	As
is 	to 	be 	expected when 	several 	witnesses 	testify 	regarding the
events 	of 	a 	lengthy meeting, 	there were some differences. 	The
account described 	is 	a 	distillation 	of what 	I 	believe 	to be 	the
most 	accurate 	account, 	based 	upon 	the 	credited 	testimony 	of 	all
witnesses 	and 	their 	demeanor. 	Critical 	disputed 	areas 	will 	be
discussed 	below.
1
23
6sarney

Wightman 	stated 	that 	there 	were 	problems 	every year 	with 	the
seniority 	list 	and 	the bidding procedure. 	He explained 	that 	it
affected 	the 	drivers 1 morale because 	they 	felt 	they were 	at 	the
whim of 	the 	Soto 	Street 	supervisors, 	which 	in 	turn 	caused
negative 	feelings 	and 	fighting among 	them 	in 	attempts 	to 	secure
a 	good position 	for 	themselves. 	Wightman 	gave 	the 	names 	of
other 	drivers 	experiencing problems 	with 	their 	seniority
positions. 	He 	added 	that 	the 	situation was 	the worst he had
seen 	in his 	experience, 	and proposed 	that 	Barney work 	with 	the
Union 	to 	draw up one 	accurate 	seniority 	list.
Regarding his 	own position 	on 	the 	list, 	Wightman 	complained
that, 	despite 	his 	having 	worked 	there 	fairly 	steadily 	since
1978, 	except 	for 	his absence while at VISTA, 	his name had been
placed near 	the bottom of 	the 	list. 	Wightman 	explained 	that,
according 	to his 	interpretation 	of 	pertinent 	contract 	language,
he 	should 	only have been 	deducted 	for 	time 	at VISTA. 	He 	added
that, 	because of a District miscalculation, 	he had continuing
bidding 	difficulties 	during 	the 	periodic bidding proceedings.
Barney responded 	that 	he 	was 	not 	required 	to 	meet 	with 	the
Union. 	He 	explained that 	there was 	a 	contract procedure 	for
challenging 	the 	seniority 	list 	prior 	to 	bidding. 	If 	a 	driver
objected 	to 	the 	accuracy of 	the 	list, 	he was 	required 	to
register 	the 	complaint 	and 	provide 	supporting 	evidence. 	If 	the
list 	turned out 	to be 	inaccurate, 	it would be corrected. 	He
added 	that 	he 	had 	had 	the 	seniority 	list 	checked 	after 	Wightman
24

complained, 	and was 	satisfied 	that 	it was accurate, 	and 	that
the 	matter 	was 	settled.
When 	the 	topic 	of 	involuntary 	transfers 	was 	discussed,
Wightman 	told 	Barney 	that 	he 	should 	find 	a 	solution 	to 	stopping
the 	involuntary 	transfers 	of 	drivers, 	including himself
(Wightman). 	He suggested 	that 	the District meet with 	Union
representatives 	when 	any 	involuntary 	transfer 	was 	contemplated,
but 	prior 	to 	its 	effectuation, 	pointing out 	that 	many 	drivers
faced 	similar 	predicaments 	of 	being 	transferred 	against 	their
will.
The 	reply 	from Barney was 	that, 	according to 	the 	contract,
the 	District had 	a 	right 	to 	transfer 	employees whenever 	it was
in 	its 	best 	interests. 	After 	Wightman 	and Barney argued over
their 	differing 	interpretations 	of 	the 	contract 	language 	relied
upon by the 	latter, 	Barney stated 	that he was within his
contractual 	rights 	and 	rejected Wightman's 	suggestion 	to 	meet
with 	the 	Union.
Regarding backpay, 	Wightman 	reiterated his 	request 	that 	the
District 	reimburse 	him for 	money and 	time 	lost 	due 	to 	the
District's 	failure 	to 	reinstate 	him after 	the 	Personnel
Commission 	reversed 	the 	department's 	recommendation 	of
termination 	in 	the 	spring of 	1982. 	James 	Srott 	explained 	that
Wightman was 	not 	entitled 	to 	backpay because 	the 	Personnel
Commission 	could 	not 	find him 	(Wightman) 	to 	tell 	him 	that he
could 	come back 	to work. 	Max Barney stated 	that 	it was 	not
25
.

within 	his 	power 	to 	reimburse Wightman 	for 	his 	reinstatement
difficulties.
Next, 	there 	was 	a 	general 	discussion 	regarding 	the 	District's
relationship with 	the 	Union. 	Wightman 	complained 	that 	the hiring
of James 	Srott was 	a 	problem and a 	threat 	to 	the Union's
stability 	inasmuch 	as 	he had been 	setting many people 	up 	for
dismissal 	and 	carrying out 	disciplinary actions. 	Wightman 	and
Kimmett 	complained 	about 	the 	District's 	bad 	faith 	bargaining 	and
declared 	that 	there 	should 	have 	been 	notification 	and 	bargaining
before 	Srott was 	"unilaterally" 	hired.
Wightman 	then 	again brought 	up 	some 	of 	the 	specific
"grievance" 	items, 	noting his own previous difficulties 	in being
involuntarily 	transferred 	by 	supervisors 	he 	did 	not 	get 	along
with. 	The 	"grievance" 	items were 	repeated by Wightman, 	and Jules
Kimmett 	made 	other 	allegations 	regarding 	the 	District's 	historic
failure 	to honor 	its 	collective bargaining obligations. 	Barney
reiterated 	the 	District's 	decision, 	and 	referred 	again 	to 	the
contract's 	right 	to 	transfer 	when 	it was 	for 	the 	good 	of 	the
District.
1. 	The Alleged 	Threat
At 	some 	point 	during 	Wightman's 	repeated 	demands 	and 	Barney's
repeated 	responses, 	Max Barney became upset by the 	dialogue. 17
He 	abruptly asked, 	"By 	the way, 	Victor, 	how did you 	get 	down 	to
1 7 Max Barney denied that he was 	angry, 	upset, 	or
26

the 	[Soto 	Street] 	office 	today? 	Wightman, 	suspecting that
somehow he was being 	"set 	up" 	since 	that question was 	unrelated
to 	the meeting, 	did not 	respond. 	Barney asked Wightman 	the
same question 	again. 	Again 	there was 	only 	silence 	from
Wightman. 	Then Barney said, 	"Victor, 	I 	asked you, 	how you got
here. 	Did you bring your 	bus 	today?" 	Wightman 	responded, 	"You
know full well how I 	got 	here." 	Barney asked, 	"why aren't you
irritated. 	He 	described 	his 	demeanor 	as 	one 	of 	"frustration."
He 	characterized his 	own 	demeanor 	on December 	3 	as 	initially
showing great patience, 	and growing to one of 	frustration. 	He
testified 	that 	he 	became 	more 	frustrated 	as 	the 	meeting
progressed because 	it 	was 	taking longer 	than 	necessary, 	there
was 	a 	lot 	of work 	to do, 	and Wightman kept 	reiterating his
concerns, 	and was 	not 	satisfied with 	Barney's 	answers. 	In
Barney's 	own words: 	"The 	continuous 	reiteration 	of 	the 	same
questions 	over 	and 	over 	again 	in 	response 	to 	our 	answers 	did
give me 	some 	degree of frustration. 	I 	would say a 	large
degree." 	When asked 	to 	define 	"frustration," 	Barney 	explained
that it was,
. . . 	a 	feeling 	of 	concern 	that 	we 	weren't
communicating, 	concern 	that you 	(Wightman)
were making an 	effort 	to 	change 	my mind
merely by 	repeating 	the 	same questions 	over,
and over, 	and over 	again, 	accompanied with
some, 	as 	I 	said 	— 	very heavy workload, 	and
items 	that 	I 	had to take care of promptly,
and 	respond, 	just a 	relatively minor 	feeling
of discomfort.
In 	comparison 	to 	Barney's characterization of his 	demeanor, 	and
to his 	insistence 	that he was 	courteous 	to Wightman, 	and 	to
Srott's 	testimony 	that 	Barney was 	"calm" 	during 	the 	entire
meeting, 	Kimmett 	and Wightman 	described 	Barney's 	demeanor 	as
angry, 	marked by a 	"flush" 	of the face, 	a strident, 	boisterous
and loud 	tone of voice, 	and an 	"agitated" 	look. 	Based upon 	the
demeanor 	of 	the witnesses and 	their 	entire 	testimony, 	I
discredit 	the 	testimony of 	Barney, 	Srott 	and Jacobs 	insofar 	as
they claim Barney was 	not 	irritated, 	upset 	or 	angry. 	I 	find
that 	Barney 	did 	become 	angry 	toward Wightman.
27

answering my questions?" 	In 	response, 	Wightman said, 	"Because
you're 	trying 	to 	set me up. 	It's 	funny that none 	of 	the
questions 	that 	we've 	asked have been 	answered here 	today, 	but
you 	want 	me 	to 	answer 	this 	question." 	Barney 	finally 	said,
"I'm giving you 	a 	direct 	order. 	Where 	is 	your 	bus?" 	Wightman
refused 	to answer.
At 	that moment, 	Barney asked Ralph Jacobs 	to 	go 	outside 	and
have 	somebody see 	if Wightman's bus was nearby. 	There was 	a
pause 	in 	the meeting. 	In Barney's words 	"the tempo of
discussion had been active, 	and at 	that point 	it was 	less
active. 	It became quiet." 	That, 	in essence, 	adjourned the
meeting. 	The 	only 	comment 	Barney 	recalled 	as 	perhaps 	occurring
after 	he 	ordered Jacobs 	to 	locate 	the 	bus 	was 	Wightman 	stating
that he was 	dissatisfied with 	Barney's 	responses 	to 	the
workers' concerns.
In 	questioning Wightman 	regarding the bus, 	Barney had
potential 	disciplinary action 	in mind. 	During testimony, 	he
initially explained, 	"to 	this 	day 	I 	really don't 	know why 	I
asked him. 	I 	just 	did." 	When 	asked why he 	waited 	for 	about
one hour 	into the meeting to 	ask 	about 	the bus, 	his 	reply was
that he did not 	think 	of 	it at 	that point and that, 	"it 	just
all 	of 	a 	sudden popped 	into my mind 	to 	ask 	him." 	Barney
further 	explained 	that 	it 	had 	occurred 	to him 	that 	Wightman
had, 	in the past, 	been guilty of misusing his bus. 	AS will be
explained 	further 	below, 	Barney testified 	that 	it was 	a
28

violation 	of 	District 	policy 	for 	Wightman 	to 	have 	used his 	bus
to attend 	the meeting on 	December 	3.
Upon 	leaving Max 	Barney's 	office, 	Wightman 	went 	to 	complete
his 	afternoon 	run,18 and headed 	for 	nearby Multnomah 	Street
where he had parked 	the bus. 	He 	shortly discovered 	that 	the
bus was 	gone. 	Pursuant to procedure, 	he 	called the 	dispatch
office 	to 	report his 	findings, 	and requested a spare bus 	so
that 	he 	could make his 	afternoon 	run. 	The 	dispatcher 	refused
to 	let 	him use 	a 	spare 	bus 	and 	told him he would have 	to 	talk
to 	max 	Barney 	about 	that. 	Wightman 	asked 	the 	dispatcher 	how he
was 	supposed 	to 	get 	to his parking 	location 	or 	home without 	the
bus. 	The 	dispatcher's 	reply was 	that he would have 	to 	take
that 	up with 	Barney.19
What 	actually happened 	after 	Jacobs 	left 	the 	meeting 	in
search 	of 	the bus was 	an unusual 	set 	of events. 	Jacobs asked
one 	of 	the bus 	inspectors 	to 	locate 	the bus. 	The 	inspector
found 	it 	nearby and 	reported 	it 	to Jacobs. 	The 	inspector 	left
and 	another 	inspector 	was 	sent 	supposedly 	to 	return 	the bus 	to
18The 	testimony varied as 	to 	the 	length 	of 	the 	meeting.
Wightman estimated 	it at about 	45 minutes, 	while others
estimated 	its 	length as 	1 hour 	and 	15 	minutes to 	1 	hour 	and
30 minutes.
19It 	is 	unclear 	what 	occurred 	after 	this 	conversation.
Apparently Wightman went back 	to 	the 	Soto Street 	office. 	He
did 	testify that 	Barney and Jacobs 	were 	no 	longer 	there.
Wightman 	contends 	that 	the 	District's 	spoken words 	and 	its
conduct, 	at and after 	the meeting, 	constitute the unlawful
threat.
29

the 	nearest parking lot, 	at 	the 	District's 	Nutrition Center.
Jacobs 	returned 	to 	the 	meeting as 	Kimmett 	and Wightman were
leaving. 	Jacobs 	did 	not 	mention 	anything 	regarding 	the bus
while 	Kimmett 	and Wightman were 	present.
Wightman's 	bus 	was 	taken by 	the 	inspector 	to 	the 	Business
Center 	garage. 	However, 	the 	inspector 	reported 	to Jacobs 	that
the bus was 	in bad 	condition, 	and asked whether 	he would 	like
to 	see 	it.20 Thereafter, 	a bus 	inspection was 	performed not
only by 	Noreen 	Flavin, 	the 	inspector 	who 	drove 	the bus 	to 	the
garage, 	but also by Kirk Hunter, 	who was 	a 	driver/trainer 	who
teaches bus 	inspection.
Although bus 	inspections 	are 	routine, 	and 	drivers
themselves 	perform 	them daily, 	this 	bus 	drew unwarranted
attention. 	Instead 	of 	conducting 	the 	inspection while 	at 	the
garage, 	the bus was 	taken 	to 	the 	Soto Street office and parked
next 	to James 	Srott's 	window. 	Despite 	the 	fact 	that James
Srott 	does 	not 	normally watch bus 	inspections, 	and 	testified
that 	it was 	not 	a 	normal 	occurrence 	to have 	an 	inspection 	done
at 	the Soto Street office, 	the spectacle caught his 	attention
and he 	left his 	office 	to 	observe.
Similarly, 	Ralph Jacobs, 	who testified that this was a 	"one
time situation" 	and that 	it was not a normal 	thing, 	walked
20 The "bad condition" 	of 	the 	bus 	- 	torn 	seats, 	dirty
exterior 	- 	is 	open 	to question 	inasmuch 	as 	Wightman 	had
reported 	the 	torn 	seats 	and 	other 	pre-existing 	conditions 	to
maintenance 	long 	before 	December 	3.
30

downstairs, 	boarded the bus, 	and observed the 	inspection. 	Yet,
he 	also 	testified 	that 	the 	transportation 	department 	was 	"very
busy at 	the time."
Max 	Barney, 	who 	testified 	that 	he was 	in 	charge of 	some
1900 bus 	routes, 	some 75 area supervisors as well as other
administrators, 	and over 	a 	thousand employees, 	also 	found his
attention 	drawn 	to 	the 	scene. 	When 	he 	saw 	the bus 	at 	Soto
Street, 	he 	asked 	somebody 	"what 	was 	going on 	and 	they 	indicated
it was Mr. 	Wightman's bus and they're 	inspecting it." 	So,
Barney decided to go take a 	look 	for himself. 	He, 	too, 	boarded
the 	bus 	and 	observed 	the 	inspection. 	Neither 	Barney nor 	Srott
could 	explain why 	the 	bus 	was 	brought 	to 	Soto 	Street 	instead 	of
having 	the 	"routine" 	inspection 	done 	at 	the garage.
An 	additional 	unusual 	occurrence 	transpired 	before 	the 	end
of 	that December 	3 	workday. 	Barney testified that, 	under
circumstances when a 	driver's bus 	is 	removed by 	inspectors, 	it
is 	the 	driver's 	duty 	to 	call 	dispatch 	to get 	a 	replacement 	bus
until 	the 	assigned 	bus 	is 	returned 	to 	the 	driver. 	In 	this
case, 	Barney ordered 	that 	another 	driver 	cover 	Wightman's
afternoon 	route. 	Barney 	testified 	that 	Wightman 	should 	have
called 	dispatch 	to 	get 	a 	spare bus 	if he wanted 	to 	complete 	the
run, 	yet there is no evidence, 	including from Barney, 	to
indicate 	that 	Wightman 	did not 	do exactly 	this.
The end result was 	that Wightman was 	left without a bus 	to
complete his workday, 	without 	transportation 	to 	get back 	to his
31

parking location 	so 	that he 	could 	go home, 	and without personal
belongings 	that 	he had left 	on 	the bus.
Yet, 	no 	disciplinary action was pending at 	the 	time.
Indeed, 	Wightman 	called Barney later 	that afternoon 	at 	about
3:00 	p.m. 	to 	inquire as 	to what 	they had 	done and 	to 	tell 	them
about 	the 	personal belongings he had left 	on 	the bus. 	Barney
referred his 	call 	to Jacobs 	after 	informing Wightman 	that his
afternoon 	route 	had been 	covered 	and 	that 	arrangements 	were
being made 	to make his belongings 	available, 	Wightman 	then
expressed 	to 	Jacobs 	his 	anger 	at 	their 	having 	taken 	his 	"means
of making a 	livelihood 	[bus], 	leaving him without
transportation, 	and 	taking his 	belongings." 	Jacobs 	explained
that his 	belongings would be 	put 	in 	a 	container 	and be
available 	at 	the 	Business 	Division 	garage. 	According 	to
Wightman, 	Jacobs 	told him that 	if he didn't 	like 	it, 	he 	"could
take us to court."
2. 	Events 	of 	the Week 	Following the December 	3 	Meeting
The 	following 	Monday,21Wightman 	was 	issued 	a 	spare bus
and 	resumed his 	route. 	His 	assigned bus was 	returned 	to him
late 	that week. 	His belongings 	were 	returned either 	Monday or
Tuesday of 	that 	week. 	Upon 	receiving his 	old bus, 	Wightman
noted that none of the alleged 	"defects" had been corrected.22
21December 	3 was 	a Friday.
22 The 	District 	inspectors 	had 	allegedly 	found 	some 	loose
lug 	nuts 	and 	one missing 	lug 	nut 	to 	go 	along with 	a 	faltering
22
32

E. 	Wightman's 	Discharge
On about January 12, 	1983, 	Wightman was 	called into James
Srott's 	office where 	the 	latter 	made verbal 	accusations,
including, 	inter 	alia, 	that Wightman had violated the
District's 	bus 	policy by using 	the District's 	bus 	to 	attend 	the
meeting of 	December 	3, 	that 	safety violations, 	including loose
and missing 	lug nuts 	had been 	found 	on 	the bus, 	and 	that 	there
were other 	defects 	discovered 	on 	that bus. 	Wightman 	refused 	to
answer 	questions 	without 	receiving 	a written 	list 	of 	the
accusations 	against 	him. 	The 	short 	meeting ended when 	Srott
refused 	to 	provide 	the 	written 	charges 	and Wightman 	refused 	to
answer 	the verbal 	accusations.
In 	February Wightman 	was 	served 	with 	formal 	written 	charges
and 	a 	recommendation 	for 	his 	termination. 	Included 	in 	the
accusations 	was 	the 	allegation 	that 	he 	had 	improperly 	used 	his
bus 	on December 	3 	and 	the 	allegations 	regarding 	the 	faulty
condition of his bus.
Wightman was 	discharged effective April 	19, 	1983. 	He had a
hearing before 	a 	District 	Personnel 	Commission 	hearing 	officer,
Edward White, 	after 	Wightman appealed his 	discharge. 	In 	his
decision 	issued 	on July 6, 	1983, 	White 	concluded 	that Wightman
dome 	light, 	a missing band-aid 	in the 	first aid kit, 	the torn
seats, 	and some missing weather 	stripping. 	The 	loose and
missing 	lug nuts 	situation 	was 	"corrected." 	Wightman 	denies
that 	the 	lug nuts were 	loose 	or 	missing.
33

should be 	reinstated, 	but 	that 	he 	be 	suspended without 	pay 	for
four months from April 19, 	1983.
After 	reviewing White's 	proposed decision, 	the 	full
Commission wrote 	a 	letter 	to Wightman 	indicating 	that 	some 	of
the 	tapes 	of 	the 	hearing were 	not 	available 	because parts 	of
the 	hearing had 	inadvertently not been 	recorded. 	They
explained 	that 	they had two 	choices: 	(1) 	to adopt White's
recommendation; 	or 	(2) 	in the absence of transcripts, 	to order
a 	new hearing on 	the 	original 	charges. 	The 	Commission 	ordered
a 	new hearing before 	another 	hearing officer. 	The 	new hearing
was 	held 	in 	October 	1983. 	The hearing officer 	sustained 	the
District's 	action 	to 	dismiss 	Wightman. 	The 	Personnel
Commission 	then 	adopted 	that 	proposed 	decision.
F. 	The 	Bus 	Usage Policy
As 	noted above, 	the Respondent 	took 	the position 	that
Wightman 	violated 	the District's 	policy, 	prohibiting 	the 	use 	of
District vehicles 	for 	personal 	business, 	when he 	used his bus
without 	authorization 	to attend 	the 	December 	3, 	1982 	meeting.
According 	to 	its 	theory, 	this was 	the 	justification 	Barney had
for 	asking Wightman how he 	arrived at 	the 	meeting.
No 	other 	area 	of 	testimony 	shows 	a 	more 	striking 	contrast
between Respondent 	and 	Charging 	Party's 	version 	of 	the 	events
than 	that 	regarding what 	the 	actual 	District 	policy and
practice was. 	Victoria Vargas, 	a bus 	driver with 	the District
since 	1976, 	and a 	former 	steward for 	Local 	99, 	testified 	that
34

she 	always 	used her 	bus 	to 	go 	to 	the 	Soto 	Street 	office when
she had a 	grievance 	to attend 	to. 	She added 	that 	drivers were
never 	told not 	to 	use 	them 	for 	that 	purpose, 	and 	that 	no 	one
used 	their 	personal 	vehicles 	to 	go 	to 	the office 	for 	those
reasons. 	She 	gave 	examples 	where 	she 	had 	attended meetings
(using her 	bus) 	at 	Soto street without being asked about her
use of 	the bus, 	nor had she ever heard of anyone, 	except for
Wightman, 	being reprimanded 	for 	using 	the bus 	to attend
meetings 	with 	supervisors 	at 	Soto 	Street.
Truman 	Ellison, 	also 	a bus 	driver 	and a 	union 	steward,
testified that he 	too, 	has 	used his bus 	to 	go to 	Soto 	Street
without being asked 	to 	attend by 	District 	officials. 	He
supported his 	statement with 	examples 	(e.g., 	to 	discuss 	the
amount 	of 	pay drivers were 	getting 	for 	security bus 	watching,
etc.). 	Further, 	he added that, 	on those occasions when he went
to 	Soto 	Street with his bus, 	his 	supervisor 	was 	aware because
he 	would 	tell 	him. 	When 	asked 	whether 	he 	requested 	permission
or 	approval 	on any of 	these 	instances, 	he 	replied 	in 	the
negative, 	and 	that he was 	telling his 	supervisor 	where he 	was
going and why. 	He would not, 	however, 	use his bus to go to the
meetings 	if 	it was not on his way to his parking location.
But, 	he maintained, 	the nature of bus driving was such 	that, 	in
order 	to go 	to 	Soto 	Street 	for 	meetings, 	it pretty much
required 	drivers 	to use 	their 	buses.
Ellison has 	seen Vickie Vargas 	also 	use her 	bus 	to 	travel
35

to 	Soto 	Street 	for 	grievances. 	He 	corroborated Vargas1
testimony 	that Wightman was 	the 	only one he had 	ever 	known 	to
be 	reprimanded 	(December 	3) 	for 	using his 	bus 	to 	go 	to 	the
office 	to meet with 	supervisors.
John 	Scates, 	a District driver 	since 1979, 	testified that
many drivers 	use 	their 	buses 	to 	travel 	back 	and 	forth 	to 	the
Soto 	street 	office 	either 	to process 	grievances 	or 	to 	discuss
working 	conditions. 	This 	occurred whether 	or 	not 	the 	drivers
were 	Union 	stewards. 	Scates 	himself has made 	such 	use 	of his
bus 	and 	knows 	of 	other 	drivers 	who 	so 	use 	them without 	being
given 	express 	permission. 	He 	has 	not 	seen 	any 	individuals 	use
their 	private 	automobiles 	to 	go 	to 	the 	office 	for 	such
reasons. 	Like Vargas 	and Ellison, 	Scates had heard of 	no
driver 	getting 	reprimanded 	for 	using buses 	to 	go 	to 	Soto 	Street
except 	for 	Wightman. 	He 	stated 	that 	the 	District 	practice was
for 	drivers 	to use 	their 	buses 	to 	go to 	Soto Street.
Shiral 	Nelson, 	a District bus 	driver 	for 	seven years,
testified 	that 	she 	sometimes 	used her 	bus 	to 	attend meetings 	at
Soto Street, 	and has seen others 	do 	the 	same even when 	it was
not 	official 	Union business. 	She has 	not 	gone with 	her
supervisors' express permission, 	and 	testified that 	it was a
standard practice 	to 	use 	school 	buses 	to 	attend 	meetings 	at 	the
Soto 	Street 	office.
Bobbie Stuggars, another 	District 	bus 	driver, 	corroborated
the 	above 	testimony. 	She 	added 	that 	she was 	unaware 	of 	anyone
36

ever 	being 	reprimanded 	for 	taking a 	bus 	to 	the 	Soto 	Street
office.
Victor 	Wightman 	testified 	that 	he 	had 	used his 	bus 	to 	go 	to
Soto 	Street 	in 	similar 	circumstances 	in 	the past 	to meet with
Barney. 	Yet, 	prior 	to December 	3, 	1982, 	Barney 	(and everyone
else) 	had 	never 	objected, 	nor 	had he been 	told 	that 	he 	could
not 	use his bus 	in 	that manner, 	Indeed, 	during 	the 	October
meeting where 	the 	identical 	issues were 	discussed, 	no one,
including Barney, 	asked him about his 	usage 	of 	the bus 	or
indicated 	that 	there 	was 	a problem with 	it.23 Wightman 	added
that other 	drivers made similar 	use 	of 	their 	buses, 	and that 	it
was 	standard practice 	to 	so 	use 	them.
In 	contrast, 	District 	supervisors 	testified 	that 	such 	usage
was, 	under 	certain circumstances, 	a violation of policy.
Barney 	explained 	that 	the 	District 	had 	a 	continuing problem
with 	drivers 	using 	its vehicles 	for 	personal business, 	like
running personal 	errands. 	Therefore, 	a bus 	driver 	handbook 	is
distributed 	to 	drivers 	explaining 	the 	policy, 	and a 	memorandum
delineating the policy 	is 	periodically disseminated, 	especially
when 	incidents 	of 	improper 	use of vehicles 	increase. 	Regarding
use of buses 	to go to Soto street, 	Barney explained that, 	if
23In his 	testimony, 	Barney 	acknowledged 	that 	he 	did 	not
ask 	Wightman about his 	bus 	in 	the October 	meeting. 	Jules
Kimmett 	also 	corroborated 	the 	testimony 	that 	the 	first 	time
Wightman 	had 	ever 	been 	asked 	about his 	bus 	in 	connection with
meetings with 	supervisors was 	December 	3, 	1982.
23
37

the 	meeting 	is 	on official 	District business, 	and 	if 	the
meeting 	is 	initiated by the 	District 	official, 	then 	the 	driver
may use the bus 	to attend. 	If 	a District official 	tells a
driver 	to 	come 	to a meeting, 	the driver 	is allowed 	to 	use his
bus.
Violation 	of 	said 	policy 	may 	result 	in 	discipline 	according
to Barney. 	He explained 	that, 	in response to being 	in 	the
public spotlight 	in 	1978, 	and 	in view of 	the pressure of
desegregation, 	the department had 	since 	"re-doubled" 	its
efforts 	to make 	sure bus 	drivers 	were 	not 	"ripping 	citizens
off." 	Barney 	acknowledged 	that 	he 	had 	never 	had 	any 	driver
disciplined 	for 	taking his 	bus 	to 	the 	Soto 	Street 	office 	for
purposes 	of 	discussing working conditions with him 	(Barney).
He has, 	however, 	disciplined drivers 	for 	such 	things as 	using
their bus to go to locations, 	like 	"McDonald's" Restaurants.
Major 	Patterson, 	a 	supervisor, 	testified 	that any time 	that
a 	driver 	is 	not asked, 	or 	told by administration, 	to 	go to the
Soto 	Street office, 	it would be 	a violation of District policy
to take 	the bus 	anywhere 	other 	than 	its parking 	location, 	the
appropriate school, 	or 	the supervisor's office. 	Although he
testified 	that 	he 	enforced 	the 	policy 	uniformly 	for 	drivers
under 	him, 	he 	had 	never 	disciplined 	any driver 	for 	using a 	bus
to go to Soto Street because, 	he explained, 	it has never
happened in his area. 	Wightman's 	is 	the only case where he has
38

ever 	heard 	that 	it happened.24
Ralph Jacobs 	testified 	that 	if 	administration 	asks 	a 	driver
to come to Soto Street, 	he 	is usually directed to use his bus,
but 	if 	the driver 	comes without being asked, 	it 	is 	not District
business, 	and 	it 	is not permissible to use his own bus. 	When
asked whether 	it 	was 	District business 	for 	a 	driver 	to 	go 	to
Soto 	Street 	for 	the 	purpose 	of 	complaining about his 	working
conditions, 	and comes on his own initiative, 	he answered: 	"It's
not 	district business 	unless he makes 	an appointment, 	and 	then
it becomes 	District 	business."
25 Jacobs 	did 	not 	recall 	any
individual 	ever 	being discharged 	for 	using a bus 	to 	go 	to 	Soto
Street.
Although James 	Srott 	testified that, 	in 	the one 	and
one-half 	year 	period 	he had been 	employed 	by 	the 	Transportation
Branch, 	approximately 10 	drivers had been 	disciplined 	for
violation of 	the bus policy, 	he was unaware of whether 	any of
those 	ten had been 	disciplined 	for 	using a bus 	to 	go 	to 	Soto
Street. 	Indeed, 	of 	the 	individuals 	named 	in 	a 	document
(Respondent's 	Exhibit 	"D") 	who had been 	disciplined, 	none had
24 Patterson 	was 	not 	Wightman's 	supervisor.
25 Later 	in his 	testimony, 	when 	asked by 	the 	undersigned,
Jacobs 	modified his 	testimony. 	He 	stated 	that 	if he 	had 	talked
to 	an 	employee 	about 	the 	subject 	of working conditions before,
and he 	(Jacobs) 	told 	the employee 	to 	come 	in, 	he would make
arrangements 	on 	how 	the 	driver 	was 	to 	arrive. 	It 	would be
considered District business 	if he 	(Jacobs) 	made 	the
appointment. 	In other words, 	it would not be considered
District business 	unless he 	(Jacobs) 	initiated 	the 	appointment.
25
39

been 	disciplined 	in 	connection with 	using a bus 	to 	go 	to 	Soto
Street.
In spite 	of 	Max 	Barney's 	testimony 	regarding 	continuous
problems 	with 	drivers 	making 	improper 	use 	of 	District 	vehicles,
the 	driver's 	handbook 	and 	the 	policy 	memoranda 	issued 	at 	least
yearly 	(Respondent's 	Exhibits A, 	B and E 	(p. 	2)) 	fail 	to even
mention 	anything 	regarding 	using 	District 	vehicles 	to 	attend
meetings 	for 	the 	driver's 	benefit 	at 	District offices.
The pertinent 	section 	of 	the 	driver's 	handbook 	reads 	as
follows:
OPERATING RULES 	AND 	DISTRICT 	POLICY
1. 	Using Bus 	for 	Personal 	Business 	(Memo
#25 	- 	1-10-80).
District 	buses 	are 	to 	be 	used 	only 	for
assigned 	district 	related 	transportation 	and
driver 	training, 	not 	for 	shopping 	trips,
going 	to 	the 	doctor 	or 	dentist 	and or 	any
other 	personal errands. 	Supervisors may not
authorize 	drivers 	to 	use buses 	for 	personal
use.
Anyone 	using a bus 	for 	personal 	business
will 	be 	disciplined.26
A bus 	driver 	memorandum 	distributed 	in 	1979 	reads 	as
follows:
MEMORANDUM NO. 	41
TO: 	ALL DISTRICT 	BUS 	DRIVERS
26 Another 	section 	of 	the 	manual 	deals 	with 	appropriate
parking 	locations 	for 	buses. 	There 	is 	no allegation 	regarding
Wightman's 	improper 	parking of his 	bus 	on 	December 	3 	on 	a
public street, however.
40

FROM: 	Ralph 	A. 	Jacobs
Deputy 	Director 	of 	Transportation
SUBJECT: 	USING 	BUS 	FOR PERSONAL 	BUSINESS
School 	buses 	are 	not 	to be 	used for 	personal 	business.
We 	have 	received 	several 	complaints 	from private
citizens 	that District 	bus 	drivers 	are 	using buses 	for
personal business 	such 	as 	shopping trips, 	going to 	the
doctor 	or 	dentist 	and various 	other 	personal 	errands.
District 	buses 	are 	to 	be 	used 	only 	for 	assigned
District 	related 	transportation 	and 	driver 	training.
Anyone 	using a 	bus 	for 	personal 	business 	will be
disciplined 	as 	required.27
It 	is 	noteworthy that 	no 	District bus 	drivers were 	called
to 	corroborate 	the 	District's 	alleged policy 	regarding 	use 	of
buses 	to 	go 	to 	the 	Soto Street 	office. 	There 	is 	no evidence of
any writing 	to 	corroborate 	the 	District's 	version 	of 	its 	policy
regarding use 	of buses 	to meet 	with 	supervisors 	over
work-related problems. 	And, 	in 	light of 	the 	claim that 	there
is a 	constant problem with 	improper 	use 	of buses, 	the 	District
is 	unable 	to 	explain why 	it has 	failed 	to 	avail 	itself 	of 	the
opportunity, 	over 	the years, 	to spell out 	that policy in
writing.
There were 	other 	inconsistencies 	in 	the 	testimony of
District 	administrators 	that 	lead 	me 	to 	discredit 	their 	version
of the policy. 	For 	example, 	according to Ralph Jacobs'
version, 	Wightman would not have been 	in violation 	of 	the
27 Identical memoranda, 	dated January 10, 	1980, 	were
distributed 	in 	1980 	and 	1981.
41

policy 	if 	Barney's 	secretary had 	initiated 	the 	scheduling of
the meeting of December 	3. 	Yet, 	Barney testified 	that he had
intended 	to 	schedule 	the 	meeting anyway, 	but 	found 	that
Wightman had 	already gone 	ahead and 	set 	it. 	Wightman 	saved him
the 	trouble of 	doing what he 	had already 	intended 	to 	do. 	It
was 	through 	a 	fortuity that 	Wightman 	and not 	Jacobs 	initiated
the meeting. 	It 	is 	illogical 	that a violation of an unwritten
and 	unenforced 	policy would 	turn 	on 	such 	a 	fortuitous 	event.
Additionally, 	I 	note 	the 	fact 	that 	supervisors 	testified 	that
it was 	usual 	practice 	for 	them to arrange with 	drivers 	the mode
of 	transportation when 	meetings 	were 	scheduled 	to 	occur 	at 	Soto
Street. 	Yet, 	no such 	arrangements were made or 	attempted with
respect 	to Wightman. 	Similarly, 	none of 	the drivers or
administrators 	ever 	recall 	any 	other 	instance 	prior 	to
December 	3, 	1982, 	where a 	driver 	was 	questioned about how s/he
arrived at 	a 	meeting 	at 	Soto 	Street 	or 	any 	other 	District
office, 	Indeed, 	Wightman was 	never 	asked 	the question 	under
similar 	conditions 	in 	the past.
Based upon the above, 	the demeanor 	of 	the witnesses, 	and
the 	entire 	testimony and evidence, 	I 	discredit 	the 	testimony of
District 	administrators 	insofar 	as 	it purports 	to 	establish
that 	it was 	against 	District policy 	for 	drivers 	to 	use 	District
vehicles 	to 	travel 	to 	Soto 	Street 	on 	their 	own 	initiative 	in
order 	to meet with 	supervisory 	and/or 	managerial 	personnel.
Even 	if 	such 	a policy existed 	in 	some 	form, 	I 	would 	find 	that
42

it was 	not previously enforced 	under 	fact 	situations 	similar 	to
those of December 	3, 	1982.
III. 	DISCUSSION
The Complaint 	in 	this 	case 	alleges 	that 	the 	threat 	made
against 	Wightman 	on 	December 	3, 	1982 	constitutes 	a 	violation 	of
Government 	Code section 3543.5(a). 	The PERB has held that, 	in
unfair 	practice 	cases 	involving 	an 	allegation 	of 	interference
with 	protected rights, 	a violation will be 	found where the
employer's 	acts 	interfere 	or 	tend 	to 	interfere 	with 	the
exercise 	of protected 	rights 	and 	the 	employer 	is 	unable 	to
justify 	its 	actions 	by proving 	operational 	necessity.
Sacramento 	City 	Unified 	School 	District 	(1985) 	PERB 	Decision
No. 	492 	[alleged 	threats, 	citing Carlsbad Unified 	School
District 	(1979) 	PERB Decision No. 	89; 	Novato Unified School
District 	(1982) 	PERB Decision No. 	210]. 	The Carlsbad test for
3543.5(a) 	violations 	is as follows:
2. 	Where 	the 	charging party establishes
that 	the employer's 	conduct 	tends 	to or 	does
result 	in 	some harm to 	employee 	rights
granted 	under 	the 	EERA, 	a prima 	facie 	case
shall 	be 	deemed 	to 	exist;
3. 	Where the harm to 	the employees' 	rights
is slight, 	and the employer 	offers
justification 	based 	on 	operational
necessity, 	the competing interest of 	the
employer 	and 	the 	rights 	of 	the 	employees
will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
4. 	Where 	the harm 	is 	inherently destructive
of employee rights, 	the employer's 	conduct
will 	be 	excused 	only on 	proof 	that 	it 	was
43

occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course 	of 	action was 	available;
5. 	Irrespective of the 	foregoing, 	a charge
will be 	sustained where 	it 	is 	shown 	that 	the
employer 	would not have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an 	unlawful
motivation, 	purpose 	or 	intent.28
A. 	Protected Activity
Employee 	attempts 	to 	peacefully 	compel 	their 	employer 	to
adhere 	to 	a 	collective bargaining agreement 	are 	protected
concerted activities within 	the 	meaning of 	the 	EERA. 	Baldwin
Park 	Unified School District 	(1982) 	PERB Decision No. 	221 	at
page 11; 	see also, 	e.g., 	NLRB v. 	City Disposal Systems, 	Inc.
(1984) 	460 U.S. 	1050 	[115 LRRM 3193]. 	Such conduct would be
protected 	even 	if 	Wightman's 	interpretation 	of 	the 	contract 	was
erroneous 	or 	even 	if his 	complaints 	lacked merit. 	Baldwin
Park, supra, at pages 11-12.
Similarly, 	criticism of 	supervisors 	and 	activity 	directed
against 	their 	performance have been 	found 	to be 	protected.
State of California, 	Department of Transportation 	(1982) 	PERB
Decision No. 	257-S. 	Concerted activities 	to protest working
conditions are protected unless they are unlawful, 	violent, 	in
28 It is noted that, in an interference case, it is
unnecessary 	for 	the 	charging party 	to 	show 	that 	respondent
acted with 	an 	unlawful 	motivation 	to 	establish 	a 	violation.
Regents 	of 	the 	University of 	California 	(1983) 	PERB Decision
No. 	305-H. 	Indeed, 	the respondent's intent 	in such 	cases 	is
irrelevant. Sacramento 	City 	Unified 	School 	District, 	supra,
page 30.
44

breach 	of 	contract or 	indefensible. 	NLRB v. 	Washington
Aluminum Co. 	(1962) 	370 U.S. 	9, p. 	17 	[50 LRRM 2235].
The 	fact 	that Wightman had 	not 	followed 	the 	letter 	of 	the
collective 	bargaining agreement 	regarding 	grievances 	does 	not,
as Respondent 	seems 	to argue, 	remove his 	conduct 	from its
protected 	status. 	It 	is 	granted 	that Wightman never 	filed a
written 	grievance 	over 	the 	enumerated 	issues 	discussed 	on
December 	3. 	At 	least 	two 	of 	those 	(backpay and 	specific
involuntary transfers), 	were beyond 	the 	time 	limits 	set 	forth
in 	the 	contract 	for 	filing a grievance. 	His 	attempt 	to
represent 	Lee 	Hunter 	was 	arguably 	unprotected 	because 	Hunter
was 	not 	a 	District 	employee 	and 	also 	could not 	assert 	any
rights 	under 	any 	collective 	bargaining 	agreement.
However, 	the 	general 	issue 	of 	seniority 	(separate 	from
Wightman's 	claim 	that 	he 	had 	been 	wrongfully placed 	on 	the
list) 	was a continuing problem for most drivers, 	was not
amenable 	to 	resolution by 	individuals 	attempting 	to 	"clarify"
isolated lists 	on a 	case-by-case basis, 	and was 	an attack 	on
management's 	calculation 	of 	seniority 	and 	its 	application 	of
disputed 	contract 	language. 	The 	contract's 	grievance 	article
contained 	a 	clause 	that 	allowed 	for 	informal 	resolution 	of
disputes 	in an 	attempt 	to 	resolve 	them prior 	to 	the 	filing of
formal 	grievances. 	This 	is 	exactly what Wightman was
attempting 	to 	do 	at 	the October 	and 	December 	meetings.
The 	lack 	of 	drinking water 	at 	a bus 	parking 	site was 	also 	a
45

continuing problem of 	common 	concern 	to 	other 	drivers. 	The
problem was 	not 	addressed 	in 	the 	contract.
Moreover, 	apart 	from Wightman's 	personal 	concerns 	regarding
transfers, 	he was 	attempting to 	remedy what he believed 	to be
an 	arbitrary policy 	of 	involuntary 	transfers 	as 	applied 	to 	all
drivers. 	Contesting 	the District's 	interpretation 	of 	contract
language, 	he was 	concerned 	that 	the 	contract was 	being abused.
In 	addition, 	he 	attempted 	to apprise 	Barney of 	related
problems, 	such 	as 	worker 	morale 	and 	employee 	dissatisfaction
resulting 	from perceived 	arbitrary practices 	of 	supervisors 	and
administrators.
In 	essence, 	some of 	the 	claims Wightman was making in 	the
October 	and 	December 	meetings 	concerned 	the 	subject 	of 	the
District's 	adherence 	to 	the 	spirit 	of 	its 	collective bargaining
agreement 	with 	Local 	99, 	and some of 	them concerned working
conditions not 	necessarily addressed 	in 	that 	contract. 	Many of
the 	concerns 	raised by Wightman, 	though 	not 	inherently 	grounded
on 	the 	contract, 	involved 	criticism of 	supervisors 	and 	their
use 	or 	abuse 	of 	authority 	in 	implementing 	employment
procedures. 	As cited, 	supra, 	both 	types of activities are
protected. 	The 	fact 	that Wightman 	referred 	to all 	the 	subjects
he 	raised 	in his charge as 	"grievances" 	is not 	fatal 	to his
case, 	and 	determining whether 	his 	activity was 	protected 	by use
of 	a 	narrow definition based 	solely on 	contract 	language 	is
unwarranted. 	The 	Complaint 	in 	this 	case 	cannot be 	read 	so
46

narrowly. 	Atlas 	Minerals, 	Division 	of 	Atlas Corporation 	(1981)
256 NLRB No. 	22.
Neither 	can 	it 	be 	argued 	that 	Wightman's 	activity 	is
unprotected because 	he was 	not 	acting on behalf 	of 	other
employees or 	that he was acting 	in 	derogation of his 	Union. 	I
discredit 	Barney's 	testimony 	that 	Wightman 	never 	stated 	that 	he
was 	acting on 	behalf 	of 	other 	employees. 	Indeed, 	Ralph 	Jacobs'
testimony 	that 	Wightman 	discussed 	the 	fact 	that 	he 	had 	lodged 	a
complaint 	on behalf of 	30 	drivers who 	lost 	their 	places 	on 	the
seniority 	list 	indicates 	otherwise. 	The 	testimony 	regarding
the water 	problem showed 	that Jacobs' 	response 	to Wightman's
concerns 	regarding 	the water 	was 	to have 	the 	supervisors 	tell
the 	drivers 	(not Wightman himself) 	to 	get 	their 	water 	at 	the
business 	garage. 	Donald 	Roper's 	unrefuted 	testimony 	indicated
that Wightman 	indeed was 	working with 	other 	drivers 	to
substantiate the complaints. 	Further, 	although 	there was a
dispute 	about whether 	Wightman 	was 	a 	union 	steward 	on 	the 	date
of the meetings, 	he acted de facto as a steward, 	and other
employees 	believed 	and acted 	upon 	the 	representation 	that 	he
was a 	steward, 	acting on behalf of 	the Union.
There 	is 	no 	reliable 	evidence 	suggesting that Wightman's
activity was 	in 	derogation of, 	or 	contrary to any position
taken by 	the Union, 	even 	if 	it 	is assumed that he was 	not an
official 	Union 	steward.29 In 	the 	absence 	of 	such 	evidence,
2 9 In 	fact, 	Frank Loya, 	a recognized Union official, 	had
attempted 	to 	resolve some 	of 	the 	same 	issues.
47

his 	conduct retains 	its protected 	status. 	Roadway Express,
Inc. (1979) 	241 NLRB No. 	63; 	see also Colony Printing &
Labelling, 	Inc. 	(1980) 	249 NLRB 223, 	at page 224.
B. 	Unlawful 	Threats
Unlawful 	interference 	may take 	the 	form of 	threatening or
coercive 	statements. 	In 	Antelope 	Valley 	Community 	College
District 	(1979) 	PERB Decision No. 	97, 	the Board recognized that
an employer's 	communication, 	although noncoercive on 	its 	face,
may become coercive, 	and thus unlawful, 	when seen as part of a
total 	course 	of 	conduct 	in which 	the employer 	engaged. 	Id.,
page 	21, 	citing NLRB v. 	Virginia 	Electric and Power Co. 	(1941)
314 U.S. 	469 	[9 LRRM 405]. 	Therefore, 	statements made by an
employer 	are 	to be 	viewed 	in 	their 	overall 	context 	to 	determine
if 	they have 	a 	coercive meaning. 	Sacramento City Unified
School District, 	supra, at page 25, 	citing John Swett Unified
School District 	(1981) 	PERB Decision No. 	188.
The 	fact 	that 	an 	employer 	statement 	and/or 	accompanying
conduct may be 	ambiguous 	or 	innocuous 	on 	its 	face 	does 	not mean
it 	is 	lawful, 	a view supported by private 	sector 	precedent. 	In
Murcel Manufacturing Corp. 	(1977) 	231 NLRB No. 	80, 	an employee
wore a 	"Vote Yes" 	(pro-union) 	button on 	the morning of a
pending 	representation 	election. 	The 	employee's 	supervisor
approached her, 	said 	"Good morning," 	stood by her 	work 	station,
looked at her, 	took 	a pad 	from his pocket 	after 	asking 	for 	her
name, 	wrote something on 	it, 	and 	left. 	The Board upheld the
48

finding 	and 	the 	following 	rationale 	of 	the 	administrative 	law
judge:
Since 	Kotkes 	[supervisor] 	neither 	told 	the
employee why he had asked her 	name or what
he wrote on 	his 	pad, 	the 	incident would have
the 	normal 	and 	foreseeable 	effect 	of
creating a 	sense 	of 	disquiet 	or 	unease 	in 	an
employee. 	Whether 	true or 	not, 	the normal
inference 	for 	Colson 	[employee] 	from the
incident 	would be 	that 	Kotkes 	was 	making 	a
note 	of 	the 	fact 	that 	employee 	Colson was
wearing a 	"Vote Yes" 	button on 	the morning
of the election. 	. 	. 	The mystery or
unexplained 	nature 	of 	the 	incident 	and 	its
purpose 	would 	add 	to 	its 	disquieting effect
and 	carried with 	it 	an 	implied 	possibility
of reprisal. 	(Emphasis added.)
Similarly, 	in international Medication Systems, 	Ltd. 	(1980) 	247
NLRB No. 	190, 	the NLRB found a violation when, 	during a
conversation 	regarding an employee's 	support of a 	union, 	an
agent of 	the 	employer 	asked 	the employee: 	"What 	if you 	get put
in 	jail?" 	In 	finding 	that 	the question 	constituted 	an 	unlawful
threat 	of 	reprisal, 	the Board again went beyond 	the 	actual
wording 	and 	considered 	the 	context 	in 	which 	the 	question 	was
asked.
In Norton Concrete Company 	(1980) 	249 NLRB No. 	172, 	the
NLRB 	found 	that 	the 	following 	employer 	question/statement 	made
to an employee constituted an unlawful 	threat: 	"Well, 	what
else 	can you 	do besides haul 	concrete?" 	The 	facts 	indicated
that 	the 	employee 	to whom the question was 	directed had 	just
informed his 	superiors 	that he was 	going to 	try 	to 	get 	a 	union
into 	the 	company.
49

The question, 	"don't you 	think 	you 	have 	done 	enough by
going 	down 	to Akron?" 	was 	found 	to be an 	unlawful 	veiled
warning in Roadway Express, Inc. (1979) 	241 NLRB No. 	63. 	In
that 	case 	the question was 	asked by an 	employee's 	supervisor 	in
response 	to 	that 	employee's 	complaint 	about 	defective
equipment. 	About 	two weeks prior 	to 	the question, 	the employee
had been 	involved 	in 	a 	peaceful 	demonstration at 	Akron 	to
protest working 	conditions 	at 	the 	company.
As 	the above cases indicate, 	it 	is not necessary that a
statement 	carry 	any 	express 	words 	referring 	to 	possible 	adverse
action 	in 	order 	for 	the 	statement 	to 	constitute 	unlawful
interference with 	employee 	rights. 	The 	cases 	also 	indicate
that 	the 	statement 	(or 	question) 	must have 	some 	connection with
protected activity. 	The 	fact 	that 	the 	employer 	may have 	a
regulation 	or 	policy 	giving 	it 	the 	purported 	right 	to 	make 	the
statement 	(or question) 	does not, however, 	necessarily detract
from its 	unlawful 	nature.
For example, 	in Dependable Lists, 	Inc. 	(1979) 	239 NLRB
1304, 	an employee, 	knowingly active in his union, 	received an
unprecedented 	written 	warning 	threatening 	discharge 	if 	he
continued 	to 	report 	late 	for work. 	It was 	conceded 	that 	the
employee had been 	frequently late 	for 	work. 	However, 	other
employees 	were 	also 	frequently 	late 	and 	no 	other 	employee had
ever 	been 	given 	such 	a written 	reprimand. 	The 	Board 	found a
section 	8(a)(l) 	violation by that 	threatening warning, 	noting
50

that 	the 	conduct 	(tardiness) 	had been 	condoned by 	respondent
for 	a 	long time.
Applying these principles 	to 	the 	case at hand, 	I 	am mindful
of 	the 	fact 	that Max 	Barney's questions 	to Wightman on
December 	3 	and his 	subsequent 	actions 	regarding his 	bus 	did 	not
contain an explicit 	threat of reprisal. 	However, 	they did
contain a 	threat of 	reprisal 	viewed 	in 	the 	entire 	context. 	Max
Barney 	clearly had 	in mind, 	when he 	asked 	the questions,
potential 	disciplinary action, 	evidenced by his 	testimony 	that
it 	occurred 	to 	him that 	Wightman 	had previously been
disciplined 	for 	improper 	use 	of his 	bus. 	Wightman had 	indeed
been 	disciplined before 	for 	alleged misuse of his 	bus 	in 	a
different 	type 	of 	situation 	(parking bus 	near 	Pierce college 	to
attend 	classes 	during his 	noon break). 	Wightman had 	also been
the 	target 	of 	previous attempted 	discharges, 	two 	of which 	he
had succeeded 	in defeating. 	He was a visible, 	confrontational,
and 	unrelenting 	advocate 	of 	employee 	rights 	and 	frequently
opposed 	the 	administration on 	a variety of 	issues. 	Barney's
questions 	regarding 	the bus 	came 	"out 	of 	the blue," 	and were
totally unrelated 	to 	the 	issues 	discussed 	at 	the meeting. 	They
also 	occurred 	immediately 	following 	an 	antagonistic 	verbal
exchange 	during which 	Wightman 	indicated 	that 	he 	would 	not
relent 	in pursuing his 	list 	of 	"grievances."
In the context of 	these, 	and other 	facts detailed, 	supra,
Barney's questions would 	create 	a 	sense of 	disquiet 	or 	unease
51

in an employee. 	And, 	viewed in conjunction with 	the events
immediately 	following 	the 	meeting 	and 	regardless 	of 	whether
Wightman 	actually 	felt 	threatened, 	a 	reasonable person would
feel 	that 	Barney was 	attempting 	to 	prevent 	him 	from 	further
pursuing 	the 	"grievances" 	by putting an 	abrupt halt 	to 	the
session 	in 	using 	an 	implied 	threat 	of 	discipline 	and 	preventing
him 	from 	finishing 	his 	workday.
Barney 	could 	simply have 	rejected Wightman's 	demands, 	and
terminated 	the meeting, 	and 	then 	ordered Wightman 	to 	return 	to
work. 	Instead, 	he 	chose 	to 	end 	the meeting by 	resorting 	to 	a
series 	of 	questions 	that 	carried 	implied 	threats 	of 	reprisals.
C. 	Business 	Necessity
Consistent with 	the above 	findings 	of 	fact, 	the 	implied
threats 	in 	Max Barney's 	inquiry of December 	3 	are 	not 	justified
by 	any 	legitimate 	business 	necessity. 	Wightman 	was 	not 	using
his bus to run personal errands, 	going on shopping trips, 	or
even utilizing it 	to attend classes, 	uses 	that 	the written
District policy 	concededly prohibits. 	He 	was 	being 	accused 	of
violating a non-existent policy, 	or 	at 	the very least, 	a policy
that 	had never 	been 	enforced, 	and 	for 	activity 	that 	bus 	drivers
knew had been 	historically 	condoned. 	It 	is 	ironic 	that 	Barney
would 	threaten 	to 	discipline Wightman 	for 	conduct 	that 	even 	the
administrators 	would have 	deemed 	perfectly proper 	if 	Barney had
done what 	he 	should have 	done 	anyway 	- 	initiate 	the 	scheduling
of 	the 	meeting of 	December 	3.
52

Neither 	can 	it 	be 	seriously 	contended 	that 	a 	connection
between 	the 	implied 	threats 	and Wightman's 	protected 	activity
is 	lacking. 	Aside 	from the 	facts already noted above, 	James
Srott, 	whom Wightman had 	criticized at 	the December 	3 	meeting,
testified 	that 	it was 	only after 	the 	December 	3 	meeting 	that he
initiated 	the 	investigation 	that 	led 	to Wightman's 	discharge 	in
April 	1983. 	He 	explained that, 	if Wightman had never 	shown up
at 	that meeting, 	he never 	would have 	initiated 	disciplinary
proceedings.30
Disciplinary 	proceedings 	would 	not 	have 	been 	initiated,
despite 	the 	alleged 	fact 	that 	there was 	already a 	disciplinary
document 	in Wightman's 	personnel 	file 	from Mary 	Smith, 	his
immediate 	supervisor, 	who accused Wightman 	of misusing his 	bus
long before 	December 	3. 	Curiously, 	no 	disciplinary action had
been taken pursuant to that document.31
IV. 	CONCLUSION
It 	is 	therefore 	determined 	that 	Wightman was 	engaged 	in
3 0 A 	claim 	that 	the 	District 	was 	merely 	reacting 	to
Wightman's 	conduct 	during 	the meeting 	in making 	the 	implied
threats does not 	legally excuse such 	conduct. 	It 	is 	just as
unlawful 	to 	discipline or 	threaten 	to discipline an employee 	in
connection with 	his 	conduct 	during 	a 	grievance. 	United 	States
Postal Service 	(1980) 	250 NLRB No. 	156; 	Illinois Bell Telephone
Co. 	(1982) 	259 NLRB No. 167.
31 The 	document was 	not 	offered 	into 	evidence. 	Wightman
was 	totally unaware 	of 	it, 	and 	the only evidence about 	it was
Srott's memory of what 	it 	contained. 	I 	cite 	it here only to
show 	the 	unconvincing nature 	of 	the 	District's 	rationale 	for
threatening Wightman 	and 	carrying 	out 	the 	threat.
31
53
30

protected 	activity on 	December 	3, 	1982, 	and 	that 	Barney's
questions 	regarding 	the bus, 	viewed 	in 	the entire 	context,
constituted 	an 	implied 	threat. 	It 	is 	further 	found 	that 	the
threat 	was 	made 	in 	connection 	with 	Wightman's 	persistence 	in
engaging 	in 	protected 	activities, 	and 	that 	the 	District 	did 	not
have 	a 	legitimate 	business 	justification 	for 	making 	the
threat. 	By 	its 	conduct, 	the 	District 	interfered with
Wightman's 	right 	to 	engage 	in 	activities 	protected by 	the 	EERA
in violation of Government Code section 3543.5(a).
V. 	REMEDY
Victor 	Wightman 	requested 	reinstatement, 	backpay, 	and
punitive 	damages 	as 	a 	remedy 	for 	the 	District's 	unfair
practices. 	He 	was 	repeatedly 	advised 	by 	the 	undersigned 	that
he 	would 	be 	given 	the 	opportunity 	to 	argue 	the 	propriety 	of
such 	remedies 	and 	that 	he 	should 	provide 	legal 	precedent 	or
authority 	in 	support 	of such 	relief. 	The 	only relevant 	legal
authority 	cited was 	Government 	Code 	section 	3541.5(c) 	which
states 	that 	the 	Board has 	the 	power 	to 	order 	an 	offending party
to 	take such 	affirmative action, 	including, 	but 	not 	limited to,
reinstatement 	with 	or 	without 	backpay 	as 	will 	effectuate 	the
policies 	of 	the Act.
During 	the 	hearing, 	Jules 	Kimmett 	and Victor 	Wightman
attempted 	to 	litigate 	the 	merits 	of 	all 	the 	allegations
consolidated 	in 	PERB Decision 	No. 	473, 	irrespective 	of whether
the 	Board 	had 	dismissed 	them. 	Accordingly, 	they 	sought 	to
54

litigate 	the 	termination 	of 	Wightman 	and 	further 	allegations 	of
threats 	occurring 	in 	January and 	February of 	1983. 	They were
allowed 	to 	put 	on 	some 	evidence 	regarding 	these 	areas 	only 	for
the 	purpose 	of 	giving a 	context 	or 	background 	to 	show 	that what
happened 	on 	December 	3 	(words 	and 	conduct) 	constituted an
implied 	threat, 	and 	to show that 	the 	threat was 	carried 	out.
They were 	cautioned 	that 	the 	undersigned 	did 	not 	have 	the 	issue
of 	the 	discharge before 	him 	inasmuch 	as 	the 	Complaint 	did 	not
allege 	anything other 	than 	the 	threat 	and 	that 	the 	Board had
dismissed 	the 	allegations 	of 	an 	unlawful 	termination 	in
Decision 	Number 	473 	and 	in 	another 	case 	cited above 	in 	the
procedural history.32
Wightman 	did 	not 	appeal 	the 	Board's 	dismissal 	of
allegations 	relating to the 	termination. 	He may not 	revive
them by way of 	this 	proceeding 	inasmuch 	as 	his 	avenue was
reconsideration before PERB or 	a writ 	of 	review 	to 	the 	Courts
of 	Appeal. 	Charging 	Party was 	informed 	that 	the 	undersigned
had no 	jurisdiction 	to order 	a 	remedy for 	an allegation 	of 	a
discharge 	that 	had been 	dismissed 	by 	the 	Board. 	The 	District
put 	on no defense 	testimony at all. 	Although 	it 	is
understandable 	that 	Wightman 	would 	feel 	that 	the 	remedy below
is 	inadequate 	since 	the threat was 	such 	a 	small 	"fragment" 	in a
32 Apparently 	the 	allegations 	regarding 	the 	termination
were 	dismissed because 	of 	procedural 	deficiencies 	in 	the
charges 	and 	Charging Party's 	refusal 	to 	amend 	them with 	facts
necessary 	to 	establish 	a 	prima 	facie 	case.
32
55

series 	of 	events he believes 	to be 	unlawful, 	he 	failed 	to
preserve 	his 	right 	to pursue 	that 	remedy 	in 	properly 	filing his
charges and, 	later, 	in 	failing to seek 	review through
designated channels. 	Therefore, 	I must conclude that 	I 	am
without authority to award backpay, 	reinstatement, 	or 	punitive
damages as a remedy.33
The 	appropriate 	remedy 	for 	an 	interference 	case 	is 	a 	cease
and 	desist 	order 	requiring 	the 	District 	to post 	a 	notice
incorporating the terms of the order. 	See, 	e.g., 	Sacramento
City Unified School District 	(1985) 	PERB Decision 	No. 	492.
Posting of 	such 	a 	notice will 	advise 	employees 	that 	the
District has 	acted 	in an unlawful manner, 	is 	being required to
cease 	and 	desist 	from this 	activity, 	and will 	comply with 	the
order. 	It 	effectuates 	the purposes 	of 	the 	EERA 	that 	employees
be 	informed 	of 	the 	resolution 	of 	the 	controversy alleged 	in 	the
Complaint 	and 	the 	District's 	readiness 	to 	comply with 	the
ordered 	remedy. 	Davis 	Unified 	School 	District 	(1980)
PERB Decision No. 	116; 	Placerville 	Union School District 	(1978)
PERB Decision No. 	69.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
33It 	is 	unnecessary, 	therefore, 	to 	discuss 	the propriety
of awarding punitive 	damages 	for 	a violation of EERA. 	It 	is
recognized 	that 	private 	sector 	labor 	precedent 	indicates
punitive 	damages 	are 	generally 	inappropriate 	awards 	for
violations 	of 	collective bargaining 	statutes.
33
56
33

and 	the entire record in 	this 	case, 	it 	is 	found that 	the Los
Angeles 	Unified 	School 	District 	violated 	subsection 	3543.5(a)
of 	the 	Educational 	Employment Relations Act. 	pursuant 	to
subsection 3541.5(c) 	of the Government Code, 	it 	is hereby
ORDERED that 	the District, 	its 	governing board and 	its
representatives, shall:
A. 	CEASE AND 	DESIST 	FROM:
(1) 	Interfering with 	the 	protected 	rights 	of 	employees
to pursue 	grievances 	and 	seek 	to 	improve 	their 	working
conditions 	by making 	threats 	to 	employees 	who 	choose 	to 	engage
in such activities.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
(1) 	Within 	ten 	10 	workdays 	from service of 	the 	final
decision 	in 	this matter, 	post at all 	school 	sites and all 	other
work 	locations 	where 	notices 	to 	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 	the 	notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or 	covered by any other material.
(2) 	Within 	twenty 	(20) 	workdays 	from service of a
57
•

final 	decision 	in 	this matter, 	notify the 	Los Angeles Regional
Director 	of 	the Public 	Employment Relations 	Board, 	in writing,
of 	the 	steps 	the 	employer 	has 	taken 	to 	comply with 	the 	terms 	of
this 	Order. 	Continue 	to 	report 	in writing to 	the Regional
Director 	periodically 	thereafter 	as 	directed. 	All 	reports 	to
the 	Regional 	Director 	shall 	be 	served 	concurrently on 	the
Charging 	Party herein.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become final on August 15, 	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
Employment 	Relations 	Board 	itself 	at 	the headquarters 	office 	in
Sacramento before 	the 	close of business 	(5:00 	p.m.) 	on
August 	15, 	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
58

service 	shall 	be 	filed with 	the 	Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part 	III, 	section 32300 and 32305•
MANUEL M. MELGOZA
Dated: 	July 26, 1985 	Administrative Law Judge
59