Hacienda La Puente Unified School District * * * SUPERSEDED by amendment to EERA section 3543.5, subdivision (a) Stats. 1989, Ch. 313 (PERB 0685E)

SUPERCEDED by amendment to EERA section 3543.5,
subdivision (a) Stats. 1989, Ch. 313
STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JEFF D. 	PAIGE,
Charging 	Party,
v.
HACIENDA LA PUENTE UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case 	No. 	LA-CE-2267
PERB 	Decision 	No. 	685
June 24, 	1988
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Appearances; 	Charles R. 	Gustafson, 	Attorney, 	California
Teachers Association, 	for Jeff D. 	Paige; 	Wagner, 	Sisneros &
Wagner by 	T. 	A. 	Wagner 	for 	Hacienda 	La 	Puente 	Unified 	School
District.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case arose out of an allegation
by Jeff 	D. 	Paige 	(Paige) 	that 	the 	Hacienda La 	Puente 	Unified
School 	District 	(District) 	violated 	section 3543.5(a) 	of 	the
,
Educational 	Employment 	Relations 	Act 	(EERA or 	Act)1 when 	it
refused 	to grant him a leave of 	absence, 	constructively
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein are 	to the Government Code. 	Section 3543.5 	reads, 	in
relevant part:
It 	shall be unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten to 	impose 	reprisals
on employees, 	to discriminate 	or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
(Emphasis 	added.)
_____ )

discharged him, 	and 	refused 	to 	rehire him. 	Paige 	alleges 	that
these 	adverse 	actions 	were 	taken 	in 	retaliation 	against him
because 	he 	exercised 	rights 	protected 	under 	the 	EERA,
specifically, 	the 	filing of a grievance. 	The matter was heard
by a 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
administrative 	law 	judge 	(ALJ). 	The ALJ 	ruled 	in 	favor of 	the
charging party, 	and 	the 	District 	filed 	the 	instant 	exceptions.
On 	review, 	we 	now dismiss 	the 	complaint 	for 	the 	reasons 	set
forth 	below.
THE FACTS
Paige 	was 	employed 	full-time 	as 	a 	Sergeant by 	the
California Highway Patrol 	(Highway Patrol 	or CHP). 	He 	also
held 	a part-time 	"temporary" 	position with 	the 	District 	as 	an
instructor 	in 	the Adult 	School. 	Paige 	taught 	courses 	to people
who had been 	convicted 	of 	driving while 	intoxicated 	and 	were
ordered by a 	judge 	to 	attend 	court 	program 	classes. 	The Court
Programs 	were 	given year 	round, 	with classes 	given several
times 	a year, 	during the 	fall, 	spring, 	and summer.
Paige's 	immediate 	supervisor 	was 	Madelyn 	Henderson,
Director 	of 	Court 	Programs. 	Henderson was 	a member of 	Paige's
bargaining unit. 	While 	Henderson had 	no 	authority 	to hire 	or
fire 	anyone, 	she 	did 	screen 	requests 	for 	overtime 	compensation
or 	leaves before passing 	the 	requests 	on 	to 	either 	the
personnel 	office 	or 	to Adult 	School 	Director 	Don 	Roth.
In early 1984, 	Paige 	filed a grievance, 	on behalf of
himself 	and 	other 	employees, 	alleging 	that 	they were 	owed pay
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for 	their 	attendance 	at 	a workshop held 	outside 	the 	regular
work 	week. 	The 	grievance 	also 	recited 	a 	list of 	complaints
against 	Henderson, 	alleging 	that 	she 	acted 	in hostile 	and
demeaning ways 	in her 	treatment 	of her 	co-workers 	at 	workshops
and 	staff meetings. 	After 	the 	grievance was 	filed, 	the
employees 	received 	the pay 	for 	attending 	the 	workshop. 	It 	is
undisputed 	that, 	after 	the 	complaints 	about her 	were 	made by
Paige, 	Henderson's 	relationship with him deteriorated, 	although,
since 	Henderson had 	no actual 	authority 	to 	grant 	a 	leave 	to
Paige 	or 	to hire 	Paige when he 	returned 	to 	the 	District, 	this
animosity has 	no bearing 	on 	this 	case.
The 	events 	that 	gave 	rise 	to the 	charge 	in 	this 	case began
in spring 1985. 	Paige, 	in his 	capacity as 	a 	full-time Highway
Patrol 	Officer, 	received 	an offer 	of 	promotion 	to Lieutenant 	in
late February 1985. 	Acceptance of the 	job, 	however, 	would mean
a 	temporary 	(two 	to 	three months) 	assignment 	and 	transfer 	out
of 	the area, 	beginning April 	1, 	1985. 	Paige would 	then be 	able
to 	transfer back 	to 	the 	Hacienda La 	Puente 	area 	on 	July 	1.
Paige's 	acceptance 	of 	the promotion 	and 	transfer 	out 	of 	the
area 	prevented 	him 	from 	completing his 	spring 	teaching
assignment 	with 	the 	District.
On 	February 	26, 	Paige 	advised 	Henderson 	that he 	accepted
the 	promotion 	and would be 	gone 	for 	three months 	as 	of 	April 	1,
and 	that he was 	requesting a leave 	of 	absence. 	Henderson 	told
3

Paige 	that 	the 	District 	would be 	replacing him. 	In 	the belief
that 	other 	employees 	had been 	granted 	leaves 	of 	absence 	under
similar 	circumstances, 	Paige 	completed a 	request 	for 	a
two-month 	leave 	of 	absence 	and 	directed 	it 	to Roth. 	In 	the
request, 	Paige advised Roth that due, 	to his promotion 	in the
Highway 	Patrol, 	Paige 	would have 	to 	leave 	the 	area 	and 	relocate
temporarily and 	that he 	was 	requesting a 	leave 	of 	absence 	with
permission 	to 	return 	to his 	teaching 	assignment 	at 	the
conclusion of 	the 	leave. 	Paige 	took 	the 	request 	to Roth's
office but was 	unable 	to discuss 	it with 	Roth 	as 	Roth was 	in
conference 	and unavailable. 	Paige 	spoke 	with Assistant 	School
Director 	Richard 	Fraley who 	suggested 	that 	Paige 	should 	seek 	an
informal 	"inactive 	status" 	and 	that 	Fraley would 	talk 	to Roth
about 	it. 	Neither 	party disputes 	that 	the 	only person who
could 	grant 	the 	leave was 	Roth, 	and 	that 	Fraley's 	comments 	were
only 	speculation 	as 	to what 	Roth might 	do 	with 	the 	request.
While 	waiting 	for 	a 	response 	from 	Roth 	to 	the 	leave
request, 	Paige 	received 	a memorandum 	dated March 	6 	from
Henderson, 	asking 	that he 	complete 	and 	submit 	a 	resignation
form. 	Paige 	did 	not 	complete 	the 	form. 	Paige 	responded 	to
Henderson's 	note 	with one of his 	own, 	indicating he wished 	to
take 	a 	leave 	of 	absence 	rather 	than 	resign. 	Roth 	then 	visited
Paige 	at 	the 	Court 	Programs 	Office 	and 	advised 	Paige 	that 	Roth
could 	not 	let 	Paige 	have 	an 	informal 	absence 	of 	more 	than 	two
weeks.
On March 	14, 	Paige 	received 	Roth's 	letter, 	congratulating
4
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Paige 	on his 	promotion but 	reiterating:
Unfortunately, 	a leave of absence 	is not
allowed 	for 	temporary employees. 	It will be
necessary 	to 	replace 	you 	with 	someone 	else.
However, 	should you 	return to this 	area,
please 	check 	with me 	to see 	if 	we have 	any
openings.
On March 	25, 	Paige 	responded 	that he wanted 	Roth 	to
reconsider 	the decision, 	and 	that he 	(Paige) 	had 	recruited
other 	teachers 	to cover his 	classes 	for 	the 	time he 	would be
gone. 	Paige 	indicated he had 	arranged 	for 	these 	substitutes
because 	Fraley 	had 	suggested 	Paige 	could 	be 	placed 	on 	"inactive
non-pay" 	status.2 Paige 	had 	nine 	individuals 	sign 	a 	request
to cover his hours, 	and 	inserted a 	statement 	that by 	signing,
each 	individual 	was 	requesting 	a written 	response 	from 	the
District. 	On pages 	two and 	three of 	the 	request, 	Paige
asserted 	his 	superiority 	in 	education, 	experience 	and 	knowledge
over 	the 	individual 	who had been chosen as his 	replacement, 	and
stated 	that 	the 	selection 	of 	his 	replacement 	"appears 	to be
'questionable'? 	(The 	individual 	is 	the 	son of 	a boyfriend 	of
the 	Program Staff Advisor.)" 	In addition, 	Paige 	raised his
role 	in 	the 	1984 pay grievance 	and 	emphasized 	that 	Henderson
had been 	uncommunicative 	with him 	since 	the 	grievance, 	and
appeared 	to want 	to 	get 	rid 	of him.^ 	Paige 	also welcomed
2The 	testimony and 	the 	exhibits, 	however, 	show that while
Fraley discussed 	"inactive" 	status 	with 	Paige, 	all parties
involved 	knew 	that 	Roth 	was 	the 	only 	one 	who 	could 	grant 	a
leave of 	absence. 	Fraley did not promise 	Paige a 	leave, 	and
Paige 	understood 	that 	any 	comments 	made 	by 	Fraley were 	subject
to Roth's approval.
3paige 	recounted his 	fear 	that 	Henderson was 	trying 	to
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"any 	consideration 	the 	School 	District 	Superintendent 	and/or
the 	Director 	of 	the 	Personnel 	Commission might 	offer," 	and 	sent
copies 	of 	the 	request 	to 	the 	latter persons 	plus 	other persons
including 	the 	exclusive 	representative.
On March 29, 	Roth, 	in a written response to Paige, 	stated:
There 	is 	no 	authority under 	which 	a 	leave
can be 	granted 	to other 	than 	a 	permanent
certificated 	staff 	member.
The 	authority of 	a 	site 	administrator 	to
allow 	a 	"necessary absence" 	or 	"inactive
status" has been 	limited 	to two weeks.
Failure 	to 	report 	to work 	is 	cause 	for
termination 	and 	would 	lessen 	your 	likelihood
of being 	rehired; 	a simple 	resignation due
to 	other 	obligations 	would 	not.
Paige 	then 	sent 	Roth 	on April 	6 	a 	conditional 	resignation 	in
which 	he 	stated:
[W]ith 	the 	understanding 	that 	I will be
rehired 	and 	reinstated 	to my 	present
position 	. 	. 	. 	upon my return in 60-90 days
. 	. 	. 	I 	submit 	this 	resignation reluctantly
[sic], 	but with the understanding that we
have 	reached 	an 	understanding 	and 	binding
agreement 	in this matter.
Paige 	again 	sent 	copies 	of 	the 	conditional 	resignation 	to
numerous 	persons, 	including 	those 	to whom he had 	sent his 	March
25 	request. 	By this 	time, 	Paige had assumed his 	new position
with 	the 	CHP 	in Monterey.
"get 	rid 	of" 	him 	due 	to 	the prior 	grievance being 	filed by
Paige, 	complaining about 	Henderson's 	actions. 	The 	record has
no 	evidence 	to 	show 	that 	Henderson had 	any 	authority 	to 	fire
Paige. 	Indeed, 	after the grievance was 	filed 	in 1984, 	the
record 	supports 	a 	finding 	that 	Henderson 	took 	no 	retaliatory
action against 	Paige 	in evaluations, 	scheduling, 	or
compensation.
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On April 	15, 	Roth met with Court Programs' 	Instructor
Connie 	Simpson, 	one of 	the nine persons 	who had agreed to cover
Paige's 	hours. 	Roth 	showed 	Simpson 	Paige's 	multi-paged 	request
and 	asked her 	if 	she 	knew what 	she had 	signed. 	Simpson 	told
Roth 	that 	she 	refused 	to 	sign 	the 	request 	until 	Paige had
removed 	some 	paragraphs 	concerning 	Paige's 	relationship 	with
Henderson, 	that 	the 	additional pages 	were not 	attached when 	she
signed 	it, 	and 	that 	she would have 	refused 	to 	sign 	it with 	the
additional 	pages. 	Roth 	was 	visibly 	angry 	and 	told 	Simpson 	that
Paige 	wanted 	to get 	his 	job back but 	that he 	would 	not be
rehired 	after 	circulating 	such 	information 	to 	other 	people 	and
recited 	some 	names 	that had no 	relevance 	to Simpson. 	Roth 	also
stated 	that 	the 	information had been 	sent 	to 	the 	union 	or
association. 	Roth 	indicated a 	"great 	deal 	of 	displeasure" 	that
Paige 	had 	sent 	such 	information 	"to people 	outside 	the
District, 	including the union."
On April 	19, 	Assistant 	Superintendent James Johnson 	sent
Paige 	a 	letter 	rejecting his 	conditional 	resignation 	and
setting 	forth:
The 	District 	does 	not 	accept 	conditional
resignations. 	It must be 	unconditional 	and
without 	limitations.
Johnson 	then 	advised 	Paige 	that 	an 	unconditional 	resignation
was 	needed 	or 	the 	District 	would have 	to 	take 	other 	action
because 	of 	Paige's 	inability 	to 	complete his 	spring
assignment. 	Paige wrote 	a 	letter of 	resignation 	(dated
April 	22, 	1985). 	This letter 	referred to an 	"agreement 	reached
77

between myself 	and 	Mr. 	Donald 	Roth. 	. . . " 	We 	find 	no 	evidence
of 	any agreement between Paige 	and 	Roth, 	and note 	that 	Roth
consistently told 	Paige 	that he would have 	to 	resign, 	as 	no
leaves were available. 	Furthermore, 	this 	letter, 	while
purporting 	to be 	an unconditional 	resignation, 	does 	indicate
Paige 	will pursue 	"any rights 	I might 	otherwise have 	to a
hearing 	in 	this 	matter before 	any 	court 	or board 	formed 	to hear
such 	issues." 	The 	resignation was 	effective April 	22 	and
formally 	accepted by 	the 	board 	of 	education 	on 	May 	9.
Paige 	notified 	the 	District 	in 	early June 	that his 	temporary
assignment 	to 	the 	Monterey Highway 	Patrol 	Office 	would 	end 	in
July and he 	would be 	returning 	to La 	Puente. 	Paige 	asked 	that
his 	employment 	with 	the 	District be 	"reactiveated" 	(sic) 	and
that 	he be 	"reassigned my previous 	duties 	with 	the 	Court
Programs 	Office" 	as of July 1, 	1985. 	The 	letter was directed
to Roth, 	but 	when Paige 	returned 	to 	the 	District 	on July 	1, 	he
learned 	that 	Roth 	would be 	on 	vacation 	until 	August 	1.44
On August 	9, 	Paige 	filed a 	"Complaint/Grievance" with 	the
school 	board 	and 	with 	the 	California 	Department 	of 	Fair
Employment 	and 	Housing, 	alleging 	racial 	and 	sex 	discrimination
and unfair 	labor practices. 	The main 	thrust 	of 	the 	complaint
was 	that 	Henderson had 	treated him 	negatively 	and 	discriminated
against him 	in a 	variety of ways5 because he was 	a Black 	male.
4Paige 	also 	contacted both 	Fraley 	and Henderson, 	each 	of
whom 	confirmed 	that 	personnel 	decisions 	were 	made 	only by 	Roth.
5In 	the 	complaint, 	Paige 	asserted 	that:
8

Paige 	further 	asserted 	that he believed he 	had become 	the
object 	of 	this 	uncommunicative 	attitude 	as 	well 	as 	other
negative 	treatment by Henderson 	for 	over 	a year, 	because 	of 	the
"frustration 	and 	retribution" 	Henderson 	felt 	towards 	Black
males 	resulting 	from 	the 	failure 	of 	Henderson's 	marriage 	to a
Black 	male. 	Paige 	also 	accused 	Roth 	of 	engaging 	in a
conspiracy with 	Henderson 	to deprive him 	of 	his 	constitutional
equal 	protection 	rights.
Roth 	responded 	to Paige 	on 	September 	18, 	informing 	the
latter he had 	not been selected 	as 	a 	teacher 	for 	the 	1985-86
school 	year. 	Through 	the 	union, 	Paige 	filed a grievance 	on
September 	26, 	alleging he had 	not been 	reinstated 	for
retaliatory 	reasons. 	The 	District 	refused 	to process 	the
grievance 	on 	the 	grounds 	that 	Paige 	was 	no 	longer 	an 	employee
of 	the 	District 	and 	was 	therefore 	not 	covered by 	the 	collective
For more 	than a year Ms. 	Henderson-Maine
would 	not 	speak 	to me 	unless 	she 	absolutely
had 	to when passing 	in 	the 	hallways 	or 	about
the 	program office. 	She 	readily spoke 	to
and 	greeted 	Spanish 	surname 	males 	and 	white
males 	working 	in 	the 	Court 	Programs.
Paige 	further 	asserted: 	(1) 	Henderson 	opposed Paige's
attendance 	at 	District-funded 	educational 	seminars 	but 	endorsed
attendance by non-Black 	employees; 	(2) 	a Spanish-surnamed
individual 	was 	allowed 	to be 	away 	from 	the 	Court 	Programs 	for
more 	than 	two weeks, 	but Paige was 	not, 	and that Henderson had
falsely 	reported 	the 	Spanish-surnamed 	employee's 	absences 	as
sick 	leave; 	(3) 	he was 	forced 	to resign his 	employment but 	a
Spanish-surnamed employee was 	not; 	(4) 	a 	Spanish-surnamed
individual 	was 	selected 	to replace him; 	(5) 	no other Black
males 	were ever 	recruited 	to work 	in 	the 	Court 	Programs; 	and
(6) 	non-Black 	males 	were 	given keys 	to 	the 	Court 	Programs
Office, 	but Paige was not.
99

bargaining 	agreement.
The District 	did, 	however, 	permit Assistant 	Superintendent
Tom 	Johnson 	to meet 	informally with 	Paige 	and 	an 	association
representative. 	Johnson 	noted 	that 	he 	had 	merely 	reviewed 	the
paperwork 	in 	the 	case 	to see 	that 	it 	was 	in order 	and had 	not
investigated 	Paige's 	complaint. 	He 	indicated 	that he 	knew 	of
no 	reason 	for 	Paige's 	not being 	rehired, 	but 	suggested 	that 	the
reason 	might 	be 	personality differences 	between 	Paige 	and 	his
supervisors. 	Johnson 	stated 	that 	even 	if he 	investigated
further 	and 	found 	that 	the 	administrators 	or 	supervisors 	had
done 	something wrong, 	he 	still 	would 	not 	order 	reinstatement
for Paige. 	There 	is no evidence, 	however, 	that Johnson
investigated beyond 	this 	meeting.
On October 	23, 	1985, 	Paige 	filed 	an unfair practice 	charge
with 	PERB, 	alleging 	that 	the 	District 	violated 	EERA section
3543.5(a), 	(b), 	and 	(c). 	Subsequent to the withdrawal of
charges 3543.5(b) 	and 	(c), 	a complaint 	issued on March 18, 	1986,
on 	a 	charge 	related 	to alleged 	violations 	of 	section 	3543.5(a).
Following 	the hearing, 	the ALJ 	ruled 	in a proposed 	decision
that 	the 	District 	had 	discriminated 	against 	Paige by denying
his 	request 	for 	a 	leave of 	absence, 	constructively discharging
him, 	and 	refusing 	to 	reinstate him 	to his 	former position. 	The
ALJ 	found 	that 	Paige 	had 	engaged 	in 	protected 	activity by
filing 	the 	1984 	grievance, 	and 	that 	the 	District would not have
taken 	the 	adverse 	actions 	that 	it 	did had 	not 	Paige 	engaged 	in
such 	activity. 	The ALJ 	ordered 	that 	Paige be 	reinstated 	to his
10

former position, 	that he 	receive back 	pay 	from 	the period 	of
his 	resignation 	until 	his 	reinstatement, 	and 	that he be placed
again on 	the 	District's 	list of 	substitutes 	(instructors).
The 	District 	filed 	timely 	exceptions 	to 	the proposed
decision, 	arguing 	that 	charging party 	failed 	to meet his burden
of proof, 	that he was 	not 	entitled 	to any leave of 	absence,
that he 	voluntarily 	resigned, 	and 	that he 	was 	not 	an 	employee
under 	the Act when he 	sought 	reinstatement. 	Further, 	the
District 	argues 	affirmatively 	that 	it 	could 	not have 	accorded
Paige 	different 	treatment 	from 	other 	employees 	(by granting him
a 	leave) 	without 	violating 	the 	Act by 	negotiating 	with 	someone
other 	than 	the 	exclusive 	representative. 	Charging party
refutes 	these 	arguments 	and 	urges 	the 	Board 	to 	affirm 	the
proposed 	decision.
DISCUSSION
Paige 	alleges 	three 	acts by 	the 	District 	that 	were 	adverse
to him: 	(1) 	the denial of the leave; 	(2) 	a constructive
termination;6 and 	(3) 	the 	failure 	to rehire.77
Leave 	of 	Absence
The 	leave 	was 	denied 	on March 	29, 	and 	thus beyond 	the
six-month 	filing date 	required by EERA section 	3541.5(a).
6with 	reference 	to the 	first 	two allegations, 	we 	note
that both matters 	raise a deferral-to-arbitration 	issue. 	The
resolution of 	this 	issue, 	however, 	is not necessary 	inasmuch as
both 	allegations 	were 	untimely.
7These 	are 	the 	formal 	allegations 	made 	in the 	complaint.
11

Independent 	of 	the 	charge being untimely, 	the 	record does 	not
support 	a 	finding 	that 	the 	District 	unlawfully 	denied 	the 	leave
of 	absence 	under 	EERA. 	(Novato Unified 	School 	District 	(1982)
PERB Decision No. 	210.)
Constructive 	Termination
The 	"constructive 	termination," 	i.e., 	the 	resignation,
occurred on April 	22. 	Thus, 	the allegation concerning 	this
action 	too 	is 	untimely. 	While 	the 	first 	resignation was
conditional, 	Paige's 	second 	resignation was 	made with 	full
knowledge 	that 	he 	must 	either 	resign 	unconditionally 	or 	stay
and 	teach his 	classes. 	He chose 	the 	former. 	Thus, 	the 	fact
that 	the 	District 	did 	not 	accept 	the 	resignation until 	May 	9
does 	not bring 	the 	resignation within 	the 	six-month 	limit.
There 	is 	no 	indication 	that 	the 	acceptance by 	the 	school board,
once the 	second, 	clarified, 	resignation was made, 	was anything
other 	than 	a ministerial 	act.
Further, 	the 	foregoing discussion assumes 	that 	the
resignation was 	truly 	a 	"constructive 	termination," 	an
unwarranted 	assumption. 	The 	Board has 	previously 	discussed 	the
standards 	to be 	applied 	to 	a 	situation when a 	resignation 	is
alleged 	to be 	a 	constructive 	termination.8 A 	charging party
must 	show 	two 	elements: 	(1) 	that 	the burden 	imposed upon him
8See 	Marin Community 	College 	District 	(1980) 	PERB
Decision 	No. 	145, 	adopting the 	reasoning of 	the National Labor
Relations 	Board 	in Crystal 	Princeton Refining Co. 	(1976) 	222
NLRB 1068 	[91 LRRM 1302].
12

must 	cause, 	and be 	intended to cause, 	a change 	in his 	working
conditions 	so difficult 	or 	unpleasant 	as 	to 	force 	him 	to
resign; 	and 	(2) 	the burden was 	imposed because of 	the
employee's 	union activities. 	Here, 	we 	find that 	the charging
party 	failed 	to prove 	the 	first 	element.
Paige 	resigned 	not because 	of 	a burdensome 	change 	in
working 	conditions, 	but because of 	an opportunity 	for 	a
promotion 	with 	his 	full-time 	employer. 	Paige had 	indicated 	on
several 	occasions his 	desire 	to be promoted within 	the CHP, 	and
his 	intention 	to accept 	a 	short-time, 	temporary 	transfer 	in
order 	to 	effectuate 	such a promotion. 	No credible 	evidence was
presented 	to 	show 	that 	Paige 	would have 	turned 	down 	the
transfer 	if he 	knew he 	could not 	return 	to his 	14-hour per 	week
position with 	the 	District. 	Therefore, 	we 	reject 	the notion
that 	Paige was 	constructively 	terminated. 	Rather, 	he 	resigned
voluntarily. 	Thus, 	the 	action of 	resigning on April 	22 was 	not
only outside 	our 	six-month statute of 	limitations, 	it was 	not
an 	adverse 	action 	caused by Paige's 	protected 	activity.
Failure 	to Rehire
The 	final 	action 	Paige 	notes 	as 	adverse 	to him 	is 	the
failure 	to 	rehire. 	The 	failure 	to rehire occurred 	on
September 	18, 	and 	thus 	this 	allegation was 	timely. 	The problem
with 	this 	allegation, 	however, 	is 	that 	Paige has no standing to
invoke 	the protection of 	EERA. 	Paige was 	not 	an employee 	at
the 	time he 	reapplied 	for 	employment.
On 	its 	face, 	the protection of 	EERA section 	3543.5(a)
13

applies 	only 	to 	"employees."9 The 	wording 	of 	this 	section
differs 	in 	this 	respect 	from 	the 	National 	Labor 	Relations 	Act
(NLRA) 	section 8(a)(3) 	as well as numerous other state
laws.10 The 	united 	States 	Supreme 	Court 	addressed 	the
importance 	of 	the 	extension of NLRA protection 	to hiring 	in 	the
seminal 	case Phelps 	Dodge v. 	NLRB 	(1941) 	313 	US 177 	[8 LRRM
439]. 	In that case, 	the court noted
Discrimination 	against 	union 	labor 	in 	the
hiring 	of 	men 	is 	a dam 	to 	self-organization
at 	the 	source of 	supply. 	The effect of 	such
discrimination 	is 	not 	confined 	to 	the 	actual
denial 	of 	employment; 	it 	inevitably operates
against 	the 	whole 	idea 	of 	the 	legitimacy of
organization. 	In a word, 	it undermines 	the
principle which, 	as we have seen, 	is
recognized 	as basic 	to 	the 	attainment 	of
industrial peace.
Thus, 	there 	are 	legitimate policy 	reasons behind 	the
inclusion of 	applicants 	for 	employment 	under 	the protection 	of
a 	labor 	statute. 	But 	the 	context 	in which 	the 	Phelps 	Dodge
case 	arose 	differs 	greatly 	from EERA. 	The 	NLRA specifically
9See 	footnote 	1, 	supra.
10	lOsee	see 	Alaska 	PERA section 	23.40.110(3) 	"A public 	employer
may not 	discriminate 	in 	regard 	to hire 	or 	tenure 	of
employment.;" 	Connecticut 	section 3 	(sec. 	5-272) 	"Employers or
their 	representatives 	or 	agents 	are 	prohibited 	from
discriminating 	in 	regard 	to hiring 	or 	tenure 	of 	employment.";
Delaware section 4007, 	chapter 40, 	title 	14 at Delaware Code,
"It 	is 	an unfair 	labor practice 	for 	a public 	school 	employer 	to
encourage 	or 	discourage membership 	in 	any 	employee 	organization
by discrimination 	in 	regard 	to hiring, 	tenure or 	terms 	and
conditions of employment."; 	Florida, 	Florida Stats. 	447.501
"Public 	employers 	are 	prohibited 	from 	encouraging 	or
discouraging 	membership 	in 	any 	employee 	organization by
discrimination 	in regard 	to hiring, 	tenure, 	or other conditions
of 	employment."
14

uses 	the 	terminology 	"hiring" 	in 	the protections 	listed 	in
section 8(a)(3). 	Thus, 	the Supreme Court was not extending the
NLRA, to a group 	that had heretofore not been covered. 	Rather,
it 	was 	securing 	the protection granted by 	statute 	to
applicants.11 The 	EERA 	lacks 	any 	such 	definitive 	protection
for 	applicants. 	The 	extension of 	EERA to applicants 	can only
be 	accomplished by 	the Legislature, 	not 	the 	Board.
Our 	colleague 	notes 	that he 	is 	compelled 	to dissent because
the 	Legislature 	must 	have 	intended 	to 	include 	applicants 	in 	the
protection of 	the statute. 	Such speculation, 	however, 	is not a
basis 	for 	us 	to rewrite 	the 	statute. 	In 	truth, 	the 	following
cannot be 	disputed.
First, 	the omission was 	intentional because 	it occurs 	not
only 	in 	EERA but 	also 	throughout 	the 	entire 	scheme 	of public
employment 	collective bargaining 	statutes, 	including 	the 	Higher
Education 	Employer-Employee 	Relations 	Act 	(HEERA)12 and 	the
Ralph C. 	Dills Act.1 3 Thus, 	the omission of applicants 	is
unlike 	the 	duty of 	fair 	representation, 	a duty 	that was
11Significantly, 	the 	federal 	courts have 	declined 	to 	read
the 	Railway Labor Act 	to 	include 	applicants. 	Only where
Congress 	made 	the 	inclusion of 	applicants 	clear 	do 	the 	courts 	so
construe 	the 	statutes 	to cover hiring. 	(See Nelson v. 	Piedmont
Aviation, 	Inc. 	(4th Cir. 	1984) 	750 F.2d 1234, 	cert. den. 	471 US
1116; 	see 	also Airline 	Pilots Association 	v. 	United Air Lines
(7th Cir. 	1986) 	802 F.2d 886, 	cert den. 	107 S.Ct. 	1605.)
12HEERA 	is 	codified 	at 	Government 	Code 	section 	3560 	et
seq.
13Formerly 	known as 	SEERA, 	the 	Ralph C. 	Dills Act 	is
codified 	at 	Government 	Code 	section 	3512 	et 	seq.
15

explicitly 	enacted 	in 	EERA 	and 	HEERA but 	inadvertently
prescribed 	in 	the 	Dills 	Act 	only 	for 	employees 	who 	are 	not
members 	of 	the 	exclusive 	representative 	organization. 	In 	the
latter 	case, 	we 	could 	reasonably argue 	that 	the 	Legislature
omitted 	by mistake 	a portion 	of 	the 	law 	covering 	all 	employees
(both 	members 	and 	non-members 	of 	the 	exclusive 	representative
organization), 	coverage 	that was 	included 	in sister-statutes,
and was 	implied 	from 	the 	inclusion of 	other, 	related 	clauses 	in
the 	statute.14
Here, 	since 	every other 	state 	and 	federal 	law of 	a 	similar
nature 	is 	explicit 	in 	its 	inclusion 	of 	applicants,15 we 	can
only presume 	that 	the 	Legislature's 	failure 	explicitly 	to
include 	applicants 	under 	all 	three 	statutes 	was 	intentional.
Moreover, 	the 	Legislature 	specifically did 	include
protection 	in hiring under 	at 	least 	one 	labor 	statute. 	The
Agricultural 	Labor 	Relations 	Act 	of 	1975 	(the 	same 	year 	EERA
was 	enacted), 	prescribes 	"It 	shall be an unfair 	labor
14See 	CSEA 	(Norgard) 	(1984) 	PERB Decision No. 	451-S,
wherein 	the 	duty of 	fair 	representation was 	implied, 	not
express, 	under 	the Dills Act. 	See also California Correctional
Peace 	Officers Association 	(Pacillas) 	(1987) 	PERB Decision No.
657-S.
15We are 	unpersuaded 	by 	the 	statutes 	listed 	by 	the
dissent. 	In no 	state has 	a 	legislature 	excluded all hirees 	but
the 	administrative 	agency 	then 	extended 	coverage 	to 	that 	group
based 	on 	the 	implication 	that 	the 	Legislature meant 	to 	include
them. 	In 	nearly every example mentioned by the 	dissent, 	at
least 	one 	public 	sector 	law 	in 	each 	jurisdiction has 	explicitly
included 	applicants, 	thereby permitting 	an 	argument 	that 	a
governing body may have 	unintentionally 	omitted 	coverage 	of
applicants 	under 	the 	other 	statutes 	in 	that 	jurisdiction.
Here, 	none of 	the 	statutes 	involving public 	employees 	expressly
includes 	applicants.
16

practice 	for 	an 	agricultural 	employer 	to 	. . . 	by 	discrimination
in 	regards 	to 	the hiring 	or 	tenure 	of 	employment 	or 	any 	term or
condition of 	employment, 	to encourage 	or 	discourage membership
in any labor 	organization." 	(Labor Code 	sec. 	1153.) 	(Emphasis
added.) 	The 	fact 	that 	this 	comprehensive 	labor 	relations
statute, 	using 	language 	quite different 	from 	the public
employment 	statutes 	administered by 	PERB, 	specifically 	included
protection 	for 	applicants 	in addition 	to employees 	leads 	to 	the
obvious 	conclusion 	that 	the 	Legislature 	knew how 	to 	include
applicants 	but 	meant 	to 	exclude 	them 	from 	EERA.16 Further,
when 	the 	Legislature has 	desired 	to 	cover both 	applicants 	and
employees 	in employment practice 	statutes, 	it has 	done 	so by
using specific 	language 	such as, 	"employee or applicant,"
"employee or prospective 	employee," 	or 	"to refuse 	to hire, 	or
to discharge, 	or 	to discriminate 	in terms of employment," 	etc.
(See Labor Code, 	secs. 431, 	432, 	432.2, 	432.5, 	432.7, 	450, 	921,
and 922; 	Gov. 	Code, 	secs. 	12940, 	12941, 	12943, 	19701, 	19702,
and 	19702.2.)
Second, 	the process 	of 	statutory 	construction 	is 	used only
when a 	term 	is 	ambiguous. 	As 	noted by 	the 	California 	Supreme
Court 	in West 	Covina Hospital 	v. 	Superior 	Court 	(1986) 	41 	Cal.3d
1 6 We 	note 	that 	the 	State 	Supreme 	Court 	in Pacific 	Legal
Foundation 	v. 	Brown 	(1981) 	29 	Cal.3d 	168 	recognized 	the ability
of 	the 	Legislature 	to withhold 	certain power 	from 	PERB. 	That
case, 	construing 	the constitutionality of 	the Dills Act, 	speaks
only 	in 	terms 	of 	employees 	(never 	applicants) 	and notes 	that
the 	State 	Personnel 	Board 	retained 	authority 	over 	civil 	service
appointments. 	(Id. 	at 185.)
17

846, 	"We 	give 	effect 	to 	statutes 	according 	to the usual,
ordinary 	input 	of 	the 	language 	employed 	in 	framing 	them. 	When
statutory 	language 	is 	clear 	and 	unambiguous 	there 	is 	no need
for 	construction, 	and courts 	should not 	indulge 	in 	it." 	(Id.
-
at 	850.)
The 	effort 	of 	the 	dissent 	to create 	an 	ambiguity over 	the
meaning of 	the 	word 	employee 	where 	none 	exists 	is 	patently an
act 	of desperation. 	The 	statute 	specifically defines 	employee
as 	one 	"who 	is 	employed by 	[a] 	public 	school 	employer." 	The
use 	of 	the present 	tense 	"is 	employed" 	supports 	the
interpretation 	that 	employee 	was 	not 	meant 	to mean 	someone 	who
"might be," 	"could be," 	"would be," 	or 	"should be" 	employed.
The 	dissent 	can 	cite 	no case where 	a 	statute 	that 	used 	the 	term
17	7	"employee" 	meant 	anything more 	than 	just 	that.1
Indeed, 	the 	Supreme 	Court's 	reluctance 	to construe 	an
unambiguous 	term 	to denote 	anything 	other 	than 	the 	plain
meaning of 	the 	word was 	shown 	in State 	Personnel 	Board 	v. 	Fair
Employment 	and Housing Commission 	(1985) 	39 	Cal.3d 422. 	In
that 	case, 	the 	State 	Personnel 	Board attempted 	to argue 	that
the 	Fair 	Employment 	and Housing Act 	(FEHA) 	was 	inapplicable 	to
the 	state. 	The 	court 	ruled 	that 	the 	exclusion of 	state
employees 	from 	that 	act 	was 	unreasonable 	in 	light 	of 	the
17T	17 he	The 	definitions 	cited by 	the 	dissent 	all 	apply 	to
persons 	who 	form 	an 	employment 	relationship with 	the 	employer.
Here, 	we 	are 	concerned with 	those persons 	who do not 	reach 	that
point, 	i.e., 	they never have any employment 	relationship.
Rather, 	the applicant 	remains 	outside 	the 	status 	of
employer/employee.
18

unambiguous 	language 	of 	the 	statute, 	that 	the 	FEHA applied 	to
employers, 	including 	"the 	state or 	any political 	or 	civil
subdivision 	thereof. 	. . . " 	(Id. 	at 	429.) 	Surely, 	this 	agency
should be 	equally 	committed 	to 	construing 	an 	unambiguous 	term
such 	as 	employee 	in a manner 	that 	is plain and obvious.
The dissent's 	citations 	of 	cases 	are 	inapposite because
they all 	depend 	upon 	an 	initial 	determination 	that 	the 	term 	to
be construed 	is 	ambiguous 	or unclear. 	Such 	is 	not 	the case
here. 	Rather, 	we are more persuaded by Sutherland, 	who cited
this 	noted 	opinion 	in his 	treatise 	on 	statutory 	construction:
The 	courts 	cannot 	venture 	upon 	the 	dangerous
path 	of 	judicial 	legislation 	to 	supply
omissions 	or 	remedy defects 	in matters
committed 	to a 	coordinate branch 	of 	the
government. 	It 	is 	far better 	to wait 	for
the 	necessary 	correction by 	those 	authorized
to make 	them or, 	in 	fact, 	for 	them to remain
unmade, 	however 	desirable 	they may be, 	then
for 	judicial 	tribunals 	to 	transcend 	the 	just
limits 	of 	their 	constitutional 	powers.
(Railroad 	Commission of 	Indiana 	v. 	Grand
Trunk Western Railway Co. 	(1913) 	179 	Ind.
255, 	100 N.E. 852, 	cited in Sutherland, 	2A
Statutory 	Construction 	section 	47.38.)
California has 	long 	recognized 	that 	such 	power 	to 	rewrite
statutes, 	no matter how laudable the goal, 	does 	not belong to
the courts. 	(Anderson v. 	I. M. 	Jameson Corp. 	(1936) 	7 Cal.2d
60; 	People v. 	One 1941 	Buick 8, 	4-Door 	Sedan 	(1944) 	63 Cal.2d
661; 	Richardson v. 	City of San Diego 	(1961)) 	193 	Cal.App.2d
648.) 	In Anderson, 	the court eloquently quoted an early
decision of 	the 	Supreme 	Court 	in stating 	"It 	is 	a 	cardinal 	rule
in 	the 	construction of 	statutes 	that 	the 	intent 	of 	the
19

legislator 	should be 	followed, 	but 	this 	is 	subject 	to 	the
imperative 	and paramount 	rule 	that 	the 	court 	cannot 	depart 	from
the meaning of 	language which 	is 	free 	from ambiguity, 	although
the 	consequence 	would be 	to defeat 	the 	object of 	the 	act."
(7 Cal.2d at 68.) 	(Citations omitted.) 	In Anderson, 	the court
refused 	to 	interpret 	the 	word 	"inference" 	to 	include
"presumption" because 	the 	two words 	were 	not 	synonymous.
Neither 	are 	the words 	"employee" 	and 	"applicant" 	synonymous.
Thus, 	we 	find that, 	laudable as 	the dissent's goals may be,
the 	unambiguous 	nature of 	the 	statute 	in question precludes 	us
from usurping 	the 	duty of 	the Legislature, 	and 	that 	the policy
reasons 	set 	forth 	in 	the 	dissent 	for 	including applicants 	in
EERA are best 	directed 	to 	the 	Legislative branch.
Furthermore, 	we 	are 	unpersuaded by 	the 	dissent's 	view 	that
employers 	will 	begin blatant 	discrimination 	against 	applicants
who 	are pro-union. 	This 	decision does 	not 	abrogate 	the 	right
of 	a union to 	file a charge 	alleging a violation of 	3543.5(b).
Certainly 	any 	overt 	discrimination 	against 	an 	applicant 	would
interfere with 	a union's 	right 	to organize, 	and any remedial
order 	issued by 	this 	Board 	to 	remedy 	such 	interference 	could
direct 	an 	employer 	to hire 	such 	a discriminatee. 	The 	scenarios
envisioned by 	the 	dissent 	need 	never 	happen.18
1 8 We 	note 	that 	the 	unfair 	practice 	charge 	and 	complaint
identify Paige alone as 	the charging party. 	Here, 	the
association was 	never 	a party 	to 	the 	action, 	and violation of
3543.5(b) 	was 	not 	litigated because 	the 	charging party withdrew
that 	allegation 	of his 	charge. 	He 	had no 	standing 	to 	raise 	the
Association's 	rights 	independently.
20

Finally, 	even 	if 	Paige had standing under 	the Act, 	we 	do
not 	concur 	with 	the 	ALJ's 	analysis 	that 	concluded 	the 	District
violated 	EERA. 	Applying 	the 	standards 	used by 	the 	Board 	in
Novato Unified 	School 	District, 	supra, 	we do not 	find 	that 	the
record 	supports 	that 	the 	District 	was 	motivated 	improperly 	in
failing 	to 	rehire 	Paige.
Paige 	asserted 	that prior 	to the 	grievance, 	he had a 	good
relationship with 	Henderson: 	They communicated 	freely, 	talked
frequently, 	and he 	would 	spend 	time 	in her 	office 	talking
before his assignments. 	Following the grievance, 	however,
Paige 	contends 	that 	Henderson became 	distant, 	passed him 	in 	the
hallway without 	speaking, 	and 	communicated 	with him by way 	of
notes. 	The 	record 	shows 	that 	except 	for Henderson's 	failure 	to
communicate with 	Paige, 	there was 	no change 	in Paige's
evaluations, 	assignment, 	or hours, 	and he was hired in the
Courts 	Program 	for 	the 	summer and 	fall 	of 	1984, 	as well 	as 	the
spring of 	1985.
While 	Henderson 	may have been 	ired by 	the 	grievance 	filed
against her, 	she was 	a member of 	the bargaining unit 	not 	a
management employee. 	Furthermore, 	she was 	not 	in any position
to hire 	Paige. 	Roth, 	who had 	the 	authority to hire 	Paige,
allegedly 	made 	one 	comment 	that 	showed he 	could have 	had
anti-union animus. 	But, 	applying 	the 	shifting burden of proof,
the 	District 	proved 	that 	it 	would have 	taken 	the 	same 	course 	of
action despite 	any protected 	activity on 	Paige's 	part. 	The
position 	sought by Paige 	no 	longer 	existed. 	It had been 	filled
21

some 	months before, 	and 	Paige had no vested 	entitlement 	to
return at 	that new 	teacher's 	expense. 	Thus, 	we 	find 	that 	even
if 	Paige had 	standing, 	he did 	not 	show 	that 	the 	District had 	no
legitimate 	reason 	for 	refusing 	to 	employ him.
In 	sum, 	we 	reverse 	the ALJ's 	order 	on 	the grounds 	that 	the
denial 	of 	the 	leave 	and 	constructive 	discharge 	charges 	were
untimely and, 	as 	to the 	failure 	to rehire, 	that Paige was 	not
an 	employee 	at 	the 	time he 	sought 	reemployment.
ORDER
The 	complaint 	against 	the 	Hacienda 	La 	Puenta 	Unified 	School
District 	is hereby DISMISSED 	in 	its 	entirety.
Member 	Shank 	joined 	in 	this 	Decision.
Member 	Porter's 	concurrence begins 	on page 	23.
Member 	Craib's 	concurrence 	and dissent begins 	on page 	24.
22

Porter, 	Member, 	concurring: 	I 	concur 	that 	the complaint
should be 	dismissed. 	The 	leave 	of 	absence 	and 	constructive
discharges were 	untimely and, 	even 	if 	timely, 	the 	evidence does
not 	establish 	that 	the 	District 	acted 	unlawfully. 	As 	to 	the
District's 	failure 	to rehire Paige, 	I agree 	that 	applicants
are not 	"employees" under EERA, and that, 	even if applicants are
"employees," 	the 	evidence 	does 	not 	establish 	that 	the 	District
unlawfully 	failed 	to 	rehire 	Paige.
23

Member Craib, 	concurring and dissenting: 	I 	concur 	in 	the
dismissal 	of 	the 	allegations 	concerning 	the 	leave 	of 	absence
and 	the 	constructive 	discharge. 	The 	first 	is 	unquestionably
untimely. 	While 	I believe 	it more proper 	to consider 	the
statute 	of 	limitations 	as 	running 	from 	the 	date 	of 	acceptance
of 	the 	resignation 	(May 10), 	I would nonetheless 	find 	that no l
constructive discharge had occurred.11
I 	am 	compelled 	to dissent 	from 	the majority's 	dismissal 	of
the 	allegation 	that 	the 	District 	discriminatorily 	refused 	to
rehire 	Paige. 	In 	a decision 	that 	can 	only be 	described 	as 7
1First, 	it 	is 	questionable 	whether 	the 	denial 	of 	the
leave 	of 	absence 	was 	sufficiently coercive 	or 	intolerable 	as 	to
constitute 	a constructive discharge. 	More 	importantly, 	I would
find 	that 	Paige 	failed 	to prove 	that 	the 	leave 	of 	absence 	was
unlawfully denied. 	Specifically, 	the 	evidence 	supports 	the
District's 	assertion 	that 	there 	was 	no 	contractual 	or
extra-contractual 	policy providing 	for 	such 	leaves 	for
temporary employees. 	In addition, 	Paige 	failed 	to provide
persuasive 	evidence 	that 	similarly 	situated 	employees 	had been
granted 	such 	leaves 	in 	the past.
2The ALJ 	found 	that 	the 	refusal 	to 	rehire 	Paige 	was
unlawfully motivated and 	I would affirm. 	In my view, 	the
record 	reflects 	an 	unrebutted prima 	facie 	case 	of
discrimination. 	The 	record 	reveals 	that 	Paige's 	immediate
supervisor, 	Madelyn Henderson, 	harbored animus 	toward Paige
ever 	since his 	1984 	grievance 	over pay 	for 	attending 	a
mandatory workshop. 	Perhaps 	most 	damaging was 	testimony 	that
Don 	Roth, 	director 	of 	the 	court programs 	and 	Henderson's
supervisor, 	angrily 	stated 	that 	Paige 	would 	never be 	rehired
because of his 	activities 	in contesting 	the denial 	of 	a 	leave
of 	absence. 	Lastly, 	there 	is 	evidence 	that 	Paige 	received 	the
"run 	around" 	when he 	sought 	to be 	rehired 	and 	that 	Roth's
supervisor, 	Tom Johnson, 	conducted nothing but 	a cursory
investigation of 	the 	failure 	to 	rehire. 	The 	District 	called 	no
witnesses 	and 	presented 	no 	exculpatory 	documentary 	evidence
regarding 	this 	allegation.
Rather 	than adopt 	the ALJ's 	findings 	of 	fact, 	the majority
has 	chosen 	to provide 	its 	own 	selective 	recitation of 	facts 	in
24

shocking, 	the majority today holds 	that 	the 	EERA does 	not
protect 	hirees 	from 	discrimination. 	I 	submit 	that 	this
emasculation of 	a 	statute 	the 	Board 	is 	charged with
administering 	and 	enforcing 	is 	both 	illogical 	and 	without 	legal
basis 	and will 	serve 	only 	to 	seriously undermine 	the 	Board's
credibility.
The 	majority maintains 	that 	the 	EERA unambiguously 	extends
coverage 	only to present employees. 	Yet 	nowhere 	in the 	statute
is 	there 	a phrase 	or passage 	which 	compels 	such a 	limitation.
Rather, 	the majority relies 	on an assumption that 	the 	term
"employees" 	in section 3543.5(a) 	and 	the 	term 	"employed" 	in
section 	3540.l(j) 	can only be 	reasonably 	construed 	to 	refer 	to
those 	already 	in 	an 	existing 	employment 	relationship. 	A	
w	
3 	s
explained below, 	these 	terms 	are anything but 	unambiguous 	and
the majority's 	insistence 	that 	they are 	is 	most perplexing. 	It
order 	to buttress 	its 	alternative holding 	that 	Paige was 	not
discriminatorily refused 	reemployment. 	In 	reality, 	the 	facts
are 	largely undisputed 	and 	I 	would 	adopt 	the ALJ's 	findings 	of
fact, 	with 	the 	exception of his 	conclusion 	regarding 	the
District's 	leave 	of absence policies. 	Rather 	than 	repeat 	them
here, 	I have provided 	those 	findings 	(pp. 	3-15 	of 	the proposed
decision) 	as 	an attachment 	to 	this 	concurrence 	and dissent.
3section 	3540.l(j) 	defines 	a 	"public 	school 	employee" 	or
"employee" 	as 	"any person 	employed by 	any public 	school
employer 	. 	. 	. 	." 	(Emphasis added.)
Section 	3543.5 	states:
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
25

employees because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
(d) 	Dominate 	or 	interfere with 	the 	formation
or 	administration 	of 	any employee
organization, 	or 	contribute 	financial 	or
other 	support to 	it, 	or 	in any way encourage
employees 	to 	join 	any organization 	in
preference 	to another.
(e) 	Refuse 	to participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with 	Section 3548). 	(Emphasis
added.)
is 	not 	necessary to 	rewrite 	the 	statute 	or 	usurp 	the proper
role 	of 	the 	Legislature 	to 	conclude 	that 	hirees 	are protected
from discrimination. 	All 	that 	is 	required 	is 	an 	intelligent
construction 	of 	the 	statute.
First, 	one 	need 	look 	no 	further 	than 	a dictionary 	to
discover 	the 	patent 	ambiguity 	in 	the 	term 	"employed." 	The 	word
"employ," 	when used as a 	transitive verb, 	as 	it 	is 	in section
3540.1(j), 	means 	"to use or engage the services of" or 	"to
provide 	with 	a 	job 	that 	pays 	wages 	or 	a 	salary or 	with 	a means
of 	earning 	a 	living." 	Webster's 	Third 	New 	International
Dictionary, 	Unabridged, 	(1976) 	G. 	& C. Merriam Co. 	This
definition clearly 	includes 	the process 	of 	employing, 	i.e.,
hiring. 	Other 	dictionaries 	even use 	the 	word 	"hire" 	in 	their
definitions 	(See, 	e.g., 	Funk 	& Wagnalls 	Standard 	College
Dictionary 	(1974) 	Funk & Wagnalls Publishing Co., 	Inc.;
1
26

employ - 	"1. 	To engage the services of; hire"). 	In contrast,
when used 	as 	a noun, 	Webster's 	defines 	the word 	"employ" 	as
"the 	state of being 	employed." 	It 	is 	the 	definition of
"employ" 	as 	a 	noun 	that 	the majority would 	apply 	to 	the 	verb
"employed" 	appearing 	in 	section 	3540.l(j).4
Had 	the 	Legislature 	intended 	to 	extend 	the 	protections 	of
the Act 	only to present 	employees, 	it 	could have 	clearly done
so 	through 	any of 	several 	alternative phrasings 	in 	section
3540.l(j). 	Most obviously, 	a 	"public school employee" 	could
have been 	defined 	as 	"any person 	presently 	employed by 	any
public school 	employer 	. 	. 	. 	." 	Or the noun form of the word
could 	have been 	used 	to 	unambiguously 	connote 	present
employment; 	for example, 	"any person 	in the 	employ of any
public 	school 	employer."5 Instead, 	the Legislature 	chose 	a
phrasing 	that 	is 	most 	reasonably 	construed 	as 	connoting both
present 	employment 	status 	and 	the process 	of being 	employed.
While 	the 	majority errs 	in 	finding 	"employed by"
unambiguous when viewed 	in 	isolation, 	the 	error 	is 	then
4Nor 	does 	the particular 	form of 	the 	verb used, 	in 	this
case, 	is 	employed, 	change 	its meaning. 	Its usage 	in the
context 	of 	section 	3540.l(j) 	does 	not 	connote 	that 	the process
of 	employing has 	already 	transpired, 	but 	is 	instead merely 	the
result 	of 	the passive 	construction of 	the 	sentence 	in which 	it
is used.
5Another 	example 	of 	unambiguous 	phrasing 	is 	found 	in 	the
Railway Labor Act 	(RLA), 	which defines 	"employee" 	as 	"every
person 	in the 	service of a carrier" 	(45 U.S.C, 	section 151,
Fifth, 	emphasis 	added). 	Based on the critical phrase 	"in the
service 	of," 	this 	definition has been held 	to exclude
applicants. 	Nelson v. 	Piedmont Aviation, 	Inc. 	(4th Cir. 	1984)
750 F.2d 1234, 	cert. den. 	471 U.S. 	1116.
27

compounded by 	the 	majority's 	refusal 	to 	consider 	the 	statute 	as
a whole 	in determining the meaning of 	the phrase. 	It 	is
axiomatic 	that 	the meaning of a word or phrase 	is dependent, 	in
part, 	upon the context 	in which 	it appears. 	To maintain
otherwise 	is 	both 	illogical 	and 	contrary 	to 	generally 	accepted
principles 	of 	statutory 	construction.
While 	there 	is 	ample 	authority 	for 	the 	proposition 	that
extrinsic 	indicia 	of 	intent 	are 	employed 	only where 	the 	word 	or
phrase 	at 	issue 	is 	first 	found 	to be 	susceptible 	to more 	than
one 	interpretation, 	there 	is 	no dispute 	that 	the 	statute 	as 	a
whole 	must be 	considered 	in 	ascertaining 	the 	meaning 	of 	a
particular provision 	or portion 	thereof. 	One of 	the best
statements 	of 	this 	principle 	appears 	in Nunez 	v. 	Superior 	Court
(1983) 	143 Cal.App.3d 476, 	191 Cal. 	Rptr. 	893:
One 	of 	the 	common 	techniques 	of 	statutory
construction, 	besides being always 	a
starting point, 	is 	to 	read and 	examine 	the
text 	of 	the 	act 	and 	draw 	inferences
concerning meaning 	from 	its 	composition 	and
structure.
(Citing 	2A Sutherland, 	Statutory
Construction 	(4th Ed. 	1973) 	section 47.01).
Further,
. 	. 	. 	regard 	is 	to be had not so much to the
exact 	phraseology 	in which 	the 	intent has
been 	expressed 	as 	to 	the 	general 	tenor 	and
scope 	of 	the 	entire 	scheme 	embodied 	in 	the
enactments.
County of Los Angeles v. 	Frisbie 	(1942) 	19
Cal.2d 634, 	In re Marriage of 	Cary 	(1973) 	34
Cal.App.3d 345, 	109 Cal. Rptr. 	862.
A 	review 	of 	the 	EERA 	reveals 	a 	comprehensive 	collective
bargaining 	scheme 	for 	the public 	schools. 	Section 	3540 	of 	the
28

Act states, 	in pertinent part:
It 	is 	the purpose 	of 	this 	chapter 	to promote
the 	improvement 	of personnel 	management 	and
employer-employee 	relations 	within 	the
public 	school 	systems 	in 	the 	State of
California by providing 	a 	uniform basis 	for
recognizing 	the 	right 	of public 	school
employees 	to 	join 	organizations 	of 	their 	own
choice, 	to be 	represented by 	such
organizations 	in 	their 	professional 	and
employment 	relationships 	with 	public 	school
employers, 	to select one employee
organization 	as 	the 	exclusive 	representative
of 	the employees 	in an appropriate unit, 	and
to 	afford 	certificated 	employees 	a 	voice 	in
the 	formulation 	of 	educational 	policy.
Section 3543.5(a), 	supra, 	expressly prohibits
discrimination 	or 	reprisal 	based 	upon 	activity protected by 	the
statute, 	namely, 	organizational 	activity.6 It 	is
indisputable 	that 	the 	right 	to organize 	is 	seriously undermined
if 	the 	employer 	may 	lawfully 	refuse 	employment 	to applicants
(or 	former 	employees) 	due 	to previous 	union activities 	or
expressions 	of 	support 	for 	an existing 	exclusive
representative. 	The 	statement of 	the U.S. 	Supreme 	Court 	in
Phelps 	Dodge v. 	NLRB 	(1941) 	313 	U.S. 	177, 	cited by the
6Section 	3543, 	which 	generally 	describes 	employee rights
under the Act, 	states, 	in pertinent part:
Public 	school 	employees 	shall have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own choosing 	for 	the purpose 	of
representation on all 	matters 	of
employer-employee 	relations.
This 	provision has been held 	to protect 	activities 	in 	support
of 	a union other 	than one's 	own, 	which 	is 	consistent with
protection 	for 	hirees 	based 	on previous 	union activities. 	See
McPherson 	v. 	PERB 	(1987) 	189 	Cal.App.3d 	293.
29

majority, bears 	repeating here:
Discrimination 	against 	union 	labor 	in 	the
hiring of 	men 	is 	a 	dam 	to 	self-organization
at 	the 	source 	of 	supply. 	The effect 	of 	such
discrimination 	is 	not 	confined 	to 	the 	actual
denial 	of 	employment; 	it 	inevitably operates
against 	the 	whole 	idea 	of 	the 	legitimacy of
organization. 	In a word, 	it undermines 	the
principle which, 	as we have seen, 	is
recognized 	as basic 	to 	the 	attainment 	of
industrial peace.
Clearly, 	the express 	right 	to engage 	in organizational
activities 	contained 	in 	sections 	3540 	and 	3543 	and 	the 	general
prohibition 	against 	discrimination 	for 	engaging 	in 	those
activities 	contained 	in 	section 	3543.5(a) 	are patently
inconsistent 	with 	the 	exclusion 	of hirees 	from 	the Act's
protection. 	When 	these expressions 	of 	intent, 	which appear on
the 	face 	of 	the 	statute, 	are properly 	considered 	in 	construing
the meaning of 	the word 	"employed" 	in section 3540.l(j), 	it 	is
difficult 	to 	see how 	anyone 	could maintain 	that hirees 	are
unambiguously 	excluded 	from 	the 	Act's 	protections.
In 	analyzing 	the 	intent 	underlying 	the 	use 	of 	certain
words, 	the 	following authorities provide guidance:
" . . . 	the 	objective 	sought 	to be 	achieved
by a 	statute as 	well 	as 	the 	evil 	to be
prevented 	is 	of prime 	consideration 	in 	[the
word's] 	interpretation, 	and where a word of
common usage has 	more 	than one meaning, 	the
one 	which will best 	attain 	the purposes 	of
the 	statute 	should be 	adopted 	even 	though
the 	ordinary meaning of 	the word 	is 	thereby
enlarged 	or 	restricted 	and 	especially 	in
order 	to 	avoid 	absurdity or 	to prevent
injustice.
The People 	ex 	rel. 	San Francisco Bay
Conservation 	and 	Development 	Commission 	v.
Town of Emeryville 	(968) 	69 Cal.2d 	533,
citing People v. Asamoto 	(1955) 	131 	Cal.
App.2d 	22.
30

When 	a 	statute 	is 	theoretically capable 	of
more 	than 	one 	construction 	we 	are 	obliged 	to
choose 	which most 	comports 	with 	the 	intent
of 	the Legislature.
Southern California Gas 	Co. 	v. 	Public
Utilities 	Commission 	(1979) 	24 	Cal.3d 	653,
156 Cal. Rptr. 	733; Moyer v. Workmen's
Compensation Appeals 	Board 	(1973) 	10 Cal.3d
222, 	110 Cal. Rptr. 144. 	See also, 	Friends
of Mammoth 	v. 	Board of 	Supervisors 	(1972) 	8
Cal.3d 247, 	104 Cal. 	Rptr. 	761; 	Gage v.
Jordan 	(1944) 	23 Cal.2d 794; 	In re Haines
(1925) 195 Cal. 605, 	234 P. 883.
The general 	objective 	of 	the provision 	is 	a
prime consideration; 	it 	is 	to be 	construed
with 	a 	view 	to promoting 	rather 	than
defeating 	its 	general 	purpose.
See 	Redevelopment Agency v. 	Malaki 	(1963)
216 	Cal.App.2d 480.
. 	. 	. 	(the legislative) 	purpose of a statute
will 	not be 	sacrificed 	to a 	literal
construction 	of 	any part 	of 	the 	act.
Select Base Materials, 	Inc. 	v. 	Board of
Equalization 	(1959) 	51 	Cal.2d 	640.
Plainly, 	we must 	construe 	the 	Act 	in a 	fashion which will
effectuate 	legislative 	intent 	and, 	as 	excluding hirees 	from
protection would 	render hollow 	employees' 	express 	right 	to
engage 	in union activities, 	we 	are 	obligated 	to 	select 	instead
a 	77	construction that 	furthers 	that 	right.7
7The 	majority's 	willingness 	to 	find 	a 	violation 	of
employee 	organization 	rights 	in cases 	(unlike 	the 	present 	one)
where 	the 	employee 	organization 	files 	the 	charge 	does 	not
alleviate 	the 	problem. 	Ordering 	that 	an 	individual be hired 	as
a 	remedy 	for 	a 	violation of 	an employee 	organization's 	rights,
when that violation 	is 	essentially of a derivative nature, 	is 	a
proposition 	of 	dubious 	propriety. 	I 	would personally be 	quite
hesitant 	to order 	such a 	remedy, 	as 	I 	am sure my colleagues
would be 	when 	faced 	with 	an 	actual 	case. 	A discriminatory
failure 	to hire 	is 	fundamentally 	in derogation of 	the
individual 	applicant's 	rights. 	Absent protection 	for 	such
individuals, 	the 	chilling effect 	upon union activities
remains. 	Moreover, 	the majority's professed willingness 	to
31

While 	the 	exclusion 	of 	first-time 	applicants 	itself
seriously 	undermines 	the 	protections 	otherwise 	afforded by 	the
Act, 	a potentially more 	serious 	problem arises 	with 	regard 	to
rehiring situations, 	as 	is 	shown by the 	instant 	case. 	Here
Paige 	was 	a 	former 	employee who asked 	to be 	rehired only a 	few
months 	after 	a 	reluctant 	resignation. 	He 	undeniably 	engaged 	in
protected 	activity while 	in 	the 	employ of 	the 	District 	and 	was,
in my view, 	discriminated 	against because 	of 	that 	activity.
Though he was 	not presently employed at 	the 	time he was 	not
rehired, 	the genesis of the dispute, 	indeed, 	of 	the animus 	that
prevented his 	rehiring, 	took place 	when 	even 	the 	majority would
agree 	that 	Paige 	was protected by the Act. 	The magnitude 	of
this 	problem 	is 	apparent 	when one 	considers 	that 	the public
schools 	frequently engage 	the 	services 	of part-time 	and
temporary 	employees 	whose 	present 	employment 	status 	may be
severed 	and 	reestablished 	on a 	regular basis. 	Indeed, 	anyone
who 	is hired on 	the basis 	of yearly contracts 	(and who 	is 	not
tenured) 	may have 	a gap 	in present 	employment 	status between
contracts. 	Such 	contracts 	are 	common 	among certificated
employees 	and, 	while many are 	informed 	of 	their 	status 	for 	the
succeeding 	school 	year prior 	to 	the 	expiration of 	the 	existing
contract 	(and 	thus 	would be 	protected 	even 	under 	the 	majority's
view), 	many are not. 	For example, 	the standard contract might
lessen 	the 	deleterious 	effects 	of 	its 	decision by 	finding a
violation of union 	rights, 	j^ the union 	is 	a party to 	the 	case,
does 	not 	obviate 	the 	need 	to 	judge 	the propriety of 	its
conclusion 	that hirees 	themselves 	are 	not 	protected.
32

run 	from 	September 	through 	June 	and 	rehiring 	decisions 	might
not be made 	until July or August. 	Under 	the majority's 	view,
anyone 	working 	under 	such 	a 	system 	would be 	unprotected 	from 	a
discriminatory 	failure 	to 	rehire 	due 	to previous 	protected
activity. 	The 	gaping hole 	in 	the protections 	of 	the Act 	under
the majority's 	view and, 	thus, 	the abrogation of 	the 	express
purpose of the Act, 	is apparent.
In 	support 	of 	its 	tortured 	construction, 	the 	majority puts
great 	weight 	upon 	the 	absence 	of 	any express 	mention of hiring
in section 3543.5(a). 	As 	will be discussed 	infra, 	the presence
or absence of 	such language 	is not determinative. 	Moreover, 	we
are 	fortunate 	to have 	an 	expression 	of 	legislative 	intent 	which
explains 	the 	choice 	not 	to make a 	"laundry 	list" 	of 	outlawed
forms 	of discrimination. 	The 	source 	I 	speak of 	is 	the Final
Report 	of 	the 	Assembly Advisory 	Council 	on 	Public 	Employee
Relations 	(March 	15, 	1973)(hereafter 	"Advisory Council
Report"). 	As 	the 	California Supreme Court has 	stated on
several 	occasions, 	"Statements 	in legislative committee 	reports
concerning 	the 	statutory objects 	and purposes 	which 	are 	in
accord 	with 	a 	reasonable 	interpretation 	of 	the 	statute 	are
legitimate 	aids 	in determining 	legislative 	intent." 	Southern
California Gas Co. v. 	Public Utilities Commission, 	supra, 	24
Cal.3d 653, 	659; 	Southern Pacific Co. 	v. 	Industrial Accident
Commission 	(1942) 	19 Cal.2d 271.
The 	Assembly Advisory 	Council 	(Advisory 	Council 	or
Council), 	created by House 	Resolution 51, 	adopted June 	22,
1972, 	was charged with, 	inter alia, 	reviewing the effectiveness
33

of 	then-existing 	statutes 	pertaining 	to public 	sector 	labor
relations 	and proposing 	a 	new 	statutory 	framework. 	While 	the
Council's 	proposed 	statute 	(which 	would 	have 	covered 	virtually
all public 	employment) 	was 	not 	adopted by the Legislature, 	it
was 	nevertheless 	the 	impetus 	for 	the passage of 	the 	EERA. 	The
EERA 	is 	remarkably 	similar 	to 	the 	Advisory 	Council's 	proposed
statute and, 	to the extent of 	those similarities, 	the Advisory
Council 	Report 	is 	of 	relevance 	in determining 	legislative
intent. 	See Healdsburg Union High School 	District, 	et al.
(1984) 	PERB Decision No. 	375 	and San Diego Teachers Association
et al. 	v. 	Superior Court 	(1979) 	24 Cal.3d 1, 	11.
Section 	3507(a) 	of 	the proposed 	statute enumerates 	employer
unfair practices. 	Like 	section 3543.5 	of 	the EERA, 	proposed
section 	3507(a) 	does 	not 	expressly mention hiring. 	Further,
proposed 	section 	3507(a)(1) 	contains 	the 	identical
anti-discrimination language 	as 	EERA section 3543.5(a), 	supra;
3507.(a) 	It 	shall be unlawful 	for an
employer 	to:
(1) 	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.
At page 	77 	of 	the Advisory Council 	Report, 	the Council
discusses why it chose 	the 	language 	it did 	for 	section 3507(a):
In our 	view, 	the 	statement of prohibited
practices 	should be 	in general 	terms, 	and no
effort 	should be made 	to compile 	a 	long 	list
of 	proscribed acts. 	We 	so 	recommend because
administrative 	agencies 	and 	courts 	are
likely 	to 	construe 	such 	a 	list 	as 	excluding
34

any conduct 	not 	specifically mentioned, 	and
experience 	has 	demonstrated 	that 	even 	the
ablest 	draftsmen 	cannot 	anticipate 	or
accurately 	describe 	every 	kind 	of 	conduct
that 	the 	Legislature 	would probably want 	to
outlaw. 	The better approach, 	it 	seems 	to
us, 	is 	to cast 	the statutory prohibitions 	in
terms 	that 	alert 	the parties 	to what 	is
forbidden, 	but permit 	the Board some
discretion 	and 	flexibility 	in 	applying 	them.
Thus, 	the 	absence of 	any express mention of hiring was 	not 	due
to a desire 	to exclude hirees 	from 	coverage, 	but 	to 	reflect 	the
Advisory 	Council's 	view 	that 	such provisions 	are better 	couched
in general 	terms.
At page 34 of the report, 	the Advisory Council, 	in
discussing 	the 	interplay of 	the 	proposed 	statute 	with 	existing
civil service systems, 	states:
We believe, 	however, 	that civil 	service will
continue 	to 	fulfill 	an 	important 	function 	in
hiring procedures—i.e., 	recruiting,
examination, 	and 	placement—and 	perhaps
other 	essential 	areas 	as 	well.
This 	discussion appears 	in a portion of 	the 	report 	entitled
"Nature 	and 	Scope 	of 	Proposed 	New Law." 	If 	the proposed
statute was 	intended 	to avoid 	any effect 	upon hiring, 	such 	a
discussion would have been unnecessary and, 	in 	fact,
nonsensical. 	In 	sum, 	legislative history does 	not 	support 	the
view 	that 	hirees 	were 	intentionally omitted 	from 	the 	protection
of 	the EERA; 	indeed, 	it 	supports 	the 	view that 	the 	intent was
that hirees 	were 	to 	enjoy protection.88
8AS 	the majority notes, 	the 	analogous provisions 	of 	the
other 	two 	statutes 	administered by 	PERB 	(the 	Ralph 	C. 	Dills 	Act
and 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act)
35

contain 	language 	very 	similar 	to that 	in EERA. 	This 	simply
shows 	that 	the 	Legislature 	was 	consistent 	in drafting 	these
three 	statutes 	and 	that 	they 	therefore 	should be 	similarly
construed. 	Contrary to the majority's 	assertion, 	this
consistency 	is 	of 	no probative 	value 	in 	determining whether 	the
statutes 	afford protection 	to hirees.
As 	the majority points 	out, 	the 	seminal 	case on
discrimination 	in hiring 	under 	the 	NLRA 	is 	Phelps 	Dodge 	Corp.
v. 	NLRB, 	supra. 	As 	the majority also points out, 	the court 	in
that 	case 	relied 	in part 	upon 	the 	express 	mention of hiring 	in
section 8(a)(3) 	of the NLRA. 	Nevertheless, 	the case 	is
instructive, 	not 	only 	for 	the passage 	quoted 	earlier, 	but 	also
for 	its 	comments 	on 	the 	general 	nature 	of 	labor 	relations
statutes. 	Labor 	relations 	statutes 	are 	inevitably drafted
using very general 	language, 	in essence, 	providing a set of
principles 	which 	require 	a 	substantial 	amount 	of 	interpretation
by the 	courts 	or by boards 	such as 	PERB. 	The U. 	S. 	Supreme
Court 	in Phelps 	Dodge Corp. 	summarized 	this 	reality as 	follows:
Unlike mathematical 	symbols, 	the phrasing of
such 	social 	legislation 	as 	this 	seldom
attains 	more 	than approximate precisions 	of
definition. 	That 	is why all 	relevant 	aids
are 	summoned 	to determine meaning. 	Of
compelling 	consideration 	is 	the 	fact 	that
words 	acquire 	scope 	and 	function 	from 	the
history 	of 	events 	which 	they 	summarize. 	We
have 	seen 	the 	close 	link between 	a bar 	to
employment 	because 	of 	union 	affiliation 	and
the 	opportunities 	of 	labor 	organizations 	to
exist 	and 	to prosper. 	Such an embargo
against 	employment 	of 	union 	labor 	was
notoriously one 	of 	the 	chief 	obstructions 	to
collective 	bargaining 	through
self-organization. 	Indisputably 	the 	removal
of 	such 	obstructions 	was 	the 	driving 	force
behind 	the 	enactment 	of 	the 	National 	Labor
Relations 	Act.
36

While 	the 	court 	in 	Phelps 	Dodge 	Corp. 	noted 	the 	existence
of 	language 	in 	section 8(a)(3) 	specifically mentioning hiring,
a 	later 	case 	reveals 	that 	the 	inclusion of hirees 	under 	the
NLRA 	is 	not 	dependent 	upon 	that 	language. 	In Associated
General 	Contractors 	of America, 	Houston Chapter 	(1963) 	143 NLRB
409, 	e n f d 	349 	F.2d 	449 	(5th Cir. 	1965), 	cert. 	den. 	382 	U.S.
1026 	(1966), 	the NLRB was 	faced with 	the 	issue of whether 	an
employer 	must bargain over 	use 	of 	a hiring hall. 	The employer
argued 	that 	the absence of 	language 	in NLRA section 8(d)9 99
referring 	to hiring 	required 	a 	result 	different 	from 	that
reached 	in Phelps 	Dodge 	Corp. 	The NLRB 	concluded 	that
"'employment' 	connotes 	the 	initial 	act 	of 	employing as 	well 	as
the 	consequent 	state 	of being employed." 	Surely, 	"employed
by," 	and 	even 	"employee," 	must 	logically carry 	the 	same 	meaning.
While 	many public 	labor 	relations 	statutes 	in 	other 	states
specifically prohibit 	discrimination 	in hiring, 	many do
not.10 Yet, 	there 	is 	no 	indication 	that 	this 	distinction 	is
intended 	to 	include or exclude hirees, 	as 	the case may be.
9Section 	8(d) 	defines 	the 	scope 	of 	representation under
the NLRA as 	"wages, 	hours, 	and other 	terms 	and conditions of
employment."
10A 	sample 	of 	those 	which 	do 	not 	specifically prohibit
discrimination 	in hiring 	follows: 	Municipal 	Employee 	Relations
Act, 	Section 7-467 	et 	seq., 	General 	Statutes 	of Connecticut;
School 	Board-Teacher 	Negotiations 	Act, 	Section 	10-153a et 	seq.,
Title 	10, 	Chapter 	166, 	General 	Statutes of Connecticut; 	Section
1301 et seq., 	Part 1, 	Title 19, 	Delaware Code 	(public
employees); 	Section G-401 	et seq.. 	Title 6, 	Subtitle 4, 	Code of
Maryland 	(certificated 	school 	employees); 	Section 	6-501 	et
seq., 	Title 	6, 	Subtitle 5, 	Code of Maryland 	(non-certificated
school employees); 	Section 48-801 et seq., 	Revised Statutes of
37

Instead, 	it 	appears 	that 	some 	statutes 	are merely drafted with
more 	specificity. 	In 	fact, 	apparently there are no 	reported
court 	cases 	expressly 	dealing 	with 	this 	issue.11 While 	the
majority would 	likely attach 	a different 	significance, 	I
believe 	common 	sense 	dictates 	the 	conclusion 	that 	only 	very
rarely would 	a 	litigant 	have 	the 	audacity 	required 	to 	assert
that 	such 	a 	statute 	does 	not 	cover hirees.
Nebraska 	(public employees); 	Public Employees' 	Fair Employment
Act, 	Section 200 et seq., 	Article 14, 	Laws of New York; 	New
York 	City Collective 	Bargaining Law, 	Section 	1170 	et 	seq.,
Admin. 	Code of 	the 	City of New York; 	State and Political
Subdivision Employment Relations Act, 	Section 1 	et 	seq.,
Chapter 	15-38, 	Century Code of 	North Dakota; 	Teacher 	Collective
Bargaining Act, 	Section 1.01 et seq., 	Chapter 15-38, 	Century
Code of North Dakota; 	Section 509.1 et seq., 	Chapter 	7, 	Title
70, 	Oklahoma Statutes 	(teachers); 	Public Employees Collective
Bargaining Act, 	Section 101 et seq., 	Chapter 41.56, 	Title 41,
Revised Code of Washington; 	Section 010 et 	seq., 	Chapter
28B.52, 	Title 	28B, 	Revised Code of Washington 	(community
college district academic personnel).
The 	majority's 	statement 	that 	"every 	other 	state 	and
federal 	law of a similar nature 	is 	explicit 	in 	its 	inclusion of
applicants" 	is 	simply 	false. 	All of 	the 	above 	are 	collective
bargaining 	laws 	which 	grant 	the 	right 	to 	engage 	in 	union
activities 	and 	prohibit 	discrimination based 	on 	those
activities. 	Any distinctions 	in other 	aspects 	of 	these 	laws
are not 	relevant 	to the 	issues 	in this 	case.
There 	is 	also 	little 	consistency 	even within particular
states. 	For 	example, 	while 	the 	statute 	covering most public
employees 	in Delaware 	(see 	fn. 	9) 	makes 	no specific mention of
11	ll As	As 	will be discussed 	infra, 	precedent 	under 	New York's
Taylor 	Law 	implicitly extends 	coverage 	to hirees.
Nor 	are 	there 	any 	reported 	cases 	under 	the
Meyers-Milias-Brown Act, 	Government 	Code 	section 	3500 	et 	seq.,
a 	California 	statute 	covering 	local 	government 	employees 	which
has 	analogous 	provisions 	essentially 	identical 	to 	those 	in 	the
EERA.
38

hiring, 	the 	statute 	covering public 	school 	employees 	does
(Delaware Code, 	Section 4001 et seq., 	Chapter 40, 	Title 14).
Similarly, 	while 	statutes 	in Washington 	covering public
employees 	and 	academic personnel 	in 	community 	college 	districts
do not 	specifically mention hiring 	(see 	fn. 	9 ) , 	the Educational
Employment 	Relations 	Act 	(Revised Code 	of Washington, 	Section
010 et 	seq.. 	Chapter 	41.59, 	Title 	41) 	and 	the Washington State
Ferry 	System 	Collective 	Bargaining Act 	(Revised 	Code 	of
Washington, 	Section 1 et seq., 	Chapter 15) 	expressly outlaw
discrimination 	in hiring. 	To 	conclude 	that 	the 	legislatures 	in
these 	states 	intended 	to protect 	some public 	employees 	from
discrimination 	in hiring but 	not 	others 	is 	to conclude 	that
those 	legislatures 	are 	arbitrary and 	illogical. 	A more
plausible 	conclusion 	is 	simply 	that 	the 	difference 	in 	language
was 	not 	intended 	to affect 	the 	scope of 	the 	statutes, 	but
instead 	simply 	reflects 	the 	fact 	that 	legislatures 	sometimes
choose 	to make 	express 	what 	is 	necessarily 	implied by other
provisions 	of 	a 	statute.
While 	there 	are 	no reported 	cases 	holding 	that 	the 	absence
of 	specific mention of hiring 	in a 	statute 	excludes hirees 	from
the protection of 	that 	statute, 	precedent 	under 	New York's
Public 	Employees' 	Fair 	Employment 	Act 	(commonly referred 	to as
the 	"Taylor Law," 	see 	fn. 	9) 	indicates 	that 	such 	a statute does
protect hirees. 	In Elba 	Central 	School 	District 	and 	Elba
Faculty Association 	(1983) 	16 	PERB par. 	3024 	(affirmed by the
New York 	Supreme 	Court, 	Appellate 	Division, 	in Elba Central
School District v. 	Harold R. 	Newman 	(1984) 	476 NYS 2d 949), 	the
39

New York 	Public 	Employment 	Relations 	Board 	(N.Y. 	PERB) 	without
specifically discussing 	coverage 	of 	hirees, 	found 	that 	the
district 	unlawfully 	failed 	to 	rehire 	a 	teacher 	whose 	employment
status, 	like 	that of 	the 	charging party 	in 	the 	instant 	case,
had 	lapsed 	for 	several 	months.12 In 	Brighton 	Central 	School
District 	(1986) 	19 PERB par. 	3032, 	the N. 	Y. 	PERB dismissed as
untimely an allegation 	involving 	a 	refusal 	to hire 	a 	former bus
driver of 	the 	school 	district 	. 	The N.Y. 	PERB's 	discussion 	in
the 	case 	appears 	to assume 	that 	the 	claim would have been
cognizable had 	it been 	timely 	filed.
Somewhat 	ironically, 	a 	review of 	labor 	relations 	statutes
from 	other 	states 	which 	expressly 	outlaw 	discrimination 	in
hiring 	also 	supports 	my construction 	of 	the 	EERA. 	Many of
these 	statutes 	define 	"employee" 	using 	the 	same 	operative
language 	found 	in EERA section 3540.1(j), 	i.e., 	"employed
by."13 Thus, 	it 	is 	clear 	that 	such 	language does 	not 	connote
the exclusion of hirees, 	but 	is, 	in fact, 	commonly viewed as
consistent 	with 	their 	inclusion.
12	12The	The 	teacher's 	annual 	appointment 	expired 	on June 	30,
1981. 	She 	inquired 	in August of 	1981 	about 	reappointment 	and
was 	told 	in September 	that 	she 	would not be 	rehired. 	The
evidence 	revealed 	that 	the 	school 	district 	normally made 	and
announced 	such 	rehiring 	decisions 	each 	August 	for 	the 	upcoming
school year.
13For 	example: 	Public 	Employment 	Relations Act, 	Section
1 et seq., 	Chapter 20, 	Iowa Code, 	section 3(3)—"'Public
employee' 	means 	any 	individual 	employed by a public 	employer 	.
. 	."; 	Public Employment Relations Act, 	Section 89-1, 	Chapter
89, 	Hawaii 	Revised Statutes, 	Section 89-2(7)—"'Employee' or
'public 	employee' 	means 	any person employed by a public
employer 	. 	. 	."; 	Illinois Public Labor Relations Act, 	par. 	1601
40

et seq., 	Chapter 48, 	Illinois Revised Statutes, 	Section
3(n)—"'Public employee' or 	'employees,' 	for 	the purposes 	of
this 	Act, 	means 	any 	individual 	employed by a public
employer 	. 	. 	."; 	Public Employee Relations Act, 	Section 447.201
et seq., 	Chapter 447, 	Florida Statutes, 	Section
447.203(3)—"'Public 	Employee' 	means 	any person 	employed by 	a
public employer 	. 	. 	."; Municipal 	Employment Relations Act,
Section 111.70(1) 	et seq., 	Chapter 111, 	Subchapt. 	IV, 	Wisconsin
Statutes, 	Section 111.70(1)(b)—"'Municipal 	Employee' 	means 	any
individual employed by a municipal employer 	. 	. 	. 	." 	(Emphasis
added.)
In 	sum, 	the majority's 	interpretation of 	the EERA as
excluding protection 	of hirees 	from 	discrimination based 	on
union activities (or 	sympathies) 	is 	utterly without 	foundation.
The 	majority's 	insistence 	that 	EERA 	section 	3540.1(j)
unambiguously defines 	"employees" 	as 	only 	those 	enjoying 	a
present 	employment 	status 	is 	without 	support 	whether 	the
operative 	terms 	are viewed 	in 	isolation or, 	more properly, 	in
the 	context 	of 	the 	statute as 	a whole. 	Further, 	extrinsic
indicia of 	legislative 	intent, 	authorities 	from other
jurisdictions 	and, 	indeed, 	logic 	and common sense 	reveal 	the
clearly erroneous 	nature of 	the majority's 	decision.
41

Attachment 	to 	Member 	Craib's
Concurrence 	and 	Dissent
Respondent 	then 	filed 	a Motion 	for 	a 	Continuance 	on June 	4,
1986. 	The motion was 	granted, 	and 	the 	hearing was 	rescheduled
for July 11, 	1986. 	On that date 	a 	formal 	hearing was 	conducted
before 	the 	undersigned.
Post-hearing 	briefs 	were 	received 	by 	the 	PERB 	by
September 	25, 	1986. 	the matter was 	then 	submitted 	for 	proposed
decision.
II. 	FACTS
A. 	Background
The 	aspect 	of 	Respondent's 	operation 	at 	issue 	in 	this 	case
is 	its Adult 	School. 	The 	school 	offers 	services 	in various
areas, 	including 	one called 	the 	"Court 	Programs." 	Under 	the
Court 	Programs' 	umbrella 	are 	such things 	as Traffic Violators
School, 	"Understanding Alcoholism" 	program, 	and the 	"Drinker,
Driver 	Program" 	or 	SB-38 	Program, 	the 	last of which offered
classes 	for 	people 	required 	by court 	order 	to 	attend 	as 	a
result 	of 	a 	conviction of 	driving while 	intoxicated.
Jeff 	Paige 	began working 	for 	the District 	in early 	1979 	as
a driving 	instructor, 	and 	in the 	fall 	of 	that year 	began
serving 	as 	a 	counselor 	in the 	SB-38 	program. 	During 	1984 	and
the spring of 	1985, 	Paige was 	a counselor, 	group 	facilitator,
and 	a 	substitute 	teacher 	in 	the 	SB-38 	Program and 	the Traffic
Violator 	School. 	Paige worked 	a 	14-hour-per-week teaching
schedule 	in a year-round program 	(12 months). 	By virtue of
that 	schedule, 	a 	collective bargaining 	agreement 	covering
certificated 	employees 	(including 	Paige) 	designated
3

him as 	a temporary, 	part-time employee. 2
Paige's 	immediate 	superior was Madelyn Henderson, 	Director
of 	the Court 	Programs. 	Although 	she was 	a member 	of 	the 	same
bargaining unit 	as 	Paige, 	she 	acted 	as 	a conduit 	for 	the
administration 	vis-a-vis 	Court 	Programs 	employees 	in 	several
areas. 	The 	record 	evidence 	indicates 	that 	she 	had 	the 	ability
to 	influence upper management 	decisions 	concerning 	employees 	in
her 	program. 	She 	had 	to 	be 	consulted 	before 	a 	decision was
made 	as 	to 	Paige's 	leave 	request described below. 	She 	set 	up
workshops 	for 	staff 	and, 	via memoranda 	to 	staff, 	required 	their
attendance. 	Anyone 	not 	able 	to 	attend was 	directed 	to 	provide
justification directly to 	her. 	She 	assigned 	tasks 	to
employees, 	including Paige. 	She sent 	a memo to 	staff
reflecting 	her 	satisfaction with 	their 	attendance 	at 	one
workshop. 	Employees, 	including 	Paige 	and Contois 	Simpson
regarded her 	as 	their 	"boss." 	She was 	the 	target 	of 	at 	least
one employee group grievance, 	as detailed below. 	Requests 	for
such things 	as overtime compensation, 	leaves, 	etc. 	were
screened 	by her 	before 	being 	approved.
B. 	Alleged 	Retaliatory Conduct 	by 	the 	District
Paige 	alleged 	that, 	after 	filing 	a 	class 	action grievance
2Paige's 	interpretation 	of 	the 	contract 	(during 	his
testimony) 	was 	that 	if 	one took the number 	of 	hours 	he worked
on 	a yearly basis 	and 	"compressed" 	these down to 	a 	school year,
then 	he would 	have 	an hourly 	average 	exceeding 	the 	number
required 	to 	become 	permanent. 	While 	novel 	and 	interesting,
there 	is 	no evidence to 	support 	this 	interpretation, 	and 	it 	is
unpersuasive.
44

against Henderson on behalf 	of 	himself 	and 	fellow employees, 	he
was 	"set up" 	for 	termination without 	the possibility of
reinstatement. 	This 	"set-up" 	consisted of 	representations 	by
supervisors which 	led 	him to 	believe 	he was 	entitled 	to 	a
temporary 	leave 	of 	absence 	(a 	detrimental 	reliance 	on 	those
representations), 	a subsequent denial of his 	leave request, 	an
eventual 	coerced 	resignation under 	threat 	of 	termination, 	and 	a
later 	refusal 	to 	re-employ him.
On January 25, 	1984, 	Madelyn Henderson issued a memorandum
to 	staff, 	requiring 	that 	they 	attend 	a workshop 	she 	scheduled
for 	Sunday, 	February 26, 	1984. 	Anyone who 	anticipated not
being 	able 	to 	attend was 	instructed 	not 	to 	simply 	leave 	a
message with the 	secretary, 	but 	to clear 	it directly with
Henderson. 	A few days 	before 	the 	event, 	she 	assigned Paige 	the
task of 	covering 	"the 	fine 	points 	of 	record 	keeping" 	at 	the
workshop.
The 	day 	following 	the 	Sunday 	session, 	Paige 	and 	other
attendees 	submitted payroll 	documents, 	which contained 	a
request 	to 	be 	paid 	for working 	that 	Sunday, 	to Henderson.
These 	requests 	were 	rejected. 	Paige 	filed 	a 	second 	request
with an 	attached 	note 	to Henderson, 	indicating 	that 	she 	had
"whited 	out" 	his 	first 	request without 	notifying 	him 	and
demanding 	that 	it 	be 	submitted 	to 	the personnel 	office.
Henderson then wrote 	to 	Paige, 	informing 	him that 	she 	had
decided 	to 	forward his 	request 	to Adult 	School Assistant
Director 	Richard 	Fraley.
5

Not 	having 	received 	an 	indication 	of whether 	the 	Sunday pay-
would be granted, 	Paige, 	being 	the union 	representative 	for
Hacienda La 	Puente Teachers Association, 	on the 	(Proctor)
campus, 	filed a grievance on March 14, 	1984 	against Henderson,
on behalf 	of 	himself 	and 	the 	other 	teachers who 	had 	attended
the workshop. 	Paige's 	name 	appeared 	prominently on 	every page
of 	the multi-page 	grievance 	and 	his 	signature was 	on 	the 	last
page.
The 	grievance was 	expanded 	to 	include, 	besides 	the 	Sunday
pay issue, 	complaints 	regarding Henderson's 	treatment 	of
employees 	- 	accusations 	of 	threats 	of dismissal, 	hostile
conduct, 	throwing 	a book at 	an employee, 	and demeaning
employees 	during 	staff 	meetings.3 After 	the 	grievance was
filed, 	and 	through 	the 	intervention 	of 	then-superintendent
Russell 	Ribb, 	all 	the employees 	received pay for 	having
attended 	the 	Sunday workshop.
From that 	point 	on, 	Paige's 	relationship with Henderson
deteriorated. 	Whereas 	they had 	previously chatted 	and
communicated 	in 	a 	free 	and 	friendly manner, 	Henderson 	then
became distant 	and non-communicative. 	She 	spoke 	to 	Paige 	only
when 	required 	to 	or when he 	initiated 	a 	conversation. 	She
stopped 	greeting 	Paige 	as 	they passed 	each 	other 	in 	hallways
and upon 	their 	first 	contact 	of 	the 	day. 	She 	began
3 The 	record 	indicates 	that, 	although Henderson's 	conduct
toward 	other 	employees 	may have 	been unfriendly, 	she 	and 	Paige
t. 	along. . well prior to February 1984 .	needtowe go 	. . . . . . ... ."
6

communicating with 	Paige 	by written 	notes 	or memos 	even when
they were 	both 	at work. 	This 	practice 	apparently continued 	up
through March of 	1985, 	when Henderson 	left 	him a 	note 	to 	fill
out 	a 	resignation 	form, 	as will 	be detailed below.
Being 	an 	employee 	of 	the California 	Highway Patrol 	when 	he
was 	not working 	part-time 	for 	the District, 	Paige 	occasionally
received 	temporary employment 	offers 	that 	led 	to 	promotions
within that Department. 	In about the fall of 	1984, several 	such
offers 	were 	presented 	to 	him. 	He 	turned 	each of 	them down
because 	they 	required 	that 	he 	relocate 	to 	another 	city 	for 	an
extended period of 	time 	(6-7 months), 	after discussing 	these
with Henderson. 	He 	informed 	her 	that 	he was 	turning 	them down
because 	they 	required 	him to 	be 	away 	for 	too 	long 	and 	because
he wanted 	to 	maintain 	his 	employment 	relationship with 	the
District.4 Therefore, 	he 	said he would wait until 	a
promotional 	assignment 	of 	a 	shorter 	duration came 	along.
Henderson 	told 	him not 	to worry, 	that 	something would 	come
along.
In the 	spring 	of 	1985, 	Paige 	received 	another 	opportunity
to be promoted 	to 	lieutenant, 	which 	required 	that 	he 	accept 	a
temporary assignment 	in Monterey, 	California 	for 	a 	period of
two 	to 	three months, 	beginning on April 	1, 	1985. 	Relying on
previous 	knowledge 	that 	other 	employees 	had 	been 	granted 	leaves
for 	extended 	periods 	and 	upon Henderson's 	implication 	that 	a
4Paige was still working 	part-time 	for 	the 	District 	and
lived 	in nearby Diamond 	Bar, 	California.
77

temporary 	absence 	due 	to 	promotional 	assignments 	would 	not 	pose
UT	5
any problems, 	Paige 	accepted 	the offer 	to 	go 	to Monterey.
Paige 	subsequently 	prepared 	a 	memorandum 	requesting 	a
two-month 	leave 	of 	absence 	and 	explaining 	his 	reasons
therefor. 	He 	submitted 	the 	request 	to 	Henderson 	in 	late
February 	1985, 	and 	personally delivered 	a 	copy to Adult 	School
Director 	Don Roth's 	office. 	When he 	presented 	the 	request 	to
Henderson, 	and 	explained 	about 	having 	accepted 	the 	offer 	to 	go
to Monterey, 	she 	told him 	"we're going 	to 	replace you."
At 	the 	time 	Paige delivered 	a 	copy of 	the 	request 	to 	Roth's
office, 	the 	latter was 	in conference with someone else.
However, 	Fraley was 	available to discuss 	Paige's 	request. 	In
that 	discussion, 	Fraley 	informed him that 	he 	did 	not 	have 	to 	go
the 	"leave of 	absence" 	route, 	and that 	"we can do 	that
informally." 	Fraley informed 	Paige 	that 	all 	he 	had 	to 	do was
to 	find 	substitutes 	to 	fill 	his 	position until 	he 	got 	back 	and
the District 	could place him 	(Paige) 	on 	"inactive 	status" 	in
the 	interim. 	Paige 	agreed 	to 	proceed 	as 	Fraley 	suggested.
Fraley told 	him that 	the 	procedure 	should be 	no 	problem, 	that
he would 	relate 	the matter 	to 	Roth 	and 	that, 	although Henderson
had 	to 	be 	consulted 	first, 	Roth would 	then get 	back to 	Paige
with 	the 	result.
5paige	5paige 	testified 	that 	several 	other 	named 	employees 	had
been granted 	similar 	leaves. 	Other 	than 	a 	stipulation 	that 	one
employee was 	on 	sick or 	accident 	leave, 	the only evidence
regarding 	these 	is Paige's hearsay accounts, 	which cannot, 	by
themselves, support a finding. 	(8 Cal. Admin. 	Code section
32176.) 	These 	are used 	herein only to 	explain 	Paige's 	conduct.
. . .
8

Rather 	than hearing 	from Roth, 	Paige 	received 	a written
request 	from Henderson 	on March 	6 	that 	he 	complete 	and 	submit
an 	attached 	resignation 	form by 	the 	following 	day. 	Although
both were present 	at work during 	the day, 	Henderson 	chose 	to
leave her memo 	in Paige's 	box 	just 	prior 	to 	her 	departing 	for
the day.
In 	an 	immediate responsive memorandum to Henderson, 	Paige
informed 	her 	that 	he was 	not 	submitting 	a 	resignation 	form
because 	he 	did 	not wish 	to 	resign 	but 	was 	very happy with 	his
position 	and desired 	to 	remain 	in 	the 	employ of 	the District.
He 	added 	that 	he wanted 	to 	go 	on 	inactive 	status 	for 	a 	short
period 	and 	to 	resume his 	responsibilities 	upon his 	return.
About 	a week 	later, 	on March 	14, 	Paige 	received 	a 	letter
from Roth, 	informing him that 	a 	leave of 	absence 	"is 	not
allowed 	for 	temporary employees." 	Although Paige 	had 	not 	yet
resigned, 	and 	though there was 	no 	reference to 	Fraley's 	offer
to place Paige on 	"inactive 	status," 	Roth wrote that, 	"It will
be 	necessary to 	replace you with 	someone 	else."
On March 25, 	1985, 	Paige 	frantically submitted 	a memorandum
to 	Roth 	requesting 	that 	he 	reconsider 	his 	decision. 	In 	that
memo, 	Paige 	recounted 	his 	discussion with Fraley wherein 	an
accord was 	reached 	that 	he 	(Paige) 	would 	be 	placed 	on 	inactive
status. 	Paige 	included 	a 	list 	of 	nine qualified 	instructors,
already 	in 	the 	program, 	he had 	recruited 	to 	cover 	his 	classes
during 	the 	absence. 	Each 	instructor 	had 	committed
himself/herself 	to 	substitute 	by 	signing 	opposite 	their 	names
9

on the 	first 	page of 	Paige's memo.
Paige's 	request 	also 	included 	a 	discussion of 	his 	protected
activities 	(including 	his 	duties 	as 	union 	representative 	and
his grievance against Henderson), 	Henderson's 	attitude
following 	that 	activity, 	and 	his 	fear 	that 	they were 	trying 	to
"get 	rid" 	of 	him.
In 	response, 	Roth wrote 	the 	following 	in 	a 	letter 	to 	Paige
dated March 29, 	1985:
There 	is 	no 	authority under which 	a 	leave
can be 	granted 	to 	other 	than 	a 	permanent
certificated 	staff 	member.
The 	authority of 	site 	administrator 	to 	allow
a 	"necessary absence" 	or 	"inactive 	status"
has 	been 	limited 	to 	two weeks. 	Failure 	to
report 	to work 	is 	cause 	for 	termination 	and
would 	lessen your 	likelihood 	of 	being
rehired; 	a 	simple 	resignation due to other
obligations would 	not.
Roth did 	not 	explain 	the 	authority under which 	he 	could 	grant 	a
"necessary 	absence" 	or 	"inactive 	status." 	Other 	than Paige's
testimony 	regarding 	Fraley's 	representations, 	the 	record 	is
devoid of 	evidence 	specifying 	that 	"leave" 	policy. 	It 	does 	not
appear 	in 	the 	pertinent 	collective 	bargaining 	agreement.
Having 	already 	relocated 	temporarily 	to Monterey, 	Paige
submitted 	a 	conditional 	resignation to Roth on April 	6, 	1985.
He wrote 	that 	it was 	"with the understanding 	that 	I 	will 	be
rehired 	and 	reinstated to my present position 	. 	. 	. 	upon my
return in 	60-90 days."
Between 	late March 	and mid-April 	1985, 	Roth had 	been
conducting 	an 	inquiry 	about 	Paige's 	"request 	for
10

reconsideration" 	of March 25. 	According 	to 	the 	testimony of
Contois 	Simpson, 	a 	colleague of 	Paige who 	had committed herself
to 	substitute 	for 	a 	portion of 	Paige's 	assignment, 	she was
contacted 	by Roth 	about 	the document. 	With 	a 	demeanor 	that
Simpson 	described 	as 	"very 	angry," 	Roth 	asked 	her 	if 	she 	had
signed 	Paige's 	document 	and whether 	she 	had 	any 	idea 	what 	she
had 	signed. 	He 	asked 	her 	if 	she 	recognized 	the 	attached 	pages
that 	referred 	to 	Paige's 	activity 	as 	a 	union 	representative 	and
of 	the 	problems 	with Henderson. 	Simpson 	replied 	in 	the
negative.
Roth 	told 	Simpson 	that 	"Paige 	actually wanted 	to 	get 	his
job back," 	but 	that 	he 	"would 	never 	be 	rehired 	by the
District." 	He 	expressed 	his 	displeasure with 	the 	fact 	that
Paige 	"had gone outside 	the District, 	including 	[to] 	the union."
On April 	19, 	Assistant 	Superintendent 	for 	Personnel 	James
Johnson wrote 	to 	Paige 	informing 	the 	latter 	that 	the
resignation would 	not 	be 	recommended 	to 	the 	board 	of 	education
because 	the 	District 	did 	not 	accept 	conditional 	resignations.
He 	asked 	Paige 	to 	immediately 	tender 	an unconditional
resignation, 	"or 	the district will 	have 	to 	take other 	action
based 	upon your 	inability 	to 	complete your 	spring
assignment."66
6Although not 	clear 	from the 	record, 	it 	appears 	that
Paige's 	assignments were covered, 	during his 	absence, 	by a
substitute.
11

Paige 	submitted 	a 	second 	resignation on April 	22, 	attached
to 	a 	letter 	in which he 	took 	issue with 	the 	notion 	that
conditional 	resignations were not 	permitted. 	He 	added 	that, 	in
order 	to 	preclude 	any 	adverse 	action 	on 	his 	employment 	by 	the
District, 	he was 	submitting 	a 	second 	resignation, 	to be
effective April 	22, 	but 	that 	such did not 	"vitiate my
previously 	submitted documents 	and 	in 	no way waive 	any 	rights 	I
might 	have." 	He 	requested 	that 	the 	entire 	issue 	be 	presented
to, 	and heard before, 	the board of education. 	Finally, 	he
asked 	that 	the matter 	be discussed with his 	union, 	and 	that 	it
act 	as 	coordinator 	in the matter.
By 	letter dated May 	10, 	1985, 	James 	Johnson 	informed Paige
that 	the 	board 	had 	accepted 	his 	resignation, 	effective
April 	22, 	at 	its meeting of May 9. 	No mention was made 	as 	to
whether 	the 	board 	had discussed 	the matter 	of 	the 	conditional
resignation 	or whether 	he would 	be 	reinstated upon 	his 	return.
There were 	no 	communications 	between 	Paige 	and 	District
administrators 	between May 10 	and 	early June, 	1985.
On June 2, 	1985, 	Paige wrote a 	letter to Roth, 	and sent
copies 	to 	other 	District 	administrators 	including 	James
Johnson, 	requesting 	that 	his 	employment with 	the 	District 	be
reactiviated 	and 	that 	he 	be 	assigned 	his 	previous 	duties
effective July 	1, 	1985, 	by which time his 	temporary assignment
in Monterey would 	have 	been completed. 	There was 	no 	response
from Roth or 	anyone 	else 	in 	the 	administration.
12

Paige 	attempted 	to 	contact 	Roth 	by 	telephone 	on 	July 	1,
1985, 	but was 	told 	by 	a 	secretary 	that 	he would 	be 	on vacation
until 	the 	first 	part 	of 	August. 	She 	told 	Paige 	that 	Fraley,
who was 	filling 	in 	for 	Roth, 	would 	return the 	call. 	When
Fraley 	returned 	the 	call 	on 	July 	3, 	Paige 	told 	him he was 	ready
to be 	"reactivated" 	to 	his 	former 	position. 	In 	reply, 	Fraley
said 	that 	he 	lacked 	the 	authority 	to 	accomplish 	that, 	but 	that
he 	(Paige) 	should 	talk 	to 	Henderson 	and 	Roth.
Paige 	then 	called 	Henderson 	the 	same 	day. 	She 	told 	him
that 	Roth did 	the 	hiring 	and 	the 	firing 	in 	the 	Program 	and 	that
she was 	powerless 	to 	act 	on 	the 	matter.
Not 	having 	received 	a 	response 	from Roth, 	Paige 	again wrote
to him on July 30, 	1985, 	advising 	him of 	his 	availability 	for
reinstatement 	and 	renewing 	his 	requests. 	In 	addition 	to
stating 	his 	desire 	to 	be 	reactiviated 	to 	his 	former 	position,
Paige 	asked 	that 	his 	name 	be 	restored 	to 	the 	list 	of
substitutes 	for 	Traffic Violator 	School 	and 	drug 	abuse 	classes,
areas 	in which 	he 	had 	taught 	before 	and 	was 	credentialed 	to
teach. 	Although Paige 	asked 	for 	a 	timely 	response, 	Roth did
not 	reply until 	September 	18, 	1985.
In the 	interim, 	on August 	9, 	1985, 	Paige 	filed 	a 	complaint
with 	the 	Department 	of 	Fair 	Employment 	and 	Housing, 	alleging
racial 	and 	sex discrimination 	and 	unfair 	labor 	practices. 	In
support 	of 	such charges, 	Paige 	included 	allegations 	of
retaliation 	by Henderson 	and 	others 	because 	of 	his 	union
activity described above. He filed an identical complain	dentical complaint	t
13

labelled 	"Discrimination Complaint/Grievance" 	- with 	the
District's 	governing board, 	leaving 	copies 	at 	the 	appropriate
office. 	Also 	included was 	a 	claim that 	he was 	forced 	to 	resign
his 	position 	as 	a 	result 	of 	a 	conspiracy between Henderson 	and
Roth. 	Paige 	received no 	response 	from the District 	to 	his
"Complaint/Grievance." 7
Roth's 	entire 	response 	to 	Paige's 	summer 	correspondence
consisted 	of 	the 	following words 	in 	a 	letter 	dated
September 18, 	1985:
I 	have 	reviewed your 	application 	for
re-employment. 	You 	have 	not 	been 	selected
as 	a 	teacher 	for 	the 	1985/86 	school year.
No mention was 	made 	regarding 	Paige's 	request 	to 	be 	restored 	to
the 	substitute 	list, 	nor was 	an explanation given 	for 	the
denial 	of 	employment, 	or 	for 	the delay in 	responding.
Through his 	union, 	Paige 	filed 	a 	formal 	grievance 	on
September 	26, 	1985, 	requesting 	reinstatement 	to 	remedy the
District's 	alleged 	retaliatory conduct. 	The 	District 	refused
to 	entertain 	the 	grievance 	on 	the 	grounds 	that 	Paige was 	no
longer 	"an employee" 	of 	the District, 	as defined by the
collective 	bargaining 	contract.
James 	Johnson, 	by now District 	Superintendent, 	did 	allow
Paige and his union 	representative, 	Raymond Lopp, 	to meet
informally with Assistant 	Superintendent 	of 	Continuing
Education Tom Johnson, 	about 	the dispute. 	Tom Johnson was
7 No 	evidence was 	offered 	regarding 	the 	resolution 	of 	the
claim by the 	Department 	of 	Fair 	Employment 	and 	Housing.
14

Roth's 	immediate 	superior.
In 	the course of 	that discussion, 	occurring 	on 	about
October 	1, 	1985, 	Tom Johnson stated that 	the extent of his
investigation 	into 	Paige's 	charges 	consisted 	of 	his 	review of
documents 	to 	see 	"if 	the papers were 	in order," 	and that he had
not 	spoken 	to 	any witnesses. 	Johnson did 	acknowledge 	that 	his
review 	indicated 	that 	the 	supervisors 	and 	the 	administrators
had 	"done 	something wrong," 	but 	stated 	that 	he was 	not 	about 	to
take 	disciplinary 	action 	against 	them, 	nor would 	he 	reinstate
Paige. 	He 	explained 	that 	he 	and his wife 	had been very good
friends 	with 	Henderson 	since 	she 	had 	begun her 	employment with
the District.
Paige was 	not 	offered 	employment 	in 	any capacity with 	the
District 	subsequent 	to 	the 	above date, 	nor was 	he 	informed 	that
he could 	teach as 	a 	substitute. 	No 	legitimate 	reasons were
ever 	given 	to 	Paige 	for 	the District's 	refusal 	to 	reinstate 	him.
The 	District 	did 	not 	call 	any witnesses 	to 	testify 	about
the 	events, 	and offered no documents 	other 	than 	a 	collective
bargaining 	agreement, 	in support of 	its 	case.
III. 	DISCUSSION
Section 3543.5(a) 	of 	the Act 	prohibits discriminatory
action 	against 	employees 	for 	engaging 	in conduct 	protected 	by
the EERA, 	including,
[T]he right to form, 	join, 	and participate
in 	the 	activities 	of 	employee organizations
of 	their 	own choosing 	for 	the purpose of
representation on 	all matters 	of
employer-employee 	relations
15