PERB Decision No. 0792E

Full text

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INGLEWOOD 	TEACHERS 	ASSOCIATION,
Charging 	Party,
V.
INGLEWOOD 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	LA-CE-2503
PERE 	Decision 	No. 	792
February 	15, 	1990
Appearances: 	Schwartz, 	Steinsapir, 	Dohrmann 	& 	Sommers 	by 	Margo
A. 	Feinberg, 	Attorney 1 	for 	Inglewood .Teachers 	Association; 	Grant
& 	Duncan 	by 	Artis 	C. 	Grant, 	Jr. 1 	Attorney, 	for 	Inglewood 	Unified
School 	District.
Before 	Hesse, 	Chairperson; 	Craib 1 	Shank 	and 	Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERE 	or 	Board) 	on 	exceptions 	filed 	by 	the
Inglewood 	Unified 	School 	District 	(District) 	to 	a 	proposed
decision 	of 	a 	PERE 	administrative 	law 	judge 	(ALJ). 	Two 	issues
were 	raised 	by 	the 	District 	in 	its 	exceptions. 	The 	first 	issue
is 	whether 	certificated 	employees 1 	Vincent 	Combs 	(Combs) 	and
Robert 	Bankhead 	(Bankhead), 	were 	dismissed 	by 	Inglewood 	High
School 	(IHS) 	Principal 	Lawrence 	Freeman 	(Freeman) 	from 	their
extra-duty 	coaching 	assignments 	because 	of 	their 	concerted
activity 	involving 	a 	dispute 	about 	coaching 	stipends. 	The
District 	argues 	that 	the 	coaches 	should 	not 	have 	been 	represented
by 	Inglewood 	Teachers 	Association 	(ITA 	or Association) 	in 	the
unfair 	practice 	proceeding 	since 	coaches 	were 	not 	explicitly
listed 	in 	the 	parties' 	collective 	bargaining 	agreement. 	A
* * * OVERRULED IN PART by Alliance Marc & Eva Stern Math & Science High
School, et al. (2021) PERB Decision No. 2795 * * *

connected 	procedural
	issue
	is
	whether
	the
	ALJ
	properly
	allowed
the 	Association's
	complaint
	to
	be
	amended
	during
	the 	hearing.
The
	second
	issue
	is
	whether
	Principal
	Freeman
	was
	acting 	as
	an
agent
	of
	the
	District
	when
	he
	filed
	a
	civil
	lawsuit
	against
	ITA
and
	various
	ITA
	members.
The
	ALJ
	found, 	as
	to
	the 	dismissal
	of 	the
	coaches
	and
	the
filing
	of 	the
	civil
	lawsuit,
	that
	the
	District,
	through
	Principal
Freeman,
	violated
	the 	Educational
	Employment
	Relations
	Act
	(EERA
or
	Act), 	section
	3543.5,
	subdivision 	(a).
1 He
	also
	found
	that
the
	District
	violated 	section
	3543.5,
	subdivision
	(c),
	and,
derivatively,
	subdivisions
	(a)
	and
	(b),
	by
	unilaterally
	changing
established 	practice
	for 	dismissing 	teachers
	from
	their 	extra-
duty 	assignment 	as 	coaches
	without
	just
	cause.
	For
	the 	reasons
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,
	subdivisions
	(a),
	(b)
and
	(c) 	provide:
It
	shall
	be
	unlawful
	for
	a
	public
	schoolemployer
	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 	coerceemployees 	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.
2

set 	forth 	below, 	we 	affirm 	in 	part 	and 	reverse 	in 	part 	the
decision 	of 	the 	ALJ.
DISCUSSION
Except 	as 	noted 	below, 	the 	ALJ's 	findings 	of 	fact 	are
supported 	by 	the 	record. 	Many 	of 	the 	ALJ's 	factual 	findings 	rest
on 	credibility 	determinations, 	to 	which 	the 	Board 	generally 	gives
deference 	on 	appeal. 	(Anaheim 	City 	School 	District 	(1984) 	PERB
Decision 	No. 	364a, 	at 	pp. 	3-4i 	Santa 	Clara 	Unified 	School
District 	(1979) 	PERB 	Decision 	No. 	104, 	at 	p. 	12.) 	The 	following
is 	our 	legal 	analysis 	applied 	to 	a 	capsulized 	version 	of 	the
pertinent 	facts 	derived 	from 	the 	ALJ's 	proposed 	decision 	and 	our
own 	review 	of 	the 	record.
The 	Coaches' 	Dismissal
Combs 	and 	Bankhead were 	teachers 	at 	IHS, 	members 	of 	ITA, 	and
had 	both 	coached 	in 	IHS's 	athletic 	program 	during 	fall 	1986, 	as
an 	extra-duty 	assignment. 	They 	had 	both 	been 	approved 	by 	the
school 	board 	to 	coach 	in 	the 	basketball 	program, 	which 	began 	in
November, 	1986. 	Those 	who 	participated 	in 	the 	coaching 	program
were 	generally 	paid 	a 	stipend 	at 	the 	end 	of 	the 	pertinent 	season.
Combs 	completed 	his 	coaching 	duties 	for 	the 	cross-country 	team
the 	third 	week 	in 	Octoberi 	Bankhead 	finished 	his 	football
assignment 	the 	end 	of 	October 	or 	beginning 	of 	November. 	By 	the
middle 	of 	November, 	none 	of 	the 	coaches 	had 	been 	paid. 	Both
Combs 	and 	Bankhead went 	to 	the 	District 	employee, 	who 	generally
processed 	the 	payment, 	and 	asked 	about 	their 	stipends. 	Both 	were
told 	that 	the 	stipends 	would 	not 	be 	processed 	as 	usual 	because
3

Freeman 	had
	not 	submitted
	the
	coaching
	stipends
	as
	part
	of 	the
school
	budget.
	Instead, 	the
	coaches
	were
	to
	be
	paid
	out
	of
student
	body
	funds,
	or
	some
	other
	fund.
	However,
	there
	was
apparently
	insufficient
	money
	in
	the 	student
	body
	fund
	in
November
	to
	pay
	the
	coaches
	for 	the
	preceding
	season.
When 	Combs
	and 	Bankhead
	learned
	that
	they
	would
	not
	be
	paid
in
	the
	usual
	way,
	they
	discussed 	the 	matter
	of
	pay
	with
	other
current
	and
	past
	coaches.
	During
	one 	such
	discussion
	in 	the
physical
	education
	office,
	Edward
	Brownless
	(Brownless),
	Athletic
Director
	and
	Dean
	of
	Students,
	walked
	in.
	He
	was
	disturbed
	that
the
	coaches
	would 	be
	discussing 	the 	matter
	among
	themselves
	and
expressed
	his
	anger 	over
	what 	he 	viewed
	as
	criticism
	of 	Freeman's
decision
	regarding
	pay.
	After
	a
	brief
	confrontation,
	Brownless
reported 	the 	coaches'
	discussion 	to
	Freeman. 	Freeman
	immediately
called
	all
	coaches
	to 	his 	office.
	During
	the
	brief
	meeting
	in
Freeman's
	office,
	Freeman
	berated 	the
	coaches
	for 	discussing
their
	salary 	questions 	with
	each
	other
	and
	forbade
	them 	from
doing
	so
	in 	the 	future.
	He
	also 	relieved
	Combs
	and 	Bankhead
	of
their
	basketball
	assignments
	for 	expressing 	concern 	over
	the
timing 	of
	their
	pay
	for 	the 	previous 	season.
	The
	gist
	of
	his
reasoning
	was
	that
	anyone
	who
	questioned 	the
	money,
	or
	needed
	the
money,
	did 	not
	need
	to
	coach.
	It
	was
	not
	clear
	whether 	Freeman
intended 	to 	dismiss
	Combs
	and 	Bankhead
	for 	the 	basketball 	season
or
	just 	until
	they 	were
	paid.
	However,
	they
	were 	never
	offered
reinstatement 	after
	being 	paid 	in 	the
	latter 	half 	of 	December.
Following 	the 	meeting,
	Combs 	and 	Bankhead 	turned 	in 	all
4

basketball-related 	items 	and 	did 	not 	coach 	the 	rest 	of 	the
basketball 	season.
The 	Association's 	initial 	charge 	on 	this 	issue 	alleged 	a
unilateral 	change 	in 	District 	practice 	and 	policy 	by 	removing
Combs 	and 	Bankhead 	from 	their 	coaching 	positions 	without 	cause.
The 	original 	complaint 	only 	addressed 	this 	theory. 	During 	the
first 	day 	of 	the 	hearing, 	the 	Association 	moved 	to 	amend 	the
complaint 	to 	include 	a 	retaliation 	allegation 	arising 	out 	of 	the
same 	facts 	surrounding 	the 	coaches' 	dismissal. 	The 	ALJ 	granted
the 	request 	over 	the 	District's 	objection.
The 	ALJ 	found 	that 	the 	District, 	through 	Freeman, 	retaliated
against 	Combs 	and 	Bankhead 	for 	acting 	in 	concert 	to 	determine 	the
timing 	of 	their 	payment, 	in 	violation 	of 	section 	3543.5,
subdivision 	(a). 2 He 	also 	found 	that 	the 	District 	violated
section 	3543.5, 	subdivision 	(c), 	and, 	derivatively, 	subdivisions
(a) 	and 	(b), 	by 	unilaterally 	changing 	established 	practice 	for
dismissing 	teachers 	from 	their 	extra-duty 	assignment 	as 	coaches
without 	just 	cause.
The 	District 	excepts 	to 	three 	areas 	of 	the 	proposed 	decision
in 	regard 	to 	the 	coaches' 	dismissal. 3
2The 	ALJ 	also 	found 	that 	the 	District's 	conduct 	could 	be
characterized 	as 	interference, 	thus, 	independently 	justifying 	a
section 	3543.5, 	subdivision 	(a) 	violation. 	This 	issue 	is 	not 	on
appeal.
3The 	District 	does 	not 	except 	to 	the 	finding 	of 	retaliation,
interference, 	or 	unilateral 	change 	except 	on 	procedural 	bases
(jurisdiction, 	standing, 	etc.).
5

1.
	The
	motion
	to
	amend
	the
	complaint.
First,
	the
	District
	argues
	that
	the
	ALJ
	improperly
	granted
the 	Association's
	motion
	to
	amend
	the
	complaint
	at
	the
	time
	of
the
	hearing.
	The
	District
	argues
	that
	the
	amendment
	was
	untimely
based
	on
	ITA's
	knowledge
	of
	the
	District's
	affirmative
	defense
that,
	since 	the
	coaches
	were
	not
	covered
	by
	the
	parties'
collective
	bargaining
	agreement,
	the
	District
	need
	not
	bargain
over
	any 	change
	in 	the 	timing 	of
	payment.
	It
	asserts
	th
	t
	ITA's
motion
	to
	amend
	to
	assert
	a
	retaliation
	theory
	was
	an
	effort
	to
defeat
	this
	affirmative
	defense.
	The
	District
	concludes
	that,
"[d]ue 	to 	the
	late
	date 	of 	the 	request 	for
	amendment,
	it
	is
	clear
that
	the
	amendment
	was
	only
	a
	sham."
The
	District
	nowhere
	discusses
	PERB
	Regulation
	32648
4
which
provides:
During
	hearing, 	the 	charging
	party
	may 	move
to
	amend
	the 	complaint
	by 	amending
	the
	charge
in 	writing, 	or
	by
	oral
	motion
	on
	the 	record.
If
	the
	Board
	agent 	determines
	that
	amendment
of 	the
	charge
	and
	complaint
	is
	appropriate,the
	Board
	agent
	shall
	permit
	amendment.
	In
determining 	the 	appropriateness 	of 	the
amendment,
	the
	Board
	agent
	shall
	consider,
among
	other 	factors, 	the
	possibility
	of
prejudice 	to 	the 	respondent.
The
	District,
	furthermore,
	makes 	no
	showing
	of 	prejudice, 	other
than 	to
	say
	that
	the
	late
	amendment 	"was
	clearly 	prejudicial 	to
respondent
	and
	therefore,
	improper."
Since 	the
	new
	theory
	was
	based
	on
	the
	same
	set
	of
	facts
alleged 	in 	the 	original 	complaint,
	it
	is 	difficult
	to 	determine
4PERB
	Regulations 	are 	codified 	at 	California 	Administrative
Code,
	title
	8, 	section
	31001
	et 	seq.
6

what, 	if 	any, 	prejudice 	resulted 	from 	the 	amendment.
Furthermore, 	as 	argued 	by 	the 	Association, 	the 	District 	was 	on
notice 	prior 	to 	the 	hearing 	that 	the 	amendment 	would 	be
requested, 	the 	pertinent 	witnesses 	appeared 	two 	days 	later, 	and
the 	witnesses 	were 	additionally 	recalled 	by 	the 	District 	two
months 	later 	when 	the 	hearing was 	concluded. 	The 	Board,
therefore, 	affirms 	the 	ALJ's 	granting 	of 	the 	motion 	to 	amend.
2. 	PERB's 	jurisdiction 	to 	hear 	the 	charge.
The 	District's 	second 	exception 	to 	the 	ALJ's 	findings
involves 	its 	contention 	that 	PERB 	lacks 	jurisdiction 	to 	determine
any 	alleged 	violation 	by 	the 	District 	of 	Combs' 	and 	Bankhead's
rights 	because 	coaches 	are 	not 	included 	in 	the 	scope 	of
representation 	in 	the 	parties' 	collective 	bargaining 	agreement.
The 	District 	asserts 	that 	even 	though 	Combs 	and 	Bankhead 	are
"employees" 	within 	the 	protection 	of 	EERA, 	ITA 	can 	represent 	them
only 	as 	teachers, 	or 	some 	other 	classification 	listed 	in 	the
parties' 	collective 	bargaining 	agreement. 	The 	District 	argues
that 	ITA 	cannot 	represent 	them 	as 	coaches 	because 	coaches 	are 	not
listed 	in 	the 	scope 	of 	representation 	clause. 	Without 	citing 	any
authority, 	the 	District 	asserts 	that:
[i]t 	is 	against 	public 	policy 	and 	established
labor 	policy 	to 	force 	a 	party 	to 	a 	CBA
[collective 	bargaining 	agreement] 	to 	deal
with 	an 	exclusive 	representative 	in 	one
forum, 	i.e., 	at 	PERB, 	when 	they 	are 	not
required 	to 	do 	so 	pursuant 	to 	the 	terms 	of
the 	agreement 	outside 	that 	forum.
7

(District's
	brief 	at
	p.
	11.)
	The
	District
	concludes
	that
	if
Combs
	and
	Bankhead
	were
	the 	charging
	parties,
	it
	would
	not
	be
faced 	with
	this
	dilemma,
	but
	does
	not
	elaborate
	on
	the
	dilemma.
This
	argument
	is
	specious 	both
	from
	a
	factual
	and
	legal
standpoint.
	Uncontroverted 	evidence
	in
	the 	record
	indicates 	that
the
	coaches
1
	salaries
	have
	regularly
	been
	negotiated
	by
	ITA
	in
bargaining 	sessions
	with
	the
	District.
	In
	fact,
	the 	coaches'
salary
	schedule
	was
	omitted
	from
	the
	parties'
	most
	recent
agreement,
	at
	the
	Association's 	request,
	because
	the
	District
refused 	to
	tie
	the
	coaches'
	salaries
	to
	the 	teachers
1
	wage
scale--a
	point
	which
	the
	District
	argues 	evinces
	ITA's
determination
	that
	coaches 	should 	not
	be
	included
	in 	the
	unit.
Furthermore,
	the
	District
	met
	with
	ITA
	leadership
	following
	the
dismissal
	of
	Combs
	and 	Bankhead, 	and
	ITA
	agreed
	to 	process 	the
Association
1 s
	grievance.
The
	District 	is
	also 	in 	error
	from
	a
	legal 	standpoint.
	As
the
	ALJ
	correctly
	pointed 	out,
	whether
	or 	not 	the
	position
	of
coach
	is 	listed
	in 	the 	recognition 	clause 	of 	the
	parties'
contract 	is
	of
	no
	consequence
	in
	this
	proceeding 	because
	at
	issue
is
	a
	change
	in
	a
	term
	and
	condition 	of
	employment
	for
	unit
members. 	Coaching
	is
	an
	extra-duty
	assignment 	performed 	by
bargaining 	unit
	members. 	Such 	an 	assignment
	offers 	unit
	members
an
	opportunity 	to 	earn 	extra
	compensation,
	a
	matter 	squarely
within 	the
	scope 	of 	bargaining.
In
	Mammoth
	Unified 	School
	District
	(1983)
	PERB
	Decision
	No.
371,
	the
	Board 	held 	that
	a
	district 	violated 	section 	3543.5,
8

subsections 	(a), 	(b), 	and 	(c) 	by 	unilaterally 	changing 	its 	policy
on 	the 	assignment 	of 	co-curricular 	coaching 	duties. 	(Id. 	at
p. 	12.) 	The 	parties 	in 	Mammoth 	had 	negotiated 	salary 	stipends
for 	coaches, 	which 	were 	included 	in 	the 	parties' 	agreement.
There 	is 	no 	indication 	in 	the 	Board's 	decision, 	however, 	that 	the
inclusion 	of 	the 	stipend 	was 	critical 	to 	its 	determination 	that
assignment 	of 	work 	beyond 	the 	normal 	workday 	to 	teachers 	is
logically 	and 	reasonably 	related 	to 	hours 	and 	wages. 	(Id. ,
proposed 	decision, 	at 	p. 	21; 	see 	also, 	Lincoln 	Unified 	School
District 	(1984) 	PERE 	Decision 	No. 	465, 	proposed 	decision 	at 	pp.
11-14 	(unilateral 	change 	found 	where 	district 	refused 	to 	bargain
over 	assignment 	of 	volunteer 	drivers 	to 	work 	previously 	performed
as 	overtime 	by 	district 	employees); 	Palos 	Verdes 	Peninsula
Unified 	School 	District 	(1979) 	PERB 	Decision 	No. 	96, 	at 	p. 	35
(extra 	hour 	assignments 	are 	mandatory 	subject 	of 	bargaining).)
Accordingly, 	the 	Board 	affirms 	the 	ALJ's 	ruling 	on 	this 	matter.
3. 	The 	inclusion 	of 	"Lawrence 	Freeman" 	as 	a 	heading.
The 	District 	also 	excepts 	to 	the 	ALJ's 	inclusion, 	as 	a
heading 	in 	his 	proposed 	decision, 	"Lawrence 	Freeman." 	The
District 	contends 	that:
Lawrence 	Freeman 	is 	not 	himself 	an 	issue 	of
fact 	in 	this 	case. 	Further, 	although 	there
are 	some 	issues 	involving 	alleged 	conduct 	by
Mr. 	Freeman, 	Mr. 	Freeman 	himself 	is 	not 	an
issue.
(District's 	brief 	at 	p. 	2.) 	This 	argument 	is 	frivolous. 	The 	ALJ
merely 	set 	forth 	background 	information 	in 	the 	factual 	section 	of
the 	proposed 	decision.
9

The
	Lawsuit
On
	March
	9, 	1987, 	Freeman
	filed
	a
	lawsuit
	against 	the
California
	Teachers'
	Association
	(CTA), 	ITA,
	a 	CTA/ITA
	staff
person,
	and
	nine
	District
	teachers
	who
	were
	active
	members
	of 	the
Association.
	The
	lawsuit
	sought
	damages
	for:
	( 1)
	the
distribution
	of
	a
	circular
	which
	alleged
	that
	Freeman
	had
threatened 	teachersi
	(2)
	the
	sending 	of
	a
	letter
	to 	the 	school
board 	regarding 	safe
	working
	conditionsi
	(3)
	the
	filing
	of
	a 	PERB
chargei
	and 	(4)
	comments
	by
	the 	teachers
	about
	the
	working
conditions
	at
	IHS
	under 	Freeman's
	administration.
	The
	original
complaint
	had
	five
	causes
	of
	action:
	(1)
	libel
	and
	slander;
	(2)
intentional 	infliction
	of 	emotional
	distress;
	(
3)
	fraudi
	(
4)
interference
	with
	contracti
	and 	(5)
	conspiracy.
	Although
	the
caption
	of 	the
	complaint
	did 	not
	identify
	Freeman
	by
	his
	title,
in 	the
	first
	paragraph 	of 	the
	complaint
	Freeman
	identified
himself
	as 	follows:
Plaintiff 	is
	a
	resident
	of
	Los
	Angeles 	County
and
	is
	employed 	by
	the
	Inglewood
	Unified
School
	District
	.
	as 	an
	administrator,assigned
	as
	principal
	of
	Inglewood
	High
School
	. 5
5As 	a
	result
	of 	successive 	demurrers, 	the 	complaint
	was
amended
	several 	times.
	By
	the 	time 	the
	ALJ's 	proposed
	decision
issued,
	Freeman 	had
	filed
	a
	third
	amended
	complaint 	which
	did 	not
contain 	the 	causes 	of
	action 	for 	fraud
	and
	intentional
	infliction
of 	emotional
	distress
	and 	which 	added
	the 	following 	language
	to
the 	identification
	paragraph 	quoted 	above:
	"Plaintiff 	is 	not,
however, 	and
	at
	no
	time 	herein
	has 	he 	even 	been, 	given
	by
	IUSD
the 	responsibility
	of 	representing
	IUSD
	in
	any
	labor 	dispute 	with
any 	employee
	or
	an
	[sic] 	collective 	bargaining 	unit 	representing
any 	employee 	of
	IUSD." 	As
	the 	record 	does 	not 	contain 	the
	first
or 	second
	amended
	complaints,
	we
	cannot 	determine
	at
	what
	stage
in 	the 	proceedings, 	or 	for 	what 	reason, 	the
	new
	language 	was
added.
10

The
	defendants
	were
	identified
	as
	the 	bargaining
	agent
	and
	parent
organization 	for
	the
	certificated
	unit, 	officers
	and
	directors
	in
the
	Association
1
	representatives
	of
	the 	Association,
	and
	teachers
at
	IHS.
In
	mid-March,
	all
	nine
	of 	the
	teachers 	received 	copies
	of
the
	complaint
	from
	the 	personnel
	office
	of
	the
	District.
	Eight
of
	the
	complaints
	were
	delivered
	through
	inter-District
	mail
	in
envelopes
	which
	indicated
	that
	the
	sender
	was
	''Personnel
Services"
	of
	the
	District.
	The
	ninth 	teacher
	was
	sent
	a
	copy
	of
the
	complaint 	through
	the
	United
	States
	mail,
	also 	in
	an
	envelope
which
	identified
	the
	sender 	as 	"Personnel 	Services" 	of
	the
District.
	Those
	who
	were
	sent 	the
	complaint 	through
	the
	inter
District
	mail 	system
	picked
	up
	the
	complaint
	in
	the 	corresponding
teacher
	mail
	box
	at
	the 	appropriate
	school.
	Testimony
	revealed
that
	a
	District
	employee
	accepted
	the
	copies 	of 	the 	complaint
from
	a
	process
	server
	and
	routed
	them
	to 	the 	appropriate 	schools,
where
	a
	District 	staff
	person 	placed 	the
	envelope
	in 	the
teachers'
	boxes. 	Testimony
	also 	revealed
	that 	this
	was
	the
	only
copy
	of 	the 	complaint 	received
	by
	the 	teachers.
	Two
	District
school 	board
	members
	were
	made
	aware
	of 	the 	existence 	of
	the
lawsuit
	by 	one
	of 	the 	affected 	teachers
	who
	~ontacted
	them
	after
receiving
	a
	copy
	of 	the 	complaint.
On
	or 	about 	April
	13, 	1987,
	ITA
	filed 	its
	amended
	unfair
practice
	charge 	in
	which
	it
	alleged 	for 	the
	first
	time
	that
Freeman 	had
	filed 	the 	civil 	lawsuit 	against
	ITA
	and
	the 	teachers.
On
	August 	3, 	1987, 	a 	PERB
	complaint 	issued 	based 	upon 	the
	amended
1 1

charge
	alleging,
	inter
	alia,
	that
	the
	District,
	through
	its
	agent
Freeman,
	filed
	the
	civil
	lawsuit.
	On
	August 	28, 	1987,
	the
District
	answered
	the
	PERB
	complaint 	denying,
	inter
	alia,
	the
agency
	allegations.
At
	the
	time
	of 	the 	hearing
	on
	the
	unfair 	practice
	charge,
	in
December
	1987
	and
	February
	1988,
	the
	status
	of
	the 	lawsuit
	was
not
	certain.
	ITA
	had
	filed
	three
	demurrers
	to
	all
	five
	causes 	of
action.
	A
	superior 	court
	judge
	sustained
	each
	of 	the
	demurrers
with 	leave
	to
	amend.
	A
fourth
	demurrer
	to
	the
	third
	amended
complaint
	was
	scheduled.
	Subsequent
	to 	the
	PERB
	hearing,
	the
entire
	action
	was
	dismissed 	with
	prejudice
	by 	Freeman.
At
	the
	outset
	of
	the 	hearing 	before 	the
	ALJ,
	the
	District
moved
	to
	exclude
	from
	the 	hearing
	room
	teachers
	who
	would
	be
testifying
	about
	their
	receipt
	of 	the
	complaint.
	The
	Association
represented
	that
	each
	would 	be
	testifying
	as
	to 	his 	or 	her
	own
experience 	in 	receiving 	the
	document.
	The
	ALJ
	denied
	the
District's
	motion.
	He
	held
	that
	if
	the 	witnesses
	were
going
	to
	testify
	about
	the
	same
	event,
	in
other
	words,
	they 	observed
	the
	same
	event
	and
they're 	testifying
	about
	it,
	then 	they
	will
be
	excluded. 	In 	cases
	where
	they're
	notgoing
	to
	be
	testifying
	about
	the
	same
	event
then 	they
	may
	stay 	in 	the
	room
	...
(Tr. 	Vol.
	II, 	at
	p. 	14.)
	The 	ALJ
	concluded
	that
	if
	two
witnesses,
	who
	had 	been
	present 	for 	testimony,
	were
	to 	give
testimony 	as
	to 	the
	same
	event,
	he 	would
	exclude 	the 	testimony.
In 	his
	proposed 	decision, 	the
	ALJ
	concluded
	that
	Freeman was
acting 	with 	the 	District's
	apparent 	authority
	when 	he
	filed 	the
lawsuit.
	He
	relied
	on 	the 	following 	factors:
	(1) 	Freeman 	was
12

carrying
	out
	a
	threat
	made
	to
	one
	of
	the
	Association's
	members,
on
	District
	premises,
	in 	his
	capacity
	as
	principal;
	(2)
	the
complaint
	describes
	Freeman
	in 	his 	capacity
	as
	administrator
	of
the
	District;
	(3)
	all
	of
	the
	allegations
	relate
	to
	Freeman's
conduct
	as
	principal,
	the
	employees' 	conduct 	as 	employees, 	and
ITA's 	conduct 	as
	a
	representative;
	(4)
	the
	conduct
	described
related
	to
	working
	conditions
	at
	IHS;
	(5)
	the 	lawsuit
	was
distributed
	through
	the
	school 	mail 	system,
	in
	district
envelopes,
	and
	"served"
	on
	the
	employees
	through
	their
	school
mailboxes;
	and 	(6)
	although
	the
	District
	was
	aware
	of 	the 	lawsuit
and
	its
	contents, 	for
	many
	months,
	it
	did 	nothing
	to
	disavow
	or
distance
	itself
	from
	the
	suit.
	The
	ALJ
	concluded
	that
	the
teachers
	named
	in
	the
	complaint
	were
	justified
	in
	their 	belief
that
	they
	were
	being
	sued
	by
	the
	District
	through
	Freeman. 	Thus,
he 	found
	that
	the
	District
	violated 	section
	3543.5,
	subdivision
(a),
	by
	carrying
	out
	a
	threatened 	legal 	action
	and
	prosecuting
that
	action
	without
	a
	reasonable
	basis.
The 	Agency
	of
	Freeman
The
	District
	excepts
	to 	the
	ALJ's
	finding
	that
	Freeman
	was
acting
	with 	the 	apparent
	authority
	of 	the
	District
	when
	he
	filed
the 	lawsuit.
6
The
	United
	States
	Supreme
	Court 	has
	held,
	and
	this
Board 	has 	followed
	its
	lead, 	that
	it
	is
	an
	unfair 	labor
	practice
6
The
	District 	filed
	four 	exceptions 	to 	the 	ALJ's
	finding
that 	the 	District 	violated 	section 	3543.5, 	subdivision 	(a) 	by
prosecuting 	the
	civil 	lawsuit. 	Resolution 	of 	the 	agency
	issue,
however, 	negates 	the 	necessity 	of 	dealing 	in 	detail
	with 	theremaining 	exceptions.
	They
	will
	be
	dealt 	with 	summarily.
13

for
	an
	employer
	to 	prosecute
	a
	baseless 	lawsuit
	with
	the
	intent
of
	retaliating
	against
	employees
	for
	their
	exercise
	of
	protected
rights.
	(Bill
	Johnson
1 s
	Restaurants
	v.
	NLRB
	(1983)
	461
	U.S.
	731
[113
	LRRM	
2647]i	
Rim
	of
	the
	World
	Unified
	School
	District
(Corcoran)
	(1986)
	PERB
	Order
	No.
	Ad-161.)
	In
	the
	case
	currently
before
	the
	Board,
	the
	District
	does
	not 	argue
	that
	the
	filing
	of
the 	lawsuit
	is
	not
	a
	potential 	violation
	of
	the
	Act
	but 	only
	that
the 	Association
	failed
	to
	demonstrate
	that
	Freeman
	was
	operating
as
	the
	District's
	agent
	when
	he
	filed
	his
	suit.
7
We
	agree.
The
	ALJ's
	finding
	of
	an 	agency
	relationship
	is
	flawed
	in
	two
respects.
	As
	explained
	below,
	his 	reliance
	on
	Antelope
	Valley
Community
	College
	District
	(1979)
	PERB
	Decision
	No. 	97
	as
	a
statement 	of
	PERB
	law
	on
	agency
	is
	misplaced. 	Furthermore,
rather
	than 	placing 	the
	burden
	of 	proof 	as
	to 	the
	agency
	issue
	on
the 	Association, 	the
	ALJ
	incorrectly
	placed 	the
	burden
	on
	the
District
	to 	rebut
	an 	agency
	relationship.
	The
	ALJ
	shifted 	the
burden 	of 	proof
	to 	the
	District
	based
	solely
	on
	the 	conclusory
allegation
	in 	the 	complaint, .derived
	from
	the
	second
	amended
unfair 	practice
	charge,
	that
	an 	agency
	relationship 	existed.
	He
then 	based
	his 	conclusion
	that
	the
	District
	was
	responsible 	for
the 	lawsuit
	on
	his 	finding
	that
	the
	employees
	thought 	the
District
	was
	responsible 	for 	the 	lawsuit.
7
The
	District 	also 	argued
	that 	the 	matter 	should 	have 	been
stayed, 	pursuant 	to
	Rim
	of 	the
	World
	Unified 	School
	District,
supra,
	PERB
	Order
	No.
	Ad-161.) 	However,
	that
	argument
	is
	moot
because 	the 	underlying 	court 	action 	has
	now
	been 	dismissed.
14

In 	reaching 	his 	conclusion on 	the 	agency 	issue, 	the 	ALJ
found 	that 	under 	Antelope, 	supra, 	it 	is 	a 	"settled 	labor 	law
principle 	that 	employers 	can 	be 	held 	accountable 	for 	acts 	of
supervisors 	and 	managers 	whether 	or 	not 	such 	acts 	are 	authorized
by 	the 	employer." 	(Proposed 	decision, 	p. 	53) 	He 	went 	on 	to
state 	that:
Although 	Respondent 	has 	offered 	some 	evidence
suggesting 	the 	District 	did 	not 	expressly
authorize 	Freeman 	to 	file 	the 	lawsuit, 	it 	has
offered 	little 	else 	than 	argument 	to 	negate 	a
finding 	that, 	in 	the 	eyes 	of 	the 	employees
defendants, 	Freeman was 	acting 	with 	apparent
authority.
(Emphasis 	in 	original.)
Applying 	the 	facts 	of 	the 	case 	to 	the 	rationale 	set 	forth 	in
Chairperson 	Gluck's 	opinion 	in 	Antelope, 	supra, 	he 	goes 	on 	to
state 	his 	case 	for 	agency 	as 	follows:
Several 	factors 	support 	the 	conclusion 	that
Freeman was 	acting 	with 	the 	District's
apparent 	authority 	in 	prosecuting 	the
lawsuit. 	As 	the 	Charging 	Party 	points 	out,
the 	civil 	action 	is 	an 	outgrowth 	of 	a 	threat
Freeman 	made 	to 	an 	employee 	in 	his 	capacity
as 	principal, 	while 	on 	District 	premises.
The 	moving 	papers 	filed 	by 	Freeman 	describe
him 	in 	his 	capacity 	as 	an 	administrator 	of
the 	District. 	Indeed, 	all 	of 	the 	allegations
in 	the 	complaint 	relate 	to 	Freeman's 	conduct
as 	principal, 	the 	employees' 	conduct 	as
employees, 	and 	the 	ITA's 	conduct 	as
representative 	of 	those 	employees.
Similarly, 	the 	allegations 	relate 	to 	subjects
that 	can 	be 	characterized 	as 	being 	inherently
related 	to 	working 	conditions 	of 	those
employees.
The 	lawsuit 	was 	distributed 	through 	the
school 	mail 	system 	and 	"served" 	on 	those
employees 	(except 	one) 	through 	their 	school
mailboxes. 	The 	markings 	on 	the 	envelopes
containing 	the 	complaint 	indicated 	the
contents 	were 	sent 	from 	the 	District's
15

central 	personnel 	services 	office. 	None 	of
the 	teachers 	were 	served 	at 	home 	or 	anywhere
but 	their 	work 	sites. 	Employees 	testified
they 	believed 	they 	were 	being 	sued 	by 	the
District, 	through 	Freeman. 	All 	felt 	they
were 	being 	sued 	because 	of 	their 	work-related
union 	activities.
Finally, 	although 	the 	District's 	governing
board 	and 	its 	superintendent 	were 	aware 	of
the 	lawsuit 	for 	many 	months 	before 	the
hearing 	in 	this 	matter, 	they 	did 	nothing 	to
disavow 	any 	interest 	or 	connection 	with 	it.
Neither 	did 	they 	instruct 	Freeman 	to 	do
anything 	to 	dispel 	the 	notion 	that 	the
District 	had 	any 	association 	with 	the 	legal
action. 	In 	view 	of 	all 	the 	circumstances,
the 	employees 	had 	just 	cause 	to 	believe
Freeman was 	acting 	as 	an 	agent 	of 	the
District 	in 	prosecuting 	the 	lawsuit.
The 	above 	quote 	is 	the 	ALJ's 	entire 	basis 	for 	finding 	that
an 	agency 	relationship 	existed 	between 	Freeman 	and 	the 	District.
A 	close 	look 	at 	Antelope, 	supra, 	however, 	reveals 	that 	it
was 	decided 	by 	two 	members 	of 	the 	Board, 	Chairperson 	Harry 	Gluck
and 	Member 	Raymond 	J. 	Gonzales 	in 	1979, 	when 	the 	Board 	consisted
of 	only 	three 	members. 	Member 	Moore 	did 	not 	participate 	in 	the
decision. 	While 	Members 	Gluck 	and 	Gonzales 	agreed 	that 	an 	agency
did 	exist 	on 	the 	facts 	of 	that 	case, 	they 	disagreed 	on 	the 	rule
that 	should 	determine 	agency 	in 	a 	labor 	relations 	situation 	under
EERA. 	Chairperson 	Gluck 	wanted 	to 	follow 	NLRB 	precedent, 	which
he 	stated 	as 	follows:
In 	the 	subsequent 	application 	of 	section 	2(2)
and 	2(13), 	the 	courts 	and 	the 	NLRB 	have 	held
the 	question 	of 	agency 	authority 	should 	be
resolved 	by 	determining whether 	the 	employees
had 	just 	cause 	to 	believe 	the 	supervisor 	or
manager 	was 	acting 	with 	the 	apparent
authority 	of 	the 	employer.
(Id. 	at 	p. 	10.)
16

Member
	Gonzales
	disagreed 	with
	this
	position
	and
	stated
	the
rule
	he 	would
	adopt
	and
	his
	rationale
	as
	follows:
I
	disagree
	with
	the 	Chairperson's
	assertion
that 	"historically
	accepted
	labor
	relationsprinciples
	of
	agency
	authority
	and
	principal
liability
	must 	be
	applied 	to
	cases
	arising
under
	the
	EERA." 	I
	believe
	that
	in
	some
situations
	a
	public
	school
	employer,
	defined
in 	section
	3540.
l(k)
	as
	"the
	governing 	board
of
	a
	school
	district,
	a
	school
	district,
	a
county 	board
	of 	education, 	or
	a
	county
superintendent
	of
	schools,"
	may
	be
	held
liable
	for 	the
	unlawful
	acts
	of
	some
	of
	its
subordinates.
	Governing
	boards
	are
responsible 	for 	the
	overall 	direction
	ofschool
	districts,
	but 	day-to-day 	decisions
and
	actions,
	which
	may
	directly 	affect
	the
organizational
	rights
	of
	employees,
	are 	often
made
	by
	subordinates 	without
	specificauthorization 	or
	ratification
	by
	the
governing 	board.
	It
	is
	reasonable
	that
	under
some
	circumstances
	employees
	may
	perceive
their
	employer
	as
	responsible 	for
	such
decisions
	and
	actions, 	regardless
	of 	whether
the
	governing 	board
	itself
	is 	directly
involved.
	Under
	other
	circumstances,
	such
	a
perception
	may
	be
	unreasonable,
	and
	it
	may
thus
	be
	inappropriate 	to
	attribute
	these
actions 	to 	the
	employer.
	The
	question
	is
	in
what
	situations
	should
	the
	employer 	be
	held
responsible 	for 	acts
	by
	subordinates
	which
are
	unlawful 	under
	section 	3543.5.
(Id.
	at
	p. 	32.)
Member
	Gonzales, 	noted 	the
	distinctions
	between
	the 	National
Labor 	Rel.ations 	Act
	(NLRA)
	and
	EERA
	that· justify 	this
	Board's
departure
	from
	NLRA
	precedent:
.
	the
	NLRA
	contains
	two
	provisions
specifically 	dealing 	with 	the
	agency
relationship
	between 	an 	employer 	and
	its
subordinates. 	Section
	2 ( 2 ).
of 	the
	NLRA
	[
Fn.
omitted]
	states 	that 	the 	term 	employer
"includes
	any 	person 	acting 	as 	an 	agent 	of
the-employer,
	directly 	or 	indirectly
	. 	"
and
	section
	2(13) 	provides 	that 	authorization
or 	subsequent
	ratification 	of 	specific 	acts
is
	not 	controlling 	in 	holding
	a
	person
17

responsible 	for 	his
	agent
1 s
	acts.
	The
	EERA
contains
	no
	comparable
	provisions.
	To 	me,
this
	indicates
	that
	the 	Legislature
	did
	not
intend
	this
	Board
	to
	adopt
	the
	private 	sector
rule
	without
	qualification,
	but
	rather
intended
	it
	to 	consider
	carefully
	the
situations
	in
	which
	it
	is
	reasonable
	to
attribute
	to
	a
	public
	school
	employer
responsibility
	for
	unlawful
	acts
	it
	has
neither
	expressly 	authorized 	or
	ratified.
(Id.
	at
	p.
	33.)
We
	note
	that
	Antelope
	does
	not
	establish
	a
	precedent
	since
the 	panel 	consisted
	of
	only
	two
	members
	who
	concurred
	in 	the
result
	in
	that
	case, 	but 	disagreed
	on
	the
	basis 	for 	the
	decision.
Subsequent 	cases
	have
	not 	discussed 	or
	distinguished
	between
	the
different
	approaches
	set 	forth 	in
	Antelope.
	The
	relevant
distinction
	between
	the
	two
	approaches
	lies
	in 	the
	difference 	in
the 	readiness
	with
	which
	each
	is
	willing 	to
	adopt 	wholesale
	the
private 	sector
	labor
	relations
	approach
	to 	the 	public
	sector
labor
	law
	context.
	While 	Gluck
	takes 	the
	position 	that 	private
sector
	labor
	relations 	principles
	"must 	be
	applied 	to 	cases
arising
	under
	EERA,
11
	Gonzales
	recognizes
	that
	the
	statutory
distinctions
	between
	the
	NLRA
	and
	EERA
	mandate
	a
	cautious
application
	of 	the 	"apparent 	authority" 	doctrine 	in 	the 	public
school 	labor 	relations
	context.
	We
	think 	that 	the
	Gonzales
approach
	is
	more
	reasoned 	than
	that
	presented
	by
	Chairperson
Gluck.
	We
	therefore 	exercise 	caution
	and
	restraint 	in 	our
analysis 	of
	this
	case 	under 	the 	apparent 	authority 	doctrine. 	In
any
	event,
	when
	the 	proper 	burden 	of 	proof
	is
	applied, 	the
evidence 	in 	the 	record
	is 	insufficient 	to 	support
	a
	finding 	of
agency 	under
	either 	the 	Gonzales 	or 	Gluck 	approach.
18

The 	burden 	of 	proof 	in 	unfair 	practice 	cases 	before 	PERB 	is
set 	forth 	in 	Regulation 	32178 	(California 	Administrative 	Code,
title 	8, 	section 	32178) 	as 	follows:
The 	charging 	party 	shall 	prove 	the 	complaint
by 	a 	preponderance 	of 	evidence 	in 	order 	to
prevail.
Furthermore, 	it 	is 	established 	California 	law 	that:
The 	burden 	of 	proving 	the 	existence 	of 	an
actual 	or 	ostensible 	agency 	as 	well 	as 	the
scope 	of 	the 	agent 1 s 	authority 	and 	the
principal 1 s 	ratification 	of 	the 	agent 1 s
unauthorized 	acts, 	rests 	upon 	the 	party
asserting 	the 	existence 	thereof 	and 	thereby
seeking 	to 	charge 	the 	principal 	upon 	the
representations 	of 	the 	agent.
(3 	Cal.Jur.3d, 	sec. 	165, 	pp. 	236-237)
Although 	Freeman, 	as 	principal 	of 	IHS, 	is 	an 	actual 	agent 	of
the 	District, 	the 	Association 	did 	not 	prove, 	by 	a 	preponderance
of 	the 	evidence, 	that 	he 	was 	acting 	within 	the 	scope 	of 	his
authority when 	he 	filed 	the 	lawsuit. 	The 	Association 	produced 	no
evidence 	to 	show 	that 	the 	District 	gave 	Freeman 	express 	authority
to 	file 	a 	civil 	lawsuit. 	Furthermore, 	we 	are 	unwilling 	to 	find
that 	such 	authority 	may 	be 	implied 	from 	the 	fact 	of 	Freeman's
employment 	as 	principal.
Neither 	does 	the 	evidence 	in 	this 	case 	justify 	a 	finding
that 	Freeman 	had 	ostensible 	authority 	to 	file 	the 	suit.
Ostensible 	or 	apparent 	authority 	must 	be 	established 	through 	the
acts 	of 	the 	principal; 	in 	this 	case, 	the 	District 	(Civil 	Code
sec. 	2317). 	To 	prove 	ostensible 	or 	apparent 	authority, 	the
Association was 	bound 	to 	establish 	representation 	by 	the
principal 	(the 	District) 	of 	the 	agency, 	justifiable 	reliance 	by
19

the
	party
	seeking
	to
	impose
	liability
	on
	the
	principal
	(the
teachers);
	and
	a
	change
	in
	position 	resulting
	from
	that 	reliance.
(Yanchor 	v.
	Kagan
	(1971)
	22
	Cal.App.3d
	544,
	549.)
	The
	only
testimony
	offered
	as
	proof 	of
	the
	District's
	involvement
	was
	that
of
	Ethel
	Murphy,
	an
	administrative 	secretary 	in
	personnel
	at
	IHS.
She
	testified
	that
	she
	received 	copies 	of
	the
	complaint
	from 	an
unidentified
	process
	server
	and
	put
	them
	in
	the
	regular
	school
mail
	to
	the 	teachers
	whose
	names
	were
	on
	the
	complaint.
	Since
one
	teacher
	was
	not
	at
	the
	school, 	but
	at
	home,
	she
	sent 	her
complaint
	through
	the 	mail. 	In 	sending
	the
	complaints 	through
school 	mail,
	Ms.
	Murphy 	was
	following 	her
	normal
	routine.
	She
further
	testified
	she
	frequently
	handles
	legal
	documents
	in
	the
same
	manner 	and
	that
	she 	informed
	no
	one
	at
	the
	school 	of
	what
she 	had
	done
	with 	the
	documents,
	since
	she
	was
	following
	her
normal
	procedure.
	Thus,
	the 	record
	reflects
	the
	entire 	extent
	of
the
	District's
	involvement
	with 	the 	lawsuit 	to
	be
	the
	receipt
	and
processing
	of 	mail
	for 	teachers 	in
	accordance 	with
	routine
procedures.
Neither
	do
	we
	find
	that
	the 	teachers
	had
	just
	cause
	to
believe 	that
	the
	District
	was
	involved
	in
	the 	lawsuit 	based
	on
the 	contents 	of 	the 	complaint
	and
	the
	mode
	of 	delivery.
	Under
California
	agency 	law, 	persons 	dealing 	with
	assumed
	agents 	are
bound
	at 	their 	peril
	to 	ascertain 	the 	nature
	and
	extent 	of 	the
agency
	relationship.
	Mere
	surmise 	as 	to 	the 	authority 	of 	an
agent
	is 	insufficient 	to
	impose
	liability
	on
	a
	principal 	based
	on
20

a
	theory
	of 	apparent
	authority.
	(Harris
	v.
	San 	Diego
	Flume
(1891)
	87
	Cal. 	526.)
In
	this
	case, 	the 	Association
	failed
	to
	prove
	that
	the
teachers
	took
	reasonable
	steps 	to
	ascertain
	whether
	Freeman
	was
in
	fact
	authorized
	to
	file
	a
	lawsuit
	on
	behalf
	of
	the
	District.
Although
	one
	teacher,
	Robert
	Dillen 	(Dillen),
	testified
	he 	spoke
to
	two
	District
	board
	members
	about
	the
	lawsuit, 	the 	record
	is
devoid 	of
	any
	indication
	as
	to
	what 	he
	asked
	them.
Neither 	did 	the 	Association
	prove
	that
	the
	District
	had
knowledge
	of
	the 	lawsuit,
8
proof 	of
	which
	was
	essential
	to
	a
finding
	that
	the
	District
	condoned
	or
	ratified
	the
	filing
	of 	the
lawsuit.
	Again,
	the
	only 	testimony
	proffered
	by
	the 	Association
and
	relied
	upon 	by
	the
	ALJ
	to
	establish
	the
	District
1 s
	knowledge
of
	the
	lawsuit
	was
	that
	of
	Dillen,
	a
	teacher
	named
	in 	the
lawsuit.
	The
	significance
	of
	Dillen
1 s
	testimony
	lies
	in
	what
	it
does
	not 	contain. 	Dillen
	testified
	only
	that
	he
	discussed 	the
lawsuit
	with
	two
	school 	board
	members.
	The
	Association 	did 	not
question 	Dillen
	as
	to 	the 	substance 	of 	the 	conversations
	he 	had
with
	either
	of 	these
	board
	members. 	Nor
	did 	the 	Association
	call
them
	as 	witnesses.
	Thus,
	there
	is
	nothing 	in 	the 	record
	to
establish
	whether
	Dillen
	informed
	the
	board
	members
	of 	anything
about 	the 	lawsuit 	other 	than
	its
	existence.
	There
	is
	no
	proof
that
	they
	knew
	of 	the 	contents 	of 	the 	lawsuit 	or 	the 	specific
8
The
	District
	had
	notice 	of 	the 	lawsuit
	when
	the 	unfair
practice
	charge 	in 	this
	case
	was 	amended
	to 	allege
	agency. 	Oncea
	complaint 	issued, 	the 	District, 	in 	its
	answer, 	denied
	its
involvement 	in 	the 	lawsuit. 
21

nature
	of
	the
	allegations.
	Neither
	is
	there
	testimony
	as
	to
whether
	the
	school
	board
	members,
	who
	were
	allegedly 	contacted
	by
Dillen,
	informed
	their
	fellow
	board
	members
	about
	the
	lawsuit.
The
	most
	important 	evidence
	required
	to
	be
	produced
	by
	the
Association 	to
	prove
	a
	prima
	facie
	case 	of
	agency
	on
	a
ratification
	theory
	was
	evidence
	that
	the
	District
	had
	official
notice, 	either
	actual
	or 	implied, 	of 	the 	contents
	of
	the 	lawsuit.
Proof 	of
	District's
	knowledge
	of
	the 	contents
	of
	the 	lawsuit
	was
essential
	to 	finding 	the
	District 	liable
	for
	filing,
	condoning
	or
ratifying
	it.
	Not
	only
	did 	the 	Association
	fail
	to
	call
	school
board
	members
	as
	witnesses
	to
	establish 	that
	knowledge,
	it
	failed
to 	ask 	Dillen 	the 	substance 	of 	the 	conversations
	he 	had
	with 	the
two
	board
	members
	he
	contacted.
The
	other 	witnesses
	who
	testified
	said
	nothing
	that
	would
justify
	imputing
	knowledge
	of 	the 	contents 	of 	the 	lawsuit
	to
	the
District
	board.
	Rex
	Fortune, 	the 	superintendent 	of 	the
	District,
testified
	he 	had
	seen
	a
	copy
	of 	the
	complaint
	at
	some
	point,
	but
that
	he 	had
	nothing
	to
	do
	with 	the 	lawsuit
	nor 	had 	he
	informed
the
	District
	board 	of
	its
	existence.
	This 	testimony
	is
uncontradicted.
	Freeman,
	who
	initiated
	the 	lawsuit,
	testified
	he
had
	not
	informed 	anyone 	on
	the
	District
	board
	or
	anyone
.else
about 	the 	lawsuit.
	This
	part
	of 	Freeman's 	testimony
	is
uncontradicted.
	Lynn
	Pineda, 	the 	lawyer
	for
	Freeman
	who
	prepared
the
	suit
	and
	filed
	it, 	testified
	he 	informed
	no 	one
	in 	the
District
	about 	the 	lawsuit.
	His 	testimony
	was
	uncontradicted.
22

In 	finding
	that
	an 	agency
	relationship 	existed,
	the
	ALJ
emphasized
	that
	at
	some
	point 	the
	District
	board
	became
	aware
that
	one
	of
	its
	employees
	filed
	a
	lawsuit
	and
	that
	the
	board
thereafter
	failed
	to 	"distance
	itself"
	from
	or
	"deny"
	its
involvement
	in
	it.
	Only
	if
	Freeman
	was
	holding
	himself 	out
	as
	an
agent
	of
	the
	District
	in
	connection with 	the
	lawsuit,
	and
	the
District
	was
	aware
	of
	that 	fact,
	would
	the
	District's
	silence
	be
sufficient
	to
	confer
	ostensible 	authority.
	(See
	Waldteufel 	v.
Sailor
	(1944)
	62
	Cal.App.2d
	577,
	581.) 	Notably,
	the
	third
amended
	complaint
	contains 	the
	following
	language
	following
	the
identification
	of
	the
	plaintiff
	Freeman
	as
	principal
	of
	IHS:
"Plaintiff 	is
	not,
	however, 	and
	at
	no
	time
	herein
	has
	he
	ever
been, 	given
	by
	IUSD
	the
	responsibility
	of
	representing
	IUSD
	in
any
	labor 	dispute
	with
	any 	employee
	or
	an
	[sic]
	collective
bargaining
	unit
	representing
	any 	employee
	of
	IUSD."
	Thus,
	at
least
	by
	the
	third
	amended
	complaint,
	Freeman
	himself
	asserts
	a
limitation
	on
	the
	scope
	of
	his 	authority.
Since
	we
	do
	not 	find
	that
	the 	Association
	proved
	that
	the
District
	was
	involved
	in
	or
	had 	any 	knowledge
	of 	the
	filing
	of
the 	lawsuit,
	we
	do
	not 	find
	that
	any
	duty 	arose
	on
	the
	part
	of
the
	District
	to
	disavow
	the 	lawsuit. 	·once 	the 	unfair 	practice
charge
	was
	filed
	and 	amended
	to 	allege
	an 	agency,
	the
	District
had
	notice 	of 	the 	lawsuit.
	However,
	in
	its
	answer
	to 	the 	unfair
practice
	complaint, 	the 	District
	denied 	any 	involvement
	in 	the
superior 	court 	proceeding. 	That 	denial 	not 	only
	militates
against
	a
	finding 	of
	ratification
	on
	the 	part 	of 	the 	school
23

board, 	but 	served 	the 	procedural 	function 	of 	casting 	the 	burden
upon 	the 	Association 	to 	prove 	the 	existence 	of 	agency 	by 	a
preponderance 	of 	the 	evidence.
In 	summary, 	there 	was 	a 	complete 	failure 	of 	proof 	by 	the
Association 	on 	the 	issue 	of 	agency. 	The 	Association 	had 	the
burden 	of 	proving 	and 	failed 	to 	prove 	that 	the 	District 	was
actually 	involved 	in 	the 	lawsuit, 	that 	the 	teachers 	could
reasonably 	believe 	the 	District 	was 	involved, 	or 	that 	the
District 	had 	knowledge 	of 	and 	ratified 	the 	lawsuit. 	It 	did 	not
meet 	its 	burden.
The 	facts 	that 	Freeman 	was 	the 	principal 	of 	the 	high 	school,
that 	he 	was 	not 	getting 	along 	with 	the 	teachers 	or 	the
Association, 	and 	that 	he 	filed 	a 	lawsuit 	against 	them 	are 	simply
insufficient 	to 	support 	a 	finding 	of 	agency. 	The 	ALJ's
conclusion 	that, 	because 	Freeman 	was 	principal 	of 	the 	high
school, 	the 	teachers 	could 	reasonably 	assume 	the 	District 	was
behind 	or 	in 	some 	way 	responsible 	for 	the 	lawsuit 	is 	untenable.
The 	District 	did 	not 	have 	the 	burden 	of 	proving 	its 	non
involvement.
The 	dissent's 	approach 	to 	the 	agency 	question 	is 	internally
inconsistent 	and 	its 	adaption 	of 	respondeat 	superior 	principles
to 	the 	labor 	law 	context 	overly 	simplistic. 	As 	the 	dissent
recognizes, 	both 	the 	Gluck 	and 	Gonzales 	opinions 	in 	the 	case 	of
Antelope 	Valley 	draw 	on 	the 	traditional 	agency 	principles 	of
apparent 	authority 	in 	looking 	to 	the 	reasonableness 	of 	the
employee's 	perception 	of 	the 	employer's 	responsibility 	for 	the
24

agent's 	actions. 	Additionally, 	the 	private 	sector 	labor 	law
cases 	and 	the 	Agricultural 	Labor 	Relations 	Board 	(ALRB) 9 cases
cited 	by 	the 	dissent 	draw 	on 	traditional 	agency 	principles 	of
apparent 	authority 	in 	imposing 	liability 	based 	on 	the 	acts 	of 	the
employer 	and 	reasonableness 	of 	the 	employee's 	belief 	that 	the
agent 	was 	acting 	or 	speaking 	on 	behalf 	of 	the 	employer. 	Having
cited 	these 	cases 	with 	approval, 	the 	dissent 	then 	insists 	that
the 	application 	of 	the 	doctrine 	of 	apparent 	authority 	is
appropriate 	only 	in 	contract 	cases, 	and 	that 	the 	proper 	analysis
should 	be 	under 	the 	tort 	doctrine 	of 	respondeat 	superior.
While 	the 	simplicity 	of 	application 	of 	the 	doctrine 	of
respondeat 	superior 	to 	the 	labor 	law 	context 	is 	appealing, 	there
are 	good 	reasons 	that 	the 	doctrine 	has 	not 	been 	applied 	in 	the
past 	and 	for 	declining 	to 	apply 	it 	here. 	The 	rationale 	for
application 	of 	the 	doctrine 	of 	respondeat 	superior was 	recently
explained 	by 	the 	California 	Supreme 	Court 	as 	follows:
"The 	principal 	justification 	for 	the
application 	of 	the 	doctrine 	of 	respondent
superior 	in 	any 	case 	is 	the 	fact 	that 	the
employer 	may 	spread 	the 	risk 	through
insurance 	and 	carry 	the 	cost 	thereof 	as 	a
part 	of 	doing 	business. 11 	[citation]
Although 	earlier 	authorities 	sought 	to
justify 	the 	respondeat 	superior 	doctrine 	on
such 	theories 	as 	"control 11 	by 	the 	master 	of
the 	servant, 	the 	master's 	11 privilege" 	in
being 	permitted 	to 	employ 	another, 	the 	third
party's 	innocence 	in 	comparison 	to 	the
master's 	selection 	of 	the 	servant 	or 	the
masters 	11 deep 	pocket 11 	to 	pay 	for 	the 	loss,
9 Notably, 	the 	Agricultural 	Labor 	Relations 	Act 	(ALRA)
contains 	language 	similar 	to 	the 	NLRA 	with 	respect 	to 	agency, 	and
the 	ALRB 	is 	statutorily 	mandated 	to 	follow 	NLRB 	precedent. 	In
contrast, 	PERB 	is 	not 	so 	mandated.
25

"the 	modern 	justification 	for 	vicarious
liability 	is 	a 	rule 	of 	policy, 	a 	deliberate
allocation 	of 	a 	risk. 	The 	losses 	caused 	by
the 	torts 	of 	employees, 	which 	as 	a 	practical
matter 	are 	sure 	to 	occur 	in 	the 	conduct 	of
the 	employer's 	enterprise 	are 	placed 	upon
that 	enterprise 	itself 	as 	a 	cost 	of 	doing
business 	. 	" 	John 	R. 	v. 	Oakland 	Unified
School 	District 	48 	Cal.3d 	438, 	450.
The 	facts 	of 	this 	case 	are 	unusual. 	Here, 	although 	the
factual 	underpinnings 	of 	Freeman's 	lawsuit 	arise 	out 	of 	his
employment, 	by 	his 	lawsuit 	he 	sought 	to 	vindicate 	purely 	personal
interests 	based 	on 	theories 	of 	interference 	with 	contract, 	libel,
slander, 	and 	conspiracy. 	No 	direct 	benefit 	would 	inure 	to 	the
District 	by 	virtue 	of 	either 	Freeman's 	filing 	or winning 	of 	the
lawsuit. 	The 	Association 	filed 	an 	unfair 	practice 	charge 	with
PERB 	attempting 	to 	hold 	the 	District 	responsible 	for 	the 	filing
of 	the 	lawsuit 	on 	an 	unfair 	practice 	charge 	theory, 	presumably
seeking 	a 	cease 	and 	desist 	order 	against 	the 	District 	and 	damages
consisting 	of 	the 	attorneys 	fees 	they 	incurred 	in 	defending
Freeman's 	superior 	court 	action. 	In 	our 	view, 	unfair 	labor
practice 	charges 	of 	this 	type 	are 	not 	within 	the 	normal 	range 	of
risks 	for 	which 	costs 	can 	be 	spread 	and 	insurance 	sought. 	Thus,
application 	of 	the 	respondeat 	superior 	doctrine 	is 	inappropriate.
10 In 	John 	R., 	the 	issue 	was 	whether 	the 	school 	district
that 	employed 	a 	teacher 	could 	be 	held 	vicariously 	liable 	for 	the
teacher's 	act 	of 	molesting 	a 	student 	under 	the 	doctrine 	of
respondeat 	superior. 	The 	Court 	held 	that: 	" 	. 	the 	doctrine
is 	not 	applicable 	in 	these 	circumstances 	and 	that 	while 	the
school 	district 	may 	be 	liable 	if 	its 	own 	direct 	negligence 	is
established, 	it 	cannot 	be 	held 	vicariously 	liable 	for 	its
employee's 	torts." 	48 	Cal.3d 	at 	441. 	See 	also 	Kimberly 	M. 	v.
Los 	Angeles 	School 	District 	(1989) 	215 	Cal.App.3d 	545.
26

Other 	Exceptions
The 	remainder 	of 	the 	District's 	exceptions 	can 	be 	dealt 	with
summarily. 	The 	District 	argues 	that 	the 	ALJ's 	failure 	to 	exclude
witnesses 	from 	the 	hearing 	room was 	prejudicial 	error, 	contending
that 	the 	witnesses 	in 	the 	hearing 	room 	"picked 	up 	the 	cue" 	that
they 	should 	testify 	that 	they 	thought 	that 	the 	District, 	and 	not
Freeman 	in 	his 	individual 	capacity, 	was 	suing 	them. 	Since 	we
find 	in 	favor 	of 	the 	District 	on 	the 	agency 	issue, 	we 	need 	not
address 	whether 	the 	ALJ's 	failure 	to 	exclude 	witnesses 	from 	the
hearing 	room 	was 	improper.
The 	District 	argues 	that 	PERB 	lacks 	jurisdiction 	to 	hear 	an
unfair 	practice 	charge 	based 	on 	the 	lawsuit 	prior 	to 	resolution
of 	the 	civil 	suit. 	Since 	we 	are 	dismissing 	that 	portion 	of 	the
unfair 	practice 	charge 	based 	on 	the 	filing 	of 	the 	lawsuit, 	having
found 	no 	agency, 	we 	need 	not 	decide 	this 	jurisdictional 	question.
The 	District 	also 	excepts 	to 	the 	ALJ's 	conclusion 	that 	there
was 	a 	gap 	in 	the 	evidence 	as 	to 	the 	financing 	of 	the 	lawsuit,
arguing 	that 	the 	testimony 	revealed 	that 	the 	District 	did 	not
finance 	the 	lawsuit. 	Since 	we 	find 	insufficient 	evidence 	in 	the
record 	to 	establish 	agency, 	we 	need 	not 	address 	this 	exception.
CONCLUSION
We 	conclude 	that 	the 	District 	retaliated 	against 	Combs 	and
Bankhead 	for 	engaging 	in 	protected 	activity; 	thus, 	violating 	EERA
section 	3543.5, 	subdivision 	(a). 	We 	also 	find 	that 	the 	District
27

violated
	section
	3543.5,
	subdivisions
	(a),
	(b) 	and
	(c)
	by
changing
	the
	policies
	and
	procedures 	of
	removing
	coaches
	from
their
	extra-duty
	assignments
	without
	first
	bargaining 	with 	the
Association.
	As 	we
	do
	not
	find
	that
	Freeman
	was
	acting 	as
	an
agent
	of
	the
	District
	in 	prosecuting 	the
	civil 	suit,
	we
	do
	not
find
	that
	the
	District
	violated 	section
	3543.5,
	subsection
	(a)
based
	on
	the 	lawsuit.
	Since
	we
	do
	not
	find 	the
	District
responsible 	for
	Freeman
1 s
	prosecution
	of
	the 	lawsuit,
	we
	reverse
the
	ALJ 1 s
	award
	to
	the 	Association
	of 	the
	legal
	fees
	incurred 	in
defending
	that 	suit
	and 	need
	not 	decide
	if
	PERB
	has
	the
	authority
to
	award
	fees 	incurred
	in
	a
	collateral
	proceeding.
REMEDY
PERB
	is
	granted
	broad 	remedial
	powers
	under
	EERA
	in 	order 	to
effectuate
	the
	purposes 	of 	the
	Act.
	Section
	3541.5,
	subdivision
(c)
	provides:
The
	board
	shall
	have
	the
	power
	to 	issue
	a
decision
	and
	order
	directing
	an
	offending
party 	to
	cease
	and
	desist
	from
	the
	unfair
practice
	and
	to 	take
	such
	affirmative 	action,including 	but 	not
	limited
	to.thereinstatement 	of
	employees
	with
	or withoutback pay, 	as
	will 	effectuate 	the
	policies
	of
this
	chapter.
The
	Board
	is
	permitted
	"[t]o
	take
	such
	other 	action
	as
	the
	board
deems
	necessary 	to 	discharge
	its
	powers 	and
	duties
	and
	otherwise
to 	effectuate 	the 	purposes 	of
	this 	chapter." 	(Section 	3541.3,
subdivision 	(n).)
	Pursuant 	to 	these
	powers 	and
	duties,
	we
	issue
the 	Order
	that
	follows.
28

ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to 	EERA 	section
3541.S(c), 	it 	is 	hereby 	ORDERED 	that 	the 	Inglewood 	Unified 	School
District 	(District), 	its 	governing 	board 	and 	its 	representatives
shall:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Engaging 	in 	the 	following 	forms 	of 	conduct 	in
response 	to 	employees' 	protected 	activities: 	removing 	unit
members 	from 	their 	extra-duty 	assignments 	and 	threatening
employees.
2. 	Changing 	the 	policies 	and 	procedures 	governing 	the
removal 	of 	unit 	members 	from 	extra-duty 	coaching 	assignments
without 	first 	bargaining 	over 	the 	proposed 	changes 	with 	the
Inglewood 	Teachers 	Association 	(Association).
3. 	Interfering 	with 	the 	Association's 	right 	to
represent 	unit 	members 	in 	their 	employment 	relations 	with 	the
District.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS 	ACT:
1. 	Make 	whole 	Robert 	Bankhead 	and 	Vincent 	Combs 	by
compensating 	them 	in 	a 	monetary 	amount 	equalling 	what 	each 	would
have 	been 	entitled 	to 	had 	they 	coached 	the 	entire 	1986-87
basketball 	season, 	plus 	interest 	theieon 	at 	ten 	(10) 	percent 	per
annum.
2. 	Within 	thirty-five 	(35) 	days 	following 	the 	date
the 	Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post 	at 	all
29

work
	locations
	where
	notices
	to
	employees
	customarily
	are 	placed,
copies
	of
	the
	Notice
	attached
	as
	an
	Appendix
	hereto,
	signed
	by 	an
authorized
	agent 	of
	the
	employer.
	Such
	posting
	shall
	be
maintained
	for
	a
	period
	of
	thirty
	(30)
	consecutive
	workdays.
Reasonable
	steps
	shall
	be
	taken
	to 	insure
	that 	this
	Notice
	is
	not
reduced
	in 	size,
	defaced,
	altered
	or
	covered
	by 	an
	material.
3.	
Written
	notification
	of
	the 	actions
	taken
	to
comply
	with
	this
	Order
	shall
	be
	made
	to 	the
	Los
	Angeles
	Regional
Director
	of
	the
	Public
	Employment
	Relations
	Board
	in
	accordance
with 	her
	instructions.
Chairperson
	Hesse 	and
	Member
	Camilli 	joined
	in
	this
	Decision.
Member
	Craib's 	dissent
	begins
	on
	page
	31.
30

Member 	Craib, 	concurring 	and 	dissenting: 	I 	agree 	with 	my
colleagues 	that 	the 	Inglewood 	Unified 	School 	District 	(District)
violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA 	or 	Act)
by 	retaliating 	against 	Vincent 	Combs 	and 	Robert 	Bankhead 	for
engaging 	in 	protected 	activity 	and 	by 	unilaterally 	changing 	the
policies 	and 	procedures 	for 	removing 	coaches 	from 	extra-duty
assignments. 	However, 	I 	must 	dissent 	from 	their 	agency 	analysis
and, 	hence, 	from 	their 	conclusion 	that 	the 	District 	did 	not
violate 	EERA when 	its 	principal, 	Lawrence 	Freeman, 	instituted 	a
lawsuit 	against 	selected 	teachers, 	the 	Inglewood 	Teachers
Association 	(Association), 	and 	an 	Association 	staff 	person.
Although 	the 	majority 	purports 	to 	adopt 	the 	agency 	analysis
proposed 	by 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
Member 	Gonzales 	in 	Antelope 	Valley 	Community 	College 	District
(1979) 	PERB 	Decision 	No. 	97 	and, 	in 	the 	alternative, 	to 	apply
California 	agency 	principles, 	it 	does 	neither. 	Furthermore,
while 	initially 	the 	majority 	properly 	frames 	the 	issue 	as 	whether
Freeman was 	acting 	within 	the 	scope 	of 	his 	employment when 	he
filed 	the 	lawsuit, 	the 	analysis 	actually 	employed 	is 	inapposite.
As 	discussed 	below, 	under 	either 	of 	the 	approaches 	suggested 	by
Member 	Gonzales 	or 	Chairperson 	Gluck, 	or 	under 	traditional 	agency
principles, 	Freeman was 	acting 	within 	the 	scope 	of 	his 	employment
with 	the 	District 	at 	the 	time 	he 	filed 	the 	lawsuit; 	therefore,
the 	District 	is 	responsible 	for 	his 	actions.
Although 	the 	majority 	discounts 	the 	significance 	of 	the
facts 	relied 	upon 	by 	the 	administrative 	law 	judge 	(ALJ) 	in
31

reaching 	the 	conclusion
	that
	Freeman
	was
	acting
	with 	the 	apparent
authority
	of
	the
	District,
	it
	does
	not
	refute
	those
	facts.
	As
even
	the
	majority 	recounts
	the
	facts,
	we
	are 	presented 	with
	a
District
	principal
	who
	filed
	a
	lawsuit
	after
	threatening
employees
	that
	he 	would
	do
	so.
1
In
	the
	complaint
	that
	he
	filed
with
	the 	court,
	Freeman
	identified
	himself
	as
	a
	District
administrator
	and
	principal.
	The
	allegations
	in 	the
	complaint
relate
	to
	activities
	which
	took
	place
	at
	Inglewood
	High
	School
involving 	teachers, 	in
	their
	capacity
	as
	employees,
	and
	the
Association, 	in
	its
	capacity
	as
	the 	exclusive
	representative.
The
	conduct
	complained
	of
	was
	intrinsically
	related
	to 	the
teachers'
	working
	conditions
	and
	union
	activities.
	Freeman
attributed
	his
	damages
	to 	the 	following 	conduct:
	the
distribution
	of
	a
	circular
	which
	alleged
	that
	Freeman 	had
threatened 	teachers;
	a
	letter
	sent 	to 	the
	school 	board 	concerning
safe
	working
	conditions; 	the
	filing
	of
	a
	charge 	with
	PERB;
	and
finally,
	complaining 	about
	working
	conditions
	at
	Inglewood 	High
School 	under 	Freeman's
	administration.
DISCUSSION
Antelope 	Valley
	Community
	College
	District,
	supra,
	PERB
Decision
	No. 	97
	is
	the 	only 	case
	in
	which
	the
	Board 	has
specifically
	addressed 	the 	issue 	of
	an 	employer's
	responsibility
for 	unfair 	labor 	practices
	committed 	by
	supervisory 	or 	managerial
1
The
	District
	was
	also 	charged with 	another 	unfair 	practice
which 	arose 	out 	of 	Freeman's
	threat 	to 	file
	a
	lawsuit.
	The 	ALJ
found
	that 	threat 	to
	be
	a
	violation.
	The
	District
	has 	not
excepted 	to 	that 	determination 	and
	it
	has 	become
	final.
32

employees. 	Although 	Chairperson 	Gluck 	and 	Member 	Gonzales 	relied
on 	seemingly 	different 	analyses, 	each 	found 	that 	the 	District 	was
responsible 	for 	the 	unfair 	practice. 	(Id. 	at 	pp. 	13-16, 	32-35.)
In 	Antelope 	Valley, 	both 	Gluck 	and 	Gonzales 	found 	that 	a 	group 	of
employees, 	subsequently 	designated 	as 	managerial 	and
supervisorial 	by 	the 	district's 	board 	of 	trustees, 	were 	acting
with 	the 	apparent 	authority 	of 	the 	district 	when 	they 	interfered
with 	an 	organizing 	effort 	by 	an 	employee 	organization. 	At 	issue
was 	whether 	the 	organizing 	efforts 	by 	the 	managerial 	and
supervisorial 	employees 	were 	authorized 	by 	the 	district. 	In
concluding 	that 	those 	employees 	were 	acting 	with 	the 	apparent
authority 	of 	the 	district, 	both 	Gluck 	and 	Gonzales 	relied 	on 	the
following 	facts: 2
2Although 	Gonzales 	differed 	with 	Gluck 	on 	the 	appropriate
law 	to 	apply 	to 	the 	facts 	presented, 	nowhere 	in 	his 	concurrence
does 	he 	dispute 	the 	facts 	relied 	upon 	by 	Gluck. 	He 	states:
Under 	the 	facts 	in 	this 	case, 	the 	District
can 	reasonably 	be 	held 	responsible 	for 	the
actions 	of 	its 	designated 	management 	and
supervisory 	employees, 	and 	cannot 	now 	seek 	to
insulate 	itself 	by 	claiming 	that 	it 	could 	not
interfere 	with 	the 	supervisory 	employees'
organizational 	activities. 	The 	District 	had
notice 	of 	these 	actions 	and 	not 	only 	took 	no
steps 	to 	disassociate 	itself 	from 	them 	but
actively 	created 	an 	impression 	of 	support 	by
responding 	favorably 	on 	proposals 	made 	by 	the
designated 	employees 	on 	behalf 	of 	all
classified 	employees.
(Antelope 	Valley 	Community 	College 	District, 	supra, 	PERB 	Decision
No. 	97, 	at 	p. 	34; 	emphasis 	added.)
33

(1)
	The
	spectrum
	of
	actions
	engaged
	in
	by
	the
designees[
3 ]
	which
	go
	well
	beyond
	the
statutory 	right
	of
	self-organization
	afforded
supervisory 	personnel;
	(2)
	The
	open 	and
notorious
	manner
	in
	which
	those
	actions
	were
taken;
	and	
(3)	
The
	fact
	that
	the
	District 	at
no
	time,
	and
	particularly 	after
	the
	CSEA
[California
	School
	Employees
	Association]
charge
	was
	filed,
	did 	anything
	to
	disabuse
the
	wide-spread 	impression
	among
	classified
employees
	that
	the
	designees
	indeed
	spoke
	for
the
	District,
	which
	it
	could
	have 	done
	either
by
	withdrawing
	the 	designations,
	by
	publicly
acknowledging
	that
	the
	status
	of
	the
designees
	was
	in 	dispute
	and
	that
	as
	a
consequence
	of
	that
	dispute
	their
	actions
were
	not
	authorized 	or
	ratified
	by
	the
District,
	or
	by
	expressly
	disassociating
itself
	from
	those
	actions 	in
	any 	manner.
(Antelope 	Valley
	Community
	College
	District,
	supra,
	PERB
	Decision
No.
	97,
	at
	p. 	14.)
The
	difference
	between 	Gluck 	and
	Gonzales' 	approaches
	to
	the
agency
	determination 	arose 	over whether
	to
	directly
	adopt
	the
agency
	analysis
	utilized
	by
	the 	National
	Labor
	Relations
	Board
(NLRB). 	As
	discussed
	by
	the 	majority
	at
	page
	16
	in 	the
	present
case,
	Gluck
	applied 	the
	NLRB
	reasoning 	because
.
	to
	exclude
	principles
	of
	agency
	from
interpretation
	of 	the
	EERA
	would
	not 	only
ignore 	long-established 	principles
	of
	law,
but
	open
	the
	door
	to 	permitting
	employers
(school 	boards)
	to
	engage
	in 	unfair 	practices
through
	the 	actions 	of
	their
	administrators
and
	subordinates 	but 	escape
	liability
	through
an
	artificially
	narrow
	interpretation
	of 	the
word
	"employer".
(Id.
	at
	p. 	12.)
	Gluck
	applied 	the 	prevailing
	test 	utilized
	by
the
	NLRB:
	whether 	employees 	have
	just
	cause 	to 	believe
	that
	the
3
Gluck 	used 	the 	term 	"designees" 	to 	refer 	to 	the 	employees
designated 	managerial 	and
	supervisorial
	by
	the
	district
	who
participated 	in 	the 	unlawful 	organizing.
34

supervisor 	or 	manager 	is 	acting 	with 	the 	apparent 	authority 	of
the 	employer.
This 	test 	arose 	from 	language 	used 	by 	the 	United 	States
Supreme 	Court 	in 	interpreting 	the 	National 	Labor 	Relations 	Act
(NLRA), 	prior 	to 	its 	amendment 	in 	1947. 4 The 	court 	stated 	that
[t]he 	employer, 	however, 	may 	be 	held 	to 	have
assisted 	the 	formation 	of 	a 	union 	even 	though
the 	acts 	of 	the 	so-called 	agents 	were 	not
expressly 	authorized 	or 	might 	not 	be
attributable 	to 	him 	on 	strict 	application 	of
the 	rules 	of 	respondeat 	superior. 	We 	are
dealing 	here 	not 	with 	private 	rights
[citation] 	nor 	with 	technical 	concepts
pertinent 	to 	an 	employer's 	legal
responsibility 	to 	third 	persons 	for 	acts 	of
his 	servants, 	but 	with 	a 	clear 	legislative
policy 	to 	free 	the 	collective 	bargaining
process 	from 	all 	taint 	of 	an 	employer's
compulsion, 	domination, 	or 	influence. 	The
existence 	of 	that 	interference 	must 	be
determined 	by 	careful 	scrutiny 	of 	all 	the
factors, 	often 	subtle, 	which 	restrain 	the
employees' 	choice 	and 	for 	which 	the 	employer
may 	fairly 	be 	said 	to 	be 	responsible. 	Thus
where 	the 	employees 	would 	have 	just 	cause 	to
believe 	that 	solicitors 	professedly 	for 	a
labor 	organization were 	acting 	for 	and 	on
behalf 	of 	the 	management, 	the 	Board 	would 	be
justified 	in 	concluding 	that 	they 	did 	not
have 	the 	complete 	and 	unhampered 	freedom 	of
choice 	which 	the 	Act 	contemplates.
4In 	1947, 	the 	definition 	of 	"employer" 	was 	amended 	to
substitute 	"acting 	as 	an 	agent 	of 	the.employer" 	for 	the 	previous
language 	which 	defined 	employer 	to 	include 	persons 	"acting 	in 	the
interest 	of 	an 	employer. 11 	(2 	Morris, 	The 	Developing 	Labor 	Law,
2d 	Ed. 	p. 	1445.) 	Section 	2(13) 	of 	the 	NLRA was 	also 	added, 	which
provides:
[i]n 	determining 	whether 	any 	person 	is 	acting
as 	an 	"agent" 	of 	another 	person 	so 	as 	to 	make
such 	other 	person 	responsible 	for 	his 	acts,
the.question 	of 	whether 	the 	specific 	acts
performed 	were 	actually 	authorized 	or
subsequently 	ratified 	shall 	not 	be
controlling.
35

(International 	Association 	of 	Machinists 	v. 	NLRB 	(1940) 	311 	U.S.
72 	[7 	LRRM 	282, 	286] 	(employer 	found 	to 	have 	unlawfully
interfered 	with 	organizing when 	it 	lent 	support, 	through 	its
employees, 	to 	one 	union 	over 	another); 	emphasis 	in 	original;
cited 	with 	approval 	by 	Chairperson 	Gluck 	in Antelope 	Valley
Community 	College 	District, 	supra, 	PERB 	Decision No. 	97, 	at 	pp.
9-10.) 	Even 	though 	the 	agency 	provisions 	of 	the 	NLRA 	have 	been
amended, 	the 	Supreme 	Court's 	reasoning 	continues 	to 	be 	relied
upon 	by 	both 	the 	NLRB 	and 	the 	courts. 	(See 	e.g., 	Minnesota 	Boxed
Meat 	(1987) 	282 	NLRB 	1208, 	1213.) 	In 	Minnesota 	Boxed 	Meat, 	the
NLRB 	succinctly 	stated 	its 	position 	on 	agency:
The 	critical 	issue 	is 	"whether, 	under 	all
circumstances, 	the 	employees 	would 	reasonably
believe 	that 	the 	nonsupervisory 	employee was
reflecting 	company 	policy 	and 	speaking 	and
acting 	for 	management."
(Id., 	quoting 	Community 	Cash 	Stores 	(1978) 	238 	NLRB 	265; 	emphasis
added.) 	The 	NLRB 	has 	also 	stated 	that
. 	a 	principal 	is 	responsible 	for 	the 	acts
of 	its 	agent 	done 	in 	furtherance 	of 	the
principal's 	interest 	and 	within 	the 	scope 	of
the 	agent's 	general 	authority, 	even 	though
the 	principal 	may 	not 	have 	authorized 	the
specific 	act 	in 	question. 	It 	is 	enough 	if
the 	principal 	has 	empowered 	the 	agent 	to
represent 	it 	in 	the 	general 	area 	in which 	the
agent 	acted.
(Hampton 	Merchants 	Assn. 	(1965) 	151 	NLRB 	1307, 	1308.) 	In 	recent
cases 	interpreting 	the 	NLRA, 	the 	courts 	have 	found 	that 	acts 	of 	a
supervisor 	may 	be 	attributed 	to 	the 	employer 	"if 	the 	listening
employee 	reasonably 	would 	be 	justified 	in 	believing 	that 	the
supervisor 	was 	speaking 	for 	the 	employer." 	(Ballou 	Brick 	Co. 	v.
36

NLRB
	(1986)
	798
	F.2d
	339
	[123
	LRRM
	2121,
	2127)
	(employer
	liable
for
	low-ranking
	supervisor's 	anti-union
	remarks
	where
	it
submitted
	no
	evidence
	to
	show
	why
	the
	employees
	should
	not
	have
believed
	that
	the 	supervisor
	was
	acting
	on
	behalf
	of
	the
employer);
	emphasis
	added.)
5
Although
	the 	majority
	contend
	that
	the
	tests
	set 	forth
	by
Gluck
	and
	Gonzales
	were
	markedly
	different,
	in
	fact,
	their
differences
	were
	primarily
	semantic.
	While
	Gluck's
	test
	focused
on
	the
	employees'
	just
	cause
	for 	believing
	that
	the
	agent
	was
acting
	for 	the
	employer, 	Gonzales 	emphasized
	whether
	the
employees
	reliance
	was
	reasonable.
	He
	stated:
It
	is
	reasonable
	that
	under
	some
circumstances
	employees
	may
	perceive
	their
employer
	as
	responsible 	for
	such
	decisions
and
	actions, 	regardless
	of 	whether
	the
governing 	board
	itself
	is 	directly
	involved.
Under
	other
	circumstances,
	such
	a
	perception
may
	be
	unreasonable,
	and
	it
	may
	thus
	be
inappropriate 	to
	attribute
	these 	actions 	tothe
	employer.
	The
	question
	is
	in
	what
situations
	should
	the
	employer 	be
	held
responsible 	for 	acts
	by
	subordinates
	which
are
	unlawful 	under
	section
	3543.5.
(Antelope 	Valley
	Community
	College
	District,
	supra,
	PERB
	Decision
No.
	97,
	at
	p.
	32;
	emphasis 	added.)
6
Thus,
	Gonzales'
	test 	is
	not
5Some
	of 	the
	United
	States
1
	courts 	of 	appeal 	take
	a
	slightly
different
	approach 	and 	presume
	that
	when
	supervisors 	act, 	they
act
	on
	behalf 	of
	their
	employer.
	The
	employer
	is
	then 	required
to 	rebut 	that
	presumption
	by 	some
	means,
	e.g.
	by
	demonstrating
sufficient
	repudiation.
	(See
	NLRB
	v. 	Big 	Three
	Industrial
	Gas 	&
Equipment
	Co.
	(1978)
	579
	F.2d
	304 	(99
	LRRM
	2223, 	2226] 	and
	cases
cited 	therein.)
6Member
	Gonzales 	was
	concerned,
	at 	least 	in 	part,
	by
	the
organizational 	rights 	of 	supervisors 	under
	EERA
	which 	do
	not 	have
a
	counterpart 	in 	the
	NLRA. 	He
	found
	that 	the 	independent
interests 	of 	supervisors 	and
	rank-and-file 	employees 	may
	cause
37

significantly 	different
	from
	that
	applied
	py
	the
	NLRB.
	The
	focus
of
	both
	is
	on
	the
	reasonableness 	of
	the
	employees'
	belief 	that
the
	employer
	is
	responsible 	for 	the
	actions.
The
	California
	Supreme
	Court
	has
	also
	had
	occasion
	to
	apply
agency
	principles 	in
	the 	labor
	arena. 	In Vista
	Verde
	Farms
	v.
Agricultural
	Labor
	Relations
	Board
	(ALRB)
	(1981)
	29
	Cal.3d
	307,
the
	California
	Court, 	applying
	United
	States
	Supreme
	Court
precedent,
	held
	that,
	under
	the
	Agricultural
	Labor
	Relations
	Act
(ALRA),
	agricultural
	labor
	contractors, 	hired
	and
	compensated
	by
the
	employer,
	were
	agents 	of
	the
	employer,
	who
	remained
	liable
for 	the 	unfair 	practices
	of 	those
	contractors.
7
The
	Court
applied
	a
	test
	similar 	to
	that 	set 	forth 	in 	International
Association 	of
	Machinists
	v.
	NLRB,
	supra,
	7
	LRRM
	at
	p.
	286:
	if
the
	employees 	had
	just
	cause
	to 	believe
	that
	the 	supervisors
	were
acting
	on
	behalf
	of
	management,
	or
	if
	the
	employer 	has
	gained
	an
illicit
	benefit
	from
	the
	misconduct
	and
	realistically
	has
	the
ability
	either
	to 	prevent
	a
	repetition
	of
	such 	misconduct
	in
	the
future 	or 	to
	alleviate
	the 	deleterious 	effect
	of
	such
	conduct
	on
some
	infringement
	by
	supervisors
	on
	the 	rank
	and
	file
	which 	would
not 	necessarily
	be
	attributable 	to 	the
	employer.
	Therefore,
	he
declined 	to
	"apply
	a
	presumption
	that 	supervisors 	generally 	act
and 	speak 	for 	the 	employer." 	(Antelope 	Valley
	Community
	College
District,
	supra,
	PERB
	Decision
	No.
	97,
	at
	p. 	34.) 	That 	concern
is
	not 	applicable 	in 	the 	case 	currently 	before 	the
	Board.
7
The
	Court 	so
	held 	despite 	language 	in 	the
	ALRA
	that
	seems
to 	particularly
	exclude 	labor 	contractors
	from
	the 	definition 	of
employer. 	(See
	discussion 	in 	Vista 	Verde 	Farms 	v.
	ALRB,
	supra,
29
	Cal.3d 	at 	321-24.) 
38

the 	employees' 	statutory 	rights. 	(Vista 	Verde 	Farms 	v. 	ALRB,
supra, 	29 	Cal.3d 	at 	322. ) 8
Although 	the 	ALRA 	contains 	language 	mirroring 	the 	NLRA 	on
the 	issue 	of 	agency 	and 	requires 	the 	ALRB 	to 	follow 	NLRB
precedent, 	we 	must 	recognize 	that 	authority. 	The 	majority 	has
not 	adequately 	explained why 	the 	Board 	should 	not 	be 	bound 	by
either 	the 	approaches 	taken 	in 	Antelope 	Valley 	or 	NLRB 	precedent.
I 	would 	find 	that, 	under 	either 	approach, 	the 	District 	is
responsible 	for 	Freeman's 	actions 	because 	the 	Association 	and 	its
affected 	members 	reasonably 	believed 	that 	the 	District 	was
responsible. 	First 	of 	all, 	and 	most 	significantly, 	as 	principal,
Freeman was 	the 	agent 	of 	the 	District. 	Secondly, 	all 	of 	the
complained-of 	conduct 	arose 	out 	of 	the 	employment 	relationship.
Finally, 	the 	District, 	by 	circulating 	the 	complaint 	to 	the
8 The 	Court 	recognized 	that 	an 	employer 	should 	not 	be 	bound
in 	all 	instances, 	i.e., 	it 	is 	not 	"strictly 	liable" 	for 	the 	acts
of 	its 	agents. 	The 	court 	stated 	that
in 	exceptional 	circumstances 	an 	employer 	may
be 	able 	to 	escape 	responsibility 	for
misconduct 	of 	a 	labor 	contractor, 	just 	as 	it
may 	occasionally 	escape 	responsibility 	for
improper 	acts 	of 	a 	supervisor. 	[Citations. ]
Thus, 	for 	example, 	if 	an 	employer 	publicly
repudiates 	improper 	conduct 	and 	takes 	action
to 	reprimand 	the 	labor 	contractor 	and 	to
insure 	that 	the 	conduct 	does 	not 	coerce 	or
intimidate 	employees; 	the 	ALRB 	may 	find 	the
employer 	not 	guilty 	of 	an 	unfair 	labor
practice.
(Vista 	Verde 	Farms 	v. 	ALRB, 	supra, 	2 9 	Cal. 3d 	at 	3 28; 	see 	al so,
J.R. 	Norton 	Co. 	v. 	ALRB 	(1984) 	162 	Cal.App.3d 	692, 	696-99;
Superior 	Farming 	Co. 	v. 	ALRB 	(1984) 	151 	Cal.App.3d 	100, 	122-23.)
39

teachers
	through
	its
	internal
	mail 	system,
	led 	the
	recipients
	to
believe 	that
	the
	District
	authorized 	the
	actions.
Assuming,
	arguendo,
	that 	traditional
	labor
	law
	agency
principles
	are 	inappropriate,
	we
	must
	then
	look
	to
	California
agency
	principles
	to
	decide
	this
	case.
	While
	the 	majority
attempts
	to
	apply
	California
	agency
	principles 	to
	the
	facts
	of
the 	case,
	its
	disjointed
	agency
	analysis
	contains
	a
	discussion
	of
a
	variety
	of
	agency
	principles,
	none
	of
	which
	are
	appropriate.
The
	majority
	contends
	that
	it
	bases
	its
	conclusion
	that
Freeman
	was
	not
	acting 	within 	the
	scope
	of
	his
	employment
	on
	the
Association's 	failure
	to
	satisfy
	its
	burden
	of
	proof.
	I,
	of
course,
	agree
	that,
	pursuant
	to
	PERB
	Regulation
	32178,
9
the
burden 	of 	proving
	a
	case
	is
	on
	the
	charging
	party.
	However,
retaining
	the 	ultimate
	burden
	of 	proving
	a
	case
	does
	not
	prohibit
the
	burden
	from
	shifting 	after
	a
	threshold 	level
	has 	been 	met.
The
	Board
	routinely 	applies
	this
	approach
	in 	discrimination
cases.
	(See
	e.g.,
	Novato
	Unified
	School
	District
	(1982)
	PERB
Decision
	No.
	210.)
	Thus,
	despite 	the
	majority's 	contention 	to
the 	contrary, 	the
	ALJ
	did 	not 	improperly
	shift
	the
	burden
	to
	the
District 	after
	the 	Association
	made
	the
	initial
	showing
	required
under 	Antelope 	Valley
	and
	NLRB
	precedent. 	Furthermore, .the
majority
	does 	not
	restrict 	its
	analysis 	to 	the
	burden 	of 	proof
required
	under
	Member
	Gonzales' 	agency
	analysis. 	Instead, 	the
9PERB
	Regulations 	are 	codified 	at 	California 	Administrative
Code,
	title
	8, 	section
	31001
	et 	seq. 	For 	complete
	text 	of
Regulation
	32178 	see 	majority 	opinion 	at
	page 	19.
40

majority 	applies
	agency 	law which
	developed
	in 	the 	area
	of
contracts.
The
	majority 	requires
	that
	the 	Association
	prove
	the
District
	represented
	that
	the
	agency
	existed,
	that
	the
Association
	relied
	on
	that
	representation,
	and
	changed
	its
position
	as
	a
	result
	of
	that
	reliance.
	These
	requirements
	are
misplaced.
	Such
	requirements
	are 	appropriate
	in
	cases
	where
	the
aggrieved
	party
	seeks
	to
	enforce
	a
	contract,
	made
	by 	an
	agent,
with 	the
	principal.
	Here,
	the 	Association 	did 	not
	engage
	in
negotiations
	with
	Freeman,
	such
	that
	it
	would
	rely 	in
	advance
	on
his 	or
	the
	District's
	representation
	of
	agency.
	A
discussion
	of
the 	Association's
	reasonable
	reliance
	is
	inappropriate
	under
	the
facts
	of
	this
	case.
	There
	was 	no
	reason
	for, 	or 	opportunity
	to
"rely"
	on, 	any
	representation
	of
	agency.
	Freeman,
	after
threatening 	to
	do
	so,
	filed
	a
	lawsuit.
The
	only
	authority 	cited
	by
	the 	majority 	arose 	out 	of
	a
contract-type 	situation.
	(Yanchor 	v.
	Kagan
	(1971)
	22
	Cal.App.3d
544.)
	Yanchor
	is
	a
	case
	where 	an
	attorney
	executed
	an
	agreement,
on
	behalf
	of
	his
	client,
	with
	a
	defendant.
	That 	agreement
provided
	that 	his
	client,
	the
	plaintiff,
	.would
	not 	execute
	any
judgment
	obtained 	against 	that
	defendant.
	When
	the
	client 	later
so_ught
	to 	execute 	the
	judgment
	against 	that
	defendant,
	who
	had
not 	put
	on
	a
	defense 	because 	of 	the 	agreement, 	the 	defendant,
relying
	upon
	the 	agreement,
	moved
	for
	an
	order 	to 	enter
satisfaction
	of 	the
	judgment. 	The
	trial
	court 	granted 	the 	motion
and
	the 	appellate 	court 	affirmed.
	The
	appellate 	court, 	relying
41

on
	California 	Civil
	Code
	section
	2334,	
reasoned
	that,
	although
the 	attorney
	did 	not
	have
	expressed
	or
	implied
	authority
	to 	enter
into
	the
	agreement,
	he
	did
	have
	ostensible 	authority 	to
	do
	so.
The
	court
	found
	that
	the
	defendant's 	declaration
	adequately
asserted
	all
	of
	the
	facts
	necessary
	to
	prove
	estoppel,
	to
	which
the 	court
	analogized.
	It
	resolved
	contradictions 	in
	favor 	of 	the
defendant,
	assuming
	that
	the
	trial
	court
	had 	done 	so
	in
	reaching
its
	conclusion.
	(Yangor
	v.
	Kagan,
	supra,
	22
	Cal.App.3d
	at
	548-
551.)
10
The
	case
	currently
	before 	the
	Board
	is
	not
	analogous
	to 	that
presented 	to 	the 	court
	in
	Yangor
	because
	the 	Association
	did
	not
enter 	into
	a
	contract
	with
	Freeman 	which
	it
	sought
	to 	enforce
with 	the
	District.
11
Rather,
	the
	instant
	case
	is
	akin
	to
	holding
a
	principal
	responsible 	for 	the
	wrongful
	acts
	of
	its
	agents, 	e.g.
its
	agent's
	torts.
	The
	proper
	analysis 	requires 	the
	application
10
civil
	Code
	section
	2334
	provides:
A
principal
	is
	bound 	by
	acts
	of
	his
	agent,
under
	a
	merely
	ostensible 	authority, 	to 	those
persons 	only
	who
	have
	in
	good
	faith,
	and
without
	want
	of 	ordinary 	care, 	incurred
	a
liability
	or 	parted 	with 	value,
	upon
	the
faith 	thereof.
11
Nor
	is 	this
	case 	analogous
	to 	Harris
	v. 	San 	Diego 	FlumeCo.
	(1891)
	87
	Cal.
	526,
	the 	only 	other 	authority 	relied
	upon 	by
the 	majority 	for
	its
	assumed
	authority 	analysis. 	In 	Harris, 	the
plaintiff
	sought
	to 	recover 	$5,000 	as
	a
	brokerage 	fee 	for
negotiating
	a
	contract.
	The
	question 	addressed
	by
	the 	court
	was
the 	authority 	of 	the 	person
	who
	hired 	the
	plaintiff.
	The
	court
concluded
	that 	the 	plaintiff 	failed 	to 	prove
	that
	he
	relied
	on
any
	representations
	made 	by
	the 	principal 	sought 	to
	be 	charged.
Like 	the 	situation 	in
	Yangor,
	this 	case 	involved
	a
	contract 	to
which
	a
	party 	sought 	to 	bind 	the 	principal.
42

of
principles
of respondeat
superior,
not
the
contract
principles
relied
on by
the majority.
As
the majority
acknowledges,
as
chief administrator
of
Inglewood
High
School,
Freeman
is
the
actual
agent of
the
District.
Actual
agency
exists
"when
the
agent
is really
employed
by
the
principal."
(Civil
Code
sec.
2299.)
Generally,
a
principal is
bound
by,
12
and
liable
for,
the
acts
of
his
agent
within
the
scope
of
his authority,
since
such
acts
are considered
to
be
the
acts
of
the
principal.
(2
Witkin,
Summary
of
California
Law,
Agency,
at
pp. 78-79;
see
also
3
Cal.Jur.3d,
Agency,
at
p. 170.)
Thus,
the appropriate inquiry
is
whether
Freeman
was
acting within the
scope
of
his
employment when
he
filed
the lawsuit.
Civil
Code
section
2338
discusses the
principal's
liability
for acts
of
its
agent.
Under
section
2338,
a
principal
is
responsible to
third
persons
for the negligence of
his
agent
in the
transaction
of the business of the
agency,
including
wrongful
acts
committed by
such
agent
in
and
as
a
part
of
the transaction
ofsuch busineBs
..
This
is
California's codification
of the
common
law
principle
of
respondeat superior.
Under
the doctrine of respondeat
superior,
a
principal is
responsible to
a
third
person for
wrongful
acts
committed
by
his agent in
and as
a
part
of the business of the
12
The
cases which
discuss the
prima
facie requirements and
appropriate
burdens of proof for actual
and
ostensible authoritydeal primarily with binding the principal for the acts of the
agent,
i.e.,
for contracts signed
by
the agent. Those
cases
do
not discuss imposing
liability
on
the principal for the acts ofan agent.
43

agency,
	even
	if
	the
	employee
	acts 	in
	excess
	of
	his
	or 	her
authority
	or 	contrary
	to 	instructions;
	such
	conduct
	is
	not
inconsistent
	with
	a
	finding
	that
	the
	employee
	is
	acting 	within
the
	scope
	of
	his
	employment.
	(Foss 	v.
	Anthony
	Industries
	(1983)
139
	Cal.App.3d
	794, 	802;
	Alhino
	v.
	Starr
	(1980)
	112
	Cal.App.3d
158,
	174;
	Clark
	Equipment
	Co.
	v.
	Wheat
	(1979)
	92
	Cal.App.3d
	503,
520-21;
	2
	Witkin,
	Summary
	of
	California
	Law,
	Agency,
	at
	p.
	109;
see
	also
	Restatement
	2d, 	Agency,
	secs.
	219,
	243
	et
	seq.)
	If
	a
duty 	of 	the
	employer
	is
	violated
	by
	an 	employee,
	the
	employer
	is
liable
	the
	same
	as 	though 	he
	or
	she
	were
	guilty
	of
	the 	breach.
(Transcontinental	
&	
Western
	Air
	v.
	Bank
	of
	America 	(1941)
	46
Cal.App.2d
	708,
	713.)
	The
	act
	of
	the
	agent
	may
	be
	within 	the
scope
	of 	his 	or
	her
	authority
	even 	though
	it
	is
	malicious
	or
intentional.
	(Clark
	Equipment
	Co.
	v.
	Wheat,
	supra,
	92
	Cal.App.3d
503,
	520.)
	The
	courts
	have
	interpreted
	this
	section 	to 	include
both
	negligent
	and
	intentional 	acts
	of 	agents. 	(Id.
	at
	p. 	520-
521.
) 13
The
	test
	for
	whether
	an 	employee
	was
	acting 	within 	the
scope 	of
	his 	or 	her
	employment
	is
	whether
	the
	employee
	was
engaged
	in
	some
	act 	or 	execution 	of
	some
	purpose 	which,
	while 	not
within 	the 	actual 	duties 	of 	his 	or 	her
	employment,
	was
	an
incident
	of
	his 	or 	her 	duties
	as
	an 	employee. 	(Curcic 	v. 	Nelson
Display	
Co,	
(1937)
	19
	Cal.App.2d 	46,	
54.)
13
courts
	have 	found 	employers
	liable 	for 	even 	felonious 	acts
committed 	by
	their
	employees
	acting 	within 	the 	scope 	of
	their
employment. 	(See,
	e.g., 	Transcontinental	
&	
Western 	Air 	v. 	Bank
of 	America, 	supra,
	46
	Cal.App.2d
	at 	p. 	713.)
44

The 	courts 	have 	justified 	respondeat 	superior 	by 	reasoning
that 	the 	losses 	caused 	by 	the 	torts 	of 	employees, 	which 	are
undoubtedly 	likely 	to 	occur, 	should 	be 	borne 	by 	the 	employer 	as 	a
required 	cost 	of 	doing 	business. 	(Hinman 	v. 	Westinghouse
Electric 	Co. 	( 1970) 	2 	Cal. 3d 	956, 	959-60.) 	The 	theoretical
underpinnings 	and 	scope 	of 	respondeat 	superior 	were 	thoroughly
reviewed 	by 	the 	California 	Court 	of 	Appeal 	in 	a 	case 	involving
intentional 	fraud. 	(Rodgers 	v. 	Kemper 	Construction 	Co. 	(1975) 	50
Cal.App.3d 	608, 	618-619.) 	There 	the 	court 	stated:
The 	doctrine, 	which 	departs 	from 	the 	normal
tort 	principle 	that 	liability 	follows 	fault,
is 	an 	ancient 	one 	but 	its 	scope 	and 	stated
rationale 	have 	varied 	widely 	from 	period 	to
period. 	[ Ci tat ions.] 	It 	has 	been 	aptly
stated 	that 	"Respondeat 	superior 	has 	long
been 	a 	rule 	in 	search 	of 	a 	guiding
rationale." 	[Citation.]
In 	some 	respects 	this 	rationale 	is
akin 	to 	that 	underlying 	the 	modern 	doctrine
of 	strict 	tort 	liability 	for 	defective
products. 	[ Ci tat ions. ] 	. 	It 	is 	grounded
upon 	"a 	deeply 	rooted 	sentiment 	that 	a
business 	enterprise 	cannot 	justly 	disclaim
responsibility 	for 	accidents 	which 	may 	fairly
be 	said 	to 	be 	characteristic 	of 	its
activities." 	[Citations.]
One 	way 	to 	determine 	whether 	a 	risk 	is
inherent 	in, 	or 	created 	by, 	an 	enterprise 	is
to 	ask 	whether 	the 	actual 	occurrence 	was 	a
generally 	foreseeable 	consequence 	of 	the
activity. 	However, 	"foreseeability" 	in 	this
context 	must 	be 	distinguished 	from
"foreseeability" 	as 	a 	test 	for 	negligence.
In 	the 	latter 	sense 	"foreseeable" 	means 	a
level 	of 	probability 	which 	would 	lead 	a
prudent 	person 	to 	take 	effective 	precautions
whereas 	"foreseeability" 	as 	a 	test 	for
respondeat 	superior 	merely 	means 	that 	in 	the
context 	of 	the 	particular 	enterprise 	an
employee's 	conduct 	is 	not 	so 	unusual 	or
startling 	that 	it 	would 	seem 	unfair 	to
45

include
	the 	loss
	resulting
	from
	it
	among
other 	costs
	of
	the
	employer's
	business.
[Citations.]
	In
	other
	words,
	where
	the
question
	is
	one
	of
	vicarious
	liability,
	the
inquiry
	should
	be
	whether
	the
	risk
	was
	one
"that
	may
	fairly
	be
	regarded
	as
	typical
	of
	or
broadly
	incidental" 	to 	the
	enterprise
undertaken
	by
	the
	employer.
	[Citations.]
[T]he
	test
	for
	determining 	whether
	anemployer
	is
	vicariously
	liable
	for 	the
tortious
	conduct
	of
	his
	employee
	is
	closely
related
	to 	the
	test
	applied
	in
	workers'
compensation
	cases
	for
	determining
	whether
	an
injury
	arose 	out
	of
	or 	in
	the 	course 	of
employment.
	[Citation.]
	This
	must
necessarily
	be 	so
	because
	the
	theoretical
basis 	for 	placing 	the 	loss
	on
	the
	employer
	in
both
	the
	tort
	and
	workers'
	compensation
fields 	is
	the
	allocation
	of 	the
	economic
	cost
of
	an
	injury 	resulting
	from
	a
	risk
	incident
to
	the
	enterprise. 	[Citations.)
(Id.;
	emphasis
	in 	original;
	see
	also
	Witkin,
	Summary
	of
California
	Law,
	Agency,
	at
	p. 	110.)
Relying
	on
	these 	guidelines, 	C~lifornia 	courts
	have 	found
employers
	liable
	for 	the
	following
	employee
	conduct:
	fraud 	(Gift
v. 	Ahrnke 	(1951)
	107
	Cal.App.2d
	614,
	621-22);
	assault
	(Rodgers 	v.
Kemper
	Construction 	Co., 	supra,
	50
	Cal.App.3d
	608, 	621);
	libel
(Draper 	v. 	Hellman 	Commercial
	Trust
	and
	Savings
	Bank
	(1928)
	203
Cal. 	26).
	The
	Restatement 	of
	Agency
	holds
	an 	employer
	liable
	for
malicious 	prosecution.
	It
	states:
A
master
	is
	subject 	to
	liability
	for 	the
tortious 	institution
	or 	conduct 	of 	legal
proceedings
	by
	a
	servant 	acting 	within 	thescope 	of
	employment.
46

(Restatement 	of 	the 	Law 	2d, 	Agency, 	sec. 	246, 	at 	p. 	543
(1958). ) 14
Applying 	the 	doctrine 	of 	respondeat 	superior, 	as 	codified 	in
Civil 	Code 	section 	2338, 	the 	District 	is 	responsible 	for
Freeman's 	filing 	of 	the 	lawsuit. 	Freeman's 	conduct 	is 	most
analogous 	to 	the 	commission 	of 	a 	tort. 	While 	one 	may 	not 	feel
that 	it 	is 	"fair" 	to 	hold 	an 	employer 	responsible 	for
unauthorized 	tortious 	conduct, 	the 	courts 	have 	done 	just 	that.
In 	the 	seminal 	case 	of 	Rodgers 	v. 	Kemper 	Construction 	Co., 	supra,
50 	Cal.App.3d 	608, 	the 	court 	held 	an 	employer 	responsible 	for 	an
assault 	committed 	by 	one 	of 	its 	employers. 	The 	court 	stated
the 	test 	applied 	[to 	hold 	an 	employer 	liable
for 	assault] 	is 	virtually 	identical 	to 	that
used 	for 	an 	employee's 	negligent 	torts. 	If
the 	assault 	was 	motivated 	by 	personal 	malice
not 	engendered 	by 	the 	employment, 	the
employer 	is 	not 	vicariously 	liable; 	but
otherwise, 	liability 	may 	be 	found 	if 	the
injury 	results 	from 	"a 	dispute 	arising 	out 	of
the 	employment." 	[Citation.]
(Id. 	at 	p. 	621; 	see 	also 	Carr 	v. 	Wm. 	C. 	Crowell 	Co. 	(1946) 	28
Cal.2d 	652, 	654.) 	Thus, 	if 	Freeman 	had 	assaulted 	teachers 	in 	a
dispute 	arising 	out 	of 	their 	employment, 	the 	District 	would 	have
14 Comment 	(b) 	to 	section 	246, 	sets 	forth 	the 	analysis
necessary 	to 	hold 	an 	employer 	liable:
In 	order 	to 	cause 	the 	master 	to 	be 	civilly
responsible 	for 	the 	conduct, 	the 	act 	must, 	of
course, 	constitute 	a 	tort. 	Thus, 	in
malicious 	prosecution, 	the 	prosecutor 	must
have 	acted 	for 	a 	purpose 	other 	than 	that 	of
promoting 	justice. 	This 	fact 	does 	not
prevent 	the 	master 	from 	being 	liable,
although 	he 	has 	authorized 	only 	conduct
actuated 	by 	lawful 	motives. 	Ifj 	however, 	the
servant, 	although 	purporting 	to 	act 	for 	him
has 	no 	purpose 	of 	serving 	the 	purposes 	of 	the
master 	or 	of 	acting 	on 	account 	of 	his
business, 	the 	master 	is 	not 	liable.
47

been 	responsible. 	Likewise, 	the 	District 	is 	responsible 	for
Freeman's 	unlawful 	prosecution 	of 	a 	lawsuit, 	which 	arose 	out 	of
the 	employment. 	Nothing 	in 	the 	record 	suggests 	that 	Freeman
harbored 	any 	personal 	malice 	against 	any 	of 	the 	teachers 	for
their 	activities 	outside 	the 	employment 	arena. 	The 	evidence 	all
suggests 	that 	Freeman 	filed 	his 	lawsuit 	against 	the 	teachers 	and
the 	Association 	for 	employment-related 	activities 	which 	arose
because 	of 	his 	position 	as 	principal 	of 	Inglewood 	High 	School.
While 	the 	District 	prefers 	to 	distance 	itself 	from 	Freeman's
conduct, 	it 	is 	nevertheless 	liable 	under 	Civil 	Code 	section
2338. 15
15 Relying 	on 	a 	recent 	ruling 	by 	the 	California 	Supreme 	Court
(John 	R. 	v. 	Oakland 	Unified 	School 	District 	(1989) 	48 	Cal.3d
438), 	the 	majority 	contends 	that 	an 	employer 	should 	not 	be
vicariously 	liable 	for 	its 	employees' 	torts. 	(Majority 	opinion
at 	pp. 	25-26 	and 	fn. 	10.) 	The 	facts 	of 	John 	R. 	are 	markedly
different 	from 	those 	presented 	the 	Board 	in 	this 	case .. There, 	a
school 	teacher 	lured 	a 	student 	to 	his 	home 	on 	the 	pretense 	of
school 	work 	and 	then 	proceeded 	to 	sexually 	molest 	him. 	(John 	R.
v. 	Oakland 	Unified 	School 	District, 	supra, 	48 	Cal.3d 	at 	442-43.)
The 	court 	in 	no 	way 	altered 	the 	law 	of 	respondeat 	superior 	which
I 	have 	cited, 	nor 	expressed 	any 	disapproval 	of 	those 	cases 	which
have 	held 	employers 	responsible 	for 	the 	torts 	of 	their 	employees.
Quoting 	Rodgers 	v. 	Kemper 	Construction 	Co., 	supra, 	50 	Cal.App.3d
608, 	619, 	the 	court 	in 	John 	R. 	stated:
we 	think 	the 	teacher's 	acts 	here 	can 	only 	be
characterized 	as 	"so 	unusual 	or 	startling"
[citation] 	that 	vicarious 	liability 	cannot
fairly 	be 	imposed 	on 	the 	district.
(John 	R. 	v. 	Oakland 	Unified 	School 	District, 	supra, 	48 	Cal.3d 	at
fn. 	9.)
The 	filing 	of 	a 	lawsuit 	over 	matters 	arising 	out 	of 	the
employment 	relationship 	in 	no 	way 	compares 	nor 	is 	"so 	unusual 	or
startling" 	as 	a 	teacher 	sexually 	molesting 	a 	student.
48

The 	majority 	contends 	that 	Freeman's 	lawsuit 	sought 	to
vindicate 	purely 	personal 	interests 	and 	no 	direct 	benefit 	would
inure 	to 	the 	District 	by 	filing 	or 	winning 	the 	lawsuit.
(Majority 	opinion 	at 	p. 	26.) 	The 	District benefits 	from 	this
unfair 	labor 	practice 	in 	the 	same 	way 	it 	would 	benefit 	from 	any
other 	unfair 	practice. 	Employee 	and 	employee 	organization 	rights
which 	are 	expressly 	protected 	by 	EERA 	are 	violated. 	That
violation 	has 	a 	chilling 	effect 	on 	any 	future 	exercise 	of
protected 	activity. 	Here, 	the 	conduct 	complained 	of 	by 	Freeman,
in 	his 	lawsuit, 	was 	conduct 	protected 	under 	the 	Act. 	The
Association 	had 	to 	expend 	significant 	time 	and 	money 	to 	defend
against 	this 	lawsuit. 	The 	District 	directly 	benefits 	from 	the
burden 	imposed 	on 	the 	Association 	and 	its 	members 	because 	the
Association 	and 	its 	members 	may 	not 	again 	engage 	in 	such
protected 	activity 	without 	the 	risk 	of 	being 	sued 	by 	a 	District
employee.
The 	majority 	also 	contends 	that 	the 	Association 	did 	not 	meet
its 	burden 	of 	proving 	that 	Freeman was 	the 	agent 	of 	the 	District
at 	the 	time 	he 	filed 	the 	lawsuit. 	The 	burden 	of 	proof 	in 	cases
involving 	respondeat 	superior 	differs 	from 	that 	suggested 	by 	the
majority. 	Initially, 	the 	plaintiff 	must 	establish 	that 	an
employer-employee 	relationship 	existed 	at 	the 	time 	of 	the
wrongful 	act 	and 	that 	the 	act 	was 	done 	within 	the 	scope 	of
employment. 	(Adams 	v. 	American 	President 	Lines 	(1944) 	23 	Cal.2d
681, 	688); 	see 	also 	Largey 	v. 	Intrastate 	Radiotelephone. 	Inc.
(1982) 	136 	Cal.App.3d 	660, 	665, 	29 	Cal 	Jur 	3d 	(Rev) 	sec. 	122, 	at
49

pp.
	785-86.)
	The
	plaintiff
	or 	injured 	party
	can
	meet
	that
	burden
by
	introducing
	evidence
	from
	which
	the
	trier
	of
	fact
	can
reasonably
	infer 	that
	the
	wrongdoer
	was
	acting 	within 	the
	scope
of
	his
	or 	her
	employment.
	(Adams
	v.
	American
	President 	Lines,
supra,
	23
	Cal.2d
	at
	688.)
	The
	plaintiff
	is
	not
	required
	to
negate
	any
	anticipated
	defense.
	(Id.)
	The
	burden
	then
	shifts
	to
the
	employer
	to
	introduce
	evidence
	that
	the
	conduct
	was
	outside
the
	scope 	of
	employment.
	(Id.)
	The
	employer's
	failure 	to
produce 	evidence 	as
	to
	the
	terms
	of
	the
	relationship
	may
	justify
an
	adverse 	inference. 	(Id.)
The
	Association 	introduced 	evidence
	that
	Freeman
	was
	an
employee
	of
	the
	District.
	It
	also
	introduced
	evidence
	that
	the
conduct
	complained
	of
	by 	Freeman
	all
	arose 	out 	of 	the
	employment
relationship.
	Freeman 	had
	threatened 	to
	file
	the 	lawsuit 	while
on
	campus,
	during 	school 	hours.
	Freeman
	identified
	himself
	as
	a
District
	administrator 	in 	the 	complaint.
	The
	District 	circulated
Freeman's 	complaint 	through
	its
	internal
	mail 	system,
	in
envelopes
	which
	bore
	the
	District's
	personnel
	office's 	return
address.
	Furthermore,
	despite 	the 	evidence
	that 	at 	least
	two
	of
the
	District's
	board 	of
	trustees
	knew
	of 	the 	lawsuit, 	the
District
	never 	repudiated
	Freeman's
	action, 	prior 	to 	the 	fi1ing
of 	the
	charge 	before
	PERB.
16
Thus,
	since 	the 	Association 	provided 	evidence
	that
	Freeman
was
	an 	employee
	of 	the
	District
	and
	presented 	evidence
	that 	his
16
The
	majority
	makes 	much
	of 	the 	fact 	that 	the 	District
denied 	participation 	in 	{ts
	answer
	to 	the
	PERB
	charge 	(see
majority 	opinion 	at
	pp. 	11, 	20
	at 	fn. 	8), 	however,
	that
	answer
	is
no
	evidence 	at 	all
	as 	to 	repudiation 	because
	it
	is 	not 	only
untimely 	but 	is 	also 	not 	verified.
50

actions 	arose 	during 	the 	scope 	of 	his 	employment 	(the 	allegations
in 	the 	complaint), 	the 	burden 	shifted 	to 	the 	District 	to
introduce 	evidence 	that 	the 	conduct 	was 	outside 	the 	scope 	of
employment. 	It 	failed 	to 	do 	so.
Since 	the 	Association 	has 	met 	its 	burden 	of 	proving 	that
Freeman was 	acting 	within 	the 	scope 	of 	his 	employment 	under
either 	traditional 	labor 	law 	principles 	of 	agency 	or 	under
appropriate 	principles 	of 	California 	agency 	law, 	I 	would 	find
that 	the 	District 	is 	responsible 	for 	Freeman's 	actions. 	It 	is 	an
unfair 	labor 	practice 	to 	file 	a 	lawsuit 	without 	a 	reasonable
basis 	for 	the 	purpose 	of 	retaliating 	against 	the 	exercise 	of
protected 	activity. 	(Bill 	Johnson's 	Restaurants 	v. 	NLRB 	(1983)
461 	U.S. 	731 	(113 	LRRM 	2647]; 	Rim 	of 	the 	World 	Unified 	School
District 	(1986) 	PERB 	Decision 	No. 	Ad-162. 17 ) 	Thus, 	by 	filing 	and
prosecuting 	a 	lawsuit 	which 	lacked 	a 	reasonable 	basis, 	the
District 	violated 	section 	3543.5, 	subdivisions 	(a) 	and 	(b) 	of 	the
Act. 	The 	District 	should 	therefore 	be 	ordered 	to 	cease 	and
desist 	from 	such 	activity 	and 	to 	reimburse 	the 	Association 	and
its 	members 	for 	the 	costs 	of 	defending 	against 	the 	lawsuit. 	(See
Bill 	Johnson's 	Restaurants 	v. 	NLRB, 	supra, 	113 	LRRM 	at 	p. 	2654.)
17 Bill 	Johnson's 	and 	Rim 	of 	the 	World 	each 	specifically
addressed 	when, 	and 	if, 	a 	labor 	board 	must 	stay 	its 	proceedings
in 	order 	to 	allow 	a 	state 	court 	claim 	to 	go 	forward. 	The 	Bill
Johnson's 	court 	held 	that 	"although 	it 	is 	an 	unfair 	labor
practice 	to 	prosecute 	an 	unmeritorious 	lawsuit 	for 	a 	retaliatory
purpose, 	the 	offense 	is 	not 	enjoinable 	unless 	the 	suit 	lacks 	a
reasonable 	basis. 11 	(Bill 	Johnson's 	Restaurant 	v. 	NLRB, 	supra,
113 	LRRM 	at 	2655.)
51

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	Unfair 	Practice 	Case 	No. 	LA-CE-2503,
Inglewood 	Teachers 	Association 	v. 	Inglewood 	Unified 	School
District, 	in which 	all 	parties 	had 	the 	right 	to 	participate, 	it
has 	been 	found 	that 	the 	Inglewood 	Unified 	School 	District
(District) 	violated 	sections 	3543.S(a), 	(b), 	and 	(c) 	of 	the
Educational 	Employment 	Relations 	Act 	(Act) 	by:
1. 	The 	conduct 	and 	statements 	of 	Principal 	Lawrence
Freeman 	in 	removing 	Robert 	Bankhead 	and 	Vincent 	Combs 	from 	their
coaching 	assignments.
2. 	Threatening, 	through 	Freeman, 	to 	take 	legal 	action
against 	Eunice 	Curry 	and 	other 	employees.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
this 	Notice 	and 	will:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Engaging 	in 	the 	following 	forms 	of 	conduct 	in
response 	to 	employees 1 	protected 	activities: 	removing 	unit
members 	from 	their 	extra-duty 	assignments 	and 	threatening
employees.
2. 	Changing 	the 	policies 	and 	procedures 	governing 	the
removal 	of 	unit 	members 	from 	extra-duty 	coaching 	assignments
without 	first 	bargaining 	over 	the 	proposed 	changes 	with 	the
Inglewood 	Teachers 	Association 	(Association).
3. 	Interfering with 	the 	Association 1 s 	right 	to
represent 	unit 	members 	in 	their 	employment 	relations 	with 	the
District.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS 	ACT:
1. 	Make 	whole 	Robert 	Bankhead 	and 	Vincent 	Combs 	by
compensating 	them 	in 	a 	monetary 	amount 	equalling 	what 	each 	would
have 	been 	entitled 	to 	had 	they 	coached 	the 	entire 	1986-87
basketball 	season, 	plus 	interest 	thereon 	at 	ten 	(10) 	percent 	per
annum.
DATED: 	INGLEWOOD 	UNIFIED 	SCHOOL 	DISTRICT
By ________________ _
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED 	FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE 	WORKDAYS 	FROM 	THE 	DATE 	OF 	POSTING 	AND
MUST 	NOT 	BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED 	OR 	COVERED 	BY 	ANY
MATERIAL.

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

*** OVERRULED IN PART by Alliance Marc & Eva Stern Math & Science High
School, et al. (2021) PERB Decision No. 2795 * * *

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

INGLEWOOD TEACHERS ASSOCIATION,

Charging Party, Case No. LA-CE-2503
Vv. PERB Decision No. 79?
INGLEWOOD UNIFIED SCHOOL DISTRICT, February 15, 1990

Respondent.

Nee ee ee ee ee ee ee ee ee ee

Appearances: Schwartz, Steinsapir, Dohrmann & Sommers by Margo

A. Feinberg, Attorney, for Inglewood Teachers Association; Grant
& Duncan by Artis C. Grant, Jr., Attorney, for Inglewood Unified
School District.

Before Hesse, Chairperson; Craib, Shank and Camilli, Members.
DECISION

SHANK, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the
Inglewood Unified School District (District) to a proposed
decision of a PERB administrative law judge (ALJ). Two issues
were raised by the District in its exceptions. The first issue
is whether certificated employees, Vincent Combs (Combs) and
Robert Bankhead (Bankhead), were dismissed by Inglewood High
School (IHS) Principal Lawrence Freeman (Freeman) from their
extra-duty coaching assignments because of their concerted
activity involving a dispute about coaching stipends. The
District argues that the coaches should not have been represented
by Inglewood Teachers Association (ITA or Association) in the
unfair practice proceeding since coaches were not explicitly

listed in the parties’ collective bargaining agreement. A

connected procedural
issue
is
whether
the
ALJ
properly
allowed
the Association's
complaint
to
be
amended
during
the hearing.
The
second
issue
is
whether
Principal
Freeman
was
acting as
an
agent
of
the
District
when
he
filed
a
civil
lawsuit
against
ITA
and
various
ITA
members.
The
ALJ
found, as
to
the dismissal
of the
coaches
and
the
filing
of the
civil
lawsuit,
that
the
District,
through
Principal
Freeman,
violated
the Educational
Employment
Relations
Act
(EERA
or
Act), section
3543.5,
subdivision (a).
1 He
also
found
that
the
District
violated section
3543.5,
subdivision
(c),
and,
derivatively,
subdivisions
(a)
and
(b),
by
unilaterally
changing
established practice
for dismissing teachers
from
their extra-
duty assignment as coaches
without
just
cause.
For
the reasons
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,
subdivisions
(a),
(b)
and
(c) provide:
It
shall
be
unlawful
for
a
public
schoolemployer
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 coerceemployees 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.
2

set forth below, we affirm in part and reverse in part the
decision of the ALJ.
DISCUSSION
Except as noted below, the ALJ's findings of fact are
supported by the record. Many of the ALJ's factual findings rest
on credibility determinations, to which the Board generally gives
deference on appeal. (Anaheim City School District (1984) PERB
Decision No. 364a, at pp. 3-4i Santa Clara Unified School
District (1979) PERB Decision No. 104, at p. 12.) The following
is our legal analysis applied to a capsulized version of the
pertinent facts derived from the ALJ's proposed decision and our
own review of the record.
The Coaches' Dismissal
Combs and Bankhead were teachers at IHS, members of ITA, and
had both coached in IHS's athletic program during fall 1986, as
an extra-duty assignment. They had both been approved by the
school board to coach in the basketball program, which began in
November, 1986. Those who participated in the coaching program
were generally paid a stipend at the end of the pertinent season.
Combs completed his coaching duties for the cross-country team
the third week in Octoberi Bankhead finished his football
assignment the end of October or beginning of November. By the
middle of November, none of the coaches had been paid. Both
Combs and Bankhead went to the District employee, who generally
processed the payment, and asked about their stipends. Both were
told that the stipends would not be processed as usual because
3

Freeman had
not submitted
the
coaching
stipends
as
part
of the
school
budget.
Instead, the
coaches
were
to
be
paid
out
of
student
body
funds,
or
some
other
fund.
However,
there
was
apparently
insufficient
money
in
the student
body
fund
in
November
to
pay
the
coaches
for the
preceding
season.
When Combs
and Bankhead
learned
that
they
would
not
be
paid
in
the
usual
way,
they
discussed the matter
of
pay
with
other
current
and
past
coaches.
During
one such
discussion
in the
physical
education
office,
Edward
Brownless
(Brownless),
Athletic
Director
and
Dean
of
Students,
walked
in.
He
was
disturbed
that
the
coaches
would be
discussing the matter
among
themselves
and
expressed
his
anger over
what he viewed
as
criticism
of Freeman's
decision
regarding
pay.
After
a
brief
confrontation,
Brownless
reported the coaches'
discussion to
Freeman. Freeman
immediately
called
all
coaches
to his office.
During
the
brief
meeting
in
Freeman's
office,
Freeman
berated the
coaches
for discussing
their
salary questions with
each
other
and
forbade
them from
doing
so
in the future.
He
also relieved
Combs
and Bankhead
of
their
basketball
assignments
for expressing concern over
the
timing of
their
pay
for the previous season.
The
gist
of
his
reasoning
was
that
anyone
who
questioned the
money,
or
needed
the
money,
did not
need
to
coach.
It
was
not
clear
whether Freeman
intended to dismiss
Combs
and Bankhead
for the basketball season
or
just until
they were
paid.
However,
they
were never
offered
reinstatement after
being paid in the
latter half of December.
Following the meeting,
Combs and Bankhead turned in all
4

basketball-related items and did not coach the rest of the
basketball season.
The Association's initial charge on this issue alleged a
unilateral change in District practice and policy by removing
Combs and Bankhead from their coaching positions without cause.
The original complaint only addressed this theory. During the
first day of the hearing, the Association moved to amend the
complaint to include a retaliation allegation arising out of the
same facts surrounding the coaches' dismissal. The ALJ granted
the request over the District's objection.
The ALJ found that the District, through Freeman, retaliated
against Combs and Bankhead for acting in concert to determine the
timing of their payment, in violation of section 3543.5,
subdivision (a). 2 He also found that the District violated
section 3543.5, subdivision (c), and, derivatively, subdivisions
(a) and (b), by unilaterally changing established practice for
dismissing teachers from their extra-duty assignment as coaches
without just cause.
The District excepts to three areas of the proposed decision
in regard to the coaches' dismissal. 3
2The ALJ also found that the District's conduct could be
characterized as interference, thus, independently justifying a
section 3543.5, subdivision (a) violation. This issue is not on
appeal.
3The District does not except to the finding of retaliation,
interference, or unilateral change except on procedural bases
(jurisdiction, standing, etc.).
5

1.
The
motion
to
amend
the
complaint.
First,
the
District
argues
that
the
ALJ
improperly
granted
the Association's
motion
to
amend
the
complaint
at
the
time
of
the
hearing.
The
District
argues
that
the
amendment
was
untimely
based
on
ITA's
knowledge
of
the
District's
affirmative
defense
that,
since the
coaches
were
not
covered
by
the
parties'
collective
bargaining
agreement,
the
District
need
not
bargain
over
any change
in the timing of
payment.
It
asserts
th
t
ITA's
motion
to
amend
to
assert
a
retaliation
theory
was
an
effort
to
defeat
this
affirmative
defense.
The
District
concludes
that,
"[d]ue to the
late
date of the request for
amendment,
it
is
clear
that
the
amendment
was
only
a
sham."
The
District
nowhere
discusses
PERB
Regulation
32648
4
which
provides:
During
hearing, the charging
party
may move
to
amend
the complaint
by amending
the
charge
in writing, or
by
oral
motion
on
the record.
If
the
Board
agent determines
that
amendment
of the
charge
and
complaint
is
appropriate,the
Board
agent
shall
permit
amendment.
In
determining the appropriateness of the
amendment,
the
Board
agent
shall
consider,
among
other factors, the
possibility
of
prejudice to the respondent.
The
District,
furthermore,
makes no
showing
of prejudice, other
than to
say
that
the
late
amendment "was
clearly prejudicial to
respondent
and
therefore,
improper."
Since the
new
theory
was
based
on
the
same
set
of
facts
alleged in the original complaint,
it
is difficult
to determine
4PERB
Regulations are codified at California Administrative
Code,
title
8, section
31001
et seq.
6

what, if any, prejudice resulted from the amendment.
Furthermore, as argued by the Association, the District was on
notice prior to the hearing that the amendment would be
requested, the pertinent witnesses appeared two days later, and
the witnesses were additionally recalled by the District two
months later when the hearing was concluded. The Board,
therefore, affirms the ALJ's granting of the motion to amend.
2. PERB's jurisdiction to hear the charge.
The District's second exception to the ALJ's findings
involves its contention that PERB lacks jurisdiction to determine
any alleged violation by the District of Combs' and Bankhead's
rights because coaches are not included in the scope of
representation in the parties' collective bargaining agreement.
The District asserts that even though Combs and Bankhead are
"employees" within the protection of EERA, ITA can represent them
only as teachers, or some other classification listed in the
parties' collective bargaining agreement. The District argues
that ITA cannot represent them as coaches because coaches are not
listed in the scope of representation clause. Without citing any
authority, the District asserts that:
[i]t is against public policy and established
labor policy to force a party to a CBA
[collective bargaining agreement] to deal
with an exclusive representative in one
forum, i.e., at PERB, when they are not
required to do so pursuant to the terms of
the agreement outside that forum.
7

(District's
brief at
p.
11.)
The
District
concludes
that
if
Combs
and
Bankhead
were
the charging
parties,
it
would
not
be
faced with
this
dilemma,
but
does
not
elaborate
on
the
dilemma.
This
argument
is
specious both
from
a
factual
and
legal
standpoint.
Uncontroverted evidence
in
the record
indicates that
the
coaches
1
salaries
have
regularly
been
negotiated
by
ITA
in
bargaining sessions
with
the
District.
In
fact,
the coaches'
salary
schedule
was
omitted
from
the
parties'
most
recent
agreement,
at
the
Association's request,
because
the
District
refused to
tie
the
coaches'
salaries
to
the teachers
1
wage
scale--a
point
which
the
District
argues evinces
ITA's
determination
that
coaches should not
be
included
in the
unit.
Furthermore,
the
District
met
with
ITA
leadership
following
the
dismissal
of
Combs
and Bankhead, and
ITA
agreed
to process the
Association
1 s
grievance.
The
District is
also in error
from
a
legal standpoint.
As
the
ALJ
correctly
pointed out,
whether
or not the
position
of
coach
is listed
in the recognition clause of the
parties'
contract is
of
no
consequence
in
this
proceeding because
at
issue
is
a
change
in
a
term
and
condition of
employment
for
unit
members. Coaching
is
an
extra-duty
assignment performed by
bargaining unit
members. Such an assignment
offers unit
members
an
opportunity to earn extra
compensation,
a
matter squarely
within the
scope of bargaining.
In
Mammoth
Unified School
District
(1983)
PERB
Decision
No.
371,
the
Board held that
a
district violated section 3543.5,
8

subsections (a), (b), and (c) by unilaterally changing its policy
on the assignment of co-curricular coaching duties. (Id. at
p. 12.) The parties in Mammoth had negotiated salary stipends
for coaches, which were included in the parties' agreement.
There is no indication in the Board's decision, however, that the
inclusion of the stipend was critical to its determination that
assignment of work beyond the normal workday to teachers is
logically and reasonably related to hours and wages. (Id. ,
proposed decision, at p. 21; see also, Lincoln Unified School
District (1984) PERE Decision No. 465, proposed decision at pp.
11-14 (unilateral change found where district refused to bargain
over assignment of volunteer drivers to work previously performed
as overtime by district employees); Palos Verdes Peninsula
Unified School District (1979) PERB Decision No. 96, at p. 35
(extra hour assignments are mandatory subject of bargaining).)
Accordingly, the Board affirms the ALJ's ruling on this matter.
3. The inclusion of "Lawrence Freeman" as a heading.
The District also excepts to the ALJ's inclusion, as a
heading in his proposed decision, "Lawrence Freeman." The
District contends that:
Lawrence Freeman is not himself an issue of
fact in this case. Further, although there
are some issues involving alleged conduct by
Mr. Freeman, Mr. Freeman himself is not an
issue.
(District's brief at p. 2.) This argument is frivolous. The ALJ
merely set forth background information in the factual section of
the proposed decision.
9

The
Lawsuit
On
March
9, 1987, Freeman
filed
a
lawsuit
against the
California
Teachers'
Association
(CTA), ITA,
a CTA/ITA
staff
person,
and
nine
District
teachers
who
were
active
members
of the
Association.
The
lawsuit
sought
damages
for:
( 1)
the
distribution
of
a
circular
which
alleged
that
Freeman
had
threatened teachersi
(2)
the
sending of
a
letter
to the school
board regarding safe
working
conditionsi
(3)
the
filing
of
a PERB
chargei
and (4)
comments
by
the teachers
about
the
working
conditions
at
IHS
under Freeman's
administration.
The
original
complaint
had
five
causes
of
action:
(1)
libel
and
slander;
(2)
intentional infliction
of emotional
distress;
(
3)
fraudi
(
4)
interference
with
contracti
and (5)
conspiracy.
Although
the
caption
of the
complaint
did not
identify
Freeman
by
his
title,
in the
first
paragraph of the
complaint
Freeman
identified
himself
as follows:
Plaintiff is
a
resident
of
Los
Angeles County
and
is
employed by
the
Inglewood
Unified
School
District
.
as an
administrator,assigned
as
principal
of
Inglewood
High
School
. 5
5As a
result
of successive demurrers, the complaint
was
amended
several times.
By
the time the
ALJ's proposed
decision
issued,
Freeman had
filed
a
third
amended
complaint which
did not
contain the causes of
action for fraud
and
intentional
infliction
of emotional
distress
and which added
the following language
to
the identification
paragraph quoted above:
"Plaintiff is not,
however, and
at
no
time herein
has he even been, given
by
IUSD
the responsibility
of representing
IUSD
in
any
labor dispute with
any employee
or
an
[sic] collective bargaining unit representing
any employee of
IUSD." As
the record does not contain the
first
or second
amended
complaints,
we
cannot determine
at
what
stage
in the proceedings, or for what reason, the
new
language was
added.
10

The
defendants
were
identified
as
the bargaining
agent
and
parent
organization for
the
certificated
unit, officers
and
directors
in
the
Association
1
representatives
of
the Association,
and
teachers
at
IHS.
In
mid-March,
all
nine
of the
teachers received copies
of
the
complaint
from
the personnel
office
of
the
District.
Eight
of
the
complaints
were
delivered
through
inter-District
mail
in
envelopes
which
indicated
that
the
sender
was
''Personnel
Services"
of
the
District.
The
ninth teacher
was
sent
a
copy
of
the
complaint through
the
United
States
mail,
also in
an
envelope
which
identified
the
sender as "Personnel Services" of
the
District.
Those
who
were
sent the
complaint through
the
inter
District
mail system
picked
up
the
complaint
in
the corresponding
teacher
mail
box
at
the appropriate
school.
Testimony
revealed
that
a
District
employee
accepted
the
copies of the complaint
from
a
process
server
and
routed
them
to the appropriate schools,
where
a
District staff
person placed the
envelope
in the
teachers'
boxes. Testimony
also revealed
that this
was
the
only
copy
of the complaint received
by
the teachers.
Two
District
school board
members
were
made
aware
of the existence of
the
lawsuit
by one
of the affected teachers
who
~ontacted
them
after
receiving
a
copy
of the complaint.
On
or about April
13, 1987,
ITA
filed its
amended
unfair
practice
charge in
which
it
alleged for the
first
time
that
Freeman had
filed the civil lawsuit against
ITA
and
the teachers.
On
August 3, 1987, a PERB
complaint issued based upon the
amended
1 1

charge
alleging,
inter
alia,
that
the
District,
through
its
agent
Freeman,
filed
the
civil
lawsuit.
On
August 28, 1987,
the
District
answered
the
PERB
complaint denying,
inter
alia,
the
agency
allegations.
At
the
time
of the hearing
on
the
unfair practice
charge,
in
December
1987
and
February
1988,
the
status
of
the lawsuit
was
not
certain.
ITA
had
filed
three
demurrers
to
all
five
causes of
action.
A
superior court
judge
sustained
each
of the
demurrers
with leave
to
amend.
A
fourth
demurrer
to
the
third
amended
complaint
was
scheduled.
Subsequent
to the
PERB
hearing,
the
entire
action
was
dismissed with
prejudice
by Freeman.
At
the
outset
of
the hearing before the
ALJ,
the
District
moved
to
exclude
from
the hearing
room
teachers
who
would
be
testifying
about
their
receipt
of the
complaint.
The
Association
represented
that
each
would be
testifying
as
to his or her
own
experience in receiving the
document.
The
ALJ
denied
the
District's
motion.
He
held
that
if
the witnesses
were
going
to
testify
about
the
same
event,
in
other
words,
they observed
the
same
event
and
they're testifying
about
it,
then they
will
be
excluded. In cases
where
they're
notgoing
to
be
testifying
about
the
same
event
then they
may
stay in the
room
...
(Tr. Vol.
II, at
p. 14.)
The ALJ
concluded
that
if
two
witnesses,
who
had been
present for testimony,
were
to give
testimony as
to the
same
event,
he would
exclude the testimony.
In his
proposed decision, the
ALJ
concluded
that
Freeman was
acting with the District's
apparent authority
when he
filed the
lawsuit.
He
relied
on the following factors:
(1) Freeman was
12

carrying
out
a
threat
made
to
one
of
the
Association's
members,
on
District
premises,
in his
capacity
as
principal;
(2)
the
complaint
describes
Freeman
in his capacity
as
administrator
of
the
District;
(3)
all
of
the
allegations
relate
to
Freeman's
conduct
as
principal,
the
employees' conduct as employees, and
ITA's conduct as
a
representative;
(4)
the
conduct
described
related
to
working
conditions
at
IHS;
(5)
the lawsuit
was
distributed
through
the
school mail system,
in
district
envelopes,
and
"served"
on
the
employees
through
their
school
mailboxes;
and (6)
although
the
District
was
aware
of the lawsuit
and
its
contents, for
many
months,
it
did nothing
to
disavow
or
distance
itself
from
the
suit.
The
ALJ
concluded
that
the
teachers
named
in
the
complaint
were
justified
in
their belief
that
they
were
being
sued
by
the
District
through
Freeman. Thus,
he found
that
the
District
violated section
3543.5,
subdivision
(a),
by
carrying
out
a
threatened legal action
and
prosecuting
that
action
without
a
reasonable
basis.
The Agency
of
Freeman
The
District
excepts
to the
ALJ's
finding
that
Freeman
was
acting
with the apparent
authority
of the
District
when
he
filed
the lawsuit.
6
The
United
States
Supreme
Court has
held,
and
this
Board has followed
its
lead, that
it
is
an
unfair labor
practice
6
The
District filed
four exceptions to the ALJ's
finding
that the District violated section 3543.5, subdivision (a) by
prosecuting the
civil lawsuit. Resolution of the agency
issue,
however, negates the necessity of dealing in detail
with theremaining exceptions.
They
will
be
dealt with summarily.
13

for
an
employer
to prosecute
a
baseless lawsuit
with
the
intent
of
retaliating
against
employees
for
their
exercise
of
protected
rights.
(Bill
Johnson
1 s
Restaurants
v.
NLRB
(1983)
461
U.S.
731
[113
LRRM
2647]i
Rim
of
the
World
Unified
School
District
(Corcoran)
(1986)
PERB
Order
No.
Ad-161.)
In
the
case
currently
before
the
Board,
the
District
does
not argue
that
the
filing
of
the lawsuit
is
not
a
potential violation
of
the
Act
but only
that
the Association
failed
to
demonstrate
that
Freeman
was
operating
as
the
District's
agent
when
he
filed
his
suit.
7
We
agree.
The
ALJ's
finding
of
an agency
relationship
is
flawed
in
two
respects.
As
explained
below,
his reliance
on
Antelope
Valley
Community
College
District
(1979)
PERB
Decision
No. 97
as
a
statement of
PERB
law
on
agency
is
misplaced. Furthermore,
rather
than placing the
burden
of proof as
to the
agency
issue
on
the Association, the
ALJ
incorrectly
placed the
burden
on
the
District
to rebut
an agency
relationship.
The
ALJ
shifted the
burden of proof
to the
District
based
solely
on
the conclusory
allegation
in the complaint, .derived
from
the
second
amended
unfair practice
charge,
that
an agency
relationship existed.
He
then based
his conclusion
that
the
District
was
responsible for
the lawsuit
on
his finding
that
the
employees
thought the
District
was
responsible for the lawsuit.
7
The
District also argued
that the matter should have been
stayed, pursuant to
Rim
of the
World
Unified School
District,
supra,
PERB
Order
No.
Ad-161.) However,
that
argument
is
moot
because the underlying court action has
now
been dismissed.
14

In reaching his conclusion on the agency issue, the ALJ
found that under Antelope, supra, it is a "settled labor law
principle that employers can be held accountable for acts of
supervisors and managers whether or not such acts are authorized
by the employer." (Proposed decision, p. 53) He went on to
state that:
Although Respondent has offered some evidence
suggesting the District did not expressly
authorize Freeman to file the lawsuit, it has
offered little else than argument to negate a
finding that, in the eyes of the employees
defendants, Freeman was acting with apparent
authority.
(Emphasis in original.)
Applying the facts of the case to the rationale set forth in
Chairperson Gluck's opinion in Antelope, supra, he goes on to
state his case for agency as follows:
Several factors support the conclusion that
Freeman was acting with the District's
apparent authority in prosecuting the
lawsuit. As the Charging Party points out,
the civil action is an outgrowth of a threat
Freeman made to an employee in his capacity
as principal, while on District premises.
The moving papers filed by Freeman describe
him in his capacity as an administrator of
the District. Indeed, all of the allegations
in the complaint relate to Freeman's conduct
as principal, the employees' conduct as
employees, and the ITA's conduct as
representative of those employees.
Similarly, the allegations relate to subjects
that can be characterized as being inherently
related to working conditions of those
employees.
The lawsuit was distributed through the
school mail system and "served" on those
employees (except one) through their school
mailboxes. The markings on the envelopes
containing the complaint indicated the
contents were sent from the District's
15

central personnel services office. None of
the teachers were served at home or anywhere
but their work sites. Employees testified
they believed they were being sued by the
District, through Freeman. All felt they
were being sued because of their work-related
union activities.
Finally, although the District's governing
board and its superintendent were aware of
the lawsuit for many months before the
hearing in this matter, they did nothing to
disavow any interest or connection with it.
Neither did they instruct Freeman to do
anything to dispel the notion that the
District had any association with the legal
action. In view of all the circumstances,
the employees had just cause to believe
Freeman was acting as an agent of the
District in prosecuting the lawsuit.
The above quote is the ALJ's entire basis for finding that
an agency relationship existed between Freeman and the District.
A close look at Antelope, supra, however, reveals that it
was decided by two members of the Board, Chairperson Harry Gluck
and Member Raymond J. Gonzales in 1979, when the Board consisted
of only three members. Member Moore did not participate in the
decision. While Members Gluck and Gonzales agreed that an agency
did exist on the facts of that case, they disagreed on the rule
that should determine agency in a labor relations situation under
EERA. Chairperson Gluck wanted to follow NLRB precedent, which
he stated as follows:
In the subsequent application of section 2(2)
and 2(13), the courts and the NLRB have held
the question of agency authority should be
resolved by determining whether the employees
had just cause to believe the supervisor or
manager was acting with the apparent
authority of the employer.
(Id. at p. 10.)
16

Member
Gonzales
disagreed with
this
position
and
stated
the
rule
he would
adopt
and
his
rationale
as
follows:
I
disagree
with
the Chairperson's
assertion
that "historically
accepted
labor
relationsprinciples
of
agency
authority
and
principal
liability
must be
applied to
cases
arising
under
the
EERA." I
believe
that
in
some
situations
a
public
school
employer,
defined
in section
3540.
l(k)
as
"the
governing board
of
a
school
district,
a
school
district,
a
county board
of education, or
a
county
superintendent
of
schools,"
may
be
held
liable
for the
unlawful
acts
of
some
of
its
subordinates.
Governing
boards
are
responsible for the
overall direction
ofschool
districts,
but day-to-day decisions
and
actions,
which
may
directly affect
the
organizational
rights
of
employees,
are often
made
by
subordinates without
specificauthorization or
ratification
by
the
governing board.
It
is
reasonable
that
under
some
circumstances
employees
may
perceive
their
employer
as
responsible for
such
decisions
and
actions, regardless
of whether
the
governing board
itself
is directly
involved.
Under
other
circumstances,
such
a
perception
may
be
unreasonable,
and
it
may
thus
be
inappropriate to
attribute
these
actions to the
employer.
The
question
is
in
what
situations
should
the
employer be
held
responsible for acts
by
subordinates
which
are
unlawful under
section 3543.5.
(Id.
at
p. 32.)
Member
Gonzales, noted the
distinctions
between
the National
Labor Rel.ations Act
(NLRA)
and
EERA
that· justify this
Board's
departure
from
NLRA
precedent:
.
the
NLRA
contains
two
provisions
specifically dealing with the
agency
relationship
between an employer and
its
subordinates. Section
2 ( 2 ).
of the
NLRA
[
Fn.
omitted]
states that the term employer
"includes
any person acting as an agent of
the-employer,
directly or indirectly
. "
and
section
2(13) provides that authorization
or subsequent
ratification of specific acts
is
not controlling in holding
a
person
17

responsible for his
agent
1 s
acts.
The
EERA
contains
no
comparable
provisions.
To me,
this
indicates
that
the Legislature
did
not
intend
this
Board
to
adopt
the
private sector
rule
without
qualification,
but
rather
intended
it
to consider
carefully
the
situations
in
which
it
is
reasonable
to
attribute
to
a
public
school
employer
responsibility
for
unlawful
acts
it
has
neither
expressly authorized or
ratified.
(Id.
at
p.
33.)
We
note
that
Antelope
does
not
establish
a
precedent
since
the panel consisted
of
only
two
members
who
concurred
in the
result
in
that
case, but disagreed
on
the
basis for the
decision.
Subsequent cases
have
not discussed or
distinguished
between
the
different
approaches
set forth in
Antelope.
The
relevant
distinction
between
the
two
approaches
lies
in the
difference in
the readiness
with
which
each
is
willing to
adopt wholesale
the
private sector
labor
relations
approach
to the public
sector
labor
law
context.
While Gluck
takes the
position that private
sector
labor
relations principles
"must be
applied to cases
arising
under
EERA,
11
Gonzales
recognizes
that
the
statutory
distinctions
between
the
NLRA
and
EERA
mandate
a
cautious
application
of the "apparent authority" doctrine in the public
school labor relations
context.
We
think that the
Gonzales
approach
is
more
reasoned than
that
presented
by
Chairperson
Gluck.
We
therefore exercise caution
and
restraint in our
analysis of
this
case under the apparent authority doctrine. In
any
event,
when
the proper burden of proof
is
applied, the
evidence in the record
is insufficient to support
a
finding of
agency under
either the Gonzales or Gluck approach.
18

The burden of proof in unfair practice cases before PERB is
set forth in Regulation 32178 (California Administrative Code,
title 8, section 32178) as follows:
The charging party shall prove the complaint
by a preponderance of evidence in order to
prevail.
Furthermore, it is established California law that:
The burden of proving the existence of an
actual or ostensible agency as well as the
scope of the agent 1 s authority and the
principal 1 s ratification of the agent 1 s
unauthorized acts, rests upon the party
asserting the existence thereof and thereby
seeking to charge the principal upon the
representations of the agent.
(3 Cal.Jur.3d, sec. 165, pp. 236-237)
Although Freeman, as principal of IHS, is an actual agent of
the District, the Association did not prove, by a preponderance
of the evidence, that he was acting within the scope of his
authority when he filed the lawsuit. The Association produced no
evidence to show that the District gave Freeman express authority
to file a civil lawsuit. Furthermore, we are unwilling to find
that such authority may be implied from the fact of Freeman's
employment as principal.
Neither does the evidence in this case justify a finding
that Freeman had ostensible authority to file the suit.
Ostensible or apparent authority must be established through the
acts of the principal; in this case, the District (Civil Code
sec. 2317). To prove ostensible or apparent authority, the
Association was bound to establish representation by the
principal (the District) of the agency, justifiable reliance by
19

the
party
seeking
to
impose
liability
on
the
principal
(the
teachers);
and
a
change
in
position resulting
from
that reliance.
(Yanchor v.
Kagan
(1971)
22
Cal.App.3d
544,
549.)
The
only
testimony
offered
as
proof of
the
District's
involvement
was
that
of
Ethel
Murphy,
an
administrative secretary in
personnel
at
IHS.
She
testified
that
she
received copies of
the
complaint
from an
unidentified
process
server
and
put
them
in
the
regular
school
mail
to
the teachers
whose
names
were
on
the
complaint.
Since
one
teacher
was
not
at
the
school, but
at
home,
she
sent her
complaint
through
the mail. In sending
the
complaints through
school mail,
Ms.
Murphy was
following her
normal
routine.
She
further
testified
she
frequently
handles
legal
documents
in
the
same
manner and
that
she informed
no
one
at
the
school of
what
she had
done
with the
documents,
since
she
was
following
her
normal
procedure.
Thus,
the record
reflects
the
entire extent
of
the
District's
involvement
with the lawsuit to
be
the
receipt
and
processing
of mail
for teachers in
accordance with
routine
procedures.
Neither
do
we
find
that
the teachers
had
just
cause
to
believe that
the
District
was
involved
in
the lawsuit based
on
the contents of the complaint
and
the
mode
of delivery.
Under
California
agency law, persons dealing with
assumed
agents are
bound
at their peril
to ascertain the nature
and
extent of the
agency
relationship.
Mere
surmise as to the authority of an
agent
is insufficient to
impose
liability
on
a
principal based
on
20

a
theory
of apparent
authority.
(Harris
v.
San Diego
Flume
(1891)
87
Cal. 526.)
In
this
case, the Association
failed
to
prove
that
the
teachers
took
reasonable
steps to
ascertain
whether
Freeman
was
in
fact
authorized
to
file
a
lawsuit
on
behalf
of
the
District.
Although
one
teacher,
Robert
Dillen (Dillen),
testified
he spoke
to
two
District
board
members
about
the
lawsuit, the record
is
devoid of
any
indication
as
to
what he
asked
them.
Neither did the Association
prove
that
the
District
had
knowledge
of
the lawsuit,
8
proof of
which
was
essential
to
a
finding
that
the
District
condoned
or
ratified
the
filing
of the
lawsuit.
Again,
the
only testimony
proffered
by
the Association
and
relied
upon by
the
ALJ
to
establish
the
District
1 s
knowledge
of
the
lawsuit
was
that
of
Dillen,
a
teacher
named
in the
lawsuit.
The
significance
of
Dillen
1 s
testimony
lies
in
what
it
does
not contain. Dillen
testified
only
that
he
discussed the
lawsuit
with
two
school board
members.
The
Association did not
question Dillen
as
to the substance of the conversations
he had
with
either
of these
board
members. Nor
did the Association
call
them
as witnesses.
Thus,
there
is
nothing in the record
to
establish
whether
Dillen
informed
the
board
members
of anything
about the lawsuit other than
its
existence.
There
is
no
proof
that
they
knew
of the contents of the lawsuit or the specific
8
The
District
had
notice of the lawsuit
when
the unfair
practice
charge in this
case
was amended
to allege
agency. Oncea
complaint issued, the District, in its
answer, denied
its
involvement in the lawsuit.
21

nature
of
the
allegations.
Neither
is
there
testimony
as
to
whether
the
school
board
members,
who
were
allegedly contacted
by
Dillen,
informed
their
fellow
board
members
about
the
lawsuit.
The
most
important evidence
required
to
be
produced
by
the
Association to
prove
a
prima
facie
case of
agency
on
a
ratification
theory
was
evidence
that
the
District
had
official
notice, either
actual
or implied, of the contents
of
the lawsuit.
Proof of
District's
knowledge
of
the contents
of
the lawsuit
was
essential
to finding the
District liable
for
filing,
condoning
or
ratifying
it.
Not
only
did the Association
fail
to
call
school
board
members
as
witnesses
to
establish that
knowledge,
it
failed
to ask Dillen the substance of the conversations
he had
with the
two
board
members
he
contacted.
The
other witnesses
who
testified
said
nothing
that
would
justify
imputing
knowledge
of the contents of the lawsuit
to
the
District
board.
Rex
Fortune, the superintendent of the
District,
testified
he had
seen
a
copy
of the
complaint
at
some
point,
but
that
he had
nothing
to
do
with the lawsuit
nor had he
informed
the
District
board of
its
existence.
This testimony
is
uncontradicted.
Freeman,
who
initiated
the lawsuit,
testified
he
had
not
informed anyone on
the
District
board
or
anyone
.else
about the lawsuit.
This
part
of Freeman's testimony
is
uncontradicted.
Lynn
Pineda, the lawyer
for
Freeman
who
prepared
the
suit
and
filed
it, testified
he informed
no one
in the
District
about the lawsuit.
His testimony
was
uncontradicted.
22

In finding
that
an agency
relationship existed,
the
ALJ
emphasized
that
at
some
point the
District
board
became
aware
that
one
of
its
employees
filed
a
lawsuit
and
that
the
board
thereafter
failed
to "distance
itself"
from
or
"deny"
its
involvement
in
it.
Only
if
Freeman
was
holding
himself out
as
an
agent
of
the
District
in
connection with the
lawsuit,
and
the
District
was
aware
of
that fact,
would
the
District's
silence
be
sufficient
to
confer
ostensible authority.
(See
Waldteufel v.
Sailor
(1944)
62
Cal.App.2d
577,
581.) Notably,
the
third
amended
complaint
contains the
following
language
following
the
identification
of
the
plaintiff
Freeman
as
principal
of
IHS:
"Plaintiff is
not,
however, and
at
no
time
herein
has
he
ever
been, given
by
IUSD
the
responsibility
of
representing
IUSD
in
any
labor dispute
with
any employee
or
an
[sic]
collective
bargaining
unit
representing
any employee
of
IUSD."
Thus,
at
least
by
the
third
amended
complaint,
Freeman
himself
asserts
a
limitation
on
the
scope
of
his authority.
Since
we
do
not find
that
the Association
proved
that
the
District
was
involved
in
or
had any knowledge
of the
filing
of
the lawsuit,
we
do
not find
that
any
duty arose
on
the
part
of
the
District
to
disavow
the lawsuit. ·once the unfair practice
charge
was
filed
and amended
to allege
an agency,
the
District
had
notice of the lawsuit.
However,
in
its
answer
to the unfair
practice
complaint, the District
denied any involvement
in the
superior court proceeding. That denial not only
militates
against
a
finding of
ratification
on
the part of the school
23

board, but served the procedural function of casting the burden
upon the Association to prove the existence of agency by a
preponderance of the evidence.
In summary, there was a complete failure of proof by the
Association on the issue of agency. The Association had the
burden of proving and failed to prove that the District was
actually involved in the lawsuit, that the teachers could
reasonably believe the District was involved, or that the
District had knowledge of and ratified the lawsuit. It did not
meet its burden.
The facts that Freeman was the principal of the high school,
that he was not getting along with the teachers or the
Association, and that he filed a lawsuit against them are simply
insufficient to support a finding of agency. The ALJ's
conclusion that, because Freeman was principal of the high
school, the teachers could reasonably assume the District was
behind or in some way responsible for the lawsuit is untenable.
The District did not have the burden of proving its non
involvement.
The dissent's approach to the agency question is internally
inconsistent and its adaption of respondeat superior principles
to the labor law context overly simplistic. As the dissent
recognizes, both the Gluck and Gonzales opinions in the case of
Antelope Valley draw on the traditional agency principles of
apparent authority in looking to the reasonableness of the
employee's perception of the employer's responsibility for the
24

agent's actions. Additionally, the private sector labor law
cases and the Agricultural Labor Relations Board (ALRB) 9 cases
cited by the dissent draw on traditional agency principles of
apparent authority in imposing liability based on the acts of the
employer and reasonableness of the employee's belief that the
agent was acting or speaking on behalf of the employer. Having
cited these cases with approval, the dissent then insists that
the application of the doctrine of apparent authority is
appropriate only in contract cases, and that the proper analysis
should be under the tort doctrine of respondeat superior.
While the simplicity of application of the doctrine of
respondeat superior to the labor law context is appealing, there
are good reasons that the doctrine has not been applied in the
past and for declining to apply it here. The rationale for
application of the doctrine of respondeat superior was recently
explained by the California Supreme Court as follows:
"The principal justification for the
application of the doctrine of respondent
superior in any case is the fact that the
employer may spread the risk through
insurance and carry the cost thereof as a
part of doing business. 11 [citation]
Although earlier authorities sought to
justify the respondeat superior doctrine on
such theories as "control 11 by the master of
the servant, the master's 11 privilege" in
being permitted to employ another, the third
party's innocence in comparison to the
master's selection of the servant or the
masters 11 deep pocket 11 to pay for the loss,
9 Notably, the Agricultural Labor Relations Act (ALRA)
contains language similar to the NLRA with respect to agency, and
the ALRB is statutorily mandated to follow NLRB precedent. In
contrast, PERB is not so mandated.
25

"the modern justification for vicarious
liability is a rule of policy, a deliberate
allocation of a risk. The losses caused by
the torts of employees, which as a practical
matter are sure to occur in the conduct of
the employer's enterprise are placed upon
that enterprise itself as a cost of doing
business . " John R. v. Oakland Unified
School District 48 Cal.3d 438, 450.
The facts of this case are unusual. Here, although the
factual underpinnings of Freeman's lawsuit arise out of his
employment, by his lawsuit he sought to vindicate purely personal
interests based on theories of interference with contract, libel,
slander, and conspiracy. No direct benefit would inure to the
District by virtue of either Freeman's filing or winning of the
lawsuit. The Association filed an unfair practice charge with
PERB attempting to hold the District responsible for the filing
of the lawsuit on an unfair practice charge theory, presumably
seeking a cease and desist order against the District and damages
consisting of the attorneys fees they incurred in defending
Freeman's superior court action. In our view, unfair labor
practice charges of this type are not within the normal range of
risks for which costs can be spread and insurance sought. Thus,
application of the respondeat superior doctrine is inappropriate.
10 In John R., the issue was whether the school district
that employed a teacher could be held vicariously liable for the
teacher's act of molesting a student under the doctrine of
respondeat superior. The Court held that: " . the doctrine
is not applicable in these circumstances and that while the
school district may be liable if its own direct negligence is
established, it cannot be held vicariously liable for its
employee's torts." 48 Cal.3d at 441. See also Kimberly M. v.
Los Angeles School District (1989) 215 Cal.App.3d 545.
26

Other Exceptions
The remainder of the District's exceptions can be dealt with
summarily. The District argues that the ALJ's failure to exclude
witnesses from the hearing room was prejudicial error, contending
that the witnesses in the hearing room "picked up the cue" that
they should testify that they thought that the District, and not
Freeman in his individual capacity, was suing them. Since we
find in favor of the District on the agency issue, we need not
address whether the ALJ's failure to exclude witnesses from the
hearing room was improper.
The District argues that PERB lacks jurisdiction to hear an
unfair practice charge based on the lawsuit prior to resolution
of the civil suit. Since we are dismissing that portion of the
unfair practice charge based on the filing of the lawsuit, having
found no agency, we need not decide this jurisdictional question.
The District also excepts to the ALJ's conclusion that there
was a gap in the evidence as to the financing of the lawsuit,
arguing that the testimony revealed that the District did not
finance the lawsuit. Since we find insufficient evidence in the
record to establish agency, we need not address this exception.
CONCLUSION
We conclude that the District retaliated against Combs and
Bankhead for engaging in protected activity; thus, violating EERA
section 3543.5, subdivision (a). We also find that the District
27

violated
section
3543.5,
subdivisions
(a),
(b) and
(c)
by
changing
the
policies
and
procedures of
removing
coaches
from
their
extra-duty
assignments
without
first
bargaining with the
Association.
As we
do
not
find
that
Freeman
was
acting as
an
agent
of
the
District
in prosecuting the
civil suit,
we
do
not
find
that
the
District
violated section
3543.5,
subsection
(a)
based
on
the lawsuit.
Since
we
do
not
find the
District
responsible for
Freeman
1 s
prosecution
of
the lawsuit,
we
reverse
the
ALJ 1 s
award
to
the Association
of the
legal
fees
incurred in
defending
that suit
and need
not decide
if
PERB
has
the
authority
to
award
fees incurred
in
a
collateral
proceeding.
REMEDY
PERB
is
granted
broad remedial
powers
under
EERA
in order to
effectuate
the
purposes of the
Act.
Section
3541.5,
subdivision
(c)
provides:
The
board
shall
have
the
power
to issue
a
decision
and
order
directing
an
offending
party to
cease
and
desist
from
the
unfair
practice
and
to take
such
affirmative action,including but not
limited
to.thereinstatement of
employees
with
or withoutback pay, as
will effectuate the
policies
of
this
chapter.
The
Board
is
permitted
"[t]o
take
such
other action
as
the
board
deems
necessary to discharge
its
powers and
duties
and
otherwise
to effectuate the purposes of
this chapter." (Section 3541.3,
subdivision (n).)
Pursuant to these
powers and
duties,
we
issue
the Order
that
follows.
28

ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in this case, and pursuant to EERA section
3541.S(c), it is hereby ORDERED that the Inglewood Unified School
District (District), its governing board and its representatives
shall:
A. CEASE AND DESIST FROM:
1. Engaging in the following forms of conduct in
response to employees' protected activities: removing unit
members from their extra-duty assignments and threatening
employees.
2. Changing the policies and procedures governing the
removal of unit members from extra-duty coaching assignments
without first bargaining over the proposed changes with the
Inglewood Teachers Association (Association).
3. Interfering with the Association's right to
represent unit members in their employment relations with the
District.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. Make whole Robert Bankhead and Vincent Combs by
compensating them in a monetary amount equalling what each would
have been entitled to had they coached the entire 1986-87
basketball season, plus interest theieon at ten (10) percent per
annum.
2. Within thirty-five (35) days following the date
the Decision is no longer subject to reconsideration, post at all
29

work
locations
where
notices
to
employees
customarily
are placed,
copies
of
the
Notice
attached
as
an
Appendix
hereto,
signed
by an
authorized
agent of
the
employer.
Such
posting
shall
be
maintained
for
a
period
of
thirty
(30)
consecutive
workdays.
Reasonable
steps
shall
be
taken
to insure
that this
Notice
is
not
reduced
in size,
defaced,
altered
or
covered
by an
material.
3.
Written
notification
of
the actions
taken
to
comply
with
this
Order
shall
be
made
to the
Los
Angeles
Regional
Director
of
the
Public
Employment
Relations
Board
in
accordance
with her
instructions.
Chairperson
Hesse and
Member
Camilli joined
in
this
Decision.
Member
Craib's dissent
begins
on
page
31.
30

Member Craib, concurring and dissenting: I agree with my
colleagues that the Inglewood Unified School District (District)
violated the Educational Employment Relations Act (EERA or Act)
by retaliating against Vincent Combs and Robert Bankhead for
engaging in protected activity and by unilaterally changing the
policies and procedures for removing coaches from extra-duty
assignments. However, I must dissent from their agency analysis
and, hence, from their conclusion that the District did not
violate EERA when its principal, Lawrence Freeman, instituted a
lawsuit against selected teachers, the Inglewood Teachers
Association (Association), and an Association staff person.
Although the majority purports to adopt the agency analysis
proposed by Public Employment Relations Board (PERB or Board)
Member Gonzales in Antelope Valley Community College District
(1979) PERB Decision No. 97 and, in the alternative, to apply
California agency principles, it does neither. Furthermore,
while initially the majority properly frames the issue as whether
Freeman was acting within the scope of his employment when he
filed the lawsuit, the analysis actually employed is inapposite.
As discussed below, under either of the approaches suggested by
Member Gonzales or Chairperson Gluck, or under traditional agency
principles, Freeman was acting within the scope of his employment
with the District at the time he filed the lawsuit; therefore,
the District is responsible for his actions.
Although the majority discounts the significance of the
facts relied upon by the administrative law judge (ALJ) in
31

reaching the conclusion
that
Freeman
was
acting
with the apparent
authority
of
the
District,
it
does
not
refute
those
facts.
As
even
the
majority recounts
the
facts,
we
are presented with
a
District
principal
who
filed
a
lawsuit
after
threatening
employees
that
he would
do
so.
1
In
the
complaint
that
he
filed
with
the court,
Freeman
identified
himself
as
a
District
administrator
and
principal.
The
allegations
in the
complaint
relate
to
activities
which
took
place
at
Inglewood
High
School
involving teachers, in
their
capacity
as
employees,
and
the
Association, in
its
capacity
as
the exclusive
representative.
The
conduct
complained
of
was
intrinsically
related
to the
teachers'
working
conditions
and
union
activities.
Freeman
attributed
his
damages
to the following conduct:
the
distribution
of
a
circular
which
alleged
that
Freeman had
threatened teachers;
a
letter
sent to the
school board concerning
safe
working
conditions; the
filing
of
a
charge with
PERB;
and
finally,
complaining about
working
conditions
at
Inglewood High
School under Freeman's
administration.
DISCUSSION
Antelope Valley
Community
College
District,
supra,
PERB
Decision
No. 97
is
the only case
in
which
the
Board has
specifically
addressed the issue of
an employer's
responsibility
for unfair labor practices
committed by
supervisory or managerial
1
The
District
was
also charged with another unfair practice
which arose out of Freeman's
threat to file
a
lawsuit.
The ALJ
found
that threat to
be
a
violation.
The
District
has not
excepted to that determination and
it
has become
final.
32

employees. Although Chairperson Gluck and Member Gonzales relied
on seemingly different analyses, each found that the District was
responsible for the unfair practice. (Id. at pp. 13-16, 32-35.)
In Antelope Valley, both Gluck and Gonzales found that a group of
employees, subsequently designated as managerial and
supervisorial by the district's board of trustees, were acting
with the apparent authority of the district when they interfered
with an organizing effort by an employee organization. At issue
was whether the organizing efforts by the managerial and
supervisorial employees were authorized by the district. In
concluding that those employees were acting with the apparent
authority of the district, both Gluck and Gonzales relied on the
following facts: 2
2Although Gonzales differed with Gluck on the appropriate
law to apply to the facts presented, nowhere in his concurrence
does he dispute the facts relied upon by Gluck. He states:
Under the facts in this case, the District
can reasonably be held responsible for the
actions of its designated management and
supervisory employees, and cannot now seek to
insulate itself by claiming that it could not
interfere with the supervisory employees'
organizational activities. The District had
notice of these actions and not only took no
steps to disassociate itself from them but
actively created an impression of support by
responding favorably on proposals made by the
designated employees on behalf of all
classified employees.
(Antelope Valley Community College District, supra, PERB Decision
No. 97, at p. 34; emphasis added.)
33

(1)
The
spectrum
of
actions
engaged
in
by
the
designees[
3 ]
which
go
well
beyond
the
statutory right
of
self-organization
afforded
supervisory personnel;
(2)
The
open and
notorious
manner
in
which
those
actions
were
taken;
and
(3)
The
fact
that
the
District at
no
time,
and
particularly after
the
CSEA
[California
School
Employees
Association]
charge
was
filed,
did anything
to
disabuse
the
wide-spread impression
among
classified
employees
that
the
designees
indeed
spoke
for
the
District,
which
it
could
have done
either
by
withdrawing
the designations,
by
publicly
acknowledging
that
the
status
of
the
designees
was
in dispute
and
that
as
a
consequence
of
that
dispute
their
actions
were
not
authorized or
ratified
by
the
District,
or
by
expressly
disassociating
itself
from
those
actions in
any manner.
(Antelope Valley
Community
College
District,
supra,
PERB
Decision
No.
97,
at
p. 14.)
The
difference
between Gluck and
Gonzales' approaches
to
the
agency
determination arose over whether
to
directly
adopt
the
agency
analysis
utilized
by
the National
Labor
Relations
Board
(NLRB). As
discussed
by
the majority
at
page
16
in the
present
case,
Gluck
applied the
NLRB
reasoning because
.
to
exclude
principles
of
agency
from
interpretation
of the
EERA
would
not only
ignore long-established principles
of
law,
but
open
the
door
to permitting
employers
(school boards)
to
engage
in unfair practices
through
the actions of
their
administrators
and
subordinates but escape
liability
through
an
artificially
narrow
interpretation
of the
word
"employer".
(Id.
at
p. 12.)
Gluck
applied the prevailing
test utilized
by
the
NLRB:
whether employees have
just
cause to believe
that
the
3
Gluck used the term "designees" to refer to the employees
designated managerial and
supervisorial
by
the
district
who
participated in the unlawful organizing.
34

supervisor or manager is acting with the apparent authority of
the employer.
This test arose from language used by the United States
Supreme Court in interpreting the National Labor Relations Act
(NLRA), prior to its amendment in 1947. 4 The court stated that
[t]he employer, however, may be held to have
assisted the formation of a union even though
the acts of the so-called agents were not
expressly authorized or might not be
attributable to him on strict application of
the rules of respondeat superior. We are
dealing here not with private rights
[citation] nor with technical concepts
pertinent to an employer's legal
responsibility to third persons for acts of
his servants, but with a clear legislative
policy to free the collective bargaining
process from all taint of an employer's
compulsion, domination, or influence. The
existence of that interference must be
determined by careful scrutiny of all the
factors, often subtle, which restrain the
employees' choice and for which the employer
may fairly be said to be responsible. Thus
where the employees would have just cause to
believe that solicitors professedly for a
labor organization were acting for and on
behalf of the management, the Board would be
justified in concluding that they did not
have the complete and unhampered freedom of
choice which the Act contemplates.
4In 1947, the definition of "employer" was amended to
substitute "acting as an agent of the.employer" for the previous
language which defined employer to include persons "acting in the
interest of an employer. 11 (2 Morris, The Developing Labor Law,
2d Ed. p. 1445.) Section 2(13) of the NLRA was also added, which
provides:
[i]n determining whether any person is acting
as an "agent" of another person so as to make
such other person responsible for his acts,
the.question of whether the specific acts
performed were actually authorized or
subsequently ratified shall not be
controlling.
35

(International Association of Machinists v. NLRB (1940) 311 U.S.
72 [7 LRRM 282, 286] (employer found to have unlawfully
interfered with organizing when it lent support, through its
employees, to one union over another); emphasis in original;
cited with approval by Chairperson Gluck in Antelope Valley
Community College District, supra, PERB Decision No. 97, at pp.
9-10.) Even though the agency provisions of the NLRA have been
amended, the Supreme Court's reasoning continues to be relied
upon by both the NLRB and the courts. (See e.g., Minnesota Boxed
Meat (1987) 282 NLRB 1208, 1213.) In Minnesota Boxed Meat, the
NLRB succinctly stated its position on agency:
The critical issue is "whether, under all
circumstances, the employees would reasonably
believe that the nonsupervisory employee was
reflecting company policy and speaking and
acting for management."
(Id., quoting Community Cash Stores (1978) 238 NLRB 265; emphasis
added.) The NLRB has also stated that
. a principal is responsible for the acts
of its agent done in furtherance of the
principal's interest and within the scope of
the agent's general authority, even though
the principal may not have authorized the
specific act in question. It is enough if
the principal has empowered the agent to
represent it in the general area in which the
agent acted.
(Hampton Merchants Assn. (1965) 151 NLRB 1307, 1308.) In recent
cases interpreting the NLRA, the courts have found that acts of a
supervisor may be attributed to the employer "if the listening
employee reasonably would be justified in believing that the
supervisor was speaking for the employer." (Ballou Brick Co. v.
36

NLRB
(1986)
798
F.2d
339
[123
LRRM
2121,
2127)
(employer
liable
for
low-ranking
supervisor's anti-union
remarks
where
it
submitted
no
evidence
to
show
why
the
employees
should
not
have
believed
that
the supervisor
was
acting
on
behalf
of
the
employer);
emphasis
added.)
5
Although
the majority
contend
that
the
tests
set forth
by
Gluck
and
Gonzales
were
markedly
different,
in
fact,
their
differences
were
primarily
semantic.
While
Gluck's
test
focused
on
the
employees'
just
cause
for believing
that
the
agent
was
acting
for the
employer, Gonzales emphasized
whether
the
employees
reliance
was
reasonable.
He
stated:
It
is
reasonable
that
under
some
circumstances
employees
may
perceive
their
employer
as
responsible for
such
decisions
and
actions, regardless
of whether
the
governing board
itself
is directly
involved.
Under
other
circumstances,
such
a
perception
may
be
unreasonable,
and
it
may
thus
be
inappropriate to
attribute
these actions tothe
employer.
The
question
is
in
what
situations
should
the
employer be
held
responsible for acts
by
subordinates
which
are
unlawful under
section
3543.5.
(Antelope Valley
Community
College
District,
supra,
PERB
Decision
No.
97,
at
p.
32;
emphasis added.)
6
Thus,
Gonzales'
test is
not
5Some
of the
United
States
1
courts of appeal take
a
slightly
different
approach and presume
that
when
supervisors act, they
act
on
behalf of
their
employer.
The
employer
is
then required
to rebut that
presumption
by some
means,
e.g.
by
demonstrating
sufficient
repudiation.
(See
NLRB
v. Big Three
Industrial
Gas &
Equipment
Co.
(1978)
579
F.2d
304 (99
LRRM
2223, 2226] and
cases
cited therein.)
6Member
Gonzales was
concerned,
at least in part,
by
the
organizational rights of supervisors under
EERA
which do
not have
a
counterpart in the
NLRA. He
found
that the independent
interests of supervisors and
rank-and-file employees may
cause
37

significantly different
from
that
applied
py
the
NLRB.
The
focus
of
both
is
on
the
reasonableness of
the
employees'
belief that
the
employer
is
responsible for the
actions.
The
California
Supreme
Court
has
also
had
occasion
to
apply
agency
principles in
the labor
arena. In Vista
Verde
Farms
v.
Agricultural
Labor
Relations
Board
(ALRB)
(1981)
29
Cal.3d
307,
the
California
Court, applying
United
States
Supreme
Court
precedent,
held
that,
under
the
Agricultural
Labor
Relations
Act
(ALRA),
agricultural
labor
contractors, hired
and
compensated
by
the
employer,
were
agents of
the
employer,
who
remained
liable
for the unfair practices
of those
contractors.
7
The
Court
applied
a
test
similar to
that set forth in International
Association of
Machinists
v.
NLRB,
supra,
7
LRRM
at
p.
286:
if
the
employees had
just
cause
to believe
that
the supervisors
were
acting
on
behalf
of
management,
or
if
the
employer has
gained
an
illicit
benefit
from
the
misconduct
and
realistically
has
the
ability
either
to prevent
a
repetition
of
such misconduct
in
the
future or to
alleviate
the deleterious effect
of
such
conduct
on
some
infringement
by
supervisors
on
the rank
and
file
which would
not necessarily
be
attributable to the
employer.
Therefore,
he
declined to
"apply
a
presumption
that supervisors generally act
and speak for the employer." (Antelope Valley
Community
College
District,
supra,
PERB
Decision
No.
97,
at
p. 34.) That concern
is
not applicable in the case currently before the
Board.
7
The
Court so
held despite language in the
ALRA
that
seems
to particularly
exclude labor contractors
from
the definition of
employer. (See
discussion in Vista Verde Farms v.
ALRB,
supra,
29
Cal.3d at 321-24.)
38

the employees' statutory rights. (Vista Verde Farms v. ALRB,
supra, 29 Cal.3d at 322. ) 8
Although the ALRA contains language mirroring the NLRA on
the issue of agency and requires the ALRB to follow NLRB
precedent, we must recognize that authority. The majority has
not adequately explained why the Board should not be bound by
either the approaches taken in Antelope Valley or NLRB precedent.
I would find that, under either approach, the District is
responsible for Freeman's actions because the Association and its
affected members reasonably believed that the District was
responsible. First of all, and most significantly, as principal,
Freeman was the agent of the District. Secondly, all of the
complained-of conduct arose out of the employment relationship.
Finally, the District, by circulating the complaint to the
8 The Court recognized that an employer should not be bound
in all instances, i.e., it is not "strictly liable" for the acts
of its agents. The court stated that
in exceptional circumstances an employer may
be able to escape responsibility for
misconduct of a labor contractor, just as it
may occasionally escape responsibility for
improper acts of a supervisor. [Citations. ]
Thus, for example, if an employer publicly
repudiates improper conduct and takes action
to reprimand the labor contractor and to
insure that the conduct does not coerce or
intimidate employees; the ALRB may find the
employer not guilty of an unfair labor
practice.
(Vista Verde Farms v. ALRB, supra, 2 9 Cal. 3d at 3 28; see al so,
J.R. Norton Co. v. ALRB (1984) 162 Cal.App.3d 692, 696-99;
Superior Farming Co. v. ALRB (1984) 151 Cal.App.3d 100, 122-23.)
39

teachers
through
its
internal
mail system,
led the
recipients
to
believe that
the
District
authorized the
actions.
Assuming,
arguendo,
that traditional
labor
law
agency
principles
are inappropriate,
we
must
then
look
to
California
agency
principles
to
decide
this
case.
While
the majority
attempts
to
apply
California
agency
principles to
the
facts
of
the case,
its
disjointed
agency
analysis
contains
a
discussion
of
a
variety
of
agency
principles,
none
of
which
are
appropriate.
The
majority
contends
that
it
bases
its
conclusion
that
Freeman
was
not
acting within the
scope
of
his
employment
on
the
Association's failure
to
satisfy
its
burden
of
proof.
I,
of
course,
agree
that,
pursuant
to
PERB
Regulation
32178,
9
the
burden of proving
a
case
is
on
the
charging
party.
However,
retaining
the ultimate
burden
of proving
a
case
does
not
prohibit
the
burden
from
shifting after
a
threshold level
has been met.
The
Board
routinely applies
this
approach
in discrimination
cases.
(See
e.g.,
Novato
Unified
School
District
(1982)
PERB
Decision
No.
210.)
Thus,
despite the
majority's contention to
the contrary, the
ALJ
did not improperly
shift
the
burden
to
the
District after
the Association
made
the
initial
showing
required
under Antelope Valley
and
NLRB
precedent. Furthermore, .the
majority
does not
restrict its
analysis to the
burden of proof
required
under
Member
Gonzales' agency
analysis. Instead, the
9PERB
Regulations are codified at California Administrative
Code,
title
8, section
31001
et seq. For complete
text of
Regulation
32178 see majority opinion at
page 19.
40

majority applies
agency law which
developed
in the area
of
contracts.
The
majority requires
that
the Association
prove
the
District
represented
that
the
agency
existed,
that
the
Association
relied
on
that
representation,
and
changed
its
position
as
a
result
of
that
reliance.
These
requirements
are
misplaced.
Such
requirements
are appropriate
in
cases
where
the
aggrieved
party
seeks
to
enforce
a
contract,
made
by an
agent,
with the
principal.
Here,
the Association did not
engage
in
negotiations
with
Freeman,
such
that
it
would
rely in
advance
on
his or
the
District's
representation
of
agency.
A
discussion
of
the Association's
reasonable
reliance
is
inappropriate
under
the
facts
of
this
case.
There
was no
reason
for, or opportunity
to
"rely"
on, any
representation
of
agency.
Freeman,
after
threatening to
do
so,
filed
a
lawsuit.
The
only
authority cited
by
the majority arose out of
a
contract-type situation.
(Yanchor v.
Kagan
(1971)
22
Cal.App.3d
544.)
Yanchor
is
a
case
where an
attorney
executed
an
agreement,
on
behalf
of
his
client,
with
a
defendant.
That agreement
provided
that his
client,
the
plaintiff,
.would
not execute
any
judgment
obtained against that
defendant.
When
the
client later
so_ught
to execute the
judgment
against that
defendant,
who
had
not put
on
a
defense because of the agreement, the defendant,
relying
upon
the agreement,
moved
for
an
order to enter
satisfaction
of the
judgment. The
trial
court granted the motion
and
the appellate court affirmed.
The
appellate court, relying
41

on
California Civil
Code
section
2334,
reasoned
that,
although
the attorney
did not
have
expressed
or
implied
authority
to enter
into
the
agreement,
he
did
have
ostensible authority to
do
so.
The
court
found
that
the
defendant's declaration
adequately
asserted
all
of
the
facts
necessary
to
prove
estoppel,
to
which
the court
analogized.
It
resolved
contradictions in
favor of the
defendant,
assuming
that
the
trial
court
had done so
in
reaching
its
conclusion.
(Yangor
v.
Kagan,
supra,
22
Cal.App.3d
at
548-
551.)
10
The
case
currently
before the
Board
is
not
analogous
to that
presented to the court
in
Yangor
because
the Association
did
not
enter into
a
contract
with
Freeman which
it
sought
to enforce
with the
District.
11
Rather,
the
instant
case
is
akin
to
holding
a
principal
responsible for the
wrongful
acts
of
its
agents, e.g.
its
agent's
torts.
The
proper
analysis requires the
application
10
civil
Code
section
2334
provides:
A
principal
is
bound by
acts
of
his
agent,
under
a
merely
ostensible authority, to those
persons only
who
have
in
good
faith,
and
without
want
of ordinary care, incurred
a
liability
or parted with value,
upon
the
faith thereof.
11
Nor
is this
case analogous
to Harris
v. San Diego FlumeCo.
(1891)
87
Cal.
526,
the only other authority relied
upon by
the majority for
its
assumed
authority analysis. In Harris, the
plaintiff
sought
to recover $5,000 as
a
brokerage fee for
negotiating
a
contract.
The
question addressed
by
the court
was
the authority of the person
who
hired the
plaintiff.
The
court
concluded
that the plaintiff failed to prove
that
he
relied
on
any
representations
made by
the principal sought to
be charged.
Like the situation in
Yangor,
this case involved
a
contract to
which
a
party sought to bind the principal.
42

agency,
even
if
the
employee
acts in
excess
of
his
or her
authority
or contrary
to instructions;
such
conduct
is
not
inconsistent
with
a
finding
that
the
employee
is
acting within
the
scope
of
his
employment.
(Foss v.
Anthony
Industries
(1983)
139
Cal.App.3d
794, 802;
Alhino
v.
Starr
(1980)
112
Cal.App.3d
158,
174;
Clark
Equipment
Co.
v.
Wheat
(1979)
92
Cal.App.3d
503,
520-21;
2
Witkin,
Summary
of
California
Law,
Agency,
at
p.
109;
see
also
Restatement
2d, Agency,
secs.
219,
243
et
seq.)
If
a
duty of the
employer
is
violated
by
an employee,
the
employer
is
liable
the
same
as though he
or
she
were
guilty
of
the breach.
(Transcontinental
&
Western
Air
v.
Bank
of
America (1941)
46
Cal.App.2d
708,
713.)
The
act
of
the
agent
may
be
within the
scope
of his or
her
authority
even though
it
is
malicious
or
intentional.
(Clark
Equipment
Co.
v.
Wheat,
supra,
92
Cal.App.3d
503,
520.)
The
courts
have
interpreted
this
section to include
both
negligent
and
intentional acts
of agents. (Id.
at
p. 520-
521.
) 13
The
test
for
whether
an employee
was
acting within the
scope of
his or her
employment
is
whether
the
employee
was
engaged
in
some
act or execution of
some
purpose which,
while not
within the actual duties of his or her
employment,
was
an
incident
of
his or her duties
as
an employee. (Curcic v. Nelson
Display
Co,
(1937)
19
Cal.App.2d 46,
54.)
13
courts
have found employers
liable for even felonious acts
committed by
their
employees
acting within the scope of
their
employment. (See,
e.g., Transcontinental
&
Western Air v. Bank
of America, supra,
46
Cal.App.2d
at p. 713.)
44

The courts have justified respondeat superior by reasoning
that the losses caused by the torts of employees, which are
undoubtedly likely to occur, should be borne by the employer as a
required cost of doing business. (Hinman v. Westinghouse
Electric Co. ( 1970) 2 Cal. 3d 956, 959-60.) The theoretical
underpinnings and scope of respondeat superior were thoroughly
reviewed by the California Court of Appeal in a case involving
intentional fraud. (Rodgers v. Kemper Construction Co. (1975) 50
Cal.App.3d 608, 618-619.) There the court stated:
The doctrine, which departs from the normal
tort principle that liability follows fault,
is an ancient one but its scope and stated
rationale have varied widely from period to
period. [ Ci tat ions.] It has been aptly
stated that "Respondeat superior has long
been a rule in search of a guiding
rationale." [Citation.]
In some respects this rationale is
akin to that underlying the modern doctrine
of strict tort liability for defective
products. [ Ci tat ions. ] . It is grounded
upon "a deeply rooted sentiment that a
business enterprise cannot justly disclaim
responsibility for accidents which may fairly
be said to be characteristic of its
activities." [Citations.]
One way to determine whether a risk is
inherent in, or created by, an enterprise is
to ask whether the actual occurrence was a
generally foreseeable consequence of the
activity. However, "foreseeability" in this
context must be distinguished from
"foreseeability" as a test for negligence.
In the latter sense "foreseeable" means a
level of probability which would lead a
prudent person to take effective precautions
whereas "foreseeability" as a test for
respondeat superior merely means that in the
context of the particular enterprise an
employee's conduct is not so unusual or
startling that it would seem unfair to
45

include
the loss
resulting
from
it
among
other costs
of
the
employer's
business.
[Citations.]
In
other
words,
where
the
question
is
one
of
vicarious
liability,
the
inquiry
should
be
whether
the
risk
was
one
"that
may
fairly
be
regarded
as
typical
of
or
broadly
incidental" to the
enterprise
undertaken
by
the
employer.
[Citations.]
[T]he
test
for
determining whether
anemployer
is
vicariously
liable
for the
tortious
conduct
of
his
employee
is
closely
related
to the
test
applied
in
workers'
compensation
cases
for
determining
whether
an
injury
arose out
of
or in
the course of
employment.
[Citation.]
This
must
necessarily
be so
because
the
theoretical
basis for placing the loss
on
the
employer
in
both
the
tort
and
workers'
compensation
fields is
the
allocation
of the
economic
cost
of
an
injury resulting
from
a
risk
incident
to
the
enterprise. [Citations.)
(Id.;
emphasis
in original;
see
also
Witkin,
Summary
of
California
Law,
Agency,
at
p. 110.)
Relying
on
these guidelines, C~lifornia courts
have found
employers
liable
for the
following
employee
conduct:
fraud (Gift
v. Ahrnke (1951)
107
Cal.App.2d
614,
621-22);
assault
(Rodgers v.
Kemper
Construction Co., supra,
50
Cal.App.3d
608, 621);
libel
(Draper v. Hellman Commercial
Trust
and
Savings
Bank
(1928)
203
Cal. 26).
The
Restatement of
Agency
holds
an employer
liable
for
malicious prosecution.
It
states:
A
master
is
subject to
liability
for the
tortious institution
or conduct of legal
proceedings
by
a
servant acting within thescope of
employment.
46

(Restatement of the Law 2d, Agency, sec. 246, at p. 543
(1958). ) 14
Applying the doctrine of respondeat superior, as codified in
Civil Code section 2338, the District is responsible for
Freeman's filing of the lawsuit. Freeman's conduct is most
analogous to the commission of a tort. While one may not feel
that it is "fair" to hold an employer responsible for
unauthorized tortious conduct, the courts have done just that.
In the seminal case of Rodgers v. Kemper Construction Co., supra,
50 Cal.App.3d 608, the court held an employer responsible for an
assault committed by one of its employers. The court stated
the test applied [to hold an employer liable
for assault] is virtually identical to that
used for an employee's negligent torts. If
the assault was motivated by personal malice
not engendered by the employment, the
employer is not vicariously liable; but
otherwise, liability may be found if the
injury results from "a dispute arising out of
the employment." [Citation.]
(Id. at p. 621; see also Carr v. Wm. C. Crowell Co. (1946) 28
Cal.2d 652, 654.) Thus, if Freeman had assaulted teachers in a
dispute arising out of their employment, the District would have
14 Comment (b) to section 246, sets forth the analysis
necessary to hold an employer liable:
In order to cause the master to be civilly
responsible for the conduct, the act must, of
course, constitute a tort. Thus, in
malicious prosecution, the prosecutor must
have acted for a purpose other than that of
promoting justice. This fact does not
prevent the master from being liable,
although he has authorized only conduct
actuated by lawful motives. Ifj however, the
servant, although purporting to act for him
has no purpose of serving the purposes of the
master or of acting on account of his
business, the master is not liable.
47

been responsible. Likewise, the District is responsible for
Freeman's unlawful prosecution of a lawsuit, which arose out of
the employment. Nothing in the record suggests that Freeman
harbored any personal malice against any of the teachers for
their activities outside the employment arena. The evidence all
suggests that Freeman filed his lawsuit against the teachers and
the Association for employment-related activities which arose
because of his position as principal of Inglewood High School.
While the District prefers to distance itself from Freeman's
conduct, it is nevertheless liable under Civil Code section
2338. 15
15 Relying on a recent ruling by the California Supreme Court
(John R. v. Oakland Unified School District (1989) 48 Cal.3d
438), the majority contends that an employer should not be
vicariously liable for its employees' torts. (Majority opinion
at pp. 25-26 and fn. 10.) The facts of John R. are markedly
different from those presented the Board in this case .. There, a
school teacher lured a student to his home on the pretense of
school work and then proceeded to sexually molest him. (John R.
v. Oakland Unified School District, supra, 48 Cal.3d at 442-43.)
The court in no way altered the law of respondeat superior which
I have cited, nor expressed any disapproval of those cases which
have held employers responsible for the torts of their employees.
Quoting Rodgers v. Kemper Construction Co., supra, 50 Cal.App.3d
608, 619, the court in John R. stated:
we think the teacher's acts here can only be
characterized as "so unusual or startling"
[citation] that vicarious liability cannot
fairly be imposed on the district.
(John R. v. Oakland Unified School District, supra, 48 Cal.3d at
fn. 9.)
The filing of a lawsuit over matters arising out of the
employment relationship in no way compares nor is "so unusual or
startling" as a teacher sexually molesting a student.
48

The majority contends that Freeman's lawsuit sought to
vindicate purely personal interests and no direct benefit would
inure to the District by filing or winning the lawsuit.
(Majority opinion at p. 26.) The District benefits from this
unfair labor practice in the same way it would benefit from any
other unfair practice. Employee and employee organization rights
which are expressly protected by EERA are violated. That
violation has a chilling effect on any future exercise of
protected activity. Here, the conduct complained of by Freeman,
in his lawsuit, was conduct protected under the Act. The
Association had to expend significant time and money to defend
against this lawsuit. The District directly benefits from the
burden imposed on the Association and its members because the
Association and its members may not again engage in such
protected activity without the risk of being sued by a District
employee.
The majority also contends that the Association did not meet
its burden of proving that Freeman was the agent of the District
at the time he filed the lawsuit. The burden of proof in cases
involving respondeat superior differs from that suggested by the
majority. Initially, the plaintiff must establish that an
employer-employee relationship existed at the time of the
wrongful act and that the act was done within the scope of
employment. (Adams v. American President Lines (1944) 23 Cal.2d
681, 688); see also Largey v. Intrastate Radiotelephone. Inc.
(1982) 136 Cal.App.3d 660, 665, 29 Cal Jur 3d (Rev) sec. 122, at
49

pp.
785-86.)
The
plaintiff
or injured party
can
meet
that
burden
by
introducing
evidence
from
which
the
trier
of
fact
can
reasonably
infer that
the
wrongdoer
was
acting within the
scope
of
his
or her
employment.
(Adams
v.
American
President Lines,
supra,
23
Cal.2d
at
688.)
The
plaintiff
is
not
required
to
negate
any
anticipated
defense.
(Id.)
The
burden
then
shifts
to
the
employer
to
introduce
evidence
that
the
conduct
was
outside
the
scope of
employment.
(Id.)
The
employer's
failure to
produce evidence as
to
the
terms
of
the
relationship
may
justify
an
adverse inference. (Id.)
The
Association introduced evidence
that
Freeman
was
an
employee
of
the
District.
It
also
introduced
evidence
that
the
conduct
complained
of
by Freeman
all
arose out of the
employment
relationship.
Freeman had
threatened to
file
the lawsuit while
on
campus,
during school hours.
Freeman
identified
himself
as
a
District
administrator in the complaint.
The
District circulated
Freeman's complaint through
its
internal
mail system,
in
envelopes
which
bore
the
District's
personnel
office's return
address.
Furthermore,
despite the evidence
that at least
two
of
the
District's
board of
trustees
knew
of the lawsuit, the
District
never repudiated
Freeman's
action, prior to the fi1ing
of the
charge before
PERB.
16
Thus,
since the Association provided evidence
that
Freeman
was
an employee
of the
District
and
presented evidence
that his
16
The
majority
makes much
of the fact that the District
denied participation in {ts
answer
to the
PERB
charge (see
majority opinion at
pp. 11, 20
at fn. 8), however,
that
answer
is
no
evidence at all
as to repudiation because
it
is not only
untimely but is also not verified.
50

actions arose during the scope of his employment (the allegations
in the complaint), the burden shifted to the District to
introduce evidence that the conduct was outside the scope of
employment. It failed to do so.
Since the Association has met its burden of proving that
Freeman was acting within the scope of his employment under
either traditional labor law principles of agency or under
appropriate principles of California agency law, I would find
that the District is responsible for Freeman's actions. It is an
unfair labor practice to file a lawsuit without a reasonable
basis for the purpose of retaliating against the exercise of
protected activity. (Bill Johnson's Restaurants v. NLRB (1983)
461 U.S. 731 (113 LRRM 2647]; Rim of the World Unified School
District (1986) PERB Decision No. Ad-162. 17 ) Thus, by filing and
prosecuting a lawsuit which lacked a reasonable basis, the
District violated section 3543.5, subdivisions (a) and (b) of the
Act. The District should therefore be ordered to cease and
desist from such activity and to reimburse the Association and
its members for the costs of defending against the lawsuit. (See
Bill Johnson's Restaurants v. NLRB, supra, 113 LRRM at p. 2654.)
17 Bill Johnson's and Rim of the World each specifically
addressed when, and if, a labor board must stay its proceedings
in order to allow a state court claim to go forward. The Bill
Johnson's court held that "although it is an unfair labor
practice to prosecute an unmeritorious lawsuit for a retaliatory
purpose, the offense is not enjoinable unless the suit lacks a
reasonable basis. 11 (Bill Johnson's Restaurant v. NLRB, supra,
113 LRRM at 2655.)
51

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-2503,
Inglewood Teachers Association v. Inglewood Unified School
District, in which all parties had the right to participate, it
has been found that the Inglewood Unified School District
(District) violated sections 3543.S(a), (b), and (c) of the
Educational Employment Relations Act (Act) by:
1. The conduct and statements of Principal Lawrence
Freeman in removing Robert Bankhead and Vincent Combs from their
coaching assignments.
2. Threatening, through Freeman, to take legal action
against Eunice Curry and other employees.
As a result of this conduct, we have been ordered to post
this Notice and will:
A. CEASE AND DESIST FROM:
1. Engaging in the following forms of conduct in
response to employees 1 protected activities: removing unit
members from their extra-duty assignments and threatening
employees.
2. Changing the policies and procedures governing the
removal of unit members from extra-duty coaching assignments
without first bargaining over the proposed changes with the
Inglewood Teachers Association (Association).
3. Interfering with the Association 1 s right to
represent unit members in their employment relations with the
District.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. Make whole Robert Bankhead and Vincent Combs by
compensating them in a monetary amount equalling what each would
have been entitled to had they coached the entire 1986-87
basketball season, plus interest thereon at ten (10) percent per
annum.
DATED: INGLEWOOD UNIFIED SCHOOL DISTRICT
By ________________ _
Authorized Representative
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST
THIRTY (30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY
MATERIAL.

Inglewood Unified School District * * * OVERRULED IN PART by Alliance Marc & Eva Stern Math & Science High School, et al. (2021) PERB Decision No. 2795 * * * (PERB 0792E)

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