Cottonwood Union High School District (PERB 0687E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOHN HOWARD 	LEONARD,
Charging 	Party,
v.
COTTONWOOD UNION SCHOOL DISTRICT,
Respondent.
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Case 	No. 	S-CE-879
PERB 	Decision No. 	687
June 27, 	1988
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Appearances; 	Kathryn Burkett 	Dickson, 	Attorney, 	for John Howard
Leonard; 	Bandell, 	Swanson and Jahr by L. 	Alan 	Swanson 	for
Cottonwood 	Union 	School 	District.
Before Porter, 	Craib and Shank, 	Members.
DECISION
PORTER, 	Member: 	This 	case 	is before 	the Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on exceptions 	filed by 	the
Charging Party, 	John Howard Leonard 	(Leonard), 	to the proposed
decision, 	attached hereto, 	of a PERB administrative 	law judge
(ALJ). 	The ALJ dismissed Leonard's 	complaint 	alleging 	that 	the
Cottonwood 	Union 	School 	District 	(District) 	reassigned him 	from
a 	principal 	position 	to 	a 	teaching position because 	he 	refused
to 	prevent 	teachers 	from 	joining 	the 	union, 	thereby violating
subdivisions 	(a) 	and 	(b) 	of 	section 3543.5 	of 	the Educational
Employment Relations Act (EERA).1
1 E E R A 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Section 3543.5 provides, 	in pertinent part:
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______)
1

Having 	reviewed 	the 	exceptions 	of 	Leonard, 	the 	District's
response 	to exceptions 	and 	the 	entire 	record 	in 	this 	case, 	we
determine 	that 	the 	findings 	of 	fact 	in 	the proposed 	decision 	are
free 	from prejudicial 	error, 	and we 	therefore adopt 	them as 	the
findings 	of 	the 	Board 	itself. 	We 	affirm 	the ALJ's 	conclusions
of 	law 	consistent 	with 	our 	discussion herein.
The 	crux 	of 	Leonard's 	theory 	is 	that his 	reassignment 	was
the 	District's 	reprisal 	taken against him, 	due 	to his 	refusal
to 	accede 	to 	the 	District's 	demand 	to discourage 	unionism 	at
East 	Cottonwood School. 	Leonard's demotion, 	in turn, 	had 	the
effect 	of 	interfering with, 	restraining 	and 	coercing 	teachers
in 	the 	exercise 	of 	their 	rights 	protected pursuant 	to 	EERA
section 	3543. 	Thus, 	the ALJ describes 	Leonard's 	theory as
It 	shall be 	unlawful 	for 	a public 	school 	employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate 	or 	threaten 	to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their 	exercise 	of
rights 	guaranteed by 	this 	chapter.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2 EERA, 	section 3543 provides, 	in pertinent part:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the purpose 	of
representation on 	all 	matters 	of 	employer-
employee 	relations. 	Public 	school 	employees
shall 	also have 	the 	right 	to 	refuse 	to 	join
or participate 	in 	the 	activities 	of 	employee
organizations 	. . . .
22

an 	amalgamation of 	two discrete 	rights 	or 	forms 	of 	protected
activity under 	EERA: 	(1) 	Leonard's 	right 	to 	refuse 	to 	interfere
with 	teachers' 	choices about union membership; 	and 	(2) 	the 	right
of 	teachers 	to 	freely choose 	membership 	in 	a 	union without 	fear
of 	reprisal 	from 	the 	District.
Leonard's 	theory 	is 	borrowed 	from precedent 	established
under 	the National Labor 	Relations Act 	(NLRA). 	Supervisors
are excluded 	from protection under 	the NLRA. 	(29 U.S.C, 	secs.
152(3), 	152(11) 	and 157.) 	While supervisors are not protected,
an adverse 	action 	taken against 	one may, 	nonetheless,
constitute 	a 	violation 	if 	it 	is 	motivated by 	the 	supervisor's
refusal 	to commit 	an unfair 	labor practice, 	or 	if 	the adverse
action 	interferes 	with 	the 	rank 	and 	file's 	exercise 	of 	their
organizational 	rights. 	(Belcher Towing Co. 	v. 	NLRB 	(5th Cir.
1980) 	614 F.2d 88 	[103 LRRM 2939] 	enforcing 	in part Belcher
Towing Co. 	(1978) 	238 NLRB 446 	[99 LRRM 1566].) 	The underlying
rationale 	of 	this 	rule 	is 	not 	for 	the protection of 	the
supervisor, 	but 	rather, 	to dispel 	the 	fear of nonsupervisory
employees 	that 	the 	employer will 	take 	similar 	reprisals 	against
them 	if 	they continue 	to 	support 	a 	union. 	(Russell 	Stover
Candies, 	Inc. 	v. 	NLRB 	(8th Cir. 	1977) 	551 F.2d 204 [94 LRRM
3036] 	enforcing Russell Stover Candies, 	Inc. 	(1976) 	223 NLRB
592 	[92 LRRM 	1240].)
We 	do 	not 	find NLRA precedent 	instructive 	in 	the 	instant
case. 	The ALJ found, 	and we agree, 	that Leonard 	is a
33

3	supervisor.3 Unlike 	the NLRA, 	under EERA, 	supervisors 	are
not 	excluded 	from 	the 	definition of 	"employees," 	and 	are 	thus
protected. 	(EERA sec. 	3540.1, 	subd. 	(j).) 	Thus, 	under EERA,
there 	is 	no 	distinction made between 	rights 	enjoyed by 	employees
and 	those 	of 	supervisors. 	Just 	as 	any employee 	under 	EERA may
assert 	as 	protected 	conduct 	the 	right 	to 	refuse his 	or her
employer's 	demand 	to prevent 	unionization, 	so may a 	supervisor.
Although Leonard, 	as 	a 	supervisor, 	may assert 	the 	right 	to
refuse 	to accede 	to his 	employer's 	demand 	to prevent 	unioniza-
tion, 	this 	record 	reveals 	a 	failure 	of proof as 	to 	the 	alleged
facts. 	The ALJ 	included 	in his 	findings:
There 	is 	no 	evidence 	indicating how 	Leonard
refused 	to prevent 	unionization 	or 	committed
unfair practices. 	There 	is 	no demand 	from
the 	employer 	that 	he 	prevent 	unionization
or 	commit 	an 	unfair 	practice 	after 	the 	1981
settlement 	agreement, 	save 	for 	the 	inference
that 	may be 	drawn 	from Babiarz's 	request 	for
the performance 	evaluations 	of 	the 	four
activists 	following 	the 	1982 	election.
Leonard 	"dragged his 	feet" 	on 	the 	request
and 	only delivered 	the 	evaluations 	along
with 	those of all 	of 	the 	teachers, 	as
3We 	agree 	with 	the 	ALJ 	that 	the 	evidence 	was 	insufficient
to 	support 	a 	finding 	that 	Leonard 	was 	either 	a 	confidential 	or
a management 	employee 	within 	the 	meaning of 	EERA section 	3540.1,
subdivisions 	(c) 	and 	(g), 	respectively. 	We question, 	however,
the propriety of 	continuing 	to 	interpret 	subdivision 	(g) 	of
section 	3540.1—which 	provides 	the 	statutory 	definition 	of
a management 	employee—in 	the 	conjunctive, 	despite 	that 	the
statute 	is 	expressly written 	in disjunctive 	language. 	(See
Lompoc 	Unified 	School 	District 	(1977) 	EERB Decision No. 	13.)
We 	find 	it unnecessary to reach 	this 	issue, 	however, 	in 	light
of 	the 	District's 	failure 	to 	file 	cross-exceptions, 	as well
as 	the 	fact 	that 	the 	evidence 	clearly demonstrated Leonard's
supervisorial 	status.
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requested by 	the 	board 	the 	following year.
Absent 	further 	action by 	Babiarz 	on 	the
request or 	the evaluation, 	there's no
conclusion 	that 	an 	unfair 	practice 	had
occurred.
We 	agree 	with 	the 	ALJ 	that 	the 	record 	contains 	no 	evidence
of 	Leonard's 	refusal 	to 	commit 	any unlawful 	activity.
Concerning Babiarz's 	request 	of 	Leonard 	for 	the 	evaluations
of 	the 	four 	union activists, 	contrary 	to Leonard's 	assertion
of 	a 	refusal 	to provide 	such, 	he 	neglected 	to even 	tell 	Babiarz
of his 	intent 	not 	to provide 	the 	evaluations 	and 	the 	reasons
therefore. 	Eventually Leonard provided 	the 	evaluations, 	along
with 	those of 	the 	other 	teachers. 	When Babiarz 	requested
Leonard 	to post 	articles 	pertaining 	to 	unionism 	at 	East
Cottonwood, 	the 	evidence 	in 	the 	record demonstrates 	only
Leonard's 	compliance with 	the 	request. 	A	4 	The 	record, 	in
short, 	does 	not portray an 	individual 	who 	took 	an affirmative
stand 	against 	Babiarz's 	anti-union 	sentiments. 	Inarticulated
objections 	and 	silent 	reluctance 	do 	not 	constitute 	a 	"refusal"
to commit 	unlawful 	activity. 	Further, 	the 	record 	is 	devoid
of 	evidence 	that 	the 	District's 	decision 	to demote 	Leonard
was 	influenced by 	input 	received 	from 	Babiarz. 	The 	record
demonstrates 	that 	the 	District 	reassigned 	Leonard because 	of
dissatisfaction 	with 	his 	performance 	as 	an 	administrator.
4We 	further 	affirm 	the 	ALJ's 	conclusions 	that
Babiarz's 	actions 	in 	requesting 	the 	evaluation of 	the 	four
union 	activists, 	as well 	as 	asking Leonard 	to post 	articles
concerning unionism, 	were 	not 	sufficient 	to give 	rise 	to a
violation 	under 	EERA.
5

ORDER
We 	affirm 	the ALJ's 	dismissal 	of 	the 	unfair 	practice 	charge
and 	the 	complaint 	in 	Case No. 	S-CE-879 	is hereby DISMISSED.
Members 	Craib 	and 	Shank 	joined 	in 	this 	Decision.
66

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
JOHN 	HOWARD 	LEONARD.
Charging 	Party.
v.
COTTONWOOD UNION 	SCHOOL 	DISTRICT.
Respondent.
)
)
)
) 	Unfair 	Practice
Case 	N o . 	S-CE-879
PROPOSED DECISION
(5/6/36)
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)
)
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Appearances: 	Kathryn Burkett Dickson, 	Esq., 	for John Howard
Leonard; 	B a n d e l l , 	Swanson and 	Jahr 	by L. 	Alan Swanson, 	for
Cottonwood 	U n i o n 	School 	District.
Before 	Gary M. 	Gallery. 	Administrative 	L a w Judge.
PROCEDURAL 	HISTORY
John 	Howard 	Leonard 	filed 	this 	unfair 	practice 	charge
against 	the 	Cottonwood 	Union 	School 	District 	(District) 	on
M a r c h 	2 8 , 	1 9 8 5 . 	Leonard 	charged 	that 	the 	District 	reassigned
him 	from 	a 	principal 	position 	to 	a 	teaching 	position 	because 	he
allowed 	teachers 	at 	his 	school 	to 	become 	union 	m e m b e r s . 	A
complaint 	was 	issued 	on M a y 	1 0 , 	1 9 8 5 , 	stating 	that 	Leonard, 	an
employee 	of 	the 	District 	within 	the 	meaning 	of 	section
3540.l(j) 	of 	the 	Government 	C o d e , 	was 	demoted 	because 	he 	failed
to 	prevent 	teachers 	working 	under 	his 	direction 	from 	joining 	an
employee 	organization, 	thereby 	denying 	Leonard's 	rights 	and 	the
This Board agent decision has been appealed to
the Board itself and is not final. Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
(
e

rights 	of 	employees working under 	him, 	in violation of
section 3543.5(a).1
The District 	in its 	answer 	on May 23, 	1985, 	denied
violations 	of 	the EERA, 	denied 	that Leonard was 	an employee
under 	the EERA and 	affirmatively 	alleged 	that 	Leonard was 	a
management 	employee 	and 	had 	no 	standing 	to 	file 	the 	unfair
practice 	charge. 	A settlement 	conference was 	held without
success. 	The formal hearing was held on August 21-23, 	1985, 	at
Redding, 	California. 	Post-hearing 	briefs were 	filed 	on
November 	12, 	1985 	and 	the matter 	submitted 	as 	of 	that date.
FINDINGS 	OF FACT
The 	Cottonwood Union School 	District 	is 	an employer 	within
the meaning of 	the EERA. 	The District 	operates 	two 	schools.
East 	Cottonwood 	and West 	Cottonwood. 	East 	Cottonwood 	serves
the 	K-4th grade 	level 	and West 	Cottonwood 	serves 	5th 	grade
through 	8th grade. 	The 	schools 	are 	located about 	a 	mile 	from
each 	other.
1This 	section 	is 	a 	part 	of 	the Educational Employment
Relations Act 	(EERA or Act), 	Government Code sections 	3540
et.seq. 	All 	references 	are 	to 	the government 	code, 	unless
otherwise 	stated. 	Under 	3543.5(a) 	it 	is 	an unfair 	practice 	for
the 	public 	school 	employer 	to:
(a) 	Impose 	or 	threaten to 	impose 	reprisals 	on
employees, 	to discriminate or 	threaten to discriminate
against employees, 	or otherwise 	to 	interfere with,
restrain, 	or 	coerce employees because of 	their
exercise 	of 	rights 	guaranteed 	by 	this 	chapter.
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The District, 	under a five-member 	board of 	trustees, 	has a
superintendent, 	and a principal 	in each of 	the 	two 	schools.
Longevity of 	service 	of 	both 	board 	members 	and 	staff 	is
notable. 	Board 	chairman Jim Rickert 	(chair 	for 	10 years) 	has
been on 	the 	board 	since 	fall 	of 	1964. 	Edward Petersen has 	been
on the 	board 	for 	18 years. 	Dennis Powers, 	the 	remaining board
member 	to 	testify, 	has 	been on the 	board 	since 	1981. 	It
appears 	the 	other 	board 	members 	have 	been 	on the 	board 	at 	least
since 	that 	time. 	Joe Babiarz, 	the 	superintendent 	at all 	times
material 	to 	this 	case, 	retired 	effective June 	1985 	after 	40
years 	of 	service as 	superintendent. 	Ken Osborn, 	who 	served 	as
principal 	of 	the West Cottonwood 	School 	for 	several 	years 	prior
to Babiarz's 	retirement, 	was 	appointed 	superintendent 	to
succeed 	Babiarz.
Leonard 	served 	as 	principal 	at 	East 	Cottonwood 	from 	1964
until 	June 	1985.
Leonard's Role 	as 	Principal
As 	principal, 	Leonard was 	in charge 	of 	the East Cottonwood
School. 	Babiarz's 	office was 	at 	the West 	Cottonwood 	School
campus 	and 	the 	superintendent 	would 	visit 	the East 	school
campus 	for 	5 	to 	10 minutes 	a week. 	There were no 	regularly
scheduled 	staff 	meetings 	between Leonard 	and Babiarz. 	There
were 59 employees, 	including 22 teachers, 	at the East
Cottonwood School. 	According 	to Leonard, 	his 	duties 	included
supervision of 	teachers, 	placement of 	students, 	scheduling
33

recesses, 	textbook ordering.2 supply ordering, 	maintenance3
and 	supervision of 	the 	plant, 	program writing 	and 	evaluation of
special 	projects 	such as 	the 	School 	Improvement Program
(SIP).
4 Leonard addressed pupil 	problems, 	parent relations.
PTA. 	and 	seeing 	that 	"toilets 	get unplugged." 	He 	also 	arranged
for 	lunch distribution, 	transportation safety, 	dismissal 	of
kindergarten classes, 	kindergarten registration, 	back-to-school
nights and open house. 	Leonard was, 	he 	said, 	"essentially 	in
charge 	of 	what 	happened 	there." 	He was 	the 	sole 	administrator
at East 	Cottonwood.
Leonard 	denied 	that 	he 	determined 	the 	direction 	the
District would go. 	what 	its 	goals were 	for 	teaching, 	how many
2Regarding textbooks, 	the District 	sent 	a 	list of 	books
available, 	and 	the 	principal 	and 	the 	teachers 	determined which
books 	to 	order. 	Babiarz 	made 	final 	approval 	of 	the 	list.
Leonard 	said 	sometimes 	one 	school 	or 	the 	other 	needed 	more 	than
the ADA allotment. 	The District 	superintendent would 	make
whatever 	adjustments 	he 	thought 	appropriate.
3Regarding maintenance 	of 	East. 	Leonard would 	contact
Babiarz 	concerning 	a 	perceived 	need 	and 	Babiarz 	had 	the 	final
say.
^Leonard 	had 	been 	responsible 	since 	1973 	for 	seeing 	that
the 	SIP 	for 	East Cottonwood was written, 	along with a 	budget
which was 	submitted 	to 	the 	county and 	then 	to 	the 	board 	for
approval. 	The 	budget 	is 	related 	to 	the 	average daily attendance
(ADA). 	Evaluations were 	based upon test 	information and 	he
would 	fill 	out 	county forms 	and 	return 	those 	to 	the 	county
office. 	Leonard 	recommended 	to 	the 	board 	approval 	of 	the 	SIP
budget. 	He 	and 	teachers 	also 	reviewed 	and wrote up 	the 	federal
Title 	I 	and 	II 	programs, 	and 	submitted 	them to 	the board 	for
approval 	after 	approval 	by the 	superintendent. 	He also
determined 	how the money was 	to 	be 	spent, 	consistent with 	the
board-approved 	budget.
4

schools 	it would 	have 	or who 	should 	be 	hired 	in top 	level
positions. 	The 	superintendent 	and 	the Board was 	responsible
for 	those 	things, 	he 	said. 	All 	of 	his 	budgets 	and 	programs
were 	reviewed 	and 	approved 	by 	the 	superintendent 	and 	the
board. 	New buildings 	or 	additions 	to 	buildings 	had 	to 	be
approved 	by 	the 	superintendent 	and 	the 	board.
The District 	presented 	no 	evidence 	of 	duties 	unique 	to
Leonard 	as 	a 	principal within 	the District. 	Petersen testified
that 	teachers' 	salary recommendations 	came 	from the
superintendent. 	He 	assumed 	that 	the 	recommendations 	followed
deliberations 	with 	the 	principals.
East Cottonwood 	has 	done well 	in at 	least 	one 	area 	of
education. 	The 	third 	grade 	students 	have 	ranked 	over 	the 	88th
percentile 	in 	the 	State 	in 	the 	California Assessment 	Program
Achievement 	test for 	the 	last 	12 years.
The 	1981 Unfair 	Practice 	Charge
In September 	1981 	the 	Cottonwood 	Teachers 	Association,
CTA/NEA 	(CTA or 	Union) 	filed 	an unfair 	practice 	charge 	against
the District, 	naming Babiarz. 	Leonard, 	and Osborn as
Respondents. 	The 	charge alleged 	that 	at 	a 	September 	4, 	1981
meeting, 	the 	three met with three 	teachers 	and Babiarz
threatened 	the 	teachers 	with 	reprisals 	for 	having 	joined 	CTA
contrary 	to 	promises 	he 	said 	they had 	given him 	the 	prior
5

year.s Separate 	allegations 	of 	surveillance and 	search of
the 	chapter 	president's 	desk were 	set 	forth 	against 	Leonard.
Also 	alleged 	were 	discriminatory 	transfers 	of 	CTA members 	from
East 	Cottonwood.
From 	the 	testimony at 	the 	hearing 	in 	the 	instant 	case 	by
Leonard. 	Osborn and Nicole Kure, 	a 	teacher 	interviewed 	by
Babiarz, 	it 	is 	found 	that Babiarz did 	encourage 	the 	teachers 	in
1980 	not 	to 	join CTA for 	at 	least 	a 	year. 	When Babiarz 	learned
that 	three 	of 	the 	teachers 	had 	joined CTA. 	said Leonard, 	he
requested 	that 	Leonard 	speak 	to 	them. 	Leonard 	said 	he 	spoke 	to
one 	teacher 	who 	said 	that 	she 	thought 	it was 	a 	professional
organization and 	she was 	interested 	in 	the 	insurance 	programs.
Apparently this 	did 	not 	satisfy Babiarz. 	who, 	against Leonard's
advice, 	demanded 	that a 	meeting 	be 	arranged. 	Babiarz 	did 	call
them to 	a meeting 	in September 	1981, 	and 	accused 	them of 	having
reneged 	on a 	promise not 	to 	join CTA. 	Babiarz's 	conduct 	led 	to
the 	filing of 	the 	above-described unfair 	practice 	charge. 	As 	a
result of 	a 	settlement 	conference, 	the parties 	executed
settlement 	agreements wherein the District, 	through 	its
"administrators." 	regretted wrongdoing 	regarding 	rights 	of
5Leonard 	testified 	that 	in 	1980. 	the District 	hired 	five
new teachers. 	He 	sat 	in on 	interviews with Babiarz. 	Babiarz
spent 	some 	time with 	the 	teachers 	telling 	them of 	the 	dangers
of 	unionism to 	the District 	and 	asked 	that 	they wait 	a year
before 	joining CTA. 	There were no promises, 	said Leonard, 	by
the 	teachers 	not 	to 	join CTA.
66

employees 	to 	join CTA and 	assured 	them of 	the District's
commitment 	to 	recognizing 	employee 	rights 	to 	partake 	in EERA
activities. 	The District 	further 	agreed 	to 	a PERB-conducted
election 	for 	representation 	by CTA. 	The 	unfair 	practice 	charge
was withdrawn.
Regarding 	the unfair 	practice 	charge, 	Petersen 	said 	the
board 	had 	not 	been aware 	of 	the 	seriousness 	of 	the matter 	and.
when 	it 	occurred, 	"we 	in essence 	said what was 	needed 	to 	be
done apparently has 	been done, 	[that] 	is 	our 	three
administrators were 	reprimanded 	by PERB 	at 	that 	time, 	and we
assumed 	that 	the 	kinds 	of 	things 	there were 	alleged 	and
apparently 	supported would 	be 	terminated." 	The 	board, 	said
Petersen. 	told 	the 	the 	administrators 	that 	it was 	over 	and 	that
they did 	not want 	any more 	of 	that 	activity.
In the 	spring of 	1982, 	there was 	a PERB-conducted 	election
whereat 	the 	teachers 	at 	both 	schools 	voted 	against 	exclusive
representation 	by 	CTA.
Teachers' 	Concerns
In the 	fall 	of 	1981. 	at 	the 	same 	time 	the unfair 	practice
was 	filed 	against 	the District, 	teachers 	at East Cottonwood
provided members 	of 	the 	board 	of 	trustees with a draft
memorandum of 	their 	concerns. 	Petersen 	testified 	that 	the
board 	discussed 	the 	matter 	in 	executive 	session 	and 	determined
that 	he 	and Board Member 	James 	Seale would 	meet with 	the
teachers 	and Leonard. 	They did. 	At 	that meeting, 	Leonard was
77

asked 	to 	leave 	so 	the 	teachers 	could 	speak more 	freely. 	Then,
the 	board members 	and 	the 	teachers went 	over 	the 	list 	of
concerns 	point 	by point. 	At 	the 	conclusion of 	the meeting,
Petersen 	and 	Seale 	stopped 	by Leonard's 	office 	and 	"overviewed
the 	list with him."
Three 	separate 	documents 	were 	submitted 	by 	the District 	as
exhibits 	of 	the 	teachers 	memorandum 	(District Exhibits 	2, 	3 	and
4 ) . 	Mary Jo Montagnor, 	a teacher, 	testified that District
Exhibit 	2 was 	a 	draft and 	the 	other 	documents 	(Districts 	3 	and
4) 	were 	the 	same 	list 	of 	concerns 	but 	in prioritized 	order.
The 	memorandum 	listed 	the 	following:
(1) 	Fear 	by many teachers 	of 	targeted 	"reprisals 	for
expressing 	professional 	opinions 	interpreted 	(or
misinterpreted) 	as disloyal 	or 	critical" 	- 	the teachers
"expected" 	the 	administration 	to 	afford 	them 	the 	professional
courtesy of 	listening 	to 	suggestions 	that 	involve 	students,
staff 	and 	schools without 	the 	reprisals, 	harassment 	or 	ridicule
some 	had 	been subjected 	to 	in the 	past; 	(2) 	Changes 	in teaching
assignments 	in which 	teachers 	believed 	themselves 	misplaced 	and
which appeared 	to 	show a 	pattern of 	reprisal 	and/or 	harassment;
(3) 	Supplies 	locked 	and ditto paper 	rationed, 	causing
inefficiency 	in teacher 	preparation time 	- 	the 	teachers 	asked
the administration to 	trust 	them with a 	key; 	(4) 	Considerable
inconsistency 	in enforcement 	of 	rules 	and 	in disciplinary
actions 	taken with children 	- 	they asked 	for 	consistent 	and
8

uniform disciplinary 	procedures 	throughout 	each 	grade 	level;
(5) 	Inconsistency 	in dealing with special 	children - 	however,
the 	memo 	expressed 	the 	"general 	staff 	opinion" 	that 	the 	fault
was with the 	psychologist; 	(6) 	Frequent 	classroom changes
throughout 	the 	first weeks 	of 	school, 	often necessitated 	by
poor 	original 	student placement; 	(7) 	Homogeneous 	student
placement 	practice unfair 	to 	teachers 	and 	students 	as well;
(8) 	Scheduling 	of 	parent-administration-teacher 	conferences
during class 	time; 	(9) 	Difficulties 	experienced with parents
who 	demand 	parent-teacher 	conferences 	immediately 	to 	discuss
grading 	rationale 	and 	teachers 	suggested 	scheduling 	minimum
days 	just 	before 	issuance 	of 	reports 	to 	accommodate
conferences; 	(10) 	Administration discouragement of 	enrichment
workshops 	and 	seminars 	by 	"ridicule" 	of workshop 	"teaching
staff" 	and 	program value 	and 	lack 	of 	cooperation 	by 	failure 	to
post 	information on 	such programs 	and 	failure 	to 	give 	release
time 	to attend; 	(11) 	Physical 	improvements 	to be 	considered as
a working 	list 	and 	not 	as 	a 	"cognizant 	list" 	- 	these 	included 	a
grassy area 	on the 	playground, 	covered 	cement 	play area, 	water
and 	sinks 	in 	the 	1968 wing, 	black 	top area 	and 	filling of
ditches 	near 	the playground; 	(12	6 	) 	Reduction of workday for
aides 	affecting health and dental 	benefits; 	(13) 	Lack of 	clear
delineation of 	laws, 	rules 	and 	regulations 	insofar 	as 	students.
6
6Also 	included 	in this 	list was 	reference 	to 	third 	and
fourth 	grade 	planning 	period 	each 	day.
9

teachers, 	parents, 	and administrators are 	concerned and a
request 	for a 	synopsis of 	relevant 	laws; 	(14) 	Lack of
recognition 	to 	the East 	Cottonwood 	teachers 	as 	opposed 	to West
Cottonwood 	staff 	for 	success 	in State 	teaching 	programs;
(15) 	Recent 	"apparent administrative policy" 	to 	require as 	a
precondition 	to 	favorable 	consideration 	for 	employment
declining 	to 	join CTA or 	talk 	to 	its 	members 	- 	reference was
made 	to 	the 	unfair 	practice 	charge 	filed 	with PERB 	and 	referred
to earlier 	in these findings.
During 	this 	time, 	the 	board 	held 	a 	closed 	session with
Leonard 	and 	Babiarz 	to 	discuss 	the 	list.7 The 	board 	did 	not
provide 	Leonard 	with 	any written 	communications 	with 	regard 	to
the matter 	because, 	said Petersen, 	the 	list was 	explicit 	about
the 	concerns 	and 	needed 	resolutions. 	There were, 	admitted
Leonard, 	two 	closed 	session meetings 	with 	the 	board 	on 	the
memorandums. 	The 	board 	directed 	Babiarz 	to work with Leonard
on 	the 	problems. 	Leonard 	established 	monthly meetings 	with 	the
teachers 	to 	resolve 	those 	concerns 	and 	others 	they 	could 	bring
up. 	The 	teachers 	reported 	to 	the 	board 	in writing of 	the
outcome 	of 	these meetings. 	Notes were 	provided 	to 	the 	board 	of
the meeting of October 	26, 	1981, 	and a 	second meeting on
October 27, 	1981.
7while 	Petersen 	acknowledged 	that 	the 	memo 	referred 	to
the 	"administration," 	and 	this 	meant Babiarz 	as well 	as
Leonard, 	he viewed 	the 	"overriding" 	problem as 	the 	relationship
between 	Leonard 	and 	the 	teachers.
10

Later, 	in May 1982. 	a 	list was 	forwarded to the 	board by
the 	teachers 	outlining 	the 	issues 	and 	resolutions. 	This
memorandum noted 	the 	following: 	some 	teachers' 	residual
apprehensions 	of 	reprisal, 	harassment or 	ridicule 	for 	their
opinions; 	failure 	to announce summer 	school 	positions; 	great
improvement 	in 	the 	supplies 	and 	ditto 	paper 	problem; 	lack of 	a
uniform discipline 	code; 	the 	problem of 	the 	school 	psychologist
was 	not 	solved; 	some 	student 	classroom changes 	appeared 	to 	be
frivolous, 	made 	in order 	to placate parents; 	attempts 	to
initiate 	heterogeneous 	placement 	through 	teacher
recommendations; 	positive 	effort 	to 	schedule
parent-administration-teacher 	conferences, 	and 	bulletin 	space
provided 	for 	posting 	of 	professional 	notices.
With regard 	to 	the 	physical 	improvements, 	the memo 	noted
that 	the 	grassy area was 	an 	important 	teacher 	concern, 	the
uncovered 	cement 	play area 	under 	construction was 	a 	definite
improvement, 	sinks 	had 	been ordered 	for 	the 	1968 wing and.
finally, 	that 	the 	problem of 	a 	planning period 	for 	third 	and
fourth grade 	had 	not yet 	been 	solved. 	The 	teachers 	expressed
their 	assumption 	that 	the 	matter 	of 	CTA membership 	had 	been
resolved 	and 	concluded with 	the 	observation: 	"As 	a 	result 	of
the 	concern and 	support 	of 	the 	board, 	communications 	between
the 	administrator 	and 	teachers 	has 	improved. 	While 	many
positive 	steps 	have 	been taken, 	many 	items 	await 	closure 	such
11

as teacher placement, 	discipline, 	psychologist, 	grass and
teacher 	planning 	time."
The 	Charging 	Party 	also 	introduced 	a 	letter 	dated
November 	17. 	1982, 	purportedly from the 	faculty at
East 	Cottonwood, 	generally 	indicating 	improvement 	in 	the
relationship 	between 	administration 	and 	staff. 	Leonard
testified 	that 	the 	letter 	was 	given 	to 	him by a 	teacher 	who
told 	him that 	the 	letter was 	also 	going 	to 	the 	board. 	There 	is
no 	corroborating evidence, 	however, 	that 	the board did 	receive
the 	letter.
Toward 	the 	end 	of 	the 	1981-82 	school 	year 	the 	board 	sent 	to
the East 	Cottonwood 	faculty a 	letter 	acknowledging 	the 	list 	of
concerns 	submitted 	by the 	teachers. 	The 	board 	noted 	that 	it
had 	expressed 	its 	deep 	concern 	to 	the 	administrators 	that 	the
conditions 	continue 	to 	be 	addressed 	and 	rectified. 	The 	board
noted 	that 	its 	intention was 	to 	periodically review the 	issues
with 	"our 	leadership 	people 	in 	the 	months 	ahead."
1982 	Pay Raise
In September 	1982. 	Babiarz 	informed 	Leonard 	that 	the 	board
had 	approved 	only a 	$500 	raise 	for 	Leonard. 	Leonard 	had
previously 	gotten 	substantially 	higher 	increases, 	averaging
over 	$2,100 	a year 	salary 	increase 	from 1973. 	According 	to
Leonard, 	Babiarz 	told him that 	the 	lower 	amount was 	granted
because 	the 	board 	was 	unhappy 	that 	teachers 	were 	joining 	CTA.
12

Leonard 	did 	not 	ask 	the 	board 	or 	any members 	the 	reason 	for 	the
variation 	in 	the 	salary 	raise.
Petersen 	denied 	that 	the 	action 	of 	the 	board 	had 	anything
to do with CTA activity. 	There was. 	he 	said, 	no discussion of
the unfair 	practice charge. 	Rather, 	the amount of 	the 	raise
reflected 	the 	issues 	raised 	in 	the 	letters 	from 	the East
Cottonwood 	teachers. 	Because of 	these 	problems, 	the 	board
could 	not 	evaluate 	Leonard's 	performance 	as 	satisfactory as 	the
other 	administrators. 	The 	next year 	Leonard 	got 	a 	$1,000
raise. 	Babiarz was 	given a 	substantial 	raise 	in both 1982 	and
1983. 	Those raises were granted 	to Babiarz, 	said Petersen,
because 	of 	his 	long service with the District, 	some years 	of
which were underpaid, 	and 	the District was 	trying 	to make 	it 	up
to 	him before 	his 	pending 	retirement.
Babiarz 	and 	Unionism
The 	superintendent 	had 	little 	room for 	unionism 	in 	his
District. 	According 	to Betty Washburn, a District witness,
when collective 	bargaining 	came 	into 	being, 	Babiarz 	stated 	to
the 	teachers 	that 	he would 	fire 	anyone who 	joined unions. 	This
was 	corroboration of 	the 	testimony of 	Ramona Phillips, 	another
teacher 	at East Cottonwood. 	Most 	of 	the 	teachers, 	presented 	by
both 	sides, 	testified 	about 	the 	common knowledge 	of 	Babiarz's
8under 	cross-examination, 	this 	action of 	the board 	is 	the
only 	factor 	that 	Leonard 	could 	point 	to 	as 	evidence 	of 	the
board's 	dissatisfaction with his 	position 	on 	teachers 	joining
the union.
13

anti-union feelings. 	As 	noted. 	Babiarz 	solicited 	new employees
to defer 	joining 	the 	CTA for 	a 	period 	of 	time. 	In 	1981 	he
confronted 	three 	teachers 	about 	having 	reneged 	on what 	he
perceived 	to 	be promises 	not 	to 	join the Union. 	This was 	not a
new attitude. 	Nikki 	Sass, 	a District witness, 	testified 	that
11 years 	ago 	she 	asked 	Babiarz 	whether 	she 	should 	join AFT 	or
CTA and 	he 	told 	her 	he 	didn't 	encourage 	her 	to 	join, 	but 	rather
wait 	a year 	to get 	settled 	in. 	There 	is 	no evidence 	that,
after 	the unfair 	practice 	charge was 	settled. 	Babiarz 	engaged
in such conduct again. 	However, 	Babiarz 	continued 	to 	talk 	to
Leonard 	about 	the 	teachers 	who 	joined 	CTA.
In 	1982 	he 	sent 	a note 	to Leonard with an article 	on
teachers' 	strikes. 	He 	requested 	its 	posting on the 	bulletin
board 	noting 	that 	the 	"public 	reads 	the 	board 	a 	great 	deal
too," 	and 	that 	"teacher 	strikes 	are 	news." 	He 	sent 	Leonard 	a
note 	indicating Phillips 	had 	joined 	CTA 	and 	the 	dues 	were 	$230
a 	year. 	He 	sent 	another 	note which pertained 	to 	negotiations.
Babiarz wrote, 	"hope 	it never happens, 	because 	it would 	be one
big mess." 	Babiarz 	told Leonard 	that 	he was 	going 	to 	tell 	the
teachers 	they could 	save 	$230 a year 	if 	they dropped 	out 	of
CTA. 	Babiarz 	told Leonard 	he did 	not 	care 	if 	they filed
another 	unfair 	practice 	charge 	against 	him. 	He 	said, 	"What 	can
they do 	to me now?"
14

Babiarz's 	confidence 	in his 	own 	immunity was 	not 	simply 	his
own view. 	At 	least 	one 	board member. 	Petersen, 	likewise was
aware 	of 	his 	seeming 	invulnerability. 	Petersen was 	asked:
Q. 	Isn't 	it 	true 	that you 	told
Ramona 	Phillips 	that 	even 	though
Joe Babiarz 	was 	presenting 	real 	problems
to 	the District, 	that 	they couldn't 	fire
him, 	that you couldn't fire Mr. 	Babiarz
because 	he 	had 	been 	in 	the District 	some
38 	or 	39 years?
A. 	I'm trying 	to 	-- 	I 	have 	had
conversations 	with Ramona 	Phillips 	over
the 	years 	because 	Ramona 	and 	Frank 	are
personal friends of 	ours. 	I 	don't 	think
that 	the way 	that 	sentence 	is 	stated 	is
what 	I 	may have 	said. 	I'm sure 	that 	I
may 	have 	said 	something 	to 	the 	effect
that 	if 	we 	talked 	about 	that 	issue 	that
obviously when you 	deal 	with 	an
administrator 	for 	many, 	many years,
nearly 40, 	you have a 	great 	concern
about, 	at that point 	in time, 	doing an
attack on them. 	Just 	as we 	had 	a 	great
concern 	for 	Howard 	Leonard
because of 	his 	length in the District,
and 	painstakingly 	came 	to 	our 	decision.
Babiarz 	sent 	articles 	against 	unionism 	to 	Leonard 	and 	directed
him to 	post 	them on a 	bulletin 	board 	next 	to 	Leonard's 	office.
This 	occurred 	even after 	the 	1981 	unfair 	practice 	charge.
Leonard 	testified 	that 	there were 	over 	a 	hundred 	such 	articles.
Following the election 	in 1981, 	Babiarz wrote 	to Leonard
and 	asked 	for 	the 	evaluations 	of 	the 	four 	teachers 	who were
union activists 	leading up 	to 	the 	election. 	Leonard 	said 	"he
dragged 	his 	feet" 	on 	that 	request 	and 	gave 	the 	evaluations 	only
after 	the 	board 	had 	called 	for 	all 	of 	the 	evaluations 	of 	both
schools' teachers.
15

Leonard 	testified 	that 	discussions 	of 	the 	dangers 	of
unionism 	took 	place with 	board 	members 	present. 	Leonard 	never
observed 	such a 	discussion at 	board 	meetings 	but 	"in 	the
general 	course of conversations, 	at different times, 	the
problems 	of 	unionism was 	discussed 	on an 	informal 	basis, 	yes,
with 	board members 	present." 	Yet, 	Leonard 	admitted 	that 	no
member 	of 	the 	board 	has 	ever 	made 	any anti-union 	or 	anti-CTA
statements. 	Neither 	the 	board 	nor 	its 	individual 	members 	has
ever 	expressed 	any 	anti-union views 	directly or 	indirectly 	in
his 	presence. 	At 	the 	time 	of 	the 	formal 	hearing 	in this 	matter
Leonard 	did 	not 	know if 	the 	board 	of 	trustees 	harbored 	any
anti-union 	or 	anti-CTA bias.
Teachers' Evaluations
In 	1983 	the 	board 	requested 	copies 	of 	the 	evaluations 	of
all 	teachers 	in both schools 	in the 	district. 	According 	to
Petersen, 	the 	board was 	ascertaining 	the quality of 	evaluation
by 	its 	administrators. 	At 	a 	board meeting 	in May 	1983 	where
the 	evaluations were 	discussed, 	Babiarz 	criticized 	Leonard 	for
ratings 	he 	gave 	teachers 	on 	their 	dress.g During 	the
discussions 	of 	these evaluations, 	admitted Leonard, 	there was
no 	singling 	out 	of 	teachers 	on the 	basis 	of 	CTA membership.
9Several 	teachers 	confirmed 	that 	Babiarz 	took 	umbrage 	at
female 	teachers 	wearing 	pants. 	Babiarz 	believed 	teachers who
wore 	pants 	should 	not 	get more 	than an average 	rating.
16

SB 	813
Sometime 	in the 	spring of 	1984 	the 	issue 	of 	longer 	day and
longer 	workyear was 	addressed. 	Babiarz 	wanted 	to 	add 	an hour
to 	each day 	for 	the 	K-4 	grades. 	Leonard 	said 	he worked with
his 	teachers 	and 	they developed 	a 	plan 	that would 	meet 	the
requirements 	of 	the 	new 	law and yet 	avoid 	having 	pupils 	spend
an additional 	hour 	at 	school. 	He 	presented 	his 	plan to 	the
board, 	and 	the 	board adopted 	it, 	he 	said.
What was 	viewed 	by Leonard 	as 	evidence 	of 	his 	leadership 	on
this 	issue was 	viewed as 	just 	the 	opposite 	by Petersen, 	and
apparently by 	the 	rest 	of 	the 	board. 	Petersen 	cited 	the
lengthening 	of 	the 	school 	day 	issue 	as 	evidence 	of 	Leonard's
inability to 	come 	to 	a 	decision. 	Leonard 	testified 	that 	"we
had worked 	cooperatively and 	at 	some 	time 	to 	develop 	a 	schedule
so 	that youngsters 	could 	be dismissed within 5 	minutes 	of 	the
time 	they had 	previously 	been dismissed." 	The 	board, 	said
Petersen, 	was 	getting mixed 	signals 	from Leonard 	over 	a 	period
of 	three months. 	While 	recalled 	to 	testify 	in rebuttal,
Leonard 	did 	not 	respond 	to 	the 	testimony 	of 	Petersen on 	this
point.
Leonard's 	Demotion
In June 	1984, 	at a 	closed 	session, 	the board 	told Leonard
that 	he was 	going 	to 	be 	relieved 	as 	principal. 	Babiarz was 	not
at 	that 	meeting. 	A member 	of 	the 	board 	mentioned 	that 	it was
only after 	difficult 	discussions. 	Leonard 	did 	not 	ask 	for 	and
17

was 	not 	given reasons 	for 	the 	board's 	action. 	He 	said 	that 	the
chairman mentioned 	that 	they 	had 	missed 	the March 	deadline 	to
effectuate 	the 	decision 	in 	the 	next 	school 	year.
Sometime 	in the 	spring of 	1984. 	Leonard 	told 	the 	board 	of
Babiarz's 	conduct with 	regard 	to 	unionism. 	Leonard 	said 	he
went 	into 	some 	detail 	about 	the 	September 	1981 	meeting with 	the
teachers 	that 	gave 	rise 	to 	the unfair 	practice 	charge.
Petersen 	said 	this 	came 	after 	the 	board 	had 	told 	Leonard 	of
their 	decision to 	remove 	him as 	principal. 	Placing 	the 	blame
on Babiarz, 	said Petersen, 	was 	an 	indication that Leonard did
not 	comprehend 	the 	problem of 	his 	own performance.
Petersen 	testified 	that 	the 	board 	determined, 	in 	the 	spring
of 	1984, 	to reassign Leonard. 	Babiarz, 	said Petersen, 	was not
involved 	in 	the decision. 	Petersen 	said 	that 	because 	of
Leonard's 	inability 	to 	communicate 	to 	the 	board 	and 	act 	in a
decisive 	manner, 	and 	because 	of 	the 	long-term problems 	alleged
in 	the 	teachers 	memorandum, 	the 	board 	had 	come 	to 	the 	end 	of
the 	line. 	He 	said 	that 	because 	of 	Leonard's 	inability to
communicate with the 	board 	of 	trustees, 	as 	evidenced 	by 	several
years where, 	meeting after 	meeting, 	the 	board 	received no
definitive 	recommendations 	and 	answers 	from Leonard, 	and
because 	of 	the 	1981 	teachers 	concerns, 	the 	board determined
that 	it 	had 	a 	serious 	personnel 	problem and 	it 	had 	to 	"bite 	the
bullet." 	There was. 	said Petersen, 	no discussion of 	the prior
unfair 	practice 	charge, 	unionism and CTA. 	nor 	of 	teachers 	in or
out 	of 	CTA.
18

Petersen 	testified 	that 	Babiarz 	had 	not 	been 	involved 	in
the decision 	to 	demote 	Leonard. 	He 	said 	the 	board 	initially
asked Babiarz 	to work with Leonard 	on 	the 	problems 	of
leadership 	and 	nonresponsiveness 	on 	issues. 	The 	board 	had
discussions 	with Babiarz 	about 	Leonard's 	performance. 	Rickert
testified 	that 	Babiarz 	provided 	evaluations 	and 	the 	board
decided 	to 	demote Leonard. 	Babiarz 	made 	no 	recommendation
about Leonard's demotion, 	he said. 	Powers 	stated. 	"After 	three
and 	one-half years 	of 	evaluating 	the 	situation. 	I 	think our
determination, 	upon recommendation, 	our 	evaluation and dealings
with Mr. 	Babiarz. 	. . . " 	the 	board 	decided 	to 	demote Leonard.
There were 	no 	prior written evaluations 	of 	Leonard, 	said
Petersen. 	because Babiarz was 	not adept at written
evaluations. 	They had 	asked Babiarz 	to work on 	the 	situation
after 	the 	1981-82 	problems, 	but 	had 	required nothing 	in
writing, 	prior to 1984.
They 	asked 	Leonard 	for 	a 	letter 	of 	resignation 	several
times. 	The 	board was 	determined 	to 	remove Leonard 	in a
non-public manner 	to 	save 	him embarrassment. 	It 	did 	not want
to 	fire 	him publicly, 	said Petersen.
Later, 	before November. 	Leonard was 	asked 	to 	give 	the 	board
a 	letter. 	He understood 	it 	to 	be a 	letter 	of 	resignation or
request 	for 	reassignment.
19

On November 	21, 	at 	a 	closed 	session, 	the 	board 	presented
Leonard with a written evaluation.in There was 	no 	discussionl
of 	the evaluation, 	said Leonard, 	and 	he asked 	no questions
1 0 The Evaluation 	is 	set 	forth 	in full:
1. 	Mr. 	Leonard, 	you do 	a 	satisfactory 	job with parents 	and 	are
interested 	in 	the 	students 	and 	their 	achievements. 	You 	spend
much 	time with 	students 	at 	recess 	and 	during 	the 	Physical
Education classes. 	However, 	we feel 	that you should 	be
supervising and 	not 	be 	spending 	the 	time 	as 	a 	teacher. 	The
school 	has 	more 	than enough personnel 	for 	its 	operation, 	but
they 	do 	need 	dynamic 	leadership.
2. 	All 	of 	your 	satisfactory accomplishments were 	taken 	into
consideration, 	but despite 	these points, 	your 	essential 	and
main duties 	are working with 	staffs 	in 	supervision and
evaluations.
3. 	Your 	ability to 	lead 	and 	evaluate 	the 	staff 	is 	inadequate.
You are 	unable 	to 	create 	staff 	enthusiasm, 	motivation and 	at
the 	same 	time 	keep 	and 	instill 	confidence 	in your 	position as
the Principal. 	Your authority, 	as 	the Principal, 	has 	been
eroding 	over 	the 	past years. 	This 	we 	have 	endeavored 	to 	point
out 	in our 	meetings with you, 	time 	and 	time again.
4. 	We, 	the board, 	have held a number 	of 	closed sessions with
you during 	the 	past 	two years.
5. 	Two 	of 	the 	board members met with you 	and 	the 	staff 	on 	two
occasions 	last year. 	The 	board 	has 	held 	a 	number 	of 	closed
sessions 	as 	follow-up meetings with you. 	We 	see 	no 	improvement
in your 	total 	ability to 	continue 	to 	administer 	the 	school.
You always 	give us 	the 	same 	impression; 	there 	are 	no 	problems
and 	everything 	is 	satisfactory. 	Since you 	do 	not 	even 	recognize
or 	accept 	the 	deficiencies 	we 	have 	been discussing 	and
endeavoring 	to 	point 	out 	to you, 	there will 	be 	no degree 	of
improvement.
6. 	The 	board 	and 	the 	Superintendent 	must 	get 	involved 	in 	school
decisions 	and 	enforcements 	which 	belong 	at 	the 	Principal's
level, 	who 	is 	the 	immediate on site administrator. 	This 	is
your 	essential 	duty! 	Your 	weakness 	was 	again evident 	this
year, 	when 	it 	came 	time 	for you 	to 	lengthen the 	kindergarten,
first 	and 	second 	grade 	class 	schedules 	to 	meet 	the 	requirements
20

about 	it. 	The 	chairman did 	tell 	him that 	they wanted 	the 	letter
by the December 	board meeting. 	He 	responded, 	he 	said, 	that 	he
thought 	that 	he 	had until 	February, 	and 	the 	chairman said 	that 	he
wanted 	it 	earlier 	so 	they could 	start 	looking 	for 	someone 	else.
Petersen. 	Rickert 	and 	Powers 	testified 	about 	the 	problems
they saw with Leonard's 	performance. 	From 1982 	on. 	said
Petersen, 	the 	board 	saw an 	increasing 	inability of 	Leonard 	to
respond 	to 	questions 	from 	the 	board. 	On 	issues 	regarding
physical 	facilities, 	such as 	the play yard, 	carpets 	and 	sinks 	at
the East 	School, 	Leonard was 	not 	prepared 	to make
recommendations. 	Teachers 	were 	coming 	from 	the 	school 	directly
to Babiarz 	and 	the 	board 	for 	resolution. 	Said Petersen,
As we 	asked 	for 	recommendations, 	they were
either 	not 	forthcoming 	or 	very 	hesitatingly,
and 	I 	would 	say grudgingly forthcoming, 	was
the 	problem. 	It's 	a 	problem of 	do we
present 	cogently and 	strongly 	and 	in an
effective 	way 	recommendations 	for 	those
factors 	affecting 	the 	school. 	And 	our
contention 	is 	that 	the 	frustration 	that we
had 	to 	deal 	with 	over 	the 	years was 	again
and 	again, 	Howard 	did 	not 	effectively and
cogently 	and 	strongly 	respond. 	And we were
left 	on the 	limb wondering where 	he was.
of 	SB 	813. 	You are unable 	to 	render 	firm and decisive 	decisions
involving 	possible 	controversial 	matters.
7. 	All 	of 	the 	board 	members 	have 	lost 	confidence 	in your
ability 	to 	administer, 	supervise and 	evaluate 	staff. 	We 	feel
you 	have 	lost your 	effectiveness 	in pursuing our 	standards, 	as
the Principal 	of 	the East Cottonwood Grade School, 	in grades
kindergarten 	through 	the 	fourth 	grade.
21

Powers 	testified 	that 	at 	one 	board 	meeting 	a 	teacher 	from East
Cottonwood 	stood 	at 	the 	back 	of 	the 	room expressing 	concern
about 	the 	black 	top 	area 	at East 	School.
Petersen 	said 	that 	carpeting 	in 	some 	rooms 	at East
Cottonwood 	became 	an 	issue 	and 	Leonard 	could 	not 	develop 	a
specific 	recommendation. 	Finally, 	Babiarz 	intervened 	and 	had
carpeting installed. 	Leonard, 	in rebuttal, 	testified 	that he,
Leonard, 	and 	the 	custodians 	preferred 	tile 	floors 	for
maintenance 	and 	cleanliness, 	but he was 	not 	sure 	if 	he ever
told 	the 	board 	his 	position. 	Other 	issues where 	Leonard's
management was 	deficient, 	testified Petersen, 	included 	drapes,
playground 	equipment, 	fencing and 	grassy areas 	for 	the 	school.
The matter 	of 	use 	of 	the 	school 	psychologist's 	time was 	a
problem. 	Referred 	to 	in the 	1981 	teachers 	letter 	of 	concerns,
it 	surfaced 	again 	in 1984, 	after 	the 	board 	had made 	its
decision 	to 	relieve 	Leonard. 	Still 	another 	problem was 	the 	use
of 	the music 	teachers' 	time, 	brought 	to 	the board's 	attention
by 	the 	teacher 	representative who 	attended 	the 	board 	meetings.
Leonard 	did 	not 	take 	a 	stand 	on 	the 	issue 	of 	the 	mentor
teacher 	program, 	in conjunction with SB 	813, 	said Petersen.
Babiarz was 	against 	it, 	Osborn was 	in favor 	of 	it, 	and Leonard
said 	not much at 	all. 	It was 	a 	matter 	of 	contrasting 	examples
of 	leadership, 	said Petersen.
22

During 	board 	discussions 	of 	the 	teachers' 	evaluations,
while 	there were 	no 	pointed 	comments 	of 	Leonard's 	evaluation
techniques, 	there were discussions 	about 	the absence 	of
constructive 	criticisms 	by Leonard. 	The 	board's 	attorney wrote
Leonard 	a 	letter 	at 	some 	point 	indicating 	the 	need 	to 	tighten
up 	on evaluations.
Rickert 	testified 	that 	Leonard 	never 	seemed 	to 	have 	any
problems 	at 	the 	school. 	He 	drew his 	judgments 	about 	lack of
communication 	between Leonard 	and 	his 	teachers 	from discussions
in 	the 	community where 	he 	operated 	a 	butcher 	shop.
On cross-examination. 	Rickert 	testified 	that 	the 	statement
in 	the November 	evaluation 	regarding 	Leonard's 	time 	spent with
students 	at 	recess 	came 	from patrons 	of 	Rickert's 	butcher
shop. 	Rickert 	did 	not 	draw any conclusions 	about 	the matter
from his 	limited 	exposure 	to 	the 	school, 	but 	from the 	comments
of 	people 	in Cottonwood. 	He 	could 	not 	identify 	the 	persons 	who
made 	the 	comments. 	While Rickert 	never 	discussed 	this 	specific
matter 	with Leonard 	personally, 	he 	did 	ask Leonard 	the 	more
general 	question of what 	he 	did with his 	time at 	the 	school.
Leonard 	did 	not 	respond. 	Said Rickert. 	"I'm not 	trying 	to 	be
smart, 	but 	he doesn't answer. 	He 	just mumbled. 	I'm sorry.
23

Howard, 	but that's 	the way it 	is, 	and 	I 	couldn't get a clear
response 	from 	him."
Rickert 	had 	three 	children who 	attended 	the 	school 	and 	he
knew Leonard 	as 	a 	parent. 	Leonard 	had 	"nothing 	but 	good 	things
to 	say about 	children" 	and 	that was 	one 	of 	his 	good 	points.
One of Leonard's 	satisfactory qualities, 	as noted, 	said
Rickert, 	was 	that 	Leonard 	never 	"said 	anything 	bad 	about
anybody." 	Rickert 	felt 	Leonard 	could 	not 	communicate with 	the
board; 	Leonard 	would 	talk 	for 	an hour 	and 	Rickert would 	not
understand what 	he was 	talking 	about. 	Leonard's 	method 	of
criticism of 	teachers was 	lacking 	in 	that 	he would 	not 	try 	to
help 	them out. 	This was 	a 	general 	feeling 	that 	he 	got 	from
people 	in 	the 	community. 	He 	could 	not 	identify any 	teacher
whom he 	felt 	did 	not 	get 	help 	from Leonard.
Powers 	testified 	that, 	when he 	came 	onto 	the 	board 	in 1981,
it 	seemed 	obvious 	to 	him that Leonard's 	staff 	showed 	a 	lack of
respect 	for 	him. 	He 	picked 	this 	up 	by the 	attitude 	of 	the
number 	of 	teachers 	from East 	Cottonwood 	School 	that 	appeared 	at
the 	board meetings. 	He 	named 	three 	teachers 	he 	thought 	showed
this 	lack of 	respect 	although he 	could 	recall 	no 	specific
comments. 	His 	view was 	fueled 	by the 	continued 	presence 	of
teachers 	from 	that 	school 	at 	board 	meetings.
But 	it would was 	pretty obvious 	to me 	that
we 	had 	always 	a 	bunch of 	people 	from East
Cottonwood, 	the 	staff 	at East Cottonwood.
coming 	to 	our 	meetings 	with 	concerns 	and
whatever 	that 	I 	felt 	should 	have 	been
24
.

handled 	at 	the 	site 	level. 	And 	then we
didn't 	have 	any 	problems 	with 	teachers
coming 	in 	and 	bypassing 	our 	administrator 	at
West 	and 	directing 	things 	to 	the
superintendent 	and 	the 	board.
There were more 	teachers 	coming 	to 	board 	meetings 	from the East
School, 	over 	and 	above 	the usual 	representatives 	from each of
the 	two 	schools, 	who 	he 	sensed were 	not 	happy with things 	at
East 	School. 	He 	cited 	an example 	of 	lack of 	communication
where 	the 	teachers' 	request 	for 	a 	full-time 	physical 	education
teacher 	was 	denied 	by the 	board. 	Thereafter, 	Leonard 	failed 	to
tell 	the 	teachers 	that 	the 	board 	had 	denied 	the 	request, 	and
the 	teachers 	returned wanting 	to 	know about 	the 	issue.
All 	three 	board members 	testified 	that 	the 	decision 	to
relieve 	Leonard was 	unrelated 	to 	teachers 	at East 	joining CTA.
The December 	19. 	1984, 	Board Meeting
This 	meeting was 	held 	in 	the West 	Cottonwood 	gymnasium,
unlike usual 	meetings, 	to 	accommodate 	the 	large 	crowd 	in
attendance. 	After 	demand 	by members 	of 	the 	audience 	for 	the
reasons 	for 	the 	proposed 	reassignment 	of 	Leonard 	to 	a 	teaching
position, 	the 	board 	took 	the 	position 	that 	it 	could 	not 	speak
to 	the 	particulars 	of Leonard's 	case 	because 	it 	did 	not 	have 	a
release 	from Leonard 	to 	discuss 	the matter 	in public. 	Leonard
then executed 	a 	release.
From 	the 	board 	members 	themselves 	and 	those who 	testified
at 	the hearing about what was 	said, 	there 	is 	little 	conflict.
The 	audience was 	in 	support 	of 	Leonard 	and 	his 	retention as
25

principal. 	Several 	people 	spoke 	on behalf 	of 	Leonard. 	A
favorable 	survey of 	families 	with children at East 	and 	of 	the
aides 	employed 	there was 	presented. 	Yet 	the 	board 	remained
firm. 	The reasons 	for Leonard's 	removal, 	articulated at 	the
meeting, 	included 	a 	statement 	by one 	board member 	that Leonard
could 	not 	"stir 	the 	soup." 	One 	board 	member 	stated 	that 	he
couldn't 	remember 	the 	reasons. 	Petersen. 	testified Leonard,
said 	that 	"Leonard 	lacked 	leadership 	and 	that 	time 	and 	again
the 	board 	had 	looked 	to 	him for 	leadership 	and 	found 	it
lacking."
The 	thrust 	of 	this 	case 	turns 	upon 	the 	statement 	of 	the
board chairman, 	Mr. 	Rickert. 	He stated. 	"His 	leadership 	is 	too
weak. 	When 99 	percent 	of 	the 	teachers 	at his 	school 	have
joined 	the union, 	and no 	teachers 	at 	the 	other 	school 	have
joined, 	that 	tell's 	you 	something about 	his 	leadership."11	11
By way 	of 	explanation Rickert 	testified:
Q. 	Okay. 	It 	seems a fair 	reading of 	the
statement 	I 	just 	read 	to you 	that you're
implying 	something 	about 	the 	relationship
of 	leadership 	of 	an administrator 	and
employees 	belonging to unions. 	What do
you mean, 	or 	did you mean 	that 	inference?
A. 	No. 	my statement, 	in my probably 	limited
way, 	was 	trying 	to 	compare 	the 	two
schools with the 	same school 	board, 	the
same 	superintendent, 	the 	same 	salary
schedules, 	the same benefits, 	the same
everything, 	and yet 	in one 	school we 	had
turmoil, 	a complete lack of
communication 	between 	our 	administrator
11Rickert 	did 	not 	deny making 	the 	statement. 	He
testified 	that 	he 	might 	have 	said 	the 	majority 	of 	the 	teachers.
26

and 	ourselves, 	and 	the 	administrator 	and
the 	teachers; 	and at 	the 	other 	one we
had open communications, 	with no
problems 	that 	I 	knew of whatsoever with
our 	communications.
Q. 	Which 	school 	had 	communication 	problems?
A. 	The East Cottonwood 	School 	had
communication 	problems.
Q. 	Do you 	-- 	in your mind, 	when you made
this 	statement 	that 	I 	just 	read to you.
was 	there 	any 	relationship 	between 	the
allegation that Mr. 	Leonard's 	leadership
was weak and 	your 	belief 	that 	his
teachers, 	many of 	them had 	joined 	the
California 	Teachers 	Association?
A. 	Well, 	I 	felt 	that they needed 	someone,
they 	needed 	help.
This 	statement 	by Rickert, 	along with the 	1982 	salary
increase 	as 	explained by Babiarz, 	is 	the 	pinpoint 	of 	Leonard's
contention 	that 	the 	board 	removed 	him 	from 	the 	principalship
because 	of 	the 	teachers' 	union activity. 	One witness 	for
Leonard, 	however, 	interpreted 	the meaning of 	the 	statement
consistent with Rickert's 	explanation. 	Nicole Kure 	testified
that 	the 	remark 	" . . . 	made 	it 	look 	like 	or 	that 	they had
surmised 	that 	therefore 	the 	teachers 	at East 	joined 	because 	of
Mr. 	Leonard 	and 	the 	teachers 	at West 	did 	not 	feel 	that 	they
needed 	it." 	While 	their 	expressed 	reasons 	for 	the 	reassignment
were not acceptable 	to 	the audience, 	the 	board nonetheless,
after 	a 	two-hour 	closed 	session, 	announced 	that 	the
reassignment was 	to 	stand.
Later, 	in January, 	Leonard 	asked 	that 	the 	comments 	given by
the 	board 	be 	inserted 	in the minutes. 	That 	request was
27

refused. 	Rickert 	said 	he'd 	never 	had 	a 	request 	like 	that
before 	and 	that 	he 	denied 	the 	request 	under 	advice 	of 	counsel,
Later, 	the 	board 	sent 	to 	Leonard 	a written statement 	of 	the
12
reasons 	for 	his 	reassignment.
12That 	statement, 	dated January 23, 	1985 provided:
In accordance with your 	request 	and 	the
provisions 	of 	Education Code 	Section 44896.
the 	following 	is 	a written statement 	of 	the
reasons 	for 	your 	transfer 	from an
administrative 	to 	a 	teaching 	position:
The Board 	has 	received 	serious 	allegations
from your 	teachers 	over 	the 	years 	regarding
your 	inconsistent 	personnel 	relations 	and
your 	inadequate 	leadership. 	You 	failed 	to
timely 	take 	action on 	these 	allegations.
You 	took 	action 	only 	after 	repeated
direction 	from 	the Board. 	You 	have 	failed
to 	carry out your 	duties 	as 	a 	principal.
You 	have 	increasingly 	refrained 	from 	seeking
the 	support 	and 	counsel 	of 	the
Superintendent. 	You have 	failed 	to
recognize 	your 	own 	faults 	and 	inadequacies
and 	have wrongfully 	blamed 	others 	or 	denied
that 	any faults 	or 	inadequacies 	exist. 	Your
follow through 	on parental 	complaints 	to 	the
Board 	has 	been evasive. 	You 	have 	not 	been
willing 	to 	take 	a 	stand 	nor 	make 	any
decisions 	on key issues, 	including the
implementation of 	the 	provisions 	of 	Senate
Bill 	813. 	You have 	been evasive 	and
noncommital 	in response 	to 	the Board's
questions 	regarding 	issues 	facing East
Cottonwood 	School. 	You 	have 	refused 	to 	deal
with 	the 	problems 	and 	issues 	pointed 	out 	to
you 	by 	the Board 	of 	Trustees 	and 	indeed 	deny
that 	there 	are 	any problems 	or 	inadequacies
in your 	performance. 	Your 	ability to 	lead,
supervise 	and 	evaluate 	the 	staff 	is 	not
satisfactory. 	You 	cannot 	adequately make
administrative 	decisions 	and 	properly
enforce 	the decisions which belong at 	the
principal's 	level. 	You fail 	to
28

Several 	teachers 	testified 	on 	behalf 	of Mr. 	Leonard.
Nicole Kure, 	who was 	no 	longer 	teaching at 	the District,
testified 	that 	Leonard 	was 	an 	honest 	administrator 	and 	good
leader. 	She had 	no 	difficulties with his 	decision-making.
Kure 	corroborated 	the 	nature 	of 	the 	1981 meeting with Babiarz.
Leonard 	gave 	her 	high 	performance 	evaluations 	but 	every year 	he
rated 	her 	only fair 	on her 	dress 	because 	her 	dress 	wasn't
professional 	enough for 	the District. 	She 	felt 	Leonard 	was
very responsive 	to 	teachers' 	concerns 	at 	the meetings 	that
began 	in 	1981 	following 	the unfair 	practice 	charge.
Emagale 	Snider 	testified 	that 	Leonard 	presented 	no
difficulties 	as 	an administrator.
Ramona Phillips, 	one of 	the writers 	of 	the 	letters 	to the
board 	regarding problems 	at East, 	testified 	that 	conditions 	at
the 	school 	improved 	substantially after 	the 	letters 	to 	the
board 	in 	1981. 	Leonard was 	responsive 	and 	supportive 	of 	the
teachers.13	13
create 	staff 	enthusiasm. 	You 	fail 	to
motivate 	the 	staff. 	You 	fail 	to 	implement
the 	direction 	from 	the 	Board 	for 	improved
and 	increased 	communication with 	your
teachers.
In conclusion, 	the Board 	of Trustees has,
unanimously, 	lost 	faith 	in your 	ability to
serve 	as 	an administrator 	of 	the District.
13Phillips 	testified 	that 	the 	teachers 	were 	asked 	to
write 	the 	letter 	to 	the 	board. 	It 	is 	not 	clear who 	asked 	the
teachers.
29

Phillips, 	a friend of Petersen. 	called Petersen before 	the
December 	meeting 	to 	inquire 	about 	Leonard's 	demotion. 	Petersen
refused 	to discuss 	the particulars, 	because 	of 	confidentiality,
but 	did 	tell 	her 	that 	the 	board would 	not 	change 	its 	mind 	about
removing Leonard. 	Leonard, 	she 	said, 	never 	said 	anything bad
about 	the board or Babiarz; 	"In fact, 	he went 	exactly the
opposite. 	He went 	out 	of 	his way to 	stand 	behind 	the Board 	and
the 	administration."
Paula Mattos, 	an aide, 	testified 	that Leonard was very
supportive 	of 	the 	aides 	and 	responsive 	to 	their 	concerns.
Dana Byers. 	a 	teacher 	at East 	Cottonwood and 	one 	of 	the
teachers 	interviewed 	by Babiarz 	in 	1981, 	testified 	that 	Leonard
was 	very 	supportive 	of 	the 	teachers 	and 	gave 	fair 	and 	honest
evaluations. 	She 	joined 	CTA 	in part 	because 	of 	Babiarz
attitudes 	as 	an administrator. 	She 	hesitated 	in 	joining
because 	of 	his 	speech at 	her 	interview. 	Byers 	testified 	that,
at 	a meeting regarding 	the 	longer 	day 	issue, 	a 	board member
whom she 	could 	not 	identify, 	said 	that 	the 	teachers 	"really
didn't 	have any say" 	on the 	issue.
Carol Taff. 	a 	teacher's aide at East Cottonwood. 	a parent
of 	children 	in 	the 	school 	and 	for 	14 	years 	an active member 	of
the PTA, 	testified 	that Leonard 	is 	a great 	leader, 	good 	student
disciplinarian 	and 	able 	to 	create 	staff 	enthusiasm.
In addition to Board Members Petersen, 	Powers 	and Rickert,
several 	teachers 	testified 	on behalf 	of 	the District. 	They
30

were: 	Betty Washburn, 	18 years with the school; 	Nelva Denbo.
9 years; Mary Jo Montagnor. 	18 years; 	Kathy Columbo, 	6 years;
Jacqueline Long. 	20 years; 	and Nikki Sass, 	11 years with the
District.
Several 	of 	these 	teachers 	annunciated 	at 	least 	four 	general
problems with Leonard's 	principalship. 	These 	problems were 	a
lack of 	coordination of 	curriculum among the grades, 	lack of
coordinated 	textbook 	selection, 	lack 	of 	homogeneity 	in 	classes
(excess 	of 	low achievers 	in a 	class) 	and 	problems with
Leonard's 	pupil 	disciplinary practices. 	They also 	complained
about 	lack of 	support for 	the 	teachers, 	lack of 	follow-through,
and 	of 	poor 	evaluations 	by Leonard.
While 	these 	teachers 	were 	paid 	by 	the District 	for 	their
time 	preparing 	to 	testify, 	it 	appears 	that 	they first 	came
forward 	to 	volunteer 	their 	services 	in 	support 	of 	the
District's 	case 	and 	then were 	advised 	of 	the 	availability 	of
compensation. 	I 	make no findings 	on these complaints, 	however,
as 	the 	board, 	not 	the teachers, 	took the action against
Leonard. 	Moreover, 	the 	specific 	complaints 	by the 	teachers 	did
not 	form the 	basis 	for 	Leonard's 	demotion. 	Rather, 	as
discussed 	supra, 	the 	board 	issued 	its 	evaluation of 	Leonard,
and 	the 	evalution was 	the 	basis 	for 	the 	demotion, 	not 	the
teachers' complaints.
STATEMENT OF 	ISSUES
The 	issues 	in 	this 	case 	are 	(1) 	whether 	John Howard Leonard
had 	standing 	to 	file 	an unfair 	practice 	charge 	against 	the
31

Cottonwood Union School District, 	and 	(2) 	whether 	the
Cottonwood 	Union 	School 	District 	governing 	board 	assigned
Mr. 	Leonard 	to 	a 	teaching 	position 	in retaliation for 	his
exercise 	of 	rights 	protected 	under 	the 	Educational 	Employment
Relations Act.
CONCLUSIONS 	OF 	LAW
John Howard 	Leonard's 	Standing 	to 	Bring 	an Unfair 	Practice
Charge.
The District's 	answer, 	by way of 	affirmative defense 	to 	the
complaint, 	asserted 	that 	Charging Party was without 	authority
under 	law to 	bring 	the unfair 	practice 	charge 	against 	the
Respondent. 	As 	a 	separate 	defense 	the District 	affirmatively
alleged 	that 	the 	Charging Party 	is 	a 	management 	employee within
the meaning of Government Code section 3540.l(g). 	In its
opening 	brief 	the 	Respondent 	reaffirmed 	its 	contention 	that
Charging Party 	is 	a 	management 	employee 	and 	further 	alleges,
for 	the 	first 	time, 	that 	Charging Party 	is without 	standing 	to
bring the unfair 	practice 	charge 	because 	he 	is 	a 	confidential
employee within 	the 	meaning 	of 	Government 	Code
section 3540.l(c).
Both 	contentions 	must 	be 	rejected. 	Government 	Code
section 	3540.l(g) 	defines 	management 	employee 	as 	"any employee
in a 	position having 	significant 	responsibilities 	for
formulating 	district 	policies 	or 	administering 	district
programs." 	In 	interpreting 	this 	provision PERB 	has 	held 	that
32

an employee 	can be 	found 	to 	be managerial 	only 	if 	it 	is
established 	that 	the 	employee 	had 	significant 	responsibilities
for 	both 	the 	formulation of 	district 	policy and 	the
administration 	of 	district 	programs. 	Lompoc Unified 	School
District 	(1977) 	EERB Decision No. 	1 3 . 1 4 See also
Franklin-McKinlev School District 	(1979) 	PERB Decision No. 	108.
As 	was 	stated 	in Hartnell 	Community College 	District 	(1979)
PERB Decision No. 	81;
The 	formulation 	of 	policy 	contemplates 	the
exercise 	of 	discretionary 	authority 	to
develop 	and 	modify 	institutional 	goals 	and
priorities. 	The 	administration of 	programs
contemplates 	effective 	implementation 	of 	the
policy 	through 	the 	exercise 	of 	independent
judgment. 	Thus, 	managerial status
contemplates 	those 	persons 	who 	have
discretion 	in 	the 	performance 	of 	their 	jobs
beyond 	that which must 	conform 	to 	an
employer's 	established 	policy.
In the 	present 	case 	there 	is 	no 	evidence demonstrating what, 	if
any. 	judgments 	regarding District 	policies 	Leonard was 	entitled
to exercise. 	Indeed, 	there 	is 	no evidence 	suggesting Leonard
had 	any 	role 	at 	the District 	level. 	At most 	it 	appears 	that 	he
was 	in charge 	of 	the 	federal 	programs 	at East 	Cottonwood
School. 	He 	prepared 	the 	budget 	and 	submitted 	it 	to 	the
superintendent, 	who amalgamated 	it 	into 	his 	budget 	for
presentation to 	the 	board. 	Leonard, 	in addition, 	completed
14Prior 	to 	January of 	1978 	the PERB was 	known as 	the
Educational 	Employment Relations 	Board 	or 	EERB.
33

forms 	promulgated 	by 	the 	County Office 	of 	Education 	concerning
such 	federal 	programs 	and 	returned 	those 	to 	the 	County Office
of Education. 	It 	appears 	all 	of 	this was 	done within the
policies 	and 	procedures 	adopted 	by 	the 	board 	of 	trustees 	of 	the
Cottonwood 	School 	District.
Leonard, 	as 	principal of 	the East Cottonwood School, 	did
not 	have 	significant 	responsibilities 	for 	formulating District
policies 	or 	administering District 	programs. 	While 	Cottonwood
is 	an extremely small 	school 	district, 	with only a
superintendent 	and 	the 	two 	site 	principals 	as 	administrators,
there 	is no evidence 	showing what role, 	if any. 	Leonard had 	in
formulating District 	policies 	or 	administering District
programs. 	As 	is discussed 	below, 	Leonard's 	role was 	related
solely and 	strictly 	to 	the East 	Cottonwood 	School.
The District's 	contention 	that 	Leonard was 	a 	confidential
,c
employee15 is 	rejected 	because 	the District 	has 	failed 	to
timely assert 	this 	contention 	in defense 	of 	the 	charge. 	See
PERB 	regulation section 32644. 	For 	the 	first 	time, 	in 	its
opening 	brief, 	the District 	asserts 	that Leonard was 	a
confidential 	employee. 	No 	such 	contention was 	raised 	in 	its
15Section 	3540.l(c) 	provides 	that:
"Confidential 	employee" 	means 	any employee
who. 	in the 	regular 	course of 	his or 	her
duties, 	has access to. 	or possesses
information relating to. 	his 	or 	her
employer's 	employer-employee 	relations.
34

answer 	or 	at 	the 	formal 	hearing 	in this 	matter. 	That 	defense
is 	accordingly waived.16	16
Rather, 	the 	evidence 	justifies 	a 	finding that 	Leonard was
in 	fact 	a 	supervisory employee 	under 	Government 	Code 	section
3540.l(m). 	Supervisory employee means:
. 	. 	. 	any employee, 	regardless of job
description, 	having authority 	in the
interest of 	the employer 	to 	hire, 	transfer,
suspend, 	lay off, 	recall, 	promote,
discharge, 	assign, 	reward, 	or discipline
other 	employees, 	or 	the responsibility to
assign work to and direct 	them, 	or 	to adjust
their 	grievances, 	or 	effectively recommend
such action, 	if. 	in connection with the
foregoing functions, 	the 	exercise of 	that
authority 	is 	not 	of 	a merely routine or
clerical 	nature, 	but requires 	the use of
independent 	judgment.
PERB 	has 	held 	that 	the 	satisfaction of 	the 	any one 	of 	the
supervisory 	criteria 	enumerated 	in 	the 	statutory 	definition 	is
sufficient 	to make an employee 	a 	supervisor. 	See 	footnote 	4 	in
San Rafael City Schools 	(1977) 	EERB Decision No. 	32.
The 	evidence 	here does 	not 	show what authority, 	if 	any,
Leonard had to hire, 	transfer, 	suspend, 	lay off, 	or 	to
16Moreover. 	there 	is 	insufficient 	evidence 	to 	establish
Leonard 	as 	a 	confidential 	employee. 	The District's 	post-hearing
brief 	cites 	several 	PERB 	cases 	relating 	to 	secretaries 	or
principals 	whose 	duties 	included 	having 	access 	to 	materials
relating 	to 	negotiations. 	There 	is 	no 	evidence 	in this 	case,
however, 	that 	Leonard had 	access 	to 	any 	information relating 	to
negotiations. 	Petersen did 	testify 	that Babiarz 	made
recommendations 	on teachers' 	salaries 	and 	he 	"assumed" 	such
recommendation 	came 	after 	deliberations 	with 	the 	principals.
This 	assumption 	is 	insufficient 	to 	establish Leonard's
involvement 	in negotiations.
35

discharge employees. 	Clearly his 	role 	as 	a principal,
providing 	performance 	evaluations 	and 	assigning work 	to
teachers 	and 	aides 	point 	to 	supervisory status. 	Leonard's 	role
in the 	1981 response 	to 	the teachers' 	complaints about
conditions 	at East 	Cottonwood 	School 	reflect 	his 	authority 	to
adjust 	teachers' 	grievances. 	In these areas Leonard displayed
an 	independent 	discretion 	beyond 	a 	routine 	or 	clerical 	nature
that 	justifies a finding that, 	in fact, 	he was 	a 	supervisory
employee.
Section 	3540.l(j) 	defines 	a 	public 	school 	employee as:
. 	. 	. 	any person employed by any public
school 	employer 	except 	persons 	elected 	by
popular vote, 	persons 	appointed 	by the
Governor of 	this 	state, 	management
employees, 	and confidential employees.
Having found Leonard 	to 	be a 	supervisory employee, 	it 	is
necessary 	to 	examine 	the 	statutory 	rights 	given 	to 	him under
the EERA 	to 	determine whether 	the District's 	action 	in
assigning Leonard 	to 	the 	teaching 	position was 	a 	violation of
that Act.
Under 	section 	3543.5(a) 	the 	employer 	is 	precluded 	from
imposing 	reprisals 	or 	threats 	of 	reprisals 	and 	from
discriminating 	against 	an 	employee 	because 	of 	the 	exercise 	of
his 	or 	her 	rights under 	the Act. 	A part 	of 	those 	rights 	is
articulated 	in section 	3543. 	which guarantees 	the 	right 	to
participate 	or 	to 	refuse 	to 	participate 	in the 	activities 	of
employee 	organizations.
36

In 	this 	instance 	the 	Charging Party argues 	for 	a 	violation
on 	the 	ground 	that 	the 	board 	assigned 	Leonard 	to 	the 	teaching
position because 	he 	refused 	to 	accede 	to 	the District's 	efforts
to 	mitigate 	union activities 	by 	rank and 	file 	teachers.
Charging 	Party 	asserts 	that 	"discriminatory 	acts 	against
supervisory 	personnel 	based 	upon 	the 	supervisor's 	refusal 	to
commit 	unfair 	labor 	practices 	are 	themselves 	illegal 	precisely
because 	of 	the 	coercive 	effect 	such acts 	have upon employees 	in
the 	exercise 	of 	their 	employment 	rights." 	citing 	Sanchez v.
California Unemployment 	Insurance Appeals Board 	(1984) 	36
Cal.App.3d 	578, 	and Gerry's Cash Markets. 	Inc. 	d/b/a/ Gerry's
IGA 	(1958) 	238 NLRB 1141, 	1151. 	Charging Party asserts 	that
Babiarz's 	unceasing 	anti-union 	comments 	and 	adverse 	actions
against 	Leonard 	and 	his 	teachers, 	combined with 	the 	board's
anti-union 	rationale 	for 	firing Leonard 	have 	a 	natural 	and
obvious 	chilling effect 	on 	the 	teachers. 	On this 	premise.
Charging 	Party 	relies 	on 	Carlsbad 	Unified 	School 	District
(1979) 	PERB Decision No. 	89. 	holding that the transfer of a
union activist would 	have 	the 	natural 	and 	probable 	consequence
of 	causing 	other 	employees 	reasonable 	fear 	that 	similar 	action
would 	be 	taken 	against 	them 	if 	they 	engaged 	in 	organizing
efforts, 	and 	thus 	such transfer would 	be 	in violation of 	the
exercise 	of 	employees' 	right 	of 	self 	organization and unlawful
interference within the meaning of 	section 3543.5(a).
37

Two 	forms 	of 	protected 	activity 	are 	advanced 	by Charging
Party 	in this 	case. 	These are Leonard's 	right 	to 	refuse 	to
interfere with 	teacher's 	choices 	about 	union membership 	and 	the
right 	of 	teachers 	to 	freely choose 	membership 	in a 	union
without 	fear 	of 	reprisal 	from the District. 	Both, 	contend
Charging Party, 	were violated 	in this 	case.
PERB has yet 	to 	address 	the 	rights 	of 	supervisors 	under 	the
EERA where 	the 	employer 	directs 	the 	supervisor 	to 	engage 	in
conduct 	that may 	be unlawful. 	But 	see Regents 	of 	the
University of 	California 	(1984) 	PERB Decision No. 	449-H. 	Under
the National Labor Relations Act 	(NLRA), 	which excludes
supervisors 	from coverage, 	the NLRB and 	the 	courts 	have 	found
unfair 	practices 	where 	the 	employer 	took 	action against 	the
supervisor 	for 	refusing 	to 	commit 	unfair 	labor 	practices 	or 	for
failing 	to 	prevent unionization. 	See generally Morris. 	The
Developing Labor Law. 	2nd edition, 	page 	132. 	This 	is so
because, 	as 	stated 	in Inter-City Advertising Co. 	(1950) 	89 NLRB
No. 	127. 	[26 LRRM 1065]. 	reversed on other grounds 	(CA 4, 	1951)
190 F.2d 420 	[28 LRRM 2321], 	the discharge of 	a 	supervisor 	for
refusing 	to 	aid 	in 	an employer's 	campaign against 	a 	union
unlawfully 	interferes with, 	restrains 	and 	coerces 	the
non-supervisory employees 	involved. 	Thus, 	the NLRB 	principle
38

is 	an amalgamation 	of 	the 	two 	discrete 	rights 	urged 	by Charging
17
Party to 	have 	been present 	in this 	case.
In Carlsbad, 	supra, 	as noted. 	PERB observed 	the chilling
effect 	upon fellow employees 	resulting 	from 	the 	transfer 	of 	a
union activist, 	and 	ruled 	that 	such 	conduct was 	interference
within the meaning of 	section 3543.5(a). 	It 	is appropriate to
apply 	the NLRA protection to 	supervisors, 	within EERA. 	Fire
Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 	608, 	616.
Thus, 	as under 	the NLRA, 	a 	"passive" 	activity protected 	by the
EERA 	is 	the 	supervisor's 	restraint 	from engaging 	in unlawful
conduct 	to 	prevent 	rank and 	file 	employees 	from unionizing. 	If
it 	is 	determined 	that 	the 	board 	took 	action against 	Leonard
because 	he 	refused 	to 	commit unfair 	practices 	against 	employees
or 	refused 	to 	prevent 	employees 	from unionizing, 	then relief
can 	be 	afforded 	under 	EERA.
-
In order 	to 	determine whether 	Leonard was 	demoted 	for
participating 	in 	protected 	activities 	one 	must 	apply 	the 	test
17There 	is 	no 	evidence 	indicating 	how Leonard 	refused 	to
prevent 	unionization or 	committed unfair 	practices. 	There 	is
no 	demand 	from the 	employer 	that 	he 	prevent 	unionization or
commit 	an unfair 	practice 	after 	the 	1981 	settlement 	agreement,
save 	for 	the 	inference 	that 	may be 	drawn 	from Babiarz's 	request
for 	the 	performance 	evaluations 	of 	the 	four 	activists 	following
the 	1982 	election. 	Leonard 	"dragged 	his 	feet" 	on the 	request
and 	only delivered 	the 	evaluations 	along with 	those 	of 	all 	of
the 	teachers, 	as 	requested 	by the 	board 	the 	following year.
Absent 	further 	action by Babiarz 	on 	the 	request 	or 	the
evaluations, 	there 	is 	no 	conclusion that an unfair 	practice had
occurred.
39

of Novato Unified 	School District 	(1982) 	PERB Decision
No. 	210. 	In Novato, 	the Board held 	that a party alleging
discrimination or 	reprisal 	has 	the 	burden of 	making a 	showing
sufficient 	to 	demonstrate 	that 	protected 	conduct was 	a
"motivating 	factor" 	in 	the 	employer's 	decision to 	engage 	in the
conduct 	of 	which 	the 	employee 	complains.18 Unlawful 	motive
is 	the 	specific 	nexus 	required 	in the 	establishment 	of 	a 	prima
facie 	case. 	In recognition of 	the 	fact 	that direct 	evidence 	of
motivation 	is 	seldom available, 	unlawful 	motivation may be
demonstrated 	circumstantially and 	from 	the 	record 	as 	a 	whole.
Carlsbad Unified 	School District, 	supra; 	Republic Aviation
Corp. 	V. NLRB 	(1945) 	324 U.S. 	793 	[16 LRRM 620]. 	If the
charging party 	is 	able, 	by direct 	or 	circumstantial 	evidence,
to 	raise 	the 	inference 	that 	the 	employer was 	motivated 	to 	take
adverse 	personnel 	action 	by 	its 	knowledge 	of 	the 	employee's
protected 	activity, 	the 	burden 	shifts 	to 	the 	employer 	to
demonstrate 	that 	it would 	have 	acted 	as 	it 	did 	regardless 	of
the 	employee's 	participation 	in protected 	activity. 	Novato.
supra; 	Wright Line. 	A Division of Wright Line. 	Inc. 	(1980) 	251
NLRB 1083 	[105 LRRM 1169]; 	NLRB v. 	Transportation Management
Corp. 	(1983) 	U.S. 	[113 LRRM 2857]; Martori Brothers
18In 	order 	to 	prevail, 	the 	charging 	party must 	prove 	the
charge 	by a 	preponderance 	of 	the evidence. 	PERB
regulation 32178.
40

Distributors v. 	Agricultural Labor Relations Board 	(1981) 	29
Cal.3d 721.19 19
To 	justify 	such an 	inference, 	the 	charging 	party must 	prove
that 	the 	employer 	had 	actual 	or 	imputed 	knowledge 	of 	the
employee's 	protected 	activity. 	Novato Unified 	School 	District.
supra; 	Moreland Elementary School 	District 	(1982) 	PERB Decision
No. 	227. 	Such knowledge, 	plus 	other 	factors 	cited by PERB 	in
Novato 	and 	amplified 	in subsequent 	cases, 	may support 	the
inference 	of 	unlawful motive. 	Factors which may support 	an
inference are: 	the 	timing of 	the 	employer's 	conduct 	in
relation 	to 	the 	employee's 	performance 	of 	protected 	activity.
North Sacramento 	School District 	(1982) 	PERB Decision No. 	264;
the 	employer's 	disparate 	treatment 	of 	employees 	engaged 	in 	such
activity, 	San Leandro Unified 	School District 	(1983) 	PERB
Decision No. 	288; 	its departure 	from established 	procedures 	and
standards when dealing with such employee, 	Novato, 	supra;
and/or 	the 	employer's 	inconsistent 	or 	contradictory
justifications 	for 	its actions. 	State of California.
(Department of 	Parks 	and Recreation) 	(1983) 	PERB Decision
No. 	328-S.
Where 	the 	charging 	party 	has 	introduced 	evidence 	that 	may
suggest 	an 	inference 	of 	unlawful 	motivation, 	the 	employer's
1 9 The 	construction of 	similar 	or 	identical 	provisions 	of
the NLRA, 	as amended. 	29 U.S.C. 	151 et seq., 	may be used to
guide 	interpretation of 	the EERA. 	See, 	e.g., 	San Diego
Teachers Assn. 	v. 	Superior Court 	(1979) 	12 Cal.3d 1, 	12-13.
41

case-in-chief 	evidence may rebut 	the 	inference, 	thereby
avoiding 	the 	necessity 	of 	proving 	that 	the 	employer 	would 	have
made 	the 	same 	decision 	in the 	absence 	of 	protected 	activity.
California 	State University. 	Sacramento 	(1982) 	PERB Decision
No. 211-H.
Finally, 	the mere fact 	that 	an employee 	is 	participating 	in
union 	activities 	does 	not 	immunize 	the 	employee 	from 	routine
employment 	decisions. 	Martori Brothers Distributors 	v.
Agricultural Labor Relations Board, 	supra. 	29 Cal.3d 721.
Rather, 	once employee misconduct 	is demonstrated, 	the
employer's 	action.
. 	. 	. 	should not be deemed an unfair 	labor
practice 	unless 	the 	Board 	determines 	that
the 	employee would 	have 	been 	retained 	"but
for" 	his 	union membership or 	his 	performance
of 	other 	protected activities. 	Ibid.
Application of 	the 	foregoing 	principles 	to 	this 	case 	leads
me 	to 	the 	conclusion 	that 	the 	board 	of 	trustees 	were 	not
unlawfully motivated 	in 	removing 	Leonard 	from 	the 	position 	he
held 	at East Cottonwood 	School. 	As will 	be 	seen 	in the
analysis 	that 	follows. 	Charging Party's 	contention of 	an
inference 	of 	unlawful 	motivation 	from evidence 	is 	either
rejected 	or 	is 	negated 	by 	the 	employer's 	rebuttal 	evidence.
Charging Party's 	threshold 	contention 	is 	that 	the 	nexus
required 	in unlawful 	motivation cases 	is 	found 	in Rickert's
statement 	regarding union membership 	of 	teachers 	at 	East
Cottonwood School. 	The District 	argues 	that, 	while 	one
42

interpretation 	of 	the 	statement 	could 	be 	that 	the 	board 	took
action 	against 	Leonard 	because 	the 	teachers 	had 	joined 	the
union at 	East 	Cottonwood 	and 	had 	not 	at West 	Cottonwood. 	a
different 	interpretation could also 	be made. 	That 	is. 	the
teachers 	at 	East 	Cottonwood 	School 	joined 	the 	union 	because
they were 	dissatisfied with Leonard, 	whereas 	few teachers 	had
joined 	at West 	Cottonwood 	because 	teachers 	were 	not
dissatisfied with Principal 	Osborn. 	Rickert 	himself 	testified
that 	he 	meant 	a 	reflection on Leonard's 	leadership 	by 	the
comment. 	As 	he 	stated, 	he was 	trying to 	compare 	the 	two
schools with the 	same 	board, 	same 	superintendent, 	same 	salary
and benefits, 	the same everything; 	yet, 	at one school, 	they had
turmoil 	and 	a 	general 	lack of 	communication. 	At 	the 	other
school 	there were no problems. 	At 	least one teacher, 	Kure.
drew the 	same 	interpretation. 	Rickert's 	statement 	meant 	the
board 	had 	surmised 	that 	teachers 	at 	East 	had 	joined 	because 	of
Leonard's 	job 	related 	deficiencies 	and 	the 	teachers 	at West 	did
not 	feel 	they needed 	to 	join.
While 	the 	statement 	is 	subject 	to 	either 	interpretation, 	I
am 	inclined 	to 	credit Rickert's 	version 	of 	his 	comments.
Overall, 	he was a credible witness, 	and there 	is no reason to
disbelieve 	him on 	this 	point.20 His 	demeanor 	on 	the witness
20Rickert's 	testimony 	on 	the 	source 	of 	information 	about
Leonard's 	time 	spent 	at 	recess 	was 	addressed 	elsewhere 	in 	this
decision. 	His 	explanation of 	his written 	response 	to 	a 	recall
43

stand 	leads 	me 	to 	believe 	he 	harbored 	no 	unlawful 	motive when
he made 	the statement 	in question. 	Moreover. 	I 	conclude that
it 	is 	highly unlikely that Rickert. 	who 	is 	chairman of 	the
board, 	would make 	such a 	statement 	in a 	public 	forum if. 	in
fact, 	unlawful motive was 	present. 	While 	the words were
obviously not well-chosen. 	I 	cannot 	attribute 	an unlawful
motive 	to Rickert 	based 	upon 	this 	evidence.
Despite 	this 	conclusion, 	the 	fact 	remains 	that at a 	board
meeting 	to 	review the demotion of 	the East 	Cottonwood 	School
principal, 	the 	board 	chairman did 	comment 	on the 	teachers 	at
that 	school 	joining the union. 	Under 	these 	circumstances, 	a
continued 	analysis 	of 	the Novato 	principle 	is 	appropriate.
The 	balance 	of 	Charging Party's 	arguments 	in support 	of 	an
inference 	of 	unlawful 	motivation 	focuses 	on 	contentions 	of
inconsistent 	or 	contradictory 	justifications 	for 	the 	board's
action. 	The 	evidence 	simply fails 	to 	support 	these 	contentions
While 	the 	reasons 	for 	the 	board's 	actions 	could 	have 	been
more 	fully explained, 	they were not 	inconsistent 	or
contradictory. 	Similarly, 	other 	criteria 	such as 	timing,
disparate 	treatment, 	or 	departure 	from established 	procedures
petition undertaken after 	Leonard's 	removal 	was 	vague 	and
showed 	ignorance 	of 	the 	particulars 	of 	federal 	programs. 	In
light of 	the political 	nature of 	recall 	petition. 	I 	do not
conclude 	that 	Rickert was 	otherwise 	an unbelievable witness
because 	of 	the generalizations 	he 	set 	forth 	in his written
response 	to 	the 	petition.
44

and 	standards, 	are not 	substantiated 	by Charging Party, 	nor 	is
there evidence 	to 	apply such criteria. 	For 	example, 	if 	the
PERB-conducted 	election 	in 	spring 	1982 	was 	the 	instigating
factor, 	then CTA membership 	in 	1981-82 was 	remote 	from the
board's 	action 	in 	1984. 	Leonard 	testified 	that 	in 	1982 Babiarz
told 	him 	the 	board was 	unhappy with 	teachers 	joining CTA. 	That
was 	the 	supposed 	reason for 	Leonard 	receiving 	a 	raise 	of 	only
$500. 	Yet 	the 	board 	did 	not 	take 	action 	to 	reassign Leonard
until 	1984. 	two years 	later. 	In the 	interim the 	board 	gave
Leonard, 	in 1983, 	a $1,000 raise. 	If union membership at East
Cottonwood 	School was 	irking 	the 	board 	in 	1982, 	what 	changed 	in
1983 	to 	prompt 	them to 	provide 	a 	$1,000 	raise 	in 	1983?
Charging Party devotes 	much attention 	to 	the 	evidence 	of
Babiarz's 	anti-union attitude 	in 	support 	of 	an 	inference 	that
the 	board 	of 	trustee's 	harbored 	unlawful 	motivation 	in
reassigning 	Leonard. 	The 	evidence 	does 	support 	a 	finding 	that
Babiarz 	harbored 	strong 	feelings 	about unionism. 	For 	the
following reasons, 	the 	evidence 	in this 	case does 	not 	justify a
conclusion 	that 	the 	board's 	decision was 	tainted 	by Barbiarz's
anti-union 	sentiments.
Charging Party argues 	that 	the 	employer 	is 	tainted 	by 	the
anti-union statements 	or 	acts 	of 	the 	supervisors whether 	or 	not
the 	acts 	are 	specifically authorized, 	citing Babbitt
Engineering 	and Machinery v. 	Agricultural 	Labor 	Relations 	Board
(1984) 	152 Cal.App.3d 	310; 	National Labor Relations Board v.
45

LaSalle Steel Co. 	(7th Cir. 	1949) 	178 F.2d 829. 	cert, 	denied
339 U.S. 	963; 	Vista Verde Farms v. 	Agricultural Labor Relations
Board 	(1981) 	29 Cal.3d 	307.
PERB 	has 	adopted 	"historically 	accepted 	labor 	relations
principles 	of 	agency authority 	and 	principal 	liability" 	in
cases 	arising under 	EERA. 	Antelope Valley Community College
District 	(1979) 	PERB Decision No. 	97. 	There, 	PERB acknowledged
that, 	under 	both NLRB and California 	common 	law. 	the
principal's 	liability will 	attach 	under 	apparent 	authority
where 	reasonable 	reliance was 	made 	by 	third 	persons 	or
employees 	upon 	the authority of 	the 	agent, 	based upon conduct
of 	the principal. 	Thus. 	here, 	the District board of 	trustees
would 	be 	liable 	for 	Babiarz's 	conduct 	if 	it were 	reasonable 	for
third 	persons 	to 	believe 	he was 	conducting himself 	with 	the
authority of 	the 	board. 	But 	reliance 	on such principles 	in
this 	case 	is misplaced.
In Konocti Unified 	School District 	(1982) 	PERB Decision
No. 	217. 	the PERB found that, 	even assuming a 	superintendent
harbored 	anti-union 	animus, 	such would 	not 	be 	automatically
imputed 	to 	the 	board 	of 	trustees, 	the 	body which took 	the
ultimate 	action. 	The Board 	distinguished 	Antelope Valley,
which had 	been 	relied upon 	by 	the 	hearing 	officer, 	since 	in
Konocti, 	there had 	been no approval 	of 	the managers who were
responsible for 	the conduct 	in question. 	Here, 	there 	is no
evidence 	that 	the 	board 	approved Babiarz's 	conduct 	in 	1981. 	nor
46

was 	it 	aware 	of 	the 	continued 	conduct 	of 	Babiarz 	after 	the
settlement 	agreement 	was 	executed.
In the 	first place, 	aside 	from the 	1981 	conduct 	of Babiarz.
which was 	arguably an unfair 	practice. 	Babiarz's 	conduct 	in
asking Leonard 	to 	post 	articles 	against 	unions 	following 	the
settlement 	of 	that 	case was 	not 	necessarily unlawful. 	In Rio
Hondo Community College District 	(1980) 	PERB Decision No. 	128.
the Board 	held:
. . . 	an 	employer's 	speech which 	contains 	a
threat 	of 	reprisal 	or 	force or 	promise of
benefit will 	be perceived 	as 	a means 	of
violating the Act and will, 	therefore, 	lose
its 	protection 	and 	constitute 	strong
evidence 	of 	conduct which 	is 	prohibited 	by
section 3543.5 	of 	the EERA.
As 	noted 	by the District, 	PERB held, 	in Los Angeles Unified
School District 	(1985) 	PERB Decision No. 	514:
. 	. 	. 	an employer may harbor adverse
feelings 	toward 	an 	employee 	organization 	so
long 	as 	it 	refrains 	from taking 	action
against 	any 	employee 	because 	of 	the 	exercise
of 	rights 	guaranteed 	by 	the Educational
Employment Relations Act 	(EERA).
Here 	the 	articles 	posted 	by 	Leonard 	at 	Babiarz 1 request
constitute 	no 	threats of 	reprisal 	or 	promise of 	benefit, 	but
were 	addressed 	to 	unionism generally. 	Leonard 	testified 	that
Babiarz 	talked 	to 	him about 	the 	dangers 	of 	unionism and 	his
anger 	at 	teachers 	joining CTA, 	but 	there 	is 	no 	evidence 	that
Babiarz 	made 	any contact with 	teachers 	who 	did 	join CTA. 	There
is 	no 	evidence 	of 	any action against 	teachers 	taken by Babiarz
after 	the 	1981 	settlement 	agreement.
47

More to 	the point, 	however, 	is 	the absence of 	any evidence
connecting 	the 	board's 	decision 	to Babiarz's 	views 	on
unionism. 	By Leonard's 	own testimony, 	his 	only 	inklings 	of 	the
board's 	view on 	the 	subject 	of 	unions 	were Babiarz's 	statement
to 	him 	that 	the 	board was 	unhappy that 	the 	teachers 	had 	joined
CTA, 	and 	the 	related 	statement 	of Rickert 	at 	the 	board meeting
on December 	19. 	1984. 	While 	the discussion of 	unionism came up
when 	board 	members were 	present, 	there was 	no 	evidence
presented 	to 	show 	that 	the 	board 	was 	influenced 	by Babiarz's
anti-union attitude. 	In fact, 	credible witnesses 	testified
that 	there was 	no mention of 	CTA membership; 	instead 	the
discussion 	focused 	on 	the work-related 	shortcomings 	of
Leonard. 	As 	to 	the 	pay raise 	situation, 	Leonard 	did 	nothing 	to
seek 	or 	clarify 	the 	basis 	for 	the 	board's 	action. 	He did 	not
inquire 	of 	the 	board 	or 	any member 	as 	to 	the 	basis 	in fact 	for
granting the 	pay raise 	of 	only $500. 	The 	board's 	position, 	as
explained 	by Petersen. 	was 	that 	the 	1981-82 	problems 	at 	the
East 	Cottonwood 	School 	indicated 	performance 	problems 	and 	that
Leonard 	did 	not 	merit 	a 	higher 	raise.
Lastly, 	the 	1983 	raise of 	$1,000 severely undercuts
Leonard's 	testimony 	that 	Babiarz 	said 	the 	board 	awarded 	only 	a
$500 	raise 	in 	1982 	because 	of 	increased 	CTA membership.
Further, 	Leonard's 	failure 	to 	bring 	this 	matter 	to 	the 	board's
attention at 	the 	time 	leaves 	doubt 	that 	he was 	convinced 	of 	the
rationale 	offered 	by Babiarz 	for 	the 	lesser 	raise. 	In any
48

event, 	Leonard 	could 	not 	describe 	any 	board 	sentiment 	to
corroborate 	such a 	basis 	for 	the 	difference 	from prior 	raises.
Charging Party 	cites 	the 	board's 	failure 	to 	investigate 	his
charges 	against Babiarz 	in 	the 	spring 	of 	1984 	relating 	to 	the
latter's 	anti-union 	attitude 	and 	continued 	pressure 	on 	Leonard
about 	teachers 	joining CTA. 	Yet, 	it 	is 	clear 	that Leonard did
not 	go 	to 	the 	board 	to 	complain about Babiarz's 	conduct;
rather, 	when 	the 	board 	advised 	Leonard 	of 	their 	determination
to 	relieve him as 	principal 	at East, 	his 	response was 	to attack
Babiarz. 	In the absence of 	evidence 	to 	connect Barbiarz's
anti-union sentiment 	to 	the 	board's 	decision, 	it 	cannot 	be
concluded 	that Babiarz was 	the 	issue. 	Leonard's 	performance 	as
principal was 	the 	issue. 	As 	the 	board 	saw it, 	Leonard was 	not
facing 	the 	issue.
Charging Party 	takes 	umbrage 	at 	the 	board's 	failure 	to
investigate 	Babiarz's 	conduct 	following 	Leonard's 	complaints
about Babiarz's 	relationship with Leonard. 	Yet 	the 	1981 matter
did 	not 	address 	that 	relationship, 	but 	rather 	the
administration's 	pressure 	on 	the 	teachers 	to 	defer 	joining
CTA. 	As Petersen testified, 	the dynamics 	of 	the 	relationship
between Babiarz 	and 	Leonard was 	not 	addressed 	in 	the 	1981
charge. 	In addition, 	Leonard 	testified 	that 	it was 	not until
the 	spring of 	1984 	that 	he went 	into 	detail 	about 	the 	September
1981 meeting with the 	teachers. 	He 	complained 	of 	no 	post-1981
conduct 	by Babiarz. 	The 	1981 matter 	had 	been resolved. 	Absent
49

testimony 	by Leonard 	that 	he 	complained 	about 	post-1981 	conduct
by Babiarz. 	the 	board 	cannot 	be 	faulted 	for 	failing 	to
investigate 	such 	conduct.
It must also 	be noted 	that, 	at 	the 	time, 	the board was
aware 	of Babiarz's 	pending retirement. 	It 	is 	clear 	that his
39-year 	tenure with 	the District 	weighed 	heavily 	on 	the
circumstances. 	Babiarz was 	going to 	retire, 	and 	the 	board 	knew
that 	fact. 	No 	useful 	purpose would 	have 	been 	served 	by
directing 	an 	inquiry 	into 	his 	job 	performance.
The November 	21 Evaluation
Charging Party argues 	that 	the November 	21, 	1984
performance 	evaluation 	is 	unsubstantiated. 	He 	characterizes
the 	evaluation as 	raising 	two 	"incidents" 	which are 	not
supported 	by the 	evidence. 	The 	first 	"incident," 	argues
Charging Party, 	that 	of 	too much time 	spent with children, 	was
suspect 	because 	none 	of 	the 	teachers who 	testified 	on 	behalf 	of
the District mentioned 	this 	as 	a 	problem. 	Babiarz 	spent very
little 	time 	at East Cottonwood 	School, 	thus 	could 	not 	be 	aware
of 	Leonard's 	activity. 	Finally, 	only one 	board member,
Rickert, 	responded 	to 	this 	point. 	Rickert 	testified 	that 	the
comment was 	based 	upon 	remarks 	of 	members 	of 	the 	community whom
he 	could 	not 	identify. 	For 	these 	reasons 	Charging Party
concludes 	the 	criticism 	is 	unfounded.
The 	second 	unsubstantiated 	"incident" 	Charging 	Party 	finds
in 	the 	evaluation 	is 	the 	criticism that 	Leonard 	failed 	to
50

render 	firm decisions 	involving 	possibly 	controversial 	matters,
such as 	the 	implementation of 	SB 	813. 	Charging Party finds
this 	criticism suspect 	because, 	as 	Leonard 	testified, 	he 	and
the 	teachers 	did 	take 	a 	stand 	and 	developed 	a 	proposal 	that was
ultimately adopted 	by 	the 	board.
Neither 	argument 	is 	persuasive. 	The 	teachers were 	not
asked 	about 	Leonard's 	time 	spent with 	children, 	and 	that 	they
did 	not 	mention 	it 	as 	a 	problem does 	not mean that 	the 	board
did 	not view it 	as 	a 	problem. 	Neither 	Powers 	nor 	Petersen were
asked 	about 	the 	issue. 	Rickert's 	source 	of 	information on the
issue was 	members 	of 	the 	community and 	is 	hearsay. 	Rickert's
inability 	to 	name members 	of 	the 	community who 	complained 	about
Leonards 	time 	spent 	on 	recess 	might 	cast 	some 	doubt 	on 	the
District's 	position; 	however. 	I 	am not 	inclined 	to draw that
observation. 	Rickert did 	testify that 	he 	did 	ask Leonard, 	at
board meetings, 	what Leonard 	did with his 	time 	over 	at East
Cottonwood 	School. 	Rickert 	said 	he 	never 	got 	an answer 	from
Leonard. 	Leonard 	did 	not 	testify, 	on 	rebuttal, 	about questions
from Rickert 	regarding 	his 	time 	at 	East 	Cottonwood.
As 	to 	the 	SB 	813 	issue. 	Leonard 	correctly asserts 	that 	the
board did 	adopt 	his 	proposal. 	From the 	board's 	perspective,
however. 	Leonard 	gave 	them various 	signals 	as 	to 	the 	possible
solution to 	the 	issue over 	the 	three months 	it 	took him to
reach consensus with his 	teachers. 	That 	process, 	not 	his
solution, 	they found 	exasperating. 	That 	the 	board 	adopted 	his
51

proposed 	solution does 	not 	refute 	the 	board's 	concern, 	as
testified 	by Peterson, 	that 	getting 	to 	the solution was 	a
frustrating 	process 	for 	the 	board.
Moreover. 	Charging Party's 	myopic 	rendition of 	the
evaluation 	(only two 	"incidents") 	is undermined 	by 	the 	overall
text 	of 	the 	evaluation. 	First 	it must 	be 	emphasized 	that
concern 	about 	Leonard's 	performance was 	not 	new. 	The 	board 	had
been meeting with 	its 	administrators 	over 	the years 	since 	1983
to 	review Leonard's 	role as 	principal. 	Specifically, 	the 	board
articulated 	its 	concern 	regarding 	Leonard's 	inability 	to 	lead
and 	evaluate 	and motivate 	the 	staff. 	The 	board 	saw his
authority as 	principal 	eroding. 	The 	board 	contended 	in 	the
evaluation 	that 	it 	had 	had 	a 	number 	of 	closed 	sessions 	with
Leonard 	over 	the 	past 	two years. 	Some were 	follow-up meetings
as 	a 	result of 	the 	1981 	concerns 	of 	the 	teachers 	at East
Cottonwood. 	Leonard did 	not. 	at 	the 	time 	the 	evaluation was
given to 	him or 	at 	hearing, 	challenge 	the 	statement. 	The 	board
saw no 	improvement 	in his 	total 	ability to 	serve as
administrator 	of 	the 	school. 	Against 	this 	background 	Leonard
always 	gave 	the 	same 	impression to 	the 	board, 	that 	there were
no 	problems 	and 	that 	everything was 	satisfactory. 	Thus, 	the
board 	had 	reason to 	be 	concerned. 	Petersen, 	an extremely
credible witness, 	testified as 	to 	these observations 	of 	the
board. 	Again, 	Leonard did 	not dispute 	the assertions 	at 	the
time 	he 	received 	the 	evaluation.
52

The 	evaluation was 	written 	by Babiarz 	who 	evidenced
anti-union animus. 	Yet Babiarz wrote 	the 	evaluation at 	the
direction of 	the 	board; 	the content was 	not his, 	it was 	the
board's. 	They told him what 	to 	place 	in the evaluation. 	In
addition, 	the evaluation was 	prepared 	by Babiarz well 	after 	the
board 	had 	notified 	Leonard 	of 	their 	decision 	to 	remove 	him as
principal 	at East 	Cottonwood. 	While 	the 	evaluation may 	lack
the 	specificity to 	satisfy Leonard, 	it does 	capture 	the 	essence
of 	the 	board's 	apparent 	basis 	for 	action. 	As 	a 	result 	of 	the
1981 	teachers 	concerns, 	the discussion Petersen and 	Seale had
with the 	teachers, 	and 	the 	subsequent 	communications 	from the
teachers, 	the 	board 	simply 	looked 	at 	Leonard's 	performance 	as
principal more 	closely. 	As 	issues 	arose, 	for which the 	board
expected 	the 	principals 	to 	have viewpoints 	or 	recommendations,
they found Leonard 	not 	responsive. 	These 	issues 	dealt with
conditions 	of 	the 	facility at East 	Cottonwood. 	such as 	the 	play
yard, 	blacktop, 	fencing, 	grassy area, 	carpet, 	sinks and
drapes. 	Other 	issues 	that 	surfaced were 	the mentor 	teacher
program and 	the 	physical 	education 	teacher. 	While 	the 	board
had ultimate authority on these matters, 	they expected, 	not
without 	reason, 	to 	have 	the 	principal 	take a 	stand 	on such
issues. 	Leonard 	did 	not 	react 	to 	these 	issues 	as 	the 	board
thought 	a 	principal 	should. 	This 	scrutiny of 	his 	performance,
along with 	the 	continued 	presence 	at 	board 	meetings 	of 	teachers
from East 	Cottonwood with 	concerns 	about 	unresolved 	matters 	at
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the 	school, 	culminated 	in the 	board's 	determination 	that 	they
no 	longer 	had 	confidence 	in Leonard's 	performance 	as 	principal.
This 	is 	not 	to 	say 	that 	I 	find 	the 	board had 	just 	reason 	to
reassign Leonard. 	It 	is 	not 	this 	agency's 	role 	to determine
the propriety of 	trustees' 	action, 	but 	to ascertain whether
unlawful 	motivation was 	behind 	the 	action. 	In Berry Schools 	v.
NLRB 	(5th Cir. 	1981) 	653 F.2d 	966 	108 	LRRM 2011. 	it was 	said;
The 	decision of 	the 	department 	chairman 	and
the 	associate 	dean 	to 	evaluate 	Carper 	as
below average 	may not 	have 	been 	a 	good 	or
reasonable one, 	but so 	long as 	it was 	not 	in
retaliation 	for 	protected 	activity 	the 	Board
had 	no 	jurisdiction 	to 	question 	it.
See 	also 	Cerritos 	Community College District 	(1980) 	PERB
Decision No. 	141.
Charging Party discounts 	the 	testimony of 	the 	teachers 	on
behalf 	of 	the District, 	charging evidence of 	a 	strong bias 	in
that 	they were 	paid 	by 	the District 	for 	their 	work 	on 	the 	case
and 	for 	their 	testimony. 	Further, 	Charging Party asserts 	their
testimony 	related 	to 	stale 	facts 	and 	isolated 	and 	petty
grievances. 	Paying overtime 	to 	teachers 	is 	unprecedented.
However, 	I 	found 	the 	teachers' 	testimony persuasive or 	relevant
only 	to 	the 	extent 	that 	they 	testified 	in corroboration of 	the
documentary 	evidence 	submitted 	in 	conjunction with 	the
memoranda 	sent 	to 	the board 	in 1981.
Charging Party 	cites 	Rickert's 	denial 	of 	Leonard's 	request
to 	put 	the 	reasons 	for 	his 	demotion 	into 	the 	board minutes 	for
the December 	meeting. 	While 	it 	is 	true 	that Rickert 	could 	not
54

recall 	ever 	denying 	a 	request 	for 	matters 	to 	be 	placed 	into 	the
minutes, 	it 	is 	also 	true 	that 	the 	type 	of 	request 	presented 	to
him by Leonard was 	unprecedented. 	The District 	had 	never 	had 	a
request 	of 	this 	sort 	before 	and Rickert was 	uncertain of 	what
he 	should 	do. 	Rickert 	said 	that 	he 	acted under 	advice 	of
counsel. 	Given the unprecedented 	nature 	of 	the 	proceedings 	and
the understandable uncertainty. 	I 	find no unlawful motive 	in
these 	limited 	facts.
The 	Charging Party 	finds 	inconsistent 	the 	testimony 	of
Powers, 	Rickert 	and Petersen 	regarding 	the 	involvement 	of
Babiarz 	in Leonard's demotion. 	All 	three were, 	however,
consistent 	on 	the 	crucial 	matter 	that 	the 	decision 	to 	relieve
Leonard was made 	by the 	board. 	It 	is 	clear, 	given the
relationship 	between 	the 	board, 	the 	superintendent 	and 	Leonard,
that 	the 	board 	did 	discuss 	Leonard's 	performance with Babiarz.
Petersen's 	testimony 	that 	the 	board 	discussed 	Leonard's
performance with Babiarz 	is 	not 	inconsistent with his 	later
testimony 	that Babiarz 	was 	not 	involved 	in 	the 	decision 	to
demote 	Leonard. 	Getting 	feedback 	from Babiarz 	does 	not
automatically 	thrust 	him 	into 	the 	decision-making 	process.
Reading Powers' 	testimony. 	I 	do not conclude that Powers 	said
that Babiarz 	recommended Leonard's 	demotion. 	Rickert 	noted
that 	Babiarz 	only 	provided 	evaluations 	(he was 	not 	asked 	if 	he
meant 	that 	the November 	21 	evaluation was 	provided 	by Babiarz),
but was 	firm that 	Babiarz 	made 	no 	recommendation 	regarding
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Leonard. 	Based 	on 	this 	evidence, 	I 	am unable 	to 	conclude 	that
the 	testimony 	of 	these 	three District 	officials 	is 	inconsistent
or 	that 	Babiarz 	unlawfully 	tainted 	the 	decision 	to 	demote
Leonard.
Charging Party 	infers 	anti-union 	animus 	by 	the 	board's
perceived 	"hostility" 	to 	organized 	input 	from teachers, 	citing
Dana 	Byers' 	testimony 	regarding 	a 	board 	member's 	statement 	that
teachers 	should 	not 	have 	anything 	to 	say about 	the workday
schedule. 	Since Byers 	could 	not 	identify the 	board member, 	no
unlawful 	motive 	can 	be 	inferred 	from 	such 	limited 	evidence.
Nor 	does 	the 	testimony of 	member 	Powers 	evidence
hostility. 	Charging Party 	reads 	such a 	conclusion 	in his
testimony 	that 	the 	presence 	of 	many 	teachers 	from 	the East
School 	at 	board 	meetings 	indicated 	to 	him 	that 	teachers 	there
were 	not 	getting 	results 	from 	the 	site 	administrator. 	By
coming 	to 	the 	board, 	the 	teachers 	indicated 	a 	lack of 	respect
for Leonard. 	The questions 	presented 	by the 	teachers 	to 	the
board 	or 	to 	the 	superintendent 	at 	these meetings 	indicated 	to
him 	that 	they were 	not 	satisfied with 	the 	site
administrator.21 The 	Charging 	Party 	has 	confused 	legitimate
board 	dissatisfaction with 	hostility.
21charging Party 	argues 	that 	Powers 	testimony 	that
teachers 	should 	go 	through 	the 	chain 	of 	command 	(through 	the
principal, 	the superintendent and 	the board) 	is 	contradicted by
teacher 	Nikki 	Sass's 	testimony 	that 	Leonard 	told 	the 	teachers
they 	should 	go 	to 	him first, 	then to 	the 	superintendent 	and
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Thus, 	under 	the Novato analysis 	outlined above, 	and as
applied 	to 	the 	present 	case. 	I 	conclude 	there 	is 	insufficient
evidence 	to 	infer 	unlawful 	motivation. 	No 	small 	part 	of 	this
disinclination 	is 	based 	upon 	the 	failure 	of 	Charging Party 	to
establish that Babiarz's 	anti-union conduct, 	in 1980 and 	1981.
was 	approved 	by the 	board 	of 	trustees. 	In addition, 	nothing
that Babiarz 	did 	following 	the 	settlement 	agreement 	of 	1981
appears 	to have violated 	the EERA and. 	thus, 	even if 	the board
was 	aware of 	such conduct, 	no violation would 	be 	found. 	As
noted, 	even assuming Babiarz 	harbored unlawful motives, 	there
is 	simply no 	evidence 	to 	tie 	the 	board 	to 	condoning 	any of
Babiarz's acts at any time. 	In the final 	analysis, 	the board
determined 	to 	relieve Leonard 	as 	principal 	for 	reasons
unrelated 	to 	his 	posture 	on 	teachers 	joining 	the union or 	union
activity. 	Whether 	the 	board's 	decision was 	right, 	or 	based
upon 	justifiable 	reasons, 	is 	not 	for 	this 	agency to determine.
As 	was 	stated 	in Moreland Elementary 	School 	District 	(1982)
PERB Decision No. 	227,
[L]ack of 	'just cause' 	is 	nevertheless 	not
synonymous with anti-union animus. 	By
itself, 	it does 	not permit such a finding.
Disciplinary action may 	be without 	just
cause where 	it 	is 	based on any of 	a host 	of
then to 	the 	board. 	Facially, 	there 	is no contradiction.
Moreover, 	Powers' 	point 	is that the teachers' 	coming to the
board 	outside 	of 	the 	chain of 	command was 	the 	indicia 	of 	the
problem, 	that Leonard was 	not 	being 	responsive.
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improper 	or 	unlawful 	considerations which
bear 	no 	relation 	to 	matters 	contemplated 	by
EERA and which 	this 	Board 	it 	therefore
without 	power 	to 	remedy.
In the present 	case, 	no unlawful motivation 	is 	inferred 	from
the evidence; 	thus 	no violation is 	found. 	Accordingly, 	the
unfair 	practice 	charge 	and 	complaint 	must 	be 	dismissed.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law and 	the 	entire record 	in this 	proceeding, 	it 	is 	hereby
ordered 	that 	the 	unfair 	practice 	charge 	and 	the 	PERB 	complaint
filed 	against 	the 	Cottonwood Union 	School 	District 	is 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become final 	on May 27, 	1986, 	unless 	a party files 	a
timely statement 	of 	exceptions. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by
page 	citation or 	exhibit 	number 	the portions 	of 	the 	record, 	if
any, 	relied upon for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part III, 	section 32300. 	Such
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	actually
received 	by 	the 	Public 	Employment 	Relations 	Board 	itself 	at 	the
headquarters 	office 	in Sacramento 	before 	the 	close 	of 	business
(5:00 p.m.) 	on May 27, 	1986, 	or sent by telegraph or
certified United 	States 	mail, 	postmarked 	not 	later 	than 	the
last 	day for 	filing 	in order 	to 	be 	timely filed. 	See
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California Administrative Code, 	title 8. 	part 	III,
section 	32135. 	Any 	statement 	of 	exceptions 	and 	supporting
brief 	must 	be 	served 	concurrently with 	its 	filing 	upon 	each
party 	to 	this 	proceeding. 	Proof 	of 	service 	shall 	be 	filed with
the Board 	itself. 	See California Administrative Code, 	title 	8,
part 	III. 	section 32300 and 	32305.
Dated: 	May 6, 	1986 Gary 	M. 	Gallery
Administrative 	Law Judge
59