Sanger Unified School District (PERB 0811E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SANGER UNIFIED 	SCHOOL DISTRICT,
Charging 	Party,
v.
SANGER 	UNIFIED 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Respondent.
)
) 	Case No . 	S-CO-209
PERB Decision No. 	811
June 4, 	1990
)
)
)
Appearances: 	Stroup & de Goede by Robert W. 	Stroup, 	Attorney,
for Sanger Unified School 	District; 	California 	Teachers
Association by Diane Ross, 	Attorney, 	for Sanger Unified Teachers
Association, CTA/NEA.
Before Craib, 	Shank and Camilli, 	Members.
DECISION AND 	ORDER
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	Sanger Unified School
District 	(District), 	of a Board agent's dismissal 	(attached
hereto) 	of 	its 	charge 	filed against 	the 	Sanger Unified Teachers
Association, 	CTA/NEA 	(SUTA or Association). 	In its 	second
amended charge, 	the District alleged that SUTA engaged 	in bad
faith bargaining when it: 	(1) 	walked out of a mediation session;
(2) 	involved students in the negotiation process; 	(3) 	threatened
to 	strike during the 	next 	school year 	if 	an agreement was 	not
reached; 	and 	(4) 	intentionally misrepresented proposals 	to 	its
membership to assure rejection of 	such proposals. 	This 	conduct
was 	alleged to violate 	section 	3543.6(c) 	of the Educational
)
)
)
)
)
______________ )

Employment Relations Act 	(EERA).1 The Board agent dismissed the
charge 	for 	failure 	to 	state a prima 	facie violation.
We have reviewed the dismissal and, 	finding 	it to be 	free of
prejudicial 	error, 	adopt 	it as 	the decision of the Board itself.2
We 	further address 	the 	District's 	argument 	on appeal 	that 	the
Board 	agent 	failed 	to 	consider whether 	SUTA's 	alleged 	intentional
misrepresentation of proposals 	to 	its 	membership 	constitutes 	a
prima facie violation of 	section 3543.6(c).
DISCUSSION
The 	District argues 	that 	SUTA engaged 	in bad 	faith
bargaining when 	it violated 	an agreement made 	during mediation 	to
present 	the mediator/District's 	proposals 	to 	its 	members 	in a
"neutral 	manner." 	The 	District asserts 	the 	SUTA bargaining 	team
intentionally 	misrepresented 	the 	District's 	proposals 	to 	assure
rejection at 	a membership vote. 	Relying on California 	State
Employees' 	Association 	(O'Connell) 	(1986) 	PERB Decision
EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.6(c) 	states:
It 	shall be unlawful 	for an 	employee
organization to:
(c) 	Refuse or fail to meet and negotiate in
good 	faith with 	a public 	school 	employer of
any of 	the 	employees 	of which it 	is 	the
exclusive 	representative.
2We do not adopt, 	however, 	that portion of the Board agent's
dismissal 	letter 	that 	addresses 	the Association's 	alleged
misrepresentation of 	the 	District's 	bargaining proposal.
N
	2

No. 	596-H, 	the District argues 	that a prima 	facie violation of
bad 	faith bargaining 	is 	shown when the 	employer alleges 	that 	the
union 	knowingly 	misrepresented 	the 	employer's 	position 	to 	secure
a 	rejection of 	a 	contract.3	w 	The District 	claims 	extension of
this 	rule 	is 	necessary because direct 	communications 	by the
District with 	its 	employees, 	for the purpose of 	accurately
clarifying 	its proposals, 	would constitute an unlawful bypass 	of
the exclusive representative, 	i.e., 	SUTA. 	As a result, 	SUTA is
placed 	in the 	"all-powerful" 	position of being able to
misrepresent 	and distort proposals 	to 	assure 	their 	rejection.
The 	District's 	argument 	is without merit. 	Integral 	to the
Board's analysis 	in California 	State Employees' 	Association.
supra. 	was 	the 	exclusive representative's duty of 	fair
representation owed to unit members. 	The 	exclusive
representative owes 	no analogous duty to the employer. 	Thus, 	an
extension of 	the rule 	established 	in California 	State 	Employees'
Association, 	supra, 	is not appropriate.
Additionally, 	in Rio 	Hondo Community College 	District 	(1980)
PERB Decision No. 	128, 	the Board specifically recognized that 	"a
public 	school 	employer 	is 	entitled to 	express 	its 	views 	on
employment 	related matters 	over which 	it 	has 	legitimate 	concerns
33 In California State Employees' 	Association, 	supra. 	the
Board held that 	a prima 	facie violation of 	a breach of 	an
exclusive 	representative's 	duty 	of 	fair 	representation had 	been
shown where 	the 	employee 	alleged the 	union knowingly
misrepresented 	facts 	in order 	to 	secure 	from 	its 	constituents
their ratification of 	a 	contract. 	Accordingly 	in this 	appeal 	the
Board 	is 	requested 	to 	extend this 	rule 	to 	communications 	by 	the
exclusive 	representative 	designed 	to defeat 	ratification of 	the
contract.
33

in order to 	facilitate 	full 	and knowledgeable debate." 	The Board
also 	established the 	following test to determine 	if 	such
communications 	violate 	EERA:
The 	Board 	finds 	that 	an employer's 	speech
which 	contains 	a 	threat 	of 	reprisal 	or 	force
or promise of 	benefit will 	be perceived as 	a
means 	of violating the Act 	and will,
therefore, 	lose 	its protection and constitute
strong evidence of 	conduct which 	is
prohibited by 	section 	3543.5 	of 	the EERA.
(Id. 	at p. 	20.) 	(Emphasis added.)
-
In 	formulating this 	test, 	Board examined 	section 8(c) 	of the
National Labor Relations Act 	(NLRA) 	which provides:
The expressing of any view, 	argument, 	or
opinion, 	or the dissemination thereof,
whether in written, printed, 	graphic, 	or
visual 	form, 	shall 	not constitute or be
evidence 	of 	an unfair 	labor practice 	under
any of the provisions of this Act, 	if 	such
expression contains 	no 	threat 	of 	reprisal 	or
force of promise of benefit.
The 	Board 	further 	noted 	that while 	EERA contains 	no
provision parallel to section 8(c), 	a 	similar standard was
nevertheless 	appropriate.4 Moreover, 	we note that the above NLRA
4While PERB 	is 	not bound by decisions 	of 	the National 	Labor
Relations 	Board, 	the 	Board will 	take 	cognizance 	of 	them where
appropriate. 	(Carlsbad Unified School 	District 	(1979) 	PERB
Decision No. 	89; 	Los Angeles Unified School District 	(1976) 	EERB
Decision No. 	5.) 	(Prior to January 	1, 	1978, 	PERB was known as the
Educational 	Employment 	Relations 	Board.)
Although 	language 	similar to 	section 8(c) 	of the NLRA is
absent 	from EERA, 	virtually identical 	language 	appears 	in 	section
3 571.3 	of 	the 	Higher Education Employer-Employee 	Relations Act
which provides:
The expression of any views, 	arguments, 	or
opinions, 	or the dissemination thereof,
whether in written, 	printed, 	graphic, 	or
visual form, 	shall not constitute, 	or be
evidence of, 	an unfair labor practice under
4

standard, applies 	equally to employee organizations.
(International 	Brotherhood of 	Electrical 	Workers 	v. 	NLRB 	(1951)
341 U.S. 	694, 	704 	[28 LRRM 2115]; 	Boaz Spinning Company v. 	NLRB
(6th Cir. 	1971) 	439 F.2d 876, 	878 	[76 LRRM 2956] 	citing The
Bendix Corp v. 	NLRB 	(6th Cir. 	1968) 	400 F.2d 	141, 	146 	[69 LRRM
2157]; 	see 	also Morris, 	The Developing Labor Law 	(2d Ed. 	1983),
p. 	42.)
Accordingly, 	we hold that 	the 	test 	established 	in Rio 	Hondo,
supra. 	is 	applicable 	in unfair practice cases 	to 	statements 	made
by 	employee 	organizations. 	Since 	no 	facts 	have been alleged 	that
SUTA's 	misrepresentations 	constituted a 	"threat of 	reprisal,
force or promise of benefit," 	the District has 	failed to 	state 	a
prima facie case of violation of 	section 3543.6(c).
- -.
The District's 	concern, 	that 	communication directly with
employees 	"to 	explain the truth about proposals," 	would
constitute an unlawful bypass 	of the 	exclusive representative, 	is
unwarranted. 	We note that 	no 	law or regulation prohibits 	such
communications, 	as 	long as 	the proposals 	are first presented to
the 	exclusive 	representative 	and 	the 	District 	is 	merely 	restating
its 	position. 	(Alhambra City and High School 	Districts 	(1986)
any provision of this 	chapter, 	unless 	such
expression contains 	a threat of 	reprisal,
force, 	or promise of benefit; 	provided,
however, 	that the employer shall not express
a preference 	for 	one 	employee 	organization
over another 	employee 	organization.
55

PERB Decision No. 	560, 	pp. 	15-18; 	Muroc Unified School District
(1978) 	PERB Decision No. 	80, pp. 	21-22.)
ORDER
The unfair practice 	charge 	in Case No. 	S-CO-209 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Craib 	and 	Shank 	joined 	in this 	Decision.
66

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
March 19, 	1990
Robert 	Stroup
1725 N. 	Fine Street
Fresno 	CA 	93727
Richard 	Sawtelle
Sanger 	Unified 	Teachers 	Association
5330 N. 	Fresno Street
Fresno 	CA 	93710
Re: 	Sanger Unified 	School 	District v. 	Sanger Unified Teachers7
Association
Unfair Practice Charge No. 	S-CO-209
DISMISSAL 	LETTER
Dear Mr. 	Stroup:
In the above-referenced charge 	filed on January 	18, 	1990, 	you
allege 	that 	the 	Sanger Unified Teachers' 	Association 	(SUTA)
violated 	section 3543.6(c) 	of the Government Code 	(EERA).
Specifically, 	you 	allege 	SUTA 	engaged 	in bad 	faith 	bargaining by
walking out of a mediation session on January 	10, 	1990, 	which had
been 	scheduled 	approximately 	one 	month previously. 	You 	also
allege 	that 	SUTA 	entered 	the 	mediation 	session on January 	10
without 	any 	intention of 	reaching an agreement 	on any 	of 	the
outstanding 	issues.
On February 	9, 	1990, 	you filed a 	first amended charge and allege
that 	SUTA 	engaged 	in 	bad 	faith 	bargaining 	by 	involving 	students
in the 	negotiation process, 	coaching 	students 	to 	serve as 	SUTA's
political 	tools 	and 	by 	SUTA walking 	out 	of 	the 	mediation 	session
which had 	been 	scheduled 	nearly one 	month before.
I 	indicated to you 	in my attached 	letter dated February 	20, 	1990,
that 	the 	above-referenced 	charge 	did 	not 	state 	a prima 	facie
case. 	You were 	advised if 	there were any 	factual 	inaccuracies 	or
additional 	facts 	that would 	correct 	these 	deficiencies 	explained
in that 	letter, 	you 	should amend that 	charge accordingly. 	You
were 	further 	advised 	that 	unless 	you 	amended 	the 	charge 	to 	state
a prima 	facie case or withdrew it prior to March 	2, 	1990, 	the
charge 	would 	be 	dismissed.
On March 2, 	1990, 	you filed a 	second amended charge. 	Your 	second
amended 	charge 	restated 	the 	allegations 	contained 	in your
previous 	charges 	and allege 	the 	following new facts, 	which 	I 	have
summarized:

1. 	On or about February 	13, 	1990, 	SUTA president Ken
Simpson approached 	the 	spouse 	of 	a 	board member 	and 	made 	the
following statement, 	"We won't 	strike this year. 	We will
strike in the fall."
2. 	On or about February 8, 	1990, 	a mediation session was
held 	in the 	state mediation 	and 	conciliation office 	in
Fresno. 	During this 	meeting SUTA's 	representative 	agreed to
present 	the mediator/district's 	proposals 	to his
constituents 	in a neutral 	manner 	in order 	for the 	teachers
to 	make 	an 	informed vote on the proposals.
3. 	On February 	16, 	1990, 	SUTA held a meeting among 	its
members 	to vote 	on the mediator/district's proposals. 	An
analysis 	of 	the proposals was 	prepared by 	SUTA and
circulated 	among 	its 	members 	sometime 	before 	the 	meeting.
SUTA's 	analysis 	contained 	numerous 	misrepresentations.
4. 	Despite SUTA's 	commitment to present the proposals 	in a
neutral 	fashion, 	blatantly false statements, 	distortions 	and
convenient omissions 	appeared 	in SUTA's 	analysis 	and 	SUTA
intentionally 	misrepresented 	the 	district's 	proposals 	in
order to 	ensure 	a rejection.
5. 	SUTA has 	engaged 	in a pattern of bad 	faith bargaining
by walking 	out 	of 	the 	first mediation 	session when 	it 	had
been 	scheduled 	nearly one month before, 	by making 	indirect
but 	calculated threats 	of 	strikes 	to members 	of 	the board
and by misrepresenting 	the district's 	proposals 	to 	its
members.
In your 	amended 	charge 	you 	allege 	that 	this 	conduct 	establishes
that 	SUTA has 	refused 	to 	negotiate 	in good 	faith 	in violation 	of
Government Code 	section 3543.6(c). 	After reviewing your original
and 	amended 	charges 	my 	investigation 	reveals 	the 	following
additional 	facts.
On February 	13, 	1990, 	following a meeting of the district's 	board
of 	trustees, 	SUTA president Ken Simpson approached Betty Crosby,
spouse 	of 	board 	member Wayne 	Crosby 	and 	made 	the 	following
statement, 	"We won't 	strike this year. 	We will 	strike 	in the
fall."
On February 	8, 	1990, 	a mediation session was 	held 	in the 	state
mediation and 	conciliation office 	in Fresno. 	During 	the 	meeting
Richard Sawtelle, 	SUTA's 	representative, 	agreed to present the
mediator/district's 	proposals 	to his 	constituents 	in a 	neutral
manner.
22

On February 	16, 	1990, 	SUTA held a meeting among its members 	to
vote on the mediator/district's proposals. 	An analysis 	of 	the
proposals 	was 	prepared by 	SUTA 	and 	circulated 	among 	its 	members
sometime before 	the meeting.
Based on 	the 	allegations 	set 	forth 	above 	and 	the 	reasons
contained 	in this 	letter and my letter of February 20, 	1990, 	I
find you have 	failed 	to 	state 	a prima 	facie 	violation of 	section
3543.6(c) 	of the EERA.
In your 	second 	amended 	charge 	you have 	alleged additional 	facts
regarding the 	statement by Mr. 	Simpson to Mrs. 	Crosby to 	support
your allegation that 	SUTA has 	violated 	section 	3543.6(c) 	of 	the
EERA. 	The 	communication by Mr. 	Simpson appears 	to be 	covered by
the right of 	free 	speech and thus does 	not violate 	the EERA. 	In
a 	series 	of 	cases 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	concluded 	that despite 	the 	fact that 	the EERA does 	not
contain 	specific 	language 	guaranteeing 	free 	speech, 	a 	free 	speech
right 	is 	implied 	in the 	language and purpose of the Act. 	Rio
Hondo Community College District 	(1980) 	PERB Decision No. 	128;
Antelope Community College District 	(1979) 	PERB Decision No. 	97;
Muroc 	Unified School 	District 	(1978) 	PERB Decision No. 	80. 	In
Rio 	Hondo 	PERB held 	that 	an employer's 	speech which 	contains 	a
threat of 	reprisals 	or 	force 	or promise of 	benefit will
constitute a violation of 	the Act. 	This 	standard applies with
equal 	force to 	statements 	made by 	employee 	organizations.
In this 	case however, 	Mr. 	Simpson's 	statement to Mrs. 	Crosby does
not 	constitute an outright 	threat of 	force or reprisal, 	or
promise 	of benefit 	to 	the district's 	board of 	trustees.
Simpson's 	statement was 	not made directly to 	the board of
trustees 	and you 	have 	failed 	to 	show that 	this 	statement was 	made
for 	the purpose 	of 	being 	communicated 	to 	the 	entire 	board 	for
action. 	Even assuming that Mr. 	Simpson made this 	statement
directly 	to 	the board 	of 	trustees 	and members 	of 	the board 	of 	the
trustees 	felt uncomfortable because of Mr. 	Simpson's 	statement,
the 	test 	is 	not whether any 	individual 	felt 	threatened or
intimidated. 	Rather examination 	focuses 	on whether, 	under the
existing 	circumstances, 	the 	statements 	reasonably 	tend to 	coerce
or 	intimidate. 	Clovis 	Unified 	School 	District 	(1984) 	PERB
Decision No. 	389. 	You have 	failed to present 	any evidence which
demonstrates the 	statement made by Mr. 	Simpson to Mrs. 	Crosby
would 	reasonably 	tend 	to 	coerce 	or 	intimidate 	the board 	of
trustees 	in their 	exercise 	of 	rights 	protected by the Act.
The 	amended 	charge 	also 	alleges 	that 	SUTA agreed 	to 	present 	the
mediator/district's proposals 	in a 	neutral 	manner; 	SUTA's
analysis 	of 	the proposals 	contained numerous 	misrepresentations;
and 	SUTA 	intentionally 	misrepresented 	the 	district's 	proposals 	to
its 	members 	in order to 	ensure 	a rejection. 	As 	I 	indicated 	in my
letter of February 20, 	1990, 	there are certain acts, 	which have a
potential 	to 	frustrate 	negotiations 	and 	to 	undermine 	the
33

exclusivity 	of 	the bargaining agent 	that 	are held 	to 	be 	unlawful.
These 	acts 	are deemed to be 	"per 	se" 	indicators 	of bad 	faith
bargaining and a 	single act will 	indicate a violation. 	See,
Pajaro Valley Unified School District 	(1978) 	PERB Decision No.
51. 	SUTA's 	failure 	to comply with 	its 	agreement 	to present the
proposals to its members 	in a neutral manner is not, 	alone, 	a
"per 	se" 	indicator of bad faith bargaining. 	Even utilizing the
"totality of 	conduct" 	test, 	none of 	the new facts 	alleged 	in your
second 	amended 	charge 	establish 	a prima 	facie 	violation of
section 3543.6(c). 	Therefore, 	I am dismissing the charge based
on 	the 	facts 	and 	reasons 	contained 	in this 	letter and my 	letter
of February 20, 	1990.
Right 	to Appeal
Pursuant 	to Public 	Employment Relations 	Board regulations, 	you
may obtain a 	review of this 	dismissal 	of 	the 	charge by 	filing an
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service of 	this 	dismissal 	(California Administrative Code, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and five
copies 	of 	such 	appeal 	must be 	actually received by 	the 	Board
itself before the 	close of business 	(5:00 p.m.) 	or 	sent by
telegraph, 	certified or Express 	United States mail postmarked no
later than the 	last date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file 	a timely appeal 	of 	the refusal 	to 	issue a 	complaint,
any 	other party may 	file with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar days
following the date 	of 	service 	of 	the 	appeal 	(California
Administrative Code, 	title 8, 	section 32635(b)).
Service
All 	documents 	authorized 	to be 	filed 	herein must 	also 	be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy 	of 	a 	document 	served 	upon a party 	or 	filed
with the 	Board 	itself. 	(See California Administrative 	Code,
title 	8, 	section 	32140 	for the required contents 	and a 	sample
form.) 	The document will 	be 	considered properly 	"served" 	when
personally 	delivered 	or deposited 	in 	the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time 	in which to 	file 	a document
with the 	Board 	itself 	must 	be 	in writing and 	filed with the 	Board
A4

at 	the previously noted address. 	A request 	for an 	extension 	must
be 	filed 	at 	least 	three 	calendar days 	before 	the 	expiration of
the 	time 	required 	for 	filing the document. 	The 	request must
indicate good cause for and, 	if known, 	the position of each other
party 	regarding the 	extension, 	and 	shall be 	accompanied by proof
of 	service 	of 	the 	request 	upon 	each party 	(California
Administrative Code, 	title 8, 	section 32132).
Final 	Date
If no appeal 	is 	filed within the specified time 	limits, 	the
dismissal will become 	final when the time 	limits 	have 	expired.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
Michael 4. Gash	By Michael E. 	Gash
Regional 	Attorney
Attachment
5

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
February 20, 	1990
Robert Stroup, 	Attorney
Sanger 	Unified 	School 	District
1725 N. 	Fine
Fresno, 	CA 93727
Re: 	Sanger Unified School 	District v. 	Sanger Unified Teachers
Association
Unfair Practice Charge No. 	S-CO-209
WARNING 	LETTER
Dear Mr. 	Stroup:
On January 	18, 	1990, 	you filed a charge 	in which you allege that
the 	Sanger Unified Teachers 	Association 	(SUTA) 	violated 	section
3543.6(c) 	of the Government Code 	(EERA). 	Specifically, 	you
alleged 	that 	the 	SUTA 	engaged 	in bad 	faith bargaining by walking
out of a mediation session on January 	10, 	1990, 	which had been
scheduled 	approximately one 	month previously. 	You 	also 	alleged
that 	the 	SUTA 	entered 	the 	mediation 	session on January 	10 	without
any 	intention of 	reaching 	an agreement 	on any of 	the 	outstanding
issues.
On January 31, 	1990, 	I 	spoke with you regarding your charge and
you 	informed me 	that 	you would provide 	me with additional
information to 	supplement it. 	On February 2, 	1990, 	you
telephoned me 	and 	stated 	that 	you were 	in the process 	of
gathering 	new 	information 	and 	you would 	need 	additional 	time 	to
provide me with 	the 	information 	for purposes 	of 	amending your
charge. 	We agreed 	that you would provide me with 	the 	additional
information or amend your charge by February 	8, 	1990. 	On
February 8, 	1990, 	Ms. 	Mary Beth deGoede, 	of your office informed
me 	that 	you would be 	filing 	an amended 	charge. 	I 	received your
amended charge on February 	9, 	1990.
Your 	amended 	charge 	restated 	the 	allegations 	contained 	in 	your
original 	charge 	and 	alleged 	the 	following 	new 	information:
4. 	Between the dates of December 	10 	and 	15,
1989, 	derogatory cartoons 	showing the
teachers' 	alleged 	suffering caused by the
Administration were 	hung 	on 	students'
lockers. 	Photographs 	of these cartoons were
taken and will 	be produced 	as 	the proceedings
progress. 	The District is 	informed and
believes 	and 	thereon alleges 	that 	Jim
Gleeson, 	member of the Association's

Sanger 	Unified 	School 	District 	v. 	Sanger 	Unified 	Teachers
Association
Unfair Practice Charge No. 	S-CO-209
WARNING 	LETTER
Page 2
negotiating team, 	hung the 	cartoons 	on his
students' 	lockers to instill the students
with 	feelings 	of contempt toward the
Administration.
12. 	On January 23, 	1990, 	a meeting was held
by 	the 	District's 	Board of 	Trustees where
public 	comment was 	entertained. 	Student,
Christina Tusan, 	addressed the Board
regarding her 	feelings 	about 	the 	teachers 	in
a disrespectful 	tone. 	The District 	is
informed 	and believes 	and 	thereon 	alleges
that 	Christina 	Tusan was 	coached by members
of the Union to 	serve as 	its 	advocate. 	A
copy of Ms. 	Tusan's 	speech is 	attached to
this 	charge as 	Exhibit C and made as part
hereof.
Moreover, 	Ms. 	Tusan further advocated her
support 	for the 	Union and disrespect 	toward
the Administration in a 	letter to 	the 	editor
of the Sanger Herald. 	The letter, 	attached
to 	this 	charge 	as 	Exhibit D and made a part
hereof, 	contains 	a blatant 	falsehood that 	it
was 	the mediator, 	and not the Association,
who walked out 	of 	the mediation 	session. 	The
District 	is 	informed 	and believes 	and 	thereon
alleges 	that Ms. 	Tusan would have no
knowledge 	of 	the 	events 	at 	the mediation
session, 	nor would 	she have written such a
false 	statement, 	unless 	she had been coached
by members 	of 	the Association.
You 	also 	alleged 	in your 	amended 	charge 	that 	"the 	Union 	engaged
in bad 	faith 	bargaining by 	involving 	students 	in the 	negotiations
process, 	coaching them to 	serve as 	its political 	tools 	and by
walking out 	of 	the mediation 	session when 	it had been 	scheduled
nearly 	one 	month before."
My 	investigation 	revealed 	the 	following 	facts.
The 	Sanger Unified School 	District 	(District) 	is 	a public 	school
employer. 	The Sanger Unified Teachers Association 	(SUTA) 	is 	an
22

Sanger Unified 	School 	District v. 	Sanger 	Unified Teachers
Association
Unfair Practice Charge No. 	S-CO-209
WARNING 	LETTER
Page 3
employee 	organization and 	the 	exclusive 	representative 	of 	an
appropriate 	unit 	of 	certificated 	employees.
The 	District 	and 	SUTA are parties 	to 	a 	collective bargaining
agreement 	that 	expired on June 	30, 	1989. 	The District and SUTA
began negotiations 	on a 	successor contract 	in or about May, 	1989.
No 	agreement 	has 	been 	reached 	on 	a 	successor 	contract 	and 	impasse
was 	declared.
Between the dates of December 	10 and 	15, 	1989, 	cartoons depicting
the teachers' 	allegedly suffering were hung on students' 	lockers.
Sometime 	in December 	1989, 	a mediation 	session was 	scheduled 	for
January 	10, 	1990. 	Prior to the 	scheduled mediation 	session you
spoke with Tom Jones, 	the 	state mediator, 	and 	informed him that
there 	should be 	no 	cut-off 	time 	for the January 	10th 	session.
You did not 	speak directly with Richard Sawtelle, 	the negotiator
for SUTA.
On January 	10th 	the 	scheduled 	mediation 	session 	commenced 	between
the 	District 	and 	the 	SUTA negotiating teams. 	At 	the beginning of
the 	session you 	informed 	the 	mediator that 	the 	District was
willing to mediate as 	long as 	necessary to 	reach an agreement.
Between 	10:00 	a.m. 	and 	11:00 	a.m. 	on January 	10th, 	the mediator
informed 	the 	District 	that 	Sawtelle would 	not 	continue 	the
session after 	6:00 p.m. 	because of 	an another engagement.
Throughout the remainder of the day, 	the District and SUTA
continued 	to 	exchange 	informal 	concepts 	in an attempt 	to 	reach 	an
agreement. 	Sometime after 	4:00 p.m. 	the District 	informed the
mediator that 	it was 	going 	to prepare 	a 	comprehensive 	formal
proposal 	for a two-year agreement. 	At 	5:40 p.m., 	while 	the
District was 	still dictating the proposal, 	the mediator 	informed
the 	District team that 	the 	SUTA team was 	leaving. 	Approximately
twenty 	minutes 	later, 	the 	mediator informed the District 	team
that 	two 	members 	of 	SUTA's 	team had returned 	to 	accept 	the
District's proposal, 	but they were not prepared to mediate.
On January 	19, 	1990, 	another mediation session was held between
the 	District and SUTA. 	This 	session began at 	10:00 	a.m. 	and
ended at 	1:00 	a.m. 	the 	following morning. 	A 	session was 	also
held on January 22, 	1990, 	which commenced at 	10:00 	a.m. 	and ended
at 	11:00 p.m. 	Another 	session was held on February 2, 	1990.
On January 23, 	1990, 	during public comment, 	at the Board of
Trustees' 	meeting, 	a student, 	Christina Tusan made a statement to
33

Sanger 	Unified 	School 	District 	v. 	Sanger 	Unified 	Teachers
Association
Unfair Practice Charge No. 	S-CO-209
WARNING 	LETTER
Page 4
the 	Board 	regarding her 	support 	for the 	teachers 	in the district.
Ms. 	Tusan also 	sent a 	letter to the 	editor of 	the 	Sanger Herald
advocating her 	support 	for 	teachers 	in the district, 	which was
published.
Based upon the allegations 	set 	forth above, 	I 	do not 	find that
you have 	established 	a prima 	facie 	violation of 	section 	3543.6(c)
of 	the EERA.
In determining whether a party has 	violated 	section 	3543.6(c) 	of
the EERA, 	the Public 	Employment Relations 	Board 	(PERB) 	utilizes
the 	"per 	se" 	or the 	"totality of the conduct" 	test, 	depending on
the 	specific 	conduct 	involved 	and the 	effect 	of 	such 	conduct 	on
the negotiating process. 	Stockton Unified 	School 	District 	(1980)
PERB Decision No. 	143. 	In Pajaro Valley Unified School 	District
(1978) 	PERB Decision No. 	51, 	PERB defined the distinctions
between the two tests. 	The 	Board noted:
The National 	Labor 	Relations 	Board 	(hereafter
NLRB) 	has 	long held that 	[a duty to bargain
in good faith] 	requires 	that the 	employer
negotiate with a bona 	fide 	intent 	to 	reach an
agreement. 	In re Atlas Mills. 	Inc. 	(1937) 	3
NLRB 	10 	[1 LRRM 60]. 	The standard generally
applied 	to 	determine whether 	good 	faith
bargaining has 	occurred has 	been 	called 	the
'totality of conduct' 	test. 	See NLRB v.
Stevenson Brick and Block Co. 	(4th Cir. 	1968)
393 	F.2d 	234 	[68 	LRRM 2086] 	modifying 	(1966)
160 NLRB 	198 	[62 	LRRM 	1605]. 	This 	test looks
to the 	entire course of 	negotiations 	to
determine whether 	the 	employer has 	negotiated
with 	the 	requisite 	subjective 	intention of
reaching 	an 	agreement.
There are certain acts, 	however, 	which have 	such a potential 	to
frustrate 	negotiations 	and 	to undermine 	the 	exclusivity 	of 	the
bargaining 	agent 	that 	they 	are 	held 	unlawful 	without 	any
determination of 	subjective 	bad 	faith 	on 	the part 	of 	the
employer. 	Pajaro. 	supra, 	at pp. 	4-5. 	These acts 	are deemed to
A4

Sanger 	Unified 	School 	District 	v. 	Sanger 	Unified 	Teachers
Association
Unfair Practice Charge No. 	S-CO-209
WARNING 	LETTER
Page 5
be 	"per 	se" 	indicators 	of bad 	faith bargaining and a 	single 	act
will 	indicate a violation.
The charge, 	as presently written, 	and amended, 	fails to 	state a
prima 	facie violation of EERA section 	3543.6(c). 	SUTA's 	leaving
the January 	10th 	session at 	5:40 p.m., 	cannot alone, 	establish a
"per se" 	violation of section 3543.6(c).
You did 	not 	have 	any direct 	contact with 	Sawtelle prior 	to 	the
mediation 	session of 	January 	10th 	to 	specifically 	set 	a 	time
schedule 	for that 	session. 	The 	session began at approximately
10:00 	a.m., 	and between 	10:00 	a.m. 	and 	11:00 	a.m. 	you were
informed 	by 	the 	mediator 	that 	Sawtelle would 	not 	continue 	the
session after 	6:00 p.m. 	The 	session 	lasted over 	seven hours 	and
at 	5:40 	p.m. 	the District had not 	finished dictating 	its
proposal. 	In addition, 	two members 	of SUTA's 	team returned and
offered to accept the proposal, 	but 	not mediate 	it at that time.
Furthermore, 	there have been three 	additional mediation 	sessions
held 	since 	the 	January 	10th 	session 	lasting 	in 	excess 	of 	twenty-
eight hours. 	SUTA's 	single act of 	leaving the mediation session
on 	January 	10th 	has 	not 	significantly 	frustrated 	the 	negotiation
process 	and therefore does 	not violate 	section 3543.6(c) 	of 	EERA.
You also 	submitted a 	negotiations 	update memorandum, 	which was
circulated by SUTA sometime 	in December, 	1989, 	a transcript of a
statement made by SUTA president-elect, 	Ken Simpson, 	during
public 	comment, 	at the District's Board of Trustees' 	January 	9,
1990, 	meeting, 	a transcript of a statement made by a student,
Christine Tusan, 	during public 	comment, 	at the District's 	January
23, 	1990, 	meeting, 	and a copy of Ms. 	Tusan's letter to the
editor, 	which was published 	in the Sanger Herald. 	You have
failed 	to 	show how the 	conduct 	of Ms. 	Tusan has 	involved 	students
in 	the 	negotiation process 	between the 	District 	and 	SUTA.
Your allegations 	suggest that Ms. 	Tusan was 	acting on behalf 	of,
or as 	an agent 	for SUTA. 	Under California 	common 	law, 	the 	acts
of 	an agent within his/her 	actual 	or apparent 	authority 	are
binding 	on 	the principal. 	Antelope Valley 	Community College
District 	(1979) 	PERB Decision No. 	97. 	Ostensible or apparent
authority 	must be 	established 	through 	the 	acts 	of 	the principal.
To 	prove 	ostensible 	or 	apparent 	authority one 	must 	establish
representation by the principal 	of 	the 	agency; 	justifiable
reliance 	by 	the party 	seeking 	to 	impose 	liability 	on the
principal; 	and, 	a 	change 	in position resulting 	from that
55

Sanger 	Unified 	School 	District v. 	Sanger 	Unified Teachers
Association
Unfair Practice Charge No. 	S-CO-209
WARNING 	LETTER
Page 6
reliance. 	Inglewood Unified School 	District 	(1990) 	PERB Decision
No. 792.
You have 	failed 	to 	allege 	or 	show how the 	statement 	made 	by Ms.
Tusan, 	or her published 	letter to the 	editor resulted 	in a 	change
in 	the position of 	the district regarding 	its 	negotiations with
SUTA. 	Section 	3543.3 	of 	EERA 	specifically 	states:
A public 	school 	employer or 	such
representatives as it may designate . 	. 	.
shall 	meet 	and 	negotiate with 	and 	only with
-representatives 	of 	employee 	organizations
selected 	as 	exclusive 	representatives 	of
appropriate 	units 	upon request with regard 	to
matters within the 	scope of 	representation.
(Emphasis 	added.)
Clearly, 	you are under no obligation to meet 	and 	negotiate with a
student who 	makes 	comments 	during 	the public 	comments 	portion of
a board of trustees' 	meeting. 	Similarly, 	you are not obligated
to 	respond to any comments 	made 	in a 	letter to the 	editor of 	a
local 	newspaper. 	You have also 	failed to 	show that Ms. 	Tusan or
any other 	student 	is 	the 	"political 	tool" 	or advocate 	for the
SUTA. 	Even assuming Ms. Tusan was 	an agent of SUTA, 	her comments
are protected 	free 	speech. 	In Rio 	Hondo Community College
District 	(1980) 	PERB Decision No 	128, 	at pp. 	18-20, 	PERB adopted
for 	cases 	under 	the 	EERA 	the principle 	of 	protected 	free 	speech
set 	forth 	in 	section 	8(c) 	of 	the National 	Labor Relations Act:
The expressing of any views, 	argument, 	or
opinion, 	or the dissemination thereof,
whether in written, printed, 	graphic, 	or
visual 	form, 	shall not constitute or be
evidence 	of 	an 	unfair 	labor practice 	under
any of the provisions of this Act, 	if 	such
expression 	contains 	no 	threat 	of 	reprisal 	or
force 	or promise 	of 	benefit.
PERB noted 	(at p. 	20, 	fn.11) 	that a party's communication may
also 	escape protection 	if 	it 	evidences 	an attempt 	to 	bypass 	the
other party's 	bargaining representative. 	See, 	e.g., 	Westminister
School District 	(1982) 	PERB Decision No 277, 	pp 	5-12.
6

Sanger 	Unified 	School 	District 	v. 	Sanger 	Unified 	Teachers
Association
Unfair Practice 	Charge No. 	S-CO-209
WARNING 	LETTER
Page 7
None 	of 	the 	exceptions 	to 	the principle of protected 	free 	speech
are apparent 	in the present 	case. 	The 	statements by Ms. 	Tusan
during public 	comments 	and 	her 	letter 	to 	the 	editor 	contained 	no
threats 	or promises 	and did not attempt 	to 	bypass 	the 	District's
bargaining representative. 	Ms. 	Tusan's 	statements were thus
protected 	free 	speech. 	Similiarly, 	the 	statements 	made by Mr.
Simpson and 	the 	cartoons 	are protected 	free 	speech. 	Utilizing
the 	"totality of conduct" 	test, 	none of these facts establish a
prima 	facie violation of section 	3543.6(c) 	of the EERA.
You also 	allege 	in your 	charge 	that 	SUTA entered 	the 	mediation
session 	on 	January 	10th without 	any 	intention of 	reaching 	an
agreement 	on 	any 	of 	the 	outstanding 	issues 	to be 	negotiated.
However, 	you 	failed to provide any 	specific 	information to
support 	this 	allegation.
For these 	reasons, 	the charge 	as 	amended does 	not 	state 	a prima
facie 	case. 	If you 	feel 	that there are any 	factual 	inaccuracies
in this 	letter 	or 	any additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend 	the 	charge
accordingly. 	The 	amended 	charge 	should be prepared on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	Second Amended
Charge, 	contain all 	the 	facts 	and allegations you wish to make,
and be 	signed 	under penalty of perjury by 	the Charging 	Party.
The amended 	charge 	must be 	served on the 	respondent 	and the
original proof 	of 	service 	must be 	filed with PERB. 	If 	I 	do 	not
receive 	an 	amended 	charge 	or withdrawal 	from you before 	March 	2,
1990, 	I 	shall dismiss your charge. 	If you have any questions 	on
how to proceed please 	call me at 	(916) 	322-3198.
Sincerely,
Michael E. 	Gash
Regional 	Attorney
MEG:djt
77