PERB Decision No. 0145E•Marin Community College District (PERB 0145E)
Testo completo
STATE
OF
CALIFORNIA
DECISION
OF THE
PUBLIC
EMPLOYMENT
RELATIONS
BOARD
SERVICE
EMPLOYEES
INTERNATIONAL
UNION,
LOCAL
250 and
LOCAL
400,
AFL-CIO,
Charging
Party,
v.
MARIN
COMMUNITY
COLLEGE
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
}
)____________________ )
Case Nos.
SF-CE-297
SF-CE-316
PERB
Decision
No. 145
November
19, 1980
Appearances: Robert
J.
Bezemek,
Attorney
(Van
Bourg,
Allen,
Weinberg and Roger)
for Service
Employees
International
Union,
Local
250 and
Local
400,
AFL-CIO;
Jon
A.
Hudak,
Attorney
(Breon, Galgani
& Godino)
for
Marin
Community
College
District.
Before Gluck,
Chairperson;
Moore, Member.
DECISION
The Marin Community
College
District
(hereafter
District)
has
filed
exceptions to the attached hearing
officer's
proposed
decision
which
holds
that
the
District
violated
1
section
3543.5(a) of the Educational
Employment
Relations
lsection
3543.5 provides:
It
shall
be
unlawful for
a
public schoolemployer
to:
{a) Impose or threaten to
impose
reprisals
on employees, to discriminate or threaten to2 Act (hereafter EERA) by terminating its employee, Johnny Pace, because of his union activities. The hearing officer also found that the District had violated section 3543.5(a) and (b)3 by adopting rules which, among other things, forbade access of classified employee organization representatives to the campuses of the District during coffee and rest breaks. After considering the entire record and briefs of the parties, the Board adopts the hearing officer's findings of fact, including his credibility determinations,4 and affirms his conclusions of law to the extent modified herein. discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. . . . . . . . . . . . . . . . . . . . . . 2EERA is codified at Government Code section 3540 et seq. All statutory references are to the Government Code unless otherwise noted. 3section 3543.5 provides: It shall be unlawful for a public school employer to: . . . . . . . . . . . . . . . . . . . . . (b) Deny to employee organizations rightsguaranteed to them by this chapter. . . . . . . . . . . . . . . . . . . . . . . . 4santa Clara Unified School District (9/26/79) PERB Decision No. 104. 2
FACTS I. Background Johnny Pace had been employed by the District as a carpenter since 1963 and was considered by his supervisors to be good at his job. From 1967 through 1976, Pace was very active in Service Employees International Union (hereafter SEIU}, having served as a steward during those years. In this capacity, he participated in negotiations with the District, represented employees' grievances, attended college-wide meetings as the employee representative, and recruited on behalf of the union. Pace's union activities were not questioned until 1974 when Ole Prahm became supervisor of plant facilities, a position that placed him two supervisory levels above Pace. Throughout the course of their relationship, there were numerous confrontations between Prahm and Pace centered on the latter's union activity. In addition to the examples described in the hearing officer's decision, Pace and Prahm also clashed over a hiring issue. Pace believed that Prahm had hired an unqualified employee from his (Prahm's} former place of employment. He complained first to Prahm, himself, and then to the SEIU business agent. As with the other controversies discussed in the hearing officer's decision, this matter was finally resolved before the board of trustees in favor of SEIU. 3
On other occasions, the District's agents expressed their opinions of unions. During one meeting with his employees, Prahm stated that, in his opinion, they did not need unions, as District employees were "one big happy family" which could take care of its own problems and did not need unions telling the District how to run its business. On another occasion, Leo Dunne, a supervisor working under Prahm, but not Pace's regular supervisor, warned Nick Garcia, an SEIU steward, that he should not be relying on Pace or the union so much because there would come a day when he would get in trouble and neither Pace nor the union would be able to help him out. II. The Incident on April 21, 1978 This incident forms the basis for one of SEIU's unfair practice charges which alleges that Pace was disciplined because of his union activities. On the morning of April 21, Pace arrived at work some time before his starting time. While waiting for a work assignment from his immediate supervisor, Mike Hughes, Pace became involved in a conversation between Nick Garcia and another employee, Mike Schrader, about procedures for transferring or retaining union membership upon quitting the District's employ. As the conversation was breaking up, Leo Dunne, supervisor of maintenance systems, criticized the group for holding union meetings on company time and on District property. Garcia and Pace both protested that they were not 4
holding a "union meeting" and Garcia left the area to resume work. Pace remained and challenged Dunne's authority to give him work orders since he was not Pace's immediate supervisor. This led to a shouting match between the two men which Hughes was forced to break up. The hearing officer found that, at one point, Pace took Dunne by the arm. A few days later, Prahm asked Pace to meet with him about the April 21st incident. When Pace requested that a union representative be present during the meeting, Prahm replied that he wanted to see Pace alone and not anyone else. Pace refused to meet with him without a union representative, apparently believing that some discipline would result from such a meeting. After this refusal, Pace received from Prahm a written reprimand for challenging Dunne's authority, not following Dunne's orders, and for coming into "direct physical contact" with Dunne. Neither Garcia nor the third employee who was involved in the so-called "union meeting" received a reprimand, although they, too, were objects of Dunne's order to disperse. Prahm set up two subsequent meetings, both of which Pace refused to attend because Geoffrey Sackett, the SEIU representative, was unavailable. Prahm made no attempt to ascertain when Sackett could attend the meetings. Although Sackett made several attempts to contact Prahm to set up a meeting time, his messages, left with Prahm's secretary, were never answered. 5
The parties finally did meet on May 4, pursuant to the District's equal opportunity grievance procedure.5 At this meeting Prahm refused to discuss the April 21st incident which was the very purpose of the meeting. On the same day SEIU filed, on behalf of Pace, a formal grievance over the reprimand. On May 17, Prahm wrote a memo to Les Bailey, the affirmative action officer who presided over the May 4 meeting. Prahm complained of Pace's "failure to follow instructions" to break up the "informal meeting" held during working hours, and also noted that neither Pace nor Garcia attended the two meetings he (Prahm) had scheduled to discuss the incident. Garcia, who also failed to attend these meetings, was not reprimanded. However, Pace received yet another letter of reprimand on June 26 from Prahm, reiterating the original charges and adding: .•. Additionally, you failed to follow my directions as the department head when requested to present yourself in my office for a meeting to discuss the issue ••.. This constitutes willful insubordination.6 Throughout the summer, Sackett made numerous attempts to process Pace's grievance beyond the first step in accordance 5The District had two separate grievance procedures, one to be utilized to resolve complaints based on race, sex, or religious discrimination, and the other to be used for other grievances over working conditions. Mr. Pace pursued both avenues in his attempt to get the letter of reprimand removed from his file. 6charging Party's Exhibit No. 6 6
with written District policies. His requests for responses from the personnel director, David Pia, were never responded to. III. The Solicitation Rules Shortly after the April 21st incident and in response to it, the District's board of trustees passed "Rules for Classified Employee Union Activity." During this period of time, SEID was involved in an organizing drive at the College of Marin in which Pace was an active participant. The rules applied only to classified employee organizations and were to expire upon the election of exclusive representatives for those employees. The relevant portion prohibits recruiting contacts during working hours which, by the District's definition, included coffee and rest breaks. Although the District had rules restricting non-union related solicitation and advertising, these were not enforced. IV. Termination of Johnny Pace In May 1978, Mr. Pace began seeing a physician about stress-related symptoms. Dr. Joseph Engleman, who treated Pace throughout the summer of 1978, concluded that Pace's condition was directly caused by the stress Pace was experiencing on his job and recommended that he take a few days off from work, which Pace did. On July 17, Pace returned from a two-week vacation but felt ill in the morning. He so informed his immediate supervisor, Mike Hughes, and requested the rest of the day off in order to 7
see Dr. Engleman. To this Hughes assented and told Pace that he would see him the next day. Pace replied that he was not sure about that and left. After consulting with Dr. Engleman, Pace returned to the college and hand-delivered to the president of the college (with whom he was on speaking terms), the personnel director, the affirmative action officer, and to the office of the District superintendent, written notification that his health was suffering? and that he would be absent from work. Sick leave payments commenced immediately. A couple of weeks later, the District placed in Pace's campus mailbox a sick leave certification form, which is typically completed by employees upon their return from sick leave. Pace, being absent from work at this time, never received this form. At the time, procedures for taking sick leave at the college were very informal. 8 Employees were not given copies of the District regulations concerning sick leave, and the 7The text of the letter is: Due to pressure created as a result of discrimination by Ole Prahm and his subordinates, I am compelled to stay away from the Campus temporarily because such pressure is causing serious damage to my health and a hardship to my family. Sincerely yours, Johnny B. Pace, Sr. 8rn fact, this same informality pervaded the procedures for taking leaves of absence. In 1977, Pace took a six-month leave due to his health. He merely asked Prahm for the time off, explaining it was for personal reasons, and was granted it. 8
general practice was to inform a supervisor of the need for sick leave and provide verification upon return. By July 20, Prahm had received a copy of Pace's letter explaining his absence; however, he did not show this to Mike Hughes, who had been inquiring about Pace's absence. Instead, Prahm requested on August 2 .that Pace be "removed from the District payroll," on grounds that he had been absent without leave since July 17. The District complied on August 2 and notified Pace by mail, but he did not respond to this letter, claiming his health would not withstand the additional emotional turmoil involved in answering the District. He was still under the care of Dr. Engleman, who wrote a verification on August 2 that Pace was, indeed, ill but would probably be able to return to work in September. The District, at one point, denied receiving Dr. Engleman's document, but evidence showed that it did have information from Kaiser, where Dr. Engleman practiced, indicating Pace was ill.9 The president of the college made two phone calls to Pace, but was unable to contact him. 9sackett testified that these forms were routinely sent to employers upon the filing of disability claims, which Pace filed. Also, there was hearsay testimony to the effect that Pia admitted that he had received some documentation of Pace's condition from Kaiser. However, this statement would be admissible in a civil action as an admission of a party. California Evidence Code section 1220. 9
Charges ultimately resulting in Pace's dismissal were filed on August 25, stating that he would be fired for being absent without leave and for failing to follow District procedures for taking sick leave. Pace did not answer these or request a hearing, believing that responding would cause increased stress and further endanger his health. Termination procedures were finalized on September 6, 1978, but the dismissal was made retroactive to July 17, and Pace was required to reimburse the District for sick leave payments he had received. DISCUSSION I. Discriminatory Discipline and Discharge The District claims that its discipline and discharge of Pace were not prohibited by EERA, section 3543.S(a) because both actions were taken for legitimate business reasons. In analyzing alleged section 3543.S(a) violations and defenses thereto, this Board has formulated the following test:10 Where the charging party establishes that the employer's conduct tends to or does result in some harm to employee rights granted under the EERA, a prima facie case shall be deemed to exist; Where the harm to employees' rights is slight, and the employer offers justification based on operational necessity, the competing interest of the employer and the rights of the employees will be balanced and the charge resolved accordingly; lOcarlsbad Unified School District (1/30/79) PERB Decision No. 89. 10
Where the harm is inherently destructive of employee rights, the employer's conduct will be excused only on proof that it was occasioned by circumstances beyond theemployer's control and that no alternative course of action was available; Irrespective of the foregoing, a charge will be sustained where it is shown that the employer would not have engaged in the complained-of conduct but for an unlawful motivation, purpose or intent. While the actual motive of an employer who disciplines a union activist is seldom revealed by direct evidence, the illegal purpose harbored by the discriminating employer may be inferred from the circumstances surrounding the discipline or discharge. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification for the employer's action; or other failure to establish a business justification. 11 It has been held that the discharge of a union activist "gives rise to an 12 inference of impermissible, anti-union discrimination." There can be little doubt that both the District's management team and Prahm, in particular, were very aware of Pace's union activities. He represented the union in llshattuck Denn Mining Corp. v. NLRB (1966) 362 F.2d 466 [62 LRRM 2401). 12Head Division, AMF v. NLRB (1979) 593 F.2d 972 [100 LRRM 3035]. See also NLRB v. Montgomery Ward & Co. (1977) 554 F.2d 996 [95 LRRM 2433]; NLRB v. Glen Barry Mfg. (1970) 422 F.2d 748 [73 LRRM 2301]. 11
negotiations, attended board of trustees' meetings and college-wide committee meetings in his capacity as steward, processed grievances through various levels of supervision, and participated in organizing campaigns. Although Prahm had exhibited his dislike of unions before the April 21, 1978 incident with Pace, the supervisor's actions subsequent to that show more eloquently than his words his anti-union attitude. The Board is unconvinced by the District's argument that Pace was singled out for reprimand following the April 21 incident solely because he allegedly physically confronted and threatened Dunne. Pace was ultimately reprimanded for three things: 1) holding a "union meeting" on company time; 2) challenging Leo Dunne's authority to give work orders and physically confronting him; and, 3) refusing to attend meetings with Prahm to discuss the incident. 13 Two of these three transgressions were also committed by Garcia, yet only Pace was disciplined. 14 Such unexplained disparate treatment of Pace, coupled with the 13Although the hearing officer failed to rule on thatportion of the complaint concerning Pace's reprimand, the District places it in issue by claiming that they had legitimate business justification for reprimanding Pace. 14Although Garcia was a shop steward and thus also associated with the union, Pace was the much more visible union activist. According to uncontradicted testimony of a formerSEIU business agent, Pace "was the union" to most of the people at the college. As noted, supra, Dunne had warned Garcia not to rely on "Pace or the union so much." 12
evidence of Prahm's prior antipathy towards him, tends to show that Pace's union activity was the underlying reason for disciplining him for holding a "union meeting" and refusing to attend Prahm's meetings.15 In addition, Prahm's refusal to discuss the April 21 incident at the May 4 grievance meeting and the District's subsequent refusal to process SEIU's grievance of the reprimands, further supports an inference of anti-union animus in the District's treatment of Pace. Apart from evidence of motive, the reprimand of Pace for failing to attend the meetings with Prahm without his union representative violates section 3543.5(a). In NLRB v. Weingarten, Inc. (1975) 420 U.S. 251 [88 LRRM 2689], the Supreme Court upheld the right of an employee to have a union representative present at an investigatory interview with the employer which the employee reasonably believes may result in discipline. This right is based on that portion of the National Labor Relations Act which declares that it is the national labor policy to protect "the exercise of workers of full freedom of association, self-organization, and designation of representative of their own choosing, for the purpose 16 of ••• mutual aid or protection." 15see Bert Wolfe Ford (1978) 239 NLRB 555 [100 LRRM 1098]; National Tape Corp (1970) 187 NLRB 321 [76 LRRM 1008]. 1629 u.s.c. section 151. 13
The Supreme Court noted: The union representative whose participation he [the employee] seeks is ••. safeguarding not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly.17 Similarly, under EERA, an employee's right to be represented in employment relations is specifically mentioned in the Act.18 Section 3543 declares: 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 ofemployer-employee relations •••• It is appropriate, therefore, to find that employees under ERRA enjoy the right of representation at investigatory interviews, such as, the one involved in this case. Hence, the District's reprimand of Pace for his failure to attend meetings with Prahm, as well as the reprimand for discussing union business allegedly during working hours, violates section 3543.5(a) .19 17weingarten, supra, at 260; 2692. 18Fire Fighters Union v. City of Vallejo (1974) 12 Cal. 3d 608. 19 Van Tran Electric Corp. (1975) 218 NLRB 43 [89 LRRM 1336], illegal discharge of employee who refused to attend 14
We
disavow
the hearing
officer's
theory
that
Pace
was
constructively
discharged.
The
doctrine of constructive
discharge
is
applied in
situations
where an employee
is
forced
to
quit his/her
employment
because
of
the
illegal
acts
of the
employer.
2°
Contrary
to the
implied
finding
by
the hearing
officer,
Pace
did not
quit
or
abandon
his
job.
21
His
notification
of July
17
states specifically,
"I
am
compelled
to
stay
away from
the
Campus
temporarily
•••
"
(emphasis
added).
Dr. Engleman's
testimony
and
the medical
verification
he
completed
(Charging
Party's
Exhibit
No. 11) on
August
2, 1978,
indicated that
Pace
would be
able to
return
to
work ·(and
inferentially that
he
desired to
resume work)
in
September 1978.
The Board
finds
the
District
unequivocally
dismissed
Pace
for
his alleged
absence without leave
and
failure
to properly
inform
his
supervisor of his
absence. That
Weingarten meeting without
union
representation; see
also,Spartan Stores
(1978) 235
NLRB
75 [100
LRRM
1181],
employee
illegally
discharged for walking
out of
an
investigatory
meeting
to get
his
union
representative.
20J. P. Stevens
Co. (1972) 461
F.2d
490 [80
LRRM
2609],
enforcing
183
NLRB
25 [75
LRRM
1407]; Hertz Corp. {1971) 449
F.2d
711
[78
LRRM
2569],
enforcing 184
NLRB
445 [74
LRRM
1633].
21The
only documentary evidence
relied
on by
the
Districtthat
Pace
quit his
job was an unemployment
insurance claimwhich he
filed
in July 1978. The
credited testimony
reveals,
however,
that in July
Pace applied for State Disability
which,
like
unemployment
insurance, is administered
by
the
Employment
Development Department.
It is unclear
why
this
form was
filled
out, but Pace
testified that
he understood
it
to pertain to the
disability benefits for which he was applying.
On
the lineinquiring about reasons for no longer working, Pace checked the
box, "Other," rather than "Discharged" or "Voluntary Quit."
15Pace did not respond to the District's written notification of its proposal to terminate his employment does not convince us that he abandoned his job. He was, at that point, under doctor's orders to refrain from stressful encounters, to not think about his work and to stay away from work until September. Pace testified that he began to feel ill when he received the charge letter and felt unable to contest it. We reject the District's proffered reasons for terminating Pace for several reasons. Pace put the District on ample notice that he was ill by notifying the president of the college, the personnel directo~, and the affirmative action officer of his need to be temporarily off work. Even if his immediate supervisor, Hughes, believed Pace did not properly request sick leave, he would have known of Pace's illness three d s after Pace left work had Prahm told Hughes of the July 17 letter. Prahm's unexplained failure .to communicate to Hughes becomes even more questionable in the face of the latter's repeated inquiries of Prahm as to Pace's whereabouts. The fact that Pace did not follow written regulations regarding sick leave reporting becomes irrelevant when we consider that he notified several officials of the college, putting Hughes on constructive notice that he was ill and would be off work 22 indefinitely; that the District put him on sick leave 22Armstrong Circuit, Inc. (1971) 189 NLRB 92 [76 LRRM 1669). 16
immediately, even though they claimed after the fact that this
was a result of a clerical error; that past practice for
reporting illness and taking leave was very informal and
allowed an employee to submit medical verification upon return
23 to work; and that the District's regulations concerning
sick leave reporting were never circulated to its employees.24
The District made only minimal efforts to contact Pace
during August when it was setting in motion the termination
process. In this context, the two phone calls which the
president made do not comport with treatment which would be
expected towards a 15-year employee with a good work record,
absent an anti-union motivation.25
We are further convinced that the District's claim of
business justification does not stand in light of the numerous
prevarications and contradictions of several of the District's
key witnesses during
-
the
- -
hearing.~
• .,
u
t::
For example, at the
hearing Prahm expressed surprise that Pace had any job
stress-related medical problems, and denied having received a
copy of Pace's July 17 memo. Yet Prahm sent a memo to
23st. Anne's Hospital (1979) 245 NLRB 130 [102 LRRM 1527].
24Avon Convalescent Center, Inc. (1972) 200 NLRB 702 [82
LRRM 1233].
25Los Gatos Joint Union High School District {3/21/80)
PERB Decision No. 120.
26v. v. Castings (1977) 231 NLRB 912 [96 LRRM 1121].
17Bob Hughes (as distinct from Mike Hughes) saying, "I received a copy of a letter ••. from Johnny Pace on Thursday, July 20, which stated that he was compelled to stay away from campus as a result of alleged discrimination . . . n27 There were other denials by District witnesses that they had received certain documents--David Pia claimed that the last communication he received from the union concerning Pace's grievance was dated July 3, but there is in evidence a letter from Sackett to Pia dated August 10. The president of the college testified, that at the time of Pace's dismissal, he was unaware of any medical problems Pace was having, yet Pace had hand-delivered his July 17 memo to Diamond's office. Prahm claimed if an employee requested union representation, he would, without fail, have someone at the meeting, but a memo from him belies such sentiment. It reads: I was left a message that the union representative would again not be available ••• however, at my discretion, I chose to proceed with the meeting anyway and did not call it off.28 In light of all the facts, we conclude that Pace was terminated solely because of his union activities in violation of section 3543.S(a). 2 7charging Party's Exhibit No. 8(a). 28charging Party's Exhibit No. 3. 18
II. The Rules Regulating Union Activity We summarily affirm the hearing officer's findings of fact and conclusions of law on this aspect of the complaint, viz., that the prohibition of solicitation by employee organizations during rest and coffee breaks is presumptively invalid and that the District did not offer adequate justification to rebut the presumption. Additionally, the rules as a whole were enacted for a discriminatory purpose because they were promulgated at an important point in SEIU's organizing campaign, 29 because they were directed only at classified employee organizations, and because the prohibitions against non-union commercial activity were not enforced at the time these restrictions on employee organizations were enacted.30 REMEDY Pursuant to the authority vested in this Board by section 3541.S(c) , 31 we affirm the proposed remedy and, in addition, ORDER the District to retroactively reinstate to 29state Chemical Co. (1967) 166 NLRB 455 [15 LRRM 1612]; Sardis Luggage Co. (1968) 170 NLRB 187 [70 LRRM 1230]. 30wm H. Block (1964) 150 NLRB 341 [57 LRRM 1531]. 3lsection 3541.5 provides: The initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board. Procedures for 19
July 17,
1978
Pace
into
the Public
Employees
Retirement
System
{PERS)
in
accordance with
the
rules
and
regulations
of
PERs.32
Having found
that
the
District
violated section
3543.S{a)
by
reprimanding
Pace
on
April
27,
1978 and
June 26, 1978,
it
is
also appropriate
that
the
District
purge
Pace's
files
of
all
material
relating
to
those
reprimands
which
this
Board
has
found
illegal
and
refrain
from
taking
any
disciplinary action
against
Johnny Pace based
on
those reprimands.
ORDER
Upon
the foregoing
findings of
fact,
conclusions of
law,
and
the
entire
record
of
this
case,
it
is
found
that
the
Marin
Community
College
District
has
violated
Government
Code
section
3543.S{a)
by
reprimanding
and
discharging
Johnny
Pace
and
has
violated section
3543.S(a}
and {b) by
adopting
overly
investigating,
hearing,
and
deciding these
cases
shall
be
devised
and
promulgated
by
the
board and
shall
include
all
of thefollowing:
. . . . . . . . . . . . . . . . . . . . . . .
(c)
The
board
shall
have
the
power
to issue
a
decision
and
order
directing
an
offending
party to cease
and
desist
from
the unfair
practice
and
to take such
affirmative
action, including but not limited to the
reinstatement of
employees with or without
back pay, as
will effectuate the policies of
this chapter.
32NLRB
v. Rice Lake Creamery (1966} 365
F.2d
888 [62
LRRM
2332].
20broad
no-solicitation rules.
IT
IS
HEREBY ORDERED
that
the
District
and
its
representatives
shall:
(1)
CEASE
AND
DESIST
FROM:
{a)
Imposing
or
threatening to
impose
reprisals
on
Johnny
Pace,
discriminating
or
threatening to
discriminate
against
Johnny Pace
or
otherwise
interfering
with,
restraining,
or
coercing
Johnny Pace
because
of his
exercise of his rights
to
form,
join,
and
participate
in the
activities
of
employee
organizations
of his
own
choosing
for the
purpose
of
representation
in
all
matters of
employer-employee
relations,
including the
right to
be
represented
at
a
meeting
with the
employer
from which he
thought
discipline
would
follow, by
discriminatorily disciplining
and
terminating
Johnny
Pace's
employment.
(b)
In
any
like
or
related
manner
denying
to
employees
rights
guaranteed
to
them by Government Code
section
3543
to
form,
join
and
participate
in the
activities
of
employee
organizations
by
adopting
rules
restricting
employee
organization access to
classified
employees
during
rest
and
coffee breaks,
and by
regulating only
classified
employee
organizing
activity.
(c)
In
any
like
or
related
manner denying
to
employee
organizations their rights guaranteed
by
section
3543.1
of
reasonable access at reasonable times to employees by
adopting
rules restricting
employee organization access to classified
21employees during rest and coffee breaks, and by regulating only classified employee organization activity. (d) Enforcing the, "Classified Union Activity Rules" passed by the board of trustees of the District on May 17, 1978. (2) TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH IS NECESSARY TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: (a) Immediately offer to fully reinstate Johnny Pace to his former job, or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights, benefits and privileges previously enjoyed; (b). Make Johnny Pace whole for any loss of pay and other benefit(s) he may have suffered by tendering to him a back-pay award equal to an amount that he would have been paid absent his unlawful discharge on July 17, 1978 until the date of the offer of reinstatement; this total amount to be offset by Pace's earnings as a result of other employment during this period, and with payment of interest at 7 percent per annum of the net amount due; (c) Reinstate Johnny Pace into the PERS retroactive to July 17, 1978, in accordance with the rules and regulations of PERS; (d) Remove from Johnny Pace's personnel files any and all material relating to the reprimands given to him for 22
discussing union business allegedly during working hours on April 21, 1978, and for refusing to attend meetings with his superiors regarding this incident without his employee organization representative. (e) Within five (5) workdays of date of service of this decision, post copies of the Notice attached as an appendix hereto at all work locations at the Marin Community College District where notices to employees customarily are placed. Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps should be taken to insure that said Notices are not reduced in size, altered, defaced or covered by any other materials; and, (f) At the end of thirty-five (35) workdays from date of service of this Decision, notify the San Francisco Regional Director of the Public Employment Relations Board, in writing, of the action the District has taken to comply with this Order. It is further ORDERED that the "Classified Union Activity Rules" passed by the board of trustees of the District on May 17, 1978 be rescinded, effective the date of their enactment. It is further ORDERED that the instant charges be dismissed in all other respects. By: .!Har~} Gluck, Cha1.rperson Barbara D. Moore, Member 23
APPENDIX NOTICE TO CLASSIFIED EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD An Agency of the State of California After a hearing in Unfair Practice Case Nos. SF-CE-297 and SF-CE-316, Service Employees International Union, Local 250 and Local 400, AFL-CIO v. Marin Community College District, in which both parties bad the right to participate, it has been found that the Marin Community College District violated section 3543.S(a) of the Educational Employment Relations Act (EERA) by interfering with, discriminating against, and coercing its employe~Johnny Pace, because of his exercise of his rights under the Act by discipling and terminating him because of his union activities and has violated section 3543.S(a) and (b) of EERA by imposing an overbroad set of "Classified Union Activity Rules" (dated May 17, 1978} which unlawfully restrict organizational activity. As a result of this conduct, we have been ordered to post this Notice, and we will abide by the following: (1) WE WILL CEASE AND DESIST FROM: (a) In any like or related manner imposing or threatening to impose reprisals on Johnny Pace, discriminatingor threatening to discriminate against Johnny Pace, or otherwise interfering with, restraining, or coercing Johnny Pace because of his exercise of his right to form, join, and participate in the activities of employee organizations of his own choosing for the purpose of representation in all mattersof employer-employee relations. 1
(b) Enforcing the Classified Union Activity Rules passed by the board of trustees of the District on May 17, 1978. (c) In any like or related manner denying to employee organizations rights guaranteed to them by Government Code section 3540, et seq. (2) WE WILL TAKE THE FOLLOWING AFFIRMATIVE ACTIONS WHICH ARE NECESSARY TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: (a) Immediately offer to fully reinstate Johnny Pace to his former job, or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. (b) Make Johnny Pace whole for any loss of pay or benefit(s) he may have suffered by tendering to him a back-pay award which constitutes an amount equal to that which he would have received absent his unlawful termination on July 17, 1978 until the date of the offer of reinstatement, this total amount to be offset by Pace's earnings as a result of other employment during this period, and with payment of interest at 7 percent per annum of the net amount due. (c) Retroactively to July 17, 1978, reinstate Johnny Pace into the PERS in accordance with the rules and regulations of PERS. (d) Remove from Johnny Pace's personnel files any and all material relating to the reprimands given to him for discussing union business allegedly during working hours on April 21 and for refusing to attend meetings with his superiorswithout his employee organization representative, when he reasonably believed that discipline would result. 2
In addition, we note that the classified Union Activity Rules passed by the District's board of trustees on May 17, 1978 have been rescinded. Dated MARIN COMMUNITY COLLEGE DISTRICT BY _ _,...---,----,--------- Authorized Agent of the District THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR 30 CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY MATERIAL. 3
STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 250 and LOCAL 400, AFL-CIO, Charging Parties, v. MARIN COMMUNITY COLLEGE DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ___________________ ) Unfair Practice Case Nos. SF-CE-297 SF-CE-298 SF-CE-316 PROPOSED DECISION (3/21/80) Appearances: Robert J. Bezemek, Attorney (Van Bourg, Allen, Weinberg and Roger) for Service Employees International Union, Local 250 and Local 400, AFL-CIO; Jon A. Hudak, Attorney (Breon, Galgani & Godino) for Marin Community College District. Before Michael J. Tensing, Hearing Officer. BACKGROUND On August 11, 1978, charges were filed by the Service Employees International Union, Locals 250 and 400 (hereafter SEIU or the Organization) against the Marin Community College District (hereafter the District) in cases SF-CE-297 and SF-CE-298. On September 29, 1978, an additional charge was filed by SEIU against the District, SF-CE-316. The three charges were consolidated for hearing. A hearing was convened on May 30, 1979. At that time, the Organization withdrew SF-CE-298. Evidence was received during four days of hearing relating to the other two
charges. Briefs were subsequently filed by the parties in October of 1979. The two remaining charges allege in substance that the District violated sections 3543.S(a}, (b) and (d} of the Government Code 1 by: (1) adopting a set of Union Activity Rules which regulate only classified employees; (2) discriminatorily enforcing these Union Activity Rules; (3) disciplining a classified employee because of his protected activities; and, (4) discharging or constructively discharging the same classified employee. ISSUES 1. Did the District violate section 3543.S(a), (b) or (d) of the EERA by the adoption of Union Activity Rules directed solely against classified employees? 2. Did the District violate section 3543.S(a}, (b) or (d) by their manner of enforcing these Union Activity Rules for classified employees? 3. Did the District violate section 3543.S(a) by disciplining, discharging, or constructively discharging a classified employee because of his protected activity? 1. All statutory references herein are to sections 3540 et seq. of the California Government Code (also referred to as the Educational Employment Relations Act (EERA) or the Act) unless otherwise indicated. 2
FINDINGS OF FACT General Background for Both Charges Mr. Johnny Pace was employed by the Marin Community College District on December 16, 1963 as a carpenter. He first became active in an employee organization about 1965. He served as chapter president of the California School Employees Association (hereafter CSEA) before joining SEIU in about 1967. Shortly after switching to SEIU, Pace became shop steward, representing trades and crafts employees 2 in their employment relationship with their employer. As shop steward, Pace served on various committees, such as the salary committee and the grievance committee, and also served on the Organization's executive board. 2. SEIU did not become the exclusive representative of the District's classified employees until 1978. The Public Employment Relations Board (hereafter PERB), formerly theEducational Employment Relations Board (hereafter EERB), held hearings in 1976 to determine appropriate classified negotiating units in the District. In October of 1977, the District entered into an interim agreement with both SEIU andCSEA. Units were determined in June of 1978 and SEIU became the exclusive representative of classified employees, as a result of an election, on December 7, 1978. Prior to the operative date of the EERA, July 1, 1976, public school employer-employee relations were governed by the Winton Act, Education Code section 13080 et seq., which did not provide for exclusive representation. 3
According to the uncontradicted testimony of Ms. Diane Reynolds, presently the special assistant to the chief for the State Department of Industrial Relations and, during much of the time in question, a business agent for Local 400 of SEIU, it is found that Mr. Pace remained a central figure in campus employee relations matters for SEIU during a period extending at least through 1976, when the Organization was experiencing a relatively heavy turnover of paid staff: Through all of our changes, he was the shop steward and continued on after I had left, and in fact because of all of our changes, which I think were a little disruptive, he was the one thing that was a little constant there at the college, and remarkably, even when we had some periods with basically no representation, when we were moving from one assignment to another, at least he -- you know, he kept the membership up and he kept the organization going, and he was an extremely active shop steward. To most of the people there at the college, he was the union. In February of 1974, Mr. Ole Prahm was hired by the District as supervisor of plant facilities, responsible for the maintenance, custodial and garden departments at the College of Marin. On August 23, 1978, Prahm was promoted to the position of director of facilities management. On March 31, 1979, he left District employment. Since February of 1974 and continuing through the period when the instant charges were filed, Mr. Prahm directly supervised the men to whom Mr. Pace reported (Mr. Cal Davis until January 1978 and w. M. "Mike" Hughes thereafter). 4
As shop steward, Pace brought grievances to his immediate supervisor and then to Prahm. During 1974, Pace was a member of a number of College of Marin committees. It was over these committees that he had his first major disagreement with Prahm. Prahm challenged Pace, calling him out of a committee meeting and asking him why he was there. Committee meetings were absorbing about three or four hours of Pace's work time each week.3 Pace's committee participation, active before Prahm's arrival, had never been questioned. The District superintendent subsequently phoned Prahm in Pace's presence and at his behest, affirmed that Pace was entitled to participate in the work of committees to which he had been elected or appointed. Prahm subsequently sought unsuccessfully to have all ex officio classified organizational participation in campus committees banned. But Prahm was informed that dropping classified employee participation would require banning certificated employee participation in committees, as well, something the administration was unprepared to do. Later, Pace took his complaint regarding Prahm's interference with his committee work to the president of the 3. While these were, strictly speaking, College of Marin activities rather than Organizational activities, Pace participated not only because of his active concern for employee interests, but also because of his SEIU stewardship. 5
campus, who ~lso talked to Prahm about it. Later still, in 1976, Prahm proposed to the District that it eliminate trade classifications, such as carpenters, plumbers, etc., and instead classify jobs with generic titles, such as laborer or general maintenance worker. According to the SEIU Local 250 business representative at that time, Geoffrey Sackett, whose testimony below is corroborated and credited, the question was hotly debated and Prahm and Pace were again involved in a verbal confrontation. A. [By Mr. Sackett] •.• [t]here was a lot of acrimony and a lot of debate, and we [i.e., SEIU] took a very, very strong position against generic terms, and that position was voiced by Johnny Pace since he was the most outspoken and the most able to speak to that question. Q. [By Mr. Bezemek] What was Mr. Prahm's involvement, if you know, in this reorganization? A. As I understand it, he was a mover in the reorganization, and it was his recommendation in terms to increase productivity to make everybody a general worker, so that you could have a person who was, you know, a plumber, and put a broom in his hand and tell him to go sweep the science room, and it didn't matter that there was a job to be done by a worker, that as long as they had bodies available that the work would get done, and that it would then increase productivity because you might not need two janitors if you had a janitor and a plumber. Q. And unions have traditionally opposed this sort of generic titling, haven't they? A. That's correct. Pace testified that at a meeting of all crafts 6
employees and certain other classified employees, the proposal to change job classifications was discussed with supervisorial personnel and Prahm made comments at that time to the effect that, "We don't need any union." Q. [By Mr. Hudak] So who brought up unions at this meeting? A. [By Mr. Pace] I believe he [Mr. Prahm] did. I don't remember anyone else bringing it up. He just stated that he didn't think we needed any of them around, that we were one big happy family, and we could take care of all our own problems, and that they were really bothersome to be trying to tell the college how to run its business. On the basis of the credibility determinations to be set forth hereinafter, Pace's account of this episode is credited. The proposal which Prahm backed and Pace opposed was not implemented. Subsequently, however, in 1977 and 1978, the District undertook a reorganization which reduced the classified work force from 134 to about 80 employees. It was Johnny Pace's perception that Ole Prahm was harassing him because of his race (Pace is black, Prahm is white) and because of his organizational activities. Pace spoke with the campus president about this. He felt that he was being discriminated against in the way work assignments were distributed and was being made an example of, in that he was, he felt, being given an unusually high percentage of menial jobs which did not utilize his skills as a professional carpenter. Pace also went to, among others, David Pia, the 7
District's personnel director. Pia later recalled their meeting at the hearing. His recollection is reported verbatim below because it so graphically reflects the extent of Johnny Pace's concern and the District's response. It also demonstrates what it was about Pace that Pia remembered best, perhaps reflecting on Pia's motivation later in the relationship. Q. Now, can you tell us what you recall about that particular meeting you and he had? A. [By Mr. Pia] I don't recall an awful lot, it's been quite a while, but I do remember one specific thing that he did to my desk which I recall quite clearly. In the course of his conversation, he defaced the desk with the -- with the pencil, the metal portion of a pencil. I don't think he was doing it intentionally. He was so intent on describing his concerns that I guess he just didn't -- didn't know what he was doing. Q. What type of pencil was that? A. It was a regular yellow pencil. Q. An ordinary wooden pencil? A. Yes. Q. Was the eraser worn off? A. Yes. Q. And how did he deface the desk? A. Well, he was talking to me and he was concentrating on the issue, and he was carving a groove on the top of my desk. I remember it because it's there today. Q. Well, didn't you point it out to him? 8
A. Well, I was so amazed I guess I didn't. He is quite an intense man. He was more concerned about other things, and I was there to listen. Q. Now, did he appear to be angry at you -- A. No Q. --and that was the reason why he was gouging your desk? A. No, no. I think he was extremely concerned about an issue, and he was concentrating on it, and I think he just subconsciously was doing that. Q. Do you recall the details of his complaint concerning Mr. Prahm at that time? A. I cannot recall specifically, but I do recall that -- that particular incident because I see it on my desk every day. Q. But beyond that you don't have any recollection A. No. Q. -- of what he was complaining about? A. Simply that he was -- he was concerned about their relationship. Q. Did you give him any assistance of any kind or any advice? A. Well, I tried to explain to him that -- that, you know, there are several instances in this life where you -- where there might be conflicts between individuals, but it's important to try to work out some kind of understanding, if possible. I was trying to -- as many times a personnel director does, I was trying to listen and trying to understand what the problem was to see if I can't give some help. Pace applied for, and was granted, a six month leave of absence without pay for the last six months of 1977. He 9
testified that other employees told him Prahm said he hoped Pace would not return from his leave of absence. According to Prahm, Pace came to him upon his return and said something to the effect that: I want to I want to just look out for me now. I'm tired of looking out for everybody else in the union, and I'm just going to be me. Prahm said he felt since Pace was no longer shop steward the adversarial aspect of their relationship would be removed and things "would work themselves out." Nonetheless, shortly after returning to work, Pace complained to Prahm regarding the same sort of harassment that had prompted his earlier complaints. Pace also contended that he was under surveillance and was being assigned more difficult work. The Incident of April 21, 1978 On April 21, 1978, Johnny Pace had a conversation in the District maintenance yard with two other employees, Nick Garcia and Mike Schrader. Garcia had replaced Pace as SEIU shop steward. Schrader was the SEIU steward for classified employees at another campus in the District. The subject of the conversation was Schrader's planned withdrawal from the Organization. (He was moving to another job.) Four witnesses testified concerning what happened during and after the exchange. Leo Dunne and Mike Hughes, the two supervisors who became involved, also filed written reports, which were received into evidence. 10
There is an unresolved disagreement as to when it was that the above exchange took place. It was either just before or just after 7:00 a.m., the time the shift begins. In any case, Leo Dunne approached Johnny Pace and told him to, "Stop hanging around the damned yard holding union meetings." Pace asked Dunne what he meant by a union meeting and Dunne replied, "The Union meeting you were just holding." Pace said he wanted to get things straightened out, and told Dunne that he wasn't his boss and that he hadn't been holding a union meeting. Pace suggested they go see Mike Hughes, Pace's immediate supervisor. Hughes had asked Pace to remain in the yard because he had a project for him. Dunne responded that he'd get it straightened out when he was good and ready. Pace went into Mike Hughes' office and asked him to come out. Back out in the yard, Pace asked Hughes, in front of Dunne, who his boss was. Hughes replied that he was. Hughes then asked Pace to go into the corporation yard and forget the whole thing. Hughes went back to his office. Another heated exchange followed. Pace took Dunne by the arm. Dunne testified that he said (in a loud voice audible in Hughes' office), "Take your so-and-so hands off of my arm." Hughes returned to the scene and separated the two men. The hearing officer concludes on the basis of the relative logic and consistency of the various versions, and his observation of the witnesses during the hearing, that the above facts can be believed. Though various versions of this scene 11
color the episode differently, further details offered by each of the witnesses are unnecessary. What is more significant to this decision is how the episode was subsequently dealt with. 4 After the confrontation, both Hughes and Dunne wrote memoranda, describing what they had observed, to Ole Prahm. On April 27, 1978, Prahm wrote a memo to Pace reprimanding him for challenging Dunne's authority rather than "doing as requested." This memo was not given to Pace until May 1, 1978, nine days after the confrontation. The reprimand was placed in Pace's personnel file. Prahm then attempted to schedule a meeting with Johnny Pace and Nick Garcia. Mr. Schrader, the third employee participant in the April 21st episode, was not included in the meeting, which was set for a Friday afternoon after work hours. Informed of the meeting, Pace refused to attend without a non-employee representative from the Organization present. Prahm pressed, but Pace was firm. Pace contacted Geoffrey Sackett, who then phoned Prahm to reiterate Pace's message. 4. Because Dunne's account is written in the third person its authorship is open to serious doubt. There is an obvious implication that it was at least co-authored by Ole Prahm himself. 12
Prahm was not available. Sackett left a message with Prahm's secretary saying that neither Pace nor Garcia would be attending the Friday meeting.5 Prahm scheduled another meeting for the following week. He did not contact Pace, Garcia or Sackett before setting the meeting time. Again, Sackett claims he phoned Prahm to say that the date was inconvenient, that he'd like to be consulted before a new date was set, and that neither Pace nor Garcia would attend a meeting without him. Prahm then prepared a second written reprimand for Pace which contended that Pace's refusal to attend a disciplinary meeting with him without union representation constituted "direct insubordination". Prahm made no further attempts to arrange meetings, testifying that it was obvious to him that the employees and their representative did not wish to meet with him. This, despite the fact that Sackett had sent a letter to Prahm the preceding week complaining that Prahm would not return his phone calls and would not meet with him. 5. Prahm contends that this message was never received, but the witness who could have supported Prahm's position, hissecretary, who allegedly took the message, was not called. Sackett's version is credited based on this fact and on thehearing officer's observation of the testimony of both Prahm and Sackett. 13
Later, on June 14, 1978, the Organization sent a letter to the personnel director, David Pia, with a copy to Ole Prahm, complaining that Prahm would not respond to the grievance that was eventually filed by the Organization over the April 21st incident. Meanwhile, the Organization had been pursuing a second approach. At College of Marin there are, in fact, two grievance procedures available in certain situations and they are not mutually exclusive. A meeting was arranged for May 4, 1978 through the office of Les Bailey, the affirmative action officer who had jurisdiction over the grievance procedure dealing with complaints based upon race. Bailey thought that since the complaint alleged both racial discrimination and general harassment it would be beneficial to have a meeting involving not only Ole Prahm, Nick Garcia, and Johnny Pace, but also the direct participation of the Organization, presumably hoping that the need to invoke the formal grievance procedure could be avoided and an informal resolution could be achieved. Prahm refused to discuss the Organization-related grievance in the context of the affirmative action inquiry. In fact, Prahm refused to discuss what had occurred on April 21, 1978 at all. The meeting ended with Bailey promising to investigate further. It was that same day that a formal grievance was filed by the Organization under the alternate procedure. 14
A second affirmative action inquiry meeting was arranged by Bailey for May 17, 1978, at a time when supervisors Leo Dunne and Mike Hughes could also be present. At this meeting both Dunne and Hughes were questioned extensively. Ole Prahm was present. Sackett revealed at this meeting that he had found the time clock relied upon by Dunne on April 21st was nine minutes fast. Contradictions in the stories of various participants and witnesses were explored, however nothing was resolved. Subsequent to the meetings mentioned, and with no further effort being made to deal with the matter, on June 26, 1978, Ole Prahm issued a letter of reprimand, but to only one of the three employees involved Johnny Pace. Copies. however, were sent to Nick Garcia and Geoffrey Sackett, as well as Mike Hughes. In its first paragraph, Prahm's letter claims that Pace's actions of April 21: •.. demonstrate wilful insubordination for supervisory staff and conduct unbecoming an employee in the public service .•• The reprimand goes on to state that: I would like to request that you immediately take steps to comply with the policies and proceduresas adopted by the Board of Trustees of the MarinCommunity College District or you will be subjectto dismissal. The reprimand concluded that: It is apparent that the incident which took place on 4/21/78, being a verbal discussion among 15
District employees not related to District business, was clearly on District time. The final two paragraphs state as follows: Additionally, you failed to follow my directions as the department head when requested to present yourself in my office for a meeting to discuss the issue. A second meeting was scheduled at your convenience during your regular work shift and you again chose not to attend. This constitutes wilful insubordination and shows your general disrespect for supervision. I would simply like to point out for your information that should you fail to comply with District policies and procedures in the future, disciplinary action will be sought. I trust I can count on your cooperation in the future. On July 13, 1978, Geoffrey Sackett complained by letter to the District that his grievance filed over the reprimand was not being processed, but he received no response. The District's Classified Employee Union Activity Rules As a direct result of the April 21, 1978 episode described above, the District prepared new rules applicable only to classified employee organizational activity. On May 11, 1978, Superintendent John Grasham sent the following memo, prepared by Director of Personnel David Pia: BACKGROUND Attached the Board will find Rules for Classified Employee Union Activity. After an altercation which took place between a supervisor and a member of a labor organization which resulted in a threat of violence and physical contact, it was determined that a set of procedures needed to be established in order to regulate classified union activity within the District. These rules for procedure have been reviewed and approved by the 16
Board Personnel Committee and the Marin County Counsel. RECOMMENDATION It is the recommendation of the Superintendent that the Board of Trustees adopt the attached Rules for Classified Employee Union Activity to be in effect until an exclusive bargaining agent is elected for the classified units as determined by the Public Employees Labor Relations Board (PERB). The rules which were subsequently approved by the board of trustees on May 17, 1978, provided in part that: Recruiting contact shall not be made with employees while engaged in District work. However, organizational representatives may meet on District property with employees who are off duty, limited to before or after work day or lunch hours. The employees on coffee or rest breaks are on paid status and such time is included as duty time.6 The rules also provided for the identification of organizers, restricted the distribution of literature, and limited the posting of notices and the use of District facilities. 6. No evidence was introduced which would tend to show that employees actually worked during their breaks. 17
Within a few weeks of the promulgation of these rules, the PERB issued its unit determination decision (Marin Community College District (6/26/78) PERB Decision No. 55), establishing three classified employee units, including the skilled trades and operations unit which is the focus of this decision.? The Termination of Johnny Pace Johnny Pace, as noted above, was an employee of long standing with the District. He was clearly identified as an activist in Organizational matters by District management and supervisors, as well as by classified employees. Pace had taken a six months leave of absence (plus vacation time) from May of 1977 through December of 1977. Just prior to this time, Pace began to seek medical assistance at Kaiser Hospital. The symptom which had caused him to see a doctor was chest pain. Pace felt it might be a heart problem but the physician he saw told him it was stress and recommended that Pace find a way of alleviating tension. At that point Pace himself decided to take a leave of absence at his own expense. Pace said Prahm was "jovial" about granting the leave when Pace approached him and that "the word was around the campus within an hour." Pace's request was approved not only by Prahm, but also by David Pia, by the 7. Notice is taken of PERB case file No. SF-R-14B, the representation case which culminated in Marin Community College District, supra. 18
college president and the board of trustees. At the hearing Pace described his motivation in seeking the leave: I suppose it was just a combination of things, being a long-term employee, and what I felt to be fairly respected in the college community. I knew my work, I felt competent, and then to be abused by not being allowed any overtime, laughed at by employees that would see me working out of my job description, moving furniture and packing -- digging post holes, and you name it, and generally looked down upon and given all of the menial tasks, it was too much to bear, so I felt getting away would do me some good and maybe the situation would change in the meantime. Pace returned from his leave and had the conversation with Prahm described earlier where he indicated he hoped that their relationship would improve because the adversarial aspect had been removed. But Pace said he was told by at least five other employees, whom he identified by name, that Prahm was out to get him. One of these persons was the campus chief of police. The episode of April 21st followed. Pace received a verbal reprimand and three written reprimands. The others did not. Although both Pace and Garcia refused to attend two meetings with Ole Prahm without the presence of Geoffrey Sackett, only Pace was reprimanded. Only Pace was threatened with discharge for insubordination. Pace returned to Kaiser Hospital and began seeing Dr. Joseph Engelman. Dr. Engelman's treatment of Pace began on May 4, 1978 during the pendency of the April 21st related 19
grievance. Dr. Engelman testified at the hearing and was a credible expert witness. On May 4th, he examined Pace and found him to be "somewhat striking in his appearance, looking quite physically anxious." Pace told Dr. Engelman then that over the last couple of weeks he felt tense and nervous, that his appetite had decreased, that he was having muscle aches and pains, and that he was fatigued and had poor concentration. Dr. Engelman went on to describe Pace's responses to his questions about the basis for these symptoms, Pace indicating that he'd been on the job for 15 years, and that there had been a change in supervisors, and that then things started getting difficult for him. Then the following exchange occurred: Q. [By Mr. Hudak] Okay. Does that pretty well summarize what he said about the job? Was there anything else of any significance that you can recall that he said about the job? A. [By Dr. Engelman] Yeah. He spoke about his union activities. Q. What did he say about that? A. That he had been involved in either union organizing or furthering the goals of the union. I can't recall specifically, but he felt like that there was -- some of that harassment was secondary to his involvement. Q. Did he tell you what kind of harassment he was suffering at work? A. Yes, he did, and I can't recall specific details. 20
Dr. Engelman diagnosed Pace's condition as extreme anxiety and depressed behavior. Dr. Engelman indicated that his approach to the treatment of cases like Pace's, which he described as "more extreme than the usual", was to attempt where possible to relieve the underlying pressure rather than treat the effects of the tension with medication. Apparently, Engelman's decision to withhold drugs was not made because he felt that Pace's symptoms were trivial. He noted that Kaiser doctors are allotted between seven and ten minutes per patient but that he spent thirty minutes with Pace because "this man was in a pretty bad state." Dr. Engelman recommended that Pace remain away from his job for a few days. Pace remained away from work the remainder of that day, returning on May 10th. There was no evidence to indicate that he informed the District abopt the reason for his absence before his return, nor is there evidence that the District expected him to do so. Upon his return he completed an absence form which had been placed in his box and attached the treatment and diagnosis verification form provided to him by Kaiser Hospital on May 4th. There was no evidence presented to indicate that the sick leave procedure Pace followed in this instance was criticized in any way. Dr. Engelman saw Pace at least monthly from May until September 1978. He also had some telephone contact with Pace during this time. 21
Pace took a two week vacation at the end of June, 1978 and was scheduled to return to work on July 17, 1978. On that date, he arrived at work and went to see Mike Hughes, his supervisor. Pace told Hughes that he was sick, that he was going to see a doctor and that he did not know when he would be returning. At that time, Pace had approximately three months of sick leave accumulated. Hughes said something to the effect that he would see Pace tomorrow, but Pace responded by saying that he was not sure about that. Pace saw Dr. Engelman that morning. The doctor strongly urged him to again stop working for a while, feeling that Pace's symptoms were work related. Pace returned home and typed a letter to David Pia, the director of personnel for the District. He hand-delivered copies of the letter that same day to the offices of the District superintendent, the campus president, the affirmative action officer, the president of the District's board of trustees, as well as Mr. Pia. The text of that letter reads as follows: Due to pressure created as a result of discrimination by Ole Prahm and his subordinates, I am compelled to stay away from the Campus temporarily because such pressure is causing serious damage to my health and a hardship to my family. Sincerely yours, Johnny B. Pace, Sr. Sick leave payments to Pace commenced immediately, paying him from July 17th. 22
Pace, still under Dr. Engelman's care, stayed home for the next several months. A doctor's certificate prepared by Dr. Engelman on August 2, 1978 includes the following notation under the heading of comments on findings: "Depressed, tearful affect and agitated." By tearful affect, the doctor testified that he meant that Pace was crying. He further testified that as of August 2, Pace was "disabled from performing the duties of his work." His diagnosis was "situational anxiety and depression." By situational anxiety, he indicated that he meant that the anxiety he observed was related to a particular situation as opposed to general anxiety, that is anxiety having no specific cause. Dr. Engelman testified that Johnny Pace would be ready, in his opinion, to return to work as a carpenter in September of 1978, but not to return to the specific work environment which had generated the anxiety in the first place. A form was placed in Pace's mail box at the college during his absence, to be used in certifying that he had taken sick leave. The District policy governing sick leave (section 3085) states: All employees shall submit absence reports in order to receive payment for days absent. Classified employees absent shall notify theirsupervisor. It shall be the responsibility ofthe supervisor to report absences monthly on forms provided by the Business Office. Pace, of course, did not pick up the form from his box since he was not at work. As far as submitting an absence 23
report in order to qualify for sick pay, Pace typed his letter to Pia, with multiple copies sent, and was receiving sick pay. Both Pace and Garcia testified that the sick leave procedure followed by Pace in this instance conformed to the practice commonly followed in the District up until then. District witnesses contended otherwise, but no firm evidence was presented by them to substantiate their claim. In fact, the forms introduced into evidence support Pace's and Garcia's view. Moreover, the one previous episode involving sick leave procedure noted above (the absence of May 4 through May 9) strongly suggests that either Pace's and Garcia's interpretation is correct or that Pace was justified in relying on the acceptability of his previously uncriticized absence reporting procedure. Thus, Pace's and Garcia's testimony on this matter is credited. On July 20, 1978, Ole Prahm received a copy of Pace's letter to David Pia (indicating he must stay away from campus due to discrimination by Prahm and his subordinates.) Prahm did not show this copy of the Pace letter to Mike Hughes.a On August 1, 1978, Prahm wrote to the District's classified personnel analyst, Mr. Robert Hughes, as follows: 8. Hughes testified that this was the only instance he couldremember where Prahm had not shared correspondence of this sort with him. Hughes was plainly upset by Prahm's behavior. 24
I would like to request in accordance with Marin Community College District Policies and Procedures manual section 3085 that Johnnie [sic] Pace be removed from the District payroll as a result of not complying with notification of his immediate supervisor as to an impending absence. Johnnie [sic] Pace was scheduled for vacation during the period of June 30th, 1978 until July 14, 1978 and was to return on Monday July 17, 1978 to report for work at 7:00 a.m. Johnnie [sic] reported at approximately 7:00 a.m. on July 17, 1978 to Mike Hughes and informed him that he had a doctors [sic] appointment that morning. Neither Mike Hughes, Rita Meyer nor I have heard from Johnnie [sic] Pace since that day as of the above date of writing. I received a copy of a letter addressed to Dave Pia from Johnnie [sic] Pace on Thursday July 20, 1978 which stated that he was compelled to stay away from campus as a result of alleged discrimination by Ole Prahm and his subordinates. I was not copied on this letter nor was Johnnie's [sic] direct supervisor Mike Hughes and this indirect method of notification does not qualify under section 3085 Absence reporting of the Marin Community College District Policies and Procedures and as such has been absent without leave since July 17, 1978. Please make the necessary changes to the personnel action form to reflect this absence. On August 1 or August 2, 1978, the District processed a personnel action form to terminate Pace's salary and fringe benefit contribution by reason of absence without official leave beginning July 17, 1978. Pace was sent a notice on August 2, 1978 that "written information of a derogatory nature will be placed in your employee file" 10 days following the date of the notice, referring to an attached departmental report of unauthorized absence and to the personnel action form to effect his 25
separation from the active payroll and from District sponsored benefit programs. That same day, Dr. Engelman filled out another doctor's certificate. The form indicated that Pace had been his patient since May 4, 1978, had become disabled on June 29, 1978, and that the approximate date Pace's disability should end sufficiently to permit his return was expected to be September 1, 1978. The District claims that it never received this form from Kaiser Hospital. However, on August 4, 1978, a notice was sent from the Employment Development Department of the State of California to the District, and received by the District, indicating that Pace had filed a claim for disability insurance benefits. (The District returned that form on August 15, denying that there was a valid claim to their knowledge, indicating that though Pace had been on unauthorized absence from July 17, he would be compensated in the form of sick leave, vacation or other type of payment "if claimant immediately returns to work." This is taken to be an affirmation that Pace was being compensated for his absence, in the District's present contemplation, and that one available form of compensation remained sick leave, i.e., that Pace had not legally precluded this option as of August 15.) On August 7, 1978, Mike Hughes sent Ole Prahm a memorandum noting that he had not heard from Pace since July 17, that Hughes had a great deal of carpentry work scheduled for him, that this work was scheduled to be 26
accomplished before school opened, that there was a shortage of carpentry staff and that this had placed a serious burden on Hughes' ability to meet the requirements of the maintenance department. Hughes indicated that he had "patiently awaited a call or some notification from Johnny for the past three weeks, and I have heard absolutely nothing." Hughes further stated that he was in desperate need of carpentry assistance, and made the following request: "Would you please make some determination as to whether Johnny will be returning to work and when, or find a replacement for him?" That same day, Prahm wrote to Pia, referring to the above letter from Mike Hughes and requesting Pia to "take steps to permanently remove Johnny Pace from the payroll and process steps to replace the vacant carpenter's position." This memorandum stated that the maintenance department was unable to fulfill its commitments as a result of Pace's absence and needed a carpenter as soon as possible. Geoffrey Sackett wrote to David Pia on August 10, 1978, as follows: Re: Grievance filed on behalf of Jonnie [sic] Pace & Nick Garcia Dear Mr. Pia, I have requested that the grievance cited above proceed to the next step as outlined in the Policies for Classified Personnel. To date this has not been arranged and I feel that the College is neglecting to proceed in good faith. Mr. Pace has informed me that he is unable to continue working under the tension and harassment presently a result of Mr. Prahm's surveillance. 27
Mr. Pace has informed the Personnel Office of his need for a Leave of Absence confirmed by his physician. If I receive no indication of the College's desire to proceed with the grievance procedure in this matter I shall request our attorneys to proceed with an Unfair Labor Practice before thePublic Employees' [sic] Relations Board. Sackett received no response to his letter. On August 23, 1978, Mike Hughes submitted a report to the District stating that Pace had been absent from July 17, 1978 and noting the type of absence as "AWOL". On August 25, 1978, Chancellor David M. Sims signed charges for Pace's dismissal from employment. The charges set forth the causes for dismissal as: Neglect of duty, namely, unauthorized absence; willful violation of rules and regulations of the District, namely, purposeful and wanton disregard of Section 3085 of District policies and procedures regarding submission of absence reports and notification of supervisor when absent. The charges also contained details with respect to the factual basis for the charges. The charges further stated that on August 16, 1978, Mr. Irwin Diamond, the College of Marin president, concurred in and approved the dismissal recommendation. The charges were sent to Pace about August 25, 1978. The accompanying letter notified Pace that he could demand a hearing in writing by completing and signing the attached demand for a hearing and filing it with the chancellor within five days from the date of service of the notice. The letter further informed Pace that 28
if he did not request a hearing within the specified time period, "the order of the president shall be final" and he would have waived his opportunity for a hearing. The letter also informed Pace that he could be represented by counsel. President Diamond testified that before he concurred in the recommendation to fire an employee of 15 years who had such a good work record that it was important to him to investigate the matter. He wanted to assure himself that Pace understood the situation and how he was likely to be affected. He made two phone calls to Johnny Pace. Neither time was the phone answered. He did not pursue the matter further. Diamond said he was unaware that Pace was having any medical problems. (This despite the fact that a copy of Pace's July 17 letter to Pia saying he was staying away from the campus due to medical reasons occasioned by Prahm's harassment had been hand-delivered to him and he had discussed Pace's absence two or three times with Pia. No probe was initiated by Diamond regarding this allegation of harassment.) Pace received the charge and letter and the earlier August 2 "AWOL Notice" but did not request a hearing or otherwise contact the District. He turned neither to Geoffrey Sackett nor to Nick Garcia. (Sackett didn't learn of Pace's fate until the following month.) Pace explained his reaction to the charges thusly: 29
I read the document, and it caused me mental distress, and I began to get ill again, and my wife and I talked about it, and I was in no condition to appear to contest it. My doctor had gave me [sic] strict orders not to get all upset, and to try to not think about the job for the time being. In a memorandum dated September 1, 1978, Chancellor Sims transmitted to the board of trustees copies of the charges for dismissal. The memorandum noted Pace's absence from work from July 17 to the present and stated that his immediate supervisor and the director of facilities management had no contact from him. The memorandum further states that the college president had tried on at least two occasions to reach Pace by telephone, but all attempts had been without success. The memorandum also referred to an attached copy of Pace's July 17, 1978 letter to the director of personnel and stated that "the accusations contained in the letter have not been substantiated." The memorandum further stated: "the loss of work sustained by the District, the inordinate strain placed on other employees, and the pattern of behavior of Mr. Pace add weight to the charges filed." The memorandum recommended that the charges filed by the president be considered; that Pace be afforded a hearing if one were demanded; that in the absence of a demand for hearing the board affirm the charges; and that Pace be dismissed as a regular member of the classified service. On September 6, 1978, at a regular board meeting, the board of trustees approved the recommendation to dismiss Pace. 30
Nick Garcia attended. There was no discussion. On September 7, Robert Hughes, the District's classified personnel analyst, notified Pace in writing of this action and transmitted Public Employment Retirement System (PERS) Form No. 167, which had to be completed in order to vest Pace's contributions with the retirement system or withdraw his funds. The letter stated that Pace's final check would be withheld until he had returned any district property currently in his possession, including any and all keys. At the time of his dismissal, Pace was still receiving sick pay. The District claims that this was due to a clerical error. On September 8, 1978, the District processed a personnel action form to terminate Pace's employment. The form noted that his sick leave balance was 523.5 hours and his vacation balance was 8 hours. On September 12, 1978, Pace signed and returned the PERS form, checking the box indicating that he had permanently separated from employment and desired a refund of his accumulated contributions. It was about this time that Geoffrey Sackett inadvertently learned of the termination of Johnny Pace while attending an election meeting with District personnel at the PERB office in San Francisco. Sackett investigated and, in October of 1978, asked that Pace be returned to work, that his time off be treated as a leave of absence, and that all references to terminations and abandoning the job be removed 31
from his file. No action was taken on this request. The charge in the instant case (SF-CE-316) was then filed. On October 6, 1978, the District controller wrote to Pace stating that although he had been absent without leave beginning July 17, 1978, a full paycheck was issued for July resulting in an overpayment of $503.08; that a paycheck was issued for August, resulting in an overpayment of $1,077.39; that these overpayments were offset by 8 hours of earned vacation and an erroneous deduction for Kaiser health coverage; and that the net overpayment was $1,475.15. The letter requested that Pace "please make a check payable to the Marin Community College District for this amount." The letter also referred to an enclosed PERS statement of his contributions and stated that the submission of his report of separation form to withdraw his PERS contributions would be delayed pending the receipt of his repayment to the District. Pace gave the District a check in the correct amount, filled out the necessary forms and withdrew his PERS contributions. Pace's medical condition improved and before the end of the year he had begun to work part time jobs where he could find them. (Dr. Engelman had previously predicted that Pace would be able to resume work about September 1, though not under the same supervision.) As noted earlier, Ole Prahm left District employment on March 31, 1979. Leo Dunne left the District in June of 1978. At the hearing, Pace testified that he wished to return to work and that he felt he was physically 32
and emotionally able to do so at that time. Mike Hughes noted that, despite his pleas, his department has not replaced Johnny Pace, that now two full time equivalent carpenters are working where three worked before. CREDIBILITY DETERMINATIONS The testimony of Pace and that of Prahm differ in many respects, only some of them material. Moreover, Pace's version of what happened in the yard differs from that of Dunne. Each man's testimony was supported by other witnesses in certain respects, giving each at least a superficial aura of credibility. Having personally and quite carefully observed the testimony of each of the witnesses, the hearing officer credits the charging party's version in every crucial aspect. There were numerous minor discrepancies between the two sides that could easily be ascribed to good faith differences of perception of the same reality. Yet, where crucial inconsistencies existed, the hearing officer found the witnesses for SEIU to be more believable. The Organization's version had a ring of truth that followed from its consistency and inherent probability. Direct evidence of anti-organizational animus is 33
seldom available. The self-serving declarations of neutrality of witnesses such as Prahm and Dunne can hardly be considered probative. 9 Hence, most of this testimony is disregarded here. Prahm's testimony as to facts was, at times, contradictory and evasive, as for example, where he claimed that he discussed with Sackett the time for setting a meeting and then moments later admitted that he had not done so, with no apparent realization that his testimony had changed. Prahm had expressed surprise at the hearing, saying he learned that Pace had a job stress related medical condition for the first time there, yet he had plainly been aware of Pace's medical situation before. (Certainly he had read Pace's memo of July 17, 1978, if nothing else.) Later, Prahm denied having seen Pace's memo until confronted with a copy of his own memo to Pia which said, at one point, "I received a copy of a letter addressed to David Pia from Johnny Pace ... " He then reversed his field without further explanation. 9. It is a well-established rule that the NLRB is free to draw inferences from all the circumstances, and need not accept self-serving declarations of intent even if they are uncontradicted. (NLRB v. Pacific Grinding Wheel Co. (9th Cir. 1978) 572 F.2d 1343; Shattuck Denn Mining Corp. v. NLRB (9th Civ. 1966), 362 F.2d 466; NLRB v. warren L. Rose Cast'"Ings, Inc. (9th Cir. 1978) 587 F.2d 1005, 1008; Royal Packing v. ALRB et al. (4th Cir. 2/4/80) 4 Civ. No. 18956.} It is appropriate tfiat this rule be applied here. 34
What came through in Prahm's testimony was that it amounted to a self-serving effort to downplay his negative feelings toward Pace and his negative views regarding the efficacy of organizational activity. Ole Prahm's distaste for Johnny Pace is reflected throughout the record. Three employees were involved in the April 21st episode, only Pace was reprimanded. Two refused to attend Prahm's meeting, only Pace was reprimanded. Pace was not only reprimanded, he was reprimanded three times. Yet, Prahm insisted that his relationship with Pace was positive. Dunne's testimony was also less credible than that of Pace, Garcia and Sackett. Pace's and Garcia's version of what went on in the maintenance yard was more plausible and consistent. The testimony of Mike Hughes supported their version in certain key aspects. This, in turn, leads the hearing officer to believe Garcia's statements that Dunne told him only a week before the April 21st episode that he "shouldn't be relying on Johnny so much, or on the union," and that one of these days Garcia would get into such trouble that "Johnny or the union are not going to be able to help you." Such statements are consistent with other findings, further undercutting the reliability of Dunne as a witness. Other District witnesses had enough minor discrepancies in their testimony as to cast some doubt on their truthfulness as well. 35
On the other hand, the testimony of Pace, Garcia and the other witnesses for the charging party was shaken in no materially important aspect and in no way that would call into question their veracity or their perceptiveness. Pace himself was a particularly believable witness. His sincerity and his responsiveness, especially during cross-examination, marked him ',as quite different from Prahm and Dunne, particularly. His demeanor throughout the hearing conveyed a seriousness and a sense of personal integrity that were unmistakable 10 . His testimony was fully supported by that of Dr. Engelman, who was neither a party to this case nor the agent of a party. Thus, the version of the facts related by the witnesses for SEIU has been credited in large measure and is incorporated into the findings of fact above. What remains is to determine whether the facts, as found, constitute unfair practices under the EERA. CONCLUSIONS OF LAW 1. Did the District Violate the EERA by Enactment or Enforcement of its Rules for Classified Employee Union Activity? The Organization contends that the promulgation of the Classified Employee Union Activity Rules discussed above 10. Pace did testify that he held membership in the facultysenate and then later disavowed this testimony when cross-examined. The hearing officer draws no conclusion from this inconsistency. 36
constituted a violation of section 3543.5(a), (b) and (d) of the Act. a. The Presumptive Invalidity of the Rules An organization has the right of reasonable access to areas in which employees work and the right to use District bulletin boards, mail boxes and facilities for meetings and announcements. Richmond Federation of Teachers v. Richmond Unified School District and Simi Educators Association CTA/NEA v. Simi Valley Unified School District (8/1/79) PERB Decision No. 99. In Richmond the Public Employment Relations Board (hereafter Board) discussed the limits of "reasonable regulation." There, the Board noted that "effective and non-disruptive organizational communications are an important aspect of employee rights 'to form, join, and participate' in employee groups (section 3543), by serving as necessary links between employees and their representatives." (Richmond, supra, p. 15.) The Board went on to indicate that employee organizational communication should be "relatively unhampered." The Board in Richmond then turned to an analysis of Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793 [16 LRRM 11 620] where the Supreme Court affirmed a finding of the NLRB that an employer's rule prohibiting union solicitation on 11. PERB may use federal labor law precedent where it is applicable to public sector labor law issues. (SweetwaterUnion High School District (5/23/76) EERB Decision No. 4. (PERB was previously known as the Educational Employment Relations Board, or EERB). See also Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 611.) 37
company premises during the employee's own time was presumptively invalid, stating: ... time outside working hours, whether beforeor after work, or during luncheon or rest periods, is an employee's time to use as he wishes without unreasonable restraint, although the employee is on company property. It is therefore not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property. Such a rule must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline. The Board, relying on Republic and Los Angeles Teachers Union v. Los Angeles County Board of Education (1969) 71 Cal.2d 551, concluded that: "school employer regulation under section3543.l(b) should be narrowly drawn to cover time, place and manner of the activity, without impinging on content unless it presents a substantial threat to peaceful school operations." Under the cases cited above, the District's imposition of a broad non-solicitation ule as the keystone to its Classified Employee Union Activity Rules, covering even employee coffee and rest breaks, makes them presumptively invalid. Given the Republic Aviation test adopted by the Board, the altercation of April 21, 1978, during which no blows were struck (and at the time of adoption of the rule the cause of which was an unresolved question to be the subject of two pending grievances) can hardly be considered as ample justification for the immediate imposition of such a harsh 38
rule. An isolated incident involving but a few people and subject to serious question as to whether it was an imposition on work time and whether or not it was provoked is an inadequate basis for the establishment of such a restrictive rule. See American Cast Iron Pipe Co. (8th Cir. 1979) 600 F.2d 132 [101 LRRM 2522] where eight serious disciplinary problems per year were held to be "fairly minor" and an inadequate ground for a similarly restrictive rule. The circumstances presented here are hardly so grevious as to warrant so apparently retaliatory a response. Certainly the rules fail to satisfy the test of being narrowly drawn as to time and place. The District has failed to show by a preponderence of evidence that the rules were necessary to meet a substantial threat to peaceful school operations. Thus, the presumption remains unrebutted and the rules considered as a whole are found invalid. (This does not mean that the District could not adopt any rules of this sort, but only that the rules as drawn are invalid.) b. The Mootness of the Rules The District argues that since the rules were governed by the superintendent's memorandum which stated that they would be in effect "until an exclusive bargaining agent is elected for the classified units as determined by the Public Employment Relations Board," the rules expired when the Organization became the exclusive representative. They point out that the rules have not been enforced since that time. 39
However, as noted by the Board in Amador Valley Secondary Educators Association v. Amador Valley Joint Union High School District (10/2/78) PERB Decision No. 74, mere discontinuance of wrongful conduct does not ordinarily end the underlying controversy absent evidence that the party acting wrongfully has lost its power to renew its conduct. Since the District neither rescinded nor disavowed its rules, but has admitted only the current discontinuance of active enforcement, it is appropriate, under Amador Valley, supra, that the validity of the rules be considered here. See also Paceco v. NLRB (5th Cir. 1979) 601 F.2d 180 [102 LRRM 2146] and NLRB v. National Nursing Home Consultants (6th Cir. 1976) 572 F.2d 143 [98 LRRM 2516]" c. The Nature of the Violation The Board articulated the test to be employed in section 3543.S(a) cases in Carlsbad Unified School District (1/30/79) PERB Decision No. 89. The test was employed in Richmond, supra. There, the Board found that denial of access to the employer's internal mail system caused "some harm" to employee rights under the Act. The PERB then held that, where "some harm" to employee rights has been found, absent the respondent's showing its conduct was a result of operational necessity or circumstances beyond its control, the conduct constitutes interference, restraint or coercion in violation of section 3543.S(a) of the EERA. 40
Here, the absence of a successful showing that the District's Union Activity Rules were narrowly tailored to meet a substantial threat to peaceful school operations has already been noted. Circumstances which would justify the infringements imposed, for example, on employee time have simply not been demonstrated. The District has cited no authority, and none has been found by the hearing officer, which justifies such conduct which plainly causes, and has caused, "some" harm. See also Essex International, Inc. (1974) 211 NLRB No. 112 [86 LRRM 1411] and Republic Aviation Corp. v. NLRB, supra, 324 U.S. 793. Moreover, a violation can be found under the final prong of the Carlsbad test quite independent of any finding of harm. The final prong of the test reads as follows: Irrespective of the foregoing, a charge will be sustained where it is shown that the employer would not have engaged in the complained-of conduct but for an unlawful motivation, purpose or intent. The convergence of the Rules, the April 21st episode and its aftermath, the explicit statement in the superintendent's memo and the anticipated PERB unit determination decision for classified employees create an overwhelming inference of unlawful motivation. The rule simply would not have been enacted but for the employees actively seeking to organize. The District violated section 3543.S(a) by responding as it did. 41
By the same conduct the District violated section 3543.5(b) 12 in that they promulgated rules which, on their face, restricted only classified employee organizations (i.e., classified organizations which are not exclusive representatives) and restricted them, without adequate justification, from otherwise protected activity, as noted above. Republic Aviation Corp. v. NLRB, supra. No violation of section 3543.S(d) was argued in SEIU's brief. No violation is found based on the record. Having found the rules themselves unlawful, it is, of course, unnecessary to resolve the question of their application to find a violation. However, since their application may reflect on the District's attitudes and motives, it is noted that the rules were plainly selectively applied (affecting only classified employee organizations), and were promulgated at a time when a membership drive had started and an election was but a few months away (indeed, the rules were designed to expire as soon as an exclusive representative was selected). 2. Did the District Violate Section 3543.S(a) by Reprimanding and then Discharging Johnny Pace? 12. Section 3543.S(b) makes it an unfair practice to deny to employee organizations rights guaranteed to them by the EERA. 42
The Oceanside Carlsbad test noted earlier is controlling also in this context. Once again, the charge of a section 3543.S(a) violation will be sustained: ... where it is shown that the employer would not have engaged in the complained of conduct but for an unlawful motivation, purpose or intent. An unlawful intent on the part of a supervisory employee can be attributed to the District. Prahm was, without question, a supervisory employee.13 The gravamen of this aspect of SEIU's charge is that the District, through Prahm and others, altered working conditions, making them so difficult and unpleasant as to cause Pace to be unable to work thereunder and that these changes were motivated by Pace's organizational activity. These allegations add another dimension to the charge of discrimination. In cases where an employee has left work, it is important to consider the vulnerability any employer would have to specious claims by disgruntled or disaffected former employees if claims were entertained lightly. Accordingly, the NLRB and the courts, when considering allegations of what has come to be called a "constructive discharge" have imposed 13. There can be no doubt that Prahm's conduct is attributableto the District in this instance. See Antelope Valley Community College District (7/18/79) PERB Decision No. 97. 43
rather stringent tests. To warrant a finding that a constructive discharge has taken place, SEIU will be required to show that Pace's working conditions were altered in such a substantial fashion that a reasonable person could not be expected to remain at that employment, that these changes were a result of Pace's protected activites, and that the employer's motive was improper. See Federal Collectors (1973) 201 NLRB 944 [82 LRRM 1686], citing Montgomery Ward and Co. (1966) 160 NLRB 1729, 1742 [63 LRRM 1249] enf'd in part (8th Cir. 1967) 385 F.2d 760 [66 LRRM 2689]. a. Changes in working Conditions Ole Prahm began altering Johnny Pace's working conditions almost immediately upon Prahm's being employed by the District, as demonstrated by the evidence. The District lodged a standing objection at the time of the hearing to the introduction of any evidence having to do with Pace's employment relationship more than six months prior to the filing of charges in this case. The objections were overruled, despite the wording of section 3541 which states: [T]he board shall not ... issue a complaint inrespect of any charge based upon an alleged unfair practice occurring more than six months prior to the filing of the charge. In construing the analogous section of the Labor Management Relations Act (hereafter LMRA), section l0(b) [29 u.s.c. sec. 160(b)], the United States Supreme Court held in Local Lodge 1424 v. NLRB (1960) 362 U.S. 411 [45 LRRM 3212] 44
that in certain circumstances section l0(b) is to be considered a rule of evidence as well as a statute of limitations. The Court held that events prior to the six month limit are to be allowed in, inter alia, when they explicate present actions that may themselves be unfair practices, saying: [W]here occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices ..• earlier events may be used to shed light on the true character of matters occurring within the limitations period .... (Local Lodge 1424 v. NLRB, supra, 45 LRRM at p. 3214.) On the basis of Local Lodge it is clear that all admitted evidence can be considered. The District's renewed argument is rejected. When the evidence is considered as a whole it is apparent that Pace's working conditions were altered by Prahm's conduct which was supported, if not 14 endorsed, by the District. b. Substantiality of the Change In Sterling Corset Co. (1938) 9 NLRB 858 [3 LRRM 344] the National Labor Relations Board (hereafter NLRB) found that working conditions could be made intolerable by incremental changes. Accord, Newberry Lumber and Chemical Co. (1939) 17 NLRB 795, 808 [5 LRRM 342] enfd. as modified (6th Cir¢ 1941) 123 14. See also Communication Workers v. NLRB (2d Cir. 1975) 520 F.2d 411 [89 LRRM 3028] cert den. 423 U:S:-1051 [91 LRRM 2099}; NLRB v. Longshoremen, Local 30 (9th Cir. 1977) 549 F.2d 698 [94 LRRM 3072] ~ Beckett Aviation Corp. (1975) 218 NLRB 238 [89 LRRM 1341]. 45
F.2d 831 [9 LRRM 479]~ Reliance Mfg. Co. (1945} 60 NLRB 946, 951-2 [16 LRRM 13]. Johnny Pace made repeated efforts to improve relations between himself and Prahm. The decision to take a six month leave of absence was certainly not something done without serious thought and personal sacrifice. Pace's decision to withdraw from his position within the Organization in a vain effort to produce harmony cannot be ignored. The orchestrated harassment which began in April through the offices of Leo Dunne, Ole Prahm's supervisor of systems, following as it did the exchange of olive branches in January, plainly exacerbated the level of Pace's tension and increased the feelings of mistrust and futility. Pace was further reprimanded for demanding Organizational representation of his own choosing in dealing with Prahm and Dunne's charges 15 and was confronted for the first time with a supervisor who "stonewalled" him at the meeting with the affirmative action officer, both of which events, whether or not otherwise unlawful, were evidently calculated to isolate Pace and break his resistance further. It is concluded that this chain of events revealed to Pace for the first time the extent of Prahm's enmity and intractability and constituted a substantial change in working conditions, which served to verify the rumor that Prahm was out to get 15. See Robinson v. State Personnel Board (1979) 97 Cal.App.3d 994 [159 Cal. Rptr. 222]. See also NLRB v. Weingarten (1975) 420 U.S. 251 [88 LRRM 2689]. 46
him. The fact that the grievance filed by Pace was not processed from step one to step two from May 17, 1978 through Pace's departure exactly two months later could only add to Pace's frustration. Clearly, Pace's relationship with Prahm and the District had reached a new low. c. The Reasonableness of Pace's Departure SEIU clearly demonstrated at the hearing that Pace's departure was based on competent medical advice. It was shown that Pace resisted the recommendation to leave and did not act impulsively when he finally conceded. Pace's seeking medical advice and the doctor's diagnosis are strong evidence in his favor. Dodson's Market, Inc. (1971) 194 NLRB 192 [78 LRRM 1628] enfd. (9th Cir. J973) 553 F.2d 617 [83 LRRM 2987]. From the date of his departure to the date of his discharge, the District did nothing to address the conditions which precipitated his leaving, though they were unquestionably on notice that Pace considered himself to be ill as a result of harassment and discrimination. Whatever perfunctory efforts to reinstate him were made by the District created no obligation on Pace's part because they failed to address the conditions which had led to his justified departure. The status quo ante 47
remained. Curtis Mfg. Co. (1971) 189 NLRB 192 [77 LRRM 1220] ~ Donahue Beverages (1972) 199 NLRB 581, 586 [81 LRRM 1580] .16 Geoffrey Sackett's uncontroverted and credited testimony regarding his unanswered October demand that Pace be restored to his position persuasively demonstrates that any proffered reinstatement would be on the District's own terms or would only be acceptable without Organizational intervention. In sum, the District's resolve to coerce Pace persisted undiminished through the time that the instant charge was filed. The reasonableness of Pace's original action and his continuing nonresponsiveness are amply established. Curtis Mfg. Co., supra, at p. 201. d. Linkage to Protected Activi1:X_ The nexus between Pace's protected activity and his departure is obvious. It is clear from the record that Prahm manipulated Mike Hughes, denying him information about the circumstances of Pace's departure and then using Hughes' resulting distress to provide a "business justification" for replacing Pace. The hostility of Prahm toward Pace's organizational activity is well established from the record. Prahm effectively undermined and frustrated Pace's efforts to secure 16. Compare Jumping Jacks Division, U.S. Shoe (1973) 206 NLRB 88 [84 LRRM 1218] where a union adherent was advised by her doctor to seek a transfer to alleviate aggravation. The employee's departure was held voluntary because the aggravation was not within the employer's power to remove. 48
representation at the disciplinary hearings. In addition, he reprimanded Pace for failure to attend meetings without his representative after having made representation difficult. The District's position that Pace was rightfully discharged for failure to personally notify Mike Hughes of his absence is rejected. The reason given for discharge was but a pretext. The timing of the move against Pace is also telling. The Organization's stalwart was discharged exactly midway between unit determination and the unit election. The signal to other employees which that timing undoubtedly conveyed must be considered as a motive for the District's 17 position. e. Conclusions On the basis of the analysis above, it is concluded that Pace was constructively discharged. Further, under Oceanside Carlsbad, supra, the District failed to adequately rebut the inference that Pace would have been terminated had he not been an organizational activist and an irritant to Ole Prahm for that reason. 17. Regarding the propriety of drawing inferences from thetime of such actions under somewhat different circumstances,see Big "G" Corp. (1976) 223 NLRB 1349 [ 92 LRRM 1127] ; City ofBoston and Michelle McMullin (Mass. MLRC 12/28/78) 5 MLC 1557, 1559; County of Bucks (Penn. PLRB 10/11/79) 10 PPER 10280~ and, Salem County Board for Vocational Education (N. J. PERC 5/23/79) 5 NJPER 10135. 49
Granting, arguendo, that Pace left of his own accord and did not provide proper notice, the District's argument that it was justified in releasing Pace still falls flat. Though the District made reference at the hearing to other classified employee discharges based on absence without leave, it failed to show sufficient similarity of circumstances to warrant an inference of neutrality here. Further, the business justification rationale is doubly unpersuasive since less oppressive alternatives were available, Pace was not quickly replaced, and Pace was paid sick leave up to the time of his actual discharge. In summary, the evidence clearly establishes all of the elements necessary to find that Johnny Pace was constructively discharged on July 17, 1978, and that this act was in violation of section 3543.S(a). REMEDY Section 3541.S(c) of the EERA sets forth the PERB's remedial authority in unfair practice cases. It provides: The board shall have the power to issue a decision and order directing an offending partyto cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter. This section is similar to section lO(c) of the NLRA and, therefore, in fashioning the appropriate relief, cognizance is taken of applicable NLRB precedent. 50
(Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d 608. In the instant case, it is concluded that the Marin Community College District, through its agent Ole Prahm and others, violated section 3543.5(a) of the EERA by harassing, discriminating against, and coercing its employee, Johnny Pace, because of his exercise of his rights under the Act. The remedy set forth for this violation is "designed to restore, so far as possible, the status quo which would have obtained but for the wrongful act." (NLRB v. Rutter-Rex Mfg. Co., (1969) 396 U.S. 258 [24 L.Ed.2d 405, 72 LRRM 2881] reh. den. 397 U.S. 929 [25 L.Ed.2d 109] .) Therefore, to fully compensate Pace and to place him in the position he would have been in but for the District's actions, it is appropriate to order that he be reinstated, on request, as a carpenter at Marin Community College. This relief is consistent with remedial orders of other state public employment relations boards and commissions involving reinstatement of wrongfully discharged or transferred public employees. (City of Boston (MA 1978) 5 MLC 1558; City of Elizabeth (NJ 1979) 5 NJPER 10048: Freeport Union Free School District (NY 1979) 12 PERB 3038; City of Green Bay Board of Education v. Wisconsin Employment Relations Commission (1976) 92 LRRM 3170.) Pace is also entitled to a back pay award which will compensate him that amount he would have earned had he been employed by the District in his position as a carpenter, including all additional benefits of employment, and without 51
prejudice to his seniority or other rights and privileges. (F. w. Woolworth Co. (1950) 90 NLRB 289 [26 LRRM 1185]; NLRB v. Seven-Up Bottling Co. (1953) 344 U.S. 344 [31 LRRM 2237]~ Reeths Puffer School District (MI 1979) MERC LO-1979, Vol. XIV, p. 37; City of Elizabeth, supra.) Consistent with NLRB precedent, this amount should include interest on the award (Isis Plumbing & Heating Co. (1962) 138 NLRB 716 [51 LRRM 1122]) in the amount of 7 percent per annum.18 This amount will be offset by any earnings received by Pace during the period beginning on or about July 17, 1978, the date he was constructively discharged, until such time that the District offers him the position ordered herein. Deduction of Pace's interim earnings is in accordance with NLRB practice. (Big Three Industries (1975) 219 NLRB No. 159 [90 LRRM 1147] .) 18. The California Constitution, article xv, section 1, prescribes a rate of interest at 7 percent per annum. See also Florida Steel Corp. (1977) 231 NLRB No. 117 [96 LRRM 1070]. 52
Having also found that the District violated section 3543.S(a} and (b) by the imposition of an overbroad set of "Union Activity Rules" in a discriminatory manner and in reprisal for protected activity, the Classified Union Activity Rules passed by the board of trustees of the District on May 17, 1978 will be ordered rescinded, effective the date of their enactment, and the board of trustees will be ordered to refrain from infringing on employee or organizational rights "in any like or related manner" in violation of sections 19 3543.S(a} and (b). Finally, it is appropriate that the District be required to post a copy of the attached Order. Posting will provide classified employees with notice that the District has acted in an unlawful manner and is being required to cease and desist from the activity. It effectuates the purposes of the EERA that employees be informed of the resolution of this controversy by means of a posting requirement. Placerville 19. In view of the breadth and extent of the unfair practices committed in these cases, the District will be ordered to cease and desist from "in any like or related manner" infringing on rights protected by the sections of the EERA which were violated. Hickmott Foods (1979) 242 NLRB No. 177 [101 LRRM 1342]. 53
Union School District (9/18/78) PERB Decision No. 69. A posting requirement has been upheld in a California case involving the Agricultural Labor Relations Act, Pandol and Sons v. ALRB (1979) 98 Cal.App.3d 580, 587. Posting orders of the NLRB have been upheld by the United States Supreme Court, NLRB v. Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415]. PROPOSED ORDER Upon the foregoing findings of fact, conclusions of law and the entire record of this case, it is found that the Marin Community College District has violated Government Code section 3543.5(a) and (b). IT IS HEREBY ORDERED that the District and its representatives shall: 1. CEASE AND DESIST FROM: a. In any like or related manner imposing or threatening to impose reprisals on Johnny Pace or other employees, discriminating or threatening to discriminate against Johnny Pace or other employees, or otherwise interfering with, restraining or coercing Johnny Pace or other employees because of their exercise of their right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation in all matters of employer-employee relations. 54
b. In any like or related manner denying to employee organizations rights guaranteed to them by Government Code section 3540 et seq. c. Enforcing the Classified Union Activity Rules passed by the board of trustees of the District on May 17, 1978. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH IS NECESSARY TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: a. Immediately offer to fully reinstate Johnny Pace to his former jobw or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed; b. Make Johnny Pace whole for any loss of pay or other benefit(s) he may have suffered by tendering to him a back pay award which constitutes an amount equal to that which he would have been paid absent his unlawful constructive discharge on July 17, 1978 until the date of the offer of reinstatement, this total amount to be offset by Pace's earnings as a result of other employment during this period, and with payment of interest at 7 percent per annum of the net amount due; 55
c. Post copies of the Notice attached as an appendix hereto at all work locations at the Marin Community College District where notices to employees customarily are placed, immediately upon receipt of the final decision. Such posting shall be maintained for a period of thirty (30) consecutive calendar days. Reasonable steps should be taken to insure that said Notices are not altered, defaced or covered by any other materials; and, d. At the end of the posting period notify the San Francisco Regional Director of the Public Employment Relations Board, in writing, of the action the District has taken to comply with this Order. It is further ORDERED that the Classified Union Activity Rules passed by the board of trustees of the District on May 17, 1978 be rescinded, effective the date of their enactment. It is further ORDERED that the instant charges be dismissed in all other respects. Pursuant to California Administrative Code, title 8, part III, section 32305, this Proposed Decision and Order shall become final on April 11 , 1980 unless a party files a 56
timely statement of exceptions. See California Administrative Code, title 8, part III, section 32300. Such statement of exceptions and supporting brief must be actually received by the Executive Assistant to the Board at the Headquarters Office of the Public Employment Relations Board in Sacramento before the close of business (5:00 p.m.) on April 11 , 1980, in order to be timely filed. See California Administrative Code, title 8, part III, section 32135. Any statement of exceptions and supporting brief must be served, concurrent with its filing, upon each party to this proceeding. Proof of service shall be filed with the Board itself. See California Administative Code, title 8, sections 32300 and 32305, as amended. DATED: March 21, , 1980 --------- ( MICHAZ:17 TONS Hea 1ng Officey- I~~ 57
APPENDIX NOTICE TO CLASSIFIED EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD An Agency of the State of California After a hearing in Unfair Practice Cases No. SF-CE-297, SF-CE-298, and SF-CE-316, Service Employees International Union, Local 250 and Local 400, AFL-CIO v. Marin Community College District, in which both parties had the right to participate, it has been found that the Marin Community College District violated section 3543.S(a) and (b} of the Educational Employment Relations Act (EERA} by harassing, discriminating against, and coercing its employee, Johnny Pace, because of his exercise of his rights under the Act and by imposing an overbroad set of "Union Activity Rules" (dated May 17, 1978) which unlawfully restrict organizational activity. As a result of this conduct, we have been ordered to post this Notice, and we will abide by the following: 1. WE SHALL CEASE AND DESIST FROM: a. In any like or related manner imposing or threatening to impose reprisals on Johnny Pace orother employees, discriminating or threatening todiscriminate against Johnny Pace or other employees, or otherwise interfering with, restraining or coercing Johnny Pace or other employees, because of their exercise of theirright to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation in all matters of employer-employee relations. 58
b. Enforcing
the
Classified
Union
Activity
Rules
passed
by
the
board
of
trustees
of the
District
on
May
17,
1978.
c.
In
any
like
or
related
manner
denying
to
employee
organizations
rights
guaranteed
to
themby
Government
Code
section
3540,
et
seq.
2.
TAKE THE
FOLLOWING
AFFIRMATIVE
ACTION
WHICH
IS
NECESSARY
TO
EFFECTUATE
THE
POLICIES
OF
THE
EDUCATIONAL
EMPLOYMENT
RELATIONS ACT:
a.
Immediately
offer
to
fully
reinstate
Johnny Pace
to his
former
job,
or,
if
the job
no
longer
exists,
to
a
substantially
equivalent
position,
without
prejudice to his
seniority
or
other
rights
and
privileges
previously
enjoyed;
b.
Make
Johnny Pace whole
for
any
loss
of
pay
or
benefit{s)
he may
have
suffered
by
tendering
to
him a
back pay
award which
constitutes
an amount
equal
to that
which he would
have
received absent
his
unlawful
constructive
discharge
on
July
17,
1978
until
the
date of
the
offer
of
reinstatement,
this total
amount
to
be
offset
by
Pace's earnings as
a
result
of other
employment
during
this
period,
and
with
payment
of
interestat
7
percent
per
annum
of
the
net
amount
due.
In
addition,
we
note
that
the
classified
Union
Activity
Rules passed
by
the
District's
board
of
trustees
on
May
17,
1978 have been
rescinded.
Dated
MARIN
COMMUNITY
COLLEGE
DISTRICT
By
-----------------
THIS IS
AN
OFFICIAL NOTICE. IT
MUST REMAIN POSTEDFOR
30 CONSECUTIVE CALENDAR DAYS FROM THE DATE OF
POSTING
AND MUST NOT BE DEFACED, ALTERED OR COVEREDBY ANY
MATERIAL.
591 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 250 and LOCAL 400, AFL-CIO,
Case Nos. SF-CE-297
Charging Party, SF-CE-316
MARIN COMMUNITY COLLEGE DISTRICT, PERB Decision No. 145
Respondent.
)
)
)
)
)
Ve )
)
)
)
November 19, 1980
Appearances: Robert J. Bezemek, Attorney (Van Bourg, Allen,
Weinberg and Roger) for Service Employees International Union,
Local 250 and Local 400, AFL-CIO; Jon A. Hudak, Attorney
(Breon, Galgani & Godino) for Marin Community College District.
Before Gluck, Chairperson; Moore, Member.
DECISION
The Marin Community College District (hereafter District)
has filed exceptions to the attached hearing officer's proposed
decision which holds that the District violated
section 3543.5(a)t of the Educational Employment Relations
lgection 3543.5 provides:
It shall be unlawful for a public school
employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
2
Act
(hereafter
EERA)
by
terminating
its
employee,
Johnny
Pace, because
of
his
union
activities.
The
hearing
officer
also
found
that
the
District
had
violated section
3543.5(a)
and
(b)3
by
adopting
rules
which,
among
other
things,
forbade
access of
classified
employee
organization
representatives to
the
campuses
of the
District
during
coffee
and
rest
breaks. After considering the
entire
record
and
briefs
of the
parties,
the
Board
adopts the hearing
officer's
findings of
fact,
including
his
credibility
determinations,4
and
affirms
his
conclusions of
law
to
the
extent
modified
herein.
discriminate against
employees, or otherwise
to
interfere
with,
restrain,
or coerce
employees because
of
their
exercise
of
rights
guaranteed
by
this
chapter.
. . . . . . . . . . . . . . . . . . . . .
2EERA
is
codified
at
Government Code
section
3540
et
seq. All
statutory
references are to the
Government Code
unless
otherwise noted.
3section
3543.5
provides:
It
shall
be
unlawful for
a
public school
employer
to:
. . . . . . . . . . . . . . . . . . . . .
(b) Deny
to
employee
organizations rightsguaranteed to
them by
this chapter.
. . . . . . . . . . . . . . . . . . . . . . .
4santa Clara Unified School
District
(9/26/79)
PERB
Decision
No. 104.
2
FACTS
I. Background
Johnny Pace had been employed by the District as a
carpenter since 1963 and was considered by his supervisors to
be good at his job. From 1967 through 1976, Pace was very
active in Service Employees International Union (hereafter
SEIU}, having served as a steward during those years. In this
capacity, he participated in negotiations with the District,
represented employees' grievances, attended college-wide
meetings as the employee representative, and recruited on
behalf of the union. Pace's union activities were not
questioned until 1974 when Ole Prahm became supervisor of plant
facilities, a position that placed him two supervisory levels
above Pace.
Throughout the course of their relationship, there were
numerous confrontations between Prahm and Pace centered on the
latter's union activity. In addition to the examples described
in the hearing officer's decision, Pace and Prahm also clashed
over a hiring issue. Pace believed that Prahm had hired an
unqualified employee from his (Prahm's} former place of
employment. He complained first to Prahm, himself, and then to
the SEIU business agent. As with the other controversies
discussed in the hearing officer's decision, this matter was
finally resolved before the board of trustees in favor of SEIU.
3
On
other occasions,
the
District's
agents expressed
their
opinions of unions.
During
one
meeting
with
his
employees,
Prahm
stated
that,
in his
opinion,
they
did
not
need
unions,
as
District
employees
were "one
big
happy
family"
which
could take
care
of
its
own
problems
and
did
not
need
unions
telling
the
District
how
to
run
its
business.
On
another
occasion,
Leo
Dunne,
a
supervisor
working under Prahm,
but not
Pace's
regular supervisor,
warned Nick
Garcia,
an
SEIU
steward,
that
he
should not
be
relying
on
Pace
or the
union so
much
because
there
would
come a
day
when
he would
get in trouble
and
neither
Pace nor
the
union
would be
able to help
him
out.
II.
The
Incident
on
April
21,
1978
This
incident
forms
the
basis
for
one
of
SEIU's
unfair
practice
charges
which
alleges that
Pace
was
disciplined
because of
his
union
activities.
On
the
morning
of April
21, Pace
arrived
at
work
some
time
before his
starting
time.
While
waiting for
a
work
assignment
from
his
immediate
supervisor,
Mike
Hughes, Pace
became
involved in
a
conversation
between Nick
Garcia
and
another
employee,
Mike
Schrader, about procedures for
transferring
or
retaining
union membership upon
quitting
the
District's
employ.
As
the conversation
was
breaking up,
Leo Dunne,
supervisor of maintenance systems,
criticized
the group
for
holding union meetings
on company
time and on
District
property. Garcia
and Pace both protested that
they were
not
4
holding
a
"union meeting"
and
Garcia
left
the
area to
resume
work. Pace remained
and
challenged
Dunne's
authority to
give
him work
orders since
he was
not
Pace's
immediate
supervisor.
This led
to
a
shouting
match between
the
two men
which Hughes
was
forced
to
break
up.
The
hearing
officer
found
that, at
one
point,
Pace took
Dunne by
the
arm.
A few
days
later,
Prahm
asked Pace
to
meet
with
him
about
the April 21st
incident.
When
Pace
requested
that
a
union
representative
be
present
during the meeting,
Prahm
replied
that
he
wanted
to
see
Pace
alone
and
not
anyone
else.
Pace
refused to
meet
with
him
without
a
union
representative,
apparently believing
that
some
discipline
would
result
from
such
a
meeting. After
this refusal,
Pace
received
from Prahm a
written
reprimand
for challenging
Dunne's
authority,
not
following
Dunne's
orders,
and
for
coming
into "direct
physical
contact"
with
Dunne.
Neither Garcia
nor
the
third
employee
who
was
involved in the so-called
"union meeting"
received
a
reprimand, although they, too,
were
objects
of
Dunne's
order to
disperse.
Prahm
set
up two
subsequent meetings, both of
which Pace
refused to attend
because Geoffrey
Sackett, the
SEIU
representative,
was
unavailable.
Prahm made no
attempt
to
ascertain
when
Sackett could attend the meetings. Although
Sackett
made
several attempts to contact
Prahm
to set
up a
meeting time, his messages,
left
with Prahm's
secretary,
were
never answered.
5
The parties finally did meet on May 4, pursuant to the
District's equal opportunity grievance procedure.5 At this
meeting Prahm refused to discuss the April 21st incident which
was the very purpose of the meeting. On the same day SEIU
filed, on behalf of Pace, a formal grievance over the reprimand.
On May 17, Prahm wrote a memo to Les Bailey, the
affirmative action officer who presided over the May 4
meeting. Prahm complained of Pace's "failure to follow
instructions" to break up the "informal meeting" held during
working hours, and also noted that neither Pace nor Garcia
attended the two meetings he (Prahm) had scheduled to discuss
the incident. Garcia, who also failed to attend these
meetings, was not reprimanded. However, Pace received yet
another letter of reprimand on June 26 from Prahm, reiterating
the original charges and adding:
.•. Additionally, you failed to follow my
directions as the department head when
requested to present yourself in my office
for a meeting to discuss the issue ••..
This constitutes willful insubordination.6
Throughout the summer, Sackett made numerous attempts to
process Pace's grievance beyond the first step in accordance
5The District had two separate grievance procedures, one
to be utilized to resolve complaints based on race, sex, or
religious discrimination, and the other to be used for other
grievances over working conditions. Mr. Pace pursued both
avenues in his attempt to get the letter of reprimand removed
from his file.
6charging Party's Exhibit No. 6
6
with
written
District
policies.
His
requests
for responses
from
the personnel
director,
David
Pia,
were
never responded
to.
III.
The
Solicitation
Rules
Shortly
after
the
April 21st
incident
and
in response
to
it,
the
District's
board
of
trustees
passed "Rules
for
Classified
Employee Union
Activity."
During
this
period of
time,
SEID was
involved
in
an
organizing drive
at
the College
of
Marin
in
which Pace
was
an
active
participant.
The
rules
applied only
to
classified
employee
organizations
and were
to expire
upon
the
election
of exclusive
representatives
for those
employees.
The
relevant portion
prohibits recruiting
contacts
during
working
hours which,
by
the
District's
definition,
included
coffee
and
rest
breaks.
Although
the
District
had
rules
restricting
non-union
related
solicitation
and
advertising,
these
were
not
enforced.
IV.
Termination of
Johnny Pace
In
May
1978,
Mr.
Pace began
seeing
a
physician about
stress-related
symptoms.
Dr. Joseph
Engleman, who
treated
Pace
throughout the
summer
of
1978, concluded
that Pace's condition
was
directly
caused
by
the
stress
Pace
was
experiencing
on
his
job
and recommended
that
he
take
a few
days
off
from work,
which Pace
did.
On
July 17, Pace
returned
from a two-week
vacation but
felt
ill
in the morning.
He
so informed
his
immediate
supervisor,
Mike Hughes, and
requested the rest of the day
off in order to
7
see
Dr.
Engleman.
To
this
Hughes
assented
and
told
Pace
that
he
would
see
him
the
next day.
Pace
replied
that
he was
not
sure
about
that
and
left.
After consulting
with
Dr.
Engleman,
Pace
returned to the
college
and
hand-delivered
to
the
president
of
the
college
(with
whom
he was
on
speaking
terms), the personnel
director,
the
affirmative action
officer,
and
to
the
office
of the
District
superintendent,
written
notification that
his health
was
suffering?
and
that
he would be
absent
from work.
Sick
leave
payments
commenced
immediately.
A
couple
of
weeks
later,
the
District
placed in
Pace's
campus
mailbox
a
sick leave
certification
form,
which
is typically
completed
by
employees
upon
their return
from
sick leave.
Pace, being
absent
from
work
at this
time,
never
received
this
form.
At
the time, procedures for taking sick leave
at
the
college
were
very informal.
8 Employees were
not given
copies
of the
District
regulations
concerning
sick leave,
and
the
7The
text
of the
letter is:
Due
to pressure created
as
a
result
of discrimination
by Ole Prahm and
his subordinates,
I
am
compelled
to
stay
away from
the
Campus
temporarily because such
pressure
is
causing serious
damage
to
my
health
and a
hardship to
my
family.
Sincerely yours,
Johnny B.
Pace, Sr.
8rn
fact, this
same
informality pervaded the procedures
for taking leaves of absence. In 1977, Pace took a
six-month
leave
due
to his health.
He
merely asked Prahm
for the time
off, explaining
it
was
for personal reasons,
and was
granted
it.
8
general
practice
was
to
inform
a
supervisor of
the
need
for
sick
leave
and
provide
verification
upon
return.
By
July
20,
Prahm had
received
a
copy
of Pace's
letter
explaining
his
absence;
however,
he
did not
show
this
to
Mike
Hughes,
who
had
been
inquiring
about
Pace's
absence.
Instead,
Prahm
requested
on
August
2
.that
Pace
be "removed from
the
District
payroll,"
on
grounds
that
he had
been
absent without
leave since July
17.
The
District
complied
on August
2
and
notified
Pace
by
mail,
but
he
did not
respond
to
this
letter,
claiming
his health
would
not withstand the
additional
emotional turmoil
involved
in
answering
the
District.
He
was
still
under
the care of
Dr.
Engleman,
who
wrote
a
verification
on
August
2
that
Pace was,
indeed,
ill
but
would
probably
be
able to return to
work
in
September.
The
District, at
one
point,
denied
receiving
Dr. Engleman's document,
but evidence
showed
that
it
did
have
information
from
Kaiser,
where
Dr.
Engleman
practiced, indicating
Pace
was
ill.9
The
president of the
college
made two phone
calls
to
Pace,
but
was
unable to contact
him.
9sackett
testified that
these
forms were
routinely sent
to
employers
upon
the
filing
of
disability
claims,
which Pace
filed.
Also, there
was
hearsay testimony to the
effect that
Pia admitted
that
he had
received
some
documentation of Pace's
condition
from
Kaiser.
However,
this
statement
would be
admissible in
a
civil
action
as an
admission of
a
party.
California
Evidence Code
section
1220.
9
Charges ultimately resulting in Pace's dismissal were filed
on August 25, stating that he would be fired for being absent
without leave and for failing to follow District procedures for
taking sick leave. Pace did not answer these or request a
hearing, believing that responding would cause increased stress
and further endanger his health. Termination procedures were
finalized on September 6, 1978, but the dismissal was made
retroactive to July 17, and Pace was required to reimburse the
District for sick leave payments he had received.
DISCUSSION
I. Discriminatory Discipline and Discharge
The District claims that its discipline and discharge of
Pace were not prohibited by EERA, section 3543.S(a) because
both actions were taken for legitimate business reasons. In
analyzing alleged section 3543.S(a) violations and defenses
thereto, this Board has formulated the following test:10
Where the charging party establishes that
the employer's conduct tends to or does
result in some harm to employee rights
granted under the EERA, a prima facie case
shall be deemed to exist;
Where the harm to employees' rights is
slight, and the employer offers
justification based on operational
necessity, the competing interest of the
employer and the rights of the employees
will be balanced and the charge resolved
accordingly;
lOcarlsbad Unified School District (1/30/79) PERB
Decision No. 89.
10
Where
the
harm
is
inherently
destructive
of
employee
rights,
the
employer's
conduct
will
be
excused only
on
proof
that
it
was
occasioned
by
circumstances
beyond
theemployer's
control
and
that
no
alternative
course of
action
was
available;
Irrespective
of the foregoing,
a
charge
will
be
sustained
where
it
is
shown
that
the
employer
would
not
have engaged
in the
complained-of conduct
but for
an
unlawful
motivation,
purpose
or
intent.
While
the
actual
motive
of
an employer
who
disciplines
a
union
activist is
seldom
revealed
by
direct
evidence, the
illegal
purpose harbored
by
the
discriminating
employer
may be
inferred
from
the circumstances surrounding the
discipline
or
discharge.
These
may
include
anti-union
animus
exhibited
by
the
employer
or
its
agents;
the
pretextual
nature of the
ostensible
justification
for the employer's
action;
or
other
failure
to
establish
a
business
justification.
11
It
has
been
held
that
the discharge of
a
union
activist
"gives
rise
to
an
12
inference of impermissible, anti-union discrimination."
There can
be
little
doubt
that
both the
District's
management team and Prahm,
in
particular,
were
very aware
of
Pace's
union
activities.
He
represented the union
in
llshattuck
Denn Mining Corp. v.
NLRB
(1966) 362
F.2d
466
[62
LRRM
2401).
12Head
Division,
AMF
v.
NLRB
(1979) 593
F.2d
972
[100
LRRM
3035]. See also
NLRB
v.
Montgomery Ward & Co. (1977)
554
F.2d
996 [95
LRRM
2433];
NLRB
v. Glen Barry
Mfg. (1970) 422
F.2d 748 [73
LRRM
2301].
11
negotiations,
attended
board
of
trustees'
meetings
and
college-wide
committee
meetings
in
his
capacity
as steward,
processed grievances
through
various
levels
of supervision,
and
participated
in
organizing
campaigns.
Although
Prahm
had
exhibited his
dislike
of
unions
before
the
April
21,
1978
incident
with Pace, the
supervisor's actions
subsequent
to
that
show more
eloquently
than
his
words
his
anti-union
attitude.
The
Board
is
unconvinced
by
the
District's
argument
that
Pace
was
singled out for
reprimand
following the
April
21
incident solely
because
he
allegedly
physically
confronted
and
threatened
Dunne.
Pace
was
ultimately
reprimanded
for
three
things:
1)
holding
a
"union
meeting"
on
company
time;
2)
challenging
Leo
Dunne's
authority
to give
work
orders
and
physically confronting
him;
and,
3)
refusing to attend
meetings with
Prahm
to discuss the
incident.
13 Two
of these three transgressions
were
also
committed
by
Garcia, yet
only Pace
was
disciplined.
14
Such
unexplained
disparate
treatment of
Pace, coupled with the
13Although
the hearing
officer failed to rule
on
thatportion of the complaint concerning Pace's reprimand, the
District
places
it
in issue
by
claiming
that
they
had
legitimate business
justification
for reprimanding Pace.
14Although Garcia
was a
shop steward
and
thus also
associated with the union, Pace was
the
much more
visible
union
activist.
According to uncontradicted testimony of
a formerSEIU
business agent, Pace "was
the union" to
most
of the people
at the college.
As
noted, supra,
Dunne had warned Garcia not
to rely
on "Pace or the union so much."
12
evidence
of
Prahm's
prior
antipathy
towards
him,
tends
to
show
that
Pace's
union
activity
was
the underlying reason
for
disciplining
him
for
holding
a
"union meeting"
and
refusing to
attend
Prahm's
meetings.15 In
addition,
Prahm's
refusal to
discuss
the April
21
incident
at
the
May
4
grievance
meeting
and
the
District's
subsequent
refusal to
process
SEIU's
grievance
of
the reprimands,
further
supports
an
inference of
anti-union
animus
in
the
District's
treatment of Pace.
Apart
from
evidence of motive, the
reprimand
of
Pace
for
failing
to
attend
the
meetings with
Prahm
without
his
union
representative violates
section
3543.5(a). In
NLRB
v.
Weingarten,
Inc.
(1975) 420
U.S.
251 [88
LRRM
2689],
the
Supreme
Court upheld
the
right
of
an employee
to
have
a
union
representative present
at
an
investigatory
interview with the
employer
which
the
employee
reasonably
believes
may
result
in
discipline.
This
right is
based
on
that
portion of the
National
Labor
Relations
Act which
declares that
it
is
the
national labor policy to protect "the exercise
of workers
of
full
freedom
of association, self-organization,
and
designation
of representative of
their
own
choosing, for the purpose
16
of
•••
mutual
aid or
protection."
15see Bert
Wolfe Ford (1978) 239
NLRB
555 [100
LRRM
1098]; National
Tape Corp (1970) 187
NLRB
321 [76
LRRM
1008].
1629 u.s.c. section
151.
13
The
Supreme
Court noted:
The
union
representative
whose
participation
he
[the
employee]
seeks
is
••.
safeguarding not only the
particular
employee's
interest,
but
also
the
interests
of the
entire
bargaining
unit
by
exercising
vigilance to
make
certain that
the
employer
does
not
initiate
or
continue
a
practice
of
imposing punishment
unjustly.17
Similarly,
under
EERA,
an
employee's
right
to
be
represented in
employment
relations
is
specifically
mentioned
in the Act.18
Section
3543
declares:
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
ofemployer-employee
relations
••••
It
is
appropriate, therefore, to
find
that
employees under
ERRA
enjoy the
right
of
representation
at investigatory interviews,
such
as,
the
one
involved
in
this
case.
Hence,
the
District's
reprimand
of
Pace
for
his
failure
to
attend
meetings with
Prahm,
as well as the
reprimand
for
discussing
union
business allegedly
during
working
hours,
violates section
3543.5(a)
.19
17weingarten, supra,
at
260; 2692.
18Fire Fighters
Union
v. City of Vallejo
(1974) 12
Cal.
3d
608.
19 Van
Tran
Electric
Corp. (1975) 218 NLRB 43 [89
LRRM
1336],
illegal
discharge of
employee who
refused to attend
14
We
disavow
the hearing
officer's
theory
that
Pace
was
constructively
discharged.
The
doctrine of constructive
discharge
is
applied in
situations
where an employee
is
forced
to
quit his/her
employment
because
of
the
illegal
acts
of the
employer.
2°
Contrary
to the
implied
finding
by
the hearing
officer,
Pace
did not
quit
or
abandon
his
job.
21
His
notification
of July
17
states specifically,
"I
am
compelled
to
stay
away from
the
Campus
temporarily
•••
"
(emphasis
added).
Dr. Engleman's
testimony
and
the medical
verification
he
completed
(Charging
Party's
Exhibit
No. 11) on
August
2, 1978,
indicated that
Pace
would be
able to
return
to
work ·(and
inferentially that
he
desired to
resume work)
in
September 1978.
The Board
finds
the
District
unequivocally
dismissed
Pace
for
his alleged
absence without leave
and
failure
to properly
inform
his
supervisor of his
absence. That
Weingarten meeting without
union
representation; see
also,Spartan Stores
(1978) 235
NLRB
75 [100
LRRM
1181],
employee
illegally
discharged for walking
out of
an
investigatory
meeting
to get
his
union
representative.
20J. P. Stevens
Co. (1972) 461
F.2d
490 [80
LRRM
2609],
enforcing
183
NLRB
25 [75
LRRM
1407]; Hertz Corp. {1971) 449
F.2d
711
[78
LRRM
2569],
enforcing 184
NLRB
445 [74
LRRM
1633].
21The
only documentary evidence
relied
on by
the
Districtthat
Pace
quit his
job was an unemployment
insurance claimwhich he
filed
in July 1978. The
credited testimony
reveals,
however,
that in July
Pace applied for State Disability
which,
like
unemployment
insurance, is administered
by
the
Employment
Development Department.
It is unclear
why
this
form was
filled
out, but Pace
testified that
he understood
it
to pertain to the
disability benefits for which he was applying.
On
the lineinquiring about reasons for no longer working, Pace checked the
box, "Other," rather than "Discharged" or "Voluntary Quit."
15
Pace did not respond to the District's written notification of
its proposal to terminate his employment does not convince us
that he abandoned his job. He was, at that point, under
doctor's orders to refrain from stressful encounters, to not
think about his work and to stay away from work until
September. Pace testified that he began to feel ill when he
received the charge letter and felt unable to contest it.
We reject the District's proffered reasons for terminating
Pace for several reasons. Pace put the District on ample
notice that he was ill by notifying the president of the
college, the personnel directo~, and the affirmative action
officer of his need to be temporarily off work. Even if his
immediate supervisor, Hughes, believed Pace did not properly
request sick leave, he would have known of Pace's illness three
d s after Pace left work had Prahm told Hughes of the July 17
letter. Prahm's unexplained failure .to communicate to Hughes
becomes even more questionable in the face of the latter's
repeated inquiries of Prahm as to Pace's whereabouts. The fact
that Pace did not follow written regulations regarding sick
leave reporting becomes irrelevant when we consider that he
notified several officials of the college, putting Hughes on
constructive notice that he was ill and would be off work
22 indefinitely; that the District put him on sick leave
22Armstrong Circuit, Inc. (1971) 189 NLRB 92 [76 LRRM
1669).
16
immediately, even though they claimed after the fact that this
was a result of a clerical error; that past practice for
reporting illness and taking leave was very informal and
allowed an employee to submit medical verification upon return
23 to work; and that the District's regulations concerning
sick leave reporting were never circulated to its employees.24
The District made only minimal efforts to contact Pace
during August when it was setting in motion the termination
process. In this context, the two phone calls which the
president made do not comport with treatment which would be
expected towards a 15-year employee with a good work record,
absent an anti-union motivation.25
We are further convinced that the District's claim of
business justification does not stand in light of the numerous
prevarications and contradictions of several of the District's
key witnesses during
-
the
- -
hearing.~
• .,
u
t::
For example, at the
hearing Prahm expressed surprise that Pace had any job
stress-related medical problems, and denied having received a
copy of Pace's July 17 memo. Yet Prahm sent a memo to
23st. Anne's Hospital (1979) 245 NLRB 130 [102 LRRM 1527].
24Avon Convalescent Center, Inc. (1972) 200 NLRB 702 [82
LRRM 1233].
25Los Gatos Joint Union High School District {3/21/80)
PERB Decision No. 120.
26v. v. Castings (1977) 231 NLRB 912 [96 LRRM 1121].
17
Bob Hughes
(as
distinct
from Mike Hughes)
saying,
"I
received
a
copy
of
a
letter
••.
from
Johnny Pace
on
Thursday,
July
20,
which
stated that
he was
compelled
to stay
away from campus
as
a
result
of alleged discrimination
. . . n27
There
were
other
denials
by
District
witnesses
that
they
had
received
certain
documents--David
Pia
claimed
that
the
last
communication he
received
from
the
union
concerning
Pace's
grievance
was
dated
July
3, but
there
is
in evidence
a
letter
from
Sackett to Pia
dated
August
10.
The
president of
the
college
testified,
that
at
the
time
of Pace's dismissal,
he was unaware
of
any
medical
problems
Pace
was
having,
yet
Pace
had
hand-delivered
his
July
17
memo
to
Diamond's
office.
Prahm
claimed
if
an employee
requested
union
representation,
he
would,
without
fail,
have
someone
at
the meeting, but
a
memo
from him
belies
such
sentiment.
It
reads:
I was
left
a
message
that
the
union
representative
would
again not
be
available
•••
however,
at
my
discretion,
I
chose
to
proceed with the meeting
anyway and
did not
call
it
off.28
In
light of
all
the
facts,
we
conclude
that
Pace was
terminated solely
because
of his
union
activities
in
violation
of section 3543.S(a).
2
7charging
Party's Exhibit
No.
8(a).
28charging
Party's Exhibit
No. 3.
18
II.
The
Rules
Regulating
Union
Activity
We
summarily
affirm
the hearing
officer's
findings of
fact
and
conclusions of
law on
this
aspect of
the complaint,
viz.,
that
the
prohibition
of
solicitation
by
employee
organizations
during
rest
and
coffee
breaks
is
presumptively
invalid
and
that
the
District
did not
offer
adequate
justification
to rebut the
presumption.
Additionally,
the
rules
as
a whole were
enacted
for
a
discriminatory
purpose because they
were
promulgated
at
an
important
point
in
SEIU's
organizing
campaign,
29
because
they
were
directed
only
at classified
employee
organizations,
and
because
the
prohibitions against
non-union commercial
activity
were
not enforced
at
the
time
these
restrictions
on
employee
organizations
were
enacted.30
REMEDY
Pursuant to the
authority
vested in
this
Board by
section
3541.S(c)
, 31
we
affirm the
proposed
remedy
and,
in
addition,
ORDER
the
District
to retroactively reinstate
to
29state
Chemical Co. (1967) 166
NLRB
455 [15
LRRM
1612];
Sardis
Luggage Co. (1968) 170
NLRB
187 [70
LRRM
1230].
30wm
H. Block (1964) 150
NLRB
341 [57
LRRM
1531].
3lsection
3541.5
provides:
The
initial
determination as to whether the
charges of unfair practices are
justified,
and,
if
so,
what remedy
is necessary to
effectuate the purposes of this chapter,
shall
be a matter within the exclusive
jurisdiction of the board. Procedures for
19
July 17,
1978
Pace
into
the Public
Employees
Retirement
System
{PERS)
in
accordance with
the
rules
and
regulations
of
PERs.32
Having found
that
the
District
violated section
3543.S{a)
by
reprimanding
Pace
on
April
27,
1978 and
June 26, 1978,
it
is
also appropriate
that
the
District
purge
Pace's
files
of
all
material
relating
to
those
reprimands
which
this
Board
has
found
illegal
and
refrain
from
taking
any
disciplinary action
against
Johnny Pace based
on
those reprimands.
ORDER
Upon
the foregoing
findings of
fact,
conclusions of
law,
and
the
entire
record
of
this
case,
it
is
found
that
the
Marin
Community
College
District
has
violated
Government
Code
section
3543.S{a)
by
reprimanding
and
discharging
Johnny
Pace
and
has
violated section
3543.S(a}
and {b) by
adopting
overly
investigating,
hearing,
and
deciding these
cases
shall
be
devised
and
promulgated
by
the
board and
shall
include
all
of thefollowing:
. . . . . . . . . . . . . . . . . . . . . . .
(c)
The
board
shall
have
the
power
to issue
a
decision
and
order
directing
an
offending
party to cease
and
desist
from
the unfair
practice
and
to take such
affirmative
action, including but not limited to the
reinstatement of
employees with or without
back pay, as
will effectuate the policies of
this chapter.
32NLRB
v. Rice Lake Creamery (1966} 365
F.2d
888 [62
LRRM
2332].
20
broad
no-solicitation rules.
IT
IS
HEREBY ORDERED
that
the
District
and
its
representatives
shall:
(1)
CEASE
AND
DESIST
FROM:
{a)
Imposing
or
threatening to
impose
reprisals
on
Johnny
Pace,
discriminating
or
threatening to
discriminate
against
Johnny Pace
or
otherwise
interfering
with,
restraining,
or
coercing
Johnny Pace
because
of his
exercise of his rights
to
form,
join,
and
participate
in the
activities
of
employee
organizations
of his
own
choosing
for the
purpose
of
representation
in
all
matters of
employer-employee
relations,
including the
right to
be
represented
at
a
meeting
with the
employer
from which he
thought
discipline
would
follow, by
discriminatorily disciplining
and
terminating
Johnny
Pace's
employment.
(b)
In
any
like
or
related
manner
denying
to
employees
rights
guaranteed
to
them by Government Code
section
3543
to
form,
join
and
participate
in the
activities
of
employee
organizations
by
adopting
rules
restricting
employee
organization access to
classified
employees
during
rest
and
coffee breaks,
and by
regulating only
classified
employee
organizing
activity.
(c)
In
any
like
or
related
manner denying
to
employee
organizations their rights guaranteed
by
section
3543.1
of
reasonable access at reasonable times to employees by
adopting
rules restricting
employee organization access to classified
21
employees during rest and coffee breaks, and by regulating only
classified employee organization activity.
(d) Enforcing the, "Classified Union Activity Rules"
passed by the board of trustees of the District on May 17, 1978.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH IS
NECESSARY TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL
EMPLOYMENT RELATIONS ACT:
(a) Immediately offer to fully reinstate Johnny Pace
to his former job, or, if the job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights, benefits and privileges previously
enjoyed;
(b). Make Johnny Pace whole for any loss of pay and
other benefit(s) he may have suffered by tendering to him a
back-pay award equal to an amount that he would have been paid
absent his unlawful discharge on July 17, 1978 until the date
of the offer of reinstatement; this total amount to be offset
by Pace's earnings as a result of other employment during this
period, and with payment of interest at 7 percent per annum of
the net amount due;
(c) Reinstate Johnny Pace into the PERS retroactive
to July 17, 1978, in accordance with the rules and regulations
of PERS;
(d) Remove from Johnny Pace's personnel files any and
all material relating to the reprimands given to him for
22
discussing
union
business
allegedly
during
working
hours
on
April
21,
1978,
and
for
refusing to attend
meetings with
his
superiors
regarding
this
incident
without
his
employee
organization representative.
(e)
Within
five
(5)
workdays
of date of
service
of
this
decision,
post
copies
of
the Notice
attached
as
an
appendix
hereto
at
all
work
locations
at
the
Marin
Community
College
District
where
notices to
employees
customarily
are
placed.
Such
posting
shall
be
maintained for
a
period of
thirty
(30)
consecutive
workdays. Reasonable
steps
should be
taken
to insure
that
said
Notices
are
not
reduced
in
size,
altered,
defaced
or covered by
any
other
materials;
and,
(f)
At
the
end
of
thirty-five
(35)
workdays from
date
of service of
this
Decision,
notify
the
San
Francisco Regional
Director of the Public
Employment
Relations
Board, in
writing,
of the
action
the
District
has taken to
comply
with
this
Order.
It
is
further
ORDERED
that
the "Classified
Union
Activity
Rules" passed
by
the board
of
trustees of the
District
on
May
17,
1978 be
rescinded,
effective
the date of
their
enactment.
It
is further
ORDERED
that
the
instant
charges
be
dismissed
in
all
other respects.
By: .!Har~} Gluck, Cha1.rperson Barbara D. Moore, Member
23
APPENDIX
NOTICE
TO
CLASSIFIED
EMPLOYEES
POSTED
BY
ORDER OF
THE
PUBLIC
EMPLOYMENT
RELATIONS
BOARD
An
Agency
of the
State
of
California
After
a
hearing
in
Unfair
Practice
Case
Nos.
SF-CE-297 and
SF-CE-316,
Service
Employees
International
Union,
Local
250
and
Local
400,
AFL-CIO
v.
Marin
Community
College
District,
in
which
both
parties
bad
the
right
to
participate,
it
has been
found
that
the
Marin
Community
College
District
violated
section
3543.S(a)
of the Educational
Employment
Relations
Act
(EERA)
by
interfering
with, discriminating against,
and
coercing
its
employe~Johnny Pace, because
of
his exercise of
his rights
under
the
Act
by
discipling
and
terminating
him
because
of
his
union
activities
and
has
violated section
3543.S(a)
and (b)
of
EERA
by
imposing an
overbroad
set
of
"Classified
Union
Activity
Rules" (dated
May
17,
1978}
which
unlawfully
restrict
organizational
activity.
As a
result
of
this
conduct,
we
have been
ordered
to post
this
Notice,
and
we
will
abide
by
the following:
(1)
WE
WILL CEASE
AND
DESIST
FROM:
(a)
In
any
like
or
related
manner imposing
or
threatening to
impose
reprisals
on Johnny
Pace, discriminatingor threatening to discriminate against
Johnny Pace, or
otherwise
interfering with, restraining,
or coercing Johnny
Pace because of his exercise of his right to
form,
join,
and
participate in the
activities
of
employee
organizations of his
own
choosing for the purpose of representation in
all
mattersof employer-employee
relations.
1
(b)
Enforcing the
Classified
Union
Activity
Rules
passed
by
the
board
of
trustees
of the
District
on
May
17,
1978.
(c)
In
any
like
or
related
manner
denying
to
employee
organizations
rights
guaranteed
to
them by Government
Code
section
3540,
et
seq.
(2)
WE
WILL
TAKE THE FOLLOWING
AFFIRMATIVE ACTIONS
WHICH
ARE
NECESSARY
TO
EFFECTUATE
THE
POLICIES
OF
THE
EDUCATIONAL
EMPLOYMENT
RELATIONS ACT:
(a)
Immediately
offer
to
fully
reinstate
Johnny
Pace
to
his
former
job,
or,
if
the
job
no
longer
exists,
to
a
substantially
equivalent
position,
without
prejudice to his
seniority
or
other
rights
and
privileges
previously
enjoyed.
(b) Make
Johnny
Pace
whole
for
any
loss
of
pay
or
benefit(s)
he may
have
suffered
by
tendering to
him a
back-pay
award which
constitutes
an
amount
equal
to
that
which he would
have
received absent
his
unlawful
termination
on
July
17,
1978
until
the date of the
offer
of reinstatement,
this total
amount
to
be
offset
by
Pace's earnings as
a
result
of other
employment
during
this
period,
and
with
payment
of
interest at
7
percent
per
annum
of
the net
amount
due.
(c)
Retroactively to July
17,
1978,
reinstate
Johnny
Pace
into
the
PERS
in
accordance with the
rules
and
regulations
of
PERS.
(d) Remove from
Johnny
Pace's personnel
files
any
and
all
material relating
to the reprimands given
to
him
for
discussing
union
business allegedly
during
working
hours on
April
21 and
for refusing to attend
meetings with
his superiorswithout his
employee
organization representative,
when
he
reasonably believed
that discipline
would
result.
2
In addition, we note that the classified Union Activity
Rules passed by the District's board of trustees on
May 17, 1978 have been rescinded.
Dated
MARIN COMMUNITY COLLEGE
DISTRICT
BY _ _,...---,----,---------
Authorized Agent
of the District
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY MATERIAL.
3
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 250 and LOCAL 400,
AFL-CIO,
Charging Parties,
v.
MARIN COMMUNITY COLLEGE DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
___________________ )
Unfair Practice
Case Nos.
SF-CE-297
SF-CE-298
SF-CE-316
PROPOSED DECISION
(3/21/80)
Appearances: Robert J. Bezemek, Attorney (Van Bourg, Allen,
Weinberg and Roger) for Service Employees International Union,
Local 250 and Local 400, AFL-CIO; Jon A. Hudak, Attorney
(Breon, Galgani & Godino) for Marin Community College District.
Before Michael J. Tensing, Hearing Officer.
BACKGROUND
On August 11, 1978, charges were filed by the Service
Employees International Union, Locals 250 and 400 (hereafter
SEIU or the Organization) against the Marin Community College
District (hereafter the District) in cases SF-CE-297 and
SF-CE-298. On September 29, 1978, an additional charge was
filed by SEIU against the District, SF-CE-316. The three
charges were consolidated for hearing.
A hearing was convened on May 30, 1979. At that
time, the Organization withdrew SF-CE-298. Evidence was
received during four days of hearing relating to the other two
charges. Briefs were subsequently filed by the parties in
October of 1979.
The two remaining charges allege in substance that the
District violated sections 3543.S(a}, (b) and (d} of the
Government Code 1 by: (1) adopting a set of Union Activity
Rules which regulate only classified employees; (2)
discriminatorily enforcing these Union Activity Rules; (3)
disciplining a classified employee because of his protected
activities; and, (4) discharging or constructively discharging
the same classified employee.
ISSUES
1. Did the District violate section 3543.S(a), (b) or
(d) of the EERA by the adoption of Union Activity Rules
directed solely against classified employees?
2. Did the District violate section 3543.S(a}, (b) or
(d) by their manner of enforcing these Union Activity Rules for
classified employees?
3. Did the District violate section 3543.S(a) by
disciplining, discharging, or constructively discharging a
classified employee because of his protected activity?
1. All statutory references herein are to sections 3540 et
seq. of the California Government Code (also referred to as the
Educational Employment Relations Act (EERA) or the Act) unless
otherwise indicated.
2
FINDINGS
OF
FACT
General
Background
for
Both
Charges
Mr.
Johnny Pace
was
employed
by
the
Marin
Community
College
District
on
December
16,
1963
as
a
carpenter.
He
first
became
active in
an
employee
organization
about
1965.
He
served as
chapter
president
of the
California
School
Employees
Association
(hereafter
CSEA)
before
joining
SEIU
in about
1967.
Shortly
after
switching
to
SEIU,
Pace
became
shop
steward,
representing trades
and
crafts
employees
2
in
their
employment
relationship
with
their
employer.
As
shop
steward,
Pace
served
on
various
committees, such
as the
salary
committee
and
the grievance
committee,
and
also
served
on
the
Organization's
executive
board.
2.
SEIU
did not
become
the exclusive representative
of the
District's
classified
employees
until
1978.
The
Public
Employment
Relations
Board
(hereafter
PERB),
formerly
theEducational
Employment
Relations
Board
(hereafter
EERB),
held
hearings in
1976
to
determine
appropriate
classified
negotiating units
in the
District.
In October
of
1977,
the
District
entered into
an
interim
agreement with both
SEIU andCSEA.
Units
were
determined
in
June
of
1978 and SEIU became
the exclusive representative of
classified
employees,
as
a
result
of
an
election,
on December
7,
1978.
Prior to
the operative date of the
EERA,
July 1,
1976,
public school employer-employee
relations
were
governed
by
the
Winton
Act, Education
Code
section
13080
et seq.,
which
did not provide for exclusive representation.
3
According to the uncontradicted testimony of Ms. Diane
Reynolds, presently the special assistant to the chief for the
State Department of Industrial Relations and, during much of
the time in question, a business agent for Local 400 of SEIU,
it is found that Mr. Pace remained a central figure in campus
employee relations matters for SEIU during a period extending
at least through 1976, when the Organization was experiencing a
relatively heavy turnover of paid staff:
Through all of our changes, he was the shop
steward and continued on after I had left, and in
fact because of all of our changes, which I think
were a little disruptive, he was the one thing
that was a little constant there at the college,
and remarkably, even when we had some periods
with basically no representation, when we were
moving from one assignment to another, at least
he -- you know, he kept the membership up and he
kept the organization going, and he was an
extremely active shop steward. To most of the
people there at the college, he was the union.
In February of 1974, Mr. Ole Prahm was hired by the
District as supervisor of plant facilities, responsible for the
maintenance, custodial and garden departments at the College of
Marin. On August 23, 1978, Prahm was promoted to the position
of director of facilities management. On March 31, 1979, he
left District employment.
Since February of 1974 and continuing through the
period when the instant charges were filed, Mr. Prahm directly
supervised the men to whom Mr. Pace reported (Mr. Cal Davis
until January 1978 and w. M. "Mike" Hughes thereafter).
4
As shop steward, Pace brought grievances to his
immediate supervisor and then to Prahm. During 1974, Pace was
a member of a number of College of Marin committees. It was
over these committees that he had his first major disagreement
with Prahm. Prahm challenged Pace, calling him out of a
committee meeting and asking him why he was there. Committee
meetings were absorbing about three or four hours of Pace's
work time each week.3
Pace's committee participation, active before Prahm's
arrival, had never been questioned. The District
superintendent subsequently phoned Prahm in Pace's presence and
at his behest, affirmed that Pace was entitled to participate
in the work of committees to which he had been elected or
appointed.
Prahm subsequently sought unsuccessfully to have all
ex officio classified organizational participation in campus
committees banned. But Prahm was informed that dropping
classified employee participation would require banning
certificated employee participation in committees, as well,
something the administration was unprepared to do.
Later, Pace took his complaint regarding Prahm's
interference with his committee work to the president of the
3. While these were, strictly speaking, College of Marin
activities rather than Organizational activities, Pace
participated not only because of his active concern for
employee interests, but also because of his SEIU stewardship.
5
campus, who ~lso talked to Prahm about it.
Later still, in 1976, Prahm proposed to the District
that it eliminate trade classifications, such as carpenters,
plumbers, etc., and instead classify jobs with generic titles,
such as laborer or general maintenance worker.
According to the SEIU Local 250 business
representative at that time, Geoffrey Sackett, whose testimony
below is corroborated and credited, the question was hotly
debated and Prahm and Pace were again involved in a verbal
confrontation.
A. [By Mr. Sackett] •.• [t]here was a lot of
acrimony and a lot of debate, and we [i.e.,
SEIU] took a very, very strong position against
generic terms, and that position was voiced by
Johnny Pace since he was the most outspoken and
the most able to speak to that question.
Q. [By Mr. Bezemek] What was Mr. Prahm's
involvement, if you know, in this reorganization?
A. As I understand it, he was a mover in the
reorganization, and it was his recommendation in
terms to increase productivity to make everybody
a general worker, so that you could have a
person who was, you know, a plumber, and put a
broom in his hand and tell him to go sweep the
science room, and it didn't matter that there
was a job to be done by a worker, that as long
as they had bodies available that the work would
get done, and that it would then increase
productivity because you might not need two
janitors if you had a janitor and a plumber.
Q. And unions have traditionally opposed this
sort of generic titling, haven't they?
A. That's correct.
Pace testified that at a meeting of all crafts
6
employees and certain other classified employees, the proposal
to change job classifications was discussed with supervisorial
personnel and Prahm made comments at that time to the effect
that, "We don't need any union."
Q. [By Mr. Hudak] So who brought up unions at
this meeting?
A. [By Mr. Pace] I believe he [Mr. Prahm] did.
I don't remember anyone else bringing it up. He
just stated that he didn't think we needed any of
them around, that we were one big happy family,
and we could take care of all our own problems,
and that they were really bothersome to be
trying to tell the college how to run its
business.
On the basis of the credibility determinations to be
set forth hereinafter, Pace's account of this episode is
credited.
The proposal which Prahm backed and Pace opposed was
not implemented. Subsequently, however, in 1977 and 1978, the
District undertook a reorganization which reduced the
classified work force from 134 to about 80 employees.
It was Johnny Pace's perception that Ole Prahm was
harassing him because of his race (Pace is black, Prahm is
white) and because of his organizational activities. Pace
spoke with the campus president about this. He felt that he
was being discriminated against in the way work assignments
were distributed and was being made an example of, in that he
was, he felt, being given an unusually high percentage of
menial jobs which did not utilize his skills as a professional
carpenter. Pace also went to, among others, David Pia, the
7
District's
personnel
director.
Pia
later
recalled
their
meeting
at
the
hearing.
His
recollection
is
reported
verbatim
below
because
it
so
graphically
reflects
the
extent of
Johnny
Pace's
concern
and
the
District's
response.
It
also
demonstrates
what
it
was
about
Pace
that
Pia
remembered
best,
perhaps
reflecting
on
Pia's
motivation
later
in
the
relationship.
Q. Now,
can
you
tell
us what
you
recall
about
that particular
meeting
you and he
had?
A. [By Mr.
Pia]
I
don't recall
an
awful
lot,
it's
been
quite
a
while, but
I do remember
one
specific
thing
that
he
did
to
my
desk
which
I
recall
quite
clearly.
In the course of
his
conversation,
he
defaced
the
desk
with
the
--
with
the
pencil,
the metal
portion
of
a
pencil.
I
don't
think
he was
doing
it
intentionally.
He
was
so
intent
on
describing
his
concerns
that
I
guess
he
just didn't
--
didn't
know what he was
doing.
Q. What
type
of pencil
was
that?
A.
It
was a
regular
yellow
pencil.
Q.
An
ordinary
wooden
pencil?
A.
Yes.
Q. Was
the eraser
worn
off?
A. Yes.
Q. And how
did
he
deface the desk?
A.
Well,
he was
talking to
me
and he was
concentrating
on
the
issue,
and he was
carving
a
groove on
the top of
my
desk.
I remember
it
because
it's
there today.
Q.
Well,
didn't
you
point
it
out to
him?
8
A. Well, I was so amazed I guess I didn't. He
is quite an intense man. He was more concerned
about other things, and I was there to listen.
Q. Now, did he appear to be angry at you --
A. No
Q. --and that was the reason why he was gouging
your desk?
A. No, no. I think he was extremely concerned
about an issue, and he was concentrating on it,
and I think he just subconsciously was doing that.
Q. Do you recall the details of his complaint
concerning Mr. Prahm at that time?
A. I cannot recall specifically, but I do recall
that -- that particular incident because I see it
on my desk every day.
Q. But beyond that you don't have any
recollection
A. No.
Q. -- of what he was complaining about?
A. Simply that he was -- he was concerned about
their relationship.
Q. Did you give him any assistance of any kind
or any advice?
A. Well, I tried to explain to him that -- that,
you know, there are several instances in this
life where you -- where there might be conflicts
between individuals, but it's important to try to
work out some kind of understanding, if possible.
I was trying to -- as many times a personnel
director does, I was trying to listen and trying
to understand what the problem was to see if I
can't give some help.
Pace applied for, and was granted, a six month leave
of absence without pay for the last six months of 1977. He
9
testified
that
other
employees
told
him Prahm
said
he
hoped
Pace
would
not
return
from
his
leave
of
absence.
According
to
Prahm, Pace
came
to
him upon
his return
and
said
something
to
the
effect that:
I want
to
I want
to
just
look
out for
me
now.
I'm
tired
of looking
out for
everybody
else
in
the union,
and
I'm
just
going
to
be me.
Prahm
said
he
felt
since
Pace
was no
longer
shop
steward
the
adversarial
aspect of
their relationship
would be
removed and
things
"would work
themselves
out."
Nonetheless,
shortly
after
returning to
work,
Pace
complained
to
Prahm
regarding the
same
sort
of
harassment
that
had
prompted
his
earlier
complaints.
Pace
also
contended
that
he was
under
surveillance
and was
being
assigned
more
difficult
work.
The
Incident of April
21,
1978
On
April
21, 1978, Johnny Pace had a
conversation in
the
District
maintenance yard with
two
other
employees,
Nick
Garcia
and Mike
Schrader. Garcia
had
replaced
Pace
as
SEIU
shop
steward. Schrader
was
the
SEIU
steward for
classified
employees
at
another
campus
in the
District.
The
subject of
the conversation
was
Schrader's
planned withdrawal
from
the
Organization.
(He was moving
to
another job.)
Four
witnesses
testified
concerning
what happened during
and
after
the
exchange. Leo Dunne and Mike Hughes,
the
two
supervisors
who
became
involved, also filed written reports,
which were
received into evidence.
10
There is an unresolved disagreement as to when it was
that the above exchange took place. It was either just before
or just after 7:00 a.m., the time the shift begins. In any
case, Leo Dunne approached Johnny Pace and told him to, "Stop
hanging around the damned yard holding union meetings." Pace
asked Dunne what he meant by a union meeting and Dunne replied,
"The Union meeting you were just holding."
Pace said he wanted to get things straightened out,
and told Dunne that he wasn't his boss and that he hadn't been
holding a union meeting. Pace suggested they go see Mike
Hughes, Pace's immediate supervisor. Hughes had asked Pace to
remain in the yard because he had a project for him.
Dunne responded that he'd get it straightened out when
he was good and ready. Pace went into Mike Hughes' office and
asked him to come out. Back out in the yard, Pace asked
Hughes, in front of Dunne, who his boss was. Hughes replied
that he was. Hughes then asked Pace to go into the corporation
yard and forget the whole thing. Hughes went back to his
office. Another heated exchange followed. Pace took Dunne by
the arm. Dunne testified that he said (in a loud voice audible
in Hughes' office), "Take your so-and-so hands off of my arm."
Hughes returned to the scene and separated the two men.
The hearing officer concludes on the basis of the
relative logic and consistency of the various versions, and his
observation of the witnesses during the hearing, that the above
facts can be believed. Though various versions of this scene
11
color
the
episode
differently,
further
details
offered
by
each
of
the witnesses are
unnecessary.
What
is
more
significant
to
this
decision
is
how
the episode
was
subsequently
dealt
with.
4
After the
confrontation,
both
Hughes and
Dunne
wrote
memoranda,
describing
what
they
had
observed,
to
Ole
Prahm.
On
April
27, 1978,
Prahm
wrote
a
memo
to
Pace
reprimanding
him
for
challenging
Dunne's
authority rather
than
"doing as
requested."
This
memo
was
not given
to
Pace
until
May
1,
1978,
nine
days
after
the
confrontation.
The
reprimand
was
placed in Pace's
personnel
file.
Prahm
then attempted
to
schedule
a
meeting
with
Johnny
Pace
and
Nick
Garcia.
Mr.
Schrader, the
third
employee
participant
in the April 21st episode,
was
not included in the
meeting,
which
was
set
for
a
Friday afternoon
after
work
hours.
Informed
of the meeting,
Pace
refused
to attend without
a
non-employee
representative
from
the Organization
present.
Prahm
pressed,
but
Pace
was
firm.
Pace
contacted Geoffrey
Sackett,
who
then
phoned Prahm
to
reiterate
Pace's
message.
4. Because Dunne's account
is
written in the
third
person
its
authorship
is
open
to serious doubt. There
is
an
obvious
implication that
it
was
at least
co-authored
by Ole Prahm
himself.
12
Prahm was
not
available.
Sackett
left
a
message
with Prahm's
secretary
saying
that
neither
Pace nor
Garcia
would be
attending
the Friday meeting.5
Prahm
scheduled another
meeting
for the following
week.
He
did not
contact
Pace, Garcia or Sackett before
setting
the
meeting
time.
Again,
Sackett
claims
he
phoned
Prahm
to
say
that
the date
was
inconvenient,
that
he'd
like
to
be
consulted before
a new
date
was
set,
and
that neither
Pace
nor
Garcia
would
attend
a
meeting
without
him.
Prahm
then prepared
a
second
written
reprimand
for
Pace
which
contended
that Pace's refusal to attend
a
disciplinary
meeting with
him
without
union
representation
constituted "direct
insubordination".
Prahm made no
further
attempts to
arrange meetings,
testifying that
it
was
obvious
to
him
that
the
employees
and
their representative
did not
wish
to
meet
with
him.
This, despite
the
fact that
Sackett
had
sent
a
letter
to
Prahm
the preceding
week
complaining
that
Prahm would
not
return his
phone
calls
and would
not
meet
with
him.
5.
Prahm
contends
that this
message was
never
received, but
the witness
who
could
have
supported Prahm's
position, hissecretary,
who
allegedly
took the message,
was
not
called.
Sackett's
version
is credited
based
on
this fact
and on
thehearing
officer's
observation of the testimony of both
Prahm
and
Sackett.
13
Later,
on
June
14,
1978,
the
Organization
sent
a
letter
to
the personnel
director,
David
Pia,
with
a
copy
to
Ole
Prahm,
complaining
that
Prahm would
not respond
to
the
grievance
that
was
eventually
filed
by
the Organization
over
the April
21st
incident.
Meanwhile,
the Organization
had
been
pursuing
a
second
approach.
At
College
of
Marin
there
are,
in
fact,
two
grievance procedures
available
in
certain situations
and
they
are
not
mutually
exclusive.
A
meeting
was
arranged
for
May
4,
1978
through the
office
of
Les
Bailey,
the
affirmative action
officer
who
had
jurisdiction
over
the grievance procedure
dealing
with complaints
based
upon
race. Bailey thought
that
since
the complaint
alleged
both
racial
discrimination
and
general
harassment
it
would
be
beneficial to
have
a
meeting
involving
not only
Ole Prahm, Nick
Garcia,
and Johnny
Pace, but
also
the
direct participation
of the Organization,
presumably
hoping
that
the
need
to
invoke
the formal
grievance procedure
could
be
avoided
and an
informal
resolution
could
be
achieved.
Prahm
refused to discuss the Organization-related
grievance in the context of the affirmative action inquiry.
In
fact,
Prahm
refused to discuss
what had
occurred
on
April
21,
1978
at all.
The
meeting ended
with Bailey promising
to
investigate further.
It
was
that
same day
that
a
formal
grievance
was
filed
by
the Organization under the
alternate
procedure.
14
A
second
affirmative action inquiry
meeting
was
arranged
by
Bailey for
May
17,
1978,
at
a
time
when
supervisors
Leo Dunne and Mike Hughes
could
also
be
present.
At
this
meeting both
Dunne and Hughes were
questioned
extensively.
Ole
Prahm was
present.
Sackett revealed
at this
meeting
that
he
had found
the
time
clock
relied
upon by Dunne
on
April 21st
was
nine
minutes
fast.
Contradictions in the
stories
of various
participants
and
witnesses
were
explored,
however
nothing
was
resolved.
Subsequent
to
the meetings mentioned,
and
with
no
further
effort
being
made
to deal
with
the
matter,
on
June
26,
1978,
Ole
Prahm
issued
a
letter
of
reprimand, but
to
only
one
of the
three
employees
involved
Johnny
Pace. Copies.
however, were
sent to
Nick
Garcia
and
Geoffrey
Sackett, as well
as
Mike
Hughes.
In
its first
paragraph, Prahm's
letter
claims
that
Pace's actions
of April
21:
•..
demonstrate
wilful insubordination for
supervisory
staff
and
conduct
unbecoming an
employee
in the public service
.••
The
reprimand goes
on
to
state that:
I would
like to request that
you
immediately
take
steps to
comply
with the
policies
and
proceduresas adopted
by
the
Board
of Trustees of the MarinCommunity
College
District
or
you
will
be
subjectto dismissal.
The reprimand concluded
that:
It is
apparent that the incident
which took place
on
4/21/78, being a
verbal discussion
among
15
District
employees
not
related to
District
business,
was
clearly
on
District
time.
The
final
two
paragraphs
state
as follows:
Additionally,
you
failed
to
follow
my
directions
as
the
department
head
when
requested
to present
yourself
in
my
office
for
a
meeting
to discuss
the
issue.
A
second meeting
was
scheduled
at
your
convenience
during
your
regular
work
shift
and you
again
chose
not
to attend.
This
constitutes
wilful
insubordination
and shows
your
general
disrespect
for
supervision.
I would
simply
like
to point
out for
your
information
that
should
you
fail
to
comply
with
District
policies
and
procedures in the
future,
disciplinary
action
will
be
sought.
I
trust
I
can count
on
your
cooperation in the
future.
On
July
13, 1978,
Geoffrey
Sackett
complained
by
letter
to
the
District
that his
grievance
filed
over
the
reprimand
was
not being
processed, but
he
received
no
response.
The
District's
Classified
Employee Union
Activity
Rules
As
a
direct result
of the April
21,
1978
episode
described
above,
the
District
prepared
new
rules applicable
only
to
classified
employee
organizational
activity.
On
May
11,
1978,
Superintendent
John
Grasham
sent
the
following
memo,
prepared
by
Director of Personnel
David
Pia:
BACKGROUND
Attached the
Board
will
find Rules
for
Classified
Employee Union
Activity. After
an
altercation
which took
place
between a
supervisor
and a
member
of
a
labor organization
which
resulted in
a
threat of violence
and
physical contact,
it
was
determined
that
a
set of procedures needed
to
be
established in order to regulate classified
union
activity within the District.
These
rules for
procedure have been reviewed and approved by
the
16
Board Personnel Committee and the Marin County
Counsel.
RECOMMENDATION
It is the recommendation of the Superintendent
that the Board of Trustees adopt the attached
Rules for Classified Employee Union Activity to
be in effect until an exclusive bargaining agent
is elected for the classified units as determined
by the Public Employees Labor Relations Board
(PERB).
The rules which were subsequently approved by the
board of trustees on May 17, 1978, provided in part that:
Recruiting contact shall not be made with
employees while engaged in District work.
However, organizational representatives may meet
on District property with employees who are off
duty, limited to before or after work day or
lunch hours. The employees on coffee or rest
breaks are on paid status and such time is
included as duty time.6
The rules also provided for the identification of
organizers, restricted the distribution of literature, and
limited the posting of notices and the use of District
facilities.
6. No evidence was introduced which would tend to show that
employees actually worked during their breaks.
17
Within
a few weeks
of
the promulgation
of these
rules,
the
PERB
issued
its
unit
determination decision
(Marin
Community
College
District
(6/26/78)
PERB
Decision
No.
55),
establishing
three
classified
employee
units,
including the
skilled
trades
and
operations
unit
which
is
the
focus
of
this
decision.?
The
Termination
of
Johnny Pace
Johnny
Pace, as
noted above,
was
an employee
of
long
standing
with
the
District.
He
was
clearly identified
as
an
activist
in Organizational matters
by
District
management and
supervisors,
as well as
by
classified
employees.
Pace
had
taken
a
six
months
leave of
absence
(plus
vacation
time)
from
May
of
1977
through
December
of
1977.
Just
prior
to
this
time,
Pace began
to
seek medical
assistance
at
Kaiser
Hospital.
The symptom which had
caused
him
to
see
a
doctor
was
chest pain.
Pace
felt
it
might
be a
heart
problem
but the physician
he saw
told
him
it
was
stress
and recommended
that
Pace
find
a way
of
alleviating
tension.
At
that point
Pace
himself decided to take
a
leave of
absence
at
his
own
expense. Pace
said
Prahm was
"jovial"
about
granting the leave
when Pace approached
him and
that "the
word
was around the
campus
within
an
hour." Pace's request
was
approved not only by
Prahm,
but also
by David
Pia,
by
the
7. Notice
is
taken of
PERB
case
file
No. SF-R-14B,
the
representation case which culminated in Marin Community
College
District, supra.
18
college president and the board of trustees. At the hearing
Pace described his motivation in seeking the leave:
I suppose it was just a combination of things,
being a long-term employee, and what I felt to be
fairly respected in the college community. I
knew my work, I felt competent, and then to be
abused by not being allowed any overtime, laughed
at by employees that would see me working out of
my job description, moving furniture and packing
-- digging post holes, and you name it, and
generally looked down upon and given all of the
menial tasks, it was too much to bear, so I felt
getting away would do me some good and maybe the
situation would change in the meantime.
Pace returned from his leave and had the conversation
with Prahm described earlier where he indicated he hoped that
their relationship would improve because the adversarial aspect
had been removed. But Pace said he was told by at least five
other employees, whom he identified by name, that Prahm was out
to get him. One of these persons was the campus chief of
police.
The episode of April 21st followed. Pace received a
verbal reprimand and three written reprimands. The others did
not. Although both Pace and Garcia refused to attend two
meetings with Ole Prahm without the presence of Geoffrey
Sackett, only Pace was reprimanded. Only Pace was threatened
with discharge for insubordination.
Pace returned to Kaiser Hospital and began seeing
Dr. Joseph Engelman. Dr. Engelman's treatment of Pace began on
May 4, 1978 during the pendency of the April 21st related
19
grievance.
Dr.
Engelman
testified
at
the hearing
and
was a
credible
expert witness.
On
May
4th,
he examined
Pace
and found
him
to
be
"somewhat
striking
in
his
appearance, looking
quite physically
anxious."
Pace
told
Dr.
Engelman
then
that
over
the
last
couple
of
weeks
he
felt
tense
and
nervous,
that
his appetite
had
decreased,
that
he was
having muscle
aches
and
pains,
and
that
he was
fatigued
and had
poor
concentration.
Dr.
Engelman went on
to describe Pace's
responses
to
his
questions
about
the
basis
for these
symptoms,
Pace
indicating that
he'd
been on
the job
for
15
years,
and
that
there
had
been
a
change
in supervisors,
and
that
then
things
started getting
difficult
for
him. Then
the following
exchange
occurred:
Q. [By Mr. Hudak] Okay. Does
that pretty
well
summarize what he
said
about
the job?
Was
there
anything
else
of
any
significance that
you
can
recall that
he
said
about
the
job?
A. [By
Dr.
Engelman] Yeah.
He
spoke about
his
union
activities.
Q. What
did
he
say about
that?
A.
That he had been
involved in either
union
organizing or
furthering the goals of the union.
I
can't recall specifically,
but
he
felt like
that there
was
--
some
of that
harassment
was
secondary
to his
involvement.
Q. Did he
tell
you what kind of harassment he
was
suffering at
work?
A. Yes, he
did,
and I
can't recall specific
details.
20
Dr.
Engelman
diagnosed
Pace's condition
as
extreme
anxiety
and
depressed behavior.
Dr.
Engelman
indicated
that
his
approach
to
the treatment of cases
like
Pace's,
which he
described
as
"more
extreme
than
the
usual",
was
to
attempt
where
possible
to
relieve
the underlying
pressure
rather
than
treat
the
effects
of the tension
with medication. Apparently,
Engelman's
decision to
withhold drugs
was
not
made
because
he
felt
that
Pace's
symptoms were
trivial.
He
noted
that
Kaiser
doctors are
allotted
between
seven
and
ten
minutes per
patient
but
that
he
spent
thirty
minutes with
Pace because
"this
man
was
in
a
pretty
bad
state."
Dr. Engelman recommended
that
Pace remain
away from
his
job for
a few
days.
Pace remained
away from work
the
remainder
of
that
day,
returning
on
May
10th.
There
was no
evidence
to indicate that
he
informed
the
District
abopt
the
reason for
his
absence
before
his return,
nor
is
there
evidence
that
the
District
expected
him
to
do
so.
Upon
his return
he
completed
an
absence
form which had been
placed in his
box and
attached the treatment
and
diagnosis
verification
form
provided
to
him by
Kaiser Hospital
on
May
4th.
There
was no
evidence
presented to indicate that
the
sick leave procedure Pace
followed in
this
instance
was
criticized
in
any way.
Dr. Engelman saw Pace
at least
monthly from May
until
September 1978.
He
also
had some
telephone contact with Pace
during this time.
21
Pace took a two week vacation at the end of June, 1978
and was scheduled to return to work on July 17, 1978. On that
date, he arrived at work and went to see Mike Hughes, his
supervisor. Pace told Hughes that he was sick, that he was
going to see a doctor and that he did not know when he would be
returning. At that time, Pace had approximately three months
of sick leave accumulated. Hughes said something to the effect
that he would see Pace tomorrow, but Pace responded by saying
that he was not sure about that.
Pace saw Dr. Engelman that morning. The doctor
strongly urged him to again stop working for a while, feeling
that Pace's symptoms were work related. Pace returned home and
typed a letter to David Pia, the director of personnel for the
District. He hand-delivered copies of the letter that same day
to the offices of the District superintendent, the campus
president, the affirmative action officer, the president of the
District's board of trustees, as well as Mr. Pia. The text of
that letter reads as follows:
Due to pressure created as a result of
discrimination by Ole Prahm and his subordinates,
I am compelled to stay away from the Campus
temporarily because such pressure is causing
serious damage to my health and a hardship to my
family.
Sincerely yours, Johnny B. Pace, Sr.
Sick leave payments to Pace commenced immediately,
paying him from July 17th.
22
Pace,
still
under Dr.
Engelman's
care,
stayed
home
for
the
next
several
months.
A
doctor's
certificate
prepared
by
Dr.
Engelman on
August
2,
1978
includes the
following
notation
under
the
heading
of
comments on
findings:
"Depressed,
tearful
affect
and
agitated."
By
tearful
affect,
the doctor
testified
that
he meant
that
Pace
was
crying.
He
further
testified
that
as
of August
2,
Pace
was
"disabled
from
performing
the
duties
of his
work." His
diagnosis
was
"situational
anxiety
and
depression."
By
situational
anxiety,
he
indicated
that
he
meant
that
the
anxiety
he
observed
was
related to
a
particular
situation
as
opposed
to
general anxiety,
that
is
anxiety
having
no
specific
cause.
Dr.
Engelman
testified
that
Johnny Pace
would be
ready, in
his
opinion, to return to
work
as
a
carpenter in
September
of
1978,
but not
to return to
the
specific
work
environment
which had
generated the anxiety in the
first
place.
A form was
placed in Pace's
mail
box
at
the
college
during
his
absence,
to
be used
in
certifying that
he had
taken
sick leave.
The
District
policy
governing
sick leave (section
3085)
states:
All
employees
shall
submit absence
reports in
order to receive
payment
for
days
absent.
Classified
employees
absent
shall notify theirsupervisor.
It
shall
be
the responsibility ofthe supervisor to report absences monthly on
forms provided
by
the Business Office.
Pace, of course, did not pick
up
the
form from
his
box
since
he was not at
work. As
far as submitting an absence
23
report
in order
to qualify
for
sick
pay,
Pace
typed
his
letter
to Pia,
with
multiple copies
sent,
and
was
receiving
sick
pay.
Both Pace
and
Garcia
testified
that
the
sick
leave
procedure
followed
by
Pace
in
this
instance
conformed
to
the
practice
commonly
followed
in the
District
up
until
then.
District
witnesses
contended
otherwise, but
no
firm evidence
was
presented
by them
to substantiate
their
claim.
In
fact,
the
forms
introduced
into
evidence support
Pace's
and
Garcia's
view. Moreover,
the
one
previous episode involving
sick
leave
procedure noted
above
(the
absence
of
May
4
through
May
9)
strongly
suggests
that
either
Pace's
and
Garcia's
interpretation is
correct
or
that
Pace
was
justified
in
relying
on
the
acceptability
of
his
previously
uncriticized
absence
reporting
procedure.
Thus,
Pace's
and
Garcia's
testimony
on
this
matter
is
credited.
On
July
20, 1978, Ole Prahm
received
a copy
of Pace's
letter
to
David
Pia (indicating
he must
stay
away from campus
due
to discrimination
by Prahm and
his subordinates.)
Prahm
did not
show
this
copy
of the
Pace
letter
to
Mike
Hughes.a
On
August
1,
1978,
Prahm
wrote
to the
District's classified
personnel analyst,
Mr.
Robert Hughes,
as follows:
8.
Hughes
testified that this
was
the only instance
he couldremember where Prahm had
not shared correspondence of
this sort
with him. Hughes was
plainly upset
by Prahm's behavior.
24
I would like to request in accordance with Marin
Community College District Policies and
Procedures manual section 3085 that Johnnie [sic]
Pace be removed from the District payroll as a
result of not complying with notification of his
immediate supervisor as to an impending absence.
Johnnie [sic] Pace was scheduled for vacation
during the period of June 30th, 1978 until July
14, 1978 and was to return on Monday July 17,
1978 to report for work at 7:00 a.m. Johnnie
[sic] reported at approximately 7:00 a.m. on July
17, 1978 to Mike Hughes and informed him that he
had a doctors [sic] appointment that morning.
Neither Mike Hughes, Rita Meyer nor I have heard
from Johnnie [sic] Pace since that day as of the
above date of writing.
I received a copy of a letter addressed to Dave
Pia from Johnnie [sic] Pace on Thursday July 20,
1978 which stated that he was compelled to stay
away from campus as a result of alleged
discrimination by Ole Prahm and his
subordinates. I was not copied on this letter
nor was Johnnie's [sic] direct supervisor Mike
Hughes and this indirect method of notification
does not qualify under section 3085 Absence
reporting of the Marin Community College District
Policies and Procedures and as such has been
absent without leave since July 17, 1978.
Please make the necessary changes to the
personnel action form to reflect this absence.
On August 1 or August 2, 1978, the District processed
a personnel action form to terminate Pace's salary and fringe
benefit contribution by reason of absence without official
leave beginning July 17, 1978.
Pace was sent a notice on August 2, 1978 that "written
information of a derogatory nature will be placed in your
employee file" 10 days following the date of the notice,
referring to an attached departmental report of unauthorized
absence and to the personnel action form to effect his
25
separation from the active payroll and from District sponsored
benefit programs.
That same day, Dr. Engelman filled out another
doctor's certificate. The form indicated that Pace had been
his patient since May 4, 1978, had become disabled on June 29,
1978, and that the approximate date Pace's disability should
end sufficiently to permit his return was expected to be
September 1, 1978. The District claims that it never received
this form from Kaiser Hospital. However, on August 4, 1978, a
notice was sent from the Employment Development Department of
the State of California to the District, and received by the
District, indicating that Pace had filed a claim for disability
insurance benefits. (The District returned that form on
August 15, denying that there was a valid claim to their
knowledge, indicating that though Pace had been on unauthorized
absence from July 17, he would be compensated in the form of
sick leave, vacation or other type of payment "if claimant
immediately returns to work." This is taken to be an
affirmation that Pace was being compensated for his absence, in
the District's present contemplation, and that one available
form of compensation remained sick leave, i.e., that Pace had
not legally precluded this option as of August 15.)
On August 7, 1978, Mike Hughes sent Ole Prahm a
memorandum noting that he had not heard from Pace since
July 17, that Hughes had a great deal of carpentry work
scheduled for him, that this work was scheduled to be
26
accomplished before school opened, that there was a shortage of
carpentry staff and that this had placed a serious burden on
Hughes' ability to meet the requirements of the maintenance
department. Hughes indicated that he had "patiently awaited a
call or some notification from Johnny for the past three weeks,
and I have heard absolutely nothing." Hughes further stated
that he was in desperate need of carpentry assistance, and made
the following request: "Would you please make some
determination as to whether Johnny will be returning to work
and when, or find a replacement for him?"
That same day, Prahm wrote to Pia, referring to the
above letter from Mike Hughes and requesting Pia to "take steps
to permanently remove Johnny Pace from the payroll and process
steps to replace the vacant carpenter's position." This
memorandum stated that the maintenance department was unable to
fulfill its commitments as a result of Pace's absence and
needed a carpenter as soon as possible.
Geoffrey Sackett wrote to David Pia on August 10,
1978, as follows:
Re: Grievance filed on behalf of Jonnie [sic]
Pace & Nick Garcia
Dear Mr. Pia,
I have requested that the grievance cited above
proceed to the next step as outlined in the
Policies for Classified Personnel. To date this
has not been arranged and I feel that the College
is neglecting to proceed in good faith. Mr. Pace
has informed me that he is unable to continue
working under the tension and harassment
presently a result of Mr. Prahm's surveillance.
27
Mr.
Pace
has informed
the
Personnel
Office of
his
need
for
a
Leave
of
Absence
confirmed
by
his
physician.
If
I
receive
no
indication of
the
College's
desire to
proceed with
the grievance procedure
in
this
matter
I
shall
request
our
attorneys
to
proceed with
an
Unfair
Labor
Practice
before
thePublic
Employees'
[sic] Relations
Board.
Sackett
received
no
response
to
his
letter.
On
August
23, 1978,
Mike Hughes
submitted
a
report to
the
District
stating that
Pace
had
been
absent
from
July
17,
1978 and
noting the type
of
absence
as
"AWOL".
On
August 25, 1978,
Chancellor
David
M.
Sims
signed
charges for
Pace's dismissal
from employment.
The
charges
set
forth
the causes for
dismissal as:
Neglect
of duty,
namely,
unauthorized
absence;
willful violation
of rules
and
regulations
of
the
District,
namely,
purposeful
and wanton
disregard
of Section
3085
of
District policies
and
procedures regarding submission
of
absence
reports
and
notification
of supervisor
when
absent.
The
charges
also
contained
details
with
respect to
the
factual basis
for the charges.
The
charges
further stated that
on August
16, 1978,
Mr.
Irwin
Diamond,
the College of
Marin
president,
concurred in
and approved
the dismissal
recommendation.
The
charges
were
sent to
Pace about August 25, 1978.
The accompanying
letter
notified
Pace
that
he
could
demand a
hearing in writing
by
completing
and
signing the attached
demand
for
a
hearing
and
filing
it
with the chancellor within five days from
the date of
service of the notice.
The
letter further informed Pace
that
28
if
he
did not
request
a
hearing
within
the
specified
time
period, "the
order of the
president
shall
be
final"
and
he
would have waived
his
opportunity for
a
hearing.
The
letter
also
informed
Pace
that
he
could
be
represented
by
counsel.
President
Diamond
testified
that
before
he
concurred
in
the
recommendation
to
fire
an employee
of
15
years
who
had
such
a good work
record
that
it
was
important
to
him
to
investigate
the matter.
He
wanted
to
assure himself
that
Pace
understood the
situation
and
how
he was
likely
to
be
affected.
He
made two phone
calls
to
Johnny
Pace.
Neither
time
was
the
phone
answered.
He
did not pursue the matter
further.
Diamond
said
he was unaware
that
Pace
was
having
any
medical problems.
(This
despite
the
fact that
a
copy
of Pace's July
17
letter
to
Pia
saying
he was
staying
away
from
the
campus
due
to
medical
reasons occasioned
by
Prahm's harassment
had
been
hand-delivered to
him and he had
discussed Pace's
absence
two
or
three
times with
Pia.
No
probe
was
initiated
by Diamond
regarding
this allegation of harassment.)
Pace
received the charge
and
letter
and
the
earlier
August
2
"AWOL
Notice" but did not request
a
hearing or
otherwise contact the
District.
He
turned neither to
Geoffrey
Sackett
nor
to
Nick
Garcia. (Sackett
didn't learn of Pace's
fate until
the following month.) Pace
explained his reaction
to the charges thusly:
29
I read the document, and it caused me mental
distress, and I began to get ill again, and my
wife and I talked about it, and I was in no
condition to appear to contest it. My doctor had
gave me [sic] strict orders not to get all upset,
and to try to not think about the job for the
time being.
In a memorandum dated September 1, 1978, Chancellor
Sims transmitted to the board of trustees copies of the charges
for dismissal. The memorandum noted Pace's absence from work
from July 17 to the present and stated that his immediate
supervisor and the director of facilities management had no
contact from him. The memorandum further states that the
college president had tried on at least two occasions to reach
Pace by telephone, but all attempts had been without success.
The memorandum also referred to an attached copy of Pace's
July 17, 1978 letter to the director of personnel and stated
that "the accusations contained in the letter have not been
substantiated."
The memorandum further stated: "the loss of work
sustained by the District, the inordinate strain placed on
other employees, and the pattern of behavior of Mr. Pace add
weight to the charges filed." The memorandum recommended that
the charges filed by the president be considered; that Pace be
afforded a hearing if one were demanded; that in the absence of
a demand for hearing the board affirm the charges; and that
Pace be dismissed as a regular member of the classified service.
On September 6, 1978, at a regular board meeting, the
board of trustees approved the recommendation to dismiss Pace.
30
Nick
Garcia
attended.
There
was no
discussion.
On
September
7,
Robert
Hughes,
the
District's
classified
personnel
analyst, notified
Pace
in
writing of
this
action
and
transmitted Public
Employment
Retirement
System
(PERS) Form No.
167,
which had
to
be
completed
in order
to
vest Pace's contributions
with
the
retirement
system
or
withdraw
his
funds.
The
letter
stated that
Pace's
final
check
would be
withheld
until
he had
returned
any
district
property
currently
in
his
possession, including
any and
all
keys.
At
the
time
of
his dismissal,
Pace
was
still
receiving sick
pay.
The
District
claims
that this
was due
to
a
clerical error.
On
September
8,
1978,
the
District
processed
a
personnel
action
form
to terminate Pace's
employment. The form
noted
that his sick leave balance
was
523.5 hours
and
his
vacation balance
was 8
hours.
On
September
12, 1978, Pace
signed
and
returned the
PERS
form, checking
the
box
indicating that
he had
permanently
separated
from employment and
desired
a
refund of
his
accumulated
contributions.
It
was
about
this
time
that
Geoffrey
Sackett
inadvertently learned of the termination of
Johnny Pace
while
attending
an
election
meeting with
District
personnel
at
the
PERB
office in
San
Francisco. Sackett investigated and, in
October of
1978, asked
that
Pace be
returned to
work,
that his
time
off
be
treated as
a
leave of absence,
and
that all
references to terminations
and abandoning the job be removed
31
from
his
file.
No
action
was
taken
on
this
request.
The
charge
in
the
instant
case
(SF-CE-316) was
then
filed.
On
October
6,
1978,
the
District
controller
wrote
to
Pace
stating that
although
he had
been
absent without
leave
beginning
July
17,
1978,
a
full
paycheck
was
issued
for
July
resulting
in
an
overpayment
of
$503.08;
that
a
paycheck
was
issued for
August,
resulting
in
an
overpayment
of $1,077.39;
that
these
overpayments
were
offset
by 8
hours
of
earned
vacation
and an
erroneous deduction for Kaiser
health
coverage;
and
that
the
net
overpayment
was
$1,475.15.
The
letter
requested
that
Pace
"please
make a
check
payable
to the
Marin
Community
College
District
for
this
amount."
The
letter
also
referred
to
an
enclosed
PERS
statement of
his contributions
and
stated that
the
submission
of
his report
of separation
form
to
withdraw
his
PERS
contributions
would be
delayed pending
the
receipt
of
his
repayment
to
the
District.
Pace gave
the
District
a
check
in the
correct
amount,
filled
out the
necessary
forms and
withdrew
his
PERS
contributions.
Pace's
medical condition
improved and
before the
end
of the year
he had begun
to
work
part
time jobs
where he
could
find
them. (Dr. Engelman had
previously predicted that
Pace
would be
able to
resume work
about September
1,
though
not
under
the
same
supervision.)
As
noted
earlier,
Ole Prahm
left
District
employment on March 31, 1979. Leo Dunne
left
the
District in June of 1978. At
the hearing, Pace
testified that
he wished to return to
work and
that
he
felt
he was
physically
32
and
emotionally able
to
do
so
at
that
time.
Mike Hughes
noted
that,
despite his pleas,
his
department
has
not replaced
Johnny
Pace,
that
now
two
full
time
equivalent carpenters
are
working
where
three
worked
before.
CREDIBILITY DETERMINATIONS
The
testimony
of
Pace
and
that
of
Prahm
differ
in
many
respects,
only
some
of
them
material.
Moreover,
Pace's version
of
what happened
in the
yard
differs
from
that
of
Dunne.
Each
man's testimony
was
supported
by
other witnesses in
certain
respects,
giving
each
at least
a
superficial
aura of
credibility.
Having
personally
and
quite carefully
observed
the
testimony of
each
of the
witnesses,
the hearing
officer credits
the charging
party's
version in
every
crucial
aspect.
There
were numerous minor
discrepancies
between
the
two
sides
that
could
easily
be
ascribed to
good
faith
differences of
perception of the
same
reality.
Yet,
where
crucial
inconsistencies existed,
the hearing
officer
found
the
witnesses for
SEIU
to
be more
believable.
The
Organization's
version
had a
ring of
truth that
followed
from
its
consistency
and
inherent probability.
Direct evidence of anti-organizational
animus
is
33
seldom available. The self-serving declarations of neutrality
of witnesses such as Prahm and Dunne can hardly be considered
probative. 9 Hence, most of this testimony is disregarded
here.
Prahm's testimony as to facts was, at times,
contradictory and evasive, as for example, where he claimed
that he discussed with Sackett the time for setting a meeting
and then moments later admitted that he had not done so, with
no apparent realization that his testimony had changed. Prahm
had expressed surprise at the hearing, saying he learned that
Pace had a job stress related medical condition for the first
time there, yet he had plainly been aware of Pace's medical
situation before. (Certainly he had read Pace's memo of
July 17, 1978, if nothing else.)
Later, Prahm denied having seen Pace's memo until
confronted with a copy of his own memo to Pia which said, at
one point, "I received a copy of a letter addressed to David
Pia from Johnny Pace ... " He then reversed his field without
further explanation.
9. It is a well-established rule that the NLRB is free to draw
inferences from all the circumstances, and need not accept
self-serving declarations of intent even if they are
uncontradicted. (NLRB v. Pacific Grinding Wheel Co. (9th Cir.
1978) 572 F.2d 1343; Shattuck Denn Mining Corp. v. NLRB (9th
Civ. 1966), 362 F.2d 466; NLRB v. warren L. Rose Cast'"Ings, Inc.
(9th Cir. 1978) 587 F.2d 1005, 1008; Royal Packing v. ALRB et
al. (4th Cir. 2/4/80) 4 Civ. No. 18956.} It is appropriate
tfiat this rule be applied here.
34
What came through in Prahm's testimony was that it
amounted to a self-serving effort to downplay his negative
feelings toward Pace and his negative views regarding the
efficacy of organizational activity. Ole Prahm's distaste for
Johnny Pace is reflected throughout the record. Three
employees were involved in the April 21st episode, only Pace
was reprimanded. Two refused to attend Prahm's meeting, only
Pace was reprimanded. Pace was not only reprimanded, he was
reprimanded three times. Yet, Prahm insisted that his
relationship with Pace was positive.
Dunne's testimony was also less credible than that of
Pace, Garcia and Sackett. Pace's and Garcia's version of what
went on in the maintenance yard was more plausible and
consistent. The testimony of Mike Hughes supported their
version in certain key aspects. This, in turn, leads the
hearing officer to believe Garcia's statements that Dunne told
him only a week before the April 21st episode that he
"shouldn't be relying on Johnny so much, or on the union," and
that one of these days Garcia would get into such trouble that
"Johnny or the union are not going to be able to help you."
Such statements are consistent with other findings, further
undercutting the reliability of Dunne as a witness.
Other District witnesses had enough minor
discrepancies in their testimony as to cast some doubt on their
truthfulness as well.
35
On
the
other
hand,
the
testimony
of
Pace, Garcia
and
the other witnesses for the charging
party
was
shaken
in
no
materially
important
aspect
and
in
no way
that
would
call
into
question
their
veracity
or
their
perceptiveness.
Pace
himself
was a
particularly
believable witness.
His
sincerity
and
his
responsiveness,
especially
during
cross-examination,
marked him ',as
quite
different
from
Prahm and
Dunne,
particularly.
His
demeanor
throughout
the hearing
conveyed
a
seriousness
and a
sense
of personal
integrity that
were
unmistakable
10 .
His
testimony
was
fully
supported
by
that
of
Dr. Engelman,
who was
neither
a
party to
this
case
nor
the
agent
of
a
party.
Thus,
the version of the
facts related
by
the
witnesses for
SEIU
has been
credited
in large
measure and
is
incorporated into
the findings of fact
above.
What
remains
is
to
determine whether
the
facts,
as found,
constitute unfair
practices
under
the
EERA.
CONCLUSIONS
OF
LAW
1.
Did
the
District
Violate the
EERA
by
Enactment
or
Enforcement
of
its
Rules
for Classified
Employee Union
Activity?
The
Organization contends
that
the promulgation
of the
Classified
Employee Union
Activity
Rules
discussed
above
10. Pace did
testify that
he
held membership
in the facultysenate
and
then
later
disavowed
this
testimony
when
cross-examined.
The
hearing officer
draws no
conclusion
from
this inconsistency.
36
constituted
a
violation
of
section
3543.5(a),
(b) and (d)
of
the Act.
a.
The
Presumptive
Invalidity
of
the
Rules
An
organization
has
the
right
of reasonable access
to
areas
in
which
employees
work and
the
right
to
use
District
bulletin
boards, mail
boxes
and
facilities
for
meetings
and
announcements.
Richmond
Federation of
Teachers v.
Richmond
Unified
School
District
and Simi
Educators
Association
CTA/NEA
v.
Simi
Valley Unified
School
District
(8/1/79)
PERB
Decision
No.
99.
In
Richmond
the Public
Employment
Relations
Board
(hereafter
Board)
discussed the
limits
of "reasonable
regulation."
There, the
Board
noted
that "effective
and
non-disruptive organizational
communications
are
an
important
aspect of
employee
rights
'to
form,
join,
and
participate'
in
employee
groups
(section
3543),
by
serving as necessary
links
between employees
and
their representatives."
(Richmond,
supra,
p. 15.)
The
Board went on
to indicate that
employee
organizational
communication
should
be
"relatively
unhampered."
The Board
in
Richmond
then turned
to
an
analysis of
Republic Aviation
Corp.
v.
NLRB
(1945) 324
U.S.
793 [16
LRRM
11 620] where
the
Supreme
Court affirmed
a
finding of the
NLRB
that
an
employer's rule prohibiting
union
solicitation
on
11.
PERB
may use
federal labor
law
precedent
where
it is
applicable to public sector labor
law
issues.
(SweetwaterUnion High School
District
(5/23/76)
EERB
Decision
No.
4.
(PERB was
previously
known
as the Educational
Employment
Relations Board, or EERB). See
also Fire Fighters Union v.
City of Vallejo
(1974) 12 Cal.3d 611.)
37
company
premises during the
employee's
own
time
was
presumptively
invalid,
stating:
...
time
outside
working
hours,
whether
beforeor
after
work,
or
during
luncheon
or
rest
periods,
is
an
employee's
time
to
use
as
he
wishes
without unreasonable
restraint,
although
the
employee
is
on company
property.
It
is
therefore
not
within the province of
an
employer
to
promulgate
and
enforce
a
rule prohibiting
union
solicitation
by
an employee
outside of
working
hours,
although
on company
property.
Such a
rule
must
be
presumed
to
be an
unreasonable
impediment
to self-organization
and
therefore discriminatory in
the
absence
of
evidence
that special
circumstances
make
the
rule
necessary in
order
to
maintain production or
discipline.
The
Board,
relying
on
Republic
and Los
Angeles
Teachers
Union
v.
Los
Angeles County Board
of
Education
(1969)
71
Cal.2d
551, concluded
that:
"school
employer
regulation
under
section3543.l(b)
should
be
narrowly
drawn
to
cover
time,
place
and manner
of the
activity,
without
impinging
on
content unless
it
presents
a
substantial threat to peaceful school
operations."
Under
the cases
cited
above,
the
District's
imposition
of
a
broad
non-solicitation
ule as the keystone
to
its
Classified
Employee Union
Activity
Rules, covering
even
employee
coffee
and
rest
breaks,
makes them
presumptively
invalid.
Given
the Republic Aviation
test
adopted
by
the
Board, the
altercation of April
21, 1978, during
which no blows
were
struck
(and
at
the time of adoption of the rule the cause
of
which was an unresolved question to
be
the subject of
two
pending grievances) can hardly
be
considered as ample
justification for the immediate imposition of such a
harsh
38
rule.
An
isolated
incident
involving but
a few
people
and
subject to
serious question
as
to
whether
it
was
an
imposition
on work
time
and
whether
or not
it
was
provoked
is
an
inadequate
basis
for the establishment of
such
a
restrictive
rule.
See
American
Cast Iron
Pipe
Co.
(8th
Cir.
1979) 600
F.2d
132 [101
LRRM
2522]
where
eight serious
disciplinary
problems
per year
were
held
to
be
"fairly
minor"
and
an
inadequate
ground
for
a
similarly
restrictive
rule.
The
circumstances presented
here are hardly
so
grevious as
to
warrant
so
apparently
retaliatory
a
response.
Certainly
the
rules
fail
to
satisfy
the
test
of
being narrowly
drawn
as
to
time
and
place.
The
District
has
failed to
show by
a
preponderence
of
evidence
that
the rules
were
necessary
to
meet
a
substantial threat to
peaceful
school
operations.
Thus,
the presumption remains
unrebutted
and
the
rules
considered
as
a whole
are
found
invalid.
(This does
not
mean
that
the
District
could not adopt
any
rules
of
this sort,
but only
that
the
rules
as
drawn
are
invalid.)
b.
The Mootness
of the Rules
The
District
argues
that since the
rules
were
governed
by
the superintendent's
memorandum which
stated that
they
would
be
in effect "until
an
exclusive bargaining agent
is elected
for the
classified units
as determined
by
the Public
Employment
Relations Board," the rules expired
when
the Organization
became
the exclusive representative.
They
point out that the
rules
have not been enforced since that time.
39
However,
as noted
by
the
Board
in
Amador
Valley
Secondary
Educators
Association
v.
Amador
Valley
Joint
Union
High
School
District
(10/2/78)
PERB
Decision
No.
74,
mere
discontinuance of
wrongful conduct
does
not
ordinarily
end
the
underlying controversy absent evidence
that
the
party acting
wrongfully
has
lost
its
power
to
renew
its
conduct.
Since
the
District
neither
rescinded
nor disavowed
its
rules,
but
has
admitted only
the
current
discontinuance of
active
enforcement,
it
is
appropriate,
under
Amador
Valley,
supra,
that
the
validity
of the
rules
be
considered
here.
See
also
Paceco
v.
NLRB
(5th
Cir.
1979) 601
F.2d
180 [102
LRRM
2146] and
NLRB
v. National
Nursing
Home
Consultants
(6th
Cir.
1976) 572
F.2d
143 [98
LRRM
2516]"
c.
The
Nature
of the
Violation
The
Board
articulated
the
test
to
be employed
in
section
3543.S(a)
cases in Carlsbad Unified
School
District
(1/30/79)
PERB
Decision
No.
89.
The
test
was employed
in
Richmond,
supra. There, the
Board found
that denial of access
to the employer's
internal
mail system caused
"some harm"
to
employee
rights
under
the Act.
The
PERB
then held
that,
where
"some harm"
to
employee
rights
has been found, absent the
respondent's
showing
its
conduct
was a
result
of operational
necessity or circumstances
beyond
its
control,
the conduct
constitutes interference, restraint
or coercion in violation of
section 3543.S(a) of the
EERA.
40
Here, the absence of a successful showing that the
District's Union Activity Rules were narrowly tailored to meet
a substantial threat to peaceful school operations has already
been noted. Circumstances which would justify the
infringements imposed, for example, on employee time have
simply not been demonstrated. The District has cited no
authority, and none has been found by the hearing officer,
which justifies such conduct which plainly causes, and has
caused, "some" harm.
See also Essex International, Inc. (1974) 211 NLRB No.
112 [86 LRRM 1411] and Republic Aviation Corp. v. NLRB, supra,
324 U.S. 793.
Moreover, a violation can be found under the final
prong of the Carlsbad test quite independent of any finding of
harm. The final prong of the test reads as follows:
Irrespective of the foregoing, a charge will be
sustained where it is shown that the employer
would not have engaged in the complained-of
conduct but for an unlawful motivation, purpose
or intent.
The convergence of the Rules, the April 21st episode
and its aftermath, the explicit statement in the
superintendent's memo and the anticipated PERB unit
determination decision for classified employees create an
overwhelming inference of unlawful motivation. The rule simply
would not have been enacted but for the employees actively
seeking to organize. The District violated section 3543.S(a)
by responding as it did.
41
By
the
same
conduct
the
District
violated section
3543.5(b)
12
in
that
they
promulgated
rules
which,
on
their
face,
restricted
only
classified
employee
organizations
(i.e.,
classified
organizations
which
are
not
exclusive
representatives)
and
restricted
them,
without adequate
justification,
from
otherwise
protected
activity,
as noted
above. Republic
Aviation
Corp.
v.
NLRB,
supra.
No
violation
of section
3543.S(d)
was
argued
in
SEIU's
brief.
No
violation
is
found
based
on
the record.
Having found
the
rules
themselves unlawful,
it
is,
of
course,
unnecessary
to resolve the question of
their
application to find
a
violation.
However,
since
their
application
may
reflect
on
the
District's
attitudes
and
motives,
it
is
noted
that
the
rules
were
plainly selectively
applied (affecting
only
classified
employee
organizations),
and
were
promulgated
at
a
time
when a
membership
drive
had
started
and an
election
was
but
a few months away
(indeed, the
rules
were
designed
to expire
as
soon
as
an
exclusive representative
was
selected).
2.
Did
the
District
Violate Section
3543.S(a)
by
Reprimanding
and
then Discharging
Johnny Pace?
12. Section 3543.S(b)
makes
it
an
unfair practice to
deny
to
employee
organizations rights
guaranteed to
them by
the
EERA.
42
The
Oceanside
Carlsbad
test
noted
earlier is
controlling also
in
this
context.
Once
again, the
charge
of
a
section
3543.S(a)
violation will
be
sustained:
...
where
it
is
shown
that
the
employer
would
not
have
engaged
in the
complained
of
conduct
but
for
an
unlawful
motivation,
purpose
or
intent.
An
unlawful
intent
on
the
part
of
a
supervisory
employee can
be
attributed
to
the
District.
Prahm
was,
without
question,
a
supervisory
employee.13
The
gravamen
of
this
aspect of
SEIU's
charge
is that
the
District,
through
Prahm and
others, altered
working
conditions,
making them
so
difficult
and
unpleasant
as
to
cause
Pace
to
be
unable
to
work
thereunder
and
that
these
changes
were
motivated
by
Pace's organizational
activity.
These
allegations
add
another
dimension
to
the charge
of
discrimination.
In
cases
where an employee
has
left
work,
it
is
important
to consider the
vulnerability
any employer would have
to
specious claims
by
disgruntled or
disaffected
former
employees
if
claims
were
entertained
lightly.
Accordingly, the
NLRB
and
the
courts,
when
considering
allegations
of
what has
come
to
be
called
a
"constructive discharge"
have imposed
13. There can be no
doubt
that
Prahm's conduct
is attributableto the District
in
this instance.
See Antelope Valley
Community
College
District
(7/18/79)
PERB
Decision
No.
97.
43
rather stringent
tests.
To
warrant
a
finding
that
a
constructive
discharge
has
taken
place,
SEIU
will
be
required
to
show
that
Pace's
working
conditions
were
altered
in
such
a
substantial
fashion
that
a
reasonable person
could
not
be
expected
to
remain
at that
employment,
that
these
changes
were
a
result
of
Pace's protected
activites,
and
that
the employer's
motive
was
improper. See
Federal
Collectors
(1973) 201
NLRB
944 [82
LRRM
1686],
citing
Montgomery Ward and Co. (1966) 160
NLRB
1729,
1742 [63
LRRM
1249]
enf'd
in
part
(8th
Cir.
1967)
385
F.2d
760 [66
LRRM
2689].
a.
Changes
in
working
Conditions
Ole
Prahm
began
altering
Johnny
Pace's
working
conditions
almost immediately
upon
Prahm's being
employed by
the
District,
as demonstrated
by
the evidence.
The
District
lodged
a
standing objection
at
the
time
of
the hearing
to
the
introduction of
any
evidence having
to
do
with
Pace's
employment
relationship
more
than
six
months
prior
to
the
filing
of charges in
this
case.
The
objections
were
overruled, despite the
wording
of section
3541 which
states:
[T]he board
shall
not
...
issue
a
complaint
inrespect of
any
charge based
upon an
alleged
unfair practice occurring
more
than
six
months
prior to the
filing
of the charge.
In construing the analogous
section of the Labor
Management
Relations
Act
(hereafter
LMRA),
section l0(b)
[29
u.s.c. sec. 160(b)], the United
States
Supreme
Court held in
Local Lodge 1424 v.
NLRB
(1960) 362 U.S. 411 [45
LRRM
3212]
44
that
in
certain
circumstances
section
l0(b)
is
to
be
considered
a
rule
of
evidence as well as
a
statute
of
limitations.
The
Court held
that
events
prior
to the
six
month
limit
are
to
be
allowed
in,
inter
alia,
when
they
explicate present actions
that
may
themselves
be
unfair
practices,
saying:
[W]here
occurrences within the
six-month
limitations
period in
and
of
themselves
may
constitute,
as
a
substantive matter, unfair labor
practices
..•
earlier
events
may
be
used
to
shed
light
on
the
true character
of matters occurring
within the
limitations
period
....
(Local
Lodge 1424
v.
NLRB,
supra,
45
LRRM
at
p.
3214.)
On
the
basis of
Local
Lodge
it
is
clear that
all
admitted evidence
can
be
considered.
The
District's
renewed
argument
is
rejected.
When
the evidence
is
considered as
a
whole
it
is
apparent
that
Pace's
working
conditions
were
altered
by
Prahm's conduct
which
was
supported,
if
not
14
endorsed,
by
the
District.
b.
Substantiality
of the
Change
In
Sterling
Corset
Co. (1938) 9
NLRB
858 [3
LRRM
344]
the National
Labor
Relations
Board
(hereafter
NLRB)
found
that
working
conditions
could
be made
intolerable
by
incremental
changes. Accord, Newberry Lumber and Chemical
Co. (1939) 17
NLRB
795,
808 [5
LRRM
342]
enfd. as modified (6th
Cir¢ 1941) 123
14.
See
also
Communication Workers v.
NLRB
(2d
Cir.
1975) 520
F.2d 411 [89
LRRM
3028]
cert
den. 423
U:S:-1051
[91
LRRM
2099};
NLRB
v. Longshoremen, Local
30
(9th
Cir.
1977) 549
F.2d 698 [94
LRRM
3072]
~
Beckett Aviation Corp. (1975) 218
NLRB
238 [89
LRRM
1341].
45
F.2d 831 [9 LRRM 479]~ Reliance Mfg. Co. (1945} 60 NLRB 946,
951-2 [16 LRRM 13].
Johnny Pace made repeated efforts to improve relations
between himself and Prahm. The decision to take a six month
leave of absence was certainly not something done without
serious thought and personal sacrifice. Pace's decision to
withdraw from his position within the Organization in a vain
effort to produce harmony cannot be ignored. The orchestrated
harassment which began in April through the offices of Leo
Dunne, Ole Prahm's supervisor of systems, following as it did
the exchange of olive branches in January, plainly exacerbated
the level of Pace's tension and increased the feelings of
mistrust and futility. Pace was further reprimanded for
demanding Organizational representation of his own choosing in
dealing with Prahm and Dunne's charges 15 and was confronted
for the first time with a supervisor who "stonewalled" him at
the meeting with the affirmative action officer, both of which
events, whether or not otherwise unlawful, were evidently
calculated to isolate Pace and break his resistance further.
It is concluded that this chain of events revealed to Pace for
the first time the extent of Prahm's enmity and intractability
and constituted a substantial change in working conditions,
which served to verify the rumor that Prahm was out to get
15. See Robinson v. State Personnel Board (1979) 97 Cal.App.3d
994 [159 Cal. Rptr. 222]. See also NLRB v. Weingarten (1975)
420 U.S. 251 [88 LRRM 2689].
46
him.
The
fact that
the grievance
filed
by
Pace
was
not
processed
from
step
one
to step
two from
May
17,
1978
through
Pace's departure exactly
two
months
later
could only
add
to
Pace's
frustration.
Clearly, Pace's
relationship
with
Prahm
and
the
District
had
reached
a new
low.
c.
The
Reasonableness
of Pace's
Departure
SEIU
clearly
demonstrated
at
the hearing
that Pace's
departure
was
based
on
competent medical
advice.
It
was shown
that
Pace
resisted
the
recommendation
to
leave
and
did not
act
impulsively
when he
finally
conceded.
Pace's
seeking medical
advice
and
the
doctor's
diagnosis are strong
evidence
in
his
favor.
Dodson's Market,
Inc.
(1971) 194
NLRB
192 [78
LRRM
1628]
enfd. (9th
Cir.
J973)
553
F.2d
617
[83
LRRM
2987].
From
the date of
his
departure
to
the date of
his
discharge, the
District
did nothing
to
address the
conditions
which
precipitated his leaving,
though
they
were
unquestionably
on
notice
that
Pace
considered himself to
be
ill
as
a
result
of
harassment
and
discrimination.
Whatever
perfunctory
efforts
to
reinstate
him were made by
the
District
created
no
obligation
on
Pace's part
because they
failed to
address the conditions
which had
led to his justified
departure.
The
status
quo
ante
47
remained. Curtis Mfg. Co. (1971) 189 NLRB 192 [77 LRRM 1220] ~
Donahue Beverages (1972) 199 NLRB 581, 586 [81 LRRM 1580] .16
Geoffrey Sackett's uncontroverted and credited
testimony regarding his unanswered October demand that Pace be
restored to his position persuasively demonstrates that any
proffered reinstatement would be on the District's own terms or
would only be acceptable without Organizational intervention.
In sum, the District's resolve to coerce Pace persisted
undiminished through the time that the instant charge was
filed. The reasonableness of Pace's original action and his
continuing nonresponsiveness are amply established. Curtis
Mfg. Co., supra, at p. 201.
d. Linkage to Protected Activi1:X_
The nexus between Pace's protected activity and his
departure is obvious. It is clear from the record that Prahm
manipulated Mike Hughes, denying him information about the
circumstances of Pace's departure and then using Hughes'
resulting distress to provide a "business justification" for
replacing Pace.
The hostility of Prahm toward Pace's organizational
activity is well established from the record. Prahm
effectively undermined and frustrated Pace's efforts to secure
16. Compare Jumping Jacks Division, U.S. Shoe (1973) 206 NLRB
88 [84 LRRM 1218] where a union adherent was advised by her
doctor to seek a transfer to alleviate aggravation. The
employee's departure was held voluntary because the aggravation
was not within the employer's power to remove.
48
representation
at
the
disciplinary
hearings.
In
addition,
he
reprimanded Pace
for
failure
to attend
meetings
without
his
representative
after
having
made
representation
difficult.
The
District's
position that
Pace
was
rightfully
discharged for
failure
to personally
notify
Mike Hughes
of
his
absence
is
rejected.
The
reason given for discharge
was
but
a
pretext.
The
timing
of
the
move
against
Pace
is
also
telling.
The
Organization's stalwart
was
discharged
exactly
midway
between
unit
determination
and
the
unit election.
The
signal to other
employees which
that
timing undoubtedly
conveyed must
be
considered as
a
motive
for
the
District's
17
position.
e.
Conclusions
On
the
basis
of the
analysis
above,
it
is
concluded
that
Pace
was
constructively
discharged.
Further,
under Oceanside
Carlsbad, supra, the
District
failed
to adequately rebut the inference
that
Pace would have
been
terminated
had he
not
been an
organizational
activist
and
an
irritant
to
Ole Prahm
for
that
reason.
17. Regarding the propriety of
drawing
inferences
from
thetime
of
such
actions
under somewhat
different circumstances,see Big "G" Corp. (1976) 223
NLRB
1349 [ 92
LRRM
1127] ;
City ofBoston and
Michelle
McMullin (Mass.
MLRC
12/28/78)
5
MLC
1557,
1559; County
of
Bucks (Penn.
PLRB
10/11/79)
10 PPER 10280~ and,
Salem County Board
for Vocational Education
(N.
J.
PERC
5/23/79) 5 NJPER 10135.
49
Granting,
arguendo,
that
Pace
left
of
his
own
accord
and
did not provide proper
notice,
the
District's
argument
that
it
was
justified
in
releasing
Pace
still
falls
flat.
Though
the
District
made
reference
at
the hearing
to
other
classified
employee
discharges
based
on
absence
without
leave,
it
failed
to
show
sufficient similarity
of
circumstances
to
warrant
an
inference of
neutrality
here.
Further,
the business
justification
rationale
is
doubly
unpersuasive
since
less
oppressive
alternatives
were
available,
Pace
was
not quickly
replaced,
and
Pace
was
paid
sick
leave
up
to
the
time
of
his
actual discharge.
In
summary,
the
evidence
clearly establishes
all
of
the elements necessary
to find
that
Johnny Pace
was
constructively
discharged
on
July
17,
1978,
and
that
this
act
was
in violation
of
section
3543.S(a).
REMEDY
Section
3541.S(c)
of the
EERA
sets forth
the
PERB's
remedial
authority in unfair practice cases.
It
provides:
The
board
shall
have
the
power
to issue
a
decision
and
order
directing
an
offending partyto cease
and
desist
from
the unfair practice
and
to
take such
affirmative action, including but
not limited to the reinstatement of
employees
with or without
back pay, as will effectuate the
policies of this chapter.
This section is similar to section
lO(c)
of the
NLRA
and,
therefore, in fashioning the appropriate
relief,
cognizance
is
taken of applicable
NLRB
precedent.
50
(Fire
Fighters
Union
v.
City of
Vallejo,
supra,
12
Cal.3d
608.
In
the
instant
case,
it
is
concluded
that
the
Marin
Community
College
District,
through
its
agent
Ole
Prahm
and
others,
violated section
3543.5(a)
of the
EERA
by
harassing,
discriminating
against,
and
coercing
its
employee, Johnny
Pace,
because
of
his exercise
of
his rights
under
the
Act.
The remedy
set
forth
for
this
violation
is
"designed
to
restore,
so
far
as
possible,
the
status
quo which would
have
obtained but for the
wrongful
act."
(NLRB
v. Rutter-Rex
Mfg.
Co.,
(1969) 396
U.S.
258 [24
L.Ed.2d 405,
72
LRRM
2881]
reh.
den.
397
U.S.
929 [25
L.Ed.2d
109]
.) Therefore,
to
fully
compensate Pace
and
to
place
him
in the
position
he would
have
been
in but
for the
District's
actions,
it
is
appropriate to
order
that
he be
reinstated,
on
request,
as
a
carpenter
at
Marin
Community
College.
This
relief is
consistent
with
remedial
orders of other
state
public
employment
relations
boards
and
commissions
involving reinstatement of wrongfully
discharged or
transferred public
employees. (City
of
Boston
(MA
1978) 5
MLC
1558;
City of Elizabeth
(NJ 1979) 5 NJPER
10048:
Freeport
Union
Free School
District
(NY
1979) 12
PERB
3038;
City of
Green Bay Board
of
Education v. Wisconsin
Employment
Relations
Commission (1976) 92
LRRM
3170.)
Pace
is
also entitled to
a back pay award which
will
compensate him
that
amount he would have earned
had he been
employed by
the District in his position as
a
carpenter,
including
all additional benefits of employment, and without
51
prejudice to
his seniority
or
other
rights
and
privileges.
(F.
w.
Woolworth Co. (1950)
90
NLRB
289 [26
LRRM
1185];
NLRB
v.
Seven-Up
Bottling
Co. (1953) 344
U.S.
344
[31
LRRM
2237]~
Reeths
Puffer
School
District
(MI
1979)
MERC
LO-1979,
Vol.
XIV,
p.
37;
City of Elizabeth, supra.) Consistent
with
NLRB
precedent,
this
amount
should
include
interest
on
the
award
(Isis
Plumbing
&
Heating
Co. (1962) 138
NLRB
716
[51
LRRM
1122])
in
the
amount
of
7
percent
per
annum.18
This
amount
will
be
offset
by
any
earnings received
by
Pace
during
the period
beginning
on
or about
July
17,
1978,
the date
he
was
constructively
discharged,
until
such time
that
the
District
offers
him
the
position
ordered
herein.
Deduction
of
Pace's
interim earnings
is
in
accordance with
NLRB
practice.
(Big
Three
Industries
(1975) 219
NLRB
No. 159 [90
LRRM
1147]
.)
18.
The
California Constitution,
article
xv,
section 1,
prescribes
a
rate
of
interest at
7
percent
per
annum.
See
also
Florida Steel
Corp.
(1977) 231
NLRB
No. 117 [96
LRRM
1070].
52
Having
also
found
that
the
District
violated section
3543.S(a}
and
(b)
by
the imposition
of
an
overbroad
set
of
"Union
Activity
Rules"
in
a
discriminatory
manner and
in
reprisal
for protected
activity,
the
Classified
Union
Activity
Rules
passed
by
the
board
of
trustees
of the
District
on
May
17,
1978
will
be
ordered
rescinded,
effective
the
date
of
their
enactment,
and
the
board
of
trustees will
be
ordered
to
refrain
from
infringing
on employee
or
organizational
rights
"in
any
like
or
related
manner"
in
violation
of
sections
19
3543.S(a}
and
(b).
Finally,
it
is
appropriate
that
the
District
be
required to post
a
copy
of the attached
Order.
Posting
will
provide
classified
employees
with
notice
that
the
District
has
acted in
an
unlawful
manner and
is
being
required to cease
and
desist
from
the
activity.
It
effectuates
the purposes
of
the
EERA
that
employees be
informed
of the
resolution of
this
controversy
by
means
of
a
posting requirement.
Placerville
19. In
view
of the breadth
and
extent of the unfair practices
committed
in these
cases, the
District will
be
ordered
to
cease
and
desist
from
"in
any
like
or
related
manner"
infringing
on
rights protected
by
the sections of the
EERA
which were
violated.
Hickmott Foods (1979) 242
NLRB
No. 177
[101
LRRM
1342].
53
Union
School
District
(9/18/78)
PERB
Decision
No.
69.
A
posting
requirement
has
been
upheld
in
a
California
case
involving
the
Agricultural
Labor
Relations
Act,
Pandol
and Sons
v.
ALRB
(1979) 98
Cal.App.3d 580,
587.
Posting
orders of the
NLRB
have been
upheld
by
the
United
States
Supreme
Court,
NLRB
v. Express
Publishing
Co. (1941) 312
U.S.
426 [8
LRRM
415].
PROPOSED
ORDER
Upon
the foregoing
findings
of
fact,
conclusions
of
law and
the
entire
record of
this
case,
it
is
found
that
the
Marin
Community
College
District
has
violated
Government Code
section
3543.5(a)
and
(b).
IT IS
HEREBY ORDERED
that
the
District
and
its
representatives
shall:
1.
CEASE
AND
DESIST
FROM:
a. In
any
like
or
related
manner
imposing
or
threatening to
impose
reprisals
on Johnny
Pace
or
other
employees,
discriminating or threatening to
discriminate against
Johnny Pace
or other
employees,
or otherwise
interfering
with,
restraining
or coercing
Johnny Pace
or other
employees because
of
their exercise of
their
right to
form,
join,
and
participate
in the
activities
of
employee
organizations of
their
own
choosing for the purpose of representation in
all
matters of employer-employee
relations.
54
b. In any like or related manner denying to
employee organizations rights guaranteed to them
by Government Code section 3540 et seq.
c. Enforcing the Classified Union Activity Rules
passed by the board of trustees of the District
on May 17, 1978.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH IS
NECESSARY TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL
EMPLOYMENT RELATIONS ACT:
a. Immediately offer to fully reinstate
Johnny Pace to his former jobw or, if the job no
longer exists, to a substantially equivalent
position, without prejudice to his seniority or
other rights and privileges previously enjoyed;
b. Make Johnny Pace whole for any loss of pay or
other benefit(s) he may have suffered by
tendering to him a back pay award which
constitutes an amount equal to that which he
would have been paid absent his unlawful
constructive discharge on July 17, 1978 until the
date of the offer of reinstatement, this total
amount to be offset by Pace's earnings as a
result of other employment during this period,
and with payment of interest at 7 percent per
annum of the net amount due;
55
c.
Post copies of the
Notice
attached
as
an
appendix
hereto
at
all
work
locations
at
the
Marin
Community
College
District
where
notices to
employees
customarily are placed,
immediately
upon
receipt
of
the
final
decision.
Such
posting
shall
be
maintained
for
a
period of
thirty
(30)
consecutive calendar
days.
Reasonable
steps
should
be
taken
to
insure
that
said
Notices are
not
altered,
defaced or covered
by any
other
materials;
and,
d.
At
the
end
of the posting period
notify
the
San
Francisco
Regional
Director of the
Public
Employment
Relations
Board,
in writing, of the
action the
District
has
taken to
comply
with
this
Order.
It
is
further
ORDERED
that
the
Classified
Union
Activity
Rules passed
by
the board
of
trustees of the
District
on
May
17,
1978 be
rescinded,
effective
the
date of
their
enactment.
It
is
further
ORDERED
that
the
instant
charges be
dismissed in
all
other respects.
Pursuant to California Administrative
Code,
title
8,
part III,
section
32305,
this
Proposed Decision and Order
shall
become
final
on April 11 , 1980
unless
a
party files
a
56
timely statement of exceptions.
See
California
Administrative
Code,
title
8,
part
III,
section
32300.
Such
statement
of
exceptions
and
supporting
brief
must
be
actually
received
by
the
Executive
Assistant to
the
Board
at
the Headquarters
Office
of the Public
Employment
Relations
Board
in
Sacramento
before
the close of
business (5:00
p.m.)
on
April
11
,
1980, in
order to
be
timely
filed.
See
California
Administrative
Code,
title
8,
part
III,
section
32135.
Any
statement of exceptions
and
supporting
brief
must
be
served, concurrent
with
its
filing,
upon
each
party to
this
proceeding. Proof
of
service
shall
be
filed
with
the
Board
itself.
See
California
Administative
Code,
title
8, sections
32300 and
32305,
as
amended.
DATED:
March
21,
,
1980
---------
(
MICHAZ:17
TONS
Hea 1ng
Officey-
I~~
57
APPENDIX
NOTICE
TO
CLASSIFIED
EMPLOYEES
POSTED
BY
ORDER OF THE
PUBLIC
EMPLOYMENT
RELATIONS
BOARD
An
Agency
of
the
State
of
California
After
a
hearing in
Unfair
Practice
Cases
No.
SF-CE-297, SF-CE-298, and SF-CE-316,
Service
Employees
International
Union,
Local
250
and
Local
400,
AFL-CIO
v.
Marin
Community
College
District,
in
which
both
parties
had
the
right
to
participate,
it
has
been found
that
the
Marin
Community
College
District
violated section
3543.S(a)
and
(b}
of the
Educational
Employment
Relations
Act
(EERA}
by
harassing,
discriminating against,
and
coercing
its
employee, Johnny
Pace,
because
of
his
exercise of
his rights
under
the
Act
and by
imposing
an
overbroad
set
of
"Union
Activity
Rules"
(dated
May
17,
1978) which
unlawfully
restrict
organizational
activity.
As a
result
of
this
conduct,
we
have been
ordered to
post
this
Notice,
and
we
will
abide
by
the following:
1.
WE
SHALL CEASE
AND
DESIST
FROM:
a. In
any
like
or
related
manner
imposing
or
threatening to
impose
reprisals
on Johnny Pace
orother
employees,
discriminating or threatening
todiscriminate against
Johnny Pace
or other
employees,
or otherwise
interfering
with,
restraining
or coercing
Johnny Pace
or other
employees, because
of
their exercise of
theirright to
form,
join,
and
participate in the
activities of
employee
organizations of their
own
choosing for the purpose of representation in
all
matters of employer-employee
relations.
58
b. Enforcing
the
Classified
Union
Activity
Rules
passed
by
the
board
of
trustees
of the
District
on
May
17,
1978.
c.
In
any
like
or
related
manner
denying
to
employee
organizations
rights
guaranteed
to
themby
Government
Code
section
3540,
et
seq.
2.
TAKE THE
FOLLOWING
AFFIRMATIVE
ACTION
WHICH
IS
NECESSARY
TO
EFFECTUATE
THE
POLICIES
OF
THE
EDUCATIONAL
EMPLOYMENT
RELATIONS ACT:
a.
Immediately
offer
to
fully
reinstate
Johnny Pace
to his
former
job,
or,
if
the job
no
longer
exists,
to
a
substantially
equivalent
position,
without
prejudice to his
seniority
or
other
rights
and
privileges
previously
enjoyed;
b.
Make
Johnny Pace whole
for
any
loss
of
pay
or
benefit{s)
he may
have
suffered
by
tendering
to
him a
back pay
award which
constitutes
an amount
equal
to that
which he would
have
received absent
his
unlawful
constructive
discharge
on
July
17,
1978
until
the
date of
the
offer
of
reinstatement,
this total
amount
to
be
offset
by
Pace's earnings as
a
result
of other
employment
during
this
period,
and
with
payment
of
interestat
7
percent
per
annum
of
the
net
amount
due.
In
addition,
we
note
that
the
classified
Union
Activity
Rules passed
by
the
District's
board
of
trustees
on
May
17,
1978 have been
rescinded.
Dated
MARIN
COMMUNITY
COLLEGE
DISTRICT
By
-----------------
THIS IS
AN
OFFICIAL NOTICE. IT
MUST REMAIN POSTEDFOR
30 CONSECUTIVE CALENDAR DAYS FROM THE DATE OF
POSTING
AND MUST NOT BE DEFACED, ALTERED OR COVEREDBY ANY
MATERIAL.
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