Mt. San Antonio Community College District (PERB 0224E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MT. SAN ANTONIO COLLEGE FACULTY
ASSOCIATION, CTA/NEA,

Charging Party, Case No. LA-CE-541
6

MT. SAN ANTONIO COMMUNITY COLLEGE
DISTRICT,

Respondent. PERB Decision No. 224

June 30, 1982
MT. SAN ANTONIO COLLEGE FACULTY
ASSOCIATION, CTA/NEA,

Charging Party, Case No. LA-CE-547

Va

MT. SAN ANTONIO COMMUNITY COLLEGE
DISTRICT,

Respondent.

ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee

Appearances: A. Eugene Huguenin, Jr., Attorney for

Mt. San Antonio College Faculty Association, CTA/NEA;

John J. Wagner, Attorney (Wagner & Wagner) for Mt. San Antonio
Community College District.

Before Gluck, Chairperson; Jensen, Morgenstern and Tovar,
Members.

DECISION
This case is before the Public Employment Relations Board
(PERB or Board) on exceptions taken by the Mt. San Antonio
Community College District (District) to the proposed decision
of a PERB hearing officer attached hereto. In that decision,

the hearing officer sustained the charge of the Mt. San Antonio

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College 	Faculty Association, 	CTA/NEA, 	(Association) 	that 	the
District 	violated 	subsections 	3543 .5 (a), 	(b) 	and 	(c) 	of 	the
Educational 	Employment 	Relations Act 	(EERA 	or 	Act) 	and
dismissed 	the Association's 	allegation 	that 	the District
violated 	subsection 	3543.5(d). 1
The 	Board 	has 	reviewed 	the 	record 	in 	light 	of 	the
District's 	exceptions. 	We 	find 	that 	the 	hearing 	officer's
procedural 	history 	and 	findings 	of 	fact 	are 	free 	from
prejudicial 	error 	and 	are 	adopted 	as 	the 	findings 	of 	the
lEERA 	is 	codified 	at 	Government Code 	section 	3540,
et 	seq. 	All 	statutory 	references 	in 	this 	decision 	are 	to 	the
Government Code 	unless 	otherwise 	noted.
Subsections 	3543.S(a), 	(b), 	(c) 	and 	(d) 	provide:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an exclusive 	representative.
(d) 	Dominate 	or 	interfere 	with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in 	any 	way 	encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
2

Board. 	We 	affirm 	the 	hearing 	officer's 	conclusions 	of 	law
insofar 	as 	they 	are 	consistent with 	our 	decision 	set 	forth
below.
DISCUSSION
As more 	fully 	described 	in 	the 	attached 	decision, 	the
hearing 	officer 	found 	that 	the District 	violated
subsection 	3543.S(a) 	of EERA by 	disciplining 	two 	teachers 	who,
at 	a 	graduation 	ceremony, 	distributed 	leaflets 	which 	were
critical 	of 	the 	District's 	fiscal 	management.
In 	accessing 	the propriety 	of 	the District's 	disciplinary
action, 	the 	Board 	must 	first 	determine whether 	the 	conduct 	of
the 	teachers 	who 	distributed 	leaflets 	at 	the 	graduation
ceremony 	was 	protected by 	prov 	ions 	of 	the EERA. 	In 	that
rega 	, 	section 	3543 	of 	the Act 	grants 	public 	school 	employees
the 	right 	to 	form, 	join, 	and 	participate 	in
the activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations.
We 	conclude 	that, 	while 	the 	handbill 	itself 	did 	not
specifically 	name 	or otherwise 	identify 	the Association 	as 	the
responsible 	author, 	the record 	is 	clear 	that 	the document was
the product 	of 	the Association. 2
2since 	the Association 	could 	easily have 	avoided 	any
ambiguity 	as 	to 	its 	authorship 	of 	the 	distribution, 	we 	view 	its
failure 	to 	so 	identify 	itself 	with 	some 	displeasure. 	However,
as 	noted 	by 	the 	hearing 	officer, 	the 	writing 	and 	distribution
of 	the 	leaflet 	was 	planned 	and 	executed 	by 	the Association's
action 	committee. 	The Association 	specifically 	authorized 	and
3

The District's exceptions 	to 	the 	hearing 	officer's
decision, 	however, 	reassert 	its 	central 	argument 	that 	the
content 	of 	the 	handbill 	constituted 	disloyalty 	and 	thus 	should
not 	have 	been 	afforded 	protection 	as 	organizational 	activity.
The 	case 	on which 	the District 	relies 	is NLRB 	v. 	Electrical
Workers 	(Jefferson Standard 	Broadcasting Co.) 	(1953) 	346 	U.S.
464 	[33 	LRRM 	2183]. 	We 	find 	the 	rationale 	set 	forth 	in
Jefferson Standard 	to 	be 	inapplicable 	in 	this 	case.
The Jefferson Standard 	case 	involved 	the public
distribution 	of 	a 	handbill 	by 	nine 	technicians 	which 	sharply
attacked 	the 	quality 	of 	the 	company's 	television 	broadcasts.
The Supreme Court 	contrasted 	that 	public 	appeal 	with 	the
union's 	earlier 	picketing 	effort which 	charged 	the 	company 	with
unfairness 	to 	technicians 	and 	which 	specifically 	referred 	to
their 	labor 	controversy. 	The 	handbills distributed 	to 	the
public 	in 	the Jefferson case were 	found 	to 	be 	i:mpermissibly
disloyal 	to 	the 	employer 	because 	they 	omitted 	reference 	to 	the
labor 	controversy and 	attacked 	the policies 	of 	the broadcasting
company 	which 	had 	no 	discernible 	relationship 	to 	that
controversy. 	The 	rule 	of 	Jefferson Standard 	is 	to 	deny
admitted 	responsibility 	for 	its 	distribution 	to 	:management 	and
the public 	during 	the 	distribution process. 	Indeed, 	as
discussed 	infra, 	the District 	specifically 	acknowledged 	the
Association's 	responsibility. 	Thus, 	while 	failure 	by 	the
organization 	to 	properly 	identify 	the 	leaflet 	could, 	in 	some
circumstances, 	jeopardize 	the 	protected 	nature 	of 	the 	activity,
it 	does 	not have 	that 	impact 	here.
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protection 	to 	employee 	activity 	detrimental 	to 	and 	disparaging
of 	the 	employer's 	business 	that 	is 	not 	related 	to 	the
employees' 	interest 	as 	employees.
Statements 	or 	comments 	to 	the 	public 	which 	do 	relate 	to
labor 	disputes, 	however, 	are 	not 	beyond 	the 	bounds 	of
protection. 	For 	example, 	in 	Stevens 	Institute 	d/b/a 	Academy 	of
Art 	College 	(1979) 	241 	NLRB 	839 	[101 	LRRM 	1052], 	enf'd. 	(9th
Cir. 	1980) 	620 	F.2d 	726 	(104 	LRRM 	2524], 	a 	college 	instructor
and 	active 	union 	member 	spoke 	at 	a 	student 	meeting 	and 	told
those 	present 	that 	almost 	all 	of 	the 	classes 	cancelled 	by 	the
administration 	had 	been 	taught 	by 	former 	union 	members 	and
suggested 	that 	the 	students 	investigate 	the 	Academy's
enrollment 	procedures. 	He 	also 	discussed 	accreditation 	of 	the
Academy 	which 	had 	been 	of 	concern 	to 	the 	student 	body 	during 	a
prior 	dispute 	between 	the 	union 	and 	the 	administration. 	The
National 	Labor 	Relations 	Board 	(NLRB) 	found 	that 	the 	employee
was 	unlawfully 	discharged 	because 	of 	his 	efforts 	to 	inform 	and
involve 	the 	students 	in 	the 	union's 	labor 	dispute. 	The 	NLRB
found 	that 	the 	comments, 	made 	to 	the 	students 	who 	were 	the
ultimate 	consumers 	of 	the 	Academy's 	services, 	were 	in
furtherance 	of 	the 	labor 	dispute 	and 	related 	to 	the 	interest 	of
the 	faculty 	members 	who 	were 	union 	supporters. 	The 	NLRB 	stated:
The 	Board 	has 	held, 	with 	Supreme 	Court
approval, 	that 	where 	employee 	activity 	is
detrimental 	to 	and 	disparages 	the 	employer's
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business 	it 	is 	"not 	related 	to 	the
employees' 	interest 	as 	employees" 	and 	no
longer 	enjoys 	the 	protection 	of 	the Act.
Jefferson Standard 	Broadcasting Company, 	94
NLRB 	1507, 	enf 'd. 	sub 	nom. 	Local 	Union
Number 	1229, 	International Brotherhood 	of
Electrical Workers 	v. 	NLRB, 	346 	U.S. 	464
(1953); 	American Arbitrailon Association,
Inc. 	233 	NLRB 	71 	(1977). 	However, 	it has
been 	held 	that 	where 	employee 	statements 	or
comments 	to 	third 	persons 	relate 	directly 	to
the 	labor 	dispute 	and 	are 	not opprobrious,
flagrant{ 	insulting, 	defamatory,
insubordinate, 	or 	fraught 	with 	malice 	the
protection 	of 	the Act 	is 	not 	forfeited.
(Emphasis 	added.) 	American Hospital
Association, 	230 	NLRB 	54 	(1977); 	Dries 	&
Krump Manufacturing, 	Inc., 	221 	NLRB 	309
(1975), 	enf'd. 	544 	F.2d 	320 	(7th 	Cir. 	1976).
In 	the 	instant case, 	we 	find 	the Association's 	handbill
more 	akin 	to 	the 	protected 	communication 	in Stevens 	Institute
than 	the distribution 	found 	improperly disloyal 	by 	the Court 	in
Jefferson Standard.
First, 	far 	from 	being 	opprobrious, 	malicious 	or 	defamatory,
the 	leaflet 	distributed 	at 	the 	graduation 	ceremony 	touts 	the
college 	as 	the 	nest 	in 	the 	land 	and 	expresses 	the 	hope 	that
the public 	will 	help 	prevent deterioration 	in 	the 	quality 	of
the product. 	The appeal 	is 	not, 	like 	that 	of 	Jefferson
Standard, 	to 	urge 	the public 	to 	turn 	away 	from 	the 	college 	but,
rather, 	to 	bring 	attention 	to 	the plight 	of 	the 	college,
allegedly 	endangered 	by 	bad 	management, 	and 	to 	work 	for 	the
preservation 	of 	the 	college's 	high educational 	quality. 	This
factual 	difference 	amply 	distinguishes 	Jefferson Standard 	from
the 	instant 	case.
6

We 	therefore 	find 	that 	the Association's 	allegations, 	while
not 	directly 	addressing 	issues 	in 	dispute 	at 	the 	bargaining
table 	nor 	in 	the 	form 	of 	negotiating 	proposals, 	were
nonetheless 	their 	comments 	on 	matters 	which 	were 	of 	legitimate
concern 	to 	the 	teachers 	as 	employees. 3 	By 	distributing 	the
leaflet, 	the 	teachers 	were 	participating 	in 	representational
activities 	of 	the Association 	and 	we re 	improperly disciplined
by 	the District 	for 	doing 	so.
We 	reject 	the District's 	contention 	that 	the 	teachers 	were
engaged 	in 	unprotected 	activity 	because 	the 	distribution 	of
leaflets 	was 	on 	"duty" 	time. 	The 	hearing 	officer's 	factual
finding 	to 	the 	contrary 	is 	amply 	supported by 	the 	record.
The District's memorandum 	to 	the 	faculty 	regarding 	the
academic 	procession 	at 	graduation 	specifically 	instructed
employees 	to 	be 	at 	the 	stadium 	by 	6:45 	p.m. 	and 	in 	the
processional 	line by 	7:10 	p.m.
The 	employees 	complied 	with 	the 	letter of 	this 	directive,
but 	between 	6:45 	p.m. 	and 	7:10 	p.m., 	they 	distributed 	leaflets,
and 	this 	activity 	is 	the 	basis 	of 	the District's 	allegation
that 	the 	distribution 	occurred 	while 	the 	employees 	were on 	duty.
3while 	some 	of 	these 	issues 	as 	stated 	in 	the 	leaflet 	are
not 	negotiable 	subjects 	as de 	ned by 	subsection 	3543.2(a) 	of
EERA, 	they 	are 	matters 	upon 	which 	the Association 	has
consultation 	rights. 	Therefore, 	the 	teachers' 	distribution 	of
the 	leaflets 	falls 	well 	within 	their 	permissible 	right 	to
participate 	in 	activities 	of 	an 	employee organization 	relating
to 	all 	matters 	of 	employer-employee 	relations.
7

The 	District's 	otherwise 	detailed 	directive 	does 	not 	refer
to 	any 	duties 	or 	responsibilities 	between 	6:45 	p.m. 	and
7:10 	p.m., 	nor 	does 	the 	record 	otherwise 	allude 	to 	such
duties. 	The 	District 	did 	not 	present 	evidence 	concerning 	any
duties 	specified 	or 	unspecified 	that 	were 	assigned 	during 	the
time 	of 	the 	distribution 	but 	rather 	relates 	the 	employees' 	duty
to 	the 	directive's 	admonition 	that 	decorum equal 	to 	the
solemnity 	of 	the 	occasion 	be 	maintained. 	Yet, 	no 	evidence 	is
offered 	indicating 	that 	the 	civil 	distribution 	of 	printed
matter 	seriously 	detracts 	from 	the 	subsequent 	graduation
ceremony.
The 	requirement 	that 	the 	employees 	be 	present 	at 	6:45 	p.m.
surely 	implies 	that 	they 	might 	well 	have 	been 	assigned 	tasks 	or
responsibilities 	at 	that 	time 	if 	the 	situation 	so 	required, 	but
there 	is 	simply 	no 	evidence 	in 	the 	record 	indicating 	that 	any
such 	assignment 	was 	actually made, 	no 	less 	neglected. 	Rather,
the 	argument 	that 	this 	was 	"free 	time" 	is 	entirely 	credible.
Cf. 	Long 	Beach 	Unified 	School 	District 	(5/28/80) 	PERB 	Decision
No. 	130 	and 	cases 	cited 	therein.
For 	the 	reasons 	stated 	above, 	we 	affirm 	the 	hearing
officer's 	conclusion 	that 	the 	District 	violated
subsection 	3543.S(a) 	of 	EERA when 	it 	issued 	letters 	of
reprimand 	to 	the 	two 	teachers 	who 	caused 	those 	leaflets 	to 	be
distributed.
Further, 	we 	affirm 	the 	hearing 	officer's 	remedy 	ordering
the 	District 	to 	remove 	the 	letters 	of 	reprimand 	from 	the
8

teachers' 	personnel 	files. 	We 	reject 	the 	District's 	assertion
that 	ordered 	removal 	would 	require 	it 	to 	undertake 	an 	unlawful
act 	by 	altering 	a public 	record 	in 	contravention 	of Government
Code 	section 	6200. 4 	The only 	logical 	construction 	of 	that
section 	is 	that 	it 	would 	be 	unlawful 	for 	a public 	official 	to
remove 	material 	that 	was 	lawfully 	entered 	in 	an employee's
personnel 	file. 5 	Since our 	finding 	is 	that 	the reprimand
letters 	were 	unlawfully 	placed 	in 	the 	employees' 	personnel
files 	initially, 	it would 	be 	incongruous 	to 	hold 	that 	it would
be 	unlawful 	to order 	their 	removal. 	Prior 	decisions 	of 	this
Board 	have 	so 	ordered 	(Belridge School 	District 	(12/31/80) 	PERB
Decision No. 	157 	and, 	as 	in 	this case, 	ordering 	removal 	of 	the
4section 	6200 	provides:
Every 	officer 	having 	the 	custody 	of 	any
record, 	map, 	or 	book, 	or 	of 	any 	paper or
proceeding 	of 	any court, 	filed 	or 	deposited
in 	any 	public office, 	or 	placed 	in 	his 	hands
for 	any purpose, 	who 	is 	guilty 	of 	stealing,
willfully destroying, 	mutiliating, 	defacing,
altering 	or 	falsifying, 	removing 	or
secreting 	the whole or 	any 	part 	of 	such
record, 	map, 	book, 	paper, 	or 	proceeding, 	or
who permits 	any 	other person 	to 	do so, 	is
punishable by 	imprisonment 	in 	the 	state
prison 	for 	two, 	three, 	or 	four 	years.
5rn 	accord, 	see California Teachers Association v.
Nielson 	(1978) 	87 	Cal.App.3d 	25 	[149 	Cal.Rptr. 	728] 	wherein 	the
Court 	of 	Appeal 	held 	that 	a writ 	of 	mandate 	to 	compel 	a 	school
district 	to 	remove 	and 	destroy certain 	letters 	of 	reprimand
that 	had 	been 	placed 	in 	employees' 	files 	was 	not 	in 	conflict
with 	section 	6200 	where 	the 	employees demonstrated 	that 	the
letters 	were 	placed 	in 	their 	files 	in 	contravention 	of 	a 	valid
"no 	reprisals" 	strike 	settlement 	agreement.
9

reprimands 	is 	wel 1 within 	the 	Board's 	authority 	to 	fashion
appropriate 	remedial 	orders.6
The 	hearing 	officer 	correctly 	found 	that 	the Association
was 	entitled 	to 	be provided 	the 	names 	of other 	employees
disciplined 	by 	the District 	for 	distributing 	the 	leaflets. 	The
sole 	basis7 	for 	the District's 	exception 	to 	this 	conclusion
rests 	on 	the 	fact 	that 	the Association president 	did 	not 	ask
the person 	in 	charge 	of 	the 	handbilling 	for 	the 	names 	of 	those
employees 	who 	did 	so.
In Stockton Unified 	School 	District 	(11/3/80) 	PERB 	Decision
No. 	143, 	this Board 	concluded 	that 	the 	exclusive 	representative
is 	entitled 	to 	all 	information 	that 	is 	necessary 	and 	relevant
to 	discharging 	its 	duty 	to 	represent 	unit 	employees.a
Included 	among 	those 	duties 	is 	the Association's 	insistence
6subsection 	3541.S(c) 	provides:
(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.
7The District 	also 	excepted 	to 	the 	hearing 	officer's
finding 	11 that 	the Association 	is 	entitled 	to 	the 	addresses 	of
the disciplined 	persons." 	No 	such 	finding 	appears 	in 	the
hearing 	officer's 	proposed 	decision 	nor 	did 	the Association
request 	such 	information.
8Disciplinary 	letters 	have 	been 	held 	to 	be 	presumptively
relevant 	to 	the 	union's 	duty 	to 	represent 	employees.
Transportation Enterprises, 	Inc. 	(1979) 	240 	NLRB 	551
[100 	LRRM 13 30] •
10

11
that 	employees 	not 	be 	disciplined 	for 	engaging 	in protected
activity. 	Consequently, 	as 	the Association was 	clearly 	entitled
to 	the 	names 	of 	all other 	disciplined 	employees, 	the District's
refusal 	to 	provide 	that 	information was 	in 	violation 	of
subsections 	3543. 5 (a) 	and 	(c) 	of 	the Act.
A second, 	unrelated 	charge 	by 	the Association was
consolidated 	with 	the 	case 	above. 	It 	involved 	the District's
refusal 	to 	comply 	with 	the Association's 	request 	to 	disclose
the 	home 	addresses 	of 	part-time 	instructors 	who 	the Association
reasonably 	believed 	might 	have 	been 	affected 	by 	the California
Supreme Court's decision 	in Peralta Federation 	of 	Teachers 	v.
Peralta Community College 	District 	(1979) 	24 	Cal.3d 	369 	[155
Cal.Rptr. 	679, 	595 	P.2d 	113]. 9 	The District 	has 	taken
exception 	to 	the 	hearing 	officer's 	conclusion 	that 	those
addresses 	were 	reasonably 	related 	to 	the Association's
representational 	function 	and 	the District's 	refusal 	to provide
them 	violated 	subsections 	3543 .5 (a), 	{b) 	and 	(c) 	of 	EERA. 10
9peralta concerned 	the 	status 	and 	rights 	of 	part-time
community college 	faculty 	under 	pre-existing 	and 	modified
prov is ions 	of 	the Educ at ion Code. 	According 	to 	the Supreme
Court, 	part-time 	faculty 	who 	were 	initially 	employed 	prior 	to
November 	8, 	1967, 	became 	probationary 	employees 	with 	potential
for 	attaining 	permanent 	status and 	entitled 	to pro 	rata
compensation 	at 	the permanent 	faculty 	salary 	rate. 	The
determination 	as 	to whether 	an 	individual 	part-time 	teacher
would 	attain 	permanent 	status 	and 	salary 	rate 	involved 	an
examination 	of 	each 	individual's 	record 	of 	employment.
lOAs 	to 	the 	violation 	of 	subsection 	3543.S(b), 	the
District 	argues 	that 	neither 	the 	hearing 	officer 	nor 	the
11

12
We 	agree 	with 	the 	hearing 	officer's 	conclusion 	that 	the
addresses 	of 	those 	persons 	potentially 	affected 	by 	the Peralta
decision 	were 	necessary 	and 	relevant 	to 	the Association's
representational 	duties. 	We 	are 	not persuaded 	that 	the
Association 	evinced 	a 	clear 	and 	unmistakeable waiver 	of 	its
right 	to 	this 	information 	by 	acceding 	to Article 	IV,
paragraph 	2, 	of 	the parties' 	collective 	negotiating
agreement. 11 	Amador 	Valley Joint Union High School 	District
(10/2/78) 	PERB 	Decision No. 	74. 	In our 	view, 	the 	release 	of
addresses 	as 	contemplated 	by 	the 	contract 	provision 	sets 	forth
a 	routine 	procedure whereby 	the District 	provides 	the
Association provided 	any 	argLnnent 	in 	support 	of 	that
violation.
Since we 	affirm 	the 	hea 	ng 	officer's 	conclusion 	that 	the
District 	violated 	subsection 	3543.S(c), 	infra, 	relying 	on San
Francisco Community College 	District 	(10/12/79) 	PERB 	Decision
No. 	105, 	we 	also conclude 	that 	in 	so 	doing 	the District
concurently violated 	subsection 	3543.S(b).
llArticle 	12, 	paragraph 	2 provides 	in pertinent part:
ARTICLE 	IV
INFORMATION
2. 	Names 	and 	job 	titles 	of 	all 	u 	t 	members
shall 	be 	provided 	to 	the Association 	as 	soon
as 	possible 	following 	the 	beginning 	of 	each
academic 	year. 	Home 	addresses 	and 	home
telephone 	numbers 	of 	unit members 	shall 	be
provided 	to 	the Association 	for 	all 	members
who 	authorize 	the 	release 	of 	such
information.
12

13
Association 	with 	the 	addresses 	of 	willing, 	currently 	employed
teachers 	at 	the beginning 	of 	each 	school 	year. 	However, 	the
individuals 	whom 	the Association was 	unable 	to 	contact 	via 	the
intra 	canpus 	mail 	system 	and 	for 	whom 	home 	addresses 	were
sought 	we re 	not 	currently 	employed by 	the District. 	Indeed,
the District 	esen ti ally concedes 	the 	contract's 	inappli cabi li ty
by 	arguing 	that 	the 	addresses 	are 	beyond 	the 	bounds 	of 	the
Association's concern 	because 	the 	individuals 	are 	not 	in 	the
unit. 	Contrary 	to 	the District's 	assertion, 	the Association's
contact 	with 	the potentially 	affected 	individuals 	will 	permit 	a
determination 	of 	their 	former 	status 	as 	employees and 	unit
members 	and 	whether 	they 	are 	entitled 	to 	Peralta benefits 	which
they 	might have 	earned while 	employees 	of 	the District.
Information 	about 	employees 	whose 	status 	in 	the 	unit 	is 	in
question 	is 	necessary 	and 	relevant 	to 	discharging 	the
Association's 	duty 	to 	represent 	those 	potential 	unit 	members.
Cf. 	Goodyear 	Aerospace Corporation 	(1966) 	157 	NLRB 	496 	[61 	LRRM
1395], 	enf'd 	(6th 	Cir. 	1968) 	388 	F.2d 	673 	[67 	LRRM 	2447].
Absence 	of 	an 	express 	statutory mechanism for 	the 	release 	of
e 	requested 	information 	does 	not 	bar 	access 	under 	the general
obligation 	to 	provide 	information 	that 	is 	needed by 	the
bargaining 	representative 	for 	the proper performance 	of 	its
duties 	both 	during 	and 	after 	contract 	negotiations. 	NLRB 	v.
Acme 	Industrial 	Co. 	(1967) 	385 U.S. 	432 	[64 LRRM 	2069]. 	Thus,
consistent 	with 	the 	reasons 	expressed herein, 	we 	affirm 	the
13

14
hearing 	officer's decision 	that 	the District 	unlawfully 	refused
to 	supply 	the Association with 	the addresses 	requested.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law 	and 	the 	entire
record 	in 	this case, 	it 	is 	found 	that 	the Mt. 	San Antonio
Canmunity College 	District 	has 	violated 	subsections 	3543.S{a),
(b) 	and 	(c) 	of 	the Educational Employment Relations Act. 	It 	is
hereby ORDERED 	that 	the District 	and 	its 	representatives 	shall:
1. 	CEASE 	AND DESIST 	FROM
(a) 	Imposing 	or 	threatening 	to 	impose 	reprisals 	on
employees, 	discriminating 	or 	threatening 	to 	discriminate
against 	employees, 	or 	otherwise 	interfering 	with,
restraining 	or 	coercing 	employees 	by:
(1) 	Placing 	letters 	of 	reprimand 	in 	the
personnel 	files 	of 	employees 	who 	exercised 	their 	right
to 	communicate 	with 	the public 	on 	representational
matters;
(2) 	Refusing 	or 	failing 	to 	provide 	the 	exclusive
representative, 	as 	requested, 	with 	the 	names 	of 	any
and 	all 	employees 	within 	the 	negotiating 	unit 	who 	have
been 	similarly 	disciplined by 	the 	employer;
(3) 	Refusing 	or 	failing 	to 	provide 	the 	exclusive
representative 	with 	the 	home 	addresses 	of 	all
part-time 	teachers 	(whose 	names 	appear on 	the 	list
enclosed 	with Dr. 	Randall's 	letter 	to President
14

Markham, 	dated Ai.gust 	17, 	1979) 	whose 	employment
status 	may 	have 	been 	altered 	by 	the 	decision 	of 	the
California 	Supreme Court 	in Peralta Federation 	of
Teachers v. 	Peralta Community College 	District 	(1979};
(b) 	Refusing 	or 	failing 	to 	meet 	and 	negotiate 	in 	good
faith 	with 	the 	exclusive 	representative 	by:
(1) 	Refusing 	or 	failing 	to provide 	the 	exclusive
representative 	with 	the 	names 	of 	any 	and 	all 	employees
within 	the 	negotiating 	unit 	represented by 	the
exclusive 	representative 	who 	have 	been 	disciplined 	by
the 	employer 	for 	communicating 	with 	the public 	on
representational 	matters;
(2) 	Refusing 	or 	failing 	to provide 	the 	exclusive
representative 	with 	the 	home 	addresses 	of 	all
part-time 	teachers 	(whose 	names appear 	on 	the 	list
enclosed 	with 	Dr. 	Randall's 	letter 	to 	President
Markham, 	dated Ai.gust 	17, 	1979) 	whose 	employment
status may have 	been 	altered 	by 	the 	decision 	of 	the
California 	Supreme Court 	in Peralta Federation 	of
Teachers v. 	Peral ta Community College 	District 	(19 79);
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES OF 	THE 	EERA:
(a) 	Within 	five 	(5) 	w::,rkdays 	of 	date 	of 	service 	of
this 	Decision, 	prepare 	and 	post 	copies 	of 	the Notice 	to
Employees 	attached 	as an 	appendix 	hereto, 	signed by 	an
authorized 	agent 	of 	the 	employer, 	for 	thirty 	(30) 	workdays
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16
at 	its headquarters 	office 	and 	in 	all 	locations 	where
notices 	to 	employees 	are 	customarily posted;
(b) 	Within 	five 	(5) 	w::>rkdays 	after 	service 	of 	this
Decision, 	remove 	from 	any 	and 	all 	personnel 	or 	other 	files
in 	the District's 	possession 	regarding Ms. 	D. 	G. 	Wilson 	and
Dr. 	James 	D. 	Thomas, 	in 	their 	presence, 	Dr. 	Randall's
respective 	letters 	of 	reprimand 	dated June 	26, 	1979, 	to
Ms. 	D. 	G. 	Wilson 	and 	Dr. 	James 	D. 	Thomas 	as 	well 	as 	any 	and
all 	references 	to 	said 	letters 	of 	reprimand, 	including 	the
respective 	responses 	of 	Ms. 	D. 	G. 	Wilson 	and 	Dr. 	James
Thomas 	to 	their 	letters 	of 	reprimand;
(c) 	Similarly 	remove 	any 	other 	letters 	of 	reprimand
and 	responses 	thereto which 	were 	issued 	to other 	employees
who, 	like 	Wilson 	and 	Thomas, 	exercised 	their 	right 	to
communicate 	with 	the pub 	con 	representational matters.
(d) 	Upon 	request, 	provide 	the Association with 	the
resses 	of 	persons 	whose 	names appear 	on 	the 	list
enclosed 	with 	Dr. 	Randall's 	letter 	to 	President Markham,
dated A~ust 	17, 	1979.
(e) 	At 	the end 	of 	the posting 	period, 	thirty-five
(35) 	w::>rkdays 	from 	the 	date 	of 	service 	of 	this Decision,
notify 	in writing 	the Los 	Angeles 	regional 	director 	of 	the
Public Employment Relations Board 	of 	the 	actions 	the
District 	has 	taken 	to 	comply 	with 	this 	Order.
16

By:
Matty Morgenstern , Member	Mat,ky Morgenstern, 	Me:nbe r 	Harry GYuck, Chairperson	Hat'ryv ~Juck, 	Chairperson
Irene Tovar, Member	Irene Tovar, 	Member
17
It · is 	further 	ORDE RED 	that 	th~ 	hearing 	officer's dismissal
of 	the gXlet:Je~ 	viol,tion 	~y-subsection 	3543.S(d) 	is 	AFFIRMED.
The 	concurrence 	a nd 	diss e nt 	of mem be r 	Je n s en 	begi n s 	on page 	18.
17

18
Mt. 	San 	Antonio 	CCD, 	LA-CE-541; 	547
Virgil 	Jensen, 	Member, 	concurring 	and 	dissenting:
I 	disagree 	with 	the 	conclusions 	reached 	by 	the 	hearing
officer 	and 	the 	Board majority 	that 	the 	teachers 	were 	not 	on
duty 	during 	the 	period 	in 	which 	they 	distributed 	Association
leaflets.
A letter 	dated May 	30, 	1979, 1 	from 	the 	office 	of 	the
college 	president, 	specifically 	directed 	the 	faculty 	to
" 	be 	at 	the 	stadium by 	6:45 	p.m. 	and 	in 	line 	by 	7:10 	p.m."
and 	"[f]aculty 	decorum 	should 	be 	in 	conformity with 	the 	solemnity
of	of the occasion. " This clearly indicates that the teachers were	the 	occasion." 	This 	clearly 	indicates 	that 	the 	teachers 	were
to 	be 	on 	duty 	status 	at 	6:45 	p.m.
Under 	direct 	examination 	one 	of 	the 	teachers 	who 	distributed
Association 	leaflets 	testified 	as 	follows: 2
Q. 	Approximately what 	time 	did 	you 	reach
the 	area where 	you 	passed 	out 	these
documents, 	which 	are 	Charging 	Party's
Exhibit 	1, 	and 	start 	passing 	these 	out?
A. 	Around 	6:00.
Q. 	Approximately 	how 	long 	were 	you 	engaged
in 	the 	process 	of 	handing 	the 	literature
out?
A. 	Until 	the 	time 	of 	•.. 	of 	line 	up, 	which
was 	at 	7:00.
Q. 	I 	see. 	Were 	the 	other 	faculty 	members
who 	were 	there 	with 	you 	also 	similarly
engaged 	in 	the 	handing 	out of 	the
material 	throughout 	this 	time?
A. 	Yes.
1 District 	Exhibit 	B.
2volume 	I, 	PERB 	hearing 	transcript, 	pages 	74-77.
18

19
This 	direct 	te st imo ny 	clearly 	indicates 	that 	the 	teachers
were 	distributing 	the 	leaflets 	during 	the 	period 	of 	6:45 	p.m. 	to
7 : 00 	p.m., 	which, 	in my 	opinion , 	would have 	been 	duty 	time . 	I
cannot 	concur with 	the 	majority ' s 	analysis 	of 	the 	facts 	which
leads 	them to 	conclude 	that 	the 	period of 	6 : 45 	p . m. 	to 	7:00 	p . m.
was 	non-duty 	time . 	The 	fact 	that 	the 	leaflets 	were 	also
distributed 	prior 	to 	duty 	time 	does 	not make 	it 	a 	protected
activity 	to 	engage 	in 	such 	Association 	activities 	during 	duty 	time .
I 	would 	therefore 	find 	that 	the 	distribution 	of 	Association
leaflets 	at 	the 	graduation 	ceremony, 	during 	the 	period 	of 	6:45 	p . m.
to 	7:00 	p.m . , 	was 	not 	a 	protected 	activity 	and 	that 	the 	letters 	of
re p rimand 	to 	those 	enga g ed 	in 	this 	activity 	were 	jus tified.
I 	concur 	with 	the majority 	opinion 	and order 	regarding 	the
other 	issues 	in 	these 	cases.
Virgil 	W. 	J~nsen, 	Member
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20
APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED BY ORDER 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the State 	of 	California
After 	a 	hearing 	in Unfair 	Practice Case Nos. 	LA-CE-541 	and
LA-CE-547, 	Mt. 	San Antonio Communit 	Colle 	e 	Facult
Association, 	CTA 	EA 	v. 	Mt. 	San Antonio Community College
District, 	in which 	all 	parties had 	the 	right 	to 	participate, 	it
has 	been 	found 	that 	the Mt. 	San Antonio Community College
District has 	violated 	subsections 	3543.S(a), 	(b) 	and 	(c) 	of 	the
Educational Employment Relations 	Act 	{EERA) •
As 	a 	result 	of 	this 	conduct, 	we 	have 	been ordered 	to 	post
this 	Notice, 	an:! 	we 	will 	abide by 	the 	following:
1. 	CEASE AND 	DESIST 	FROM:
(a) 	Imposing 	or 	threatening 	to 	impose 	reprisals 	on
employees, 	discriminating 	or 	threatening 	to 	discriminate
against 	employees, 	or 	otherwise 	interfering 	with,
restraining 	or 	coercing 	employees 	by:
(1) 	Placing 	letters 	of 	repriman::I 	in personnel
files 	of 	employees 	who 	exercised 	th 	r 	right 	to
communicate with 	the public 	on 	representational
matters;
(2) 	Refusing 	or 	failing 	to 	provide the 	exclusive
representative, 	as 	requested, 	with 	the 	names 	of 	any
and 	all 	employees 	within 	the 	negotiating 	unit 	who 	have
been 	similarly 	disciplined by 	the 	employer;
(3) 	Refusing 	or 	failing 	to 	provide the exclusive
representative 	with 	the 	home 	addresses 	of 	all
part-time 	teachers 	(whose 	names 	appear on 	the 	list
enclosed 	with Dr. 	Randall's 	letter 	to
President 	Markham, 	dated 	August 	17, 	1979) 	whose
employment 	status may have 	been 	altered by 	the
decision 	of 	the California Supreme Court 	in Peralta
Fede ration 	of Teachers 	v. 	Peralta Community College
District 	(1979);
(b) 	Refusing 	or 	failing 	to 	meet 	and 	negotiate 	in 	good
faith 	with 	the 	exclusive 	representative by:
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21
(1) 	Refusing 	or 	failing 	to provide 	the 	exclusive
representative 	with 	the 	names 	of 	any 	and 	all 	employees
within 	the 	negotiating 	unit 	represented by 	the
exclusive 	representative 	who 	have 	been 	disciplined 	by
the 	employer 	for 	communicating 	with 	the public 	on
representational 	matters;
(2) 	Refusing 	or 	failing 	to provide 	the 	exclusive
representative 	with 	the 	home 	addresses 	of 	all
part-time 	teachers 	(whose 	names appear 	on t h e 	list
enclosed 	with Dr. 	Randall's 	letter 	to 	President
Markham, 	dated A 11;1 u st 	1 7, 	19 79) 	whose 	ernployrnen t
status may have 	been 	altered 	by 	the dee is ion 	of 	the
California Supreme Court 	in Peralta Federation 	of
Teachers v. 	Peralta Canmunity College District 	(1979);
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE 	EERA:
(a) 	Within 	five 	(5) 	W'.)rkdays 	after 	service of 	this
Decision, 	remove 	from 	any 	and 	all 	personnel or 	other 	files
in our 	possession 	regarding Ms. 	D. 	G. 	Wilson 	and
Dr. 	James 	D. 	Thomas, 	in 	their 	presence, 	Dr. 	Randall's
respective 	letters 	of 	reprimand 	dated June 	26, 	1979 	to
Ms. 	D. 	G. 	Wilson 	and 	Dr. 	James 	D. 	Thomas 	as 	well 	as 	any 	and
all 	reference 	to said 	letters 	of 	reprimand, 	including 	the
respective 	responses 	of 	Ms. 	D. 	G. 	Wilson 	and
Dr. 	J arnes 	Thomas 	to their 	letters 	of 	reprimand.
(b) 	Similarly 	remove 	any 	other 	letters 	of 	reprimand
and 	responses 	thereto which 	we re 	issued 	to othei;- 	employees
who, 	li ke Wilson 	and 	Thomas, 	exercised 	their 	right 	to
communicate with 	the public 	on 	representational matters.
(c) 	Upon 	request, 	pr ovide 	the Association with 	the
addresses 	of 	all 	persons 	whose 	names appear 	on the 	list
attached 	to Dr. 	Randall's 	letter 	to President Markham,
dated A11;1ust 	17, 	1979.
Dated:
MT. 	SAN ANTONIO 	COMMUNITY COLLEGE 	DISTRICT
BY_____...,,.-...,......--..--=--==---.,.--------Authorized Agent
THIS 	IS AN 	OFFICIAL NOfICE. 	IT MUST 	REMAIN POSTED 	FOR THIRI'Y
(30) 	CONSECUTIVE 	IDRK DAY$ 	FROM THE 	DATE OF 	POSTING AND MUST
Nor BE 	REDUCED 	IN 	SIZE, 	DEFACED , 	ALTERED OR COVERED BY ANY
MATERIAL.
21