Eastern Sierra Unified School District (PERB 0312E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RO BERT J. MADEN,
Charging Party,
v.
EASTERN SIERRA UNIFIED SCHO OL
DISTRICT,
Respondent.
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____________________)
Case No. S-CE-395
PERB Decision No. 312
May 24, 1983
App earances: M. Susan Carter, Attorney for Robert J. Maden;
Bret H. Reed, Jr., Deputy County Counsel for the Eastern Sierra
Unified School District.
Before Gluck, Chairperson; Tovar and Morgenstern, Members.
DECISION
MORGENSTERN, Member: This case is before the Public
Employment Relations Board (PERB or Board) on exceptions filed
by Robert J. Maden (Charging Party) to portions of a hearing
officer's proposed decision and order. The hearing officer
found that the Eastern Sierra Unified School District
(District) violated subsections 3543.S(a) and (b) of the
Educational Employment Relations Act (EERA or Act)l
lThe EERA is codified at Government Code section 3540
et seq. All statutory references are to the Government Code
unless otherwise noted.
Section 3543.5 provides, in pertinent part:
It shall be unlawful for a public school
employer to:

by 	denying 	Charging 	Party 	the 	right 	to 	representation 	by 	the
Eastern Sierra 	Classified Employees Association 	(Association)
at 	a 	grievance 	hearing 	following 	his 	termination. 	He 	ordered
the 	District 	to 	provide 	a 	hearing 	with 	an 	Association
representative 	present 	to 	consider 	the 	termination 	and 	any
procedural 	irregularities 	related 	thereto. 	The 	hearing 	officer
dismissed 	all 	other 	allegations.
(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.
The 	District 	filed 	no 	exceptions.
Charging 	Party 	excepts 	to 	the 	hearing 	officer's 	factual
finding 	that 	he 	was 	a 	probationary 	employee 	at 	the 	time 	of 	his
termination, 	and 	to 	the 	hearing 	officer's 	refusal 	to 	order
reinstatement 	to 	his 	former 	position 	with 	back 	pay.2
The 	Board 	finds 	the 	hearing 	officer's 	findings 	of 	fact 	to
be 	free 	from 	prejudicial 	error 	and, 	except 	for 	the 	finding 	as
to 	Charging 	Party's 	probationary 	status, 	which 	is 	discussed
2Because 	these 	are 	the 	only 	exceptions 	raised, 	our
discussion 	is 	so 	limited 	and 	we 	make 	no 	comment 	on 	other
conclusions 	of 	law 	as 	appear 	in 	the 	hearing 	officer's 	proposed
decision.
2

herein,
	adopts
	them
	as 	the
	findings 	of
	the
	Board
	itself.3
DISCUSSION
The
	District's
	sole
	defense 	to
	this
	charge
	was
	that
	Maden
had
	no
	right
	to
	a
	hearing 	and,
	therefore,
	no
	right
	to
representation.4	
Rejecting 	the
	District's
	argument,
	the
hearing
	officer
	found
	that
	Maden 	had 	a
	right
	to
	representation
at
	the
	November 	18
	meeting 	with
	the
	District
	board
	because:
(1)
	even
	if
	his
	termination
	was
	not
	grievable
	under
	the
contract
	between
	the
	District
	and
	the
	Association,
	at
	all
	times
prior
	to
	the 	formal
	hearing 	the
	District
	treated
	the
	matter
	as
a
	grievance;
	and
	(2)
	the
	District
	Community
	Relations 	Policy
about
	which 	Maden
	complained
	applied 	to
	all
	employees
	in 	the
unit
	and
	created
	an
	independent
	right
	to
	a
	hearing.
We
	agree.
	Because
	the
	District
	treated
	Charging
	Party's
complaint 	as
	a
	grievance
	under
	the
	contract,5	
it
	was
3we
	note
	an
	apparent
	clerical
	error 	at
	p.
	8
	of
	theproposed
	decision,
	where
	the
	date 	of
	the 	hearing
	is
	given 	as
December 	18
	instead 	of
	November
	18. 	This
	error 	is
	not
prejudicial
	in
	nature.
4The
	District
	never 	advanced
	the 	theory
	relied
	on 	by
	thechairman 	in
	his 	dissenting 	opinion
	that
	if
	Maden 	had 	a
	right
	to
representation,
	the
	District
	had
	not 	denied
	that 	right.
Pursuant 	to
	PERB
	regulation
	32300(c)
	(California 	Administrative
Code,
	title
	8,
	section 	32300(c)),
	"An
	exception 	not
specifically
	urg~<l
	shall
	be
	waived."
Sspecifically,
	the 	hearing
	officer
	found
	as 	follows
	at
pp.
	20-21 	of 	the 	proposed
	decision:
[I]n 	response 	to 	his 	request 	[for
	a
	hearing],the
	District
	granted
	him 	a
	hearing 	before 	theBoard, 	outlined 	to
	him
	that
	it
	was 	bypassing
3

estopped, 	at 	the 	grievance 	hearing, 	from 	denying 	his 	right 	to
representation 	expressly 	provided 	in 	the 	contract.6 	Thus, 	a
right 	to 	representation 	accrued 	to 	Charging 	Party 	by 	virtue 	of
his 	membership 	in 	the 	bargaining 	unit 	represented 	by 	the
Association, 	which 	expressly 	includes 	both 	"probationary 	and
permanent 	employees" 	(except 	designated 	confidential, 	supervisory
or 	managerial 	positions). 	Secondly, 	District 	Community 	Relations
Policy 	1312 	provides 	that 	"the 	employee 	involved 	may 	request 	an
intermediate 	steps 	within 	the 	grievance
procedure, 	and 	going 	directly 	to 	the 	Board
with 	his 	problem; 	and 	finally 	the 	District
asserted 	that 	the 	hearing 	granted, 	was 	"the
hearing 	guaranteed 	employees 	..• 	under 	the
contract 	.•• " 	After 	the 	hearing, 	Maden
was 	advised 	by Binderup 	that 	his 	grievance
had 	been 	denied, 	and 	later, 	counsel 	for 	the
District 	confirmed 	with Maden 	that 	the
decision 	of 	the 	Board 	had 	been 	related 	to
him 	in 	conformity with 	the 	provisions 	of 	the
grievance 	procedure.
6Article 	VIII 	of 	the 	contract, 	entitled 	"Grievance,"
provides:
The 	employee 	and 	immediate 	supervisor 	shall
have 	the 	right 	to 	include 	in 	the 	grievance
hearings 	such 	witnesses 	as 	they 	deem
necessary 	to 	develop 	facts 	pertinent 	to 	the
grievance 	•.. 	Such 	witnesses 	shall 	be 	in
addition 	to 	the 	conferee 	that 	either 	party
may 	select.
A "conferee" 	is 	defined 	in 	that 	Article 	as:
[A]ny 	association 	representative 	selected 	by
the 	grievant 	to 	assist 	the 	employee 	in
presenting 	and 	processing 	the 	claimant's
grievance, 	except 	as 	limited 	in 	Level 	I 	of
this 	procedure.
4

executive 	session
	of 	the
	Governing
	Board
	for
	the 	purposes
	of
fuller
	study
	and 	a
	decision
	by
	this
	body."7 	Thus,
	the
	policy
itself
	creates
	a
	right
	to
	hearing
	and,
	by
	its
	terms,
	applies 	to
an 	"employee"
	without
	qualification
	as
	to
	permanent
	or
probationary
	status.
We
	affirm
	the 	hearing
	officer's
	conclusion
	that 	pursuit
	of
such
	administrative
	remedies
	is 	sufficiently
	similar
	to
7oistrict
	Policy
	1312
	provides, 	in
	pertinent 	part:
COMMUNITY
	RELATIONS
Complaints 	Concerning 	School
Personnel/Instructional 	Materials
Constructive
	criticism
	of 	the 	schools
	is
welcome
	through 	whatever
	medium 	when
	it
	is
motivated
	by 	a
	sincere 	desire 	to
	improve
	the
quality
	of 	the 	educational
	program
	and
	to
	equip
the 	schools 	of 	the
	district
	to
	perform
	their
task
	more
	effectively.
The
	Governing 	Board
	places
	trust
	in
	its
employees
	and
	desires 	to 	support
	their
	actionsin
	such
	a manner
	that
	employees
	are 	freed 	of
unnecessary,
	spiteful,
	or
	negative
	criticism
and
	complaints.
Whenever 	a
	complaint
	is
	made
	directly 	to
	theGoverning 	Board
	as
	a
	whole,
	it
	shall
	be
referred 	to 	the 	school
	administration
	for 	study
and
	possible 	solutions.
	The_
individual
employee
	involved
	shall
	be
	advised 	of 	the
nature 	of 	the 	complaint
	and
	shall
	be
	given
every 	opportunity 	for 	explanation,
	comment, 	and
presentation of 	the
	facts
	as 	he/she 	sees
	them.
If
	it
	appears 	necessary, 	the 	administration,the 	person
	who 	made
	the 	complaint, 	or 	theemployee 	involved
	may
	request
	an
	executive
session of 	the Governing 	Board 	for 	the
5

grievance 	processing
	to
	be
	considered 	within
	"employment
relations"
	to
	which
	the
	right
	of
	representation
	attaches.8
Moreover,
	we
	find
	that
	both
	under
	the
	contractual
	grievance
procedure
	and
	under
	District
	policy
	1312 Maden 	had 	a
	right
	to
representation 	at
	the
	November 	18
	hearing
	regardless
	of
	whether
purposes
	of
	fuller
	study
	and 	a
	decision
	by
this
	body.
	Generally
	all
	parties
	involved,
including 	the 	school
	administration,
	shall
be
	asked
	to 	attend
	such
	a
	meeting
	for
	the
purposes
	of 	presenting
	additional
	facts,
making
	further 	explanations,
	and
	clarifying
the
	issues.
	Hearsay
	and 	rumor
	shall
	be
discounted
	as
	well
	as 	emotional
	feelings
except 	those
	directly 	related
	to
	the
	facts
of 	the
	situation.
The
	Governing Board
	shall
	conduct 	such
meetings
	in
	as
	fair
	and
	just
	a 	manner
	as
possible.
	The
	Governing 	Board
	may
	request
	a
disinterested 	third
	party 	to 	act
	as
	a
moderator
	to 	help
	it
	reach
	a
	mutually
satisfactory 	solution.
8section
	3543.1
	provides, 	in 	pertinent 	part:
Employee
	organizations
	shall
	have
	the
	rightto 	represent
	their
	members
	in
	their
employment
	relations
	with
	public 	schoolemployers,
	•••
Section
	3543
	provides, 	in 	pertinent 	part:
Public 	school
	employees
	shall
	have
	the
	rightto
	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.
See
	Mount
	Diablo Unified 	School
	District 	et 	al.
	(12/30/77)
	EERB
Decision
	No. 	44; 	Rio 	Hondo 	Community
College
	District
	(12/28/82)
PERB
	Decision
	No. 	272.
	Prior 	to 	January 	1, 	1978,
	PERB
	was 	known
as 	the 	Educational
	Employment
	Relations
	Board 	(EERB).
6

he 	was 	a 	permanent 	or 	a 	probationary 	employee. 	This 	being 	the
case, 	no 	finding 	on 	this 	employee's 	status 	as 	a 	permanent 	or
probationary 	employee 	is 	required 	and 	we 	make 	none.9
REMEDY
Charging 	Party 	excepts 	to 	the 	hearing 	officer's 	denial 	of
his 	requested 	remedy 	of 	reinstatement 	to 	his 	former 	position
with 	back 	pay. 	The 	hearing 	officer's 	denial 	of 	reinstatement
was 	not 	predicated 	solely 	on 	his 	finding 	that 	Maden 	was 	a
probationary 	employee 	at 	the 	time 	of 	his 	termination. 	To 	the
extent 	it 	was, 	we 	disavow 	the 	hearing 	officer's 	rationale.10
However, 	the 	hearing 	officer's 	decision 	was 	also 	based 	on
the 	fact 	that 	Charging 	Party 	did 	not 	allege 	or 	prove 	that 	his
termination 	was 	unlawful 	under 	EERA. 	The 	charge 	and 	the
9Because 	we 	sustain 	Charging 	Party's 	exception 	on 	this
ground, 	we 	need 	not 	consider 	his 	additional 	arguments 	that 	the
finding 	of 	probationary 	status 	is 	not 	supported 	by 	sufficient
evidence 	in 	the 	record 	and 	that 	the 	finding 	requires
interpretation 	of 	the 	Education Code 	beyond 	PERB's 	jurisdiction.
lOwe 	note 	that 	even 	if 	Charging 	Party were 	found 	to 	be 	a
probationary 	employee, 	that 	finding 	would 	not 	necessarily
preclude 	a 	remedy 	of 	reinstatement 	and 	back 	pay 	if 	the
termination 	is 	found 	to 	have 	been 	an 	unlawful 	violation 	of 	due
process. 	Wilkerson 	v. 	City 	of 	Placentia 	(1981) 	118 	Cal.App.3d
435 	[173 	Cal.Rptr. 	294); 	Lubey 	v. 	City 	and 	County 	of
San 	Francisco 	(1979) 	98 	Cal.App.3d 	340 	[159 	Cal.Rptr. 	440);
Fugett 	v. 	City 	of 	Placentia 	(1977) 	70 	Cal.App.3d 	868 	[139
Cal.Rptr. 	123]. 	Inasmuch 	as 	in 	this 	case 	PERB 	is 	empowered 	to
interpret 	and 	enforce 	only 	the 	provisions 	of 	EERA, 	this
constitutional 	question 	is 	one 	for 	judicial 	determination 	and
is 	not 	properly 	before 	us. 	See Modesto City 	Schools 	(3/8/83)
PERB 	Decision No. 	291; 	Richmond 	Unified 	School 	District/Simi
Valley 	Unified 	School 	District 	(8/1/79) 	PERB 	Decision No. 	99.
7

findings
	herein
	go
	only
	to
	the
	denial 	of 	representation
	at
	a
hearing
	subsequent
	to
	his 	dismissal.
	No
	claim 	of
	the
	right
	to
a
	hearing
	prior
	to
	dismissal
	is
	raised.
	If
	the
	hearing 	with
benefit
	of
	representation
	ordered
	herein
	results
	in
	a
determination
	that
	Charging
	Party
	was
	wrongfully
	terminated,
reinstatement
	and 	back 	pay
	could
	be
	effected
	at
	that
	time.
But,
	at 	this
	time,
	there
	has
	been
	no
	finding
	of
	an
	unlawful
deprivation
	of 	the 	job
	itself.
	Therefore,
	a 	remedy
	of
reinstatement
	and 	back 	pay
	is
	not
	now
	appropriate.11
we,
	therefore, 	affirm
	the
	hearing
	officer's
	proposed
	order.
ORDER
Upon
	the 	foregoing 	Decision
	and
	the
	entire
	record 	in
	this
case,
	the
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
llsee
	Lemoore 	Union 	High
	School
	District
	(12/28/82}
	PERB
Decision
	No. 	271 	where
	the
	Board
	declined 	to 	order 	thepromotion 	with
	back 	pay
	of
	an 	employee
	who
	was
	unlawfully
denied 	the 	opportunity 	to
	compete
	for
	the 	promotional
appointment
	on 	a
	fair
	and
	equal
	basis.
	There, 	our
	remedy 	was
limited 	to
	an
	order
	directing
	the
	District
	to 	re-open 	the
selection
	process
	and
	provide 	the
	employee 	a
	full
	and
	fair
opportunity 	to
	be
	appointed.
	The 	remedy 	was
	so
	limited
	because
there
	was 	no
	finding
	of
	an
	unlawful
	deprivation 	of
	the 	job
itself
	and 	no
	evidence
	that,
	had 	she 	been
	given
	a
	fairopportunity,
	she
	would 	have 	been
	appointed.
Similarly, 	reinstatement
	and 	back 	pay
	are 	inappropriate 	here
where
	there 	is
	no
	finding, 	or
	even 	any
	allegation, 	that
	Maden
was
	unlawfully 	deprived 	of 	his 	job,
	and 	no
	evidence
	that,
	had
he 	been
	represented
	at
	the
	hearing, 	the 	school 	board 	would 	have
reached
	a
	different 	decision.
8

The 	Eastern 	Sierra 	Unified 	School 	District 	and 	its
representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
Denying 	Robert 	J. 	Maden 	his 	right 	to 	representation 	or
denying 	the 	Eastern 	Sierra 	Classified 	Employees 	Association 	the
right 	to 	represent 	its 	members 	as 	guaranteed 	by 	subsections
3543. 5 (a) 	and 	(b) 	of. the 	Educational 	Employment 	Relations 	Act.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	WHICH ARE
NECESSARY 	TO 	EFFECTUATE 	THE 	POLICIES 	OF 	THE
EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	ACT:
1. 	Extend 	to 	Robert 	J. 	Maden 	an 	opportunity 	for 	a
hearing, 	with 	Association 	representation 	present, 	on
determination 	of 	the 	recision 	of 	his 	termination.
2. 	Within 	five 	(5) 	workdays 	of 	the 	date 	of 	service 	of
this 	Decision, 	post 	copies 	of 	the 	attached 	Notice 	at 	all 	school
sites 	and 	other 	work 	locations 	where 	notices 	to 	classified
employees 	customarily 	are 	placed. 	Such 	posting 	shall 	be
maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive 	workdays.
Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	these 	Notices
are 	not 	reduced 	in 	size, 	altered, 	defaced, 	or 	covered 	by 	any
other 	material.
3. 	Within 	thirty 	(30) 	workdays 	of 	the 	date 	of 	service
of 	this 	Decision 	notify 	the 	Sacramento 	regional 	director 	of 	the
Public 	Employment 	Relations 	Board, 	in 	writing, 	of 	the 	steps 	the
employer 	has 	taken 	to 	comply 	with 	the 	terms 	of 	this 	Order.
9

Continue 	to
	report 	in 	writing
	to 	the
	regional
	director
periodically 	thereafter
	as
	directed.
	All
	reports
	to
	the
regional
	director
	shall
	be
	served
	concurrently
	on
	the
	Charging
Party 	herein.
Member 	Tovar
	Joined 	in
	this
	Decision.
Gluck,
	Chairperson,
	dissenting:
	The
	District
	has
	filed
	no
exceptions 	to
	the
	hearing
	officer's
	finding
	that
	it
	violated
the 	Act
	by
	denying
	Robert
	Maden
	the
	right
	to
	be
	represented
	at
a
	hearing
	conducted
	by
	the 	school
	board
	to 	consider
	his
dismissal
	from 	employment. 	However,
	the 	purposes
	of
	the 	Act
would
	not
	necessarily
	be
	effectuated
	by 	a
	Board
	order
	which
runs
	against
	the
	grain 	of
	the
	facts.l	
Furthermore, 	the
exception
	filed
	by
	the 	charging 	party 	brings 	into
	focus
	the
entire
	question 	of
	his 	right
	to
	representation,
	as 	the
	majority
acknowledges
	although 	reaching
	a
	different 	result.
The
	complaint 	should
	be
	dismissed.
	I
	agree 	with 	the
majority's
	conclusion
	that
	Maden 	was
	entitled
	to
	be
	represented
in 	the 	hearing 	before 	the 	school 	board.
	However, 	I 	do
	not 	find
that
	he 	was
	actually
	denied
	that 	right.
	I 	do
	not
	know 	what
lBoard
	rule
	32300(c) 	which
	provides 	that
	an
	exception 	not
specifically
	urged
	shall
	be 	waived, 	does 	not 	preclude
	this
Board, 	the
	statutory
	body
	responsible 	for 	adjudicating
allegations 	of 	violations 	of 	law, 	from
	conducting
	a 	de 	novo
review.
10

uncharted 	"theory" 	the 	majority 	finds 	in 	these 	words 	(p.3,
fn. 	4). 	The 	single 	question 	raised 	by 	the 	charge 	is 	whether
Maden 	was 	denied 	representation 	at 	his 	disciplinary 	hearing.
The 	facts, 	found 	by 	the 	hearing 	officer, 	adopted 	by 	the
majority 	and 	not 	excepted 	to 	by 	charging 	party, 	are 	that 	Maden
was 	allowed 	representation 	at 	that 	hearing 	and 	so 	notified 	the
Association 	which 	promised 	to 	appear 	but 	did 	not 	until 	after
Maden's 	matter 	had 	been 	reached 	and 	concluded.2 	That 	the
District 	refused 	to 	grant 	a 	continuance 	at 	that 	time 	does 	not
alter 	these 	facts. 	The 	hearing 	officer 	had 	earlier 	considered
these 	facts 	and 	concluded: 	"It 	cannot 	be 	said 	that 	either
Maden 	or 	the 	Association 	had 	the 	right 	to 	continue 	the 	matter
for 	the 	convenience 	of 	either." 	He 	then 	bridged 	the 	gap
between 	this 	statement 	and 	his 	following 	conclusion 	that 	the
District 	"could 	not 	condition 	[Maden's 	appearance 	at 	the
hearing] 	upon 	the 	absence 	of 	representation" 	by 	the 	statement:
" .•. 	the 	[school] 	board 	proceeded 	with 	the 	hearing 	without
any 	compelling 	reason 	to 	do 	so." 	The 	issue 	is 	not 	whether 	the
board 	had 	a 	compelling 	reason 	to 	proceed 	but 	whether 	it 	was
legally 	obligated 	to 	grant 	a 	continuance.
2rnstead, 	the 	representatives 	had 	first 	attended 	a
private 	affair. 	Charging 	party 	filed 	no 	exceptions 	to 	these
findings 	of 	facts 	by 	the 	hearing 	officer. 	Nor 	did 	it 	take
exception 	to 	his 	findings 	that Maden 	has 	received 	advance
notice 	of 	the 	new 	date 	for 	his 	hearing, 	had 	so 	notified 	the
Association 	at 	least 	four 	days 	prior 	thereto 	and 	that 	neither
Maden 	nor 	the 	Association 	had 	made 	a 	pre-hearing 	request 	for 	a
continuance.
11

Perhaps 	the 	school 	board 	was 	unnecessarily 	dogmatic 	in
rejecting 	Maden's 	last-minute 	request 	for 	a 	continuance, 	but
its 	refusal 	to 	postpone 	the 	matter, 	or 	to 	reopen 	it 	when 	the
representatives 	finally 	did 	appear, 	constitute 	neither
"conditioning" 	Maden's 	discussion 	on 	the 	absence 	of
representation 	nor 	an 	unlawful 	denial 	of 	statutory 	rights. 3
I 	disagree 	with 	the 	majority's 	interpretation 	of 	Lemoore,
supra. 	There 	the 	Board 	ordered 	a 	new 	examination 	for 	an
employee 	who 	had 	been 	unlawfully 	discriminated 	against 	on 	a
promotional 	test. 	It 	declined 	to 	order 	that 	she 	be 	given 	the
promotion 	because 	there 	was 	no 	evidence 	that 	she 	would 	have
been 	successful 	had 	she 	not 	been 	discriminated 	against. 	Thus,
Lemoore 	followed 	the 	standard 	policy 	of 	remedying 	an 	unfair
practice 	by 	ordering 	a 	return 	to 	the 	status 	quo 	- 	the
3My 	colleagues' 	concern 	with 	my 	ra1s1ng 	the 	matter
"waived" 	by 	the 	District 	is 	surprising 	considering 	that 	their
decision 	deals 	largely 	with 	a 	matter 	to 	which 	neither 	party
excepted 	- 	Maden's 	right 	to 	representation. 	Indeed, 	the 	only
exceptions 	on 	appeal 	were 	Maden's 	objections 	to 	the 	hearing
officer's 	failure 	to 	decide 	whether 	he 	was 	a 	permanent 	or
temporary 	employee 	(an 	exception 	the 	majority 	declines 	to
consider) 	and 	to 	his 	failure 	to 	order 	reinstatement.
The 	plain 	fact 	is 	that 	the 	charging 	party, 	by 	its 	own
testimony, 	disproved 	the 	charge 	that 	Maden 	was 	denied
representation 	at 	his 	hearing. 	The 	complaint 	should 	have 	been
dismissed. 	It 	is 	true 	that 	the 	District, 	for 	whatever 	reasons
of 	its 	own, 	has 	not 	raised 	this 	point 	in 	response 	to 	Maden's
appeal 	(although 	it 	did, 	in 	its 	post-hearing 	brief, 	argue 	that
it 	had 	authorized 	him 	to 	be 	represented). 	But 	Maden, 	by 	his
appeal, 	has 	opened 	the 	record. 	Maden 	opened 	the 	door 	and 	the
majority 	should 	not 	be 	distressed 	that 	I 	chose 	to 	enter.
12

opportunity 	to
	participate
	in
	a
	fair
	and
	impartial
examination.
	Here,
	the
	remedy
	ordered
	by
	the
	hearing
	officer
and
	affirmed
	by
	the
	majority
	does
	not
	restore
	the
	status
	quo 	-
Maden's
	employment.
	Accepting
	solely
	for
	purposes
	of
	this
discussion
	the
	majority's
	finding
	that
	Maden 	was
	denied
representation,
	a
	reinstatement
	order
	would
	recognize
	that
	he
was
	effectively
	denied 	the
	opportunity 	to 	prevent
	the
	dismissal
decision 	ultimately
	reached
	by
	the 	school 	board.
I
	suggest
	that
	the
	majority
	misses 	the
	point 	of
	status
	quo
relief
	(p.
	8, 	fn. 	11).
	True,
	there
	was 	no
	evidence
	that
	the
Lemoore
	grievant
	would 	have 	been
	promoted
	had
	she 	been
	given
	a
fair
	examination.
	But
	it
	requires
	no
	speculation 	to 	find
	that
Maden 	was 	employed
	before
	his 	dismissal
	and
	that
	the
	District
policy
	in
	question 	provides
	for
	a
	hearing 	before
	a
	dismissal
decision
	is
	made.4 	Thus,
	Maden 	was
	"convicted" 	before
	he 	was
tried.
	The
	majority
	does
	order
	a 	new
	trial
	because
	he 	was
denied 	counsel 	but 	finds
	it
	inappropriate
	to 	vacate 	the
terminal 	sentence
	that
	was
	imposed.
Nevertheless,
	I 	do
	not 	suggest
	that 	reinstatement 	is
required 	in 	every 	instance
	where
	representation 	is
	denied.
PERB
	has 	the
	discretion 	to 	order
	such 	remedies
	it
	believes
would
	effectuate
	the 	Act's 	purposes.
	Absent 	evidence 	of
4Maden 	had 	no
	opportunity 	prior 	to 	the 	school 	board
hearing 	to 	protest 	his 	dismissal 	since 	the
	District 	eliminated
the 	preliminary 	steps 	of 	the 	grievance 	procedure.
13

special
	circumstances
	requiring 	reinstatement,
	such 	as
irreparable
	harm
	to
	statutory
	rights,
	an
	order
	for
	a
	new
hearing
	might
	well
	be
	sufficient.
14

APPENDIX 
NOTICE
	TO
	ALL
	EMPLOYEES
POSTED
	BY
	ORDER
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of 	the
	State
	of 	California
After
	a
	hearing
	in
	Unfair
	Practice
	Case No.
	S-CE-395,
Robert
	J.
	Maden
	v.
	Eastern
	sierra
	Unified
	School
	District,
	in
which
	all
	parties
	had
	the
	right
	to
	participate,
	it
	is
	foun9
that
	the
	Eastern
	Sierra
	Unified
	School
	District
	violated 	the
Educational
	Employment
	Relations
	Act,
	Government
	Code
subsections
	3543.S(a)
	and
	(b),	
by	
denying
	Robert
	J.
	Maden
	the
right
	to
	be
	represented
	and
	denying
	the
	Eastern
	Sierra
Classified
	Employees
	Association 	the
	right
	to
	represent
	its
members
	at
	a
	grievance 	hearing
	on November
	18,
	1980.
As 	a
	result
	of
	this
	conduct,
	we
	have 	been
	ordered
	to 	post
this
	notice
	and
	we
	will:
A.
	CEASE
	AND
	DESIST
	FROM:
Denying
	Robert
	J.
	Maden
	or
	the 	Eastern
	Sierra
Classified
	Employees
	Association 	the
	exercise
	of
	rights
guaranteed
	by
	the 	Educational
	Employment
	Relations
	Act.
B.
	TAKE 	THE
	FOLLOWING
	AFFIRMATIVE
	ACTION 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	ACT:
Extend
	to
	Robert
	J.
	Maden
	the 	opportunity 	for 	another
hearing
	with 	the 	presence 	of
	an
	Association
	representative.
Dated:	
EASTERN
	SIERRA UNIFIED
	SCHOOL
DISTRICT
B Authorized 	Representative
THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN 	POSTED 	FOR
	THIRTY
(30) 	CONSECUTIVE
	WORKDAYS 	FROM THE 	DATE 	OF
	POSTING
	AND MUST 	NOT
BE 	DEFACED, 	ALTERED, 	REDUCED 	IN SIZE
	OR 	COVERED 	BY ANY
	OTHER
MATERIAL.
Y-=--..,...,...---,,.....,,----,--.-----