San Francisco Unified School District (PERB 0317E)

S'l'ATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN FRANCISCO FEDERATION OF TEACHERS,
AFT LOCAL 61,
Charging Party,
V •
SAN FRANCISCO UNIFIED SCHOOL DISTRICT,
Respondent.
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Case No. SF-CE-654
PERB Decision No. 317
June 8, 1983
Ap;eearances: Stewart Weinberg, Attorney {_Van Bourg, Allen,
Weinberg & Roger) for San Francisco Federation of Teachers, AFT
Local 61 ; Celia Ruiz, Attorney (Breon, Galgani, Godino &
O'Donnell) for San Francisco Unified School District.
Before Gluck, Chairperson; Tovar and Morgenstern, Members.
DECISION
MORGENSTERN, Member: The San Francisco Federation of
Teachers, AFT Local 61 (AFT or Charging Party) appeals the
dismissal of its unfair practice charge by the regional
attorney of the Public Employment Relations Board (PERB or
Board). The Charging Party alleged that the San Francisco
Unified School District (District) violated subsection
3543.S(a) of the Educational Employment Relations Act (EERA or
Act)1 when School Board President Rosario Anaya sent a letter
to all District employees which concerned certain remarks of
James E. Ballard, AFT Local 61 president.
lEERA is codified at Government Code section 3540

FACTS
AFT 	Local 	61 	is 	the 	exclusive 	representative 	of 	a 	unit 	of
paraprofessional 	employees. 	On 	Tuesday, 	March 	16, 	1982, 	the
San 	Francisco 	Examiner 	published 	an 	article 	referring 	to 	the
parties' 	negotiations. 	Ballard 	was 	extensively 	quoted. 	He
indicated, 	inter 	alia, 	that, 	as 	a 	member 	of 	the 	San 	Francisco
Labor 	Council, 	he 	would 	not 	agree 	to 	endorse 	Board 	President
Anaya.
Thereafter, 	on March 	17, 	1982, 	Anaya 	responded 	to 	Ballard's
points 	in 	a 	letter 	prepared 	using 	District 	facilities 	and
resources 	and 	sent 	to 	every 	District 	employee. 	The 	letter 	set
forth 	Anaya's 	record 	concerning 	her 	opposition 	to 	layoffs 	and
her 	fear 	that 	wage 	increases 	could 	cause 	staff 	cutbacks.
Anaya 	criticized 	Ballard 	and 	expressed 	confidence 	that 	her
own 	labor 	relations 	record 	would 	demonstrate .her 	commitment 	to
proper 	wages 	and 	working 	conditions 	for 	all 	District 	employees.
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	specified.
Subsection 	3543.S(a) 	states:
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.
2

On June 	2, 	1982, 	PERB's 	regional 	attorney 	dismissed 	AFT's
charge 	and 	concluded 	that 	Anaya's 	letter 	was 	not 	violative 	of
EERA. 	PERB 	advised 	the 	charging 	party:
Anaya's 	letter 	cannot 	be 	seen, as
constituting 	a 	threat 	or 	promise 	to
employees. 	It 	does 	not, 	for 	example,
promise 	to 	condition 	her 	support 	of 	the
paraprofessional 	contract 	on 	Labor 	Council
endorsement, 	nor 	does 	it 	threaten 	any 	action
absent 	endorsement. 	Absent 	evidence 	of 	a
prohibited 	threat, 	or 	promise, 	the 	letter
itself 	does 	not 	constitute 	a 	violation 	of
the 	Act.
While 	facially 	non-coercive 	speech, 	such 	as
Anaya's 	letter, 	does 	not 	constitute 	a 	prima
facie 	violation 	of 	the 	Act, 	such 	speech 	may
constitute 	a 	violation 	when 	considered 	as
part 	of 	a 	total 	course 	of 	conduct 	aimed 	at
interfering 	with 	guaranteed 	rights.
{Citations 	omitted.) 	Your 	charge 	contains
no 	facts 	which 	would 	indicate 	that 	Anaya's
March 	17 	letter 	was 	anything 	more 	than 	an
isolated 	expression 	of 	her 	views 	regarding
issues 	important 	to 	District 	employees.
Therefore, 	no 	prima 	facie 	violation 	is
stated.
On June 	21, 	1982, 	AFT 	appealed 	the 	dismissal 	of 	the 	charge
arguing 	that 	an 	employer's 	conduct 	or 	speech 	can 	interfere 	with
rights 	of 	employees 	"even 	though 	it 	may 	not 	contain 	a 	threat 	of
reprisal 	or 	force 	or 	promise 	of 	benefit." 	AFT 	also 	urges 	that
Anaya's 	letter 	impliedly 	promises 	a 	benefit 	to 	her 	employee
supporters. 	It 	also 	argues 	that 	Anaya's 	letter 	is 	improper
because 	permissible 	employer 	expressions 	must 	relate 	to 	the
District's 	position 	relevant 	to 	matters 	of 	legitimate 	employer
concern. 	Additionally, 	AFT 	claims 	that 	Anaya's 	letter 	was 	an
3

effort 	to 	communicate 	directly 	with 	the 	employees 	and 	thereby
bypass 	the 	exclusive 	representative 	and 	interfere 	with 	the
union's 	intimate 	relationship 	with 	its 	members.
The 	District's 	response 	to AFT's 	appeal 	was 	submitted 	on
July 	7, 	1982, 	and 	characterizes 	Anaya's 	letter 	as 	permissive
free 	speech 	consistent 	with 	PERB 	precedent.
DISCUSSION
In Muroc 	Unified 	School 	District 	(12/15/78) 	PERB 	Decision
No. 	80, 	the 	Board 	first 	announced 	that 	the 	public 	school
employer 	is 	not 	precluded 	from 	freely 	expressing 	its 	views
despite 	the 	fact 	that EERA does 	not 	expressly 	protect 	employer
speech.
Thereafter, 	in Antelope 	Valley 	Community 	College 	District
(7/18/79) 	PERB 	Decision 	No. 	97, 	the 	Board 	found 	that 	statements
made 	by 	the 	employer 	violated 	EERA 	because 	they 	were
"calculated 	to 	interfere 	with, 	restrain 	and 	coerce 	the
employees" 	and 	"created 	a 	threatening 	and 	coercive
climate 	•••• "
In 	Rio 	Hondo 	Community College 	District 	(5/19/80) 	PERB
Decision No. 	128, 	the 	Board 	expressly 	adopted 	the 	free 	speech
standard 	of 	the 	National 	Labor 	Relations 	Board 	and 	held:
••• 	that 	an 	employer's 	speech 	which
contains 	a 	threat 	of 	reprisal 	or 	force 	or
promise 	of 	benefit 	will 	be 	perceived 	as 	a
means 	of 	violating 	the 	Act 	and 	will,
therefore, 	lose 	its 	protection 	and
constitute 	strong 	evidence 	of 	conduct 	which
is 	prohibited 	by 	section 	3543.5 	of 	the 	EERA.
4

The 	regional 	attorney's 	dismissal 	of 	the 	charge 	accurately
referred 	to 	the 	above-mentioned 	cases 	and 	appropriately
concluded 	that 	Anaya's 	letter 	was 	not 	coercive 	or 	threatening
to 	employees. 	On 	appeal, 	however, 	AFT 	asserts 	that 	an
employer's 	communication 	can 	interfere 	with 	employees' 	rights
even 	though 	it 	contains 	no 	threat 	of 	reprisal 	or 	force 	or
promise 	of 	benefit. 	AFT 	cites 	the 	Chairperson's 	concurrence 	in
Rio 	Hondo 	which 	states:
••• 	it 	is 	conceivable 	that 	under 	certain
circumstances 	employer 	speech 	may 	be 	free 	of
such 	explicit 	character 	and 	yet 	so 	impliedly
intimidating 	or 	coercive 	as 	to 	interfere
with 	the 	exercise 	of 	employee 	rights.
The 	regional 	attorney's 	dismissal 	did 	not 	speak 	in 	terms 	of
"implied" 	intimidation. 	It 	did, 	however, 	expressly 	consider
and 	reject 	the 	possibility 	that, 	while 	facially 	noncoercive,
Anaya's 	letter 	was 	coercive 	when 	considered 	as 	a 	part 	of 	a
total 	course 	of 	conduct. 	In 	this 	regard, 	the 	regional 	attorney
found 	that 	no 	factual 	allegations 	were 	included 	in 	the 	charge
and 	thus 	no 	inference 	could 	be 	drawn. 	We 	agree.
In 	this 	appeal, 	AFT 	also 	asserts 	that 	a 	condition 	precedent
to 	affording 	free 	speech 	protection 	to 	an 	employer's
communication 	is 	that 	the 	comment 	must 	be 	a 	permissible
expression 	of 	the 	District's 	position 	relevant 	to 	matters 	of
legitimate 	employer 	concern. 	It 	argues 	that 	the 	District 	has
no 	legitimate 	interest 	in 	securing 	Anaya's 	reelection. 	In
light 	of 	the 	factual 	circumstances 	in 	this 	case, 	we 	disagree.
5

We 	find 	that 	Anaya's 	letter 	was 	directly 	relevant 	to 	the
ongoing 	negotiations 	and 	the 	school 	board's 	role 	in 	rejecting
the 	Charging 	Party's 	pay 	raise 	proposal.
Finally, 	AFT 	argues 	that 	the 	regional 	attorney 	failed 	to
find 	that 	Anaya's 	letter 	was 	an 	improper 	effort 	to 	bypass 	the
exclusive 	representative. 	In Modesto 	City 	Schools 	(3/8/83)
PERB 	Decision 	No. 	291, 	the 	Board 	perceived 	the 	district's 	Staff
Update 	as 	communication 	which 	was 	intended 	to 	derogate 	the
exclusive 	representative's 	authority. 	The 	Board 	viewed 	the
newsletter 	as 	representing 	to 	employees 	that 	an 	offer 	had 	been
made 	to 	the 	union. 	Since 	no 	offer 	had 	been 	made, 	the
newsletter, 	in 	effect, 	directly 	presented 	an 	offer 	to 	employees
which 	had 	not 	been 	presented 	to 	their 	representative. 	Anaya's
letter 	makes 	no 	offer 	to 	employees 	nor 	does 	it 	appear 	directed
to 	undermine 	AFT's 	authority 	to 	negotiate 	on 	behalf 	of 	the 	unit
employees. 	Thus, 	while 	we 	affirm 	the 	conclusion 	noted 	in
Rio 	Hondo, 	supra, 	that 	under 	certain 	circumstances 	an
employer's 	communication 	will 	not 	be 	protected 	if 	it 	evidences
an 	attempt 	to 	bypass 	the 	exclusive 	representative, 	we 	find 	no
such 	purpose 	in Anaya's 	letter.
ORDER
Upon 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that 	the
regional 	attorney's 	dismissal 	of 	the 	unfair 	practice 	charge 	in
Case 	No. 	SF-CE-654 	is 	hereby 	AFFIRMED.
Chairperson Gluck 	and Member Tovar 	joined 	in 	this 	Decision.
6

?UBU<.: EMPLOYMENT RE'...ATION~ SOARD
fam f ranci$CO Regional Offic&
177 Post St., 9th Floor
Son fran=o, CaJifomia 	94108
(415) 557-1350
Jtme 2, 	1982
Stewart Weinberg
Van Balrg, Allen, Weinberg & Ebger
875 Battery St;reet
.. San Francisco, CA 94lll
!IJMUNO G. ~ Ja.. Co1•1w
Re: 	San Franciso::> Unified School District, Charge No. SF-cE-654
Dear Mr. Weinberg:
YOJr charge alleges that School Board President Rosario Anaya violated
the EERA by s~rxling District employees a letter responding to remarks
made by Union President James Ballard.
I 	indicated to you in a letter dated May 10, 1982 that the charge did not
state a prima facie violation of the EERA. 	(Gov't. Code 3540 et seg.}
Your 	letter of May 12, 1982 did not cure the deficiencies in your cnarge.
The fact that Ms. Anaya may have improperly expended public funds in
mailing the letter does not necessarily mean that her conduct interfered
with rights guaranteed tmder the EEFA. 	Moreover, I 	have found no case
authority for the proposition that the misuse of public noney serves to__
rerrove the ronduct complained of here from the realm of employer free -:-· .
speech. 	Therefore, for the reasons stated in my letter of May 10, and
reiterated here, 	I am dismissing your charge with leave to amend.
Anaya's letter was written in response to a San Francisco Examiner article
of March 16, 1982. 	The article cx,ncerned pending negotiations between
San Franciso::> Federation of Teachers CFI'/AET 	(hereafter Union) and the
District over salary increases for District paraprofessionals. 	Union
President James Ballard was quoted in the article as saying:
''When there are three members of the school board
saying they're anxious to have it," said Ballard,
"then there's something that can be done •. 	Anaya will
be running for 	re-election. 	She will want an
endorsement from the San Francisco Labor Council. 	The
fact 	that I'm sitting on the San Francisco Labor
Council Board means 	it \>."Ould not be surprising if I
\>."Ould not be at all anxious for 	the Labor Council to
endorse her."

Stewart Weinberg
,June 2, 1982
Page 2
In response to this article, 	the next day Anaya wrote an open letter to
all San Francisco Unified School District staff. 	The first paragraph of
the letter stated that Anaya had been a long-term supporter of "proper
wages an3 working con:Utions" and that she was "distressed" by Ballard's
threat to withhold. l.aoor endorsement of her school board.election bid on
the basis of her position during paraprofessional negotiations. 	The
letter went on to detail 	(1) Anaya's voting record on teacher layoff
issues; 	(2} 	her positicn in the paraprofessional negotiations; 	(3) 	her
voting record on.other C'Ollective bargaining agreements that have come
before the board. 	Finally, 	the letter criticized BaJJard's attempts to
blcx::k her endorsement by the Labor Council and ur9ed the·staff to consider
her performance as school board member before making an endorsement.
Based on the oontents of this letter, and relevant case precedent, your
charge as currently writteh does not state a prima facie violation of the
EERA. 	In a series of cases, PERB has concluded that, despite the fact
that the EERA does not contain specific language guaranteeing employer
free speech, a 	free speech right is 	implied in the language and~
of the Act. 	Rio Hondo Conmunity College District 	(5/19/80) 	PERB Decision
No. 	128; P..ntelope Valley Comnunit~ C.ollE;9e District 	(½18/79) 	PERB. 	.
Decision No. 	97; ?I.J.Iroc Unified Sc ool D1str1ct 	(12715 	8} 	PERB DeclSl.O_!:
No .. 80. 	In Rio Hondo, 	the Board held that under the EERA, employer 	·
speech will be analyzed according to the standards adopted by the NLRB in
L~terpreting section 8(c) 	of the NLRA.l
Under the NLRA, employer speech which contains a threat of reprisal or
force or promise of benefit will lose the protection of section 8{c}.
Absent such a threat, even speech which is highly critical of a
particular union will not constitute a violation of the Act. 	(See, e.g.,
The Nestle Company 	(1980) 	248 NLRB 732 	(no violation found where employer
told employees that lll'lion was "a loser"). 	.
Anaya's letter cannot be seen as constituting a 	threat or promise to
employees. 	It does not, 	for example, promise to condition her support of
the paraprofessional contract on Labor Council endorsement, 	nor does it
lSection B(c) 	of the NLRA provides:
The expressing of any views, 	argument, opinion, or the
dissemination thereof, whether 	in written, 	printed,
graphic, or visual form, 	shall not constitute or be
evidence of an unfair 	labor practice under any of the
provisions of this Act, 	if such expression contains no
threat of reprisal or 	force or promise of benefit.

Stewart Weinberg
June 2, 1982
Page 3
threaten any action absent endorsement. 	Absent evidence of a prohibited
threat, or promise, the letter itself does not constitute a violation of
the Act.
While facially non-cx:,ercive speech, 	such as Anaya's letter, does not
constitute a pr:ima facie violation of the Act, such speech may constitute
a violation when considered as part of a total CX>Urse of conduct aimed at
interfering with guaranteed rights. 	Antelo~ Valley Community eoμege
District, suPra: NLRB v. Virginia Electric and Pa,,er co. 	(1941) 	314 U.S.
459 	[19 LRRM 4051]. 	Your charge contains no facts which would indicate
that Anaya's March 17 letter was anything nore than an isolated expression
of her views regarding issues i.rrp:)rtant to District employees. 	'l'herefo:re,
no prima facie violation is stated.
Pursuant to Puplic F.mployment Relations Board regulation section 3263O(b)
(California Administrative Code, title 8, part III}, you may either 	(l}
amend the unfair practice charge, or 	(2) 	appeal the refusal to issue a
o:::,mp;taint to the Board itself.
Right to Amendment
If you choose to amend, 	the amended charge must be filed with the
San Francisco Regional Office Regional Office of the PERB before the
close of business 	(5:00 p~m.} 	on June 22, 	1982, 	in order to be timely--:-
filed 	(section 32135).
Right toApg=al
If you choose :not to amend the charge, you may obtain a 	review of this
dismissal of the charge by filing an appeal to the Board itself within
twenty·(20} 	calendar days after service of this Notice 	(section 32630(b)).
Such aa;>eal must be actually rec-eived by the executive assistant to the
Board before the close of business 	(5:00 p.m.) 	on June 22, 1982, 	in order
to be time filed 	(section 32135) 	at the following address:
Public F.inployment Relations Board
103118th Street
Sacramento, CA 	95814
If you file a 	timely appeal of the refusal, any other party may file
with the executive assistant to the Board an original and four 	(4) 	copies
of a statement in opposition within twenty (20) 	calendar days following
the date of service of the appeal 	(section 32630(c)).
Service
All documents authorized to be filed herein except for amenQIJtents to
the charge must also be "served" up:Jn all parties to the proceeding, 	anct

Stewart Weinberg
June
2,
	1982
Page 4
a 	"proof
of
service"
must accompany
the
document
filed
	with
the
Recrional
Office
of
the
Board
itself
	(sections
32655(a),
	3263O(b) 	and
321.40
for
	the
required contents
and a sample form) • 	The document
will
be considered
properly
"served"
when
personally delivered
or
dep::>Sited
	in
the
first-class
mail postage
paid
and properly addressed.
E:xtensioo
of
Time
A
request for
	an extension
of
time
in
which
to
file
a document with
the
Board
itself
JI1.1St be
in
writing
and
filed
with
the
executive
assistant
tothe
Boa.rd
at
the
previously noted
address.
	A
request
for an extension
	in
which
to file
	a document with
the
Regional
Office should be addressed.
to
the Regional Attorney. 	A
request
for an extension must be
filed
at
least
three
	(3)
	calendar days before
the expiration
of
the
time required
for
filing
	the
subject
document.
	The request must
	indicate
gcod cause
for
and
the position
of
each
other party
regarding
the extension
and
shall
beaccompanied
by
proof
of
service
of
the request upon each
party
	(section32132).
Final
Date
If
r.o
arrendoo charge
or
appeal
is
	filed
within the
specified
	time
limits,
the
dismissal.
will
becane
final
when
the time
limits
have expired.
	--'.
Very
truly
yours,
DENNIS M.
ST.JLI..IW\i.~
General
Counsel
PETER
.HABERFELD
Regional Attorney
By~
ELAINE FEINGOLD
Legal Counsel
cc:
	General Counsel
~~al)