Mammoth Unified School District (PERB 0371E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
MAMMOTH 	EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
MAMMOTH UNIFIED SCHOOL DISTRICT,
Respondent.
Case Nos. 	S-CE-424
S-CE-487
PERB Decision No. 	371
December 29, 	1983
Appearances; 	Charles R. 	Gustafson, Attorney for Mammoth
Education Association, CTA/NEA; 	Carl B. A. 	Lange, 	III, 	(Schools
Legal Service) 	for Mammoth Unified School District.
Before Tovar, Morgenstern and Burt, Members.
DECISION
TOVAR, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB 	or Board) 	on exceptions 	filed 	by 	the
Mammoth Education Association, 	CTA/NEA 	(Association) 	to 	the
attached 	proposed 	decision 	of 	a PERB 	administrative 	law 	judge
(ALJ). 	The exceptions are 	to the ALJ's dismissal of 	the
Association's 	allegation 	that 	the Mammoth 	Unified 	School
District 	(District) 	violated subsections 3543.5(a), 	(b) 	and 	(c)
of 	the Educational Employment Relations Act 	(EERA or Act) 	by
suspending 	one 	of 	its 	teacher 	members 	for 	refusing 	to 	carry out
certain 	assigned 	duties.1 For 	the 	reasons 	set 	forth 	in 	the
1The 	EERA 	is 	codified 	at Government 	Code 	section 	3540
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discussion which 	follows, 	the Board 	affirms 	the dismissal 	of
the 	allegation.
No 	exceptions 	have 	been 	filed 	to 	the 	remainder 	of 	the
proposed 	decision, 	in which 	the ALJ 	determined 	that 	the
District 	violated 	the 	EERA 	by 	unilaterally 	adopting 	a 	new
policy 	on 	the 	assignment 	of 	co-curricular 	coaching 	duties 	and
by 	denying Association 	representation 	to 	a 	bargaining 	unit
member 	at 	a 	disciplinary meeting 	with 	a District
administrator. 	On that basis, 	the ALJ's 	findings of 	fact,
conclusions 	of 	law 	and 	order 	with 	respect 	to 	those matters 	are
adopted 	as 	the 	final 	determination of 	the Board.
FACTS
No exceptions 	have 	been 	filed 	to 	the ALJ's 	findings 	of
fact. 	Upon a review of 	the 	evidentiary 	record 	in this 	case, 	we
find 	the ALJ's 	statement of 	facts 	to be 	free of 	prejudicial
error 	and 	therefore 	adopt 	those 	findings 	as 	those 	of 	the
Board. 	For 	convenience, 	a 	summary of 	the 	relevant 	facts
follows.
The Association 	is 	the 	exclusive 	representative 	of 	the
District's 	certificated 	employees. 	David Boe 	has 	been 	a
teacher 	for 	the District 	since 	1973. 	He 	is 	a member 	of 	the
Association, 	but 	has 	never 	been 	active 	in organizational
activities.
et 	seq. 	All 	statutory 	references 	herein 	are 	to 	the 	Government
Code 	unless 	otherwise 	indicated.
N	2

In May 	1981, 	Boe 	was 	given a mandatory 	assignment 	by 	school
principal Joe Maruca 	to coach girls' 	junior 	varsity basketball
in 	the 	coming 	fall. 	The mandatory 	nature 	of 	this 	assignment
constituted 	a departure 	from 	the 	established 	method 	of 	filling
co-curricular 	coaching 	positions. 	Teachers 	coming 	to 	the
District 	since 	1974 	had 	been 	hired 	on 	the 	express 	understanding
that 	coaching 	duties 	would 	be 	a 	required 	part of 	the 	job
duties. 	But 	teachers who, 	like Boe, 	were hired before 	that
year 	took 	coaching 	assignments 	only on 	a 	volunteer 	basis. 	This
arrangement 	had 	in 	the past 	sufficed 	to 	fill 	all 	the
assignments.
Upon 	being 	assigned 	the 	coaching 	duty, 	Boe 	told Maruca 	that
he 	would 	refuse 	to 	accept 	it 	because 	he 	had 	coached 	seven
seasons 	during 	his 	employment while 	other 	teachers 	had 	coached
less 	or 	not 	at 	all. 	On June 9, 	Maruca 	reaffirmed 	to Boe 	that
he was 	assigned 	to 	the 	coaching 	position, 	which would 	begin on
November 	16. 	Boe 	continued 	to 	refuse 	the 	assignment.
Boe 	sought 	and 	received Association 	assistance 	in 	filing 	a
grievance 	under 	the 	contractually 	provided 	grievance
procedure. 	The contract provided, 	inter 	alia:
2. 	The 	filing of 	a grievance 	shall 	in 	no
way 	interfere 	with 	the 	right 	of 	the Board 	to
proceed 	in 	carrying 	out 	its 	management
responsibilities 	subject 	to 	the 	final
decision of 	the grievance. 	In 	the 	event 	the
alleged 	grievance 	involves 	an 	order,
requirement, 	or other directive, 	the
grievant 	shall 	fulfill 	or 	carry 	out 	such
order, 	requirement, 	or other directive,
pending 	the 	final 	decision of 	the 	grievance.
W	
3

Boe 	contacted Association 	officials 	regarding 	his 	intended
refusal 	to 	coach 	and 	was 	informed 	that 	such 	action might
constitute 	insubordination. 	No 	evidence 	was 	presented 	to 	show
that 	the Association 	encouraged 	or 	sanctioned Boe's 	decision 	to
refuse 	the 	assignment.
In July, 	Association President Robert Barker 	mentioned 	to
Maruca 	that 	he 	was 	considering 	the 	idea of 	volunteering 	for 	the
coaching 	position assigned 	to Boe. 	Maruca 	responded, 	"don't."
Barker did 	not 	take 	this 	response 	as a 	threat, 	but only as 	an
expression of 	concern 	that Barker 	not over extend himself.
On October 	20, 	teacher 	Carol Broberg 	formally volunteered
for 	the 	coaching 	position. 	Broberg 	had 	no 	basketball 	coaching
experience 	with 	the 	District 	and 	had 	been off 	work 	on medical
leave 	during 	the 	prior 	semester. 	The 	request 	was 	denied 	by 	the
District 	for 	both 	reasons.
On November 	3, 	Maruca conducted 	a meeting 	with Boe, 	the
Association president 	and Vice Principal Macateer. 	Maruca
instructed Boe 	that 	he was 	still 	assigned 	to 	coach 	junior
varsity girls' 	basketball. 	Boe 	continued 	to 	refuse 	the
assignment.
The 	coaching 	assignment 	commenced 	on November 	16. 	Boe
received 	letters 	of 	reprimand 	for 	failing 	to 	perform 	assigned
duties on November 17, 	18, 	19 	and 20. 	Each letter was placed
in his personnel 	file.
4
4

On November 	30, 	the 	superintendent 	gave Boe written notice
of 	the 	District's 	intention 	to 	suspend 	him 	for 	one 	day 	without
pay 	for 	each 	day 	he 	refused 	to coach, 	effective December 	1.
The 	suspension 	was 	based 	upon Boe's 	insubordination 	for
(1) 	failure 	to carry out lawful orders, 	and 	(2) 	failure 	to
comply with 	an 	order 	pending 	completion 	of 	the 	grievance
process 	as 	required 	by 	the 	collective 	bargaining 	agreement.
The 	District 	suspended 	the 	proposed 	disciplinary 	action 	until
the 	arbitrator's 	advisory 	decision 	was 	issued.
On December 	3, 	1981, 	the 	arbitrator 	issued 	a decision
favoring 	the District. 	The 	arbitrator 	found:
1. 	No past 	practice 	existed 	wherein 	the District 	had
assigned 	coaching 	duties 	on 	an 	involuntary 	basis;
2. 	No 	negotiations 	occurred 	about 	coaching 	assignments
other 	than 	the 	amount of 	compensation;
3. 	The District 	rights' 	provision of 	the 	contract
provides 	clear 	authority 	to 	assign 	coaching 	duties 	and 	no 	other
contract 	provision 	limits 	such 	right;
4. 	The District 	has 	an 	inherent 	right 	to 	assign 	teachers
to perform 	as 	paid 	coaches 	for 	after-school 	sports 	unless
expressly limited by a contract 	(60 Ops. 	A.G. 	365 	(1977)).
Following 	a hearing, 	the 	advisory 	decision 	denying 	the
grievance 	was 	adopted 	by 	the 	governing 	board 	on
January 6, 	1982. 	The 	board 	also 	suspended Boe 	for 	10 	days
without 	pay 	for 	insubordination.
5

As of January 7, 	1982, 	the girls' 	junior 	varsity basketball
team coaching 	position 	remained 	vacant. 	The 	varsity 	coach
coached both 	teams which, 	combined, 	consisted of 	12 	girls.
Collective Bargaining 	Agreement
The 	parties 	operated 	under 	successive 	collective 	bargaining
agreements 	effective 	1978 	through July 	1981 	and August 	1981
through 	1984. 	The 	contracts 	are 	substantially 	similar 	and 	for
purposes 	of 	this 	case 	contain 	identical 	relevant provisions.
The 	parties 	specifically 	negotiated 	wages 	for 	coaching.
The 	contract 	contains 	an 	appendix which 	lists 	a 	separate
stipend 	for 	the 	performance 	of 	each 	co-curricular 	activity.
Co-curricular 	activities 	include 	coaching 	each 	individual
interscholastic 	sport 	and 	the 	positions 	of 	athletic 	director,
activities 	director 	and 	cheerleading 	director.
The 	contract 	does 	not mention how coaches 	are 	selected 	or
assigned. 	No 	specific discussion of 	coaching 	assignments
occurred 	during 	negotiations, 	nor 	did 	the 	District 	communicate
to the Association, 	prior 	to the 	instant dispute, 	that 	the
"management 	rights" 	clause 	in 	the 	1978-81 	and 	1981-84 	contracts
gave 	the 	right 	to 	assign 	employees 	involuntarily 	to coaching
duties. 	The 	"management 	rights" 	clause 	specifies 	that 	the
District 	retains "the 	right 	to hire, 	classify, 	assign,
transfer, 	evaluate, 	promote, 	suspend and terminate employees."
The 	agreement 	contains 	no 	stated 	causes 	or 	procedures 	for
imposition of 	discipline 	or 	any 	reference 	to 	review of
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discipline 	through 	the 	grievance 	procedure. 	No evidence 	was
presented 	to 	indicate 	that 	the 	parties 	discussed 	discipline
during 	negotiations.
DISCUSSION
Initially, 	the Association 	argues 	that 	the 	imposition of 	a
suspension 	upon Boe 	as 	a method of 	discipline 	was 	supported 	by
neither 	past practice 	nor 	contractual 	agreement, 	and 	that 	this
action 	therefore 	amounted 	to 	the 	unilateral 	adoption 	of 	a new
disciplinary policy 	in violation of EERA 	subsection 	3543.5(c).
The management 	rights 	clause of 	the parties' 	agreement
provides 	that 	the District 	will 	have 	"the 	right 	to 	. . .
suspend 	. 	. 	. 	employees." 	The Association's position 	is that
this 	provision permits 	the District 	to exercise 	its power 	to
suspend 	only 	to 	the 	extent 	authorized 	by 	state 	law 	as 	embodied
in 	the Education Code. 	The Education Code makes 	only one
express 	provision 	for 	the 	suspension 	of 	certificated 	employees:
at 	section 	44944 	it 	sets 	forth procedures 	for 	the 	dismissal 	of
certificated 	employees 	and 	includes 	suspension 	as 	an 	interim
measure 	during 	such proceedings. 	Clearly, 	argues 	the
Association, 	Boe's 	suspension was 	not 	imposed pursuant 	to 	the
dismissal 	provisions 	of Education Code 	section 	44944;
therefore, 	it was 	not 	authorized by 	the management 	rights
provision of 	the 	contract.
A public 	school 	employer's 	authority 	to 	suspend 	its
employees 	has 	previously 	been 	reviewed 	by 	this Board. 	In Arvin
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Union School District 	(3/30/83) 	PERB Decision No. 	300, 	we
considered Education Code 	section 35160, 	which provides 	that:
. 	. 	. 	the governing board of any school
district may 	initiate 	and 	carry 	on 	any
program, 	activity, 	or may otherwise act 	in
any manner 	which 	is 	not 	in conflict with or
inconsistent with, 	or 	preempted 	by, 	any law
which 	is 	not 	in 	conflict 	with 	the purposes
for 	which 	school districts 	are 	established.
We 	concluded 	that 	section 	35160 	establishes 	a 	public 	school
employer's 	"inherent 	right 	to discipline" 	its 	employees 	using
measures 	short of dismissal, 	including, 	inter alia, 	suspension
without 	pay.
In 	the 	instant 	case, 	the Association 	has 	acknowledged 	that
the 	management 	rights 	provision of 	their 	agreement 	incorporates
the 	District's 	authority 	to 	suspend 	under 	the Education Code.
Thus, 	since 	suspension 	as 	a disciplinary measure 	is 	authorized
by 	the Education Code, 	it 	is 	in turn authorized 	by 	the parties'
collectively 	negotiated 	agreement. 	The Association 	has
therefore 	failed 	to 	show 	that 	the 	District 	engaged 	in 	a
unilateral 	change 	in policy.
The Association 	argues 	that, 	even 	if 	the District has 	the
authority 	generally 	to 	suspend 	its 	employees 	as 	a disciplinary
measure, 	the 	suspension of Boe 	in 	this case was 	a violation of
EERA subsection 3543.5(a), 	which prohibits 	a public 	school
employer 	from 	taking 	adverse 	personnel 	action 	against 	an
employee 	because 	of 	his 	or 	her 	participation 	in 	activity
protected 	by 	the Act. 	The Association 	contends 	that Boe's
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refusal 	to 	accept 	the 	coaching 	assignment 	was 	a protected
response 	to 	the District's 	attempt 	to 	impose 	an unlawful
unilateral 	change 	in 	assignment 	policy.
The 	grievance 	provision of 	the 	contract 	includes 	the
following 	proviso:
In the event 	[a] 	grievance 	involves 	an
order, 	requirement or other directive, 	the
grievant 	shall 	fulfill 	or 	carry 	out 	such
order, 	requirement or 	other directive
pending 	the 	final 	decision of 	the 	grievance.
In 	light of 	the 	above 	language, 	we 	need 	not 	decide whether,
in other 	circumstances, 	an employee's 	refusal 	to obey 	the
directive 	of 	an 	employer 	who 	seeks 	to 	implement 	an 	unlawful
unilateral change 	would 	be 	protected 	by 	the Act. 	Boe 	agreed,
through 	his 	exclusive 	representative 	and 	via 	the 	collective
negotiating 	process, 	that 	he would obey 	the 	employer's
directives, 	notwithstanding his objections 	to them, 	pending 	the
final 	resolution 	of 	those 	objections 	via 	the 	grievance
procedure. 	Certainly the EERA does 	not, 	absent 	compelling
circumstances,2 protect 	the 	unilateral 	repudiation 	of
collectively bargained 	agreements. 	We 	find, 	therefore, 	that
Boe's 	refusal 	to 	accept 	the 	coaching 	assignment 	was 	not
protected 	conduct.
2We 	do not 	here 	foreclose 	the 	possibility 	that, 	for
example, 	an employee's 	refusal 	to obey a directive which 	is
based 	upon 	legitimate 	concerns 	for 	the 	collective 	safety of
unit 	employees 	might 	be 	protected 	by 	the Act 	notwithstanding
the 	existence of 	a "work now, 	grieve 	later" 	provision as 	in
this case.
99

The Association argues, 	however, 	that even 	if Boe's
insubordination was 	unprotected, 	the District's 	decision 	to
impose 	the 	suspension 	was 	nevertheless 	unlawfully motivated 	by
the District's 	desire 	to punish Boe 	for 	his 	resistance 	to 	the
unlawful 	change 	in 	assignment 	policy 	and 	his 	recourse 	to
Association 	assistance 	in 	that 	regard. 	As proof of 	this
allegation, 	it maintains 	that 	two 	teachers 	independently
volunteered 	to 	take 	the 	coaching 	assignment 	that 	was 	being
pressed 	on Boe, 	and 	that 	the 	District 	rejected 	them only
because 	of 	its 	determination 	to punish Boe.
The 	first 	teacher 	to 	express 	interest 	in 	the 	coaching
position was Association president 	Robert Barker. 	In July,
Barker 	mentioned 	to 	principal Maruca 	that 	he 	could 	volunteer
for 	the 	assignment. 	Maruca 	responded, 	"don't." 	Barker
testified 	that 	he 	understood Maruca's 	statement 	to 	be 	an
expression of 	concern 	that Barker 	not over extend himself. 	He
did not 	take 	it 	as 	a 	threat. 	The ALJ 	found 	that Barker 	freely
chose 	not 	to pursue 	his 	idea 	of 	actually 	volunteering 	for 	the
position. 	The Association 	argues 	on 	exception 	that 	even 	though
Barker 	may 	not 	have 	perceived Maruca's 	one-word 	statement 	as 	a
threat, 	it was meant as a threat, 	and 	indicates 	that Maruca had
it 	in for Boe.
Beyond 	this mere 	assertion, 	there 	is no evidence 	to support
the Association's claim. 	In 	light of 	the 	fact 	that Barker, 	the
Association president, 	himself perceived 	no 	threat, 	and 	in
10

reliance 	upon 	the ALJ's 	determinations 	of witness 	credibility,
we 	find 	a 	reversal 	of 	the ALJ's 	factual 	determination
unwarranted.
The 	other 	teacher 	to whom 	the Association 	points 	is
Carol Broberg. 	It 	is 	uncontested 	that 	she did 	in 	fact 	formally
volunteer, 	and 	that 	the District denied 	the 	offer 	of her
services 	on 	the 	grounds 	that 	she 	had 	recently 	taken a medical
leave 	of 	absence 	and 	also had 	no coaching 	experience. 	The ALJ
found 	that 	the District's 	grounds were 	legitimate, 	based 	upon
information 	that Broberg 	was 	not 	qualified 	for 	the 	position,
and 	thus 	that 	the 	incident 	failed 	to prove 	any 	intent on
Maruca's 	part 	to punish Boe.
The Association 	takes 	exception 	to 	the ALJ's 	conclusion
that Broberg 	was 	sufficiently 	unqualified 	for 	the 	coaching
assignment 	to 	justify Maruca's 	rejection 	of 	her 	volunteered
services. 	A review of 	the 	record, 	however, 	reveals 	that
Broberg"s 	experience 	in 	coaching 	basketball 	was 	extremely
limited, 	consisting 	of 	a one-year 	stint 	with a 	junior 	high
school 	intramural 	athletics 	program. 	This 	program devoted 	only
a 	fraction of 	the year 	to basketball, 	and 	occurred 	15 	years
prior 	to 	the 	events 	here 	at 	issue. 	In 	light of 	evidence
suggesting 	that Maruca 	was 	under 	some pressure 	to 	field 	a
successful girls' 	basketball 	team, 	his 	rejection of a volunteer
who 	had 	no 	experience 	in 	coaching 	basketball 	at 	the 	high 	school
level 	or 	in 	coaching 	any 	form of 	interscholastic 	basketball
11

fails 	to 	raise 	an 	inference 	that 	he 	continued 	to press Boe 	to
accept 	the 	assignment 	for 	unlawful 	reasons. 	We 	therefore
affirm 	the ALJ's 	dismissal 	of 	the Association's 	allegation 	that
the 	District 	violated 	subsection 	3543.5(a) 	when 	it 	suspended
Boe.
As 	noted, 	supra, 	the Board 	has 	adopted 	the ALJ's
uncontested 	determination 	that 	the 	District 	violated
subsections 	3543.5(a), 	(b) 	and 	(c) 	by unilaterally changing 	its
policy 	on 	the 	assignment 	of 	co-curricular 	coaching 	duties 	and
that 	it 	violated 	subsections 	3543.5(a) 	and 	(b) 	by denying
Association 	representation 	to Boe 	at 	a 	meeting 	with Principal
Maruca 	on June 	11, 	1981. 	The Order 	of 	the Board with 	respect
to 	these 	matters 	follows.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to 	subsection
3541.5(c), 	it 	is 	hereby ORDERED 	that 	the Mammoth Unified School
District, 	its 	governing 	board 	and 	its 	representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the Mammoth Education Association, 	CTA/NEA, 	as
the 	exclusive 	representative 	of 	employees 	in 	the 	certificated
unit, 	by 	taking 	unilateral 	actions 	on matters 	within 	the 	scope
of 	representation 	with 	respect 	to 	assignment 	of 	coaching 	duties.
(2) 	Denying 	to 	the Mammoth Education Association,
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CTA/NEA, 	rights 	to 	represent 	its members 	guaranteed 	by 	the
Educational Employment 	Relations Act 	by:
(a) 	refusing 	to meet 	and 	negotiate 	about matters
within 	the 	scope 	of 	representation; 	and
(b) 	denying 	the 	organization 	the 	right 	to
represent 	a 	unit 	member 	in 	a meeting 	involving 	potential
disciplinary 	action.
(3) 	Denying 	David Boe 	the 	right 	to 	be 	represented 	in
meetings 	involving 	potential 	disciplinary 	action.
(4) 	Interfering 	with 	employees 	because 	of 	their
exercise 	of 	representational 	rights 	by making 	changes 	in 	policy
on 	matters 	within 	the 	scope 	of 	representation without 	first
affording 	the 	opportunity 	to meet 	and 	negotiate 	to 	their
exclusive 	representative.
B. 	TAKE 	THE 	FOLLOWING ACTIONS 	DESIGNED 	TO EFFECTUATE 	THE
POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	ACT:
(1) 	Upon 	request, 	immediately meet 	and 	negotiate 	with
the Mammoth Education Association, 	CTA/NEA, 	regarding
assignment 	of 	coaching 	duties.
(2) 	Within 	35 	days 	following 	the 	date 	of 	service 	of
this Decision, 	prepare 	and post 	at 	all 	school 	sites 	and 	all
other 	work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notice 	attached 	hereto 	as 	an 	appendix.
The Notice 	must 	be 	signed 	by 	an 	authorized 	agent 	of 	the
District, 	indicating 	that 	the District 	will 	comply 	with 	the
terms 	of 	this ORDER. 	Such 	posting 	shall 	be 	maintained 	for 	a
13

period of 	30 	consecutive 	workdays. 	Reasonable 	steps 	shall 	be
taken 	to 	insure 	that 	such Notices 	are 	not 	reduced 	in 	size,
altered, 	defaced or 	covered 	by 	any other material.
(3) 	Written notification of 	the 	actions 	taken 	to
comply with 	this 	ORDER shall 	be made 	to 	the Sacramento Regional
Director 	of 	the Public Employment Relations Board 	in 	accordance
with 	her 	instructions.
C. 	All 	other 	charges 	are DISMISSED.
Members Morgenstern 	and Burt 	joined 	in 	this Decision.
14

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. 	S-CE-424 	and
S-CE-487, 	Mammoth Education Association, 	CTA/NEA v. 	Mammoth
Unified School 	District, 	in which 	all 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the District 	violated
Government Code subsections 3543.5(a), 	(b) 	and 	(c).
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to post
this Notice 	and 	will 	abide 	by 	the 	following. 	We 	will:
A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Denying 	the 	rights 	of 	the Mammoth Education
Association, 	CTA/NEA, 	and 	the 	unit members 	it 	represents 	by
changing 	the 	method 	by which 	coaching 	duties 	are 	assigned, 	or
any 	other 	matter 	within 	the 	scope 	of 	representation 	affecting
those 	employees, 	without 	first 	negotiating 	with 	their 	exclusive
representative.
(2) 	Denying 	David Boe 	or 	any 	other 	unit 	member 	the
right 	to 	be 	represented 	by 	the Mammoth Education Association,
CTA/NEA, 	at 	a meeting 	involving 	potential 	disciplinary 	action.
B. 	TAKE 	THE 	FOLLOWING ACTION:
Upon 	request, 	immediately 	meet 	and 	negotiate 	with 	the
Mammoth Education Association, 	CTA/NEA, 	regarding 	assignment 	of
coaching 	duties.
Dated: 	MAMMOTH 	UNIFIED SCHOOL 	DISTRICT
By:
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 	REDUCED 	IN 	SIZE, 	DEFACED 	ALTERED 	OR COVERED BY ANY MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
MAMMOTH 	EDUCATION 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v .
MAMMOTH 	UNIFIED SCHOOL 	DISTRICT,
R e s p o n d e n t .
Unfair 	Practice
Case Nos. 	S-CE-424
S-CE-487
PROPOSED 	DECISION
(2/9/83)
Appearances: 	Charles R. Gustafson, 	Esq., 	for Mammoth Education
Association, CTA/NEA; Anthony Leonis, 	for Mammoth Unified
School District.
Before Terry Filliman, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	involves 	the 	alleged 	unilateral 	change 	in 	the
past 	practice 	of 	seeking 	volunteers 	for 	coaching duties 	and 	the
suspension of 	one 	teacher 	for 	refusal 	to 	accept 	a coaching
assignment.
On July 6, 	1981, 	the Mammoth Education Association, CTA/NEA
(hereafter 	Association or MEA) 	filed 	unfair 	practice 	charge
S-CE-424 	against 	the 	Mammoth 	Unified 	School 	District 	(hereafter
District 	or 	Respondent) 	alleging 	violations 	of Government Code
sections 	3543.5(a), 	(b) 	and 	(c). 	The District filed a timely
answer. 	An 	informal 	conference was 	held on August 	5, 	1981,
without 	success. 	The matter 	was 	heard on January 7 	and 	8,
1982, 	at Mammoth, California. 	On March 	8, 	1982, MEA filed
)
)
)
)
)
)
)
========----------)

unfair 	p r a c t i c e 	charge 	S-CE-487. 	The 	charge 	arose 	from 	the
continuation 	of 	actions 	heard 	in 	case S-CE-424. 	A s t i p u l a t e d
record 	was 	developed 	and 	the 	cases 	were 	consolidated 	for
decision. 	Briefs 	were 	filed 	and 	the 	e n t i r e 	matter 	was
submitted on July 12, 	1982.
FINDINGS OF FACT
A. 	Background
The 	Mammoth 	Unified 	School 	D i s t r i c t 	is 	a 	public 	school
employer. 	The D i s t r i c t 	consists 	of 	one 	elementary 	school 	and
one 	high 	school 	located 	on 	a 	s i n g l e 	s i t e . 	The 	Association 	is
the 	exclusive 	representative 	of 	c e r t i f i c a t e d 	employees 	within
the 	meaning 	of 	the 	Educational 	Employment 	Relations 	Act
(hereafter 	EERA) .1
David Boe 	has 	been 	employed 	by 	the 	D i s t r i c t 	since 	1973 	as 	a
science 	teacher 	at 	the 	high 	school. 	Boe 	is 	a MEA member 	but 	is
not 	active 	in 	organizational 	a c t i v i t i e s .
B. 	Coaching Assignment 	to Boe
On May 	28, 	1981,2 Joe Maruca, high 	school p r i n c i p a l ,
conducted 	a 	short 	evaluation 	session 	with Dave Boe. 	The
p r i n c i p a l 	informed 	Boe 	that 	he 	would 	be 	assigned 	co-curricular
coaching 	duties 	the 	following 	school 	year. 	Boe 	indicated 	he
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	references 	hereafter 	are 	to 	the Government Code
unless 	otherwise 	indicated.
2 A 1 1 events 	described 	hereafter 	occurred 	in 	1981 	unless
otherwise 	indicated.
22

would resist 	the 	assignment 	because he 	had coached seven
seasons 	during his employment while other 	teachers 	had coached
less or 	not 	at 	a l l .
On June 8, Maruca sent a memo to all high school teachers
requesting volunteers for 	three 	vacant 	coaching 	positions. 	On
June 9 the principal notified Boe by memo that he was assigned
one of 	the 	vacant 	positions3 —girls' 	assistant 	basketball
coach. 	The 	assignment was to become effective November 	16th.
As described herein Boe continued to refuse the 	assignment 	in
advance 	and refused to 	perform the duties 	in November.
C. 	MEA Involvement 	in Dispute/Other Volunteers
The subject of 	coaching assignments 	arose during a May
faculty meeting. 	Maruca suggested that 	assignments 	would be
made 	if 	no volunteers were available for 	coaching. 	Several
faculty members 	approached Robert 	Barker, 	Association
president, 	to receive MEA's 	position on the matter.
On May 28, 	Barker 	and Maruca briefly discussed the 	issue in
the faculty lunchroom. 	Barker 	then told Maruca MEA's 	position
was 	that 	teachers 	could not 	be 	involuntarily assigned to coach
3 Neither 	of 	the 	other 	two coaching positions—junior
varsity football 	and junior 	varsity 	basketball 	were 	assigned 	in
June. 	The junior 	varsity baseball position was 	not 	filled by
January 	8, 	1982. 	A volunteer for 	the football job was 	allowed
to withdraw 	because of 	family hardship with a promise he would
coach 	the following 	season.
Testimony indicated that 	the 	school 	board was 	unhappy with
the lack of 	success 	in the girls 	basketball program and 	had
directed that 	the program be 	improved.
W	
3

under 	the current 	contract. 	Maruca responded, 	"if 	there 	is 	any
teacher 	who 	doesn't coach, 	I ' l l 	fire 	his 	ass." 	Boe testified
that Barker told him of the incident. 	No evidence was produced
to show Barker 	told any other 	unit members.
On the same day the District circulated a legal opinion
[60 Ops. Atty. Gen. 365 	(1977)] among faculty. 	The opinion
indicated 	that 	the District 	had 	the 	right 	to 	assign 	coaching
duties.
MEA assisted Boe in preparation of written responses 	to
Maruca's written assignment order 	of June 	9 and in a formal
grievance presented on June 19. 	Barker 	assisted Boe in
presentation of 	his 	individual 	grievance 	at each authorized
step of 	the 	process.
The Association filed an 	unfair practice charge on July 6
alleging a 	unilateral change in working conditions 	and
violations 	of 	the 	representation rights 	of 	all 	unit members 	and
specifically the 	rights 	of Boe.4
Boe 	contacted CTA officials 	regarding his 	intended refusal
to coach and was 	informed that 	such actions might constitute
insubordination. 	No evidence was presented to show that the
MEA encouraged or 	sanctioned Boe's decision to disobey the
assignment 	as 	contrasted to its support 	of 	his legal claims.
4Official 	notice 	is taken that 	no request for 	an
injunction to prohibit 	implementation of 	the 	assignment to Boe
was 	filed.
A	
4

During a 	grievance proceeding in July or August, 	Barker
informally suggested to Maruca that he would take the high
school coaching assignment in place of Boe. 	Barker was an
elementary school teacher. 	The record indicates 	that he later
coached 	sixth 	grade 	basketball during 1981-82, 	but 	it is
unclear whether 	he 	had already volunteered for 	the duty at the
time of 	the 	conversation. 	Barker 	testified that Maruca
informally rejected the offer 	by stating "don't." 	Barker 	did
not take Maruca's response as a threat but rather 	an expression
of concern that 	he not 	attempt to over extend himself. 	Barker
never 	filed 	a formal request 	to 	volunteer.
On October 20 Carol Broberg, a high school teacher,
formally volunteered for the 	position. 	The offer was made two
days 	prior 	to the 	arbitration 	hearing affecting Boe's
grievance. Broberg 	had 	no 	coaching 	experience 	with 	the
District and had been off work on medical leave during the
prior semester. 	The request was denied by the District for
both reasons.
On November 3rd Maruca told Tom Beveridge, a teacher, that
Boe was 	assigned the coaching position based on a "hidden
agenda." 	Maruca did not explain what he meant. 	Beveridge gave
his opinion that someone on the District board wanted Boe
assigned to coach 	girls' 	junior 	varsity basketball.
MEA representatives objected to the school board's
suspension of Boe in January 1982 	(described later 	herein) on
55

the 	basis 	that no District policy for 	discipline short 	of
discharge 	existed or 	had been negotiated prior 	to that 	date.
D. 	Denial of Representation
On June 11th, Boe and Barker delivered a written response
to Maruca's June 	8th memo 	assigning Boe to coach. 	Maruca told
Boe to meet with him in his office at 1:45 p.m. 	Boe asked a
union representative, Kathy Keller, to go with him to the
off 	ice.5 Maruca was 	not present 	so Keller 	left. 	Boe ran
into Maruca in the hallway and a five to ten-minute 	heated
discussion ensued. 	Boe 	indicated that 	if 	the meeting related
to his coaching assignment he wanted an MEA representative
present.
According to Boe, Maruca 	indicated that Boe did not have
the right to have a 	union representative at a meeting where his
job might 	be 	in jeopardy for 	refusing to coach. 	Boe further
testified that Maruca told him he would 	be in serious 	trouble
for 	insubordination if 	he 	did not 	attend the meeting. 	Maruca
testified that 	he told Boe 	his 	reason for 	refusing a
representative was 	that the meeting was 	not 	to discuss or
impose discipline 	but a meeting to discuss 	the 	coaching
assignment. 	He indicated he informed Boe that his job was not
in 	jeopardy.
5While the 	record does 	not 	reflect Keller's capacity with
MEA, both witnesses indicated she was present as a MEA
representative .
6

The 	credibility dispute surrounds whether Maruca
affirmatively told Boe that the purpose of the meeting was not
related to discipline. 	It is found 	that Maruca 	did 	not mention
discipline except 	his remark about 	possible insubordination
based upon his specific testimony about the incident. 	Most
likely Boe commented himself about his job being in jeopardy.
A few minutes later Boe arrived at Maruca's office
accompanied by Keller. 	According to Boe, a heated discussion
occurred and Maruca refused to hold a meeting with Keller
present. 	Boe then asked Keller 	to leave 	because he felt he was
in enough trouble. 	Maruca stated he again indicated that the
meeting did not 	involve 	discipline but was 	solely to discuss
the coaching assignment. 	He testified that after 	he assured
Boe of the purpose of the meeting Boe told Keller she was not
needed and could leave.
Maruca then read the grievance procedure from the
collective 	bargaining contract. 	The procedure 	prohibits 	either
party from 	bringing in a representative 	at 	the 	first step.6
Boe stated that he had not filed a grievance and he did not
consider 	the matter 	to be a grievance at that time. 	Boe
indicated he would not coach until such assignments were
equally distributed among staff. 	The meeting concluded with
Maruca and Boe discussing Boe's attitude, the importance of
61978-1981 Agreement, Article IX.
7

school 	athletics 	and why 	the 	coaching 	assignment 	was
necessary. 	Both witnesses 	agree 	that 	discipline was 	never
mentioned 	during 	the 	conversation.
On July 1 Maruca 	sent 	Boe 	a letter 	requesting 	the
scheduling 	of 	another 	informal 	meeting 	similar 	to 	the June 	11
session. 	The 	letter 	stated 	in part:
. 	. 	. 	our 	counsel 	had advised 	us 	that 	you
are 	entitled 	to 	an 	informal 	hearing 	. . . 	in
the 	presence 	of 	any 	union 	representative 	of
your 	choosing.
Pursuant 	to 	the 	letter 	a meeting was 	held on July 	6 with
Boe 	being 	represented 	by 	Barker. 	Maruca 	and 	Superintendent
Marvin Heinsohn 	both 	testified 	that 	the 	July 	6 meeting was 	not
held to substitute for 	the June 11 	session. 	Nevertheless, 	it
is 	apparent 	from 	the 	record 	that 	the 	District 	was 	attempting 	to
cure 	any 	possible 	defects 	in 	the 	prior 	meeting 	based 	upon legal
advice.
E. 	Assignment 	of Coaching Duties
1. 	Background
The 	District 	was 	an 	elementary school 	district 	prior 	to
1974. 	Boe was 	hired 	in 1973 	as 	a science 	teacher 	with no
contemplated 	coaching 	assignments. 	Upon 	unification 	and 	the
opening 	of 	a 	high school 	in 1974 several 	new 	certificated
employees 	were 	hired on 	the 	basis 	that 	they would 	teach 	and
coach. 	Gordon Strachan was 	the District 	superintendent 	through
1977. 	Strachan 	indicated 	that 	during his 	tenure 	teachers
filled 	all 	coaching 	positions 	either 	on 	a 	volunteer 	basis 	or
8

because of an understanding reached at the time of their
hiring. 	Since 1977 the District developed a general practice
of hiring only new teachers at the high school who indicated a
willingness 	to coach. 	Those who are hired currently to coach
are specifically hired as 	teacher/coaches.
Both elementary and high school 	teachers 	are eligible to
coach 	co-curricular 	sports.
Coaching is considered a co-curricular 	activity. 	The
District attempts to schedule a last period PE class or
preparation period for 	high school coaches so that some of the
duties may be performed during the regular teaching day. 	Such
scheduling is not 	always feasible. 	Under 	any scheduling
option, 	coaching requires a substantial expenditure of 	time
beyond the end of the normal teaching day. 	Certain sports like
varsity football require more than 100 hours of participation
during a season in addition to normal teaching hours.
2. 	Past Practice
Prior to the Boe incident no practice existed where the
District 	involuntarily 	assigned 	teachers 	to 	coaching 	positions
except those who agreed when initially employed. 	In fact, the
issue 	had never specifically arisen 	because all prior 	coaching
needs had been satisfied by volunteers.
The District obtained volunteers either 	by circulating a
memo of vacant coaching slots 	to staff or 	by contacting an
individual directly and soliciting him or 	her to volunteer.
9

During 	the 	last 	three 	years 	the District 	had 	encountered
increasing difficulty in 	securing 	volunteers. 	Since 	1980 	two
noncredentialed 	persons 	had 	been 	employed 	to coach.7 The
practice 	was 	not 	expanded 	because 	concerns 	were 	raised 	over
District 	liability. 	District 	Superintendent 	Heinsohn 	testified
that 	teachers 	have 	been 	counseled 	into 	accepting 	involuntary
assignments 	during 	his 	tenure on many occasions. 	One 	example
supporting 	the 	claim was 	offered, 	but 	no specific 	facts 	were
provided. 	Therefore, 	it 	is found 	that 	at 	the 	time of 	the Boe
assignment 	no 	other 	teacher 	had 	been ordered 	to 	coach.
F. 	Policy on Disciplinary Actions 	Short 	of 	Dismissal
1. 	Past Practice
No evidence 	was 	presented 	to 	indicate 	that 	the 	District 	had
a 	policy 	of 	imposing 	discipline 	short 	of 	discharge 	against
certificated 	employees 	or 	a practice 	of 	suspending 	teachers
prior 	to 	the Boe 	incident.
2. 	Reprimands/Suspension of Boe
An 	advisory 	arbitration 	was 	held 	on Boe's 	grievance 	on
October 	22.
On November 	3 	Maruca 	conducted 	a meeting with Boe, 	Barker
and Vice 	Principal Macateer. 	Maruca 	instructed Boe 	that 	he was
assigned 	to 	coach 	junior 	varsity girls1 basketball. 	Boe
7Administrative Code, 	title 5, 	section 5531 	requires
student 	athletics 	to 	be 	supervised 	by 	credentialed 	employees.
The 	same 	section 	authorizes 	noncredentialed 	coaches 	only under
limited 	circumstances.
10

refused the 	assignment. 	Maruca stated that the matter would 	be
in the 	hands of 	the superintendent 	and the Board of Trustees 	if
Boe refused to perform the assignment. 	A memorandum of the
conference was 	placed in Boe's f i l e .
In mid-November Maruca issued two reports of 	incidents
against Boe for 	leaving campus 	early and failing to return to
school upon request. 	During late afternoon on November 13,
Maruca wanted Boe to personally receive the District's written
response to his grievance. 	Boe had left school for 	home
because he was scheduled for 	a preparation period the last hour
of the workday. 	A common practice existed for teachers to
leave when they had sixth period preparation time assigned.
Maruca contacted Boe at home and requested him to return to
school to receive the l e t t e r . 	Boe declined. 	Maruca placed an
incident letter in Boe's personnel f i l e . 	On November 23 Maruca
placed another 	incident 	report 	in Boe's file in response 	to
Boe's written response to 	the first District l e t t e r . 	The
second 	report 	indicated 	that 	incidents 	like 	Boe's failure to
return to school 	could 	cause 	all faculty to lose 	the 	privilege
of leaving campus early. 	No evidence was presented regarding
whether 	other 	teachers had ever 	been involved in a similar
incident.
The coaching assignment commenced on November 16. 	Boe
received letters 	of 	reprimand for 	failing to perform 	assigned
duties on November 17, 18, 19 and 20. 	Each letter was placed
in his 	personnel 	file.
11

On November 30, the superintendent gave Boe written notice
of 	the District's intention to suspend him for 	one day without
pay for 	each day he refused to coach effective December 	1. 	The
suspension was 	based upon Boe's insubordination for 	(1) 	failure
to carry out lawful orders, 	and 	(2) 	failure to comply with an
order 	pending completion of 	the grievance process as 	required
by the collective 	bargaining agreement. 	The District suspended
the 	proposed 	disciplinary action 	until 	the 	arbitrator's
advisory decision was 	issued.
On December 	3, 1981, the arbitrator 	issued a decision
favoring 	the District. 	The 	arbitrator 	found:
1. 	No past practice existed wherein the District had assigned
coaching duties on an involuntary basis;
2. 	No negotiations occurred about coaching assignments other
than the amount of compensation;
3. 	The District rights' 	provision of 	the contract provides
clear 	authority to 	assign coaching duties 	and no other
contract 	provision limits 	such 	right;
4. 	The District 	has an inherent right to assign teachers to
perform as 	paid coaches 	for 	afterschool 	sports 	unless
expressly limited by a contract 	(60 Ops. A.G. 	365 	(1977)).
Following a hearing, the advisory decision denying the
grievance was adopted by the governing board on
January 6, 	1982. 	The Board also suspended Boe for 10 days
without 	pay for 	insubordination.
As of January 7, 	1982, 	the girls junior varsity basketball
team coaching position remained vacant. 	The varsity coach
coached both teams which combined consisted of 12 g i r l s .
12
.

G. 	Collective Bargaining Agreement
The parties operated under 	successive collective 	bargaining
agreements effective 1978-July 1981 and August 1981-1984. 	The
contracts 	are substantially similar 	and for 	purposes of 	this
discussion will be 	described 	as "the contract or the agreement."
The parties 	specifically negotiated wages 	for 	coaching in
the agreement. 	The contract contains an appendix which lists a
separate stipend for 	the 	performance of each co-curricular
activity. 	The stipend implies 	that a teacher will work the
number of hours necessary to perform the task. 	Co-curricular
activities 	include 	coaching each 	individual 	interscholastic
sport and athletic director, activities 	director 	and
cheerleading 	director.
The contract does not mention how coaches are selected or
assigned. 	No specific discussion of coaching assignments
occurred during negotiations. 	Dr. Wrendly, an outside
negotiator, 	represented the District during negotiation of 	the
contract. 	Robert Barker was the Association spokesperson. 	The
testimony presented by both parties indicates that those
statements which were made during negotiations about coaching
assignments were vague.8 Association witnesses Strachan,
8Barker 	and Lynn Thee, a negotiations team member,
testified as to statements reportedly made by Wrendly. 	Thee
indicated that Wrendly implied that since coaching was not
listed among the extra curricular duties in the contract which
could be assigned, that 	it could not be assigned. 	Barker
13

Barker 	and Thee 	competently testified that the District never
communicated to MEA that the "management rights" clauses 	in
either 	the 1977-78 or 1978-81 contracts 	gave the right to
involuntarily assign employees 	to coaching duties at any time
prior to assigning Boe in 19 81.
Contract provisions 	covering related subjects 	such 	as
hours, 	assignment 	of adjunct duties, 	transfers, 	individual
employment contracts, duration and management rights must be
considered.
Teachers are required to be on campus seven hours per day.
They are subject to 	assignment 	to adjunct duties 	without extra
pay. 	These duties may extend beyond the normal workday. 	The
parties stipulated that adjunct duties do not include coaching
assignments.9
testified that 	the 	parties 	discussed 	the management 	rights
clause 	as authorizing the District "to 	assign teachers to
different 	types 	of 	teaching activities 	for which they were
credentialed 	and 	qualified."
Because Wrendly was not a District employee and was out of
the 	area and 	unavailable to testify, 	the District 	attempted to
respond by introducing double hearsay testimony based upon a
phone conversation with Wrendly conducted on the eve of the
hearing.
The testimony of all witnesses was found to be too vague
and too 	unreliable to support a specific interpretation of 	the
contract.
9Adjunct duties 	(sometimes 	referred to as 	extra-
curricular duties) 	include open house, 	award ceremonies,
supervision of athletic events and dances. 	(Article X,
section 	5.)
14

The 	contract 	provides 	that 	any 	individual 	employment
contract 	shall 	be 	subservient 	to 	conflicting 	provisions 	in 	the
negotiated 	agreement.
The 	contract 	grievance 	procedure 	requires 	a grievant 	to
carry out 	any District 	order 	or 	directive 	pending 	a 	final
decision over 	the 	grievance. 	The 	grievance 	procedure 	includes
advisory 	arbitration.
The 	contract 	contains 	a 	"management 	rights" 	clause which
specifies 	that 	the District 	retains 	"the 	right 	to 	hire,
classify, assign, transfer, evaluate, promote, suspend and
terminate 	employees." 	(Emphasis 	added.)
The 	agreement 	contains 	no 	stated 	causes 	or 	procedures 	for
imposition 	of 	discipline or 	any reference 	to review 	of
discipline 	through 	the 	grievance 	procedure. 	No evidence 	was
presented 	to 	indicate 	that 	the 	parties 	discussed 	discipline
during 	negotiations.
The 	contract 	contains 	a 	zipper 	clause. 	It allows 	for
modification only 	by mutual 	consent. 	MEA may 	reopen
negotiations 	on one 	unspecified 	subject 	each 	year.
ISSUES
1. 	Did the D i s t r i c t ' s assignment 	of 	coaching duties 	to
David Boe 	constititute a refusal 	to 	bargain in 	good faith 	in
violation of 	section 	3543.5(c)?
2. 	Did the D i s t r i c t ' s imposition of discipline short of
discharge 	against Boe 	constitute a refusal 	to 	bargain in 	good
faith 	in violation of 	section 	3543.5(c)?
15

3. 	Did the District violate sections 3543.5 (a) 	and 	(b) 	by
denying to David Boe the 	right 	to representation in a meeting
with an administrator?
4. 	Did the District discriminate against Boe in violation
of section 3543.5 (a) 	by imposing several reprimands and a
suspension against him?
CONCLUSIONS OF LAW
I. 	PERB 	JURISDICTION/DEFERRAL 	TO 	GRIEVANCE 	PROCEDURE
Both of 	the 	employer's 	alleged actions 	affected a single
employee. 	The District 	raises 	contract authority and 	its
inherent authority to make 	assignments 	and to take 	disciplinary
action as defenses. 	The parties 	initially pursued the contract
grievance procedure to resolve the assignment dispute. 	A
fundamental question arises 	as 	to whether PERB should invoke
its 	jurisdiction 	in every contract 	dispute.10 In 	Grant Joint
Union High School District 	(2/26/82) 	PERB Decision No. 	196,
PERB established that a breach of contract must amount to a
change 	of policy, 	not merely default 	in a contractual
obligation. 	"A change of policy has by definition, a
generalized effect or 	continuing impact upon the terms 	and
conditions 	of employment of 	unit members."
10See Manatee County School Board 	(1980) 	7 FPER 12017
Florida PERB citing policy reasons to promote resolution of
assignments 	to an 	individual through the grievance procedure
rather 	than 	bargaining 	with 	the exclusive representative.
Citing Emporium Capwell Co. Western Edition Community
Organization 	(1975) 	420 US 50 43 L.Ed. 2nd 12.
16

The District's alleged change in practice of 	assigning
coaching duties 	combined with the 	threat 	to discipline teachers
who refuse the 	assignment would constitute a change in policy.
Furthermore, neither 	deferral 	to the 	grievance procedure or
to a post-arbitration decision would be appropriate. 	PERB does
not defer 	to non-binding 	grievance 	procedures 	between the
parties. 	No language in the contract covers the parties'
dispute. 	San Juan Unified School District 	(3/31/82) 	PERB
Decision No. 	204. 	Finally the arbitration decision issued in
this case could not be considered relevant because the
arbitrator was not 	asked to consider EERA statutory principles
in addition to interpreting the contract. 	Dry Creek Elementary
School District 	(7/21/80) 	PERB Order No. Ad-81a citing
Spielberg Mfg. Co. (1955) 112 NLRB 1080 [36 LRRM 1152].
I I . 	UNILATERAL 	CHANGE 	IN EMPLOYMENT 	CONDITIONS
An 	employer 	commits 	an 	unfair 	p r a c t i c e 	when 	it 	u n i l a t e r a l l y
i n i t i a t e s 	a 	change 	in 	the 	terms 	and 	c o n d i t i o n s 	of 	employment
within 	the 	scope 	of 	r e p r e s e n t a t i o n 	without 	n o t i f y i n g 	and
affording 	the 	employee 	o r g a n i z a t i o n 	an 	o p p o r t u n i t y 	to
n e g o t i a t e . 	Pajaro 	Valley 	Unified 	School 	D i s t r i c t 	(5/22/78)
PERB 	Decision 	No. 	51; 	San Mateo Community College 	D i s t r i c t
(6/8/79) 	PERB 	Decision 	No. 	94; 	San 	F r a n c i s c o 	Community College
D i s t r i c t 	(10/12/79) 	PERB 	Decision 	No. 	105. 	The 	u n i l a t e r a l
action constitutes a per se violation of the duty to bargain in
17

good faith pursuant to section 	3543.5(c).11 The District has
a duty to 	bargain only those subjects which are within the
scope 	of 	negotiations.12
11Section 	3543.5 states 	in pertinent part:
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.
12 Section 	3543.2 states 	in relevant 	part:
3 5 4 3 . 2 . 	SCOPE 	OF 	REPRESENTATION
(a) 	The scope of representation shall be
limited to matters relating to wages, 	hours
of employment, and other terms and
conditions of employment. 	"Terms and
conditions of employment" mean health and
welfare 	benefits 	as defined by Section
53200, 	leave, transfer 	and reassignment
policies, 	safety conditions 	of 	employment,
class size, procedures 	to be used for 	the
evaluation of 	employees, organizational
security pursuant 	to Section 	3546,
procedures 	for 	processing 	grievances
pursuant to Sections 	3548.5, 	3548.6, 	3548.7,
and 3548.8, 	and the layoff of probationary
certificated 	school 	district 	employees,
pursuant to Section 44959.5 of the Education
Code. 	In addition, the exclusive
representative of 	certificated 	personnel 	has
the right to consult on the definition of
educational objectives, 	the determination of
1 8

PERB is 	empowered to interpret section 3543.2 relating to
scope. 	Rialto Unified School District 	(4/30/82) 	PERB Decision
No. 	20 9. 	The Board has noted that the section does not state
with specificity which matters 	are within scope and which are
beyond scope. 	In determining whether 	a subject is negotiable
as a matter 	"related to" 	an expressly listed subject, the Board
developed a test in Anaheim Union High School District
(10/28/81) 	PERB Decision No. 177. 	The Board held that:
A subject is negotiable even though not
specifically enumerated 	if 	(1) 	it 	is 	logically
and reasonably related to hours, wages or an
enumerated term and condition of employment,
(2) 	the subject is 	of such concern to both
management 	and employees 	that 	conflict 	is
likely to occur 	and mediatory influence of
collective 	negotiations 	is 	the 	appropriate
means of resolving the conflict, 	and 	(3) 	the
employer's obligation to negotiate would not
significantly abridge 	his 	freedom to exercise
those managerial prerogatives 	essential 	to the
achievement of 	the District's mission.
These legal principles will be discussed separately and
applied 	to the District's 	actions 	in 	assigning 	coaching duties
and 	imposing discipline short 	of dismissal.
the content of courses and curriculum, and
the selection of textbooks 	to the extent
such matters are within the discretion of
the public school employer 	under 	the law.
All matters 	not 	specifically enumerated are
reserved to the public school 	employer 	and
may not be a subject of meeting and
negotiating, 	provided that 	nothing 	herein
may be construed to limit the right of 	the
public school 	employer to consult with any
employees or employee organization on any
matter outside the scope of representation.
19

A. 	Assignment 	of Coaching Duties
(1) 	Parties 	Contentions
The 	District 	contends 	that 	it 	has 	an 	inherent 	right 	to
assign 	coaching 	to 	teachers 	pursuant 	to 	state 	statute 	and 	that
assignment is within scope only to the 	extent 	of 	negotiated
additional 	compensation which 	is 	also required to 	be 	paid 	by
law. 	It further 	contends 	that 	the 	contract 	"management 	rights"
clause 	reserves 	the 	right 	to 	"hire, 	classify, 	assign 	. 	. 	.
employees" 	limited only by specific terms of 	the 	agreement.
It 	is 	the Association's 	position 	that 	the 	contract 	covers
compensation for 	coaching, 	but 	is 	silent 	on how 	the 	duties 	are
assigned 	particularly 	in 	light 	of 	expressed 	provisions
authorizing 	the 	District 	to 	assign 	extra-curricular 	duties
other 	than 	coaching. 	It 	claims 	the 	involuntary 	assignment 	to
Boe 	is 	a change 	in the 	past 	practice 	of 	seeking volunteers.
(2) 	Unilateral Change
Prior 	to David Boe's coaching assignment, 	teachers 	were 	not
assigned 	such duties 	without 	their 	voluntary 	consent.
Testimony that 	employees 	were 	"counseled" 	to volunteer 	was 	not
sufficient 	to 	demonstrate 	a 	past 	practice 	of 	assignments.
MEA demanded 	to bargain 	upon learning of 	the 	D i s t r i c t ' s
intended 	change 	in 	policy. 	The District 	refused 	to 	bargain.
The 	action was 	taken 	unilaterally.
(3) 	Assignment 	of Coaching Duties 	is Negotiable
The 	District 	strenuously argues 	that 	state law 	grants
school 	employers 	an 	inherent 	right 	to 	assign teachers 	to 	after
20

school 	coaching duties where 	volunteers 	are 	not available.
This argument 	has 	been 	thoroughly considered and 	is
rejected . 13
The 	decision to assign 	teachers 	to perform 	co-curricular
duties, 	including 	coaching, 	outside the 	normal workday affects
the wages 	and hours of 	those 	employees.14 Even the decision
to 	contract 	with 	employees outside 	the District 	to 	perform such
work affects 	employees 	wages 	because actual or 	potential work
is 	withdrawn from the negotiating 	unit. 	Thus, 	under 	the
Anaheim test the assignment of work beyond the normal workday
to 	teachers 	is logically 	and 	reasonably related 	to 	hours 	and
wages.
The 	unilateral assignment 	of 	substantial duties 	outside 	the
workday, such 	as 	coaching, obviously creates a conflict 	between
13The employer's 	contentions 	and 	applicable 	law 	are
briefly summarized. 	Education Code 	section 	35035 (c) 	allows 	a
district 	to 	assign 	teachers 	"reasonable 	duties 	within 	the 	scope
of 	their 	teaching 	credential 	without 	their 	consent."
(Centinela Valley Union HSD 	(1974) 	37 Cal.App.3d 	35; 	Finot v.
Pasadena Board of Education 	(196 7) 	250 Cal.App. 189; 	61 Ops Ag
53.) 	The 	attorney general 	indicated 	that 	all 	teachers 	may 	be
assigned 	coaching 	duties 	during or 	after 	school 	hours 	so long
as 	the 	assignment 	is not 	discriminatory 	(60 OPS Ag 	365). 	All
athletic 	activities 	conducted 	during or 	after 	school must 	be
held 	under 	the 	direct 	supervision of 	a certificated employee
(Cal. Admin. Code, 	title 5, section 5531). 	Teachers who coach
after 	school 	are 	required 	to 	receive 	extra 	compensation
(Education Code section 45023.5).
1 4 This 	decision does 	not 	address 	the 	assignment 	of
coaching 	duties 	which 	are 	performed 	substantially 	within 	normal
work hours 	or 	where 	normal 	workload 	is 	reduced 	to 	accommodate
the 	assignment.
21

the 	employer 	and 	its 	employees. 	The 	employer's 	right to offer
educational programs 	and staff 	such programs with competent
licensed 	personnel 	is 	essential 	to 	its mission. 	The 	teachers'
interest 	in 	(1) 	having adequate notice prior 	to being assigned
duties requiring evening work or 	(2) 	ensuring 	that such 	after
hours 	work 	is distributed 	evenly is 	equally as 	fundamental 	as
their 	interest 	in 	being 	compensated when required to work such
hours. 	The negotiation process 	is 	the 	best means 	to
accommodate the interest of 	both the employer 	and employees.
In Jefferson School District 	(6/19/80) 	PERB Decision
No. 	133,15 the 	Board found negotiation proposals 	relating to
the 	procedure for 	assignment of work impacted upon preparation
time, rest breaks or 	time beyond the normal workday.
The interest which employees 	have in a fair
rotation of duties 	as 	a method of assignment
of tasks is obvious. 	. 	. 	. On the other
hand, duty rotation does 	not 	illegally
interfere 	with 	the 	employer's legitimate
interest in seeing that work gets 	done or
this 	proposal 	does 	not prevent 	the District
from 	assigning work to the 	bargaining unit.
In Walnut Valley Unified School District 	(3/30/81) 	PERB
Decision No. 	160 PERB held that policies governing the
selection of 	employees to work overtime was negotiable.
Under 	its 	duty to negotiate the 	employer may continue 	to
unilaterally 	determine 	whether 	co-curricular 	activities 	should
15The 	decision 	is 	currently on 	appeal 	and 	is 	not 	cited 	as
precedent, 	but 	it is 	instructive 	of Board 	views.
22

be offered. 	Negotiation of procedures for selection of
employees 	to perform the work, combined with negotiations of
the 	hours' 	of work and wages to be paid does not abridge the
District's authority to direct 	its 	operations. 	Once 	it has met
its 	bargaining obligation, 	the District may assign individual
teachers 	to perform 	co-curricular 	duties 	consistent 	with
contract 	provisions.
Other 	public jurisdictions 	have 	found the assignment of
coaching duties subject to negotiations. 	Beacon City School
District (1981) 14 NY 3084 	(policy requiring all new PE
teachers to coach up to two sports 	if no qualified volunteers
subject 	to negotiations); 	West Hartford Education Association
v. Decourcy 	(1972) 162 CONN 566 	[295 A.2d 526] 	(assignment of
teachers 	to extra-curricular 	activities 	and compensation
negotiable).
(4) 	Contract Waiver
The District asserts 	that 	several portions 	of 	the contract
authorize 	it to 	assign co-curricular 	duties 	as well 	as 	other
duties 	to teachers.
PERB has 	repeatedly held that waiver 	of 	the statutory right
to 	bargain a mandatory subject will not 	be lightly inferred.
The relinquishment must be "clear 	and unmistakable" 	to be
effective. 	Amador Valley Joint Union High School District
(1978) PERB Decision No. 74, NLRB v. C & C Plywood (1967) 148
NLRB 414, 416 affirmed 385 US 421 [17 L.Ed.2d 486]. 	This same
23

close scrutiny applies 	to waiver 	clauses 	in collective
bargaining agreements as to implied waivers. 	The NLRB closely
scrutinizes 	contract language where 	it 	is 	asserted 	to justify
unilateral action by the employer. 	In New York Mirror 	(1965)
151 NLRB 834 	[58 LRRM 1465], the NLRB held that i t ,
. 	. 	. will not find that contract terms of
themselves confer on the employer a
management 	right 	to take 	unilateral action
on a mandatory subject of 	bargaining unless
the contract expressly or 	by necessary
implication confers 	such a 	right.
Contract waivers 	are generally upheld when the language
specifically refers 	to 	the subject 	upon which 	bargaining 	is
sought, and the language 	is clear 	or 	bargaining history
determines 	that 	the 	union 	consciously yielded the 	right to
negotiate. 	See Nevada Cement Co. (1970) 181 NLRB 738 [74 LRRM
1013] .
The parties clearly negotiated certain aspects of
performing co-curricular 	activities. 	The contract 	contains 	an
appendix which lists 	a separate wage schedule for 	the
performance of each co-curricular activity. 	The agreement of a
stipend payment 	implies 	that 	an employee 	is required to work
whatever 	hours 	are necessary to successfully complete the
activity. 	The negotiation of wages and hours does not waive
the District's obligation to 	bargain other 	aspects of
assignment.
The 	District 	relies 	on the 	"management 	rights" 	clause which
specifies 	that 	the 	District 	retains 	the 	"right 	to 	. . .
24

assign . 	. 	. employees." 	The contract also contains a standard
zipper 	clause.
From all of 	the evidence presented, 	it is found that 	the
"management 	rights" clause is limited to authorizing the
District to assign work customarily expected to be performed by
teachers during their workday. 	The language does not indicate
that 	the Association consciously waived 	its 	right 	to negotiate
assignment of work on Saturdays or Sundays, for example, or for
coaching duties outside the workday. 	This narrow
interpretation of the "management rights" clause is based upon
the following factors: 	(1) 	the contract was negotiated in a
context where the District had never 	communicated any intent to
assign teachers 	to perform co-curricular 	activities without
seeking volunteers, and no discussion of such change occurred
at the table; 	(2) 	the "hours1 of employment" provision
specifically authorizes 	the District 	to 	assign teachers 	to
participate in "adjunct duties." 	No such authorization exists
for 	co-curricular duties. 	Adjunct duties - such as supervision
at open house, graduation ceremonies or 	athletic activities -
are ad-hoc events requiring substantially less 	time than
coaching or other co-curricular activities. 	The hours1 of
employment 	provision 	also lists only functions specifically
related to teaching - such as parent conferences or 	attendance
at faculty meetings - which are required to be performed even
25

if 	they occur outside the 	normal workday. 	It 	is 	reasonable to
assume a specific authorization 	to assign 	co-curricular 	duties
similar 	to adjunct duties 	is 	prerequisite to finding a waiver.
The contract does not waive 	the District's duty to
negotiate 	procedures 	for 	assigning 	co-curricular 	activities 	to
teachers which are required to be performed beyond the normal
workday.
(5) 	Conclusion
The District's assignment of coaching to Dave Boe, combined
with the threat that other teachers would 	be disciplined if
they refused an assignment, 	is found to constitute a unilateral
change of work conditions in violation of section 3543.5 (c).
The 	violation 	necessarily 	interferes 	with 	unit 	employees'
rights 	to representation pursuant to section 3543.5 (a) 	and
denies 	the 	employee organization the 	right of 	exclusive
representation afforded by section 3543.5 (b). 	San Francisco
Community College District 	(10/12/79) 	PERB Decision No. 105.
B. 	Imposition of Discipline Short of Dismissal
The school board imposed a 10-day suspension upon David Boe
in January 1982 for 	refusing to carry out the 	coaching
assignment. 	This disciplinary action combined with Maruca's
threat that 	any teacher who refused a coaching assignment would
be disciplined constitutes 	a policy, although disciplinary
action was taken against a single employee. 	The record
26

indicates no previous imposition of discipline short of
dismissal by the District 	against 	teachers.16
(1) 	Discipline is Negotiable
It is apparent that PERB would find the subject of
discipline short of dismissal for teachers within the scope of
bargaining under the Anaheim test. 	Anaheim Union High School
District, supra. 	Although the board has not decided the
precise 	issue 	for 	certificated employees, 	its 	rationale in two
other cases is analogous. 	In Healdsburg Union High School
District 	(6/19/80) 	PERB Decision No. 132, at p. 81, PERB found
those 	aspects of discipline for 	classified employees not
preempted by the Education Code to be negotiable. 	In
San Bernardino City Unified School District 	(10/29/82) 	PERB
Decision No. 255, rules of conduct for teachers which could
result in disciplinary action were held to be mandatory
subjects for bargaining. 	PERB found that the employer's duty
to negotiate work rules did not abridge the employer's
management prerogatives 	because the District reserved its
inherent 	right to initiate discipline. 	This statement
reinforces 	that standards 	and procedures 	for 	discipline are
indeed negotiable.
16
MEA 	did not allege that reprimands imposed by the
District constituted a 	unilateral change. 	Therefore, 	the
decision does not address whether 	the District had authority to
impose reprimands without prior negotiations.
27

Effective January 1, 	1982, Chapter 	1093, 	Statutes 	of 1981
(Assembly Bill 	777) 	amended 	the 	scope 	of 	representation 	section
of 	the EERA by changing 	section 	3543.2 to section 	3543.2(a) 	and
adding subsections 	(b) 	and 	(c) .
Section 3543. 2(b) states:
Notwithstanding 	section 	44944 	of 	the
Education Code, 	the 	public school 	employer
and 	the 	exclusive 	representative 	shall, 	upon
request 	of 	either 	party, 	meet 	and negotiate
regarding causes 	and 	procedures 	for
disciplinary action, 	other 	than 	dismissal,
affecting certificated employees. 	If 	the
public 	school 	employer 	and 	the 	exclusive
representative 	do 	not 	reach 	mutual
agreement, 	then the 	provisions 	of 	section
44944 	of 	the 	Education 	Code, 	shall 	apply.17
It 	is 	irrelevant 	to 	this 	decision 	to 	determine 	the 	precise
legislative 	intent 	of Chapter 	1093, 	provided PERB 	would find
that 	the District 	had a 	duty 	to 	bargain 	discipline 	short 	of
dismissal 	both 	under 	the 	prior 	scope 	of 	representation 	language
in 	section 	3543.2 	and 	following 	the 	amendment.18
17Education 	Code 	section 	44944, 	grants 	a teacher 	who 	is
notified 	of 	intended 	dismissal 	the 	right 	to 	a 	hearing 	conducted
by 	a 	three-person commission on professional 	competence. 	This
section 	provides 	for 	hearing 	procedures, 	selection of 	the 	panel
and payment 	of 	costs. 	It specifies 	that 	the 	commission may
determine only whether 	the 	employee 	should 	be 	dismissed or 	not
dismissed. 	The 	decision 	is 	binding on 	the 	public school
employer .
1 8 See Monrovia Unified School District 	(12/31/82), 	Case
No. 	LA-CE-1552, 	Proposed ALJ Decision, 	for an extensive
interpretation of 	the 	effect 	of 	Chapter 	1093 	by 	this 	author.
The 	decision 	is 	not 	precedential.
28

Although 	the 	disciplinary action was 	recommended 	prior 	to
the 	effective 	date of Chapter 	1093, 	the District 	board did not
impose the suspension until January 1982. 	Thus, 	the new
statute 	applies 	to determine whether 	an 	unfair 	practice
occurred. 	The new legislation impliedly created 	an 	unfair
practice when 	a school 	employer 	imposes 	disciplinary action
short 	of 	dismissal upon teachers 	in the 	absence of a 	bargained
for 	contract 	authorizing 	the 	action.
(2) 	Contract Waiver
As stated earlier 	herein, 	the waiver 	of 	the 	right 	to
bargain over 	a subject must 	be 	"clear 	and 	unmistakable" 	to 	be
effective. 	Amador Valley Union High School District 	(10/2/78)
PERB Decision No. 74.
The 	clearest 	example of 	waiver 	exists 	whether 	the 	contract
includes 	a specific 	unambiguous 	term 	covering 	the subject 	in
question combined with a 	zipper 	clause prohibiting reopening of
the subject. 	Nevada Cement Co. 	(1970) 181 NLRB 738 	[74 LRRM
1013] .
The 	District 	contends 	that 	the 	contract 	"management 	rights"
clause expressly authorizes suspension of 	teachers. 	The 	clause
grants 	the 	District 	"the 	right 	to 	. 	. 	. 	suspend 	and 	terminate
employees." 	Suspend means 	". 	. 	. t o 	cause to withdraw
temporarily from 	any privilege, 	office 	or 	function," 	Webster's
Third New International Dictionary 	unabridged 	(1976). 	It 	is
apparent 	that 	the 	action to relieve Dave 	Boe from 	teaching
29

duties 	for 	10 	days 	without 	pay was 	a 	suspension which 	falls
within 	the meaning of 	the 	contract 	term.
The 	contract 	contains 	no 	provisions 	relating 	to 	grounds 	for
suspension, procedures 	or 	other 	limitations 	which 	could serve
to modify 	the 	"management 	rights" 	language.19
A determination 	of 	waiver 	is 	not 	limited 	to 	acceptance 	of
contract 	terms 	on their 	face. 	The 	words must 	be 	understood 	in
the 	context 	of 	the 	history of 	negotiations 	which 	gave 	rise 	to
their 	inclusion, 	Steel Workers 	v. 	American Manufacturing Co.
(1960) 	363 U.S. 	564, 	567. 	McDonnell Douglas Corporation 	(1976)
224 NLRB 881, 887.
The 	identical 	language 	has 	appeared 	in each 	of 	three
contracts 	negotiated 	by 	the 	parties 	between 	1977 	and 	the
present. 	No evidence 	was 	presented 	regarding negotiation
history 	for 	any 	of 	the 	contracts 	or 	regarding 	the meaning 	of
the 	term 	"suspend."
In the 	face 	of 	a contract 	authorization granting 	the
District 	the 	right 	to take 	the specific 	action 	of 	suspension,
the 	burden 	rests 	with 	the 	Charging 	Party to 	demonstrate 	a
different 	understanding 	by extrinsic evidence. 	This 	burden 	has
not 	been met.
In 	its 	brief MEA briefly states 	" . . . 	there 	is 	no 	evidence
that 	this 	contractual language 	is meant 	to 	do 	any more 	than
19Contrast 	the 	"assignment" 	provision which was 	accorded
a 	narrow meaning 	because 	other 	contract 	terms 	so 	indicated.
30

restate 	the District's Education Code 	rights" 	(to suspend for
limited 	purposes). 	Without 	the 	support 	of 	either 	negotiation
history evidence or 	additional 	argument, 	this 	bare 	assertion 	is
insufficient 	in the 	face 	of 	the 	specific relinquishment 	of 	the
right 	to 	suspend.20
Accordingly, 	it 	is 	found 	that 	the Association 	negotiated
and waived 	its 	right 	to 	review or 	object 	to 	the 	imposition 	of
suspensions 	during 	the 	contract 	duration. 	Although 	the
contract 	authorizes MEA 	to 	reopen 	negotiations 	annually on 	a
subject 	of 	its 	choice, 	the 	record does 	not 	indicate 	that
suspension 	has 	been 	proposed 	for 	bargaining 	other 	than 	the
objection 	to 	the 	employer's 	action 	against Boe.
The 	passage 	of Chapter 	1093 	effective January 	1, 	1982 	did
not 	overturn 	the 	District's contract 	authority. 	The 	amendment
prohibits 	an 	employer 	from 	imposing 	any 	disciplinary 	action
short 	of 	dismissal 	unless 	authorized 	by 	a 	contract. 	No
allegation 	is made 	that 	actions 	other 	than 	suspension 	have 	been
imposed 	after 	January 	1, 	1982. 	Having 	found MEA bargained over
20A 	possible 	claim 	that 	the 	contract 	disciplinary action
against Boe would 	not 	be 	authorized 	by 	the Education Code 	is
not 	determinative 	of 	whether 	a waiver 	occurred 	in bargaining.
In 	another 	case 	I 	have 	considered 	and 	adopted 	an 	argument
showing 	that 	the 	lack of 	statutory authorization 	for
disciplinary actions 	short 	of 	dismissal 	supports 	a 	limited
meaning of 	a disciplinary language 	in 	a 	"management 	rights"
clause. 	(See 	Proposed Decision Monrovia Unified School
District 	(12/31/82) 	LA-CE-1552, 	not precedential.) 	No such
argument 	was 	offered 	here.
31

suspension, 	it must 	be 	imputed 	that 	bargaining 	over 	causes 	and
procedures 	for 	suspension 	were 	waived 	at 	the 	same 	time. 	Thus,
no 	v i o l a t i o n 	occurred.
I I I . 	DENIAL OF REPRESENTATION
The 	Association 	alleges 	that 	the 	D i s t r i c t 	violated
section 	3543.5(a) 	and 	(b) 	by 	denying 	union 	representation 	to
Boe 	at 	the meeting 	with Maruca on June 	1 1 .
Several 	sections 	of 	the 	EERA 	address 	representational
r i g h t s . 	Section 	3540 authorizes 	employees 	to 	be
" . . . 	represented 	b y 	such 	organizations 	i n 	t h e i r 	professional
and 	employment 	r e l a t i o n s h i p s 	with 	public 	school 	employers."
Section 	3 543 	authorizes 	employees 	to 	p a r t i c i p a t e 	in 	unions
" . . . 	for 	the 	purpose 	of 	representation on 	a l l 	matters 	of
employer/employee 	r e l a t i o n s . " 	Similarly, 	section 	3543.1 (a)
empowers 	employee 	organizations 	to 	". 	. 	. 	represent 	their
members 	i n 	t h e i r 	employment 	r e l a t i o n s . 	. . . "
Both 	the 	representational 	r i g h t s ' 	of 	employees 	and 	employee
organizations 	are 	enforced 	as 	unfair 	p r a c t i c e s . 	In 	enforcing
the 	right 	to 	representation, 	PERB 	has 	adopted 	the 	NLRB 	rule
enunciated 	in NLRB v. Weingarten 	(1963) 	420 	U.S. 	[88 	LRRM
2689]. 	See Marin Community College D i s t r i c t 	(11/19/80) 	PERB
Decision No. 	145. 	Weingarten 	upheld 	the 	right 	of 	an 	employee
to 	union 	representation 	upon 	request 	when 	called 	to 	an
investigative 	interview 	which 	the 	employee 	reasonably 	believes
might 	r e s u l t 	in 	d i s c i p l i n e . 	Whether 	the 	interview 	may 	lead 	to
32

disciplinary action 	is 	an objective 	determination 	and 	is 	not
viewed 	through 	the 	subjective 	beliefs of 	the 	affected
employee. 	The 	rule 	has 	also 	been 	approved 	by California
courts. 	Civil 	Service Association v. 	City and County of 	San
Francisco 	(1978) 	22 Cal.3d 553 	[150 Cal.Rptr. 	129], Robinson v.
State Personnel Board 	(1979) 	97 	Cal.App.3d 	994 	[159 	Cal.Rptr.
222] .
The 	following 	facts 	in the 	present 	case 	indicate 	that Boe
was 	entitled 	to representation 	at 	the June 	11th meeting. 	The
meeting was 	called on 	the 	same 	day 	that 	Boe 	and 	the Association
had 	presented 	a letter 	to 	the District 	indicating 	that 	the
employee 	would not 	obey a 	directive 	to coach. 	Maruca 	had
informed 	the Association 	president 	that 	any 	teacher 	who refused
a coaching 	assignment 	would 	be 	fired. 	The 	meeting 	apparently
was 	not 	one 	in which 	the 	principal 	was 	to 	announce 	an 	intent 	to
discipline 	previously determined 	because 	no 	discipline 	was
announced 	until 	a 	letter 	was 	issued 	from 	the 	superintendent 	on
November 	11. 	Although 	no 	grievance 	had 	actually been 	filed,
the 	apparent 	purpose 	of 	the meeting was 	to 	discuss Boe's
written 	responses 	to the 	directive 	to coach. 	Boe 	testified
that 	the 	principal 	told 	him 	he would 	be 	in serious 	trouble 	for
insubordination 	if 	he 	did not 	attend 	the meeting. 	Although
Maruca 	informed 	Boe 	that 	the meeting was 	not 	to 	discuss
discipline, 	his 	angry manner 	in 	the 	hallway confrontation
combined 	with Boe's 	knowledge 	of 	the 	previous 	"firing"
33

statements 	would 	create 	a 	reasonable 	belief 	t h a t 	d i s c i p l i n e
would 	be 	forthcoming.
The 	D i s t r i c t ' s 	contention 	that 	Boe 	v o l u n t a r i l y 	dismissed
his 	r e p r e s e n t a t i v e 	at 	the 	commencement 	of 	the 	meeting 	is 	not
c r e d i b l e . 	Maruca 	refused 	to 	hold 	the 	meeting 	with 	the
r e p r e s e n t a t i v e 	present. 	Boe 	asked Ms. 	Keller 	to 	leave 	because
he 	f e l t 	he 	was 	in 	enough 	t r o u b l e . 	Relinquishing 	the 	r i g h t 	to
r e p r e s e n t a t i o n 	under 	t h r e a t 	of 	insubordination 	cannot
c o n s t i t u t e 	a 	meaningful 	waiver.
It 	is 	therefore 	found 	t h a t 	the 	actions 	of 	Maruca 	on 	June 	11
denied 	David 	Boe 	his 	r i g h t 	to 	r e p r e s e n t a t i o n 	in 	v i o l a t i o n 	of
s e c t i o n 	3543.5(a) 	and 	further 	denied 	the 	Association 	the 	r i g h t
to 	represent 	a 	unit 	employee 	in 	v i o l a t i o n 	of 	section
3 5 4 3 . 5 ( b ) . 2 1
IV. 	DISCRIMINATION BECAUSE OF PROTECTED ACTIVITY
Section 	3543.5(a) 	p r o t e c t s 	employees 	from 	r e p r i s a l s ,
t h r e a t s 	of 	r e p r i s a l 	or 	discriminatory 	treatment 	because 	of
t h e i r 	e x e r c i s e 	of 	r i g h t s 	guaranteed 	by 	the EERA. 	A 	v i o l a t i o n
may 	be 	found 	only where 	a 	nexus 	between 	employee 	r i g h t s 	and
employer 	discrimination 	e x i s t s . 	Carlsbad 	Unified 	School
21PERB has 	r e c e n t l y 	found 	a 	r i g h t 	to 	r e p r e s e n t a t i o n 	in 	a
grievance 	proceeding 	although 	no 	i n v e s t i g a t i o n 	interview 	is
conducted. 	Rio 	Hondo 	Community College 	D i s t r i c t 	(12/28/82)
PERB 	Decision No. 	272. 	That 	a n a l y s i s 	is 	not 	considered 	here
because 	no 	grievance 	had 	been 	f i l e d .
34

D i s t r i c t 	(1/30/79) 	PERB Decision No. 	89, 	Novato Unified School
District 	(4/30/82) 	PERB Decision No. 	210.
The Charging 	Party 	has 	the 	i n i t i a l 	burden 	to demonstrate:
(1) 	An 	employee's 	exercise of 	an 	activity which 	is 	protected;
and 	(2) 	facts 	sufficient 	to 	infer 	a 	nexus 	between 	employer
r e t a l i a t o r y 	action 	and 	exercise 	of 	the 	protected 	r i g h t . 	Motive
or 	anti-union 	animus may 	be shown 	by circumstantial evidence.
Novato 	Unified 	School 	D i s t r i c t , 	supra.
Upon 	a sufficient showing 	by the Charging 	Party, 	the 	burden
shifts 	to 	the 	employer 	to 	demonstrate 	a 	legitimate 	reason 	for
i t s 	conduct 	to 	prove 	that 	it 	would 	have 	taken 	a 	similar 	action
despite 	the 	employee's 	exercise 	of 	the 	protected 	a c t i v i t y .
The 	various 	a c t i v i t i e s 	of Boe 	and 	the District 	are 	f i r s t
reidentified.
Boe's 	Activities
(1) 	Boe 	resisted 	the 	prospective 	coaching assignment 	and
raised 	a 	claim 	about 	i t s 	unreasonableness. 	All 	acts 	of
resistance 	including 	his 	grievance 	and 	the MEA unfair 	practice
charge 	occurred 	prior 	to 	the 	actual 	date 	of 	the 	assignment.
(2) 	Boe 	refused 	to perform 	the 	work assignment 	effective 	the
f i r s t 	day 	performance 	was 	required 	and 	persisted 	in 	his 	refusal
throughout 	the 	attempted 	assignment.
D i s t r i c t ' s 	Actions
Between May 1981 	and January 1982 	the District 	and 	i t s
agents 	took 	the 	following actions 	against Boe or MEA members
35

generally: 	(1) 	Principal Maruca threatened to fire 	any teacher
who 	refused to coach; 	(2) 	Maruca placed 	incident 	reports 	in
Boe's file on November 	13 and 	26 for 	his failing to return
to campus 	as 	directed; 	(3) 	Maruca 	allegedly persisted in
enforcing 	the 	assignment when other 	teachers 	volunteered;
(4) 	Superintendent Heinsohn 	issued 	four 	reprimands 	to Boe -
November 17, 18, 	19 and 20 - after Boe refused to report to
duty; 	(5) 	the District Board suspended Boe for 	10 days without
pay in January 1982, 	following an advisory arbitration award
denying Boe's grievance 	and a Board hearing over 	the
disciplinary 	action.
Protected 	Activity
The 	crucial 	preliminary issue 	is whether Boe's activity was
"protected" by the EERA.
Section 	3543 of 	the Act broadly describes 	the right of
employees to participate in the activities 	of 	an 	employee
organization for 	the 	purpose of 	representation on all matters
of 	employer-employee relations. 	Section 3543 of 	the EERA is
similar 	to the 	section 	7 and section 	(9)(a) 	of 	the National
Labor Relations Act except for 	the 	presence of language 	in the
NLRA authorizing private employees 	to engage 	in "concerted
activities 	. 	. 	. 	or 	other mutual aid or 	protection."22
22 Section 7 of the NLRA reads:
. 	. 	. 	Employees shall have the right to self
organization, 	to form, 	join or 	assist labor
36

Under 	both statutes, 	employees 	are given the right to
"represent 	themselves 	individually in their 	employment
relations" as long as they do not meet and negotiate when there
is an exclusive representative. 	Employees 	are also granted the
right to "present grievances 	. 	. 	. 	without the intervention of
the 	exclusive 	representative."
MEA claims that although Boe was not an active union
member, his protest and refusal 	to carry out 	the District's
unilateral change in working conditions represented a protected
activity.
The District 	unilaterally changed the procedure for
obtaining coaches. 	Dave Boe was presented with the District's
attempt to implement the changed working conditions 	upon him.
Boe was not at all active in the union. 	He protested the order
because he 	believed it was 	discriminatory and violated the
collective 	bargaining agreement.
The right of a small group of employees to complain about
alleged contract violations by the employer 	have been held
organizations, 	to bargain collectively through
representatives of their own choosing, 	and to
engage 	in other 	concerted activities 	for 	the
purpose of collective 	bargaining or other
mutual aid or protection, and shall also have
the 	right to refrain from any or 	all of such
activities 	except 	to the 	extent 	that 	such
right may be affected by an agreement
requiring membership in a labor 	organization
as a condition of 	employment as authorized in
section 	8(a)(3).
37

protected. 	Baldwin Park Unified School District 	(6/30/82) 	PERB
Decision No. 221 citing NLRB v. Washington Aluminum Company,
Inc. 	370 U.S. 	9, 16 	(1962). 	The NLRB has held such conduct to
constitute 	an 	informal grievance 	attempting to enforce 	the
contract 	rights 	of 	all 	unit 	employees 	even though 	the 	asserted
claim is later 	found to be erroneous. 	The 	protection has 	been
extended to the acts 	of 	a single employee 	by the NLRB. 	See
Interboro Contractors, Inc. 	(1966) 	151 NLRB 1295 	[61 LRRM 1537]
enfd 	(2nd Cir 1967 388 F. 2d 495 	[67 LRRM 2083]; John Sexton
and Company, a Division of Beatrice Food Co. 	(1975) 	217
NLRB 80; 	Duchess Furniture, 	a Division of National Service
Industries, 	Inc. 	(1976) 	222 NLRB 42.
Boe 	complained 	in the face of 	the 	employer's 	proposed
improper 	action. 	He also filed a grievance 	regarding the
matter. 	The 	contract required 	him to obey the District 	order
during the 	pendency of 	the 	grievance. 	He had a protected right
to file 	an 	unfair 	practice 	charge on 	his 	own 	behalf 	alleging 	a
refusal 	to 	bargain by the 	District. 	South San 	Francisco
Unified School District 	(1980) 	PERB Decision No. 	112.
Alfred M. 	Lewis, 	Inc. v. NLRB 	(9th Cir 1978) 	587 F.2d 403 	[99
LRRM 2841]. 	He did not file a charge but MEA did file an
unfair 	practice 	charge 	on July 6, 	1981 	specifically alleging
that 	the implementation of 	the 	coaching 	assignment 	policy was
to be 	unfairly applied 	to 	Boe.23 Each of Boe's 	activities 	in
23The charge was 	filed well 	in advance of 	the 	action
38

challenging 	the 	assignment 	prior 	to its 	effective date were
protected against reprisals by the District because he was
asserting an 	employment claim which affected all 	unit members.
In contrast Boe's actual 	refusal 	to perform 	the 	assigned
duty is 	not 	protected conduct. 	In Konocti Unified School
District 	(6/29/82) 	PERB Decision No. 217, PERB found that
employee activity must 	be in pursuit of lawful objectives 	and
carried out 	in a proper manner. 	(Emphasis added.)
While Boe's objective 	in challenging the District's
unilateral change was proper, his refusal 	to work and refusal
to follow contract requirements 	(work and 	grieve) 	created a
potential 	disruption24 of 	the 	employer's educational
program. 	Boe 	did not refuse the 	assignment for safety
reasons.25
proposed by the District to be effective 	in November. 	The
charge did not allege that a subsequent PERB remedy against
the District could not 	restore Boe to the status quo ante nor
did 	it 	seek 	an 	injunction.
24Actual disruption has not been required by PERB to find
unprotected activities. 	See Palos Verdes Pennisula Unified
School District 	(2/26/82) 	PERB Decision No. 195 	(teachers
refusal to give final exams 	as 	pressure tactic during
negotiations 	unprotected); 	Santa Clara Unified School District
(1979) PERB Decision No. 104 	(insubordinate conduct which
threatens 	employer's ability to maintain order 	is 	unprotected);
Department of Transportation 	(11/16/82) 	PERB Decision No. 	257-S
(activities 	for 	purpose of humiliating supervisor 	not 	related 	to
legitimate 	employee interest is 	unprotected) .
Also see Morris, Developing Labor Law, pp. 124-128, 	529-535.
25A refusal 	to obey a work order 	for 	personal safety
39

Boe's 	individual 	refusal 	to 	work 	is 	distinguished 	from
c e r t a i n 	protected 	union 	organized 	and 	sanctioned 	work 	stoppages
taken 	in 	protest 	of 	an 	employer's 	unfair 	practices. 	See Mastro
P l a s t i c s Corp. v. 	NLRB 	(1956) 	350 U.S. 	270 	[137 LRRM 2587];
Modesto City Schools 	(1980) 	PERB Decision IR-12 	and Fremont
Unified School 	D i s t r i c t 	(6/29/80) 	PERB 	Decision No. 	136.2 6
Boe 	sought 	advice 	from MEA regarding 	his 	intention 	to
individually refuse 	to 	coach. 	No 	evidence 	was 	offered 	to 	show
the 	organization 	sanctioned 	or 	supported 	his 	refusal 	to 	work 	in
contrast 	to 	the 	active 	support 	of 	his 	case 	through 	legal
remedies.
Union 	sponsored 	a c t i v i t i e s 	are 	subject 	to 	unfair 	practice
charges 	pursuant 	to 	section 	3543.6. 	PERB 	may 	ultimately
reasons 	is 	protected 	under 	the 	NLRA. 	(29 	USC 	section 	143.)
NLRB v. Knight Morely Co. 	(CA 6195 7) 	251 F. 2d 753 	[41 LRRM
2242] 	c e r t , denied 	357 U.S. 	927 	[42 LRRM 2307] 	(1958).
26Whether a work stoppage 	is 	protected 	under 	the NLRA
depends 	upon 	several 	factors: 	(1) 	seriousness 	of 	the
employer's 	unfair 	p r a c t i c e , 	(2) 	whether 	the 	action 	violates 	a
contract 	no-strike 	clause, 	(3) 	whether 	the 	action 	is 	"wildcat
or 	sanctioned. 	Dow Chemical Company 	(1974) 	212 NLRB 333 	[87
LRRM 1279]; 	NLRB v. 	Blades Mfg. Corp. 	(CA 8 1965) 	344 F.2d 998
[59 LRRM 2210] .
27Government 	Code 	section 	3543.6.
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	t o :
(a) 	Cause or 	attempt 	to 	cause 	a 	public
school 	employer 	to 	violate 	Section 	3543.5.
(b) 	Impose 	or 	threaten 	to 	impose 	r e p r i s a l s
on 	employees, 	to 	discriminate 	or 	threaten 	to
27
40

review 	both the 	employer's 	illegal conduct 	and the 	union's
responsive activity and impose remedial sanctions on both
parties 	if necessary. 	In contrast no unfair 	practice may lie
against an individual employee who takes 	retaliatory action
into his own hands against an employer 	because of an alleged
unfair 	practice. 	Such 	individual conduct 	is unprotected
because 	it 	(1) 	undermines 	the relationship between the
exclusive representative and the employer 	by circumventing the
normal processes for 	resolution of 	disputes, 	(2) 	violates 	the
contract obligation to grieve 	f i r s t , and 	(3) 	creates 	a severe
threat 	to the 	employer's 	ability to operate 	the educational
program.
Disciplinary Action By the District
While an employer may discipline an employee engaged in
unprotected activity, a violation occurs 	where the motivation
is 	based upon anti-union animus. 	Palos Verdes Peninsula
Unified School District 	(2/26/82) 	PERB Decision No. 195. 	Here
discriminate against employees, or 	otherwise
to 	interfere with, 	restrain, 	or 	coerce
employees 	because of their exercise of
rights guaranteed 	by this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and negotiate in
good faith with a public school 	employer of
any of 	the 	employees 	of which 	it is 	the
exclusive 	representative.
(d) 	Refuse to participate 	in good faith 	in
the impasse procedure set forth in Article 	9
(commencing with Section 3548).
41

Boe engaged in 	both protected and 	unprotected activities.
Several actions were taken by the District prior 	to Boe's
actual refusal 	to 	coach. 	It 	is 	also necessary to determine
whether 	the 	discipline ultimately imposed was motivated solely
based upon his 	unprotected conduct or 	based upon his prior
protected actions. 	Each district 	action 	is reviewed to
determine whether a violation of section 3543.5 (a) 	occurred.
1. 	Maruca's Statements
Principal Maruca made two statements which may evidence
anti-union 	animus.
Maruca told MEA president Barker that he would fire any
teacher who refused to coach. 	The statement was an informal
response to Barker's statement of MEA's position during a lunch
room conversation.
The 	statement 	if 	viewed 	in isolation could constitute a
threat 	of 	retaliation for 	any 	unit member's exercise of 	the
protected right to protest an assignment. 	The record does 	not
indicate that Barker told anyone other 	than Boe about the
statement. 	In fact, MEA actively assisted 	in activities 	to
protest the new ad hoc assignment policy. 	The record also
indicates 	that Maruca did not 	threaten Boe individually with
discipline for 	protesting the 	assignment nor was the 	general
threat 	ever 	raised again after 	the 	brief 	lunch 	room 	exchange.
No evidence showed that any other 	unit member was threatened.
Certificated employees may be terminated only for 	cause and
42

pursuant to Education Code procedures. 	Maruca's statement, 	in
the 	context of 	his limited authority and the lack of follow-up
discipline, must be construed as an advance warning that an
actual 	refusal 	to carry out 	an order 	in the 	future could result
in disciplinary action. 	A threat imposed against 	unprotected
conduct with no showing of animus does not constitute a
violation of 	section 	3543.5(a).
On November 	3rd Maruca told Tom Beveridge, a teacher, that
Boe was initially assigned because of a "hidden agenda." 	No
anti-union animus was 	found from that 	statement. 	Beveridge
believed it meant that a school 	board member wanted Boe
assigned in May. 	At the time of 	the assignment Boe had
participated in no union activities. 	The motive for 	the
assignment was 	non-union related.
2. 	Reprimands for Leaving Campus
Maruca reprimanded Boe on November 13 for 	refusing to
report to the 	principal's 	office 	in the late 	afternoon. 	MEA
attempted to show that Maruca had a discriminatory motive by
proving that Boe's 	departure from campus during the last 	period
was consistent with the current practice. 	The reprimand was
not 	issued for leaving 	campus, 	but for 	failing to return upon
request. 	No proof was offered to show Maruca's discipline was
inconsistent 	with the treatment to other 	teachers who refused a
directive. 	Nor was any showing made that the incident report
was too severe or 	unjustified under the circumstances. 	MEA has
43

failed to raise 	the 	inference that 	protected activity was 	a
motivating factor 	in the 	reprimand. 	Therefore, no violation is
found.
3. 	Volunteers
MEA contends 	that Maruca persisted in forcing the
assignment against Boe when two other teachers volunteered. 	If
proven, such conduct could demonstrate a motivation to "set 	up"
Boe for 	contesting the validity of 	the original 	assignment.
The findings do not sustain the allegation. 	This determination
assumes 	the District has a right to screen volunteers 	based
upon their 	qualifications 	and ability to coach.
Rob Barker suggested to Maruca he would volunteer for 	the
assignment 	in July. 	Relying on Barker's testimony that
Maruca's 	discouragement was for 	Barker's 	own 	benefit, 	it 	is
found that Barker 	did not pursue his own suggestion. 	Barker
never 	actually applied for 	the 	coaching 	position.
Carol Broberg filed a written 	request 	to volunteer 	in late
October. 	Broberg indicated she volunteered 	because of the
problem with Dave Boe. 	The request was denied on the basis
that she had recently taken a medical leave of absence and also
had no coaching experience. 	The school board had recently
indicated its displeasure with the lack of success of 	the
girls' 	basketball program. 	It is 	reasonable to infer 	that 	a
successful team was a priority. 	Broberg's lack of experience
and illness 	formed a reasonable basis for 	denial of 	the request.
44

The fact that no one was 	assigned to coach to replace Boe
must be considered. 	Because of 	the small size of 	the junior
varsity team, 	the 	varsity coach handled 	both teams. 	Given the
late date of Broberg's request, 	that 	a grievance over 	the
assignment 	had 	proceeded to arbitration 	and the 	valid reasons
for 	the District's denial, 	the 	incident 	does 	not 	constitute a
violation of 	section 	3543.5(a).
4. 	Reprimands 	for Failing to Report 	for Coaching Duty
Reprimands were placed in Boe's 	personnel file on
November 	17, 	18, 	19 and 	20 for 	failing to report for 	coaching
duty on those days. 	Having found that Boe's refusal 	to perform
the 	assignment was 	unprotected, the discipline was 	related to a
legitimate 	purpose. 	Based upon the findings above, 	there is
nothing in the 	record to indicate that Boe was 	reprimanded for
any reason other 	than his refusal 	to 	perform the 	coaching
duties when 	assigned.
5. 	Suspension
On November 	30, 	Superintendent Heinsohn notified Boe that
he would be suspended one day without pay for each day he
refused to report 	for 	coaching. 	Boe appealed the 	decision.
After a hearing the 	board suspended Boe for a total of 10 days
without pay. 	No evidence was presented to show that the school
board harbored anti-union animus against Boe or imposed the
discipline 	because of 	his protected activity in protesting the
assignment.
45

Even assuming that Maruca's comments and actions described
herein were discriminatory, such motivation could not be
automatically imputed to the school board who imposed the
suspension. 	Konocti Unified School District 	(6/29/82) 	PERB
Decision No. 	217. 	The Trustees determined that the assignment
was proper based upon an arbitrator's decision. 	A hearing was
held regarding the propriety of 	the discipline and the Board
voted to sustain the 	suspension.
The 	charge related to imposition of 	disciplinary action
taken against Boe 	is dismissed.
In summary, the record as a whole indicates a conflict
between a principal who believed a district directive should be
carried out and a teacher who believed the assignment was
unfair. 	The teacher was not an active MEA member but the
Association 	became involved 	because the 	dispute potentially
affected the negotiated contract 	and other 	unit members. 	Both
the District 	and the Association pursued legal remedies in 	good
faith, but Boe 	independently refused 	the 	directive 	prior 	to
resolution of 	the 	dispute, 	interim reprimands 	given to Boe
were 	unrelated to his lawful 	challenge 	to the District. 	After
Boe refused to perform the duties 	and after the District won
the 	grievance dispute, Boe was 	disciplined for 	conduct found to
be unprotected.
The theory that an individual employee should be able to
challenge a 	potential 	employer 	unfair 	practice 	at 	his 	peril has
46

been 	considered 	and rejected 	(see 	protected activity
discussion). 	A school employer must be allowed to direct its
workforce subject to legal review by the courts, PERB or
grievance awards. 	The EERA empowers PERB to prevent employer
irreparable 	harm by orderly procedures. 	Stable labor 	relations
will 	exist only if 	such orderly procedures 	are 	used.
REMEDY
S e c t i o n 	3 5 4 1 . 5 ( c ) 	g i v e s 	PERB 	t h e 	power 	t o :
Issue a decision and order 	directing an
offending 	party to 	cease 	and desist from the
unfair 	practice 	and 	to take 	such 	affirmative
action 	. 	. 	. 	a s 	will 	effectuate the policies
of 	this chapter .
In this case, the District violated section 3543.5(c) 	by
unilaterally implementing a procedure 	assigning 	coaching to
teachers. 	This action 	interfered with the Association's right
to represent its members in violation of 	section 3543.5(b), 	as
well as with employee rights 	in violation of section
3543.5(a). 	The District additionally violated
section 3543.5(a) 	and 	(b) 	by denying representation to
David Boe at a meeting held on June 11, 1981.
It 	is 	therefore 	appropriate 	to order 	the 	District 	to cease
and desist from such activity.
The District should be ordered to negotiate working
conditions upon request. 	The remedy for 	unilateral changes in
working conditions 	should be to "restore, as far 	as possible,
the status 	quo which would have obtained 	but for 	the wrongful
47

act." 	Santa Clara Unified School District 	(9/26/79) 	PERB
Decision No. 104f 	citing NLRB v. 	Rutter 	Rex Mfg. Co., 	Inc.
(1969) 	396 US 258, re-hearing denied, 397 US 929.
It 	has 	been 	found 	that 	the 	unlawful 	assignment 	policy
adopted 	by the District was 	implemented directly against
David Boe. 	No individual remedy lies 	for 	the 	unilateral
assignment 	of 	coaching duties 	because Boe 	did not 	comply with
the 	assignment.
It 	is 	also 	appropriate 	that 	the 	District 	post 	a notice
incorporating the terms 	of 	the order. 	Posting of 	such notice,
signed 	by an 	authorized agent 	of 	the District, will provide
employees 	with notice that 	the District 	has 	acted 	in an
unlawful manner , 	is 	being required 	to cease 	and 	desist 	from
this 	activity 	and 	will 	comply with 	this 	order. 	It 	effectuates
the purposes 	of 	the EERA, 	that 	employees 	be informed of 	the
resolution of 	the 	controversy 	and 	will 	announce 	the District's
readiness 	to comply with the ordered remedy. 	PERB has
authorized the 	posting of 	notices 	in 	similar 	cases. 	Davis
Unified School District, 	et 	al 	(2/22/80), 	PERB 	Decision
No. 	116, 	Placerville Union School District 	(9/18/78) 	PERB
Decision No. 69. 	In Pandol and Sons v. ALRB & UFW (1979) 	98
Cal.App. 3d 580, 	587, the California District Court of Appeal
approved a posting requirement. 	The U.S. 	Supreme Court
approved a similar 	posting requirement in NLRB v. 	Express
Publishing Co. (1941) 312 US 426 [8 LRRM 415].
48

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to
section 3 5 4 1 . 5 ( c ) , 	it is 	hereby ORDERED that 	the Mammoth
Unified 	School District, 	its 	governing 	board 	and 	its
representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the Mammoth Education Association, 	CTA/NEA, 	as
the 	exclusive 	representative 	of 	employees 	in 	the 	certificated
unit, 	by 	taking 	unilateral 	actions 	on matters 	within 	the 	scope
of 	representation 	with 	respect 	to 	assignment 	of 	coaching 	duties
(2) 	Denying 	to 	the Mammoth Education Association,
CTA/NEA, 	rights 	to 	represent 	its 	members 	guaranteed 	by 	the
Educational Employment Relations Act 	by
(a) 	refusing 	to meet 	and 	negotiate 	about matters
within 	the 	scope 	of 	representation,
(b) 	denying 	the 	organization 	the 	right 	to
represent 	a 	unit member 	in 	a meeting 	involving 	potential
disciplinary 	action.
(3) 	Denying David 	Boe 	the 	right 	to 	be 	represented 	in
meetings 	involving 	potential 	disciplinary 	action.
(4) 	Interfering with 	employees 	because of 	their
exercise 	of 	representational 	rights 	by 	unilaterally 	changing
matters 	within 	the 	scope 	of 	representation without meeting 	and
negotiating 	with 	the 	exclusive 	representative.
49
I

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT 	RELATIONS
ACT.
(1) 	Upon request, 	immediately meet 	and 	negotiate with
the Mammoth Education Association, 	CTA/NEA, 	regarding
assignment 	of 	coaching duties.
(2) 	Within five 	(5) 	workdays 	after 	this 	decision
becomes 	final, 	prepare 	and 	post 	at 	all 	school 	sites 	and 	all
other 	work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the 	notice 	attached 	hereto 	as 	an 	appendix.
The 	notice must 	be 	signed 	by 	an 	authorized 	agent 	of 	the
District, 	indicating 	that 	the 	District 	will 	comply with 	the
terms 	of 	this 	ORDER. 	Such 	posting 	shall 	be maintained 	for 	a
period of 	thirty 	(30) 	workdays. 	Reasonable steps 	shall 	be
taken 	to 	insure 	that 	such 	notices 	are 	not 	reduced 	in 	size,
altered, defaced or 	covered 	by 	any other 	material.
(3) 	Within twenty 	(20) 	workdays 	from service 	of 	the
final 	decision 	herein, 	give 	written 	notification 	to 	the
Sacramento Regional Director 	of 	the 	Public Employment Relations
Board of 	the 	actions 	taken 	to 	comply with 	this 	ORDER. 	Continue
to 	report 	in writing 	to 	the Regional Director 	thereafter 	as
directed. 	All 	reports 	to the 	Regional Director 	shall 	be
concurrently 	served 	on 	the Charging 	Party 	herein.
C. 	ALL 	OTHER CHARGES 	ARE 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed Decision 	and Order 	shall
50

become final on March 1, 1983, 	unless a 	party files a timely
statement 	of 	exceptions. 	In accordance with the 	rules, 	the
statement 	of exceptions should identify 	by page 	citation or
exhibit number 	the 	portions 	of 	the 	record relied 	upon for 	such
exceptions. 	See California Administrative Code, 	t i t l e 	8,
part 	III, 	section 	32300. 	Such statement 	of exceptions 	and
supporting 	brief must 	be actually received 	by the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before the close of 	business 	(5:00 p.m.) 	on
March 	1, 	1983, 	or 	sent 	by telegraph or 	certified United States
mail, 	postmarked 	not later 	than 	the last 	day for 	filing 	in
order 	to be 	timely filed. 	See California Administrative Code,
t i t l e 	8, 	part 	I I I , 	section 	32135. 	Any statement of exceptions
and supporting brief must be served concurrently with i t s
filing upon each 	party to this 	proceeding. 	Proof 	of 	service
shall 	be 	filed with the 	Board 	itself. 	See California
Administrative Code, 	t i t l e 	8, 	part I I I , 	section 	32300 and 	32305.
Dated: 	February 9, 	1983
TERRY FILLIMAN
Administrative 	Law Judge
51
V