Inglewood Unified School District (PERB 0401E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INGLEWOOD 	TEACHERS 	ASSOCIATION AND
ROSEBUD 	JOYNER,
Charging 	Party,
v.
INGLEWOOD UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-1562
PERB Decision No. 	401
August 	29, 	1984
Appearances; 	Rosebud Joyner, 	in propria persona;
Howard M. 	Knee, 	Attorney for 	Inglewood Unified 	School 	District.
Before Hesse, 	Chairperson; 	Tovar and Jaeger, 	Members.
DECISION AND 	ORDER
HESSE, 	Chairperson: 	Rosebud Joyner, 	on behalf of
herself,1 excepts 	to 	the 	attached 	decision 	of 	the
administrative 	law 	judge 	dismissing her 	charge 	that 	the
Inglewood 	Unified 	School 	District 	violated 	subsections
3543.5(a), 	(b), 	and (c) of the Educational Employment Relations
Act 	(EERA).2
The 	Board has 	considered 	the 	entire 	record 	and 	the 	proposed
decision 	in 	light 	of 	the 	exceptions 	and briefs 	and hereby
1The 	Inglewood 	Teachers 	Association 	did 	not 	file
exceptions.
2The 	EERA is 	codified 	at 	Government 	Code 	sections 	3540
et 	seq.
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_____________ )

affirms 	the rulings, 	findings, 	and conclusions of the
administrative 	law 	judge 	and 	adopts his 	recommended 	Order.
Accordingly, 	the unfair practice charge, 	Case No. 	LA-CE-1562,
is hereby DISMISSED 	in 	its 	entirety.
Members 	Jaeger 	and 	Tovar 	joined 	in 	this decision.
2
2

STATE 	OF CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
INGLEWOOD 	TEACHERS 	ASSOCIATION 	and
ROSEBUD 	JOYNER,
Charging 	Party,
v.
INGLEWOOD UNIFIED SCHOOL 	DISTRICT,
Respondent.
)
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) 	Unfair 	Practice
Case No. 	LA-CE-1562
PROPOSED 	DECISION
(6/9/83)
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Appearances; 	Michael R. 	White, Esq. 	for 	Inglewood Teachers
Association 	and 	Rosebud 	Joyner; 	and 	Howard 	M. 	Knee, 	Esq. 	for
Inglewood 	Unified 	School 	District.
Before Stephen H. 	Naiman, 	Administrative Law Judge.
STATEMENT 	OF 	THE 	CASE
On 	April 8, 	1982, 	Rosebud 	Joyner, 	as 	an 	individual, 	filed
an 	unfair 	practice 	charge 	against 	Inglewood 	Unified 	School
District 	(hereafter 	District 	or 	Employer) 	alleging 	violations
of 	sections 	3543.5 (a), 	(b) 	and 	(c) 	of 	the 	Educational
Employment 	Relations 	Act 	(hereafter 	EERA).l 	The 	charge 	was
amended 	three 	times, 	and 	added 	as 	a 	charging 	party 	Inglewood
Teachers 	Association 	(hereafter 	Association 	or 	Union). 	The
last 	amendment 	on 	June 	11, 	1982, 	superseded 	all 	previous
charges.
1A11 	references 	to 	the 	Educational 	Employment 	Relations
Act 	hereafter 	cited 	are 	found 	at 	Government 	Code 	section 	3540
et 	seq.

The 	charge, 	as 	amended, 	specifically 	alleges 	violation 	of
Government 	Code 	section 	3543.5(a), 	and 	3543.5 (c). 	The 	charge
further 	recites 	a 	violation 	of 	Government 	Code 	section
3543.l(a).2 Specifically, 	the 	charge 	alleges 	that 	the
District 	violated 	EERA 	by 	dismissing 	Rosebud 	Joyner 	because 	of
her 	exercise 	of 	protected 	rights. 	The 	charge 	further 	alleges
that 	the 	District 	violated 	EERA 	by 	denying 	Joyner 	her
contractual 	right 	to 	take 	up 	to 	110 	days 	of 	sick 	leave; 	by
denying 	Joyner 	compensation 	of 	differential 	pay 	for 	certain
days 	of 	sick 	leave; 	by 	requiring 	doctors' 	excuses 	for 	all
future 	absences 	rather 	than 	a 	doctor's 	justification 	only 	for
the 	absences 	which 	the 	District 	questioned 	and 	by 	refusing 	to
process 	a 	grievance 	filed 	on 	behalf 	of Joyner.
A 	complaint 	issued 	on 	August 	5, 	1982. 	On 	August 	19, 	1982,
the 	District 	filed 	its 	Answer 	to 	the 	unfair 	practice 	charge.
The 	District's 	Answer 	denies 	the 	allegations 	in 	the 	charge, 	and
affirmatively 	alleges 	that 	the 	charge 	was 	not 	timely 	and 	that
the Association waived 	any 	rights 	to meet 	and 	negotiate.
2Section 	3543.1 (a) 	recites 	the 	rights 	of 	employee
organizations 	under EERA. 	Section 	3543.5(b) 	makes 	it 	an 	unfair
practice 	to 	"[d]eny 	to 	employee 	organizations 	rights 	guaranteed
to 	them 	by 	[EERA]." 	It 	is 	concluded 	that 	charging 	party's
failure 	to 	specify 	a 	violation 	of 	section 	3543.5(b) 	in
paragraph 	6 	b 	of 	its 	charge 	was 	either 	an 	oversight 	or 	a
clerical 	error. 	The 	allegations 	in 	the 	charge 	are 	consistent
with 	those 	required 	for 	a 	violation 	of 	section 	3543.5(b).
Thus, 	the 	failure 	to 	specify 	the 	section 	number 	is 	not 	fatal
and 	it 	is 	concluded 	that 	the 	amended 	charge 	and 	the 	complaint
which 	incorporates 	it 	include 	the 	necessary 	allegations 	to
support a violation of 	section 3543.5(b).
N	
2

An 	informal 	conference 	was 	held 	on 	September 	2, 	1982; 	and
the 	matter 	was 	not 	resolved. 	On October 	13, 	1982, 	the 	District
filed 	a 	Motion 	to 	Dismiss 	the 	Complaint 	again 	alleging, 	inter
alia, 	that 	the 	charge 	was 	untimely 	and 	that 	the Association 	had
waived 	any 	right 	to 	bargain. 	The 	Association 	was 	given 	an
opportunity 	to 	respond 	to 	the 	Motion 	and 	on 	December 	3, 	1982,
the 	Administrative 	Law 	Judge, 	who 	conducted 	the 	informal
conference, 	denied 	the Motion to Dismiss 	in 	its 	entirety.
The 	formal 	hearing 	in 	this 	matter 	was 	held 	on 	January 	12
and 	13, 	1983. 	The 	final 	brief 	in 	this 	matter 	was 	received 	on
May 16, 	1983; 	and 	the matter 	was 	deemed 	submitted.
FINDINGS 	OF 	FACT
The 	Inglewood 	Teachers 	Association 	and 	the 	Inglewood
Unified 	School 	District 	are 	an 	employee 	organization 	and 	a
public 	school 	employer 	within 	the 	meaning 	of 	EERA 	sections
3540.l(d) 	and 	3540.l(k), 	respectively.3 The 	Association 	and
the 	District 	have 	been 	parties 	to 	at 	least 	two 	successive
agreements 	covering 	the 	years 	1978-1980 	and 	1980-1983.
Rosebud Joyner 	is Employed 	by 	the District
Rosebud 	Joyner 	was 	employed 	by 	the 	District 	as 	a
certificated 	teacher 	in 	September 	1966 	and 	remained 	an 	employee
of 	the 	District 	until 	her 	termination 	in November 	of 	1981. 	On
3 By 	stipulation of 	the 	parties.
W	3

or 	about 	March 6, 	1975, 	Joyner 	injured 	her 	back 	while 	at 	work.
Thereafter, 	she 	experienced 	continuous 	physical 	problems
relating 	to 	this 	injury. 	In 	approximately 	1977, 	Joyner 	was
found 	to 	be 	disabled 	and 	received 	a 	20 	percent 	disability
award. 	In 	addition, 	as 	part 	of 	the 	disability 	proceedings, 	it
appears 	that 	Joyner's 	physicians 	were 	in 	communication 	with 	the
District 	administration, 	advising 	them 	of 	Joyner's 	medical
condition. 	During 	the 	years 	1977-78, 	Joyner 	missed 	27 	days 	out
of 	179 	scheduled 	workdays. 	During 	the 	year 	1978-79, 	Joyner 	was
absent 	15 	days 	out 	of 	180 	workdays. 	During 	the 	school 	year
1979-80, 	Joyner 	was 	absent 	87 	days 	out 	of 	approximately 	179
workdays. 	During 	the 	school 	year 	1980-81, 	Joyner 	was 	absent
approximately 94 	days 	out of 	175 	workdays.
Rosebud 	Joyner's 	Alleged 	Protected 	Activity
In 	approximately 	1968, 	Joyner 	became 	a 	charter 	member 	and
first 	officer 	of 	the 	Inglewood 	Federation 	of 	Teachers 	(IFT).
She 	remained 	a 	member 	of 	that 	organization 	until 	mid-1970.
Apart 	from 	her 	early 	membership 	in 	and 	office 	with 	the 	IFT,
Joyner"s 	activities 	with 	that 	organization 	appear 	to 	be
unremarkable. 	In 	addition 	to 	membership 	in 	IFT, 	Joyner
testified 	that 	over 	the 	years, 	she 	variously 	assisted 	employees
in 	filing 	of 	"documents" 	with 	the 	District. 	It 	is 	unclear 	from
her 	testimony 	what 	kind 	of 	documents 	were 	filed, 	but 	it 	appears
she 	was 	not 	acting 	in 	any 	official 	union 	capacity 	and 	that 	her
name did 	not 	appear 	on 	any of 	the 	documents.
A4

During 	the 	academic 	year 	1980-81, 	Joyner 	was 	assigned 	to
Monroe 	Junior 	High 	School. 	The 	principal 	at 	that 	high 	school
was 	Peter 	Butler. 	In 	late 	fall 	1980, 	it 	became 	known 	that
administration 	intended 	to 	transfer 	Butler 	to 	another 	school 	in
the 	middle 	of 	the 	year. 	Joyner 	and 	a 	number 	of 	other 	teachers
personally 	opposed 	Butler's 	transfer. 	They 	prepared 	and
distributed 	flyers 	to 	staff 	and 	the 	public 	and 	conducted
meetings, 	some 	of 	which 	were 	held 	in 	Joyner's 	classroom.
Joyner 	testified 	that 	she 	was 	part 	of 	a 	group 	or 	"committee 	of
[10 	to 	20] 	teachers," 	all 	of 	whom 	had 	equal 	visibility 	and
responsibility 	for 	the 	protest 	of 	the 	mid-year 	change 	in
principal.
In 	addition, 	earlier 	in 	the 	fall 	of 	1980, 	the 	District
transferred 	approximately 	6 	to 	8 	teachers 	from 	the 	school 	in
which 	Joyner 	worked. 	Joyner 	and 	other 	teachers 	became 	angry
and 	upset 	and 	discussed 	this 	change 	during 	their 	lunch 	hour 	in
the 	school 	lunchroom. 	Joyner 	suggested 	they 	file 	a 	"class
action" 	against 	the 	school 	district 	in 	order 	to 	keep 	the
positions 	at 	Monroe 	Junior 	High 	School. 	It 	appears 	that 	her
comments 	may 	have 	been 	overheard 	by 	Assistant 	Principal
Lance Vlach, 	who 	was 	about 	3 	or 	4 	feet 	away 	from 	Joyner 	when
she 	made 	the 	statement. 	The 	record 	is 	devoid 	of 	any 	evidence
that 	the 	assistant 	principal 	or 	other 	representative 	of 	the
District 	made 	any 	statements 	in 	response 	to 	Joyner's
generalized 	suggestion.
un	
5

When 	Butler 	was 	transferred, 	he 	was 	replaced 	by
Dr. 	Earl Rector. 	Joyner 	testified 	that 	Rector 	was 	sent 	to
Monroe 	Junior 	High 	School 	as 	a 	"hatchet 	man" 	and 	was 	out 	to
"get 	her." 	When 	asked 	to 	be 	more 	specific 	about 	the 	source 	of
these 	statements, 	she 	could 	only 	testify 	that 	it 	was 	"common
knowledge 	in 	the 	community." 	Joyner 	testified 	that 	when 	Rector
arrived 	he 	"zeroed 	in" 	on 	her. 	When 	asked 	to 	clarify 	this
statement, 	Joyner 	testified 	that 	on 	his 	first 	day 	at 	school,
Rector 	spoke 	to 	her 	and 	said 	"I 	am 	glad 	to 	meet 	you,
Mrs. 	Joyner, 	or 	words 	to 	that 	effect." 	Joyner 	could 	not
testify as 	to 	any other 	specific 	statement 	by Rector.
Joyner 	testified 	that 	when 	Rector 	arrived 	at 	Monroe 	Junior
High School, 	he 	began 	to hold 	numerous 	faculty meetings. 	She
testified 	that 	on 	the 	days 	she 	was 	present 	at 	work, 	she
sometimes 	intentionally 	did 	not 	attend 	the 	faculty 	meetings
because 	she 	felt 	that 	her 	time 	was 	better 	spent 	teaching 	the
students. 	She 	also 	admitted 	she 	was 	late 	for 	the 	meetings,
sometimes 	intentionally, 	sometimes 	because 	of 	illness. 	Joyner
also 	admits 	discussing 	with 	her 	colleagues 	the 	idea 	of
protesting 	meetings 	by 	going 	in 	late 	and 	sometimes, 	this 	was
put 	into 	practice. 	There 	is 	no 	evidence 	that 	the 	District
administration 	knew of 	these 	discussions.
During 	this 	same 	period 	Joyner 	complained 	about 	dogs
underneath 	her 	portable 	building 	classroom. 	She 	was 	concerned
6

about 	the 	effect 	of 	fleas 	and 	other 	health 	threats 	to 	her
students. 	She 	also 	suggested 	that 	the 	District 	should 	have 	the
dogs 	removed. 	There 	is 	no 	evidence 	how 	or 	if 	the 	District
responded.
Early 	in 	the 	second 	semester, 	Rector 	evaluated 	Joyner 	and
asked 	for 	her 	teaching 	objectives. 	Joyner 	testified 	that
Rector 	had 	an 	assistant 	principal 	prepare 	the 	evaluation.
Rector 	then 	revised 	the 	evaluation 	to 	show 	areas 	where
improvement 	was 	needed. 	Specifically 	noted 	was 	Joyner's 	poor
attendance 	record 	at 	school 	and 	at 	faculty 	meetings, 	her
alleged 	inability 	to 	relate 	to 	other 	teachers, 	and 	her 	alleged
failure 	to 	change 	her 	bulletin 	boards. 	Joyner 	does 	not 	dispute
the 	evaluation 	comments, 	but 	testified 	she 	had 	never 	previously
received 	such 	a 	negative 	evaluation. 	Joyner 	further 	testified
that 	she 	had 	turned 	in 	her 	objectives, 	but 	they 	were
misplaced. 	When 	she 	turned 	in 	a 	second 	set 	of 	objectives 	to
Rector, 	she 	tried 	to 	write 	the 	words 	"duplicate" 	on 	the
document 	and 	he 	would 	not 	let 	her 	do 	so.
Administration's 	Response 	to Joyner's Absences
At 	the 	end 	of 	January 	1981, 	the 	District 	hired 	Rose 	Blum
Bard 	as 	the 	director 	of 	personnel. 	Bard 	worked 	half-time 	in
the 	month 	of 	February 	and 	began 	her 	full-time 	employment 	in
March 	of 	1981. 	Sometime 	prior 	to 	March 	1981 	Rector 	discussed
with 	Bard 	his 	concerns 	about 	Joyner. 	During 	the 	week 	of
V7

March 	2, 	1981, 	Joyner 	was 	absent 	four 	out 	of 	five 	days. 	On
Wednesday, 	March 	4, 	Bard 	called 	Joyner 	at 	home 	and 	requested 	a
meeting 	to 	discuss 	her 	absences. 	Joyner 	responded 	that 	she 	was
ill 	and 	could 	not 	come 	to 	any 	meetings, 	but 	would 	speak 	with
Bard 	when 	she 	returned 	to 	her 	teaching 	duties. 	Bard 	called
Joyner 	again 	on 	March 5, 	1981, 	and 	asked 	for 	a meeting. 	Joyner
said 	she 	could 	not go 	anywhere 	except 	to 	the 	doctor.
Joyner 	met 	with 	her 	classes 	on 	Friday, 	March 6, 	1981. 	She
did 	not 	attempt 	to 	see 	Bard 	before 	beginning 	teaching 	on 	that
day. 	During 	the 	morning 	while 	Joyner 	was 	giving 	a 	spelling
examination, 	Dr. 	Rector 	came 	into 	her 	classroom 	with 	another
employee 	and 	asked 	Joyner 	to 	go 	to 	Bard's 	office. 	He 	indicated
to 	Joyner 	that 	the 	other 	employee 	would 	take 	over 	her 	class
while 	she 	went 	to 	the 	meeting 	with 	Bard. 	Joyner 	asked 	if 	she
could 	have 	a 	representative 	with 	her 	and 	Rector 	told 	her 	that
she 	could 	call 	a 	representative. 	Rector 	offered 	to 	drive
Joyner 	to 	the meeting; 	however, 	she declined.
Joyner 	went 	alone 	to 	Bard's 	office 	and 	when 	she 	arrived,
she 	found 	Rector, 	Bard, 	and 	a 	secretary 	waiting 	for 	her. 	The
discussions 	at 	the 	meeting 	were 	summarized 	by 	Bard 	in 	a 	letter
to Joyner. 	In 	relevant part 	the 	letter 	stated:
Thank 	you 	for 	attending 	the 	March 	6th
meeting 	held 	among 	Dr. 	Earl 	Rector, 	you 	and
me. 	This 	letter 	will 	serve 	to 	summarize
that meeting.
The 	reason 	I 	had 	asked 	you 	to 	come 	in 	was
that 	I 	was 	concerned 	about 	your 	frequent
absences 	and 	the 	effect 	of 	these 	absences 	on
the 	continuity 	of 	program 	for 	the 	students
s

at Monroe. 	. . . 	I 	indicated 	to 	you 	that 	it
was 	my 	responsibility 	to 	help 	resolve
employee 	problems 	of 	a 	continuing 	nature.
Your 	absences 	for 	illnesses 	have 	been
frequent 	over 	the 	last 	few 	years. 	I 	asked
you 	if 	you 	were 	familiar 	with 	the 	Disability
Allowance 	that 	is 	provided 	through 	the 	State
Teachers 	Retirement 	System. 	I 	suggested 	to
you 	that 	you 	work 	with 	your 	doctor 	in
obtaining 	a 	Disability 	Allowance.
Additionally, 	I 	suggested 	to 	you 	that 	you
might 	consider 	an 	unpaid 	leave 	of 	absence
and 	take 	some 	time 	to 	improve 	your 	health.
You 	indicated 	that 	you 	were 	not 	aware 	of 	the
benefit 	of 	Disability 	Allowance, 	and 	that
you 	need 	to 	talk 	to 	your 	attorney. 	I 	stated
I 	would 	be 	happy 	to 	help 	you 	in 	any 	way 	I
could. 	I 	informed 	you 	that 	frequent
absences 	are 	disruptive 	to 	the 	program, 	and
that 	the 	Contract 	authorizes 	me 	to 	request
verification 	of 	absences. 	I 	stated 	to 	you
that 	I 	would 	be 	requiring 	a 	verification 	of
any 	absences 	that 	you 	took. 	Additionally,
please 	be 	aware 	that 	continuing 	absences 	may
indicate 	unfitness 	for 	service 	and 	may 	be
cause 	for 	termination. 	We 	cannot 	continue
to 	accept 	these 	kinds of 	absences.
• 	• 	• 	•
You 	indicated 	a 	need 	to 	call 	your 	attorney.
You 	have 	the 	right 	to 	have 	a 	representative
assist 	you 	in 	this 	matter. 	I 	will 	be 	happy
to 	meet 	with 	you 	and 	your 	representative 	at
any 	time.
I 	asked 	you 	if 	you 	had 	anything 	else 	to
add. 	You 	said 	"I 	have 	nothing 	to say."
Finally, 	the 	letter 	requests 	that 	if 	Joyner 	disagreed 	with 	the
summary 	as 	recited 	in 	the 	letter 	that 	she 	should 	advise 	Bard 	by
March 20, 	1981.4
4The 	respondent 	and 	charging 	party 	presented 	little
evidence 	of 	what 	occurred 	at 	the 	meeting 	on 	March 	6, 	1981.
Respondent, 	by 	examination 	of 	Rose 	Bard, 	asked 	in 	a 	summary
fashion 	whether 	the 	letter 	accurately 	reflected 	the 	events 	of
9

Joyner 	testified 	that 	she 	told 	Bard 	her 	absences 	were 	due
to 	an 	industrial 	injury, 	and 	agrees 	that 	her 	responses 	at 	the
meeting 	were 	otherwise 	minimal 	save 	a 	request 	for 	an 	attorney
and 	a 	request 	to 	end 	the meeting.
On 	April 	2, 	1981, 	Bard 	wrote 	Joyner 	another 	letter. 	The
letter 	references 	a 	conversation 	between 	Joyner 	and 	Bard 	"on
March 	10, 	1981."5 	Bard 	further 	wrote:
. . . 	I 	am 	informing 	you 	that 	. 	. 	. 	you
have 	been 	absent 	on 	March 	16, 	17, 	18, 	25,
27, 	30, 	31, 	and 	April 1, 	1981. 	As 	you 	will
recall 	in 	my 	letter 	to 	you 	on
March 10, 	1981, 	I 	stated 	that 	I 	would 	be
requiring 	a 	verification 	of 	any 	absences
that 	you 	took. 	This 	is 	to 	request 	that 	you
verify 	the 	reason 	for 	the 	absences 	for 	the
above 	dates. 	Please 	submit 	this 	information
to 	me 	as 	soon 	as 	possible. 	Additionally, 	on
March 	10th 	I 	informed 	you 	that 	continuing
absences 	may 	indicate 	unfitness 	for 	service
and 	may 	be 	cause 	for 	termination. 	Please 	be
aware 	that 	we 	are 	concerned 	about 	these
continuing 	absences 	and 	the 	affect 	that
these 	absences 	have 	on 	students.
the 	meeting 	and 	Bard 	testified, 	"Yes, 	it 	reflects 	the
meeting." 	Joyner, 	when 	asked 	about 	the 	letter, 	merely 	said
that 	it 	did 	not 	reflect 	all 	that 	was 	said. 	The 	quoted 	portion
of 	the 	letter 	merely 	recites 	the 	words 	that 	Bard 	addressed 	to
Joyner. 	Bard 	was 	present 	to 	testify 	at 	the 	hearing 	and 	did
verify 	that 	the 	letter 	reflected 	what 	Joyner 	was 	told 	and
charging 	party 	had 	ample 	opportunity 	to 	cross-examine 	Bard 	and
to 	examine 	Joyner 	concerning 	the 	substance 	of 	the 	meeting. 	The
letter 	was 	offered, 	and 	received 	in 	evidence 	without
objection. 	It 	is 	concluded 	that 	the 	summary 	of 	the 	meeting
found 	in 	the 	letter 	of 	March 6, 	1981, 	accurately 	reflects 	the
events 	which 	occurred 	at 	that 	meeting. 	Thus, 	the 	letter 	is
evidence 	of 	what Joyner 	was 	told 	at 	that meeting.
5The 	record 	does 	not 	support 	this 	reference 	and 	rather,
shows 	that 	the 	only 	conversation 	between 	the 	two 	individuals
occurred 	on 	March 	6, 	1981. 	This 	discrepancy 	in 	the 	letter,
while 	of 	some 	concern, 	is 	not 	fatal.
10

Joyner 	does 	not 	dispute 	that 	she 	was 	absent 	on
March 	16, 	1981, 	and 	several 	days 	thereafter. 	She 	testified
that 	when 	she 	was 	going 	to 	be 	absent, 	it 	was 	her 	practice 	to
call 	the 	clerical 	employee 	in 	charge 	of 	obtaining 	substitutes
and 	notify 	that 	person 	that 	she 	was 	going 	to 	be 	absent. 	She
further 	testified 	that 	it 	was 	her 	practice 	that, 	if 	she 	was
absent 	additional days, 	she 	would 	not 	call until 	she 	was 	ready
to 	return 	to 	work. 	On 	March 	16, 	Joyner 	called 	and 	spoke 	with
the 	substitute 	clerk, 	Pam 	Perillo. 	When 	she 	told 	Perillo 	that
she 	was 	not 	going 	to 	be 	at 	work 	that 	day, 	Joyner 	was 	told 	by
the 	clerk 	that 	she 	would 	have 	to 	bring 	in 	a 	note. 	Joyner
states 	that 	she 	told 	the 	clerk 	to 	record 	"that 	I 	am 	sick
today." 	Joyner 	admits 	that 	she 	never 	brought 	a 	note, 	and 	she
further 	testified 	that 	her 	reasons 	for 	not 	bringing 	the 	note
were 	that 	the 	District 	knew 	of 	her 	disability 	and 	therefore
knew of 	her 	reasons 	for 	being 	absent.
On May 4, 	1981, 	Bard 	again 	wrote 	to Joyner. 	Bard 	testified
that 	she 	did 	not 	know 	whether 	Joyner 	had 	received 	her 	previous
letter 	at 	the 	time 	she 	wrote 	her 	letter 	on 	May 	4.6 	The 	May 	4
letter 	stated 	as 	follows:
On 	April 2, 	1981, 	through 	Certified 	mail, 	I
sent 	you 	a 	request 	for 	verification 	of
absences 	that 	you 	have 	taken 	through
April 	1, 	1981. 	To 	date 	I 	have 	not 	received
a 	response 	from 	you, 	nor 	the 	verification 	of
reasons 	for 	absences 	for 	those dates.
6The 	record 	reflects 	that 	Joyner 	signed 	a 	return 	receipt
for 	the April 	2 	letter 	on 	or 	about 	May 2, 	1981. 	Joyner 	admits
receiving 	the April 	2 	letter 	on or 	about May 	2, 	1981.
11

Additionally, 	since 	April 	1st 	you 	have 	been
absent 	on 	the 	following 	days. 	April 9, 	20,
21, 	22, 	23, 	24, 	27, 	30, 	and 	May 4, 1981.
Again, 	I 	am 	requesting 	that 	you 	submit 	this
information 	to 	me 	as 	soon 	as 	possible,
however, 	no 	later 	than 	May 8, 	1981. 	Please
be 	aware 	that 	continuing 	absences 	may
indicate 	unfitness 	for 	service 	and 	may 	be
cause 	for 	termination. 	Please 	be 	aware 	that
we 	are 	concerned 	about 	these 	continuing
absences 	and 	the 	affect 	that 	these 	absences
have 	on 	the 	welfare 	of 	the 	schools 	and 	the
students 	thereof.
The 	respondent 	could 	not 	establish 	whether 	Joyner 	ever
received 	this 	last 	letter. 	There 	is 	no 	return 	receipt 	showing
a 	signature 	for 	it. 	Moveover, 	Joyner 	testified 	that 	she 	did
not 	receive 	this 	letter 	and 	Bard 	could 	not 	testify 	that 	she 	had
any 	evidence 	to 	the 	contrary.
Bard 	instructed 	District 	personnel 	to 	treat 	any 	of 	Joyner's
unverified 	absences 	as 	personal 	necessity 	leave 	rather 	than
sick 	leave. 	Personal 	necessity 	leave 	is 	leave 	without
compensation. 	Prior 	to 	this 	new 	set 	of 	instructions, 	all 	of
Joyner's 	absences 	had 	been 	treated 	as 	sick 	leave 	for 	which 	she
would 	receive 	compensation. 	Joyner's 	checks 	for 	the 	months 	of
April 	and 	May 	reflected 	a 	reduction 	in 	compensation 	due 	to 	the
fact 	that 	the 	District 	charged 	her 	absences 	to 	personal
necessity 	leave.
On May 5, 	1981, Bard wrote 	the 	following 	letter 	to Joyner:
This 	is 	to 	inform 	you 	that 	at 	the 	regularly
scheduled 	Board 	of 	Education 	meeting 	on
May 11, 	1981, 	it will be 	recommended 	that
the 	Board 	consider 	action 	terminating 	your
employment 	with 	the 	Inglewood 	Unified 	School
District.
12

Please 	feel 	free 	to 	attend 	the 	Board 	meeting
Monday 	night.
Joyner 	attended 	a 	Board 	meeting 	on 	May 11, 	1981; 	thus, 	it
would 	appear 	that 	she 	received 	the 	May 	5 	letter 	prior 	to
May 11, 	1981, 	or 	otherwise 	knew 	of 	the 	meeting. 	In 	any 	case,
Joyner 	heard 	an 	accusation 	against 	her 	which, 	if 	found 	to 	be
true, 	might 	result 	in 	her 	termination. 	The 	Board 	recommended
that 	the 	District 	proceed 	with 	the 	termination 	action 	against
Joyner.
Joyner 	Discusses 	Her 	Problems 	with 	the 	Union
Sometime 	early 	in 	1981, 	Joyner 	spoke 	with 	James 	Gerald 	who
was 	then 	the 	Union 	President, 	Chief 	Executive 	Officer, 	General
Manager, 	and 	Grievance 	Chair. 	She 	advised 	him 	of 	her 	concerns
about 	her 	future 	employment 	and 	specifically 	mentioned 	to 	him
that 	the 	District 	had 	questioned 	the 	number 	of 	her 	absences.
It 	appears 	that 	Joyner 	had 	numerous 	conversations 	with 	Gerald
regarding 	these 	concerns 	and 	anxieties.
Gerald 	undertook 	to 	speak 	to 	Assistant 	Superintendent
Dr. 	Bernard 	Garen.7 	Gerald 	told 	Garen 	of 	Joyner's 	anxieties
over 	the 	District's 	response 	to 	her 	absences. 	Garen 	responded
that 	the 	District 	was 	concerned 	about 	the 	number 	of 	days Joyner
had 	been 	absent 	and 	the 	cost 	of 	these 	absences 	to 	the
7Garen 	variously 	testified 	he 	was 	an 	"Assistant
Superintendent" 	and 	"Deputy Superintendent."
13

District. 	Gerald 	suggested 	that 	perhaps 	the 	District 	could
find 	a 	way 	to 	mitigate 	the 	cost 	to 	the 	District 	by 	utilizing
the 	various 	insurance 	programs 	available 	to 	employees. 	There
was 	no 	discussion 	between 	Garen 	and 	Gerald 	of 	possible
termination. 	In 	approximately 	March 	1981, 	Joyner 	told 	Gerald
of 	her 	meeting 	with 	Rose 	Bard. 	Joyner 	further 	told 	Gerald 	that
Bard 	had 	insisted 	that 	all 	future 	absences 	be 	verified 	or 	they
would 	be 	treated 	as 	personal 	business. 	Gerald 	acknowledged
these 	conversations 	with 	Joyner 	and 	stated 	that 	he 	told 	her
that 	"Bard 	had 	no 	right 	to 	do 	this, 	that 	it 	was 	not 	a
reasonable 	interpretation 	and 	that 	[she 	should] 	resist 	and
. 	. 	. 	file a grievance 	if Ms. Bard persisted."
Gerald 	learned 	of 	the 	District's 	intention 	to 	terminate
Joyner 	a 	day 	or 	so 	after 	the 	Board 	meeting 	on 	May 	11, 	1981.
Gerald 	was 	not 	present 	at 	the 	Board 	meeting, 	but 	was 	informed
of 	the 	action 	by 	Joyner 	and 	representatives 	of 	the 	Union.
Gerald 	testified 	that 	he 	was 	not 	aware 	of 	the 	specific
accusations 	against 	Joyner. 	Gerald 	further 	testified 	that 	he
did 	not 	make 	any 	effort 	to 	discover 	the 	nature 	of 	the
accusations 	against 	Joyner 	absent 	a 	few 	inquiries 	to 	certain
District 	personnel 	who 	rebuffed 	him 	because 	of 	the
confidentiality 	of 	the 	proceedings. 	Gerald 	testified 	that 	the
Union 	was 	not 	required 	to 	represent 	non-members 	in 	dismissal
proceedings; 	that 	dismissal 	proceedings 	raised 	issues 	outside
14

the 	terms 	of 	the 	agreement 	between 	the 	parties; 	and 	that 	he
informed 	Joyner 	that 	she 	would 	have 	to 	obtain 	her 	own
representative 	in 	the 	dismissal 	proceedings. 	Further, 	Gerald
testified 	that 	he 	did 	not 	ask 	Joyner 	for 	a 	statement 	of 	the
charges 	against 	her 	because 	"I 	didn't 	want 	to 	get 	stuck 	with
her 	legal 	fees." 	Gerald 	went 	on 	to 	state 	that, 	upon 	advice
from 	Union 	field 	representatives 	and 	his 	own 	judgment, 	he 	did
not 	want 	to 	learn 	too 	much 	about 	the 	specifics 	of 	the
termination 	proceedings 	for 	fear 	that 	it 	might 	invoke 	a 	duty 	of
fair 	representation 	action 	against 	the 	Association 	and 	thus 	he
was 	"rather 	discreet 	about 	questioning 	Mrs. 	Joyner 	about 	the
case 	. . . " 	Thus, 	once 	the 	termination 	proceedings 	began
against 	Joyner, 	the 	Union 	did 	not 	attempt 	to 	gather 	further
information 	regarding 	the 	District's 	termination 	proceedings 	or
the 	events 	which 	led 	up 	to 	it.
The 	Termination Hearings
The 	hearing 	before 	the 	Commission 	of 	Professional
Competence 	was 	held 	on 	July 25, 	28, 	29, 	30, 	October 	13 	and
14, 	1981. 	Joyner 	was 	represented 	by 	an 	attorney 	throughout 	the
proceedings. 	The 	panel 	members 	were 	one 	representative
selected 	by 	Joyner 	and 	her 	counsel, 	one 	representative 	selected
by 	the 	District, 	and 	one 	neutral 	member 	selected 	by 	both
parties.
15

In November 	1981, 	the Commission 	issued 	its 	decision
dismissing 	Joyner, 	having 	found 	her 	unfit 	for 	service.8 The
Commission 	unanimously 	agreed 	that 	Joyner 	should 	be 	dismissed
for 	the 	following 	reasons:9
X
It 	was 	established 	that 	respondent
[sic] 	during 	the 	1979-1980 	school 	year,
respondent 	Joyner 	was 	absent 	from 	service 	97
days, 	which 	comprised 	55 	percent 	of 	the
number 	of 	days 	classes 	were 	in 	session. 	On
eight 	additional 	days, 	other 	teachers 	were
required 	to 	cover 	respondent's 	first 	period
class 	because 	of 	her 	late 	arrival. 	Such
conduct 	constitutes 	evident 	unfitness 	for
service.
XI
A. 	It 	was 	established 	that 	during 	the
1980-81 	school 	year, 	respondent 	Joyner 	was
absent 	from 	service 	94 	days, 	which 	comprised
54 	percent 	of 	the 	number 	of 	days 	classes
were 	in 	session. 	On 	eleven 	additional 	days,
other 	teachers 	were 	required 	to 	cover
respondent's 	first 	period 	class 	because 	of
her 	late 	arrival. 	Respondent's 	excessive
absences 	made 	it 	impossible 	for 	her 	students
to 	be 	involved 	in 	an 	instructional 	program
with 	continuity 	or 	structure, 	and 	another
teacher 	was 	required 	to 	be 	assigned 	to 	her
classes.
B. 	Such 	conduct 	as 	is 	set 	forth 	in
Findings 	of 	Fact 	X 	and 	XI 	was 	of 	a 	magnitude
that 	rendered 	the 	performance 	of 	the
respondent 	unreliable, 	inefficient 	and
8The 	decision 	was 	amended 	to 	cure 	inconsequential,
typographical errors on December 	17, 	1981.
9There 	were 	other 	minimal 	stated 	reasons 	for 	dismissal 	on
which 	there 	was 	not 	unanimous 	agreement.
16

inadequate. 	It 	put 	an 	unfair 	burden 	on 	the
District 	including 	the 	chronic 	necessity 	for
bringing 	in 	substitute 	teachers 	to 	replace
respondent. 	Such 	conduct 	on 	the 	part 	of 	the
respondent 	constitutes 	evident 	unfitness 	for
service.
XII
A. 	It 	was 	established 	that 	on 	or 	about
March 	6, 	1981, 	respondent 	Joyner 	was
required 	by 	the 	District's 	Personnel
Director, 	Rose 	Bard 	to 	submit 	a 	physician's
verification 	of 	future 	absences 	pursuant 	to
Article 	IV(A) 	(II) 	of 	the 	Agreement 	between
the 	District 	and 	the 	Inglewood 	Teachers
Association. 	This 	section 	permits 	the
District 	to 	request 	such 	a 	verification 	if
it 	"has 	reason 	to 	believe 	that 	the 	absence
may 	not 	have 	been 	used 	for 	proper 	sick 	leave
purposes." 	From 	March 6, 	1981, 	through 	the
end 	of 	the 	1980-81 	school 	year, 	respondent
Joyner 	was 	absent 	45 	days 	[sic] 	classes 	were
in 	session. 	During 	this 	period, 	she
willfully 	failed 	to 	provide 	a 	physician's
verification 	for 	any 	of 	these 	absences 	as
required. 	According, 	[sic] 	such 	absences
are 	found 	to 	be 	unauthorized.
B. 	Such 	conduct 	as 	is 	set 	forth 	in 	Finding
of 	Fact 	XII-A 	above 	constitutes 	evident
unfitness 	for 	service 	and 	persistent
violation 	of 	and 	refusal 	to 	obey 	reasonable
regulations 	duly 	prescribed 	for 	the
government of 	the 	public 	schools.
There 	is 	no 	evidence 	in 	the 	record 	that 	Joyner, 	or 	anyone
acting 	in 	her 	behalf, 	suggested 	to 	Bard 	or 	the 	Commission
during 	the 	hearing 	that 	the 	proceedings 	against 	her 	were 	based
upon 	dissatisfaction 	with 	her 	Union 	activities; 	her 	protests 	of
the 	Butler 	transfer 	or 	the 	failure 	to 	fill 	eight 	teaching
positions; 	her 	complaints 	about 	conditions 	in 	or 	about 	her
17

classrooms, 	or 	discrimination 	because 	of 	her 	race. 	Indeed, 	all
of 	these 	arguments 	were 	raised 	for 	the 	first 	time 	at 	the
hearing 	before 	the 	Public Employment 	Relations Board.
Following 	the 	Termination 	Proceedings 	Against 	Joyner, 	the 	Union
Attempts 	to File a Grievance.
After 	learning 	of 	Joyner's 	dismissal 	by 	the 	Professional
Competence 	Committee 	and 	the 	Board 	of 	Education, 	on
approximately 	December 	16th, 	the 	Union's 	Representative 	Council
passed 	a 	resolution 	protesting 	the 	dismissal 	of 	Joyner 	or 	any
other 	teacher 	based 	upon 	exercise 	of 	rights 	guaranteed 	by 	the
agreement 	between 	the 	Association 	and 	the 	District. 	Further,
the 	resolution 	stated 	that 	the 	Association 	denied 	that 	any
future 	precedent 	would 	be 	set 	by 	the 	actions 	which 	the 	District
had 	taken 	against 	Joyner. 	The 	day 	following 	passage 	of 	the
resolution, 	the 	Association 	sent 	a 	request 	to 	the 	District
Superintendent 	Dr. 	Frances 	B. 	Worthington, 	requesting 	that 	the
Association 	be 	given 	time 	on 	the 	School 	Board 	agenda 	to
publicly 	read 	the 	resolution 	to 	the 	Board. 	Apparently, 	no
response 	was 	received 	from 	the 	District. 	Gerald 	admitted 	that
the 	School 	Board's 	rules 	preclude 	placing 	personnel 	matters 	on
the 	public 	agenda 	and 	that 	these 	matters 	are 	relegated 	to
executive 	sessions. 	However, 	Gerald 	said 	he 	disagreed 	with 	the
rule.
At 	some 	unspecified 	time 	after 	the 	Commission 	Decision,
Gerald 	approached 	Garen 	and 	acknowledged 	that 	the 	time 	lines
18

for 	filing 	a 	grievance 	had 	long 	past. 	Gerald 	asked 	Garen 	how
he 	should 	proceed 	and 	whether 	Garen 	would 	agree 	that 	filing 	the
grievance 	was 	futile 	so 	that 	the 	Association 	could 	pursue 	its
actions 	in 	another 	forum. 	Ostensibly 	Garen 	suggested 	that 	the
Association 	should 	file 	its 	grievance 	and 	have 	the 	matter 	heard
on 	the merits.
On 	January 13, 	1982, 	the 	Union 	President 	Gerald 	approached
Dr. 	Garen 	with 	a 	memorandum 	entitled 	"Initiation 	of 	Grievance
Proceedings 	in 	regard 	to 	Mrs. 	Rosebud 	Joyner's 	sick 	leave."
This 	document 	summarized 	the 	events 	of 	March 	1981 	in 	which 	Bard
requested 	that 	Joyner 	bring 	doctor's 	excuses 	for 	all 	absences
after 	March 10, 	1981. 	The 	grievance 	alleged 	that 	Joyner 	had
been 	improperly 	denied 	sick 	leave 	compensation 	when 	she 	did 	not
produce 	the 	requested 	doctor's 	excuses, 	since 	the 	District 	had
a 	right 	only 	to 	request 	excuses 	after 	an 	absence 	had 	occurred,
not 	prior 	to 	such 	absences. 	The 	grievance 	asked 	that 	Joyner 	be
"paid 	for 	all 	sick 	leave 	incorrectly 	charged 	as 	personal
business, 	or 	otherwise, 	erroneously 	accounted 	for 	in 	violation
of 	the 	contract."
When 	the 	grievance 	was 	delivered 	to 	Garen 	and
Superintendent 	Worthington 	on 	January 	13, 	1982, 	Garen 	was 	about
to 	terminate 	his 	employment 	with 	the 	District 	and 	took 	no
action 	on 	the 	grievance. 	It 	appears 	that 	no 	response 	was 	ever
received 	by 	the Association 	to 	this 	purported 	grievance.
19

On 	approximately 	April 	13, 	1982, 	the 	Association 	wrote 	to
Superintendent 	Frances 	Worthington. 	The 	Association 	stated,
with 	regard 	to 	Joyner's 	and 	two 	other 	grievances 	still 	pending
after 	Garen 	left, 	"we 	would 	appreciate 	your 	level 	II 	proposed
resolution 	within 	10 	days; 	not 	hearing 	this, 	in 	any 	matter, 	we
shall 	assume 	you 	wish 	to 	proceed 	to 	arbitration." 	The 	record
fails 	to 	reveal 	that 	the 	Union 	or 	the 	District 	did 	anything
further 	to 	advance 	the 	processing 	of 	the 	grievance.
In 	relevant 	part, 	the 	grievance 	procedure 	of 	the 	Agreement
provides as 	follows:
ARTICLE 	V - 	GRIEVANCE 	PROCEDURE
A. 	Definitions
1. 	A 	grievance 	is 	defined 	as 	an 	alleged
violation, 	misinterpretation 	or
misapplication 	of 	expressed 	written 	terms 	of
this 	Agreement 	and 	that 	by 	reason 	of 	such
alleged 	violation, 	a 	teacher's 	rights 	have
been 	adversely 	affected.
• 	• 	• 	• 	• 	• 	•
3. 	The 	grievance 	procedure 	shall 	not 	be
utilized 	to 	contest 	the 	dismissal 	of 	a
teacher 	and 	the 	application 	of 	the
requirements 	EEOC, 	Title 	VI, 	Title 	VII 	and
Title 	XI, 	unemployment 	insurance 	and 	any
other 	Federal 	or 	State 	statute 	for 	which 	a
specific 	method of 	review 	is provided 	by law.
4. 	A 	day 	is 	a 	day 	on 	which 	the 	District
office 	is 	open 	for 	business 	except 	that,
when 	a 	grievance 	is 	filed 	subsequent 	to
May 	1 	and 	prior 	to 	the 	end 	of 	the 	school
year, 	the 	time 	limits 	shall 	be 	regarded 	as
calendar 	days. 	Any 	time 	limit 	affected 	by
20

the 	Christmas 	holidays 	or 	spring 	recess
shall 	be 	extended 	by 	ten 	(10) 	and 	five 	(5)
days, respectively.
5. 	A 	grievant 	or 	an 	aggrieved 	person 	is
any 	person(s) 	in 	the 	bargaining 	unit 	as
defined 	in 	this 	Agreement. 	The 	Association
may 	be 	the 	grievant 	on 	Association 	rights,
payroll 	deductions, 	negotiation 	procedures
and 	zipper.
• 	• 	• 	• 	• 	• 	• 	•
B. 	Procedure
1. 	Informal 	level
a) 	Before 	filing 	a 	formal 	written
grievance, 	the 	grievant 	shall 	attempt 	to
resolve 	a 	grievance 	by 	an 	informal
conference 	with 	the 	grievant's 	immediate
supervisor. 	Said 	conference 	shall 	be
requested 	within 	fifteen 	(15) 	days 	of 	the
occurrence 	[sic] 	of 	the 	act 	or 	[sic]
commission 	giving 	rise 	to 	the 	grievance 	or
when 	the 	grievant 	could 	be 	reasonably
expected 	to 	know 	of 	the 	event 	which 	gives
rise 	to 	the 	grievance 	or 	teachers 	lose 	the
right 	to grieve.
b) 	The 	immediate 	supervisor 	shall 	hold 	a
conference 	with 	the 	grievant 	within 	five 	(5)
days 	of 	receipt 	of 	a 	request 	and 	attempt 	to
resolve 	the 	matter 	and 	respond 	in 	writing
upon 	request 	within 	two 	(2) 	days 	after 	the
conference.
c) 	The 	grievant 	may 	be 	represented 	by 	an
Association 	representative 	at 	all 	meetings
and 	hearings 	above 	the 	informal 	level 	of 	the
grievance 	procedure 	and 	at 	the 	informal
level 	after 	the 	grievant 	has 	had 	at 	least
one 	informal 	conference 	with 	the 	grievant's
immediate 	supervisor.
d) 	If 	the 	immediate 	supervisor 	does 	not
hold 	a 	conference 	or 	respond 	in 	writing
within 	the 	time 	limits 	stated 	above, 	then
the 	grievant 	may 	proceed 	to Level 	I 	with 	the
grievance.
21

2. 	Level I
a) 	If 	a 	grievant 	is 	not 	satisfied 	with 	the
results 	of 	the 	conference, 	the 	grievant
must, 	within 	five 	(5) 	days 	of 	the 	oral
conference 	or 	the 	receipt 	of 	a 	requested
written 	response, 	present 	the 	grievance 	in
writing 	on 	the 	approved 	form 	to 	the
immediate supervisor. 	. 	. 	.
b) 	The 	immediate 	supervisor 	shall 	hold 	a
hearing 	with 	the 	grievant 	and 	shall
communicate 	a 	decision 	in 	writing 	seven 	(7)
days 	after 	receiving 	the 	grievance.
c) 	In 	the 	event 	the 	immediate 	supervisor
fails 	to 	conduct 	a 	hearing 	and 	render 	a
decision 	within 	the 	seven 	(7) 	days, 	the
grievant 	shall 	notify 	the 	superintendent 	or
designee 	who 	shall 	convene 	a 	hearing 	within
seven 	(7) 	days 	after 	notification 	and 	direct
the 	immediate 	supervisor 	to 	render 	a
decision 	in 	writing* 	Such 	a 	directed
decision 	shall 	be 	made 	within 	three 	(3)
days. 	If 	the 	time 	limits 	specified 	above
are 	not 	followed, 	the 	grievant 	may 	appeal
the grievance 	to Level II.
3. 	Level 	II
a) 	In 	the 	event 	the 	grievant 	is 	not
satisfied 	with 	the 	decision 	at 	Level 	I, 	the
grievant 	may 	appeal 	the 	decision 	to 	the
superintendent 	or 	designee 	on 	the
appropriate 	form 	within 	seven 	(7) 	days 	of
the 	receipt of 	the Level 	I 	decision.
c) 	The 	superintendent 	or 	designee 	shall
hold 	a 	hearing 	with 	the 	parties 	and 	render 	a
decision 	in 	writing 	within 	ten 	(10) 	days 	of
receipt of an 	appeal.
4. 	Level 	III
a) 	If 	the 	grievance 	is 	not 	resolved 	at
Level 	II, 	the 	grievant 	may 	request 	that 	the
Association 	submit 	the 	grievance 	to
arbitration. 	The 	grievant 	shall 	make 	such
request 	within 	five 	(5) 	days 	after 	receiving
22
• 	• 	• 	• 	• 	•

the 	Level 	II 	decision. 	The 	Association
shall 	notify 	the 	superintendent 	or 	designee
within 	ten 	(10) 	days 	after 	receipt 	of
Level 	II 	decision 	by 	grievant 	if 	the
grievance 	has 	been 	submitted 	for 	arbitration
by 	the Association.
c) 	If 	any 	question 	arises 	at 	[sic] 	to 	the
Arbitrability of 	the 	grievance, 	such
question (s) 	will 	be 	ruled 	upon 	by 	the
arbitrator.
j) 	The 	arbitrator 	shall 	render 	the
decision 	no 	later 	than 	thirty 	(30) 	days
after 	the 	conclusion 	of 	the 	hearing. 	Such
decision 	shall 	be 	final 	and 	binding 	on 	the
parties.
5. 	Miscellaneous
b) 	Since 	it 	is 	important 	that 	grievances
be 	processed 	as 	rapidly 	as 	possible, 	the
time 	limits 	specified 	at 	each 	level 	should
be 	considered 	maximums 	and 	every 	effort
should 	be 	made 	to 	expedite 	the 	process. 	The
time 	limits, 	however, 	may 	be 	extended 	by
mutual 	agreement.
c) 	Failure 	of 	the 	grievant 	or 	Association
to 	abide 	by 	the 	time 	limit 	specified 	shall
result 	in 	the 	grievant 	or 	the 	Association
being 	deemed 	to 	have 	accepted 	the 	decision.
The 	Association 	shall 	be 	given 	an
opportunity 	to 	file 	a 	written 	response 	to
any 	proposed 	settlement 	prior 	to 	the 	final
resolution of 	the 	grievance.
23
• 	• 	• 	• 	• 	• 	•
• 	• 	• 	•
• 	• 	• 	• 	•
• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	•

g) 	The 	processing 	of 	a 	grievance 	beyond
Level 	II 	shall 	constitute 	an 	expressed
election 	on 	the 	part 	of 	the 	grievant 	that
the 	grievance 	arbitration 	procedure 	is 	the
chosen 	form 	for 	resolving 	the 	issues
contained 	in 	the 	grievance 	and 	that 	the
grievant 	will 	not 	resort 	to 	any 	other 	forum
for 	resolution or 	review of 	the 	issues.
In 	relevant 	part, 	the 	contract 	provisions 	relied 	upon 	by
the 	Association 	in 	the 	purported 	grievance 	filing 	and 	in 	the
proceedings 	in 	this matter 	are 	as 	follows:
ARTICLE 	IV - 	LEAVE 	PROVISIONS
A. 	SICK 	LEAVE
1. 	Full-time 	teachers 	shall 	be 	entitled 	to
ten 	(10) 	days 	leave 	with 	full 	pay 	each
school 	year 	for 	purposes 	of 	personal 	illness
or injury. 	. 	. 	.
4. 	Sick 	leave 	credit 	may 	be 	used 	by 	the
employee 	for 	sick 	leave 	purposes, 	without
loss 	of 	compensation. 	Upon 	exhaustion 	of
all 	accumulated 	sick 	leave 	credit, 	an
employee 	who 	continues 	to 	be 	absent 	for
purposes 	of 	this 	policy 	shall 	receive 	the
difference 	between 	their 	regular 	pay 	and 	the
amount 	actually 	paid 	a 	substitute, 	or 	if 	no
substitute 	is 	employed, 	the 	amount 	which
would 	have 	been 	paid 	a 	substitute 	if 	one 	had
been 	employed. 	The 	days 	of 	differential
pay, 	when 	combined 	with 	days 	of 	accumulated
sick 	leave 	utilization, 	shall 	not 	exceed 	one
hundred 	and 	ten 	(110).
6. 	The 	teacher 	shall 	notify 	the 	District
Office 	as 	soon 	as 	the 	need 	to 	be 	absent 	is
known, 	but, 	unless 	exceptional 	circumstances
prevent, 	no 	later 	than 	6:30 	a.m. 	on 	the 	day
of 	the 	absence 	in 	order 	to 	permit 	the
.
24
• 	• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	•

District 	to 	secure 	a 	substitute. 	However,
if 	an 	employee's 	service 	commences 	prior 	to
the 	regularly 	scheduled 	school 	day, 	the
employee 	shall 	contact 	the 	District 	Office
no 	later 	than 	one 	and 	one-half 	(1-1/2) 	hours
prior 	to 	the 	start 	of 	the 	teacher's
workday. 	The 	notification 	described 	herein
shall 	also 	include 	an 	estimate 	of 	the
expected 	duration of 	the 	absence.
8. 	If 	the 	duration 	of 	the 	absence 	is 	the
same 	as 	the 	estimate 	thereof, 	the 	teacher
shall 	not 	be 	required 	to 	notify 	the 	District
Office 	of 	intent 	to 	return 	to 	work. 	If 	the
duration 	of 	the 	absence 	is 	less 	than 	the
estimate 	thereof, 	the 	teacher 	shall 	notify
the 	school 	secretary 	by 	2:00 	p.m. 	on 	the 	day
preceding 	the 	day 	of 	return 	to 	work. 	If 	the
duration 	of 	the 	absence 	exceeds 	the 	estimate
thereof, 	the 	teacher 	shall 	notify 	the 	school
secretary 	that 	the 	teacher 	will 	not 	return
to 	work 	by 	2:00 	p.m. 	on 	the 	workday
preceding 	the 	original 	expected 	day 	of
return, 	and 	estimate 	when 	the 	teacher 	will
return.
9. 	If 	an 	employee 	is 	absent 	for 	twenty
(20) 	consecutive 	workdays 	or 	more, 	the
employee 	shall 	advise 	the 	District 	Office 	by
2:00 	p.m. 	on 	the 	day 	preceding 	the 	day 	of
intended 	return 	of 	such 	intent. 	If 	the
employee 	fails 	to 	notify 	the 	District, 	as
specified 	herein, 	and 	returns 	to 	work 	on
said 	day, 	the 	employee 	may 	be 	denied 	work 	on
said 	day.
10. 	As 	a 	condition 	for 	return 	to 	work
following 	an 	absence 	occasioned 	by 	major
surgery, 	major 	disability 	due 	to 	illness,
accident 	or 	maternity, 	a 	doctor's 	release
certifying 	employee's 	capability 	of 	resuming
all 	regular 	activity 	of 	the 	assignment 	and
the 	date 	of 	return 	shall 	be 	submitted 	to 	the
District.
25
• 	• 	• 	• 	• 	• 	• 	•

11. 	It 	shall 	be 	the 	prerogative 	of 	the
District 	to 	require 	physician's 	verification
of 	absence 	due 	to 	illness 	or 	injury 	if 	the
District 	has 	reason 	to 	believe 	that 	the
absence 	may 	not 	have 	been 	used 	for 	proper
sick 	leave purposes.
I. 	OTHER LEAVES 	WITHOUT PAY
1. 	The 	District 	may 	grant 	a 	teacher, 	upon
written 	request, 	an 	unpaid 	leave 	of 	absence
for 	up 	to one 	(1) 	school year 	. . . .
2. 	A 	teacher 	may 	apply 	for 	and 	shall 	be
granted 	an 	unpaid 	health 	leave 	of 	absence
for 	the 	remainder 	of 	the 	current 	school 	year
and 	up 	to 	one 	(1) 	additional 	school 	year.
Such 	leave 	may 	be 	extended 	for 	an 	additional
period of 	time.
3. 	If 	the 	leave 	of 	absence 	was 	granted 	for
health 	reasons, 	the 	teacher 	shall 	submit
prior 	to 	return 	to 	service 	a 	doctor's
statement 	certifying 	the 	teacher's
capability 	of 	resuming 	all 	regular 	duties 	of
the 	assignment 	from which 	leave 	was 	granted.
4. 	A 	teacher 	on 	leave 	of 	absence 	without
pay 	for 	one 	(1) 	year 	or 	more 	shall 	notify
the 	District 	Personnel 	Office 	by 	February 	15
of 	his/her 	intent 	to 	return 	to 	service 	in
the 	District 	for 	the 	following 	year.
Failure 	to 	give 	said 	timely 	notification
shall 	result 	in 	an 	automatic 	extension 	of
leave 	unless 	there 	is 	a 	vacancy 	for 	which
teacher 	is 	competent 	and 	qualified 	to 	fill
and 	teacher 	desires 	the position.
5. 	A 	teacher 	returning 	to 	service 	within
one 	(1) 	year 	shall 	be 	returned 	to 	the
position 	from 	which 	the 	leave 	was 	granted.
A 	teacher 	returning 	to 	service 	after 	more
than 	a 	year's 	leave 	shall 	be 	placed 	in 	a
position 	of 	equivalent 	status 	and 	rank
unless 	other 	arrangements 	are 	mutually
agreed 	to 	by 	the 	employee 	and 	the District.
26
• 	• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	•

K. 	RIGHTS 	OF TEACHERS 	ON 	LEAVE
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	a
3. 	A 	teacher 	returning 	from 	a 	leave 	of 	not
more 	than 	one 	(1) 	year 	shall 	be 	reinstated
to 	the 	position 	from 	which 	the 	leave 	was
granted, 	assuming 	it 	still 	exists, 	or 	one 	of
equivalent 	rank 	and 	status 	if 	the 	position
no 	longer 	exists.
4. 	A 	teacher 	returning 	from 	leave 	of 	more
than 	one 	(1) 	year 	shall 	be 	reinstated 	to 	a
position of 	the 	same 	rank 	and 	status.
Based 	upon 	the 	above 	facts, 	the 	Association 	urges 	that 	the
District 	should 	be 	found 	to 	have 	violated 	the 	Educational
Employment 	Relations Act.
ISSUES
A. 	Whether 	Joyner 	and 	the 	Association 	filed 	timely
charges 	against 	the 	District?
B. 	Whether 	the 	District 	violated 	the 	EERA 	by 	repudiating,
disavowing, 	or 	unilaterally 	changing 	the 	provisions 	of 	the
contract 	relating 	to 	sick 	leave 	and 	verification 	of 	illness?
C. 	Whether 	the 	District 	violated 	the 	EERA 	by 	repudiating
or 	unilaterally 	changing 	the 	provisions 	of 	the 	agreement
relating 	to 	the processing 	of 	grievances?
D. 	Whether 	the 	District 	violated 	the 	EERA 	by
discriminating 	against 	Rosebud 	Joyner 	because 	of 	the 	exercise
of 	protected 	rights?
27

CONCLUSIONS 	OF 	LAW
Timeliness
The 	Educational 	Employment 	Relations 	Act 	provides 	that 	PERB
shall 	not 	have 	jurisdiction 	to 	issue 	a 	complaint 	in 	respect 	of
any 	charge 	based 	upon 	an 	alleged 	unfair 	practice 	occurring 	more
than 	six 	months 	prior 	to 	the 	filing 	of 	the 	charge 	. . . "
(Cal. 	Gov. 	Code, 	section 3541.5 (a) (1)) 	PERB 	has 	held 	that 	the
statute 	of 	limitations 	must 	be 	raised 	by 	a 	respondent 	as 	an
affirmative 	defense 	or 	is 	otherwise 	waived. 	(See 	Walnut Valley
Educators Association 	(2/28/83) 	PERB 	Decision 	No. 	289 	and 	cases
cited 	therein 	at 	10-12.)
As 	found 	above, 	the 	District 	asked 	Joyner 	to 	verify 	certain
absences 	on 	and 	after 	March 	6, 	1981. 	The 	record 	further 	shows
that 	when 	Joyner 	failed 	to 	verify 	her 	absences 	with 	the
requested 	doctor's 	excuse, 	the 	District 	treated 	her 	absences 	as
personal 	necessity 	leave 	and 	denied 	any 	compensation 	for 	the
dates 	when 	she 	was 	not 	at 	work. 	Joyner 	became 	aware 	of 	the
denial 	of 	compensation 	when 	she 	received 	her 	April 	and/or 	May
paycheck(s).
Joyner 	spoke 	to 	Union 	President 	James 	Gerald 	at 	or 	about
the 	time 	the 	requests 	for 	physician 	verifications 	were 	made 	in
March 	1981. 	She 	asked 	Gerald 	whether 	she 	had 	to 	provide 	such
verifications 	and 	he 	told 	her 	that 	she 	did 	not. 	Gerald 	further
testified 	he 	viewed 	the 	District's 	requirement 	for 	verification
unreasonable 	and 	a 	violation 	of 	the 	agreement. 	He 	told 	Joyner
28

she 	should 	file 	a 	grievance 	at 	that 	time. 	Gerald 	spoke 	with
Assistant 	Superintendent 	Bernard 	Garen 	in 	early 	1981 	about 	his
concerns 	relating 	to 	the 	District's 	application 	of 	the
contractual 	provisions 	for 	doctor's 	verification 	and 	sick 	leave
compensation 	in 	the 	Joyner 	matter. 	Gerald 	admitted 	that 	Garen
told 	him 	that 	the 	District 	was 	concerned 	about 	the 	cost 	of
Joyner's 	absences 	and 	it 	was 	his 	view 	that 	Garen 	was 	concerned
about 	the 	number 	of 	absences 	as well.
Gerald 	further 	testified 	that 	when 	he 	learned 	in 	early 	May
that 	the 	District 	intended 	to 	commence 	dismissal 	proceedings
against 	Joyner, 	he 	considered 	these 	proceedings 	a 	matter
outside 	the 	provisions 	of 	the 	contract. 	Since 	Joyner 	was 	not 	a
member 	of 	the 	Union, 	it 	would 	not 	represent 	her. 	Gerald
further 	testified 	that 	he 	did 	not 	want 	to 	ask 	Joyner 	too 	many
questions 	about 	the 	nature 	of 	her 	dispute 	with 	the 	District
because 	he 	did 	not 	want 	to 	have 	too 	much 	information 	and 	risk
being 	charged, 	subsequently, 	with 	a 	breach 	of 	the 	Union's 	duty
to 	fairly 	represent 	employees.
The 	charge 	in 	this 	matter 	was 	filed 	by 	Joyner 	in 	May 	of
1982, 	almost 	a 	year 	after 	the 	events 	leading 	to 	the 	dispute
concerning 	doctor's 	excuses 	and 	sick 	leave 	compensation. 	The
charge 	was 	amended 	and 	the 	Union 	was 	joined 	as 	a 	party
subsequent 	to 	that 	time. 	The 	final 	amendment 	of 	the 	charge 	was
in June of 1982.
29

It 	is 	found 	that 	Joyner 	was 	aware 	of 	the 	District's
intended 	application 	of 	the 	sick 	leave 	provisions 	and 	doctor's
verification 	requirements 	in 	March, 	April 	and 	May 	of 	1981,
almost 	a 	year 	prior 	to 	the 	time 	that 	the 	charge 	was 	filed. 10
It 	is 	further 	found 	that 	the 	Association 	was 	equally 	aware, 	or
should 	have 	been 	aware, 	of 	the 	District's 	intended 	application
of 	the 	contractual 	provisions 	relating 	to 	sick 	leave 	and
doctor's 	verifications 	at 	or 	about 	this 	same 	time. 	Gerald's
own 	admission 	shows 	that 	he 	knew 	of 	the 	District's 	request 	that
Joyner 	provide 	a 	verification 	of 	absences. 	Gerald's
discussions 	with 	Garen 	also 	revealed 	his 	knowledge 	of 	the
District's 	concern 	about 	the 	number 	of 	absences 	for 	alleged
sick leave.
Gerald, 	most 	assuredly, 	could 	have 	found 	out 	that 	Joyner
had 	not 	been 	compensated 	for 	certain 	alleged 	absences 	due 	to
illness, 	had 	he 	asked 	Joyner 	when 	she 	received 	her 	checks
covering 	the 	months 	of April 	and May 	of 	1981. 	While 	nothing 	in
the 	record 	shows 	that 	such 	an 	inquiry 	was 	made, 	it 	was
incumbent 	upon 	the 	Union 	to 	find 	out 	whether 	its 	contract
relating 	to 	provisions 	of 	doctor's 	verifications 	and 	sick 	leave
had 	been 	jeopardized 	by 	the 	actions 	of 	the District 	relating 	to
1 0 The 	District 	wrote 	several 	letters 	between 	March 	and
May 	1981 	concerning 	the 	matter 	of 	verification. 	The 	first
notice 	of 	the 	District's 	intended 	application 	of 	this
requirement 	occurred 	on March 6, 	1981, 	and 	Joyner 	was 	on 	notice
from 	that 	date. 	(See 	NLRB 	v. 	California 	School 	of 	Psychology
(9th Cir. 	1978) 	583 F.2d 	1099 	[99 LRRM 3195].)
30

this 	employee. 	Certainly, 	in 	early 	May 	1981 	when 	the
Association 	learned 	that 	Joyner 	might 	be 	discharged, 	it 	was 	on
notice 	that 	the 	District 	may 	have 	taken 	some 	action 	relating 	to
matters 	which 	Joyner 	discussed 	with 	Gerald 	in 	the 	spring 	of
1981. 	(Contrast, 	NLRB 	v. 	Don 	Burgess 	Construction 	Corp. 	d/b/a
Burgess 	Construction, 	Builders, 	and 	Donald 	Burgess 	and 	Verlon
Hendrix 	d/b/a 	V 	& 	B 	(9th 	Cir. 	1979) 	596 	F.2d 	378 	enf'g 	(1979)
227 	NLRB 	765; 	NLRB 	v. 	Allied 	Products 	Corp., 	Richard 	Brothers
Division 	(6th Cir. 	1977) 	548 F.2d 644.)
Similarly, 	Gerald 	should 	have 	known 	and 	it 	is 	concluded
that 	he 	must 	have 	known, 	that 	the 	District 	was, 	in 	part,
proceeding 	against 	Joyner 	in 	its 	dismissal 	action 	because 	of
her 	excessive 	absences. 	Gerald's 	frequent 	conversations 	with
Joyner 	during 	the 	spring 	of 	1981, 	coupled 	with 	her 	complaints
to 	him 	that 	the 	District 	was 	concerned 	about 	her 	absences, 	and
Gerald's 	own 	discussions 	with 	Garen, 	all 	indicate 	that Joyner's
use 	of 	sick 	leave 	was 	an 	issue 	which 	would 	have 	been 	raised 	in
her 	termination 	proceedings. 	A 	simple 	question 	to Joyner 	would
have 	revealed 	the 	basis 	for 	the 	District's 	action. 	If 	indeed,
the 	District's 	action 	would 	have 	raised 	contractual 	questions,
the Association should 	have 	known about 	it at 	that 	time.
The 	fact 	that 	the 	Association 	was 	reluctant 	to 	obtain 	too
much 	information 	from 	Joyner 	because 	it 	feared 	it 	might 	be
found 	to 	be 	derelict 	in 	its 	representational 	obligations 	in
another 	action, 	is 	hardly 	justification 	for 	failure 	to 	police
its contract.
31

It 	is 	concluded 	that 	the 	Association 	knew 	or 	should 	have
known, 	in 	the 	spring 	of 	1981, 	of 	the 	District's 	intended
application 	of 	the 	doctor's 	verification 	and 	sick 	leave
provisions 	of 	the 	agreement 	between 	the 	parties. 	Therefore, 	it
is 	found 	that 	the 	allegations 	by 	Joyner 	and 	the 	Association
relating 	to 	alleged 	unlawful 	unilateral 	change 	or 	repudiation
of 	the 	contract 	concerning 	verification 	of 	such 	leave 	and 	the
denial 	of 	compensation 	for 	unverified 	illnesses 	are
time-barred, 	and 	those 	portions 	of 	the 	complaint 	are
dismissed.11
11Charging 	Party 	never 	argued 	at 	the 	hearing 	or 	in 	its
brief 	that 	the 	statute 	of 	limitations 	was 	tolled 	by 	virtue 	of
the 	fact 	that 	the 	Professional 	Competence 	Committee 	proceedings
were 	in 	progress 	until 	approximately 	November 	of 	1982 	or
because 	the 	Association 	filed 	a 	grievance. 	(See 	Victor 	Valley
Joint 	Union 	High 	School 	District 	(12/29/82) 	PERB 	Decision 	No.
273 	and 	State 	of 	California, 	Department 	of 	Water 	Resources, 	et
al. 	(12/29/81) 	PERB 	Order 	No. 	Ad. 	122-S; 	cf. Elkins 	v. 	Derby
(1974) 	12 	Cal.3d 	410 	[115 	Cal.Rptr. 	641]; 	Myers 	v. 	County 	of
Orange 	(1970) 	6 	Cal.App.3d 	626 	[86 	Cal.Rptr. 	198].) 	Neither
argument 	would 	have 	merit. 	The 	proceedings 	by 	the 	Commission
on 	Professional 	Competence 	were 	admittedly 	limited 	to 	matters
outside 	of 	the 	contract, 	solely 	involving 	the 	dismissal 	and 	had
no 	impact 	upon 	the 	issue 	of 	whether 	the 	District 	unilaterally
changed 	its 	verification 	and 	sick 	leave 	policy. 	Any 	tangential
relationship 	to 	those 	issues 	would 	not 	be 	sufficient 	to 	invoke
the 	doctrine 	of 	equitable 	tolling 	in 	that 	the 	defenses,
evidence, 	and 	issues 	in 	the 	competence 	proceeding 	would 	not 	be
the 	same 	or 	sufficiently 	similar 	to 	justify 	tolling 	of 	the
unfair 	practice 	filing 	date. 	(Victor 	Valley 	Joint 	Union 	High
School 	District, 	supra.) 	Similarly, 	the 	filing 	of 	the
purported 	grievance 	on 	January 	13, 	1982, 	admittedly 	beyond 	the
time 	limits 	of 	the 	grievance 	procedures 	in 	the 	contract 	and
almost 	nine 	months 	following 	the 	alleged 	unilateral 	changes
would 	not 	permit 	charging 	party 	to 	argue 	that 	the 	statute 	of
limitations 	should 	be 	tolled 	as 	a 	matter 	of 	equity 	and 	the
argument 	would 	be 	barred 	by 	the 	doctrine 	of 	laches. 	(See 	and
compare 	Calexico 	Unified 	School 	District 	(12/20/82) 	PERB
Decision 	No. 	265 	at 	13.) Respondent 	in 	this 	case 	would 	most
32

Conversely, 	the 	allegations 	of 	the 	charge 	relating 	to 	the
unlawful 	conduct 	of 	the 	District 	in 	failing 	to 	process 	the
grievance 	filed 	in 	January 	of 	1982 	and 	the 	alleged 	repudiation
of 	the 	contract 	and 	unlawful 	motivation 	in 	discharging 	Joyner
in 	November 	of 	1981, 	are 	found 	not 	to 	be 	time-barred 	and 	fall
within 	a 	period 	of 	six 	months 	prior 	to 	the 	time 	the 	charge 	as
subsequently 	amended 	was 	filed 	in April 	of 	1982.
The Allegation 	that 	the District 	Repudiated 	or 	Changed 	the
Contract Relating 	to Sick 	Leave 	and 	Doctor's Verification
When 	it Discharged Joyner
Although 	it 	has 	been 	shown 	that 	the 	allegations 	of 	the
charge 	relating 	to 	the 	District's 	request 	for 	verification 	and
its 	subsequent 	denial 	of 	sick 	leave 	compensation 	in 	March,
April 	and 	May 	of 	1981 	are 	time-barred, 	the 	District, 	in 	part,
based 	its 	dismissal 	of 	Joyner 	on 	excessive 	absences 	and 	failure
to 	comply 	with 	the 	request 	that 	she 	verify 	those 	absences. 	For
this 	reason, 	the 	Union's 	contention 	that 	the 	District
repudiated 	the 	contract 	by 	terminating 	Joyner 	because 	of 	her
excessive 	absences 	and 	failure 	to 	comply 	with 	the 	verification
requirements 	must 	be 	examined 	briefly 	here.
assuredly 	be 	surprised. 	The 	charging 	party 	waited 	nine 	months
in 	which 	to 	file 	a 	grievance. 	It 	would 	hardly 	be 	equitable 	to
toll 	the 	statute 	of 	limitations 	for 	an 	additional 	six 	months
thereafter. 	The 	statute 	may 	be 	tolled 	during 	the 	time 	a 	party
prepares 	for 	and 	pursues 	a 	grievance; 	however, 	time 	spent
sitting 	on 	one's 	rights 	is 	not 	included. 	(See 	Los 	Angeles
Unified 	School 	District 	(5/20/83) 	PERB 	Decision 	No. 	311 	at 	4-7
and 	San 	Dieguito 	Union 	High 	School 	District 	(2/25/82) 	Decision
No. 	194.)
33

The 	Union 	argues 	that 	Joyner's 	termination 	constituted 	a
repudiation 	of 	the 	contract 	provisions 	which 	permit 	employees
who 	have 	used 	all 	of 	their 	sick 	leave 	to 	be 	further 	compensated
for 	additional 	days 	of 	sick 	leave 	up 	to 	110 	days 	per 	year.
This 	compensation 	is 	based 	upon 	the 	differential 	between 	their
regular 	rate 	of 	pay 	and 	the 	amount 	paid 	to 	substitutes. 	(See
contractual 	provisions 	at 	page 	24 	above.) 	The 	Union 	also
contends 	that 	the 	District's 	request 	for 	verification 	prior 	to
the 	time 	Joyner 	was 	absent 	constitutes 	a 	repudiation 	of 	the
agreement 	and 	her 	failure 	to 	comply 	with 	the 	request 	cannot 	be
a 	valid 	basis 	for 	discharge.
Thus, 	Joyner 	and 	the 	Association 	contend 	that 	by
terminating 	Joyner 	for 	excessive 	absences 	and 	failure 	to 	verify
absences, 	the 	District 	unilaterally 	changed 	or 	repudiated 	the
contract 	in 	violation 	of 	the 	District's 	duty 	to 	bargain
pursuant 	to 	EERA 	section 	3543.5(c). 	(See 	Grant 	Joint 	Union
High 	School 	District 	(2/26/82) 	PERB 	Decision 	No. 	196; 	Victor
Valley 	Joint 	Union 	High 	School 	District 	(12/31/81) 	PERB
Decision 	No. 	192; 	see 	also 	Davis 	Unified 	School 	et 	al.
(2/22/80) 	PERB 	Decision 	No. 	116; 	see 	C 	& 	C 	Plywood 	Corp.
(1967) 	385 	U.S. 	421 	[64 	LRRM 	1065]; 	NLRB 	v. 	Katz 	(1962) 	369
U.S. 	736 	[50 LRRM 2177].)
In 	Grant 	Joint 	Union High School District, 	supra, 	PERB 	held
that 	in 	order 	to 	establish 	a 	prima 	facie 	violation 	of
34

section 	3543.5(c) 	when 	a 	unilateral 	change 	in 	or 	repudiation 	of
a 	contract 	or 	past 	practice 	is 	alleged, 	a 	charging 	party 	must
show: 	(1) 	that 	the 	respondent 	has 	breached 	or 	otherwise
altered 	the 	parties' 	written 	Agreement 	or 	its 	own 	established
past 	practice; 	(2) 	that 	the 	breach 	or 	alteration 	amounts 	to 	a
change 	of 	policy 	(i.e.f 	that 	it 	had 	a 	generalized 	effect 	or
continuing 	impact 	upon 	the 	terms 	and 	conditions 	of 	employment
of 	bargaining 	unit 	members) ; 	and 	(3) 	that 	the 	change 	in 	policy
concerns 	matters 	within 	the 	scope 	of 	representation. 	(Placer
Hills 	Union 	School 	District 	(11/30/82) 	PERB 	Decision 	No. 	262
at 	3.) 	A 	mere 	isolated 	act 	against 	a 	single 	employee 	is
insufficient 	to 	establish 	a 	unilateral 	change 	in 	or 	repudiation
of 	an 	established 	policy 	or 	an 	existing 	contractual 	term.
(North 	Sacramento 	School 	District 	(12/20/82) 	PERB 	Decision 	No.
264 	at 	13.) 	There 	is 	a 	fine 	line 	between 	PERB's 	lack 	of
authority 	to 	enforce 	an 	employment 	contract 	between 	the
parties, 	and 	the 	need 	to 	determine 	its 	content 	or 	terms 	in
order 	to 	establish 	whether 	a 	violation 	of 	the 	EERA 	has
occurred. 	(Victor 	Valley 	Joint 	Union 	High 	School 	District,
supra; 	C & C Plywood Corp., 	supra.)
The 	contract 	between 	the 	District 	and 	the 	Association
provides 	that:
It 	shall 	be 	the 	prerogative 	of 	the
District 	to 	require 	physician's 	verification
of 	absence 	due 	to 	illness 	or 	injury 	if 	the
District 	has 	reason 	to 	believe 	that 	the
absence 	may 	not 	have 	been 	used 	for 	proper
sick 	leave purposes.
35

The 	Association 	argues 	that 	the 	District's 	declaration 	on
March 	6, 	1981, 	that 	all 	Joyner's 	future 	absences 	would 	have 	to
be 	verified 	violates 	the 	agreement 	which 	only 	requires
verification 	of 	absences 	after 	they 	have 	occurred. 	The 	record
shows 	that 	at 	the 	meeting 	on 	March 	6, 	1981, 	Bard 	warned 	Joyner
that 	all 	future 	absences 	would 	be 	subject 	to 	verification. 	The
record 	reflects 	that 	thereafter 	the 	District, 	repeatedly
requested Joyner 	to 	verify 	her 	absences 	in March, 	April 	and 	May
after 	they 	occurred. 	These 	requests 	were 	made 	in 	writing 	by
Rose 	Bard. 	Further, 	Joyner 	testified 	that 	when 	she 	called 	the
substitute 	clerk 	to 	tell 	her 	that 	she 	would 	be 	returning 	to
work 	after 	an 	absence, 	the 	clerk 	on 	behalf 	of 	the 	District,
requested 	that Joyner 	bring 	a doctor's 	verification.
Thus, 	assuming 	that 	the 	Union's 	contract 	interpretation 	is
correct, 	the 	record 	reflects 	that 	the 	District 	did 	not
repudiate 	the 	agreement. 	Rather, 	on 	March 6, 	1981, 	the
District 	gave 	advance 	warning 	to 	Joyner, 	that 	in 	the 	future,
absences 	will 	have 	to 	be 	verified 	based 	upon 	her 	undisputed
history 	of 	poor 	attendance 	for 	almost 	two 	years. 	Moreover,
after 	each 	absence 	or 	group 	of 	absences, 	the 	District
requested, 	on 	at 	least 	three 	or 	four 	occasions 	subsequent 	to
their 	occurrence, 	that 	Joyner 	verify 	these 	absences. 	Joyner
failed 	to 	comply. 	The 	District's 	application 	of 	the 	provisions
of 	the 	contract, 	in 	no 	way 	repudiates 	the 	plain 	meaning 	of 	the
agreement.
36

Moreover, 	Joyner's 	substantial 	and 	escalating 	number 	of
absences, 	six 	years 	after 	her 	initial 	injury, 	amply 	justify 	the
District's 	request 	that 	her 	absences 	be 	verified 	by 	a
physician. 	This 	interpretation 	is 	consistent 	with 	the
provisions 	of 	the 	contract 	permitting 	the 	District 	to 	verify
those 	absences 	which 	seem 	doubtful. 	Finally, 	it 	is 	notable
that 	Joyner 	testified 	her 	failure 	to 	provide 	doctor's 	excuses
was 	not 	based 	upon 	her 	belief 	that 	she 	had 	a 	contractual 	right
to 	refrain 	from 	doing 	so, 	but 	rather 	was 	based 	upon 	her 	own
determination 	that 	the 	District 	had 	all 	the 	information 	it
needed.
The 	District's 	action 	discharging 	Joyner 	as 	unfit 	for
service 	due 	to 	excessive 	absences 	does 	not 	in 	any 	way
constitute 	a 	repudiation 	of 	the 	contractual 	provisions
providing 	for 	excess 	sick 	leave 	compensation 	of 	up 	to 	110 	days
a 	year. 	The 	provisions 	of 	the 	agreement 	do 	not 	guarantee 	that
the 	employees 	may 	have 	over 	110 	days 	a 	year 	of 	sick 	leave.
Such 	an 	interpretation 	is 	not 	consistent 	with 	the 	plain
language 	of 	the 	agreement. 	The 	negotiating 	history 	indicates
that 	the 	implementation 	of 	the 	sick 	leave 	language 	was
incorporated 	solely 	to 	bring 	the 	contract 	into 	conformity 	with
the 	provisions 	of 	section 	44977 	of 	the 	Education 	Code. 	The
section 	upon 	which 	the 	Association 	relies 	in 	its 	claim 	of
repudiation, 	merely 	describes 	how 	employees 	will 	be 	compensated
when 	their 	absences 	exceed 	the 	maximum 	days 	of 	sick 	leave
37

accumulated. 	Pursuant 	to 	the 	contract, 	the 	employees 	will 	earn
10 	leave 	days 	of 	sick 	leave 	each 	year. 	Nothing 	in 	the 	contract
guarantees 	that 	after 	their 	accumulated 	sick 	leave 	is
exhausted, 	employees 	may 	then 	take 	an 	additional 	110 	days 	of
sick 	leave.
The 	District's 	interpretation 	of 	the 	contract 	provisions 	in
question 	is 	a 	reasonable 	one. 	Absent 	some 	evidence 	of 	a
contrary 	intent 	or 	established 	practice, 	the 	District's 	conduct
cannot 	be 	found 	to 	be 	a 	repudiation 	of 	an 	agreement 	or
unilateral 	change 	of 	an 	existing 	practice. 	(See 	Chico 	Unified
School District 	(2/22/83) 	PERB Decision No. 	286, 	supra.) 	Thus,
the 	allegations 	that 	the 	District 	repudiated 	the 	agreement 	by
basing 	Joyner's 	discharge 	on 	excessive 	absences 	and 	failure 	to
verify 	illness 	are 	dismissed.
The District's Failure 	to Process 	the Grievance
In 	a 	similar 	vein, 	the Association 	argues 	that 	the 	District
failed 	to 	process 	its 	grievance 	concerning 	the 	District's
requirement 	that 	Joyner 	verify 	her 	absences 	and 	its 	failure 	to
pay 	her 	for 	her 	unverified 	absences. 	The 	Association 	contends
that 	the 	District's 	failure 	to 	process 	this 	grievance,
constituted 	a 	unilateral 	change 	and 	repudiation 	of 	the
obligations 	of 	the 	District 	under 	the 	contract. 	(See 	cases
cited 	at pp. 	34-35 	above.)
Union 	President 	James 	Gerald 	testified 	that 	at 	some
unspecified 	time 	prior 	to 	January 	of 	1982, 	he 	spoke 	with
Assistant 	Superintendent 	Garen 	about 	filing 	a 	grievance
38

concerning 	Joyner's 	sick 	leave 	verification 	and 	compensation.
At 	the 	time 	Gerald 	spoke 	with 	Garen, 	he 	testified 	that 	he 	knew
that 	the 	grievance 	time 	lines 	had 	long 	passed 	and 	suggested
that 	he 	might 	pursue 	the 	dispute 	against 	the 	District 	in 	some
other 	forum. 	Garen 	responded 	that 	he 	preferred 	that 	a
grievance 	be 	filed.
Sometime 	after 	the 	conversation 	between 	Gerald 	and 	Garen,
the 	Union 	presented 	a 	written 	grievance 	to 	the 	District.
Ostensibly, 	copies 	of 	the 	grievance 	were 	given 	to 	both 	Garen
and 	the 	superintendent. 	At 	the 	time 	Garen 	was 	given 	a 	copy 	of
the 	grievance, 	he 	was 	preparing 	to 	leave 	to 	take 	a 	position
with 	another 	school 	district. 	The 	record 	is 	devoid 	of 	any
evidence 	of 	what 	the District 	did 	about 	this 	grievance.
No 	further 	communications 	between 	the 	Association 	and 	the
District 	occurred 	until 	approximately 	April 	of 	1982 	when 	the
Association 	sent 	the 	superintendent 	a 	list 	of 	three 	grievances
which 	were 	outstanding 	and 	unresolved 	in 	the 	wake 	of 	Garen 1 s
departure. 	The 	Association 	wrote, 	"We 	would 	appreciate 	your
Level 	II 	- 	Proposed 	Resolution 	within 	10 	days; 	not 	hearing
this, 	in 	any 	manner, 	we 	shall 	assume 	you 	wish 	to 	proceed 	to
arbitration." 	The 	record 	fails 	to 	show 	whether 	the 	District
39

responded 	to 	this 	letter. 	Moreover, 	the 	record 	fails 	to 	show
that 	the 	Union 	did 	anything 	further 	in 	pursuit 	of 	the
grievance. 	Yet 	the 	contract 	requires 	the 	Union 	to 	notify 	the
District 	if 	a 	matter 	is 	submitted 	for 	arbitration 	(see
Article V 	B.4.a. 	at 	pp. 	22-23 	above). 	The 	record 	shows 	no
evidence 	of 	any 	grievance 	other 	than 	Joyner's 	which 	was 	not
resolved 	in 	some 	fashion 	and 	it 	appears 	that 	the 	Union 	and 	the
District 	were 	able 	to 	resolve 	the 	other 	two 	grievances
mentioned 	in 	the 	April 	letter 	to 	the 	superintendent. 	Neither
of 	these 	grievances 	involved 	a 	timeliness 	question.
The 	record 	fails 	to 	support 	an 	allegation 	that 	the 	District
changed 	a 	past 	practice 	or 	policy 	of 	generalized 	effect, 	so 	was
to 	amount 	to 	a 	violation 	of 	the 	EERA. 	At 	worst, 	the 	District
agreed 	to 	make 	an 	exception 	to 	the 	time 	lines 	in 	the 	contract
to 	permit 	the 	filing 	of 	a 	grievance 	at 	the 	first 	level. 	Having
made 	this 	exception, 	it 	is 	unclear 	that 	the 	District 	was
committed 	to 	do 	anything 	beyond 	look 	at 	the 	plain 	language 	of
the 	grievance. 	Nothing 	in 	the 	contract 	obligated 	the 	District
to 	agree 	to proceed 	to 	arbitration.
This 	unique 	situation 	relating 	solely 	to 	one 	individual's
grievance, 	filed 	substantially 	out 	of 	time, 	does 	not 	justify 	a
finding 	that 	the 	District 	repudiated 	the 	agreement. 	The 	record
would 	equally 	admit 	of 	an 	interpretation 	that 	the 	District's
action 	or 	nonaction 	constituted 	a 	denial 	of 	the 	grievance 	as
much 	as 	it 	constituted 	a 	failure 	or 	refusal 	to 	process 	it.
Whether 	the 	District's 	rejection 	of 	the 	grievance 	is 	justified
40

is 	a 	matter 	for 	another 	tribunal. 	See 	Baldwin 	Park 	Unified
School District 	(4/4/79) 	PERB Decision No. 	92.
Finally, 	there 	is 	a 	serious 	question 	why 	the 	Union 	took 	no
further 	action 	to 	move 	the 	Joyner 	grievance 	forward. 	The 	mere
filing 	of 	the 	grievance 	and 	a 	subsequent 	letter 	some 	three
months 	later 	hardly 	indicates 	an 	enthusiastic 	pursuit 	of 	the
grievance 	to 	permit 	one 	to 	conclude 	that 	the 	District 	had
unlawfully 	repudiated 	the 	procedures 	for 	grievance 	resolution
in 	the 	contract.
It 	is 	concluded 	that 	the 	District's 	conduct 	does 	not
support 	a 	finding 	of 	a 	repudiation 	of 	its 	obligations 	under 	the
grievance 	provisions 	of 	the 	contract. 	The 	Union 	has 	failed 	to
show 	the 	District 	refused 	to 	go 	to 	arbitration 	or 	that 	the
District 	engaged 	in 	conduct 	which 	can 	be 	construed 	as 	a
repudiation 	of 	the 	policies 	or 	practices 	of 	the 	District
relating 	to 	grievance 	processing.
Thus, 	the 	Association 	has 	failed 	to 	prove 	the 	District
unilaterally 	changed 	or 	repudiated 	its 	agreement 	in 	the 	manner
in 	which 	it 	processed 	Joyner's 	grievance. 	This 	aspect 	of 	the
charge 	is 	dismissed.
The Alleged 	Discrimination Against 	Joyner 	Because 	of
Protected 	Activity
The 	Association 	contends 	that 	the 	District 	discriminated
against 	Rosebud 	Joyner 	by 	discharging 	her 	because 	of 	her
exercise 	of 	protected 	rights 	under 	the 	EERA. 	In 	the 	now
41

frequently 	cited 	case 	of 	Novato 	Unified 	School 	District
(4/30/82) 	PERB 	Decision 	No. 	210, 	PERB 	set 	forth 	the 	test 	and
general 	standards 	to 	be 	applied 	in 	cases 	where 	employers 	are
alleged 	to 	have 	discriminated 	against 	employees 	because 	of 	an
exercise 	of 	rights 	protected 	by 	the 	EERA. 	Under 	the 	Novato
rule, 	the 	charging 	party 	alleging 	discrimination 	within 	the
meaning 	of 	section 	3543.5(a) 	has 	the 	burden 	of 	showing 	that 	the
protected 	conduct 	was 	a 	motivating 	factor 	in 	the 	employer's
decision 	to 	take 	adverse 	personnel 	action. 	Quite 	often,
evidence 	of 	such 	motivation 	must 	be 	established
circumstantially 	since 	direct 	proof 	is 	often 	unavailable. 	(See
Republic 	Aviation 	Corp. 	v. 	NLRB 	(1945) 	324 	U.S. 	793 	[16 	LRRM
620].) 	If 	the 	charging 	party 	can 	establish 	an 	inference 	that
there 	is 	a 	nexus 	between 	the 	proved 	protected 	activity 	and 	the
adverse 	personnel 	action, 	then 	the 	burden 	will 	shift 	to 	the
employerl2 	to 	show 	that 	it 	would 	have 	taken 	the 	action
regardless 	of 	the 	employees' 	participation 	in 	protected
activity. 	(Novato, 	supra; 	see 	also, 	Wright Line, 	a Division of
Wright Line, 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM 1169].)
When 	viewed 	in 	its 	totality, 	the 	record 	in 	this 	case 	fails
to 	show 	that 	Joyner 	engaged 	in 	any 	protected 	activities 	of
sufficient 	moment 	to 	establish 	that 	they 	were 	a 	motivating
12Compare 	NLRB 	v. 	Transportation 	Management Cor	- P.p.E..,_
(1st Cir. 	1982) 	674 F.2d 	130 	cert, 	granted 	(U.S.S.Ct. 	1982) 	103
S.Ct. 	372 No. 	82-168.
42

factor 	for 	discriminatory 	termination 	by 	the 	District. 	(See
Poway 	Unified 	School 	District 	(4/14/83) 	PERB 	Decision 	No. 	303,
at 	8-9.)
At 	some 	time 	in 	the 	late 	1960's 	Joyner 	was 	a 	member 	of 	the
American 	Federation 	of 	Teachers. 	Her 	activities 	with 	that
Union 	were 	hardly 	notable. 	There 	is 	no 	evidence 	that, 	during
the 	time 	that 	she 	was 	affiliated 	with 	that 	organization, 	the
District 	knew 	of 	her 	activities 	or 	had 	reason 	to 	be 	concerned
about 	them. 	Joyner 	disaffiliated 	with 	the 	American 	Federation
of Teachers 	in mid-1970.
It 	was 	not 	until 	some 	unspecified 	time 	in 	1980-81 	school
year 	that 	Joyner 	claims 	to 	have 	engaged 	in 	any 	other 	specific
conduct 	which 	she 	alleges 	to 	be 	protected. 	During 	this 	period
of 	time, 	she 	complained 	about 	dogs 	and 	fleas 	in 	and 	around 	her
classroom. 	There 	is 	no 	evidence 	of 	the 	frequency 	of 	the
complaints, 	and 	there 	is 	no 	evidence 	the 	District 	responded 	to
them.
Joyner 	was 	involved 	with 	other 	teachers 	in 	opposing 	the
mid-year 	change 	of 	principal 	at 	the 	school 	in 	which 	she 	worked
in 	1981. 	Her 	role 	in 	this 	protest 	was 	no 	different 	than 	any
other 	of 	the 	10 	to 	20 	teachers 	on 	the 	"committee." 	No 	other
teacher 	appears 	to 	have 	had 	the 	focus 	of 	discrimination 	vested
upon 	them.13 Joyner 	along 	with 	other 	teachers, 	also 	opposed
13Joyner 	testified 	that 	a 	probationary 	teacher 	was 	also
discriminated 	against. 	However, 	the 	imprecise 	testimony 	of
Joyner 	concerning 	the 	person 	leaves 	the 	record 	wanting 	and
fails 	to 	establish 	what 	adverse 	action, 	if 	any, 	was 	taken
against 	this 	employee.
43

a 	transfer 	of 	certain 	colleagues 	from 	her 	school. 	She 	made 	a
statement 	that 	a 	class 	action 	should 	be 	filed 	and 	this
statement 	was 	overheard 	by 	an 	assistant 	principal.
Finally, 	during 	this 	same 	period 	of 	time, 	the 	1980-81 	school
year, 	Joyner 	intentionally 	failed 	to 	attend 	certain 	faculty
meetings 	because 	she 	felt 	her 	time 	was 	better 	spent 	in 	the
classroom.
It 	is 	important 	to 	consider 	that 	most 	of 	these 	activities
alleged 	to 	be 	protected, 	were 	done 	in 	association 	with 	many
other 	faculty 	members. 	Though 	Joyner 	claimed 	to 	be 	involved 	in
each 	of 	these 	actions, 	the 	record 	shows 	that 	she 	was 	no 	more
vocal, 	no 	more 	prominent 	and 	no 	more 	a 	leader 	than 	any 	of 	the
other 	employees 	involved 	in 	these 	activities. 	Thus 	Joyner's
minimal 	conduct, 	lacking 	character 	as 	a 	unique 	threat 	to 	the
District, 	hardly 	justifies 	any 	reaction 	by 	this 	employer.
(Contrast 	San 	Leandro 	Unified 	School 	District 	(2/24/83) 	PERB
Decision 	No. 	288 	where 	the 	protest 	of 	extra 	duty 	assignments
was 	carried 	out 	by 	a 	highly 	visible 	individual 	who 	actively
directed 	and 	organized 	the 	conduct 	in 	question.)
Moreover, 	many 	of 	the 	activities 	which 	Joyner 	purportedly
engaged 	in 	were 	hardly 	protected. 	It 	is 	doubtful 	that
employees 	are 	free 	to 	protest 	an 	administrative 	determination
to 	change 	site 	managers, 	principals 	or 	others 	absent 	some
relationship 	to 	employee 	working 	conditions. 	(See 	State 	of
California, 	Department 	of 	Developmental 	Services 	(7/28/82) 	PERB
44

Decision 	No. 	228-S.) 	The 	protest 	here 	had 	nothing 	to 	do 	with
the 	impact 	on 	the 	employees' 	work 	but 	rather 	was 	based 	on 	their
personal 	preference 	for 	a 	particular 	individual 	as 	principal.
(Compare 	State 	of 	California, 	Department 	of 	Transportation
(11/16/82) 	PERB Decision No. 	257-S 	at 7-8.)
Joyner's 	failure 	to 	attend 	faculty 	meetings 	because 	she
felt 	her 	time 	was 	better 	spent 	in 	teaching 	students 	or 	for 	any
other 	reason 	is 	not 	protected, 	is 	insubordinate 	and 	justifies
no 	protection 	under 	the 	EERA. 	(See 	Modesto 	City 	Schools
(3/8/83) 	PERB 	Decision 	No. 	291 	at 	22-23) 	Finally, 	Joyner's
minimal 	safety 	complaints 	and 	complaints 	about 	transfer 	of
fellow 	teachers, 	while 	arguably 	protected, 	are 	not 	in 	and 	of
themselves 	sufficient 	to 	raise 	an 	inference 	of 	discrimination
when 	as 	noted 	below, 	the 	employer 	establishes 	valid 	reasons 	for
personnel 	actions 	taken 	against 	the 	employee. 	(See 	Sacramento
City 	Unified 	School 	District 	(11/18/82) 	PERB 	Decision 	No. 	259;
c f . 	NLRB 	v. 	Tamara 	Foods, 	Inc. 	(8th 	Cir. 	1982) 	692 	F.2d 	1171
[111 	LRRM 	3003] 	enfg. 	(1981) 	258 	NLRB 	No. 	180 	[108 	LRRM 	1218];
Zurn 	Industries, 	Inc. 	v. 	NLRB 	(9th 	Cir. 	1982) 	680 	F.2d 	683
[110 LRRM 2944] 	enfg. 	(1981) 	255 NLRB No. 	88 	[106 LRRM 1353].
The 	fact 	that 	the 	District 	began 	to 	focus 	on 	Joyner's
absences 	and 	eventually 	brought 	termination 	action 	shortly
after 	a 	new 	principal 	came 	to 	her 	school, 	does 	not 	in 	and 	of
itself 	suggest 	that 	there 	was 	discriminatory 	motive. 	Rather
Joyner's 	history 	of 	absences 	for 	over 	two 	years 	during 	50
45

percent 	of 	the 	school 	year, 	coupled 	with 	her 	insubordinate
conduct 	with 	regard 	to 	the 	new 	principal 	amply 	justified 	the
District's 	focus 	upon 	her 	and 	concern 	about 	her 	continued
ability 	to 	function 	as 	a 	teacher 	of 	the 	District. 	The
District's 	response 	under 	the 	facts 	of 	this 	case 	appears 	to 	be
justified 	and 	cannot 	be 	a 	basis 	for 	an 	inference 	of 	wrongdoing.
It 	is 	thus 	concluded 	that 	the 	evidence 	on 	this 	record 	does
not 	support 	a 	finding 	that 	the 	adverse 	personnel 	actions 	taken
against 	Joyner 	were 	in 	any 	way 	motivated 	by 	her 	exercise 	of
protected 	rights 	pursuant 	to 	the 	EERA. 	Thus, 	this 	aspect 	of
the 	charge must 	be 	dismissed.
Interference
Nor 	can 	the 	Association 	or 	Joyner 	successfully 	argue 	that
the 	District 	interfered 	with 	Joyner's 	protected 	rights. 	(See
Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB 	Decision
No. 	89.) 	The 	record 	reflects 	that 	the 	District 	discharged
Joyner 	when 	she 	failed 	to 	produce 	verification 	and 	denied 	her
certain 	compensation 	for 	alleged 	absences 	due 	to 	illness. 	The
District's 	reasons 	for 	requiring 	doctor's 	excuses 	and 	failing
to 	pay 	for 	absences 	without 	verification 	are 	amply 	justified 	by
its 	need 	to 	maintain 	a 	stable 	academic 	environment 	for 	its
students. 	"EERA 	does 	not 	guarantee 	employee 	activists 	a 	right
to 	be 	insulated 	from 	nondiscriminatory 	personnel 	actions."
Office 	of 	the 	Los 	Angeles 	County 	Superintendent 	of 	Schools
(12/16/81) 	PERB 	Decision 	No. 	263 	at 	8-9. 	Since 	the 	personnel
46

actions 	taken 	against 	Joyner 	have 	been 	found 	to 	be
nondiscriminatory, 	concomitantly 	there 	is 	no 	finding 	that 	these
actions 	interfered 	with 	any 	of 	Joyner's 	protected 	rights. 	Thus
it 	is 	concluded, 	the 	District 	did 	not 	interfere 	with 	any 	rights
protected 	by 	the EERA.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law, 	and 	the 	entire 	record 	in 	this 	matter, 	the 	unfair 	practice
charge 	in 	case 	LA-CE-1562, 	filed 	by 	the 	Inglewood 	Teachers
Association 	and 	Rosebud 	Joyner 	against 	the 	Inglewood 	Unified
School 	District 	and 	the 	incorporating 	PERB 	Complaint 	are 	hereby
DISMISSED.
Pursuant 	to 	California 	Administrative 	Code, 	title 	8,
part III, 	section 	32305, 	this Proposed 	Decision 	and 	Order 	shall
become 	final 	on 	June 	29, 	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, 	title 	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
June 	29, 	1983, 	or 	sent 	by 	telegraph 	or 	certified 	United 	States
47

mail, 	postmarked 	not 	later 	than 	the 	last 	day 	for 	filing 	in
order 	to 	be 	timely 	filed. 	See 	California 	Administrative 	Code,
title 	8, 	part 	III, 	section 	32135. 	Any 	statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	served 	concurrently 	with 	its
filing 	upon 	each 	party 	to 	this 	proceeding. 	Proof 	of 	service
shall 	be 	filed 	with 	the 	Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32300 and 32305.
Dated: 	June 9, 	1983
STEPHEN H. NAIMAN
Administrative Law Judge
48
'