Healdsburg Union High School District (PERB 1185E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RUSSELL 	HATCHER,
Charging 	Party,
v.
HEALDSBURG 	UNION 	HIGH 	SCHOOL
DISTRICT,
Respondent.
Case No. 	SF-CE-1774
PERB Decision No. 	1185
February 24, 	1997
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	& 	ITS 	HEALDSBURG
CHAPTER NO. 	314,
Charging 	Party,
V.v.
HEALDSBURG 	UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
Case No. 	SF-CE-1818
Appearances: 	Russell Hatcher, 	on his own behalf; 	School and
College Legal Services by Lawrence M. 	Schoenke, 	Attorney, 	for
Healdsburg Union High School District; 	Arnie R. 	Braafladt,
Attorney, 	for California School 	Employees Association 	& 	its
Healdsburg Chapter No. 	314.
Before Caffrey, 	Chairman; 	Garcia and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before the Public Employment
Relations 	Board 	(Board) 	on exceptions 	filed by both Russell
Hatcher 	(Hatcher) 	and the Healdsburg Union High School 	District
(District) 	to a Board administrative 	law judge's 	(ALJ) 	proposed
decision 	(attached). 	In his decision, 	the ALJ found that 	the
District did not violate section 3543.5(a) 	and 	(b) 	of 	the
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Educational 	Employment Relations Act 	(EERA)1 when it 	took certain
adverse 	actions 	against 	Hatcher.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the proposed decision, 	the hearing transcript,
Hatcher's exceptions, 	the District's exceptions, 	and the
responses 	thereto. 	The Board finds 	the ALJ's 	findings 	of 	fact
and 	conclusions 	of 	law to be 	free 	from prejudicial 	error and
adopts 	them as 	the decision of 	the Board 	itself.
ORDER
The 	complaint 	and unfair practice 	charge 	in 	Case
No. 	SF-CE-1774 are hereby DISMISSED.
The 	complaint 	and unfair practice 	charge 	in Case
No. 	SF-CE-1818 	are hereby DISMISSED.
Chairman 	Caffrey and Member Garcia 	joined 	in 	this 	Decision.
1EERA is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
EERA section 3543.5 	reads, 	in relevant part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RUSSELL HATCHER,
Charging 	Party,
v.
HEALDSBURG UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
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Unfair 	Practice
Case No. 	SF-CE-1774
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	& 	ITS 	HEALDSBURG
CHAPTER NO. 	314,
Charging 	Party,
v.
HEALDSBURG UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-1818
PROPOSED 	DECISION
(8/9/96)
Appearances: 	California School 	Employees Association, 	by Arnie
Braafladt, 	for Russell Hatcher and California School 	Employees
Association & its Healdsburg Chapter No. 	314; 	School 	and College
Legal 	Services, 	by Lawrence M. 	Schoenke, 	for Healdsburg Union
High School 	District.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	proposed 	decision 	results 	from 	two 	unfair practice
charges 	filed against 	the 	Healdsburg Union High School 	District
(District).1 The first unfair practice charge, 	SF-CE-1774, 	was
filed by Russell Hatcher 	(Hatcher) 	on March 8, 	1995. 	After
1The Healdsburg Union High 	School 	District 	and 	the
Healdsburg 	Elementary 	School 	District 	merged to 	became 	the
Healdsburg Unified School 	District 	on July 1, 	1995.
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investigation, 	and on June 	5, 	1995, 	the general 	counsel of the
Public Employment 	Relations 	Board 	(Board or PERB) 	issued a
complaint 	against 	the 	District. 	The 	complaint 	alleged that
Hatcher 	exercised 	rights 	guaranteed by 	the 	Educational 	Employment
Relations Act 	(EERA or Act)2 from 1988 	to the present 	time by
acting as 	a 	job 	steward; 	and from 1991 	to 	1993, 	by acting as 	head
negotiator 	for 	the 	California 	School 	Employees Association and
its Healdsburg Chapter No. 	314 	(CSEA), 	the exclusive
representative 	of 	the 	District's 	classified employees. 	The
complaint 	alleged that on or about December 12, 	1994, 	the
District 	took 	adverse 	action 	against 	Hatcher by 	issuing 	a
statement 	of 	charges 	against 	him and 	seeking his 	dismissal. 	It
was 	alleged 	also 	that 	further 	adverse 	action was 	taken against
Hatcher by the 	District 	when 	it 	issued him written reprimands 	on
or about October 21, 	November 7 and 17, 	1994. 	The complaint
alleged 	that 	the 	District 	took 	the 	adverse 	actions 	against
Hatcher because of 	his protected activities, 	and in violation of
the 	EERA.
The 	District 	filed its 	answer to 	SF-CE-1774 	on June 	13,
1995, 	in which it 	denied any violation of EERA.
The 	second unfair practice charge, 	SF-CE-1818, 	was 	filed by
CSEA on July 21, 	1995. 	Again, 	after investigation, 	PERB issued a
complaint on October 6, 	1995, 	against the District. 	The
complaint alleged the 	same 	facts as 	SF-CE-1774, 	set 	forth above,
2EERA is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government 	Code.
22

regarding 	Hatcher's 	alleged protected 	activity. 	The 	complaint
additionally alleged 	that 	on June 	23, 	1995, 	the 	District 	took
adverse 	action 	against 	Hatcher 	by 	suspending 	him 	without 	pay 	from
his 	last 	day 	in paid 	service 	through 	June 	23, 	1995, 	and 	demoting
him 	to 	probationary 	status. 	The 	District 	took 	the 	action
complained 	of 	because 	of 	Hatcher's 	protected 	activity 	in
violation 	of 	section 	3543.5.3
The 	District 	filed 	an 	answer 	to 	SF-CE-1818 	on 	October 	18,
1995, 	denying 	violation 	of 	the 	EERA 	and 	raising 	factual 	and 	legal
assertions 	that 	will 	be 	addressed 	in 	this 	proposed 	decision.
Settlement 	efforts 	were 	not 	successful 	and 	formal 	hearing
was 	held on November 	13 	through 	15, 	.1995, 	and February 	6
through 	8, 	1996, 	in Healdsburg, 	California. 	The parties 	agreed
to 	consolidate 	the 	two 	complaints 	for 	formal 	hearing. 	With 	the
filing of 	post-hearing briefs 	on April 	30, 	1996, 	the 	matter was
deemed 	submitted 	for 	proposed 	decision.
3At 	the 	formal 	hearing, 	the 	complaint 	was 	amended 	to 	allege
a violation of 	section 3543.5(a) 	and 	(b) , 	which states, 	in
relevant 	part, 	that 	it 	shall 	be 	an unfair practice 	for 	the 	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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
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	3

FINDINGS 	OF 	FACT
CSEA 	is 	the 	exclusive 	representative 	for 	classified
employees 	of 	the District, 	and the District 	is 	a public 	school
employer, 	both within the meaning of EERA. 	Hatcher is 	an
employee 	of 	the 	District 	within the meaning of 	EERA.
Lawrence Machi 	(Machi) 	was 	superintendent until 	sometime 	in
the 	early fall 	of 	1994 when Sharon Robison 	(Robison) 	was
designated 	interim superintendent. 	John Rich 	(Rich) 	was 	business
manager 	and 	served 	as 	interim 	superintendent 	between Robison 	and
Nicholas 	Ferguson who was 	chosen 	superintendent 	in 	the 	spring of
1995.
Loretta 	Peterson-Strong 	(Strong) 	has 	been director of
personnel 	since 	1990 	and also 	served as 	director of 	curriculum.
Andrea Harris 	(Harris) 	served as 	director of 	transportation 	from
1991. 	At 	the 	same 	time 	she 	also served as principal 	of Mountain
View High School.4
Until 	1991, 	Richard Whitehurst 	(Whitehurst) 	served as
transportation director, 	and Donna Robbins 	(Robbins) 	was
transportation 	supervisor. 	A reorganization 	during 	that 	year
resulted 	in Whitehurst 	being 	reclassified 	to 	supervisor 	and
Robbins 	to dispatcher/trainer. 	Whitehurst 	left 	sometime 	in the
summer of 	1994.
Harry Smith 	(Smith) 	has been the 	CSEA field representative
for the District 	for 	five years.
4At 	the 	time of 	formal 	hearing 	in this matter, 	neither
Strong nor Harris were employees of 	the District. 	Harris was
laid off 	as 	a result 	of 	the merger.
4

Hatcher has been employed as 	a bus 	driver 	since 	1986. 	Since
1990, 	he 	has 	also been employed as 	a custodian 	for one 	and one-
half 	hours per day at 	the Healdsburg Junior High School.
Hatcher 	Activities
Hatcher became 	a 	CSEA shop 	steward 	in 	1988. 	He 	then became
lead 	steward 	and a member of 	the 	CSEA negotiations 	team 	in 	the
1990-91 	school 	year. 	Ron Brown was 	chief 	negotiator 	for CSEA,
but 	after a 	few months 	into the 	school year, 	Hatcher became 	the
chief 	negotiator 	for 	CSEA.
While Hatcher was on the negotiations 	team, 	Strong was 	a
member of 	the 	District's 	negotiation 	team. 	The 	District 	chief
negotiator was Bob Latchaw 	(Latchaw), 	and the other District
member was Rich.
Initially, 	there were two bargaining teams; 	one 	for the
elementary district 	and 	the 	other 	for 	the 	high 	school 	district.
Hatcher was 	chair 	for both teams 	in 	the 	1990-91 	and 	1991-92
school 	years 	although during Hatcher's 	membership 	the 	bargaining
teams were merged. 	Hatcher testified that 	he 	attended two 	to
three 	dozen bargaining sessions. 	Strong was 	very conservative 	in
her estimates 	of 	the 	number of 	times 	she 	encountered Hatcher at
the 	negotiations 	table. 	She 	said he may have been at 	the 	table
twice. 	Her estimate was 	contradicted by sign-in 	sheets 	that
reflect 	Hatcher was 	at 	the 	negotiations 	table 	at 	least 	some
15 times.
5

According to Smith, 	Robbins was Hatcher's 	supervisor 	for the
entire 	time 	he was 	chair of 	negotiations.5 Smith said Robbins
called many times 	trying 	to 	get 	Hatcher 	relieved as 	negotiator
because 	they were 	short 	of 	drivers. 	Hatcher 	stopped going to
negotiations towards the end, 	he said, 	because of Robbins'
harassment.
" . . ..
Hatcher made 	four presentations 	to both school 	boards 	on 	the
status 	of 	negotiations 	over the 	two year period. 	After the 	first
presentation, 	and at 	the next negotiations meeting, 	Latchaw
objected to Hatcher's 	presentation 	in that 	it was making an end
run around the 	District 	negotiators.6
Hatcher 	served on a 	CSEA budget 	analysis 	committee 	and a
reclassification 	committee. 	Strong was 	a District 	representative
on both committees.7 Smith 	said no 	other 	classified members 	on
those 	committees 	were 	ever disciplined.
Hatcher was 	a 	strong 	advocate 	for 	interest-based bargaining
and tried to get 	it 	implemented at 	the 	District 	level 	sometime
after he 	assumed 	a position on 	the 	CSEA bargaining 	team.
5This 	is not precisely accurate. 	As noted, 	Whitehurst was
made 	transportation 	supervisor 	and Robbins 	the 	dispatcher/trainer
in 1991. 	However, 	documents 	in the record make 	it 	evident 	that
Robbins 	was 	actively participating 	in managing 	the 	department.
6Smith 	testified 	that 	Strong 	asked 	to 	meet 	with him 	about
Hatcher meeting directly with Machi. 	She 	was 	unhappy when
anyone, 	including Smith, 	did it, 	he said.
7Despite 	the picture 	Hatcher has 	of 	Strong's views 	on
collective bargaining, 	Strong wrote Hatcher 	in March of 	1991
congratulating him on his 	new role 	as 	head negotiator 	for 	CSEA.
This 	letter 	followed one 	of 	the 	board presentations 	Hatcher had
made.
6

Smith 	testified 	that 	scheduling problems 	delayed the program. 	He
said Strong objected to 	a program that 	required 	five 	days 	off
site; 	she 	didn't want 	to be 	away from her 	family that 	long and
the District 	had concerns 	about 	a 	lot 	of 	employees 	being absent
for five days.
The program was 	held 	in the 	spring of 	1993 	after Machi, 	who
supported the 	concept, 	authorized it. 	Hatcher did not 	attend
because 	he was 	no 	longer on 	the negotiations 	team.
Hatcher was 	critical 	of 	Strong's 	position 	in 	collective
bargaining.8 However, 	Machi 	always 	had an open door policy with
Hatcher.
Grievances 	By Hatcher
During the 	time 	he was 	steward and 	lead steward, 	Hatcher
said, 	he handled 12 	to 18 grievances, 	including those 	in the
transportation department. 	Some 	four to 	six grievances 	got
beyond the 	informal 	conference. 	Hatcher 	said he 	resolved a
number of 	grievances 	at 	the 	informal 	level 	with Whitehurst 	who
was 	then director of 	transportation.
Hatcher's 	first 	grievance was 	in 	1988 	and 	involved an
alleged non-posting of 	a position. 	The 	grievance went 	to
level 	two 	after 	the 	first 	level 	with Whitehurst 	and 	then on
to the personnel 	director.
8Hatcher 	also 	testified 	that 	Strong 	complained 	her 	schedule
was 	too busy. 	Every time 	he 	talked to her 	she 	seemed to be
stressed. 	As noted, 	Strong also served as director of
curriculum.
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In 1991, 	Hatcher was 	involved in a grievance regarding a
reduction 	in his 	hours 	from 	five 	and three-quarters 	to 	five 	and
one-quarter hours. 	After pursuing the matter through Harris, 	and
completing levels one 	and two, 	Hatcher wrote 	to Machi 	on
December 16, 	1991. 	Later, 	in February 1992, 	Hatcher, 	Harris,
Strong and Smith met 	at 	two meetings 	and worked out 	an agreement
whereby Hatcher's 	workday would be 	increased by 	15 	minutes 	with
retroactive payment 	to the previous 	September. 	The 	increase was
to be 	1.25 	hours 	per week 	and would be 	spent 	in 	landscaping at
the 	transportation yard.9 This 	was 	expressed 	in a written 	letter
to Hatcher 	from Strong.
Smith 	said 	Strong expressed 	dismay 	that 	she 	had 	to 	negotiate
reduction 	in hours when the 	bidding process was 	in place.
On May 8, 	1992, 	Hatcher wrote to Strong regarding a
grievance 	filed by Mercedes 	Capwell 	(Capwell). 	Hatcher 	indicated
that 	he 	was 	submitting the 	grievance with 	the understanding 	that
the 	District 	would waive 	issues 	of 	timeliness. 	He was 	agreeing
to rewrite Capwell's April 	15, 	1992, 	grievance and had re-
submitted the grievance 	to Belen Lee. 	If 	this was not 	acceptable
to the District, 	Hatcher wrote, 	then CSEA wanted to go to
arbitration.
Strong did not 	take 	the 	memo 	as 	indicating Hatcher was
representing Capwell. 	In any event, 	she 	said an amended
grievance 	was 	never 	filed and 	the 	"matter 	just 	went 	away."
9As 	noted, 	Hatcher was 	already doing 	landscaping at 	the
junior high 	school.
8

Hatcher 	said he 	continued to pursue 	grievances 	in 	the
transportation department 	until 	December of 	1994. 	He 	represented
Evelyn Carson 	in 	1992-93 	and 	1993-94 	and Kathy 	Zerbe 	sometime
between 1989 	and 1992. 	He 	also represented Robbins 	in a
grievance 	in 	1991 	regarding a 	reclassification.
While 	it 	did not 	rise 	to a grievance, 	Hatcher spoke 	to
Harris 	in mid-September 	1994 	about 	Ruby Sylvia, 	who Hatcher had
encountered crying. 	She was 	crying because 	other bus 	drivers
were 	chastising her 	for not 	coming 	to work 	the 	day before 	and
causing more 	stress 	on other bus 	drivers. 	Hatcher 	said he went
to Harris 	to discuss 	the 	safety 	issue 	in not 	having enough
substitute bus 	drivers. 	Harris 	told him she was 	getting a bus
driver's 	license 	herself. 	Hatcher complained to her that 	the
lack of 	substitutes 	had existed 	for 	the 	last 	two years.
Harris 	started driving 	in 	late 	September 	1994.
Performance 	Evaluations
Hatcher's most 	recent 	evaluation, 	covering the period
February 1, 	1993 	to February 1, 	1994, 	by Whitehurst, 	noted two
"needs 	improvement"; 	one 	in 	"Thorough in work performed" 	with the
notation 	that 	he 	needed to keep his 	bus 	cleaner. 	The 	other
"needs 	improvement" 	was 	in 	"Complies with District policies 	and
procedures," 	with the 	notation that 	he needed 	"to work on
assigned times given by 	[the] 	District." 	All 	other ratings were
either 	"satisfactory", 	"good" 	or 	"excellent", 	including one 	in
the 	latter on 	"Observes 	safety rules".
9

The prior year evaluation 	(1992-93), 	again by Whitehurst,
rated Hatcher with a preponderance 	of 	"excellent" 	with 	"good" 	for
"Thorough 	in work performed" 	and 	"Observes 	safety rules".
Robbins 	rated Hatcher, 	for the 	1990-91 evaluation period, 	as
"excellent" 	in all 	areas, 	save 	for 	"Thorough in work performed",
"Pupil contact", 	and 	"Observes working hours", 	where 	she rated
him a 	high 	"good".
In the next preceding evaluation 	(1989-90), 	Robbins noted
that 	Hatcher had 	"shown 	improvement 	in the 	area of 	tardiness 	of
work which 	is 	extremely 	important 	for a bus 	driver."
Performance 	Memos
On January 27, 	1988, 	Whitehurst 	caused to be 	issued a memo
concerning Hatcher's 	failure 	to 	show 	for work on January 	27,
1988. 	Hatcher responded, 	complaining the 	letter was unfair and
reflected 	"another bit 	of 	harassment" 	by Robbins. 	He went 	on to
say Robbins 	"seemed to get great delight" 	in the 	incident, 	it was
"not 	the 	first 	time" 	and that 	she did 	it with other employees.
He 	expressed the 	opinion 	that 	he 	felt 	"her 	immaturity and
spitefulness 	is 	a major cause of 	90% of all problem 	[sic] 	in the
bus shop."
. . ."
In May of 	that year, 	Whitehurst 	again gave Hatcher a written
memo 	regarding his 	failure 	to appear 	for his 	afternoon run.
Whitehurst 	noted 	"This 	has been a problem 	in 	the past 	either with
calling 	in at 	the 	last minute 	about 	not 	coming 	in or being 	late
for the morning route."
10

On June 20, 	1988, 	Rich met with Hatcher, 	a CSEA
representative 	and Whitehurst 	about 	Hatcher's 	absence 	on
January 27, 	May 16 and June 14, 	1988, 	without notice to the
District, 	and about unauthorized bus 	stops.
In May of 	1991, 	Robbins wrote 	to Hatcher about 	his 	failure
to turn in absence 	slips.10
In April 	of 	that year, 	Robbins wrote 	to Hatcher about prompt
reporting of 	on-the-job 	injuries.
All 	these 	documents 	went 	into Hatcher's personnel 	file.
In February of 1991, 	Stewart Fox 	(Fox), 	principal at the
junior high 	school, 	gave Hatcher a performance 	evaluation 	for his
custodial 	duties 	at 	that 	school. 	Fox rated Hatcher as 	"needs
improvement" 	in 	several 	areas 	and 	included a narrative 	that 	those
ratings 	referred to Hatcher not 	coming 	to work 	at 	times 	agreed
upon and that 	sometimes 	he was 	absent with out 	notice.
Hatcher testified that 	after the 	1990-91 	evaluation, 	he
offered to resign, 	but Fox wanted him to do the work. 	They
agreed Hatcher would not 	work 	the 	one 	and one-half 	hour per 	day,
but 	he would work his 	own hours 	averaging 	seven 	and one-half
hours per week. 	During the winter and rainy season he 	could not
work 	so he worked during the 	summer even though he was 	not 	a year
round employee.
10Robbins' 	memo referred to negotiation sessions. 	She noted
that 	he was 	supposed to hand 	in 	slips before 	negotiations
sessions. 	Hatcher 	said he 	started doing that 	after 	the memo was
given to him.
11

The April 	1993 	Letter
Hatcher's 	child has 	a renal 	condition that 	requires 	him to
wear a bag that 	has 	to be 	emptied every half 	hour. 	The 	District
provided 	the 	child with a 	watch 	and beeper 	to 	remind him 	to 	empty
the bag. 	The 	child is a 	student 	at 	Fitch Mountain Elementary
School.
Around March 22, 	1993, 	his 	child told him he had to spend
the whole morning 	in the 	office because 	he 	did not 	have 	the watch
on.
Hatcher went 	to talk to the 	lad's 	teacher, 	Norine 	Crnich
(Crnich) . 	He was, 	he said, 	addressing her as a parent.11
On April 	26, 	1993, 	Machi 	issued a letter to Hatcher.
The 	letter 	stated 	in part:
Pursuant 	to Article 	XX of 	the 	CSEA Collective
Bargaining Agreement 	. 	. 	. 	your conduct at
Fitch Mountain 	Elementary School 	on March 	23,
1993, 	constitutes 	"discourteous, 	offensive or
abusive 	language, 	or conduct 	towards 	another
employee" . . . .[12]
The 	letter 	stated that 	"while 	on duty as bus 	driver,"
Hatcher drove a 	school bus 	to the 	school. 	He did not 	seek prior
authorization to 	stop and leave 	the bus 	at 	the 	school. 	While at
the 	school, 	and on duty, 	Hatcher approached Crnich and began to
110n April 	5, 	1993, 	Hatcher wrote to the 	elementary school
board of 	trustees 	concerning his 	son Jackie 	and the problems 	he
was having with the 	school. 	Hatcher was 	critical 	of 	Crnich,
Principal Nancy Baker 	(Baker) 	and Machi. 	This was 	acknowledged
by the 	board 	in another exhibit.
12At 	this time, 	Hatcher was an employee of 	the high school
district, 	but 	the 	transportation department was providing 	service
to 	the 	elementary district.
12

yell 	at 	her and 	she 	felt 	physically 	intimidated. 	Hatcher's
conduct 	was 	so 	disruptive 	that 	Scott 	Richardson 	felt 	compelled 	to
intervene 	by 	stepping between 	them 	and 	asking Hatcher 	to 	leave
the 	school 	grounds. 	The 	letter stated that 	statements 	of 	four
named witnesses were 	enclosed, 	describing the 	incident 	"in
further detail." 	The 	letter closed with:
Pursuant 	to Section 20.4.1 	this 	is 	to warn
you 	that 	any further 	instances 	of 	offensive,
abusive, 	or assaultive behavior will 	lead to
disciplinary action up 	to 	and 	including
dismissal 	from your position.[13]
According to Smith, 	Hatcher was not 	on duty at 	the 	time 	and
was acting as 	a parent.
Regarding the 	incident, 	Hatcher testified that 	he was
questioning 	Crnich why his 	son was 	not 	being allowed 	in 	the
classroom without 	a watch. 	He 	testified that 	she 	immediately
became 	agitated and 	started yelling 	that 	if 	he wanted to 	talk
13Section 20.4.1 	of 	the 	July 1986 	to 	June 	1989 	CBA provides
Except 	in those 	situations where 	an 	immediate
suspension 	is 	justified under 	the provisions
of 	this Agreement, 	an employee whose work or
conduct 	is 	of 	such character as 	to 	incur
discipline 	shall 	receive 	an oral 	or written
warning from the 	supervisor. 	If 	the problem
persists, 	the employee shall be 	specifically
warned 	in writing by 	the 	supervisor 	and 	the
employee 	shall 	be given a 	reasonable period
of 	advanced warning 	to permit 	the 	employee 	to
correct 	the 	deficiency without 	incurring
disciplinary actions. 	Such warning shall
state 	the 	reasons 	underlying 	the 	intended
disciplinary actions 	and a 	copy or notice 	of
the warning 	shall 	be 	sent 	to 	the 	CSEA
president.
13

about 	it, 	that he should take 	it to Dr. 	Baker, 	the principal of
Fitch Mountain 	School.
Yet, 	in his 	letter to the board of 	trustees on April 	5,
1993, 	he 	attributed no such behavior to Crnich. 	Rather, 	he
wrote, 	she 	said if 	the child did not have 	the watch, 	he would not
be 	allowed 	in 	the 	classroom.
Smith 	contended 	that 	Machi's 	letter 	did not 	constitute
discipline. 	He 	stated that 	only harm to 	the 	employee 	constitutes
discipline 	and 	letters 	of 	warning do not 	constitute 	discipline.
Hatcher also testified the 	letter 	is not discipline, 	as
Machi 	and the 	District's 	lawyer 	confirmed with Hatcher's 	lawyer
that 	the 	letter was not 	discipline. 	Machi 	told him, 	Hatcher
testified, 	that 	the 	letter was 	necessary to avoid 	liability.
Hatcher 	first 	testified that 	the 	first 	he 	learned of 	the
April 	26 	letter with attachments 	was when he got 	the 	December 	12
statement of 	charges 	in the dismissal matter, 	described below.14
He 	later 	testified 	that 	the 	first 	time 	he 	saw the 	cover 	letter
and materials was when Smith brought 	his personnel 	file 	to him in
February of 	1995. 	Hatcher testified that 	he 	simply got 	the
letter 	itself 	and there 	was 	no 	cover 	letter or 	attachments 	(his
copy has no staple marks).
14Included as an attachment 	in Charging Party Exhibit 	No. 	12
the 	letter with 	a 	cover 	form noting 	it 	was 	going 	into Hatcher's
personnel 	file, 	and the 	right 	to 	review and attach written
response. 	Memos from Baker, 	Scott Richardson 	(custodian), 	Mary
Delfino 	(secretary) 	and Crnich regarding the 	incident 	are
attached as well 	as provisions 	of 	the 	CBA on discipline.
14

Hatcher ways 	he would have 	responded had he 	known the 	letter
was going into his personnel 	file. 	I 	note 	that 	the 	letter
asserts 	there 	were 	attached 	statements 	of 	four named witnesses,
including Crnich, 	explaining the 	incident 	in detail. 	Hatcher did
not 	explain why, 	though the 	letter he 	did get 	contained reference
to 	statements, 	he 	did not 	follow-up to ascertain the 	contents of
those 	statements.
The 	In-Service 	Hours 	Memo
Each bus 	driver is 	required to obtain ten hours 	of 	in-
service 	training each year by their birth date.
In 1992, 	Hatcher failed to complete his 	in-service
requirements by his birth date 	of 	September 	18. 	He had to get 	an
extension of 	time 	to 	acquire 	the 	necessary ten hours.
In discussions with Harris 	in 1993, 	the 	in-service hours
issue 	emerged. 	Harris wrote to Hatcher on September 14, 	1993,
four days before his 	time was up to get 	the 	in-service hours 	in,
stating, 	in relevant part:
As of September 24, 	1992, 	you were short
3 	3/4 	hours 	of 	in-service 	and that you were
given a 	60 	day notice 	to make-up the 	time.
You 	completed those 	hours 	in December of
1992. 	Your annual 	ten hours of 	in-service
are 	due 	annually on your birthday, 	September
18.
By September 1, 	1993, 	there still had been
no 	in-service hours 	submitted. 	This was
in 	spite 	of 	the printed postings 	of due
time, . . .
On Friday, 	September 10, 	you told me that
you had done your hours. 	I 	asked to then
submit 	them so 	that 	the 	issue 	could be
resolved. 	When you 	submitted the 	hours 	on
Monday, 	September 13, 	1993 	- you submitted
15

7 hours 	. 	. 	. 	done in August, 	1993 and again
submitted the December, 	1992. 	The December
hours 	cannot 	be 	used 	since 	they were 	used 	to
"make-up" 	the missing hours 	from 92-93.
It 	is my understanding that 	these 	hours must
be done by September 18, 	1993, 	. 	. 	.
In the 	letter, 	Harris noted hours 	of 	training that were
provided by the 	District 	to which Hatcher had not 	availed
himself. 	She 	concluded with the 	statement, 	"It 	is 	expected that
you will 	take more 	advantage 	of 	the 	hours 	offered 	in our
department 	and 	fulfill 	your 	in-service needs 	in a more 	timely
fashion."
The 	memo had a 	cover 	letter 	indicating that 	it 	was 	to go
into his personnel 	file 	ten days 	from the 	date with the 	right 	to
review the original 	and 	file 	a 	response. 	A copy went 	to 	Smith.
Smith 	said he 	called Hatcher 	and Hatcher 	said 	he 	had 	already
done 	the 	hours 	at 	West 	County Transportation Agency. 	At 	the 	time
the memo was written Hatcher 	still 	had time 	to get 	the 	hours 	in.
Smith did not 	understand 	the memo 	to be 	discipline.. . ..
The September 26. 	1994. 	Memo
On September 26, 	1994, 	Harris 	issued a memo to Hatcher
regarding the bus 	check out, 	tardiness 	and routine paper work.
She wrote that 	"[w]e 	continue 	to 	receive 	calls 	from Fitch
Mountain 	that 	you are 	late 	for 	the 	K Run and your afternoon run,"
on September 15, 	1994, 	when he was a half hour late, 	and
September 14, 	1994, 	when he was 15 minutes late. 	She stated she
had observed 	him 	in 	the 	morning 	just 	before 	leaving 	and 	taking
coffee 	and chatting without 	taking the proper amount 	of 	time 	on
16

bus 	safety checkup. 	She 	stated he was 	expected to 	come 	in and do
the proper bus 	checks 	and leave 	15 minutes before he was 	due 	at
his 	three pickup points.
Harris 	also 	stated 	her 	expectation 	that 	Hatcher would 	clean
his bus at 	the end of the day, 	put up the windows, 	and return the
fire 	extinguisher and keys 	to 	the main building. 	She 	noted that
on September 20, 	1994, 	both his keys 	and extinguisher were 	left
on the bus.
Harris 	noted 	that 	Hatcher 	had not 	submitted 	absence 	slips
for the week prior to school 	(August 	26 	to 29, 	1994), 	and two
days 	during the week of 	September 	19, 	he 	had submitted no 	log
sheets 	for the 	last 	three weeks 	nor had he provided the 	list 	of
students 	from the 	K-run.15
Harris 	closed with the 	expectation 	that 	Hatcher would
correct 	the 	above 	concerns 	regarding his 	duties 	and
responsibilities 	as 	a bus 	driver.
There was 	no notice 	that 	this memo was 	going 	into Hatcher's
personnel 	file 	or that 	he 	had the 	right 	to 	respond.
Harris 	had placed the memo 	in Hatcher's mail 	box. 	She 	later
found 	the 	memo 	on 	the 	CSEA bulletin board. 	Hatcher 	had written
15August 26 and 29, 	1994, 	were in-service training days.
Hatcher was 	at 	the 	first 	date 	for the 	first 	two hours. 	He bid
and got 	his 	route. 	While he was there, 	there was no discussion
of 	a 	log requirement.
With respect 	to the K-run list, 	the evidence 	is minimal.
Hatcher 	testified 	that 	he 	kept 	the 	list 	on 	the 	bus 	and did not
understand what 	else was 	to be 	done with the 	list.
17

across the top, 	"This 	is what 	our boss 	finds to do with her spare
time. 	Instead of?"
Harris 	never 	asked him about 	the 	items 	included 	in 	the
memo. 	Hatcher did not 	respond to the 	September 26 memo, 	he 	said,
because 	it 	did not 	ask 	for a 	response 	and Harris 	was 	not 	in the
shop 	from the 	beginning of 	September until 	October. 	He 	knew
Harris' 	observations 	about morning spots were not 	true 	as he 	knew
she did not 	come 	in 	so the memo was not 	factual.16 His 	excuse
for the 	late 	starts 	was 	that 	his bus battery was 	dead and he 	had
to have 	a 	jump 	start 	by the 	District 	mechanic. 	He 	did not 	tell
Harris or Robbins 	this excuse.
Hatcher 	testified that 	he 	never 	skipped 	the 	safety 	check,
and cleaned his 	bus 	"as 	needed." 	He 	"usually" 	puts up 	his
windows. 	The bus drivers often switched buses, 	he 	said.
Regarding 	the 	fire 	extinguisher 	incident 	on 	September 	20,
1994. 	Hatcher said he was not 	at work on that date, 	but had
submitted a 	doctors 	excuse 	and 	signed absence 	certificate.
Harris 	testified 	she 	saw 	the 	fire 	extinguisher on
September 20, 	and that Hatcher had been the 	last person to drive
the bus, 	on September 19.
The October 17, 	1994, 	Memo
Harris 	issued another memo on October 17, 	1994, 	regarding
bus 	check out, 	tardiness 	and routine paper work.
16Hatcher 	and other bus 	drivers 	complained 	that 	Harris 	never
arrived 	before 	7:00 	or 	7:10 	a.m.
18

In this memo, 	Harris noted that after the September 26,
1994, 	memo there was some improvement, 	but on October 6, 	1994,
Hatcher was more 	than ten minutes 	late 	leaving the yard.17
Harris 	set 	forth seven dates 	in August 	and September 	for
which absence 	slips 	needed to be 	completed and signed.18 She
noted there were more 	absences 	in October. 	She noted that 	to
date 	there were 	no weekly 	log 	sheets 	filled out 	since 	the
beginning of 	school.
-. . .
Harris 	noted the practice of 	the 	department 	to not 	fuel
buses 	with students 	on board unless 	in an emergency. 	She 	said
"[i]ndications 	. 	. 	. 	are that you often fuel with students on
board." 	Although fueling with diesel was 	acceptable, 	she
expected 	him 	to 	follow the 	practice 	of 	fueling without 	children
on board. 	Harris 	cited an October 6, 	1994, 	incident where he
could 	have 	fueled between 	his 	elementary and 	secondary 	run,
rather 	than 	after 	having picked up 	the 	high 	school 	students.
Harris 	noted that 	a 	sign directs 	drivers 	to 	fuel 	at 	the
nontaxable pumps, 	yet Hatcher's 	last 	two 	fueling slips 	indicated
he 	fueled at 	the 	taxable pumps.
Harris 	expected the 	items 	listed to be 	done 	no 	later 	than
October 	21 	and noted 	that 	failure 	to 	comply would result 	in
disciplinary action 	as prescribed by 	the 	classified 	contract.
17Harris wrote to Hatcher on October 6, 	1994, 	indicating that
Hatcher 	spoke 	to both Harris 	and Robbins 	as 	he was 	leaving 	for
his 	run that 	day. 	The note does not mention a tardy departure.
18Among the dates listed was September 20, 	1994, 	the date
Harris 	said 	she 	found 	the 	keys 	and 	fire 	extinguisher on Hatcher's
bus.
19

She wrote 	that 	the memo was 	going 	into his personnel 	file 	and he
had 	five 	days 	to 	respond.
Harris put 	the memo 	into Hatcher's mailbox.
Hatcher 	confirmed there 	were 	two blackboards 	in 	the 	drivers
building but 	he 	didn't pay much attention 	to 	the 	board.
Hatcher 	also 	admitted there 	was 	notice 	posted on 	the 	door 	that
reminded 	drivers 	to bring keys 	and 	fire 	extinguishers 	in.
Hatcher 	testified 	that 	the 	bus 	mechanic 	had 	told 	him 	the
fuel 	gauge 	on his bus 	was 	defective 	and he 	should not 	let 	the
tank get 	low. 	Somewhat 	incredibly, 	he 	did not 	tell 	Harris or
Robbins 	of 	the defect. 	It would have been the head mechanic's
job to tell 	them, 	he 	testified. 	The mechanic 	informed Hatcher of
the 	problem.19
At 	the 	formal 	hearing, 	Hatcher asked why would Robbins be
informed. 	Although he 	acknowledged that 	Robbins was 	the
dispatcher and the 	trainer, 	she was not 	the mechanic, 	he 	said.
This 	attitude 	seemed 	to permeate 	his 	relationship with Robbins
and Harris, 	and is 	further reflected in the 	absence of 	any
written responses 	by Hatcher to notices, 	where 	such notice 	that
matters were going 	into his personnel 	file were given.
The October 21, 	1994, 	Memo
Harris 	issued a 	revision of 	the October 17 	memo on
October 21, 	1994, 	as Hatcher had not picked up the 	first 	one 	in
his mail box. 	She expanded on the absences 	in October, 	from
19There 	is 	a 	standard 	form for drivers 	to 	signal 	malfunctions
on buses. 	Hatcher did not 	submit 	such a 	form.
20

October 13 	through October 21, 	the date of 	the memo. 	She noted
that 	Hatcher 	told her on October 	13 	that 	he was 	going to 	the
doctor, 	and then he 	told Robbins 	that 	the 	doctor 	said he 	needed
more 	time 	off. 	The 	District 	had not 	yet 	received the 	doctor's
verification 	of why and how 	long he 	would be 	off 	work. 	The 	memo
had a deadline 	of October 	28 	to 	comply.
There 	is 	some 	contradiction 	in 	the 	record 	about 	when Hatcher
returned to work. 	A doctor's 	note 	reads 	that 	he was 	to be 	absent
from the 	afternoon of October 	13 	until 	October 25, 	and that 	he
could return to work on October 	26. 	Hatcher testified he was
unsure of when he 	returned.20 In fact, 	later documentation
submitted by Hatcher 	(the 	logs 	described below) 	reflect 	that 	he
worked on both October 25 	and 26, 	and was 	absent 	on October 	27.
After he 	got 	the 	letter he 	questioned Robbins 	about 	the 	log
requirement.21 She 	told him there was 	an amendment 	to 	the 	bus
drivers' 	manual. 	He 	asked her 	for copy and she never got 	it 	to
him. 	The manual, 	he says, 	states bus drivers are exempt 	from log
requirements.
Hatcher 	testified that 	Harris 	did not 	talk 	to 	him about 	the
issues raised in the September 26, 	1994, 	memo before or after she
20Further undermining Hatcher's 	credibility 	is 	his 	defense
paper presented at 	a 	Skelly 	(Skelly v. 	State 	Personnel 	Board
(1975) 	15 Cal.3d 194 	[124 	Cal.Rptr. 	14]) 	hearing on his
suspension described below. 	Written within 	six weeks 	of 	the
October time period, 	the paper asserted that 	on October 	19,
Harris 	questioned Hatcher 	about 	the 	logs 	while 	passing 	through
the yard.
21Yet, 	in his 	statement 	submitted in the Skelly hearing
before Robison, 	he wrote 	that 	Robbins 	questioned him in 	late
September about 	the 	log 	sheet 	requirement.
21

issued 	it.22 He 	was 	on jury duty beginning September 	26 	until
October 3, 	1994.
Hatcher 	testified that 	Harris 	did not 	talk 	to 	him about 	the
issues 	in the October 21 memo before writing it.23
Hatcher 	admitted that 	he 	fueled his 	bus 	with 	children on
board and may have 	done 	it 	twice. 	The bus he drove 	is 	a diesel
bus 	and the 	fuel 	gauge 	is 	defective 	and his 	route 	is 	through the
country. 	The bus mechanic 	told him of 	the 	defect 	and he 	tried
not 	to drive 	the bus with less 	than half 	a tank of 	fuel.
Hatcher 	testified that before 	the October 	21 	memo he was 	not
aware 	of 	the nontaxable pump. 	They had added pumps, 	but 	he
didn't 	understand what 	was 	required. 	He 	had not 	noticed 	any
blackboard notices.
Hatcher didn't 	get 	the notice 	until 	after October 	27 	when he
returned to work. 	The deadline was October 28, 	one day later.
The 	October 	21 	Memo 	From Strong
On the 	same date of the 	second memo, 	October 21, 	Strong sent
to Hatcher, 	at his home, 	the Harris memo with a cover letter.
Strong's 	cover 	letter 	stated that 	it 	was Hatcher's
responsibility 	to 	inform 	the 	supervisor 	of 	any 	absence 	or 	illness
that 	would prevent 	him from carrying out 	assigned duties. 	If 	he
was under a doctor's 	care, 	he was 	to get 	a note 	from the doctor
22As noted, 	however, 	Hatcher wrote to Robison that Robbins
had questioned him 	in 	late 	September 	about 	submitting 	logs.
23Again, 	Hatcher wrote 	that 	Harris 	questioned him on
October 19, 	1994, 	about the logs. 	This 	is contrary to his
testimony about 	prior discussions with Harris, 	about 	issues
within the memos.
22

verifying 	the 	condition 	and anticipated date 	of 	return 	to work.
She 	noted 	they had no 	absence 	slips 	from him on 	file.
Strong advised Hatcher that under Article XXI, 	Discipline,
of 	the 	contract, 	the District was going to dock his pay effective
with the 	October 31 	warrant.24 Hatcher was 	invited to 	submit 	any
information 	to Harris 	immediately.
Smith 	said 	the 	memo 	did not 	meet 	the 	contract 	requirements
of 	discipline 	in that 	it 	states 	discipline 	is going 	to be 	imposed
but 	failed 	to 	set 	forth 	the 	right 	to 	hearing or other notice
requirements.
Section 21.5 	of 	the 	CBA provides 	for notice 	of 	imposition of
discipline 	including 	the 	right 	of 	appeal 	to 	the board of 	trustees
and 	for a hearing.
Strong testified, 	however, 	that payroll deductions do not
require 	Skelly hearings 	and the 	District 	practice 	in 	this
instance was 	consistent 	with other deductions.
The November 7. 	1994, 	Memo
Harris wrote another memo on November 7, 	1994. 	In this
memo, 	Harris wrote 	that 	after the October 21 	letter Hatcher
continued to not 	leave his 	bus 	in good order after the 	last 	run.
She 	stated that 	on October 	26 	his 	bus was 	not properly idled
24Strong 	cited 	sections 	21.7.11 	and 	21.7.14 	of 	the 	CBA. 	The
former 	section 	addresses 	unauthorized 	or unexcused 	or 	excessive
tardiness. 	The 	latter section addresses 	"abandonment" 	of
position. 	In the 	latter 	instance, 	Strong said she would always
attempt 	to 	secure 	the 	employee's 	explanation of 	the 	absence
before taking action, 	but not with Hatcher.
23

down, 	ten windows were 	left 	down and he did not 	return the 	fire
extinguisher.
Harris 	further wrote that on November 3 	and 4, 	1994,
Hatcher's 	bus 	was 	observed parked on Grant 	Street 	at
approximately 2:55 p.m. 	and 2:45 p.m., 	respectively. 	There was
no notice 	to 	the 	department 	of this parking at 	a 	location other
than at 	the 	terminal. 	She 	expected him to return 	the bus 	to 	the
yard at 	the 	end of 	any run. 	She noted there had been many
instances 	of 	his 	leaving 	the bus 	on 	the 	side of 	the 	shop 	instead
of 	returning it 	to the stall.
Harris 	further wrote that on November 3, 	1994, 	Hatcher made
"inappropriate 	use 	of 	the 	bus 	radio by transmitting 	a 	derogatory
remark about 	another driver over 	the 	air." 	He was 	expected to
cease 	such behavior.
The memo was 	copied to go to the personnel 	file. 	The memo
does 	not 	contain notice 	of Hatcher's 	right 	to respond 	in writing.
Nor was 	the memo 	signed or 	initialed.
Hatcher 	first 	saw the memo when he got 	a packet 	of 	charges
received on December 12, 	1994, 	described below. 	Hatcher
testified that 	no 	one 	discussed 	the 	alleged deficiencies 	listed
in the memo with him.
Hatcher 	testified that 	his 	bus 	was 	on Grant 	Street 	on both
days. 	His 	is 	the 	last bus 	to pick up 	students 	at 	the high
school. 	The 	junior high 	school 	did not 	have minimum day. 	He was
waiting 	for other buses 	to go 	to 	the 	junior high 	school 	and 	since
that 	location would not 	hold all 	buses 	he 	had to wait 	for his
24

slot. 	Both days were minimum days. 	Hatcher testified that 	he
was 	lying down 	in the bus. 	Harris personally saw the bus but 	did
not 	see Hatcher.
Harris 	testified 	she 	had 	complaints 	that 	Hatcher parked 	the
bus near his home.
Regarding the 	inappropriate use of 	the bus 	radio, 	she
testified Robbins 	was 	discussing 	a 	discipline problem with 	a
driver over the 	radio. 	Hatcher 	came 	on the 	radio 	and 	indicated
there were 	always 	problems with discipline 	on that 	driver's 	bus.
Hatcher had no 	need 	to use 	the 	radio 	and his manner 	of
interruption, 	which all 	drivers 	could hear, 	was derogatory to the
driver and embarrassed her. 	The 	driver almost 	quit, 	and was
shaken when 	she 	returned to 	the yard. 	It 	also became 	a 	safety
issue, 	said Harris.
At 	the 	hearing 	in this matter, 	Hatcher admitted making 	the
comment. 	His 	defense 	appears 	to be 	that bus drivers 	often 	listen
to 	chatter among 	drivers 	and other vehicles 	that 	use 	radios 	on
board vehicles. 	His 	failure 	to 	acknowledge 	any wrongdoing
undermines 	his 	credibility.
Harris 	testified that 	the 	failure 	to 	give 	Hatcher 	the
November 	7 memo before 	its 	inclusion 	in 	the December 	12 	dismissal
charges as, 	"Just a slip up. 	No big deal, 	the 	intent was to get
it 	to him."
The 	District 	Practices
Several 	witnesses 	including 	incumbent 	or 	former bus 	drivers
for 	the District, 	testified about 	the various 	responsibilities
25

which Hatcher was 	cited 	for not 	performing properly. 	A detailed
analysis would of 	necessity include possible bias, 	which may be
found 	in 	either because 	witnesses 	admittedly did not 	favor
Robbins 	as 	a 	supervisor, 	or because 	they had been aided by
Hatcher 	in 	connection with 	CSEA representation or otherwise.
The 	evidence 	shows 	that 	it 	is 	the 	responsibility of 	the bus
drivers 	to 	return their keys 	and 	fire 	extinguisher to 	the 	bus
shop at 	the 	end of 	each day's 	run. 	Windows 	are 	to be up and the
bus 	swept 	clean. 	Drivers 	are 	expected to perform a bus 	safety
check 	each morning before 	commencing the 	run. 	While 	there 	is
variation, 	drivers 	also are expected to 	complete 	a 	safety check,
including a 	special 	effort 	to check the brakes, 	requiring some
10 to 15- minutes.
As 	a general 	rule, 	drivers 	are prohibited 	from 	fueling a bus
with children 	on board. 	An exception was 	recognized 	for 	diesel
buses, 	in an emergency situation. 	However, 	the District
preferred 	that 	there 	be 	no 	exceptions 	for either gas 	or 	diesel
buses. 	A practice which commenced 	in the 	fall 	of 	1994 	was 	to
fuel 	buses 	at 	the newly installed nontaxable pump.
A 	longstanding practice 	required 	drivers 	to 	submit 	absence
slips 	to 	reflect 	time 	not 	worked. 	Hatcher was 	advised early on
to do this, 	and other drivers, 	in the fall of 1994, 	were also
given written 	instruction 	to 	complete 	absence 	slips.
Also 	started 	in 	the 	1994-95 	school 	year was 	the 	completion
of 	log sheets 	reflecting 	the hours worked 	for each week. 	This
26

requirement 	was 	announced at 	the 	in-service 	sessions 	in August 	of
1994, 	when Hatcher was not present.
It 	is 	likewise 	clear that 	individual bus 	drivers 	at various
times, 	or for various reasons, 	did not 	comply with these
expectations. 	Likewise, 	it is clear that, 	in individual cases,
no 	reprimands were 	imposed.
An example 	is bus driver Bruce Smith, 	who, 	in addition to
abbreviating the bus 	check, 	skipped 	four weeks 	of 	submitting
logs. 	According to Harris, 	he completed the logs 	in a timely
fashion, 	but 	had not 	submitted them upon 	completion.
The 	Suspension 	for 	Log Sheets
On November 17, 	1994, 	Robison, 	then interim superintendent,
issued a 	letter 	entitled 	"Disciplinary Action" 	to Hatcher.25 The
memo provided, 	in part:
There 	have 	been 	repeated 	offenses 	by you 	regarding
your tardiness 	to work, 	your unwillingness 	to
submit 	absence 	slips, 	your inability to 	follow
appropriate bus procedures, 	the 	inappropriate use
of radio equipment, 	and most 	importantly, 	the
continual 	refusal 	to 	submit 	logs. 	This 	has been
repeatedly 	called 	to your 	attention by your
supervisor, 	Andrea Harris. 	I would specifically
refer you to the 	letter of October 21, 	1994,
written by Loretta 	Petersen Strong. 	This 	failure
to provide 	the 	logs 	is 	a violation of Article
21.7.13 	of 	the 	California 	School 	Employees
Association, No. 	314, 	collective bargaining
agreement. 	An 	intentional persistent 	refusal 	to
obey the 	rules 	and regulations 	applicable 	to 	the
25On this 	same day, 	according to Hatcher, 	there was posted a
master 	composite 	consisting of 	a grid 	showing all 	drivers 	who 	had
and 	had not 	submitted 	log 	sheets 	by 	each week 	from 	the 	beginning
of 	the 	school 	year. 	The 	document 	facially shows 	Bruce 	Smith had
not 	filed 	logs 	for the month of October.
27

District 	and its 	employees 	is 	a 	cause 	for
discipline.
Because 	your refusal 	to 	complete 	required
highway patrol 	logs places 	the 	entire
Healdsburg 	Transportation 	System 	in 	jeopardy
of being placed on an 	"inactive 	status" 	by
the 	California Highway Patrol, 	thus 	denying
hundreds 	of 	children 	access 	to 	home-to-school
transportation, 	I 	consider this an emergency
situation. 	Under the provision of Article
21.8.3 	of 	the 	California 	School 	Employees
Association No. 	314 Agreement, 	I am placing
you on an un-paid 	suspension 	for 	a period of
ten 	(10) 	working days beginning November 21,
1994 	and ending December 6, 	1994. 	This
suspension will 	be 	lifted prior 	to 	the 	ten
days 	if 	all 	logs 	dating back to August 	30,
1994, 	are 	submitted and meet the approval 	of
your supervisor. 	Failure 	to submit 	the
required 	logs 	could 	result 	in your
termination 	from 	the 	Healdsburg Union High
School District.
Robison notified Hatcher of 	his 	right 	to 	appeal 	and 	right 	to
a hearing before 	the board. 	She 	also 	advised him that 	he 	could
meet 	with her within 	five 	days 	to present 	information 	and
possible 	alternative 	solutions. 	She 	also 	informed him that 	the
District 	intended 	to present 	further notice 	of 	discipline 	which
could 	include 	further 	suspension or dismissal.
Hatcher 	received the memo 	the 	next 	day.
Hatcher 	testified that 	after 	the 	September 	26 	and October 	21
memos 	regarding the bus 	logs 	requirement, 	he would pass Harris
and assert 	that bus drivers were 	exempt 	from 	such a 	requirement.
Harris would say that 	she would check 	it 	out. 	However, 	she never
rescinded the memos. 	He complained to Robbins 	in September, 	he
said. 	She 	told him there had been a revision to the 	rule, 	but
she 	did not 	have 	a 	copy.
28

Hatcher said the exemption is 	clear. 	I disagree. 	The 	state
regulations were 	changed in 1993, 	and operative 	the next year.
In essence, 	the 	log requirement was 	a District 	response 	to the
regulation 	change. 	Moreover Hatcher's 	position with 	regard 	to
Robbins 	further undermined his credibility. 	Because, 	he 	said, 	'
Robbins was 	not 	his 	supervisor he 	took 	issue 	that 	she 	had
responsibility 	for 	California Highway Patrol 	(CHP) 	requirements.
The regulations 	state, 	he said, 	that 	it 	is the responsibility of
the 	director of 	transportation. 	Robbins 	never told him that 	the
state 	required him to have bus 	logs. 	Yet 	as noted, 	documentation
presented at 	hearing by Hatcher 	reflect 	Robbins 	asked him 	in 	late
September about 	the 	logs. 	He 	told her about 	the 	exemption.
Hatcher's 	testimony on this point 	is 	inherently inconsistent. 	If
Robbins 	had no 	role 	in the 	enforcement 	of 	driver 	log
requirements, 	why would he 	insist 	that 	she provide 	him with
documentation 	of 	the 	requirement?
Hatcher was 	suspended a day and a half. 	He 	completed the
logs 	and turned them in the 	following Tuesday, 	and was 	allowed to
make the afternoon run on November 22, 	1994.26
Hatcher appealed the 	suspension. 	There was 	a 	Skelly hearing
on November 29, 	1994, 	regarding the 	suspension where Smith
represented 	Hatcher.27
26Harris 	conveyed the 	logs 	to 	Strong on November 	22 	with the
notation that they were 	"in order and complete 	. 	. 	. 	The only
question are 	the dates of October 25 	and 26, 	as a Doctor's note
indicates 	that 	he was 	off 	thru 	the 	26th of 	October."
•
27Hatcher's 	written 	statement 	(Charging Party Exhibit 	No. 	38)
in conjunction with this 	Skelly hearing, 	presents 	a clearer
29

On December 8, 	1994, 	Robison responded to the November 29,
1994, 	Skelly hearing. 	Robison sustained the 	suspension and
responded to 	inquires made by Hatcher during the 	hearing. 	She
noted 	that 	the 	CHP 	confirmed 	that 	drivers 	logs 	are 	required
notwithstanding 	an 	exemption 	for 	drivers 	driving within 	a
100-mile 	radius. 	She 	found that 	Hatcher had been given
sufficient 	verbal 	and written directions 	that 	logs 	were 	to be
filed and 	finally, 	that 	the 	transportation department's 	CHP
rating was 	satisfactory at 	the 	time.
Hatcher 	appealed to 	the 	board and a 	hearing was 	held on
January 20, 	1995. 	This will be described below.
Hatcher 	complained 	that 	he 	had never been 	given written
instructions 	to complete 	the 	logs, 	and he was never told it would
place 	the department 	in jeopardy. 	Nevertheless, 	it 	is 	clear that
both Robbins 	and Harris 	had verbally 	counseled 	him 	about 	doing
the 	logs, 	and that 	Harris had written him twice on the 	subject.
Hatcher acknowledged the 	"work now grieve 	later principle, "
but 	in this 	case 	he 	chose 	to 	refuse 	submission of 	logs 	until 	the
District 	proved 	to 	him that 	the 	logs 	were 	required.
picture 	than his 	testimony at 	the 	hearing on 	the 	unfair practice
complaints. 	There he 	stated, 	he was asked by Robbins 	in late
September about the logs, 	and again on October 19, 	1994, 	by
Harris, 	about the logs. 	He claimed the exemption. 	He said he
received a 	letter 	from Harris 	on October 	21 	asking 	about 	the
logs. 	He questioned Robbins on October 21 	about 	the 	revision to
the 	rule. 	He 	learned about 	a week later that 	the 	logs were 	a
carrier requirement. 	He 	said he 	then told Robbins what 	he 	had
learned and 	that 	he 	would be 	submitting 	the 	logs.
In fact, 	he did not 	submit them until November 22, 	1994,
after 	the 	notice 	of 	suspension had been 	served upon him.
30

. ..
Hatcher 	also 	took 	issue 	with Strong's 	interpretation of
section 	21.8.3 	of 	the 	CBA on 	the meaning of 	"emergency." 	He
contended the 	CBA reference 	to 	"harm" 	to 	the 	supervisor or 	fellow
employee 	means 	"physical 	harm."
As 	noted, 	section 21.8.3 	of 	the 	CBA provides 	for 	immediate
suspension when 	"the 	continued presence 	of 	the 	employee 	at 	work
may result 	in harm to the 	supervisor, 	another employee, 	staff 	or
students." 	The section, 	however, 	also goes on to provide that
any employee 	may be 	suspended 	immediately without 	pay 	for 	ten
days.
Harris 	testified 	that 	although 	the 	CHP 	evaluations 	of 	the
transportation department 	show a 	satisfactory rating, 	two 	CHP
representatives 	advised her 	that 	the 	District 	could be 	in danger
of 	losing 	its 	certification 	if 	it 	did not 	comply with the 	log
sheet 	requirement.
The December 12, 	1994, 	Dismissal Charges
On December 12, 	1994, 	Hatcher was meeting with Rich on a
grievance 	relating 	to 	his 	pay dock. 	Rich asked him what 	remedy
he wanted and Hatcher said 	"cease 	and desist." 	Rich replied
"maybe 	this will make 	it moot" 	and gave him a packet 	of papers.28
The 	packet 	of papers 	consisted of 	a 	cover memo 	from
Robison describing 	the 	recommendations 	of 	the 	director of
personnel 	and director of 	transportation 	that 	the 	board of
28At 	the 	end of 	the meeting, 	in the presence of 	his 	CSEA
representative, 	Rich told Hatcher that 	in all 	the years Hatcher
was with the District, 	the District did not 	feel 	he was 	a good
employee.
31

trustees 	dismiss 	Hatcher.29 The 	dismissal 	was 	supported by the
following:
The 	issues cited in the September 26, 	1994, 	memo from
Harris 	set 	forth above.
- - 	The 	alleged performance 	deficiencies 	set 	forth 	in 	the
October 21, 	1994, 	memo for stopping and fueling his bus with
students present.
A November 	7 	notification 	from his 	supervisor 	that 	he
had failed to 	secure 	the bus, 	that 	the bus was 	in an unauthorized
location on November 3 	and 4, 	and that 	he had made a derogatory-
remark about 	another bus 	driver.30
Noting 	that 	Hatcher 	had been 	subject 	to 	"prior 	disciplinary
action" 	the 	dismissal 	listed the 	following:
The April 	26, 	1993, 	letter from Machi 	(styled 	"letter
of 	reprimand") 	to Hatcher as 	a result of a verbal 	confrontation
with a teacher at 	the union elementary school.
- - 	The September 14, 	1993, 	memo, 	styled "letter of
reprimand" 	to 	Hatcher 	for allegedly 	failing 	to maintain 	required
in-service hours 	for his bus 	driver's 	license.31
29The 	notice 	also 	indicated what 	rights 	Hatcher had 	for
review of 	and/or 	settlement 	of 	the 	dismissal 	recommendation 	and
further 	that 	he was 	being placed on paid administrative 	leave,
effective December 12, 	1994, 	pending a board hearing.
30As 	noted, 	Hatcher had not been given this document before
December 12, 	1994.
31Strong testified at hearing that 	the April 	26, 	1993,
memo was a warning and the September 14, 	1993, 	memo was
"documentation" 	and neither constituted discipline. 	Yet, 	she
testified both were 	used as 	a basis 	for 	the 	recommendation 	to
terminate 	Hatcher.
32

The November 17, 	1994, 	letter regarding his 	failure to
turn 	in the bus 	logs 	and the 	suspension.
Hatcher did not 	respond 	in writing to the December 	12, 	1994,
charges, 	because, 	he said, 	he was 	"consulting lawyers."
Smith was 	critical 	of 	the 	charges 	as 	they include 	reference
to Hatcher's 	failure 	to maintain drivers 	log, 	which at 	the 	time
were under appeal 	to the board of 	trustees. 	The 	charges 	include
the Harris memo of November 7, 	1994, 	which was not given to
Hatcher before December 12, 	1994, 	and none of the charges
occurred after the October 28, 	1994, 	deadline given by Harris on
October 21.
Further, 	the director of 	transportation is 	listed as 	one of
the parties 	recommending Hatcher's 	dismissal. 	Section 21.3 	of
the 	CBA 	indicates 	the 	recommendation of 	the 	director of
transportation 	"shall be 	in writing." 	In 	fact, 	Harris 	did not
submit 	a written recommendation until March 3, 	1995.
The January 17, 	1995, 	Skelly Hearing
Robison notified Hatcher on January 4, 	1995, 	that 	there was
going to be a Skelly hearing on January 17, 	1995.
Smith was 	to represent Hatcher at 	the January 17, 	1995,
Skelly hearing. 	Smith was 	ill 	on that 	day and had his 	secretary
call 	and 	leave 	a message 	on two answering machines 	at 	the
District.
Neither 	Smith nor Hatcher 	attended 	the 	meeting.
Rich, 	who had been designated by Robison to preside 	at 	the
hearing of January 17, 	1995, 	wrote to Hatcher that day.
33

Rich 	stated he waited until 	11:25 	a.m. 	for Hatcher's
appearance. 	Rich received no 	telephone 	call 	and Hatcher did not
appear at 	the hearing. 	Rich then stated:
As a result, 	under the provisions of 	the CSEA
Agreement, 	you 	are 	hereby suspended without
pay pending your 	hearing before 	the 	Governing
Board on Friday, 	January 20, 	1995.
Smith 	testified 	there 	is 	no provision 	for 	this 	form of
discipline 	in the 	CBA. 	He 	and Hatcher both read the 	letter as
suspending Hatcher 	for 	failing 	to 	appear 	at 	the 	Skelly hearing.
The 	CBA does provide 	for a 	ten day 	suspension without 	pay,
but 	does 	not 	address 	an 	indefinite 	suspension without 	pay.
Hatcher attended a meeting on January 18, 	1995, 	with Strong.
She 	told him he was 	suspended because 	he 	did not 	attend the
Skelly hearing. 	He 	explained about 	the 	telephone messages 	and
she 	said 	"have 	your 	lawyer 	talk 	to my 	lawyer."
After January 20, 	1995, 	the District offered Hatcher,
through James Bertoli 	(Bertoli) 	an attorney in private practice,
another Skelly hearing set 	on February 1, 	1995.32 Smith
testified that 	he was 	aware 	that Bertoli, 	on behalf of Hatcher,
declined 	a 	second Skelly hearing.33 Rich was 	unable 	to 	say why,
if a 	second Skelly hearing was 	to be 	scheduled, 	the District
suspended Hatcher after January 17, 	1995.
32Lawrence Schoenke, 	the District's attorney, 	wrote to
Bertoli on January 27, 	1995, 	expressing willingness 	to reschedule
the 	Skellv hearing of 	January 17. 	He proposed a hearing date 	of
February 1, 	1995.
33Incredibly, 	Hatcher testified that 	he 	knew nothing about
the District's 	offer or of Bertoli's waiver, 	even though Smith
knew of both events.
34

Hatcher was 	inconsistent 	on the matter of 	a 	Skelly hearing.
At 	one point 	he 	said he did not 	ask 	for a Skellv hearing, 	and
then, 	on cross 	examination, 	he 	stated he did request 	the hearing.
The 	January 20 	Hearing
On January 19, 	1995, 	the District advised Hatcher that 	it
intended that at the January 20, 	1995, 	meeting, 	the board of
trustees 	would hear both 	the 	suspension 	appeal 	and 	the 	dismissal
charges. 	At 	that hearing, 	Smith was 	there to represent Hatcher
on the 	suspension appeal. 	Smith stated at 	the 	time 	that 	he did
not 	represent 	Hatcher on 	the 	dismissal 	matter 	and 	that 	Bertoli
was 	representing Hatcher on 	that 	issue.
The 	board granted a 	continuance 	of 	the 	dismissal 	hearing
during the 	hearing.
On March 7, 	1995, 	Bertoli wrote to Rich, 	by then interim
superintendent, 	regarding the 	suspension 	for failing to 	attend
the 	Skelly hearing of 	January 17. 	Bertoli 	demanded Hatcher's
reinstatement 	and back pay.
In August 	1995, 	Hatcher challenged the 	suspension with a
writ 	of mandate, 	contending the board was without power to
suspend Hatcher from January 17, 	1995. 	The matter is pending.
The Unexcused Absence Audit
Sometime 	in December 	1994, 	the 	administration determined to
review Hatcher's 	attendance 	records. 	Harris used Robbins'
calendar 	along with 	substitute 	slips 	indicating who 	substituted
on 	certain 	runs 	and 	compiled 	a 	two-year 	audit 	of 	Hatcher's
attendance. 	Harris 	said it 	took several 	days 	to do the 	audit.
35

She 	shared her 	concerns 	with Hatcher 	and he 	picked up 	several
errors. 	She had to repeat the 	audit.
On February 17, 	1995, 	Lois Olds 	(Olds), 	the administrative
assistant 	in the personnel 	department, 	sent Hatcher a cover memo
typical 	for material 	going into an employee's personnel 	file. 	-
The 	attachments 	consisted of 	audits 	of 	Hatcher's 	reported
and unreported absences 	for the 	1992-93 	and 	1993-94 	school 	years,
compiled by Harris. 	The 	documentation concluded, 	based upon the
audit, 	that 	Hatcher owed the District 	$2,374.05 	for hours paid
but 	not 	worked 	for 	the 	two years 	covered by the 	audit.
Hatcher 	testified he 	received 	this 	material 	when he 	got 	the
amended charges, 	on February 17, 	1995, 	described below. 	He went
to Olds' 	office on February 18 or 19, 	1995, 	and asked to see the
original 	material 	upon which her 	letter was 	based.
Olds 	said 	she 	did not 	have 	to 	talk 	to him. 	Hatcher 	sent 	a
letter to 	the 	superintendent 	complaining 	that 	Olds 	was 	not 	acting
in professional 	manner and was 	using 	abusive 	language 	towards
him.34 Hatcher got 	no 	response 	from the 	District.
Hatcher denied he 	asked Olds 	to 	interpret 	any provision of
the 	CBA. 	In the District's petition 	for a 	restraining order
against Hatcher 	(described below), 	Olds declared that 	he tried to
get 	her to 	interpret 	certain provisions 	of 	the 	contract. 	Hatcher
denied asking her any questions 	stating 	that 	she 	was 	a
34Olds was candid in her testimony that 	she, 	in effect, 	lost
her cool 	with Hatcher.
36

probationary employee 	that 	had 	just 	started with 	the 	District 	and
would have 	no 	knowledge 	of 	the 	CSEA agreement.35
The 	Amended 	Charge
On February 17, 	1995, 	Hatcher was 	issued an amended charge
by Rich, 	by this 	time, 	acting superintendent. 	The amendment
added two more 	accusations 	to 	the basis 	of 	the 	recommendation 	for
dismissal. 	The first was that 	in the November 22, 	1994,
compilation of 	log sheets 	for the period of August 	3 0 	to
November 	18, 	1994, 	Hatcher had listed working at 	the Healdsburg
Junior High School 	every workday 	from 	9:00 	a.m. 	to 	10:30 	a.m.
The 	amended charge 	alleged that, 	in 	fact, 	Hatcher rarely worked
during that 	time period. 	In addition, 	the amendment 	included the
absence 	slips 	audit 	revealing unauthorized absences 	in 	1992-93
and 1993-94, 	served officially on that 	same day.
Smith 	complained about 	the 	amended charge 	in 	that 	it
included the 	allegations 	set 	forth 	in Old's memo of 	that 	date,
which 	stated that 	the material 	is 	to go 	into the personnel 	file. . . .. ..
in ten days, 	yet was 	included in the amended charge.
Hatcher 	admitted 	that 	on 	the 	bus 	logs 	he 	submitted on
November 	22, 	1994, 	he 	stated he worked every day from 9:00 	a.m.
to 	10:30 	a.m. 	on duty days. 	His 	explanation again strains
credibility. 	He 	said he went 	to Robbins' 	office to double check
the 	dates. 	He 	said he explained to her the 	situation at 	the
junior high school, 	and asked her how to document 	that. 	She 	said
35Yet, 	Hatcher testified that 	he 	did ask her about 	provisions
of 	the 	CBA regarding who 	logged material 	into the personnel 	file.
37

just 	put 	in 	from 	9:00 	a.m. 	to 	10:30 	a.m., 	so he 	then took them to
Harris.36
Again, 	the amended charge 	indicates 	the director of
transportation 	is making a recommendation 	for dismissal, 	but 	as
of 	February 17, 	1995, 	there was no written recommendation by
Harris, 	as 	required by the 	CBA.
The 	Custodian 	Position Application
On March 7, 	1995, 	Hatcher wrote to Strong applying for the
custodian position at Mountain View High School. 	He was
originally at 	the 	high 	school 	but 	had 	transferred to 	the
Healdsburg Junior High school, 	and he was 	requesting his 	original
position 	in 	the 	application.
Hatcher 	said he 	spoke 	to 	Strong 	and 	felt 	the 	CBA gave 	him a
preference 	as 	a 	custodian 	to 	the position.
Strong 	said 	she 	did not 	get 	involved 	in the 	appointment 	for
this 	type of position. 	Harris was principal 	at Mountain View
High and 	she 	interviewed candidates. 	Hatcher was 	not 	considered
for the position as he was under suspension at 	the 	time.
Two days 	after he 	submitted the 	application, 	the District
expressed 	desire 	that 	Hatcher 	stay 	away 	from District 	property.
This 	action 	is 	described below.
36Robbins 	does 	not 	recall 	directing Hatcher to place 	the
hours 	as Hatcher did. 	I 	find Hatcher's 	inquiry to Robbins 	on
this point 	in direct 	contrast 	to his position that 	she was 	not
his 	supervisor with respect 	to other 	issues. 	It 	further strains
his 	credibility that 	so 	important 	an 	issue 	would be 	resolved 	in
such 	short 	fashion.
38

The 	District 	Property Ban
On March 9, 	1995, 	Strong wrote to Hatcher.37 She wrote 	she
had been 	informed 	that Hatcher was 	on District 	property at 	the
bus 	yard and made 	inappropriate 	and threatening comments 	to 	other
employees 	and 	"generally 	impeded 	the 	transaction 	of 	district
business." 	Hatcher was 	noticed that 	while 	he was 	on
administrative 	leave 	he was 	not 	to enter District 	property. 	With
the 	exception of 	letting off 	or picking up his 	child at 	a 	school
site, 	if 	he were 	to appear on District property or boarding a
school 	bus, 	the police would be 	called and he would be physically
removed.
Strong noted 	that 	Hatcher had 	retained Bertoli 	as 	counsel.
All 	communications were 	to be with him. 	Hatcher was 	advised to
immediately take 	heed of 	the notice.
The 	document 	was 	copied 	to 	several 	District 	administrators
and the 	CSEA co-presidents.
There 	is 	no 	evidence 	of 	other 	employees 	being excluded 	from
District property. 	However, 	Smith testified there was 	an
incident 	involving an employee where 	there 	is 	a 	threat 	of
violence 	but 	the 	employee 	resigned before 	the 	District 	obtained
the order.
Hatcher's 	testimony presented an 	innocent 	visit 	to 	the 	yard.
Yet 	in a written description of 	the 	event, 	Hatcher described his
37This 	letter 	to Hatcher 	followed by one 	day his 	having 	filed
the 	initial 	unfair practice 	charge 	against 	the District. 	There
is no evidence, 	however, 	that the District was aware of the
unfair practice on March 9, 	1995.
39

discussion with other 	drivers 	about 	his 	entitlement 	to 	a vacant
position with more 	hours. 	He wrote 	that 	he 	then confronted
Robbins, 	who was 	filing the position, 	contending that 	he was
entitled 	to 	the position 	if 	another driver with more 	seniority
did not 	opt 	for 	the position. 	They also 	discussed Hatcher's
efforts 	to get 	the 	custodial 	position 	at 	Mountain View and again
they had 	a 	difference 	of 	opinion on who 	should get 	the 	position.
Hatcher wrote 	that 	Robbins was 	not 	happy about 	his 	taking the
vacant 	position.
. .. . .
The 	Restraining 	Order
The 	District 	sought 	a 	temporary restraining order 	against
Hatcher on March 10, 	1995. 	The matter was addressed by the 	court
on March 14, 	1995. 	Based upon affidavits, 	the court 	issued a
temporary order. 	After hearing on May 1, 	1995, 	Hatcher was
enjoined 	from coming within 	10 	feet 	of 	any District 	school 	bus,
except 	to deliver or remove his 	child from the bus, 	or from
speaking 	to 	students 	or 	drivers 	while 	they were 	on District
buses.
The 	Board Dismissal 	Hearing
The 	board of 	trustees 	held 	the 	dismissal 	hearing on
April 24, 	June 12, 	22 arid 23, 	1995, 	and issued a decision on
June 	23, 	1995. 	Hatcher was 	represented by Bertoli.
The hearing was presided over by Paul Loya 	(Loya), 	an
attorney employed by the 	District 	for 	this purpose, 	who 	commenced
the 	hearing with 	the 	following 	comments 	on the 	proceedings.
40

Loya was 	designed by the 	board to make 	procedural 	decisions
in the 	course of 	the hearing. 	All 	board members were present 	at
the 	hearing. 	The 	District 	administration was 	represented by
counsel. 	Although Loya was acting as hearing officer, 	the board,
had the 	authority at 	anytime 	to 	overrule 	any decision 	the 	hearing
officer made, 	and would make 	the 	final 	decision with regard to
disposition of 	the matter.
The board's decision, 	dated June 23, 	1995, 	included findings
of 	fact 	that 	Hatcher was 	late 	for the 	Fitch Mountain pick up 	on
September 14 	and 15, 	1994.38 That 	from August 	30 	to September
26, 	1994, 	he 	failed more than ten times 	to do the 	required safety
check, 	and 	failed to 	clean his bus 	and close 	the windows 	on
numerous 	occasions. 	He 	failed to turn in the keys 	and 	fire
extinguisher at 	the 	end of 	the day prior to September 2 0 	and
failed to 	turn 	in absence 	slips 	for August 	26 	through August 	29,
and 	for two days 	in the week of 	September 19. 	He 	further 	failed
to turn 	in his 	K-run 	list 	in a 	timely 	fashion after more 	than one
request 	to do 	so. 	The board 	further 	found that 	during the period
of September 26 	to October 17, 	1994, 	Hatcher did not complete the
necessary absence 	slips 	for 	time 	off 	in August 	and September.
The board 	found he 	fueled a bus while 	students were 	on board,
contrary to 	the 	recommended practice 	of 	the District, 	and he
fueled at 	a 	taxable 	fuel 	pump when the bus was 	eligible 	for 	the
nontaxable pump. 	He 	continued to 	fail 	to do adequate bus 	safety
38Only one bus 	driver testified 	for Hatcher at 	this 	hearing.
That 	bus 	driver had been 	terminated 	from the 	District 	in 	fall
1995.
41

checks, 	failed to turn in his keys and fire extinguisher, 	and
failed to 	clean his 	bus 	and put 	up 	the windows 	on numerous
workdays.
The 	decision 	expressly 	stated 	that 	the 	board 	did not 	base
its 	action on the 	events 	described in this paragraph. 	The board
further 	found 	that 	Hatcher 	continued 	to not 	leave 	the 	bus 	in good
order by failing to 	idle down at 	the 	end of 	the day, 	failing to
close windows 	and 	failing to bring 	in 	the 	fire 	extinguisher.
This was 	after written confirmation of his misdeeds. 	On
October 26, 	1994, 	he 	failed to secure the bus and turn in the
keys 	and fire extinguisher. 	His bus was 	seen 	in an unauthorized
location on November 3 	and 4, 	1994. 	Hatcher also made a
derogatory remark 	about 	a 	fellow bus 	driver over 	the 	radio.
The 	board 	further 	found 	that 	Hatcher 	submitted 	log 	sheets 	on
November 22, 	1994, 	for the August 30 to November 18, 	1994,
period, 	in which he 	stated that 	he worked every workday 	from
9:00 	a.m. 	to 	10:30 	a.m. 	at 	the 	junior high school 	as
groundskeeper, 	but 	in fact, 	he performed those duties at other
times. 	Again, 	the board expressly stated that 	it 	did not 	rely on
this 	finding, 	as 	it was 	related to the prior suspension.
The 	board 	further 	found 	that 	Hatcher 	failed 	to 	file 	absence
certificates on numerous occasions 	in 1992-93, 	after December 12,
1992, 	and on many occasions 	in 1993-94.
The 	board also 	found that 	Hatcher had been 	subject 	to prior
disciplinary action, 	making reference to the April 26, 	1993,
letter 	from Machi. 	The 	letter was 	called a 	"letter of
42

reprimand." 	The board referred to the 	September 14, 	1993,
memorandum 	from Harris 	regarding the 	in-service 	hours. 	The 	board
further considered the November 17, 	1994, 	letter suspending
Hatcher 	for failing to turn in the 	logs. 	The board's 	decision
then noted 	that 	the 	disciplinary actions 	were 	considered 	only
with regard 	to mitigation or 	the 	level 	of 	penalty to be 	imposed.
The 	board 	further 	found 	that 	discipline was 	not 	initiated
because 	of 	union 	activities 	or 	filing workers 	compensation
claims.
The 	board then 	found that 	Hatcher was 	inefficient 	in
performance of duties; 	refused to do assigned work; 	careless 	in
performance 	of work; 	and had unauthorized absences.
The 	final 	decision of 	the board was 	that 	Hatcher was 	to be
suspended without pay through June 	23, 	1995, 	from his 	last 	day in
paid service 	(January 17). 	He was 	further demoted to
probationary 	standing 	from the 	end of 	the 	summer 	recess 	and was
directed 	to 	attend 	the 	drivers 	in-service 	at 	the 	beginning of 	the
next 	school year.
Smith 	testified that 	he 	had never heard of 	the 	board
involuntarily demoting a 	classified employee. 	He 	has 	seen 	"last
chance" 	agreements 	negotiated to that 	end. 	The 	CBA does 	not
provide 	for demotion to probationary status, 	but 	does provide 	for
demotion in class.
Smith has 	never heard of 	a 	classified employee 	being
disciplined for 	failure 	to maintain drivers 	logs, 	failure 	to
submit 	absence 	slips, 	failure 	to take 	fire extinguisher off bus,
43

parking bus between office 	and bus garage, 	inadequate 	time on bus
check outs, 	leaving keys 	in bus, 	not putting up windows, 	fueling
a 	diesel 	bus with students 	on board or 	fueling a bus 	at 	the
nontaxable 	rather than taxable 	fuel 	pump, 	or 	for 	interjecting a
comment 	in a 	radio 	conversation on 	the bus 	radio.
The 	CBA Provisions 	on Discipline
The parties' 	CBA, 	effective July of 1992 to June of 	1994, 	in
Article 	XXI 	defines 	discipline 	as 	a 	"personnel 	action which
results 	in the dismissal, 	demotion, 	suspension or involuntary
reassignment 	to 	another 	classification."
Recommendation 	for 	discipline 	comes 	from the 	immediate
supervisor to 	the 	director of personnel. 	The 	CBA also provides
that 	the 	director of personnel 	will 	investigate 	the 	charges 	and
make 	a 	recommendation to 	the 	superintendent.
Section 	6.1.2 	of 	the 	CBA provides:
Employees 	shall 	be provided with copies 	of
any derogatory written material 	ten 	(10)
workdays before 	it 	is placed in the
employee's personnel 	file. 	The 	employee
shall 	be 	given 	an opportunity during normal
working hours without 	loss 	of pay to 	initial
and date 	the material 	and to prepare 	a
written response 	to 	such material. 	The
written 	response 	shall 	be 	attached to 	the
material.
Section 	6.1.5 	provides:
Any person who places 	written material 	or
drafts written material 	for placement 	in an
employee's 	file 	shall 	sign the material 	and
signify the 	date 	on which 	such material 	was
drafted. 	Any written materials placed 	in a
personnel 	file 	shall 	indicate 	the 	date 	of
such placement.
44

Strong testified that 	the 	District 	adheres 	to progressive
discipline. 	Employees 	are 	first 	counseled verbally about 	alleged
performance 	deficiencies, 	then given written warning before
discipline 	is 	imposed.
From sundry documents placed into evidence, 	it 	appears 	that
a 	standard practice 	for placement 	of 	materials 	into 	an employee's
personnel 	file 	existed. 	A cover 	letter was placed on 	the
material 	which 	indicated the 	date 	the material 	was 	to be placed
into 	the 	file 	and that 	the 	employee 	had the 	right 	to 	review the
material 	and 	to 	attach written comments. 	The 	notice 	also
provided 	that 	the 	employee 	could review 	the 	material 	during
business 	hours 	and that 	the 	employee 	would be 	released 	from duty
for the 	review with no 	salary reduction. 	The 	cover memo 	also
noted who placed the 	document 	in the personnel 	file.
Regarding suspension of 	an employee, 	section 21.8.3 	of 	the
CBA provides:
Employees 	may be 	suspended 	immediately by
written 	order under 	emergency procedure 	when,
in the 	opinion of 	the 	Superintendent 	or
designee 	and 	the 	supervisor 	recommending
disciplinary action, 	the 	continued presence
of 	the 	employee 	at 	work may result 	in harm to
the supervisor, 	another employee, 	staff or
students. 	Any employee may be 	suspended
immediately, 	without pay, 	by written notice
from the 	Superintendent 	or his 	designee, 	for
a period not 	to exceed ten 	(10) 	working days.
An 	employee 	receiving 	an 	emergency 	suspension
shall 	be 	entitled to all 	rights 	contained
above.
ISSUES
The 	issue 	in this 	case 	is whether the actions 	of 	the
District when 	it 	(1) 	served upon Hatcher the 	recommendations 	for
45

dismissal on December 12, 	1994, 	(2) 	issued the written reprimands
of October 21, 	November 7 and November 17, 	1994, 	or 	(3) 	ordered
the 	suspension and demotion in June 	of 	1995, 	were 	in retaliation
for his 	participation 	in negotiations 	or grievance 	processing 	in
violation of 	the 	EERA?
CONCLUSIONS 	OF 	LAW
In order to prevail 	on a 	retaliatory adverse 	action charge,
the 	charging party must 	establish that 	the 	employee 	was 	engaged
in protected activity, 	the 	activities were known to the 	employer,
and 	that 	the 	employer 	took 	adverse 	action because 	of 	such
activity. 	(Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210 	(Novato).) 	Unlawful motivation is essential 	to charging
party's case. 	In the absence of direct 	evidence, 	an inference of
unlawful 	motivation may be 	drawn 	from the 	record as 	a whole, 	as
supported by 	circumstantial 	evidence. 	(Carlsbad Unified 	School
District 	(1979) 	PERB Decision No. 	89.) 	From Novato and a number
of 	cases 	following 	it, 	any of 	a host 	of 	circumstances may justify
an 	inference 	of 	unlawful 	motivation on the part 	of 	the 	employer.
Such circumstances 	include: 	the 	timing of 	the 	adverse 	action 	in
relation 	to 	the 	exercise 	of 	the protected activity 	(North
Sacramento School District 	(1982) 	PERB Decision No. 	264); 	the
employer's 	disparate 	treatment 	of 	the 	employee 	(State 	of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S); 	departure from established procedures or standards
(Santa Clara Unified School 	District 	(1979) 	PERB Decision No.
104); 	inconsistent 	or contradictory justification 	for its 	actions
46

(State of 	California 	(Department 	of 	Parks 	and Recreation) 	(1983)
PERB Decision No. 	328-S); 	or employer animosity towards union
activists 	(Cupertino Union Elementary School 	District 	(1986) 	PERB
Decision No. 572).
Once 	an inference 	is made, 	the burden of proof 	shifts 	to the
employer 	to 	establish that 	it 	would have 	taken 	the 	action
complained of, 	regardless 	of 	the employee's protected activities.
(Novato; 	Martori Brothers Distributors v. 	Agricultural Labor
Relations Board 	(1981) 	29 	Cal.3d 721 	[175 Cal.Rptr. 	626].) 	Once
employee misconduct 	is demonstrated, 	the 	employer's 	action,
. 	. 	. 	should not be deemed an unfair labor
practice 	unless 	the 	board determines 	that 	the
employee 	would have 	been 	retained 	"but 	for"
his 	union membership 	or his 	performance 	to
other protected activities. 	[Ibid.]
-
The 	record 	shows 	that 	Hatcher was 	engaged 	in protected
activity. 	It 	is well 	established that 	the 	filing of 	grievances
and unfair practice 	charges 	is protected activity. 	(North
Sacramento School District, 	supra, 	PERB Decision No. 	264.)
Hatcher 	filed grievances 	in 	1988 	and 1991, 	appeared 	in a
grievance 	on behalf 	of Capwell 	in 1992, 	and spoke 	to Harris 	about
the 	lack substitutes 	in September of 	1994. 	In addition, 	Hatcher
served on 	the 	CSEA negotiations 	team 	from 	1990 	through 	the 	1992
school 	year 	and made 	four 	appearances 	before 	the 	board of
trustees 	during that 	time. 	He 	also 	served as 	CSEA's 	chief
negotiator 	for some 	of 	that 	time. 	Aside 	from the 	discussion with
Harris 	in September of 1994, 	however, 	there 	is no indication that
Hatcher was 	active 	in grievance 	filing after 	1992. 	Hatcher
. . . .. .
47

testified that 	he 	continued to 	serve 	as 	steward 	in 	the
transportation department, 	but 	there 	is no evidence of 	any
activity between 	the 	Capwell 	matter 	in May of 	1992 	and 	the
September 	1994 	discussion with Harris.
The 	District 	was 	aware 	of 	the 	activities Hatcher undertook.
Strong 	sat 	across 	the 	table 	from Hatcher during negotiations 	and
served on 	two 	committees 	with him. 	She was 	involved 	in Hatcher's
1991 personal 	grievance 	and the 	Capwell 	grievance 	in 	1992.
Harris was 	involved in the 	1991 grievance, 	and Hatcher spoke 	to
her in September about 	the 	shortage of 	substitutes. 	Hatcher
spoke 	directly to 	the board of 	trustees 	in the 	1990-91 	and 	1991-
92 school years.
The 	District 	first 	argues 	that 	CSEA 	is 	collaterally estopped
from pursuing 	this 	matter here 	in 	that 	the 	dismissal 	hearing
before 	the 	board of 	trustees 	addressed 	the 	issue 	of 	retaliatory
action, 	relying on State of 	California 	(Department 	of
Developmental Disabilities) 	(1987) 	PERB Decision 619-S and
Kern County Office of Education 	(1987) 	PERB Decision No. 	630.
Specifically, 	the District 	argues 	that Hatcher was
represented by counsel, 	and had an opportunity to 	call 	and to
cross-examine witnesses. 	The board made 	a determination on the
merits, 	found Hatcher deficient 	in work performance, 	and further
that 	no 	reliance 	on his union 	related activities were made.
Collateral 	estoppel 	should 	therefore preclude 	PERB 	from re-
litigating the 	retaliatory allegation, 	according to 	the 	District.
48

CSEA argues 	that 	PERB's 	ruling 	in Trustees 	of 	the 	California
State University 	(1990) 	PERB Decision No. 	805b-H, 	compels the
conclusion 	that 	the 	discriminatory adverse 	action was 	not
properly before the board of trustees. 	In that case, 	PERB
refused 	to 	apply collateral 	estoppel 	principles 	to 	a 	ruling of
the State 	Personnel Board 	(SPB), 	where the latter proceeded to
decision with 	full 	knowledge 	that 	PERB was 	adjudicating 	the
discriminatory charge, 	a matter PERB held exclusively and
initially within 	its 	jurisdiction.
In addition, 	CSEA argues 	that 	the 	issues are not 	the 	same as
those 	before 	the 	board of 	trustees 	in 	that 	CSEA's 	rights were 	not
litigated. 	In State 	of 	California 	(Department 	of 	Corrections)
(1995) 	PERB Decision No. 	1104-S, 	PERB rejected a collateral
estoppel 	contention on the 	grounds 	that 	the 	employee
organization's 	interference 	claim was 	not 	litigated before 	the
SPB. 	In this case, 	CSEA has a separate claim of 	interference
with 	its 	rights 	as 	the exclusive 	representative.
Finally, 	CSEA attacks 	the nature 	of 	the 	termination hearing,
in 	that 	the presiding officer was 	not 	a 	"neutral 	and detached
judicial 	officer unaffiliated with any of 	the parties." 	Relying
on a 	concurring opinion 	in 	San Diego Unified 	School 	District
(1991) 	PERB Decision No. 	885, 	CSEA contends that the proceeding
before 	the 	board of 	trustees 	should not 	be 	given 	collateral
estoppel.
In State 	of 	California 	(Department 	of 	Developmental
Disabilities), 	supra, 	PERB Decision No. 	619-S, 	PERB adopted an
49

administrative 	law 	judge's 	analysis 	of 	collateral 	estoppel 	where
he 	stated:
Collateral 	estoppel 	traditionally has 	barred
relitigation of an issue 	if 	(1) 	the issue 	is
identical 	to one necessarily decided at 	a
previous proceeding; 	"(2) 	the previous
[proceeding] 	resulted in a 	final 	judgment 	on
the merits; 	and 	(3) 	the party against whom
collateral 	estoppel 	is 	asserted was a party
or 	in privity with a party at 	the prior
[proceeding]." 	[Citation.]
PERB predicated 	its 	position on 	this 	matter 	on 	People 	v.
Sims 	(1982) 	32 	Cal.3d 468 	[186 Cal.Rptr. 	77] 	(Sims) 	in which the
court cited United States v. 	Utah Const. 	Co. 	(1966) 	384 U.S. 	394
[16 	L.Ed.2d 642] 	where 	it was held that 	collateral 	estoppel 	might
be 	applied to 	decisions 	made 	by administrative 	agencies 	"[w]hen
an 	administrative 	agency 	is 	acting 	in a 	judicial 	capacity and
resolved 	disputed 	issues 	of 	fact 	properly before 	it 	which 	the
parties 	have 	had an adequate 	opportunity to 	litigate." 	In Sims
the 	court 	said:
To 	ascertain whether an agency acted 	"in a
judicial 	capacity," 	the 	federal 	courts have
looked to 	factors 	indicating that 	the
administrative 	proceedings 	and 	determination
possessed a 	"judicial 	character."
[Citations.]
In those 	cases 	where 	collateral 	estoppel 	has 	been 	considered
by PERB, 	the 	decision under review 	for 	application of 	the
doctrine, 	has 	involved a third party. 	(See 	San Ysidro School
District 	(1980) 	PERB Decision No. 	134; 	Kern County Office of
Education 	(1987) 	PERB Decision No. 	630 	and San Diego Unified
School District 	(1991) 	Perb Decision No. 	885 	(San Diego);
Trustees of 	the California State University, 	supra, 	PERB Decision
50

No. 	805b-H.) 	In San Diego, 	the PERB majority decision declined,
for lack of necessity, 	to address 	the 	question of whether a
hearing officer hired by the 	district 	to 	alone 	conduct 	a 	hearing
was quasi-judicial.
I 	decline 	to give collateral 	estoppel 	to the board of
trustees 	termination hearing because 	the 	board 	itself 	was 	the
presiding body at 	that 	hearing. 	The 	hearing officer 	served 	only
to assist 	the board in procedural decisions. 	Otherwise, 	the
board 	itself presided at 	the 	termination hearing. 	The board
itself, 	a party to the PERB proceeding was 	to make 	the 	final
decision 	regarding 	the 	adverse 	actions 	sought 	by the
administrative 	staff. 	Such a 	setting, 	where one of 	the parties
to the proceeding is presiding at the proceedings, 	does not
strike me 	as 	"judicial 	in character."
The District urges the 	complaints be dismissed because, 	it
contends, 	there 	is no connection between the District's 	action
against 	Hatcher and his protected activity. 	It 	contends 	the
board's 	action was 	independent 	of 	the 	administration 	and 	should
be 	dismissed under 	the 	authority of 	Konocti 	Unified School
District 	(1982) 	PERB Decision No. 	217 	(Konocti). 	The District
contends 	that 	the 	record 	in this 	case 	is 	devoid of 	any shifting
or contradictory reasons 	for the board's 	action. 	The District
further 	argues 	that 	there was 	no 	departure 	from 	standard
procedures 	in the 	actions 	taken by the 	District 	against 	Hatcher.
In Konocti, 	the hearing officer imputed union animus of 	the
school 	superintendent 	to 	the 	school 	board which had held a
51

hearing on 	the 	dismissal 	recommendation of 	the 	superintendent.
The 	PERB 	found 	that 	the 	board 	conducted 	an 	independent 	hearing
and rejected 	the 	superintendent's 	recommendation 	for 	dismissal.
Thus, 	the District 	argues 	here 	that 	since 	the board of 	trustees
held 	its 	own hearing 	and 	rejected the 	dismissal 	recommendation,
no 	imputation of 	animus 	can be 	imputed to 	the board.
The 	facts 	of 	Konocti 	are different 	than in this 	case.
First, 	the 	information relied upon by the board 	in this 	case
consisted 	solely 	of 	information 	gathered 	and 	supplied by District
administrators, 	Harris, 	Strong and Rich. 	Secondly, 	the same
basis 	for drawing an 	inference 	of 	unlawful 	motivation on 	the
administrators' 	part 	is 	reflected in the board's 	decision 	for
imposing discipline 	on Hatcher. 	The 	decision to 	impose
discipline 	on Hatcher 	relied on 	information 	that 	did not 	comply
with legal 	requirements, 	some 	of which had not 	been discussed
with Hatcher before 	being placed 	into written 	form 	(being 	late
and leaving keys 	and 	fire 	extinguisher on bus, 	pumping diesel
fuel with children on board or pumping at 	nontaxable 	tanks). 	In
addition, 	the board's 	decision expressly labeled two documents
given to Hatcher as prior discipline, 	when in fact, 	the
District's 	own personnel 	director 	testified 	that 	such documents
were not discipline. 	Thus, 	for the same reasons that Harris' 	and
Strong's 	actions might be 	suspect, 	so could the board of 	trustees
decision, 	and action, 	be suspect 	for unlawful motivation.
CSEA urges 	a 	finding of 	retaliatory adverse 	action 	imposed
52

upon Hatcher on the 	basis 	of 	timing. 	Shortly after discussing
with Harris 	the 	shortage of 	drivers 	in September of 	1994, 	Hatcher
received 	the 	September 26 	memo 	from Harris 	regarding his 	work
deficiencies. 	Then, 	while presenting a grievance 	on the pay dock
on December 12, 	1994, 	Hatcher was handed a package of documents
justifying a 	recommendation 	for his 	dismissal.39
The 	District 	discounts 	Hatcher's 	meeting with Harris 	in
September on 	the 	grounds 	that 	she 	agreed with him about 	the
shortage of drivers, 	and in fact, 	did secure a bus driver's
license 	so that 	she 	could take on a route. 	It 	contends 	the
December 12, 	1994, 	meeting could not have prompted the dismissal
recommendation 	because 	the 	charges 	had been prepared before 	that
date.
The 	District 	discounts 	Hatcher's 	activities 	as 	a negotiator
for CSEA, 	as that was two years before the District's 	action,
relying on Central 	Union High School 	District 	(1983) 	PERB
Decision No. 	324 	(one year between protected activity and adverse
action was 	one 	factor in declining to 	find unlawful motivation).
Here, 	however, 	I think CSEA is correct 	in focusing on the
September meeting between Hatcher 	and Harris 	as 	a 	reference
point.40 There 	is 	no 	dispute 	that 	Hatcher did speak 	to her about
39With regard to the December 12 	grievance meeting, 	Hatcher
had already been put 	on notice 	that 	the 	District 	was 	considering
further adverse 	action. 	Robison had told him so 	in 	the 	letter of
November 17, 	1994, 	when she advised him of 	the 	suspension for
failing to 	submit 	drivers 	logs.
'"'There 	is 	no 	evidence put 	forward by Hatcher that 	the
meeting with Harris preceded the memo of 	September 14, 	1993, 	from
Harris to Hatcher, 	regarding in-service time. 	Thus, 	no protected
53

a 	shortage 	of 	substitutes. 	That 	she 	agreed with him does 	not
mitigate 	his 	entitlement 	to 	speak 	to 	the point 	and not 	suffer
retaliation.
activity by Hatcher 	is 	shown 	to 	have 	occurred at 	any 	time
reasonably before the September 14, 	1993, 	memo, 	to justify an
inference of unlawful motivation 	for that memo, 	based upon
timing.
Timing 	is 	one 	factor 	that 	may be 	relied upon 	in drawing 	an
inference of unlawful motivation, 	but 	standing alone will 	not. . . . . . . . .
justify 	such an 	inference. 	(Moreland 	Elementary School 	District
(1982) 	PERB Decision No. 	227.)
CSEA advances 	further 	argument 	in 	support 	of 	the 	inference
of 	unlawful 	motivation 	in 	contending 	that 	the District 	failed 	to
follow the 	CBA requirement 	that 	the 	director of 	personnel
investigate 	the 	charges 	before making 	a 	recommendation 	of 	adverse
action. 	Here, 	contends CSEA, 	the fact that Strong, 	the director
of personnel, 	did not 	ever discuss with Hatcher any of 	the
alleged charges 	constitutes 	failure 	to 	investigate 	the 	charges.
Furthermore, 	Harris, 	the author of all the adverse memos to
Hatcher 	in the 	fall 	of 	1994 	regarding his bus 	driving
deficiencies, 	never discussed with Hatcher the problems 	before
issuing the memos. 	Finally, 	contends CSEA, 	Robbins did not
discuss 	with Hatcher the problems before 	the memos were 	issued.
It 	is 	true 	that 	Strong never consulted with Hatcher. 	She
relied upon Harris 	for all 	her information. 	However, 	there 	is no
evidence 	of 	an 	established practice 	that 	Strong made 	independent
investigations 	where 	a 	supervisor advanced performance 	problems.
54

While 	Strong did not 	appear to 	like Hatcher, 	and 	insisted that 	he
deal with the District 	through his 	attorney, 	there 	is no basis
for 	inferring anti-union animus 	on her part. 	There 	is 	no 	reason
to 	infer unlawful 	motivation 	from the 	failure 	of 	Strong 	to
conduct 	an 	independent 	investigation of 	Hatcher's 	poor 	job
performance.41 (See 	Riverside 	Unified 	School 	District 	(1987)
PERB Decision No. 	63 9.)
It 	is 	only partially true 	that 	Harris 	did not 	discuss
matters 	with Hatcher before 	issuing memos. 	Both Harris 	and
Robbins 	asked Hatcher about 	the bus 	logs, 	before Harris wrote
memos on the 	subject.
The 	District 	contends 	that 	there were no 	shortcomings 	in the
investigation by either Strong, 	relying on Harris, 	or Harris,
relying on Robbins.
This 	argument 	overlooks 	the 	fact 	that 	the 	evidence 	shows
that 	the 	District 	had a practice of progressive discipline,
meaning 	the 	supervisor would 	first 	speak with the 	employee 	about
a deficiency, 	before 	resorting to a written memo. 	Such practice
was not 	employed in this 	case. 	It 	does not 	appear that Harris
spoke 	to Hatcher about the 	fire extinguisher, 	keys, 	or the 	safety
check 	deficiencies 	before 	issuing him memos 	about 	those 	matters.
Nor did she 	speak 	to him about 	being late 	on September 	14 	and 	15,
1994, 	before 	she 	issued the memo. 	Nor did she 	speak to him about
41I 	did take note 	of 	Strong's 	failure 	to 	check with Hatcher
about 	the 	alleged 	"abandonment" 	of position as 	charged in her
October 21, 	1994, 	letter to him. 	However, 	it is noteworthy that
was 	not 	the 	only charge 	against 	Hatcher 	in that 	letter.
55

the 	fueling of 	the bus with children on board, 	or on the use of
the nontaxable pump. 	On the other hand, 	both Harris 	and Robbins
did 	speak 	to Hatcher 	about 	the 	bus 	logs 	and 	absence 	slips 	before
written memos were produced on those 	issues.
Another basis 	for drawing an 	inference 	of 	unlawful
motivation, 	contends 	CSEA, 	is the District's 	failure to follow
proper procedures 	with respect 	to various 	documents 	that 	were
placed into Hatcher's personnel 	file, 	without 	informing Hatcher
that 	such documents were 	going 	into his 	file 	or that 	he 	had a
right 	to 	respond to the memos. 	Hatcher was not 	informed that 	the
September 26 	memo was 	going 	into his 	file 	or that 	he 	had a 	right
to respond to 	it. 	The October 17 memo was placed into his 	file
but 	later replaced by the 	October 21 	memo.42
PERB has 	held that 	the 	fact 	that personnel 	practices were
not 	exemplary 	is 	evidence 	insufficient 	to 	raise 	inference 	union
activities motivated the District 	to 	take 	action. 	(San Diego
Unified School 	District 	(1991) 	PERB Decision No 	885 	(San Diego).)
CSEA further 	argues 	that 	the 	District 	gave 	Hatcher until
October 28, 	1994, 	to correct the earlier deficiencies, 	and then
proceeded to dock Hatcher's pay. 	This, 	contends 	CSEA, 	was
42The October 21 memo notes 	the 	existence of 	the October 	17
memo. 	Harris 	said 	she 	removed the 	October 	17 memo 	from Hatcher's
mail 	box when 	she noted he 	had been absent. 	Both the 	October 	17
and 21 memos 	make 	reference 	to 	the placement 	of 	the 	documents
into his 	file 	and his 	right 	to make a response within five days.
56

clearly disciplinary action yet, 	Hatcher was not 	given notice of
rights 	to 	a 	Skelly hearing or to appeal 	the 	decision.43
The District's 	failure to give Hatcher the November 7, 	1994,
memo before 	December 	12 	was 	also 	a 	failure 	to 	comply with
procedures.
CSEA attacks the November 17 suspension for failure to turn ..
in bus 	logs because 	it was based upon the 	"preposterous notion"
that 	such 	failure 	would place 	the 	transportation department 	in
jeopardy of being placed 	in 	"inactive 	status" 	by the 	CHP.
Robison's 	response 	to Hatcher's 	grievance 	stated 	that 	the
District's 	rating at 	that 	time was 	satisfactory, 	further
denigrating 	the 	seriousness 	of 	the 	absence 	of Hatcher's 	driver's
logs. 	Finally, 	the immediate suspension, 	contends CSEA, 	violates
the 	CBA as 	it 	limits 	immediate 	suspension to an emergency when
the 	"continued presence 	of 	the 	employee 	at 	work may result 	in
harm to the 	supervisor, 	another employee, 	staff or students."
I 	disagree with CSEA's 	analysis 	of 	the 	seriousness 	of
Hatcher's 	failure 	to 	turn 	in the bus 	logs 	and the 	limit 	CSEA
reads 	into 	the 	CBA on 	suspensions. 	Credible 	testimony of 	Harris
was 	that 	the 	logs were 	required and that 	failure 	to maintain the
. . .
43CSEA further argues 	that 	Harris 	testified at 	the
termination 	hearing 	that 	Hatcher 	had done 	nothing wrong by not
turning 	in his 	absence 	slips until 	after he 	returned to work on
October 26. 	Yet 	a 	fair reading of 	the District's 	concern when
Strong 	took 	the 	action was 	that 	Hatcher had 	failed 	to 	inform 	the
District 	of 	the 	reason of 	his 	absence 	or of 	an anticipated return
date, 	both factors unrelated to absence slips, 	and both matters
of 	reasonable 	concern to 	the 	employer.
57

logs 	could result 	in 	adverse 	effect 	on 	the 	transportation
department.
Furthermore, 	the 	CBA does provide 	for a ten-day suspension
that has 	no conditions attached. 	Here, 	Hatcher was 	suspended for
up to ten days, 	but 	the 	suspension was 	reduced to one and one-
half 	days when he 	turned the 	logs 	in to Harris.
CSEA further cites 	the 	inclusion of 	the November 7, 	1994,
memo 	in the dismissal 	charges, 	despite 	the 	fact 	that Hatcher had
not 	previously been given the memo, 	nor given an opportunity to
respond to it. 	In addition, 	the dismissal 	charges were brought
while Hatcher's 	appeal 	of 	the 	suspension 	for 	failure 	to 	submit
logs was 	still 	pending, 	and did not 	contain any conduct 	by
Hatcher after the deadline of October 28, 	1994, 	set by Harris 	in
the October 21, 	1994, 	memo. 	Thus, 	contends CSEA, 	Hatcher was
being 	disciplined 	for the 	same 	conduct 	for which he 	was
suspended.
The 	District, 	contends 	CSEA, 	placed Hatcher on an 	indefinite
unpaid suspension on January 17, 	1995, 	for failing to attend the
Skellv hearing set 	for that day. 	The 	CBA, 	contends CSEA, 	has no
provision giving 	the 	District 	such 	authority.
The District 	contends however, 	that provisions of 	the
Education Code 	and of 	the 	CBA necessarily render 	the 	District
empowered to 	suspend an employee without 	pay, 	pending the
termination 	hearing.
It 	is not 	the province of 	PERB to monitor or enforce
compliance with the Education Code. 	(See Los Angeles 	Community
58

College District 	(1987) 	PERB Decision No. 	623.) 	The District's
argument 	of 	interpretation of 	the 	CBA does 	appear 	to be
reasonable. 	That 	argument 	rests on the 	language 	of 	the 	CBA in
section 21.8.2, 	regarding revocation of 	suspension and
compensation 	for 	the period of 	suspension that 	was 	revoked. 	In
Lapp v. 	Superior Court of 	Placer County 	(1962) 	205 	C.A.2d 56 	[22
Cal.Rptr. 	83 9.] 	it was held that 	a school board has 	an inherent
power 	to 	suspend 	an 	employee 	without 	pay during 	investigation 	and
pending 	the 	determination of 	formal 	charges 	absent 	a provision 	in
the Education Code. 	Moreover, 	section 45113 	of 	the Education
Code 	empowers 	the 	school 	board 	to 	enact 	rules 	and 	regulations
governing the management 	of 	classified employees. 	That 	section
expressly provides:
Any 	employee 	designated 	as 	a permanent
employee 	shall 	be 	subject 	to disciplinary
action only 	for 	cause 	as 	prescribed by rule
or regulation of 	the governing board, 	but 	the
governing board's 	determination of 	the
sufficiency of 	the 	cause 	for disciplinary action
shall 	be 	conclusive.
Finally, 	in San Mateo City School District v. 	Public
Employment Relations Board 	(1983) 	33 	Cal.3d 850 	[191 	Cal.Rptr.
800], 	the California Supreme Court noted that Education Code
section 45113 	mandates certain procedures, 	protections 	and
entitlements 	for classified employees 	to be 	disciplined. 	The
59

intent of 	section 354044 is 	to preclude 	contractual 	agreements
which 	alter 	these 	statutory provisions.
CSEA cites the District's March 9, 	1995, 	exclusion of
Hatcher 	from the 	District 	property the 	day after he 	filed 	the
unfair practice 	charge was 	"extraordinary," 	and unprecedented.
As the District argues, 	however, 	there 	is no evidence that
the 	District was 	aware of 	the 	unfair practice 	charge 	having been
filed when 	it 	filed 	its petition 	for 	injunctive 	relief.
Finally, 	the board of 	trustees 	decision was 	improper and
unlawful, 	contends CSEA, 	because the board cited as 	"prior
discipline" 	imposed, 	the April 26, 	1993, 	letter and the
September 14, 	1993, 	memo 	from Harris 	regarding in-service hours
44Section 3540 	provides 	in relevant part:
It 	is 	the purpose of 	this 	chapter to promote
the 	improvement 	of personnel 	management 	and
employer-employee 	relations 	within 	the 	public
school 	systems 	in the 	State 	of 	California by
providing 	a 	uniform basis 	for 	recognizing 	the
right 	of 	public 	school 	employees 	to 	join
organizations of 	their own choice, 	to be
represented by 	the 	organizations 	in 	their
professional 	and 	employment 	relationships
with public 	school 	employers, 	to select one
employee 	organization 	as 	the 	exclusive
representative 	of 	the 	employees 	in an
appropriate unit, 	and to afford certificated
employees 	a voice 	in the 	formulation of
educational policy. 	This 	chapter shall 	not
supersede 	other provisions 	of 	the 	Education
Code 	and the 	rules 	and regulations 	of public
school 	employers 	which 	establish 	and 	regulate
tenure 	or a merit 	or 	civil 	service 	system or
which provide 	for other methods 	of
administering employer-employee 	relations, 	so
long as 	the 	rules 	and regulations 	or other
methods 	of 	the public 	school 	employer do not
conflict 	with 	lawful 	collective 	agreements.
60

required. 	Both, 	insist 	CSEA, 	were only warnings 	and did not
constitute 	discipline. 	CSEA cites 	Strong's 	testimony that
neither 	document 	constituted discipline 	within 	the 	meaning 	of 	the
CBA. 	Thus, 	the board improperly concluded the 	letters were prior
discipline 	imposed.
CSEA raises 	a number of 	other arguments 	in 	support 	of 	its
claim 	that 	District 	representatives 	harbored an unlawful 	motive.
I 	consider it 	unnecessary to address 	them all. 	Suffice 	it 	to 	say
that under Novato's 	analytical 	approach, 	the 	following
observations 	justify an 	inference 	of 	unlawful 	motivation 	in 	the
actions 	taken against Hatcher.
Despite 	a policy of progressive discipline, 	whereby
employees 	would 	first 	receive 	verbal 	notice 	of 	performance
problems, 	Harris 	did not 	discuss with Hatcher the matters
relating to bus 	check out, 	tardiness 	and paperwork, 	keys 	and 	fire
extinguishers and windows, 	as 	set 	forth 	in 	the 	September 	26,
1994, 	memo. 	In that memo she made a specific allegation
occurring on September 20, 	1994. 	She had not discussed with him
absence 	slips, 	bus 	logs nor the K-run list.
Thus, 	the 	District 	varied 	from standard personnel 	practices
in the advancement of the September 26, 	1994, 	memo.
Critical 	to 	the 	District's 	basis 	for 	imposing discipline 	on
Hatcher was this September 26, 	1994, 	memo from Harris. 	Yet 	the
memo 	did not 	inform Hatcher 	that 	the 	memo was 	going 	into 	his 	file
and that 	he 	had a 	right 	to 	respond to 	the 	information 	therein.
Thus, 	the 	board relied upon a document 	that 	did not 	conform to
61

the 	rules 	of procedure 	for placement 	of 	documents 	into 	the
personnel 	file.
Part 	and parcel 	to 	the 	administration's 	determination to
move 	forward towards Hatcher's dismissal 	is 	the November 7, 	1994,
memo. 	Again, 	Harris never discussed the 	incidents 	in this memo
with Hatcher, 	contrary to 	the progressive 	discipline policy.
Moreover, 	the memo which was 	never provided to Hatcher, 	prior to
going 	into his personnel 	file.
In reply briefs, 	CSEA cites Miller v. 	Chico Unified School
District 	(1979) 	24 Cal.3d 703, 	713 	[157 Cal.Rptr. 	72] 	(Chico)
for 	the 	proposition 	that 	the 	District 	could not 	rely on 	the
November 7, 	1994, 	memo because of 	failure to comply with
Education Code 	section 44031. 	The 	court 	held that 	an employee
must 	be 	permitted 	to 	review and 	comment 	on derogatory written
material 	compiled and maintained by a 	school 	district, 	even
though 	the 	material 	had not 	been previously placed 	in his
personnel 	file. 	Despite 	the 	absence of his 	right 	to exercise
that 	review and comment, 	the 	administration 	included the
November 7, 	1994, 	document as a basis for recommending dismissal.
This would 	seem to violate 	Chico. 	Even though the 	board 	itself
expressly disavowed the 	information in the November 	7, 	1994,
memo, 	the damage was already done.
Moreover, 	as noted, 	the September 26, 	1994, 	Harris to
Hatcher memo, 	did not provide 	for notice 	of going into his
personnel 	file 	nor of Hatcher's 	right 	to 	respond. 	The board did
rely upon 	this 	document 	for 	its 	findings 	and decision 	for 	the
62

tardiness on September 14 and 15, 	the September 2 0 	incident
regarding the 	keys 	and fire 	extinguisher, 	and 	failure 	to 	file
absence slips, 	log sheets and the K-run. 	Thus, 	the board of
trustees 	improperly considered the September 26, 	1994, 	Harris 	to
Hatcher memo 	as 	grounds 	for 	imposing discipline.
The 	decision of 	the 	board relied on 	two documents 	as
evidence of 	"prior" 	discipline, 	the April 	1993, 	letter from Machi
and the September 14, 	1993, 	letter from Harris regarding
Hatcher's 	in-service hours. 	Strong, 	the District director of
personnel, 	testified that 	neither document 	constituted
discipline.
I 	thus 	draw an 	inference 	of 	unlawful 	motivation 	from the
District's 	action 	against 	Hatcher 	in making recommendations 	for
his 	dismissal 	and the 	board's 	decision to 	suspend Hatcher 	for 	a
certain 	time period and to demote 	him to probationary status, 	on
the 	grounds 	that 	the 	District 	failed to 	comply with 	its 	own
procedures, 	i.e., 	failed to discuss performance problems with
Hatcher before 	issuing written memos 	(the 	September 26, 	1994 	and
November 7, 	1994, 	memos); 	failed to give Hatcher notice of right
to 	review and comment 	on documents 	going 	into his 	personnel 	file,
(the September 26, 	1994 and November 7, 	1994, 	memos); 	failure of
supervisor 	to put 	into writing 	the 	recommendation of 	dismissal
until 	long after 	service 	of 	the dismissal 	notice; 	and the
reliance 	upon the April 	1993 	Machi 	letter and the 	September 	14,
1993, 	memo regarding in-service hours 	as 	"prior reprimands" 	when
in 	fact 	neither 	constituted 	such 	reprimand.
63

The 	burden now 	shifts 	to 	the 	District 	to 	show or demonstrate
that 	it would have 	taken the action 	it 	took, 	despite Hatcher's
protected activity. 	(Novato.)
The December 12, 	1994, 	Dismissal Notice
The December 12, 	1994, 	dismissal recommendation was
predicated upon 	Hatcher's 	alleged deficiencies 	in 	the
September 26, 	October 21 and November 7, 	1994, 	memos.
The 	September 	26 	memo 	asserted 	that 	Hatcher had been 	late 	on
September 14 	and 15, 	1994. 	Hatcher admitted the charges at
hearing. 	His explanation, 	at hearing, 	was that his battery was
dead on both days. 	Astonishingly, 	Hatcher never told Robbins or
Harris what 	condition prevailed on those 	days. 	Until 	the 	board
of 	trustees hearing, 	Hatcher never asserted this defense. 	The
District, 	Harris or Strong, 	did not know of that defense at 	the
time 	the 	dismissal 	recommendation was 	delivered 	to Hatcher on
December 	12, 	1994. 	The memo also criticized Hatcher's bus
maintenance check up, 	bus cleanliness, 	windows 	in proper place
and returning fire 	extinguisher and bus 	keys. 	Specifically, 	the
fire 	extinguisher and keys were on the bus on September 20, 	1994.
Hatcher 	testified that 	he was 	not 	at 	work on September 	20,
1994.45 Harris' 	testimony was 	that 	she 	saw the 	fire 	extinguisher
and keys 	on board the bus on September 20, 	1994, 	and Hatcher had
been the 	last 	driver on the bus.
45Hatcher's own bus 	logs, 	submitted to Harris 	in November
1994, 	assert he was present on September 20, 	1994.
64

The 	September memo 	asserted 	that 	Hatcher 	had not 	submitted
absence 	slips 	for 	the week prior to 	the 	start 	of 	school 	and 	for
two days during the week of 	September 19, 	1994.
Finally, 	the memo asserted that 	Hatcher had not 	submitted
log sheets nor K-run student's 	lists. 	As 	the 	facts demonstrate,
Hatcher continued for 	some 	time 	to 	refuse 	to 	submit 	the 	log
sheets, 	and his 	only defense 	to the 	K-run list was 	that 	he 	didn't
understand 	the 	requirement.
Thus, 	with the 	exception of 	the dispute about bus
cleanliness 	and closing bus windows,46 the 	September 	26 	memo
listed performance 	problems 	with Hatcher 	that 	are 	factually 	true.
The 	second basis 	of 	the 	dismissal 	recommendation was 	the
October 	21 	memo 	from Strong regarding Hatcher's 	failure 	to 	submit
absence slips, 	file bus 	logs, 	fuel buses 	in accordance with the
recommended practice 	of 	the District, 	and that 	he 	fueled a bus 	at
a 	taxable pump.
Once 	again, 	Hatcher's defense 	to these 	assertions 	carries 	no
weight. 	He was at 	the time, 	refusing to submit the bus 	logs, 	he
admitted 	fueling the bus but, 	at 	hearing offered an excuse 	he
never advanced to Robbins, 	Harris or Strong.47 His defense 	to
fueling the bus 	at 	the 	taxable pump versus 	the 	nontaxable pump
was 	that 	he 	didn't 	understand the 	difference.
46And 	that 	dispute 	is 	only whether other employees 	received
adverse memos 	for 	such conduct.
47The 	excuse was 	that 	the bus 	fuel 	gauge was 	defective,
creating the potential 	for 	running out 	of 	gas.
65

Thus, 	the deficiencies 	relied upon by the District 	for the
October 21, 	1994, 	memo were true.
The 	courts 	and 	the National 	Labor Relations 	Board has 	long
recognized an employer's 	right 	to discharge 	employees 	for
performance 	deficiencies, 	notwithstanding that 	employee's
participation 	in protected activities. 	(San Diego.)
The 	final 	basis 	for the 	recommendation 	for discharge was 	the
November 7, 	1994, 	memo from Harris to Hatcher. 	This memo
asserted Hatcher 	continued 	to 	not 	leave 	his 	bus 	in good order,
that on October 26, 	the bus was not 	idled down, 	windows were 	left
down and he 	did not 	bring 	in the 	fire 	extinguisher.
Hatcher's 	defense to these 	charges was 	that 	he was not 	at
work on that 	day. 	Yet, 	his own bus 	log shows 	that 	he was present
on 	that 	day, 	and his 	doctor's 	note 	to 	the District 	authorized him
to return on October 26.
The 	memo 	further 	alleged 	that 	Hatcher was 	parked on Grant
Street on November 3 	and 4, 	1994, 	assertions that Hatcher
admitted. 	The memo 	also 	asserted that 	Hatcher parked his 	bus 	in
the 	wrong place 	at 	the bus yard. 	Hatcher disputed that 	he was
the 	only one who did this, 	not 	that 	he did not park his bus where
charged.
Finally, 	the memo described the 	radio 	incident 	where Hatcher
interrupted 	the 	conversation between 	a bus 	driver 	and 	the 	bus
dispatcher 	and made 	a 	derogatory remark 	about 	the 	bus 	driver.
Hatcher 	admitted the 	incident.
66

Thus, 	in summary, 	the 	factual basis 	for the December 12,
1994, 	dismissal recommendation was, 	for the most part, 	true.
The December 12, 	1994, 	statement 	also referred to the 	"prior
discipline" 	citing two documents 	that were 	in 	fact not
discipline. 	While 	that 	error contributes 	to an 	inference 	of
unlawful motivation, 	it does not 	itself, 	denigrate 	from the
factual 	deficiencies 	in Hatcher's performance 	set 	forth as 	the
basis 	for 	recommending termination.
The 	discussion relating to 	the 	December 12 	dismissal 	charges
covered the 	October 	21 	and November 	7 	memos 	and need not 	be
repeated here.
The 	complaint 	alleged that 	the 	November 	17 	reprimand was 	in
violation of Hatcher's rights. 	The November 17, 	1994, 	reprimand
was 	the 	suspension 	for failure 	to 	submit 	drivers 	logs. 	Hatcher
refused to submit 	those 	logs, 	contending he was 	exempt. 	Aside
from evidence 	showing 	that 	bus 	driver 	Smith missed one 	month of
logs48 after having filed them for some months, 	the 	record shows
that 	all 	other drivers were 	filing 	the 	driver logs.
Hatcher's 	own perception of 	how 	little 	influence 	his 	failure
to 	file 	drivers 	logs 	on the 	department's 	good standing does 	not
mitigate 	against 	Harris' 	testimony that 	she 	had been told of 	the
possible 	adverse 	action 	of 	noncompliance with the 	District's 	own
requirement, 	the filing of logs.
48Harris 	credibly testified 	that 	bus 	driver 	Smith had
prepared the 	logs, 	but 	had 	failed to 	timely file 	them.
67

According to Harris, 	the 	log requirement was 	announced at
the August 	in-service 	sessions. 	Hatcher was present 	only 	for the
bidding portion of 	the 	in-service 	sessions. 	Robbins 	asked
Hatcher 	for the 	logs 	in September. 	Harris wrote 	to him expressly
about 	the 	logs 	on September 26, 	1994. 	Harris asked him about 	the
logs on October 19, 	1994. 	She again wrote to him on October 21
about 	the 	logs. 	Although he may have been absent 	until 	as 	late
at October 26, 	1994,49 and may not have gotten the October 21
memo until 	October 27, 	he 	still 	did not 	complete 	the 	logs 	and
turn them in. 	From September until 	October 28, 	he 	had been asked
four times, 	twice 	in writing, 	for the bus 	logs. 	Despite his
understanding of 	the 	"work now and grieve 	later" 	concept, 	Hatcher
defied the 	requests 	for the bus 	logs. 	Even 	though he 	had been
told by CHP 	representatives 	in 	late 	October or early November
that 	the 	logs might be a 	carrier requirement, 	he did not 	complete
and 	file 	the 	logs 	until 	the District 	took 	the 	action of
suspending him on November 	17.
Hatcher's 	refusal, 	based upon his understanding of 	the 	law,
one 	that 	had been changed 	from the previous 	year, 	may have
justified 	filing a grievance 	on the 	issue, 	but 	he 	should have
complied with the 	requirement 	in the 	interim. 	Even if he did not
know of 	the 	requirement until 	September 	19, 	when Robbins 	asked
him about 	the 	form, 	he refused then, 	and even after Harris wrote
him on September 26, 	1994, 	he continued to refuse. 	Even after
49Hatcher's 	own logs 	show he was on duty October 	19, 	20 	and
21, 1994.
68

Harris 	asked him about 	the 	forms 	in October, 	he 	refused.
Finally, 	even after Harris wrote to him in the October 21, 	1994,
memo, 	he 	still 	refused to complete 	the 	forms. 	No one else 	in the
department 	refused to complete 	the 	form as was 	required. 	Even
Smith 	filled out 	forms 	from the beginning of 	the 	school 	year, 	and
missed 	just 	four weeks 	in October. 	He 	submitted them when asked.
Hatcher's blatant refusal 	in light of 	four requests, 	two 	in
writing, 	to submit 	the driver logs, 	was reasonable grounds 	for
the 	District 	taking the 	action 	it 	did. 	Insubordination may be
met 	with discipline, 	notwithstanding protected 	activity.
(San Diego.) 	I 	conclude 	the District would have 	issued the
November 17, 	1994, 	memo, 	notwithstanding Hatcher's protected
activity.
The 	June 	1995 	Suspension and Demotion
The 	board of 	trustees 	declined 	to 	dismiss 	Hatcher 	as
recommended by the 	administration, 	but 	rather 	suspended Hatcher
from January 17, 	1995, 	to the end of the 	school year. 	The board
further 	demoted Hatcher 	to probationary 	status 	for 	the 	oncoming
school year.
The 	board's 	action was 	predicated upon a 	summary 	finding
that Hatcher was 	inefficient 	in performance of 	duties, 	refused to
do 	assigned work, 	careless 	in performance 	of work and had
unauthorized absences. 	These 	findings 	were predicated upon
specific 	findings 	of 	his being 	late 	for runs 	on September 	14
and 15, 	1994, 	failure to do safety checks, 	bus cleaning and
window closing. 	Further, 	that 	he 	had failed to turn 	in keys 	and
69

fire 	extinguisher at 	the 	end of 	the 	day prior 	to 	September 20,
1994. 	In addition, 	Hatcher did not 	complete absence 	slips 	for
August 	and September, 	fueled a bus with students 	on board and
fueled at 	a taxable pump.
Aside 	from the 	issues 	disputed by Hatcher of 	safety checks,
bus 	cleaning 	and window closing,50 the 	grounds 	relied upon by the
board of 	trustees were 	true.
It 	is 	concluded that Whitehurst's 	leave and Harris'
assumption of 	greater 	supervisorial 	role 	over Hatcher, 	resulted
in a close monitoring of Hatcher's 	job performance. 	This 	close
monitoring 	commenced 	in early September 	1994 	when Harris 	reminded
Hatcher about 	the 	in-service 	requirements. 	Harris 	had 	just
commenced 	the 	bus 	driver 	supervisorial 	role 	without 	Whitehurst.
That 	memo preceded Hatcher's 	conversation with Harris 	about 	the
shortage 	of 	substitutes. 	It 	followed a 	long period of 	time 	in
which Hatcher was 	not 	engaged 	in protected activity.
Consistent with this 	change 	in management 	style, 	the memos
that 	followed were 	based 	largely on events 	that 	did 	in 	fact
occur. 	Some of 	the 	deficiencies noted were of 	the 	type 	about
which 	the 	District 	had expressed concern 	to Hatcher prior 	to 	his
becoming a 	job 	steward, 	or on the negotiating team. 	These
concerns were 	about being late, 	not notifying the 	employer about
absences, 	and completion of absence slips.
50Recall 	that 	only one 	other bus 	driver testified at 	the
board of 	trustees hearing, 	unlike 	the 	several who testified at
the 	formal 	hearing 	in this 	case.
70

The 	District 	administrators 	failed 	to 	comply with District
procedures 	in processing documents. 	The District 	administrators
and the board of 	trustees 	labeled certain memos 	as 	letters 	of
reprimand when 	in 	fact 	they were not 	reprimands.
Despite 	these 	errors, 	the board's underlying basis 	for
taking 	action 	against 	Hatcher was 	its 	finding 	that 	Hatcher was
inefficient 	in performance 	of 	duties, 	had refused to do assigned
work, 	was 	careless 	in assigned work 	and had taken unauthorized
absences. 	As 	the 	foregoing analysis demonstrates, 	the
accusations were 	for the most part 	true. 	Hatcher was 	late on
certain occasions, 	left 	his 	keys 	and fire 	extinguisher on the
bus, 	fueled buses 	with children on board and had pumped 	fuel 	at 	a
taxable pump. 	He had refused to file out 	the bus 	logs.51 It was
further true 	that 	he had unauthorized absences. 	Thus, 	the
reasons 	advanced by the 	District 	for 	imposing discipline 	were 	not
pretexual.
I 	conclude 	that 	the 	administrators 	and the 	board of 	trustees
would have 	taken the 	action they did, 	despite Hatcher's
engagement 	in protected activity. 	Accordingly, 	the 	complaint 	in
SF-CE-1774 	should be 	dismissed. 	As 	there was no unfair practice
committed by the District 	against 	Hatcher, 	there 	could be 	no
unfair practice committed against 	CSEA. 	Thus, 	the 	complaint 	in
SF-CE-1818 	should 	likewise 	be 	dismissed.
51The 	board decision 	considered 	the 	logs 	incident 	only 	for
the purpose 	of 	imposing discipline. 	Obviously the 	one 	and one-
half 	day suspension was 	in fact, 	"prior discipline."
71

PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law and the 	entire 	record 	in this matter, 	unfair practice 	charges
SF-CE-1774, 	Russell Hatcher v. 	Healdsburg Union High School
District, 	and SF-CE-1818, 	California School Employees Association
& 	Its Healdsburg Chapter No. 	314 	v. 	Healdsburg Union High School
District 	and 	companion complaints 	are 	hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
20 	days 	of 	service 	of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually received before 	the 	close 	of 	business 	(5:00 	p.m.) 	on the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the 	last 	day set 	for 	filing 	. . . " 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must 	be 	served
concurrently with 	its 	filing upon each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each 	copy served on 	a party or
72

filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Gary M. Gallery,
Administrative Law Judge