Pittsburg Unified School District (PERB 0047E)

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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
In 	the Matter of:
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION,
PITTSBURG CHAPTER 	#44, 	;
Charging 	Party,
vs.
PITTSBURG 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-52
PERB 	Decision No.47
February 10, 	1978
Appearances: 	Robert L. 	Blake, 	Attorney, 	for California School
Employees Association, 	Pittsburg Chapter 	#44; 	Margaret O'Donnell,
Attorney 	(Breon, 	Galgani and Godino), 	for Pittsburg Unified
School District.
Before Gonzales 	and Cossack Twohey, 	Members.
OPINION
On September 8, 	1977, Hearing Officer Ronald E. 	Blubaugh issued
the 	attached Recommended Decision. 	Thereafter, 	California School
Employees Association, 	Pittsburg Chapter #44 	(CSEA) 	filed
exceptions.
We have 	considered 	the 	record as 	a whole 	and 	the 	attached
Recommended Decision 	in 	light of 	the 	exceptions 	filed and decide

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to 	affirm the 	rulings, 	findings 	and 	conclusions 	of 	the 	Hearing
Officer 	and 	to 	adopt 	his 	Recommended Order.
B;{ 	Jerilou Cossack Twohey, 	Member 	Raymond J . 	Gonzales 	;ember ~r
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1we 	do 	not 	here 	conclude whether 	any of 	the 	statements 	contained
in 	the 	leaflet 	might 	qualify as 	"a 	deliberate 	intention 	to 	falsify"
or 	"a malevolent 	desire 	to 	injure" 	within 	the meaning 	of 	Linn v .
Plant Guard Workers, 	383 U . S . 	53, 	61 	LRRM 2345 	(1966). 	~~
We 	do 	agree 	with 	the 	Hearing 	Officer ' s 	conclusion 	that 	the
District 	rules 	pursuant 	to which 	the 	employees 	were 	disciplined were
promulgated 	for 	reasons 	unrelated 	to 	organizational 	activity.
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EDUCATIONAL EMPLOYMENT RELATIONS 	BOARD
OF THE 	STATE OF CALIFORNIA
In the Matter of
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION
PITTSBURG CHAPTER NUMBER 44,
Charging Party,
vs.
PITTSBURG UNIFIED 	SCHOOL DISTRICT,
Respondent.
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) 	Unfair Practice
Case No.SF-CE-52	)
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Appearances: 	Robert L. 	Blake, Attorney, 	for California School
Employees Association, 	Pittsburg Chapter No. 	44; 	Margaret
O'Donnell, Attorney (Breon, Galgani and Godino), 	for Pittsburg
Unified 	School District.
Before Ronald E. 	Blubaugh, 	Hearing Officer.
PROCEDURAL HISTORY
This 	case involves 	the disciplining of three
employees by a public 	school district for 	their role in
the preparation and distribution of a leaflet.
The leaflet at issue is a single sheet with a
drawing 	in the upper 	left front corner and text on both
the front and back sides. 	The text is written in a
gossipy style with teasing questions, 	some of which appear
to 	imply sexual activities 	involving various 	employees 	of
the Pittsburg Unified School District.1
On January 27, 	1977, 	fallowing the District's
initiation of discipline against the employees, 	the
California School Employees Association, 	Pittsburg
1 Hereafter, 	the Pittsburg Unified School District will be
referred to as 	the "District."
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Chapter No. 44 2/, filed an unfair practice 	charge 	against
the District. 	The charge 	alleges 	that 	the District
violated Government Code 	Sections 	3543.5(a) 	and 	(d).
According to CSEA, 	the District had 	(1) 	"threatened to
impose reprisals" 	against 	certain 	employees 	and had
"otherwise interfered with, 	restrained 	and coerced"
them because 	of 	their exercise 	of rights 	under 	the 	law
and had 	(2) 	"dominated and interfered with" 	CSEA's
administration of 	its 	own activities.
In its 	answer, 	the District admitted that
disciplinary action had been 	initiated 	against 	the 	employees
but 	denied 	that 	it had violated or was 	anticipating 	a
5violation of 	the 	Educational Employment 	Relations Act.
3/ Hereafter, the California School Employees Association,
Pittsburg Chapter No. 	44, 	will be referred to as 	the
"CSEA."
Government 	Code 	Section 	3543.5 reads 	as 	follows:
It 	shall be unlawful 	for a public 	school 	employer 	to:
(a) 	Impose or threaten to 	impose reprisals 	on
employees, 	to 	discriminate or threaten to 	discrim-
inate against 	employees, 	or otherwise to 	interfere
with, 	restrain, 	or coerce employees because of
their 	exercise 	of rights 	guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations rights 	guaranteed
to 	them by this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in good
faith with an 	exclusive 	representative.
(d) 	Dominate or 	interfere with 	the 	formation or
administration of any employee organization, 	or
contribute 	financial or other 	support 	to 	it, 	or
in any way 	encourage 	employees 	to join any organ-
ization in preference 	to 	another.
(e) 	Refuse 	to participate 	in good faith 	in the
impasse procedure 	set 	forth 	in Article 	9 	(commencing
with Section 3548).
4 The 	charge was 	filed prior 	to 	the 	time 	the 	disciplinary
action was 	taken against 	the employees.
5 Government 	Code 	Section 	3540 	et 	seq.
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In an effort 	to 	settle the 	dispute, 	an informal
conference with the parties was held on April 	8, 	1977, 	By
an attorney 	from the 	Educational 	Employment Relations 	Board.
However, 	no 	settlement was reached 	and 	a formal hearing was
conducted by an EERB hearing officer 	on May 11, 	1977, 	at
the 	EERB's 	San Francisco Regional 	Office.
LEGAL 	ISSUES
This 	case presents 	these 	legal 	issues:
1. 	Did the District 	impose reprisals, 	discriminate,
restrain 	or 	coerce 	employees because 	of 	their 	exercise 	of
rights 	guaranteed by the 	EERA, 	thereby violating Government
Code Section 3543. 5 (a)?
2. 	Did the District dominate 	or 	interfere with the
administration 	of 	the 	CSEA, 	thereby violating 	Government
Code 	Section 	3543.5(d)?
FINDINGS 	OF 	FACT
On or about October 	6, 	1976, 	the membership of
CSEA's 	Pittsburg 	chapter 	approved 	the preparation of 	a
negotiations bulletin. 	On December 	3, 	1976, 	three members
of 	the 	CSEA executive 	committee 	and 	a 	CSEA field represent-
ative met 	to write 	the bulletin. 	Those present were
John E. 	McGrath, 	then incumbent president of 	the chapter;
Ellen Ruth Collins, 	a chapter officer 	and member 	of the
negotiating committee; 	Anthony Costanza, 	a member of the
executive 	committee; 	and David R. 	Young, 	a CSEA employee
who 	is 	assigned generally to 	central 	and 	eastern Contra
Costa County. 	He was 	the 	only one 	of 	the 	four 	authors 	of
the 	leaflet who was not an employee 	of 	the District.
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The 	four 	testified 	that 	their 	purpose 	in writing
the 	leaflet was 	to 	provide 	a morale booster 	for members
who were 	dispirited at 	the 	length of negotiations.
Mr. 	Costanza 	said he had hoped 	the members would 	"read
this 	and 	laugh about 	it" 	and understand 	that negotiations
were 	difficult. 	No other negotiations 	bulletin was
produced 	for 	the membership 	even 	though 	in past 	years
there 	had been 	a practice 	of 	the negotiators 	making written
reports 	to the membership.
The 	four 	authors worked about 	three hours on 	their
leaflet. 	Mr. 	Young 	testified that 	document 	they ultimately
produced was 	an 	official 	publication of 	the 	CSEA because
the membership had authorized a bulletin, 	because he had
approved 	it 	and because 	the 	executive 	committee had approved
it. 	From the evidence, 	it would appear that 	the only
involvement by 	the 	executive 	committee was 	that 	three 	local
officers 	participated 	in writing 	the 	document. 	At 	least
two chapter 	officers 	-- Ratzi Aiello and Eva McDowell 	--
were not present when 	the 	leaflet was written.
Following the group's writing session, 	Ms. 	Collins
took 	the 	handwritten notes 	they had 	compiled 	to 	a 	typist
who made 	a finished copy. 	She 	gave 	the 	copy to Mr. 	McGrath
who 	took it 	to a printer on December 	6, 	1976. 	The next day,
Mr. 	McGrath picked up 	the printed copies 	at noon. 	He
testified that he 	gave 	the 	copies 	to Mr. 	Aiello 	and did not
see 	the 	leaflets 	again until 	later 	that 	afternoon when he
observed 	eight 	to 	ten 	copies 	on 	the 	table 	in 	the 	faculty
room at 	the District's 	Central Junior High 	School. 	He
gave a copy to Betty Brown, 	a teacher in the 	school, 	and a
clerk in the 	school 	took a copy from him. 	Mr. 	McGrath 	said
he 	then went 	home 	and had nothing more 	to 	do with the 	leaflets
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Ms. 	Collins 	said 	she 	obtained 	the printed copies
at 	about 4:30 p.m. 	on December 	7. 	She 	took 	them home with
her, 	stuffed 	them into 	intradistrict 	envelopes 	and addressed
them to various 	CSEA building representatives. 	On 	the
morning of December 	8, 	she 	took the 	envelopes with her 	to
her 	job 	in 	the 	District maintenance 	department 	and 	gave
them to 	various 	employees who were being 	dispatched 	to 	the
schools. 	She 	also made arrangements 	for 	employees 	at 	the
schools 	to 	receive 	the 	envelopes 	and place 	the 	leaflets 	in
the CSEA boxes 	at 	the 	schools.
The 	first 	District 	official 	to 	see 	the 	leaflet
was 	the 	superintendent, 	Bob 	Rothschild, 	who was 	given a
copy during the 	evening of December 	7 by Ms. 	Brown. 	The
next morning, 	the 	principal 	of Pittsburg High School brought
a 	copy of the 	leaflet 	to 	a District 	staff meeting.
Immediately 	thereafter, 	Superintendent Rothschild 	and
Deputy 	Superintendent 	Sal 	P. 	Cardinale 	initiated an 	investi-
gation 	about 	the 	source 	of 	the 	leaflet.
There 	is 	no 	identification of a 	source 	on 	the 	face
of the 	leaflet. 	There 	is 	one reference 	to a 	"CSEA person"
but 	there 	is 	no writing which 	identifies 	it 	as 	a publication
of CSEA. 	Because 	the 	source of the 	leaflet was not 	clear,
District officials were uncertain about which, 	if any, 	employee
organization was 	responsible. 	Officers were 	called 	in 	from the
CSEA, 	the Pittsburg Education Association, 	the Pittsburg
----
Federation of 	Teachers 	and a 	federation affiliate 	seeking 	to
represent paraprofessional 	employees. 	CSEA officers were 	the
first 	group 	contacted by 	the 	District because 	of 	the 	document's
reference 	to 	a 	"CSEA person."
The CSEA 	officers met 	twice 	on December 	8 with
the 	superintendent 	and 	the 	deputy 	superintendent. 	The
first meeting occurred early 	in the 	day, 	around 9 	a.m.
The CSEA officers 	called in were Mr. 	McGrath, 	Mr. 	Costanza,
Mr. Aiello, Ms. 	Collins, Ms. McDowell and Madelyn Cardinalli.
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Deputy Superintendent 	Cardinale 	told 	the group he was
very disturbed, 	that he was 	restraining himself, 	that 	there
might 	be 	legal 	implications 	from the 	leaflet 	and 	that 	he
wanted to know who was 	responsible 	for 	it. 	It 	is 	undisputed
that none 	of 	the 	employees 	acknowledged responsibility
during 	that 	first meeting and none 	of 	them told 	the 	District
the 	leaflet was 	a 	CSEA publication. 	The 	employees 	asked 	if they
could have 	a caucus. 	The District 	officials 	agreed and 	the
employees 	adjourned 	to 	a nearby 	coffee 	shop where 	they 	called
the CSEA representative, 	Mr. 	Young.
Following their call 	to him, 	Mr. 	Young arrived in
Pittsburg 	and joined 	the 	employees 	in 	their 	second meeting
of 	the 	day with 	the 	superintendent 	and 	deputy 	superintendent.
There 	is much 	conflict 	in 	the 	testimony about what happened
during 	that 	second meeting. 	Mr. 	Young testified 	that he
advised 	the District 	officials 	that 	CSEA 	took 	full 	respon-
sibility 	for 	the 	leaflet 	and 	that 	the blame 	could not 	be
placed on individual employees. 	Mr. 	McGrath's 	testimony
agreed with that of Mr. 	Young. 	However, 	Ms. 	McDowell and
Mr. 	Aiello 	testified that Mr. 	Young only 	told the District
that 	if CSEA or any of 	its 	members were 	involved, 	CSEA
would 	accept 	the 	responsibility and back 	the 	person up.
Mr. 	Cardinale 	testified that Mr. 	Young 	said only that 	CSEA
would 	support 	any 	"active" member who might have been 	involved.
The hearing officer resolves 	this 	conflict by
concluding 	that no 	CSEA representative made 	a 	clear, 	unequiv-
ocal 	admission 	of responsibility 	for 	the 	leaflet 	on 	December 	8.
The District 	continued 	its 	investigation 	on
December 	9 	by 	calling 	CSEA officers 	back 	alone 	for 	further
discussions. 	Some of the 	employees would answer no 	questions.
It 	is undisputed, 	however, 	that on December 9 Mr. 	Young told
the 	District 	that 	the 	leaflet had been produced by 	the 	CSEA.
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For a negotiations bulletin, 	the 	leaflet 	is an
unusual document. 	At 	the 	top 	left 	is 	a drawing of a
comical 	figure biting his hand. 	Beneath it are 	the words,
"IF I ONLY COULD TELL YOU." 	Testimony at 	the hearing
established 	that 	the 	drawing was 	a well-known 	illustration
in 	the District. 	It was prepared originally as 	a cloth
patch by Mr. 	Costanza and 	sold 	for 	$2 	a 	copy as 	a joke on
Mr. 	Aiello. 	According to the testimony, 	Mr. 	Aiello has a
habit 	when asked 	certain 	questions 	of biting his 	hand 	and
saying, 	"If 	I 	only could 	tell you." 	Numerous 	District
employees 	are 	familiar both with Mr. 	Aiello's habit and
the patch.
The 	leaflet 	is numbered at 	the 	top 	as 	"Volume 	1
Number 	1." 	Immediately below that begins 	a 	series 	of
questions. 	The 	first of these reads as 	follows:
What 	confidential 	secretary 	told
her boss 	"You can't 	see 	it 	cuz
its 	confidential!"
The 	second question reads:
What 	employee 	took a 	"go 	to 	hell
day" 	and went 	to 	a 	San Francisco
Hotel 	and ran 	into no 	one 	other
than his 	boss? 	What was 	the boss
doing 	there? ? ? ? ? ?
Testimony 	at 	the hearing 	established 	that
Mr. 	Costanza contributed that 	item to 	the 	leaflet. 	He
said the 	"boss" 	in question was 	the superintendent. 	The
superintendent 	testified 	that he knew the 	reference was 	to
him and 	resented 	the 	inference.
The 	third question reads:
What 	CSEA person while 	traveling
in far 	east 	county 	saw what 	deputy
superintendent 	engaged 	in 	intercourse
with more 	than 	one woman 	concurrently?
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Testimony 	established 	that 	the 	traveling 	CSEA
person was Mr. 	Young and 	that 	the District has 	only one
deputy superintendent, 	Mr. 	Cardinale. 	The item was written
by Mr. 	Young who 	testified that 	it referred to Mr. 	Cardinale.
According to Mr. 	Young, 	the 	item concerns 	an incident 	in the
spring of 1976 where Mr. 	Cardinale was 	speaking to a group
of employees 	in 	the Brentwood Elementary 	School 	District
about 	the EERA. 	Mr. 	Young further 	testified:
There were 	several women 	in the
audience, 	and following the main
discussion, 	you know, 	everybody--
there were people 	chatting with
groups--chatting 	in 	groups 	after
the 	thing had broken up, 	and
Mr. 	Cardinale was at that time,
well, 	speaking, 	and afterwards
speaking, 	discussing the 	issue
with more 	than 	two women 	concur-
rently. 	A very 	simple matter 	of
communication.
Mr. 	Young 	testified that 	the 	item was humorous
"as 	a 	double 	entendre" because 	"it 	could appear 	to 	say
more 	than 	it 	actually does." 	The 	testimony continued 	as
follows:
Q. 	What 	could 	it 	appear 	to 	say?
A. 	It 	could appear 	to 	refer to
anything 	somebody would 	care
to mention. 	Specifically, 	the
word "intercourse" was 	in there
without 	a modifier because 	it
could, 	in the eyes of the, 	in
the minds 	of some people 	I know,
be 	taken 	to mean 	something 	other
than it actually means.
Q. 	And what would 	that be?
A. 	Obviously 	there 	is 	some 	form of
sexual 	relationship 	taking place.
You know the answer as- well as
I do.
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Another 	item contained 	in 	the 	leaflet 	reads 	as
follows:
Whatever 	happened 	to 	Judy 	C?
Was 	she 	replaced by V,G, 	or
maybe 	V.D.?
Immediately 	following 	appears 	this 	entry;
What twosome at the Ad. 	Bldg, 	is
playing around? 	Watch it, 	you
might become 	a 	threesome!
Testimony 	at 	the hearing 	established 	that
Mr. 	Cardinale 	formerly had a 	secretary named Judy whose 	last
name 	then began with the 	letter 	"C." 	She 	subsequently
married and her married name begins 	with the 	letter 	"B,"
She 	still 	is 	employed in 	the District 	as 	a 	secretary.
Testimony 	further 	established 	that 	there 	is 	an 	administrative
secretary who works 	in 	the 	administration building with 	the
initials 	V.G. 	The hearing officer 	takes notice 	of 	the 	common
usage of the 	initials, 	"V.D." to mean venereal 	disease.
The next 	entry asks 	this 	question:
What aging, 	balding, 	boy scout,
hot 	shot 	is 	still 	looking for
a job 	for his 	title? 	Be prepared!
Testimony 	at 	the hearing 	established 	that 	the
reference was 	intended 	to 	apply 	to 	a particular District
employee 	and was 	understood 	to 	apply 	to 	that 	employee by
Mr. 	Cardinale.
A 	subsequent 	entry 	asks 	this 	question;
What 	employee 	requeste	' 	d a 	vanilla
rope 	and 	the 	secretary 	replied,
"It 	only comes 	in 	strawberry"?
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Testimony 	at 	the hearing 	established 	that 	the
incident was 	a 	reference 	to 	an 	event which occurred 	in 	the
maintenance 	office 	and was witnessed by 	about 	seven persons.
An employee had come 	into 	the 	office 	to 	ask 	for a manila
rope, 	a type of twine, 	but mispronounced "manila" as
"vanilla." 	The 	secretary involved was Ms. 	Collins.
The 	document next 	contains 	various 	references 	to
persons with the 	initials, 	"B.M." and "B.R." and conversa-
tions 	between 	them. 	Testimony 	at 	the hearing established
that 	the common 	interpretation 	of these 	initials was 	that
"B.M." 	referred to business manager 	and 	"B.R." 	referred to
Bob Rothschild, 	the superintendent.
The 	leaflet 	also 	contains 	a 	telephone number which
is 	one 	digit 	off from the 	telephone 	answering 	service number
for the 	District's 	substitute employees. 	Further, 	the 	leaflet
contains 	a 	section called "negotiations 	report" with a
series 	of 	cryptic 	comments 	having an unclear relationship
to negotiations. 	Down the left 	front 	side is 	the 	slogan
"Fables 	U Can Kopy," 	written 	in 	such 	a 	fashion 	to 	form an
easily 	recognizable 	acronym. 	No witness 	at 	the hearing
knew the 	origin of 	that 	inscription on 	the 	leaflet.
At 	the bottom of 	the 	reverse 	side 	of 	the 	leaflet
there 	is 	this 	statement:
NAMES 	IN THIS 	DOCUMENT ARE FICTITIOUS!
NAMES HAVE 	BEEN CHANGED 	TO PROTECT THE
GUILTY! 	ANY SIMILARITY BETWEEN PERSONS
LIVING OR DEAD 	IS 	PURELY 	FACT!!!! 	NO
NEWS 	IS 	GOOD NEWS! 	WE NEED YOUR NEWS!
DO UNTO OTHERS BEFORE THEY DO UNTO YOU!
Other than the 	single 	reference 	to 	a 	"CSEA person"
there 	is 	no 	identification 	on 	the document which 	indicates
its 	source. 	At the hearing, 	various 	explanations were
offered 	for 	this 	omission. 	Collectively, 	the CSEA witnesses
testified that 	a 	CSEA 	identification was 	left 	off because
there was no room for 	it, 	because the 	typist was new, 	because
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the typist forgot, 	because 	it was an oversight. 	The
District 	introduced various 	leaflets which CSEA has 	at
other 	times 	distributed 	and which 	clearly 	identify 	CSEA
as 	the 	source. 	The CSEA introduced various 	documents
distributed by 	the 	Pittsburg 	Teachers 	Association which
fail 	to 	explicitly identify the 	association 	as 	their 	source,
although the 	source 	is 	apparent 	from the 	context.
It 	is not 	clear how widely the 	leaflet was
distributed. 	One witness 	estimated 	that not more 	than
20 	copies were circulated. 	However, 	it also was 	estimated
that 	eight 	to 	ten were 	seen 	in a 	single 	school. 	Another
witness 	estimated 	that 	the 	leaflets 	got 	out 	to 	about 	four
schools 	before 	their 	circulation was 	halted. 	Both 	classi-
fied 	and 	certificated 	employees 	saw copies 	of 	the 	leaflet.
The 	disciplinary process 	got 	underway when 	the
District 	scheduled 	formal 	investigatory 	interviews 	on
January 	7, 	1977. 	Five employees were directed to appear
for 	separate 	interviews with the superintendent, 	the 	deputy
superintendent 	and 	the District's 	legal 	counsel. 	They were
advised by 	the District 	that 	they 	could have 	"a 	conferee 	or
legal 	representative" with 	them during 	the 	interviews.
Because Mr. 	Young and certain 	other 	CSEA 	staff members
were 	engaged 	in a strike 	against 	CSEA on 	that 	day, 	the
employees 	asked the District 	to 	delay the 	interviews. 	The
District 	declined the request. 	Mr. 	Young was not present
at 	the 	interviews.
On January 13, 	1977, 	the District superintendent
wrote to Mr. 	McGrath, 	to Mr. 	Costanza and to Ms. 	Collins
informing 	each 	of 	them of his 	intention 	to recommend 	to
the 	governing board 	that 	they 	each be 	suspended without
pay 	for 	30 	days.
-11-

The District rules provide various 	grounds 	for
suspension, 	demotion or dismissal. 	Mr. 	McGrath was
6/"The District's rule covering causes for suspension, demotion
or dismissal is 	set forth below:
SECTION 10.1 - CAUSES FOR SUSPENSION, 	DEMOTION, 	DISMISSAL
The tenure of every employee holding a position in the
classified service under the provisions 	of these rules
shall be during good behavior. 	Upon the approval of 	the
Board of Education any person may be dismissed, 	demoted
suspended or otherwise 	disciplined for 	any of the
following causes.
a. 	Incompetency or inefficiency.
b. 	Insubordination, 	including but not 	limited to,
refusal to do assigned work.
c. 	Carelessness 	or negligence in the performance of
duty or care of district property.
d. 	Discourteous, 	offensive or abusive conduct or
language.
e. 	Dishonesty.
f. 	Drinking on the job, 	or reporting for work while
intoxicated.
g. 	Addiction to use of narcotics.
i.(sic) 	Engaging in political activity during assigned
hours of employment.
j. 	Conviction of any crime involving moral 	turpitude.
k. 	Repeated and unexcused absence or 	tardiness.
1. 	Abuse of sick leave privileges.
m. 	Falsifying any information supplied to 	the 	school
district, 	including but not limited to, 	information
supplied on application forms, 	employment records
or any other district records.
n. 	Persistent violation or refusal 	to obey established
safety rules or regulations.
o. 	Offering anything of value or any service in
exchange 	for 	special 	treatment 	in connection with
the employee's job or employment; 	or accepting
anything of value 	or any service 	in exchange 	for
granting any special 	treatment 	to 	another employee
or 	to any member of the public.
p. 	Willful or persistent violations 	of the Education
Code or rules 	of the Board of Education.
q. 	Any willful 	failure of good conduct 	tending to
injure the public service.
r. 	Abandonment of position.
s. 	Advocating the overthrow of federal, 	state or
local government by force, 	violence or other
unlawful means.
t. 	Physical or mental 	incompetency. 	(If suspended,
the Board reserves 	the right 	to have 	the employee
examined and approved by the Medical 	doctor or
psychiatrist 	of its 	choice before 	allowing the
employee to return to his job.)
-12-

accused 	of:
1) 	Willful 	failure 	of good
conduct 	tending 	to 	injure
the 	public 	service;
2) 	Discourteous, 	offensive
or 	abusive 	conduct 	or
language;
3) 	Insubordination, 	including
but not 	limited 	to, 	refusal
to 	do 	assigned work;
4) 	Dishonesty.
The 	first 	two 	charges were based 	on Mr. 	McGrath's
alleged 	role 	in 	the 	preparation 	and 	distribution 	of 	the
leaflet. 	The third charge was based on Mr. 	McGrath's
refusal 	to 	answer 	questions 	about 	the 	leaflet 	and 	the
fourth charge was based on Mr. 	McGrath's 	alleged 	denial
that 	he had 	an 	envelope 	containing multiple 	copies 	of
the 	leaflet 	in his possession on December 	7. 	The
dishonesty 	charge 	ultimately was 	dropped.
Mr. 	Costanza was 	accused of insubordination.
The 	charge was 	based on his 	refusal 	to 	answer 	questions
about 	his 	role 	in preparation and 	distribution 	of 	the
leaflet.
Ms. 	Collins was 	accused of:
1) 	Willful 	failure of good
conduct 	tending 	to 	injure
the public 	service;
2) 	Discourteous, 	offensive
or 	abusive 	conduct 	or
language;
3) 	Insubordination, 	including
but not 	limited to, 	refusal
to 	do 	assigned work.
-13-

The first two 	charges were based on her
alleged participation 	in 	the preparation and distribution
of the leaflet. 	The third charge was based upon her
refusal 	to answer questions about her role 	in the 	incident
The Board of Education conducted a hearing on
the charges on February 1, 	1977, 	and subsequently ordered
a suspension of 30 	calendar days without pay for
Mr. 	McGrath, 	a suspension of 21 calendar days without
pay for Ms. 	Collins and a suspension of seven calendar
days without pay for Mr. 	Costanza.
The number 	of employees belonging to CSEA
made no unusual change in the months 	following the
disciplining of the three CSEA officers. 	In late 	1976
and early 1977, 	CSEA membership in the Pittsburg
chapter was as follows: 	September, 	241; October, 240;
November, 233; December 233; January, 229; February, 226;
and March, 223.
CSEA was 	involved in an election in the
Pittsburg District just 	after 	the distribution of the
leaflet. 	The EERB-conducted election for employees 	in
a paraprofessional unit 	of aides was held on December 	9,
1976, 	the day after the circulation of the leaflet.
According to records 	in the EERB case file, 	CSEA was
certified as 	the 	exclusive representative of employees
in this unit on December 16, 	1976.
-14-

CONCLUSIONS 	OF LAW
The EERA provides public school employees with the
"right to form, 	join and participate in the activities 	of
Temployee organizations." 	Additionally, 	the 	statute makes
it unlawful for a public school employer to impose or
threaten reprisals 	or to discriminate against employees
for 	their exercise of statutory rights. 	Whe
0
n the 	two
sections are applied in concert, 	it becomes unlawful for
a public 	school 	employer to punish 	school employees 	for
participating in the activities 	of an employee organization.
In this case, 	the initial question is whether these
employees were engaged in the activities of an employee
organization when they wrote 	and distributed 	the leaflet.
It is 	clear that after-the-fact, 	CSEA stepped forward and
claimed responsibility for the leaflet. 	What 	is 	important,
however, 	is whether the leaflet was 	intended to be a CSEA
publication at 	the time of its preparation and distribution.
The 	document was written by three CSEA officers
and a 	field representative employed by CSEA. 	Even 	though
the 	leaflet has 	only a passing reference 	to CSEA and its
contents 	show only a tenuous 	relationship to negotiations,
it 	seems 	likely that 	the 	employees 	involved intended that
their leaflet be a product of CSEA. 	The 	circumstances
surrounding the preparation of the document 	suggest that
the employees 	intended that 	it vent 	their frustration over
the 	slowness of negotiations. 	Probably, 	they chose not to
identify the source because of the nature of the 	leaflet's
contents. 	This 	failure of identification did not destroy
7 Government Code Section 3543 provides, 	in part, 	as follows
Public 	school employees 	shall have the right
to form, 	join and participate in the activities
of employee organizations 	of their own 	choosing
for the purpose of representation on all matters
of employer-employee relations....
8/
Government Code Section 3543.5(a), Footnote No. 	3, 	supra.
-15-

the origin of the 	leaflet as 	the product of CSEA officers
who 	apparently believed it would further 	the purposes 	of
their organization.
However, 	the. document's CSEA origin provides no
blanket immunity to the authors of its 	contents. 	Employees
may be punished for improper activities. 	Precedent from
the NLRB and the federal courts makes 	this 	clear.
The National Labor Relations Act has never been
a 	shield to permit 	employees 	to 	engage 	in whatever kind of
conduct 	they desire in total 	disregard of the rights 	of
the employer. 	From the beginning, 	the United States 	Supreme
Court has held that employers may discipline employees 	for
9many reasons without violating the Act. 	Ultimately, 	the
federal 	law was 	specifically amended to prevent 	the NLRB
from ordering the reinstatement 	of an employee who was
disciplined for cause. 10
9
In NLRB v. 	Jones & Laugh1in Steel Corp., 	301 U.S. 	1,
1 LRRM 703 	(1937), 	the case in which the constitutionality
of the Wagner Act was upheld, 	the Supreme Court wrote:
The Act does not 	interfere with the normal
exercise of the right of the employer to
select its 	employees or to discharge them.
The employer may not, 	under the cover of
that right, 	intimidate or coerce its
employees with respect 	to their self-
organization and representation, 	and, 	on
the other hand, 	the Board is not entitled
to make its authority a pretext for inter-
ference with the right 	of discharge when
that 	right is 	exercised for other reasons
than such intimidation and coercion.
1 LRRM 714.
10
Section 10(c) 	of the NLRA,as 	amended. 	For a discussion
of how this 	section was 	added and the judicial precedent
upon which it was based see NLRB v. 	LOCAL 1229, 	IBEW,
346 U.S. 464, 	33 LRRM 2183 (1953) .
-16-

In the federal 	context, 	cases 	such as 	the present
case 	arise 	as 	allegations 	that 	an 	employer violated
Section 8(a)(l) 	and/or Section 8(a)(3) 	of the National
Labor Relations Act. 	The National 	Labor Relations 	Board
and 	the 	federal 	courts 	have 	evolved 	differing 	approaches
for 	analyzing 	cases brought up under the 	two 	sections.
If 	the 	allegation 	is 	that 	the employer violated
Section 8(a)(1) 	by 	interfering with, 	restraining or coercing
employees 	engaged in protected activity, 	the NLRB and the
federal 	courts 	increasingly 	engage 	in a balancing process.
The relevant provisions of the National Labor
Relations Act, as amended, are the following:
Sec. 	7. 	Employees 	shall have the right 	to self-
organization, 	to form, 	join or assist 	labor
organizations, 	to bargain 	collectively through
representatives 	of their own choosing, 	and to
engage 	in other 	concerted activities 	for 	the
purpose 	of collective bargaining or 	other
mutual 	aid or protection, 	and shall 	also have
the 	right 	to 	refrain 	from any or 	all 	of 	such
activities 	except 	to 	the 	extent 	that 	such right
may be 	affected by 	an 	agreement 	requiring member-
ship 	in a 	labor organization as 	a 	condition of
employment as 	authorized in section 8(a)(3).
Sec. 	8(a). 	It shall be an unfair labor practice
for 	an 	employer
(1) 	to interfere with, 	restrain, 	or coerce
employees 	in 	the 	exercise 	of the rights
guaranteed 	in 	section 	7...
(3) 	by 	discrimination in regard to hire or
tenure of 	employment 	or 	any 	term or 	condition
of employment 	to 	encourage 	or 	discourage member-
ship 	in any 	labor 	organization...
12
The balancing 	test 	is 	explained in NLRB v. 	Thor Power Tool 	Co.,
351 F.2d 584, 	60 LRRM 2237 	(CA 7, 	1965):
As 	other 	cases have made 	clear, 	flagrant 	conduct
of an 	employee, 	even 	though occurring in 	the 	course
of Section 	7 activity, 	may justify 	disciplinary
action by the 	employer. 	On the other hand, 	not
every 	impropriety 	committed 	during 	such 	activity
places 	the 	employee beyond 	the 	protective 	shield
of the Act. 	The employee's 	right 	to 	engage 	in
concerted 	activity may permit 	some 	leeway 	for 	impulsive
behavior, 	which must be balanced against 	the employer's
right 	to maintain order 	and respect. 	60 LRRM 2238. 	(con't)
-17-

12
Both 	the 	employer and the 	employees have 	important 	rights
in such cases. 	The employer has 	the right 	to maintain
order, 	respect and control of a plant or factory. 	The
employees have 	the right to 	form, 	join or assist 	labor
organizations 	and to engage 	in other 	concerted activities
for mutual aid or protection. 	The NLRB 	and the courts 	look
to 	the 	facts 	of the particular 	case and weigh the rights 	of
the parties 	against each other. 	Employee 	exercise of speech
and subsequent 	employer 	retaliation often 	lead to 	the
balancing process. 	In a number of cases, 	the federal 	courts
have 	considered 	inflamatory 	speech 	and 	reversed NLRB 	decisions
to reinstate employees. 	But other cases 	on similar 	facts have
(con't) 	See also: 	Farah Mfg. 	Co., 	202 NLRB 666, 	82 LRRM
1623 	(1973); 	Bob Henry Dodge Inc., 203 NLRB 78, 	83 LRRM 1077
(1973); 	Prescott Indus. Prods.Co., 	205 NLRB 51, 	83 LRRM
1500, 	enf. 	denied 500 F.2d 6, 	86 LRRM 2963 	(CA 8, 	1974).
13 In Maryland Drydock Co. 	v. 	NLRB, 	183 F.2d 538, 	26 LRRM 2450
(CA 4, 	1950), 	the court set aside an NLRB order that the
employer 	reinstate an 	employee who 	distributed 	literature
which held company officials 	up 	to ridicule 	and 	tended to
undermine discipline. 	In NLRB v. 	Blue Bell Inc., 	219 F.2d
796, 	35 LRRM 2549 	(CA 5, 	19337, 	the court denied enforcement
of an NLRB order 	that 	an 	employer reinstate 	an 	employee
discharged for 	calling 	the 	company's 	vice president 	"a 	liar.'
In NLRB v. 	Superior Tool and Die Co 	30	. ' 	9 	F.2d 692, 	51 LRRM
2504 	(CA 6, 	1962), 	enforcement was denied to an NLRB order
that an 	employer rehire 	employees with whom non-strikers
refused to 	resume working because 	they had used "scurrilous
epithets 	and threats" on the picket 	line. 	In Chemvet
Laboratories, 	Inc. v. 	NLRB, 	497 F.2d 445, 	86 LRRM 2262
(CA 8, 	1974), 	the employer was held not to have violated
the Act by 	discharging 	a union 	adherent who 	used profanity
against a supervisor. 	In NLRB v. 	Garner Tool and Die Mfg.,
Inc. , 	493 F.2d 263, 	85 LRRM 2652 (CA 8, 	1974) , 	enforcement
was 	denied because 	there was no evidence 	of union animus 	in
the 	discharge 	of an employee who 	called a 	company president
an "s.o.b." 	during a dispute over working conditions.
-18-

14led to the opposite result. 	Each case appears 	to have been
decided on its 	individual 	facts 	as weighed by the NLRB 	and
courts 	for competing interests.
If the 	allegation is 	that 	the employer violated
Section 8(a)(3) 	by discrimination to encourage or discourage
membership in a labor organization, 	the NLRB and the federal
courts 	look both at 	the 	inherent effect of the employer's
act and the motivation behind it. 	Depending upon the nature
of the employer's act, 	a showing of anti-union intent may
be required.
The EERA combines 	the protections 	of Sections
8(a)(l) 	and 8(a)(3) 	in Government Code Section 3543.5(a).
15That 	section 	prohibits both 	interference with the
exercise of protected rights 	and discrimination against
employees because of their exercise of rights.
14 In Offner Electronics, 	134 NLRB 1064, 	49 LRRM 1307, 	the
NLRB 	ordered reinstatement 	of an employee who 	circulated
an anonymous gossip sheet. 	In NLRB v. 	Thor Power Tool Go.,
351 F.2d 584, 	60 LRRM 2237 	(CA 7, 	1965), 	the court enforced
an NLRB order to reinstate a grievance committee member
who called a supervisor a "horse's 	ass" 	after a grievance
session. 	In Owens-Corning Fiberglass Corp. 	v. 	NLRB, 	407 F.2d
1357, 	70 LRRM 3065 	(CA 4, 	1969), 	the court enforced a board
order 	that an employer reinstate workers who 	circulated a
leaflet which criticized a supervisor for refusing to allow a
worker to take home a fellow employee whose wife was killed
in a car wreck. 	In NLRB v. 	Cement Transportation, 	Inc.,
490 F.2d 1024, 	85LRRM 2292 (CA 6, 	1974), 	the court enforced
reinstatement of a union 	leader who used profanity against
the 	employer's 	president and made 	statements 	that he would
help "tear down" the company.
15 See footnote No. 	3, 	supra.
-19-

The EERB's 	initial 	interpretation of Government
Code Section 3543.5(a) 	can be found in the recent case of
San Dieguito Faculty Association v. 	San Dieguito Union
High School District, 	EERB Decision No. 	22, 	September 2,
1977. 	In that case the Board concluded that for a violation
to be 	found it must be shown "at minimum" 	that an employer
acted either with "the 	intent 	to 	interfere with the
rights 	of the employees" or that 	the employer's 	conduct
"had the natural and probable consequence" of 	interfering
with the rights of the employees. 16
In the present case, 	the District evidenced no unlaw-
ful intent. 	It disciplined three employees 	for breaking District
rules unrelated to organizational activity. 	The 	three employees
involved were 	suspended 	for 	the preparation and distribution in
the public schools of a leaflet which, 	among other claims,
16 The EERB 	test 	appears 	to be a modification of the United
States 	Supreme Court's test 	NLRB 	v. 	Great Dane Trailers
Inc., 388 U.S, 26, 	65 LRRM 2465 (1967) . 	In applying
the rule of Great Dane Trailers, 	the NLRB considers
whether 	the 	employer's 	conduct 	is 	inherently destructive
of employee rights. 	If the conduct 	is inherently
destructive, 	no evidence of anti-union motivation is
needed and the NLRB balances 	the rights 	of employees
against 	the 	interests 	of the employer. 	If the employer's
conduct 	is not 	inherently destructive of employee rights
and if the employer has legitimate business reasons,
then there must be proof of anti-union motivation by the
employer. 	Proof of anti-union motivation can be 	found
in anti-union comments made before or after the discharge
or, 	in some circumstances, 	prior conduct. 	See generally,
W.T. Grant Co. , 210 NLRB 622, 86 LRRM 1365 (1974);
United Cement Co., 	209 NLRB 1137, 	86 LRRM 1237 	(1974);
Radiodores Paragon dePuerto Rico, 	Inc., 	206 NLRB 918,
84 LRRM 1591 (1973), 	enforced 87 LRRM 3274 (CA 1, 	1974);
Mademoiselle Shoppe Inc., 	199 NLRB 983, 	82 LRRM 1022 	(1972)
-20-

implies 	sexual misconduct among certain District employees.
The leaflet is a crude document, 	hardly the kind of litera-
ture which 	school 	district 	employees might be expected to
circulate. 	Its connection to negotiations 	is tenuous. 17
The District 	could properly conclude 	that 	a leaflet
such as 	that prepared by the CSEA has no place 	in a public
school. 	The District has 	an interest 	in insuring that
children are not 	exposed to 	innuendoes 	about 	the 	sexual
activities 	of employees whom they might know. 	The District
has an additional 	interest 	in protecting 	the reputations 	of
its employees 	from locker room gossip. 	The 	circulation of
such stories 	could be expected to have a lethal effect on
the morale of the employees 	involved. 	The evidence was 	clear
in this 	case 	that real persons were being discussed in the
leaflet, 	despite the disclaimer that the names 	in the document
were fictitious. 	Some items 	-- 	like the "vanilla rope"
incident 	-- 	described events witnessed by many employees.
This would provide 	the 	appearance of credibility to other
entries, 	like the suggestion of persons 	"playing around" in
the administration building. 	The reputations of both manage-
ment and non-management employees were maligned. 	It is
reasonable 	that 	the District 	should have reacted quickly to
identify and punish those responsible.
17 The District cites the "Jefferson Standard" case, 	footnote
No. 	10, 	supra, 	as justification for the discipline of the
CSEA members who wrote and 	distributed the leaflet 	that
caused this 	action. 	The hearing officer does not believe
the Jefferson Standard case is 	directly on point. 	That
case raised 	the issue of whether employees 	can 	tear down
their 	employer 	in leaflets 	distributed to the public. 	The
Supreme Court 	concluded that 	the discharge of the employees
was permissible because 	they were disloyal 	to 	their employer,
In the present case, 	the leaflets were not circulated to the
general public. 	Their target audience was 	the employees of
the school district. 	Thus, 	the hearing officer concludes
that the concept of disloyalty, 	as explained by the Supreme
Court, 	is not applicable here.
-21-

In its brief, 	CSEA cites 	the California case of
Gregory v. 	McDonnell Douglas Corp., 	17 Cal.3d 596 	(1976)
as 	standing for 	the proposition that publications 	arising
from labor disputes are given "special 	safeguards" 	in a
libel 	action. 	CSEA reasons 	that "if the 	same broad standards
are not used with regard to what 	constitutes 	interference
with union activity, 	school employees of the State of
California will be placed in the anomalous position of
being disciplined for making statements 	in the course of
union activity, 	which statements 	are constitutionally
protected."
The central question in Gregory was whether certain
statements made about 	two union leaders were 	statements of
fact or 	statements of opinion. 	The court observed that 	for
libel 	to exist there must be a statement of fact. 	It con-
cluded that 	the 	statements 	in Gregory were 	statements 	of
opinion and it upheld the judgment for 	the defendants.
As 	the California court noted in Gregory, 	the
United States 	Supreme Court has 	adopted the rule of New York
Times v. 	Sullivan, 	376 U.S. 	254 	(1964) 	as the test for libel
in cases 	involving labor disputes. 	Linn v. 	Plant Guard
Workers, 	383 U.S. 53 (1966); Letter Carriers v. Austin,
418 U.S. 	264 	(1974). 	For libel to be proven under the New
York Times rule, 	the plaintiff must show "actual malice"
which the court has 	defined as publication with 	(1) 	knowledge
of falsehood or 	(2) 	reckless 	disregard of whether the 	state-
ment was 	true or not.
In Linn, 	the Supreme Court summarized NLRB precedent
in 	speech cases 	and observed that employees have been given
protection even 	for 	statements 	that are 	erroneous 	and defam-
atory. 	However, 	the court continued:
. . .the Board indicated that its
decisions would have been different
had 	the 	statements been uttered with
actual malice, 	'a deliberate inten-
tion to 	falsify1 or 	'a malevolent
desire to injure.' 	E.g., 	Bettcher
Mfg. Corp 76 NLRB 526 (1948); Atlantic
Towing Co. 	75 NLRB 1169, 	1170-1173
(1948). 	In sum, although the Board
tolerates intemperate, 	abusive and
-22-

inaccurate 	statements made by the
union during attempts 	to organize
employees, 	it does not interpret the
Act as 	giving either party 	license
to 	injure 	the other intentionally by
circulating 	defamatory or 	insulting
material known to be false.
383 U.S. 61, 15 L. Ed. 2d 589.
These cases provide little solace for CSEA. 	The
Gregory distinction between fact and opinion is not helpful.
The suggestion in the leaflet that 	the District's 	deputy
superintendent had intercourse with more 	than one woman
concurrently is a factual 	inquiry, 	not a matter of opinion.
The apparent suggestion that either Judy C. 	or V.G. 	might be
"playing around" with someone in 	the administration building
is not a statement of opinion.
Neither is 	the explanation that "intercourse"
means 	"conversation" helpful 	to CSEA. 	In the context of
this 	leaflet a reasonable reading of the word "intercourse"
is 	"coitus." 	Indeed, 	Mr. 	Young testified that the item was
humorous because 	it had a dual meaning and could appear 	to
suggest 	"some form of sexual relationship" was 	occurring.
By his own testimony, 	Mr. 	Young intended to imply more than
a "conversation" between the 	deputy 	superintendent 	and the
women. 	The item, 	written with that intention in mind, 	might
well qualify as what 	the Supreme Court describes 	as 	"a
deliberate intention to falsify" or "a malevolent desire to
injure."
It seems apparent, 	therefore, 	that the District had a
legitimate personnel and educational 	intent 	in the 	disciplining
of these employees. 	No evidence was presented to show any other
motivation. 	There was no evidence the District harbored
bias 	against 	these 	three employees because of their CSEA
involvement, 	or that it had bias against the CSEA as an
organization, 	or that 	it disciplined the three employees
in an effort to discourage membership 	in the CSEA.
Neither was 	there any evidence 	that 	the 	disciplining
of the 	three CSEA officers had "the natural and probable
-23-

consequence 	of interfering'' with 	the 	employee exercise 	of
statutory rights. 	The EERB-conducted election in which CSEA
was 	a party occurred the 	day after 	the distribution of the
leaflet. 	It was not until December 9 	that the District even
determined which organization was 	responsible. 	The 	full
disciplinary process 	did not get underway until January,
long after CSEA already had been certified as 	the 	exclusive
representative. 	The drop 	in CSEA membership after the distri-
bution of the leaflet was no 	greater 	than membership 	losses
CSEA had incurred in the months before. 	Thus, 	given the
timing of the 	disciplinary process 	in relation to the election,
there 	is no reason to conclude 	its natural and probable
consequence would be 	an invasion of employee rights.
For these reasons, 	the hearing officer concludes
that 	the District's 	suspension of the three employees was
not 	an 	improper reprisal 	or 	discrimination and did not
violate Government Code Section 3543.5(a).
As 	an alternate theory, 	CSEA alleged in its 	original
charge 	that 	the District's 	actions 	constituted domination or
interference with the administration of CSEA. 	If proven,
this would be a violation of Government Code Section 3543.5(d).
CSEA argues 	that 	the interrogation of its 	officers 	on
January 7, 	1977 was 	"an attempt to interfere with the admin-
istration of an employee organization." 	This 	is 	a misreading
of the law. 	Government Code Section 3543.5(d) 	parallels
18Section 	8(a)(2) 	of 	the 	National 	Labor 	Relations 	Act18
. 	The
18Section 8(a)(2) of the National Labor Relations Act reads
as follows:
Sec. 	8. 	(a) 	It shall be an unfair labor practice for
an 	employer ---
(2) 	to dominate or interfere with the formation or
administration of any 	labor 	organization or 	contribute
financial or other support to it: 	Provided, 	That
subject 	to rules 	and regulations made and published
by the Board pursuant 	to 	section 6, 	an employer shall
not be prohibited from permitting employees 	to 	confer
with him during working hours without 	loss 	of time or
pay.
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federal 	law has been enforced to prevent 	an employee organiza-
tion from being 	controlled by an employer or becoming so
dependent upon the employer's 	favor that 	it cannot give
wholehearted attention to the needs of employees. 	The 	law
also has been enforced to prevent 	employer interference with
the 	internal working of an employee organization.
The hearing officer 	finds nothing in the District's
conduct 	in the present case to 	substantiate a charge of
employer 	domination or interference.
In its original charge, 	CSEA also contends 	that
the District's 	action was a violation of rights 	guaranteed
1199
under 	Government 	Code 	Section 	3543.l(b). 	This 	section
gives 	employee organizations 	the access 	to areas 	in which
employees work and the right to use certain means 	of communi-
cation. 	In its post-hearing brief, 	CSEA does not set forth
its 	legal 	theory for how the District violated this right.
The hearing officer finds nothing in the evidence presented
at 	the hearing to 	substantiate 	the allegation. 	Accordingly,
the hearing officer concludes 	that this 	charge also has not
been proven.
Finally, 	in its post-hearing brief, 	CSEA raises
the 	theory that 	the District violated the 	statute by going
forward with its 	January 7, 	1977 	investigation when the CSEA
members were unrepresented because Mr. 	Young was 	out on strike
against the CSEA. 	In support of this 	theory, 	CSEA cites
Social Workers Union 535 v. 	Alameda County Welfare Department,
11 Cal.3d 382 	(1974) 	and NLRB v. Weingarten, 	Inc., 420 U.S. 	251,
43 L.Ed.2d 171, 	88 LRRM 2689 	(1975). 	Also relevant is a
19 	Government Code Sec. 	3543.l(b) 	reads as follows:
Employee organizations 	shall have 	the right of access
at reasonable times 	to areas 	in which employees work,
the right to use institutional bulletin boards, 	mail-
boxes, and other means of communication, subject to reas-
onable regulation, 	and the right to use institutional
facilities 	at reasonable times 	for the purpose of
meetings 	concerned with 	the exercise of the rights
guaranteed by this 	chapter.
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companion case 	to Weingarten, 	International Ladies 	Garment
Workers' Union v. 	Quality Manufacturing' Co., 420 U.S. 	276,
43 L. Ed. 2d 189, 	88 LRRM 2698 (1975).
In Weingarten, 	the 	Supreme 	Court 	enforced an NLRB
cease-and-desist 	order 	to 	an 	employer who had 	denied 	an
employee 	the right 	to have 	a union representative present
during 	an 	investigatory 	review which 	the 	employee 	reasonably
believed might 	lead to 	disciplinary action. 	The 	court 	upheld
the NLRB 	reasoning 	that 	the 	employer's 	action was 	a violation
of Section 	8(a)(l) 	of the National Labor Relations Act
because 	it 	interfered with, 	restrained, 	and coerced the
employee's 	rights 	under 	Section 	7 	to 	engage 	in concerted
activities. 20
But neither Weingarten nor 	Social Workers 	Union 	535
is helpful 	to 	CSEA. 	In both of those 	cases 	the 	employer
specifically 	denied a 	request 	from an 	employee 	that 	a union
representative 	accompany 	the 	employee 	into 	an 	investigatory
meeting with a management official. 	That 	is 	not 	the 	factual
situation 	in 	the present 	case. 	In 	the present 	case 	the
District 	advised 	the employees 	of 	their 	right 	to have a
representative present at 	the January 	7, 	1977 	interview.
No representative was 	present because 	the representative
chosen by 	the 	employees was 	on strike. 	There was 	no 	evidence
that 	they would have been 	prevented 	from bringing 	a private
attorney with 	them had 	they 	so 	desired. 	As 	counsel 	for 	the
District 	argues 	in her brief, 	the 	"failure of representation
lies 	not with 	the 	District but within 	CSEA." 	The District
had no 	obligation 	to 	grant 	a 	continuance 	under 	these 	circum-
stances.
Section 7 of the National Labor Relations Act is
reproduced at footnote No. 11, supra.
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RECOMMENDED 	ORDER
Upon 	the ·foregoing 	findings · of 	fact, 	conclusions 	of
law, 	and 	the 	entire 	record of 	the 	case, 	it 	is hereby ordered
that:
The 	unfair 	practice 	charge 	filed by 	the 	California
School 	Employees Association, 	Chapter No. 	44, 	against 	the
Pittsburg Unified 	School 	District, 	alleging violations 	of
Government Code Sections 	3543.5(a) 	and 3543. 5(d), 	is
dismissed.
Pursuant 	to 	Title 	8, 	California Administrative 	Code
Section 	35029, 	this 	recommended 	decision 	and order 	shall
become 	final 	on September 	21, 	1977, 	unless 	a 	party files
a 	timely 	statement 	of 	exceptions 	within 	seven 	(7) 	calendar
. days 	of 	service. 	fee, 	3 	Cal. 	Admin. 	Code 	Sec . 	35030 .
Dated : 	September 	8, 	1977
RonaldE . Blubaug~
Hearing 	Officer
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