Santa Clara Unified School District (PERB 0060E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA UNIFIED SCHOOL DISTRICT,
Respondent,
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SANTA CLARA FEDERATION OF TEACHERS,
Local 2393, AFT, AFL-CIO,
Charging Party,
and,
UNITED TEACHERS OF SANTA CLARA, CTA/NEA,
Intervenor.
Case No. SF-CE-13
PERB Decision No. 60
August 3, 1978
Appearances: J. Michael Taggart, Attorney (Paterson & Taggart) for
Santa Clara Unified School District; Robert J. Bezemek, Attorney
(Van Bourg, Allen, Weinberg and Roger) for Santa Clara Federation
of Teachers, Local 2393, AFT, AFL-CIO; and Joseph G. Schumb, Jr.,
Attorney (La Croix & Schumb) for United Teachers of Santa Clara,
CTA/NEA.
Before Gluck, Chairperson; Cossack Twohey and Gonzales, Members.
DECISION
On May 31, 1977 a Public Employment Relations Board (hereafter
Board) hearing officer issued a recommended decision in this case
dismissing all aspects of the unfair practice charge. On June 7,
1977 charging party Santa Clara Federation of Teachers, Local 2393,
AFT, AFL-CIO (hereafter Federation) filed limited exceptions to
the recommended decision. Federation excepted to the hearing
officer's failure to find that Laura Garton was discriminated
against because she sought assistance from Federation, that
William Chapman was harassed because he engaged in protected
activities, and that the change in the teaching schedule at
Wilson school was made without discussion with Federation.
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Federation also excepted to the hearing officer's failure to make
certain credibility resolutions between conflicting testimony
necessary to resolve the allegation that Laura Garton was discrimin-
ated against in violation of section 3543.5(a) of the Educational
Employment Relations Act (hereafter EERA).1
The Alleged Discrimination Against Laura Garton.
I
Laura Garton was first employed by Santa Clara Unified School
District (hereafter District) as a long-term substitute at Cabrillo
Junior High School from September 1974 through the first semester
of the 1974-75 school year. She was then employed as a long-term
substitute at Wilson Junior High School from December 1, 1975
through the end of the school year in 1976. She was employed as
a summer school teacher at Washington Elementary School during
the summer of 1976.
Garton first learned of the possibility of an opening in the
English Department at Wilson at the end of June 1976 from
Washington summer school principal Barbara Jeffers. Jeffers asked
Garton if she had an English minor; Garton replied that she did
not but that she would check into it. About two days later Garton
called Wilson principal John Cowden and asked if there was the
possibility of a job at Wilson. Cowden told Garton that she had
to have an English minor and if she did, there was a good possi-
bility of getting a job. The same week Garton enrolled in a
three-unit English class at San Jose State University. On
August 13, 1976 she received her grades from San Jose State
University. Garton took the grades to the District office and
secured an affidavit that she had earned enough credits to have
an English minor recorded on her teaching credential. She
registered this affidavit with the District office.
1 The Educational Employment Relations Act is codified at Gov.
Code sec. 3540 et seq. All references are to the Government Code
unless otherwise specified.
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On August 27, 1976, the Friday before school started, principal
Cowden and Garton talked on the phone. According to Garton, Cowden
told her during the phone conversation that he thought he had some
English and art classes for her. According to Cowden, he suggested
that there "was an opening in the English Department, and [asked]
whether or not she would feel like this would be something that
she could handle since she was not an English major or minor at
that time..." Garton and Cowden subsequently met at Wilson the
same day and agreed that Garton would teach at Wilson as a long-
term substitute. According to Garton, Cowden in effect said that
"if things worked out" he did not see anything that would hinder
Garton from being hired. According to Cowden, while he neither
indicated that the job would be permanent and full-time nor pro-
mised Garton that she would get the job if it became permanent,
"I told her this would be an opportunity for her and she'd have an
inside track on the job."
Garton began teaching at Wilson the following Monday, the day
orientation began. According to Garton, at the end of the second
week of class she met Cowden accidentally between classes and
Cowden asked her if she was ready to have assistant superintendent
Gervase come in and observe her. Garton replied that she was ready
any time. Cowden recalls that he had a conversation with Garton
around the third week of class regarding her observation by Gervase.
However, the record is silent regarding Cowden's recollection of
the substance of this conversation.
Garton testified that on Tuesday of the following week Cowden
called her out of class and into his office. He told her that
enrollment had gone down and that the District did not have enough
money to hire a full-time teacher. Cowden further said that the
position would be part-time, teaching three English classes at
about 57 percent of full salary. Cowden told Garton to think
about it and let him know if she was interested by Friday.
Cowden recalls that he had a discussion with Garton regarding
whether or not she would be interested in the job as a part-time
position. Cowden testified that he began the conversation by
telling Garton that the job would be 57 percent of a full-time job.
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Cowden further testified that "...the job that was open to her"
was a position paid at 57 percent of the full-time rate and that
he asked Garton to consider the position. However, Cowden also
testified that he did not remember telling Garton for the first time
on September 21, 1976 that the job was only part-time.
Rather, according to Cowden, he decided about six weeks after
classes began that he was going to have to fill the position either
part-time or full-time. Cowden told assistant superintendent
Gervase:
...that it looked like we were either going
to have to fill a part-time position or a
full-time position in English with one art,
and that I wasn't really sure yet just
exactly what percentage of time, whether it
would be a 100 percent or some fraction
thereof, and at that time we discussed pro-
cedures, and it was his [Gervase's] position
and the obvious position that we'd have to
advertise.
Garton, however, testified that subsequent to her conversation
with Cowden, sometime between Tuesday and Thursday afternoon, she
went to the District office and spoke to Mary Mabrey, assistant
superintendent Gervase's secretary. Mabrey gave Garton the schedule
of insurance benefits prorated on the basis of percentage of time
employed. Garton testified that when she introduced herself to
Mabrey, Mabrey said, "Oh, you're the one that's going to be over
at Wilson." Maybrey did not testify at the hearing.
On Thursday afternoon, after she had been to the District
office, Garton called Federation president James Hamm and explained
the part-time offer to him. Hamm said he would look into it at the
District office and would check on the percentage and the schedule.
Hamm testified that Garton contacted him prior to the time the
position was posted and told him she had been offered a 57 percent
part-time position at Wilson. Garton said that her classes were
scattered throughout the day. She wanted to know what her rights
were as a part-time employee and whether she was getting a fair
shake. Hamm called Gervase and asked how the District had arrived
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at the 57 percent figure. Gervase said that he did not understand
how the percentage had been determined, that it did not appear
correct and that he would look into it. Although Gervase testified
at the hearing, he did not testify about the substance of this
alleged conversation with Hamm.
Garton testified that Hamm called her on Friday afternoon and
told her it would be more beneficial for her to take the part-time
position. She tried to see Cowden, but he was not in. Garton
further testified that she went to see Cowden on Monday morning,
September 27, 1976. She asked Cowden how he had arrived at the
57 percent figure and showed him four different ways in which the
percentage could be computed. Cowden agreed that the proper per-
centage was 66 rather than 57.
Garton testified that she was called into Cowden's office
over the loudspeaker later the same day. Cowden appeared to be
very angry. The first thing he asked her was what she was doing
going to Jim Hamm. Cowden then stated that he had received a
call from assistant superintendent Gervase, that Gervase said
Hamm had been in his office and it sounded like Garton wante	·------	d to
grieve the whole thing. Cowden went on to state that he felt
like he was being stabbed in the back, that she should watch
who her friends were, that they might not really be her friends
at all, and that if she had problems she should come and talk to
him. Garton replied that she had not just gone to the Federation,
that she had actually made her decision before she had even called
the Federation, and that she had talked to many people in the
District so she could make the best decision. The meeting ended
with Cowden telling Garton:
...that the job would...be part-time. It
would have to be posted with the District in
case there were other teachers in the pool...
who wanted... it... and then if no one wanted
it in the District then it would go elsewhere.
Cowden places this conversation somewhere around October 1,
1976. According to Cowden, the meeting took place because he had
received a call from assistant superintendent Gervase in which
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Gervase told him Garton was concerned that the schedule of classes
was awkward. He called Garton into his office on the same day he
received the call from Gervase and asked her what her concerns were
regarding the schedule and why she had not talked to him about it
first. Cowden testified as follows:
Q. [by Taggart] Did he [Gervase] indicate to
you that Laura Garton had seen anybody else
other than Mr. Gervase concerning a part-time
assignment? To the best of your recollection.
A. I can't remember if she did or not.
*******
Q. The meeting you said took place on or
about or around October 1st involving
Ms. Garton in your office, did you ever
mention Jim Hamm in that meeting?
*******
A. I think that Nick Gervase mentioned that
she had talked to--that she had talked to
Jim Hamm, and I asked her, I believe she
had. She said, yes, she'd talked to
several people.
And at that point I asked her why didn't
she come to me first.
Cowden does not remember whether he had one or two conversations
with Garton on this day. Cowden denies both that he was angry
and that he raised his voice to Garton.
Cowden testified that "it was [Gervase's] position and the
obvious position that we'd have to advertise." Cowden also testified
that Gervase recommended that the job be advertised. Gervase
testified that he made the decision to advertise the position.
Gervase also testified that the September 27, 1976 written request
for posting a part-time opening in the English Department at Wilson,
"initiated with John Cowden." A Notice of Personnel Action
requesting that the position be advertised was signed by Cowden
on October 11, 1976 and by Gervase on October 14, 1976 and appears
to be from Cowden to Gervase. The actual job advertisement is
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dated October 12, 1976 and, according to Cowden, was posted in
the faculty room at Wilson sometime between September 28 and
October 12. Garton testified that the advertisement was posted
on either October 8 or 11, 1976, approximately a week after Cowden
told her the job would be posted.
According to Gervase, there is both a District policy and a
District practice with respect to posting job vacancies. Gervase,
as assistant superintendent-personnel, is responsible for imple-
menting all decisions to advertise positions. The District policy
requires that vacant jobs be posted to permit teachers who have
been involuntarily transferred to bid on them. The District prac-
tice is to advertise for "resource" teachers because funding guidelines
generally require that a committee interview applicants. Otherwise,
according to Gervase, "...many times we do not advertise...a normal
teacher's position, because we have many applicants that we can
draw from."
At the time the decision was made to advertise the position
at Wilson, all persons in the involuntary transfer pool had been
assigned. Gervase testified that he "wanted to see some other
applicants" because Garton had a minor in English and with the high
unemployment rate of teachers he thought there were very many
qualified persons who were available.
According to Cowden, he determined that all applicants should
be interviewed by a screening committee. Gervase testified that
he told Cowden "...that I would expect that he would have a committee
that would work with him in screening the applicants." While
Gervase stated that there have been other screening committees
for non-resource teacher positions in the past two years, he could
not recall how many there had been or when they occurred.
There were five candidates for the position, including Garton.
Garton testified that she was interviewed twice for the job, first
by Gervase and then by the screening committee composed of principal
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Cowden and teachers George Champion and Georgia Campbell. During
the interview with Gervase:
...he wanted me to make sure if I had
problems to come to him first instead
of going outside, that his office is
the place to take care of it.
Gervase also told Garton that Cowden would decide who got the job.
Gervase terminated the interview, which lasted about 10 minutes,
by telling Garton that:
...if I didn't get the job he hoped that
I wouldn't be discouraged and would stay
in with the District.
On approximately November 1 or 2, 1976, Cowden told Garton
that the job had gone to someone else. She asked why and Cowden
explained that since none of the other English teachers had an
English major, he wanted someone with more of an academic back-
ground and an English major to build up the department.
Cowden recalls meeting with Garton in his office right after
he had told Gervase that he recommended another applicant,
Lillian Jurika, for the position. Cowden told Garton:
I was sorry, that she did not get the
job, and that the one concern we had
was the lack of a strong academic
backgroun.d in English...if we had an
art opening I would sure, even without
possibly even an interview, I would
really push to avoid an interview
and hire her as an art teacher.
II
The hearing officer concluded that the District, had
not violated sections 3543.5(a) or (b) by failing to hire
Laura Garton in a regular position. The hearing officer made
no conclusions about whether or not the alleged conversations
between Garton and principal Cowden and Garton and assistant
superintendent Gervase occurred as alleged and, if so, whether
or not they constituted independent violations of section 3543.5(a).
We believe resolutions of conflicting testimony and evidence is
necessary.
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In general, the relationship on appeal between an agency and
a hearing officer ought to be that of a trial court to an appellate
court. Conclusions, interpretations, law and policy should be open
to full review. However, those matters about which the hearing
officer, who has seen the witnesses and heard the evidence, has a
better basis for decision should not be disturbed unless the
hearing officer is clearly erroneous2. A hearing officer must base
findings of fact on direct evidence or reasonable inference. To be
reasonable, and thus qualify as a fact found, an inference must be
one that springs logically to mind in the context of the known
facts.
There was conflicting testimony at every juncture of the
events here in question, beginning with the conditions under which
Garton was hired as a long-term substitute at Wilson in August of
1976. These conflicts encompass not only conversations between
persons but also the chronology of events culminating in the post-
ing of the part-time position in the English department at Wilson. As
the record now stands, the hearing officer apparently credited Garton with
respect to some of these matters and Cowden or Gervase with respect
to others. Furthermore, while the hearing officer concluded that it
was assistant superintendent Gervase, not principal Cowden, who
made the decision to advertise the job at Wilson, the evidence is
unclear as to whether Cowden had any effective role in the decision.
In these circumstances, the hearing officer must determine, and
state the basis on which the determination rests, the credibility
of witnesses and the weight to be given to conflicting items of
evidence.
Sound administrative decision-making makes it imperative for
us to have the benefit of the hearing officer's opportunity to
observe the witnesses he hears and sees but which we do not. We
therefore remand the case for a determination of the credibility
2 Universal Camera Corp. v. NLRB (1951) 340 U.S. 474, 494 [27
LRRM 2373].
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of 	the 	witnesses 	and 	the 	weight 	to 	be 	given 	their 	testimony 	and
conflicting 	items 	of 	evidence, 	together with 	a 	recital 	of 	the 	bases
on which 	the 	determinations 	rest . 	This 	will 	require 	such 	amended
findings 	of 	fact 	as 	are necessary 	to 	reflect 	these 	resolutions .
The 	Alle g ed 	Harassment 	of 	William Chap man 	and 	The 	Wilson 	School
Chan g e 	in 	Teaching 	Schedule
The 	Federation has 	also 	excepted 	to 	the 	hearing 	officer's
failure 	to 	find 	that 	the 	District 	unlawfully 	harassed 	William Chap man
and unlawfully 	changed 	the 	teaching 	schedule 	at 	Wilson 	School . 	In
view of 	our 	decision 	to 	re mand 	the 	prior 	allegation 	to 	the 	hearing
officer 	for 	resolution of 	credibility 	issues, 	we 	make 	no 	decision
today with respect 	to 	these 	allegations . 	Rather, 	we 	will 	decide
the 	entire 	case when 	the 	record before 	us 	is · co mplete .
ORDER
The 	Public 	Employment 	Relations 	Board 	orders 	that:
(1) 	The 	hearing 	officer 	shall 	issue 	a 	supple mental 	recommended
decision 	resolving 	the 	conflicting 	testimony 	regarding 	the 	allegations
that 	Laura 	Garton was 	discriminated 	against 	in violation 	of 	section :
3543 . 5 	(a) 	and 	(b) .
(2) 	The 	parties 	shall 	have 	twenty 	(20) 	calendar 	days 	after
service 	of 	the 	hearing 	officer ' s 	supple mental 	recommended 	decision
in which 	to 	file 	exceptions 	to 	the 	supplemental 	recommended 	decision .
Regardless 	of 	whether 	or not 	exceptions 	are 	filed, 	the 	case 	shall 	be
returned 	to 	the 	Board 	itself 	for 	determination 	in 	light 	of the .
supplementa·~ 	reco mmended 	decision .
Jerilou 	Cossack 	Twohey, 	Member 	Chairperson
....L
Ray mond 	J . 	Gonzales, 	Member
I 	,
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EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
In the matter of :
SANTA CLARA FEDERATION OF TEACHERS
LOCAL 2393, AFT, AFL-CIO,
Charging Party,
vs.
SANTA CLARA UNIFIED SCHOOL
DISTRICT,
Respondent,
UNITED TEACHERS OF SANTA CLARA
CTA/NEA,
Intervenor.
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) UNFAIR CASE No. SF-CE-13
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Appearances: Robert J. Bezemek, Attorney (Van Bourg, Allen, Weinberg
and Roger) for Santa Clara Federation of Teachers, Local 2393, AFT,
AFL-CIO; J. Michael Taggart, Attorney (Paterson and Taggart), for Santa
Clara Unified School District; Joseph G. Schumb, Jr., Attorney. (La Croix
& Schumb), for United Teachers of Santa Clara/CTA/NEA.
Before Gerald A. Becker, Hearing Officer.
STATEMENT OF THE CASE
On September 15, 1976, the Santa Clara Federation of Teachers,
Local 2393, AFT, AFL-CIO (hereinafter "Federation" or "charging party")
filed an unfair practice charge against the Santa Clara Unified School
District (hereinafter "district" or "respondent"). The district has an
average daily attendance of approximately 20,088 in grades K-12, with
21 elementary schools, 4 intermediate schools, 4 high schools and 1
continuation high school. The certificated staff in the district numbers
approximately 904, of which approximately 860 are non-management employees.
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After various amendments and a "Particularized Statement
of Charge", the charging party essentially alleges that the following
unfair practices were committed by the respondent:
a. In violation of Government Code §3543.5 (a) and (b),
respondent changed the teaching schedule at Wilson Intermediate School
to create more onerous working conditions for employees, so as to
harass charging party members because of their membership in, and
activities on behalf of, charging party, to discourage membership in
charging party and to influence the upcoming representation election;1
b. In violation of Government Code §3543.5 (b) and (c),
respondent changed the teaching schedule at Wilson Intermediate School
2
without meeting and negotiating with charging party. In violation of
Government Code §3543.5 (b), the schedule change was made without meet-
ing and consulting with charging party.
3
c. In violation of Government Code §3543.5 (a) and (b),
respondent threatened, interrogated and harassed William Chapman because
of his activities on behalf of charging party;4
d. In violation of Government Code §3543.5 (a) and (b),
respondent refused to hire a long-term substitute, Laura Garton, as a
regular employee because of her activities with respect to charging
party, and in order to discourage membership in charging party;5 5
1 A summary of paragraphs (1), (2) and (3) of the Third Amended Charge.
2Paragraph (4) of the Third Amended Charge.
3At the hearing, charging party was permitted to make an oral amendment
of its charges to include this allegation.
4A summary of paragraphs (5), (6) and (7) of the Third Amended Charge.
5Paragraph (8) of the Third Amended Charge, as orally "clarified" at
the hearing.
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e. In violation of Government Code §3543.5 (b) and ( d ) ,
respondent dominated and interfered with the formation and administration
of the Independent Teachers Association and the Wilson Intermediate
School Ad Hoc Committee for Truth in Paper Warfare, employee organizations,
and contributed financial and other support to these organizations.6
Respondent denies any unfair practice violations. In addition,
respondent has made various motions with respect to the unfair practice
charges. Prior to the hearing, respondent filed a motion to dismiss the
charge alleging a failure to meet and negotiate the teaching schedule
change at Wilson Intermediate School on the grounds that charging party
did not allege that it was an exclusive representative entitled to meet
and negotiate, and that there was no allegation of a request to the district
from the charging party to negotiate the schedule change. This motion
was renewed at the start of the hearing and at the same time, respondent
also orally moved to dismiss the charges pertaining to the schedule change
(a. above) on the basis that the unfair practice charge was filed more
than 6 months after the acts in question occurred, contrary to Government
Code §3541.5 (a) (1). Finally, at the close of the charging party's case
in chief, respondent orally moved to dismiss all charges on the ground
that insufficient evidence had been presented by charging party to sup-
port a decision in its favor. Ruling was reserved on all respondent's
motions and they are resolved by this proposed decision.
6Paragraph (9) of the Third Amended Charge.
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Prior to the hearing, United Teachers of Santa Clara/
CTA/NEA (hereinafter "Association") filed an application for joinder
in the hearing pursuant to EERB Regulation 35016. The Regional Director
allowed joinder, leaving the extent of participation to the hearing
officer's discretion. The hearing in this matter was held on February 22,
23 and 24, 1977 at the district offices in Santa Clara, California.
At the start of the hearing, the hearing officer ruled that the Association
could participate in the hearing with respect to paragraphs 1, 2, 3 and 9
of the Third Amended Charge ( a. and e. above).
It was stipulated by the parties that the district is an
employer, and that the Federation and Association are employee organiza-
tions within the meaning of the Educational Employment Relations Act
(hereinafter "EERA").7
ISSUES PRESENTED
a. Teaching schedule change at Wilson Intermediate School:
(1) Are the unfair practice charges concerning the teaching
schedule change at Wilson Intermediate School barred by the six-month
limitation period of Government Code Section 3541.5 (a) (1)?
(2) Was charging party required to exhaust the district's
grievance procedure prior to filing an unfair practice charge?
(3) Did the respondent change the teaching schedule at
Wilson Intermediate School so as to harass Federation members, discourage
Federation membership or influence the upcoming representation election,
'Government Code §3540 et seq.
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in violation of Government Code §3543.5 (a) and (b)?
b. Failure to meet and negotiate or meet and consult:
(1) Did respondent fail to meet and negotiate with
charging party concerning the teaching schedule change at Wilson
Intermediate School in violation of Government Code §3543.5 (b) and
(c)?
(2) Did respondent fail to meet and consult with charging
party concerning the above schedule change in violation of Government
Code §3543.5 (b)?
c. William Chapman:
(1) Did respondent threaten, interrogate or harass William
Chapman because of his Federation activities in violation of Government
Code §3543.5 (a) and (b)?
d. Laura Garton:
(1) Is Laura Garton a protected employee under the EERA?
(2) Did respondent refuse to hire Laura Garton as a regular
employee because of her activities with respect to the Federation or to
discourage Federation membership, in violation of Government Code §3543.5
(a) and (b)?
e. Domination and interference with employee organizations:
(1) Did respondent dominate or interfere with the formation
or administration of the Independent Teachers Association, or contribute
financial or other support thereto, in violation of Government Code
§3543.5 (b) and (d)?
(2) Did respondent dominate or interfere with the formation
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or administration of the Wilson Intermediate School Ad Hoc Committee
for Truth in Paper Warfare, or contribute financial or other support
thereto, in violation of Government Code §3543.5 (b) and (d)?
FINDINGS OF FACT
a. Teaching schedule change at Wilson Intermediate School.
In the summer of 1974, in response to community concern,
the school board decided that more emphasis should be placed on basic
skills (language arts, reading, math and social science), and that
elective subjects should be deemphasized. They also decided that school
schedules should be more uniform throughout the district. In the fall
of the 1975-76 school year, the district superintendent directed inter-
mediate school principals to prepare school schedules for the 1976-77
school year to implement these goals. The school schedule is the principal's
responsibility.
On November 26, 1975, the faculty council8 at Wilson Inter-
mediate School began discussing alternative schedules for the next school
year. The scheduling change was discussed at three faculty council meet-
ings in December, January and February of the 1975-76 school year. The
alternatives eventually were narrowed down to two: "Plan 1" by which all
teachers would have a constant or "outside" preparation period during the
first period of the day, and "Plan 2" by which teachers' preparation
periods would rotate throughout the school day. The principal at Wilson
Intermediate School, John Cowden, indicated as early as the November 1975
faculty council at Wilson school implements the district's "participatory
management" policy, one of the purposes of which is "to assure equal
teacher involvement ... in (p)lanning the instructional program." The
council acts in an advisory capacity to the local school administration.
There is no evidence in the record that the faculty council ever made a
recommendation on the Plan 1-Plan 2 issue.
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faculty council meeting that he favored Plan 1. William Chapman, the
faculty council president and Federation representative at Wilson School,
favored Plan 2. The remainder of the faculty was split.
During the school year, the principal conducted a survey
among the faculty to solicit their priorities on educational objectives.
The results indicated that the faculty's top priorities were
instruction in basic subjects and reduced class size. The principal's
concerns were the same. During the 1975-76 school year, class size in
basic subjects was approximately 31. Under Plan 2 in the 1976-77 school
year, it was estimated that class size would continue to be about the
same. Under Plan 1, class size would be reduced to 24.
At a March 3, 1976 faculty meeting, a faculty vote on Plans
1 and 2 was scheduled. Even though nothing specific was told the faculty
based on the fact that the two plans had been developed and debated by
the faculty for a number of months and the fact that a vote was to be
taken, some faculty members at Wilson School believed that the vote
would be decisive. The February 25, 1976 faculty council minutes,
signed by William Chapman, indicated there would be a faculty "vote
preference". The vote by secret ballot was approximately 21 to 17
in favor of Plan 2. After the vote, Mr. Cowden, the principal, charac-
terized the vote as the faculty's "recommendation" and said he would
announce his decision in a few days.
,
At a March 10, 1976 faculty meeting, Mr. Cowden announced
that he had selected the Plan 1 instructional schedule, which eventually
was implemented at Wilson School at the start of the 1976-77 school year
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(September 1, 1976). During the 1976-77 school year under Plan 1,
there are 260 instructional minutes per day and the principal requires
teachers to arrive at school at 8:10 a.m.9 and they may leave at 3:05 p.m.
The new schedule applies to all teachers at Wilson School. During the
1975-76 school year, the teachers' workday was from 8:00 a.m. - 3:10 p.m.
with 253 instructional minutes.
At the other three intermediate schools in the district,
the starting and dismissal times and instructional day for the 1976-77
school year are as follows:
Juan Cabrillo Intermediate School: 8:00 a.m.-3:15 p.m.,
260 minutes
Patrick Henry Intermediate School: 8:10 a.m.-3:15 p.m.,
260 minutes
Curtis Intermediate School: 8:10 a.m. -3:15 p.m,
288 minutes.
At Curtis, a constant, "outside prep" schedule similar to the revised
Wilson schedule has been in effect for seven years. At the other two
intermediate schools there was discussion during the 1975-76 school year
concerning adoption of a similar teaching schedule. It was not adopted
by the principal at either school for the 1976-77 school year. At
Cabrillo, the faculty voted against the "outside prep" plan. At Patrick
Henry, there was no vote taken, but the principal solicited faculty input
in making his decision.
Some faculty members at Wilson School who are Federation
members do not like the new teaching schedule, generally for the following
reasons: the instructional period is too short, there is insufficient
time for auxiliary "duties" such as running off copies of materials for
9Although the district's "Certificated Handbook" states that "(t)eachers
are generally expected to be on duty 20 minutes before the first regular
classes begin ...," which the Federation contends would be 7:50 a.m.,
the principal at Wilson school does not require teachers to arrive until
8:10 when the first period preparation begins.
0 	-

class, and extra help to students can cut into the morning preparation
period-
There are 22 Federation members at Wilson School, at Patrick
Henry there are 9, at Cabrillo there are 4, and at Curtis there are 4
or 5. The Federation therefore considers Wilson to be one of its strong-
holds in the district and when the Plan 1 teaching schedule was imposed
at Wilson School contrary to faculty vote, members of the Federation's
executive board thought that teachers in the district would think the
Federation ineffective in supporting its members at Wilson, and the
upcoming election would thereby be influenced. However, no member of the
bargaining unit told this to James Hamm, Federation president. There is
no evidence in the record that the schedule change at Wilson in fact
had such effect.
When William Chapman was first hired in 1971, Mr. Cowden, his
principal, mentioned the existence of only the Association, not the
Federation. When first hired in 1972, Edward Whitehead, another teacher
at Wilson school, specifically asked Mr. Cowden about the Federation .
Mr. Cowden laughed and replied that he didn't think he would be interested
in the Federation because it was small and the Association was the majority
organization in the district. Mr. Cowden's statement concerning the
relative sizes of the Association and the Federation was factually correct.
The district has a grievance policy, which culminates in
advisory arbitration subject to final decision by the school board. A
grievance is defined in pertinent part as a "violation of district rules
and regulations, or of administrative regulations and procedures... ."
-9-

Federation inquired about filing a grievance concerning the teaching
schedule change at Wilson School but was told by Mr. Gervase, adminis-
trator of personnel services, and another district administrator, that
there was no violation of any district policy to grieve. However, the
district superintendent testified that he felt it would have been a
proper subject for grievance if a violation of the district's "participatory
management" policy had been alleged.
b. Failure to meet and negotiate or meet and consult.
The Plan 1 teaching schedule change adopted at Wilson School
for the 1976-77 school year reduced class size. It also changed the
length of the teachers' workday. James Hamm, Federation president, knew
of the proposed schedule change in October or November of 1975, and
William Chapman, the representative at Wilson, kept the Federation informed
throughout. The Federation never requested to negotiate the schedule
change. There is no evidence that the Federation ever requested to meet
and consult concerning the proposed schedule change.
The parties stipulated that neither the Federation nor the
Association is an exclusive representative.
c. Threats, interrogation and harassment of William Chapman.
William Chapman has been the Federation representative at
Wilson School for the past four years. He has represented teachers in
grievances at Wilson as well as at other schools in the district. He
also is the Federation's "labor counselor" and in that capacity represents
the Federation at Central Labor Council meetings. He teaches in the math
department at Wilson School.
- 10 -

After Mr. Cowden decided on March 10, 1976 to adopt the
Plan 1 teaching schedule, Mr. Chapman told him he was going to file
a grievance on the issue. In addition, on August 30, 1976, when
Mr. Chapman reported back to Wilson School after summer vacation,
he told Mr. Cowden that he could not honor the new teaching schedule
and he did not see why he had to be at school by 8:10 a.m.. Mr.
Chapman told Mr. Cowden that he was speaking on behalf of an unspe-
cified group of teachers as well.
Mr. Cowden became upset and told Mr. Chapman that if he
could not support the program at Wilson any better than that, he
would have him punch a time clock, dock him 10 % of his pay and have
to take action on his insubordination.
In the three or four weeks after August 30, 1976, Mr. Cowden
conducted 11 informal observations of Mr. Chapman's classes, each of
a few minutes duration. Mr. Cowden also conducted a formal, "sit-down"
observation of Mr. Chapman, of approximately 15-20 minutes duration,
during "Spirit Week" in late November, 1976. During "Spirit Week"
students and teachers were dressed in costume and a paper drive was
conducted. The students in Mr. Chapman's class were "fired up"
during Mr. Cowden's observation. Previously, Mr. Chapman had extended
an open invitation to Mr. Cowden to come into his classroom at any time.
Mr. Cowden never told Mr. Chapman that he was dissatisfied
with the Spirit Week observation of his class. Mr. Cowden testified
at the hearing that he thought there was "good atmosphere" in the
class. There is no evidence that Mr. Cowden ever said that he was
- 11 -

dissatisfied with Mr. Cowden's teaching this school year. Previously,
he has told Mr. Chapman that he considers him an excellent teacher,
and in the past always has evaluated him as satisfactory or excellent.
Mr. Cowden has not yet evaluated Mr. Chapman this year.
Mr. Cowden informally observed all other math department
members this year, including during Spirit Week, although only Mr.
Chapman had a formal, "sit-down" observation during that time.
In prior years, Mr. Cowden observed Mr. Chapman about four
or five times before evaluating him.
d. Refusal to hire Laura Garton as a regular teacher.
From September, 1974 through January 1975, Laura Garton
taught music, typing and art as a long-term substitute teacher at
Cabrillo Intermediate School. From December 1, 1975 through June, 1976
she taught seven art classes per day as a long-term substitute at Wilson
School. In the summer of 1976, she taught sports, recreation, art and
drama in summer school at Washington Elementary School in the district.
During the summer school session, Barbara Jeffers, the summer
school principal, told Ms. Garton that there was an opening in the
English department at Wilson. Ms. Garton called Mr. Cowden who said
that if she obtained a minor in English there would be a good chance
she would get the job. Ms. Garton took courses over the summer, obtained
an English minor and filed it with the district. She already had a
fine arts major.
On August 27, 1976, Mr. Cowden offered her a long-term sub-
stitute position at Wilson teaching 5 English classes and one art class.
- 12 -

The position was not advertised. It is not district policy to
advertise substitute jobs. The position was classified as sub-
stitute because Mr. Cowden was not sure that enrollment at Wilson
would be sufficient to support a permanent position and in order
to give both Ms. Garton and himself an opportunity to see how
things worked out. Mr. Cowden said that Ms. Garton would have an
"inside track" on the job if it became permanent.
About six weeks into the semester Mr. Cowden determined
that the job would become permanent, but because enrollment had not
yet stabilized he was not sure whether it would be full-time or
part-time. Mr. Cowden informed Ms. Garton that the position would
become a 57 % part-time, permanent position. Ms. Garton checked
with the district office concerning the relative benefits of part-
time versus substitute status. She also talked to James Hamm,
Federation president, who said he would check with the district office
for her.
On Monday morning, September 27, 1976, Mr. Cowden agreed
with Ms. Garton that the correct part-time percentage should be
higher (it eventually was advertised as 64 % ) . After school that
same day, Mr. Cowden called her into the office. He appeared angry
and told her that Mr. Gervase, administrator of personnel services,
had called and said that Ms. Garton had been to see him and others
in the district about the job, that James Hamm also had come to see
him about the job and it appeared that Ms. Garton was ready to grieve
the whole matter. Mr. Cowden said that she should have come to him
first if she had any problems, that he felt she was stabbing him in
- 13 -
.

the back by going to other people, and that she should watch out
who her friends were because they might not really be. At the same
time, Mr. Cowden also informed her that the job would have to be
advertised throughout the district. Mr. Cowden was unaware of any
Federation activities on her part and in fact Ms. Garton is not a
Federation or Association member.
In their September 27, 1976 telephone conversation,
Mr. Gervase determined that Mr. Cowden would have to request that the
position be advertised. It is district policy to advertise teaching
positions if there is an "involuntary transfer pool" of teachers
resulting from discontinuance of classes and to advertise for resource
teacher positions because of Education Code requirements. It is not
usual to advertise teaching positions otherwise. In the case of the
position at issue, the involuntary transfer pool already had been
exhausted and it was not a resource teacher position. Mr. Gervase
testified that he decided to advertise the position because there were
many qualified applicants that he wanted to have an opportunity for
the job. Mr. Cowden testified that he wanted to strengthen the
English department.
Among English department members this year at Wilson,
Edward Whitehead and George Chanpion have English minors only.
Mr. Cowden had asked Mr. Whitehead to be English department chairman.
Charles Shell has no English major or minor, but only a general
credential. He considers English to be his poorest subject and was
reassigned over protest this year to the English department from a
physical education assignment.
- 14 -

Mr. Gervase also told Mr. Cowden that he should set up a
screening committee for the applicants, a procedure not often used
in the past. Ms. Garton was one of five applicants to appear before
the screening committee which, in her case, consisted of Mr. Cowden,
the reading department chairperson, and George Champion, an English
and music teacher who was substituted at the last moment by Mr. Cowden
to replace the English department chairperson who was ill. Mr. Champion
is a Federation member. Before the interview, Mr. Gervase told Ms.
Garton that he hoped she wouldn't be discouraged if she didn't get the
job, and that she should stay with the district. Previously, when she
saw him concerning the part-time job, he told her to come to him first
with any problems. After interviewing the five applicants, the unani-
mous selection of the screening committee was Lillian Jurika because
she had a masters degree in English and seven years' teaching experience
In early November 1976, Mr. Cowden told Ms. Garton that she
did not get the job because they wanted someone with an English major
and more academic background, and that she might have had a better
chance if she had taken English rather than art classes during that
semester. Shortly thereafter, Ms. Garton left her substitute job
at Wilson and Ms. Jurika filled the position, which became a full-time
permanent position.
Since then, Ms. Garton has substituted throughout the
district and specifically at Wilson 10 to 12 times. These short-term
substitute assignments are made through the "substitute desk" at
district offices, usually without the school principal's knowledge.
- 15 -

In the past, however, Mr. Cowden has requested that particular substitutes
not be sent to his school and his requests have been honored by the district.
He did not make such a request in Ms. Garton's case.
On February 9, 1977, prior to testifying at the hearing, Ms.
Garton requested a meeting with Mr. Gervase, who assured her there would
be no "black marks" against her for testifying.
e. Domination and interference with the Independent Teachers' Association
and Wilson School Ad Hoc Committee for Truth in Paper Warfare.
It was stipulated by the parties that the Independent
Teachers Association (hereinafter "ITA") is an employee organization
within the meaning of Government Code §3540.l(d). ITA is an unaffiliated,
local certificated employee organization formed in the district in December,
1976. An article noting its formation, goals and pro tempore officers
appeared in the December 13, 1976 issue of the district's staff bulletin
placed in faculty mailboxes. According to the district superintendent, any
employee organization can request to have such informational notices placed
in the staff bulletin and on occasion such organization notices have appeared
in past staff bulletins.
On February 1, 1977, ITA sent a letter to the school board
expressing, among other things, 100% support for the school board. The
letter was signed by Barbara Jeffers on behalf of ITA. Barbara Jeffers is
the treasurer pro tempore of ITA.
In the spring of 1974, Barbara Jeffers was elected a second
vice-president of the Federation. She was named as such in an October
15, 1975 letter from James Hamm, Federation president, to the district
superintendent, in which the Federation filed for recognition as an
employee organization in the district for the 1975-76 schoolyear.
Sometime in the, fall of 1975 Barbara Jeffers told William Chapman that
- 16 -

she had other commitments and did not want to continue as Federation
vice-president.
In the winter of 1975, when she was selected as summer school
principal for the 1976 summer session, Mr. Hamm remarked to her that a
Federation member was selected for the position. On February 25, 1976,
she signed a "petition card" authorizing the Federation to represent her
in collective negotiations, and around the same time, she also distributed
Federation petition cards to other teachers at Wilson school. She resigned
the vice-presidency post on October 31 or November 1, 1976.
In the summer of 1975, Barbara Jeffers acted as an assistant
to John Cowden, who was a summer school principal. In the summer of
1976, she was a summer school principal herself. In the spring, she
spent about 20-25 hours working on the summer school program, schedule
and curriculum. She interviewed about 20 teachers and recommended
hiring six, who were in fact hired. Within the District's priority
system for selecting summer school teachers, she recommended the hiring
by priority of all applicants with elementary teaching credentials.
During the summer session, she evaluated the six teachers. Summer
school teachers are not in the certificated bargaining unit. Summer
school is a half-day, five week session. Barbara Jeffers again will be
a summer school principal this coming summer.
The District has not designated Barbara Jeffers, nor summer
school principals, as management or supervisory.
From about November, 1976 until February, 1977, Barbara Jeffers
was assigned to the District office to research and write grant applica-
tions for federal projects. She did not sign the applications. She
- 17 -

received her regular teaching salary during this period and was
assigned back to Wilson school shortly before this hearing.
In 1973, Barbara Jeffers was assigned to a counseling
position at Wilson school for four or five weeks as a temporary
replacement for an ill counselor. There was one other qualified
candidate, and Barbara Jeffers was recommended by the vice-principal
and the two other counselors.
In the first quarter of the 1976-77 school year, Barbara
Jeffers was given an extra preparation period to prepare for the
Career Education class she had been given as a new assignment. Some
other teachers at Wilson school also have an extra preparation period
this year, including some Federation members.
Barbara Jeffers is the certificated employee representative
on the district's Affirmative Action Committee. She was urged to take
the position by the Federation's executive board.
Barbara Jeffers has applied to the district and been rejected
for the positions of principal, dean of girls and resource specialist.
The only evidence in the record concerning the Wilson Inter-
mediate School Ad Hoc Committee for Truth in Paper Warfare is that it
is run by one person, Bob Sherrard, and that Barbara Jeffers attended
one meeting in which a letter was drafted to all certificated employees
in the district asking them to attend a meeting at Wilson school con-
cerning the rivalry between the Federation and the Association.
DISCUSSION
a. Teaching schedule change at Wilson School.
- 18 -

(1) The unfair charges are not barred by the six-month
limitations period.
The initial decision to adopt the Plan 1 teaching schedule
at Wilson school was made by the principal on March 10, 1976. The
unfair charge was filed on September 15, 1976, more than six months
thereafter. Respondent contends that the charges related to the
teaching schedule change are therefore barred by Government Code
§3541.5 (a) (1) which provides that the board shall not:
"issue a complaint in respect of any
charge based upon an alleged unfair
practice occurring more than six months
prior to the filing of the charge... ."
The language of section 3541.5 (a) (1) is almost exactly
the same as section 10(b) of the Labor Management Relations Act (LMRA).
Interpretation of the federal law by the NLRB and the courts therefore
serves as guidance in interpreting the language of section 3541.5 (a) (1).
Fire Fighters Union v. City of Vallejo (1974) 12 C. 3d 608, 615-17,
116 Cal. Rptr. 507.
In the present case, the principal's March 10 decision was
an informal one. No official action was taken beyond the announcement
of his decision to the Wilson school faculty. The principal could
- 19 -

have changed his mind any time prior to actual implementation of
the schedule change on September 1, 1976. If he had done so, any
previously-filed unfair practice charges could have been mooted.
It was implementation of the schedule change, and not the initial
informal decision, which created the allegedly onerous working con-
ditions for Wilson School faculty, and from which stemmed the alleged
effects on the Federation and the election. Thus, this is not a case
in which an apparently lawful action within the six-month limitation
period is charged to be an unfair practice only through reliance on
actions occurring prior to the six-month period as in Local Lodge 1424
y. NLRB (1960) 362 U.S. 411, 45 LRRM 3212. Rather, although the analogy
is by no means perfect, the instant case is closer to the facts in
NLRB v. Plumbers, Local 214 (7th Cir. 1962) 298 F. 2d 427, 49 LRRM
2519. In that case, more than six months prior to filing of the charge
a union unlawfully demanded the discharge of a non-union employee,
but the discharge itself was within the limitation period. The court
held the charge to be timely filed.
Therefore, it is found that in this case the date of imple-
mentation of the schedule change, September 1, 1976, is an appropriate
time from which the six-month limitation period should run.
Accordingly, the unfair practice charges were timely filed.
(2) The charging party was not required to exhaust the
district's grievance procedure prior to filing the unfair practice
charge.
- 20 -

In its brief, respondent contends that administrative
remedies must be exhausted prior to resorting to extra-judicial
relief. In support of this proposition, respondent cites Cone v.
Union Oil Co. (1954) 129 C A . 2d 558, 277 P. 2d 464 and Abelleira
v. Court of Appeal (1941) 17 C. 2d 280, 109 P. 2d 942. Respondent
is incorrect; these two cases stand only for the well-established
proposition that administrative remedies must be exhausted before
resort to judicial relief. No authority has been found extending
this proposition to include a requirement that local administrative
remedies must be exhausted before requesting relief from a state
agency such as EERB which itself conducts administrative proceedings.
Therefore, charging party was not required to exhaust the
district's grievance machinery prior to filing its unfair practice
charge for the reasons advanced by respondent. In view of this
conclusion, it is unnecessary to determine whether the teaching
schedule change at Wilson School was a grievable matter under the
district's policy.
11
(3) Respondent did not commit an unfair practice by
changing the teaching schedule at Wilson School.
The theory upon which the Federation predicates its charges
concerning the teaching schedule change at Wilson School is that
since Wilson School is a Federation stronghold, the schedule change
was intended to discriminate against Federation members at the school,
and in addition, members of the bargaining unit would think the
Federation ineffective in representing its members so that
-'-•'-Respondent does not argue that this case involves contract grievance
machinery under Gov. C. §3541.5 (a) (2).
- 21 -

Federation membership would be discouraged and the upcoming
representation election would be influenced.
As to the contentions that Federation membership would be
discouraged and the representation election influenced, there is no
evidence that any member of the negotiating unit thought the Federation
ineffective because the schedule change at Wilson School was put into
effect over the faculty's vote. In fact, the only evidence on this
point is contrary; no member of the negotiating unit told James Hamm,
Federation president, that he or she felt that way. Nor is there
any basis for finding that this would be the natural and probable
consequence of the schedule change. Other than the fact that William
Chapman, the Federation representative at Wilson School, was faculty
council president and opposed the schedule which eventually was adopted,
there is no evidence that the Federation ever intervened or took up
the issue on behalf of its members. There similarly is no evidence
that negotiating unit members saw it as a Federation issue. Indeed,
the testimony establishes that the dispute over the Plan 1 - Plan 2
issue at Wilson School was centered on academic, not organizational
concerns.
In essence, charging party asks us to draw an inference
that Federation membership was discouraged and that the election
would be influenced solely from the fact that Wilson School is a
Federation stronghold. Assuming for the sake of argument that
members of the negotiating unit do in fact view Wilson as a Federation
stronghold, on this record this inference alone is insufficient to
sustain the charging party's burden of proving an unfair practice
- 22 -

was committed. (EERB Regulation 35027).
With respect to the charge that the Wilson School schedule
change was adopted for the purpose of harassing Federation members,
the evidence shows that the schedule change proposal was initiated
in the fall of 1975 in response to academic concerns on the part of
the school board. From the start of discussions at Wilson School,
well before he could have known how the faculty would vote, John
Cowden, the principal, indicated he favored the schedule which he
eventually adopted. Plan 1 results in smaller class size than
Plan 2, a high priority of both the principal and faculty. The
new teaching schedule does not result in a longer school day or
instructional day for Wilson teachers as compared to teachers at
the district's other intermediate schools. In fact, the teachers
at Wilson have a shorter day than teachers at all the other inter-
mediate schools and their instructional day (teaching time) is the
same as at two of the schools and shorter than the third.
It is true that some Wilson faculty members who are
Federation members do not like the new schedule. But the faculty
vote was close, 21 to 17, and it must be assumed that many faculty
members are in favor of the new schedule The schedule of course
affects all teachers equally without regard to organizational
affiliation.
Therefore, it cannot be said that the schedule change at
Wilson School was intended to harass Federation members. While a
few years ago Mr. Cowden did indicate a preference for the Association
over the Federation, it appears that his remarks were prompted by
- 23 -

the Federation's lack of strength at that time. With respect to
the schedule change, there is no evidence that Mr, Cowden was moti-
vated by other than academic concerns,
b. Respondent did not commit an unfair practice by failing to meet
and negotiate or meet and consult with. Federation on the Wilson School
schedule change.
For purposes of this decision, it is assumed without deciding
that the teaching schedule change at Wilson School is within the scope
of representation (Government Code §3543.2) and subject to negotiation.
However, only an exclusive representative has the right to meet and
negotiate (Government Code §3543.5 (c)) and conversely, the district
only is required to negotiate with an exclusive representative (Govern-
ment Code §3543.3). It was stipulated that the Federation is not an
exclusive representative. Moreover, an employer is obligated under
Government Code §3543.3 to negotiate only "upon request" and the Federation
never made such a request. Therefore, it was not an unfair practice
to adopt the schedule change without negotiating with the Federation.
By its oral amendment, Federation contends that prior to
selection of an exclusive representative, its right to represent its
members in their employment relations with the district under Govern-
ment Code §3543.1 (a) includes the right to "meet and consult" on
items within the scope of representation. It is unnecessary to
decide whether the right to meet and consult is included within the
scope of representation because there is no evidence that the Federation
- 24 -

ever requested to meet and consult on the schedule change at Wilson
School, even though it had ample notice and opportunity, and therefore
it must be deemed to have waived whatever right it had in that regard,
c. Respondent did not threaten, interrogate or harass William
Chapman because of his Federation activities.
The evidence of threats by Mr. Cowden against Mr. Chapman
is that at the start of the current school year, Mr. Cowden threatened
to have Mr. Chapman punch a time clock, dock him 10% of his pay and
take action for insubordination if Mr. Chapman would not honor the
new teaching schedule as he said he would not. Although Mr. Chapman
indicated he was speaking on behalf of other teachers as well, he did
not say that he was acting in his capacity as a Federation representative
or that he was specifically representing Federation members. Rather,
the evidence indicates that Mr. Cowden's angry response resulted from
what he considered to be proposed insubordination by Mr. Chapman.
The Federation charges that in the 3 or A weeks immediately
after this confrontation, Mr. Cowden harassed Mr. Chapman by observing
his class 11 times. Mr. Cowden also conducted a "sit-down" observation
of Mr. Cowden during ''Spirit Week" when the class was "fired up".
While it appears that Mr. Cowden observed Mr. Chapman's classes some-
what more than is usual, the observations were only of a few minutes
duration and Mr. Cowden has not made any negative comments this year
concerning Mr. Chapman's teaching and previously always has rated him
well.
Furthermore, there is no evidence linking the alleged
harassment to Mr. Chapman's Federation activities save for the
- 25 -

Federation's contention that the confrontations between Mr. Chapman
and Mr. Cowden over the schedule change issue were so motivated.
Having found in both instances that Mr. Cowden's motivations were
otherwise, there is no basis for charging that the alleged harassment
of Mr. Chapman was because of his Federation activities.
There is no evidence in the record that Mr. Chapman ever
was interrogated concerning his Federation activities,
d. Refusal to hire Laura Garton.
(1) Laura Garton is a protected employee under the EERA.
Respondent argues that because Laura Garton was a substitute
teacher, she is not entitled to the protection of the EERA's unfair
practice provisions. In support of this contention, respondent cites
the board's decisions in Belmont Elementary School District (EERB Decision
No. 7, December 30, 1976) and Petaluma City Elementary and High School
Districts (EERB Decision No. 9, February 22, 1977) in which long-term
and day-to day substitutes were not included in the same negotiating
unit as "regular" teachers. As respondent notes, the board did not
decide in these cases whether these substitutes were "employees"
under the EERA.
Respondent also cites Bernard T. King, Esq. (1973) 6 PERB
3132 in which the New York Public Employment Relations Board held
that per diem substitutes, the majority of whom worked less than one
quarter of the school year and whose return rate was under 40%, are
not "public employees" under New York's Taylor Law. Like Government
Code §3540.1 (j), the definition of "public employee" under the Taylor
Law is broad.
- 26 -

However, in at least two other states with similarly
broad definitions of "employee", opposite results have been reached.
In Pennsylvania, per diem substitutes who work more than 22 days
were held to be "employees." Philadelphia School District (1975) 5
PPER 113. In Oregon, any substitute teacher who worked at all during
the previous year was held to be an "employee." Eugene Substitute
Teacher Organization v. Eugene School District 4-J (1976) 1 PECBR
716, 725-6. See also, Town of Lincoln (1975) 1 MLC 1422, in which
the Massachusetts Labor Relations Commission held that "call-fire-
fighters" , even though casual employees and excluded from the bar-
gaining unit, were "employees" under the Act. Under the National
Labor Relations Board (NLRA), cf. Soss Manufacturing Co. (1944)
56 NLRB 348, 14 LRRM 109 in which supervisors excluded from the
bargaining unit nevertheless were entitled to protection of the
NLRA's unfair labor practice provisions.
Moreover, the above decisions concern per diem or day-to-day
substitutes. Ms. Garton was classified as a "long-term" substitute.13
During the last two school years, she taught 50% or more of the school
term. Her employment relationship with the district therefore was
more continuing and substantial than that of day-to-day substitutes.
Not only was Ms. Garton a "long-term substitute" but under
the allegations of the unfair charge, she also was an applicant for a
Education Code does not distinguish between day-to-day and long-
term substitutes, but on the record it is unclear that Ms. Garton
was properly classified as a substitute, rather than temporary
employee , since apparently she was not filling the position of a
"regularly employed person absent from service." Ed. C. §44917;
see also, §44919, 44920, and 44852. The Board has included tem-
porary employees in classroom teachers' negotiating units. (Belmont,
supra, and Grossmont Union High School District, EERB Decision No. 11,
March 9, 1977) and therefore temporary employees must be protected
employees under the unfair practice provisions of the EERA.
- 27 -

regular teaching position. Under §8(a)(3) pf the NLRA, job appli-
cants are protected against discrimination in hiring. Phelps Dodge
Corp. v. NLRB (1941) 313 U.S. 177, 8 LRRM 439. In the Phelps Dodge
case, the Supreme Court held that the phrase "discrimination in
regard to hire" in §8(a)(3) protects job applicants as well as those
already employed.
The EERA contains no language analogous to §8(a)(3) of the
NLRA, and §8(a)(3) by its terms is not limited to discrimination
against "employees". But a violation of §8(a)(3) constitutes a deri-
vative violation of §8(a)(l) (3 NLRB Annual Report 52 (1939)),
which section is analogous to Government Code §3543.5(a) and like
§3543.5(a), is limited to interference with, restraint or coercion
of "employees".14
Therefore, it is found that Laura Garton is a protected
employee for purposes of an unfair practice charge brought under
Government Code §3543.5(a).15
14 4We do not discuss here the implications of the fact that as defined
in §2(3) of the NLRA, "employee" is not "limited to the employees
of a particular employer."
M
- 28 -
1
possibly troublesome question arises as to the Federation's
standing to represent Ms. Garton as a party to the proceedings on
the §3543.5(a) charge since she is not a Federation member and the
Federation, a non-exclusive representative, is expressly given the
right under Gov. C §3543.1(a) only to represent its members. Only
the Federation and not Ms. Garton is named as a charging party, so
it cannot be said that the Federation is acting only as Ms. Garton's
agent in presenting a case on her behalf. Nevertheless, since none
of the parties have objected to the Federation's standing, nor has
s. Garton, this issue is merely noted but will not be pursued. In
the hearing officer's opinion, any possible defect could have been
remedied by naming Ms. Garton, with her consent of course, as a
charging party.

The Federation also charges that the refusal to hire Laura
Garton denied the Federation rights guaranteed to it under the EERA
in violation of Government Code §3543.5(b). Insofar as the alleged
discrimination against Ms. Garton resulted in prejudice to the
Federation's rights under the EERA, her employee status is irrelevant.
To hold otherwise might permit an employer to give preference in hiring
to members of one organization over another, and the organization dis-
criminated against would have no remedy under the EERA. As the Supreme
Court stated in the Phelps Dodge case:
"Discrimination against union labor in
the hiring of men is a dam to self-orga-
nization at the source of supply."
313 U.S. 177, at 185.
(2) Respondent's failure to hire Laura Garton as a regular
employee was not because of her Federation-related activities or to
discourage Federation membership.
It would appear that through the morning of September 27,
1976, barring unforseen circumstances, Mr. Cowden intended to give
the regular position to Ms. Garton. However, after school that same
day, he informed her that the job opening would have to be posted.
The intervening circumstance was the phone call to Mr. Cowden from
Mr. Gervase, personnel administrator. Mr. Gervase said that Ms. Garton
had been in to see him and others about her job, that Mr. Hamm also had
come to see him on her behalf, and that it looked like Ms. Garton was
ready to grieve the whole matter. Coupled with the fact that posting
a job of this kind was unusual, this circumstantial evidence creates
some suspicion.
But as charging party intimates in its closing brief, the
- 29 -

alleged unfair practice was that Ms. Garton was required to compete
for the job, and not that she was not eventually selected. In any
event, it appears that the screening committee procedure itself was
fairly conducted. Since the decision to advertise the job was made
by Mr. Gervase, and not Mr. Cowden, we must focus on the former's
behavior and motivation. Mr. Cowden's actions after the telephone
conversation are irrelevant.
Whether or not Ms. Garton actually was discriminated against,
the only evidence that any such discrimination resulted because of
protected activities under the EERA is that Mr. Gervase decided to
advertise the job (1) after Mr. Hamm had come to see him, and (2) after
he mentioned to Mr. Cowden that he thought that Ms. Garton was ready
to file a grievance.
On the other hand, Mr. Gervase testified that he wanted to
give other qualified applicants an opportunity. He urged Ms. Garton
not to be discouraged and to stay with the district if she were not
selected by the screening committee. He also urged Ms. Garton to
come to him with any problems. There is no basis for finding that
Mr. Gervase was insincere. Since November,1976, Ms. Garton has
continued to work fairly regularly in the district as a substitute.
Before testifying at the hearing, Mr. Gervase assured Ms. Garton that
she would not be penalized for testifying. Ms. Garton is not a
Federation member.
Based on the evidence in the record, it is found that
charging party has not sustained its burden of proving that the district
- 30 -

committed an unfair practice under Government Code §3543.5(a) or (b)
by failing to hire Ms. Garton in a regular position,
e. Respondent did not dominate or interfere with the formation or
administration of either the Independent Teachers Association or the
Wilson Intermediate School Ad Hoc Committee for Truth in Paper
Warfare, nor did it contribute financial or other support.
The basis upon which Federation contends that the district
dominated and interfered with the formation and administration of
the Independent Teachers Association (ITA) is that Barbara Jeffers
was a founding member. Federation contends that Barbara Jeffers
is a management or supervisory employee and an agent of management.
Government Code §3543.5(d) prohibiting employer domination,
interference or support of an employee organization is similar to
§8(a)(2) of the NLRA. There is no evidence, as required to show
unlawful domination, that ITA was formed and structured by the district
or that the district dominated the administration of ITA to the
extent that employees' freedom of choice was influenced. Hertzka
and Knowles v. NLRB (9th Cir. 1974) 503 F. 2d 625, 87 LRRM 2503,
2507, cert. denied. However, participation in the affairs of an
employer organization by supervisory personnel, even though
unauthorized and unratified by the employer, can be illegal inter-
ference.16 Plumbers Local 636 v. NLRB (DC Cir. 1961) 287 F. 2d
354, 47 LRRM 2457; NLRB v. Park Edge Sheridan Meats, Inc. (2d Cir.
1963) 323 F. 2d 956, 54 LRRM 2411.
1 6 It should be kept in mind that supervisors are entirely excluded
from coverage under the NLRA (§14(a)), whereas under the EERA, the
only restrictions are that supervisory employees must belong to
a separate unit and be represented by a different employee orga-
nization (Gov. Code §3545 (b)(2)).
- 31 -

The Federation contends that special treatment has been
accorded Ms. Jeffers including her recent district assignment, extra
preparation period, Affirmative Action Committee membership, and temporary
counseling assignment. See Findings of Fact, pp. 17-18, ante
---. But it
is apparent that none of the above involved any duties indicative of
management or supervisory status as set forth in Government Code §3540.l(m),
nor do the facts demonstrate that these assignments made her an agent of
management. Accordingly this opinion focuses on her employment as a
summer school principal.
The Federation's contention that Ms. Jeffers is a management
or supervisory employee primarily rests on the fact that she serves
as a summer school principal. Ms. Jeffers functions as a regular employee
during the regular school year. As a summer school principal, Ms. Jeffers
effectively recommended hiring of summer school teachers. However, she
had no discretion to choose one applicant over another. Under the district's
priority system, she had to choose by priority number all applicants
with the necessary elementary credential. Therefore, her authority to
recommend hiring was "... of a merely routine... nature, ... (not) requir(ing)
the use of independent judgment." Government Code §3540.l(m).
Ms. Jeffers also evaluates summer school teachers, but there
is no evidence as to how these evaluations are used. Unless an evaluation
forms the basis for affecting an employee's status the authority to evaluate,
by itself, does not indicate supervisory status. Summer school teaching
service does not count towards attainment of tenure in the district.
Education Code §44913.
- 32 -

Therefore, Ms. Jeffer's summer school duties are insufficient
to qualify her as a supervisor.
The evidence of management status is that Ms. Jeffers
developed the summer school schedule and curriculum.
These duties concern nonunit personnel and are outside the scope of
her regular district assignment. She testified that she spent only
20-25 hours, prior to the summer school session in such preparation.
There was no evidence as to the degree of autonomy she exercised in
performing these duties. There also was no evidence as to the manner
in which she actually administered the program during the five week
summer session.
Therefore, there is a lack of evidence as to the nature of
her summer school duties and moreover, the total time spent performing
these duties (5 week summer session plus 20-25 hours of preparation)
represents a minor portion of Ms. Jeffers' work time. Even if Ms. Jeffers
performed some management functions, such functions are de minimus
when compared to her full-time duties as a regular employee in the
district's regular program.
Accordingly on these facts it is found that Federation has not
sustained its burden of proof that Ms. Jeffers' summer school duties
give her "significant responsibilities for formulating district policies
or administering district programs" (emphasis added) within the
meaning of Government Code Section 3540.l(g) defining "management
employee."
- 33 -

It is ironic to note that in the summer of 1976 when she served
as a summer school principal, Ms. Jeffers was a Federation member and
officer. ITA had not yet been formed. As respondent notes, if
Ms. Jeffers in fact were management or supervisory, Federation's own
organizational efforts could be jeopardized. Ms. Jeffers has yet to
serve or perform duties as a summer school principal since becoming
affiliated with ITA.
With respect to Federation's charge that the district contributed
financial or other support to ITA, the only evidence is the announcement
of its formation in the district's staff bulletin and the use of district
facilities for meetings. On occasion, other employee organizations'
notices have appeared in the staff bulletin. In addition, other employee
organizations also have been permitted to use district facilities for
activities such as meetings.15
Under the NLRA, support to an employee organization, consisting
of use of the employer's time and property, is not a per se violation
15 Government Code Section 3543.1(b) gives employee organizations the
"right to use institutional facilities at reasonable times for the
purpose of meetings... ."
- 34 -

of Section 8(a)(2) but subject to a de minimus rule. Coamo Knitting
Mills Inc. (1964) 150 NLRB 579, 582, 58 LRRM 1116; Duquesne University
(1972) 198 NLRB 891, 81 LRRM 1091.
Accordingly, although the staff bulletin may have gone a little
overboard in its emphasis on ITA's goals and its dissatisfaction with
the Federation and Association, any support rendered ITA by the bulletin
is de minimus and does not constitute illegal support under Government
Code Section 3543.5(d).
Furthermore, it appears that ITA was given no special advantages
not also extended to other employee organizations. Such even-handed
treatment does not constitute unlawful support under Government Code
Section 3543.5(d). Ballston-Stillwater Knitting Co. (2d Cir. 1938) 98 F. 2d
758, 2LRRM 655, 657-8.
There is insufficient evidence to make even the preliminary
determination as to whether the Wilson School Ad Hoc Committee for
Truth in Paper Warfare is an employee organization within the meaning
of Government Code Section 3540.l(d). Therefore, no domination,
interference or support is found.
- 35 -

CONCLUSIONS OF LAW
a. Teaching schedule change at Wilson Intermediate School:
(1) The unfair practice charges concerning the teaching
schedule change at Wilson Intermediate School are not barred by the
six-month limitation period of Government Code §3541.5(a)(1).
(2) Charging party was not required to exhaust the district's
grievance procedure prior to filing the unfair practice charges.
(3) Respondent did not violate Government Code §§3543.5(a)
or (b) by changing the teaching schedule at Wilson Intermediate School.
b. Failure to meet and negotiate or meet and consult:
(1) Respondent did not violate Government Code §§3543.5(b)
or (c) by failing to meet and negotiate with charging party over the
teaching schedule change at Wilson Intermediate School because
charging party was not an exclusive representative with the right to
meet and negotiate.
(2) Respondent did not violate Government Code §3543.5(b)
by failing to meet and consult with charging party because charging
party did not request to meet and consult and therefore waived what-
ever rights it had in that regard.
c. William Chapman:
(1) Respondent did not threaten, interrogate or harass
William Chapman because of his Federation activities in violation
of Government Code §§3543.5(a) or (b).
-36-
,

I
d. 	Laura Garton:
( 1 ) 	Laura Garton is a protected employee under the
unfair practice provisions of 	the EERA .
(2 ) 	Respondent did not refuse 	to hire Laura Garton as a
regular employee be c ause of her Federation-related activities, 	or
to discourage Federation membership, 	in violation of Government
Code §§3543. 5 {a ) 	or 	(b ) .
e . 	Domination and 	interference with employee organizations:
( 1 ) 	Respondent did not dominate or 	interfere with the
formation or administration of 	the 	ITA, 	or contribute 	finan c ial 	or
other support 	thereto, 	in violation of Government Code 	§§3543.5(b ) 	and
( d ) .
(2 ) 	Respondent did not dominate or interfere with the
formation or administration of 	the Wilson 	Intermediate School Ad
Hoc Committee 	for Truth 	in Paper Warfare 	in violation of Government
Code §§3543 .5 (b ) 	and 	(d ) .
ORDER
The unfair prac.tice charges 	filed by the 	Santa Clara
Federation of Teachers, 	Local 2 3 93, AFT, AFL-CIO are hereby dismissed.
Pursuant to Title 8, 	Cal . 	Admin. 	Code §35029, 	this re c o-
mmended de c ision and order 	shall become 	the 	final decision and order
of 	the Board 	itself on ~~-J u__n_e __l_3~' ------'--1977 unless a 	party
files a 	timely statement of exceptions. 	See 8 Cal. 	Admin . 	Code
§35030.
----------..,,.
- 	-
-------GERALD A. 	BECKER
Hearing Offi c er
Dated: May---2.l:.., 	1977.
37