Santa Monica Community College District (PERB 0103E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA MONICA COLLEGE PART-TIME
FACULTY ASSOCIATION, CTA/NEA,
Charging Party,
v.
SANTA MONICA COMMUNITY COLLEGE
DISTRICT,
Respondent;
SANTA MONICA COLLEGE FACULTY
ASSOCIATION,
Intervenor.
)
)
)
) Case Nos. LA-CE-41
LA-CE-57
PERB Decision No. 103
September 21, 1979
)
)
)
)
)
)
)
)
)
)
)
)
)
Appearances: Robert M. Dohrmann and Howard M. Knee, Attorneys
(Schwartz, Steinsapir, Dohrmann & Krepack)for Santa Monica
College Part-Time Faculty Association CTA/NEA; Lee T. Paterson,
Attorney (Paterson & Taggart) for Santa Monica Community College
District; Walter C. Appling, Attorney (Richman & Garrett) for
Santa Monica College Faculty Association.
Before Gluck, Chairperson; Gonzales and Moore, Members.
DECISION
This case involves two charges filed by the Santa Monica
College Part-Time Faculty Association, CTA/NEA (hereafter
UFA)l against the Santa Monica Community College District
(hereafter District). The first charge, as amended, alleged
1After this charge was fi , the charging party changed
its name to Santa Monica College Uni Faculty Association.

that
	the
	District
	violated 	sections
	3543.5
(a), 	(b),
	(c),
	and
	(d)
of
	the 	Educational
	Employment
	Relations
	Act2	
in
	that
	it:
1.
	Refused
	to
	release
	information 	concerning
	a
	reduction 	in
staff
	to
	enable 	charging
	party 	to 	represent
	its
	members;
2.
	Conducted
	surveillance 	of
	a
	meeting
	held
	by
	UFA;
3.
	Interfered
	with
	and
	dominated
	UFA
	by
	demanding
	that
California
	Teachers
	Association
	revoke
	UFA's
	charter;
4.
	Encouraged 	membership
	in 	another
	employee
	organization;
5.
	Undermined
	the
	majority's
	support
	of
	UFA, 	by
discriminatorily
	granting
	a
	pay
	raise
	to
	employees
represented
	by
	another
	employee
	organization
	while 	denyingsuch
	a
	raise
	to
	employees
	represented
	by
	UFA;
2The
	Educational
	Employment
	Relations
	Act
	(hereafter
	EERA)
is
	codified
	at
	Government 	Code
	section
	3540,
	et
	seq. 	All
statutory
	references 	are 	to 	the
	Government
	Code
	unless 	otherwise
indicated.
Section
	3543.5
	provides 	in
	pertinent 	part:
It
	shall
	be
	unlawful
	for
	a
	public
	school
employer
	to:
(a)	
Impose
	or 	threaten 	to
	impose
	reprisals
on
	employees,
	to 	discriminate 	or
	threaten 	todiscriminate 	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
guaran 	to
	them 	by
	this
	chapter.
(c)
	Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
good
	faith
	with 	an
	exclusive 	representative.
(d) 	Dominate
	or
	interfere
	wi
	theformation 	or 	administration 	of
	any
organization, 	or 	contribute 	financial 	or
2

6. 	Refused 	to meet 	and 	negotiate 	in 	good 	faith 	by
conditioning 	a 	salary 	increase 	on 	a 	waiver 	of 	rights 	to
collective 	negotiations.
7. 	Made 	false 	reports 	to 	employees 	on 	the 	status 	of
negotiations 	with 	UFA.
The 	second 	charge 	alleged 	that 	the 	District 	violated
section 	3543.5(a) 	by 	refusing 	to 	rehire 	James 	Shaw 	in 	September
of 	1976.
The 	charges 	were 	consolidated 	and 	a 	hearing 	was 	held 	before
an 	Educational 	Employment 	Relations 	Board3 	hearing 	officer.
The 	hearing 	officer's 	recommended 	decision 	dismissed 	all 	aspects
of 	the 	charges 	except 	those 	relating 	to 	the 	granting 	of 	a 	salary
raise. 	The 	hearing 	officer 	found 	that 	the 	District 	granted 	a
pay 	raise 	to 	full-time 	employees 	and 	failed 	to 	grant 	a 	pay 	raise
to 	part-time 	employees 	because 	UFA 	refused 	to 	waive 	the 	right 	to
negotiate 	collectively over 	wages 	for 	the 	1976-77 	year. 	He 	held
that 	this 	action 	had 	the 	"natural 	and 	probable 	consequence" 	of
encouraging 	membership 	in 	another 	employee 	organization 	and 	of
discouraging 	membership 	in UFA 	in 	violation 	of
section 	3543.S(d). 	As 	a 	proposed 	remedy, 	the 	hearing 	officer
ordered 	the 	District 	to 	cease 	and 	desist 	from 	encouraging
other 	support 	to 	it, 	or 	in 	any way 	encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
3The 	Educational 	Employment 	tions 	Board 	was 	renamed
the 	Public 	Relat 	(here 	ter 	PERB 	or 	Boa
effective 	January 	1, 	1978.
3

membership 	in 	other 	organizations 	in 	preference 	to 	the 	UFA 	and
to 	post 	copies 	of 	that 	order 	at 	each 	campus 	and 	work 	site 	for 	60
calendar 	days.
The 	following 	issues 	are 	raised 	by 	exceptions 	to 	the
recommended 	decision 	taken 	by 	both 	parties;
1. 	Did 	the 	District 	violate 	section 	3543.S(b) 	by 	its 	failure
to 	provide 	UFA 	with 	information 	relative 	to 	the 	layoff 	of
certificated 	employees?
2. 	Did 	the 	District 	violate 	section 	3543.S(a) 	by 	granting
salary 	increases 	to 	full-time 	employees 	but 	withholding
increases 	for 	part-time 	employees?
3. 	Did 	the 	District 	violate 	section 	3543.S(d) 	by 	granting
salary 	increases 	to 	full-time 	employees 	but 	withholding
increases 	for 	part-time 	employees?
4. 	Is 	the 	charge 	that 	the 	District 	violated 	section
3543.S(a) 	in 	dismissing 	James 	Shaw 	barred 	by 	the 	six month
statute 	of 	limitation 	period 	prescribed 	in 	section 	3541.5(a)?4
4section 	3541.S(a) 	states 	in 	pertinent 	part:
(a) 	Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	issue 	a 	complaint 	in 	respect 	of 	any
charge 	based 	upon 	an 	alleged 	un 	practice
occurring more 	than 	six months 	to 	the
filing 	of 	the 	char
4

5.
	Does
	PERB
	have
	the
	authority
	to
	rule
	on
	the
	validity
	of
SB
	1471?5
6.
	For
	the
	violations
	of
	the
	EERA
	found
	in
	this
	case,
	what
are
	the
	appropriate
	remedies?
FACTS
I.
	Representation 	History
The
	Santa
	Monica
	College
	Faculty
	Senate
	was
	established
	in
1968
	to
	provide 	the
	administration
	with
	policy
	recommendations
from
	the
	full-time 	faculty.
	The
	Santa
	Monica
	College
	Faculty
Association
	(hereafter 	Association), 	operated 	as
	an
	arm
	of 	the
Senate,
	with 	the
	same
	slate
	of
	officers.
	With
	the
	advent
	of
	the
EERA,
	the
	Senate
	and
	the 	Association 	separated. 	Part-time
faculty
	were
	not 	included
	in
	either
	the 	Senate 	or 	the
Association.
This
	exclusion 	led 	to 	the
	creation
	of 	the
	Santa
	Monica
College 	Part-Time
	Faculty 	Association 	in
	1975.
UFA
	filed
	a
	representation
	petition
	for
	a
	unit 	to 	include
all
	part-
	and
	full-time 	faculty
	on
	May
	21, 	1976.
	This
	unit
	was
estimated 	to
	total
	790
	faculty.
	UFA's
	petition
	was
	accompanied
by
	proof 	of 	support 	of
	450
	persons, 	of
	whom
	196
	were 	members
	of
the
	UFA.
5
stats.
	1976,
	Ch. 	421. 	This
	amended
	the
	EERA. 	Among
other 	things,
	it
	changed 	the 	operative 	date
	from
	July 	1, 	1976,
to 	April 	1, 	1976,
	of 	provisions 	specifying 	unlawful
	practices
and
	authorizing 	the
	filing 	of 	unfair 	labor 	practice 	charges
within 	six
	months
	of 	occurrence.
5

The
	Association 	intervened
	on
	June
	11
	both
	in
	a
	smaller
	unit
of 	"contract"
	instructors
	(excluding
	part-time
	faculty)
	and
	in
the
	overall 	unit
	for
	which
	UFA
	petitioned.
	It
	showed 	30
	percent
support 	in 	these
	units.
The
	District
	responded
	to
	these
	petitions
	on
	June
	14 	by
doubting 	the
	appropriateness
	of
	a
	combined
	full-
	and
	part-time
unit
	and
	contesting
	the 	majority
	showing
	of
	the
	UFA.
The
	parties
	executed
	a
	consent
	election
	agreement
	on
November
	16,
	1977.
	A
representation
	hearing
	was
	held
	to
determine
	whether
	department
	chairpersons
	would 	be
	in
	the
	unit.
A
final
	consent
	election
	agreement
	was
	signed
	on 	December
	9,
1977.
The
	stipulated 	unit
	included
	all
	certificated 	instructors,
counselors,
	librarians,
	nurses,
	and
	psychologists
	and
	excluded
persons
	employed
	as
	summer
	session
	instructors,
	community
service
	instructors,
	long-term
	substitutes,
	short-term
substitutes,
	and
	part-time 	faculty
	who
	have
	taught 	for
	less
	than
three
	semesters 	out 	of
	the
	last
	six.
An
	election
	was
	held
	on 	March
	16,
	1978.
	The
	Association
	was
certified
	as 	the 	exclusive 	representative
	on
	June 	14, 	1978,
a 	r
	the
	UFA
	withdrew
	its
	objections 	to 	the
	election.
	The
objections
	which 	were 	withdrawn 	did 	not
	relate 	to
	conduct 	which
is
	the 	subject 	of 	the
	sat
	issue 	here.
6

II. 	Charged 	Conduct
A. 	Refusal 	to 	Furnish 	Information
In 	early 	1976, 	UFA 	became 	aware 	that 	the 	District 	planned 	to
reduce 	course 	offerings 	and 	to 	lay 	off 	a 	number 	of 	certificated
staff 	members. 	This 	plan 	was 	a 	result 	of 	a 	new 	state 	limit 	on
community 	college 	growth. 	Beginning 	on 	March 	29, 	1976, 	UFA
requested 	information 	from 	District 	administrators 	pertaining 	to
the 	anticipated 	layoff 	of 	part-time 	instructors. 	Following 	the
receipt 	of 	termination 	letters 	by 	144 	part-time 	faculty, 	UFA
made 	additional 	requests 	for 	information. 	Among 	the 	information
requested 	were 	the 	criteria 	used 	to 	determine 	what 	courses 	would
be 	deleted 	and 	which 	faculty 	would 	not 	be 	rehired. 	UFA
additionally 	requested 	a 	list 	of 	those 	who 	were 	terminated,
along 	with 	data 	on 	their 	past 	service 	and 	class 	loads. 	UFA's
position 	in 	these 	letters 	was 	that 	the 	information 	was 	needed 	to
determine 	whether 	to 	pursue 	administrative 	and 	legal 	remedies
for 	its 	members.
The 	District 	responded 	by 	supplying 	information 	on 	the
extent 	of 	anticipated 	loss 	in 	average 	daily 	attendance 	and 	other
state 	support. 	The 	Distr 	t 	referred 	the 	request 	the
criteria 	to 	legal 	counsel. 	It 	did 	not 	disc 	its 	criteria
until 	the 	hearing 	in 	the 	present 	case. 	The 	District 	also
refused 	to 	release 	the 	names 	of 	termina 	faculty 	and 	the 	other
rsonnel 	informat 	that 	UFA 	reques 	It 	stated 	that 	since
it 	was 	concerned 	about 	the 	privacy 	of 	the 	persons 	involved, 	it
7

would 	release 	the 	material 	only 	if 	it 	was 	requested 	"directly 	by
and 	released 	to 	individual 	faculty 	members."
UFA 	filed 	a 	lawsuit 	against 	the 	District 	on August 	2, 	1976,
seeking 	to 	establish 	that 	certain 	part-time 	teachers 	were
tenured. 	It 	subpoenaed 	the 	information 	it 	had 	earlier 	requested
from 	the 	District 	in 	connection 	with 	the 	suit.
B. 	Discriminatory 	Salary 	Raise
The 	Board 	of 	Trustees 	authorized 	its 	Deputy 	Superintendent-
President 	Dr. 	Moore 	to 	enter 	into 	salary 	discussions 	with 	both
employee 	organizations 	in 	the 	spring 	of 	1976. 	On 	June 	17, 	the
organizations 	were 	requested 	to 	prepare 	salary proposals 	for
both 	full- 	and 	part-time 	instructors 	for 	presentation 	at 	a
special 	meeting 	of 	the 	board 	on 	June 	21.
On 	June 	21, 	both 	UFA 	and 	the 	Association made 	presentations
to 	the 	board. 	UFA's 	proposal 	apparently 	only 	pertained 	to 	part-
time 	employees. 	Subsequently, 	the 	board 	in 	executive 	session
authorized 	Moore 	to 	offer 	a 	salary 	increase 	of 	approximately
8 	percent 	to 	each 	organization 	if 	they 	agreed 	to 	waive 	the 	right
to 	collective 	negotiations 	on matters 	of 	compensation 	for 	the
next 	year.
On 	June 	23, 	Moore 	this 	offer 	to Ms. 	Drummond, 	a
representative 	of 	UFA. 	He 	offered 	the 	same 	raise 	to 	the
Association.
Moore 	met 	in 	wi 	Dr 	on 	June 	25. 	He 	ur 	that 	UFA
accept 	the 	District's 	offer 	and 	waive 	"compensation 	collective
8

bargaining 	for 	the 	year 	1976-77." 	Drummond 	said 	that 	the
executive 	committee 	planned 	to meet 	on 	the 	following 	day. 	Moore
emphasized 	that 	UFA 	should 	respond 	before 	the 	next 	board
meeting, 	scheduled 	for 	June 	28.
Before 	the 	June 	28 meeting, 	UFA 	rejected 	the 	District's
offer. 	The 	letter 	questioned 	whether 	the 	Board's 	offer 	met 	the
public 	notice 	requirements6 	of 	the 	Winton 	Act 	(Ed. 	Code
sections 	13080-13090, 	repealed 	July 	1, 	1976), 	and 	indicated 	that
the 	UFA 	executive 	committee 	was 	prepared 	to 	continue 	negotiating
on 	salaries 	and 	working 	conditions 	throughout 	the 	summer. 	The
letter 	concluded:
We 	were 	available 	throughout 	the 	spring 	to meet
and 	confer 	in 	good 	faith 	with 	representatives
selected 	by 	the 	board 	of 	trustees 	on 	salaries 	and
working 	conditions; 	regrettably, 	you 	have 	chosen
to 	raise 	these 	matters 	during 	summer 	recess
rendering 	consultation 	with 	faculty 	regarding
your 	proposals 	virtually 	impossible. 	Again, 	may
we 	reiterate 	our 	willingness 	to meet 	and 	confer
throughout 	the 	summer 	with 	ratification 	of 	any
agreements 	to 	occur 	at 	the 	beginning 	of 	the 	fall
term. 	To 	insure 	fairness. 	we 	suaaest 	that 	such
meeting 	and 	conferring 	involve 	representatives 	of
all 	other 	employee 	organizations 	representing 	the
faculty.
Unlike 	UFA, 	the 	Association 	accepted 	the 	board's 	offer 	and
signed 	a 	waiver 	of 	its 	right 	to 	collective 	negotiations. 	At 	the
board 	meeting, 	the 	board 	approved 	the 	offered 	raise 	for 	full-
time 	faculty 	only. 	It 	accepted 	Moore's 	recommendation 	to 	take
6winton 	Act, 	Education 	Code 	section 	13089, 	repealed 	ter
July 	1, 	1976.
9

no 	action 	with 	respect 	to 	a 	salary 	increase 	for 	part-time
faculty. 	The 	board 	left 	open 	its 	offer 	to UFA 	until 	midnight 	of
June 	30 	and 	instructed Moore 	to meet 	with 	the 	UFA 	to 	try 	to
obtain 	their 	agreement.
Moore 	met 	with 	the 	UFA's 	executive 	committee 	on 	both 	June 	29
and 	30, 	stating 	that 	he 	was 	not 	negotiating 	with 	them, 	but
merely 	was 	explaining 	the 	board 	offer. 	The 	UFA 	executive
committee 	was 	opposed 	to 	the 	raise 	because 	they 	thought 	it
insufficient 	and 	because 	the 	committee 	did 	not 	believe 	it 	had
the 	authority 	under 	the 	organization's 	constitution 	to 	enter
into 	any 	agreement 	with 	the 	District 	without 	ratification 	by 	the
membership. 	In 	addition, 	the 	executive 	committee 	maintained
that 	it 	was 	without 	power 	to 	take 	action 	on 	behalf 	of 	all 	part-
time 	faculty, 	since 	only 	196 	part-time 	instructors 	were 	members
of 	the 	organization.
Moore 	urged 	that 	the 	committee 	poll 	its membership 	by
telephone. 	The 	committee 	refused 	to 	do 	so. 	The meeting 	ended
without 	agreement.
Following 	the 	expiration 	of 	the 	board's 	offer, 	Moore 	wrote 	a
memo 	on 	July 	2 	to 	the 	"Santa Monica 	College 	Community"
summarizing 	the 	board's 	actions 	The 	memo 	was 	distributed 	to
all 	faculty 	and 	to 	the 	press. 	The memo 	noted 	the 	action 	taken
wi 	re 	t 	to 	f 	t 	facul 	and 	stated 	board 	made
10

the 	same 	offer 	to 	part-time 	faculty 	and 	the 	UFA. 	The 	memo
concluded:
At 	2:10 	p.m., 	June 	30, 	1976 	the 	Part-Time
Faculty Association's 	Executive 	Committee
ended 	two 	days 	of 	discussions 	by 	stating
that 	the 	offer 	from 	the 	Board 	was 	not 	worth
the 	effort 	to 	take 	to 	their 	members. 	The
Board's 	representative 	indicated 	that 	the
offer 	was 	open, 	per 	instructions, 	until
midnight, 	but 	the 	executive 	committee 	of 	the
Part-Time 	Faculty Association 	refused 	the
Board's 	offer 	to 	all 	600 	part-time 	employees
of 	the 	college 	district. 	The 	significance
of 	this 	decision 	is 	that 	the 	pay 	rate 	for
art-time 	em 	lo 	ees 	will 	continue 	at 	$14.75
~er 	hour 	rather 	than 	change 	to 	16.00 	per
our 	effective 	September 	1, 	1976.
The 	Board 	wishing 	in 	good 	faith 	to 	improve
working 	conditions 	prior 	to 	the 	July 	1
collective 	bargaining 	date, 	made 	its
settlement 	with 	the 	full-time 	faculty 	and
tendered 	its 	offer 	to 	the 	Part-Time 	Faculty
Association 	which 	was 	not 	accepted.
[Emphasis 	added.]
The 	record 	is 	in 	conflict 	as 	to 	whether 	the 	executive
committee 	stated 	that 	the 	offer 	was 	not 	worth 	taking 	to 	the 	UFA
membership. 	The 	hearing 	officer 	did 	not 	resolve 	this 	conflict.
C. 	Filing 	of 	the 	Charge 	Concerning 	Shaw's 	Dismissal
James 	Shaw, 	a 	part-time 	instructor 	in 	the 	District, 	received
a 	letter 	from 	the 	District 	on May 	14, 	1976, 	which 	stated 	in 	part
that, 	"This 	is 	to 	inform 	you 	that 	you 	will 	not 	be 	offered 	a
teaching 	position 	for 	the 	fall 	semester 	of 	1976." 	At 	that 	time
he 	had 	some 	suspicion 	that 	he 	was 	being 	singled 	out 	because 	of
his 	activities 	on 	behalf 	of 	UFA.
11

In 	the 	fall, 	Shaw 	attempted 	to 	determine 	whether 	any
instructor 	with 	less 	seniority 	had 	been 	retained 	by 	looking 	at
the 	schedule 	of 	classes. 	The 	charge 	concerning 	his 	dismissal
was 	filed 	January 	10, 	1977.
The 	charge 	is 	resolved 	below 	on 	the 	basis 	that 	it 	was 	not
timely 	filed 	under 	section 	3541.S(a). 	The 	facts 	underlying
Shaw's 	discharge 	therefore 	need 	not 	be 	addressed.
DISCUSSION
I. 	The 	Retroactivity 	of 	the 	EERA
Most 	of 	the 	conduct 	alleged 	in UFA's 	charge 	occurred 	prior
to 	July 	1, 	1976. 	The 	District 	argues 	that 	SB 	14717 	is 	poten-
tially 	unconstitutional; 	that 	its 	application may 	therefore
result 	in 	a 	denial 	of 	its 	rights 	and 	cause 	it 	injury; 	and 	that
PERB 	"has 	an 	obligation 	to 	rule 	on 	the 	issue [of 	its] 	validity .... 11
The 	California Constitution, 	Article 	III, 	section 	3.5
(effective 	June 	1978) 	renders 	PERB 	powerless 	to 	refuse 	to 	en-
force 	a 	provision of 	the 	EERA 	or 	to 	determine 	its 	constitution-
ality. 	That 	provision 	states:
An 	administrative 	agency, 	including 	an
administrative 	agency 	created 	by 	the
Constitution 	or 	an 	initiative 	statute, 	has
no 	power:
(a) 	To 	declare 	a 	statute 	unenforceable, 	or
refuse 	to 	enforce 	a 	statute, 	on 	the 	basis 	of
it 	being 	unconstitutional 	unless 	an
appe 	ate 	court 	made 	a 	determination
7stats. 	1976, 	ch. 	521, 	ante 	at 	fn. 	5.
12

that 	such 	statute 	is 	unconstitutional;
(b) 	To 	declare 	a 	statute 	unconstitutionalt
(c) 	To 	declare 	a 	statute 	unenforceable, 	or
to 	refuse 	to 	enforce 	a 	statute 	on 	the 	basis
that 	federal 	law 	or 	federal 	regulations 	pro-
hibit 	the 	enforcement 	of 	such 	statute 	unless
an 	appellate 	court 	has 	made 	a 	determination
that 	the 	enforcement 	of 	such 	statute 	is 	pro-
hibited 	by 	federal 	law 	or 	regulations.
[Emphasis 	added.]
For 	these 	reasons, 	the 	District's 	objection on 	this 	issue 	is
rejected.
II. 	Refusal 	to 	Furnish 	Information
The 	hearing 	officer 	dismissed 	this 	aspect 	of 	the 	charge
because 	UFA 	was 	not 	the 	exclusive 	representative 	at 	the 	time 	of
the 	charged 	conduct. 	He 	found 	that 	under 	San 	Dieguito 	Unified
School 	District 	(9/2/77) 	EERB 	decision 	No. 	22, 	the 	employer 	is
not 	required 	to 	consult 	with 	a 	nonexclusive 	employee
organization 	with 	regard 	to matters 	affecting 	its 	members.
Analogizing 	to 	federal 	labor 	precedent 	which 	holds 	that 	the 	duty
of 	an 	employer 	to 	furnish 	information 	arises 	from 	its 	duty 	to
bargain 	with 	an 	exclusive 	representative,8 	the 	hearing 	officer
reasoned 	that 	since 	the 	employer 	was 	under 	no 	duty 	to 	consult,
it 	was 	so 	under 	no 	duty 	to 	furnish 	information.
Whether 	or 	not 	the 	employer 	is 	obligated 	to 	consult 	with 	a
nonexclusive 	representative 	under 	EERA, 	is 	a 	question 	separate
8 see 	Curtiss-Wright 	Corp. 	v. 	NLRB 	(3rd Cir. 	1965) 	347 	F.2d
61 	[59 	LRRM 	2433].
13

and
	distinct
	from
	the
	issue 	of
	whether
	an 	employer
	has
	a
	duty
	to
furnish
	information
	upon
	request
	of 	the 	nonexclusive
representative,
	so
	that
	the
	nonexclusive
	representative
	is
	able
to
	determine
	if
	a
	valid
	grievance
	exists,
	and
	to 	represent
	its
members
	in
	that
	grievance.
	Without
	responding
	to 	the
	former
question,
	this
	board
	determines
	that, 	prior
	to
	the
	time
	an
exclusive
	representative
	is
	selected,
	the
	right
	of 	the
nonexclusive
	representative 	to
	present
	grievances
	encompasses
the
	right
	to 	obtain
	the 	information
	it
	needs
	from
	the
	employer
to 	evaluate
	those 	grievances
	on
	behalf
	of
	its
	members.
On
	its
	face, 	section
	3543.l{a)9	
specifically
	grants
nonexclusive
	employee
	organizations
	a
	right
	to 	represent
	their
members
	"in
	their
	employment
	relations
	with 	the
	public 	school
employer"
	until
	such 	time
	as
	an
	exclusive 	representative
	is
recognized 	or
	certified.
The
	scope
	of 	the
	term
	"employment
	relations"
	has 	not
	yet
been
	resolved
	by 	PERB. 	However,
	the 	processing 	of
	a
	grievance
9section 	3543.l(a)
	states
	in 	pertinent 	part:
Employee
	organizations
	shall
	have
	the
	rightto 	represent
	their
	members
	in
	their
employment
	relations
	with
	public 	schoolemployers, 	except
	that
	once 	an 	employee
organization
	is
	recognized 	or
	certified
	as
the 	exclusive 	representative 	of
	an
appropriate 	unit 	pursuant 	to 	Section
	3544 	1
or 	3544.7,
	respectively, 	only
	that
	employee
organiza
	may
	represent 	that 	unit 	in
their
	employment
	relations
	with 	the 	publicschool 	employer.
14

on 	behalf 	of 	employees 	clearly 	constitutes 	a 	matter 	of
"employment 	relations." 	Mount 	Diablo Unified 	School 	District,
Santa 	Ana 	Unified 	School 	District, 	and 	Capistrano 	Unified 	School
District 	(12/30/77) 	supra, 	PERB 	decision 	No. 	44, 	at 	page 	13. 	In
the 	present 	case, 	UFA 	desired 	information 	from 	the 	District 	in
order 	to 	determine 	whether 	to 	pursue 	administrative 	remedies
within 	the 	District. 	Pursuit 	of 	administrative 	remedies 	is
sufficiently 	similar 	to 	processing 	grievances 	to 	bring 	this 	case
within 	the 	Mount 	Diablo 	rule, 	thus 	within 	the 	authorized 	area 	of
"employment 	relations."
A nonexclusive 	representative's 	right 	to 	present 	grievances
would 	be meaningless 	if 	the 	employer 	were 	under 	no 	duty 	to
provide 	information 	it 	possesses 	and 	which 	is 	relevant 	to 	the
evaluation 	and/or 	processing 	of 	the 	grievance. 	Accordingly, 	a
necessary 	corollary 	to 	the 	duty 	of 	the 	employer 	to 	engage 	in
such 	grievance 	resolution 	is 	the 	duty 	to 	furnish 	information
necessary 	for 	the 	nonexclusive 	representative 	to 	provide
effective 	representation. 	In 	the 	present 	case, 	UFA 	had 	a 	right
to 	represent 	its 	members, 	including 	a 	right 	to 	the 	data 	and
information 	in 	the 	employer's 	possession 	concerning 	the
employer's 	proposed 	layoffs. 	Among 	such 	information was
criteria 	used 	by 	the 	District 	to 	determine 	whom 	to 	lay 	off. 	The
Distr 	t's 	refusal 	to 	provide 	such 	information 	to UFA
constitu 	a 	i 	UFA's 	r 	t 	to 	esent 	its 	rs
provided 	by 	section 	3543.l(a).
15

The 	National 	Labor 	Relation 	Act 	(29 	u.s.c. 	151, 	et 	seq.}
contains 	no 	provision 	which 	mandates 	an 	employer 	to 	recognize 	or
adjust 	grievances 	of 	a 	nonexclusive 	representative 	comparable 	to
EERA 	section 	3543.l(a). 	Therefore, 	the 	federal 	labor 	precedent
upon 	which 	the 	hearing 	officer 	based 	his 	analysis 	is
inapplicable 	to 	the 	circumstances 	underlying 	the 	District's
failure 	to 	furnish 	the 	requested 	information. 	Based 	on 	the
foregoing, 	the 	hearing 	officer's 	failure 	to 	find 	that 	the
District's 	actions 	violated 	section 	3543.S(b) 	is 	reversed.
Discriminatory 	Salary 	Raise
As 	a 	(d) 	violation. 	The 	hearing 	officer 	determined 	that 	the
"basic 	thrust" 	of 	this 	aspect 	of 	the 	charge 	was 	an 	allegation
that 	the 	District 	violated 	section 	3543.S(d). 	He 	found 	that 	the
District's 	grant 	of 	a 	salary 	raise 	to 	full-time 	instructors 	but
not 	to 	part-time 	instructors 	"had 	a 	disparate 	and 	adverse 	impact
on 	that 	segment 	of 	the 	faculty 	which 	formed 	the 	natural
constituency of 	the 	United 	Faculty Association."10 	Concluding
that 	this 	action 	had 	the 	"natural 	and 	probable 	consequence" 	of
encouraging 	membership 	in 	another 	organization, 	San 	Dieguito
Union 	High 	School 	District 	(9/2/77) 	supra, 	EERB 	Decision 	No. 	22,
the 	hearing 	ficer 	that 	the 	District's 	action 	violated
section 	3543.S(d).
lOsanta 	Mon 	Colle 	e 	Part-Time 	Assn. 	v. 	Santa
Monica 	Communiti 	College 	D1str1ct 	Hearing 	Officer's
Recommended 	Decision, 	at 	p. 	32.
16

As 	an 	(a) 	violation. 	However, 	the 	hearing 	officer 	declined
to 	find 	that 	the 	District's 	action 	also 	discriminated 	against
and 	interfered 	with 	employees 	in 	violation 	of 	section 	3543.5(a).
In 	Oceanside-Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB
Decision No. 	89, 	PERB 	established 	a 	single 	standard 	and 	test 	for
all 	alleged 	violations 	of 	section 	3543.5(a). 	PERB 	held 	where
there 	is 	a 	nexus 	between 	the 	employer's 	acts 	and 	the 	exercise 	of
employee 	rights, 	a 	prima 	facie 	case 	is 	established 	upon 	a
showing 	that 	those 	acts 	resulted 	in 	some 	harm 	to 	the 	employee's
rights. 	If 	the 	employer 	offers 	operational 	necessity 	in
explanation 	of 	its 	conduct, 	the 	competing 	interests 	of 	the
parties 	are 	balanced 	and 	the 	issue 	resolved 	accordingly. 	If 	the
employer's 	acts 	are 	inherently 	destructive 	of 	employee 	rights;
however, 	those 	acts 	can 	be 	exonerated 	only 	upon 	a 	showing 	that
they 	were 	the 	result 	of 	circumstances 	beyond 	the 	employer's
control 	and 	no 	alternative 	course 	of 	action 	was 	available. 	In
any 	event, 	the 	charge 	will 	be 	sustained 	if 	unlawful 	intent 	is
established 	either 	affirmatively 	or 	by 	inference 	from 	the 	record.
In 	the 	present 	case, 	the 	District 	increased 	the 	wages 	of
full-time 	employees 	because 	the 	Association 	agreed 	to 	waive
tive 	negotiation 	rights 	on 	salaries, 	whi 	it 	declined 	to
increase 	part-time 	employees' 	wages 	because UFA 	refused 	to 	waive
such 	rights. 	is 	constituted 	discrimination. 	The 	District
also 	circulated 	a memorandum 	to 	the 	communi 	and
press, 	placing 	the 	onus 	for 	such 	action 	on UFA. 	This 	conduct
17

resulted 	in 	at 	least 	"slight 	harm" 	to 	the 	rights 	of 	employees.
The 	EERA 	guarantees 	public 	school 	employees 	the 	right 	to 	form,
join 	and 	participate 	in 	the 	activities 	of 	the 	organization 	of
their 	choice. 	(Secs. 	3540, 	3543.) 	It 	gives 	them 	the 	right 	to
be 	represented 	by 	the 	employee 	organization 	of 	their 	choice.
(Secs. 	3540, 	3543.) 	The 	District's 	conduct 	in 	this 	case 	was
both 	discriminatory 	and 	harmful 	to 	these 	rights.
In 	the 	present 	case, 	the 	District 	contends 	that 	its 	actions
were 	lawfully 	taken 	because 	(1) 	the 	failure 	to 	grant 	a 	wage
increase 	to 	part-time 	instructors 	was 	due 	to UFA's 	refusal 	to
waive 	collective 	negotiation 	rights 	for 	its 	members; 	(2) 	the
same 	salary 	offer 	was 	made 	to 	all 	employees, 	and 	when 	that 	offer
was 	made,
... 	there 	was 	at 	least 	a 	reasonable
possibility 	that 	separate 	units 	would 	have
been 	created 	for 	part-time 	and 	full-time
faculty.
The 	District's 	first 	rationale 	is 	less 	of 	a 	valid
justification 	than 	it 	is 	an 	acknowledgment 	of 	wrongdoing. 	The
District 	candidly 	acknowledges 	that 	it 	treated 	part-time
employees 	differently 	than 	ful 	time 	employees 	because 	UFA
refused 	to 	surrender 	one 	the 	most 	basic 	rights 	contained 	in
the 	EERA. 	This 	explanation 	evidences 	an 	impermissible 	motive--
to 	discriminate 	on 	the 	basis 	of 	a 	refusal 	to 	waive 	rights
guaran 	by 	the 	EERA--rather 	than 	on 	operational
18

It 	is 	difficult 	to 	grasp 	the 	rationale 	of 	the 	second 	claimed
justification 	for 	the 	District's 	act. 	That 	the 	creating 	of 	two
negotiating 	units 	was 	reasonably 	forseeable 	does 	not 	explain 	why
the 	District 	failed 	to 	increase 	the 	wages 	of 	part-time
instructors 	commensurately 	with 	the 	increase 	it 	gave 	full-time
instructors. 	In 	any 	event, 	this 	rationale 	ignores 	that 	the
District 	offered 	pay 	raises 	at 	the 	outset 	to 	both 	groups 	of
employees. 	It 	ignores 	that 	the 	District 	declined 	to 	pay 	an
increase 	to 	part-time 	employees 	only 	because 	it 	was 	unable 	to
exact 	a 	waiver 	of 	compensation 	negotiating 	rights 	from 	UFA 	for
the 	1977-78 	year. 	It 	also 	ignores 	that 	the 	District 	circulated
a 	memorandum 	to 	employees 	and 	the 	press 	stating 	that 	UFA 	was
responsible 	for 	the 	District's 	decision 	not 	to 	increase 	the
wages 	of 	part-time 	employees. 	The 	District's 	second
justification, 	like 	its 	first, 	fails 	to 	establish 	"operational
necessity."
Interference. 	PERB 	further 	finds 	that 	the 	District's 	action
constituted 	interference 	with 	the 	exercise 	of 	employee 	rights
guaranteed 	by 	section 	3543 	to 	"join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of 	their 	own 	choosing 	for
the 	purpose 	representat 	on 	1 	matters 	of 	employer-
employee 	relations" 	or 	"to 	refuse 	to 	join 	or 	participate. 	. 	. II .
The 	District 	conditioned 	a 	salary 	increase 	on 	a 	waiver 	of
employees' 	basic 	statu 	ri 	t 	to 	tive
negotiations. 	In 	the 	face 	of 	the 	employees' 	refusal 	to 	waive
19

such 	rights, 	the 	District 	carried 	through 	its 	implied 	threats 	to
impose 	reprisals 	on 	the 	employees 	by 	denying 	them 	the 	wage
increases. 	This 	implied 	promise 	to 	give 	raises 	based 	on 	the
waiver 	of 	rights 	and 	subsequent 	retaliatory 	denial 	of 	raises 	by
the 	District 	clearly 	interfered 	with, 	restrained 	and 	coerced
employees 	because 	of 	their 	exercise 	of 	rights 	guaranteed 	by
EERA, 	in 	violation 	of 	3543.4(a). 	Requiring 	employees 	to 	give 	up
employee 	organizational 	activities 	as 	a 	condition 	to 	receiving 	a
pay 	increase 	tends 	to 	have 	a 	discouraging 	effect 	on 	both 	present
and 	future 	protected 	activity. 	Such 	interference 	is 	"inherently
destructive" 	of 	employee 	rights. 	See 	NLRB 	v. 	Great 	Dane
Trailers, 	Inc. 	(1967) 	388 	U.S. 	26 	[65 	LRRM 	2465].
Further, 	over 	the 	objection 	of 	UFA, 	the 	District 	implicitly
appointed UFA 	as 	the 	representative 	of 	all 	part-time 	employees.
It 	also 	effectively 	appointed 	the 	Association 	as 	the
representative 	of 	all 	full-time 	employees. 	Upon UFA's 	rejection
of 	the 	District's 	offer, 	the 	District 	failed 	to 	increase 	the
wages 	of 	all 	part-time 	instructors. 	Section 	3543.l(a) 	gives
nonexclusive 	employee 	organizations 	the 	right 	to 	represent 	their
members~ 11 In 	ing 	to 	increase 	the 	wages 	of non-UFA
members 	because 	of 	UFA's 	refusal 	to 	waive 	the 	rights 	of 	its
members, 	the 	Distr 	r 	wi 	r 	t
llThe 	text 	to 	section 	3543.l(a) 	is 	set 	forth 	at
footnote 	9, 	ante.
20

individuals 	not 	to 	participate 	in 	the 	activities 	of 	employee
organizations.
Encouraging 	Employees 	to 	Join 	One 	Employee 	Organization 	in
Preference 	to 	Another
PERB 	upholds 	the 	hearing 	officer's 	conclusion 	that 	the
District's 	conduct 	violated 	section 	3543.S(d) 	of 	the 	EERA. 	The
hearing 	officer 	found 	that 	the 	statutory 	language 	of
section 	3543.S(d) 	was 	apparently 	based 	on 	section 	B(a) (3) 	of 	the
NLRA, 	which makes 	it 	unlawful 	for 	an 	employer,
by 	discrimination 	in 	regard 	to 	hire 	or
tenure 	or 	employment 	or 	any 	term 	or
condition 	of 	employment 	to 	encourage 	or
discourage 	membership 	in 	any 	labor
organization 	... 	[29 	U.S.C. 	sec.
158(a) (3).]
The 	hearing 	officer 	held 	that 	the 	District 	violated
section 	3543.S(d) 	on 	the 	basis 	that 	the 	"natural 	and 	probable
consequence" 	of 	the 	employer's 	action 	was 	to 	discourage
membership 	in 	UFA. 	San 	Dieguito 	Unified 	School 	District
(9/2/77) 	supra, 	EERB 	Decision No. 	22. 	PERB 	affirms 	the 	ultimate
finding 	of 	a 	violation, 	but 	for 	the 	reasons 	that 	follow.
We 	think 	the 	provisions 	of 	section 	8(a) (3) 	and 	3543.S(d) 	are
substantially 	different. 	Section 	8(a) (3) 	outlaws 	certain
discriminatory 	conduct 	whose 	purpose 	is 	to 	encourage 	or
discourage 	membership 	in 	any 	labor 	organization. 	If 	this
ific 	motive 	is 	not 	established, 	a 	violation 	of 	section
21

will 	not 	generally 	be 	found.12 	Section 	3543.S(d), 	in
pertinent 	part, 	simply 	states:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
•.• 	in 	any 	way 	encourage 	employees 	to 	join
any 	organization 	in 	preference 	to 	another.
[Emphasis 	added.]
This 	section 	imposes 	on 	employers 	an 	unqualified 	requirement 	of
strict 	neutrality. 	There 	is 	no 	indication 	in 	the 	statutory
language 	that 	the 	Legislature meant 	to 	prohibit 	only 	those 	acts
which 	were 	intended 	to 	impact 	on 	the 	employees' 	free 	choice.
The 	simple 	threshold 	test 	of 	section 	3543.S(d) 	is 	whether 	the
employer's 	conduct 	tends 	to 	influence 	that 	choice 	or 	provide
stimulus 	in 	one 	direction 	or 	the 	other.
PERB 	disagrees 	with 	the 	District's 	contention 	that 	finding 	a
violation 	of 	section 	3543.S(d) 	depends 	upon 	proof 	that 	the
employees 	actually 	changed membership 	as 	a 	result 	of 	the
employer's 	acts. 	The 	word 	"encourage" 	connotes 	nothing 	more
than 	stimulus, 	favor 	or 	being 	conducive 	to 	a 	particular 	result.
Who 	among 	us 	can 	claim 	that 	we 	have 	achieved 	every 	goal 	toward
which 	we 	have 	been 	encouraged, 	or 	that 	we 	have 	not 	suffered
disappointments 	despite 	encouragement 	we 	have 	received?
In 	the 	present 	case, 	the 	District's 	discriminatory 	failure
to 	grant 	a 	wage 	increase 	to 	part-time 	employees 	in 	addition 	to
12Radio 	Officers' 	Union 	v. 	NLRB 	(1954) 	347 	U.S. 	17 	[33
LRRM 	2417].
22

its 	memo 	assessing 	blame 	against 	UFA 	for 	the 	employer's 	actions,
clearly 	would 	have 	tended 	to 	discourage 	employees 	from 	joining
UFA 	and 	to 	encourage 	employees 	to 	join 	another 	employee
organization. 	The 	District 	failed 	to 	give 	an 	8 	percent 	wage
increase 	to 	part-time 	instructors 	and 	blamed 	UFA 	for 	its 	action
in 	a 	statement 	that 	was 	distributed 	to 	the 	college 	community 	and
the 	press. 	These 	actions 	clearly 	would 	tend 	to 	undermine
employee 	confidence 	in UFA 	and 	to 	discourage 	their 	membership 	in
it. 	The 	District's 	conduct 	has 	already 	been 	found 	not 	to 	be
based 	on 	legitimate 	operational 	necessity 	and 	therefore 	violated
section 	3543.S(d).
III. 	Filing 	of 	the 	Charge 	Concerning 	Shaw's 	Dismisal
The 	hearing 	officer 	correctly 	concluded 	that 	the 	charge
alleging 	discriminatory 	discharge 	of 	James 	Shaw 	was 	not 	timely
filed 	within 	the 	six month 	statute 	of 	limitations 	provided 	in
section 	3541.5 (a) (1) .13
13section 	3541.S(a)(l) 	reads:
The 	initial 	determination 	as 	to 	whether 	the
charges 	of 	unfair 	practices 	are 	justified,
and, 	if 	so, 	what 	remedy 	is 	necessary 	to
effectuate 	the 	purposes 	this 	chapter,
shall 	be 	a 	matter 	within 	the 	exclusive
jurisdiction of 	the 	board. 	Procedures 	for
investigating, 	hearing, 	and 	deciding 	these
cases 	shall 	be 	devised 	and 	promulgated 	by
the 	board 	and 	shall 	include 	all 	of 	the
following:
(a) 	Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
23

Under 	the 	NLRA, 	a 	charge 	concerning 	a 	dismissal 	is 	timely
only when 	filed 	within 	six months 	of 	the 	effective 	date 	of 	the
discharge. 	See 	California 	School 	of 	Professional 	Psychology
(1977) 	227 	NLRB 	1657 	[95 	LRRM 	1032]; 	Colorflo 	Decorator
Products, 	Inc. 	(1977) 	228 	NLRB 	No. 	23 	[94 	LRRM 1554].
Shaw's 	termination 	date 	was 	the 	end 	of 	the 	spring 	semester
in 	the 	middle 	of 	June. 	The 	charge 	was 	filed 	on 	January 	10,
1977, 	or 	approximately 	seven months 	following 	the 	termination.
The 	charge, 	therefore, 	was 	not 	timely 	filed, 	and 	the 	charge
relating 	to 	Shaw's 	dismissal 	is 	dismissed.
UFA makes 	one 	novel 	argument 	in 	an 	attempt 	to 	save 	this
charge. 	It 	states 	that 	the 	statute 	of 	limitations 	in
section 	3541.S(a) (1) 	should 	be 	deemed 	modified 	by 	the 	provision
in 	Senate 	Bill 	147114 	allowing 	charges 	to 	be 	filed 	beginning
on 	its 	enactment 	July 	1, 	1976. 	This 	argument 	is 	contrary 	to 	the
clear 	wording 	of 	section 	3541.S(a), 	which 	itself 	was 	not 	amended
by 	SB 	1471. 	In 	implementing 	SB 	1471, 	the 	Legislature 	sought 	not
to 	extend 	the 	date 	for 	filing 	charges, 	but 	rather 	to 	allow
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	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[.]
1 4see 	foot 	5, 	ante.
24

charges 	to 	be 	filed 	respecting 	conduct 	occurring 	on 	or 	after
April 	1, 	1976.
UFA 	also 	contends 	that 	Shaw's 	lack 	of 	knowledge 	of 	the
criteria 	used 	by 	the 	District 	in 	determining 	whom 	to 	dismiss
should 	extend 	the 	filing 	period. 	PERB 	does 	not 	foreclose 	the
possibility 	that 	in 	extraordinary 	circumstances 	where
fundamental 	equitable 	principles 	are 	involved, 	a 	charge 	may 	be
considered 	timely 	even 	when 	filed 	later 	than 	six months 	after
the 	effective 	date 	of 	a 	discharge. 	Nothing 	in 	this 	case,
however, 	justifies 	a 	departure 	from 	the 	general 	rule. 	Shaw 	was
an 	active 	member 	of 	UFA. 	When 	he 	learned 	of 	the 	District's 	plan
to 	terminate 	him, 	he 	suspected 	that 	he 	was 	being 	singled 	out
because 	of 	his 	organizational 	activities. 	Under 	these 	facts,
Shaw 	was 	obliged 	to 	file 	a 	charge 	within 	six months 	from 	the
date 	of 	his 	discharge.
Dr. 	Moore's 	July 	2 Memo
In 	support 	of 	its 	charge 	that 	the 	District 	violated
section 	3543.S(d) 	of 	EERA, 	UFA 	cites 	portions 	of 	the 	July 	2 memo
sent 	by 	Dr. 	Moore 	to 	the 	"Santa Monica 	College 	Community. 11 15
15The 	July 	2 memo 	stated, 	in 	pertinent 	part:
At 	2:10 	p.m., 	June 	30, 	1976 	the 	Part-Time
Faculty Association's 	Executive 	Committee
ended 	two 	days 	of 	discussions 	by 	stating
that 	the 	offer 	from 	the 	Board 	was 	not 	worth
the 	ef 	t 	to 	take 	to 	their 	members. 	The
Board's 	representative 	indicated 	that 	the
offer 	was 	open, 	per 	instructions, 	until
25

UFA 	contends 	that 	the memo 	contains 	inaccurate 	statements 	about
UFA, 	in 	that 	it 	appears 	to 	suggest 	UFA 	turned 	down 	an 	offer 	of
the 	District 	to 	all 	600 	part-time 	faculty 	members, 	rather 	than
stating 	UFA 	declined 	the 	offer 	only 	on 	behalf 	of 	its 	own members.
Even 	accepting, 	arguendo, 	UFA's 	interpretation 	of 	the 	memo
it 	does 	not 	support 	a 	separate 	violation 	of 	EERA.
At 	most, 	such 	evidence 	would 	only 	support 	the 	overall 	conduct
engaged 	in 	by 	the 	District, 	upon 	which 	the 	Board 	has 	heretofore
based 	its 	findings 	that 	the 	District 	is 	in 	violation 	of
3543.5(a) 	and 	(d). 	Therefore, 	the 	Board makes 	no 	separate
finding 	as 	to 	the 	July 	2 memo.
The 	Remedy
Back 	pay. 	The 	hearing 	officer 	refused 	to 	order 	back 	pay 	for
the 	employees 	denied 	the 	salary 	raise, 	citing 	Porter 	Co. 	v. 	NLRB
(1970) 	397 	U.S. 	99 	[73 	LRRM 	25611] 	and 	Ex-Cell-O Corp. 	(1970)
midnight, 	but 	the 	executive 	committee 	of 	the
Part-Time 	Faculty 	Association 	refused 	the
Board's 	offer 	to 	all 	600 	part-time 	employees
of 	the 	college 	district. 	The 	significance
of 	this 	decision 	is 	that 	the 	pay 	rate 	for
part-time 	employees 	will 	continue 	at 	$14.75
per 	hour 	rather 	than 	change 	to 	$16.00 	per
hour 	effective 	September 	1, 	1976.
The 	Board 	wishing 	in 	good 	faith 	to 	improve
working 	conditions 	prior 	to 	the 	July 	1
collective 	bargaining 	date, 	made 	its
settlement 	th 	the 	ful 	time 	faculty 	and
tendered 	its 	offer 	to 	the 	Part- 	Time 	Facul
Association 	which 	was 	not 	accepted.
26

185	
NLRB
	107 	[74
	LRRM
	17401]. 	In
	Porter,
	the
	U.S.
	Supreme
	Court
held
	that
	the
	NLRB
	could 	not
	order
	a
	party 	to 	incorporate
	into
	a
collective
	bargaining
	agreement
	a
	specific
	provision 	to
	which
that
	party
	has
	not
	agreed.
	Subsequent
	to
	this
	decision, 	the
NLRB
	in
	Ex-Cell-O 	Corp.
	followed
	Porter
	by
	refusing 	to
	order
compensation
	to
	employees
	where
	the
	employer
	refused
	to 	bargain
in 	order 	to 	challenge
	certification.
	Neither
	Porter
	nor
Ex-Cell-O Corp.
	relates
	to
	the
	present 	case,
	however.
	Here,
	the
sole 	issue
	is
	whether
	the
	District
	should
	be
	required 	to
	make
the
	employees 	whole
	for
	losses 	suffered
	as 	the
	result
	of 	the
District's
	unlawful
	discriminatory
	act.
	This
	issue
	has
	no
relation
	to 	the
	propriety 	of 	ordering
	that
	a
	substantive
	benefit
be 	implemented
	as
	part
	of
	a
	collective
	negotiations
	agreement 	or
in 	place 	of
	one.
The
	NLRB
	customarily 	orders
	that
	back 	pay
	be
	awarded
	to
employees
	in 	appropriate 	cases
	where
	discrimination
	has
occurrea.16	
For 	example,
	in 	Florida 	Steel
	Corp.
	(1975) 	220
16see
	section 	l0(c) 	of 	the
	NLRA,
	which
	states
	in
	part:
If
	upon
	the 	preponderance
	of 	the 	evidence
taken 	the
	Board
	shall
	be
	of 	the 	opinion
any
	person
	named
	in 	the 	complaint 	hasengaged
	in 	or
	is
	engaging 	in
	any 	such
	unfairlabor
	practice,
	then 	the
	Board
	shall 	state
its
	findings 	of 	fact
	and
	shall 	issue
	and
cause 	to
	be
	served
	on 	such 	person
	an
	order
requiring
	such 	rson 	to 	cease
	and
	desist
from 	such
	ir
	labor 	practice, 	to 	ta
such
	affirmative 	action 	including
reinstatement 	with 	or 	without 	backpay, 	as
will 	effectuate 	the 	policies 	of 	this 	act.
27

NLRB 	1201 	[90 	LRRM 	1329], 	enforced 	per 	curiam 	(7th 	Cir. 	1976)
538 	F.2d 	324 	[92 	LRRM 	3424] 	the 	NLRB 	ordered 	and 	the 	court
enforced 	a 	back 	pay 	order 	where 	the 	company 	had 	granted 	benefits
to 	all 	its 	plants 	but 	those 	in 	which 	union 	activity 	was 	taking
place. 	Similarly, 	in~ v. 	Darling 	& Co. 	(7th 	Cir. 	1970) 	420
F.2d 	63 	[73 	LRRM 	2117], 	enforcing 	(1968) 	170 	NLRB 	1068 	[68 	LRRM
1415] 	the 	court 	enforced 	an 	NLRB 	order 	requiring 	back 	pay 	when
the 	employer 	denied 	severance 	and 	vacation 	pay 	to 	the 	members 	of
one 	union 	while 	granting 	it 	to 	the 	members 	of 	other 	unions,
where 	a 	member 	of 	the 	first 	union 	independently 	had 	filed
charges 	against 	the 	employer.
In 	addition, 	the 	NLRB 	customarily 	orders 	interest 	to 	be 	paid
in 	addition 	to 	the 	back 	pay 	in 	order 	to 	return 	the 	employees 	to
the 	position 	they 	would 	have 	occupied 	but 	for 	the 	violation.
The 	EERA gives 	PERB 	the 	authority 	to 	"take 	such 	action 	and
make 	such 	determinations 	in 	respect 	of 	such 	[unfair 	practice]
charges 	or 	alleged 	violations 	as 	the 	board 	deems 	necessary 	to
effectuate 	the 	policies 	of 	this 	chapter." 	(Sec. 	3541.3(i) .) 	In
addition, 	PERB 	is 	empowered 	to 	"issue 	a 	decision 	and 	order
directing 	an 	offending 	party 	to 	cease 	and 	desist 	from 	the 	un 	ir
practice 	and 	to 	take 	such 	affirmative 	action, 	inc 	ing 	t 	not
limited 	to 	the 	reinstatement 	of 	employees 	with 	or 	without 	back
pay, 	as 	will 	effectuate 	the 	policies 	of 	is 	chapter." 	Section
3541.S(c). 	The 	Uni 	States 	Supreme 	Court 	has 	terpre
identical 	phrasing 	of 	the 	NLRA, 	section 	lO(c) 	as 	being 	merely 	an
28

example
	of 	the
	NLRB's
	power,
	and
	has
	held
	that
	back 	pay
appropriately
	may 	be
	ordered
	even
	where
	reinstatement
	is
	not
appropriate.
	See 	Radio
	Officers'
	Union
	v.
	NLRB
	(1954)
	supra,
347
	U.S.
	17 	[33
	LRRM
	2417,
	2432];
	Phelps
	Dodge
	Corp.
	v.
	NLRB
(1941) 	313
	U.S.
	177 	[8
	LRRM
	439] •
In
	the 	present 	case,
	all
	part-time
	employees
	were
	unlawfully
discriminated 	against 	in
	being 	denied
	an
	approximately	
8	
percent
wage
	increase
	given
	all
	full-time
	employees.
	This
	disparate
treatment 	of
	part-time
	employees
	violated 	sections
	3543.S(a)
	and
(d)
	of
	the
	EERA.
	Section 	3541.5(c),
	therefore,
	empowers
	PERB
	to
compensate
	part-time
	instructors
	for 	the
	loss
	of
	pay
	suffered
	by
them
	because
	of
	the
	District's
	actions.
	Employees
	must
	be
compensated
	for 	the
	amount
	of
	pay
	actually
	lost
	because
	of 	the
District's
	failure 	to 	grant
	them 	a 	wage
	increase 	of
	$1.25
	per
hour,
	plus
	7
	percent
	interest
	per
	annum,
	the 	standard
	rate
	of
interest
	assessed
	by
	California 	courts.
	See
	Sanders 	v.
	City 	of
Los
	Angeles
	(1970) 	3
	C.3d 	252, 	261-263.
Should
	the
	District 	fail
	to
	comply
	with
	PERB's
	order 	with
respect 	to
	back
	pay, 	the 	charging
	party
may
	petition
	PERB
	to
order
	a
	compliance 	hearing
	to
	determine 	the
	amount
	of
	back 	pay
due
	affected 	indi 	uals.
Mailing
	and
	Posting 	of 	Notice.
	The
	hearing
	officer 	refused
to 	include 	in 	the
	r
	livery
	a
	notice 	of
vi 	ion 	to 	the 	t-time
	employees 	by
	the
	District's
action.
	PERB
	finds 	that 	personal 	delivery 	is 	necessary 	to
29

effectuate 	the 	purposes 	and 	policies 	of 	the 	EERA. 	It 	is
possible 	that 	many of 	the 	part-time 	instructors 	who 	taught 	in
the 	District 	during 	the 	1976-77 	year 	no 	longer 	are 	teaching
there, 	and 	every 	individual 	eligible 	for 	the 	above 	back 	pay
award 	must 	be 	notified 	of 	this 	decision. 	Personal 	delivery 	also
is 	necessary 	to 	counterbalance 	the 	effect 	of 	the 	District's
delivery 	to 	each 	part-time 	employee 	of 	the 	July 	2 memo 	from 	the
District 	which 	announced 	the 	discriminatory 	action 	and 	blamed 	it
on 	the 	UFA.
In 	addition 	to 	personal 	delivery, 	the 	District 	shall 	post
the 	appended 	notice 	in 	the 	locations 	designated 	in 	the 	order.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that 	the
Santa Monica 	Community College 	District, 	Board 	of 	Trustees,
superintendent, 	and 	representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Imposing 	or 	threatening 	to 	impose 	reprisals 	on 	employees,
discriminating 	or 	threatening 	to 	discriminate 	against 	employees,
or 	otherwise 	interfering 	with, 	restraining, 	or 	coercing 	employees
because 	of 	the 	exercise 	their 	organizational 	rights, 	by
threatening 	to 	or 	conditioning 	salary 	increases 	on 	the 	waiver 	of
statutory 	rights, 	or 	by 	withholding 	salary 	increases
the 	exercise 	such 	rights;
30

2.
	Encouraging
	employees
	to
	join
	any 	employee
	organization
in 	preference 	to 	another;
3.
	Interfering
	with
	the
	right
	of
	employees
	to
	join
	or 	not
join
	an 	employee
	organization
	of
	their
	choice;
4.
	Denying
	to
	employee
	organizations
	information
	needed
	to
represent
	their
	members.
B.
	TAKE 	THE 	FOLLOWING
	AFFIRMATIVE
	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	EERA:
1.
	Prepare
	and
	post 	copies 	of
	this
	Order
	and
	the
	attached
notice 	within
	seven
	calendar
	days
	following
	receipt
	at
	each
	of
its
	campuses 	and 	work
	sites
	for
	sixty
	(60)
	calendar
	days
	in
conspicuous
	places,
	including
	all
	locations
	where
	notices
	to
certificated
	employees
	are 	customarily 	posted;
2.
	Distribute
	to
	each
	part-time
	employee
	as 	of
	September
	1,
1976
	a
	copy
	of
	this
	Order;
3.
	Pay
	to
	each
	part-time
	employee
	as 	of
	September
	1,
	1976
the 	$1.25
	per
	hour
	increase 	in 	salary 	discriminatorily
	denied
them
	for 	the 	1976-1977 	school 	year
	and 	remedy
	in
	like
	manner 	any
effects 	this
	discrimination 	continuing 	through 	the 	1977-1978
school 	year.
4.
	Pay
	in 	addition 	to 	the
	amount
	specified 	in
	3.,
	above,
seven 	(7)
	percent
	interest
	per
	annum 	on
	the
	amount 	owing
	to
	each
e,
	measured 	from 	r
	1, 	1976 	to
	t
	nt 	is
made.
31

5.
	At
	the
	end
	of
	the
	posting 	period
	notify
	the
	Los
	Angeles
Regional
	Director 	of 	the 	Public
	Employment
	Relations
	Board
	of
the
	action
	it
	has
	taken
	to
	comply
	with
	this
	order.17
All 	other
	charges
	filed
	by
	the
	Santa
	Monica
	College 	United
Faculty 	Association
	against
	the 	Santa
	Monica
	Community
	College
District
	contained 	in
	case
	numbers
	LA-CE-41
	and
	LA-CE-57
	are
hereby
	dismissed.
By/
Harry
1.,Gluck,
	Chairperson 	Barbara
	D.
	Moore,
	Member
Raymond
	J.
	Gonzales,
	dissenting 	in
	part
	and
	concurring
	in
	part:
I.
	The
	District's
	Grant
	of
	a
	Salary
	Raise
	Only
	to
	Full-Time
Employees
I
	concur
	in
	the
	majority's 	decision 	to 	find
	that
	the
District's
	action 	in 	granting
	a
	salary 	raise
	to
	full-time
employees 	and
	not 	to 	part-time
	employees
	constituted
	a
	violation
of 	section
	3543.S(a).
	As
	the 	majority 	decision 	notes, 	the
District's
	conduct
	was
	discriminatory 	to 	the 	rights 	of
	employees.
It
	also 	interfered
	with
	employee
	rights,
	as
	set 	forth 	in 	the
l7should 	the
	District 	fail
	to
	comply 	with
	PERB 1 s
	Order
with 	respect 	to
	back 	pay, 	the 	charging 	party
	may
	petition
	PERB
to 	order
	a
	compliance 	hearing 	to 	determine 	the
	amount
	of 	backpay 	due
	affected 	individuals.
32

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED AND MAILED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	which 	all 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	Santa 	Monica 	Community
College 	District 	violated 	the 	Educational 	Employment 	Relations
Act 	by 	discriminatorily 	denying 	a 	salary 	increase 	unless 	a
waiver 	of 	rights 	guaranteed 	by 	statute 	was 	made, 	and 	by
refusing 	to 	furnish 	information 	to 	the 	Santa Monica 	College
United 	Faculty Association 	that 	was 	necessary 	for 	the
Association 	to 	represent 	its 	members. 	As 	a 	result 	of 	this
conduct, 	we 	have 	been 	ordered 	to 	post 	and 	mail 	this 	notice 	and
we 	will 	abide 	by 	the 	following:
WE WILL 	NOT 	discriminate 	against 	employees 	by 	refusing 	to
grant 	them 	salary 	increases 	on 	the 	basis 	of 	organizational
activity.
WE WILL 	NOT 	encourage 	or 	discourage 	membership 	in 	any
employee 	organization.
WE WILL 	NOT 	interfere 	with 	the 	exercise 	of 	rights
guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act.
WE WILL 	pay 	back 	wages 	due 	to 	part-time 	certificated
employees 	because 	of 	our 	discriminatory 	refusal 	to 	raise 	their
wages 	commensurately 	with 	those 	of 	full-time 	certificated
employees.
Santa Monica 	Community 	College 	District
By: 	Superintendent
Da
is is 	an 	off 	ial 	notice. 	It 	must 	remain 	ted 	for
consecutive 	days 	from 	the 	of 	posting 	and 	must 	not
f 	, 	altered 	or 	covered 	any material.
33

majority 	decision. 	Since 	the 	District's 	purported 	reasons 	for
its 	conduct 	do 	not 	constitute 	a 	legitimate 	and 	substantial
justification, 	intent on 	the 	part 	of 	the 	District 	to 	discrimi-
nate 	and 	interfere 	can 	be 	inferred 	and 	a 	violation 	of 	section
3543.S(a) 	found. 	I 	make 	no 	judgment 	as 	to 	whether 	the 	District's
conduct merits 	the 	label 	of 	being 	"inherently 	destructive."
Since 	the 	District did 	not 	offer 	any 	justification 	in 	the 	first
instance, 	it 	is 	unnecessary 	to 	so 	determine 	the 	District's
conduct. 	See 	Carlsbad 	Unified 	School 	District 	()/30/79) 	PERB
Decision 	No. 	89, 	concurring opinion.
I 	disagree 	with 	that 	portion 	of 	the 	Board Order 	requiring
the 	District 	to 	cease 	and 	desist 	from 	imposing 	or 	threatening
to 	impose 	reprisals 	on 	employees 	and 	restraining or 	coercing
employees 	because 	of 	the 	exercise 	of 	their 	organizational 	rights.
The 	District's 	grant 	of 	a 	salary 	raise 	only 	to 	full-time
employees 	is 	cast 	as 	an 	issue 	in 	terms 	of 	discrimination 	and
interference with 	employee 	rights. 	Although 	they 	make 	passing
reference 	to 	such 	findings 	in 	the 	text, 	the 	majority 	offer 	no
articulated 	rationale 	supporting 	them; 	their 	cease 	and 	desist
order 	on 	these 	points 	is 	totally 	inappropriate.
II. 	The 	District's 	"Discouragement" 	of 	Membership 	in 	UFA
I 	also 	agree 	with 	the 	majority 	that 	the 	District 	violated
section 	3543.S(d). 	I 	concur 	in 	the 	decision 	that 	a 	showing 	of
employer 	intent 	is 	not 	necessary 	in 	proving 	a 	violation 	of 	this
section. 	The 	majority 	appear 	to 	intend 	to 	adopt 	a 	balancing
test 	in 	determining 	whether 	section 	3543.S(d) 	has 	been 	violated
since 	the 	decision 	mentions 	the 	finding 	that 	the 	District's
34

conduct
	was
	not
	based
	on
	"legitimate 	operational
	necessity."
To
	me,
	this
	implies,
	given
	the
	majority's
	holding
	in
	Carlsbad,
that
	if
	a
	district
	had
	a
	good
	reason
	for
	its
	action,
	the
district's
	interest
	would
	be
	balanced
	against
	the
	harm
	to
employees
	caused
	by
	the
	district's
	conduct.
	I
	agree 	with
	this
test,
	for
	the 	reasons
	put
	forth
	by
	the 	majority
	in
	Carlsbad:
district
	management
	has
	certain
	obligatory duties
	and	
responsi-
bilities,	
and
	inherent
	managerial
	interests
	coexist
	with
employee
	rights.
	In 	order 	to 	reconcile
	the
	two,
	a
	balancing
test 	is
	appropriate.
However,
	the 	majority
	opinion
	seems
	to
	indicate
	that
	a
finding
	that
	the
	District's
	behavior 	tended
	to
	discourage
membership
	in
	UFA
	would
	be
	sufficient
	to 	find
	a
	violation
	of
section
	3543.S(d).
	I
	disagree.
	The
	section
	clearly 	refers
only
	to
	encouraging
	employees
	to 	join
	any
	organization 	in
preference 	to 	another;
	discouragement
	is
	not
	mentioned.
	In
other
	words,
	to 	find
	a
	violation 	of
	this
	section, 	there
	must 	be
rival
	employee
	organizations
	and
	some
	showing
	of
	district
	con-
duct
	which 	seems
	to 	favor
	one
	organization
	over 	another. 	In
this
	case,
	it
	is
	quite 	likely 	that
	the
	District's
	action
	tended
to
	encourage
	membership
	in 	the 	Association 	in 	preference 	to
	UFA;
therefore,
	I
	would
	find
	a
	violation
	of 	section 	3543.S(d).
III.
	Other 	Findings
I
	concur
	in 	the 	Board's 	decision 	that 	the
	District
	must
provide
	UFA
	the 	information 	requested, 	that 	part-time
	employees
are 	entitled 	to 	compensation 	for 	the
	amount
	of 	pay
	lost
	because
of 	the 	District's 	discriminatory 	conduct, 	and
	that
	UFA's 	charge
35

alleging 	discriminatory 	discharge 	of 	James 	Shaw was 	not 	timely
filed. 	I 	agree 	with 	the 	notice; 	similarly, 	I 	agree 	with 	the
order, 	except 	as 	noted 	above.
r 	Ray6ond 	J. 	G6.za1 ✓s, 	Meciber
36

EDUCATIONAL
	EMPLOYMENT
	RELATIONS
	BOARD
OF
	THE
	STATE
	OF
	CALIFORNIA
In
	the
	Matter
	of
SANTA MONICA 	COLLEGE
	PART-TIME
FACULTY
	ASSOCIATION,
Charging
	Party,vs.
SANTA MONICA
	COMMUNITY
	COLLEGE
DISTRICT,
Respondent;
SANTA MONICA 	COLLEGE 	FACULTY
ASSOCIATION,
Intervenor.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
")
)
)
)
Unfair
	Practice
Case
	Nos. 	LA-CE-41
LA-CE-57
RECOMMENDED
	DECISION
(10/27 /77)
Appearances: 	Robert
	M.
	Dohrmann
	and
	Howard
	M.
	Knee,
	(Schwartz,
Steinsapir,
	Dohrmann 	&	
Krepack),
	for
	Santa
	Monica
	CollegePart-Time
	Faculty Association;
	Lee 	T.
	Paterson
	and 	Susan
	M.
Crockett 	(Paterson	
&	
Taggart), 	for
	Santa
	Monica 	Community
College
	District;
	Walter
	C.
	Appling
	(Richman 	&	
Garrett), 	for
Santa
	Monica
	College 	Faculty Association.
Before
	Franklin 	Silver,
	Hearing
	Officer.
PROCEDURAL
	HISTORY
On
	November 	15 	1976, 	Santa
	Monica
	College
Part-Time 	Faculty Association
1
filed
	an
	unfair 	practice
charge
	(No. 	LA-CE-41)
	against 	the 	Santa
	Monica 	Community
College
	strict
	containing 	following 	allegations:
1
Thereafter, 	the 	charging 	party 	changed
	its
	name
	to 	SantaMonica 	College 	United 	Faculty Association. 	At 	times 	herein
the 	charging 	party will 	be 	referred 	to 	as 	United 	Faculty
Association.
-1-

1.
	On
	or
	about
	June
	3, 	1976,
	the
Respondent,
	in
writing,
	refused
	to
	release
information 	to
	the
	Charging
	Party necessary
for
	it
	to
	properly 	represent
	its
	members.
Such
	information
	related
	to 	curtailment
and/or
	reduction
	in
	certificated 	staff.
2. 	Respondent
	interfered
with,
restrained
	and/or 	coerced
	employees
	on
	or
about
	May
	14, 	1976,
	when
	Respondent,
	via
management
	representative
	Frank
	Little,
conducted
	surveillance 	of
	a
	meeting
	of
Charging
	Party.
3.
	On
	or
	about
	May
	20, 	1976,
Respondent,
	by 	and
	through
	James
	D'Angelo,
a
	management
	representative,
	attempted 	to
dominate
	and/or
	interfere
with 	the	
forma-
tion	
and/or
	administration 	of
	Charging
Party
	by 	demanding
	that 	California
	Teachers
Association, 	the 	parent
	body
	of
	Charging
Party,
	revoke 	Charging
	Party's 	charter.
4.
	On
	and
	after
	May
	18,
	1976,
Respondent
	has,
	by 	and
	through
	James
D'Angelo 	and
	others,
	encouraged
	employees
to
	join
	organizations 	other
	than
	Charging
Party 	in 	preference 	to
	Charging
	Party.
5.
	On
	or
	about 	June 	17,
	1976
	through
and
	including 	the 	present,
	Respondent 	has
both
	failed
	and
	refused 	to
	meet 	and
	negotiate
in
	good
	faith
	with
	Charging
	Party 	in 	that
	it
performed
	the 	following
	acts.
a.
	On
	or
	about 	June
	23, 	1976 	andon
	several 	occasions
	thereafter,
	Respondent
conditioned
	its
	salary negotiations 	and/or
offers
	upon
	a
	mandatory waiver 	of 	rights
	to
collective 	bargaining
	on 	and
	after
	July
	1,
1976 	on
	the 	part 	of
	Charging
	Party.
b.
	On
	or 	about 	July
	12 	and 	17,
Respondent
	refused 	to
	meet 	and
	negotiate
in
	good
	faith 	with 	Charging 	Rarty with
respect 	to 	salaries.
-2-

6.
	On
	or
	about
	July
	2,
	1976,
Respondent,
	th~ough 	Deputy
	Superintendent
Moore,
	in
	writing,
	interfered
	with
	the
administration 	of
	Charging
	Party
	and
encouraged
	employees
	to
	join
	other	
organi-
zation(s) 	in
	preference
	to
	it
	by	
untruth-
fully	
reporting
	the
	status
	of
	ResDondent's
negotiations
	with
	Charging
	Party.2
It
	was
	alleged 	generally
	that
	the
	above
	conduct
violated
	Sections 	3543.5(a), 	(b),
	(c),
	and 	(d)
3
of 	the
Educational
	Employment
	Relations
	Act
	(EERA).
The
	District 	filed
	an
	answer 	denying
	that
	it
committed
	any
	unfair 	practices.
	At
	the
	same
	time
	the
District 	filed
	a
	motion
	to
	dismiss
	(1)
	all
	charges
	relating
to
	conduct
	which
	occurred
	prior
	to
	July
	1,
	1976
	on
	the
	grounds
that
	the
	unfair 	practice
	provisions
	of
	the
	EERA
	became
effective
	on
	that
	date
	and
	cannot 	be
	applied
	retrospectively,
and
	(2)
	all
	charges
	alleging 	refusal
	to
	meet 	and
	negotiate
on
	the
	grounds
	that
	the 	charging
	party
	was
	not 	alleged 	to 	be,
and
	was
	not,
	an
	exclusive 	representative
	with
whom
	the
	District
was
	required 	to
	negotiate. 	Thereafter, 	the
	District 	filed
	a
motion
	to 	dismiss 	paragraph
	2
	of
	the 	charge
	on
	the
	grounds
2
At
	the 	hearing, 	the
	allegation 	in
	paragraph
	5(b)
	of 	the 	charge
that 	there
	was 	a
	refusal
	to
	meet 	and
	negotiate
	on
	July
	17
	was
amended
	to
	conform
with 	the 	evidence
	that 	the
	conduct 	occurred
on
	July
	19.
3
All
	statutory 	references 	herein 	are 	to 	the
	Government 	Code
unless 	otherwise 	noted.
Section
	3543.5
	provides
	in 	part
	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 	discriminate
against
	employees, 	or 	otherwise 	to
	interfere with,
restrain, 	or 	coerce 	employees 	because 	of 	their 	exercise
of 	rights 	guaranteed by
	this 	chapter.(b) 	Deny
	to
	employee
	organizations 	rights 	guaranteed
to
	them by
	this 	chapter.(c) 	Refuse 	or 	fail 	to 	meet 	and
	negotiate 	in
	good
faith 	with an 	exclusive 	representative.(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
PmplnyPP!C: 	t-n
	jnin
	.::iny 	rYrg.::ini7.::it-inn
	in	
pre:>-FPrPnCP 	t-n 	annt-hPr.
-3-

_that
	the 	alleged
	misconduct
	occurred
	outside 	the
	six-month
limitations
	period 	for
	the
	filing
	of
	unfair 	practice
charges.
On
	February
	22,
	1977
	the
	United
	Faculty Association
filed
	an
	amendment
	to
	its
	charge,
	alleging
	that
	the
	charge
was
	filed
	within
	six
months
	of
	the
	conduct
	alleged 	in
	para-
graph
	2.
	Paragraph
	5
	of 	the
	charge
was 	amended
	to 	read:
On
	or
	about 	June 	17,
	1976
	through
	and
including 	the
	present,
	the
	Respondent
has,
	by
	virtue
	of
	the 	foregoing
	acts
and
	those
	alleged
	hereinafter,
	engaged
in
multiple
	and
	pervasive
	unfair 	practices
with 	the
	intent
	of
	undermining
	the majority
support
	of
	employees
	of 	the
	Respondent
	in
an
	appropriate
	unit,
	which
	majority
	was
established
	and
	proven
	to
	Respondent
	on
and
	after
	May
	21, 	1976.
	In
	addition,
Respondent 	performed
	the 	following
	acts:
a.	
(Unchanged 	from
	original
	charge)
b.
·. (Unchanged 	from
	original
	charge)
c.	
On
	or
	about 	June.30,
	1976,
Respondent
	interfered
with 	the
administration 	of 	the
	Charging
Party
	and 	encouraged
	employees
to
	join
	another 	organization 	inpreference 	to
	it
	and	
discrimin-
atorily	
granting 	to
	employees
represented
	by
	the 	other	
organ-
ization	
a
	larger
	pay
	increasethan
	that 	offered 	to
	certificated
employees
	represented
	by
	the
Charging
	Party.
At
	the 	hearing 	in 	this
	matter, 	the
	Dis
	ct
	ag
moved
	to 	dismiss 	paragraph
	2 on
	the 	basis 	of 	the
	statute
	of
limitations,
	and 	S(b) 	on
	the 	basis 	of 	the
	failure
	to 	allege
that
	the 	charging 	party
was
	exclusive 	representative.
	The
District 	also
	renewed
	its
	motion 	to 	dismiss
	all
	charges 	based
on 	conduct which 	occurred 	prior 	to 	July 	1, 	1976.
	ings
	on
these motions 	were 	reserved 	at 	the 	time
	of hearing
	and
	are
included 	in 	this
	recommended
	decision.
It
	has 	been 	the 	position 	of 	the 	United 	Faculty
Association 	that 	paragraph 	5, 	as 	amended,
	alleges
	a
	violation
-4-

4
of
	Section
	3543.S(c)
	in 	that
	under
	federal
	precedent	
and
	a
previous
	EERB
	hearing
	officer's
	decision
which
	has
	become
5
final,
	the
	charges,
	if
	proven,
	would
	entitle
	the
	United
Faculty Association
	to
	an
	order
	that
	the
	District
	bargain
with
	it
	as
	an
	exclusive
	representative.
Prior
	to
	the 	hearing, 	the
	Santa
	Monica
	College
Faculty Association
6 was
	allowed
	to
	intervene 	in
	this
	matter
on
	the
	basis 	of
	its
	status
	as
	a
	competing
	employee
	organiza-
tion 	in
	the
	representation
	matter
	pending
	with
	respect 	to
certificated
	employees
	of 	the
	District
	(Case
	No.
	LA-R-743).
On
	January
	10, 	1977,
	a
	second
	charge
	was
	filed
against 	the
	District
	by
	the
	United
	Faculty Association
(Case
	No. 	LA-CE-57).
	This 	charge
	alleged
	that
	the
	District
refused 	to
	rehire
	James 	Shaw
	in
	September
	of
	1976
	because
of
	his
	organizational
	activities
	for
	the 	charging
	party
during 	the 	previous 	school 	year.
	The
	District
	denied
	the
charge
	and
moved
	to 	dismiss
	on
	the
	grounds
	that
	Mr. 	Shaw
was
	informed
	oh May
	14,
	1976
	that
	he
	would
	not
	be
	offered
a
	teaching
	position 	for 	the
	fall
	semester,
	and
	that
	the
notice 	of 	termination
was
	given
more
	than
	six
months
	before
the
	filing
	of
	the 	charge.
	The
	motion
	to 	dismiss
	was
	renewed
at
	the 	hearing,
	and
	a
	ruling
	was
	reserved.
	The
	motion
	to
dismiss
	is
	determined
	in
	accordance with
	this
	recommended
decision.
An
	informal 	conference
was
	held
	on
	both 	charges,
ands
	no
	settlement
	was
	reached, 	the 	charges
	were
	set
for
	formal
	hearing. 	This
	matter
	was
	heard
	in
Los
	Angeles
on May
	2-4, 	1977.
4
NLRB
	v.
	Gissel 	Packing 	Go., 	5 U.S. 	575, 	71
	LRRM
	2481 	(1969).
5
california
	School 	Employees
	Association v. 	Tustin 	UnifiedSchool
	District,
	EERB
	Decision
	No. 	HO-U-2, 	March 	16, 	1977.
(Case 	No. 	LA-CE-25).
6 At 	times 	the 	intervenor will 	be 	referred 	to 	herein 	as 	simply
the 	Faculty Association 	(as 	opposed 	to 	the 	United 	Faculty
Association).

ISSUES
l.
	Whether
	conduct
	which
	occurred
	prior
	to
	July
	1,
1976
	may
	be
	the
	basis 	of
	unfair 	practices;
2. 	Whether
	the
	allegations 	of 	the
	unfair 	practice
charges
	may
	support
	a
	bargaining 	order
	remedy;
3. 	Whether
	the
	District
	improperly
	refused
	to
release
	information 	to 	the 	United
	Faculty Association
	on
June 	3,
	1976;
4.
	Whether
	the
	allegation
	of
	illegal
	surveillance
which
	occurred
	on
	May
	14,
	1976
	is
	barred
	by
	the
	statute
	of
limitations,
	and,
	if
	not,
	whether
	Frank
	Little,
	acting
	as 	an
agent
	of
	the
	District,
	conducted
	illegal
	surveillance
	on
	that
date;
5. 	Whether 	James
	D'Angelo,
	acting
	as 	an
	agent
	of
the
	District,
	has
	interfered
	with 	the
	administration 	of or
discouraged
	membership
	in 	the
	United
	Faculty 	Association;
6. 	Whether
	the
	District
	encouraged
membership
	in
another 	organization 	in 	preference 	to 	the
	United
	Faculty
Association 	in
	connection with 	the
	salary
	discussions
	which
occurred 	in
	June 	and
	July 	of
	1976;
7. 	Whether
	the
	charge
	that
	James
	Shaw was
	the
subject 	of
	a
	discriminatory 	termination
	is
	barred
by
	the
statute
	of 	limitations,
	and,
	if
	not,
	whether
	there
	was
	a
discriminatory 	termination 	of
	employment;
8.
	What
	remedy,
	if
	any,
	is
	appropriate.
-6-

DISCUSSION
A.
	Retrospective
	application
	of
the
	unfair 	practice
provisions
	otthe
	EERA.
Initially
	it
	is
	necessary 	to 	consider 	the
	District's
motion
	to 	dismiss
	all
	charges 	based
	on
	conduct
	which
	occurred
prior
	to 	July
	1,
	1976.
	The
	District
	contends
	that
	the
	unfair
practice
	provisions 	of
	the
	EERA
may
	not
	be
	applied 	retrospec-
tively,	
in 	that 	at
	the
	time
	the
	conduct
	occurred 	the
	Legislature
had
	not 	yet
	implemented
	those
	provisions.
	In
	San
	Dieguito
Faculty 	Association
	v.
	San
	Dieguito
	Union High
	School
	District.,
EERB
	Decision
	No. 	22
	(September
	2,
	1977),
	the
	EERB
	characterized
a
	similar
	contention
	as
	a
	challenge
	to 	the
	constitutionality
of
	Senate
	Bill
	1471,
7
which,
	effective
	July
	10, 	1976,
	amended
the
	EERA
	to
	make
	the
	unfair 	practice
	provisions 	operative
	on•
April
	1,
	1976,
	rather
	than
	July
	1
	as
	originally
	enacted.
Relying
	on Hand
	v.
	Board
	of
	Examiners
	In
	Veterina.ry Medicine,
66
	Cal.App.3d
	605, 	618-620
	(1977),
	the
	EERB
	concluded
	that
	as
a
	statutory
	agency
	it
	lacked
	authority
	to
	find
	SB
	1471	
uncon-
stitutional.	
Therefore,
	as
	in
	San
	Dieguito, 	the
	District's
contention
	is
	rejected
	and
	the
	motion
	to 	dismiss
	is
	denied.
B.
	The
	propriety 	of
	a
	bargaining 	order
	under
	the
	allegations
of
	the
	unfair 	practice
	charges.
The
	charging
	party
	has
	raised
	an
	additional 	issue
which
	affects 	the 	legal 	posture 	of 	several 	of
	its
	a1legations
and which
	therefore
	can most
	conveniently be 	considered
	at
	the
outset.
	In 	the
	amendment
	to
	LA-CE-41,
	filed
	February 	22, 	the
United 	Faculty Association 	charged
	that 	the
	District
	had
"engaged
	in multiple
	and
	pervasive 	unfair 	practices 	with 	the
intent 	of
	undermining 	the majority 	support 	of
	employees
the
	an
	e 	,
	which
	maj
	ty
was
estab 	shed 	and 	proven 	to 	Respondent 	on 	and
	after
	May
	21, 	1976."
On
	the 	basis 	of 	this 	allegation, 	the 	United 	Faculty Association
has 	asked 	that 	the 	District
	be 	ordered 	to 	bargain with
	it
	as
7
chapter 	421 	of 	the 	Statutes 	of 	1976.
-7-

the 	exclusive 	representative 	of 	the 	unit 	petitioned 	for.
In 	addition, 	the 	United 	Faculty Association 	has 	argued 	that
it 	has 	properly 	relied 	on 	Section 	3543.5(c) 	in making 	certain
of 	its 	allegations, 	in 	that 	under 	the 	circumstances 	of 	this
case 	the 	District was, 	at 	the 	time 	the 	alleged misconduct
occurred, 	obligated 	to 	negotiate with 	the 	United 	Faculty
Association 	as 	exclusive 	representative, 	even 	though 	no
exclusive 	representative 	had been 	formally 	recognized 	or
certified.
The 	contentions 	of 	the 	United 	Faculty As.sociation
are 	grounded 	on 	the 	United 	States 	Supreme 	Court's 	decision
in 	NLRB 	v. 	Gissel 	Packing 	Co., 	395 	U.S. 	575, 	71 	LRRM 	2481
(1969). 	In 	that 	case, 	the 	Court 	found 	that 	it was 	appropriate
to 	order 	an 	employer 	to 	bargain with 	a 	union where 	the 	company
had 	rejected 	a 	request 	for 	recognition based 	upon 	authorization
cards 	of 	a 	majority 	of 	employees 	in 	an 	appropriate 	unit while
at 	the 	same 	time 	committing 	serious 	unfair 	labor 	practices
that 	tended 	to 	undermine 	the 	union's 	majority, 	making 	a 	fair
election 	unlikely. 	In 	reaching 	that 	conclusion, 	the 	Court
first 	decided 	that 	a 	certification 	election 	is 	not 	necessary
to 	establish a 	duty 	to 	bargain, 	and 	that 	recognition 	of 	a
union 	as 	exclusive 	representative 	is 	proper where 	the 	union
presents 	"convincing 	evidence 	of majority 	support." 	Thus, 	as
a 	precondition 	to 	a 	bargaining 	order, 	it 	ordinarily must 	be
found 	that 	the 	employer 	at 	some 	point 	could have 	properly
granted 	voluntary 	recognition 	to 	the 	union, 	and 	that 	its
failure 	to 	do 	so 	while 	at 	the 	same 	time 	committing 	serious
unfair 	labor 	practices 	supports 	the 	comparatively 	extreme
remedy 	of a 	bargaining 	order.
A second 	doctrine 	of 	federal 	labor 	law 	is 	also
relevant 	to 	the 	present 	circumstances. 	Under 	the Midwest
Piping 	doctrine,8 an 	employer 	illegally 	contributes 	support
8 see, 	Midwest 	Piping 	Co., 	Inc., 	63 	NLRB 	1060, 	17 LRRM 40 	(1945).
-8 -

to
	a
	labor 	organization
	by
	granting 	recognition
	to
	one
	of
	two
or
	more
	competing
	unions 	pending
	determination
	of 	the 	"question
of 	representation"
	by
	the
	NLRB.
	There
	is
	no
	statutory
definition
	of
	what
	constitutes
	a
	question
	of 	representation
in
	the 	federal 	labor
	law,
	and
	this
	issue
	has 	been
	litigated
9	
repeatedly 	in
	determining
	whether
	a
	recognition
	was
	valid.
In
	contrast,
	however,
	the
	EERA
	is 	explicit
	as
	to
	when
	the 	existence
of
	competing
	organizations
	raises
	a
	question
	of 	representation.
Article
	5
	of
	the
	EERA
	(Sections
	3544
	et~.)
	sets
	forth 	the
10	
basis
	and
	procedure
	for 	establishing 	representative
	status.
9
see 	cases
	cited
	in
	Morris,
	ed.,
	The
	Developing 	Labor
	Law
(B.N.A.,
	1971), 	pp.
	142-146, 	and
	its
	cumulative 	supplement
for
	1971-1975
	(B.N.A., 	1976),
	pp. 	81-85.
lOThe
	relevant
	provisions 	are
	as 	follow:
3544.
	An
	employee
	organization
	may become
	the 	exclusive
representative 	for
	the
	employees
	of
	an
	appropriate
	unit
for
	purposes
	of
	meeting
	and
	negotiating
	by
	filing
	a
	requestwith
	a
	public
	school
	employer
	alleging 	that
	a
	majority
of
	the
	employees
	in
	an
	appropriate
	unit
	wish
	to
	be
represented
	by 	such
	organization
	and
	asking 	the 	public
school
	employer
	to 	recognize
	it
	as
	the 	exclusive 	repre-
sentative.	
The
	request
	shall
	describe 	the
	grouping
	of
jobs
	or 	positions
	which
	constitute
	the
	unit
	claimed
	to
be
	appropriate
	and
	shall
	include 	proof 	of majority 	support
on
	the basis 	of 	current
	dues
	deduction
	authorizations 	or
other
	evidence 	such 	as
	notarized
	membership
	lists,
	or
membership
	cards, 	or
	petitions
	designating 	the 	organiza-
tion	
as
	the 	exclusive 	representative 	or 	the
	employees
....
3544.1 	The
	public
	school 	employer
	shall 	grant
	a
	request
for 	recognition
	filed
	pursuant 	to 	Section
	3544
	unless:
(a)
	The
	public 	school 	employer
	desires 	thatrepresentation 	election
	be 	conducted
	or
	doubts 	the
appropriateness 	of
	a
	unit.
	If
	the 	public 	school 	employer
desires
	a
	representation 	election, 	the 	question 	of 	repre-
sentation 	shall
	be
	deemed
	to
	exist
	and
	the 	public 	schoolemployer
	shall 	notify 	the 	board, 	which
	shall
	conduct
	a
representation 	election 	pursuant 	to 	Section
	3544.7
...
(b) 	Another 	employee
	organization 	either 	files
with 	the 	public 	school 	employer 	a
	challenge 	to 	the 	appro-
priateness 	of 	the 	unit 	or 	submits
	a 	competing 	claim of
representation within
	15 workdays
	of 	the 	posting 	of notice
of 	the written 	request.
	The.
	claim 	shall
	be 	evidenced by
current 	dues 	deductions 	authorizations 	or 	other 	evidence 	such
as 	notarized membership
	lists, 	or membership 	cands, 	or 	petitionssigned by 	employees 	in 	the 	unit 	indicating 	their 	desire 	to
be 	represented by 	the 	organization. 	If 	the 	claim 	is 	evidenced
(con't)
-9-

An
	employee
	organization
must
	first
	file
	a
	request
	for	
recogni-
tion	
accompanied
	by
	proof
	of
majority
	support.
	Under
	Section
3544.l(b),
	another
	employee
	organization
may
	file
	within
	15
workdays
	a
	competing
	claim
	of 	representation
	for 	the
	same
	unit
originally
	requested,
	and
	if
	"the
	claim
	is
	evidenced
by
	the
support
	of
	at 	least
	30
	percent 	of
	the
	members
	of
	an
	appropriate
unit,
	a
	question
	of 	representation
	shall
	be
	deemed
	to
	exist
	and
the 	public
	school
	employer
	shall 	notify
	the
	board
which
	shall
conduct
	a
	representation 	election
	pursuant 	to
	Section
	3544. 7.
If
(Emphasis
	added.)
	The
	use
	of
	the
	term
	"question
	of 	representa-
tion"
	by
	the
	Legislature
	cannot be
	considered
	accidental 	in
view
	of 	the
	established
	usage
	of
	that
	term under
	federal 	labor
law.
	It
	must 	be 	concluded
	that
	the 	Legislature
	intended
	by
its
	use
	of 	that
	term
	that
	an
	employer
	is
	precluded
	from
	granting
recognition 	to
	an
	organization
	claiming
majority
	status
	where
another organization 	presents 	proof
	of 	at 	least
	30
	percent
support
	in 	the
	same
	unit.
	In
	a
	case
where
	a
	question 	of
representation
	exists,
	it
	follows
	that
	the 	precondition
	for
	a.
bargaining 	order
	under
	Gissel,
	i.e.,
	that 	at
	one
	point 	the
employer
	could have
	properly 	granted voluntary 	recognition,
11
has
	not
	been
	established.
10
ccon't)	
by
	the 	support
	of 	at 	least
	30
	percent 	of 	the
	members
of
	an
	appropriate 	unit,
	a
	question of 	representation 	shall
be
	deemed
	to
	exist
	and
	the 	public 	school
	employer
	shallnotify
	the board
which
	shall
	conduct
	a
	representation
election
	pursuant 	to 	Section
	3544.7
....
11 The
	District
	claims
	that 	there
	can never
	be
	a
	bargainingor 	under 	the
	EERA
because 	Sect 	3544.l(a) 	gives 	the
employer 	an
	unqualified 	right
	to
	deny
	recognition
	and
	request
an
	election.
	That
	there
	is
	such 	an
	unqualified 	right 	is
	not
altogether 	clear 	since 	the
	Court
	in 	Gissel 	rejected
	a
	similar
argument 	bas
	on
	Sect 	9(c)(l)(B)
	of 	the 	National 	Labor
Relations 	Act, 	as
	amended. 	29
	U.S.C.
	159(c)(l)(B), 	see,
LRRM
	at
	2490. 	Because 	conclus
	,
	it
is
	not 	necessary 	to 	determine
	this 	question.
It
	should be noted 	that 	there 	is 	another 	serious 	question
with 	regard 	to 	the 	propriety 	of
	a
	bargaining 	order 	in 	thiscase. 	The
	request 	for 	recognition 	submitted by 	the 	Uriited
Faculty Association was
	for
	a
	unit 	of 	all 	certificatedemployees, 	excluding management, 	supervisory 	and 	confidential
(con't)
-10-

The 	record 	in 	this 	case 	demonstrates 	that 	the
United 	Faculty Association 	presented 	a 	request 	for 	recognition
accompanied by 	evidence 	of majority 	support, 	and 	that 	the
Faculty Association 	thereafter 	filed 	a 	competing 	claim of
representation 	for 	the 	same 	unit 	accompanied by 	evidence 	of
at 	least 	30 	percent 	support. 	Therefore, 	a 	question 	of 	repre-
sentation 	is 	deemed 	to 	exist 	under 	the 	provisions 	of 	the 	EERA,
and 	the 	employer 	is 	and has 	been 	precluded 	from 	granting
recognition 	to 	the 	United 	Faculty Association 	even 	though 	it
presented 	evidence 	of majority 	support. 	For 	this 	reason, 	the
request 	for 	a 	bargaining 	order 	is 	rejected.
C. 	Factual 	background 	of 	the 	charges.
These 	charges 	arise 	in 	the 	context 	of 	a 	very 	unusual
organizational 	history. 	Prior 	to 	1970, 	what 	is 	now 	Santa
Monica 	Community 	College was 	a 	part 	of 	the 	Santa Monica 	Unified
School 	District, 	and 	faculty members who 	belonged 	to 	the
California 	Teachers 	Association 	did 	so 	through membership 	in
the 	Santa Monica 	Classroom Teachers 	Association. 	The 	Faculty
Senate was 	established 	for 	full-time 	teachers 	at 	the 	college
in 	1968 	for 	the 	purpose 	of 	providing 	the 	administration with
faculty 	recommendations 	on 	various 	aspects 	of 	college 	policy.
The 	Santa Monica 	College 	Faculty Association 	at 	that 	time
operated 	as 	an 	arm 	of 	the 	Faculty 	Senate, 	and 	all 	officers
of 	the 	Senate 	held 	equivalent 	positions 	in 	the 	Faculty
11 (con't) 	employees. 	The 	employer, 	responding 	to 	the 	t,
questioned 	the 	appropriateness 	of 	such 	a 	Under
Rios 	Community 	College 	District, 	EERB 	De 	sion 	No. 	18
1977), 	it would 	appear 	that 	the 	unit 	requested was 	inappropriate
in 	that 	it 	included 	even 	those 	part-time 	instructors 	who 	had
not 	taught 	"the 	equivalent 	of 	three 	or more 	semesters 	during
the 	last 	six 	semesters 	inclusive." 	Ibid. 	at 	p. 	12. 	Therefore,
it would 	appear 	that 	another 	precondition 	for 	a 	bargaining
order 	has 	not been 	established.
-11-

Association
	under
	a
	joint
	constitution.
	In
	1970,
	the
Community
	College
	District
	was
	established
	as
	a
	separate
entity,
	but 	the 	Faculty Association
	did 	not
	apply
	for
	a
separate
	CTA
	charter.
	Rather,
	the 	Faculty Association
simply
	remained
	an
	arm
	of
	the 	Faculty 	Senate,
	and
	faculty
members
	who
	belonged
	to
	CTA
	continued 	to
	be
	provided
with
CTA
	services 	apparently
	through
	a
	loose
	affiliation
	with
the
	Santa
	Monica
	Classroom Teachers
	Association.
Part-time 	faculty
	members
	were
	not 	included
	in
either
	the 	Faculty
	Senate
	or
	the 	Faculty Association.
	In
December
	of
	1974, 	however,
	the
	Senate
	established
	an 	ad 	hoc
committee
	to
	investigate
	and
	make
	recommendations
	with
	respect
to 	the
	problems
	of 	part-time 	faculty
	members.
	This 	committee
established
	on-going
	communication
with
	certain
	part-time
teachers.
	Out
	of 	these
	activities,
	there
	was
	established
a 	momentum 	among
	part-time 	instructors
	to
	establish
	their
	own
organization,
	and
	in 	the
	fall
	of
	1975
	the
	Part-Time
	Faculty
Association
	(later
	to
	become
	the
	United
	Faculty Association)
was
	created with
	its
	own
	officers, 	constitution,
	and
by-laws.
Shortly
	thereafter,
	the
	Part-Time
	Faculty Association 	applied
for
	and
was
	granted
	a
	separate
	CTA
	charter.
	This
	created
	a
controversy
	on
	the
	campus
	as 	to 	whether
	a
	separate 	part-time
association
	should 	gain
	status
	as
	a
	CTA
	affiliate,
	and
various
	communications
	occurred
	between
	faculty
	members
	and
representatives 	of
	CTA
	in
	an
	effort
	to 	resolve 	the 	dispute.
In 	addition, 	there
	were
	several 	attempts
	among
	part-time
	and
full-time 	faculty
	members
	to 	find
	a
	basis 	for 	consolidating
the
	two
	associations 	into
	a
	single 	association, 	but 	these
attempts 	failed. 	Specific 	aspects 	of 	this 	dispute
	between
the
	two
	associations 	are 	dealt 	with
	more
	fully 	be
connection with 	specific 	charges.
-12-

On May 	21, 	1976, 	the 	United 	Faculty Association
filed 	a 	request 	for 	recognition 	for 	a 	unit 	of 	all 	certificated
employees 	of 	the 	District, 	excluding management, 	supervisory
and 	confidential 	employees. 	The 	proposed 	unit was 	estimated
to 	total 	790 	employees, 	and 	evidence 	of 	support 	of 	a 	majority
of 	these 	employees 	was 	submitted 	along with 	the 	request 	for
recognition. 	On 	June 	11, 	the 	Faculty Association 	intervened
with 	evidence 	of 	at 	least 	thirty 	percent 	support. 	The 	District,
on 	June 	14, 	filed 	a 	response with 	the 	Los 	Angeles 	Regional
Office 	of 	the 	EERB 	doubting 	the 	appropriateness 	of 	a 	combined
part-time/full-time 	bargaining 	unit 	and 	in 	addition 	contesting
the 	majority 	showing 	of 	the 	United 	Faculty Association. 	This
representation 	matter 	is 	still 	pending 	before 	the 	EERB.
On 	June 	18, 	1976, 	the 	Faculty Association 	formally
adopted 	a 	constitution 	separate 	from 	that 	of 	the 	Faculty
Senate 	providing 	for 	separately 	elected 	officers.
D. 	The 	charge 	that 	the 	District 	refused 	to 	furnish 	information.
1. 	Findings 	of 	fact.
On March 	29, 	1976, 	Rose 	B. 	Drummond, 	President 	of
the 	United 	Faculty Association wrote 	to 	Dr. 	Richard 	L. 	Moore,
President/Superintendent 	of 	the 	District, 	asking 	for 	certain
information 	pertaining 	to 	the 	anticipated 	layoff 	of 	numerous
part-time 	instructors. 	Moore was 	asked 	to 	give 	the 	extent
of 	anticipated 	loss 	in average 	daily 	attendance 	and 	cutbacks
in 	state 	support 	as 	well 	as 	the 	criteria 	to 	be 	used 	in
determining 	course 	curtailment 	and 	reduction 	of 	certificated
staff. 	Moore 	responded 	to 	the 	first 	part 	of 	the 	request 	but
stated 	that 	the 	question 	concerning 	criteria 	for 	possible
reduction 	in 	certificated 	staff had been 	referred 	to 	legal
counsel 	for 	advisement, 	and 	that 	after 	receiving 	a 	response
he would make 	the 	information 	available.
-13-

On
May
	24 	Drummond
	again
wrote
	to
	Moore,
	this
	time
stating 	that
	since 	the
	previous
	correspondence
	the
	United
Faculty Association
	had 	been
	made
	aware
	of
	the 	dismissal
	of
142
	part-time 	faculty
	members. 	Drummond
	wrote,
	"Once
	again,
may we
	request
	that
	you
	notify
	us
	of
	the
	criteria
	by which
these 	Faculty
	members
	were
	selected
	so
	that
	we
	may
	ascertain
whether
	or not
	their
	legal 	rights
	have been
	upheld."
At
	the
	hearing
	it
	was
	established 	that
	there
	were
actually
	144
	part-time 	faculty
	members who
	were
	notified
by
	letters
	dated
May
	14
	that
	they
would
	not
	be
	offered
teaching
	positions 	for
	the 	following
	fall
	semester.
	These
letters
	were
	signed
	by
	Herbert
	E. 	Roney, 	Dean
	of
	Continuing
Education.
	On
	May
	27 	Drummond
	wrote
	to
	Roney
	asking
	for
	a
list
	of 	part-time 	faculty
	members who
	received 	the
	May
	14
dismissal
	letter
	and
	the
	dates
	of 	service
	and
	class
	loads
of
	those
	faculty
	members
	during
	the
	last
	three
	year 	period.
On
	June 	3,
	Dr.
	Moore
	responded
	to
	Ms. 	Drummond's
letters
	of
May 	24
	and
	27
	stating,
	"
....
	we_
are
	very 	concerned
about
	the 	privacy
	of
	those 	facult·y
	members
	involved
	and
will·
not
	release
	the 	information
	asked
	for
	unless.that
	information
is
	requested
	directly
	by
	and
	released
	to
	individual 	faculty
members." 
Ms. 	Drummond
	testified
	that
	she 	had
	requested 	the
information 	for
	the 	purpose
	of
	knowing
	"whether
	or not
	any
of 'these 	faculty
	members
	fall
	within 	our
	interpretation 	of
11
the
	Ed. 	Code, 	1333 7
..
5.
12
It
	was
	her 	testimony
	that 	this
was
	in
	connection with
	litigation 	that
	was
	"pending"
	at
the 	time. 	Actually, 	the 	lawsuit
	which 	sought 	to
	establish
tenure
	rights 	for 	certain part-time 	teachers
	was
	not
	filed
until
	August 	2. 	Although
witnesses 	for 	the
	District
	were
	also
confused 	as 	to 	whether 	the 	lawsuit
	had
	actually
	been
	filed
earlier,
	they
	testified
	credibly 	that
	they were 	aware
	that
such 	a
	suit
	was
	being 	prepared. 	In 	fact, 	the 	information
requested 	by Drummond was
	later
	subpoenaed
	in 	connection with
the 	lawsuit.
12
Education 	Code 	Section 	13337.5 	has 	been 	reenacted 	substantiallywithout 	change 	as 	Section 	87482 	of 	the 	Reorganized 	EducationCode, 	effective April 	30, 	1977.
-1!+-

2. 	Conclusions 	of 	law.
Under 	federal 	precedent, 	the 	duty 	of 	an 	employer 	to
bargain with 	an 	exclusive 	representative 	includes 	the
corollary 	duty 	to 	supply, 	upon 	request, 	sufficient 	information
to 	allow 	the 	union 	to 	properly perform 	its 	statutory 	duties
as 	bargaining 	agent. 	Eg., 	Curtiss-Wr~ght Gorp. 	v. 	NLRB,
347 	F.2d 	61, 	59 	LRRM 	2433 	(3rd 	Cir., 	1965). 	It 	has 	previously
been 	concluded 	(see, 	part 	B, 	supra) 	that 	the 	United 	Faculty
Association 	cannot 	make 	a 	valid 	claim 	to be 	exclusive 	repre-
sentative while 	an 	unresolved 	question 	of 	representation
exists, 	based 	on 	the 	competing 	claim 	of 	the 	Faculty Association.
Therefore, 	if 	the 	District 	was 	under 	a 	duty 	to 	release 	the
requested 	information, 	it 	must 	be 	based upon 	Section 	3543.5(b)
(which makes 	it 	unlawful 	to 	deny 	employee 	organizations 	rights
guaranteed by 	the 	EERA) 	and 	3543.l(a) 	(which 	gives 	employee
organizations 	the 	"right 	to 	represent 	their 	members" 	in 	the
absence 	of 	an 	exclusive 	representative).
In 	San 	Dieguito 	Faculty Association 	v. 	San 	Dieguito
Union High 	School 	District, 	supra, 	the 	EERB 	recognized 	only 	a
very 	limited 	scope 	to 	the 	rights 	granted 	to 	employee 	organization
pending 	determination 	of 	an 	exclusive 	representative. 	Specif-
ically, 	it was 	found 	that 	under 	such 	circumstances 	an 	employer
may, 	but 	is 	not 	required 	to, 	consult with 	an 	employee 	organiza-
tion. 	It 	follows 	that 	if 	an 	employer 	is 	under no 	duty 	to 	consult
with 	a 	non-exclusive 	representative, 	there 	is 	no 	corollary
duty 	to 	furnish 	information. 	Therefore, 	the 	charge 	contained
in 	paragraph 	1 	of LA-CE-41 	must 	be 	dismissed.
Because 	this 	charge 	is 	dismissed, 	it 	is 	unnecessary 	to
consider 	the 	District's 	argument 	that 	the 	information 	requested
was 	not 	d 	to matters 	scope 	of 	representation
(see 	Section 	3 	. 2), 	or 	to 	consi 	ther 	an 	must
supply 	information 	requested 	in 	relation 	to 	litigation 	rather
than 	negotiations.
-15-

E. 	The
	charge
	of
	illegal
	surveillance.
1.
	The
	statute
	of
	limitations.
On
	November
	15,
	1976
	the
	United
	Faculty 	Association
filed
	the
	charge
	alleging,
	inter 	alia,
	that
	Frank
	Little,
	a
management
	representative,
	conducted
	surveillance 	of
	an
organizational
	meeting
	on
	the 	previous
	May
	14.
	The
	charge
was
	filed
	six
months 	and 	one 	day
	after
	the 	alleged
	misconduct,
and
	the
	District
	moved
	to 	dismiss
	this
	allegation
	on
	the
	basis
of 	Section
	3541.S(a)
(1).
	The
	charging
	party
	contends
	that
since
	November 	14 was
	a
	Sunday,
	under
	Code
	of 	Civil
	Procedure
Section
	1213
the
	filing
	of
	the
	charge
	on
	the 	following
	Monday
was
	within 	the
	six-month
	statute
	of
	limitations.
	The
	District
contends
	without
	citation 	that
	the
	filing
	of
	an
	unfair 	practice
charge
	with 	the
	EERB
	is
	not
	covered
	by
	Section
	12
	and
	that
	the
limitations
	period 	for 	the
	filing
	of 	unfair 	practice
	charges
must
	be
	computed
	strictly
without 	allowing
	an
	extension
	for
the
	fact 	that
	the
	final
	day
	of
	the 	period
	falls
	on
	a
	holiday.
Section
	12 	on
	its
	face,
	however,
	applies 	to
	"any
	act
	provided
by
	law." 	Quite
	clearly,
	the
	filing
	of
	an
	unfair 	practice
charge
	is
	such 	an
	act.
	Therefore, 	the 	charge
was
	properly
filed
	within
	the
	statute
	of 	limitations
	and
	the
	District's
motion
	to 	dismiss
	is
	denied.
2.
	Findings
	of 	fact.
On May
	14
	a
	meeting
	was
	ld 	to 	discuss
	a 	common
approach
	to 	negotiations 	with 	the
	District
	by
	the 	United
Faculty 	Association
	and
	the 	Faculty Association/Senate.
13
code
	of 	Civil 	Procedure 	Section
	12
	states:
The 	time 	in
	which 	any
	act 	provided by 	law
	is 	to 	be
done
	is
	computed by 	excluding 	the
	first
	day and
including 	the 	last, 	unless 	the 	last
	day
	is
	a
	holiday,
and 	then
	it 	is 	also 	excluded.
-16-

(At
	this
	point 	there
	was
	no
	clear 	delineation
	between
	the
Faculty Association
	and
	the
	Senate
	since 	the 	Faculty
Association
	did 	not
	adopt
	its
	separate
	constitution
	until
June
	18.)
	Although
	the 	record
	is
	somewhat
	vague
	on
	this
point,
	it
	appears
	that
	Rose
	Drummond
	extended
	invitations 	to
three
	specific 	full-time 	faculty
	members
	to
	attend
	the
	United
Faculty Association 	executive
	committee
	meetings
	scheduled
	for
May
	4.
	In
	fact,
	however,
	eight 	full-time 	instructors
	came
	to
the
	meeting,
	and
when
	the 	eight
walked
	in
	together 	various
members
	of
	the 	executive
	committee
	reacted 	strongly 	against
the
	presence
	of
	such
	a
	large
	group
	of 	full-time
	instructors.
It
	appears
	that
	the
	full-time 	instructors,
	most
	or
	all
	of
	whom
had been
	active
	on
	the
	ad
	hoc 	committee
	of 	the 	Faculty 	Senate
looking
	into
	the
	problems
	of 	part-time 	faculty,
	reasonably
believed
	that 	this
	was
	an 	open
	meeting
	and were 	unaware
	that
invitations
	had 	been 	extended 	only
	to 	three 	individuals.
	When
the
	part-time 	instructors
	objected
	to 	the 	presence
	of 	eight	
full-
time	
instructors,
	the
	full-time 	instructors
	reacted
	by
	getting
	up
to 	leave
	en
	masse.
	Finally 	the matter
	was
	resolved
	by
	allowing
all
	the
	full-time 	instructors
	to
	stay but with 	only
	three
	of
them
	having 	the
	right
	to
	speak.
	After
	such
	an
	auspicious
beginning, 	the
	meeting 	quickly
	deteriorated
	to
	total
disagreement 	over 	the 	substance 	of
	a 	common
	approach
	to
negotiations.
	At
	the
	end
	of 	this
	discussion, 	the
	full-time
instructors
	left
	and
	the 	executive
	committee
	continued with
its
	own
	meeting.
Two
	of 	the
	full-time 	faculty
	members
	who
	attended
this
	meeting were 	James 	D'Angelo 	and 	Frank
	Little.
	Neither
one had been
	specifically 	invited
	by 	Rose
	Drummond.
	D'Angelo
was
	at
	the 	time
	president 	of 	the 	Faculty Association/Senate.
He
	had 	previously been 	present
	by
	invitation 	at 	least 	twice
at 	organizational 	meetings 	of 	the 	United 	Faculty Association.
-17-

D'Angelo 	asked 	Little 	to 	come 	to 	the meeting 	also, 	since
Little 	had been very 	active 	as 	a 	member 	of 	the 	Senate 	ad hoc
committee 	on 	part-time 	faculty. 	Little was 	a 	full-time
instructor 	in 	the 	business 	department. 	He 	has 	not 	been
designated 	as 	management 	or 	supervisory, 	and 	his 	duties 	are
simply 	those 	of 	a 	full-time 	instructor. 	However, 	since 	Little
spends 	one 	evening 	a 	week 	at 	the 	college 	and has 	his 	office
next 	to 	that 	of 	part-time 	instructors, 	he 	has 	tended 	to 	act
as 	a 	conduit between 	part-timers 	and 	the 	administration. 	At
one 	time, 	Little 	attended 	a 	meeting 	of 	the 	United 	Faculty
Association 	and, 	in 	order 	to 	be 	able 	to 	speak, 	he 	paid 	one
dollar 	yearly 	dues 	to 	the 	organization. 	He 	is 	the 	only 	full-
time 	faculty member 	to 	have 	joined 	the 	United 	Faculty Associa-
tion.
James 	Shaw was 	one 	of 	the members 	of 	the 	United
Faculty Association 	executive 	committee 	present 	at 	the May 	14
meeting. 	Approximately 	fifteen 	minutes 	after 	the 	full-time
instructors 	left 	the 	meeting, 	Shaw 	left 	the meeting 	briefly
to 	go 	to 	the 	Instructional 	Materials 	Center. 	As 	he was 	turning
a 	corner 	on 	his 	way 	to 	the 	Center, 	he 	saw Little 	and 	D'Angelo
in 	conversation with 	James 	Fugle, 	Assistant 	Superintendent 	of
Instruction 	for 	the 	District. 	Shaw 	testified 	that 	Little
was 	speaking 	and 	that 	as 	Shaw 	first 	saw 	the 	group 	Little 	was
saying, 	"Well, 	Shaw 	is 	articulate 	and 	. 	" 	At 	that 	point
the 	group 	noticed 	Shaw 	and 	the 	conversation 	stopped. 	Fugle
and 	Little 	both 	said 	"Hi" 	to 	Shaw, 	and 	Shaw 	returned 	the
greeting 	and 	continued 	on 	his 	way 	down 	a 	staircase.
All 	three 	of 	the 	participants 	in 	the 	conversation
testified 	at 	the 	hearing 	and none 	of 	them had 	any 	specific
recollection 	of 	it. 	Little 	in 	particular 	testified 	that 	he
was 	so 	"agitated" 	by 	the 	meeting with 	the 	part-time 	faculty
members, 	he 	would 	have 	told nearly 	anybody he 	might 	have 	seen
after 	the meeting what 	had 	taken 	place. 	He 	testified 	that
if he 	had 	run 	across 	Fugle, 	he would have 	told him. 	Both 	Fugle
-18-

and
	Little 	testified
	that
	Little
	had
	never
	been 	asked
	to
attend
	the
	meeting
	and
	report
	to
	management
	about
	it,
	and
there
	is
	no
	reason
	to 	disbelieve
	this
	testimony.
	Although,
Shaw's
	testimony
	may
	well
	be
	accurate,
	the
	fact 	that
	the
other 	individuals
	involved
	in
	the 	incident
	do
	not
	recall
	it
taking 	place
	may
	be
	attributed
	to 	the
	fact 	that
	the
	incident
was
	insignificant,
	and 	does
	not 	suggest
	a
	basis
	for
	discrediting
the 	testimony.
3.
	Conclusions
	of
	law.
It
	is
	concluded
	that
	Frank
	Little
	attended 	the
meeting
	of
May
	14
	as
	a
	representative
	of 	the 	Faculty Association/
Senate
	and
	as
	a
	member
	of 	the
	ad 	hoc 	committee
	on
	problems
	of
the
	part-time 	faculty.
	He
	did 	not 	attend
	the 	meeting
	on
	behalf
of
	management, 	and
	therefore 	the
	District
	cannot 	be
	held
responsible 	in
	any
	way
	for 	his 	attendance. 	Therefore,
	it
	is
unnecessary 	to 	discuss
	whether
	his 	actions
	might
	otherwise
have
	amounted
	to
	improper
	surveillance.
The
	charge
	of 	surveillance 	in
	paragraph
	2
	of
	case
number
	LA-CE-41
	should
	be
	dismissed.
F. 	The
	charges
	of 	interference
	with
	the 	administration
	of
and
	discouraging
	membership
	in
	the
	United
	Faculty Association.
1.
	Findings
	of 	fact.
On May
	20, 	1976,
	a
	letter
	signed
	by
	James
	D'Angelo 	as
president 	of 	the 	Santa
	Monica
	College 	Faculty Association
	was
mailed 	to 	Stephen
	H.
	Edwards,
	Jr.,
	President 	of 	the 	California
Teachers 	Association.
	The
	letter
	stated
	as 	follows:
This
	is
	to 	notify
	you
	of
	our 	request 	that
the 	California
	Teachers 	Association 	revoke
the 	charter 	recently 	is
	to 	Chapter 	1037,
Santa
	Monica
	College 	Part-Time 	Facul
sociat
	The
	CTA
	action 	of 	recogn
another
	CTA
	chapter
	on
	this
	campus
	is
	a
clear, 	substantive
	and 	unacceptable 	viola-
tion 	of major Association 	policies.
	This
action has, 	moreover, 	created 	confusion,
-19-

bitterness,
	and
	factionalism
	among
	and
between
	contract
	and
	hourly
	faculty
members
	of
	Santa
	Monica
	College.
	The
net
	result
	of
	this
	is
	to
	impede
	seriously
and,
	perhaps,
	destroy
	any-chance
	of
	a
CTA
	chapter
	becoming
	the
	exclusive
bargaining
	agent
	of 	the
	certificated
staff
	of
	Santa
	Monica
	College.
Mr.
	D'Angelo
	is
	co-ordinator
	of
	evening
	services
at
	the
	college.
	He
	is 	in
	charge
	of
	counseling
	and
	related
matters 	for
	the
	evening
	program.	
On	
May
	10, 	1976,
	the
	Board
of
	Trustees 	acted 	to 	designate
	all
	co-ordinators
	(with
	two
exceptions)
	management,
	effective
	July
	1.
	D'Angelo
testified
	that
	for
	some
	time
	prior
	to 	the
	Board
	action
	he
and
	other 	co-ordinators
	had
	assumed
	that
	they
would be
named
management,
	although
	he
	was
	not
	specifically
	aware
that
	the
	Board had
	acted
	at
	the
	time 	he
	signed 	the
	May
	20
letter.
	During
	a
	c8:sual,
	joking 	conversation with
	several
part-time 	instructors 	in 	the 	college
	mail
.room
	in
	April,.
	he
declined
when
	asked
	if
	he·wanted
	to 	sign
	an
	authorization
	card
for 	the 	United
	Faculty Association,
	and he
	told
	them
	that
	he
was
	probably 	going 	to
	be
	designated
management 	anyway.
Until
	June 	18, 	1976, 	D'Angelo
	was
	president 	of both
the 	Faculty Association
	and
	the 	Faculty 	Senate.
	It
	will
	be
recalled 	that
	during
	this
	period 	the
	two
	entities
	operated
under
	a
	single 	constitution
with
	a
	single 	set 	of
	officers.
In 	addition, 	there
	was 	no
	clear 	delineation 	of 	functions
between 	the 	Faculty 	sociation
	and
	the 	Senate,
	and
with 	the
f
passage 	of 	the
	EERA
	there
was 	no
	clear
	unders
	that
	the
Senate 	could 	continue 	to 	operate but 	that 	the 	right
	to meet
and
	negotiate with 	the
	employer would be
	reserved 	to 	an	
exclu-
s	
representative. 	Gradually,
	full-time 	facul
	members
perceived 	the necessity
	r
	separating 	the
	t
	of
14See 	Section 	3540.
-20-

Faculty
	and
	entities
	Association 	the
	Senate, 	although
	the
	two
continued 	to
	be
	closely 	associated 	in
	their
	minds.
Associa-
tion
During
	the 	spring
	a
	committee
	of
	the 	Faculty
the
was
	formed
	in
	response
	to 	the
	implementation
	of 	EE~
and
	the 	organization 	of
	the
	United
	Faculty Association. 	In
D'Angelo
	in
his 	role
	as
	president 	of 	the Faculty
early
	May
	Mr.
Association 	chaired
	a
	meeting
	to 	consider
	a
	strategy 	for
responding
	to
	the
	organizing
	campaign
	of 	the
	United
	Faculty
Association.
	D'Angelo
	testified
	that
	he
	merely
	chaired 	the
advocate
	for
meeting
	and
	that
	Nancy
	Cattell
was
	the
	chief
the 	committee's
	point 	of
	view
	that
	the
	full-time 	faculty
would 	have
	to
	actively
	seek
	support
	for 	the 	Faculty Association
position 	of
	simply
if
	they
wanted
	to 	avoid being 	placed
	in
	the
the
	United
	Faculty
having
	to
	join
	the
	part-time 	instructors 	in
D'Angelo
	was
	supportive 	of
	this 	position.
	Association.
There-
after,	
wrote 	to
	was
the
	committee
	the
	May
	20
	letter
	CTA
which
signed
by 	D!Angelo
	as
	president 	of
	the
	Fatulty Association.
15
The
	committee
	also
	began
	an
	organizing
	campaign 	on
	behalf 	of
the 	Faculty Association
	which
	culminated
	in 	that 	organization's·
intervention 	in 	the 	contest 	to 	represent 	the
	District's 	certifi-
cated
	employees. 
was
	specific
	D'Angelo
	credibly
	testified
	that
	he
	not
	ally
aware
	that
	the
	Board had
	already 	taken
	action 	to 	designate
co-ordinators
	management when
	he 	signed 	the
	May 	20
	letter.
of 	that 	action
	on
He was 	aware, 	however,
	of 	the 	likelihood
May
	20, 	and
	in
	the
	t 	week
	of
	June he 	informed 	the 	Senate
action,
	which
	resulted 	in
	a
	Senate 	vote 	to 	exclude
of 	the
	Board
co-ordinators
	from membership 	due
	to
	a
	perceived
	conflict 	with
sentation 	of 	faculty
	under 	the
	EERA.
15	
of
	The
	dispute 	with
	CTA
	over 	the 	validity 	the 	charter 	issued
to 	the United 	Faculty Association which was
	the 	subject 	of
the
	May 	20
	letter
	remained unresolved 	at 	the 	time 	of hearing.
-21-

D'Angelo's
	term 	as
	president 	of
	the 	Faculty
Association/Senate
	ended
	June
	18, 	1976.
	On
	that
	day,
	he
presided
	at
	a
	retirement 	breakfast,
	at
	the
	end
	of
which
	he
turned
	over
	the
	gavel
	to
	the
	incoming
	president 	of
	the
	Senate,
Norma
	Nyquist.
	D'Angelo
	left
	at
	that
	point,
	but 	the
	meeting
continued.
	Th~
	faculty
	members
	present
	then 	adopted
	the
separate
	constitution
	for 	the 	Faculty Association
	and
	elected
a
	separate
	set
	of
	officers,
	headed
	by
	Nancy
	Cattell
	as
	president.
2.
	Conclusions
	of
	law.
The
	United
	Faculty Association
	contends
	that
Mr.
	D'Angelo's
	signature
	on
	the
	May 	20
	letter
	to
	CTA
	and
	his
participation
	in
	beginning
	stages 	of
	the 	Faculty
	Association's
organizing
	effort
	are
	attributable
	to
	management
	and
	constitute
violations
	of
	Section 	3543.S(d).
16
Thus,
	it
	is
	contended
	that
the
	District 	interfered
with 	the
	formation
	and
	administration
of
	the
	United
	Faculty 	Association
	by
	demanding
	that
	~TA
	revoke
its
	charter'
	and
	that
.the
	District'
	through
	DI
Angelo' 	encouraged
employees
	to
	join
	the 	Faculty
	As-sociation
	in
	preference 	to 	the
United
	Faculty Association.
The
	charging
	party
	takes
	a
	rather
mechanical 	view
	of
Mr.
	D'Angelo's
	obligations
	upon
	being 	designated
management.
It
	is
	contended
	that
	upon
	learning
	that
	he would be
	designated
management,
	he
	was
	immediately
	obligated
	to
	resign
	as
	president
of
	the 	Faculty Association
	and
	take
	no
	part 	in 	the 	representa-
tion	
campaign.
	This
	contention,
	however,
	ignores 	the 	context
which
	the 	events 	took
	place.
	Mr. 	D'Angelo was
	nearing 	the
end
	of his
	term as
	president 	of 	the 	Faculty Association/Senate.
In
	this 	role
	he 	had
	acted 	as
	a
	leader 	of
	the
	full-time 	faculty
in 	discussing 	issues 	of
	importance 	to 	the 	faculty
	and
	in
	making
recommendations
	to 	the 	administration,
	and he
	clearly
was
per 	by
	faculty
	members
	in 	at 	role 	than 	as
	a
member
	of 	the 	administration.
	The 	May 	20
	letter
was
	tten
by
a 	committee 	of 	the 	Faculty Association 	and not 	solely by
	D'Ange
16
see 	n. 	3, 	supra.
-22-

He
	signed
	the
	letter
	in 	his
	capacity
	as
	president 	of
	the
Faculty Association
	and
	not
	as
	a
	member
	of
	management.
It
	is
	not 	reasonable 	to
	conclude
	that
	D'Angelo
should
	have 	immediately
	resigned
	his 	position
	as
	president
and
	ceased
	to
	participate
	in
	the
	activities
	of
	the 	Faculty
Association
	simply because
	he
	was
	designated
	management
by
	the
	Board
	of
	Trustees,
	an
	action
	which
was
	totally
outside 	of 	his 	control.
	His
	actions
	upon
	learning 	of
	the
Board
	action
	were
	in 	fact
	reasonable:
	he 	informed
	the
Senate
	of
	the 	designation,
	and
	shortly 	thereafter
	completed
his
	term as
	president
	and
	withdrew
	from 	any
	further	
partici-
pation	
in
	the 	Faculty Association 	or
	the 	Senate.
Paragraphs
	3
	and
	4
	of
	case
	number 	LA-CE-41,
	which
are
	based
	on
	the
	activities
	of
Mr.
	D'Angelo,
	should
	be	
dis-
missed because
	D'Angelo
	was
	at
	all
	relevant
	times
	acting
solely 	in his 	established 	role
	as
	president 	of 	the 	Faculty
Association
	and
	his 	actions
	cannot 	be 	imputed
	to 	the
	District.
G.
	The
	charges
	relating
	to
	salary 	discussions 	of
	June 	and
July,
	1976.
1. 	Findings
	of
	fact.
In 	the 	spring 	of
	1976,
	Dr. 	Moore was
	authorized
	by
the
	Board
	of
	Trustees 	to 	enter 	into 	salary 	discussions 	with
employee
	organizations.
	Pursuant
	to
	this 	authority,
	he
requested 	the
	United 	Faculty Association
	and
	the 	Faculty
Association/Senate 	to
	make
	salary
	proposals 	for 	the
	upcoming
school 	year.
	Dr. 	Moore
	had 	only
	a
	vague
	recollection 	of
	how
or
	when
	these 	requests
	were 	communicated
	to 	the 	organizations,
but
	he 	estimated 	the 	time
	to
	have 	been
	in
	May
	or 	early
	June.
Rose
	Drummond,
	however,
	testified 	specifically 	that 	the 	request
was
	first
	communicated
	to 	the 	United 	Faculty Association
	when
James 	Fugle 	telephoned her 	at
	home
	on 	June 	17, 	the
	last
	day
of 	school. 	Because
	of 	her 	specific
	memory
	on
	this 	subject,
the 	testimony 	of
Ms. 	Drummond
	as 	to 	the 	date 	of 	the 	request
is 	credited.
-23-

Mr.
	Fugle
	requested
	that
	the
	United
	Faculty	
Associa-
tion	
prepare
	salary
	proposals
	for
	both
	full
	and
	part-time
instructors.
	He
	stated 	that
	the
	proposals
	would be
	presented
to
	the
	Board
	of
	Trustees,
	and
	that
	since 	there
	were
	two
organizations
	competing
	to
	represent
	the
	faculty,
	to 	avoid
unfair 	practices
	both
	organizations
	were
	being
	asked
	to
present 	proposals.
	A
special
	meeting
	of
	the
	Board
	for
	the
presentation 	of 	the
	salary
	proposals
	was
	scheduled
	for
	June
	21.
Both
	the
	United
	Faculty Association
	and
	the 	Faculty
Association
	made
	salary
	proposals
	at
	a
	meeting
	of
	the
	Board
	of
Trustees
	on
	June
	21.
	Then
	the
	Board
	in
	executive
	session 	author-
ized	
Dr.
	Moore
	to
	make
	an
	offer
	to
	the
	organizations 	of
	an
	eight
percent
	salary
	increase
	on
	condition
that
	the 	organizations
	waive
collective
	bargaining
	on
matters 	of
	compensation
	for
	the 	next 	year.
On
	June
	23 Moore
	called
	Drummond
	into 	his 	office
	and
presented her with 	the
	offer
	authorized
	by
	the
	Board.
	Drummond
told
Moore
	that
	she
	would
	discuss 	the
	offer
	with 	the 	executive
committee 	and
	get
	back
	to
	him
as
	soon
	as
	possible.
	Moore
indicated 	that
	Drummond
	should 	respond 	as
	soon
	as
	possible
and
	told
	her
	that
	she
	could
	call
	him
	at
	home
	if
	necessary.
It
	was
	Moore's
	position 	that
	agreement
	should be 	reached
	prior
to
	June
	30
	"since 	the
	new
	collective
	bargaining
bill
	had been
passed, 	but
	had
	not
	come
	into 	force
	yet."
Two
	days
	later,
	on
	June 	25,
	Ms. 	Drummond was 	on
campus
	to
	do 	some
	errands,
	and 	Dr. 	Moore
	asked 	to 	see
	her.
Drummond was
	in
	a
	hurry because
	of
	a
	doctor's
	appointment
	and
had
not 	planned 	to
	talk with
Moore
	that
	day,
	but 	agreed 	to
talk
	with
	him
briefly.
	He
	asked
	if
	the 	executive
	committee
had met
	yet
	and was
	told 	that
	they 	had
	not 	but 	that
	they
planned 	to
	meet
	next
	day, 	which was 	a
	Saturday.
	Moore
emphasized
	that 	the 	organization
	d
	respond
b
Board meeting 	scheduled 	for 	the 	following
	Monday, 	June 	28,
and he 	strongly urged 	that 	the 	organization 	accept 	the 	eight
percent 	proposal 	and waive 	"compensation 	collective bargaining."
r, I	
-,::.4-

Drummond 	responded 	that 	the 	proposal 	sounded 	like 	an 	ultimatum.
The 	executive 	committee met 	the 	following 	day 	and
developed 	a 	position 	in 	a 	letter which was 	presented 	to 	Dr. 	Moore
on 	June 	28. 	The 	letter 	questioned whether 	the Board's 	offer
met 	the 	public 	notice 	requirements 	of 	the 	then-effective
Winton 	Act, 	and 	indicated 	that 	the 	executive 	committee was
prepared 	to 	continue 	negotiating 	on 	salaries 	and working
conditions 	throughout 	the 	summer. 	The 	letter 	concluded:
We 	were 	available 	throughout 	the 	spring
to 	meet 	and 	confer 	in 	good 	faith with
representatives 	selected by 	the 	Board
of 	Trustees 	on 	salaries 	and working
conditions; 	regrettably, 	you have 	chosen
to 	raise 	these matters 	during 	summer
recess 	rendering 	consultation with 	faculty
regarding 	your 	proposals 	virtually 	impos-
sible. 	Again, 	may we 	reiterate 	our will-
ingness 	to 	meet 	and 	confer 	throughout 	the
summer with 	ratification 	of 	any 	agreements
to 	occur 	at 	the beginning 	of 	the 	fall 	term.
To 	ensure 	fairness, 	we 	suggest 	that 	such
meeting 	and 	conferring 	involve 	represent-·
atives 	of 	all 	other 	employee 	organizations
representing 	the 	faculty.
The 	Board 	of 	Trustees 	met 	on 	the 	evening 	of 	June 	28
and 	considered 	the 	question 	of 	salaries 	for 	the next 	budget 	year.
By 	that 	time, 	the 	leadership 	of 	the 	Faculty 	Senate had 	agreed
to 	the 	Board's 	offer 	of 	an 	eight 	percent 	increase 	and 	had
signed 	a 	waiver 	of 	their 	right 	to 	"compensation 	collective
bargaining" 	for 	the 	year. 	Because 	of 	confusion 	over 	the
separate 	status 	of 	the 	Faculty Association, 	a 	formal 	waiver
from 	that 	organization was 	not 	obtained 	until 	June 	30.
However, 	with 	the 	effective 	consent 	of 	the 	Faculty Association
to 	all 	terms 	of 	Board's 	o 	approved 	an
eight 	percent 	salary 	increase 	full-t 	culty members.
-25-

Because
	the
	United
	Faculty Association
	had
	not
	agreed
to 	the
	eight
	percent
	offer
with
	a
	waiver
	of
	compensation
collective
	bargaining,
	Dr.
	Moore 	recommended
	that
	the
	Board
take
	no
	action
	with
	respect
	to
	a
	salary
	increase 	for 	part-time
faculty.
	The
	Boarci_accepted
	this
	recommendation
	but 	also
	directed
that
	the
	offer
	should
	remain
	open
	until
	midnight
	of
	June.
	30.
Moore was
	instructed
	to
	meet
	with 	the
	United
	Faculty
	Associa-
tion
	to
	try
	to 	obtain
	their
	agreement
	to
	the
	Board's
	offer.
On
	the
	two
	days
	following
	the
	Board
meeting, 	June
	29
and 	30,
	the 	executive
	committee
	of
	the
	United
	Faculty Association
met
	with
Moore
	and
	two
	other
	members
	of
	the
	administration
	to
discuss 	the 	Board's
	salary
	proposal.
	The
	meetings
	lasted
	one
·
and one
	half
-·hours
	each 	day.
	The
	meetings
	were
	not
	negotiations,
since,
	as
	Dr.
	Moore
	testified:
We
	went
	through
	several 	sessions
	over
several
	days 	and
	part 	of
	the 	dialoguing
w~s
	over
	the 	question
	whether
	or not
	I 	.
was 	empowered
	to
	change
	the
	Boarq's
	offer
to.in
	fact 	negotiate,
	and
	I
	explained
that
	I 	was
	not
	empowered
	to
	do
	that.
I 	was 	empowered
	to
	exp
lain, the
	Board'
s
offer
	and
	I 	was
	present 	to
	do
	that.
The
	position 	of
	the 	executive
	committee
with 	respect 	to
the 	Board's 	proposal
was
	that
	an
	eight 	percent 	increase 	to 	hourly
instructors
	was
	not 	equivalent 	to 	eight 	percent 	for 	full-time
contract 	instructors
	when
	actual 	teaching
	responsibilities
	were
compared, 	and
	that
	if
	parity
were
	to 	be maintained
	part-time
instructors
	should 	get
	a
	twenty-six 	percent 	increase
	to
	match
	the
eight 	percent 	increase 	given 	to 	full-time 	faculty
	members.
Ms. 	Drummond
	testified 	that
	she
	called 	the 	eight 	percent
	offer
"ludicrous."
In 	addition, 	the 	executive
	committee
	consistently
maintained 	that
	it
	did not 	have
	the 	authority 	to 	enter 	into
any 	agreement 	with 	the 	District without 	obtaining 	the
	ratification
of 	the membership. 	At
	the 	meeting 	on 	June 	30, 	the 	executive
committee 	presented Dr. 	Moore
with
	a
	"Policy Statement" which
explained:
-26-

Under
	our
	constitution,
	the 	Bargaining
Team
	is
	responsible
	to 	the 	Executive
Committee, 	which
	in 	turn
	can
	only
recommend,
	not
	ratify,
	policy;	
ratifi-
cation 	properly
	rests
	with
	the	
member-
ship.	
Therefore,
	we
	currently
	have
	no
authority
	to 	sign
	any
	agreement 	which
is
	binding
	on
	our
	membership,
	certainly
not
	on
	the
	entire
	Part
	Time
	Faculty.
(Emphasis
	added.)
Dr
. 	.Moore
	urged
	that
	the 	executive
	committee
	obtain
the 	aubhority 	to
	agree
	to 	the
	District's
	proposal.
	He
	was
informed
	that
	under
	the
	United
	Faculty 	Association
	by-laws
it
	would
	take
	about
	two
	weeks
	to
	call
	a
	membership
	meeting,
and
	that 	this
	was
	impossible
	anyway
	because
	this
	was
	summer
vacation
	and
many
	of
	the
	members
	were
	not
	available
. 	.Moore
urged
	that
	the 	executive
	committee
	poll
	the
	membership
	by
telephone
. 	.Moore
	testified
	that
	he
	offered
	the 	use
	of
District
	telephones 	for
	this
	purpose,
	but
	Drummond
	testified
that
	no
	such
	offer
	was 	made.
	The
	executive
	committee
	refused
to
	poll
its
	membership, 	and
	the
	meeting
	ended
	with
	no
agreement
. 	.Moore
	offered 	to 	leave
	a
	phone 	number
	where
	he
could
	be
	reached
	by
	midnight
	if
	the
	committee
	reconsidered
its
	rejection
	of 	the 	Board's
	offer,
	but 	the
	committee
	did 	not
reconsider
	its
	action.
	The
	Board's
	offer
	lapsed
	after
June
	30, 	and
	the 	part-time 	faculty 	received
	no
	salary 	increase
for 	the
	1976-77
	school 	year.
On
	July
	2,
	Dr . 	.Moore
	wrote
	a 	memorandum
	to 	the 	Santa
.Monica
	College
	"community"
	in
	which 	he 	summarized
	the 	Board's
actions 	with 	respect 	to
	salaries.
	The memorandum was	
distrib-
uted 	to
	full
	and
	part-time 	faculty
	and
	to 	the 	ess.
	The
memorandum
	states 	that 	the
	Board 	reached 	agreement 	with 	the
leadership 	of 	the 	Faculty 	Senate 	for
	an
	eight 	percent 	salary
increase 	subject 	to
	a
	written 	understanding 	that 	the 	subject
of 	compensation 	for 	1976-77 	would not 	be 	reopened 	"under
-27-

collective
	bargaining."
	The
	memorandum
	stated 	that
	the
	same
offer
	had 	been
	made
	to
	the
	Part-Time 	(United)
	Faculty	
Associa-
tion	
and 	had 	remained
	open
	until
	midnight
	June
	30. 	The
memorandum
	concluded:
At
	2:10
	p.m.,
	June 	30,
	1976
	the	
Part-
Time	
Faculty
	Association's
	Executive
Committee
	ended
	two
	days
	of 	discussions
by
	stating 	that
	the
	offer
	£rom
	the
	Board
was
	not
	worth
	the
	effort
	to 	take 	to
	their
members.
	The
	Boards 	representativeindicated
	that
	the
	offer
was
	open,
	per
instructions,
	until
	midnight,
	but 	the
executive
	committee
	of
	the
	Part-Time
Faculty Association 	refused
	the 	Board's
offer
	to
	all
	600
	part-time
	employees
	ofthe 	college
	district.
	The
	significance
of
	this
	decision
	is
	that
	the
	pay
	rate
for 	part-time
	employees
	will
	continue
at
	$14.75
	per
	hour
	rather
	than
	change
	to
$16.00
	per
	hour
	effective
	September
	1,
	1976.
Because
	both 	the 	Faculty Association
	and
the
	Part-Time
	Faculty 	Association
	have
requested 	exclusive
	representation 	for
collective
	bargaining 	there 	are 	legalquestions
	as
	to
	what
	will
	be 	thecomposition
	of 	the bargaining
	unit
	and
what
	organization
	if
	any
will
	representthose
	employees
	in 	collective
	bargaining.
The
	college
	district
	has
	requested
	that
the
	newly 	formed
	Educational
	Employment
Relations
	Board
	(EERB)
	resolve 	these
questions.
	Legal 	counsel 	has 	advised 	the
district
	that
	the
	Board
	should 	await 	the
	·EERB
	ruling.
	The
	Board
wishing
	in
	good
faith
	to
	improve working
	conditions
	prior
to 	the 	July
	1
	collective bargaining 	date,
made
	its
	settlement 	with 	the 	full-time
faculty
	and
	tendered
	its
	offer
	to 	thePart-Time 	Faculty Association
	which was
not 	accepted.
	(Emphasis
	.)
Whether members
	of 	the 	executive 	committee
	in 	fact
stated 	that 	the 	Board's 	offer
	"was
	not 	worth 	the
	effort 	to
take 	to 	their
	members" was
	disputed 	at 	the hearing. 	Neither
Dr. 	Moore
	nor 	Benita Haley,
	who
	also 	represented 	the 	adminis-
tration 	at 	the 	June 	29 	and 	30 meetings 	specifically 	recalled
-28-

which
	member
	of
	the 	executive
	committee
	stated 	that
	the
	offer
was
	not
	worth
	taking 	to
	the
	membership,
	but 	both
were
	firm
that
	such
	statements
	had 	been
	made.
	Ms. 	Drummond
	testified
that
	she
	did 	not
	recall
	anyone 	on
	the
	executive
	committee
using 	those 	exact
	words,
	but
	that,
I
	remember
	words
	to
	the
	effect 	that
	it
was
	impossible
	for
	us
	to
	call
	our
	members.
Dr.
	Moore
	suggested
	that
	each
	of
	us
	poll
about
	15
	or
	20
	of
	our
	members
	on
	the
	phone
and
	get
	back
	to
	him
	by
	midnight
	and
we
told
	him
	it
	would
	be 	an
	impossible
	task 	to
do.
The
	reason 	the 	executive
	committee
	regarded 	the
	task
as 	impossible
was
	that
	their
	members
	were
	dispersed
	during 	the
summer
	months.
	As
	noted
	above,
	the 	executive
	committee
	did
regard 	the
	Board
I s
	offer
	as
	"ludicrous"
	and
	inequitable.
The
	evidence
	is
	clear 	that
	the
	executive
	committee
informed
	Dr. 	Moore,
	both
	orally
	and
	in 	the
	June
	30
	"Policy
Statement,"
	that
	they 	only
	represented 	the
members
	of 	the
United
	Faculty 	Association 	during 	the
	salary 	discussions,
	and
that
	even
	this
	representation
was
	subject
	to
	ratification.
The
	request 	for 	recognition
	submitted
	by
	the
	United
	Faculty
Association
	listed
	196 	members
	and,
	in 	addition,
	listed
	450
"non-members"
	who
	had
	signed
	authorization 	cards.
	The
	request
for 	recognition,
	it
	will
	be
	remembered,
	identified
	a
	unit 	of
all
	faculty
	members,
	both
	full
	and
	part-time,
	and
	was
	estimated
to
	total
	790
	employees.
Representatives 	of
	the 	United
	Fa
	ty Association
appeared before 	the
	Board
	of 	Trustees
	at
	meetings
	on
	July
	12
and 	19.
	On
	July
	12 	James
	Shaw
	appeared 	to 	explain 	the
executive 	committee's 	analysis 	of 	the 	inequit 	present 	in
the 	Board's 	now-expired
	offer 	of
	an
	eight 	percent 	across-the-
board 	increase.
	Shaw
	specifically 	stated 	that
	he
	was
	not
demanding
	at 	this 	point 	that 	the 	Board meet 	and
	negotiate 	with
the 	United 	Faculty Association, 	because 	no
	exclusive 	representative
-29-

had been
	certified
	and
	therefore
	the
	District
	could
	not
	meet
and
	negotiate
	with
	his
	organization
	under
	the
	EERA.
	After
Shaw's
	presentation,
	Dr.
	Moore
	told
	the
	Board
	that
	the
	District
was
	advised
	by
	counsel
	that
	while 	the
	Board
	could
	act	
unilat-
erally 	prior
	to
	July
	1,
	after
	that
	date
	any
	salary
	"conversa-
tions"
	might 	be
	unfair 	practices 	in
	terms
	of
	an
	attempt 	to
influence
	an
	election.
On
	July
	19
	Rose
	Drummond
	addressed 	the
	Board
	with
respect
	to 	the
	availabiljty
	of 	faculty
	handbooks
	to
	part-time
faculty
	and
	the
	disbursement
	of 	salary
warrants.
	The
	Board's
response 	again
	was
	that
	it
	could not 	discuss
	the
	matters 	with
the
	United
	Faculty Association without 	running
	the
	risk
	of
committing
	an
	unfair 	practice.
2.
	Conclusions
	of
	law.
The
	facts 	outlined
	above
	relate
	to 	the
	allegations
contained
	in
	paragraphs
	5
	and
	6
	of
	the
	unfair 	practice
	charge
in
	case
	number
	LA-CE-41.
	As
	amended,
	paragraph
	5
	alleges 	that
the
	employer 	"engaged
	in multiple
	and
	pervasive
	unfair 	practices
with 	the
	intent
	of
	undermining
	the 	majority 	support" 	possessed
by
	the
	charging
	party.
	Subparagraph 	(a)
	alleges 	that
	the
District
	on
	June
	23
	and
	thereafter
	"conditioned
	its
	salary
negotiations 	and/or
	offers
	upon
	a
	mandatory
waiver
	of 	rights
to
	collective
	bargaining
	on
	and
	after
	July
	1.
	"	
Subpara-
graph	
(b)
	alleges 	that
	on
	July
	12
	and
	19
	the
	District
	"refused
to
	meet 	and
	negotiate 	in
	good
	faith.
	. 	. 	"
	Subparagraph
	(
c)
alleges 	that
	on
	or 	about 	June
	30
	the
	District 	"interfered
	with
the 	administration 	of 	the
	Charging
	Party
	and 	encouraged
employees
	to
	join
	another 	organization 	in 	preference 	to
	it
and
	discriminatorily 	granting 	(sic) 	to
	employees
	represented
by
	the 	other 	organization
	a
	larger
	pay
	increase 	than 	that
offered 	to
	certificated
	employees
	represented
	by
	the 	Charging
Party." 	Paragraph
	6
	of 	the 	charge 	alleges 	that
	on
	July
	2
Dr. 	Moore
	"interfered with 	the 	administration 	of 	the 	Charging
Party 	and 	encouraged 	employees 	to 	join 	other 	organization(s)
-30-

in 	preference 	to 	it 	by 	untruthfully 	reporting 	the 	status 	of
Respondent's 	negotiations 	with 	Charging 	Party."
At 	the 	hearing 	the 	District moved 	to 	dismiss 	para-
graph 	5(b) 	on 	the 	grounds 	that 	the 	United 	Faculty Association
was 	not 	an 	exclusive 	representative 	on 	the 	dates 	alleged 	and
that 	the 	District 	therefore was 	under 	no 	obligation 	to 	meet
and negotiate 	with 	it. 	A ruling 	on 	the motion was 	reserved
to 	consider 	the 	argument 	that 	the 	United 	Faculty Association
was 	entitled 	to 	be 	treated 	as 	an 	exclusive 	representative
under 	the 	rule 	of NLRB 	v. 	Gissel 	Packing 	Co., 	supra. 	As
previously 	determined 	(see 	part 	B, 	supra), 	the 	District 	was
precluded 	as 	a 	matter 	of 	law 	from 	ne~otiating with 	the 	United
Faculty 	Association 	as 	an 	exclusive 	representative, 	and 	it
17
therefore 	follo~s 	that 	paragraph 	5(b) 	must 	be 	dismissed.
It 	remains 	to 	consider 	paragraphs 	5(a) 	and 	5(c) 	which
focus 	on 	the 	salary 	discussions 	culminating 	in 	the 	action 	of
the 	Board 	of 	Trustees 	granting 	an 	eight 	percent 	increase 	to
the 	full-time 	faculty 	and 	denying 	any 	increase 	to 	the 	part-
time 	faculty, 	and 	paragraph 	6 which 	deals 	with 	Dr. 	Moore's
memorandum of 	July 	2 	publicizing 	the 	Board's 	action.
The 	events 	leading 	up 	to 	the 	Board 	of 	Trustees'
action 	on 	salaries 	indicate 	that 	the 	District 	initiated a
series 	of 	consultations 	with 	the 	two 	employee 	organizations
competing 	to 	represent 	the 	District's 	certificated 	employees,
but 	that, 	in 	fact, 	the 	consultations 	were 	no more 	than 	efforts
to 	convince 	the 	organizations 	to 	acquiesce 	to 	the 	District's
determination 	of a 	proper 	salary 	increase. 	The 	executive
committee 	of 	the 	United 	Faculty Association 	placed 	the
District's 	representatives 	on 	notice 	from 	the 	early 	stages
of 	these 	consultations 	that 	it 	could not 	agree 	to 	the 	terms
of 	the 	District's 	offer '<Hithout 	ratification 	of 	its 	membership,
17 Moreover, 	the 	facts 	raise 	serious 	questions 	as 	to whether
the 	United 	Faculty 	Association made 	a 	proper 	demand 	to 	meet
and 	negotiate 	even 	assuming 	that 	the 	District was 	not 	pre-
cluded 	from 	granting 	such a 	demand.
-31-

and
	that
	ratification
was
	impossible
	under
	the 	unreasonably
shOrt 	time
	limit
	placed
	on
	the
	offer.
	The
	United
	Faculty
Association
	indicated
	its
	willingness
	to
	continue
	the	
consul-
tations	
throughout
	the
	summer
	under
	a
	procedure
	which would
allow both
	organizations
	full
	participation.
	The
	District,
in
	its
	rush 	to 	take
	action
	on
	salaries
	before 	the
	unfair
practice
	provisions 	of 	the
	EERA
	were
	to 	take
	effect
	on
	July
	1,
refused 	to 	consider 	the
	valid
	concerns
	of 	the
	United
	Faculty
Association.
	The
	District
	never
	specified
	its
	fears
	with
respect
	to
	the
	possibility
	of
	committing
	unfair 	practices
	if
it
	were
	to
	wait
	until 	after
	July
	1
	to 	take
	action, 	but 	the
position
	taken
	by
	the
	United
	Faculty Association with 	regard
to 	the 	conditions
	for
	continuing
	consultations
	makes
	it
	evident
that
	such
	fears
	were
	unjustified.
	Rather 	than
	considering
the
	alternatives
	suggested
	by
	the
	United
	Faculty Association,
the
	District
	took
	action
	on
	salaries
	which
	had
	a
	disparate
and
	adverse
	impact
	on
	that
	segment
	of
	the
	faculty
	which 	formed
the
	natural
	constituency 	of 	the
	United
	Faculty Association.
It
	is
	important 	to 	note
	that 	at
	no
	time,
	either
legally
	or
	factually,
	did 	the 	United
	Faculty 	Association
represent 	or 	purport 	to
	represent
	all
	part-time 	faculty
	members.
In 	the
	absence
	of
	an
	exclusive 	representative
	the 	United
Faculty 	Association,
	under 	Section 	3543.l(a),
	had
	the
	right
only
	to 	represent
	its
	members.
	Its
	membership, 	on
	the
	basis
of
	documents
	submitted 	to 	the
	District 	in
	support 	of 	the
request 	for 	recognition, 	totalled
	196
	part-time 	instructors.
The
	District
	employed
	approximately
	600
	part-time 	instructors.
Moreover,
	the 	unit 	for
	which
	the 	United 	Faculty Association
had 	requested 	recognition 	included 	full-time
	and	
part-
time	
faculty
	members..
	In
	spite 	these 	facts 	the 	Board
	of
Trustees
	on 	June
	28
	accepted
	Dr. 	Moore's 	recommendation
	to
withhold 	salary 	increases 	for
	all
	part-time 	faculty
	members
because 	the 	United 	Faculty 	Association 	had not 	consented 	to
the 	terms 	of 	the 	Board's 	offer.
-32-

The
	basic
	thrust
	of
	the
	charge
	is
	that
	the
	District
by
	its
	actions
	violated
	Section
	3543.S(d)
	which
	makes
	it
unlawful
	for
	an 	employer
	to
	"in
	any
way
	encourage
	employees
to
	join
	any
	organization 	in
	preference
	to 	another.
1118
This
stat
11to:•.7
	language
	is
	apparently
	based
	on
	Section
	8
(a)
(
3)
	of
the
	National
	Labor
	Relations
	Act
	(29
	U.S.C.
	sec.
	158(a)(3))
which
	makes
	it
	unlawful
	for
	an
	employer"
...
encourage
	or
discourage
	membership
	in
	any
	labor 	organization.
119	1
In
	San
	Dieguito, 	supra, 	the
	EERB
	considered 	the
propriety 	of 	action
	taken
	by
	that
	district's
	board
	of
	trustees
on
	June
	30, 	1976,
	with 	the 	expectation
	that
	the
	unfair
practice
	provisions 	of
	the
	EERA
	would
	take
	effect
	on
	July
	1.
There,
	the 	charge
	was
	based
	on
	Section 	3543.S(a),
	which
	the
EERB
	noted 	contained
	elements
	of
	NLRA
	Sections 	8(a)(3)
	and
S(a)(l).
	Relying
	to
	some
	extent
	on
	federal
	precedent	
inter-
preting	
Section
	8(a)(3),
	the
	EERB
	concluded:
In 	order 	to 	find
	a
	violation
	of(Section 	3543.S(a)),
	we
	would
	at
	a
minimum
	have
	to
	conclude
	that
	the
District's
	conduct
	was
	carried
	out
with 	the
	intent
	to
	interfere
	with
the
	rights 	of
	the
	employees
	to
	choosean
	exclusive 	representative,
	or
	that
the
	District's
	conduct 	had
	the
	natural
and
	probable
	consequence
	of
	interfering
with 	the
	employees'
	exercise 	of
	theirrights
	to
	choose 	an
	exclusive 	represent-
ative,	
notwithstanding 	the 	employer's
intent
	or 	motivation."
18
It 	is
	also 	alleged 	that 	the
	District 	interfered
with 	theadministration 	of 	the 	United 	Faculty Association.
	The
	facts
do
	not 	allege
	any
	direct 	interference
	and 	no
	is
made
	that 	very
	indirect 	inter
	ence, 	which
	arguably
	ispresent 	here,
	can be 	bas
	this
	type 	of 	charge.
Therefore, 	this 	allegation 	is
	not 	addressed 	herein.
19
Actually, 	Section 	3543.S(d)
	is
	a
	hybrid between
	NLRA
Sections 	8(a)(2) 	and 	S(a) (3), 	in 	that 	the 	language 	of
Section 	3543.S(d) 	with 	respect 	to 	domination 	or 	interferencewith 	the 	administration 	of 	an 	employee 	organization, 	or
contributing 	financial 	or 	other 	support 	to 	it, 	is 	derived
directly 	from NLRA
	Section 	8(a)(2).
-33-

The 	statutory basis 	for 	the 	present 	charge 	is 	different
than 	that 	considered 	in San Dieguito, 	although NLRA 	Section
8(a)(_3) 	has 	some 	relevance 	to both 	cases. 	Nevertheless,
because both 	cases 	involve 	the 	propriety 	of 	action 	taken by
the 	respective 	governing boards 	in 	late 	June 	of 	1976, 	and
the 	timing 	in both 	cases 	was 	dictated by 	the 	fact 	that 	the
unfair 	practice 	provisions 	of 	the 	EERA were 	to 	become 	effective
on 	July 	l, 	it 	is 	necessary 	to 	apply a 	similar 	standard of
proof 	in 	the 	two 	cases. 20 Thus, 	it 	must 	be 	determined whether
the 	District 	in 	the 	present 	case 	acted with 	improper 	intent
or whether 	the 	natural 	and 	probable 	consequence 	of 	its
actions was 	to 	encourage membership 	in 	another 	organization
in 	preference 	to 	the 	United 	Faculty Association. 	It 	is 	concluded
that 	the 	circ:umstances 	in 	the 	present 	case iare 	sufficiently
distinguishable 	from 	those 	in 	San 	Dieguito 	to 	require 	a 	deter-
mination 	that 	the 	District 	did 	engage 	in 	an 	unfair 	practice.
There 	is 	no 	direct. evidence 	on .the 	intent 	of 	the 	Beard
o f 	T rustees 	in	. 	tak'ing 	its	. 	action	. 	on 	sa 1aries.	. 	21 	Dr. 	Moore ' s
recommendation 	to 	the 	Board on 	June 	28 	was 	that 	it 	grant 	the
salary 	increase 	to 	full-time 	instructors 	because 	the 	Faculty
Senate had 	agreed 	to 	all 	terms 	of 	the 	Board's 	offer, 	and 	that
it 	take 	no 	action 	on 	salaries 	for 	part-time 	instructors 	because
the 	United 	Faculty Association had not 	accepted 	the 	offer.
That 	this 	was 	the 	basis 	of 	the 	Board's 	action 	is 	evidenced by
Moore's 	July 	2 memorandum. 	Thus, 	quite 	clearly 	the Board's
action was 	a 	direct 	response 	to 	the 	failure 	of 'the 	United 	Faculty
Association 	to 	accept 	the 	offer. 	Under 	the 	circumstances, 	the
20 rt 	is 	not 	concluded 	that 	the 	standard 	of San 	Dieguito would
necessarily 	app 	to 	an 	alleged 	lation 	of 	Section 	3543.S(d)
a 	context.
21Normally 	the 	intent 	of 	local 	elected 	officials 	in 	taking
legislative 	action 	is 	irrelevant 	to 	the 	validity 	of 	that
action, 	which must 	be measured by 	its 	objective 	effect 	rather
than 	the 	subjective motivation 	of 	the 	legislators, 	and 	the
legislators 	are 	privileged 	from 	testifying 	as 	to 	their 	intent.
County 	of 	Los 	Angeles 	v. 	Superior 	Court, 	13 	Cal. 3d 	721 	(1975).
Proof 	of 	intent, 	therefore, 	must 	come 	from 	the 	circumstances
under which 	the 	action was 	taken*
-34-

District's
	demand
	that
	the
	United
	Faculty Association
	agree
to
	its
	offer 	for
	all
	part-time
	employees
	prior
	to 	the
	June
	30
deadline
	was
	unreasonable. 	Nevertheless, 	the
	action
	penalized
those
	faculty
	members
	who
	formed
	the
	natural
	constituency
	of
the
	United
	Faculty Association.
	From
	this
	it
	may
	be 	concluded
that
	the
	action
	was
	motivated
	by 	animus
	against 	the
	United
Faculty Association.
	San
	Dieguito,
	however,
	seems
	to
	require
more
	than
	animus;
	under
	these
	circumstances
	it
	would
	require
intent
	to
	encourage
	membership
	in
	another
	organization.
22
Such
	specific 	intent
	cannot 	be
	inferred
	from
	these 	circumstances.
It
	is
	concluded,
	however,
	that
	the
	natural
	and
	probable
consequence
	of
	the 	Board's
	action
	was
	to
	encourage
	membership
in
	another 	organziation.
	The
	circumstances
	of 	the 	Board's
action
	on
	salaries,
	as
	communicated by
	Dr.
	Moore's
	July
	2
memorandum,
	were 	such
	that
	it
	was 	made
	to 	appear
	that
	the
United
	Faculty Association
	was
	to
	blame
	for
	the
	failure 	of
the 	part-time 	instructors
	to
	receive
	a
	salary 	increase, 	while
it
	was 	made
	to 	appear
	that
	the 	Faculty 	Association
	was
	to
	some
degree
	responsible 	for 	the
	salary 	increase
	to
	be
	received
	by
full-time 	instructors.
23
In
	reality,
	neither 	organization
	was
responsible
	except
	in
	its
	acquiescence 	or
	failure
	to 	acquiesce
to 	the 	Board's 	proposal.
	Under
	these 	circumstances, 	the 	granting
of
	a
	salary 	increase
	only 	to
	full-time 	faculty
	members
	had
	the
22
In
	San
	Dieguito 	the
	EERB
	found 	no
	unlawful
	intent
	because
	it
did not 	equate
	a
	desire
	to
	change
	District
	personnel
	policiesbefore 	July
	1
	with
	an
	intent
	to 	encourage
	a
	"no
	representation"vote.
	Here
	there
	is
	more
	than
	an
	intent
	to 	act 	before 	July
	1;
there 	is
	union 	animus.
	As
	noted 	in 	the 	text,
	however, 	San
Dieguito 	apparently 	requires
	more
	to 	establish
	unlawful
	intent.
23
While
	the 	Faculty Association
	would 	appear 	to 	be 	the benefi-
ciary 	of 	the 	Board's 	action,
	it
	is
	not
	found
	that 	the 	Faculty
Association 	sought
	this 	boost 	to
	its
	organizational 	effortsor
	was 	a
	party 	to 	the 	Board's 	action.
-35-

natural
	tendency
	of
	discouraging
	membership
	in
	the
	United
Faculty 	Association.
24
Therefore, 	the
	unfair 	practice
	charge
stated
	in
	paragraphs 	5(a)
	and
	5(c)
	is
	sustained.
The
	allegations 	of
	paragraph
	6,
	dealing with
Dr.
	Moore's
	July
	2
	memorandum, 	do
	not
	form 	an
	independent
basis 	for
	the 	finding 	of
	an
	unfair 	practice.
	Although
	the
Board
	presumably
	knew
	that
	the
	basis 	of
	its
	actions
	would
	be
communicated
	to 	the
	community,
	it
	is
	the 	Board's
	action
	which
constitutes
	discouragement
	of
	membership
	in
	the
	United
	Faculty
Association.
	It
	is
	argued
	that
	Moore's
	memorandum
	contains
misrepresentations
	in 	that
	it
	states
	that
	the
	United
	Faculty
Association 	executive
	committee
	regarded 	the 	Board's
	offer
as 	"not
	worth
	the
	effort
	to
	take 	to
	their
	members"
	and
	that
it
	had
	"refused 	the 	Board's
	offer
	to
	all
	600
	part-time
employees
	of 	the 	college
	district."
	However,
	the 	charging
party
	does
	not
	cite
	authority 	for
	the
	proposition
	that	
misrep-
resentations 	in
	themselves
	form
	the
	basis 	for
	an
	unfair
practice,
25
and
	the
	NLRB
	recently 	retreated
	from
	its
	long-standing
rule 	that
	a
	substantial
	misrepresentation
	timed 	to
	prevent
24
rn
	San
	Dieguito,
	it
	was
	concluded
	that
	the 	adoption
	ofrevised
	personnel
	policies
	without 	the
	agreement
	of 	the
Certificated
	Employees
	Council 	had
	the
	natural
	and
	probable
consequence
	of 	placing
	an
	exclusive 	representative 	in
	a
	lessdesirable 	negotiating 	position
	during 	subsequent
	negotiations,but
	that 	this
	was
	insufficient
	to 	find 	that 	the
	District
	hadengaged
	in
	an
	unfair 	practice.
	It
	was
	lt
	that 	the
	District's
action
	might 	as
	easily
	encourage 	as 	discourage 	the
	selectionof
	an
	exclusive 	representative.
The
	present 	case
	is 	different
	from 	San
	Dieguito 	in 	that 	here
it
	is
	made
	to 	appear
	that 	the 	United 	Faculty Association
	was
responsible 	for 	the 	unfavorable
	Board
	action,
	whereasSan
	Dieguito
	it
	was
	ear 	that 	the
	Board 	took
	full 	responsi-
bility	
for
	its
	action.
	Moreover,
	here 	ike
	San
	Dieguito,
the 	Board's 	action
	had
	a
	disparate 	effect
	on
	that 	part 	ofthe 	faculty
	forming 	the 	natural 	constituency of
	a
	disfavoredemployee
	organization.
	Thus, 	the 	finding 	in San Dieguitodoes 	not 	control 	the 	determination 	in 	this 	case.
25
Normally 	speech, 	in 	itself,
	does 	not 	constitute 	an 	unfairlabor 	practice 	if 	it
	contains 	no 	threat 	of 	reprisal 	or 	promise
of 	benefit.
	29 	U.S.C. 	sec. 	158(c);
	NLRB 	v. 	Gissel 	Packing 	Co.,
supra. -36-

other
	parties
	from making 	an
	effective
	reply before
	an
election 	constitutes
	a
	basis
	for
	invalidating
	the
	election.
It
	is
	now
	felt
	that
	employees
	generally 	are
	capable
	of
evaluating
	pre-election
	propaganda
	for
	what
	it
	is.
	Shopping
Kart
	Food
	Market,
	228
	NLRB
	No.
	190,
	94
	LRRM
	1705
	(1977).
Therefore,
	assuming
	that
	the 	July
	2
	memorandum
	contained
misrepresentations,
	this 	is
	not
	sufficient
	to
	find
	a
	separate
unfair 	practice.
H.
	The
	charge
	of
	discriminatory 	dismissal 	of
	James
	Shaw.
1. 	Findings
	of
	fact.
James
	Shaw was
	originally
	hired
	by
	the
	District
as
	a
	part-time
	instructor
	of
	psychology
	in
	September, 	1974.
He
	taught
	every 	semester
	from
	then
	until
	he
	was
	terminated
after
	the 	spring
	semester
	of
	1976.
	This
	included 	four
semesters 	during
	regular
	academic
	years
	and 	one
	summer
session.
	In
	each
	of
	the 	teaching 	periods
	he
	taught
	two
sections 	of
	Psychology 	1, 	"General 	Psychology," 	although
his 	credential 	qualified
	him
	to 	teach
	other
	psychology
courses 	as
	well.
Mr. 	Shaw
was
	one
	of
	144
	part-time 	instructors
who
	received
	letters
	dated
	May
	14,
	1976
	from
	Herbert
	E.
Roney,
	Dean:
	of
	Continuing Education
	stating:
As
	you
may
	know,
	the 	college
	must
reduce
	its
	program
	offerings 	forthe
	fall
	semester,
	1976. 	This
	is
to 	inform
	you
	that
	you
will
	not
be
	offered
	a
	teaching
	pos
	ion
for 	the
	fall
	semester
	of
	1976.
Prior 	to 	his 	termination,
	Shaw made
	repeated
inquiries 	of 	the 	administration with 	regard 	to 	the 	temporary
status 	of 	part-time 	instructors.
	In 	February
	1976 	Shaw
	wrote
to
	. 	Moore
	asking
	why
	inued 	to 	be 	ass
	a
	temporary
-37-

employee
	when
he
	was
	teaching
	in his
	fourth 	consecutive
semester
	at
	the 	college.
	Shaw
	indicated 	in
	the
	letter
	that
it
	seemed
	that
	District
	practices
	with 	regard 	to 	maintaining
part-time
	instructors
	in
	temporary
	status
	were
	not
	in
	compliance
with 	provisions
	of
	the 	Education
	Code,
	and
	he
	asked
	to
	be
informed
	of 	the
	Education
	Code
	provisions
	which
	justified
	those
practices.
	When Moore
	did
	not
	promptly
	reply 	to
	this
	letter,
Shaw
wrote
	a
	followup
	letter
	dated
March 	19
	which
	indicated
that
	a
	copy
	was
	being
	sent 	to
	Gene
	Huguenin
	of
	the
	California
Higher Education Association/CTA.
By
	a
	letter
	dated
	March 	26,
	Benita
	Haley,
	Co-ordinator
of
	Personnel 	Services,
	responded
	in
	a
	brief
	letter
	for
	Dr.
	Moore
that
	the
	District
	regarded
	its
	practices
	to
	be
	in
	compliance
with 	Education
	Code
	Section
	13335.
	Shaw was
	dissatisfied
with
the 	response
	and
	in April
	he
	again
wrote
	to
	Moore
	taking-
issue
with 	the.
District's
.
reliance
	on
	Section
	13335 	and
	very
	pointedly
.
asking
	for 	legal
	justification
	of
	the
	District's
	practice 	of
maintaining 	part-time 	instructors 	in
	temporary
	status.
	Shortly
thereafter,
	Shaw
wrote
	a
	similar
	letter
	to
	David
	E.
	Houtz,
Chairman
	of 	the
	Board
	of 	Trustees.
	Both
	of 	these
	letters
indicated 	that
	copies
	were
	being 	sent 	to
	Mr.
	Huguenin
	of
	CTA,
and
	the
	letter
	to
	Mr. 	Houtz 	was
	written
	on
	stationery with 	the
letterhead 	of
	the 	Part-Time 	(United) 	Faculty 	Association.
Ms.
	Haley 	responded very
	briefly
	on
	April
	20
	for
	Dr. 	Moore,
stating 	that
	Mr.
	Shaw's
	letter
	was
	being 	given 	consideration.
Mr. 	Houtz
	responded
	on
May 	11
	that
	the
	letter
	to
	him
	had 	been
referred 	to 	county 	counsel
	and
	that
	Mr. 	Shaw's
	attorney 	should
contact 	the 	county
	counsel's 	office.
	Various
	members
	of 	the
administration
	testified 	that
	they were 	aware
	that
	a
	lawsuit
-38-

was
	being 	considered 	or 	prepared
	at
	this
	time
	to
	establish
tenure
	rights
	for 	part-time
	instructors.
	Such
	a
	suit
was
filed
	against
	the
	District
	by
	CTA
	on
	August
	2,
	1976.
During
	the
	same
	time
	period
	that
	Shaw
had
	the
	above
correspondence
	with
	representatives 	of
	the
	District,
	the
administration
	was
	planning 	cutbacks
	in
	its
	program
	in
	response
to
	an
	anticipated' 	reduction 	in
	state
	support.
	Beginning
	in
March
	of
	1976,
	members
	of 	the 	administration held
	a
	series
	of
meetings
	to
	plan 	for
	the
	reduction
	in
	the
	college's
	program.
The
	determination
	was 	made
	that 	there
	should be
	a
	major
reduction 	in
	course
	offerings
	off-campus,
	but
	beyond
	that
	the
specific
	classes
	to
	be
	eliminated
were
	to
	be
	determined
	by
the
	heads
	of
	the 	various 	divisions 	within 	the
	college.
	The
division
	heads 	were
	instructed,
	however,
	that
	all
	layoffs
should
	be
	determined
	strictly
	according 	to
	seniority
	without
subjective 	evaluation 	of 	individual
	instructors.
	The
	reason
for
	this
	was
	that
	the 	administration
	was
	aware
	of 	the	
likeli-
hood	
of
	litigation
	relating
	to
	the 	layoffs
	and
	decided
	that
reliance 	solely
	on
	semiority
	was
	the
	safest
	method
	for
	avoiding
legal
	complications.
Psychology
	courses
	are 	offered
	by
	the 	Behavioral
Sciences
	Department, 	which
	is
	part 	of 	the
	Humanities
	Division.
Dr.
	Harold
	L.
	Cashin
	is
	dean
	of 	the
	Humanities
	Division
	and
was
	responsible 	for
	determining 	reductions 	within 	that 	division.
He
	was
	instructed 	to
	reduce 	the
	program by 	twenty
	percent,
which 	meant
	cutting
	back 	from
	750
	to
	600
	sections.
	He
	used
two
	criteria
	in
	making
	the
	initial
	determination 	as 	to
	which
sections
	would be 	eliminated..
	First,
	the
	off-campus 	program
was
	cut
	back
	substantially;
	second, 	general 	courses 	with
	many
sections, 	including
	Psycho
	1,
	were
	cut 	back because
	this
could be 	done
	without 	eliminating 	the 	courses 	altogether.
More
	specialized 	courses 	could not 	be 	cut back 	as 	easily.

Under
	the
	system
	established
	by
	Dr.
	Cashin,
	after
the 	determination
	was 	made
	as
	to 	the
	specific
	sections
	to
	be
eliminated, 	the
	instructors
	to
	be
	laid 	off
	were
	determinated
according
	to
	seniority
	on
	a
	course-by-course
	basis. 	Seniority
was
	based
	upon
	the 	date
	that
	each
	part-time
	instructor
	began
his
	or 	her
	most
	recent
	continuous
	service
	with 	the
	college.
In 	case
	of
	a
	tie,
	seniority
	was
	to
	be
	determined
	by
	the
	last
four
	digits
	in
	employees'
	social 	security
	numbers.
	For 	each
course
	to
	be
	cut
	back,
	instructors
	were
	listed
	in
	order
	of
declining
	seniority
	and
	the
	number
	of 	sections
	they
	had
taught
	in
	previous 	semesters.
	Thus,
	if
	a
	person
	had
	previously
taught
	two
	sections 	in
	a
	course,
	his 	or 	her
	name
	was
	listed
twice
	at
	the 	appropriate 	level 	of 	seniority.
	Then
	sections
were
	assigned
	by
	going
	down
	the
	list
	and
	circling
	the
	number
of
	names
	to
	match
	the
	number
	of 	sections 	to
	be
	taught 	during
the
	fall
	semester
	by
	part-time
	instructors.
Although
	credentialed 	part-time
	psychology
	instructors,
including
	Shaw,
	were
	qualified
	to 	teach 	courses
	other 	than
the
	ones
	they
	had
	previously 	taught, 	the 	decision
	was 	made
to
	dete.rmine
	layoffs 	purely
	on
	a
	course-by-course
	basis 	rather
than 	to 	consider
	an
	individual's
	ability
	to 	teach other 	courses.
The
	reason 	for
	this,
	according 	to
	Cashin,
	was
	to
	make
	the
system
	totally
	objective without 	giving
	any
	consideration 	to
subjective 	evaluations.
For 	Psychology 	1,
	there
	were
	to
	be
	eight 	sections
assigned 	to 	part-time 	instructors 	for 	the
	fall
	semester.
The
	previous 	spring 	there
	had been 	seventeen 	sections 	assigned
to 	part-time 	instructors.
	The
	sections
	were
	assigned 	according
to 	the 	system 	described
	above, 	and
	Shaw was
	the 	second most
senior 	part-time 	instructor
	who 	was
	not 	assigned
	a
	section 	in
-40-

that
	course
	for
	the
	fall.
26 One
	full-time 	instructor,
S.J.
	Terebinski,
	was
	assigned 	to 	teach
	a
	Psychology
	1
section 	in
	addition
	to
	his 	full-time
	teaching 	load.
	This
"overload"
	class
	was
	assigned
	because
	Terebinski
	was
	available,
wanted
	to 	teach
	the
	class,
	and
was
	regarded
	as
	an
	outstanding
scholar
	by
	the
	college.
Shaw
	testified
	that
	there
	were
	several 	part-time
instructors
	with
	less 	seniority
	than
	he
	who
	were
	retained
to
	teach
	in
	the
	fall.
	Only
	three 	of 	these
	instructors,
27
however,
	taught
	psychology
	courses,
	and
	these
	were
	courses
26
The
	most
	senior 	part-time
	instructor
	in
	Psychology
	1,
G.M.
	Fleishman, 	had
	previously 	taught
	one
	section 	in
	that
course
	and 	one
	section 	in
	Child
	Development
	12.
	He
	was
not 	assigned
	a
	Psychology
	1
	section 	for 	the
	fall,
	but
	he
was
	assigned
	a
	section 	in
	Child
	Development
	12.
There
	was
	one
	part-time
	instructor,
	A.E.
	Bishop,
	who
	had
less 	seniority
	than
	Shaw
	and
was
	erroneously 	assigned
	a
Psychology
	1
	section, 	but
	that 	section
was
	cancelled before
classes
	began.
	A.E. 	Bishop
	was
	apparently 	assigned 	to 	teach
sections 	in
	Psychology
	14 	and
	Sociology
	12
	in
	the
	fall,
	but
there
	is
	no
	evidence
	that 	this
	individual
	lacked 	the
	requisiteseniority 	in
	those 	courses, 	contrary 	to 	the 	contentions
	inthe 	charging
	party's 	brief.
In
	its
	brief,
	the
	charging
	party
	argues
	that
	one
	of 	the
	part-
time
	instructors
	who
	rece:Lved
	a
	fall
	assignment
	to 	teach
Psychology
	1
	actually
	had 	fewer
	consecutive 	semesters 	than
Shaw
because
	of
	a
	pregnancy 	leave
	and 	thus 	had
	less 	seniority
than
	Shaw
	under
	Dr.
	Cashin's
	system.
	The
	evidence 	presented
by
	the 	charging
	party
	on
	this 	point,
	however,
	is
	extremely
weak 	and
	is 	clearly 	of
	a
	hearsay 	nature:
	Shaw
	testifiedthat 	there
	was 	"some
	question" 	about 	Susan
	Artof's 	seniority
because 	he 	thought
	that
	she had 	taken
	a
	year
	off
	due
	topregnancy. 	In 	contrast 	to 	this
	evidence, 	the
	documents
prepared by 	Cashin 	and
	presented 	at 	the hearing 	demonstrate
a
	very 	orderly 	evaluation 	of 	seniority. 	Therefore,
	on
	thisrecord
	it
	cannot 	be 	found
	that
	Susan Artof had
	less 	senioritythan
	Shaw.
27
J.R. 	Kaplowitz, 	A.L. 	Mehler, 	and A.E. 	Bishop. 	(With
	respectto 	Bishop,
	seen.
	26, 	supra.)
	Of
	these 	three, 	Bishop 	received
the
	May 	14 	dismissal 	letter but was
	rehired 	for 	the 	fall.
The 	other 	two were 	not
	among
	the 	144 	instructors
	who
	received
dismissal 	letters.
-41-

other
	than
	Psychology 	1.
	There
	was
	one
	part-time
	instructor,
J.P.
	Walker,
	who
	was
	hired 	for
	the
	first
	time
	in
	the
	fall
of
	1976
	and
	taught
	Psychology
	2
	after
	the
	seniority
	list
	for
that
	course
	was
	exhausted.
	There were
	approximately
	60
new
hires
	among
	part-time
	instructors 	in
	the 	college
	as
	a
whole
	for 	the
	fall,
	1976
	semester.
In
	short, 	the
	evidence
	requires
	a
	finding
	that
the 	reduction 	of
	staff
within
	the
	Behavioral 	Sciences
Department
	was 	made
	according
	to 	the 	course-by-course
seniority
	system
	set
	up
	by 	Dr.
	Cashin,
	and
	that
	there
	was
no
	deviation
	in 	that
	system
with 	respect
	to 	the 	termination
of
	Mr. 	Shaw.
	Under
	that
	system,
	at 	least,
	there
	was 	no
requirement
	that
	Shaw
be
	considered
	for
	any
	course
	other
than
	Psychology 	1,
	for
	which 	he
	failed
	to
	qualify
	based
	on
seniority.
Mr.
	Shaw was 	known
	to 	the 	college 	administration
and
	to
	Dr.
	Cashin 	as
	an
	activist
	on
	behalf 	of
	the 	United
Faculty 	Association.
	He
	was 	known
	to 	the
	administration
because
	of his
	letters
	seeking
	to
	clarify
	the 	legal 	basis
for 	maintaining
	part-time 	instructors 	in
	temporary
	status
and
	because
	his 	leadership 	role 	in 	organizing 	the 	United
Faculty Association
	and
	his 	position
	as
	vice-president 	of
that
	organization
were
	well-publicized
	through
	organizational
bulletins
	which 	were
	available 	to 	the 	administration.
	Both
Mr.
	Fugle 	and 	Dr.
	Cashin
	knew
	of
	Shaw,
	although 	they 	did not
know
	him
	personally, 	because 	they were
	present
	at
	a
	meeting
of 	part-time 	instructors 	at
	which
	Shaw
	spoke. 	Cashin
	did
not 	as
	part 	of his 	responsibilities
	deal
	directly
with
employee
	organizations, 	but
	he
	testified 	that
	he
	knew Shaw
was
	"active." 	In 	fact,
	Cashin
	sent
	a
	note 	to
	Shaw
	in
	March
that
	he would be 	attending
	one
	of
	Shaw's
	classes.
	The
purpose 	of 	the
	visit,
	according 	to 	Cashin,
	was
	to 	talk 	to
Shaw
because 	of 	Shaw's 	concern 	about 	the 	anticipated 	layoffs.
The meeting, 	however, 	never 	occurred because 	that 	particular
class
	was
	either 	cancelled 	or dismissed 	early.
-42-

With
	regard
	to
	the
	District's
	contention
	that
	the
charge
	of 	discriminatory 	dismissal
	is
	barred
	by
	the
	statute
of 	limitations
	the
	relevant 	facts 	are
	the 	following:
When 	Shaw
	received 	the
	May
	14
	termination
	letter
he 	had
	some
	suspicion
	that
	he
	was
	being
	singled
	out 	because
of
	his
	activities
	on
	behalf
	of 	the
	United
	Faculty Association.
The
	United
	Faculty Association
	at 	that
	time
	attempted
	to
obtain
	information
	from
	the
	District
	with
	respect
	to
	ithe
criteria
	used
	in
	dismissing
	part-time
	instructors,
	but 	the
District
	did 	not
	respond
	to
	this
	request.
	(See
	part
	D,
	supra.)
During
	the
	summer,
	the 	United
	Faculty 	Association
	participated
in
	the 	preparation 	of
	a
	lawsuit 	against
	the
	District
	seeking
to
	establish
	tenure
	rights
	for 	part-time
	instructors.
	In
the
	fall,
	15
	of
	the
	144
	part-time
	instructors
	who
	received
the
	May
	14
	letters
	were
	rehired.
	Using
	the
	fall
	class
schedule,
	Shaw
	attempted 	to
	learn
	whether
	any
	part-time
instructors
	with
	less 	seniority
	than
	he 	had been
	retained.
Three 	psychology
	teachers 	with
	less
	college
	seniority
were
teaching
	in
	the
	fall,
	and 	one
	of 	these
	was
	among
	the
	15
	part-
time
	instructors
	who
	were
	rehired.
	It
	was
	not
	until
	the
hearing 	in 	this
	matter
	that
	Shaw
	learned 	of 	the 	course-by-
course
	seniority
	system
	utilized
	by
	the
	District.
At
	the
	outset 	of 	the 	hearing
	when
	the
	District
renewed
	its
	motion
	to 	dismiss 	based
	on
	the
	statute
	of
limitations,
	the 	United 	Faculty Association 	argued
	that
	it
would be
	shown
	that
	the
	District
	had
	a
	practice 	of 	sending
out 	dismissal
	letters 	in 	the 	spring,
	and
	then
	rehiring 	part-
time
	instructors 	in
	the
	fall.
	Shaw's 	testimony
	established
that 	there
	was 	no
	such
	practice.
	The
	United 	Faculty 	Associa-
tion
	argues
	that
	Shaw's
	dismissal
	was
	unlawful 	by
	attacking
the
	Dis
	ct's
	course-by-courses
	tem.
this
	system
was
	established
	and 	applied 	to
	Shaw
	in 	the 	spring
outside 	the 	six-month 	limitations 	period, 	rather 	than 	the 	fall.
-43-

2. 	Conclusions 	of 	law.
The 	United 	Faculty 	Association 	cites 	federal
precedent 	for 	the 	proposition 	that 	under 	the 	National 	Labor
Relations 	Act, 	the 	six-month 	statute 	of 	limitations 	for
issuance 	of 	unfair 	labor 	practice 	complaints 	does 	not 	bar
a 	charge 	where 	the 	alleged 	illegal 	act 	occurred more 	than
six months 	before 	the 	complaint 	issued but 	the 	charging
party was 	unaware 	of 	the 	act 	until 	a 	point 	within 	the 	six-
month 	period. 	See, 	Skippy 	Enterprises, 	Inc., 	211 	NLRB 	222,
87 	LRRM 	1063 	(1974); 	New York 	Telephone 	Co. 	v. 	NLRB, 	520
F.2d 	411, 	89 	LRRM 	3028 	(2d 	Cir., 	1975); 	NLRB 	v. 	Colonial
Press, 	Inc., 	509 	F.2d 	850, 	88 	LRRM 2337 	(8th 	Cir., 	1975).
These 	cases, 	however, 	are 	inapplicable because 	Shaw knew
of 	the 	alleged 	illegal 	act 	on May 	14; 	he 	simply 	did not
know 	the 	District's 	criteria 	at 	that 	time. 	Indeed, 	he 	did
not 	know 	the 	District's 	criteria 	at 	the 	time 	he 	filed 	the
charge. 	There was 	no 	new 	act 	which 	might 	have 	put 	Shaw
on 	notice 	that 	instructors 	who 	possibly had 	less 	seniority
than 	he were 	retained 	to 	teach 	in 	the 	fall. 	Two 	of 	the
three 	psychology 	teachers 	who may 	have 	had 	less 	college
seniority 	than 	Shaw, 	but 	were 	nevertheless 	retained, 	never
received 	the 	May 	14 	letter. 	Shaw's 	testimony 	does 	not
indicate 	that 	he 	felt 	tha 	charge 	should be 	filed 	because
of 	the 	fact 	that 	some 	part-time 	instructors 	were 	rehired
in 	the 	fall. 	Therefore, 	this 	case 	falls 	into 	the 	category
where 	an 	unfair 	practice 	cannot 	be made 	out 	except 	by
reliance 	on 	events 	occurring 	outside 	the 	six-month 	period,
and 	for 	that 	reason 	the 	charge 	is 	barred. 	Local 	Lodge
1424, 	I.A.M., 	v. 	NLRB, 	362 	U.S. 	411, 	45 	LRRM 	3212 	(1960).
Since 	this 	charge 	is 	barred by 	the 	statute 	of
1 	ons, 	it 	is 	unnecess 	to 	cons 	the 	ts.
is 	recommended 	that 	the 	charge 	alleging 	discriminatory
dismissal 	of 	James 	Shaw 	(case 	number 	LA-CE-57) 	be 	dismissed.
-44-

I.
	The
	remedy.
Since
	the
	District
	has 	been
	found
	to
	have 	engaged
in
	an
	unfair 	practice
	by
	the 	granting 	of 	salary 	increase
to
	full-time 	faculty
	members
	while 	withholding
	an
	increase
to 	the
	part-time 	faculty
	members
	under 	circumstances
	tending
to 	discourage
	membership
	in 	the
	United
	Faculty Association,
it
	is
	necessary 	to 	devise
	a
	remedy.
	The
	only
	remedy	
specif-
ically	
requested
	by
	the
	United
	Faculty 	Association
	is
	a
bargaining 	order.
	As
	previously 	discussed 	(see
	part
	B,
supra),
	such
	a
	remedy
	is
	improper
	where
	a
	question
	of
representation
	exists.
In 	cases 	involving
	a
	pre-election
	denial 	or 	grant
of benefits,
	the
	NLRB
	normally
	issues
	a
	cease
	and
	desist
order
	designed
	to
	dissipate
	the
	effects
	of 	the
	employer's
unfair
	labor
	practices
	and
	to
	deter
	a
	repetition
	thereof,
although
	there
	is
	a
	reluctance
	to
	require
	an 	employer
	to
withdraw
	a
	benefit
	granted
	prior
	to
	an
	election.
	Eg.
Stayer's
	Johnsonville
	Meats,
	Inc.,
	174
	NLRB
	693,
	70
	LRRM
1320
	(1969).
	On
	the 	other
	hand,
	it
	cannot 	be
	ordered
	that
an 	employer
	grant
	a
	specific 	benefit.
	Cf.
	H.K.
	Porter
	Co.,
v.
	NLRB,
	397
	U.S. 	99,
	73
	LRRM
	2561
	(1970); 	Ex-Cell-O
	Corp.,
185
	NLRB
	107,
	74
	LRRM
	1740
	(1970).
In
	this
	case, 	the
	differenti~l
	wage
	increase
granted 	for 	the
	1976-77 budget 	year 	cannot
	directly
	be
remedied without 	unduly 	punishing 	the
	full-time 	faculty
members
	who
	received 	the 	increase. 	Therefore, 	the
	recommended
remedy
	only
	affects 	prospective 	salary 	increases, 	while
	at
the
	same
	time 	informing 	the 	electorate 	that 	the 	denial 	of
a
	salary 	increase 	to 	part-time 	faculty
	members
	for
	1976 	77
was
	solely 	the 	responsibi
	ty
	of
	trict
	and
	not
	that
of
	Uni
	Faculty 	sociation.
It 	is
	to 	be 	noted 	that 	in
	San
	Dieguito, 	supra 	the
EERB
	recognized 	that
	a
	school 	employer 	has 	an 	option 	to
consult 	with 	employee 	organizations 	prior 	to 	the 	selection
-45-

of
	an
	exclusive
	representative.
	This
	recommended
	order
requires
	that
	if
	the 	option
	to
	consult
	is 	utilized,
	any
consultation
	must
	be
	on
	a
	faculty-wide
	basis
	with 	the
participation
	of
	both
	certificated
	employee
	organizations,
and
	that
	no
	separate
	agreements 	should be
	reached
with
	any
organization
	with
	respect
	to
	any 	segment
	of
	the
	faculty.
RECOMMENDED
	ORDER
Upon
	the 	foregoing
	findings 	of
	fact,
	conclusions
of
	law, 	and
	the
	entire
	record 	of
	this
	case,
	and
	pursuant
to
	Government
	Code
	Section 	3541.S(c),
	it
	is
	hereby
	ordered
that
	the
	Santa
Monica
	Community
	College
	District,
	Board
	of
Trustees, 	superintendent,
	and
representatives 	shall:
A. 	CEASE
	AND
	DESIST
	FROM:
1. 	Encouraging
	membership
	in
	another
	organization
in 	preference
	to 	the 	Santa
	Monica
	College 	United
	Faculty
Association
	by
	granting
	a
	salary 	increase 	to
	full-time
faculty
	members
	while
	denying
	a
	salary 	increase
	to
	part-
time
	faculty
	members,
	except
	that
	nothing 	contained
	herein
should be
	construed
	as
	requiring
	the
	Respondent
	to 	revoke
any
	wage
	increase
	it
	has
	heretofore 	granted 	or
	as
	preventing
the
	Respondent
	from
	consulting
	jointly
with 	the 	Santa
	Monica
College 	United 	Faculty Association
	and
	the 	Santa
	Monica
College 	Faculty Association with 	respect 	to 	salary 	increases
for
	all 	certificated
	employees
	of
	Respondent, 	excluding
management,
	supervisory
	and
	confidential
	employees;
2.
	In
	any
	like 	or 	similar
	manner
	encouraging
membership
	in 	another
	employee
	organization 	in 	preference
to 	the 	Santa
Monica
	College 	United 	Faculty Association,
-46-

B.
	TAKE
	THE
	FOLLOWING
AFFIRMATIVE
	ACTIONS 	DESIGNED
TO
	EFFECTUATE
	THE
	POLICIES
	OF
	THE
	ACT:
1.
	Prepare
	and
	post
	copies
	of 	the 	order
	at
	each
of
	its
	campuses
	and
	work
	sites
	for
	sixty
	(60)
	calendar
	days
in
	conspicuous
	places,
	including
	all
	locations
	where
	notices
to
:certificated
	employees
	are
	customarily 	posted.
2. 	At
	the
	end
	of
	the 	posting 	period,
	notify
	the
Los
	Angeles
	Regional
	Director 	of 	the
	Educational
	Employment
Relations
	Board
	of
	the
	action
	it
	has 	taken
	to
	comply
	with
this
	order.
All
	other
	charges
	filed
	by
	the
	Santa
Monica
	College
United 	Faculty Association 	against
	the
	Santa
	Monica
	Community
College
	District
	(case
	numbers
	LA-CE-41
	and
	LA-CE-57)
	are
dismissed.
Pursuant 	to
	California
	Administrative
	Code,
Title
	8,
	Section
	35029,
	this
	recommended
	decision
	and
	order
shall
	become
	final
	on 	November
	8,
	1977,
	unless
	a
	party
files
	a
	timely 	statement 	of 	exceptions.
	See
	California
Administrative
	Code,
	Title
	8,
	Section
	35030.
Dated: 	October
	27, 	1977
-47-
Franklin 	Silver
Hearing
	Officer