Cerritos Community College District (PERB 0141E)

STATE 	OF CALIFORNIA
DECISION OF THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA TEACHERS ASSOCIATION,
Charging Party, APPELLAN 	ase No. LA-CE-205
v .
CERRITOS COMMUNITY COLLEGE 	PERB Decision No. 141
DISTRICT ,
October 14, 1980
JIM SHAW,
Charging Party, APPELLANT, ) 	se No. LA-CE-206
v .
CERRITOS COMMUNITY COLLEGE
DISTRICT ,
Appearances: Patrick D. Sisneros, Attorney (Wagner & Wagner)
for Cerritos Community College District; Eugene Huguenin for
California Teachers Association.
Before Gluck, Chairperson; Moore, Member.
DECISION
This case is before the Public Employment Relations Board
(hereafter PERB or Board) on exceptions filed by Jim Shaw and
the California Teachers Association (hereafter Charging
Parties) to the hearing officer's proposed decision dismissing
the unfair practice charges filed by the Charging Parties
CALIFORNIA TEACHERS 	ASSOCIATION,
Charging 	Party, 	APPELLANT ,
v.
CERRITOS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.	Respondent.
T,) 	Case 	No. 	LA-CE-205
PERB 	Decision 	No. 	141
October 	14, 	1980
JIM 	SHAW,
Charging 	Party, 	APPELLANT
v.
CERRITOS 	COMMUNITY COLLEGE
DISTRICT,
Respondent.	Respondent.
Case 	No. 	LA-CE-206	Ca
C
Appearances:
)
)
)
)
)
)
)
)
)
)
__________________ )
)
)
)
, )
)
)
)
)
)
)
)
__________________ )
Patrick 	D. 	Sisneros, 	Attorney 	(Wagner 	& Wagner)
for 	Cerritos 	Community 	College 	District; 	Eugene 	Huguenin 	for
California 	Teachers 	Association.
Before 	Gluck, 	Chairperson; 	Moore, 	Member.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	on 	exceptions 	filed 	by 	Jim 	Shaw 	and
the 	California 	Teachers 	Association 	(hereafter 	Charging
Parties) 	to 	the 	hearing 	officer's 	proposed 	decision dismissing
the 	unfair 	practice 	charges 	filed 	by 	the 	Charging 	Parties

against Cerritos Community College District (hereafter
District) . The Charging Parties have excepted to the hearing
officer's finding that the District's failure to rehire
part-time instructor Jim Shaw did not violate section 3543.5 (a)
of the Educational Employment Relations Act (hereafter EERA) .
Having considered the record and proposed decision in light
of the exceptions and briefs, the Board finds the hearing
officer's findings of fact to be free from prejudicial error
and affirms those findings.
The hearing officer based his conclusion that the
District's non-retention of Charging Party Jim Shaw did not
violate section 3543.5 (a) on the Board's decision in
ERA is codified at Government Code section 3540
et seq. All statutory references are to the Government Code
unless otherwise indicated.
Section 3543.5 (a) provides:
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.
e Charging Parties have excepted to certain
credibility findings made by
consideration of the entire re
2
The E
against 	Cerritos 	Community 	College 	District 	(hereafter
District). 	The 	Charging 	Parties 	have 	excepted 	to 	the 	hearing
officer's 	finding 	that 	the 	District's 	failure 	to 	rehire
part-time 	instructor 	Jim 	Shaw 	did 	not 	violate 	section 	3543.S(a)
of 	the 	Educational 	Employment 	Relations 	Act 	(hereafter 	EERA) • 1
Having 	considered 	the 	record 	and 	proposed 	decision 	in 	light
of 	the 	exceptions 	and 	briefs, 	the 	Board 	finds 	the 	hearing
officer's 	findings 	of 	fact 	to 	be 	free 	from 	prejudicial 	error
an d 	a ff 1rms	. 	t h ose 	f'1n d'1ngs. 2
The 	hearing 	officer 	based 	his 	conclusion 	that 	the
District's 	non-retention 	of 	Charging 	Party 	Jim 	Shaw 	did 	not
violate 	section 	3543.S(a) 	on 	the 	Board's 	decision 	in
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	indicated.
Section 	3543.S(a) 	provides:
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.
2Th2The 	Charging 	Parties 	have 	excepted 	to 	certain
credibility 	findings 	the hearing officer. Based on our	made 	by 	the 	hearing 	officer. 	Based 	on 	our
consideration 	of 	the cord, including the totality of	entire 	record, 	including 	the 	totality 	of
testimony offered, we find no basis for reversing his	testimony 	offered, 	we 	find 	no 	basis 	for 	reversing 	his
findings. See Santa Clara Unified School District (9/26/79)	findings. 	See 	Santa Clara 	Unified 	School 	District 	(9/26/79)
PERB Decision No. 104.	PERB 	Decision 	No. 	104.
2

San Diegueto Union High School District (9/2/77) EERB Decision
No. 22. Since the issuance of the hearing officer's decision,
San Diegueto has been modified by Carlsbad Unified School
District (1/30/79) PERB Decision No. 89. In that case, the
Board determined that there must be a nexus between the
employer's acts and the exercise of employee rights under the
EERA in order to find a violation of section 3543.5 (a). (See
also Santa Monica Community College District (9/21/79) PERB
Decision No. 103.) Here, the Charging Parties failed to
establish the requisite nexus between Shaw's non-retention and
his organizational activities. Therefore, we affirm the
hearing officer's dismissal of the unfair practice charge in
this case.
ORDER
Upon the foregoing Decision and the entire record in this
case, the Public Employment Relations Board ORDERS that:
The unfair practice charges filed by Jim Shaw and the
California Teachers Association against the Cerritos Community
College District are DISMISSED.
PER CURIAM
w
San 	Dieguito 	Union 	High 	School 	District 	(9/2/77) 	EERB 	Decision
No. 	22. 	Since 	the 	issuance 	of 	the 	hearing 	officer's 	decision,
San 	Dieguito 	has 	been modified 	by 	Carlsbad 	Unified 	School
District 	(1/30/79) 	PERB 	Decision 	No. 	89. 	In 	that 	case, 	the
Board 	determined 	that 	there 	must 	be 	a 	nexus 	between 	the
employer's 	acts 	and 	the 	exercise 	of 	employee 	rights 	under 	the
EERA 	in 	order 	to 	find 	a 	violation 	of 	section 	3543.S(a). 	(See
also 	Santa 	Monica 	Community 	College 	District 	(9/21/79) 	PERB
Decision 	No. 	103.) 	Here, 	the 	Charging 	Parties 	failed 	to
establish 	the 	requisite 	nexus 	between 	Shaw's 	non-retention 	and
his 	organizational 	activities. 	Therefore, 	we 	affirm 	the
hearing 	officer's 	dismissal 	of 	the 	unfair 	practice 	charge 	in
this 	case.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that:
The 	unfair 	practice 	charges 	filed 	by 	Jim 	Shaw 	and 	the
California 	Teachers 	Association 	against 	the 	Cerritos 	Community
College 	District 	are 	DISMISSED.
PER CURIAM
3

PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
CALIFORNIA TEACHERS ASSOCIATION,
Unfair Practice
Charging Party, 	Case No. LA-CE-205
V .
CERRITOS COMMUNITY COLLEGE
DISTRICT,
JIM SHAW,
Charging Party, 	Case No. LA-CE-206
v . 	PROPOSED DECISION
CERRITOS COMMUNITY COLLEGE 	(9/28 /78)
DISTRICT,
Appearances : 	Patrick D. Sisneros, Attorney (Wagner & Wagner)
for Cerritos Community College District; Eugene Huguenin for
California Teachers Association.
Before Bruce Barsook, Hearing Officer.
PROCEDURAL HISTORY
On November 30, 1977, Charging Party, California Teachers
Association (hereafter CTA) , filed an unfair practice charge
(LA-CE-205) against the Cerritos Community College District
(hereafter District), alleging that the District had violat
ection 3543.5 (a) of the Educational Employment Relations Act
(hereafter EERA) . Specifically, the charge states that the
District, through its agents Wilford Michael, Sherill Moses
Gov. Code sec. 3540 et sea. All statutory references
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE 	OF CALIFORNIA
CALIFORNIA 	TEACHERS 	ASSOCIATION,
Charging 	Party,
v.
CERRITOS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Unfair 	Practice
Case 	No. 	LA-CE-205
JIM 	SHAW,
Charging 	Party,
v.
CERRITOS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case 	No. 	LA-CE-206
PROPOSED 	DECISION
(9/28 /78)
Appearances:
Respondent.
)
)
)
)
)
)
)
)
)
)
___________________ )
Respondent.
)
)
)
)
)
)
)
)
)
)
___________________ )
Patrick 	D. 	Sisneros, 	Attorney 	(Wagner 	& Wagner)
for 	Cerritos 	Community 	College 	District; 	Eugene 	Huguenin 	for
California 	Teachers 	Association.
Before 	Bruce 	Barsook, 	Hearing 	Officer.
PROCEDURAL 	HISTORY
On 	November 	30, 	1977, 	Charging 	Party, 	California 	Teachers
Association 	(hereafter 	CTA), 	filed 	an 	unfair 	practice 	charge
(LA-CE-205) 	against 	the 	Cerritos 	Community 	College 	District
(hereafter 	District), 	alleging 	that 	the 	District ed	had 	violated
section	s 	3543.S(a) 	of 	the 	Educational 	Employment 	Relations 	Act
(hereafter 	EERA). 1 Specifically, 	the 	charge 	states 	that 	the
District, 	through 	its 	agents 	Wilford 	Michael, 	Sherill 	Moses
lGov. 	Code 	sec. 	3540 	et 	sea. 	All 	statutory 	references
are to the California Government Code unless otherwise	are 	to 	the 	California 	Government 	Code 	unless 	otherwise
specified.	specified.

and others refused to rehire James Shaw, a part-time
instructor, for the fall 1977 school term because of his
exercise of rights guaranteed by the EERA. On December 2,
1977, Charging Party, James Shaw, filed an unfair practice
charge (LA-CE-206) alleging the same violation.
On December 9, 1977, these two unfair practice charges were
consolidated. The District filed its answer on
December 22, 1977.
After an informal conference failed to resolve the dispute,
a formal hearing was held on March 2, 3, and 20, 1978.
ISSUE
1. 	Was the District's determination not to rehire
James Shaw for the fall 1977 school term because of his
exercise of rights guaranteed by the EERA (section 3543.5 (a) )?
FINDINGS OF FACT
The essence of the charge is that in the spring of 1977,
Sherill Moses, then acting division chairman, refused to
recommend James Shaw for reemployment as a part-time instructor
because of Shaw's organizational activity. The District
disputes this argument and argues that Shaw was not reemployed
because of his abrasive attitude and his inability to get along
with others.
Many of the facts in this case are not in dispute.
However, a few crucial events are disputed and the
and
	others
	refused 	to
	rehire
	James
	Shaw, 	a
	part-time
instructor,
	for
	the
	fall
	1977
	school
	term
	because
	of
	his
exercise
	of
	rights
	guaranteed
	by
	the
	EERA.
	On
	December
	2,
1977,	
Charging
	Party,
	James
	Shaw,
	filed
	an
	unfair
	practice
charge
	(LA-CE-206)
	alleging
	the
	same
	violation.
On
	December
	9,
	1977,
	these
	two
	unfair
	practice
	charges
	were
consolidated.
	The
	District
	filed
	its
	answer
	on
December
	22, 	1977.
After
	an
	informal 	conference
	failed
	to 	resolve 	the
	dispute,
a
	formal
	hearing
	was
	held
	on 	March
	2, 	3,
	and
	20, 	1978.
ISSUE
1.
	Was
	the
	District's
	determination
	not
	to
	rehire
James 	Shaw
	for 	the
	fall
	1977
	school
	term 	because
	of
	his
exercise
	of
	rights
	guaranteed
	by
	the
	EERA
	(section 	3543.S(a))?
FINDINGS
	OF
	FACT
The
	essence 	of 	the 	charge
	is 	that
	in 	the 	spring 	of
	1977,
Sherill
	Moses,
	then 	acting 	division
	chairman, 	refused
	to
recommend 	James 	Shaw
	for
	reemployment 	as
	a
	part-time 	instructor
because 	of 	Shaw's
	organizational 	activity.
	The
	District
disputes 	this
	argument 	and
	argues
	that
	Shaw 	was
	not 	reemployed
because 	of 	his 	abrasive 	attitude
	and
	his 	inability 	to 	get
	along
with 	others.
Many
	of 	the 	facts 	in 	this 	case 	are 	not 	in 	dispute.
However, 	a 	few
	crucial 	events 	are 	disputed 	and 	the
2

interpretations that each side gives to them are in substantial
conflict. Where appropriate, this opinion will state the
differing versions of these events and make a determination as
to the more credible interpretation of the facts.
James Shaw, a part-time psychology instructor, taught six
consecutive semesters (Fall 1974-Spring 1977) at the Cerritos
Community College.
In the spring of 1976, Shaw participated in organizing
part-time faculty. 	Sometime in March 1976, he prepared a
meeting announcement and placed it in the mailboxes of
part-time faculty.
The part-timers held several subsequent meetings and out of
this grew the Cerritos College Part-Time Faculty Association
(hereafter CCPTFA) . Shaw drafted the constitution for the
organization and served on its executive committee.
In the fall of 1976, Shaw testified that his organizational
activity was "largely confined to discussions with
Mary Capdevielle, " president of the CCPTFA. Sometime in
October of 1976, Shaw attended a meeting between the CCPTFA
Executive Committee and representatives of the Cerritos College
meeting, the executive committee decided to disband the CCPTFA
As part of an organizing effort in behalf of the CCFA, Shaw
attempted to persuade part-time instructors to sign
authorization cards. On November 13, Shaw was confronted by
W
interpretations 	that 	each 	side 	gives 	to 	them 	are 	in 	substantial
conflict. 	Where 	appropriate, 	this 	opinion 	will 	state 	the
differing 	versions 	of 	these 	events 	and 	make 	a 	determination 	as
to 	the 	more 	credible 	interpretation 	of 	the 	facts.
James 	Shaw, 	a 	part-time 	psychology 	instructor, 	taught 	six
consecutive 	semesters 	(Fall 	1974-Spring 	1977) 	at 	the 	Cerritos
Community 	College.
In 	the 	spring 	of 	1976, 	Shaw 	participated 	in 	organizing
part-time 	faculty. 	Sometime 	in 	March 	1976, 	he 	prepared 	a
meeting 	announcement 	and 	placed 	it 	in 	the 	mailboxes 	of
part-time 	faculty.
The 	part-timers 	held 	several 	subseauent 	meetings 	and 	out 	of
this 	grew 	the 	Cerritos 	College 	Part-Time 	Faculty 	Association
(hereafter 	CCPTFA). 	Shaw 	drafted 	the 	constitution 	for 	the
organization 	and 	served 	on 	its 	executive 	committee.
In 	the 	fall 	of 	1976, 	Shaw 	testified 	that 	his 	organizational
activity 	was 	"largely 	confined 	to 	discussions 	with
Mary 	Capdevielle," 	president 	of 	the 	CCPTFA. 	Sometime 	in
October 	of 	1976, 	Shaw 	attended 	a 	meeting 	between 	the 	CCPTFA
Executive 	Committee 	and 	representatives 	of 	the 	Cerritos 	College
Faculty Association (hereafter CCFA) . As a consequence of this	n 	(hereafter 	CCFA). 	As 	a 	consequence 	of 	this
meeting, 	the 	executive 	committee 	decided 	to 	disband 	the 	CCPTFA
and 	become 	part 	of 	the 	CCFA.	and become part of the CCFA.
Faculty 	Associatio
As 	part 	of 	an 	organizing 	effort 	in 	behalf 	of 	the 	CCFA, 	Shaw
attempted 	to 	persuade 	part-time 	instructors 	to 	sign
authorization 	cards. 	On 	November 	13, 	Shaw 	was 	confronted 	by
3

the District switchboard operator, who refused to permit Shaw
to place union literature in faculty mailboxes without prior
permission from the District. Shaw incorrectly identified the
operator as the wife of a District administrator. Claiming a
statutory right to distribute union literature, Shaw
disregarded these protests and stuffed the mailboxes anyway.
Around November 27, Shaw and Sherill Moses met for the
first time. Mary Capdevielle introduced Shaw to Moses by
stating, "here is the guy that put all the nice literature in
the boxes. .
After November 13, Shaw testified that he spent time in
personal contact with other members of the faculty trying to
persuade them to sign authorization cards.
Throughout this period, Shaw indicated that he had general
discussions with Keith Hinrichsen, division chairman of the
social sciences division, and Dean Paige, director of the
extended day program, regarding part-time employee rights.
Shaw testified that his relationship with these two men was
cordial.
No testimony was presented indicating what organizational
activity, if any, Shaw engaged in during the spring of 1977.
At the commencement of the spring 1977 semester,
Sherill Moses, then the political science department chairman,
was selected as acting division chairman of the social sciences
division, while Keith Hinrichsen, its permanent chairman, was
away on sabbatical.
"Shaw was neither an officer nor a committee chairman of
CCFA.
the
	District
	switchboard
	operator,
	who
	refused 	to 	permit
	Shaw
to 	place
	union
	literature
	in
	faculty
	mailboxes
	without
	prior
permission
	from
	the
	District.
	Shaw
	incorrectly 	identified
	the
operator
	as
	the 	wife
	of
	a
	District
	administrator.
	Claiming
	a
statutory 	right
	to
	distribute
	union
	literature,
	Shaw
disregarded 	these
	protests
	and
	stuffed
	the
	mailboxes
	anyway.
Around 	November
	27,
	Shaw 	and
	Sherill
	Moses 	met
	for 	the
first
	time.
	Mary
	Capdevielle 	introduced
	Shaw
	to
	Moses 	by
stating,
	"here
	is
	the
	guy
	that
	put
	all
	the 	nice
	literature
	in
the
	boxes
••••
"
After
	November
	13,
	Shaw
	testified
	that
	he
	spent
	time
	in
personal 	contact
	with
	other
	members
	of 	the
	faculty 	trying
	to
persuade
	them
	to 	sign
	authorization 	cards.
2
Throughout
	this
	period,
	Shaw
	indicated 	that
	he 	had
	general
discussions
	with 	Keith
	Hinrichsen,
	division
	chairman
	of 	the
social
	sciences
	division,
	and 	Dean
	Paige,
	director
	of 	the
extended
	day
	program,
	regarding
	part-time
	employee
	rights.
Shaw
	testified 	that 	his 	relationship
	with 	these
	two 	men 	was
cordial.
No
	testimony
	was
	presented 	indicating
	what
	organizational
activity, 	if
	any,
	Shaw 	engaged
	in 	during 	the 	spring 	of
	1977.
At
	the
	commencement
	of 	the 	spring
	1977
	semester,
Sherill
	Moses, 	then 	the
	political
	science 	department 	chairman,
was
	selected
	as 	acting 	division
	chairman 	of 	the 	social 	sciences
division, 	while 	Keith 	Hinrichsen,
	its
	permanent 	chairman,
	was
away 	on
	sabbatical.
2shaw 	was 	neither 	an 	officer 	nor 	a 	committee 	chairman 	of
CCFA. 4

Sherill Moses had been employed at Cerritos since 1963. 	He
was one of the founders of the American Association of
University Professors (AAUP) Chapter at Cerritos College. 	He
had served as its president. Moses was also a member of CCFA
and had been on its executive board for the past ten years.
While Moses believed that the faculty-administration/board
relationship was such that it was not a propitious time to
begin collective bargaining, Moses philosophically favored the
concept of collective bargaining. Tony Rodriguez, a witness
called in behalf of James Shaw, testified that he had heard
Moses speak out in favor of collective bargaining at a CCFA
meeting.
As acting division chairman, Moses was responsible for
scheduling classes in the division for the fall 1977 semester.
In early March, Annette Taylor, division clerk of the social
sciences division, contacted Shaw to determine his availability
and his preferences for next fall's schedule.
By early April, Shaw had become concerned as to his next
semester's assignment. 	He contacted Carol Driscoll, evening
secretary for the social sciences division, who told him that
he was tentatively scheduled for two clases for fall 1977.
As part of his duties as division chairman, Moses evaluated
many of the part-time instructors in the division.
3why this is so is a bit unclear. 	Shaw himself admitted
during testimony that ordinarily he would not receive
notification until mid-April.
Sherill
	Moses
	had
	been
	employed
	at
	Cerritos
	since
	1963.
	He
was
	one
	of
	the 	founders
	of
	the
	American
	Association 	of
University 	Professors
	(AAUP)
	Chapter
	at
	Cerritos
	College.
	He
had
	served
	as
	its
	president.
	Moses 	was
	also
	a 	member
	of
	CCFA
and 	had
	been
	on
	its
	executive
	board
	for 	the
	past
	ten
	years.
While
	Moses
	believed
	that
	the
	faculty-administration/board
relationship
	was
	such
	that
	it
	was
	not
	a
	propitious
	time
	to
begin
	collective
	bargaining,
	Moses
	philosophically
	favored 	the
concept
	of
	collective
	bargaining.
	Tony
	Rodriguez,
	a
	witness
called
	in
	behalf 	of
	James 	Shaw,
	testified
	that
	he 	had
	heard
Moses
	speak
	out
	in 	favor
	of
	collective
	bargaining
	at
	a
	CCFA
meeting.
As
	acting 	division
	chairman,
	Moses 	was
	responsible 	for
scheduling
	classes
	in 	the
	division
	for 	the
	fall
	1977
	semester.
In
	early
	March,
	Annette
	Taylor,
	division 	clerk
	of 	the
	social
sciences
	division,
	contacted
	Shaw
	to
	determine
	his
	availability
and
	his 	preferences 	for 	next
	fall's
	schedule.
By
	early 	April,
	Shaw 	had 	become
	concerned 	as
	to
	his
	next
semester's
	assignment.
3
He
	contacted 	Carol
	Driscoll,
	evening
secretary
	for 	the
	social 	sciences 	division,
	who
	told
	him
	that
he 	was
	tentatively
	scheduled 	for
	two
	clases
	for
	fall
	1977.
As
	part 	of 	his 	duties
	as
	division
	chairman,
	Moses
	evaluated
many
	of 	the 	part-time 	instructors
	in 	the 	division.
3why
	this 	is
	so
	is
	a
	bit 	unclear.
	Shaw
	himself 	admitted
during 	testimony 	that 	ordinarily
	he 	would 	not 	receive
notification 	until 	mid-April.
5

Some of the departments, such as history and political science,
had their own personnel to evaluate part-time instructors.
However, as to the others, Moses was left to evaluate them
unless he could obtain assistance from other full-time faculty.
Being somewhat unfamiliar with the psychology department,
Moses contacted Dr. Charles Cabeen, the chairman of the
department, to enlist his expertise in evaluating the part-time
psychology instructors." 	Dr. Cabeen agreed to evaluate a
couple of part-time instructors. Moses asked Cabeen about his
impressions of the part-time instructors. Many of the
instructors Cabeen knew well and assured Moses of their
competency. Cabeen was not so sure about Shaw and a
new teacher whose work Cabeen had not had an ample opportunity
to observe. Cabeen didn't know Shaw well and therefore could
not give any assurances regarding his competence.
On his part, Moses expressed some concern about Shaw. He
had heard from two instructors as well as random "hearsay"
comments that Shaw had a personality that some people found
hard to get along with. To allay this concern, Cabeen
testified, Moses felt that Shaw "should be given a fair
evaluation and that somebody else should look at him too."
Consequently, it was understood that both Moses and Cabeen
would evaluate Shaw.
4Moses testified that he did the same thing in the
sociology department.
Some
	of 	the 	departments,
	such 	as
	history
	and
	political
	science,
had
	their
	own
	personnel
	to 	evaluate
	part-time
	instructors.
However,
	as
	to
	the
	others,
	Moses 	was
	left
	to 	evaluate
	them
unless
	he
	could
	obtain
	assistance
	from
	other
	full-time 	faculty.
Being
	somewhat
	unfamiliar
	with
	the
	psychology
	department,
Moses
	contacted
	Dr.
	Charles
	Cabeen,
	the
	chairman
	of 	the
department,
	to
	enlist
	his 	expertise
	in 	evaluating
	the
	part-time
psychology
	instructors.
4
Dr. 	Cabeen
	agreed
	to 	evaluate
	a
couple 	of
	part-time
	instructors.
	Moses
	asked
	Cabeen
	about
	his
impressions 	of 	the
	part-time
	instructors.
	Many
	of 	the
instructors
	Cabeen
	knew
	well
	and
	assured
	Moses
	of
	their
competency.
	Cabeen 	was
	not
	so
	sure
	about
	Shaw 	and 	a
new
	teacher
	whose 	work 	Cabeen 	had
	not
	had 	an 	ample
	opportunity
to 	observe.
	Cabeen
	didn't
	know 	Shaw
	well
	and
	therefore
	could
not
	give
	any
	assurances 	regarding
	his
	competence.
On
	his
	part,
	Moses
	expressed
	some
	concern 	about
	Shaw.
	He
had
	heard
	from 	two
	instructors
	as 	well 	as
	random
	"hearsay"
comments
	that
	Shaw 	had 	a
	personality 	that
	some
	people
	found
hara 	to 	get 	along 	with.
	To
	allay 	this
	concern,
	Cabeen
testified,
	Moses
	felt
	that
	Shaw
	"should
	be
	given
	a
	fair
evaluation
	and
	that
	somebody
	else
	should 	look
	at
	him
	too."
Consequently,
	it
	was
	understood
	that
	both
	Moses 	and 	Cabeen
would
	evaluate
	Shaw.
4Moses
	testified 	that
	he
	did 	the
	same
	thing 	in 	the
sociology 	department.
6

On April 11, while on a break from his class, Shaw met with
Moses who requested an opportunity to evaluate him. 	Moses also
mentioned the possibility that because Dr. Cabeen would be on
sabbatical in the fall, a greater number of classes would be
available for Shaw to teach. After this brief discussion, the
class commenced and Moses proceeded to evaluate Shaw's teaching.
One week later (April 18) , Dr. Cabeen sought to evaluate
Shaw. Shaw testified that because he had been evaluated by
Moses one week earlier, he thought it was irregular for Cabeen
to also evaluate him. Shaw indicated that he "didn't like the
looks of it" and that "they were giving [him] a bad time over
at someplace else. " 	Shaw refused Cabeen permission to
evaluate him until Shaw had an opportunity to talk to Moses.
Shaw testified that when Cabeen told Shaw that Cabeen, as
department chairman, had inherent authority to evaluate him,
Shaw stated that he "didn't care if [Cabeen] was the department
chairman, the department chairman has no authority in these
matters. " Cabeen denied telling Shaw that he had the
unilateral authority to evaluate his class.
Cabeen thought Shaw reacted excessively defensive and
seemed like a very threatened person.
In his testimony, Cabeen indicated that although in this
instance Shaw was being treated differently--it was not unusual
for there to be an overlap; in prior semesters, both the
psychology department coordinators and the division chairman
would evaluate the same individual.
7
On 	April 	11, 	while 	on 	a 	break 	from 	his 	class, 	Shaw 	met 	with
Moses 	who 	requested 	an 	opportunity 	to 	evaluate 	him. 	Moses 	also
mentioned 	the 	possibility 	that 	because 	Dr. 	Cabeen 	would 	be 	on
sabbatical 	in 	the 	fall, 	a 	greater 	number 	of 	classes 	would 	be
available 	for 	Shaw 	to 	teach. 	After 	this 	brief 	discussion, 	the
class 	commenced 	and 	Moses 	proceeded 	to 	evaluate 	Shaw's 	teaching.
One 	week 	later 	{April 	18), 	Dr. 	Cabeen 	sought 	to 	evaluate
Shaw. 	Shaw 	testified 	that 	because 	he 	had 	been 	evaluated 	by
Moses 	one 	week 	earlier, 	he 	thought 	it 	was 	irregular 	for 	Cabeen
to 	also 	evaluate 	him. 	Shaw 	indicated 	that 	he 	"didn't 	like 	the
looks 	of 	it" 	and 	that 	"they 	were 	giving 	[him] 	a 	bad 	time 	over
at 	someplace 	else." 5 Shaw 	refused 	Cabeen 	permission 	to
evaluate 	him 	until 	Shaw 	had 	an 	opportunity 	to 	talk 	to 	Moses.
Shaw 	testified 	that 	when 	Cabeen 	told 	Shaw 	that 	Cabeen, 	as
department 	chairman, 	had 	inherent 	authority 	to 	evaluate 	him,
Shaw 	stated 	that 	he 	"didn't 	care 	if 	[Cabeen] 	was 	the 	department
chairman, 	the 	department 	chairman 	has 	no 	authority 	in 	these
matters." 	Cabeen 	denied 	telling 	Shaw 	that 	he 	had 	the
unilateral 	authority 	to 	evaluate 	his 	class.
Cabeen 	thought 	Shaw 	reacted 	excessively 	defensive 	and
seemed 	like 	a 	very 	threatened 	person.
5	5 In 	his 	testimony, 	Cabeen 	indicated 	that 	although 	in 	this
instance 	Shaw 	was 	being 	treated 	differently--it 	was 	not 	unusual
for 	there 	to 	be 	an 	overlap; 	in 	prior 	semesters, 	both 	the
psychology 	department 	coordinators 	and 	the 	division 	chairman
would 	evaluate 	the 	same 	individual.
7

The next day, Cabeen told Moses of his unsuccessful attempt
to evaluate Shaw.
Soon thereafter, Moses began his efforts to contact Shaw.
For a long time, he was unsuccessful. Moses had become
seriously concerned about Shaw's "suspicious and contentious"
attitude and thought a meeting might help to clear things up.
During the time period that Moses was trying to contact Shaw,
Moses conversed with Cabeen regarding Shaw. Asked where Shaw
would be ranked if Cabeen had to rank the part-time psychology
instructors, Cabeen placed him at the bottom. Asked whether
Cabeen would like Shaw as a (full-time) member of the
psychology department, Cabeen answered "no, " basing his opinion
on Shaw's "personality problem. "
When Moses finally did reach Shaw on the telephone, the two
could not agree on a mutually agreeable time. 	Shaw, because he
only worked on campus Monday and Thursday nights, sought a
meeting on a Monday or Thursday evening. Moses who worked
during the day, preferred a daytime meeting. While the two
finally agreed upon a meeting before one of Shaw's classes,
Moses was disturbed that Shaw should insist that the meeting be
held at a time suitable to Shaw. Moses testified that it was
not the insistence on the time that disturbed him but "the
manner in which he talked, the tone of his voice."
The
	next 	day,
	Cabeen
	told
	Moses
	of
	his
	unsuccessful 	attempt
to 	evaluate
	Shaw.
Soon
	thereafter,
	Moses
	began
	his
	efforts
	to 	contact
	Shaw.
For
	a
	long
	time,
	he
	was
	unsuccessful.
	Moses 	had 	become
seriously
	concerned 	about
	Shaw's
	"suspicious
	and
	contentious"
attitude
	and
	thought
	a
	meeting 	might
	help
	to
	clear
	things
	up.
During
	the
	time
	period
	that
	Moses
	was
	trying 	to 	contact
	Shaw,
Moses
	conversed 	with
	Cabeen
	regarding
	Shaw. 	Asked
	where
	Shaw
would 	be
	ranked
	if
	Cabeen 	had
	to
	rank
	the
	part-time
	psychology
instructors,
	Cabeen
	placed
	him
	at
	the
	bottom.
	Asked
	whether
Cabeen 	would
	like
	Shaw
	as
	a
	(full-time)
	member
	of 	the
psychology 	department,
	Cabeen
	answered
	"no," 	basing
	his
	opinion
on
	Shaw's
	"personality
	problem."
When
	Moses
	finally
	did 	reach
	Shaw
	on
	the 	telephone, 	the
	two
could 	not 	agree
	on
	a
	mutually 	agreeable 	time.
	Shaw,
	because
	he
only
	worked
	on
	campus
	Monday
	and
	Thursday
	nights,
	sought
	a
meeting
	on
	a 	Monday
	or 	Thursday
	evening.
	Moses
	who
	worked
during 	the 	day,
	preferred
	a
	daytime 	meeting.
	While
	the
	two
finally
	agreed
	upon
	a
	meeting
	before
	one
	of
	Shaw's
	classes,
Moses 	was
	disturbed 	that
	Shaw
	should
	insist 	that
	the 	meeting
	be
held
	at
	a
	time
	suitable
	to
	Shaw. 	Moses
	testified 	that
	it
	was
not 	the
	insistence
	on
	the 	time
	that 	disturbed
	him
	but 	"the
manner
	in
	which 	he
	talked, 	the 	tone 	of 	his 	voice."
8

The meeting between Shaw and Moses was held on May 12.6
Shaw's version of the meeting is as follows: The meeting began
shortly after 6:00 p.m. Moses told Shaw that Moses' evaluation
of him had disclosed that he was a good teacher. The two men
discussed a part-time tenure bill which Moses was for and Shaw
and CTA against. Moses told Shaw that his future employment
was in question because certain administrators were displeased
with Shaw's tactics in advocating part-timer issues. Shaw had
a militant attitude and administrators were fearful that Shaw
might receive tenure if he stayed longer. The "tactics" Shaw
used was the apparent placing of notices in faculty mailboxes
approximately one month earlier. Shaw denied this on the basis
that he had not done that for approximately three months. 	Shaw
was told that Dr. Cabeen had been asked to make a second
evaluation to allay the criticisms of these certain
administrators. 	Although Shaw's name was being deleted from
the Schedule of Classes, he would still be considered for
reemployment only after Moses "received certain data. " Moses
did not elaborate as to what that "certain data" was. Finally,
according to Shaw, the two agreed to a second meeting the
following Thursday at 6:00 p.m.
6The date of this initial meeting is disputed. Shaw
testified that it was Monday, May 16, while Moses insisted that
it was Thursday, May 12. Moses' version is the more credible.
Shaw seemed unclear when testifying as to dates. He stated
that approximately ten days after the April 18 incident with
Cabeen, he received a call from Ms. Driscoll, calling on behalf
of Mr. Moses to arrange a meeting between Moses and Shaw. 	Then
Shaw testified that after receiving the call from Ms. Driscoll,
he received a call from Moses on April 23 requesting a
meeting. Finally, on rebuttal Shaw testified that Moses first
called him on May 12. These inconsistencies lead me to believe
that the meeting took place on May 12.
The
	meeting
	between
	Shaw 	and 	Moses 	was
	held
	on
	May
	12.
6
Shaw's
	version 	of 	the
	meeting
	is
	as
	follows:
	The
	meeting
	began
shortly 	after
	6:00
	p.m.
	Moses
	told
	Shaw
	that
	Moses'
	evaluation
of
	him 	had
	disclosed
	that
	he 	was 	a 	good
	teacher.
	The 	two 	men
discussed
	a
	part-time
	tenure
	bill
	which
	Moses 	was
	for
	and
	Shaw
and
	CTA
	against.
	Moses
	told
	Shaw
	that 	his
	future
	employment
was
	in
	question
	because
	certain
	administrators
	were
	displeased
with
	Shaw's
	tactics
	in 	advocating
	part-timer 	issues.
	Shaw 	had
a
	militant 	attitude
	and
	administrators
	were
	fearful 	that
	Shaw
might
	receive 	tenure
	if
	he
	stayed
	longer.
	The
	"tactics"
	Shaw
used
	was
	the 	apparent 	placing 	of
	notices
	in
	faculty
	mailboxes
approximately
	one 	month
	earlier.
	Shaw
	denied
	this
	on
	the
	basis
that
	he 	had
	not
	done
	that
	for 	approximately
	three
	months.
	Shaw
was
	told 	that
	Dr. 	Cabeen 	had
	been 	asked
	to
	make 	a
	second
evaluation 	to
	allay
	the
	criticisms
	of 	these
	certain
administrators.
	Although 	Shaw's
	name 	was
	being
	deleted
	from
the
	Schedule
	of 	Classes,
	he 	would
	still
	be
	considered 	for
reemployment
	only
	after
	Moses
	"received
	certain 	data."
	Moses
did 	not
	elaborate
	as
	to
	what
	that 	"certain
	data"
	was.
	Finally
according 	to
	Shaw,
	the
	two
	agreed
	to
	a
	second 	meeting
	the
following 	Thursday
	at
	6:00 	p.m. 
,
6The
	date 	of
	this
	initial
	meeting
	is 	disputed.
	Shaw
testified 	that
	it
	was 	Monday, 	May
	16, 	while
	Moses
	insisted 	that
it
	was
	Thursday,
	May
	12. 	Moses'
	version 	is 	the
	more
	credible.
Shaw 	seemed
	unclear
	when
	testifying
	as 	to 	dates.
	He
	stated
that 	approximately 	ten 	days
	after 	the 	April
	18
	incident 	withCabeen, 	he
	received
	a
	call
	from 	Ms.
	Driscoll, 	calling
	on
	behalf
of
	Mr. 	Moses
	to 	arrange 	a meeting 	between 	Moses 	and 	Shaw. 	Then
Shaw
	testified 	that 	after 	receiving 	the 	call
	from 	Ms.
	Driscoll,
he 	received 	a
	call
	from 	Moses 	on 	April 	23 	requesting 	a
meeting. 	Finally, 	on 	rebuttal 	Shaw
	testified 	that 	Moses
	firstcalled 	him 	on 	May 	12. 	These 	inconsistencies 	lead 	me 	to 	believe
that 	the 	meeting 	took 	place 	on 	May 	12.
0

Moses' version of the May 12 meeting varies considerably at
times from Shaw's version. According to Moses, the meeting
began at 6:50 p.m., not 6:00 p.m. Moses testified that he told
Shaw that he was an adequate teacher but that being hired back
involved more than just teaching ability.
Moses alleges that he told Shaw that before he could
recommend him for retention he wanted to be sure that Shaw
"would be the kind of teacher that would be good for the
institution." 	Moses was "concerned about [Shaw's] being
contentious and suspicious and aggressive" in his dealings with
people and gave specific examples of his concern."
The scheduled May 19 meeting did not take place. 	Shaw
showed up one-half hour late and by then Moses had left for
another appointment.
On May 26, the next meeting between the two men was held.
This time, Shaw asked Tony Rodriguez, a speech instructor as
well as an officer in the CCFA, to join him.
The meeting scheduled for 6:00 p.m. began about 6:15 p.m. ,
because Shaw was late again.
According to Shaw's testimony, he asked Moses whether Moses
had taken Shaw's name off the Schedule of Classes because of
pressure from the administration. Moses replied that he had
done so alone, for the interests of the division. Moses then
allegedly told Shaw that if Shaw stayed another semester, Shaw
might acquire tenure and Moses was afraid of what Shaw might do.
T 	xamples include: Shaw's refusal to allow Cabeen
to evaluate him; his attitude towards Moses when Moses was
trying to set up a meeting; and at later meetings between the
two men, Shaw's behavior at their earlier meetings.
Moses'
	version
	of 	the
	May
	12
	meeting
	varies
	considerably
	at
times
	from
	Shaw's
	version.
	According
	to
	Moses,
	the
	meeting
began
	at
	6:50
	p.m.,
	not 	6:00
	p.m.
	Moses
	testified
	that
	he
	told
Shaw
	that
	he 	was 	an
	adequate
	teacher 	but
	that
	being
	hired
	back
involved
	more
	than
	just
	teaching
	ability.
Moses
	alleges 	that
	he
	told
	Shaw
	that
	before
	he
	could
recommend 	him
	for
	retention
	he
	wanted
	to
	be
	sure
	that
	Shaw
"would 	be
	the
	kind
	of
	teacher
	that
	would 	be 	good
	for 	the
institution."
	Moses 	was
	"concerned 	about
	[Shaw's]
	being
contentious
	and
	suspicious
	and
	aggressive" 	in
	his 	dealings
	with
people
	and
	gave
	specific
	examples
	of
	his
	concern.
7
The
	scheduled
	May
	19
	meeting
	did 	not 	take
	place.
	Shaw
showed 	up
	one-half
	hour
	late
	and 	by
	then
	Moses 	had
	left
	for
another 	appointment.
On 	May
	26,
	the 	next
	meeting 	between
	the
	two 	men 	was
	held.
This 	time,
	Shaw
	asked
	Tony
	Rodriguez,
	a
	speech
	instructor
	as
well 	as
	an
	officer
	in 	the
	CCFA,
	to 	join
	him.
The
	meeting 	scheduled 	for
	6:00 	p.m. 	began
	about 	6:15
	p.m.,
because
	Shaw 	was
	late
	again.
According
	to
	Shaw's
	testimony,
	he
	asked
	Moses
	whether
	Moses
had
	taken 	Shaw's
	name
	off
	the 	Schedule
	of 	Classes 	because
	of
pressure
	from
	the 	administration.
	Moses
	replied 	that
	he 	had
done 	so
	alone, 	for 	the
	interests 	of 	the 	division.
	Moses
	then
allegedly 	told
	Shaw
	that 	if
	Shaw
	stayed 	another 	semester,
	Shaw
might 	acquire 	tenure
	and 	Moses 	was
	afraid 	of
	what 	Shaw might 	do.
7These 	examples 	include: 	Shaw's 	refusal 	to 	allow 	Cabeen
to 	evaluate 	him; 	his 	attitude 	towards 	Moses 	when 	Moses 	was
trying 	to 	set 	up 	a 	meeting; 	and 	at 	later 	meetings 	between 	thetwo 	men, 	Shaw's 	behavior 	at 	their 	earlier 	meetings.
hese e

Shaw further testified that Moses told him that on the very
day Moses acquired tenure he formally created the American
Association of University Professors (AAUP) Chapter at Cerritos
and that "if he had known these facts, what would [Shaw] do!"
Moses purportedly reiterated that Shaw was a good teacher
but that "being goo
had to be a team player. " Moses continue
Mary Capdevielle as an example, stating that she was not hired
as a full-time employee "because some administrators did not
feel that she fit in. "8
Moses' version is that he told Shaw about his activities
with AAUP in order to "assure him that [Moses] was the last
person on campus to hold [Shaw's] faculty or his professional
activities against him. " Moses attempted to assure Shaw that
not only would his organizational activity not hurt but that if
anything, it would be a plus factor.
The testimony of Mr. Rodriguez more closely supports the
testimony of Mr. Moses rather than that of Mr. Shaw. According
to Rodriguez, during Moses' opening remarks Shaw interrupted
and stated "let's get right to the issue. . . are you or are
you not going to recommend me for employment?" Moses responded
by stating he hadn't made up his mind yet.
BNo elaboration of what "fit in" meant was given
according to Shaw's testimony, but he interpreted the phrase to
refer to Ms. Capdevielle's organizational activities.
1 1
Shaw
	further
	testified
	that
	Moses
	told
	him
	that
	on
	the
	very
day
	Moses
	acquired 	tenure
	he
	formally
	created
	the
	American
Association 	of
	University 	Professors
	(AAUP)
	Chapter
	at 	Cerritos
and
	that
	"if
	he 	had 	known
	these
	facts,
	what 	would 	[Shaw]
	do!"
Moses
	purportedly
	reiterated
	that
	Shaw 	was 	a 	good
	teacher
but
	that
	"being 	d in the classroom is not enough, that you	good
	in
	the 	classroom
	is
	not
	enough,
	that
	you
had
	to
	be 	a 	team
	player."
	Moses
	continued	d by apparently using	by
	apparently
	using
Mary
	Capdevielle
	as
	an
	example,
	stating 	that
	she
	was
	not
	hired
as
	a
	full-time
	employee
	"because
	some
	administrators
	did 	not
feel 	that
	she
	fit
	in."
8
Moses'
	version
	is 	that
	he
	told
	Shaw
	about
	his
	activities
with
	AAUP
	in 	order 	to 	"assure
	him
	that
	[Moses] 	was
	the
	last
person
	on 	campus
	to
	hold 	[Shaw's]
	faculty
	or
	his 	professional
activities
	against
	him."
	Moses
	attempted
	to 	assure
	Shaw
	that
not 	only
	would
	his 	organizational
	activity
	not
	hurt 	but
	that
	if
anything,
	it
	would 	be 	a
	plus
	factor.
The
	testimony 	of
	Mr.
	Rodriguez
	more
	closely
	supports 	the
testimony 	of
	Mr. 	Moses
	rather
	than
	that
	of
	Mr. 	Shaw.
	According
to
	Rodriguez, 	during
	Moses' 	opening 	remarks
	Shaw
	interrupted
and
	stated
	"let's
	get 	right
	to 	the 	issue
.••
	are
	you
	or 	are
you
	not 	going
	to
	recommend
	me
	for
	employment?" 	Moses
	responded
by
	stating
	he
	hadn't
	made 	up
	his
	mind
	yet.
BNo
	elaboration 	of
	what
	"fit
	in" 	meant 	was
	given
according 	to 	Shaw's 	testimony, 	but
	he
	interpreted 	the 	phrase 	to
refer 	to
	Ms.
	Capdevielle's 	organizational 	activities.
11

With regard to a discussion about Shaw's organizational
activity, Rodriguez quotes Moses as stating "whatever you're
doing and whatever kind of activities you're involved in are
not necessarily part of me making up my mind. " To further
reassure Shaw, Moses mentioned his involvement in the fight for
academic freedom and his efforts in behalf of the AAUP.
According to Rodriguez, Moses wasn't so concerned about
Shaw's teaching ability but with his ability to get along with
others and with his outspoken attitude."
The next meeting between Shaw and Moses was held June 2.
Again, Rodriguez was in attendance. The meeting was a short
one--Moses told Shaw that he would not recommend him for
reemployment. 10
After meeting with Moses, Shaw went to Dean Paige's office
to ask what Paige could do. Although nothing was official yet,
Paige told Shaw that in 99 times out of 100 he sided with the
division chairman and therefore Shaw should look elsewhere for
assistance.
9 	stified that he considers Shaw to be	Rodriguez te
outspoken. In characterizing someone who is abrasive,
Rodriguez stated that he would characterize that person as
outspoken.
des are in substantial agreement that if a
division chairman refuses to recommend an instructor for
reemployment, it is tantamount to a decision by the District
not to rehire.
12
Both si
With
	regard
	to
	a
	discussion
	about
	Shaw's
	organizational
activity,
	Rodriguez
	quotes
	Moses
	as
	stating
	"whatever
	you're
doing
	and
	whatever 	kind
	of
	activities
	you're
	involved
	in
	are
not
	necessarily 	part
	of
	me
	making
	up
	my
	mind."
	To
	further
reassure
	Shaw, 	Moses
	mentioned
	his
	involvement
	in 	the
	fight
	for
academic
	freedom
	and
	his
	efforts
	in
	behalf
	of 	the
	AAUP.
According
	to
	Rodriguez,
	Moses
	wasn't
	so 	concerned 	about
Shaw's
	teaching
	ability
	but 	with
	his
	ability
	to 	get
	along 	with
others
	and
	with
	his
	outspoken
	attitude.
9
The
	next 	meeting
	between
	Shaw 	and 	Moses 	was
	held 	June
	2.
Again, 	Rodriguez
	was
	in
	attendance.
	The
	meeting
	was 	a
	short
one--Moses
	told
	Shaw
	that
	he 	would
	not
	recommend 	him
	for
reemployment.
10
After
	meeting 	with
	Moses,
	Shaw 	went
	to
	Dean
	Paige's 	office
to
	ask
	what
	Paige 	could 	do. 	Although
	nothing
	was
	official
	yet,
Paige
	tola
	Shaw
	that
	in
	99
	times 	out 	of
	100 	he
	sided 	with 	the
division
	chairman
	and
	therefore
	Shaw
	should 	look 	elsewhere 	for
assistance.
9Rodriguez
	testified
	that
	he
	considers
	Shaw
	to
	be
outspoken. 	In
	characterizing
	someone 	who
	is 	abrasive,
Rodriguez
	stated 	that
	he 	would
	characterize 	that
	person 	as
outspoken.
10	lOBoth
	sides 	are 	in
	substantial
	agreement
	that
	if
	a
division
	chairman
	refuses 	to
	recommend 	an
	instructor 	forreemployment,
	it
	is
	tantamount 	to
	a
	decision
	by
	the
	District
not 	to 	rehire.
12

During the summer Shaw wrote to Dr. John Randall,
vice-president of instruction, requesting that he be
reinstated. After Randall left for another job, Shaw
corresponded with Dr. Wilford Michael, district superintendent,
who finally stated to Shaw on September 2, 1977, that he would
not be reemployed for the fall 1977 semester. If
Significantly, the letters from Shaw to the District
administrators make no mention of Shaw's organizational
activity but rather of his tenure rights. In fact, Shaw
admitted during cross-examination that the letters (to and from
Shaw) did not mention directly Shaw's organizational
activity . 12
It is now appropriate to assess the factual makeup of this
case. Basically, there are two versions: Shaw argues that
Moses refused to rehire him because of Shaw's organizational
activity; Moses counters by arguing that Shaw's organizational
activities were not in issue but rather his personality and
attitude towards others.
1lwhile a division chairman's refusal to recommend a
part-time instructor for continued employment is practically
speaking a refusal to rehire, notification to a part-time
employee that he has been employed for the ensuing school year
can be made anytime up to the start of the semester.
Indeed, Shaw's testimony that Dr. Randall wrote to him
that Randall had "no knowledge. 	whether certain
administrators were displeased with the tactics [Shaw] used in
advocating for the rights of the part-time instructors at
Cerritos College" is not substantiated by the letters
themselves. The letters make no mention of Shaw's advocacy of
part-timer rights.
13
During
	the
	summer 	Shaw
	wrote
	to
	Dr. 	John
	Randall,
vice-president
	of
	instruction,
	requesting
	that
	he
	be
reinstated.
	After
	Randall
	left
	for 	another
	job,
	Shaw
corresponded 	with
	Dr.
	Wilford 	Michael,
	district
	superintendent,
who
	finally
	stated
	to
	Shaw 	on
	September
	2,
	1977,
	that
	he 	would
not
	be 	reemployed
	for 	the
	fall
	1977
	semester.
11
Significantly,
	the
	letters
	from 	Shaw
	to
	the
	District
administrators
	make 	no
	mention
	of
	Shaw's
	organizational
activity
	but
	rather
	of
	his
	tenure
	rights.
	In
	fact,
	Shaw
admitted 	auring 	cross-examination
	that
	the
	letters
	(to
	and 	from
Shaw)
	did
	not 	mention
	directly
	Shaw's
	organizational
activity.
12
It
	is
	now
	appropriate 	to 	assess
	the
	factual
	makeup
	of
	this
case. 	Basically, 	there 	are
	two
	versions:
	Shaw
	argues
	that
Moses
	refused 	to
	rehire
	him
	because
	of
	Shaw's
	organizational
activity;
	Moses
	counters
	by
	arguing
	that
	Shaw's
	organizational
activities
	were
	not 	in
	issue
	but
	rather 	his 	personality
attitude
	towards
	others.
and
while
	a
	division 	chairman's
	refusal 	to
	recommend 	a
part-time 	instructor
	for 	continued
	employment
	is 	practically
speaking
	a
	refusal 	to
	rehire, 	notification 	to
	a
	part-time
employee
	that
	he
	has 	been 	employed
	for 	the 	ensuing 	school 	yearcan 	be 	made
	anytime
	up
	to 	the
	start
	of 	the 	semester.
ll
1 212
Indeed, 	Shaw's 	testimony
	that
	Dr.
	Randall 	wrote
	to
	him
that
	Randall
	had 	"no 	knowledge
•••
	whether
	certainadministrators
	were
	displeased 	with 	the
	tactics
	[Shaw)
	used 	in
advocating 	for 	the 	rights 	of 	the 	part-time 	instructors 	atCerritos 	College"
	is
	not 	substantiated
	by
	the
	letters
themselves.
	The
	letters
	make 	no 	mention 	of 	Shaw's 	advocacy 	of
part-timer 	rights.
13

Based upon an examination of the testimony given and the
documents presented into evidence, it is concluded that the
version of the facts given by Sherill Moses is the more
credible one. Mr. Moses generally gave reliable and consistent
testimony. His testimony was often supported by testimony
given by witnesses, Cabeen and Rodriguez. Although Moses did
not favor the immediate implementation of collective bargaining
at Cerritos, there is no evidence that he was hostile to such
efforts by Shaw or anyone else.
Shaw's testimony, on the other hand, was not as credible as
that of Moses. At times, his testimony was vague, inconsistent
or marked by editorializing. He admitted that his letters to
Dr. Randall and Dr. Michael do not contain references to his
organizational activity. But he also argued that Dr. Randall
wrote to him discussing his tactics in advocating part-timer
rights when in fact the letters make no mention of that
subject. Shaw seemed confused as to the date of his first
conversation with Moses following Cabeen's aborted attempt to
evaluate him. In addition, he incorrectly identified the
District switchboard operator as the wife of an administrator,
when in fact no wife of an administrator worked in such a
capacity.
For the above reasons, it is concluded that James Shaw was
not retained as a part-time instructor because Sherill Moses
thought that Shaw's suspicious, contentious and aggressive
behavior prevented him from getting along with others.
14
Based
	upon 	an
	examination
	of 	the 	testimony 	given
	and
	the
documents
	presented
	into
	evidence,
	it
	is
	concluded
	that
	the
version
	of 	the
	facts
	given
	by
	Sherill
	Moses
	is
	the
	more
credible
	one.
	Mr. 	Moses
	generally
	gave
	reliable
	and
	consistent
testimony.
	His
	testimony
	was
	often
	supported
	by
	testimony
given
	by
	witnesses,
	Cabeen
	and
	Rodriguez.
	Although
	Moses
	did
not 	favor 	the
	immediate
	implementation
	of
	collective
	bargaining
at 	Cerritos,
	there
	is
	no
	evidence
	that
	he 	was
	hostile
	to
	such
efforts
	by 	Shaw
	or
	anyone
	else.
Shaw's
	testimony,
	on
	the
	other
	hand,
	was
	not 	as
	credible
	as
that
	of
	Moses. 	At
	times,
	his
	testimony
	was
	vague,
	inconsistent
or
	marked 	by
	editorializing.
	He
	admitted
	that
	his
	letters
	to
Dr.
	Randall
	and
	Dr.
	Michael
	do
	not
	contain 	references 	to 	his
organizational
	activity.
	But
	he
	also
	argued
	that
	Dr.
	Randall
wrote
	to
	him
	discussing
	his 	tactics
	in
	advocating
	part-timer
rights
	when
	in
	fact
	the
	letters
	make 	no
	mention
	of
	that
subject.
	Shaw 	seemed
	confused 	as
	to 	the 	date 	of
	his
	first
conversation
	with
	Moses
	following 	Cabeen's 	aborted 	attempt 	to
evaluate
	him.
	In
	addition,
	he
	incorrectly 	identified 	the
District
	switchboard 	operator
	as 	the 	wife 	of
	an
	administrator,
when
	in
	fact
	no
	wife
	of
	an
	administrator
	worked
	in
	such
	a
capacity.
For 	the
	above
	reasons,
	it
	is
	concluded
	that
	James 	Shaw 	was
not 	retained 	as
	a
	part-time 	instructor
	because
	Sherill
	Moses
thought 	that
	Shaw's
	suspicious, 	contentious
	and
	aggressive
behavior 	prevented
	him 	from
	getting 	along 	with 	others.
14

CONCLUSIONS OF LAW
Having determined that Shaw was not retained because of his
suspicious, contentious and aggressive behavior, it must next
be determined whether non-retention for these reasons
constitutes an unfair practice under section 3543.5 (a) .
Section 3543.5 (a) provides that it shall be unlawful for a
public school employer to:
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.
[ Emphasis added. ]
Significantly, the section provides that the interference,
coercion, discrimination or other specified conduct must be
done because of an employee's exercise of a right guaranteed by
the EERA. San Diegueto Union High School District (9/2/77)
EERB Decision No. 22.
Charging Parties have failed to show that Mr. 	s
organizational activities were in any part responsible for his
13
discharge. 	Shaw's organizational activity primarily ended
Charging Parties' argument that the natural and probable
consequence test applies is not persuasive where, as here, the
issue is the isolated discharge of a single employee. "Other-
wise, the discharge of any employee who participates in union
affairs might violate (sec. 3543.5(a) ) regardless of whether
the employer's motives were entirely proper." Western Exterminator
Co. V. NLRB (9th Cir. 1977) 565 F. 2d 1114 [97 LRRM 2187, 2190
2]. In any event, the natural and probable consequence of
an employee being discharged because of a personality conflict
with his supervisor does not inherently chill other employees in
engaging in organizational activities.
15
CONCLUSIONS
	OF
	LAW
Having
	determined
	that
	Shaw 	was
	not
	retained
	because
	of 	his
suspicious,
	contentious
	and
	aggressive 	behavior,
	it
	must
	next
be
	determined
	whether
	non-retention
	for 	these 	reasons
constitutes
	an
	unfair
	practice
	under
	section
	3543.S(a).
Section
	3543.S(a)
	provides
	that
	it
	shall
	be
	unlawful
	for
	a
public
	school
	employer
	to:
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.
[Emphasis
	added.]
Significantly,
	the
	section
	provides
	that
	the
	interference,
coercion,
	discrimination
	or
	other 	specified
	conduct 	must 	be
done
	because
	of
	an
	employee's
	exercise 	of
	a
	right
	guaranteed
	by
the
	EERA.
	San
	Dieguito
	Union 	High 	School
	District
	(9/2/77)
EERB
	Decision
	No.
	22.
Charging
	Parties
	have
	failed
	to
	show
	that
	Mr.
	Shaw's
organizational
	activities
	were
	in
	any
	part 	responsible 	for 	his
discharge.
13
Shaw's
	organizational
	activity
	primarily
	ended
Shaw'
13
Charging
	Parties'
	argument
	that
	the
	natural
	and
	probableconsequence
	test
	applies
	is
	not 	persuasive
	where, 	as
	here, 	the
issue
	is
	the
	isolated
	discharge 	of
	a
	single
	employee.
	"Other-
wise, 	the 	discharge 	of
	any 	employee who
	participates 	in 	union
affairs
	might
	violate
	(sec. 	3543.5(a)) 	regardless 	of whether
the 	employer's 	motives 	were
	entirely 	proper."
	Western Exterminator
Co.
	v.
	NLRB
	(9th 	Cir.
	1977) 	565
	F.2d
	1114 	[97
	LRRM
	2187, 	2190
fn.	
2]. 	In
	any
	event, 	the 	natural
	and
	probable 	consequence 	of
an 	employee
	being 	discharged 	because 	of
	a
	personality 	conflictwith 	his 	supervisor 	does 	not 	inherently 	chill
	other
	employees
	inengaging 	in 	organizational 	activities.
rn.
15

during the fall 1976 semester. Mr. Moses, who the Charging
Parties allege is responsible for Shaw's non-retention, did not
consider Shaw's organizational activity in making his determin-
ation. In fact, there is evidence that Shaw's organizational
activity was a plus factor, if anything, when considering
whether Shaw should be retained.
Rather, the evidence indicates that Shaw was not retained
as a part-time instructor because of a personality conflict
he had with Moses. Non-retention because of a personality
conflict, however regrettable or seemingly unjustified, does
not constitute a violation of the EERA. The charges filed by
CTA and James Shaw against the District are therefore dismissed.
16
during 	the
	fall
	1976
	semester.
	Mr.
	Moses,
	who
	the
	Charging
Parties 	allege
	is
	responsible 	for
	Shaw's
	non-retention,
	did 	not
consider
	Shaw's
	organizational
	activity
	in
	making
	his	
determin-
ation.	
In
	fact,
	there
	is
	evidence
	that
	Shaw's
	organizational
activity
	was 	a
	plus
	factor,
	if
	anything,
	when
	considering
whether
	Shaw
	should
	be
	retained.
Rather, 	the
	evidence
	indicates
	that
	Shaw was
	not
	retained
as
	a
	part-time
	instructor
	because
	of
	a
	personality
	conflict
he 	had
	with
	Moses.
	Non-retention
	because
	of
	a
	personality
conflict,
	however
	regrettable
	or
	seemingly
	unjustified,
	does
not
	constitute
	a
	violation
	of
	the
	EERA.
	The
	charges
	filed
	by
CTA
	and 	James 	Shaw
	against 	the
	District
	are 	therefore
	dismissed.
16

PROPOSED ORDER
The District has not violated section 3543.5(a).
The unfair practice charges filed by the California
Teachers Association (Case No. LA-CE-205) and James Shaw (Case
No. LA-CE-206) are hereby DISMISSED.
Pursuant to California Administrative Code, title 8, part
III, section 32305, this Proposed Decision and Order shall
become final on October October 18, 1978 unless a party files a
timely statement of exceptions and supporting brief within
twenty (20) calendar days following the date of service of this
decision. Such statement of exceptions and supporting brief
must be actually received by the executive assistant to the
Board at the headquarters office in Sacramento before the close
of business (5:00 p.m. ) on 	October 18, 1978 	in order to be
timely filed. See California Administrative Code, title 8,
part III, section 32135. Any statement of exceptions and
supporting brief must be served concurrently with its filing
upon each party to this proceeding. Proof of service shall be
filed with the Board itself. See California Administrative
Code, title 8, part III, sections 32300 and 32305, as amended.
Dated:
	Septa:nber 28, 	1978
Bruce Barsook
Hearing Officer
17
PROPOSED
	ORDER
The
	District
	has
	not
	violated 	section
	3543.5(a).
The
	unfair
	practice
	charges
	filed
	by
	the
	California
Teachers
	Association
	(Case
	No. 	LA-CE-205) 	and
	James
	Shaw
	(Case
No. 	LA-CE-206)
	are
	hereby
	DISMISSED.
Pursuant
	to
	California
	Administrative
	Code,
	title
	8,
	part
III,
	section
	32305,
	this
	Proposed
	Decision
	and
	Order
	shall
become
	final
	on October 	October 18, 	1978
	unless
	a
	party
	files
	a
timely 	statement 	of 	exceptions
	and
	supporting
	brief
	within
twenty
	(20)
	calendar
	days
	following 	the 	date 	of
	service 	of
	this
decision.
	Such
	statement 	of 	exceptions
	and
	supporting
	brief
must
	be
	actually
	received
	by
	the 	executive
	assistant
	to 	the
Board
	at
	the 	headquarters
	office
	in
	Sacramento
	before 	the 	close
of 	business
	(5:00 	p.m.)
	on 	October 18, 1978
	in 	order 	to
	be
timely
	filed.
	See
	California
	Administrative
	Code,
	title
	8,
part
	III,
	section
	32135.
	Any
	statement 	of 	exceptions
	and
supporting
	brief
	must 	be
	served
	concurrently
	with
	its
	filing
upon
	each
	party 	to
	this
	proceeding. 	Proof 	of 	service
	shall
	be
filed
	with 	the
	Board
	itself.
	See
	California 	Administrative
Code,
	title
	8,
	part
	III,
	sections
	32300 	and 	32305, 	as 	amended.
Dated: September 28, 1978
17
Bruce Barsook
Hearing Officer