Rio Hondo Community College District (PERB 0272E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RIO 	HONDO FACULTY ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
RIO 	HONDO COMMUNITY COLLEGE 	DISTRICT,
Respondent.
Case 	No. 	LA-CE-1101
PERB Decision No. 	272
December 28, 	1982
Appearances: 	Charles R. 	Gustafson, 	Attorney 	for 	Rio Hondo
Faculty Association, 	CTA/NEA.
Before Tovar, 	Morgenstern and Jensen, 	Members.
DECISION
TOVAR, 	Member: 	The Rio Hondo Faculty Association, 	CTA/NEA
(Association) 	has 	filed 	exceptions 	to 	the 	attached proposed
decision 	of 	the 	hearing 	officer 	which 	dismisses 	the
Association's 	charge 	that 	the 	Rio 	Hondo 	Community 	College
District 	(District) 	violated subsections 3543.5(a), 	(b) 	and 	(c)
of 	the 	Educational Employment 	Relations 	Act 	(EERA or 	Act).l
1The 	EERA 	is 	codified at Government 	Code 	section 3540, 	et
seq. 	All 	statutory 	references herein are 	to 	the Government
Code 	unless otherwise 	noted.
Section 	3543.5 	in pertinent part provides:
It 	shall 	be unlawful for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
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The 	Association's 	charge 	is 	based 	on 	allegations 	that 	the
District 	violated 	one 	or 	more 	of 	the 	above-noted 	unfair
practice 	subsections by: 	(1) 	reducing 	the workyear 	of 	employee
Vince Furriel from 11.5 months to 10 months; 	(2) 	refusing 	to
participate 	in 	a 	grievance 	proceeding 	invoked 	by 	Furriel 	and
Tom Dickson; 	(3) 	proposing 	changes 	in 	the 	teaching 	schedules of
Furriel, 	Steve Collins and Dan Guerrero; 	(4) 	relocating
Furriel's office; 	and 	(5) 	refusing 	to meet with 	Furriel,
Collins 	and Guerrero 	in 	the 	presence 	of 	an Association
representative.
The 	Public Employment 	Relations 	Board 	(PERB or 	Board) 	has
reviewed 	the 	proposed 	decision 	and 	the 	entire 	record 	in 	light
of 	the 	Association's 	exceptions 	to 	the 	dismissal of 	these
charges. 	For 	the 	reasons which 	follow, 	we 	affirm 	the hearing
officer's proposed 	dismissal of 	the 	first 	four 	charges
enumerated 	above. 	With 	respect 	to 	the 	Association's 	charge
that 	the 	District 	violated 	the 	EERA by 	refusing 	to meet 	with
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.
N
• 	• 	• 	• 	• 	• 	•
2

three 	employees 	in 	the 	presence 	of 	their 	Association
representative, 	we 	reverse 	the 	hearing 	officer 	and 	find 	that
the District violated 	subsections 	3543.5(a) 	and 	(b) 	by 	that
refusal.
We 	find 	the 	hearing 	officer's 	statement of 	facts 	to 	be 	free
of prejudicial error 	and 	therefore 	adopt 	those 	findings,
together 	with 	additional 	factual determinations 	reached 	herein,
as 	the 	findings 	of 	the Board 	itself.
DISCUSSION
The 	Charges 	of 	Employer 	Reprisal
The 	Association 	excepts 	initially 	to 	the 	hearing 	officer's
finding 	that 	the 	District's 	decision 	to 	reduce 	Furriel's 	work
year 	was 	unconnected 	with 	protected 	activity on 	Furriel's 	part.
In 	Novato Unified 	School 	District 	(4/30/82) 	PERB Decision
No. 	210, 	the Board 	set forth 	a test by which charges of
discrimination are 	to be 	resolved. 	To establish 	a prima 	facie
case 	under 	that 	test, 	the charging 	party must make 	a showing
sufficient 	to 	raise 	the 	inference 	that 	employee 	activity
protected 	by 	the 	EERA was 	a motivating 	factor 	in 	the 	employer's
decision 	to 	take 	the complained-of 	action. 	If 	the charging
party makes 	such 	a showing, 	the 	burden 	shifts 	to 	the 	respondent
to demonstrate 	that 	it would 	have 	acted 	as 	it 	did 	regardless 	of
the 	employee's protected 	conduct.
Here, 	because 	the 	record 	shows 	that 	the 	District's 	decision
to 	reduce 	Furriel's 	work 	year 	was 	made 	prior 	to 	Furriel's
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allegedly protected 	activity, 	it 	is 	apparent 	that 	the
identified 	activity 	could 	not 	have 	been 	a motivating 	factor 	in
the 	District's 	decision. 	We 	therefore 	affirm 	the hearing
officer's proposed 	dismissal of 	this 	charge.
The 	Association 	has 	also 	excepted 	to 	the hearing 	officer's
dismissal of 	its 	charge 	that 	the 	District 	engaged 	in 	an
unlawful 	reprisal 	by 	failing 	to participate 	in 	the 	grievance
proceeding 	initiated 	by 	Furriel and 	Dickson. 	The 	Association
has 	failed, 	however, 	to 	identify any 	basis 	for 	concluding 	that
the 	hearing 	officer 	committed 	error 	in 	finding 	that 	the
District did 	in 	fact participate 	in 	the 	grievance 	proceeding.
We 	therefore 	summarily 	affirm 	the 	hearing 	officer's 	proposed
dismissal 	of 	this 	charge.2
The 	Association's 	third 	exception 	is 	to 	the 	proposed
dismissal 	of 	the 	charge 	that 	the 	District 	threatened 	to 	alter
the 	teaching 	assignments 	of 	three 	employees 	in 	reprisal 	for
their 	exercise 	of protected 	rights. 	In 	support of 	this
exception, 	the Association points 	to evidence 	that 	the
District's 	proposal 	to 	change 	teaching 	assignments 	was 	directed
2In affirming 	the 	dismissal 	of 	the 	Association's 	charge
that 	the 	District violated 	the 	EERA by 	its conduct 	in
connection with 	the grievance proceeding, 	however, 	we disavow
the 	hearing 	officer's 	interpretation of 	section 	3543 	set 	forth
in 	the proposed decision at 	the 	last paragraph 	beginning 	on
p. 	18 	and continuing at 	the 	top of p. 	19. 	We disagree 	that
"[t]he primary 	intent of 	the 	section 	is 	to prevent 	the
interference 	of 	exclusive 	representatives 	in 	individual
grievances," 	as 	the hearing officer 	states.
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only at 	the 	three 	employees 	who 	had 	prosecuted 	a 	grievance
against 	the 	District 	and who 	had 	an 	acknowledged 	history 	of
activity on 	behalf 	of 	employee 	interests 	which 	the 	Association
alleges were protected 	by 	the Act. 	Based on 	this 	evidence, 	we
find 	that 	the 	Association has 	made 	out 	a prima 	facie case 	of
unlawful District 	reprisal under 	the 	Novato 	test.
The hearing officer, 	however, 	found as a matter 	of 	fact
that 	the 	District's proposal of 	schedule 	changes was 	justified
by 	criteria 	wholly 	unrelated 	to 	the 	employees' 	protected
activity. 	We conclude, 	therefore, 	that 	the District would have
acted 	as 	it 	did 	even 	in 	the 	absence 	of prior 	protected 	activity
on the part of 	the 	three employees 	and, 	on 	that basis, 	affirm
the dismissal of 	the allegation.
The 	Association's 	final exception pertaining 	to 	the
proposed 	dismissal of 	its 	charges 	of 	employer 	reprisal 	is 	that
the 	hearing 	officer 	erred 	in 	finding 	that 	the 	relocation of
Furriel's 	office 	was 	not 	an 	act of 	reprisal 	and 	in dismissing
the charge 	on 	that basis. 	The 	circumstantial evidence
presented 	by 	the 	Association 	in 	support 	of 	its 	allegation 	is
again 	sufficient 	to establish 	a prima 	facie 	case 	of 	reprisal
under 	Novato. 	Here 	too, 	however, 	the hearing officer's
finding, 	which we 	affirm, 	was 	that 	the District's 	action was
justified 	by 	criteria wholly 	unrelated 	to 	Furriel's 	protected
activity. 	We conclude, 	therefore, 	that 	the District would have
acted 	as 	it 	did 	even 	in 	the 	absence 	of prior 	protected 	activity
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on 	the 	part of 	Furriel, 	and 	affirm 	the dismissal of 	the
allegation on 	that 	basis.
Denial 	of 	Representational 	Rights
As 	noted 	in 	the 	hearing 	officer's 	findings of 	fact, 	the
District makes 	available 	to 	its 	faculty 	an 	in-house 	grievance
procedure which 	is 	set 	forth 	at College Procedure No. 	5005.
That 	procedure 	provides 	that 	the 	aggrieved 	faculty 	member 	shall
initially make 	an effort 	to meet 	and 	resolve 	the matter 	on 	the
basis 	of 	informal 	discussion.3
In the 	instant case 	employees 	Furriel, 	Collins 	and 	Guerrero
were 	aggrieved 	by 	the 	District's 	proposal 	to alter 	their 	work
3college Procedure No. 	5005 provides 	in relevant part:
PROCEDURE
1. 	Preliminary Action
A. 	The 	faculty 	member 	shall 	first
attempt 	to 	resolve 	his/her 	grievance
by 	informal discussion 	with 	the
person or 	group directly 	involved 	in
the matter.
B. 	If 	the 	faculty member 	still 	believes
the 	issue 	has 	not 	been 	resolved
satisfactorily, 	he/she may 	submit 	a
written 	statement 	to 	the 	Academic
Senate 	specifying 	the 	time, 	place
and 	nature 	of his/her 	grievance, 	and
a 	representation 	as 	to what
transpired, 	the results, 	adverse
effect 	and 	any 	recommendations 	made
after 	complying 	with 	paragraph 	1A
immediately above. 	The 	Senate 	shall
make arrangements 	for 	a 	formal
hearing 	of 	the 	grievance.
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schedules 	and 	therefore 	sought 	a 	meeting 	with 	Assistant
Superintendent 	Don Jenkins pursuant 	to 	the 	District's grievance
procedure 	in order 	to attempt 	a 	resolution of 	the 	matter
through 	the 	prescribed 	informal discussion. 	Furriel 	testified
that he 	telephoned 	Jenkins 	regarding 	the 	proposal 	to 	alter 	work
schedules 	and 	that 	they 	discussed 	whether 	the 	issue 	could 	be
resolved via 	informal procedures 	or 	whether 	a 	formal hearing
would 	be necessary. 	They agreed, 	explained Furriel, 	to meet
and 	attempt 	resolution 	of 	the 	matter 	short of 	formal
proceedings.
In 	attempting 	to 	resolve 	their 	grievances 	"by 	informal
discussion with 	the person 	. 	. 	. 	directly 	involved 	in the
matter," as prescribed by College Procedure No. 	5005, 	the 	three
employees 	sought 	the 	representation of 	their 	employee
organization. 	The District, 	however, 	refused to participate 	in
the 	prescribed 	informal discussion 	unless 	the 	employees 	agreed
to participate 	in 	those 	discussions without 	the 	representation
of 	their 	employee 	organization.
The 	Association 	has 	charged 	that 	the 	District's 	refusal 	to
permit 	the 	attendance 	of 	the 	Association's 	representative 	at
those 	employer-employee 	discussions was 	a denial of 	the
employee's 	right, 	as 	set 	forth at 	section 3543 of 	the EERA, 	to
be 	represented 	in 	their 	employment 	relations, 	and was
concurrently a 	denial of 	the 	Association's 	right, 	as 	set 	forth
JJ	
1

at 	subsection 3543.l(a), 	to represent 	its members 	in 	their
employment 	relations.
The 	hearing 	officer 	correctly 	found 	that 	the 	meeting 	at
issue here 	was 	not 	an 	investigatory 	interview 	which 	might
reasonably result 	in disciplinary action, 	so as 	to bring 	it
within 	the 	rule of NLRB v. Weingarten, 	Inc. 	(1975) 	420 U.S. 	251
[88 LRRM 2689]. 	Nonetheless, 	he thereafter 	erroneously relied
on Weingarten 	to 	conclude 	that 	no 	right 	to 	representation
existed, 	ignoring 	the 	independent 	right 	to 	representation 	in
grievance proceedings, 	discussed herein.
Section 3543 provides, 	in relevant part, 	that:
Public 	school 	employees 	shall have 	the 	right
to form, 	join, 	and participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation on 	all 	matters 	of
employer-employee 	relations.
Subsection 3543.1(a) 	provides, 	in relevant part, 	that:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	. . . .
In Mount Diablo Unified School District, et al. 	(12/30/77),
EERB Decision No. 	44,4 	the Board 	addressed 	the
representational 	rights 	of 	employee 	organizations 	and 	concluded
that 	the Act guarantees 	such 	a right, 	stating:
4prior 	to January 	1, 	1978, 	PERB was 	known as the
Educational 	Employment 	Relations 	Board.
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Section 	3543.1(a) 	confers on an 	employee
organization 	the 	right 	to 	represent 	its
members in a grievance proceeding. 	. 	. 	.5
Additional 	rationale 	in 	support 	of 	that 	finding 	is 	articulated
in Chaffey Joint Union High School District 	(3/26/82) , 	PERB
Decision No. 	202.
Mount Diablo and Chaffey, 	supra, 	addressed only 	the
representational 	rights 	of 	employee 	organizations 	as 	embodied
in subsection 3543.l(a). 	We find it apparent, 	however, 	that
the 	Act 	concurrently 	protects 	the 	right 	of 	employees 	themselves
to 	be 	represented 	by 	their 	employee 	organization 	in 	grievance
proceedings, 	pursuant 	to 	section 3543's guarantee 	of 	the 	right
to 	". 	. 	. participate in the activities of employee
organizations 	of 	their 	own 	choosing 	for 	the purpose 	of
representation on all matters 	of 	employer-employee 	relations."
This 	conclusion 	is 	based 	upon 	the 	concept 	of 	collective
representation, 	which 	is 	at 	the 	heart of 	the EERA6 	and which
5The 	Board 	noted 	in 	Mount 	Diablo 	that 	while
subsection 	3543.1(a) 	generally 	guarantees 	to all 	employee
organizations 	the 	right 	to represent 	its 	members 	in grievance
proceedings, 	the Act's 	system of 	exclusive 	representation
requires 	that, 	where 	employees 	have 	selected 	an 	exclusive
representative 	for 	their 	unit, 	only 	that organization and 	no
other 	may 	represent 	unit 	members 	in 	such 	proceedings.
6section 3540, 	which 	sets 	forth 	the purpose of 	the EERA,
provides 	in part as 	follows:
It 	is 	the purpose of 	this 	chapter 	to promote
the 	improvement 	of personnel 	management 	and
employer-employee 	relations 	within 	the
public 	school 	systems 	in 	the 	State of
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acknowledges 	a 	right of 	employees 	to 	join 	together 	in an
organization which 	may 	serve 	as 	the 	vehicle 	by which 	they
assert 	their 	interests 	in 	their 	employment 	relationship with
their 	public 	school employer. 	It 	is 	the nature of grievance
resolution 	that 	the 	manner 	in 	which 	a single 	employee's
grievance 	is 	resolved may 	serve 	as 	a model 	to be 	followed
should 	another 	employee 	raise 	the 	same 	issue 	in 	the 	future.
Thus, 	while 	the 	immediate 	impact of a grievance 	resolution may
affect only 	the 	single 	employee directly 	involved, 	the
resolution 	is 	nevertheless 	a matter 	of collective 	concern 	for
the 	individual's 	fellow 	employees.
It 	is 	apparent 	that 	the 	Legislature 	intended 	that 	the 	right
to 	representation 	in grievance proceedings 	be protected. 	Thus,
not only did 	the 	Legislature 	enact 	the 	general guarantees 	set
forth at 	section 3543 and subsection 3543.l(a), 	but 	it
provided, 	at subsection 3543.l(c), 	that 	"A reasonable number of
representatives 	of 	an 	exclusive 	representative 	shall have 	the
right to receive reasonable periods of released time 	. 	. 	. 	for
California 	by 	providing 	a 	uniform basis 	for
recognizing 	the 	right 	of public 	school
employees 	to 	join organizations 	of 	their 	own
choice, 	to be 	represented 	by 	such
organizations 	in 	their 	professional and
employment 	relationships 	with 	public 	school
employers, 	to select one employee
organization 	as 	the 	exclusive 	representative
of the employees 	in an appropriate 	unit, 	and
to 	afford certificated 	employees 	a 	voice 	in
the formulation of educational policy. 	. 	. 	.
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the 	processing 	of 	grievances." 	We 	note 	in 	this 	regard 	that 	the
Association 	is 	the 	exclusive 	representative of 	the 	District's
certificated 	employees.
We conclude 	that, 	by 	refusing 	to permit 	the Association 	to
represent members 	Furriel, 	Collins 	and Guerrero 	in 	the
grievance 	resolution process, 	the 	District denied 	those
employees 	their 	right 	set 	forth 	at 	section 	3543 	to
representation on a matter 	of employer-employee 	relations 	and,
concurrently, 	denied 	the 	Association 	its 	right 	set 	forth 	at
subsection 3543.1(a) 	to represent 	its 	members 	in 	their
employment 	relations. 	By denying 	the 	employees 	a 	right
guaranteed 	by 	section 3543, 	the 	District violated
subsection 3543.5(a); 	by denying 	the Association a right
guaranteed by subsection 3543.l(a), 	the District violated
subsection 3543.5(b).
REMEDY
We have found that the Rio Hondo Community College District
violated subsections 3543.5(a) 	and 	(b) 	of the EERA. 	As a
remedy for 	those violations, 	the District will be ordered to
cease 	and desist from further 	such violations 	and 	to post 	the
Notice attached hereto as an appendix which announces the
disposition of the charges and the District's readiness 	to
comply with the ordered remedy. 	These measures are consistent
with 	the Board's remedial authority as 	set forth 	at
subsection 3541.5(c) 	of 	the EERA.
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ORDER
Upon the 	foregoing 	facts, 	conclusions 	of 	law and 	the entire
record 	in 	this case, 	and pursuant 	to Government Code
subsection 3541.5(c), 	it. is hereby ORDERED that:
The 	Rio Hondo Community College 	District, 	its governing
board, 	superintendent 	and 	other 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Violating 	Government 	Code 	subsection 	3543.5(a) 	by
denying 	to 	its 	employees 	the 	right 	to be 	represented 	by 	their
employee 	organization in 	the 	grievance 	resolution process;
2. 	Violating Government Code 	subsection 	3543.5(b) 	by
denying 	to 	the 	Rio Hondo Faculty Association, 	CTA/NEA, 	the
right 	to 	represent 	its 	members 	in 	their 	employment 	relations
with 	their 	public 	school employer.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Within 	five 	(5) 	workdays of 	the date 	of service
of 	this 	decision, 	post copies of 	the 	Notice attached as 	an
appendix hereto 	at 	all work 	locations 	in 	the 	Rio 	Hondo
Community College 	District 	where 	notices 	to employees
customarily are 	placed. 	Such 	posting 	shall 	be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable steps
should 	be 	taken 	to 	insure 	that 	these 	Notices 	are 	not 	reduced 	in
size, 	altered, 	defaced or 	covered 	by any other 	materials; 	and,
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2. 	Notify 	the 	Los 	Angeles 	regional director 	of 	the
Public 	Employment 	Relations 	Board 	in 	writing 	within 	30 	(thirty)
workdays 	from 	service 	of 	this 	decision 	of 	what 	steps 	the
District 	has 	taken 	to comply herewith.
All other 	charges 	filed 	against 	the 	Rio Hondo Community
College 	District 	in 	Case 	No. 	LA-CE-1101 are hereby 	DISMISSED.
This 	Order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	Rio 	Hondo 	Community 	College
District.
Members Morgenstern and 	Jensen 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE TO ALL 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case No. 	LA-CE-1101,
Rio Hondo 	Faculty Association, 	CTA/NEA v. 	Rio Hondo Community
College 	District, 	in which 	both parties had 	the 	right 	to
participate, 	the 	Rio Hondo Community College 	District 	has 	been
found 	guilty of violating 	subsections 	3543.5(a) 	and 	(b) 	of 	the
Educational 	Employment 	Relations 	Act 	(EERA) 	by 	refusing 	to
permit 	an agent of 	the 	Rio 	Hondo Faculty Association, 	CTA/NEA,
to 	represent 	employees Vince 	Furriel, 	Steve Collins 	and
Dan 	Guerrero 	at 	a meeting 	with 	Assistant 	Superintendent
Donald Jenkins 	which 	had 	been 	scheduled 	in 	an 	effort 	to 	resolve
grievances 	of 	those 	employees.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been ordered 	to post
this Notice, 	and we will abide by 	the 	following:
(A) 	WE WILL CEASE AND 	DESIST FROM:
1. 	Denying 	to our 	employees 	their 	right guaranteed 	by
the 	EERA to 	be 	represented 	in 	grievance matters 	by 	the
Rio Hondo 	Faculty Association.
2. 	Denying 	to 	the 	Rio 	Hondo Faculty Association,
CTA/NEA, 	its 	right guaranteed 	to 	it by 	the EERA to 	represent
its members 	in grievance matters.
RIO 	HONDO 	COMMUNITY COLLEGE 	DISTRICT
Dated: 	By:
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM 	THE DATE OF 	POSTING AND MUST 	NOT
BE REDUCED 	IN 	SIZE, 	ALTERED, 	DEFACED OR COVERED BY ANY OTHER
MATERIAL.
11

PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE OF CALIFORNIA
RIO 	HONDO FACULTY
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
RIO 	HONDO 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-1101
PROPOSED 	DECISION
(4/1/81)
Appearances; 	Charles R. 	Gustafson, 	Attorney for 	Rio Hondo
Faculty Association; 	John J. 	Wagner, 	Attorney 	(Wagner 	& Wagner)
for 	Rio 	Hondo Community College 	District.
Before Bruce 	Barsook, 	Hearing 	Officer.
PROCEDURAL 	HISTORY
On January 8, 	1980, 	the Rio Hondo Faculty Association
(hereafter 	Association) 	filed 	an 	unfair 	practice 	charge 	against
the 	Rio 	Hondo 	Community College 	District 	(hereafter 	District 	or
College) 	alleging violations of section 3543.5(a), 	(b), and 	(c)
of 	the Educational Employment 	Relations Act 	(hereafter 	EERA).1
The 	charge 	alleged 	that 	the 	District 	had 	reduced 	the 	work 	year
of 	instructor 	Vince 	Furriel 	from eleven 	and 	a half 	months 	to
ten months 	as 	a 	reprisal 	for 	activities 	protected 	by 	the EERA.
1Government Code 	section 	3540 	et 	seq. 	All 	statutory
references 	are 	to 	the California 	Government Code 	unless
otherwise 	specified.
)
)
)
)
)
)
)
)
)
)
)
______________ )

The 	Association 	also 	alleged 	that 	the 	District 	had 	refused 	to
participate 	in 	a 	grievance 	proceeding 	initiated 	by Furriel 	and
another 	instructor 	subsequent 	to 	the 	work year 	reduction.
On January 22, 	1980, 	the Association amended 	its charge 	to
add 	allegations 	that 	the 	District 	had 	threatened 	further
reprisals 	in 	the 	form of 	changes 	in 	the 	teaching 	schedules 	of
Furriel and 	two other 	instructors, 	Steve 	Collins 	and
Dan Guerrero. 	The amendment also claimed 	that 	the District, 	at
a meeting 	to discuss 	those 	schedule changes, 	denied 	the
instructors 	the 	right 	to 	be 	represented 	by 	the 	Association and
denied 	the 	Association 	its 	right 	to 	represent 	them. 	On 	the
same day, 	the 	Association 	filed a 	request 	for 	injunctive 	relief
which was 	subsequently denied 	by 	the 	Public 	Employment
Relations Board 	(hereafter 	PERB).
The 	District 	answered 	both 	the 	original charge 	and 	the
amendment on February 11, 	1980.
On April 	9, 	1980, 	the Association 	filed a second 	amendment
alleging 	a 	third 	reprisal 	against 	Furriel 	in 	the 	form of a
change 	in his office 	location. 	The 	District 	answered 	this
amendment on April 25.
When 	the 	matter 	could 	not 	be 	resolved 	at 	informal
conference, 	a formal hearing was held on June 	4, 	5, 	12, 	and 19
and July 9 	and 	10, 	1980. 	Post-hearing 	briefs were 	filed 	and
the case was 	submitted on October 	14, 	1980.
N	2

FINDINGS 	OF 	FACT
The parties 	have 	stipulated 	that 	the 	District 	is 	a public
school 	employer 	within 	the 	meaning 	of 	the EERA and 	that 	the
Association 	is 	an 	employee 	organization within 	the 	meaning 	of
the EERA.
All 	of 	the 	charges 	to 	be 	resolved 	in 	this 	case 	involve
members 	of 	the 	Department 	of 	Public 	Service 	(hereafter
Department) 	at 	Rio Hondo Community College. 	Through 	this
department, 	the College operates a police 	academy which 	is
located 	down 	a hill 	from 	the 	cluster 	of 	buildings which
constitute 	the 	"main campus." 	The 	Department 	offers 	courses
both 	in 	the 	academy and 	on 	the 	main campus 	and 	also makes 	use
of 	faculty offices 	in 	both 	locations.
The 	record 	discloses 	a 	long 	history of 	discord 	and
personality conflict within 	the 	Department. 	In particular,
Department 	Chairperson 	Alex 	Pantaleoni 	has 	developed 	strained
relationships 	with 	four 	instructors: 	Vince Furriel,
Tom Dickson, 	Steve Collins, 	and Dan Guerrero. 	This 	recurring
tension 	forms 	the 	background 	for 	the 	events 	underlying 	these
charges.
The 	Reduction 	in 	Furriel's Work Year
Furriel 	was 	hired 	in 	early 	1978 	under 	an eleven-month
contract, 	later 	raised 	to eleven 	and 	a half months per 	year.
In January of 	1979, 	Pantaleoni 	was 	informed 	by Don Jenkins,
Vice 	President 	for 	Academic Affairs, 	that 	substantial 	budget
W
	3

reductions 	would 	be 	necessary 	in 	the 	wake 	of 	the 	Proposition 	13
property 	tax 	initiative.2 After 	receiving 	Pantaleoni's
recommendations 	later 	in 	the month, 	Jenkins prepared 	a proposed
personnel 	analysis 	for 	the 	Department 	which 	showed 	that 	Furriel
and 	Dickson would 	be 	hired 	for 	only 	ten months 	in 	the 	1979-80
school year. 	Reductions 	were 	also 	listed 	for 	four 	other
instructors 	and 	for 	several 	classified 	employees.
On March 	2, 	1979, Jenkins 	sent 	a letter 	to Furriel
informing 	him 	that 	the 	Board 	of 	Trustees 	had 	approved 	his
employment 	as 	a 	regular 	employee 	for 	the 	1979-80 	school year.
Furriel 	testified 	that 	he 	interpreted 	this 	letter 	to 	mean 	that
he 	would continue 	on 	a work year 	of 	eleven 	and 	a half months.
Jenkins 	testified 	that 	it 	indicated 	only 	a 	change 	from
"contract" 	status to 	"regular" 	status as an employee. 	There 	is
no 	inconsistency 	in 	the 	record; 	rather, 	it appears 	that Furriel
misunderstood 	the 	intent 	of 	the 	letter.
A Department 	faculty meeting 	took 	place 	on March 	26.
Furriel made 	a motion 	that 	Pantaleoni 	conduct 	a 	review of 	the
distribution 	of 	instructional workloads 	and of 	release 	time 	for
administrative duties. 	The 	motion was 	seconded 	by Collins 	and
2Proposition 	13, 	a 	tax 	relief measure which 	added Article
XIIIA to 	the 	California Constitution, 	placed 	significant
limitations 	on 	the 	taxing power 	of 	local and 	state 	government
and 	sharply 	reduced 	the 	amount 	of 	revenue 	that 	local 	entities
could 	raise 	by 	taxing property. 	The 	constitutionality of 	this
measure 	was 	upheld 	in Amador 	Valley 	Joint 	Union 	School 	District
v. 	State Board of Equalization 	(1978) 	22 Cal.3d 	208. 	See 	also
Sonoma County 	Organization of 	Public 	Employees 	v. 	County 	of
Sonoma 	(1979) 	23 Cal.3d 	296.
4

passed. 	Pantaleoni 	said 	he 	would 	comply.
A few days later, 	Furriel, 	Dickson, 	Collins and Guerrero
met 	with 	Jenkins 	to discuss 	their 	continuing 	concerns 	about 	the
management 	of 	the 	Department.
The 	record 	is 	unclear 	as 	to when Furriel was 	first 	informed
that 	his work 	year 	would 	be 	reduced. 	Furriel 	testified
initially 	that 	Pantaleoni 	told 	him on March 	26 	that 	he 	would
continue 	at 	eleven 	and 	a 	half 	months 	and 	then 	informed 	him of
the 	reduction, 	without giving a reason, 	at 	another meeting on
April 	7. 	Later 	in the hearing, 	however, 	he 	testified 	that he
first 	knew of 	the 	reduction 	at 	the 	end 	of March, 	after 	the
Department 	meeting. 	Pantaleoni's 	testimony 	was 	that 	the
subject 	did 	not 	arise 	at 	all 	at 	the 	March 	meeting 	and 	that 	he
later 	called 	all 	of 	the 	employees 	who were 	slated 	for 	reduction
to his office on an 	individual basis. 	He 	stated 	that 	he did
explain 	the 	budget 	situation 	to Furriel 	when 	they met 	but
indicated 	that 	the 	budget 	had 	not 	yet 	been 	adopted 	by 	the 	Board
of Trustees. 	Pantaleoni's 	version 	is 	the more credible.
Furriel's 	testimony was 	vague 	and 	inconsistent 	on 	the 	matter 	of
dates.
Another 	meeting 	with 	Jenkins 	took place on April 	19 	with
Pantaleoni present. 	Also 	included was Gary Curtis, 	an
instructor 	and 	President 	of 	the 	College's Academic 	Senate.
During 	the meeting, 	Pantaleoni 	produced 	a 	file on Furriel which
un
	5

Furriel 	had 	not previously 	seen. 	Pantaleoni 	showed 	a 	part 	of
the 	file 	to Curtis. 	The 	record 	does 	not 	disclose 	the 	contents
of 	the 	file, 	except 	that Pantaleoni 	testified 	that 	it 	included
a 	student 	complaint 	about 	Furriel. 	Pantaleoni 	also 	testified
that 	he 	keeps 	files on all 	employees 	in 	the Department.
On May 	1, 	the College's director 	of personnel wrote 	to
Furriel 	to 	inform him officially 	of 	the 	reduction 	in his 	work
year. 	The 	reduction went 	into effect July 1, 	1979.
The 	Refusal 	to 	Participate 	in 	Grievance 	Proceedings
On May 	29, 	1979, 	Furriel and 	Dickson 	filed 	a grievance 	on
behalf of 	"Vince Furriel, 	Tom Dickson, 	et al., Members of the
Public Service 	Faculty" 	against 	"Alex Pantaleoni, 	Chairperson,
Department 	of 	Public 	Service." 	The 	grievance 	contained
allegations 	that 	Pantaleoni 	had 	refused 	to 	offer 	eleven-month
contracts 	to 	qualified 	instructors 	without 	informing 	them of
the 	criteria 	and 	had 	inequitably 	distributed 	release 	time
within 	the 	Department. 	It 	also 	charged 	him with 	ignoring
majority 	recommendations 	of 	faculty members 	and 	with 	allowing
the 	advisory 	committee 	of police 	officials 	to dictate 	policy.
Another 	charge 	accused 	him of 	keeping 	employee 	files 	containing
derogatory material 	and 	using 	them 	in making 	decisions 	without
permitting 	inspection 	by 	the 	affected 	persons. 	The 	grievance
was 	filed 	under College 	Procedure No. 	5005, 	an 	in-house
procedure 	adopted 	by 	the 	president 	of 	the 	College 	but 	not 	by
the Board of 	Trustees. 	The procedure provided 	for 	a 	hearing
6

V
before 	a 	three-member 	committee 	which 	would 	submit 	its 	findings
to 	the 	president. 	Either 	party could 	then 	appeal 	the
president's 	decision 	to 	the Board 	of 	Trustees, 	which 	had 	the
ultimate 	authority 	in 	the matter. 	There was 	no provision 	for
arbitration, 	binding or 	advisory, 	before a neutral party.
Pantaleoni 	responded 	to 	the 	grievance 	on June 	14. 	At 	the
same 	time, 	he 	filed 	a 	cross 	complaint 	alleging a 	variety of
disruptive 	behavior 	by 	the 	grievants.
The 	Association 	became 	the 	exclusive 	representative 	of 	the
College's certificated 	personnel 	in June of 1979. 	During 	the
fall of 	that year, 	the grievants met with Gilbert Acosta, 	a
representative 	of 	the 	California 	Teachers 	Association
(hereafter CTA). 	Acosta 	assisted 	the grievants 	in preparing
for 	their 	hearing. 	Instructors 	Collins 	and 	Guerrero 	also
provided 	assistance. 	The 	grievance 	went 	to
hearing 	on 	December 	3 	before 	a committee 	of 	two 	instructors 	and
one 	administrator. 	Guerrero 	acted 	as 	spokesperson 	for 	the
grievants, 	and Acosta 	also attended. 	Pantaleoni was present
and 	was 	represented 	by 	another 	instructor.
On December 	5, 	the 	second 	day of 	the 	hearing, 	Pantaleoni
was 	represented 	by John Wagner, 	an 	attorney provided 	by 	the
District. 	Wagner 	argued 	to 	the 	committee 	that 	the 	grievants'
allegations 	were 	not 	proper 	grievances 	under 	the 	College's
procedure 	and 	that 	the 	committee 	therefore 	lacked
7

jurisdiction. 	The 	committee 	rejected 	this 	argument. 	Wagner,
Pantaleoni, 	and other 	administrators 	in attendance 	then 	left
the 	hearing 	room, 	and 	the 	hearing 	continued without 	them. 	No
one was present 	for 	the 	respondent on December 	12, 	the 	third
and 	final 	hearing 	day.
The committee 	issued 	its 	findings on January 7, 	1980. 	The
findings were predominantly 	favorable 	to 	the grievants, 	with
the 	committee 	lamenting 	the 	low morale 	in 	the 	Department 	and
the 	absence 	of 	established 	policies 	on 	several matters 	at
issue. 	Leonard 	Grandy, 	President of the College, 	received 	the
findings 	and 	solicited 	responses 	from 	the 	parties. 	Pantaleoni
responded; 	the 	grievants 	did 	not. 	Grandy 	then 	issued 	his
decision 	that 	the 	grievance 	was 	not 	proper 	because 	the
allegations 	lacked 	the 	specificity 	required 	by 	the 	procedure.
However, 	he 	expressed 	sympathy with 	the 	committee's 	concerns
and 	indicated 	that 	he would 	take 	some 	action 	in 	response 	to
them. 	Furriel 	then appealed 	to the Board of Trustees, 	which
upheld 	the 	President's 	decision.
The 	Proposed 	Changes 	in 	Teaching 	Schedules 	and 	the 	Right of
Representation
Meanwhile, 	another problem arose 	in December, 	1979, when
one of 	the 	grievants, 	Tom Dickson, 	resigned 	from the College.
Dickson's 	resignation presented 	the 	Department 	with 	the 	need 	to
adjust 	its 	course 	schedules 	for 	the 	spring 	1980 	semester 	to
cover 	Dickson's 	scheduled 	courses. 	Proposed 	schedules 	for
8

Furriel, 	Collins 	and Guerrero were prepared 	by Pantaleoni 	and
John Metcalf, 	another 	instructor 	in the 	Department. 	These
schedules 	would 	have 	replaced 	the 	original 	schedules 	which 	had
been 	prepared 	in 	September 	and 	which 	had 	already 	been 	published
in a College 	schedule distributed 	to students. 	These 	three
instructors 	were 	chosen 	for 	readjustment 	because 	they 	were 	best
qualified 	to 	teach 	Dickson's 	campus 	classes 	and 	already 	taught
all or 	part of 	their 	schedules 	on 	the main campus.
Pantaleoni 	sent 	the 	schedules 	to 	the 	affected 	instructors
as attachments 	to a memo dated January 3, 	1980. 	The memo
indicated 	that 	the 	schedules 	were 	tentative 	and 	were 	drafted 	in
response 	to 	Dickson's 	resignation. 	It 	also 	listed 	as
considerations 	a 	request 	by Collins 	to 	teach one 	of 	Dickson's
classes, 	the 	need 	to compensate 	Guerrero 	for 	his previous
overloaded 	schedule, 	and 	the 	possibility of 	alleviating 	some 	of
Furriel's 	"dissatisfaction" 	through 	rescheduling. 	In addition,
the memo 	stated 	that 	the 	schedules 	would 	be discussed 	on
January 	7 at 	a meeting 	set 	by a previous memo 	from Ken
Knowlton, 	a 	District 	administrator 	and 	Pantaleoni's 	immediate
superior.
The 	three 	instructors 	were 	unhappy 	with 	the 	proposed
changes 	for 	several 	reasons. 	They objected 	to 	the 	short 	period
of 	time 	they would 	have 	to prepare 	for 	new 	courses 	and
9

especially 	to 	teaching 	courses 	they 	had 	not 	previously 	taught.
They 	also cited 	health 	and 	other 	personal 	objections 	to 	night
classes 	with 	early morning 	courses 	on 	the 	following 	days.
Collins 	considered 	five 	distinct 	course 	preparations 	to 	be
unusually 	heavy, 	and 	Furriel disliked 	the 	proposal 	to 	remove
him 	from academy 	teaching 	and 	place 	him on 	the 	main 	campus 	full
time. 	The 	instructors 	voiced 	these 	concerns 	to Pantaleoni 	and
made phone 	calls 	to Jenkins 	as well. 	Furriel 	and 	Collins met
with 	Jenkins 	on 	January 	7, 	but 	the 	problem was 	not 	resolved.
Another 	meeting was 	then 	scheduled 	for 	January 	16. 	In 	the
meantime, 	the 	three 	instructors 	received 	a 	second 	set of
proposed 	schedules 	and 	submitted 	a proposal of 	their 	own 	to
Jenkins.
On January 	16, 	the 	three 	instructors were 	accompanied 	by
CTA representative 	Gilbert Acosta. 	Jenkins 	refused 	to meet
with 	Acosta 	present 	because 	he 	had 	had 	no 	notice 	that Acosta
would 	come 	and 	no 	opportunity 	to obtain 	representation 	of 	his
own. 	The meeting was 	rescheduled 	for 	January 18, 	and John
Wagner, 	attorney 	for 	the District, 	attended on 	that day. 	When
Acosta 	and 	the 	instructors 	arrived, 	Wagner 	argued 	that 	there
was 	no 	right 	to Association 	representation 	at 	this 	type 	of
meeting. 	After 	several minutes of heated 	discussion, 	Acosta
and 	the 	instructors 	left. 	Acosta 	testified 	that 	they were 	told
to 	leave, 	while Jenkins 	testified 	that 	he 	and Wagner 	argued
10

with Acosta 	but did 	not order 	him out. 	In any event, 	it 	is
clear 	that 	the 	District 	was 	unwilling 	to discuss 	the 	schedules
with 	an 	Association 	representative 	present.
On January 22, 	Pantaleoni 	sent 	a memo to Furriel 	restoring
his 	original 	schedule 	for 	the 	spring 	semester. 	Guerrero also
taught 	the 	courses 	scheduled 	for 	him 	in September, 	with 	the
exception of 	one 	class 	that 	was 	cancelled 	for 	insufficient
enrollment. 	Collins, however, 	taught both of Dickson's campus
classes. 	He 	voiced 	continuing objections 	to 	the 	late 	nights
followed 	by 	early mornings 	in 	his 	final 	schedule 	and 	testified
that 	he 	signed his 	course 	schedule 	"under 	duress" 	because 	so
little 	time 	remained 	before 	the 	start 	of 	the 	semester.
Dickson's 	academy classes 	were 	staffed 	by 	part-time 	hourly
instructors.
The 	Relocation 	of 	Furriel's 	Office
Two months later, 	in March of 	1980, 	the Department acquired
a 	small 	computer 	for 	use 	in 	assembling mailing 	lists 	and
tracking 	academy 	students 	in 	their 	satisfaction 	of 	graduation
requirements. 	Pantaleoni 	discussed 	the 	problem of 	the 	location
of 	the 	computer 	with 	several 	Department members, 	including
Furriel. 	He 	concluded 	that 	the 	best 	method 	of 	accommodating
the 	computer 	was 	to move 	Furriel 	from his office 	in 	the 	academy
to 	an office 	on 	the 	main 	campus occupied 	by 	Dickson 	before 	his
resignation. 	In a memo to Furriel dated March 	21, 	Pantaleoni
11

outlined 	the 	reasons 	for 	his 	conclusion. 	He 	chose 	not 	to place
the 	computer 	in 	a public 	area 	of 	the 	academy because 	of 	reduced
security 	and 	because 	he 	believed 	smoke 	would 	adversely 	affect
it.3 He 	rejected 	other 	rooms 	for 	their 	space 	limitations 	and
because 	of 	the 	smoking 	problem. 	The 	choice was 	narrowed 	to
faculty offices, 	and 	Pantaleoni 	decided 	that 	Furriel 	should
move 	because 	he 	was 	the 	only 	instructor 	with 	an office 	in 	the
academy who 	was 	currently 	teaching 	on 	the 	main 	campus.
Furriel objected 	to 	the move 	for 	a 	number 	of 	reasons. 	He
felt 	that 	it would 	impose 	a 	burden 	on 	him 	because 	his 	knee
injury 	prevented 	him 	from walking 	the 	steep hill 	between 	the
two 	sites 	and 	he 	would 	therefore 	have 	to 	increase 	his 	driving.
In addition, 	he would have difficulty meeting with 	cadets
because 	they were 	not 	permitted 	to 	leave 	the 	academy. 	Furriel
suggested 	alternative 	locations 	for 	the 	computer 	and 	for
himself. 	He presented 	some of 	these 	on March 	27 	at 	a meeting
with Jenkins, 	Knowlton, 	Pantaleoni 	and Acosta.
The meeting did not 	resolve 	the 	issue, 	and Furriel, 	Acosta,
and 	Pantaleoni 	then 	went 	to 	the 	academy 	to examine 	the
available 	space 	in 	light of Furriel's suggestions. 	The
3 The 	Association 	argued 	that 	smoke 	would 	not 	be 	harmful
to 	the 	computer 	and 	introduced 	evidence 	to 	that 	effect.
However, 	the 	record 	indicates 	that 	the 	District 	believed 	that
smoke would 	have 	a 	harmful 	effect 	and 	acted 	under 	that
assumption 	in 	good 	faith.
12

following 	day 	Pantaleoni 	sent 	Furriel 	a 	memo 	indicating 	that 	he
had 	considered 	the 	alternatives 	again 	but 	had 	not 	changed 	his
mind. 	The move 	itself 	took place 	in early April 	1980.
The 	record 	discloses 	that 	at 	the 	time 	of 	the 	move 	Furriel
was 	teaching 	60 	percent of his 	regular 	course 	load 	in 	the
academy and 	that 	no other 	instructor 	taught more 	hours 	there.
However, 	the 	other 	full-time 	instructors 	with 	academy offices
all 	had 	a portion of 	their 	time 	reserved 	for 	administrative 	or
other 	non-teaching 	duties 	which 	required 	their 	presence 	in 	the
academy.
ISSUES
1. 	Does 	the 	six-month 	statute of 	limitations 	bar 	the
allegation 	involving 	the 	reduction 	of Vincent 	Furriel's 	work
year?
2. 	If the allegation 	is not 	barred, 	was the 	reduction 	in
Furriel's 	work 	year 	a 	reprisal 	imposed 	on 	him 	because 	of 	an
exercise 	of 	rights 	protected 	by 	the 	EERA?
3. 	Did 	the District 	impose a 	reprisal on Furriel, 	or 	deny
the Association's right 	to represent him, 	by a refusal to
participate 	in 	grievance 	proceedings?
4. 	In proposing changes 	in the 	teaching 	schedules of 	three
instructors, 	did 	the District 	threaten 	to 	impose 	reprisals 	on
them because 	of 	their 	exercise 	of 	rights 	guaranteed 	by 	the 	EERA?
13

5. 	Was 	the District's 	unwillingness 	to discuss 	the
proposed 	schedule 	changes 	in 	the 	presence 	of 	an Association
representative 	a 	denial 	of 	the 	Association's 	right 	to 	represent
the 	three 	instructors or 	of the 	instructors' 	right 	to 	be
represented?
6. 	By changing 	the 	location of Furriel's office, 	did 	the
District 	impose 	a 	reprisal 	for 	his 	exercise of 	rights
guaranteed 	by 	the 	EERA?
CONCLUSIONS 	OF 	LAW
1. 	The 	Statute 	of Limitations
The 	District 	argues 	that 	the 	allegation 	involving 	the
reduction 	in Vincent 	Furriel's 	work 	year 	is 	barred 	by 	the
six-month 	statute 	of 	limitations 	because 	the 	reduction 	was
effective July 1, 	1979, 	and 	the 	charge was not 	filed 	until
January 	8, 	1980. 	The District 	first 	raised 	this defense 	at 	the
hearing 	and 	reiterated 	it 	in 	its 	post-hearing 	brief.
Section 	3541.5(a) 	provides 	that 	the 	PERB shall not 	"issue 	a
complaint 	in 	respect 	of 	any 	charge 	based 	upon 	an 	alleged 	unfair
practice occurring more 	than 	six months prior 	to 	the 	filing 	of
the charge. 	. 	.." 	Section 3541.5(a) 	is similar 	to and
apparently modeled 	after 	section 	10(b) 	of 	the 	National Labor
Relations Act 	(hereafter 	NLRA),4 which 	establishes 	a
429 U.S.C, sec. 	160.
14

six-month 	limitation 	for 	complaints 	issued 	by 	the 	general
counsel.
Cases 	interpreting 	section 	10(b) 	hold 	that 	it 	is 	a statute
of 	limitations 	and 	is not 	jurisdictional. 	It 	is an affirmative
defense 	and 	is waived 	if not 	timely raised. 	NLRB v. 	A.E.
Nettleton Co. 	(2d Cir. 	1957) 	241 F.2d 130 	[39 LRRM 2338].
Accord, 	Chicago Roll Forming Corp. 	(1967) 	167 NLRB 961 	[66 	LRRM
1228], enf. 	sub. nom. NLRB v. Chicago Roll Forming Corp. 	(7th
Cir. 	1969) 	418 	F.2d 	346 	[72 	LRRM 2683].5
The 	PERB's 	regulations provide 	at Title 	8, 	California
Administrative Code, 	section 	32635 (a) 	that 	the 	respondent
"shall 	file 	with 	the Board 	an 	answer 	to 	the 	unfair 	practice
charge 	within 	20 	calendar 	days or 	at 	a 	time 	set 	by 	the 	Board
agent 	following 	the 	date 	of 	service 	of 	the 	charge 	by 	the 	Board
agent." 	The 	rules 	further 	provide 	at 	Title 	8, 	California
Administrative Code, 	section 	32640(f) 	that 	the 	answer 	shall
contain 	"[a] 	statement 	of any affirmative 	defense." 	The
District 	failed 	to plead 	the 	statute 	of 	limitations 	in 	its 	two
answers. 	It was not 	until 	the hearing 	itself, 	nearly 	five
months 	after 	the 	charge 	was 	filed, 	that 	the District 	first
objected 	to 	the 	introduction 	of 	evidence 	pertaining 	to 	events
prior 	to July of 	1979.
5See also, 	Travelers 	Indemnity Co. 	v. 	Bell 	(1963) 	213
Cal.App.2d 	541; 	Mitchell v. 	County Sanitation District 	(1957)
150 	Cal.App.2d 366.•
15

By 	its 	failure 	to 	timely plead 	the 	statute 	of 	limitations
or 	to provide 	evidence 	of 	extraordinary circumstances 	excusing
untimely pleading, 	the District has waived 	its 	right 	to assert
the 	statute 	of 	limitations 	as 	an 	affirmative 	defense.
Therefore, 	the 	unfair practice 	charge 	is 	not barred 	by 	the
statute 	of 	limitations.
2. 	The 	Reduction 	in Furriel's Work 	Year
The 	first 	charge 	is 	that 	the 	District 	imposed 	a 	reprisal on
Furriel 	when 	it 	reduced 	his 	work 	year 	from eleven 	and 	a 	half 	to
ten months. 	The Association 	alleges 	a violation of 	section
3543.5(a), 	which makes 	it unlawful for a public school employer
to 	"impose or 	threaten to 	impose reprisals on employees. 	. 	.
because 	of 	their 	exercise of 	rights 	guaranteed 	by 	the 	[EERA]."
The 	Association's 	claim 	contends 	that 	Furriel 	was
exercising 	protected 	rights 	when he made 	his motion 	at 	the
Department meeting of March 	26, 	1979, 	and 	in his discussion of
Department problems with Jenkins a 	few days 	later. 	But 	even 	if
6these 	were 	protected 	activities, 	the record 	indicates 	that
the District's 	conduct 	was 	not a 	reprisal. 	The decision 	to
reduce 	Furriel's work year 	was 	made
6The 	PERB has 	yet 	to delineate 	the 	full 	scope 	of
protected 	activity 	under 	the EERA, 	but 	it 	is 	arguably narrower
than 	under 	the 	NLRA, 	because 	of differences 	in 	statutory
language. 	Compare 	section 	3543 	of 	the 	EERA with 	the 	"concerted
activities" 	language 	of 	section 	7 of 	the NLRA 	(29 	U.S.C. 	sec.
157) .
16

in January, 	some 	two months 	prior 	to 	the 	allegedly protected
activity. 	The 	District 	has 	explained 	its 	decision 	as 	the
product 	of 	budget 	constraints 	and 	has 	shown 	that 	other
employees 	received 	similar 	treatment.
In addition, 	Furriel's 	contention 	that he was 	told after
January 	that 	he would 	remain on 	an 	eleven 	and 	a half-month
contract 	is 	unsupported 	by 	the 	record. 	He misunderstood 	the
letter 	of March 	2 	and 	offered 	vague 	and 	inconsistent 	testimony
concerning 	what 	Pantaleoni 	told 	him on March 	26.
The 	charge 	that 	the 	District 	violated 	section 	3543.5 (a) 	by
reducing 	Furriel's 	work 	year 	is 	therefore 	dismissed.
3. 	The 	Refusal 	to Participate 	in Grievance Proceedings
The 	Association 	charges 	that 	the 	District 	violated 	section
3543.5 (a), 	(b), and 	(c) 	by refusing to participate in the
grievance 	procedure 	invoked 	by 	Furriel 	and 	Dickson. 	The
parties 	have 	argued 	at 	length 	about 	the 	provisions 	of 	College
Procedure No. 	5005. 	The District 	contends 	that 	the 	grievance
was 	filed 	against 	Pantaleoni 	as 	an 	individual and 	not 	against
the 	District 	because 	the 	procedure 	does 	not provide 	for
grievances 	against 	the 	District. 	It 	also argues 	that 	the
respondent 	is 	permitted 	but 	not 	obligated 	to put 	on a defense
under 	the 	procedure. 	The Association counters 	that 	the
grievance 	was 	filed 	against 	"Alex Pantaleoni, 	Chairperson,
Department of Public Service"; 	that 	is, 	against Pantaleoni 	in
17

his 	official capacity representing 	the 	District. 	It 	also
contends 	that 	the 	District was obligated 	to adhere 	to 	its own
in-house 	grievance 	procedure.
It 	is not necessary to resolve 	these questions, 	however,
because 	the 	record 	shows 	that 	Pantaleoni, 	in whatever 	capacity,
did participate 	in 	the proceedings, 	whether or 	not he was
obligated 	to do 	so. 	After 	the 	initial grievance was 	filed,
Pantaleoni 	filed 	a 	response 	and 	cross 	complaint. 	He was
present 	and 	represented 	on 	the 	first 	day of 	the 	hearing, 	and 	on
the 	second 	day 	his 	representative 	argued 	that 	the 	committee
lacked 	jurisdiction. 	There 	is 	no 	evidence 	that 	this argument
was 	not 	made 	in good 	faith. 	After 	the 	committee 	issued 	its
findings, 	Pantaleoni 	responded 	to 	the President's call 	for
input 	from 	the 	parties. 	The 	only 	evidence 	of non-participation
in 	the 	record 	is 	the departure of 	Pantaleoni 	from the 	hearing
on 	the 	second 	day 	and 	his 	absence 	on 	the 	third. 	There 	is 	no
indication 	that 	his 	absence 	in 	any way hindered 	the 	resolution
of 	the 	grievance; 	indeed, 	it may have 	helped 	to ensure 	findings
favorable 	to 	the grievants. 	There 	is 	therefore no action by
the 	District which might 	be 	considered 	a 	reprisal 	for 	the
filing 	of 	the 	grievance 	or 	for 	any 	other 	exercise 	of 	rights
guaranteed 	by 	the 	EERA.
There 	is 	also 	no merit 	to 	the Association's contention 	that
an obligation 	to process 	the 	grievance 	in 	full 	arises 	from
section 3543. 	That section provides, 	in part, 	that 	"any
18

employee may 	at 	any 	time 	present 	grievances 	to his 	employer,
and have 	such grievances adjusted 	. 	. 	.." 	The Association
argues 	that 	this provision 	not only 	grants 	employees 	the 	right
to 	file grievances 	but 	also 	imposes 	on 	employers 	the 	duty 	to
adjust or 	resolve 	them. 	However, 	the PERB has 	interpreted
section 	3543 differently. 	The 	primary 	intent 	of 	the 	section 	is
to prevent 	the 	interference 	of 	exclusive 	representatives 	in
individual grievances. 	An employer's 	refusal to process 	a
grievance 	is not 	an 	unfair 	practice 	unless 	it 	is also a
reprisal or 	discrimination 	for 	the 	exercise 	of employee
rights. 	Neilman v. 	Baldwin Park 	Unified School District
(4/4/79) 	PERB Decision No. 	92.
A third 	argument 	of 	the 	Association 	is 	that 	the 	District
denied 	the 	Association 	its 	right 	to 	represent 	the 	grievants 	in
the 	grievance 	proceedings. 	The 	right of 	representation 	arises
from section 3543.l(a), 	which provides 	that 	"employee
organizations 	shall 	have 	the 	right 	to 	represent 	their 	members
in 	their 	employment 	relations 	with public 	school
employers 	. 	. 	.." 	Grievance procedures are 	included 	in
"employment 	relations" 	under 	this 	section.7 Section
3543.5(b) 	makes 	it 	unlawful 	for 	the 	employer 	to 	"deny 	to
7 See, 	for 	example, 	Diablo Valley Federation of Teachers
v. 	Mount 	Diablo 	Unified 	School 	District 	(12/30/77) EERB
Decision No. 	44.
19

employee 	organizations 	rights 	guaranteed 	to 	them" 	by the EERA.
However, 	the Association 	has 	presented 	no evidence 	that 	the
District 	prevented 	or 	attempted 	to prevent 	the 	Association
representative 	from 	attending 	the 	grievance 	hearing 	or
otherwise 	assisting 	the grievants. 	Without such evidence, 	a
violation 	cannot 	be 	found.
The 	Association 	further 	alleged 	in 	the 	original charge 	that
the 	District's 	conduct 	in 	withdrawing 	from 	the 	hearing 	violated
section 	3543.5(c). 	That 	section makes 	it unlawful 	for 	an
employer 	to 	"refuse or 	fail 	to meet 	and 	negotiate 	in 	good 	faith
with an exclusive 	representative." 	Again, 	however, 	the
Association 	presented 	no 	evidence 	or 	argument 	to 	support 	this
allegation, 	and 	no violation can 	be 	found.
The 	Association 	has 	failed 	to 	demonstrate 	by 	a
preponderance 	of 	the 	evidence 	that 	any 	conduct 	by 	the 	District
with 	respect 	to 	the 	grievance 	proceedings 	violated 	section
3543.5 (a), 	(b), or 	(c). 	Accordingly, this portion of the
charge must 	be 	dismissed.
4. 	The 	Proposed 	Changes 	in Teaching Schedules
The 	Association 	alleges 	that 	the 	District 	violated 	section
3543.5(a) 	by 	its 	proposed 	changes 	in 	the 	teaching 	schedules 	of
Furriel, 	Collins, 	and Guerrero. 	The basis of this argument 	is
that 	the 	proposed 	changes 	constituted 	a 	threat 	to 	impose
20

reprisals 	on 	the 	three 	instructors 	for 	the 	processing of
Furriel's 	grievance 	against 	Pantaleoni.8
The 	test 	to 	be 	applied 	in 	resolving 	issues 	of 	reprisal 	is
set 	out 	in 	Oceanside-Carlsbad 	Federation 	of Teachers 	v.
Carlsbad Unified School District 	(1/30/79) 	PERB Decision N O .
89, as follows:
1. 	A single 	test 	shall 	be 	applicable 	in all
instances 	in which 	violations 	of 	section
3543.5(a) 	are alleged;
2. 	Where 	the 	charging 	party 	establishes
that 	the 	employer's 	conduct 	tends 	to or 	does
result 	in 	some 	harm 	to 	employee 	rights
granted 	under 	the EERA, 	a prima 	facie 	case
shall be 	deemed 	to exist;
3. 	Where the harm to the employees' 	rights
is 	slight, 	and 	the employer offers
justification 	based 	on 	operational
necessity, 	the 	competing 	interest of 	the
employer 	and 	the 	rights 	of 	the 	employees
will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
4. 	Where 	the 	harm 	is 	inherently destructive
of 	employee 	rights, 	the 	employer's conduct
will 	be 	excused 	only on proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course of 	action was 	available;
5. 	Irrespective of 	the 	foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown 	that 	the
employer 	would 	not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an 	unlawful
motivation, purpose or 	intent.
8	8sec.	sec. 	3543 	grants 	employees 	the 	right 	to 	"present
grievances 	to 	[the] 	employer" 	and 	to 	"participate 	in the
activities 	of 	employee 	organizations." 	By 	rendering 	assistance
to Furriel, 	Collins 	and Guerrero participated 	in organization
activity.
21

The 	Association 	has 	made 	out 	a 	prima 	facie 	case 	under 	the
second 	part 	of 	the 	Carlsbad 	test. 	At 	the 	time of 	the 	proposed
change, 	the affected 	instructors 	had 	recently 	been 	involved 	in
a 	grievance 	proceeding 	against 	their 	Department 	chairperson.
The 	grievance 	had 	been 	preceded 	by 	an 	extensive 	history 	of
discord 	and 	complaints 	about 	the 	management 	of 	the 	Department.
In addition, 	the 	instructors did 	have 	reason 	to believe 	they
would 	be 	adversely affected 	by 	the 	schedules. 	They were 	being
asked 	to prepare 	for 	new courses 	in a 	very 	short 	time 	and 	to
teach 	less desirable hours. 	It 	is conceivable 	that 	such 	a
prospect 	could 	inhibit 	the 	exercise 	of 	employee 	rights.
However, 	the 	Association 	has 	not 	shown 	the 	District's
conduct 	to 	be 	"inherently destructive 	of 	employee 	rights." 	The
action 	taken was 	not 	severe. 	It was of 	the 	type which 	is 	not
punitive 	on 	its 	face 	and 	could 	occur 	in 	the 	normal 	course 	of
events. 	The 	three 	instructors 	were 	not 	heavily 	involved 	in
organizational 	activities, 	and 	no great 	chilling 	effect on 	such
activities 	could 	be 	expected. 	The 	timing 	does 	not 	clearly 	show
the District 	to 	have 	been 	responding 	to 	the grievance, 	since
the 	schedules 	were 	proposed 	some 	seven months 	after 	the 	filing
and 	one 	month 	after 	the 	hearing 	began.
The 	case 	therefore 	falls 	under 	the 	"slight 	harm" 	section 	of
the Carlsbad 	test. 	The 	employer's 	business 	justification must
be 	balanced 	against 	that 	slight 	harm. 	Here 	the 	District 	has
22
•

offered 	a 	reasonable explanation 	for 	its 	conduct. 	The
resignation of 	Tom Dickson 	came 	less 	than 	two months 	before 	the
start of 	the 	new 	semester, 	with 	the Christmas 	vacation
intervening. 	The 	District 	had 	to 	adjust 	the 	schedule of
classes 	quickly 	to maintain 	an 	adequate 	curriculum 	in 	the
Department. 	Collins, 	Guerrero 	and 	Furriel were 	already 	sharing
with 	Dickson 	the 	responsibility 	for 	the 	Department's 	campus
classes. 	Their 	qualifications 	and 	recent 	teaching 	experience
made 	them 	likely candidates 	for 	schedule adjustment. 	In
addition, 	the 	College's 	large population of working 	students
had 	traditionally 	meant 	that 	many 	classes 	would 	be 	offered 	in
the 	evenings 	and 	early mornings.
The 	Association 	argues 	that 	the 	District's 	restoration of
the 	original 	schedules 	for 	Guerrero 	and 	Furriel 	after 	their
protests 	showed 	that 	the 	District 	lacked 	any 	justification 	of
business 	necessity. 	But 	the 	withdrawal of 	the 	proposed 	changes
could 	just 	as 	easily 	have 	demonstrated 	the 	District's
responsiveness 	to 	the 	instructors' 	concerns. 	In 	either 	event,
the 	District 	cannot 	be 	required 	to 	come 	up with 	the 	best
possible 	solution 	in 	the 	eyes 	of 	the 	instructors 	or 	of 	the
hearing 	officer. 	The 	problem was 	thrust 	upon 	the 	District 	by
Dickson's 	resignation, 	and 	it 	responded 	by proposing 	a 	solution
and 	calling 	for 	a meeting. 	When objections were 	raised, 	the
District 	prepared 	a 	second 	set 	of 	schedules 	for 	consideration.
The 	record 	also 	shows 	that 	Collins 	did 	eventually 	teach 	a
23

schedule different 	from his original one. 	This 	provides 	some
evidence 	that 	the 	solution 	did 	require 	some 	adjustment 	in 	the
spring 	schedule.
The 	Association 	draws 	its 	nexus 	between 	employee 	rights 	and
District 	action 	entirely on 	inference 	from 	the 	timing 	and 	from
Department history. 	The 	District, 	on 	the other 	hand, 	can point
to a problem which 	it did 	not 	create 	and 	to which 	it 	had 	to
respond 	quickly. 	It 	has offered 	a 	reasonable 	explanation 	for
the 	way 	it 	handled 	the 	situation. 	The 	balance 	tips 	in 	favor 	of
the 	District's 	business 	justification. 	The charge 	of a
threatened 	reprisal 	is 	therefore 	dismissed.
5. 	The 	Right 	of 	Representation
The Association also alleges 	in 	the 	first 	amendment 	to 	the
charge 	that 	the 	District's 	unwillingness 	to discuss 	the
proposed 	schedule 	changes 	in 	the 	presence 	of an Association
representative 	constituted 	a 	violation of 	section 	3543.5(a) 	and
(b). 	The claim 	is 	that 	the 	District 	interfered with 	the 	right
of 	the 	three 	instructors 	to 	be 	represented 	by 	the Association
and 	denied 	the 	right 	of 	the 	Association 	to 	represent 	them.
These 	rights 	are 	guaranteed 	by EERA sections 	3543 	and
3543.1(a), 	respectively. 	Section 3543 provides that:
Public 	school 	employees 	shall 	have 	the 	right
to 	form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
---------------representation on 	all matters 	of
employer-employee relations. 	'. 7. 	[Emphasis
added.]
24

Section 3543.1 (a) 	provides that:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
e m p l o y e r s . . . . [Emphasis 	added.]
The 	Association 	argues 	that 	the 	present 	case 	falls 	within 	the
analogous 	private 	sector 	right 	enunciated 	by 	the 	Supreme 	Court
in NLRB v. J. Weingarten, 	Inc. 	(1975) 	420 U.S. 	251 	[88 LRRM
2689]. 	Weingarten 	established 	the 	right of an employee 	to
union 	representation 	upon 	request 	at 	an 	investigatory 	interview
which 	he 	reasonably 	believes 	might 	result 	in disciplinary
action. 	This 	right was 	based 	on 	the 	NLRB's 	interpretation of
the 	"concerted 	activities" 	clause 	of 	section 	7 	of 	the 	NLRA9
to 	include 	union 	assistance 	in 	such 	a 	situation. 	The Court
also 	reasoned 	that 	the 	union 	representative 	would 	safeguard 	the
interests 	of 	other 	union members 	by 	assuring 	that 	the 	employer
does 	not 	impose 	punishment 	unjustly.
The 	PERB 	has 	followed Weingarten 	in a 	situation 	quite
similar 	on 	its 	facts. 	In SEIU v. 	Marin Community College
District 	(11/19/80) 	PERB Decision No. 	145, 	an employee was
called 	to a meeting 	with 	his 	supervisor 	to discuss 	an 	incident
in 	which 	he 	had 	allegedly 	engaged 	in 	a 	shouting 	match 	and made
physical contact with 	another 	supervisor. 	The 	employee 	refused
to 	meet 	without a 	union 	representative 	because 	he 	believed 	that
discipline 	could 	result. 	He 	was 	subsequently 	reprimanded, 	both
9 29 U.S.C. sec. 	157.
25

for 	the 	original misconduct 	and 	for 	the 	refusal 	to meet 	with
his 	supervisor. 	The 	Board 	found 	both 	reprimands 	to 	be 	in
violation of section 3543.5(a).
The 	Association 	urges 	a 	similar 	application 	of Weingarten
in the present case on the grounds 	that Collins, 	Furriel, 	and
Guerrero 	had 	reason 	to 	believe 	that 	the 	proposed 	schedules 	were
a 	form of 	discipline 	for 	their 	complaints 	about 	the 	management
of 	the 	Department 	and 	for 	their 	participation 	in 	the 	grievance
proceedings. 	While 	the 	record 	shows 	that 	the 	three 	instructors
may 	have 	had 	reason 	to 	fear 	an 	adverse 	impact 	in 	the 	form of
less 	desirable 	hours 	and 	greater 	course preparation, 	not 	every
adverse 	impact 	on 	an 	employee's 	work 	situation 	can 	be
classified 	as 	disciplinary 	action 	under 	Weingarten. 	The 	NLRB
has 	construed 	the 	term 	"disciplinary action" 	quite 	narrowly,
limiting 	it 	to punishment 	for 	poor 	work 	performance or 	other
misconduct. 	For 	example, 	a recent 	case 	found 	that 	"fitness 	for
duty" 	examinations 	prompted 	by 	excessive 	absenteeism 	and
intended 	for 	use 	in determining 	work 	assignments 	could 	not 	be
considered 	as disciplinary 	action. 	U.S. 	Postal Service 	(1980)
252 NLRB No. 	14 	[105 LRRM 1200]. 	In the present case, 	the
record 	contains 	nothing 	to 	indicate 	that 	the 	meetings 	were
called 	for 	the 	purpose 	of 	discussing 	poor 	performance 	or 	other
punishable 	conduct. 	The meetings 	therefore 	are 	not of 	the 	type
to which Weingarten 	rights 	of 	union 	representation 	attach.
26

Nonetheless, 	the PERB 	in Marin Community College District,
supra, 	did 	not 	state 	that 	representational rights 	under 	the
EERA extend 	only 	to 	the 	limits 	of Weingarten. 	Federal
authorities 	are 	a 	useful 	starting 	point, 	but 	they do not
establish 	the 	boundaries 	of public 	employees' 	representational
rights.10 The 	right 	to 	be 	represented 	under 	the 	EERA 	is
specifically 	mentioned 	in 	section 	3543 	without 	limitation 	to
discipline or 	to 	investigatory 	interviews. 	Rather, 	it extends
broadly 	to 	cover 	"all matters 	of 	employer-employee 	relations."
In addition, 	section 3543.1(a) 	grants a distinct right of
representation 	to 	employee 	organizations 	which 	does 	not 	appear
in the NLRA.
The 	right 	of 	representation 	under 	the 	EERA thus 	extends
situations 	not 	covered 	by Weingarten 	itself.11 However, 	this
does 	not 	mean 	that Weingarten 	should 	not 	be 	followed with
respect 	to 	issues 	other 	than 	the 	types of meetings 	for 	which
the 	right attaches. 	For 	example, 	Justice Brennan wrote 	in his
majority 	opinion 	that:
1 0 See 	Social Worker's 	Union 	v. 	Alameda 	County Welfare
Department 	(1974) 	11 Cal.3d 	382, 	decided 	under 	the
Meyers-Milias-Brown 	Act 	(Government 	Code 	section 	3500 	et 	seq.)
11Neither 	the 	PERB 	nor 	any 	court 	has 	precisely defined
the 	scope 	of 	this 	expanded 	right 	in 	the public 	sector.
27

Exercise 	of 	the 	right may 	not 	interfere 	with
legitimate 	employer 	prerogatives. 	The
employer 	has 	no 	obligation 	to 	justify 	his
refusal 	to allow union 	representation, 	and
despite 	refusal, 	the employer 	is 	free to
carry 	on 	his 	inquiry without 	interviewing
the 	employee, 	and 	thus 	leave 	to 	the 	employee
the 	choice 	between 	having 	an 	interview
unaccompanied 	by his 	representative, 	or
having 	no 	interview 	and 	foregoing 	any
benefits 	that 	might 	be 	derived 	from
one 	. . . . 	88 	LRRM at p. 	2691.
Nothing 	in 	the 	EERA 	indicates 	that 	this 	policy 	should 	not
apply where 	similar 	employer 	prerogatives 	exist.12 In 	the
present case, 	for 	example, 	there 	is no 	indication that 	the
employer 	could 	not 	have 	acted 	without 	any meeting 	at 	all.
The 	record 	shows 	that 	the 	first 	meeting originated 	in a memo 	to
the 	instructors 	from a 	District 	administrator 	indicating 	that
alternative 	schedules would 	be 	discussed. 	The 	later 	meetings
at 	which 	the 	representation 	issue 	arose 	were 	set 	by 	agreements
between 	Jenkins 	and 	the 	instructors 	to postpone 	their
discussion. 	At 	this point, 	the 	District did not 	insist 	that
the 	instructors 	attend 	a 	meeting 	without 	their 	representative.
Nor 	did 	the 	District 	reprimand 	them or 	take any other 	action 	in
12Such 	prerogatives 	do not 	exist 	in 	the 	public 	sector 	in
discipline 	for misconduct, 	faculty evaluation, 	or other
situations 	in which 	employers 	generally do have 	an obligation
to 	hold 	an 	interview or 	hearing 	before 	taking 	action. 	But 	the
present 	case 	is 	not of 	that 	sort.
28

retaliation 	for 	their 	desire 	to 	be 	represented. 	Instead, 	the
District 	exercised 	belatedly 	its 	prerogative 	not 	to meet 	with
them at all. 	Brennan's 	reasoning 	indicates 	that 	the 	right of
representation does 	not 	override 	the 	exercise 	of 	this
prerogative.
Since 	the 	District 	did 	not 	engage 	in 	conduct which 	could
constitute 	interference with 	the 	right of 	representation, 	it 	is
unnecessary 	to 	determine 	whether 	or 	not 	the 	particular 	subject
matter 	of 	the 	meeting 	fell 	within 	the 	statutory meaning 	of
"employer-employee 	relations." 	Hence, 	even 	if an 	instructor's
course 	schedule 	is a matter 	of employer-employee 	relations, 	the
District 	did 	not 	violate 	section 	3543.5 (a) 	by expressing 	its
unwillingness 	to conduct 	the meeting 	in 	the presence 	of an
Association 	representative.
The 	District's 	conduct 	also 	did 	not 	deny 	the 	Association
its 	right 	to represent 	the 	three 	instructors. 	Once 	the
District exercised 	its prerogative 	not 	to meet, 	there was 	no
meeting 	in 	which 	the 	Association could 	represent 	its 	members.
There was 	therefore 	no denial of Association 	rights 	in
violation of section 3543.5(b).
Accordingly, 	the 	allegations 	pertaining 	to 	the 	right of
representation 	are 	dismissed.
29

6. 	The 	Relocation of Furriel's Office
The 	second 	amendment 	to 	the Association's 	charge 	alleges
that 	the 	District 	took 	further 	retaliatory 	action 	against
Furriel when 	it 	relocated 	his 	office 	from 	the 	academy 	to 	the
main campus. 	Again, 	the Association can point 	to 	the 	filing of
the 	grievance 	as protected 	activity preceding 	this 	action. 	In
addition, 	Furriel was 	the primary complainant 	in 	the 	unfair
practice 	charge 	which had 	already 	been 	filed 	and 	once 	amended.
Applying 	the Carlsbad 	test, 	the Association has not,
however, 	established 	that 	the 	office 	change was 	"inherently
destructive" 	of 	employee 	rights. 	Furriel did 	not have a high
profile 	as 	an Association 	activist. 	And 	the 	timing of 	the
District's 	action 	does 	not 	clearly 	indicate 	retaliation. 	The
decision 	to 	relocate 	Furriel's 	office 	was 	made 	some 	two months
after 	the 	filing 	of 	the 	amended 	unfair 	practice 	charge 	and 	the
completion 	of 	the 	grievance 	committee's 	proceedings.
The 	charge 	therefore 	falls 	under 	the 	"slight 	harm" 	prong of
the Carlsbad 	test, 	and 	the 	District's 	business 	justification
must 	be 	considered. 	The District 	offers 	as a 	justification 	its
acquisition 	of 	a computer 	to 	perform certain 	functions 	in 	the
academy. 	The 	record 	shows 	that 	Pantaleoni 	considered 	a 	number
of 	factors, 	including a 	reasonable 	belief 	that 	smoke would 	be
harmful, 	and 	concluded 	that 	a 	faculty office was 	the 	best
location 	for 	the 	computer. 	Furriel was 	chosen 	as 	the
30

instructor 	to 	be 	moved 	because 	he 	would 	not 	be 	operating 	the
computer, 	had 	no 	administrative duties 	in the academy, 	and was
the 	only 	instructor 	with 	an 	academy office 	and 	classes 	on 	the
main campus.
The 	District 	has offered 	a credible 	explanation 	for 	the
need 	to move 	an 	instructor 	and 	for 	the 	choice of 	Furriel. 	The
tie 	between 	the 	arrival of 	the 	computer 	and 	the 	decision 	to
relocate 	Furriel 	is clear 	and 	immediate. 	The Association's
argued 	nexus 	between 	that 	decision 	and 	previous protected
activity 	is 	less obvious 	and more 	remote. 	The 	balance
therefore 	tips 	in 	favor 	of 	the District, 	and 	no violation of
section 	3543.5(a) 	is 	found.
The 	Association 	also 	alleges 	violations 	of 	section
3543.5(b) 	and 	(c) 	but has presented 	no supporting 	evidence or
argument. 	The Association's 	allegation 	is 	therefore dismissed.
PROPOSED 	ORDER
Based on 	the 	findings of 	fact, 	conclusions 	of law, 	and 	the
entire 	record 	in 	this case, 	the 	unfair 	practice 	charge 	against
the 	Rio 	Hondo Community College 	District 	is 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this Proposed 	Decision and 	Order 	shall
become 	final on 	April 	21, 	1981 unless 	a party files 	a timely
statement of exceptions within 	twenty 	(20) 	calendar 	days
31

following 	the 	date of 	service 	of 	the 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
April 21, 	1981 	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 Administrative Code, 	title 8, part 	III, 	sections
32300 and 	32305, 	as amended.)
DATED: 	APRIL 1, 	1981
BRUCE 	BARSOOK
Hearing 	Officer
32