Central Union High School District (PERB 0324E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLIAM T. 	BAIRD,
Charging 	Party,
v.
CENTRAL 	UNION HIGH 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-477
PERB Decision No. 	324
June 30, 	1983
Appearances: 	William T. 	Baird, 	in Pro Per; 	Edward R. 	Kandler,
Attorney 	(Breon, Galgani, 	Godino & O'Donnell) 	for Central Union
High 	School 	District.
Before Gluck, 	Chairperson; 	Morgenstern and Burt, 	Members.
DECISION
GLUCK, 	Chairperson: 	William T. 	Baird 	excepts 	to the
dismissal 	of 	his 	charge 	that he was 	unlawfully discriminated
against 	because 	of 	his 	participation 	in 	activities 	protected 	by
the Educational 	Employment Relations Act 	(EERA).l He claims
that 	the 	suggestion made 	by 	the 	administrative 	law 	judge 	(ALJ)
that 	the number 	of witnesses be 	limited 	in order 	to avoid
cumulative 	testimony 	denied 	him 	the 	opportunity 	to 	present
evidence 	of 	the Central 	Union High 	School 	District's 	(District)
unlawful 	motive 	and 	that 	certain 	testimony 	adverse 	to 	his 	case
was perjured. 	He requests 	that 	the hearing be reopened 	to
permit 	him 	to produce 	such 	additional 	evidence.
1EERA 	is 	codified 	at Government 	Code 	section 	3540 	et 	seq.
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The District 	contends 	that 	the parties, 	during a
pre-hearing 	informal 	conference, 	agreed 	to 	the ALJ's
suggestion, 	and requests 	that 	it be 	awarded attorney's 	fees 	and
costs 	incurred 	in 	defending 	against 	the 	charge 	and 	the 	instant
appeal.
FACTS
William T. 	Baird has 	been an 	employee 	of 	the District 	since
1963. 	He has 	taught a 	variety of 	subjects 	and had 	served as
vice principal 	of 	Central High 	School 	from February 2, 	1976 	to
the end of 	the 1978-1979 	academic year. 	In 1979, 	the District
appointed 	Byron Gavrilis 	to 	the 	joint 	position 	of 	District
superintendent 	and principal 	of 	Central 	High 	School. 	To 	afford
Gavrilis 	the opportunity 	to 	select 	his 	own 	staff, 	the District
did not 	renew Baird's 	contract as 	vice-principal. 	Baird
returned 	to 	teaching full 	time at Central. 	In 	the 	fall 	of
1980, 	the District transferred Baird, 	under protest, 	to
Pershing High 	School.
In 1979, 	following his return 	to fulltime teaching, 	Baird
became 	an 	outspoken 	critic 	of 	the District's 	new
superintendent. 	He 	criticized 	the 	new administration 	for
alleged 	misuse 	of 	student 	body 	funds 	and 	disputed 	the
superintendent's 	decisions 	to 	reassign 	an 	English 	teacher,
cancel 	a 	remedial 	reading program and 	schedule 	driver 	training
classes 	during school hours. 	In addition, 	he assisted several
administrative 	secretaries 	in 	the 	filing 	of 	grievances.
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In May 1980, 	largely because of 	these actions, 	Baird was
elected president 	of 	the 	Central 	Union 	Faculty Association
(Association), 	the exclusive representative of the District's
teachers. 	At the 	time, 	he was not a member 	of 	the California
Teachers Association, 	with which 	the 	local 	organization was
affiliated. 	He continued 	in 	office 	only until
September 	23, 	1980, 	at which time he resigned because of his
transfer 	to Pershing.
On October 	22, 	1981, 	Gavrilis 	issued Baird a reprimand for
failing 	to 	file a 	law enforcement 	report 	in response 	to a
verbal 	threat made 	against 	him by 	a 	student. 	The 	reprimand
accused 	Baird 	of 	being 	negligent 	and 	in 	possible 	violation 	of
Education 	Code 	section 	44014 	which 	requires 	that 	such 	threats
be 	reported. 	Baird 	contends, 	and 	the 	hearing 	officer 	found,
that 	the 	reprimand 	was 	unjustified 	because 	Baird 	had 	not 	heard
the 	threat being made.
In an effort 	to 	establish a pattern 	of 	District 	animus
against 	employees 	engaged 	in protected activity, 	Baird
presented 	evidence 	of 	alleged 	past 	retaliations 	against 	three
other 	employees. 	Richard Mullen, 	an Association officer 	and
chief negotiator, 	testified that 	in 1979, 	after 	a difficult
series 	of negotiations, 	he was 	removed as 	chairman of 	the
agriculture 	department 	and 	was 	later 	transferred 	from 	Central
to Pershing. 	However, 	in 	testimony 	the ALJ 	found 	to be
uncontroverted, 	Gavrilis 	testified 	that 	the District 	removed
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Mullen 	from his 	position 	because 	of 	complaints 	from members 	of
the Boosters Club, 	board members, 	students 	and teachers 	about
turmoil 	in 	the agriculture department. 	Gavrilis 	further
testified 	that 	one year 	later, 	the 	District 	transferred 	Mullen
after 	the 	turmoil 	did not abate. 	Additionally, 	Gavrilis
learned 	from a 	teacher 	that 	she 	was 	resigning primarily 	because
of Mullen's 	temperament.
During the fall of 1980, 	Tom Flynn, 	a 	two-term president of
the Association, 	received a 	letter 	of 	reprimand for 	leaving 	his
classroom unsupervised. 	However, 	the record 	indicates 	that 	the
letter 	was 	withdrawn 	after 	Gavrilis 	learned 	that 	Flynn 	had 	not
left his 	study hall 	class 	unattended.
Baird 	also 	asserted 	that Rena Durbahn, 	a 	sometime
Association activist, 	was 	involuntarily 	reassigned 	from her
position 	as 	chairperson 	of 	the physical 	education 	department 	to
a 	teaching position 	in 	the English 	department. 	The ALJ 	found
that 	it was 	the 	uncontradicted 	testimony 	of Gavrilis 	that
Durbahn 	had requested 	the 	reassignment. 	Durbahn was 	not 	called
as a witness.
The ALJ 	found 	that 	Baird 	failed 	to 	prove 	that 	he 	had been
disciplined 	for 	exercising 	protected 	activity. 	Although 	he
concluded 	that 	Baird 	had 	not 	heard 	the 	student's 	threat 	made
against 	him and 	that 	the 	reprimand was 	unjustified, 	he
recognized 	that 	"the 	charging 	party must 	do 	more 	than 	simply
show that 	the 	discipline at 	issue was without 	just 	cause."
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Moreland Elementary 	School 	District 	(7/27/82) 	PERB 	Decision
No. 227.
While 	the ALJ 	did 	find 	that Baird 	had 	some 	"minimal"
participation 	in protected 	activity, 	he 	could 	not 	conclude 	that
such 	activity was 	a motivating 	factor 	in 	the District's
action. 	He 	observed 	that 	the 	reprimand 	occurred 	more 	than 	a
year 	after 	Baird 	had 	assisted 	in 	the 	filing of 	grievances 	for
the 	administrative 	secretaries, 	criticized 	the 	superintendent
for 	his 	various 	decisions 	and 	resigned 	as Association 	president
and 	that, 	during 	the 	intervening period, 	he had 	not 	represented
the Association 	in any meeting 	with 	the 	superintendent 	or 	other
school official. 	Finding Gavrilis' offer 	of 	legitimate
business 	justification 	for 	the 	District's 	treatment 	of 	the
other 	activists 	to be 	uncontroverted, 	the ALJ did 	not 	find
sufficient 	evidence 	to permit 	a 	finding 	of 	unlawful motivation.
DISCUSSION
The 	record 	is 	completely 	silent 	on 	the 	matter 	of 	the ALJ's
alleged 	suggestion 	that 	the 	number 	of 	witnesses 	be 	limited 	to
avoid cumulative 	testimony 	or 	the 	parties 	agreement 	to 	that
effect.2 Granting 	either 	to 	be 	the 	case, 	we 	find 	in Baird's
statement of 	exception 	no 	basis 	for 	reversing 	the 	decision 	to
2Informal 	conferences 	are 	conducted 	primarily 	as
confidential 	settlement proceedings 	and 	the 	contents 	of 	such
meetings do 	not 	appear 	in 	the 	record 	of 	the 	ensuing 	hearing.
See 	PERB 	rule 	32650, 	codified 	at California Administrative
Code, 	title 8, 	section 32650.
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dismiss his charges or permitting him to introduce additional
evidence. 	An order limiting cumulative evidence is proper.
Witkin, California Evidence 2d, 	1108. 	See also California
Evidence Code section 35 2.
Testimony to establish that adverse testimony was perjured
is neither 	"cumulative" 	nor 	repetitious and cannot be assumed
to have been discouraged by the ALJ's recommendation. 	Assuming
that Baird was 	concerned 	that Gavrilis' testimony had
effectively rebutted his own evidence, 	he would not have been
precluded from presenting other witnesses as 	to the same events
in the belief or hope that they would be 	insulated from similar
rejoinder. 	Gavrilis1 testimony at least tended to remove the
cumulative nature of such further offer of proof. 	In any
event, Baird made no attempt to produce evidence on the basis
that 	it would be noncumulative and has not established that any
such effort on his part would have been 	rebuffed by the ALJ.
He does 	not claim that the evidence he now wishes to present is
newly discovered or 	was otherwise 	unavailable during 	the
hearing. 	His request is denied.
Baird also excepts to the ALJ's failure 	to find that the
District violated EERA subsection 	3543.5(a)3 by 	its
3Subsection 	3543.5(a) 	reads:
It shall be unlawful for a public school
employer to:
(a) 	Impose or 	threaten to impose reprisals
on employees, 	to discriminate or threaten to
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unjustified 	reprimand 	resulting 	from the verbal 	threat
incident. 	The ALJ applied PERB precedent holding that lack of
justification for employee discipline does 	not of 	itself
inevitably warrant a finding 	that the Act had been violated and
that additional 	evidence may be 	required 	that 	the 	unjust
discipline was motivated by anti-union 	animus.4 The 	record
supports 	the ALJ's 	finding 	that Baird failed to meet his
evidentiary burden.
We decline to grant the District's request for attorney's
fees and costs. 	On its face, Baird's charge was not without
arguable 	merit.5 He was 	aware of the various actions 	taken
against other 	union activists and there 	is no evidence that he
knew of 	the business justifications 	that Gavrilis would offer
in explanation. 	It was not unreasonable for him, 	therefore, 	to
suspect 	the District's motives when 	it reprimanded him for 	an
incident in which he played no part.
The claim that Baird 	acted solely to harass 	the District is
based on 	the District's 	reliance on hearsay 	information that
several attorneys declined 	to represent Baird 	in these
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
4Moreland 	Elementary School District, 	supra.
5See Chula Vista City School District 	(11/8/82) 	PERB
Decision No. 	256 for discussion of when attorney's fees may be
awarded.
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proceedings. 	The 	District neither 	identifies 	the 	attorneys nor
offers 	evidence of 	their 	reasons 	for 	allegedly 	refusing 	to
represent him. 	Rather, 	it 	simply assumes 	that 	if 	the attorneys
declined, 	it was because Baird's 	charges 	were without arguable
merit.6
Similarly, 	we 	do 	not 	find Baird's 	appeal patently without
merit. 	His objection 	to 	the ALJ's proposed 	ruling 	on 	the
matter 	of his 	reprimand 	was 	based on 	his 	own view 	that 	the
absence 	of 	justification 	supported 	a 	finding 	of 	unlawful
motive. 	The 	adverse 	conclusion 	reached 	by 	the ALJ 	and 	by 	this
Board 	do 	not 	convert 	an 	arguable exception 	into a 	frivolous
sortie.
ORDER
The 	complaint 	issued 	on 	the 	charges 	filed 	by
William T. 	Baird 	against 	the 	Central Union High 	School 	District
is DISMISSED 	in 	its 	entirety.
The 	request 	by 	the Central Union High 	School District 	for
attorney's 	fees 	and 	other 	costs 	incurred 	in 	defending 	against
the 	complaint 	and 	appeal 	from 	its 	dismissal 	is DENIED.
Members Morgenstern 	and Burt 	joined 	in 	this 	Decision.
6Reber v. Beckloff 	(4/3/70) 	6 Cal.App.3d, 	341 	[85
Cal.Rptr. 	803] 	relied upon by 	the District 	is clearly
distinguishable. 	There, 	the 	court granted damages 	in addition
to costs 	where 	the 	appeal was 	found 	to be 	frivolous 	because 	it
was 	"obviously 	taken 	for 	the 	purpose 	of 	harassing 	the
respondent 	and 	her 	attorney", 	had previously been 	litigated 	and
adjudicated 	and 	was 	the 	sixty-fourth 	appeal 	filed 	on 	the 	same
issues 	by 	the 	appellant.
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