Ravenswood City School District (PERB 0469E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

RAVENSWOOD TEACHERS ASSOCIATION,
CTA /NEA ,

Charging Party, Case No. SF-CE-805
ve PERB Decision No. 469
RAVENSWOOD CITY SCHOOL DISTRICT, December 28, 1984

Respondent.

Appearances: Ramon E. Romero, Attorney for Ravenswood Teachers
Association, CTA/NEA; Millner & McGee by Patricia W. Mills for
Ravenswood City School District.

Before Hesse, Chairperson; Jaeger and Morgenstern, Members.
DECISION

MORGENSTERN, Member: The Ravenswood City School District
(District) excepts to the attached proposed decision issued by
an administrative law judge (ALJ) of the Public Employment
Relations Board (PERB or Board). In the underlying case, the
Ravenswood Teachers Association, CTA/NEA (Association), charged
that the District violated section 3543.5(a) and (b) of the
Educational Employment Relations Act (EERA) + when the
District threatened to initiate civil action against an
employee to recover an alleged salary overpayment if that

employee continued to pursue her grievance to arbitration.

lmERA is codified at Government Code section 3540 et

seq. All statutory references herein are to the Government
Code unless otherwise indicated.

FACTUAL SUMMARY
The findings of fact as set forth in the ALJ's proposed
decision are free from prejudicial error and are adopted by the
Board. 	Insofar as the District's exceptions take issue with
the ALJ's factual conclusion, the Board defers to the
credibility determinations reached by the ALJ. See Santa Clara
Unified School District (9/26/79) PERB Decision No. 104.
Specifically, in accordance with the rule articulated in
Santa Clara, we defer to the ALJ's credibility determination
and discount Vincent Brown's version of the conversation he
witnessed between Dr. Mildred Browne and Sheila Dowds. Because
the ALJ had the opportunity to observe Brown's demeanor and to
directly question Brown himself, we find that his assessment of
Brown's testimony will be credited as the best, first-hand
weighing of the evidence available to the Board. We also defer
to the ALJ's assessment of the testimonial conflict between
Dowds and Dr. Browne. 	For the reasons articulated in the
attached decision, we adopt the ALJ's determinations of
credibility.
As a final factual dispute, the District asserts that the
ALJ failed to resolve the conflict in testimony regarding the
conversation between Association Attorney Ramon Romero and
Vincent Brown. The District is dissatisfied with the ALJ's
conclusion that:
Leaving aside the ambiguous and conflicting
evidence about the Romero-Brown conversation,
2

the other deficiencies relevant to this
witness preclude trustworthy use of his
testimony . 	(Proposed Decision, p. 12.)
Having adopted the ALJ's conclusion that Brown's testimony was
indeed untrustworthy, we find no basis on which to compel the
ALJ to resolve a testimonial conflict which he found
unnecessary to his assessment of Brown's credibility.
Moreover, even assuming that Brown's version of Romero's
comments was accurate, those statements do not go beyond the
bounds of an attorney's vigorous advocacy and trial preparation
on his/her client's behalf. <
DISCUSSION
The District asserts that the ALJ erred in reaching the
legal conclusion that Dr. Mildred Browne's statement to Sheila
Dowds constituted an unlawful threat. We find no merit to that
claim. As is fully explicated in the ALJ's proposed decision,
Dr. Browne's statement can reasonably be viewed as an unlawful
threat. Relying on the Board's decision in Rio Hondo Community
College District (5/19/80) PERB Decision No. 128, Dowds could
reasonably have taken Dr. Browne's remarks to be a threatening
expression of the District's intentions. Crediting Dowds'
version of the facts, Dr. Browne was warning Dowds that, if she
persisted in exercising her right to proceed to arbitration of
According to Brown, Romero told him that Brown's
testimony would not help Sheila Dowds, that he (Romero) would
be surprised to see him at the hearing, and that he (Romero)
would take him apart on the stand and would bring out Brown's
relationship with Dr. Mildred Browne.
3

her dispute, then the District would take legal action to
recover money wrongfully tendered.
The District argues, citing Public Service Electric & Gas
(1983) 268 NLRB 54 [115 LRRM 1006, 1007] that it is not barred
from taking action against an employee on matters that come to
light in the course of arbitrating a dispute. The District's
legal assertion is correct. Indeed, the ALJ's decision
expressly restates that position. The District's argument
lacks merit, however, because the factual circumstances in the
instant case do not fall within the legal principle articulated
above. First, its agent, Dr. Browne, did not take action
against Dowds to recover the overpayment. The District never
proceeded against Dowds. 	Neither did Dr. Browne merely advise
Dowds that the District was going to initiate the overpayment
suit. 	She said more than that. She conditioned the District's
overpayment lawsuit on Dowds' exercise of EERA rights.
3In addition to crediting the ALJ's finding that
Dr. Browne made the expressly threatening statement, we also
observe that Dr. Browne admitted asking Dowds about a possible
overpayment. While such an inquiry directly levels no threat,
it may well have been perceived as such by Dowds. Certainly,
with the arbitration date quickly approaching and with knowledge
of her colleague Lorna Hurd's experience, Dr. Browne's mere
inquiry could have carried with it a less-than-concealed threat.
while Dr. Browne was at first a supporter of Dowds'
grievance, she withdrew that support when her superiors
disapproved and, when she contacted the grievant to discuss the
question of a possible overpayment suit that could result from
prosecution of the grievance, she did so at the request of
District hierarchy. She was without doubt, then, serving as
the District's agent.

Secondly, the Public Service case rests on the availability of
a reasonable claim. As the ALJ noted, the overpayment claim
was stale and based on a claim contrary to a position it had
taken earlier. For both of these reasons, the District's
contention is without merit.
Finally, relying on the ALJ's instruction that a party
seeking a briefing continuance must first contact the other
party, the District charges that the ALJ held the District to
this rule but permitted the Association's attorney to get a
one-day continuance without getting the District's agreement.
While the record before us does not fully detail these events,
it appears that the District's request for a continuance was
sought because its attorney was in a serious car accident.
While it is not clear whether the ALJ was so advised, it is
asserted that at least one physician advised Patricia Mills,
the District's attorney, not to return to work for several
months. 	Under such circumstances, where it is reasonable to
assume that a lengthy delay might ensue, the ALJ's requirement
that the District get the Association's agreement for the
continuance is not illogical. In contrast, although again not
specifically asserted, it appears that the continuance
requested by the Association's representative was for a one-day
extension of time. Given the minimal amount of inconvenience
such a delay would bring, it was not unreasonable for the ALJ
to grant such a request prior to receiving the District's
agreement.
5

For these reasons and because we find no prejudice alleged
or demonstrated as a result of the alleged disparate treatment,
we do not disturb the ALJ's rulings but, rather, affirm his
factual and legal conclusions.
ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in this case, it is hereby ORDERED that
the Ravenswood City School District and its representatives
shall :
1. CEASE AND DESIST FROM:
a. 	Threatening to take court action, without justification,
if an employee grievance is pursued to an arbitration hearing;
and
b. 	Interfering with the right of the Association to
represent a grieving employee by threatening, without
justification, to take court action if an arbitration hearing
is pursued.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
a. Within thirty-five (35) days following the date this
Decision is no longer subject to reconsideration, prepare and
post at its headquarters offices and in conspicuous places at
the locations where notices to certificated employees are
customarily posted, copies of the Notice attached as an
Appendix hereto, signed by an authorized agent of the
employer. Such posting shall be maintained for a period of
6

thirty (30) consecutive workdays. Reasonable steps shall be
taken to insure that this Notice is not reduced in size,
defaced, altered or covered by any material.
b. Written notification of the actions taken to comply with
this Order shall be made to the regional director of the Public
Employment Relations Board in accordance with her instructions.
It is further ORDERED that all other alleged violations in
the complaint are DISMISSED.
Member Jaeger joined in this Decision.
Chairperson Hesse's concurrence begins on page 8.
7
,

Hesse, Chairperson, concurring: I concur with the finding
that the District violated EERA section 3543.5 (a) and (b) . I
do, however, find that Dr. Browne's interference began prior to
her June 13, 1983 statements to Dowds.
Dr. Browne was the Director of Student Services and Dowds'
supervisor when Dowds filed her grievance in 1982. As pointed
out by the ALJ, Dr. Browne's conduct can be imputed to the
employer. Evidence shows that Dr. Browne assisted Dowds in
filing and processing the grievance against the District.
While her motive was unquestionably to help Dowds, Dr. Browne's
actions interfered with Dowds' protected rights.
While it is proper for a supervisor to contact the
appropriate officials in an attempt to correct a perceived
error, it is contrary to established management procedures to
be directly involved in assisting an employee in processing a
grievance. 	The effect of such a deviation is twofold. First,
it places management in the position of deciding what issues
are important in the grievance, and to the grievant.
question arises as to whose issues or agenda are being pursued
in the grievance. This directly interferes with an employee's
protected right to define his own grievance, and is a violation
of section 3543.5 (a) .
Second, by assisting Dowds, Dr. Browne was acting as her
representative, not her supervisor. The Ravenswood Teachers
Association was the exclusive representative of Dowds'
8

bargaining unit. Such assistance denies the Association its
section 3543.1 right to represent that unit in its employment
relations with the public school employer by undermining its
authority in interpreting and policing the collective
bargaining agreement. Such interference violates section
3543.5 (b) .
Hence, while I agree with the majority's conclusion that
Dr. Browne's June 13 discussion was coercive, I would find
actual interference began in 1982.

APPENDIX
NOTICE TO 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. SF-CE-805,
Ravenswood Teachers Association, CTA/NEA v. Ravenswood City
School District, in which all parties had the right to
participate, it has been found that the District violated
Government Code section 3543.5(a) and (b) . (All other alleged
violations in the complaint have been dismissed.)
As a result of this conduct, we have been ordered to post
this Notice, and will abide by the following. We will:
CEASE AND DESIST FROM:
a. 	Threatening to take court action, without justification,
if an employee grievance is pursued to an arbitration hearing;
and
b. 	Interfering with the right of the Association to
represent a grieving employee by threatening, without
justification, to take court action if an arbitration hearing
is pursued.
Dated : 	RAVENSWOOD CITY SCHOOL DISTRICT
By
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST
THIRTY (30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY
MATERIAL .

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
RAVENSWOOD TEACHERS ASSOCIATION
CTA/NEA ,
Charging Party,
v .
RAVENSWOOD CITY SCHOOL DISTRICT,
Respondent.
Unfair Practice
Case No. SF-CE-805
PROPOSED DECISION
(1/26/84)
Appearances: Ramon E. Romero, attorney for the charging party
Ravenswood Teachers Association, CTA/NEA; Patricia W. Mills,
attorney (Millner & McGee) for the respondent Ravenswood City
School District.
Before: Barry Winograd, Administrative Law Judge.
PROCEDURAL HISTORY
On August 2, 1983, the charging party Ravenswood Teachers
Association, CTA/NEA (hereafter Association or RTA) filed an
unfair practice charge against the respondent Ravenswood City
School District (hereafter District) . The charge alleged that
a supervisor threatened that the District would file a court
action to recover a salary overpayment if an employee pursued
arbitration on a separate salary dispute. The charge also
alleged that the District's attorney spoke directly to the
employee about the pending case without first informing the
grievant's lawyer or securing consent. The Association charged
that this conduct violated sections 3543.5 (a) and (b) of the

Educational Employment Relations Act (hereafter EERA or
Act. ) 1
On August 3, 1983, PERB's general counsel issued a
complaint incorporating the allegations of the unfair practice
charge. The District filed its answer on August 30, 1983. The
answer admitted certain facts, generally denied the allegations
of unlawful conduct, and set forth several affirmative
defenses. Admissions, denials and defenses will be considered
below as relevant to this decision. An informal settlement
conference in September 1983 failed to resolve the dispute.
A formal hearing was conducted on October 27, 1983, at the
District's office in East Palo Alto, California. After
briefing continuances were requested by both parties, and a
second settlement conference in December 1983 was unsuccessful,
post-hearing briefs were filed, and the case was submitted on
January 17, 1984.
The EERA is codified at section 3540 et seq. of the
Government Code and is administered by the Public Employment
Relations Board (hereafter PERB or Board). Unless otherwise
stated, all statutory references in this decision are to the
Government Code. Section 3543.5 provides, in relevant part,
that it shall be unlawful for a public school employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
2

FINDINGS OF FACT
A. 	Background.
Sheila Dowds was hired in fall 1979 as a school
psychologist in the District. Initially she was a long-term
substitute. The next year she was granted permanent status.
Two other school psychologists referred to in this case are
Vincent Brown, a District employee for over 20 years, and
Lorna Hurd, hired shortly after Dowds.
School psychologists have been supervised since 1980 by
Dr. Mildred Browne, the Director of Student Services. For
several years before her promotion, Dr. Browne was also a staff
psychologist.
In fall 1982 Dowds initiated a grievance claiming that she
was misplaced on the salary schedule because she had not been
given credit for her prior experience as a school
psychologist. In December, the grievance was denied by the
superintendent on the ground that past practice did not support
Dowds' claim for prior service credit. 2 Around the New Year,
binding arbitration was requested.
2In other respects, the superintendent conceded that
Dowds was entitled to accrued seniority and other contract
benefits based on a date-of-hire retroactive to her beginning
work as a substitute. However, coupled with these remarks was
the comment that her initial salary placement at "Step 6,"
rather than "Step 1" for substitutes, was consistent with the
District's long-standing interpretation of one section of the
contract, despite apparently conflicting language in another
W

One of Dowds' arguments in her grievance was that
fellow-psychologist Hurd had been given credit for her prior
experience. The District admitted that this had occurred, but
claimed it was an error inconsistent with past policy and that
no psychologist hired before Dowds had been given such credit.
Soon thereafter, in December 1982, the District wrote a letter
to Hurd requesting restitution of the alleged erroneous
overpayment. 	There is no evidence of further District action
to recoup the salary differential from Hurd until a small
claims action was filed on June 17, 1983.3
Dr. Browne supported Dowds' claim throughout the grievance
process. In addition to Dr. Browne's belief that past practice
justified Dowds' grievance, she also believed, as a matter of
moral principle, that prior experience should be rewarded when
an employee was hired. Among other things, Dr. Browne wrote a
letter in October 1982 in favor of Dowds' position. Dr. Browne
also urged Dowds to pursue the grievance to later stages, spoke
to the District's superintendent on Dowds' behalf, and gave
part of the agreement that would have allowed a lesser amount.
(See Charging Party Exhibit No. 1-K.)
3See Respondent's Exhibit No. 2. Upon the Association's
objection, when this exhibit summarizing dates relevant to
Dowds and Hurd was offered in evidence, only the second
paragraph referring to Dowds was received. However, since the
first paragraph of the letter concerns Hurd, whose personnel
situation is relevant, and there is no dispute as to
authenticity or the official capacity of the assistant
superintendent who wrote the letter, the document in its
entirety should be received in evidence as an admission.

Dowds the names and phone numbers of other school psychologists
who might be helpful witnesses.
In addition to Dr. Browne's grievance assistance in
1982-83, in April 1983 she helped Dowds carry out an assignment
for an advanced credential program Dowds was taking. Dowds
needed information about collective negotiations procedures in
education, and Dr. Browne put her in touch with the District's
attorney, Pat Mills. Thereafter, Mills and Dowds had a lengthy
conversation about the subject.
Dowds described her experiences with Dr. Browne as a close
working relationship but not as a friendship. 	Dowds conceded
that Dr. Browne was definitely supportive of the grievance, but
observed that they were not socially involved outside of
school. Dr. Browne's testimony was consistent with this
description.
Both also agreed that by the end of the 1982-83 school year
Dowds' attitude toward Dr. Browne had changed. Dowds
attributed the change to Dr. Browne's rejection in May 1983 of
Dowds' request that Dr. Browne testify at the upcoming
arbitration. Dr. Browne said she would be out of town and
unavailable, and that, in any event, she could only do what the
District's counsel permitted. For her part, Dr. Browne did not
observe a change in feeling until after Dowds had talked to her
attorney, Ramon Romero, in the days following the June 13, 1983,
discussion between Dr. Browne and Dowds. It was during this
5

discussion that Dr. Browne allegedly threatened Dowds with
court action. It was also on June 13 that attorney Mills
allegedly had unauthorized communications with Dowds.
Nevertheless, even after June 13, there is uncontradicted
evidence that Dr. Browne continued providing grievance
assistance to Dowds. First, Dr. Browne gave Dowds the phone
numbers of potential witnesses. Second, having heard Dowds on
June 13 express uncertainty about the degree of Romero's
preparation for the upcoming arbitration, Dr. Browne approached
a local Association grievance officer, Gene Small, to see if he
could intercede to help. Small was present at the hearing but
was not called as a witness.
Dowds' grievance arbitration was originally scheduled for
June 6 but was continued for about two weeks by agreement
between Mills and Romero. It is undisputed that Mills knew
Romero was representing Dowds as of June 13, the date of the
disputed discussions at issue in this case.
B. The District staff conference on June 13, 1983.
About one hour before Dr. Browne met with Dowds in the
morning of June 13, District personnel officials conferred with
attorney Mills. The purpose of the staff conference was to
review personnel documents in preparation for the arbitration.
Although Dr. Browne had not been previously involved in
management's case-planning, she attended the meeting under
orders from the superintendent. She was hesitant to
6

participate and, as noted, was hostile to a policy denying
credit for prior experience.
At the conference, the records of several previous
employees were reviewed. On the basis of this evidence,
Dr. Browne was persuaded that she had been mistaken in her
belief that prior service credit had been granted to others
before Dowds was hired. Dr. Browne described this as a "rude
awakening" which made her very upset. She felt she had misled
Dowds and had contributed to tension among District staff. On
principle, however, she still believed that prior experience
credit was deserved, even if past practice evidence did not
support her judgment.
Additionally, in the staff meeting, Dr. Browne was told
that the District had documentary materials from 1974
negotiations that showed the Association's agreement to reduce
the starting salary level of school psychologists, without
regard to prior experience.
Also during the meeting, in the course of reviewing
records, one official discovered that a question might be
raised about Dowds being overpaid when first hired as a
substitute. It was observed in a brief discussion that the
relevant policy and facts on this collateral issue were
uncertain, and that further investigation was needed.
According to Dr. Browne, there was no discussion of any court
2

action in relation to this issue, nor was there any reference
to the District's alleged overpayment to Hurd.
After Dr. Browne's lengthy review of the personnel records
she believed it might help matters if she spoke with Dowds
about the new information. At Mills' suggestion she agreed to
talk to Dowds right away, acting as a go-between, to see if the
case might be resolved or settled without going to
arbitration. Before doing this, Dr. Browne also asked Mills to
talk to Dowds, if Dowds was willing to meet once Dr. Browne had
relayed the facts she had just learned.
C. Dr. Browne's meeting with Dowds.
Dr. Browne returned to the building that housed the staff
psychologists and asked Dowds and Vincent Brown to meet with
her. Dr. Browne did not have any specific settlement proposal
to present, but wanted to spur a dialogue. She invited
Vincent Brown to participate believing that, as a long-time
District employee, he might have additional information about
the 1974 negotiations that were related to the salary placement
dispute. As it turned out, Vincent Brown had only a fuzzy
recollection and made few if any comments during the discussion.
The meeting with Dowds lasted about 10 to 15 minutes.
Dr. Browne reviewed the disconcerting information she had
learned at the earlier personnel conference and admitted her
mistaken belief about past practice. She believed that the
District had a strong case. Dr. Browne also mentioned that the

District claimed to have documents stemming from the 1974
negotiations that were relevant to the dispute about contract
intent. In this regard, she raised a question about whether
the Association was being consistent in acting on behalf of
Dowds and other psychologists.
At another point, Dr. Browne described the collateral issue
that had been raised of a possible overpayment when Dowds was
first hired as a substitute. Dr. Browne asked Dowds if she
could recall her salary scale at the time. (Dowds was hired as
a temporary replacement for Dr. Browne, who was on maternity
leave. ) A dispute about this part of the conversation is the
basis of one of the alleged violations in this case. It will
be considered in detail below.
Dr. Browne was emotionally distraught during the
discussion, at one point breaking down in tears. At the
hearing, Dr. Browne freely admitted her distress about her
previous error as well as her anxiety about the potential
ramifications of the personnel dispute in causing rancor among
the staff. For her part, Dowds was confused by the new
information and was concerned that the superintendent had not
discussed the case fully and fairly with her in fall 1982. 	In
light of these factors, and given her previous questions about
Romero's stage of preparation, Dowds wanted to find out more.
She agreed to return to the main administration building with
Dr. Browne to meet with the superintendent and Mills.

Dr. Browne urged this course even though, only minutes before,
Mills had momentarily interrupted the conference to tell
Dr. Browne that, on second thought, Mills was rejecting
Dr. Browne's earlier idea and could not confer directly with
Dowds . 4
D. The alleged court action threat.
The key dispute about the June 13 meeting involves Dowds'
claim that Dr. Browne threatened that the District would file a
court action on the alleged substitute overpayment if Dowds
pursued her case to arbitration. Dowds testified as follows:
Q. Okay. 	What else did she [Dr. Browne]
say?
A. Well, the gist was that they had a very
strong case and that I didn't have very much
of a chance fighting the District and that
if, and then she said that if I decided to
go through with it, the District would take
me to court to recover overpayment of salary
which they were claiming occurred the first
year that I worked as a long-term substitute
where I supposedly was paid too much, so
they were going to try to get that money
back from me.
Q. Had you ever heard of any alleged
overpayment of salary to you prior to this
meeting?
A. No, I hadn't. No.
Q. Okay. Did she explain the overpayment?
What else did she say about the overpayment?
4Dowds did not remember this interruption, as recalled by
Mills and Dr. Browne, but it makes sense as a transition
explaining Mills' later conduct declining to talk to Dowds
about the substance of the case. (See pp. 13-15, below.)
10

A. 	Just that, that's all, that they'd gone
over the salary and that I wasn't entitled
to as much as I was paid that year and if I
decided to go through with the arbitration
hearing, they would try to recover some of
that money from me by taking a court action.
Q. Okay. What did you say in response to
that?
. I said that I didn't believe they could
do that because I was familiar with what was
going on with Lorna Herd (phonetic) , that
they were recovering, trying to recover money
from her for alleged overpayment and just
from what I knew about her case, I didn't
believe that that would happen either to her
or to myself. So I said that, but Mildred
insisted that it could and it would.
Q.. What did she say?
A. She said, oh, yes, it will happen, that
will happen. 	(Reporter's Transcript,
pp. 26-27.)
Dr. Browne admitted asking Dowds about a possible
overpayment when Dowds was hired as a substitute. 	However ,
Dr. Browne unequivocally denied that she made any reference to
possible court action or to Hurd's situation. Indeed,
Dr. Browne testified that although she knew Hurd had a
grievance pending (not involving Dr. Browne), and that the
District had claimed an overpayment, she was unaware of any
court action against Hurd when these events occurred on June 13.
Vincent Brown, the third person at the meeting, also denied
that any court action was mentioned. However, his testimony
should be disregarded as unreliable (although not intentionally
false) . His overall demeanor was that of an unwilling,
11

hesitant witness who was nervous about saying the wrong thing.
Additionally, his recollection was vague and uncertain, even
about such an important uncontested point as Dr. Browne's
assessment that the just-disclosed evidence supported the
District's case. He also was a potentially biased witness who,
although friendly to Dowds, was, in regard to Dr. Browne, a
closer friend as well as a member of the same church and
godfather to one of her children.
Respondent argued at the hearing and in its brief that
Vincent Brown's credibility was enhanced because he testified
following an antagonistic phone coversation with Romero just
before the hearing in this case, and because his recollection
as stated to Romero was in accord with his later testimony
denying a court threat. Leaving aside the ambiguous and
conflicting evidence about the Romero-Brown conversation, the
other deficiencies relevant to this witness preclude
trustworthy use of his testimony.
After reviewing the testimony of Dowds and Dr. Browne, and
the context of events, it is found that Dr. Browne did refer to
possible court action by the District if the arbitration went
forward. First, although Dr. Browne's testimony was earnest
and careful, showing that she was trying to tell the truth, she
was very upset on June 13 and, in that agitated state of mind,
easily might not recall at a hearing months later a brief
comment about a potential court action. Certainly, Dr. Browne
12

mentioning an additional troubling facet that would strengthen
her argument in favor of resolving the dispute, was consistent
with her distress about the new grievance evidence and the need
for settlement. Second, given the close proximity to the
District's court action against Hurd, filed on June 17, it is
probable that a reference was made to comparable overpayment
litigation during the previous meeting with Mills and personnel
staff. Even if the District's administrators needed to
investigate further, and Dr. Browne overstated the employer's
intent, it strains belief that an eventual court option was not
mentioned at all. Finally, Dowds' testimony had the ring of
truth. In particular her clarity about the threat and her
doubt about the likelihood of successful court action jibed
with the District's earlier but unpursued attempt in
December 1982, which Dowds knew about, to recover an alleged
overpayment from Hurd. 5 Regardless of the factual finding
above, the legal effect of Dr. Browne's statement remains to be
determined.
E. The Dowds-Mills encounters.
Dowds and Dr. Browne returned to the main administration
building and, since the superintendent was out, found Mills.
Mills told Dowds, either directly or through Dr. Browne, that
Examined carefully, Dowds did not testify that Hurd had
already been sued as of June 13, an event that took place on
June 17, but only that the District was "trying to recover
money from her for alleged overpayment."
13

she couldn't talk about the case and that Dowds' questions,
prompted by Dr. Browne's disclosures, should be directed to
Romero as her lawyer. Dowds admitted in her testimony that
Mills would not discuss the case.
According to Dowds, Mills believed that Romero's phone
number was in her briefcase back in Dr. Browne's office in the
psychology section, and the group went over to call him. 6
When they arrived at Dr. Browne's office, Dowds testified that
a call was placed but Romero was out. (According to Mills and
Dr. Browne, the phone number couldn't be located and no call
was made.) Again, as Dowds admitted, during this last phase
Mills told Dowds that Mills couldn't talk directly to her--at
6One major testimonial conflict involved Dowds' claim
that, as the trio returned to the psychology offices, they
observed an RTA officer in the parking lot, which caused Mills
to tell Dowds that if anyone asked what they were doing
together, Dowds should say they were discussing negotiations.
Dowds understood this to refer to their earlier discussions
about her coursework and not to local negotiations with the
District. Both Mills and Dr. Browne denied that any
conversation took place in the parking lot. For the following
reasons, it is found that Mills did make the comment about
negotiations. 	First, the RTA officer persuasively testified
that although she could not overhear the group, their body
movement, slow walking pace and Dr. Browne's expressiveness,
led her to believe they were conversing. Second, in Mills'
pre-testimony notes she indicated merely that she could not
recall the alleged remark. Mills testified that only after her
recollection was refreshed by conversation with others about
the case did she determine that the remark was not made at
all. Third, the remark would have been consistent with Mills'
obvious self-consciousness about talking to Dowds directly
rather than through her attorney. In any event, resolving this
conflict against Mills and Dr. Browne does not disturb the
principal finding, conceded by Dowds, that Mills did not
discuss the substance of Dowds' case at any time on June 13.
14

least not until the case was over--and that Dowds should get in
touch with Romero.
At some point in the encounter, Mills may have stated that
she didn't want to see the Association take advantage of
Dowds. If this remark was made (which Mills denied) , it was
understandable in the context of events. Thus, it was
responsive to Dowds' obvious desire to reach Romero to clear up
the questions that had been raised about the District's past
salary practices and the 1974 negotiations, as well as Dowds'
own concerns about Romero's readiness. Finally, the discussion
ended and Dowds departed, perhaps with Mills urging the
desirability of a settlement because of the District's
hard-pressed finances.
CONCLUSIONS OF LAW
In Rio Hondo Community College District (5/19/80) PERB
Decision No. 128, the Board adopted precedent under the
National Labor Relations Act (NLRA) holding that it would
evaluate allegedly unlawful employer speech to determine
whether it "contains a threat of reprisal or force or promise
of benefit. " (Id., at p. 20) .7
7Section 8(c) of the NLRA (29 U.S. C. 158 (c) ) states:
The expression of any views, arguments or
opinions or the dissemination thereof,
whether in written, printed, graphic, or
visual form, shall not constitute or be
evidence of an unfair labor practice under
15

Hence, if the statement challenged by the Association
contained a threat of reprisal tending to or interfering with
employee rights under the EERA, a violation will be found
unless the employer demonstrates an operational justification
for the statement. See Novato Unified School District
(4/30/82) PERB Decision No. 210; Carlsbad Unified School
District (1/30/79) PERB Decision No. 89.
In assessing Dr. Browne's comments, Sheila Dowds'
subjective impression of a threat is not determinative. In Rio
Hondo, the Board held that the legality of employer speech
would be gauged,
. in light of the impact that such
communication had or was likely to have on
the . 	employee [who] may be more
susceptible to intimidation or receptive to
the coercive import of the employer's
message. 	(Id. , PERB Decision No. 128, at
P. 20.)
A violation is therefore to be based on how the statement could
be "reasonably viewed." (Id., at p. 23.) This approach is
any provision of this Act, if such
expression contains no threat or reprisal or
force or promise or benefit.
The EERA lacks expres language comparable to 8 (c) , but the
Board's decision in Rio Hondo is clearly in accord with this
standard and specifically relies upon NLRB v. Gissel Packing Co.
(1969) 395 U.S. 575, the leading federal case interpreting 8 (c) .
The construction given to comparable application of the NLRA
may be used to guide interpretation of the EERA. 	See, e.g. ,.
San Diego Teachers Assn. v. Superior Court (1979) 24 Cal. 3d 1,
12-13; Fire Fighters Union v. City of Vallejo (1974)
12 Cal. 3d 608, 616.
16

consistent with the objective analysis standard under the
NLRA. 	Regents of the University of California (12/16/83) PERB
Decision No. 366-H, citing B.M.C. Manufacturing Corp. (1955)
113 NLRB 823 [36 LRRM 1397]; Gorman, Labor Law (1976) at p. 132.
As a threshold matter, it is plain that the discussion
between Dr. Browne and Dowds involved a pending grievance, an
activity protected under the EERA. North Sacramento School
District (12/20/82) PERB Decision No. 264.
Ample evidence also supports the conclusion that there was
a nexus between this protected activity and Dr. Browne's action
on behalf of the District. There is no dispute over
Dr. Browne's apparent authority to have acted as the employer's
agent on June 13, nor, indeed, could that authority be
disclaimed at this late date. See Antelope Valley Community
College District (7/18/79) PERB Decision No. 97 (at pp. 9-10) ,
quoting International Assn. of Machinists v. NLRB (1940)
311 U.S. 72; Vista Verde Farms v. The Agricultural Labor
Relations Bd. (1981) 29 Cal. 3d 307, 318-321. In fact, in its
answer to the complaint (as demonstrated by the evidence at the
hearing) , the District admits Dr. Browne's supervisory status
and concedes that,
. at the direction of Attorney Mills
Dr. Mildred Browne met with school
psychologist Sheila Dowds and Vincent Brown
in an attempt to resolve and/or settle the
grievance. 	(Answer, at p. 2; emphasis
added. )
17

On the ultimate issue of unlawful conduct, under the
circumstances, Dowds could reasonably view as a threat
Dr. Browne's remarks about a potential lawsuit by the District
if Dowds pursued her case to arbitration. Although Dr. Browne
had been Dowds' ally on the grievance, rendering assistance and
interceding on Dowds' behalf, the fact remains that on June 13
Dr. Browne was acting as a go-between on management's behalf.
Even if Dr. Browne bore no ill will toward Dowds, sincerely
wanted a settlement, and would not have initiated court action
on her own, Dowds could properly take Dr. Browne's remarks as
expressing the employer's point of view since this was related
to Dr. Browne's report about the administrative conference that
had just taken place.
Moreover, Dr. Browne's remarks can be imputed to the
employer, regardless of Dr. Browne's supervisory status, since
the District expected Dr. Browne to be acting as a messenger
conveying information to Dowds. Whether Dr. Browne accurately
reported the tentative status of the overpayment issue as
raised in the previous conference is beside the point. The
risk that Dr. Browne inadvertently misstated what had
transpired, perhaps to strengthen her appeal that Dowds resolve
the grievance, shall be borne by the District which had
commissioned her to act as an intermediary. Unfortunately,
with the benefit of hindsight, it is apparent that the better
practice would have been for Mills to communicate the state of
18

the evidence to Romero, rather than to have relied on
Dr. Browne's intercession. 8
Nor can the District defend against a violation on the
ground that an overpayment salary claim against Dowds was
justified. An employer is not barred from warning or taking
action against an employee on matters that are disclosed in the
process of arbitrating a contract claim, for to do so "would
give automatic immunity." Public Svc. Elec. & Gas Co. (1983)
268 NLRB 54 [1:15 LRRM 1006, 1007]. Assuming a reasonable
counterclaim was discovered while preparing for Dowds'
arbitration, the District would have been free to trade its
claim in exchange for dismissal of the grievance. 	In this
connection, however, there was no evidence introduced that
Dowds had been overpaid when first hired as a long-term
substitute. Further, the suggested claim was stale, having
arisen, if at all, nearly four years before, and the subject
was certainly within the knowledge of District agents acting at
8Federal precedent is consistent with this analysis.
Among the numerous cases on the subject of employer liability
for the acts of apparent agents, compare Community Cash Stores
(1978) 238 NLRB 265, 266 [99 LRRM 1256] (liability for anti-
union acts of older employee emissary) , Adams Iron Works, Inc.
(1975) 221 NLRB 71 [90 LRRM 1643], enf. (2nd Cir. 1976)
556 F. 2d 557 [96 LRRM 2106] (ostensibly authority of management
friend to offer settlement) , and, Teledyne Dental Products
Corp. (1974) 210 NLRB 435, 441 [86 LRRM 1134] (liability for
messages transmitted by non-supervisory employee) , with
University Townhouse Cooperative (1982) 260 NLRB 1381
[109 LRRM 1321] (no evidence showing that shop coordinator
liaison gave impression of speaking on management's behalf) .
19

that time. Last, in the course of denying Dowds' grievance,
the District had referred to the initial salary placement as
correct, expressly disclaiming reliance on contract language
that could have been interpreted to authorize a lower salary.
In sum, to have raised the prospect of court action on the
eve of the arbitration, coupled with representations about
damaging evidence on the merits of Dowds' grievance, could
reasonably have been viewed by Dowds as an unjustified threat
to coerce her to drop the case. Indeed, it is arguable that
this conclusion would apply even if no court action had been
explicitly threatened, but only had been implied by reference
to an unsound overpayment issue.
B. 	The Mills-Dowds communications.
The charging party contends that Mills improperly
communicated with Dowds on June 13, bypassing Romero, who was
Dowds' designated representative on the pending grievance. 	To
support this claim, the Association refers to Rule 7-103 of the
Rules of Professional Conduct, which states:
A member of the State Bar shall not
communicate directly or indirectly with a
party whom he knows to be represented by
counsel upon a subject of controversy,
without the express consent of such
counsel. This rule shall not apply to
communications with a public officer, board,
committee or body.
Assuming that PERB may refer to professional standards to
gauge the conduct of parties in regard to grievance activity
20

protected under the EERA,9 no interference with protected
rights is found in this case.
Granted, the Board has determined that in grievance
proceedings an employee has the right to grieve through a
particular individual representative. California State
University (Sacramento) (4/30/82) PERB Decision No. 211 (at
pp. 14-15). And, applying NLRA precedent, an employer is
required to deal with a grievant's attorney absent contract
language limiting that right. United States Postal Service
(1973) 202 NLRB 823 [82 LRRM 1641]. The general rule that
prohibits bypassing and refusals to deal is justified by
important policy considerations favoring contract stability and
protecting against internal union divisions, and the PERB has
adopted this approach. See, e.g. , San Ramon Unified School
District (8/9/82) PERB Decision No. 230 (at pp. 16-17).
Rio Hondo Community College District (12/28/82) PERB Decision
No. 272 (at pp. 6-11) ; Bethlehem Steel Co. (1950) 89 NLRB 341
[25 LRRM 1564] .
The rationale supporting this labor relations prohibition
is similar to the policy underlying Rule 7-103. That rule is
9cf. Chronometrics, Inc. v. Sysgen, Inc. (1980)
110 Cal. App. 3d 597, 603-608 (affirming trial court
disqualification of attorney for improper contact with opposing
party) . Also compare Code of Civil Procedure, section 128
(enumeratiog court powers) with Board Rule 32170 (8 Cal.
Admin. Code, sec. 32170) (enumeratiog hearing officer powers).
21

intended to protect the sanctity of the attorney-client
relationship as well as the administration of legal disputes.
It shields the opposing party not only from
an attorney's approaches which are
intentionally improper, but, in addition,
from approaches which are well-intended but
misguided.
The rule was designed to permit an attorney
to function adequately in his proper role
and to prevent the opposing party from
impeding his performance in such role. 	If a
party's counsel is present when an opposing
attorney communicates with a party, counsel
can easily correct any element of error in
the communication by calling attention to
counteracting elements which may exist.
(Mitton v. State Bar (1969) 71 Cal. 2d 525,
534.)
However, in this case the Association has not charged that,
aside from threatened court action, there was impermissible
contact ab initio between Dr. Browne and Dowds that undermined
the labor relations and professional standards described
above. 	Rather, the Association only claims that the
communications between Mills and Dowds violated the Act. 10
10Had the Association offered to amend its charge to
conform to proof after the trial, it is questionable whether a
violation would be found for the Dr. Browne-Dowds contact.
Dowds as the original grievant had previously represented
herself in the dispute and there was no showing that Romero,
once he entered the case, had notified the District that he was
the sole and exclusive agent on her behalf. Also, Dowds made
no objection when she was approached by Dr. Browne to talk
about the case, willingly engaged in conversation, heard
information about the District's evidence, and actively
cooperated with Dr. Browne in seeking further contact with the
superintendent and/or Mills on June 13.
22

When examined in light of these labor relations and
professional principles, there is insufficient evidence to
support the contention that Mills' comments to Dowds, in
Romero's absence and without his consent, violated the EERA.
In short, Mills stated without any ambiguity that Dowds should
contact Romero to seek answers to her questions about the case,
and that Mills could not discuss the substance of the
grievance. 	Mills' refusal to discuss the case occurred not
only when she was first confronted by Dr. Browne and Dowds, who
were anxious to continue discussion following the morning
disclosures, but continued when the group moved to another
building. According to Dowds, Mills even assisted in an
unsuccessful attempt to telephone Romero. Any other criticisms
or doubts about the case that Dowds may have subjectively
inferred from Mills' remarks were purely responsive to the
situation and were harmless. As Mills argued during the
hearing, there was no communication upon any "subject of
controversy" in the words of Rule 7-103. This aspect of the
complaint shall be dismissed.
C. Violation.
Separate violations of section 3543.5 (a) and 3543.5 (b) are
found in Dr. Browne's comment conveying a threatened court
action reprisal if Dowds pursued her case to arbitration.
Under section 3543.5(a) , this unprotected speech interfered
with the right of an employee to process a grievance by linking
23

continuation of the pending proceeding to prospective harm at a
later date. Under section 3543.5 (b) , organizational readiness
to proceed on behalf of an employee it represents would
certainly be diminished by such a chilling threat, which
included the implication of potential strain on organizational
resources that would result from additional litigation.
REMEDY
Section 3541.5 (c) of the Act states:
The board shall have the power to issue a
decision and order directing an offending
party to cease and desist from the unfair
practice and to take such affirmative
action, including but not limited to the
reinstatement of employees with or without
back pay, as will effectuate the policies of
this chapter.
A cease and desist order is the traditional remedy for
cases of unlawful employer speech threatening a reprisal tied
to the exercise of protected rights under the Act. See, e.g. ,
John Swett Unified School District (6/8/82) PERB Decision
No. 188 (employer derogation of faculty poll had no place in
legitimate problem-solving conversation) .
It also is appropriate that the District post a notice
incorporating the terms of the order. 	The notice should be
subscribed by an authorized agent of the District indicating
that it will comply with the terms thereof. The notice shall
not be reduced in size. Posting such a notice will provide
employees with notice that the District has acted in an
unlawful manner and is being required to cease and desist from
24

this activity. It effectuates the purposes of the EERA that
employees be informed of the resolution of the controversy and
will announce the District's readiness to comply with the
ordered remedy. See Placerville Union School District
(9/18/78) PERB Decision No. 69; Pandol and Sons v. Agricultural
Labor Relations Bd. (1979) 98 Cal. App. 3d 580, 587; NLRB v.
Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM 415].
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in the case, and pursuant to
section 3541.5(c), it is hereby ordered that the Ravenswood
City School District and its representatives shall:
1. 	CEASE AND DESIST FROM:
(a) Threatening to take court action, without
justification, if an employee grievance is pursued to an
arbitration hearing; and,
(b) Interfering with the right of the Association to
represent a grieving employee by threatening, without
justification, to take court action if an arbitration hearing
is pursued.
2 . 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT :
(a) Within five (5) workdays after this decision
becomes final, prepare and post copies of the NOTICE TO
EMPLOYEES attached as an appendix hereto, for at least thirty
25

(30) workdays at its headquarters offices and in conspicuous
places at the location where notices to certificated employees
are customarily posted. It must not be reduced in size and
reasonable steps should be taken to see that it is not defaced,
altered or covered by any material.
(b) Within twenty (20) workdays from service of the
final decision herein, give written notification to the
San Francisco Regional Director of the Public Employment
Relations Board of the actions taken to comply with this
order. Continue to report in writing to the regional director
thereafter as directed. All reports to the regional director
shall be concurrently served on the Charging Party herein.
IT IS FURTHER ORDERED that all other alleged violations in
the complaint shall be DISMISSED.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final on February 15, 1984, unless a party files a
timely statement of exceptions. In accordance with the rules,
the statement of exceptions should identify by page citation or
exhibit number the portions of the record relied upon for such
exceptions. See California Administrative Code title 8,
part III, section 32300. Such statement of exceptions and
supporting brief must be actually received by the Public
Employment Relations Board at its headquarters office in
Sacramento before the close of business (5:00 p.m. ) on
26

February 15, 1984, or sent by telegraph or certified United
States mail, postmarked not later than the last day for filing
in order to be timely filed. See California Administrative
Code, title 8, part III, section 9135. Any state ent 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.
Dated: January 26, 1984
BARRY WINOGRAD
Administrative Law Judge
27