Santa Clara Unified School District (PERB 0500E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
JAMES F. 	HAMM.
Charging 	Party.
v.
SANTA CLARA UNIFIED SCHOOL DISTRICT.
Respondent.
)
)
)
)
))
)
Case No. 	SF-CE-674
PERB 	Decision 	No. 500
April 	11, 	1985
)
Appearances: 	Garry. 	Dreyfus & McTernan. 	Inc. 	by Janet K. 	King
and Susan Devencenzi, 	Attorneys 	for James F. 	Hamm; 	Littler.
Mendelson. 	Fastiff & Tichy by Richard J. 	Loftus. 	Jr. 	and
Donald M. 	Hartford, 	Jr.. 	Attorneys 	for 	Santa Clara Unified
School District.
Before Jaeger, 	Morgenstern and Burt. 	Members.
DECISION
BURT. 	Member: 	This 	case 	is 	before the Public Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed 	by 	the
Santa 	Clara Unified School District 	(District) 	to 	the 	attached
proposed 	decision of 	an administrative 	law 	judge 	(ALJ) 	finding
that 	it violated 	section 	3543.5(a) 	of 	the Educational
Employment 	Relations Act 	(EERA or Act)1 by discriminatorily
transferring 	teacher 	James 	F. 	Hamm.
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to 	the Government Code.
Section 3543.5 provides, 	in relevant part:
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.
In 	its exceptions, 	the District 	argues 	that 	the ALJ
improperly 	applied 	the 	Board's 	standard, 	adopted 	in Novato
Unified School District 	(4/30/82) 	PERB Decision No. 	210, 	in
deciding 	whether 	or 	not 	discrimination 	in 	violation 	of 	EERA had
occurred. 	It 	further 	argues 	that 	the 	ALJ 	improperly 	allocated
the burden of proof.
To 	the 	contrary, 	we 	find 	that 	the 	ALJ correctly 	applied 	the
Board's Novato 	test, 	a 	test 	in conformity with 	that 	used 	by 	the
National 	Labor 	Relations Board 	in Wright 	Line, 	A Division 	of
Wright Line, 	Inc. 	(1980) 	251 NLRB 150 	[105 LRRM 1169], 	and
upheld 	by 	the 	U.S. 	Supreme 	Court 	in National 	Transportation
Management 	(1983) 	76 L.Ed.2d 	667 	[113 	LRRM 2857], 	including 	the
allocation of 	the 	burden of proof.
Therefore, 	after 	a 	thorough 	review of 	the 	entire 	record 	in
light 	of 	the 	District's 	exceptions 	and 	Hamm's 	response 	thereto,
we 	find 	that 	the ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law
are 	free 	from prejudicial 	error, 	and we adopt 	them as our 	own.
We 	also 	adopt 	the 	ALJ's proposed 	remedy 	and 	order, 	altering
only 	the year 	in which 	reinstatement 	is 	to 	take
22

place 	and 	the 	appropriate 	rate 	of 	interest, 	the 	latter 	to
conform to 	Board 	practice.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and the 	entire record 	in the 	case, 	it 	is 	found that 	the Santa
Clara 	Unified 	School 	District violated 	section 	3543.5(a) 	of
EERA. 	Pursuant to section 3541.5(c), 	it 	is hereby ORDERED that
the District, 	its 	governing board and 	its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Restraining, 	discriminating against, 	or otherwise
interfering with the 	rights 	of 	employees, 	and James F. 	Hamm in
particular, 	because of 	the exercise of 	their right 	to
participate 	in 	an 	activity 	protected 	by 	the 	Educational
Employment 	Relations Act.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
(a) 	Upon his request, 	reinstate James F. 	Hamm to his
former position, 	or 	its 	equivalent position, 	at Wilcox High
School 	effective 	the 	beginning 	of 	the 	1985-86 	school 	year,
without 	prejudice 	to his 	seniority and 	other 	rights 	and
privileges.
(b) 	Make James F. 	Hamm whole 	for 	any loss 	of pay or
other 	benefits 	he may have 	suffered, 	including a 	$500 	stipend
for 	each year 	of 	service 	lost as 	a 	department 	chair. 	The
amount 	paid 	shall 	include 	interest 	at 	the rate 	of 	10 	percent
per 	annum.
3

(c) 	Within thirty-five 	(35) 	days 	following the date
this Decision is 	no 	longer 	subject 	to reconsideration, 	post at
all 	work 	locations where 	notices 	to 	employees 	customarily 	are
placed, 	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 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken to 	insure 	that 	this
Notice 	is 	not defaced, 	altered, 	reduced 	in size 	or 	covered by
any other material.
(d) 	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.
Members 	Jaeger 	and Morgenstern 	joined 	in 	this 	Decision.
4

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-674. 	James
F. 	Hamm v. 	Santa Clara Unified School District, 	in which all
parties 	had 	the 	right 	to participate, 	it 	has 	been found 	that 	the
Santa 	Clara 	Unified 	School 	District 	violated 	Government 	Code
section 	3543.5(a) 	by reassigning James 	F. 	Hamm from Wilcox High
School 	to 	Peterson Junior 	High School 	beginning 	in 	1982-83.
As 	a 	result 	of 	this 	conduct we 	have 	been 	ordered 	to 	post 	this
Notice 	and we will:
1. 	CEASE AND DESIST FROM:
(a) 	Restraining, 	discriminating against, 	or otherwise
interfering with the rights 	of 	employees, 	and James F. 	Hamm 	in
particular, 	because 	of 	the 	exercise 	of 	their 	right 	to participate
in 	an 	activity 	protected 	by 	the 	Educational 	Employment 	Relations
Act.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
(a) 	Upon his request, 	reinstate James F. 	Hamm to his
former 	position, 	or 	its 	equivalent position, 	at Wilcox High School
effective 	the 	beginning of 	the 	1985-86 	school year, 	without
prejudice 	to 	his 	seniority 	and 	other 	rights 	and 	privileges.
(b) 	Make James F. 	Hamm whole 	for 	any 	loss 	of pay or 	other
benefits 	he may have 	suffered, 	including a 	$500 	stipend 	for 	each
year 	of 	service 	lost 	as 	a 	department 	chair. 	The amount paid 	shall
include 	interest 	at 	the 	rate 	of 	10 	percent per 	annum.
Dated: 	SANTA 	CLARA 	UNIFIED 	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 DEFACED. 	ALTERED. 	REDUCED 	IN SIZE OR COVERED BY ANY OTHER
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
JAMES F. 	HAMM,
Charging 	Party,
v.
SANTA 	CLARA 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice 	Charge
Case No. 	SF-CE-674
PROPOSED 	DECISION
(6/14/83)
Appearances; 	Janet K. 	King 	and Susan Devencenzi 	(Garry,
Dreyfus & McTernan), 	attorneys for James F. 	Hamm;
Richard J. 	Loftus, 	Jr. 	and Donald M. 	Hartford, Jr. 	(Littler,
Mendelson, Fastiff 	& Tichy), 	attorneys for 	the Santa Clara
Unified School 	District.
Before; 	Barry Winograd, Administrative Law Judge.
PROCEDURAL 	HISTORY
On July 13, 	1982, 	James Hamm filed 	an unfair 	practice
charge 	against 	the 	Santa 	Clara 	Unified 	School 	District
(hereafter 	District). 	On August 5, 	1982, 	the charge was
amended. 	As 	amended, 	the 	charging 	party alleged 	that 	in
May 	1982 	he 	had 	been 	reassigned 	as 	a 	teacher 	from a 	high 	school
to a junior 	high 	school. 	According 	to Hamm, 	the 	reassignment
was 	discriminatory 	and 	constituted 	a 	violation 	of
section 	3543.5(a) 	of 	the Educational Employment Relations Act
(hereafter 	EERA or 	A c t ) . 1
1The EERA 	is 	codified 	at 	Government 	Code 	section 	3540,
et 	seq., 	and 	is 	administered 	by 	the 	Public Employment 	Relations
)
)
)
)
)
)
)
=-=-=-=-=-=---	_-------~l

Board 	(hereafter 	PERB or 	Board). 	Unless 	otherwise 	indicated,
all 	statutory 	references 	in 	this 	decision 	are 	to 	the Government
Code. 	Section 3543.5 	of 	the Act provides 	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.
The PERB 	issued 	a complaint 	on August 9, 	1982. 	The
District 	filed 	its 	answer 	on August 18, 	1982, 	admitting 	certain
facts, 	but 	generally denying 	the 	allegations 	of 	unlawful
conduct. 	The 	District 	affirmatively 	alleged 	that 	Hamm's
reassignment 	was 	in accord 	with 	the 	provisions 	of 	a collective
bargaining 	agreement 	then 	in 	effect.
An 	informal 	settlement 	conference 	was 	conducted 	on
September 	17, 	1982, 	but 	the dispute was not resolved. 	On
November 	30, 	1982, 	the parties attended a pre-hearing
conference. 	A formal 	hearing 	was 	conducted 	in Santa Clara,
California on December 	14 	and 	16, 	1982, 	and 	on January 	5,
1983. 	Post-hearing 	briefs 	were 	filed 	and 	the 	matter 	was
submitted 	for 	decision on April 4, 	1983.2
2At 	the 	pre-hearing 	conference, 	the 	District 	filed 	a
motion 	to strike paragraph 	4 of 	the 	amended charge, 	which
stated:
Charging 	party 	filed 	a 	timely 	grievance
concerning 	his 	reassignment. 	The grievance
was 	denied 	at Levels 	1 	and 	2. 	The 	exclusive
representative 	and 	district 	have 	refused 	to
22

submit 	the matter 	to 	arbitration and/or 	to
allow charging 	party 	to 	do 	so on 	his 	behalf.
The 	District 	asserted 	that 	this 	allegation was 	irrelevant 	to 	a
determination 	of 	whether 	the 	respondent's 	conduct 	violated 	the
Act 	because 	taking 	Hamm's 	grievance 	to 	arbitration 	under 	the
contract 	was 	solely within 	the 	authority 	of 	his 	exclusive
representative. 	The 	charging 	party was 	given 	an 	opportunity 	to
respond 	to 	the motion, 	and, 	at 	the 	start of 	the 	formal hearing,
the motion 	was 	denied 	without prejudice 	to 	renewal at 	a 	later
stage. 	After 	reviewing 	the 	briefs 	submitted 	at 	the 	end 	of 	the
case, 	the motion to strike 	is granted. 	There was 	no evidence
introduced 	that 	the 	employer 	directly 	or 	indirectly 	influenced
the 	exclusive 	representative's 	exercise 	of 	its 	contractual
prerogative 	to decline 	arbitration.
FINDINGS 	OF FACT
A. 	Background.
At 	issue 	in 	this case 	is James 	Hamm's reassignment 	in
May 	1982 	from Wilcox High 	School 	to a 	junior 	high 	school
English position 	for 	the 	1982-1983 	school year. 	An 	earlier
reassignment 	attempt 	in April 	1982 	had 	been 	the 	subject 	of 	a
successful 	grievance 	and 	is 	discussed 	in more 	detail 	below.
The 	District 	contends 	that Hamm's 	reassignment 	was 	the 	result
of 	declining 	enrollment, 	and 	was 	carried out 	in accord with 	the
existing 	collective 	agreement. 	Hamm contends 	that 	staffing
cutbacks 	and 	workload 	ratios 	were 	adjusted 	to mask 	an
underlying 	motive 	to 	retaliate 	against 	him 	for 	the 	exercise 	of
protected 	rights 	under 	the 	EERA.
Hamm was 	hired 	as 	a 	high 	school 	English 	teacher 	in 	the
District 	in 	1967. 	For 	14 years 	he 	taught at Peterson High
33

School. 	In 1981-82, 	after 	several years of declining
enrollment, 	Hamm was 	reassigned 	to Wilcox High School 	as part
of 	a District-wide 	structural 	reorganization 	that 	closed 	two
high 	schools 	and 	consolidated 	enrollment 	in 	two others. 	In
Hamm's last 	few years 	at Peterson, 	and at Wilcox, 	he was
elected 	department 	chairman 	by 	his 	fellow-teachers. 	The
department 	chair 	is 	subject 	to a 	veto 	by 	the 	school principal,
a power 	rarely 	if 	ever 	exercised. 	The 	chair 	also 	receives 	a
$500 	stipend, 	but 	is 	still 	considered a 	rank-and-file 	employee.
During Hamm's 	last 	eight or 	nine 	years 	at Peterson, 	his
supervising 	principal 	was 	Charles 	Passantino. 	After 	the
District's 	consolidation, 	Passantino became 	the principal at
Wilcox, 	again 	supervising Hamm. 	Passantino's 	testimony 	and
other 	evidence 	indicates 	that 	Hamm was 	an outstanding 	teacher,
as 	well 	as 	a 	committed 	proponent 	of 	a 	fully-staffed 	English
department 	and 	program.
B. 	Involvement 	in protected 	activity.
Since 	1969 	Hamm has 	been 	the 	president of 	an affiliate 	of
the American Federation of 	Teachers 	in 	the District. 	In 	that
capacity 	he 	has 	represented 	teachers 	in many 	grievance 	and
administrative proceedings, 	and 	his 	role was well-known 	to
District managers, 	including 	Passantino. 	Hamm's 	representative
advocacy 	on 	behalf 	of 	teachers 	continued 	after 	an 	affiliate 	of
the 	California 	Teachers 	Association 	(hereafter 	Association)
became 	the 	exclusive 	representative 	in 	the late 	1970's. 	Often,
44

Hamm represented 	teachers 	on 	grievances, 	in layoff or 	dismissal
hearings, 	and, 	with 	the Association's consent 	in one 	instance
in 1981-82, 	in an arbitration proceeding.
There 	was 	evidence 	that 	in 	the 	year 	or 	so prior 	to his
reassignment 	Hamm's 	advocacy 	intensified 	and 	broadened 	in
perspective. 	In 1980-81, 	for 	example, 	he was active 	in an
election campaign 	to 	recall 	school 	board 	members 	after 	they 	had
voted 	to consolidate 	the 	District's 	high 	schools. 	The
consolidation 	resulted 	in 	the 	layoff 	or 	transfer 	of 	many
teachers. 	Among 	other 	things, 	Hamm secured 	a local AFL-CIO
endorsement 	of 	the 	recall drive. 	Passantino conceded 	in 	his
testimony 	that 	he 	might 	have 	advised 	Hamm 	to 	stay 	neutral 	on
the 	issue, 	but 	denied Hamm's 	impression 	that 	Passantino warned
of possible 	retaliation. 	The 	recall 	effort 	lost.
In his 	first 	year 	at Wilcox, 	Hamm had an ongoing 	dispute
over 	curriculum planning 	with 	the 	assistant 	principal 	and
registrar, 	Roger 	Hoy. 	Hoy 	had 	been 	an administrator 	at Wilcox
since 	1972. 	Hamm 	argued 	that 	more 	English writing 	courses 	were
needed 	at Wilcox 	in order 	to 	accommodate 	the 	number 	of 	students
enrolled, 	the 	District's programmatic priorities 	placing
emphasis 	on English, 	and 	the 	limits 	on class 	size 	that 	had
developed 	in practice 	at Wilcox 	under 	Passantino. 	Hamm
testified 	that 	the 	class 	size 	limit 	at 	the 	time 	for 	composition
courses was 	27 	or 	28 	to 1, 	and 	lower 	for 	remedial and
5

laboratory 	programs. 	(At Peterson, 	Hamm and 	Passantino had
informally 	abided 	by 	a 	25:1 	class 	size 	for 	writing.)
Eventually, 	at 	the 	start 	of 	the 	spring 	1982 	semester,
Passantino 	accepted Hamm's view, 	and 	six 	new English 	sections
were 	added. 	To accomplish 	this, 	one 	teacher, 	Rebecca Peterson,
was 	temporarily 	reassigned 	for 	that 	semester 	from 	a 	junior 	high
school. 	Another 	teacher, 	Ruth Werfel, 	at an 80 percent load,
had one more 	class 	added 	to her 	schedule. 	In addition, 	other
teacher 	assignments 	were 	juggled 	to 	add 	four 	more 	writing
classes 	during 	the 	year.
This 	resolution was 	only 	short-term, 	however. 	The 	staffing
dispute 	continued 	between 	Hamm 	and 	Hoy 	as 	planning 	took 	place
for 	the 	1982-83 	school year. 	This 	conflict 	lasted 	through 	the
balance of 	the 	1981-82 	school year, 	carrying 	over, 	under 	the
Association's auspices, 	to the year 	following.
Finally, 	in 1981-82, 	Hamm had disagreements 	about a new
Wilcox 	administrator, 	Mike 	Rambis. 	Hamm and 	other 	English
teachers 	were 	upset 	that 	a 	new manager 	was 	hired while 	they 	saw
their 	own department 	as 	understaffed. 	Thereafter, 	there were
also 	disputes 	with 	Rambis 	over 	lesson plan 	requirements 	and 	the
manner 	and 	timing 	of 	evaluations. 	Passantino's 	intervention
was 	needed 	in 	each 	instance. 	Hamm's 	claim 	that 	he 	had 	already
fulfilled 	the 	lesson plan 	requirement, 	by 	posting 	his plans 	in
class 	rather 	than 	submitting 	them 	to 	the 	administrator, 	was
66

accepted 	by 	Passantino. 	The 	evidence 	is 	unclear 	about 	what
happened 	to 	the 	evaluation 	process.
Both 	Hamm 	and 	Passantino 	described 	their 	relationship 	in
positive 	terms 	of mutual satisfaction, 	at 	least 	for 	the period
before 	the 	consolidation 	decision 	and 	recall 	campaign. 	Indeed,
there 	was 	evidence 	that 	Passantino 	assigned 	Hamm 	to Wilcox 	even
though 	there was 	a more 	senior 	English 	teacher 	available, 	and
also 	urged 	that 	Hamm 	serve 	as 	department 	chairman 	in 	their
first 	year 	at Wilcox.
Despite 	this 	history, 	or perhaps because of 	it, 	the new
school 	situation 	apparently 	altered 	the 	previously 	satisfactory
working 	relationship of 	several years. 	For 	one 	thing, 	there 	is
evidence, 	in 	the 	credible 	and detailed 	testimony 	of 	teacher
Dennis Mulvihill, 	that 	Hamm's pressure 	on Passantino regarding
the 	disputes 	with 	Hoy 	and 	Rambis 	caused 	Passantino 	to 	lose 	face
with 	those managers. 	Additionally, 	even Passantino conceded
that 	he 	had 	heard 	rumors 	at Wilcox 	that 	the Association
believed 	that Hamm was 	"running 	the 	school" 	after 	the 	staffing
and lesson plan challenges. 	In fact, 	Hamm testified 	that, 	in
the 	informal 	first-step 	discussion 	of 	Hamm's 	grievance 	against
his 	second 	reassignment 	in May, 	Passantino,
. 	. 	. 	told me that 	there were other 	things
that he 	could 	not 	tell me 	about 	right 	now.
And 	he 	also made 	the 	statement 	that 	I 	gave
you a 	grievance you could win, 	the 	first
grievance.
y
1

Q. 	What was 	your 	understanding 	of 	the
meaning 	of 	that 	comment?
A. 	That 	somehow 	he was 	under 	pressure 	to
reassign me.
Q. 	Did you 	ask 	him what 	the 	remark 	about
other things 	. 	. 	. 	considered meant?
A. 	Yes, 	and 	he 	said he 	could not 	tell me
right now and he 	said I'll, 	sometime, 	I
cannot 	tell 	you 	right 	now.
Q. 	And 	at 	that 	time 	you 	were 	discussing
your 	reassignment 	as 	a grievance 	conference?
A. 	Yes.
Q. 	And 	he 	refused 	to 	indicate 	what 	other
factors 	were 	being 	considered?
A. 	Yes. 	He 	clearly 	stated 	there were 	other
factors 	and 	he 	would 	not 	discuss 	them.
(Reporter's Transcript, Vol. 	I, p. 	52.)
When 	he 	testified, 	Passantino could 	not 	recall 	(but 	did 	not
deny) 	this grievance 	conference 	or 	these 	statements.
Finally, 	in terms 	of protected activity, 	Hamm's April 1982
grievance 	against 	his 	first 	reassignment 	was 	the 	first
grievance 	he 	had 	ever 	pursued 	that 	involved 	himself 	or 	that 	was
directed 	against 	Passantino 	personally. 	The 	grievance
specifically 	challenged 	the 	principal's 	judgment 	about 	Hamm's
qualifications 	and 	the 	inapplicability 	of 	seniority
principles. 	After 	Hamm prevailed on 	this 	first 	grievance, 	he
and Passantino had 	no conversation 	about 	the 	subject. 	Within a
few weeks, 	however, 	without further 	explanation 	from
Passantino, 	Hamm 	received 	his 	second 	reassignment 	notice.
Co	
8

C. 	Declining 	enrollment 	projections.
Throughout 	the 	late 	1970's, 	the 	District's enrollment
declined 	at 	all 	grade 	levels. 	This 	pattern led 	to 	the 	high
school consolidation 	in 1981-82, 	and 	forms 	the 	backdrop for 	the
events 	at 	issue 	in 	this case.
In 1981-82 	there 	were 	1771 	students 	at Wilcox 	(excluding 	a
nominal 	number 	of 	special 	education enrollees). 	During 	that
year, 	1981-82, 	there were 	12.0 	full-time equivalent positions
(or, 	FTE's) 	in English 	in 	the first semester, 	and 13.2 FTE's 	in
the 	second 	semester. 	The 	increase 	reflected 	the 	five 	courses
taught 	by 	Peterson 	and 	the 	one 	extra 	course 	by Werfel.
At 	the 	start 	of 1982, 	the District's central staff
projected 	an 	enrollment 	decline 	at 	Wilcox 	to 	about 	1565 	for 	the
next school year, 	1982-83. 	Based on this projection,
Passantino 	announced 	in March 	1982 	an 	anticipated 	cutback 	of
9.8 	FTE's, 	of 	which 	1.4 	were 	to 	be 	taken 	from 	the English
department 	staff.
The 	record 	is 	somewhat 	inconclusive 	and 	inconsistent 	on
these 	projections. 	The 	projected 	decline 	of 	200-plus 	students,
the 	only 	uniformly accepted 	figure 	in 	the 	District's 	records,
should 	have yielded an 	approximate 	7.0 	FTE loss, 	if 	the
school-wide 	average 	figure 	of 	30 	students 	per 	class 	was
utilized 	as 	the District 	contends 	it was. 	On 	the 	other 	hand,
Hoy 	testified 	that 	he 	had 	informed 	Passantino 	that 	the 	English
department 	staffing 	level 	should 	be 	geared 	to a 	student
99

enrollment 	of 	about 	92 percent 	of 	the projected 	1565; 	with 	the
92 	percent 	representing 	the 	student 	body 	percentage 	that 	had
been 	enrolled 	in English 	in 	the 	fall 	1981 	semester.
If computed on that 	basis, 	the English cutback, 	on a
30-student 	per 	class 	average, 	should 	have 	been 	about 	2.2 FTE's,
or 	greater, 	according 	to the 	administration. 	For 	this 	reason,
Hoy 	testified 	that 	Passantino's March 	figure 	of 	a 	1.4 	FTE
reduction 	in English was 	a computation error, 	later 	to be
corrected 	to a 	2.2 	figure 	once 	the 	student pre-enrollment
preference 	tallies 	were 	taken 	in April 	and May. 	In accord with
this 	are 	two documents; 	one prepared 	in mid-February 	that
projected 	an English 	reduction of 	2.2 	FTE's; 	another, 	undated
but placed 	after 	an April 	or 	May 	student 	preference 	tally, 	also
showed 	a 	2.2 	English FTE 	loss. 	Both 	of 	these 	documents
projected 	a 	total 	10.8 	FTE cutback. 	To confuse matters,
however, 	by mid-May, 	although 	the English department 	cutback
was 	increased, 	the 	total 	school-wide FTE 	reduction remained a
projected 	9.8, 	as 	Passantino 	stated 	in 	his 	reassignment 	notice
to Hamm, 	or, 	9.6 FTE's 	as 	stated 	in 	the distribution of 	the
involuntary 	transfer 	pool.3
3The 	school-wide 	FTE 	teacher 	reductions 	actually
projected, 	in chronological order, 	were 	the following: 	10.8
FTE's on February 16, 	1982 	(Respondent's Exhibit 	12, 	hereafter
R.Ex.); 	9.8 FTE's on March 24 and April 2, 	1982 	(Charging 	Party
Exhibits 6 and 7, 	hereafter 	C P . E x . ) ; 	11.2 FTE's in late April
or May 	(R.Ex. 	9 ) ; 	9.8 FTE's on May 17, 	1982 	(CP.Ex. 	10); 	and,
9.6 FTE's on May 19, 	1983 	(CP.Ex. 	11).
10

An 	additional 	weakness 	in 	the 	evidence 	related 	to 	the 	use
of 	a 	92 percent projection 	standard 	is 	that 	it was 	otherwise
unrelated 	to 	any 	contemporaneous 	documentary 	records, 	unlike
the 	200-plus 	student 	loss 	that was predicted. 	Thus, 	it 	is
impossible 	to corroborate 	application 	of 	the 	percent 	standard
to the English department 	or 	to any 	other 	course 	area, 	much
less 	judge 	the weight 	this 	approach was 	given within 	the 	mix 	of
other 	standards 	that 	were 	used.
Beyond 	this 	insufficiency, 	the 	92 percent 	figure was 	tied
to fall 1981 English enrollment, 	thereby disregarding 	the
obvious 	fact 	that 	at 	least 	six more 	classes 	(taught 	by Peterson
and Werfel) 	were 	added 	in 	the spring 	1982 	semester 	in order 	to
satisfy programmatic and 	student 	needs, 	as well as 	to 	lower
class 	sizes. 	Assuming 	some 	validity 	to 	the 	percentage 	standard
as 	a planning 	tool, 	the 	District 	should 	have 	raised 	its
projected 	enrollment 	percentage 	to 	take 	these 	required 	classes
into 	account. 	Had 	the 	percentage 	standard 	been 	fully 	and
fairly 	computed, 	additional 	English 	sections 	would 	have 	been
projected 	for 	1982-83.
On 	the 	related 	issue 	of 	translating 	the 	expected 	200-plus
student 	loss 	into an FTE 	reduction, 	Passantino's 	testimony
represented 	the 	only 	evidence 	by 	a District 	official 	answering
the 	direct 	question of 	why 	the 	proposed 	school-wide 	cutback
went 	beyond 	the 	7.0-plus 	FTE 	figure 	that 	follows 	from 	the
estimated 	loss. 	Passantino 	stated 	that 	the 	higher 	figures
11

resulted 	from 	the 	addition 	of 	administrative 	and 	counseling
cuts, 	as well as 	an 	initial base 	figure 	in February 1982 of
1620 students, 	not 1565. 	But 	this 	explanation does 	not square
with 	the 	several documents 	produced 	and 	used 	by 	the 	District
(and by Passantino), 	all of which, 	commencing 	in February,
projected 	a school-wide 	drop 	to about 	1565, 	as well as 	teacher
cuts 	in 	the 	range of 	9.6 	to 11.2, 	exclusive of 	any
administrative 	or 	counseling 	reductions.
Beyond 	this 	point, 	as 	noted above, 	during 	spring 	1982 Hamm
disputed 	the 	District's projections 	of 	a 	200-plus 	student 	loss
for 	1982-83. 	He 	contended 	that 	enrollment 	from 	feeder 	junior
high 	schools 	would 	be 	up, 	thereby 	requiring 	more 	composition
classes 	for 	sophomores. 	He 	also argued 	that 	not 	enough English
courses 	were 	planned 	for 	juniors 	and 	seniors 	needing 	to 	fulfill
their 	program requirements. 	According 	to 	the 	student
preference 	tallies 	conducted 	in April 	and May, 	Hamm claimed
that 	about 	1700 	students would 	be 	enrolled 	at Wilcox; 	that 	is,
more 	than 	100 	above 	the 	District's estimate.
Hoy 	and 	Passantino 	testified 	that 	they 	rejected 	Hamm's
predictions, 	and 	relied 	instead 	on 	the 	1565 	student 	figure
stated 	by 	a 	District 	official 	who 	had 	historically 	been 	very
accurate 	in his projections. 	Additionally, 	Passantino was 	not
inclined 	to 	risk 	a 	higher 	enrollment 	because 	he 	had 	incurred 	a
deficit 	in paying 	for 	Peterson's 	one-semester 	reassignment. 	He
was 	fearful 	that 	the 	ultimate 	student 	attendance 	in 	1982-83,
12

upon which 	school 	income would 	be 	based, 	would 	not 	justify
continuing 	a 	staffing 	level 	beyond 	the 	District's 	own
projections. 	However, 	the 	attendance 	figure 	in October 	1982
that 	was 	eventually used 	for 	income 	computation 	in 	1982-83 	was
about 1680.
D. 	The April 	1982 	reassignment 	and 	grievance.
In late-March 	1982 	Hamm was 	informally 	notified 	that 	he 	was
going 	to 	be 	reassigned. 	Official 	notice 	from Passantino
followed 	on April 	2. 	The 	principal 	cited 	declining 	enrollment
as 	the 	justification 	for 	a 	school-wide 	9.8 	FTE 	reduction. 	He
referred 	to 	sections 	23.501, 	23.501.2 and 	23.512 of 	the
collective 	agreement 	with 	the Association 	as 	the 	basis 	for 	his
determination 	that 	Hamm 	would 	be 	leaving.4
On April 	12, 	Hamm 	received 	notification of 	the 	names 	of
teachers 	placed 	in 	the 	involuntary 	transfer 	pool, 	including 	his
4Those 	contract 	sections 	were 	part 	of 	an 	article 	entitled
"Reassignment 	and 	Transfer 	Related 	to Discontinuation 	of 	School
and Classes," 	and 	stated 	in 	full:
23.501 	The 	following 	guidelines will 	be
utilized when 	transfers 	are 	required 	as 	a
result 	of 	a 	reduction 	in full-time 	teaching
positions:
23.501.2 	When 	a 	full-time 	teaching 	position
is 	reduced 	in a school at 	the 	7-12 	level,
the 	employee 	to 	be 	transferred 	shall 	be 	the
teacher 	in 	that 	school with 	the 	least
District 	seniority 	(certificated 	service 	in
13
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

own, 	and 	of 	the openings 	available 	throughout 	the District.
His grievance 	was 	filed 	the 	same 	day.
the District) 	so long 	as 	it 	is 	in the 	best
interest of 	the District, 	or 	unless 	there 	is
a volunteer. 	(See 	23.512)
23.512 	Procedure 	related 	to 	reassignment
and 	transfer 	of 	certificated 	personnel 	due
to 	discontinuation 	of 	school or 	classes 	at
the 	7-12 	level:
1. 	The principal 	shall determine 	the
least 	senior member(s) 	of 	the 	certificated
school staff.
2. 	The principal shall 	attempt 	to
reorganize 	his/her 	program 	in 	order 	to
utilize 	the 	least 	senior 	teacher (s) 	to
provide 	for 	the 	necessary 	reduction 	in
certificated 	staffing 	positions.
3. 	Should 	#2 	above 	not 	provide 	for 	an
appropriate program for 	the 	students, 	the
principal 	shall continue 	this 	procedure 	in
inverse 	order 	of 	seniority 	(low 	or 	high)
until:
3.1 	The 	needs 	of 	the 	students 	are met;
3.2 	The 	necessary 	reductions 	are
accomplished.
4. 	Those 	individuals 	who have 	been
reduced 	through 	the 	above 	procedure 	shall 	be
made 	a 	part 	of 	the 	involuntary 	transfer 	pool
of 	the 	District, 	and 	they 	will 	be eligible
for 	assignment 	based 	upon 	their 	seniority,
credential and 	experience.
Hamm's 	grievance 	alleged 	that 	the 	seniority 	requirement 	of
the 	contract 	was 	violated. 	An addendum to 	his 	submission
referred 	to 	his 	extensive 	teaching 	experience 	in writing
courses, 	to his ability to teach drama, 	and 	to his
14
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

then-developing 	training 	and 	expertise 	with 	word 	processing 	and
computer 	equipment, 	including 	the 	computer 	education Hamm had
received. 	Passantino denied 	the grievance on April 	15, 	1982,
claiming 	that 	the 	reassignment was 	in 	the 	school's 	best
interest 	because 	another 	teacher 	had 	demonstrated 	ability 	in
the 	drama and 	computer 	areas, 	and 	because 	that 	teacher's
80 	percent 	assignment 	fit 	in with 	the 	overall projected
cutback. 	The 	importance 	of 	a drama class 	was 	emphasized 	by
Passantino. 	The date 	of 	hire 	of 	the 	teacher 	retained,
Steve Smallwood, was 	1969, 	two years 	after Hamm's.
A 	few 	days 	later 	Hamm 	appealed 	the 	denial 	to 	the 	District's
personnel manager, 	Nick Gervase. 	Hamm restated 	his
qualifications, 	emphasized 	the 	importance 	of 	the writing
program, 	urged 	that 	he 	be 	retained 	to 	teach 	a speech 	and 	debate
course, 	and 	challenged 	the 	conclusion 	that 	Smallwood 	had 	better
computer-teaching 	qualifications. 	Hamm also 	argued 	that 	giving
preference 	to a part-time 	employee, 	before 	student preferences
had 	even 	been 	assessed, 	gave 	him an 	unfair 	advantage 	over
full-time 	teachers.
Gervase 	overruled 	Passantino 	and 	granted 	Hamm's 	grievance
on April 	29. 	Gervase's 	conclusion, 	which was 	issued 	following
a conversation with Hamm, 	was 	that 	Hamm was 	sufficiently
qualified 	and 	experienced 	to 	teach 	drama, 	computer 	and 	other
courses, 	and 	had 	greater 	seniority 	than Smallwood.
15

At 	the 	formal 	hearing, 	Passantino 	testified 	that he 	could
not 	recall 	Hamm's 	grievance 	addendum outlining 	his 	computer
skills. 	However, 	Passantino's 	uncertainty about what he 	knew
when 	the 	initial reassignment 	was 	grieved, 	was 	outweighed 	by
Hamm's 	clear 	and 	definite 	recollection 	of 	discussing 	his 	own
and 	Smallwood's 	qualifications 	with 	Passantino 	at 	their
first-step 	informal 	conversation. 	Passantino could 	not 	recall
but also did 	not 	deny 	this 	account 	in his 	testimony. 	Hamm's
recollection was 	also clear 	in 	his 	insistence 	that 	the 	addendum
was 	attached 	to 	the 	formal document 	filed 	on April 	12. 	Not
only was Hamm's 	recall 	sharper 	than Passantino's, 	but 	it was
corroborated 	by 	another 	witness 	who 	had 	a conversation with
Passantino 	about 	the 	time 	the 	first 	grievance 	was 	filed. 	In
that 	conversation with Ray 	Elwell, 	an Association 	negotiator,
Passantino 	indicated 	an 	awareness 	of 	Hamm's 	contention 	that 	he
could 	carry 	out 	computer 	work 	intended 	for 	Smallwood. 	In 	any
event, 	Passantino conceded 	that 	he 	had 	reason 	to 	know 	about
Hamm's 	computer 	background 	from 	a 	conversation 	with 	Gervase
about 	the 	time 	of Gervase's 	ruling 	at 	the 	end 	of April.
E. 	The May 	1982 	reassignment 	and 	grievance.
Nearly 	three 	weeks 	after 	Hamm prevailed 	on 	his 	first
grievance, 	he was 	again notified 	by 	Passantino 	that 	he would 	be
reassigned. 	The May 	17 	notice was 	exactly 	the 	same 	as 	the
earlier 	April 	notice, 	citing 	a 	9.8 	FTE 	reduction and 	referring
to 	the previously 	noted 	contract 	sections. 	Two days 	later,
Hamm 	received 	notification 	of 	the 	teachers 	included 	in 	the
16

involuntary 	transfer 	pool, 	and 	of 	school openings 	in 	the
District. 	Again, 	Hamm was 	in the pool. 	No new circumstances
were 	cited 	in 	either 	communication 	to 	explain 	this 	reassignment
to Hamm, 	and, 	according 	to Hamm, 	no further 	explanation was
offered 	by 	Passantino when 	Hamm 	inquired 	at 	his 	first-step
grievance conference. 	Instead, 	as observed above, 	Passantino
referred 	to 	undisclosed 	motives 	as 	the 	reason 	for 	his 	action.
Hamm 	filed 	a grievance 	on May 	23, 	referring 	to 	the previous
resolution 	in his 	favor, 	and 	also alleging 	that 	the 	second
reassignment 	violated 	the 	collective 	agreement's 	prohibition 	on
discrimination.5
Shortly 	thereafter, 	Hamm's grievance 	was 	denied 	by
Passantino. 	On June 	8, 	Hamm appealed 	to Gervase. 	Hamm
asserted 	that 	the 	reassignment 	was 	also 	an 	unfair 	labor
practice. 	Gervase 	denied 	the 	grievance 	appeal on June 	18.
Hamm's 	attempt 	to 	have 	an 	arbitration 	hearing 	was 	unsuccessful
when 	the Association 	declined 	either 	to 	take 	the 	matter 	to
arbitration 	or 	to 	allow Hamm 	to 	represent 	himself.
5The 	relevant 	contract 	article 	states:
10.3 	Legal 	Rights
The 	District 	and 	the Association 	agree 	not
to 	impose or 	threaten 	to 	impose 	reprisals 	on
District 	employees, 	discriminate 	against
District 	employees 	or 	otherwise 	interfere
with, 	restrain, or coerce employees because
of 	their 	exercise 	of 	rights 	guaranteed by
this Agreement.
17

At 	the 	formal 	hearing, 	Passantino 	testified 	that 	his
rationale 	for 	the 	second 	reassignment 	was 	that 	the 	student
preference 	tallies 	conducted 	in April 	and May 	revealed 	a 	need
to make 	deeper 	cutbacks 	than 	originally projected 	for 	the
school 	as a whole, 	as well as 	for 	the English department.
F. 	The 	student 	preference 	tallies.
The 	District 	has 	traditionally 	used 	student 	pre-enrollment
surveys 	as 	a method 	to project 	the 	variety of 	courses 	and 	the
number 	of 	sections 	that would 	be 	assigned within 	the 	context 	of
the 	anticipated 	school-wide 	level 	of 	authorized 	FTE's.
According 	to Hoy, 	the 	results of 	the 	first survey, 	dated
April 	29, 	1982, 	indicated 	that 	approximately 104 sections were
required 	for 	the 	next 	year 	in English. 	(Hoy 	testified 	that 	he
used 	a 	27:1 	class 	size 	ratio 	for 	the 	composition 	courses.)
Figuring 	five 	sections 	per 	full-time 	teacher 	per 	semester, 	this
worked out 	to about 	10.0-plus FTE's. 	This 	is consistent with
the District's 	claim 	that 	the 	survey 	justified 	a 	deeper 	cut 	in
English 	than 	the 	1.4 	FTE's originally announced, 	but 	is 	still
inconsistent 	with 	the 	projected 	overall 	decline 	for 	Wilcox 	of
about 	200 students.
The April 	survey was 	not 	a complete poll, 	however. 	During
the 	next 	two weeks 	the preferences 	of 	several dozen 	students
were 	added 	to 	the 	original 	figures. 	The 	revised, 	updated
results were printed on May 12, 	1982. 	The 	results 	showed 	a
marked 	increase 	in 	the 	number 	of 	English 	department 	signups,
particularly 	in writing 	courses. 	A new 	estimate 	by Hamm
18

suggested 	that 	the 	appropriate 	number 	of 	course 	sections 	to
meet 	this 	revised 	demand was 	110 	for 	2 	semesters. 	Translated
into FTE's, 	this would require 	11 full 	teaching 	positions.
Nevertheless, 	according 	to Hoy, 	the 	updated May 	tally did
not 	justify 	a modification 	of 	the planned FTE cutback 	in
English, 	even 	if 	class 	size averages 	appeared 	to 	increase. 	He
anticipated 	some 	smaller 	courses could 	be 	dropped, 	and 	that 	the
extra 	signups could be 	spread 	among 	the 	existing 	sections.
Even 	if 	this 	approach 	resulted 	in a 	somewhat 	higher 	class 	size
average, 	Hoy 	anticipated 	that 	over 	the 	next year 	student
attrition would 	reduce class 	sizes. 	In 	this 	regard, 	Hoy
conceded 	that 	the 	second 	tally 	raised 	a 	doubt 	in 	his mind 	about
the 	accuracy 	of 	the District's 	initial projection of 	an
enrollment decline. 	But, 	along with Passantino, 	Hoy 	saw no
compelling 	reason 	to 	increase 	the 	previously 	accurate 	central
staff 	projection 	because 	it was 	also 	expected 	that 	the 	spring
preference 	total 	would 	go down 	over 	the 	summer.
G. 	Fall 	1982 	scheduling 	and 	assignments.
As 	the 	1981-82 	school year 	drew to a close, 	in late May or
early June, 	the 	English 	department 	submitted 	a proposed
schedule 	for 	the 	next 	year. 	Hoy 	rejected 	the plan 	in 	early
June 	because 	it 	included more 	classes 	and 	teachers, 	Hamm among
them, 	than he 	believed 	were 	justified.
On June 	3, 	1982, 	the District 	and 	the Association entered
into a new contract, 	effective 	the next month, 	that expressly
19

established 	class 	size 	averages 	for 	the 	English 	and 	physical
education 	(P.E.) 	departments. 	For 	example, 	writing courses
were 	to be 	based on a 	27:1 average, 	and P.E. 	classes on a 	40:1
ratio. 	(In the past, 	P.E. 	class 	sizes averaged 	45:1.)
The 	new 	contract 	immediately 	affected 	the 	P.E. 	staff 	by
altering 	a 	tentative 	plan 	that 	Passantino 	had 	pursued 	in May 	to
transfer 	a P.E. 	teacher, 	Ken Smith, 	to teach 	three English
courses. 	Smith, 	who had 	greater 	seniority than Hamm, 	had
grieved 	the 	reassignment 	shortly 	before 	the 	new 	contract 	was
finalized. 	According 	to Passantino's response 	in 	early June,
the 	new 	contract 	rendered 	the 	dispute 	moot 	and 	Smith 	remained
in 	P.E.
However, 	the English 	department's projections 	were 	not
altered 	as 	a 	result 	of 	the 	new 	contract. 	The District
completed 	its 	planning 	process 	in June 	and July, 	issued 	a
master 	directory 	and 	course 	schedule, 	and 	filled 	in 	teacher
assignments 	over 	the 	summer. 	In 	the 	directory, 	writing classes
were 	still 	listed 	with 	a 	30-seat 	capacity. 	At 	this 	juncture,
Hamm was 	treated 	as 	a 	reassigned 	teacher, 	along 	with 	Smallwood
and 	other 	English 	department 	personnel.
In 	addition 	to 	the 	new 	contract 	class 	size 	and 	the
Ken Smith case, 	a 	number 	of 	other 	events 	took place 	from June
through 	October 	1982 	that 	are 	relied 	upon 	by 	the 	charging 	party
to 	cast 	doubt 	upon 	the District's 	reassignment 	decision.
20

First, 	Hoy 	informed 	the English department 	that 	a 	teacher
in the Wilcox home economics department, Vera Casasanta, 	would
be 	assigned 	to 	teach 	two English 	courses. 	The master 	directory
released 	in June, 	however, 	listed Casasanta 	as 	teaching 	only
one 	course, 	the workload 	she 	eventually 	carried 	once 	the 	next
school year 	began.
Casasanta was 	the 	sole English 	teacher 	in 	1982-83 	who 	had
less 	seniority 	than Hamm. 	She 	had 	been hired 	in 1969.
Passantino 	explained 	that 	Casasanta 	was 	the 	only 	qualified
cosmetology 	teacher 	in 	the District. 	In order 	to maintain 	the
two courses 	in 	that 	vocational area, 	Passantino believed 	he was
required 	by 	District 	policy 	to offer 	her 	not 	just 	an 	80 	percent
home 	economics workload, 	but 	a 100 	percent workload, 	including
the 	single English 	course 	she 	taught. 	No written policy 	was
introduced 	in 	evidence 	requiring 	the 	District 	to give 	teachers
in mandated 	course 	areas 	such 	as 	vocational 	arts 	a 	full-time
program. 	Nor, 	for 	that matter, 	did Passantino or 	any District
official 	cite 	any 	other 	instance 	where 	the 	policy was 	applied.
On 	the 	other 	hand, 	the 	record 	is 	replete with part-time
instructors 	in 	several 	departments 	that 	were 	also designated 	by
Passantino 	as 	mandated 	program 	areas.6
6 The 	District's 	seniority 	roster 	also 	indicates 	that 	two
English 	teachers 	in 1982-83, 	Jeanette Brunton and Dick Tuttle,
had 	the 	same 	seniority 	as 	Hamm 	but 	remained 	in 	the 	department.
Although 	no 	direct 	evidence 	was 	offered 	by 	the 	employer 	about
its decision 	to 	keep 	those 	employees 	at Wilcox, 	instead of
keeping Hamm, 	circumstantial 	inferences may 	be drawn. 	For
21

example, 	it may 	be 	indirectly 	inferred 	from other 	evidence 	that
Tuttle's 	assignment 	to 	English-language 	acquisition 	courses
required 	foreign 	language 	ability 	that 	Hamm did 	not 	possess.
Brunton, 	on 	the other 	hand, 	taught a 	traditional mix of
literature 	and writing 	courses, 	as well 	as 	serving 	as 	the
yearbook 	supervisor. 	Yet, 	the 	yearbook program would 	not
constitute 	a 	likely distinction 	from Hamm's 	qualifications 	in
light 	of Passantino's request 	to Brunton 	in fall 1982, 	which
she 	rejected, 	that 	she 	switch 	the 	yearbook class 	to an
after-school hour 	(at less pay) , 	in order 	to take on an extra
English 	course 	the 	principal wanted 	to 	add.
Second, 	by June, 	Passantino determined 	that 	the 	enrollment
figures 	for 	the 	speech 	and 	debate 	class, 	and 	for 	the drama
course, 	were 	too low 	to warrant 	inclusion 	in 	the next year's
schedule. 	The 	student pre-enrollment 	for 	these courses, 	which
Hamm was 	qualified 	to 	teach, 	was 	comparable 	to enrollment 	in
previous years, and, 	in the case of speech and debate, 	the
24 	signups 	were 	higher 	than 	the 	20 	student 	cut-off 	point 	that
Hoy 	claimed 	was 	applied.
Third, 	just before 	the 	start 	of 	school 	in early
September 	1982 	Passantino 	assigned 	three 	computer 	classes 	to
Jean Suzuki, 	a math 	teacher 	with 	the 	same 	seniority as Hamm but
whose 	name 	had 	not 	been mentioned 	previously 	in 	connection 	with
the 	subject 	area. 	Passantino claimed 	that 	Suzuki 	was 	hired 	to
teach 	computer 	programming, 	not 	the 	computer 	literacy courses
that 	Smallwood 	and 	Hamm were 	qualified 	to 	teach. 	Passantino
explained 	at 	the 	hearing 	that 	the 	programming 	orientation 	was
based 	on 	the 	signups 	of 	incoming 	sophomores 	who 	had 	already
22

taken 	computer 	literacy 	instruction, 	and 	that 	Suzuki's 	math
background 	fit 	with 	this 	approach. 	This 	late 	summer 	decision,
according 	to Passantino, 	was 	also consistent 	with 	a last minute
decision 	of 	the 	school 	board 	to purchase 	new 	computer 	equipment
for 	another 	high 	school 	in 	the District, 	thereby allowing 	a
transfer 	of 	additional machinery 	to Wilcox.
Other 	evidence, 	however, 	raises questions about
Passantino's decision 	to hire Suzuki. 	For 	one 	thing, 	student
pre-enrollment 	figures 	showed 	approximately 	a 	200 	to 	120
preference 	for 	literacy 	over 	programming. 	This 	was 	consistent
with 	a pre-school 	teacher 	schedule 	released 	in 	the 	summer 	that
planned 	two 	literacy 	courses 	and 	one 	programming 	course,
leaving 	the 	teacher 	assignment 	"to 	be 	announced." 	More
significantly, 	the District did 	not 	call Suzuki 	as 	a witness,
and 	Hamm's 	testimony 	about 	his 	own 	qualifications 	as 	well 	as
his conversations 	with 	Suzuki 	when 	she 	was 	assigned 	indicated
that 	he 	was 	equally well-qualified 	to 	teach 	the 	computer
courses 	she 	was 	eventually given, 	since 	each 	had 	completed
comparable 	training 	programs. 	Indeed, 	Hamm 	testified without
contradiction 	that 	the 	new 	equipment 	purchases 	only 	resulted 	in
the 	transfer 	of 	more 	of 	the 	same 	kind 	of 	machinery 	that Wilcox
already possessed. 	In any 	event, 	Passantino never 	made 	any
inquiry 	about Hamm's 	computer 	ability, 	despite 	the 	resolution
of 	the 	first 	grievance, 	and 	never 	offered 	him 	the part-time,
60 	percent 	position offered 	Suzuki.
23

Fourth, 	the 	average writing class 	size 	in the English
department 	exceeded contractual norms, 	according 	to 	the
District's 	own admission, 	after 	the 	school year 	began. 	In
order 	to adjust 	to 	the 	situation, 	and 	to accommodate 	the 	higher
than projected 	enrollment, 	Passantino 	consolidated 	some 	lower
enrollment 	reading 	and 	typing 	classes, 	and 	shifted 	teachers 	to
take 	on 	three 	new composition courses. 	These 	teachers 	included
one 	from 	the 	business 	department 	and 	another 	from 	the
counseling 	staff. 	Each 	teacher 	had 	seniority 	greater 	than
Hamm. 	Even after 	this 	switch, 	other 	evidence 	in the 	form of 	a
class 	size 	protest 	by 	the Association 	suggests 	that 	the 	section
averages 	were 	still 	beyond 	the 	contractual limits, 	and 	that
Passantino, 	citing a 7 	percent 	drop over 	the 	course 	of 	the
1981-82 	year, 	expected 	to deal with 	the 	problem by 	gradual
student 	attrition.7
7The 	uncontradicted Association 	figures, 	dated
October 	11, 	1982, 	reveal 	that 11 writing classes had a total of
30 	students 	over 	the 	appropriate 	average, 	8 	sophomore
composition classes were 	22 	students 	over 	the 	average, 	and 	the
7 	other 	writing 	courses 	were 	a 	total of 	9 	students 	over 	the
average.
The 	testimony 	of Roseanne 	Rasul, 	also uncontradicted,
provides 	a 	telling 	insight 	about 	Passantino's 	awareness 	of 	his
class 	size problem at 	the 	start 	of 	the 	school year. 	According
to 	that witness, 	who had less 	seniority 	than Hamm, 	when she
inquired 	about 	picking 	up 	some English 	classes 	instead 	of
continuing 	as a 	substitute 	teacher, 	Passantino told 	her 	she
could 	have 	the 	job 	if 	she would get Hamm off 	his 	back. 	This
comment might 	be viewed 	as a 	joke, 	as 	there was other 	evidence
that Passantino had 	a lively sense 	of 	humor. 	However, 	this
24

mitigating 	explanation was 	not 	made 	by 	respondent 	for 	the
comment to Rasul and, 	under 	the circumstances, 	the
administrative 	law 	judge 	finds 	that 	Passantino's 	remark 	should
be 	taken at 	face 	value 	as 	an 	indication 	of 	the pressures 	he
felt 	arising 	from 	large 	class 	sizes 	after 	Hamm's 	reassignment.
The 	significance 	of 	these larger 	class 	sizes, 	regardless of
attrition 	in 	the 	coming months, 	was 	that 	the 	District's
attendance-based 	income 	for 	1982-83 	would 	be 	derived 	from
enrollment 	figures computed 	in October. 	Thus, 	in effect, 	the
District 	did 	not 	utilize 	the 	full 	number 	of 	FTE's 	in English 	to
which 	it would 	be 	entitled 	under 	the 	state's 	school 	income
formula.
Fifth, 	a number 	of 	sophomore 	students 	had 	no writing 	class
available 	in 	the 	first 	semester 	of 	1982, 	although 	the
District's 	English 	sequence 	apparently 	required 	two 	consecutive
semesters. 	The 	estimates 	of 	the 	number 	of 	unplaced 	sophomores
varied 	from 25 to 30 	(Passantino and Hoy), 	to 38 	(the
Association). 	Hoy 	testified 	that 	the 	sophomore English program
could 	be 	satisfied 	by 	allowing 	those 	sophomores 	to double-up 	in
later 	semesters 	with 	two courses 	at 	the 	same 	time. 	He 	offered
no 	explanation 	about 	how 	this 	would 	affect 	the 	prerequisite
nature 	of 	the 	fall 	semester 	course 	work. 	Nor 	did Hoy 	explain
what 	would 	be 	done 	to create 	class 	space 	in the 	spring 	within a
program supposedly 	fixed 	for 	the 	entire 	year. 	In 	the 	end, 	to
avoid 	hallway wandering, 	the 	unplaced 	sophomores 	were 	assigned
to a 	study 	hall 	for 	one 	period 	a day.
25

Finally, 	according 	to Passantino's 	testimony, 	the actual
FTE 	figures 	for 	Wilcox 	in 	1982-83 	reveal 	that 	the 	reduction
from 	the prior 	year 	totaled only 	6.6 	FTE's; 	that 	is, 	below 	the
9.6 	to 	11.2 	reductions 	anticipated 	the 	previous 	spring. 	The
6.6 FTE 	figure 	also exceeded 	the 	necessary FTE 	reduction 	if
computed 	on 	the 	basis 	of 	the 	actual decline 	in enrollment 	of
about 	100 students. 	On that 	basis, 	using a 	30:1 	school-wide
class 	size, 	the Wilcox cutback 	should have 	been 	about
3.3 FTE's. 	Similarly, 	the 	final 	reduction 	in 	the English
department 	of 	1.6 	FTE's 	subtracted 	from 	12.0 	FTE's 	in 	1981-82
(excluding Peterson and Werfel), 	was 	below the earlier
projection of 	2.2 	that was 	used 	to 	reassign Hamm. 	If 	taken
literally, 	Hamm, 	as 	the next 	in order 	on 	the 	seniority ladder,
had 	0.6 	of 	a position 	in 	the English 	department 	to which 	he was
not 	assigned. 	This also does 	not 	take 	into account 	either 	the
computer 	courses, 	or 	those English 	classes 	never 	created 	but
nonetheless 	justifiable 	on 	the 	basis 	of 	actual 	enrollment 	and
class 	size 	figures.
H. 	Credibility observations.
Hamm's 	overall 	testimony 	was 	forthright 	and 	clear 	and 	his
recollection of 	details 	was 	impressive. 	He was 	obviously
familiar 	with 	traditional departmental 	and 	school procedures,
as 	well 	as 	with 	the educational 	needs 	of 	students 	established
by District program requirements. 	It 	is 	noteworthy 	that Hamm
willingly 	conceded 	that 	he 	had 	a 	longstanding 	positive
26

relationship with 	Passantino, 	while 	also 	admitting 	that 	he
probably was, 	as Passantino described, 	a 	"pain 	in the ass"
because 	of 	Hamm's 	staffing 	complaints 	in 	1981-82.
Passantino's testimony, 	however, 	when he was examined 	as 	an
adverse witness 	by 	the 	charging 	party, 	was 	too often glib and
facetious, 	or 	evasive 	and 	non-responsive. 	From time 	to time,
when 	Passantino's 	nervousness 	or 	embarrassment 	was 	most
evident, 	he 	glanced 	toward 	his 	counsel as 	if 	to seek
assistance. 	Passantino was 	also less 	than 	forthcoming 	or
consistent when questioned 	on several points: 	for 	example, 	on
the FTE 	reduction 	figures 	and plans 	that 	were 	used 	at 	different
times; 	on his response, 	if any, 	to fluctuations 	in the student
pre-enrollment 	tallies; 	and, 	on 	the comparative 	basis 	for 	his
determination 	that 	Suzuki 	had 	better 	qualifications 	than Hamm
to 	teach 	the 	computer 	courses. 	In contrast, 	the plausibility
of 	Passantino's 	testimony 	improved 	when 	examined 	by 	the
District's 	counsel, 	but 	this 	examination was 	often 	tied 	to
leading 	questions 	and 	suffered 	from 	that 	limitation.
Although 	one 	can 	understand 	the 	uncertainties 	of 	a 	high
school principal 	faced 	with 	cutting 	staff 	because 	of 	projected
enrollment 	losses, 	therefore 	having 	to choose 	between many
qualified 	instructors 	and worthwhile 	courses, 	that
understanding 	and 	its 	related 	testimonial 	weight 	was 	eroded 	not
only because 	of 	the 	demeanor 	problems 	described 	above, 	but
27

because 	of 	two 	significant 	failings 	in 	Passantino's
recollection.
First, 	in connection with Hamm's computer 	instruction
skills, 	Passantino denied 	knowledge 	of Hamm's relevant
background 	when 	the 	Suzuki 	assignment 	was 	made.8 Yet 	the
record 	strongly 	supports 	the 	finding 	that 	Passantino 	was 	on
notice, 	as 	early as April 	and 	no later 	than 	the previous May,
that 	Hamm 	had 	substantial 	training 	and 	experience 	in 	the
field. 	Second, 	when 	initially asked, 	Passantino denied
knowledge 	that 	Smith 	filed 	a 	grievance 	about 	his 	English
department 	reassignment, 	and 	only 	recalled 	the 	protest 	when
shown 	Smith's 	grievance 	and 	his 	own 	response.
Rather 	than 	conclude 	that 	these 	were 	mere 	memory 	lapses 	in
the context of a complex period of 	choices, 	the 	inference can
be 	drawn 	that 	Passantino was 	attempting 	to obscure 	the
availability 	of 	course 	work 	for 	Hamm, 	or 	to diminish Hamm's
qualifications 	as 	known 	to Passantino when 	a crucial 	hiring
decision was made.
8 The 	exchange 	with 	Passantino 	included 	the 	following
Q. 	Do you recall what Mr. 	Hamm's 	background
experience with 	computers 	was 	at 	that 	time?
A. 	I 	knew 	that 	he 	was 	using 	computers 	to
make 	some 	crossword 	puzzles 	for 	his 	class
but 	nothing more 	than 	that. 	(Reporter's
Transcript, Vol. III, pp. 	42-43.)
28
..

Finally, 	adverse 	inferences 	will 	be 	drawn 	from admissions
attributed 	to Passantino 	by 	the 	testimony of 	other 	witnesses.
In one 	instance, 	Passantino could 	not 	recall 	but 	also did 	not
deny 	imputations 	of 	a pretextual 	reassignment 	and 	of 	an
ulterior 	motive 	that 	were 	conveyed 	in 	a 	first-step grievance
conversation with 	Hamm 	after 	the 	second 	reassignment 	notice.
Passantino's 	complete 	failure 	to 	remember 	anything 	about 	the
discussion cast 	a shadow 	over 	that 	part 	of 	his 	testimony. 	In
another 	instance, 	Passantino's 	claim 	that 	he 	merely 	declined 	to
discuss 	a 	still-tentative 	personnel 	decision 	with Mulvihill
when 	asked 	by 	that 	teacher 	about Hamm's 	reassignment, 	was 	an
inadequate 	explanation 	and 	denial 	of 	the 	point-by-point
testimonial 	narrative 	given 	by Mulvihill 	that 	had 	the 	ring 	of
truth. 	That 	testimony 	strongly 	suggested 	that 	Passantino's
motivation 	was 	something 	other 	than 	strictly 	related 	to
seniority, 	programmatic needs or 	Hamm's abilities.
CONCLUSIONS 	OF 	LAW
A. 	Introduction.
By 	its 	terms, 	section 3543.5 (a) 	of 	the Act prohibits
discriminatory 	action 	against 	an 	employee 	for 	engaging 	in
conduct protected 	by 	the EERA, 	including,
. 	. 	. 	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. 	(Sec. 	3543.)
29

In Carlsbad 	Unified 	School District 	(1/30/79) 	PERB Decision
No. 	89, 	and 	in Novato Unified School District 	(4/30/82) 	PERB
Decision No. 	210, 	the Board 	set 	forth 	the 	standard 	by which
charges 	alleging 	discriminatory 	conduct 	under 	section 	3543.5(a)
are 	to be decided. 	The Board 	summarized 	its 	test 	in a decision
issued 	the 	same 	day 	as Novato;
. . . 	a party alleging 	a violation 	. 	. 	. 	has
the 	burden of 	making 	a 	showing 	sufficient 	to
support 	the 	inference 	that 	protected 	conduct
was 	a 	"motivating 	factor" 	in 	the 	employer's
decision 	to engage 	in 	the 	conduct 	of which
the 	employee 	complains. 	Once 	this 	is
established, 	the 	burden shifts 	to the
employer 	to demonstrate 	that 	it would 	have
taken 	the 	same 	action 	even 	in 	the 	absence 	of
protected 	conduct. 	As 	noted 	in Novato, 	this
shift 	in 	the 	burden 	of 	producing 	evidence
must 	operate 	consistently with 	the 	charging
party's 	obligation 	to 	establish 	an 	unfair
practice 	by 	a preponderance 	of 	the 	evidence.
(California State University, 	Sacramento
(4/30/82) 	PERB Decision No. 	211-H at
pp. 	13-14.)
The 	test 	adopted 	by 	the 	Board 	is 	consistent 	with precedent
in California 	and 	under 	the 	National 	Labor 	Relations Act 	(NLRA)
requiring 	the 	trier 	of 	fact 	to weigh 	both 	direct 	and
circumstantial 	evidence 	in 	order 	to 	determine 	whether 	an 	action
would 	not 	have 	been 	taken 	against 	an 	employee 	but 	for 	the
exercise of protected 	rights. 	See, 	e.g., Martori Brothers
Distributors v. 	Agricultural Labor 	Relations Bd. 	(1981)
29 Cal.3d 721, 	729-730; Wright Line, 	Inc. 	(1980) 	251 NLRB 150
30

[105 LRRM 1169] 	enf., 	in part, 	(1st Cir. 	1981) 	662 F.2d 899
[108 	LRRM 2513].9
Hence, 	assuming a prima facie case 	is presented, 	an
employer 	carries 	the 	burden 	of 	producing 	evidence 	that 	the
action 	"would 	have 	occurred 	in 	any 	event." 	Martori 	Brothers
Distributors v. 	Agricultural Labor 	Relations Bd., 	supra,
29 	Cal.3d at 	730. 	Once 	employer 	misconduct 	is demonstrated,
the 	employer's 	action,
. 	. 	. 	should not be deemed an unfair 	labor
practice 	unless 	the 	Board 	determines 	that
the 	employee 	would 	have 	been 	retained 	"but
for" 	his 	union membership or 	his performance
of 	other 	protected 	activities. 	(Ibid.)
B. 	Prima 	facie case.
Several factors, 	taken together, 	support 	a conclusion 	that
the 	charging 	party demonstrated 	a prima 	facie 	case 	of
discriminatory 	treatment. 	(After 	reviewing 	these 	factors, 	the
District's 	business 	justifications 	will 	be 	examined.)
First, 	the 	charging 	party 	introduced 	sufficient 	evidence 	to
satisfy 	the 	threshold 	requirement 	of 	a 	nexus 	between 	his
protected 	concerted 	activities 	and 	his 	reassignment 	in May 	1982.
9The 	construction 	of 	similar 	or 	identical provisions 	of
the NLRA, 	as 	amended, 	29 U.S.C. 	151 et seq., may be used to
guide 	interpretation of 	the EERA. 	See, 	e.g., 	San Diego
Teachers Assn. 	v. 	Superior Court 	(1979) 	12 Cal.3d 1, 	12-13;
Fire Fighters 	Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 608,
616. 	Compare 	section 3543.5(a) 	of 	the Act with 	section 8(a)(3)
of 	the 	NLRA, 	also prohibiting 	discrimination 	for 	the 	exercise
of 	protected 	rights.
31

Leaving 	aside 	for 	the 	moment 	the 	protected 	nature 	of 	Hamm's
activities 	up to and 	through 	the 	1981-82 	school year, 	his
second 	reassignment 	notice 	in May 	followed 	less 	than 	three
weeks 	after 	he 	had 	prevailed 	on 	a grievance 	challenging 	his
first 	reassignment. 	Attempts 	to enforce 	negotiated 	terms,
including 	the 	filing 	of grievances 	by 	individual employees, 	are
considered 	by 	the 	Board 	to 	be 	participation 	in collective
activity 	that 	is 	protected 	against 	retaliation. 	San Leandro
Unified School District 	(2/24/83) 	PERB Decision No. 	288;
North 	Sacramento 	Unified School District 	(12/20/82) 	PERB
Decision No. 	264. 	The 	timing 	of 	the alleged discriminatory
conduct 	is 	also a relevant 	analytical 	factor. 	(Id.)
-
The District 	contends 	that 	a 	nexus 	between Hamm's 	protest
and 	his 	reassignment 	has 	not 	been 	adequately 	established
because 	Hamm had 	been 	active 	in 	union 	affairs 	for 	many 	years
without 	any 	District 	retaliation. 	However, 	Hamm's 	successful
grievance 	in April was 	the 	first 	time 	he 	had 	a personal 	stake
in a protest, 	and was 	also the 	first 	time 	he 	had directly
challenged 	a 	Passantino decision. 	Passantino's 	failure 	to give
Hamm 	any 	advance 	notice 	or 	explanation 	of 	the 	second
reassignment, 	despite 	their 	long-standing 	relationship 	and
instead 	suggesting 	concealed 	reasons, 	also 	indicates 	that 	the
situation was 	not 	"business 	as 	usual." 	These 	factors
distinguish 	the 	present 	case 	from 	the 	history 	of 	grievances
involving 	other 	persons.
32

Furthermore, 	without 	resolving 	whether 	the 	first
reassignment was 	discriminatory, 	ample 	evidence 	indicates 	that
Hamm's 	protest 	activities 	intensified 	in 	1981 	and 	1982 	and put
Passantino 	in difficult, 	possibly embarrassing positions. 	For
example, 	Hamm's 	support 	for 	the 	school board 	recall campaign,
over Passantino's opposition, 	was 	a dramatic means 	of 	appealing
for 	community 	support 	to 	save 	school programs 	and 	jobs. 	Hamm's
disputes 	with 	Hoy 	over 	enrollment 	projections 	also put
Passantino 	in 	the 	middle 	of 	a 	conflict 	situation 	generated 	by
Hamm, 	as 	did Hamm's protest 	regarding 	lesson plans 	and
evaluations.
Nor 	is 	it relevant, 	from the District's standpoint, 	that,
except 	for 	his May 	1982 grievance, 	Hamm's 	concerted 	activities
did 	not 	follow 	the 	usual path 	of 	working 	only 	through 	the
Association 	as 	the 	exclusive 	representative. 	The 	activities
were 	still 	protected 	under 	the Act. 	San 	Leandro 	Unified 	School
District, 	supra, 	PERB Decision No. 	288. 	Hamm's opposition to
school closures 	in 	1981 was patently related 	to 	teacher
employment 	opportunities. 	His 	recall work 	securing 	the
endorsement 	of 	the 	local AFL-CIO was 	consistent 	with 	this
perspective. 	And 	his 	representation 	of 	fellow English
teachers, 	in his capacity as 	a rank-and-file department 	chair,
concerned 	issues 	of 	collective 	interest 	such 	as 	class 	size,
workload 	and 	evaluation procedures, 	and 	the 	enforcement 	of
negotiated 	rights. 	Although 	rumors 	of Association concern
33

about 	Hamm's 	success 	might 	reflect 	the 	sensitivity 	of 	an
incumbent 	toward 	a rival union, 	there 	is 	no evidence 	that
Hamm's 	substantive 	positions 	were 	actually 	opposed 	by 	the
Association or 	that 	he 	sought 	negotiations 	to bypass 	the
exclusive 	representative; 	indeed, 	the Association's class 	size
protest 	in October 	1982 	seemed 	to pick 	up where 	Hamm 	left 	off
the previous 	spring.
A 	second 	aspect 	of 	the 	prima 	facie 	case 	is 	evidence 	that
Hamm's 	reassignment 	was 	inconsistent 	with 	other 	circumstances
related 	to projected 	enrollment 	and 	course 	planning. 	These
shifting 	and 	often 	conflicting 	justifications 	advanced 	by 	the
District 	add 	to 	the 	charging 	party's case. 	Novato Unified
School District, 	supra, 	PERB Decision No. 	210. 	Most 	important,
the 	District's 	announced FTE 	reductions 	(of 	a 	school-wide 	9.6
to 	11.2) 	were more 	severe 	than 	the 	level 	that 	could 	have 	been
authorized 	according 	to 	the 	District's 	own projection 	that
200-plus 	students would 	be 	lost. 	The 	low class 	size 	averages
for writing, 	remedial and laboratory courses, 	as well as 	the
high 	priority 	and 	enrollment 	assigned 	to English, 	provide
further 	support 	for 	this 	view.
There 	was 	also 	evidence 	that 	the 	projected 	enrollment
increase 	between 	the 	first 	and 	second 	student 	tallies 	was
disregarded, 	particularly 	for 	writing classes. 	This 	disregard
was compounded when, 	according 	to 	the master 	directory, 	the 	new
contract 	class 	size 	limits 	were 	not 	utilized 	in planning 	the
34

English department 	schedule 	in June 	1982, 	although 	the 	contract
changes were 	applied 	to physical education, 	the only other
department 	affected. 	Hamm's 	second 	reassignment 	also
contradicted 	the 	stated 	reasons 	for 	the 	first 	reassignment 	in
April; 	namely, 	the 	importance 	of maintaining 	a drama course 	and
the 	type of computer 	class 	needed. 	Last, 	speech and 	debate was
dropped 	despite 	enrollment 	sign-ups 	exceeding 	the 	cut-off 	line.
A 	third 	element 	of 	Hamm's prima 	facie 	case 	is 	that 	courses
were 	available 	for 	Hamm to 	teach. 	Hamm was 	qualified 	to 	teach
the computer 	courses, 	drama, 	speech and debate, 	Casasanta's
class, 	one or 	more of 	the new classes 	added 	in the 	fall, 	and
the 	classes 	initially 	suggested 	for 	Smith 	and Brunton. 	Based
on 	the 	uncontested 	figures 	in 	the Association's 	class 	size
protest 	in October 	1982, 	and 	the District's admissions 	in
response, 	at 	least one or 	two more writing classes were called
for 	if 	the 	contract class 	size 	limit was 	to be respected. 	In
particular, 	Passantino's 	failure 	to 	investigate Hamm's 	computer
abilities, 	or 	Hamm's 	availability 	for 	part-time work 	assigned
to others, 	adds to Hamm's prima facie case. 	Baldwin Park
Unified School District 	(6/30/82) 	PERB Decision No. 	221.
Fourth, 	the 	District 	arguably 	violated 	the 	contract's
seniority provisions 	by 	assigning 	Casasanta 	to 	teach 	English
while 	reassigning 	Hamm. 	It 	is 	undisputed 	that Hamm was 	the
more 	senior 	employee 	and 	was 	an 	excellent 	teacher 	who was
well-qualified 	to teach 	in 	the department. 	Yet, 	when Hamm
35

conferred 	with 	Passantino 	after 	the 	second 	reassignment 	notice,
the principal offered 	no explanation 	for 	his decision, 	a
failing 	that 	supports Hamm's prima 	facie 	case. 	Rio Hondo
Community College District 	(7/19/82) 	PERB Decision No. 	226.
Fifth, 	the 	charging 	party 	offered 	evidence 	of 	disparate
treatment 	in Hamm's reassignment, 	another 	relevant 	factor 	in a
prima 	facie 	showing. 	Id.; 	San Leandro Unified School District,
-
supra, 	PERB Decision No. 	288. 	As noted, 	the new contract class
size 	limits 	were 	applied 	to 	the 	physical 	education department,
but not 	to English, 	despite 	the 	increase 	in the 	second 	student
tally. 	The District 	also claimed 	that 	it 	applied 	a 	92 percent
enrollment 	projection 	to 	determine 	English 	department 	needs,
but 	there 	is 	insufficient 	evidence 	that 	comparable 	percentage
tests 	were 	applied 	to other 	departments, 	or 	that 	the 	92 percent
standard 	properly 	considered 	the 	increased 	English 	enrollment
in 	spring 	1982. 	Further, 	other 	teachers 	had 	been offered
part-time 	or 	temporary 	high 	school 	assignments 	during 	the
relevant 	time period 	in 1981-82 	and 	1982-83, 	including
Mulvihill, Smallwood, Peterson, Werfel, and Suzuki. 	Meanwhile,
Casasanta was 	given a 	full-time 	assignment 	by 	virtue 	of 	a
cross-over 	to a 	different 	subject 	area. 	Hamm was 	never 	offered
either 	a part-time 	or 	a cross-over 	assignment.
The 	weight 	of 	the 	evidence 	introduced 	by 	the 	charging 	party
supports 	the 	inference 	that 	his protected 	activity was 	a
motivating 	factor 	in his 	reassignment. 	The District's business
justification defenses 	will 	now 	be 	considered.
36

C. 	Business 	justification.
The 	District 	offers 	several 	arguments 	to 	support 	its
contention 	that Hamm was 	not 	the 	victim of 	discrimination, 	and
that 	he would 	have 	been 	reassigned 	for 	1982-83 	regardless 	of
his 	protected 	activity.
The 	District's 	first 	claim 	is 	that 	Passantino 	and Hoy
reasonably 	relied 	on 	the 	historically 	accurate 	projections 	of
the 	District's central staff 	in planning 	the 	cutbacks 	for 	the
1982-83 school year. 	However, 	this does 	not 	resolve 	the
inconsistency 	between 	the 	depth 	of 	the 	proposed 	reduction 	(9.6
to 	11.2 FTE's) 	and 	the 	amount 	that would 	have 	been called 	for
assuming 	the 	central 	staff 	projection was 	accepted
(7.0 FTE's). 	Nor 	does 	it excuse 	the use of a 92 percent
projection 	standard 	that 	ignored 	a 	substantial 	enrollment
increase 	during 	the year 	from which 	it was 	taken. 	In any
event, 	as Hoy 	conceded, 	a doubt could be 	raised 	about 	the
accuracy 	of 	the 	1982-83 	projection 	because 	of 	the 	increased
pre-enrollment 	reflected 	in 	the 	second 	student 	tally 	dated
May 12. 	The District's projections, 	therefore, 	were 	internally
inconsistent 	at 	the outset. 	Then, 	when 	faced with 	figures 	that
undermined 	the projections, 	the District 	either 	counted 	on
attrition or 	relied 	on 	spreading 	the 	students 	among 	the 	same
number 	of 	sections.
The 	District's managers 	testified 	that 	conservative 	budget
planning 	limited 	the 	employer's 	adjustment 	of 	the 	initial
37

projections 	in order 	to avoid 	exacerbating 	the 	deficit 	carried
over 	from Peterson's 	temporary hiring 	in 	spring 	1982. 	But 	this
approach 	fails 	to explain 	two 	important 	facts: 	first, 	that 	the
FTE 	cutback 	was 	more 	extreme 	than 	called 	for 	by 	central 	staff
projections, 	the 1981-82 English enrollment, 	and 	the
unexpectedly high student 	tallies; 	and, 	second, 	that once 	the
evidence 	in 	fall 	1982 	demonstrated 	the District's 	excessive
reduction, 	steps were 	not 	taken 	to withdraw Hamm's 	reassignment
and 	restore 	his 	position.
The District's 	second 	argument 	is 	that 	it 	did 	not 	violate
the 	collective 	bargaining 	agreement 	when 	Hamm was 	reassigned,
relying 	on 	the 	fact 	that 	all English 	teachers, 	with one
exception, 	had 	seniority equal 	to or 	greater 	than Hamm's. 	As
to the 	exception, 	respondent 	claims 	that 	the 	"best 	interest" 	of
the District, 	in the words of 	the contract, 	required 	it to
offer 	a 	full-time 	position 	to 	the 	lower 	seniority 	teacher.
Although 	Passantino 	asserted 	that 	the 	best 	interest 	of 	the
employer 	was 	determined 	by 	an 	existing 	District 	policy
requiring 	full-time 	employment 	for 	teachers 	in mandated 	subject
areas, 	there was 	no showing 	of 	any written policy 	so providing,
thereby 	serving 	as 	an 	exception 	to 	express 	contract 	language
that 	seniority 	should 	be 	utilized. 	Nor 	was 	there 	any 	evidence
offered 	of 	past 	cases 	in which 	the 	so-called 	policy was
applied. 	To 	the 	contrary, 	according 	to 	the 	documentary 	record,
part-time 	employment 	was 	widely 	used 	at Wilcox 	in programs
38

described 	by Hoy 	and 	Passantino 	as 	mandatory. 	Additionally,
proposing 	to 	add 	one 	course 	for 	a 	less 	senior 	cosmetology-home
economics 	teacher, 	rather 	than for 	a more 	senior 	and
outstanding 	English 	teacher, 	strains 	any 	sensible
interpretation 	of 	the 	contract's 	"best 	interest" 	language.10
The 	third 	element 	of 	the District's defense, 	related 	to 	the
fact 	that 	teachers 	with 	the 	same 	or 	greater 	seniority 	than Hamm
were retained 	(except Casasanta), 	is 	that 	there were no other
English 	classes 	scheduled 	but 	unassigned 	and 	for 	which 	Hamm was
qualified.
Granted 	that 	this 	assertion 	is correct, 	and 	that 	new
English classes 	in 	fall 	1982 were 	assigned 	to 	teachers 	who 	had
other 	classes 	dropped 	because 	of 	last 	minute 	low-enrollment
(for example, reading, typing); these classes, nevertheless,
were 	opportunities 	for 	which Hamm was 	not 	considered 	at 	all.
The District's 	claim 	also 	ignores 	the 	availability 	of 	unplaced
sophomores who were 	left 	in a study 	hall, 	students who had
signed 	up 	for 	English 	electives 	that 	were 	later 	dropped, 	and
the 	possibility of 	creating 	more 	writing 	classes 	given 	the
class 	sizes 	that 	exceeded 	contract 	limits.
10The 	conclusion 	in 	the 	text 	above 	accepts 	for 	argument
the District's 	interpretation 	that 	the 	contract 	did 	not 	require
strict 	school-wide 	seniority as 	the 	basis 	for 	reassignments,
but 	that 	the 	District 	was 	allowed 	flexibility 	in order 	to 	keep
certain programs 	and 	specially qualified 	teachers. 	Regardless,
there 	was 	no 	showing 	that 	the 	home 	economics-cosmetology
program was 	in 	jeopardy, 	thereby 	forcing 	the 	District 	to assert
its 	contractual 	leeway.
39

Even 	if, 	as 	the District claims, 	the proportion of English
sections 	to 	the 	number 	of 	total 	sections 	for 	Wilcox was
virtually 	the 	same 	in 1982-83 	as 	the year 	before, 	the 	fact
remains 	that 	Hamm could 	have 	been 	used 	to 	teach 	selected
courses 	and, 	further, 	that more 	sections could 	have been
justified 	in 	terms 	of 	actual enrollment 	upon which 	school
income would 	be 	based. 	Moreover, 	as declining 	resources 	forced
the 	District 	back 	to a basic coursework emphasis, 	one would
expect 	a 	high-priority 	subject 	area 	such 	as 	English 	to 	increase
its proportion of 	classes 	relative 	to other 	subjects. 	The
District's 	denial 	of 	discrimination would 	be 	more 	persuasive
had 	there 	been any offer 	to Hamm, 	or 	even an 	inquiry, 	related
to 	the 	change 	in circumstances 	and 	the 	availability 	of 	new
courses 	after 	Hamm's 	reassignment 	notice 	in May. 	Compare
Office 	of 	the 	Los Angeles County 	Superintendent 	of 	Schools
(12/16/82) 	PERB Decision No. 	263 	(later 	employer 	invitation to
apply 	for 	vacant position refutes 	inference 	of 	discrimination).
A 	fourth 	District 	argument, 	regarding 	the 	selection of
Suzuki 	to 	serve 	as 	a computer 	teacher 	for 	all 	three 	computer
classes, must also be rejected. 	For 	one thing, 	the employer's
evidence 	was 	inadequate 	to 	sustain 	its 	point 	that 	she was
better 	qualified. 	Suzuki was 	not 	called as 	a witness 	to
describe 	her 	qualifications. 	Passantino's 	hearsay 	testimony
was 	outweighed 	by Hamm's grievance 	addendum, 	by Hamm's direct
testimony 	about 	his 	own 	qualifications 	comparable 	to Suzuki's,
and 	by Hamm's more 	credible 	hearsay 	account 	of 	his 	conversation
with 	Suzuki 	when 	she 	was 	assigned.
40

This 	conclusion 	rejecting 	the 	District's 	justification 	is
also 	consistent 	with 	other 	relevant 	facts: 	that 	Passantino
made 	no effort 	to 	investigate 	Hamm's 	qualifications 	when 	the
late-August 	assignment was made; 	that Suzuki's 	name 	had 	never
before 	been 	raised 	in 	connection with 	the 	computer 	classes;
that 	the 	focus on computer 	programming, 	effective 	in August,
contradicted 	the 	long-term 	prior 	planning 	that 	emphasized
computer 	literacy 	classes 	in 	keeping 	with 	the 	overwhelming
student preference 	in that 	area; 	and, 	that the machines
transferred 	to Wilcox 	involved 	more 	of 	the 	same 	equipment 	that
Hamm was 	qualified 	to 	use 	in 	teaching—as 	determined 	in 	the
first 	reassignment grievance. 	For 	all of 	these 	reasons, 	and
regardless 	of 	the 	need 	for 	some 	amount 	of 	computer 	programming
course 	work, 	the 	administrative 	law 	judge 	discounts 	the
District's 	business 	explanation, 	first 	presented 	at 	the 	time 	of
the 	hearing, 	as 	a 	justification 	for 	selecting 	a 	teacher 	other
than Hamm.
A 	fifth 	defense 	advanced 	by 	the 	employer 	is 	that 	the
effective 	decision-maker 	in 	this 	case was Gervase, 	the
personnel manager, 	and 	not Passantino, 	and 	that 	there was 	no
showing 	of 	discriminatory 	animus 	by Gervase. 	It 	is 	true 	that
Gervase 	had 	the 	authority 	to overrule 	Passantino, 	as 	occurred
on 	the 	first 	grievance. 	But Passantino, 	in his role 	as 	the
school principal, 	made 	all 	the 	basic 	staffing 	decisions 	for 	his
school, 	with 	only 	limited 	review 	under 	special 	circumstances.
41

Thus, 	this 	case 	is 	far 	different 	from 	those Board 	decisions
dismissing 	claims 	of 	discrimination 	where 	there 	was 	no 	showing
that 	the 	effective decision-maker 	(Passantino 	here) 	harbored
discriminatory motivation. 	Compare, 	e.g., 	Moreland Elementary
School District 	(7/27/82) 	PERB Decision No. 	227; 	Konocti
Unified School District 	(6/29/83) 	PERB Decision No. 	217.
Finally, 	in assessing 	the merit 	of 	the District's 	asserted
business 	justifications, 	the 	administrative 	law 	judge 	has 	given
substantial 	weight 	to 	the 	inadequacies 	of 	Passantino's
testimony. 	This 	testimony 	was poor 	in 	several ways 	and 	would
tip 	the 	scales 	against 	respondent 	even 	if 	the 	other 	evidence
indicated 	a 	closer 	case. 	Passantino's 	demeanor 	showed 	an
inclination 	to hide, 	obscure 	and 	belittle 	relevant 	facts,
rather 	than 	to 	be 	forthright 	and 	open. 	He 	also had 	important
lapses 	of memory 	that 	seemed 	inherently 	improbable; 	for
example, 	regarding 	Hamm's 	computer 	expertise 	and 	Smith's
grievance. 	In conjunction with 	these 	factors was 	Passantino's
failure 	to 	fully 	explain 	inconsistencies 	in 	the 	District's
projections, 	his own planning, 	and eventual enrollment; 	his
weak 	rationales 	for 	hiring Casasanta 	and Suzuki; 	and, 	the
context 	of 	tension 	and 	personal 	challenge 	to Passantino, 	as
confirmed 	by 	other 	witnesses, 	raised 	by Hamm's 	repeated
opposition 	in a 	new 	school 	setting. 	This 	last 	facet was
underscored 	not 	only by 	Passantino's 	failure 	to 	give 	Hamm any
advance 	notice or 	explanation of 	the 	second 	reassignment, 	but
42

also 	by 	the 	principal's 	veiled 	comments 	to Hamm 	that were
perhaps 	intended 	to deflect 	the 	antagonism of 	his 	long-time
associate.
In sum, 	even 	if Passantino's motivation was mixed, 	and he
was 	attempting 	to 	reduce 	the Wilcox 	teaching 	staff 	to meet
declining 	enrollment, 	a preponderance 	of 	the 	evidence 	supports
the 	conclusion 	that Hamm's 	reassignment 	would 	not 	have 	occurred
but 	for 	Passantino's 	dominant 	discriminatory motive, 	albeit 	a
motive 	probably 	arising 	under 	the 	pressure 	of 	his 	relationship
with 	other 	administrators. 	For 	this 	reason, 	the District's
conduct 	constituted a violation 	of 	section 	3543.5(a) 	of 	the Act.
REMEDY
Section 	3541.5(c) 	of 	the EERA 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 customary 	remedy 	in 	a case 	of 	unlawful 	discrimination 	is
the 	issuance 	of 	a 	cease 	and 	desist 	order, 	and 	reinstatement 	and
back 	pay 	(with 	7 percent 	interest) 	if 	a job has 	been 	lost.
Santa 	Clara Unified School District 	(9/26/83) 	PERB Decision
No. 	104 at pp. 	26-28; 	Marin Community College District
(3/21/80) 	PERB Decision No. 	145 at pp. 	19-20. 	A cease and
desist order 	is 	appropriate 	here, 	to prohibit 	a repetition of
the 	unlawful conduct.
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A reinstatement 	remedy 	is also 	appropriate, 	starting 	in 	the
next 	school 	semester 	(San Leandro 	Unified School 	District,
supra, 	PERB Decision No. 	288), 	along with a make-whole back pay
award 	of 	the 	$500 	department 	chairman 	stipend. 	Reinstatement
and 	back 	pay 	will 	effectuate 	the 	policies 	of 	the Act 	by
ensuring 	that 	the 	victim of 	the 	discriminatory 	conduct 	will 	be
restored 	to 	the 	position 	and 	benefits 	he 	would 	have 	enjoyed 	but
for 	the 	occurrence 	of 	the 	employer's 	unlawful 	conduct.11
It 	also 	is 	appropriate 	that 	the District 	be 	required 	to
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 	this 	activity 	and 	to 	take 	certain 	affirmative 	measures. 	A
notice 	effectuates 	the 	purposes 	of 	the EERA 	that 	employees 	be
11The 	documentary 	evidence 	suggests 	that 	the 	pattern 	of
declining 	high 	school 	enrollment 	in 	the 	District 	will 	continue
into 	the 	1983-84 	school year 	and 	beyond, 	raising 	the
possibility 	that 	Hamm would 	have 	been 	reassigned 	for 	the 	coming
year 	regardless 	of 	discriminatory motivation. 	If 	the 	District
can 	show 	at 	a compliance 	hearing 	that 	it would 	not presently
have 	a position available 	in 	the 	normal course of 	events, 	then
immediate 	reinstatement 	would 	be 	unwarranted 	and 	Hamm would
have 	to await 	the 	next available opening. 	Santa Clara Unified
School District 	(5/7/80) 	PERB Decision No. 	104a. 	Of course, 	if
such 	is 	the case, 	the parties with 	the PERB's approval might
arrive 	at 	their 	own 	settlement 	adopting 	an 	alternative 	to 	the
proposed 	order.
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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 N o . 	69; 	Pandol 	and 	Sons 	v. 	Agricultural Labor
Relations Bd. 	(1979) 	98 Cal.App.3d 580, 	587; 	NLRB v. 	Express
Publishing C o . 	(1941) 	312 U.S. 	426 	[8 LRRM 4 1 5 ] .
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to
section 	3 5 4 1 . 5 ( c ) , 	it 	is 	hereby 	ordered 	that 	the Santa Clara
Unified 	School 	District 	and 	its 	representatives 	shall:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Restraining, 	discriminating against, 	or 	otherwise
interfering 	with 	the 	rights 	of 	employees, 	and 	James 	Hamm 	in
particular, 	because 	of 	the 	exercise 	of 	their 	right 	to
participate 	in 	an 	activity 	protected 	by 	the 	Educational
Employment 	Relations 	Act.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
(a) 	Upon his 	request, 	reinstate 	James 	Hamm 	to 	his
former 	position, 	or 	its 	equivalent 	position, 	at Wilcox High
School 	effective 	the 	beginning 	of 	the 	1983-84 	school 	year,
without 	prejudice 	to 	his 	seniority 	and 	other 	rights 	and
privileges.
(b) 	Make 	James 	Hamm whole 	for 	any 	loss 	of 	pay 	or
other 	benefits 	he 	may 	have 	suffered, 	including 	a 	$500 	stipend
45

for 	service 	as 	a 	department 	chair. 	The 	amount 	paid 	shall
include 	interest 	at 	the 	rate 	of 	7 	percent 	per 	annum.
(c) 	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
(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.
(d) 	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.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed Decision 	and Order 	shall
become 	final 	on July 	5, 	1983, 	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
46

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
July 5, 1983, 	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 	32135. 	Any 	statement 	of exceptions
and 	supporting 	brief must 	be 	served 	concurrently 	with 	its
filing 	upon 	each 	party 	to 	this 	proceeding. 	Proof 	of 	service
shall 	be 	filed 	with 	the 	Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part 	III, 	sections 	32300 and
32305 	as 	amended.
Dated: 	June 14, 	1983
BARRY WINOGRAD
Administrative 	Law 	Judge
-+
47