Office of Kern County Superintendent of Schools (PERB 0533E)

STATE OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION and 	ITS 	CHAPTER 512,
Charging 	Party,
v.
OFFICE OF 	KERN COUNTY
SUPERINTENDENT OF SCHOOLS,
Respondent.
Case Nos. 	LA-CE-1895
LA-CE-1987
PERB Decision No. 	533
October 31, 	1985	OFFICE OF KERN COUNTY
SUPERINTENDENT OF SCHOOLS,
Employer,
and
SUPERINTENDENT 	OF 	SCHOOLS
CLASSIFIED 	ASSOCIATION,
Employee 	Organization,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION and 	ITS 	CHAPTER 512,
Employee 	Organization.
Case No. 	LA-D-143
Appearances: 	Harry J. 	Gibbons, 	Jr., 	for the California School
Employees Association and 	its 	Chapter 	512; 	Schools 	Legal 	Service
by Frank J. 	Fekete, 	Dwaine L. 	Chambers and Carl B. 	A. 	Lange 	for
Office of 	Kern County Superintendent 	of 	Schools.
Before Hesse, 	Chairperson; Jaeger and Morgenstern, 	Members.
DECISION
JAEGER, 	Member: 	The 	Office of 	Kern County Superintendent
of 	Schools 	excepts 	to 	the 	attached proposed 	decision 	finding
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that 	it violated section 3543.5(a) 	and 	(d) 	of the Educational
Employment Relations Act 	(Gov. 	Code section 3540 et seq.) 	when,
prior 	to a 	representation 	election, 	it 	threatened 	the 	voting
employees 	with economic 	reprisals 	and 	loss 	of benefits 	if 	the
California 	School 	Employees 	Association were 	chosen as 	the
employees' 	exclusive representative, 	and when it expressed a
preference 	for 	another organization, 	namely the 	Superintendent
of 	Schools 	Classified Association.
The 	Public 	Employment 	Relations 	Board has 	considered 	the
exceptions 	to 	the proposed decision and order and, 	except 	as
the order 	is 	modified herein, 	affirms 	the proposed decision and
issues 	the 	following:
ORDER
-
Upon the entire record 	in this 	case, 	it 	is hereby ORDERED
that 	the 	Office 	of 	Kern 	County Superintendent 	of 	Schools 	shall
CEASE AND 	DESIST 	FROM:
1. 	Interfering with its 	employees' 	exercise of a 	free
choice 	in an election 	to choose 	an 	exclusive 	representative 	for
the purpose 	of 	representation 	in 	their 	relations 	with 	their
employer 	by 	threatening 	the 	employees 	with 	loss 	of benefits
resulting 	from a 	claimed need 	to 	"bargain 	from scratch," 	with
the 	likelihood 	that 	the 	employees 	will have 	to bear 	the 	cost 	of
some benefits 	not 	otherwise provided, 	with 	termination of 	the
equal 	treatment 	with 	certificated 	employees 	now 	accorded 	the
voting employees, 	and with economic 	loss 	resulting 	from the
imposition by 	the 	California 	School 	Employees 	Association
(CSEA) 	of service 	fees and union dues.
22

2. 	Encouraging 	the 	employees 	to 	join another 	organization,
namely the 	Superintendent 	of 	Schools 	Classified 	Association
(SOSCA), 	in preference to CSEA by demonstrating 	its preference
for 	dealing 	with 	SOSCA and by predicting 	a 	better 	working
relationship 	with 	SOSCA.
It 	is 	further ORDERED that:
1. 	The 	representation election conducted on March 	28, 	1984
is 	set 	aside and 	the 	results 	thereof are nullified; 	and
2. 	A new representation 	election 	shall 	be 	conducted by 	the
Los 	Angeles 	regional 	director.
It 	is 	further ORDERED that 	the 	Office of Kern County
Superintendent 	of 	Schools 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO 	EFFECTUATE THE POLICIES 	OF 	THE 	EDUCATIONAL
EMPLOYMENT RELATIONS ACT:
1. 	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 Notices 	attached as 	Appendices 	A and B
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 	these Notices 	are not 	reduced 	in size, 	defaced,
altered 	or 	covered by any material.
2. 	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 his
instructions.
Member Morgenstern 	joined 	in 	this 	Decision. 	Chairperson
Hesse's 	concurrence 	and dissent 	begins 	on page 	4.
3
3

Hesse, 	concurring and dissenting: 	I concur with the
majority 	in 	the 	finding 	that 	the 	Kern 	County 	Superintendent 	of
Schools 	(Superintendent) 	did show preference 	for 	SOSCA over
CSEA, 	and 	encouraged 	these 	classified 	employees 	to vote 	for
SOSCA. 	Such encouragement 	is 	in violation of 	Government 	Code
section 3543.5(d). 	Insofar as 	the Board has previously held
that 	the proper 	remedy 	for 	such a violation 	is 	to order 	a new
election,1 I agree that 	the election held on March 28, 	1984,
must be 	set 	aside 	and a new election be 	conducted. 	I 	further
urge 	that 	such 	election be 	conducted 	at 	the 	earliest 	reasonable
moment. 	I 	also agree with the majority decision to not
characterize 	the 	"letter of 	intent" 	as 	"anti-union literature."
I respectfully dissent, 	however, 	from the majority's
summary affirmance 	of 	the proposed decision. 	While 	the 	law
regarding 	"employer 	free 	speech" 	is 	correctly stated, 	I do not
concur 	with 	the 	characterization of 	the 	content 	of 	the
Superintendent's 	speeches, 	the application of 	the 	law and,
thereby, 	the conclusions 	regarding those speeches.
In the 	instant 	case, 	the 	Superintendent spoke 	to different
groups 	of classified employees 	in three 	sessions. 	At 	each
meeting, 	the 	Superintendent began the 	speech with a historical
"overview" 	of 	labor 	relations 	with 	the 	school 	employee
associations. 	Then he discussed 	the decertification 	effort 	of
1Clovis 	Unified 	School 	District 	(1984) 	PERB Decision No.
389; 	Sacramento City Unified 	School 	District 	(1982) 	PERB
Decision No. 	214.
4

5
SOSCA and 	the 	upcoming 	representation 	election. 	During 	the
last portion of 	a prepared 	speech, 	he 	discussed 	CSEA's 	intent
to 	execute a 	"rigid" 	contract 	and 	that 	SOSCA wished 	to 	"retain
the 	flexibility" 	the parties 	then enjoyed. 	Following 	the
speech, 	the 	Superintendent and 	the employer's 	legal 	counsel
responded 	to questions 	from 	the 	employees 	concerning 	agency
fees 	and 	the 	impact 	of 	employees' 	negotiating 	strategy on
fringe benefits.
Contrary to 	the proposed 	decision, 	the 	Superintendent did
not 	imply that 	"fringe benefits 	would 	automatically be 	reduced,
rigidity would automatically be 	imposed, 	[or that], 	if the
union 	insisted, 	agency shop would be 	the 	rule" 	if 	CSEA won the
election. 	Instead, 	the 	Superintendent 	stated that 	"if 	the
exclusive 	representative pushed 	for 	the 	adoption 	of 	a 	formal
bargaining contract, 	such hard line negotiations 	. 	. 	. 	would
cause us 	in 	[his] 	opinion to lose 	the 	flexibility" 	that
existed. 	He 	also 	indicated 	that he believed 	that 	the 	local
unit 	leadership 	would 	lose 	control 	and be 	replaced by the 	state
leadership. 	He 	recited an 	incident 	that 	occurred 	when an
employee of 	the 	state CSEA office disrupted a local 	meeting, 	as
the basis 	for 	the 	local 	leadership proposition. 	He 	then
explained 	that 	if 	the 	District was 	required 	to engage 	in hard
line negotiations, 	it could not 	start with the 	"very best
offer," 	but 	would have 	to start 	with 	something 	less 	so 	the
District 	would have 	room to negotiate. 	After 	the
Superintendent's 	prepared 	speech 	and 	in 	response 	to a 	question

6
from the audience, 	the Superintendent and 	legal 	counsel made an
attempt 	to 	explain 	agency 	shop 	and 	the 	implementation of 	agency
fees. 	The 	Superintendent 	stated 	that 	CSEA's 	original 	contract
proposal 	contained 	an agency shop provision but 	that 	it had
been withdrawn. 	In response to a question, 	the legal counsel
said:
The person 	up 	front 	asked 	some 	questions 	on
— well, 	isn't 	it 	true 	that 	there 	really
won't 	be 	an agency 	fee 	unless 	[the
Superintendent] agrees 	upon it. 	That's
true, 	but 	I don't 	think you should get 	the
impression 	that 	[the 	Superintendent] 	can
pick 	and 	choose 	which parts 	of 	the
collective 	bargaining 	agreement 	he 	will
accept 	and which ones he will 	not. 	When
you're 	talking about 	a package, 	and both
sides have 	to agree on the 	total package.
So 	[the Superintendent] 	can't say I will not
allow the agency fee. 	. 	. 	.
Only the union and he 	can agree 	on 	the 	total
package whether 	or 	not 	there will be an
agency 	fee provision 	in that, 	it 	can only be
determined 	after 	months 	of 	collective
bargaining.
Thus, 	the 	legal 	counsel 	inferred 	that 	the 	Superintendent had
some, 	but not total, 	control over agency fees.
Courts 	have 	found 	the 	following 	statements 	as 	predictions
of possibilities 	or probabilities 	to be protected: 	present 	and
future 	wage 	levels 	would be 	subject 	to 	collective 	bargaining
should 	the union win 	the 	election 	(NLRB v. 	TRW-Semiconductors,
Inc. 	(9th Cir. 	1967) 	387 P.2d 753); bargaining would have to
begin from the zero point 	(Bendix Corp. 	v. 	NLRB 	(6th Cir. 	1968)
400 F.2d 	141); 	unionization would 	create greater 	rigidity 	in
personnel relationships 	(NLRB v. 	Golub Corp. 	(2d Cir. 	1967) 	388
F.2d 921).

In the seminal 	case 	involving employer 	free speech, 	NLRB v.
Virginia Electric & Power Co. 	(1941) 	314 U.S. 	469 [9 LRRM 405],
the 	United 	States 	Supreme 	Court held 	employers 	enjoyed 	the
First 	Amendment 	right 	of 	free 	speech 	and 	afforded protection 	to
non-coercive communications. 	In NLRB v. 	Gissel Packing Co.
(1969) 	395 U.S. 	575 	[71 LRRM 2481], 	the United States Supreme
Court 	analyzed 	the parameters 	of 	employer 	free 	speech. 	Again,
basing such right on First Amendment principles, 	the 	court held:
Thus, 	an employer 	is 	free to communicate to
his 	employees 	any of his 	general 	views 	about
a particular union, 	so long as 	the
communications 	do not 	contain a 	"threat 	of
reprisal 	or 	force or promise of benefit."
He may even make 	a prediction as 	to 	the
precise 	events he believes 	unionization will
have on his 	company. 	In such a case,
however, 	the prediction must be carefully
phrased on 	the basis 	of 	objective 	fact 	to
convey an 	employer's 	belief 	as 	to
demonstrably probable 	consequences 	beyond
his 	control 	. . . . 	if 	there 	is 	any
implication 	that 	an 	employer 	may or 	may not
take 	action 	solely on his 	own 	initiative 	for
reasons 	unrelated 	to 	economic 	necessities
and known only to him, 	the statement 	is 	no
longer 	a 	reasonable prediction based on
available 	facts, 	but a threat of 	retaliation
based 	on misrepresentation and 	coercion, 	and
as 	such without 	the protection of the 	First
Amendment. 	. . . 	As 	stated elsewhere, 	an
employer 	is 	free 	only to tell 	"what he
reasonably believes 	will 	the 	likely economic
consequences 	of 	unionization 	that 	are
outside his 	control," 	and not 	"threats 	of
economic 	reprisal 	to be 	taken solely on his
own violition 	[sic]. 	Id., 	395 	US at 	618 	[71
LRRM at 	2497] 	(Citation	- 	s 	omitted.)
In NLRB v. 	Lenkurt Electric Co. 	(9th Cir. 	1971) 	438 F.2d
482 	[76 LRRM 2625], 	the Court of Appeals 	reviewed statements
made by the plant 	manager 	two weeks 	prior 	to a representation
V7

election2 and 	found 	the 	statements 	to be within 	the
2 The 	court made 	the 	following 	findings:
[The manager], 	Linka suggested that if the
employees were to unionize, 	it was possible
that 	a 	more 	strict 	regimentation of 	working
hours 	would be 	implemented. 	He 	explained
that 	under 	the present 	working 	conditions,
company policy with 	respect 	to coffee
breaks, 	lunch hours 	and conversation while
working had been 	fairly casual 	in 	the
printing department, 	while 	in the unionized
departments 	of 	the plant 	the 	employees 	were
strictly controlled 	as 	to coffee breaks,
lunch hours 	and general 	attention 	to their
labors. 	Linka 	further 	explained 	that 	if
these employees 	were 	unionized, 	and the
basis 	of 	their 	compensation 	changed 	from
monthly 	salary to 	the hourly 	rates 	which
were 	the basis 	for 	compensation of other
union employees 	in the plant, 	a more strict
observance 	of 	working 	time 	would probably
result. 	These observations 	were based
largely on 	Linka's 	own observations 	when
other 	employees 	in 	the plant 	were 	unionized
and had 	gone 	to an hourly basis 	of
compensation.
Linka 	further 	suggested 	that 	working
conditions 	might be made 	more 	difficult by
unionization because 	the Company might 	seek
to 	reduce 	operating costs 	by using 	less
expensive paper 	stock 	in 	the printing
department. 	He 	explained 	that while the
employees 	usually 	worked 	with 	"premium
stock" paper, 	that 	if it were necessary to
reduce 	costs 	he 	would probably 	introduce
lower quality stock, 	which might 	cause more
problems 	for 	the operators 	of 	the 	various
machines.
In the course of the meetings, 	Linka also
stated 	that 	sick 	leave 	and 	other 	fringe
benefits, 	particularly the company's policy
of providing 	working 	smocks 	and 	laundry
service 	to the employees, 	might be changed
by unionization. 	(Emphasis 	added.) 	(Id.,
at p. 	2627.)
8

protection of 	the 	First 	Amendment 	and 	section 8(c) 	of 	the
National 	Labor 	Relations 	Act.
While 	EERA does 	not 	contain 	free 	expression 	language
similar to section 8(c) 	of the NLRA, 	in a prior case, 	the Board
indicated 	that 	"such a guarantee 	is 	implied" 	in the 	EERA.
(Muroc Unified School 	District 	(1978) 	PERB Decision No. 	80.)
Later, 	in Rio Hondo Community College District 	(1980) 	PERB
Decision No. 	128, 	the Board held that public school 	employers
are 	entitled 	to 	express 	their 	opinions 	regarding 	employee
associations, 	unless 	the statements 	contain threats 	and
interfere 	with 	the 	employees' 	free 	exercise of 	EERA rights.
The 	Superintendent's 	speeches 	described 	the 	realities 	of
hard bargaining. 	In a hard bargaining situation, 	if 	the
union's 	wage demands 	are high, 	an employer may be 	required 	to
make 	financial 	cuts 	elsewhere 	in order 	to reach agreement. 	The
employer 	may 	reduce 	the 	expenditures 	for 	insurance premiums 	and
increase 	employee 	insurance premium 	contributions 	to
accommodate a wage demand. 	In a different 	situation 	(in a 	less
"charged" 	atmosphere) 	the employer can guarantee that 	it will
continue 	to 	fully 	fund 	fringe benefits, 	because 	it has 	more
flexibility to make adjustments 	to 	its 	salary proposals. 	While
the 	statements 	may put contract 	negotiations 	in a harsh 	light,
I do not 	find 	that 	the 	statements 	rise 	to the 	level 	of being a
threat. 	That 	the 	speech was 	critical 	of 	CSEA's position does
not mean 	that 	it 	is 	unprotected. 	(Rio Hondo Community College
District, 	supra.)
99

Further, 	no 	recognition has 	been 	given 	to 	the 	timing 	—
these 	speeches 	occurred 	three weeks 	prior 	to the 	election.
Similar 	statements 	have 	been 	found 	to 	still 	be protected 	even
though the 	statements 	were made 	to employees 	only two weeks
prior 	(Lenkurt, 	supra) 	and one week prior 	to the elections.
-
(International Filling Co. 	(1984) 	271 NLRB No. 	213 	[117 LRRM
1252].) 	Three weeks 	was plenty of 	time 	for 	CSEA to respond 	to
the 	Superintendent's 	statements.
The 	majority 	finds 	these 	speeches 	contained 	threats 	and
interfered with the 	employees' 	exercise of protected 	rights.
When 	compared with 	similar 	statements 	that 	courts 	have 	found
acceptable, 	I 	find 	the Superintendent's 	remarks 	did not
constitute 	threats 	or 	interfere 	with protected 	rights. 	Indeed,
by this 	decision 	today, 	the majority 	is 	interfering with 	the
employer's 	right of 	free 	speech.
10

APPENDIX 	A
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 	Cases 	LA-CE-1895 	and
1987 	California 	School 	Employees 	Association and 	its 	Chapter
512 	v. 	Office of 	Kern County Superintendent 	of 	Schools, 	in
which all parties had 	the 	right 	to participate, it has 	been
found 	that 	the 	Office 	of 	Kern 	County Superintendent 	of 	Schools
violated section 3543.5(a) 	and 	(d) 	of 	the 	Educational
Employment 	Relations 	Act 	by 	interfering 	with 	the 	employees'
right 	to 	freely choose 	their 	exclusive 	representative. 	As 	a
result of 	this 	conduct, 	we have been ordered to post 	this
Notice 	and we will 	abide by the 	following. 	We will:
CEASE AND 	DESIST 	FROM:
1. 	Encouraging 	employees 	to 	join a particular
organization, 	specifically, 	the Superintendent of Schools
Classified Association, 	in preference to another,
specifically, 	the 	California 	School 	Employees 	Association and
its Chapter 	512.
2. 	Interfering with the employees' 	exercise of a 	free
choice 	in 	an election 	to 	choose 	an 	exclusive 	representative
for 	the purpose 	of 	representation 	in 	their 	relations 	with 	the
Office 	of 	Kern 	County 	Superintendent 	of 	Schools 	by threatening
the 	employees 	in 	the 	event 	that 	the 	California 	School
Employees 	Association 	should be 	elected 	as 	the 	exclusive
representative 	of 	the 	classified 	employees 	with:
a) 	loss 	of benefits 	and 	the 	likelihood 	that 	the
employees 	will have 	to bear 	the 	cost 	of 	some benefits 	not
otherwise provided, 	and,
b) 	the 	loss 	of 	treatment 	equal 	to 	that 	afforded 	the
certificated employees, 	and
c) 	economic 	loss 	resulting 	from the 	imposition of
service 	fees 	and 	union dues 	by the 	California School 	Employees
Association.
Dated: 	OFFICE OF 	KERN COUNTY
SUPERINTENDENT 	OF 	SCHOOLS
By____ _By
Authorized 	Representative
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.

APPENDIX 	B
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 Cases 	No. 	LA-CE-1895
and 	1987, 	California School 	Employees Association and 	its
Chapter 	512 	v. 	Office of 	Kern County Superintendent 	of
Schools, 	in which all 	the parties had the right 	to
participate, 	it has 	been found 	that 	the Office of Kern County
Superintendent 	of 	Schools 	denied 	employees 	the opportunity to
exercise 	free 	choice 	in 	the 	representation election held 	on
March 28, 	1984.
The Public 	Employment 	Relations 	Board has, 	therefore,
ordered 	that 	the 	results 	of 	that 	election be declared 	invalid
and 	a 	new election shall 	be 	conducted by the 	Los 	Angeles
regional 	director 	of 	the 	Public 	Employment 	Relations 	Board.
Dated 	OFFICE 	OF 	KERN 	COUNTY
SUPERINTENDENT 	OF 	SCHOOLS
By
Authorized 	Representative
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
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER #512,
Charging 	Party,
v.
OFFICE 	OF 	KERN COUNTY 	SUPERINTENDENT
OF SCHOOLS,
R e s p o n d e n t .
Unfair 	Practice
Case Nos. 	LA-CE-1895
LA-CE-1987
OFFICE OF 	KERN COUNTY SUPERINTENDENT
OF SCHOOLS,
Employer,
and
SUPERINTENDENT 	OF 	SCHOOLS 	CLASSIFIED
ASSOCIATION,
Employee Organization,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Employee Organization
____.
Representation
Case 	No. 	LA-D-143
PROPOSED DECISION
(1/31/85)
)
)
Appearances; 	Harry J. 	Gibbons, 	J r . , 	Attorney for 	the
California School Employees Association and 	its Chapter 	#512,
Frank J. 	Fekete, 	Attorney, 	Carl B. 	Lange, 	III 	(Schools Legal
Service), 	for Office of Kern County Superintendent of 	Schools,
and Bob Meadows, 	President, 	for the Superintendent of Schools
Classified 	Association.
Before Barbara E. 	Miller, 	Administrative Law Judge.
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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I. 	PROCEDURAL HISTORY
LA-CE-1895
On December 14, 	1983, 	the California School Employees
Association 	and 	its 	Chapter 	#512 	(hereinafter 	Charging 	Party 	or
CSEA) 	filed 	an Unfair 	Practice Charge 	against 	the Office 	of 	the
Kern 	County 	Superintendent 	of 	Schools 	(hereinafter 	Respondent,
Office or Employer). 	In 	its charge, 	CSEA alleged various
violations of sections 3543.5(a), 	(b), and 	(d) 	of the
Educational 	Employment Relations Act. 1 Pursuant 	to 	the
practices 	and 	procedures 	of 	of 	the 	Public 	Employment 	Relations
1The 	Educational 	Employment 	Relations 	Act 	is codified
beginning 	at Government Code 	section 	3540, 	et seq. 	Unless
otherwise 	indicated, 	all 	statutory 	references are 	to 	the
Government Code.
Sections 3543.5(a), 	(b) 	and 	(d) 	provide:
3543.5. 	UNLAWFUL PRACTICES: 	EMPLOYER
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.
(d) 	Dominate or 	interfere with 	the formation or
administration of any employee organization, 	or
contribute 	financial or 	other 	support 	to 	it, 	or 	in any
way 	encourage 	employees 	to 	join 	any 	organization 	in
preference 	to another.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2	2

Board 	(hereinafter 	PERB or 	Board) 	the case 	was 	assigned 	to 	a
representative 	from the 	Office 	of 	the 	General 	Counsel 	for
purposes 	of 	investigation. 	Thereafter, 	CSEA amended 	its 	Charge
and on February 10, 	1984, 	a Complaint was 	issued.
The Complaint 	alleges 	that 	the 	Respondent, 	acting 	through
one 	of 	its 	supervisors, 	interfered 	with 	and/or 	coerced
specifically 	mentioned 	bargaining 	unit 	employees 	by 	circulating
a 	"letter 	of 	concern" 	and 	by 	urging 	employees 	to 	sign 	that
letter 	of 	concern which casts 	aspersions 	on CSEA.
After 	issuance of 	the Complaint, 	the Respondent 	filed 	an
Answer denying 	the allegations. 	Thereafter, 	an 	informal
conference was 	scheduled 	and conducted. 	When 	the parties were
unable 	to 	resolve 	their 	differences, 	the matter 	was 	scheduled
for 	formal 	hearing.
Prior 	to commencement 	of 	the 	formal 	hearing, 	CSEA sought 	to
amend 	the 	Complaint 	to 	incorporate 	allegations 	relating 	to
Respondent's conduct prior 	to 	a decertification 	election.
Subsequently, 	at the 	request of PERB, 	the Charging 	Party
withdrew 	its 	request 	to 	amend 	the Complaint 	in 	the 	instant case
and 	instead 	filed 	a different 	unfair 	practice 	charge 	identified
as Case No. 	LA-CE-1987. 	In the 	interest of efficiency, 	the
current 	case 	was 	taken off 	calendar.
Ultimately, 	the current case 	was 	consolidated 	with Case
No. 	LA-CE-1987 and Case No. 	LA-D-143 	(R-746) 	for the purpose of
formal 	hearing 	and 	decision. 	A pre-hearing 	conference 	was
w	3

scheduled 	and 	held 	via 	telephone 	conference 	call 	on 	July 	9,
1984, 	and a formal hearing was conducted on July 17, 	18, 	and
19, 	1984, 	in Bakersfield, 	California. 	During the course of the
formal hearing, 	based 	upon the 	evidence presented, 	the
Complaint 	in Case No. 	LA-CE-1895 was 	amended 	by 	the undersigned
and 	served 	upon 	the 	parties 	who 	were given 	an 	opportunity 	to
respond 	to 	the 	allegations 	contained 	therein.
At 	the 	close 	of 	the 	formal 	hearing 	it was 	agreed 	that 	the
parties 	would 	file 	simultaneous 	briefs 	which were 	timely 	filed
and 	received on September 	7 and September 	11, 	1984.
Thereafter, 	at 	the direction of 	the 	undersigned, 	each party was
given 	an 	opportunity 	to 	respond 	to 	the 	issues 	and 	arguments
raised 	in the 	brief of 	its 	adversary. 	Reply briefs were 	timely
filed on October 	1, 	1984, 	at which time the case was 	submitted
for 	proposed 	decision.
LA-CE-1987
On May 	14, 	1984, 	CSEA filed an unfair practice charge
against 	the Office 	alleging violations of 	sections 	3543.5(a),
3543.5(b), and 3543.5(d). 	As background information, 	the
charge alleged that on or 	about November 	29, 	1983, 	an
organization 	entitled 	Superintendent 	of 	Schools 	Classified
Association 	(hereinafter 	SOSCA) 	filed 	a petition with 	the 	PERB
seeking 	to decertify 	CSEA.2 Thereafter, 	on 	or 	about March 	7,
2 The 	2 The decertification petition began circulating on or
about November 	29, 	1983, 	but was not filed with 	the 	PERB until
December 30, 	1983.
4

1984, 	the 	Superintendent conducted 	a meeting 	for 	all 	employees
at which 	time 	he 	spoke 	against 	CSEA and 	urged 	employees 	to 	vote
for 	SOSCA. 	An 	investigation was conducted 	in conjunction with
the 	investigation of 	Case 	No. 	LA-D-143 	involving 	objections 	to
the election, 	and on May 30, 	1984, 	a Complaint issued.
On June 	21, 	1984, 	the Respondent filed 	its Answer 	variously
admitting 	and 	denying 	the 	allegations 	set 	forth 	in 	the
Complaint. 	In 	its Answer, 	the Respondent specifically alleged
that 	the 	Superintendent was 	exercising 	his 	right 	of 	free
speech, 	but 	in any event, 	at no time did he 	show preference 	for
one organization over 	another. 	Moreover, 	the Respondent
alleged 	that 	the 	Superintendent 	had 	made 	his 	speech 	long 	before
the 	decertification 	election 	and 	that 	CSEA had 	ample 	time 	to
refute 	any 	alleged misstatements 	of 	fact made 	by 	the
Superintendent.
On or 	about June 	28, 	1984, 	CSEA filed a proposed 	amendment
to 	its 	unfair 	practice charge 	alleging 	that 	the 	Superintendent
made 	not 	one 	but 	three 	speeches 	to 	employees 	at 	which 	time he
showed preference 	for 	SOSCA. 	The proposed 	amendment 	further
alleged 	that Bob Meadows 	and 	Kathy Freeman, 	both 	SOSCA
activists 	and 	organizers, 	were 	supervisory employees within the
meaning 	of 	the 	EERA. 	At 	the 	pre-hearing 	conference conducted
on July 	9, 	1984, 	the Charging 	Party was advised 	that 	its
proposed 	amendment was deficient 	in 	several 	respects 	and,
thereafter, 	the 	Charging 	Party 	filed 	a proposed 	second
5
s

amendment 	wherein 	it 	alleged 	additional 	facts 	amplifying 	the
allegations set forth on June 28. 	On July 11, 	1984, 	the
proposed 	amendment 	was 	accepted 	and 	incorporated 	by 	reference
into 	the Complaint.
In conjunction with Case No. 	LA-CE-1895, 	the hearing was
conducted on July 17, 	18, 	and 19, 	1984, 	and the case was
ultimately 	submitted 	for 	proposed 	decision on October 	1, 	1984.
Case No. 	LA-D-143 	(R-746)
The 	decertification 	election 	in 	which 	SOSCA 	received 	a
majority of votes was conducted on March 	28, 	1984. 	Thereafter,
on April 	6, 	1984, 	CSEA filed objections 	to the results of 	the
election 	alleging 	that 	the 	employer's conduct prior 	to 	the
election 	interfered with 	the 	employees' 	rights 	to 	freely choose
a 	representative. 	The only conduct complained 	of 	was 	the
Superintendent's speech to employees on March 7, 	1984. 	In
conjunction with Unfair 	Practice Charge No. 	LA-CE-1987, 	an
investigation 	was 	conducted 	and 	the 	Board 	agent 	determined 	that
a hearing 	should 	be 	held on 	the merits of 	the objections. 	The
case was heard on July 16, 	17, 	and 18, 	1984 	in Bakersfield,
California and 	on October 	1, 	1984 	it was 	submitted 	for 	proposed
decision.
II. 	FINDINGS OF FACT
The California School Employees Association 	(CSEA) 	is 	an
employee 	organization 	and 	the 	Office 	of 	Kern County
Superintendent 	of 	Schools 	is 	an employer 	as 	those 	terms 	are
defined 	in 	the 	EERA. 	The 	Office 	of 	Kern County Superintendent
6

V
of Schools employs approximately 	650 	individuals, 	340 	of whom
serve 	in classified positions. 	The 	administrative offices of
the 	Respondent 	are primarily 	located 	at 	5801 	Sundale Avenue 	in
Bakersfield 	in 	what 	are commonly 	referred 	to 	as 	Building 	A 	(the
Main Building) 	and Building B. 	There 	are 	approximately 	200
work 	stations 	in Building 	A, 	more 	than one-half 	of which 	are
staffed 	by classified 	employees 	in clerical 	positions.
Building 	B 	is 	a 	smaller 	facility containing 	three 	or 	four
departments 	including 	special 	education, 	legal 	services 	and
migrant 	education. 	Approximately 	five miles 	from Buildings 	A
and B 	is 	the 	School 	Service Center 	which 	is composed 	of 	three
parts: 	the Warehouse, 	the Transportation Building, 	and the
Maintenance 	Building. 	Approximately 	one-half mile 	from 	the
School 	Service Center 	is 	the Blair 	Learning Center, 	wherein
some office employees, 	cafeteria employees, 	and 	instructional
aides are employed. 	In general, 	the Respondent's jurisdiction
covers a 	large geographic 	area, 	and on occasion, 	classroom
facilities 	have 	been 	separated 	by as much as 	120 miles.
Written communications 	such 	as 	interoffice mail, 	staff mail 	and
United States Mail are delivered, 	usually on a daily basis, 	to
the 	various 	work 	stations 	of 	the Respondent.
On September 	13, 	1976, 	CSEA was voluntarily recognized by
the 	Respondent 	as 	the exclusive 	representative of 	a 	unit
comprised of classified 	employees of 	the Office. 	As 	of 	the
7
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date of 	these 	unfair practice proceedings, 	no collective
bargaining 	agreement 	had 	been 	executed 	by 	the 	parties. 
3
3
Prior 	to 	the events outlined 	in 	this proceeding, 	CSEA had 	never
sought 	to negotiate 	such 	an 	agreement.
The 	record 	reflects 	that 	SOSCA 	is 	an employee 	organization
as 	that 	term 	is defined 	in 	the 	EERA and 	that 	SOSCA was 	formed
on or about November 	29, 	1983. 	On December 	30, 	1983, 	SOSCA
filed 	a 	decertification petition 	with 	the 	PERB 	and 	on
January 	23, 	1984, 	a Regional Representative determined that the
decertification petition was 	timely 	filed 	and 	the proof 	of
support 	was 	sufficient pursuant 	to 	the 	requirements 	of 	section
32770(b)(2) 	of 	the California Administrative Code, 	title 	8,
part 	III. 	SOSCA, 	CSEA, 	and the Office 	entered 	into 	a consent
election 	agreement 	and 	a 	predominately 	on-site 	decertification
election was conducted on March 	28, 	1984. 	The 	tally of ballots
from 	that 	election 	reflects 	that 	there 	were 	336 	eligible 	voters
in the representation unit: 	161 voted 	for 	SOSCA, 	96 voted for
CSEA, 	10 	cast votes 	for 	no 	representation, 	and there were eight
(8) 	challenged ballots.
LA-CE-1895
Origination 	of 	Letter 	of 	Concern
Sometime during 	the 	fall of 	1983, 	the 	leadership and
membership of 	CSEA Chapter 	No. 	512 voted 	to draft 	a proposed
collective 	bargaining 	agreement 	and 	determined 	that 	the
3By 	stipulation 	of 	the parties.
oC	
8

agreement would 	be 	presented 	at 	a CSEA meeting 	to 	be 	conducted
on November 	17, 	1983. 	All classified employees, 	whether or not
members 	of CSEA, 	were urged 	to 	attend 	that meeting.
Tina 	Pesante 	is 	a classified 	employee of 	the Office of 	Kern
County 	Superintendent 	of 	Schools 	and 	serves 	in 	the 	position 	of
Account 	Clerk 	II; 	she has 	been employed 	by 	the Respondent 	for
13 years. 	According 	to her 	testimony, 	from her perspective,
CSEA never 	had 	a 	strong position 	in 	the 	Office 	and 	had 	never
really made 	a contribution vis 	a vis 	the 	benefits 	afforded
Office 	employees. 	Pesante was definitely opposed 	to CSEA's
attempt 	to 	negotiate 	a collective 	bargaining contract 	with 	the
Office.
Along with 	several colleagues, 	she determined 	that 	a 	letter
should 	be written 	to CSEA expressing 	her 	sentiments 	and 	the
letter 	should 	be 	circulated 	to determine 	if 	others 	shared 	her
views. 	Basically, 	she discussed 	the matter 	with 	friends during
her coffee breaks. 	Thereafter, 	on or about November 	16, 	1983,
she and Mary Simms, 	an Account Clerk 	III, 	sat down and composed
a 	letter.
Simms 	typed 	up the 	letter, 	referred 	to 	in these proceedings
as 	"the letter of concern" which, 	despite 	its length, 	is set
forth 	in 	its entirety, 	because of 	its message:
Employees 	of 	the 	Kern County Superintendent
of Schools Office receive benefits equal, 	if
not 	superior 	to, 	any other 	public 	agency 	in
the State. 	These benefits 	are paid by 	the
9
9

Kern 	County 	Superintendent 	of 	Schools 	Office
with 	no contributions 	from employees.
Unlike most school districts, 	we have 	not
been placed 	in 	a position 	of 	negotiating
increased 	costs 	for 	the 	benefits we 	receive.
We 	have 	always 	had 	a 	very close 	working
relationship with Dr. 	Richardson and
Dr. 	Blanton 	in 	regard 	to employee/employer
matters.
During 	the 	recent 	money 	shortage 	situation,
not 	one 	classified 	employee was 	laid 	off 	or
fired. 	This 	is contrary to the common
practice of 	school districts. 	Classified
employees 	are more 	easily 	and 	quickly
dismissed 	than certificated 	employees. 	In
the 	recent 	reduction of positions 	in 	the
office due to financial difficulties, 	no
more 	classified 	positions 	were 	reduced 	than
certificated 	positions.
CSEA, 	Chapter 	512 	is asking 	that 	its members
draft 	a collective 	bargaining 	agreement
proposal 	to 	be presented 	to 	the
administration. 	Since 	the 	law and 	the merit
system provide 	specific 	and 	detailed
guidelines on employee rights, 	it 	is assumed
that 	a collective 	bargaining 	agreement
proposal 	would 	cover 	potential 	salary
increases 	and fringe 	benefits.
While 	the merit 	system 	is 	sometimes 	hard 	to
understand 	and 	sometimes 	hard 	to 	implement,
it does provide more protection 	for
employees 	than 	any 	other 	negotiated 	contract
in 	the 	schools 	system.
Since 	our 	office currently possesses one 	of
the 	best 	fringe 	benefit programs 	for
employees, 	would 	it not be 	extremely harmful
to re-negotiate 	these benefits. 	By
re-negotiating 	a 	"good 	thing", 	employees
could 	find 	themselves 	faced 	with 	the
possibility of paying 	all 	or 	a part 	of
increased 	premium costs.
CSEA 	has 	never 	contributed 	a 	thing 	toward
building 	the 	tremendous 	job 	security we
presently 	have, 	toward building 	the
10

competitive 	salary 	schedule 	we 	presently
have, 	nor 	the tremendous 	fringe 	benefits we
presently 	have.
There 	is an old 	saying: 	"If 	it 	is not
broken, 	don't fix 	it." 	The only possible
thing 	that 	classified 	employees 	could gain
from changing 	our 	present 	policies 	of
representation 	for 	employees 	is
confrontation, 	conflict, 	controversy and
divisiveness 	with 	the possibility 	that 	we
could become 	the big 	loosers 	[sic] 	in the
end.
It 	is not 	right that a few 	(40) 	employees
should 	take 	it 	upon 	themselves 	to change
what 	is 	so 	important 	to 	so many with 	less
than 	three 	days 	notice 	and without giving
the 	other 	approximately 	300 	classified
employees 	a chance 	to 	express 	their 	views.
Simms 	brought 	the 	letter 	to 	work with her 	the 	next day,
distributed one of 	several copies 	to 	Pesante 	and, 	apparently
due 	to a 	fairly effective communication or 	"gossip" 	network,
various members 	of 	the bargaining 	unit 	knew of 	the 	letter's
existence 	and 	either 	picked 	up copies 	from Pesante or 	Simms,
or, 	although the record 	is not entirely clear, 	perhaps received
a copy 	through 	interoffice mail. 	At 	the 	end of 	the day, 	copies
were 	returned 	to 	either 	Pesante 	or 	Simms who 	took 	them to 	the
CSEA meeting 	that 	evening.
Alan Hall 	and 	Distribution of 	the 	Letter
Alan Hall 	is 	employed 	by 	the Respondent 	as 	the 	Supervisor
of Maintenance 	and Operations. 	He 	has 	been 	in 	that position
since June 16, 	1980, 	and supervises between 20 to 22
employees. 	There 	is an employee 	lounge 	in the Maintenance 	and
11

Operations 	Building 	and 	ordinarily, 	each morning 	before
beginning work, 	Hall 	and 	the 	employees 	he 	supervises meet 	and
discuss work orders; 	some employees 	also congregate 	in the
lounge 	during 	lunch 	and 	break 	time 	and 	frequently 	they 	again
meet 	in 	the evening.
On and before the morning of November 	17, 	1983, 	the
employees discussed 	the 	fact 	that 	a 	letter 	would 	be 	arriving
concerning 	the 	quality 	of 	CSEA's 	representation 	and 	its
proposed 	collective 	bargaining 	agreement. 	Although 	the
testimony 	is not entirely clear, 	it 	is 	found that on previous
occasions, 	Alan Hall did participate 	in discussions 	regarding
CSEA as 	the 	exclusive 	representative 	of 	the classified
employees. 	In at least one of those meetings, 	Hall expressed
his opinion that 	there should be 	"an alternative" 	to CSEA.4
According 	to 	the 	testimony of Duane Haskins, 	on 	the morning
of November 	17, 	1983, 	Mr. 	Hall and other employees were engaged
in a discussion 	regarding 	the 	letter 	that would 	be 	coming 	about
CSEA. 	Haskins 	indicated 	that when 	it arrived, 	he would
appreciate 	it 	if 	Hall would 	bring 	it out 	to his work 	location
at 	the Blair 	Learning 	Center. 	Hall 	agreed. 	Hall 	testified
4Hall 	testified 	that 	he 	liked 	to 	consider 	himself 	one 	of
the 	"boys" 	and 	it 	is 	found 	that 	camaraderie 	with his
subordinates was 	something he valued highly. 	Accordingly, 	it
is 	not 	surprising 	that, 	notwithstanding 	his 	supervisory 	status,
prior 	to 	the 	filing 	of 	the 	instant case, 	he 	freely engaged 	in
conversations 	touching 	upon 	subjects 	of concern 	to 	rank 	and
file members 	of 	the 	bargaining 	unit.
12

that 	he 	was 	not certain when or 	how the 	letter 	of 	concern
arrived, 	although 	he 	recalled 	seeing 	it 	on a table 	in the
lounge.
When 	first 	examined, 	Hall 	indicated 	that he did 	not 	read
the 	letter. 	Sometime thereafter, 	however, 	he admitted that he
did 	read 	the 	letter, 	and when a copy of 	the 	letter 	was produced
pursuant 	to a 	subpoena duces 	tecum, 	it was 	revealed 	that Alan
Hall's 	signature was 	the 	first 	signature 	following 	the 	text 	of
the letter. 	Other employees, 	such as John Rowe, 	Gregory
Fullmer, 	and Wayne Roberts, 	had also signed the document.
Fullmer 	and 	Rowe 	were called 	as witnesses 	for 	the 	Charging
Party. 	As with other witnesses, 	they were unable 	to be precise
as 	to 	when 	and 	under 	what 	circumstances 	they had 	signed 	the
letter 	of 	concern 	and 	when 	and 	under 	what 	circumstances 	they
had 	signed 	the 	subsequently 	circulated 	decertification
petition. 	Rowe 	did 	testify 	that with one 	document, 	Alan Hall
brought 	it 	into 	the 	room and 	said words to the effect, 	"here 	it
5
is, 	read 	it and 	sign 	it 	if you want." 	Fullmer did 	not
recall 	if 	Hall was present when he 	signed 	the 	letter 	of 	concern
5Rowe 	thought 	that 	the document 	carried 	in 	by Hall was
the decertification petition. 	It is found, 	however, 	that the
document was 	the 	letter 	of concern. 	Rowe 	said 	that 	after 	the
document he 	signed 	left 	the maintenance division, 	it was 	taken
over 	to 	the warehouse. 	The 	signatures 	following 	those of 	the
maintenance 	workers 	on the 	letter 	of 	concern 	are 	indeed 	those
of warehouse workers. 	Whereas, 	the decertification petition
which Rowe 	signed 	does 	not 	contain 	signatures 	of 	any 	warehouse
workers 	whose 	signatures 	appear 	on a different 	petition
entirely.
13

and he 	was 	not questioned 	as 	to whether 	Hall might have 	brought
it 	into the room; 	he 	just recalls 	it being 	there.
Apparently, 	sometime 	after 	those 	employees 	signed 	the
document, 	Hall, 	during working hours, 	drove out to the Blair
Learning 	Center. 	He 	and 	Haskins 	both 	testified 	that 	he 	needed
to check 	on a 	sprinkler 	valve problem. 	In accordance with
Duane 	Haskins 1 request 	that 	he 	be given an opportunity 	to
review the 	letter 	of concern, 	Hall gave 	the document 	to Haskins
and 	asked 	him 	if 	he 	wanted 	to 	read 	it 	and 	if 	he 	wanted 	to 	sign
it. 	After 	reading 	the document, 	Haskins did 	in fact 	sign 	it.
Haskins, 	upon questioning by the undersigned, 	specifically
testified 	that 	he was 	not on 	a break when he 	received 	and
signed 	the 	document.
During 	Hall's visit 	to 	the Blair 	Learning Center, 	two other
employees, 	Allen Garbett and Robert Salazar, 	were also
present. 	When Hall came up to 	speak with Haskins, 	Garbett and
Salazar 	also 	approached. 	Hall 	inquired 	as 	to whether 	or 	not
they 	wanted 	to 	read 	the 	letter 	and 	when 	they 	responded 	that
they were 	CSEA members 	and 	were 	not 	interested, 	they were 	told
to 	return 	to 	work 	and 	asked 	if 	they didn't 	have 	something 	to
do.6
6Hall 	testified 	that 	he 	asked 	Garbett 	and 	Salazar 	if 	they
didn't have 	something 	to 	do 	before 	they were 	asked 	if 	they
wanted 	to 	read 	the 	letter. 	Haskins' 	testimony only 	references
the 	inquiry 	as 	to whether 	the 	employees wanted 	to 	read 	the
letter. 	Although 	it might 	be 	argued 	that 	Hall's 	testimony 	is
uncontroverted, 	it 	is 	inherently difficult to accept his
14

Based 	upon 	the 	testimony of 	John Rowe 	and 	the 	placement 	of
signatures on the 	letter 	of concern, 	it appears 	that after 	the
document circulated 	in the maintenance division, 	it was 	taken
over 	to the warehouse. 	Kathaleen 	(Kathy) 	Freeman 	testified
that 	she 	received 	the document 	in 	interoffice mail, 	signed 	it,
and passed 	it on 	to 	a woman who works 	in close proximity,
Jenna Davis. 	In 	light of 	the 	testimony proffered 	by 	the
authors of 	the document, 	it only circulated 	for 	one day.
Accordingly, 	Freeman's testimony that 	she 	received 	it 	in
interoffice mail 	from Tina 	Pesante, 	which 	is delivered only
7	once daily, 	is 	somewhat discounted. 	There 	is no evidence,
however, 	that Alan Hall was either 	directly or 	indirectly
involved 	in 	the movement 	of 	the 	letter 	of concern 	from the
maintenance division over 	to 	the 	warehouse.
Nevertheless, 	it 	is 	found that Alan Hall 	knew that the
letter 	of concern was at 	the warehouse. 	Mark Underwood, 	who
(6 	Cont'd)testimony 	that 	he 	ordered 	them back 	to 	work 	and
then asked 	them 	if 	they wanted 	to 	read 	the 	letter. 	In any
event, 	a credibility determination 	is 	not 	essential 	since Hall
admitted 	that even 	though 	they were on work 	time, 	if 	they
wanted 	to 	read 	and/or 	sign 	the 	letter, 	he 	would 	have 	given 	them
the opportunity to do 	so.
7Generally, 	Freeman's 	testimony 	regarding 	the 	letter 	of
concern 	is discredited. 	In addition 	to 	stating 	she 	received 	it
in 	interoffice mail, 	she 	testified 	that Davis and Laddaga
signed 	it 	after 	she 	did 	and 	there were only 	three 	signatures on
the 	document when 	she personally 	returned 	it 	to Building 	A at
the end of 	the workday. 	The 	record 	reflects, 	however, 	that
Davis 	did 	not 	sign 	the document 	signed 	by 	Freeman 	and 	that
there 	were probably 	at 	least 	ten 	signatures 	on 	the document
when Freeman 	turned 	it 	in.
15

worked 	under 	Hall's 	supervision 	for 	three 	and 	one-half 	years,
testified 	that 	while 	he 	was doing 	some 	work 	on 	the 	north 	side
of 	the warehouse, 	getting 	ready 	to 	take his break, 	Alan Hall
told 	Underwood 	and 	Joe 	Riehl8 to 	stop 	by 	Kathy 	Freeman's
office 	because 	"she 	had 	something 	up 	there 	that 	she 	wanted 	[us]
to 	look at."
Underwood 	signed 	the 	document 	and 	noticed 	others 	who 	had
signed 	before 	him, 	but 	he 	testified 	that 	he 	really did 	not 	read
the 	letter 	of concern. 	Underwood described 	himself 	as 	the 	only
CSEA 	supporter 	in 	the 	maintenance 	unit 	and 	he did 	not want 	to
be 	the odd-man-out with either Alan Hall, 	with whom he did 	not
have 	a good 	relationship, 	or 	his other co-workers.
The 	only 	other 	testimony 	which 	touched 	upon 	Alan 	Hall's
involvement 	in 	the 	circulation or 	promotion of 	the 	letter 	of
concern was offered by Joyce Bussell. 	Bussell, 	whose
immediate supervisor 	is 	Alan 	Hall, 	works 	in Building 	A, 	not 	in
an office 	in 	the maintenance 	facility. 	Bussell 	testified 	that
sometime 	in 	January 	she 	was called 	into 	the 	office 	of 	the
Director 	of Research and Development, 	Dr. 	Jack Stanton.
Bussell 	testified 	that 	Hall was present 	and 	that 	Stanton 	handed
her 	a document 	and asked her 	to 	read 	it. 	She 	said 	she would
not 	sign 	something 	like 	that 	without 	talking 	to 	CSEA and,
8This 	name 	incorrectly 	appears 	as 	Rieho 	in 	the 	transcript.
16

according 	to her 	testimony, 	by her 	tone 	it was clear 	that 	she
did 	not 	wish 	to 	discuss 	the 	matter 	further.
When called 	to 	testify, 	Stanton 	himself 	stated 	he 	did 	not
recall any 	such 	incident 	taking place, 	although 	the phrase 	"if
it 	is not broken, 	don't fix 	it," 	from the 	letter 	of concern
looked familiar. 	The testimony of Bussell, 	however, 	is
credited. 	She 	could 	not 	identify with 	precision 	the 	document
given to her 	by Stantion. 	However, 	she testified 	that the
document 	did 	not 	contain 	the 	word 	"decertified" 	and 	that 	she
simply 	reached 	the 	conclusion 	that 	that was 	the 	intention 	of
the 	authors of 	the document. 	That description 	is more
consistent with 	the 	letter 	of concern. 	Moreover, 	Bussell
testified 	that 	Stanton had 	approached 	her, 	after 	she 	was
subpoenaed 	to 	testify 	at 	the 	unfair 	practice 	hearing, 	and had
told 	her 	that 	the document 	she 	had 	been 	shown was 	a 	letter 	of
concern 	and 	not 	a petition.
Case No. 	LA-CE-1987 and Case No. 	LA-D-143
Events 	Following 	Circulation of 	the 	Letter 	of 	Concern
By the 	end of 	the day on November 	17, 	1983, 	numerous copies
of the letter 	of concern, 	with signatures, 	were returned to
either Mary Simms or Tina Pesante. 	Simms, 	Pesante, 	and other
interested 	individuals 	attended 	the 	CSEA meeting 	scheduled 	for
that 	evening. 	The 	authors 	and 	supporters 	of 	the 	letter 	of
concern 	attempted 	to present copies 	of 	the 	letter 	and
17

signatures 	to CSEA, 	but 	the 	leadership refused 	to accept their
presentation.
Thereafter, 	the 	authors of 	the 	letter 	of concern wanted 	to
talk 	about 	the 	substance 	of 	CSEA's contract proposal. 	Tina
Pesante 	testified 	that Jeffrey 	Heinz, 	a CSEA field
representative, 	first 	spoke 	in generalities but 	then began
reading 	the 	specific provisions of 	the contract. 	For 	reasons
which were 	not 	set 	forth, 	Pesante and her colleagues 	left the
CSEA meeting 	early. 	The 	following day, 	however, 	they 	received
and 	reviewed a copy of the contract proposal, 	and, 	in Pesante's
opinion, 	Heinz 	had 	left out 	relevant 	specifics contained 	in the
contract.
Pesante 	testified 	that 	she 	was 	dissatisfied 	with 	the 	way
she 	and 	her 	associates 	had 	been 	treated 	at 	the 	CSEA meeting.
Her 	sentiments were 	echoed 	by other 	witnesses. 	Accordingly,
their 	initial 	reaction was 	to 	launch 	a campaign 	to get 	rid of
CSEA. 	Sometime 	thereafter, 	she 	and her 	colleagues 	re-evaluated
the 	situation 	and 	decided 	that 	CSEA 	should 	be 	replaced 	by
something. 	Accordingly, 	the Superintendent of 	Schools
Classified Association, 	or SOSCA, 	was formed. 	In summary, 	the
employees 	disenchanted with CSEA 	attended 	a CSEA meeting 	on
November 17, 	1983. 	On November 18, 	1983, 	they spoke to
representatives 	from 	PERB 	about 	decertifying 	CSEA and 	sometime
thereafter, 	during 	the next week, 	SOSCA was formed.
18

Although no 	witness could 	be 	precise 	about 	the 	timing 	of
the 	events described 	above, 	the 	testimony 	is uncontroverted
that 	a meeting 	was 	held 	at 	the 	house 	of 	Kathy Freeman 	to
discuss 	employee 	opposition 	to 	CSEA and 	a meeting 	was 	conducted
with Mary Simms, 	Tina 	Pesante, 	and Bob Meadows 	at 	Patriot's
Park 	to discuss 	the decertification petition. 	After 	those
various meetings, Mary Simms, 	Tina Pesante, 	and Diane Steward,
composed 	the 	decertification 	petition 	and 	circulated 	it
throughout the District. 	Several weeks thereafter, 	a
decertification petition 	was circulated 	with 	a cover 	letter
which bore 	the 	signature of Bob Meadows, 	Mary Simms, 	Tina
Pesante, 	and others. 	The cover 	letter, 	apparently sent to all
employees, 	set 	forth the 	tenor 	of 	the decertification
campaign. 	The 	basic 	arguments 	set 	forth 	in the cover 	letter
may 	be 	summarized 	as 	follows:
1. 	Of 	the 	approximately 	300 	eligible 	employees of 	the
Office, 	only 	40 	are 	CSEA members 	and only a two-thirds majority
of 	those members 	is 	required 	to determine 	the 	fate 	of 	Office
employees;
2. 	In 	the past, 	the Superintendent has provided benefits
to Office employees 	at no cost. 	If 	the 	benefits 	are 	to be
negotiated, 	it will 	result 	in 	increased costs 	to 	employees;
3. 	Office employees have fringe benefits 	"equal, 	if not
superior 	to, 	any other public 	agency 	in the 	state." 	If CSEA
19

can be 	prevented 	from negotiating 	a contract, 	the 	employees
would continue 	to 	receive 	(a) 	medical coverage 	for 	employee 	and
family members; 	(b) 	dental coverage 	for 	employee 	and 	family
members; 	(c) 	vision coverage for employee and family members;
(d) 	$50.00 	life 	insurance policy for 	each employee; 	and 	(5) 	two
non-discretionary personal 	necessity 	days 	per 	year 	for 	each
employee;
4. 	The Office has not 	laid off 	any employees as was 	the
practice 	in other 	school districts;
5. 	The merit 	system provides 	adequate protection 	and 	the
employees do 	not 	need 	a 	negotiated contract;
6. 	SOSCA would 	represent all employees 	in 	the Office; 	and
7. 	CSEA charges 	$11.00-$14.00 	per 	month 	and 	only 	$.50
remains 	at 	the 	local 	level.
The 	items 	listed 	above 	continued 	to 	be 	issues 	throughout
the 	decertification 	campaign, 	although 	SOSCA did 	expand 	upon
its 	position 	and 	indicated 	that 	if 	SOSCA became 	the 	exclusive
representative of 	"all" 	employees, 	the expense to each employee
would 	be 	$5.00 	per 	year 	and 	would 	be 	collected 	"for 	local
expenses 	only." 	Moreover, 	SOSCA indicated 	that 	the
Superintendent 	had 	been 	open 	and 	fair 	with 	his 	employees 	and
that 	it was 	important 	to 	keep communication 	lines open.
In 	its campaign 	literature, 	CSEA questioned 	the experience
of 	the 	SOSCA 	leadership 	and 	highlighted 	the 	fine 	benefits 	which
employees were 	able 	to 	receive 	if 	they were members 	of CSEA.
20

Those 	benefits 	included, 	but were not 	limited 	to, 	an accidental
death 	insurance policy, 	on the 	job 	liability coverage 	for 	every
member, 	voluntary 	insurance programs at group rates, 	criminal
attorney 	reimbursement, 	and 	off-the-job 	legal 	advice 	and
referrals. 	CSEA also highlighted 	the 	"fact" 	that CSEA had 	been
responsible for 	the 	legislation 	set 	forth 	in 	the 	Education
Code 	which directly governs 	and 	protects 	classified 	employees.
Moreover, 	CSEA emphasized 	that 	it 	had 	the 	experience 	and 	the
legal 	expertise 	to 	fully 	and 	adequately 	represent members 	in
the 	bargaining 	unit, 	whereas 	SOSCA lacked that 	expertise 	or
experience.
In 	the midst of 	the 	election campaign, 	SOSCA notified 	all
classified 	employees 	that 	a meeting 	would 	be 	held 	on
February 	7, 	1984 	at 	5:15 	in Respondent's 	board 	room for 	the
purpose 	of 	discussing 	the progress 	of 	the decertification
process 	and 	also 	in order 	to discuss 	by-laws of 	SOSCA and 	the
election 	of 	representatives 	from a 	number 	of 	employee
groupings. 	Participation 	from all groups of 	employees was
encouraged.
The 	SOSCA meeting 	was convened 	as 	scheduled. 	It 	was
attended 	by Joe Vargas, 	a 	regional 	representative 	from CSEA.
As 	the meeting was about 	to begin, 	Vargas was asked 	to 	leave
and did 	so. 	A new CSEA field 	representative, 	however, 	Joel
Baldwin, 	stayed 	and 	represented 	that 	he was 	an employee of 	the
District. 	According 	to a 	letter 	from Vargas dated February 10,
21

1983,9 and testimony of witnesses at the meeting, 	as 	a 	result
of Baldwin's presence 	and his comments, 	the meeting 	was 	totally
disrupted. 	Baldwin 	apparently 	failed 	to 	disengage 	from debate
even when asked 	to do 	so 	by local 	leadership of CSEA. 	In his
letter, 	Vargas 	indicated 	that 	the 	local CSEA chapter 	was 	in
control 	and would 	not 	tolerate 	such 	behavior 	in 	the 	future.
The 	incident 	involving 	Joel Baldwin 	bothered 	some 	managers
and 	some 	rank and 	file employees. 	For example, 	after 	the
February 	7 SOSCA meeting, 	Mary Simms, 	an organizer 	and officer
of SOSCA, 	met with Kelly Blanton, 	Associate Superintendent, 	and
complained of Baldwin's conduct. 	Simms, 	however, 	could recall
no 	specific 	reactions made 	by Blanton 	to her 	complaints. 	The
Superintendent was 	also 	"concerned" 	about 	the February 	7 	SOSCA
meeting 	which 	had 	been 	brought 	to 	his 	attention 	via 	the
Office's 	unofficial 	communications 	network 	or 	grapevine.
In a 	letter 	to 	Fran Kreiling, 	then Regional Director 	of 	the
Los Angeles 	Regional Office of 	the 	PERB, 	the 	Superintendent
indicated 	that 	he 	had 	received 	reports 	from a 	number 	of
classified 	employees 	which 	had 	been 	verified 	by 	his 	own
investigation. 	He 	indicated 	that he was outraged by Mr.
Baldwin's 	false 	representations 	and 	that 	he 	would 	"not 	tolerate
any person 	attempting 	for 	any 	reason 	to 	impersonate 	a member 	of
my 	staff." 	The 	Superintendent 	further 	indicated 	as 	follows:
9The 	letter 	from Vargas was written 	to members 	of 	CSEA
and 	classified 	employees.
22

It 	is obvious to me that Mr. 	Baldwin's
conduct 	was 	directly 	related 	to 	the pending
decertification process 	and must 	be
attributed 	to 	the 	statewide 	union which
employs 	him.
Moreover, 	the 	Superintendent 	requested 	advice 	from 	the 	Regional
Director 	as 	to what action, 	if any, 	his office could 	take with
respect to Mr. 	Baldwin's conduct. 	In other words, 	the
Superintendent 	inquired 	whether 	or 	not 	the 	action was 	protected
under 	the 	EERA and 	whether 	or 	not 	an unfair 	labor 	practice
charge could 	be 	filed 	against Mr. 	Baldwin and his 	employer,
CSEA. 	Copies 	of 	the Superintendent's 	letter 	were 	sent 	to
representatives of 	CSEA and 	SOSCA.
The 	Superintendent's 	Speeches
On March 7, 	1984, 	the Superintendent spoke 	to a group of
assembled 	employees 	at 	8:15 	a.m. 	in 	the Office's 	board 	room.
He 	again 	spoke 	to 	an 	assembled group of 	employees 	on 	that day
at 	10:25 a.m. 	at 	the Blair 	Learning Center. 	A similar 	speech
was made 	to a different group of employees on March 	8, 	1984,
again 	in 	the Office's 	board 	room. 	All employees were 	required
to attend one of the three meetings. 	In his testimony, 	the
Superintendent was 	uncertain 	as 	to what 	type 	of 	transportation
had 	been provided 	for 	those 	employees 	working 	in outlying 	areas.
According 	to 	the 	Superintendent, 	he 	had an outline of 	his
speech 	at 	each presentation 	and 	he 	gave 	approximately 	the 	same
speech 	three different 	times. 	Each 	speech was 	followed 	by 	a
question 	and 	answer 	session 	at 	which 	time 	the 	Superintendent's
23

legal counsel, 	Frank J. 	Fekete, 	and other management personnel
were 	available 	to 	respond 	to 	inquiries 	from the 	employees. 	The
purpose of 	the meeting was 	to discuss 	the question of
"classified 	employee 	union 	representation 	for 	bargaining
purposes." 	In each speech, 	the Superintendent attempted to
give 	the 	attendees 	an overview or 	a historical perspective.
In that 	segment of his 	speech, 	the Superintendent
summarized 	that 	the 	Rodda 	Act 	had 	been passed 	in 	1976 	and 	that
thereafter 	the 	District 	had 	recognized 	CSEA as 	the 	exclusive
bargaining 	representative 	for 	classified 	employees 	and 	CTA as
the 	exclusive 	representative 	for 	certificated 	employees. 	From
1976 	until 	the 	time of his 	speech, 	the Superintendent 	indicated
that 	his 	office 	had 	an 	informal 	negotiating 	relationship 	with
each 	of 	the 	two 	employee 	organizations 	representing 	the
Respondent's employees. 	Two or 	three times a year, 	the
representatives 	of 	the 	respective groups would meet 	with
management 	and 	salary 	adjustments 	and 	benefits 	would 	be 	worked
out 	on an 	informal 	basis.
The 	Superintendent 	then 	recounted 	that 	CSEA 	indicated 	that
it was going 	to 	seek 	a formal contract and 	that 	in 	response
some 	employees 	had 	expressed 	their 	opposition. 	Nevertheless,
CSEA had pursued 	its desire 	to 	have 	a 	formal contract and 	in
fact 	its 	initial proposal was 	being 	processed 	through 	the
sunshining provisions of 	the Act 	at 	the 	time of 	his 	speech.
24

The 	Superintendent 	then 	noted 	that 	Office 	employees 	who
were 	opposed 	to CSEA's proposal 	had 	formed 	another 	union 	and
indicated 	that 	they did 	not want CSEA to 	represent 	them. 	He
identified 	the 	organization 	as 	SOSCA and 	indicated 	that 	they
had 	been 	successful 	in acquiring 	the 	requisite 	number 	of
signatures 	to call 	for 	a decertification election. 	The
Superintendent 	continued 	his 	speech 	explaining 	what 	the
procedures would 	be 	for 	the election, 	how employees would 	be
transported 	and 	the 	fact 	that 	certain 	employees 	would 	receive
mail ballots.
In each of his 	speeches, 	the Superintendent 	then shifted 	to
a description 	of 	the 	nature 	of 	the 	relationship his 	office 	had
had with employee organizations up to 	then. 	He 	stated:
[U]p to 	now, 	we 	have met 	the 	administration
and 	employee groups on a 	regular 	basis with
both 	CTA 	representatives 	and 	CSEA
representatives 	to discuss 	salary
adjustments 	and employee 	benefits. 	Out of
those meetings, 	over 	the years 	have come 	the
benefits which we 	now enjoy. 	Now
historically, 	we have made salary
adjustments 	and 	have provided 	benefits 	in
the 	same manner 	to all groups of 	employees.
We 	have 	not 	made 	the distinction 	between
certificated or 	classified, 	between
supervisory 	or 	management 	or 	confidential.
We 	have 	offered 	the 	same 	salary 	adjustments,
the 	same fringe 	benefits 	to 	all employees.
We've 	treated 	them all 	equally. 	Our
relationships, 	like this, have been
essentially 	the 	same 	for 	the 	25 years 	that
I've 	been 	working 	for 	the Office 	of 	the 	Kern
County 	Superintendent 	of 	Schools 	. . . . 	And
I 	have 	to 	say 	in all 	those negotiations 	and
meetings and working 	relationships, 	most of
the major 	proposals 	for 	salary 	adjustments,
for 	fringe 	benefits 	have come 	from either
the 	administration 	or 	CTA.
25

Now regardless of 	the election outcome, 	I
will 	continue 	to 	deal 	with CTA and 	with
management 	the 	same as we have 	in the past.
This 	election concerns 	only 	classified
employees 	and 	the 	relationship we 	have 	with
them. 	Now the manner 	in which 	I 	am able 	to
deal with classified 	employees will 	be
determined 	by how you 	vote 	in 	the 	election,
meaning 	classified 	employee's. 	(Emphasis
added.)
The 	Superintendent 	then 	indicated 	that 	he 	was going 	to 	shift
the 	focus 	of 	his 	speech 	and 	stated:
Now up 	to this point, 	I've 	been 	trying 	to
relate 	factual 	things 	to you. 	Beginning 	now
I'm going 	to 	start 	expressing 	some 	of 	my 	own
personal opinions 	as well 	as 	add 	some more
facts. 	I 	am emphasizing my 	right of 	free
speech by the 	law to 	say what 	I 	think,
please 	understand 	that 	I 	am not 	attempting
to 	impose my views on you 	in any way. 	I 	am
sharing with you. 	I have 	no wish to
interfere with your 	right 	to vote 	as you
choose to vote, 	I 	am also responding 	to a
number 	of 	questions 	that have 	been asked me
over 	and over 	the 	last few weeks, 	what do
you think about 	all this. 	One 	thing 	I 	think
is that I will not permit anyone, 	either
group, 	to gain advantage by using 	false or
misleading 	information.
Now, 	no one 	in a supervisory, 	administrative
or 	management position can coerce you 	to
vote 	in any manner. 	I do 	not believe 	that
any 	of 	our 	supervisors 	have 	tried 	to do
this. 	But 	I 	have 	asked 	them specifically 	to
not 	use 	their 	supervisory position 	in any
way 	to 	influence 	anybody 	in a classified
position 	to 	vote 	in 	a 	particular way.10
way .	.. ... .l.
10The 	Superintendent testified that early 	in 1984, 	after
the filing of Case No. 	LA-CE-1895, 	he conducted meetings with
most 	supervisory 	and 	management 	employees 	and 	told 	them 	that
although 	he didn't 	believe Hall 	had done 	anything
inappropriate, 	they should be cautious.
26
• 	•

The 	Superintendent 	then went 	on 	to describe 	the 	three
alternatives 	that would 	appear 	on the 	ballot: 	no
representation; 	CSEA; 	or 	SOSCA. 	With respect to 	"no
representation," 	the Superintendent was quite 	negative. 	He
indicated 	that management 	would 	have 	no 	one 	group with which 	to
deal 	and 	that 	opposing 	groups would continue 	to vie 	for
leadership 	and 	for 	the 	right of 	exclusive 	representation. 	He
stated 	"I 	believe 	that we would 	have continued confusion 	and
dissension, 	some of which we 	are 	experiencing 	right 	now."
On 	the 	other 	hand, 	the 	Superintendent 	indicated 	that 	a 	vote
for 	CSEA would 	retain CSEA as 	the 	exclusive 	representative 	and,
based 	upon what 	he 	had 	seen 	and 	heard, 	CSEA would continue 	to
"push
- " 	for 	a collective 	bargaining 	agreement. 	He 	stated 	that 	a
collective 	bargaining 	agreement 	proposal 	would 	require 	hardline
negotiations 	and would 	result 	in 	the 	loss 	of 	flexibility 	and
the destruction of 	the 	former 	relationship 	that 	his 	office 	had
shared 	with 	the 	classified 	employees. 	"That 	relationship would
be 	replaced 	with 	a 	rigid contract." 	The 	Superintendent 	went 	on
to 	indicate 	that 	local control 	of 	the 	employee 	organization
would 	be 	lost 	and 	local 	leadership would 	be 	replaced 	by CSEA's
state 	leadership. 	In describing what he meant by a loss of
control, 	the Superintendent 	noted 	that he 	had 	talked 	to 	the
Union's 	chapter 	president 	who 	had 	tried 	to 	assure 	him 	that
nothing 	would change 	but 	then 	he 	had gone 	and 	read 	the contract
and he 	noted:
27

I 	can't 	believe 	that 	she 	has 	read 	that
proposal 	thoroughly and 	she 	thinks 	it does
not change 	anything. 	Because 	the contract
calls 	for 	a 	radical 	restructuring 	of 	the
relationship between 	the 	administration 	and
classified employees, 	and 	it calls for 	a
radical change, 	which in my opinion, 	would
be detrimental to both sides.
As 	a second example of the loss of 	local control, 	the
Superintendent 	told 	the 	assembled 	employees 	about 	the 	meeting
which Joel 	Baldwin 	had 	allegedly disrupted. 	The 	Superintendent
quoted certain 	sections 	of Vargas 1 letter 	to 	all classified
employees, 	but 	failed 	to quote or 	relate 	that Vargas had
indicated 	that 	the 	local 	leadership would 	determine 	what 	role,
if any, 	Baldwin played 	in the 	future.
Finally, 	in this 	segment of his speech, 	the Superintendent
described 	his 	understanding 	of 	what 	a 	vote 	for 	SOSCA would
mean. 	He 	stated as 	follows:
[T]his 	is 	all based on what 	I 	have heard 	and
what 	I 	have 	seen and what 	I 	have
experienced. 	A vote 	for 	SOSCA would 	be 	to
retain 	the 	flexibility 	that 	we 	have
enjoy[ed] 	to 	retain the ability 	to 	treat 	all
groups 	the 	same, 	to 	retain local employee
control of 	the bargaining 	unit. 	I 	know all
of 	the 	local 	leaders 	of SOSCA and 	as you
probably 	know them too, 	and you 	know what
their 	values are, 	what their 	ideals are and
they are all 	local, 	they are 	not 	from San
Jose, 	they're not from Fresno, 	they're from
Kern County.
At that point, 	in each of his speeches, 	the Superintendent
added 	some 	brief 	comments 	on 	the 	state 	of 	his 	health 	and 	then
he 	proceeded 	to 	take questions 	from 	those 	in attendance.
28

Although 	the 	questions differed 	somewhat 	in 	each presentation
made 	by 	the 	Superintendent, 	some common 	threads can be
discerned 	in each of 	the question and 	answer 	sessions. 	For
example, 	in each 	session 	a question was 	asked which 	led 	the
Superintendent 	to 	respond 	that 	the 	District 	would 	have 	to
engage 	in hardline 	negotiations. 	In explaining 	that position,
the 	Superintendent 	indicated 	that 	he 	could 	not 	go 	into
negotiations 	with his 	best 	offer, 	that he did 	not 	know where
negotiations would end up, 	and, 	accordingly, 	there would be 	no
guarantees 	that 	employees 	would 	reach 	the 	benefit 	level 	under
contract 	negotiations 	that 	they might 	reach 	if 	matters 	were
left 	to 	the 	informal 	and 	flexible process 	then 	in place. 	In
his 	second 	speech on March 	7, 	1984, 	the Superintendent 	stated:
Now I 	think 	the 	last part 	of your 	question
had 	to do with where would be 	if we go 	- 	if
we go 	into contract negotiations, 	where
would 	be 	in 	relationship 	to 	that with which
we 	already have. 	I 	think we wouldn't go
back 	to ground 	zero. 	On the other 	hand, 	the
office 	would 	make 	a counter 	proposal 	and 	I
can guarantee 	it 	is not going 	to be as good
as 	- 	we can't start out 	in negotiations 	- we
can't 	start with 	our 	very 	best 	offer 	and go
up 	from there. 	We 	have 	to 	start out 	low and
negotiate 	up from there. 	In 	hard-line
negotiations 	we 	don't 	really have 	a choice
and so 	I 	would have 	to 	say 	- 	if we do get
into 	a contract 	with 	any of 	our 	crew 	that we
would 	have 	to 	start with 	less 	than what we
now have 	as 	a counter-proposal 	and 	negotiate
from there. 	(Emphasis 	added.)
During 	that 	same 	speech, 	another 	representative of
management, 	not 	identified on 	the 	transcripts or 	identifiable
29

on the 	tape 	recordings 	in evidence, 	stated 	that 	if 	those 	in
attendance 	had 	read 	the 	newspapers 	they 	would 	know 	that 	in
other 	districts where 	there 	is 	bargaining 	with an 	exclusive
representative, 	employees 	no 	longer get 	increased 	insurance
premiums 	picked 	up 	automatically.
During 	that 	same 	session, 	the Superintendent was 	asked 	if
there 	was 	a possibility that employees might have 	to pay 	for
their 	benefits 	if 	SOSCA were 	elected. 	The 	Superintendent
responded 	as 	follows:
I 	can't 	flatly 	say 	no 	- 	there's 	no
possibility 	that would ever 	happen. 	But 	I
want 	to 	assure you 	that unless we have 	some
kind of 	a major 	catastrophe come 	along, 	the
answer 	is 	no you wouldn't 	have 	to pay 	for
benefits. 	Now that's 	not 	to 	say 	that
someday 	our 	fiscal 	situation wouldn't 	be
such 	that we'd have 	to 	say that 	- well under
anybody, 	you might have to pay part or
something 	like 	that. 	But 	the way things 	are
going 	right now, 	the answer 	is no.
(Emphasis 	added.)
When 	immediately 	asked 	another 	question 	about 	benefit 	levels,
the 	Superintendent 	reiterated 	that 	he could 	not make 	the 	same
statement 	on 	behalf 	of 	CSEA 	because 	with 	CSEA they 	would 	be
working 	under 	a 	rigid 	collective 	bargaining 	agreement.
Another 	point 	underscored 	in all 	the 	question 	and 	answer
sessions was 	that 	if 	they had formal negotiations, 	as 	required
by CSEA, 	CSEA would 	bring 	in outside 	negotiators 	and 	the
District 	would 	be compelled 	to 	hire 	an outside 	negotiator. 	The
Superintendent 	indicated 	that 	he would 	not 	want 	to do 	that, 	but
30

he 	would 	be 	obligated 	to do 	so 	under 	the 	system being pursued
by 	CSEA.
In one 	session, 	the Superintendent stated:
[I]ts 	up to 	the members of 	any of 	the unions
to 	be 	sure 	that 	their 	representative convey
their 	opinions 	and 	their 	feelings 	to
management 	in any 	kind of discussion and 	I
would 	say 	that 	it would 	be 	the
responsibilities 	of 	the members 	to convey 	to
SOSCA what 	their 	feelings are, 	what 	they
want 	them 	to 	represent 	and 	then 	SOSCA would
do 	that 	in their discussions with us. 	The
concern 	I 	have 	is 	that with CSEA so often
those 	representatives might 	come 	from San
Jose or 	Fresno 	and you might 	not 	have had
the 	opportunity 	to 	impress 	them with your
feelings 	and your 	concerns.
The 	question 	of 	agency 	fees 	or 	organizational 	security
arrangements was 	also brought 	up by 	those 	in attendance 	in each
session. 	During each question and answer 	session, 	employees
were 	told 	that 	an 	agency 	fee 	had 	been 	in CSEA's 	original
proposal 	but 	that 	it 	had 	been withdrawn. 	They were 	also 	told
that 	it could be put back 	in. 	In one 	speech, 	the 	second,
employees were told by Mr. 	Fekete, 	counsel for 	the Office, 	that
the 	Superintendent could 	not 	control whether 	or 	not 	there 	would
be 	an agency 	fee. 	Mr. 	Fekete 	indicated 	that 	the Superintendent
would 	be 	presented 	with 	a 	package 	and 	that 	the 	Office couldn't
go 	through and 	indicate 	what provisions 	it didn't 	like 	and
wouldn't 	agree 	to; 	it had 	to accept a bargaining package.
At 	no point 	in 	any 	of 	the 	speeches 	or 	question 	and 	answer
sessions 	do 	either 	the 	transcripts of 	the 	tape 	recordings
31

reflect 	that 	the 	employees 	were 	adequately 	told 	about 	the 	rules
governing 	organizational 	security provisions. 	On 	occasion,
they were 	told 	that management 	had 	to 	agree 	to 	include 	an
organizational 	security provision, 	but 	that 	information was
clouded 	by 	the 	information provided 	by 	the 	Office's 	attorney
regarding 	bargaining 	"packages." 	At 	no point were 	employees
told 	that 	the Office could 	require 	severance 	of 	the
organizational 	security provisions 	from 	the 	remainder 	of 	the
other 	contract 	proposals 	and 	a 	separate 	vote 	"by 	all members 	of
the appropriate bargaining unit" 	[Section 3546(a)].
At 	the 	formal 	hearing 	the 	Superintendent was called 	to
testify 	and 	indicated 	that 	the 	transcripts 	entered 	into
evidence 	as 	Joint Exhibits 	I 	- 	IV were 	reasonably 	accurate
reflections 	of 	what 	had 	transpired 	at 	each of 	the 	three
meetings 	he 	had 	held. 	The Superintendent 	further 	testified
that 	staff meetings 	with 	all 	employees were called 	three 	or
four 	times a year, 	as needed. 	The Superintendent 	further
testified 	that 	he 	had 	held his position 	for 	seven years 	and 	had
been with 	the District 	for 	25 	and 	the 	statements made 	in his
speech 	were 	based 	on 	his 	personal 	observations 	after 	dealing
with 	CSEA 	and 	CTA 	and 	after 	reviewing 	the 	CSEA 	and 	SOSCA
campaign 	literature 	which 	regularly came 	across 	his 	desk.
There can be 	no dispute, 	based 	upon 	the 	information 	in 	SOSCA's
campaign 	literature 	and 	the 	Superintendent's 	speeches 	that 	the
Superintendent's 	speeches did 	in 	fact 	mirror 	the 	arguments
32

being 	raised 	by 	SOSCA and 	the 	positions 	he 	attributed 	to 	CSEA
were 	an 	accurate 	reflection of 	its 	bargaining 	posture.
Duties 	and 	Responsibilities 	of 	Kathy 	Freeman
Kathy Freeman 	is 	employed 	by 	the Respondent 	in 	the position
of Warehouse 	Supervisor 	and 	Property Management 	Technician.
The class 	specifications 	for 	that position define 	it 	as 	follows:
Under general direction, 	maintains 	fiscal
control 	and 	accounting 	of 	warehouse 	store
stock, 	all 	office property and 	equipment 	and
supervises 	the 	warehouse operation.
Maintains 	perpetual 	inventory 	system and
performs 	inventory 	control 	duties 	including
record 	keeping, 	location printouts and
on-site physical 	inventories 	for 	all 	special
schools 	and 	classes 	and 	administration.
The 	distinguishing 	characteristics 	of 	the 	position 	are 	"record
keeping, 	organizing, 	and 	supervisory abilities to assure 	full
efficiency 	in 	the 	acquisition, 	storage 	and delivery of
educational material." 	Two other 	employees work 	in 	the
warehouse, 	Jenna Davis and Rudy Laddaga. 	In her 	testimony,
Freeman was 	uncertain, 	but 	she 	believed 	that Davis was 	an
Account 	Clerk. 	Laddaga 	is 	a Warehouse Worker.11	11
According 	to Evron Barber, 	the Director 	of 	Internal
Business Services 	for 	Respondent, 	"Jenna 	Davis 	is 	the
inventory clerk 	for 	the 	assets 	of 	the County Superintendent,
11The 	Charge 	and 	the 	Complaint 	allege 	only 	that 	Freeman
has 	supervisory responsibilities vis 	a vis 	Laddaga. 	Jenna
Davis 	is not mentioned. 	Nevertheless, 	evidence was presented
regarding 	her 	relationship 	to 	both 	employees 	and 	a 	finding 	will
be made 	in that 	regard.
33

meaning 	the 	equipment 	that 	is designated 	as capitol 	assets."
According 	to Barber, 	he 	assigns work 	to Jenna Davis. 	According
to Freeman, 	she does not assign work 	to Davis and Davis 1
schedule 	is 	basically fixed 	by a 	rotation 	system. 	In other
words, 	Davis goes 	to 	school 	sites or 	particular 	classrooms and
verifies 	inventory 	and 	since 	it 	is 	impossible 	to 	visit 	each
classroom every year, 	she 	rotates 	between programs or 	school
sites.
Freeman does 	not 	tell Davis where 	to go on a particular
day, 	but 	Davis does give 	Freeman a 	routing 	slip 	indicating
where 	she can 	be 	located 	on 	any given day. 	With 	respect 	to
performance 	evaluations, 	Barber 	testified 	that 	Freeman does
prepare 	an 	initial 	record 	of 	Davis 1 performance 	and 	that
Freeman 	then meets 	with Barber 	to discuss 	her 	impressions 	of
the evaluation. 	There are times, 	however, 	when Barber meets
with 	Davis 	personally while 	she 	is performing 	her 	duties with
respect 	to 	inventory 	for 	which 	she 	is 	responsible 	and 	he 	is
able 	to 	evaluate her 	performance on a first 	hand 	basis. 	On
occasion, 	Barber 	disagrees with Freeman's evaluation and
changes 	the 	recommended 	rating 	from 	those 	put 	down 	by 	Freeman.
He 	testified 	that 	his 	input 	is 	always 	necessary 	before 	the
final 	evaluation 	is completed 	and 	that 	he makes 	the
determination as 	to what will 	be 	in each of 	the 	boxes of 	the
evaluation 	form.
34

Rudy 	Laddaga works 	in 	the 	warehouse 	and 	receives 	all
materials, 	stores 	those materials 	and 	leaves the warehouse to
deliver 	those materials 	to 	various 	school 	or 	administrative
sites. 	According 	to Freeman, 	Laddaga's 	schedule, 	where he 	is
working 	and when, 	is determined by 	the work 	that comes 	in. 	She
did 	testify, 	however, 	that he does call her 	if he 	is going 	to
be 	sick 	and, 	theoretically, 	would check with her 	before 	taking
accumulated 	vacation 	time. 	When 	Laddaga 	apparently 	had 	a
problem with absenteeism, 	Barber 	talked to him, 	not Freeman.
Freeman 	was 	included 	in 	Laddaga's 	initial 	employment 	interview,
but 	she 	was 	told 	that 	the 	reason 	for 	including 	her 	in 	the
screening 	process 	was 	that 	she 	would 	be working 	alone 	with 	a
man 	at 	the 	warehouse 	and 	they wanted 	her 	to 	feel 	comfortable.
In terms 	of Laddaga's personnel evaluation, 	Barber 	testified
that 	the 	system used 	is 	somewhat the 	same 	as 	that 	used 	for
Jenna Davis 	but 	he 	has 	even more contact with Laddaga and 	is 	in
a 	better 	position 	to personally 	evaluate 	his performance.
The 	Duties 	and 	Responsibilities 	of Bob Meadows
Bob Meadows 	holds 	a position 	in 	the classification of
Computer 	Operator, 	Supervisor. 	The class 	specifications 	for
that position define 	it as 	follows:
Under direction, 	to be 	responsible 	for
planning 	and coordinating 	the 	work 	of 	the
computer 	operations department; 	to 	supervise
personnel; 	and 	to do 	related work 	as
required.
35

Prior 	to 	attaining 	the position of 	Computer 	Operator,
Supervisor, 	Meadows 	testified 	that he was 	a Computer 	Operator
and 	that 	the change 	from one 	job classification 	to 	another 	did
not entail 	a change 	in his duties and responsibilities. 	Mr.
Meadows 	testified 	that 	he 	was 	transferred 	from 	the 	position 	of
Computer 	Operator 	to 	the 	position 	of 	Computer 	Operator,
Supervisor 	so 	that 	he could 	be 	placed 	on 	a 	salary 	level
comparable 	to 	that 	of 	the programming 	staff. 	When 	the position
of Computer 	Operator, 	Supervisor 	was created 	some 	seven or
eight years 	ago, 	Meadows could not even 	recall 	if he had any
personnel 	to 	supervise.
Essentially, 	Meadows 	testified 	that 	he 	supervises 	work 	and
not personnel. 	He 	indicated 	that work 	load priorities 	and
priorities 	for 	particular 	job 	tasks 	were 	established 	prior 	to
the 	time 	he 	attained 	the 	position of 	Computer 	Operator,
Supervisor 	and 	that 	he 	and 	a person who 	now works 	with him as 	a
computer 	operator, 	Susan Yursik, 	understand 	those priorities
and 	work 	things 	out 	together.
Meadows 	testified 	that 	he played 	no 	role 	in 	the 	hiring 	of
Susan Yursik. 	Moreover, 	he 	testified 	that he had no 	authority
with respect to transfers, 	suspensions, 	layoffs, 	recalls or
promotions. 	In addition, 	he testified that on one occasion he
did 	recommend 	that 	she 	be promoted 	to 	the position of 	junior
programmer 	and 	he discussed 	it with his 	supervisor, 	Randy
36

Freeman, 	Director 	of Data Processing, 	but 	someone else was
selected 	for 	the position.
Freeman described Meadows 	as 	one 	of 	three 	key people 	in 	his
15 	person computer 	department. 	Freeman 	identifies 	a 	key person
as one who 	is most senior 	in a particular 	area, 	either
programming, 	operations or data entry, 	or 	a person 	in whom
Freeman 	has 	the most confidence. 	In 	terms of 	the 	evaluation of
employee 	work 	performance, 	Freeman 	testified 	that 	he 	usually
consults with 	the 	key person 	in a given area, 	but 	he considers
himself 	responsible 	for 	the 	evaluation. 	His discussion 	is
ordinarily 	brief, 	somewhat 	informal 	and he 	fills out 	the 	final
evaluation 	form. 	Freeman 	indicated 	that 	on 	five 	or 	six
occasions 	he 	has 	disagreed 	with 	his 	key 	people 	about 	the
evaluation 	and 	that 	his 	own determination prevails. 	Moreover,
Freeman 	testified 	that 	he 	is 	in a position 	to 	evaluate 	the 	work
of 	Susan Yursik. 	He 	has 	contact 	with 	her 	daily 	and can observe
her 	work 	from outside 	his 	office. 	Although 	Freeman 	testified
that he 	is 	not 	at 	the worksite 	from 	5:00 p.m. 	to 	6:30 p.m. 	when
Susan Yursik 	is working, 	Mr. 	Meadows 	is 	not present during 	that
time 	frame either.
Respondent's 	Role 	in Circulating 	the 	Decertification
Petition
In 	its post-hearing brief, 	CSEA argues 	that 	it 	is entitled
to 	a 	ruling 	in 	its 	favor 	on 	the 	Unalleged charge 	that
management 	and 	supervisory 	employees 	participated 	in 	the
circulation 	and promotion 	of 	the 	decertification petition 	in
favor 	of 	SOSCA and 	against 	CSEA.
37

Neither 	the 	amended Charge/Complaint 	in LA-CE-1985 	nor 	the
amended 	Charge/Complaint 	in LA-CE-1897 	makes 	reference 	to 	an
alleged 	role 	of 	supervisory or 	management 	employees 	in 	the
formulation 	and 	circulation 	of 	the 	decertification petition.
At 	several 	times during 	the course 	of 	the 	formal 	hearing,
because 	it was 	not 	alleged, 	the 	undersigned 	interrupted 	the
Charging 	Party, 	and 	indicated 	that 	its questioning 	was 	delving
into 	the 	matter 	of 	the 	origination 	and circulation of 	the
decertification petition which was 	not 	properly 	an 	issue 	in 	the
proceedings 	then pending. 	In other words, 	inquiry 	into certain
areas was curtailed 	because, 	given the 	scope of 	the Complaints,
the questions 	were 	not 	relevant.
At 	no 	time 	during 	the 	course 	of 	the 	formal 	hearing 	did 	the
Charging 	Party 	seek 	to 	amend 	the charges 	and 	the 	Complaints 	to
allege 	that 	Respondent 	had 	a 	role 	in 	the 	circulation 	of 	the
decertification 	petition. 	Given 	the 	Charging 	Party's 	failure
to move 	for 	an amendment, 	and given the pronouncements of 	the
undersigned 	regarding 	the 	scope of 	the 	hearing, 	the Respondent
reasonably 	saw no 	need 	to 	"refute" 	the 	innuendo 	raised 	by 	the
Charging 	Party's case. 	Accordingly, 	consideration of 	an
amendment 	at 	this point 	in 	the proceedings 	would 	unduly
prejudice 	the 	Respondent 	and consequently, 	the 	Unalleged charge
will 	not 	be considered.11	11
1 1 See 	Santa Clara Unified 	School 	District 	(9/26/79) 	PERB
Decision No. 	104. 	In accord, 	San Ramon Valley Unified School
District 	(8/9/82) 	PERB Decision No. 	230.
38

III. 	ISSUES
1. 	Did Allen Hall's 	involvement 	in circulation of 	the
letter 	of concern violate 	the provisions of 	section 	3543.5(a),
(b), or (d)?
2. 	Did 	the speeches of 	the Superintendent 	and 	his
colleagues on March 	7 	and 	8 violate 	the provisions of 	sections
3543. 5(a) , (b) , and (d) ?
3. 	Did 	the 	evidence 	establish 	that 	Kathy Freeman 	and 	Bob
Meadows 	are 	supervisors 	as 	that 	term 	is defined 	in 	the 	EERA
and, 	accordingly, 	did their conduct with 	respect to 	the
formation 	and promotion 	of 	SOSCA violate 	the 	EERA? 	and
4. 	Did 	the 	Superintendent's 	speeches 	so 	affect 	the
election process 	as 	to prevent 	the 	employees 	from exercising
free 	choice?
IV. 	CONCLUSIONS OF LAW
A. 	Allen 	Hall 	and 	the 	Letter 	of 	Concern
1. 	Interference 	and 	Threats
There 	is no dispute that Hall, 	however 	innocently, 	made
known 	his disapproval of 	certain CSEA activities. 	In 	addition
to his statements, 	Hall signed the 	letter 	of concern and
assisted 	in 	its circulation. 	On working time, 	he transported
the 	letter 	of concern to Duane Haskins 	and gave 	him an
opportunity to 	read 	it, 	review it and sign 	it. 	Moreover,
during 	working 	hours, 	he 	invited Garbett 	and Salazar 	to 	review
and 	sign 	the 	letter 	of 	concern 	and 	when 	they 	indicated 	that
39

they were CSEA members, 	they were ordered 	back 	to work. 	In
addition, 	Hall directed two other 	employees, 	Joe Riehl and Mark
Underwood 	to go to Kathy Freeman's office 	for 	the purpose 	of
reading 	and 	reviewing, 	and possibly 	signing, 	the 	letter 	of
concern. 	Finally, 	there 	is 	some evidence 	that Allen Hall was
present when Joyce Bussell, 	his 	secretary, 	was called 	into
Stanton's 	office 	and 	asked 	to 	read 	the 	letter 	of 	concern.
Allen 	Hall's 	involvement 	with 	the 	letter 	of 	concern
presents 	two 	threshold 	legal questions, 	neither 	of which 	is
easily 	resolved. 	The 	first question presented 	is whether 	the
actions of Hall are attributable 	to the employer, 	the Office of
the 	Kern 	County Superintendent 	of 	Schools. 	The 	second question
is whether 	or 	not Hall's conduct, 	his 	endorsement of 	and his
circulation of 	the 	letter 	of concern, 	crossed 	the 	line dividing
protected 	speech 	and 	impermissible 	interference 	or 	coercion.
With 	respect to 	the first question, 	based 	upon the 	facts
presented, 	it 	is concluded that Hall's actions are 	attributable
to 	the Respondent. 	As 	noted by 	the 	PERB 	in Antelope Valley
Community College District 	(7/18/79) 	PERB Decision No. 	97:
The 	law of 	agency 	has 	been consistently
applied 	to 	the 	field of 	labor 	relations 	in
the private 	sector, 	expressly to hold
employers 	accountable 	for 	the 	acts of
supervisors 	and management whether 	or 	not
such 	acts 	are 	authorized 	by 	the 	employer.
Id. 	at 9.
-
In that same decision, 	citing Broyhill Furniture Co. 	(1951)
94 NLRB 1452 	[28 LRRM 1211], 	the Board noted that unlawful
40

actions 	of 	supervisors 	were 	attributable 	to 	an 	employer 	even
when 	the 	supervisors 	had 	been 	instructed 	to 	refrain 	from
interfering 	with 	the 	organizational 	activities 	of 	their
employees. 	That 	finding 	was 	"predicated 	on 	the 	employer's
failure 	to 	inform the employees 	of 	the 	restrictions 	placed 	on
the supervisors." 	Id
- . 	at 11.
In 	the 	instant case, 	Hall was 	recognized as 	a 	supervisor
and 	he 	used 	his 	supervisory position 	to 	facilitate 	the
distribution or 	circulation of 	the 	letter 	of concern. 	He 	not
only 	spoke 	casually 	with 	his 	subordinates 	about 	the 	existence
of 	the 	letter 	of concern, 	he 	informed 	them 	it would 	be
arriving. 	Moreover, 	by virtue of his supervisory status, 	he
was 	free 	to 	go 	out 	to 	the 	Blair 	Learning 	Center 	and 	deliver 	the
letter 	to Duane Haskins, 	admittedly on working 	time. 	In
addition, 	he was prepared 	to give 	two 	other 	employees 	time off
from work 	to 	review 	the 	letter 	and 	only 	admonished 	them 	for 	not
performing 	their 	assigned 	duties 	when 	they 	expressed 	their 	lack
of 	interest. 	Moreover, 	it 	is concluded that Hall's 	supervisory
status 	had 	an 	impact 	on 	how Joe 	Riehl 	and Mark 	Underwood 	were
going 	to 	spend 	their 	break 	time. 	They were directed 	to 	go 	to
Kathy 	Freeman's 	office 	by 	their 	supervisor 	and 	they 	did 	so.
Finally, 	in the circulation of 	the 	letter 	of concern, 	Hall was
allied 	with 	other 	more 	high 	ranking 	management personnel. 	The
testimony of 	Joyce 	Bussell 	is credited 	and 	it 	is 	found 	that
Allen Hall and Dr. 	Jack 	Stanton, 	Director 	of Research and
41

Development, 	were present when Bussell was called 	into
Stanton's 	administrative 	office 	and 	asked 	what 	she 	thought 	of
the 	letter 	of concern. 	In 	short, 	although Hall might want 	to
be considered 	"one 	of 	the 	boys" 	be was perceived 	by his
subordinates 	as 	a 	representative 	of 	management 	who 	took 	an
active 	role 	in 	the circulation of 	the 	letter.
Moreover, 	management perceived him as 	a 	representative 	of
management 	as 	evidenced 	by 	his presence 	at 	a meeting 	conducted
by 	the 	Superintendent early 	in January 	1984 where 	supervisors
were 	instructed 	not 	to 	interfere or 	take 	a position vis 	a vis
CSEA or 	SOSCA. 	It 	is probably not 	insignificant 	that 	this
meeting 	was 	called 	not 	long 	after 	the 	Charging 	Party 	filed 	an
unfair 	practice 	charge 	against 	the 	Respondent 	naming 	Alan
Hall. 	In fact, 	the Superintendent testified as follows:
After 	it came 	to my 	attention 	that 	an unfair
labor 	practice 	charge 	had 	been 	filed 	against
the office and Mr. 	Hall, 	I called the, 	I
called, 	I 	think 	it was three meetings, 	three
different groups 	of 	management 	and
supervisory 	employees 	together 	and 	told 	each
of 	them essentially 	the 	same 	thing 	which
I've, 	which 	is mentioned here 	in the talk
and 	that was 	that while 	I did 	not 	believe
the 	allegation 	that Mr. 	Hall had coerced 	to
vote 	or 	to 	sign anything 	that 	I 	wanted
everyone 	to 	be 	especially careful 	not 	to 	use
their 	supervisory 	position 	to 	influence
anyone's vote.
Although 	the 	Superintendent may 	certainly 	have 	been
well-intended 	in calling his meetings, 	if Mr. 	Hall's conduct
did 	violate 	the 	EERA, 	a meeting called 	by 	the 	Superintendent
with 	supervisory 	and management 	employees 	only, 	is 	insufficient
42

to disavow the 	relationship between Hall 	and 	the 	employer. 	In
Antelope Valley, 	supra, 	the Board 	set 	forth 	several 	factors
which 	should 	be 	used 	in determining 	a 	school district's
responsibility 	for 	the 	actions of 	its 	supervisors. 	In 	its
analysis, 	the Board noted:
Three 	sets 	of 	factors 	are considered 	in
determining 	the 	District's 	responsibility
for 	the designees' actions: 	(1) 	the
spectrum of 	actions 	engaged 	in 	by 	designees
which 	go 	well 	beyond 	the 	statutory 	right 	of
self 	organization 	afforded 	supervisory
personnel; 	(2) 	the open and notorious manner
in which those actions were taken; 	(3) 	the
fact that the District at no time, 	and
particularly 	after 	the 	CSEA charge 	was
filed, 	did 	anything 	to disabuse 	the
widespread 	impression 	among 	classified
employees 	that 	the designees 	indeed 	spoke
for 	the District, 	which 	it could have done
either 	by withdrawing 	the designations, 	by
publicly 	acknowledging 	that 	the 	status 	of
the designees was 	in dispute and that 	is 	a
consequence 	of 	that dispute 	their 	actions
were 	not 	authorized 	or 	ratified 	by 	the
District, 	or 	by expressly disassociating
itself 	from those 	actions 	in 	any manner.
Id, at 14.
-
In 	the 	instant case, 	the Superintendent did 	nothing 	to
communicate 	to 	employees 	that 	the 	actions of 	Hall were
unauthorized 	and 	accordingly, 	not 	ratified 	by management. 	In
failing 	to do 	so, 	employees continued 	to operate under 	the
assumption 	that 	Hall's 	actions 	were 	those 	of 	the 	employer.
The 	question 	of whether 	the conduct 	of Respondent's
supervisor 	constituted 	a violation of 	section 	3543.5(a) 	is 	also
resolved 	in 	the 	Charging 	Party's 	favor. 	Through 	the 	testimony
43

of 	its witnesses 	and 	in 	its brief, 	the Respondent 	argues
against 	such 	a conclusion 	by highlighting 	the 	fact 	that 	the
superintendent 	had 	advised 	supervisors 	not 	to coerce 	employees
or 	influence 	their 	choices 	and, 	by 	further 	arguing 	that
employees who did 	sign 	the 	letter 	of concern, 	did 	so
voluntarily. 	In finding 	a violation of section 3543.5(a),
however, 	actual 	interference or coercion need not be 	found. 	In
Carlsbad 	Unified 	School District 	(1/30/79) 	PERB Decision No.
89, 	the Board 	established 	the 	test 	to 	be 	used 	in 	interference
13	13	cases. 	For 	a case 	such as 	this, 	the 	applicable 	test 	is 	set
forth as 	follows:
Where 	the 	Charging 	Party 	establishes 	that
the 	employer's 	conduct 	tends 	to 	or 	does
result 	in 	some harm to 	employee 	rights
granted 	under 	the EERA, 	a prima 	facie case
shall 	be deemed 	to exist;
Where the harm to employees' 	rights 	is
slight, 	and 	the employer 	offers
justification 	based 	on 	operational
necessity, 	the competing 	interest of 	the
employer 	and 	the 	rights of 	the 	employees
will 	be 	balanced 	and 	the charge 	resolved
accordingly. 	Id. 	at 10.
In 	the 	instant case, 	there 	really can be no dispute 	that
the conduct 	engaged 	in 	by 	the 	supervisor 	of 	the 	Respondent's
maintenance 	and 	operations 	division 	tended 	to 	interfere 	with
1 3 The 	Board's 	decision 	in Novato 	Unified School 	District
(9/30/82) 	PERB Decision No. 	210 	sets 	forth the test 	to be used
in cases 	alleging 	violation of 	section 	3543.5(a) 	when
discrimination 	and 	not 	"mere 	interference" 	is 	the 	issue.
Novato did 	not modify the 	test 	in 	simple 	interference 	cases.
44

employee 	rights 	guaranteed 	under 	the 	EERA. 	A supervisor 	signed
and 	circulated 	a 	letter 	which 	was 	extremely 	negative 	and
disparaged 	the quality of CSEA representation. 	Moreover, 	the
letter 	contained 	an 	implied 	threat 	of 	loss 	of 	benefits 	if 	CSEA
and 	its 	supporters 	continued 	their 	"push" 	for 	a collective
bargaining contract. 	In signing 	the 	letter 	of concern, 	the
supervisor 	ratified 	and 	gave 	new meaning 	to 	that 	threat.
In 	its 	brief, 	the Respondent 	seems 	to argue 	that Hall's
conduct 	in 	transporting 	the 	letter 	to 	Duane 	Haskins 	at 	the
Blair 	Learning 	Center 	was 	insulated 	because 	Haskins 	wanted 	to
see 	the 	letter 	and wanted 	to 	sign 	it. 	Even 	if 	that were 	the
case, 	Garbett 	and Salazar 	did 	not 	ask 	to 	see 	the 	letter.
However, 	they did 	see one 	of 	their 	co-workers 	being 	given 	time
off work 	in order 	to 	read, 	review and sign the 	letter; 	whereas
when 	they expressed 	no 	interest 	in 	signing 	the 	letter, 	they
were 	ordered 	back 	to work. 	Similarly, 	employees 	such as Mark
Underwood, 	who 	already 	felt 	that 	his 	relationship with 	his
supervisor 	was 	poor 	and who did 	not want 	to do 	anything 	to
further 	aggravate 	the 	situation, 	might 	feel constrained 	to 	sign
a 	letter 	actively 	supported 	by 	that 	same 	supervisor. 	Such
conduct 	by the 	supervisor, 	although admittedly not 	egregious,
crosses 	over 	the 	line 	of 	a permissible 	expression of 	opinion.
Given 	the content of 	the 	letter, 	given Hall's 	signature 	on 	the
letter, 	and given his 	active 	role 	in both 	its distribution and
the gathering of 	signatures, 	it 	is 	found 	that the employer
45

violated 	the Act. 	Under 	Carlsbad, 	this 	result 	is mandated 	for
the 	employer 	advanced 	no 	justification 	for 	the conduct 	of 	its
supervisors.
2. 	Alleged 	Denial 	of 	CSEA Rights 	and 	Alleged 	Domination
or 	Interference
Without citation 	to 	authority, 	CSEA also alleges 	that
Respondent's 	involvement 	in 	the 	endorsement 	and circulation of
the 	letter 	of 	concern constituted 	a 	violation of 	section
3543.5(b) 	and section 3543.5(d). 	In support of 	its argument
that 	the 	employer 	denied 	to CSEA 	rights 	guaranteed 	to 	it 	by 	the
EERA, 	the Charging 	Party 	argues 	that 	the EERA guarantees 	it 	the
right 	to 	represent 	its members 	toward 	the 	end 	of 	reaching 	a
collective 	bargaining 	agreement. 	Since 	the 	letter 	of 	concern
opposed 	a collective 	bargaining 	agreement, 	the 	Charging 	Party
apparently 	takes 	the 	position 	that 	the 	letter 	of 	concern
interfered 	with 	its 	right 	to 	communicate 	with 	employees
regarding 	a collective 	bargaining 	agreement 	and 	therefore, 	the
letter 	of 	concern 	interfered 	with 	rights 	guaranteed 	by 	the 	EERA.
The 	Charging 	Party's 	argument 	is 	not particularly 	logical
or 	persuasive. 	The 	record 	simply does 	not 	support 	a conclusion
that 	CSEA was denied 	any 	rights 	guaranteed 	to 	it 	by 	the 	EERA.
Although Respondent's 	actions 	vis 	a 	vis 	the 	employees may 	have
impaired CSEA's 	effectiveness, 	arguably that 	is 	always 	the case
when a violation of 	section 	3543.5(a) 	is 	alleged 	and 	found.
The 	PERB 	has 	not 	found 	that violations 	of 	section 	3543.5(a)
46

result 	in derivative 	violations of 	section 	3543.5(b) 	and 	this
case 	does 	not compel 	a different 	result. 	See Antelope Valley
Community College District, 	supra, 	at 20; 	Novato Unified School
District 	(9/30/82) 	PERB Decision No. 	210 at 21.
Similarly, 	CSEA's 	argument 	that 	the Respondent violated
section 	3543.5(d) 	fails. 	The 	following paragraph from the
Charging 	Party's 	brief 	is 	the 	only 	argument 	advanced 	in 	support
of 	that contention.
The 	formulation of 	initial collective
bargaining 	proposals 	must 	be 	considered 	an
internal administrative matter. 	Here, 	the
employer 	sought to disrupt, 	and 	in fact
disrupted 	the 	formulation 	of 	initial
bargaining proposals, 	thereby violating
Government Code section 3543.5, 	subdivision
(d).
As a theoretical proposition, 	the Charging 	Party's argument
may make 	some 	sense. 	However, 	its advancement 	in the 	instant
proceeding 	is 	not persuasive 	nor 	supportive 	of 	the 	Charging
Party's position. 	In the instant case, 	there is no evidence
that 	the 	employer 	or 	agents 	of 	the 	employer 	participated 	in 	any
fashion 	in the 	formulation of 	the 	letter 	of concern. 	Moreover,
there 	is 	no evidence 	that 	the 	involvement of Allen Hall
contributed 	"in 	fact" 	to disruption 	in the 	formulation of 	an
initial bargaining proposal. 	Finally, 	in the instant case, 	the
evidence 	supports 	the 	conclusion 	that 	CSEA had 	already
formulated 	its 	initial 	bargaining 	proposal 	and 	CSEA 	itself
solicited 	input 	from employees 	who 	had 	hitherto 	shown 	little 	or
no 	interest 	in 	the 	activities of CSEA.
47

B. 	The 	Superintendent's 	Speeches
On March 	7 	and 	8, 	1984, 	the Superintendent 	and other 	high
ranking 	members 	of his 	staff made 	three 	"captive 	audience"
presentations to all employees of 	the District. 	Some of 	the
information provided was 	factual, 	some was opinion, 	some was
inaccurate or 	incomplete, 	and 	some of 	the 	statements made
contained 	a 	threat 	that 	fringe 	benefits 	and perhaps 	other
benefits, 	would be 	lost 	if 	CSEA won the 	election.
There 	is 	no 	evidence 	that 	the 	Superintendent gave direct
support 	to 	SOSCA or 	that 	he 	directly or 	indirectly 	interfered
with CSEA's 	ability 	to conduct 	its election campaign.
Moreover, 	given 	that 	the 	speeches were made 	almost 	three weeks
prior 	to 	the 	election, 	there 	is no 	evidence that CSEA was
prevented 	from 	communicating 	with 	classified 	employees 	and
refuting 	inaccurate 	information 	disseminated 	during 	the
speeches 	or 	clarifying 	incomplete 	or 	ambiguous 	information
provided 	during 	the 	speeches 	and 	the 	subsequent 	question 	and
answer sessions. 	On the other hand, 	however, 	it 	is unlikely
that 	CSEA could 	have 	taken any 	action 	to 	overcome 	the 	threats
made 	by 	the 	Superintendent with 	respect 	to 	the 	loss of 	benefits
if 	CSEA won 	the 	election.
Admittedly, 	the question of whether 	the 	Superintendent's
speeches 	violated 	the protections guaranteed 	by 	the 	EERA 	is 	not
easily 	resolved. 	In 	Clovis 	Unified 	School 	District 	(7/2/84)
PERB Decision No. 	389, 	the employer had engaged 	in numerous
48

acts 	which 	the 	Board 	found 	interfered 	with 	employee 	rights 	and
discouraged 	membership 	in one 	organization 	and preference 	for
another. 	In 	the 	instant case, 	the 	the employer 	gave three
speeches 	and 	the 	evidence 	did 	not 	establish 	participation 	in
other 	unlawful acts. 	Nevertheless, 	the concepts 	relied on by
the Board 	in Clovis, 	such as 	the 	"totality of 	the
circumstances" 	and 	the 	"cumulative 	effect" 	of 	the conduct 	are
still 	applicable; 	one must 	look 	at 	the 	totality of 	the 	speeches
and 	question 	and 	answer 	sessions 	and 	the 	cumulative 	effect
those presentations had on employees who were mandated 	to 	attend.
In 	resolving 	this difficult question, 	guidance 	is 	found 	in
the decision of 	the 	United 	States 	Supreme 	Court 	in NLRB 	v.
Gissell Packing Co. 	(1969) 	395 US 	575, 	618 	[71 LRRM 2481] 	In
that case, 	the Court stated:
Thus, 	an employer 	is free to communicate to
his 	employees any of 	his general views 	about
a particular 	union, 	so 	long 	as 	the
communications 	do 	not contain 	a 	"threat of
reprisal or 	force or 	promise of 	benefit."
He may even make 	a prediction as 	to 	the
precise 	events 	he 	believes 	unionization will
have on his company. 	In 	such a case,
however, 	the prediction must be carefully
phrased 	on 	the 	basis 	of 	objective 	fact 	to
convey 	an 	employer's 	belief 	as 	to
demonstrably 	probable 	consequences 	beyond
his control 	. . . . 	if 	there 	is 	any
implication 	that 	an 	employer may 	or 	may not
take 	action 	solely 	on 	his 	own 	initiative 	for
reasons 	unrelated 	to 	economic 	necessities
and known only to him, 	the 	statement 	is no
longer 	a 	reasonable prediction 	based 	on
available 	facts, 	but 	a threat of 	retaliation
based 	on misrepresentation 	and coercion, 	and
as 	such without 	the protection of 	the 	First
Amendment. 	. . . 	As 	stated elsewhere, 	an
49

employer 	is 	free only 	to 	tell 	"what he
reasonably 	believes 	will 	the 	likely 	economic
consequences 	of 	unionization 	that 	are
outside his control," 	and not 	"threats of
economic 	reprisal 	to 	be 	taken 	solely on 	his
own violition. 	395 US at 	618 	[71 LRRM
at 2497] 	(Citations omitted.)
In NLRB v. 	Lenkurt Electric Co. 	(9th Cir. 	1971) 	438 F.2d 	1102
[71 LRRM 2625], 	the Court of Appeals analyzed the decision of
the Supreme Court 	in Gissell 	Packing Co., 	supra, 	and stated:
We 	read 	this 	opinion 	as 	establishing 	two
standards 	by which 	an employer's 	utterances
may be objectionable. 	It 	appears clear 	that
an 	employer may 	not make predictions which
indicate 	that he will, 	of his own volition
and for his own reasons, 	inflict adverse
consequences 	upon his 	employees 	if 	the 	union
is chosen. 	This would constitute a threat
of retaliation. 	Also, 	an employer may not,
in the 	absence of 	a 	factual basis 	therefor,
predict 	adverse 	consequences 	arising 	from
sources 	outside his volition and control.
This would not 	be 	a 	retaliatory threat, 	but
would 	be 	an 	improper 	restraint 	nevertheless.
. 	. 	. 	Thus, 	an employer may not impliedly
threaten 	retaliatory consequences 	within 	his
control, 	nor may he, 	in an excess of
imagination and 	under 	the guise 	of
prediction, 	fabricate 	hobgoblin consequences
outside his control which have 	no basis 	in
objective 	fact. 	(Citations omitted.)
In Rio Hondo Community College District 	(5/19/80) 	PERB
Decision No. 	108, 	the 	PERB acknowledged that although there was
no 	free 	speech proviso 	in 	the EERA, 	employers had 	rights
analogous 	to 	those 	established 	by 	section 	8(c) 	of 	the National
Labor 	Relations 	Act 	and 	recognized 	by 	the NLRB and 	the Courts.
In 	Rio Hondo, 	the Board concluded 	that a public 	school employer
has 	the 	right,
50

To 	express 	its 	views 	on 	employment 	related
matters 	over 	which 	it has 	legitimate
concerns 	in order 	to 	facilitate 	full and
knowledgeable 	debate.
But 	the 	right 	of 	employer 	speech 	is 	not 	unlimited 	and,
Speech which contains 	a 	threat 	of 	reprisal
or 	force or 	promise 	of 	benefit will be
perceived 	as 	a means 	of violating 	the Act
and will, therefore, 	lose 	its protection.
(See also, 	John Swett Unified School District 	(12/21/81) 	PERB
Decision No. 	188.) 	Thus, 	the 	speeches of the Superintendent
and 	the 	question 	and 	answer 	sessions 	which 	followed 	each 	speech
must 	be 	reviewed 	in 	accordance 	with 	the 	standards 	established
by 	the 	NLRB and 	the 	PERB.
1. 	Interference.
Looking 	at 	the 	import 	of 	the entire presentation made 	by
the Superintendent, 	it must be concluded 	that his 	speech tended
to 	interfere 	with 	the 	exercise 	of 	employee 	rights 	guaranteed 	by
section 	3543 	to 	"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"
or 	"to 	refuse 	to 	join or 	participate 	. . . " 	The
Superintendent made 	it 	clear 	that 	support 	for 	CSEA 	and 	its
collective 	bargaining 	contract 	would 	result 	in 	a decline 	in
benefits 	to 	employees 	irrespective 	of 	the 	District's 	ability 	to
provide the same 	level of benefits. 	Essentially, 	the
Superintendent 	was 	conditioning 	a continuation 	of 	fringe
benefits 	on the 	waiver 	of 	the 	employees' 	basic 	statutory 	right
51

to collective 	bargaining. 	Such 	a practice was 	expressly
prohibited 	by 	the Board 	in Santa Monica Community 	College
District 	(9/21/79) 	PERB Decision No. 	103. 	In Santa Monica, 	the
Board 	held 	that:
Requiring 	employees 	to give 	up employee
organizational 	activities 	as 	a condition 	to
receiving 	a pay 	increase 	tends 	to have 	a
discouraging 	effect 	on 	both present and
future protected 	activity. 	Such
interference 	is 	"inherently destructive" 	of
employee rights. 	Id. 	at 20.
As previously noted, 	in his speeches 	the Superintendent
also 	emphasized 	that collective 	bargaining 	would, 	in and 	of
itself, 	destroy 	flexibility 	and 	undermine 	the 	relationship
between 	the 	Superintendent 	and 	his 	employees 	because 	he 	would
be 	"forced" 	to bring 	in outsiders to act as negotiators.
Again, 	the 	employer 	implied 	that 	the mere 	exercise of 	statutory
rights 	guaranteed 	to 	employees 	and 	to 	CSEA would 	negatively
impact on employees. 	In each facet of his presentation, 	the
Superintendent 	implied 	that 	if 	CSEA continued 	to pursue 	a
contract, 	and he believed 	it would, 	he would have no control
over 	the 	results. 	Fringe 	benefits would 	automatically 	be
reduced, 	rigidity would automatically be 	imposed, 	and, 	if 	the
union 	insisted, 	agency 	shop would be 	the 	rule. 	Notwithstanding
his original disclaimers, 	the comments of 	the Superintendent and
his colleagues 	could 	reasonably 	be 	perceived 	as 	a 	threat 	of
reprisal 	if 	CSEA won and 	a promise 	of 	benefit 	if 	CSEA lost 	and
SOSCA won. 	All 	employees were 	required 	to 	attend 	the
52

Superintendent's presentation, 	the 	Superintendent was
accompanied 	by 	top management personnel 	and 	by 	legal counsel,
and 	the 	message delivered 	was 	not couched 	in 	the 	form of
opinion 	but 	rather 	as a 	statement of 	fact.
Having 	determined 	that 	the 	Superintendent's 	speeches 	and
the comments 	of 	other 	management 	employees constituted 	a 	threat
to 	employees 	and 	tended 	to 	interfere with 	the 	exercise 	of
protected 	rights, 	the 	burden 	shifts 	to 	the 	employer 	to 	show
that 	its 	speech 	or 	its conduct was 	required 	by virtue of
business 	necessity. 	No 	such 	justification was proffered 	in 	the
hearing 	or 	in post-hearing 	briefs. 	Although 	the portion of 	the
Superintendent's 	speeches 	which describe 	the 	election process
and 	the 	District's 	experiences 	without 	collective 	bargaining
were 	justified 	and permissible, 	once 	the 	Superintendent 	and 	his
colleagues 	began describing 	the 	consequences 	of 	a CSEA victory,
their 	speech was 	no 	longer 	protected. 	Those consequences do
not 	inherently 	flow 	from 	a 	collective 	bargaining 	relationship
and prevention 	of 	those consequences 	was 	something 	easily
within the power of 	the Respondent. 	Accordingly, 	it 	is 	found
that 	the conduct of 	the Superintendent and 	the 	speeches 	and
question 	and answer 	sessions on March 	7 	and March 	8, 	1984 were
not protected 	and 	they 	violated 	the 	rights 	guaranteed 	to
employees 	under 	the 	EERA.
53

2. 	Encouraging 	Employees 	to 	Join One 	Employee Organization
in 	Preference 	to Another
In several cases, 	the PERB has been called upon to
determine 	whether 	or 	not 	an 	employer 	has 	violated 	section
3543.5(d), 	by 	"in any way encourag[ing] 	employees to join any
organization 	in preference 	to 	another." 	In Santa Monica
Community College District, 	supra, 	the Board analyzed 	that
section 	of 	the 	Act 	and held:
This 	section 	imposes on employers 	an
unqualified 	requirement 	of 	strict
neutrality. 	There 	is no 	indication 	in 	the
statutory 	language 	that 	the 	Legislature
meant 	to prohibit 	only 	those 	acts which were
intended 	to 	impact on 	the 	employees 	free
choice. 	The 	simple 	threshold 	test of
section 	3543.5(d) 	is whether 	the employer's
conduct 	tends 	to 	influence 	that choice or
provide 	stimulus 	in one 	direction or 	the
other.
PERB 	disagrees 	with 	the 	District's
contention 	that 	finding 	a violation of
section 	3543.5(d) 	depends 	upon proof 	that
the 	employees 	actually 	changed 	membership 	as
a 	result of 	the employer's acts. 	The word
encourage 	connotes 	nothing 	more 	than
stimulus, 	favor or being conducive to a
particular 	result. 	Id. 	at 	22 	(Emphasis
added.)
Although 	the 	Respondent's 	actions 	in 	the 	instant 	case 	are
different 	from the 	actions 	of 	employers considered 	by 	the 	PERB
in Clovis Unified School District, 	supra, 	Santa Monica
Community College District, 	supra, 	and Sacramento City Unified
School District 	(4/30/82) 	PERB Decision No. 	214, 	they
nevertheless 	crossed 	the 	line 	of permissible 	employer 	conduct.
54

The 	same 	actions which 	led 	to 	a 	finding 	of 	a violation of
section 3543.5(a), 	in this case, 	require finding a violation of
section 3543.5(d). 	In the 	instant case, 	the employer did not
merely 	state 	that 	the 	election of 	CSEA would 	result 	in 	a
reduction of 	fringe benefits, 	the 	employer 	specifically 	stated
that 	unless 	there was a 	"major catastrophe" 	employees would not
have 	to pay 	for 	their 	fringe 	benefits 	if 	SOSCA won 	the
election. 	Moreover, 	the employer 	indicated 	that under 	SOSCA,
local control of 	employee 	relations would 	be maintained, 	agency
fees 	would 	not 	be 	required 	and monthly 	dues 	would 	be
significantly 	reduced. 	Even 	though 	the 	Charging 	Party 	failed
to 	establish 	that 	the 	Respondent dominated 	or 	controlled 	SOSCA,
by his 	speeches, 	the 	employer 	actively campaigned 	for 	SOSCA and
encouraged employees 	to 	abandon CSEA and 	support 	SOSCA. 	In 	so
doing, 	it 	is 	found that 	the employer 	violated 	the Act.
3. 	Denial 	of 	Rights 	Guaranteed 	to CSEA
The 	record 	discloses 	no 	independent 	evidence 	that 	CSEA was
denied any 	rights guaranteed 	by the EERA. 	As 	noted 	in the
discussion of Case No. 	LA-CE-1895, 	the PERB has not yet
determined 	that violations 	of 	section 	3543.5(a) 	or 	3543.5(d)
constitute concurrent or 	derivative 	violations of
section 	3543.5(b). 	Nothing 	in the 	instant case compels
establishment of 	a new rule of 	law and, 	accordingly, 	this
aspect 	of 	the 	Charge/Complaint 	is dismissed.
55

C. 	Supervisory 	Status 	of 	Kathy 	Freeman 	and Bob Meadows
Since 	the 	filing 	of 	its proposed 	amendment 	and 	the 	actual
amendment 	of 	the 	Complaint 	shortly 	before 	the commencement 	of
the 	formal hearing, 	the Charging 	Party has 	argued 	that Kathy
Freeman 	and Bob Meadows 	are 	supervisors 	as 	that 	term 	is defined
in the EERA. 	Even 	though 	the position of Bob Meadows 	and 	Kathy
Freeman 	were 	included 	in 	the 	unit CSEA sought 	to 	represent when
it was voluntarily recognized 	in 1976, 	it now maintains 	that
the 	positions 	are 	supervisory 	and 	inappropriately 	included 	in
the unit. 	Accordingly, 	CSEA argues 	that any actions 	taken by
Freeman 	and Meadows may be 	attributable 	to 	the 	employer 	and
constitute 	unlawful 	interference. 	As an 	alternative, 	the
Charging 	Party 	argues 	that 	supervisors 	are 	frequently 	included
in 	bargaining 	units, 	particularly 	those 	which 	are voluntarily
recognized. 	Citing 	numerous private 	sector 	authorities, 	the
Charging 	Party 	argues as 	follows:
[B]argaining 	unit 	supervisors 	are 	free 	to
engage 	in union activities, 	including 	the
circulation 	of 	decertification petitions,
etc., 	so long as there 	is no evidence 	that
the employer 	"encouraged, 	authorized, 	or
ratified 	the conduct" 	or 	that 	the 	employer
"acted 	in 	such a manner 	so 	as 	to 	lead
employees 	reasonably 	to believe" 	that 	the
supervisors 	were 	acting 	on behalf 	of
management.
Continuing 	in 	that vein, 	the Charging 	Party maintains 	that 	the
Superintendent 	ratified 	the 	conduct 	of Meadows 	and 	Freeman 	and
led 	employees 	to 	believe 	that Meadows 	and 	Freeman 	were 	acting
56

on behalf 	of management when he 	stated, 	during 	the 	course of
his 	speeches, 	that he 	knew the 	local 	leaders of SOSCA and he
knew 	their 	values 	and 	ideals. 	The Charging 	Party 	argues 	that
the 	Superintendent 	further 	ratified 	the conduct 	of Meadows 	and
Freeman when 	he 	introduced Meadows 	to 	the 	employees 	assembled
for 	his captive 	audience 	speech and yet 	failed 	to 	introduce 	the
CSEA 	leadership.
It 	is 	unnecessary 	to 	reach 	the 	issue 	raised 	by 	the Charging
Party and 	not yet 	considered 	by 	the 	PERB with 	respect 	to 	the
permissible 	scope 	of 	conduct 	for 	supervisory 	employees 	included
in a 	rank 	and 	file 	unit. 	That question need 	not 	be 	reached
because 	the 	Charging 	Party 	has 	failed 	to 	establish 	that 	either
Meadows 	or 	Freeman 	are 	supervisors 	as 	that 	term 	is 	defined 	in
the 	EERA. 	Section 	3540.l(m) 	defines 	a 	supervisory 	employee as
follows:
"Supervisory Employee" 	means 	any 	employee,
regardless of job description, 	having
authority 	in 	the 	interest 	of 	the 	employer 	to
hire, transfer, suspend, layoff, recall,
promote, discharge, assign, reward, or
discipline other employees, 	or 	the
responsibility 	to 	assign work 	to 	and direct
them or 	to adjust their grievances, 	or
effectively recommend such action, 	if, 	in
connection with 	the 	foregoing 	functions, 	the
exercise 	of 	such 	authority 	is 	not 	of 	a
merely 	routine or clerical nature, 	but
requires 	the 	use 	of 	independent 	judgment.
Since 	the 	definition 	of 	supervisor 	is written 	in 	the
disjunctive, 	the 	PERB has 	held 	that 	the performance 	of 	any one
of 	the 	enumerated 	actions 	or 	the 	effective power 	to 	recommend
57

such 	action 	is 	sufficient 	to make 	an 	employee 	a 	supervisor
within 	the meaning 	of 	the 	EERA. 	(Sweetwater 	Union High 	School
District 	(11/23/76) 	EERB Decision No. 	4 . ) 1 4 Notwithstanding
the well 	established 	interpretation of 	the meaning 	of
supervisory employee, 	Freeman and Meadows do not meet 	the
standards.
The 	evidence 	failed 	to 	establish 	that 	either 	Freeman 	or
Meadows 	perform any 	of 	the 	enumerated 	functions 	set 	forth 	in
the definition of 	supervisory 	employee. 	Both 	Freeman 	and
Meadows 	appear 	to 	have 	significant 	responsibilities 	overseeing
work, 	but not personnel.
Freeman 	is 	responsible 	for 	the warehouse. 	Jenna Davis, 	who
shares office 	space with Freeman, 	has completely different, 	not
necessarily 	subordinate 	responsibilities. 	Although 	she 	keeps
Freeman apprised 	of her 	comings 	and goings, 	her 	work 	is
dictated 	by 	the 	needs of 	the Office 	and 	the 	questions 	of 	the
auditors. 	The 	evidence did 	not establish that Freeman assigns
any work 	to Davis. 	Although 	the evidence did 	establish 	that
Freeman has 	input with 	respect 	to Davis' evaluation, 	the
evidence 	did 	not 	establish 	that 	she 	effectively 	recommends 	the
ultimate outcome of 	that evaluation process. 	In fact, 	Evron
Barber 	specifically 	noted 	that 	he 	and 	Freeman 	have 	disagreed
14When originally established, 	the 	PERB was 	entitled 	the
Educational Employment Relations Board 	(EERB).
58

and 	the 	clear 	inference was 	that 	his 	evaluation prevails.
Moreover, 	Barber 	indicated 	that he 	had opportunities 	to
independently 	evaluate 	the 	work 	of 	Davis 	and his 	testimony was
supported 	by 	that 	of 	Freeman who 	indicated 	that 	Davis 	is
frequently out 	of 	the office 	working 	independently 	at 	a 	school
site.
Similarly, 	the 	evidence does 	not 	establish 	that Freeman
supervises Rudy 	Laddaga. 	Laddaga 	and his 	assignments 	for 	each
day 	are 	determined 	by what materials come 	in and what materials
have to 	be distributed. 	From the 	testimony, 	it appears 	that
Freeman's 	relationship with 	the 	work 	orders 	for 	which Laddaga
is responsible, 	is merely clerical 	in nature. 	Finally, 	Barber
testified 	that 	he 	has 	frequent contacts 	with Laddaga 	and 	is 	in
a position 	to 	independently evaluate his 	job performance. 	In
short, 	there 	is 	no evidence 	that Freeman 	supervised 	either
Davis or 	Laddaga. 	At best, 	she 	is a senior employee who
supervises 	the warehouse operation, 	but not 	necessarily her
co-workers.
The 	evidence 	also 	failed 	to establish that Bob Meadows 	is a
supervisor. 	At best, 	he 	is a senior 	lead worker 	or 	a key
person 	to whom Randy 	Freeman may 	look 	for 	input, 	but Meadows
does 	not 	supervise personnel. 	As 	in the warehouse, 	the work of
the computer 	operators 	seems 	to 	be governed 	by work orders
generated elsewhere 	in the District. 	What work will 	be done,
by when, 	and by whom, 	is governed by priorities established by
59

someone 	other 	than Meadows. 	The 	evidence 	established 	that
Susan Yursik coordinates 	her 	work with Bob Meadows, 	but she
does not 	report 	to 	him. 	Although Freeman 	looks 	to Meadows 	for
input on Yursik's 	evaluation, 	Freeman conducts 	the 	evaluation
and 	testified 	that 	he 	is 	in a position 	to 	independently
evaluate 	her 	work. 	Although 	Freeman did 	not 	testify 	that 	he
had 	ever 	disagreed 	with Meadows 	about 	a preliminary 	evaluation
of 	Yursik, 	he 	had 	disagreed with 	similarly 	situated 	"key
people" 	in other 	sections of 	the data processing division. 	In
all 	instances, 	Freeman's judgment prevails.
In 	summary, 	the evidence 	regarding 	the duties and
responsibilities 	of 	Freeman 	and Meadows 	was quite 	sparse 	and 	it
is 	impossible 	to say whether 	or 	not, 	in fact, 	they perform the
duties 	and 	responsibilities 	of 	supervisory 	employees. 	The
question 	in this case 	is whether 	or 	not 	the Charging 	Party
established 	that 	they were 	supervisory 	employees. 	In Regents
of 	the University of California 	(3/8/83) 	PERB Decision No.
246b-H, 	the 	PERB 	stated 	that 	"the 	burden of proving 	an
exclusionary 	claim 	rests 	with 	the 	party 	asserting 	it. 	Absent
that 	burden being met, 	the employees 	in dispute are 	to be
included 	in 	the 	unit." 	Although 	the Charging 	Party does 	not
assert 	that Meadows 	and 	Freeman 	should 	be 	excluded 	from the
unit as a 	result of 	this proceeding, 	the undersigned 	sees no
reason why 	the 	burden of proof 	should 	be 	any different 	than 	in
a 	unit 	determination 	proceeding.
60

Essentially, 	the 	nature of 	the positions held 	by Freeman
and Meadows 	was described 	by 	the 	PERB 	in Regents 	of 	the
University of California, 	supra. 	In 	that case, 	the Board noted:
[E]mployees, despite titles, job
descriptions and 	even duties, 	may be
sufficiently 	invested 	with 	rank 	and 	file
interests 	to warrant 	their 	inclusion 	in 	the
bargaining 	unit. 	This will occur where
control 	is 	demonstrated 	only 	over 	work
processes 	as 	distinguished 	from personnel
policies 	and practices.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
Employees 	with 	control 	over 	work 	processes
are often called 	"lead" 	employees. 	These
employees 	may 	also 	perform 	some 	supervisory
personnel 	functions, 	although 	the bulk of
their 	duties 	are 	substantially 	similar 	to
those of 	their 	subordinates. 	Such employees
may also 	be 	included 	in 	the 	unit. 	Their
guidance 	to 	other 	employees 	is derived 	from
greater 	experience, 	technical expertise and
knowledge 	of 	the 	employer's missions 	and
tasks.
Based 	upon 	the 	law and 	the 	evidence presented, it 	is 	found 	that
the 	Charging 	Party 	failed 	to meet 	its 	burden of 	proof 	and
Freeman 	and Meadows 	are 	not 	supervisors.
D. 	Objections 	to 	the 	Election
Pursuant to 	the Board's 	regulations, 	codified 	at 	section
32738, 	of title 	8, 	part 	III of the California Administrative
Code, 	objections to elections will be entertained by 	PERB only
on 	the 	following grounds:
(1) 	The conduct complained of 	interfered
with 	the 	employees 	right 	to 	freely choose
their 	representative 	or
(2) 	Serious 	irregularity 	in the conduct of
the election.
61

In 	the 	instant proceeding, 	only 	the ground 	set 	forth 	in
subdivision 	(1) 	is 	relevant 	as there has been no 	allegation
that 	any 	irregularity occurred 	in 	the conduct 	of 	the 	election.
The Board's 	rule 	sets 	forth 	the circumstances 	under 	which
objections 	to 	elections will 	be 	entertained. 	One must 	look 	to
the Board's decisions 	to determine 	the circumstances under
which an election will be 	set 	aside.
It 	has 	already 	been determined 	that 	the 	Respondent
interfered 	with 	employee 	rights 	guaranteed 	by 	the 	EERA and
encouraged 	employees 	to 	support 	SOSCA rather 	than CSEA. 	The
question 	now presented, 	is whether 	that conduct 	also 	requires
setting 	aside 	the 	election. 	The precise question to 	be
determined 	is 	whether 	the 	Respondent's 	"conduct 	had 	a probable
impact on 	the 	employees 	vote 	so 	that 	the 	election 	should 	be 	set
aside." 	(Clovis Unified School District, 	supra, 	at 18.)
In the 	instant case, 	the evidence establishes 	that many
employees 	were 	disenchanted 	with 	CSEA and 	were 	opposed 	to
CSEA's 	attempts 	to 	negotiate 	a collective 	bargaining 	agreement
with 	the 	Respondent prior 	to 	the 	filing 	of 	the decertification
petition. 	Nevertheless, 	the 	PERB has repeatedly rejected
arguments made 	by 	school 	employers 	that proof 	of 	an 	actual
impact 	on employees 	votes 	is 	required 	to 	set aside 	an
election. 	In Grenada Elementary School District 	(6/29/84) 	PERB
Decision No. 	387, 	the Board, 	in considering whether an unfair
practice charge 	should 	block 	a decertification 	election, 	noted
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that 	a proper 	focus 	for 	inquiry 	in election cases 	is 	not 	to
investigate 	the 	reasons why 	a decertification petition was
filed, 	but 	rather 	to determine whether 	the 	"alleged 	unlawful
conduct would 	so affect 	the 	election process as 	to prevent 	the
employees 	from exercising 	free choice." 	(Id. 	at 	11.)
(Emphasis 	added.)
In determining whether, 	objectively, 	the Superintendent's
speeches 	would prevent 	the 	employees 	from exercising 	free
choice, 	PERB ordinarily applies a 	totality of conduct test.
(San Ramon Valley Unified School District, 	supra; 	Jefferson
Elementary School District 	(6/10/81) 	PERB Decision No. 	164.)
In the 	instant case, 	the entire conduct was 	the 	speeches of 	the
Superintendent. 	Nevertheless, 	it 	is found that those speeches
would 	tend 	to 	interfere 	with 	employees 	free choice 	in 	an
election.
The 	Superintendent clearly 	favored 	one 	employee
organization over 	another, 	he gave misleading 	and 	incorrect
information about 	the consequences of 	a CSEA victory, 	and he
threatened 	employees 	with 	a 	loss 	of 	benefits 	if 	CSEA were 	to
win the election. 	Essentially, 	employees were 	told 	that 	if
CSEA won, 	their 	fringe benefit package would be 	in 	jeopardy 	and
that 	barring 	a major 	catastrophe, 	a 	SOSCA victory would 	ensure
that 	their 	fringe 	benefits 	remained 	intact. 	Recognizing 	that
fringe benefits 	are of critical concern 	to employees, 	it must
be concluded 	that 	the Superintendent's 	speeches, 	interfered
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with 	the 	employees' 	opportunity 	to 	exercise 	their 	free 	choice
in the election held on March 	28, 	1984. 	Moreover, 	looking at
the 	totality 	of 	the 	speeches 	and 	the question 	and 	answer
sessions, 	it must 	be 	remembered 	that 	the Superintendent 	and his
colleagues did 	not merely 	threaten a 	loss of benefits. 	They
promised 	employees 	that 	if 	CSEA won 	the 	election 	they would
have 	to 	live under 	a 	rigid 	regime, 	they would have 	to 	endure
the consequences 	of 	hardline 	negotiations, 	they would 	lose
local control, 	and notwithstanding 	their wishes, 	they might be
subjected 	to 	an 	agency 	shop provision. 	These were 	not 	adverse
predictions on matters outside 	the 	employer's control, 	they
were 	threats 	which undoubtedly interfered 	with 	the 	employees'
free choice. 	Accordingly, 	CSEA's objections to 	the 	election
are 	sustained.
V. 	REMEDY
In LA-CE-1895, 	it 	is appropriate to order 	the Office to
cease 	and 	desist 	from taking 	actions 	which deny 	employees 	the
statutory 	right 	to 	engage 	in protected 	activity 	and 	to 	further
order 	the 	Office 	to cease 	and desist 	from actions which
threaten 	to 	interfere 	with 	employees 	solely 	because 	they 	seek
to 	engage 	in protected 	activity. 	Such an order 	is consistent
with 	section 	3541.5(c) 	of 	the 	Educational 	Employment Relations
Act which gives 	PERB:
. 	. 	. 	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
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not 	limited 	to 	the 	reinstatement 	of
employees with or without back pay, 	as will
effectuate 	the policies of 	this chapter.
The cease 	and 	desist 	order 	in 	this case 	is 	necessary 	to
ensure 	that 	employees will 	be 	guaranteed 	their 	statutory
rights. 	Moreover, 	the order 	is necessary to ensure 	that the
Office does not threaten, 	coerce, 	discriminate against or
interfere with employees 	in 	the exercise of 	statutorily
guaranteed 	rights.
It 	is 	also 	appropriate 	that 	the Office 	be 	required 	to post
a notice 	incorporating 	the 	terms of 	these orders. 	The Notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	Office
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 	Office 	has 	acted 	in
an unlawful manner 	and 	it 	is 	being 	required 	to cease 	and desist
from this 	activity. 	The 	notice 	effectuates 	the purposes of 	the
EERA 	that 	employees 	be 	informed 	of 	the 	resolution of 	the
controversy 	and will 	announce 	the Office's 	readiness 	to comply
with 	the 	ordered 	remedy. 	(See 	Placerville 	Union School
District 	(9/18/78) 	PERB Decision No. 	69.) 	Also, 	in Pandol and
Sons v. 	ALRB and UFW 	(1979) 	98 Cal.App.3d 580, 	587, 	the
California District 	Court 	of Appeal 	approved 	a posting
requirement. 	The U.S. 	Supreme Court approved a 	similar posting
requirement 	in NLRB v. 	Express Publishing Co. 	(1941) 	312 U.S.
426 	[8 LRRM 415].
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In Case No. 	LA-CE-1987, 	the Charging 	Party urges that in
addition 	to 	the 	standard cease 	and desist 	orders 	and posting
orders, 	the 	employer 	should 	be 	required 	to 	notify each
classified 	employee 	of 	the decisions 	rendered 	by 	the 	PERB.
Moreover, 	for 	LA-CE-1987 	and LA-D-143, 	the Charging 	Party seeks
an order 	invalidating 	the decertification petition 	in 	addition
to an order 	setting 	aside 	the election.
With 	respect 	to personal notification, 	merit 	is 	found 	in
the position of 	the Charging 	Party. 	The Superintendent, 	other
high 	ranking 	officials 	and 	the 	Superintendent's 	attorney were
present 	at 	the 	speeches complained of 	and 	found 	to 	be 	unfair
practices. 	Since attendance at 	the meetings was mandatory, 	and
since 	it has 	been 	found 	that 	it had a pervasive 	impact 	and a
probable 	impact on the 	exercise of 	free choice 	in the
decertification election, 	mere posting would not have a
comparable 	impact. 	Accordingly, 	personal notification of 	the
results 	of 	these 	two proceedings will be 	required. 	(See Santa
Monica Community College District, 	supra.)
Based upon all the evidence presented, 	however, 	it cannot
be 	found 	that 	the Charging 	Party 	is 	entitled 	to 	an order
invalidating 	the decertification petition; 	in the 	instant case,
such 	an order 	would 	not 	effectuate 	the purposes 	of 	the Act.
The 	Charging 	Party 	argues 	that 	such an order 	is 	necessary
because 	the 	Respondent contaminated 	the 	entire 	election process
by 	assisting 	in 	the 	formation of 	SOSCA and 	the circulation of
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the 	decertification proceeding. 	The Charging 	Party cites
Sperry Rand Corp. 	(1962) 	136 NLRB No. 	45 	[49 LRRM 1766] 	in
support of 	the 	remedy 	it 	seeks. 	In Sperry Rand, however, 	it
was 	found 	that 	the 	employer 	encouraged 	a 	supervisor 	to 	initiate
and circulate 	the decertification petition. 	The 	evidence 	in
the 	instant proceeding 	fails 	to 	support 	such a 	finding 	and, 	in
fact, 	this 	issue was not a part of 	the proceedings.
Accordingly, 	the 	remedy 	sought 	is 	inappropriate.
In summary, 	in Case No. 	LA-CE-1987, 	it is appropriate to
issue 	a cease 	and desist order, 	a posting 	order 	and 	to 	require
personal 	notification of each classified employee. 	It 	is also
appropriate 	in Case No. 	LA-D-143 to require personal
notification 	and 	to 	order 	that 	the 	election 	results 	be 	set
aside 	and 	a 	new election 	be conducted 	by 	the Regional 	Director
of 	the 	Los Angeles 	Regional Office 	of 	the 	Public 	Employment
Relations 	Board.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the entire 	record 	in these cases, 	it 	is found 	that the
Office 	of 	Kern County Superintendent 	of 	Schools 	violated
subsection 	3543.5(a) 	of 	the Educational Employment Relations
Act when 	its 	supervisor 	of Maintenance 	and Operations
participated in the circulation and promotion of 	a 	letter 	of
concern. 	It 	is 	also 	found 	that 	the 	Kern County Superintendent
of Schools violated 	subsections 	3543.5(a) 	and 	(d) 	of the
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Educational 	Employment 	Relations 	Act 	when 	the 	Superintendent
gave 	three 	speeches 	at meetings 	employees were 	required 	to
attend 	at 	which 	time 	the 	rights 	of 	employees 	were 	interfered
with 	and 	threatened 	and 	at which 	time 	employees 	were 	threatened
to 	join SOSCA rather 	than CSEA. 	It 	is 	further 	found 	that 	the
objections to the election of March 	28, 	1984, 	filed by the
California 	School 	Employees 	Association 	are 	sustained,
consistent with 	the 	findings 	and conclusions 	in 	this 	proposed
decision. 	Pursuant 	to subsection 	3541.5(c) 	of 	the Government
Code, 	it hereby 	is ORDERED that the Office of Kern County
Superintendent of 	Schools, 	its governing Board 	and 	its
representatives 	shall:
1. 	CEASE AND DESIST FROM:
A. 	Interfering with employee 	rights 	to 	form, 	join, 	and
participate 	in 	the 	activities 	of 	employee 	organizations 	of
their 	own choosing 	by 	interfering, 	restraining, 	or coercing
employees 	because 	of 	the 	exercise of 	rights 	guaranteed 	by 	the
Educational 	Employment 	Relations 	Act 	by 	openly promoting 	and
circulating 	anti-union 	literature.
B. 	Interfering 	with 	the 	right 	of 	employees 	to participate
in 	the 	protected 	activities 	of 	employee 	organizations 	by
threatening 	to withhold 	benefits 	if 	employees choose 	to 	engage
in such activities;
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C. 	Showing 	favoritism toward 	the 	Superintendent 	of
Schools 	Classified 	Association while 	a 	question 	concerning
representation 	is 	pending 	by 	supporting 	the 	activities 	of 	that
Association 	and 	by 	threatening 	to 	withhold 	benefits 	from
employees who 	support 	the 	incumbent 	and 	rival Association, 	the
California 	School 	Employees 	Association.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE EDUCATIONAL EMPLOYMENT RELATIONS
ACT:
A. 	Within 	ten 	(10) 	workdays of 	service of 	the 	final
decision 	in 	this matter 	post 	at 	all 	school 	sites 	and 	other 	work
locations 	where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the 	Notice 	attached 	hereto 	as Appendix A. 	The 	Notice
must 	be 	signed 	by 	an 	authorized 	agent 	of 	the 	District,
indicating 	that 	the 	District will comply with 	the 	terms 	of 	the
Order. 	Such posting 	shall 	be maintained 	for 	a period 	of 	thirty
(30) 	consecutive workdays. 	Reasonable steps 	shall 	be taken to
insure that the Notice is not reduced 	in size, 	altered, 	defaced
or 	covered 	by any 	other material.
B. 	Within 	ten 	(10) 	workdays of 	service of 	a 	final
decision 	in this matter, 	post 	at all 	school 	sites and all other
work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notices 	attached hereto as Appendices B
and C. 	These 	Notices must 	be 	signed 	by 	an 	authorized 	agent of
the Office, 	indicating 	that 	the Office will comply with 	the
terms of 	these Orders. 	Such posting 	shall 	be maintained 	for 	a
69

period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	insure 	that 	the 	Notices 	are 	not 	reduced 	in
size, 	altered, 	defaced or covered by any other material. 	In
addition, 	the Notices 	attached hereto 	as Appendices B and C
will 	be 	mailed 	to 	each classified 	employee 	employed 	by 	the
Office within 	ten 	(10) 	workdays of 	the date 	this order 	becomes
final.
IT IS FURTHER ORDERED that the 	results of 	the March 	28,
1984 	representation 	election 	shall 	be 	declared 	invalid 	and 	a
new election 	shall 	be 	conducted 	by 	the 	Los Angeles 	Regional
Director.
Upon 	issuance of 	a final decision, 	make written
notification 	of 	the 	actions 	taken 	to comply with 	these 	orders
to 	the 	Los Angeles 	Regional Director 	of 	the 	Public 	Employment
Relations Board 	in 	accordance with 	his/her 	instructions.
IT 	IS 	FURTHER ORDERED all other 	allegations 	of 	the charges
and 	complaints 	are 	hereby 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed Decision and Order 	shall
become final on February 20, 	1985, 	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
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supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the headquarters 	office 	in
Sacramento before 	the close of business 	(5:00 p.m.) 	on
February 	20 f 	1985, 	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, 	section 32300 and 32305.
Dated: 	January 	31, 	1985
Barbara E. Miller
Administrative Law Judge
71