Rancho Santiago Community College District * * * Modified by Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 14 and Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, pp. 21-23, as recognized in SunLine Transit Agency (2024) PERB Decision No. 2928-M, pp. 18-19 * * * (PERB 0602E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
SANTA ANA COLLEGE 	ORGANIZING
COMMITTEE, 	CFT/AFT/AFL-CIO, 	and
JOANNE MAYBURY-McKIM,
Charging 	Parties,
v.
RANCHO SANTIAGO COMMUNITY COLLEGE
DISTRICT,
Respondent.
)
)
)
)
) 	Case No. 	LA-CE-1643
PERB Decision No. 	602
December 30, 	1986
)
)
)
)
)
)
)
Appearances: 	Lawrence Rosenzweig, 	Attorney for 	Santa Ana College
Organizing Committee, 	CFT/AFT/AFL-CIO, 	and Joanne Maybury-McKim;
Parker and Covert by Spencer E. 	Covert, 	Jr., 	and Margaret A.
Chidester 	for 	Rancho 	Santiago Community College 	District.
Before Morgenstern, 	Burt and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by the 	Rancho 	Santiago Community College 	District 	(District) 	to
the proposed decision of 	an administrative 	law 	judge 	(ALJ)
finding that 	the District violated section 	3543.5(a) 	and 	(b) 	of
the 	Educational 	Employment 	Relations 	Act 	(EERA or Act)l by
1EERA 	is 	codified at 	Government 	Code 	section 	3540 et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein are
to 	the Government 	Code.
Section 3543.5 provides, 	in pertinent part, 	as 	follows:
It shall be 	unlawful 	for a public 	school
employer 	to:
____________ )
* * * Modified by Carpinteria Unified School District (2021) PERB Decision No.
2797, p. 14 and Mt. San Jacinto Community College District (2023) PERB Decision
No. 2865, pp. 21-23, as recognized in SunLine Transit Agency (2024) PERB Decision
No. 2928-M, pp. 18-19 * * *

disciplining 	Joanne 	Maybury-McKim 	for 	writing 	and/or 	publishing
certain articles 	in 	the 	newsletter 	of 	an 	employee
organization.2 For 	the 	reasons 	set 	forth below, 	we affirm the
ALJ's 	decision 	and 	order.
FACTS
Joanne McKim 	is 	a 	tenured 	instructor 	of history at 	Santa Ana
College 	(SAC), 	having taught 	there 	for over 12 years. 	She was a
founding member 	of 	the Organizing Committee of 	the 	Santa Ana
College/California 	Federation 	of 	Teachers/American 	Federation 	of
Teachers, 	AFL-CIO 	(Organizing Committee) 	in October 1981, 	and
served as 	its 	first president.
In the 1981-82 	school year, 	the Organizing Committee
published 	a newsletter 	entitled AFTer/THOUGHTS. 	Approximately
(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.
2N 2No exception is taken to that portion of the ALJ's
decision dismissing 	an alleged 	violation of 	section 	3543.5(d),
"domination or 	interference 	with 	the 	administration of 	an
employee organization," 	and a charge regarding 	the 	time, 	place
and manner of service of process 	of 	the June 	28, 	1982 Notice of
Unprofessional Conduct. 	Therefore, 	those matters are not before
us.
3 The 	Faculty Association of 	Rancho Santiago 	(FARSCCD) 	is
the 	exclusive 	representative of 	faculty 	in 	the 	District. 	McKim
is 	not a member 	of 	that 	organization.
22

500 	to 	700 copies 	of each 	issue 	were distributed 	to District
faculty. 	Though 	the newsletter 	was 	not 	distributed 	to the public
or students, 	students were able 	to get copies. 	McKim authored
most of the articles 	in these newsletters 	and, 	as president of
the Organizing 	Committee, 	she 	accepted responsibility 	for 	all 	of
the articles.
On June 28, 	1982, 	McKim was served with a notice of
unprofessional 	conduct pursuant 	to Education 	Code 	section
87734.4 The 	15-page 	notice 	from 	Superintendent 	J. 	William
Wenrich cited as 	"specific 	instances 	of 	unprofessional 	conduct"
19 separate passages 	in the May 11, 	May 20 and June 12 	issues of
AFTer/THOUGHTS, 	which 	the District 	characterized as 	"false public
accusations" of dishonesty, 	criminal activities, 	intimidation,
conspiracy, 	terrorization, 	nepotism, 	violations of constitutional
and civil 	rights, 	violations 	of 	District procedures 	and policies,
reprisal, 	coercion, 	libel, 	and mismanagement, 	all 	"made with
knowledge of 	their 	falsity," 	which are 	"damaging 	to the
reputations 	of 	staff 	and 	interfere 	with 	the 	effective 	operation
of 	the District."
On November 	11, 	1982, 	McKim received a letter of reprimand
which 	cited 	six 	additional 	phrases 	allegedly 	constituting
unprofessional 	conduct, 	which appeared 	in an October 	26, 	1982
AFTer/THOUGHTS.
4Education 	Code 	section 	87734 requires 	notice 	90 days 	prior
to 	the 	initiation of 	formal proceedings 	to divest 	a community
college 	faculty member 	of 	tenure.
33

McKim's 	fall 	1982 evaluation, 	completed on November 10, 	1982
by Dean Lee 	Layport, 	contained a 	satisfactory rating 	for
classroom presentation and a 	"needs 	improvement" 	rating 	for 	both
professional 	relations 	and other professional qualities, 	and
referred 	to 	the 	contents 	of 	the previous 	notice of 	unprofessional
conduct 	and 	letter 	of 	reprimand.
On December 8, 	1982, 	McKim received a Special 	Evaluation
performed by Dr. 	Roseann Cacciola. 	After briefly noting 	that
McKim's 	classroom performance 	was 	satisfactory, 	the 	evaluation
discussed 	at 	length 	the 	alleged 	impact 	of 	an article 	in 	the
October 	26, 	1982 	issue of AFTer/THOUGHTS. 	Referring again to
the notice of unprofessional 	conduct, 	the 	letter of reprimand,
and the previous 	evaluation, 	the 	special 	evaluation stated as
follows:
. 	. 	. 	Your unprofessional remarks and
statements 	have had 	serious 	detrimental
effect upon classroom, 	faculty, 	and the
administration.
We 	are pleased 	to see 	that 	this 	has 	apparently
ceased 	in December. 	We 	note 	that 	the AFT-ER
THOUGHTS, 	dated November 22, 	1982, 	contained
no unprofessional 	remarks. 	Pleased 	[sic] 	be
advised 	that 	you must 	continue 	to not 	make
any 	further 	remarks 	or 	statements 	that 	are
unprofessional.
No 	further 	disciplinary action 	was 	taken 	against 	McKim prior
to the hearing 	in this 	case.
At hearing, 	the District offered 	the testimony of Dr. 	Richard
Sneed and Dr. 	Neal 	Rogers 	to show the disruptive 	effect 	of
McKim's 	writings. 	Dr. 	Sneed 	testified 	that McKim was 	given 	the
44

notice 	of 	unprofessional 	conduct 	because 	she had made
. 	. 	. defamatory, 	malicious, 	insulting remarks
about her 	colleagues 	to the point 	that 	they
were complainants 	and, 	as 	well as 	students
who were 	disrupted 	and 	upset 	by her 	behavior.
He 	considered her 	conduct 	to be 	unprofessional 	because:
I believe 	that 	if 	an 	instructor 	attacks
colleagues 	in a defamatory way 	that 	the person
is 	not 	adequately respecting 	the 	rights 	of 	the
other persons 	to do his 	or her 	work. 	There 	is
absolutely no question 	in my mind because 	the
reactions 	that 	I 	received 	from 	faculty that
they were, 	in fact, 	hindered in, 	some were
hindered 	in their work, 	upset 	to the point of
tears. 	I've seen students, 	or 	rather received
testimony of 	students 	from Dean LaPorte 	[sic],
who were equally upset. 	I 	think 	this 	is
disruptive 	and 	unprofessional 	to 	that 	extent.
That 	is 	to say 	if you attack other people 	in
a way 	that 	casts 	doubt 	on 	their 	competency or
on 	their professionalism, 	and 	they 	in turn are
upset 	to the point 	that 	they do their 	work
with difficulty, 	I consider 	that
unprofessional.
In response 	to the question, 	"What operations of 	the 	District
has Ms. McKim disrupted?," Dr. 	Rogers stated:
She has 	cast 	a shadow upon other 	faculty, 	with
administration, 	that there 	is a conspiracy,
that there 	is a heavy-handedness, 	that there
is a plot, 	if you will, 	to control and keep
subservient 	certain 	components 	within 	this
college.
When pressed 	for 	specifics, 	he responded:
A. 	She has 	caused a great 	deal 	of 	turmoil
with 	—
Q. 	What does 	that mean?
A. 	That means people 	that 	are 	very upset,
very concerned 	that 	their 	name 	is 	being used
and not only in an unfavorable, 	but 	in an
untrue manner, 	that 	it has 	cast upon this
institution, 	including 	the 	superintendent 	and
5
5

top level 	administration, 	that we are a bunch
of buffoons, 	that we 	obviously don't know what
we're 	doing 	and 	we're 	using 	subtle 	trickery 	to
control 	and manipulate 	the 	staff. 	We 	think
that 	is 	detrimental 	to the 	reputation of 	this
institution and, 	from that standpoint, 	it is
disruptive.
The 	AFTer/THOUGHTS 	Articles
McKim testified 	that 	she wrote all 	of 	the May 11, 	1982 	issue
of AFTer/THOUGHTS which 	is 	directed 	at:
. . . 	a 	staff 	of 	teachers 	who have 	subtly,
slowly, 	and 	inexorably been 	stifled 	and 	scared
to do 	anything 	other 	than 	follow Wenrich's
partyline 	as 	channeled 	through dependent 	and
loyal 	faculty organizations 	such as 	the
Faculty Senate, 	FARSCCD and administrator
dominated 	department 	meetings 	and 	committee
assignments.
"The McKim Chronicles" 	are an 	example 	that 	"there ARE penalties
for 	faculty being 	independent 	in 	trying 	to 	improve 	the
educational 	environment 	at 	SAC."
"The 	'McKim Chronicles' 	- A Study 	in Professional Abuse and
Lawbreaking," 	describe 	the 	events 	leading 	up 	to 	imposition 	of 	a
"censorship order" 	on McKim as 	follows: 	Upon her 	return 	from a
one-year 	sabbatical 	in spring 1981, 	she 	investigated, 	discussed
and 	"orchestrated 	the protest 	movement" 	regarding an assault 	on
teacher Leon Strahan, 	which occurred 	in late April 	1981. 	In
June 	1981, 	she was 	issued a notice of 	unprofessional 	conduct
based 	on a 	"sudden and unexpected" 	evaluation by Dean Layport
which McKim characterized 	as 	"illegal" 	in violation of 	the
collective bargaining agreement, 	"repressive," 	and 	"analagous 	to
the gestapo's 	[role] 	in Nazi 	Germany."
66

According 	to McKim, 	the 	notice 	of 	unprofessional 	conduct 	was
served on her 	under 	"incredible 	circumstances" 	at 	8:30 p.m., 	and
the 	real 	reason 	for 	the notice was 	to 	"cover 	up" 	and prevent her
from discussing 	the 	"attempted murder" 	of 	Strahan and 	SAC's
"responsibility" 	and 	"complicity" 	in 	the attack 	"in 	the 	six
months 	or 	so 	it 	would 	take 	to deal 	with 	the 	District Attorney's
office 	and 	get 	some 	plea 	bargaining 	accomplished."
The article quotes 	from her June 	14, 	1981 written response
to the notice which, 	in part, 	accused the administration of
"carrying 	out 	questionable, 	perhaps 	occasionally nefarious
practices 	of 	mismanagement." 	She 	claimed 	that 	"student 	spies"
provided 	the 	information 	for 	which she was 	charged, 	and
characterized 	the process 	as 	"like 	being hauled 	away at 	midnight
by the Nazis 	or being 	set 	up by 	the 	KGB 	in 	the 	Soviet 	Union."
Until 	the 	90-day notice period 	expired 	in mid-December, 	she 	"was
scared 	to disclose 	anything 	about 	these 	censorship orders"
because 	she 	thought 	she 	"would be 	sent 	right 	away off 	to 	the
courts." 	She concluded:
The bottom 	line 	in this 	story 	. . . 	is 	the
existence 	of 	administrative policy to use 	fear
and 	intimidation to run Santa Ana College. 	If
you don't experience 	it, 	it 	is because you
see 	eye-to-eye 	on 	the 	way things 	should be
run. 	. . . 	If 	just one of 	us 	is pushed around,
mistreated, 	abused, 	and attacked, 	no one is
free to talk. 	. 	. 	.
The May 20, 	1982 	issue of AFTer/THOUGHTS continued 	the McKim
Chronicle 	and 	began 	with 	the 	following 	explanatory remarks:
7
7

In the previous AFT/er Thoughts, 	May 11,
AFT-SAC dealt 	with 	the 	issue 	of 	calculated
administrative 	frame-up 	to 	remove my tenure.
That 	is 	to say, 	the subject of abuse of
teacher 	rights 	at 	SAC was 	the 	focus 	of
discussions. 	AFT, 	in its effort to explore
issues 	of 	educational 	policy-making,
continues 	to 	invite professional 	teachers 	to
examine 	their 	professional 	responsibilities
and 	obligations 	with 	respect 	to 	the 	way they
are mistreated, 	intimidated, 	silenced, 	and if
need be, 	crushed!
McKim described 	the 	subject 	of 	Chronicle 	#3 	as:
. 	. 	. 	the methods of authoritarian
intervention 	that 	destroyed 	so-called 	faculty
autonomy 	in 	the Women's 	Studies 	Department,
leading 	to 	the destruction 	of 	the department,
the 	resignation of 	one member, 	the betrayal
of another, 	and the dispersal and
non-communication of 	the others.
She 	referred 	to events 	which occurred 	in December 	1979, 	accusing
management 	of 	trying 	to destroy the Women's 	Studies 	program
"chaired by anti-feminist 	Dean 	Donna 	Farmer," 	and 	"under 	the
domination of 	a male 	supremacist 	administration."
McKim complained 	of 	a 	reprimand 	which 	she 	received 	on
January 9, 	1980:
. 	. 	. 	they exact specific reprisals on a
teacher 	above 	and 	beyond 	legal 	jurisdiction
by outlawing communication 	that 	is private
two-party 	correspondence 	with 	other 	faculty,
when 	in 	fact 	it 	is 	within a teacher's
Constitutional 	right 	of 	First 	Amendment
speech 	to 	conduct private 	correspondence
without 	jeopardy of 	losing 	tenure.
She quoted 	from her 	response 	to 	the 	reprimand as 	follows:
To 	the contrary, 	Santa Ana College
indoctrinates 	its 	students 	and coerces 	its
faculty 	— 	usually 	through 	milder 	techniques
than 	I experienced, 	but 	in my case 	is held up
as 	an 	example 	to other 	would-be dissidents.
8

Only conformity to 	the 	suitable 	mainline
desired by the managers 	will 	be 	approved. 	No
serious alternatives, 	under existing
administrative 	fiat, 	will be permitted very
long.
McKim 	testified 	that 	she 	did 	not 	write 	an article 	entitled
"The Chief Negotiator and 	the 	Folly of 	the 	Packaged Deal" 	which
criticized 	the 	FARSCCD negotiating 	team as 	"a collective 	begging
team," 	its 	chief negotiator 	as 	having a 	"Sweetheart Arrangement"
with 	the 	administration, 	and another 	negotiator 	as 	having a
"vested 	interest" 	in the negotiations because of:
. 	. 	. 	the 	favor Layport gave him in hiring his
wife Georgia 	in 	the Women's 	Studies 	to take
over 	teaching Joanne 	McKim's 	feminism 	classes
while 	McKim was 	on her 	sabbatical?
The June 	1982 	issue 	of 	AFTer/THOUGHTS 	contained McKim
Chronicle 	#4 - 	"Wenrich, 	the Lawbreaker," which began as 	follows:.. .
The McKim Chronicles have brought 	to light 	in
the past 	month 	the protracted 	mismanagement 	of
Wenrich's 	administration 	with 	respect 	to
violating 	the 	First Amendment 	of 	the United
States' 	Constitution, 	interfering with
academic 	freedom under 	the 	FARSCCD contract,
and 	conducting 	managerial 	take-over 	of 	faculty
duties 	and 	responsibilities. 	Generally
speaking, 	administrators have shown how they
abuse 	educational policy, 	displaying contempt,
open and covert, 	for 	teachers 	and arrogant
indifference 	to 	the 	impact 	their 	intimidations
of 	faculty have 	on 	student 	learning and
student knowledge.
Now 	it 	is 	time 	to add a chapter 	on how they
broke 	the 	law by tearing 	up a 	sabbatical
contract, 	approved by the Board, 	signed,
sealed and delivered. 	Furthermore, 	they
breached 	this 	contract 	without 	any 	legal
basis, 	whatsoever! 	In litigation, 	they were
even 	forced 	to admit 	it.
9

The 	article 	discusses 	management's 	revocation 	of McKim's
sabbatical 	contract 	in Spring 	1980 because 	she had 	emergency
surgery, 	and her 	legal efforts 	to get 	the sabbatical 	restored.
McKim wrote:
These men are not human educators, 	but
vindictive 	sadists 	. . . . 	They 	took
advantage of me, 	and acted very
unprofessionally 	in a 	mean 	and 	cruel 	manner.
When 	they smelled 	the blood, 	they couldn't
restrain 	their 	ruthless 	impulses.
Taxpayers, 	students 	and 	faculty need to know
of 	the 	low character 	of 	men who are paid 	to
be 	"leaders" because of 	their 	so-called
"enlightened" position as 	administrators.
The reverse is true, 	as Wenrich, 	Sneed and
Layport 	fulfill 	none of 	these descriptions.
Opportunism and 	raw power 	motivate 	them. 	They
took 	a 	cheap 	shot 	on a 	teacher 	and punished
her because 	she had been a 	vocal 	critic 	of 	the
faculty. 	They saw the 	vulnerability and
attacked 	just 	after 	she 	was 	recovering 	from
anesthesia 	and 	remained 	weakened 	by 	the
devastating 	impact 	of 	the 	surgeon's 	knife.
That 	behavior 	is 	thoroughly dishonorable!
In the October 	26, 	1982 	issue of AFTer/THOUGHTS, 	McKim
authored 	an 	article 	entitled 	"Academic 	Freedom 	and 	Civil 	Rights
are the AFT Issues 	at 	SAC, 	not 	'Personal 	Goals.'" 	The article
describes 	AFT's 	goals 	as 	follows:
. 	. 	. What 	I have done is organize an
independent faculty voice, 	a union, 	that has
the power 	to speak 	the 	truth and 	resist
coercion by 	the administration. 	Consequently,-
AFT-SAC can reveal 	what 	is 	usually covered 	up
to serve 	the status quo: 	that 	it 	is SAC
administrative policy 	to harass 	faculty who
don't 	tow the party line.
Besides 	criticizing 	the 	FARSCCD 	two-year
contract 	as 	the 	sell-out 	contract 	the 	weakest
10
• 	• 	• 	• 	• 	• 	• 	• 	• 	•

in California, 	AFT-SAC has 	focused on the
ABSENCE 	OF ACADEMIC 	FREEDOM AT 	SANTA ANA
COLLEGE and 	the 	implementation of 	other 	very
serious 	ADMINISTRATIVE ABUSES 	OF ALL FACULTY
at SAC, 	not 	just AFT organizers.
The article 	then lists 	some 	13 	issues 	of concern, 	including:
"[f]alsifying 	teacher 	evaluation 	for 	political 	retaliation";
"[b]reach of 	sabbatical 	contract 	as 	reprisal 	for 	criticism of
administration"; 	"[i]nvasion 	of privacy"; 	"[u]sing nepotism
arrangements 	to 	replace 	activists 	on 	the 	faculty with
'feather-your-own-nest' types"; 	"[a]dministrative 	meddling 	to
break 	up 	'autonomous' 	faculty departments 	and 	foment 	friction
among 	faculty 	in a divide-and-conquer 	strategy"; 	and
"[p]romoting 	smear 	campaigns 	by making phony 	charges 	of
'unprofessional 	conduct' 	to silence 	critics." 	The article
concludes:
It 	IS part of SAC's 	administrative policy,
endorsed by the Board of 	Trustees, 	to harass
teachers 	who dissent. 	This 	they do most
effectively by operating 	silently, 	taking
critics 	away one-at-a-time 	in 	secret meetings.
After 	isolating 	the 	individual 	and 	scaring
him/her, 	they issue phony charges 	of
"unprofessionalism," 	thereby 	ruining 	their
personnel 	files. 	Next 	they publicly conduct
a personality smear 	to 	attempt 	to get
obedience. 	What 	they really prefer 	is
resignation, 	pure and simple. 	This 	is a
process 	that has 	happened 	to many 	teachers 	on
this 	campus. 	Perhaps you are next!
DISCUSSION
The 	District 	explicitly states 	that 	the sole 	reason 	for 	its
disciplinary 	actions 	against 	McKim 	were 	certain 	objectionable
statements published 	in AFTer/THOUGHTS. 	Thus, 	there 	is no
11

question as 	to the 	District's 	motivation.5 Rather, 	the 	issue
presented 	is 	whether 	these 	statements 	were protected by EERA.
In 	considering 	the 	limits 	of 	employee 	speech protected by
EERA, 	PERB has 	adopted 	the 	standard 	applied by 	the National
Labor 	Relations 	Board, 	consistent 	with 	that 	articulated by both
the 	California and 	United 	States 	Supreme 	Courts 	in First
Amendment 	cases.66 Preliminarily, 	the speech must be related
to matters 	of 	legitimate 	concern 	to the 	employees 	as 	employees
so as 	to come within 	the right 	to participate 	in 	the activities
of 	an 	employee organization 	for 	the purpose of 	representation on
matters 	of employer-employee relations. 	(Section 3543.) 	(Mt.
San Antonio Community College District, 	supra; 	cf. 	Pittsburg
5We 	disagree with 	the ALJ's 	finding 	that 	the 	District's
motivation 	is 	in dispute here, 	and 	that previous disciplinary
actions 	against McKim are 	relevant 	to a determination of
motivation. 	Inasmuch as 	the 	District does 	not 	claim that
McKim's 	discipline 	was 	based 	on 	any alleged prior 	misconduct
or, 	indeed, 	on any conduct other than her speech, 	we do not
find her 	disciplinary history pertinent 	to 	the 	issues 	raised by
the case.
6Pittsburg 	Unified School 	District 	(1978) 	EERB Decision
No. 	47 	(prior to January 1, 	1978, 	PERB was known as the
Educational Employment Relations Board); 	Richmond Unified
School 	District/Simi 	Valley Unified 	School 	District 	(1979) 	PERB
Decision No. 	99; Mt. 	San Antonio Community College District
(1982) 	PERB Decision No. 	224; 	Pickering v. 	Board of Education
(1968) 	391 U.S. 	563; Mt. 	Healthy City School District v. 	Doyle
(1977) 429 U.S. 	274 [97 S.Ct. 	568]; 	Givhan v. Western Line
Consolidated School District 	(1979) 	439 U.S. 	410 	[99 S.Ct.
693]; 	Linn v. 	United Plant Guard Workers of America 	(1966) 	38
U.S. 	53 [86 S.Ct. 	657]; Los Angeles Teachers Union v. Los
Angeles 	City Board of Education 	(1969) 	71 	Cal.2d 551 	[78
Cal.Rptr.723]; 	Gregory v. 	McDonnell Douglas Corporation 	(1976)
17 Cal.3d 596 [131 Cal.Rptr. 	641]; 	Postal Workers v. U. S.
Postal Service 	(D.C. 	Cir., 	1984) 	118 LRRM 3119, 	3126.
12
C

Unified School 	District, 	supra; 	State of 	California 	(Department
of Transportation) 	(1982) 	PERB Decision No. 	257-S.)
Here, 	McKim's writings 	are related 	to matters 	of 	legitimate
concern to employees 	as 	employees, 	including such subjects 	as
teacher safety, 	negotiations, 	leaves, 	the autonomy and
effectiveness 	of 	the 	exclusive 	representative 	and 	other 	employee
organizations, 	educational policy and academic 	freedom.
Speech which 	is 	related 	to employer-employee 	relations 	may
nonetheless 	lose 	its 	statutory protection where 	it 	is 	found 	to be
so "opprobrious, 	flagrant, 	insulting, 	defamatory, 	insurbordinate,
or 	fraught with malice" 	(Mt. 	San Antonio Community College
District, 	supra, 	p. 	6; 	Rio Hondo Community College District
(1982) 	PERB Decision No. 	260) 	as 	to cause 	"substantial disruption
of 	or 	material 	interference with school 	activities" 	(Richmond
Unified 	School 	District/Simi 	Valley Unified 	School 	District,
supra, 	citing Pickering, 	supra). 	In its exceptions, 	the District
argues 	that McKim's 	writings 	are of 	this 	character. 	We disagree.
While McKim's 	choice 	of 	language 	is 	frequently exaggerated
and overstated, 	we do not 	find 	it sufficiently flagrant,
opprobrious 	or malicious 	as 	to lose 	its protected status. 	The
District 	itself concedes 	that, 	in characterizing the writings 	as
defamatory, 	it 	is not using the word as 	a term of art. 	Rather,
it 	used 	the 	term to mean 	"a remark or 	comment 	or description
that 	takes 	away, 	unlawfully takes 	away the reputation of a
person and 	falsifies 	the person's 	activity." 	All of 	the
incidents 	referred to have 	some basis 	in 	fact. 	The articles
13

unmistakably express 	McKim's 	opinions 	regarding 	these 	incidents.
The 	underlying 	events 	were 	widely known 	at 	the 	college 	and 	are
explained 	in graphic detail 	in the 	articles, 	enabling 	the reader
to make his/her 	own 	judgment. 	Indeed, 	the sophisticated audience
of college 	instructors and administrators 	is 	quite capable of
drawing 	its 	own 	judgments 	about both 	the articles 	and events.
Though 	the 	District 	asserts 	that 	the 	articles had 	a
disruptive effect 	on 	its 	operations, 	it 	relies 	exclusively on the
conclusory testimony of 	its 	administration witnesses. 	It 	failed
to 	introduce 	the 	testimony of a 	single student or 	teacher, 	nor
did 	it 	submit 	any other 	evidence of 	actual 	disruption. 	Neither
does 	the 	District 	contend 	that McKim's 	writings 	seriously
interfered with 	the performance 	of her 	duties 	as 	an 	instructor.
For 	these reasons, 	we conclude 	that McKim's writings 	are
protected 	under 	EERA.
Inasmuch as 	the 	District 	admits 	that McKim's 	statements
formed 	the 	sole basis 	for 	its 	disciplinary action against her,
and having 	found these statements 	to be protected, 	it 	is 	clear
that 	the 	District 	disciplined McKim because 	of her 	exercise 	of
protected rights. 	A violation of section 3543.5(a) 	of 	EERA is
thereby 	established 	under 	Novato 	Unified 	School 	District 	(1982)
PERB Decision No. 	210.7 By this 	same conduct, 	the District
7While 	the 	ALJ based his 	finding 	of 	violation on 	Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89, 	we 	find
Novato, 	supra, 	provides 	the appropriate standard where an
employer 	not 	only 	interferes 	with 	the 	exercise 	of 	employee
14
J

also denied the Organizing 	Committee 	its 	rights, 	in violation of
section 3543.5(b).
REMEDY
In the proposed decision, 	the District was 	ordered 	to cease
and desist 	from 	its 	unlawful 	conduct; 	to 	"remove 	from all
District 	records 	and destroy" 	the notice of unprofessional
conduct and the 	letter of 	reprimand; 	to delete all 	references 	to
McKim's 	writings 	in her 	evaluations 	of November 	and December
1982; 	and to post a notice 	informing District 	employees 	of 	these
actions.
The District 	excepts, 	claiming 	that 	PERB has 	no 	jurisdiction
to order 	the 	rescission of 	a notice of 	unprofessional 	conduct.
While 	it 	concedes 	that 	PERB would have 	jurisdiction 	to order
reinstatement 	if 	McKim had 	actually been dismissed 	for
retaliatory purposes, 	it argues 	that 	PERB's 	jurisdiction 	"does
not 	supersede 	the 	District's 	exclusive right 	to determine when
the 	mandatory Education Code 	section 	87734 notice must 	be 	given."
The 	District's 	exception 	is 	lacking 	in merit. 	Having 	found
that 	the notice of 	unprofessional 	conduct 	was 	issued 	to McKim
because of her 	exercise of 	rights 	guaranteed by EERA, 	we 	find
rescission of 	this 	notice appropriate 	and well 	within PERB's
broad 	remedial 	authority
. 	. 	. 	to issue a decision and order directing
an 	offending party 	. . . 	to 	take 	such
rights, 	but 	takes 	adverse personnel 	action against an employee
because of 	the 	exercise of 	those rights.
15

affirmative 	action, 	including 	but 	not 	limited
to the 	reinstatement 	of 	employees 	with or
without back pay, 	as 	will effectuate the
policies of this 	chapter. 	(Section
3541.5(c).)
Rescission of 	the notice 	is 	consistent 	with well-established
Board precedent 	ordering 	letters 	of 	reprimand 	removed 	from
personnel 	files 	in situations 	similar 	to the 	instant 	case. 	Mt.
San Antonio Community College District, 	supra; 	Rio Hondo
Community College District, 	supra.
Finally, 	finding 	the 	record 	fully adequate 	to decide 	the
issues 	raised by this 	case, 	we deny the District's 	request 	for
oral argument.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the entire record 	in 	this 	case, 	and pursuant 	to Government
Code section 3541.5(c), 	it is hereby ORDERED that the Rancho
Santiago Community College 	District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against, 	and 	interfering with, 	employees
because 	of 	their 	exercise 	of 	rights 	guaranteed by 	the 	Educational
Employment 	Relations 	Act.
2. 	Denying 	to 	the 	Santa Ana 	College Organizing 	Committee,
CFT/AFT/AFL-CIO, 	rights guaranteed to it by the Act.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE
THE POLICIES 	OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT:
1. 	Remove 	from all District 	records 	and destroy the June 	28,
1982 notice of unprofessional 	conduct and 	the November 	8, 	1982
16

letter 	of 	reprimand 	issued 	to 	Instructor 	Joanne 	Maybury-McKim,
and 	delete 	all 	references 	to 	Instructor McKim's 	writings 	in her
evaluations 	dated 	November 	and 	December 	1982.
2. 	Within 	thirty-five 	(35) 	days 	following 	the date 	this
Decision 	is 	no longer 	subject 	to reconsideration, 	post at all
work 	locations 	where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the 	Notice 	attached 	as 	an Appendix hereto,
signed by an 	authorized agent of 	the 	employer. 	Such posting
shall 	be 	maintained 	for 	a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken 	to 	insure 	that 	this
Notice 	is 	not 	reduced 	in 	size, 	defaced, 	altered or 	covered by
any material.
3. 	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 	Burt 	joined 	in 	this 	Decision. 	Member 	Porter's 	dissent
begins on p. 	18.
. - -
17

Porter, 	Member, 	dissenting: 	I 	unequivocally disagree with
the 	majority's 	analysis 	and conclusion 	in 	this 	case 	and 	would
reverse 	the ALJ and dismiss 	the 	charge. 	The majority concludes
that, 	because McKim's 	conduct occurred 	in 	the 	context 	of 	a 	labor
organization's publication, 	it achieves 	a 	degree 	of protection
not 	otherwise 	available 	to 	similar 	conduct 	not 	so 	shielded. 	This
simplistic 	approach 	ignores 	all 	of 	the 	surrounding 	context 	in
-
which 	the 	District's 	discipline 	occurred 	and 	fails 	to 	grasp 	that
the 	District's 	discipline 	had 	nothing whatsoever 	to 	do 	with 	the
fact 	that 	McKim 	issued 	the 	organizational 	newsletter 	itself.
The 	fallacy of 	the 	majority's 	conclusion 	can 	only be 	fully
appreciated by a 	summary of 	events 	leading 	up 	to 	and 	surrounding
the 	District's 	discipline.
Factual 	Background
The 	record 	in 	this 	case portrays 	a 	community college
instructor 	who 	is 	an 	ardent 	and 	strident 	activist 	with 	regard 	to
"feminist 	education"; 	an 	instructor 	who 	is 	personally committed
to 	changing 	the 	women's 	studies 	and history programs 	and 	the
-
respective 	chairpersons, 	courses 	and program 	instructors 	at
Santa 	Ana 	Community 	College 	so as 	to 	conform with her 	views 	on
-
"feminist 	education"; 	and an 	instructor 	who appears 	to be 	totally
intolerant 	of 	anyone 	— 	including 	her 	faculty 	colleagues, 	the
chairperson 	of 	the Women's 	Studies 	Program, 	students 	and 	college
administrators 	— 	who 	she 	perceives 	is 	not 	acting, 	or 	has 	failed
to act, 	in 	full 	and complete 	support of, 	and 	in 	conformity with,
her 	views 	of 	the 	true 	feminist 	goals 	in 	education.
18

In 1979, 	McKim engaged 	in numerous vitriolic attacks, 	both
verbally and 	in writing, 	on her 	faculty colleagues, 	the Women's
Studies 	Program 	chair 	and 	college 	administrators 	castigating 	them
for 	their 	alleged 	incompetence 	in 	women's 	studies 	and 	feminist
activities 	and/or 	for 	alleged 	acts 	or 	omissions 	which 	she
believed 	were 	damaging 	to what 	she 	perceived 	the Women's 	Studies
Program 	and 	feminist 	education 	goals 	should be 	at 	Santa 	Ana
Community 	College.
Following 	complaints 	from 	faculty 	and 	program 	administrators
concerning McKim's 	unprofessional 	conduct, 	college 	administrators
met 	with 	McKim 	on 	several 	occasions 	in 	late 	1979 	and 	attempted 	to
counsel 	her 	concerning her 	professional 	responsibilities 	to her
colleagues, 	the 	college 	programs 	and program administrators.
McKim 	was 	admonished 	to 	refrain 	from 	unprofessional 	attacks 	on
her 	colleagues 	or 	on 	the 	college 	programs 	and 	administrators.
She 	indicated 	that 	she would 	stop 	such 	conduct but, 	shortly
thereafter, 	again 	engaged 	in 	similar 	unprofessional 	conduct.
When 	the 	1979 	counseling proved 	unsuccessful, 	the 	District
gave 	McKim 	a 	formal 	"Letter 	of 	Reprimand 	for 	Unprofessional
Conduct" 	in January 1980, 	at the end of 	the 	fall 	semester 	for
the 	1979-80 	academic year. 	After 	receiving 	this 	Letter 	of
Reprimand, 	McKim went 	on 	sabbatical 	leave 	for 	one 	calendar year
(1980), 	and 	returned 	to 	the 	college 	campus 	for 	the 	commencement
of 	the 	Spring 	semester 	(1981) 	of 	the 	1980-81 	academic year.
Upon her 	return 	to the 	campus 	in 	the 	Spring of 	1981, 	McKim
commenced 	anew her 	unprofessional 	attacks 	on her 	faculty
19

colleagues, 	the Women's 	Studies 	Program and 	courses, 	and 	the
college 	administrators 	for 	what 	she 	still 	perceived 	to be 	their
shortcomings 	with 	respect 	to 	feminist 	education 	and 	feminist
goals. 	But 	McKim 	did 	so 	in 	1981 	by way 	of her 	classroom 	—
before 	her 	students 	— 	making 	verbal 	and 	written 	(chalkboard)
attacks 	on 	other 	teachers, 	their courses 	and on 	college 	programs
and 	administrators 	during 	the 	various 	classes 	McKim was 	teaching,
This 	resulted 	in 	new 	complaints 	concerning her 	conduct 	from
faculty, 	students 	and administrators.
The 	District 	responded 	to McKim's 	classroom 	attacks 	on 	her
faculty colleagues, 	their 	courses, 	and the 	college programs 	and
administrators by serving on McKim, 	in June 	1981, 	a 	second
written 	reprimand, 	entitled 	"Notice 	of 	Unprofessional 	Conduct."
This 	is 	a 	statutory 	notice 	requirement 	mandated by Education
Code 	section 	87734 before 	the 	District 	can 	initiate 	dismissal
proceedings 	for 	unprofessional 	conduct.1 The purpose 	of 	the
1Education 	Code 	section 	87734 prescribes:
The 	governing board 	of 	any 	community 	college
district 	shall 	not act 	upon 	any charges 	of
unprofessional 	conduct 	or 	incompetency
unless 	during 	the 	preceding 	term 	or 	half
school 	year prior 	to 	the 	date 	of 	the 	filing
of 	the 	charge, 	and at 	least 	90 days prior 	to
the 	date of 	the 	filing, 	the board or 	its
authorized 	representative has 	given 	the
employee 	against 	whom 	the 	charge 	is 	filed,
written 	notice 	of 	the 	unprofessional 	conduct
or 	incompetency, 	specifying 	the 	nature
thereof 	with 	such 	specific 	instances 	of
behavior 	and 	with 	such 	particularity 	as 	to
furnish 	the 	employee 	an 	opportunity 	to
correct his 	faults 	and 	overcome 	the 	grounds
for such charge. 	. 	. 	.
20
,

87734 	notice 	to McKim was 	to put her 	on 	official 	notice 	of her
unprofessional 	conduct 	and 	afford her 	a 	period 	of 	time 	within
which 	she 	could 	correct her 	conduct 	and 	thereby 	avoid 	dismissal
proceedings.
Following 	the 	June 	1981 	Notice 	of 	Unprofessional 	Conduct 	and
through 	the 	remainder 	of 	1981 	— 	including 	the 	Fall 	semester 	of
the 	1981 	academic 	year 	— 	and 	into 	the 	first 	part 	of 	1982, 	McKim
did 	not 	engage 	in 	any 	further 	unprofessional 	attacks 	on her
-
colleagues, 	the college programs 	and courses, 	or the college
administrators. 	Accordingly, 	the 	District did not 	file 	formal
Education 	Code 	section 	87732 	dismissal 	charges 	for 	her 	Spring
1981 	unprofessional 	conduct.
In 	October 	1981, 	during 	the period of 	time 	in which McKim
would have been 	subject 	to 	formal 	Education 	Code 	section 	87732
dismissal 	proceedings 	if 	she had persisted 	in her 	unprofessional
conduct, 	McKim was 	instrumental 	in 	founding 	the 	"Organizing
Committee 	of 	Santa 	Ana 	College/California 	Federation 	of
Teachers/American 	Federation 	of 	Teachers/AFL-CIO" 	(Organizing
Committee) 	and 	served as 	the 	Organizing 	Committee's 	first
president.2
2The 	exclusive 	representative 	for 	teachers 	in 	the 	District
was 	and 	is 	the 	Faculty Association 	of 	the 	Rancho 	Santiago
Community College 	District 	(FARSCCD). 	The 	record 	in 	this 	case
shows 	FARSCCD as 	the 	exclusive 	representative, 	and we 	may 	take
official 	notice 	of 	PERB 	records 	that 	it 	remains 	so to this 	date.
We 	may also 	take 	official 	notice 	that 	PERB 	records 	show 	no
decertification 	petition 	or 	other 	challenge 	to 	FARSCCD during 	the
period of 	time 	involved 	in 	this 	case 	and up to 	the present 	date.
21
•

In 	1982, 	the Organizing Committee, 	under McKim's presidency,
began 	circulating a 	newsletter, 	"AFTer/THOUGHTS." 	The 	newsletter
dealt with various 	subjects, 	including 	"feminist politics," 	an
alleged 	absence 	of 	academic 	freedom 	at 	Santa 	Ana 	Community
College, 	criticisms 	of 	the 	collective bargaining 	negotiations
between 	the 	District 	and 	FARSCCD, 	and criticisms 	of 	FARSCCD. 	The
newsletter 	was 	distributed 	to 	the 	faculty 	and became 	available 	to
the 	students.
Commencing 	in May 1982, 	after 	a 	number 	of 	newsletters had
been 	published 	and 	circulated 	and 	after 	the 	statutory 	time 	period
of 	the 	June 	1981 	Notice 	of 	Unprofessional 	Conduct had 	expired,
McKim began 	authoring a 	series 	of 	articles 	in 	the 	newsletter
entitled 	"'The McKim 	Chronicles' 	- A Study 	in 	Professional 	Abuse
and 	Lawbreaking." 	In 	the 	"McKim 	Chronicles," 	McKim 	reiterated
and 	rehashed her 	1979 	and 	1981 	attacks 	on 	the 	competency 	and
commitment of her 	faculty colleagues, 	on 	the 	inadequacies 	of 	the
women's 	studies 	and history programs 	and 	courses, 	on 	"student
spies" 	and 	college 	administrators. 	McKim 	also decried 	the
District's 	attempts 	to counsel 	her 	and 	correct her 	unprofessional
conduct 	in 	1979, 	January 1980 and 1981, 	and wrote 	that 	there had
been 	an 	ongoing 	conspiracy by other 	faculty members 	and 	college
administrators 	to 	stifle her 	academic 	freedom.
The personal 	thrust 	of 	the 	"McKim 	Chronicles" 	may be
illustrated by 	the 	following 	excerpts 	from 	the 	"McKim 	Chronicles"
article 	in 	the 	May 11 	issue 	in which McKim was 	attacking 	the
first 	Notice 	of Unprofessional 	Conduct 	served on her 	in 	1981:
22

In 	this 	issue, 	the 	focus will be on another
case 	study 	of 	this 	problem 	of 	REPRESSION AT
SAC. 	This 	issue will 	deal 	with 	Part 	2 of
the 	"McKim 	Chronicles." 	The 	"McKim
Chronicles" 	are a 	four-part 	series 	aimed at
exploring 	the 	issues 	in 	the 	repression of
her 	rights 	and 	interests 	as 	an 	educator 	on
the 	SAC 	staff 	in 	the 	History 	Department
under 	the 	supervision 	of 	Dean 	Layport 	and
V.P. 	of Academic Affairs, 	Dr. 	Richard S.
Sneed.
THE 	"McKIM 	CHRONICLES" 	- A STUDY 	IN
PROFESSIONAL 	ABUSE 	AND 	LAWBREAKING!
The 	discussion 	in 	this 	issue 	continues 	the
expose 	of 	crimes 	and 	abuses 	I 	experienced 	as
a 	result 	of 	my 	critical 	opposition 	to
administrative policies. 	. 	. 	. 	Charge #5
accused me 	of making 	a 	statement 	that 	some
instructors 	in 	the Women's 	Studies 	Program
should 	not 	be 	teaching women's 	studies
because 	they are 	neither 	knowledgeable 	nor
qualified 	with 	enough 	experience.
Since 	no bona 	fide 	feminist 	program
functions 	without 	faculty working 	also 	in
grassroots campaigns, 	it 	is a deserving
observation 	that 	so many Women's 	Studies
faculty at 	SAC have 	never 	been 	involved 	in
this 	movement. 	Readers 	with memories 	about
my 	disclosure 	and 	criticism 	of 	the 	Women's
Week 	several 	weeks 	ago 	recall 	I 	said 	the
same 	thing 	in 	the AFT/er 	Thoughts. 	A year
ago 	it was 	grounds 	for 	dismissal 	to say
that. 	Now 	it's 	okay, 	because 	I am saying
these 	things 	under 	protection 	of 	a 	different
statute. 	Now I 	am protected by 	the Labor
Code 	of 	California 	and 	this 	information 	I
disseminate 	comes 	under 	the 	jurisdiction 	of
that 	law, 	not the Education Code. 	If 	they
try 	that 	fascist 	stuff 	with me 	this 	year,
they're 	going 	to 	run 	into 	an 	Unfair 	Labor
Practices 	suit. 	That's 	the 	difference 	a
union 	can make on your 	campus. 	Until 	the
AFT got 	started here, 	all 	of us were 	victims
of the 	silence, 	and some of us, 	such as Leon
and me, 	were 	the 	objects of 	"search and
destroy" missions.
23

Another 	point 	that 	is 	exceedingly 	important
to make 	is 	the 	fact 	that 	information
obtained 	to make 	the 	charges, 	such as 	the
examples 	I gave 	in Charge 	#2 and Charge 	#5,
were 	taken 	from 	student 	spies. 	Names 	of 	the
spies 	I can, 	and will, 	provide privately
upon 	request 	to 	interested 	faculty 	who might
have 	some 	grounds 	to 	suspect 	they're
presently 	being 	secretly 	observed 	and 	turned
in.
Although 	the 	"McKim 	Chronicles" 	are 	lengthy,
they 	are 	written 	to provide 	factual
counter-weight 	to 	the malicious 	gossip,
misrepresentations, 	lies 	and 	concealed
truths 	that prevail 	at 	SAC. 	The 	reader 	is
asked 	to 	evaluate 	this 	carefully 	and 	add
this 	data 	to 	the 	critical 	information
regarding 	the 	status 	of 	education 	and 	the
role 	of 	the professionalist 	at 	this
college. 	The 	next episode will 	discuss
events 	surrounding 	the 	first 	Letter 	of
Reprimand 	which 	I 	received 	January 	1980.
Joanne 	Maybury-McKim
Department 	of 	History
(Emphasis 	added.)
These 	renewed 	attacks 	by McKim 	on 	her 	faculty 	colleagues,
program chairs, 	college programs, 	students 	and college
administrators 	were 	distributed 	to 	the 	college 	faculty 	via 	their
college 	mailboxes 	and 	also became 	available 	to 	the 	student body.
Further 	complaints 	and 	concerns 	regarding 	McKim's 	attacks 	then
came 	to 	the 	District 	from 	faculty, 	program 	administrators 	and
students.
On June 	28, 	1982, 	the 	District gave McKim a 	second Notice of
Unprofessional 	Conduct. 	(Ed. 	Code 	sec. 	87734.) 	The 	second
notice 	referred 	to 	and 	included 	the previous 	1981 	Notice 	of
Unprofessional 	Conduct 	and 	the 	1980 Letter 	of 	Reprimand 	for
24

Unprofessional 	Conduct. 	At 	the beginning of 	the 	second 	notice,
the 	District 	set 	forth:
This 	Notice 	is 	given because 	certain
statements 	you have made 	in 	the
AFTer/THOUGHTS 	newsletter 	directed 	at 	your
fellow 	faculty members 	and 	administrators
were 	apparently made 	by you 	under 	the
mistaken 	impression 	that 	such 	statements
enjoy blanket 	immunity as 	a 	protected
activity merely because 	they 	are 	printed 	on
the 	AFT 	letterhead. 	Please be 	advised 	that
such 	is 	not 	the 	law.
Pursuant 	to 	the 	requirements 	of 	Education 	Code 	section 	87734,3
25
3
the 	District, 	as 	it had previously done when 	it 	gave McKim 	the
first 	Notice of Unprofessional 	Conduct 	in 	1981, 	set 	forth
specific 	statements 	in the May 11 	and 	20 and June 	12, 	1982 	issues
of AFTer/THOUGHTS, 	which 	the 	District 	asserted 	constituted
unprofessional 	conduct. 	The 	District 	also 	included, 	as 	it had
in 	the 	first 	notice, 	a 	copy of 	the 	District's 	"Statement 	of
Ethics 	- 	Professional 	Standards 	for 	Community 	College
Instructors," 	which 	McKim had 	agreed 	to abide by when 	she 	signed
her 	employment 	contracts 	with 	the 	District.4
3See 	footnote 	1.
4These 	professional 	standards 	prescribed 	in 	pertinent
parts 	that a 	Santa Ana 	Community 	College 	instructor has 	the
responsibility:
(1) 	with respect to students, 	to respect
each 	student, 	to protect 	the 	student 	from
unnecessary 	embarrassment 	or 	disparagement
and 	to maintain 	a 	relationship which
preserves 	confidentiality, 	to 	refrain 	from
discrimination 	against 	any 	student 	and 	to

The 	statements 	from 	the 	newsletter 	that 	the 	District
specified 	in 	the 	second 	notice 	included 	McKim's 	rehashed 	1979
and 	1981 	unprofessional 	attacks 	as 	well 	as 	new attacks 	concerning
her 	faculty colleagues, 	program chairs, 	"student 	spies,"
administrators, 	the 1980 feminist classes, 	the 	"failure" of
Women's 	Programs 	and 	Services 	chaired 	by 	"anti-feminist 	Dean
Donna 	Farmer," 	nepotism 	in Women's 	Studies appointments, 	an
attempt 	to deny her 	a 	sabbatical 	because 	"she had been 	a 	vocal
critic of 	the 	faculty," 	and 	the 	statement 	that 	the 	Notice 	of
Unprofessional 	Conduct 	served on her 	was 	a 	"frame-up" 	to 	force
her 	into 	silence 	concerning 	the 	cover-up by 	the 	college
administration 	of 	"the 	attempted murder" 	of 	another 	teacher.
On July 1, 	1982, 	McKim sent a 	letter 	to 	the 	District
expressing her 	position 	that 	the 	"Labor 	Code" 	had 	superseded 	or
deal 	objectively with 	topics 	that 	could be
offensive 	to some,
(2) 	with respect to the district, 	to
participate 	in 	the 	development 	of 	a 	climate
of 	trust 	and mutual 	respect 	through 	support
of 	district programs 	and policies, 	to abide
by 	the 	policies 	and procedures 	governing
instructor 	employment, 	and 	to promote a
feeling 	of 	cooperation 	by 	encouraging 	and/or
participating in 	college programs, 	and
(3) 	with 	respect 	to colleagues, 	to be open
minded, 	to 	respect his 	or her own
intellectual 	freedom 	and 	that 	of 	colleagues,
to encourage a 	climate 	of 	trust 	and mutual
support 	through 	willing 	interchange 	of 	ideas
and 	inter-disciplinary 	cooperation, 	and 	to
evidence 	respect 	for 	colleagues 	by
discouraging 	criticism 	of 	them.
26

repealed 	Education 	Code 	section 	87734. 	The 	District 	responded
to McKim 	to 	the 	effect 	that 	Education 	Code 	section 	87734 had 	not
been 	repealed or 	superseded by 	the 	Labor 	Code, 	EERA, 	or 	any
other 	provision 	of 	law.
On 	September 	23, 	1982, 	McKim filed this 	unfair practice
charge, 	alleging 	that 	the 	June 	1982 Notice of Unprofessional
Conduct 	to her 	was 	an 	act 	of 	reprisal 	for her 	"McKim Chronicles"
in AFTer/THOUGHTS 	"in which 	she 	outlined 	factual 	events 	and her
interpretation 	of 	the 	intent 	and motivation 	behind 	the 	events 	as
carried 	out by 	the 	College 	administration."
McKim 	then 	persisted 	in her 	unprofessional 	attacks 	both 	in
her AFTer/THOUGHTS 	articles 	and 	in her 	on-campus 	dealings 	with
faculty 	and 	students 	during 	October 	and 	November 	1982. 	These
new 	attacks 	included 	attacks 	before 	her 	students 	on her 	fellow
faculty members, 	the 	"worthlessness" 	of courses 	in 	the Women's
Studies 	Program 	except 	for her 	own 	courses, 	and 	charges 	that
certain 	college 	instructors 	were 	just 	"ploys" 	of 	the
administration 	to 	teach 	"non-feminist 	type 	courses" 	under 	the
guise 	of Women's 	Studies.
McKim's 	fresh 	attacks 	on her 	faculty colleagues, 	the Women's
Studies 	Program 	and 	the 	college 	administration 	interrupted 	the
regular 	proceedings 	of 	some 	classes 	and brought 	new 	complaints
about 	McKim's 	unprofessional 	conduct 	from 	other 	faculty 	and
students. 	The 	District 	responded 	to 	these 	new and 	continuing
attacks 	from McKim by 	serving her 	in 	November 	1982 	with 	a 	new
"Letter 	of 	Reprimand 	Regarding Your 	Unprofessional 	Conduct." 	In
27

December 	1982, 	McKim 	received an 	Evaluation 	Report 	which 	spoke 	to
her 	October 	and 	November 	unprofessional 	conduct 	but 	which 	noted
that, 	as 	of 	December 	1982, 	she had ceased making such attacks.
McKim 	thereafter 	amended her 	unfair 	practice 	charge 	to
include 	the 	November 	Letter 	of 	Reprimand 	and 	the 	December
Evaluation 	as 	alleged 	acts 	of 	retaliation by 	the 	District 	for
her 	exercise 	of 	a 	protected 	right 	under 	EERA to 	author 	articles
in 	an 	employee 	organization 	newsletter. 	McKim 	additionally
alleged 	that 	such 	actions 	by 	the 	District 	interfered 	with 	her
involvement 	with 	an 	employee 	organization.
The 	ALJ's 	Proposed 	Decision
Following a hearing on McKim's 	charges, 	this 	Board's ALJ
rendered 	a 	proposed 	decision 	in 	which he 	found 	that 	the 	District
had 	consistently 	acted 	to 	stop McKim's 	unprofessional 	conduct
whether 	it 	occurred 	in the 	classrooms, 	in memoranda 	addressed 	to
her 	faculty colleagues 	or 	to college 	administrators, 	or 	in 	the
newsletter 	articles 	and 	that, 	in 	connection 	therewith, 	McKim had
already 	received 	a 	number 	of 	negative 	personnel 	actions 	prior 	to
her 	first 	newsletter 	article. 	After 	viewing 	the 	witnesses 	and
hearing 	the 	evidence, 	the ALJ 	further 	found 	that 	there was
insufficient 	evidence 	to 	establish 	any 	retaliatory 	or
discriminatory motivation 	on 	the 	District's 	part 	or 	that 	the
motivating 	purpose 	behind 	the 	District's 	actions 	was 	the
cessation 	of McKim's 	"labor 	organizing." 	(Novato 	Unified 	School
District 	(1982) 	PERB Decision No. 	210.) 	However, 	the ALJ
concluded 	that 	the 	District's 	attempts 	to 	stop McKim's
28

unprofessional 	conduct5 interfered 	with 	McKim's 	protected 	right
to 	author 	and publish 	articles 	in 	an 	employee 	organization's
newsletter 	and 	that, 	on 	"balancing" 	any disruption 	or
interference 	in 	the 	school's 	operation 	with McKim's 	right 	to
write 	in 	the 	newsletter, 	the 	"equities" 	were with McKim and,
thus, 	there was 	an 	"interference" 	violation. 	(Carlsbad Unified
School 	District 	(1979) 	PERB Decision No. 	89.)
Discussion
The 	majority opinion 	rejects 	the ALJ's 	finding 	that 	the
evidence 	in 	this 	case 	does 	not 	establish 	any unlawful 	motivation
on 	the 	District's 	part 	as 	to any 	EERA 	section 	3543.5(a)
violation.6 	Premising as 	the 	sole 	reason 	for 	the 	District's	6
5While 	the 	ALJ 	correctly 	observed 	in 	his 	proposed 	decision
that 	whether 	McKim's 	writings 	constituted 	unprofessional 	conduct
under 	the 	Education 	Code 	was 	not before 	this 	Board, 	he 	also
concluded 	that:
All of this behavior 	(McKim's), 	although
offensive 	and 	"unprofessional" 	to many
polite, 	civilized and educated persons, 	is
well 	within 	the 	scope 	of 	acceptable 	and
time-proven 	behavior 	of 	a 	labor 	organizer.
The 	fact 	that 	the 	employees 	that 	are 	the
subject 	of 	such 	attempted 	organization 	are
well 	educated, 	but 	unaccustomed 	to 	such
tactics, 	is 	irrelevant 	to whether 	such
activity 	is 	protected under 	the 	Act.
In essence, 	the ALJ held, 	as would the majority, 	that, 	even 	if
McKim's 	behavior 	constituted 	unprofessional 	conduct 	for 	a
teacher, 	it 	nevertheless 	was 	"acceptable behavior" 	for 	a 	labor
organizer 	and, 	thus, 	protected by EERA without 	regard 	to 	the
professional 	standards 	of 	the 	Education 	Code.
6 EERA section 	3543.5 provides 	that 	it 	is 	unlawful 	for 	a
public 	school 	employer 	to:
29

disciplinary 	actions 	against 	McKim 	her 	"objectionable 	statements"
in 	the 	newsletters,2 the majority disagrees 	with 	the ALJ that
the 	District's 	previous 	and 	consistent 	disciplinary 	actions
against 	McKim, 	in 	response 	to 	similar 	unprofessional 	conduct by
her, 	are 	relevant 	or pertinent 	and 	flatly asserts 	that 	"there 	is
no question 	as 	to 	the 	District's 	motivation." 	The majority
concludes 	that 	"it 	is 	clear 	that 	the 	District 	disciplined McKim
because 	of her 	exercise 	of protected 	rights" 	and 	"a 	violation 	of
section 3543.5(a) of EERA is thereby established under Nova to
Unified 	School 	District 	(1982) 	PERB Decision No. 	210." 	(Majority
Opn., 	pp. 	11-12, 	14.) 	Having so simplistically disposed of 	the
critical 	motivation 	element, 	the majority 	states 	that 	the only
issue 	presented 	in 	this 	case 	is 	whether 	McKim's 	statements 	are
protected by EERA. 	Observing 	that 	"speech which 	is 	related 	to 	a
(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. 	(Emphasis
added.)
See 	Novato Unified 	School 	District, 	supra, 	as 	to the motivation
element.
7 The 	evidence 	in 	this 	case 	clearly establishes 	that 	the
reason, 	as opposed 	to the basis, 	for 	the 	District's 	Education
Code 	section 	87734 Notice 	of 	Unprofessional 	Conduct 	to McKim was
McKim's unprofessional 	conduct 	(Ed. 	Code 	sec. 	37732(a)) 	and 	not
that 	she 	was 	authoring 	statements 	in 	an 	employee 	organization
newsletter.
30
7

labor 	dispute"8 is 	protected by EERA unless 	it 	is 	so
"opprobrious, 	flagrant, 	insulting, 	defamatory, 	insubordinate, 	or
fraught 	with 	malice" 	as 	to 	cause 	"substantial 	disruption 	or
material 	interference 	with 	school 	activities," 	the majority 	then
finds 	that 	"McKim's 	choice 	of 	language" 	was 	not 	"sufficiently
flagrant, 	opprobrious 	or malicious 	as 	to 	lose 	its protected
status." 	(Majority Opn., 	pp. 	12-13.) 	Additionally, 	the majority
notes 	that 	the 	District's 	evidence 	of 	disruption 	consisted 	only
of 	the 	"conclusory 	testimony" 	of 	its 	administration 	witnesses,
and 	that 	the 	District 	"failed" 	to 	offer 	any additional 	testimony
from students or teachers.9
8 McKim's 	"Organizing 	Committee" 	was 	not 	engaged 	in 	a
"labor dispute" 	with 	the 	District, 	nor with 	the Women's 	Studies
Program, 	the 	faculty or 	the 	students. 	The exclusive employee
organization 	representing 	the 	teachers 	in 	their 	employment
relations 	and/or 	negotiations 	with 	the 	District 	was 	FARSCCD.
(See 	footnote 	2, 	supra.)
9It 	would 	be 	reasonable 	to 	infer 	that 	the 	District 	not
only 	saw 	no 	need 	to put 	in 	such 	additional 	testimony but 	also
that 	it would 	not want 	to embroil 	any students 	or 	teachers 	in
this 	nonacademic 	proceeding with McKim, 	considering McKim's 	past
attacks 	on 	teachers 	who 	opposed her 	or did 	not 	agree 	with her,
and 	considering 	also her 	statements 	that 	she 	was 	keeping a 	list
of 	"student 	spies" 	who helped 	the 	college 	administration 	and
that 	she 	would 	turn 	over 	the 	list 	of 	students 	to other 	teachers.
Furthermore, 	the 	District's 	responsibility 	to put 	on 	evidence 	as
to McKim's 	unprofessional 	conduct 	and 	the 	resultant effects, 	if
any, 	on the faculty, 	students, programs, 	courses and
administrators 	was 	a 	matter 	for 	the hearing under 	the 	Education
Code 	that 	was 	required 	if McKim 	failed 	to 	correct 	her
unprofessional 	conduct 	and 	the 	District 	proceeded 	with 	her
dismissal. 	(Ed. 	Code secs. 	87732, 	87734 et seq.; 	Saraceno v.
Foothill-De Anza 	Community 	College 	District 	(1982) 	127 	Cal.App.3d
850, 857, hg. den.)
31
9

While 	facially 	it might 	appear 	that 	the 	District had 	taken
disciplinary action 	against McKim 	for her 	union 	activities, 	in
that 	her 	unprofessional 	conduct 	involved 	certain 	statements 	she
made 	in her 	"McKim 	Chronicles" 	which 	she had placed 	in 	an
employee 	organization 	newsletter, 	the 	determinative 	issue 	in
this 	case 	is 	the 	lawfulness 	of 	the 	underlying 	reason or motive
of 	the 	District 	in 	taking 	the 	disciplinary actions. 	A public
school 	employer 	may 	take 	disciplinary 	action 	against 	a 	public
school 	employee 	for 	misconduct 	and 	the 	fact 	that 	the 	employee,
at 	the 	time 	of 	the misconduct, 	was 	also participating or 	engaging
in 	union 	activities 	does 	not 	insulate 	the 	employee 	from 	such
disciplinary 	action, 	provided 	the 	motivating 	reason 	for 	the
employer's 	action 	is 	the misconduct 	and 	not 	the 	employee's 	union
activity. 	(Novato Unified School 	District, 	supra; 	Moreland
Elementary School 	District 	(1982) 	PERB Decision No. 	227, 	pp. 	11,
15; 	The 	Regents 	of 	the University of 	California 	(U.C. 	San 	Diego)
(1983) 	PERB Decision No. 	299-H, pp. 	12-13, 	17; Regents of the
University of California 	(Berkeley) 	(1985) 	PERB Decision No.
534-H; 	California 	State University 	(San 	Francisco) 	(1986) 	PERB
Decision No. 	559-H, 	pp. 	4, 	7; 	California State University
(Sacramento) 	(1982) 	PERB Decision No. 	211-H, pp. 	16-17; 	State of
California 	(Department of Developmental 	Services) 	(1982) 	PERB
Decision No. 	228-S, pp. 	22-25; 	and see Sunnyside Nurseries, 	Inc.
v. ALRB 	(1979) 	93 Cal.App.3d 922, 	934-935, hg. den.; George
Arakelian Farms, 	Inc. 	v. ALRB 	(1980) 	111 Cal.App.3d 258, 	273-274,
hg. 	den.) 	As 	succinctly set 	forth 	in Sunnyside Nurseries, 	Inc.
32

v. 	ALRB, 	supra, 	in quoting with approval 	from NLRB v. 	Ace 	Comb
Company 	(8th Cir. 	1965) 	342 F.2d 841, 	847:
It has 	long been 	established 	that 	for 	the
purpose 	of 	determining whether 	or 	not 	a
discharge 	is 	discriminatory 	in 	an 	action
such as 	this, 	it 	is necessary that the 	true,
underlying 	reason 	for 	the 	discharge be
established. 	That 	is, 	the 	fact 	that a
lawful 	cause 	for discharge 	is 	available 	is
no defense 	where 	the 	employee 	is 	actually
discharged because 	of his 	Union 	activities.
A fortiori, 	if the discharge 	is actually
motivated by a 	lawful 	reason, 	the 	fact 	that
the 	employee 	is 	engaged 	in 	Union 	activities
at 	the 	time 	will 	not 	tie 	the 	employer's
hands 	and 	prevent him 	from 	the 	exercise 	of
his 	business 	judgment 	to 	discharge 	an
employee 	for cause. 	[Citations.] 	It must
be 	remembered 	that 	it 	is 	not 	the 	purpose of
the 	Act 	to 	give 	the 	Board 	any control
whatsoever 	over 	an 	employer's 	policies,
including his 	policies 	concerning 	tenure 	of
employment 	and 	that 	an 	employer 	may hire 	and
fire 	at will 	for 	any reason whatsoever, 	or
for 	no 	reason, 	so 	long as 	the motivation 	is
not 	violative of 	the Act." 	(Emphasis 	in
original.)
I agree with 	the ALJ, 	who viewed 	the witnesses, 	that 	the
evidence 	and 	record 	in 	this 	case 	does 	not 	show 	or 	establish 	any
unlawful 	motive 	on 	the 	District's part. 	The District made 	no
attempt 	to 	stop McKim's 	participation 	in 	or 	publishing of 	the
newsletter. 	Nor did 	the 	District 	attempt 	to 	stop or 	censure 	the
newsletter. 	The 	District 	did 	not 	remove 	the 	newsletter 	copies
from 	the 	faculty mailboxes. 	The newsletters' 	general 	contents
and 	their 	various 	articles 	and 	columns 	on 	such 	matters 	as
collective 	bargaining 	negotiations, 	critical 	commentary 	and
cartoons 	on 	the 	autonomy 	and 	effectiveness 	of 	the 	exclusive
employee organization 	representative 	(FARSCCD), 	etc., 	were never
33

the 	subject 	of 	any 	District 	action. 	It 	was 	only when McKim
renewed her 	previous 	unprofessional 	conduct by 	launching, 	within
the 	pages 	of 	the 	newsletter, 	her 	rehashed 	and 	renewed
unprofessional 	attacks 	on 	the Women's 	Studies 	Program, 	her
faculty 	colleagues, 	students 	and program 	administrators 	that 	the
District 	acted.
The 	District's 	motive 	or 	reason 	for 	issuing 	McKim her 	second
Education 	Code 	section 	87734 Notice 	of 	Unprofessional 	Conduct 	in
June 	1982, 	as 	well 	as 	the 	second Letter 	of 	Reprimand 	for
Unprofessional 	Conduct 	in 	November 	1982, 	and 	the 	adverse 	comments
in 	the 	December 	Evaluation, 	is 	overwhelmingly evident 	from 	the
record 	in 	this 	case. 	It was 	not 	to discipline McKim 	for her
exercise 	of 	a 	protected 	right 	under 	EERA to participate 	in 	and
publish an 	employee 	organization 	newsletter. 	Rather, 	the
District's 	motive 	and 	reason 	was 	to 	stop McKim's 	renewed
unprofessional 	conduct 	in her 	unprofessional 	attacks 	on 	the
Women's 	Studies Program, 	faculty colleagues, 	students, 	college
courses, 	program chairs 	and deans, 	and college administrators.
Teaching 	is 	a 	profession 	and 	teachers 	are 	professionals
whose 	employment 	eligibility 	and 	conduct 	are 	subject 	to 	various
statutory 	requirements 	and 	restrictions 	to which 	employees 	in
other professions, 	occupations and vocations are not subject.
- 10 10
1 0For
34
10
10For 	example, 	teaching 	credentials 	are 	required 	for
employment 	in 	the public 	schools, 	including community colleges.
(Ed. 	Code 	sec. 	87200 et seq.) 	Credentials may not be 	issued to
persons 	who have been 	convicted of 	certain 	offenses 	(Ed. 	Code
sec. 	87290) 	and 	are 	summarily 	revoked on 	the holder's 	conviction

Because 	of 	the 	importance 	of 	the 	public 	school 	system, 	the
Legislature 	has 	enacted 	an 	extensive 	statutory 	scheme 	which
includes 	specific 	qualifications 	and 	standards 	of 	conduct 	for
public 	school 	teachers, 	including 	community college 	instructors.
(Cal. 	Const., 	Art. 	IX; Ed. 	Code secs. 	87210 to 87864; Serrano v.
Priest 	(1971) 	5 Cal.3d 584, 	604-610; 	and see Turner v. 	Board of
Trustees, 	Calexico Unified 	School 	District 	(1976) 	16 Cal.3d 	818,
825; 	McGrath v. 	Burkhard 	(1955) 	131 	Cal.App.2d 367, 	377.)
Teachers, 	including community college 	instructors, 	must 	act
and 	conduct 	themselves 	in a professional 	manner 	in 	their 	dealings
with 	students, 	fellow 	teachers, 	instructional 	programs 	and 	school
administrators. 	A 	teacher 	who acts 	unprofessionally 	in 	such
matters 	is 	statutorily 	subject 	to 	dismissal 	from his 	or her
employment 	status 	with 	the 	employing 	school 	district, 	as 	well 	as
to credential 	revocation. 	(Ed. 	Code secs. 	87331, 	87732(a),
87734; 	Board of Education v. 	Swan 	(1953) 	41 	Cal.2d 	546, 	551-554;
Belvi 	v. 	Brisco & 	Board of 	Trustees 	of 	Rio Hondo 	Community
College District 	(1985) 	165 Cal.App.3d 812, 	816-817, 	hg. 	den.;
Board of 	Trustees, 	Compton Jr. 	College 	District 	v. 	Stubblefield
(1971) 	16 Cal.App.3d 820, 	824, 	hg. den.; 	Palo Verde Unified
of any of a wide 	range of offenses 	(Ed. 	Code sec. 	87334). 	A
credential 	to 	teach 	in 	the 	community colleges 	may also be
revoked 	for 	various 	noncriminal 	acts 	and/or 	conduct, 	including
unprofessional 	conduct. 	(Ed. 	Code 	sec. 	87331.)
Independent 	of 	any credential 	action, 	community college
instructors 	may be 	disciplined 	and/or 	dismissed 	from 	their
employment 	with 	a 	community 	college 	district 	for 	unprofessional
conduct. 	(Ed. Code secs. 	87732(a), 	87734.)
35

School 	District v. 	Hensey 	(1970) 	9 Cal.App.3d 967, 	970-971, 	hg.
den.; 	Board of Trustees 	of Mt. 	San Antonio Jr. 	College 	District
v. 	Hartman 	(1966) 	246 Cal.App.2d 756, 	763, 	hg. 	den.)
The 	enactment of EERA 	(Gov. 	Code 	secs. 	3540-3549.3) 	did not
repeal 	or 	invalidate 	the 	Education 	Code. 	EERA section 	3540, 	in
which 	the 	Legislature 	sets 	forth 	the 	purpose 	of 	EERA,
specifically prescribes 	that, 	"Nothing 	contained" 	in 	EERA 	" . . .
shall 	be 	deemed 	to 	supersede 	other 	provisions 	of 	the 	Education
Code 	and 	the 	rules 	and 	regulations 	of 	public 	school 	employers
which establish and regulate tenure 	. 	. 	. 	." 	The provisions 	of
EERA 	cannot 	and 	do 	not 	invalidate 	or 	supersede 	Education 	Code
sections 	dealing 	with 	the 	discipline 	and/or 	dismissal 	of 	teachers
for 	unprofessional 	conduct, 	such as 	sections 	87732(a) 	and 	87734
which 	prescribe 	the 	cause 	and procedures 	for 	such 	dismissals 	of
community 	college 	instructors 	from 	their 	employment 	status 	with
community 	college 	districts.11
This 	case 	involves 	a 	teacher 	— 	a 	community 	college
instructor 	(McKim). 	Community college 	instructors, 	including
McKim, 	have 	the 	responsibility and 	duty 	to 	act 	professionally 	in
11EERA 	section 	3543.2, 	dealing with 	the 	scope 	of
representation 	in 	collective bargaining, 	provides 	that
notwithstanding 	Education 	Code 	section 	44944 	(dealing 	with
disciplinary 	actions 	against 	teachers 	in 	the primary and
secondary 	schools), 	the parties 	may meet 	and negotiate 	over 	the
causes 	and 	procedures 	for 	disciplinary 	action 	other 	than
dismissal. 	No 	such 	exception 	or 	supersession 	provision 	exists
in 	EERA 	regarding 	nondismissal 	actions 	against 	community 	college
instructors, 	nor 	as 	to their 	dismissals 	which 	are 	governed by
Education 	Code 	sections 	87732 	and 	87734.
36

dealing with 	their 	students, 	their 	faculty colleagues, 	the
chairpersons 	of the 	college 	departments, 	the college
administrators, 	and 	the 	college's 	instructional 	programs 	and
courses 	of 	study. 	Community college 	instructors, 	including
McKim, 	are 	statutorily 	subject 	to 	dismissal 	from 	the 	employing
community college district 	if they act unprofessionally.12 12	12
(Ed. 	Code secs. 	87732(a), 	87734.) 	While the general
"unprofessional 	conduct" 	cause 	for dismissal, 	specified 	in
Education Code 	section 87732(a), 	is 	sufficient to apprise
community 	college 	instructors 	of 	the 	professionalism 	required 	of
them 	(Board of Education v. 	Swan, 	supra, 	41 	Cal.2d 546, 	552-554;
Palo Verde 	Unified 	School 	District v. 	Hensey, 	supra, 	9 Cal.App.3d
967, 	971, 	hg. den.; 	Johnson v. Taft School District 	(1937) 	19
Cal.App.2d 405, 	407-408, 	hg. 	den.), 	it 	is 	significant that, 	in
the 	case before 	us, 	McKim 	repeatedly 	signed 	contracts 	of
employment 	agreeing 	to abide 	by 	the 	District's 	"Statement 	of
Ethics 	- 	Professional 	Standards 	for 	Community 	College
Instructors." 	(See 	footnote 	4 above.)
McKim, 	herself, 	is well 	aware of 	the unprofessionalism of
her 	attacks 	in her 	"McKim Chronicles," 	but 	she harbors 	the
belief 	— 	now 	validated 	by 	the 	majority 	opinion 	— 	that 	she 	may
freely 	engage 	in 	unprofessional 	conduct 	without 	any 	fear 	of
12Independent 	of dismissal, 	unprofessional 	conduct by a
community college 	instructor 	also 	constitutes 	grounds 	for, 	and
may 	result 	in, 	revocation 	of the 	instructor's 	credential. 	(Ed.
Code 	sec. 	87731.)
37

discipline 	from 	the 	District 	so 	long as 	she 	does 	it 	within 	the
pages 	of 	an 	employee 	organization 	newsletter. 	Knowing 	full 	well
that 	she 	would be 	disciplined by 	the 	District 	if 	she 	again
engaged 	in 	unprofessional 	conduct, 	McKim 	clearly 	sought 	to
insulate 	herself 	from 	such 	discipline 	by 	making 	her
unprofessional 	attacks within 	the pages 	of 	the 	newsletter. 	This
is 	akin 	to 	the 	type 	of 	tactic 	firmly 	rejected by 	this 	Board 	in
Charter 	Oak 	Unified 	School 	District 	(1984) 	PERB 	Decision No. 	404,
p. 	5, 	where an employee engages 	in 	some 	type of protected
activity 	in 	order 	to assure herself 	of 	a 	hearing before 	this
Board 	on 	the 	theory 	that 	the 	employer 	is 	disciplining her 	because
of 	her 	protected 	activity.
After 	concluding 	that 	coincidence 	in 	timing, 	by 	itself,
between 	the 	exercise 	of 	a 	protected 	right 	and 	the 	dismissal 	of
the 	employee, 	is 	insufficient 	to prove unlawful 	motivation, 	the
Board 	stated:
. 	. 	. 	were this not so, 	any employee who
perceived 	that he 	or 	she 	might 	be 	in 	danger
of dismissal 	could, 	by the mere 	act of
filing a 	grievance, 	be 	assured of a hearing
before 	. 	. 	. this agency and, 	further, 	place
the 	legal 	burden 	of 	producing 	evidence 	on
the employer to prove 	. 	. 	. 	that the
discharge 	resulted 	from 	a 	legitimate
operational 	justification. 	Such 	a 	state 	of
affairs 	would be 	unwise 	and 	unnecessary.
Here, 	the 	majority has 	taken 	this 	one 	step 	further 	and given
teachers 	the 	right 	to 	engage 	in blatant 	unprofessionalism 	so
long 	as 	they do 	so 	in 	the 	context 	of what would otherwise be 	a
protected 	activity. 	Further, 	the majority has 	even 	deprived 	the
38

employer 	of 	the 	opportunity 	to 	demonstrate 	"legitimate
operational 	justification" 	by 	its 	requirement 	that 	the 	employer
needed 	to 	show 	actual 	disruption 	and 	the 	inference 	that 	the
District 	failed 	to do 	so 	in 	this 	case.
As 	dogmatically asserted by McKim, 	herself, 	in her 	"McKim
Chronicles:"
. 	. 	. 	Charge 	#5 accused me of making a
statement 	that 	some 	instructors 	in 	the
Women's 	Studies 	Program 	should 	not be
teaching 	women's 	studies 	because 	they 	are
neither 	knowledgeable 	nor 	qualified 	with
enough 	experience.
Since 	no bona 	fide 	feminist 	program
functions 	without 	faculty working 	also 	in
grassroots campaigns, 	it is a deserving
observation 	that 	so many Women's 	Studies
faculty at 	SAC have 	never 	been 	involved 	in
this 	movement. 	Readers 	with memories 	about
my disclosure 	and 	criticism 	of 	the 	Women's
Week 	several 	weeks 	ago 	recall 	I 	said 	the
same 	thing 	in 	the AFT/er 	Thoughts. 	A year
ago 	it was 	grounds 	for 	dismissal 	to 	say
that. 	Now its 	okay, 	because 	I am saying
these 	things 	under protection 	of 	a 	different
statute. 	Now 	I 	am protected by the 	Labor
Code 	of 	California 	and 	this 	information I
disseminate 	comes 	under 	the 	jurisdiction 	of
that 	law, 	not 	the 	Education Code. 	If 	they
try 	that 	fascist 	stuff 	with me 	this 	year,
they're 	going 	to 	run 	into 	an 	Unfair 	Labor
Practices 	suit. 	(Emphasis 	added.)
Likewise, 	after 	the 	District had 	served 	the 	second 	Education
Code 	section 	87734 Notice 	of 	Unprofessional 	Conduct 	on McKim 	in
June 	1982, 	McKim wrote 	to 	the 	District 	and 	expressed her 	position
that 	the 	"Labor 	Code" 	had 	superseded or 	repealed 	Education 	Code
section 	87734. 	When 	the 	District 	responded 	that 	Education 	Code
section 	87734 had 	not 	been 	repealed 	or 	superseded 	by 	the 	Labor
39

Code, 	EERA, 	or 	any other provision of 	law, 	McKim then 	filed this
unfair 	practice 	charge.
If 	the 	evidence 	in 	this 	case demonstrated 	that 	the 	District
had been 	unlawfully 	motivated 	in 	issuing 	the 	second 	Education
Code 	section 	87734 Notice 	of 	Unprofessional 	Conduct 	to McKim 	and
would 	not have 	issued 	it if_ McKim had 	renewed 	such 	unprofessional
attacks 	in anything other 	than 	the union 	newsletter, 	then, 	and
only 	then, 	could 	this 	Board have 	found 	an 	EERA violation 	and
have 	the 	authority 	to order 	the 	District 	not 	to proceed with 	the
disciplinary action. 	But 	there 	is 	simply no 	such 	evidence 	in
this 	case.
Finally, 	the ALJ, 	while 	rejecting a 	reprisal 	violation, 	did
find 	the 	District's 	discipline 	constituted 	interference. 	Since
the 	majority would 	find 	reprisal 	and, 	derivatively, 	interference,
it 	did 	not 	separately address 	the 	ALJ's 	discussion 	of
interference. 	However, 	I would 	reject 	the 	interference 	claim
for 	the 	following 	reason. 	The 	ALJ 	found 	a 	violation by
"balancing 	the 	equities" 	between McKim's 	right 	to publish 	a 	union
newspaper 	and 	the 	District's 	right 	to 	discipline a 	teacher 	for
unprofessional 	conduct.13 He 	found 	an 	interference 	violation
13AS 	to 	the majority's 	opinion 	that McKim's 	"speech" 	or
"choice of 	language" 	was 	not 	"sufficiently 	flagrant, 	opprobrious
or 	malicious," 	such 	a 	conclusion by the majority does 	not 	and
cannot 	constitute a 	finding or 	determination 	that McKim's 	renewed
unprofessional 	attacks 	in her 	"McKim 	Chronicles" 	against 	the
Women's 	Studies 	Program and 	courses, 	against her 	faculty
colleagues, 	against her 	students, 	and against 	the program chairs
and 	deans 	did 	not 	constitute 	unprofessional 	conduct by McKim 	in
violation 	of 	Education Code 	section 	87732(a). 	This 	Board may
40

under 	Carlsbad 	on 	the basis 	that he believed 	the 	"equities" 	were
in McKim's 	favor. 	Such an 	approach 	and 	result 	is 	simply wrong.
Under Carlsbad, 	where a 	District's 	action, 	although not
unlawfully motivated, 	interferes with, 	or 	tends 	to 	interfere 	in
some way with, 	employee 	rights 	under EERA, 	the 	issue 	is one of
whether 	the 	public 	school 	employer has 	a 	business 	or 	operational
justification 	for 	its 	action. 	Here, 	the 	District had
consistently 	taken 	disciplinary 	action 	against 	McKim 	when 	she
engaged 	in 	unprofessional 	conduct 	and 	took 	the 	new 	disciplinary
action 	against her 	when 	she 	again 	engaged 	in 	similar
unprofessional 	conduct 	in 	violation 	of 	Education 	Code 	section
87732(a). 	Where the District, 	with 	just cause, 	has 	taken
disciplinary 	action 	under 	the 	Education 	Code 	against 	a 	public
school 	employee, 	we 	may not 	"balance 	the 	equities" 	to override
and 	nullify 	the 	District's 	action. 	In Moreland 	Elementary
School 	District, 	supra, 	the Board admonished, 	at page 16:
To 	find 	that 	the harm 	inherent 	in 	the
discharge 	of 	a 	dishonest 	employee 	who
happens 	to be 	a 	union 	organizer 	outweighs
the 	employer's 	legitimate 	needs 	and
interests 	would 	make 	a 	mockery 	of 	Carlsbad's
not 	administer, 	enforce, 	override or adjudicate matters within
Education 	Code 	sections 	87732(a) 	and 	87734. 	As 	correctly
recognized 	by 	the 	ALJ 	in his 	proposed 	decision:
This 	decision 	contains 	no 	determination 	as
to whether 	Professor 	McKim's 	writings 	are
"unprofessional" 	as 	the 	term 	is 	used 	in
Education 	Code 	section 	87734. 	That question
is 	not before 	the 	Public 	Employment 	Relations
Board.
41

balancing 	principle 	and 	preclude 	employers
from 	ever 	disciplining 	union 	activists
irrespective of 	just 	cause.
So, 	too, 	in the present case, 	the employer's legitimate 	need and
interest 	in 	disciplining an 	employee 	who 	engages 	in
unprofessional 	conduct 	cannot 	be 	found 	to be 	outweighed 	merely
because 	the 	employee happens 	to be 	a 	union 	organizer. 	While
"balancing 	the 	equities" 	might be proper where 	the 	employer, 	for
operational 	or business 	reasons, 	has 	taken 	some 	type 	of
nondisciplinary 	action which 	nevertheless 	impacts 	on 	employee 	or
employee 	organization 	rights, 	I 	submit 	that 	this 	Board may not
engage 	in 	such 	balancing 	where 	the 	employer 	is 	taking 	lawful
disciplinary 	action.
As 	succinctly 	stated by 	the 	Supreme 	Court 	in 	Martori
Brothers 	Distributors 	v. 	Agricultural 	Labor 	Relations 	Board
(1981) 	29 Cal.3d 721, 	728-729:
The mere 	fact an employee 	is 	or was
participating 	in 	union 	activities 	does 	not
insulate him 	from 	discharge 	for 	misconduct
or 	give 	him 	immunity 	from 	routine 	employment
decisions.
I would 	reverse 	the 	ALJ's 	finding 	of 	an 	interference
violation 	and 	dismiss 	the 	complaint.
42

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	LA-CE-1643, 	Santa
Ana College Organizing Committee, 	CFT/AFT/AFL-C10, 	and Joanne
Maybury-McKim v. 	Rancho Santiago Community College District, 	in
which all parties had 	the right 	to participate, 	it has been 	found
that 	the 	District 	violated Government 	Code section 	3543.5(a) 	and
(b). 	As 	a result of this conduct, 	we have been ordered to post
this Notice and will abide by the 	following. 	We will:
A. 	CEASE AND DESIST FROM:
1. 	Discriminating against, 	and 	interfering with, 	employees
because 	of 	their 	exercise 	of 	rights 	guaranteed by 	the 	Educational
Employment 	Relations 	Act.
2. 	Denying 	to the 	Santa Ana College 	Organizing Committee,
CFT/AFT/AFL-CIO, 	rights 	guaranteed 	to 	it by the Act.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE
THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT:
Remove 	from all 	District 	records 	and destroy the June 	28,
1982 	notice of unprofessional 	conduct and the November 	8, 	1982
letter 	of 	reprimand 	issued 	to 	Instructor 	Joanne Maybury-McKim,
and delete all 	references 	to 	Instructor McKim's 	writings 	in her
evaluations 	dated November 	and 	December 	1982.
Dated: 	RANCHO 	SANTIAGO 	COMMUNITY COLLEGE 	DISTRICT
By_ (Authorized 	Agent)
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.