Los Angeles Unified School District (PERB 0659E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ISIS 	VILLAR AND LOS ANGELES 	CITY
AND 	COUNTY 	SCHOOL EMPLOYEES UNION,
LOCAL 	99, 	SERVICE 	EMPLOYEES
INTERNATIONAL UNION, 	AFL-CIO,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2243
PERB Decision No. 	659
March 16, 	1988
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Appearances; 	Geffner, 	Goldstein & 	Paule by Jeffrey Paule 	for
Isis 	Villar 	and 	Los 	Angeles 	City 	and 	County 	School 	Employees
Union, 	Local 99, 	Service Employees 	International Union, 	AFL-CIO;
O'Melveny & Myers by Virginia 	L. 	Hoyt 	for 	Los Angeles 	Unified
School 	District.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
CRAIB, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions by both parties,
the 	Los Angeles 	Unified 	School 	District 	(District) 	and 	Isis
Villar 	and Los 	Angeles 	City and 	County 	School 	Employees 	Union,
Local 99, 	SEIU, 	AFL-CIO 	(Local 99), 	to the attached proposed
decision of a PERB 	administrative 	law 	judge 	(ALJ). 	The ALJ
found 	that 	the District 	violated sections 	3543.5(a) 	and 	(b) 	of
the Educational Employment Relations Act 	(EERA or Act)1
1 The 	EERA 	is 	codified at Government 	Code 	section 3540, 	et
seq. 	Unless 	otherwise 	specified, 	all 	statutory references 	are
to the Government Code. 	Sections 3543.5(a) 	and 	(b), 	provide as
follows:
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by: 	(1) 	retaliating against 	Isis Villar 	for engaging 	in
protected 	activity by 	giving her 	a 	"meets 	performance
standards," 	rather 	than an 	"exceeds 	performance 	standards"
rating on her 	annual 	performance 	evaluation 	and, 	(2)
discouraging 	employees 	from 	contacting 	their 	union 	for
assistance 	through 	implied 	threats 	of 	adverse 	action. 	At 	the
conclusion 	of 	the hearing, 	Local 	99 	moved 	to amend 	the
complaint 	to 	conform 	to proof, 	asserting 	that Villar 	was
removed 	from her 	position 	as 	noontime 	aide 	director 	in
retaliation 	for 	protected 	activity 	and 	that 	Betty 	Ross 	also
received 	a 	reduced 	rating 	on her 	performance 	evaluation because
of her 	protected 	activity. 	The ALJ 	refused 	to 	allow 	either
amendment.2
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 organization rights
guaranteed 	to 	them by 	this 	chapter.
We have 	reviewed 	the 	entire 	record, 	including 	the 	proposed
decision, 	the parties' 	exceptions 	thereto and responses 	to 	the
exceptions, 	and, 	except as 	noted below, 	we affirm the proposed
decision 	and 	adopt 	it 	as 	the decision of 	the 	Board 	itself.
Specifically, 	we 	reverse 	that 	portion 	of 	the proposed 	decision
2The 	denial 	of 	the 	amendment 	regarding 	the 	evaluation 	of
Betty Ross was 	not excepted to; 	consequently, 	it 	is not before
us 	and we 	do not 	consider 	it here.
2	
"'

finding 	a 	violation based 	on Villar's 	performance 	evaluation
rating.
DISCUSSION
Local 	99's 	Exceptions
Local 	99 	contends 	that 	the ALJ 	erred by 	failing 	to 	grant
its 	proposed 	amendment 	concerning Villar's 	removal 	as 	noontime
aide 	director. 	This 	allegation was 	included 	in Local 	99's
original 	and 	amended 	unfair 	practice 	charges 	and 	was 	dismissed
by 	the 	PERB 	regional 	attorney who 	reviewed 	the 	charge.
Local 	99 	chose 	not 	to appeal 	the dismissal 	of 	this 	allegation
to 	the 	Board. 	At 	the 	outset of hearing, 	Local 	99 	assured 	the
ALJ 	that 	this 	allegation 	would 	not be 	pursued 	as 	an 	independent
violation, 	but 	that 	the matter 	would be 	covered 	as 	background
evidence 	relevant 	to 	the 	allegations 	contained 	in 	the 	complaint
issued by 	the 	regional 	attorney.
Local 	99 	argues 	on appeal 	that 	the 	amendment 	should be
granted 	irrespective 	of 	the 	failure 	to 	appeal 	its 	dismissal 	and
the 	assurances 	that 	the 	matter 	would be 	pursued 	only 	to 	provide
background 	evidence. 	Local 	99 	first points 	to 	the ALJ's
statement 	that 	the 	matter 	appeared 	to be 	fully 	litigated.
Next, 	Local 	99 	asserts 	that, 	while 	it had no basis 	to appeal
the partial 	dismissal 	at 	the time 	it was 	issued, 	evidence
provided 	at 	the hearing 	revealed 	for 	the 	first 	time 	facts
curing 	the 	deficiencies 	of 	the 	unfair 	practice 	charge. 	This
"newly-discovered 	evidence" 	concerned 	Coldwater 	Canyon
Elementary 	School 	Principal 	Dr. 	Pamela Worden's 	"policy of
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4
prohibiting 	employees 	from 	exercising 	their 	right 	to 	contact
the 	Union 	for 	assistance 	in 	employment-related matters."
As 	noted by 	the ALJ 	and by both parties, 	a 	critical
requirement 	for 	the 	consideration 	of 	Unalleged 	violations 	is
that 	the 	matter be 	fully 	litigated. 	Santa 	Clara 	Unified 	School
District 	(1979) 	PERB Decision No. 	104; 	see also, 	Rivcom
Corporation 	v. 	Agricultural 	Labor 	Relations 	Board 	(1983)
34 Cal.3d 	743. 	At 	the outset, 	we disagree with Local 	99's
assertion 	that 	the ALJ 	concluded 	that 	the 	matter 	was 	fully
litigated. 	Although 	the ALJ 	stated 	that 	it 	"appeared" 	that 	the
matter 	was 	fully 	litigated 	and 	that 	a 	violation had been
established, 	she went 	on 	to state 	(as 	the 	reason 	for denying
the 	amendment) 	that 	the 	District may well have proceeded
differently 	absent 	Local 	99's 	specific 	denial 	that 	the 	issue
would be pursued as 	an 	independent violation. 	Thus, 	the ALJ
did 	not 	conclude 	that 	the 	matter 	had been 	fully 	litigated. 	We
agree 	that 	the 	District 	may have been 	prejudiced by Local 	99's
specific 	denial 	that 	the 	matter 	would be 	the basis 	for 	an
independent violation.3
w
3In 	addition, 	we 	find dubious 	Local 	99's 	claim 	that
evidence 	revealed 	at 	the hearing was 	not 	previously 	available.
The 	evidence 	concerning Worden's 	alleged 	aversion 	to 	employees
contacting 	their 	union 	came 	chiefly 	from 	the 	testimony 	of
Charging 	Party 	Isis 	Villar 	and 	Local 	99 	Representative 	Sally
Ramirez 	and was based 	on 	events 	occurring prior 	to 	the 	filing
of 	the 	charge.
3
4

The 	District's 	Exceptions
The 	District 	contends 	that 	the 	evidence 	fails 	to 	support
the ALJ's 	credibility determinations 	and 	that, 	as a whole, 	the
record 	does 	not 	support 	the 	conclusion 	that Villar's 	evaluation
was 	affected by her 	exercise 	of 	protected 	activity. 	The
District 	also claims 	that, 	even 	if 	the evidence 	is 	sufficient
to 	sustain 	a 	finding 	of 	a 	nexus between 	the 	protected 	activity
and 	the 	evaluation, 	there 	is 	no evidence 	to support 	the
conclusion 	that 	Villar 	would have been 	treated 	differently
absent her 	protected 	activity. 	The 	District 	also 	takes 	issue
with 	the 	ALJ's 	finding 	that 	the 	District 	interfered 	with Local
99's 	rights 	and 	with 	the ALJ's 	proposed 	order 	to 	the 	extent 	the
order 	requires 	a notice posted at 	all 	schools 	in 	the 	District.
Since 	the 	incident 	in question occurred 	at 	the 	Coldwater 	Canyon
Elementary School, 	it 	is 	the 	District's 	opinion that 	the
notices 	should be posted 	only 	at 	that 	school,
a. 	Villar's 	Performance 	Evaluation
Once 	a 	charging party has 	made 	a prima 	facie 	showing
sufficient 	to 	support 	the 	inference 	that 	the 	exercise 	of 	rights
granted by 	the 	EERA was 	a motivating 	factor 	in 	the 	action
complained 	of, 	the 	respondent 	is 	then given 	the 	opportunity to
show 	that 	its 	action would have been 	the 	same 	regardless 	of 	the
exercise 	of 	protected 	rights. 	See 	Novato 	Unified 	School
District 	(1982) 	PERB Decision No. 	210. 	We 	find merit 	in the
District's 	contention 	that 	the weight 	of 	the 	evidence
demonstrates 	that 	(even 	assuming 	the presence 	of 	unlawful
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motive) 	Villar's 	evaluation would have been 	the 	same 	in 	the
absence 	of 	protected 	activity.
The 	crux 	of 	the 	adverse 	action 	complained 	of 	is 	that 	Villar
received 	an 	evaluation 	for 	the 	1984-1985 	school 	year 	which 	gave
her 	an overall 	"meets 	standards" 	rating as 	opposed 	to 	the
"exceeds 	standards" 	rating 	she had 	received 	in prior years.
However, 	the 	rating given Villar by Worden 	is 	the 	same 	as 	that
recommended by 	Villar's 	classroom 	teacher, 	Burton Govenar. 	The
recommendations 	that 	Worden 	received 	from 	Govenar 	gave 	Villar
an 	"exceeds 	standards" 	rating 	in one 	category, 	"quality of
work," 	and a 	"meets 	standards" 	rating in all others.4A
Worden's 	evaluation 	did 	not 	diverge 	from 	those
recommendations. 	Further, 	of 	the 	twelve evaluations of aides
for 	the 	1984-1985 	school 	year 	admitted 	into evidence, 	six
contained 	an overall 	rating of 	"meets 	standards" 	and 	six
contained an 	"exceeds 	standards" 	rating. 	Four of 	the 	six 	aides
with 	overall 	"exceeds 	standards" 	ratings 	were given an 	"exceeds
standards" 	rating 	in 	all 	categories by 	their 	classroom
teachers. 	Of 	the 	six 	aides 	who received 	overall 	"meets
4The 	form 	onto 	which 	Governar's 	recommendations 	were
typed 	prior 	to Worden's 	review 	differed 	from 	the 	form 	Govenar
actually 	filled 	out 	in one 	respect. 	On Govenar's handwritten
form, 	"quality" 	and 	"quantity" 	of work were 	combined 	in one
category 	and he 	gave 	Villar 	an 	"exceeds 	standards" 	rating. 	The
form 	this 	was 	transferred 	to 	separated 	"quality" 	and 	"quantity"
into 	two 	separate 	categories. 	Apparently due 	to a 	clerical
error, 	the 	combined 	rating was 	transferred 	as 	an 	"exceeds
standards" 	for 	"quality of work" 	and a 	"meets 	standards" 	for
"quantity of work." 	In any case, 	it was 	the 	typed 	form which
was 	reviewed by Worden.
6
4
6

standards" 	ratings, 	all but Villar 	received more 	than one
"exceeds 	standards" 	rating 	from 	their 	classroom 	teachers.
Given 	the 	evidence noted above, 	we 	are unable 	to 	conclude
that, 	even 	if Worden harbored animus 	toward Villar, 	such animus
affected 	Villar's 	evaluation. 	In order 	to 	find 	a 	violation 	we
would have 	to 	conclude 	that 	Govenar 	and Worden 	acted 	in 	concert
to 	discriminatorily 	rate 	Villar below 	the 	level 	she 	deserved.
Contrary 	to 	the ALJ's 	speculation 	that 	Govenar's 	evaluation may
have been 	tainted by 	the 	same 	non-job-related 	factors 	which
influenced Worden, 	we 	find no 	evidence 	in 	the 	record 	to 	support
an 	inference 	that 	Govenar 	was 	unlawfully motivated 	in providing
his 	recommendations. 	Indeed, 	Govenar 	testified 	that Villar's
performance 	had 	deteriorated 	somewhat 	from 	the 	previous 	year
and 	there 	was 	no 	evidence 	presented 	concerning 	Govenar's
knowledge of, 	views 	of or 	reactions 	to Villar's 	protected
activities.
b. 	Worden's 	Comments
Citing 	testimony 	favoring 	its 	position, 	the 	District
maintains 	that 	the 	evidence 	in 	the 	record 	does 	not 	support 	the
conclusion that 	its 	agent, 	Pamela Worden, 	made statements 	that
in 	any way 	interfered 	with Local 	99's 	statutory 	organizational
rights. 	While we 	affirm 	the 	finding 	that 	the 	District
unlawfully 	discouraged 	(through 	implied 	threats) 	the bilingual
education 	aides 	from 	seeking 	the 	assistance 	of 	Local 	99, 	given
the ALJ's 	sparse 	analysis, 	we 	find 	that 	some explication 	is
required.
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First, 	we 	must 	emphasize 	that 	credibility determinations
play a 	vital 	role 	in 	the 	consideration 	of 	this 	allegation.
While 	we 	are 	free 	to 	consider 	the 	entire 	record 	and 	draw 	our
own 	conclusions 	from 	the 	evidence presented, 	we will 	afford
deference 	to 	an ALJ's 	findings 	of 	fact 	which 	incorporate
credibility 	determinations. 	Santa 	Clara 	Unified 	School
District 	(1979) 	PERB Decision No. 	104. 	This 	appears 	to us 	to
be 	a 	classic 	instance where 	deference 	is 	appropriate. 	Here,
Isis 	Villar 	and 	Betty 	Ross 	testified 	that 	Worden 	made 	comments
at 	various 	meetings 	of 	the bilingual 	education aides 	which 	are
alleged 	to 	constitute 	interference 	with 	statutory
organizational 	rights. 	The 	District's witnesses, 	including
Worden 	and Virginia 	Goddard, 	denied 	the 	accuracy 	of Villar's
and 	Ross' 	testimony 	regarding 	the 	manner 	in which Worden's
statements 	were made.
The 	record 	presents 	two 	dramatically 	different 	versions 	of
Worden's 	demeanor 	at 	the 	time 	of her 	statements. 	The ALJ
specifically 	credited 	the 	testimony 	of Villar, 	Ross 	and 	Local
99 	Representative 	Sally 	Ramirez 	and 	discredited 	the 	version
offered by 	the 	District's 	witnesses. 	UT	
5 	The 	transcript 	itself
provides us 	little, 	if any, 	basis upon which to depart 	from
this 	conclusion. 	Thus, 	we adopt 	the ALJ's 	credibility
determinations based upon her 	observation of 	the 	witnesses'
5Contrary 	to 	the 	District's 	assertions, 	the ALJ did
provide 	rationale 	for her 	credibility determinations, 	including
her 	observations 	concerning 	the witnesses' 	demeanor.
8

demeanor 	and 	appearance.6 We 	now 	examine 	the 	credited
testimony 	to determine 	if 	an unfair 	practice was 	committed.
In 	an 	unfair 	practice 	case 	involving 	an 	allegation of
interference, 	a violation will be 	found where 	the 	employer's
acts 	interfere 	or 	tend 	to 	interfere 	with 	the 	exercise 	of
protected 	rights 	and 	the 	employer 	is 	unable 	to 	justify 	the
actions 	by proving 	operational 	necessity.7 Carlsbad 	Unified
School 	District 	(1979) 	PERB Decision No. 	89. 	See also, 	Novato
Unified School 	District 	(1982) 	PERB Decision No. 	210.
Statements 	made by an 	employer 	are 	to be 	viewed 	in 	their
overall 	context 	(i.e., 	in light 	of 	surrounding circumstances)
to 	determine 	if 	they have 	a 	coercive meaning. 	Sacramento City
Unified 	School 	District 	(1985) 	PERB Decision No. 	492; 	John
Swett 	Unified 	School 	District 	(1981) 	PERB Decision No. 	188.
See, 	also, 	NLRB v. 	Gissel Packing Co. 	(1969) 	395 U.S. 	575 	[71
LRRM 2481]; 	NLRB v. American Tube Bending Co., 	Inc. 	(2d Cir.
1943) 	134 F.2d 993.
II
Villar 	and 	Ross 	testified 	that 	on 	two 	occasions 	during
meetings 	with 	the bilingual 	education aides Worden, 	while 	upset
6 The Board does 	note, 	however, 	that 	during the ALJ's
examination of Worden her questions were, 	at 	times, 	unduly
argumentative, 	conclusory and leading. 	While, 	on the whole, 	we
do not 	find 	the ALJ's 	conduct 	improper, 	nevertheless, 	due 	to
the 	need 	for 	decorum 	and 	strict 	adherence 	to neutrality, 	we 	do
not 	approve 	of 	this 	manner 	of 	questioning.
7Although 	the 	ALJ 	analyzed 	the 	interference 	issue 	only 	as
a 	violation of 	Local 	99's 	rights 	under 	EERA section 3543.5(b),
we 	find 	that 	it 	is more 	accurately analyzed as 	a violation of
employee 	rights under section 3543.5(a) 	and, 	derivatively, 	a
violation of section 3543.5(b) 	(see fn. 	1 ) .
9
'
"'
J

and 	irritated, 	told 	the 	aides 	that 	she 	wanted 	them 	to 	come 	to
her 	first 	with 	their 	problems before 	involving 	the 	union 	or
others 	from 	the 	outside. 	Villar 	testified 	that 	on 	one 	occasion
Worden was 	shaking her 	finger 	at 	the 	aides 	as 	she 	spoke.
Similarly, 	Ross 	testified 	that, 	based upon Worden's 	voice
intonations 	and 	general 	manner, 	Worden 	appeared 	angry.
Villar 	and 	Local 	99 	Representative 	Sally Ramirez 	also
testified 	that, 	at 	a meeting 	they had with Worden, 	she 	angrily
voiced her 	disapproval 	that 	Villar had 	not 	come 	to her 	first
before 	seeking 	union 	assistance 	(Ramirez 	testified 	that, 	in
fact, 	in 	that 	instance Villar had discussed 	the matter
previously with Worden before 	seeking Local 	99's 	assistance).
Ramirez 	also 	stated 	that 	in a phone 	conversation Worden,
sounding 	upset, 	emphatically reiterated her 	desire 	that
employees 	come 	directly to her 	with problems because 	"she
didn't 	like 	them 	to 	go outside 	of her 	jurisdiction." 	Villar
also 	testified 	that Worden 	called her 	a 	"troublemaker" 	for
bringing 	in the union. 	In 	crediting 	this 	testimony, 	the ALJ
specifically 	found 	that 	Worden 	conveyed 	the 	message 	even 	if 	she
did 	not 	use 	the 	exact 	word 	"troublemaker." 	While 	this 	was 	not
spoken 	in 	the presence of 	the other aides, 	it nonetheless
serves, 	along with 	the other 	comments 	attributed 	to Worden, 	to
set 	the 	backdrop 	for 	evaluating what 	the 	aides 	could 	reasonably
understand Worden's 	statements 	to mean.
Finally, 	it 	is 	important 	to note 	that 	the operative 	events
in 	this 	case 	took 	place 	amid widespread 	concern 	and 	tension
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among 	the 	education 	aides 	about 	job 	security. 	Education aides
are 	covered by 	a 	collective 	bargaining 	agreement 	and 	are
entitled 	to a wide 	range of 	fringe benefits, 	whether 	they are
full-time 	or part-time employees. 	There 	is 	another
classification, 	teacher assistant, 	that 	is not 	in the
bargaining 	unit 	and 	does 	not 	enjoy 	the 	same benefits 	and
protections. 	The 	duties 	and responsibilities of 	teacher
assistants 	are 	very 	similar 	to 	those 	of 	education 	aides 	and 	the
assistants 	are 	less 	expensive 	to employ. 	There was 	evidence
that 	the 	District had been 	employing 	increasing 	numbers 	of
teacher 	assistants 	and a 	decreasing number 	of 	education 	aides.
Worden's 	preference 	for hiring 	teacher 	assistants 	was 	well
known 	to 	the 	aides. 	The 	aides 	were 	under 	the 	impression 	that
Worden had 	the 	authority 	to eliminate 	the 	aide positions 	and
replace 	the 	aides 	with 	teacher 	assistants. 	Although Worden
told 	the 	aides 	at 	one point 	that 	their 	jobs 	were 	safe while 	she
was 	the 	principal, 	she also mentioned 	that 	she might 	transfer
to 	another 	school 	and 	that 	the 	aides 	might 	consider 	applying
for 	an 	available 	six-hour 	teacher 	assistant position 	in 	order
to 	guarantee 	continued 	employment.
Considering 	the 	circumstances 	described above, 	in
conjunction 	with 	the 	credited 	testimony 	concerning 	the 	manner
in which Worden's 	statements 	were made, 	we 	conclude 	that 	the
statements 	would 	reasonably 	tend 	to 	discourage 	the 	aides 	from
seeking 	the 	aid 	of 	Local 	99 	for 	fear 	of 	retaliatory action. 	On
that basis, 	we 	affirm 	the ALJ's 	finding 	that 	the 	statements
11

violated EERA sections 	3543.5(a) 	and, 	derivatively, 	section
3543.5(b).
We 	emphasize 	that 	there 	is 	nothing 	inherently unlawful 	in
Worden's 	expressed policy 	that 	employees 	first 	come 	to her 	to
try 	to 	resolve 	any complaints 	and problems 	they might have.
Our 	conclusion 	is based 	solely on 	the 	manner 	in which 	she made
the 	comments 	in light 	of 	surrounding circumstances. 	Here, 	we
find 	that 	the 	educational 	aides 	could 	reasonably understand
Worden's 	remarks 	as 	implied 	threats 	of 	adverse 	action 	if 	they
first 	consulted 	their 	union.
c. 	Posting 	at All 	Schools
Lastly, 	the 	District 	objects 	to 	the ALJ's 	order 	requiring
posting of 	a 	notice 	to employees 	at 	all 	school 	sites 	in 	the
District. 	The 	District 	views 	the 	order 	as 	overbroad 	and
suggests 	posting 	at 	Coldwater 	Canyon 	Elementary 	School 	only 	is
more 	appropriate. 	We disagree. 	First, 	we note 	that 	the
respondent 	in 	this 	case 	is 	the District, 	though 	the unlawful
activity 	was 	carried 	out 	by 	its 	agent 	at 	one 	particular
school. 	The purpose 	of 	a posting requirement 	is 	to 	inform 	all
who would 	naturally be 	concerned 	(i.e., 	employees 	of 	the
District, 	as 	well 	as 	management 	and 	supervisory personnel 	who
carry 	out 	District 	policies) 	of 	activity 	found 	to be 	unlawful
under 	the 	Act 	in 	order 	to provide 	guidance 	and prevent 	a
reoccurrence. 	The 	furtherance 	of 	the 	central purpose 	of 	the
EERA, 	harmonious 	labor relations, 	depends upon awareness 	of
what 	the 	statute demands 	of all parties. 	In 	light of 	our
12

remedial 	authority under 	the EERA 	(see, 	particularly, 	sections
3541.3(i) 	and 3541.5(c)), 	we 	find that 	the purposes of 	that Act
are best 	effectuated by district-wide 	posting 	in 	cases 	such 	as
the 	instant 	one.
CONCLUSION
In 	sum, 	we 	reverse 	the 	finding of 	a violation with regard
to 	Is is Villar's 	1984-1985 	performance 	evaluation rating and
affirm 	the 	finding 	that 	certain 	statements 	made by Dr. 	Pamela
Worden, 	an agent 	of 	the District, 	unlawfully carried 	implied
threats 	of 	adverse 	action 	should 	the 	education 	aides 	persist 	in
seeking 	the 	assistance 	of 	their 	employee 	organization, 	Local
99. 	In addition, 	we 	affirm the refusal 	to allow an amendment
to 	add 	an 	allegation 	concerning Villar's 	removal 	as 	noontime
aide 	director 	and 	affirm 	the 	propriety of 	district-wide 	posting
of 	the 	order.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	it 	is hereby ORDERED that
the 	District, 	its 	governing board and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
Denying 	to 	employees 	and 	to 	the 	Los 	Angeles 	City and County
School Employees Union, 	Local 99, 	Service Employees
International 	Union, 	AFL-CIO, 	rights 	guaranteed by the
Educational 	Employment 	Relations 	Act by discouraging 	employees,
through 	the 	use 	of 	implied 	threats, 	from 	seeking assistance 	of
their 	employee 	organization.
13

B. 	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
school 	sites 	and 	all 	other 	work 	locations 	where 	notices 	to
employees 	are 	customarily placed, 	copies 	of 	the 	Notice 	attached
hereto 	as 	an Appendix. 	The 	Notice 	must be 	signed by an
authorized 	agent 	of 	the 	District 	indicating 	that 	the 	District
will 	comply with 	the 	terms 	of 	this 	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.
(2) 	Written notification of 	the 	actions 	taken 	to comply
with 	this 	Order 	shall be 	made 	to 	the 	Los 	Angeles 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance
with his 	instructions.
Chairperson 	Hesse 	and Member 	Shank 	joined 	in 	this 	Decision.
14

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-2243,
Isis 	Villar 	and 	the 	Los Angeles 	City 	and 	County 	School 	Employees
Union, 	Local 	99, 	Service 	Employees 	International 	Union 	(Local
99) 	v. 	Los Angeles 	Unified School 	District, 	in which all parties
had 	the 	right 	to participate, 	it has been 	found 	that 	the
District 	violated Government 	Code 	sections 	3543.5(a) 	and 	(b) 	by
interfering with 	its 	employees' 	rights 	to seek 	the 	assistance 	of
their 	employee 	organization 	and 	with 	Local 	99's 	right 	to
represent 	employees.
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. 	Denying 	to 	employees 	and 	to Local 	99 	rights 	guaranteed
by 	the 	Educational 	Employment 	Relations 	Act by 	discouraging
employees, 	through 	the use 	of 	implied 	threats, 	from seeking the
assistance 	of 	their 	employee 	organization.
Dated:
Los 	Angeles 	Unified 	School 	District
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.
t)

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
ISIS VILLAR AND LOS ANGELES 	CITY AND
COUNTY 	SCHOOL 	EMPLOYEES UNION,
LOCAL 99, 	SERVICE EMPLOYEES
INTERNATIONAL UNION, 	AFL-CIO,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
Unfair 	Practice
Case No. 	LA-CE-2243
PROPOSED 	DECISION
(12/31/86)
Appearances: 	Geffner 	& Satzman by Jeffrey Paule, 	Attorney 	for
Isis 	Villar 	and 	Los 	Angeles 	City 	and 	County 	School 	Employees
Union, 	Local 	99, 	Service Employees 	International Union,
AFL-CIO; 	O'Melveny 	& Myers 	by Elaine M. 	Lustig 	and Virginia 	L.
Hoyt, 	Attorneys 	for Los Angeles Unified School 	District.
Before Barbara E. 	Miller, 	Administrative Law Judge.
I. 	PROCEDURAL HISTORY
On September 	18, 	1985, 	Isis Villar 	and the Los Angeles 	City
and County School Employees Union, 	Local 	99, 	Service Employees
International Union, 	AFL-CIO 	(hereinafter Charging 	Party, 	SEIU,
Union or Villar) 	filed 	an Unfair 	Practice Charge with 	the
Public Employment Relations 	Board 	(hereinafter PERB or 	Board) .
The Charge, 	which was amended on October 30, 	1985, 	alleges 	that
the Los 	Angeles 	Unified 	School 	District 	(hereinafter 	Respondent
or 	District) 	retaliated 	against Villar 	for 	engaging 	in
protected 	activity 	by 	reducing 	the 	rating 	on 	her 	annual
performance 	evaluation 	and 	by 	removing 	her 	from her 	position 	as
a 	noontime 	aide director.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
)
)
)
)
)
)
)
)
)
)
______________ )
~

The 	Charge was 	investigated 	by 	a 	staff 	attorney 	for 	the
PERB and on November 25, 	1985, 	a Complaint 	issued
simultaneously with 	a 	Partial 	Dismissal. 	The 	Complaint 	alleged
that 	the District 	had violated 	section 3543.5(a) 	and 	(b) 	of 	the
Educational 	Employment 	Relations 	Act 	(hereinafter 	EERA 	or
Act).1 The General Counsel dismissed 	the 	allegation
pertaining 	to Villar's 	removal 	as 	a 	noontime 	aide director
finding 	the 	facts 	alleged 	in 	the Charge were 	insufficient 	to
state 	a 	prima 	facie 	case. 	The Charging 	Party did 	not 	exercise
its 	right 	to 	appeal 	the 	Partial 	Dismissal 	to 	the 	Board 	itself.
The Respondent 	filed 	its Answer on December 	23, 	1985,
denying 	all 	the material 	allegations 	in the Charge/Complaint.
Thereafter, 	on January 13, 	1986, 	an informal conference was
held. 	When the 	parties were unable 	to 	resolve 	their 	disputes,
the 	matter was 	scheduled 	for 	formal 	hearing.
1The 	EERA is 	codified at Government Code section 3540, 	et
seq. 	Unless 	otherwise specified, 	all 	statutory 	references 	are
to the Government Code. 	Section 3543.5(a) 	and 	(b), 	provide as
follows:
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.
22

A pre-hearing 	conference was 	convened 	on February 20, 	1986,
and 	the 	formal 	hearing was 	conducted 	on February 27,
March 17-18, 	April 3, 	and April 22, 	1986. 	When the hearing
concluded, 	the Charging 	Party 	indicated 	its 	intention 	to move
to 	amend 	the Complaint 	to conform to 	proof, 	alleging 	that 	it
had 	been 	established 	that 	Villar 	was 	indeed 	removed 	from 	her
position 	as 	noontime 	aide director 	because 	of 	her 	protected
activity and 	that Betty Ross, 	an education aide, 	had 	also
received 	a 	reduced 	rating 	on her 	performance 	evaluation 	because
of 	her 	protected 	activity. 	The 	question of whether 	to 	allow 	the
amendment 	or 	to 	make 	a 	finding 	on 	the 	aforementioned 	issues 	was
left 	to 	post-hearing 	briefs which were 	timely 	filed. 	The 	case
was 	submitted 	for proposed decision on September 	29, 	1986.2
II. 	FINDINGS OF FACT
A. 	Overview
During 	the 	1984-85 	school 	year, 	Isis Villar 	and 	Betty Ross
held 	positions 	in 	the 	classification 	of 	bilingual 	education
aide 	at 	the District's Coldwater 	Canyon Elementary School.
During that year, 	Virginia Goddard, 	a teacher, 	served as 	the
school's 	bilingual 	coordinator 	and Dr. 	Pamela Worden was 	the
newly appointed principal. 	Although 	it 	is 	not 	clear 	if 	all 	the
changes which 	took place 	at 	the 	school 	during 	the 	1984-85
2 The 	briefing 	schedule 	in 	this 	matter 	was 	extremely
protracted due 	to 	a 	substitution of 	attorneys 	after 	the 	close
of 	the hearing.
W
	3

school year were 	attributable 	to Worden, 	it 	is undisputed 	that
changes 	took place.
Prior 	to Worden's 	employment, 	Coldwater Canyon only
employed 	education 	aides 	to 	assist 	in 	the 	classroom. 	After
Worden was 	hired, 	the school 	began to 	hire 	teacher's 	assistants
in 	lieu 	of 	education 	aides 	and many 	aides were 	anxious
throughout 	the 	school year 	about 	the potential 	elimination 	of
their positions. 	Prior 	to Worden's employment, 	the classroom
teacher 	and 	the 	bilingual 	coordinator 	were 	primarily
responsible 	for 	the 	evaluation of 	the 	education 	aides 	and 	in
that 	and other 	areas, 	after Worden's 	arrival, 	Goddard's
responsibilities 	diminished considerably. 	Worden, 	took
singular 	responsibility 	for 	the 	aide's 	performance 	evaluations.
Prior to Worden's 	arrival, 	aides, 	who usually worked only
three hours 	per day, 	were 	allowed 	to 	flex their 	time 	in order
to 	accommodate 	doctor's 	appointments 	or 	other 	compelling
personal 	business. 	Not 	long 	after Worden 	arrived, 	aides were
prohibited 	from 	flexing 	their 	time 	and 	Worden 	told 	the
employees 	that 	Isis Villar was 	to 	blame 	for 	the more 	rigorous
timekeeping 	procedures.33 Similarly, 	aides were no 	longer
allowed 	to 	take 	breaks 	and Worden 	suggested Villar 	and 	the
Union were 	responsible. 	Prior to Dr. 	Worden's 	arrival,
witnesses 	noted 	that 	the 	relationships 	between 	the 	education
3 The 	change was 	instituted 	after Villar, 	with the help 	of
the Union, 	demanded 	payment 	for 	extra 	hours worked 	on 	the
Jewish ho1idays.
44

aides were 	positive 	and 	the 	atmosphere was 	congenial. 	After
Worden's 	arrival, 	tensions 	ran high.
B. 	Isis Villar 	and 	Her 	Protected Activity
Although 	the 	District 	admits 	that 	Villar 	engaged 	in
protected 	activity, 	a description of Villar 	and 	that 	activity
is 	necessary 	in order 	to 	trace 	the development 	of 	her
relationship with 	Pamela 	Worden 	and 	this 	Unfair 	Practice 	Charge
As 	noted 	above, 	Villar 	is 	a bilingual 	education 	aide. 	She
has 	worked 	for 	the District 	and 	been 	assigned 	to 	Coldwater
Canyon 	as 	a 	bilingual 	education 	aide 	since 	1976. 	Since 	the
1982-83 	school 	year, 	Villar 	has 	assisted 	a 	sixth-grade
classroom teacher, 	Burton Govenar. 	Villar 	assumed 	the
assignment 	in 	the 	sixth-grade 	classroom at 	the 	urging 	of 	the
former principal, 	Charles 	Strole, 	who 	asked her 	to 	take the
assignment because of 	her 	special 	abilities. 	Villar 	holds 	a
Doctorate 	in Civil 	and Criminal 	Law 	and 	a 	Doctorate 	in
Philosophy 	and 	Humanities 	obtained 	from 	the 	University 	of
Havana 	in Cuba. 	She is 	fluent 	in English, 	Spanish, 	and other
languages. 	Although District policy mandates 	that Villar
should 	be working 	with 	Spanish-speaking 	students 	in 	reading 	and
Spanish 	only, 	the 	uncontroverted 	testimony 	indicates 	that
Villar 	is 	responsible 	for 	teaching 	Spanish-speaking 	students
all 	subjects with the exception of English as 	a 	second
language. 	Govenar does 	not 	speak Spanish.
In 	addition to 	her duties 	and 	responsibilities 	as 	a
bilingual 	education 	aide, 	Villar was 	appointed 	by SEIU to 	serve
5

as 	the 	steward 	for 	the education 	aides 	at 	Coldwater 	Canyon.
Although 	the 	record 	is 	unclear 	as 	to whether or 	not 	she
received 	that 	appointment 	in October 	1983 	or October 	1984, 	the
record 	does 	reflect 	that 	the 	District was 	properly notified 	of
her 	appointment 	as 	steward 	and 	she was 	introduced 	to Worden 	by
Sally Ramirez, 	the 	SEIU 	representative 	responsible 	for
Coldwater, 	as the shop steward.4
Villar was 	selected 	as Union steward 	as 	a 	result 	of 	her
leadership 	abilities, 	because 	she 	got 	along with 	and was
well-regarded 	by other 	employees 	in the unit, 	and 	because 	she
was 	quite 	articulate. 	In addition to 	serving 	as 	steward, 	prior
to 	the 	1984-85 	school year, 	Villar 	served 	as 	the 	on-site
representative 	and 	spokesperson 	for 	the 	education 	aides.
During 	the 	1984-85 	school year, 	Villar 	continued 	to 	serve 	as
the 	representative 	and 	spokesperson 	for 	the 	teachers'
assistants 	as well. 	At 	times 	relevant hereto, 	Villar was 	also
the 	chairperson of 	the 	school's 	advisory committee.
Villar's 	first 	documented 	difficulty with Worden was 	in
October 	1984. 	Earlier 	in the school year, 	Virginia Goddard
approached Villar 	and 	several 	other 	aides 	and 	asked 	them 	if
they would work 	additional 	time 	for 	additional 	compensation 	on
4Worden 	denied 	knowing 	that 	Villar was 	a 	steward.
Ramirez' 	testimony is credited because, 	as will be discussed
below, 	when Worden was 	told of Villar's 	stewardship, 	Worden was
agitated, 	hostile, 	and upset. 	Accordingly, 	I have concluded
that Worden's 	ability to 	recall 	the details 	of 	the meeting 	in
question was 	impaired. 	Moreover, 	knowledge of Villar's
stewardship 	is 	attributable to Worden.
66

V
the Jewish holidays when 	several 	teachers 	and 	at 	least 	one
education 	aide would 	be 	absent 	from school. 	Based 	on 	the
representation 	regarding 	additional 	compensation, 	Villar 	agreed
to 	assume the assignment. 	Thereafter, 	however, 	she was 	not
compensated 	and when 	she 	approached Goddard 	to 	discuss 	the
matter, 	she was 	ultimately told 	that Worden was 	requiring 	that
she 	take 	time 	off 	in 	lieu 	of 	compensation. J
Villar 	decided
to meet with Worden.
At 	that meeting, 	Worden told Villar 	it would be unlawful 	to
pay her 	for 	the work 	she 	had 	performed 	since 	she 	only 	served 	in
a 	three-hour 	position. 	Villar 	explained 	to Worden 	that 	aides
were 	allowed 	to work up 	to 	79 	hours 	per 	pay period without
becoming 	eligible 	for certain District 	benefits, 	and 	that,
accordingly, 	she wanted to be paid. 	According 	to Villar,
Worden was 	very hostile during 	this 	initial 	meeting. 	When
asked to 	elaborate, 	Villar 	testified 	as 	follows:
Well, 	she 	started 	like 	telling me 	that 	she
was 	the 	principal 	and 	she 	always 	had 	the
final 	say 	in matters 	concerning 	the 	school.
That 	[in] 	telling her 	I 	had the 	right 	to
work up to 	79 	hours, 	I was 	implying that 	she
didn't 	know what 	she was 	doing.
Finding 	the 	matter 	could 	not 	be 	resolved with Worden directly,
Villar 	contacted 	Sally Ramirez. 	Ramirez 	determined 	that,
before 	filing 	a 	formal 	grievance, 	it would be 	appropriate 	to
meet with Worden. 	The meeting 	commenced 	and Ramirez 	told
5 The 	District 	apparently wanted Villar 	to 	take 	a 	personal
necessity day off. 	Since 	such days 	are 	charged 	against
accumulated 	sick 	leave, 	Villar was 	not 	interested.
7

Worden why it was 	taking place. 	According 	to Ramirez, 	Worden
reacted 	in 	the 	following 	manner:
Her 	reaction was 	that 	she 	felt 	very upset
with 	the 	fact 	that 	the 	aides would 	have 	gone
outside of 	her 	jurisdiction 	to 	an outside
person. 	She felt that 	in her 	school, 	any
problem 	that 	arises 	should 	— 	everyone
should 	come 	directly 	to 	her 	and 	not 	— 	and
no 	need 	to 	go 	outside 	of 	her 	jurisdiction
and 	she did not 	care 	for 	that 	at 	all. 	And
she wanted me 	to 	know that 	right 	off.
And 	for me to tell 	the employees 	this, 	that
she 	had 	an 	open-door 	policy 	and 	that 	there
was 	no 	need 	for 	them to go 	to 	the union.
Worden 	apparently 	expressed 	her 	displeasure with 	the 	presence
of 	outsiders 	on more 	than one 	occasion during 	the 	course 	of
that 	first meeting. 	Nevertheless, 	after 	a 	second meeting, 	the
issue 	regarding 	compensation 	for 	the 	Jewish 	holiday was
resolved 	to Villar's 	satisfaction 	and 	there was 	no 	need 	to 	file
a 	formal 	grievance.
Not 	long 	thereafter, 	Villar 	believed 	she was 	being
short-changed 	in 	some of 	her 	paychecks. 	She 	approached Goddard
who 	told her 	to 	go 	to 	the office manager. 	The office manager
denied 	responsibility 	for 	the 	shortage 	in Villar's 	paycheck 	and
apparently 	stated 	any problems were 	attributable 	to Worden, 	who
supervised 	the payroll. 	Accordingly, 	Villar 	again met with
Worden.
Based on Villar's description, 	the meeting was 	not
particularly 	satisfactory. 	Worden 	apparently 	indicated 	that 	an
adjustment would be made, 	but 	it might take 	some time. 	Villar
was 	insistent 	that 	an 	emergency 	adjustment 	could 	be made 	and
Co
	8

.!.-
she did 	not want 	to wait 	for 	her money. 	Villar 	ended 	the
meeting 	by 	indicating 	that 	she was 	going 	to 	contact 	the union.
According 	to Villar, 	Worden was 	again upset.
Based 	on 	the 	testimony of 	several witnesses, 	and Worden
herself, 	it 	is 	clear 	that Worden did not 	like being
overstepped. 	She 	believed 	that 	all 	problems 	should 	be 	brought
to 	her 	attention 	first 	so 	that 	she would be 	in 	a 	better
position 	to 	resolve 	them. 	Although there 	is 	nothing
inappropriate 	about 	that 	philosophy, 	given Worden's 	level 	of
agitation, 	described 	by witnesses 	and displayed 	on 	the witness
stand, 6 the 	undersigned 	has 	concluded 	that 	her 	displeasure
was 	not 	merely philosophical. 	During 	one 	of 	these 	various
meetings, 	Villar 	testified 	that Worden told her 	she was 	a
troublemaker 	and 	that 	she was 	creating 	problems 	for Worden 	by
bringing 	the Union 	into 	the 	school. 	Ramirez1 recollection 	is
somewhat 	but 	not materially different. 	She 	testified 	that
Worden 	indicated Villar 	had 	a 	reputation 	for 	being 	a
troublemaker. 	Worden denies 	calling Villar 	a 	troublemaker.
Based 	on 	the 	comments 	of witnesses 	and Worden's 	own 	description
of 	her 	reaction to 	the Union being 	brought 	in, 	it 	is 	concluded
she 	conveyed 	the 	idea 	that Villar was 	a 	troublemaker whether 	or
9
6Throughout 	her testimony, 	Worden, 	although poised, 	was
abrupt 	and 	at 	times 	overly 	assertive. 	By her 	tone 	and 	physical
demeanor she 	displayed 	hostility while 	being 	questioned 	or
challenged 	by 	the 	undersigned 	and 	counsel 	for 	the 	Charging
Party. 	As 	questioning 	progressed 	she became defensive 	and made
several 	nonresponsive, 	gratuitous 	negative comments 	about
people 	she 	apparently did 	not 	perceive 	as 	members 	of 	her 	team.

not 	she 	used 	that 	precise 	term.
As 	the 	school 	year 	progressed, 	Worden 	and Villar 	clashed 	on
any number 	of 	issues. 	Villar 	and Worden 	spoke 	privately 	about
the 	question 	of 	replacing 	education 	aides with 	teacher's
assistants, 	a move 	favored 	by Worden 	and 	opposed 	by Villar.
(See pages 	14-22, 	infra.) 	In addition, 	Villar 	"overstepped"
Worden when, 	after 	Worden 	removed Villar 	involuntarily 	from her
position 	as 	noontime 	aide director, 	Villar 	responded by
bringing 	in the Union, 	contacting members 	of 	community, 	and
writing 	to 	the 	President 	of 	the 	School 	Board 	and 	the
Superintendent. 	In 	response to 	these various 	activities,
Worden was 	actively displeased with Villar.
C. 	The 	Noontime Aide Director's Assignment
Isis 	Villar 	held 	the 	non-bargaining 	unit 	position 	of
noontime 	aide director 	from 1974 	until March 27, 	1985, 	when she
was 	involuntarily 	removed 	from 	that 	assignment 	by 	Pamela
Worden. 	Although 	the duties 	and 	responsibilities 	of 	a 	noontime
aide 	director were 	never 	fully detailed 	by 	any of 	the
witnesses, 	the 	job 	apparently entails 	the 	supervision of
children 	in the 	lunch 	line, 	while 	they are eating 	lunch, 	and on
the 	playground 	in 	between 	lunch 	and 	classes.
In 	the more 	than 	ten years 	she 	served 	as 	noontime 	aide
director, 	there 	is 	no evidence that 	school 	administrators 	ever
criticized Villar's 	job 	performance. 	Pamela Worden 	and 	Janie
Taylor, 	the Assistant 	Principal who 	eventually 	assumed
responsibility for 	supervision of 	noontime 	aides, 	testified
10

that 	they 	spoke 	with 	one 	another 	and 	expressed 	some 	displeasure
over 	the 	fact 	that 	Villar 	did 	not 	move 	around 	the 	lunch 	area
and 	playground 	area 	more while 	executing 	her 	noontime 	aide
director 	responsibilities. 	On 	any 	given 	day they might 	have
told Villar 	to move 	around 	but 	there 	is 	no 	dispute 	that 	they
never 	called Villar 	in to 	speak with her 	about 	perceived
deficiencies 	in her 	job performance. 	In other words, 	Worden
may have 	said 	"Isis, 	don't you 	think you 	should move 	around"
but 	she 	never 	said 	"Isis, 	you 	are 	not 	properly performing your
job 	as 	noontime 	aide director."
In March 	1985, 	the Vice-Principal 	suggested 	that Villar 	let
the 	smaller 	students 	eat 	first. 	Accordingly, 	Villar had 	to
hold 	back 	students 	in 	the 	upper 	grades 	and make 	sure 	discipline
was 	maintained while 	they were waiting 	in 	line. 	Villar
testified 	that 	on March 	22, 	one 	particular 	line 	had 	been very
rebellious, 	with students 	jumping, 	yelling 	and banging on the
walls 	of 	the 	library. 	Accordingly, 	she made 	that 	particular
line wait until 	the very end. 	One 	student, 	who was 	irritated
with having 	to eat 	last, 	came out 	of 	the 	line, 	pushed Villar,
and 	hit 	her 	on 	the 	shoulder with his 	fist. 	He 	then 	started
shouting 	obscenities 	and 	tried 	to 	poke 	her 	eye with 	his
finger. 	After Worden arrived on 	the 	scene, 	the 	student
repeatedly 	indicated 	that 	he was 	going 	to 	punch Villar 	in 	the
mouth.
This 	incident 	took place 	on 	a 	Friday. 	Villar worked 	her
regular 	assignment 	the 	following Monday, 	Tuesday, 	and during
11

breakfast 	on 	Wednesday.7 Thereafter, 	she was 	called 	to
Worden's 	office 	and 	told 	that 	she was 	being 	temporarily
suspended 	from her 	noontime duties 	because 	of 	Villar's
expressed 	concern 	for 	her 	safety. 	Isis Villar 	never 	told
Pamela Worden 	that 	she was 	concerned 	for 	her 	safety.8
Understandably, 	Villar 	complained 	about 	being 	removed 	from
her 	position 	as 	a 	noontime 	aide director. 	She 	indicated 	that
she 	had 	never 	had 	problems 	in her 	eleven years 	in 	the 	position,
needed the money, 	and, 	if Worden was 	so concerned 	about 	her
safety, 	why didn't 	she 	remove her 	from recess 	duty as well.
Worden 	testified 	that 	the 	suspension was 	only designed 	as 	a
temporary until 	matters 	"cooled 	down." 9 The 	student,
7 Worden 	testified 	that 	she 	did 	not 	speak to 	Villar
immediately because Villar was 	not 	at 	school 	on Monday. 	the
attendance 	records 	for Villar's 	regular 	education 	aide
assignment 	reflect 	that 	she was 	in 	attendance.
8 Villar, 	had, 	however, 	sent a 	letter to John Greenwood,
the President of 	the Board of Education on March 25, 	1985. 	In
that 	letter, 	Villar 	criticized Worden 	and 	suggested 	that 	if
she, 	Villar, 	had not 	insisted upon the police being called, 	the
student, 	who was 	suspended 	for 	one day, 	would not 	have been
disciplined 	at 	all. 	Villar pointed out 	that Worden was, 	by her
"extreme 	leniency," 	encouraging 	other 	students 	to 	engage 	in
rebellious 	behavior. 	That 	letter 	is 	part 	of 	the official 	PERB
file 	and 	notice was 	taken of 	that 	file. 	The 	letter was 	not,
however, 	introduced 	into evidence.
9 It 	is 	not 	clear whether Worden conducted 	any 	kind 	of
investigation of 	the March 	22 	incident. 	She 	testified 	that 	she
did 	talk to 	the 	student 	and unnamed 	others. 	According 	to
Worden, 	the 	student 	claimed 	that Villar 	had 	been 	threatening
him because 	of 	his 	behavior 	and 	he 	had 	pushed 	her 	away.
Worden, 	who 	seemed to think that Villar, 	by her manner, 	incited
students, 	appeared 	to believe 	that Villar was 	in the wrong even
though the 	student was 	a 	habitual 	truant who 	had 	been
12

however, 	left 	the 	school within two weeks 	after 	the March 22
incident 	and Villar was 	never 	restored 	to 	her 	assignment.
According 	to Villar, 	Worden 	suggested 	that 	if Villar 	initiated
Union 	involvement, 	the 	temporary 	action would 	become
permanent. 	Villar 	did contact 	the Union 	and 	a 	grievance was
filed.
Worden denied 	that 	the 	filing 	of 	the 	grievance 	resulted 	in
the 	suspension becoming 	permanent. 	She 	testified 	that 	she did
not 	restore Villar 	because 	she was 	satisfied with 	the work of
the 	replacement 	and 	saw no 	need 	to 	replace 	a 	satisfactory-
employee with 	a merely adequate employee. 	Her 	testimony 	is 	not
credited 	for 	the 	following 	reason. 	Worden 	indicated 	that 	she
had 	asked 	Taylor 	if 	she 	could manage 	the 	lunch 	period without
Villar, 	with a 	substitute. 	There 	is no evidence that 	a
replacement was 	employed 	for 	that 	first week. 	Moreover, 	even
if 	such 	a 	replacement had been employed, 	one week of 	service 	is
hardly enough 	time 	to 	reach 	the 	conclusion 	that 	such 	an
employee 	should 	continue 	to 	fill 	a 	position Villar 	held 	for
approximately 	11 years.
previously 	suspended 	because 	of 	threats 	and 	altercations
concerning 	other 	children.
Worden did 	not 	give 	her 	apparent 	belief 	that Villar was
partially at 	fault 	as 	a 	reason for 	the 	suspension. 	Similarly,
she 	never 	gave 	any 	indication 	that Villar was 	being 	removed
because 	of 	dissatisfaction with her 	job performance; 	the 	only
reason given was Villar's 	alleged 	fear 	for 	her 	safety. 	At 	the
time of 	the 	suspension, 	however, 	Villar denied that 	she had 	any
continuing 	concern 	in 	that 	regard.
13

D. 	Education Aides 	versus 	Teaching Assistants
For 	quite 	some 	time, 	the District 	had 	employed 	teacher
assistants 	as well 	as education aides. 	The position of
education 	aide 	is 	in 	the 	bargaining 	unit 	represented 	by SEIU.
Education aides, 	even those who do not work full-time, 	are
covered 	by 	a 	collective 	bargaining 	agreement 	and 	are 	entitled
to 	a wide 	range of 	fringe benefits, 	including, 	but not 	limited
to, 	vacation, 	sick leave, 	and holidays. 	Education aides 	are
part 	of 	the merit 	system 	and 	have 	a 	vested 	right 	in 	their
continued 	employment.
Although 	the 	duties 	and responsibilities of 	a 	teacher
assistant were 	never made 	entirely clear, 	they 	apparently do
not differ, 	in great measure, 	from the duties 	and
responsibilities 	of 	an education 	aide. 	The position of 	teacher
assistant, 	however, 	is not a bargaining unit position.
Incumbents 	are not 	considered merit 	system employees, 	can be
terminated 	at 	the will of 	the employer, 	and have no 	rights 	to
any of 	the 	fringe 	benefits 	afforded 	by the District.
Since the creation of 	the position of 	teacher 	assistant, 	a
pattern 	has 	developed whereby 	the 	District 	employs 	an
increasing 	number 	of 	teacher 	assistants 	and 	a 	decreasing 	number
of 	education 	aides. 	Although the 	reallocation of 	duties 	and
responsibilities 	and 	the 	elimination 	or 	creation 	of 	positions
is 	not 	the 	issue 	in the 	this 	unfair 	practice proceeding,
employees' 	concerns 	about 	the potential 	elimination of 	their
positions 	colored 	all 	the 	events 	discussed 	herein.
14

Education 	aides 	at 	Coldwater 	Canyon were 	acutely 	aware 	of
the 	fact 	that 	their 	positions 	might 	be eliminated 	and 	that, 	as
a 	practical matter, 	teacher 	assistants might be employed 	to
replace 	them. 	Their 	concerns 	were 	heightened 	during 	the
1984-85 	school 	year 	given 	the 	employment 	of 	Worden who 	favored,
allegedly for 	budgetary 	reasons, 	the utilization of 	teacher
assistants.10	10 Throughout 	his 	long 	tenure, 	Charles 	Strole
employed 	no 	teacher 	assistants 	while 	during 	her 	first 	year,
Pamela Worden 	hired 	between 	10 	and 	12.
Not 	long 	after 	Worden 	began 	hiring 	teacher 	assistants,
education 	aides 	began 	expressing 	concern 	regarding 	the 	status
of 	their 	positions. 	In the 	fall 	of 	1984, 	Union 	representatives
began visiting the 	school 	site 	and meeting with 	the 	employees.
Newly 	hired 	teacher 	assistants 	complained 	that 	they were 	a
captive 	audience 	during 	the Union meetings 	and 	tension 	began 	to
develop 	between members 	of 	the 	hitherto 	homogeneous 	and
harmonious 	paraprofessional 	staff. 	Several 	aides 	testified
that Worden 	expressed 	her 	preference 	for 	teacher 	assistants 	and
indicated 	that 	future 	hires 	would 	be within 	that
classification. 	According 	to Villar, 	some education 	aides
began to 	get 	"panicky," 	asking 	her, 	in her 	capacity as 	steward,
whether 	or 	not 	they would 	soon 	be 	terminated.
10Although 	teacher 	assistants 	were 	generally 	allowed 	to
work more 	hours 	than 	education 	aides, 	because 	they had 	no
benefits, 	their 	employment 	cost 	the 	District 	considerably 	less
per 	hour.
15

Villar 	spoke 	to 	the Union 	and 	also 	contacted 	the 	bilingual
education office 	in downtown District 	headquarters. 	After
speaking 	to Manuel 	Ponce 	and Lupe Torre, 	Villar 	learned 	that
the 	District 	had 	no 	intention of 	eliminating 	bilingual 	aides,
but 	particular 	hiring 	patterns were 	left 	to 	the discretion 	of
the 	school 	principal. 	Villar met with Worden, 	who 	reaffirmed
her 	preference 	for 	teacher 	assistants 	because 	their 	employment
facilitated 	budget 	management. 	Apparently no 	definitive
information was 	provided with 	respect 	to 	the 	retention 	or
elimination of 	education 	aide 	positions.
Sometime thereafter, 	at 	a 	regular meeting of Worden, 	the
education 	aides 	and 	the 	teacher 	assistants, 	evidence 	of 	tension
appeared, 	although 	it 	is 	not entirely clear 	if 	position
allocation was 	the catalyst. 	At 	that meeting, 	on April 	24,
1985, 	Worden 	announced 	that 	she 	had 	been 	approached 	by 	some
teacher 	assistants 	and 	informed 	that 	education 	aides 	had 	been
criticizing 	her. 	According 	to Villar, 	Worden 	indicated 	that
such 	action meant 	that 	education 	aides 	were 	judging 	her 	and 	she
did 	not 	like being 	judged. 	Moreover, 	she 	indicated 	that 	if 	the
aides 	persisted 	in 	judging 	her, 	she would 	reciprocate 	and 	judge
them. 	Worden 	indicated 	they ought 	to 	keep 	in mind 	that
evaluation 	time was 	arriving 	and 	she 	had 	the 	final 	say 	in 	that
process.
At 	that meeting, 	when 	asked what 	aides 	should do 	if 	they
had 	any questions 	or doubts, 	apparently about 	the 	security of
their 	positions, 	Worden 	indicated 	that 	the 	aides 	should 	come 	to
16

her. 	In that 	school, 	she noted, 	no one had 	any authority
whatsoever 	except 	for her. 	She was 	in command. 	Nothing
further was 	said 	at 	that 	meeting with 	respect 	to 	replacing 	the
education 	aides.11	11
The 	next meeting where 	the 	question of 	education 	aides 	and
teacher 	assistants 	arose was 	called by Virginia Goddard, 	on 	a
day when Worden was 	not 	at 	the 	school 	site. 	Goddard had
learned 	that 	some 	education 	aides were 	having 	a meeting 	at
Villar's 	home 	and, 	for 	reasons 	she could never 	articulate, 	the
notion of 	such 	a meeting was 	of 	sufficient 	concern 	to 	Goddard
that 	she 	immediately called 	a meeting 	of 	the 	aides 	during
regular working 	hours.
Witnesses' 	recollections 	regarding 	the May 17 meeting
differ but, 	again, 	Villar's general 	recollection is
credited. 12 According 	to Villar, 	balancing 	the 	school 	budget
1lvillar'
12villar'
17
llvillar' 11 Villar's testimony regarding the meeting on April 24,
1985, 	is 	credited. 	Villar's 	recollection of 	specific details
was 	usually quite 	good. 	Moreover, 	Worden did 	not 	deny making
the 	statements 	and 	Irene Moder, 	an education 	aide who 	has
recently had 	her 	differences with Villar, 	seemed 	to 	recall 	some
of 	the 	statements Villar 	attributed 	to Worden, 	although Moder
could 	not 	specifically 	recall 	the 	context 	in which 	the
statements were made.
12Villar's testimony is supported by Betty Ross and
inferentially by 	Irene Moder. 	Moreover, 	Villar 	took notes 	at
the meeting 	and 	those 	notes 	were 	signed 	by 	three 	other 	aides.
To 	the 	extent 	the 	testimony of 	Goddard 	and Moder 	differs 	from
Villar's, 	it 	is 	not 	credited. 	Goddard was very nervous while
testifying 	and 	repreatedly demonstrated 	that 	it 	would 	be
inappropriate 	to 	do 	or 	say 	anything 	which 	could 	be 	perceived 	as
challenging 	her 	superior, 	Worden. 	Moder 	too 	presented 	herself
as 	a 	principal-pleaser who wanted 	a 	return to 	the days 	of
harmony 	before 	Isis 	Villar 	started writing 	letters 	and 	bringing
in the Union, 	and creating disharmony.
12villar'

had 	been 	a matter 	of 	general 	concern. 	Since 	teacher 	assistants
could be 	employed 	at 	a 	reduced cost, 	aides 	reasonably felt
their 	jobs were 	in 	jeopardy.
At 	the meeting, 	Goddard 	assured 	the 	aides 	that 	she was 	on
their 	side 	and 	fought 	a 	"hard 	battle" 	with Worden 	in order 	to
retain 	their 	services. 	Although 	she 	had 	been on 	the 	brink of
resigning 	from her 	assignment 	as 	bilingual 	coordinator, 	for 	the
time being, 	their positions were 	safe. 	According 	to Villar,
Goodard 	told 	the 	employees 	not 	to 	rock the 	boat. 	According 	to
Moder, 	she was 	the 	one who 	said words 	to 	the effect 	"so you're
telling 	us 	not 	to 	rock the 	boat." 	Whoever made 	the 	comment,
the 	tenor 	of 	the meeting was 	clear. 	Goddard went 	on to 	say
that 	if Worden got 	irritated, 	she might 	eliminate 	all 	the
bilingual 	aides. 	Worden was 	described 	as 	intelligent,
powerful, 	and 	influential. 	Aides were told that Coldwater
Canyon was Worden's 	school 	and 	she 	could do whatever 	she
wanted. 	Although employees 	could contact 	the union, 	write
letters, 	or 	talk to 	anyone they wished, 	it would not do 	them
any good 	because 	the 	school 	board was 	always 	going 	to 	side with
the principal 	of 	the 	school.
Betty Ross 	described 	the meeting 	as 	follows:
Now, 	at 	the meeting, 	Virginia Goddard said
that 	we 	should 	stop 	rocking 	the 	boat 	because
she 	— 	Dr. 	Worden 	has 	the 	right 	of
terminating 	all 	of 	the 	educational 	aide'
positions. 	And Virginia 	Goddard 	assured us
that 	she 	has 	been doing 	everything 	in her
power 	to 	have Dr. 	Worden 	accept 	the 	fact
that we 	are 	very good 	aides 	and we 	have 	been
working 	for the school 	for 	a 	long time, 	and
that we 	should 	remain.
18

But Virginia 	assured 	us 	that 	if we 	kept 	on
continually rocking 	the boat, 	Dr. 	Worden has
ways 	of 	eliminating 	the 	position.
After 	the meeting, 	many of 	the 	aides were 	quite 	agitated.
Ross, 	who 	had 	transferred 	to 	Coldwater 	Canyon 	from Hazeltine
Avenue 	Elementary when 	her 	education 	aide 	position 	had 	been
eliminated, 	was 	particularly concerned. 	Ross 	recalled 	that
Lorraine Jobes, 	a 	representative of the District office, 	had
suggested 	that 	aides 	call 	her 	if 	they ever 	had 	any questions
about 	their positions. 	Accordingly, 	Ross 	called downtown 	in an
attempt 	to 	alleviate 	her 	concern.
When Worden 	returned 	to 	the 	school 	site 	the 	following 	week,
she 	received word 	of 	the 	call 	to 	the District 	office 	and word
of 	the meeting 	called by Virginia 	Goddard. 	Worden was 	quite
displeased. 	Based 	on her 	own 	testimony, 	she explicitly and
implicitly 	indicated 	her 	anger with 	Goddard 	for 	calling 	the
meeting 	and 	her 	irritation 	at 	being 	confronted 	by
representatives 	from the District 	at 	a 	time when 	she 	had
insufficient 	knowledge 	to 	respond.
In order 	to 	set 	the 	record 	straight, 	Worden called 	a
meeting on May 22, 	1985, 	in her office. 	In a meeting everyone
described 	as 	stormy, 	she 	indicated 	to 	the 	aides 	assembled 	that
although 	she would 	prefer 	employing 	teacher 	assistants, 	as 	long
as 	the 	aides wished 	to 	retain 	their 	education 	aide 	positions,
they were 	safe, 	provided 	she was 	principal. 	She 	further
indicated, 	however, 	that 	she might be transferring to 	a
19

position 	at 	Palos Verde 	and 	she 	could make 	no 	guarantee whether
a 	successor 	principal would 	eliminate 	the 	education 	aide
positions. 	Worden went 	on to 	point 	out 	that 	there was 	a
six-hour 	teacher 	assistant 	position 	available 	and 	it 	might 	be
wise 	for 	an 	education 	aide 	to 	apply 	for 	such 	a 	position,
thereby guaranteeing 	continued 	employment. 	Finally, 	Worden
indicated 	to 	the 	group 	her 	displeasure with 	the 	fact 	that
someone 	had 	gone 	outside 	the 	school 	and 	called 	downtown
expressing 	concern 	about 	the 	continued 	retention 	of 	education
aides. 	Ross, 	who 	concluded Worden was 	blaming Villar 	for 	the
phone call, 	volunteered 	the 	information 	that 	she was 	the 	one
who 	had 	called 	downtown. 	After 	the meeting, 	Worden 	and Ross
met 	to discuss 	the matter 	further.
Ross 	explained 	that 	she 	thought 	there was 	nothing
inappropriate 	in calling 	downtown. 	She 	recalled Worden's
response 	as 	follows:
She 	said 	to me 	that 	she 	is 	always 	available
at the school. 	I 	said you weren't here. 	I
should 	have 	asked 	the 	office 	personnel 	and
they 	should 	have 	contacted 	her 	and 	she would
call me back. 	But 	I 	should 	never 	call
anyone outside of her. 	In other words, 	I
have 	to 	go 	through 	the 	channels 	of 	going 	to
her 	directly.
According 	to Ross, 	Worden was 	visibly upset during 	this
meeting. 	Although 	she ordinarily uses 	her 	hands 	a 	great 	deal,
on 	this 	occasion her movements were 	less 	fluid. 	She was 	going
through 	papers 	and you could 	tell 	that 	she was 	not 	at 	ease with
20

the 	situation. 	Ross 	also 	testified 	that 	the 	tempo 	of Worden's
speech was 	noticeably changed.13	13
Worden 	and 	Ross 	had 	one 	additional 	meeting 	regarding 	the
retention of 	education aide positions. 	According 	to Worden,
she 	had 	been 	gardening 	over 	Memorial 	Day weekend 	and while
gardening 	she does 	her 	best 	thinking. 	As Worden explained 	it,
she was 	questioning Ross' 	level 	of 	concern 	about 	the potential
elimination 	of 	her 	position 	and 	trying 	to 	ascertain 	the 	cause
of 	Ross' 	concern. 	Worden understood 	that 	Ross' 	position had
been 	eliminated 	at 	Hazeltine 	Elementary 	and 	concluded 	that 	the
only 	reason 	for 	eliminating 	the 	position was 	the 	school's
desire to 	get 	rid of 	Ross. 	Accordingly, 	Worden decided 	to meet
with Ross 	to 	force Ross 	to 	recognize 	that 	she 	had 	not 	been
wanted 	in 	the 	previous 	school 	and 	perhaps 	get 	her 	to 	see 	she
might 	be 	repeating 	the pattern 	at 	Coldwater.
13	13During	ouring 	the May 22 	meeting 	between Worden 	and 	Ross,
there was 	also 	a discussion 	about 	a 	policy, 	instituted by
Worden, 	of 	prohibiting 	education 	aides 	from using 	compensatory
time 	or 	flextime while 	teacher 	assistants 	were 	allowed 	some
flexibility 	in 	scheduling. 	Ross 	asked why 	the 	new policy had
been 	instituted 	and Worden 	responded 	as 	follows:
She 	said 	that 	we 	were 	not 	— 	she 	was 	not
able 	to 	accommodate us 	in 	this 	respect
thanks 	to your 	friend 	Isis 	since 	Isis 	had
gone 	ahead 	and 	brought 	the 	union 	into 	the
picture, 	and 	since now that 	Sally Ramirez
had come 	in, 	we could 	no 	longer 	take 	comp
time 	because 	that was 	not 	according 	to 	the
books 	and we 	had 	to 	go 	follow the 	books 	and
rules 	because 	the union was 	on our 	backs.
21

At 	the meeting, 	Worden 	repeatedly asked Ross 	if 	she had
made enemies 	at 	her previous 	school, 	if 	she had 	offended 	the
principal, 	if 	she had been overly active 	in the union, 	etc. 	In
front 	of 	Janie Taylor, 	Worden explained to Ross 	that 	she was
obviously 	transferred 	because 	they wanted 	to 	get 	rid 	of 	her
because 	the 	principal would never 	have 	"closed out" 	a 	position
occupied 	by 	a 	valued 	employee.
Worden 	justified 	her 	conversation with 	Ross 	by 	stating 	that
she was 	trying 	to 	get Ross 	to 	be 	introspective 	and 	perhaps 	get
in 	touch with 	some 	traits 	that 	offended 	people 	and 	led 	to 	her
premature 	removal 	from Hazeltine. 	In that way, 	Worden claimed,
Ross 	might 	be 	able 	to 	avoid making 	the 	same mistakes 	and
suffering 	the 	same 	fate 	at 	Coldwater. 	Whether Worden's
statements 	were 	gratuitously malicious 	or 	motivated 	by 	her
anti-union disposition, 	she was 	clearly suggesting 	that 	if 	Ross
had 	been 	removed 	from one 	school 	because 	she made waves, 	she
could 	easily 	be 	removed 	from 	another.
E. 	Villar's 	and Ross' 	Performance Evaluations
Background
There 	is 	no 	dispute 	that 	the process 	for 	the 	evaluation of
education 	aides 	at 	Coldwater 	Canyon Elementary 	changed when
Pamela Worden became principal. 	Prior 	to Worden's 	tenure, 	the
principal 	essentially 	left 	the 	evaluation of 	aides 	to 	their
immediate supervisor, 	the classroom teacher. 	Although the
classroom 	teacher 	had 	unfettered 	discretion with 	respect 	to
determining what 	the 	evaluation would 	say, 	the 	evaluation
22

itself 	was 	ordinarily 	signed 	by Principal 	Strole 	and Virginia
Goddard.
In years past, 	teachers, 	with the principal's endorsement,
had been 	quite 	positive 	in 	their 	evaluation of 	aides. 	For 	the
1982-83 	and 	1983-84 	school years, 	all 	those 	aides 	for whom
evaluations 	were 	admitted 	into 	evidence were 	rated 	as 	"exceeds
work performance 	standards" 	in most 	categories. 	All 	received
"exceeds" 	in the overall work performance evaluation. 	In 	the
category of 	"work habits" 	Villar 	consistently 	received 	a 	rating
of 	"meets work performance 	standards" 	but 	her 	overall 	rating
was 	"exceeds." 	No 	comments were 	included 	on 	any of 	the 	rating
sheets 	and 	there was 	no 	evidence 	as 	to whether 	or 	not 	training
was 	provided 	to 	teachers 	or 	as 	to whether 	Strole 	articulated
the 	standards 	he wanted 	teachers 	to 	utilize with 	respect 	to 	the
evaluation of 	aides.
Early 	in 	the 	1984-85 	school year, 	based upon 	information
Worden 	received 	during 	weekly 	or 	monthly 	staff 	training
sessions, 	she 	concluded Goddard 	should 	not 	sign 	the
evaluations. 	The District 	apparently 	believed 	that 	it was
inappropriate 	to 	officially have 	a 	member 	of 	the 	rank-and-file
certificated 	unit 	act 	in 	a 	supervisory capacity vis-a-vis 	a
rank-and-file member 	of 	the 	classified 	unit. 	Although nothing
in 	the 	EERA would 	preclude 	a 	certificated 	employee 	from 	acting
in 	such a capacity, 	that was 	the District's 	position. 	No
District 	policy, 	however, 	prevented 	classroom teachers 	from
acting 	in 	precisely 	the 	same 	capacity 	as 	they 	had 	before Worden
23

arrived at 	the school. 	That 	is, 	teachers could still
effectively 	recommend 	the 	content 	of 	the 	evaluation 	form. 	The
only 	action 	precluded 	by District 	policy was 	Goddard's
signature 	on the 	evaluation. 	Notwithstanding 	the 	latitude
afforded 	by the District's 	policy, 	Worden wanted 	to 	have 	a
greater 	say 	and more 	control 	over 	the 	evaluations.
Worden 	told 	Goddard 	early 	in 	the 	school 	year 	that 	Goddard
would 	no 	longer 	take 	an 	active 	role 	in 	the 	evaluation process;
that 	is, 	she would no 	longer 	sign the 	forms. 	Goddard did not
seem pleased with 	the 	change which 	she 	viewed 	as 	an 	incursion
into 	her 	authority. 	Worden 	also 	told 	the 	aides 	themselves 	of
her 	increased 	role 	in the 	evaluation process 	and 	it 	is 	assumed
she 	also 	communicated 	this 	information 	to 	the 	classroom
teachers.
When 	it 	came time to evaluate the 	aides, 	Worden claims 	she
had no 	conversations with the 	teachers, 	no 	conversations with
Goddard, 	and did nothing 	to 	set 	the process 	in motion.
Nevertheless, 	Goddard circulated 	copies 	of 	the 	evaluation 	forms
to 	all the teachers, 	the forms were, 	apparently without
direction, 	returned to either Goddard or Worden, 	and then
Goddard 	and 	a 	support 	staff 	employee 	transferred 	the 	teachers'
comments 	onto 	a 	typed 	final 	evaluation 	form. 	Goddard 	then
presented 	the 	typed 	forms 	to Worden 	for 	her 	signature 	and
Worden declined 	to 	sign 	until 	she 	had 	an 	opportunity 	to 	review
the evaluations.
24

Worden's 	Approach to 	the Evaluation Process
In order 	to 	fulfill 	her 	duties 	and 	responsibilities 	as
principal 	and 	in 	order 	to 	gain 	information 	necessary 	for 	the
evaluation process, 	Worden claims 	that 	she 	visited 	classrooms
several 	times 	a week during 	her early tenure 	at Coldwater. 	She
testified 	that 	during 	those 	visits 	she 	had 	an 	opportunity 	to
observe 	the 	aides 	at work. 	Although the questioning 	of Worden
was 	not 	particularly precise on this 	issue, 	it 	appears 	to 	the
undersigned 	that Worden made 	a 	point 	of 	visiting 	classrooms 	in
order 	to get to 	know the faculty, 	the students, 	and the aides.
She did not, 	however, 	time her visits 	to correspond to 	the
brief 	period 	during 	the day when 	the 	education 	aide 	might 	be 	in
the 	room. 	Accordingly, 	I 	conclude that her 	ability to evaluate
the 	aides was 	not 	based 	on 	the 	extensive 	exposure 	she 	claims.
On 	the other 	hand, 	I 	conclude 	that Villar's 	testimony that
Worden was 	only 	in her 	classroom once 	is 	also 	suspect 	and 	the
truth 	is 	probably 	somewhere 	in between.
Worden 	claimed 	that 	she 	usually 	spoke with 	the 	faculty 	and
shared 	information when 	she 	returned 	from 	staff 	meetings 	at
District 	offices. 	She 	also 	indicated 	that 	she 	spoke with Rodie
Greenberg, 	the campus 	leader of 	the 	faculty association, 	on a
daily basis. 	Nevertheless, 	she 	also claims 	that 	she did not
speak with 	the 	faculty 	in 	general 	or with Burt 	Govenar 	in
particular 	about 	the 	evaluation of 	education 	aides. 	Worden was
not 	asked, 	and 	accordingly did not deny, 	whether 	she 	spoke 	to
the 	faculty or 	the 	aides 	about 	the 	expectations 	she 	had 	for 	the
25

job performance 	of 	aides.14 She 	readily 	admits 	that 	she 	did
not 	talk with either 	Betty Ross 	or 	Isis 	Villar 	about 	their 	job
performance, 	or 	perceived deficiencies, 	any time 	during 	the
school year.
Worden did 	not 	have 	any written 	standards 	for 	the
evaluation of education aides. 	She did, 	however, 	claim to have
standards. 	Most 	of 	them were 	subjective. 	Worden was 	quite
interested 	in 	the 	attitude 	of 	the 	aide when working with
children. 	She wanted them to 	radiate warmth 	and 	have 	positive
intonations 	in 	their 	speech. 	If 	children 	asked 	about 	the 	aide
when 	she was 	sick or 	ran 	to meet 	her 	and hug 	her 	during 	recess,
Worden considered 	those 	things 	positive 	reflections 	on 	the
aides' effectiveness.
In order 	to merit 	a 	rating 	of 	"meets 	job performance
standards," 	Worden wanted 	the 	aide 	to 	have 	a 	thorough 	knowledge
of 	all materials, 	have 	a 	good understanding of 	children's
performance 	and 	ability, 	and be dependable. 	In order 	to 	rate
an 	"exceeds" 	the 	aide had 	to 	be 	able 	to work at 	all 	grade
levels, 	have 	a 	special 	relationship with other members 	of 	the
staff, 	and 	a 	special 	attitude. 	Worden's 	model 	aide would work
late 	and 	come 	in early. 	That 	aide would have 	a 	good
relationship with 	office 	staff 	and would 	be willing 	to 	pick up
14 Worden's 	testimony 	that 	she did 	not 	talk to 	Govenar
about Villar's 	evaluation 	is 	not 	credited. 	Worden 	admitted
that when 	she 	talked 	to Villar 	about 	her 	evaluation 	she
deliberately 	avoided 	reference 	to 	Govenar's 	comments 	because 	he
asked 	not 	to 	be 	involved 	in 	any controversy.
26

a 	ringing 	telephone 	even when 	it was 	not 	her 	job to 	do 	so. 	The
model 	aide would 	be willing 	to 	do 	out-of-class work, 	would 	have
a 	greeting 	for 	all, 	and would 	remember 	birthdays.
On 	the District 	evaluation 	form, 	education 	aides were 	rated
in the following categories: 	1. 	quality of work; 	2. 	quantity of
work; 	3. 	work habits; 	4. 	relationships with others; 	5.
additional 	job-related 	factors; 	and 	6. 	overall work
performance. 	Worden 	stated 	that 	her 	primary concern 	in 	the
evaluation of 	the 	aides was 	their 	relationship with others.
She 	noted 	that 	the 	aide must work with 	adults 	and with 	an
emotionally 	immature commodity, 	children. 	For 	the evaluation,
it 	appeared 	that 	their 	relationship with 	adults 	outside 	the
classroom was 	of 	paramount concern. 	Next, 	she thought
dependability and work habits were 	the most 	important. 	Of
great 	concern 	in 	that 	category was 	attendance.
Worden 	admitted 	that 	she 	did 	not 	have 	fixed 	standards 	for
ranking 	aides 	in these categories. 	For 	example, 	Gloria
Piangerelli 	was 	frequently 	absent. 	She was 	not marked 	down 	in
work habits 	and 	in fact was 	rated 	as 	"exceeds" 	because 	she
suffered 	from 	a 	chronic 	heart 	condition 	and Worden 	thought 	it
admirable that 	she worked 	at 	all. 	Betty Ross, 	on the other
hand, 	was 	absent 	a number of days during 	the year, 	primarily
because 	she 	had 	two 	extended 	bouts 	of 	the 	flu. 	Although 	the
teacher 	for 	whom Ross 	worked 	thought 	her work 	habits 	exceeded
job 	performance 	standards 	and 	specifically 	commented 	that 	Ross
27

worked even when 	she was 	ill, 	Worden downgraded Ross 	in that
category.115	5
In other 	instances, 	Worden would give 	an aide 	the highest
ranking 	in 	the 	two 	categories 	she 	considered most 	important 	and
yet 	not 	give 	them an overall 	"exceeds." 	She 	always 	had 	some
justification 	for 	deviating 	from her 	alleged 	standards. 	For
example, 	one 	aide had 	received 	"exceeds" 	in 	all 	categories 	from
the 	teacher. 	Although Worden 	kept 	the 	high marks 	for work
habits 	and 	relations with others, 	she marked the 	aide down 	in
all 	other 	categories. 	Although that 	type 	of 	rating would
ordinarily 	still 	rate 	an 	"exceeds", 	Worden testified 	that 	in
this 	instance, 	the 	aide was 	not 	sufficiently proficient 	in
English. 	Another 	aide 	received only 	"meets" 	in every category
but 	relationships with others 	and 	ended up with 	an 	"exceeds"
evaluation, 	while 	another 	received 	an 	"exceeds" 	only 	in 	the
category 	of 	work habits 	and 	ended 	up with 	an overall 	rating 	of
"exceeds".
In summary, 	Worden appeared 	to 	look at 	each 	aide
individually 	and 	used 	standards 	which 	seemed 	appropriate 	for
that 	aide. 	If 	she personally 	liked the 	aide, 	the 	aide 	fared
1 5 If Worden had 	taken the 	time 	to 	look at 	Ross' 	record
with 	the District 	she would 	have 	recognized 	that 	Ross' 	absences
for 	illness 	in the 	1984-85 	school year were unusual. 	She 	then
could 	have 	ascertained whether 	they were 	attributable 	to 	an
extraordinary 	situation which 	warranted 	the 	special 	treatment
afforded 	Piangerelli.
28

well 	in 	the evaluation process. 	If 	she 	and 	the 	aide 	had 	their
differences, 	there 	is 	no evidence that Worden tried to 	look
beyond 	her 	personal 	reactions 	and 	evaluate 	the 	aide
objectively. 	For 	example, 	Worden did not 	think that Ross
worked with other 	aides 	or went 	out 	of 	her way 	for 	others.
When 	Ross 	pointed 	out 	that 	she 	had 	done 	the 	inventory of 	aide
materials 	and 	had undertaken 	the 	training 	of 	several 	aides,
Worden did 	nothing 	to 	find 	out whether 	her 	own 	assessment 	had
been 	incorrect.
Another 	example 	concerned whether 	or 	not Ross 	had 	given 	a
test 	to 	a 	student 	in 	a 	timely manner. 	Worden concluded 	she had
not 	and 	considered 	the matter 	of 	such 	importance 	that 	she 	used
it 	to 	justify marking Ross 	down 	in one category. 	When Ross
suggested 	that Worden's 	information was 	incorrect, 	Worden did
nothing 	to 	verify 	it.
Perhaps 	equally telling 	is 	the 	fact 	that Worden denies 	any
effort 	to meet with 	the 	teachers who worked with 	the 	aides 	on 	a
daily basis. 	She undercut 	their 	recommendations without 	making
any attempt 	to 	ascertain what 	standards 	they used. 	Worden
claims 	she 	discussed 	the 	evaluations 	at 	length with Goddard 	but
Goddard 	testified 	that only the 	best 	aide, 	Lucy Fajardo, 	was
discussed. 	In this 	regard, 	I 	credit Goddard 1 s 	testimony.
Based 	upon 	all 	descriptions 	of 	the way Worden 	conducted 	herself
in meetings 	it 	is 	concluded 	that 	if 	she did mention other 	aides
to Goddard, 	it was 	to tell her, 	not discuss with her, 	how they
were 	being 	rated.
29

In other words, 	it 	is 	concluded that 	the evaluation process
was not 	fair. 	That does not, 	however, 	answer the question of
whether 	the 	evaluations 	of 	Ross 	and Villar were 	retaliatory. 	A
closer 	look at 	their 	evaluations 	and 	the process 	is 	necessary
to 	answer 	that 	question.
Villar's 	Evaluation
Prior 	to Worden's 	arrival 	at Coldwater, 	Villar had
regularly 	received 	an overall 	rating 	of 	"exceeds." 	Worden's
overall 	rating 	of Villar was 	that 	she met 	job performance
standards. 	Although Worden modified many of 	the 	evaluations
prepared 	by Goddard 	based 	on 	teacher 	input, 	she 	did 	not 	make
any changes 	in 	the 	evaluation 	for Villar.
Govenar 	testified 	that 	he 	believed 	that 	Villar's
performance was 	not 	as 	outstanding 	as 	it 	had been 	in previous
years 	and 	he 	had marked 	down 	her 	overall 	rating 	because 	her
work habits 	had deteriorated. 	He 	thought 	she was 	absent more
often 	and 	that 	she 	caused 	difficulties 	because 	she 	did 	not 	make
timely 	reports 	as 	to whether 	she would be 	in on 	a 	particular
day. 	Govenar 	also marked Villar down 	in the category of
relationships with 	others. 	He 	testified 	that 	people 	had
expressed concerns 	to 	him 	about Villar's 	attitude 	out 	of 	class
and her 	performance 	as 	a playground 	supervisor. 	He was 	also
told 	that 	Villar was 	taking 	breaks 	when 	she wasn't 	supposed 	to
and 	he 	had 	heard disparaging 	rumors 	about 	letters 	and
30

lawsuits.16	16 In terms 	of 	the mechanics 	of 	her 	classroom
performance, 	he continued to 	rate her 	as 	"exceeds."
On 	the 	official 	form prepared 	by Goddard 	and 	her 	assistant,
Villar was 	marked 	as 	"exceeds" 	only 	in quality of work.
Govenar 	had marked 	her 	as 	"exceeds" 	in quality and 	quantity of
work when 	it was 	combined 	as 	one 	category on the 	form he 	had
been 	given. 	When his 	comments were 	transferred 	to 	the 	final
form, 	she was 	inexplicably marked down 	in 	the 	category of
quantity of work. 	Worden, 	however, 	stated 	that 	she would have
marked 	her 	down 	anyway.
Worden 	tried 	to 	explain the 	basis 	for 	her 	rating 	of Villar
in 	the category of 	quantity of work. 	Worden 	indicated 	that 	she
did 	not 	believe 	that 	students 	exited 	from Villar's 	program
quickly enough 	and 	that must 	have 	been 	a 	result 	of Villar*s 	not
preparing 	enough 	alternative ways 	for 	them to 	grasp 	concepts
necessary before 	they 	could 	be main streamed into 	English
speaking 	classes. 	Worden's 	explanation did not 	ring 	true. 	It
sounded 	as 	if 	she were 	reaching 	for 	a 	justification 	rather 	than
16 Although 	the 	contract 	between 	the 	Union 	and 	the
District 	did not 	provide break time 	for 	aides, 	aides
traditionally were 	afforded 	such 	a 	benefit 	at 	Coldwater. 	After
Villar 	complained 	about 	other 	contract 	infractions, 	however,
the District 	decided 	to 	eliminate 	break 	time. 	Moder
specifically 	admitted 	blaming 	Villar 	for 	the 	less 	favorable
working 	conditions. 	From 	the way 	the 	information was
communicated 	to Govenar, 	he 	apparently concluded 	that Villar
was 	taking 	unauthorized breaks. 	There 	is 	absolutely nothing 	in
the 	record 	to 	support 	that 	belief.
31

simply admitting 	that 	a mistake 	had 	been made. 	Her 	entire
explanation 	of 	the 	rating 	in 	the 	category of 	quantity of 	work
sounded 	like 	an 	appropriate 	articulation of 	a 	basis 	for
evaluating 	the teacher, 	not 	the bilingual 	aide. 	Villar
received 	a 	"meets" 	in the category of work habits 	because of
her 	absences. 	She 	also got 	a 	"meets" 	in 	relationships with
others, 	apparently because Worden did not 	see her 	as 	outgoing.
There were 	no 	explanatory comments 	on Villar's 	evaluation.
Worden 	indicated 	that 	she 	preferred 	making 	comments 	on
evaluations 	because 	it made 	them more 	personal 	and 	she 	thought
words were more 	communicative 	than categorical 	ratings. 	Worden
refrained 	from 	saying 	anything 	on Villar's evaluation, 	however,
because 	she didn't want 	to make 	any comments 	that might 	be
misconstrued. 	Worden 	testified 	there 	had 	been 	so 	many phone
calls 	and 	letters 	about Villar 	coming 	across 	her 	desk during
the 	school 	year 	that 	she 	didn't want 	to 	open 	any new 	subjects
for 	disagreement.
Ross' Evaluation
In her 	1982-83 	and 	1983-84 	evaluations, 	Betty Ross was
ranked 	as 	"exceeds work performance 	standards" 	in 	all
categories. 	In 	1984-85, 	her 	teacher gave her 	those 	same
ratings 	but 	they were 	dramatically changed 	by Pamela 	Worden,
who marked Ross 	down 	in work habits, 	relationships with others,
and her 	overall 	rating. 	As 	previously noted, 	in work habits,
the teacher had written 	"Always 	tried to be here, 	even 	if 	ill.
Very dependable." 	Worden, 	claiming 	that Ross' 	supervising
teacher 	had 	never worked with 	an 	aide 	and 	did 	not 	know how 	to
32

evaluate, 	marked Ross 	down 	and wrote 	in 	"attendance 	average."
In the category 	relationship with others, 	the 	teacher 	had
written 	"good 	relationship 	with 	students 	and with 	teacher."
Worden marked 	Ross 	down 	in 	that 	category 	and wrote 	down 	"Needs
to work on positive 	relationships 	with other 	staff 	members."
This 	last 	comment 	requires 	some 	background 	information.
Ross 	and 	other 	aides 	had 	been 	at 	odds with Rodie Greenberg 	the
previous 	school 	year 	regarding 	some 	comments 	allegedly made 	by
Greenberg. 	Fences 	had 	been mended 	between Greenberg 	and 	the
Spanish-surnamed 	aides, 	but 	not 	between Greenberg 	and Ross.
Ross 	testified 	that 	her 	attempts 	to 	be 	friendly had 	been
spurned 	by Greenberg. 	Even when they 	saw each other 	at 	a
wedding 	and 	Ross 	said 	hello, 	Greenberg 	acknowledged Ross'
husband only. 	Worden, 	however, 	seemed to hold Ross 	singly
responsible 	for 	any 	rift. 	Worden 	admitted 	that 	Greenberg 	spoke
to 	her 	almost 	daily 	and 	that 	Greenberg 	frequently made
disparaging 	remarks 	about 	Ross. 	Worden 	further 	admitted 	that
she 	never 	tried 	to 	talk 	to 	Greenberg 	about 	Ross 	and 	she 	never
directly discouraged 	her 	from bad-mouthing Ross. 	Yet, 	in
evaluating Ross, 	Worden 	admitted 	that 	she held 	it 	against 	her
that 	fences 	had 	not 	been mended with Greenberg. 	Worden
suggested 	that, 	since Greenberg was 	a 	powerful 	influence 	at 	the
school, 	it was 	incumbent upon Ross 	to make amends. 	Worden
tried 	to 	describe 	other ways 	in which 	Ross' 	relationships 	with
others 	left 	something 	to 	be desired but 	she 	could 	not 	come up
with 	anything 	specific.
33

III. 	ISSUES
A. 	Did 	the 	Respondent 	violate 	Government 	Code 	section
3543.5(a) 	when 	it 	rated 	Isis Villar's 	work performance 	during
the 	1984-85 	school 	year 	as 	"meets work performance 	standards"?
Did 	it 	also 	violate 	section 	3543.5(b)?
B. 	To what extent, 	if 	any, 	can matters outside the scope
of 	the 	unfair 	practice 	complaint 	pertaining 	to 	the 	performance
evaluation 	of 	Betty Ross 	be 	considered 	in 	this 	unfair 	practice
proceeding?
C. 	To what 	extent, 	if 	any, 	can matters outside the 	scope
of 	the unfair 	practice complaint, 	which were dismissed 	by 	the
regional 	attorney but 	not 	appealed 	to 	the 	Board 	itself,
pertaining 	to 	the 	removal 	of 	Isis Villar 	as 	a 	noontime 	aide
director, 	be 	considered 	in 	this 	unfair 	practice proceeding?
IV. 	CONCLUSIONS OF LAW
A. 	Isis Villar's 	Performance Evaluation
It 	is 	alleged 	that 	the 	District 	violated 	section 	3543.5(a)
by 	discriminating 	and 	retaliating 	against 	Villar 	because 	she
engaged 	in 	protected 	activity. 	The 	retaliation 	addressed 	in
the unfair 	practice 	complaint 	pertains 	to 	the 	overall
performance 	rating 	on Villar's 	1984-85 	job 	performance
evaluation. 	In order to prevail 	in this 	action, 	Villar 	and the
Union must 	establish 	that 	she 	engaged 	in 	protected 	activity 	as
defined 	under 	the Act, 	that 	the 	employer 	knew of 	such 	activity,
and 	that 	such 	activity was 	a motivating 	factor 	in 	the 	issuance
of 	the performance 	evaluation. 	Novato 	Unified 	School 	District
(1982) 	PERB decision No. 	210. 	In Novato, 	the Board noted that
34

"unlawful 	motive 	is 	the 	specific 	nexus 	required 	in 	the
establishment 	of 	a 	prima 	facie 	case." 	The 	Board 	noted 	further,
that direct 	proof 	of 	unlawful motivation 	is 	rarely possible.
Accordingly, 	unlawful motivation may be 	established by
circumstantial 	evidence 	and 	inferred 	from the 	record 	as 	a whole,
In the 	instant 	case, 	the Charging 	Party has 	no difficulty
establishing 	the 	first 	two 	prongs 	of 	the Novato 	test 	as 	the
District 	admitted Villar 	engaged 	in 	protected 	activity 	and 	its
knowledge of 	such 	activity 	is 	not 	disputed. 	As 	set 	forth 	at
length above, 	Villar was 	the union steward, 	the 	leader 	of 	the
paraprofessionals 	at 	Coldwater Canyon, 	had 	numerous 	discussions
with Worden 	regarding 	the 	status 	of 	education 	aides 	versus
teacher 	assistants, 	was 	the 	spokesperson 	for 	aides 	regarding
pay for 	the Jewish holidays 	and was 	perceived 	by Worden 	as 	a
troublemaker 	who 	was 	frequently 	overstepping 	the 	principal 	and
going 	to 	outsiders 	such 	as 	the Union 	and 	the Board 	of 	Education.
In terms 	of unlawful motivation, 	knowledge of 	protected
activity 	as well 	as 	other 	factors 	may support 	the 	inference 	of
such 	motivation. 	Other 	factors 	include 	the 	timing 	of 	the
employer's 	conduct 	in 	relation 	to 	the employee's 	protected
activity, 	the employer's disparate 	treatment 	of 	the employee,
the 	employer's 	departure 	from established 	procedures 	and
standards, 	the employer's 	inconsistent 	or contradictory
justifications 	for 	its 	action, 	failure 	to 	offer 	justification
to 	the 	aggrieved 	employee 	at 	the 	time 	the 	adverse 	action was
35

taken, 	or 	the 	proffering 	of 	exaggerated 	or 	vague 	and 	ambiguous
reasons 	for 	the 	action. 	Novato, 	supra; 	North Sacramento 	School
District 	(1982) 	PERB Decision No, 	264.
In the 	instant case, 	knowledge of Villar's 	extensive
protected 	activity was 	on Worden's 	mind while 	she was 	filling
out 	the 	evaluation 	form. 	In explaining why 	she 	put 	no 	comments
on Villar's 	evaluation, 	Worden made 	the 	following 	comments:
[B]y the 	time 	that 	this 	evaluation was
written, 	there had been many things 	that 	I
had 	seen cross my desk, 	coming 	from Mrs.
Villar 	— 	. . . 	through 	regional 	people,
through district 	people, 	through phone
calls, 	through all 	kinds 	of 	things 	. . . 	I
thought 	rather 	than 	have 	anything
misunderstood, 	I 	felt 	it 	better 	— 	. . . 	I
felt 	it best not to say anything 	. 	. 	.
The matters 	which 	came 	across 	Worden's 	desk concerning 	Villar,
which 	are part 	of 	the 	record, 	are 	complaints 	about 	non-payment
for 	the 	Jewish 	holidays 	and 	being 	shortchanged 	in 	paychecks.
Both 	those 	complaints 	involve Union 	representation. 	Other
matters 	involving Villar 	pertained 	to 	the 	dispute 	over 	the
employment 	of 	teacher 	assistants 	and visits 	by the Union to 	the
school. 	In addition, 	Worden 	received copies 	of 	the 	letters 	to
the 	President 	of 	the 	Board 	of 	Education 	and 	regional
administrators 	concerning 	aide 	safety 	and Villar's 	position 	as
noontime 	aide director. 	Finally, 	there was 	further Union
involvement 	over Villar's 	removal 	from the 	noontime 	aide
director's 	position, 	which was 	followed by her 	filing 	of 	a
grievance.
36

There 	is 	no 	contention by 	the District 	that 	any of 	the
above-mentioned 	activities 	were 	not 	protected. 	Although Worden
testified 	that 	she 	recognized 	the 	right 	of 	employees 	to
communicate with 	outsiders 	with 	respect 	to 	their 	grievances,
she 	openly 	admitted 	being 	displeased with 	such 	behavior 	when 	it
preceded 	attempts 	to 	resolve 	differences 	by dealing 	directly
with her. 	It 	is 	concluded 	that Worden was 	not 	pleased when 	her
employees 	called outsiders 	or 	administrators, 	regardless 	of
when 	they were 	called, 	because 	she 	expressed displeasure when
Villar 	called 	Sally Ramirez 	even 	though Villar 	had 	gone 	to
Worden 	first. 	Since Villar's 	activity was 	protected, 	and 	since
Worden 	admits 	that 	she 	found 	such 	protected 	activity
disagreeable, 	an 	inference of unlawful motivation 	is
established.
An 	inference 	of 	unlawful 	motivation 	is 	raised 	by other
facts 	as well. 	For example, 	there 	is evidence of disparate
treatment 	in 	that 	Isis Villar was 	the 	only education 	aide 	in
the 	1984-85 	school 	year who 	had no 	comments 	on her 	evaluation.
Moreover, 	the 	standards 	articulated 	for 	the evaluations 	of
aides were vague or 	ambiguous 	and, 	generally, 	were not
consistently 	applied.
Once 	the 	Charging 	Party establishes 	a 	prima 	facie 	showing
adequate 	to 	support 	the 	inference 	that 	the 	exercise 	of 	rights
guaranteed 	by 	the 	EERA was 	a 	motivating 	factor 	in 	the 	adverse
personnel 	action, 	the burden 	shifts 	to 	the District 	to 	prove
that 	its 	action would have 	been 	the 	same 	despite 	the 	protected
activity. 	Novato, 	supra. 	In the District's defense, 	the
37

evidence 	strongly 	suggests 	that 	the 	standards 	used 	by Worden
were 	different 	from those 	employed 	by Strole, 	and 	employees
could 	not 	automatically expect 	a 	rating 	of 	"exceeds 	job
performance 	standards." 	In addition, 	there 	is 	some 	support 	for
the District's 	position 	that Villar's 	job performance 	in 	the
1984-85 	school year was 	not 	as 	exemplary 	as 	it was 	in previous
years, 	because Govenar, 	who had 	rated her 	the previous 	two
years, 	gave her 	a 	lower 	rating 	in 1984-85. 	Nevertheless,
Worden made 	it 	clear 	that 	her 	evaluation was 	completely
independent of Govenar's. 	Moreover, 	the undersigned 	is not
convinced 	Govenar's 	evaluation was 	not 	tainted 	by 	the 	same 	non
job-related 	factors 	which 	influenced Worden.
In the 	last 	analysis, 	it 	cannot 	be concluded 	that 	the
District 	established 	that 	Villar 	would 	have 	received 	the 	same
evaluation 	even 	had 	she 	not 	engaged 	in protected 	activity.
Worden's 	standards were 	too 	illusory for 	her 	to 	convince 	the
undersigned 	either 	that 	Villars 	activism did 	not 	impact 	upon
her 	evaluation or 	that 	job-related 	considerations 	led 	to 	her
evaluation. 	Although 	there might 	have 	been permissible
subjective 	factors which 	led 	to Villar's 	evaluation, 	the
District 	did 	not meet 	is 	burden 	in establishing 	them.
Accordingly, 	it 	is 	found 	that 	the District 	retaliated 	against
Villar when 	it 	issued 	her 	1984-85 	performance 	evaluation.
Since 	Villar's 	protected 	activity 	involved 	seeking 	Union
representation 	and 	filing 	a 	grievance, 	the District's 	action
38

also violated 	section 3543.5(b). 	By her verbal 	admonitions 	and
her 	actions, 	Worden 	repeatedly discouraged 	employees 	from
seeking 	Union 	representation 	and 	interfered with 	the 	Union's
ability 	to 	carry out 	its 	statutory 	right 	and 	responsibility 	to
represent 	employees.
B. 	Betty Ross' 	Evaluation
1. 	The Rules 	for 	Unalleged Violations
The PERB has 	long 	held 	that, 	under 	limited circumstances,
allegations 	regarding 	violations 	not 	set 	forth 	in 	the
Charge/Complaint 	may be 	considered 	in 	the 	disposition 	of 	an
unfair 	practice 	proceeding. 	In 	Santa 	Clara Unified 	School
District 	(1979) 	PERB Decision No. 	104, 	the Board held that 	an
Unalleged violation may be 	reached 	if: 	(1) 	it 	is 	intimately
related 	to 	the 	subject matter of 	the complaint; 	(2) 	the 	facts
are part 	of 	the 	same course of 	conduct; 	and 	(3) 	the Unalleged
violation 	is 	fully 	litigated 	and 	the 	parties 	have 	had 	the
opportunity 	to 	examine 	and 	cross-examine 	the witnesses 	on 	the
issue.
In 	Santa 	Clara 	the 	charged 	violation was 	a 	discriminatory
refusal 	to 	hire. 	The uncharged violation 	concerned 	remarks
made during 	the 	conversation when 	employment was 	denied. 	In
San Ramon Valley Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	230, 	the Board 	reversed 	an 	administrative 	law judge's
finding 	of 	a 	violation based 	upon 	Unalleged 	coercive
statements. 	The 	alleged 	statements 	were 	introduced 	as 	evidence
of 	illegal motive 	for 	the 	alleged violations, 	but 	there was 	no
39
•

indication 	at 	the 	hearing 	that 	the Charging 	Party was 	seeking 	a
separate 	finding 	of 	an unfair 	practice 	based 	upon 	those
statements. 	In fact 	the 	respondent 	in that 	case objected 	to
the 	statements 	except 	as 	evidence of 	unlawful motive. 	The
Board 	concluded 	that 	finding 	an unfair 	practice 	on 	that 	basis
denied 	the District 	"its 	right 	to 	be 	fully 	informed 	of 	charges
brought 	against 	it 	and 	to 	have 	a 	full 	and 	fair 	opportunity to
defend such charges." 	(Id. 	at 	10.) 	In Belridge School
District 	(1980) 	PERB Decision No. 	157, 	however, 	the Board did
make 	a 	finding with 	respect 	to 	an Unalleged violation where 	the
record 	showed 	the 	matter 	was 	fully 	litigated.
In the final 	analysis, 	a 	review of 	all 	the cases 	indicates
that 	the 	primary 	issue 	in determining whether 	it 	is 	appropriate
to make 	findings 	on 	an Unalleged violation 	is whether 	to do 	so
would 	be 	fair.
2. 	The Application of 	Santa 	Clara 	to 	the 	Instant 	Case
Somewhat 	early 	in the 	formal 	hearing 	of 	this matter, 	the
the 	parties 	were 	advised 	that 	the 	undersigned was 	interested 	in
the 	evaluation 	of 	Betty Ross 	and 	had 	questions 	regarding 	the
circumstances under which 	it was 	issued. 	Thus, 	the Respondent
was 	on notice 	that 	an 	independent 	inquiry was 	being made.
Also, 	the 	factors 	relevant 	to determining whether 	or 	not 	there
was 	an 	inference 	of 	unlawful 	motivation 	necessarily 	required
comparing 	Villar's 	evaluation 	and 	the 	process 	that 	led 	to
issuance 	of 	the 	evaluations 	of 	other 	similarly-situated
employees.
40

For 	the 	foregoing 	reasons, 	allegations 	pertaining 	to Ross'
evaluation were 	fully 	litigated 	and 	each 	side 	had 	an
opportunity 	to 	examine 	and 	cross-examine witnesses 	on 	the
issue. 	Moreover, 	prior to the close of 	the hearing, 	Respondent
was 	advised 	of 	the Charging 	Party's 	intention 	to move 	for 	an
amendment 	to 	the Complaint. 	At 	such time, 	the Respondent was
not 	precluded 	from calling 	additional 	witnesses 	on 	the 	question
of 	Ross' 	evaluation 	and 	it 	elected 	not 	to 	do 	so.
Although the matter was 	fully 	litigated, 	it 	is 	still
concluded 	that 	the Union 	should 	not 	be 	allowed 	to 	prevail.
Ross 	protested her 	evaluation 	in June 	1985, 	claiming 	it was
issued 	in 	retaliation 	for 	protected 	activity. 	No 	satisfactory
explanation has 	been given 	as 	to why 	she was 	not 	part 	of 	the
original 	Unfair 	Practice Charge. 	Although what 	happened 	to
Ross 	stems 	from the 	same 	factors 	that 	led 	to 	the discrimination
against Villar, 	allowing 	an 	amendment 	to 	include Ross would do
a 	disservice 	to 	the 	statute 	of 	limitation provisions 	of 	the
Act. 	Regents 	of 	the University of California 	(UCLA) 	(1983)
PERB Decision No. 	267. 	Thus, 	notwithstanding the proof, 	the
amendment will 	not 	be 	allowed.
C. 	The 	Position of 	Noontime Aide Director
The 	question of whether 	or 	not 	PERB 	should 	entertain 	an
allegation pertaining 	to Villar's 	removal 	from the 	position 	of
noontime 	aide 	director 	is 	complex 	and 	not 	easily 	resolved. 	The
matter was 	raised 	in the 	original 	Unfair 	Practice Charge 	filed
on September 	18, 	1985. 	The 	issue was 	elaborated upon 	in the
41

First Amended Unfair 	Practice 	Charge 	filed 	on October 	30,
1985. 	By letter dated November 25, 	1985, 	the board agent
charged 	with 	responsibility 	for 	investigating 	the 	Unfair
Practice 	Charge 	dismissed 	the 	allegations 	pertaining 	to 	the
noontime 	aide 	director 	position 	and 	advised 	the 	Charging 	Party
of 	its 	right 	to 	appeal the 	refusal 	to 	issue 	a complaint. 	The
allegations 	pertaining 	to 	the 	noontime 	aide 	director 	position
were 	dismissed 	because 	the 	Charge 	failed 	to 	specify 	the
protected 	activity 	engaged 	in 	by Villar 	prior 	to 	her 	removal.
The Charging 	Party elected 	not 	to 	appeal 	the partial 	dismissal.
On 	the 	first 	day of 	the 	formal 	hearing 	in 	this 	matter,
counsel 	for 	the 	Charging 	Party was 	asked 	if 	the matter
regarding Villar's 	removal 	from the 	noontime 	aide 	director
position was 	going 	to 	be 	pursued 	as 	an 	independent 	violation.
The discussion which took place on 	that matter 	is 	set 	forth, 	in
relevant part, 	below.
ALJ: 	Mr. 	Paule, 	you are not going to
attempt 	to 	argue 	at 	some 	point 	in time 	that
you 	have 	established 	an 	Unalleged violation
with 	respect 	to 	the 	removal 	from the 	noon
aide position, 	are you?
MR. 	PAULE: 	Your honor, 	our position is 	that
there were 	a number 	of 	incidents 	that 	took
place 	that 	led 	to 	culmination of 	having 	the
performance 	evaluation changed. 	The
Regional 	Attorney has 	already 	ruled 	that 	as
far 	as 	the 	removal 	from the Noon Aide
Director 	position 	as 	being 	a 	separate 	and
independent 	charge, 	the Regional Attorney
has 	already 	ruled 	that 	it 	cannot 	be.
However, 	it 	is our position that 	it 	is
perfectly 	appropriate 	to 	still 	present
evidence with 	respect 	to 	that 	to 	show 	a
background 	to 	the 	eventual 	incident 	that
42

occurred with 	respect 	to 	the 	performance
evaluation.
ALJ: 	Okay. 	I 	mean, 	this 	is 	— perhaps 	I
should 	not 	discuss 	my own quandary in 	this
matter. 	It 	is 	clear 	to me that 	if 	the
regional 	attorney dismisses 	a 	charge 	and
that 	dismissal 	is 	appealed 	to 	the 	Board,
that 	I 	have no 	jurisdiction to 	reinvoke 	it.
It 	is 	not 	entirely clear 	to me whether 	or
not 	I 	could 	reinvoke the charge or make 	a
finding 	on 	an Unalleged 	violation when 	that
matter 	is 	not 	pending 	before 	the 	Board 	and
therefore, 	I 	am not 	robbed of 	jurisdiction,
and 	that's why 	I wanted 	to 	get you 	to 	answer
directly 	rather 	than 	circuitously my
question 	as 	to whether 	or 	not you 	intended
to 	attempt 	to 	establish 	an Unalleged
violation.
MR. 	PAULE: 	Not 	as 	an independent 	allegation.
ALJ: 	Okay.
MR. 	PAULE: 	We 	are presenting evidence with
respect 	to 	the 	removal 	as well 	as 	other
incidents 	that 	go 	to 	background 	to 	add
flavor, 	if you will, 	and to further support
the 	eventual 	action 	that was 	taken with
respect 	to 	the 	performance 	evaluation.
Notwithstanding 	the discussion 	set 	forth 	above, 	by 	the 	time
the 	hearing 	concluded, 	the Charging 	Party was 	urging 	the
undersigned 	to make 	a 	finding with 	respect 	to whether 	or 	not
Villar's 	removal 	from the 	position of 	noontime 	aide director
was 	in 	retaliation 	for 	her 	protected 	activity. 	Indeed,
throughout 	the 	hearing, 	both 	sides 	submitted 	a 	substantial
amount 	of 	evidence with 	respect 	to Villar's 	removal 	from the
position. 	As 	set 	forth 	in some detail 	above, 	the evidence went
far 	beyond what 	would 	have 	been 	necessary 	in 	order 	to 	provide
background material 	or 	to 	establish 	the 	context 	in which 	the
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evaluation was 	issued.
It 	appears 	to 	the 	undersigned 	that 	the matter was 	fully
litigated 	and 	the 	Charging 	Party 	established 	that 	VILLAR 	was
removed 	from her 	position 	as 	noontime 	aide 	director 	because 	of
her 	protected 	activity. 	Nevertheless, 	it may be 	the Respondent
would 	have 	proceeded 	differently 	if 	the 	Charging 	Party had
clearly 	indicated 	its 	intention 	to 	move 	forward 	independently.
Given 	the Charging 	Party's 	specific 	denial 	that 	the 	noontime
aide director's 	position was 	an 	issue, 	the Unalleged charge
should 	not 	be 	allowed.16	16
V. 	REMEDY
The 	District 	has 	been 	found 	to 	have 	violated 	section
3543.5(a) 	and 	3543.5(b) 	of 	the EERA by discriminating 	against
Isis Villar 	because 	of 	the 	exercise 	of 	rights 	guaranteed 	to 	her
by the EERA. 	In 	retaliating 	against Villar, 	the District 	also
denied 	and 	interfered with 	the 	rights 	of 	SEIU protected 	by 	the
Act.
In section 3541.5(c) 	the PERB 	is 	given the power 	and
authority 	to 	issue 	cease 	and 	desist 	orders 	and 	to 	order 	parties
to 	take 	such 	affirmative 	action 	as will 	effectuate 	the 	purposes
. .
16 Based upon 	the 	authority 	in Rivcom Corp. 	v.
Agricultural Labor Relations Board 	(1983) 	34 Cal.3d 743, 	it
appears 	that 	the 	Board 	could 	entertain 	the 	Unalleged 	violation
even though 	it was 	previously dismissed. 	Although 	it 	is
unnecessary to 	reach that 	issue 	in this 	case, 	to 	avoid
uncertainty 	in the 	future, 	if 	Regional Attorney dismissals 	are
intended 	to 	preclude 	raising 	the 	issues 	at 	a 	future date,
perhaps 	they should 	issue with 	a 	statement 	to 	that 	effect 	and
"without 	leave 	to 	amend."
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of the Act. 	Therefore, 	in the instant case, 	it 	is 	appropriate
to order 	the District to cease and desist, 	in general, 	from
conduct 	found 	to 	be 	in violation of 	the Act 	and 	to, 	more
specifically, 	cease 	and desist 	from discriminating 	against, 	and
interfering with, 	employees 	because of 	their 	exercise of 	rights
guaranteed 	by 	the Act.
In terms 	of Villar's 	evaluation 	for 	the 	1984-85 	school
year, 	it 	is 	determined that 	the evaluation 	should be 	removed
from Villar's 	personnel 	file, 	and other 	official 	files where 	it
might 	be 	kept, 	and destroyed. 	The questions 	then presented 	are
whether 	and 	how to 	evaluate Villar. 	Worden has 	demonstrated
that 	she 	did 	not 	fairly evaluate Villar 	in 	the 	past 	and 	there
is 	serious 	question 	as 	to whether 	she could do 	so 	in the
future. 	It may be equally difficult 	for 	someone 	else 	to 	become
involved 	in the process 	at 	this 	late date. 	Nevertheless,
Villar 	is 	entitled 	to 	an evaluation 	and 	the District must 	be
required 	to 	separate 	its 	anti-union 	prejudice 	from the
evaluation process. 	Accordingly, 	if Villar wants 	an evaluation
for 	the 	1984-85 	school year, 	the District 	should develop
non-discriminatory 	criteria 	for 	Villar's 	evaluation 	and
designate 	an 	individual 	to 	conduct 	that 	evaluation 	in 	a 	manner
free 	from anti-union bias.
It 	is 	also 	appropriate 	that 	the District 	be 	required 	to
post 	a 	notice 	incorporating 	the terms 	of 	the order. 	The notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
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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 	employer 	has 	acted
in 	an unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and desist
from this 	activity. 	It 	effectuates 	the purposes 	of 	the Act
that 	employees 	be 	informed 	of 	the 	resolution of 	the 	controversy
and will 	announce 	the 	employer's 	readiness 	to 	comply with 	the
ordered 	remedy. 	See 	Placerville Union 	School 	District 	(1978)
PERB Decision No. 	69. 	In Pandol 	and Sons v. 	Agricultural Labor
Relations Bd. 	(1979) 	98 Cal.App.3d 580, 	587 the California
District 	Court 	of Appeals 	approved 	a 	similar 	posting
requirement. 	NLRB v. 	Express Publishing Co. 	(1941) 	312 U.S.
426 	[8 LRRM 415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire 	record 	in 	this 	case, 	it 	is 	hereby ORDERED that
the District, 	its 	governing 	board 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
(1) 	Discriminating 	against, 	and interfering with, 	Isis
Villar 	because 	of 	her 	exercise 	of 	rights 	guaranteed 	by 	the
Educational 	Employment 	Relations 	Act.
(2) 	Denying 	to 	the Los Angeles 	City and County School
Employees Union, 	Local 99, 	SEIU, AFL-CIO, 	rights guaranteed by
the Educational 	Employment 	Relations Act.
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B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
(1) 	Remove 	and destroy the 	1984-85 	evaluation of 	Isis
Villar 	from her 	personnel 	file 	and 	any other 	District 	file
where 	it 	is maintained.
(2) 	If Villar wants 	an evaluation for 	the 	1984-85
school year, 	the District must 	develop 	non-discriminatory
criteria 	for 	that 	evaluation 	and 	designate 	an 	individual 	to
conduct 	the 	evaluation without 	regard 	to 	Villar's 	protected
activity.
(3) 	Within ten 	10 workdays 	from service of 	the 	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 Notice 	attached hereto 	as 	an Appendix.
The Notice must 	be 	signed 	by 	an 	authorized 	agent 	of 	the
District 	indicating 	that 	the 	District 	will 	comply with 	the
terms 	of 	this 	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.
(4) 	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 	instructions.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become 	final 	unless 	a party files 	a 	statement 	of 	exceptions
with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento
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within 20 	days 	of 	service of 	this 	Decision. 	In 	accordance with
PERB Regulations, 	the 	statement 	of 	exceptions 	should 	identify-
by page 	citation 	or 	exhibit 	number 	the 	portions 	of 	the 	record,
if 	any, 	relied upon for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
the 	close of 	business 	(5:00 	p.m.) 	on 	the 	last 	day set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express 	United 	States 	mail, 	postmarked not 	later 	than 	the 	last
day 	set 	for 	filing 	. . . " 	See 	California 	Administrative 	Code,
title 	8, 	part 	III, 	section 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply. 	Any statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany each 	copy 	served 	on 	a 	party 	or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	part 	III,
sections 	32300, 	32305 and 32140.
Dated: December 31, 198 6
Barbara E. 	Miller
Administrative 	Law 	Judge
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