Los Angeles Community College District (PERB 0748E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
ROBERT RAY BRADLEY,
Charging 	Party,
v.
LOS ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
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) 	Case No. LA-CE-2 386
PERB Decision No. 	748
June 28, 	1989
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Appearance: 	Robert R. 	Bradley, 	on his own behalf.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the charging party, 	Robert Ray Bradley, 	to the proposed decision,
attached hereto, 	of a PERB administrative law judge 	(ALJ). 	The
ALJ 	found that the 	respondent, 	Los Angeles 	Community College
District, 	did not violate the Educational 	Employment Relations
Act 	(EERA) 	section 	3543.5(a) 	in that 	it neither 	interfered with
Bradley's protected right to 	file grievances, 	nor retaliated
against him 	for 	filing a 	grievance.1
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.5 provides, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise of 	rights
guaranteed by this 	chapter.
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1EERA

We 	have 	carefully reviewed the 	entire record, 	including 	the
proposed decision, 	the transcript, 	and the exceptions 	filed by
the 	charging party. 	Finding the ALJ's 	findings 	of 	fact 	and
conclusions 	of 	law free of prejudicial 	error, 	we adopt them as
the decision of 	the Board itself. 	Further, 	we 	find no 	evidence
in the 	record of 	any bias 	or prejudice by the ALJ, 	and thus 	we
reject 	any notion that her decision 	is 	flawed due 	to bias.
ORDER
The unfair practice 	charges 	in Case No. 	LA-CE-2386 	are
hereby 	DISMISSED.
Members 	Shank and Camilli 	joined 	in this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROBERT 	RAY BRADLEY,
Charging 	Party,
v.
LOS ANGELES 	COMMUNITY
COLLEGE 	DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-2386
PROPOSED 	DECISION
(2/6/89)
Appearances: 	Robert Ray Bradley, 	on his own behalf; 	Warren S.
Kinsler, 	General Counsel, 	and James H. 	Aguirre, 	Assistant General
Counsel, 	for Los Angeles Community College District.
Before Barbara E. 	Miller, 	Administrative Law Judge
I. 	PROCEDURAL HISTORY
On May 20, 	1986, 	Robert Ray Bradley 	(hereinafter Charging
Party or 	Bradley) 	filed three unfair 	practice 	charges 	against 	the
Los 	Angeles 	Community College 	District 	(hereinafter 	Respondent,
District or LACCD). 	Those cases were identified as Case Nos.
LA-CE-2386, 	LA-CE-2387 and LA-CE-2388. 	In Case No. 	LA-CE-2387,
Bradley 	alleged 	that 	the 	District 	released 	a 	confidential
document which 	Bradley 	had 	submitted 	in 	conjunction with 	a
grievance. 	Bradley 	further 	alleged that 	such 	action 	interfered
with his 	rights 	and 	constituted retaliation 	for 	his 	exercise 	of
rights 	guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act
(hereinafter EERA).1 On July 9, 	1986, 	Bradley filed an amendment
The 	Educational 	Employment Relations Act 	is 	codified
beginning at Government Code 	Section 	3540. 	Unless 	otherwise
indicated, 	all 	statutory references 	are 	to the Government Code.
Section 3543.5 provides, 	in relevant part, 	as follows:
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. 	_ _ _ _ ^ ^
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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.
to Case 	No. 	LA-CE-2386, 	requesting that allegations 	set 	forth 	in
Case No. 	LA-CE-2387 and Case No. 	LA-CE-2388 be incorporated
therein. 	The amendment was 	accepted and Case Nos. 	LA-CE-2387 	and
LA-CE-2388 	were withdrawn. 	The unfair practice 	charge was 	again
amended on December 	19, 	1986. 	Thereafter, 	on December 24, 	1986,
a 	Complaint 	issued 	alleging 	that 	the 	release 	of 	confidential
information 	interfered with 	Bradley's 	rights 	in violation 	of
section 3543.5(a).
The 	Complaint did not 	allege 	that 	the 	release 	of
confidential 	information was 	retaliation 	for 	Bradley's 	protected
activity but 	that 	allegation 	also was 	not 	addressed 	in 	the
written dismissal.2 Other aspects 	of 	the unfair practice 	charge,
the 	substance of which are not relevant here, 	were dismissed.
The 	dismissal 	of 	those matters was 	appealed to 	the 	Board 	itself.
On January 	13, 	1987, 	while the appeal of the dismissal was
pending before 	the 	Board, 	the 	Respondent 	filed 	its 	answer 	to 	the
2Section 32630 of PERB's regulations, 	California
Administrative Code, 	title 8, 	part III, 	provides that, when a
Board agent refuses 	to issue a complaint, 	the refusal will
constitute 	a dismissal 	of the 	charge. 	The 	section requires 	that
such a refusal be 	set forth in writing. 	It states, 	"The refusal,
including a 	statement of 	the grounds 	for refusal, 	shall 	be 	in
writing 	and 	shall 	be 	served 	on 	the 	charging 	party 	and
respondent."
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Complaint. 	Thereafter, 	an informal 	settlement conference was
conducted on February 	10, 	1987. 	When the parties were unable 	to
resolve 	their dispute, 	the 	Respondent requested and was 	granted a
stay of 	all 	proceedings 	pending a decision of 	the 	Board 	itself 	on
the 	Charging Party's 	appeal 	of 	the 	aforementioned dismissal.
After 	the 	Board 	issued 	Los Angeles 	Community College 	District
(1987) 	PERB Decision No. 	617, 	in which it affirmed the written
dismissal, 	the 	instant case was reactivated. 	On July 8, 	1988,
the matter was 	assigned to the undersigned. 	Thereafter, 	the
parties 	participated 	in 	additional 	settlement 	discussions 	which
were unsuccessful.
A pre-hearing conference was 	conducted on October 	6, 	1988,
and the 	formal 	evidentiary hearing on October 	19 	and 20, 	1988.
Thereafter, 	the 	parties 	filed 	simultaneous 	post-hearing briefs
and 	the 	matter was 	submitted 	for proposed decision 	on 	January 	24,
1989.
II. 	FINDINGS OF FACT
Robert 	Bradley 	is 	an employee 	and 	the 	LACCD 	is 	an employer
as 	those terms 	are defined in the 	EERA. 	At all 	times 	relevant
herein, 	Robert 	Bradley 	served as 	a professor in the 	Business
Administration Department of 	Los Angeles 	Pierce College, 	one 	of
the 	nine 	colleges which 	comprise 	the 	Los Angeles 	Community
College 	District. 	For at 	least 	some of the time relevant herein,
Bradley 	served 	as 	the 	chairperson 	in 	the 	Business 	Administration
Department. 	As 	a professor and as 	department 	chairperson,
Bradley was 	in 	a 	system wide 	collective bargaining unit of
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certificated 	employees. 	The AFT College 	Guild 	(hereinafter 	Union
or Guild) 	is 	the exclusive representative of that unit. 	The
Union 	and 	the 	District are 	parties 	to a 	series 	of 	collective
bargaining agreements. 	At the time 	the 	instant dispute 	arose,
the 	collective 	bargaining relationship was 	covered by 	an
agreement effective 	from October 	12, 	1983 	through October 	12,
1986.
At the District's Pierce College, 	the Business
Administration 	Department 	and 	the 	Office 	Administration
Department 	share 	two 	faculty 	complexes 	and 	their main 	offices 	are
quite 	close 	to one 	another in the 	same 	facility. 3 Beginning as
early as 	1981, 	Bradley made 	allegations 	about improprieties 	in
the Office Administration Department, 	including, 	but not limited
to, 	accusations of personnel mismanagement, 	illegal 	and/or
improper 	staffing of 	classes with unqualified personnel, 	and the
illegal 	and 	false reporting of 	student 	attendance data.
According to Jean Loucks, 	acting president at Pierce College 	at
the 	time of 	the 	formal hearing, 	Bradley began making 	such
allegations 	back in 	1981 	or 	1982 when 	she was 	the Assistant Dean
of 	Instruction. 	Bradley renewed 	the 	allegations 	every year
thereafter, 	including 1985, 	when Loucks 	served as the Vice
President 	for Academic Affairs.
3At 	some times relevant herein, 	the Office Administration
Department may have 	been 	called 	the 	Secretarial 	Science
Department. 	In order to avoid confusion, 	for purposes 	of this
Proposed Decision, 	it will 	be referred to as 	the Office
Administration 	Department.
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Bradley's 	complaints 	about 	the 	Office Administration
Department were well 	known to members 	of 	that department 	and
members 	of 	the Business Administration Department as well. 	The
precise way in which Bradley's 	colleagues 	knew of 	each of 	his
complaints 	is not documented in the record, 	although Bradley
admitted he 	let 	some of his 	colleagues know of his 	concerns.
Moreover, 	the record does reflect that members 	of 	the Office
Administration 	Department were 	involved 	in 	formulating 	responses
to Bradley's written complaints 	and accusations. 	In addition,
the documentary record reflects 	that, 	in April of 	1982, 	a faculty
member 	in 	the 	Business 	Administration 	Department wrote 	Bradley,
advising him 	that 	his 	tactics 	vis-a-vis 	Office Administration
"violated 	the 	sensibilities 	of 	society." 	Bradley was 	further
told that his 	approach was 	"hostile 	and acrimonious" 	and 	that his
allegations 	of 	"possible 	fraud" 	were defamatory.
On September 22, 	1984, 	Bradley sent a letter to the then
president of Pierce College, 	Herbert Ravetch, 	noting that 	30
months 	had 	elapsed 	since 	Bradley's 	report 	of 	criminal 	activity 	on
campus 	had been 	submitted 	and 	that 	no 	action had been 	taken
either 	to 	correct 	the matter or report 	it 	to the 	proper 	law
enforcement agencies. 	Bradley requested a meeting which was 	held
on October 15, 	1984.
On October 	16, 	1984, 	the chairperson of the Office
Administration Department, 	who had 	attended the 	aforementioned
meeting with Bradley and Ravetch, 	and two members 	of 	the
department, 	addressed a 	joint memorandum to Ravetch, 	complaining
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about 	Bradley's 	allegations 	that 	they had 	engaged 	in 	criminal
activity. 	They demanded a written apology 	from Bradley. 	The
letter was 	signed by each member of 	the 	department.
On November 	9, 	1984, 	Ravetch issued two 	separate memoranda
to 	Bradley. 	The 	first 	indicated that 	since 	Bradley had not 	come
forth with additional 	facts 	to 	support his 	allegations, 	Ravetch
would presume 	the 	results 	of 	the 	exonerating 	investigation were
correct. 	In the 	second memorandum, 	Ravetch urged Bradley to
consider 	actions 	which would repair his 	relationship with 	the
membership of 	the 	Office Administration Department. 	The 	record
does 	not reflect whether the matter was 	pursued at 	that 	time.
Then, 	sometime during the 	spring of 	1985, 	management at
Pierce 	College announced the 	transfer of 	a teacher, 	Sylvia Cohen,
from 	the 	Office Administration Department 	to 	the 	Business
Administration 	Department. 	The 	District 	apparently 	justified 	the
transfer 	on the 	ground 	that 	the 	Office Administration 	Department
was 	over-staffed. 	On May 	2, 	Bradley 	filed a grievance protesting
Cohen's 	transfer. 	Bradley objected on the 	ground that 	the
transfer would result 	in 	the 	layoff 	of 	part-time 	personnel 	in
Business Administration. 	He 	also 	alleged that 	the Office
Administration 	Department 	only appeared 	to be 	over-staffed 	as 	a
result 	of 	its 	illegal 	use 	of 	classified 	and not 	credentialed
teachers.
Pursuant 	to 	the 	grievance-arbitration provisions 	of 	the
contract between the 	Union and the 	District, 	a Step One grievance
conference was held on May 	16, 	1985, 	in Loucks' 	office. 	Bradley
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was 	in attendance, 	accompanied by Eloise Crippens, 	his 	Union
representative. 	On May 22, 	1985, 	Loucks responded to the
grievance, 	finding no wrongdoing but 	indicating that 	Bradley's
suggested remedy, 	the 	rescission of 	the 	complained-of 	transfer,
was 	granted 	in part; 	Sylvia Cohen would be 	transferred to
Business Administration on a 	40% 	rather than a 	100% basis.
Bradley 	filed an appeal 	of 	the 	Step One 	adjudication of 	his
grievance on May 24, 	1985. 	On August 29, 	1985, 	the new president
of the 	college, 	David Wolf, 	wrote a memorandum to Bradley
indicating 	that 	the 	grievance 	had 	been 	thoroughly 	reviewed 	and
that he 	concurred 	in the 	Step One 	proposed resolution.
Thereafter, 	Bradley notified the 	Union that he wanted to
take 	the case 	to arbitration. 	Pursuant to the 	contract, 	Bradley
could 	only 	invoke 	arbitration 	himself 	if 	the 	Union 	approved 	of
his 	effort. 	The District asserts 	that neither the 	Union nor
Bradley 	initiated 	the 	final 	phase 	of 	the 	grievance-arbitration
procedure. 	No 	evidence was 	produced by Bradley to 	show that 	the
grievance 	formally progressed 	after 	the 	termination 	of 	Step 	Two.
Nevertheless, 	Bradley testified that 	although 	the 	Union had not
affirmatively 	advised him 	that 	the 	matter was 	going 	to
arbitration, 	he 	believed that 	subsequent developments 	were
consistent with 	the 	continued processing of 	the 	matter.
In 	September 	1985, 	Bradley and Crippens met with Virginia
Mulrooney, 	the 	then vice-chancellor responsible 	for 	labor
relations, 	to discuss the grievance. 	Pursuant to a request or
suggestion by Mulrooney, 	Bradley prepared a memorandum, 	addressed
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to Crippens, 	which identified his 	grievance as 	the 	subject.
(Hereinafter, 	the memorandum to Crippens will 	be referred to as
the 	September memo.) 	In the 	September memo, 	Bradley 	specifically
identified, 	by name, 	student workers 	and/or teaching aides who,
he 	claimed, 	were 	teaching Office Administration 	classes
illegally. 	Bradley 	also detailed 	the way 	in which 	improper
assignments 	and 	the 	use 	of 	false 	attendance data 	had 	contributed
to 	the 	perceived need 	to reassign 	Sylvia 	Cohen.
Bradley did not write 	the word 	"confidential" 	on the
September memo. 	Moreover, 	nowhere 	in the text of the September
memo does 	it 	state 	that the memo or its 	contents 	are
confidential. 	Nevertheless, 	as will be 	set forth in more detail
below, 	Bradley, 	and some administrators who testified, 	indicated
that 	it was 	their understanding that 	grievance matters were
generally 	treated as 	confidential.4
Bradley gave 	a 	copy of 	the 	September memo to 	Eloise
Crippens, 	believing 	she would transmit 	it to Mulrooney in
furtherance 	of his 	grievance. 	He 	also 	left a 	copy of 	the
September memo at 	the 	office 	of 	David Wolf. 	Bradley testified
that he 	left 	a 	copy with the 	president because 	he 	thought 	it was
4No written 	rule 	or regulation was 	introduced 	into 	evidence
and 	no witness 	testified 	about 	a 	rule 	or 	regulation which
required 	or 	suggested that 	grievance 	materials 	should be 	kept
confidential. 	Similarly, 	the 	collective bargaining contract 	is
silent on the 	subject. 	The only provision of 	the 	contract 	found
by 	the 	undersigned 	to be 	arguably related 	to 	the 	matters 	at 	issue
herein 	provides 	that documents 	submitted 	in connection with 	a
grievance will 	be 	filed 	in the 	Office 	of 	Staff 	Relations 	and will
be kept 	separate 	from personnel 	files.
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customary 	to 	transmit documents 	to the 	previous 	level 	of 	review
in the 	grievance 	process. 	David Wolf 	launched an 	investigation
of Bradley's 	allegations.5
On or before October 	7, 	1985, 	Wolf directed Jean Loucks 	to
get 	the 	chairperson of 	the 	Office Administration Department 	to
respond to 	the 	allegations 	set 	forth in the 	September memo. 	From
the 	testimony offered by Loucks, 	I 	conclude that 	she had no
present recollection regarding the 	status 	of 	the 	grievance 	in
1985, 	although it appears 	that in 	1985 	Loucks 	thought Bradley had
an active grievance. 	In any event, 	on October 7, 	Loucks 	sent a
copy of 	the 	September memo to Don Love, 	the Dean of Academic
Affairs 	with 	the 	following directive:
It is 	imperative 	that we 	attempt to 	stop this
immediately. 	Mr. 	Bradley is 	continuing his
harassment 	of 	the 	Office Administration
Department to the 	detriment of 	the 	college.
Please 	have 	Ellen Anderson 	respond
immediately to each point 	so that 	I 	can
respond to David Wolf 	and the AFT. 	(Emphasis
added.)
Thus, 	whether or not the grievance was active, 	Loucks' 	letter,
quoted above, 	makes 	it 	clear that 	she believed the 	Union was
still 	actively 	involved 	in 	Bradley's 	dispute.
On October 8, 	1985, 	Love transmitted the September memo to
Ellen Anderson, 	the 	chairperson of the Office Administration
The 	record does not disclose 	if Wolf was working with
Mulrooney or 	following through on his 	own. 	Similarly, 	the record
is 	silent with respect 	to 	the 	question of whether 	or 	to what
extent 	the 	Union was 	involved 	in Wolf's 	investigation. 	Neither
Wolf, 	Mulrooney, 	nor Crippens was 	called as a witness 	in this
unfair 	practice 	proceeding.
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Department. 	His 	cover memorandum 	listed the 	subject 	as
"GRIEVANCE—BOB 	BRADLEY 	CONFIDENTIAL." 	Love's 	memorandum
stated:
Attached 	is 	a 	copy of 	a memo which relates 	to
an 	active 	grievance 	Bob 	Bradley has 	involving
the 	Office Administration Department.
Will 	you answer 	each paragraph 	that 	contains
an 	allegation 	against 	office 	administration,
so that 	I 	can develop a response 	for Jean
Loucks' use.
Remember, 	this matter requires 	a response
from 	the 	top 	administration of 	the 	college
and AFT is 	tied to a 	specific 	time 	line.
Please give 	it top priority. 	(Emphasis
added.)
Notwithstanding his 	inability 	to 	recall 	details 	while 	a witness
in this 	proceeding, 	Love's 	transmittal memorandum indicates 	that
he believed Bradley's 	grievance 	"active." 	By his 	testimony 	and
in his 	memorandum, 	Love 	indicated that 	sending the 	September memo
to Anderson was 	consistent with 	the way 	in which 	the 	college
investigated matters; 	the 	faculty of 	a 	concerned department was
ordinarily 	called 	upon 	to 	respond.6
Anderson had 	just 	assumed 	the 	position of 	chairperson 	at 	the
beginning of 	the 	academic 	year. 	Anderson testified that, 	in
order 	to 	fashion her response, 	she needed input 	from other
Love 	testified that 	there were 	other ways 	the 	information
sought 	by the 	President 	could have 	been obtained. 	Bradley
suggested 	that 	concerned 	administrators 	should 	have 	conducted 	an
independent investigation. 	It is readily apparent 	to the
undersigned 	that Anderson 	could 	have 	been 	asked 	to 	respond 	to 	the
allegations without 	identifying the 	author 	of 	the 	charges 	or
transmitting the 	September memo. 	Love 	did not 	approach 	the
matter 	in 	that 	fashion because 	he 	simply did not 	consider
deviating 	from his 	typical 	approach to 	such matters.
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members 	of 	the department. 	Accordingly, 	she met with them and
reviewed the 	allegations. 	Anderson did not think that 	sharing
the 	September memo with her 	colleagues was 	a breach of
confidentiality because 	she 	construed 	Love's 	designation 	of 	the
matter 	as 	"confidential" 	to mean that 	the 	information 	should not
go beyond her or the members 	of her department. 	After 	the
departmental meeting, 	on October 	10, 	1985, 	Anderson responded to
Love's request, 	as directed. 	On October 11, 	1985, 	Anderson sent
a 	letter directly to Wolf, 	enclosing 	copies 	of 	correspondence
which reflected 	"the 	longevity of 	this 	problem with Mr. 	Bradley."
Not long thereafter, 	on November 26, 	1985, 	Bradley,
responding 	to 	some 	management 	action 	that 	impacted upon 	a
different grievance, 	wrote an angry 	seven-page 	letter 	to Jean
Loucks, 	again detailing the 	alleged improprieties 	in the 	Office
Administration Department. 	On or about December 2, 	1985, 	Bradley
sent a 	separate 	letter to Dr. 	Monroe Richman, 	the president of
the 	District's 	Board of Trustees, 	repeating his 	allegations 	of
illegal 	and 	improper acts 	by management 	and members 	of 	the 	Office
Administration Department; 	a 	copy of 	Bradley's 	November 	letter 	to
Loucks was 	enclosed. 	In his 	letter to Richman, 	Bradley did not
mention 	that his 	allegations 	had been 	incorporated 	in 	a 	grievance
and he 	did not 	ask that matters 	be 	kept 	confidential. 	Bradley
did 	advise 	Trustee 	Richman 	that his 	major 	concern was 	that 	the
Business 	Administration 	Department was 	not 	receiving 	equitable
treatment 	because 	the 	Office 	Administration 	Department was
receiving 	a disproportionate 	share 	of 	college 	resources. 	Richman
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wrote 	to Wolf 	requesting detailed 	answers 	to 	the 	issues 	raised by
Bradley's 	correspondence. 	In response, 	a package of information
was 	transmitted to the Trustees on December 	30, 	1985. 	The record
does 	not disclose 	if 	the 	Trustees 	ever responded to 	Bradley.
Jean 	Loucks 	did respond 	to 	Bradley's 	correspondence 	to 	her 	on
December 19, 	1985.
Not long thereafter, 	on January 27, 	1986, 	Bradley filed a
grievance 	entitling it the 	"Supplemental 	[sic] 	Grievance
Concerning 	the 	'Reassignment' 	of 	Sylvia 	Cohen." 	David Wolf
responded on January 31, 	1986. 	Noting that he 	saw nothing
different 	in 	the 	grievance 	from 	that disposed 	of 	five 	months
earlier, 	he 	stated that he 	found no violation of 	the 	contract and
denied 	the 	grievance. 	There 	is 	no evidence that that particular
grievance was 	further processed.
The 	events 	described 	above were 	known to members 	of 	the
Office 	Administration 	Department 	who 	had 	specifically 	reviewed
the November 	letter 	from Bradley to Loucks. 	After discussion
among the members 	of the Office Administration Department, 	it was
decided 	to 	send 	a 	letter 	to 	the 	administration demanding 	a
cessation of Bradley's 	"harassment" 	of the department. 	The
department members 	also decided to 	send 	a 	copy of 	the 	letter 	to
each member of 	Bradley's 	Business Administration Department. 	The
evidence 	is 	uncontroverted that the 	decision 	to 	take 	that 	action
was made at the department level, 	by the 	faculty members, 	by use
of 	traditional 	collegial 	decision-making practices, 	with no 	input
or 	intervention by management.
12
J

Thus, 	on February 25, 	1986, 	members of the Office
Administration 	Department 	sent 	a memorandum 	to 	Wolf 	complaining
about 	Bradley's 	continued 	harassment 	and 	his 	interference 	with
the 	operation of 	the Office Administration Department. 	The
faculty requested 	that 	the 	president place 	a 	formal 	reprimand 	in
Bradley's personnel 	file. 	The 	faculty also requested that 	the
administration not 	endorse 	Bradley 	for 	reappointment 	as 	Business
Department 	chairperson 	if 	the 	harassment 	and defamation
continued. 	The memorandum 	from the 	faculty of 	the 	Office
Administration 	Department 	quoted 	from 	various 	Bradley
communications 	sent in the past, 	including the 	September memo.
Upon receipt 	of 	the 	February memorandum 	from 	the 	Office
Administration Department, 	Bradley learned, 	apparently 	for 	the
first time, 	that his 	September memo had been released. 	As 	a
result 	of 	the disclosure 	of 	the 	September memo 	to members 	of 	the
Business Administration Department, 	Bradley claims 	that members
of 	his 	department turned against him. 	Moreover, 	during the
hearing 	and 	in 	a 	post-hearing document wherein he 	requested
$2,000,000.00 	in damages, 	Bradley 	argued 	that 	the 	furor 	caused by
the 	release 	of his 	September memo resulted 	in his 	removal 	from
the 	position 	of 	department 	chairperson.
The 	record reflects 	that 	Bradley was 	chairperson 	at 	the 	time
his 	grievance was 	filed during the 	1984-85 	school 	year, 	that his
September memo was 	quoted 	from 	and 	sent 	to members 	of 	his
department during the 	1985-86 	school 	year, 	and that he was 	not
chairperson 	for the 	1987-88 	school 	year. 	There 	is 	no evidence
13

regarding 	the 	circumstances 	surrounding his 	no 	longer 	serving 	as
chair. 	There 	is no evidence 	of whether he was nominated, 	whether
he 	sought to 	serve, 	or whether he 	failed to get the requisite
votes 	needed. 	Bradley offered no evidence 	in this 	regard and
Loucks 	testified that, 	pursuant to the 	collective bargaining
agreement, 	management plays no role in the 	selection of
chairperson. 	Loucks further testified that, 	in fact, 	to her
knowledge, 	management did not participate 	in the decision
affecting 	Bradley's 	status 	and 	it 	did not 	attempt 	to 	influence
the process.
III. ISSUES
A. 	Did the release 	of Bradley's 	September memo, 	first to
the 	Office Administration 	Department 	and 	then 	to 	the 	Business
Administration 	Department, 	tend to 	interfere 	or 	interfere with
his 	exercise 	of rights 	guaranteed by the 	EERA?
B. 	Is 	the allegation that the 	September memo was released
as 	retaliation 	for 	Bradley's 	protected 	activity properly 	a 	part
of this unfair practice proceeding? 	If the answer is 	"yes", 	did
the 	District 	retaliate 	against 	Bradley?
IV. 	DISCUSSION
A. 	Interference
In Carlsbad Unified School 	District 	(1979) 	PERB Decision No.
89, 	the 	Board 	set 	forth the 	test appropriate 	in cases 	alleging
interference. 	The 	first part of 	the 	test provides 	that a prima
facie 	violation of 	the 	EERA will 	be 	deemed to exist 	if 	"the
Charging 	Party 	establishes 	that 	the 	employer's 	conduct 	tends 	to
14

or 	does 	result 	in 	some 	harm to 	employee 	rights 	granted under 	the
EERA." 	In determining whether 	certain 	conduct 	tends 	to 	interfere
with employee rights, 	the 	conduct 	is 	not 	looked at 	in a vacuum.
In other words, 	the test is whether, 	given the context, 	the
employer's 	conduct 	tends 	to 	interfere with the 	exercise 	of
employee rights. 	See, 	Riverside Unified School 	District
(Petrich) 	(1987) 	PERB Decision No. 	622.
In the instant case, 	there is no dispute that, 	in filing
grievances, 	Bradley engaged in protected activity. 	Similarly,
there 	is 	no dispute 	that grievance materials were 	generally
considered 	confidential; 	although no precise 	evidence 	established
the 	fact 	that grievance materials 	must be kept 	confidential,
Charging 	Party 	and 	District witnesses 	generally 	testified 	that 	it
was 	their 	understanding 	that 	grievance 	materials were 	ordinarily
confidential.7
Thus, 	the question presented is whether the release of
Bradley's 	September memo 	interferes 	or 	tends 	to 	interfere with
his 	exercise 	of 	activity protected by the 	EERA. 	As 	noted above,
in deciding this question, 	it 	is 	important to understand the
context in which the question arises. 	The District, 	its
administrators, 	and the members 	of 	its 	Office Administration
Department 	had 	been 	repeatedly 	charged with malfeasance 	and
misfeasance. 	Bradley 	suggests 	that 	the 	District mishandled his
grievance 	by not 	conducting 	an 	independent 	investigation without
7What was meant by 	"confidential" 	was 	never truly defined.
15

the participation of members 	of 	the 	Office Administration
Department. 	With an independent investigation, 	his 	"right" 	to
confidentiality would have 	been preserved. 	I 	disagree.
In circumstances 	such as 	those present herein, 	the 	District
has 	a right to 	investigate 	Bradley's 	charges 	and it 	is not
appropriate 	for Bradley, 	or this Administrative Law Judge, 	to
dictate 	the manner 	in which 	the 	District 	elects 	to 	conduct 	such
an investigation. 	Thus, 	whether to refer the matter to the
accused Department 	for 	a 	report 	is 	a 	decision properly within 	the
District's 	prerogative.
Having reached that 	conclusion, 	the 	scope 	of 	the present
inquiry 	is 	reduced to whether the 	release 	of 	the 	September memo
itself, 	with Bradley's name on it, 	interfered or tended to
interfere with his 	protected activity. 	Reviewing all 	the
circumstances 	surrounding the 	investigation, 	I 	find that the
release 	of 	the 	September memo did not 	interfere 	or 	tend 	to
interfere with Bradley's 	rights.
In most respects, 	the evidence 	submitted and the 	accusations
made 	by 	Bradley 	in his 	September memo were matters which he 	had
raised 	in the 	past without regard to 	a 	shield or promise 	of
confidentiality. 	The 	accusations were 	also repeated 	in 	several
nonconfidential 	communications 	after 	the 	September memo. 	The
record reflects 	that the 	nature 	and 	scope 	of his 	accusations were
known to members 	of his 	own department, 	Business Administration,
as well 	as members 	of the Office Administration Department. 	In
short, 	Bradley was 	readily 	identifiable 	as 	the author of
16

allegations 	regarding mismanagement 	in 	the 	Office Administration
Department. 	Thus, 	although publication of a document 	submitted
in 	conjunction with 	a 	grievance 	might 	ordinarily be 	viewed with
disfavor, 	given the totality of circumstances present here, 	the
action 	cannot be 	said to 	interfere with Bradley's 	exercise 	of
protected rights 	or 	to have 	a 	chilling 	affect 	on his 	continued
utilization of 	the 	grievance 	procedure. 	The 	conclusion that
disclosure 	did not 	interfere 	with 	Bradley's 	rights 	applies 	to 	the
initial 	release 	of 	the 	September memo by management 	to 	Ellen
Anderson, 	Anderson's release 	of 	the 	September memo to the members
of 	her department, 	and the 	subsequent quotation 	from the
September memo 	in 	the 	letter 	sent 	by 	the 	Office Administration
Department 	to 	the 	faculty members 	in 	the 	Business Administration
Department.
B. 	Discrimination
As noted above, 	the unfair practice charge, 	as 	amended,
alleged 	that 	the 	September memo was 	released 	in retaliation 	for
Bradley's 	protected 	activity. 	Although 	that 	allegation was 	not
in the Complaint, 	it was not the 	subject of the partial
dismissal. 	Accordingly, 	when the 	Board itself 	affirmed the
Regional Attorney's dismissal, 	the 	issue of retaliation was 	not
addressed. 	The 	PERB has 	often 	considered the 	propriety of 	an
Administrative 	Law Judge 	considering 	allegations 	which 	are 	not
part 	of 	an unfair practice 	complaint.
The 	rules 	governing 	such matters were 	set 	forth 	in 	Santa
Clara Unified School District 	(1979) 	PERB Decision No. 	104. 	In
17

that 	case, 	the 	Board 	found a violation regarding a matter not
alleged in the 	complaint, 	noting the 	existence of 	several 	factors
which made 	such a 	finding appropriate. 	The Board, 	adopting the
standards 	used by the 	National 	Labor Relations 	Board, 	stated:
Where, 	as here, 	the unalleged violation is
intimately related 	to 	the 	subject matter 	of
the 	complaint, 	where the 	communicative acts
are a part of 	the 	same 	course 	of 	conduct,
where 	the 	unalleged violation 	is 	fully
litigated, 	and where 	the parties have had the
opportunity 	to 	examine 	and 	be 	cross-examined
on the 	issue, 	the NLRB has 	entertained
unalleged violations. 	Id. 	at p. 	18.
Not 	only does 	the 	instant 	case 	comport with the 	standards 	set
forth above, 	in this matter, 	the Respondent was 	specifically
notified 	that 	it 	should be 	prepared 	to defend 	allegations 	of
retaliation. 	Thus, 	the retaliation charges are properly a part
of 	this 	proceeding.
The 	now well-established 	standards 	used 	to 	assess 	a
retaliation 	case 	were 	first 	distinctly 	set 	forth by 	the 	Board 	in
Novato Unified School District 	(1982) 	PERB Decision No. 	210. 	The
charging party must demonstrate 	that 	an 	employee 	engaged 	in
protected activity, 	that 	such activity was 	known to 	the 	employer,
and 	that 	such 	activity was 	a 	motivating 	factor 	in 	some 	adverse
personnel 	action. 	Since motivation is 	often difficult 	to prove
directly, 	the 	charging party must merely raise 	an 	inference 	of
unlawful motivation. 	If that is 	accomplished, 	the burden of
proof 	shifts 	to 	the respondent to 	show that 	its 	actions would
have been the 	same, 	regardless 	of 	the protected activity.
18

In the 	instant case, 	in terms of the initial release of the
September memo 	to 	Ellen Anderson, 	although Bradley easily
established 	that 	he 	engaged 	in 	protected 	activity 	known 	to 	the
Respondent, 	he has 	failed to raise an inference of unlawful
motivation. 	Although the 	timing of 	the 	publication 	of 	his
September memo was 	proximate 	to the 	timing of 	the 	grievance
itself, 	timing alone does not raise an 	inference 	of unlawful
motivation. 	Charter Oak Unified School 	District 	(1984) 	PERB
Decision No. 	404. 	Other factors which raise an inference of
unlawful 	motivation are 	not present here.
The 	District 	did not 	deviate 	from 	its 	customary practice 	in
investigating allegations 	of misconduct or grievances. 	Love,
Loucks, 	and representatives 	from the Office Administration
Department all 	testified, 	or 	suggested through their testimony,
that 	it was 	fairly routine 	to have 	a department 	conduct 	an
investigation 	and prepare 	a 	response when 	charges were 	lodged
against that department. 	In addition, 	the District, 	for the most
part, 	did not 	offer 	contradictory 	or 	inconsistent 	explanations
for its 	conduct. 	The September memo was 	sent to the Office
Administration 	Department because 	that was 	the way 	things 	were
customarily 	handled.
Similarly, 	the 	actions 	of 	the Office Administration
Department 	in 	sending a 	letter, 	which quoted 	from the 	September
memo, 	to the 	faculty of the Business Administration Department do
not 	establish Bradley's 	allegation 	of 	retaliation because 	of 	his
protected activity. 	Even 	if 	actions 	by members 	of 	the 	bargaining
19

unit who 	comprise 	the 	faculty 	in 	the 	Office Administration
Department 	are attributable 	to management, 	a 	fact 	certainly not
established herein, 	the 	testimony of witnesses 	from the 	Office
Administration 	Department 	persuaded 	the 	undersigned 	that 	their
actions 	were 	not 	influenced by 	the 	fact 	that 	Bradley had 	framed
one 	of 	his 	many 	complaints 	against 	the 	department 	in the 	form 	of
a grievance. 	Moreover, 	I 	am convinced that Bradley's November 	26
memorandum to 	Loucks, 	followed by his 	communication with 	the
Board of Trustees was enough, 	without his 	September memo, 	to have
triggered the 	angry actions 	of 	the 	faculty of 	the 	Office
Administration 	Department.
Finally, 	Bradley 	failed to establish that 	any adverse
personnel 	action resulted 	from 	the 	release 	of 	his 	September memo.
Although he was 	not the 	chairperson of 	the 	Business
Administration 	Department 	at 	the 	time 	of 	the 	unfair 	practice
hearing, 	insufficient evidence was 	presented regarding 	any 	aspect
of 	the 	department 	chairperson 	selection process 	to 	allow one 	to
reach any 	conclusions 	about 	that process.
V. 	CONCLUSION
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	it is 	found that the Charging Party, 	Robert Ray Bradley, 	has
failed 	to establish that 	the 	actions 	of 	the 	Los Angeles 	Community
College 	District 	interfered with his 	protected right 	to 	file
grievances 	or 	that 	the 	District retaliated 	against 	him 	for 	filing
a grievance. 	For 	a period 	of 	years 	Bradley has 	complained about
the manner 	in which a particular department was 	managed 	at 	Pierce
20

College. 	There is no doubt that the members 	of 	the Office
Administration 	Department 	sent 	copies 	of 	an angry 	letter 	to 	all
members 	of 	the 	department which had elected Bradley 	as 	its
chairperson 	in response 	to 	Bradley's 	own repeated 	and 	unrelenting
allegations 	of misconduct. 	There might have been retaliation,
but not 	the 	sort 	actionable 	under 	the 	EERA.
PROPOSED 	ORDER
After 	a hearing in the matter 	of 	Unfair Practice Case 	No.
LA-CE-2386, 	Robert Ray Bradley v. 	Los Angeles Community College
District, 	it 	is determined that 	the Charging Party has 	failed to
establish 	that 	the 	release 	of 	a memorandum which related 	to 	a
grievance 	constituted a violation of 	the 	EERA. 	Accordingly, 	the
Complaint herein 	is 	DISMISSED.
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 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 	. 	. 	. 	. "
21

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: 	February 6, 	1989
Barbara E. 	Miller
Administrative 	Law 	Judge
22