Sonoma County Junior College District (PERB 0895E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SANTA 	ROSA 	JUNIOR COLLEGE
FEDERATION OF TEACHERS 	LOCAL 	1946,
Charging 	Party,
v.
SONOMA COUNTY JUNIOR COLLEGE
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1330
PERB 	Decision No. 	895
August 	12, 	1991
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Appearances: 	Stewart Weinberg, 	Attorney, 	for Santa Rosa Junior
College Federation of Teachers Local 	1946; 	Margaret M. 	Merchat,
Attorney, 	for Sonoma County Junior College District.
Before Hesse, 	Chairperson; 	Shank and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	Sonoma 	County
Junior College 	District 	(District) 	of 	the 	attached proposed
decision by an administrative 	law judge 	(ALJ). 	The ALJ 	found
that the District violated 	section 3543.5(a) 	and 	(b) 	of the
Educational 	Employment Relations Act 	(EERA)1 by denying permanent
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part, 	that:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
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employment to Richard Speakes 	(Speakes) 	because of his 	exercise
of 	protected 	activity.
(b) 	Deny to employee 	organizations 	rights
guaranteed to 	them by 	this 	chapter.
The Board, 	after review of the entire record, 	including the
proposed decision, 	the District's 	exceptions 	and the 	Santa 	Rosa
Junior College Federation of 	Teachers 	Local 	1946's 	responses
thereto, 	finds the ALJ's 	findings 	of 	fact and conclusions 	of 	law
to be 	free 	of prejudicial 	error and therefore 	adopts 	them as 	the
decision of 	the 	Board 	insofar as 	they 	are 	consistent with 	the
discussion 	below.2
DISCUSSION
On appeal, 	the District 	claims 	the ALJ erroneously 	found
that 	it 	deviated 	from 	its 	long-established hiring practices 	by
refusing 	to 	select 	candidates 	in the 	order 	recommended by 	the
faculty hiring committee. 	According to the District, 	in order to
be offered a 	teaching position, 	candidates 	must be 	on both the
faculty 	committee's 	short 	list 	and placed 	in the 	"highly
acceptable" 	category by the administration committee. 	The
2The 	following technical 	corrections 	are made 	to the
proposed 	decision:
1. 	The ALJ 	stated that of 	the 	five 	candidates 	on the
faculty short list, 	only one was a woman. 	In fact,
there were two women on the 	list.
2. 	In footnote 	11, 	the citation to the transcript
should read R.T. III, p. 	37.
3. 	At page 22, 	the reference to the Charging Party in
the 	last paragraph 	should 	instead be 	to the 	Respondent.
N	2

District 	asserts 	that 	the 	college president has 	the ultimate
authority to 	select 	new faculty members 	and he 	is 	not bound 	by
department preferences.3
The 	evidence provides 	that on only two other occasions 	since
1971, 	has 	the president not made 	selections 	in accordance with a
faculty 	committee's 	preference. 	Departure 	from 	established
policies 	and procedures 	in dealing, with employees 	is one of
several 	factors 	in this 	case which may 	support 	an 	inference 	of
unlawful motivation. 	(Novato Unified School District 	(1982) 	PERB
Decision No. 	210.)
The 	District's 	exceptions 	restate 	arguments 	made before 	the
ALJ 	at 	the 	formal hearing.. . . 	While 	the 	Board applies 	a de 	novo
standard of 	review and 	is 	free 	to draw 	its 	own conclusions 	from
the record, 	with the 	exception of the ALJ's 	finding that the
District deviated from past practices, 	no 	justification is 	found
in this 	case 	to deviate 	from the ALJ's 	analysis.4 We 	find 	that
the ALJ's 	findings 	of 	fact and conclusions 	of 	law are 	supported
by the record. 	The 	Board 	finds 	that 	the 	remaining 	factors 	are
sufficient 	to 	conclude 	the 	District 	violated EERA 	section
3The 	college 	trustees 	actually 	complete 	the hiring process
by 	acting 	on the president's 	recommendations.
4The Board 	is 	not convinced that 	the 	evidence 	supports 	a
finding 	that 	the 	college 	hiring practices 	require 	the president
to 	consistently 	select 	faculty 	candidates 	in accordance with
department 	faculty recommendations. 	The mere 	fact 	that 	the
president 	has 	followed 	faculty 	hiring 	committee 	recommendations
in all but two other cases, 	does not as 	a matter of 	law establish
that 	the president has 	abdicated his 	authority 	to 	select 	new
faculty members. 	The Board hereby reverses 	the ALJ's 	finding
that 	the 	District 	deviated 	from past practices 	by refusing 	to
select 	faculty members 	in accord with 	faculty 	recommendations.
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3543.5(a) 	and 	(b) 	when it refused to 	select Speakes 	for a
permanent 	faculty position.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire record in the 	case, 	it 	is 	found that 	Sonoma County
Junior College 	District has 	violated 	sections 	3543.5(a) 	and 	(b)
of 	the Educational Employment Relations Act 	(EERA or Act) 	and
pursuant to section 3 541.5(c), 	it is hereby ORDERED that the
Sonoma 	County 	Junior College 	District 	and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1 	Violating EERA 	section 	3543.5(a) 	by denying 	Richard
Speakes 	employment 	in reprisal 	for his 	exercise 	of protected
rights 	guaranteed by the Act; 	and
2. 	Violating section 3543.5(b) 	by denying the
Santa 	Rosa 	Junior College Federation of 	Teachers 	Local 	1946,
rights 	guaranteed to 	it by the Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Employ Richard Speakes 	in a 	teaching position on
the 	commencement of 	the 	first 	college 	semester after this
decision becomes 	final, 	equivalent to that which he would have
held 	at 	the 	time 	he was 	unlawfully denied 	employment;
2. 	Make Richard Speakes whole 	for any 	losses 	he has
suffered 	since the 	first day of the Fall 	school term, 	1989, 	as 	a
result 	of 	the 	District's 	failure 	to 	employ him on that date.
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Reimbursement 	for 	any monetary 	losses 	shall 	include 	interest 	at
the rate of ten 	(10) 	percent per annum;
3. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	post at
all work 	locations where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as 	an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be taken to 	insure that this
Notice 	is 	not reduced in 	size, 	defaced, 	altered or covered by any
material; and
4. 	Written notification of 	the 	actions 	taken to 	comply
with this 	Order 	shall be made 	to the 	San Francisco 	Regional
Director of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with her 	instructions.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-1330,
Santa 	Rosa 	Junior College 	Federation of 	Teachers 	Local 	1946 	v.
Sonoma County Junior College District, 	in which all parties 	had
the right to participate, 	it has been found that the 	Sonoma
County 	Junior 	College 	District 	violated 	the 	Educational
Employment Relations Act 	(EERA or Act), 	Government Code 	section
3543.5(a) and (b).
.. .
As 	a 	result of 	this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND 	DESIST FROM:
1. 	Violating EERA section 3543.5(a) 	by denying Richard
Speakes 	employment 	in reprisal 	for his 	exercise 	of protected
rights 	guaranteed by the Act; 	and
2. 	Violating 	section 3543.5(b) 	by denying the
Santa 	Rosa 	Junior College 	Federation of 	Teachers 	Local 	1946,
rights 	guaranteed to 	it by the Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Employ Richard 	Speakes 	in a 	teaching position on
the 	commencement 	of 	the 	first 	college 	semester after 	this
decision becomes 	final, 	equivalent to that which he would have
held at 	the 	time he was 	unlawfully denied 	employment; 	and
2. 	Make Richard Speakes whole 	for any 	losses 	he has
suffered 	since the 	first day of the Fall 	school term, 	1989, 	as 	a
result 	of 	the 	District's 	failure 	to 	employ him on that date.
Reimbursement 	for 	any monetary 	losses 	shall 	include 	interest 	at
the rate of ten 	(10) 	percent per annum.
Dated:
By:
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
.. •, 	·' 	. 'i

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SANTA 	ROSA 	JUNIOR COLLEGE
FEDERATION OF TEACHERS LOCAL 	1946,
Charging 	Party,
v.
SONOMA 	COUNTY 	JUNIOR COLLEGE
DISTRICT,
Respondent.
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) 	Unfair Practice
Case No. 	SF-CE-1330
PROPOSED 	DECISION
(1/30/91)
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Appearances: 	Stewart Weinberg, 	Attorney, 	for Santa Rosa Junior
College Federation of Teachers 	Local 	1946; 	Robert Henry and
Margaret M. 	Merchat, 	Attorneys, 	for Sonoma County Junior College
District.
Before William P. 	Smith, 	Administrative Law Judge
PROCEDURAL 	HISTORY
On July 26, 	1989, 	this unfair practice charge alleging that
a part-time 	instructor was 	not 	selected 	for a 	full-time
probationary position because 	of 	his 	protected activities 	was
filed by 	Sonoma 	County Junior College 	Federation of 	Teachers
Local 	1946 	(hereafter Charging Party, 	AFT or Local 	1946) 	against
Sonoma 	County 	Junior College 	District 	(hereafter 	Respondent,
College or District).
After 	investigation, 	the General Counsel of 	the Public
Employment Relations 	Board 	(hereafter PERB 	or Board) 	issued 	a
complaint on August 	10, 	1989. 	The complaint alleges that the
district unlawfully: 	1) 	refused to hire an instructor, 	Richard
Speakes, 	for the position of 	full-time English instructor because
of his 	protected activities 	while 	serving 	as Vice-President 	of	. . . . .
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
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the 	Charging Party, 	and participating 	in the 	organizing drive 	of
the 	Charging 	Party 	leading 	to 	an 	election 	for 	certification as 	an
exclusive representative; 	and 	2) 	denied Charging Party 	its 	right
to represent unit members. 	It 	is 	alleged that these 	actions
violated 	the 	Educational 	Employment 	Relations Act 	(hereafter 	EERA
or Act), 	sections 3543.5 (a) and (b).1
The College filed its 	answer on September 26, 	1989. 	Based
on 	lack of 	information, 	the Respondent denied that Richard
Speakes 	engaged 	in protected activity. 	Respondent denied 	it
violated 	the Act 	by discriminating 	against 	Speakes 	because 	of 	any
such protected activity. 	Respondent 	also denied that 	its 	conduct
denied Charging 	Party the 	right to 	represent 	its 	members.
An 	informal 	conference was 	conducted by 	a 	PERB
administrative 	law judge on September 	13, 	1989, 	but the matter
was 	not 	resolved.
1The EERA 	is 	codified at Government Code 	section 	3 540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references 	in the
decision are to the Government Code. 	Sections 	3543.5(a) 	and 	(b)
state 	that 	it 	shall 	be unlawful 	for a public 	school 	employer to
do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
interfere with, 	restrain, 	or coerce employees
because of 	their 	exercise of 	rights
guaranteed by this 	chapter. 	For the purpose
of this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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A 	formal 	hearing was 	conducted by 	the 	undersigned
administrative law judge on January 25, 	1990, 	January 26, 	1990,
and February 	1, 	1990, 	in Santa Rosa, 	California. 	The final brief
was 	submitted on April 	18, 	1990, 	and the case was 	submitted for
decision.
FINDINGS 	OF 	FACT
It 	is 	stipulated by 	the parties 	and hereby 	found 	that 	the
College 	is 	a public 	school 	employer within the meaning of 	section
3540.l(k). 	Local 	1946 	is an employee organization within the
meaning of 	section 3540.l(d). 	Richard Speakes at all 	times
relevant was 	a public 	school 	employee within the meaning of
section 3540.1(j).
Richard 	Speakes 	was 	a part-time 	faculty member who 	submitted
an application 	for 	a 	full-time 	position when the 	college posted
three 	openings 	for 	full-time 	faculty positions 	in the 	English
department 	for the 	1989-90 	school year. 	Of 	the three positions,
two were 	regular 	full-time positions 	and one was 	a 	full-time
substitute position to replace 	a 	faculty member on 	leave 	for 	the
upcoming 	college 	year.
The 	established procedure 	for many years 	at 	the 	college was
for a 	two 	step 	interviewing process. 	One 	conducted by a 	faculty
committee22 from the 	academic 	department 	concerned 	and 	the 	other
by an administrative 	committee. 	The 	two 	committees 	separately
interview each of 	the 	candidates.
2This 	is 	called the 	"hiring committee" 	by the 	faculty, 	but
see footnote 3, 	infra pg. 	4.
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After deliberation, 	the 	faculty 	committee 	ranks 	a 	selected
number of 	candidates 	according to 	its 	collective preference. 	If
one position is 	open, 	it 	selects 	three 	from among those
interviewed. 	If two positions 	are open, 	it 	selects 	four and if
three positions 	are open it 	selects 	five. 	This 	is 	called the
short 	list. 	The English department 	forwards 	this 	list, 	as well
as 	the 	committee's 	summary 	evaluation of 	each of 	the 	candidates
on the 	short 	list, 	to the administrative committee.
The 	administrative 	committee 	consists 	of 	the president 	and
the academic 	vice-president. 	It also 	interviews 	each of 	the
candidates 	and ranks 	them 	into 	three general 	categories:
(1) 	those it considers highly acceptable,
(2) 	not quite as acceptable and
(3) 	not acceptable
The 	administrative committee 	compares 	the 	candidates 	it
placed 	in 	the 	first 	category with those 	on the 	short 	list 	of 	the
faculty 	committee. 	The College 	superintendent/president 	then
makes his 	choice(s) 	to fill the open position(s).3 He has 	always
hired 	from the 	short 	list. 	In the 	case 	of 	the English
department, 	he has made his 	choice according to 	its 	ranking.
The 	1989 	administration committee was 	Dr. 	Ray Mikalson,
superintendent/president 	of 	the College 	and Dr. 	David Wolf,
academic 	vice president.
3The 	trustees 	of the 	college, 	by appropriate 	school board
action, 	completes 	the hiring process 	based on the president's
recommendation.
4

For the 	1989/90 	school year, 	the departmental 	"hiring"
committee members were Joyce Griffen, 	the English department
chairperson; 	Ralph Farve, 	Melissa Kort, 	Marvin Sherak and Douglas
Fisher, 	English department instructors; 	Edmund Buckley, 	the dean
of 	instruction4, 	liberal arts-academic 	standards; 	and Richard
Webster the department chair-elect. 	As 	such, 	Webster sat 	ex-
officio 	on the 	committee without the right to vote.
Thirteen of 	the 	applicants 	for the positions were
interviewed 	by 	the 	faculty 	committee 	and 	also by 	the
administrative 	committee. 	The 	interview process 	took each
committee 	several 	days 	during the 	last working days 	of May 	1989.
The 	committee met 	again after the 	Memorial 	Day holiday 	to
make 	its 	final decision on the candidates, 	based on the
collective 	score 	each 	received 	from the 	members 	and 	the 	results
of the 	interviews.
The 	faculty hiring 	committee procedures 	were 	very
structured. 	In the preparation 	for the 	interview meeting with
the 	committee, 	a 	candidate could present orally a methodology
idea as 	they would to their department 	colleagues, 	or a 	sample
lesson as 	they would to a 	classroom of 	students. 	Then the
interview process 	moved on to 	asking 	each 	of 	the 	candidates 	to
respond to a 	list of 	set questions. 	The 	committee members
determined which of 	its 	members 	asked what 	questions 	and 	in what
4The dean though an administrative position, 	is 	a member of
the 	departmental 	hiring 	committee 	and 	together with 	the
department chair, 	transmits 	the results 	of 	its decision and
evaluation to 	the 	administrative 	committee.
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order. 	They 	could 	not ask additional 	questions 	unless 	they were
follow-ups. 	Through this process 	the thirteen were cut to 	five.
These 	five were 	then ranked by preference 	in this 	order: 	(1)
Taylor, 	(2) 	Speakes, 	(3) Madskey, 	(4) 	De Blasio and (5) Cooney.5
Madskey is a woman, 	the others are men. 	Thus, 	the faculty hiring
committee 	ranked 	Speakes 	as 	second among the 	five 	names 	it
submitted 	to 	the 	administrative 	committee.
The practice of 	ranking 	the 	candidates 	by the 	English
department's 	hiring 	committee when presented 	to 	the
administrative 	committee, 	started 	in the mid 	1970's 	and 	continued
through the 	1980's. 	Mikalson, 	Wolf, 	and Buckley 	said the proper
procedure was 	to present 	the 	list as 	unranked. 	Mikalson 	said
some departments presented the names 	in alphabetical, 	random or
chronological order. 	He conceded they would, 	however, 	indicate
their order of preference. 	But, 	in this 	case, 	as 	in all previous
years, 	the actual 	list presented to the administrative 	committee
from 	the 	English department hiring 	committee was 	a 	list with 	the
names 	in the 	order as 	ranked 	in preference by the departmental
hiring committee. 	In addition, 	the representatives 	of the
5While this was 	the hiring committee's 	final position, 	in
preliminary discussion within the committee, 	two of 	its members
would have ranked their preference 	for Speakes 	as 	lower. 	For
example, 	Melissa Kort said she was:
. 	. 	. 	disturbed by the presentation that
Speakes made. 	It didn't match what the
criteria were 	for the presentation.
But 	Kort 	and 	one 	other 	committee 	member were persuaded by 	the
majority 	to 	reach 	the 	unanimous 	accord.
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departmental 	hiring 	committee 	met with 	Mikalson 	and 	Wolf 	when
they presented 	its 	list 	to them, 	and 	in the discussion with
Mikalson and Wolf 	that 	followed, 	informed 	the administrators 	of
the 	departmental 	hiring 	committee's 	order 	of 	preference 	for 	the
candidates. 	Melissa Kort confirmed that 	for the two years 	she
was 	on the committee, 	they ranked the candidates 	in order of
preference. 	Marvin Sherak, 	retired English department 	instructor
who 	had 	served 	in 	the 	English department 	for 	thirty-three 	years
and 	served 	on the 	departmental 	hiring 	committee 	for 	approximately
three or four years, 	first in the 	1970's 	and again in the 	1980's,
said that 	on every occasion he 	could recall, 	the administration
hired 	the 	candidates 	as 	ranked by 	the 	departmental 	hiring
committee. 	The 	candidates 	list 	ranked by 	the departmental 	hiring
committee was 	transmitted 	to 	the 	administration by 	the 	dean of
letters 	and 	science, 	who 	sat on the departmental hiring
committee, 	such as Dean Buckley, 	or his predecessor. 	Mikalson
and Wolf, 	however, 	made it clear that the ultimate hiring
decision was 	the president's 	and that he was 	not bound by the
ranking. 	The 	first time the rankings 	of 	the English department
committee were 	not 	followed by the 	administration 	in making 	its
selection, 	was 	in the Spring of 	1989 when the hiring committee
selected 	and ranked 	five 	for the 	three 	open positions, 	and of 	the
five, 	all were offered positions 	except Speakes, 	who was ranked
by the 	hiring committee as 	second 	choice 	among the 	five.
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It 	is 	found that the 	English department 	in actual 	practice
routinely presented 	a 	ranked 	list 	to 	the 	administrative
committee.
The Administrative 	committee's 	interview process 	was 	shorter
and 	less 	structured. 	It was 	conducted on May 30, 	1989. 	After a
brief 	introductory warmup 	of 	small 	talk, 	it 	consisted of 	asking a
couple of predetermined questions of 	each of 	the 	candidates. 	In
Speakes case, 	it lasted no more than 	15 or 20 minutes. 	Dr.
Mikalson 	engaged 	Speakes 	in the 	introductory 	small 	talk and 	Dr.
Wolf 	followed up with the questions. 	Speakes 	said 	it was 	only
one 	question. 	Dr. 	Mikalson 	said Speakes 	response 	jumped 	from
question 	to 	question and he didn't put his 	thoughts 	together very
well. 	Mikalson said:
He 	seemed to 	start 	and then 	lose 	focus 	in his
interview. 	And he was 	not 	looking directly
at us when he was 	responding to 	the 	interview
as 	I 	am doing to you.
Dr. 	Wolf 	said Speakes did not interview well. 	The
Administrative 	committee 	ranked 	Speakes 	among 	its 	second 	category
of candidates. 	That is, 	those who were 	"not quite as
acceptable."
Griffen, 	Webster and Buckley presented the department hiring
committee's 	list of 	five preferred candidates to Dr. 	Mikalson and
Dr. 	Wolf 	shortly after the 	first of June 	1989. 	The department
hiring 	committee's 	list was 	delivered 	to 	the 	administrators 	with
the 	candidates' 	names presented 	in the 	sequence that represented
the 	committee's preference 	for the 	candidates. 	The 	list also
8

included 	after 	each 	name 	a brief 	summary prepared by Buckley, 	but
not reviewed by the 	committee, 6 of the 	candidates 	strengths 	and
66 Because 	of 	its 	importance 	in conveying the 	committee's
preference to the administration committee, 	it 	is 	set 	forth in
its 	entirety:
In making these recommendations, 	the
Committee 	considered 	commitment 	and 	ability
to 	teach the whole 	range 	of 	English
offerings, 	especially including basic 	skills
courses. 	The Committee also 	considered
special 	qualities 	the 	recommended 	candidates
would bring to the Department. 	Thus 	there 	is
a 	variety 	of 	strengths 	represented 	in the
choices below.
•	Ron Taylor. 	Ron has a PhD. 	in Linguistics--
and 	applies 	effectively what he 	knows 	to the
teaching of 	reading 	and composition. 	Six
years 	experience at the Univ. 	of Virginia
plus work in the Orient 	in ESL. 	Interview
was 	very 	strong—he was 	assertive, 	confident,
articulate. 	One of 	the brightest candidates
interviewed.
Richard Speakes. 	Richard has 	both the M.A.
and M.F.A 	(creative writing) 	and 	is a
serious, 	practicing writer and poet. 	He
brings 	a 	fresh 	approach to 	composition,
particularly remedial 	composition. 	He 	is
insightful 	about 	the writing process 	and
sensitive 	to the predicament of 	the novice
student writer. 	Considerable 	experience
(Murray State in Kentucky).
Candace Matzke. 	Candace is, 	apparently,
"superteacher" 	at College of the Sequoias,
active 	in the department and 	the 	college 	at
large, 	as well 	as 	interested and 	involved 	in
such 	state wide matters 	as 	Title V course
standards 	and AB 	1725 	staff development
(including ISW activities). 	Her interview
was 	very 	strong, 	and 	included a well
prepared, 	innovative 	classroom presentation.
Gloria 	DeBlasio. 	Gloria has 	taught many
levels 	of 	reading and composition, 	including
ESL. 	While not as 	strong 	in 	literature as
some others, 	she demonstrated tremendous
9

qualifications 	as perceived by the 	committee. 	Over the 	former
approximate twenty years, 	the result of the two-committee
screening procedure, 	as 	it related to the English department, 	had
been that 	the president had 	always 	selected 	instructors 	to 	fill
open positions 	according to 	the 	order of preference 	for the
candidates 	expressed by 	the 	departmental 	hiring 	committee 	on 	its
short list.7
energy and 	commitment 	to 	students 	and has 	an
engaging manner.
Rian Conney. 	Rian is 	also a practicing
writer, 	and has had full 	time 	experience at
Foothill 	(wants to leave that area). 	His
interview was 	excellent, 	revealing that he
has 	thought 	long and 	hard 	about 	teaching 	and
that he 	is 	committed to 	it.
-
Mikalson 	selected Taylor, 	Madskey and De Blasio to 	fill 	the
positions. 	Prior to Mikalson making an offer of 	employment 	to
his 	three 	choices, 	members 	of 	the departmental hiring committee
learned of Mikalson's 	decision to 	skip 	over Speakes.
Representatives went to both Mikalson and Wolfe, 	as well 	as
Buckley, 	and protested the decision to 	skip 	Speakes. 	Since the
77This 	had previously 	been 	the 	result 	generally 	throughout
the College in other departments as well. 	However, 	the
Respondent was 	able 	to produce 	evidence of 	two 	exceptions 	in
which 	the president had not 	followed 	the preference 	expressed by
the department. 	One 	related to 	the 	engineering department during
the 	same 	1988/89 	screening period. 	In that case, 	the president
selected 	the 	engineering 	department's 	second preference 	from
among a list of three, 	for the 	single open position. 	The 	second
exception occurred 	in 	1979, 	when the president 	selected the
second 	ranked preference 	of 	the 	speech department. 	These 	two
instances 	were 	the 	only exceptions 	presented by the 	Respondent.
Between 	1971 	and 	1986, 	1500 	to 	2000 	candidates 	for full-time
faculty positions were 	interviewed 	and 	275 	to 	300 	have been hired
using this 	same 	screening process.
10
•

president 	had 	failed 	to make 	his 	selections 	following 	the
preference 	among 	the 	applicants 	as 	ranked 	by 	the departmental
hiring committee, 	they 	sought 	explanation and 	justification.
Originally, 	the 	reason given by Mikalson and Wolf 	to 	the 	faculty
committee was 	that 	Speakes 	did not 	interview well. 	When 	later
pressed by the representatives 	of the hiring committee, 	Dr. 	Wolf
gave as 	a reason, 	the need to maintain departmental 	"gender
equity." 	Since the 	English department already had an equal 	or
better percentage of women to men, 	the 	faculty committee 	found
this 	explanation unacceptable. 	Madskey, 	the only woman among the
five, 	withdrew in favor of a 	job elsewhere. 	Mikalson skipped
Speakes 	a 	second time and chose Cooney, 	a man. 	Wolf told the
representative 	of 	the 	faculty hiring 	committee:
. 	. 	. 	that they might very well rank people
at the committee 	level, 	that when the
discussion 	took place with 	the
administration, 	those were presented unranked
and 	that 	the 	administration's 	impressions
were 	then 	integrated with 	those 	of 	the 	hiring
committee 	to 	reach the 	final
conclusion
and 	further
. 	. 	. 	that the administration was a player,
and what we had here was 	an exception 	that
proved the 	rule.
The 	departmental 	hiring 	committee was 	very 	incensed 	and 	expressed
its concerns 	in a letter dated June 	15, 	1989, 	to Mikalson and
Wolf 	as 	to what 	it 	considered a deviation 	from the past practice.
Mikalson responded 	in a 	letter directed 	to 	the members 	on
June 21, 	1989, as follows:
11

Dear Members 	of 	the Hiring Committee:
In response to your letter of June 	15, 	I wish
to 	emphasize my 	regard 	for 	the 	efforts
supplied by you 	in the matter of reviewing
candidates 	and 	recommending 	individuals 	to
the administration. 	Over the years, 	it is
these procedures 	that have yielded the 	fine
staff we 	currently have 	in the 	English
Department.
As you pointed out, 	shared governance
involves 	the 	cooperative participation by
both 	faculty and 	administrative 	interests.
We have on this 	particular occasion a most
unusual 	instance where, 	after careful review
and 	extensive discussions with you 	as 	a 	group
and 	individually, 	we were 	still 	unable to
reconcile differences 	in 	every 	single
instance.
I 	want 	to 	stress 	that 	all 	the 	administrators
involved 	in this 	latest 	round of 	English
hiring were 	careful participants 	in the
interviews of the candidates, 	and, 	in the
case of 	the one 	instance where there
continued to be disagreement, 	special 	care
was 	taken to 	listen to the arguments made by
members 	of 	the 	committee 	and to 	spend 	special
time pursuing references 	of the candidates.
After all 	this 	effort was 	expended and 	in
response 	to 	the 	special 	requests 	made by the
committee, we were, unfortunately, 	still
unable to reach agreement on one 	of the
selections. 	This, 	in the last analysis, 	is a
reflection of 	the 	exercise 	of 	the
administration's 	best 	judgment 	as 	to the
relative merits 	of 	the competing candidates.
In 	fulfilling my obligation to 	act 	in a
fashion consistent with my best 	judgment 	and
in weighing all the 	factors 	as best I 	can,
the 	ultimate 	responsibility 	in these matters
resides in my office.
In all 	the many personnel 	selection
procedures undertaken by the college, 	the
record will 	show that 	it 	is unusual 	for these
kinds of disagreements to result; 	however,
they have 	from time to time, 	and they are
ordinarily the result of differences 	in
judgment 	and the 	requirement 	that 	the
12

administration 	take 	final 	responsibility 	for
staffing decisions.
With 	great respect,
Roy G. 	Mikalson
Superintendent/President
Speakes' activities 	on behalf 	of 	an 	employee 	organization
Speakes 	is 	a member of 	Santa Rosa County Junior College
Federation of Teachers 	Local 	1946 	and 	serves 	as 	its 	vice-
president. 	When Speakes 	first 	joined the union in the 	Spring of
1988, 	there was 	no exclusive bargaining representative of 	the
faculty. 	The union decided 	to 	seek certification as 	the
exclusive representative of 	all 	the 	instructors. 	The president
of Local 	1946, 	Sarah Gill, 	asked Speakes to accept the position
of 	vice-president 	so that 	the union 	could more 	likely be
successful 	in 	its 	appeal 	to 	other part-time 	instructors 	to
support the union in the election campaign. 	Thus, 	Speakes played
a 	high profile role 	on behalf 	of 	the union around the 	college
throughout the election campaign. 	The union, 	as part of 	its
election campaign, 	published a 	newsletter entitled 	"Excellence"
and 	several 	single page 	election 	flyers.
Respondent's 	knowledge 	of 	Speakes 	union 	activities
(a) 	Publications
Speakes was 	featured prominently in 	"Excellence" 	as well 	as
in the election flyers, 	by the union. 	Copies of 	"Excellence"
with Speakes' 	picture on the 	front page together with his 	name 	in
the 	caption and 	text was 	distributed during 	September or October
13
•

of 	1988, 	and again during March or April of 	1989. 	A flyer
consisting principally of 	his picture and 	its 	caption, 	and 	some
text, 	was distributed during May of 	1989, 	just prior to the May
representational 	election. 8 This 	literature was widely
distributed 	to 	the 	faculty and was 	also placed directly 	into 	the
administrators' 	mail boxes 	including those of Mikalson and Wolf.
(b) 	PERB pre-election conference
In addition to knowledge of 	Speakes' 	election campaign
activities 	through 	"Excellence" 	and the union election 	flyers,
Mikalson and Wolf 	had knowledge 	of 	Speakes' 	active participation
on behalf of the union as 	a result of Speakes' 	attendance on
April 	27, 	1989, 	at a pre-election conference held at the PERB
regional 	office 	in San Francisco.
Dr. 	Mikalson and Dr. 	Wolf, 	together with counsel, 	appeared
on behalf 	of 	the College,and 	Speakes was 	one 	of 	the 	several
representatives 	present 	on behalf 	of 	the 	union,together with 	its
counsel.9 A 	significant portion of 	the 	more 	than one-half 	day
long meeting was 	conducted 	in a 	12-foot 	by 	14-foot 	conference
room with 	all 	the 	foregoing 	named people 	sitting 	around 	the
conference table. 	The result of the 	conference was 	that a unit
8 The 	election gave voters 	a 	choice of 	the Charging Party 	and
two 	other employee organizations 	as well 	as 	no representative.
The 	Charging 	Party 	and 	one 	organization were 	then the 	contestants
in a run-off election at a 	later date 	in the Fall of 	1989, 	not
relevant herein.
Approximately 	an 	equal 	number 	of 	representatives 	were
present 	representing 	a 	competing 	faculty 	organization.
14
'

was 	agreed upon and a mail 	ballot 	election was 	conducted. 	The
ballots were counted on June 	13, 	1989.10
Dr. 	Mikalson denies he was aware of Speakes' 	aforementioned
activities on behalf of the union's organizing effort. 	Dr. 	Wolf
conceded that he was probably aware of 	Speakes' 	AFT activities.
It 	is 	found that Drs. 	Mikalson and Wolf had knowledge of
Speakes' 	protected activities 	on behalf 	of 	the union when the
administrative 	committee 	conducted 	its 	interviews 	of 	the
applicants on May 30, 	1989.
Union Animus
Both Mikalson and Wolf 	deny union animus 	on their part. 	No
objection to 	certification of 	the 	election results was 	made 	by
participants 	charging unlawful 	acts 	by the administrators. 	Wolf
had been president of 	a 	college 	in the 	Los Angeles 	Community
College district, 	where the AFT was 	an exclusive representative
of 	the 	instructors. 	Buckley had been a member of the AFT earlier
in his 	career at Sonoma Junior College. 	Mikalson's 	attitude
toward 	the 	collective 	bargaining 	election 	is 	best described by
this 	dialogue 	from the 	transcript. 	The questions 	are by 	counsel
for Charging Party and the answers 	are Dr. 	Mikalson's.
Q. 	In 	fact you 	are 	not happy with the
prospect 	that 	the 	faculty was 	organizing.
Isn't 	that 	correct?
A. 	I 	think that happiness 	isn't -- well 	--
10As 	a result of this 	election, 	AFT gained the largest
number of votes, 	but 	less than a majority. 	A run-off election
was 	scheduled 	for the Fall 	of 	1989, 	to determine whether AFT or a
competing 	faculty 	organization would 	be 	selected 	as 	exclusive
representative.
15

Q. 	Well, 	you are unhappy about it, 	let's
put 	it that way; 	you were not pleased?
Q. 	I would agree with that.
Q. 	Why was that?
A. 	Because 	I 	think we were getting along 	so
well 	the way we were doing it, 	our
relationship with the 	faculty. 	We had an
excellent working 	rapport with them. 	There
was 	an 	excellent working 	rapport with 	the
Board of Trustees 	and the 	faculty and 	I 	felt
that 	-- 	that anything that might 	endanger
those 	relationships would not be 	for the best
interest of the students, 	the staff, 	period.
Q. 	Why did you think that 	collective
bargaining 	or meeting 	and 	conferring was 	a
threat 	to 	those 	relationships?
A. 	Because I 	think it changes 	the
relationships.
Q. 	But why was 	it 	a threat to the
relationship?
A. 	Well, 	because it would -- 	it would
change 	them and 	I 	-- 	I 	would 	— 	I 	thought we
were 	having 	-- 	we 	had 	excellent 	relationships
with all elements 	of the campus.11
Speakes' 	Previous 	Ranking by Hiring Committee
Speakes 	had been a 	candidate 	for one of 	the 	two positions 	open 	in
the English department 	in each of the two previous 	years. 	The
1987 	and 	Spring 	1988 	departmental hiring committees 	selected
three 	for 	its 	short 	lists 	from among the numerous 	applicants, 	and
forwarded 	the 	ranked 	lists 	to 	the 	administrative 	committee.
Speakes was 	ranked third 	on these 	short 	lists 	and 	each time 	Dr.
Mikalson 	selected the 	first two as 	ranked. 	In each case, 	Speakes
11Transcript, Vol.11, p. 37.
16

participated 	in a 	similar 	interview 	selection process 	for
temporary positions 	that 	became 	available 	and was 	selected 	as 	a
temporary 	instructor 	instead. 	The 	interview process 	for
selection of 	persons 	for 	these 	temporary positions 	used 	the 	same
criteria 	as was 	applied 	in the 	selection process 	for the 	full-
time positions.
Speakes' 	Teaching Employment:
Speakes 	received his 	Master's 	degree 	in English 	from the
University of 	Washington 	and ultimately 	a 	Master 	of 	Fine Arts
degree 	from Vermont College. 	He was 	first 	employed as 	a teacher
at 	the university 	level 	at 	the 	University of 	New Orleans 	and then
at 	the 	Murray 	State 	University 	in Kentucky 	as 	an assistant
professor. 	At Murray, 	where he taught from 	1985 to 	1987, 	he was
head 	of 	the 	creative writing program 	and 	in a 	tenure 	track
position. 	He came to Santa Rosa Junior College in 	1987. 	After
coming 	in third on the departmental 	short 	list, 	the result of 	the
interview process 	for two 	regular 	full-time English positions, 	he
was 	offered and 	accepted 	in 	lieu 	thereof, 	a 	full-time 	temporary
position teaching English at the College, 	Fall 	semester 	1987.
The 	following 	semester, 	Spring of 	1988, 	he was 	employed by the
College 	as 	a part-time 	instructor teaching two 	sections 	of
English. 	The College 	employed him as 	a 	full-time 	summer 	session
instructor teaching English during the Summer of 	1988. 	The
College 	reemployed 	him 	again 	in 	a 	temporary 	full-time 	instructor
position for the Fall 	semester of 	1988, 	and then again as part-
•
17

time for Spring 	semester 	1989, 	and Fall 	semester 	1989. 	He 	is
scheduled to teach part-time again, 	Spring 	semester 	1990.
Evaluation of 	Speakes' 	instructional 	performance
Speakes was 	evaluated on his performance as 	an 	instructor 	in
sections English 1A on December 2, 	1988, 	and on January 26, 	1989.
Dean Buckley 	conducted the 	class 	observations 	and made 	the
evaluations. 	The 	first one was 	very 	laudatory of 	Speakes'
performance 	and 	ended with 	the 	conclusionary 	statement:
I 	am glad he 	is 	teaching at 	Santa 	Rosa
Junior College.
On the occasion of 	Buckley's 	second 	evaluation of 	Speakes,
Buckley 	concluded the 	evaluation12 as 	follows:
12 The evaluation in more detail stated:
This 	evaluation 	is 	based on an observation of 	Richard
Speakes' 	English 1A class on November 	18, 	plus a review
of his course syllabus, 	writing assignments, 	and a
number of 	student essays.
The hour was 	devoted to a discussion of 	two 	student
essays, 	each 	in response to an assignment related to
television commercials. 	The 	flavor of the discussion,
and Mr. 	Speakes' 	way of leading it, 	is captured in his
written communications to the students. 	. 	. 	. 	That is,
in class 	and on paper, 	he approaches his 	subject
obliquely, 	often beginning with observations 	about his
own responses. 	One 	is 	tempted to think there 	is 	little
structure to the class, 	and Mr. 	Speakes clearly is
mistrustful of 	imposed structures; 	yet 	it is 	evident
that he had very clear objectives 	for the hour that 	I
observed. 	In the course of the discussion, 	he was 	able
to get 	students 	(as 	readers) 	to appreciate the
complexities 	involved 	in deducing 	the writer's
intention and 	(as writers) 	to 	consider 	strategies 	for
communicating difficult 	and 	complex 	ideas.
I 	have 	reviewed 	several 	student 	essays 	and the
corrections 	and comments 	that Mr. 	Speakes has written
on them. 	He 	is 	attentive to technical 	issues,
particularly 	sentence 	structure, 	and also 	comments
18
•

carefully about the writer's voice, 	his 	or her 	"heart,"
and the depth of 	thinking brought to the 	subject. 	In
most 	cases 	he 	has 	appended 	a 	typed paragraph describing
in some detail his 	overall response. 	For even the most
struggling writers, 	he has 	accompanied his 	criticism
with tactful, 	supportive statements. 	Also, 	he responds
as 	an interested reader, 	outside the 	"teacher-critic"
role.
Based 	on this 	observation and my discussions
and observations 	in the past, 	I 	continue to
see Richard Speakes 	as 	an excellent teacher
of composition.
•
ISSUES
Did 	the 	Respondent 	discriminate 	against 	Richard 	Speakes
because 	of his 	protected 	activity 	in violation of 	the Act? 	Did
the 	Respondent 	deny the Charging 	Party 	the 	right 	to 	represent 	its
members 	in violation of the Act?
DISCUSSION
Section 	3543.5(a) 	prohibits 	discrimination against 	an
employee 	for 	engaging 	in 	conduct protected by the 	EERA.
In order to prove an allegation of discrimination, 	the 	charging
party bears 	the burden of 	showing that 	the 	aggrieved 	employee
engaged 	in protected activity, 	that 	the 	employer knew of 	the
employee's 	activity, 	and 	that 	the 	employer took an adverse 	action
motivated by that 	activity. 	(Novato Unified School 	District
(1982) 	PERB Decision No. 	210; 	Palo Verde Unified School District
(1988) 	PERB Decision No. 	689.)
The 	party 	alleging discrimination must make 	a prima 	facie
showing 	of 	unlawful 	motivation by demonstrating 	a 	nexus 	between
the protected 	conduct 	and 	the adverse 	action. 	Under Novato.
19

unlawful 	motivation within the 	meaning 	of 	section 	3543.5(a)
occurs 	where 	the 	employee's 	participation 	in protected 	conduct
was 	a 	"motivating 	factor" 	in the 	employer's 	action against the
employee.
Consistent with other California and 	federal precedent, 	the
Board has 	adopted a 	test which requires 	the 	trier of 	fact 	to
weigh 	both direct 	and 	circumstantial 	evidence 	to determine
whether 	an action would not 	have been taken 	against 	an 	employee
but 	for the 	exercise of protected rights. 	(See Martori 	Brothers
Distributors v. 	Agricultural Labor Relations 	Board 	(1981) 	29
Cal.3d 721, 	727-730 	[175 Cal.Rptr. 	626]: 	Wright Line. 	Inc.
(1980) 	251 NLRB 	1083 	[105 LRRM 	1169] 	enf. 	in part 	(1st Cir. 	1981)
662 	F.2d 	899 	[108 	LRRM 2513].)
Absent direct evidence, 	indications 	of unlawful motivation
have been 	found 	in many aspects 	of 	an employer's 	conduct. 	Words
suggesting 	retaliatory 	intent 	can be persuasive 	evidence 	of
unlawful 	motivation. 	(Santa Clara 	Unified 	School 	District 	(1979)
PERB Decision No. 	104.) 	Other 	indications of unlawful motivation
have been 	found 	in an employer's: 	failure to 	follow usual
procedures 	(Santa Clara Unified School District, 	supra); 	timing
of 	the action 	(North Sacramento School District 	(1982) 	PERB
Decision No. 	264); 	shifting justifications and cursory
investigation 	(State 	of California 	(Department of 	Parks 	and
Recreation) 	(1983) 	PERB Decision No. 	328-S); 	disparate treatment
of 	a union adherent 	(State 	of 	California 	(Department of
Transportation) 	(1984) 	PERB Decision No. 	459-S); 	and pattern of
20

antagonism 	toward 	the 	union 	(Cupertino 	Union 	Elementary 	School
District 	(1986) 	PERB Decision No. 	572).
The 	record does 	not 	support 	a 	finding of union animus 	by
Wolf. 	Mikalson was, 	in fact, 	the actual decision maker.
Mikalson's 	aversion 	toward 	collective 	bargaining 	is 	supported 	by
his 	own testimony. 	Speakes, 	from Mikalson's perspective, 	was 	a
key 	spokesman 	in 	the AFT's 	effort 	to 	bring 	collective 	bargaining
to the College.
Since 	organizational 	activity 	such 	as 	Speakes 	engaged 	in
threatened to bring collective bargaining to the College, 	it 	is
found 	that 	Mikalson had union animus.
The 	established practice 	for 	the 	administration 	in 	selecting
new hires 	for the English department 	at 	the College over the 	last
decade, 	had been to 	select 	from the 	list 	forwarded to 	it 	in the
order as 	ranked by the departmental hiring committee. 	Indeed, 	in
only two prior cases, 	one in 1979, 	in the speech department, 	and
the other in the engineering department, 	is there evidence of
exceptions. 	Thus, 	there is a deviation of practice shown.
Based on Buckley's 	evaluations 	of 	Speakes' 	teaching and the
College's 	continuing reemployment of him, 	it 	is 	concluded that
factors 	other 	than the quality of 	his 	teaching played a 	role 	in
his 	nonselection.
Timing of 	the District's 	action 	in twice rejecting Speakes
to 	accept 	those 	ranked 	lower on the department's 	hiring 	list 	is
completely 	overlapping 	the 	organizing 	effort 	by 	the AFT
spearheaded on behalf of 	the part-timers 	by Speakes. 	This 	could
21

be merely coincidental, 	and by itself, 	would not be 	sufficient.
(Los Angeles 	Community College District 	(1989) 	PERB Decision No.
748.) 	The 	shifting 	justification for 	failure to 	select 	Speakes;
the 	vague 	and 	imprecise 	reasons 	given by 	the 	administration 	for
Speakes' 	failure to rank in its 	interview of him in contrast 	to
his 	proven history 	of 	satisfactory 	employment 	and 	re-employment
at the College; 	Speakes' 	ranking as acceptable in four previous
College 	selection processes, 	including the 	administration's
portion thereof; 	taken together with Mikalson's union animus, 	is
found 	to 	constitute a prima 	facie 	case on behalf 	of 	the Charging
Party.
After the Charging Party has 	made 	a prima 	facie 	showing
sufficient to 	support an inference of unlawful motive, 	the burden
shifts 	to 	the 	employer to demonstrate 	that 	it would have 	taken
the 	same 	action even 	in the 	absence 	of protected conduct.
The 	Charging Party's 	effort 	in this 	regard 	centers 	on an
explanation that Speakes 	did not 	interview well, 	the basis 	of
which 	sums up to be that, 	"He 	seemed to 	start and then lose
focus 	. 	. 	. 	and he was not looking directly at us 	. 	. 	. 	as I am
doing to you." 	Given the vague nature of this, 	his 	satisfactory
performance 	in candidate 	screening 	interviews 	in the previous
year, 	his 	employment and re-employment by the College over
successive years, 	his performance evaluations, 	and the
observation of 	the 	demeanor of 	Mikalson and Wolf 	as 	they were
examined 	in regard to this 	issue, 	it 	is 	found that the
22

explanation given 	for his 	nonselection was 	pretextual. 	(Novato
Unified- School District, 	supra.)
The 	Respondent has 	failed to 	show it would have taken the
same action, 	in failing to select Speakes, 	in the absence of his
protected 	conduct.
It 	is 	found that 	Speakes would have been 	selected 	for the
position, 	but for his union activity.
Given the entire record in this 	case, 	it 	is 	found that the
District's 	failure to 	select Speakes was 	the result of his
exercise of protected activities. 	Furthermore, 	because this
conduct 	against 	Speakes 	acted 	to deny the 	Charging 	Party 	rights
guaranteed under EERA, 	in that Speakes was 	acting in the 	role of
a union activist, 	the District also violated section 3543.5(b).
(Newark Unified School District 	(1991) 	PERB Decision No. 	864, 	El
Dorado Union High School District 	(1986) 	PERB Decision No. 	564.)
REMEDY
Section 3541.5(c) 	empowers PERB to:
. 	. 	. 	issue a decision and order directing an
offending party 	to 	cease 	and desist 	from the
unfair practice 	and 	to 	take 	such 	affirmative
action, 	including but not 	limited to the
reinstatement 	of 	employees 	with 	or without
back pay, as will 	effectuate 	the policies 	of
this 	chapter.
In this 	case, 	the District has 	been found to have violated
section 	3543.5(a) 	and 	(b) 	by denying Richard Speakes 	employment
in a position he would have received, 	but 	for his protected
activity. 	The 	remedy 	for 	such violations 	should be designed 	to
restore, 	so far as possible, 	the status quo ante. 	(Santa Clara
23

Unified School District, 	supra.) 	In this 	case, 	Speakes was
unlawfully denied appointment. 	It is, 	therefore, 	appropriate
that 	the 	District be 	ordered to 	employ Richard 	Speakes 	to 	a 	full-
time 	teaching position in the English department, 	effective with
the 	commencement 	of 	the 	first 	college 	semester after the decision
becomes 	final, 	with 	service credit 	and pay, 	from the 	first day of
the Fall 	school 	term 	1989, 	and to make him whole 	for any 	losses
he 	suffered as 	a result of the District's 	unlawful 	actions. 	This
use 	is 	distinguished 	from the 	facts 	of 	Lemore Union High 	School
District 	(1982) 	PERB Decision No. 	271, 	where it was 	found that
the unlawful 	act was 	the denial 	of opportunity to 	compete.
Pursuant to State of California. 	Department of Transportation
(1984) 	PERB Decision No. 	459-S, 	reimbursement for any monetary
losses 	shall 	include 	interest at the rate of 	ten 	(10) 	percent per
annum. 	The 	District 	shall 	be 	entitled to offset 	from any amount
owed pursuant 	to the Order, 	the value of wages 	and benefits
secured 	from 	alternative 	employment 	during 	the period 	of
liability.
It 	is 	also 	appropriate 	that 	the District be ordered to 	cease
and desist 	from 	its 	unfair practices 	and to post 	a 	notice
incorporating 	the 	terms 	of 	the Order. 	The Order 	should be
subscribed by 	an authorized 	agent 	of 	the 	Sonoma 	County 	Junior
College 	District 	indicating that 	it will 	comply with 	the 	terms
thereof. 	The Notice 	shall not be reduced 	in 	size. 	Posting 	such
a 	notice will 	provide 	employees with notice 	that 	the 	District 	has
acted 	in an unlawful manner and 	is 	being 	required to 	cease 	and
24
•

desist 	from this 	activity and to 	return to 	the 	status 	quo 	ante.
It 	effectuates 	the purposes 	of 	the 	EERA that 	employees 	be
informed 	of 	the 	resolution of 	the 	controversy and will 	announce
the 	District's 	readiness 	to 	comply with the 	ordered remedy. 	(See
Placerville Union School District 	(1978) 	PERB Decision No. 	69;
Pandol and Sons v. 	Agricultural Labor Relations Board 	(1979) 	98
Cal.App.3d 580, 	587 	[159 Cal.Rptr. 	584] 	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 the case. 	It 	is 	found that 	Sonoma
County 	Junior College 	District 	has 	violated 	sections 	3543.5(a)
and 	3543.5(b) 	of 	the Educational 	Employment Relations Act.
Pursuant to sections 	3 541.5(c) 	and 	(e) 	of the Government Code;
IT 	IS 	HEREBY ORDERED that 	the 	Sonoma 	County Junior College
District 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Violating 	section 3543.5(a) 	by denying Richard
•Speakes 	employment 	in reprisal 	for his 	exercise 	of protected
rights 	guaranteed by the Act.
2. 	Violating 	section 3543.5(b) 	by denying the 	Santa
Rosa Junior College Federation of Teachers, 	Local 	1946, 	rights,
guaranteed to 	it by the Educational 	Employment Relations Act.
25

B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Employ Richard Speakes 	in a 	teaching position on
the 	commencement 	of 	the 	first 	college 	semester after this
decision becomes 	final, 	equivalent to that which he would have
held at 	the 	time he was 	unlawfully denied 	employment.
2. 	Make Richard Speakes whole 	for any losses he
suffered 	since the 	first day of the Fall 	school term, 	1989, 	as 	a
result of 	the District's 	failure to 	employ him on that date.
Reimbursement 	for any monetary 	losses 	shall 	include 	interest 	at
the rate of the ten 	(10) 	percent per annum.
3. 	Within ten 	(10) 	workdays of 	service of a final
decision 	in this matter, 	post at all 	school 	sites 	and all 	other
work 	locations 	where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the 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 the Order to 	the
San 	Francisco 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with her 	instructions.
26
•

It 	is 	further ORDERED that 	all 	other allegations 	of 	the
charge 	and 	complaint 	are 	DISMISSED.
Pursuant to California Code of Regulations, 	title 8,
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 Code 	of
Regulations, 	title 8, 	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 	". 	. 	. 	or when sent by
telegraph or certified or Express 	United States 	mail, 	postmarked
not later than the last day set for filing 	. 	. 	. 	." 	See
California Code of Regulations, 	title 8, 	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 Code of Regulations, 	title 	8,
sections 	32300, 	32305 and 32140.
Dated: 	January 	30, 	1991
William P. 	Smith
Administrative 	Law Judge.
27
Jud,/1(