Victor Valley Union High School District (PERB 2822E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VICTOR VALLEY TEACHERS
ASSOCIATION,
Charging Party,
v.
VICTOR VALLEY UNION HIGH SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-6562-E
PERB Decision No. 2822
June 14, 2022
Appearances: California Teachers Association by Richa Amar, Staff Counsel, for
Victor Valley Teachers Association; Fagen Friedman & Fulfrost by Milton E. Foster III
and Kara Walton, Attorneys, for Victor Valley Union High School District.
Before Banks, Chair; Shiners and Paulson, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions and cross-exceptions to a proposed decision by
an administrative law judge (ALJ). The complaint alleged that Victor Valley Union High
School District interfered with rights protected by the Educational Employment
Relations Act (EERA)1 when, during a deposition, the District’s attorney asked Victor
Valley Teachers Association President Kathleen Montague-Hanson questions about:
(1) confidential communications she had with a bargaining unit member, A.B.,
concerning a disciplinary matter in which she advised A.B.; and (2) confidential
1 EERA is codified at Government Code section 3540 et seq. All further
statutory references are to the Government Code unless otherwise indicated.

2
communications she had with other bargaining unit members and union personnel
about A.B.2
Following a two-day evidentiary hearing and briefing by the parties, the ALJ
issued a proposed decision finding the District violated EERA as alleged in the
complaint. Based on our review of the proposed decision and the entire record in light
of the parties’ submissions, we affirm the proposed decision’s legal conclusions, grant
one of the Association’s cross-exceptions related to the ALJ’s factual findings, and
supplement the proposed decision’s analysis with discussion of the District’s
exceptions and the Association’s cross-exceptions.
FACTUAL AND PROCEDURAL BACKGROUND
I. 	Factual Background
The District is a public school employer within the meaning of EERA section
3540.1, subdivision (k). The Association is an employee organization within the
meaning of EERA section 3540.1, subdivision (d), and an exclusive representative
within the meaning of EERA section 3540.1, subdivision (e).
Montague-Hanson was the president of the Association at all relevant times.
She was also a teacher at the same school as A.B. A.B. was a certificated employee
of the District and a member of the Association’s bargaining unit. In her capacity as
Association President, Montague-Hanson represented A.B. in meetings with District
management on approximately three to five occasions.
In representing A.B. and other Association unit members, Montague-Hanson
2 Pursuant to the parties’ stipulated protective order, we refer to the employee
who was the subject of the discipline matter relevant to this case only by his initials.

3
sought advice from Dawn Murray, the California Teachers Association (CTA) staff
representative assigned to assist the Association. Montague-Hanson and Murray also
communicated by e-mail on Montague-Hanson’s personal Yahoo account, which she
used for union business, concerning the Association’s representation of A.B.
On August 28, 2018, Montague-Hanson and Murray co-authored and filed a
complaint on behalf of A.B. regarding alleged discrimination and harassment by
Principal Kent Crosby and the Director of Information Technology at A.B.’s school.
The complaint included several incidents between A.B. and Crosby beginning in
February 2018.
Around this same time, the District hired an outside investigator to look into
complaints it had received about A.B.’s conduct. The investigator interviewed
witnesses including seven teachers, two of whom called the investigator directly and
wished to remain anonymous. The investigator did not interview Montague-Hanson.
On August 22, 2019, the District issued A.B. a Statement of Charges alleging
misconduct, including unprofessional behavior toward parents, failing to secure
chemicals and equipment, making threats against Crosby and aggressive statements
toward employees and students, leaving students unattended, and vaping in class in
the presence of students.
On November 7, 2019, the District’s Board of Trustees voted to dismiss A.B.
from District employment for a variety of alleged misconduct including rude and
discourteous behavior, making death threats, mishandling dangerous chemicals,
vaping on campus, and profanity.
A.B. appealed his dismissal, initiating a proceeding before a Commission on

4
Professional Competence administered through the Office of Administrative Hearings
(OAH). The appeal stated several affirmative defenses, including that the dismissal
was in retaliation for having a disability and requesting accommodations, and for
reporting unsafe working conditions. Montague-Hanson did not represent A.B. during
the dismissal proceedings.
On December 30, 2019, A.B. filed initial disclosures which listed
Montague-Hanson as a witness likely to have discoverable information “regarding
incidents listed in Statement of Charges, Respondent’s defenses, and working
conditions including, but not limited to, administration.” A.B. made substantially
identical statements in a March 18, 2020 prehearing conference statement and an
April 15, 2020 prehearing disclosure.
On March 23, 2020, the District filed a prehearing conference statement listing
Montague-Hanson as a witness to several allegations listed in the Statement of
Charges, including: (1) the January 31, 2018 incident involving a telephone call with a
student’s mother; (2) the February 2, 2018 incident involving a meeting in Crosby’s
office and a student’s parents; (3) the Conference Summary Report related to the
February 2, 2018 incident; (4) the August 28, 2018 incident involving chemicals found
in A.B.’s classroom during a Williams visit;3 (5) an undated staff meeting where A.B.
yelled about his dissatisfaction with the school; and (6) the October 2, 2018 incident
3 A class action lawsuit, Eliezer Williams, et al., v. State of California, et al.
(Super. Ct. S.F. City and County, 2004, No. 312236.) (Williams), was settled through
enactment of several laws including the requirement that the county superintendent of
schools “[v]isit and examine each school in the county at reasonable intervals to
observe its operation and to learn of its problems.” (Ed. Code, § 1240, subd. (c)(1).)
These visits are colloquially called “Williams visits.”

5
concerning a broken air conditioner and chemical smell. Contrary to the District’s
representation in its prehearing conference statement, Montague-Hanson did not
personally witness the above incidents, and her involvement with the allegations in the
Statement of Charges was solely as A.B.’s representative.4
On April 14, 2020, the District served a deposition subpoena and deposition
notice on Montague-Hanson as part of its statutory dismissal proceeding against A.B.
On April 27, 2020, District counsel Kara Walton took Montague-Hanson’s
deposition for more than four hours. Richa Amar, an attorney with the CTA Legal
Department, represented Montague-Hanson. When Walton began asking questions
about Montague-Hanson’s communications with Association bargaining unit members
about A.B., Amar objected based on the questions calling for communications that are
protected by associational privacy rights. Amar explained:
“You’re asking the witness questions in her capacity as a
union officer concerning protected union communications
and the case I cited earlier, William Hart Union High School
District, which is a case from 2018, and that case found the
district committed an unfair practice when it questioned a
union rep about what any other bargaining unit employees
complained to her about another member who the district is
investigating. It constituted interference with protected
rights and said that an employer’s legitimate investigation
into an alleged wrongdoing cannot include quizzing the
4 The ALJ found that Montague-Hanson “had at times been [A.B.’s]
representative where his misconduct occurred . . . and witnessed some of his
misconduct.” Montague-Hanson testified that she did not personally witness any of the
incidents alleged in the Statement of Charges and that she only knew of the incidents
through her representation of A.B. No evidence in the record contradicts
Montague-Hanson’s testimony on this point. Because the evidence does not support a
finding that Montague-Hanson personally witnessed any of the misconduct alleged in
the Statement of Charges, we grant the Association’s first cross-exception.

6
shop stewards about the substance of communications
between employees and their union reps, thereby
deputizing the union as the employer’s agent for conducting
disciplinary investigation.
“To the extent that’s what you’re doing here, I request that
you withdraw this line of questioning.”
Despite Amar’s objection, Walton continued her questions about Montague-
Hanson’s conversations with Association bargaining unit members about A.B.:
• 	“[A]t Lakeview in your role as the union rep and
president, have you become aware of other concerns by
district employees regarding [A.B.]?”
• 	“[W]ere you made aware of other concerns reported by
district employees regarding [A.B.]’s behavior?”
• 	“When Ms. Kugies came to speak to you about [A.B.],
what concerns did she report to you?”
• 	“Did she ask your advice on how to address [A.B.] or for
help to address [A.B.]’s behavior?”
• 	“How many times did Ms. Davis report her concerns
[about A.B.] to you?”
• 	“With regards to Magen Kroell, what concerns did she
report to you [about A.B.]?”
• 	“Was there any indication from Ms. Kroell . . . why [A.B.]
was making angry statements about . . . [Principal]
Crosby?”
• 	“The last person you mentioned was Melissa Hays.
What concerns did Ms. Hays report to you regarding
[A.B.]?”
• 	“Was Mr. Beyer afraid or had a serious concern that
there, in fact, was a weapon on campus? . . . Was Mr.
Beyer sincerely concerned or worried about there being

7
a gun on campus?”
Kellee Kugies, Allison Davis, Magen Kroell, Melissa Hays, and John Beyer were
all teachers and Association bargaining unit members who spoke to
Montague-Hanson in her capacity “[a]s a Union representative.”
Walton also questioned Montague-Hanson about her conversations with A.B.:
• 	“[D]id you discuss at any time with [A.B.] concerns you
had about his behavior in that meeting [with parents]?”
• 	“What did [A.B.] say about Mr. Crosby?”
• 	“On any other occasions, . . . did [A.B.] make
statements, threatening statements, against Mr.
Crosby?”
• 	“Did you find it unacceptable that he would speak about
his principal in this manner?”
• 	“Did you ever talk to [A.B.] about your concerns
regarding whether he should not bring weapons to
campus?”
• 	“Did [A.B.] ever talk to you about trying to preserve the
blue stain evidence for a lawsuit against the district?”
• 	“[W]hat e-mails would [A.B.] have sent you regarding
what matters?”
Walton also questioned Montague-Hanson about communications with CTA
staff representative Murray regarding A.B.:
• 	“What e-mails are in your Yahoo account from Ms.
Murray regarding [A.B.]?”
• 	“[W]hat [did Murray advise you] to do?”
A.B.’s dismissal appeal settled prior to the OAH hearing.

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II. 	Procedural History
On June 2, 2020, the Association filed the unfair practice charge. The District
did not file a position statement in response to the charge.
On August 26, 2020, PERB’s Office of the General Counsel issued a complaint.
On September 15, 2020, the District filed an answer, denying all substantive
allegations and asserting affirmative defenses, including lack of jurisdiction, litigation
privilege, and mootness.
The parties participated in a virtual formal hearing on February 4-5, 2021.
On July 21, 2021, the ALJ asked the parties to submit supplemental briefs
addressing the Board’s recent decision in Operating Engineers Local Union No. 3,
AFL-CIO (Wagner et al.) (2021) PERB Decision No. 2782-M (OE3). The case was
submitted for decision on August 26, 2021, upon receipt of the supplemental briefs.
On December 29, 2021, the ALJ issued a proposed decision finding that the
District’s questioning of Montague-Hanson during the deposition interfered with
EERA-protected rights. On February 28, 2022, the District filed a statement of
exceptions. The Association filed a response and cross-exceptions on March 24,
2022.
DISCUSSION
In resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of San Joaquin (2021) PERB Decision No. 2775-M,
p. 19.) Under this standard, we review the entire record and are free to make different
factual findings and reach different legal conclusions than those in the proposed
decision. (County of Sacramento (2020) PERB Decision No. 2745-M, p. 10.) However,

9
the Board need not address issues that the proposed decision has adequately
addressed or that would not impact the outcome. (City of San Ramon (2018) PERB
Decision No. 2571-M, p. 5; Hartnell Community College District (2018) PERB Decision
No. 2567, p. 3; PERB Reg. 32300, subd. (e).)5
I. 	Interference
EERA section 3543.5, subdivision (a), makes it an unfair practice for a public
school employer to “interfere with, restrain, or coerce employees because of their
exercise of rights guaranteed by [EERA].” Subdivision (b) makes it unlawful for a
public school employer to deny employee organizations rights guaranteed by EERA,
including the right to represent employees in their employment relations. (Fremont
Union High School District (1983) PERB Decision No. 301, p. 6.)
To analyze allegations of employer interference with the rights of employees or
employee organizations, PERB uses the standard articulated in Carlsbad Unified
School District (1979) PERB Decision No. 89 (Carlsbad). Under Carlsbad, a charging
party establishes a prima facie case of interference where an employer’s conduct
tends to or does result in at least slight harm to protected rights. (County of Santa
Clara (2018) PERB Decision No. 2613-M, p. 8.) The test for whether a respondent has
interfered with protected rights does not require that unlawful motive be established.
(Claremont Unified School District (2019) PERB Decision No. 2654, p. 20.)
Once a charging party has established a prima facie case, the burden shifts to
the respondent. (OE3, supra, PERB Decision No. 2782-M, p. 7.) The degree of harm
5 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

10
dictates the respondent’s burden. (Ibid.) If the harm is “inherently destructive” of
protected rights, the respondent must show that the interference results from
circumstances beyond its control and that no alternative course of action was
available. (Ibid.) For conduct that is harmful but not inherently destructive, the
respondent may attempt to justify its actions based on operational necessity. (Ibid.) In
such cases, we balance the asserted need against the tendency to harm protected
rights; if the tendency to harm outweighs the necessity, we find a violation. (Ibid.)
Within the category of actions or rules that are not inherently destructive, the stronger
the tendency to harm, the greater is the respondent’s burden to show its need was
important and that it narrowly tailored its actions or rules to attain that purpose while
limiting harm to protected rights as much as possible. (Ibid.)6
In cases where the alleged interference is caused by a party’s litigation
conduct, we apply the principles articulated in Bill Johnson’s Restaurants, Inc.
v. NLRB (1983) 461 U.S. 731 (Bill Johnson’s), “effectively follow[ing] a qualified
litigation privilege that preserves parties’ ability to litigate colorable legal rights while
disallowing baseless, bad faith conduct that tends to harm protected labor rights.”7
6 For the reasons stated in his dissent in Contra Costa County Fire Protection
District (2019) PERB Decision No. 2632-M, Member Shiners disagrees that the
concept of “inherently destructive conduct” should be part of PERB’s interference
standard. (Id. at pp. 72-76.) Instead, in all interference cases he would simply “balance
the harm to protected rights against the employer’s asserted justification for its
conduct.” (Id. at p. 75.)
7 The District argues that the absolute litigation privilege in Civil Code
section 47, subdivision (b) protects the deposition questioning at issue, but as we held
in OE3: “PERB charges do not assert tort claims, and the statutory litigation privilege
does not apply in PERB proceedings.” (OE3, supra, PERB Decision No. 2782-M,

11
(OE3, supra, PERB Decision No. 2782-M, p. 11; see Bill Johnson’s, supra, 461 U.S.
731.) Thus, in cases where litigation conduct is alleged to interfere with protected
rights, “the charging party faces an extra hurdle that is not present in other
interference cases: the charging party must establish that the respondent acted
without any reasonable basis and for an unlawful purpose.” (Id. at p. 8.)
Applying Bill Johnson’s principles, the National Labor Relations Board (NLRB)
has held that when an interference claim is based on the employer’s conduct during
litigation discovery, the employer’s interest in acquiring the information sought must be
balanced against the impact disclosing the information would have on
statutorily-protected rights. (Wright Electric, Inc. (1999) 327 NLRB 1194, 1195 (Wright
Electric); National Telephone Directory Corp. (1995) 319 NLRB 420, 421-422.)8 In
Guess?, Inc. (2003) 339 NLRB 432 (Guess?, Inc.), the NLRB adopted a three-part test
to determine if deposition questioning unlawfully interferes with protected rights:
“First, the questioning must be relevant. Second, if the
questioning is relevant, it must not have an illegal objective.
Third, if the questioning is relevant and does not have an
illegal objective, the employer’s interest in obtaining this
p.10.) The District’s citation to County of San Bernardino (2018) PERB Decision
No. 2556-M (San Bernardino) is inapposite because, as we noted in OE3, the ALJ’s
discussion regarding litigation privilege in San Bernardino was non-precedential
because no exceptions were taken to that portion of the proposed decision. (OE3,
supra, PERB Decision No. 2782-M, p. 11, n. 13.) In OE3, we also noted that the
proposed decision wrongly analyzed the statutory litigation privilege as if it were an
evidentiary privilege incorporated into PERB procedure. (Ibid.)
8 Although California public sector labor relations precedent frequently protects
employee and union rights to a greater degree than does federal precedent governing
private sector labor relations, we consider federal precedent for its potential
persuasive value. (OE3, supra, PERB Decision No. 2782-M, p. 9, fn. 10.)

12
information must outweigh the employees’ [protected
rights].” (Id. at p. 434.)
California’s Agricultural Labor Relations Board recently adopted the Guess?, Inc. test
as the applicable framework for determining whether deposition questions interfere
with protected rights under the Agricultural Labor Relations Act (ALRA).9 (Fowler
Packing Co., Inc. (2020) 46 ALRB No. 1, p. 12.)
Because it provides a workable framework for balancing the respective
interests at stake, we likewise adopt Guess?, Inc. as the legal standard for
determining whether deposition questions interfere with protected rights under the
PERB-administered statutes.10 For the following reasons, we agree with the ALJ that
the District’s questioning of Montague-Hanson during her deposition fails the
Guess?, Inc. test.
A. 	Relevance
The District argues the ALJ erred in finding the questions posed to
Montague-Hanson irrelevant because they were likely to lead to admissible evidence
regarding A.B.’s defenses, confirm facts provided by other witnesses to establish
A.B.’s credibility, and disclose the identity of other witnesses for corroboration.
Education Code section 44944.1, subdivision (d)(1)(B), provides that the scope of
discovery in teacher dismissal proceedings is the same as under the Civil Discovery
9 The ALRA is codified at Labor Code section 1140 et seq.
10 Because this standard applies the Bill Johnson’s qualified litigation privilege
in the context of deposition questioning, it does not create, as the District contends, a
union representative-bargaining unit member evidentiary privilege akin to that rejected
by the court of appeal in American Airlines, Inc. v. Superior Court (2003) 114
Cal.App.4th 881, 890.

13
Act, which allows a party to obtain discovery of any non-privileged matter “that is
relevant to the subject matter involved in the pending action . . . if the matter either is
itself admissible in evidence or appears reasonably calculated to lead to the discovery
of admissible evidence.”11 (Code Civ. Proc., § 2017.010.) Given this broad scope of
discovery, we cannot conclude that the District’s questions were plainly irrelevant to
material issues in A.B.’s dismissal proceeding.
B. 	Illegal Objective
The Association filed a cross-exception to the ALJ’s conclusion that there was
no evidence that the District had an illegal objective when questioning
Montague-Hanson. A discovery request has an illegal objective when an employer
seeks to identify employees who support a union. (Dilling Mechanical Contractors, Inc.
(2011) 357 NLRB 544, 546; see Wright Electric, supra, 327 NLRB at p. 1195
[discovery request seeking names of employees who signed authorization cards has
an illegal objective].) However, caselaw is unclear what other discovery requests
evidence an illegal objective. We need not resolve that issue in this case because
even if we were to agree that there was an illegal objective to the District’s questioning
of Montague-Hanson, it would not change the outcome since, as explained post, the
District’s interest in obtaining the information sought does not outweigh the harm to
protected rights from disclosure of the information. Accordingly, we dismiss the
Association’s exception. (See Fremont Unified School District (2003) PERB Decision
No. 1528, p. 3 [“Absent good cause, the Board will dismiss as without merit any initial
11 The Civil Discovery Act is codified at Code of Civil Procedure section
2016.010 et seq.

14
exceptions filed by a prevailing party unless the Board’s ruling on the exceptions
would change the outcome of the ALJ decision”].)
C. 	Balancing Test
At the third step of the Guess?, Inc. analysis, we weigh the employer’s interest
in obtaining the information sought against the employees’ interest in nondisclosure of
the information. (Guess?, Inc., supra, 339 NLRB at p. 434.) As a general matter, the
NLRB has repeatedly recognized the importance of keeping employees’ Section 7
activities confidential because the willingness of employees to engage in those
activities would be undermined if an employer could easily obtain such information.12
(Guess?, Inc., supra, 339 NLRB at p. 434; Wright Electric, supra, 327 NLRB at
p. 1195.) In United Nurses Associations of California v. NLRB (9th Cir. 2017) 871 F.3d
767, the Ninth Circuit similarly held that:
“‘It is well settled that Section 7 of the [NLRA] gives
employees the right to keep confidential their union
activities.’ . . . [and] the Board here reasoned that ‘the
breadth of the subpoenas at issue here and the nature of
the information requested—encompassing communications
between employees and the Union . . . would subject
12 Codified at 29 U.S.C. § 157, Section 7 of the National Labor Relations Act
(NLRA) provides:
“Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized
in section 158(a)(3) of this title.”

15
employees’ [Section 7] activities to unwarranted
investigation and interrogation.’” (Id. at p. 785.)
In applying the Guess?, Inc. test, the NLRB has found employers’ attempts to
use litigation discovery to inquire into union activities as particularly indicative of
unlawful conduct. (Guess?, Inc., supra, 339 NLRB 432 [employer questioned an
employee during a workers’ compensation deposition about her activities at the union
hall and the names of other employees who attended union meetings]; Century
Restaurant & Buffet, Inc. (2012) 358 NLRB 143, 157 [employer asked during
depositions in a federal wage and hour lawsuit whether the employees were union
members]; Dilling Mechanical Contractors, Inc., supra, 357 NLRB at pp. 545-546
[employer propounded discovery in a state court action seeking the names of
employees who had joined the union]; Tower Industries Inc. (2007) 349 NLRB 1077,
1079-1083 [employer during a deposition in a state court lawsuit asked for the names
of employees who attended union meetings, what was discussed at union meetings,
and whether there were discussions at the meetings relating to efforts to organize at
the employer’s business]; Wright Electric, supra, 327 NLRB at p. 1195 [employer
propounded discovery in a state court action seeking copies of any authorization cards
obtained by the union].)
Similarly, PERB has recognized the harm that flows from an employer’s
inquiries into communications between employees and their union representatives:
“It is also beyond dispute that an employer’s inquiries into
discussions between employees and their union
representatives have a tendency to chill the protected
activities of both the employees and the representatives.
(E.g., County of Merced (2014) PERB Decision
No. 2361-M, pp. 7-8, 10 [employer order that union

16
president disclose identity of bargaining unit members
informing union of safety concerns constitutes
interference].) As the [NLRB] has explained, allowing an
employer to compel disclosure of the substance of
conversations between an employee and his or her union
steward ‘manifestly restrains employees in their willingness
to candidly discuss matters with their chosen, statutory
representatives’ and ‘inhibit[s] stewards in obtaining needed
information from employees.’ (Cook Paint & Varnish Co.
(1981) 258 NLRB 1230, 1232 (Cook Paint).) Such conduct
also interferes with protected rights more generally,
because it ‘cast[s] a chilling effect over all of [the]
employees and their stewards who seek to candidly
communicate with each other over matters’ concerning their
employment. (Ibid.)”
(William S. Hart Union High School District (2018) PERB Decision No. 2595, p. 6.)
Here, the District asked Montague-Hanson about her conversations with A.B.,
other Association bargaining unit members, and CTA staff, all of which concerned
protected activities. “Questions like these that are designed to uncover protected
activities have a chilling effect on the exercise of employee rights.” (City of Santa
Maria (2020) PERB Decision No. 2736-M, pp. 30-31, citing Guess?, Inc., supra,
339 NLRB 434.) Thus, Montague-Hanson, A.B., and other bargaining unit members
had a strong interest in Montague-Hanson not disclosing the content of their
conversations, as well as the identity of bargaining unit members who spoke with
Montague-Hanson about A.B., for fear that the District could ask the union
representative about any conversation and use that information against them.
While we found that the questions were potentially relevant to the dismissal
proceeding, the District’s interest in obtaining the information from Montague-Hanson
does not outweigh Montague-Hanson’s and the bargaining unit employees’

17
confidentiality interests. As the ALJ found, there was no evidence Montague-Hanson
was the only source of information about A.B.’s conduct or that the District had
exhausted other avenues before seeking this information from Montague-Hanson.
Indeed, the District had the ability to obtain much of the information it sought from
Montague-Hanson through witnesses who had personal knowledge of the conduct
underlying the allegations in the Statement of Charges, such as those District
employees interviewed during the investigation. However, as the District concedes in
its exceptions, it instead attempted to elicit details about bargaining unit employees’
conversations with Montague-Hanson to gain further incriminating information,
including potential admissions by A.B. of wrongdoing. As we observed in William
S. Hart Union High School District, supra, PERB Decision No. 2595, it is improper for
an employer to deputize a union representative as a source of incriminating evidence
against an accused employee because doing so chills employees’ willingness to
speak candidly to their union representatives. (Id. at p. 9.)
Further, the questions asked of Montague-Hanson were broad in scope and not
narrowly tailored to the allegations in the Statement of Charges or Montague-Hanson’s
involvement in A.B.’s defenses, particularly regarding A.B.’s claims of retaliation for
reporting unsafe working conditions and requesting accommodations. If the District
had narrowly tailored its questions to Montague-Hanson’s involvement in co-authoring
the August 28, 2018 complaint, her personal observations of A.B.’s misconduct, or her
involvement in securing accommodations for A.B., the District’s interest in obtaining
that information may have outweighed the harm to protected rights. (See City of San
Diego (2020) PERB Decision No. 2747-M, p. 37, fn. 19 [an employer may successfully

18
defend against an interference allegation by showing “it narrowly tailored its actions or
rules to attain [an important] purpose while limiting harm to protected rights to the
extent possible”].) However, with regard to most of the questions, the District’s need
for the answers does not outweigh the employees’ strong interest in confidentiality.
The District argues, however, that A.B. and other bargaining unit employees
waived their confidentiality interest by providing information about their
communications with Montague-Hanson to the District. As part of his disclosures in
the dismissal appeal, A.B. produced Montague-Hanson’s notes from a meeting with
A.B. as well as e-mail correspondence between A.B. and Montague-Hanson. While
this may have weakened A.B.’s confidentiality interest as to these particular
communications, it did not amount to a blanket waiver of confidentiality as to all of
A.B’s communications with Montague-Hanson.
As for the argument that other bargaining unit members waived their
confidentiality interest in their communications with Montague-Hanson, the District
provides no citations to the record for this argument, and we therefore need not
consider it. (See PERB Reg. 32300, subd. (a) [“The statement of exceptions shall . . .
(2) cite to the relevant exhibit or transcript page in the case record to support factual
arguments”]; id. at subdivision (d) [“Absent good cause, a statement of exceptions that
does not comply with this Section will not be considered by the Board itself”]; see
WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894
[“Rather than scour the record unguided, we may decide that the appellant has
forfeited a point urged on appeal when it is not supported by accurate citations to the
record”].)

19
In sum, the District’s interest in the questions posed to Montague-Hanson at her
deposition does not outweigh Montague-Hanson’s, A.B.’s, and other bargaining unit
employees’ strong interest in maintaining the confidentiality of their EERA-protected
communications. Accordingly, the District unlawfully interfered with protected rights in
violation of EERA section 3543.5, subdivision (a).
II. 	Affirmative Defenses
As affirmative defenses, the District argues that PERB lacks jurisdiction over
the parties’ dispute because discovery issues related to A.B.’s dismissal matter were
under the exclusive jurisdiction of the OAH and because the Association failed to
exhaust its administrative remedies.13 We find no merit to these defenses.
A. 	Jurisdiction
“To avoid acting in excess of its authority, PERB has an obligation to determine
whether it has jurisdiction over a dispute, regardless of whether the parties themselves
have raised the issue.” (Lake Elsinore Unified School District (2018) PERB Decision
No. 2548, p. 11.) EERA section 3541.5 explicitly states that “the initial determination
as to whether the charges of unfair practices are justified . . . shall be a matter within
the exclusive jurisdiction of the board.” Further, the Legislature has given PERB “a
specialized . . . and . . . focused task: to protect both employees and . . . employer[s]
from violations of the organizational and collective bargaining rights guaranteed by
13 The District waived its mootness argument by not excepting to the ALJ’s
finding that this case is not moot. In the absence of a specific exception, the ALJ’s
conclusion is not before us and is non-precedential. (County of Santa Clara, supra,
PERB Decision No. 2613-M, p. 2, fn. 2; PERB Reg. 32300, subd. (e).) We accordingly
express no opinion on whether the ALJ’s conclusion was correct.

20
[EERA] . . . [PERB is] . . . an agency which possesses and can further develop
specialized expertise in the labor relations field.” (Pacific Legal Foundation v. Brown
(1981) 29 Cal.3d 168, 198.) Accordingly, courts have consistently upheld PERB’s
primary and exclusive jurisdiction over alleged unfair practices. (See, e.g., Curcio
v. Fontana Teachers Assn. CTA/NEA (2021) 68 Cal.App.5th 924, 932; Public
Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881,
895.)
The District argues that because Education Code section 44944 grants OAH
jurisdiction over teacher dismissal proceedings, including pre-hearing discovery (see
Ed. Code, § 44944, subd. (c)), PERB lacks jurisdiction over the parties’ dispute. As we
recently reaffirmed in Cerritos Community College District (2022) PERB Decision
No. 2819 (judicial appeal pending), the Education Code does not preempt EERA when
there is no conflict between the two statutes. (Id. at pp. 21-23.) For example, PERB
has rejected the argument that it lacked jurisdiction over a claim that a certificated
employee was nonrenewed because of his EERA-protected activity, finding no conflict
between the Education Code’s procedure for determining cause for nonrenewal and
PERB’s inquiry into whether this particular nonrenewal was motivated by protected
activity. (Baker Valley Unified School District (2008) PERB Decision No. 1993,
pp. 14-15.) Similarly, PERB’s inquiry in this case into whether the District’s questioning
of Montague-Hanson interfered with EERA-protected rights is not in conflict with the
Education Code’s provisions for pre-hearing discovery in teacher dismissal
proceedings. The District’s argument that the Education Code preempts PERB’s
jurisdiction in this case consequently fails.

21
The District also cites to portions of the ALJ’s decision in Wright Electric, supra,
327 NLRB 1194, for the proposition that PERB should refrain from the “micro-
management” of litigation in other venues because doing so interferes with those
courts’ ability to determine factual and legal issues relevant to their jurisdiction.
However, the District cites to a portion of the ALJ’s decision in Wright Electric, supra,
327 NLRB 1194 that was not adopted by the NLRB. Rather, the NLRB found that
because the employer’s discovery demand sought the names of employees who
signed union authorization cards, it had an objective that was illegal under federal
labor law and therefore could be enjoined. (Id. at pp. 1195-1196.) Wright Electric thus
does not help the District.
Here, the complaint alleged that the District interfered with employee and
Association rights under EERA by extensively questioning Montague-Hanson
regarding protected communications with A.B., other unit members, and Murray. Such
allegations are squarely within PERB’s jurisdiction. Thus, we uphold the ALJ’s
rejection of the District’s defense that PERB lacks jurisdiction in this matter.
B. 	Failure to Exhaust Administrative Remedies
The District argues that because the Association did not move to quash
Montague-Hanson’s deposition subpoena nor instruct her not to answer the questions
objected to, it failed to exhaust its administrative remedies and therefore is barred
from bringing this charge. We disagree.
The District first cites to County of Tehama (2010) PERB Decision No. 2122-M
(County of Tehama) to argue that the Association did not follow the procedures for
discovery disputes during the OAH proceeding, thus precluding it from bringing that

22
claim before PERB. However, County of Tehama does not discuss failure to follow
procedures at another administrative agency. Rather, the ALJ in that case denied a
motion to exclude evidence based on the employer’s alleged failure to respond to an
information request because the charging party failed to subpoena those documents
pursuant to PERB regulations. (Id. at pp. 10-11.) Therefore, the District’s reliance on
County of Tehama is misplaced.
The District also cites to OE3 to support this claim, where PERB found that the
charging parties’ failure to object to their employer’s disclosure of their work e-mails
undercut their claim. (OE3, supra, PERB Decision No. 2782-M, p. 16.) OE3 does not
stand for the proposition that a charging party must exhaust all administrative
remedies in another forum prior to filing a charge alleging interference. Even if that
were the case, during the deposition Amar objected to questions individually and
lodged a standing objection to any questions about communications protected by
associational privacy. We find those objections sufficient to preserve the issue for
PERB’s review.
III. 	Remedy
A “properly designed remedial order seeks a restoration of the situation as
nearly as possible to that which would have obtained but for the unfair labor practice.”
(Modesto City Schools (1983) PERB Decision No. 291, pp. 67-68.) A remedy should
also serve to deter future misconduct, so long as the order is not a patent attempt to
achieve ends other than those which can fairly be said to effectuate the policies of the
Act. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 3.)
The District argues that affirming the ALJ’s proposed remedy would be highly

23
prejudicial because it would preclude the deposition or testimony of an employee due
to their role in the union. That is simply not true. The ALJ ordered the District to cease
and desist from unlawfully interrogating union representatives about union activities
and their communications with bargaining unit members. Such an order would not
preclude an employer from deposing or questioning a union representative about
matters the individual personally witnessed or any matter that does not involve
EERA-protected activities. And as discussed ante, an employer may lawfully inquire
into a union representative’s communications with bargaining unit members when its
need for the information outweighs the employees’ interest in confidentiality. We thus
affirm and adopt the ALJ’s proposed cease-and-desist order.
Additionally, the District excepts to the ALJ’s order to pay the Association four
hours in attorney fees to make the Association whole for the time it spent defending
EERA-protected rights during the deposition. As the District notes, the ALJ found the
District’s defenses were not without arguable merit and were not pursued in bad faith.
But PERB may order payment of attorney fees “when a party seeks to be made whole
for legal expenses it reasonably incurred in a separate proceeding to remedy, lessen,
or stave off the impacts of the other party’s unfair practice.” (Sacramento City Unified
School District (2020) PERB Decision No. 2749, pp. 11-12.) The District also claims
an order to pay attorney fees is inappropriate because the District had a legal right to
take Montague-Hanson’s deposition. While the right to take the deposition is not in
question, the District cannot exercise that right in a way that interferes with
EERA-protected rights. (Cf. City of San Diego, supra, PERB Decision No. 2747-M,
p. 29 [when an employer has a managerial, statutory, or contractual right to take an

24
employment action, its decision to act cannot be based on an unlawful motive, intent,
or purpose].) Because the deposition would have been much shorter without the
questioning into Montague-Hanson’s representational communications with A.B., other
bargaining unit members, and CTA staff, it is appropriate to require the District to
reimburse the Association for its reasonable attorney fees incurred and thereby make
it whole. (Sacramento City Unified School District, supra, PERB Decision No. 2749,
pp. 11-14; Omnitrans (2009) PERB Decision No. 2030-M, p. 30.) We therefore affirm
the ALJ’s order to pay the Association four hours in attorney fees as a reasonable
approximation of what was necessary to defend the District’s unlawful deposition
questioning.
ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire
record in this case, it is found that the Victor Valley Union High School District violated
the Educational Employment Relations Act (EERA), Government Code section 3540
et seq., when, during a deposition, its attorney asked Victor Valley Teachers
Association (Association) President Kathleen Montague-Hanson questions about:
(1) confidential communications she had with a bargaining unit member concerning a
disciplinary matter in which she advised that member; and (2) confidential
communications she had with other bargaining unit members and union personnel
about the disciplinary matter.

25
Pursuant to EERA section 3541.5, subdivision (c), it is hereby ORDERED that
the District, its governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unlawfully interrogating union leaders about union activities and
their communications with bargaining unit members.
2. 	Interfering with the right of the Association to represent bargaining
unit employees.
3. 	Interfering with the right of bargaining unit employees to be
represented by the Association.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE ACT:
1. 	Pay the Association four hours of attorney fees.
2. 	Within 10 workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to District employees in the
bargaining unit(s) represented by the Association are customarily posted, copies of
the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that it will comply with the terms of this
Order. Such posting shall be maintained for a period of 30 consecutive workdays.14 In
14 In light of the ongoing COVID-19 pandemic, the District shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If the District
so notifies OGC, or if the Association requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in

26
addition to physical posting of paper notices, the Notice shall be posted by electronic
message, intranet, internet site, and other electronic means customarily used by the
District to communicate with employees in the bargaining unit represented by the
Association. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced, or covered with any other material.
3. 	Within 30 workdays after this decision is no longer subject to
appeal, notify the PERB General Counsel or designee in writing of the steps taken to
comply with the terms of this Order. Continue to report in writing to the General
Counsel, or designee, periodically thereafter as directed. All reports regarding
compliance with this Order shall be served concurrently on the Association.
Chair Banks and Member Paulson joined in this Decision.
which employees receive notice, OGC shall investigate and solicit input from all
relevant parties. OGC shall provide amended instructions to the extent appropriate to
ensure adequate publication of the Notice, such as directing the District to commence
posting within 10 workdays after a majority of employees have resumed physically
reporting on a regular basis; directing the District to mail the Notice to all employees
who are not regularly reporting to any work location due to the extraordinary
circumstance, including those who are on a short term or indefinite furlough, are on
layoff subject to recall, or are working from home; or directing the District to mail the
Notice to those employees with whom it does not customarily communicate through
electronic means.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-6562-E, Victor Valley
Teachers Association v. Victor Valley Union High School District, in which all parties
had the right to participate, it has been found that Victor Valley Union High School
District violated the Educational Employment Relations Act (EERA), Government
Code section 3540 et seq., when, during a deposition, its attorney asked Victor Valley
Teachers Association (Association) President Kathleen Montague-Hanson questions
about: (1) confidential communications she had with a member concerning a
disciplinary matter in which she advised that member; and (2) confidential
communications she had with other union members and union personnel about the
disciplinary matter.
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Unlawfully interrogating union leaders about union activities and
their communications with members.
2. 	Interfering with the right of the Association to represent bargaining
unit employees.
3. 	Interfering with the right of bargaining unit employees to be
represented by the Association.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
1. 	Pay the Association four hours of attorney fees.
Dated: _____________________ 	VICTOR VALLEY UNION HIGH SCHOOL
DISTRICT
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.