Compton Unified School District (PERB 1518E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

COMPTON EDUCATION ASSOCIATION,
Charging Party, Case No. LA-CE-4245-E

V. PERB Decision No. 1518

COMPTON UNIFIED SCHOOL DISTRICT, April 18, 2003

Respondent.

Appearances: California Teachers Association by Brenda E. Sutton-Wills, Attorney, for
Compton Education Association; Jones & Matson by Urrea C. Jones, Jr., Attorney, for
Compton Unified School District.

Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Compton Unified School District (District) to an

administrative law judge’s (ALJ) proposed decision (attached) which found that the District

violated the Educational Employment Relations Act (EERA) section 3543.5(a) and (b)' by

' EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. Section 3543.5
provides, in pertinent part:

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.

interfering with the right
of
employees to participate in the activities
of
employee organizations
and by retaliating against an employee who participated in protected activities.
After reviewing the entire record in this case, including the proposed decision, the
District's exceptions2 and the Compton Education Association's (Association) response, the
Board adopts the proposed decision
of
the ALJ
as
the decision
of
the Board itself
as
modified
by the following discussion.
DISCUSSION
The ALJ determined that the District violated EERA by: (1) interfering with employee
rights when Principal Alphonso Dimaano (Dimaano) ratified a threat by bargaining unit
member Stacey Nickelberry (Nickelberry) to new teachers that they should immediately leave
a union meeting; (2) interfering with employee rights when Dimaano asked bargaining unit
member Gina Gatto (Gatto) to reveal the identity
of
persons attending the union meeting; and
(3) retaliating against Gatto by removing her from the school leadership team when she refused
to identify the person responsible for calling the union meeting.
The District excepts to a finding
of
a violation based on an agency relationship between
Nickelberry and Dimaano attributable to the District on a ratification theory because the
District was not put on notice by the complaint that an agency relationship was at issue. Even
if
an agency relationship was properly considered, the District argues that the ALJ erred in
applying the standard
of
the National Labor Relations Board (NLRB) to find agency by
ratification.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
2 The District's request for oral argument is denied.
2

Unalleged Violation
A major contention
of
the District both before the ALJ and on appeal is whether the
complaint allows the District to be charged with Nickelberry's conduct. The District contends
the complaint failed to allege Nickelberry was an agent
of
the District and that it was not put
on notice that agency was at issue in this case.
The allegation in the complaint was that Dimaano "instructed bargaining unit member
Stacey Nickelberry to interrupt Charging Party's meeting and warn all new teachers and non-
tenured teachers not to be influenced
by
Charging Party or else risk losing their jobs."
	We
agree with the ALJ that the obvious implication
of
this allegation is that had Nickelberry
carried out the alleged instruction, she would have been serving as an agent ofDimaano. We
further agree that even
if
an agency allegation was not found in the words
of
the complaint, the
matter meets the requirements for consideration as an unalleged violation. The Board noted in
Tahoe-Truckee Unified School District (1988) PERB Decision No. 668 (Tahoe-Truckee) that:
...
unalleged violations may be entertained
...
when adequate
notice and the opportunity to defend has been provided [to] the
respondent, and where such acts are intimately related to the
subject matter
of
the complaint, are part
of
the same course
of
conduct, have been fully litigated, and the parties have had the
opportunity to examine and be cross examined on the issue.
The ALJ correctly found that agency is "not a subtle, hidden issue" in the dispute. It
was addressed at the hearing; both parties presented evidence on the issue and cross-examined
the witnesses
of
the other side about the question
of
agency. Both parties were instructed to
brief the question
of
agency and did so. The record supports the ALJ's findings. 	We find that
all the requirements set forth in Tahoe-Truckee for establishing an unalleged violation have
been met and the agency question is properly before the Board.
3

Agency
The ALJ concluded that as the facts show Nickelberry was not a management
or
supervisory employee, she was not an actual agent
of
the District. The ALJ further concluded
that the facts failed to establish her ostensible or apparent authority to act on behalf of.the
District when she entered the Association meeting and warned all new teachers to leave. 	We
agree with the ALJ that it was not established that Nickleberry was an actual agent
of
the
District.
Apparent authority may be found from manifestations by the employer that create a
reasonable basis for employees to believe that the employer has authorized the alleged agent to
perform the act in question. (Inglewood Teachers Assn.
v.
Public Employment Relations Bd.
(1991) 227 Cal.App.3d 767, 781 [278 Cal.Rptr. 228] (Inglewood).) In Inglewood Unified
School District (1990) PERB Decision No. 792, the Board adopted the approach
of
Member
Gonzales in Antelope Valley Community College District (1979) PERB Decision No. 97.
Therein, he observed:
Governing boards are responsible for the overall direction
of
school districts, but day-to-day decisions and actions, which may
directly affect the organizational rights
of
employees, are often
made by subordinates without specific authorization or
ratification by the governing board. It is reasonable that under
some circumstances employees may perceive their employer as
responsible for such decisions and actions, regardless
of
whether
the governing board itself is directly involved. Under other
circumstances, such a perception may be unreasonable, and it
may thus be inappropriate to attribute these actions to the
employer. The question is in what situations should the employer
be held responsible for acts by subordinates which are unlawful
under section 3543.5.
In Inglewood, the Board recognized the need for a cautious case-by-case approach to a
determination of ostensible or apparent authority when considering an agency relationship
4

under EERA. The test is whether the perception
of
agency is reasonable under the
circumstances. 3
Following a finding that Nickleberry was not an agent
of
the District, the ALJ
determined that the District adopted or ratified her actions. The ALJ followed the well
established principal
of
labor law that where a party ratifies the conduct
of
another, that party
adopting the conduct accepts responsibility for any unfair practice implicated
by
the conduct.
(See Dowd v. International Longshoremen's Association, AFL-CIO (11 th Cir. 1992) 975
D.2d 779 [141 LRRM 2489, 2494].)
We find nothing in Inglewood that supports the District's contention that the Board
rejected this approach to employer responsibility. In Inglewood, the Board merely determine
that ratification had not been established because it had not been demonstrated that the
employer had knowledge
of
a lawsuit filed
by
a high school principal against the teachers
association. Without such knowledge, there was no reason for the employer to disavow the
suit. The court approved the Board's approach to ratification. (Inglewood.)
d
Here, Dimaano knew that Nickelberry attended the Association meeting and threatened
new teachers that they should immediately leave. Knowing about this conduct, he not only
failed to repudiate it, he called the room and interrupted the meeting. He summoned Gatto to
his office. There he questioned her about the Association meeting and removed her from the
3 This approach is consistent with that currently applied by the NLRB. The NLRB test
is whether under all the circumstances, employees "would reasonably believe that the
employee in question ( alleged agent) was reflecting company policy and speaking and acting
for management." (See Great American Products (1993) 312 NLRB 962 [145 LRRM 1150]
and the cases cited therein.)
5

leadership team. Through his refusal to disavow Nicklelberry' s actions and by his own
actions, Dimaano ratified Nickelberry's threats and interfered with employee rights. 1
ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that the Compton Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.5(a) and (b).
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. CEASE AND DESIST FROM:
1. 	Threatening new teachers and warning them to leave meetings of the Compton
Education Association (Association).
2. 	Asking teachers to reveal the identity of the person or persons who called an
Association meeting.
3. 	Retaliating against any teacher who refused to answer any question about the
identity of the person or persons who called an Association meeting.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten (10) workdays following the date this Decision is no longer subject
to appeal, offer teacher Gina Gatto an opportunity to resume her service on the Walton Middle
School leadership team and reinstate her to the leadership team if she desires it.
1 The remaining exceptions raised by the District were properly considered and
resolved by the ALJ. No further discussion is required here.
6

2. 	Within ten (10) workdays following the date this Decision is no longer subject
to appeal, post at all locations where notices are customarily posted, copies of the notice
attached hereto as an Appendix.
3. 	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 the director's instructions. Continue to report in writing to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on the Association.
Members Whitehead and Neimajoined in this Decision.
7

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-4245-E, Compton Education
Association v. Compton Unified School District, in which all parties had the right to
participate, it has been found that the Compton Unified School District violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a) and (b)
by interfering with the right
of
employees to participate in the activities
of
employee
organizations and by retaliating against an employee who participated in protected activities.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Threatening new teachers and warning them to leave meetings
of
the
Compton Education Association (Association).
2.	
Asking teachers to reveal the identity
of
the person or persons who called an
Assoc1at10n meeting.
3.	
Retaliating against any teacher who refused to answer any question about the
identity
of
the person or persons who called an Association meeting.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
Within ten (10) workdays following the date this decision is no longer subject to
appeal
of
the service, offer teacher Gina Gatto an opportunity to resume her
service on the Walton Middle School leadership team and reinstate her to the
leadership team
if
she desires it.
Dated: 	COMPTON UNIFIED SCHOOL DISTRICT
By:
-------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED fN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
COMPTON EDUCATION ASSOCIATION,
Charging Party,
V.
COMPTON UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4245-E
PROPOSED DECISION
(8/24/01)
Appearances: California Teachers Association by Brenda E. Sutton-Wills, Staff Counsel, for
Compton Education Association; Jones & Matson by Urrea Jones and Marcos F. Hernandez,
Attorneys, for Compton Unified School District.
Before Ronald E. Blubaugh, Administrative Law Judge.
PROCEDURAL HISTORY
A union representing teachers contends here that at the instigation of a school principal,
a non-teaching unit member disrupted a union meeting by bursting into the room and warning
all new teachers in attendance that they should leave immediately. The union contends that the
principal then called one of the teachers in attendance to his office, questioned her about the
meeting and removed her from a committee because she would not answer his questions. The
school employer replies that the teacher who disrupted the meeting was acting entirely on her
own and without the authority of the principal. The employer asserts further that the principal
questioned the teacher in order to determine whether the union had secured proper
authorization to use the school room for its meeting.
The Compton Education Association (Union) commenced this action on December 1,
2000, by filing an unfair practice charge against the Compton Unified School District
(District). The Office of the General Counsel of the Public Employment Relations Board

(PERB or Board) followed on February 7, 2001, with a complaint against the District. The
complaint alleges that on or about September 28, 2000, the District, acting through its agent
Principal Alphonso Dimaano, instructed bargaining unit member Stacey Nickelberry to
interrupt a Union meeting and warn all new teachers and non-tenured teachers not to be
influenced by the Union or else risk losing their jobs. The complaint further alleges that
Mr. Dimaano then interrogated unit member Gina Gatto about the identity of the person who
organized the meeting. Finally, the complaint alleges, Mr. Dimaano threatened Ms. Gatto with
loss of membership on the school leadership team. By these acts, the complaint alleges, the
District violated Educational Employment Relations Act (EERA) section 3543.5(a) and (b). 1
The District answered the complaint on March 1, 2001, denying any wrong-doing. A
hearing was conducted in Los Angeles on May 30, 2001. After the filing of post-hearing
briefs, the matter was submitted for decision on August 13, 2001.
FINDINGS OF FACT
The District is a public school employer as defined in section 3540. l(k) of the EERA.
The Union is an employee organization as defined in section 3540.l(d) and at all times
relevant has been the exclusive representative, as defined in section 3540.1 (e), of an
appropriate unit of the District's certificated employees. There was no collective bargaining
1Unless otherwise indicated, all statutory references are to the Government Code. The
EERA is codified at section 3540 et seq. In relevant part, section 3543.5 provides 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 ....
2

agreement in effect between the parties during the relevant period. The prior agreement
had
expired on June 30, 2000, and the successor agreement did not go into effect until sometime
after February 23, 2001.
The events at issue took place at the District's Walton Middle School. At all times
relevant, the principal at Walton was Alphonso Dimaano. Mr. Dimaano has been employed
by
the District for 32 years and has been at Walton since July
of
2000.
During the relevant period, Stacey Nickelberry was a non-teaching member
of
the
certificated bargaining unit. Ms. Nickelberry was employed as the Project Facilitator at
Walton. In this position, she coordinated, implemented and evaluated specially funded
programs designed to meet the particular needs
of
students at Walton. Mr. Dimaano testified
that Ms. Nickelberry provided guidance to teachers in implementing the programs and assisted
him in program evaluation. He said that from "time to time" Ms. Nickelberry provided
"feedback" on how particular teachers are performing. Asked
if
he considered
Ms. Nickelbemy's feedback in making teacher evaluations, Mr. Dimaano replied: "The
decisions are made will be -- will be part
of
that." Alfonso Matta, the long-time Union
representative at Walton, testified "all
of
the teachers assumed that she [Ms. Nickelberry] was
like an administrator." He said she worked in an office "and we assumed that she was, in a
way, part
of
the administration."
At all times relevant, Gina Gatto was a teacher
of
developmental reading to seventh and
eighth grade students at Walton. At the time
of
the hearing, she had been a teacher for three
years and four months and had been employed at Walton for two years. She was not a Union
representative at Walton. Until the events at issue, she served on the school leadership team.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
3

The leadership team is composed of teachers, parents, school plant workers and others who are
"stake holders" of the school. Ms. Walton had been requested to serve on the team by the
principal who preceded Mr. Dimaano. She testified that when she was on the team she spent
two hours every week to plan curriculum and other activities to improve student achievement.
She described the activities of the team as "obviously something that's quite worth while."
On September 28, 2000, an after-school meeting of Walton teachers was scheduled by
someone involved in the Union. The identity of the person who arranged for the meeting was
not disclosed at the hearing but it is. clear that the meeting was conducted under the aegis of the
Union. Thomas Hollister, executive director of the Compton Education Association,
CTA/NEA, testified that he was called by a Union faculty representative at Walton and told
that the teachers wanted to have a Union meeting and that they wanted him to attend.
Mr. Hollister said the purpose of the meeting "was to discuss some issues that they had,
one of them being banked time,[2] and a number of other issues." Ms. Gatto testified that
"[t]here was a general concern ... about the principal ... and all the teachers knew it, and all
the plant staff knew it, and everybody knew it, that we were having concerns about this
principal." This knowledge was so widespread, Ms. Gatto testified, that Ms. Nickelberry
almost certainly would have known that is why the teachers were getting together.
The meeting was held in a classroom at Walton, beginning at about 3:30 p.m., a time
after the conclusion of the teacher workday. Ms. Gatto testified that as teachers were coming
into the room, Ms. Nickelberry entered and addressed the group. Ms. Gatto testified that
Ms. Nickelberry looked around the room and stated that "anyone that does not have a
credential, is not already credentialed or has -- is on [an] emergency [credential], that they
2Mr. Hollister did not explain what was encompassed by "banked time."
4

need to leave the meeting." Ms. Gatto testified that she interrupted Ms. Nickelberry and asked
"are you kidding?" Ms. Gatto testified that Ms. Nickelberry then "put her hand up and she
said, 'I'm not talking to you,' and she said, '[ all you] new teachers need to get up,' and she used
her finger and waved it and, [said] 'get out now."' Ms. Gatto said that in making the comment
Ms. Nickelberry "waved sort of over to that side of the room where there were some new
teachers sitting, so I guess about three of them came up from that table, but they came from
everywhere." Ms. Gatto estimated that "at least five" of the new teachers left the room,
accompanied by Ms. Nickelberry.
Mr. Matta, who also witnessed the incident, offered a similar description of
Ms. Nickelberry's actions. Mr. Matta testified:
... Ms. Nickelberrry came to the door opening and kind of
looked around at first, and she said something to the fact that if
there are any non-credentialized [sic] or non-something-or-other
of teachers that didn't have a contract, non-signed-contract,
because a lot of them were temporary, and you're at the meeting,
if you know what's good for you, you better leave now. And
there were a lot of new teachers there.
They had a very startled look on their face[ s] and they left.
Union Executive Director Hollister arrived at the meeting within 5 minutes after the
incident with Ms. Nickelberry. He said several teachers were walking away from the room just
as he arrived. In the room, he testified, he found the remaining teachers angry and frustrated.
He said several told him that some of the teachers in attendance had been threatened into
leaving by Ms. Nickelberry. He said the teachers remaining in the meeting expressed a view
that the interruption "was coming from Mr. Dimaano, through Ms. Nickelberry." He said the
teachers asked him, "can they do that?" He replied that teachers had a protected right to meet.
5

However, he continued, "the new teachers had already left the room and we didn't attempt to
go back and get them."
Mr. Dimaano testified that he had not known about the teacher meeting until
Ms. Nickelberry told him about it. He said that Ms. Nickelberry came into the office and told
him "there was some meeting going on in Ms. Gatto's room." He continued:
Ms. Nickelberry told me that there were teachers there, and that
she said to the group -- I don't know who were there -- that if
you're temporary contract teachers, you better not be in this
meeting, and that's all I can remember.
Mr. Dimaano said that Ms. Nickelberry was not acting on his orders, or under his authority,
when she went to the room where the meeting was underway. He said he did not remember
whether he had a subsequent discussion with Ms. Nickelberry about the propriety of her action.
Asked if he took any steps to ensure that teachers did not think Ms. Nickelberry was acting
under his authority, Ms. Dimaano replied: 	"No, I didn't. I couldn't." He said he couldn't have
taken any action "because Ms. Nickelberry is part of the group or, you know, she's there, you
know, and she's speaking on her own."
After Ms. Nickelberry told him about the meeting, Mr. Dimaano testified, he "right at
that time" called Ms. Gatto at the classroom where the meeting was taking place. He said he
called Ms. Gatto because "I thought I was entitled to knowing [sic] what's going on in the
campus, as principal."
Ms. Gatto testified that Mr. Dimaano called twice to the room where the meeting was
taking place and asked to speak to her. The first time, she testified, she told him "that I was in
a union meeting." She said he called again and told her "I absolutely had to come down to his
office, that he needed to speak to me." She said that he was standing behind his desk when she
arrived. 	She continued:
6

... and I said, what do you need right now, I'm in a meeting, and
he said, "what meeting, who called a meeting?" And I said, well,
I didn't call a union meeting, ...
Ms. Gatto said the principal again asked, "who called the union?" By this time, Ms. Gatto
testified, she said she got the impression that Mr. Dimaano believed she had called the
meeting. 	She said she again told him that she had not. She quoted Mr. Dimaano as then
stating:
... "well, if you cannot support me, Ms. Gatto," and that is
exactly what he said, "if you cannot support me, Ms. Gatto, then I
cannot have you on the leadership team."
Ms. Gatto testified that she interrupted him by stating , "I can support the school."
Upon being told that she would be removed from the leadership team, Ms. Gatto
testified, she removed herself from the position of seventh grade chair. She testified:
... And I said, well, if you don't want me on the leadership team,
then I won't be seventh grade chair either, because I was also the
seventh grade chair. And he said -- questioned that, and I said,
well, I -- I said, if I'm not on the leadership team, then I'm not the
seventh grade chair, either, do you need it in writing. And he
said, no, he did not need it in writing.
Ms. Gatto's testimony was corroborated in substantial part by Mr. Hollister who
testified that he was in the room when the phone rang. He said the phone rang twice and he
did not know who called the first time. The second time, he testified,
... Ms. Gatto was called to the phone, told it was for her, and
when she got to the phone she indicated that it was Mr. Dimaano
on the end, the principal of Walton Middle School, and we could
hear her talking. Everybody stopped talking so that we could
listen in. And we could hear her say that she was at a meeting
here and that -- and then when she hung up, she turned to the
people there and said, "I have to go to the office, Mr. Dimaano
said he needs to see me right away," and so she left the room and
came back probably about ten minutes later, and was very upset,
said that Mr. Dimaano had asked her who was at the meeting.
She refused to answer that question and she said that he then
asked her who called the meeting. She would not give him that
7

information, either, and so he told her that if she couldn't give
that kind of information and [be] cooperative with him in that
way, that she had no business being on his leadership team, and
so she indicated that she was no longer on the leadership team.
Mr. Dimaano testified that he could not remember whether his conversation with
Ms. Gatto that day was on the telephone or if she came to his office. He described his
conversation with Ms. Gatto as follows:
I asked her what is going on and she said, "I don't know." I
believe I asked the question -- I can't even remember what, you
know, what is going on and she says "I don't know," and that's as
far as, you know, I can remember what went on.
Mr. Dimaano said there was no discussion about Ms. Gatto's assignment as department
chair. He said he could not recall any other statements that were made by him or Ms. Gatto.
Asked if he asked Ms. Gatto who called the meeting, he testified, "I don't remember." Asked if
he asked Ms. Gatto who attended the meeting, he said, "No." Asked ifhe said anything to
Ms. Gatto about backing or supporting him, he said, "No." Asked if he discussed the
leadership team with Ms. Gatto, Mr. Dimaano said, "No." He said, "I don't remember what
else transpired, really." Asked ifhe remembered how the conversation ended, he replied: 	"No,
I don't remember how it ended."
Mr. Dimaano testified that Ms. Gatto removed herself from the leadership team in
November or December of 2000. Asked how this came about, Mr. Dimaano said: "[O]ne day
she came to me with a note saying that [she was] resigning from, you know, [the] leadership
team." He said there was no discussion about it. "I just accepted the resignation." Asked
if Ms. Gatto gave him any explanation when she resigned from the leadership team,
Mr. Dimaano replied, "No, she didn't." Asked ifhe had a copy of the note that Ms. Gatto gave
him when she resigned from the leadership team, Mr. Dimaano said, "If I could find it, I
probably would have it." He said he "usually" saves that type of thing. Regarding how
8

Ms. Gatto came to leave the position as seventh grade chair, Mr. Dimaano testified, "I just
remember vaguely that she said she doesn't want to do it anymore, ... "
The District urges that this credibility dispute be resolved in favor of Mr. Dimaano.
Citing portions of the transcript, the District argues that Ms. Gatto acknowledged that she did
not recall exactly what Mr. Dimaano had asked her or his exact words and that she was
testifying only to the general context of the conversation. The District argues that because of
this uncertainty the Union has failed to establish by a preponderance of the evidence that
Mr. Dimaano threatened Ms. Gatto with loss of membership on the school leadership team.
The District's assertion is based in part on the following question counsel for the
District asked Ms. Gatto during the hearing:
Now, let's - let's go to the - the meeting with the principal. Do
you recall exactly what questions he asked you? Yes or no?
In response to this question, Ms. Gatto said, "No," an answer I do not find surprising. 	There
are very few people who could recall the exact words spoken in a conversation that occurred
some months earlier. 	However, Ms. Gatto did clearly remember the essential elements of the
conversation and summarized it on several occasions during her testimony.
Although the District's characterization makes Ms. Gatto's testimony appear hesitant
and uncertain and therefore unreliable, I found her testimony to be quite the opposite. I found
Ms. Gatto to be a forthright and animated witness who expressed a clear recollection of what
occurred at the meeting of September 28, 2000. I resolve the credibility dispute in favor of her
version of the meeting. 	On the witness stand, Ms. Gatto testified to some of the specific words
spoken by Mr. Dimaano and demonstrated a good recollection of what he said and what she
said. She articulated a believable relationship between how she came to leave both the
leadership team and her position as seventh grade chair at the same time.
9

Ms. Gatto's testimony about these events was consistent, moreover, with what she
stated to others only minutes after her meeting with Mr. Dimaano. Mr. Hollister confirmed
that Ms. Gatto received a telephone call during the meeting and that while she was on the
phone she indicated that it was Mr. Dimaano on the other end
of
the line. Mr. Hollister
confirmed that Ms. Gatto left the room and returned ten minutes later, highly upset.
Mr. Hollister's testimony about what Ms. Gatto stated upon returning from the meeting was
consistent in all essential detail with the version
of
the incident related by Ms. Gatto on the
witness stand. This includes Ms. Gatto's version
of
how she was separated from her positions
on the leadership team and as seventh grade chair.
I was totally unconvinced by Mr. Dimaano's stated inability to remember the details
of
his September 28 conversation with Ms. Gatto. He could remember hardly anything about the
conversation, from where it occurred to how it concluded. He testified that Ms. Gatto removed
herself from the leadership team by giving him a written memo, yet he did not produce the
memo at the hearing even though acknowledging that he normally keeps such memoranda. He
testified that he had no conversation at all with Ms. Gatto about her reasons for allegedly
resigning from the leadership team. Given the prominence that the leadership team was
accorded by the parties at Walton, I find it highly doubtful that he would not inquire why a
teacher had resigned,
if
in fact she had resigned. I also discount his stated inability to recall
any
of
the details
of
Ms. Gatto's supposed resignation from her position as seventh grade chair.
I also find it highly improbable that Mr. Dimaano would call Ms. Gatto to his office simply to
ask her what was going on and then drop the matter with that single question when she stated
that she did not know. 	Such behavior would be inconsistent with the urgency he attached to
his inquiry, by calling Ms. Gatto "right away," as soon as he learned of the teacher meeting
from Ms. Nickelberry.

Accordingly, I find that Mr. Dimaano did call Ms. Gatto to a meeting in his office on
September 28, 2000. I find that he did ask her who called the meeting
of
teachers then
underway in a school classroom and that he did ask her who was in attendance at the meeting.
I find that when Ms. Gatto answered that she did not know who called the meeting and
declined to tell him who was in attendance, Mr. Dimaano then told Ms. Gatto that
if
she could
not support him she could not continue as a member
of
the school leadership team. I find that
Ms. Gatto reasonably interpreted this comment as a statement that Mr. Dimaano was removing
her from the leadership team. I find that she thereupon resigned from her position as seventh
grade chair.
The contract in existence between the parties from July
1,
1997, through June 30, 2000,
allowed use
of
school facilities for Union meetings. In Section 5.3, the agreement provides:
The Association may conduct Association business on district
property outside
of
established hours when the Association has
obtained in advance a "Use
of
Faciiities" permit from the District.
No Union witness at the hearing had secured a Use
of
Facilities permit to use a classroom at
Walton Middle School for the meeting on September 28, 2000. No witness had knowledge
of
actions by any Union representative to secure a permit for the meeting
of
September 28, 2000.
Mr. Matta testified that he had scheduled Union meetings for
15
years at Walton and had never
secured a permit or sought permission in advance. Mr. Hollister testified that so far as he
knows the Union has no practice
of
securing permits in advance to use District facilities for
meetings
of
teachers at a single school. He said permits are secured only for meetings that
involve all
of
the teachers in the District.
11

LEGAL ISSUES
1.
Did the District interfere with the rights
of
employees to participate in activities
of
an employee organization when, on September 28, 2000, Stacey Nickelberry warned new
teachers that they should leave a Union meeting at Walton Middle School?
2.	
Did the District interfere with the rights
of
employees to participate in the activities
of
an employee organization when, on September 28, 2000, Alphonso Dimaano interrogated
Gina Gatto about the Union meeting at Walton Middle School?
3.
Did the District interfere with the rights
of
Gina Gatto to participate in the activities
of
an employee organization when, on September 28, 2000, Alphonso Dimaano removed her
from the leadership team at Walton Middle School?
CONCLUSIONS OF LAW
Agency
The Union argues that Ms. Nickelberry, although a member
of
the bargaining unit, was
acting as an agent for Mr. Dimaano when on September 28, 2000, she warned new teachers
that they should leave the Union meeting. The Union argues that even
if
Ms. Nickelberry
acted on her own initiative, she was emboldened by the day-to-day authority granted to her by
Mr. Dimaano. The Union asserts that Ms. Nickelberry instructs and directs unit members as
part
of
her duties as project coordinator. As a result, the Union asserts, she was acting with
apparent authority when she ordered the new teachers out
of
the meeting. Moreover, the
Union continues, Principal Dimaano approved and ratified Ms. Nickelberry's conduct. The
Union observes that Ms. Nickelberry told Mr. Dimaano what she had done as soon as she left
the meeting. Mr. Dimaano then called Ms. Gatto's classroom and demanded that she report to
him, actions which the Union characterizes as demonstrating approval for Ms. Nickelberry's
conduct. Then, the Union concludes, Mr. Dimaano reinforced the perception of
12

Ms. Nickelberry's authority by warning Ms. Gatto about the consequences
of
her refusal to
answer his questions.
The District rejects this interpretation, arguing first that the complaint fails to allege
that Ms. Nickelberry was an agent
of
the District and, because there was no motion to amend
the complaint to add this allegation, agency cannot be considered. Alternatively, the District
continues, even
if
agency is properly before the Board, the Union has failed to establish it. The
District argues that there was no showing
of
actual agency. At most, the District asserts, the
Union has shown that its members "assumed" that Ms. Nickelberry was a part
of
the
administration. However, the District continues, mere surmise as to the authority
of
a
supposed agent is insufficient to impose liability on the principal.
Moreover, the District continues, there is no evidence that would establish that
Ms. Nickelberry acted with ostensible or apparent authority. "Charging Party has not
established by a preponderance
of
the evidence that the District represented to anyone that
Ms. Nickelberry was its agent, that the Charging Party relied on any such representation, or
that Charging Party changed its position in reliance on any such representation," the District
argues. Finally, the District asserts, there was insufficient evidence to establish that the
District ratified any action
of
Ms. Nickelberry. In fact, the District concludes, Ms. Gatto
herself testified to a personal belief that Ms. Nickelberry was acting entirely on her own when
she went into the teacher meeting on September 28, 2000.
Whether Ms. Nickelberry's disruption
of
the September 28 Union meeting can be
charged to the District is the critical first question in this case. The District is responsible for
Ms. Nickelberry's conduct only
if
she was an actual agent of the District, or she acted under
apparent authority from the District, or, even in the absence of agency, the District ratified and
thereby adopted her conduct. This question, I conclude, was clearly placed at issue by the
13

allegation in the complaint that Mr. Dimaano "instructed bargaining unit member Stacey
Nickelberry to interrupt Charging Party's meeting and warn all new teachers and non-tenured
teachers not to be influenced by Charging Party else risk losing their jobs." The obvious
implication
of
this allegation is that Ms. Nickelberry, had she carried out the alleged
instruction, would have been serving as an agent
of
Mr. Dimaano.
It
is self-evident that a
person who acts at the specific instruction
of
another is an agent
of
the party who gave the
instruction.
But even
if
an agency allegation were not found within the words
of
the complaint, it is
apparent that the matter meets the requirements for consideration as an unalleged violation.
"[U]nalleged violations may be entertained
...
when adequate notice and the opportunity to
defend has been provided [to] the respondent, and where such acts are intimately related to the
subject matter
of
the complaint, are part
of
the same course
of
conduct, have been fully
litigated, and the parties have had the opportunity to examine and be cross-examined on the
issue." (See Tahoe-Truckee Unified School District (1988) PERB Decision No. 668 (Tahoe
Truckee).) "The failure to meet any
of
the above-listed requirements will prevent the Board
from considering unalleged conduct as violative
of
the Act." (Ibid. 	See also, Cajon Valley
Unified School District (1995) PERB Decision No. 1085 and Hacienda La Puente Unified
School District (1997) PERB Decision No. 1187.)
Agency is not a subtle, hidden issue in this dispute and it was addressed at the hearing.
Both parties presented evidence about agency, a question which is so interwoven with the
charge against the District as to be part
of
the same fabric.	
It
is clear that
if
the District cannot
be held responsible for Ms. Nickelberry's comments at the teachers' meeting, there is no unfair
practice. Both parties understood this, presented testimony on the question and
cross-examined the witnesses of the other side about the question of agency. Both parties were
14

instructed3 to brief the question of agency and they both did so. Plainly, the agency question
has been litigated. All requirements set out in Tahoe-Truckee for establishing an unalleged
violation have been met and the agency question is properly before the Board.
The PERB's first comprehensive analysis of an agency question arose in Antelope
Valley Community College District (1979) PERB Decision No. 97 (Antelope Valley). In
Antelope Valley, as was noted in a subsequent Board decision,4 the two members participating
agreed only on the result and not on the rationale. One Board member (Gluck) wanted to adopt
the agency rules consistently applied in private sector labor relations cases. This would have
included wholesale adoption of the private sector rule that an employer is responsible for the
acts of employees acting with the apparent authority of the employer. 	Noting textual
differences between the EERA and federal law, the other member (Gonzales) was of the view
that assertions of apparent authority should be decided on a case by case basis depending upon
whether under the circumstances the perception was reasonable.
The Board next considered an agency question in Compton Community College
District (1987) PERB Decision No. 649. There the Board affirmed the dismissal of an unfair
practice charge because the factual allegations were insufficient to set out a prima facie case of
agency. The two-member majority concluded that in cases where the principal actor is not
alleged to have been a supervisory or managerial employee:
... some factual demonstration of a relationship beyond
employment alone is necessary to impute or infer an agency
relationship. 	[Citation.] For an agency relationship to exist [the
union] must allege facts which show that [the principal actor] was
acting with some direction, instigation, approval or ratification of
the action by the [d]istrict. 	[Citation.]
3See Reporter's Transcript, Volume 1, at p. 71.
4Inglewood Unified School District (1990) PERB Decision No. 792 (Inglewood).
15

This rule was augmented in Inglewood, the decision which sets out PERB's current
approach to agency questions. In Inglewood, the Board held that a school principal was not
the agent of a public school employer when he filed a lawsuit against certain teachers because
of their activities on behalf of a union. Even though as a management employee the principal
was an actual agent of the employer, the Board concluded that he had no express authorization
to file the lawsuit and that in filing the lawsuit he had acted outside the scope of his authority.
The Board then turned to the question of whether in filing the lawsuit the school
principal acted with ostensible authority. The Board held that:
... To prove ostensible or apparent authority, the Association
was bound to establish representation by the principal (the
District) of the agency, justifiable reliance by the party seeking to
impose liability on the principal (the teachers); and a change in
position resulting from that reliance.
The Board concluded that the charging party did not prove that the public school employer had
made any representation that the lawsuit was filed on the school district's behalf or that the
union had detrimentally relied on any such representation. Accordingly, the Board concluded
that the school principal did not act with ostensible authority when he filed the lawsuit against
the union leaders.
Finally, the Board considered the question of whether the school employer had
"condoned or ratified the filing of the lawsuit" thereby incurring liability even though the
school principal was not acting as an agent at the time he filed the lawsuit. Again, the Board
found the evidence insufficient to establish that the school employer was responsible for the
principal's action. The Board concluded that the union had failed to prove that the school
employer had knowledge that the school principal had filed the lawsuit. Absent knowledge,
the Board concluded, the school employer's silence about the filing of the lawsuit could not
be interpreted as ratification. "Since we do not find that the Association proved that the
16

District
...
had any knowledge
of
the filing
of
the lawsuit, we do not find that any duty arose
on the part
of
the District to disavow the lawsuit," the Board concluded.5
Ms. Nickelberry's position as Project Facilitator has never been designated as
management or supervisory
by
the District and all witnesses expressed the belief that she was a
member
of
the bargaining unit represented
by
the Union. There was evidence that
Ms. Nickelberry had provided Mr. Dimaano with some limited amount
of
information which
he used in some unclear manner in making teacher evaluations. However, this evidence was
sketchy and far too vague to justify a conclusion that Ms. Nickelberry actually performed the
duties
of
a supervisor.6 Because there is no basis for finding that Ms. Nickelberry was a
management or supervisory employee, I conclude that she was not an actual agent
of
the
District.
I conclude, further, that the Union has failed to establish that Ms. Nickelberry acted
with ostensible or apparent authority when she burst into the teacher meeting and warned all
new teachers to leave. The only evidence on this point was Mr. Matta's testimony that because
Ms. Nickelberry did not teach and worked in the administrative office that teachers "assumed
that she was, in a way, part
of
the administration." However, there is no evidence that
Mr. Dimaano ever made any representation that Ms. Nickelberry was part
of
the
administration, or that he had told teachers that she had the authority to act on his behalf or in
5The Board's conclusions were upheld in Inglewood Teachers Association v. Public
Emolovment Relations Board (1991) 227 Cal.App.3d 767 [278 Cal.Rptr. 228].
6"Supervisory employee" means any employee, regardless
of
job description, having
authority in the interest
of
the employer to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or the responsibility to assign work to
and direct them, or to adjust their grievances, or effectively recommend such action, if, in
connection with the foregoing functions, the exercise of that authority is not of a merely
routine or clerical nature, but requires the use of independent judgment. (Sec. 3540.l(rn).)
17

his absence. Evidence that she does not teach and that her office is located in the
administrative wing of the school is not sufficient to demonstrate that Ms. Nickelberry had the
power to act on behalf of the District in matters affecting the teacher bargaining unit.
That leaves, finally, the question of whether the District adopted or ratified the
actions of Ms. Nickelberry when she warned new teachers to leave the meeting. It is a
well-established principle of labor law that where a party ratifies the conduct ,of another, that
party by adopting the conduct accepts responsibility for any unfair practice implicated by the
conduct. In a federal case involving a challenge to the conduct of a union, a federal court
summarized the rule as follows:
NLRB decisions clearly teach that where a union affirms prior
conduct performed on its behalf, the union may be responsible for
the unfair labor practices of another even where the conduct did
not bind the union at the time it occurred. [Dowd v. International
Longshoremen's Association, AFL-CIO (11 th Cir. 1992) 975 F.2d
779 (141 LRRM 2489, 2494).]
For the purpose of determining whether there was ratification, the District will be
charged with the actions of Ms. Nickelberry if Mr. Dimaano adopted them. As principal of
Walton Middle School, Mr. Dimaano was an actual agent of the District. Supervising teachers,
including questioning them or warning them, would be within the scope of his authority to
manage the school. If he adopted or ratified Ms. Nickelberry's warning to teachers as his own,
his endorsement of her conduct would constitute an assumption ofresponsibility by the
District. That such conduct might be an unfair practice would not remove it from the scope of
Mr. Dimaano's authority.
In order to establish ratification, the charging party first must show that the party it
seeks to charge with the wrongful act had knowledge of the conduct it is accused of adopting.
A party's silence cannot be interpreted as adoption where that party has no knowledge of the
18

act in question. (Inglewood.) Here, it is undisputed that Mr. Dimaano had knowledge of
what Ms. Nickelberry said when she entered the room full of teachers. He testified that
Ms. Nickelberry told him that she had stated to the group "that if you're temporary contract
teachers, you better not be in this meeting."
Possessing this knowledge, Mr. Dimaano did not repudiate the comment. He said
nothing to teachers that would indicate in any way that he disagreed with Ms. Nickelberry's
assertion that new teachers should not participate in the meeting in Ms. Gatto's classroom.
Indeed, Mr. Dimaano's next actions suggested exactly the opposite, i.e., that he agreed with
Ms. Nickelberry. Mr. Dimaano "right at that time" called the classroom where the meeting
was underway. In the second of two conversations, he demanded that Ms. Gatto come
immediately to the office. All teachers remaining in the room knew it was Mr. Dimaano on the
phone. When Ms. Gatto arrived at his office, Mr. Dimaano questioned her about the meeting.
Dissatisfied with her answers, he removed her from the leadership team. Ms. Gatto returned to
the classroom and reported these events to the teachers present.
By his failure to repudiate Ms. Nickelberry's warning to new teachers and by his
subsequent actions toward Ms. Gatto, Mr. Dimaano demonstrated approval of the conduct of
Ms. Nickelberry. Indeed, Mr. Dimaano's own conduct toward Ms. Gatto expressed more
forcefully than with words a clear belief that there was something improper about the meeting
of teachers. 	In the context of these events, teachers attending the meeting could reasonably
believe that Ms. Nickelberry's comments had the full support of Mr. Dimaano. I conclude that
both by his silence and by his own acts, Mr. Dimaano ratified Ms. Nickelberry's warning to
new teachers. Her conduct is therefore chargeable to the District and if it constitutes an unfair
practice, the District is liable for it.
19

Alleged Interference
There are three incidents of alleged interference at issue: Ms. Nickelberry's warning to
the new teachers, Mr. Dimaano's questioning of Ms. Gatto, and Mr. Dimaano's removal of
Ms. Gatto from her position on the leadership team at Walton Middle School.
Public school employees have the protected right
... to form, join, and participate in the activities of
employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations .... CJ
It is an unfair practice under section 3543.S(a) for a public school employer "to interfere with,
restrain, or coerce employees because of their exercise of' protected rights.
In an unfair practice case involving an allegation of interference, a violation will be
found where the employer's acts interfere or tend to interfere with the exercise of protected
rights and the employer is unable to justify its actions by proving operational necessity.
(Carlsbad Unified School District (1979) PERB Decision No. 89 (Carlsbad).)8 In an
7Section 3543.
8The Carlsbad test for interference provides, in relevant part, as follows:
2. Where the charging party establishes that the
employer's conduct tends to or does result in some harm to
employee rights granted under the EERA, a prima facie case
shall be deemed to exist;
3. Where the harm to the employees' rights is slight, and
the employer offers justification based on operational necessity,
the competing interest of the employer and the rights of the
employees will be balanced and the charge resolved accordingly;
4. Where the harm is inherently destructive of employee
rights, the employer's conduct will be excused only on proof that
it was occasioned by circumstances beyond the employer's
control and that no alternative course of action was available;
20

interference case, it is not necessary for the charging party to show that the respondent acted
with an unlawful motivation. (Regents of the University of California (1983) PERB Decision
No. 305-H.)
The Union argues that it "is axiomatic that attending an Association meeting is
protected activity under EERA." The Union observes that attending a Union meeting is
participation in the activities of an employee organization and that under Carlsbad these rights
"are vested without patent condition." Anticipating the District's argument, the Union argues
that Ms. Nickelberry's action cannot be excused by the failure of the Union to secure advance
permission to use the classroom for a meeting. The Union asserts that it has never been the
practice that permission was needed for school site meetings after school hours. Moreover, the
Union contends, by addressing her comments solely to the new teachers Ms. Nickelberry
revealed a purpose of discouraging new teachers from participating in Union activities, not a
concern about the Union's failure to make proper arrangements.
Because the District rejects the idea that it is in any way responsible for the conduct of
Ms. Nickelberry, it does not specifically address the question of whether comments to the new
teachers could constitute interference with protected conduct. If there was an interference, the
District observes, it was Ms. Nickelberry who violated the charging party's rights, not the
District.
It is self-evident that attending a Union meeting is a protected activity. Indeed,
attending a union meeting is participating in the activities of an employee organization at its
most basic level. It is well established, moreover, that the right to participate in the activities
5. Irrespective of the foregoing, a charge will be
sustained where it is shown that the employer would not have
engaged in the complained-of conduct but for an unlawful
motivation, purpose or intent.
21

of
an employee organization extends to probationary teachers as well as to tenured teachers.
(McFarland Unified School District (1990) PERB Decision No. 786, affirmed in McFarland
Unified School District
v.
Public Employment Relations Board (1991) 228 Cal.App.3d 166
[11 Cal.Rptr.2d 405].) It is no less an unfair practice for a public school employer to interfere
with the rights
of
newly hired teachers than it is to interfere with the rights oflong-time
employees.
The District makes no argument that those who were warned to leave the Union
meeting were somehow not public school employees. 9 Union witnesses identified them as
new teachers at Walton. As such, they fit easily within the statutory definition as persons
"employed by [a] public school employer." The statutory language makes no reference to
credential status as the mark
of
being an "employee." The right to participate in the activities
of
an employee organization exists regardless
of
whether an employee has a permanent
credential or a temporary credential, is on a short-term contract or a long-term contract. I
conclude, therefore, that the teachers who were directed by Ms. Nickelberry to leave the Union
meeting were public school employees, entitled to the rights granted
by
section 3543.
All versions
of
what Ms. Nickelberry stated to the new teachers can reasonably
be
interpreted as a threat. Ms. Gatto testified that Ms. Nickelberry stated that the new teachers
"need to leave the meeting." Mr. Matta testified that Ms. Nickelberry told the new teachers
that
"if
you know what's good for you, you better leave now." Mr. Dimaano testified that
9Under section 3540.l(j):
"Public school employee" or "employee" means any person
employed by any public school employer except persons elected
by popular vote, persons appointed by the Governor of this state,
management employees, and confidential employees.
22

Ms. Nickelberry told him that she told the new teachers that they "better not be in this
meeting."
Such words are a clear warning of an adverse consequence for failure to leave the
meeting. Although the nature of the adverse consequence was not described, such statements
may reasonably be interpreted as a warning that something bad might happen to any newly
hired teacher who chose to remain in the meeting. This was made especially clear when
Ms. Nickelberry accompanied her words with a hand gesture directing the new teachers to the
door. Newly hired teachers, not tenured and perhaps working on temporary or emergency
credentials, are more vulnerable than established, tenured teachers. It would be reasonable for
a new teacher to feel threatened by Ms. Nickelberry's words, even though a tenured teacher
might shrug off such a comment. A non-tenured teacher might reasonably consider the
possible consequence of ignoring Ms. Nickelberry's warning as too great to ignore. Prudence
dictated that they leave, and they all did.
Section 3543.S(a) specifically makes it an unfair practice for a public school employer
to "threaten to impose reprisals" on employees for engaging in protected conduct. Absent a
showing of a valid purpose by the employer, a threat ofreprisal is an unfair practice. (Regents
of the University of California (1998) PERB Decision No. 1263-H at p. 44 of administrative
law judge opinion; Regents of the University of California (1983) PERB Decision No. 366-H.)
Here, newly hired employees were warned to leave a Union meeting. Warning employees that
they should not attend a union meeting is conduct that is inherently destructive of employee
rights. Under Carlsbad the District's conduct can be excused only on proof that "it was
occasioned by circumstances beyond the employer's control and no alternative course of action
was available." There is no showing here that it was beyond Mr. Dimaano's control to
23

repudiate Ms. Nickelberry's warning to the new teachers and, by his silence and his conduct
toward Ms. Gatto, thereby adopt Ms. Nickelberris conduct as his own and that of the District.
Indeed, the District has offered no evidence that would satisfy even the lesser standard
of demonstrating operational necessity. I am not convinced by the District's assertion that the
problem with the meeting was that the Union leaders had failed to secure advance permission
to use the classroom as required by the contract. Union witnesses testified without
contradiction that they had never been required to obtain permission prior to using a classroom
for an after school meeting at Walton Middle School.
More importantly, it is clear that Ms. Nickelberry's comments were not related to the
failure of the Union to secure advance permission to use the classroom. Had this been her
motivation, she would have told all teachers in attendance that they should leave the meeting
and would not have focused entirely on newly hired teachers. By focusing on newly hired
teachers, Ms. Nickelberry revealed a purpose of reducing the number of teachers who might
join in any common course of action that might be decided upon by those attending the
meeting.
Accordingly, I conclude that the District interfered with the rights of new teachers
to participate in the activities of employee organizations by the action of Mr. Dimaano in
ratifying the conduct of Ms. Nickelberry. Such an interference is a violation of section
3543.S(a). By discouraging employees from participating in the activities of the Union, the
District also interfered with the ability of the Union to represent its members. When
employees are intimidated not to participate in Union activities, the collective strength of the
Union is weakened, thereby interfering with its ability to represent its members. For this
reason, I find also that the ratification of Ms. Nickelberry's warning to the new teachers also
violated section 3543.S(b).
24

The next issue presented by the facts here is whether Mr. Dimaano's questioning
of
Ms. Gatto constituted an interference with the protected right to participate in protected
activities in violation
of
section 3543.5(a). The Union characterizes Mr. Dimanno's
questioning
of
Ms. Gatto as "calculatingly threatening and coercive." The Union notes that the
principal called her out
of
a Union meeting and demanded to know who called the meeting.
He then threatened her about the consequences
of
her failure to answer his questions. 	"This
was not a reasonable conversation," the Union observes and therefore violates the EERA.
The District contends that Mr. Dimaano had the right under the contract between the
parties to inquire about what was "going on" in the classroom. The District observes that
under the contract the Union is obligated to obtain advance permission from the site
administrator to conduct a meeting on school premises. Therefore, the District contends,
Mr. Dimaano was acting within the District's rights when he questioned Ms. Gatto.
Interrogation
of
an employee by a manager or supervisor will be an interference with
protected rights if, under the circumstances, the interrogation
of
the employee was coercive.
(Clovis Unified School District (1984) PERB Decision No. 389 (Clovis) adopting Blue Flash
Express, Inc. (1954) 109 NLRB 591 [34 LRRM 1384].) 	"The specific words used are not
determinative where the inquiry conveys employer disapproval toward the union and creates an
expectation
of
employee response." (Clovis.) Where the interrogation causes at least slight
harm to employee rights, the employer will be excused
if
it can show operational necessity and
a balancing
of
the competing interests weighs in favor
of
the employer. (Carlsbad.)
I have credited Ms. Gatto's version of the September 28, 2000, conversation between
herself and Mr. Dimaano as the accurate description of what took place in that meeting. 	The
record thus establishes that Mr. Dimaano twice asked Ms. Gatto who called the meeting of
teachers. When Ms. Gatto refused to answer the question, Mr. Dimaano told her that "if you
25

cannot support me, Ms. Gatto, then I cannot have you on the leadership team." Pressing an
employee to reveal who called a Union meeting and then removing her from an assignment
considered prestigious at the work place is clearly an action that "conveys employer
disapproval toward the union and creates an expectation
of
employee response." (Clovis.)
Such an interrogation causes at least slight harm to employee rights. It was an investigatory
question and it implied that calling a Union meeting was somehow an improper activity.
The District justifies Mr. Dimaano's questioning on the ground that as principal he had
a right to know what was going on at the school. The Union had failed to properly secure
advance approval for the use
of
a classroom and, the District reasons, Mr. Dimaano would
have been derelict in his duty
if
he had not inquired into what was going on. The District
reasons that the principal's right to know what was going on in his school clearly outweighs the
brief intrusion on Ms. Gatto's participation in the Union meeting.
I find the District's argument unpersuasive.
	If
Mr. Dimaano had been interested in
finding out why the Union did not make advance arrangements for the use
of
the classroom
one would expect him to have called the Union representative to his office. The Union's site
representative, Mr. Matta, was in the classroom. There is no evidence that Mr. Dimaano asked
to speak to him. Nor is there evidence that Mr. Dimaano subsequently asked Mr. Hollister,
executive director
of
the Union, for an explanation
of
the Union's apparent failure to adhere to
the requirements
of
the contract. Instead, Mr. Dimaano called to his office Ms. Gatto, a
teacher with no official position in the Union. When Ms. Gatto arrived at his office,
Mr. Dimaano did not ask her whether she knew
if
the Union had made arrangements for use
of
the classroom prior to calling the meeting. He asked her who called the meeting, a question
pregnant with the suggestion that whoever called the meeting had engaged in some wrong-
doing.
26

The nature
of
Mr. Dimaano's questions and his target for questioning convince me that
his purpose was not to find out why the Union neglected to reserve a room prior to caliing a
Union meeting. For this reason, I find the District's assertion
of
operational justification to be
unpersuasive. Accordingly, I conclude that the District interfered with the rights
of
Ms. Gatto
to participate in the activities
of
an employee organization by the action
of
Mr. Dimaano in
calling her to the office on September 28, 2001, and questioning her about the Union meeting.
Such an interference is a violation
of
section 3543.S(a). Because Mr. Dimaano's questioning
of
Ms. Gatto would have the natural effect
of
discouraging her from participating in the activities
of
the Union, this action also interfered with the ability
of
the Union to represent its members.
When employees are intimidated not to participate in Union activities, the collective strength
of
the Union is weakened, thereby interfering with its ability to represent its members. For this
reason, I find also that Mr. Dimaano's conduct violated section 3543.S(b).
Alleged Discrimination
The final issue here is whether Mr. Dimaano committed an unfair practice when he
removed Ms. Gatto from the Walton Intermediate School leadership team. The charge and the
complaint allege that Mr. Dimaano "threatened" to remove Ms. Gatto from the leadership team
if
she failed to answer his question about who called the teacher meeting. As a threat,
Mr. Dimaano's action was alleged to have been an interference with Ms. Gatto's protected
rights. However, I have credited Ms. Gatto's testimony that at the meeting Mr. Dimaano
removed her from the leadership team because she would not answer his question. Removal
of
Ms. Gatto from the leadership team was not a threat; it was a completed act. As such, the
Union observes in its brief, the Mr. Dimaano's action should be analyzed as an unlawful
retaliation for participation in protected conduct.
27

Because the unfair practice charge and the complaint do not set out an allegation of
discrimination, this issue can be considered oniy if it meets the PERB requirements described
in Tahoe-Truckee for consideration of an unalleged violation. Both the Union and the District
fully litigated the question of how Ms. Gatto came to be separated from the leadership team.
Both the Union and the District presented witnesses who testified about this subject and both
sides had the opportunity to cross-examine witnesses about their testimony on this issue. In
their briefs, the parties have addressed the question of whether Ms. Gatto was dismissed from
the leadership team or voluntarily quit. I conclude, therefore, that the requirements for
considering an unalleged violation have been met.
Under section 3543.S(a), it is unlawful for a public school employer to "[i]mpose ...
reprisals on employees, to discriminate ... or otherwise to interfere with, restrain, or coerce
employees because of their exercise of [protected] rights." In order to prove an allegation of
discrimination, the charging party must first demonstrate that the aggrieved employee engaged
in protected conduct. The charging party must next show that the employer knew of the
employee's protected act10 and that the employer took an adverse action against the employee.
The adverse action cannot be speculative but must be an actual harm. 11
Upon a showing of protected conduct and adverse action, the party alleging
discrimination must then make a prima facie showing of unlawful motivation. Under Novato
Unified School District (1982) PERB Decision No. 210, unlawful motivation within the
10Moreland Elementary School District (1982) PERB Decision No. 227.
11 Palo Verde Unified School District (1988) PERB Decision No. 689.
28

meaning of section 3543.5(a) occurs where the employer's action against the employee was
motivated by the employee's participation in protected conduct. 12
This test, applied by the Board in all discrimination cases since Novato, is consistent
with other California and federal precedent. Under both state and federal cases, the trier of fact
is required 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. 13 After
the charging party has made a prima facie showing sufficient to support an inference of
unlawful motive, the burden shifts to the respondent to produce evidence that the action against
the employee "would have occurred in any event." (Martori Brothers Distributors v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721 at 730 [ 175 Cal.Rptr. 626].) If an
employer respondent then shows misconduct on the part of the employee, the employer's action
against the employee,
... should not be deemed an unfair labor practice unless the
board determines that the employee would have been retained
"but for" his union membership or his performance of other
protected activities. [Ibid.]
As noted above, Ms. Gatto participated in protected conduct by attending the Union
meeting on September 28, 2000. It is clear that Mr. Dimaano knew of her protected activity.
12Indications of unlawful motivation have been found in many aspects of an
employer's conduct. Words indicating 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 (Ibid.); 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); timing of the action (North Sacramento School District (1982) PERB Decision
No. 264); and pattern of antagonism toward the union (Cupertino Union Elementary School
District (1986) PERB Decision No. 572).
13See Wright Line, Inc. (1980) 251 NLRB 1083 [105 LRRM 1169] enforced, in
relevant part, (1st Cir. 1981) 662 F.2d 899 [108 LRRM 2513].
29

He called to speak to her in the classroom where the meeting was taking place. He then asked
her questions about the meeting.
Following her refusal to answer Mr. Dimaano's question, Ms. Gatto was removed from
the leadership team. Whether removal from the leadership team constitutes an adverse action
as required in Board decisions must be measured against an objective standard. "The test
which must be satisfied is not whether the employee found the employer's action to be adverse,
but whether a reasonable person under the same circumstances would consider the action to
have an adverse impact on the employee's employment." (Newark Unified School District
(1991) PERB Decision No. 864 (Newark).)
Effect on pay and benefits is not the only determiner. In Woodland Joint Unified
School District (1990) PERB Decision No. 808, the Board rejected an employer's argument
that an employee had suffered no harm when it required her to obtain a doctor's excuse for four
consecutive days of absence. The Board observed:
The District's argument is without merit. Discriminatory
enforcement of a work rule for the purpose of harassing or
intimidating an employee in retaliation for having engaged in
protected activity constitutes adverse action. [Citations.] Thus,
[the employee] suffered injury in that the medical verification
was imposed to harass and intimidate her for having filed and
appealed a grievance. [Fns. omitted.]
Ms. Gatto served on the leadership team with parents and classified employees and had
the opportunity to influence policy at the school. She had spent two hours a week on team
activities and obviously was proud of her service. She described her participation on the
leadership team as "obviously something that's quite worth while." Service on the leadership
team was considered a prestigious assignment at Walton Middle School. Under the
circumstances here, where a prestigious assignment was removed from an employee because
the principal disapproved of her refusal to answer a question, a reasonable employee might
30

well "consider the action to have an adverse impact on the employee's employment."
(Newark.) Such an obvious expression of disfavor by the principal is inherentiy job
threatening.
Finally, I find ample evidence of unlawful motivation. Mr. Dimaano adopted
Ms. Nickelberry's warning that new teachers should not participate in a Union meeting.
Warning employees not to participate in protected conduct is plainly anti-union activity.
Mr. Dimaano then questioned Ms. Gatto about the meeting of teachers, implying by his
conduct something improper about teachers attending a Union meeting. These acts, by their
very nature, bespeak of animus toward employee participation in the activities of an employee
organization.
That leaves only the question of whether Ms. Gatto would have been removed from her
position on the leadership team regardless of her participation in protected conduct. Plainly
she would not have been. Mr. Dimaano made it explicitly clear that she was being removed
from the leadership team because she would not answer his question about the meeting. She
would not disclose the identity of co-workers who, like herself, were engaged in protected
conduct. It is clear, therefore, that but for her participation in protected conduct, Ms. Gatto
would not have been required to relinquish this assignment.
I conclude, therefore, that the District retaliated against Ms. Gatto by removing her
from participation in the leadership team. This action was discriminatory and in violation of
section 3543.S(a). Because Mr. Dimaano's retaliatory removal of Ms. Gatto from the
leadership team would have the natural effect of discouraging her from participating in the
activities of the Union, this action also interfered with the ability of the Union to represent its
members. When employees are intimidated not to participate in Union activities, the collective
31

strength of the Union is weakened, thereby interfering with its ability to represent its members.
For this reason, I find also that Mr. Dimaano's conduct violated section 3543.S(b).
REMEDY
The PERB in section 3541.S(c) is given:
... the power 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 reimbursement
of employees with or without back pay, as will effectuate the
policies of this chapter.
Here, the District interfered with employee rights to form, join and participate in the
activities of an employee organization for the purpose of representation. The District also has
retaliated against an employee because of her participation in protected activity. The
appropriate remedy for the interference case is an order that the District cease and desist from
such interference. The appropriate remedy for the retaliation is to undo the effect of the
retaliation by returning the affected employee to the status quo. Therefore, if Ms. Gatto wishes
to be reinstated as a member of the leadership team, the District must afford her that
opportunity.
It is further appropriate that the District be directed to post a notice incorporating the
terms of the order. Posting of such a notice, signed by an authorized agent of the District, will
provide employees with notice that the District has acted in an unlawful manner, is being
required to cease and desist from this activity, and will comply with the order. It effectuates
the purposes of the BERA that employees be informed of the resolution of this controversy and
the District's readiness to comply with the ordered remedy. (Placerville Union School District
(1978) PERB Decision No. 69.)
32

PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of iaw and the entire record in the
case, it is found that the Compton Unified School District (District) violated Government Code
section 3543.S(a) and (b), provisions of the Educational Employment Relations Act (Act). The
District violated the Act by interfering with the right of employees to form, join and participate
in the activities of employee organizations and by retaliating against an employee who
participated in protected activities. The District interfered with employee rights when on
September 28, 2000, Alphonso Dimaano, principal of Walton Middle School, ratified a threat
made by Stacey Nickelberry against new teachers attending a meeting of the Compton
Education Association (Union). The District interfered with the rights of teacher Gina Gatto
when on that date Mr. Dimaano called her to his office and questioned her about the Union
meeting. The District then retaliated against Ms. Gatto when on the same date, Mr. Dimaano
removed her from the Walton Middle School leadership team because she would not answer
his question.
Because the threat, interrogation and retaliation would have the natural effect of
discouraging employee participation in the Union, the threats had the further effect of
interfering with the right of the Union to represent its members, a violation of section
3543.S(b ).
Pursuant to section 3541.S(c) of the Government Code, it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Threatening new teachers and warning them to leave meetings of the
Union.
33

2. 	Asking teachers to reveal the identity of the person or persons who called
a Union meeting.
3. 	Retaliating against any teacher who refuses to answer any question about
the identity of the person or persons who called a Union meeting.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within ten (10) workdays of the service of a final decision in this matter,
offer teacher Gina Gatto an opportunity to resume her service on the Walton Middle School
leadership team and reinstate her to the leadership team if she desires it.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to certificated employees customarily are posted,
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 ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
3. 	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 accord with the director's instructions.
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
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
34

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of California Code of Regulations, title 8,
section 32135( d), provided the filing party also places the original, together with the required
· number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b ),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
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 Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Ronald E. Blubaugh
Administrative Law Judge
35
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