William S. Hart Union High School District (PERB 2595E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOY MENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOY EES
ASSOCIATION & ITS CHAPTER 349,
Charging Party, Case No. LA-CE-6024-E
V. PERB Decision No. 2595
WILLIAM S. HART UNION HIGH SCHOOL November 9, 2018
DISTRICT,
Respondent.

Appearances: Andrew J. Kahn, Chief Counsel, and Christina C. Bleuler, Lead Staff Attomey,
for Califomia School Employees Association & its Chapter 349; Littler Mendelson, by Barrett
K. Green and Laila S. Tafreshi, Attomeys, for William S. Hart Union High School District.
Before Winslow, Shiners, and Krantz, Members.
DECISION

WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on William S. Hart Union High School Distnict’s (District) exceptions to a
proposed decision (attached) by an administrative law judge (ALJ). The District’s exceptions
concem the ALJ’s conclusion that the District violated the Educational Employment Relations
Act (EERA)! by asking Amber Medina (Medina) whether, in her role as a steward for
Califomia School Employees Association & its Chapter 349 (CSEA), any represented

employees had complained to her about Armando Y oguez. (Y oguez), another represented

' EERA is codified at Goverment Code section 3540 et seg. Unless otherwise
indicated, all statutory references herein are to the Government Code.

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employee.2 The District argues that its questioning of Medina was not unlawfully coercive,
that any harm to employee rights was outweighed by the District’s legitimate business
justification, that EERA and PERB case law failed to provide the District adequate notice that
its questioning could violate EERA, and that the ALJ’s proposed order was overbroad.
Having reviewed the proposed decision and the entire record in light of the parties’
submissions, we affirm the proposed decision, except as modified below.
FACTS
Yoguez was employed at the District’s West Ranch High School (West Ranch) as a
night shift custodian. Medina was employed at a different District site, but her work as a
steward frequently took her to West Ranch, which she described as her “problem child,”
particularly during the 2013-2014 school year. Medina was especially concerned about
Yoguez, who had entered into a “last-chance” agreement in May 2013 to avoid termination.
Early in the 2013-2014 school year, District officials caught wind of rumors that
Yoguez and Medina were romantically involved and had been meeting in a car in the West
Ranch parking lot during Yoguez’s shift. Later, when these rumors gave way to formal
reports, the District hired a private investigator, who observed Yoguez and Medina meeting in
a car in the West Ranch parking lot on September 22, 23, and 25, 2014.
2 CSEA has not excepted to the ALJ’s dismissal of the complaint’s allegation that the
District retaliated against Medina for engaging in protected activity, or to the ALJ’s conclusion
that most of the District’s questions to Medina were justified by the District’s legitimate
business interests. In the absence of exceptions regarding these issues, they are not before the
Board and the ALJ’s conclusions regarding these issues are binding only on the parties.
(PERB Regs. 32215, 32300, subd. (c); City of Torrance (2009) PERB Decision No. 2004,
p. 12.) (PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.) CSEA withdrew the complaint’s other allegation, that the District retaliated
against Yoguez for engaging in protected activity.
2

On October 6, 2014, the District conducted an investigatory interview with Yoguez,
who was represented by Medina and a CSEA staff representative, Valerie Hollins (Hollins).
During the interview, Yoguez denied receiving any visitors during his shift other than his wife.
On October 10, 2014, the District issued a statement of disciplinary charges against
Yoguez. Yoguez was accused, among other things, of meeting with Medina during his shift to
engage in “non-work activity (most likely sexual activity),” and of dishonesty during his
interview when he denied having received any visitors other than his wife.
On October 21, 2014, the District held a pre-disciplinary meeting concerning the
charges against Yoguez. Yoguez was again represented by Medina and Hollins. Yoguez
admitted to having met with Medina during his shifts to discuss CSEA business, but explained
that he did not consider her a visitor because she was his union steward.
On October 22, 2014, the District’s assistant superintendent of human resources,
Michael Vierra (Vierra), conducted an investigatory interview of Medina, who was represented
by Hollins. Greg Lee, the District’s human resources director, also attended. During the
interview, Medina acknowledged meeting with Yoguez at West Ranch, but said that they only
met to discuss CSEA business. Vierra asked whether Yoguez and Medina had engaged in
sexual activity at West Ranch. Medina said they had not.
Vierra then asked Medina questions about her activities as a CSEA steward. Hollins
disputed the relevance of those questions. Vierra explained to Hollins that he found it unlikely
that Medina and Yoguez were conducting union business in the parking lot in her car, and
needed to understand Medina’s normal practices. He proceeded to question Medina regarding
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her training and her record-keeping practices. Vierra also asked Medina whether any unit
members had complained to her about Yoguez.3 Medina responded to all of these questions.
Vierra then questioned Medina specifically about her meetings with Yoguez on
September 22, 23, and 25, 2014. Medina admitted to meeting with Yoguez at West Ranch on
each of those nights, but said the two were discussing CSEA business.
Following the interview, the District issued a statement of disciplinary charges against
Medina. In particular, the District accused her of engaging in “non-work activity (most likely
sexual activity)” at West Ranch on September 22, 23, and 25, dishonestly claiming that she
was meeting Yoguez for CSEA business, and “abandon[ing] [her] responsibilities towards
other CSEA unit members at the site in order to cover up [her] affair with Mr. Yoguez.”
DISCUSSION
Interference
The District excepts to the ALJ’s conclusion that it interfered with protected rights by
questioning Medina about whether other bargaining unit members had complained to her about
Yoguez. It argues that Vierra’s questioning was not coercive and that, even if it was, the
District’s legitimate need to investigate Yoguez and Medina’s conduct outweighed any harm to
employee rights. We reject these arguments.
EERA makes it unlawful for an employer to “[i]mpose 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
3 As we discuss post, the exceptions before us relate only to the legality of this single
question. We mention Vierra’s other questions for context, but we express no opinion as to
their legality.
4

this chapter.” (§ 3543.5, subd. (a).) It is also unlawful for an employer to “[d]eny to employee
organizations rights guaranteed to them by this chapter.” (§ 3543.5, subd. (b).)
The Board’s framework for analyzing allegations of unlawful interference is well
settled. “A prima facie case of interference is established by allegations that an employer’s
conduct tends to or does result in some harm to employee rights under our statutes.” (Jurupa
Unified School District (2012) PERB Decision No. 2283, p. 28, citing Carlsbad Unified School
District (1979) PERB Decision No. 89 (Carlsbad).) “If the harm to protected rights is slight
and the employer offers justification based on operational necessity, the competing interests
are balanced. [Citations.] If the harm to employee rights outweighs the asserted business
justification, a violation will be found.” (Cabrillo Community College District (2015) PERB
Decision No. 2453, pp. 13-14, citing Carlsbad.) “Where the employer’s conduct is inherently
destructive of protected rights, it will be excused only on proof that it was caused by
circumstances beyond the employer’s control and that no alternative course of action was
available.” (Id. at p. 14.)
The ALJ concluded that the District’s questioning concerning whether other employees
had complained to Medina about Yoguez caused at least slight harm to protected rights. We
agree. EERA gives employees the “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.” (EERA, § 3543, subd. (a).) This right includes serving as a
union steward. (Klamath-Trinity Joint Unified School District (2005) PERB Decision
No. 1778, p. 2.) EERA also guarantees the right of employee organizations to represent
employees in their employment relations with the public school employer. (EERA, § 3543.1,
5

subd. (a); Hartnell Community College District (2015) PERB Decision No. 2452, p. 56
(Hartnell).)
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 president disclose identity of bargaining
unit members informing union of safety concerns constitutes interference].) As the National
Labor Relations Board (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.)
In Cook Paint, the employer questioned a union shop steward, under threat of discipline,
about his conversations with an injured employee concerning the incident that led to the injury.
(Cook Paint, supra, 258 NLRB 1230, 1231.) The NLRB ruled that because the union steward
was not an eyewitness to the incident and was questioned solely due to his status as a steward,
the employer’s coercive conduct constituted unlawful interference. (Id. at p. 1232.)
In this case, the evidence establishes that Vierra first asked Medina whether any CSEA
unit members expressed concerns to her about Yoguez, and then asked follow-up questions
(“[w]ho, what, where, when, why,” according to Vierra’s notes) about a site meeting where
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employees allegedly expressed their concerns. Thus, the District exceeded the scope of any
permissible inquiry when it sought the identity of unit members who attended the meeting and
the substance of conversations between bargaining unit members and their union steward.
The District argues, however, that Vierra’s questioning of Medina was not coercive, and
therefore did not harm protected rights. The District claims that Medina “voluntarily answered”
and that Vierra “never said or even suggested that failure to provide answers would result in
discipline.”
We disagree with the District’s claim that the questioning was not coercive. When an
employer’s questions veer into matters protected by EERA, it is the employer’s obligation to
assure the employee that his or her response is voluntary. (State of California (Department of
Corrections) (1995) PERB Decision No. 1104-S, adopting proposed decision at pp. 16-17,
quoting Johnnie’s Poultry Company (1964) 146 NLRB 770; Clovis Unified School District
(1984) PERB Decision No. 389, p. 16 (Clovis) [no interference where administrator assured
employees of their “right to remain silent”].) There is no evidence that Vierra gave such
assurances to Medina. And the context of the questioning affirmatively communicated that
Medina’s responses were not, in fact, voluntary. The questioning occurred during an
investigative interview regarding Medina’s misconduct, and after the District had already
initiated its disciplinary process against Yoguez, based in part on the night-time meetings with
Medina. Moreover, Vierra proceeded with his questions about Medina’s union activities even
after Hollins objected.4 Therefore, we reject the District’s exception and agree with the ALJ that
Vierra’s questioning was coercive and harmed protected rights.
4 Although there was conflicting testimony about whether Hollins posed an objection,
the District did not except to the ALJ’s resolution of that conflict, or otherwise argue that the
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Having concluded that Vierra’s questioning caused at least slight harm to protected
rights, we turn to the District’s claim that its need to investigate Yoguez and Medina’s conduct
outweighed any harm to those rights. The ALJ found that the District had a legitimate interest in
determining whether Medina and Yoguez had been engaged in union business, to test the
veracity of their defense that their meetings were proper.5 But, he concluded, Vierra’s questions
about whether other employees had complained to Medina about Yoguez “bear no clear
relationship to Medina’s assertion that her meetings with Yoguez at West Ranch were for
CSEA business.”
In its exceptions, the District argues that “if Medina had received complaints from other
CSEA members about Yoguez and failed to investigate those complaints against Yoguez, it
tends to show she had a personal or romantic relationship with Yoguez.” This might be a
logical inference to draw if the complaints concerned potential grievances against the employer
or another matter the union had a duty to investigate. However, such an inference would be a
weak one. The possibility that Medina was covering up a personal or romantic relationship
with Yoguez is only one of several inferences that could be drawn from Medina’s failure to
investigate complaints against Yoguez. Another reasonable inference could be that CSEA had
exercised its discretion not to pursue other employees’ complaints against Yoguez. (See, e.g.,
California School Employees Association & its Chapter 379 (Dunn) (2009) PERB Decision
No. 2028, p. 9.) As a result, discovering that Medina failed to investigate complaints against
ALJ was incorrect. The District has therefore waived any exception to the ALJ’s finding that
Hollins objected. (PERB Reg. 32300, subd. (c).)
5 In the absence of an exception by CSEA, we assume without deciding that the District
had a legitimate interest in determining whether Medina and Yoguez were engaged in union
business during their meetings.
8

Yoguez would have supplied the District only weak evidence that the two had a personal or
romantic relationship.
Even if the District had a legitimate reason to ask Medina about her protected
communications with employees, we conclude that the harm to protected rights outweighs the
District’s interests. Balanced against the minimally probative nature of Vierra’s question is the
problem that it struck at the heart of matters in which the District had no legitimate interest: the
adequacy of Medina’s representation of bargaining unit members. This was an issue to be
raised, if at all, by the unit members themselves, not the District. (Orange County Water
District (2015) PERB Decision No. 2454-M, p. 25, fn. 20 [unit members, not employers, have
standing to charge an exclusive representative with breaching its duty of fair representation];
see also Hartnell, supra, PERB Decision No. 2452, p. 56 [“the employer has no role in
deciding or influencing matters of employee choice or the administration of an employee
organization’s internal affairs” (emphasis in original)].) By pursuing that line of inquiry in a
formal investigatory interview, the District converted Medina’s efforts as a steward into a
disciplinary matter. This was starkly demonstrated by the District’s later assertion that Medina
had “abandoned [her] responsibilities towards other CSEA unit members at the site in order to
cover up [her] affair with Mr. Yoguez.”
Also problematic is the possibility that the District’s inquiry into the complainants’
identities and the subjects of their complaints against Yoguez could have forced Medina to
provide additional evidence of Yoguez’s wrongdoing. An employer’s legitimate investigation
into alleged wrongdoing cannot include quizzing the shop steward about the substance of
communications between employees and their union representatives, thereby deputizing the
union as the employer’s agent for conducting disciplinary investigations.
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Under these circumstances, we cannot conclude that the District’s need to inquire into
other employees’ complaints about Yoguez outweighed the harm to protected rights.
The District’s final argument regarding the merits of the case concerns the ALJ’s
finding that the District violated Medina’s rights. The District argues that if its conduct did
violate EERA, “the rights that were allegedly violated are those of CSEA and not those of
Medina.” We disagree. By interfering with Medina’s rights to act as a steward, the District
violated Medina’s employee rights and CSEA’s rights. (State of California (Department of
Corrections & Rehabilitation) (2012) PERB Decision No. 2285-S, p. 17.) The District also
violated the rights of the employees CSEA represents by “cast[ing] a chilling effect over all of
its employees and their stewards who seek to candidly communicate with each other over
matters” concerning their employment. (Cook Paint, supra, 258 NLRB 1230, 1232; cf. Santa
Clara Valley Water District (2013) PERB Decision No. 2349-M, pp. 23, 26 [discrimination
against a union activist has a chilling effect on the rights of all employees].)6
Due Process
Relying on F.C.C. v. Fox Television Stations, Inc. (2012) 567 U.S. 239 (Fox), the
District argues that a finding of interference is improper under the “void for vagueness”
doctrine because the District lacked adequate notice that Vierra’s questions to Medina could
violate EERA. The ALJ properly rejected this argument.
Fox, supra, 567 U.S. 239, described the “void for vagueness” doctrine, grounded in the
Due Process Clause of the Fifth Amendment. It explained that a “fundamental principle in our
legal system is that laws which regulate persons or entities must give fair notice of conduct that
is forbidden or required.” (Id. at p. 253.) Further, “[a] conviction or punishment fails to
6 Although the only employee rights addressed in the proposed order are Medina’s, we
correct this oversight in our order.
10

comply with due process if the statute or regulation under which it is obtained ‘fails to provide
a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory enforcement.’” (Ibid.)
In Fox, the Federal Communications Commission abruptly implemented a sea-change
in its position on whether fleeting expletives and brief nudity are unlawful “indecency,”
without giving notice to regulated parties that what was previously considered lawful is now
considered unlawful. (567 U.S. at p. 258.) The ALJ deemed Fox inapposite to this case
because there has been no sudden change in PERB’s position on coercive questioning of
employees regarding their protected activity.
In its exceptions, the District acknowledges that there has been no change in PERB’s
view of coercive questioning, but argues that it has been denied “fair notice” of the types of
questions prohibited by EERA. It maintains that neither Clovis, supra, PERB Decision
No. 389, nor any other case has addressed “which sorts of questions are appropriate during a
district’s legitimate investigation.” This argument is untenable.
EERA’s broad prohibition against interference with protected rights is akin to similar
provisions found in numerous other state labor relations laws in California and other states, as
well as to provisions under federal law governing private sector employees and federal
employees. In each of these instances, the law vests an expert agency with authority to
interpret the broad protection of employee rights on a case-by-case basis, thereby providing
guidance through legal interpretations and fact-specific holdings in precedential decisions.
Such jurisprudence has a long history in the common law and is part and parcel of the
American legal system. No precedent suggests that a court or agency violates due process
11

when it applies the law to a new set of facts that varies in one or more ways from the factual
scenarios at issue in prior cases.
In addition, “fair notice” does not mean the kind of precise, exacting notice the District
seeks. As one Court of Appeal recently explained, the standard for showing that a law is
unconstitutionally vague “is hard to meet, and its stringency is not accidental. Language itself
is notoriously imprecise.” (Diaz v. Grill Concepts Services, Inc. (2018) 23 Cal.App.5th 859,
870.) Vagueness is not established simply because a law is difficult to apply or because its
meaning is difficult to discern, but “only if it is impossible to give the law a ‘reasonable and
practical construction.’” (Ibid.) “A statutory scheme is not required to isolate and specify, or
provide detailed plans and specifications concerning, every precise activity or conduct that is
intended to be required or prohibited. . . . And an administrative agency properly can choose
to resolve some aspects of the implementation of a statutory scheme through ad hoc
adjudication rather than by general rule.” (Alfaro v. Terhune (2002) 98 Cal.App.4th 492,
503-504, citation omitted.) Moreover, civil statutes that regulate economic conduct, such as
EERA, are subject to less scrutiny under the vagueness doctrine. (See Amaral v. Cintas Corp.
No. 2 (2008) 163 Cal.App.4th 1157, 1181.)
EERA’s prohibition on interfering with protected rights has been given a reasonable
and practical construction over more than four decades of agency adjudication, beginning with
Carlsbad, supra, PERB Decision No. 89—which is itself grounded in decades of
administrative and judicial precedent interpreting similar provisions of the National Labor
Relations Act (NLRA). Despite this lengthy history, as well as the existence of numerous
other collective bargaining laws prohibiting interference with protected rights, the District cites
no case (and our own research discloses none) even suggesting that these provisions or the
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administrative interpretations of them are unconstitutionally vague.7 We therefore reject the
District’s argument that EERA section 3543.5, subdivision (a), cannot be applied to find a
violation here.
Remedy
Finally, we turn to the District’s exception that the ALJ’s cease-and-desist order is
vague and “unfairly broad, and possibly unconstitutionally so.” The relevant portion of the
proposed order is:
The District violated EERA by interrogating Amber Medina, a
steward for California School Employees Association, and its
Chapter 349 (CSEA)[,] about whether represented employees had
complained to her in her capacity as a steward about another
represented employee. All other claims were dismissed.
Pursuant to EERA section 3541.5, subdivision (c), it hereby is
ORDERED that the District, its governing board and its
representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with Medina’s protected rights.
2. 	Interfering with CSEA’s right to represent its
bargaining unit.
This order is not vague or overbroad. It is prefaced with a specific finding that the
District violated EERA by interrogating Medina “about whether represented employees had
complained to her in her capacity as a steward about another represented employee.” The
cease-and-desist portion of the order is read in conjunction with that finding as well as the
remainder of the decision. (See Jurupa Unified School District (2015) PERB Decision
7 In fact, one federal court rejected out of hand the argument that section 8(b)(1) of the
NLRA, which prohibits a union from “restrain[ing] or coerc[ing]” employees in the exercise of
their protected rights (29 U.S.C. § 158(b)(1)), was unconstitutionally vague. (NLRB v. Union
Nacional de Trabajadores (1st Cir. 1976) 540 F.2d 1, 11, fn. 9.)
13

No. 2458, p. 7.) The District’s claim that the order subjects it to contempt for any conduct
“regardless if connected in any way to the issue raised here” is inconsistent with Board
precedent holding that it will seek to enforce an order only when a respondent’s actions are
sufficiently similar to the ones litigated. (San Francisco Community College District (1994)
PERB Order No. Ad-258, p. 5.) Thus, the broad language of the ALJ’s cease-and-desist order
is sufficiently tempered by the specific description of the violation committed by the District,
and we reject the argument that it is vague and overbroad. That being said, in this case a more
narrowly tailored cease-and-desist order will effectuate the purposes of the statute equally well.
We therefore modify the order to more precisely state the scope of the enjoined conduct.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the William S. Hart Union High School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5,
subdivisions (a) and (b). The District violated EERA by interrogating Amber Medina, a
steward for California School Employees Association and its Chapter 349 (CSEA), about
whether represented employees had complained to her in her capacity as a steward about
another represented employee. All other claims were dismissed.
Pursuant to EERA section 3541.5, subdivision (c), it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Interfering with employees’ and CSEA’s protected rights by interrogating CSEA
stewards regarding whether they have received, in their capacity as union officials, complaints
from represented employees about other represented employees.
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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to employees in CSEA’s bargaining
unit 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 it will comply with the
terms of this Order. Such posting shall be maintained for a period of thirty (30) consecutive
workdays. The Notice shall also be posted by electronic message, intranet, internet site, and
other electronic means customarily used by the District to communicate with employees in
CSEA’s bargaining unit. Reasonable steps shall be taken to ensure that the Notice is not
reduced in size, altered, defaced or covered with any other material.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on CSEA.
Members Shiners and Krantz joined in this Decision.
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APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-6024-E, California School
Employees Association & its Chapter 349 v. William S. Hart Union High School District, in
which all parties had the right to participate, it has been found that the William S. Hart Union
High School District (District) violated the Educational Employment Relations Act (EERA),
Government Code section 3540 et seq., by interrogating Amber Medina, a steward for
California School Employees Association & its Chapter 349 (CSEA), about whether
represented employees had complained to her in her capacity as a steward about another
represented employee.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Interfering with employees’ and CSEA’s protected rights by interrogating CSEA
stewards regarding whether they have received, in their capacity as union officials, complaints
from represented employees about other represented employees.
Dated: _____________________ 	WILLIAM S. HART UNION HIGH 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 IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 349,
Charging Party,
v.
WILLIAM S. HART UNION HIGH SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-6024-E
PROPOSED DECISION
(October 25, 2016)
Appearances: Christina C. Bleuler, Lead Staff Attorney, for California School Employees
Association & its Chapter 349; Littler Mendelson, P.C., by Barrett K. Green and Laila S.
Tafreshi, Attorneys, for William S. Hart Union High School District.
Before Eric J. Cu, Administrative Law Judge.
In this case, an exclusive representative accuses a public school employer of retaliating
against a union steward because of her representational activities and unlawfully interrogating
the steward about her union activity. The employer denies any violation.
PROCEDURAL HISTORY
On April 21, 2015, California School Employees Association & its Chapter 349
(CSEA) filed the instant unfair practice charge with the Public Employment Relations Board
(PERB or Board), accusing the William S. Hart Union High School District (District) of
retaliation and interference in violation of the Educational Employment Relations Act
(EERA).1
1 EERA is codified at Government Code section 3540 et seq.

On September 9, 2015, the PERB Office of the General Counsel issued a complaint
alleging that the District issued steward Amber Medina and unit member Armando Yoguez
separate notices of possible dismissal because they engaged in EERA-protected activities. The
complaint also alleges that the District interfered with Medina’s protected rights by
interrogating her about her union activities. The District filed its answer on September 29,
2015, denying the substantive allegations and asserting multiple affirmative defenses.
An informal conference was held on November 3, 2015, but the matter was not
resolved. The parties participated in a formal hearing on March 21-23, 2016. During the
hearing, CSEA withdrew the retaliation allegations pertaining to Yoguez. In its case in chief,
the District sought to introduce a video file as an exhibit (Respondent’s Exhibit G). CSEA
objected on relevance grounds, which I, as the assigned administrative law judge, overruled.
However, the admission of the exhibit was delayed due to technical issues with the video file
format. Those issues were resolved by April 1, 2016. On April 7, 2016, CSEA acknowledged
that the formatting issue had been resolved, but maintained its original relevance objection.
Noting that CSEA’s objection had already been preserved in the record, I admitted
Respondent’s Exhibit G on April 7, 2016.
Each party submitted a closing brief on July 20, 2016. At that point, the record was
closed and the matter was considered submitted for decision.
FINDINGS OF FACT
The Parties
The District is a “public school employer” within the meaning of EERA section 3540.1,
subdivision (k). CSEA is an “exclusive representative” within the meaning of EERA
section 3540.1, subdivision (e), and represents the District’s classified bargaining unit. Medina
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is a “public school employee” within the meaning of EERA section 3540.1, subdivision (j).
Prior to his termination, Yoguez was also a “public school employee” within the meaning of
EERA section 3540.1, subdivision (j). At the times relevant to this case, both Medina and
Yoguez were part of the classified unit.
The District’s Discipline Process for Classified Employees
The District’s Governing Board has authority to discipline employees, based on
recommendations from District administration. Article 24.2 of the Collective Bargaining
Agreement (CBA) between CSEA and the District specifies that discipline may only be
imposed for just cause. CBA Article 24.0 enumerates specific causes for discipline. Among
the causes relevant to this case are “Dishonesty” (Art. 24.0(B)), and “Incompetency,
inefficiency, insubordination, inattention to or dereliction of duty, discourteous treatment of
the public or fellow employees, or any other willful violation” of the Education Code, District
rules, or Personnel Commission rules. (Art. 24.0(I).) Article 24.1 states that progressive
discipline should be followed, but may be bypassed if warranted by a serious offense.
If the District suspects that an employee has engaged in misconduct, it typically
conducts an investigation. The investigation may involve holding investigatory interviews
with the employee at issue, with CSEA representation.
If the District elects to continue pursuing discipline, then it prepares a “Preliminary
Notice Of Possible [Discipline] And Statement of Charges” (Statement of Charges).2 The
Statement of Charges explains to the employee that the District is considering recommending
2 According to assistant superintendent of HR Dr. Michael Vierra, the District typically
identifies the maximum possible discipline under consideration, even if the District ultimately
imposes lesser discipline or no discipline at all. Vierra said that he considered it inappropriate
for the District to, for example, notify an employee that the District is considering suspending
the employee, and then ultimately decide to proceed with dismissal.
3

discipline to the Governing Board. The document enumerates specific charges of suspected
misconduct. If the District contemplates a suspension, demotion, or dismissal, then, under
CBA Article 24.4, the employee is entitled to a pre-disciplinary meeting with the assistant
superintendent of human resources (HR). The employee may have CSEA representation and
may respond to the Statement of Charges and provide exculpatory or mitigating information.
The District may add or delete allegations from the information gathered during the pre-
disciplinary meeting, or may decide against proceeding with any discipline at all. If
allegations are added, the District amends the Statement of Charges and the employee may
have another pre-disciplinary meeting.
If the District decides to proceed with discipline, pursuant to CBA Article 24.5, the
District prepares a “Notice Of Recommendation for [Discipline] And Statement of Reasons.”
This document is based on those allegations in the Statement of Charges that the District
believes warrants discipline after concluding its investigation. The employee is informed of
his or her right to address the Governing Board, with CSEA representation, before the
Governing Board approves or rejects the recommendation.
If the Governing Board approves the discipline, the employee is notified in writing and
may appeal that decision to the District’s Personnel Commission, who may sustain or overturn
the discipline.
West Ranch High School’s Facilities and Maintenance Department
In the 2013-2014 school year, West Ranch High School (West Ranch) had 13 full-time
custodians working two different shifts. The day shift starts at 6:00 a.m. and ends at 2:30 p.m.
The night shift starts at 2:30 p.m., and ends at 11:00 p.m. Assistant principal Dr. Juliet Fine
supervises the custodians. Humberto Almaraz is the West Ranch plant manager, which is part
4

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of the classified unit, but he also plays some role in overseeing the work of the custodians. He
works the day shift.
A night lead oversees the custodians on the night crew. This position is also part of the
classified unit. Although the position does not assign work, it appears to have some “lead”
responsibilities, such as meetings with vendors and setting up for events. Night custodians
also contact the night lead via radio when taking lunch or other breaks. Night custodians have
fixed lunch periods to ensure that there is coverage throughout the night shift. Some are
assigned a lunch period of between 5:00 and 6:00 p.m. The others are assigned a lunch period
between 6:00 and 7:00 p.m. Prior to the incidents discussed below, Armando Yoguez was the
night lead. He did not testify.
Rumors From the Night Crew about Yoguez and Medina
Starting in Fall 2013, Fine began hearing informal reports from custodians that Yoguez
was receiving a visitor in a white car at night in the West Ranch parking lot. Fine also testified
that there were jokes and rumors amongst the night crew that Yoguez and Medina were
romantically involved and were meeting at night. In addition, night custodian Maria Yniguez
reported to Fine that Yoguez would leave his assignment and walk around campus for two or
three hours at a time a few times a week.
By Summer 2014, Fine started receiving more formal reports of Yoguez meeting with
someone in the parking lot. Night custodian Janie Serrano also reported seeing Yoguez outside
of campus while he was scheduled to be working.3 Fine reported her concerns to Vierra and
expressed some interest in investigating the nature of Yoguez’s nighttime visitor. Vierra
discouraged her from doing so. Eventually, night custodians discovered that Yoguez’s
3 It was Serrano’s day off.
5

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meetings were with Medina. After meeting with other night custodians, Vierra decided to hire
a private investigator to observe Medina and Yoguez.
Medina’s Activities as a CSEA Steward in Summer 2014
Multiple times during her testimony, Medina described West Ranch as her “problem
child,” because she had to meet with unit members, and custodians in particular, at that site
frequently during the 2013-2014 school year. Medina said she was particularly concerned with
Yoguez because, in May 2013, he had entered into a “last chance agreement”4 with the
District, whereby his employment at the District would terminate if he engaged in any future
misconduct covered under that agreement. The CBA entitles CSEA to use “the District’s
facilities and buildings at times other than normal working hours and hours of student
instruction,” if CSEA requests usage from a supervisor. (Art. 3.5.) In addition, as night lead,
Yoguez has access to a lockable office with a desk. Others on the night crew have access to
the office when it is not locked.
On or around May 22, 2014, Fine met with Yoguez about her expectations for him and
the other members of the night crew. Medina attended as well, at Yoguez’s request. The
following day, Fine issued Yoguez a “Summary of Understanding,” apparently covering the
subjects of the prior day’s meeting. Shortly afterwards, Medina contacted Fine requesting
4 According to Vierra, Yoguez had a physical altercation with another employee
resulting in that employee’s hospitalization. He said that Yoguez denied ever striking the
employee, but the District concluded that Yoguez was dishonest. He was also disciplined for
inappropriate contact with students. Vierra testified that he originally considered dismissing
Yoguez outright, but instead entered into the last chance agreement. Under the agreement,
Yoguez served a 30-day suspension and agreed not to engage in any physical violence,
misconduct with students, or dishonesty, for two years. Yoguez did not seek CSEA’s
representation for that agreement.
6

clarification about whether the memo was considered discipline. Fine agreed to amend the
memo to address Medina’s concerns.
On July 3, 2014, Medina accompanied night custodian Joe Garcia in a meeting with
Fine and West Ranch principal, Mark Crawford, to discuss Garcia’s concerns that the plant
manager favored some custodians over others and used vulgar language and derogatory names.
Later that day, Medina also represented Yoguez in a meeting with both Fine and Crawford
concerning the quality of Yoguez’s work during an overtime assignment over the weekend.
On August 13, 2014, Yoguez contacted Medina over an increase to his daily cleaning
assignment. According to Medina, the night lead has a smaller assignment from others
because of his lead duties.
Medina testified that, on August 18, 2014, Yoguez contacted her about an e-mail he
received from Vierra stating that he was under investigation. The two of them met that
evening in the West Ranch parking lot to review and discuss Vierra’s e-mail.
On August 21, 2014, Fine spot-checked Yoguez’s work. She testified that she inspects
custodial work regularly in the morning before students arrive on campus. Fine said that
several areas of Yoguez’s work did not meet her expectations. On August 22, 2014, Fine
issued Yoguez a verbal warning for his work performance. Medina later met with Fine to
discuss both the discipline and Yoguez’s workload.
On August 27, 2014, Medina met with Vierra to discuss concerns raised by another
West Ranch night custodian, Edwin Herrera. Like Garcia, Herrera had complained about the
plant manager favoring some custodians over others and using inappropriate language.
7

Medina’s Meetings With Yoguez in September 2014
On September 10, 2014, Vierra e-mailed Yoguez, expressing that “concerns have been
raised about your interactions with female custodians in your department.” Medina and
Yoguez met in the West Ranch parking lot at around 7:30 p.m., to discuss the e-mail. Later
that evening, Medina contacted Vierra by telephone to get more detail about the District’s
investigation. Vierra declined to elaborate, stating only that the District would provide
additional information at a later time.
On Friday, September 19, 2014, Fine issued a memo instituting a new policy requiring
the night crew to sign out during their lunch break and sign back in upon their return to duty.
Previously, custodians were only required to sign in and out during the start and end of their
shifts. Fine explained that she started the lunch policy because she needed some custodians on
campus at all times during the night shift. Fine said that, one evening, the fire alarm went off
at the site and District technology staff could not determine who from the night crew was on
campus to address the alarm. Yoguez contacted Medina about the new policy memo.
On Monday, September 22, 2014, Medina visited Yoguez at West Ranch to review
Fine’s memo from the previous week. Medina arrived at West Ranch at around 9:30 p.m. She
said she called Yoguez as she approached and he suggested that they meet at a narrow service
road near the site’s athletic field and across the site’s main parking lot. At hearing, Medina
explained that the field was lit at the time which illuminated the service road so she could read
documents in her car. The two met for around 30 minutes. Medina said that the two reviewed
and discussed the September 19, 2014 memo. She said Yoguez also asked about the status of
his September 16, 2014 complaint, but she did not have any new details.
8

Yoguez contacted Medina again on September 23, 2014. According to Medina,
Yoguez reported that Fine instructed Yoguez and another custodian to sign out for lunch at
6:00 p.m. When Yoguez explained that he did not take lunch at 6:00 p.m., Fine instructed him
to nevertheless sign out as though he had. Medina testified that she told Yoguez that
misrepresenting his time on District records constitutes “fraud,” and that she wanted to meet
and discuss what transpired. Medina parked in the site’s main public parking lot, which is also
lit. Yoguez joined her in the car at around 8:00 p.m. Medina said that the two of them
discussed Fine’s directive. Around 10 or 15 minutes later, they decided to leave the site.
During her direct examination by CSEA, Medina said she decided to leave campus to “review
documents,” but she did not identify which documents they reviewed. During cross
examination, Medina said that the two discussed the directive and Medina’s conversations with
others at CSEA about the lunch sign out policy, Yoguez’s September 16, 2014 complaint, and
the possibility of pursuing a grievance. Medina drove Yoguez back to work before 9:00 p.m.
Medina testified that she parked and waited in her car for Yoguez to retrieve a document for
her. Yoguez returned at around 9:30 p.m., and he stayed with Medina in her car until around
10:00 p.m. At hearing, Medina said she wanted Yoguez to retrieve Fine’s September 19, 2014
memo. She acknowledged seeing the memo during her visit the previous evening, but said that
she “did not take possession of it” at the time. She said that the two also discussed the
possibility of filing a grievance.
On September 25, 2014, Medina received a courtesy copy of e-mail correspondence
between Fine and CSEA representatives about the lunch sign out policy and West Ranch
overtime records. Medina testified that she wanted to update Yoguez and she met with him at
the service road near the West Ranch athletic field around 8:20 p.m. She said that Yoguez told
9

her that he was on his lunch break. According to Medina, they discussed the e-mails, as well
as other concerns he had at the time. She left before 9:40 p.m.
Unbeknownst to either Medina or Yoguez, the District’s hired private investigator
observed Medina’s meetings with Yoguez on September 22, 23, and 25, 2014. The
investigator determined that the two had met on each of the three dates and at the approximate
times discussed above. The investigator was unable to hear or observe what took place while
Yoguez was inside Medina’s car. The investigator produced a report of his findings, dated
September 30, 2014.
On September 30, 2014, at around 8:00 p.m., Medina met with Garcia and Herrera in
the West Ranch main parking lot, near the gym. Medina had prepared a complaint under the
District’s uniform complaint procedure based on their ongoing concerns with plant manager
Almaraz. Herrera testified that Medina met with both himself and Garcia at the same time, in
her car. She explained the content of the complaint she drafted and asked them to review it
before signing it. Both Garcia and Herrera signed the document and left Medina’s car.
Medina filed the complaint with the District shortly afterwards.
Yoguez’s October 6, 2014 Investigatory Interview
At some point, the District informed Yoguez and CSEA that it had scheduled an
investigatory meeting for Yoguez for October 6, 2014. Medina and CSEA staff representative
Valerie Hollins attended with Yoguez. Vierra questioned Yoguez about whether he had
mistreated coworkers, acted aggressively towards women, or failed to perform his work duties.
Yoguez denied any wrongdoing or poor performance.
Vierra then asked Yoguez if he ever received any visitors at West Ranch during his
shift. Yoguez denied having any visitors aside from his wife. He said his wife drives a white
10

car. Medina asked for permission to speak, which Vierra denied, stating that the interview was
over. Two days later, on October 8, 2014, the District placed Yoguez on paid administrative
leave, directing him not to enter District property without permission.
On October 10, 2014, the District issued Yoguez a Statement of Charges, indicating
possible dismissal, drafted by Vierra. In the document, Vierra stated that the District is
“considering recommending” that Yoguez be dismissed from employment because he:
on repeated occasions a) engaged in sexual relations and other
non-work activity on District property and during work hours,
and b) accepted pay for time in which you were not performing
work because you were either on school property engaged in
sexual relations or other non-work activity, or you had departed
school property altogether.
The October 10, 2014 Statement of Charges included the claim that Yoguez’s meetings with
Medina at West Ranch on September 22, 23, and 25, 2015, were to engage in “non-work
activity (likely sexual activity).” The document specified the times and location of each of the
three encounters, and the parties agree that those details are at least approximately accurate.
Yoguez was also accused of being dishonest about his meetings with Medina, threatening his
coworkers, and poor work performance. The Statement of Charges detailed Yoguez’s prior
discipline history including his last chance agreement. Vierra e-mailed a copy of Yoguez’s
Statement of Charges to Medina, at her request.
Medina’s October 15, 2014 Meeting with Garcia and Herrera
On October 15, 2014, Medina returned to West Ranch to meet with Garcia and Herrera
in her car. She discussed with them a grievance she had filed on October 9, 2014, about
violations of the overtime rotation policy at West Ranch. Both Medina and Herrera testified
that Yoguez was not present.
11

Yoguez’s October 21, 2014 Pre-Disciplinary Meeting
Yoguez’s pre-disciplinary meeting was held on October 21, 2014. Yoguez attended
with Medina and Hollins. According to Vierra, Yoguez acknowledged that he previously said
he had not received any visitors other than his wife, but said that it did not occur to him to
discuss his meetings with Medina because he did not consider her to be a visitor.
Medina’s October 22, 2014 Investigatory Interview
On October 22, 2014, the District held an investigatory interview for Medina. Medina
appeared with Hollins. During the meeting, Medina acknowledged meeting with Yoguez, but
said that they only met to discuss CSEA business. Vierra explicitly asked whether Yoguez and
Medina engaged in sexual activity at West Ranch, which Medina denied.
Vierra then asked Medina a series of questions about her role as a CSEA steward.
Hollins disputed the relevance of those questions. At hearing, Hollins admitted that some of
the questions about Medina’s meetings at West Ranch pertained to the District’s investigation,
but expressed concern that questioning employees about the details of their union activity
“sends a very chilling effect.” Vierra explained to Hollins that he found it unlikely that
Medina and Yoguez were conducting union business in the parking lot in her car, and needed
to understand what Medina’s normal practices were. At hearing, Vierra admitted to never
previously questioning any employee about his or her union activity. He proceeded to question
Medina over Hollins’ opposition. His questions covered topics including her level of training
and her record-keeping practices. Vierra also asked her whether any unit members had
complained to her about Yoguez. Medina responded to all of these questions.
Vierra then questioned Medina specifically about the events of September 22, 23, and
25, 2014. Medina admitted to meeting with Yoguez at West Ranch on each of those three
12

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nights, but said that the two were discussing CSEA business. Vierra then asked Medina to
review the private investigator’s report. During the interview, Medina acknowledged the
content of the report was accurate.
According to Vierra’s notes of the October 22, 2014, he asked Medina whether she
knew why Yoguez requested that the District serve Medina with his October 10, 2014
Statement of Charges. Medina responded that she is his local CSEA representative.5 The
notes submitted for the record also indicate that Vierra asked whether she appeared with
Yoguez at West Ranch on October 15, 2014, in contravention of the District’s administrative
leave order. She denied ever doing so.
Yoguez’s Amended Statement of Charges
On October 28, 2014, the District issued Yoguez an amended Statement of Charges.
Relevant to this case, the District added the allegation that Yoguez appeared at West Ranch on
the evening of October 15, 2014, with Medina and that his presence “appeared calculated to
intimidate witnesses during an ongoing investigation.” At hearing, Vierra explained that this
allegation was based on a report from custodian Serrano that she saw Yoguez and Medina at
West Ranch that day. The District also provided Yoguez with a copy of the private
investigator’s report. The District scheduled another pre-disciplinary meeting to discuss the
amended Statement of Charges.
Medina’s October 31, 2014 Statement of Charges
On October 31, 2014, the District issued Medina a Statement of Charges, authored by
Vierra. The document enumerates 11 “specific acts or omissions, individually and
5 Hollins’s notes from the meeting differed slightly, but corroborated that Medina was
asked why Yoguez wanted the District to contact her regarding his Statement of Charges.
13

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collectively, upon which your dismissal is being considered[.]” As with Yoguez, the District
accuses Medina of engaging in “non-work activity (most likely sexual activity)” at West Ranch
on September 22, 23, and 25. In the document, Vierra concludes that Medina’s explanation
that they were meeting over union business is “dishonest, not credible, and does not pass
muster.” He accuses Medina of assisting Yoguez with his misconduct, facilitating misuse of
District time, and dishonesty during the District’s investigation.
Vierra also alleges that Medina “abandoned [her] responsibilities towards other CSEA
unit members at the site in order to cover up [her] affair with Mr. Yoguez.” He also alleges
that Medina “made sure to intercept the letter [placing Yoguez on administrative leave] so that
it would be received by you and not Mr. Yoguez’s wife.” On or around November 10, 2014,
Medina filed a uniform complaint procedure complaint alleging that the District was pursuing
discipline against her because of her active role as a CSEA steward. The outcome of that
complaint was not specified for the record. To date, the District has not either formally
disciplined Medina or rescinded or amended her Statement of Charges. At hearing, when
asked why the District has not taken further action, Vierra responded “Well we’ve had a
number of items that have kind of all come together with this matter and just haven’t done it
yet. We haven’t done anything with it.”6
6 The District proceeded with its plans to dismiss Yoguez. It held a second pre-
disciplinary meeting on November 10, 2014. Two days later, it issued its formal dismissal
recommendation. The recommendation accused Yoguez of engaging in “non-work activity”
without any reference to “sexual activity.” It also did not reference Yoguez visiting West
Ranch after his administrative leave. On November 20, 2014, the District’s Governing Board
approved the dismissal. Yoguez appealed to the District’s Personnel Commission and a
hearing was originally scheduled for January 28, 2015. The hearing was later moved to June
29, 2015. Eventually, the Personnel Commission sustained Yoguez’s dismissal.
14

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ISSUES
1. 	Did the District issue Medina the October 31, 2014 Statement of Charges in
retaliation for her CSEA activities?
2. 	Did the District’s questions during Medina’s October 22, 2014 investigatory
interview about her CSEA steward activities interfere with protected rights?
CONCLUSIONS OF LAW
1. 	Retaliation Claim7
The PERB complaint in this case alleges that the District issued the October 31, 2014
Statement of Charges in retaliation for Medina’s service as a CSEA steward and for seeking
CSEA representation herself. To demonstrate that an employer discriminated or retaliated
against an employee in violation of EERA section 3543.5, subdivision (a), the charging party
must show that: (1) the employee exercised rights under EERA; (2) the employer had
knowledge of the exercise of those rights; (3) the employer took adverse action against the
7 The District argues that CSEA should be prohibited from litigating its retaliation
claim before PERB because the Personnel Commission found that Yoguez’s dismissal, under
similar circumstances was for just cause and not done in retaliation for his protected activity.
At hearing, I rejected this argument and denied admission of the Personnel Commission’s
decision as an exhibit (it remains marked as Respondent’s Exhibit V). I decline to reverse that
determination. Whether an employer has retaliated against a public employee for activities
protected under EERA is an issue within PERB’s initial exclusive jurisdiction. (EERA, §
3541.5.) The jurisdictional differences between issue presented to the Personnel Commission
in the Yoguez matter and those presented to PERB in this case make collateral estoppel
inappropriate. (Anaheim Union High School District (2015) PERB Decision No. 2434
(Anaheim UHSD), pp. 11-12, proposed dec., p. 4; State of California (Department of Industrial
Relations) (1998) PERB Decision No. 1299-S, pp. 9-10; Trustees of the California State
University (1990) PERB Decision No. 805b-H, pp. 7-9.) In addition, whether the District
retaliated against Yoguez for his CSEA activities requires a fundamentally different analysis
from whether the District retaliated against Medina for a wholly different, more expansive, set
of union activities.
15

employee; and (4) the employer took the action because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210, pp. 6-8 (Novato USD).)
In this case, the parties do not dispute that Medina is an active CSEA steward and that
she has met with District administrators, represented unit members, and filed grievances and
other complaints in that capacity. She also indisputably requested CSEA assistance during her
own personnel matters. These activities are protected under EERA. (Los Angeles Unified
School District (2012) PERB Decision No. 2244, pp. 7-8; Klamath-Trinity Joint Unified
School District (2005) PERB Decision No. 1778, p. 2; City of Monterey (2005) PERB Decision
No. 1766-M, proposed dec., pp. 8-9; Ventura County Community College District (1998)
PERB Decision No. 1264 (Ventura County CCD), p 16.) It is also undisputed that key District
administrators, such as assistant superintendent of HR, Vierra, and assistant principal Fine,
knew that Medina is a steward and personally met and/or corresponded with Medina in that
role. Vierra initiated the District’s investigation of Medina based initially on reports from Fine
and Vierra authored the October 31, 2014, Statement of Charges. That document also
acknowledges Medina’s role as a CSEA steward. These facts are sufficient to establish the
first two elements of the Novato USD analysis.
a. 	The Statement of Charges as an Adverse Employment Action
The parties dispute whether Medina’s Statement of Charges constitutes an adverse
employment action. The issue is “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, pp. 11-12; Palo Verde
Unified School District (1988) PERB Decision No. 689, pp. 7-8. 12.) It goes without say that
formal discipline, including dismissal, is adverse. (Fallbrook Union Elementary School
16

District (2011) PERB Decision No. 2171, p. 8.) Likewise, both the unequivocal notice of the
intent to pursue discipline and the threat to pursue discipline also constitute adverse actions.
(Monterey Peninsula Unified School District (2014) PERB Decision No. 2381, pp. 34-35; see
also EERA, § 3543.5, subd. (a); County of Merced (2008) PERB Decision No. 1975-M, p. 3,
citations omitted.)
However, as the District points out, not all references to discipline qualify as adverse
actions. In State of California (Department of Health Services) (1999) PERB Decision
No. 1357-S (DHS), PERB found that a supervisor’s non-specific comments that she would be
“seeking adverse action,” without further detail, was not in-and-of-itself adverse, reasoning
that the employee’s subjective apprehension about theoretical future discipline was
insufficient. (Id. at dismissal ltr., p. 2.) In contrast, the employee did suffer an adverse action
when he was later informed that he would be terminated. (Id. at warning ltr., pp. 2-3.)
In County of Merced, supra, PERB Decision No. 1975-M, the Board reaffirmed the
holding in DHS, supra, PERB Decision No. 1357-S, but concluded that “the case applies only
when the employer’s notice does not indicate that it has made a firm decision to impose
discipline, such as when the notice fails to provide any specifics of the action sought or the
reasons therefore.” (Id. at p. 3.) The Board in County of Merced similarly found no adverse
action where an employer notified an employee who had been absent without leave that it
would begin the termination process unless he returned to work. (Id. at p. 4.) The Board
concluded that the notice was not an unequivocal decision to terminate the employee because
the employer’s decision still hinged on whether the employee decided to return to duty. (Ibid.)
Short of full disciplinary action, the Board has also found that “[t]he initiation of an
investigation into alleged misconduct constitutes an adverse action against the investigated
17

employee.” (City of Torrance (2008) PERB Decision No. 1971-M, p. 17, citing State of
California (Department of Youth Authority) (2000) PERB Decision No. 1403-S (DYA).) The
investigation is considered adverse even if no discipline results. (Ibid.) But, some inquiries
into misconduct are not considered objectively adverse. For example, in Service Employees
International Union, Local 221 (Gutierrez) (2012) PERB Decision No. 2277-M (SEIU Local
221), an employee was contacted by his employer about whether he was improperly
performing union work while on duty. The entire inquiry was dropped the following day after
the charging party showed that he was on jury duty during the times he was accused of
misconduct. (Id. at pp. 3-4.) In declining to find any adverse employment action, the Board
drew an analogy to DHS, supra, PERB Decision No. 1357-S, concluding that the employee’s
subjective fears about receiving a call from his employer were not objectively adverse to
employment. (Id. at pp. 7-8.) In DYA, the Board found an employer’s investigation into
“discourteous” treatment towards students was adverse where the investigation lasted around
six months, involved specific allegations of misconduct, and included formal investigatory
interviews. (Id. at proposed dec., pp. 16-19, 32.) In that case, no discipline resulted from the
investigation. (Id. at proposed dec., p. 19.)
In the present case, the District is correct that it has not actually dismissed Medina from
employment or given unequivocal notice of its intent to dismiss her. Nevertheless, this case is
unlike DHS, supra, PERB Decision No. 1357-S, in that the Statement of Charges contains both
detailed allegations and specific contemplated discipline. And, unlike in County of Merced,
supra, PERB Decision No. 1975-M, the District’s decision to initiate the discipline process did
not depend on Medina correcting her behavior. Rather, the District informed her that it is
contemplating discipline primarily on her alleged past conduct. In addition, the District
18

acknowledges that the Statement of Charges is part of the District’s information gathering
process in that it provides employees with the opportunity to present additional evidence prior
to making any discipline recommendation. In that sense, this situation is similar to City of
Torrance, supra, PERB Decision No. 1971-M, where the employer’s disciplinary investigation
was found to be adverse. Unlike in SEIU Local 221, supra, PERB Decision No. 2277-M, the
District’s efforts involved more than just a passing inquiry. Rather, it was more like the
employer in DYA, supra, PERB Decision No. 1403-S, where Statement of Charges was the
product of months of investigation consisting in formal interviews. The District spoke with
West Ranch employees, hired a private investigator, and interviewed both Yoguez and Medina
about their alleged misconduct. The Statement of Charges itself triggered Medina’s right to
formally respond with exculpatory or mitigating evidence. Even though no discipline has been
issued to Medina to date, I conclude that the issuance of the Statement of Charges constitutes
an adverse employment action for purposes of PERB’s retaliation analysis.
b. 	Evidence of the District’s Retaliatory Motive
The final element of CSEA’s prima facie case for retaliation is whether there Medina’s
protected activities were a motivating factor in the District’s decision to issue her the
Statement of Charges. Evidence of motive is considered to be the nexus between the protected
conduct and the adverse act. “‘[D]irect proof of motivation is rarely possible, since motivation
is a state of mind which may be known only to the actor. Thus, . . . unlawful motive may be
established by circumstantial evidence and inferred from reading the record as a whole.’”
(Palo Verde Unified School District (2013) PERB Decision No. 2337 (Palo Verde USD), p. 10,
citations omitted; see also San Bernardino City Unified School District (2004) PERB Decision
No. 1602, p. 21.) In other words, “the employer’s motivation may be proven by either direct
19

or circumstantial evidence, or a combination of both.” (Omnitrans (2010) PERB Decision
No. 2121-M, p. 10, citing Carlsbad Unified School District (1979) PERB Decision No. 89
(Carlsbad USD).) Where there is direct evidence of a retaliatory motive exists, no additional
evidence is required to establish a prima facie case. (Regents of the University of California
(2012) PERB Decision No. 2302-H (UC Regents), proposed dec. p. 19, citing Regents of the
University of California (Davis) (2004) PERB Decision No. 1590-H; Omnitrans, p. 10, citing
Los Angeles County Superior Court (2008) PERB Decision No. 1979-C.)
1. 	Timing as Circumstantial Evidence of Nexus
PERB considers the timing between protected activities and the adverse action an
important circumstantial factor when determining the presence or absence of a nexus. (North
Sacramento School District (1982) PERB Decision No. 264, proposed dec., p. 23) Adverse
actions occurring concurrent with or shortly after an employee’s protected activities imply an
unlawful motive. On the other hand, the passage of a significant amount of time weakens the
nexus inference. (Los Angeles Unified School District (1998) PERB Decision No. 1300,
dismissal ltr., p. 1.) In either case, timing alone is typically not determinative and other
evidence is required to establish a prima facie case. (Ibid.)
In this case, Medina was active at West Ranch in her capacity as a CSEA steward
throughout the time the District was investigating her for the misconduct alleged in her
Statement of Charges. In September 2014, Medina contacted Vierra by telephone about the
nature of the District’s investigation of Yoguez. She also filed complaints concerning working
conditions for Garcia, and Herrera, and Yoguez. In early October 2014, Medina attended
Yoguez’s investigatory interview and his pre-disciplinary meeting as his representative.
Medina herself requested CSEA representation during her October 22, 2014 investigatory
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interview, around a week before receiving her Statement of Charges. The timing between
these activities and the Statement of Charges supports CSEA’s nexus claim.
2. 	Allegation that Medina “Abandoned” Her CSEA Steward Duties
One of the allegations in the October 31, 2014 Statement of Charges is that Medina
“abandoned [her] responsibilities towards other CSEA unit members at the site in order to
cover up [her] affair with Mr. Yoguez.” This allegation is problematic because I can conceive
of no valid justification for an employer to initiate discipline based on an employee’s
competency as union agent. Unsurprisingly, CBA Article XXIV does not list abandoning
one’s duty as a CSEA officer as a possible cause for discipline. The duty of fair representation
runs from an exclusive representative to the members of its bargaining unit. (Jurupa Unified
School District (2012) PERB Decision No. 2283 (Jurupa USD), p. 13.) For that reason, only
members of the bargaining unit have standing to challenge the adequacy of a union’s
representation. (Alameda County Management Employees Association (Harper) (2011) PERB
Decision No. 2198-M, p. 6; see also Orange County Water District (2015) PERB Decision
No. 2454-M, p. 25, fn. 20.)8 An employee likewise has no cause of action against the
employer for a union’s failure to represent his or her interests. (Jurupa USD, p. 13.) And, for
the most part, a union has wide discretion in how it serves its bargaining unit, so long as its
decisions are not arbitrary, discriminatory, or made in bad faith. (Coalition of University
Employees (Hall) (2010) PERB Decision No. 2095-H, pp. 4-5.) This is true even where a
union’s representation benefits some members to the detriment of others. (Id., citing
California School Employees Association & its Chapter 379 (Dunn) (2009) PERB Decision
8 At the time this proposed decision issued, the Board’s decision in Orange County
Water District, was under consideration for appeal. (petn. for review pending, G052725.)
21

No. 2028; Castro Valley Unified School District (1980) PERB Decision No. 149.)
Accordingly, Medina’s decisions as a steward, including who she decides to represent, are a
matter within her discretion and is protected under EERA section 3543.1. Thus, including this
allegation in the Statement of Charges constitutes direct evidence that the document was
issued, at least in part, because of Medina’s decision-making as a CSEA steward.
Moreover, there was simply no factual basis for this allegation. There was no evidence
that any unit member ever complained to Medina, or anyone else at CSEA, about Yoguez. Nor
was there any showing that Medina declined to assist any unit member requesting her
assistance. Finally, there was no evidence that Vierra had any reason to believe that Medina
was derelict in her duty as a steward. Therefore, even if it were true that Medina could be
considered for discipline based on the adequacy of her representation as a steward, the total
lack of any factual support for this claim would still be evidence of nexus.
3. 	Allegation That Medina “Intercept[ed]” Yoguez’s Communications
The October 31, 2014 Statement of Charges also alleges that Medina “made sure to
intercept [Yoguez’s administrative leave] letter so that it would be received by [Medina] and
not Mr. Yoguez’s wife.” I view this allegation similarly to the one discussed above. Yoguez
has the protected right to seek CSEA’s assistance in his personnel matters. (Jurupa Unified
School District (2015) PERB Decision No. 2420, proposed dec., p. 37, citing County of
Riverside (2011) PERB Decision No. 2184-M.) This includes designating a union
representative to assist him during disciplinary proceedings. (City of Monterey, supra, PERB
Decision No. 1766-M, proposed dec., pp. 8-9.) Medina, likewise, has the protected right to act
as Yoguez’s union representative. (See Ventura County CCD, supra, PERB Decision
No. 1264, p. 16.) Subjecting Medina to possible discipline because Yoguez designated her as
22

his representative and that she may have accepted that designation further demonstrates a
direct connection between the Statement of Charges and Medina’s protected steward activities.
Furthermore, there is, once again, no evidence that Medina even took steps to intercept any
District communications or that Vierra had any basis to believe that this was the case.
Accordingly, even if Medina could be disciplined for accepting Yoguez’s documents at his
request, the lack of any factual support for this allegation would be further evidence of nexus.
4. 	CSEA’s Other Nexus Claims
CSEA also asserts that threatening Medina with possible dismissal was unusually harsh.
It questions why Medina, with no record of discipline or poor evaluations, would be issued the
same punishment as Yoguez, who has had a long disciplinary history, including a “last chance
agreement.” An employer’s unusually severe punishment may constitute evidence that the
punishment was administered for retaliatory reasons. (See State of California, (Department of
Developmental Services, Napa State Hospital) (1984) PERB Decision No. 378-S, pp. 32-33.)
The charging party has the burden of proving that the discipline was disproportionate to the
alleged misconduct. (Id., see also Riverside Unified School District (1987) PERB Decision
No. 622, proposed dec., p. 64.) The charging party does not carry this burden where it was not
shown that the discipline was more severe than other similar misconduct or where the record
shows that each discipline case is considered by its own circumstances. (Id.) CSEA’s
argument is unpersuasive in this case for two reasons. First, is untrue that the District
recommended the same level of punishment for both Yoguez and Medina. The District has not
yet recommended any discipline for Medina and the uncontroverted evidence is that the
District regularly references the maximum possible discipline in its Statement of Charges and
then decides which discipline, if any, to recommend at a later step in the process. Second,
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CSEA offered no evidence suggesting that the District typically contemplated lesser discipline
for allegations involving dishonesty and assisting another employee in misappropriating
District work time, if proven. CSEA’s assertion that, in general, the District follows
progressive discipline practices is not in-itself persuasive without a showing that the alleged
misconduct here was of the type where lesser discipline was typically considered beforehand.9
CSEA also points out that the District harassed Medina by using private investigators to
continue following both Medina and Yoguez even after he was placed on administrative leave.
At hearing, Vierra asserted that he felt continued surveillance was warranted because both
Medina and Yoguez denied having any personal relationship and he thought that Yoguez in
particular might be dishonest in his dismissal hearing in 2015 before the Personnel
Commission, given his history of dishonesty. While I tend to agree with CSEA that this was
an unconventional practice, I have a difficult time ascribing the District’s behavior to animus
towards protected activity. There was no evidence that the District attempted to monitor any
other aspect of Medina’s steward activities, such as meetings with other unit members. Rather,
the investigation continued to focus on Medina and Yoguez’s meetings. In that sense, the
District’s asserted justification seems at least defensible. I myself found the evidence from
that later investigation marginally relevant to determining Medina’s general credibility as a
witness. Under the circumstances, I reject that argument that the District’s use of an
investigator after Yoguez left West Ranch supports CSEA’s prima facie case.
9 Evidence of Yoguez’s discipline history showed that the District found him to be
dishonest, and imposed a 30-day suspension, not dismissal. But the record did not indicate
whether the District initially issued Yoguez a Statement of Charges indicating possible
dismissal or a lesser punishment. Vierra testified that the District originally contemplated
dismissing Yoguez for his misconduct, but ultimately entered into the last chance agreement
instead.
24

In summary, I hold that CSEA has established the final element of its prima facie case
for retaliation. This holding is based on the close timing between Medina’s CSEA steward
activities and the issuance of the Statement of charges as well as the fact that the Statement of
Charges directly references matters within Medina’s discretion as a CSEA steward as possible
bases for discipline. Because all elements of a prima facie case are met, the burden of proof
shifts to the District.
c. 	The District’s Burden of Proof
CSEA has established all the elements of a prima facie case, the District now bears the
burden of proving that it would have issued the October 31, 2014 Statement of Charges to
Medina even if she did not engage in any protected activity. (See Martori Bros. Dist. v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, p. 730; Chula Vista Elementary School
District (2011) PERB Decision No. 2221 (Chula Vista ESD), p. 21, citing Novato USD, supra,
PERB Decision No. 210.) In cases where an adverse action appears to have been motivated by
both protected and unprotected conduct, the issue is whether the adverse action would have
occurred “but for” the protected acts. (Los Angeles County Superior Court, supra, PERB
Decision No. 1979-C, p. 22.) This requires the employer to establish both:
(1) that it had an alternative non-discriminatory reason for the
challenged action; and (2) that it acted because of this alternative
non-discriminatory reason and not because of the employee’s
protected activity.
(Palo Verde USD, supra, PERB Decision No. 2337, pp. 18-19, citations omitted; see also
County of Orange (2013) PERB Decision No. 2350-M, p. 16.) The mere existence of evidence
suggesting animus evidence is not determinative in retaliation cases. (Bellevue Union
Elementary School District (2003) PERB Decision No. 1561, proposed dec., p. 37.) In UC
Regents, supra, PERB Decision No. 2302-H, PERB found that discipline may ultimately be for
25

non-retaliatory reasons even where there is direct evidence of nexus. (Id. at proposed dec., p.
33.) In that case, as here, the adverse employment action directly referenced the employee’s
protected conduct. Nevertheless, PERB concluded that the employee’s other substantial
misconduct was the true motivation behind the discipline and the employer would likely have
issued it even in the absence of any protected activity. (Ibid.)
In this case, Medina’s Statement of Charges expressly references matters within
Medina’s discretion as a CSEA steward as the basis for possible discipline. However, it
abundantly is clear that those matters were not the thrust of either the District’s investigation or
the Statement of Charges itself. Rather, the vanguard of the District’s inquiry was whether the
nighttime meetings at West Ranch were improper and whether Medina was honest when
discussing those meetings. Both parties recognize this and both focus their arguments on
whether the allegations about Medina’s meetings with Yoguez were reasonable.
CSEA argues the District’s allegations lack any justification because it has no evidence
of any sexual activity. However, I find this argument unpersuasive because the possibility of
sexual activity on District property was only one of the more serious charges under
consideration. Other possible charges included assisting Yoguez in misappropriating District
time and dishonesty. The private investigator’s report, which Medina accepts as accurate,
indicates that Yoguez and Medina met during times that are inconsistent with Yoguez’s
reported lunch breaks. In addition, the District has reports from other custodians that Yoguez
was not working during duty time. Accordingly, the District has reason to be concerned over
whether Yoguez misused his on-duty time and whether Medina had a role in that misconduct.
In addition, the weight of the evidence shows that the District has reasonable basis to be
concerned about the nature of Medina’s nighttime meetings with Yoguez. In Fall 2013, vice
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principal Fine began hearing jokes and rumors among the night crew that Medina and Yoguez
were meeting up at night in the parking for romantic encounters in Medina’s car. Multiple
custodians reported seeing Yoguez with a visitor at night, later identified to be Medina. A
private investigator confirmed that Medina and Yoguez met in the parking lot three times.
CSEA is correct that neither the private investigator nor any District employee ever
observed any sexual activity between Medina and Yoguez. But I still conclude that it is
rational to question the assertion that the two were meeting for official CSEA business. Two
of the three visits between Medina and Yoguez were at a relatively unpopulated area of the
campus, which I find highly unusual, even suspicious, given that there were readily available
alternatives for those meetings.10 In addition, Yoguez initially denied having any visitors other
than his wife during his shift. Taking this evidence together with the statements from other
custodians, I find that the District had a valid basis for examining whether Medina and Yoguez
were engaging in misconduct, sexual or otherwise, during their late night meetings at West
Ranch.
I recognize that some of the information relied upon by the District is in dispute. The
exact nature of Medina’s meetings with Yoguez remains in dispute as well. Nevertheless, I
find that the District had a legitimate and pressing need to examine the nature of these
unorthodox meetings. When evaluating the employer’s justification, the issue is whether that
justification was honestly invoked and was the true reason behind any adverse employment
action. (Anaheim UHSD, supra, PERB Decision No. 2434, p. 11, citing Chula Vista ESD,
supra, PERB Decision No. 2221, p. 21.) Under these facts, I conclude that the District had a
10 Yoguez, as the night lead, had access to a lockable office with a desk and,
presumably, conventional lighting that could have been used as a meeting place. CBA Article
3.5 also provides for CSEA access to buildings and facilities outside regular business hours.
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non-discriminatory reason for issuing the Statement of Charges and that the District likely
would have pursued a substantially similar course of action even if Medina had not engaged in
the protected activities alleged in the complaint.11 Whether the District may later rely upon
disputed evidence in any future effort to actually impose discipline on Medina is beyond the
scope of this proceeding to decide. CSEA’s retaliation claim is therefore dismissed.
2. 	Interference Claim
EERA section 3543 protects public school employees’ right to “form, join, and
participate in the activities of employee organizations” in matters concerning employer-
employee relations. PERB’s interference test does not require evidence of unlawful motive,
only that at least “slight harm” to employee rights results. (Simi Valley Unified School District
(2004) PERB Decision No. 1714, p. 17 (Simi Valley USD).) The Board described the prima
facie standard as follows:
[I]n order to establish a prima facie case of unlawful interference,
the charging party must establish that the respondent’s conduct
tends to or does result in some harm to employee rights granted
under EERA.
(Ibid., quoting State of California (Department of Developmental Services) (1983) PERB
Decision No. 344-S; Carlsbad USD, supra, PERB Decision No. 89, p. 10.) PERB examines
11 The serious nature of the District’s investigation naturally raises questions about why
the District has not either formally pursued or abandoned any discipline of Medina. The
record does not provide a clear explanation. Vierra testified that the District has not acted on
Medina’s Statement of Charges one way or the other because “a number of items that have all
kind of come together” at once. This explanation was certainly vague, but I note that, on
November 10, 2014, Medina filed an internal District complaint alleging that the Statement of
Charges was issued in retaliation for her protected activity. In addition, Yoguez’s termination
hearing before the Personnel Commission was, at one point, scheduled to begin in January
2015. By April 2015, the instant case had been filed with PERB, also alleging that the
Statement of Charges was retaliatory. These related and concurrent actions provide a plausible
basis for delaying action on any contemplated discipline for Medina.
28

whether the respondent’s actions “‘reasonably tend to coerce or intimidate employees in the
exercise of rights protected under the Act.’” (Clovis Unified School District (1984) PERB
Decision No. 389 (Clovis USD), pp. 14-15, quoting NLRB v. Triangle Publications (3d Cir.
1974) 500 F.2d 597, p. 598.) That “‘no one was in fact coerced or intimidated is of no
relevance.’” (Ibid.) PERB considers the totality of the circumstances when making these
determinations. (Los Angeles Community College District (1989) PERB Decision No. 748,
proposed dec., p. 16.)
If a prima facie case is established, then PERB balances the degree of harm to protected
rights against the employer’s asserted interests. (Hilmar Unified School District (2004) PERB
Decision No. 1725, pp. 16, citing Carlsbad USD, supra, PERB Decision No. 89 at pp. 10-11.)
“Where the harm is slight, the Board will entertain a defense of operational necessity and then
balance the competing interests.” (Ibid.) On the other hand, “[w]here the harm is inherently
destructive [of protected rights], the employer must show the interference was caused by
circumstances beyond its control.” (Ibid.) The employer bears the burden of proving the
necessity of its actions. (Simi Valley USD, supra, PERB Decision No. 1714, pp. 17-18, citing
Carlsbad USD.)
As the District points out, not all employer questioning or interrogations about union
activity is considered harmful to employee rights. (Clovis USD, supra, PERB Decision
No. 389, citing Blue Flash (1954) 109 NLRB 591.) The Board examines the totality of the
circumstances to determine whether the questioning had a tendency to be threatening or
coercive. (Ibid.) The Board’s analysis does not focus on the specific words used during the
inquiry, but whether the employer, through its questioning, conveys disapproval toward the
union. (Id., citing PPG Industries, Inc. (1986) 251 NLRB 1146.) Using a similar approach
29

under federal labor relations authority, the National Labor Relations Board (NLRB) does not
recognize a “blanket rule” prohibiting employers from any inquiry into conversations between
employees and union representatives. (Cook Paint and Varnish Co. (1981) 258 NLRB 1230
(Cook Paint), pp. 1231-1232.)
In Clovis USD, supra, PERB Decision No. 389, the Board found that a school
administrator’s questioning employees about their opinions of an upcoming union election did
not cause even slight harm to employee rights. (Id. at p. 16.) There, the administrator was
“low-key” and well-liked by faculty, and took steps to quell any anxiety among employees that
they would face retaliation for their responses. (Ibid.)
In Compton Unified School District (2003) PERB Decision No. 1518 (Compton USD),
PERB found that a principal’s questioning of a rank-and-file unit member about who called a
union meeting held on school grounds to be unlawfully coercive. (Id. at proposed dec., pp. 25-
26.) There, the principal asked the question at least twice and then removed the employee
from a coveted leadership position after she refused to answer. PERB found under the
circumstances that the principal’s actions conveyed the employer’s disapproval and implied
that the meeting was improper activity. (Id., citing Clovis USD, supra, PERB Decision
No. 389.) PERB concluded that the questioning caused at least slight harm to employee rights.
In Cook Paint, supra, 258 NLRB 1230, the NLRB found that an employer’s
questioning about the substance of an employee’s conversation with his steward, followed by a
demand for the steward’s notes of that conversation was unlawfully coercive. It reasoned that
allowing the employer “to compel the disclosure of this type of information under threat of
discipline manifestly restrains employees in their willingness to candidly discuss matters with
30

their chosen, statutory representatives.” (Id. at pp. 1231-1232; see also H.S.M Machine Works,
Inc. (1987) 284 NLRB 1282, p. 1283.)
Here, the issue is whether subjects covered during Medina’s October 22, 2014
investigatory interview interfered with protected rights. As alleged in the PERB complaint, the
evidence shows that Vierra questioned Medina about her role as a CSEA steward, including
CSEA procedures and records, her conversations with Yoguez, and whether other members
ever complained or expressed concern to Medina about Yoguez. This questioning caused
some harm to protected rights. At the time, the District was already pursuing discipline against
Yoguez for his meetings with Medina. The October 22, 2014 meeting with Medina was a
formal investigatory interview which typically precedes discipline. Vierra, who conducted the
interview, is a high ranking administrator and the same person who is responsible for making
discipline recommendations to the District’s superintendent and Governing Board. Although,
as the District asserts, Vierra never told Medina that she could be disciplined for refusing to
answer his questions, under the circumstances, another employee in Medina’s place would be
concerned that she too could face discipline charges based on her responses. No one from the
District ever informed her otherwise.
At the same time, I find that the level of harm is mitigated by some important factors.
First, it was Medina herself that raised the issue of her CSEA steward activities to counter the
accusation that her meetings with Yoguez were improper. In doing so, Medina had some
expectation to be questioned on the nature of her meetings with Yoguez to test the veracity of
that defense. In addition, CSEA staff representative Hollins was present and she was able to
engage Vierra about the rationale behind these questions. Unlike in Compton USD, supra,
PERB Decision No. 1518, Vierra did not express or imply any opinion about Medina’s CSEA
31

activities during the October 22, 2014 interview. And I find no evidence of a larger inquisition
into CSEA’s activities at the District. Rather, the questioning appeared to be limited to
understanding the nature of Medina’s evening visits with Yoguez. Thus, I find that Vierra’s
questions about Medina’s CSEA activities and communications with members caused only
slight harm to protected rights.
Turning next to the employer’s justification, the District asserts that inquiring into
Medina’s CSEA activities was a necessary element of its investigation into possible
misconduct occurring on the West Ranch premises. I agree to an extent. The District was
examining the nature of Medina’s nighttime meetings with Yoguez even before she asserted
that they were meeting for CSEA business. Some probing into Medina’s practices as a CSEA
steward and her conversations with Yoguez was relevant to the District’s ongoing
investigation. It was also justified given the unusual manner in which Medina chose to meet
with Yoguez, i.e., outside of the time he stated as his lunch period and in an unpopulated area
of the campus when there were readily available alternative meeting locations. Vierra’s
questions about CSEA procedures and communications with Yoguez were reasonably related
to testing the truthfulness of Medina’s asserted defense. (See State of California (Board of
Equalization) (2012) PERB Decision No. 2237-S, proposed dec., p. 8 citing Evid. Code, § 780
[holding factors such as consistency in testimony and existence or nonexistence of facts
testified to are relevant when assessing witness credibility].) Unlike in Cook Paint, supra, 258
NLRB 1230, Vierra did not ask Medina for any actual notes or records from her meetings with
any unit members and his questions appeared to focus less on obtaining a detailed
understanding of CSEA’s processes, than on examining the truth of Medina’s assertion that she
was engaging in union activity at all.
32

Under the circumstances, I find that any harm caused by Vierra’s questioning regarding
CSEA procedures or Medina’s discussions with Yoguez was outweighed by the District’s need
to fully investigate questionable behavior observed at West Ranch. When Medina raised union
activity as a defense to any misconduct allegations, she made some questions on those subjects
relevant to the District’s investigation. (See Oakland Unified School District (2007) PERB
Decision No. 1880, p. 22, citing State of California, Department of Transportation (1982)
PERB Decision No. 257-S [holding that employees cannot insulate themselves from any
review by the employer simply by asserting that the activity was protected].) Moreover, an
employee engaging in otherwise protected activities may still be subject to discipline when the
employee’s conduct interrupts legitimate work and violates existing work rules. (Konocti
Unified School District (1982) PERB Decision No. 217, p. 7 [holding that employees engaging
in protected activity may still be subject to employer scrutiny when their activities interrupt
legitimate work and violates existing work rules].)
However, I reach a different conclusion regarding Vierra’s questioning over whether
other unit members ever expressed concerns or complained to Medina about Yoguez. Unlike
with the other areas of questioning, these questions bear no clear relationship to Medina’s
assertion that her meetings with Yoguez at West Ranch were for CSEA business. And,
interrogating employees about union sympathies or requests for union assistance interferes
with employees’ exercise of protected rights. (Horton Automatics (1988) 298 NLRB 405, p.
414; H.S.M Machine Works, supra, 284 NLRB 1282, p. 1283.) The District offers no specific
justification for this line of questioning. In this instance, the District’s need to investigate
Medina and Yoguez did not outweigh the coercive nature of these questions.
33

The District argues that any interference violation is improper under the void-for-
vagueness doctrine. According to FCC v. Fox Television Stations (2012) 132 S.Ct. 2307
(FCC), the doctrine requires invalidation of impermissibly vague laws on due process grounds.
(Id. at p. 2317.) The Court held:
A conviction or punishment fails to comply with due process if
the statute or regulation under which it is obtained “fails to
provide a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or encourages
seriously discriminatory enforcement.”
(Id., quoting U.S. v. Williams (2008) 553 U.S. 285, p. 306.) In FCC, two television
broadcasters challenged the FCC’s determination that broadcasts including fleeting use of
obscene words or a brief depiction of partial female nudity were actionably indecent. (Id. at p.
2314.) The FCC’s determination reversed prior determinations and pronouncements which
concluded that repetition and persistent focus on the offending depictions were key aspects of
determining whether a broadcast violated decency laws. (Id. at pp. 2314-15.) The Court found
that the FCC’s history of finding the passing nature of a depiction weighed against an
indecency finding meant that the two broadcasters had no notice that the fleeting depictions in
that case would constitute violations. (Id. at p. 2318.)
The District in this case argues that there is no existing legal authority which would
guide the District as to what questions were permissible under PERB’s interference standard.
(District’s brief, pp. 24-25.) This argument is hard to square with the fact that the District’s
own brief cites to Clovis USD, supra, PERB Decision No. 389, one of PERB’s leading cases
on the subject of coercive interrogations. That case was decided more than 30 years ago and
references NLRB authority (also cited by the District) that was decided more than 60 years
ago. According to those cases, and their progeny, the specific words used during an
34

employer’s questioning about union activity is not as important as whether the employer,
through its questioning, acts coercively or conveys disapproval toward the union. (See Clovis
USD, pp. 15-16.) This is, moreover, essentially the same standard that PERB applies in to all
interference claims involving employer speech. PERB examines the employer’s statements
and conduct in light of its overall context to determine whether the statements made would
tend to coerce or interfere with the exercise of protected rights. (See Los Angeles Unified
School District (2005) PERB Decision No. 1791, warning ltr., pp. 4-5, citing Rio Hondo
Community College District (1980) PERB Decision No. 128.) The District cites to no
authority referencing any dramatic change in its position similar to what occurred in FCC,
supra, 132 S.Ct. 2307. Accordingly, this argument is unpersuasive.
In conclusion, Vierra’s questioning Medina about whether represented employees
complained to her, as a steward, about Yoguez had some tendency to interfere with employees’
protected rights. The District offered no persuasive justification for these questions.
Accordingly, its conduct violated EERA section 3543.5, subdivision (a). (See Compton USD,
supra, PERB Decision No. 1518, proposed dec., p. 27.) This action also interfered with
CSEA’s ability to represent its bargaining unit. When employees are intimidated to not
participate in union activity, the collective strength of the whole union is weakened. This
conduct therefore also violates EERA section 3543.5, subdivision (b). (Ibid.) All other
interference claims are dismissed.
REMEDY
It has been found that the District violated EERA by questioning Medina about whether
CSEA unit members have approached her in her capacity as a steward to discuss concerns or
35

complaints about Yoguez. PERB has broad remedial powers under EERA section 3541.5,
subdivision (c), including:
The board shall have 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 reinstatement of employees with or without back
pay, as will effectuate the policies of this chapter.
In cases where an employer’s instructions to employees were found to interfere with
protected rights, PERB has ordered the employer to cease and desist from future interference
and post a notice concerning the violation. (Los Angeles Community College District (2014)
PERB Decision No. 2404, proposed dec., pp. 21-22; State of California (Employment
Development Department) (2001) PERB Decision No. 1365a-S, pp. 11-12.) These are all
appropriate remedies here. Accordingly, the District is ORDERED to cease and desist from
interfering with protected rights and to post a notice of this violation in all work areas were
notices to classified bargaining unit members are customarily placed. The notice posting shall
include both a physical posting of paper notices at all places where certificated bargaining unit
members are customarily placed, as well as a posting by “electronic message, intranet, internet
site, and other electronic means customarily used by the District to communicate with its
employees in the [faculty] unit.” (Centinela Valley Union High School District (2014) PERB
Decision No. 2378, pp. 11-12, citing City of Sacramento (2013) PERB Decision No. 2351-M.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the William S. Hart Union High School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5,
subdivisions (a) and (b). The District violated EERA by interrogating Amber Medina, a
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steward for California School Employees Association, and its Chapter 349 (CSEA) about
whether represented employees had complained to her in her capacity as a steward about
another represented employee. All other claims were dismissed.
Pursuant to EERA section 3541.5, subdivision (c), it hereby is ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with Medina’s protected rights.
2. 	Interfering with CSEA’s right to represent its bargaining unit.
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,
post at all work locations where notices to employees in CSEA’s bargaining unit 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 it 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. The Notice shall also posted by electronic message, intranet, internet
site, and other electronic means customarily used by the District to communicate with
employees in CSEA’s bargaining unit.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on CSEA.
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Right to Appeal
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:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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, § 32300.)
A document is considered “filed” when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A document is also considered “filed” when received by facsimile transmission before the close of
business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirements of PERB Regulation 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, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090, 32091 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, §§ 32300, 32305, 32140, and
32135, subd. (c).)
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