Hilmar Unified School District (PERB 1725E)

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

HILMAR UNIFIED TEACHERS ASSOCIATION,
Charging Party, Case No. SA-CE-2140-E

Vv. PERB Decision No. 1725

HILMAR UNIFIED SCHOOL DISTRICT, December 15, 2004

Respondent.

Appearances: California Teachers Association by Ballinger G. Kemp, Attorney, for Hilmar
Unified Teachers Association; Atkinson, Andelson, Loya, Ruud & Romo by Marleen L. Sacks,
Attorney, for Hilmar Unified School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Hilmar Unified School District (District) of an
administrative law judge’s (ALJ) proposed decision (attached). The unfair practice charge
alleged that the District violated the Educational Employment Relations Act (EERA)' by
engaging in unlawful conduct during the statutory impasse procedure. The Hilmar Unified
Teachers Association (Association) alleged that this conduct constituted a violation of EERA
section 3543.5(a), (b) and (c).

The Board has reviewed the entire record in this matter, including the unfair practice

charge, the complaint, the parties’ pre-hearing briefs, the ALJ’s proposed decision, the

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

exceptions and the Association's response to the District's exceptions. In light of the
Board's review, we affirm in part and reverse in part the ALJ's proposed decision.
BACKGROUND
At the time of the events at issue, the parties were participating in the statutory impasse
procedure.
June 5 Mediation Session
In February 2002,2 the Association and the District began contract negotiations, which
quickly led to deadlock. The first mediation session occurred on May 1. Soon after that first
session, around mid-May, District Superintendent David Miller (Miller) and Association
Representative Rolf Tallberg (Tallberg) discussed dates for additional sessions. The time
ultimately picked was the morning of June 5. Notwithstanding that selection, Miller expressed
some concerns about that date because it was the day of the middle school graduation
ceremony with high school graduation occurring the next day. Miller was busy with related
duties on those days. Miller further testified that he told Tallberg that he was concerned about
possible picketing by teachers during the mediation session when students, their relatives and
others would be present for graduation. The middle and high schools were located next to the
District office where the mediation sessions took place. Miller stated at the hearing that
Tallberg indicated agreement to this condition but Tallberg testified that he did not recall
discussing Miller's concern regarding concerted activity at this time. Tallberg thought that the
first time he discussed it with a District official was on June 3.
Before June 5, the Association distributed a flyer that stated:
2Unless noted otherwise, all dates refer to 2002.
2

Important! All staff members join the Hilmar Teachers
United for Settlement in front of the District Office Wed. June 5
[at] 7:30- 7:59 am and 3:15 - 3:45 pm[3 J Join the teachers as we
stand together in support of reaching an agreement at
negotiations.
Tallberg testified that the flyer was to allow the teachers to meet so that the Association could
provide information about the status of negotiations. When Miller saw the flyer, he contacted
District Chief Negotiator and Counsel Chesley Quaide (Quaide) to discuss his previous
conversation with Tallberg and convey his concerns about picketing during graduation
ceremonies. On June 3 or 4, Tallberg and Quaide spoke by telephone. During that call,
Quaide told Tall berg that the June 5 date was acceptable to the District if there was no
concerted activity. Tallberg thought of concerted activity as "some kind of rally, picketing,
organized kind of protest activity, or informational activity by the Association." 4 Tall berg
responded that he knew of no plans for such activity "so that was fine with me." 	Tall berg
further explained that the teachers were to meet before and after the session to receive
information from the Association regarding the status of negotiations. The two debated
whether concerted activity in front of the District office on June 5 was an unfair practice and
agreed to disagree.
Tallberg talked to Miller later that day and Miller reiterated his concern about
disruption during graduation. Tallberg contacted Association President Katey Clark (Clark)
and advised her that the teachers not meet on the afternoon of June 5.
3Tallberg testified that he did not think that he actually saw the flyer until sometime
after the mediation session.
4Tallberg also testified that he believed that his and Quaide's understanding of the
efinition of concerted activity may be totally different. Tallberg stated that he would not
haracterize the gatherings before and after the mediation sessions as concerted activity but as
n opportunity to pass information along to the members.
d
c
a
3

mediation session occurred on June 5. The teachers met at the District office in the
morning before the session to receive a status update on negotiations. Also, Clark distributed a
flyer to Association members, which stated the following:
As you are aware, we had planned to meet this afternoon in
support of our bargaining team. Prior to setting our mediation,
Dr. Miller told the Association that he did not want any activities
to take place which might impact the graduation this evening. He
stated that if any such activities took place, the District would not
meet. He apparently feels that if we meet outside the District
offices this afternoon, that will cause a disruption.
In an effort to keep the mediation process moving, we agreed not
to hold any organizing activities this afternoon. However, we
urge everyone to show their support for the bargaining team
individually and let them know you are behind them.
The teachers followed Tallberg's advice and did not meet in the afternoon.
Meetings with the Self Insured Schools of California
During the 2002 negotiations, the District offered the Association new plan options for
health benefits. The District was offering the same options to its classified employees, who
were not represented; and so Miller scheduled an informational meeting with classified staff
and a representative of the Selflnsured Schools of California (SISC), the District's health
insurance administrator, but did not schedule such a meeting for certificated employees
represented by the Association. Instead, Miller invited newly elected Association President
Joyce Mitchell (Mitchell) and other Association representatives as a "courtesy." Although
classified employees could ask questions at any time during the meeting, Miller told Mitchell
that Association representatives would be restricted to holding their questions to the end of the
meeting, to prevent overwhelming the classified employees.
It is unclear whether Association representatives attended this meeting but if they did,
did not ask questions. Rather, the Association scheduled its own meeting with SISC
4

John Stenerson (Stenerson). Before the meeting, Miller told Mitchell that
Stenerson complained of "numerous phone calls" from the Association, about being placed in
the middle between the District and the Association, and of questions that were primarily
concerning negotiations. Miller asked Mitchell to work through the District on health plan
related issues. He suggested that the two contact Anna Marie Bettencourt, the District's health
plan specialist. Mitchell responded that Miller was interfering with her right to contact SISC
to obtain information about the health plans. Nonetheless, Mitchell invited Miller to attend the
meeting with Stenerson. Mitchell testified that Miller responded angrily, "very harsh and
intimidating." Miller stated to Mitchell, "What did I tell you?"
Mitchell claims that she only called Stenerson 4 or 5 times without incident and that the
calls only occurred after her conversation with Miller. While other Association representatives
may have called Stenerson earlier, none of these were identified in the record. 	Stenerson did
not testify at the hearing. The Association inquiries to SISC were related to negotiations, as
the Association and the District were negotiating a significant change in the health benefit
program and the Association has a duty to ensure that its members are informed regarding the
change and its impact.
Tentative Agreement
By the end of August, mediation was unsuccessful and the parties began factfinding.
he health benefit program was still on the table. SISC offered three plans. The District
ffered two plans and to pay the $72 per month copayment that employees previously had to
ay. The parties eventually achieved a tentative agreement on two of the plans but other issues
recluded a complete agreement. After the tentative agreement, the Association put the health
enefits issue to a vote before agreement on the entire contract. The Association devised a
T
o
p
p
b
5

ballot asking: (1) if the members wanted to separate the tentative agreement on health
benefits from the rest of negotiations, and (2) which of the two options they preferred.
On September 12, before the employees voted, Miller sent out the following memo:
As you are probably aware, the leadership ofH.U.T.A. has
approved the removal of the $72.00 per month x 10 that each
certificated employee has been contributing to our Health Plan
since September 2000 (this brings the insurance cap to
$8,296.20). The District will pick up this cost beginning with
everyone's October paycheck.
Also, the leadership has informed me that they have selected PB
Option 1-B and PB Option 2-C as the two Plans for you to choose
from. The two choices are included with this letter. Please stop
by the District Office to inform Anna Marie Bettencourt and/or
Mary Martins before September 30th which Plan you have
selected. They will also answer questions that you might have.
Miller distributed this memo because accounting requirements dictated that the District
begin implementation of the plans in September if the teachers were to receive the benefit of
the eliminated copayment in October. Upon receiving the memo, teachers expressed concerns
about the options, which were communicated to Miller and Mitchell.
Miller's memo was in accord with the parties' intent to begin implementation of the
health plan. Quaide testified that Association Representative Jim Schlotz (Schlotz) had agreed
to take "preliminary steps" to implement the health plan tentative agreement and "hold off on
final action till we got word of ratification." Quaide communicated to Miller his agreement
with Schlotz. Although Mitchell states that she was unaware of the verbal arrangement
between Quaide and Schlotz, Schlotz did not testify at the hearing.
Around September 16, Mitchell told Miller that the tentative agreement had not been
ratified. Miller immediately stopped implementation of the program. By September 27, not
having learned whether the tentative agreement had been ratified, Miller sent Mitchell a memo
that stated, in pertinent part:
6

purpose of this memorandum is to inquire as to whether this
Tentative Agreement has been put to a ratification vote by the
unit, and if so, what were the results of this vote? It has been
over three weeks since this Tentative Agreement was signed off,
and the District has not heard any reports of any subsequent
ratification vote.
In the memo, Miller further asked Mitchell to answer him by 4:00 p.m. Mitchell
responded late that day that the teachers had ratified the tentative agreement on September 24,
adopting the original health plan and one additional plan. However, the parties never reached
agreement on the overall contract and the District imposed certain terms on the unit at the end
of impasse.
ALJ'S PROPOSED DECISION
The ALJ evaluated the following issues: (1) whether Miller's statements that the
District would participate in the June 5 mediation only if the Association agreed not to engage
in concerted activity tend to interfere with protected rights; (2) whether Miller's statements
that Mitchell not contact the District's .health insurance administrator tend to interfere with
protected rights under EERA; and (3) whether Miller bypassed the Association in
communicating with employees regarding health benefits and/or unilaterally implement
changes in health benefit plans, in violation of its duty to participate in the impasse procedure
underEERA.
Miller's Statements Concerning June 5 Mediation and Contacting SISC Directly
The ALJ found Miller's statements concerning the June 5 mediation to violate protected
rights. The ALJ evaluated the facts under the test set forth in Rio Hondo Community College
District (1980) PERB Decision No. 128 (Rio Hondo I) and its progeny. The Board has held
that non-disruptive informational picketing is protected conduct and that the employer has a
duty to participate in the mediation process in good faith. Therefore, conditioning
7

in a mediation session on waiver of a statutory right is unlawful under EERA.
The ALJ further opined that the District may not threaten to interfere with or delay the
statutory impasse procedure based on a concern that employees might exercise their right to
participate in lawful concerted activities organized by the Association even if the District does
not follow through on its threat. (Rio Hondo Community College District (1983) PERB
Decision No. 292 (Rio Hondo II).) Thus, while the District has no duty to agree to a specific
date for mediation, it may not condition its participation on waiver of a statutory right.
According to the ALJ, this is what occurred here. The testimony of Tallberg, Miller and
Quaide all corroborate the District's position that it would not mediate on that date if the
Association picketed the mediation session.
The ALJ disagreed with the District's position that these statements merely comprised a
bargaining proposal. In the cases cited by the District (Modesto City Schools (1983) PERB
Decision No. 291 (Modesto); Chula Vista City School District (1990) PERB Decision No. 834
(Chula Vista)), negotiations over waiver of statutory rights occurred in the context of a
negotiation setting. In this case, Miller and Quaide's statements did not occur in the context of
negotiations and so they could not be construed as a mere proposal. Rather, the parties were
setting dates for mediation. The District's stance was essentially if the Association pickets, it
would not meet on June 5. As stated by the ALJ, "this is hardly the kind of proposal the Board
found lawful in Modesto." In the interest of moving negotiations forward because of the
important issues remaining on the table, Tallberg agreed. Therefore, Miller's statements
caused the Association to forfeit its right to informational picketing or meeting related to
negotiations, a protected right, and thus interfered with protected rights.
Similarly, the ALJ found that the District interfered with protected rights in Miller's
statements to Mitchell that she not contact SISC directly. When Mitchell invited Miller to the
8

she scheduled with SISC, he responded, "What did I tell you?" The District concedes
that Miller was perturbed because Mitchell acted against Miller's wishes. The ALJ found the
facts similar to those in Oakdale Union Elementary School District (1998) PERB Decision
No. 1246 (Oakdale), in which the union president complained to a district's workers'
compensation insurance carrier regarding the administration of the parties' collective
bargaining agreement as an extension of earlier attempts to resolve safety issues. In Oakdale,
the Board had found the employee's conduct to be protected. Here, Mitchell was president of
the Association, the parties were negotiating new plans for employee health benefits, and
Mitchell had questions for the health plan administrator. The Association needed the
information in order to bargain intelligently and had a duty to ensure that the membership was
informed of the changes in the new plans under consideration. Thus, Mitchell had a protected
right to contact SISC for such information. (See e.g., Stockton Unified School District (1980)
PERB Decision No. 143 (Stockton).) The ALJ did not credit Miller's testimony that Stenerson
complained to him since_the testimony was uncorroborated hearsay, while Mitchell.testified
that she never contacted Stenerson until after Miller forbid her from doing so.
Bypassing the Association and Unilateral Implementation of Health Benefits
The ALJ found that there was no support for the Association's allegation that the
District bypassed the Association and unilaterally implemented the health benefits. Under the
law, the employer may not directly communicate with employees to undermine the union's
exclusive authority to represent its members. The employer also violates the duty to bargain
by bypassing the exclusive representative to negotiate directly with employees over matters
within the scope of representation. However, once a policy is lawfully established, the
employer may take steps to implement the policy, including consulting with employees.
(Walnut Valley Unified School District (1981) PERB Decision No. 160.) Quaide and Schlotz
9

a verbal agreement that allowed the District to take preliminary steps to implement the
health benefit plans that were tentatively agreed to by the parties. Under this verbal agreement,
final implementation would not occur until ratification of the policy by the teachers.
Therefore, Miller's September 12 memo cannot be construed as an attempt to bypass the
Association. The memo conformed to the tentative agreement, contained no inaccurate
information, and clearly stated that the benefit plans were the result of negotiations.
Furthermore, the preliminary steps in the memo benefited the teachers but not the District.
Although some teachers expressed concern about the memo, the ALJ found that the concern
was arguably caused by the Association's delay in holding the ratification vote.
The ALJ also found that the District also did not unilaterally change health benefits.
The September 12 memo itself did not constitute a change. Once Mitchell told Miller that the
tentative agreement had not been ratified, Miller stopped implementation of the plans. Even if
the September 12 memo did initiate implementation of the plan, Miller stopped as soon as
Mitchell contacted him. (Moreno Valley Unified School District (1982) PERB Decision
No. 206 (Moreno Valley).) In either event, the ALJ concluded that the District did not violate
the duty to bargain.
As remedies, the ALJ ordered the District to cease and desist from interfering with
protected rights in violation of EERA section 3543.S(a) and (b) and to post a notice
incorporating the terms of the order.
DISCUSSION
As no exceptions were taken to the bypass and unilateral change issues, these issues
will not be addressed. As a result, the Board adopts the ALJ' s findings of facts and
conclusions of law for these issues.

District excepts to the ALJ' s findings of interference in violation of EERA. The
test for whether an employer has interfered with the rights of employees under the EERA does
not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. The Board described the 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. [State of California (Department of Developmental
Services) (1983) PERB Decision No. 344-S, citing Carlsbad
Unified School District (1979) PERB Decision No. 89; Service
Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106.]
Under the above-described test, a violation may only be found if EERA provides the
claimed rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board
held that a finding of coercion does not require evidence that the employee actually felt
threatened or intimidated or was in fact discouraged from participating in protected activity.
In this case, the ALJ found that the District interfered with the Association's protected
right to engaged in protected concerted activities on June 5 and with the Association's
protected right to request information directly from SISC, the District's health plan
administrator. In the first situation, Miller and Quaide clearly threatened to cancel the
mediation session scheduled for June 5 if the Association proc·eeded with its informational
meeting. The Board has long held that a public school employer is "entitled to express its
views on employment related matter over which it has legitimate concerns in order to facilitate
full and knowledgeable debate." (Rio Hondo I, p. 19.) Further,
[t]he Board finds that an employer's speech which contains a
threat of reprisal or force or promise of benefit will be perceived
as a means of violating the Act and will, therefore, lose its
protection and constitute strong evidence of conduct which is
prohibited by section 3543.5 of the EERA.
11

Board utilizes an objective test and requires the charging party to demonstrate that
an employer's communications would tend to coerce or interfere with a reasonable employee
in the exercise of protected rights, and the fact that the employees may interpret statements,
which are otherwise protected, as coercive does not necessarily render those statements
unlawful. (Regents of the University of California (1983) PERB Decision No. 366-H.) The
employer's statements are viewed in their overall context to determine if they have a coercive
meaning. (Los Angeles Unified School District (1988) PERB Decision No. 659.) Miller
indicated two reasons that June 5 was a difficult date. The first reason involved Miller's busy
schedule of duties during graduation and the resulting limited time to participate in mediation.
The second reason pertained to Miller's expressed concern to Tall berg that he did not "really
want concerted picketing, or marching around, or people in front of the District office when we
have parents or grandparents, and the people coming in for graduation." Miller also testified
that he would have insisted on a day other than June 5 if Tallberg had stated that the
Association would picket the mediation session. Quaide communicated Miller's latter concern
on June 4 to Tallberg when he stated that Miller would participate in the mediation on June 5
only if there were no concerted activities on that date.5 Whether there was an agreement in
mid-May not to engage in concerted activities is not certain and the ALJ did not make any
finding on this issue.
Conduct, such as non-disruptive informational picketing is protected under EERA.
(San Marcos Unified School District (2003) PERB Decision No. 1508 (San Marcos).) Further,
the District has a duty to participate in the mediation process in good faith. 	(Moreno Valley
5We find insufficient evidence of an agreement by the Association weeks earlier to
forego concerted activities in order to schedule the June 5 mediation session. We therefore
reject the District's waiver argument..
12

School District (1982) PERB Decision No. 206.) The Board has long disapproved
threats to suspend statutorily mandated rights. In Rio Hondo II, the Board held that the
employer's emergency resolution to suspend various employee organization rights if the
employee organization encourages its members to engage in a work stoppage interfered with
the rights of employees under EERA. The Board explained:
A threat to punitively suspend statutory rights tends to undermine
the status of the exclusive representative and has a chilling effect
on employee activity. This is so because an employer's threat is
backed by the considerable power that an employer holds over an
employee.
However, statutorily protected rights, "such as the right to engage in non-disruptive
informational picketing, can be divested, by employees or their exclusive representative,
through a 'clear and unmistakable waiver."' (San Marcos, p. 28, citations omitted.) Such a
waiver will not be lightly inferred particularly when the waiver of a statutory right is involved.
(Fresno Unified School District (1982) PERB Decision No. 208, p. 16, citing Amador Valley
Joint Union High School District (1978) PERB Decision No. 74 and Timken Roller Bearing v.
NLRB (6 th Cir. 1963) 325 F.2d 746 [54 LRRM 2785].)
In this case, regarding Tallberg's discussion with Miller in mid-May to schedule the
second mediation session, Miller testified that he indicated two concerns to Tallberg about the
June 5 date: (1) Miller's busy schedule during graduation week, and (2) Miller's concern that
picketing would disrupt graduation ceremonies that day. 	Miller further testified that Tallberg
agreed that the Association would not engage in concerted activity in order to mediate on the
June 5 date. Tallberg does not dispute that he made this agreement; rather, he states that he
does not recall making the agreement.
However, during conversations with Quaide and Miller on June 3, Tallberg testified
that he was unaware of any planned concerted activity and that an agreement that the
13

would not engage in such activity was fine with him in order to proceed with the
mediation session on June 5. 	Miller called him later that day and reiterated his concern that
picketing would cause disruption during graduation. The middle school was located adjacent
to the District offices, where the mediation session took place. The planned informational
meetings were to occur outside the District offices. Tallberg, as an Association representative
and negotiator, had authority to commit the Association to waive its right to engage in
concerted activity. The Association does not argue otherwise. In testimony, Tallberg notes
that he and Miller may have had different understandings as to what "concerted activity" and
"picketing" entail. However, Tall berg, with his understanding of those terms, requested
Association President Clark to cancel the information meeting that was scheduled for the
afternoon of June 5, after the mediation session. It is important to note that the Association
still held its morning informational session for teachers on June 5 and there is no evidence that
the District tried to prevent such activities from occurring on dates other than June 5, during
graduation. Under these circumstances, we find that the Association clearly and unmistakably
waived its right to host an informational meeting after the mediation session on June 5.
In the second situation, Miller attempted to bar Mitchell from obtaining health plan
facts from the direct source, the health plan administrator by making inquiries instead through
District officials. The parties were engaged in negotiations for a new collective bargaining
agreement over health benefits and were discussing significant changes from the current plan.
It is long-established "that an exclusive representative is entitled to information sufficient to
enable it to understand and intelligently discharge its duty to represent bargaining unit
members." (Chula Vista, at p. 50.) The Association has a duty to ensure that the unit members
were informed of the changes in the new health plans under consideration. (Stockton,
14

14-15, in which health cost data is presumed relevant absent showing that its provision
would be unduly burdensome.) Mitchell was merely attempting to obtain information on
behalf of the members independent of the employer.
We further agree with the ALJ that the facts in this case parallel those in Oakdale. In
Oakdale, the collective bargaining agreement provided that employees shall report unsafe
working conditions to their supervisor. The union president complied with the collective
bargaining agreement by consistently reporting unsafe issues to the principal. When a safety
inspector from the district's worker's compensation insurance carrier approached her station,
the union president provided the inspector with a list of various unsafe conditions at the school.
As a result, the district issued the union president a memorandum that she was to report all
safety issues directly to the principal and that this memo would be placed in her file. The
Board found that the union president's report to the safety inspector was consistent with the
parties' collective bargaining agreement and was an extension of her attempts to resolve these
issues through discussions between the union and the district. As a result, the Board found
these activities to comprise participation in the activities of an employee organization and thus
protected under EERA section 3543. Similarly, Mitchell, the Association president, was
attempting to obtain health plan information from SISC, the health plan administrator, in order
to be informed of health plan options at the negotiating table and for explanation of options
under consideration to members. This was part and parcel of her duties as an Association
representative at the bargaining table and fulfillment of her duty to intelligently represent her
members in negotiating the health benefit package. We thus find that Miller's statements to
ban Mitchell from obtaining this information tend to interfere with Mitchell's rights to
represent unit employees and with the right of employee's to Mitchell's representation.
15

Carlsbad, the Board set forth a test for interference balancing the harm to employees
with the interests of the employer. Where the harm is inherently destructive, the employer
must show the inference was caused by circumstances beyond its control. (Carlsbad, at pp. 10-
11.) Where the harm is slight, the Board will entertain a defense of operational necessity and
then balance the competing interests. (Id.) Even assuming the harm to employees was slight,
the District has not provided evidence of operational necessity. Miller testified that his reason
for precluding Mitchell from directly contacting SISC involved alleged numerous complaints
from Stenerson regarding calls from the Association over negotiations-related questions.
Miller's testimony constituted uncorroborated hearsay and correctly was not credited by the
ALJ. Under PERB Regulation 32176:6
Compliance with the technical rules of evidence applied in the
courts shall not be required. Oral evidence shall be taken only on
oath or affirmation. Hearsay evidence is admissible but shall not
be sufficient in itself to support a finding unless it would be
admissible over objection in civil actions. Immaterial, irrelevant,
or unduly repetitious evidence may be excluded. The rules of
privilege shall apply. Evidence of any discussion of the case that
occurs in an informal settlement conference shall be inadmissible
in accordance with Evidence Code Section 1152.
(Emphasis added.)
The hearsay statement is the only evidence provided by the District to support its
rationale impeding the Association's right to obtain information and thus under Section 32176,
is insufficient to support a finding of operational necessity. The District did not profer any
other evidence of operational necessity. In contrast, Mitchell testified that she called Stenerson
four or five times but only after Miller directed her not to contact him. Thus, there is no
evidence to support the veracity of Miller's comments.
6PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
16

conclude, under the objective test stated above, that Miller's statements to Mitchell
not to contact SISC directly tend to interfere with a reasonable employee's exercise of
protected rights.
ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that Hilmar Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.5(a) and (b). 	The
District violated the EERA when its agent David Miller informed the president of Hilmar
Unified Teachers Association (Association), Joyce Mitchell, that he did not want her to
· directly contact the District health benefits administrator for information relating to health
benefit plans that were then under negotiation.
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Making statements that tend to interfere with the right of employees to
form, join and participate in the activities of an employee organization of their own choosing
for the purpose of representation on all matters of employer-employee relations by attempting
to prevent the Association from directly inquiring about healthcare benefits from the District's
health plan administrator.
2. 	Making statements that tend to interfere with the right of the Association
to represent its members in all employment relations matters by attempting to prevent the
Association from directly inquiring about healthcare benefits from the District's health plan
administrator.
17

TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten ( 10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices to employees are customarily placed,
copies of the Notice attached as an Appendix hereto, signed by an authorized agent of the
employer. Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to insure that this Notice is not reduced in size, defaced,
altered or covered by any 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, or the General
Counsel's designee. The District 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 the Association.
It is further Ordered that the proposed decision in Case No. SA-CE-2140-E is hereby
AFFIRMED IN PART AND REVERSED IN PART.
Chairman Duncan and Member Neima joined in this Decision.
18

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. SA-CE-2140-E, Hilmar Unified Teachers
Association v. Hilmar Unified School District, in which all parties had the right to participate,
it has been found that the Hilmar Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.S(a) and (b). The District
violated the EERA when its agent David Miller informed the president of Hilmar Unified
Teachers Association (Association), Joyce Mitchell, that he did not want her to directly contact
the District health benefits administrator for information relating to health benefit plans that
were then under negotiation.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1. 	Making statements that tend to interfere with the right of employees to form,
join and participate in the activities of an employee organization of their own choosing for the
purpose of representation on all matters of employer-employee relations by attempting to
prevent the Association from directly inquiring about healthcare benefits from the District's
health plan administrator.
2. 	Making statements that tend to interfere with the right of the Association to
represent its members in all employment relations matters by attempting to prevent the
Association from directly inquiring about healthcare benefits from the District's health plan
administrator.
Dated: 	HILMAR UNIFIED SCHOOL DISTRICT
By: ---------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

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. SA-CE-2140-E, Hilmar Unified Teachers
Association v. Hilmar Unified School District, in which all parties had the right to participate,
it has been found that the Hilmar Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.5(a) and (b). The District
violated the EERA when its agent David Miller informed the president of Hilmar Unified
Teachers Association (Association), Joyce Mitchell, that he did not want her to directly contact
the District health benefits administrator for information relating to health benefit plans that
were then under negotiation.

_ As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:

1, Making statements that tend to interfere with the right of employees to form,
join and participate in the activities of an employee organization of their own choosing for the
purpose of representation on all matters of employer-employee relations by attempting to
prevent the Association from directly inquiring about healthcare benefits from the District’s
health plan administrator.

2. Making statements that tend to interfere with the right of the Association to
represent its members in all employment relations matters by attempting to prevent the
Association from directly inquiring about healthcare benefits from the District’s health plan
administrator.

Dated: HILMAR UNIFIED SCHOOL DISTRICT

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.

OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
HILMAR UNIFIED TEACHERS ASSOCIATION,
Charging Party,
V.
HILMAR UNIFIED SCHOOL DISTRICT,
Res ondent.
UNFAIR PRACTICE
CASE NO. SA-CE-2140-E
PROPOSED DECISION
(1/14/04)
Appearances: California Teachers Association by Ballinger Kemp, Attorney, for Hilmar
Unified Teachers Association; Atkinson, Andelson, Loya, Rudd and Romo by Marleen Sacks,
Attorney, for Hilmar Unified School District.
Before Fred D'Orazio, Administrative Law Judge.
PROCEDURAL HISTORY
The Hilmar Unified Teachers Association (HUTA) initiated this action on December 4,
2002, by filing an unfair practice charge against the Hilmar Unified School District (District).
The general counsel of the Public Employment Relations Board (PERB or Board) issued a
complaint on January 10, 2003.
The complaint contains three allegations of unlawful conduct by the District during the
statutory impasse procedure. First, the complaint alleges that the District's superintendent
unlawfully told a HUT A representative that he would cancel an upcoming mediation session
unless HUT A agreed not to conduct an informational meeting with teachers regarding the
status of negotiations. Second, the complaint alleges that the District's superintendent
unlawfully told the HUTA president not to contact the District's health insurance administrator
directly for information related to health benefits, and to make all such contacts through the
District. Third, the complaint alleges that the District unlawfully bypassed HUTA and

with bargaining unit employees regarding health benefits then under
negotiation, and followed with a unilateral implementation of health benefit plans prior to
union ratification of a tentative agreement covering such plans. It is alleged that these actions
violated the Educational Employment Relations Act (BERA or Act) section 3543.5(a), (b) and
(e).1
The District answered the complaint on January 17, 2003, generally denying all
allegations and asserting a number of affirmative defenses. Denials and defenses will be
addressed below, as necessary.
A settlement conference was conducted by a PERB agent on February 11, 2003, but the
matter was not resolved. The undersigned conducted a formal hearing in Sacramento on
August 21, 2003. With the receipt of the final brief on October 20, 2003, the case was
submitted for decision.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code. In relevant part, section 3543.5 states:
It is unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
( e) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3548).
2

OF FACT
Jurisdiction
The District is a public school employer as defined in section 3540.l(k) of the EERA.
HUTA is an employee organization as defined in section 3540.l(d). At all relevant times,
HUTA was the exclusive representative, as defined in section 3540.1 (d), of an appropriate unit
of the District's certificated employees. At the time of the events in question here, the parties
were participating in the statutory impasse procedure.
The June 5 Mediation Session
Beginning in February 2002, HUTA and the District began contract negotiations and
quickly reached a deadlock.2 In late March, PERB certified the parties were at impasse and a
mediation session was held on May 1. However, the parties did not reach agreement.
Sometime after the first mediation session, District Superintendent David Miller and
California Teachers Association field representative Rolf Tallberg discussed dates for
additional sessions. 	One possible date was June 5. Miller testified that he informed Tallberg
that June 5 was a problem for two reasons. First, it was the dayof the middle school
graduation ceremony, and the high school graduation ceremony would follow the next day,
June 6. Miller typically is busy on graduation days with duties related to these events, and the
time he had available for mediation would be limited. Although Miller is the superintendent,
he also is a member of the District's bargaining team. 	Second, Miller testified, he informed
Tallberg that he "really didn't want concerted picketing, or marching around, or people in front
of the District office when we have parents or grandparents, and the people. coming in for
2 Unless otherwise noted, all dates refer to 2002.
3

3 Miller was concerned about disruption because the middle and high schools are
located next to the District office.
Miller and Tallberg agreed to conduct the mediation session in the morning and
Tallberg said there would be no concerted action. At the time, Tallberg was aware of no
planned activity. The parties then set June 5 as the next mediation date. Miller further
testified that if Tallberg had indicated HUTA would picket the mediation session, he (Miller)
would have picked another day.
Sometime before June 5, HUTA distributed a flyer that stated: "Very Important! All
staff members join the Hilmar Teachers United for Settlement in front of the District Office
Wed. June 5 [at] 7:30- 7:59 a.m. and 3:15 - 3:45 p.m. Join the teachers as we stand together
in support of reaching an agreement at negotiations." The purpose of the flyer, Tallberg
testified, was to give teachers the opportunity to meet so that HUTA could distribute
information about the status of negotiations to its members. The mediator had imposed no gag
rule on the negotiations.
Miller saw the flyer in the teachers' lounge and interpreted it as evidence that HUTA
would conduct some form of concerted activity in connection with the mediation session.
Miller was concerned that such activity would disrupt the graduation ceremony, even though
the middle school ceremony was scheduled for 7:00 p.m. On June 4, Miller contacted District
negotiator and counsel Chesley Quaide to inform him of the prior conversation with Tallberg.
According to Quaide, Miller said that Tallberg earlier had agreed "that they wouldn't be
picketing," and he asked Quaide to look into the matter. Quaide also testified that Miner was
3 HUTA had organized some activity around the first mediation session, and there is a
dispute in the record about the specific conduct and whether it was disruptive. It is
unnecessary to resolve that dispute in this proceeding.
4
v

to go forward with mediation on June 5 ifhe had assurances that there would be no
picketing. Two relevant conversations followed.
In a conversation on or about June 4, Tallberg testified, Quaide informed him that "the
June 5th date would be acceptable to the District, provided that there was no concerted activity
that would take place around the mediation session." This is essentially the directive Miller
had given to Quaide earlier, according to Quaide's testimony. Tallberg responded that he was
aware ofno concerted activity planned for the next day, so he agreed with Quaide's condition.
Tallberg testified that he agreed there would be no concerted activity the next day because he
knew of no plans to conduct such activity. The flyer described above had announced only that
RUTA would distribute information about the negotiations. During the conversation, Tallberg
explained to Quaide that the teachers are 'just going to meet in front of the school and find out
what's going on, and go to class. And they're going to meet afterward to find out what
happened, and go home." Quaide and Tallberg debated whether the District's insistence that
RUTA not picket or engage in other concerted activity in front of the District office on June 5
was an unfair practice, and they agreed to disagree.
Tallberg had another conversation with Miller the same day. He said he could tell that
Miller was upset by the tone of his voice, and he (Miller) reiterated his concern that the
graduation ceremony would be disrupted, despite the fact that HUT A had scheduled the
afternoon meeting for 3:45 and the graduation ceremony was set for 7:00 p.m. After the
conversation, Tallberg contacted HUTA President Katey Clark and described the District's
concerns. Tallberg testified: "I advised [HUT A] that, given the situation and given the desire
for the Association to move forward with the mediation, that the teachers not meet in the
afternoon on June 5th."
5

mediation session on June 5 lasted from 9:00 a.m. to approximately 11 :30 a.m.
The teachers met at the District office prior to the session and information about the statusof
negotiations was distributed. Also on June 5, Clark distributed the following memo to HUTA
members.
As you are aware, we had planned to meet this afternoon in
support of our bargaining team. Prior to setting our mediation,
Dr. Miller told the Association that he did not want any activities
to take place which might impact the graduation this evening. He
stated that if any such activities took place, the District would not
meet. He apparently feels that if we meet outside the District
offices this afternoon, that will cause a disruption.
In an effort to keep the mediation process moving, we agreed not
to hold any organizing activities this afternoon. However, we
urge every one to show their support for the bargaining team
individually and let them know you are behind them.
In accord with Tallberg's advice, the teachers did not meet in the afternoon to receive
information about the morning mediation session.
Meetings with the Self Insured Schools of California
During the 2002 negotiations, the subject of health benefits was on the table and the
District had offered HUTA new plan options. Because the District also was offering the same
options to its classified employees, Miller scheduled an informational meeting for members of
the classified staff and a representative of the Self Insured Schools of California (SISC), the
District's health insurance administrator. The classified employees of the District are not
represented by an exclusive representative.
The District did not schedule an informational meeting for certificated employees
represented by HUT A. Instead, Miller invited newly elected HUTA President Joyce Mitchell
and other HUTA representatives to the classified meeting as a "courtesy." He told Mitchell
that HUT A representatives would be required to hold their questions to the end of the meeting,
6

they would be permitted to ask any questions at that time. Miller wanted the classified
employees to have the opportunity to ask questions about the health plans without interference.
He testified that classified employees are sometimes overwhelmed by certificated employees,
and he wanted to avoid that during the meeting.
It is not clear that any HUT A representatives attended the meeting with the classified
employees, but if they did no questions were asked. Instead, HUTA scheduled its own meetin
with SISC representative John Stenerson. Prior to the meeting, Miller called Mitchell to his
office and told her that Stenerson had complained of "numerous" telephone calls that he had
received from Mitchell and possibly other HUTA representatives. According to Miller,
Stenerson complained that he was "being put in the middle between the administration and the
Association, and he was being asked questions that were primarily negotiation-related
questions." For that reason, Miller continued, he informed Mitchell that "I really would
appreciate it if you would work through the District concerning questions you have on the
health plan. If they're negotiated questions, we can do it in negotiations. If they're questio
about the health plan, we need to contact AnnaMarie Bettencourt, who is our Health Plan
Specialist." Mitchell responded that Miller was interfering with her right to contact SISC to
secure information about the health plans.
g
ns
Meanwhile, HUTA decided to make its meeting with Stenerson a joint District-RUTA
meeting and invited Miller to attend. According to Mitchell, when she invited Miller he
responded "[w]hat did I tell you?" Mitchell testified that Miller was "very harsh and
intimidating. Fatherly, like an angry father."
Mitchell disputed Miller's testimony that she made numerous telephone calls to
Stenerson that prompted complaints. Mitchell testified that she called Stenerson four or five
times in 2002 without incident. She said, however, that these calls came after her conversation
7

Miller. She said she did not call Stenerson even once prior to the time Miller told her to
contact the District rather than Stenerson for information about the health plans. Other HUT A
representatives may have contacted Stenerson earlier, but neither the identity of the callers nor
the number of calls are established in the record.
As more fully explained below, I credit Mitchell's testimony on this point. Suffice it to
say at this juncture that Mitchell credibly testified she had not contacted Stenerson asof the
time of her conversation with Miller, and Stenerson did not testify at the hearing. Therefore,
Miller's testimony regarding what Stenerson told him is hearsay.
HUTA inquiries to SISC were related to the ongoing negotiations. As Tallberg
testified, the District and HUTA were negotiating a significant change in the health benefit
program, and it is HUTA's duty to make sure that members are informed of what the changes
are and what the impact might be.
The Tentative Agreement
By the end of August, mediation had been unsuccessful and the parties were engaged in
factfinding. 	The subject of health benefits remained on the table. In the past, the District had
offered only one plan, but in these negotiations the District offered two plans and agreed to pay
the $72.00 per month co-payment that was previously imposed on employees. The two plans
were selected from three plans offered by SISC. In other words, SISC offered three plans and
the parties were to agree on two of those. The parties eventually reached tentative agreement
on two of the three plans, but other outstanding issues precluded a complete agreement.
After the tentative agreement, HUTA decided to put the health benefits issue to a vote
of employees before agreement on the entire contract. To that end, HUTA devised a two-part
ballot asking employees to decide (1) whether they wanted to separate the tentative agreement
on health benefits from the main negotiations, and (2) which of the two options they preferred.
8

to Mitchell, HUT A felt uncomfortable selecting the plans; if the members did not
agree with the selections, she reasoned, they would communicate their disagreement to the
union negotiators by the way they voted.
On September 12, 2002, before employees voted on the health benefits issue, Miller
sent out the following memo.
As you are probably aware, the leadership ofH.U.T.A. has
approved the removal of the $72.00 per month x 10 that each
certificated employee has been contributing to our Health Plan
since September 2000 (this brings the insurance cap to
$8,296.20). The District will pick up this cost beginning with
everyone's October paycheck.
Also, the leadership has informed me that they have selected PB
Option 1-B and PB Option 2-C as the two plans for you to choose
from. The two choices are included with this letter. Please stop
by the District Office to inform Anna Marie Bettencourt and/or
Mary Martins before September 30 which Plan you have selected.
They will also answer questions that you might have.
Because of accounting requirements, the District needed to begin implementation of the plans
in September if the teachers were to receive the benefit of the eliminated copayment for the
month of October. Therefore, Miller felt some urgency to distribute the memo.
Upon receiving the memo, some of the teachers became concerned about their health
benefits, and these concerns were communicated to Miller and Mitchell. The particular
concerns are not relevant here. Suffice it to say that some teachers were not happy with the
options.
Miller's memo was in accord with the parties' intent to begin immediate
implementation of the health plan tentative agreement. Quaide drafted the tentative agreement
at the September 5 factfinding meeting. He testified that, during a one-on-one meeting with
RUTA negotiator Jim Schlotz, the two men agreed to "take preliminary steps" to implement
the health plan tentative agreement and "hold off on final action till we got word of
9

Quaide continued, "because this was costing the unit members seventy-two
dollars a month, we thought all parties had an interest in getting this in place as soon as
possible." Quaide then met with Miller and communicated his agreement with Schlotz to him.
Miller corroborated Quaide's testimony. He testified that he "was a hundred per cent
certain, at that point, that everyone was agreeable, because I would not have proceeded with
that ifthere had been a problem because I do understand the need for collective bargaining and
the final sign-off on the part of the Association membership." There was no benefit to the
District in preliminary implementation of the plan.
Mitchell testified that she was aware of the tentative agreement, but she had no
knowledge of the discussion between Quaide and Schlotz regarding implementation. She
testified that she had a discussion with Schlotz regarding health benefit options after he came
out of the meeting with Quaide, but there is no mention in her testimony that she and Scholtz
discussed implementation. Mitchell also testified that, after Miller's September 12 memo, she
contacted Tallberg and Schlotz to inquire if HUTA had agreed to implement the health plans.
She said they informed her that the tentative agreement had to be ratified prior to
implementation.
Tallberg's testimony about implementation is similarly limited. Asked ifhe was
present during the conversation between Schlotz and Quaide during which implementation was
discussed, Tallberg said, "I don't recall that." Schlotz did not testify at the hearing.
Based on the foregoing testimony, I find that Schlotz and Quaide entered into a verbal
agreement to take preliminary steps to implement the tentative agreement covering the health
benefit plans, but that final implementation would not occur until after the ratification. It was
expected that the vote would take place quickly so that the plans could be implemented, thus
relieving employees of the October co-payment. Quaide convincingly testified with absolute
10

that the agreement to implement took place and that he communicated it to Miller
shortly thereafter. Miller also testified with certainty that the agreement had been reached
during negotiations, thus corroborating Quaide's testimony.
The testimony ofHUTA witnesses, in contrast, was riot persuasive. Neither Mitchell
nor Tallberg were able to offer concrete testimony that rebutted that given by Quaide and
Miller. Schlotz was not called to testify and thus he was unable to dispute Quaide's version of
the one-on-one meeting. Tallberg could not recall being present during the discussion between
Quaide and Schlotz. And Mitchell's testimony that Scholtz told her the tentative agreement
must be ratified prior to implementation is hearsay.
Moreover, I find it unlikely that the District would have taken preliminary steps to
implement health benefits without an agreement with HUTA to do so. It would be highly
unusual for the District to carve out one subject for implementation prior to ratification or
impasse. Quaide and Miller are experienced negotiators and it appears they were aware that
such conduct would almost certainly draw an unfair practice charge. And there was no benefit
to the District in taking preliminary steps to implement the health benefits. Only the teachers
stood to gain from implementation as soon as possible.
Meanwhile, after speaking with several teachers about their concerns, Mitchell on or
about September 16 informed Miller by e-mail that the tentative agreement had not been
ratified. Miller immediately stopped implementation.
As of September 27, Miller had received no formal notification that teachers had
ratified the tentative agreement on health benefits, although he had heard informally that a vote
had taken place. He sent Mitchell a memo which stated in relevant part:
The purpose of this memorandum is to inquire as to whether this
Tentative Agreement has been put to a ratification vote by the
unit, and if so, what were the results of this vote? It has been
11

three weeks since this Tentative Agreement was signed off,
and the District has not heard any reports of any subsequent
ratification vote.
In closing, Miller asked that Mitchell inform him by 4:00 p.m. of the results of the ratification
vote.
Mitchell responded late in the afternoon of September 27 that the teachers had ratified
the tentative agreement, adopting the original health plan and one additional plan. The tentative
agreement had been ratified on September 24, and it was eventually implemented. The parties
never reached agreement on an overall contract and the District imposed a contract on
certificated employees at the end of the impasse procedure.
ISSUES
1. 	Did statements by Superintendent Miller that the District would participate in
the June 5 mediation session provided RUTA agreed to engage in no concerted activity that
day tend to interfere with protected rights under BERA?
2. 	Did statements by Superintendent Miller that HUT A President Mitchell not
contact the District's health insurance administrator directly tend to interfere with protected
rights under BERA?
3. 	Did Superintendent Miller bypass RUTA in communicating with employees
regarding health benefits and/or unilaterally implement changes in health benefit plans, in
violation of its duty to participate in the impasse procedure under BERA?
CONCLUSIONS OF LAW
Statements Regarding the June 5 Mediation Session and Contacting SISC Directly
Two of the allegations set forth in the complaint assert that comments by a District
representative were unlawful under the BERA. They include Miller's statements to Tallberg
regarding concerted activity at the District office during the June 5 mediation session, and
12

statement to Mitchell that she should not contact the District's health insurance
administrator directly. Thus, resolution of these allegations depends on whether the particular
speech by the District's superintendent was unlawful.
The Board has long held that an employer is entitled to express its views on
employment-related matters over which it has legitimate concerns. To decide whether
employer speech is unlawful, the Board established the following test.
... The Board finds that an employer's speech which contains a
threat of reprisal or force or promise of benefit will be perceived
as a means of violating the Act and will, therefore, lose its
protection and constitute strong evidence of conduct which is
prohibited by [the Act]. [Rio Hondo Community College District
(1980) PERB Decision No. 128, p. 20 (Rio Hondo); fn. omitted.]
Several subsequent cases have expanded on and clarified the general rule set forthin Rio
Hondo. 	For example, whether an employer's speech is unlawful is determinedby applying an
objective rather than a subjective standard. (California State University (California State.
Employees Association. SEIU Local 1000) (1989) PERB Decision No. 777-H, adopting
proposed decision of administrative law judge at 12 PERC Para. 19063, pp. 292-294.) The
charging party must show that the employer's communications would tend to coerceor
interfere with a reasonable employee in the exercise of protected rights, and the fact that
employees may interpret statements, which are otherwise protected, as coercive does not
necessarily render those statements unlawful. (Regents of the University of California (1983)
PERB Decision No. 366-H, pp. 15-16, fn. 10.) And statements by an employer are viewed in
their overall context to determine if they have a coercive meaning. 	(Los Angeles Unified
School District (1988) PERB Decision No. 659.)
Miller cited two reasons for his concern about conducting a mediation sessionon
June 5. He first said he is typically busy during days of graduation ceremonies and his time is
13

Granted, it is often difficult for busy negotiators to mutually agree on dates for
mediation, and the assertion that duties associated with conducting graduation ceremonies
might render a date unacceptable does not violated the BERA. But Miller went beyond his
duties as superintendent in discussing June 5 as an acceptable date. As Miller conceded, he
also told Tallberg that he didn't "really want concerted picketing, or marching around, or
people in front of the District office when we have parents or grandparents, and the people
coming in for graduation." And Miller further testified that if Tallberg had indicated HUTA
would picket the mediation session, he (Miller) would have insisted on a day other than June 5.
Quaide communicated the same information to Tallberg on or about June 4 when he said that
June 5 would be an acceptable date provided there was no concerted activities on that date.
The District put HUTA in a difficult position. A reasonable interpretation of Miller's
and Quaide's comments is that ifHUTA wanted the negotiations to proceed on June 5, it
would have to forego its right to engage in informational picketing or its right to conduct
informational meetings with teachers at the District office. Otherwise, the mediation session
would be postponed to a later date.
It is well established that conduct such as non-disruptive, informational picketing is
protected conduct under the BERA. (See e.g. San Marcos Unified School District (2003)
PERB Decision No. 1508, at p. 27.) In addition, the District has a duty to participate in the
mediation process under the BERA in good faith. (See e.g., Moreno Valley Unified School
District (1982) PERB Decision No. 206, p. 5.) 	It follows that conditioning participation in a
mediation session on waiver of a statutory right is unlawful under the BERA. The District may
not threaten to interfere with or delay the statutory impasse procedure based on a concern that
employees might exercise their right to participate in lawful concerted activities organized by
HUTA, even if the District ultimately does not act on the threat. (Rio Hondo Community
14

District (1983) PERB Decision No. 292, pp. 12-13 [district's resolution threatening to
withdraw certain statutory rights in response to anticipated one-day "Day of Dignity" strike
found unlawful, even though threat not ultimately carried out].) Thus, while the District has no
duty to agree to a particular date for mediation, it may not condition its participation on waiver
of a statutory right.
Indeed, this is what occurred here. Tallberg and Quaide disagreed about whether the
District could lawfully insist on no picketing or informational meetings on June 5. Tallberg
asserted that such conduct was an unfair practice under EERA and the parties agreed to
disagree. However, given HUTA's desire to move forward with the negotiations, Tallberg
understandably advised HUTA not to meet in the afternoon of June 5. It is worth repeating
that if Tallberg had indicated HUT A would picket the mediation session, Miller testified he
would have insisted on a day other than June 5, and Quaide reiterated the same position to
Tallberg during a discussion on June 4.
The District argues in its brief that "negotiating over concerted activities is permitted
by law, as it falls within the scope of permissive bargaining." In support of its argument, the
District points to Modesto City Schools (1983) PERB Decision No. 291 (Modesto), where the
Board held that a school district did not commit an unfair practice during negotiations by
insisting on a no-strike clause while resisting a binding arbitration provision. Indeed, Quaide
testified that during his conversation with Tallberg he took the position that Miller's comments
were merely a matter for negotiations. In the circumstances presented here, I disagree.
Conditioning participation in a statutorily required mediation session on waiver of the union's
right to picket or engage in other forms of lawful concerted conduct may not be excused
merely as a bargaining proposal.
15

is true, as a general rule, that a mere proposal that a statutory right be waived may not
necessarily violate the Act; the Act is violated only when a party insists on such a proposal to
impasse. (Modesto at pp. 29-30; See also Chula Vista City School District (1990) PERB
Decision No. 834.) These cases, however, involved proposals for waiver of statutory rights in
the context of a negotiation setting, where the parties are free to trade proposals and rights for
other concessions in an attempt to reach a mutually agreeable settlement. In contrast, Miller's
comments to Tallberg were not made in the context of true negotiations and they cannot
realistically be construed as a mere proposal. The parties were seeking dates for mediation.
Miller conceded in his testimony that he told Tallberg he did not want teachers picketing or
marching around the District office on June 5, and ifHUTA insisted on engaging in such
activity he would have selected a different date for the mediation. Quaide's comments to
Tallberg were similar. Essentially, the District adopted a take it or leave it stance: agree not to
picket or engage in similar activities or the District will not meet on June 5. Indeed, the
District concedes in its brief that Miller "advised Tallberg that the District would be willing to
meet with HUTA on June 5, 2002, if HUT A agreed that it would not demonstrate or picket."
(Emphasis added.) This is hardly the kind of proposal the Board found lawful in Modesto.
In the interest of moving the negotiations forward, Tallberg advised Clark not to
conduct the afternoon meeting with teachers. Key benefits such as salary and new health plans
were on the table and HUT A was interested in scheduling the mediation with the goal of
moving the negotiations to conclusion. Rather than challenge the comments at that time,
HUTA agreed to not engage in the activity in the interest of trying to conclude the negotiations
as rapidly as possible. In practical terms, Miller's statements caused HUTA to forfeit its right
to engage in an informational meeting or picketing related to the negotiations, clearly protected
conduct under the Act.
16

on the foregoing, I conclude that Miller's comments carried the threat that the
District would not participate in mediation on June 5 unless RUTA agreed not to picket or
conduct informational meetings at the District office. Given the content of the statements and
the context in which they were made, the comments objectively may be viewed as the kind of
comments that tend to interfere with protected rights.
Miller's statements that Mitchell not contact SISC directly likewise tend to interfere
with protected conduct. As Miller conceded in his testimony, he told Mitchell that he would
prefer she not contact SISC directly and to contact Bettencourt with questions about the health
plans. Later, when Mitchell invited Miller to the meeting with SISC, Miller responded "what
did I tell you?" As the District concedes in its brief, "Dr. Miller was understandably perturbed,
as she had directly contacted SISC when he had just asked her not to." For the following
reasons, I find that Miller's statements directly interfered with Mitchell's protected right to
contact a third party about an employment related matter.
In Oakdale Union Elementary School District (1998) PERB Decision No. 1246
(Oakdale) PERB found protected a school employee's complaint to a district's workers'
compensation insurance carrier. The Board found it significant that the complaint was made
by the union president, it related to the administration of a collective bargaining agreement,
and it was an extension of the employee's earlier attempts to resolve safety issues with the
district. Thus, the Board found the employee's conduct was protected under section 3543 as a
form of participation in the activities of an employee organization on a matter of employer
employee relations. (Oakdale at p. 18.)
The circumstances presented here are similar to those in Oakdale. At the time of the
events in question, Mitchell was president of HUT A, the parties were engaged in negotiations
about health benefits, the negotiations involved new plans for employees and Mitchell had
17

for the health plan administrator. As Tallberg testified, RUTA needed relevant
information about the plans to bargain intelligently; and RUTA had a duty to make sure that
members were informed of the changes in the new plans under consideration. (See e.g.,
Stockton Unified School District (1980) PERB Decision No. 	143, pp. 14-15 (Stockton)
[information regarding wage-benefit programs relevant to weigh value of proposals].) Thus,
Mitchell had a protected right to contact SISC for information about the health benefit plans.
While the District itself did not refuse to provide relevant information to RUTA regarding
health plans, Miller's comments tended interfere with RUTA's protected right to acquire such
information from a third party.
It is worth noting that Miller's rationale for his comments does not withstand scrutiny,
for it is not established in the record that Stenerson ever complained to him. Stenerson did not
testify at hearing and thus Miller's testimony that Stenerson complained to him about
Mitchell's prior contacts is hearsay upon which no finding can be based. (PERB Regulation
. 32176.4) 	In contrast, Mitchell credibly testified that, at the time Miller asked her not to contact
SISC, she had not called Stenerson even once. While it is true that Mitchell contacted
Stenerson several times, these contacts occurred after the conversation with Miller that is the
subject of this complaint, and there is no evidence that they were improper. Thus, the record
does not support a finding that there was any basis for Miller's comments.
Based on the foregoing, I conclude that Miller's comments that Mitchell not contact
SISC directly, viewed objectively, are the type of statements that tend to interfere with a
reasonable employee in the exercise of protected rights.
4 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
18

RUTA and Unilateral Implementation of Health Benefits
The complaint also alleges that the District bypassed HUT A and dealt directly with
employees, and followed with a unilateral change in health benefits. For the following
reasons, these allegations find no support in the record.
An employer may not communicate directly with employees to undermine or derogate
the representative's exclusive authority to represent unit members. (Muroc Unified School
District (1978) PERB Decision No. 80.) Similarly, the employer violates the duty to bargain in
good faith when it bypasses the exclusive representative to negotiate directly with employees
over matters within the scope of representation. (Walnut Valley Unified School District
(1981) PERB Decision No. 160.) However, once a policy has been established by lawful
means, an employer has the right to take necessary actions, including consulting with
employees, to implement the policy. (Ibid.) To establish that an employer has unlawfully
bypassed the union, the charging party must demonstrate that the employer dealt directly with
its employees (1) to create a new policy of general application, or (2) to obtain a waiver or
modification of existing policies applicable to those employees. (Ibid.) Under these standards
it cannot be concluded that the District unlawfully bypassed HUTA.
As I have found earlier, Quaide and Schlotz reached a verbal agreement that permitted
the District to take preliminary steps to implement the health benefit plans that were tentatively
agreed to by the parties. Under the agreement, final implementation was to occur upon
ratification by the teachers. Therefore, Miller's September 12 memo cannot realistically be
construed as an attempt to bypass HUT A and negotiate directly with bargaining unit
employees. The memo was in accord with the tentative agreement, contained no inaccurate
information and clearly stated that the benefit plans contained therein were the product of
19

Moreover, the preliminary steps outlined in the memo actually benefited
teachers; there was no benefit to the District.
I conclude, therefore, that the memo did not undermine HUTA's authority as exclusive
representative, it was not an attempt to negotiate directly with employees and it did not itself
create a new policy or modify an existing policy. It may be true that Miller's memo caused
some concern among certain teachers, but the concern arguably was due more to HUTA's
delay in conducting the ratification vote than by any unlawful conduct on the part of the
District. As noted earlier, the parties reached a tentative agreement on the health benefit plans
on or about September 5, and the agreement envisioned early implementation so that teachers
would not be responsible for the October co-payment. Miller followed quickly with the memo
on September 12. For reasons not contained in the record, HUTA did not conduct the
ratification vote until September 24 and did not inform the District of the results of the vote
until September 27.
Nor has the District implemented a unilateral change in health benefits. A unilateral
change is considered a violation of the duty to bargain if certain criteria are met. The charging
party must show that the employer implemented a change in policy concerning a matter within
the scope of representation, and the change was implemented before the employer notified the
exclusive representative and gave it an opportunity to request negotiations. (Walnut Valley
Unified School District, supra, PERB Decision No. 160; Grant Joint Union High School
District (1982) PERB Decision No. 196 (Grant).)
In this case, no unilateral change was implemented. It is true that Miller on
September 12 distributed a memo to teachers announcing the first steps in implementation of
the health plans reflected in the tentative agreement. Teachers complained to Mitchell and she,
in tum, complained to Miller. Upon receiving Mitchell's objection by e-mail on September 16,
20

stopped implementation of the health benefit plans. Under these circumstances, I find
that Miller's memo made no change in a negotiable subject and thus did not violate the duty to
bargain under EERA. Absent an actual unilateral change in a negotiable subject, no violation
of the duty to bargain may be found. 	(Grant at p. 10.)
It is worth repeating that Miller acted in accord with the tentative agreement. However,
even if Miller erroneously began implementation, he stopped the process upon receiving
Mitchell's e-mail. An employer who immediately corrects an erroneous act does not violate
the duty to bargain. (See Moreno Valley at p. 11; California State University (1990) PERB
Decision No. 799-H, adopting proposed decision of administrative law judge at pp. 26-27.)
REMEDY
Section 3514.S(c) provides in relevant part that
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.
It has been found that a District representative made statements to RUTA
representatives that, viewed objectively, tend to interfere with the exercise of protected
conduct under the EERA. Specifically, through the comments of Miller and Quaide, Tallberg
was informed that Miller did not want RUTA to picket or engage in other concerted activities
on the date a mediation session was to occur, and the District would participate in the
mediation session provided there was no such activity. Also, Miller informed Mitchell that she
should not contact the District's health insurance administrator directly regarding health
benefit plans then under negotiation by the parties. By this conduct, the District has interfered
with the right of employees to be represented by RUTA in matters of employer-employee
relations, in violation of section 3543.S(a). By the same conduct, the District has interfered
21

HUTA's right to represent its members in their employment related matters, in violation
of section 3543.5(b ). It is, therefore, appropriate to direct the District to cease and desist from
such activity in the future.
It is also appropriate to direct the District to post a notice incorporating the terms of the
order. Posting of such a notice, signed by an authorized agent of the District, will provide
employees with notice that the District has acted in an unlawful manner, is being required to
cease and desist from such activity, and will comply with the order. It effectuates the purposes
of the EERA that employees be informed of the resolution of this controversy and the
District's readiness to comply with the ordered remedy. (See Placerville Union School District
(1978) PERB Decision No. 69.)
All other allegations in the complaint are hereby dismissed
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law and the entire record in this
proceeding, it is found that the Hilmar Unified School District (District) violated the
Educational Employment Relations Act (Act), Government Code section 3543.5(a) and (b).
Pursuant to section 3541.5(c) of the Government Code, it is hereby ordered that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Making statements that tend to interfere with the right of employees to
form, join and participate in the activities of an employee organization of their own choosing
for the purpose of representation on all matters of employer-employee relations.
2. 	Making statements that tend to interfere with the right of the Hilmar
Unified Teachers Association to represent its members in all employment relations matters.
22

TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within ten (10) days of the service of a final decision in this matter, post
at all work locations where notices to certificated employees customarily are posted, copies of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of the District, indicating that the District will comply with the terms of this Order. Such
posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered with
any other material.
2. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the Sacramento Regional Director of the Public
Employment Relations Board in accord with the director's instructions.
All other allegations against District in the complaint are hereby dismissed.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
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 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
23
x

document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
24
Administrative Law Judge