San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (PERB 2744E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PHILIP CRAWFORD AND DENNIS MEAKIN,
Charging Parties,
v.
SAN JOSE/EVERGREEN FEDERATION OF
TEACHERS, AFT LOCAL 6157, AND
AMERICAN FEDERATION OF TEACHERS,
AFL-CIO,
Respondents.
Case No. SF-CO-839-E
PERB Decision No. 2744
August 31, 2020
Appearances: Philip J. Crawford, on his own behalf and on behalf of Dennis Meakin;
Law Offices of Robert J. Bezemek by Patricia Lim, Attorney, for San Jose/Evergreen
Federation of Teachers, AFT Local 6157; Michael Piccinelli, Attorney, for American
Federation of Teachers, AFL-CIO.
Before Banks, Shiners, and Krantz, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB) on an appeal by Philip Crawford and Dennis Meakin, who ask us to reverse
the decision of PERB’s Office of the General Counsel (OGC) to dismiss their first
amended unfair practice charge. In that charge, Crawford and Meakin alleged that
San Jose/Evergreen Federation of Teachers, AFT Local 6157 (Local 6157 or Union)
and American Federation of Teachers, AFL-CIO (AFT) violated the Educational
Employment Relations Act (EERA) by taking adverse actions against them in

2
retaliation for their protected activities and thereby interfering with their statutory
rights.1
Local 6157, an affiliate of AFT, represents part-time and full-time faculty at the
San Jose/Evergreen Community College District. Both full-time and part-time faculty
members elect representatives to sit on the Union’s ten-member Executive Board
(board). This case arises from a severe schism between board representatives who
strongly supported part-time faculty interests and the remainder of the board. In the
wake of the Union’s May 2018 board member election and the board’s subsequent
decision to appoint Meakin as an interim member, the board was equally divided (five
to five) on most issues.2 One faction, which strongly supported part-time faculty
interests, consisted of Crawford, Meakin, Alex Lopez, Andres Quintero, and Union Vice
President Fabio Gonzalez. The other faction consisted of Jessica Breheny, Nasreen
Rahim, Elaine Ortiz-Kristich, Union President Paul Fong, and Union Treasurer Linda
Ferrell. Solely for ease of reference, we refer to these groups as “Crawford’s faction”
and “Fong’s faction.”
On January 2, 2019, all five members of Crawford’s faction filed the instant
charge against Local 6157. On September 30, 2019, OGC issued a warning letter. In
November 2019, Crawford and Meakin filed the amended charge, including only
themselves as charging parties and dropping the remaining three members of
1 EERA is codified at Government Code section 3540 et seq.
2 In July 2018, Crawford recommended Meakin, his brother-in-law, to fill a
Local 6157 Executive Board vacancy. The Executive Board voted to appoint Meakin
as an interim board member. Meakin served the remainder of a term ending in June
2019.

3
Crawford’s faction. Whereas the initial charge had named only Local 6157 as a
respondent, the amended charge named both Local 6157 and AFT as respondents.
OGC dismissed the amended charge on February 10, 2020. Crawford and
Meakin timely appealed, while Local 6157 and AFT urge us to affirm OGC’s
determination. Having reviewed the parties’ arguments and all underlying pleadings,
we affirm OGC’s dismissal.
FACTUAL BACKGROUND3
I. 	Discord erupts within Local 6157, including competing discrimination claims.
In late 2017, Local 6157 searched for a new Executive Director. The Union
ultimately chose Jennifer Bills over numerous other applicants, including Crawford. Bills
started work in January 2018.
On July 19, 2018, Crawford and Bills traded written allegations of discrimination
based on tensions that had been brewing for many weeks. In an e-mail to Bills and the
full board, Crawford noted that Bills had accused him—and other men on the board—of
gender bias and “a tendency to smother the voice of our female colleagues.” Crawford,
in turn, accused Bills of engaging in “a very rude attempt” to “interrogate (in full force
cross-examination style) our Latino male VP.” Crawford’s e-mail also accused Bills of
3 In the present procedural posture, we assume that a charging party’s factual
allegations are true, and we view them in the light most favorable to the charging
party. (Cabrillo Community College District (2015) PERB Decision No. 2453, p. 8
(Cabrillo I); Cabrillo Community College District (2019) PERB Decision No. 2622, p. 4
(Cabrillo II).) We do not rely on a respondent’s responses if they explicitly or implicitly
create a factual conflict with a charging party’s factual allegations, even if the
respondent’s contrary responses are stated more persuasively or appear as though
they may be backed up by more supporting evidence, when compared to the charging
party’s allegations. (Cabrillo I, supra, PERB Decision No. 2453, p. 8; Salinas Valley
Memorial Healthcare System (2012) PERB Decision No. 2298-M, p. 13.)

4
being “inclined to verbally assault Latino males among our constituency.” Just hours
after Bills received Crawford’s e-mail, she e-mailed Fong and Ferrell to complain about
“pervasive gender-based discrimination and harassment” by Crawford and Gonzalez
against Bills and other women.
Fong and Ferrell consulted with Local 6157’s legal counsel, seeking guidance for
responding to Bills’ employment discrimination complaint. The Union’s counsel
subsequently wrote all ten board members to inform them that Local 6157 had a duty to
investigate the complaint. Based on this advice, on or about August 13, 2018, Fong and
Ferrell on behalf of Local 6157 hired an attorney, Susan Hatmaker, to investigate Bills’
complaint.
At a retreat in late August 2018, members of Crawford’s faction alleged that Fong
and Ferrell had improperly provided a raise to Bills’ predecessor, Barbara Hanfling,
without evaluating her or obtaining board approval. Crawford’s faction voted in favor of
initiating a criminal complaint alleging that Fong and Ferrell had thereby embezzled
union funds, but Crawford’s faction did not muster majority support to do so.
On September 7, 2018, Crawford published a newsletter to hundreds of part-time
faculty members. In the newsletter, Crawford repeated his claims about the allegedly
improper raise. Crawford’s newsletter also accused Fong and Ferrell of improperly
spending union dues on an investigation, without board approval.
Fong defended himself in an e-mailed letter to the Union’s membership. In that
letter, Fong stated that the Union’s normal practice would have been to refrain from
notifying its membership of Bills’ complaint at least until the investigator issued a report,

5
but in response to Crawford’s allegations, he felt compelled to notify members that Bills’
complaint was a gender-based complaint against Crawford and Gonzalez.
In September 2018, Ferrell filed a complaint with the District, claiming members
of Crawford’s faction retaliated against her for acting to investigate Bills’ gender-based
harassment claims, and in so doing created a hostile work environment in her
employment at the District. The District responded to the complaint by explaining that it
would not investigate allegations relating solely to internal union affairs, and that it
would therefore investigate the accused faculty members solely to the extent they had
allegedly acted in their capacity as District employees. The District closed the
investigation without taking any action against the accused faculty members.
Also in September 2018, Quintero submitted to Fong a letter complaining that
Bills had mistreated him and another faculty member because they were Hispanic and
male. On November 30, 2018, the board voted to investigate Quintero’s complaint and
to expand the sexual harassment investigation to include new parties and new claims.
In January 2019, each member of Crawford’s faction joined in filing the instant charge
as well as in filing a lawsuit in Santa Clara County Superior Court against each member
of Fong’s faction. The plaintiffs alleged that the board’s November 2018 meeting lacked
a quorum. As relief for this alleged violation, the plaintiffs sought to nullify the actions
the board took at that meeting, including the board’s actions vis-à-vis investigating the
various discrimination complaints. The superior court ultimately dismissed the lawsuit.
II. 	Hatmaker issues her report, and the District restricts and reprimands Crawford.
On February 18, 2019, Hatmaker issued a thirteen-page report regarding Bills’
complaint (the Hatmaker Report). Hatmaker concluded that Bills raised valid complaints

6
of gender bias, while Crawford, in contrast, complained of anti-Latino discrimination with
the goal of intimidating Bills into keeping quiet about gender bias.4 Thereafter, Fong and
Ferrell allegedly: (1) “caused the [Hatmaker] report to be distributed to faculty and
administrative mailboxes”; (2) facilitated Chancellor Byron Breland’s receipt of the
report; and (3) at a meeting with Breland, demanded that the District terminate
Crawford and Meakin.
On March 11, 2019, Breland issued a letter to Crawford (the Breland letter). The
letter recounted that near the end of the preceding week, the District had received an
“unsolicited copy” of the Hatmaker Report “from an anonymous source.” The letter
acknowledged the District was aware of internal union discussions regarding whether
the report was confidential and averred that the District had no interest in intruding on
those discussions. The letter also stated that “because the District has no interest in
intruding on the Union’s processes, we conclude that we must accept—and will not
second-guess—the findings of the Union Investigation.” In a footnote, the letter allowed
that the District was “aware that there is a dispute within the Union as to whether the
investigation was properly authorized. However, unless and until the District receives
official notification that the findings of the investigation have been rejected by the Union,
we do not see a basis to ignore the findings.”
After recounting these preliminary considerations, the Breland letter explained
that “it is not within the District’s purview to address the hostile environment that
4 Crawford claims that Hatmaker was wrong in most respects. In the current
procedural posture, we presume only those aspects of Hatmaker’s findings that neither
explicitly nor implicitly conflict with the amended charge. (Cabrillo I, supra, PERB
Decision No. 2453, p. 8.)

7
apparently exists within the Union,” but “the Union’s Investigation Report also reveals
facts indicating that your conduct may have caused, or has the potential to cause, a
hostile workplace environment—which is within the District’s purview and duty to
address.” The Breland letter also criticized Crawford for using District e-mail and
potentially other District resources for prohibited purposes, including “to engage in
gender-based harassment against Jennifer Bills, the Executive Director of the Union.”5
The Breland letter imposed several restrictions on Crawford, all of which, the
District noted, were non-disciplinary and would not appear in Crawford’s personnel file.
First, the District directed Crawford to refrain from using District e-mail except to
communicate with his department chair, dean, colleagues, and students on issues
pertaining to classes or departmental matters. The letter warned Crawford that were he
to violate this directive, the District might terminate Crawford’s access to District e-mail.
More generally, the District directed Crawford to refrain from using District resources,
including copy machines and paper, to further his “private litigation.”
Finally, the Breland letter returned to Ferrell’s fall 2018 harassment complaint,
even though the District had previously determined to take no action on Ferrell’s
complaint, and notwithstanding the fact that Hatmaker did not investigate or comment
on Ferrell’s allegations. The Breland letter stated: “As you also know, the District
determined it did not have jurisdiction to investigate the complaint because the alleged
conduct related to union matters. However, this does not absolve the District of its
responsibility to stop and prevent a hostile workplace environment.” Based on this
5 Hatmaker’s report in no way indicates that she had considered District policies
on use of employer-sponsored e-mail or made any findings that Crawford violated
such policies.

8
reasoning, the letter directed Crawford to restrict his communications and interactions
with Ferrell as follows:
“You are instructed not to use any District network, platform
or device to communicate with Linda Ferrel [sic] on any
subject matter. This includes sending messages from or to a
District email address, and calling from or to any District
telephone number;
“While you are on District property, you are to stay at least
50 feet away from Linda Ferrel,[sic] her office and classes,
unless you are engaged in concerted activity during a time
and place generally authorized for concerted activity. If this
would require you to leave a work-related meeting or activity,
you are required to do so;
“If you find yourself in a work-related meeting or activity with
Ms. Ferrel [sic], and are able to keep the requisite distance,
you will not speak to or interrupt her, or otherwise behave in
a manner that would reasonably be seen as bullying or
intimidating; and
“You are instructed not to attempt to execute service of
process on Ms. Ferrell, or any other district employee, while
that employee is at work, or otherwise interrupt an employee
at work in furtherance of your legal claims.
“Please note that, as these measures indicate, the District
will not regulate your attendance or conduct at union
meetings. The District also will not regulate or intrude on
your use of personal email addresses, telephone numbers or
social media platforms to engage in concerted activity. It will
be up to the Union to determine how it wishes to remediate
the apparent hostile environment within the Union.” (Bullet
points omitted.)
The amended charge alleges that the Breland letter restricted Crawford's “ability
to engage in future concerted activity,” and that the District did so “without any
independent investigation” beyond that done by Hatmaker. Crawford further alleges that

9
the District imposed these restrictions “with no due process and without a single item of
evidence, nor any allegation suggesting that Ferrell had ever experienced any behavior
from Crawford that might justify a concern for her safety.”
Following a May 2019 vote by the Union’s membership, Crawford and Gonzalez
remained on the board, but the other three board members in Crawford’s faction were
replaced.
On October 1, 2019, the District’s Acting President, Roland Montemayor, issued
a letter of reprimand to Crawford. The reprimand began by recounting the restrictions on
e-mail, communications, and interactions that the District had imposed in March 2019,
characterizing them as having been needed to address misuse of District e-mail and to
“prevent [Crawford’s] harassment of Linda Ferrell during Union-related communications
from impacting her work environment.” The reprimand next stated that after Crawford
received the Breland letter, he twice violated its restrictions, as described below.
First, the reprimand recounted that on September 20, 2019, Crawford attended a
one-hour meeting as part of administering an adult education program established
under the California Education Code. The meeting location—a conference room—was
adjacent to Ferrell’s office, and Crawford thereby came within 50 feet of Ferrell. Ferrell
called the police when she observed Crawford was present. The reprimand asserted
that Crawford should have either changed the meeting location or refrained from
participating in-person. The reprimand stated that by attending in-person, Crawford had
adversely affected Ferrell’s work environment and disrupted District operations.
Second, the reprimand recounted that on September 16, 2019, Crawford sent an
e-mail from his District account for a purpose unrelated to his faculty duties. That e-mail,

10
which the District attached to the reprimand, showed Crawford had responded to an
e-mail another faculty member sent from his District e-mail account, accusing Crawford
of improperly seeking to “install himself” on the Academic Senate. The reprimand
thereby appears to have afforded greater leeway to faculty members working to elect a
different faculty member competing against Crawford for the Academic Senate position.
III. 	AFT holds a hearing, issues a report, and censures Crawford.
On January 18, 2019, Fong’s faction asked AFT to investigate, pursuant to the
AFT Constitution, the schism within Local 6157’s board. According to the request, the
board was deadlocked 5-5 on most issues, which prevented the Union from making
decisions needed to carry out its representational functions. Crawford’s faction
responded by requesting that AFT instead provide training.
On May 22, 2019, the AFT Executive Council authorized an investigation and
appointed a panel of three AFT vice presidents to chair the Investigation Committee.
The committee invited both factions to present witnesses and arguments. Twenty-one
witnesses provided oral testimony and three more provided written statements. In July
2019, the AFT Executive Council approved the committee’s report, finding that
Crawford failed to act according to AFT values of equity and nondiscrimination.6 The
report rejected allegations that others had committed malfeasance, though it found
numerous areas in which the Union needed to adopt new policies or tighten
compliance with various norms.
The Executive Council directed that:
6 As described ante, in the current procedural posture, we presume only those
findings that neither explicitly nor implicitly conflict with the amended charge. (Cabrillo
I, supra, PERB Decision No. 2453, p. 8.)

11
“1. The board adopt guidelines and suggestions about the
proper distribution of union materials and the proper use of
employer-maintained email addresses and lists.
“2. The board attend and participate in trainings provided by
the AFT on proper parliamentary procedure.
“3. The local adopt a conflict of interest policy. The AFT will
provide sample polices for use by the local.
“4. The local adopt a code of conduct and
reporting/investigation policy applicable to elected leaders,
members and staff of the local, covering all legally
protected classes in the state of California. The AFT will
provide sample codes of conduct and reporting policies for
use by the local.
“5. The local amend its constitution or bylaws such that the
president has the explicit power to vote on any matter
before the board, and such that the executive board
consists of an odd number of members.
“6. The local amend its constitution or bylaws such that one
of the duties of a member besides the president of the
executive board is to be responsible for the recording of the
minutes of every meeting.
“7. The outgoing and incoming board members engage in a
restorative justice process that allows for reconciliation
between board members, builds trust and understanding
among board members, and creates an environment
whereby Philip Crawford and Fabio Gonzalez acknowledge
and accept responsibility for the harm they have caused.
The AFT will provide assistance and models for this
process.
“8. Philip Crawford is formally censured by the AFT
Executive Council. A copy of the below formal censure shall
be delivered to Mr. Crawford, current members of the
executive board and incoming members on the executive
board, and emailed to the personal email address of every
member of the local.

12
“9. Philip Crawford shall only attend executive board
meetings via telephonic conference until his present term
expires; Mr. Crawford shall still be able to vote on matters
via telephone or by email, as provided in Section 5.10.8 of
the local's bylaws.
“The committee shall retain jurisdiction for six months after
the date of this order to hold any necessary additional
hearings and recommend any necessary additional actions
to the AFT Executive Council.”
Crawford asserts that AFT ignored exculpatory evidence, allowed telephonic
testimony, and “severely restricted” Crawford in unspecified ways when he objected to
hearsay evidence. Crawford also alleges that Fong and Ferrell distributed the
Executive Council’s report and that AFT approved, ratified, or sanctioned their conduct
by declaring the report to be non-confidential. Crawford lastly asserts that a newly
elected board member, Loraine Levy, cited the report in attempting to have Crawford
banned from Academic Senate committees.
IV. 	Faculty members seek to undo the District’s decision to hire Meakin. The District
terminates him and later rehires him to a lesser position.
On November 14, 2018, faculty members Marciela Martinez, Padma Manian, and
Javier Chapa filed with the District a grievance in which they contended that Meakin did
not meet the minimum qualifications for his position and that the District had improperly
failed to advertise the position internally before hiring Meakin. By letter dated March 1,
2019, the District terminated Meakin effective April 1, 2019. The termination letter
explains that Meakin was an at-will employee, the District had recently discovered a
flaw in the recruitment process through which he had been hired, and Meakin was free
to apply for future positions. Meakin promptly reapplied for the position, but he alleges

13
that the District responded by eliminating the position he had held and replacing it with
a lesser position.
By e-mail dated April 5, 2019, Martinez, Manian, and Chapa wrote to the
District’s Trustees to assert, inter alia, that Crawford engaged in nepotism and other
improprieties designed to favor Meakin over internal candidates. The e-mail alleged, for
instance, that Crawford: (1) used his position on District committees to revise the
required and desired job qualifications, and (2) convinced the Academic Senate to grant
Meakin an equivalency for his missing degree. Moreover, at an April 2019 Academic
Senate meeting, another faculty member, Charles Heimler, criticized Meakin. Although
Manian became a negotiator for Local 6157 after April 5, 2019, the amended charge
does not allege that she was a union officer before that time. The amended charge does
not allege that Martinez, Chapa, or Heimler served in any official union capacity at any
relevant time.
Meakin filed a grievance against the District regarding his termination.
Local 6157 assisted Meakin in pursuing this grievance. Meakin claims that Manian, in
her new role as the union’s chief bargaining officer, advocated in internal closed session
board meetings that Local 6157 should not assist Meakin because he is unqualified. He
further alleges that she did so in retaliation for his past votes on the board to deny her
the paid position of grievance officer. However, the amended charge does not allege
that Manian’s view prevailed, nor does it allege any deficiencies in the Union’s efforts
representing him in the termination grievance.
In September 2019, the District rehired Meakin, though at a 20% reduced
position and with loss of rights he asserts he should have been afforded.

14
DISCUSSION
In resolving a dismissal appeal, we review OGC’s decision de novo. (Lake
Elsinore Unified School District (2018) PERB Decision No. 2548, p. 6, fn. 5 (Lake
Elsinore); City of San Jose (2013) PERB Decision No. 2341-M, p. 47.) At this stage of
the case, a charging party’s burden “is not to produce evidence, but merely to allege
facts that, if proven true in a subsequent hearing, would state a prima facie violation.”
(County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) Furthermore,
“where a material factual dispute turns on the respondent’s state of mind,” we consider
that motive is generally within the respondent’s own knowledge and that there is little
opportunity for pre-hearing discovery. We therefore impose on a charging party a
relatively low burden to allege facts tending to show the requisite state of mind. (Ibid.)
Mere legal conclusions, however, are insufficient to state a prima facie case.
(Lake Elsinore, supra, PERB Decision No. 2548, p. 18.) Moreover, although we do not
resolve conflicting factual allegations, it is appropriate to dismiss an alleged violation
without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to
defeat the claim. (Cabrillo I, supra, PERB Decision No. 2453, p. 9.)
I. 	Statute of Limitations Analysis
The amended charge, which Crawford and Meakin filed in November 2019,
added multiple new allegations occurring more than six months earlier. When a
charging party amends an unfair practice charge and thereby adds new allegations,
the statute of limitations for the newly-added allegations is generally the six months
prior to the date the charging party filed the amended charge, unless the new

15
allegations relate back to the allegations in the initial charge, or another recognized
exception applies. (County of Santa Barbara (2012) PERB Decision No. 2279-M,
p. 10.) Newly-added factual allegations in an amended charge relate back to those in
the initial charge if they clarify or provide further detail regarding the facts initially
alleged or assert facts that are a logical and sequential manifestation of the same
course of conduct initially alleged. (Monterey Peninsula Unified School District (2014)
PERB Decision No. 2381, pp. 37-39.) The relation back doctrine also allows a
charging party to add new legal theories, provided that such new theories rely on
allegations included in the initial charge and/or allegations that satisfy the relation
back standard. (Id. at pp. 37-38.)
Two of the new allegations in the amended charge relate back to allegations in
the initial charge. First, the amended charge contains new allegations regarding the
content of the February 2019 Hatmaker Report. That report was a logical and
sequential manifestation of the same course of conduct alleged in the initial charge—
Fong and Ferrell’s decision to hire Hatmaker to investigate Bills’ complaint.
Second, the amended charge alleges that Manian, Martinez, and Chapa acted
against Meakin by sending an April 2019 e-mail to the District’s Trustees. That
allegation is plausibly a logical and sequential manifestation of the course of conduct
the same three actors allegedly began the prior fall when they filed a grievance claiming
the District had improperly hired Meakin.
However, we reach a different conclusion with respect to several new
allegations that appear in the following cursory phrases included in the amended
charge: (1) Fong and Ferrell allegedly “caused the [Hatmaker] report to be distributed to

16
faculty and administrative mailboxes”; and (2) “Ferrell and Fong facilitated [Breland’s]
receipt of the [Hatmaker] report and then met with [Breland] demanding that Crawford
and [Meakin] be terminated.”
It is a bridge too far to suggest that, when Fong and Ferrell hired Hatmaker to
investigate Bills’ complaint (as alleged in the initial charge), the logical and sequential
manifestation of that course of conduct would be that they would leak the eventual
report and use that leak to urge the District to fire Crawford. The new allegations are
on their face vastly different, more serious, and hardly a logical next step arising from
the earlier decision to hire an attorney to investigate an internal union complaint.
These new allegations therefore are untimely.
Nor has Meakin asserted facts suggesting that Fong and Ferrell allegedly
urging the District to fire Meakin logically and sequentially flowed from his initial
allegation that three faculty members filed a grievance regarding his hiring. The earlier
conduct involves faculty acting in their capacity as District employees to raise fairness
concerns, while the later conduct involves Local 6157 officers potentially acting in their
official union capacities to urge his firing. Because the allegations involving Fong and
Ferrell’s actions toward Meakin do not relate back to the initial charge, they are
untimely.
II. 	Prima Facie Case Analysis
In evaluating a discrimination or retaliation claim, PERB generally applies the
same test irrespective of whether the respondent is an employer or a union. (AFT
Part-Time Faculty United, Local 6286 (Peavy) (2011) PERB Decision No. 2194,
pp. 12-13.) In order to establish a prima facie case of retaliation, a charging party must

17
allege facts showing that: (1) one or more employees engaged in activity protected by
a labor relations statute that PERB enforces; (2) the respondent had knowledge of
such protected activity; (3) the respondent took adverse action against one or more
employees; and (4) the respondent took the adverse action “because of” the protected
activity, which PERB interprets to mean that the protected activity was a substantial or
motivating cause of the adverse action. (City and County of San Francisco (2020)
PERB Decision No. 2712-M, p. 15.) If the charging party establishes these factors,
certain fact patterns nonetheless allow a respondent to prove, by a preponderance of
the evidence, that it would have taken the same action even absent the protected
activity. (Id. at pp. 15-16, citing NLRB v. Transportation Management Corp. (1983)
462 U.S. 393, 395-402 (Transportation Management) and other authorities.)7
Additionally, in an unfair practice charge alleging that a union discriminated or
retaliated against protected activity, the charging party must allege facts showing that
the union’s conduct impacted the employer-employee relationship. (California State
Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S, pp. 27-28
[overruling prior precedent]; California State Employees Association (Hard, et al.)
(2002) PERB Decision No. 1479-S, pp. 13-17 (CSEA (Hard, et al.)), citing Service
7 In Transportation Management, supra, 462 U.S. at p. 403, the United States
Supreme Court approved the NLRB’s decision to adopt this framework and noted that
its origins lie in a First Amendment retaliation case, Mt. Healthy City School District
Board of Education v. Doyle (1977) 429 U.S. 274. This line of cases can provide
PERB with persuasive precedent. For instance, we find federal precedent persuasive
in explaining that “substantial” and “motivating,” as used in the fourth element of the
test, are interchangeable terms that do not have separate meanings. (Id. at p. 287.)

18
Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106
(Kimmett).)8
We look to agency principles to determine whether a respondent may be held
liable for alleged wrongdoing. A union, like an employer, is liable for the acts of those
bearing either actual or apparent authority to act on its behalf. (National Union of
Healthcare Workers (2012) PERB Decision No. 2249-M, p. 14.) Actual authority is that
which an organization intentionally confers upon the agent, or intentionally or
negligently allows the agent to believe himself or herself to possess. (Chula Vista
Elementary School District (2004) PERB Decision No. 1647, p. 7.) Apparent authority
may be found from manifestations by the principal that create a reasonable basis for
others to believe that the principal has authorized the alleged agent to perform the act
in question. (Ibid.) In general, a respondent' s high-ranking officials, particularly those
whose duties include employee or labor relations matters, are presumed to act and
speak on behalf of the respondent, meaning that the respondent is generally liable for
their conduct. (City of San Diego (2015) PERB Decision No. 2464-M, p. 23.) However,
there is no blanket rule that an elected union representative always acts as the union’s
agent. (Morgan Hill Unified School District (1986) PERB Decision No. 554a, p. 7.)
8 The Kimmett doctrine does not apply, however, to allegations that a union has
failed to establish or follow reasonable membership restrictions or disciplinary
procedures impacting membership. (California Association of Professional Scientists
(Rachlis) (2015) PERB Decision No. 2417-S, pp. 9-10; CSEA (Hard, et al.), supra,
PERB Decision No. 1479-S, pp. 14-17.)

19
Here, Crawford and Meakin have sufficiently alleged that they engaged in
protected activity and that Local 6157 and AFT knew of this protected activity.9
However, in their timely-filed allegations, neither Crawford nor Meakin have sufficiently
alleged facts that would, if proven, establish that an agent of Local 6157 or AFT took
any adverse, retaliatory action that impacted their employment relationships with the
District. We explain.
A. Crawford’s Allegations Against Local 6157
Several of Crawford’s timely-filed allegations assert conduct that arguably
impacted his employment relationship with the District. For the reasons discussed
below, we conclude that some of these allegations would not, if proven, show that the
alleged perpetrator acted on behalf of Local 6157, while other allegations that might
be attributable to the Union do not amount to adverse action in retaliation for protected
conduct.
Crawford first alleges that Local 6157 took a discriminatory adverse action in
August 2018, when Fong and Ferrell hired Hatmaker to investigate his conduct and
issue a report. There is no question that in doing so Fong and Ferrell acted on behalf
of the Union. It is also well-established that initiating an investigation of alleged
misconduct is an adverse action. (Service Employees International Union, Local 221
(Gutierrez) (2012) PERB Decision No. 2277-M, p. 9; California Union of Safety
9 While the Kimmett doctrine prevents a charging party from stating a prima
facie case unless a respondent’s conduct impacted the employer-employee
relationship, it does not negate the allegation that both Crawford’s faction and Fong’s
faction engaged in a wide array of protected activity while participating in internal
union affairs. Crawford and Meakin also engaged in protected activity by filing a
lawsuit seeking to enforce the Union’s bylaws and by pursuing the instant charge.

20
Employees (Coelho) (1994) PERB Decision No. 1032-S, p. 12.) And the resulting
report eventually impacted Crawford’s employment relationship with the District, as the
amended charge alleges that the report was an integral part of the chain of events
leading the District to restrict Crawford’s interactions with other faculty and later to
reprimand him for violating those restrictions.10
There are nonetheless sufficient undisputed facts to support OGC’s decision to
dismiss Crawford’s retaliation claim based upon Fong and Ferrell’s decision to hire
Hatmaker. In analogous cases in which a public employer receives a facially valid
discrimination complaint, our precedent prescribes the standards the employer must
follow in determining how to avoid retaliating against or interfering with protected
activities. (See, e.g., Trustees of the California State University (Northridge) (2019)
PERB Decision No. 2687-H, p. 5 [discussing standards regarding decision to
investigate] & fn. 6 [discussing limitations on manner of investigation]; Chula Vista
Elementary School District (2018) PERB Decision No. 2586, pp. 29-31 [explaining a
10 A union’s decision to investigate an internal discrimination complaint does not
normally impact a bargaining unit employee’s relationship with his or her employer.
Indeed, Crawford’s faction acknowledged as much in the superior court litigation,
explaining to the court in January 2019 that the plaintiffs need not file a PERB charge
because the factual allegations in their lawsuit had no impact on their employment
relationships. Two months after making that representation to the superior court,
circumstances changed when the District took adverse actions against Crawford and
Meakin, making the instant case an unusual one in which an internal union action
initially appears not to impact any employer-employee relationship but ultimately
appears to do so. The link between the Hatmaker Report and the Breland letter and
written reprimand represents a colorable allegation. Even though the Breland letter
largely addresses District concerns not mentioned in the Hatmaker Report—use of
District resources and protecting Ferrell from a potential hostile work environment—
Crawford plausibly alleges that the leaked Hatmaker Report influenced the District, as
shown by Breland’s references to the report.

21
public employer’s obligations in balancing need to investigate with need not to
interfere with the statutory rights of an accused wrongdoer]; California Virtual
Academies (2018) PERB Decision No. 2584, pp. 22-34 [where employer receives
complaint against employee who has engaged in protected activity, employer must
respond in same manner as it would absent such protected activity].) Here, Crawford
does not allege the type of facts we have found in other cases to establish that an
investigation was unlawful.
Virtually the only relevant fact Crawford alleges regarding the Union’s motive
relates to the timing of its decision to hire Hatmaker. While the Union did so before
Crawford engaged in protected activity by accusing Fong and Ferrell of approving an
unauthorized raise, voting to initiate a criminal complaint, e-mailing a newsletter to
other faculty, filing a superior court lawsuit, and filing the instant charge, the Union
hired Hatmaker one month after Crawford alleged that Bills discriminated against
Latino males. Even if EERA protected Crawford’s complaint, this proximate timing is
not sufficient to warrant a complaint (Metropolitan Water District of Southern California
(2009) PERB Decision No. 2066-M, p. 12), particularly given that Crawford does not
dispute the Union’s assertion that Fong and Ferrell hired Hatmaker based upon
reasonable legal advice that the Union must investigate Bills’ employment complaint.
Beyond the timing of the Union’s decision to hire Hatmaker, Crawford suggests that
Fong and Ferrell manifested a retaliatory motive by doing so without board approval.
But the amended charge fails to state facts which, if proven, would tend to show that
the absence of board approval was improper or otherwise evidenced an unlawful
motive. Because the board was on hiatus for the summer, a majority of the three

22
Local 6157 officers were authorized to hire Hatmaker without board approval. Fong
and Ferrell constituted a majority. Furthermore, the third officer, Gonzalez, was
recused given he was a subject of the underlying complaint.
Crawford further alleges that Ferrell’s fall 2018 complaint, accusing members of
Crawford’s faction of gender-based discrimination and harassment, contributed to the
Breland letter and the written reprimand. Crawford thus sufficiently alleged that Ferrell’s
complaint impacted his employment relationship with the District. However, Crawford
has not alleged facts sufficient to show that Ferrell was acting as an agent of
Local 6157. While Ferrell was a union official when she filed the discrimination
complaint, she filed it in her own name and in her capacity as a District employee. Nor
is there any timely allegation that the Union took action to authorize, condone, or ratify
the complaint Ferrell filed with her employer.11
According to Crawford, the Breland letter and reprimand also resulted, in part,
from two alleged events that we have found to fall outside the statute of limitations:
Fong and Ferrell’s alleged act in leaking the Hatmaker Report, and a meeting in which
Fong and Ferrell allegedly demanded that the District fire Crawford and Meakin.
Because Crawford failed to file a timely amended charge regarding these allegations,
11 This case well illustrates that in the sharp-elbowed world of internal union
politics, union officials or candidates may take a variety of actions that are not
necessarily imputed to the union. For instance, were Ferrell’s discrimination complaint
with the District seen as an act of Local 6157, the same could be true for any number
of actions that members of Crawford’s faction allegedly took, such as complaining of
anti-Latino discrimination, filing the superior court lawsuit, filing the instant charge, or
voting to file criminal embezzlement charges against Fong and Ferrell. While those
acts may arguably have been motivated by the other faction’s protected activity, none
were official acts of the Union that could give rise to a charge against the organization.

23
we do not consider whether they allege a prima facie case that the Union violated
EERA.
At the pleading stage, PERB will not penalize a charging party for failing to
assert a theory that may fit the allegations, and we instead must issue a complaint
based on any and all legal theories for which the alleged facts state a prima facie
case. (Hartnell Community College District (2015) PERB Decision No. 2452, p. 51,
fn. 20 (Hartnell).) Accordingly, we assess potential theories that charging parties did
not assert. For the reasons discussed below, we do not direct OGC to issue a
complaint under any such theories.
First, we have considered whether the facts state a prima facie case of
interference independent of retaliation. We find no prima facie case for many of the
same reasons set forth above, and because union officials lacking control over the
employment relationship do not have the same capacity as an employer’s agent to
discourage protected activity. (Oxnard Federation of Teachers (Collins) (2012)
PERB Decision No. 2266, adopting warning letter at p. 6; California Faculty
Association (Hale) (1988) PERB Decision No. 693-H, adopting warning letter at p. 5;
see also City of Oakland (2014) PERB Decision No. 2387-M, p. 25, fn. 5; Hartnell,
supra, PERB Decision No. 2452, p. 25.)
Second, we note that had Crawford named the District as a respondent, the
amended charge alleges facts that would have supported a prima facie case that the
Breland letter and the written reprimand interfered with Crawford’s exercise of
protected rights. (See Claremont Unified School District (2019) PERB Decision
No. 2654, p. 21 [letter prohibiting employee from using employer’s e-mail system to

24
communicate with other employees interfered with employee’s rights].) However, the
District is not a named respondent.
Third, we consider whether to direct OGC to issue a complaint alleging that
Local 6157 violated EERA section 3543.6, subdivision (a) by causing or attempting to
cause the District to violate EERA. There is split authority as to whether an employee
may bring such a charge or only an employer may do so. (See Santa Maria Joint
Union High School District Faculty Association (2015) PERB Decision No. 2445, p. 18,
fn. 19 [describing split authority] (Santa Maria).) This is not the appropriate case to
clarify Board precedent, as the parties have not briefed any issues pertaining to the
split of authority.12 We decline to order additional briefing to iron out these issues
because, as explained ante, Crawford and Meakin were untimely in alleging the only
Union conduct that arguably may have violated section 3543.6, subdivision (a).
For the foregoing reasons, we affirm OGC’s decision to dismiss Crawford’s
retaliation and derivative interference claims against Local 6157.
B. Crawford’s Allegations Against AFT
Crawford alleges that AFT violated EERA when it agreed to investigate the
schism within Local 6157, held a hearing, issued a report, made that report non-
confidential, censured Crawford, and ordered him to participate in board meetings
telephonically. As an initial matter, Crawford has failed to allege facts tending to show
12 As one example of the unsettled issues in this area, even if an employee may
bring a section 3543.6(a) claim, it is unclear whether the employer may or must be
joined as a party to allow for full relief, to apportion damages, and/or because
assessing a claim under section 3543.6(a) involves evaluating whether actual or
potential employer conduct would be lawful. (Santa Maria, supra, PERB Decision
No. 2445, p. 13.)

25
that AFT served as an agent of Local 6157 and has failed to address whether AFT
may be held liable even though it was not Crawford’s exclusive representative.13
Moreover, even were AFT a proper respondent, Crawford cannot state a prima
facie case because he complains of purely internal union matters. By censuring
Crawford and ordering him to attend board meetings telephonically, AFT did not
impact his employment relationship with the District. Nor did AFT fine him or impact
his membership, meaning these allegations do not fall into the narrow Kimmett
exception for allegations that a union has failed to establish or follow reasonable
internal procedures regarding disciplinary fines or membership restrictions. (See, e.g.,
Coalition of University Employees (Higgins) (2006) PERB Decision No. 1855-H,
adopting warning letter at pp. 2-3 [dismissing charge against union that removed its
elected president but issued no fine or membership suspension].)
Even setting aside these threshold obstacles to Crawford’s case, we find no
factual allegations suggesting that AFT failed to establish or follow reasonable
procedures. In this inquiry, our touchstone is fairness. (California Association of
Professional Scientists (Rachlis), supra, PERB Decision No. 2417-S, p. 10.) In order
13 While Crawford’s claims differ from those in which we have held a parent
labor organization to be an improper respondent, neither party has briefed whether
Crawford’s claims against AFT should fare differently, and we decline to resolve that
issue sua sponte. (See, e.g., California Teachers Association (Bussman) (2009) PERB
Decision No. 2047, p. 4; California Teachers Association and Oakland Education
Association (Welch) (2006) PERB Decision No. 1850, adopting dismissal letter at p. 2;
California Teachers Association (Torres) (2000) PERB Decision No. 1386, adopting
dismissal letter at p. 2; California Teachers Association (Abbot) (1988) PERB Decision
No. 665, p. 2; Police Officers Research Association of California and California
Association of Food and Drug Officials (Eckstein) (1987) PERB Decision No. 644-S,
p. 2; Fresno Teachers Association and Fresno Unified School District (1982) PERB
Decision No. 208, pp. 23-24.)

26
for internal union procedures to be fair, an accused union member must receive notice
of alleged wrongdoing and “rudimentary rights of defense” that provide “substantial
justice,” but “the refined and technical practices which have developed in the courts
cannot be imposed upon the deliberations of workingmen and the form of the
procedure is ordinarily immaterial if the accused is accorded a fair trial.” (Ibid., internal
quotations and citations omitted.) Indeed, even when a union unreasonably applies or
departs from its own rules, a charging party must show how the alleged unfairness
impacted the outcome. (Id. at p. 11.) Technical or minor imperfections are not
sufficient to show that a union denied a charging party substantial justice. (Id. at
pp. 11-14.)
Crawford alleges that AFT violated EERA by restricting him in unspecified ways
when he objected to hearsay evidence, allowing telephonic testimony, ignoring
unspecified exculpatory evidence, and failing to make its report confidential. These
allegations do not state a prima facie case that AFT’s conduct denied him substantial
justice. Indeed, to the contrary, there are sufficient undisputed allegations to conclude
that AFT’s procedures were substantially fair.
We therefore dismiss Crawford’s allegations against AFT.
C. Meakin’s Allegations
Rank-and-file bargaining unit members are not agents of a union. (San
Bernardino Public Employees Association (White, et al.) (2018) PERB Decision
No. 2572-M, partially adopting proposed decision at p. 28; Los Angeles Community
College District (1982) PERB Decision No. 252, p. 17.) Meakin does not allege facts
tending to show that Martinez, Manian, Chapa, or Heimler held a Local 6157 position

27
or otherwise acted as the Union’s agent when taking the actions Meakin alleges. For
this reason, Meakin does not allege facts sufficient to hold Local 6157 responsible for
their acts against him.14
The amended charge also does not allege facts showing that Local 6157
assisted Manian, Martinez, and Chapa in their grievance claiming that the District
followed an improper process in hiring Meakin and that Meakin did not possess
sufficient qualifications. In fact, there is no dispute that Meakin filed a grievance against
the District regarding his termination, and Local 6157 assisted him in pursuing this
grievance. While Meakin claims that Manian urged the Union to refrain from assisting
him, he does not allege that Manian’s view prevailed or that the Union breached its duty
of fair representation.
OGC thus was correct in its decision to dismiss Meakin’s allegations against
Local 6157.
ORDER
The amended unfair practice charge in Case No. SF-CO-839-E is DISMISSED
WITHOUT LEAVE TO AMEND.
Members Banks and Shiners joined in this Decision.
14 Furthermore, Meakin’s claim that Fong attempted to block him from
completing his term on the board—because he was no longer a District employee—
fails because it neither qualifies as timely under the relation back doctrine nor alleges
an impact on his employment relationship with the District.