Inglewood Teachers Assn. v. Public Employment Relations Bd.

• Decision Date: 29 January 1991
• Docket Number: No. B048803,B048803
• Court: California Court of Appeals Court of Appeals
• Parties: , 65 Ed. Law Rep. 819 INGLEWOOD TEACHERS ASSOCIATION, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent. INGLEWOOD UNIFIED SCHOOL DISTRICT, Real Party in Interest.

Page 228

278 Cal.Rptr. 228

227 Cal.App.3d 767, 65 Ed. Law Rep. 819

INGLEWOOD TEACHERS ASSOCIATION, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent.

INGLEWOOD UNIFIED SCHOOL DISTRICT, Real Party in Interest.

No. B048803.

Court of Appeal, Second District, Division 7, California.

Jan. 29, 1991.

Schwartz, Steinsapir, Dohrmann & Sommers and Margo A. Feinberg, for petitioner.

John W. Spittler, Gen. Counsel, and Jennifer Chambers, Regional Atty., for respondent.

Grant & Duncan, Artis C. Grant, Jr., Donna Lopez, Los Angeles, and Tamara Smith Stevenson, for real party in interest.

FRED WOODS, Associate Justice.

Petitioner and appellant Inglewood Teachers Association ("Association") challenges a decision of respondent, the California Public Employment Relations Board ("PERB"). The issue presented by this appeal is the appropriate legal standard for imputing the conduct of a supervisory or managerial employee to a public school employer, in this case, the real party in interest, the Inglewood Unified School District ("District"). We affirm PERB's decision.

FACTUAL AND PROCEDURAL SYNOPSIS

1. Statement of The Facts

Lawrence Freeman is the principal of Inglewood High School, one of the schools in the District. On or about February 3, 1987, Eunice Curry, an active member of the Association, and a teacher employed by the District, had a conversation with Freeman, in which he told her that he was going to "get [his] attorney," and that her "group" was "going to be in trouble." The conversation took place on the front steps of the school after the lunch break, and students were present. According to Curry's testimony, Freeman was angry because he believed that Curry had told the union president that Freeman was threatening substitute teachers.

Freeman thereafter hired an attorney, Lynn Pineda, to draft a complaint which was filed in superior court on March 9, 1987. Freeman did not discuss the lawsuit with either the superintendent or the governing board of the District prior to filing the complaint, nor at any time afterward. Neither the governing board nor the superintendent either requested or authorized Freeman to file the lawsuit.

The caption to the complaint referred to Freeman by his name, and included no reference to his status as a principal. The first paragraph of the complaint identified Freeman as "an administrator, assigned as principal of Inglewood High School...." The complaint, as originally filed, sought damages for libel and slander, intentional infliction of emotional distress, fraud, interference with contract, and conspiracy.

Freeman named as defendants nine District teachers who were actively involved in the Association: Eunice Curry, Robert Dillen, Vernon McKnight, Martha Morales, John Nollan, Gene Ray, Delores Ridgeway, Shirley Mims, and Carolyn Galloway. In addition, Freeman named as defendants Alma Davis and Jacques Bernier, Association The complaint sought damages for statements and acts which are protected by the Educational Employment Relations Act ("EERA," i.e., Gov.Code, ^{1 1} 3540 et seq.), including: the distribution of a circular regarding threats to teachers, filing of PERB charges, sending a letter to the school board regarding unsafe working conditions at Inglewood High School and collectively speaking out about the working conditions under Freeman's administration.

staff persons, and the Association itself, as well as the California Teachers Association.

Jacques Bernier, who thought that he was being sued by the District, was the first of the defendants to be served with the complaint, on March 13, 1987. Bernier showed the complaint to the Association's legal staff, who believed the suit to have probably emanated from Freeman, as opposed to the District.

Although Mr. Pineda (Freeman's attorney) did not request the District to serve copies of the lawsuit on the teachers named as defendants, his process server delivered copies of the summons and complaint for distribution to the teachers to Ethel Murphy, an administrative secretary in personnel. The process server did not indicate who the plaintiff was in the lawsuit.

Murphy accepted the copies, prepared envelopes for all of the teachers named in the lawsuit, and stamped "personnel services," in the upper left hand corner, in case the document could not be delivered due to a teacher's absence. Murphy placed copies of the lawsuit into the inter-District mail for eight of the teachers. The ninth teacher, Robert Dillen, was out on industrial leave, so Murphy sent him a copy of the complaint to his home address. Murphy accomplished these tasks without being directed to do so by any other employee or agent of the District. It was Murphy's normal routine to accept and distribute such documents.

In fact, the District policy regarding acceptance of legal documents for service had been breached by Murphy. Rex Fortune, the superintendent, had earlier directed his staff that no such documents were to be accepted by them on behalf of District employees.

The teachers named as defendants retrieved the complaint from their school mail boxes on or about March 18, 1987, except for Dillen, who received a copy in his mail box at home on the same date. Teachers received copies of the complaint through no other means. Upon examining the complaint, at least two teachers, including Curry, believed the lawsuit to have emanated personally from Freeman, while other teachers believed that the District must have authorized it. None of the teachers called the District to ascertain whether it had authorized the lawsuit. However, Dillen discussed the lawsuit with two members of the governing board of the District, Ernest Shaw and Rosemary Benjamin.

2. Statement of The Case

On February 4, 1987, the Association filed an unfair practice charge alleging that the District violated section 3543.5 by discriminating and retaliating against employees, because of their exercise of protected activities. The Association filed a first amended unfair practice charge on March 5, 1987, adding new allegations of discrimination against employees. A second amended unfair practice charge was filed on April 14, 1987, adding that the District discriminated against Association members by its agent's action in filing a lawsuit against them. PERB's general counsel issued a complaint on portions of the unfair practice charge on August 3, 1987, and on the same day, dismissed other allegations in the second amended unfair practice charge.

On December 14, 1987, the Association moved to amend the complaint to add a new theory of retaliation. The Administrative Law Judge ("ALJ") granted the motion. On February 10, 1988, pursuant to a settlement agreement reached by the parties, portions of the complaint were withdrawn by the Association.

The PERB complaint, in its final version, contained the following allegations: (1) the District, through its principal, Lawrence Freeman, retaliated against Association members by filing a civil lawsuit naming them as defendants in superior court on March 9, 1987, in violation of EERA section 3543.5, subdivisions (a) and (b); (2) the District unilaterally changed a policy regarding the dismissal of unit members from extra-duty coaching assignments; (3) the District unilaterally changed the method of paying teachers for extra-duty work assignments; (4) the District, through Lawrence Freeman, unlawfully threatened unit member Eunice Curry because of her union activity, in violation of EERA section 3543.5, subdivision (a) and derivatively, section 3543.5, subdivision (b); and, (5) the District unlawfully dismissed two employees from their extra-duty coaching assignments.

The District filed an answer to the PERB complaint, in which it denied that it had violated EERA and that Freeman was its agent.

An evidentiary hearing was held before Administrative Law Judge Manuel Melgoza on December 14-16, 1987, and February 8-10, 1988. The ALJ issued his proposed decision on January 25, 1989, finding that the District, through Freeman, had violated EERA section 3543.5, subdivisions (a) and (b) by filing a civil lawsuit against the Association, and some of its members. As a remedy for the latter violation, the ALJ ordered the District to pay petitioner's legal costs in defending the lawsuit.

The ALJ also found that the District violated the EERA by dismissing the coaches from their extra-duty assignment and by threatening a teacher with future retaliation for her exercise of union activities. Finally, the ALJ found that the District violated EERA by unilaterally changing the past practice for removal of teachers from extra-duty assignments. The District's exceptions to the proposed decision were filed on or about March 8, 1989.

On February 15, 1990, the PERB issued PERB decision number 792, generally affirming the decision of the ALJ, except insofar as he determined that Freeman acted as the District's agent when he filed the civil lawsuit.

Petitioner filed a timely writ petition. ²

DISCUSSION

The Association contends that PERB did not apply the appropriate standard in determining when a public school employer is responsible for the acts of its supervisors under the EERA and that PERB's factual findings are not supported by substantial evidence.

I. The Definition of Agency Used by PERB Is Not Clearly Erroneous

Under the EERA, it is an unlawful labor practice to "[i]mpose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter." (§ 3543.5, subd. (a).) In the instant case, PERB was called upon to decide whether a school district should be liable for the threats and reprisals of a principal in suing employees for engaging in protected activities. PERB concluded that Lawrence Freeman, the principal of Inglewood High School, was not acting as the agent of the District...