Magnolia School District (PERB 0019E)

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
)
MAGNOLIA EDUCATORS ASSOCIATION,
Charging Party
and
MAGNOLIA SCHOOL DISTRICT,
Respondent
)
) Case No. LA-CE-31
EERB Decision No. 19
)
)
)
)
)
Appearances: Kenneth E. Ristau, Jr., Attorney (Gibson, Dunn and
Crutcher), for Magnolia School District; Paul Crost, Attorney
(Reich, Adell and Crost), for Magnolia Educators Association.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
This is an appeal to the Educational Employment Relations
Board (EERB) upon exceptions to the recommended decision of the
hearing officer filed by the Magnolia Educators Association
(Association). The hearing officer ordered the case dismissed on
the ground that the charging party failed to prove by a preponder-
ance of the evidence that the Magnolia School District (District)
refused to grant reasonable periods of released time for the
purpose of meeting and negotiating.
The parties submitted a summary of stipulated facts in lieu
of presenting evidence at a hearing. The stipulated facts indicate
that the District employs 211 certified teachers for approximately
4,500 students. The District recognized the Association as the
exclusive representative of a unit of certificated employees
pursuant to the Educational Employment Relations Act (EERA) and
18 Cal. Admin. Code Secs. 35028 through 35034 describe the
procedure for an appeal.
2Gov. Code Sec. 3540 et seq. All code references herein are
to the Government Code.
-1-

agreed to discuss contract proposals at an initial meeting on
May 21, 1976, at 3:00 p.m. At this meeting the Association
requested that the negotiating team be granted released time
during the instructional day for the purpose of negotiating. The
District refused this request. Six more negotiations meetings
were held between May 21, 1976, and July 1, 1976, all of which
were held at 4:00 p.m. or later at the request of the Association
and were attended by nine teachers. Five teachers attended
eight additional negotiating meetings held after July 1, 1976 at
the Association's request. These meetings commenced at 6:30 or
7:00 p.m., with the exceptions of the meetings of July 22, 1976,
and July 23, 1976, which commenced at 1:00 p.m. and 9:00 a.m.
respectively. At the last of the eight meetings, on September 8,
1976, the Association proposed that the next meeting be held on
September 21, 1976, at 9:00 a.m. As stated by the parties:
Representatives of the District agreed to hold
a meeting on September 21, but, because of a
District policy against scheduling such
meetings during teaching time, requested that
the meeting be scheduled at or after 3:00 p.m.
The Association requested that the District
grant not only release from work time but from
teaching time and that negotiations be con-
ducted during such time in general in the
future. The District declined and stated that
it would agree to release the committee for
negotiations from work time at the conclusion
of actual teaching time. The Association
thereupon declared an impasse and said con-
firmation would be sent to the EERB.
The representatives of the Association did not propose that the
meeting of September 21, 1976 be held at any hour other than 9:00
a.m. The Educational Employment Relations Board appointed a
mediator who met with the Association and the District at 3:00 p.m.
on September 20, 1976, the time requested by the Association. The
stipulated facts further indicate that:
Before concluding the meeting of September 20,
1976, the mediator inquired of the parties as
to when each of them would next be able to
meet. The Association stated that it wanted
-2-

to meet during the instructional day, i.e.,
during teaching time. The mediator announced
that he could not meet at 9:00 a.m., but that
he would have time later in the day. Pursuant
to the aforementioned District policy against
scheduling such meetings during teaching time,
the District requested that future meetings be
scheduled at any time after 3:00 p.m. so that
a minimum of 30 minutes of release time from
the minimum work day would be provided for the
five teachers negotiating with the District.
The mediator stated that he would be unable to
meet at 3:00 p.m. on the day in question due
to an election he was conducting at another
school district. The mediator then stated he
would telephone the representatives of the
Association and the District to arrange the
next meeting.
The mediator telephoned the District on
October 5, 1976, to suggest that the next
mediation session between the District and the
Association take place on October 13, 1976, at
10:00 a.m. The District agreed to meet on
this date, but asked that the meeting be held
at 3:00 p.m. so as not to conflict with the
aforementioned District policy against
scheduling such meetings during teaching time.
The mediator stated that he was scheduled to
be in Newport Beach on the evening of October 13,
1976, and that he would therefore have to
reschedule this proposed meeting.
If called to testify, representatives of the
Association would state that during the tele-
phone call with the Association on October 5,
1976, the mediator asserted that he did not
have sufficient afternoons available to continue
the mediation process. Witnesses for the
District would testify, if called, that other
than as to the day in question the mediator made
no such assertion to them as to his availability
nor did he make any statement about his ability
to continue the mediation process. The parties
hereto stipulate that neither the Association
nor the District made inquiry of the mediator or
the Mediation Service as to the availability of
other mediators to handle the mediation process
in afternoon or evening sessions. The parties
further stipulate that it is the policy of the
Mediation Service to provide mediators to meet
with parties at any time agreed by the parties,
-3-

morning, late afternoon or evening subject to
the availability of mediators. By this stipu-
lation the parties are not admitting that what
the mediator stated was true nor are they
stipulating that the Mediation Service could
not, through other mediators, staff the
mediation process for afternoons, evenings or
weekends.
On October 13, 1976, the EERB notified the
District that the services of the mediator
would be held in abeyance pending resolution
of the unfair practice charge filed by the
Association on October 8, 1976.
With regard to general District policies and procedures, the
parties stipulated that all classroom teachers are required to
remain at school at least one-half hour after classes have ended
for the day. Classes regularly end at 3:00 p.m. Any negotiating
session that commences at 3:00 p.m. on a regular school day
necessarily involves a minimum of one-half hour of released time.
The absence of a teacher from the classroom results in the assign-
ment of a paid substitute teacher, which detracts from the
educational program. The cost to the District of hiring a sub-
stitute teacher for one day is $35.00, but a substitute teacher
may be hired on a half-day basis during the afternoon. At times
the District administration requires teachers to attend certain
functions and provides substitutes in such cases. The District's
policy against scheduling negotiating sessions with teachers
during their teaching time does not preclude sessions during
working days with teachers who have completed their actual
classroom teaching for the day. The District adopted its 1976-1977
budget on August 2, 1976, including expenditures for all contract
provisions tentatively agreed to by. the District and the Association,
•
On the foregoing facts, we find that the District's restriction
of released time to the one-half hour of nonteaching time at the
end of the instructional day constitutes a per se violation of
Government Code Sections 3543.5(b) and 3543.l(c) because of the
rigidity and inflexibility of the District's policy. Section
3543.5(b) provides in pertinent part:
- 4 -

It shall be unlawful for a public school
employer to:...
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
and Section 3543.l(c) sets forth the right of an employee organi-
zation to released time:
(c) A reasonable number of representatives of
an exclusive representative shall have the
right to receive reasonable periods of
released time without loss of compensation
when meeting and negotiating and for the
processing of grievances.
"Reasonable released time" means, at least, that the District
has exhibited an open attitude in its consideration of the amount
of released time to be allowed so that the amount is appropriate
to the circumstances of the negotiations. The District may have
to readjust its allotment of released time based upon the reason-
able needs of the District, the number of hours spent in negotiations,
the number of employees on the employee organization's negotiating
team, the progress of the negotiations and other relevant factors.
A district's policy does not provide for reasonable periods of
released time if the policy is unyielding to changing circumstances.
The District in the present case did not grant a reasonable
amount of released time because it established the rigid policy
that teachers would not be given any released time during the
instructional day. While it appears from the stipulated facts
that the District's policy did not hinder negotiations through the
summer months, a problem developed after the school year began.
The facts show that although the District's inflexible policy may
not have totally subverted the negotiating process, the policy at
least delayed and frustrated the efforts of the appointed mediator
to resolve the dispute. If the District believed its released time
policy appropriate to the circumstances of the negotiations prior
to the appointment of mediator, it should have reconsidered the
policy given the limitations of the mediator. While another
mediator might have been appointed in order to accommodate a
-5-

reasonable insistence upon negotiations beginning at 3:00 p.m.,
the fact remains that the District never considered the possibility
of altering its policy to allow released time during the instruc-
tional day, even for a single negotiating session.
An analysis of Section 3543.l(c) indicates that the
Legislature contemplated, at least in some circumstances, that
some released time during the instructional day as well as during
the one-half hour noninstructional workday would be appropriate.
Had the Legislature found that released time during the
instructional day could never be appropriate, it could have so
provided. Instead, it generally allowed the amount of released
time that would be appropriate under the circumstances of the
negotiations in the individual district.
Because the District did not comply with Section 3543.l(c)
by failing to allow reasonable released time, it follows that the
District violated Section 3543.5(b) in that it denied to an
employee organization rights guaranteed by the EERA. Having
found such a violation, we need not inquire whether the District
also violated Government Code Section 3543.5(c), 3 as alleged by
the Association, because a finding of such a violation would not
allow the Association relief additional to that already afforded.
Thus, we decline to address that issue.
ORDER
Pursuant to Government Code Section 3541.5(c) of the Educational
Employment Relations Act, it is hereby ordered that the Magnolia
School District and its representative shall:
1. CEASE AND DESIST FROM failing to grant to a
reasonable number of representatives of the
Magnolia Educators Association reasonable
periods of released time without loss of compen-
sation when meeting and negotiating;
Gov. Code Sec. 3543.5(c) provides in pertinent part:
It shall be unlawful for a public school employer to:...
(c) Refuse or fail to meet and negotiate in good faith
with an exclusive representative.
-6-

2. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
(a) 	Prepare 	and post 	copies 	of 	this 	order at
each of 	its 	schools 	and work 	sites 	for 	20
workdays 	in conspicuous 	places, 	including
all 	locations where notices 	to 	employees
are 	customarily 	placed.
(b) 	At 	the 	end of 	the posting period, 	notify 	the
Los 	Angeles 	Regional Director 	of 	the
Educational 	Employment 	Relations 	Board 	of
the 	actions 	it 	has 	taken 	to 	comply with
this order.
Raymond J. 	Gonzales, 	Member 	Reginald Alleyne, 	Chairman
H. 	Cossack, Member
Dated: 	June 27, 	1977
-7-