Burbank Unified School District * * * OVERRULED IN PART by Oroville Union High School District (2019) PERB Decision No. 2627 (PERB 0067E)

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OVERRULED IN PART by Oroville Union High School District
(2019) PERB Decision No. 2627
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BURBANK 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
BURBANK 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-59
PERB Decision No. 	67
August 21, 	1978
Appearances; 	Raymond 	Hansen, 	Attorney 	for 	Burbank 	Teachers
Association, 	CTA/NEA; 	David G. 	Miller, 	Attorney 	(Paterson &
Taggart) 	for 	Burbank Unified 	School 	District.
Before Gluck, 	Chairperson; 	Gonzales and Cossack Twohey, 	Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations Board
(hereafter 	Board) 	on exceptions 	filed 	by 	the Burbank Unified
School 	District 	(hereafter 	District) 	and 	the 	Burbank 	Teachers
Association 	(hereafter 	Association) 	to 	the 	hearing 	officer's
recommended 	decision, 	attached 	hereto. 	The 	District excepts 	to
the 	hearing 	officer's 	finding 	that 	it 	violated 	Educational
Employment 	Relations 	Act 	(hereafter 	EERA) 	sections 	3543.1(c)

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and 3543.5(b)1/ when 	it 	refused 	to 	grant 	released 	time 	to
Association 	negotiators 	for 	rest 	and 	recuperation 	after 	a
14-hour 	mediation 	session 	which 	ended 	at 	3:00 	a.m. 	on 	a
weekday. 	The Association 	excepts 	to 	the 	hearing 	officer's
proposed 	remedy 	and 	to 	his 	conclusion 	that 	the 	District 	did 	not
violate 	section 	3543.5(a), 	(c) 	and (e)2/ by 	the 	same 	refusal
1The 	EERA 	is 	codified 	at 	Gov. 	Code 	sec. 	3540 	et 	seq. 	All
statutory 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	indicated.
Sec. 	3543.l(c) provides:
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.
Sec. 	3543.5(b) 	provides:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2Sec. 	3543.5(a), 	(c) 	and 	(e) 	provides:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(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.
(c) 	Refuse 	or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
(e) 	Refuse 	to participate 	in good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in Article 	9
(commencing with 	Section 	3548).

to 	grant 	released 	time.
The 	Board 	finds 	that 	the 	District's 	refusal 	to grant
released 	time 	for 	purposes 	other 	than meeting 	and 	negotiating
does 	not, 	under 	the 	circumstances of 	this case, 	constitute 	a
violation of sections 	3543.l(c) 	and 	3543.5(b). 	Nor 	does 	it
constitute a violation of section 3543.5(a), 	(c), 	and 	(e).
FACTS
The 	findings 	of 	fact 	set 	forth 	in 	the 	attached 	recommended
decision 	of 	the 	hearing 	officer 	accurately 	summarize 	the 	record
and 	are 	adopted 	by 	the 	Board 	itself.
DISCUSSION
The 	Board 	first 	considered 	the 	issue 	of 	what 	constitutes
reasonable 	released 	time 	in Magnolia 	School 	District.3/ 	In
that 	case, 	the Magnolia 	School 	District 	refused 	to grant 	any
released 	time 	during 	the 	instructional 	day 	for 	mediation. 	The
Board 	found 	that 	the 	District's 	rigid 	refusal 	to 	adjust 	its
released 	time 	policy, 	even 	when 	it 	was 	clearly 	hampering
negotiations, 	constituted 	a 	per 	se 	violation of 	sections
3543.l(c) 	and 3543.5(b). 	It stated:
"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 	reasonable 	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 	negotiations 	and 	other
relevant 	factors.
3(6/27/77) 	EERB Decision No. 	19.
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In 	the 	present case, 	the 	record 	clearly 	indicates 	and 	the
hearing 	officer 	found 	that 	the 	District 	granted 	reasonable
released 	time 	for 	members 	of 	the 	Association's 	negotiating 	team
for 	negotiating 	sessions 	throughout 	September, 	October 	and
November. 	The 	central 	issue 	before 	the 	Board 	is 	whether 	the
District's 	refusal 	to grant 	released 	time 	for 	rest 	and
recuperation 	in 	the 	morning 	after 	a 	late 	night 	mediation
session 	violated 	the Association's 	right 	to 	receive 	"reasonable
released 	time."
The 	Board 	has 	not 	found 	any 	legislative 	history on 	the
purpose of 	the 	released 	time 	provision. 	It 	is 	nonetheless
reasonable 	to 	assume 	that 	the 	legislative 	intent 	of 	the
released 	time 	provision 	is 	to 	ensure 	effective 	representation
for 	employees 	in 	negotiations 	and 	grievance 	processing.
Released 	time 	lessens 	the 	burden 	on 	employee 	representatives
whose 	effectiveness 	may 	otherwise 	be 	limited 	by 	time
restraints. 	However, 	the 	Legislature 	clearly did 	not 	intend 	to
transfer 	the 	entire 	burden 	to 	the 	districts 	by 	requiring 	them
to 	release 	employee 	representatives 	for 	all 	time 	the 	employees
or 	employee 	organizations 	deem necessary or 	expend 	to 	represent
unit employees. 	Thus, 	the 	statute 	requires districts 	to
provide 	only 	a 	reasonable 	amount 	of 	released 	time 	for 	a
reasonable 	number 	of 	employees.
In addition, 	the 	language of 	section 	3543.1(c) 	limits 	the
purposes 	for 	which 	a 	district 	is 	required 	to grant 	released
time. 	It 	does 	not 	require 	a district 	to grant 	released 	time

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for 	all 	activities 	related 	to 	negotiations 	of 	employee
organizations. 	The 	statute 	gives 	employee 	organizations 	the
right 	to 	released 	time 	only 	"when 	meeting 	and 	negotiating 	and
for 	the 	processing of 	grievances."
Meeting 	and 	negotiating 	includes 	the 	time 	spent 	at 	the
negotiating 	table. 	It 	includes mediation 	and 	factfinding,
which 	are 	continuations 	of 	the 	negotiating 	process. 	It 	also
includes caucusing, 	which 	is 	an 	integral part of 	the process.
Meeting 	and 	negotiating 	does 	not 	include 	the 	time 	necessary 	to
prepare 	for 	negotiations. 	Nor, 	under 	normal circumstances,
does 	it 	include 	rest 	and 	recuperation 	time 	after 	a 	negotiations
session 	is 	concluded.
There 	may 	be 	situations 	where 	meeting 	and 	negotiating 	must
logically 	include 	some 	rest 	time 	after 	the 	negotiating 	session
ends. 	Such 	a 	situation would 	occur 	when 	it 	would 	be 	patently
unreasonable, 	given 	the 	legislative 	intent 	to 	limit 	the 	burden
on 	employee 	representatives, 	to 	force 	employee 	organization
negotiating 	team members 	to 	choose 	between 	working 	after 	the
negotiating 	session 	ends 	and 	losing 	pay 	or 	sick 	leave.
However, 	such circumstances 	are 	rare.
The 	circumstances 	in 	the 	present 	case 	do 	not present 	the
negotiating 	team members 	with 	such 	an 	unreasonable 	choice.
Some 	hours 	for 	rest 	were 	available 	and 	it 	was 	not 	patently
unreasonable 	to expect 	the 	team members 	to be 	able 	to 	teach 	the
next morning. 	In 	this 	situation, 	given 	the 	statutory language,
the 	District 	should 	not 	be 	expected 	to pay 	the 	team members
while 	they 	rested 	as 	well 	as 	to 	hire 	substitute 	teachers.

Therefore, 	the 	Board 	finds 	that 	the 	District 	did 	not 	violate
sections 	3543.l(c) 	and 	3543.5(b)
The 	Board 	adopts 	the 	hearing 	officer's 	conclusion 	that 	the
Association 	has 	failed 	to 	prove 	that 	the 	District's 	refusal 	to
grant 	released 	time 	was 	in 	reality 	an 	attempt 	to 	impose 	or
threaten 	to 	impose 	reprisals 	on 	employees 	or 	to 	coerce
employees 	in violation 	of 	section 	3543.5 	(a). 	The 	Board 	also
adopts 	the 	hearing 	officer's 	finding 	that 	the 	District 	met 	and
negotiated 	in 	good 	faith 	and 	participated 	in 	the 	impasse
procedures 	in 	good 	faith, 	and 	therefore 	did 	not 	violate 	section
3543. 5 (c) 	and 	(e) .
Since 	the 	Board 	finds 	that 	the 	District's 	conduct 	did 	not
constitute 	an unfair 	practice, 	it 	need 	not 	address 	the
Association's 	exceptions 	to 	the 	proposed 	remedy.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board ORDERS 	that:
The 	unfair 	practice 	charge 	filed 	by 	the 	Burbank 	Teachers
Association 	against 	the 	Burbank 	Unified 	School 	District 	is
dismissed.
/ 	By: ,Raymond 	J. 	Gonzales , 	Member 	Harry 	Gluck , 	Chairperson
Jerilou 	Cossack 	Twohey, 	Member	/
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EDUCATIONAL EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA.
BURBANK TEACHERS ASSOCIATION,
CTA/NEA 	Unfair 	Practice
Charging Party,
vs.
BURBANK UNIFIED SCHOOL DISTRICT,
Respondent.
Case 	No. 	LA-CE-59
Appearances: 	Raymond Hansen, Attorney, for Burbank Teachers Association,
CTA/NEA; David Miller, Attorney, for Burbank Unified School District.
Before Jeff Paule, Hearing Officer.
STATEMENT OF THE CASE
On January 10, 1977 the Burbank Teachers Association, CTA/NEA(hereafter
"charging party" or "BTA"), filed an unfair practice charge against the
Burbank Unified School District (hereafter respondent or District) with the
Educational Employment Relations Board (hereafter EERB). 	The charge alleges
that the District violated Government Code Sections 3543.1(a) and (c) and
3543.5(a), 	(b), 	(c), 	(d), and ( e ) . 1 , 2
Unless otherwise noted, all section references are to the Government Code,
following sections provide:
3543.1. 	(a) Employee organizations shall have the right to represent their
members in their employment relations with public school employers, except
that once an employee organization is recognized or certified as the exclusive
representative of an appropriate unit pursuant to Section 3544.1 or 3544.7,
respectively, 	only that employee organization may represent that unit in their
employment relations with the public school employer. 	Employee organizations
may establish reasonable restrictions regarding who may join and may make
reasonable provisions for the dismissal of individuals from membership.
(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. 	(continued page 2)
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On February 14, 1977 the Respondent filed its answer to the charge
and a motion for dismissal. 	On March 25, 1977 the charging party filed an
opposition to the motion for dismissal.
A hearing was held on May 16, 1977 at the Los Angeles Regional Office
of the EERB.
Essentially, the unfair practice charge alleges that the District
failed to provide reasonable released time as required by Section 3543.l(c)
when it refused to grant to BTA's negotiating team time to "rest and
recuperate" on November 3, 1976 following an exhausting, late night mediation
session which started at 1:00 p.m. on November 2, 1976 and adjourned at
approximately 3:00 a.m. on November 3, 1976. 	Further, the charging party
contends that the refusal to grant such released time was in reprisal over
the failure to reach agreement on the wording of a no-reprisal, clause the
charging party insisted on being included in the contract.
The District denies that it acted in reprisal for failure to reach
agreement, and argues that Section 3543.l(c) mandates only 	reasonable
released time for meeting and negotiating and that released time may not be
granted to allow BTA's negotiators to "rest and recuperate."
The motion to dismiss is disposed of in accordance with the findings
and conclusions below.
3543.5. 	It shall be unlawful for a public school employer to: 	(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.
(b) Deny to employee organizations rights guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an exclusive
representative.
(d) Dominate or interfere with the formation or administration of any employee
organization, or contribute financial or other support to it, or in any way
encourage employees to join any organization in preference to another.
(e) Refuse to participate in good faith in the impasse procedure set forth in
Article 9 (commencing with Section 3548).
(cont'd from page 1)
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ISSUE
Did the Burbank Unified School District violate Sections 3543.1(a) and
(c) and Sections 3543.5(a), (b), (c), (d) and (e) when it refused to grant
released time to the Burbank Teachers Association negotiators on
November 3, 1976?
FINDINGS OF FACT
The Burbank Unified School District employs approximately 600
certificated employees who serve approximately 13,400 students. 	Teachers in
the Burbank Unified School District work from 8:00 a.m. until 3:00 p.m.
On May 4, 1976, the BTA was voluntarily recognized as the exclusive
representative of the certificated employees in the District.
In anticipation of bargaining sessions during the summer recess the
parties prepared and signed a "Memorandum of Mutual Understanding and
Agreement," dated June 21, 1976, which covered, inter alia, the length
of negotiating sessions, the procedure for submission of agendas and the
number of bargaining representatives. 	No provision defining reasonable
released time for BTA's bargaining representatives was included in this
memorandum.
There were 27 meeting and negotiating sessions during the summer from
June 21, 1976 to September 2, 1976 and the procedures set up under the
"Memorandum of Mutual Understanding and Agreement" were followed with
essential uniformity by both parties. 	With few exceptions, these sessions
started promptly at 1:00 p.m. and ended at 5:00 p.m. 	Subsequent to the
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September 2, 1976 meeting and negotiating session, the parties declared
themselves to be at impasse and arranged for mediation pursuant to
Section 3548.3
On Tuesday, September 21, 1976, the parties held the first of four
mediation sessions under the direction of a mediator appointed by the EERB.
At the commencement of the mediation session 	the parties agreed to the
following regarding the issue of 	released time:
1. That the District will, during the present mediation period,
provide released time for up to six BTA bargaining representatives
for the purpose of attending sessions called by the mediator, and
that
2. This action on the part of the District in no way whatsoever sets
any precedents as regards future positions of the District with
regard to the providing of released time, nor does it infer in any way
that the District has made any future commitment in this regard.
3Section 3548 provides that:
Either a public school employer or the exclusive representative
may declare that an impasse has been reached between the parties in
negotiations over matters within the scope of representation and may
request the board to appoint a mediator for the purpose of assisting
them in reconciling their differences and resolving the controversy
on terms which are mutually acceptable. 	If the board determines that an
impasse exists, it shall, in no event later than five working days
after the receipt of a request, appoint a mediator in accordance with such rules
as it shall prescribe. 	The mediator shall meet forthwith with the parties
or their representatives, either jointly or separately, and shall take
such other steps as he may deem appropriate in order to persuade the parties
to resolve their differences and effect a mutually acceptable agreement.
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The first session lasted from 10:00 a.m. to approximately 9:00 p.m.,
with a luncheon recess, but no break for dinner. 	At the conclusion of the
mediation session, the mediator instructed the parties to reconvene meeting
and negotiating sessions on Thursday, September 23, 1976.
Pursuant to the mediator's instructions, the parties met and
negotiated on ten occasions in an attempt to reduce the number of issues in
dispute. 	The sessions began either at approximately 10:00 a.m. or
soon after lunch. 	Released time was provided for six BTA negotiators who
participated in the sessions prior to 3:00 p.m.. 	On some occasions more than
six BTA negotiators were present during the working day and in these cases
the BTA paid for substitutes. 	The parties were able to reduce the number
of unresolved issues and thus arranged for a second mediation session to
facilitate the resolution of their remaining differences.
A second mediation session was held over the weekend of October 15, 1976.
This "marathon" session began on Friday, October 15, 1976 at 10:00 a.m.
and continued non-stop until approximately 3:00 p.m. on Saturday, October 16,
1976, when representatives from both sides went home to rest after
approximately 30 hours of continuous negotiating. 	During the session the
mediator made it clear to both sides that he was in charge, and that although
all the parties were near exhaustion, they would remain at the negotiating
table until he told them they could leave. 	Representatives from both
sides reassembled with the mediator the following morning, Sunday,
October 17, 1976, at approximately 10:00 a.m., and negotiated for
approximately 14 hours until almost midnight. 	With the exception of the hours
between 10:00 a.m. and 3:00 p.m. on Friday, October 15, 1976, the District
was not required to grant released time because the major portion of this
marathon session took place in the evenings and over the weekend.
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When the parties terminated the October 17, 1976 session, it was felt
that substantial agreement had been reached as to all provisions to be
included in the contract. 	Much of the agreement was not in writing, however,
and the parties agreed to meet the next morning, Monday, October 18, 1976,
to "polish up" the language agreed to over the weekend session and to reduce
to writing those provisions of tine contract agreed to verbally.
Since the weekend sessions had been long and exhausting, and because
the parties were scheduled to meet Monday, October 18, 1976, Dr. Robert
Shanks, Superintendent, told the BTA. negotiators to sleep-in and not to
worry about arriving at school before 11:00 a.m. Monday morning. 	He
assured them that substitutes would be provided and released time would be
granted by the District, 	There is a dispute as to whether Dr. Shanks granted
the released time on October 18, 1976 to the BTA. negotiators for "rest and
recuperation" purposes or for meet and negotiate purposes. 	While the
evidence is conflicting on this point, it seems more credible that the
released time was granted for both reasons.
The Monday, October 18, 1976, meeting between the parties "to polish up"
contract language turned into an actual meeting and negotiating session.
The parties discovered that they were riot in total agreement and it was
mutually decided to request that the mediator return.
On Monday, November 1, 1976, BTA. representatives met with Dr. Shanks
from 10:00 a.m. to 6:00 p.m. in order to prepare for the third mediation
session scheduled to take place the following day. 	Released time was
provided for this meeting and negotiating session.
The third mediation session began at 1:00 p.m., Tuesday, November 2,
1976. 	Two members of the BTA. negotiating team, Maureen Doyle and John Gain,
met with District negotiators and the mediator from 1:00 p.m. to 3:30 p.m.
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Mr. Gain was provided released time. 	Ms. Doyle arranged for another teacher
within the school to cover her class and so released time was not necessary.
The other members of the BTA negotiating team arrived at 3:30 p.m., after
school was out.
The November 2, 1976 session lasted approximately 14 hours, until
3:00 a.m. on November 3, 1976, and was particularly heated because the
parties disagreed over the inclusion of a no-reprisal clause in the
contract. 	The session ended unsatisfactorily with the mediator indicating
that agreement had not been reached. 	At this time Mr. Gain presented to
Dr. Shanks a list of those teachers who would be needing substitutes
that day, November 3, 1976, so that the BTA representatives could "rest and
recuperate" from the strenuous night's negotiations. 	The six teachers
were: John Gain, Maureen Doyle, Peter Laris, Dona Nakashima, Jean Yoder and
Bittersweet Wojtyla. 	The BTA representatives felt that based on the
experience of the October 17, 1976 late night session the District would grant
the request for released time to 	"rest and recuperate." 	Dr. Shanks
unequivocally refused to honor the request. 	He reasoned that unlike the
October 17, 1976 session, no meeting and negotiating session was scheduled
for the afternoon of November 3, 1976.
Dr. Shanks indicated to the BTA representatives that substitutes would
be called, however, and that the teachers involved could either take one
day of personal necessity leave, thus losing one day of sick leave, or
lose one day of pay. 	(See Ed. Code Sec. 45207.) 	All of the BTA representatives
refused to utilize personal necessity leave and were therefore docked one
day's pay with the exception of Peter Laris, who was paid but lost one day
of accumulated sick leave.
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On Wednesday morning, November 3, 1976, the six BTA negotiating
representatives arrived at the BTA offices between 11:00 a.m. and 12:00 noon.
Ms. Doyle called Dr. Shanks and informed him that the BTA team was in its
offices and willing to meet and negotiate over the unsettled no-reprisal
clause issue. 	Dr. Shanks refused, indicating that the District's
position on the no-reprisal clause had not changed and that he would not
meet. 	No meet and negotiate session was scheduled or occurred.
On November 4, 1977, Mr. Gain called Dr. Shanks and suggested a
solution to the no-reprisal clause impasse. 	A meeting and negotiating
session was scheduled for that day at 1:00 p.m. 	Mr. Gain and
Ms. Doyle attended the session and were provided released time. 	This meeting
and negotiating session concluded at 6:00 p.m. 	at which time the parties
reached agreement on the no-reprisal clause.
One final problem developed regarding the length of the contract.
The parties again requested the mediator to return and on Wednesday,
November 24, 1976, the fourth mediation session was held. 	A contract
finally was consummated on November 24, 1976.
CONCLUSIONS OF LAW
In Magnolia Educators Association vs. Magnolia School District, EERB
Decision No. 19 (June 27, 1977), the EERB set forth the standard to be
utilized in determining what constitutes reasonable released time within
the meaning of Section 3543.l(c)4 as follows:
4Supra, note 2, at 1.
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"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 reasonable
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. (Emphasis added).
In the Magnolia case, the Board found that the Magnolia School
District committed a per se violation of Section 3543.l(c) of the EERA
because of the "rigidity and inflexibility" of its policy of restricting
released time to one-half hour of non-teaching time at the conclusion of
each school day. 	The Board further noted that the District's released time
policy was particularly inflexible and inappropriate given the presence
of a mediator with a limited and restricted meeting schedule. 	The failure
to mold released time around the scheduling needs of the mediator was
additional evidence of the "unreasonableness" of the District's released
time policy.
In the instant case, the Burbank Unified School District granted
reasonable periods of released time to from one to six members of BTA's
bargaining team throughout the months of September, October and November.
Generally, the District was willing to adjust its released time policy to
meet the circumstances of the particular meeting and negotiating session,
as mandated in Magnolia.
Likewise, the BTA generally was reasonable in its demands for released
time. 	During the summer prior to the 1976-77 school year 	27 meet and
negotiate sessions were conducted. 	Once school began, the BTA regularly
sent only a few members of its negotiating team to morning and afternoon
meet and negotiate sessions. 	The remainder of the team would join the
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bargaining sessions at the conclusion of the school day. 	Further, many
of the mediation sessions were held in the evening and over the weekend.
On at least one occasion, Maureen Doyle arranged to have an on-canpus
teacher cover her afternoon class so that the District would not be
obligated to hire a substitute. 	And, on one or two occasions, the BTA
paid for a substitute when an extra teacher was required to help out
during negotiations.
The "Memorandum of Mutual understanding" executed on June 21, 1976 and a
second agreement dated September 21, 1976, are further evidence of a
willingness on the part of both parties to assume a "reasonable" and
mutually acceptable posture on the 	issues of the number of representatives
and the amount of released time
However, although the District displayed "reasonable" flexibility
throughout most of the meet and negotiate and mediation sessions, 	its
adamant refusal to provide released time to the six members of BTA's
bargaining team on Wednesday, November 3, 1976 was not "appropriate to
the circumstances of the negotiations" and therefore constitutes a
violation of Section 3543.l(c). 	More particularly, the District's
argument that Section 3543.l(c) mandates that released time is reasonable
only when it is provided during actual hours of meeting and negotiating is
untenable. 	The phrase "when meeting and negotiating" cannot be construed to
limit released time to the actual time spent at the negotiating table, but of
necessity includes other activities such as caucusing. 	There is no hard and
fast rule, however, for as Magnolia clearly indicates, what constitutes
"reasonable released time" must be calculated on a case by case basis, and varies
according to the circumstances surrounding the meeting and negotiating sessions.
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In the instant case, all of BTA's representatives had arrived at school
at 8:00 a.m. on Tuesday, November 2, 1976. 	With the exception of Mr. Gain
and Ms. Doyle, all taught a full day of school prior to joining the
on-going mediation session. 	The November 2, 1976 session concluded at
approximately 3:00 a.m. on November 3, 	1976 after nearly 14 hours of
mediation. 	Clearly, all parties were exhausted, especially since the
session had been a particularly heated one focusing on BTA's no-reprisal
clause proposal. 	Since the District's school day begins at 8:00 a.m.,
those teachers who participated in the late night session would be able
to get a maximum of approximately four hours sleep. 	Indeed, 	the District
acknowledged the enervated state of the participants and the difficulty of
teaching a full school day when it offered to contact substitutes and to
allow the negotiating team to take "personal necessity leave," with the
resultant loss of one day's accumulated sick leave.
The reasonableness of the BTA's request for released time on November 3, 	1976
is further substantiated by the fact that, as in Magnolia, the parties were
attempting to comply with the meeting procedures established by the
mediator. 	Mr. Gain and Ms. Doyle both testified that they felt that during
mediation sessions they were under the control of the mediator and were
required to stay at the negotiating table until he indicated that they could
leave. 	Apparently the mediator in this case felt that protracted, late night
sessions, in which the parties were kept at the 	negotiating table with
few or no interruptions, would facilitate a settlement as opposed to mediation
sessions conducted on a more routine schedule.
The fact that the parties felt they were not free to set the adjournment
time of the November 2-3, 	1976 session and that the mediator felt it to be in
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·s
the best interests of the parties to continue negotiating into the early
morning hours, BTA's request for released time on November 3, 1976 was
"reasonable" and "appropriate to the circumstances of the negotiations."
The District's refusal to grant released time on November 3, 1976 violates
Section 3543.1(c).
By violating Section 3543.l(c) the District thereby violates Section
3543.5(b) in that it denied to the BTA rights guaranteed under the EERA.
Other Violations
Section 3543.1 (a)
The Charging Party also alleges that respondent failed to comply with
the provisions of Section 3543.1 (a).5 There is nothing in the record to
indicate that the charging party was denied the right to represent its members
or that the District allowed any other employee organization to represent
certificated personnel in the Burbank Unified School District following
BTA's recognition as exclusive representative. 	Therefore, no violation
of Section 3543.1(a) has occurred.
Sections 3543.5(a), (c), (d) and (e)
The charging party further alleges in its unfair practice charge and its
briefs that the District's refusal to grant reasonable released time pursuant
to Section 3543.l(c) was in retaliation for BTA's failure to reach agreement
on the proposed no-reprisal clause during the November 2-3 mediation
5Supra, note 2, at 1.
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session. 	The BTA argues that the respondent thereby violated Section 3543.5(a).
The charging party's allegation with respect to this section is without merit.
While the November 2-3 mediation session was a heated one and the
parties no doubt adjourned the session in a frustrated and angry mood, 	such
feelings are often integral parts of the collective 	negotiations process and
are not in themselves evidence of unfair practices. 	While the District's
reading of Section 3543.l(c) is too restrictive given the circumstances
of the negotiations, 	it is found that the District in good faith incorrectly
interpreted Section 3543.l(c). 	The charging party has failed to prove that
the District's refusal was in reality an attempt to "impose or threaten
to impose reprisals on employees,.... or to coerce employees because
of their exercise of rights" under the EERA. 	See San Dieguito Faculty
Association vs. San Dieguito Union High School District, EERB Decision
No. 22 (September 2, 1977).
The record is likewise bare of convincing evidence that the respondent
refused or failed to meet and negotiate in good faith (Section 3543.5(c)),
or that it refused to participate in good faith in the impasse procedure
(Section 3543.5(e)).6 The District participated willingly in meet and
negotiate sessions beginning in June of 1976 and it agreed with the charging
party that impasse had been reached subsequent to the September 2, 	1976 meet
and negotiate session. 	The District thereafter participated cooperatively
in the mediation sessions. 	All of the facts in this case show clearly that
the District met and negotiated 	in good faith and participated in good faith
in the impasse procedures set forth under the EERA. 	Therefore, the charging
party's allegations of Sections 3543.5(c) and (e) unfair practices are
dismissed.
6Supra, Note 2, at 2.
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With respect to Section 3543.5(d)
7, which states that it shall be
unlawful for a public school employer to dominate or interfere with the
formation or administration of any employee organization, the charging
party has failed to produce any evidence to support this allegation. 	The
allegation under this section is dismissed.
Government Code Section 3541.5(c) provides that the EERB shall
have the power to issue a decision and order in an unfair practice case
directing an offending party to cease and desist from the unfair practice
and "to take such affirmative action...as will effectuate the policies of
this chapter."
In Magnolia Educators Association vs. Magnolia School District, supra,
the Board found an unfair practice in a Section 3543.l(c) case and while the
Board's remedy in that case included a cease and desist order, the Board did
not direct the District to grant a specific number of hours of released
time for meeting and negotiating. 	Implicit in the Board's decision in
Magnolia, however, is a directive to the District to reconsider its
released time policy in light of the Board's opinion.
Likewise, in the instant case, it is felt that directing the District
to pay a specific amount for released time on November 3', 1976 would
not be appropriate at this time. 	The parties should first have an opportunity
to resolve the matter of compensation for November 3, 1976 to their mutual
satisfaction. 	The District will be ordered to reconsider its refusal to
grant released time on November 3, 1976, and to arrive at an appropriate amount
of reimbursement which "is appropriate to the circumstances of the negotiations."
As stated in Magnolia, the District should consider the following factors: 	the
7Supra, note 2, at 2.
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reasonable needs of the District, the number of hours spent in negotiations,
the number of employees on the employee organization's negotiating team
and the progress of the negotiations. 	Additionally, the District should
consider the fact that all of the BTA negotiators were at school by 12:00
noon on November 3, 1976.
After considering the above-mentioned factors and arriving at a specific
amount of released time, the District will be ordered to submit the figure
to the Burbank Teachers Association for its consideration. 	If the parties
are able to stipulate to a specific amount of released time for November 3,
1976, the stipulation will be accepted by the hearing officer and will be
incorporated herein.
It is felt that this remedy will better "effectuate the policies of
the EERA", foremost of which is to promote the improvement of employer-
employee relations in the public school systems. 	However, in the event
the parties are unable to effectuate an agreement with respect to the
appropriate amount of released time the hearing officer will decide
the appropriate amount.
ORDER
Upon the foregoing findings of fact, conclusions of law, and the
entire record in this case, and pursuant to Government Code Section 3541.5(c)
of the Educational Employment Relations Act, it is hereby ordered that the
Burbank Unified School District and its representative shall:
1. CEASE AND DESIST FROM failing to grant to the representatives of the
Burbank Teachers Association reasonable periods of released time without
loss of compensation;
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO EFFECTUATE THE
POLICIES OF THE EERA:
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Reconsider its refusal to grant released time to the Burbank Teachers
Association negotiators on November 3, 	1976 and determine an appropriate
amount of released time which is 	consistent with the views expressed in this
decision .
IT IS FURTHER ORDERED that , pursuant to EERB Regulation 35029, 	this
decision shall become final on October 13, 	1977, 	provided that no party
files 	a statement of exceptions as provided in Regulation 35030 .
IT IS FURTHER ORDERED . that 	the District attempt to effectuate a
mutually agreeable amount of released time with the Burbank Teachers
Association for November 3, 	1976, 	and if an agreement is reached, 	to submit
the agreement to the hearing officer before October 13, 	1977, which said
agreement will 	then be incorporated into a final 	supplemental order to be
issued on October 13, 	1977.
· IT IS FURTHER ORDERED that 	if no party files 	a statement of ·exceptions,
and no stipulation as 	to the amount of compensation is 	submitted to the
hearing officer before October 13, 	1977, 	the hearing officer shall issue a
supplemental order on October 13, 	1977 with respect to the remedy only, 	and
either party may file a statement of exceptions only as 	to that portion of
the remedy as 	is set 	forth in the supplemental order.
IT . IS FURTHER ORDERED that 	the charge shall be dismissed with respect
to any unfair practices which have been ' alleged and have not been found to
be violations of the EERA .
Dated: 	September 28, 	1977
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Jeff Paule
Hearing Officer