Sutter Union High School District (PERB 0175E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SUTTER EDUCATION ASSOCIATION,
Charging Party, 	Case No. S-CE-182
V . 	PERB Decision No. 175
SUTTER UNION HIGH SCHOOL DISTRICT, 	October 7, 1981
Respondent.
Appearances: Wayne T. Carothers, Consultant, California
Teachers Association, for the Sutter Education Association;
Jon A. Hudak, Attorney (Breon, Galgani & Godino) for the Sutter
Union High School District.
Before Gluck, Chairperson; Moore and Tovar, Members.
DECISION
The Sutter Union High School District (hereafter District)
excepts to the attached Public Employment Relations Board
(hereafter PERB or Board) hearing officer's proposed decision.
The hearing officer found that the District violated section
3543. 5(c) of the Educational Employment Relations Act
(hereafter EERA) _ by unilaterally changing unit members'
JEERA is codified at Government Code section 3540, et
seq. All statutory references in this decision are to the
Government Code, unless otherwise noted.
Section 3543.5 provides:
It shall be unlawful for a public school
STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
EMPLOYMENT
	RELATIONS
	BOARD
SUTTER EDUCATION
	ASSOCIATION,
Charging
	Party,
v.
SUTTER	
UNION 	HIGH 	SCHOOL	
DISTRICT,
Res
pond
en
t.
)
)
)	
Case
	No.
	S-CE-182
PERB
	Decision
	No. 175
October 7, 	1981
)
)
)
)
)
)
)
Appearances:	
Wayne
	T.
	Carothers, 	Consultant,
	California
Teachers
	Association,
	for 	the
	Sutter
	Education
	Association;
Jon
	A.
	Hudak,
	Attorney
	(Breon,
	Galgani
	&
Godino)
	for 	the
	Sutter
Union High
	School
	District.
Before
	Gluck,
	Chairperson;
	Moore
	and
	Tovar.
	Members
..
DECISION
The
	Sutter
	Union High
	School
	District
	(hereafter
	District)
excepts 	to 	the 	attached 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board)
	hearing
	officer's
	proposed
	decision.
The
	hearing
	officer
	found
	that
	the
	District
	violated 	section
3543.S(c) 	of 	the 	Educational
	Employment
	Relations
	Act
(hereafter
	EERA) 1	
by
	unilaterally
	changing
	unit
	members'
1EERA
	is 	codified 	at
	Government 	Code
	section
	3540.
	et
seq. 	All 	statutory 	references 	in
	this
	decision 	are 	to 	the
Government 	Code,
	unless 	otherwise 	noted.
Section
	3543.5 	provides:
It
	shall
	be
	unlawful 	for
	a
	public 	school

workday from five to six periods, a matter within the scope of
representation.
After considering the entire record and briefs of the
parties, the Board adopts the hearing officer's findings of
fact as the findings of the Board itself. The Board affirms
his conclusions of law in accordance with the following
discussion.
DISCUSS ION
Waiver
The District asserts that the Sutter Education Association
(hereafter the Association), the exclusive representative of a
unit of the District's certificated employees, waived its right
to negotiate about the six-period day by its failure to demand
negotiations prior to the July 10, 1978 school board meeting.
At that meeting, the school board voted to change the teachers'
workday from five to six periods thereby eliminating a
forty-five minute preparation period.
Current PERB and National Labor Relations Board (hereafter
NLRB) precedent supports the hearing officer's finding that
employer to:
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
2 Relevant cases under the National Labor Relations Act
are persuasive precedent in the interpretation of California
labor relations statutes. Fire Fighters Union v. City of
workday 	from
	five 	to
	six 	periods,
	a
	matter 	within 	the
	scope
	of
representation.
After 	considering 	the
	entire
	record
	and
	briefs
	of
	the
parties,
	the
	Board
	adopts 	the 	hearing
	officer's
	findings 	of
fact
	as
	the 	findings
	of
	the
	Board
	itself.
	The
	Board
	affirms
his
	conclusions
	of
	law
	in
	accordance 	with
	the 	following
discussion.
DISCUSSION
Waiver
The
	District 	asserts
	that
	the
	Sutter
	Education
	Association
(hereafter 	the Association),
	the 	exclusive 	representative 	of
	a
unit
	of
	the
	District's
	certificated
	employees, 	waived
	its
	right
to 	negotiate
	about
	the
	six-period
	day 	by
	its
	failure
	to
	demand
negotiations 	prior
	to 	the 	July
	10,
	1978
	school 	board
	meeting.
At
	that
	meeting, 	the 	school
	board 	voted
	to
	change
	the
	teachers'
workday 	from
	five 	to
	six
	periods 	thereby 	eliminating
	a
forty-five
	minute
	preparation
	p=>riod_
Current
	PERB
	and
	National
	Labor
	Relations
	Board
	(hereafter
NLRB)
	precedent
2	
supports 	the 	hearing
	officer's
	finding
	that
employer
	to:
(
c) 	Ref use 	or
	f
ai
1
	to
	meet 	and
	negotiate 	in
good
	faith
	with
	an
	exclusive 	representative.
2
Relevant 	cases 	under 	the National
	Labor
	Relations
	Act
are 	persuasive 	precedent 	in 	the 	interpretation 	of 	Californialabor 	relations 	statutes. 	Fire 	~}ghters 	Union 	v.
	Ci_!:y_
of
2

an exclusive representative's waiver of the right to negotiate
must be "clear and unmistakable." In San Mateo County
Community College District (6/8/79) PERB Decision No. 94 at
p. 22 the Board held that, for an employer to show that a union
waived its right to negotiate, it must demonstrate:
either clear and unmistakable
language, Amador Valley JUHSD (citation), or
demonstrative behavior waiving a reasonable
opportunity to bargain over a decision not
already firmly made by the employer.
[citations. ] 	(Emphasis added. )
In accord, see Harrison Manufacturing v. UAW (1980) 253
NLRB No. 97 [106 LRRM 1021].
The record clearly establishes that the District gave the
Association no "reasonable opportunity" to negotiate over the
six-period day issue. 	The District did not consider the
meetings after June 28 and before July 10 as negotiating
sessions and refused the Association's request that the
Association's negotiating team be present at these sessions to
"investigate the possibility of a six-period day". 	The
employer implemented the six-period day on July 10, after the
investigation meetings and then ignored the Association's two
requests to negotiate in July and August. Based on these
facts, the Board adopts the hearing officer's finding
Vallejo (1974) 12 Cal. 3d 608 [116 Cal. Rptr. 507] ; Los Angeles
County Civil Service Com. v. Superior Court (1978) 23 Cal. 3d 55
[151 Cal. Rptr . 547].
W
an 	exclusive 	representative's 	waiver 	of 	the 	right 	to 	negotiate
must 	be 	"clear 	and 	unmistakable." 	In 	San Mateo County
Community College 	District 	(6/8/79) 	PERB 	Decision No. 	94 	at
p. 	22 	the 	Board 	held 	that, 	for 	an 	employer 	to 	show 	that 	a 	union
waived 	its 	right 	to 	negotiate, 	it 	must 	demonstrate:
... 	either 	clear 	and 	unmistakable
language, 	Amador 	Valley 	JUHSD 	(citation), 	or
demonstrative 	behavior 	waiving 	a 	reasonable
opportunity 	to 	bargain 	over 	a 	dec1s1on 	not
already 	firmly made 	by 	the 	employer.
[citations.] 	(Emphasis 	added.)
In 	accord, 	see 	Harrison Manufacturing 	v. 	UAW 	(1980) 	253
NLRB 	No. 	97 	[106 	LRRM 	1021].
The 	record 	clearly 	establishes 	that 	the 	District 	gave 	the
Association 	no 	"reasonable 	opportunity" 	to 	negotiate 	over 	the
six-period 	day 	issue. 	The 	District 	di.d 	not 	consider 	the
meetings 	after 	June 	28 	and 	before 	July 	10 	as 	negotiating
sessions 	and 	refused 	the 	Association's 	request 	that 	the
Association's 	negotiating 	team 	be 	present 	at 	these 	sessions 	to
"investigate 	the 	possibility 	of 	a 	six-period 	day". 	The
employer 	implemented 	the 	six-period 	day 	on July 	10, 	after 	the
investigation 	meetings 	and 	then 	ignored 	the 	Association's 	two
requests 	to 	negotiate 	in July 	and August. 	Based 	on 	these
facts, 	the 	Board 	adopts 	the 	hearing 	officer's 	finding
Vall 	o 	(1974) 	12 	Cal.3d 	608 	[116 	Cal.Rptr. 	507]; 	Los 	Angeles
County 	Civil 	Service Com. 	v. 	Superior 	Court 	(1978) 	23 	Cal.3d 	55
rrsr-caT:-Rptr. 	547 	.
3

that the Association did not waive its right to negotiate.
Scope of Representation
The District excepts to the hearing officer's finding that
the subject of a six-period teaching day is within the scope of
representation and that the District's unilateral increase in
teacher instructional periods and reduction of preparation time
violated section 3543.5 (c) .
Under section 3543.5 (c) , an employer is obligated to meet
and negotiate in good faith with an exclusive representative
only about matters within the scope of representation. Thus,
an employer's unilateral change about a matter outside the
scope of representation would not be a 3543.5(c) violation.
Section 3543.24 limits the subjects of negotiations to
"matters relating to wages, hours of employment" or other
specifically defined "terms and conditions of employment."
4 Section 3543.2 provides:
The scope of representation shall be limited
to matters relating to wages, hours of
employment, and other terms and conditions
of employment. 	"Terms and conditions of
employment" mean health and welfare benefits
as defined by Section 53200, leave, transfer
and reassignment policies, safety conditions
of employment, class size, procedures to be
used for the evaluation of employees,
organizational security pursuant to
Section 3546, procedures for processing
grievances pursuant to Sections 3548.5,
3548.6, 3548.7, and 3548.8, and the layoff
of probationary certificated school district
employees, pursuant to Section 44959.5 of
that 	the 	Association 	did 	not 	waive 	its 	right 	to 	negotiate.
Scope 	of 	Representation
The 	District 	excepts 	to 	the 	hearing 	officer's 	finding 	that
the 	subject 	of 	a 	six-period 	teaching 	day 	is 	within 	the 	scope 	of
representation 	and 	that 	the 	District's 	unilateral 	increase 	in
teacher 	instructional 	periods 	and 	reduction 	of 	preparation 	time
violated 	section 	3543.5(c).
Under 	section 	3543.5(c), 	an 	employer 	is 	obligated 	to 	meet
and 	negotiate 	in 	good 	faith 	with 	an 	exclusive 	representative
only 	about 	matters 	within 	the 	scope 	of 	representation. 	Thus,
an 	employer's 	unilateral 	change 	about 	a 	matter 	outside 	the
scope 	of 	representation 	would 	not 	be 	a 	3543.5(c) 	violation.
Section 	3543.2 4 	limits 	the 	subjects 	of 	negotiations 	to
"matters 	relating 	to 	wages, 	hours 	of 	employment" 	or 	other
specifically defined 	"terms 	and 	conditions 	of 	employment."
4section 	3543.2 	provides:
The 	scope 	of 	representation 	shall 	be 	limited
to 	matters 	relating 	to 	wages, 	hours 	of
employment, 	and 	other 	terms 	and 	conditions
of 	employment. 	"Terms 	and 	conditions 	of
employment" 	mean 	health 	and 	welfare 	benefits
as 	defined 	by 	Section 	53200, 	leave, 	transfer
and 	reassignment 	policies, 	safety 	conditions
of 	employment, 	class 	size, 	procedures 	to 	be
used 	for 	the 	evaluation 	of 	employees,
organizational 	security pursuant 	to
Section 	3546, 	procedures 	for 	processing
grievances 	pursuant 	to 	Sections 	3548.5,
3548.6, 	3548.7, 	and 	3548.8, 	and 	the 	layoff
of 	probationary 	certificated 	school 	district
employees, 	pursuant 	to Section 	44959.5 	of
4

The hearing officer's proposed decision was issued prior to
the Board's promulgateon of a balancing test to determine
negotiability as set forth in San Mateo City School District,
(5/20/80) PERB Decision No. 129, and reaffirmed and elaborated
upon in Healdsburg Union High School District (6/19/80) PERB
Decision No. 132 and Jefferson School District (6/19/80) PERB
Decision No. 133.
In San Mateo City School District, the district
unilaterally lengthened the minimum teacher instructional day
and eliminated a 30-minute preparation period leaving intact
the overall 7 1/4-hour workday and the duty-free lunch period.
As in the instant case, the San Mateo District argued that, as
long as the total workday remained constant, it was
management's prerogative to alter teacher instructional time.
The Board rejected this argument and held:
the Education Code. In addition, the
exclusive representative of certified
personnel has the right to consult on the
definition of educational objectives, the
determination of the content of courses and
curriculum, and the selection of textbooks
to the extent such matters are within the
discretion of the public school employer
under the law. 	All matters not specifically
enumerated are reserved to the public school
employer and may not be a subject of meeting
and negotiating, provided that nothing
herein may be construed to limit the right
of the public school employer to consult
with any employees or employee organization
on any matter outside the scope of
representation.
5
the 	Education 	Code. 	In 	addition, 	the
exclusive 	representative 	of 	certified
personnel 	has 	the 	right 	to 	consult 	on 	the
definition 	of 	educational 	objectives, 	the
determination 	of 	the 	content 	of 	courses 	and
curriculum, 	and 	the 	selection 	of 	textbooks
to 	the 	extent 	such 	matters 	are 	within 	the
discretion 	of 	the 	public 	school 	employer
under 	the 	law. 	All 	matters 	not 	specifically
enumerated 	are 	reserved 	to 	the 	public 	school
employer 	and 	may 	not 	be 	a 	subject 	of 	meeting
and 	negotiating, 	provided 	that 	nothing
herein 	may 	be 	construed 	to 	limit 	the 	right
of 	the 	public 	school 	employer 	to 	consult
with 	any 	employees 	or 	employee 	organization
on 	any 	matter 	outside 	the 	scope 	of
representation.
The 	hearing 	officer's 	proposed 	decision 	was 	issued 	prior 	to
the 	Board's 	promulgation 	of 	a 	balancing 	test 	to 	determine
negotiability 	as 	set 	forth 	in San Mateo City 	School 	District,
(5/20/80) 	PERB 	Decision No. 	129, 	and 	reaffirmed 	and 	elaborated
upon 	in Healdsburg Union High 	School 	District 	(6/19/80) 	PERB
Decision No. 	132 	and 	Jefferson 	School 	District 	(6/19/80) 	PERB
Decision No. 	133.
In San Mateo 	City 	School 	District, 	the 	district
unilaterally 	lengthened 	the 	minimum 	teacher 	instructional 	day
and 	eliminated 	a 	30-minute 	preparation 	period 	leaving 	intact
the 	overall 	7 	1/4-hour 	workday 	and 	the 	duty-free 	lunch 	period.
As 	in 	the 	instant 	case, 	the 	San Mateo 	District 	argued 	thatr 	as
long 	as 	the 	total 	workday 	remained 	constant, 	it 	was
management's 	prerogative 	to 	alter 	teacher 	instructional 	time.
The 	Board 	rejected 	this 	argument 	and 	held:
5

[T]o the extent that a change in the length
of the teachers' instructional day affects
the length of the working day or existing
duty-free time, the subject is negotiable.
Similarly, at least to the extent that
changes in available preparation time affect
the length of the employees' workday or
duty-free time, that subject is negotiable.
[Ibid, at p. 19.]
The hearing officer's finding is in accord with San Mateo
City School District and we therefore affirm his holding that
the District violated section 3543.5(c) .
The Business Necessity Argument
The District contends that even if it made a unilateral
change about a matter within the scope of representation, it
did so because of business necessity and should, therefore, not
be found to have violated section 3543.5(c) .
In San Francisco Community College District (10/12/79) PERB
Decision No. 105, the District, citing business necessity as a
defense made unilateral changes in employment after the passage
of Proposition 13. The Board refused to allow the defense and
stated :
Even when a District is in fact confronted
by an economic reversal of unknown
proportions, it may not take unilateral
action on matters within the scope of
representation, but must bring its concerns
about these matters to the negotiating
table. An employer is under no obligation
at any time to reach agreement with the
exclusive representative. 	The duty imposed
by the statute is simply -- but
unconditionally -- the duty to meet and
negotiate in good faith on matters within
the scope of representation.
6
[T]o
	the
	extent
	that
	a
	change
	in
	the
	length
of
	the
	teachers'
	instructional
	day
	affects
the 	length
	of
	the
	working
	day
	or
	existingduty-free
	time, 	the
	subject
	is
	negotiable.
Similarly, 	at
	least
	to
	the
	extent
	that
changes
	in
	available
	preparation
	time
	affect
the 	length
	of 	the
	employees'
	workday
	or
duty-free
	time,
	that
	subject
	is
	negotiable.
[Ibid, 	at
	p.
	19.]
The
	hearing
	officer's
	finding
	is
	in
	accord 	with
	San Mateo
City
	School
	District
	and
	we
	therefore 	affirm 	his
	holding
	that
the
	District
	violated 	section
	3543.S(c).
The
	Business 	Necessity
	Argument
The
	District
	contends
	that
	even
	if
	it
	made 	a
	unilateral
change
	about
	a
	matter 	within 	the
	scope
	of
	representation,
	it
did 	so 	because 	of 	business
	necessity
	and
	should,
	therefore,
	not
be
	found
	to
	have
	violated 	section
	3543.S(c}.
In San_~rancisco
	Community Coll~~~-
District
	(10/12/79)
	PERB
Decision
	No.
	105,
	the
	District, 	citing
	business 	necessity 	as
	a
defense
	made
	unilateral
	changes
	in
	employment
	after
	the 	passage
of Proposition
	13.
	The
	Board
	ref
used
	to 	allow 	the 	defense
	and
stated:
Even 	when 	a
	District 	is
	in 	fact 	confronted
by	
an 	economic
	reversal
	of
	unknown
proportions,
	it
	may
	not 	take
	unilateralaction
	on
	matters 	within 	the 	scope 	of
representation,
	but
	must
	bring
	its
	concerns
about 	these 	matters 	to 	the 	negotiating
table.
	An
	employer
	is
	under
	no
	obligation
at
	any 	time 	to 	reach 	agreement 	with 	the
exclusive 	representative.
	The
	duty
	imposed
by 	the
	statute 	is
	simply
	--
	but
unconditionally
	--
	the 	duty 	to 	meet 	and
negotiate 	in
	good
	faith
	on
	matters 	within
the 	scope 	of 	representation.
6

The Sutter District asserted that it was obligated to
establish a curriculum that met the minimum requirements of the
Education Code, the admission requirements of the University of
California and its own self-imposed requirements. The District
argued that it could not have met these requirements except for
the imposition of a sixth period. Yet, as in San Francisco
Community College District, supra, the District's assertion of
business necessity is a position for the negotiating table
rather than an excuse for refusing to negotiate. We do not
find the District was permitted to insure that the curriculum
remain the same by unilaterally altering the length of the
teachers' instructional day. The hearing officer correctly
stated that:
A school board which knows it must make a
decision that will have impact on employee
working conditions cannot sit back until the
eleventh hour, make a unilateral decision
and then plead business necessity as a
defense.
The Remedy
The Board affirms the appropriateness of the hearing
The Board in San Mateo County Community College District
(6/8/79) PERB Decision No. 94 and in San Francisco Community
College District, supra, relied on the United States Supreme
Court decision in NLRB v. Katz (1962) 369 U. S. 736 [50 LRRM
21771. Katz stated that although generally unilateral changes
in conditions of employment about matters within scope
constitute a refusal to bargain, "there might be circumstances
which the [NLRB] could or should accept as excusing or
justifying unilateral action . 	" As in Katz, San Mateo,
and San Francisco Community College District, we find no such
circumstances presented here.
7
The
	Sutter
	District
	asserted
	that
	it
	was
	obligated
	to
establish
	a
	curriculum
	that
	met
	the
	minimum
	requirements
	of
	the
Education
	Code,
	the
	admission 	requirements
	of 	the
	University
	of
California
	and
	its
	own
	self-imposed 	requirements.
	The
	District
argued
	that
	it
	could 	not
	have
	met
	these
	requirements 	except
	for
the 	imposition 	of
	a
	sixth 	period.
	Yet,
	as
	in
	San
	Francisco
Community
College
	District,
	supra, 	the
	District's
	assertion
	of
business
	necessity
	is
	a
	position
	for
	the
	negotiating 	table
rather
	than
	an
	excuse 	for
	refusing
	to
	negotiate.5	
We
	do
	not
find
	the
	District
	was
	permitted
	to
	insure
	that
	the
	curriculum
remain
	the
	same
	by
	unilaterally 	altering
	the 	length 	of 	the
teachers' 	instructional
	day.
	The
	hearing
	officer 	correctly
stated 	that:
A
school
	board
	which
	knows
	it
	must
	make 	a
decision
	that 	will
	have 	impact
	on 	employee
working
	conditions
	cannot
	sit
	back
	until
	the
eleventh 	hour,
	make 	a
	unilateral
	decision
and
	then 	plead 	business 	necessity
	as
	a
a
efense.
The 	Remedy
The 	Board
	affirms 	the 	appropriateness
	of
	the 	hearing
5The 	Board
	in
	San Mateo 	County
Community
College
	District(6/8/79)
	PEP.B	
Decisfon-No:-94and 	in	
San Francfsc6-c6mmffnTEy"-
College
	District,
	supra, 	relied
	on
	the 	United
	States
	Supreme
Court 	decisfon 	In
	NLRB
	v. 	Katz 	(1962) 	369
	U.S.
	736 	[50
	LRRM
21771. 	Kat~
	stated 	that
	although 	generally 	unilateral
	changes
in 	conditions 	of
	employment
	about 	matters 	within 	scope
constitute
	a
	refusal 	to 	bargain, 	"there
	might 	be
	circumstanceswhich
	the
	[NLRB]
	could 	or 	should 	accept 	as 	excusing 	or
justifying 	unilateral 	action
	....
" 	As
	in 	Katz, 	San Mateo,and 	San 	Francisco
Community
College 	District,-wefind
	no
	such
circumstances 	presented 	here.
7

officer's remedy including return to the status quo ante. 6
However, the Board recognizes the possibility that the parties
may have agreed to some other schedule that is mutually
acceptable. To maximize the flexibility of the Board's order ,
we expressly leave with the Association the right to waive the
requirement that the District reinstate the five-period
schedule. 7
The Board further orders that the parties return to the
negotiating table, should the Association so request, to
negotiate with respect to the teachers' instructional day and
preparation time.
The District shall also be required to sign and post the
Notice to Employees attached as Appendix to this Decision and
Order.
To effectuate the policies and purposes of the EERA the
employees affected by the District's unlawful conduct should be
6The Board's remedial authority is found in section
3541.5(c) . Section 3541.5(c) provides:
The board shall have the power to issue a
decision and order directing an offending
party to cease and desist from the unfair
practice and to take such affirmative
action, including but not limited to the
reinstatement of employees with or without
back pay, as will effectuate the policies of
this chapter.
See San Mateo City School District, supra, at
page 25 for a similar remedy.
8
officer's 	remedy 	including 	return 	to 	the 	status 	quo 	ante.6
However, 	the 	Board 	recognizes 	the 	possibility 	that 	the 	parties
may 	have 	agreed 	to 	some 	other 	schedule 	that 	is 	mutually
acceptable. 	To 	maximize 	the 	flexibility 	of 	the 	Board's 	order,
we 	expressly 	leave 	with 	the 	Association 	the 	right 	to 	waive 	the
requirement 	that 	the 	District 	reinstate 	the 	five-period
schedule. 7
The 	Board 	further 	orders 	that 	the 	parties 	return 	to 	the
negotiating 	table, 	should 	the 	Association 	so 	request, 	to
negotiate 	with 	respect 	to 	the 	teachers' 	instructional 	day 	and
preparation 	time.
The 	District 	shall 	also 	be 	required 	to 	sign 	and 	post 	the
Notice 	to 	Employees 	attached 	as 	Appendix 	to 	this 	Decision 	and
Order.
To 	effectuate 	the 	policies 	and 	purposes 	of 	the EERA 	the
employees 	affected 	by 	the 	District's 	unlawful 	conduct 	should 	be
6The 	Board's 	remedial 	authorit¥ 	is 	found 	in 	section
3541.5(c). 	Section 	3541.S(c) 	provides:
The 	board 	shall 	have 	the 	power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with 	or 	without
back 	pay, 	as 	will 	effectuate 	the 	policies 	of
this 	chapter.
7see 	San Mateo City 	School 	District, 	s 	ra, 	at
page 	25 	for 	a 	s1m1lar 	remedy.
8

notified of the Board's order of the District's readiness to
comply. Posting the attached Notice to Employees will satisfy
this purpose.
ORDER
Upon the foregoing facts, conclusions of law, and entire
record in this case, and pursuant to Government Code section
3541.5(c), it is hereby ORDERED that the Sutter Union High
School District and its representatives shall:
A. 	CEASE AND DESIST FROM:
(1) Failing and refusing to meet and negotiate in
good faith with the Sutter Education Association
with respect to teacher preparation and the
teacher instructional day;
(2) 	Unilaterally changing the hours of employment,
including length of the teachers' instructional
day and preparation time without negotiating with
the Sutter Education Association.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
(1) Reinstate the schedules with respect to
preparation time and the five-period
instructional day that were in effect prior to
July 10, 1978, if the Association so requests.
notified
	of
	the
	Board's 	order
	of 	the
	District's
	readiness
	to
comply.
	Posting 	the
	attached
	Notice
	to
	Employees
	will
	satisfy
th
is
	purpose.
ORDER
Upon
	the 	foregoing
	facts,
	conclusions
	of
	law,
	and
	entire
record
	in
	this
	case,
	and
	pursuant 	to
	Government
	Code
	section
3541.S(c),
	it
	is
	hereby
	ORDERED
	that
	the
	Sutter
	Union High
School
	District
	and
	its
	representatives
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
(1)	
Failing
	and
	refusing
	to
	meet
	and
	negotiate 	in
good
	faith
	with
	the
	Sutter
	Education
	Association
with
	respect
	to
	teacher 	preparation
	and
	the
teacher
	instructional	
day;
(2)	
Unilaterally
	changing 	the 	hours 	of 	employment,
including 	length 	of 	the 	teachers'
	instructional
day
	and
	preparation
	time
	without
	negotiating
	with
the
	Sutter
	Education
	Association.
B.
	TAKE
	THE
	FOLLOWING
	AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	EDUCATIONAL
	EMPLOYMENT
RELATIONS 	ACT:
(1)	
Reinstate 	the 	schedules 	with
	respect 	to
preparation
	time 	and
	the 	five-period
instructional
	day
	that
	were
	in
	effect 	prior 	to
July 	10, 	1978,
	if
	the 	Association
	so
	requests.
9

(2) Upon request, meet and negotiate in good faith
with the Sutter Education Association with
respect to preparation time and a five-period
instructional day.
(3) Post copies of the attached Notice marked
"Appendix" in conspicuous places where notices to
employees are customarily placed at its
headquarter's office and at each of its school
sites for 20 consecutive workdays. Copies of
this notice, after being duly signed by the
authorized agent of the District, shall be posted
within five workdays of the date of service of
this Decision. Reasonable steps should be taken
to insure that said notices are not reduced in
size, altered, defaced or covered by any other
material.
(4) 	Notify the Sacramento regional director of the
Public Employment Relations Board in writing
within 30 workdays from the receipt of this
decision, of what steps the District has taken to
comply herewith.
This order shall become effective immediately upon service
of a true copy thereof on the Sutter Union High School District.
By: Barbara D. Moore, Member 	Harry Gluck, Chairperson
Irene Tovar , Member
10
(2) 	Upon 	request, 	meet 	and 	negotiate 	in 	good 	faith
with 	the 	Sutter 	Education Association 	with
respect 	to 	preparation 	time 	and 	a 	five-period
instructional 	day.
(3) 	Post 	copies 	of 	the 	attached 	Notice 	marked
"Appendix" 	in 	conspicuous 	places 	where 	notices 	to
employees 	are 	customarily 	placed 	at 	its
headquarter's 	office 	and 	at 	each 	of 	its 	school
sites 	for 	20 	consecutive 	workdays. 	Copies 	of
this 	notice, 	after 	being 	duly 	signed 	by 	the
authorized 	agent 	of 	the 	District, 	shall 	be 	posted
within 	five 	workdays 	of 	the 	date 	of 	service 	of
this 	Decision. 	Reasonable 	steps 	should 	be 	taken
to 	insure 	that 	said 	notices 	are 	not 	reduced 	in
size, 	altered, 	defaced 	or 	covered 	by 	any 	other
material.
(4) 	Notify 	the 	Sacramento 	regional 	director 	of 	the
Public Employment 	Relations Board 	in 	writing
within 	30 	workdays 	from 	the 	receipt 	of 	this
decision, 	of 	what 	steps 	the 	District 	has 	taken 	to
comply herewith.
This 	order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	Sutter 	Union High 	School 	District.
~
B 7:JBa r bar a 	D • 	Moore;-'-.M ember 	rlu.ck~Ch air pe f"S on
I re'ti-e 	Tovar, 	Member
10
I

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in unfair practice case No. S-CE-182, in
which all parties had the right to participate, it has been
found that the Sutter Union High School District violated the
Educational Employment Relations Act by failing and refusing to
meet and negotiate with the Sutter Education Association with
respect to preparation time and changes in the length of the
teachers' instructional day. As a result of this conduct, we
have been ordered to post this notice and we will abide by the
following :
WE WILL NOT fail or refuse, upon request, to meet and
negotiate with the Sutter Education Association with respect to
teacher preparation and the teacher instructional day.
WE WILL NOT fail or refuse, upon request of the Sutter
Education Association, to reinstate the schedules with respect
to preparation time and the five-period instructional day that
were in effect prior to July 10, 1978.
APPENDIX
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of
	the
	State
	of
	California
After
	a
	hearing
	in
	unfair
	practice
	case
	No.
	S-CE-182,
	in
which
	all
	parties
	had
	the
	right
	to
	participate,
	it
	has
	been
found
	that
	the
	Sutter
	Union 	High
	School
	District
	violated 	the
Educational
	Employment
	Relations
	Act
	by
	failing
	and
	refusing 	to
meet
	and
	negotiate
	with 	the
	Sutter
	Education
	Association 	with
respect
	to
	preparation
	time
	and
	changes
	in 	the
	length 	of
	the
teachers'
	instructional
	day.
	As 	a
	result
	of
	this
	conduct,
	we
have
	been
	ordered 	to
	post
	this
	notice
	and
	we
	will
	abide
	by
	the
following:
WE
	WILL
	NOT
	fail
	or
	refuse,
	upon
	request,
	to
	meet
	and
negotiate
	with 	the
	Sutter
	Education 	Association 	with
	respect 	to
teacher 	preparation
	and
	the 	teacher
	instructional
	day.
WE
	WILL
	NOT
	fail
	or
	refuse,
	upon
	request 	of 	the
	Sutter
Education 	Association, 	to
	reinstate
	the 	schedules 	with
	respect
to
	preparation
	time
	and
	the
	five-period 	instructional
	day
	that
were
	in
	effect 	prior
	to 	July
	10, 	1978.

WE WILL NOT CHANGE the wages, hours of employment, or other
terms and conditions of employment without negotiating with the
Sutter Education Association.
Sutter Union High School District
By:
Dated :
WE 	WILL 	Nor 	CHANGE 	the 	wages, 	hours 	of 	employment, 	or 	other
terms 	and 	conditions 	of 	employment 	without 	negotiating 	with 	the
Sutter 	Education Association.
Sutter 	Union High 	School 	District
By:
Dated:

000 1S
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
SUTTER EDUCATION ASSOCIATION,
Unfair Practice
Charging Party, 	Case No. S-CE-182-78/79
PROPOSED DECISION
V . (May 25, 1979)
SUTTER UNION HIGH SCHOOL DISTRICT,
Respondent.
Appearances: Wayne T. Carothers, Consultant, California Teachers
Association, for the Sutter Education Association; Jon A. Hudak,
Attorney (Breon, Galgani & Godino), for the Sutter Union High
School District.
Before Ronald E. Blubaugh, Hearing Officer
PROCEDURAL HISTORY
This case raises the issue of whether a school district
committed an unlawful act by requiring its staff to teach six
periods each day rather than five periods, as in the preceding
year .
The Sutter Education Association (hereafter Association)
filed this unfair practice charge against the Sutter Union
High School District (hereafter District) on October 3, 1978.
The charge alleges that the District unilaterally changed
working conditions in violation of Government Code section
00046
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
STATE
	OF
	CALIFORNIA
SUTTER EDUCATION ASSOCIATION,
Charging
	Party,
V.
SUTTER
	UNION
	HIGH
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
___________________
) 
Unfair
	Practice
Case
	No.
	S-CE-182-78/79
PROPOSED 	DECISION
(May
	25, 	1979)
Appearances:	
Wayne
	T.
	Carothers, 	Consultant,
	California
	Teachers
Association 	for 	the
	Sutter
	Education
Association;
	Jon
	A.
	Hudak,
Attorney
	(B~eon,
	Galgani	
&	
Godino),
	for 	the
	Sutter
	Union
	High
School
	District.
Before
	Ronald
	E.
	Blubaugh,
	Hearing
	Officer
PROCEDURAL
	HISTORY
This
	case
	raises
	the 	issue 	of
	whether
	a
	school
	district
committed 	an
	unlawful
	act
	by
	requiring
	its 	staff
	to 	teach
	six
periods
	each
	day
	rather
	than
	five 	periods,
	as
	in 	the 	preceding
year.
The
	Sutter
	Education Association 	(hereafter Association)
filed 	this 	unfair 	practice
	charge 	against 	the 	Sutter
	Union
High 	School
	District 	(hereafter 	District)
	on 	October 	3, 	1978.
The
	charge 	alleges 	that 	the 	District 	unilaterally
	changed
working 	conditions 	in 	violation 	of
	Government 	Code
	section
00046

00047
3543. 5(a), (b) and (c) . ! A settlement conference was held
on October 25, 1978 but the parties were unable to reach
agreement. A formal hearing was conducted on December 4 and
5, 1978 at the Sacramento Regional Office of the Public
Employment Relations Board (hereafter PERB) .
At the start of the hearing, the Association amended
its charge to drop the allegation that the District's
actions were a violation of Government Code section
3543.5(a) and (b) .
FINDINGS OF FACT
The Sutter Union High School District contains one
school, Sutter High School. In 1978-79, the school had an
average daily attendance of approximately 540 students.
Since May of 1976, the Association has been the exclusive
representative of a unit of the District's certificated
employees .
Government Code section 3543.5 provides as follows :
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) .
3543.5(a), 	(b) 	and 	(c). 1 	A settlement 	conference was 	held
on 	October 	25, 	1978 	but 	the 	parties 	were 	unable 	to 	reach
agreement. 	A formal 	hearing was 	conducted 	on 	December 	4 	and
5, 	1978 	at 	the 	Sacramento 	Regional 	Office 	of 	the 	Public
Employment 	Relations 	Board 	(hereafter 	PERB).
At 	the 	start 	of 	the 	hearing, 	the 	Association 	amended
its 	charge 	to 	drop 	the 	allegation 	that 	the 	District's
actions 	were 	a 	violation 	of 	Government 	Code 	section
3543.5(a) 	and 	(b).
FINDINGS 	OF 	FACT
The 	Sutter 	Union High 	School 	District 	contains 	one
school, 	Sutter High 	School. 	In 	1978-79, 	the 	school 	had 	an
average 	daily 	attendance 	of 	approximately 	540 	students.
Since May 	of 	1976, 	the 	Association has 	been 	the 	exclusive
representative 	of 	a 	unit 	of 	the 	District's 	certificated
employees.
1 Government 	Code 	section 	3543.5 	provides 	as 	follows:
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).

Over the years, Sutter High School teachers have been re-
quired to teach variously five, six or seven periods, daily. 	A
period is a block of time, currently set at 45 minutes in the
District. 	When the teachers have had a five-period instructional
schedule, they have been required each day to teach five classes
of students. When the teachers have had a six-period day, they
have been required each day to teach six classes of students.
Some years ago, the District's teachers were required to teach
seven periods each day. However, for at least the four years
preceding the 1978-79 school year the District's teachers have
had a five-period instructional day.
In the 1977-78 school year, the daily instruction of
students took place over six teaching periods. Each teacher
was required to teach five of those six periods. The
instructional day during 1977-78 was broken down as follows:
period one, 8:45 a.m. to 9:30 a.m. ; period two, 9:35 to
10:20; period three, 10:35 to 11:20; period four, 11:25 to
12:10 p.m. ; period five, 12:55 to 1:40, and period six,
1:45 to 2:30. The nonteaching periods of individual teachers
were staggered throughout the day. Teachers occasionally
were required to use their nonteaching period to serve as a
substitute for another teacher who was absent. Teachers also
occasionally were required to use their nonteaching period
to have a conference with the parent of a student. For the
most part, however, this nonteaching period was used by
teachers to grade papers, write exams and prepare for their
classes.
The 1977-78 schedule also provided for a student
activity period at the end of the school day, from 2:35 p. m.
00048
Over 	the 	years, 	Sutter 	High 	School 	teachers 	have 	been 	re-
quired 	to 	teach variously 	five, 	six 	or 	seven 	periods, 	da~ly. 	A
period 	is 	a 	block 	of 	time, 	currently 	set 	at 	45 	minutes 	in:' 	the
District. 	When 	the 	teachers 	have 	had 	a 	five-period 	instructional
schedule, 	they 	have 	been 	required 	each 	day 	to 	teach 	five 	classes
of 	students. 	When 	the 	teachers 	have 	had 	a 	six-period 	day, 	they
have 	been 	required 	each 	day 	to 	teach 	six 	classes 	of 	students.
Some 	years 	ago, 	the 	District's 	teachers 	were 	required 	to 	teach
seven 	periods 	each 	day. 	However, 	for 	at 	least 	the 	four 	years
preceding 	the 	1978-79 	school 	year 	the 	District's 	teachers 	have
had 	a 	five-period 	instructional 	day.
In 	the 	1977-78 	school 	year, 	the 	daily 	instruction 	of
students 	took 	place 	over 	six 	teaching 	periods. 	Each 	teacher
was 	required 	to 	teach 	five 	of 	those 	six 	periods. 	The
instructional 	day 	during 	1977-78 	was 	broken 	down 	as 	follows:
period 	one, 	8:45 	a.m. 	to 	9:30 	a.m.; 	period 	two, 	9:35 	to
10:20; 	period 	three, 	10:35 	to 	11:20; 	period 	four, 	11:25 	to
12:10 	p.m.; 	period 	five, 	12:55 	to 	1:40, 	and 	period 	six,
1:45 	to 	2:30. 	The 	nonteaching 	periods 	of 	individual 	teachers
were 	staggered 	throughout 	the 	day. 	Teachers 	occasionally
were 	required 	to 	use 	their 	nonteaching 	period 	to 	serve 	as 	a
substitute 	for 	another 	teacher who 	was 	absent. 	Teachers 	also
occasionally were 	required 	to 	use 	their 	nonteaching 	period
to 	have 	a 	conference with 	the 	parent 	of 	a 	student. 	For 	the
most 	part, 	however, 	this 	nonteaching 	period was 	used by
teachers 	to 	grade 	papers, 	write 	exams 	and 	prepare 	for 	their
classes.
The 	1977-78 	schedule 	also 	provided 	for 	a 	student
activity 	period 	at 	the 	end 	of 	the 	school 	day, 	from 	2:35 	p.m.

00049
to 3:15 p.m. During this period, teachers were required
to remain in their classrooms and assist any students in
need of help. When no students were present, teachers used
the activity period as additional preparation time.
In 1977-78, teachers were required to be present at
school from 8:15 a.m. until 3:45 p.m. Teachers were required
to be in their classrooms at 8:30 a.m. but had no particular
assigned duties until the start of their first class.
Although teachers technically were required to be present
until 3:45 p.m. every day, it was an established practice
that they usually were free to leave after 2:30 p.m. on
Fridays. In some emergency situations, teachers have been
required to stay at school after 4 p.m.
In March of 1978, the District announced plans to
reduce its teaching staff by six employees for the 1978-79
school year. 	The District had 26 teachers in the 1977-78
school year. For the 1978-79 school year, the District
employed 20.5 teachers. In conjunction with this reduction
in teaching staff, the District announced that it would
eliminate some 32 class sections formerly open to students.
On May 10, 1978, the District teachers conducted what they
described as a "Public Forum." This session was a public
meeting at which teachers and members of the community
expressed their reactions to the reductions. Teachers
attending the session complained that the layoff and
reduction of program would injure the quality of education
in the District.
0009
00049
to 	3:15 	p.m. 	During 	this 	period, 	teachers 	were 	required
to 	remain 	in 	their 	classrooms 	and 	assist 	any 	students 	in
need 	of 	help. 	When no 	students 	were 	present, 	teachers 	used
the 	activity 	period 	as 	additional 	preparation 	time.
In 	1977-78, 	teachers 	were 	required 	to 	be 	present 	at
school 	from 	8:15 	a.m. 	until 	3:45 	p.m. 	Teachers 	were 	required
to 	be 	in 	their 	classrooms 	at 	8:30 	a.m. 	but 	had 	no 	particular
assigned 	duties 	until 	the 	start 	of 	their 	first 	class.
Although 	teachers 	technically were 	required 	to 	be 	present
until 	3:45 	p.m. 	every 	day, 	it was 	an 	established 	practice
that 	they 	usually were 	free 	to 	leave 	after 	2:30 	p.m. 	on
Fridays. 	In 	some 	emergency 	situations, 	teachers 	have 	been
required 	to 	stay 	at 	school 	after 	4 	p.m.
In March 	of 	1978, 	the 	District 	announced 	plans 	to
reduce 	its 	teaching 	staff 	by 	six 	employees 	for 	the 	1978-79
school 	year. 	The 	District 	had 	26 	teachers 	in 	the 	1977-78
school 	year. 	For 	the 	1978-79 	school 	year, 	the 	District
employed 	20.5 	teachers. 	In 	conjunction with 	this 	reduction
in 	teaching 	staff, 	the 	District 	announced 	that 	it would
eliminate 	some 	32 	class 	sections 	formerly 	open 	to 	students.
On 	May 	10, 	1978, 	the 	District 	teachers 	conducted what 	they
described 	as 	a 	"Public 	Forum." 	This 	session was 	a 	public
meeting 	at 	which 	teachers 	and members 	of 	the 	community
expressed 	their 	reactions 	to 	the 	reductions. 	Teachers
attending 	the 	session 	complained 	that 	the 	layoff 	and
reduction 	of 	program would 	injure 	the 	quality 	of 	education
in 	the 	District.

The agenda for the June 28, 1978 board of trustees
meeting presented the first indication that the District
might require its teachers to teach six daily periods in
1978-79. Toward the bottom of the agenda was this entry:
"Investigate six-period teaching day."
In the early portion of the June 28 meeting, the
board of trustees ratified a contract with the Association
for a two-year term, extending through June 30, 1980. Later,
the board of trustees approved a motion directing the
District administration to "investigate the possibility of
having a six-period day." After the board approved the
motion, District Superintendent Wayne Gadberry asked
Association President Vernon Brewer to select an Association
member to discuss the issue.
While the school board's action was couched in terms
of a directive to "investigate," there is substantial
evidence that if the board had not already decided to have
a six-period teaching day, it was leaning strongly in that
direction. Russell Mayfield, a parent who attended the
meeting, testified that on June 28 he told the board members
that he believed the issue of a six-period day already had
been decided behind closed doors. Mr. Mayfield testified
that after he made that remark, board member "Bruce Harter
responded directly to that in a rather heated manner that,
yes, in fact the issue had been decided and we were going to
have a six-period teaching day in the coming school year."
00050
The 	agenda 	for 	the 	June 	28, 	1978 	board 	of 	trustees
meeting 	presented 	the 	first 	indication 	that 	the 	District
might 	require 	its 	teachers 	to 	teach 	six 	daily 	periods 	in
1978-79. 	Toward 	the 	bottom of 	the 	agenda was 	this 	entry:
"Investigate 	six-period 	teaching 	day."
In 	the 	early 	portion 	of 	the 	June 	28 	meeting, 	the
board 	of 	trustees 	ratified 	a 	contract with 	the Association
for 	a 	two-year 	term, 	extending 	through 	June 	30, 	1980. 	Later,
the 	board 	of 	trustees 	approved 	a 	motion 	directing 	the
District 	administration 	to 	"investigate 	the 	possibility 	of
having 	a 	six-period 	day." 	After 	the 	board 	approved 	the
motion, 	District 	Superintendent Wayne 	Gadberry 	asked
Association 	President 	Vernon 	Brewer 	to 	select 	an Association
member 	to 	discuss 	the 	issue.
While 	the 	school 	board's 	action was 	couched 	in 	terms
of 	a 	directive 	to 	"investigate:," 	there 	is 	substantial
evidence 	that 	if 	the 	board 	had 	not 	already 	decided 	to 	have
a 	six-period 	teaching 	day, 	it was 	leaning 	strongly 	in 	that
direction. 	Russell 	Mayfield, 	a 	parent who 	attended 	the
meeting, 	testified 	that 	on 	June 	28 	he 	told 	the 	board members
that 	he 	believed 	the 	issue 	of 	a 	six-period 	day 	already 	had
been 	decided 	behind 	closed 	doors. 	Mr. 	Mayfield 	testified
that 	after 	he made 	that 	remark, 	board member 	"Bruce 	Harter
responded 	directly 	to 	that 	in 	a 	rather 	heated manner 	that,
yes, 	in 	fact 	the 	issue 	had 	been 	decided 	and we were 	going 	to
have 	a 	six-period 	teaching 	day 	in 	the 	coming 	school 	year."
00050	00050

00051
Association member Raymond Arata, a District teacher
of mathematics, volunteered to serve on the superintendent's
committee to investigate the six-period teaching day. Prior
to the start of the committee deliberations, Association
President Brewer told Mr. Arata that he was not empowered to
negotiate on behalf of the Association but rather he was just
"giving input to the District." Mr. Arata testified that the
District also made it clear that he was just to give "input."
District Superintendent Gadberry testified that he refused an
Association request that the Association's entire negotiating
committee be involved in the discussions.
Present at the first session of the committee on the
morning after the June 28 board meeting were Mr. Arata,
Superintendent Gadberry and Robert Sowell, the District's
director of guidance who is a member of the District management
team. 	Mr. Arata initially proposed a schedule for a five-period
teaching day which would have required the rehiring of two or
three teachers. However, Mr. Sowell responded that the
committee was working under guidelines from the board of trustees
which precluded the rehiring of any teachers.
After this discussion, Superintendent Gadberry read to
the committee the following guidelines which had been prepared
on the basis of instructions from the board:
With 20 teachers teaching six periods a day
with the conference period at the end of the
day we can offer the following:
1. All State and Local requirements can
be met.
2. All State College and University require-
ments can be met.
00052
0005:t
Association member 	Raymond Arata, 	a 	District 	teacher
of mathematics, 	volunteered 	to 	serve 	on 	the 	superintendent's
committee 	to 	investigate 	the 	six-period 	teaching 	day. 	Prior
to 	the 	start 	of 	the 	committee 	deliberations, 	Association
President 	Brewer 	told Mr. 	Arata 	that 	he 	was 	not 	empowered 	to
negotiate 	on 	behalf 	of 	the 	Association 	but 	rather 	he was 	just
"giving 	input 	to 	the 	District." 	Mr. 	Arata 	testified 	that 	the
District 	also 	made 	it 	clear 	that 	he was 	just 	to 	give 	"input."
District 	Superintendent 	Gadberry 	testified 	that 	he 	refused 	an
Association 	request 	that 	the 	Association's 	entire negotiating
committee 	be 	involved 	in 	the 	discussions.
Present 	at 	the 	first 	session 	of 	the 	committee 	on 	the
morning 	after 	the 	June 	28 	board meeting were Mr. 	Arata,
Superintendent 	Gadberry 	and 	Robert 	Sowell, 	the 	District's
director 	of 	guidance who 	is 	a 	member 	of 	the 	District 	management
team. 	Mr. 	Arata 	initially 	proposed 	a 	schedule 	for 	a 	five-period
teaching 	day which would 	have 	required 	the 	rehiring 	of 	two 	or
three 	teachers. 	However, 	Mr. 	Sowell 	responded 	that 	the
committee was 	working 	under 	guidelines 	from 	the 	board 	of 	trustees
which 	precluded 	the 	rehiring 	of 	any 	teachers.
After 	this 	discussion, 	Superintendent 	Gadberry 	read 	to
the 	committee 	the 	following 	guidelines 	which 	had 	been 	prepared
on 	the 	basis 	of 	instructions 	from 	the 	board:
With 	20 	teachers 	teaching 	six 	periods 	a 	day
with 	the 	conference 	period 	at 	the 	end 	of 	the
day we 	can 	offer 	the 	following:
1. 	All 	State 	and 	Local 	requirements 	can
be met.
2. 	All 	State 	College 	and 	University 	require-
ments 	can 	be 	met.

3. 	Between scheduled classes and contracted
R. O.P. classes all reasonable student interest 00052can be met.
4. Psychology can be reinstated in the
curriculum during the Spring Semester
5. Physics can be reinstated into the
curriculum.
6. A second section of Chemistry can be
reinstated into the curriculum.
7. R. O. P. and Work Experience counselling
periods can be reinstated.
8. Three periods of Opportunity on campus
can be offered or two periods of Opportunity
and one period of counselling.
9. 	Ag department can be reinstated to full
time with a project supervision-VEA
period.
10. We can offer a second section of
Spanish II.
11. The Journalism Paper and Journalism
Yearbook classes can be reinstated to the
teaching day
12. We can expand upon our lower level Math
by changing Intermediate Math to a year
course.
13. We can introduce a second semester of
State Requirements which would be a course
in Health and Hygiene.
Mr. Gadberry and Mr. Sowell testified that the guidelines
were designed to insure that the District's 1978-79 educational
program would meet the requirements of the Education Code,
the admission requirements of the University of California
and the District's own educational objectives. The District's
educational objectives include requirements that all students
complete four semesters of science and two years of math.
Mr. Sowell said these requirements are greater than those of
most school districts. The District also has its own higher
00052
3.
	Between
	scheduled
	classes
	and
	contracted
R.0.P.
	classes
	all
	reasonable 	student
	interest
can be met.
4. 	Psychology 	can
	be
	reinstated
	in
	thecurriculum 	during 	the
	Spring 	Semester.
5.
	Physics
	can be
	reinstated
	into
	thecurriculum.
6.
	A
	second
	section 	of
	Chemistry
	can 	be
reinstated
	into
	the
	curriculum.
7.
	R.0.P.
	and
	Work
	Experience
	counsellingperiods
	can 	be
	reinstated.
8. 	Three
	periods
	of
	Opportunity
	on
	campus
can 	be
	offered 	or
	two
	periods
	of
	Opportunity
and
	one
	period 	of 	counselling.
9.
	Ag
	department
	can 	be
	reinstated
	to
	full
time
	with
	a
	project
	supervision-VEA
period.
10.
	We
	can
	offer
	a
	second
	section 	of
Spanish
	II.
11.
	The
	Journalism
	Paper
	and
	Journalism
Yearbook
	classes
	can be
	reinstated
	to 	the
teaching
	day.
12.
	We
	can 	expand
	upon
	our 	lower
	level
	Math
by
	changing
	Intermediate
	Math
	to
	a
	year
course.
13.
	We
	can
	introduce
	a
	second 	semester 	of
State
	Requirements 	which would 	be
	a
	course
in Health
	and 	Hygiene.
00052
Mr.
	Gadberry 	and
	Mr.
	Sowell
	testified
	that
	the 	guidelines
were 	designed 	to 	insure 	that
	the
	District's
	1978-79
	educational
program would meet
	the 	requirements 	of 	the 	Education
	Code,
the 	admission 	requirements 	of 	the 	University 	of 	California
and
	the
	District's
	own
	educational 	objectives.
	The
	District's
educational 	objectives 	include 	requirements 	that 	all
	students
complete 	four 	semesters 	of 	science
	and 	two
	years 	of
	math.
Mr. 	Sowell 	said 	these 	requirements 	are 	greater 	than 	those 	of
most 	school 	districts.
	The
	District 	also 	has
	its
	own
	higher
00052

00053
requirements in social science.
Mr. Arata testified that it was impossible to assemble
a class schedule which met the various requirements and
still kept a five-period day and a teaching staff of 20.
Given the requirements, he testified, a six-period teaching
day was the only possibility. Mr. Gadberry said there were
other approaches than the six-period day to deal with the
reduction in teaching staff, but these were not considered
by the committee because they did not meet the guidelines
from the board of trustees.
On July 10, 1978, the District Board of Trustees
directed that the District should have a six-period teaching
day in the 1978-79 school year. Eleven of the District's
20 teachers attended the session where this decision was
made and several of them spoke in opposition to the plan.
The meeting lasted more than four hours and the principal
subject of discussion was the proposal for a sixth period.
As a result of the opposition of the teachers to the addition
of a sixth teaching period, one member of the Board of
Trustees proposed a reduction in the student activity period
from 40 minutes to 20 minutes in the 1978-79 school year.
The teachers who spoke at the meeting found the 20-minute
reduction in the activity period to be the most acceptable
of the various six-period schedules under consideration.
On July 12, 1978, Association President Brewer wrote
a letter to the chairman of the District Board of Trustees
asking why the District enacted the six-period teaching
day without negotiating. He asked that the District meet
requirements
	in
	social
	science.
Mr.
	Arata
	testified
	that
	it
	was
	impossible 	to 	assemble
a
	class
	schedule
	which
	met
	the 	various
	requirements
	and
still
	kept
	a
	five-period
	day 	and
	a
	teaching
	staff
	of
	20.
Given
	the 	requirements,
	he
	testified,
	a
	six-period 	teaching
day
	was
	the
	only
	possibility.
	Mr.
	Gadberry
	said 	there
	were
other
	approaches
	than
	the
	six-period
	day
	to 	deal 	with 	the
reduction 	in
	teaching
	staff,
	but 	these
	were
	not 	considered
by
	the
	committee
	because 	they 	did 	not
	meet
	the
	guidelines
from
	the
	board
	of
	trustees.
On
	July
	10,
	1978,
	the
	District
	Board
	of
	Trustees
directed 	that
	the
	District
	should
	have
	a
	six-period 	teaching
day
	in 	the
	1978-79
	school
	year.
	Eleven
	of
	the
	District's
20
	teachers 	attended 	the 	session
	where
	this
	decision
	was
made
	and
	several 	of
	them
	spoke
	in
	opposition
	to
	the 	plan.
The
	meeting
	lasted
	more
	than 	four
	hours
	and
	the
	principal
subject 	of 	discussion
	was
	the 	proposal 	for
	a
	sixth
	period.
As 	a
	result
	of 	the 	opposition 	of 	the 	teachers 	to 	the
	addition
of
	a
	sixth
	teaching 	period,
	one
	member
	of
	the
	Board
	of
Trustees
	proposed
	a
	reduction 	in 	the 	student
	activity
	period
from
	40
	minutes 	to
	20
	minutes
	in 	the
	1978-79
	school 	year.
The
	teachers
	who
	spoke
	at
	the meeting 	found
	the 	20-minute
reduction 	in 	the
	activity
	period 	to 	be
	the
	most
	acceptable
of 	the 	various 	six-period 	schedules 	under 	consideration.
On
	July 	12, 	1978,
	Association 	President
	Brewer
	wrote
a
	letter
	to 	the 	chairman 	of 	the 	District
	Board
	of 	Trustees
asking
	why
	the 	District 	enacted 	the 	six-period 	teaching
day without 	negotiating.
	He
	asked 	that 	the 	District
	meet

and negotiate with the Association on July 20. On July 28 , 1969054
Association President Brewer again wrote to the chairman of
the board of trustees, complaining about the institution of a
six-period day. The District did not respond to either letter.
On August 19, 1978, Association representative Tommie
Rounsaville wrote Superintendent Gadberry and complained that
the six-period teaching day was a violation of the contract
between the parties. She asked for an informal conference to
discuss the problem. On August 30, 1978, Superintendent
Gadberry denied the grievance.
During the 1978-79 school year, the District's teachers
reported to work at 8:15 a.m. and were free to depart at 3:45
p. m. 	These hours were the same as in the previous year. The
beginning and ending times of the six class periods also were the
same as they were in 1977-78. However, in 1978-79, each teacher
taught six periods instead of five. In 1978-79, the student
activity period extended from 2:35 p.m. until 2:55 p.m. 	The
teachers each had a nonteaching period from 3:00 p.m. until 3:45
p. m.
With regard to the nonteaching period, the contract
between the parties provides as follows:
Teachers shall have one period set aside for
preparation, planning, conferences and other
school-related duties, except in cases of
emergencies, to cover other teachers' classes,
etc. 	The administration shall make every
effort to insure equitable distribution of
covering classes within each conference period.
During 1978-79, faculty meetings occurred during the
nonteaching period at the conclusion of the day. Faculty
meetings occur about once each month. On days on which
there was a faculty meeting, teachers lost use of their
nonteaching period. 0905A
and
	negotiate
	with 	the 	Association
	on
	July
	20.
	On
	July
	28,
19CDOS4:
Association 	President
	Brewer
	again
	wrote
	to 	the
	chairman
	of
the
	board
	of
	trustees,
	complaining 	about
	the
	institution 	of
	a
six-period
	day.
	The
	District
	did 	not
	respond 	to
	either
	letter.
On
	August
	19, 	1978,
	Association
	representative
	Tommie
Rounsaville 	wrote 	Superintendent
	Gadberry
	and
	complained
	that
the
	six-period
	teaching
	day
	was
	a
	violation
	of
	the
	contract
between
	the
	parties.
	She
	asked
	for
	an
	informal 	conference 	to
discuss 	the
	problem.
	On
	August
	30,
	1978,
	Superintendent
Gadberry
	denied 	the 	grievance.
During
	the
	1978-79
	school
	year. 	the
	District
1 s
	teachers
reported
	to
	work
	at
	8:15
	a.m. 	and
	were
	free
	to 	depart
	at
	3:45
p.m.
	These
	hours
	were
	the
	same
	as
	in
	the 	previous 	year.
	The
beginning
	and
	ending 	times
	of 	the
	six 	class
	periods 	also
	were 	the
same
	as 	they
	were
	in
	1977-78.
	However,
	in
	1978-79, 	each
	teacher
taught
	six
	periods 	instead 	of 	five.
	In
	1978-79,
	the
	student
activity
	period
	extended
	from
	2:35 	p.m.
	until
	2:55 	p.m. 	The
teachers
	each
	had
	a
	nonteaching 	period
	from 	3:00 	p.m.
	until
	3:45
p.m.
With
	regard 	to 	the 	nonteaching 	period, 	the 	contract
between
	the
	parties
	provides 	as 	follows:
Teachers
	shall
	have 	one
	period 	set 	aside 	for
preparation, 	planning, 	conferences
	and
	other
school-related 	duties,
	except 	in 	cases 	of
emergencies, 	to 	cover
	other 	teachers' 	classes,
etc.
	The
	administration 	shall
	make
	every
effort
	to 	insure 	equitable 	distribution 	of
covering 	classes 	within
	each 	conference 	period.
During 	1978-79,
	faculty 	meetings 	occurred 	during 	the
nonteaching 	period 	at 	the 	conclusion 	of 	the 	day. 	Faculty
meetings 	occur 	about 	once 	each month.
	On
	days 	on 	which
there 	was 	a
	faculty 	meeting, 	teachers- lost 	use 	of 	their
nonteaching 	period. '
()!/)~it

Because of the addition of the sixth period, nearly 00055
all District teachers have more students in 1978-79 than
they did in 1977-78. For the staff members who taught in
the District both years, the total number of students
increased over the two years as follows: Adamski, 104 to
154; Arata, 138 to 154; Brewer, 29 to 52; Crabtree, 92 to
122; Crowhurst, 139 to 212; Dart, 119 to 162; Getty, 124
to 160; Grahn, 110 to 155; Green, 94 to 112; Hollingshead,
120 to 177; Jacobs, 75 to 104; Jordan, 126 to 176; Kenney,
104 to 110; Looney, 77 to 153; Lowman, 154 to 218; Rhyne,
172 to 196; Rounsaville, 93 to 157; Taylor, 78 to 97;
Whitmer, 147 to 158. The one teacher who had a decrease
was Freund, from 78 to 47.
District teachers are working longer hours in the
1978-79 school year than they did in the 1977-78 school
year. Although the witnesses found it difficult to state
precisely how much their working hours have increased,
there was unanimity among the teacher witnesses that they
have longer hours in 1978-79. Mr. Arata estimated that
the amount of time he must spend at home on school work
increased by more than two and a half hours a week in
1978-79.
The increase in the number of students through the
addition of a sixth period has, for example, lengthened
the outside-of-class paperwork that accompanies teaching.
Thomas Crowhurst, who teaches physical education and
mathematics, described the effect of the increased student
00055
000.$5	
Because
	of
	the
	addition
	of 	the
	sixth
	period,
	nearly
all
	District
	teachers
	have
	more
	students
	in
	1978-79
	than
they 	did
	in
	1977-78. 	For
	the
	staff
	members 	who
	taught
	in
the
	District
	both
	years,
	the
	total
	number
	of
	students
increased
	over
	the
	two
	years
	as
	follows:
	Adamski, 	104
	to
154;
	Arata,
	138
	to
	154; 	Brewer,
	29
	to
	52;
	Crabtree,
	92
	to
122;
	Crowhurst,
	139
	to
	212;
	Dart,
	119
	to
	162;
	Getty,
	124
to
	160; 	Grahn,
	110
	to
	155; 	Green,
	94
	to
	112;
	Hollingshead,
120
	to
	177;
	Jacobs,
	75
	to
	104;
	Jordan,
	126
	to
	176;
	Kenney,
104
	to
	110; 	Looney,
	77
	to
	153;
	Lowman, 	154
	to
	218; 	Rhyne,
172
	to
	196;
	Rounsaville,
	93
	to
	157;
	Taylor,
	78
	to
	97;
Whitmer,
	147
	to
	158.
	The
	one
	teacher
	who
	had
	a
	decrease
was
	Freund,
	from
	78
	to
	47.
District
	teachers 	are
	working
	longer
	hours
	in
	the
1978-79
	school 	year 	than 	they 	did 	in 	the
	1977-78
	school
year.
	Although
	the witnesses
	found
	it
	difficult
	to
	state
precisely
	how much
	their
	working 	hours 	have
	increased,
there
	was
	unanimity
	among
	the 	teacher 	witnesses
	that
	they
have
	longer 	hours
	in
	1978-79.
	Mr.
	Arata 	estimated
	that
the
	amount
	of
	time 	he must 	spend
	at
	home 	on
	school
	work
increased
	by more
	than
	two
	and
	a'
half
	hours
	a 	week
	in
1978-79.
The
	increase 	in 	the
	number
	of 	students 	through 	the
addition 	of
	a
	sixth 	period has, 	for
	example, 	lengthened
the 	outside-of-class
	paperwork
	that
	accompanies
	teaching.
Thomas 	Crowhurst, 	who
	teaches 	physical 	education
	and
mathematics, 	described 	the 	effect 	of 	the 	increased 	student
00055

CO056
load as follows:
[Mjost of that [increased work load] again
comes in in test correction and in recording
the scores. 	It doesn't come in in the
preparation for the test because running off
an extra ten copies doesn't probably take
more than 15 seconds, but if each time you
correct a test it takes you five minutes, then
that's another 50 minutes for ten more students.
If each time you record a grade, that takes ten
seconds, that's another 50 seconds, or a hundred
seconds for ten more students.
The addition of a sixth teaching period also has meant
that some teachers must prepare for an extra and different
course. 	Teaching an additional course increases the total
hours a teacher must spend in research, exam writing and
other preparation.
The employment contract which the parties entered on
June 28, 1978 contains the following provision on the length
of the teacher work day:
ARTICLE VI
TEACHING HOURS
A. The length of the teacher work day,
including conference time, lunch break,
morning break and the time required before
and after school, shall not exceed eight
(8) hours, except in the case of emergencies
or special situations.
Superintendent Gadberry testified that the addition of
a sixth period has not increased the amount of time teachers
must work beyond the contract limit of eight hours. He
offered his opinion that if teachers were to use all
available time within the eight hours they could complete
their duties in that period. This testimony of Mr. Gadberry
is specifically rejected because it was not based on his
recent observations. The key fact at issue is whether or not
00056
load
	as
	follows:
[M]ost
	of
	that
	[increased
	work
	load]
	again
comes
	in 	in
	test
	correction
	and
	in
	recording
the 	scores.
	It
	doesn't
	come
	in in
	the
preparation 	for
	the
	test
	because 	running
	off
an
	extra
	ten
	copies
	doesn't
	probably
	take
more
	than
	15
	seconds,
	but
	if
	each 	time
	you
correct
	a
	test
	it
	takes
	you
	five
	minutes, 	then
that's
	another
	50
	minutes
	for 	ten
	more
	students.
If
	each 	time
	you
	record
	a
	grade,
	that
	takes 	ten
seconds,
	that's
	another
	50
	seconds,
	or
	a
	hundred
seconds
	for 	ten
	more
	students.
The
	addition
	of
	a
	sixth
	teaching 	period 	also
	has
	meant
that
	some
	teachers
	must
	prepare
	for
	an
	extra
	and
	different
course.
	Teaching
	an
	additional
	course
	increases 	the
	total
hours
	a
	teacher
	must
	spend
	in 	research,
	exam
writing
	and
other 	preparation.
The
	employment
	contract
	which
	the
	parties
	entered
	on
June
	28, 	1978
	contains 	the 	following
	provision
	on
	the
	length
of 	the 	teacher
	work 	day:
ARTICLE
	VI
TEACHING
	HOURS
A.
	The
	length 	of 	the 	teacher
	work 	day,
including 	conference 	time, 	lunch 	break,
morning
	break
	and
	the
	time
	required 	before
and
	after
	school,
	shall
	not
	exceed
	eight
(8)
	hours, 	except
	in 	the 	case
	of
	emergencies
or 	special 	situations.
Superintendent
	Gadberry
	testified
	that
	the 	addition 	of
a
	sixth
	period
	has
	not 	increased 	the
	amount
	of
	time
	teachers
must 	work 	beyond
	the 	contract 	limit
	of 	eight 	hours.
	He
offered 	his 	opinion
	that
	if
	teachers
	were
	to 	use
	all
available
	time 	within 	the 	eight
	hours 	they 	could 	complete
their 	duties 	in 	that 	period. 	This 	testimony 	of
	Mr.
	Gadberry
is 	specifically 	rejected 	because
	it
	was
	not 	based 	on
	his
recent 	observations.
	The 	key
	fact 	at 	issue 	is 	whether 	or 	not
00056

teacher work hours actually increased in 1978-79 because of the
addition of the sixth period. Mr. Gadberry testified that he had
not been a teacher since 1965 or 1966. He also testified
that he cannot and has not observed how many hours District
teachers do school work at home. His personal knowledge of
what occurred 13 or more years ago is too remote to be
probative and he has no personal knowledge of how many total
hours District teachers actually were working in 1978-79.
By the addition of the sixth teaching period, the
District was able to restore 25 of the 32 class sections
which it originally had announced for elimination in the
1978-79 school year.
LEGAL ISSUES
1) Is the Association estopped from bringing this action
by its alleged failure to file a timely grievance or to make
a timely request to negotiate about the change from a
five-period teaching day to a six-period teaching day?
2) Was the District's adoption of a six-period teaching
day a unilateral change about a matter within the scope of
representation, in violation of Government Code section
3543. 5(c) ?
3) If the District's action was a unilateral change
about a matter within the scope of representation, was that
action excused by a business necessity?
057
teacher
	work
	hours
	actually
	increased 	in
	1978-79
	because
	of
	the
addition 	of
	the
	sixth
	period.
	Mr.
	Gadberry
	testified
	that
	he
	had
not
	been
	a
	teacher 	since
	1965
	or
	1966.
	He
	also
	testified
that
	he
	cannot
	and
	has
	not
	observed
	how
many
	hours
	District
teachers
	do
	school
	work
	at
	home.
	His
	personal
	knowledge
	of
what
	occurred
	13
	or
	more
	years
	ago
	is
	too 	remote
	to
	be
probative
	and 	he
	has
	no
	personal
	knowledge
	of
	how
many
	total
hours
	District
	teachers
	actually
	were working
	in
	1978-79.
By
	the
	addition 	of
	the
	sixth
	teaching 	period, 	the
District
	was
	able
	to
	restore
	25
	of 	the
	32
	class 	sections
which
	it
	originally
	had 	announced
	for 	elimination 	in
	the
1978-79
	school 	year.
LEGAL
	ISSUES
1)	
Is
	the 	Association 	estopped
	from
	bringing
	this 	action
by
	its
	alleged
	failure
	to
	file
	a
	timely 	grievance 	or 	to
	make
a
	timely 	request 	to 	negotiate
	about 	the
	change 	from
	a
five-period 	teaching
	day
	to
	a
	six-period 	teaching
	day?
2)
	Was
	the
	District's
	adoption 	of
	a
	six-period 	teaching
day
	a
	unilateral
	change 	about
	a
	matter within 	the
	scope
	of
representation, 	in 	violation 	of
	Government
	Code
	section
3543.S(c)?
3)
	If
	the
	District's
	action
	was 	a
	unilateral
	change
about
	a
	matter 	within 	the 	scope 	of 	representation,
	was
	that
action 	excused 	by 	a
	business 	necessity?

CONCLUSIONS OF LAW 00058
The Estoppel and Waiver Arguments
As its initial argument, the District asserts that the
Association is barred from pursuing the present action by
estoppel and waiver. The District argues that the grievance
filed by Mrs. Rounsaville about the six-period day was
untimely and not meritorious. The District contends that the
Association, having lost the grievance, is estopped from
raising the same issue in an unfair practice proceeding.
Moreover, the District contends, the Association did not ask
to negotiate about the proposed change to a six-period
teaching day until after the June 28 and July 10 meetings of
the board of trustees. Because of this delay, the District
reasons, the Association waived any right to negotiate about
the question.
The District asserts no statute or case in support of
its estoppel and waiver arguments. It is concluded that
neither argument is valid.
It cannot be argued that the Association is estopped
from bringing the present action because it earlier filed a
grievance. 	By filing a grievance, the Association properly
attempted to resolve the dispute through the use of the
District's processes. An employee organization does not lose
its statutory protections under the Educational Employment
Relations Act by pursuing its contractual remedies. The
right to a PERB hearing is lost only under the narrow
conditions set forth in Government Code section 3541.5(a),
00058
CONCLUSIONS
	OF
	LAW
00058
The
	Estoppel
	and
	Waiver
	Arguments
As
	its 	initial
	argument,
	the
	District
	asserts 	that
	the
Association
	is
	barred
	from
	pursuing 	the
	present 	action
	by
estoppel
	and
	waiver.
	The
	District
	argues
	that
	the 	grievance
filed
	by Mrs.
	Rounsaville
	about
	the
	six-period
	day
	was
untimely
	and
	not 	meritorious.
	The
	District
	contends
	that
	the
Association,
	having
	lost
	the 	grievance,
	is
	estopped
	from
raising
	the
	same
	issue
	in
	an
	unfair 	practice
	proceeding.
Moreover,
	the
	District
	contends, 	the 	Association
	did
	not 	ask
to
	negotiate
	about
	the
	proposed
	change
	to
	a
	six-period
teaching
	day
	until 	after
	the
	June
	28
	and
	July
	10
	meetings
	of
the
	board
	of
	trustees.
	Because
	of 	this
	delay, 	the
	District
reasons, 	the Association
	waived 	any
	right
	to
	negotiate
	about
the 	question.
The
	District 	asserts
	no
	statute
	or 	case
	in
	support
	of
its
	estoppel
	and
	waiver 	arguments.
	It
	is
	concluded
	that
neither
	argument
	is 	valid.
It
	cannot
	be
	argued
	that
	the 	Association
	is
	estopped
from
	bringing 	the 	present 	action
	because
	it
	earlier 	filed
	a
grievance.
	By
	filing
	a
	grievance, 	the 	Association 	properly
attempted 	to 	resolve 	the 	dispute
	through 	the 	use
	of 	the
District's
	processes.
	An
	employee
	organization
	does
	not 	lose
its
	statutory 	protections
	under 	the 	Educational
	Employment
Relations
	Act 	by
	pursuing
	its
	contractual 	remedies.
	The
right 	to
	a 	PERB
	hearing
	is 	lost
	only 	under 	the 	narrow
conditions 	set 	forth 	in
	Government 	Code
	section 	3541.S(a),
0005R

none of which exist in the present case.
Government Code section 3541.5(a) precludes the PERB
from issuing "a complaint against conduct also prohibited by
the provisions of the agreement between the parties until the
grievance machinery of the agreement, if it exists and covers
the matter at issue, has been exhausted, either by settlement
or binding arbitration." There was no settlement in this
case and the agreement between these parties, which was
introduced as an exhibit at the hearing, does not provide for
binding arbitration. Section 3541.5(a) therefore does not
preclude the PERB from considering the present charge.
It also is clear that the Association did not waive any
right to negotiate about the six-period day by its failure
to demand negotiations prior to the July 10, 1978 board
meeting . 	Precedent involving the federal labor laws holds
that an exclusive representative's waiver of the right to
bargain must be "clear and unmistakable." Beacon Piece Dyeing
& Finishing Co. (1958) 121 NLRB 953 [42 LRRM 1489] ; see also,
Amador Valley Secondary Education Assn. v. Amador Valley
Joint Union High School District (10/2/78) PERB Decision No.
74. It cannot be said that the Association made a "clear
and unmistakable" waiver of any right it may have had to
negotiate about the six-period day. If anything was clear
2Relevant cases under the National Labor Relations
Act are persuasive precedent in the interpretation of
California labor relations statutes. 	Fire Fighters Union
v. City of Vallejo (1974) 12 Cal. 3d 608 [116 Cal . Rptr. 507];
Los Angeles County Civil Service Com. v. Superior Court
(1978) 23 Cal. 3d 55 [_ 	Cal . Rptr.
CU059
none 	of which 	exist 	in 	the 	present 	case.
Government 	Code 	section 	3541.5(a) 	precludes 	the 	PERE
from 	issuing 	"a 	complaint 	against 	conduct 	also 	prohibited 	by
the 	provisions 	of 	the 	agreement 	between 	the 	parties 	until 	the
grievance machinery 	of 	the 	agreement, 	if 	it 	exists 	and 	covers
the 	matter 	at 	issue, 	has 	been 	exhausted, 	either 	by 	settlement
or 	binding 	arbitration." 	There was 	no 	settlement 	in 	this
case 	and 	the 	agreement 	between 	these 	parties, 	which was
introduced 	as 	an 	exhibit 	at 	the 	hearing, 	does 	not 	provide 	for
binding 	arbitration. 	Section 	3541.5(a) 	therefore 	does 	not
preclude 	the 	PERB 	from 	considering 	the 	present 	charge.
It 	also 	is 	clear 	that 	the 	Association 	did 	not 	waive 	any
right 	to 	negotiate 	about 	the 	six-period 	day 	by 	its 	failure
to 	demand negotiations 	prior 	to 	the 	July 	10, 	1978 	board
meeting. 	Precedent 	involving 	the 	federal 	labor 	laws 2 	holds
that 	an 	exclusive 	representative's 	waiver 	of 	the 	right 	to
bargain must 	be 	"clear 	and 	unmistakable." 	Beacon 	Piece 	Dyeing
& Finishing 	Co. 	(1958) 	121 	NLRB 	953 	[42 	LRRM 1489]; 	see 	also,
Amador 	Valley 	Secondary 	Education Assn. 	v. 	Amador 	Valley
Joint 	Union High 	School 	District 	(10/2/78) 	PERB 	Decision 	No.
74. 	It 	cannot 	be 	said 	that 	the 	Association made 	a 	"clear
and 	unmistakable" 	waiver 	of 	any 	right 	it 	may 	have 	had 	to
negotiate 	about 	the 	six-period 	day. 	If 	anything was 	clear
2Relevant 	cases 	under 	the 	National 	Labor 	Relations
Act 	are 	persuasive 	precedent 	in 	the 	interpretation 	of
California 	labor 	relations 	statutes. 	Fire 	Fighters 	Union
v. 	City 	of 	Vallejo 	(1974) 	12 	Cal.3d 	608 	(116 	Cal.Rptr. 	507);
Los 	An 	eles 	Count 	Civil 	Service 	Com. 	v. 	Superior 	Court
1978) 	23 	Cal.3d 	55 	L __ 	Cal.Rptr. 	__ ].

00060
and unmistakable on June 28 and July 10 it was the
Association's opposition to the six-period teaching day.
No case for waiver can be made from the evidence in this
record.
The Scope of Representation Argument
The District next asserts that the subject of a
six-period teaching day is not negotiable because it is
outside the scope of representation. If the District is
correct in this assertion, it had the absolute right to
make a unilateral change from a five-period to a
six-period teaching day. Under Government Code section
3543.5(c), an employer is obligated to meet and negotiate
in good faith with an exclusive representative only
about matters within the scope of representation.
The scope of representation under the Educational
Employment Relations Act (Gov. Code sec. 3540 et seq. )
is set forth at Government Code section 3543.2. That
Government Code section 3543.2 provides as follows:
The scope of representation shall be limited to
matters relating to wages, hours of employment,
and other terms and conditions of employment.
"Terms and conditions of employment" mean health
and welfare benefits as defined by Section 53200,
leave, transfer and reassignment policies, safety
conditions of employment, class size, procedures
to be used for the evaluation of employees,
organizational security pursuant to Section 3546,
procedures for processing grievances pursuant to
Sections 3548.5, 3548.6, 3548.7, and 3548.8 and
the layoff of probationary certificated school
district employees, pursuant to Section 44959.5
(continued on page 16)
and 	unmistakable 	on 	June 	28 	and 	July 	10 	it was 	the
Association's 	opposition 	to 	the 	six-period 	teaching 	day.
No 	case 	for 	waiver 	can be made 	from 	the 	evidence 	in 	this
record.
The 	Scope 	of 	Representation Argument
00060
The 	District 	next 	asserts 	that 	the 	subject 	of 	a
six-period 	teaching 	day 	is 	not 	negotiable 	because 	it 	is
outside 	the 	scope 	of 	representation. 	If 	the 	District 	is
correct 	in 	this 	assertion, 	it 	had 	the 	absolute 	right 	to
make 	a 	unilateral 	change 	from 	a 	five-period 	to 	a
six-period 	teaching 	day. 	Under 	Government 	Code 	section
3543.5(c), 	an 	employer 	is 	obligated 	to 	meet 	and negotiate
in 	good 	faith 	with 	an 	exclusive 	representative 	only
about 	matters 	within 	the 	scope 	of 	representation.
The 	scope 	of 	representation under 	the 	Educational
Employment 	Relations 	Act 	(Gov. 	Code 	sec. 	3540 	et 	seq.)
is 	set 	forth 	at 	Government 	Code 	section 	3543.2. 3 That
3Government 	Code 	section 	3543.2 	provides 	as 	follows:
The 	scope 	of 	representation 	shall 	be 	limited 	to
matters 	relating 	to 	wages, 	hours 	of 	employment,
and 	other 	terms 	and 	conditions 	of 	employment.
"Terms 	and 	conditions 	of 	employmentn 	mean 	health
and 	welfare 	benefits 	as 	defined 	by 	Section 	53200,
leave, 	transfer 	and 	reassignment 	policies, 	safety
conditions 	of 	employment, 	class 	size, 	procedures
to 	be 	used 	for 	the 	evaluation 	of 	employees,
organizational 	security 	pursuant 	to 	Section 	3546,
procedures 	for 	processing 	grievances 	pursuant 	to
Sections 	3548.5, 	3548.6, 	3548.7, 	and 	3548.8 	and
the 	layoff 	of 	probationary 	certificated 	school
district 	employees, 	pursuant 	to 	Section 	4li-959. 5
(continued 	on 	page 	16)

COCC1
section limits the subjects of negotiation to "matters
relating to wages, hours of employment" and other specifically
defined "terms and conditions of employment." The question
raised by the present case is whether the change from a
five-period to a six-period teaching schedule is a matter
"relating to . .. hours of employment." Unless such a
relationship can be shown, then the matter is not within the
scope of representation. See generally, Fullerton Union High
School District Personnel and Guidance Association v. Fullerton
Union High School District (7/27/77) EERB Decision No. 20.
The District takes the position that the change from
five to six teaching periods has not affected the hours which
teachers must work. The District argues that under the
contract teachers must be present for eight hours each day
and all the District has done is to rearrange the nature of
how teachers shall spend those eight hours. Such a
rearrangement, the District contends, has no effect on the
number of hours and is therefore not within the scope of
representation.
(continued from footnote 3, page 15)
of the Education Code. . In addition. the exclusive
representative of certificated personnel has the
right to consult on the definition of educational
objectives, the determination of the content of
courses and curriculum, and the selection of
textbooks to the extent such matters are within the
discretion of the public school employer under the
law. All matters not specifically enumerated are
reserved to the public school employer and may not
be a subject of meeting and negotiating, provided
that nothing herein may be construed to limit the
right of the public school employer to consult with
any employees or employee organization on any
matter outside the scope of representation.
00051
GGOE1
section
	limits
	the
	subjects 	of 	negotiation
	to 	"matters
relating
	to
	wages,
	hours
	of
	employment" 	and
	other
	specifically
defined
	"terms
	and
	conditions 	of
	employment.P
	The
	question
raised
	by
	the
	present
	case
	is
	whether
	the
	change
	from
	a
five-period
	to
	a
	six-period
	teaching
	schedule
	is
	a
	matter
"relating
	to
	hours
	of
	employment." 	Unless 	such
	a
relationship
	can 	be
	shown,
	then
	the 	matter
	is
	not 	within
	the
scope
	of
	representation.
	See
	generally, 	Fullerton
	Union
	High
School
	District
	Personnel
	and
	Guidance
	Association
	v.
	Fullerton
Union 	High
	School
	District
	(7/27/77)
	EERB
	Decision
	No.
	20.
of 	the 	Education
	Code.
	In 	addition. 	the 	exclusive
representative 	of
	certificated
	personnel 	has
	the
right
	to 	consult
	on
	the
	definition 	of 	educational
objectives, 	the 	determination 	of 	the 	content 	ofcourses
	and
	curriculum,
	and
	the 	selection 	oftextbooks 	to 	the 	extent
	such matters 	are within 	the
discretion 	of 	the 	public 	school 	employer 	under 	thelaw.
	All 	matters 	not 	specifically
	enumerated
	are
reserved 	to 	the 	public 	school 	employer 	and
	may
	notbe
	a
	subject 	of meeting 	and
	negotiating, 	provided
that 	nothing 	herein
	may
	be 	construed 	to 	limit 	the
right 	of 	the 	public 	school 	employer 	to 	consult withany 	employees 	or 	employee 	organization
	on 	any
matter 	outside 	the 	scope 	of 	representation.
The
	District
	takes 	the
	position 	that
	the
	change 	from
five
	to
	six
	teaching 	periods
	has
	not
	affected
	the
	hours 	which
teachers
	must 	work.
	The
	District
	argues
	that
	under
	the
contract 	teachers
	must 	be
	present 	for 	eight
	hours 	each 	day
and
	all
	the
	District
	has
	done
	is
	to
	rearrange 	the 	nature
	of
how
	teachers
	shall
	spend
	those
	eight
	hours.
	Such
	a
rearrangement, 	the
	District
	contends,
	has
	no
	effect
	on
	the
number
	of
	hours
	and
	is
	therefore
	not 	within 	the
	scope
	of
representation.
(continued
	from
	footnote
	3, 	page
	15)

OOO62
This argument, however, ignores the actual impact of
the change to six teaching periods. The evidence clearly
supports the Association contention that District teachers
are working longer hours in 1978-79. The addition of the
sixth period has given more students to every District
teacher but one. 	The evidence establishes that the more
students a teacher teaches the more hours the teacher must
spend in grading and recording tests and papers. 	The more
classes a teacher teaches, the more classes for which the
teacher must do research, write exams and otherwise prepare.
Additional tasks require additional time.
Contrary to the assertion of the District, the
contract between the parties did not permit this change.
The contract provision on hours (p. 11, supra) provides only
that except in emergencies, the work day shall not "exceed"
eight hours. The contract does not fix the teacher work
day at eight hours. It establishes no minimum limit on the
number of hours a teacher must work each day. It cannot
be argued, therefore, that the contract authorizes any
change in the past practice which would have the effect of
lengthening the total numbers of hours a teacher must work
each day.
Because the change from a five-period to a six-period
teaching day is related to the number of hours which a
teacher must work, it is concluded that the matter is within
the scope of representation.
00062
00062
This 	argument,
	however,
	ignores
	the
	actual
	impact
	of
the
	change
	to
	six
	teaching
	periods.
	The
	evidence
	clearly
supports 	the 	Association 	contention
	that
	District
	teachers
are
	working
	longer
	hours
	in
	1978-79.
	The
	addition 	of
	the
sixth
	period
	has
	given
	more
	students
	to
	every
	District
teacher
	but
	one.
	The
	evidence
	establishes
	that
	the
	more
students
	a
	teacher
	teaches 	the
	more
	hours
	the 	teacher
	must
spend
	in
	grading
	and
	recording
	tests
	and
	papers.
	The
	more
classes
	a
	teacher 	teaches, 	the
	more
	classes 	for
	which
	the
teacher
	must
	do
	research,
	write
	exams
	and
	otherwise
	prepare.
Additional 	tasks 	require 	additional
	time.
Contrary 	to 	the
	assertion
	of 	the
	District,
	the
contract
	between
	the
	parties
	did not 	permit
	this
	change.
The
	contract 	provision
	on
	hours 	(p. 	11,
	supra) provides
	only
that
	except
	in
	emergencies,
	the
	work 	day
	shall
	not
	"exceed"
eight
	hours.
	The
	contract
	does
	not
	fix
	the 	teacher
	work
day
	at
	eight
	hours.
	It
	establishes
	no
	minimum
	limit
	on
	the
number
	of
	hours
	a
	teacher
	must 	work
	each 	day.
	It
	cannot
be 	argued,
	therefore, 	that
	the 	contract 	authorizes
	any
change
	in 	the 	past 	practice
	which would 	have
	the
	effect 	of
lengthening 	the
	total
	numbers
	of
	hours
	a
	teacher
	must 	work
each 	day.
Because
	the
	change 	from
	a
	five-period 	to
	a
	six-period
teaching
	day
	is 	related 	to 	the
	number
	of
	hours 	which
	a
teacher
	must 	work,
	it
	is
	concluded
	that 	the 	matter 	is 	within
the 	scope 	of 	representation.
00062

00063
The "No Unilateral Change" Argument
The District next argues that even if the change to a
six-period day involved a matter within the scope of
representation, the change was not unilateral. The District
argues that it "consulted at length" with the Association
and that prior to its July 10, 1978 decision, the board of
trustees reached a "compromise" with the Association. The
purported July 10 compromise was that the Association accepted
the reduction in the student activity period in exchange for
the addition of a sixth period.
These District arguments are not supported by the
record. The participation by Mr. Arata in the sixth period
study committee could under no reading of the record be
considered negotiation or even consultation by the Association.
With the restrictions placed on the committee by the
superintendent and the board of trustees, it is apparent that
the only task of the committee was to prepare a schedule to
implement the sixth period. The committee did not have the
leeway to do anything else.
Neither can it be contended that the discussion on
July 10 between the board of trustees and various teachers
amounted to a negotiating session and an Association
compromise. 	Those discussions did not involve a District
offer and an Association acceptance of a proposal to
institute a six-period day in exchange for a reduction in
the length of the student activity period. Rather, the
Association was presented with a series of proposals for
00063
The
	"No
	Unilateral
	Change" 	Argument
The
	District
	next
	argues
	that
	even
	if
	the
	change
	to
	a
six-period
	day
	involved
	a
	matter 	within 	the
	scope
	of
representation,
	the
	change
	was
	not
	unilateral.
	The
	District
argues
	that
	it
	"consulted
	at
	length" 	with 	the Association
and
	that 	prior
	to
	its
	July
	10,
	1978
	decision,
	the
	board
	of
trustees
	reached
	a
	"compromise"
	with 	the 	Association.
	The
purported
	July
	10 	compromise
	was
	that
	the 	Association 	accepted
the 	reduction
	in
	the 	student
	activity
	period 	in
	exchange
	for
the 	addition 	of
	a
	sixth
	period.
00063
These
	District
	arguments
	are 	not 	supported
	by
	the
record.
	The
	participation
	by
	Mr.
	Arata
	in
	the
	sixth
	period
study
	committee
	could under
	no
	reading
	of
	the 	record
	be
considered
	negotiation 	or
	even
	consultation
	by
	the 	Association.
With
	the
	restrictions
	placed
	on
	the
	committee
	by
	the
superintendent
	and
	the
	board
	of 	trustees,
	it
	is
	apparent
	that
the 	only
	task 	of 	the
	committee
	was
	to 	prepare
	a
	schedule
	to
implement
	the
	sixth
	period.
	The
	committee
	did not
	have
	the
leeway
	to
	do
	anything
	else.
Neither
	can
	it
	be 	contended
	that
	the 	discussion
	on
July
	10
	between
	the board
	of 	trustees
	and
	various 	teachers
amounted
	to
	a
	negotiating 	session
	and 	an
	Association
compromise. 	Those
	discussions 	did 	not 	involve
	a
	District
offer
	and 	an
	Association 	acceptance 	of
	a
	proposal 	to
institute
	a
	six-period
	day
	in
	exchange
	for
	a
	reduction 	in
the 	length 	of 	the 	student 	activity 	period. 	Rather, 	the
Association
	was
	presented with
	a
	series 	of 	proposals 	for
00063

00064
how classes would be scheduled under a six-period day.
After hearing various teacher complaints, the board of
trustees proposed still another schedule, one which reduced
the length of the student activity period. One or more
Association representatives then told the board of trustees
that the Association preferred the schedule with the
shortened activity period. These comments did not create
a negotiated agreement to institute the six-period day.
They were simply a statement of preference for the least
objectionable alternative.
It is concluded, therefore, that the District did make
a unilateral change that related to hours, a matter within
the scope of representation. An employer's unilateral
change about a matter within the scope of representation is
per se a refusal to negotiate in good faith. NLRB v. Katz
(1962) 369 U. S. 736 [50 LRRM 2177]; Pajaro Valley Education
Association, CTA/NEA v. Pajaro Valley Unified School District
(5/22/78) PERB Decision No. 51. It is a violation of Government
Code section 3543.5(c) for a public school employer to fail to
meet and negotiate in good faith.
The Business Necessity Argument
As a final line of defense, the District asserts that
even if it made a unilateral change about a matter within
the scope of representation, it did so as a necessary and
appropriate business necessity. The District asserts that
it was obligated to establish a curriculum that meets the
00064
how
	classes
	would
	be
	scheduled
	under
	a
	six-period
	day.
After
	hearing 	various
	teacher
	complaints, 	the
	board
	of
trustees
	proposed
	still
	another
	schedule,
	one which
	reduced
the
	length 	of
	the 	student
	activity
	period.
	One
	or
	more
Association
	representatives
	then
	told
	the
	board
	of
	trustees
that
	the 	Association
	preferred
	the 	schedule 	with 	the
shortened
	activity
	period.
	These
	comments
	did 	not
	create
a
	negotiated
	agreement
	to
	institute
	the
	six-period
	day.
They
	were
	simply
	a
	statement
	of 	preference 	for
	the
	least
objectionable
	alternative.
It
	is
	concluded,
	therefore, 	that
	the
	District
	did
	make
a
	unilateral
	change
	that 	related
	to 	hours,
	a
	matter 	within
the
	scope
	of 	representation.
	An
	employer's
	unilateral
change
	about
	a
	matter 	within 	the
	scope
	of 	representation
	is
per
	sea
	refusal
	to
	negotiate 	in
	good
	faith.
	NLRB
	v. 	Katz
(1962)
	369
	U.S.
	736
	[50
	LRRM
	2177];
	Pajaro 	Valley 	Education
Association,
	CTA/NEA
v.
	Pajaro 	Valley 	Unified
	School
	District
(5/22/78)
	PERB
	Decision
	No.
	51.
	It
	is
	a
	violation
	of
	Government
Code
	section
	3543.5(c)
	for
	a
	public
	school
	employer
	to
	fail
	to
meet 	and
	negotiate 	in
	good
	faith.
00064
The
	Business 	Necessity
	Argument
As 	a
	final 	line 	of 	defense, 	the
	District 	asserts 	that
even
	if 	it
	made 	a
	unilateral
	change 	about
	a
	matter 	within
the 	scope 	of 	representation,
	it
	did
	so 	as
	a
	necessary 	and
appropriate 	business 	necessity.
	The
	District 	asserts 	that
it
	was
	obligated 	to 	establish
	a
	curriculum 	that
	meets 	the
00064

00065
minimum requirements of the Education Code, the admission
requirements of the University of California and its own
self-imposed requirements. The District asserts that it
could not have met these requirements except for the
imposition of a sixth period.
Even if business necessity is a valid defense for
a unilateral action, an issue yet to be considered by the
PERB, the District has not shown a business necessity in
the present case. The District has demonstrated no reason
why it was precluded from negotiating with the Association
about the effects of the imposition of a sixth period on
teacher working hours. The decision to lay off six teachers
was made in early March. Classes for the 1978-79 school year
did not begin until the following September, some six months
later. There was a great deal of time for the District and
the Association through negotiations to mutually explore the
effects of the layoff and the effects of an additional daily
teaching period on teacher work hours. Meeting together, the
parties might have developed a plan which was agreeable to
both. 	But by acting unilaterally, the District foreclosed
the possibility of a mutual agreement. A school board which
knows it must make a decision that will have an impact on
employee working conditions cannot sit back until the eleventh
hour, make a unilateral decision and then plead business
necessity as a defense.
For all of these reasons, it is concluded that the
District's imposition of a six-period teaching day in the
00065
minimum
	requirements
	of
	the
	Education
	Code,
	the
	admission
requirements
	of
	the
	University
	of 	California
	and
	its
	own
self-imposed 	requirements.
	The
	District
	asserts 	that
	it
could
	not
	have
	met
	these
	requirements 	except
	for
	the
imposition 	of
	a
	sixth
	period.
Even
	if
	business
	necessity
	is
	a
	valid
	defense
	for
a
	unilateral
	action,
	an
	issue 	yet
	to
	be
	considered
	by
	the
PERB,
	the
	District
	has
	not
	shown
	a
	business
	necessity 	in
the
	present
	case.
	The
	District
	has
	demonstrated
	no
	reason
why
	it
	was
	precluded
	from
	negotiating
	with 	the
	Association
about
	the
	effects
	of 	the 	imposition
	of
	a
	sixth
	period
	on
teacher
	working
	hours.
	The
	decision
	to
	lay
	off 	six
	teachers
was 	made
	in 	early
	March.
	Classes
	for
	the
	1978-79
	school
	year
did
	not
	begin
	until
	the
	following
	September,
	some
	six
months
later.
	There
	was
	a
	great
	deal 	of
	time
	for 	the
	District
	and
the Association
	through
	negotiations
	to 	mutually 	explore 	the
effects
	of 	the
	layoff
	and
	the
	effects
	of
	an
	additional
	daily
teaching 	period
	on
	teacher
	work
	hours.
	Meeting
	together, 	the
parties
	might 	have 	developed
	a
	plan
which
	was
	agreeable 	to
both.
	But 	by
	acting
	unilaterally,
	the
	District
	foreclosed
the
	possibility
	of
	a
	mutual 	agreement.
	A
	school 	board which
knows
	it
	must
	make
	a
	decision 	that 	will
	have 	an 	impact 	on
employee working
	conditions 	cannot
	sit
	back
	until
	the 	eleventh
hour,
	make 	a
	unilateral 	decision
	and 	then 	plead 	business
necessity 	as
	a
	defense.
00065
For
	all
	of 	these 	reasons,
	it
	is
	concluded
	that 	the
District's
	imposition 	of
	a
	six-period 	teaching 	day 	in 	the

00066
1978-79 school year was an unlawful unilateral action about
a matter within the scope of representation and a violation
of Government Code section 3543.5(c).
THE REMEDY
The Association has several times modified the remedy
it seeks in the present case. In its final amended form,
the remedy desired by the Association is a return to the
status quo, i. e. , the reinstatement of the five-period
teaching day.
Under Government Code section 3541.5(c), the PERB
is given:
the power to issue a decision and
order directing an offending party to
cease and desist from the unfair practice
and to take such affirmative action,
including but not limited to the reinstate-
ment of employees with or without back pay,
as will effectuate the policies of this
chapter.
In cases involving unlawful unilateral actions, an
order to reinstate the status quo is appropriate. NLRB
v. Allied Products Corp. (6th Cir. 1977) 548 F. 2d 644
[94 LRRM 2433] enforcing as modified 218 NLRB 1246
[89 LRRM 1441]; Southeastern Michigan Gas Co. (6th Cir.
1973) 485 F. 2d 1239 [85 LRRM 2191] affirming 198 NLRB 1221
[81 LRRM 1350] .
It also is appropriate that the District be directed
to cease and desist from the unfair practice and that the
District be directed to post a copy of the attached order.
California School Employees Association, Chapter 658 v.
Placerville Union School District (9/18/78) PERB Decision
No. 69.
00066
000€6
1978-79
	school
	year
	was
	an
	unlawful
	unilateral
	action
	about
a
	matter 	within
	the
	scope
	of
	representation
	and
	a
	violation
of
	Government
	Code
	section
	3543.5(c).
THE
	REMEDY
The
	Association
	has
	several
	times
	modified
	the
	remedy
it
	seeks
	in
	the
	present
	case. 	In
	its
	final
	amended
	form,
the
	remedy
	desired
	by
	the 	Association
	is
	a
	return
	to
	the
status
	quo,
	i.e.,
	the
	reinstatement 	of 	the
	five-period
teaching
	day.
Under 	Government
	Code
	section
	3541.5(c), 	the
	PERB
is
	given:
the
	power
	to
	issue
	a
	decision
	and
order
	directing
	an
	offending 	party
	to
cease
	and
	desist
	from
	the
	unfair 	practice
and
	to 	take
	such
	affirmative 	action,including 	but not 	limited
	to 	the
	reinstate-
ment
	of
	employees
	with 	or 	without
	back pay,
as
	will 	effectuate
	the
	policies 	of
	this
chapter.
In 	cases 	involving 	unlawful
	unilateral
	actions,
	an
order 	to
	reinstate
	the
	status
	quo
	is
	appropriate.
	NLRB
v.
	Allied
	Products
	Corp.
	(6th 	Cir.
	1977)
	548
	F.2d
	644
[94
	LRRM
	2433]
	enforcing
	as 	modified
	218
	NLRB
	1246
[89
	LRRM
	1441]; 	Southeastern
	Michigan
	Gas 	Co.
	(6th 	Cir.
1973) 	485
	F.2d
	1239 	[85
	LRRM
	2191]
	affirming
	198
	NLRB
	1221
[ 81
	LRRM
	13 5 0 ] .
It
	also 	is 	appropriate 	that 	the
	District
	be
	directed
to 	cease 	and
	desist
	from
	the 	unfair 	practice
	and
	that 	the
District
	be
	directed 	to 	post
	a
	copy
	of 	the 	attached 	order.
California 	School 	Employees 	Association, 	Chapter
	658
	v.
Placerville
	Union 	School 	District 	(9/18/78)
	PERB
	Decision
No. 	69. 
0006"6

OOOS?
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of
law, and the entire record of this case, and pursuant to
Government Code section 3541.5(c) of the Educational
Employment Relations Act, it is hereby ordered that the
Sutter Union High School District, board of education,
superintendent and representative shall:
A. 	CEASE AND DESIST FROM:
Refusing to meet and negotiate in good faith with the
Sutter Education Association by unilaterally instituting a
six-period teaching day and thereby affecting a matter
related to the hours which teachers must work, in violation
of Government Code section 3543.5 (c) ;
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO EFFECTUATE THE POLICIES OF THE ACT:
1 . 	Rescind its requirement that teachers must teach
six periods each day and return to the past practice of
requiring teachers to teach five periods each day;
2. Post at all school sites, and all other work
locations where notices to certificated employees customarily
are placed, copies of the notice attached as an appendix
hereto . 	Such posting shall be maintained for a period of
30 consecutive days from the date this proposed order becomes
final. Reasonable steps should be taken to insure that the
notices are not altered, defaced or covered by any other
material.
3. Notify the Sacramento Regional Director of the
Public Employment Relations Board, in writing, within 20 days
00067
PROPOSED
	ORDER
Upon
	the 	foregoing
	findings
	of
	fact,
	conclusions
	of
law, 	and
	the
	entire
	record
	of
	this
	case,
	and
	pursuant
	to
Government
	Code
	section
	3541.S(c)
	of
	the 	Educational
Employment
	Relations
	Act,
	it
	is
	hereby
	ordered
	that
	the
Sutter
	Union
	High
	School
	District,
	board
	of
	education,
superintendent
	and
	representative 	shall:
A. 	CEASE
	AND
	DESIST
	FROM:
Refusing 	to
	meet 	and
	negotiate 	in
	good
	faith
	with
	the
Sutter
	Education
	Association
	by
	unilaterally 	instituting
	a
six-period
	teaching
	day 	and
	thereby
	affecting
	a
	matter
related
	to
	the
	hours
	which
	teachers
	must 	work,
	in
	violation
of
	Government
	Code
	section
	3543.S(c);
B.
	TAKE 	THE
	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED
TO
	EFFECTUATE
	THE
	POLICIES
	OF 	THE
	ACT:
1. 	Rescind
	its
	requirement
	that
	teachers
	must
	teach
six
	periods
	each
	day 	and
	return
	to 	the 	past 	practice 	of
requiring 	teachers
	to
	teach
	five 	periods
	each
	day;
0006?
2.
	Post
	at
	all
	school
	sites,
	and
	all
	other
	work
locations
	where
	notices 	to
	certificated
	employees
	customarily
are 	placed, 	copies 	of 	the 	notice 	attached
	as 	an 	appendix
hereto.
	Such
	posting
	shall
	be
	maintained 	for
	a
	period 	of
30
	consecutive
	days 	from
	the 	date
	this
	proposed 	order
	becomes
final.
	Reasonable
	steps 	should 	be
	taken 	to 	insure 	that 	the
notices 	are 	not 	altered,
	defaced 	or 	covered by 	any
	other
material.
3. 	Notify 	the 	Sacramento 	Regional 	Director 	of 	the
Public
	Employment
	Relations 	Board, 	in writing, 	within
	20
	days
000K7

00068
of the date this proposed decision becomes final, of what
steps the District has taken to comply with this order.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order
shall become final on June 14, 1979 unless a party files a
timely statement of exceptions. See Calif. Admin. Code,
tit. 8, part III, section 32300. Such statement of
exceptions and supporting brief must be actually received
by the Executive Assistant to the Board at the Headquarters
Office in Sacramento before the close of business (5:00 p.m.)
on June 14, 1979 in order to be timely filed. See Calif.
Admin. Code, tit. 8, part III, section 32135. Any statement
of exceptions and supporting brief must be served concurrently
with its filing upon each party to this proceeding. Proof
of service shall be filed with the PERB itself. See Calif.
Admin. Code, tit. 8, sections 32300 and 32305, as amended.
Dated: May 25, 1979
Ronald E. Blubaugh
Hearing Officer
23
00068
of
	the 	date
	this
	proposed
	decision
	becomes
	final,
	of
	what
steps
	the
	District
	has
	taken 	to
	comply
	with
	this
	order.
Pursuant 	to
	California
	Administrative
	Code,
	title
	8,
part
	III,
	section
	32305,
	this
	Proposed
	Decision
	and
	Order
shall
	become
	final
	on
	Jtme
14, 	1979
	unless
	a
	party
	files
	a
timely 	statement
	of
	exceptions.
	See
	Calif.
	Admin.
	Code,
tit.
	8,
	part
	III,
	section
	32300. 	Such
	statement
	of
exceptions
	and
	supporting
	brief
	must
	be
	actually
	received
by
	the
	Executive
	Assistant
	to 	the
	Board
	at
	the 	Headquarters
Office 	in
	Sacramento
	before
	the
	close 	of
	business
	(5:00
	p.m.)
on
	Jtme 14, 	1979
	in 	order 	to
	be
	timely
	filed.
	See
	Calif.
Admin. 	Code,
	tit.
	8,
	part
	III,
	section
	32135.
	Any
	statement
of
	exceptions
	and
	supporting
	brief
must
	be
	served
	concurrently
with
	its
	filing
	upon
	each
	party
	to
	this
	proceeding.
	Proof
of 	service
	shall
	be
	filed
	with 	the
	PERB
	itself.
	See
	Calif.
Admin. 	Code,
	tit.
	8,
	sections
	32300
	and 	32305,
	as
	amended.
00068
Dated:
	May
	25, 	1979
Ronald
	E.
	Blubaugh
Hearing
	Officer
(/

00069
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing at which all parties had the right to
participate, it has been found that the Sutter Union High
School District violated the Educational Employment Relations
Act by unilaterally requiring teachers to teach six periods
of instruction each day . 	This unilateral action, taken
without negotiation with the exclusive representative Sutter
Teachers Association, was a violation of the District's
obligation to negotiate in good faith. As a result of this
conduct, we have been ordered to post this notice and we will
abide by the following:
Cease and Desist from refusing to meet and negotiate in
good faith with the Sutter Education Association by unilaterally
instituting a six-period teaching day and thereby affecting a
matter related to the hours which teachers must work.
We WILL rescind the requirement that teachers must teach
six periods each day and return to the past practice of
requiring teachers to teach five periods each day.
SUTTER UNION HIGH SCHOOL DISTRICT
By :
Dated:
This is an official notice. It must remain posted for
30 consecutive days from the date of posting and must not be
defaced, altered or covered by any material.
00069
APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
00069
After 	a 	hearing 	at 	which 	all 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	Sutter 	Union 	High
School 	District 	violated 	the 	Educational 	Employment 	Relations
Act 	by 	unilaterally 	requiring 	teachers 	to 	teach 	six 	periods
of 	instruction 	each 	day. 	This 	unilateral 	action, 	taken
without 	negotiation 	with 	the 	exclusive 	representative 	Sutter
Teachers 	Association, 	was 	a 	violation 	of 	the 	District's
obligation 	to 	negotiate 	in 	good 	faith. 	As 	a 	result 	of 	this
conduct, 	we 	have 	been 	ordered 	to 	post 	this 	notice 	and we 	will
abide 	by 	the 	following:
Cease 	and 	Desist 	from 	refusing 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	the 	Sutter 	Education Association 	by 	unilaterally
instituting 	a 	six-period 	teaching 	day 	and 	thereby 	affecting 	a
matter 	related 	to 	the 	hours 	which 	teachers 	must 	work.
We WILL 	rescind 	the 	requirement 	that 	teachers 	must 	teach
six 	periods 	each 	day 	and 	return 	to 	the 	past 	practice 	of
requiring 	teachers 	to 	teach 	five 	periods 	each 	day.
SUTTER UNION HIGH 	SCHOOL 	DISTRICT
By:
Dated:
This 	is 	an 	official 	notice. 	It must 	remain 	posted 	for
30 	consecutive 	days 	from 	the 	date 	of 	posting 	and must 	not 	be
defaced, 	altered 	or 	covered 	by 	any 	material.
00069