Victor Valley Joint Union High School District (PERB 0192E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
VICTOR VALLEY TEACHERS 	ASSOCIATION,
Charging Party,
v.
VICTOR VALLEY JOINT 	UNION HIGH
SCHOOL 	DISTRICT,
Respondent .
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_____________________ )
Case 	NO . 	LA-CE-1083
PERB 	Decision No . 192
December 	31, 	1981
Appearances: 	Charles 	R. 	Gustafson, 	Attorney 	for 	Victor 	Valley
Teachers 	Association; 	Steven J. 	Andelson, 	Attorney 	(Atkinson,
Andelson, 	Ruud 	& Romo) 	for 	Victor 	Valley 	Joint 	Union High
School 	District.
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Tovar, 	Hembers .
DECISION
The 	Victor 	Valley 	Teachers Association 	(hereafter VVTA)
excepts 	to 	the 	dismissal 	without 	leave 	to 	amend 	of 	its 	charge
against 	the 	Victor 	Val ley 	Joint 	Union 	High 	School District
(hereafter 	District) 	which 	alleges 	that 	the 	District 	vio lat ed
sections 	3543 . 5 (a) , 	(b), 	(c) 	and 	(e) 	of 	the 	Educational
Employment Relations 	Act 	{hereafter 	EERA or 	the 	Act)l 	by
unilaterally 	breaching 	its 	negotiated 	agreement 	on 	employees
1The 	EERA 	is 	codified 	as 	section 	3540 , 	et 	seq . 	All
statutory 	references 	are 	to 	the 	California Government Code
unless 	otherwise 	stated.

salaries, 	refusing 	to 	entertain WTA's 	grievance 	concerning
that 	alleged 	breach, 	unilaterally 	changing 	employee 	wages
without 	negotiating 	with 	WTA 	and 	by 	effecting 	reprisals
against 	members 	of 	the 	bargaining 	unit 	by 	failing 	to 	provide 	to
said 	employees 	the 	full 	amount 	of 	their 	negotiated 	wage
increase.
The 	source 	of 	these 	charges 	is 	a 	disagreement 	over 	a
negotiated 	wage 	provision. 	The 	agreement, 	concluded
immediately prior 	to 	this 	charge, 	called 	for 	the 	District 	to
provide 	a 	7 	percent 	retroactive 	wage 	increase 	to 	unit
employees. 	The 	agreement 	itself 	is 	silent 	as 	to 	the 	method 	of
computing 	the 	increase. 	VVTA 	attempted 	to 	demonstrate 	that 	it
had 	been 	the 	District's 	past 	practice 	to 	calculate 	wages 	on 	a
monthly 	basis 	and 	that 	it 	was 	the 	intention 	of 	the 	agreement
that 	this 	practice 	continue, 	but 	that 	the 	District 	had 	actually
calculated 	the 	retroactive 	increase 	on 	a 	per 	diem 	basis,
resulting 	in 	finRn~iRl 	lnRR 	~n 	the 	employees. 	The 	District, 	in
turn, 	denies 	such 	an 	intention 	and 	points 	to 	the 	contract's
silence 	as 	evidence 	that 	it 	could 	unilaterally 	decide 	the
method 	of 	computation. 	The 	District 	further 	argues 	that 	absent
any 	contractual 	grievance 	procedure, 	it 	is 	not 	obligated 	to
entertain VVTA's 	complaint 	on 	the 	subject.
At 	the 	outset, 	the 	hearing 	officer 	indicated 	his 	bel.ief
that VVTA's 	charge 	alleged 	only 	a 	breach 	of 	contract, 	that 	the
Public 	Employment 	Relations 	Board 	(hereafter 	PERB) 	Jacks
2

jurisdiction
	to
	enforce
	collective
	agreements,
	and
	that
	he
therefore
	proposed
	to
	dismiss 	the 	charge.
	In
	a
	hearing 	held 	to
take
	argument
	on
	his
	intended
	dismissal
	the 	following
occurred:2
HEARING
	OFFICER:
	...
	I'm
	going
	to
	ask
	if
there 	are
	any
	other
	facts
	you 	would
	allege
if
	you
	were
	given
	an
	opportunity 	to
	amend
this
	charge
	so
	that
	it
	more
	clearly 	stated
an
	unfair
	practice,
	other
	than
	a
	contract
violation.
GUSTAFSON:
	(VVTA
	representative):
	...
	The
Association
	came
	here 	today
	prepared
	to
	put
on
	evidence
	to
	prove
	that
	the
	negotiator
	for
the
	District,
	who
	negotiated
	the
	agreement
in
	question,
	agrees
	with
	the
	interpretati.onof
	that
	agreement
	put
	forth	
by	
the
Association 	in
	this
	unfair
	practice
charge
....
HEARING
	OFFICER:
	...
	It's
	my
judgment
	•..
	that 	that 	is
	more 	a
	question
of
	proving
	whether 	your
	contentions
	as
	to
what
	the
	contract 	said 	are
	correct
....
	It
is
	my
	judgment
	that
	it
	would
	not	
be
productive 	to 	take 	in 	evidence 	because,
indeed,
	it
	seems
	to
	me
	to
	be 	an
	attempt 	toenforce
	an
	agreement 	between
	the
	parties
..•
The
	charge
	was
	then 	dismissed 	without 	leave 	to
	amend.
DISCUSSION
Section
	3541.S(b)
	provides
	that 	this
...
	board
	shall
	not
	have
	authority 	toenforce 	agreements 	between
	the
	parties,
	and
shall
	not 	issue
	a
	complaint
	on 	any
	chargebased 	on
	alleged 	violation 	of
	such 	an
agreement
	that
	would
	not
	also 	consitute
	an
unfair
	prac"ETce·-uooer-fffis 	chapf"er.
(Emp
	as1s
	a
	ded.)	
-
2
Transcript,
	page 	2, 	of
	a
	hearing 	held 	in 	San
	Bernardino,
California, 	Thursaay, 	April 	16, 	1980,
	at 	10:00 	a.m.
3

Thus,
	the
	fact 	that
	a
	party's
	actions
	breach
	an
	existing
contract
	does
	not, 	in
	and
	of
	itself,
	defeat
	PERB's
jurisdiction.
	If
	the
	action
	complained
	of
	violates
	the
	statute
as
	well
	as
	the
	contract,
	the
	underscored
	phrase
	of
section 	3541.5
(b)
	is 	satisfied.
Though
	this
	provision
	seems
	clear
	enough,
	the
	potential
	for
PERB
	jurisdiction
	where
	there
	is
	a
	concurrent
	contract
	breach
is
	further
	demonstrated
	by
	subsection
	(a)
	of
	section 	3541.5.
This
	requires
	PERB
	to 	defer
	its
	unfair
	practice
	proceedings
	to
contractual
	grievance 	procedures 	culminating 	in 	binding
arbitration
	provided,
	however,
	that
	PERB
	may
	nevertheless
proceed
	where
	resort
	to
	the
	contracted
	procedure
	is
demonstrably
	futile
	or
	where
	PERB
	finds
	that
	the
	arbitration
award
	is
	repugnant
	to 	the
	Act's
	purposes.
The	
question, 	then,
	is
	whether	
the	
District's
	action,
	if
	as
alleged
	by
	VVTA,
3	
violated
	one
	or
	more
	of 	the
	sections 	of
EERA
	cited
	in 	the
	There
	is	
no 	doubt
	that
	the
	District
unilaterally
	decided
	to
	compute
	the
	retroactive
	wages 	on 	a
per
	diem
	basis. 	Generally, 	the
	unilateral
	adoption 	of
	a 	wage
policy,
	once 	an
	exclusive 	representative
	has 	been
	recognized 	or
3
For 	purposes 	of 	determining 	whether
	a
	charge
	states
	a
prima
	facie 	violation,
	the 	facts 	alleged 	are
	deemed
	to
	be
true.
	San 	Juan 	Unified 	School
	District
	(3/10/77)
	EERB
	Decision
No.
	12.
	Prior 	to 	January 	1,
	1978,
	PERB
	was
	called 	the
Educational
	Employment
	Relations
	Board 	(EERB).
4

certified,
	would
	violate
	the 	employer's 	duty
	to
	negotiate 	in
good
	faith.4	
A
charge
	to
	that
	effect,
	however,
	would
	fail
where
	th~
	employer's
	action
	is
	not 	demonstrated
	to
	be 	an
alteration
	of
	existing
	policy
	or
	where
	the
	exclusive
representative
	has
	waived
	its
	right
	to 	negotiate
	concerning
that
	change.5
Here,
	WTA 	makes 	two
	relevant 	accusations:	
(1)	
it
	had
	been
the
	practice
	of
	the
	District
	to
	compute 	wages 	on 	a
	monthly
basis, 	this
	being
	the
	first
	instance
	where
	a
	different
	method
of
	computation
	was
	employed; 	and 	(2)
	the 	negotiated
	agreement
included 	the
	mutual
	understanding
	that that 	practice
	be
continued.
	If
	either 	assertion
	were
	proven
	to
	be
	true,
	the
District
	would
	have
	unlawfully
	unilaterally 	altered
	a 	wage
policy
	which 	had
	been
	established
	either	
by	
past 	practice
	or
negotiated
	agreement.
	The
	District's
	reliance
	on
	the	
absence
of	
a
	specific
	provision
	in 	the 	agreement
	is
	unavailing.
Failure 	to 	incorporate
	such
	a
	provision
	constitutes 	neither
	a
waiver
	on
	the
	part
	of
	VVTA
	or
	refutation
	of
	WTA's 	claim
	that
4
Pajaro Valley 	Unified 	School
	District
	(5/22/78)
	PERB
Decision
	No. 	51;	
San
Mateo Community
College
	District 	(6/8/79)
PERB	
Decision
	No.
	94; 	San
	Francisco
	Community
	College
	District(10/12/79)
	PERB
	Decision
	No.
	105.
5
walnut 	Valley 	Unified 	School
	District 	(3/30/81)
	PERB
Dec i swn-No·:--:n5""0.
5

the
	existing 	practice
	was
	to
	be
	continuea.6
PERB's
	lack 	of
	authority
	to
	enforce
	a
	collective
	agreement
does
	not
	detract
	from
	its
	ability
	to
	determine 	the
	contents
	of
such
	an
	agreement
	for 	the
	purpose
	of
	determining
	whether
	a
violation
	of 	the
	Act
	has
	occurred.7	
Here,
	WTA,
	in 	response
to 	the 	hearing
	officer's
	question,
	made
	an
	offer
	of 	proof
	as
	to
the
	meaning
	of 	the
	contract.
	That
	the 	proof
	was
	to
	come
	from
the
	District's
	own
	negotiator
	makes
	it
	particularly
	difficult
to
	understand 	the 	hearing
	officer's
	ultimate
	rejection
	of 	the
offer
	as
	insufficient
	to
	establish
	a
	prima
	facie 	violation 	of
the
	District's
	obligation
	to 	negotiate
	in
	good
	faith.
	For
example,
	if
	the
	District
	did 	agree
	to
	maintain 	the
	established
computation
	policy,
	its
	subsequent
	action 	to
	the
	contrary
	is
evidence
	that 	either
	it
	never
	gave
	its
	negotiator
	the
	authority
to
	reach 	the
	agreement
	or
	that
	it
	simply 	reneged
	on
	the
agreement
	that
	he
	did 	reach. 	Either 	of 	these
	facts
	would
	also
constitute
	a
	prima
	facie
	case
	of 	refusal
	to 	negotiate
	in
	good
6Amador
	Valley
	Joint
	Union 	High
	School
	District
	(10/2/781
PERB	
Dec1s1on 	No.
	74, 	p. 	8:
...
	generally,
	waiver 	must 	be
	established
by
	clear
	and
	unmistakable 	language,
particularly
	where 	waiver 	of
	a
	statutory
right 	is 	asserted.
7c 	& C Plywood 	Corp. 	(1967)
	385
	U.S. 	421 	f64
	LRRM
	20651.
6

faith.
	The
	hearing
	officer's
	dismissal
	of
	this
	portion 	of
	the
charge 	without 	leave 	to
	amend 	was
	in
	error.
The
	District
	asserts 	that
	because
	there
	is
	no
	contractual
grievance 	procedure,
	it
	is
	not
	obligated 	to 	consider
	WTAis
complaint
	that
	the
	retroactive
	increase 	of
	wages 	was
	calculated
on
	a
	per
	diem
	rather
	than
	monthly
	basis.8
Section
	3543
	extends
	to
	employees
	the
	right
	to
	be
represented
	in
	their
	employment
	relations
	by 	an
	organization
	of
their
	choosing.
	Section 	3543.l(a) 	provides,
	inter
	alia,
	that:
Employee
	organizations
	shall
	have
	the
	right
to 	represent
	their
	members
	in
	their
employment
	relations
	with
	public
	schoolemployers,
	...
These
	rights
	are
	not
	limited
	by
	any
	requirement
	that
	the
representational
	procedure
	be
	defined
	and
	provided
	by
contract.9
Section
	3543.S(a)
	makes
	it
	unlawful
	to
	interfere
	with
rights
	guaranteed
	to
	employees
	by
	the	
Act	
and
	section
	3543.S(b)
makes
	it
	unlawful
	to
	deny
	to
	employee
	organizations
	their
statutory 	rights.
	A
refusal
	by
	the
	District
	to 	discuss 	the
8The
	hearing
	officer,
	it
	should
	be
	noted,
	fails
	to
discuss 	this
	aspect 	of
	VVTA's
	complaint.
	Nor,
	for
	that 	matter,
is
	the 	dismissal 	for
	this
	charge 	explained.
9
rndeed, 	section
	3543.1 	extends 	such
	rights 	to
nonexclusive 	representatives 	until
	such 	time 	as 	an
	exclusive
representative
	has 	been 	recognized 	or
	certified.
7

VVTA
	gr.:i.evance
	over
	the
	computation
	of
	wages 	would
	violate
	both
sections
	of
	the
	Act.
	The
	hearing
	officer's
	dismissal 	of
	this
aspect
	of 	the
	charge
	was
	also
	erroneous.
Finally,
	so
	much
	of
	WTA's
	charge
	which
	alleges
	that
	the
District's
	actions
	were
	in
	reprisal
	against 	unit
	employees
	is
unsupported
	by
	any
	factual 	allegations.
	Nor
	did
	WTA
	offer
	to
amend
	its
	charge
	to
	cure
	this 	defect.
	This
	portion
	of 	the
charge
	is
	therefore
	dismissed.
Based
	on	
the 	foregoing
	this
	case
	is
	hereby
	remanded
	to 	the
chief 	administrative
	law
	judge 	with
	the
	provision
	that
	VVTA
	be
permitted 	to
	amend
	its
	charge 	in 	accordance 	with
	its
	offer
	of
proof
	made
	to
	the 	hearing
	officer.
	The
	chief 	administrative
law
	judge,	
upon	
determining
	that
	the
	amended
	charge,
	if
submitted,
	states
	a
	prima
	facie 	violation
	of
	any
	cited 	section
of 	the
	EERA,
	shall
	then
	issue
	a
	complaint
	and
	process
	this
	case
in 	accordance 	with
	Board
	procedures.
ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record 	in
	this
case,
	the 	Public
	Employment
	Relations
	Board
	ORDERS
	that 	the
hearing
	officer's
	order 	of 	dismissal
	is
	reversed
	and
	that
	the
matter
	is
	remanded
	to 	the 	chief 	adminstrative
	law
	judge
	for 	the
purpose 	of 	permitting 	the 	Victor 	Valley 	Teachers 	Association 	to
amend
	its
	charges 	in 	accordance 	with
	this 	decision 	provided,
8

Valley
	however,
	that 	that
	portion
	of 	the 	Victor
	Teachers
which
	alleges 	that
	the
	Victor 	Valley
	Joint
Association's
	charge
Union 	High
	School
	District
	acted
	to
	take
	reprisals
	against
employees
	in 	the
	unit 	is
	dismissed
	with
	prejudice.
By:	
GFut:k,	
Chairperson	
/Y	
Irene
	Tovar,
	Member
"