Delano Union Elementary School District (PERB 0213E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DELANO 	UNION 	ELEMENTARY 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
DELANO 	UNION 	ELEMENTARY 	SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
____________________ )
Case 	No. 	LA-CE-1062
PERB 	Decision 	No. 	213
April 	30, 	1982
Appearances: 	Charles 	R. 	Gustafson, 	Attorney 	(California
Teachers 	Association) 	for 	the 	Delano 	Union 	Elementary 	Teachers
Association, 	CTA/NEA; 	Carl 	B. 	A. 	Lang 	III, 	Labor 	Relations
Director 	(Schools 	Legal 	Service) 	for 	the 	Delano 	Union
Elementary 	School 	District.
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Moore, 	Members.
DECISION
This 	matter 	is 	before 	the 	Public 	Employment 	Relations 	Board
(PERB) 	as 	a 	result 	of 	the 	Delano 	Union 	Elementary 	School
District's 	(District) 	exceptions 	to 	the 	proposed 	decision 	of
the 	PERB 	hearing 	officer. 	The 	District 	was 	found 	to 	have
violated 	subsections 	3543. 5 (a), 	(b) 	and 	(c) 	of 	the 	Educati o nal
Employment 	Relations 	Act .l 	We 	affirm 	the 	deci s ion 	of
the 	hearing 	officer 	and 	adopt 	hi s 	findings 	of 	fac t 	and
lThe 	Educational 	Emp lo yment 	Rela t i o ns 	Act 	i s 	codif i ed 	at
Government 	Code 	section 	3540, 	et 	seq. 	All 	statutory 	r eferences
in 	this 	decision 	are 	to 	the 	Government 	Code 	unless 	o t herwise
notedo

2
conclusions 	of 	law 	insofar 	as 	they 	are 	consistent 	with 	our
decision.
FACTS
On May 	12, 	1976 	the 	Delano 	Union 	Elementary 	Teachers
Association 	(Association) 	was 	voluntarily 	recognized 	by 	the
District 	as 	the 	exclusive 	bargaining 	representative 	of 	all
non-managerial 	certificated 	employees 	of 	the 	District. 	As 	a
result 	of 	the 	discussions 	between 	the 	parties 	that 	ultimately
lead 	to 	the 	recognition, 	they 	agreed 	to 	an 	appropriate 	unit 	for
negotiating 	and 	certain 	employees 	in 	the 	position 	of 	"Migrant
Resource 	Teachers" 	were 	excluded 	from 	the 	unit. 	This 	was
accomplished 	pursuant 	to 	agreements 	to 	divide 	the 	resource
teacher 	position 	into 	two 	classifications, 	designating 	one
"District 	Resource 	Teacher" 	and 	the 	other 	"On-site 	Resource
T~acher." 	They 	excluded 	the 	"District 	Resource 	Teacher" 	from
the 	unit. 	District 	resource 	teachers 	were 	to 	have
District-wide 	responsibilities 	for 	certain 	programs. 	On-site
resource 	teachers 	were 	to 	have 	responsibilities 	at 	individual
school 	sites.
As 	further 	factual 	background, 	we 	take 	note 	of 	information
contained 	in 	this 	record, 	indicating 	tha t 	a 	set 	of 	cross 	unfair
charges 	were 	filed 	by 	these 	parties 	with 	PERB 	in 	the 	fall 	of
1978.2 	These 	charges 	arose 	in 	part 	out 	of 	the 	alleged
2The 	cases 	involved 	were 	LA - C0-59, 	filed 	9/6 / 78 	and
LA-CE-390, 	filed 	9/11/78.
2

W
participation 	of 	a 	District 	resource 	teacher 	in 	Association
activities 	and 	the 	District's 	alleged 	unlawful 	response 	to 	that
activity. 	In 	settling 	those 	charges, 	the 	parties 	agreed 	that
they 	would 	jointly 	seek 	a 	modification 	of 	the 	certified 	unit 	in
order 	to 	place 	District 	resource 	teachers 	in 	the 	unit.
The 	Association 	filed 	a 	unit 	modification 	petition 	with
PERB 	on May 	15, 	1979. 	PERB 	was 	informed 	by 	the 	District 	that
it 	did 	not 	oppose 	the 	unit 	modification. 	The 	PERB 	Los 	Anqeles
Regional 	Office 	was 	notified 	by 	the 	District 	that 	the 	posting
period 	was 	completed 	on 	September 	26, 	1979 	and 	on 	that 	same
date 	a 	certification 	issued 	that 	added 	to 	the 	unit 	the
positions 	of 	"District 	Migrant 	Resource 	Teacher" 	and 	"District
Resource 	Teacher."
Two 	interwoven 	but 	separate 	acts 	are 	at 	issue 	here. 	For
purposes 	of 	factual 	clarity 	we 	shall 	sectionalize 	below 	the 	two
incidents 	that 	are 	the 	essence 	of 	the 	unfair 	charges.
Subsection 	3543.S(a) 	Violation:
Ray 	Barney 	commenced 	employment 	with 	the 	District 	in 	1971.
He 	taught, 	over 	the 	course 	of 	his 	tenure, 	first 	and 	second
grades, 	seventh 	and 	eighth 	grade 	reading, 	and 	eighth 	grade 	math.
By 	1978 	Barney 	was 	president 	of 	the 	Association 	and 	active
in 	negotiations. 	He 	was 	asked 	by 	District 	Superintendent
David 	Yetter 	on 	June 	6, 	1978, 	if 	he 	was 	interested 	in 	accepting
a 	migrant 	resource 	teacher 	position.
3

Barney 	accepted 	the 	offer 	and 	he 	resigned 	his 	Association
presidency 	to 	become 	a 	"District 	Migrant 	Resource 	Teacher" 	in
August 	of 	1978. 	Over 	the 	course 	of 	the 	1978-79 	school 	year
Barney 	was 	reprimanded 	twice 	by 	the 	District 	for 	being 	involved
in 	Association 	activities.
By May 	of 	1979, 	the 	parties 	had 	moved 	toward 	a 	resolution
of 	the 	dispute 	concerning 	the 	status 	of 	migrant 	resource
teachers. 	The 	Association 	had 	filed 	the 	unit 	modification 	that
would 	bring 	Barney's 	position 	into 	the 	unit. 	In 	July, 	the
District 	went 	on 	record 	as 	unopposed 	to 	the 	modification. 	The
posting 	period 	was 	completed 	on 	September 	26, 	1979 	and 	on 	that
same 	date 	a 	certification 	was 	issued 	by 	PERB.
During 	the 	period 	between 	the 	District's 	July 	11, 	1979
statement 	of 	support 	for 	the 	unit 	modification 	and 	the
September 	26, 	1979 	PERB 	certification, 	Ray 	Barney 	was 	a
featured 	speaker 	at 	an 	Association 	meeting 	on 	September 	17.
Barney's 	participation 	at 	th i s 	meeting 	was 	widely
advertised. 	He 	primarily 	answered 	members' 	questions 	regarding
contract 	provisions 	on 	class 	size, 	grievances 	and 	preparation
time. 	Barney 	believed 	the 	unit 	modification 	had 	been 	completed
prior 	to 	the 	date 	he 	spoke. 	Association 	President
Mary-Lou 	Worley 	had 	mistakenly 	advised 	Barney 	that 	he 	was 	1n
the 	unit. 	In 	fact, 	however, 	Barney 	did 	not 	become 	a 	unit
member 	for 	nine 	more 	days.
4

Regardless 	of 	the 	September 	26, 	1979 	certification, 	on
October 	2, 	1979, 	Barney 	received 	a 	formal 	letter 	of 	reprimand
for 	speaking 	at 	the 	September 	17, 	1979 	Association
meeting.3
3The 	letter 	of 	reprimand 	reads 	as 	follows:
October 	2, 	1979
Mr. 	Raymond 	Barney
Migrant 	Resource 	Teacher
Delano 	Union 	School 	District
Dear 	Mr. 	Barney:
From 	copies 	of 	literature 	recently
distributed 	to 	teachers 	in 	the 	collective
bargaining 	unit, 	it 	appears 	that 	you 	have
been 	involved 	in 	and 	perhaps 	conducted 	a
meeting 	to 	explain 	the 	DUESTA/CTA/NEA
collective 	bargaining 	agreement 	to 	DUESTA
members.
Your 	conduct 	in 	this 	matter 	is 	the 	cause 	for
this 	letter 	of 	reprimand 	being 	written. 	The
unit 	modification 	petition 	which 	DUESTA
submitted 	to 	PERB 	is 	still 	in 	process 	and
has 	not 	yet 	become 	final. 	As 	a 	consequence,
you 	have 	involved 	yourself 	in 	a 	meeting 	of
the 	collective 	bargaining 	unit 	while 	still 	a
member 	of 	the 	management 	team. 	As 	such,
your 	actions 	could 	bring 	liability 	to 	the
employer 	for 	interference 	in 	the 	activities
of 	the 	certificated 	employee 	organization.
You 	have 	been 	warned 	one 	other 	time 	that 	you
were 	to 	refrain 	from 	any 	contact 	or
activities 	involving 	DUESTA 	while 	you 	were 	a
member 	of 	the 	management 	team. 	You
apparently 	have 	failed 	to 	adhere 	to 	this
warning 	and 	have 	involved 	yourself 	in
activities 	of 	the 	DUESTA. 	As 	a 	consequence,
5

this 	letter 	of 	reprimand 	will 	be 	placed 	in
your 	permanent 	file 	and 	made 	a 	part 	thereof.
Sincerely,
David 	E. 	Yetter
District 	Superintendent
That 	letter 	of 	reprimand 	was 	found 	by 	the 	hearing 	officer
to 	violate 	subsections 	3543.S(a) 	and 	(b}.
Subsection 	3543.S(c) 	Violation:
As 	a 	result 	of 	the 	1976 	contract 	negotiations, 	including
the 	creation 	of 	the 	two 	positions 	of 	District 	and 	on-site
resource 	teachers, 	the 	parties 	negotiated 	a 	salary 	and 	benefit
schedule 	for 	teachers 	that 	did 	not 	include 	District 	resource
teachers.
District 	resource 	teachers' 	salaries 	were 	paid 	according 	to
a 	document 	entitled, 	"Management 	Support 	Personnel 	Salary
Schedule." 	They 	worked 	ten 	more 	days 	per 	year 	and 	one-half
hour 	more 	per 	day 	than 	on-site 	resource 	teachers. 	They
received 	an 	annual 	salary 	which 	was 	more 	than 	$1,000 	greater
than 	the 	salary 	they 	would 	have 	received 	on 	the 	teacher 	salary
schedule. 	The 	District 	resource 	teachers' 	existing 	salary
schedule 	was 	not 	modified 	by 	the 	employer's 	subsequent
agreement 	to 	include 	these 	employees 	in 	the 	unit.
On-site 	resource 	teachers' 	salaries 	were 	determined 	on 	the
basis 	of 	an 	amalgam 	of 	factors. 	Beginning 	in 	1974, 	resource
teachers 	were 	paid 	an 	additional 	annual 	stipend 	of 	$1,000 	to
compensate 	for 	ten 	extra 	workdays 	per 	year 	and 	additional 	duty
6

7
in 	supervising 	migrant 	tutor 	aides. 	With 	the 	1976 	position
division, 	on-site 	resource 	teachers 	continued 	to 	receive 	an
additional 	$1,000 	but 	they 	were 	required 	to 	work 	only 	an
additional 	five 	days 	annually 	and 	their 	hours 	required 	an
additional 	one-half 	hour 	per 	day 	more 	than 	regular 	classroom
teachers.
The 	contract 	between 	the 	parties 	does 	not 	spell 	out 	the
unique 	salary 	and 	working 	conditions 	of 	the 	on-site 	resource
teachers. 	However, 	past 	practice 	indicates 	that 	the 	parties
have 	had 	no 	disagreement 	about 	salaries 	and 	working 	conditions
for 	on-site 	resource 	teachers 	despite 	the 	lack 	of 	contractual
specificity.
As 	previously 	noted, 	in 	May 	of 	1979 	the 	Association
formally 	filed 	a 	unit 	modification 	petition 	with 	PERB. 	The
parties 	had 	engaged 	in 	discussions 	leading 	to 	this 	step 	during
the 	course 	of 	the 	1978-79 	school 	year. 	This 	petition
represented 	a 	first 	step 	toward 	the 	ultimate 	resolution 	of 	the
long-standing 	District 	resource 	teacher 	status 	problem.
On 	November 	26, 	1979, 	the 	Association 	requested
negotiations. 	It 	submitted 	a 	negotiating 	proposal 	concerning
wages 	and 	hours 	of 	District 	resource 	teachers 	the 	following
day. 	The 	school 	board 	conducted 	a 	public 	hearing4 	of 	the
4section 	3547 	requires 	that 	all 	initial 	proposals 	of
exclusive 	representatives 	and 	public 	school 	employers 	be
presented 	at 	a 	public 	meeting 	for 	comment 	by 	the 	public 	before
meeting 	and 	negotiating 	on 	the 	proposals 	take 	place.
7

8
Association 	proposal 	on 	December 	12, 	1979. 	Thereafter 	the
parties 	met 	and 	negotiated 	until 	the 	hearing 	in 	this 	matter.
In 	the 	six 	months 	between 	the 	May 	petition 	to 	modify 	the
unit 	and 	the 	November 	26, 	1979 	request 	for 	negotiation, 	the
Association 	did 	not 	present 	any 	proposals .5 	Association
President 	Worley 	testified 	she 	believed 	the 	modification 	was
completed 	before 	the 	Association 	meeting 	of 	September 	17,
1979. 	It 	actually 	was 	not 	final 	until 	September 	26, 	1979.
On 	the 	very 	next 	day, 	September 	27, 	1979, 	the 	school
District 	board 	of 	trustees 	adopted 	a 	resolution 	which 	placed
the 	District 	resource 	teachers 	on 	the 	regular 	teacher 	salary
schedule 	with 	the 	additional 	stipend, 	workday 	length 	and 	school
term 	of 	on-site 	resource 	teachers. 	This 	placed 	the 	District
resource 	teachers 	at 	parity 	with 	on-site 	teachers 	but
unilaterally 	changed 	their 	established 	pay, 	hours 	and 	term
length.
The 	September 	27, 	1979 	board 	of 	trustees 	actions 	were 	found
by 	the 	hearing 	officer 	to 	violate 	subsections 	3543.S(a), 	{b)
and 	(c).
5Good 	labor 	relations 	practices 	would 	disclose 	early
discussions 	over 	the 	impending 	unit 	addition. 	No 	evidence 	in
the 	record 	indicates 	such 	anticipation 	of 	the 	issue. 	We 	take
note 	that 	no 	duty 	to 	bargain 	arises 	until 	the 	unit 	is 	certified
and 	therefore 	the 	Association 	could 	not 	have 	made 	a 	statutory
demand 	to 	negotiate 	on 	any 	proposal 	until 	September 	26, 	1979.
This 	delay 	is 	unfortunate 	but 	legally 	irrelevant .
8

DISCUSSION
Subsection 	3543.S(a) 	and 	(b) 	Violation:
Subsection 	3543.S{a) 	prohibits 	public 	school 	employers 	from
imposing 	reprisals 	on 	employees, 	discriminating 	against 	or
otherwise 	interfering 	with 	employees 	"because 	of 	their 	exercise
of 	rights 	guaranteed 	by 	this 	chapter." 	Subsection 	3543.S(b)
prohibits 	public 	school 	employers 	from 	denying 	employee
organizations 	rights 	guaranteed 	to 	them 	by 	the 	Act. 	These
subsections 	read 	in 	concert 	with 	section 	35436 	guarantee
public 	school 	employees 	and 	their 	organizations 	the 	right 	to
participate 	in 	the 	activities 	of 	employee 	organizations 	free
from 	adverse 	consequences.
Ray 	Barney 	was 	reprimanded 	for 	speaking 	at 	the
September 	17, 	1979 	Association 	meeting. 	In 	Carlsbad 	Unified
School 	District 	(1/30/79) 	PERB 	Decision 	No. 	89, 	we 	enunciated
the 	applicable 	test 	for 	alleged 	violations 	of 	subsection
3543.S(a). 	We 	determined 	that, 	in 	an 	interference 	case, 	the
charging 	party 	must 	present 	sufficient 	evidence 	to 	establish
that 	the 	respondent's 	conduct 	tends 	to 	or 	does 	result 	in 	some
6section 	3543 	provides, 	in 	relevant 	part, 	as 	follows:
Public 	school 	employees 	shall 	have 	the 	right
to 	form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations .•.•
9

10
harm 	to 	employee 	rights 	guaranteed 	by 	the 	Act. 	This 	evidence
must 	demonstrate 	a 	nexus 	between 	the 	respondent's 	act 	and 	the
exercise 	of 	a 	statutory 	right 	vested 	in 	the 	charging 	party,
thereby 	establishing 	a 	prima 	facie 	case. 	The 	respondent 	must
then 	produce 	evidence 	sufficient 	to 	establish 	that, 	on 	balance,
respondent's 	bona 	fide 	business 	interests 	outweigh 	the 	harm 	to
employee 	rights.
The 	District 	does 	not 	deny 	that 	speaking 	at 	an 	Association
meeting 	is 	protected 	activity, 	but 	rather 	asserts 	that 	Barney
was 	not 	an 	"employee" 	within 	the 	meaning 	of 	subsection
3540.l(j) 	of 	the 	Act.7
It 	is 	undeniable 	that 	Barney 	was 	not 	yet 	a 	unit 	member 	on
September 	17. 	However, 	being 	outside 	the 	unit 	does 	not
establish 	that 	he 	was 	not 	an 	"employee" 	within 	the 	meaning 	of
EERA. 	The 	parties' 	prior 	agreement 	to 	exclude 	these 	employees
as 	managers 	is 	not 	binding 	on 	the 	Board. 	Accordingly, 	an
examination 	of 	an 	individual's 	duties 	is 	the 	proper 	inquiry 	to
?subsection 	3540.l(j) 	states:
"Public 	school 	employee" 	or 	"employee" 	means
any 	person 	emplo y ed 	by 	any 	publi c 	school
employer 	excep t 	persons 	elected 	by 	popu l ar
vote, 	persons 	appointed 	by 	the 	Governor 	of
this 	state, 	management 	employees, 	and
confidential 	employees.
10

11
determine 	managerial 	status, 	and 	the 	burden 	of 	proof 	is 	the
District's. 	Commercial 	Movers, 	Inc. 	(1979) 	240 	NLRB 	No. 	24
[100 	LRRM 	1206]; 	Unit 	Determination 	for 	the 	State 	of 	California
(12/31/80) 	PERB 	Decision 	No. 	ll0c-S.
The 	record 	provides 	substantial 	support 	for 	the 	conclusion
of 	the 	hearing 	officer 	that 	Barney 	was 	not 	a 	management 	or
supervisory 	employee 	on 	September 	17.8 	Barney 	had 	no
8These 	various 	terms 	are 	defined 	in 	section 	3540.1 	as
follows:
(g) 	"Management 	employee" 	means 	any
employee 	in 	a 	position 	having 	significant
responsibilities 	for 	formulating 	district
policies 	or 	administering 	district
programs. 	Management 	positions 	shall 	be
designated 	by 	the 	public 	school 	employer
subject 	to 	review 	by 	the 	Educational
Employment 	Relations 	Board .
. . . 	. 	. . 	. 	. 	. 	. 	. 	. 	. 	. . 	. 	.
(m) 	"Supervisory 	employee" 	means 	any
employee, 	regardless 	of 	job 	description,
having 	authority 	in 	the 	interest 	of 	the
employer 	to 	hire, 	transfer, 	suspend, 	lay
off, 	recall, 	promote, 	discharge, 	assign,
reward, 	or 	discipline 	other 	employees, 	or
the 	responsibi lity 	to 	assign 	work 	to 	and
direct 	them, 	or 	to 	adjust 	their 	grievances,
or 	effectively 	recommend 	such 	action, 	if, 	in
connection 	wi th 	the 	foregoing 	functions, 	the
exercise 	of 	such 	authority 	is 	not 	o f 	a
merely 	routine 	or 	clerical 	nature, 	but
requires 	the 	use 	of 	independent 	judgment.
11

12
significant 	responsibility 	for 	formulating 	policy 	or
administering 	District 	programs. 	Oakland 	Unified 	School
District 	(11/25/81) 	PERB 	Decision 	No. 	182. 	Barney 	did 	not
hire, 	discharge, 	assign 	or 	discipline 	other 	certificated
employees. 	New 	Haven 	Unified 	School 	District 	(3/22/77) 	EERB
Decision 	No. 	14. 	Indeed, 	beyond 	the 	District's 	legally
dispositive 	failure 	to 	meet 	its 	burden 	of 	proving 	Barney's
management 	status, 	we 	are 	mindful 	of 	the 	District's 	agreement
to 	the 	propriety 	of 	designating 	these 	individuals 	as
"employees" 	and 	including 	this 	position 	in 	the 	unit 	months
before 	the 	September 	17 	Association 	meeting.
We 	conclude 	that 	Barney 	is 	an 	employee 	under 	the 	Act 	and
that 	he 	has 	established 	a 	prima 	facie 	case. 	The 	District
offers 	no 	argument 	that 	its 	conduct 	with 	respect 	to 	Barney 	was
excused 	by 	operational 	necessity. 	We 	therefore 	affirm 	the
findings 	of 	fact 	and 	conclusions 	of 	law 	of 	the 	hearing 	officer
that 	the 	District 	violated 	subsections 	3543.S(a) 	and 	(b) 	by
reprimanding 	Mr. 	Ray 	Barney 	for 	participating 	in 	the
September 	17 , 	1979 	Association 	meeting.
Subsection 	3543.S(c) 	Violation:
The 	first 	legally 	significant 	action 	in 	this 	case 	occurred
on 	May 	15, 	1979 	when 	the 	unit 	modification 	petition 	was 	filed.
The 	District 	indicated 	its 	acceptance 	of 	this 	modification 	on
July 	11, 	1979. 	From 	that 	date 	forward 	the 	parties 	had
constructive 	notice 	of 	the 	impending 	addition 	of 	District
12

13
resource 	teachers 	to 	the 	unit. 	On 	September 	26, 	the 	Los 	Angeles
Regional 	Director 	issued 	a 	certification 	that 	the 	subject
positions 	had 	been 	added 	to 	the 	unit, 	after 	notification 	by 	the
District 	of 	completion 	of 	the 	posting 	period.9
This 	certification 	triggered 	the 	parties' 	legal 	obligation
to 	meet 	and 	negotiate. 	The 	next 	day, 	September 	27, 	1979, 	the
District 	board 	of 	trustees 	passed 	a 	resolution 	that 	changed 	the
pay, 	work 	hours 	and 	workyear 	of 	District 	resource 	teachers. 	It
did 	so 	without 	benefit 	of 	negotiation 	with 	the 	Association.
The 	District 	argues 	that 	the 	Association 	waived 	its 	right
to 	meet 	and 	negotiate.
Before 	a 	District 	can 	take 	unilateral 	action 	affecting 	a
matter 	within 	the 	scope 	of 	representationl0 	it 	must 	give
9The 	posting 	requirements 	as 	set 	forth 	at 	title 	8,
California 	Administrative 	Code, 	section 	33262 	were:
(a) 	The 	employer 	shall 	post 	a 	notice 	of 	the
petition 	within 	five 	workdays 	following 	its
filing 	of 	or 	receipt 	of 	a 	copy 	of 	the
petition.
(b) 	The 	notice 	shall 	be 	posted
conspicuously 	on 	all 	employee 	bulletin
boards 	in 	each 	facility 	of 	the 	employer 	in
which 	members 	of 	the 	unit(s) 	claimed 	to 	be
appropriate 	are 	employed.
(c) 	The 	notice 	shall 	remain 	posted 	15
workdays .
lOThe 	parties 	do 	not 	dispute 	the 	fact 	that 	the 	subject
matter 	of 	the 	alleged 	unilateral 	change 	falls 	within 	the 	scope
13

notice 	and 	an 	opportunity 	to 	negotiate 	to 	the 	exclusive
representative. 	Oakland 	Unified 	School 	District 	(4/23/80) 	PERB
Decision 	No. 	126, 	enfd. 	120 	Cal.App.3d 	1007 	(1981); 	Davis
Unified 	School 	District 	et 	al. 	(12/22/80) 	PERB 	Decision
No. 	116. 	A waiver 	of 	that 	opportunity 	to 	negotiate 	will 	not 	be
found 	absent 	clear 	and 	unmistakable 	language 	or 	demonstrative
of 	representation 	as 	defined 	by 	section 	3543.2. 	That 	section
states:
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
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.
14

behavior 	waiving 	a 	reasonable 	opportunity 	to 	bargain 	over 	a
decision 	not 	already 	firmly 	made 	by 	the 	employer. 	Sutter 	Union
High 	School 	District 	{10/7/81) 	PERB 	Decision 	No. 	175;
Insulating 	Fabricators, 	Inc. 	{1963) 	144 	NLRB 	No. 	125.
The 	duty 	to 	bargain 	concerning 	the 	District 	resource
teachers 	legally 	arose 	on 	September 	26, 	1979 	when 	the 	PERB
certification 	issued. 	Nothing 	in 	the 	record 	demonstrates 	that
the 	District 	gave 	the 	Association 	the 	opportunity 	to 	bargain
before 	it 	took 	its 	unilateral 	action 	on 	September 	27, 	1979.
Once 	the 	District 	made 	its 	unilateral 	decision, 	one 	day 	after
the 	certification, 	it 	denied 	the 	Association 	the 	opportunity 	to
bargain 	and 	it 	demonstrated 	a 	decision 	firmly 	made 	to
unilatera l ly 	change 	the 	wages, 	hours 	and 	term-length 	of 	the 	new
unit 	members. 	We 	find 	no 	behavior 	in 	that 	24-hour 	period 	from
which 	we 	can 	infer 	a 	waiver 	of 	the 	right 	to 	negotiate.
The 	District 	also 	argues 	that 	this 	change 	in 	compensation
was 	simply 	a 	withdrawal 	of 	that 	sum 	of 	money 	attributable 	to
the 	position's 	management 	duties . 	Since 	we 	have 	previously
determined 	that 	these 	employees 	we r e 	not 	manage r ial , 	the
District 	could 	not 	base 	the 	r educt i on 	of 	wages 	on 	t he
withdrawal 	o f 	" management 	duti es . " 	We 	ther ef ore 	r eje ct 	t hi s
a r g ume n t.
We 	af f irm 	the 	f i ndings 	o f 	fac t 	and 	conc l usi on 	of 	l aw 	of 	the
hearing 	offi c e r 	t hat 	the 	District 	v i olated 	s ub sectio ns
354 3. 5 (a} , 	(b} 	a nd 	(c) .
15

16
REMEDY
We 	affirm 	the 	appropriateness 	of 	the 	hearing 	officer's
remedy 	including 	return 	to 	the 	status 	quo 	ante.
The 	Board 	further 	orders 	that 	the 	parties 	return 	to 	the
negotiating 	table 	if 	they 	have 	not 	already 	done 	so, 	should 	the
Association 	so 	request, 	to 	negotiate 	the 	wages, 	hours 	and 	term
length 	of 	District 	resource 	teachers.
The 	District 	shall 	also 	be 	required 	to 	sign 	and 	post 	the
Notice 	to 	Employees 	attached 	to 	this 	decision 	as 	an 	appendix.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to 	Government
Code 	subsection 	3541.S(c) 	of 	the 	Educational 	Employment
Relations 	Act, 	it 	hereby 	is 	ORDERED 	that 	the 	Delano 	Union
Elementary 	School 	District 	board 	of 	trustees, 	superintendent
and 	their 	respective 	agents 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Imposing 	reprisals 	on 	Raymond 	Barney 	by 	retaining
or 	otherwise 	giving 	any 	force 	or 	effect 	to 	the 	letter 	of
reprimand 	dated 	October 	2, 	1979 	which 	was 	placed 	in 	the
personnel 	file 	of 	Mr. 	Barney 	by 	District 	Superintendent
David 	Yetter, 	in 	violation 	of 	Government 	Code 	subsections
3 5 4 3 . 5 (a) 	and 	( b ) •
2. 	Unilaterally 	affecting 	the 	wages, 	hours 	and
length 	of 	the 	working 	year 	of 	District 	resource 	teachers 	by
16

17
giving 	any 	force 	or 	effect 	to 	the 	September 	27, 	1979 	resolution
of 	the 	District 	board 	of 	trustees 	which 	placed 	District
resource 	teachers 	on 	the 	same 	salary 	schedule 	with 	other
teachers 	and 	shortened 	the 	length 	of 	the 	workday 	and 	work 	year
of 	District 	resource 	teachers, 	in 	violation 	of 	Government 	Code
subsections 	3543. 5 (a), 	(b) 	and 	(c).
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EERA:
1. 	Remove 	the 	October 	2, 	1979 	letter 	of 	reprimand
from 	the 	personnel 	file 	of 	Raymond 	Barney 	and 	destroy 	it 	and
all 	copies 	which 	exist 	in 	District 	personnel 	records.
2. 	Reinstate, 	retroactive 	to 	September 	27, 	1979, 	the
schedule 	and 	make 	whole 	all 	persons 	who 	thereafter 	served 	in
the 	position 	of 	the 	District 	resource 	teacher 	for 	any 	losses 	in
wages 	or 	benefits 	which 	they 	incurred 	as 	a 	result 	of 	the
District's 	unilateral 	abolition 	of 	that 	salary 	schedule,
together 	with 	interest 	paid 	at 	the 	rate 	of 	seven 	percent 	per
annum.
3. 	Immediately 	reinstate 	for 	all 	District 	resource
teachers, 	the 	work 	hours 	and 	workyear 	which 	were 	in 	effect
prior 	to 	September 	27, 	1979.
4. 	Upon 	demand, 	meet 	and 	negotiate 	in 	good 	faith
with 	the 	Delano 	Union 	Elementary 	Teachers 	Association, 	CTA/NEA,
about 	the 	wages , 	hours, 	workyear 	and 	other 	matters 	within 	the
scope 	of 	representation 	for 	District 	resource 	teachers.
17

18
5. 	Within 	seven 	(7) 	workdays 	after 	the 	date 	of
service 	of 	the 	decision 	in 	this 	matter, 	post 	at 	all 	work
locations 	where 	notices 	to 	employees 	customarily 	are 	posted,
copies 	of 	the 	Notice 	attached 	as 	an 	appendix 	hereto 	signed 	by
an 	authorized 	agent 	of 	the 	employer. 	Such 	posting 	shall 	be
maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive 	workdays.
Reasonable 	steps 	shall 	be 	taken 	to 	ensure 	that 	the 	notices 	are
not 	altered, 	reduced 	in 	size, 	defaced 	or 	covered 	with 	any 	other
mater ia 1.
6. 	Within 	forty-five 	(45) 	consecutive 	workdays 	from
the 	service 	of 	the 	final 	decision 	herein, 	notify 	the
Los 	Angeles 	regional 	director 	of 	the 	Public 	Employment
Relations 	Board 	in 	writing 	of 	what 	steps 	the 	employer 	has 	taken
to 	comply 	with 	the 	terms 	of 	this 	decision. 	All 	reports 	to 	the
regional 	director 	shall 	be 	served 	concurrently 	on 	the 	charging
party 	herein.
This 	order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	Delano 	Union 	Elementary 	School
District.
By:
JohW w. 	Jaeger, 	Mernoer 	Barbara 	D. 	Moore, 	11ember
Chairperson 	Gluck's 	concurrence 	and 	dissent 	beg i ns 	on 	page 	19 .
<
18

19
Harry 	Gluck, 	Chairperson, 	concurring 	and 	dissenting:
I 	concur 	in 	the 	conclusions 	reached 	by 	the 	majority. 	By
its 	consent 	to 	the 	unit 	modification, 	the 	District 	had 	already
conceded 	Barney's 	employee 	status 	prior 	to 	his 	appearance 	at
the 	union 	meeting. 	Even 	a 	mistaken 	belief 	as 	to 	the 	status 	of
an 	employee 	has 	been 	held 	not 	to 	exonerate 	interference 	with
protected 	activities. 	See 	NLRB 	v. 	Burnup 	& Sims 	Inc. 	(1964)
379 	U.S. 	21 	[57 	LR.RM 	2385]. 	The 	District 	simply 	had 	no
legitimate 	business 	justification 	for 	the 	reprimand. 	See
Carlsbad, 	supra, 	and 	Novato 	Unified 	School 	District 	(4 	/30/82)
PERB 	Decision 	No. 	210.
I 	disagree 	with 	the 	majority's 	make-whole 	remedy. 	The
affected 	employees 	have 	worked 	a 	reduced 	schedule 	of 	hours 	for
the 	past 	two 	and 	one-half 	yea r s. 	It 	is 	punitive 	to 	require
that 	they 	be 	paid 	for 	hours 	not 	worked; 	it 	is 	unreasonable 	to
reinstate 	the 	longer 	work 	schedule, 	absent 	evidence 	that 	those
extra 	hours 	of 	work 	are 	required. 	The 	parties 	opened
negotiations 	two 	months 	after 	the 	unilateral 	change 	and 	unit
modification 	order 	and 	were 	still 	meeting 	when 	the 	unfair
practice 	hearing 	closed. 	The 	majority 	has 	not 	cons i dere d 	that
settlement 	of 	this 	issue 	may 	have 	been 	reached. 	Therefore, 	I
would 	limit 	the 	back-pay 	award 	to 	an 	amount 	reflecting 	the
19

reduced 	work 	schedule 	and 	limited 	to 	the 	period 	commencing 	on
the 	date 	the 	unilateral 	wage 	change 	was 	made 	and 	ending 	when
the 	parties 	reached 	agreement 	or 	final 	impasse.
Harry 	Gluck, 	Chairperson
20

1
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. 	LA-CE-1062,
Delano 	Union 	Elementary 	Teachers 	Association, 	CTA/NEA 	v. 	Delano
Union 	Elementary 	School 	District, 	in 	which 	all 	parties 	had 	the
right 	to 	participate, 	it 	has 	been 	found 	that 	the 	Delano 	Union
Elementary 	School 	District 	violated 	the 	Educational 	Employment
Relations 	Act, 	Government 	Code 	subsections 	3543.S(a), 	(b) 	and
( C) •
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
this 	notice 	and 	we 	will 	abide 	by 	the 	following:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Imposing 	reprisals 	on 	Raymond 	Barney 	by 	retaining
or 	otherwise 	giving 	any 	force 	or 	effect 	to 	the 	letter 	of
reprimand 	dated 	October 	2, 	1979 	which 	was 	placed 	in 	the
personnel 	file 	of 	Mr. 	Barney 	by 	District 	Superintendent
David 	Yetter, 	in 	violation 	of 	Government 	Code 	subsections
3543. 5 (a) 	and 	(b).
2 . 	Unilateral ly 	affecting 	the 	wages, 	hours 	and
length 	of 	the 	working 	year 	of 	District 	resource 	teachers 	by
giving 	any 	force 	or 	effect 	to 	the 	September 	27, 	1979 	resolution
of 	the 	Distr ict 	board 	o f 	trustees 	which 	placed 	District
resource 	teachers 	on 	the 	same 	salary 	schedule 	with 	other
1

2
teachers 	and 	shortened 	the 	workday 	and 	workyear 	of 	District
reso urce 	teachers, 	in 	violation 	of 	Government 	Code 	subsections
3543.5(a), 	(b) 	and 	(c).
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EERA:
1. 	Remove 	the 	October 	2, 	1979 	letter 	of 	reprimand
from 	the 	personnel 	file 	of 	Raymond 	Barney 	and 	destroy 	it 	and
all 	copies 	which 	exist 	in 	District 	personnel 	records.
2. 	Reinstate, 	retroactive 	to 	September 	27, 	1979, 	the
schedule 	and 	make 	whole 	all 	persons 	who 	thereafter 	served 	in
the 	position 	of 	the 	District 	resource 	teacher 	for 	any 	losses 	in
wages 	or 	benefits 	which 	they 	incurred 	as 	a 	result 	of 	the
District's 	unilateral 	abolition 	of 	that 	salary 	schedule;
together 	with 	interest 	paid 	at 	the 	rate 	of 	seven 	percent 	per
annum.
3. 	Immediately 	reinstate 	for 	all 	District 	resource
teachers, 	the 	work 	hours 	and 	workyear 	which 	were 	in 	effect
prior 	to 	September 	27, 	1979.
4. 	Upon 	demand, 	meet 	and 	negotiate 	in 	good 	faith
with 	the 	Delano 	Union 	Elementary 	Teachers 	Association, 	CTA/NEA,
about 	the 	wages, 	hours, 	workyear 	and 	other 	matters 	within 	the
scope 	of 	representation 	for 	District 	resource 	teachers.
5. 	Within 	forty-five 	(45) 	consecutive 	workdays 	from
the 	service 	of 	the 	Decision 	herein 	notify 	the 	Los 	Angeles
regional 	director 	of 	the 	Public 	Employment 	Relations 	Board 	in
2

W
writing 	of 	what 	steps 	the 	employer 	has 	taken 	to 	comply 	with 	the
terms 	of 	this 	Decision. 	All 	reports 	to 	the 	regional 	director
shall 	be 	served 	concurrently 	on 	the 	charging 	party 	herein.
Dated: 	DELANO 	UNION 	ELEMENTARY 	SCHOOL 	DISTRICT
By: Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED 	FOR 	30
WORKING 	DAYS 	FROM 	THE 	DATE 	OF 	POSTING 	AND MUST 	NOT 	BE 	ALTERED,
REDUCED 	IN 	SIZE, 	DEFACED 	OR 	COVERED WITH 	ANY 	OTHER MATERIAL.
3