Delano Union Elementary School District (PERB 0213EA)

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.	Respondent.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DELANO UNION ELEMENTARY TEACHERS
ASSOCIATION, CTA/NEA,
Charging Party, 	Case No. LA-CE-1062
Request for Reconsideration	v .
PERB Decision No. 213
DELANO UNION ELEMENTARY SCHOOL
DISTRICT, 	PERB Decision No. 213a
October 15, 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 Morgenstern, Members.
REQUEST FOR RECONSIDERATION
JAEGER, Member: Following the issuance of the Public
Employment Relations Board's (PERB or Board) decision in Delano
Union Elementary School District (4/30/82) PERB Decision
No. 213, the Board received a request for reconsideration from
the Delano Union Elementary School District (District) . That
request was made pursuant to California Administrative Code,
title 8, section 32410(a) which provides:
Any party to a decision of the Board itself
may, because of extraordinary circumstances,
file a request to reconsider the decision
with the Board itself within 10 days
following the date of service of the
decision. The request for reconsideration
shall be filed with the Executive Assistant
to the Board and shall state with
specificity the grounds claimed and, where
applicable, shall specify the page of the
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Case
	No. 	LA-CE-1062
Request
	for
	Reconsideration
PERB
	Decision
	No. 	213
PERE
	Decision
	Ho.
	213a
October 	15,
	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
	Morgenstern,
	Members.
REQUEST
	FOR
	RECONSIDERATION
JAEGER, 	Member:
	Following 	the 	issuance
	of 	the 	Public
Employment
	Relations 	Board's
	(PERB
	or
	Board)
	decision 	in
	Delano
Union
	Elementary 	School
	District
	(4/30/82)
	PERB
	Decision
No.
	213,
	the
	Board
	received
	a
	request 	for 	reconsideration
	from
the	
Delano 	Union
	Elementary 	School
	District 	(District).
	That
request
	was 	made
	pursuant 	to 	California Administrative
	Code,
title
	8, 	section
	32410(a)	
which	
provides:
~ny
	party 	to
	a	
decision 	of
	the 	Board
	itself
may,
	because 	of 	extraordinary 	circumstances,
file
	a
	request 	to 	reconsider 	the	
decisionwith 	the 	Board
	itself
	within
	10 	days
following 	the 	date 	of 	service 	of 	the
decision.	
The	
request 	for 	reconsideration
shall
	be
	filed
	with 	the 	Executive 	Assistant
to 	the 	Board 	and
	shall 	state
	with
specificity 	the 	grounds 	claimed 	and, 	where
applicable, 	shall 	specify 	the 	page 	of 	the

record relied on. Service and proof of
service of the request pursuant to
Section 31240 are required.
In Bassett Unified School District (3/23/79) PERB Order
No. Ad-62, this provision was interpreted to permit
reconsideration when the Board finds that substantial errors of
law or fact are demonstrated.
DECISION
The request for reconsideration is granted. This
reconsideration is based on the Board's view that a more
appropriate remedy is required. It is not based on the
District's assertion of a purported inconsistency concerning
determining the representation status of certain employees. I
We found that the unfair practice committed by the District
was its unilateral change in the established pay, hours and
term length of District resource teachers. This unilateral
change occurred the day after PERB's Los Angeles regional
director issued a unit modification certificate bringing these
employees into the unit. However, the District did
subsequently agree to negotiate these issues and the Board
The Board found that the hearing officer's conclusion that
the subject employee was not management was supported by the
District's own admission of nonmanagerial status. This admission
appeared in its agreement with the Delano Union Elementary Teachers
Association, CTA/NEA, as well. The Board also found this employee
was not managerial because the District failed to meet its burden
of proving managerial status. Thus, while the agreement itself is
not binding on the Board, it is evidence of the District's own
understanding of the employee's status.
2
record
	relied
	on.
	Service
	and
	proof 	of
service
	of 	the
	request 	pursuant 	to
Section
	31240
	are 	required.
In
	Bassett
	Unified
	School
	District
	(3/23/79)
	PERB
	Order
No.
	Ad-62,
	this
	provision
	was
	interpreted
	to
	permit
reconsideration
	when
	the
	Board
	finds
	that 	substantial 	errors
	of
law
	or
	fact
	are
	demonstrated.
DECISION
The
	request 	for
	reconsideration
	is
	granted.
	This
reconsideration
	is
	based
	on
	the
	Board's
	view
	that
	a
	more
appropriate
	remedy
	is
	required.
	It
	is
	not
	based
	on
	the
District's
	assertion
	of
	a
	purported 	inconsistency
	concerning
determining 	the
	representation
	status
	of
	certain
	employees.l
We
	found
	that
	the
	unfair
	practice
	committed
	by
	the
	District
was
	its
	unilateral
	change
	in 	the
	established
	pay, 	hours
	and
term
	length
	of
	District
	resource
	teachers.
	This
	unilateral
change
	occurred 	the
	day
	after
	PERB's 	Los
	Angeles
	regional
director
	issued
	a
	unit 	modification
	certificate
	bringing 	these
employees
	into 	the
	unit.
	However,
	the
	District
	did
subsequently 	agree 	to 	negotiate 	these 	issues
	and
	the
	Board
1
The
	Board 	found
	that
	the 	hearing
	officer's
	conclusion
	that
the 	subject
	employee
	was
	not
	management was
	supported
	by
	the
District's
	own
	admission 	of
	nonmanagerial
	status.
	This 	admissionappeared
	in
	its
	agreement 	with 	the
	Delano 	Union
	Elementary 	Teachers
Association,
	CTA/NEA,
	as 	well.
	The
	Board
	also
	found
	this
	employeewas
	not 	managerial 	because 	the
	District 	failed 	to
	meet
	its
	burden
of 	proving managerial
	status.
	Thus, 	while 	the
	agreement
	itself 	is
not 	binding
	on
	the 	Board,
	it
	is
	evidence 	of 	the 	District's
	own
understanding 	of 	the 	employee's
	status.
2

takes official notice of the fact that the parties reached
agreement concerning these matters. The agreement is embodied
in the 1980-81 collective bargaining contract.
On reconsideration, the Board agrees that, based on the
facts of this case, it would be punitive to require the
District to pay the affected employees for hours not worked or
to reinstate longer working hours absent evidence that those
extra hours are required. Therefore, the Board amends its
Order of April 30, 1982, to require the employer to compensate
the District resource teachers for the period commencing on
September 27, 1979, and ending July 1, 1980, the effective date
of the negotiated agreement, for extra hours worked, if any, at
the same rate of pay they received before September 27, 1979,
for such hours.
ORDER
The Order in PERB Decision No. 213 (4/30/82) is AMENDED to
read as follows: Paragraph B., subsection 2, 3, and 4 are
replaced with the following:
2. 	Compensate the District resource teachers for the
period commencing on September 27, 1979, and ending
July 1, 1980, the effective date of the negotiated
agreement, for extra hours worked, if any, at the same
rate of pay they received before September 27, 1979,
for such hours.
W
takes
	official
	notice
	of
	the
	fact 	that
	the
	parties
	reached
agreement
	concerning
	these
	matters.
	The
	agreement
	is
	embodied
in 	the
	1980-81
	collective
	bargaining
	contract.
On
	reconsideration,
	the
	Board
	agrees
	that,
	based
	on
	the
facts
	of
	this
	case,
	it
	would
	be
	punitive 	to 	require
	the
District
	to
	pay
	the
	affected
	employees
	for
	hours
	not
	worked
	or
to
	reinstate
	longer
	working
	hours
	absent 	evidence
	that
	those
extra
	hours
	are
	required.
	Therefore, 	the
	Board
	amends
	its
Order
	of
	April
	30, 	1982,
	to 	require
	the
	employer
	to
	compensate
the
	District
	resource 	teachers
	for 	the 	period
	commencing
	on
September 	27,
	1979,
	and
	ending
	July 	1,
	1980,
	the
	effective
	date
of 	the
	negotiated
	agreement,
	for
	extra
	hours
	worked,
	if
	any,
	at
the
	same
	rate
	of
	pay
	they 	received 	before
	September 	27, 	1979,
for
	such
	hours.
ORDER
The
	Order
	in
	PERB
	Decision
	No. 	213
	(4/30/82)
	is
AMENDED
	to
read 	as 	follows: 	Paragraph
	B., 	subsection
	2,
	3,	
and 	4
	are
replaced
	with
	the 	following:
2. 	Compensate
	the
	District
	resource 	teachers 	for 	the
period
	commencing
	on 	September 	27, 	1979,	
and	
ending
July 	1,
	1980,
	the
	effective
	date 	of 	the 	negotiated
agreement, 	for 	extra
	hours 	worked,
	if
	any,
	at
	the
	same
rate 	of
	pay 	they 	received 	before
	September 	27, 	1979,
for 	such 	hours.
3

The District will be required to post the amended Notice to
Employees pursuant to the terms prescribed in the original
Order .
Chairperson Gluck and Member Morgenstern concurred.
The
	District
	will
	be
	required 	to 	post
	the
	amended
	Notice
	to
Employees
	pursuant
	to
	the
	terms
	prescribed 	in
	the
	original
Order.
Chairperson
	Gluck 	and
	Member
	Morgenstern
	concurred.
4

APPENDIX A
NOTICE TO ALL 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. 5 (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:
WE WILL CEASE AND DESIST FROM:
. 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. Unilaterally affecting the wages, hours and length of the
working year of District resource teachers by giving any force
or effect to the September 17, 1979, resolution of the District
board of trustees which placed District resource teachers on
the same salary schedule with other teachers and shortened the
workday and workyear of the District resource teachers, in
violation of Government Code subsections 3543.5 (a) , (b) ,
and (c) .
WE WILL TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
. 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 . 	Compensate the District resource teachers for the period
commencing on September 27, 1979, and ending July 1, 1980, the
effective date of the negotiated agreement for extra hours
worked, if any, at the same rate of pay they received before
September 27, 1979, for such hours.
APPENDIX
	A 
NOTICE
	TO
	ALL 	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:
WE
	WILL	
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.S{a)
	and
	(b).
2.
	Unilaterally 	affecting
	the
	wages,
	hours
	and
	length 	of 	the
working
	year 	of
	District
	resource 	teachers
	by
	giving
	any
	force
or
	effect
	to
	the
	September
	17, 	1979,
	resolution
	of 	the
	District
board	
of	
trustees
	which
	placed
	District
	resource 	teachers
	on
the	
same
	salary
	schedule 	with
	other 	teachers	
and	
shortened 	the
workday 	and
	workyear
	of
	the
	District
	resource
	teachers, 	in
violation
	of
	Government 	Code
	subsections 	3543.S(a), 	(b),
and
	(c}.
WE
	WILL
	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.
	Compensate
	the
	District
	resource 	teachers 	for 	the 	period
commencing 	on 	September	
27, 	1979,	
and
	ending 	July	
1,
	1980, 	the
effective	
date 	of 	the 	negotiated 	agreement 	for	
extra	
hours
worked,
	if	
any,
	at 	the	
same
	rate 	of
	pay 	they 	received 	before
September	
27, 	1979, 	for 	such 	hours.
1

3. 	Within thirty (30) consecutive workdays from the service of
the 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.
Dated
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,
2
3.
	Within
	thirty
	(30)
	consecutive
	workdays
	from
	the
	service
	of
the
	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.
Dated	
DELANO
	UNION 	ELEMENTARY SCHOOL
	DISTRICT	DELANO UNION ELEMENTARY SCHOOL DISTRICT
By:
Authorized
	Representative
TH
	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.	IN
	SIZE,
	OR 	WITH
	ANY	
MATERIAL.
2