Los Angeles Unified School District (PERB 0407E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS BOARD
LOS ANGELES CITY AND COUNTY 	SCHOOL
EMPLOYEES UNION, 	LOCAL 99, 	SEIU,
AFL-CIO,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
)
)
) 	Case No. 	LA-CE-1735
PERB Decision 	No. 	407
September 	14, 	1984
)
)
)
)
)
)
Appearances; 	Jeffrey Paule, Attorney 	(Geffner 	& Satzman) 	for
Los Angeles City and County School Employees Union, 	Local 	99,
SEIU, AFL-CIO.
Before Jaeger, 	Morgenstern and Burt, Members.
DECISION
MORGENSTERN, 	Member: 	This case is before 	the Public
Employment Relations Board 	(PERB or Board) 	on the basis of an
appeal 	filed by 	the 	Los Angeles 	City and 	County School
Employees Union, Local 99, 	SEIU, AFL-CIO 	(Union), of the
dismissal of 	its 	unfair 	practice charge 	against 	the 	Los Angeles
Unified School District 	(District). 	For 	the reasons 	set 	forth
below, 	the Board reverses 	the board agent's dismissal and
orders 	that 	the case be remanded and set 	for hearing.
FACTUAL 	SUMMARY
The Union contends 	that 	in 1982, 	the District unilaterally
implemented 	an 	overtime 	distribution policy whereby 	the
employer 	"charged" 	part-time bus drivers 	one hour 	of overtime
(
e

for 	each day of absence and full-time bus drivers 	two hours 	of
overtime for 	each day of absence. 	According to 	the
allegations, 	"charging of overtime hours" 	means that an
employee 	is considered to have worked 	those hours 	for 	purposes
of scheduling overtime when, 	in fact, 	no overtime hours have
actually been worked. 	As 	claimed 	in 	its charge dated
February 	17, 	1983, 	the effect of the unilaterally changed
policy was 	"to deprive employees who have been absent 	from work
an opportunity 	to work overtime hours."
The parties' negotiated 	agreement contains 	a management
rights clause as follows:
Article 	III 	District 	Rights
2.0 	Such 	retained rights 	include, 	but are
not 	limited 	to 	the 	right 	to determine
the 	following matters:
j. 	The dates, 	times, and hours of
operation of District 	facilities,
functions, and activities; work
schedules; 	school calendar; 	the
assignment 	of 	paid duty days 	beyond
the regular 	assigned duty year; 	the
assignment of overtime, 	subject
only to Article 	IX 	(Hours and
Overtime) 	and Article XVI
(Holidays) ;
3.0 	The right 	to 	"determine" 	as used above
in Section 2.0 	includes 	the exclusive
right to establish, change, modify, or
discontinue 	in whole or 	in part,
temporarily or permanently, 	any of 	the
above matters.
In addition, 	Article 	IX 	specifically addresses 	the 	topic of
Hours and Overtime. 	It provides, 	in pertinent part:
2.0 	Overtime: 	To 	the extent practicable,
the 	District 	shall 	use 	reasonable
22

efforts 	to distribute 	overtime work
equitably 	among 	the 	qualified 	employees
of an office, 	operational unit, 	or work
group with consideration given 	to
District 	need 	and 	employee 	availability
in making 	the distribution. 	Upon
reasonable 	notice of not 	less 	than
twelve 	(12) 	hours except in cases of
emergency, 	an employee shall be
required 	to work 	overtime as 	needed.
If 	an employee 	is not available 	for 	an
overtime assignment, 	it shall be
without prejudice 	to consideration of
that employee 	for 	subsequent overtime
assignments. 	A record of overtime
hours 	worked by each 	employee 	in 	an
office, 	operational unit, 	or work group
shall be kept for 	each work year 	and
shall 	be made 	readily available 	to
employees 	and/or 	the 	Union.
DISCUSSION
The question 	presented by 	the 	instant 	appeal 	is 	whether 	the
contentions 	raised 	in the Union's 	charge 	support 	a prima 	facie
showing that the District violated subsections 3543.5(a), 	(b)
or 	(c) 	of the Educational Employment Relations Act 	(EERA). l	1
1 The 	EERA 	is codified 	at Government Code 	section 	3540 	et
seq. 	All 	references herein are 	to 	the Government Code 	unless
otherwise 	indicated.
Section 3543.5 	provides, 	in pertinent part:
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
33

Contrary 	to the PERB agent's determination, 	we are unable 	to
conclude 	that the parties' 	contract either 	expressly or
impliedly authorizes 	the District's 	unilateral 	adoption 	of 	the
overtime distribution policy noted above. 	In our 	view,
assuming 	all 	factual assertions 	to be 	true 	(San Juan Unified
School District 	(3/10/77) 	EERB Decision No. 	1 2 ) , 2 the PERB
agent's dismissal 	letter 	goes 	beyond 	the prima 	facie case
determination and, 	indeed, 	seems to dismiss on the basis of his
resolution of 	the 	charge.
To 	allege an 	impermissible unilateral change, 	a charging
party is 	required to allege 	that 	the employer, 	without
affording 	the 	exclusive 	representative 	adequate 	notice 	and 	an
opportunity to negotiate, 	changed 	a matter 	within 	the 	scope 	of
representation 	so as 	to alter 	the past practice. 	Grant Joint
Union High School District 	(2/26/82) 	PERB Decision No. 	196. 	In
this case, 	the 	issue before us 	is whether 	it can be concluded
that, 	as a matter of law, 	the charge fails to allege sufficient
facts 	to demonstrate 	that 	the new overtime distribution policy
changed 	the 	status quo.
guaranteed 	to them by 	this chapter.
(c) 	Refuse or fail to meet and negotiate 	in
good 	faith with an 	exclusive 	representative,
2 Prior 	to January 1, 	1978, 	PERB was known as the
Educational Employment Relations Board 	(EERB).
44

To 	the extent that the parties' 	negotiated agreement
specifically addresses the subject of overtime, 	the 	alleged
change 	should 	first be measured 	against 	that provision. 	As
noted, 	supra, 	that provision permits 	the District to 	"use
reasonable 	efforts 	to distribute 	overtime work 	equitably 	among
the qualified employees 	. 	. 	. 	." 	Unlike the PERB agent, we are
unable 	to conclude 	that this provision permits 	or prohibits 	the
policy for which 	the District opted, 	or 	that 	the Union waived
its 	right 	to negotiate over 	the distribution of overtime.
While 	there 	are 	instances where 	a contract provision 	is 	so
clear 	and 	unambiguous 	that 	it 	is 	unnecessary 	to go beyond 	that
language 	to ascertain 	its meaning 	and 	thus 	to dismiss 	the
charge 	as 	a matter 	of law 	(Marysville Joint Unified 	School
District 	(5/27/83) 	PERB Decision No. 	314), 	this is not such a
case. 	The contract provision 	is replete with ambiguous phrases
such as 	"to the extent practicable," 	"reasonable efforts,"
"distribute 	equitably," 	"with consideration given 	to District
need." 	The 	PERB agent's determination 	that 	the 	overtime policy
is 	expressly permitted by the contract 	skips over 	the
ambiguities raised by Article IX, 	section 2.0. 	Moreover, 	he
completely 	forecloses 	the possibility 	that 	the parties'
bargaining history or past practice might 	shed 	some 	light on
the meaning of the language. 	See, 	for example, Victor Valley
Joint Union High School District 	(12/31/81) 	PERB Decision
No. 	192 	where 	the Board 	reversed a dismissal citing 	the
charging party's 	relevant offer 	of 	proof as 	to 	the method of
55

computing wages where 	the contract was 	silent; 	Colusa Unified
School District 	(3/21/83) 	PERB Decision No. 	296 where the Board
upheld 	the 	administrative 	law judge's 	interpretation 	of 	the
contract 	based on a 	review of numerous 	contract 	terms and
bargaining history; 	and Anaheim City School District 	(12/14/83)
PERB Decision No. 	364 where 	the Board 	specifically noted 	the
appropriateness 	of 	reviewing past practice 	to 	ascertain 	the
existing policy where 	the contractual 	language 	is ambiguous.
PERB 	precedent 	clearly 	reveals 	that 	an 	evidentiary proceeding
is 	the appropriate 	vehicle by which 	to assess and weigh 	varying
opinions of contract interpretation. 	Here, 	however, 	the PERB
agent 	shortcuts 	that process 	and 	interprets 	the contract 	for
himself without benefit of 	a 	fully 	evidentiary exploration.
ORDER
Based on 	the 	foregoing, 	the PERB agent's dismissal of 	this
charge 	is reversed 	and the case 	is REMANDED to the general
counsel 	for 	proceedings consistent with 	this Decision.
Members Jaeger 	and Burt 	joined 	in this Decision.
66