Gonzales Union High School District (PERB 0410E)

STATE OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GONZALES UNION HIGH 	SCHOOL DISTRICT
TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
GONZALES UNION HIGH 	SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-633
PERB Decision No. 	410
September 28, 	1984
Appearances; 	Ramon E. 	Romero, 	Attorney for Gonzales Union
High School 	District 	Teachers Association, 	CTA/NEA;
Barbara S. 	de Oddone, 	Attorney 	(Littler, 	Mendelson, 	Fastiff 	&
Tichy) 	for 	Gonzales Union High School 	District.
Before Tovar, 	Jaeger and Burt, 	Members.
DECISION
BURT, 	Member: 	This case 	is before the Public Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed by the
Gonzales 	Union High 	School 	District 	(District) 	to the proposed
decision of 	the administrative 	law 	judge 	(ALJ) 	finding 	that 	the
District violated subsections 	3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment 	Relations 	Act 	(EERA)1 by unilaterally
changing 	the 	school 	calendar 	without providing 	notice 	and 	an
opportunity to 	negotiate 	to 	the Gonzales Union 	High School
1 The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Government 	Code 	section 	3540 et 	seq. 	All 	references are 	to 	the
Government 	Code 	unless 	otherwise 	noted.
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Teachers Association, 	CTA/NEA, 	(GUHSDTA or Association) 	and by
unlawfully removing a Pepsi machine 	in the 	teachers' 	lounge 	in
retaliation 	for 	the Association's exercise of 	its 	rights 	under
EERA. 	No exceptions 	were 	filed 	to the ALJ's 	finding 	that 	the
District 	had 	fulfilled 	its 	obligation 	to 	consult 	about 	the
class 	schedule. 	Based on the discussion below, 	we 	affirm 	in
part, 	and reject 	in part, 	the 	findings and conclusions of 	the
ALJ.
FACTS
After 	a review of 	the 	record, 	we 	find that 	the ALJ's
findings 	of 	fact 	are 	free 	from prejudicial 	error, 	and we 	adopt
them as 	our 	own. 	A summary of 	those 	facts 	follows.
The 	Association 	is 	the 	exclusive 	representative 	of 	the
District's 	certificated 	employees, 	and has been party to
collective bargaining agreements 	with the 	District 	since 	1977.
Negotiations 	for the 	1981-82 agreement began in May 1980, 	and
concluded 	when 	agreement 	on 	the 	contract 	for 	1981-82 was
reached on September 	8, 	1981.
A. 	Change 	in Class 	Schedule
The 	Association alleges 	that 	the 	District's 	change 	in the
beginning 	and 	ending 	times 	of 	the 	teacher 	workday 	implemented
on December 	14, 	1981, 	was a unilateral change 	in violation of
EERA.
The parties' 	agreement 	contains Article V, 	entitled 	"Hours
of Employment", 	which defines 	the 	length of 	the workday as
N	
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seven and 	three-fourths hours per 	day 	including 	lunch. 	The
contract does not 	include a 	class 	schedule.
Paragraph G of 	Article 	V of 	the 	contract 	states:
The 	class 	schedule 	will be 	established 	after
consultation with 	the 	Exclusive
Representative. 	The 	regular 	schedule 	shall
include 	six 	(6) 	periods of 	instruction of
fifty 	(50) 	minutes per period, 	and a total
amount 	of 	instructional 	time 	of 	no more 	than
315 minutes.
The 	contract 	also 	includes 	a 	standard 	zipper 	clause.
From September 	1981 until 	December 	14, 	1981, 	classes were held
from 8:25 	a.m. 	to 	3:00 p.m. 	Teachers 	were 	required 	to 	report
to work 	30 minutes before 	classes began, 	at 	7:55, 	and were
required 	to 	remain 	for 	seven and 	three-fourths hours, 	until
3:40.
On November 5, 	1981, 	District 	Superintendent and High
School 	Principal 	Randall 	Olson distributed 	to 	department heads
at 	the high school a 	"suggested 	class 	schedule, 	beginning 	at
8:20 	and 	ending at 	2:45, 	with a 	15-minute 	reading period 	to be
eliminated." 	Two 	other 	schedules 	were 	distributed 	at 	the
meeting, 	marked 	"Homeroom" 	and 	"Activity Schedule", 	which
provided 	the 	same beginning 	and 	ending 	times 	as 	the 	"suggested"
class 	schedule.
A few days 	later, 	Association 	President 	Jack 	Havens heard
about 	the proposed 	changes 	and 	asked 	Olson 	about 	them. 	Olson
gave 	Haven 	the 	three 	schedules 	with 	slight 	alterations. 	These
were 	noted: 	"For your 	information and comment." 	After
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consulting with 	the 	Association's 	executive board, 	Havens
notified 	Olson 	that 	the 	Association believed 	the 	new 	schedules
to be 	negotiable. 	Olson 	replied 	that 	they 	were 	a 	"consult
item." 	Olson 	and 	Havens met 	and 	exchanged 	memos, 	disputing 	the
meaning of 	the 	contract 	and 	the 	District's 	negotiating
obligations. 	On December 	8, 	the District 	announced a new
"regular 	schedule", 	the 	same one given 	to Havens 	in
mid-November.
B. 	The Unilateral 	Change 	in the 	1982-83 calendar
Both 	Havens 	and 	District 	Negotiator 	Currier 	testified 	that
the 	1981-82 	calendar was 	determined 	during 	the negotiations
which 	culminated 	in 	the 	collective bargaining 	agreement
covering 	those years. 	Language 	in the contract defined 	the
school year 	as 	179 days. 	Attached 	to the 	contract 	was 	the
calendar 	for 	1981-82, 	showing a total of 	179 teacher workdays,
including 	175 	teaching days 	and 	four 	teacher 	workdays. 	(In
practice, 	the teachers only worked 	178 days during 	1981-82,
since Martin Luther 	King 	Day 	was 	added by 	the 	Legislature 	as 	a
holiday, 	and 	the District 	revised 	its 	calendar 	accordingly.)
It 	also 	included 	"mandatory holidays", 	including 	the Monday
after 	Easter.
The 	1981-82 bargaining agreement expired on June 	29, 	1982.
However, 	it 	contained a 	clause providing 	that 	if neither party
gave 	the other 	notice of a desire 	to 	terminate 	the 	agreement
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and negotiate a new one on or before 	February 1, 	1982, 	"the
Agreement 	shall be 	extended 	for 	at 	least 	another year."
Several 	notes 	from Havens 	to Olson 	in November 	and
December 	1981 	referred 	to 	the possibility of new negotiations
for 	a 	successor 	contract. 	From 	December 	1981 	through March of
1982, 	there were 	a 	series of 	increasingly acrimonious memos
between 	District 	representatives 	and 	those 	of 	the 	Association
concerning 	the bell 	schedule, 	possible 	raises 	for 	some
teachers, 	what 	to do about Martin Luther King Day, 	use of 	the
District 	equipment, 	the Pepsi machine, 	and 	the new calendar.
In the middle of 	this exchange, 	on February 9, 	Currier wrote 	to
Havens 	stating 	that 	notice had 	not been given by either party
of 	an 	intent 	to 	terminate 	the 	old 	contract 	and 	renegotiate 	a
new one 	for 	the next year, 	and 	concluding 	that 	the 	1981-82
contract 	was 	therefore 	extended 	for 	another year. 	The 	letter
did however 	express 	the 	District's 	wish 	that 	Currier 	meet 	with
representatives 	of 	GUHSDTA 	"to 	discuss 	employer/employee
relations 	for 	1982-83." 	The Association 	took 	the position 	that
the 	entire 	contract 	should be 	renegotiated.
As was 	the practice 	in past years, 	the District adopted a
tentative calendar on March 	22, 	1982. 	This calendar differed
from the 	1981-82 calendar 	in two ways. 	First, 	the Monday after
Easter 	was 	shown as 	a 	regular 	class 	and workday 	rather 	than a
holiday. 	Second, 	the 	last 	week 	of 	January was changed 	from 	two
full 	teaching days 	and 	three 	"minimum days" 	to one 	regular
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teaching day, 	three minimum days, 	and one 	teacher workday. 	The
two 	calendars began and 	ended 	the 	school year 	at 	the 	same 	time.
On March 	23, 	Jack Steadman, 	chief negotiator 	for 	the
Association, 	sent a note 	to Olson 	saying,
It has come 	to my attention that 	the
proposed 	school 	calendar you 	presented 	to
the 	Board of 	Trustees 	last 	night 	eliminated
the day after Easter as a holiday. 	This
represents 	a major 	change 	in 	the present
contract. 	The 	school calendar 	is 	within
scope 	of bargaining 	as 	defined 	by 	the 	Rodda
Act. 	If you wish to 	make 	changes 	in the
calendar, 	you must present your proposal
during contract 	negotiations. 	We plan to
present 	our 	contract proposals 	for 	the
1982-83 	school year 	at 	the April 	Board of
Trustees meeting.
On March 	26, 	Currier 	(unaware 	of 	Steadman's 	letter to
Olson) 	wrote 	to 	Steadman, 	reiterating 	the District's position
that, 	since neither party had 	chosen to terminate 	the contact,
it 	was extended 	for 	another year. 	The 	letter 	continued:
A second purpose of 	this 	letter 	is 	to 	again
extend 	an 	invitation 	to the 	Association that
we 	meet 	to 	discuss 	employer-employee
relations 	for 	1982-83. 	These discussions
shall not be negotiations, 	but they may
prove 	mutually 	rewarding. 	I 	sincerely hope
that you 	will be 	able 	to 	attend 	the
suggested 	meeting.
On April 14, 	1982, 	there was a meeting attended by Olson,
Currier, 	and three members of 	the Association's negotiating
team, 	lead by Steadman. 	Steadman and 	Currier 	agree 	that 	the
calendar 	was discussed, 	but 	their versions of 	the meeting
differ otherwise. 	Steadman testified:
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. 	. 	. 	From Mr. 	Currier's point of view, he
wanted 	to 	discuss 	employer-employee
relations. 	From our point of view, 	we
wanted 	to 	clarify the 	status 	of
negotiations, 	would there be negotiations
for the contract, 	this contract here,
basically 1982-83. 	At this point, 	we
discussed 	what 	we 	would 	either 	negotiate 	or
discuss 	informally. 	Mr. 	Currier mentioned
that 	a 	District 	concern was 	increasing
salaries 	for 	teachers 	to keep morale high.
He was also 	interested 	in 	the article
concerned 	with health 	and 	welfare benefits.
From our 	side, 	we 	didn't particular 	itemize
(sic), 	our, 	the 	issues that we wanted to
bargain, 	but we 	indicated 	that 	they were 	not
going 	to be significant. 	I made 	reference
to 	the 	fact 	that 	the board had 	adopted 	a 	new
school 	calendar 	and 	suggested 	that 	that
would 	certainly be 	an 	item 	that 	we 	would
want 	to negotiate. 	And Mr. 	Currier
indicated 	that 	the District didn't have 	to
negotiate 	that.
Currier 	testified 	that he 	raised 	a 	few matters 	of 	concern
that 	the parties 	could 	resolve 	informally, 	including 	the
calendar, 	but 	the Association expressed no 	interest 	in the
arrangement. 	He 	denied 	saying 	that 	the 	District 	was 	not
required 	to negotiate 	the calendar, 	and 	Olson 	supported
Currier's version of 	the meeting.
There 	was 	another meeting 	of 	the 	same 	five 	individuals 	on
September 	10, 	characterized by the 	District 	as a meeting 	to
discuss 	settlement 	of the unfair practice 	charges. 	Steadman
testified:
Mr. 	Currier 	indicated 	that 	since 	there 	would
be no negotiations 	for the year that 	. 	. 	.
the 	District 	adopted 	a 	calendar which 	was 	as
close 	to the 	status 	quo as possible.
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He did 	not 	assert 	that 	the 	Association had 	made 	a 	demand 	to
negotiate 	the 	calendar 	at 	that 	time.
Olson 	and 	Currier 	testified 	neither 	indicated 	at 	that 	time
that 	the 	calendar was 	final, 	nor 	did either refuse 	to negotiate
the 	calendar 	for 	1982-83.
Olson 	also 	testified 	that 	Currier had 	advised him 	in 	March
to be 	sure that 	the calendar 	adopted was 	tentative, 	since 	it
was 	subject 	to negotiation. 	Olson 	said 	that 	as 	of 	the time of
the hearing 	the 	tentative 	calendar had 	not been 	changed, 	nor
did he know 	if 	it would be, 	but 	that 	the Board was willing 	to
negotiate about 	it.
C. 	Removal of the 	Pepsi 	Machine 	from the Teachers' 	Lounge
For 	several years, 	the Association operated a Pepsi-Cola
vending machine 	in the teachers' 	lounge at 	the high school.
The profits 	from the machine 	($500-$600 	in 	1981-82) 	were used
for 	Association activities, 	including 	the awarding 	of
Association 	scholarships.
The teachers' 	lounge was used 	for 	a variety of purposes,
not 	including Association meetings. 	Theoretically, 	students
were 	not 	allowed 	in the 	lounge, 	although 	they were 	sometimes
found 	there.
On March 9, 	1982, 	Olson told Havens 	that the District would
replace 	the 	Pepsi 	machine with a 	"machine 	from 	food 	service."
Sometime 	in April, 	the Pepsi machine was 	replaced by a
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Coca-Cola machine, 	leased along 	with other machines by 	the
District 	and 	serviced by the 	food 	service 	department.
During 	the 	second week of April, 	Olson called 	in
John Mahoney, 	new president of the Association, 	to discuss
general 	District problems. 	Mahoney 	testified 	that 	it 	was an
opportunity for both 	to 	air 	differences, 	and 	to 	discuss 	the
District's 	and Association's views. 	Mahoney continued:
. 	. 	. 	I think the big problem would be
Mr. 	Olson expressed 	frustration 	that 	the
number 	of 	unfair 	labor 	practice 	charges 	that
the 	teachers had 	filed 	and he 	also 	expressed
frustration at 	the manner 	in which
negotiations had been 	conducted 	during 	the
previous year and 	I 	said 	that 	I was equally
frustrated, 	that 	we 	were 	very unhappy with
the way negotiations had gone 	. 	. 	.
Mahoney 	characterized 	the 	meeting 	as 	an 	informal 	exchange
of 	ideas. 	He 	testified 	that he believed 	Olson was 	trying 	to
establish 	a better 	relationship and 	that 	the atmosphere 	was 	not
at 	all hostile or 	threatening.
During 	that 	meeting, 	Olson 	and 	Mahoney also 	discussed 	the
Pepsi machine. 	Mahoney asked 	for 	reasons 	why 	the 	machine had
been 	removed, 	and 	Olson 	said 	it 	was 	the combination of
several. 	Olson 	noted that 	the 	teachers 	were 	supposed 	to empty
the 	coin box but 	frequently did not, 	so 	that other District
employees had 	to do 	it. 	He 	also commented 	that 	the 	machine
frequently 	jammed 	and 	District 	secretaries had 	to 	see 	to 	the
malfunction. 	Olson also 	noted 	that 	Currier had 	suggested 	that
the 	operation 	of 	the 	machine by the Association 	might 	be
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illegal under PERB's Healdsburg2 decision. 	Finally, 	Olson
said 	the 	change 	was partially due 	to 	the 	availability of a 	new
Coke 	machine 	that 	would 	serve 	nutritional 	drinks 	as 	required by
State 	law.
Mahoney, 	joined by Sharon Heller, 	the Association
treasurer, 	had a 	further 	conversation with Olson 	later 	in
April. 	Olson 	repeated 	the 	three-part 	rationale 	for 	removing
the 	machine 	— 	nuisance, 	possible 	illegality, 	and 	convenience
of 	the new machine. 	However, 	Mahoney testified 	that he also
added 	another 	reason:
. 	. 	. 	The additional reason he had then was,
he 	said 	something about well, 	also, 	he 	says,
of 	course 	the general 	dissatisfaction of 	the
board, 	the general displeasure 	that 	the
board had 	toward 	the 	Teachers'
Association. . . .
Mahoney 	testified 	that he 	expressed his 	surprise 	at 	this
new 	reason, 	and 	Olson 	indicated 	that he 	thought he had
mentioned 	it 	earlier. 	Mahoney agreed 	that general
dissatisfaction had been discussed at 	the 	earlier meeting, 	but
that 	that dissatisfaction was 	never 	related 	to 	the removal 	of
the 	Pepsi machine. 	Elsewhere, 	Mahoney 	testified that 	Olson
said he 	thought he had 	made 	that 	clear. 	According 	to Mahoney,
Olson 	said 	that 	the 	decision 	to 	remove 	the 	machine had been
made by the board of 	trustees, 	that 	it had been talked about 	in
2Healdsburg Union High 	School 	District 	(6/19/80) 	PERB
Decision No. 	132; 	subsequently annulled by Healdsburg Union
High School District, 	et al. 	(1/5/84) 	PERB Decision No. 	375,
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executive 	session, 	"and 	that 	the board had gone along with the
idea or 	authorized 	it 	in 	some way."
The Association 	representatives 	went 	on 	to 	request 	that 	the
machine be 	reconnected 	and 	outlined 	a 	plan 	for 	reducing 	the
nuisance 	factor. 	Olson declined 	to do 	so. 	It was his
testimony 	that he 	mentioned 	the board's 	dissatisfaction with
the 	relationship 	with 	the 	Association 	during 	this 	conversation
rather 	than 	in the 	initial discussion of 	the reasons 	why 	the
machine was disconnected, 	he 	felt 	that 	it 	would be awkward 	to
recommend 	that 	a potentially 	illegal 	machine be 	reconnected,
especially 	in 	light 	of 	the 	Board's 	general 	dissatisfaction with
the relationship between 	it and GUHSDTA. 	However, 	on
questioning by 	the 	ALJ, 	Olson 	testified 	that 	the machine would
have been 	discontinued 	regardless 	of 	the 	labor 	relations
atmosphere because of 	the practical 	reasons 	for doing 	so.
During 	the 	last 	week 	of May, 	Mahoney again 	met 	with Olson
to 	request 	formally 	that 	the 	District 	reconnect 	the 	Pepsi
machine. 	Mahoney described 	steps 	to be 	taken 	to 	eliminate 	the
nuisance, 	and also emphasized the Association's 	interest 	in
having 	the 	machine 	reconnected. 	Olson 	did not 	testify about
this meeting, 	but 	the machine was 	not 	reconnected.
Betty Bettencourt, 	Director of 	Food 	Services 	for 	the
District, 	testified that 	in early 1982, 	knowing 	the 	Pepsi
machine was 	a nuisance, 	she had 	approached 	Olson 	regarding 	a
substitute 	machine. 	She had discovered 	that 	Coca-Cola 	made 	a
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machine Which could dispense 	juices until 	all 	lunches 	were
served and 	then, 	after a key was 	turned, 	dispense 	carbonated
beverages. 	She 	also 	testified about her 	experience with 	the
vending machine 	in the teachers' 	lounge, 	including the fact
that at 	one 	time 	a 	student 	working 	for 	food 	services 	was
responsible 	for 	emptying 	the 	coin box 	and 	depositing 	the 	money
to the Association's 	account 	in 	Salinas.
In early March, 	Olson decided 	to obtain the Coca-Cola
machines, 	and 	authorized Bettencourt 	to sign a 	lease 	for
several, 	which 	she did 	in 	late March. 	The District obtained
several machines, 	including one 	for 	the cafeteria, 	one 	for the
snack bar, 	and one 	for the teachers' 	lounge. 	Bettencourt
arranged 	for 	the 	Pepsi-Cola 	Company 	to 	remove 	two machines 	from
the 	school: 	one 	from the 	lounge, 	and one 	from the 	"bus barn",
which 	was used 	almost 	exclusively by employees 	who drove 	and
maintained 	the District's vehicles. 	The 	"bus barn" 	machine was
not, 	however, 	removed. 	Bettencourt 	testified that 	she was not
at 	school on 	the day 	the 	company came 	to pick 	up 	the machines,
and 	the 	District 	employee 	who heads 	the 	transportation
department dissuaded 	or 	prevented 	the 	Pepsi 	employee 	from
removing 	the machine 	in 	the bus barn.
Currier 	testified 	that he had 	first 	become 	aware 	that 	the
Association was 	operating 	the machine 	in 	the 	teachers' 	lounge
in August 	or 	September 	1981. 	He had heard 	rumors 	to 	that
effect 	"but 	I 	thought 	it 	was a 	joke." 	At 	that 	time Currier 	and
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Olson were 	talking while 	they purchased 	drinks 	from 	the 	machine
and Olson 	confirmed 	that 	the 	Association 	did 	indeed 	operate 	the
machine 	for 	its 	own benefit. 	Currier 	told Olson that 	there
might 	be 	a 	legal 	problem with 	the 	District 	allowing 	vending
machine profits 	to go to the Association, 	and that he would
check 	it out.
Later 	in the 	fall, 	Currier 	responded to Olson about 	the
machine, 	and sent Olson a 	copy of 	PERB's Healdsburg decision.
Currier 	testified 	that 	he 	was 	particularly concerned 	because he
feared 	that 	the 	District's 	grant 	of 	"almost 	carte 	blanche
release 	time 	for 	negotiations", 	in conjunction with the
operation of 	the machine 	for 	the Association's benefit, 	might
give 	rise 	to a charge of 	unlawful 	assistance 	if 	there was 	a
decertification move, 	which Olson had told him was 	possible.
Currier 	testified 	further 	that he 	left 	the 	choice 	of 	what 	to do
about 	the machine 	up to Olson. 	Olson said that he 	did not
replace 	the machine at 	the 	time, 	because he wanted to 	let
things 	calm 	down 	after 	protracted 	negotiations, 	and he had 	no
alternative 	at hand.
The 	Association had been 	active 	in the 	District 	in the
past, 	filing 	several 	unfair 	practice 	charges 	and negotiating
the 	1981-82 	contract 	through 	impasse and mediation. 	As noted
above, 	there were 	several 	issues 	unresolved between the parties
during the 	period 	the 	change 	in machines 	was 	contemplated,
13

including 	the 	class 	schedule, 	the matter of 	the 	1982-83
calendar 	and 	reopening 	negotiations 	for 	that year.
DISCUSSION
Substitution of 	ALJ
The District 	excepts 	to 	the assignment of 	the case 	to ALJ
Fassler 	for 	decision after 	a hearing before 	ALJ 	Becker.
Because 	Becker knew that he would be 	leaving 	PERB 	at 	the 	time
of 	the 	reopened hearing, 	he 	discussed with 	the parties how
credibility 	questions 	would be 	resolved 	and 	determined 	that he
would 	make 	written 	credibility 	findings.
Becker 	did 	not 	make 	any credibility 	resolutions 	before 	he
left, 	and the 	statement of 	facts 	in the proposed decision was
written by ALJ Fassler. 	The District claims 	that 	it was
prejudiced by 	its 	reliance on Becker's 	representations, 	and 	it
would have 	sought 	rehearing had 	it 	known 	that 	the original
hearing officer 	would not make 	credibility 	resolutions. 	It
further 	argues 	that 	the 	Board 	should not defer to 	ALJ 	Fassler's
credibility 	resolutions.
The 	case was 	reassigned 	to 	Fassler pursuant 	to 	PERB
regulation 	32168(b),3 permitting 	substitution 	of 	Board
3PERB 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 et 	seq. 	Rule 	32168
provides 	in part:
(b) 	A Board 	agent may be 	substituted 	for
another 	Board 	agent 	at 	any 	time 	during 	the
14
•

agents. 	The 	Board has 	repeatedly 	upheld 	the 	substitution
procedure 	in 	cases 	of 	unavailability 	of a hearing 	officer.
Fremont 	Unified 	School District 	(4/5/78) 	PERB Order No. 	Ad-28.
Azusa Unified 	School 	District 	(12/30/83) 	PERB Decision No. 	374.
The 	District 	is correct 	that 	in making 	its decision the
Board 	may 	not 	rely 	on the ALJ's 	credibility 	resolutions 	which
are based on demeanor of the witnesses; however, 	there 	is no
reason that the substitution 	is, 	in and of 	itself, 	improper, 	or
that 	the 	case 	requires 	rehearing.
The 	Board has 	conducted 	an 	independent 	review of 	the record
in order 	to make 	its 	own 	findings of 	fact 	and 	conclusions 	of
law. 	As discussed below, 	we 	do not 	find 	it 	necessary to 	make
credibility 	resolutions 	in order 	to 	resolve 	this case. 	We
conclude, 	therefore, 	that the substitution was entirely proper,
and 	that 	there has been no prejudice 	to 	the 	District.
Amendments 	to 	Charge
The 	District 	excepts 	to 	the ALJ's 	finding 	that 	the
complaint 	was properly amended 	to 	include both 	the 	allegation
of unlawful 	change 	in the 	1982-83 	calendar 	and 	the allegation
of unlawful 	conduct with 	respect 	to the 	Pepsi-Cola machine, 	in
violation of subsections 3543.5(a), 	(b), and (c).
proceeding 	at 	the 	discretion of 	the 	Chief
Administrative 	Law 	Judge 	in unfair practice
cases or 	the General 	Counsel 	in
representation matters. 	Substitutions of
Board agents 	shall be 	appealable only 	in
accordance with 	Sections 	32200 	or 	32300.
15

The 	District 	claims 	that 	the October 	6 amendment 	was barred
by the 	six-month 	statute 	of 	limitations. 	The 	original 	charge
alleging refusal 	to bargain about 	the hours 	of 	the 	teacher
workday was 	filed on January 20, 	1982, 	and was 	amended on
January 26. 	A complaint 	issued on February 2, 	1982. 	The
District adopted the 	"tentative 	calendar" 	on March 	22, 	1982.
On April 	28, 	the Association 	filed with PERB a 	"memo" 	titled
"Amendment 	to Unfair 	Practice 	Charge", 	including allegations
that 	the 	District had 	unilaterally altered 	the 	calendar 	and
disconnected 	the Association's 	vending machine 	without
negotiating with the Association. 	The 	District 	also received a
copy of 	this 	"memo." 	At 	the hearing 	in October, 	the ALJ stated
that he 	would treat 	the April 	28 memorandum as 	a 	"motion to
file 	an 	amendment", 	and he 	subsequently granted that
"motion."4
The 	District would have 	us 	find 	that 	the 	amendment 	is
time-barred 	since the October 	6 date 	of 	the 	amendment 	is more
than 	six months 	after 	the 	calendar 	alteration. 	The 	District
4PERB 	rule 	32655(b), 	in effect at 	the time of 	the memo,
stated:
(b) 	After the 	issuance of a complaint, 	the
Board may allow 	an 	amendment 	to 	the 	charge
or 	an 	amendment 	to the 	answer 	upon written
or 	oral motion on the 	record, 	unless 	a party
objects 	to the 	amendment 	and 	the 	Board
determines 	that 	such 	party shall 	be
prejudiced by the 	amendment. 	Any such
amendment 	allowed 	by 	the 	Board 	shall 	be
16

bases its claim on the fact that there was never a "written or
oral motion on the record" until after the six-month time
period.
On the contrary, we find that the Association's April 28
memo constituted a sufficient notice to amend. 	It 	is clear
from the record that the District had notice of the
Association's intent to amend the complaint when the memo was
automatically 	incorporated 	as 	part 	of 	the
complaint.
In 	effect 	at 	the 	time of 	the hearing were 	PERB 	rules 	32647
and 	32648;
32647. 	Amendment of 	Complaint 	Before 	Hearing
(a) 	The 	charging party may move 	to amend the
complaint. 	Before hearing, 	the charging
party may move 	to amend 	the 	complaint by
filing 	an 	amended 	charge 	and 	request 	to
amend 	complaint 	with 	the 	Board 	agent 	in
compliance with 	Section 	32615. 	If the Board
agent 	determines 	that 	amendment 	of 	the
complaint 	is appropriate, 	the Board agent
shall 	issue 	an amended complaint 	in
accordance with 	Section 	32640.
32648. 	Amendment of 	Complaint 	During Hearing
During hearing, 	the 	charging 	party may move
to amend 	the 	complaint by amending 	the
charge 	in writing, 	or by oral 	motion on the
record. 	The hearing officer may allow 	the
amendment unless a party 	objects 	to 	the
amendment 	and 	the hearing 	officer 	determines
that 	the party would be prejudiced by 	the
amendment. 	If the hearing officer
determines 	that 	amendment 	of 	the 	charge 	and
complaint 	is appropriate, 	the hearing
officer 	shall 	issue 	an amendment 	to 	the
complaint 	in 	accordance 	with 	section 	32640.
17

filed. 	Even by exception, 	the District does not argue that 	it
was prejudiced by the ALJ's granting 	of the amendment; 	it
merely argues 	that 	the 	Association 	did 	not proceed with
procedural 	regularity. 	The District made no 	inquiry 	or protest
before the 	commencement of 	the hearing, 	and 	it 	was given the
opportunity 	to 	fully 	litigate 	the 	issue 	of 	adoption of 	the
calendar 	at hearing. 	We 	therefore 	find 	the 	complaint properly
amended 	to 	include 	this 	issue.
The 	District 	further claims 	that 	the November 	9 amendment
alleging 	that 	removal of 	the 	Pepsi 	machine 	was 	retaliatory 	was
similarly 	time-barred. 	The ALJ writes 	that 	the Association
made a 	motion at 	the hearing 	to amend 	the 	unilateral 	change
charge 	to allege 	that 	the District's action was 	retaliatory.
The 	District 	claims 	that 	the 	motion was 	not made 	during 	the
hearing, 	since 	the Association only 	stated 	its 	intention 	to
amend, 	and 	the 	ALJ expressed his 	willingness 	to allow the
amendment 	if 	it was 	filed 	in writing 	as 	required by the 	current
applicable 	PERB 	regulations. 	The 	actual written motion to
amend was not 	filed 	until November 	8, 	and 	it was 	then granted
by the 	ALJ on November 	9. 	The 	District 	therefore 	asserts 	that
the charge was 	time-barred 	since 	it 	was 	filed 	more 	than 	six
months 	after 	the machine 	was 	replaced.
The ALJ 	relies 	on National 	Labor 	Relations 	Board 	(NLRB)
precedent 	to 	conclude 	that 	a 	complaint 	may be 	amended 	more 	than
six months after the 	conduct 	in question 	if the 	substance of
18

the 	new allegations 	is 	closely 	related 	to 	the 	subject matter
timely charged. 	NLRB v. 	Hotel 	Tropicana 	398 F.3d 	430 	[LRRM
2726 68].
In NLRB v. 	Central Power & Light 	(5th Cir. 	1970) 	425 	F.2d
1318 	[74 LRRM 2268], 	the 	Fifth Circuit 	enforced a board order
in a case 	involving 	an amendment 	to 	a 	complaint made 	more 	than
six months 	after 	the allegedly 	illegal 	conduct. 	The 	original
charge 	alleged 	discriminatory discharge 	and 	that 	the 	company
had violated 	section 	7 	rights by 	"other 	acts and 	conduct." 	A
later 	charge 	concerned 	an 	invalid no-solicitation 	rule.
The 	court 	approved 	the 	incorporation of 	the 	later 	charge,
even 	though 	the 	rule 	was 	promulgated 	more 	than 	six months
earlier because 	the 	"the 	events complained of 	were all part 	of
the 	same alleged anti-union 	campaign, 	were 	close 	together 	in
time, 	and 	were 	clearly covered by 	the 	general 	language of 	the
formal charge."
The District claims 	that 	1) 	the 	subject matter 	is 	not
closely 	related 	since 	a 	charge 	concerning 	the 	reasons 	for 	the
replacement 	of the 	machine 	is 	different 	from a 	charge 	that 	the
decision was made unilaterally, 	and 	2) 	the original 	charge of a
unilateral 	change 	concerning 	the 	Pepsi 	machine 	was 	not 	timely
because 	the April 	28 memo was 	not a proper amendment, 	as
discussed 	above.
The 	cases 	cited by the ALJ 	support his 	conclusion 	that
amendments 	are 	appropriately 	filed 	even after 	the 	six-month
19

period 	if 	the amended 	charges 	are 	closely 	related 	to the
actions 	in the original charge. 	Here 	the Association has
simply added another 	theory of 	the 	case, 	since 	the 	events 	at
issue 	concern 	the 	same 	circumstances 	which 	occurred 	within 	six
months of 	the 	April 	28 amendment 	surrounding 	the 	replacement 	of
the Pepsi machine. 	There 	is 	every reason to 	follow the NLRB
practice permitting amendment here, 	since 	the 	events are 	the
same and, 	again, 	there 	is no evidence of prejudice to the
District. 	The amendment 	was granted by 	the 	ALJ on November 	9,
1982, 	and 	the hearing convened on December 	2 to permit 	the
taking of 	evidence 	on the 	charge of 	retaliation. 	Since 	we have
found 	that 	the April 	28 amendment was properly granted, 	the
November 	amendment 	was properly made. 	We 	therefore 	uphold 	the
ALJ's denial of the District's motion to 	dismiss.
Adoption of 	the 	Tentative 	Calendar
The 	District 	challenges 	the ALJ's 	finding 	that 	there 	was 	an
unlawful unilateral 	change, 	arguing 	that 	its 	action 	in adopting
a 	tentative 	calendar 	in March was 	in 	line with 	long-standing
practice; 	the District was, 	at all times, 	willing 	to negotiate
the calendar 	and 	it 	never 	received 	a 	demand 	to bargain 	about
the calendar. 	It does 	not 	contend 	that 	the 	changes made were
outside 	the 	scope of 	representation.
There 	is 	no dispute 	that 	it 	was customary 	for 	the 	District
to 	adopt 	a 	tentative 	calendar 	in the 	spring of each year.
Steadman 	testified 	that 	that had been 	the 	practice 	as 	long 	as
20

he had been with the 	District 	(nine years) 	but 	that, 	in the
past, 	the 	calendar had been adopted 	tentatively, 	subject 	to
negotiation with the Association. 	While 	the District 	asserts
that that was 	the 	case this year 	as well, 	the 	fact 	remains 	that
negotiations 	did not 	occur 	despite 	the Association's 	request.
It 	is 	also quite 	clear 	that 	at 	the 	time the 	calendar was
adopted 	the 	parties 	were 	involved 	in a number 	of 	disputes,
including 	the 	conflict 	over 	whether 	the 	1981-82 	contract 	had
been 	extended 	or 	whether 	the 	parties 	would 	renegotiate 	the
entire 	contract, 	as 	the Association wished to do. 	In the midst
of 	a 	flurry of 	memos 	and meetings, 	the 	issue of 	the 	calendar
for 	1982-83 was only one 	item in 	question. 	The Association
obviously wished 	to renegotiate 	the 	entire 	contract, 	and 	it
sometimes 	tied the 	calendar 	question to overall 	negotiations.
On balance, 	however, 	the 	record supports 	the ALJ's conclusion
that 	"the District was walking too fine 	a line" 	in 	its
unwillingness 	to negotiate.
Immediately after 	the 	school 	board's 	action 	in adopting 	the
tentative 	calendar, 	Steadman wrote 	to Olson 	indicating the
Association's wish to negotiate 	about 	the 	change 	in the
calendar. 	Three days later, 	Currier wrote to Steadman, 	asking
for 	a meeting to discuss 	employer-employee 	relations 	for
1982-83, 	but making 	it 	clear that 	"these 	discussions 	shall 	not
be negotiations." 	Currier's 	letter 	is 	consistent 	with the
District's 	position that 	it 	would not 	renegotiate 	the 	entire
21

contract, 	and 	Currier 	testified 	that he did 	not know of
Steadman's note 	to Olson. 	However, 	the 	fact 	remains 	that a
clear 	request 	was made by 	the 	Association and was 	not 	answered
by the 	District.
Steadman acknowledged 	that 	at 	the April 	14 meeting he was
interested 	in negotiations 	for 	the 	entire 	contract. 	However,
he 	also 	expressed his 	interest 	in 	negotiating 	about 	the
calendar. 	While 	there 	is 	conflicting 	testimony about 	whether
Steadman or 	Currier 	raised 	the 	calendar 	issue 	and 	whether
Currier 	actually 	said 	the 	District 	did 	not have 	to negotiate
about 	the 	calendar, 	even 	Currier himself 	testified 	that he
raised a 	few matters of 	concern 	"that 	we 	could 	start 	to 	look 	at
and 	maybe resolve 	informally, 	one of 	them was 	the matter of 	the
tentative calendar", 	and that 	the 	calendar 	was discussed. 	The
Association 	expressed no 	interest 	in 	such an arrangement, 	and
did not pursue the calendar 	issue. 	The 	record, 	therefore,
reflects a 	clear 	request 	to 	negotiate 	about 	a 	matter within
scope, 	to which 	the 	District 	responded only with the 	suggestion
that 	the parties 	resolve 	the 	matter 	informally.
The 	District claims 	that 	Steadman's 	testimony 	is 	so
inconsistent that 	it 	is 	inherently unreliable, 	but the
transcript does 	not 	support 	that 	claim. 	The 	ALJ did not
resolve 	the 	conflict between 	Steadman 	and 	Currier's 	versions 	of
what 	was 	said on April 	14, 	finding 	that 	even without 	such a
resolution 	the evidence was 	sufficient 	to 	find 	that 	the
22

District had 	not 	afforded 	the 	Association 	a 	reasonable
opportunity to negotiate. 	We 	agree.
The 	District also objects, 	pursuant 	to 	PERB rule 	32176,5
to any 	reliance 	on 	statements made 	during 	the 	September 	10
settlement 	meeting. 	Steadman testified briefly about 	that
meeting, 	recalling 	that 	Currier had 	indicated 	that 	the 	District
had 	adopted a 	calendar 	"as 	close 	to 	the 	status 	quo as
possible", 	since there 	were 	to be 	no negotiations 	for 	the 	next
year. 	Olson 	and 	Currier 	testified 	that 	they had not 	said 	the
calendar year 	was 	final, 	nor had 	they 	refused 	to negotiate.
First, 	it 	is 	not clear 	from the testimony that 	the meeting
was 	for 	settlement purposes. 	Further, 	while 	the 	ALJ makes
findings 	regarding 	statements at 	this 	meeting, 	he apparently
does 	not 	rely upon them 	in articulating 	the 	rationale 	for his
5Regulation 	32176 provides 	in part:
. 	. 	. 	Evidence of any discussion of the case
that 	occurs 	in an 	informal 	settlement
conference 	shall be 	inadmissible 	in
accordance with 	Evidence Code 	section 	1152.
Evidence 	Code 	section 	1152 provides 	in part:
(a) 	Evidence that a person has, 	in
compromise 	or 	from humanitarian motives,
furnished 	or 	offered 	or 	promised 	to 	furnish
money or any other thing, 	act, 	or service,
to 	another who has 	sustained 	or 	will 	sustain
or 	claims 	that he has 	sustained or 	will
sustain loss or damage, 	as well as any
conduct 	or 	statements made 	in negotiation
thereof, 	is 	inadmissible to prove his
liability 	for 	the 	loss 	or 	damage 	or 	any part
of 	it.
23

finding of a violation, 	nor 	would we 	consider 	such 	reliance
necessary. 	Even 	if the District 	never 	said 	the calendar was
final, 	its unwillingness 	to negotiate had that 	result.
The District 	objects 	to 	the ALJ's 	suggestion that 	it had 	an
affirmative 	duty 	to signal 	to the 	Association that 	it 	was
willing 	to negotiate about the calendar. 	However, 	the ALJ's
conclusion was 	that 	the 	District did have 	such a 	duty, 	given
the Association's 	requests to 	negotiate 	about 	any change 	in the
calendar.6
The District 	further objects 	to 	the ALJ's 	conclusion 	that
the Association did not 	waive 	its 	right 	to negotiate 	the
calendar. 	The District 	takes 	the 	interesting position 	that 	the
issue 	is 	not waiver at all, 	but 	rather whether 	the Association
ever 	demanded 	to 	bargain 	about 	the 	calendar.
As 	noted by 	the 	ALJ, 	PERB concluded 	in Newman-Crows 	Landing
Unified 	School District 	(6/30/82) 	PERB Decision No. 	223, 	that a
request 	to negotiate 	need not be 	specific 	or made 	in a
particular 	form to be effective. 	Further, 	the District need
not 	actually 	refuse 	to negotiate about 	an 	issue 	in 	order 	for
PERB to 	find 	that 	it 	did not afford 	an opportunity for
6The 	ALJ also noted 	that 	the April 	28 memo of amendment
to the Association's 	charge 	listed 	the 	District's 	refusal 	to
negotiate 	about calendar 	change, 	thereby giving 	the District
further 	notice of 	the Association's 	interest 	in this 	issue, 	if
there 	was any doubt. 	However, 	PERB has previously determined
that 	"a 	charge 	cannot 	trigger 	a duty 	to negotiate 	if 	the
employer had no pre-existing 	obligation 	to bargain." 	Delano
Joint Union High School 	District 	(5/5/83) 	PERB Decision No. 	307,
24

negotiation. 	Contrary 	to the District's assertion, 	the
relevant 	inquiry 	is 	whether the Association waived 	its 	right 	to
negotiate 	about 	a 	matter 	within 	scope by 	failing 	to 	request
negotiations. 	In order to demonstrate 	that 	the Association has
waived 	its 	right 	to negotiate, 	the 	District must 	show either
clear 	and 	unmistakable 	language 	or 	demonstrable behavior
waiving 	a 	reasonable opportunity 	to bargain 	over 	a decision 	not
already 	firmly made by the 	employer. 	Amador 	Valley Joint Union
High School District 	(10/2/78) 	PERB Decision No. 	74. 	San Mateo
County Community College 	District 	(6/8/79) 	PERB 	Decision
No. 	94. 	Here the Association made at 	least one written request
to negotiate, 	and 	its wish 	to 	negotiate was discussed 	further
on April 	14. 	The District 	never 	agreed 	to do more 	than
informally discuss 	the 	issue. 	The District argues 	that 	the
Association never 	came 	forward with a proposal 	related 	to 	the
calendar. 	However, 	we 	find 	that 	the Association's 	failure 	to
do 	so 	was 	reasonable 	given 	the 	District's 	refusal 	to
acknowledge 	a duty to negotiate. 	See 	Kern 	Community College
District 	(8/19/83) 	PERB Decision No. 	337. 	We therefore 	uphold
the ALJ's 	finding 	that 	the 	District did not 	afford 	the
Association 	a 	reasonable 	opportunity 	to 	negotiate 	and 	thereby
violated 	section 	3543.5(c) 	of 	EERA.
The 	District 	indicated at hearing 	its 	willingness 	to
negotiate 	about 	this 	issue, 	contending 	that 	the calendar was
still 	tentative 	rather 	than 	final 	and 	that 	there had as yet
25

been no unilateral 	change. 	The parties were, 	however, 	unable
to 	settle 	this 	aspect of the case. 	We nevertheless uphold 	the
ALJ's 	conclusion that 	the 	finding of a 	violation was 	warranted,
since 	the Association had 	made 	a 	timely 	request 	to 	negotiate 	at
the 	time 	the 	school board 	first 	took 	action and 	the 	District
had not 	in the 	intervening months 	so 	much as 	indicated 	that 	it
was willing 	to negotiate, 	thereby denying 	the Association a
reasonable opportunity to 	negotiate 	the 	calendar.
The 	District 	argues 	that 	the 	ALJ 	improperly distinguishes
San Jose 	Community College 	District 	(9/30/82) 	PERB Decision
No. 	240 	in which 	PERB found that 	the District had not made an
unlawful 	change 	in adopting a 	tentative 	student calendar. 	In
that case, 	the 	Board 	found 	that 	the 	District had met 	its 	duty
to 	negotiate 	since 	it was actively 	involved 	in negotiation with
the 	Association both before 	and 	after 	adoption of 	the
calendar. 	However, 	the ALJ does not cite 	that case, 	as 	the
District 	suggests, 	for the proposition that 	the District has an
affirmative duty to 	invite negotiations, 	but 	rather 	for 	the
principle 	that 	a district does 	not 	necessarily violate 	its 	duty
to 	negotiate by adopting a 	tentative 	student calendar while 	in
the process 	of 	negotiating 	with 	the 	exclusive 	representative.
Further, 	the Board has more 	recently 	found 	a 	violation on
the 	unilateral 	adoption of a 	tentative 	calendar 	in Oakland
Unified 	School 	District 	(12/16/83) 	PERB Decision No. 	367 where,
as here, 	the 	adoption of 	the 	calendar 	altered 	the holidays
26

scheduled 	in the parties' 	collective bargaining 	agreement 	and
the 	calendar was 	intended 	to 	cover both 	students and 	employees.
Having 	found 	that 	the 	District 	violated 	subsection
3543.5(c) 	by taking unilateral 	action on 	a matter within 	scope
without 	giving 	the 	Association 	a 	reasonable 	opportunity 	to
negotiate 	about 	that change, 	we note 	that 	such unilateral
action also 	constitutes 	a 	concurrent 	deprivation of 	the 	right
of 	employees 	to 	representation on 	matters 	relating 	to 	terms 	and
conditions 	of employment 	in 	violation of 	subsection 	3543.5(a)
and 	the right 	of 	the Association 	to 	represent 	its members 	in
violation of subsection 	3543.5(b).
The 	Pepsi 	Machine
The Association 	originally argued 	that 	the 	change 	in
vending machines 	was an unlawful unilateral 	change, 	because 	it
unilaterally deprived 	the Association 	of 	revenue. 	The ALJ
found 	that 	the decision 	to 	replace 	the 	Pepsi machine 	was 	not 	a
violation of subsection 3543.5(c), 	since 	it did not effect a
change 	in a matter 	within scope. 	He 	therefore 	dismissed 	the
(c) charge.
The ALJ did 	find, 	however, 	that 	the removal of the machine
was 	carried out 	in 	retaliation 	for 	the 	Association's 	exercise
of 	statutorily protected 	rights, 	and 	was 	therefore 	a 	violation
of 	subsection 	3543.5(b), 	and concurrently subsection
3543.5(a). 	The District excepts to this conclusion.
27

In 	so 	finding, 	the 	ALJ relied on the analytical 	framework
used by 	the 	Board 	in 	Novato 	Unified 	School 	District 	(4/30/82)
PERB Decision No. 	210 	to 	resolve cases 	involving 	reprisals
against 	employees. 	He 	concluded 	that 	it 	was appropriate 	to use
the 	same 	framework 	in analyzing cases 	involving 	retaliation
against 	employee organizations, 	noting 	that 	the National Labor
Relations Act 	(NLRA) 	does 	not contain similar 	language 	to
EERA's subsection 3543.5(b) 	and, 	therefore, 	offers no
applicable precedent.
Following 	this 	analysis, 	he chronicled 	the Association's
protected 	activities, 	and 	found 	that 	the 	evidence 	supports a
finding 	that 	the board's 	dissatisfaction with 	this 	protected
activity 	was a 	factor 	in the decision 	to substitute machines.
He 	rejected 	the District's 	claim 	that 	the 	machine 	was
disconnected because 	1) 	it was a nuisance, 	2) 	the District
feared 	it was 	illegal 	for the Association to operate 	it, 	and
3) 	the 	District 	found a 	convenient 	and profitable alternative.
He 	found 	also that 	the District's action 	in 	retaliation 	against
the 	Association 	interfered with 	the 	right 	of employees 	to be
represented, 	thereby violating subsection 	3543.5(a).
The 	District 	claims 	that 	the 	ALJ's use of a Novato analysis
is 	inappropriate here. 	It 	further claims 	that, 	even 	if such an
analysis 	were used, 	the 	evidence does 	not 	support 	the
conclusions 	reached by 	the 	ALJ.
28

Subsection 	3543.5(b) 	states 	that 	it 	shall be unlawful 	for a
public 	school 	employer to 	"[d]eny 	to 	employee 	organizations
rights guaranteed 	to them by 	this 	chapter." 	Those 	rights are
enumerated 	in 	section 	3543.1:
(a) 	Employee organizations 	shall have the
right 	to 	represent 	their 	members 	in their
employment 	relations 	with public 	school
employers, . . .
(b) 	Employee organizations 	shall have 	the
right 	of 	access at 	reasonable 	times 	to areas
in which employees work, 	the right 	to use
institutional bulletin boards, 	mailboxes,
and other means of communication, 	subject 	to
reasonable 	regulation, 	and the 	right 	to use
institutional 	facilities 	at 	reasonable 	times
for 	the purpose 	of 	meetings 	concerned with
the 	exercise of 	the 	rights 	guaranteed by
this chapter.
(c) 	A reasonable number of 	representatives
of an exclusive 	representative 	shall have
the right 	to 	receive 	reasonable periods 	of
released 	time without 	loss 	of 	compensation
when 	meeting 	and 	negotiating 	and 	for 	the
processing of grievances.
(d) 	All 	employee organizations 	shall have
the 	right 	to have 	membership 	dues
deducted . 	. 	.
In order to 	establish a violation of 	subsection 	3543.5(b),
the 	charging party must 	initially prove 	that 	the 	employer has
denied 	to 	an 	employee organization 	"rights 	guaranteed by 	this
chapter." 	The 	employer here argues 	that 	the 	charging party has
failed 	to 	establish 	that 	element of a prima 	facie 	case, 	and we
agree. 	It 	is 	not 	apparent what 	right 	an employee 	organization
has 	to 	maintain a 	Pepsi 	machine 	for 	its own profit 	on 	the
employer's premises, 	and neither 	the 	ALJ or 	the Association
29

points 	to any. 	We 	find no precedent 	for 	finding a 	(b)
violation 	for 	discrimination 	against 	an 	employee 	organization
(as opposed 	to an 	individual) 	because of 	its protected 	activity
when 	no 	right 	guaranteed by EERA has 	been 	infringed. 	State 	of
California 	(California 	Department of 	Corrections) 	(5/5/80) 	PERB
Decision No. 	127-S.
The employer goes on to argue that, 	even 	if a violation
could be 	found because 	the 	District had 	retaliated 	against 	the
Association 	for 	its protected 	activity by 	removing 	the
Association's 	Pepsi 	machine and 	the 	ALJ's 	Novato analysis 	was
proper, 	the District here has offered 	sufficient evidence 	to
establish that 	the 	removal 	was 	not 	retaliatory and 	it would
have occurred 	anyway because of nuisance, 	the possibility of 	a
more 	utilitarian 	model 	and possible 	illegality.
This 	latter argument 	refers 	to 	dicta 	in the original
Healdsburg PERB No. 	132, 	supra, 	language at p. 	33 dealing with
the parameters 	of unlawful 	employer 	assistance 	to 	an employee
organization. 	In 	finding a proposal 	which would have 	required
the 	District 	to 	finance 	conference 	expenses 	for 	CSEA conference
delegates outside of 	scope, 	Member 	Moore 	noted that:
Direct 	cash payments 	are 	illegal 	(citation
omitted), 	as are payments of union legal
fees 	(citation omitted) 	and 	financial
assistance 	derived 	from vending 	machines 	and
flower 	funds 	Connor 	Foundry 	Company 	(1952)
100 NLRB 146 	[30 LRRM 1250J. 	Other 	forms 	of
financial assistance, 	however, 	are viewed as
permissable 	friendly 	cooperation 	(citation
30

omitted) 	or 	excused because 	the amount of
assistance 	is 	seemed 	minimal 	(citations
omitted).
While 	the 	distinction 	involving 	employer
communication and 	internal business 	is
maintained 	because 	of 	the 	express 	language
of 	the proviso contained 	in the NLRA, 	I am
persuaded 	that 	financial 	support 	is
impermissible when 	its primary purpose 	is 	to
subsidize 	internal union business. 	The
comment 	in Dairylea Cooperative, 	Inc. 	(1975)
219 NLRB 656 	[89 LRRM 1737] 	with regard 	to
the employer's payment 	to union 	stewards 	is
similarly 	appropriate:
. 	. 	. 	it is nevertheless remains
the union's 	task 	to build and
maintain 	its 	own organization.
Chairperson Gluck concurred. 	On remand, 	the Board, 	without
Moore, 	affirmed 	its conclusion with 	regard 	to the 	specific
proposal 	in question.
Here 	there 	is 	evidence 	that 	the 	funds 	from the machine were
in 	fact used 	for 	internal union business. 	In the past, 	the
District had 	at 	a 	minimum allowed 	its premises 	and 	the 	machine
to be used 	for 	the union's profit and, 	at 	one point, 	even
assisted 	in operating 	the 	machine 	and 	depositing 	the 	money 	to
the union's 	account. 	It 	appears 	that 	the operation of 	the
machine probably could be unlawful 	assistance; 	at 	any rate 	the
District had good 	reason 	to 	reconsider 	its past policy 	in 	light
of Healdsburg, 	PERB No. 	132 	supra. 	See also State of
California 	(Department of Corrections), 	supra. 	Clovis Unified
School District 	(7/2/84) 	PERB Decision No. 	389.
31

In any case, 	it 	is unnecessary to consider whether the
District has 	demonstrated 	sufficient 	justification 	for 	removing
the 	machine 	since 	we have 	found 	no 	interference with protected
rights in 	its doing so. 	We, 	therefore, 	overturn the ALJ's
finding 	that 	the 	District 	violated 	EERA by 	removing 	the 	machine
in retaliation 	for protected activity, 	and we 	dismiss all
charges 	related 	to that 	issue.
ORDER
Pursuant 	to subsections 	3541.5(c), 	and based upon the
foregoing 	findings of 	fact, 	conclusions of 	law, 	and 	the entire
record 	in this case, 	the 	Public 	Employment 	Relations 	Board
hereby ORDERS that 	the Gonzales 	Union 	High 	School 	District
shall:
A. 	CEASE 	AND DESIST 	FROM:
1. 	Unilaterally making 	changes 	in 	the 	employee
calendar 	without 	providing 	notice 	and 	a 	reasonable 	opportunity
to negotiate 	to the 	Gonzales 	Union 	High 	School 	District
Teachers Association, 	CTA/NEA.
2. 	Denying 	to the Gonzales Union High School 	District
Teachers 	Association, 	CTA/NEA rights guaranteed by 	the
Educational Employment Relations Act, 	including the right to
represent 	its members.
3. 	Interfering with employees 	in the exercise of
rights guaranteed by 	the 	Educational 	Employment 	Relations 	Act,
including 	the 	right 	to be 	represented by 	their 	chosen
representative.
32

B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT RELATIONS
ACT:
1. 	Upon request, 	meet with and negotiate with 	the
exclusive 	representative 	regarding 	the 	calendar.
2. 	Restore 	the 	day after 	Easter as a 	District holiday
until 	such time as 	the parties 	reach 	agreement 	or 	negotiate
through 	completion 	of 	the 	statutory 	impasse 	procedure
concerning 	the 	subject matter 	of 	the 	unlawful 	unilateral
change. 	However, 	the status quo ant
----
e 	shall not be restored 	if,
subsequent 	to the District's 	actions, 	the parties have, 	on
their 	own 	initiative, 	reached 	agreement 	or 	negotiated 	through
the 	impasse procedure 	concerning 	the 	subject matter 	of 	the
unilateral change.
3. 	Within thirty-five 	(35) 	days 	following 	the date
the decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post 	at
all work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	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 	insure 	that 	this
Notice 	is not 	reduced 	in size, 	defaced, 	altered, 	or covered by
any material.
4. 	Written 	notification of 	the 	actions 	taken 	to
comply with 	this 	Order 	shall be 	made 	to 	the 	Regional 	Director
33

of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance with her
instructions.
C. 	All other charges are 	dismissed.
Members 	Tovar 	and 	Jaeger 	joined 	in 	this 	Decision.
34

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. 	SF-CE-633,
Gonzales Union High School District Teachers Association,
CTA/NEA v. 	Gonzales Union High 	School 	District, 	in which all
parties had the 	right to participate, 	it has been found that
the District violated Government 	Code 	subsections 	3543.5(a),
(b) 	and 	(c) 	by unilaterally changing the school 	calendar 	and
eliminating a holiday 	for 	certificated 	employees 	without
affording the 	exclusive 	representative 	notice 	and the
opportunity to negotiate.
As 	a result of 	this 	conduct, 	we have been ordered to post
this Notice 	and we 	will:
A. 	CEASE AND DESIST 	FROM:
(1) 	Failing and refusing to meet 	and negotiate 	in
good 	faith with the 	Gonzales 	Union High 	School 	District
Teachers Association, 	CTA/NEA with respect 	to 	changes 	in the
employee 	calendar.
(2) 	Interfering with the 	rights 	of 	employees 	to be
represented 	by 	failing 	and 	refusing 	to meet 	and negotiate 	in
good 	faith.
(3) 	Denying to the Gonzales Union High School
District Teachers Association, 	CTA/NEA the 	rights 	to represent
employees 	by 	failing and 	refusing 	to meet 	and 	negotiate 	in good
faith.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES 	OF THE EDUCATIONAL EMPLOYMENT 	RELATIONS
ACT:
(1) 	Upon request, 	meet with and negotiate with the
exclusive 	representative 	concerning 	the 	calendar.
(2) 	Reinstate 	the 	day after 	Easter 	as 	a holiday for
certificated 	employees 	until 	such 	time 	as 	the 	parties 	reach
agreement 	or 	negotiate through 	completion of 	the 	impasse
procedure 	concerning 	the 	subject matter 	of 	the 	unlawful
unilateral 	change. 	However, 	the 	status 	quo ante 	shall 	not be
1

restored 	if, subsequent to the District actions, 	the parties
have, 	on their own 	initiative, 	reached agreement or 	negotiated
through 	completion of 	the 	impasse 	procedure 	concerning 	the
subject matter of 	the unilateral 	change.
DATED: 	GONZALES UNION HIGH 	SCHOOL DISTRICT
By: Authorized 	Representative
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE DEFACED, 	ALTERED, 	REDUCED 	IN SIZE OR COVERED WITH ANY OTHER
MATERIAL.
22