Monrovia Unified School District (PERB 0460E)

STA
TE 	OF
	CALIFORNIA
DECISION
	OF THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
)
)
)
)
MONROVIA
	TEACHERS
	ASSOCIATION,
CTA/NEA,
Charging
	Party,
v.
MONROVIA
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
Case
	No. 	LA-CE-155 2
PERB
	Decision
	No. 	460
December
	13,
	1984
)
)
)
)
)
)
)
Appearances: 	Sandra
	H.
	Paisley,
	A.
	Eugene
	Huguenin,
	Jr.,
	and
Jerry
	B.
	Allen,
	Attorneys 	for
	Monrovia
	Teachers
Association,
CTA/NEA;
	O'Melveny	
& Myers 	by
	Robert
A.
	Siegel
	and
Diane
	L.
	Whiting
	for
	Monrovia
	Unified
	School
	District.
Before
	Tovar,
	Jaeger,
	and
	Burt,
	Members.
DECISION
BURT, 	Member:
	This 	case
	comes
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	exceptions
	filed
	by
	both
parties.
	The
	Monrovia
	Unified
	School
	District
	(District)
excepts 	to 	the 	proposed
	decision 	of 	the 	administrative
	law
judge
	(ALJ)
	finding
	that
	the
	District
	violated 	sections
3543.S(a), 	(b),
	and 	(c)
	of 	the 	Educational
	Employment
	Relations
Act
	(EERA) 1 by
	its
	unilateral
	imposition 	of
	discipline.
	The
Monrovia 	Teachers Association,
	CTA/NEA,
	(Association 	or
	MTA)
excepts 	to 	the
	remedy
	provided 	by 	the
ALJ. 	For
	the 	reasons 	set
1
EERA
	is 	codified 	at
	Government 	Code
	section
	3540
et
	seq. 	All 	statutory 	references 	herein 	are 	to 	the 	Government
Code
	unless 	otherwise 	noted.

out 	below, 	we 	reverse 	the ALJ's 	finding 	that 	the 	District
violated 	EERA 	and 	dismiss 	the 	complaint 	in 	its 	entirety.
FACTS
We 	have 	reviewed 	the ALJ's 	findings 	of 	fact 	in 	light 	of 	the
entire 	record. 	Finding 	them 	to 	be 	free 	of 	prejudicial 	error,
we 	adopt 	them 	as 	the 	findings 	of 	the 	Board. 	A summary 	of 	those
findings 	follows.
Marcia Wilson 	is 	a 	physical 	education 	teacher 	who 	has 	been
employed 	in 	the 	District 	for 	19 	years. 	In 	February 	of 	1982,
Ms. 	Wilson 	received 	a 	letter 	of 	reprimand-from Terry Giboney,
director 	of 	personnel 	services, 	arising 	out 	of 	a 	complaint 	by 	a
parent. 	The 	letter, 	which 	noted 	that 	Ms. 	Wilson 	could 	file 	a
rebuttal 	statement, 	was 	placed 	in 	her 	personnel 	file.
On March 	12, 	1982, 	Ms. 	Wilson 	received 	a 	written 	five-day
suspension 	with 	pay 	because 	of 	a 	separate 	incident 	in 	which
Wilson 	had 	allegedly 	refused 	to 	report 	to 	the 	office 	when
requested 	to 	do 	so 	to 	help 	with 	a 	student 	who 	had 	become 	ill 	in
her 	class. 	The 	letter 	recited 	specific 	grounds 	deemed 	to
constitute 	insubordination 	and 	breach 	of 	professional
responsibilities, 	and 	directed 	Wilson 	to 	report 	to 	a
non-teaching 	assignment 	at 	another 	school 	site 	for 	the 	five
days 	of 	the 	following 	week, 	beginning 	March 	15.
The 	Contract
The Association 	and 	the 	District 	have 	been 	parties 	to 	two
successive 	collective 	bargaining 	agreements 	since 	February 	of
2

1978. 	The 	agreement 	in 	effect 	at 	the 	time 	of 	this 	incident 	ran
from 	July 	1980 	through August 	1982. 	It 	had 	no 	language
specifying 	procedures, 	grounds 	or 	methods 	of 	discipline, 	but 	it
mentioned 	discipline 	several 	times. 	Article 	III, 	outlining
retained 	management 	rights, 	provided:
A. 	All 	matters 	not 	specifically 	enumerated
as 	within 	the 	scope 	of 	negotiations 	in
Government 	Code 	3543.2 	are 	reserved 	to 	the
District. 	It 	is 	agreed 	that 	such 	reserved
rights 	include, 	but 	are 	not 	limited 	to, 	the
exclusive 	right 	and 	power 	to 	determine,
implement, 	supplement, 	change, 	modify 	or
discontinue, 	in 	whole 	or 	in 	part,
temporarily 	or 	permanently, 	any 	of 	the
following:
7. 	The 	selection, 	classification,
direction, 	promotion, 	demotion, 	discipline
and 	termination 	of 	all 	personnel 	of 	the
District; 	.•.
Article 	IX, 	governing 	evaluation 	procedures 	provides 	as 	follows:
J. 	Discipline/Discharge 	Proceedings 	- 	While
evaluation 	procedures 	may 	in 	many 	cases 	be
related 	for 	evidentiary 	purposes 	to
disciplinary/discharge 	proceedings,
discipline 	and 	discharge 	procedures 	may 	in
appropriate 	cases 	be 	undertaken
independently 	of 	the 	evaluation 	procedures
contained 	in 	this Article.
That 	article 	also 	details 	the 	right 	of 	a 	unit 	member 	to
examine 	and 	respond 	to 	derogatory 	material 	placed 	in 	the
personnel 	file.
The 	language 	of 	the 	management 	rights 	article 	and 	the
evaluation 	article 	in 	the 	1980-1982 agreement 	was.taken
directly 	from 	the 	previous 	agreement.
3

1982 Negotiations
In 	1981, 	the 	Legislature 	adopted AB 	777 	and AB 	61, 	both 	of
which 	amended 	EERA 	section 	3543.2 with 	the 	effect 	that 	the
previous 	scope 	section 	was 	denominated 	(a), 	and 	section 	(b) 	was
added 	effective 	January 	1, 	1982: 2
(b) 	Notwithstanding 	Section 	44944 	of 	the
Education 	Code, 	the 	public 	school 	employer
and 	the 	exclusive 	representative 	shall, 	upon
request 	of 	either 	party, 	meet 	and 	negotiate
regarding 	causes 	and 	procedures 	for
disciplinary 	action, 	other 	than 	dismissal,
affecting 	certificated 	employees. 	If 	the
public 	school 	employer 	and 	the 	exclusive
representative 	do 	not 	reach 	mutual
agreement, 	then 	the 	provisions 	of 	Section
44944 	of 	the 	Education 	Code 	shall 	apply3
AB 	777, 	passed 	and 	chaptered 	first, 	specified 	in 	subsection
(b) 	that 	the 	"public 	school 	employer 	and 	the 	exclusive
representative 	shall 	meet 	and 	negotiate. 	" 	AB 	61,
effective 	on 	the 	same 	date 	but 	passed 	as 	cleanup 	to AB 	777 	and
chaptered 	thereafter, 	added 	the 	qualifying 	language 	"upon
request 	of 	either 	party."
On 	February 	16, 	1982, 	Sandra 	Paisley, 	associate 	counsel 	of
the 	California 	Teachers Association, 	sent 	a 	letter 	to
2rhe 	1982 amendments 	also 	added 	a 	subsection 	(c), 	and 	the
1983 	amendments 	added 	subsection 	(d), 	neither 	of 	which 	are
relevant 	here.
3Education 	Code 	section 	44944 	is 	contained 	within
Chapter 	4, 	Article 	III, 	relating 	to 	resignations, 	dismissals
and 	leaves 	of 	absence 	of 	certificated 	employees. 	Section
44944, 	itself, 	provides 	hearing 	procedures 	for 	an 	employee
notified 	of 	intended 	dismissal.
4

Terry Giboney, 	the 	director 	of 	personnel 	services, 	demanding
that 	the 	District 	"stop 	harassing 	and 	threatening
Ms. 	Marcia 	Wilson." 	The 	letter 	complains 	about 	meetings 	which
an Association 	representative 	was 	not 	allowed 	to 	attend 	and
about 	"verbal 	insults 	and 	abuse" 	suffered 	by Ms. 	Wilson 	at 	a
conference 	with 	a 	parent 	and 	the 	principal. 	The 	l~tter
continues 	as 	follows:
You 	also 	threatened 	Ms. 	Wilson 	with
suspension 	without 	pay 	during 	the 	February 	9
meeting. 	Effective 	January 	1, 	1982,
amendments 	to 	the 	Government 	Code 	provide
that 	either 	the 	District 	or 	the 	exclusive
representative 	may 	request 	the 	other 	party
to 	negotiate 	discipline. 	Since 	there 	is 	no
such 	provision 	in 	the 	contract 	with MTA, 	I
can 	only 	assume 	that 	your 	threat 	manifests
an 	intent 	to 	negotiate 	this 	topic.
If 	you 	will 	put 	your 	initial 	proposal 	in
writing, 	MTA 	will 	respond. 	The 	District 	can
then 	"sunshine" 	both 	proposals, 	adobt 	its
position, 	and 	we 	can 	go 	to 	the 	table.
The 	letter 	went 	on 	to 	complain 	about 	other 	incidents 	of
harassment. 	Neither 	the 	District 	nor 	the Association 	ever 	made
a 	proposal 	to 	negotiate. 	The Association 	contends 	that 	this
letter 	constitutes 	a 	valid 	request 	to 	negotiate.
In 	March, 	the 	parties 	were 	preparing 	to 	negotiate 	a
successor 	agreement. 	As 	an 	attachment 	to 	its 	proposal, 	there
was 	a 	cover 	letter 	from 	the 	District 	summarizing 	the 	goals 	and
objectives 	to 	be 	sought 	by 	the 	District 	in 	negotiations,
including 	its 	wish 	"[T]o 	increase 	the 	ability 	of 	the 	District
to 	discipline." 	The 	issue 	was 	dropped, 	however, 	and 	a 	proposal
5

was 	never 	forthcoming 	from 	the 	District. 	The Association 	made
no 	proposal 	relating 	to 	discipline 	for 	the 	subsequent 	contract.
In April, 	Paisley 	wrote 	to 	Robert A. 	Siegel, 	the 	District's
attorney 	as 	follows:
The 	Monrovia 	Teachers Association, 	by 	this
letter, 	hereby 	notices 	the 	Monrovia 	Unified
School 	District 	that Articles 	III, 	V, 	IV,
and 	xvrr 4 	have 	been 	found 	to 	be 	invalid 	by
operation 	of 	law 	as 	they 	are 	in 	conflict
with 	various 	provisions 	of 	the 	EERA.
Pursuant 	to Article 	XVI, 	Separability 	and
Savings, 	the Association 	in 	notifying 	you
that 	since 	the 	above 	articles 	have 	been
found 	to 	be 	in 	contravention 	of 	state 	law,
that 	they 	are 	hereby 	severed 	from 	the
Agreement.
The Association, 	of 	course 	recognizes 	that
the 	remainder 	of 	the Agreement 	shall 	remain
in 	full 	force 	and 	effect 	and 	will 	have 	its
negotiating 	team 	available 	to 	meet 	and
negotiate 	with 	the 	District's
representatives, 	upon 	request, 	regarding
replacement 	of 	the 	above 	articles 	with
substitute 	and 	legally 	acceptable 	provisions
if 	so 	desired.
The 	District 	responded, 	deeming 	the Association's
assertions 	that 	these 	sections 	were 	invalid 	to 	be 	"unfounded
and 	irresponsible," 	and 	declaring 	the 	entire 	agreement 	to 	be 	in
full 	force 	until 	expiration.
The 	parties 	discussed 	this 	interchange 	at 	the 	bargaining
table, 	since 	there 	were, 	at 	the 	time, 	Association 	proposals 	on
the 	table 	which 	were 	unchanged 	from 	those 	which 	had 	been
4Retained 	Management 	Rights, 	Grievance 	and Arbitration
Procedures, 	Work 	Stoppage 	and 	Entire Agreement.
6

asserted
	to
	be
	null
	and
	void;
	for
	example,
	the
	management
rights
	article.
	After 	discussion
	of
	the 	inconsistency
	of 	the
Association's
	position--that
	these
	sections
	were
	unlawful
	but
still
	should
	be
	negotiated--the
	Association
	withdrew
	its
	claim
that
	the
	sections
	were
	somehow
	defective.
Past 	Practice
Denita 	Polk,
	an
Association
	officer,
	testified
	about
	her
personal
	knowledge
	of
	past
	instances 	of
	discipline
	in 	the
District.
	She 	knew
	of
	one
	reprimand
	and
	of
	no
	suspensions.
Giboney,
	the 	personnel
	director,
	testified
	that
	he
	had
reviewed
	District
	records
	and
	found
	various
	forms
	of
disciplinary
	action
	totaling
	25
	since
	1977.
	Most
	of
	these
incidents
	involved
	warning
	letters
	placed 	in
	a
	teacher's
	file.
There
	were
	also 	three
	official
	reprimands
	and 	one
	suspension
with
	pay 	and 	one
	suspension 	without 	pay, 	both
	arising
	out 	of
the
	same
	incident.
	The
	suspensions 	occurred 	in
	1977,
	after
passage 	of 	the
	EERA,
	but 	before 	the
	parties
	had 	a
	collective
bargaining
	agreement.
	The ALJ
	credited
	Giboney's 	testimony
regarding 	past 	practice 	since 	the 	personnel
	director
	was
custodian 	of 	personnel 	records
	and 	had 	been 	employed
	in
	that
capacity 	for 	years.
The
	District
	had 	no
	formal 	procedures 	for
	imposing
discipline,
	although 	there
	was
	testimony
	that 	teachers
	were
always 	permitted 	to
	file 	their
	disagreement 	with 	derogatory
material 	placed 	in 	personnel
	files.
	The
	District
	did 	have 	a
7

general
	school
	board
	policy
	setting
	out 	the
	duties
	and
responsibilities
	of
	certificated
	employees
	and
	referencing
various 	sections
	of
	the
	Education
	Code.
	(This
	policy
	was
	not
offered
	as
	an
	Exhibit.)
Charge
Amendment
On
March
	17,
	1982,
	just 	after
	the 	imposition 	of 	the
suspension 	of
	Marcia Wilson,
	the
Association
	filed
	a
	charge
against
	the
	District
	alleging
	that
	it
	violated 	sections
3543.S(a),
	(b) 	and 	(c)
	of
	EERA.
	The
	facts 	recited 	that
	an
official
	reprimand
	was
	issued 	to
	a
	unit
	member
	(Attachment
A),
a
	letter
	was
	sent 	to 	the
	District
	(Attachment
	B),
	and
	"the
response 	to
	that
	letter
	(Attachment
	C)
	does
	not
	indicate
	an
intent
	to
	negotiate 	in
	good
	faith
	as
	to 	matters 	of
discipline."
	Further, 	the 	charge
	continued, 	the 	bargaining
unit
	member 	was
	later
	suspended 	(a 	copy
	of 	the 	suspension
	is
Attachment
	D).
	It
	concludes:
At
	no
	time 	has 	Respondent
	indicated
	that
	it
wished
	to 	negotiate
	discipline.
	Charging
Party
	at
	no
	time 	waived
	its
	right
	to
negotiate
	this
	topic
	which 	was
	added
	to 	the
scope 	of
	representation 	effective
	January 	1,
1982. 	Not 	even 	minimal
	procedural
	due
process
	(i.e.,
	Notice
	and 	an
	opportunity 	to
be 	heard)
	standards
	were
	followed
	by
	the
District.
Such
	unilateral 	action 	taken
	by
	Respondent
has 	denied 	Charging
	Party 	Rights 	guaranteed
by Government 	Code
	sections
	3540
et
	seq.
Attached 	to 	the 	charge
	were
	the 	various
	letters
	and 	memos
noted 	above, 	including 	the 	February
	16
	letter
	from
	Paisley 	to
8

Giboney 	complaining, 	among 	other 	things, 	about 	the 	lack 	of
representation 	in 	two 	meetings.
The 	District 	answered 	briefly, 	denying 	the 	allegations 	and
asserting 	that 	it 	disciplined 	Ms. 	Wilson 	in 	accordance 	with
past 	practice 	and 	that 	it 	never 	received 	a 	request 	to 	bargain
from 	the Association. 	The 	District's Answer, 	at 	paragraph 	3,
asserts 	that 	the 	District 	did 	allow 	the 	presence 	of 	an
Association 	member 	at 	the 	disciplinary 	hearing 	preceding 	the
decision 	to 	discipline Ms. 	Wilson, 	but 	was 	not 	required 	to 	do
so 	at 	an 	earlier 	parent/teacher 	conference.
At 	the 	commencement 	of 	the 	hearing, 	the Association 	moved
to 	amend 	the 	complaint 	to 	include 	the 	charge 	of 	denial 	of
representation 	in 	the 	parent/teacher 	conference. 	Even 	though
he 	specifically 	found 	that 	the 	District 	was 	not 	surprised 	by
the 	amendment, 	the ALJ 	refused 	to 	allow 	the 	amendment, 	finding
that 	the 	events 	complained 	of 	were 	beyond 	the 	statute 	of
limitations, 	and 	that 	this 	allegation 	was 	neither 	included 	in
the 	original 	charge 	nor 	sufficiently 	related 	to 	the 	original
charge 	of 	unilateral 	action. 	The ALJ, 	therefore, 	refused 	to
permit 	testimony 	related 	to 	this 	charge.
DISCUSSION
Charge Amendment
The Association 	excepts 	to 	the ALJ's 	refusal 	to 	allow 	the
amendment 	of 	the 	complaint 	to 	reflect 	its 	charge 	that 	the
District 	refused 	to 	allow 	an Association 	representative 	to 	be
9

present 	at 	the 	parent 	conference 	which 	led 	to 	disciplinary
action 	against Ms. 	Wilson. 	It 	argues 	that 	the 	charge
sufficiently 	raised 	the 	issue 	of 	denial 	of 	representation 	and
that 	there 	was 	no 	prejudice 	to 	the 	District, 	since 	it 	indicated
in 	its Answer 	that 	it 	was 	on 	notice 	that 	this 	issue 	was
included.
The ALJ 	found 	that 	the 	denial 	of 	representation 	complained
of 	occurred 	more 	than 	six 	months 	before 	the 	motion 	to 	amend,
and 	that 	it 	therefore 	fell 	outside 	the 	requirement 	in
Government 	Code 	section 	3541.5(a) 	that 	PERB 	"shall 	not 	issue 	a
complaint 	in 	respect 	of 	any 	charge 	based 	upon 	an 	alleged 	unfair
practice 	occurring 	more 	than 	six 	months 	prior 	to 	the 	filing 	of
a 	charge." 	Although 	a 	series 	of 	letters 	and 	memos 	attached 	to
the 	charge, 	one 	of 	which 	mentioned 	the 	District's 	failure 	to
permit 	representation 	at 	the 	parent 	conference 	(as 	well 	as
numerous 	other 	chargeable 	issues), 	there 	was 	no 	mention
whatsoever 	in 	the 	charge 	itself 	of 	that 	allegation.
As 	noted 	by 	the ALJ, 	PERB 	regulation 	32615 5 requires 	that
a 	charge 	must 	contain 	"a 	clear 	and 	concise 	statement 	of 	the
facts 	and 	conduct 	~lleged 	to 	constitute 	an 	unfair 	practice."
Here 	the 	alleged 	failure 	to 	permit 	representation 	was 	simply
not 	mentioned. 	We 	find, 	therefore, 	that 	this 	issue 	was 	not
SPERB 	regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001 	et 	seq.
10

raised
	by
	the
	initial
	charge, 	notwithstanding
	that
	some
	mention
of
	it
	was
	buried
	in
	the 	attachments.
The
Association
	cites
	several
	National
	Labor
	Relations
Board
	and
	PERB
	cases 	to 	the
	effect 	that
	uncharged
	violations
may
	be 	found 	where
	the 	issues
	have 	been
	fully
	litigated,
	but
acknowledges
	that 	is
	not 	the 	case 	here, 	since 	the
	ALJ
	would
	not
permit
	evidence
	of
	this
	charge
	to
	be
	offered.
The
	Association
	finally
	argues
	that,
	even
	if
	the 	charge 	did
not
	allege
	this
	violation,
	the
	fact 	that
	the
	District's
	formal
Answer
	included
	reference 	to
	the
	denial
	of
	representation
indicates 	that
	the
	District
	understood
	it
	to
	be
	at
	issue.
While
	it
	is
	clear
	from
	the
	District's
Answer
	that
	it
	was
covering
	all
	bases,
	we
	agree 	with 	the
ALJ
	that
	the
	District's
mention
	of
	this
	issue 	in
	its
Answer
	does
	not 	cure 	the
	fact 	that
this
	violation
	was
	never 	charged.
	Nor
	can
	we
	find 	the 	proposed
amendment
	sufficiently 	related
	to 	the
	original
	charge
	alleging
a
	unilateral
	change 	so
	as 	to 	find 	the
	amendment
	appropriate.
We,
	therefore,
	uphold
	the ALJ's
	refusal
	to 	allow
	amendment
	to
include
	an
	allegation 	that
	Wilson
	was
	denied
	representation
	in
a
	meeting 	leading 	to
	discipline
	and
	decline 	to
	remand
	the 	case
to 	the
ALJ
	for
	amendment 	and
	the 	taking 	of 	evidence
	on
	this
issue.
Unilateral
	Change
The
	Association 	claims
	that
	the
	District's
	action 	in
disciplining
	Wilson 	in
	March 	was 	a
	unilateral
	change 	in
	a
11

matter 	within 	scope. 	It 	also 	claims 	that 	neither 	the 	language
of 	the 	collective 	bargaining 	agreement, 	nor 	its 	conduct 	in
negotiations, 	demonstrated 	waiver 	of 	its 	right 	to 	negotiate
about 	discipline. 	Even 	if 	the 	management 	rights 	clause 	gave
the 	District 	the 	right 	to 	discipline 	previously, 	the
Association 	argues 	that 	the 	January 	1, 	1982 amendments 	to 	EERA
required 	new 	negotiations 	which 	the Association 	claims 	to 	have
requested 	by 	its 	February 	16 	letter 	to 	Giboney. 	It 	argues 	also
that 	there 	was 	no 	past 	practice 	justifying 	the 	suspension,
since 	past District 	practice 	concerned 	only 	reprimands.
The 	District 	claims 	that 	the 	contract 	explicitly 	gave 	the
District 	the 	right 	to 	discipline. 	Further, 	it 	contends 	that 	it
had 	a 	consistent 	past 	practice 	of 	taking 	necessary 	disciplinary
steps 	without 	protest 	from 	MTA 	and 	that 	this 	particular
incident 	does 	not 	constitute 	a 	change. 	Finally, 	it 	contends
that 	the 	new 	legislation 	was 	not 	intended 	to 	wipe 	out 	existing
contractual 	rights.
The 	Board 	has 	dealt 	previously 	with 	the 	issue 	of 	the
negotiability 	of 	discipline 	and, 	briefly, 	with 	section
3543.2(b). 	In Arvin 	Union 	School 	District 	(3/30/83) 	PERB
Decision No. 	300, 	the 	District 	asserted 	its 	inherent 	authority
to 	impose 	discipline 	short 	of 	dismissal 	for 	certificated
employees 	by 	virtue 	of 	Education 	Code 	section 	35160, 	which
gives 	the 	governing 	board 	of 	any 	district 	the 	right 	to 	carry 	on
its 	business 	by 	any 	means 	not 	in 	conflict 	with 	the 	purposes 	for
12

which
	school
	districts
	are
	established.
	PERB
	there
acknowledged
	the
	District's
	inherent
	right
	to
	discipline,
	and
then
	went
	on
	to 	find
	no
	conflict
	between
	the
	right
	of 	the
District
	to
	discipline
	and
	the
	scope
	of
	negotiations
	under
EERA,
	since
	a
	finding
	that 	disciplinary
	procedures
	are 	within
scope
	means
	only
	that
	the
	District
	has 	an
	obligation 	to
negotiate
	in
	good
	faith
	before
	making
	any
	changes
	in
disciplinary
	policy~
The
	Board
	in Arvin, 	supra,
	rejected
	the
	District's
	argument
that
	the
	enactment 	of
	section
	3543.2(b),
	adding
	discipline
short
	of 	dismissal 	to 	the
	scope
	of
	negotiations 	for 	the
	first
time, 	indicated 	the
	Legislature's 	intention
	to 	include
	a
subject 	that
	was
	not 	included
	previously.
	The 	Board
	disposed
of
	this
	argument,
	finding
	that:
The
	addition
	of
	a 	new
	enumerated
	subject 	tothe
	scope
	section 	doesn't
	mean
	such
	a
subject
	was
	not
	previously
	related
	to
	an
enumerated 	item.
	The
	change
	in 	the
	lawmeans
	that
	the
	negotiability
	of
	specific
procedures 	for
	disciplinary 	action 	arising
after
	January 	1,
	1982
	no
	longer
	need 	be
analyzed
	in
	terms 	of 	the
Anaheim
	balancing
test.	
~	
••
	(P.
	9.)
The 	Board
	reached
	a
	similar 	conclusion 	in
	Mammoth
	Unified
School
	District
	(12/29/83)
	PERB
	Decision
	No. 	371. 	The
	Board
there
	found
	that
	a
	disciplinary
	suspension
	was
	permitted
	by
section
	35160
	of 	the 	Education
	Code, 	and 	found 	as 	well
	that
	the
District
	had
	the 	right 	to
	impose
	the 	suspension 	based
	on
	the
language 	of 	the
	management
	rights 	clause
	which
	incorporated 	the
Education 	Code
	provision. 
13

We 	reach 	a 	similar 	conclusion 	here. 	We 	find 	that 	the
language 	of 	the 	contract's 	management 	rights 	clause 	giving 	the
District 	the 	right 	to 	"determine 	implement, 	.•• 	change, 	[and]
modify 	[discipline]" 	is 	sufficient 	to 	give 	the 	District
discretion 	in 	disciplinary 	matters 	sufficient 	to 	authorize 	the
action 	taken 	here. 	Because 	we 	find 	that 	the 	District's 	action
in 	disciplining 	Ms. 	Wilson 	was 	consistent 	with 	the 	past 	policy
established 	by 	the 	contract, 	we 	find 	that 	there was 	no
unilateral 	change 	in 	disciplinary 	policy. 	Grant 	Joint 	Union
High 	School 	District 	(2/26/82) 	PERB 	Decision No. 	196. 	Further,
we 	find 	the 	language 	of 	the 	contract 	sufficiently 	clear 	that 	we
need 	not 	go 	beyond 	it 	to 	examine 	the 	past 	practice 	of 	the
parties 	to 	interpret 	the 	meaning 	of 	the 	contract. 	Grossmont
Union High 	School District 	(5/26/83) 	PERB 	Decision No. 	313.
In 	so 	deciding, 	we 	reject 	the Association's 	suggestion 	that
the 	amendment 	to 	EERA 	effective 	January 	1, 	1982, 	which 	added
"causes 	and 	procedures 	for 	disciplinary 	action, 	other 	than
dismissal" 	to 	the 	scope 	of 	negotiations, 	somehow 	abrogated
existing 	contract 	provisions 	dealing 	with 	discipline 	short 	of
dismissal. 	As 	the 	Board 	noted 	in Arvin, 	supra, 	the 	new
language 	simply 	added 	as 	an 	enumerated 	subject 	one 	which 	had
already 	been 	determined 	to 	be 	a 	subject 	related 	to 	matters
within 	scope. 	It 	further 	made 	clear 	that 	parties 	could
negotiate 	causes 	and 	procedures 	for 	discipline 	short 	of
discharge, 	as 	they 	apparently 	did 	here, 	but, 	if 	they 	do 	not
14

reach
	mutual
	agreement,
	the
	specified
	provisions
	of 	the
Education
	Code 	would
	apply.
	It
	did
	not,
	however,
	void
	the
parties'
	negotiated
	agreements
	nor
	impose
	on
	school
	districts
the
	requirement
	that 	discipline
	must
	be
	negotiated 	before
imposed
	regardless 	of
	past
	practice.
ORDER
Based
	upon
	the 	foregoing
	findings 	of
	fact
	and
	conclusions
of
	law,
	and
	the
	entire
	record
	in
	this
	case,
	the 	charges
	in
	Case
No. 	LA-CE-1552
	are
	hereby
	DISMISSED.
Members
	Tovar
	and
	Jaeger 	joined 	in
	this
	Decision.
15