Victor Valley Union High School District (PERB 0487E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

VICTOR VALLEY TEACHERS

ASSOCIATION, CTA/NEA,
Charging Party, Case No. LA-CE-1652

V. PERB Decision No. 487

VICTOR VALLEY UNION HIGH
SCHOOL DISTRICT,

February 15, 1985

Respondent.

Appearances: Charles R. Gustafson, Attorney for the Victor
Valley Teachers Association, CTA/NEA; Atkinson, Andelson, Loya,
Ruud & Romo by Karen E. Gilyard, Attorney, for the Victor
Valley Union High School District.

Before Hesse, Chairperson; Jaeger and Burt, Members.
DECISION

HESSE, Chairperson: The Victor Valley Teachers
Association, CTA/NEA (Association) excepts to the dismissal of
its unfair practice charge filed against the Victor Valley
Union High School District (District). The Association
contends that the charge included an allegation that the
District violated section 3543.5(a) of the Educational
Employment Relations act? by discriminating against Jean
Echols in her salary status because of her Association
leadership role. It also contends that the administrative law

judge (ALJ) erroneously concluded that the District did not

leodified at Government Code section 3540 et seq.

violate 	section 	3543.S(c). 2
The 	ALJ 	found 	that 	the 	District 	neither 	breached 	the
parties' 	collective 	bargaining 	agreement 	nor 	changed 	its 	past
practice. 3 The 	ALJ 	also 	determined 	that 	the 	alleged
3543.S(a) 	violation 	had 	neither 	been 	included 	in 	the 	charge 	nor
fully 	litigated 	at 	the 	subsequent 	hearing. 	we 	agree.
ORDER
The 	Public 	Employment 	Relations 	Board 	has 	reviewed 	the
entire 	record, 	including 	the 	exceptions 	filed 	by 	the 	charging
party, 	and, 	finding 	no 	prejudicial 	error 	of 	fact 	or 	law, 	adopts
the 	attached 	proposed 	decision 	as 	its 	own 	and 	ORDERS 	that 	the
charge 	is 	DISMISSED 	without 	leave 	to 	amend.
Member 	Burt 	joined 	in 	this 	Decision.
Member 	Jaeger's 	concurrence 	begins 	on 	page 	3.
2No 	exceptions 	were 	filed 	to 	the 	dismissal 	of 	the 	other
allegations 	contained 	in 	the 	charge.
3Member 	Jaeger 	finds 	that 	the 	master's 	equivalency 	(MEQ)
committee 	is 	neither 	the 	agent 	of 	the 	District 	nor 	the
Association. 	As 	this 	issue 	was 	not 	presented 	by 	the 	parties,
we 	find 	no 	need 	to 	address 	it.
2

JAEGER, 	Member, 	concurring: 	Although 	I 	agree 	with 	the 	ALJ's
conclusion 	that 	the 	District neither breached 	the 	parties'
agreement nor 	changed 	its 	established practice, 	I 	find 	that 	for
still 	other 	reasons 	the 	charge 	fails 	to 	state 	facts 	constituting
a 	prima 	facie 	violation 	by 	the 	District.
The 	factual 	allegations 	contained 	in 	the 	charge 	are 	directed
against 	the 	actions 	of 	the 	master's 	equivalency 	implementation
committee. 	It 	is 	the 	committee's 	application of 	the 	contractual
standards 	and policies 	which 	the 	charge 	challenges. 	But, 	the
committee 	is 	a 	bilateral 	committee which 	is 	authorized 	by 	the
agreement 	to 	act on 	applications 	for 	master's 	equivalency 	status.
Although 	the 	District 	ultimately 	approves 	salary 	adjustments, 	it
is 	solely within 	the 	jurisdiction of 	the 	committee 	to 	decide
whether 	teachers 	qualify 	for 	such 	adjustments.
The 	committee 	is 	not 	the 	employer. 	It 	is 	neither 	the 	agent
of 	the 	employer 	nor 	agent 	of 	the 	exclusive 	representative 	for
the 	purpose 	of 	attributing 	liability 	to 	one 	or 	the 	other. 	It
appears 	that 	the 	Association 	recognizes 	this, 	for 	in 	its 	post-
hearing 	and 	appeals 	briefs 	it 	claims 	that 	the 	District exercised
control 	or 	influence 	over 	the 	committee's 	actions. 	However, 	the
ALJ 	found, 	and 	I 	believe 	correctly, 	that 	there was 	no 	evidence
to 	support 	this 	naked 	claim.
In 	sum, 	although 	the 	charge 	is 	against 	the 	District, 	the
Association's 	facts 	address 	the 	committee's 	alleged misinterpre-
tations 	of 	equivalency 	standards 	and 	departure 	from 	past 	practice.
The 	charge was 	properly 	dismissed.
3

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD aa
VICTOR VALLEY TEACHERS
ASSOCIATION/CTA/NEA,
Charging 	Party,
v.
VICTOR VALLEY UNION HIGH SCHOOL
DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case 	No. 	LA-CE-1652
PROPOSED 	DECISION
{9/5/84)
)
)
)
)
)
)
)
)
____________________ )
Appearances: 	Charles 	R. 	Gustafson, 	Attorney 	{California
Teachers 	Association) 	for 	the 	Charging 	Party: 	and 	Steven
Andelson, 	Attorney 	{Atkinson, 	Andelson, 	Loya, 	Ruud 	and 	Romo)
for 	the 	Respondent.
Before: 	w. 	Jean 	Thomas, 	Administrative 	Law 	Judge.
PROCEDURAL 	HISTORY
This 	matter 	comes 	before 	the 	Public 	Employment 	Relations
Board 	{hereafter 	PERB 	or 	Board) 	pursuant 	to 	a 	charge 	filed 	on
October 	14, 	1982, 	by 	the 	Victor 	Valley Teachers
Association/CTA/NEA 	{hereafter Association, 	WTA or 	Charging
Party) 	against 	Victor 	Valley Union High 	School 	District
{hereafter 	District 	or 	Respondent), 	alleging 	a 	violation 	of
section 	3543.5{a) 	of 	the 	Educational 	Employment 	Relations 	Act
{hereafter 	EERA or 	Act).1 	The 	substance 	of 	the 	original
charge 	was 	that 	the 	District 	allegedly acted 	in 	an 	arbitrary
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 et
seq. 	All 	references 	hereafter 	are 	to 	the Government 	Code
unless 	otherwise 	noted.

and 	capricious 	manner 	against 	two bargaining 	unit 	members 	by
denying 	them 	advancement 	on 	the 	1981-82 	salary schedule 	in
accord 	with 	a 	specific 	provision 	of 	the 	collective 	bargaining
agreement 	(hereafter 	CBA or 	Agreement).2
On 	December 	20, 	1982, 	Charging 	Party 	filed 	a 	first
amendment 	to 	the 	charge 	which 	changed 	two 	dates 	mentioned 	in
the 	statement 	of 	the 	charge. 	On December 	23, 	1982, 	the 	General
Counsel 	of 	the 	PERB 	issued a 	complaint 	in 	this 	matter.
The 	District 	filed 	an 	answer 	to 	the 	amended 	charge 	on
January 12, 	1983, 	denying 	the 	charge 	and 	any 	violation of 	the
Act, 	and 	asserting 	several 	affirmative 	defenses.
An 	informal 	settlement 	conference 	was 	held 	on
February 	18, 	1983, 	but 	the 	parties 	were 	unable 	to 	resolve 	their
dispute.
Following 	the 	informal 	settlement 	conference, 	the
Respondent 	filed 	motions 	to 	particularize 	the 	charge 	and 	to
amend 	the 	answer 	to 	add 	a 	fourth 	affirmative 	defense 	on
March 	7, 	1983,. 	Respondent 	also 	requested on 	that 	date 	that
the 	motion 	for 	particularization be 	held 	in 	abeyance 	pending
the 	outcome 	of 	further 	settlement 	discussions.
21n 	its 	post-hearing 	brief, 	Charging 	Party contends 	that
the 	District's 	conduct 	with 	respect 	to 	one 	of 	these 	employees,
Jean 	Echols, 	was 	in 	reprisal 	for 	her 	Association 	activities.
However, 	this 	issue 	was 	not 	specifically alleged 	in 	the 	charge
nor 	was 	it 	raised 	or 	litigated 	as 	a 	separate 	issue 	during 	the
hearing, 	therefore, 	it 	will 	not 	be 	addressed 	in 	this 	decision.
See 	San Ramon Valley Unified 	School 	District 	(8/9/82) 	PERB
Decision No. 	230.
2

On May 	6, 	1983, 	the 	Charging 	Party 	filed 	a 	motion to 	amend
complaint 	accompanied 	by a 	second 	amendment 	to 	the 	charge.
This 	amendment 	alleged 	that, 	in 	addition 	to 	a 	section 	3543.S(a)
violation, 	the 	District's 	denial 	of 	advancement 	on 	the 	1981-82
salary schedule 	also 	constituted a 	unilateral 	change 	in 	past
practice 	in 	violation 	of 	section 	3543.S(b) 	and 	(c). 	This
amendment 	stated 	that 	the 	District's 	policy of 	requiring 	that
the 	MEQ 	implementation 	committee 	approve 	all 	course 	work 	taken
before 	granting 	advancement 	on 	the 	salary schedule 	created a
requirement 	that 	did 	not 	exist 	prior 	to 	the 	negotiation 	of 	the
master 	equivalency provision 	in 	the 	1981-84 	CBA.
On May 	20, 	1983, 	a 	PERB 	administrative 	law 	judge 	issued 	an
order 	denying 	both 	the 	Charging 	Party's 	motion 	to 	amend
complaint 	and 	Respondent's 	request 	for 	leave 	to 	amend 	the
answer. 	This 	same 	order 	granted, 	in 	part, 	the 	Respondent's
motion 	to 	particularize 	the 	charge, 	and 	ordered 	the 	Respondent
to 	answer 	the 	particularized/amended 	charge when 	filed.
On May 	31, 	1983, 	in 	response 	to 	this 	order, 	the 	Charging
Party 	filed 	a 	third 	amendment 	to 	the 	charge 	which 	superseded
both 	earlier 	amendments. 	On June 	10, 	1983, 	the 	District 	filed
an 	answer 	to 	the 	third 	amended 	charge. 	This 	answer 	was
identical 	to 	the 	original 	answer 	filed 	January 	12, 	1983.
A formal 	hearing 	was 	conducted 	before 	the 	undersigned
administrative 	law 	judge 	on July 	14 and 	September 	15, 	1983.
3

Post-hearing 	briefs 	were 	filed 	and 	the 	case 	was 	submitted 	for
proposed 	decision.
FINDINGS 	OF 	FACT
A. 	Background
The 	District 	is 	a 	public 	school 	employer 	and VVTA 	is 	an
employee 	organization 	as 	defined 	in 	the 	Act. 	WTA 	is 	the
exclusive 	representative 	of 	the 	District's 	certificated
employee 	bargaining 	unit. 	The 	parties 	entered 	into 	a 	CBA which
had 	an 	effective 	period 	from 	October 	1, 	1981, 	through
September 	30, 	1984.
The 	District 	consists 	of 	seven 	school 	sites 	which 	provide
educational 	services 	for 	pupils 	in 	grades 	7 	through 	12. 	The
student 	enrollment 	is 	approximately 	7600 and 	there 	are
325 	employees 	in 	the 	certificated 	bargaining 	unit.
B. 	1980-81 	CBA Negotiations
During 	the 	1980-81 	contract 	negotiations 	between 	the
District 	and 	the 	Association, 	the 	Association 	proposed 	that 	the
requirement 	of 	a 	master's 	degree 	for 	advancement 	from
column 	III 	to 	column 	IV under 	the 	certificated 	salary schedule
be 	eliminated. 	The 	District 	rejected 	this 	proposal. 	After 	both
sides 	expressed 	a 	willingness 	to 	consider 	possible 	compromises
on 	this 	issue, 	it 	was 	removed 	from 	the 	negotiations 	arena 	for
further 	action 	by a 	separate 	committee.
On May 	29, 	1980, 	District 	Superintendent 	William 	Tarr, 	sent
a 	letter 	to 	the 	Association 	proposing 	that 	a 	committee 	composed
4

of 	three 	Association 	and 	three 	District 	representatives 	be
formed 	to 	develop 	language 	for 	a 	master's 	equivalency contract
provision 	for 	salary advancement 	purposes. 	Subsequently, 	a
master's 	equivalency 	{MEQ) 	committee 	was 	formed. 	The 	members
of 	this 	group, 	which 	will 	be 	referred 	to 	as 	the 	MEQ 	formulation
committee, 	consisted 	of 	Annie Munn, 	Joan 	Russell 	and 	Dick
Sauers, 	representatives 	for 	WTA, 	and William Tarr, 	Tony
Balsamo and 	John 	Kramar, 	representatives 	for 	the 	District.
Both Munn 	and 	Sauers 	possessed master's 	degrees.
c. 	The MEQ Formulation Committee
The MEQ 	formulation 	committee met 	from 	the 	fall 	of 	1980 to
March 	1981. 	In March 	1981 	the 	committee 	presented 	the
following 	language, 	which was 	signed 	by 	all 	six members, 	to 	the
1981-82 	WTA/District 	negotiating 	team.
ARTICLE XVI 	- 	MASTER'S 	EQUIVALENCY
DEFINITION:
The 	Master's 	Equivalency 	Program 	provides
for 	recognition of 	appropr.iate 	course work
that 	has 	led 	to 	excellence 	in 	performance
and 	accomplishment 	without 	a 	degree mandate.
REQUIREMENTS:
1. 	Tenure 	status 	in 	the 	District.
2. 	Course 	work 	meeting 	the 	following
requirements:
Forty-five 	(45) 	upper 	division 	or
graduate 	semester 	units 	beyond 	the 	date
the 	Bachelor 	Degree 	was 	conferred 	in
the 	following 	specific 	categories:
5

(a) 	Not 	less 	than 	thirty 	(30) 	semester
graduate 	units 	in 	an 	approved 	area
of 	concentration 	(e.g., 	Math,
English, 	Physical 	Education,
Counseling, 	etc.)
(b) 	No 	less 	than 	twenty 	(20) 	of 	the
semester 	units 	earned 	after
employment 	by 	the 	District 	and
must 	have 	the 	prior 	approval 	of
the 	Master's 	Equivalency Committee.
(c) 	A 3.0 	( 11 B11 ) 	average 	must 	be
maintained 	in 	all 	forty-five 	(45)
units 	of 	course work 	for 	the
Master's 	Equivalency.
3. 	At 	least 	three 	(3) 	consecutive 	years 	of
overall 	satisfactory 	("Meets
Requirement") 	or 	better 	evaluation
reports 	immediately prior 	to
application 	(upon 	request 	a 	permanent
employee 	will 	be 	evaluated 	each 	of
three 	(3) 	years).
4. 	Recommendation of 	Principal.
5. 	Completion 	of 	required 	procedures.
(a) 	Filing 	of 	application 	for 	Master's
Equivalency, 	prior 	to 	earning
units 	in 	2(b).
(b) 	Filing 	of 	request 	for 	granting
Master's 	Equivalency 	status 	by
June 	1 	of 	the 	preceding 	school
year 	in which 	the 	change 	is 	to be
effective.
COMMITTEE:
The 	Master's 	Equivalency Committee 	shall
have 	two 	(2) 	members 	appointed 	by 	the
Association, 	two 	(2) 	members 	appointed 	by
the 	Cabinet, 	and 	one 	(1) 	appointed 	by 	the
Superintendent. 	The 	Master's 	Equivalency
Committee 	shall 	approve 	all 	course 	work
under 	i tern 	2.
6

The 	Committee 	shall 	review 	and 	certify 	to
the 	Board 	of 	Trustees 	that 	all 	requirements
have 	been met 	by the 	applicant.
GRANDFATHER. CLAUSE:
For 	current 	employees 	who 	wish 	to 	apply 	for
Master's 	Equivalency 	column, 	they must 	meet
all 	requirements 	of 	the 	Master's 	Equivalency
except 	the 	following:
1. 	Prior 	approval 	of 	item 	2(b) 	will 	be
waived 	for 	courses 	started 	prior 	to
October 	1, 	1981.
2. 	The 	District 	will 	not 	require 	three 	(3)
consecutive 	years 	of 	evaluation but
will 	use 	all 	evaluations 	that 	were 	done
within 	the 	last 	three 	(3) 	years.
3. 	Item 	5(a) 	will 	be 	waived 	for 	all 	course
work 	started 	prior 	to October 	1, 	1981.
4. 	Grandfather 	clause 	will 	expire 	on
June 	30, 	1984.
Kramar, 	the 	District 	Assistant 	Superintendent 	for
Instructional 	Services, 	was 	present 	at 	all 	meetings 	of 	the 	MEQ
formulation 	committee. 	He 	testified 	that 	the 	MEQ 	program was
intended 	to 	financially 	recognize 	those 	teachers 	who 	had 	done
extensive 	graduate work 	without 	obtaining 	a 	master's 	degree.
There 	were 	approximately 	100 teachers 	in 	the 	unit 	in 	this
situation. 	In 	order 	to 	insure 	that 	there 	was 	a 	real
equivalency 	to 	a 	master's 	degree, 	the 	MEQ 	requirements 	were
patterned 	after 	an 	institutional 	master's 	degree 	program. 	In
this 	regard 	Kramar 	stated 	that 	the 	"area 	of 	concentration"
concept 	was 	"probably 	as 	important 	as 	anything 	else" 	in 	the
7

proposal. 	The 	committee's 	concern was 	that:
•.. 	our 	people be 	able 	to 	earn 	their
master's 	equivalency 	in 	the 	areas 	in which
they performed 	service 	for 	the 	District, 	so
we 	tried 	to make 	adjustments 	to what 	we
developed 	to 	fit 	those 	unique 	requirements
of 	our 	District, 	and 	yet 	still 	maintain 	a
credibility similar 	to 	a 	master's 	degree.
This 	concept 	had 	never 	been 	used 	in 	previous 	salary movement
provisions 	and, 	according 	to 	Kramar, 	"would 	apply 	specifically
to 	courses 	that 	[teachers] 	taught 	or 	are 	teaching 	in the
District, 	but 	you 	combine 	them 	together, 	and we 	call 	them 	an
area 	of 	concentration."
Munn, 	who 	has 	been 	a 	teacher 	with 	the 	District 	for 	eight
years, 	also 	attended 	all 	meetings 	of 	the 	MEQ 	formulation
committee. 	She 	testified 	that 	the 	formulation 	committee
struggled over 	defining 	what 	was 	meant 	by 	the 	"area 	of
concentration." 	Although 	the 	committee 	never 	arrived 	at 	a
specific 	definition 	of 	this 	term, 	it 	did 	reach a 	general
consensus 	about 	the 	kinds 	of 	teaching 	areas 	and 	courses 	that
were 	to be 	credited 	as 	falling 	within 	an 	individual 	teacher's
committee-designated area 	of 	concentration. 	Munn 	testified
that 	the 	committee's 	understanding, 	though 	imprecise, 	was 	as
follows:
••• 	[i]f 	the 	course 	fits 	what 	you were
responsible 	for, 	it 	would 	be 	allowed ••••
And we 	were 	specific only 	to 	the 	extent 	that
we 	mentioned 	certain 	courses 	under 	certain
areas 	of 	that 	nature ••.• 	[T]he
[implementation] 	committee 	was 	going 	to 	have
to make 	decisions 	based 	on 	logic •.•• 	But
that's 	the 	kind 	of 	decision, 	the 	area 	of
8

concentration ••• 	"can 	you 	use 	this 	in 	your
field 	and 	lead 	to 	excellence 	in 	your
performance" 	was 	always 	our 	[guideline], 	and
that 	definition 	[we] 	didn't 	come by 	very
easily. 	We 	struggled over 	that, 	coming 	up
with wording 	that 	"can 	you 	recognize 	this
course 	as 	a 	part 	of 	what 	you're 	teaching.
Is 	it 	a 	part 	of 	anything 	that 	you're
doing. 	• 	"
Kramar 	agreed 	in his 	testimony 	that 	the 	committee 	discussed
"area of 	concentration" 	in 	terms 	of 	examples. 	Munn 	and Kramar
both 	testified 	that 	it 	was 	understood 	that 	the 	implementation
committee 	would 	have 	the 	responsibility 	for 	deciding what 	an
individual 	teacher's 	area 	of 	concentration 	was 	to be.
The 	testimony of 	both of 	these 	witnesses 	regarding 	this
issue 	is 	credited. 	This 	observer 	found 	both witnesses 	to 	be
straightforward 	and 	believable. 	Their 	recall 	of 	the
deliberations 	and 	intent 	of 	the 	MEQ 	formulation 	committee 	with
respect 	to 	the meaning 	of 	specific 	provisions 	of 	Article 	XVIII
was 	fairly 	consistent.
Kramar 	also 	testified 	that 	the 	MEQ 	formulation 	committee
never 	discussed whether 	it 	should 	include waiver 	language 	other
than 	that 	specified 	in 	the 	"grandfather 	clause" 	of 	Article
XVIII. 	Consideration of 	waiving 	the 	item 	2(a) 	requirement
(30 	semester 	units 	in 	an 	approved 	area 	of 	concentraction) 	"was
never 	brought 	up." 	Munn 	testified 	that 	the 	committee 	never
discussed 	the 	idea 	of 	checking a 	teacher's 	previously earned
units 	for 	deciding 	on 	an 	approved 	area 	of 	concentration 	under
9

the 	"grandfather 	clause". 	She 	stated 	that 	since 	a 	teacher
needed 	30 units 	to 	get 	to Column 	III,3
[m]aybe we 	were 	assuming 	that 	30 	semester
graduate 	units 	had 	already been 	granted 	that
person 	or 	he 	would 	not 	be 	on 	that 	level."
However, 	on 	cross-examination 	she 	admitted 	that 	as 	the 	MEQ
language 	is 	written, 	the 	"grandfather 	clause" 	does 	not 	waive
the 	item 	2(a) 	requirement, 	so 	that 	a 	teacher 	still 	has 	to have
30 semester 	units 	of 	previously 	earned 	graduate 	course 	work
credited 	to 	an 	area 	of 	concentration 	approved 	by 	the MEQ
committee.
D. 	The 	1981-82 	CBA Negotiations
After 	the 	MEQ formulation 	committee 	presented 	its MEQ
language 	to 	the 	parties, 	the 	Association 	included 	the 	very 	same
language 	in 	its 	initial 	proposal 	for 	the 	1981-82 	contract
negotiations. 	The 	District 	also 	included 	this 	language 	in 	its
counter-proposal. 	However, 	as 	negotiations 	progressed, 	the
Association 	dropped 	the 	MEQ program 	from 	its 	last 	set 	of
proposals, 	and 	the 	District 	agreed 	to 	this 	deletion.
The 	tentative 	agreement 	between 	the 	parties 	was 	rejected 	by
the 	Association members 	in June 	1981. 	Subsequently, 	impasse
3prior 	to 	the 	MEQ 	program, 	a 	teacher 	needed 	a 	B.A. 	plus
30 graduate 	semester 	units 	to move 	to Column 	III. 	To 	advance
to 	column 	IV, 	an 	M.A. 	or 	a 	B.A. 	plus 	45 graduate 	level 	units
(which had 	to 	include 	an M.A. 	degree) 	was 	required. 	There 	was
no 	area 	of 	concentration 	requirement.
10

was 	declared 	by 	PERB. 	During mediation, 	the 	Association 	asked
that 	the 	MEQ program be 	put 	back 	into 	the 	negotiation 	package,
and 	the 	District 	agreed. 	The 	second 	tentative 	agreement, 	which
became 	the 	1981-84 	CBA, 	was 	ratified 	by 	the 	teachers 	and 	the
District 	in September 	1981. 	The 	MEQ 	program became Article
XVIII 	(Master's 	Equivalency) 	of 	the 	Agreement. 	The 	language 	of
this 	article 	is 	unchanged 	from 	that 	originally agreed 	to 	by 	the
MEQ 	formulation 	committee.
The 	Association 	disputed 	that 	part 	of 	the 	bargaining
history described above 	which 	purports 	that 	the 	parties 	agreed
to 	adopt 	verbatim 	into 	the 	CBA the 	MEQ 	language 	drafted 	by 	the
MEQ 	forumulation 	committee.
Jean 	Echols, 	a 	home 	economics 	teacher 	and 	the 	chief
negotiator 	for 	WTA during 	the 	1981-82 negotiations, 	testified
that 	"we 	were 	told 	[by 	the 	District] 	that 	this 	was 	the
District's 	proposal 	and 	it 	was 	not 	to 	be 	changed 	in 	any way 	if
it 	was 	going 	to 	be 	part 	of 	the 	contract." 	Veronica 	(Roni)
Mason, 	a 	teacher 	with 	the 	District 	for 	23 	years 	and 	also 	a
member 	of 	1981-82 	WTA negotiating 	team, 	testified 	that 	the
WTA negotiating 	team was 	told 	by Kramar 	and Michael 	Kilgore,
chief 	negotiator 	for 	the 	District, 	"that 	we 	must 	accept 	it 	(MEQ
program proposal) 	as 	is, 	it 	is 	not 	to 	be 	discussed."
Kramar 	testified 	that 	the 	District 	was 	"very willing" 	to
discuss 	the 	MEQ 	provision with 	the 	WTA 	"as 	far 	as 	what 	it
meant, 	but 	we 	felt 	that 	work had 	been 	done 	in 	committee, 	and
that 	this 	should 	go 	into the 	contract." 	He 	denied 	that 	the
11

District 	forced 	the 	Association 	to 	accept 	the 	MEQ 	program
language 	that 	was 	drafted 	and 	approved 	by 	the 	formulation
committee. 	He 	stated 	that 	both 	sides 	agreed 	initially that 	if
the 	formulation 	committee 	drafted 	a 	provision, 	it 	would 	go 	into
the 	contract 	as 	the 	committee 	presented 	it.
Mason 	refuted 	Kramar's 	testimony by 	stating 	that 	she 	was
unaware 	of 	any agreement 	reached 	between 	the 	District 	and 	the
Association on MEQ 	provisions 	previous 	to 	the 	1981-82
negotiations. 	Mason 	further 	testified 	that 	the 	District's
representatives 	told 	the 	VVTA negotiating 	team 	that 	if 	they
wanted 	to 	change 	any 	terms 	of 	the 	MEQ 	language, 	they would 	have
to 	wait 	until 	the 	next 	set 	of 	negotiations.
Echols 	testified 	that 	the Association 	"wished 	to 	speak"
with the 	District 	about 	possible 	changes 	in 	the 	MEQ 	provision,
but 	never 	did. 	She 	said 	WTA did 	discuss 	its 	concerns 	with 	the
MEQ 	formulation 	committee 	when 	the 	committee 	presented 	its
ideas 	to 	the Association 	negotiating 	committee. 	However, 	she
admitted 	that 	the 	Association 	never 	discussed 	potential
problems 	specific 	to 	the 	area 	of 	concentration 	item 	or 	the
grandfather 	clause 	with 	either 	the 	MEQ 	formulation 	committee 	or
the 	District.
Kramar 	testified 	that 	during 	negotiations:
••• 	[t]he 	question was 	asked 	one 	time, 	I
think by Jean 	Echols, 	"does 	this 	mean 	that
everyone 	with 	45 	units 	goes 	into 	this 	[MEQ
status]'?" 	and 	I 	was 	the 	one 	that 	responded
"no." 	You have 	to meet 	these 	other
qualifications 	that 	are 	listed here.
12

Even 	if 	all 	this 	testimony 	is 	credited 	as 	true, 	it 	does 	not
support 	a 	finding 	that 	the 	Association was 	coerced 	by 	the
District 	into 	accepting 	the 	provisions 	of 	the 	MEQ 	article
contained 	in the 	CBA.
E. 	The MEQ 	Implementation Committee
The MEQ 	implementation 	committee 	began 	meeting 	on
October 	12, 	1981. 	The 	original 	members 	were 	Roni 	Mason 	and
Edna Young, 	who 	were 	teachers 	appointed 	by 	the 	VVTA: 	Tony
Balsamo 	and 	Robert 	Egbert 	-- 	who 	were 	principals 	appointed 	by
the 	District 	Cabinet:4 and 	John 	Kramar--who 	was 	appointed 	by
the 	Superintendent. 	Roni 	Mason was 	the 	first 	chairperson 	of
the 	committee. 	When Mason 	resigned 	in May 	1982, 	she 	was
replaced 	by 	Barbara 	Schulthess, 	another 	teacher. 	Mason 	had
achieved MEQ 	status 	in 1975 	and Young had 	a 	master's 	degree.
From 	the 	beginning 	of 	its 	activities, 	the 	implementation
committee 	applied 	the 	item 	2(a) 	requirement 	of 	article XVIII 	to
all 	applicants 	for 	MEQ 	status. 	This 	included 	those 	teachers
who 	applied 	under 	the 	grandfather 	clause 	of 	that 	article. 	The
record 	reveals 	that 	there 	was 	no 	dispute 	among 	committee
members 	about 	this 	practice.
4The 	Cabinet 	includes 	all 	the 	principals, 	the 	assistant
superintendents, 	the 	superintendent 	and 	the 	director 	of
employer-employee 	relations.
13

However, 	there 	is 	evidence 	of 	disagreement 	among 	committee
members 	about 	how 	the 	concept 	"area 	of 	concentration" 	should 	be
applied. 	Mason 	felt 	"that 	if 	the 	teacher 	used 	the 	course 	in
the 	class 	where 	they were 	actuallly teaching 	this 	and had 	the
materials 	that 	were 	created 	in 	the 	class 	that 	they 	took, 	that
this 	should be 	included 	in 	their 	area 	of
concentration. 	It 	Kramar 	interpreted 	the 	phrase 	to
include 	only courses 	taken 	in 	a 	subject 	area 	which 	the 	teacher
teaches 	or 	has 	taught 	in 	the 	District, 	but 	not 	courses 	which
are 	general 	in 	nature, 	even 	though 	work 	actually done 	by 	the
teacher 	in 	the 	course 	was 	related 	to 	the 	subject 	he 	or 	she
taught. 	In 	the 	record 	of 	votes 	taken 	by 	the 	committee
approving 	areas 	of 	concentration 	for 	the 	applicants, 	the 	latter
interpretation was 	consistently 	followed 	by a 	majority of 	the
members.
The MEQ 	implementation 	committee's 	minutes 	of
October 	26, 	1981, 	state 	that 	the 	language 	of 	Article 	XVIII 	was
to be 	discussed 	at 	a 	meeting 	between VVTA and 	the 	committee.
On November 	23, 	1981, 	the 	committee 	decided 	to hold 	all
decisions 	on MEQ 	status 	until 	that 	meeting. 	The 	proposed
meeting was 	to 	focus 	on 	the 	committee's 	interpretation 	of 	items
2{a) 	and 	2{c) 	of 	the 	"requirement" 	section of 	Article XVIII.
Sometime 	between November 	23 	and 	November 	30, 	the meeting 	was
held.
14

Mason 	attended 	the meeting 	and 	recalls 	that 	no 	agreement
was 	reached 	as 	to how 	those 	two 	provisions 	were 	to 	be
interpreted. 	Her 	recollection was 	that 	"everything was 	very
super-general, 	and 	that 	most 	of 	the 	interpretation 	came 	from
the 	District ••.• " 	She 	further 	recalls 	that 	the 	"biggest
issue" 	was 	the 	grandfather 	clause, 	specifically the 	fact 	that
the 	committee 	was 	not 	crediting 	courses 	to 	a 	teacher's 	area 	of
concentration 	"that 	people had 	taken 	and 	were 	using 	in 	their
classroom •• 	"
Kramar's 	recall 	of 	the 	meeting differs 	from 	Mason's. 	It
was 	his 	impression 	that 	Chuck 	Gherke, 	the 	then-President 	of
VVTA, 	did most 	of 	the 	talking 	on behalf 	of 	the 	Association.
Although 	the 	parties 	apparently 	attach 	some 	significance 	to
the 	occurrence 	of 	the 	November 	1981 	meeting, 	it 	is 	concluded
that 	the 	outcome 	of 	this 	meeting, 	irrespective 	of 	which
witness' 	version 	is 	credited had 	no 	effect 	on 	future 	committee
interpretations 	or 	applications 	of 	article 	XVIII.
At 	the 	time 	of 	the 	hearing 	17 	teachers 	had 	applied 	for 	MEQ
status, 	10 applications 	had 	been 	approved 	and 	2 had 	not 	yet
been 	considered.
This 	charge 	alleges 	improper 	interpretation and 	application
of 	relevant 	provisions 	of Article 	XVIII 	of 	the 	CBA,
specifically 	in 	connection with 	the 	MEQ 	applications 	filed 	by
six members 	of 	the 	bargaining 	unit. 	All 	six 	filed 	under 	the
15

provisions 	of 	the 	grandfather 	clause. 	The 	factual 	record
concerning 	these 	individuals 	is 	set 	forth 	below.
1. 	Jean Echols
Jean 	Echols 	applied 	for 	MEQ 	status 	on May 	29, 	1981.
Sometime 	after 	November 	16, 	1981, 	she 	was 	notified 	that 	there
was 	a 	problem with her 	application. 	She 	met 	with 	the 	committee
on November 	23 	to 	present 	supportive 	documents 	for 	the 	course
work 	credit 	that 	she 	was 	seeking. 	During 	the 	1981-82 	school
year, 	she met 	with 	the 	committee 	several 	more 	times, 	presenting
additional 	evidence. 	Sometime 	in March 	1982 	Echols 	asked 	the
WTA grievance 	committee 	"to handle 	the 	problem." 	The 	function
of 	the 	grievance 	committee 	is 	to handle 	grievances 	for 	teachers
who 	feel 	that 	they 	are 	being 	treated 	unfairly 	by the 	District.\
The 	1981-84 	CBA contained 	no 	grievance 	procedure. 	There 	is 	no
evidence 	about 	whether 	the 	District 	had 	a 	non-negotiated
grievance 	policy or 	procedure.
The 	grievance 	committee 	met 	with 	the 	MEQ 	implementation
committee on April 	21, 	1982. 	At 	this 	meeting 	no 	one
specifically stated 	that 	a 	grievance 	would 	be 	filed 	concerning
the 	actions 	of 	the 	MEQ 	committee. 	The meeting 	ended 	without
anything 	definite 	being decided or 	agreed 	to. 	The 	only 	further
contact 	between the 	grievance 	committee 	and 	the 	MEQ 	committee
on 	this 	matter 	was 	an 	exchange 	of 	letters 	between Arlene
Roberts, 	chairperson 	of 	the 	grievance 	committee, 	and Mason, 	who
was 	the MEQ 	implementation 	committee 	chairperson 	at 	the 	time.
16

Roberts' 	letter 	of 	April 	29, 	1982, 	asked 	for 	written 	guidelines
from 	the 	MEQ 	committee 	to 	determine 	what 	qualifies 	a 	person 	for
MEQ 	designation. 	The 	letter 	concludes: 	"We 	will 	feel
compelled 	to 	take 	further 	action 	if 	we 	have 	not 	received 	these
guidelines 	by May 	14, 	1982."
Mason's 	reply, 	dated May 	13, 	1982, 	stated 	that 	the 	MEO
committee 	did 	not 	have 	the 	time 	to 	put 	out 	special 	guidelines.
However, 	she 	included a 	copy of 	all 	the 	committee's 	minutes,
with 	items 	marked which 	denoted 	guidelines. 	Mason 	added:
You will 	notice 	that 	I 	do 	not 	agree 	with 	the
majorities 	[sic] 	interpretation of 	what
courses 	should or 	should 	not 	be 	counted 	in
the 	area 	of 	concentration.
Following 	this 	exchange 	of 	correspondence, 	the 	grievance
committee 	took 	no 	additional 	action 	concerning 	Echols'
problem.
The 	dispute 	between Echols 	and 	the MEQ 	implementation
committee 	has 	centered on 	two 	courses 	that 	she 	took 	at 	UCLA 	in
the 	early 1970's--consumer 	education 	and home 	economics. 	The
committee 	has 	not 	credited 	these 	to 	her 	area 	of 	concentration.
However, 	the 	courses 	are 	credited 	toward 	the 	general
requirement 	of 	having 	45 	units 	upper 	division 	or 	graduate
semester 	units 	beyond 	the 	bachelor 	degree. 	This 	was 	done
because 	the 	majority of 	the 	committee 	has 	felt 	that 	the 	courses
were 	general 	vocational 	education 	courses 	and 	not 	specific 	to
Echols' 	approved 	area 	of 	concentration. 	The 	committee has
17

determined 	her 	area 	of 	concentration to 	be 	home 	economics.
Echols 	believes 	that 	since 	she 	developed materials 	for 	the 	two
disputed 	courses 	which 	she 	now 	uses 	in 	the 	subject 	that 	she
teaches 	for 	the 	District, 	the 	UCLA courses 	should 	be 	credited
to 	her 	area 	of 	concentration. 	The 	two 	courses 	total 	12
graduate 	semester 	units. 	Without 	them 	she 	was 	6 	units 	short
of 	the 	30 	units 	required 	under 	item 	2(a). 	At 	the 	time 	of 	the
hearing 	this 	matter 	remained 	unresolved.
2. 	Barbara 	Schulthess
Schulthess 	applied 	for 	MEQ 	status 	for 	the 	1981~82 	school
year. 	The 	commmittee 	would 	not 	credit 	a 	communications 	course
to her 	approved 	area 	of 	concentration, 	which 	left her 	short 	of
the 	30 	unit 	requirement. 	She 	subsequently took 	more 	courses,
and 	received her 	MEQ 	designation 	during 	the 	1982-83 	school 	year.
3. 	Joan 	Russell
Russell 	also 	applied 	for 	MEQ 	status 	for 	the 	1981~82 	school
year. 	The 	committee 	did 	not 	credit 	several 	general 	education
courses 	that 	she 	had 	taken 	to her 	approved 	area 	of
concentration, 	leaving her 	short 	of 	the 	30 	unit 	minimum. 	At
the 	time of 	the 	hearing, 	she 	had 	not 	been 	granted MEQ 	status.
4. 	Nancy Wygant
Wygant 	was 	initially denied MEQ 	status 	for 	missing 	the
June 	1 	application 	date 	set 	forth 	in 	item 	S(b) 	of 	the
requirement 	section. 	Subsequently, 	it 	was 	determined by 	the
18

committee 	that 	she 	had met 	the 	deadline, 	and 	she 	was 	granted
retroactive 	MEQ 	status 	for 	the 	1981-82 	school 	year.
5. 	John 	Powell
Powell 	sent 	a 	letter 	to 	the 	committee 	in 	the 	fall 	of 	1981
requesting 	MEQ 	status. 	The 	committee 	sent 	him 	an 	application,
which he 	never 	returned. 	Echols 	testified 	that 	she 	later
talked 	to 	Powell 	about 	it 	and he 	told 	her 	that 	"when he 	had
gone 	to 	see 	about 	it, 	it 	appeared 	to be 	more 	difficult 	than he
was 	prepared 	to 	engage 	in 	and 	since 	he 	was 	close 	to 	retirement,
he 	didn't 	see 	any 	reason 	in 	fighting." 	At 	the 	time 	of 	the
hearing, 	no 	further 	MEQ 	action 	had 	been 	taken 	concerning 	Powell.
6. 	Janet 	Bradley
Bradley applied 	for 	MEQ 	status 	for 	the 	1982-83 	school
year. 	She 	did 	not 	meet 	the 	30 	unit 	minimum 	requirement 	of 	item
2(a) 	after 	the 	committee 	refused 	to 	credit 	some 	of 	her 	general
education 	course 	work 	to 	her 	approved 	area 	of 	concentration.
At 	the 	time 	of 	the 	hearing, 	she 	did 	not 	have 	MEQ 	designation.
F. 	District's 	Previous 	Policy/Practice 	re 	Salary
Column Advancement
In 	1956 the 	District 	adopted 	a 	policy 	for 	certificated
personnel 	salary 	step advancement. 	Over 	the 	years 	that 	policy
was 	revised 	several 	times. 	At 	the 	time 	of 	the 	hearing, 	the
most 	recent 	revision was 	October 	13, 	1981. 	This 	policy 	is
known 	as 	District 	board 	policy 4912 	-- 	"Certificated 	Personnel
Professional Growth 	and 	Classification Requirements."
19

This 	policy has 	two 	basic 	sections. 	Section one, 	which 	is
entitled 	"Professional 	Growth," 	covers 	vertical 	movement 	within
a 	column. 	Such movement 	is 	based on 	completion 	of 	a 	specific -
number 	of 	units 	each 	four 	years. 	There 	are 	specific 	areas 	of
activity of 	professional 	growth 	from 	which 	these 	units may 	be
earned 	and 	submitted. 	This 	section 	also 	provides 	for 	a
professional 	growth 	committee which 	is 	appointed 	by the
Superintendent 	to 	review 	applications 	for 	step advancement,
determine 	whether 	the 	professional 	growth 	requirements 	have
been met, 	and make 	recommendations 	for 	salary advancement 	to
the 	Superintendent.
Section 	two which 	is 	entitled 	"Classification
Requirements," 	deals 	with horizontal 	salary movement 	from
column 	to 	column. 	Prior 	to 	the 	1981 	revisions, 	this 	section
stated 	as 	follows:
Classification Requirements
1. 	Only 	units 	from 	accredited 	colleges 	are
accepted 	for 	classification 	advances.
(Accredited Colleges 	are 	those 	accepted
by 	the 	State Department 	of 	Education
for 	credential 	purposes).
2. 	Not 	more 	than 	6 	units 	in 	lower 	division
units 	will 	be 	accepted. 	Lower 	division
units 	are 	subject 	to 	approval 	by the
office 	of 	the 	Superintendent. 	Only
courses 	taken 	after 	July 	1, 	1962 will
be 	considered. 	New 	teachers 	will 	not
be 	given 	credit 	for 	lower 	division 	work
taken 	before 	acceptance 	of 	contract.
3. 	All 	other 	courses 	must 	be 	upper
division 	or 	graduate 	units.
20

4. 	All 	courses 	must 	have 	been 	completed
subsequent 	to 	the 	actual 	receipt 	of 	the
degree 	involved.
5. 	No 	paid 	leave 	of 	absence 	for
classification 	change 	shall 	be 	used 	to
obtain 	units 	for 	classification 	change
except 	Sabbatical Leave 	as 	provided 	by
District 	Policy.
This 	part 	of 	the 	policy did 	not 	apply 	to 	salary movement
from 	column 	III 	to 	column 	IV unless 	a 	teacher 	first 	earned 	a
master's 	degree 	from 	an 	accredited 	college 	(see 	fn. 	3, 	supra}.
Prior 	to 	1975 	there 	were 	six 	salary movement 	classes. 	To
get 	to Class 	IV, 	a 	teacher 	needed 	45 graduate 	units. 	In 	1975
the 	salary schedule 	was 	collapsed 	to 	five 	classes, 	and a
master's 	degree 	requirement 	was 	added 	for 	movement 	to Class
IV. 	By posted 	bulletin 	in June 	1975, 	the 	District 	granted
teachers 	a 	one-time opportunity to move 	to Class 	IV 	without 	a
master's 	if 	they had 	completed'45 	units 	by 	September 1975.
Mason 	advanced 	to 	Class 	IV by 	satisfying 	this 	requirement.
There was 	no 	examination 	of 	her 	units 	for 	area 	of 	concentration
by 	the 	District 	at 	the 	time 	of her 	column 	advancement 	because
that 	particular 	criteria 	did 	not 	exist.
Other 	than 	this 	one-time 	opportunity that 	was 	offered 	to
the 	teachers 	in 1975, 	a 	master's 	degree 	was 	an 	absolute
requirement 	for 	movement 	from 	column 	III 	to 	IV. 	Under 	board
policy 	4912 	there 	was 	no 	area 	of 	concentration 	nor 	grade
average 	requirement.
After 	the 	1981-84 	CBA went 	into 	effect 	October 	1, 	1981,
21

board 	policy 	4912 	was 	revised on October 	13, 	1981. 	The
revision omitted 	item 	1 	of 	"Professional 	Growth," 	which 	read 	as
follows:
One 	full 	year 	of 	actual 	full-time 	employment
is 	required 	(no 	units 	of 	credit) 	before 	the
individual 	is 	eligible 	for 	step advancement.
Note: 	One 	full 	year 	is 	75% 	or 	more 	of 	the
days 	required 	to be 	taught.
Item 1 	of 	"Classification Requirements" 	(supra, 	at 	p. 	20) 	was
also 	omitted. 	The 	1981 	revisions 	were 	made 	when 	both of 	the
above-cited 	items 	were 	incorporated 	in 	concept 	into 	the 	MEQ
program 	requirements. 	No 	other 	changes 	were 	made 	in 	the
policy. 	As 	of 	the 	date 	of 	the 	hearing, 	this 	policy, 	as 	amended
in 1981, 	remained 	in 	full 	force 	and 	effect.
ISSUE
W}lether 	the 	Respondent 	has 	unilaterally adopted 	and
implemented 	a 	policy concerning 	criteria 	for 	determining MEQ
status 	and 	salary schedule 	placement 	which 	is 	based on 	an
interpretation of 	relevant 	contract 	provisions 	that 	is 	contrary
to 	that 	agreed 	to 	by the 	parties 	and 	thereby has 	violated
sections 	3543.S(a), 	(b), 	and 	(c) 	of 	the 	EERA?
POSITIONS 	OF THE PARTIES
A. 	Charging 	Party
The 	Charging 	Party argues 	that 	through 	the 	District's
improper 	domination of 	the 	MEQ 	formulation 	committee, 	which was
established 	pursuant 	to 	article XVIII 	of 	the 	CBA, 	the 	District
22

has 	implemented a 	policy based on 	its 	interpretation of 	the
contract 	that 	is 	contrary to 	the 	agreement 	that 	the 	parties 	had
about 	the 	way that 	the 	program 	was 	to operate. 	The 	result 	of
this 	policy 	is 	that 	several 	bargaining unit 	members 	have 	been
denied 	their 	proper 	placement 	on 	the 	salary schedule. 	Charging
Party further 	asserts 	that 	the 	implementation of 	this 	policy,
which 	is 	based on 	arbitrary 	standards 	set 	by 	the 	District,
constituted an 	unlawful 	unilateral 	change 	which 	did 	not 	become
apparent 	to 	the 	WTA 	until 	sometime 	in 	late 	April 	1982. 	In 	its
brief, 	the 	Charging 	Party also 	argues 	that 	the 	implementation
of 	this 	policy represents 	a 	change 	from 	the 	District's 	past
practice 	for 	granting 	salary 	increments.
This 	case 	basically 	centers 	around 	those 	teachers 	who
applied 	for 	MEQ 	status 	under 	the 	"grandfather 	clause" 	of
Article XVIII 	of 	the 	CBA. 	The 	Charging 	Party maintains 	that
the 	District, 	through 	the 	actions 	of 	the 	MEQ 	implementation
committee, 	has 	misinterpreted 	and 	misapplied 	the waiver
language 	of 	this 	clause 	as 	it 	applies 	to 	the 	terms 	"area of
concentration" 	and 	"prior 	approval" 	contained 	in 	items 	2(a) 	and
2(b) 	of 	the 	"requirements" 	section of 	this 	provision.
The Association 	contends 	that 	the 	parties 	always 	intended
that 	those 	unit 	members 	already employed by 	the 	District 	at 	the
time 	that 	Article 	XVIII 	went 	into 	effect, 	who 	had sufficient
course 	units 	on 	file 	with 	the 	District, 	were 	to be
23

"grandfathered" 	in 	by granting 	them MEQ 	status 	and 	proper
salary schedule 	placement 	without 	their having 	to be 	subjected
to 	all 	the 	MEQ 	program 	requirements.
B. 	Respondent
The 	Respondent 	asserts 	that 	this 	controversy 	is 	one 	of
strict 	contract 	interpretation. 	It 	contends 	that 	the 	MEQ
provisions 	have 	been 	implemented 	consistent 	with 	the 	clear 	and
express 	terms 	of 	the 	CBA. 	Under 	the 	"grandfather 	clause" 	the
parties 	intended 	that 	only 	three 	specific MEQ 	requirements 	were
to 	be waived 	and 	that 	those 	areas 	are 	clearly spelled out 	in
the 	language 	of 	this 	clause. 	The 	absence 	of 	any other 	waivers
is 	a 	clear 	indication of 	the 	parties' 	intent 	not 	to waive 	any
of 	the 	other 	MEQ 	requirements.
The 	District 	further 	argues 	that, 	even 	assuming 	that 	the
language 	of 	the 	"grandfather 	clause" 	is 	ambiguous, 	the
committee has 	implemented the 	provisions 	consistent 	with 	the
intent 	of 	the 	MEQ 	formulation 	committee. 	Furthermore, 	as
provided 	for 	by 	the 	contract, 	the 	MEQ 	committee, 	not 	the
District, 	has 	been 	responsible 	for 	implementing 	and
administering 	the 	MEQ 	program 	Thus, 	the 	committee, 	not 	the
District, 	determines 	who 	is 	eligible 	for 	MEO 	status.
Finally, 	the 	District 	asserts 	that 	the 	Charging 	Party has
failed 	to 	show that 	since 	the 	start 	of 	the 	MEQ 	program a 	change
in policy 	regarding 	salary schedule 	placement 	has 	occurred 	or
that 	the 	application of 	the 	MEQ 	criteria 	has 	been 	inconsistent.
24

,
CONCLUSIONS 	OF LAW
Section 	3541.5(b) 	states:
The 	Board 	shall 	not 	have 	authority 	to
enforce 	any agreements 	between the 	parties,
and 	shall 	not 	issue 	a 	complaint 	on 	any
charge 	based on 	alleged 	violation of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
In Grant 	Joint 	Union High 	School 	District 	(2/26/82) 	PERB
Decision No. 	196, 	the 	Board 	concluded 	that 	the 	above 	statutory
provision 	does 	not 	divest 	PERB of 	jurisdiction to 	resolve 	an
unfair 	practice 	charge 	simply because 	the 	employer's 	conduct
also 	constitutes 	the 	breach 	of 	an 	existing 	collective
agreement. 	Rather, 	the 	PERB concluded 	that 	section 	3541.5(b)
grants 	PERB 	the 	authority to 	resolve 	an 	unfair 	practice 	charge,
even 	if 	it 	must 	interpret 	the 	terms 	of 	a 	collective 	agreement
to 	do 	so. 	Grant 	Joint 	Union High 	School 	District, 	supra 	at
pp. 	7-8.
In Grant, 	the 	Board went 	on 	to 	state:
The Act 	is 	designed 	to 	foster 	the
negotiation 	process. 	Such 	a 	policy 	is
undermined when one 	party to 	an 	agreement
changes 	or 	modifies 	its 	terms 	without 	the
consent 	of 	the 	other 	party. 	PERB 	is
concerned, 	therefore, 	with a 	unilateral
change 	in 	established 	policy which
represents 	a 	conscious 	or 	apparent 	reversal
of 	a 	previous 	understanding whether 	the
latter 	is 	embodied 	in a 	contract 	or 	evident
from 	the 	parties' 	past 	practice. 	Grant
Joint 	Union High 	School 	District, 	supra 	at
p. 	8, 	citing Anaconda Aluminum Co. 	(1966)
160 	NLRB 	35 	[62 	LRRM 	1370], 	Perry Rubber 	Co.
(1961) 	133 	NLRB 	275 	[48 LRRM 	1630].
25

The 	Board, 	however, 	cautioned 	in Grant 	that 	not 	every
breach 	of 	contract 	also 	violates 	the 	Act.
Such a 	breach must 	amount 	to 	a 	change 	of
policy, 	not 	merely a 	default 	in a
contractual 	obligation, 	before 	it
constitutes 	a 	violation of 	the 	duty 	to
bargain. 	This 	distinction 	is 	crucial. 	A
change 	of 	policy has, 	by 	definition, 	a
generalized 	effect 	or 	continuing 	impact 	upon
the 	terms 	and 	conditions 	of 	employment 	of
bargaining 	unit members. 	On 	the 	other 	hand
when 	an 	employer 	unilaterally breaches 	an
agreement 	without 	instituting 	a 	new 	policy
of 	general 	application or 	continuing 	effect,
its 	conduct, 	though 	remedial 	through 	the
courts 	or 	arbitration, 	does 	not 	violate 	the
Act. 	The 	evil 	of 	the 	employer's 	conduct,
therefore, 	is 	not 	the 	breaching of 	the
contract 	per 	se, 	but 	the 	altering 	of 	an
established 	policy mutually agreed 	upon by
the 	parties 	during 	the 	negotiation 	process.
Grant 	Joint 	Union High 	School, 	supra 	at
p. 	9, 	citing Walnut 	Valley Unified 	School
District 	(3/30/81) 	PERB 	Decision No. 	160:
C & 	S 	Industries 	(1966) 	158 	NLRB 	454 	[62
LRRM 	1043].
Thus, 	for 	a 	charging 	party to 	prove 	a 	violation of 	section
3543.5(c) 5 when 	an 	alleged 	breach 	of 	contract 	is 	also 	claimed
5section 	3543.5 provides:
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
26

to 	be 	an 	unlawful 	unilateral 	change, 	it 	must 	establish the
following: 	(1) 	that 	the 	Respondent 	breached or 	otherwise
altered the 	parties' 	written 	agreement 	or 	its 	own 	established
past practice 	with 	regard 	to 	the 	matter 	complained of; 	(2) 	that
the 	breach 	or 	alteration 	amounted 	to 	a 	change 	of 	policy, 	that
is, 	it 	had 	a 	generalized 	effect 	of 	continuing 	impact 	upon 	the
terms 	and 	conditions 	of 	employment 	of 	bargaining 	unit members;
and 	(3) 	that 	the 	change 	concerned a 	matter 	within 	the 	scope 	of
representation.
Thus, 	under 	the 	first 	prong 	of 	the 	Grant 	test, 	VVTA must
prove 	that 	the 	District 	has 	either 	violated 	or 	altered 	the 	MEQ
provision of 	the 	CBA or 	its 	own 	established 	past 	practice
regarding 	MEQ 	designation 	for 	salary 	placement 	purposes.
For 	the 	reasons 	discussed 	below, 	it 	is 	found 	that 	the
Association 	has 	failed 	to 	show 	that 	the 	District, 	through
either 	its 	own 	conduct 	or 	the 	actions 	of 	the 	MEQ 	implementation
committee, 	has 	breached 	or 	otherwise 	altered 	any of 	the 	MEQ
contract 	provisions. 	Additionally, 	it 	is 	found 	that 	VVTA has
failed 	to 	establish the 	existence, 	prior 	to October 	1981 	of 	a
District 	policy or 	practice 	concerning MEQ 	designation 	and
salary 	placement.
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with an 	exclusive 	representative.
27

First, 	the 	language 	of Article 	XVIII 	sets 	forth 	very
specific 	requirements 	for 	MEQ 	status. 	The 	"committee" 	section
of 	that 	article 	states 	that 	"the Master's 	Equivalency Committee
shall 	approve 	all 	course 	work 	under 	item 	2." 	Item 	2 of 	the
"requirements" 	section 	sets 	forth 	the 	course work 	requirements
of 	the 	MEQ program. 	The 	language 	of 	this 	item 	lists 	the 	total
number 	of 	course 	units 	required 	and 	the 	bases 	upon which 	the
units 	will 	be 	credited 	for 	the 	MEQ 	program.
It 	is 	clear 	in Article 	XVIII 	that 	the 	WTA and 	the 	District
have 	granted a 	fair 	amount 	of 	discretion 	to 	the 	MEQ
implementation 	committee 	in 	the 	processing 	of 	MEQ
applications. 	For 	example, 	the 	committee has 	the 	authority 	for
deciding what 	an 	applicant's 	area 	of 	concentration 	will 	be 	and
determining what 	course 	work, 	past 	as 	well 	as 	future, 	will 	be
credited to meet 	the 	requirements 	of 	the 	MEQ 	program. 	That
same 	section 	further 	states 	that 	"the 	committee 	shall 	review
and 	certify to 	the 	Board 	of 	Trustees 	that 	all 	requirements 	have
been met 	by 	the 	applicant." 	Even 	though 	the 	District 	board has
the 	final 	responsibility 	and authority for 	approving 	an
employee's 	placement 	on 	the 	salary schedule 	once 	the 	MEQ
applicant 	is 	certified, 	the 	initial 	determination about 	an
applicant's 	eligibility for 	MEQ 	status 	rests 	solely with 	the
MEQ 	implementation 	committee.
Although 	the 	Association 	alleges 	that 	the 	committee has
been 	improperly dominated 	or 	controlled 	by 	the 	District 	in 	its
28

application of 	the 	MEQ 	criteria, 	the 	evidence 	about 	the
committee 	deliberations 	do 	not 	support 	this 	claim.
Of 	the 	17 	teachers 	who 	have 	applied 	for 	MEQ 	status 	since
the 	program 	started, 	10 have 	been 	granted 	and 	there 	is 	no 	issue
about 	them 	in 	this 	case. 	At 	the 	time 	of 	the 	hearing,
processing of 	two 	applications 	had 	not 	yet 	commenced. 	The
remaining 	five 	applications 	are 	those 	of 	the 	persons 	who
applied 	under 	the 	grandfather 	clause 	and 	form 	the 	basis 	for
this 	challenge.
One 	person, 	John 	Powell, 	requested an 	application, 	and
would 	have 	been 	eligible 	to 	apply 	under 	the 	grandfather
section, 	but he 	never 	filed 	the 	application with 	the
committee. 	Therefore, 	his 	case 	is moot 	with 	respect 	to 	this
charge.
Nancy Wygant 	also 	applied 	under 	the 	grandfather 	section.
Her 	application was 	initially rejected 	because 	it 	was
considered 	untimely 	filed. 	However, 	once 	this 	misunderstanding
was 	clarified, 	Wygant's 	application was 	processed 	and 	she was
designated as 	having 	retroactive MEQ 	for 	the 	entire 	school 	year
for 	which 	she 	originally applied.
The 	record 	of 	the 	MEQ 	implementation 	commitee's 	actions
concerning 	the 	other 	four 	applications 	reveals 	that 	they were
reviewed 	and 	evaluated 	in the 	same manner 	as 	those 	where MEQ
status 	was 	granted.
The 	greatest 	amount 	of 	controver~y about 	the 	committee's
29

decisions 	was 	generated 	by the 	Echols' 	application. 	The
committee's 	decision 	not 	to 	credit 	two 	courses 	to her 	area 	of
concentration 	(leaving her 	short 	of 	the 	minimum 	number 	of
required 	units), 	was 	not 	unanimous. 	However, 	there 	is 	nothing
in 	the 	evidence 	to 	suggest 	that 	the 	District 	exerted 	improper
influence 	over 	the 	committee members 	to 	adversely 	influence
this 	decision.
VVTA contends 	that 	the 	unilateral 	change 	in policy and
practice 	stems 	from 	the 	way 	in which 	the 	District 	has
interpreted and 	applied 	the 	waiver 	provisions 	of 	the
grandfather 	section. 	This 	section of Article 	XVIII 	states 	that
employees 	who 	apply under 	this 	part 	of 	the 	article 	"must 	meet
all 	requirements 	of 	the 	Master's 	Equivalency except
• 	[l] 	prior 	approval 	of 	item 	2(b), 	• 	[2] 	three
consecutive 	years 	of 	evaluation, 	[3] 	filing 	of
application 	for 	Master's 	Equivalency, 	prior 	to 	earning 	units 	in
2 (b) • 11
The 	Association 	alleges 	that 	it 	was 	understood 	by 	the
parties 	that, 	in 	addition 	to 	the 	above 	cited waivers, 	the
waiver 	also 	applied 	to 	item 	2(a) 	of 	the 	general 	requirements.
Thus, 	the 	"approved 	area 	of 	concentration" 	requirement 	was 	not
to 	apply 	to 	those 	seeking MEQ 	status 	under 	the 	grandfather
section.
This 	argument, 	however, 	is 	not 	supported 	by 	the 	testimony
of 	either 	of 	the 	two 	witnesses 	who 	served on 	the 	MEQ
30

formulation 	committee 	and 	participated 	in 	drafting 	the 	language
of 	Article XVIII. 	Nor 	does 	the 	express 	language 	of· this
section 	itself 	(grandfather 	clause) 	support 	this 	contention.
The 	language 	of 	the 	"grandfather 	clause" 	is 	clear 	and
unambiguous. 	Those 	requirements 	of 	the 	MEQ 	program 	that 	are
waived 	by 	this 	section 	are 	explicitly stated. 	The 	language 	of
this 	clause 	does 	not 	expressly or 	impliedly waive 	the
requirement 	of 	an 	"approved area 	of 	concentration" 	in 	item
2(a), 	nor 	is 	there 	evidence 	that 	the 	drafters 	of 	the 	language
intended 	that 	this 	requirement 	was 	to be 	waived 	for 	anyone
applying 	for 	MEQ 	status. 	Additionally, 	there 	is 	no 	evidence
that 	anyone 	who 	was 	granted MEQ 	status 	was 	allowed 	the
designation 	without 	an 	approved 	area 	of 	concentration. 	It 	is,
therefore, 	concluded 	that 	the 	committee's 	interpretation 	and
application 	of 	the 	provisions 	of 	Article 	XVIII 	to MEQ
applicants 	have 	not 	resulted 	in a 	breach 	or 	alteration of 	any
terms 	of 	this 	article 	of 	the Agreement.
Although 	it 	has 	been 	found 	that 	the 	conduct 	in 	question has
not 	constituted a 	breach 	or 	alteration 	of 	the 	contract, 	it 	is
still 	necessary to 	determine 	whether 	such 	conduct 	represents 	a
change 	in 	the 	District's 	established 	past 	practice 	regarding
salary schedule 	advancement.
There 	is 	no 	evidence 	that 	prior 	to October 	1, 	1981, 	the
District 	had 	any 	policy or 	practice which 	allowed 	teachers, 	who
did 	not 	possess 	a 	master's 	degree, 	to 	advance 	to Column 	IV 	on
31

the 	salary schedule. 	Although District 	board 	policy 	4912
(which has 	been 	in 	effect 	since 	1956) 	covers 	both 	vertical 	and
horizontal 	salary schedule movement, 	it 	has 	very different
criteria 	from 	the 	MEQ 	program. 	Though 	policy 	4912 and 	the 	MEQ-
provisions 	of 	Article 	XVIII 	both 	provide 	for 	salary
advancement, 	they are 	not 	interchangeable 	nor 	mutually
exclusive. 	The 	District's 	policy applies 	to 	all 	salary
schedule 	advancement 	except 	where 	a 	teacher 	seeks 	to 	advance
from 	Column 	III 	to 	Column 	IV 	without 	possessing 	a 	master's
degree. 	Except 	for 	movement 	from 	column 	III 	to 	column 	IV
without 	a 	master's 	degree, 	policy 	4912, 	where 	applicable, 	is
still 	in 	effect. 	The 	MEQ program 	is 	a 	new 	policy which 	came
into 	existence 	as 	a 	result 	of 	collective 	bargaining. 	Although
two 	requirements 	from 	policy 	4912 were 	conceptually
incorporated 	into the 	MEQ 	program, 	the 	applicability of 	these
criteria 	is 	governed by 	the 	CBA terms, 	not 	by 	the 	past 	practice
under 	District 	policy 	4912.
While 	the 	record 	shows 	that 	in 1975 	the 	District 	did 	permit
some 	teachers 	to 	advance 	to Column 	IV without 	the master's
degree 	on 	a 	one-time basis, 	there 	is 	no 	evidence 	that 	this 	has
become 	an 	established 	practice 	or 	has 	ever 	occurred 	again 	since
that 	time. 	A one-time occurrence 	is 	not 	enough 	to 	show 	an
established 	practice. 	Additionally, 	that 	practice was 	too
remote 	in time 	from 	the 	present 	program 	to have 	any 	relevance
to more 	recent 	practice 	under 	policy 	4912.
32

Considering 	these 	factors, 	it 	is 	concluded 	that 	the
implementation of 	the 	MEO-program 	does 	not 	represent 	a 	change
in the 	District's 	past 	practice 	with 	respect 	to 	the 	criteria
used 	for 	salary schedule 	placement 	of 	members 	of 	the
certificated bargaining 	unit. 	It 	is 	further 	found 	that 	no 	past
practice 	for 	MEQ designation has 	existed within 	the 	District.
Since 	there 	has 	been 	no 	showing 	that 	a 	breach of 	the 	CBA or
an 	alteration or 	change 	of 	the 	District's 	past 	practice
concerning 	salary schedule 	placement 	has 	occurred, 	it 	is
unnecessary to make 	a 	determination 	regarding 	the 	remaining
steps 	of 	the Grant 	test.
Based on 	the 	foregoing, 	it 	is 	determined 	that 	Charging
Party 	failed 	to 	demonstrate 	that 	Respondent, 	either
independently or 	through 	improper 	domination 	of 	the 	MEQ
implementation 	committee, 	violated 	the 	Act 	by 	breach 	or
alteration of 	the 	CBA which 	also 	constituted an 	unlawful
unilateral 	change. 	Thus, 	the 	allegation 	of 	a 	section 	3543.S(c)
violation must 	be 	dismissed. 	For 	the 	same 	reasons 	the
allegations 	of 	derivative 	violations 	of 	section 	3543.S(a) 	and
(b) 	must 	also be 	dismissed.
PROPOSED ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law 	and
the 	entire 	record 	in 	this 	case, 	the 	charge 	and 	the 	complaint
are 	DISMISSEU in 	their 	entirety.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
33

part 	III, 	section 	32305, 	this 	Proposed Decision 	and Order 	shall
become 	final 	on 	September 	25, 	1984, 	unless 	a 	party 	files 	a
timely 	statement 	of 	exceptions. 	In 	accordance 	with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify by 	page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento before 	the 	close 	of 	business 	(5:00 p.m.) 	on
September 	25, 	1984, 	or 	sent 	by 	telegraph 	or 	certified United
States 	mail, 	postmarked 	not 	later 	than 	the 	last 	day 	for 	filing
in 	order 	to 	be 	timely 	filed. 	See 	California Administrative
Code, 	title 	8, 	part 	III, 	section 	32135. 	Any statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon 	each 	party to 	this 	proceeding. 	Proof 	of
service 	shall 	be 	filed 	with 	the 	Board 	itself. 	See 	California
Administrative 	Code, 	title 	8, 	part 	III, 	section 	32300 and 	32305.
Dated: 	September 	5, 	1984
34
k.~ ... JW. 	Je6l{Thomas
Administrative Law Judge