Modesto City Schools and High School District (PERB 0541E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO 	TEACHERS 	ASSOCIATION,
Charging 	Party,
v.
MODESTO 	CITY SCHOOLS 	AND 	HIGH
SCHOOL DISTRICT,
Respondent.
Case No. 	S-CE-736
PERB Decision No. 	541
December 12, 	1985
Appearances; 	Ken Burt, 	Attorney for Modesto Teachers
Association; 	Breon, 	Galgani, 	Godino & O'Donnell by Sharon M.
Keyworth 	for 	Modesto 	City Schools 	and 	High 	School 	District.
Before Hesse, 	Chairperson; Jaeger, 	Morgenstern and Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	to the
proposed decision of 	a PERB administrative 	law 	judge 	(ALJ) 	filed
by the Modesto 	Teachers 	Association 	(MTA or Association). 	In
his proposed decision, 	attached hereto, 	the ALJ concluded 	that
the Modesto City Schools 	and 	High 	School 	District 	(District) 	did
not 	violate 	the 	unfair practice 	provisions 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA)l 	when 	it 	unilaterally
eliminated 	the 	second 	preparation 	period 	for 	the 	social 	studies
department 	chairperson at 	Downey High 	School. 	We 	agree.
1EERA 	is 	codified at 	Government 	Code 	section 3540 et 	seq.
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FACTUAL 	SUMMARY
In 	the main, the 	factual 	circumstances 	surrounding 	the
instant 	case are 	undisputed. 	We 	find 	the ALJ's 	findings 	of 	fact
to be 	free 	from prejudicial 	error 	and 	adopt 	them as 	the 	findings
of the Board 	itself. 	In summary, 	the 	instant dispute arose
when, 	in the spring of 1983, 	the principal 	at 	Downey High School
reduced 	the 	number 	of 	department 	chairpersons 	at 	the 	school 	and
eliminated 	the 	second preparation period 	for 	the 	chairperson 	of
the social studies department. 	Prior 	to that 	time, 	beginning 	in
1969, 	the social 	studies 	chairperson at 	Downey was 	Ken Lowry.
Throughout 	that period, 	Lowry enjoyed 	the 	second preparation
period, 	using 	that 	time 	to perform departmental 	duties.
DISCUSSION
In Modesto City Schools 	and High 	School 	District 	(1984) 	PERB
Decision No. 	414, 	the Board found that, 	in spite of a relatively
consistent 	past practice 	establishing 	the 	duration of 	the 	duty-
free 	lunch period at one high school, 	the past practice 	at other
schools 	in the 	District 	was 	a relevant 	concern. 	Accordingly,
finding 	evidence 	of both a 	great deal 	of 	variation 	among 	the
District 	schools 	as 	well 	as 	a great 	deal 	of 	flexibility 	in
scheduling, 	the 	Board 	found that 	the Association 	failed 	to
demonstrate 	a 	unilateral 	change 	in District policy.
The 	ALJ appropriately applied 	the 	rule 	enunciated 	in Modesto,
supra, 	to the 	facts 	in the 	instant 	case. 	Finding the parties'
contract did not 	address 	the 	second preparation period, 	the ALJ
correctly 	referred 	to 	the 	districtwide past 	practice 	to determine
whether 	an 	unlawful 	unilateral 	change 	occurred.
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When 	the past practice 	is 	considered on a
unit-wide basis, 	it 	is clear that the
Association 	can point 	to no 	consistent
pattern. 	Some 	chairpersons 	have had 	two
preparation periods 	and 	some have not. 	Some
who once had 	two preparations 	lost 	the 	second
preparation 	long ago. 	Few retain the benefit.
Although 	the 	social 	studies 	chairperson at
Downey did 	not 	lose his 	second preparation
period until 	the 	fall of 	1983, 	the record
indicates 	that 	the 	social 	studies 	chairpersons
at 	Davis 	and Modesto High Schools 	lost 	their
second preparation sometime 	earlier, 	if 	indeed
they ever had 	the benefit. 	There 	seems 	to be
little 	relationship between 	the 	number 	of
teachers 	in a department 	and whether 	its
chairperson has 	one 	or 	two preparation
periods. 	Chairpersons 	of small departments
have had 	second 	preparation periods 	while
their 	counterparts 	in 	larger 	departments 	did
not. 	The Association can point 	to no
objective 	criteria which, 	although previously
followed, 	were 	ignored at 	Downey 	in the 	fall
of 1983. 	Historically, 	the decision about
whether 	a 	chairperson has 	had one or 	two
preparation periods 	seems 	to have been within
the 	exclusive 	control 	of 	the high school
principals. 	(ALJ's 	Proposed Decision, 	at
pp. 	18-19.)
As was 	the case 	in Modesto, 	supra, 	here the practice of
affording 	department 	chairpersons 	a 	second preparation period
has 	not 	been uniformly applied 	to 	teachers 	in 	the 	District.
Moreover, 	the 	District's 	longstanding policy has 	been 	to delegate
to 	the principal 	the 	authority 	to 	change preparation period
allotments 	from time 	to time as 	the principal 	sees 	fit. 	In sum,
the 	salient 	point 	derived 	from Modesto 	is 	that 	districtwide
policy, 	not 	individual school practice, 	is 	the appropriate
benchmark 	in unilateral 	change cases 	such as 	this. 	Thus, 	since
the 	facts 	here 	showed both a 	variation between 	schools 	in 	the
District, 	as 	well as a history of changes 	in individual
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chairpersons' 	preparation period allocations, 	no change 	in policy
was 	demonstrated.
In affirming 	this dismissal, 	we note that 	the 	facts 	in this
case, 	notably 	that 	Lowry enjoyed 	the 	second preparation period
for more 	than a decade, 	test our past practice rule. 	However,
where a diversity among 	schools 	as 	to a particular 	term or
condition of 	employment 	is 	accompanied by a history of
discretionary changes 	in 	that 	term, 	the 	Board cannot 	find 	that a
variation 	in 	employee working 	conditions 	at 	an 	individual 	school,
if only 	it 	lasts 	long enough, 	constitutes 	an 	inviolable policy.
To do so would 	freeze 	into permanence 	a host 	of different,
perhaps 	contradictory, 	disparate and 	even discriminatory ways 	of
treating 	employees. 	Surely the 	law contemplates 	no such 	chaotic
and unworkable 	result. 	Rather, 	we remain convinced that, 	to
violate 	EERA, 	the change must 	affect 	a broad policy of 	the
statutorily-defined 	employer, 	the 	school 	district.
ORDER
Based on 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	it 	is hereby ORDERED that 	the 	unfair practice 	charge 	in
Case No. 	S-CE-736 	is hereby DISMISSED. 	MTA's 	request 	for 	oral
argument 	is 	DENIED.
Chairperson Hesse 	and Member 	Burt 	joined 	in 	this 	Decision.
Member Jaeger's 	concurrence begins 	on p. 	5.
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Member Jaeger, 	concurring: 	I 	find this 	case to be a
straightforward one. 	As 	with all 	unilateral 	change cases, 	the
first 	step 	is 	to 	identify the 	employer's 	policy on 	the 	subject
at 	issue prior 	to 	the alleged unilateral 	conduct. 	Oak 	Grove
School District 	(1985) 	PERB Decision No. 	503. 	Here, 	the
subject at 	issue 	is preparation periods. 	The employer, 	of
course, 	is 	the District, 	not the individual school. 	Prior to
the 	complained-of 	reduction 	in preparation 	time, 	the 	employer's
policy, 	as 	the ALJ and the Board both 	found, 	was 	to delegate 	to
the principal 	at 	each school 	the authority to determine 	the
number 	of periods 	of preparation 	time 	each department
chairperson would receive. 	The evidence, 	while admittedly
weak, 	fairly shows 	that 	the principals 	exercised their
authority 	from 	time 	to 	time 	to 	change preparation 	time
assignments.
Given these 	findings, 	the conclusion 	is 	clear 	that 	the
reduction 	in preparation 	time 	which 	Charging 	Party here
complains 	of did not 	evidence a 	change 	in employer policy, 	but
was 	consistent 	with 	existing practice.
I 	find 	the 	issue of 	"diversity" 	in working conditions 	among
the 	various 	school 	sites 	of 	a 	school 	district 	to be 	something
of 	a 	red herring. 	In Modesto City 	Schools 	and 	High 	School
District 	(1984) 	PERB Decision No. 	414, 	a decision in which I
joined, 	this 	Board rejected 	the proposed decision of 	an ALJ
which 	found 	a 	violation of 	the 	EERA based 	on deviation at 	a
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single 	school 	site 	from the past practice at 	that 	site. 	In
doing 	so, 	the 	Board 	relied heavily on 	the 	evidence of diversity
among 	the 	various 	schools 	within 	the district as 	to 	the
contested subject, 	to wit, 	the 	length of the duty-free 	lunch
hour. 	As 	I understood the decision, 	the salient point 	there
made was 	that 	it 	is 	the school district which is 	the
statutorily-defined employer, 	not 	the 	individual school 	site.
Thus, 	it 	is 	district policy which is 	the 	focus of the
negotiating obligation codifed 	in 	the 	EERA. 	Charges 	of
unilateral 	change 	then, 	cannot be decided by considering
evidence 	only of 	the practice at 	a single 	school site. 	Rather,
the district 	as 	a whole must be 	examined 	in order 	to determine
the 	true policy of 	the employer. 	Applying 	this 	approach 	in our
Modesto decision, 	we concluded, 	based on the 	evidence of 	the
varied practices 	among the schools, 	that 	the 	evidence of a
change 	at 	the 	single 	school 	site was 	insufficient 	to prove 	that
a 	change 	in 	employer policy 	occurred.
The 	fact 	that 	there 	is 	diversity 	in a working condition
among the schools of a district, 	however, 	does not of 	itself
dictate 	the answer 	to a charge of 	unilateral 	change. 	Thus 	if,
in a multi-school 	district, 	every chairperson happened 	to enjoy
the 	same amount of preparation time, 	but 	the 	employer's policy
was 	the same as 	in the 	instant 	case, 	I would again 	find no
violation were 	a 	school principal 	to 	exercise 	the 	authority to
change 	a preparation 	time assignment. 	This 	would be 	so despite
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the absence of 	"diversity." 	By the 	same 	token, 	if a school
district 	assigned preparation 	time 	on a 	fixed basis 	rather 	than
according 	to principal discretion, 	then a 	change 	in preparation
time 	for 	one 	chairperson at 	a 	single 	school 	could violate 	the
EERA notwithstanding 	that 	every school 	site 	in 	the 	district 	may
differ 	from every other 	in 	the 	amount 	of 	minutes 	allotted 	for
preparation 	time.
As 	I 	see 	it, 	diversity among schools within a district
regarding a particular 	working 	condition may be 	important 	as
evidence 	suggesting 	that 	the 	employer has 	delegated 	the
decision-making 	authority to 	the 	local 	site 	administrator.
Aside 	from this 	significance, 	however, 	I 	find that the
appropriate 	analysis 	of 	this 	type of 	case 	differs 	not 	at 	all
from that 	appropriate 	to any other 	unilateral 	change 	dispute.
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STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
MODESTO 	TEACHERS 	ASSOCIATION.
Charging 	Party.
V.
MODESTO 	CITY 	SCHOOLS 	AND HIGH 	SCHOOL
DISTRICT.
Respondent.
Unfair 	Practice
Case No. 	S-CE-736
PROPOSED DECISION
(11/28/84)
Appearances: 	Ken Burt. 	Attorney and Executive Director 	for 	the
Modesto Teachers Association; 	Sharon Keyworth. 	Attorney 	(Breon.
Galgani. 	Godino 	& O'Donnell) 	for 	the Modesto City Schools 	and
High School 	District.
Before Ronald E. 	Blubaugh. 	Hearing Officer.
PROCEDURAL 	HISTORY
An 	exclusive 	representative 	here 	challenges 	the 	elimination
of 	a 	non-teaching 	period 	which 	formerly 	had 	been 	granted 	to 	the
social 	studies 	department 	chairperson at 	one 	of 	the 	employer's
high schools. 	The union argues 	that 	the 	action was 	unilateral
and 	that 	it 	resulted 	in a 	lengthening of 	the work hours 	of 	the
affected 	employee. 	The 	employer 	responds 	that 	it 	acted within
its 	managerial 	prerogative 	to make 	assignments 	and 	that 	its
action did 	not 	affect 	any negotiable matter. 	In any event, 	the
employer 	argues, 	its 	action was 	consistent with past 	practice.
The 	charge which 	commenced 	this 	action was 	filed 	on
March 5, 	1984, 	by the Modesto Teachers Association 	(hereafter
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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Association) 	against 	the Modesto 	City Schools 	and 	High School
District 	(hereafter 	employer 	or District). 	The 	charge alleged
that 	the 	employer 	had 	reduced 	from 15 	to 	9 	the 	number 	of
department 	chairpersons 	at 	Downey High 	School 	and 	had
eliminated 	one 	of 	two 	preparation 	periods 	which 	the 	social
studies 	and 	English department 	chairpersons 	formerly 	had
enjoyed 	at Downey. 	The 	changes 	allegedly were 	taken without
prior 	bargaining 	and were 	contrary 	to 	past 	practice. 	These
actions, 	according to the Association, 	were 	in violation of
subsections 3543.5(a). 	(b). 	(c). 	(d) and (e) of the Educational
Employment Relations Act.11
1Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government Code. 	The Educational 	Employment Relations Act
(hereafter EERA) 	is 	found at 	section 3540 et 	seq.
Section 	3543.5 	provides 	as 	follows:
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
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
(d) 	Dominate 	or 	interfere with the
formation or 	administration 	of 	any 	employee
organization, 	or 	contribute financial 	or
other 	support 	to 	it. 	or 	in any way encourage
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employees 	to 	join any organization 	in
preference 	to 	another.
(e) 	Refuse 	to 	participate 	in good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in Article 	9
(commencing with section 3548).
The charge was 	amended on April 	2 and May 4, 	1984, 	to add
more factual details 	to the allegations. 	On May 14. 	1984, 	the
Sacramento 	Regional 	Attorney 	of 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB) 	issued 	a 	complaint 	against 	the 	employer
for 	the 	elimination of 	the 	second 	preparation 	period 	for 	the
Downey High School 	social 	studies 	chairperson. 	This 	conduct 	is
alleged 	to 	have 	been 	in violation of 	subsection 	3543.5(c) 	and
derivatively, 	(a) 	and 	(b). 	Also on May 14, 	the regional
attorney 	dismissed 	the 	remainder 	of 	the Association's 	charge 	on
the 	grounds 	that 	a 	reduction 	in the 	number 	of 	department
chairpersons 	did 	not 	state 	a 	prima 	facie 	violation 	of 	the
EERA. 	The Association on June 	5, 	1984, 	filed an appeal 	of 	the
partial 	dismissal 	to 	the PERB 	itself where 	the matter 	is 	now
pending.
The 	employer 	answered 	the 	complaint on June 	4, 	1984,
denying 	that 	it 	had 	made 	any 	change 	in 	past 	practice 	and
asserting 	that 	the 	allegations 	at 	issue were 	insufficient 	to
state 	a 	prima 	facie violation of 	the EERA.
A hearing was 	conducted 	on 	September 	17 	and 	18 	in
Stockton. 	Briefs 	from the 	parties 	were 	received 	on
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November 	13. 	1984. 	on which date 	the matter was 	submitted 	for
decision.
FINDINGS 	OF FACT
The Modesto City Schools 	and High School District 	is 	a
public 	school 	employer 	under 	the EERA. 	The District 	operates
four 	high schools, 	one 	of which—Downey--is 	the 	location for
the events at 	issue. 	At all 	times 	relevant, 	the Modesto
Teachers 	Association 	has 	been 	the 	exclusive 	representative 	of
the District's 	certificated 	employee 	unit, 	a unit 	that 	includes
department 	chairpersons.
Under 	the 	contract 	between 	the 	parties, 	high school
teachers 	are 	required 	daily 	to 	teach:
330 	minutes 	including 	a 	preparation period
equivalent 	to 	a 	student 	instructional 	period
and 	excluding 	lunch.
The 	preparation period 	is used 	to 	prepare 	for 	class, 	to 	correct
tests, 	to enter 	grades 	into record 	books, 	to obtain supplies
and 	to work 	on classroom materials.
Beginning sometime 	in the mid-1960's, 	chairpersons 	of 	the
social 	studies 	department 	at Downey High School 	were 	given 	two
daily preparation 	periods. 	Their 	regular 	workday 	thus
consisted 	of 	four 	teaching periods, 	a 	preparation period 	to 	be
used 	for 	their 	teaching duties, 	a 	preparation period 	to 	be used
for 	their 	duties 	as 	department 	chairperson and 	a 	duty-free
lunch period. 	Although the 	enrollment 	in the 	high school 	and
the 	number 	of 	teachers 	in the 	social 	studies 	department varied
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widely over 	the years, 	it was 	the 	consistent 	practice 	that 	the
social 	studies 	chairperson 	retained 	two 	preparation 	periods.
The 	second 	preparation 	period 	existed 	when 	the 	department 	had
as 	many as 	15 	members 	and 	as 	few as 	9. 	The 	contract 	between
the 	parties 	has 	never 	reflected 	the 	existence 	of 	the 	second
preparation 	period.
From 	1969 	through the 	spring of 	1983. 	the 	social 	studies
chairperson at Downey was 	Ken Lowry. 	Mr. 	Lowry described 	the
second 	preparation 	period 	as 	a 	supervision 	period 	and 	he 	used
it 	to 	carry out 	the duties 	of 	the department 	chair. 	The duties
of 	the 	job were varied. 	As department 	chairperson. 	Mr. 	Lowry
was 	responsible 	for 	the departmental 	budget, 	the 	scheduling of
teachers 	and 	the 	ordering 	of 	supplies 	and 	textbooks 	for
teachers 	and 	students. 	He was 	involved 	in 	the 	selection of
textbooks 	and 	the 	revisions 	of 	curriculum. 	He 	served 	as 	the
liaison 	between 	the 	school 	administration 	and 	the 	departmental
faculty and 	it was 	his 	role 	to 	try to work 	out 	the daily
complaints 	which would 	surface 	in 	the 	department.
In 	the 	spring of 	1983. 	Downey High School 	Principal
Jerome Kopp 	decided 	to 	reduce 	the 	number 	of 	department
chairpersons 	at 	the 	school 	and 	to 	eliminate 	the 	second
preparation 	period 	for 	the 	chairpersons 	of 	the 	social 	studies
and English departments. 	With respect 	to 	social 	studies,
Mr. 	Kopp 	testified 	that 	he 	eliminated 	the 	second 	period 	in
order 	to 	better 	allocate 	the 	funds 	available 	for 	the 	school.
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In addition, 	he 	concluded 	that when compared with 	the
responsibilities 	of 	other 	department 	chairpersons, 	social
studies 	could 	not 	be 	justified 	for 	a 	second 	preparation 	period.
Exactly how Mr. 	Kopp announced 	his 	plans 	is 	a matter 	of
some dispute. 	Mr. 	Kopp 	testified 	that 	he 	told Mr. 	Lowry
personally 	in about April 	of 	1983 	that 	the 	second 	preparation
would 	be 	eliminated 	the 	next 	fall. 	Mr. 	Lowry 	testified 	that 	he
learned 	of 	the 	change 	at 	a 	meeting 	of 	department 	chairpersons
in May of 	1983 	and 	that Mr. 	Kopp 	never 	told 	him personally
about 	the 	change 	or 	asked 	him to 	continue 	in the 	position. 	For
the purposes 	of 	this 	proposed decision, 	it makes 	no 	difference
how the 	change was 	announced. 	It 	is 	significant 	only 	that
Mr. 	Kopp 	announced 	the 	change 	in 	the 	spring of 	1983 	and 	that
Mr. 	Lowry declined 	to continue as 	chairperson. 	Mr. 	Lowry
concluded 	that 	there would 	not 	be 	enough 	time 	in 	the 	day 	to 	do
the 	job without 	a 	second 	period. 	Additional 	hours would 	be
required 	outside 	of 	school 	and 	he 	did 	not want 	the 	position
under 	these 	circumstances.
The 	position of 	social 	studies 	department 	chairperson was
assumed by Albert Simi on September 	6, 	1983. 	Mr. 	Simi, 	a
District 	teacher 	for 	20 years, 	accepted 	the 	position at 	the
request 	of 	the Downey vice 	principal. 	He 	understood when he
took 	the 	position 	that 	it would 	be without 	the 	second
preparation 	period 	and 	that 	he would 	be 	expected 	to 	teach 	five
classes, 	the same as other department members. 	Mr. 	Simi had
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only one 	preparation period 	during 	the 	1983-84 	school 	year, 	a
practice which 	continued 	into 	the 	1984-85 	school 	year.
Mr. 	Simi's 	duties 	as 	department 	chairperson were 	identical
to those of his predecessor. 	Mr. 	Lowry. 	Mr. 	Simi was
responsible 	for 	preparation of 	the 	department 	budget which
required 	regular 	communication with members 	of 	the 	department
so 	they would 	complete 	their 	requests 	in a 	timely manner. 	He
also 	prepared 	the work 	schedules 	for 	teachers 	in 	the 	department
and was 	responsible 	for 	the 	ordering 	of 	textbooks 	and 	supplies.
Performance 	of 	the department 	chairperson duties 	occupied
about 40 minutes, 	on the average, 	of Mr. 	Simi's workday. 	He
performed 	these 	duties 	in 	the morning 	before 	class, 	between
classes, 	during his 	preparation period, 	at 	lunch and after
school. 	He estimated 	that 	on the average, 	half 	of 	his 	daily
preparation 	period was 	used 	on departmental 	business. 	Use 	of
his 	daily 	preparation 	period 	for 	departmental 	business 	required
Mr. 	Simi 	to 	spend more 	time at home 	to 	prepare 	for 	teaching.
He 	estimated 	that 	he worked 	three 	hours 	longer 	each week 	than
would 	have 	been 	required 	had 	he 	received 	a 	second 	preparation
period.
At 	the 	same 	time 	he 	decided 	to 	eliminate 	the 	second
preparation period 	for 	social 	studies. 	Mr. 	Kopp also decided 	to
eliminate 	it 	for 	the English department 	chairperson. 	When 	the
school 	term began 	in the fall 	of 	1983. 	neither 	department
chairperson had 	a 	second 	preparation period. 	However, 	the
77

English department 	chairperson met with Mr. 	Kopp 	and 	convinced
him of 	a 	need 	for 	the extra 	period. 	The 	principal 	decided 	to
restore 	the 	second 	period 	because 	of 	the 	size 	of 	the English
department--13 	instructors—and 	the 	varied 	responsibilities
which 	accompanied 	the 	chairmanship. 	Beginning with 	the 	fall 	of
1983. 	the English department 	chairperson has 	been the 	only-
department 	head 	to 	have 	two 	preparation 	periods 	at Downey.
Historically, 	two 	other 	Downey department 	chairpersons 	have
had 	second 	preparation periods 	at 	one 	time 	or 	another. 	The
agriculture 	department 	chairperson 	had 	two 	preparation 	periods
during 	the 	mid-1970's. 	The 	second 	preparation 	period was
dropped when 	the 	number 	of 	instructors 	in 	the 	department 	fell
appreciably. 	When 	the 	department 	chairperson did 	have 	two
preparation periods, 	a 	substantial 	portion of 	his 	time was 	used
supervising 	students 	who worked 	on a 	District 	farm as 	a 	school
assignment. 	The 	other 	department 	chairperson with a 	second
preparation period 	during 	the 	1970's was 	the 	chairperson 	of
industrial 	arts. 	Although 	the 	department 	did 	not 	have 	a 	large
number 	of 	teachers, 	it 	has 	had a 	large 	budget and 	the
chairperson has 	been 	required 	to 	order 	numerous 	supplies.
Budgetary 	restrictions 	led 	to 	the 	elimination 	of 	the 	second
preparation 	period 	for 	the 	chairperson of 	industrial 	arts.
The District 	has 	no uniform practice 	for 	deciding which, 	if
any. 	department 	chairpersons 	should 	receive 	a 	second
preparation 	period. 	The 	collective 	bargaining agreement 	is
8

silent 	on the 	subject and 	it 	appears 	that 	the 	decision 	is 	left
to 	the 	individual 	high school 	principals. 	Like 	the District,
the 	principals 	have 	no uniform 	basis 	for 	deciding which
chairpersons 	have 	two preparation periods. 	The 	primary
requirement the 	District 	places 	on 	the 	principals 	is 	that 	they
live within a 	specific 	budget. 	The 	principals 	are 	given
considerable 	discretion 	in meeting 	that 	goal.
The 	principal 	at Modesto High 	School 	testified 	that 	at 	his
school 	only 	the English and 	business 	department 	chairpersons
receive 	a 	second 	preparation period. 	He 	testified 	that 	a
department 	chairperson 	receives 	a 	second 	preparation 	period
only 	if 	the members 	of 	the department 	agree 	to 	teach a
sufficient 	number 	of 	additional 	students 	to 	cover 	for 	the
department 	chair.2 At Davis High School, 	the English
chairperson 	has 	a 	second 	preparation 	period 	but 	the 	social
studies 	chairperson does 	not.
2 The Association attempts 	to 	discredit 	the 	testimony of
the Modesto High School 	principal. 	Richard Lang, 	by showing
contradictions 	between his 	testimony about 	a 	job 	title 	he 	held
during a 	teachers' 	strike and a declaration he made at 	the
time. 	See Association brief, 	pp. 	13-14. 	The hearing officer
is 	unpersuaded 	by this 	effort. 	The hearing officer 	finds 	it 	of
no 	significant 	consequence 	that Mr. 	Lang could 	not 	recall 	the
strike 	job 	title 	he 	recited 	in a 	four-year-old 	declaration 	that
likely was written 	by an attorney and 	signed 	by him at 	a 	time
of 	great 	haste. 	None of 	this undercuts 	his 	testimony that 	the
social 	studies 	department 	chairperson at Modesto 	High 	School
does 	not 	have 	a 	second 	preparation period 	and 	that, 	as
principal, 	he 	is given great 	latitude by the District 	in
deciding whether 	department 	chairpersons 	should 	have 	second
preparation 	periods.
9

On or about June 2. 	1983. 	the Association demanded 	to
negotiate with 	the District 	over 	the 	proposed 	changes 	at Downey-
High School. 	While 	the 	primary focus 	of 	the 	negotiations
appears 	to 	have 	been over 	the 	proposed 	consolidation of 	the
departments, 	it 	is 	clear 	that 	the union also sought 	to
negotiate 	about 	the 	proposed 	elimination of 	the 	second
preparation 	period. 	Association President 	Frank Vandervort
testified 	that 	the District's 	negotiator, 	Keith Breon, 	took the
position 	that 	the 	subject 	of 	the 	number 	of 	department
chairpersons was 	outside 	of 	the 	scope 	of 	representation3W but
initially agreed 	that 	the 	reduction 	in 	preparation 	periods 	was
negotiable. 	Mel Jennings, 	the director 	of 	personnel 	for 	the
employer, 	contradicted 	this, 	testifying that Mr. 	Breon offered
3 The 	scope 	of 	representation under 	the EERA 	is 	set 	forth
at 	section 3543.2 which, 	in relevant part, 	provides 	as 	follows
(a) 	The 	scope 	of 	representation shall 	be
limited 	to matters 	relating to wages, 	hours
of 	employment, 	and other 	terms and
conditions of 	employment. 	"Terms 	and
conditions 	of 	employment" 	mean health and
welfare 	benefits 	as 	defined 	by
section 53200, 	leave, 	transfer and
reassignment policies, 	safety conditions 	of
employment, 	class size, 	procedures to be
used 	for 	the 	evaluation of 	employees,
organizational 	security 	pursuant 	to
section 3546, 	procedures 	for 	processing
grievances 	pursuant 	to 	sections 	3548.5,
3548.6, 	3548.7. 	and 3548.8. 	and the layoff
of 	probationary 	certificated 	school 	district
employees, 	pursuant 	to 	section 44959.5 	of
the 	Education 	Code 	. . . .
10

to 	discuss 	both 	subjects 	with 	the union 	regardless 	of 	whether
or 	not 	they were within 	the 	scope 	of 	representation.
On July 26. 	1983. 	the District declared 	that 	the 	parties
were 	at 	impasse 	and 	requested 	the 	appointment 	of 	a 	mediator.
The 	Association 	opposed 	the 	declaration 	of 	impasse 	and 	the 	PERB
concluded 	that 	the 	parties 	were 	not 	at 	impasse 	and 	declined 	to
appoint 	a mediator. 	The Association made 	a 	proposal 	on
August 	17. 	1983. 	which dealt primarily with the 	proposed
consolidation 	of 	department 	chairmanships. 	Regarding 	the
proposed 	elimination of 	the 	second 	preparation periods, 	the
Association proposed 	maintenance 	of 	the 	past 	practice. 	The
parties 	had 	scheduled 	a 	negotiating 	session 	for 	August 	26 	but
the District decided 	not 	to 	continue with 	the 	negotiations. 	On
August 30. 	1984. 	Mr. 	Breon wrote the Association a 	letter
declaring 	that 	from 	the District's 	point 	of 	view the
negotiations were 	over. 	With respect 	to 	the 	reduction 	in the
number 	of 	preparation periods. 	Mr. 	Breon asserted 	that 	the
subject was 	outside 	the EERA scope 	of 	representation.
Following Mr. 	Breon's 	letter, 	no more negotiating sessions
were 	held 	between 	the 	parties. 	As 	of 	the 	start 	of 	the 	school
year, 	when the 	change was 	implemented, 	the 	parties 	had not
exhausted 	the 	statutory 	impasse 	procedures.
Department 	chairpersons 	received 	a 	stipend. 	The 	amount 	of
the 	stipend 	is 	set under 	a 	formula 	in the 	contract 	between 	the
parties. 	Chairpersons 	of 	larger 	departments 	receive 	larger
11

stipends. 	Mr. 	Simi, 	the current social 	studies chairperson at
Downey, 	expects 	to receive $895 	for 	the 	1984-85 	school year.
LEGAL 	ISSUES
1) 	Was 	the District's 	decision 	to 	eliminate 	the 	second
preparation 	period 	for 	the 	Downey High 	School 	social 	studies
chairperson a 	matter 	within 	the 	scope 	of 	representation?
2) 	If 	so. 	did 	the District make an unlawful unilateral
change 	by 	eliminating 	that 	second 	preparation 	period?
Scope 	of 	Representation.
The 	Association argues 	that 	the 	elimination of 	the 	second
preparation 	period 	for 	the 	Downey 	social 	studies 	chairperson
had 	an uncontroverted 	impact 	upon hours. 	The Association 	cites
the 	testimony of Mr. 	Simi 	that 	the duties 	of 	the 	position
require 	at 	least 	40 minutes 	per 	day and 	that 	the 	elimination 	of
the 	preparation 	period 	effectively 	increased Mr. 	Simi's 	daily
working hours 	by 40 minutes. 	Thus, 	the action affected a
matter 	within 	the 	scope 	of 	representation.
Under 	the EERA, 	a 	public 	school 	employer 	is 	obligated 	to
negotiate about matters 	relating to wages, 	hours 	of 	employment
and 	nine 	specifically enumerated 	terms 	and 	conditions 	of
employment. 	Several 	times, 	the PERB 	itself 	has 	considered 	the
question of whether 	the 	subject 	of 	preparation periods 	falls
within 	the 	scope 	of 	representation. 	See 	in particular,
San Mateo City School District 	(5/20/80) 	PERB Decision No. 	129.
Sutter 	Union High School 	District 	(10/7/81) 	PERB Decision
12

No. 	175. 	Moreno Valley Unified School District 	(4/30/82) 	PERB
Decision No. 	206, 	and Modesto City Schools 	(3/8/83) 	PERB
Decision No. 	291. 	These 	cases 	hold 	that 	preparation periods
are within 	the 	scope 	of 	representation 	"to 	the 	extent 	that
changes 	in available 	preparation 	time 	affect 	the 	length 	of 	the
employees 1 workday or 	duty-free 	time." 	San Mateo 	City School
District, 	supra. 	Thus, 	the unilateral elimination of
preparation 	periods 	is 	a 	violation only where 	the 	evidence
introduced 	by 	the 	charging 	party 	"demonstrates 	an 	actual
increase 	in workload, 	i.e.. 	that 	the 	teachers 	did 	in fact
extend 	their 	working 	hours 	for 	class 	preparation." 	Modesto
City Schools, 	supra. 	PERB Decision No. 	291.
Because 	the 	identity of 	the Downey High School 	social
studies 	chairperson 	changed 	following 	the 	elimination 	of 	the
second 	preparation period, 	it 	is 	not 	possible 	to 	compare 	the
pre-change 	and 	post-change working hours 	of 	the 	same 	employee.
Nevertheless, 	the 	evidence 	reasonably establishes 	that 	the
working 	hours 	for 	the 	job 	increased 	because 	of 	the 	elimination
of 	the 	second 	preparation 	period.
Ken Lowry. 	who 	held 	the 	department 	chair 	before 	elimination
of 	the 	second 	preparation period, 	testified 	that 	he used 	the
period 	to 	perform departmental 	duties. 	He 	resigned 	from the
position when 	the 	second 	period was 	eliminated 	because 	he
concluded 	those 	duties 	would 	have 	to 	be 	performed 	during 	his
regular 	preparation 	period 	reguiring 	other 	work 	to 	be 	performed
at home.
13

What Mr. 	Lowry expected 	is what 	actually happened 	to 	his
successor. 	Albert Simi. 	Mr. 	Simi 	testified 	that departmental
duties 	required 	about 	40 	minutes 	per 	day. 	He 	performed 	the
duties 	at various 	times, 	including his 	one 	preparation period.
Use 	of 	his 	preparation period 	for 	departmental 	business
required 	him to work additional 	hours 	at 	home 	to 	prepare 	for
teaching. 	He 	estimated 	that 	he worked 	three 	hours 	longer 	each
week 	than would 	have 	been 	required 	had 	he 	received 	a 	second
preparation 	period.
The Association, 	therefore, 	has met 	its 	burden of 	showing
that 	the 	elimination of 	the 	second 	preparation period 	led 	to 	an
actual 	increase 	in workload 	and 	lengthened 	the working hours 	of
the department 	chairperson. 	Accordingly, 	it 	is 	concluded 	that
the District's 	decision was 	within 	the 	scope 	of 	representation
under 	the EERA.
Unilateral 	Change.
The Association finds 	the underlying dispute 	to 	be 	one 	of
stark simplicity. 	For more 	than 20 years, 	the Association
argues, 	the 	social 	studies 	department 	chairperson at Downey
High 	School 	has 	without 	exception 	had 	a 	second 	preparation
period. 	The 	practice was 	changed unilaterally, 	prior 	to 	the
completion of 	negotiations, 	resulting 	in an 	increase 	in the
working hours 	of 	the 	affected 	employee. 	Such a 	clear 	change 	in
past practice, 	the Association reasons, 	is a violation of 	the
obligation 	to 	negotiate 	in good 	faith.
14

The District 	first 	argues 	that 	it 	acted 	in accord with 	the
contract which 	provides 	for 	"a 	preparation 	period 	equivalent 	to-
a 	student 	instructional 	period" 	(emphasis 	supplied) 	but 	makes
no 	mention 	of 	multiple 	preparation 	periods 	for 	department
chairpersons. 	Rather, 	the District continues, 	the contract
provides 	for 	stipends 	to department 	chairpersons, 	with the
largest 	stipends 	to 	the 	chairpersons with the 	largest 	number 	of
teachers 	to 	supervise. 	Because 	the 	contract does 	not 	require 	a
second 	preparation 	period 	for 	department 	chairpersons 	and.
indeed, 	provides 	the alternative compensation of 	a 	stipend, 	the
District 	concludes 	that 	it 	took 	no 	improper 	action when 	it
A
removed 	the 	second 	preparation 	period.
The 	District 	next 	argues 	that 	the 	past 	practice 	affords
District 	principals 	with 	the 	discretion 	to 	decide whether 	or
not 	to 	give department 	chairpersons 	two 	preparation periods.
The District 	notes 	the 	lack 	of 	consistency among 	the 	various
high schools 	and within Downey High School 	itself. 	Citing
Modesto 	City Schools 	and High School 	District 	(10/12/84) 	PERB
Decision No. 	414, 	the District argues 	that 	the practice at an
individual 	school 	cannot 	be viewed 	in 	isolation. 	What 	is
4 The 	Association 	rejects 	this 	waiver 	argument 	on 	the
ground 	that 	it was 	not 	timely 	raised 	by 	the District 	and 	is
therefore 	lost. 	For 	the 	purposes 	of 	this 	proposed 	decision 	it
is 	unnecessary 	to 	consider 	the waiver 	argument. 	As will 	be
seen, 	infra, 	even if 	the Association were sustained 	in its
rejection of 	the waiver 	defense, 	it nevertheless must 	lose 	the
case 	on the merits.
15

significant 	is 	the 	practice 	throughout 	the unit. 	Because 	the
Association failed 	to establish a 	consistent, 	unit-wide
practice, 	the District concludes, 	it has 	failed 	to meet 	its
burden 	of 	proof 	and 	its 	charge 	must 	be 	dismissed.
It 	is well 	settled 	that 	an employer 	that makes 	a
pre-impasse 	unilateral 	change 	affecting 	an 	established 	policy
within 	the 	scope 	of 	representation violates 	its 	duty 	to meet
and negotiate 	in good faith. 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736
[50 LRRM 2177]. 	Such unilateral 	changes 	are 	inherently
destructive 	of 	employee 	rights 	and 	are a 	failure 	per 	se 	of 	the
duty to 	negotiate 	in good 	faith. 	See generally, 	Davis Unified
School District 	(2/22/80) 	PERB Decision No. 	116. 	San Francisco
Community College District 	(6/8/79) 	PERB Decision No. 	94.
Established 	policy may 	be 	reflected 	in 	a 	collective
agreement. 	Grant 	Joint Union High 	School 	District 	(2/26/82)
PERB Decision No. 	196. 	or where 	the agreement 	is vague or
ambiguous, 	it may be determined 	by an examination of 	the 	past
practice 	or 	bargaining 	history. 	Rio Hondo 	Community College
District 	(12/31/82) 	PERB Decision No. 	279; 	Pajaro Valley
Unified 	School District 	(5/22/78) 	PERB Decision No. 	51.
Here, 	the 	collective 	agreement 	provides 	that 	all 	teachers
shall 	receive 	"a 	preparation period" 	but 	is 	silent about a
second 	preparation 	period 	for 	department 	chairpersons. 	There
is 	no 	evidence 	the 	subject 	ever was 	discussed 	in negotiations.
16

Established 	policy, 	therefore, 	may be 	found 	only by an
examination of 	the 	past 	practice 	of 	the 	parties.
The 	evidence 	is 	uncontested 	that 	from 	sometime 	in 	the
mid-1960's 	to 	the 	fall 	of 	1983 	the 	social 	studies 	department
chairperson 	at 	Downey High 	School 	had 	two 	preparation 	periods.
This 	practice 	continued 	in years when the 	department 	had 	a
varied 	number 	of 	members. 	It 	is 	uncontested 	also 	that 	the
second 	period 	was 	eliminated 	prior 	to 	the 	exhaustion 	of 	the
statutory 	impasse 	procedures 	and without 	the 	consent 	of 	the
Association.
The Association argues 	that 	the 	activities 	at Downey High
School 	constitute 	the 	only 	relevant 	past 	practice 	and 	that 	PERB
may not 	look 	to 	the 	practice 	at 	other District 	schools. 	In
support 	of 	its 	position, 	the Association relies upon an
arbitrator's 	decision 	involving 	the Modesto 	Schools 	in which
the 	arbitrator 	concluded 	that 	the 	only 	relevant 	past 	practice
was 	that 	at 	the 	individual 	school. 	Because 	the 	arbitrator's
award was 	issued under 	the 	contract, 	the Association reasons,
it 	is 	controlling as 	a 	statement 	of 	intent 	by the 	parties.
The Association 	thus 	ignores 	the 	PERB 	decision 	cited 	by 	the
District which apparently grew out 	of 	the 	same 	events 	as 	the
arbitrator's award. 	In Modesto City Schools, 	supra. 	PERB
Decision No. 	414. 	the PERB concluded 	that, 	"absent any evidence
of 	contrary 	intention, 	past practice 	throughout 	the unit 	is
relevant 	in determining whether 	or 	not 	a 	unilateral 	change 	in
17

policy 	has 	occurred." 	The Association 	offers 	no 	justification
for 	why 	the 	PERB 	should 	reject 	its 	own 	interpretation 	of
relevant 	past 	practice 	in favor 	of 	that 	made 	by 	the
arbitrator. 	The 	legal 	analysis 	of 	the arbitrator 	is not
binding upon the 	PERB. 	Under Modesto City Schools, 	supra, 	it
is 	relevant 	to 	consider 	the 	past 	practice 	in all 	departments 	in
all 	high 	schools 	contained within the unit.
When 	the 	past 	practice 	is 	considered 	on a unit-wide 	basis,
it 	is 	clear 	that 	the Association can point 	to 	no 	consistent
pattern. 	Some 	chairpersons 	have 	had 	two 	preparation periods
and 	some 	have 	not. 	Some who 	once 	had 	two 	preparations 	lost 	the
second 	preparation 	long 	ago. 	Few retain 	the 	benefit. 	Although
the 	social 	studies 	chairperson at Downey did 	not 	lose 	his
second 	preparation period until 	the 	fall 	of 	1983, 	the 	record
indicates 	that 	the 	social 	studies 	chairpersons 	at Davis 	and
Modesto 	High 	Schools 	lost 	their 	second 	preparation 	sometime
earlier, 	if 	indeed they ever 	had the benefit. 	There seems 	to
be 	little 	relationship 	between the 	number 	of 	teachers 	in a
department 	and whether 	its 	chairperson has 	one 	or 	two
preparation periods. 	Chairpersons 	of 	small 	departments 	have
had 	second 	preparation 	periods 	while 	their 	counterparts 	in
larger 	departments 	did 	not. 	The Association can point 	to 	no
objective 	criteria which, 	although previously followed, 	were
ignored at Downey in the fall 	of 	1983. 	Historically, 	the
decision about whether 	a 	chairperson has 	had 	one 	or 	two
18

preparation 	periods 	seems 	to 	have 	been within 	the 	exclusive
control 	of 	the 	high 	school 	principals.
Such 	evidence 	of 	an 	inconsistent 	past 	practice 	requires
dismissal 	of 	the 	complaint 	for 	failure 	of 	the 	charging 	party 	to
demonstrate 	that 	the 	employer's 	action was 	a 	unilateral
change. 	Modesto City Schools, 	supra. 	PERB Decision No. 	414.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law and 	the 	entire 	record 	in this 	matter, 	unfair 	practice
charge 	S-CE-736. 	Modesto Teachers Association v. 	Modesto City
Schools 	and High School 	District, 	and 	the 	companion PERB
complaint 	are 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8.
part 	III. 	section 32305. 	this 	Proposed Decision and Order 	shall
become final 	on December 	18. 	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
December 	18. 	1984. 	or sent by telegraph or certified
United 	States 	mail, 	postmarked 	not 	later 	than 	the 	last 	day for
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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
title 8. 	part III.
section 32300 and 32305.
Dated: 	November 28. 	1984
Ronald E. 	Blubaugh
Hearing 	Officer
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