Victor Valley Union High School District * * * OVERRULED IN PART by Regents of the University of California (2026) PERB Decision No. 3010-H, pp. 7-8 * * * (PERB 0565E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTOR VALLEY 	TEACHERS ASSOCIATION,
Charging 	Party,
v.
VICTOR VALLEY UNION 	HIGH 	SCHOOL
DISTRICT,
Respondent.
)
)
) 	Case 	Nos. 	LA-CE-1974
LA-CE-1995
LA-CE-1996
PERB 	Decision 	No. 	565
April 10, 	1986
)
)
)
)
)
)
)
Appearances; 	Atkinson, Andelson, 	Loya, 	Ruud & Romo by Janae H.
Novotny 	for 	Victor 	Valley 	Union 	High 	School 	District.
Before Morgenstern, 	Burt and Craib, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is 	before the Public
Employment 	Relations 	Board 	(PERB 	or 	Board) 	on 	exceptions 	filed
by 	Respondent, 	Victor Valley Union 	High 	School 	District
(District), 	to 	the attached proposed decision of a PERB
administrative 	law 	judge 	(ALJ).11 The ALJ 	found 	that 	the
District violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations 	Act 	(EERA 	or Act) 2 by
1Charging 	Party, 	Victor 	Valley 	Teachers 	Association 	( W T A
or Association), 	requested 	oral 	argument 	before the Board. 	That
request 	was 	denied 	by 	letter 	to 	the 	parties 	dated 	February 	27,
1986.
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the Government 	Code.
* * * OVERRULED IN PART by Regents of the University of California
(2026) PERB Decision No. 3010-H, pp. 7-8 * * *

(1) 	unilaterally 	implementing 	in 	January 	1984 	a 	10-minute-per-
day 	increase 	in 	the 	teachers 	instructional 	day 	(resulting 	in
a 	10-minute-per-day decrease 	in 	paid 	preparation 	time),
(2) 	unreasonably 	denying 	paid 	release 	time 	to W T A 	negotiators
for 	an October 	1984 	negotiating session, 	and 	(3) 	unilaterally
eliminating 	two 	pre-class 	teacher 	preparation 	days 	in 	September
1984 	(by 	increasing 	the number 	of 	instructional 	days).
After 	reviewing 	the 	entire 	record 	in 	this matter, 	including
the 	Proposed 	Decision 	and 	the 	District's 	exceptions 	thereto, 	we
find 	the 	ALJ's 	findings 	of 	fact 	to 	be 	free 	from prejudicial
error 	and 	adopt 	them as 	our 	own, 	except 	as modified below. 	In
accordance with 	the 	discussion 	below, 	we 	affirm 	in 	part 	and
reverse 	in 	part 	the ALJ's 	conclusions 	of 	law. 	Specifically, 	we
affirm 	the 	finding 	that 	the 	District 	violated 	the 	Act 	by
unilaterally 	increasing 	the 	number 	of 	instructional 	minutes 	and
increasing 	the number 	of 	instructional 	days. 	However, 	with
regard 	to 	the 	increase 	in 	instructional minutes, 	we believe 	the
District's 	waiver 	defense merits 	further 	comment. 	We 	reverse
the 	finding 	that 	the 	District 	unlawfully 	refused 	to 	negotiate
release 	time 	for 	the 	October 	1984 	negotiating 	session.
DISCUSSION
The 	Request 	for 	Oral 	Argument
The 	Association 	did 	not 	file 	a 	response 	to 	the 	District's
exceptions, 	nor 	did 	it 	file any exceptions 	of 	its own. 	On
March 21, 	1985, 	the Association 	filed 	its 	request 	for 	oral
argument. 	Within 	that 	request, 	the Association 	acknowledged
1
22

that 	it 	had 	"inadvertently" 	missed 	the 	deadline 	for 	filing 	a
response 	to the District's 	exceptions. 	However, 	PERB Regulation
3231533 requires 	that 	a 	request 	for 	oral 	argument 	be filed with
a 	statement 	of 	exceptions 	or 	a 	response 	to 	a 	statement 	of
exceptions. 	Therefore, 	the 	filing 	deadlines 	for 	requests 	for
oral 	argument 	mirror 	those 	for 	statements 	of 	exceptions 	and
responses 	to statements of exceptions. 	Consequently, 	where, 	as
here, 	a 	request 	for 	oral 	argument 	is 	filed 	after 	the 	time 	to
file 	exceptions 	or 	responses 	to exceptions 	has passed, 	such 	a
request 	is 	likewise 	untimely.44
While 	Regulation 	32315 	provides 	that 	the 	Board 	may 	direct
oral 	argument 	on 	its 	own motion, 	we 	see 	no 	reason 	to do 	so 	in
the present 	case. 	The 	record 	is 	fully adequate, 	the matter was
fully 	litigated, 	and 	the 	issues 	presented 	are 	not 	novel. 	The
Association 	asserts 	that 	oral 	argument 	is 	necessary 	due 	to 	the
importance 	to 	this 	case 	of 	the 	impact 	of 	Senate Bill 	813
(Education 	Code 	section 	46200 	et 	seq.) 	However, 	the District
has 	never 	claimed 	Senate 	Bill 	813 	as 	a 	defense 	to 	its 	actions,
3PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et 	seq.
4Pursuant 	to 	PERB Regulation 	32136, 	a 	late 	filing may be
excused 	in 	the 	discretion 	of 	the 	Board, 	but 	only 	under
extraordinary 	circumstances. 	While 	the Association 	does 	not
expressly 	argue 	that 	its 	late 	filing 	should 	be 	excused 	pursuant
to Regulation 	32136, 	we 	note 	that a party's 	"inadvertent"
failure 	to 	effect 	a 	timely 	filing 	does 	not 	constitute
extraordinary 	circumstances. 	Anaheim 	Union 	High 	School 	District
(1978) 	PERB Order No. 	Ad-42.
33

nor 	could 	it 	successfully, 	for 	the 	relevant provisions 	do 	not
prescribe 	mandatory 	action.
Waiver
With 	respect 	to 	the 	increase 	in 	instructional minutes, 	the
District 	excepts 	to 	the ALJ's 	conclusion 	that 	the 	Association
did 	not 	waive 	its 	right 	to 	bargain 	by 	failing 	to 	request
bargaining. 	The ALJ 	found 	that 	references 	in 	District 	board
agendas 	prior 	to 	the 	two 	readings 	of 	the 	District's 	proposal 	to
increase 	instructional 	time 	(December 	13 	and 	27) 	failed 	to
constitute 	sufficient 	notice 	to W T A . 	The 	ALJ 	also 	found 	that
teacher 	and W T A 	negotiator 	Don 	Wilson 	spoke 	with 	his 	principal
(Julian weaver) 	about 	the 	change, 	but 	only after 	the change 	had
been 	implemented 	in January 	1984. 	The ALJ 	went 	on 	to 	speculate
that, 	even 	if 	this 	conversation 	did take place before 	the
District board's 	decision, 	it 	would not 	constitute 	sufficient
notice, 	In 	fact, 	it 	appears 	from Wilson's 	testimony that 	he 	did
speak 	with 	Weaver 	about 	the 	change 	just 	before 	the 	Christmas
break 	(in mid-December), 	after weaver 	had 	informed the entire
Victor 	Valley High 	faculty 	of 	the 	change.
Nevertheless, 	we 	find 	that 	the 	evidence presented 	is
insufficient 	to 	demonstrate waiver 	on 	the part 	of 	the
Association, 	A waiver 	of 	the 	right 	to 	bargain must be 	"clear
and 	unmistakable," 	evidencing 	an 	intentional 	relinquishment 	of
rights 	under 	the Act. 	L O S Angeles community college District
(1982) 	PERB Decision N O . 	252; San Francisco community college
District 	(1979) 	PERB Decision N O . 	105. 	Prior 	to arriving at a
A4

firm 	decision 	to make 	a 	change 	in 	a 	matter 	within 	the 	scope 	of
representation, 	an 	employer 	must 	provide 	the 	exclusive
representative 	of 	its 	employees with 	notice 	of 	the 	proposed
change 	and 	a 	reasonable 	opportunity 	to 	negotiate 	over 	the
change. 	Arcohe Union 	School 	District 	(1983) 	PERB Decision
No. 	360; 	Arvin Union School District 	(1983) 	PERB Decision
No. 300; Los Angeles, supra.
Relying 	on 	common 	law agency principles, 	the Board 	has
previously 	held 	that 	notice 	to 	employees 	not 	holding 	any
official 	position 	in 	the 	employee 	organization 	is 	insufficient.
See, 	e.g., Arcohe, 	supra, 	and Los Angeles, 	supra. 	We take this
opportunity 	to 	further 	clarify 	the 	character 	of 	the 	notice
required 	prior 	to making 	a 	change 	in 	a 	matter within 	the 	scope
of 	representation.
Notice 	of 	a proposed 	change must 	be 	given 	to 	an 	official 	of
the 	employee 	organization 	who 	has 	the 	authority 	to 	act 	on 	behalf
of 	the 	organization. 	The 	notice must 	be 	communicated 	in 	a manner
which 	clearly 	informs 	the 	recipient 	of 	the 	proposed 	change. 	Even
in 	the absence 	of 	formal 	notice, 	proof 	that 	such 	an 	official 	had
actual 	knowledge 	of 	the proposed 	change will 	suffice. 	Notice
must 	be 	given 	sufficiently 	in 	advance 	of 	a 	firm 	decision 	to make
a 	change 	to 	allow 	the 	exclusive 	representative 	a 	reasonable
amount 	of 	time 	to 	decide whether 	to make 	a 	demand 	to negotiate.
What 	constitutes 	a 	"reasonable 	amount 	of 	time" 	necessarily
depends 	upon 	the 	individual 	circumstances 	of 	each 	case. 	As
waiver 	is 	an 	affirmative defense, 	an 	employer 	asserting a waiver
un	5

of 	the 	right 	to 	bargain 	properly bears 	the 	burden 	of 	proving
that 	the 	exclusive 	representative 	failed 	to 	request 	bargaining
despite 	receiving sufficient 	notice of 	the 	intended change.5 5
In 	the present 	case, 	it was 	not 	proven 	that 	any official 	of
the 	Association 	was 	given 	formal 	notice 	or 	had 	actual 	knowledge
of 	the proposed 	change 	in 	instructional 	minutes. 	While Don
Wilson 	was 	a member 	of 	the Association's 	bargaining 	team 	for 	the
1984-86 	contract, 	it was 	not 	shown 	that 	he 	had assumed 	his
duties 	prior 	to 	the 	District's 	firm decision 	on 	December 	27,
1983, 	nor 	that 	he 	had 	the 	requisite 	authority to act 	on 	behalf
of 	the 	Association. 	Though 	the Association 	received 	agendas 	for
the 	District 	board's 	December 	13 	and 	27 	meetings, 	the 	District
failed 	to 	demonstrate 	that 	the 	agendas 	clearly 	informed 	the
Association 	of 	the 	proposed 	increase 	in 	instructional 	minutes.66
There 	was 	no 	evidence 	that 	any Association 	representative
attended 	either 	meeting.
5Walnut Valley Unified 	School 	District 	(1983) 	PERB
Decision No. 	289; 	Brawley Union High School 	District 	(1982) 	PERB
Decision No. 	266; 	NLRB v. 	Transportation Management Corp. 	(1983)
462 U.S. 	393; Witkin, 	California Evidence 	(2nd Ed.) 	p. 	180;
California 	Evidence 	Code 	section 	500.
6Citing 	Arvin, 	supra, 	the ALJ 	concluded 	that 	references 	in
District 	board 	agendas 	do 	not 	constitute 	sufficient 	notice 	to
employee 	organizations. 	We 	find 	this 	reading of Arvin 	to 	be 	too
broad. 	Arvin 	involved 	the mere 	posting 	of 	agendas 	at 	various
school 	sites. 	An 	agenda may suffice 	if 	it 	is 	delivered 	to a
proper 	official 	and 	is 	presented 	in 	a 	manner 	reasonably
calculated 	to 	draw attention 	to 	any 	item(s) 	reflecting 	a
proposed 	change 	in 	a matter 	within 	the 	scope 	of 	representation.
66

Refusal 	to 	Negotiate 	Release 	Time 	for
the 	October 	29 	Negotiating 	Session
The ALJ 	found 	that, 	while 	an 	earlier 	refusal 	by 	the 	District
to grant 	additional 	release time was 	reasonable, 	its 	refusal 	to
consider 	release 	time 	for 	an 	October 	29, 	1984 meeting without
the 	presence 	of 	a 	PERB-appointed 	mediator 	reflected 	unlawful
inflexibility 	in 	light 	of 	changed 	circumstances. 	However, 	since
the 	refusal 	to 	consider 	additional 	release 	time 	took 	place
during 	the 	statutory 	impasse 	procedures 7 and 	did 	not 	involve 	a
formal part 	of 	those 	procedures, 	there 	can 	be no violation.
EERA section 	3543.l(c) 	provides 	that:
A 	reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the
right 	to 	receive 	reasonable 	periods 	of
released 	time 	without 	loss 	of 	compensation
when 	meeting 	and 	negotiating 	and 	for 	the
processing 	of 	grievances. 	(Emphasis 	added.)
The 	Board 	has 	held 	that 	the 	subject 	of 	release 	time 	is
within 	the 	scope 	of 	representation. 	Anaheim Union 	High 	School
District 	(1981) 	PERB Decision No. 	177.
While 	section 	3543.l(c) 	speaks 	of 	the 	right 	to 	reasonable
release 	time 	"when 	meeting 	and 	negotiating," 	this 	right
logically 	applies 	only when 	the 	"meeting 	and 	negotiating" 	in
question 	is 	required 	by the Act. 	Assuming 	that 	the agreement 	to
"negotiate" 	on 	October 	29 	did not 	break 	the 	impasse 	between 	the
parties, 	the duty to 	bargain was dormant 	because 	the parties
7EERA 	section 	3548 	et 	seq.
7

were 	in 	the midst 	of 	the 	statutory 	impasse 	procedures.8 The
only 	duty 	was 	to participate 	in 	good 	faith 	in 	the 	impasse
procedures.9 Moreno Valley 	Unified 	School 	District 	v. 	PERB
(1983) 	142 	Cal.App.3d 	191. 	Since meetings without 	the appointed
mediator 	are 	not 	required 	by 	the 	statutory 	impasse procedures,
the 	District's 	denial 	of 	release 	time 	did 	not 	constitute 	bad
faith.
In 	sum, 	because 	the duty 	to 	bargain was 	suspended 	by 	the
parties' 	impasse 	and 	because meetings 	without 	the 	appointed
mediator 	are 	not 	a 	required 	part 	of 	the 	statutory 	impasse
procedures, 	the 	District 	was 	under 	no obligation 	to consider 	or
to 	grant 	release 	time 	for 	the 	October 	29 	meeting. 	We 	find 	no
basis 	for 	attaching 	any obligations 	or 	conditions 	upon 	the
District's 	otherwise 	purely 	voluntary 	participation.
Accordingly, 	we 	reverse the ALJ's 	finding 	of 	a 	violation.
8While 	the October 	29 	meeting was 	referred 	to as 	a
"negotiating 	session" 	by both parties, 	there was 	no evidence
that 	either 	party 	had 	revealed 	any 	proposed 	concessions
sufficient 	to 	break 	impasse 	at 	the 	time 	of 	the 	denial 	of
release time. 	Clearly, 	had 	impasse been 	broken, 	the duty to
bargain would 	have 	been 	revived, 	as 	would 	the 	duty 	to 	provide
reasonable 	release 	time. 	However, 	the 	record does 	not 	reflect
that 	impasse was 	broken. 	It merely 	reflects 	that 	the parties
agreed 	to 	meet 	without 	the 	appointed 	mediator.
9Failure 	to participate 	in 	good 	faith 	in 	the 	statutory
impasse 	procedures 	is 	a 	specifically 	enumerated 	unfair 	practice
pursuant 	to EERA section 	3543.5(e).
CO
	8

ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and pursuant 	to EERA section
3541.5(c), it 	is 	hereby ORDERED 	that 	the Victor Valley 	Union
High 	School 	District, 	its 	governing 	board 	and 	its
representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in 	good 	faith
with 	the 	Victor 	Valley 	Teachers 	Association 	concerning 	the
amount 	of 	paid 	non-instructional 	time 	and 	the 	number 	of 	paid
non-student 	workdays.
2. 	Denying 	the 	Victor 	Valley Teachers 	Association 	the 	right
to 	represent 	the 	employees 	by 	failing 	and 	refusing 	to meet 	and
negotiate 	in 	good 	faith 	concerning 	the 	amount 	of 	paid
non-instructional 	time 	and 	the 	number 	of 	paid 	non-student
workdays.
3. 	Interfering with 	employees 	in 	the 	exercise 	of 	rights
guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act 	by
failing 	and 	refusing 	to meet 	and 	negotiate 	with 	the Victor
Valley 	Teachers 	Association 	concerning 	these 	subjects.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE ACTIONS 	DESIGNED 	TO EFFECTUATE
THE 	POLICIES 	OF 	THE EDUCATIONAL 	EMPLOYMENT RELATIONS 	ACT:
1. 	Upon 	request, 	meet 	and 	negotiate with 	the 	exclusive
representative 	concerning 	the 	amount 	of 	paid 	non-instructional
time 	and 	the 	number 	of 	paid 	non-student 	workdays.
2. 	Reinstate 	the 	amount 	of paid 	non-instructional 	time 	in
effect 	prior 	to January 3, 	1984, 	and 	the 	number 	of paid
9

non-student 	workdays 	prior 	to 	the 	first 	day 	of 	classes 	in 	effect
prior 	to 	the 	1984-85 	school year, 	until 	such 	time as 	the parties
reach 	agreement 	or 	negotiate 	through 	completion 	of 	the 	statutory
impasse 	procedure 	concerning 	the 	subject 	matter 	of 	the 	unilateral
change. 	However, 	the status quo ante shall 	not 	be 	restored 	if,
subsequent 	to the District's 	actions, 	the parties 	have, 	on 	their
own 	initiative, 	reached 	agreement 	or 	negotiated 	through
completion 	of 	the 	impasse 	procedure 	concerning 	non-instructional
time 	and 	non-instructional 	workdays.
3. 	Grant 	to 	each 	of 	the 	employees 	harmed 	by 	the 	unilateral
change 	the 	amount 	of 	time 	off which 	corresponds 	to 	the 	number 	of
extra 	hours 	worked 	as 	a 	result 	of 	the 	increase 	in 	class 	time
implemented on January 3, 	1984, 	and as a 	result of the 	'
elimination 	of 	two 	non-student 	workdays 	prior 	to 	the 	commencement
of 	classes 	in 	September 	1984. 	Should 	the parties 	fail 	to 	reach
a 	satisfactory 	accord 	as 	to 	the manner 	in 	which 	such 	time 	off
will 	be 	granted 	or 	if 	an 	individual 	is 	no 	longer 	in 	the
District's 	employ, 	then 	such 	employees 	will 	be 	granted monetary
compensation 	commensurate 	with 	the 	additional 	hours 	worked.
However, 	if 	subsequent 	to 	the District's 	unlawful 	action 	the
parties have, 	on their own 	initiative, 	reached agreement or
negotiated 	through 	the 	completion 	of 	the 	statutory 	impasse
procedure 	concerning 	these subjects, 	then 	liability for
compensatory 	time 	off 	or 	back 	pay 	shall 	terminate 	at 	that
point. 	Any monetary payment 	shall 	include 	interest 	at 	the 	rate
of 	ten 	(10) 	percent per annum.
10

4. 	Mail 	copies 	of 	the attached 	Notice 	to 	the 	employees
affected 	by 	the 	District's 	conduct 	within 	ten 	(10) 	calendar 	days
after 	this 	Decision 	is 	no 	longer 	subject 	to 	reconsideration.
5. 	Within 	thirty-five 	(35) 	days 	following 	the date 	this
Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post 	at 	all
work 	locations 	where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the Notice attached 	as 	an Appendix 	hereto,
signed 	by 	an 	authorized 	agent 	of 	the 	employer. 	Such 	posting
shall 	be maintained 	for 	a period 	of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	this
Notice 	is not 	reduced 	in 	size, 	defaced, 	altered or covered by
any material.
6. 	Written 	notification 	of 	the 	actions 	taken 	to 	comply with
this 	Order 	shall 	be made 	to 	the 	regional 	director 	of 	the 	Public
Employment 	Relations 	Board 	in 	accordance 	with 	his 	instructions.
It 	is 	further 	ORDERED 	that 	all 	other 	allegations 	in 	Case
Nos. 	LA-CE-1974, 	LA-CE-1995 	and LA-CE-1996 	are hereby DISMISSED.
The Association's 	request 	for 	oral 	argument 	pursuant 	to 	PERB
Regulation 	32315 	is 	DENIED, 	as previously 	communicated 	to 	the
parties 	by 	letter 	dated February 27, 	1986.
This 	Order 	shall 	be 	effective 	immediately 	upon 	service 	of 	a
true 	copy 	thereof 	upon 	the 	Victor 	Valley 	Union 	High 	School
District.
Members 	Burt 	and 	Craib 	joined 	in 	this 	Decision,
11

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in Unfair Practice Case Nos. 	LA-CE-1974,
LA-CE-1995 	and 	LA-CE-1996, 	Victor 	Valley 	Teachers 	Association 	v.
Victor Valley Union 	High 	School 	District, 	in 	which 	all 	parties
had 	the 	right 	to participate, 	it 	has 	been 	found 	that 	the Victor
Valley Union 	High 	School 	District 	violated 	section 	3543.5(a), 	(b)
and 	(c) 	of 	the Educational 	Employment Relations 	Act.
As a 	result 	of 	this 	conduct, 	we 	have been ordered 	to post
this 	Notice 	and will 	abide 	by the 	following. 	We will:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in 	good 	faith
with 	the Victor 	Valley Teachers 	Association 	concerning 	the
amount 	of 	paid 	non-instructional 	time 	and 	the number 	of 	paid
non-student 	workdays.
2. 	Denying 	the Victor 	Valley Teachers 	Association 	the
right 	to 	represent 	the employees 	by 	failing 	and 	refusing 	to
meet 	and 	negotiate 	in 	good 	faith 	concerning 	the 	amount 	of 	paid
non-instructional 	time 	and 	the 	number 	of 	paid 	non-student
workdays.
3. 	Interfering with 	employees 	in 	the 	exercise 	of 	rights
guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act 	by
failing 	and 	refusing 	to meet 	and 	negotiate 	with 	the Victor
Valley 	Teachers 	Association 	concerning 	these 	subjects.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE
THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT RELATIONS 	ACT:
1. 	Upon 	request, 	meet 	and 	negotiate with 	the exclusive
representative 	concerning 	the 	amount 	of 	paid 	non-instructional
time 	and 	the 	number 	of 	paid 	non-student 	workdays.
2. 	Reinstate 	the 	amount 	of paid 	non-instructional 	time 	in
effect 	prior 	to January 	3, 	1984, 	and 	the number 	of paid
non-student workdays 	prior 	to 	the first 	day of 	classes 	in 	effect
prior 	to 	the 	1984-85 	school year, 	until 	such 	time as 	the parties
reach 	agreement 	or 	negotiate 	through 	completion 	of 	the 	statutory
impasse 	procedure 	concerning 	the 	subject 	matter 	of 	the 	unilateral
change. 	However, 	the 	status 	quo ante 	shall 	not 	be 	restored 	if,
subsequent 	to the District's actions, 	the parties have, 	on 	their
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own 	initiative, 	reached agreement 	or 	negotiated 	through
completion 	of 	the 	impasse 	procedure 	concerning 	non-instructional
time 	and 	non-instructional 	workdays.
3. 	Grant 	to 	each 	of 	the 	employees 	harmed by 	the 	unilateral
change 	the 	amount 	of 	time 	off 	which 	corresponds 	to 	the 	number 	of
extra 	hours worked 	as 	a 	result 	of 	the 	increase 	in 	class 	time
implemented on January 3, 	1984, 	and as a 	result of the
elimination 	of 	two 	non-student 	workdays 	prior 	to 	the 	commencement
of 	classes 	in 	September 	1984. 	Should 	the parties 	fail 	to 	reach
a 	satisfactory 	accord 	as 	to 	the manner 	in 	which 	such 	time 	off
will 	be 	granted 	or 	if 	an 	individual 	is 	no 	longer 	in 	the
District's 	employ, 	then 	such 	employees 	will 	be 	granted monetary
compensation 	commensurate 	with 	the 	additional 	hours 	worked.
However, 	if 	subsequent 	to 	the District's 	unlawful 	action 	the
parties 	have, 	on 	their own 	initiative, 	reached agreement 	or
negotiated 	through 	the 	completion 	of 	the 	statutory 	impasse
procedure 	concerning 	these 	subjects, 	then 	liability 	for
compensatory 	time 	off 	or 	back 	pay 	shall 	terminate 	at 	that
point. 	Any monetary payment 	shall 	include 	interest 	at 	the 	rate
of 	ten 	(10) 	percent per annum.
Date: 	VICTOR VALLEY 	UNION 	HIGH 	SCHOOL 	DISTRICT
By Authorized 	Representative
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST 	NOT 	BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
22

STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTOR VALLEY 	TEACHERS
ASSOCIATION,
Charging 	Party,
v.
VICTOR VALLEY 	UNION 	HIGH 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-1974
LA-CE-1995
LA-CE-1996
PROPOSED 	DECISION
(1/28/85)
Appearances; 	Charles R. 	Gustafson, Attorney, 	for Victor Valley
Teachers Association; Janae Novotny, 	(Atkinson, Andelson, Loya,
Ruud 	& Romo), Attorney for 	the Victor Valley Union High School
District.
Before; 	Martin Fassler, Administrative Law Judge.
INTRODUCTION AND 	PROCEDURAL 	HISTORY
The 	charging 	party 	in 	these cases 	accused 	the 	respondent 	of
implementing 	two 	unlawful 	unilateral 	changes 	in 	teachers'
working 	schedules, 	one 	having 	to do with 	the 	school calendar,
the 	other 	having 	to do with 	the 	daily 	bell 	schedule 	at 	two
schools; 	of refusing, 	unreasonably, 	to allow the teachers'
negotiators 	to 	have 	release 	time 	from their 	assignments, 	beyond
a 	specific 	hour 	limit; 	and 	of 	retaliating 	against 	the 	teachers'
association by 	the 	refusal 	to grant 	release 	time 	to 	negotiators
for 	a 	specific meeting.
The 	first of 	the 	three charges 	herein was 	filed April 	26,
1984. 	In 	it, 	the Victor Valley Teachers Association 	(hereafter
" W T A " 	or 	"the Association") 	accused 	the Victor Valley Union
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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High 	School District 	(hereafter 	"the 	District") 	of 	unilaterally
adopting 	a 	new 	bell 	schedule 	which 	increased 	the 	instructional
time, 	and reduced the preparation time, 	for 	teachers at 	two of
the 	schools 	in 	the 	District. 	On May 	21 	the W T A 	filed 	two
charges. 	One 	alleged 	that 	the 	District 	had 	acted 	unreasonably
and 	illegally 	by 	refusing 	to 	allow 	release 	time 	for Association
negotiators, 	in connection with contract negotiations, 	beyond
an 	amount 	equivalent 	to 	four 	working days 	for 	each 	of 	five
negotiators. 	The 	final charge 	accused 	the District 	of
unilaterally 	and 	thus 	unlawfully 	adopting 	a calendar 	for 	the
1984-1985 	school year.
Complaints 	based 	on 	the 	three 	charges 	were 	issued 	in June
and 	July.
In 	its Answers 	to the Complaints, 	the 	respondent denied 	all
unlawful conduct. 	It 	admitted however, 	that 	in January 	1984
it 	increased 	the 	amount 	of 	"in classroom" 	instructional 	time
required 	of 	certain certificated employees; 	and 	that 	it
increased 	the 	number 	of 	classroom 	instruction days 	from 177 	in
the 	1983-1984 	school year 	to 	181 	in the 	1984-85 	school year.
At 	the 	same 	time, 	respondent 	asserted 	certain affirmative
defenses: 	(1) 	the 	number 	of days of classroom instruction
required 	of 	unit members 	is 	outside 	the 	scope of 	representation
as defined 	by 	the EERA; 	(2) 	the 	increase 	in the 	number 	of days
of classroom 	instruction was permitted 	under 	the 	terms 	of 	the
collective 	bargaining 	agreement 	then 	in effect; 	(3) 	the
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charging 	party waived 	its 	right 	to 	negotiate 	with 	respect 	to
the 	increase 	in 	the 	"in classroom" 	instructional 	time 	required
of 	teachers; 	and 	(4) 	the District was 	required by 	law to
increase 	the 	amount 	of 	instructional 	time per day.
The 	arguments 	of 	the 	charging party 	and 	the 	respondent 	will
be considered 	in detail 	in 	the 	"Discussion and Analysis"
section 	below.
Informal 	settlement 	conferences 	were 	held 	on July 	10 	and
September 	14, 	but the disputes were not resolved. 	The
complaints 	were 	consolidated 	for 	the 	hearing, 	which 	took 	place
on October 	24 	through 	26.
During 	the hearing, 	based 	on evidence of 	an 	incident which
took place 	on one 	of 	the 	hearing 	days, 	W T A 	moved 	to 	amend 	the
complaint 	to 	allege 	that 	the 	District 	had 	refused 	to 	allow
reasonable 	release 	time 	for 	the W T A 	negotiators, 	for 	a meeting
scheduled 	for October 	29, 	1984, 	and had done so 	in retaliation
for 	the W T A ' s 	filing 	of 	unfair 	practice 	charges 	against 	the
District. 	The motion was granted.
Both 	parties 	filed 	a 	post-hearing 	brief 	on 	January 	4,
1985. 	A 	final 	post-hearing 	reply 	brief 	was 	submitted 	by 	the
respondent on January 16, 	1985, 	and the matter was then
submitted.
FINDINGS 	OF 	FACT
A. 	The 	Class 	Schedule Change
The collective 	bargaining 	agreement 	between 	the 	District
W
	3

and 	the W T A 	which 	was 	in 	effect 	during 	the 	1983-84 	school 	year
had 	a 	one-sentence 	article 	entitled 	"Hours 	of Employment:"
All 	employees within 	the 	bargaining 	unit
shall 	be 	assigned 	a work 	day of 	not more
than 	six hours 	and 	twenty-five 	(25) 	minutes,
exclusive of lunch, 	staff meetings, 	and
non-paid 	extra 	duty.
Article VIII 	of 	the agreement, 	entitled 	"District Rights,"
included 	the 	following:
It 	is 	understood 	and 	agreed 	that 	the
District 	retains all of 	its powers \and
authority to direct, 	manage 	and control 	to
the 	full 	extent 	of 	the 	law. 	Included 	in but
not 	limited 	to 	those 	duties 	and powers 	are
the rights to: 	. 	. 	. 	determine times and the
hours of operation . 	. 	.
The 	introduction 	to 	the 	agreement 	states:
This 	agreement 	shall 	remain 	in 	force and
effect 	from October 	1, 	1981 	until
September 30, 	1984, 	or ratification of the
next contract.
The District's policy with 	respect 	to class 	schedules 	was
to 	allow each 	school principal 	to determine his or 	her 	school
schedule, 	within 	the 	limits 	set by the 	6-hour, 	25-minute
provision 	of 	the 	collective 	bargaining 	agreement.
The W T A ' s 	allegation with 	respect 	to 	bell 	schedules 	had 	to
do with 	the 	schedules 	at 	two of 	the District's 	schools, Apple
Valley High 	School 	and Victor 	Valley High 	School.
Prior 	to January 3, 	1984, 	the Victor Valley High School
class 	schedule 	began 	at 	7:25 	a.m., 	and 	ended 	at 	1:50 	p.m. 	Each
class period was 	54 minutes 	long; 	6 minutes was 	allotted for 	a
"passing 	period" 	between class periods. 	The 	faculty handbook
4

required 	each 	teacher 	to 	be 	"on duty" 	15 minutes prior 	to 	the
start of 	school, 	and 	at 	least 	10 minutes after 	the 	teacher's
last class or 	preparation period. 	Thus, 	each teacher's working
day 	began 	at 	7:10 	a.m., 	and 	ended 	at 	2:00 	p.m. 	Since 	each
teacher 	had 	a 	30-minute duty 	free 	lunch period, 	each 	teacher
had 	a 	schedule which 	included 	6 	hours 	and 	20 minutes 	of work
time.
A 	typical 	teaching 	schedule 	included 	5 	teaching 	periods 	and
one preparation period, 	which was also 	54 minutes 	long.
Presumably, 	the 15 minutes before 	the 	first class, 	and 	the
10 minutes 	after 	the class was 	time 	in which a teacher 	could
prepare lessons, 	grade papers, 	talk to students or
parents—perform 	the 	non-classroom 	duties 	which 	are 	necessary
parts of 	a 	teaching 	assignment. 	Total non-classroom
instruction 	time 	within 	the 	6-hour-20 	minute 	workday 	amounted
to 79 minutes: 	15 minutes at the beginning of the day, 	54
minutes during 	the day, 	and 	10 	minutes 	at the end of classes.
At Apple Valley High School, 	prior 	to January 3, 	1984, 	the
first 	class 	began 	at 	7:30 	a.m., 	and 	the 	last class 	ended 	at
2:54 	p.m. 	Although 	there 	was 	no 	testimony describing 	a 	typical
teaching 	day, 	it may be 	inferred 	that 	some 	teachers worked
periods 	1 	through 	6, 	while other 	teachers worked periods 	2
through 	7.1 A 	teacher working 	the 	"early" 	shift would
1
inference 	is 	based 	on Don Wilson's 	testimony 	about
the 	mechanics 	of 	a 	similar 	schedule 	at Victor Valley High
This
un
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have 	a 	workday 	of 	exactly 	six 	hours: 	7:24 	a.m., 	until
1:54 	p.m., 	excluding 	a 	30-minute 	lunch period. 	A 	teacher 	on
the 	"late" 	shift, 	would have 	a workday 	of 	exactly 	the 	same
length: 	from 	8:24 	a.m., 	until 	2:54 	p.m., 	excluding 	a 	30-minute
lunch 	period. 	Each 	teacher 	would 	have 	5 	classroom periods, 	and
a 	54-minute 	preparation 	period 	sometime 	during 	the 	school 	day.
The 	use 	of 	each 	teacher's 	preparation 	time 	was 	within 	the
discretion 	of 	the 	teacher; 	it was 	generally used 	for
preparation of 	lessons, 	grading 	of 	examinations 	or 	other
written work, 	or 	conferences 	with 	individual 	students.
On December 	27, 	1983, 	at 	the 	recommendation of 	the District
administration, 	the District 	board 	voted 	in 	favor 	of 	a
resolution 	which 	required 	the 	following:
(1) 	All class periods must be 	at 	least 	55
minutes 	long;
(2) 	Any 	four 	consecutive classes 	in 	the 	school
must 	be 	at 	least 	240 	minutes, 	including 	the
three 	passing 	periods 	between 	classes;
(3) 	Each 	senior 	must 	be 	enrolled 	in 	at 	least
five periods;
(4) 	Every 	other 	student must 	be 	enrolled 	in 	at
least 	six periods; 	and
School during 	the 	1984-85 	school year 	(TR: 	361-36 2) 	and 	on 	the
contract's 	6-hour 	and 	25-minute 	limit 	on 	the 	working 	day. 	A
teacher 	could 	not 	have 	a 	7:30 	to 	2:54 	schedule, 	because 	that
would 	amount 	to 	a workday, 	excluding 	lunch, 	of 	6 	hours 	and
54 	minutes. 	Transcript 	references will 	take 	the 	form
"TR: 	" 	with 	the page 	number 	following 	the 	abbreviation
TR."
6

(5) 	Any student may enroll 	in one 	less 	than
these 	minimum requirements if he 	or 	she 	is
enrolled concurrently 	in a college, 	ROP,
adult, 	or work-experience class.
Both 	the 	55-minute 	and 	the 	240-minute 	provisions 	required
changes 	in the class 	schedules 	at 	the 	2 high 	schools. 	Each
high school had class periods of 54 minutes, 	not 55 minutes;
and, 	if only 3 	passing periods between class periods were
included 	in a calculation of 	the 	time 	taken up by 	4 	consecutive
classes, 	the total fell 6 minutes short of 	240 minutes.
The December 	27 	resolution was prepared 	for 	the District 	by
John Kramar, 	assistant superintendent for 	instruction. 	Kramar
testified 	about 	the 	reasons 	the 	District 	adopted 	the 	changed
policy, 	as follows:
Education Code 	section 	46141 	requires 	that 	the 	minimum
school day 	in any high 	school, 	with 	exceptions 	not 	applicable
to 	either Victor 	Valley High 	School 	or Apple Valley High
School, 	be 	set 	at 	240 	minutes.2 Since the District's policy
2Section 	46141 	read, 	in 	its entirety:
The 	minimum 	schoolday 	in 	any 	high 	school,
except 	in an evening 	high 	school, 	a 	regional
occupational center, 	an opportunity school
and 	in opportunity classes, 	a continuation
high school, 	in continuation education
classes, 	in late afternoon or 	Saturday
occupationally 	organized 	vocational 	training
programs 	conducted 	under 	a 	federally
approved plan 	for 	vocational 	education, 	and
for 	students 	enrolled 	in 	a work 	experience
education 	program 	approved 	under 	the
provisions 	of Article 	7 	(commencing 	with
section 51760) 	of Chapter 	5 of Part 	28 of
this division, 	is 	240 minutes.
7

8
was 	to allow a senior 	to enroll 	in only 4 	classes, 	if he or 	she
also 	enrolled 	in certain outside programs, 	those 	seniors would
be 	at 	school 	for 	the 	required 	240 	minutes 	only 	if 	the 	6-minute
"passing 	period" 	prior 	to 	that 	student's 	first class were
included 	in 	the 	calculation. 	W
	3
No 	other 	students 	were 	in 	jeopardy of 	having 	less 	than 	240
minutes 	of 	school 	time. 	All other 	students were 	required 	to 	be
enrolled 	in at least 5 classes of 	54 minutes each, 	a total of
270 	minutes without 	counting 	any passing 	time.
Kramar 	testified 	that 	sometime 	in 	the 	fall of 	1983 	he
received, 	from the County Board 	of Education, 	a memorandum from
the 	state department 	of 	education, 	saying 	that 	the passing 	time
prior 	to 	a 	student's 	first class could 	not 	be counted 	as 	part
of 	the 	240-minute 	minimum. 	The 	memorandum was 	not 	placed 	in
evidence.
Kramar 	testified 	that 	if 	the District 	did 	not change 	its
high 	school class 	schedules 	to comply with 	these 	state
requirements, 	the District 	stood 	to 	lose a 	sizeable 	amount of
aid money 	from the 	state, 	through 	the 	"ADA" 	(average daily
attendance) 	program. 	In addition, 	he 	said, 	the District might
3That 	is, 	4 periods of 54 minutes each, 	or 	216 minutes,
plus 	4 	6-minute passing periods, 	for 	a total of 	240 minutes.
Without 	including 	the 	"passing 	period" 	prior 	to 	the 	first
class, 	the total would be 	234 minutes.
Kramar 	testified 	there 	were 	approximately 	160 	students
enrolled 	in 	the 	outside programs, 	but cautioned 	that 	the 	number
was 	an estimate.
8

be 	subject 	to 	a 	state effort 	to 	recoup money given 	to 	the
District while 	the District's minimum day was 	too 	short 	for
certain 	students.
Except 	for 	placing 	the 	matter 	on 	the 	Board 	of 	Trustees
formal meeting 	agenda, 	the District made 	no effort 	to 	inform
the Association of 	its 	intention 	to 	increase class 	time, 	or 	to
give 	the Association 	an 	opportunity 	to 	negotiate 	about 	the
subject.
On 	the 	first day after 	the Christmas vacation, 	the
principals 	of Apple 	Valley 	High 	School 	and Victor 	Valley High
School 	put 	into 	effect 	new bell 	schedules. 	At Victor Valley
High School, 	the 	first class period began at 	7:25 	a.m., 	as
before. 	However, 	the 	last period ended at 	2:01 p.m., 	rather
than at 	1:50 	p.m., 	as 	it 	had 	earlier. 	Each class period was
now 56 minutes 	in 	length. 	As 	before, 	the passing 	time
designated 	for 	between classes was 	6 	minutes. 	The 	lunch period
was 30 minutes.
As 	a result 	of 	the changes, 	each 	teacher 	with a 	typical
full 	schedule was 	required 	to 	teach 	five 	56-minute periods, 	for
a 	total 	of 	280 	minutes per 	day. 	Prior 	to 	the Christmas 	break,
each 	teacher 	was 	required 	to 	teach 	five 	54-minute periods, 	for
a 	total 	of 	270 	minutes per 	day. 	Beginning January 3, 	each
teacher 	had 	a 	56-minute preparation period, 	as compared 	to 	the
54-minute 	preparation period 	available 	prior 	to 	the Christmas
holiday 	break. 
9

At Victor Valley, 	Don Wilson, 	a member 	of 	the W T A
negotiating 	team 	and 	a 	long-term 	science 	teacher 	in 	the
District, 	asked 	Principal Julian Weaver 	whether 	the 	section of
the 	faculty manual which 	required 	teachers 	to 	report 	for 	duty,
15 minutes before the 	beginning of classes, 	and 	to 	remain at
school 	for 	10 	minutes 	after 	the 	last class or preparation
period 	remained 	in effect. 	Weaver, 	after 	conferring 	with
Kramar 	told Wilson 	that provision would 	not 	be 	enforced.
Weaver 	testified 	he 	has 	not made 	any 	effort 	to 	enforce 	that
provision of 	the 	teacher's manual, 	although he 	inadvertently
neglected 	to 	remove 	that 	requirement 	from 	the manual
distributed 	to 	teachers 	at 	the 	high 	school 	at 	the 	beginning 	of
the 	1984-1985 	school year. 	Also, 	Weaver 	testified he 	never
made 	a general 	announcement 	to 	teachers 	at 	the 	school 	that 	the
section was not 	in effect.
Apple 	Valley High 	School 	also 	adopted 	a 	schedule 	which
included class periods of 	56 minutes, 	rather 	than the
54 minutes previously assigned. 	As 	a 	result, 	the 	"early"
schedule 	began 	at 	7:24 	a.m., 	and continued 	until 	the 	end 	of 	the
sixth 	class period 	at 	2:06 p.m. 	Teachers 	on 	this 	schedule 	thus
have 	a workday of 	6 	hours and 	12 minutes, 	excluding 	a 30-minute
lunch period, 	and one preparation period of 	56 minutes.
Teachers 	on 	the 	late 	schedule 	began 	their 	workday 	at 	8:26 	a.m.,
and 	continued 	until 	3:08 	p.m. 	Excluding 	the 	30-minute 	lunch
period, 	they, 	too, 	had a 6 hour and 12 minute day, 	and a
10

56-minute 	preparation period. 	Like 	the 	teachers 	at Victor
Valley High School, 	teachers now had 	a day of 	280 	minutes 	of
classroom contact 	time.
Two 	teachers 	testified 	about 	the 	impact 	which 	the 	Board's
decision 	to 	lengthen class periods 	had 	on 	their 	work.
Helen Laney, 	a 	typing 	teacher 	in her 	fourteenth year 	with 	the
District, 	testified 	that 	after 	the 	Board 	voted 	to 	lengthen 	the
class periods, 	she had to 	revise her 	lesson plans 	to 	fit 	the
longer hour. 	Generally, 	she said, 	the 	lessons 	in the typing
textbooks 	are designed 	for 	48 	to 	51-minute periods. 	To 	fill
out 	the 	54-minute 	periods, 	she 	had 	customarily added 	specific
exercises 	from earlier 	lessons 	which 	the 	students 	had 	had
trouble with. 	As a' result of 	the 	longer class periods after
January 	2, 	Laney 	said 	she 	was 	required 	to 	revise 	(expand) 	those
extra 	assignments which 	she 	had 	already chosen, 	so 	that 	the
students would not have unused class 	time. 	(TR: 	19 2-200.)
Don Wilson, 	a 	science 	teacher 	at Victor Valley High 	School
in his 	twenty-first year 	with 	the District, 	testified 	that 	the
schedule change made 	his work more difficult 	in two ways. 	The
slightly 	longer 	periods 	required 	additional 	preparation 	on 	his
part to prepare longer lectures 	for each class 	(TR: 	208).
Second, 	by 	eliminating 	the 	10-minute 	non-teaching 	time 	at 	the
end 	of 	the workday, 	it eliminated 	time during 	the workday when
teachers prepared progress 	reports 	for 	students, 	graded papers,
11

or 	carried 	out 	similar 	chores. 	He 	now carries 	out 	those 	tasks
after 	the 	regular 	workday, 	Wilson testified.
Aside 	from these details, 	though, 	the witnesses who
testified 	on 	the 	subject, 	including 	the 	District's Assistant
Superintendent 	Kramar, 	shared 	an 	understanding 	that 	fulfillment
of 	a 	teacher's 	responsibilities, 	as 	these 	are understood 	by the
Victor Valley Union High 	School 	District 	requires 	more 	time
than 	the 	6 	hours 	and 	25 minutes daily 	specified 	in 	the
contract. 	This was Kramar's 	testimony:
Q. 	(by W T A 	counsel) : 	And 	the District gave
the 	teachers 	enough work 	to do, 	so they had
work 	to do for 	the 	6 	hours and 	25 minutes.
And 	some 	of 	them even work 	longer 	than 	that?
A. 	It's 	our 	intention 	that 	there's 	enough work
for 	them to do. 	I 	haven't had 	any complaint
that 	there 	wasn't. 	And having 	been a
teacher myself, 	there's always more 	than
what you do 	at 	school. 	That's part of 	being
a professional.... 	As a math teacher, 	as a
chemistry teacher, 	there were times when I
graded papers at home, 	I prepared
examinations. 	I prepared lesson plans.
That's part of 	being 	a 	teacher.
Q. 	Those 	were 	things you didn't have 	time 	to do
during 	the 	regular 	work 	day.
A. 	Absolutely. 	(TR: 	183-184)
Both 	Wilson 	and 	Laney 	testified 	that 	they 	regularly 	work 	at
home 	to 	complete 	or 	prepare 	work 	required 	by 	their 	jobs.
B. 	Released Time Made Available 	by 	the 	District
During 	negotiations 	for 	the 	1978-79 	collective 	bargaining
agreement 	between 	the W T A 	and 	the 	District, 	the 	District
12

allowed W T A 	negotiators 	50 	hours 	release 	time 	to 	take part 	in
negotiations. 	During 	the 	1980 	negotiations, 	four W T A
negotiators 	were 	each given 	four 	days of 	release 	time.
Assuming 	the workday in 1980, 	as 	it was 	in 1983, 	was between
6 hours and 	6 	and 1/2 hours, 	that amounted 	to a 	total of
between 	96 	and 	100 	hours 	release 	time. 	A 	full 	agreement
between 	the 	two 	parties 	was 	reached 	within 	that 	(approximate)
100-hour 	period.
During negotiations which began 	in the 	spring 	of 	1981, 	the
District 	again 	gave 	release 	time 	to 	four 	W T A 	negotiators, 	for
four 	days 	each. 	Although 	the 	District 	and 	the W T A 	did 	not
reach 	agreement during 	those 	four meetings, 	they reached
agreement 	during 	a 	later 	meeting 	which 	took 	place 	with 	the
assistance 	of 	a PERB-appointed mediator. 	The District 	also
provided 	release 	time 	to 	the W T A 	negotiators 	for 	this meeting
with 	a mediator.
Efforts 	by 	the 	District 	and W T A 	to 	reach 	agreement 	on
release 	time 	for 	negotiations 	on 	the 	1984-85 	contract 	began 	in
early April 1984. 	Michael Kilgore, 	the District's chief
negotiator, 	and Julie McGill, 	W T A ' s chief negotiator, 	met 	in
Kilgore's 	office during 	the 	first week of April. 	They began by
discussing 	the 	ground 	rules 	used 	by 	the parties during 	the 	last
round 	of 	negotiations. 	They 	apparently 	agreed 	that most of 	the
rules 	were 	not 	needed, 	or 	that agreement could 	not 	be 	reached
on most 	of 	them.
13

On April 	11, 	Kilgore 	sent McGill a ground 	rule proposal
which 	included 	only 	three proposed ground 	rules. 	Since 	the
only 	relevant 	aspect 	of 	the 	ground 	rule 	negotiations 	has 	to 	do
with 	scheduling 	and 	release 	time, 	no other ground 	rules will 	be
discussed 	herein.
Kilgore's 	proposal 	suggested 	four 	meeting 	dates—May 	1, 	at
7:30 a.m., May 14, 	24, 	and 31, 	and a meeting on June 	8, 	if
needed, 	as 	a 	"non-paid release day." 	The District proposed 	to
limit 	release 	time 	to 	four 	working 	days 	for 	each 	of 	five W T A
negotiators. 	Since 	a 	teacher's working day, 	as provided by the
contract 	in effect, 	was 6 hours and 	25 minutes, 	the District
was 	offering 	slightly more 	than 	128 	hours 	of 	released 	time. 4
W T A 	on April 	13 	sent Kilgore 	a 	counter 	proposal. 	This
suggested 	six meeting 	dates 	(including 	four 	of 	the 	five
suggested by Kilgore) ; 	and 	release 	time for 	five W T A
negotiators, 	with no 	specific limit on 	the number 	of days or
hours 	for 	which 	release 	time would 	be 	given.
Kilgore 	sent 	a 	reply 	to 	W T A 	which 	was 	virtually 	identical
with his 	first proposal: 	it 	suggested 	the 	same 	four 	dates 	and
the 	fifth, 	if necessary, 	as a 	"non-paid release day." 	It
retained 	the 	initial 	District 	language 	limiting 	release 	time 	to
four 	working 	days 	for 	each of 	five 	negotiators.
4 The 	total of 	128 	hours 	is 	reached 	by multiplying 	6 	hours
and 	25 minutes by 4 	(25 hours, 	40 minutes) 	and then multiplying
this 	figure by five.
14

W T A ' s 	reply 	to 	Kilgore made 	this main point:
Since 	the main 	issue 	is contract
negotiations and not ground 	rules, 	we 	feel
that 	the ground 	rules 	should 	be 	eliminated
and 	that we 	begin 	negotiations 	as 	soon 	as
possible.
On April 	23 Kilgore 	sent McGill another 	note, 	repeating 	the
District's previous positions 	exactly, 	except 	that 	the proposed
fifth day of 	negotiating was 	not mentioned. 	On April 	27,
McGill wrote 	to Kilgore, 	again asking 	to eliminate ground 	rules
for 	the 	negotiations 	and 	to 	begin negotiations on May 	3 	or
May 	4.
Kilgore 	and McGill met 	on April 	30. 	Kilgore 	indicated 	the
District's 	final offer 	on 	release 	time was 	120 	hours maximum
for 	the 	negotiators 	as a whole. 	He 	told McGill 	the District
would provide 	no 	release 	time 	at 	all 	until 	the parties 	reached
agreement 	on ground 	rules, 	including 	one 	concerning 	release
time.
55 McGill 	said 	the Association's 	position was 	that 	there
should 	be 	no 	specific 	hourly 	limitation on 	release 	time. 	She
testified:
There were 	too many 	issues 	to 	be 	discussed.
And 	we 	wanted 	release 	time 	on 	a day 	to day
basis, 	if that was necessary to get a
contract settled. 	(TR: 	129.)
McGill 	told 	Kilgore 	the District 	should 	grant 	release 	time
without 	requiring 	the 	teachers 	to agree 	to a 	specific 	limit.
5This 	finding 	is 	based 	on 	testimony by McGill. 	Kilgore
was 	not 	asked 	about 	this meeting.
15

On May 1 McGill wrote 	to 	Kilgore 	again, 	repeating 	the
Association's 	position. 	W T A 	believed 	the 	District's 	proposed
limit 	on 	the 	amount of 	release 	time 	available was 	not
reasonable. 	The Association was willing 	to meet on each 	of 	the
dates 	previously 	suggested, 	the 	earliest 	being May 4, then only
three days 	away. 	The Association 	indicated 	that 	it was willing
to begin negotiations during 	the day, 	or 	the evening,
suggesting 	that 	it might 	be 	willing 	to meet without 	release
time.
The 	next day, 	Kilgore wrote 	to McGill 	noting 	that 	the
District,
(I)ncreased 	the 	amount 	offered 	and 	paid
release 	time, 	for 	W T A 	certificated
negotiators 	from 100 	total hours 	to 	120
total hours.
Kilgore's 	memorandum 	also 	said 	that 	the 	District 	Board 	of
Trustees 	had 	reviewed 	the 	District's position 	and 	found 	it 	to
be 	"more 	than 	reasonable." 	Kilgore 	said 	the 	District 	was
willing 	to meet May 	4, 	"outside 	the contractual 	and
instructional work schedule," as well as on May 14, 	24, 	31, 	and
June 	8, 	on paid 	release time. 	On May 3, 	McGill sent Kilgore 	a
note which 	said 	the Association agreed 	to 	have 	the 	first
negotiating 	meeting 	with 	the District 	on May 	4, 	at 	6:00 	p.m.,
at 	the District 	office.66
6Some 	confusion 	apparently 	remained, 	since 	on May 	3,
Kilgore 	told 	W T A 	president 	Casi 	Wilson 	that 	the 	District 	would
not meet 	with W T A 	until 	the 	two 	parties 	had 	agreed 	on 	ground
16

The parties met 	on the 	evening 	of May 	4. 	At 	the 	end of 	the
meeting, 	which went 	from 6:00 	to 	11:00 	p.m., 	the W T A
negotiating 	team asked 	about 	release 	time 	for 	the 	following
meeting. 	Kilgore 	said 	the W T A 	negotiators 	would 	not 	be 	given
release 	time 	until 	the 	organization 	signed 	off 	on 	the ground
rules.7
McGill 	replied 	that 	the 	next meeting 	would 	again 	be 	in 	the
evening; 	that 	is, 	the W T A 	was 	not yet willing 	to 	sign off on
the ground 	rules, 	and 	since 	there would 	therefore 	be 	no
"release 	time" 	for 	negotiators, 	the next meeting would again
have to be 	in the evening.
The parties met 	again on May 	14, 	from 6:00 	to 	11:30 p.m.
No 	evidence 	was presented concerning 	events 	at 	this meeting.
On May 	21 	the Association 	filed 	the 	unfair 	practice 	charge
which 	underlies 	this proceeding. 	On May 	23 	Kilgore 	sent McGill
another 	memorandum 	in which 	he 	said 	the 	District Board 	of
Trustees 	had directed 	him to 	authorize 	100 	hours 	of 	paid
release 	time 	for negotiations, 	to be concluded on or 	before
June 13.
McGill 	and 	Kilgore met 	face 	to 	face 	later 	that day 	and
reached 	agreement 	on 	scheduling. 	This 	agreement 	is 	in evidence
rules. 	Five minutes 	later, 	Kilgore 	retracted this 	statement,
and 	told Wilson 	the 	W T A 	and 	the 	District 	would 	be 	meeting 	the
next day.
7Again, 	the 	finding 	is 	based 	on 	uncontradicted 	testimony
by McGill.
17

as Respondent's Exhibit 	4. 	It 	is 	in the 	form of 	a memorandum
from Kilgore 	to McGill, 	signed by McGill at the 	bottom. 	It
indicates 	that 	the parties agreed 	to meet on May 	29,, 	from
7:30 	a.m., 	until 	3:00 	p.m., 	on May 	31, 	from 7:30 	a.m., 	until
4:00 p.m., 	and 	on June 	8, 	beginning 	at 	7:30 	a.m., 	with no 	end
point 	designated. 	The memorandum also 	noted 	that 	each
teacher/negotiator 	had 	responsibility 	for 	"obtaining 	and
releasing 	substitutes." 	McGill 	testified 	that 	the 	last meeting
was 	left 	open-ended 	because 	neither 	negotiating 	team had 	any
other 	commitment 	which 	required 	an 	early 	end 	to 	the 	meeting,
and Kilgore 	and McGill hoped 	that 	if 	the parties 	were 	close 	to
an agreement, they would 	continue 	to meet 	for 	an 	extended period
of 	time. 	McGill also 	testified,
There was 	also 	talk 	that 	if 	we were close
after 	these 	three, 	there would be possibly
another day or 	two 	(of release time),
depending 	on 	how close 	we 	were 	to 	an
agreement. 	(TR: 137).
No provision of 	the 	memorandum refers 	to 	any 	limit 	on 	the 	use
or 	availability 	of 	District-paid 	release 	time.
The District 	and W T A 	met 	on May 	29 	for 	six 	and 	one-half
hours, 	on May 31 for 	seven and one-half hours, 	on June 8 	for
twelve hours 	and 	on June 	12 for 	seven hours, 	each of 	these
sessions 	beginning 	at 	7:30 	a.m. 	The 	District gave 	each 	of 	the
five W T A 	negotiators 	release 	time 	on each of 	these days. 	In a
summary chart placed 	in evidence, 	Kilgore calculated 	each day
at 6 hours and 	25 minutes. 	Therefore, 	the release time
18

associated with 	each 	negotiating 	day, 	taking 	5 	negotiators
together, 	was 	32 hours and 	5 minutes. 	The 	total 	release 	time
for all 	4 days amounted to 128 hours and 	20 minutes.
Kilgore 	testified 	that 	despite 	the 	Board's 	position 	of
wanting 	to limit release 	time 	for 	negotiations 	to 	100 	hours, 	he
acted 	on 	his 	own 	to 	allow the 	total 	release 	time 	figure 	to go
as high as 	128 	hours. 	He did 	so, 	he 	testified because he
believed, 	near 	the 	end of 	the June 	8 	session 	(which brought 	the
total release time to 96 hours-plus), 	that the two parties were
making progress 	in reaching an agreement. 	(TR: 	3 26.) 	Kilgore
said 	he 	reported 	this 	to 	the District Board 	after 	the 	fact, 	and
the 	Board 	approved 	it 	retroactively, 	but 	instructed Kilgore 	not
to 	agree 	to 	any 	additional release time 	without 	board 	approval
(TR: 	251.)
Although 	Kilgore's 	version of 	this 	sequence 	of 	events 	was
not contradicted 	by any other 	testimony, 	it does 	not 	square
with 	his 	own 	testimony 	in other 	respects. 	From the 	outset,
Kilgore, 	acting 	for 	the District, 	stated the District's
willingness 	to 	allow the W T A 	four 	days' 	release 	time 	for 	each
of 	five negotiators. 	Therefore, 	his assertion that the
granting of 	release 	time 	for June 	12, 	the 	fourth day of
negotiations, 	was done without prior authorization, 	cannot be
accurate. 	He 	was doing no more 	than 	the District had 	initially
offered 	to do. 	Similarly, 	Kilgore's 	statement 	(in his
testimony and 	in his May 	23 	note 	to McGill) 	that 	the Board
19

wanted 	to 	limit 	release 	time 	to 	100 	hours cannot 	be 	correct,
since 	the District's 	original offer 	of 	four 	full days 	for 	each
of 	five 	negotiators 	amounted 	to 	at 	least 	120 	hours of 	release
u
time.8 The District and W T A met again in negotiations on
August 	20 	from 9:00 	a.m. 	to 3:30 p.m.; 	on August 	24, 	for most
of 	the morning; 	and on August 30 	for 	five hours. 	No 	release
time 	was 	involved 	in 	any of 	these meetings.
The parties 	reached 	impasse, 	and PERB appointed 	a
mediator. 	The parties met with 	the mediator 	on October 	15
(nine days 	before 	this hearing commenced) 	for 	three hours 	in
the morning. 	The 	District granted 	the 	teacher-negotiators
release 	time 	for 	this meeting, 	in view of 	the District's belief
that participation 	in mediated 	negotiations 	with 	a
PERB-appointed 	mediator 	is 	a 	state-mandated 	program.
At 	a 	District 	board 	meeting 	the 	evening 	before 	this 	hearing
began, 	Scott Davis, 	the chief negotiator 	for 	the 	teachers,
asked 	the 	board 	to direct 	its 	negotiating 	team 	to 	return 	to 	the
negotiations 	with 	the W T A 	team, 	without 	the presence 	of 	a
mediator.9 Board Chairman Claude Noel 	responded
8Four 	days 	for 	each of 	5 	teachers 	amounts to 	128 	hours
plus, 	if a workday is taken to be 6 hours and 	25 minutes. 	If a
workday 	is 	taken 	to 	be 	6 	hours 	(see pages 	5-6 supra), 4 days
for 	each of 	5 	teachers amounts 	to 	120 	hours.
9 In 	October 	McGill 	was 	appointed 	by 	the 	District 	Board 	to
an 	administrative position. 	She 	was 	then 	replaced 	as W T A ' s
chief 	negotiator 	by Davis.
20

affirmatively, 	and 	suggested meeting 	the 	next day. 	Davis 	and
District 	Superintendent 	Tarr 	both pointed 	out 	that 	this 	unfair
practice 	hearing 	was 	scheduled 	to 	take place 	the 	next 	three
days, 	Wednesday 	through Friday. 	Noel then 	suggested a meeting
the 	following Monday, 	October 	29, 	which Davis agreed 	to.
Although 	there 	was 	no 	explicit 	statement during 	the 	meeting
about 	the time of the negotiation session, 	Davis, 	and
apparently 	other 	teachers 	who 	were present 	at 	the meeting,
assumed 	the 	board 	intended 	to meet 	on Monday morning; 	they 	also
assumed 	that 	release 	time would 	be given 	to 	the 	negotiators.
After 	the meeting, 	Davis 	received 	a 	telephone call 	from
Kilgore, 	who 	suggested a meeting 	beginning 	at 3:00 	or 	3:30 p.m.
There 	is 	a conflict 	in 	the 	testimony of Davis 	and Kilgore 	about
the 	substance 	of 	the conversation with 	respect 	to 	release
time. 	Davis 	testified he 	asked 	why 	there 	would 	be 	no 	release
time 	(Davis 	apparently 	assumed 	that 	for 	a meeting 	scheduled
outside class hours no release time may be granted).10	10
Kilgore 	said, 	according 	to Davis, 	that the Board voted
unanimously 	not 	to 	allow 	release 	time.
Kilgore, 	on the other 	hand, 	testified that he 	explained to
Davis 	that 	there 	would 	be 	no 	release 	time 	because 	the meeting
10This 	assumption 	is 	not correct. 	In Sierra Joint
Community College District 	(11/5/81) 	PERB Decision No. 	179, 	at
pp. 	4-6, 	PERB 	indicated that 	release 	time may be 	granted 	for
time 	spent on negotiations, 	even 	if negotiating 	sessions and
teaching 	duties 	do 	not 	actually coincide.
21

was 	taking place 	without 	a mediator. 	Kilgore 	specifically
denied 	that 	the 	Board 	had 	voted 	to 	deny 	release 	time 	to
retaliate 	against 	the W T A 	for 	the 	filing 	of 	of 	the 	unfair
practice 	charge which 	underlies 	this case.11	11 Kilgore did 	not
specifically deny 	telling 	Davis 	that 	the 	trustees 	had 	voted 	on
whether 	to grant release time, 	"retaliation" 	aside.
It 	is 	not 	necessary 	to 	resolve 	this possible conflict 	in
the 	evidence. 	What 	is undisputed 	is 	that Kilgore 	told Davis
the District 	would 	not grant 	release 	time 	for 	the meeting
scheduled to 	take place on Monday, 	October 	29.
On October 	25, 	two days after 	the Board meeting 	at which
the 	negotiating 	meeting 	was 	arranged, 	Casi Wilson asked
superintendent 	Tarr 	why 	the October 	29 	session could 	not 	begin
in 	the morning, 	with 	release 	time given 	to the W T A
negotiators. 	Tarr 	told Wilson that 	the District could not, 	or
would 	not, 	give 	release 	time 	for 	that 	session because 	there was
an 	unfair 	practice 	charge 	pending 	regarding 	release 	time.
Wilson and McGill 	(who overheard 	the 	exchange) 	both 	testified
to 	this 	conversation 	having 	taken place.
11	ll 0.	Q. 	(by District counsel) . 	In your telephone
conversation with Mr. 	Davis, 	did you 	inform him that
negotiations 	could 	not begin on 	the morning 	of 	October 	29,
since 	the 	governing 	board 	had 	voted 	in closed 	session 	not 	to
give paid 	release 	time, 	for Association negotiating 	team
members, 	because 	of 	the pending 	unfair 	practice charge on
release 	time.
A. 	No, ma'am, 	I did not. 	(TR: 	332-333.)
22

Tarr 	acknowledged 	that 	he 	had 	said 	"words 	to 	that 	effect."
Tarr 	explained, 	however, 	that he made the 	statement because 	it
was 	the 	Board's 	belief 	that 	its 	position would 	be 	upheld 	in
this 	hearing; 	that 	the Board would 	be 	found 	to have 	acted
reasonably with 	respect 	to 	the 	limit 	it 	placed 	on 	release 	time;
and that, 	therefore, 	it had no obligation to grant any
additional 	time. 	Tarr 	specifically denied 	that 	the District
had 	denied 	release 	time 	as 	a means 	of 	retaliation against 	the
W T A 	for 	filing 	an 	unfair 	practice charge. 	(TR: 350-351.)
Tarr's 	explanation of 	his 	ambiguous 	remarks was plausible
and 	I 	credit 	his 	testimony.
C. 	The Adoption of 	the 	1984-1985 	School Calendar
1. 	The District's Contract 	and Past Practice.
The collective 	bargaining 	agreement 	in 	effect 	for 	three
years ended September 	30, 	1984, 	included Article V, 	entitled
"Calendar," 	which 	read as 	follows:
The 	District 	agrees 	that 	the 	work 	year 	for
all 	Bargaining 	Unit Members 	shall 	begin 	no
earlier 	than September 	1, 	and 	shall 	not
exceed 	18 2 days exclusive of Saturdays and
Sundays.
The 	contract 	included 	no 	other 	provision 	regarding 	the 	subject,
nor 	was 	there 	a 	specific calendar 	included 	in 	the contract 	for
any 	of 	the 	three 	school years 	covered.
During 	the 	1981-8 2 school year, 	there were 	175 	student
days, 	and 18 2 total workdays for 	teachers. 	During the 198 2-83
school year, 	and again during 	the 	1983-84 	school year, 	there
23

were 	177 	student days 	and 18 2 total workdays 	for 	teachers. 	In
1983-84, 	the 	five working days 	for 	the teachers on which 	the
students 	were 	not present consisted 	of 	three 	preparation days
before 	school 	began 	in September, 	one day 	in January between
semesters, 	and one day after 	the 	last day of classes 	in June.
Although 	there 	was 	no 	explicit 	testimony given 	about 	the
198 2-83 	non-student workdays, 	it may be 	inferred 	that 	the
distribution of 	these was 	the 	same 	as 	in the 	1983-84 	school
year. 	During 	the 1981-8 2 school year, 	the seven non-student
workdays 	for 	teachers 	consisted 	of 	four 	preparation days 	in
September 	before 	school began, 	one day 	in January, 	and 	two days
after 	the 	last day 	of classes 	in June.
2. 	The 	District Board's Decision on 	the 	Student Calendar
At 	the District 	board's February 	27 	meeting, 	the
administration 	proposed 	a 	student 	calendar 	for 	the 	1984-1985
school year. 	Under 	the proposal, 	students would 	attend classes
on 	181 days. 	September 	10 would 	be 	the first day of classes,
June 	19 	would 	be 	the 	last day 	of 	classes. 	The Christmas
holiday vacation would begin Saturday, 	December 	22, 	and
conclude 	on Tuesday, 	January 1. 	The board did 	not vote on
adoption of 	the calendar 	at 	that meeting.
At 	various 	times 	in March, 	W T A 	President Casi 	Wilson 	tried
to persuade 	the board 	to change 	this calendar, 	to give 	students
and 	teachers 	a 	full 	two-week 	vacation 	at 	the 	end 	of 	December
and 	beginning 	of 	January. 	She 	spoke 	to 	the 	District 	board 	at
24

its March meeting, 	suggesting 	several 	alternative arrangements
which 	would 	have 	included 	a 	full 	two-week 	vacation during 	the
Christmas-New Year 	period. 	Her 	efforts 	were 	unsuccessful, 	and
the 	board 	voted 	at 	its 	late April meeting 	to 	adopt 	the 	student
calendar as described above.
1 2
123. Negotiations Concerning the 1984-85 Calendar.
The 	initial W T A 	contract 	proposal 	to 	the 	District 	included
an 	article 	concerning 	the 	student calendar. 	One provision 	set
the 	work 	year 	for 	all 	bargaining 	unit members 	at 	a maximum of
18 2 days, 	to begin no earlier 	than September 	1. 	Another
provision 	set 	the 	number 	of 	student 	instructional days 	at 	180.
The District's 	initial proposal 	on 	the 	subject consisted
entirely 	of 	the 	following:
The District 	agrees 	that 	the 	work 	year 	for
all 	bargaining 	Unit Members 	shall 	not 	exceed
18 2 work days.
As 	noted 	above, 	negotiations 	between 	the 	District 	and 	the
W T A 	began 	in early May 	1984. 	As of 	the 	time 	of 	the 	hearing,
the work 	calendar 	had 	been discussed 	by 	the parties, 	but 	there
had not been agreement on language. 	And, 	as noted above, 	the
parties 	had 	reached 	impasse 	on 	over-all 	contract 	negotiations,
1 2wilson	l:?wilson 	may have 	sent 	a 	letter 	to 	the 	board on April 	5
in which 	the Association 	asked 	to 	negotiate 	about 	"any proposed
calendar 	that changes 	instructional 	time." 	The 	letter 	in
evidence 	is 	unsigned, 	and 	Tarr 	and Kilgore 	both deny having
seen 	the 	letter 	prior 	to 	the 	hearing. 	The dispute 	need not 	be
resolved, 	since 	it 	is 	undisputed that once 	negotiations began,
in May, 	the District 	and 	the Association did 	negotiate 	about
the teachers' 	work year.
25

had met 	once 	with 	the presence 	of 	a mediator, 	and had 	scheduled
another 	meeting 	without 	a mediator.
4. 	The Beginning 	of 	the School Year
Although 	there 	is no direct evidence on the point, 	teachers
employed 	by 	the 	District 	apparently were 	informed 	sometime 	in
August 	1984 	or 	earlier 	that 	there 	would 	be 	one 	teacher
preparation day 	before 	the 	start 	of 	classes 	on 	September 	10,
and 	that 	day would 	be 	September 	7. 	In evidence 	are 	letters 	to
faculty members 	from 	the 	principals 	of 	Hesperia 	Union High
School, 	the 	new Hesperia High School, 	and Victor Valley High
School, 	each of 	these 	referring 	to the September 	7 preparation
day, 	and 	the 	schedules arranged 	by 	the 	respective principals
for 	that 	day. 	Each 	of 	the 	three principals 	informed 	the
teachers 	that 	keys 	to 	the 	classrooms 	assigned 	to 	them would 	be
available 	before 	September 	7 	(thus 	allowing 	teachers 	to 	begin
classroom preparation before that day). 	Apparently, 	this
practice 	had 	been 	followed 	by 	all 	or 	most District 	principals
in the past.
Three 	of 	the 	four 	letters 	in evidence 	invite 	teachers 	to
begin their 	preparations 	before September 	7, 	but 	there 	is
nothing 	in 	any 	of 	the 	letters 	requiring 	early preparation
efforts.
All 	four 	teachers 	who 	testified 	described 	the 	time 	they
spent during 	the 	summer 	of 	1984, 	prior 	to September 	7,
preparing 	to 	teach 	their 	courses 	during 	the 	1984-85 	school year.
26

Casi 	Wilson 	(who 	teaches 	English 	and 	social 	studies 	at 	Hook
Junior High School) 	spent five or 	six days, 	of six hours each,
preparing 	lessons, 	her 	classroom bulletin board, 	and classroom
furniture, 	before 	school began 	in September 	1984.
13	13 She 	also
testified 	that 	in past years 	she 	had 	spent considerable 	amount
of 	time doing 	this 	kind 	of 	preparation 	before class 	began.
Don Wilson, 	a 	science 	teacher 	and chairman of 	the 	science
department 	at Victor 	Valley High School, 	testified 	that
scheduled meetings on September 	7 	(of 	all 	faculty members, 	of
teachers within his 	department, 	and 	of chairmen of 	the 	various
departments) 	left him no 	time 	on September 	7 	to prepare classes
or 	laboratory 	supplies he was 	to work with during 	the 	coming
year.14 Wilson 	said he 	prepared 	his 	classes 	and 	his
laboratory on 	four 	days prior 	to September 	7, 	working
approximately 	six hours on each day. 	In 	the past, 	Wilson had
spent 	two to 	three days, 	in addition to 	the preparation days
designated 	by 	the 	official 	school 	calendar, 	preparing 	for 	his
classes.
Helen Laney, 	of Apple Valley High School, 	testified 	that
she prepared 	lessons 	at 	the 	school 	on September 	5 	and
13By 	the 	time 	of 	the 	hearing, 	Wilson 	had 	been promoted 	to
an administrative position with 	the District, 	and was 	no 	longer
teaching. 	However, 	she began the 	school year 	as 	a teacher.
14	14pon	oon 	Wilson 	is 	a member 	of 	the 	teachers' 	bargaining 	unit
despite 	his 	position 	as department 	chairman.
27

September 	6. 	Laney worked 	from 	8:00 	a.m. 	until 	3:30 	p.m. 	on
September 	6 	and 	apparently 	until 	sometime 	in 	the 	afternoon on
September 	5. 	She 	testified 	that 	she 	observed 	the 	school
parking 	lot 	full of 	cars 	(many of 	them, 	presumably, 	belonging
to 	teachers doing 	similar preparation work) 	on each of 	those
days.
Julie McGill 	testified 	she 	spent 	all 	or 	part of
approximately 	20 	days during June, 	July and August 	at work 	in
her 	classroom at Hesperia High School, 	the 	school which opened
in September 	1984. 	McGill, 	a business education teacher, 	said
the 	unusually 	high 	pre-school 	time 	commitment 	was 	required
because 	of 	many difficulties 	in 	setting 	up and 	testing 	new
computers 	and 	typewriters. 	She 	and 	other 	school 	personnel
discovered 	that 	the 	typewriters 	and 	computers 	were 	not
compatible, 	requiring major 	adjustments during 	the 	summer.
McGill 	said 	she 	also 	worked 	Tuesday 	through 	Thursday,
September 	4 	through 	6 	preparing 	for 	the opening 	of 	school, 	and
for 	four 	hours on Sunday, 	September 	9. 	She 	testified 	she
observed 	between 	20 	and 	40 	teachers at 	school, 	preparing
lessons or 	equipment, 	on each of the 3 days preceding
September 	7.
McGill 	testified 	that 	in past years 	she 	has 	not 	used 	any
time, 	other 	than 	the days designated 	by the District 	as
preparation days, 	to prepare herself or 	her 	lessons 	for 	the
upcoming 	school year.
28

The 	District 	did 	not 	dispute 	that many 	teachers 	worked
significant 	lengths of 	time 	in 	the 	summer 	of 	1983 	to prepare
for 	their 	classes, 	aside 	from the one day designated by 	the
District as a preparation day, 	September 	7. 	During 	the
hearing, 	I 	notified 	the parties 	that 	I 	would 	take 	notice of 	the
following. 	Neither party objected. 	I 	hereby take notice 	that:
With 	few exceptions, 	teachers 	in the Victor
Valley 	Union 	High 	School 	District 	who 	are
assigned 	a 	full 	teaching 	load 	utilize 	at
least 	three or 	four 	days prior 	to 	the 	first
day of 	classes 	in 	September 	to prepare 	their
classrooms, 	lessons, 	and materials, 	and to
prepare 	themselves 	for 	the 	school year. 	The
amount 	of 	time 	utilized 	by each 	teacher 	for
this 	preparation varies 	with 	the 	number 	and
nature 	of 	classes 	assigned 	to 	that 	teacher,
and may 	also 	depend 	on 	the 	frequency with
which 	the 	teacher 	has 	previously 	taught 	the
classes 	or 	courses 	assigned 	to 	her 	or 	to him.
There 	was 	sketchy 	evidence 	of District 	sponsored 	training
of 	various 	form that 	had 	been provided 	for 	teachers 	in previous
years. 	Kramar 	for 	example, 	testified of 	a one-day meeting of
all certificated 	personnel 	which 	the 	District 	held 	prior 	to 	the
commencement 	of classes 	in 	1974. 	He also 	testified 	that 	in
certain years, 	which he did 	not 	identify, 	the District had
provided 	training 	for 	added 	responsibilities 	which 	teachers
would 	have 	in connection with 	the 	transfer 	of 	students 	from
"special education" 	classes 	to regular classes. 	(TR: 	265-266.)
Tarr 	testified 	that 	the 	District 	had 	eliminated 	the
"student 	rush" 	method 	of 	enrolling 	students 	in 	specific
classes, 	but 	there was evidence 	that 	the 	system had 	been used
29

only at Apple Valley High School, 	for 	a brief period, 	and 	it
was 	not 	clear 	that 	the 	system had 	been 	in 	use during 	the
1983-84 	school year.
There 	was 	no 	other 	evidence 	of 	reduced 	work 	or
responsibility 	associated 	with 	the 	reduction 	in 	the 	number 	of
pre-class 	preparation days.
At the 	time of 	the hearing, 	other 	aspects of 	the work
calendar—such 	as 	those 	concerning 	non-instructional 	days
between semesters, 	and the non-class workdays 	in the 	second
semester—remained 	unsettled, 	pending 	the 	outcome 	of
negotiations.
DISCUSSION AND ANALYSIS
A. 	The 	Increase 	in Class Time
The District's 	decision 	in January 	1984 	to 	increase 	the
length 	of 	each 	class 	by two minutes 	had 	the direct 	and 	intended
effect 	of 	increasing 	the 	amount 	of 	daily 	instructional 	time 	(or
class 	time 	or 	student contact 	time) 	of 	each classroom teacher.
As 	the 	testimony of 	Laney and Don Wilson 	indicated, 	it 	had 	the
effect 	of 	increasing 	the 	effort 	required 	of 	these 	two 	teachers
to prepare 	for 	their 	series 	of 	classes 	each day 	and 	each week.
It 	is 	a 	fair 	inference 	that 	other 	teachers were 	affected
similarly, 	while 	it may be 	acknowledged that 	the 	increase 	in
effort 	flowing 	from 	the 	two-minute 	addition 	to 	each class may
have 	been quite 	small 	in many cases.
30

The 	decision 	to 	increase 	instructional 	time 	during 	the
class 	day had 	the 	indirect 	but wholly predictable 	effect 	of
increasing 	the 	amount 	of 	non-class 	work 	which 	each 	teacher 	in
the two high 	schools had to do on his or 	her own time; 	that 	is,
over 	and 	above 	the 	six-hour, 	25-minute 	ostensible 	limit 	in 	the
collective 	bargaining 	agreement. 	The class 	schedule 	change 	led
to a 	net 	increase of 	ten minutes 	in class-time during 	the
course 	of 	the workday. 	By 	expanding 	the class 	time 	within 	the
workday by a net of 	ten minutes, 	the 	District 	reduced by 	ten
minutes 	the 	time 	available during 	the 	workday for 	preparation.
The District 	thus 	required 	teachers 	to 	use 	an extra 	ten minutes
per 	day 	outside 	the 	scheduled workday 	to prepare 	for 	classes.
If, 	prior 	to the change 	in class 	schedules, 	a teacher 	spent
2 hours 	a 	week 	outside 	the 	scheduled 	day preparing 	for 	classes,
grading papers, 	etc., 	that 	teacher was 	now required 	to 	spend
2 hours 	and 	50 	minutes per 	week on 	these 	same tasks outside 	the
regular workday. 	Thus, 	the District's decision 	to 	lengthen
each 	class 	period 	amounted 	to 	an extension of 	the 	employees'
workday.
An 	increase 	in 	student 	instructional 	time 	is 	within 	the
District 	board's managerial discretion; 	it may properly be
viewed 	as 	a matter 	of 	educational policy, 	among 	the matters 	to
be determined 	solely by the District. 	However,, while 	the
District 	may 	decide 	without 	negotiations 	to 	increase 	student
instructional 	time, 	it may not 	unilaterally modify the
31

teachers' working 	time 	or 	refuse 	to 	negotiate 	proposed 	changes
in the teachers' working 	time.
In a 	series of decisions 	issued over 	several years, 	the
PERB 	has 	held 	that 	the 	length 	of 	preparation 	time 	and 	the
length 	of 	instructional 	time 	within 	each 	school day 	are 	both
negotiable; 	and 	that 	an 	employer 	who 	unilaterally 	alters
either, 	while 	refusing 	to 	allow the 	organization 	representing
certificated 	employees 	an 	opportunity 	to 	negotiate 	about 	the
subject, 	violates 	section 3543.5(c) 	of 	the Educational
Employment Relations Act. 	15	15 . 	Sutter 	Union High 	School
District 	(10/7/81) 	PERB Decision No. 	175; 	Moreno Valley Unified
School District 	(4/30/8 2) 	PERB Decision No. 	206; 	aff'd Moreno
Valley Unified School District v. 	PERB 	(1983) 	142 Cal.App. 	3d
191; 	Healdsburg 	Union High School District 	(6/20/84) 	PERB
Decision No. 	375, at pp. 	108-109.
In Sutter 	Union High School District, 	the Board
specifically 	rejected 	the 	notion 	that 	a 	school 	district 	had 	the
right, 	as a managerial prerogative, 	to alter teachers'
assignments, 	and 	specifically to 	eliminate preparation 	time 	and
add 	instructional 	time, 	"as 	long 	as 	the 	total workday 	remained
constant."16
15	1 Under	5under 	EERA 	section 3543.5(c) 	it 	is an unfair 	labor
practice 	for 	an employer 	to 	"refuse 	or 	fail 	to meet and
negotiate 	in good 	faith with 	an 	exclusive 	representative." 	The
EERA 	is 	codified 	at 	Government Code 	Sections 	3540 	et.seq.
16 The 	best 	discussion 	of 	the 	Board's 	perspective 	on 	this
issue appears 	in San Mateo City School District 	(5/20/80), 	PERB
32

The 	District 	puts 	forward 	several 	defenses 	to 	this 	charge:
(1) 	the change 	of 	schedule was 	necessitated by 	state 	law and
therefore 	the 	subject 	is 	outside 	the 	scope 	of 	representation
under 	the EERA; 	(2) 	the change was consistent with 	the
District's past practice 	(that 	is, 	the practice of 	establishing
class 	schedules consistent with state requirements) ; 	(3) 	W T A
waived 	its 	right 	to 	negotiate about 	this 	subject, 	by virtue of
agreeing 	to 	the management 	rights 	clause 	and 	the 	"zipper"
clause of 	the collective 	bargaining 	agreement; 	and 	(4) 	W T A
made 	no 	request 	to 	negotiate 	with 	the District 	about 	the matter.
None of 	these asserted defenses 	is helpful. 	First, 	the
legal 	necessity 	argument 	is 	rejected. 	The District 	had 	one
obvious alternative 	available 	to 	it, 	to meet 	the 	240-minutes
minimum 	standard: 	it could 	have 	altered 	the 	schedules 	of 	the
(approximately) 	160 	senior 	students who were 	in school 	for 	less
than 	240 consecutive minutes, 	rather 	than change 	the working
schedules of 	all 	the 	teachers 	in 	the two high 	schools.
Alternatively, 	if 	the District wished to continue 	the programs
Decision No. 	129 	at pp. 	15-19. 	That decision was 	reviewed by
the 	Supreme Court 	in San Mateo City School Department v. 	PERB
(1983), 	33 Cal. 	3d 850. 	The Supreme Court there annulled
PERB's Order 	of May, 	1980, 	and 	remanded the case 	to 	the Board
with 	instructions 	to decide 	it 	by 	applying 	standards developed
by PERB 	in 	later 	cases 	in which 	the 	scope 	of 	representation
under 	EERA 	was 	at 	issue. 	On remand 	in June 	1984 	PERB came 	to
the 	same 	conclusion 	that 	it 	had 	reached 	initially with 	respect
to 	the 	San Mateo District's 	obligation 	to 	negotiate 	about
instructional 	time 	and preparation time. 	Healdsburg 	Union High
School District, 	supra.
33

of 	those 	students 	unchanged, 	the District 	had 	the 	legal
obligation 	to 	give 	the W T A 	an 	opportunity 	to 	negotiate 	about
the contemplated change 	in working 	schedule 	before putting 	it
into effect.
The District 	argues 	that when a 	school district 	faces 	a
state-imposed 	legal 	requirement 	in connection with 	some 	aspect
of 	its operation, 	it 	is exempt from EERA's good-faith
negotiation 	requirement with 	respect 	to 	that aspect 	of 	its
operation; 	it 	is outside the scope of 	representation. 	The PERB
has consistently 	rejected 	such arguments. 	In San Mateo
Community College District 	(6/8/79) 	PERB Decision No. 	94, 	and
in San Francisco Community College District 	(10/12/79), 	PERB
Decision No. 	105, 	PERB rejected contentions by two 	school
districts 	that 	because 	of 	the 	financial changes 	brought 	about
by the passage 	of 	Proposition 	13 	in June 	1978 	and 	statutory
requirements 	regarding 	school district budget adoption, 	the
districts 	were 	freed 	of 	the 	obligation of 	negotiating 	with
employee 	organizations 	about certain 	unilateral 	changes.17	17
17This 	discussion 	assumes 	that 	the 	state department 	of
education memorandum did, 	as Kramar 	testified, 	disallow
inclusion of passing 	times before 	the 	first class period, 	and
that 	it was 	applicable 	in 	the circumstances presented. 	The
District 	did 	not present 	as 	evidence 	either 	the 	state
department's memorandum, 	or 	the county board 	of education
communication 	to 	the District. 	Kramar's 	testimony might be
viewed with 	some 	skepticism, 	in view of 	the 	absence 	of 	the
documents 	themselves.
34

The 	District 	argues 	that 	the 	post-Proposition 	13 	cases 	are
distinguishable 	in 	that,
Proposition 	13 	did 	not mandate 	any
affirmative 	action on 	the part 	of 	school
districts. 	In this case, 	state law mandates
certain 	action by the District, 	and 	the
consequences 	of 	noncompliance 	are 	certain,
not 	speculative.
Contrary 	to 	this contention, 	the particular 	change 	adopted 	by
the District was 	not mandated 	by 	state 	law, 	nor 	by 	state
regulation. 	As 	noted 	above, 	the 	District 	had 	at 	least 	one
alternative 	available 	to 	it--modification 	of 	the 	schedules 	of
the 	seniors who were 	the 	only 	students 	who 	had 	a 	school day 	of
less 	than 	240 minutes. 	As yet another 	alternative, 	the
District 	might 	have 	sought 	from 	the 	appropriate 	state 	agency 	an
exemption 	from the 	240-minute 	requirement 	for 	those 	students,
for 	the 	remainder 	of 	the 	school year. 	It cannot be 	said 	that 	a
unilateral 	increase 	in class 	time was 	the 	only 	alternative
available 	to 	the District 	in the circumstances.
Second, 	the contention 	that 	the District's conduct was
consistent 	with 	past 	policy 	(compliance 	with 	state 	law on
minimum class day for 	students) 	is 	based on a misuse of 	the
phrase 	"past practice." 	There 	is 	no question 	that 	the District
had 	a consistent past practice 	of complying 	with 	state 	law
regarding 	the 	length of 	school days 	for 	students 	(or, 	at 	the
least, 	complying 	with 	state 	laws 	as 	the District 	understood
them). 	Certainly, 	the District cannot be criticized 	for 	taking
steps 	to 	bring 	its practices 	into compliance 	with 	state 	law,
35

once 	the 	District 	finds 	that 	it 	has 	a 	shortcoming 	of 	some
kind. 	But 	that 	form of 	"past practice," 	cannot 	justify a
unilateral 	change 	in working 	conditions 	for 	a 	specific 	and
fairly large group of 	the District's 	employees. 	When used 	in
the labor 	law context, 	"past practice" 	refers 	to rules
governing 	employee conduct, 	not 	to 	educational policy.
Third, 	the waiver 	argument 	is 	based 	on 	the 	text of Article
VIII 	of 	the collective bargaining 	agreement, 	"District Rights,"
and Article XV, 	"Effect of Agreement." 	Article VIII 	is a
management 	rights clause, 	which mentions 	a number 	of 	specific
areas 	in which 	the District 	retains 	the 	right 	to make 	its own
decision. 	Included 	is a provision which reads:
Included 	in but 	not 	limited 	to 	those duties
and powers are the rights to: 	. 	. 	.determine
times arid the hours of operation . 	. 	.
Article XV provides 	that:
In 	the 	absence 	of 	specific provisions 	in
this Agreement, 	such practices and
procedures 	are 	discretionary 	with 	the
District, 	as provided 	for 	in the State of
California 	Labor Code.
No 	other 	provision 	is 	arguably 	related 	to 	the change made here,
increase 	in 	instructional 	time 	and 	reduction of 	preparation
time during 	the course of 	a day.
PERB 	has 	followed 	the NLRB 	lead 	in holding 	that 	it will 	not
find 	that 	an 	employee 	organization 	has 	waived 	its 	right 	to
negotiate 	about 	a 	subject 	unless 	the 	employer 	can point 	to
"clear 	and 	unmistakable" 	contract 	language 	indicating 	an
36

organization's 	knowing waiver 	of 	right 	to 	negotiate 	about 	a
subject. 	Amador 	Valley Joint 	Union High 	School District
(10/2/78) 	PERB Decision No. 	74; 	Los Angeles Community College
District 	(10/18/8 2) 	PERB Decision No. 	25 2. 	Neither the
Article VIII 	language 	nor 	the Article XV 	language 	makes 	any
specific 	reference 	to 	the 	subjects 	at 	issue 	here--the 	division
of 	the working 	day 	into 	instructional 	time 	and 	preparation
time. 	In 	the 	absence 	of any evidence 	that 	the cited 	language
was 	intended 	to 	apply to 	the 	subject matter 	here, 	no waiver 	can
be 	found. 	In a 198 2 decision, 	PERB refused to find a waiver 	by
an employee 	organization 	because 	of 	a management 	rights clause
which 	included 	similarly 	broad 	language. 	Solano County
Community College District 	(6/30/82), 	PERB Decision No. 	219,
fn. 6.
In South San Francisco Unified School District 	(9/2/83),
PERB Decision No. 	343, 	the Board upheld an employer's
contention, 	based 	in part on contract 	language 	similar 	to 	that
found 	in Article XV here, 	that 	the 	employee organization had
waived 	its 	right 	during 	contract 	negotiations 	to 	negotiate
about 	layoff effects. 	However, 	in that case, 	the Board's
conclusion was 	based 	on 	extensive 	evidence 	of 	negotiations 	on
the 	specific point 	at 	issue, 	which preceded 	the organization's
agreement 	to 	the contract provision. 	The 	employee organization
had had an opportunity, 	during contract negotiations, 	to
37

discuss 	and 	negotiate about 	layoff procedures, 	had 	done 	so 	at
the 	time, 	had 	agreed to a provision, 	and was 	thus 	not entitled
to 	a mid-contract 	second 	round 	of 	negotiations 	about 	the 	same
subject. 	In this case, 	in contrast, 	there is no evidence of
negotiations 	which preceded 	the 	provision on 	which 	the District
bases 	its argument.
Fourth, 	the W T A 	did 	not 	waive 	its 	right 	to 	negotiate 	about
the 	length 	of 	class 	time 	by 	its 	failure 	to 	request 	negotiations
after 	receiving 	the December 	board 	agendas. 	A 	District 	board's
reference 	in a 	formal agenda to 	a 	specific 	subject does not
constitute 	notice 	to 	an employee 	organization; 	an agenda
reference does 	not provide 	an employee 	organization 	with 	a
timely opportunity 	to 	negotiate with 	the 	employer 	prior 	to 	the
time 	a decision 	is made on 	the 	subject. 	Arvin Union School
District 	(3/30/83) 	PERB Decision No. 	300.
The 	District 	also 	argues 	that 	the W T A 	had 	notice 	of 	the
contemplated 	change 	as 	a 	result of 	a conversation 	between
Julian Weaver, 	principal of Victor Valley High School, 	and
Don Wilson, 	a member 	of 	the Association negotiating 	team.
However, 	the 	only conversation about which 	there was 	specific
evidence 	took place 	after 	the change was 	implemented, 	not
before. 	(TR: 	299.) 	In any event, 	it 	is doubtful that a
conversation of 	this 	sort would 	be 	adequate 	notice 	to 	the
Association of 	a contemplated change 	in practice.
38

B. 	The District's 	Limitation on 	the Amount 	of Released Time 	to
be 	Given 	to W T A 	Negotiators.
EERA 	section 3543.l(c) 	provides:
A 	reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the
right 	to 	receive 	reasonable periods 	of
released 	time 	without 	loss 	of 	compensation
when meeting 	and 	negotiating 	and 	for 	the
processing 	of grievances.
PERB 	has 	held 	that 	the extent 	of 	released 	time 	to 	be granted 	to
an organization's 	negotiators 	is 	itself 	subject 	to
negotiations. 	An 	employer's 	refusal 	to 	negotiate 	about 	the
subject 	with 	the 	employee 	organization 	is 	a 	violation of 	EERA
section 	3543.5. 	Anaheim Union High 	School District 	(10/28/81)
PERB Decision No. 	177. 	An employer's 	refusal 	in negotiations
about 	release 	time 	to 	approach 	the 	subject 	with 	an 	open mind
and with 	a degree 	of 	flexibility constitutes 	a 	violation of
section 3543.5(b) 	Magnolia School District 	(6/27/77) 	EERB
Decision No. 	19.
PERB's 	general 	attitude 	toward 	an 	employer's 	obligation
with 	respect 	to 	release 	time 	requests 	is 	best described 	in 	the
following 	paragraph 	from 	the 	Magnolia 	School 	District 	decision:
"Reasonable released time" means, 	at least,
that 	the District 	has 	exhibited 	an 	open
attitude 	in 	its 	consideration of 	the amount
of 	released 	time 	to 	be 	allowed 	so 	that 	the
amount 	is 	appropriate 	to 	the circumstances
of 	the 	negotiations. 	The District may have
to 	readjust 	its 	allotment 	of 	released 	time
based 	upon 	the 	reasonable 	needs of 	the
District, 	the number 	of hours spent 	in
negotiations, 	the number 	of employees on the
employee 	organization's 	negotiating 	team,
the 	progress 	of 	the 	negotiations 	and 	other
39

relevant 	factors. 	A 	District's 	policy does
not provide 	for 	reasonable 	periods 	of
released 	time 	if 	the policy 	is 	unyielding 	to
changing 	circumstances. 	(Magnolia 	School
District, supra, at p. 	5)
Although PERB has 	not, 	in 	its 	reported decisions, 	held 	that
a district violates 	section 	3543.5(b) 	solely because of 	a
limited 	number 	of 	hours which 	it will 	allow as 	released 	time,
or 	because 	of 	a 	limited 	number 	of 	employees 	to 	whom released
time will be given, 	the Board has 	indicated 	in at least one
decision 	that 	such 	limitations might be 	the 	basis of 	a
finding. 	Sierra Joint Community College 	District 	(11/5/81)
PERB 	Decision 	No. 	169.18
It might be 	argued 	in 	this case 	that 	the District 	ran afoul
of EERA 	section 	3543.5(b) 	both by 	its 	inflexibility 	in adhering
to 	an 	unchanging position on 	the 	limit 	of 	released 	time 	it
would grant during 	the contract 	negotiations, 	and by the
specific 	hour-limitation 	which 	it 	eventually placed 	on 	the
amount 	of 	released 	time 	to 	be granted.
181 18In that decision, PERB noted,
The question as 	to the 	reasonableness of 	the
number 	of 	employees granted 	released 	time 	or
the 	amount 	of 	released 	time granted 	is one
of 	fact 	and depends 	upon 	the particular
circumstances 	in which negotiations 	take
place.
In 	that decision, 	however, 	PERB's conclusion that the employer
had 	violated 	section 	3543.5(b) 	was 	based on 	the 	employer's
refusal 	to negotiate about 	the 	issue, 	not on the particular
limitation on 	the 	hours 	of 	released 	time 	or 	number 	of
negotiators.
40

The 	standard 	established 	by 	the 	EERA 	in 	the Magnolia case
may be applied 	to both contentions. 	That 	is, 	both 	the
numerical 	limitation 	imposed by 	the District, 	and 	the
District's 	willingness 	to 	satisfy 	its 	negotiating 	obligation
may 	be 	measured 	by 	the 	standard 	which 	requires 	an 	"open
attitude 	. 	. 	.so that the amount 	(of released time to be
allowed) 	is appropriate to the circumstances." 	These
"circumstances" 	include 	a number 	of 	factors, 	including 	the
progress 	of 	negotiations.
When 	this 	standard 	is 	applied, 	it cannot be 	said 	that 	the
District's position 	of 	seeking 	to 	limit 	the hours 	of 	released
time 	to 	128 	hours plus 	(four 	days each 	for 	five negotiators)
was 	unreasonable 	during 	the May and June meetings. 	While 	the
District 	remained steadfast 	in this position, 	it presented
during 	the 	hearing 	an 	easily 	understood 	and 	plausible 	reason
for 	adhering 	to 	this position. 	The District's 	own experience
in past 	negotiations with 	the W T A 	led 	it 	to conclude 	that 	128
hours 	would 	be 	enough 	to 	complete 	negotiations 	concerning 	the
terms 	of 	a new contract.
The W T A 	presented 	no 	evidence 	to 	challenge 	the 	accuracy 	of
the 	District's 	assertion 	that 	comparable 	release 	time
arrangements were 	sufficient 	in the past. 	Nor did W T A present
evidence 	to 	establish 	that 	the District 	knew or 	should 	have
known 	that 	the 	1984 	negotiations 	would 	be more 	time 	consuming
than past 	negotiations.
41

Thus, 	it 	is concluded 	that neither 	the District's
inflexibility 	in 	spring 	1984 	on 	its 	four 	days only position,
nor 	the particular 	limit 	imposed 	(four 	days 	for 	each of 	five
negotiators) 	constitutes 	a 	refusal 	to act 	reasonably with
respect 	to 	release 	time 	for 	negotiators.
The Association's charge 	also 	alleges, 	and 	the Association
argues 	in 	its post hearing 	brief, 	that the District acted
unlawfully 	by pre-conditioning 	the 	granting 	of 	any 	release 	time
on 	the Association's 	agreement 	to 	limit 	release 	time 	as 	the
District had proposed. 	Kilgore, 	for 	the District, 	took 	this
position on April 30, 	in a meeting with McGill, 	and on May 4,
when 	the 	two 	negotiating 	teams met.
The question 	of 	whether 	an 	employer 	acts 	unlawfully by
pre-conditioning 	the granting 	of 	any 	release 	time 	to 	a 	union on
the 	employee organization's 	agreement 	to 	an over 	all 	limit 	is
one 	of 	first 	impression 	for 	PERB.
I 	am unwilling 	to 	view the District's conduct 	as 	a per 	se
- -
violation of 	its 	statutory obligations 	to provide 	reasonable
release time. 	In the Anaheim case, 	and later cases, 	as noted
above, 	PERB has 	viewed the 	extent of 	release 	time granted 	as 	a
matter 	to be decided 	through 	the course 	of 	negotiations, 	much
as 	any other 	subject within 	the 	scope 	of 	representation. 	Thus,
each party must 	be 	given 	some 	leeway 	in 	taking 	a position 	and
adhering 	to 	it, 	provided 	that 	the position 	is not 	inherently
unreasonable, 	and 	that 	its adherence does not continue 	to a
point 	beyond 	that 	justified 	by circumstances.
42

In 	this 	case, 	the District 	first adopted the position at
issue--no 	release 	time until 	there 	is 	agreement on 	the 	release
time 	limit--on April 	30. 	It 	abandoned 	the position on May 	23,
when 	Kilgore 	signed 	the 	ground 	rules 	agreement 	which did 	not
have 	a 	specific 	limitation on 	the 	number 	of 	release 	time 	hours
to 	be granted. 	The District's 	adherence 	to 	its position did
not 	delay 	the 	start 	of 	negotiations—it 	appeared 	that
negotiations would 	not have 	started 	until May 4 	even 	if 	the
District's position had been the 	reverse: 	it would grant
release 	time, 	while continuing 	to proclaim 	its 	intent 	to 	limit
release 	time 	to 	four 	days. 	Further, 	the Association's position
was 	also 	inflexible: 	it 	took 	the position at all times 	that
there 	should 	be 	no 	limit 	on 	the 	amount 	of 	release 	time
granted. 	The Association could 	have 	adopted 	a compromise
position—e.g., 	six meetings on release 	time, 	or 	eight meetings
on 	release 	time, 	or 	release 	time for 	alternate meetings after
the 	fourth meeting.
In view of 	all 	these circumstances, 	I conclude 	that the
District's position, 	pre-conditioning 	release 	time 	on 	agreement
to a limit of 	release 	time, 	was not 	unlawful within the meaning
of EERA section 3543.5(a) ,(b) , or (c) .
In addition, 	the Association's charge concerning 	the
release 	time 	dispute 	suggests 	that 	the District 	acted 	illegally
by refusing 	to 	begin negotiations 	in a 	timely fashion 	so 	as 	to
allow negotiations 	to 	be 	completed prior 	to 	the 	District's
43

final 	budget adoption. 	The 	allegation 	is not 	spelled out
clearly. 	In any event, 	the Association 	introduced 	no evidence
on 	the point. 	Insofar 	as 	the Association's charge may be 	read
to present 	that allegation, 	it will 	be dismissed.
A 	separate 	release 	time question 	is 	raised 	for 	the 	meeting
scheduled 	to 	take place on October 	29. 	The District 	refused 	to
grant 	the W T A 	negotiators 	release 	time. 	It may 	be 	inferred
that Davis conveyed 	to Kilgore 	in 	their 	post-board meeting
telephone 	conversation W T A ' s 	expectation 	and 	desire 	for
release 	time 	for 	negotiations 	(although 	no 	specific 	request 	was
made). 	In any event, 	Kilgore made 	it clear 	that the Board
would 	not 	allow any 	additional 	release 	time 	for 	the Monday
meeting. 	A 	request 	by W T A 	for 	release 	time 	would 	have 	been
futile. 	Tarr's 	explanation of his 	remark 	to Casi Wilson
represents 	a clear 	statement by 	the 	District 	that 	it 	intended
to 	grant 	no 	additional 	release 	time 	for 	face-to-face meetings
without 	a mediator, 	and 	that 	this 	intention was 	based 	on 	the
board's 	belief 	that 	its past 	action 	had 	been 	reasonable.
For 	this 	analysis 	it 	is of 	no 	significance 	which of 	the 	two
versions of 	the October events 	is credited: 	the District voted
specifically 	in October 	to deny additional 	release 	time; 	or,
the 	District 	had made 	a general decision 	several months
earlier, 	and 	its 	refusal to grant release 	time 	for October 	29
was 	nothing 	more 	than 	a 	specific 	application of 	this decision.
44

It 	is 	undisputed 	that 	the 	District 	(through Kilgore) 	informed
the Association 	of 	its 	unwillingness 	to consider 	any 	additional
release 	time.
Application 	of 	the Magnolia 	School 	District 	standard 	leads
to 	the conclusion 	that by 	this 	action 	in October 	the District
acted 	unreasonably, 	and 	thus 	violated 	EERA 	section
3543.5(b).19 The 	District's 	actions 	were 	unreasonable 	given
the circumstances. 	Whatever 	the District 	believed 	in the
spring 	about 	the 	likelihood of 	fairly brief 	negotiations, 	it
must have 	been clear 	to 	both parties, 	by 	late October 	that
final agreement on contract terms, 	or 	even a conclusive 	impasse
could not 	be 	reached 	in the 	immediate 	future. 	The predecessor
contract 	between 	the 	District 	and 	the 	W T A 	included 	provisions
on 	16 	major 	subject 	areas. 	Testimony during 	the 	hearing
indicated 	that 	the parties, 	up until the 	time of 	the hearing,
19The 	initial 	charge 	referring 	to 	the 	release 	time
dispute was 	filed 	in May 1984, 	and obviously did 	not 	refer 	to
events 	in October 	1984. 	However, 	on the 	second day of 	the
hearing, 	counsel 	for 	the Association moved 	to amend 	the
complaint 	to 	allege 	that 	the denial of 	release 	time 	for 	the
October 	meeting 	denied 	the Association 	the 	"reasonable" 	release
time guaranteed 	by 	the EERA, 	and 	also 	alleged 	that 	the denial
of 	release 	time was 	retaliatory. 	The motion was granted 	on 	the
third day 	of 	the hearing, 	with no 	objection by the District
(TR: 	226) . 	The 	issue was fully litigated and briefed by the
District.
The 	text 	of 	the 	amendment 	is 	set out 	in a 	separate document
which was 	typed on 	the last day of 	the 	hearing, 	and 	received by
PERB 	after 	the close 	of 	the hearing, 	accompanied 	by a 	letter
from District counsel, 	dated December 	14, 	1984.
45

had 	agreed 	to 	terms 	in either 	three 	or 	six areas. 20 Assuming
that proposals 	covered 	all 	the 	subjects 	covered 	by 	the
predecessor 	contract, 	the parties were 	far 	from agreement.
This 	inference 	is 	supported 	by 	the 	appointment 	of 	a PERB
mediator, 	indicating 	the parties had 	reached 	impasse 	in 	their
negotiations.
Thus, 	the circumstances 	had changed 	since 	the 	District 	had
initially decided 	in April 	that 	it 	would 	not 	allow release 	time
beyond 	four 	days 	for 	each of 	five 	negotiators. 	More 	time would
be 	needed 	to 	complete 	negotiations.
There 	is 	no 	requirement 	in 	the EERA 	that 	an employer
provide 	release 	time 	for 	employee 	negotiators 	for 	every meeting
throughout 	negotiations. 	However, 	the PERB has held that 	the
EERA's 	reference 	to 	"reasonable" 	release 	time 	requires 	an
employer 	to 	be 	flexible 	in 	its 	approach 	to 	allocating 	release
time.
In 	this 	case 	the District was 	not 	flexible. 	It 	refused 	in
October 	to 	reconsider 	a position 	adopted 	six months 	earlier,
although 	the 	assumptions 	on 	which 	the 	policy 	was 	based 	had
proved 	to be erroneous. 	At 	the 	same time, 	it refused to grant
more 	than 	four 	days' 	release 	time despite 	the 	knowledge 	that
20Don Wilson 	testified 	agreement 	had 	been 	reached 	in
three 	areas; 	Kilgore 	testified 	agreement 	had 	been 	reached on
six areas. 	Regardless of which number 	is correct, 	the
inference which 	follows 	remains 	the 	same: 	the parties were 	far
from a complete 	agreement.
46

there 	had 	already been nine meetings, 	at 	least 	eight of 	them
lengthy, 	and 	it was 	very 	likely there would 	be 	several more
before negotiations could be completed. 	In 	this context, 	the
District's 	continued 	policy 	limiting 	release 	time 	to 	four
meetings 	is not reasonable.
It 	would 	not 	have 	been necessary 	for 	the 	District 	to 	agree
that 	all 	future meetings would 	be covered 	by 	release 	time.
However, 	the 	District 	should 	have 	indicated directly 	that 	some
additional 	release 	time would 	be 	available 	for 	future meetings.
It 	is concluded, 	therefore, 	that the District's refusal to
grant 	any 	release 	time 	for 	the 	negotiations meeting 	scheduled
to take place October 	29 was 	a 	violation of 	EERA 	section
3543.5(b).
C. 	The Allegation of 	Retaliation 	in Connection 	with 	Release
Time 	for 	the 	October Meeting.
The 	amendment 	to 	the complaint which was 	first proposed 	on
the 	second day 	of 	the hearing, 	and 	allowed 	on the 	last day of
the 	hearing, 	alleges 	that 	the District's denial of 	release 	time
for 	the meeting 	scheduled 	for October 	29 	was 	a 	form of
retaliation against 	the Association, 	for 	the 	filing 	of 	the
initial charge 	concerning 	release 	time. 	The 	only evidence 	in
21 It 	may 	be 	noted 	in 	this 	context 	that 	the 	District
operates 8 	schools, 	with 360 	to 370 	teachers. 	(TR: 	10-11.) 	In
a district 	this 	size, 	it cannot 	be 	said 	that granting 	several
additional days 	of 	release 	time 	to 	five 	teachers would
represent 	a 	significant 	financial 	burden 	to 	the District. 	A
much 	smaller 	district might 	have 	a 	better 	point 	to make.
47

support 	of 	this 	allegation 	is 	a 	remark 	made 	by 	Superintendent
Tarr 	to Casi Wilson and Julie McGill, 	in or 	around 	the 	hearing
room, 	during 	a break 	in the 	hearing.
The 	remark 	itself was ambiguous. 	Tarr 	testified, 	credibly,
about 	what he meant 	to convey with 	the 	remark he made. 	He
specifically denied 	that 	the District 	intended 	to 	retaliate
against 	the Association 	for 	the 	filing 	of 	the 	unfair 	practice
charge. 	Tarr's explanation of the 	remark 	is plausible, 	and 	I
have credited 	it. 	Since there 	is 	no other evidence of 	a
retaliatory motive 	by 	the District, 	the 	allegation will 	be
dismissed. 22
D. 	The Reduction 	in 	the Number 	of 	the Pre-Class Preparation
Days.
In 	Palos 	Verdes 	Peninsula Unified 	School 	District 	(7/16/79)
PERB Decision No. 	96, 	PERB held that the employee calendar, 	the
days on which employees are 	required 	to work, 	is a mandatory
subject 	of 	bargaining 	under EERA, 	as 	it 	is 	included within the
reach 	of 	the phrase 	"hours 	of 	employment" 	in EERA 	section
3543.2.23 The Board's decision 	in Palos Verdes did 	not
specifically 	take 	up 	the 	question 	presented 	here—the
negotiability 	of 	the 	number 	of 	days during 	the 	working 	year
which are 	to be non-instructional days, 	set aside 	for 	teachers
The
48
22	2 2rhe Association did 	not 	pursue 	the 	retaliation
allegation 	in 	its 	post-hearing 	brief.

to do 	preparation 	or 	other 	instruction-related 	work 	(e.g.
grading 	of examinations or 	other written assignments).
In San Jose Community College District 	(9/30/8 2 ) , 	PERB
Decision No. 	240, 	the Board dismissed an allegation of 	unlawful
conduct 	by a 	school 	district 	which 	had 	adopted 	a 	school
calendar 	without 	agreement 	with 	the 	teachers' 	bargaining
agent. 	However, 	the Board's decision 	turned on the absence of
evidence 	that 	the 	increase 	in 	the 	number 	of class days 	(itself
a matter 	of 	educational 	policy 	and 	therefore 	outside 	the 	scope
of 	representation) 	had 	a direct 	effect 	on 	any matter 	within 	the
scope 	of 	representation under EERA. 	The PERB wrote:
We 	find 	that 	the Association 	failed 	to 	prove
that 	the 	substitution of 	teaching 	days 	for
inservice days 	affected 	a matter 	within 	the
scope of representation. 	There 	is no
evidence 	in 	the 	record 	to 	indicate 	that 	the
District's 	actions 	required 	certificated
personnel 	to work more days, 	nor did 	it
lengthen the working day, 	increase 	the
number 	of working days per year, 	or 	affect
the distribution of workdays. 	Moreover, 	the
evidence 	fails 	to 	indicate 	that
discontinuation 	of 	the 	program 	increased
preparation 	time 	or 	caused 	employees 	to 	use
any duty-free or 	off-duty 	time 	to meet
professional 	development 	requirements.
(Citations omitted.) 	. 	. 	. 	Therefore, 	there
was 	no 	evidence presented 	to prove 	that 	the
District's 	actions 	impacted 	a 	subject 	within
the 	scope 	of 	representation. 	(San Jose
Community College District, 	Id., 	at page 10).
23Section 3543.2 reads, 	in pertinent part:
The 	scope 	of 	representation 	shall 	be 	limited
to matters 	relating 	to wages, 	hours of
employment 	and 	other 	terms 	and conditions 	of
employment.
49

The 	clear 	implication of 	this passage 	is 	that 	an 	employer
may 	not 	take 	unilateral 	action which 	would 	require 	certificated
employees 	to work 	additional days, 	to 	lengthen the working day,
increase 	the 	number 	of working 	days per 	year, 	or 	cause
employees 	to 	use 	any 	off-duty 	time 	to meet 	"professional
development 	requirements."
In this case, 	it has been 	found that 	the District's conduct
did 	increase 	the 	number 	of 	working 	days per 	year. 	Laney and
Don Wilson 	testified 	to 	that effect, 	explicitly. 	More
importantly, 	I 	have taken judicial notice, 	and the District
concedes, 	that 	every 	teacher within 	the District with a 	full
work 	load 	needs 	at 	least 	three 	or 	four days 	of preparation,
prior 	to 	the 	first day of classes 	in the fall, 	to prepare 	for
the 	school year.
If 	the 	District 	expects 	and 	assumes 	that 	teachers 	will
spend 	at 	least 	three or 	four 	days preparing 	to 	teach, 	before
the 	first day of 	classes, 	and 	assigns 	three or 	four days 	to
such preparation before 	the 	first day of classes, 	all or most
of 	that work 	will 	be 	done during 	those 	scheduled workdays. 	If,
on 	the other 	hand, 	the District assigns only one 	official
workday 	to preparation, 	and 	expects 	the 	teachers 	to prepare
just as thoroughly, 	carefully, 	and thoughtfully, 	then teachers
who 	fulfill 	that 	expectation will 	be 	working 	an 	additional 	two
or 	three days 	(at 	least) 	on 	"their 	own time." 	The District's
action thus 	resulted 	in a material 	increase 	in 	the 	teachers'
hours of employment.
50
.

Looked 	at 	another 	way: 	if 	it 	is assumed 	that 	the
District's 	teachers 	work 	on 	each 	day 	on which 	there 	are
scheduled 	classes during 	the 	1984-1985 	school year, 	they will
be working 	at 	least 	184 	days during 	this 	school year: 	181
class days, 	one official pre-class preparation day, 	and at
least 	two 	unscheduled preparation days 	before 	the 	first day 	of
classes. 	The 	total of 	184 	working days 	is 	two days more 	than
teachers were 	required 	to work 	in 	the 	1983-84 	school year. 24
The 	same 	conclusion 	is 	reached: 	the 	District 	unilaterally
increased 	the 	number 	of 	days 	on which 	teachers 	were 	required 	to
work.
One 	of 	the 	two 	Board opinions 	in 	the Palos Verdes 	case
refers 	to 	the possibility that 	in 	some circumstances 	a 	school
district 	may 	be 	required 	to 	act 	unilaterally 	with 	regard 	to
beginning 	classes 	to meet 	a 	legal 	or 	financial 	obligation.
(Palos Verdes, 	supra, at pp. 	3 2-33). 	However, 	that is not the
case here. 	There 	is 	no dispute 	about 	the date 	on which classes
were 	to begin; 	the dispute 	is about 	the date on which 	teachers'
paid, 	official pre-class preparation was 	to begin.
The 	District's 	unilateral 	act 	removing 	two 	preparation 	days
from the 	official working 	calendar, 	while 	not 	reducing 	(to 	any
24This calculation does 	not 	take 	into 	account 	the
possibility that 	there will 	be extra workdays between 	semesters,
in late January, 	or 	at the end of 	the 	school year, 	in
mid-June. 	If there are such days scheduled, 	the teachers' 	work
year 	will 	be 	extended 	even more.
51

measurable degree) 	the work 	required 	of 	teachers 	prior 	to 	the
commencement of classes, 	constitutes a violation of EERA
sections 3543.5(b) 	and 	(c).
The District argues, 	correctly, 	that 	the 	student calendar
is not a 	subject within the 	scope of 	representation, 	and by
unilaterally 	adopting 	the 	student calendar, 	the 	Board did 	not
act 	in violation of 	the EERA. 	That 	is accurate, 	but not
relevant. 	What was 	at 	issue here was 	not 	the date 	for 	the
commencement 	of classes but 	the date 	on which 	the 	teachers'
work 	year 	would 	officially begin: 	the 	date 	on which 	the
District 	would 	recognize 	the 	teachers' 	pre-class 	preparation as
paid work 	time, 	to 	be 	included 	in eventual calculations 	of 	the
number 	of 	teacher 	working days. 	The District chose 	to
designate 	only one day, 	September 	7, 	prior 	to 	the 	start of
classes as a teacher workday. 	In the previous school year,
there were 	three 	such 	days prior 	to 	the 	start of 	classes. 	By
altering 	this practice, 	the District 	acted 	unilaterally.
The District 	argues 	that 	its conduct 	in 	this 	respect was
consistent with past practice, 	and consistent with 	the
collective 	bargaining 	agreement, 	since 	the 	agreement 	says 	only
that 	the 	work 	year 	will 	begin 	no earlier 	than 	September 	1.
Without quite 	saying 	so, 	the District 	argues 	that 	the
Association, 	by agreeing 	to 	the contract 	language quoted 	above,
waived 	its 	right 	to negotiate 	about 	the 	subject 	at 	issue 	here.
As noted above, 	PERB, 	like the NLRB, 	recognizes an employee
52

organization's 	waiver 	of 	a 	right 	to 	negotiate 	about 	the 	subject
only when 	the waiver 	is clear 	and 	unmistakable. 	There 	is 	no
such waiver 	here. 	There 	is 	no mention at 	all 	in 	the contract
of 	the question of preparation days, 	or 	teacher working days on
which 	there 	are 	no 	classes. 	There can be 	no 	finding 	of 	waiver
made 	in this case.
Next, 	the District 	argues 	that 	the District's past practice
was 	to 	use 	non-teaching 	days 	before 	the 	beginning 	of 	classes
for 	the convenience of 	the District: 	for 	District-wide
meetings, 	in-service training, 	faculty meetings, 	department
meetings 	and 	the 	like. 	In 	September 	1984 	the District 	lawfully
exercised 	its managerial 	authority 	to direct 	its work 	force,
and cannot 	be 	found 	to have 	acted 	illegally, 	the District
argues.
All of 	the 	activities 	listed 	by 	the 	District did 	take
place, 	on occasion, 	during other school years, 	in the days
immediately preceding 	the beginning 	of 	classes, 	alongside
teacher preparation. 	However, 	the evidence 	is 	far 	from
sufficient 	to 	establish a consistent past practice. 	For
example, 	a District-wide meeting occurred once, 	in 1974.
In-service meetings 	to 	train 	teachers 	to 	teach 	"special
education" 	students who were placed 	in regular 	classes were
provided 	in certain years, 	but not 	in later years. 	There was
no detailed 	evidence 	of 	how the District 	used 	its pre-class
teacher 	workdays 	in 	the 	1983-84 	school year.
53

In 	the absence of 	satisfactory evidence on 	this point, 	the
proffered 	defense 	cannot 	be 	accepted.
Finally, 	the District argues 	that 	it 	fulfilled 	its
obligations 	by 	negotiating 	the 	teacher 	calendar 	with 	the
Association, 	during 	the 	contract negotiations which 	began 	before
the 	hearing, 	and continued after 	the hearing. 	The 	evidence
showed 	that 	the 	District 	and 	the Association 	had 	discussed 	the
working 	calendar 	during 	negotiations, 	but had 	not yet 	reached
agreement on the 	subject. 	In the absence of 	agreement, 	it was
the District's obligation to maintain the 	status quo, 	that 	is,
three working 	days 	before 	the 	beginning 	of 	classes. 	By
changing 	the 	status 	quo, 	the District acted 	unlawfully. 	The
District 	would 	be 	free 	to 	act 	unilaterally 	on 	this 	issue 	only
after 	it had 	reached 	impasse with the Association, 	and had
undertaken 	and 	completed 	in 	good 	faith 	the 	statutory 	impasse
procedures. 	Moreno Valley Unified School District 	(4/30/8 2)
PERB Decision No. 	206, 	aff'd, 	Moreno Valley Unified School
District v. 	PERB 	(1983) 	[142 Cal.App. 	3d 191].
CONCLUSIONS
The District 	violated EERA 	section 	3543.5(c) 	by 	its
unilateral decision 	in December 	1983 	as 	implemented 	in January
1984 	to add 	ten minutes per day to 	teachers' 	instructional
time, 	and by 	subtracting 	the 	same amount from teachers' 	daily
preparation time. 	Concurrently, 	the District also violated
sections 3543.5(a) 	and 	(b) .
54

The 	District 	violated 	EERA 	section 	3543.5(b) 	by 	its
unreasonable conduct with 	respect 	to 	release 	time 	in October
1984. 	Concurrently, 	this conduct violated EERA 	sections
3543.5(a) 	and 	(c). 	Its other conduct with regard to release
time 	did 	not 	violate 	any provision of 	EERA, 	and 	allegations
pertaining 	to 	this 	conduct 	shall 	be 	dismissed.
The 	District 	violated EERA 	section 	3543.5(c) 	by 	its
unilateral 	elimination of 	two 	of 	the 	three pre-class 	teacher
preparation days 	in September 	1984. 	Concurrently, 	the District
also violated EERA 	sections 3543.5(a) 	and 	(b).
All 	other 	allegations 	of 	unlawful 	conduct 	shall 	be
dismissed.
REMEDY
The 	usual 	remedy 	for 	an unlawful 	unilateral change 	is 	an
order 	restoring 	the 	status quo ante, 	requiring 	the 	employer 	to
negotiate 	with 	the 	employee 	organization about 	the matter(s) 	at
issue, 	and 	requiring 	the 	employer 	to make particular 	employees
whole 	for 	monetary 	losses 	incurred 	by 	the 	employees 	as 	a 	result
of 	the employer's unlawful conduct. 	In Corning 	Union High
School District 	(8/17/84) 	PERB Decision No. 	399, 	a case 	in
which 	PERB 	found 	that 	a 	school district 	had 	unlawfully
eliminated certain 	teachers' 	preparation period, 	PERB 	issued 	a
remedial 	order 	which 	had 	two 	alternative methods 	of
compensating 	those 	employees 	who 	were 	required 	to 	work 	longer
55

hours 	than 	had 	been 	agreed 	to. 	The 	Board 	ordered 	the 	district
to 	compensate 	the 	affected 	employees 	by 	giving 	them paid 	time
off 	work 	"which 	comports 	with 	the 	number 	of 	extra 	hours 	each
employee 	actually worked." 	In the 	alternative, 	the Board
ordered 	that 	if 	the 	district 	and 	the 	employee 	organization were
unable 	to 	agree 	on 	the manner 	in which 	the 	time 	off would 	be
granted, 	"the 	employees concerning whom there 	is 	no 	agreement
shall 	receive 	monetary compensation 	commensurate 	with 	the 	extra
hours 	worked."
That precedent will 	be 	followed here, 	with 	respect 	to 	the
District's 	unilateral 	reduction 	of 	preparation 	time 	in January
1984 	and 	the 	District's 	unilateral 	elimination 	of 	two
preparation days 	in 	September 	1984.
The District 	argues 	that 	an order 	requiring 	the District 	to
pay 	for 	additional minutes which 	the 	teachers were 	required 	to
teach 	is 	inappropriate, 	because 	the Association presented 	no
evidence 	that 	the 	additional 	teaching 	minutes 	required 	each
teacher 	to work 	additional 	time 	outside 	of 	the 	workday.
Further, 	the Association notes,
(T)he 	record 	reflects 	that 	any 	amount 	of
extra 	time 	which 	employees may 	have 	worked
because 	of 	increased 	instructional 	minutes
varied 	depending 	on 	the 	subject 	matter
taught, 	their particular work habits and
their 	professional decisions 	of 	how to 	fill
teaching 	time.
The Association notes, 	correctly, 	that 	only two 	teachers
testified 	about 	the 	consequences 	(to 	each 	of 	them,
56

respectively) 	of 	the District's unilateral 	lengthening of 	the
instructional minutes per 	day. 	There 	is 	no evidence 	that other
teachers were compelled, 	as 	a 	result of 	the 	unilateral change,
to 	spend 	additional 	time 	beyond 	the 	contractual 	workday
preparing 	for 	classes, 	or, 	if 	they did 	so, 	how much extra time
was 	needed.
Despite 	this 	shortage of 	evidence, 	the make-whole 	remedy 	is
appropriate. 	The 	unilateral 	change 	implemented 	by 	the District
substituted, 	each day, 	ten minutes of class 	time 	for 	ten
minutes of non-class time, 	which was available 	for 	use as
preparation 	time. 	Each 	teacher 	who 	did 	exactly 	the 	same 	amount
of 	preparation 	following 	the 	unilateral change 	as 	she 	or 	he did
before 	the 	unilateral change, 	must 	have 	worked 	ten minutes
longer 	each 	day. 	Only 	teachers who 	reduced 	their 	preparation
effort 	after 	the 	unilateral 	change 	could 	have 	avoided 	the
lengthening 	of 	their 	workday; 	there 	is no 	evidence 	that 	any
teachers 	chose 	this path.
It 	is 	possible 	that 	specific 	teachers 	reduced 	their
preparation 	time 	after 	the January 3 	unilateral change, 	and 	as
a 	result, 	did not have a 	longer working day or week. 	The
question of 	each 	teacher's entitlement 	to a 	specific 	amount of
money 	is 	left 	to 	a 	compliance 	proceeding, 	if 	the parties
cannot, 	by their own efforts, 	agree on amounts due. 	The order
in 	this 	case 	establishes 	that 	teachers 	who 	did 	work 	longer 	days
57

as 	a 	result 	of 	the 	unilateral 	change 	are 	entitled 	to 	additional
compensation. 25
The District 	also 	argues 	that 	a make 	whole 	order 	for 	the
additional 	instructional 	days 	for 	the 	1984-85 	school year 	is
inappropriate. 	The 	District would 	view work 	done 	by 	teachers
to prepare 	for 	classes 	before 	the 	first day of 	instruction as
"voluntary" 	on 	the part of 	those 	teachers. 	The District's
final 	brief 	noted 	that 	teachers 	who did 	not 	report 	for 	work
prior 	to 	September 	7 	were 	not penalized 	or 	reprimanded 	in 	any
way. 	Also, 	the District contends 	that 	"the 	record 	is clear
that 	in 	the 	past 	non-student working 	days 	before 	the 	beginning
of 	school 	have 	been 	filled 	with 	District's 	mandated 	preparation
activities."
The District's contentions are 	unpersuasive. 	First, 	the
record, 	as I 	noted above, 	is far 	from clear on the point; 	in
fact 	the 	most 	likely 	inference 	that might 	be 	drawn 	from 	the
sketchy 	record 	is 	that 	"District-mandated" 	activities 	prior 	to
the 	first day of 	classes 	were 	a minor 	element 	of 	teachers'
activities 	during 	those 	three 	or 	four 	days 	each 	September
designated 	as 	workdays.
25 PERB 	has 	issued 	similar 	orders 	in 	other 	unilateral
change cases, 	in which 	the entitlement of various 	individuals
to 	monetary compensation was 	uncertain. 	Oakland 	Unified 	School
District 	(4/23/80) 	PERB Decision No. 	126, 	aff'd, 	Oakland
Unified School District v. 	PERB, 	120 Cal.App.3d 	1007 	(1981) 	and
Lincoln Unified School District 	(12/18/84), 	PERB Decision
No. 465.
58

Second, 	the 	argument 	that 	teachers' 	efforts prior 	to 	the
first day of classes 	are 	"voluntary" 	is disingenuous. 	I 	took
notice that with 	few exceptions, 	teachers 	use 	three or 	four
days prior 	to classes 	to prepare 	for 	the 	impending 	semester 	of
lectures, assignments, examinations, papers, and grading. 	In
past years, 	the District 	recognized 	the 	necessity of 	such
preparation, 	by 	including 	such days 	among 	the enumerated
workdays 	for 	which 	teachers were compensated. 	The order 	in
this 	case 	would 	require 	only 	that 	the 	District 	adhere 	to 	its
previous practice. 	It does not require 	the District 	to
compensate 	each 	teacher 	for 	as many preparation days 	as 	each
teacher decides 	is necessary 	in his or 	her case, 	without limit.
No 	monetary compensation will 	be 	ordered 	for 	the 	District's
refusal 	to provide 	reasonable 	release 	time 	for 	the October 	29,
1984 	negotiating meeting. 	There 	is 	not 	a clear 	inference 	to 	be
drawn 	that members 	of 	the 	negotiating 	team worked 	extra 	hours,
or 	suffered 	a 	financial 	loss 	in any other way, 	as a consequence
of 	the District's unlawful conduct. 	In any event, 	if the
District 	had 	indicated 	to 	the W T A 	its 	willingness 	to 	negotiate
about 	release 	time provisions 	for October 	29 	(and 	other
meetings 	which might 	follow) 	there 	is 	no certainty 	that 	those
negotiations would 	have 	led 	to 	release 	time 	for 	October 	29.
It 	also 	is 	appropriate 	that 	the District 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms of 	the order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
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/

indicating 	that 	it 	will 	comply with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such 	a 	notice
will 	provide 	employees with 	notice 	that 	the 	District 	has 	acted
in 	an 	unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from 	this 	activity. 	It 	effectuates 	the 	purposes 	of 	the 	EERA
that 	employees 	be 	informed 	of 	the 	resolution 	of 	the 	controversy
and 	will 	announce 	the 	District's 	readiness 	to 	comply 	with 	the
ordered 	remedy. 	See 	Placerville 	Union 	School 	District
(9/18/78) 	PERB Decision No. 	69; 	Pandol and Sons v. 	Agricultural
Labor Relations Bd. 	(1979) 	98 Cal.App.3d 580, 	587; 	NLRB v.
Express Publishing Co. 	(1941) 	312 U.S. 	4 26 	[8 LRRM 4 1 5 ] .
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and pursuant 	to 	EERA
section 3541.5(c), 	it 	is hereby ORDERED that the District, 	its
governing 	board 	and 	its 	representatives 	shall:
1. 	CEASE AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	Victor 	Valley 	Teachers Association
concerning 	the 	teachers' 	preparation periods, 	non-student
working days, 	and 	release 	time 	for 	negotiations;
(2) 	Denying 	the Victor 	Valley Teachers Association
the 	right 	to 	represent 	the 	employees 	by 	failing 	and 	refusing 	to
meet 	and 	negotiate 	in 	good 	faith 	concerning 	the 	teachers'
preparation periods, 	instructional 	time, 	non-student working
days, 	and 	release 	time 	for 	negotiations.
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(3) 	Interfering with 	employees 	in 	the 	exercise 	of
rights 	guaranteed 	by 	the 	Educational 	Employment 	Relations Act
by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	with 	the Victor
Valley 	Teachers Association 	concerning 	these 	subjects.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS A C T :
(1) 	Upon 	request, 	meet and 	negotiate with 	the
exclusive 	representative 	concerning 	the 	teachers' 	preparation
time, 	non-student working days, 	and 	release 	time 	for
negotiations.
(2) 	Reinstate the 	teachers' 	preparation periods 	in
effect prior 	to January 	3, 	1984, 	until 	such 	time 	as 	the parties
reach 	agreement 	or 	negotiate 	through 	completion 	of 	the
statutory 	impasse 	procedure 	concerning 	the 	subject 	matter 	of
the 	unilateral 	change. 	However, 	the 	status quo 	ante 	shall 	not
be 	restored 	if, 	subsequent 	to 	the District's 	actions, 	the
parties 	have, 	on 	their 	own 	initiative, 	reached 	agreement 	or
negotiated 	through 	completion 	of 	the 	impasse 	procedure
concerning 	the 	preparation 	periods.
(3) 	Grant 	to each of 	the 	employees 	harmed by 	the
unilateral 	change 	the 	amount 	of 	time 	off 	which 	corresponds 	to
the 	number 	of 	extra 	hours worked 	as 	a 	result 	of 	the 	increase 	in
class 	time 	following January 	2, 	1984, 	and 	as 	a 	result 	of 	the
elimination 	of 	two 	non-student 	working 	days 	prior 	to 	the
commencement 	of 	classes 	in 	September 	1984. 	Should 	the 	parties
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fail 	to 	reach 	a 	satisfactory 	accord 	as 	to 	the manner 	in 	which
such 	time 	off 	will 	be 	granted 	or 	if 	an 	individual 	is 	no 	longer
in 	the 	District's 	employ, 	then 	such 	employees will 	be 	granted
monetary 	compensation 	commensurate 	with 	the 	additional 	hours
worked. 	However, 	if 	subsequent 	to 	the District's 	unlawful
action, 	the parties have, 	on their 	own 	initiative, 	reached
agreement 	or 	negotiated 	through 	the 	completion 	of 	the 	statutory
impasse 	procedure 	concerning 	these 	subjects, 	then 	liability 	for
compensatory 	time 	off 	or 	back 	pay 	shall 	terminate 	at 	that
point. 	Any monetary payment 	shall 	include 	interest 	at 	the 	rate
of 	ten 	(10) 	percent per 	annum.
(4) 	Within 	ten 	(10) 	workdays 	of 	service of 	a 	final
decision 	in 	this matter, 	post 	at 	all 	school 	sites 	and 	all 	other
work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the 	notice 	attached 	hereto 	as 	an 	appendix.
The 	notice 	must 	be 	signed 	by 	an 	authorized 	agent 	of 	the
District 	indicating 	that 	the 	District 	will 	comply 	with 	the
terms 	of 	this 	order. 	Such 	posting 	shall 	be 	maintained 	for 	a
period 	of 	thirty 	(30) 	consecutive 	workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	insure 	that 	the 	notice 	is 	not 	reduced 	in
size, 	altered, 	defaced 	or 	covered 	by any other 	material.
(5) 	Upon 	issuance 	of 	a 	final decision make 	written
notification 	of 	the 	actions 	taken 	to 	comply 	with 	this 	Order 	to
the 	Los Angeles 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in 	accordance 	with 	his/her 	instructions.
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IT 	IS 	FURTHER ORDERED 	all 	other 	allegations 	in 	the 	charge
and 	complaint 	are 	hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part III, 	section 3 2305, 	this Proposed Decision and Order 	shall
become 	final on February 19, 	1985, 	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 	at 	its 	headquarters 	office 	in
Sacramento 	before 	the close of 	business 	(5:00 p.m.) 	on
February 19, 	1985, 	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, 	sections 3 2300 and
32305.
Dated: 	January 	28, 	1985
MARTIN 	FASSLER
Administrative 	Law 	Judge
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