Imperial Unified School District (PERB 0825E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
IMPERIAL 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
IMPERIAL 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
)
) 	Case No. 	LA-CE-2795
PERB Decision No. 	825
June 	29, 	1990
)
)
)
Appearances: 	Charles R. 	Gustafson, 	Attorney, 	for Imperial
Teachers Association, 	CTA/NEA; 	Littler, 	Mendelson, 	Fastiff &
Tichy by Richard J. 	Currier, 	Attorney, 	for Imperial 	Unified
School 	District.
Before Hesse, 	Chairperson; 	Camilli and Cunningham, 	Members.
DECISION
CUNNINGHAM, 	Member: 	This 	case 	is before the Public
Employment Relations 	Board 	(PERB or Board) 	on 	exceptions 	filed
by 	the 	Imperial 	Teachers 	Association, 	CTA/NEA 	(Association)
and 	exceptions 	filed 	by 	the 	Imperial 	Unified 	School 	District
(District) 	to 	a proposed decision of 	a 	PERB 	administrative 	law
judge 	(ALJ). 	The ALJ found the District violated Educational
Employment Relations Act 	(EERA or Act) 	section 3543.5(b) 	and 	(c)1
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code. 	EERA section 3543.5(b) 	and 	(c) 	states:
It 	shall be unlawful 	for a public 	school
employer to:
(b) 	Deny to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
)
)

(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
by unilaterally 	increasing 	the 	instructional minutes 	at 	Frank M.
Wright 	Intermediate School 	(Frank Wright) 	in the 	1988-89 	school
year 	for 	certificated bargaining unit 	employees. 	Specifically,
the ALJ 	determined 	the 	unilateral 	action taken by 	the 	District
altered a 	consistent past practice 	of 	setting the 	instructional
day at the 	intermediate 	school 	level. 	This 	schedule 	change was
found 	to 	significantly 	affect 	the 	number 	of 	hours 	worked by 	unit
employees. 	The ALJ proposed, as 	a remedy, 	a return to the
instructional 	schedule 	in existence before 	the 	District's 	action.
However, 	monetary damages were not 	included 	in the ALJ's proposed
remedy.
The Board, 	after review of the entire record, 	including
the exceptions 	filed by both parties, 	reverses 	the ALJ's
determination 	that 	the 	District 	violated 	EERA 	section 	3543.5(b)
and 	(c) 	by unilaterally 	increasing 	instructional 	minutes 	in the
1988-89 	school year.
FACTS
Frank Wright and 	Imperial 	High 	School 	(Imperial) 	occupy
the 	same 	site, 	and the 	two 	schools 	share various 	facilities 	and
staff. 	Seven 	certificated 	staff 	members 	perform 	services 	at 	both
schools. 	Students 	from the two 	schools 	ride the 	same buses 	to
and 	from 	school.
In the 	1985-86, 	1986-87 and 	1987-88 	school years, 	Frank
Wright 	teachers 	performed 	a 	class 	schedule 	containing 	335
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instructional minutes divided into 	six periods, 	comprised of
60-55-55-55-55-55 minutes. 	During the 	1986-87 	and 	1987-88 	school
years, 	Imperial teachers worked a 	schedule of 	350 	instructional
minutes, 	divided into 	six periods, 	comprised of 	60-58-58-58-58-58
minutes. 	In the 	1988-89 	school year, 	the District changed the
instructional 	day at 	Frank Wright 	to 	contain the 	same 	number
of minutes 	as 	the 	schedule at 	Imperial, 	specifically by adding
three minutes 	to periods 	two through 	six, 	for a total 	of 	fifteen
additional 	instructional 	minutes 	per day. 	The workday of 	seven
hours 	and 	twenty minutes 	remained unchanged. 	The 	additional
instructional 	minutes were 	taken 	from periods 	before 	and 	after
classes 	during which 	the 	teachers 	had previously 	been required
to 	be present but were 	not 	engaged 	in actual 	student 	instruction.
In the hearing on this matter, 	seven witnesses were 	called
by 	the Association. 	Six 	teacher witnesses 	testified regarding
the effects 	of 	the 	schedule 	change.
The first witness, 	Joanne R. 	Holtz 	(Holtz), 	stated that,
as 	a result of the change, 	she had to make adjustments 	for the
additional 	three minutes 	per period to 	keep 	students working;
that 	the 	time 	for meeting with 	students 	during the 	school 	day
was decreased; 	and, 	although the 	contractual workday remained the
same, 	she had to work before 	and after the workday more 	than 	she
had had to 	in earlier years. 	Holtz did not keep records 	of 	this
increased outside work time. 	Holtz 	also 	stated 	1988-89 was 	not
a typical year, 	due to her maternity 	leave 	for a portion of 	the
school year, 	but did not 	elaborate as 	to what 	effect this 	leave
3
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had on her work.2
Carol 	Keltz 	(Keltz) 	testified 	she 	frequently 	stayed until
4 p.m. 	and sometimes 	5 to 	6 p.m. 	in 	1988-89, 	and that 	she 	spent
more preparation time after the workday 	in 	1988-89, 	as 	compared
to 	1987-88. 	She explained the 	cause of 	this 	extra work time to
be 	the 	increased number of 	language 	arts 	courses which 	she 	taught
in 	1988-89, 	because 	such courses 	carry a 	corresponding 	increase
in paperwork, 	as well as 	the 	elimination of 	some of her available
preparation time before 	and after class. 	Keltz 	also 	stated the
effects 	of 	the 	schedule 	change 	included difficulty 	in keeping
students 	working and 	less 	time 	to meet with 	students 	after 	class,
especially those 	students who ride the 	school bus. 	As 	she uses
pre-prepared 	lesson plans, 	Keltz was 	not required to prepare
additional 	materials 	for the 	longer periods.
John Deagle's 	testimony was 	essentially the 	same 	as 	Keltz's.
He 	mentioned 	specifically 	the 	difficulty 	of 	keeping 	students
working, 	greater disciplinary problems, 	and less time to meet
with 	students 	after class, 	but was 	vague regarding whether the
schedule 	change 	required more 	outside work 	in 	1988-89.
Ruth Ann Baughman 	(Baughman) 	stated 	she was 	aware 	that
additional 	effort was 	necessary to 	fill 	the 	longer periods.
2The 	District's 	exception to 	the ALJ's 	characterization
of 	Holtz's 	testimony is well-taken. 	The ALJ 	stated Holtz 	found
it 	necessary to 	conduct conferences 	on her own time, 	beyond the
regular workday, 	as a result of the change. 	However, 	the record
reflects 	that Holtz's 	statement was, 	"If 	I wanted to extend my
day, 	and use, 	basically, 	my own time to do that, 	yes, 	I could
meet with 	students." 	No 	actual 	meetings with 	students 	are
referenced by 	this 	statement.
4

However, 	Baughman could not 	specifically 	state 	she devoted more
time 	outside her workday 	involved 	in preparation 	in 	1988-89 	than
she had 	expended 	in 	1987-88.
Judith Ann Greeno 	stated 	she 	spent 	more time 	in preparation
outside the workday 	in 	1988-89. 	She 	stated this was 	because,
"I had a 	lot more--a lot more to do, 	I 	couldn't keep up."
Thomas Rails 	(Rails) 	first stated that, 	due to the change,
he 	either had 	to 	arrive 	at 	school 	earlier or take 	materials 	home
in order to 	complete his 	duties, 	but 	subsequently admitted that
his 	amount of preparation varied daily. 	He 	further 	said he
gave 	up 	his 	duty-free 	lunch quite 	a bit more 	in 	1988-89 	to meet
individually with 	students. 	Rails 	admitted that, 	in 	1988-8 9,
he 	gave 	up his 	preparation period to 	teach an extra 	class 	for
increased pay. 	He 	also 	admitted he 	kept no records 	regarding
the 	amount 	of 	increased outside 	time 	expended 	in 	1988-8 9.
DISCUSSION
In its 	exceptions, 	the District argues 	generally that the
ALJ 	improperly 	found 	a violation of 	EERA based 	on the 	unilateral
schedule 	change. 	The District 	also 	contends 	the ALJ made
numerous 	inaccurate 	factual 	findings, 	as well as 	incorrect
legal 	conclusions. 	These 	exceptions 	are discussed below.
Because 	the Act 	is 	designed to 	foster the 	negotiation
process, 	PERB has determined that an unfair practice, 	in the
form of 	a unilateral 	change 	in established policy, 	occurs when
a 	change 	is 	affected 	in the understanding between the parties,
whether 	such 	understanding 	is 	evidenced by a 	collective
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bargaining agreement 	or past practice. 	(Grant 	Joint 	Union
High School District 	(1982) 	PERB Decision No. 	196, 	p. 	8.)
Such a change 	in established policy, 	by definition, 	must have
a 	generalized 	effect 	or 	continuing 	impact upon the 	terms 	and
conditions 	of 	employment of bargaining unit members.3 (Id. 	at
p. 	9.)
In Modesto City Schools 	and High School 	District 	(1985) 	PERB
Decision No. 	541, 	the Board determined that, 	for purposes 	of an
unfair practice charge, 	a consistent past practice on a district-
wide basis 	is of relevant concern. 	Here, 	the District argues
there was 	no 	districtwide past practice 	regarding 	instructional
minutes 	and, 	on this basis, 	this case must be dismissed. 	The
Association 	in turn points 	to 	the 	schedule which had 	been 	in
place for the three previous 	school years 	at Frank Wright. 	In
his 	analysis, 	the ALJ 	correctly noted that any 	comparison under
the Modesto rule must be made with other 	schools 	at 	the 	same
level within a district, 	due to the unique educational
requirements 	of the 	intermediate grade 	levels.
Here, 	Frank Wright is 	the only intermediate 	level 	school
in the District. 	Thus, 	in analyzing 	"districtwide" 	practice,
the Association's 	argument 	that 	the 	District had 	a past practice
3 The 	District 	argues 	that 	this 	schedule 	change had 	no 	effect
on unit 	employees 	generally, 	as 	only Frank Wright teachers were
affected and, 	thus, 	under NLRB precedent, 	the change in schedules
did not violate the duty to bargain in good faith. 	However, 	as
stated, 	PERB precedent requires 	a 	finding of violation of 	this
duty when a 	change 	in policy has 	a 	generalized 	effect 	or
continuing 	impact upon the 	terms 	and 	conditions 	of 	employment.
(Grant Joint Union High School District, 	supra. 	PERB Decision
No. 	196.)
6
'
----------- ----------· 	- 	-·
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of 	setting 	instructional 	minutes 	at 	the 	intermediate 	level 	(that
is, 	at Frank Wright alone) 	is consistent with Modesto. 	The
District argues 	that Frank Wright and 	Imperial 	are, 	in effect,
one 	school and, 	thus, 	a past practice of treating both 	schools
as 	one 	existed, 	so that no violation of 	the Act resulted 	from the
schedule 	change. 	Although these 	schools 	share the 	same 	campus
and many of 	the 	same 	facilities, 	they have different names,
almost 	totally different 	certificated 	staffs 	and 	different 	bell
schedules, 	all of which demonstrate that the District, 	in fact,
treated 	these 	schools 	as 	separate 	entities. 	The ALJ 	correctly
concluded 	that 	an 	established 	practice 	regarding 	instructional
minutes was 	changed by the District, 	without notice 	to the
Association, 	in the 	1988-89 	school year. 	Notwithstanding this
initial determination, 	further analysis 	of 	the District's 	actions
is 	required to determine 	if 	a violation of 	the Act 	occurred.
PERB 	law generally views 	the 	length of 	the 	instructional
day as 	a 	management prerogative which 	is 	outside 	the 	scope 	of
representation. 	(Jefferson School 	District 	(1980) 	PERB 	Decision
No. 	13 3.) 	Thus, 	employers are generally free to alter the
instructional 	schedule without 	prior 	negotiation with 	employee
organizations. 	However, 	when changes 	in the instructional day in
turn 	affect 	the 	length of 	the working day 	or 	existing duty-free
time, 	the subject is negotiable. 	Similarly, 	to the extent
changes 	in preparation time 	affect 	the 	length of 	the 	employees'
workday or existing duty-free time, 	that 	subject 	is 	negotiable.
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(San Mateo City School District 	(1980) 	PERB Decision No. 	129.4)
Several PERB cases 	address 	the 	issue of what 	level 	of 	effect
on the workday or duty-free 	time must be 	shown to 	establish 	a
violation of 	the Act.
The Board, 	in Fountain Valley Elementary School 	District.
supra, PERB Decision No. 	625, 	addressed a unilateral 	thirty-
minute 	increase 	in the 	instructional 	day at 	the 	first- 	and
second-grade 	levels. 	One teacher testified 	she 	spent 	one 	and
one-half 	to 	two hours 	more per day working 	outside 	the 	regular
school 	day than 	she had before 	the 	change. 	Another teacher
stated 	she worked 	forty minutes 	to 	one 	hour more 	outside 	the
workday 	after the 	change. 	The 	District's witnesses 	admitted
that 	thirty 	additional 	instructional 	minutes 	would 	necessitate
additional preparation time. 	The 	Board 	found the 	evidence
demonstrated an impact on employees' 	after-school duty-free
time and, 	thus, 	the unilateral 	schedule change violated the Act.
In Corning Union High 	School 	District 	(1984) 	PERB 	Decision
No. 	399, 	the Board was 	faced with a 	situation in which the
District 	unilaterally 	increased 	the 	instructional 	day by
substituting 	a 	teaching period 	for 	a preparation period. 	A
business 	teacher testified that, 	before elimination of 	the
4Although 	San Mateo was 	annulled by 	the 	Supreme 	Court
on remand in June 	1984, 	PERB came to the 	same conclusion it
reached 	originally 	regarding 	the 	district's 	obligation 	to
negotiate 	about 	instructional 	time 	and preparation time.
(Healdsburg Union High School 	District 	(1984) 	PERB 	Decision
No. 	375; 	see also Fountain Valley Elementary School District
(1987) 	PERB Decision No. 	625 	and Victor Valley Union High 	School
District 	(1986) 	PERB Decision No. 	565.)
8

preparation period, 	he 	spent 	approximately one hour per week
after 	school hours 	engaged 	in preparation. 	After the 	change,
he 	stated he 	spent 	approximately 	one 	hour 	each 	night 	doing
preparation work. 	Six 	other witnesses 	presented 	similar 	specific
testimony 	regarding 	the 	effect 	of 	this 	schedule 	change 	on their
workday. 	The 	Board 	concluded 	the 	District 	unlawfully 	altered
its 	past practice through this 	increase 	in instructional 	minutes.
The 	District 	takes 	exception to 	the ALJ's 	finding that
Moreno Valley Unified School 	District 	(1982) 	PERB 	Decision
No. 	206 	is analogous to the present case. 	In Moreno, 	the
district 	eliminated 	five 	minutes 	from 	the 	50-minute 	preparation
period 	at 	the beginning 	of 	the 	day previously 	available 	to
teachers 	of 	grades 	four through 	six. 	The 	Board 	found an 	impact
on teachers' 	workday to be apparent based on the 	evidence that
the district 	continued to require 	the 	same 	level 	of preparation
as before the change.
Notwithstanding 	any 	similarities 	Moreno 	shares 	with 	the
present 	case, 	Moreno appears 	to presume an effect on length
of workday or 	existing duty-free 	time 	by a 	schedule 	change 	of
this 	nature. 	This presumption is 	contrary to Board precedent 	in
this 	area and, 	in effect, 	it lifts 	any burden of proof 	from the
charging party. 	(See Modesto City Schools 	(1983) 	PERB Decision
No. 	291, 	p. 	13.) 	Accordingly, we overrule Moreno insofar as it
fails 	to 	correctly apply this 	burden of proof.
The Association argues 	that this 	case 	is 	similar to Victor
Valley Union High School District, 	supra, 	PERB Decision No. 	565.
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Victor Valley 	involved 	an 	increase 	of 	ten minutes 	per day 	in
instructional 	time. 	Two teachers 	testified regarding 	impact
of the 	schedule 	change. 	One teacher 	stated 	she was 	required
to 	expend extra 	effort 	in the 	form of 	revising 	lesson plans.
Another 	teacher testified he was 	required to prepare progress
reports, 	grade papers and perform 	similar chores 	outside the
workday as 	a result of the change. 	Also, 	a District witness
admitted 	that 	the 	6-hour 	and 	25-minute workday 	required 	some
work be 	completed during off-duty hours. 	In addition, 	in Victor
Valley 	the 	Board 	found 	that 	a 	generalized, 	continuing 	impact 	on
all 	teachers 	could be 	inferred 	from the 	testimony 	of 	the 	two
witnesses. 	In this case, 	however, 	unlike Victor Valley, 	there
were 	inconclusive 	statements 	from 	several witnesses 	which do 	not
support 	a determination of 	impact on nonwork time.
The ALJ 	concluded 	that 	the 	increase 	in 	instructional
time had, 	at most, 	a minimal 	impact on preparation time, 	which
impact 	could not be 	quantified with 	certainty. 	In apparent
contradistinction to 	such 	finding, 	however, 	the ALJ concluded the
number of 	hours 	worked by 	the 	teachers 	was 	significantly 	affected
by the change. 	In support of this 	latter conclusion, 	he 	stated
the 	instructors 	found 	it 	necessary 	to 	schedule 	conferences 	with
parents 	and 	students 	before 	and 	after 	their workday and 	that 	one
instructor was 	forced to 	give up his 	duty-free 	lunch period.5
S5The ALJ 	appeared to 	specifically discredit 	the 	testimony
of 	Rails which 	indicated that Rails 	gave up his 	lunch period
quite a bit more 	in 	1988-89 	than in 	1987-88 	to 	counsel 	students.
However, 	the ALJ 	later relies 	on this 	testimony in 	support of 	his
conclusion that 	the 	schedule 	change 	impacted the workday. 	Because
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this 	testimony was discredited, 	it 	should not have been relied
upon as 	a basis 	for a 	finding, 	and we refrain from doing 	so
herein.
In further 	support of the above 	conclusion, 	the ALJ 	found
the 	increase 	in 	instructional 	minutes 	affected the 	instructors'
discretionary 	or duty-free 	time 	before 	and 	after 	classes 	and
during lunch periods. 	It was undisputed, 	according to the ALJ,
that, 	after the 	schedule change, 	the teachers were required to
engage 	in more 	instructional 	activities, 	with 	increased
disciplinary problems, 	during time 	they otherwise would have used
for rest, 	student meetings 	or other discretionary activities.
Implicit 	in this 	statement 	is 	the assumption that 	the periods
before 	and after the 	instructional 	day were duty-free 	in nature,
and that, 	by their reduction, 	a 	finding of 	impact on existing
duty-free 	time 	is 	necessitated.
The 	evidence does 	not 	support 	the ALJ's 	characterization of
these periods 	as 	duty-free. 	The District correctly argues 	that
only the 	lunch period was 	shown to be duty-free. 	Accordingly,
the Association must 	show the 	schedule 	change 	had 	an 	impact 	on
the 	length 	of 	the workday 	or 	on the 	existing duty-free period--
specifically, 	the lunch period.
We 	find the ALJ's 	ruling that 	the number of hours worked
by 	the 	employees 	was 	significantly 	affected by 	the 	schedule
change 	to 	also be unsupported by the 	record. 	As 	noted 	above,
the ALJ erred in finding that, 	because of the change, 	Holtz was
forced to 	conduct 	student 	conferences 	before 	and 	after work
hours. 	Furthermore, 	only three witnesses who testified regarding
11

impact 	indicated the 	change had 	some 	effect on the workday; 	the
testimony of 	one of 	those was 	Holtz, 	and the other testimony was
discredited by the ALJ. 	Indeed, 	no witness was 	able to 	estimate
the 	extra amount of 	off-duty time 	expended, 	and one witness
refused 	to 	state under oath that 	she 	felt 	she 	spent more 	time
outside the workday in preparation as 	a result of 	the 	change.
Lastly, 	the ALJ 	specifically discredited the testimony of 	two
witnesses,6 Judith Greeno and Rails, 	that 	indicated the 	increase
in 	instructional 	minutes 	substantially 	increased 	their 	off-duty
preparation time.
All 	of 	these 	factors 	lead to 	the 	conclusion that 	the
Association failed 	in its 	burden, 	as 	a part of 	its prima 	facie
case, 	to 	show the 	schedule change 	impacted the 	length of 	the
teachers' 	workday or their existing duty-free time. 	The ALJ,
in refusing to award damages 	in this 	action, 	found that none 	of
the Association's witnesses 	could give 	even a 	rough 	estimate 	as
to 	additional 	time expended, 	and that monetary damages 	in 	such
a 	case would be too 	speculative. 	The 	failure 	of 	evidence upon
which the ALJ relies 	in denying restitution damages, 	likewise
also 	causes 	the prima 	facie case to 	fail because there 	is 	simply
insufficient 	evidence of 	impact 	on nonwork time. 	In Modesto 	City
Schools. 	supra. 	PERB Decision No. 	291, 	at page 13, 	the Board
reversed 	the 	decision of 	an ALJ who 	found 	a 	violation based 	on a
unilateral 	elimination of a preparation period, 	but who refused
to 	award 	lost 	compensation based on the violation. 	The 	Board
6See ante. 	footnote 5, page 11.
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determined 	the 	charging party 	failed 	to 	demonstrate 	that 	the
schedule 	change 	in fact 	extended the workday and, 	thus, 	did not
meet its burden of proof. 	Here, 	the Association has 	similarly
failed 	in this 	regard. 	Consequently, 	we reverse the ALJ's
proposed decision as 	it 	holds 	the 	District 	violated 	EERA 	section
3543.5(b) 	and 	(c) 	by unilaterally increasing instructional
minutes 	in the 	1988-89 	school 	year 	for 	certificated 	employees 	at
Frank Wright.7
ORDER
Based on the 	foregoing, 	the Association's 	complaint 	in Case
No. 	LA-CE-2795 	is hereby DISMISSED.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
7Because we 	find that 	no violation of 	the Act 	occurred, 	we
specifically do 	not 	address 	the 	appropriateness 	of 	the 	remedy 	in
the 	proposed 	decision and 	the Association's 	exceptions 	relating
to it.
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