Antelope Valley Union High School District (PERB 1287E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
ANTELOPE VALLEY UNION HIGH SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3821
PERB Decision No. 	1287
September 	25, 	1998
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Appearance: 	Lozano, 	Smith, 	Smith, 	Woliver & Behrens by-
Christine M. 	Wagner, 	Attorney, 	for Antelope Valley Union High
School District.
Before Caffrey, 	Chairman; 	Amador and Jackson, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the Antelope Valley Union High School 	District 	(District) 	to a
proposed decision 	(attached) 	by a 	PERB 	administrative 	law judge
(ALJ). 	In the proposed decision, 	the ALJ found that the District
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment 	Relations Act 	(EERA)1 by unilaterally changing
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights

promotional 	interview policies. 	The ALJ dismissed allegations 	by
the California School 	Employees Association 	(CSEA) 	that 	the
District 	unilaterally 	changed 	disciplinary procedures 	and
grievance policies.
guaranteed by 	this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(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.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including 	the unfair practice 	charge, 	the ALJ's proposed decision
and the District's 	exceptions. 	The Board affirms 	the ALJ's
decision in part, 	and reverses 	it 	in part, 	in accordance with the
following 	discussion.
DISCUSSION
The Board finds 	the ALJ's 	findings 	of 	fact 	to be 	free of
prejudicial 	error and hereby adopts 	them as 	the 	findings 	of 	the
Board 	itself.
The 	Board 	finds 	the ALJ's 	conclusions 	of 	law concerning the
alleged 	changes 	in disciplinary procedures 	and 	grievance 	policies
to be 	free 	of prejudicial 	error and hereby adopts 	them as 	the
decision of 	the Board 	itself. 	CSEA offered no 	exceptions 	to 	the
ALJ's 	dismissal 	of 	its 	charge 	relating 	to 	these allegations.
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The District 	excepts 	to 	the ALJ's 	finding 	that promotional
interview policies 	were 	unilaterally 	changed by the 	District 	in
violation of 	the 	EERA.
To prevail 	in a unilateral 	change 	case, 	the 	charging party
must 	establish that 	the 	employer, 	without providing the 	exclusive
representative with notice 	or the 	opportunity 	to bargain,
breached or altered the parties' 	written agreement 	or established
past practice 	concerning a matter within 	the 	scope 	of
representation, 	and that 	the 	change had a generalized effect 	or
continuing 	impact 	on the 	terms 	and 	conditions 	of 	employment 	of
bargaining unit members. 	(Pajaro Valley Unified School 	District
(1978) 	PERB Decision No. 	51 at pp. 	5-6 	(Pajaro Valley): 	Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196 at
p. 	10.)
As 	noted by the ALJ, 	the District 	and CSEA were parties 	to a
collective bargaining agreement 	(CBA) 	with a term of 	January 	1,
1994 	through December 31, 	1996. 	At 	the time of 	the alleged
unilateral 	change 	in promotional 	interview policy 	in early 	1997,
the parties' 	successor CBA had not gone 	into effect. 	It 	is a
fundamental 	rule 	of 	labor 	law that 	certain 	terms 	and 	conditions
of 	employment must 	remain 	in effect 	following 	the 	expiration of 	a
CBA during the parties' 	negotiations 	over a 	successor agreement.
(State 	of 	California 	(Department 	of 	Forestry and 	Fire 	Protection)
(1993) 	PERB Decision No. 	999-S at pp. 	8-9; 	Pajaro Valley at p. 	6;
San Mateo County Community College District 	(1979) 	PERB Decision
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No. 	94 at p. 	17; 	California State Employees' Assn. v. 	Public
Employment Relations Bd. 	(1996) 	51 Cal.App.4th 923, 	936
[59 	Cal.Rptr.2d 488].) 	Therefore, 	provisions of the parties'
1994-96 	CBA remained 	in effect 	in early 	1997 at 	the 	time 	of 	the
disputed 	conduct 	in this 	case.
However, 	it 	is also clear that a waiver of 	the 	statutory
right 	to bargain, 	such as 	reflected 	in a 	zipper clause within a
CBA, 	does 	not 	remain 	in effect beyond the negotiated term of 	the
CBA absent 	the 	expressed agreement 	of 	the parties. 	(Rowland
Unified School District 	(1994) 	PERB Decision No. 	1053 	at p. 	10.)
Therefore, 	while provisions 	of 	the parties' 	1994-96 	CBA remained
in effect 	subsequent 	to contract 	expiration in early 1997, 	the
District 	and 	CSEA were 	obligated 	to bargain 	over negotiable
subjects 	within 	the 	context 	of 	their 	successor agreement
negotiations. 	The 	record reflects 	that 	the parties were 	engaged
in that process 	in early 1997.
Among the provisions of 	the parties' 	1994-96 	CBA, 	which
remained in effect 	in early 1997, 	is Article XVII 	concerning
District Rights. 	It states, 	in pertinent part:
17.0 	All 	matters 	not 	specifically enumerated
as within the 	scope 	of negotiations 	in
Government 	Code 	Section 	3543.2 	are
reserved to the District. 	It 	is agreed
that 	such reserved rights 	include, 	but
are not 	limited to, 	the exclusive 	right
and power to determine, 	implement,
supplement, 	change, modify, 	or discontinue,
in whole or in part, 	temporarily or
permanently, 	any of 	the 	following:
17.6 	The selection, 	classification,
direction, promotion, demotion, discipline,
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and 	termination of 	all 	personnel 	of 	the
District. . . .
The District 	asserts 	that 	this provision gives 	it 	the 	clear
management 	right 	to 	change promotional 	interview policy.
The ALJ deals with 	this 	assertion briefly 	in footnote 	5 	at
p. 	18 	of 	the proposed decision, 	which states in part:
. 	. 	. 	although Article XVII of the agreement
generally 	reserved District 	rights 	as 	to 	the
'promotion 	. . . 	of 	all 	personnel 	of 	the
District,' 	there was no specific language 	in
the 	agreement 	covering 	interview procedures.
(Cf. 	Solano County Community College District
(1982) 	PERB Decision No. 	219.)
In Solano County Community College District 	(1982) 	PERB
Decision No. 	219 	(Solano). 	a case which was decided in 1982, 	the
Board 	concluded 	that 	a 	contractual 	provision giving 	the 	employer
the 	right 	to direct, 	assign and transfer employees 	and determine
staffing patterns 	did not 	allow the 	employer to unilaterally
transfer work 	from 	the 	classified bargaining unit 	to 	the
certificated bargaining unit. 	(Ibid, 	at pp. 	10-11.) 	However,
Solano 	is 	distinguishable 	from the 	instant 	case 	in that 	the
disputed conduct, 	the transfer of bargaining unit work, 	was
clearly not addressed in the contractual provision. 	Here, 	the
disputed 	conduct 	involves 	the 	selection and promotion 	of 	District
personnel, 	a subject 	clearly referenced in Article XVII 	of 	the
parties's 	CBA. 	The 	issue 	in this 	case 	is whether that 	CBA
language 	allows 	the 	specific 	action 	taken by the District.
The 	California Civil 	Code provides 	guidance 	in the
interpretation of 	contractual 	language. 	Civil 	Code 	section 	1638
states:
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INTENTION TO BE ASCERTAINED 	FROM LANGUAGE.
The 	language of 	a 	contract 	is 	to govern 	its
interpretation, 	if 	the language 	is clear and
explicit, 	and does not 	involve an absurdity.
Additionally, 	Civil 	Code section 1641 	states:
EFFECT TO BE GIVEN TO 	EVERY 	PART OF 	CONTRACT.
The whole 	of a 	contract 	is 	to be 	taken
together, 	so as 	to give effect 	to every part,
if 	reasonably practicable, 	each clause
helping 	to 	interpret 	the 	other.
The Board follows 	this guidance 	in unilateral 	change 	cases 	in
assessing whether the parties' 	written agreement 	has 	been
breached, 	or alternatively allows 	the 	employer to 	take 	the action
which forms 	the basis of 	the dispute.
The 	Board 	recently 	considered a 	case 	involving 	the 	issue 	of
whether 	a broad 	employer 	rights 	provision 	of 	a 	CBA allowed 	the
employer to 	take 	specific unilateral 	action. 	In Barstow Unified
School District 	(1996) 	PERB Decision No. 	1138 	(Barstow) 	at p. 	16,
the 	Board determined 	that 	a provision giving 	the 	employer 	the
authority 	to 	"contract 	out 	work" 	allowed 	the 	employer 	to 	contract
out pupil 	transportation 	services, 	even though the provision was
general 	and did not 	refer 	to any 	specific 	service 	to be
contracted out. 	In Barstow, 	the Board reversed the proposed
decision 	of 	the ALJ which held that 	the 	CBA language 	did not
allow 	the 	action 	taken by 	the 	employer.
The 	instant 	case 	is 	similar to Barstow in that 	the Board
must 	decide 	whether 	the broadly worded portion 	of 	CBA
Article 	XVII 	concerning 	selection and promotion 	of 	personnel
allows 	the District 	to make 	the 	change 	to 	its 	promotional
interview policy which forms 	the basis 	of 	this 	dispute.
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CBA Article XVII 	indicates 	that 	the parties 	have 	agreed 	that
the District 	has 	"the 	exclusive 	right 	and power" 	to 	change 	or
modify the 	"selection" 	and 	"promotion" 	of 	"all personnel 	of 	the
District." 	The District may make 	changes 	"in whole 	or 	in part,
temporarily 	or permanently." 	This 	language 	clearly and
explicitly gives 	the 	District 	very broad authority 	over 	selection
and promotion of District personnel. 	To 	find that 	this 	language
does 	not 	allow the District 	to make a 	specific modification, 	such
as 	a 	change 	in the number of promotional 	candidates 	to be
interviewed in personnel 	selection, 	would be to 	ignore 	its 	clear
and explicit meaning. 	Further, 	such an interpretation would
essentially 	render 	the 	language meaningless 	and 	ineffective,
since presumably no 	specific 	change 	in personnel 	selection or
promotion could occur pursuant 	to 	this 	language. 	In accordance
with Civil 	Code 	section 	1641, 	the Board avoids 	an 	interpretation
of 	contract 	language which 	leaves 	a provision without 	effect.
(Riverside 	Community College District 	(1992) 	PERB Order
No. 	Ad-229 at pp. 	3-4; 	Barstow.) 	In order to give meaning to the
language 	of 	CBA Article XVII, 	it must be 	interpreted as giving
the District 	the 	right 	to 	change 	the way personnel 	are 	selected
and promoted. 	Therefore, 	the action which forms 	the basis 	of
this 	dispute 	is 	clearly and 	explicitly authorized by 	the 	CBA and
there was no breach of the parties' 	written agreement.
The Board also notes 	that 	the 	fact 	that an employer has 	not
exercised contractual 	rights 	in the past, 	does not preclude 	it
from doing 	so 	in the 	future. 	(Marysville Joint Unified School
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District 	(1983) 	PERB Decision No. 	314.) 	Therefore, 	the fact that
the 	District 	previously 	interviewed all 	promotional 	candidates
for positions 	did not 	diminish 	its 	ability 	to 	change promotional
interview policy pursuant 	to 	the 	clear and explicit 	language 	of
CBA Article XVII.
Summarizing, 	CBA Article XVII 	remained in effect 	in 1997 at
the 	time 	the disputed conduct 	in this 	case 	occurred. 	CBA
Article XVII 	clearly gives 	the District 	the 	right 	to 	change
selection and promotion of 	all 	personnel 	of 	the District,
including 	the 	right 	to change 	the number of promotional
candidates 	to be 	interviewed 	in personnel 	selection. 	Therefore,
the District 	did not breach the parties' 	CBA and did not violate
EERA section 3543.5(a), 	(b) 	and 	(c) 	when it took that action.
ORDER
The 	unfair practice 	charge and 	complaint 	in 	Case
No. 	LA-CE-3821 	is 	hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Amador and Jackson 	joined 	in 	this 	Decision.
88

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
ANTELOPE VALLEY UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
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) 	Unfair 	Practice
Case No. 	LA-CE-3821
PROPOSED DECISION
(6/1/98)
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Appearances: 	Carol Finck, 	Labor Relations Representative, 	for
California School Employees Association; 	Lozano, 	Smith, 	Smith,
Woliver & Behrens by Christine M. 	Wagner, 	Attorney, 	for Antelope
Valley Union High 	School 	District.
Before Thomas J. 	Allen, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In this 	case, 	a union representing classified employees
alleges 	a 	school 	district 	made 	three 	unilateral 	changes 	of
policy. 	The 	District 	denies 	the 	allegations 	and contends 	the
dispute 	should be deferred to the parties' 	grievance 	and
arbitration process.
The 	California 	School 	Employees Association 	(CSEA) 	filed an
unfair practice 	charge 	against 	the Antelope 	Valley Union High
School District 	(District) 	on July 18, 	1997. 	The Office of the
General 	Counsel 	of 	the 	Public 	Employment 	Relations Board 	(PERB)
issued a complaint on October 1, 	1997, 	alleging the District 	had
unilaterally 	changed policies 	concerning 	disciplinary procedures,
grievances, 	and promotional 	interviews. 	The District 	filed an
answer on October 23, 	1997, 	denying any unilateral changes.

PERB held a 	formal 	hearing on February 18, 	1998. 	With the
filing of post-hearing briefs on May 20, 	1998, 	the case was
submitted 	for 	decision.
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer under the
Educational 	Employment 	Relations Act 	(EERA).1 CSEA 	is 	an
employee 	organization under EERA and 	is 	the 	exclusive
representative 	of 	the 	District's 	classified 	employee 	bargaining
unit.
The 	District 	and CSEA were 	parties 	to 	a 	collective
bargaining agreement 	for the 	term January 1, 	1994, 	through
December 31, 	1996. 	Article XIV of 	this 	agreement 	(Grievance 	and
Arbitration) 	provided for binding arbitration of grievances, 	but
section 	14.2.14 	stated 	CSEA 	itself 	could 	grieve 	only with 	respect
to violations 	of 	rights 	"specifically granted 	to 	the Association
[CSEA] 	by an express provision of 	this 	agreement." 	Section
14.4.3.5 	stated in part, 	"The 	arbitrator shall 	have 	no power to
render 	an 	award on 	any grievance 	occurring before 	or 	after 	the
term of 	this 	agreement."
On October 1, 	1997, 	the District Board of Trustees approved
a new agreement 	for the 	term January 1, 	1997, 	through June 	30,
1999. 	Article XIV of 	this 	agreement 	again provided 	for binding
arbitration, 	but 	section 	14.2.14 	again 	limited CSEA grievances 	to
rights 	"specifically granted 	to 	the 	Association 	by 	an 	express
JEERA 	is 	codified at 	Government 	Code 	section 	3540 	and
following. 	Unless 	otherwise 	indicated, 	all 	statutory references
are 	to the 	Government 	Code.
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provision of 	this 	agreement." 	Although 	the 	salary 	increases
provided by the agreement were 	retroactive 	to January 1, 	1997,
Article XXIII 	(Duration) 	otherwise 	stated the 	agreement 	"shall
become effective upon Board adoption on October 	1, 	1997." 	There
was 	no 	language 	in 	the 	agreement 	specifically making 	its
arbitration provisions retroactive to January 1, 	1997, 	and
section 	14.4.3.5 	again gave 	the 	arbitrator 	"no power 	to 	render an
award on 	any grievance 	occurring before 	or 	after 	the 	term of 	this
agreement."
Jan Medema 	(Medema), 	the District's personnel 	director since
1994, 	testified arbitration of grievances was nonetheless
available 	throughout 	the 	first part 	of 	1997 	"[b]ased 	on 	the
retroactivity of 	the 	[1997-1999] 	contract." 	Medema did not
explain how this was 	consistent with Article XXIII, 	which made
the 	agreement 	effective 	"upon Board adoption on October 	1, 	1997."
She 	also 	did not 	explain 	how 	CSEA could 	have 	invoked 	arbitration
based on an agreement 	not yet 	in existence.2 I 	do not 	find
Medema's 	testimony on 	this 	point 	credible 	as 	something 	a 	labor
relations professional might 	sincerely believe, 	and this
testimony damaged 	her 	credibility generally. 	Medema 	further
damaged her 	credibility by 	testifying 	evasively when 	cross-
examined 	about 	her knowledge 	of 	a 	1995 	arbitrator's 	decision
2Section 	14.4.3.1 	of 	the 	agreement 	required CSEA to 	invoke
arbitration, 	which was Level 	III of the grievance process, 	within
10 	days after the termination of Level 	II. 	Thus, 	once the
agreement became effective on October 1, 	1997, 	its arbitration
provisions 	could possibly have 	been 	invoked only as 	to grievances
for which Level 	II 	was 	terminated 	in or after 	late 	September
1997.
w	
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holding a 	grievance 	inarbitrable because 	the parties' 	agreement
had 	expired.
Article XXI 	of 	the 	1994-1996 	agreement 	(Entire Agreement)
stated 	in part:
21.1 	It 	is 	agreed 	that 	during 	the 	term of
this agreement, 	the parties waive and
relinquish the 	right 	to meet 	and
negotiate 	and 	agree 	that 	the 	parties
shall 	not 	be 	obligated to meet 	and
negotiate 	with respect 	to 	any subject 	or
matter 	covered 	in this 	agreement 	even
though 	such 	subjects 	or matters 	were
proposed 	and 	later withdrawn.
Article XVII 	of 	the 	agreement 	(District Rights) 	stated in part:
17.0 	All 	matters 	not 	specifically
enumerated as 	within the 	scope 	of
negotiations 	in Government 	Code
Section 3543.2 	are 	reserved to the
District. 	It 	is 	agreed that 	such
reserved rights 	include, 	but 	are
not 	limited to, 	the exclusive right
and power to determine, 	implement,
supplement, 	change, modify, 	or
discontinue, 	in whole or in part,
temporarily or permanently, 	any of
the 	following:
17.6 	The 	selection, 	classification,
direction, promotion, 	demotion,
discipline, 	and termination of all
personnel of the District, 	. 	. 	.
Other 	articles 	in 	the 	agreement 	included Article 	VIII
(Promotion), 	Article XIV 	(Grievance and Arbitration) 	and
Article XXII 	(Disciplinary Action).
Disciplinary 	Procedures
Article XXII 	(Disciplinary Action), 	section 22.0, 	defined
disciplinary action as 	suspension, 	demotion or discharge. 	In
section 22.1, 	the parties 	acknowledged informal 	corrective
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measures 	such as 	conferences were 	not 	disciplinary actions.
Section 	22.3 	required the 	District 	to give 	a permanent 	unit
member written notice 	of 	disciplinary action, 	including 	specific
charges 	and a 	statement 	"informing the 	unit 	member of 	his 	right
to 	a pre-disciplinary hearing before 	the 	District 	Superintendent
or his/her designee." 	Under section 22.4, 	the notice was 	to be
accompanied by a 	"demand 	for 	hearing" 	form 	for 	the 	unit 	member 	to
sign, 	date and file.
According to 	section 22.5, 	the pre-disciplinary hearing
"shall 	constitute 	the 	hearing 	required by Section 	45113 	of 	the
Education Code," 	which incorporates 	the 	basic 	constitutional
rights recognized in Skellv v. 	State 	Personnel 	Bd. 	(1975) 	15
Cal.3d 194 	[124 	Cal.Rptr. 	14] 	(Skellv). 	Section 22.5 also stated
the 	hearing would be 	convened 	"not 	less 	than five 	(5) 	and not
more 	than ten 	(10) 	days 	after the date of 	service of 	the notice
of 	disciplinary action on the 	unit member." 	The unit 	member
could 	be 	represented 	and would 	have 	the 	opportunity 	to 	present
evidence 	"relative 	to 	the 	disciplinary action of 	which the 	unit
member received notice." 	In practice, 	the hearings were held
before 	the 	District's Assistant 	Superintendent 	of 	Personnel
Services.
On April 	15, 	1997, 	the CSEA chapter president, 	another unit
member, 	and a 	CSEA representative met 	with personnel 	director
Medema 	to discuss 	some grievances 	filed by the 	unit 	member.
Medema, 	however, 	said the meeting would be a Skelly hearing 	for
UT	
5

the unit 	member.3 The 	CSEA representative 	asked 	that 	the 	meeting
be 	rescheduled, 	because 	the unit 	member could not 	properly defend
herself 	without 	notice. 	Medema 	refused to 	reschedule 	the
meeting, 	but 	she 	did 	say the unit 	member 	could 	later appeal 	to
the 	Superintendent 	or the 	Board of 	Trustees. 	Medema 	also 	said
she 	had been 	advised 	the 	District 	had been 	doing 	Skelly hearings
all wrong.
It 	is not 	clear 	from the 	evidence 	exactly what 	happened 	for
the rest of 	the meeting. 	As 	far as 	the evidence 	shows, 	the unit
member 	said 	she was 	a good employee, 	could not 	understand why she
was 	there, 	and needed to keep her job. 	No disciplinary action
was 	taken 	against 	the unit 	member at 	that point.
Some two weeks 	later, 	on May 1, 	1997, 	the District 	sent 	the
unit 	member a notice 	of 	disciplinary action, 	indicating her
termination was 	being recommended. 	The 	notice 	included a
statement 	of 	charges 	with 	supporting documents 	and a 	"demand 	for
hearing" 	form. 	On May 16, 	1997, 	the unit member signed and filed
the 	form, 	acknowledging 	she 	had received the notice 	on that 	date.
The 	unit 	member 	initialed a notation on 	the 	form 	scheduling 	a
hearing for May 23, 	1997.
When the May 23 	hearing took place, 	the Assistant
Superintendent 	of 	Personnel 	Services 	and 	a 	CSEA steward were 	in
attendance, 	in addition to all 	those who 	attended the April 	15
meeting. 	Medema 	again said 	the 	meeting would be 	a 	Skelly hearing
3Medema denied saying this, 	but 	I 	credit 	the 	CSEA
president's 	testimony, 	which was 	corroborated by other evidence,
over Medema's 	testimony, 	which was not 	corroborated.
66

for the unit 	member. 	A copy of 	the 	notice 	of 	disciplinary action
was 	given 	to 	the unit 	member, 	who denied having already received
it. 	CSEA objected to 	the 	apparent 	lack of prior notice, 	but 	the
meeting proceeded. 	In a 	caucus, 	the unit member said she 	felt
she 	had 	incriminated herself 	at 	the April 	15 	meeting and could
not win. 	The unit member chose 	to resign.
Grievances
Article 	XIV 	(Grievance 	and Arbitration) 	established 	a
grievance 	procedure 	with one 	informal 	level 	and three 	formal
levels. 	At 	the 	informal 	level, 	section 14.3 	stated, 	"Before
filing a 	formal 	written grievance, 	the unit member 	shall 	attempt
to 	resolve 	the 	complaint 	by an 	informal 	conference 	with his/her
immediate 	supervisor," 	at 	which the 	unit 	member could be
accompanied by a 	CSEA representative. 	The 	section did not
expressly 	require 	the 	immediate 	supervisor 	to 	agree 	to 	an
informal conference, 	however.
A Level 	I 	formal 	grievance was 	to be 	filed with the 	site
administrator. 	Section 14.4.1.3 	stated, 	"The site 	administrator,
or designee, 	or the grievant may request 	a personal 	conference."
The 	section did not 	expressly require 	anyone 	to 	agree 	to 	a
Level 	I 	conference, 	however. 	Section 14.4.1.4 	stated:
The site administrator, 	or designee, 	shall
communicate 	his/her decision to 	the grievant
in writing within five 	(5) 	days after
receiving 	the grievance.
An appeal 	to 	the 	Superintendent 	or designee 	at 	Level 	II 	was 	to be
filed within ten days of 	receipt 	of 	the Level 	I 	decision.
77

In practice, 	Level 	II 	grievances were directed to the
Assistant 	Superintendent 	of 	Personnel 	Services 	but 	were 	usually-
handled by personnel 	director Medema. 	Section 	14.4.2.2 	stated,
"A 	[Level 	II] 	conference 	shall 	be held at 	the 	request 	of 	either
the grievant, 	Superintendent, 	or designee." 	Section 14.4.2.3
stated:
The Superintendent, 	or designee, 	shall
communicate 	his/her 	decision 	to 	the 	grievant
in writing ten 	(10) 	days 	after receiving the
grievance. 	If the Superintendent, 	or
designee, 	does not 	respond within the 	time
limits provided, 	the grievant may appeal 	to
the next move.
The 	"next move" 	was binding arbitration at 	Level 	III.
The 	complaint 	in this 	case 	alleges 	that 	"[o]n or about April
16, 	1997" 	the District changed the negotiated grievance policy
"by 	refusing 	to process 	grievances 	beyond 	the 	informal 	grievance
meeting 	level." 	The 	evidence 	showed that 	sometime 	on or before
April 	16, 	1997, 	Medema told a CSEA steward she 	"had been advised
by her legal people 	that we had no contract, 	no grievance
procedure, 	and no arbitration." 	On May 23, 	1997, 	Medema
similarly 	told 	the 	CSEA chapter president 	"we 	had no 	contract 	as
far as 	the District was 	concerned, 	so we 	had no grievance
procedure 	or 	arbitration."
It 	is unclear, 	however, 	to what extent 	the District acted on
the view that 	there was no grievance procedure. 	The 	CSEA
president 	testified he 	set 	up 	on-site meetings 	on grievances,
some of 	them still 	at 	the 	informal 	level, 	only to have 	the
meetings 	cancelled and the 	matters 	referred 	to 	the 	District
8
8

office. 	The 	CSEA president 	further 	testified he 	did not 	receive
any Level 	I 	responses at all. 	The CSEA steward, 	however,
testified 	she 	received Level 	I 	responses 	from 	supervisors 	other
than one principal, 	who referred a particular matter to 	the
District 	office. 	The 	steward acknowledged 	"a 	few" 	grievances 	did
go all 	the way through Level 	II.
The 	District 	provided evidence 	of 	three 	grievances 	that
received a Level 	II 	response 	and three 	others 	that 	received 	a
Level 	I 	response. 	One of 	the grievances 	that received a Level 	II
response 	had also 	received a Level 	I 	response 	from the principal
cited by the 	CSEA steward as 	not 	responding. 	Ultimately, 	CSEA
put 	in evidence 	only one 	specific 	written grievance 	to which 	the
District 	apparently never 	responded 	at 	all.
Promotional 	Interviews
Article 	VIII 	(Promotion) 	addressed various 	issues 	concerning
promotions but 	did not address 	the 	interview process. 	In the
present 	case, 	the 	complaint 	alleges 	the District 	nonetheless 	had
the 	following policy: 	"All 	bargaining unit members 	meeting 	the
minimum qualifications 	for 	a promotional 	position were 	granted an
interview." 	The 	complaint 	further alleges 	that 	"[o]n or 	about
May 22, 	1997" 	the District 	changed this policy 	"by issuing a
memorandum which provides 	for 	the 	selective 	interviewing of 	some
bargaining unit members, 	if 	there 	are 	no bargaining unit members
in the 	top 	8 	to 	10 	applicants 	called for 	interview."
Attached to 	the 	unfair practice 	charge was 	a 	document 	dated
"5/22/97" 	that was 	alleged to be 	"a memorandum stating that 	the
99

District 	would be 	using 	a 	different 	procedure 	for 	Courtesy
Interviews 	for District 	employees." 	The 	document 	was 	not 	in
memorandum form, 	but 	it was 	headed 	"Procedures 	for Courtesy
Interviews 	for 	In District 	Employees" 	and stated what 	"would 	take
place" 	if 	there were 	"no CSEA Bargaining Unit members 	in the 	top
8-10 	applicants 	called 	for 	an 	interview." 	The 	evidence 	at
hearing, 	however, 	showed the document 	represented only a proposal
for an 	informal 	policy, 	offered by the 	District 	during
negotiations 	but 	never adopted.
There was other evidence, 	however, 	that the District
breached a policy on promotional 	interviews.4 On January 	14,
1997, 	the District posted the position of Risk Management
Technician 	II 	(RMT 	II). 	The posting listed 	"desirable
qualifications," 	some of which were minimum qualifications. 	In
what 	appeared to be 	standard 	language, 	the posting 	stated,
"Candidates 	meeting minimum 	qualifications 	will 	be 	contacted 	for
[sic] 	by phone 	for 	further testing/interview."
Three 	employees 	testified 	they 	understood 	from 	experience
the 	District's 	policy was 	to 	test 	or 	interview all 	promotional
candidates 	meeting minimum qualifications. 	The 	CSEA chapter
president 	testified that 	in 	1990 	or 	1991 	the 	then-Assistant
Superintendent 	of 	Personnel 	Services 	stated the procedure 	was 	"if
you pass 	the written test, 	you receive 	an 	interview."
4Although not 	cited in the 	complaint, 	this 	evidence was
cited 	in 	the unfair practice 	charge 	and was 	not 	dismissed.
10

Personnel 	director Medema 	testified 	the District 	had not 	had
a policy of 	interviewing all 	promotional 	candidates 	who met
minimum qualifications. 	She 	did not 	cite 	any instances, 	however,
where 	the 	District 	had not 	interviewed all 	such candidates, 	nor
did 	she 	explain 	the 	apparently 	standard 	language 	on 	the 	RMT 	II
posting. 	I 	do not 	credit 	her testimony on this point.
At 	least 	two unit members 	applied for the 	RMT 	II 	position,
believing they met 	the minimum qualifications 	on the posting, 	but
they were 	not 	called 	for an 	interview. 	Both of 	them testified
they called Medema. 	One 	testified Medema 	told her 	too many
people had applied, 	so the 	District 	scaled down 	to 	six the 	number
to be 	interviewed. 	Medema 	testified 	she 	did not 	remember this
conversation.
The 	second unit 	member 	testified 	to 	a 	similar 	conversation
with Medema, 	which Medema did not 	deny. 	According to 	this
testimony, 	Medema said 12 	out of 	13 	candidates were qualified,
which was 	too many, 	so the District 	had to 	find reasons 	to
eliminate 	some 	from the 	interview process. 	Medema did not 	tell
the unit 	member 	she was 	not 	qualified. 	The unit 	member 	followed
up the conversation with a 	letter to Medema, 	with copies 	to 	the
Board of 	Trustees. 	The 	letter generally corroborates 	the 	unit
member's 	testimony.
Medema 	testified 	that 	this 	second unit 	member did not 	in
fact 	meet 	the minimum qualifications 	for the position, 	and 	that
all 	the 	candidates 	who did were 	interviewed. 	Medema did not
explain how the unit member was unqualified, 	however. 	Moreover,
11

Medema did not 	explain how her 	testimony was 	consistent 	with 	the
conversation she 	had with the unit member. 	I 	do not 	credit
Medema's 	testimony on this point.
ISSUES
1. 	Is 	this matter 	subject 	to deferral?
2. 	Did 	the 	District 	unilaterally 	change policy on
disciplinary 	procedures?
3. 	Did the 	District 	unilaterally change 	policy on
grievances?
4. 	Did 	the 	District 	unilaterally 	change policy on
promotional 	interviews?
CONCLUSIONS 	OF 	LAW
Deferral
EERA section 3541.5(a) 	states 	in part 	PERB 	shall 	not:
Issue 	a complaint 	against 	conduct 	also
prohibited by the 	provisions 	of 	the
[collective bargaining] 	agreement between the
parties until 	the 	grievance 	machinery of 	the
agreement, 	if 	it exists and covers the matter
at issue, 	has been exhausted, 	either by
settlement 	or binding 	arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB 	held 	this 	section established a 	jurisdictional 	rule
requiring a 	charge 	be 	dismissed and deferred if 	(1) 	the 	grievance
machinery of 	the 	agreement 	covers 	the matter at 	issue 	and
culminates 	in binding arbitration and 	(2) 	the 	conduct 	complained
of 	in 	the unfair practice 	charge 	is 	prohibited by the provisions
of 	the agreement.
12

In 	Inglewood Unified School 	District 	(1991) 	PERB Order No.
Ad-222, 	PERB held the grievance machinery of 	an agreement 	does
not 	cover an 	issue 	for deferral 	purposes 	if 	the 	agreement 	does
not give 	the 	charging party standing to grieve 	that 	issue. 	In
the present 	case, 	section 14.2.14 	gave 	CSEA standing to grieve
only 	for violations 	of 	rights 	"specifically granted 	to 	the
Association 	[CSEA] 	by an express provision of 	this 	agreement."
The present 	case 	does 	not 	appear to 	involve 	any express
provisions 	specifically granting rights 	to 	CSEA. 	Deferral 	is
therefore 	inappropriate.
In State of 	California, 	Department 	of Youth Authority 	(1992)
PERB Decision No. 	962-S, 	PERB held the grievance machinery of an
agreement 	does 	not 	culminate 	in binding 	arbitration 	after 	the
expiration of the agreement, 	except 	for disputes 	that:
(1) 	involve 	facts and occurrences that arose
before expiration; 	(2) 	involve post-
expiration 	conduct 	that 	infringes 	on 	rights
accrued or vested under the 	agreement; 	or
(3) 	under normal principles of contract
interpretation, 	survive expiration of 	the
agreement.
When the present 	case arose, 	the parties' 	agreement had expired.
None of 	the 	three exceptions 	apply. 	Deferral 	is 	therefore
inappropriate 	for that 	reason as well.
Finally, 	with regard to 	the 	alleged unilateral 	change 	in
promotional 	interview policy, 	the District's 	conduct was not
arguably prohibited by the parties' 	agreement. 	That 	issue
therefore 	could not 	be deferred 	in any case.
13

Disciplinary 	Procedures
An employer's 	unilateral 	change 	in 	terms 	and conditions 	of
employment 	within the 	scope of 	representation 	is, 	absent 	a valid
defense, 	a per se 	refusal 	to negotiate 	that 	violates 	EERA section
3543.5(c). 	(Pajaro Valley Unified School District 	(1978) 	PERB
Decision No. 	51.)
To prevail 	on a 	complaint 	of unilateral 	change, 	the 	charging
party must 	establish by a preponderance 	of 	the 	evidence 	(1) 	the
employer breached or 	altered the parties' 	written agreement 	or
its own established past practice, 	(2) 	such action was 	taken
without 	giving 	the 	exclusive 	representative 	notice 	or 	an
opportunity to bargain over the change, 	(3) 	the change 	is not
merely an 	isolated breach but 	amounts 	to 	a 	change 	of 	policy 	(that
is, 	it 	has 	a generalized effect 	or continuing impact upon
bargaining unit members' 	terms 	and conditions of employment) 	and
(4) 	the 	change 	in policy concerns 	a matter within the 	scope of
representation. 	(Grant 	Joint 	Union High School 	District 	(1982)
PERB Decision No. 	196; 	Pajaro Valley Unified School District,
supra, 	PERB Decision No. 	51; 	Davis Unified School District 	(1980)
- -
PERB Decision No. 	116.)
With regard to disciplinary procedures, 	the parties'
agreement 	required 	the 	District 	to give 	an 	employee 	written
notice of 	charges prior to the 	disciplinary action, 	and 	five 	to
ten days 	prior 	to 	the 	Skellv hearing. 	The 	evidence 	showed the
District 	complied with this 	requirement 	with 	regard 	to 	the 	second
Skellv hearing, 	on May 23, 	1997. 	Although the unit member
14

apparently denied the 	fact, 	the 	evidence 	showed 	she 	received the
required notice on May-16, 	1997.
The 	District 	did not 	comply with 	this 	requirement 	with
regard to the 	first 	Skelly hearing, 	on April 	15, 	1997. 	The
evidence did not 	show, 	however, 	that 	this was more 	than an
isolated breach. 	I 	conclude 	CSEA has 	not proved a unilateral
change with 	regard 	to 	disciplinary procedures.
Grievances
After the parties' 	agreement expired, 	personnel 	director
Medema 	told 	CSEA there was 	no 	grievance 	procedure 	and no
arbitration. 	Medema was partly right 	and partly wrong. 	Under
State of California, 	Department of Youth Authority, 	supra, 	PERB
Decision No. 	962-S, 	an arbitration clause generally does not
continue 	in effect 	after an agreement 	has 	expired. 	This 	does
not, 	however, 	disturb PERB's 	longstanding holding that 	the 	rest
of 	the grievance procedure 	does 	survive 	expiration of 	the
agreement, 	absent 	clear evidence of 	an 	intent 	to the 	contrary.
(Anaheim City School District 	(1983) 	PERB Decision No. 	364.)
CSEA did not prove, 	however, 	that Medema's partly erroneous
view of 	the 	law was 	linked to 	an actual 	change 	in 	the 	negotiated
grievance policy. 	The 	evidence 	did not 	show the 	District 	changed
policy by generally 	"refusing 	to process 	grievances 	beyond 	the
informal 	grievance meeting level," 	as 	the 	complaint 	alleged; 	the
CSEA steward acknowledged 	"a 	few" 	grievances 	did go 	all 	the way
through Level 	II. 	The 	CSEA president 	testified 	some 	on-site
grievance meetings were 	cancelled, 	but 	it 	does not 	appear the
15

parties' 	agreement 	actually required 	such meetings 	to be 	held
before Level 	II. 	CSEA put 	in evidence 	one 	specific written
grievance 	to which 	the 	District 	apparently never 	responded 	at
all, 	but 	the 	evidence 	did not 	show this was more 	than an 	isolated
breach. 	I 	conclude 	CSEA has not proved a unilateral 	change with
regard to grievances.
Promotional 	Interviews
With regard to promotional 	interviews, 	CSEA did not 	prove
the 	specific 	allegation in the 	complaint, 	that 	the District
changed policy by 	issuing a memorandum on or about 	May 22, 	1997.
As discussed 	in the 	statement 	of 	facts, 	the May 22 	"memorandum"
turned out 	to be only an unadopted proposal. 	There was 	other
evidence, 	however, 	that 	the District breached a policy on
promotional 	interviews 	in connection with 	the RMT 	II 	interviews
in early 1997.
An unalleged violation 	can be 	considered only 	if 	it 	is
intimately related to the 	subject matter of 	the 	complaint, 	is
part 	of 	the 	same 	course of 	conduct, 	and has been fully litigated,
and 	if 	the parties 	have 	had the 	opportunity to 	examine 	and be
cross-examined on the 	issue. 	(Hacienda La 	Puente Unified School
District 	(1997) 	PERB Decision No. 	1187, 	citing Santa Clara
Unified School District 	(1979) 	PERB Decision No. 	104.) 	All of
these 	conditions 	are met 	in the present 	case. 	The violation with
regard to 	the 	RMT 	II 	interviews was 	alleged 	in CSEA's 	original
unfair practice 	charge 	and was 	not 	dismissed. 	It 	was 	alleged as
part 	of 	the 	same policy change 	in the 	same 	general 	time period
16

(early 1997) 	as 	the May 22 	"memorandum" 	referenced in the
complaint. 	Three 	of 	CSEA's witnesses were examined and cross-
examined on 	the 	subject, 	and the 	District's 	only witness
(personnel 	director Medema) 	was 	also 	examined and cross-examined
on the 	subject. 	The matter was 	fully litigated; 	I 	shall
therefore 	consider 	it.
For the 	reasons 	stated in the 	findings of 	fact, 	I 	conclude
the 	District 	had a policy of 	interviewing 	all 	promotional
candidates who met 	minimum qualifications, 	and the 	District
breached that policy with regard to the RMT 	II 	interviews. 	I
further conclude 	this was more 	than an 	isolated breach. 	More
than one 	unit member was 	directly affected: 	based on what 	Medema
told the 	two unit members who called her, 	12 	candidates were
qualified, 	but 	only 6 were 	interviewed. 	Furthermore, 	by denying
the very existence 	of 	the policy, 	Medema 	in effect 	asserted the
District's 	right 	to breach the policy 	in the 	future with respect
to other unit members. 	(See 	Trustees 	of 	the 	California 	State
University 	(1997) 	PERB Decision No. 	1243-H, 	explaining Hacienda
La Puente Unified School District 	(1997) 	PERB Decision No. 	1186.)
The 	District 	did not 	plead and does 	not 	argue 	CSEA waived
its 	right 	to negotiate the 	change 	in policy. 	Waiver 	is 	an
affirmative 	defense 	that 	is 	itself 	waived 	if 	not 	raised by the
respondent. 	(Morgan Hill 	Unified School 	District 	(1985) 	PERB
Decision No. 554. )5
5I 	also note 	that 	in Article XXI 	of 	the 	1994-1996 	agreement,
the 	parties 	waived a 	right 	to 	negotiate 	only 	"during 	the 	term of
this agreement," 	which ended December 31, 	1996. 	Furthermore,
17

although Article 	XVII 	of 	the 	agreement 	generally 	reserved
District 	rights 	as 	to 	the 	"promotion 	. . . 	of 	all 	personnel 	of
the District," 	there was no 	specific 	language 	in the 	agreement
covering 	interview procedures. 	(Cf. 	Solano 	County Community
College District 	(1982) 	PERB Decision No. 	219.) 	A waiver must be
established by 	clear 	and unmistakable 	language. 	(Ibid.)
For the 	foregoing reasons, 	I 	conclude 	CSEA has proved a
unilateral 	change 	in promotional 	interview policy, 	and the
District 	has 	not proved any defense. 	The 	District's 	conduct
violated 	its 	duty to bargain 	in good 	faith with CSEA, 	in
violation of EERA section 3543.5(c). 	This conduct 	also denied
CSEA its 	right 	to represent unit members, 	in violation of 	EERA
section 3543.5(b). 	This 	conduct 	also 	interfered with the 	right
of unit members 	to be 	represented by CSEA, 	in violation of 	EERA
section 3543.5(a).
REMEDY
EERA section 3541.5 (c) 	gives PERB:
. 	. 	. 	the power to issue a decision and order
directing 	an offending party to 	cease 	and
desist 	from the 	unfair practice 	and to 	take
such affirmative 	action, 	including but 	not
limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of this chapter 	[EERA].
In the present 	case, 	the District 	has been found to have violated
EERA section 3543.5(a), 	(b) 	and 	(c) 	by unilaterally changing a
policy on promotional 	interviews. 	It 	is 	therefore appropriate 	to
direct 	the District 	to cease 	and desist 	from such conduct. 	It 	is
also 	appropriate 	to 	direct 	the 	District 	to meet 	and negotiate
about promotional 	interview policies, 	if 	CSEA so requests.
18

In California State Employees' 	Association v. 	Public
Employment Relations Bd. 	(1996) 	51 Cal.App.4th 923, 	946
[59 	Cal.Rptr.2d 488], 	the court 	stated in part:
Restoration of 	the 	status quo 	is 	the
normal 	remedy for a unilateral 	change 	in
working 	conditions 	or 	terms 	of 	employment
without 	permitting bargaining members'
exclusive 	representative 	an 	opportunity 	to
meet 	and 	confer over 	the 	decision 	and 	its
effects. 	(See, 	e.g., 	Oakland Unified School
Dist. 	v. 	Public Employment Relations Bd.
(1981) 	120 Cal.App.3d 1007, 	1014-1015 	[175
Cal.Rptr. 	105].) 	This is usually
accomplished by 	requiring 	the 	employer 	to
rescind 	the 	unilateral 	change 	and 	to make
employees 	"whole" 	from losses 	suffered as 	a
result 	of 	the unlawful unilateral 	change.
It 	is 	therefore 	appropriate 	to direct 	the 	District 	to 	rescind the
unilateral 	change 	and restore 	the previous policy, 	if 	CSEA so
requests.
In 	its unfair practice 	charge, 	CSEA requested the District
be 	ordered 	to 	"[i]nterview all 	employees 	that 	had 	the 	minimum
qualifications 	for 	the 	Risk Management 	Technician position with
the 	practice 	of 	an 	appointed CSEA party on 	interview committee."
There 	is no apparent point, 	however, 	in ordering the District 	to
interview employees 	now 	for a position that 	(presumably) 	has 	been
filled for over a year. 	There 	is 	also no apparent basis 	for
ordering 	the 	District 	to place 	a CSEA representative 	on an
interview 	committee.
It 	is 	appropriate 	the 	District 	be 	directed to post 	a notice
incorporating the 	terms 	of 	the 	order 	in this 	case. 	Posting of
such a notice, 	signed by an authorized agent 	of 	the District,
will 	provide 	employees with notice 	the District 	has 	acted 	in 	an
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unlawful 	manner, 	is 	being required to 	cease 	and desist 	from this
activity and to 	take 	affirmative 	remedial 	actions, 	and will
comply with the order. 	It 	effectuates 	the purposes 	of EERA that
employees 	be 	informed both of 	the 	resolution of 	this 	controversy
and of 	the 	District's 	readiness 	to 	comply with 	the 	ordered
remedy. 	(Placerville Union School 	District 	(1978) 	PERB Decision
No. 	69.)
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law, 	and upon the entire record in this matter, 	it 	is 	found the
Antelope 	Valley Union High School 	District 	(District) 	violated
the 	Educational 	Employment Relations Act 	(EERA or Act),
Government Code section 3543.5(a), 	(b) 	and 	(c), 	by unilaterally
changing 	a policy on promotional 	interviews.
Pursuant 	to EERA section 3541.5 (c), 	it 	is hereby ORDERED
that 	the 	District, 	its 	governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing promotional 	interview
policies.
2. 	By the 	same 	conduct, 	denying CSEA its rights.
3. 	By the 	same 	conduct, 	interfering with the 	rights
of 	employees 	to be 	represented by 	CSEA.
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B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
1. 	If 	requested by CSEA within 	10 	days 	of 	this
proposed decision becoming 	final, 	meet 	and negotiate 	in good
faith with 	CSEA concerning promotional 	interview policies.
2. 	If 	requested by CSEA, 	reinstate 	the prior policy
of granting promotional 	interviews 	to 	all 	unit 	members who meet
minimum 	qualifications.
3. 	Within ten 	(10) 	workdays of 	the 	service of a 	final
decision 	in this matter, 	post 	at 	all work locations where notices
to 	classified employees 	customarily are posted, 	copies 	of 	the
Notice 	attached hereto as 	an Appendix. 	The Notice must 	be 	signed
by an authorized agent 	of 	the 	District, 	indicating 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 ensure 	the Notice 	is 	not
reduced in size, 	altered, 	defaced or covered with any other
material.
4. 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with the Order 	to 	the
San 	Francisco 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board, 	in accord with the 	regional 	director's
instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
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20 	days 	of 	service of 	this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 00.) 	A document is considered "filed" when
actually received before 	the 	close 	of business 	(5 	p.m.) 	on the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	32135; Code of Civ. 	Pro. 	sec. 	1013 shall
apply.) 	Any statement 	of 	exceptions 	and 	supporting brief 	must 	be
served concurrently with 	its 	filing upon 	each party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany each 	copy 	served on
a party or 	filed with the Board 	itself. 	(See Cal. 	Code 	of Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
THOMAS J. 	ALLEN
Administrative 	Law 	Judge
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