Imperial Unified School District (PERB A189E)

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
Administrative
	Appeal
PERB
	Order
	No.
	Ad-189
July
	12,
	1989
)
)
)
)
)
)
)
)
Appearances:	
Littler,
	Mendelson,
	Fastiff	
&	
Tichy,
	by
	Richard
	J.
Currier
	and
	C. 	Anne
	Hudson,
	Attorneys, 	for 	Imperial 	Unified
School
	District.
Before
	Porter,
	Craib
	and
	Camilli,
	Members.
DECISION
CAMILLI, 	Member:
	This
	matter
	is
	before 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	pursuant 	to
	an
	appeal
filed
	by
	the 	Imperial 	Unified
	School
	District 	(District).
	On
April
	6, 	1989,
	a 	PERB
	administrative
	law
	judge
	(ALJ)
	denied
	the
District's
	motion
	to
	dismiss 	the
	complaint.
PROCEDURAL
	BACKGROUND
The
	Imperial 	Teachers
	Association,
	CTA/NEA
	(Association)
filed
	an
	unfair 	practice
	charge
	against 	the
	District 	alleging
that 	in 	the
	1988-89
	school 	year 	the
	District 	unilaterally
increased 	the
	number
	of
	instructional
	minutes
	at
	Frank 	Wright

Intermediate
	School
	in
	violation
	of
	sections
	3543.S(a),
	(b)
	and
(c)
	of
	the
	Educational
	Employment
	Relations
	Act
	(EERA) . 1
The
	District
	requested
	that
	the
	charge
	be
	dismissed
	because
the 	dispute
	was
	covered
	by
	provisions
	of
	the
	contract,
	and
therefore
	must
	be
	deferred
	to
	binding
	arbitration
	pursuant
	to
EERA
	section
	3541.5(a)(2)
. 2
The
	regional 	attorney 	refused
	to
dismiss 	the
	charge,
	and
	a
	complaint
	was
	issued
	alleging
	a
violation
	of
	EERA
	section
	3543.S(c),
	and
	derivatively, 	section
3543.S(b).
1EERA
	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,
	in 	pertinent 	part:
It
	shall
	be
	unlawful
	for
	a
	public
	school
employer
	to:
(a)
	Impose
	or 	threaten 	to
	impose
	reprisals
on
	employees,
	to 	discriminate 	or 	threaten 	to
discriminate 	against
	employees,
	or 	otherwise
to
	interfere
	with,
	restrain,
	or 	coerce
employees
	because 	of
	their
	exercise 	of
	rights
guaranteed
	by
	this
	chapter.
(b)
	Deny
	to
	employee
	organizations
	rights
guaranteed
	to
	them 	by
	this
	chapter.
(c) 	Refuse
	or
	fail
	to
	meet 	and
	negotiate 	in
good
	faith
	with
	an
	exclusive 	representative.
2
Section 	3541.5(a)(2)
	states, 	in 	pertinent 	part, 	that
	PERB:
Shall
	not.
	issue
	a
	complaint
	against
conduct
	also 	prohibited
	by
	the 	provisions 	of
the
	.
	[collective 	bargaining 	agreement
	in
effect}
	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. 
2

The
	District 	thereafter 	filed
	a
	Motion
	to
	Dismiss
	Complaint,
based
	on
	the
	deferral
	claim.
	The
	motion
	was
	denied
	by
	the
	ALJ.
The
	hearing
	on
	the 	merits 	of
	the
	complaint
	was
	scheduled
	for
June
	15,
	1989;
	however,
	the
	Board
	issued
	a
	stay
	pending
	this
appeal.
	(See
	Imperial 	Unified
	School
	District
	(1989)
	PERB
	Order
No.
	Ad-185.)
The
	Board
	affirms 	the
	ALJ's
	ruling
	denying
	the
	motion
	to
dismiss
	in
	accordance
	with
	the 	discussion
	below.
DISCUSSION
The
	District's
	main
	contention
	is 	that
	the
	Board
	agent
should
	have
	deferred
	this
	case
	to
	binding
	arbitration
	under
	Lake
Elsinore
	School
	District
	(1987)
	PERB
	Decision
	No.
	646.
In
	Lake
	Elsinore, 	the
	Board
	held
	that
	section
	3541.S(a)
(2)
established
	a
	jurisdictional 	rule 	requiring
	that
	a
	charge 	be
dismissed
	and
	deferred
	if:
	(1)
	the
	conduct 	complained
	of
	in
	the
unfair 	practice
	charge
	is
	prohibited
	by
	the 	provisions
	of
	the
agreement 	between
	the
	parties;
	and 	(2)
	the 	grievance 	machinery 	of
the
	agreement 	covers
	the 	matter
	at
	issue
	and
	culminates
	in
binding
	arbitration.
In 	the 	instant
	case, 	the
	District
	claims
	that 	deferral
	is
mandatory 	because 	an
	increase 	in 	instructional
	minutes
	at
	Frank
Wright
	Intermediate
	School
	was
	arguably 	permitted
	by
	provisions
found
	in 	the
	1987-89 	Master 	Contract 	(Contract) 	between
	the
District
	and
	the 	Association. 	Article
	XII
	of 	the 	Contract 	which
defines
	"workday"
	states, 	in 	pertinent 	part:
The
	Imperial 	Unified 	School
	District
	has
established 	the
	workday
	for 	teachers 	as 	being
3

seven
	hours
	and
	twenty 	minutes
	after
	the
beginning 	time.
	It
	is
	understood
	that
	the
normal
	starting
	time
	(except
	at
	WestsideSchool)
	is 	at
	8:00
	a.m.,
	except
	under
	unusual
circumstances.
Article
	II
	of
	the 	Contract,
	entitled
	"Distric~ 	Rights," 	provides
that
	the
	District
	retains
	all
	rights
	to
	efficiently
	manage
	the
District
	"except 	as
	limited
	by
	this
	Agreement."
Both
	the
	ALJ
	and
	the 	regional 	attorney
	determined
	that 	the
subject
	of
	instructional
	time
	is
	not
	covered
	by
	the 	Contract,
	and
that
	the
	District's
	unilateral
	increase 	in
	the
	instructional
minutes
	of 	teachers
	is
	therefore
	not
	arguably
	prohibited
	by
	the
two
	provisions
	taken
	together,
	or
	viewed
	separately.
	As
	section
3541.5(a)(2)
	requires 	deferral
	only
	where
	the
	conduct 	complained
of
	in
	the
	charge
	is
	arguably
	prohibited
	by
	the
	parties'
agreement, 	both
	the 	regional 	attorney
	and
	the
	ALJ
	concluded
	that
deferral
	would
	not
	be
	proper
	in
	this
	case.
We
	agree.
	The
	parties'
	Contract
	does
	not
	contain
	a
provision 	regarding
	instructional
	minutes;
	however,
	the
	District
would 	have
	the
	Board
	read
	Articles
	XII
	and
	II
	as 	arguably
incorporating 	the 	subject
	of
	instructional
	minutes.
	We
	decline
to 	take
	that
	view.
	As
	the
	ALJ
	correctly
	pointed 	out, 	the
	Board
has 	held 	in
	previous 	decisions
	that 	instructional
	time
	is
	a
	term
and
	condition 	of
	employment
	separate
	from
	the 	length 	of 	the
workday. 	(San 	Mateo
	City
	School
	District
	(1980)
	PERB
	Decision
No.
	129;
	Sutter
	Union 	High 	School
	District
	(1981)
	PERB
	Decision
No.
	175.) 	Consequently,
	we
	find 	that 	neither 	Article
	XII
	nor
Article 	II
	concern 	the 	subject 	of 	instructional 	minutes 	and,
4

therefore,
	the
	provisions
	do
	not 	arguably
	prohibit
	the
	conduct
	at
issue 	in
	this
	matter.
The
	District
	also 	alleges
	that
	both
	the
	ALJ
	and
	the
	regional
attorney 	incorrectly
	applied
	a
	waiver
	test.
	The
	District
	argues
that
	it
	is
	not
	its
	contention
	that
	the 	Association
	clearly
	and
unmistakably
	waived
	its
	right
	to
	bargain
	instructional
	minutes.
Instead,
	the
	District
	argues
	that
	it
	was
	not
	required 	to
	prove
	a
clear
	and
	unmistakable 	waiver
	by
	express
	contract
	language,
	or
that
	the
	pertinent
	contract 	provisions
	"clearly
	and
	unmistakably
cover
	the 	matter
	in
	dispute."
	The
	District 	cited
	Conejo
	Valley
Unified
	School
	District
	(1984)
	PERB
	Decision
	No.
	376
	and
	Roy
Robinson
	Chevrolet
	(1977)
	228
	NLRB
	103
	[94
	LRRM
	1474]
	for
	the
proposition
	that 	neither
	PERB
	nor
	the
	National
	Labor
	Relations
Board
	require
	express
	contract
	language
	in 	order 	to
	hold
	that
deferral 	is
	required.
	However,
	the 	facts 	in 	the 	present 	case 	are
quite 	different.
	Here,
	the
	agreement
	lacks
	a
	provision
	that
	even
mentions
	instructional
	time.
	The
	District
	attempts 	to
	show
	that
the 	Article
	XII 	"workday"
	provision 	implies
	instructional
	time 	as
well.
	However,
	as
	we
	noted
	earlier,
	the
	Board
	has
	previously
ruled 	that 	instructional
	time
	is
	a
	bargaining 	subject
	that
	is
separate
	from 	workday
	time. 	Accordingly,
	we
	conclude
	that 	the
unilateral
	increase 	of
	instructional
	time
	is
	not 	arguably
prohibited
	by
	the 	Contract
	and
	that
	the 	underlying 	charge
	is
therefore 	not 	subject 	to
	mandatory
	deferral.
5

ORDER
The
	Board
	hereby
	DISSOLVES
	the 	order 	of
	a
	stay
	(PERB
	Order
No.
	Ad-185),
	DENIES
	the
	appeal
	of 	the
	ALJ
	dismissal,
	and
	ORDERS
the
	ALJ
	to
	schedule
	a
	hearing
	on
	the 	merits 	of
	the
	complaint
	in
Case
	No.
	LA-CE-2795.
Members
	Porter
	and
	Craib
	joined
	in
	this
	Decision.
6