Chico Unified School District (PERB 0286E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION
AND 	ITS 	CHICO 	CHAPTER 	#110,
Charging 	Party,
v.
CHICO 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case 	No. 	S-CE-404
PERB Decision No. 	286
February 22, 	1983
Appearances; 	Siona D. 	Windsor, 	Attorney 	for 	California School
Employees 	Association 	and 	its 	Chico 	Chapter 	#110;
Richard J. 	Currier, 	Attorney 	(Littler, Mendelson, 	Fastiff 	&
Tichy) 	for 	Chico Unified School District.
Before Tovar, 	Jaeger 	and Morgenstern, Members.*
DECISION
MORGENSTERN, 	Member: 	This case 	is before 	the Public
Employment 	Relations Board 	(PERB or 	Board) 	on exceptions 	filed
by 	Chico Unified 	School 	District 	(District) 	to 	the 	hearing
officer's 	proposed 	decision 	finding 	that 	the 	District 	had 	made
unilateral 	changes 	in 	leave policy 	in violation of 	the
collective 	bargaining 	agreement 	without 	negotiating 	in 	good
faith 	in violation of 	subsections 3543.5(a), 	(b) 	and 	(c) 	of 	the
Educational Employment 	Relations Act 	(EERA).1 Based on our
*Chairperson Gluck 	did 	not participate 	in 	the 	determination
of 	this matter.
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
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review of 	the 	entire 	record 	in 	this case 	in 	light of 	the
District's 	exceptions, 	we 	reverse 	the 	hearing officer's
conclusion 	as 	to 	this matter.
et seq. 	All references 	are 	to 	the Government Code, 	unless
specified 	otherwise.
Subsections 3543.5 (a), 	(b) 	and 	(c) 	provide as follows:
It 	shall be unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail to meet 	and 	negotiate 	in
good 	faith with 	an 	exclusive 	representative.
No 	exceptions 	were 	filed 	to 	the 	hearing 	officer's 	dismissal
of alleged violations 	of 	subsections 	3543.5(a) 	and 	(b) 	charged
California 	School 	Employees 	Association 	and 	its 	Chico
Chapter 	#110 	(CSEA or Association). 	Those matters 	not excepted
to are 	not before 	us.
STATEMENT 	OF 	FACTS
The Association 	is 	the 	exclusive 	representative of
classified 	employees 	of 	the 	District. 	The 	parties 	negotiated
their 	first 	agreement 	in 1977 	and, 	in September 	1979, 	entered
into a successor 	agreement 	effective 	through June 	30, 	1982.
Pursuant 	to a 	reopener 	clause 	in 	the 	second 	negotiated
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agreement, 	the parties 	began negotiations 	in May 1980. 	The
parties 	were 	unable 	to reach 	agreement 	and, 	in September 	1980,
impasse 	was 	declared 	and 	a mediator 	appointed. 	At 	a mediation
session conducted on October 	2, 	1980, 	CSEA felt 	that, 	under
direction 	from 	the District's 	attorney, 	the District's
bargaining 	team 	reneged 	on 	a 	tentative 	agreement. 	When 	the
disgruntled CSEA 	team left 	the mediation 	session, 	it 	appeared
at 	the 	District's 	administrative 	office 	and 	joined 	a
CSEA-authorized 	informational 	picket 	line.
Rumors 	of 	a potential 	sick-out 	began 	surfacing 	Thursday 	at
the 	informational picket 	line 	and 	Friday 	afternoon, 	October 	3,
1980. 	Eileen Robinson, 	chairperson of 	the CSEA bargaining
team, 	advised 	the 	members 	that CSEA did 	not 	sanction 	and 	would
not participate 	in a sick-out. 	She 	did 	say 	that 	she would
request 	executive 	board 	sanction 	for 	an 	informational 	picket
line on Tuesday, 	October 	7, 	1980. 	CSEA Field Representative
Neil McAfee confirmed, 	when asked by Ms. 	Robinson, 	that a
sick-out 	had 	not 	been 	authorized 	by CSEA.
Dr. 	Don Cloud, 	the 	associate 	superintendent 	(acting 	as
superintendent at 	the 	time), 	was 	advised of a possible sick-out
on Friday 	afternoon by Yolanda Crane, 	a 	food 	services
supervisor. 	Ms. 	Crane 	told Dr. 	Cloud 	that 	she had 	heard 	a
sick-out was planned 	for Monday, 	October 	6, 	1980. 	The District
had 	never 	experienced 	or 	prepared 	for 	a 	sick-out 	prior 	to
October 	of 	1980.
w
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In light 	of 	the 	rumors, 	the District 	administrators met on
Friday 	and 	started 	what 	would 	become 	a 	three-step plan 	to 	deal
with 	the 	rumored 	sick-out. 	First, 	they prepared a phone
questionnaire 	which 	they 	used 	Saturday 	and 	Sunday 	to poll
bargaining 	unit 	members 	to 	determine 	whether 	a 	sick-out 	was
planned 	and 	how 	extensive 	it would 	be, 	and 	to warn people 	that
they 	could 	be 	docked 	their 	salary 	for 	the 	day.
By 	the 	phone poll, 	they 	found 	that 	there 	indeed 	was 	talk 	of
a 	sick-out, 	and 	they could 	expect 	that 	some 	people 	would 	not 	be
coming 	to work on Monday, 	October 	6.
With 	regard 	to 	the 	employees' 	attendance 	on Monday,
October 	6, 	the parties 	stipulated 	as 	follows:
The 	parties 	hereby 	stipulate 	that 	in 	the
bargaining 	unit 	represented 	by 	the 	CSEA
there 	was 	an 	exceptionally 	high 	absence 	rate
on Monday, 	October 	6, 	1980; 	and 	that 	this
absence 	rate 	can 	in 	no way 	be 	considered
normal. 	The parties 	also hereby 	stipulate
that prior 	to and 	after 	October 	6, 	1980,
there 	has 	not 	been 	near 	as 	high 	an 	absence
rate 	on 	the 	bargaining 	unit 	represented 	by
CSEA as 	there was on October 	6, 	1980.
The 	District 	then prepared 	a 	second 	phone 	questionnaire 	to
be 	used 	on Monday 	to call 	the 	88 people who did 	not 	come 	to
work. 	In 	this conversation, 	the 	employees 	were 	asked why 	they
were 	not 	at 	work 	and 	what 	form 	of 	verification 	they 	would
submit 	to 	the District 	to 	substantiate 	the 	taking 	of 	a leave.
The 	third 	step 	was 	a 	directive 	to 	the 	supervisors 	entitled
"Procedures 	to Use 	to Verify Employees' Absence 	on Monday,
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October 	6, 	1980." 	The procedures 	required 	employees 	to sign 	an
absence 	report 	form 	and 	present 	verified 	evidence 	(doctor's
statement 	or 	vacation 	verification) 	justifying 	the 	absence.
Principals 	and 	supervisors 	were 	instructed 	to 	sign 	the 	absence
report 	form only 	after 	informing 	the 	employee 	that 	unauthorized
leave 	would 	result 	in a day's 	loss 	of pay 	and 	possible written
reprimand, 	whereas 	false 	reporting 	would 	result 	in 	stiff
discipline 	which 	could 	include 	dismissal. 	Administrators 	were
told 	that 	employees 	who 	insisted 	that 	their 	absences 	were
justified 	but 	who 	lacked 	verification 	should 	be 	directed 	to
fill 	out 	an 	affidavit 	before 	a 	notary public 	provided 	by 	the
District 	at 	the 	District office. 	Refusal 	to comply with 	these
procedures 	was 	to 	result 	in 	loss 	of 	pay 	and 	possibly a 	charge
of 	insubordination. 	Employees 	who 	did 	not 	verify 	their 	absence
pursuant 	to 	the 	District's procedures 	were 	not 	paid.2 NO
other 	disciplinary 	action 	was 	taken.
Spring Toms-Oakes, 	the CSEA chapter 	president, 	was 	required
to 	sign 	an 	affidavit 	to 	verify 	her 	personal 	necessity leave.
Positions 	of 	the 	Parties
CSEA 	alleges 	that 	requiring 	verification 	by 	either 	a
doctor's 	letter 	or 	an 	affidavit 	was 	a 	unilateral 	change 	in 	the
collective 	bargaining 	agreement, 	specifically 	section 	4.2.6 	of
2Twenty-nine 	employees 	were 	paid 	for 	the 	day 	and
fifty-nine 	were 	not.
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the 	leave 	and 	transfer 	section.3 The 	Association 	based 	its
assertion 	of 	a 	unilateral 	change 	on 	the 	past 	practice 	of 	the
District 	and 	the 	intent of 	the 	parties 	as 	found 	in 	the 	history
of 	bargaining. 	Eileen Robinson, 	who had 	participated 	in both
the 	1977 	and 	1979 	negotiations, 	testified 	to 	the 	intent of 	the
parties 	regarding 	section 	4.2.6, 	as 	follows:
1. 	The Merit System Rules 	(MSR) 	would apply
to 	the 	sick 	leave 	clause, 	and 	1007(j)4
of 	the MSR required 	verification of
illness 	by production of 	a doctor's 	note
only 	after 	five 	days 	of 	illness.
2. 	Prior 	to the 	five days, 	the 	"reasonable
form of 	proof" 	that 	the District could
require 	would 	be 	the 	absence 	report 	form
negotiated 	at 	the 	table 	for 	that purpose.
The past practice of 	the District, 	admitted 	by Dr. 	Cloud,
has 	been 	to 	require 	verification of 	illness 	or 	injury 	by a
letter 	from 	the 	doctor 	only after 	five 	days 	as 	is 	required
under 	the 	merit 	system 	rules.
3Section 	4.2.6 	provides, 	in pertinent part:
An 	employee 	shall, 	when 	reasonably 	required
by 	the District, 	give 	adequate proof of
illness 	or 	injury 	in 	the 	form of 	a 	letter
from his or 	her 	physician or 	such 	other
reasonable 	form of 	proof 	as may 	be 	required.
4Section 	1007(j) 	of 	the merit 	system rules provides:
An 	employee 	absent 	for 	five 	working 	days 	or
more 	may 	be 	required 	to 	present 	a doctor's
statement 	stating 	the 	nature 	of 	the 	illness
or 	injury and 	the 	date 	the 	employee 	is 	able
to 	return 	to work.
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The District's 	position 	is 	that 	it 	followed 	the merit
system rules 	in routine 	situations, 	but past practice 	in such
routine 	situations 	in 	no way 	limits 	or 	changes 	their
contractually negotiated 	rights 	in 	the 	event 	of 	a 	sick-out.
Dr. 	Cloud 	testified 	that 	in 1977, 	the administrators, 	who
were 	negotiating 	with 	both 	the 	certificated 	and 	classified
employees, 	were 	determined 	to provide language 	in 	the 	leave
clause 	which 	allowed 	greater 	flexibility 	than 	the 	MSR language
in order 	to protect 	the District 	in 	the event of a sick-out or
any 	other 	occasion 	where 	it 	had 	good 	reason 	to 	suspect 	an 	abuse
of 	sick 	leave. 	They 	wanted 	language 	which 	deleted 	the 	five-day
requirement, 	and 	they got 	it.
The parties 	differ 	as 	to 	the 	proper 	interpretation of
section 	1.4.25 of 	the 	contract 	which 	sets 	the 	contract 	above
the MSR where 	there 	is 	an 	inconsistency 	between 	the 	two.
5Section 	1.4.2 	provides:
Except 	to 	the 	extent 	that 	the Merit 	System
(Personnel Commission) 	Rules 	are
inconsistent 	with 	the 	terms 	of 	this
contract, 	or 	concern 	subjects within said
scope 	of 	representation, 	the Merit 	System
Rules 	and Regulations 	shall 	remain 	in 	full
force 	and effect, 	subject 	to change 	in
accordance 	with 	such 	rules 	and 	regulations
and 	California 	law.
Exceptions 	to 	the 	foregoing 	which 	the
parties 	believe 	are 	required 	because 	of
possible 	interpretations 	of 	the meaning
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of 	scope of representation, 	are 	as
follows:
A. 	The Merit System Rules 	concern
procedural matters 	relating 	to
entitlement 	to employee 	rights, 	which
rights 	are 	governed 	by 	this contract.
B. 	Merit 	system matters, 	including 	but
not 	limited 	to classification,
reclassification, 	placement on salary
schedule, disciplinary appeals,
certification 	and 	layoff 	shall 	be
governed 	by 	the Merit 	System Rules.
Ms. 	Robinson claims 	the 	intent of 	the parties was 	to have
no 	inconsistency, 	that 	the 	"reasonably required" 	and
"reasonable 	form of 	proof" 	language 	in 	section 	4.2.6 	was 	an
implementation 	of 	section 	1007(j) 	of 	the MSR concerning
absences 	of 	more 	than 	five 	days. 	Dr. 	Cloud contends 	that 	the
language 	of 	section 	4.2.6 	is 	inconsistent 	with 	the MSR and 	must
be given 	significance 	according 	to 	the meaning 	on 	its 	face, 	and
that 	its 	more 	open 	and 	flexible 	language 	must 	control 	in 	this
sick-out 	situation. 	The parties agree 	that, 	when 	there 	is 	an
actual conflict 	between 	the 	MSR language 	and 	the 	contract
language, 	the contract prevails.
The District's position 	is 	that, 	in 	the 	immediate
situation, 	it 	had a 	reasonable 	suspicion 	that 	there would 	be 	a
sick-out. 	The 	suspicion was 	confirmed 	by 	the 	telephone
polling. 	According 	to 	the District, 	it 	had 	the 	right 	under 	the
contract 	to 	require 	adequate 	proof 	of 	illness. 	A doctor's
report would 	be adequate but, 	in the alternative, 	a 	sworn
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affidavit would 	be 	a 	reasonable 	requirement 	in 	addition 	to 	the
normal absence 	report 	form.
The 	District 	bolsters 	its 	position 	by pointing 	to 	section
4.17 	of 	the 	contract 	which 	provides:
No 	leave 	may 	be 	taken 	under 	this 	article 	for
reasons 	of 	participation 	in 	employee
organization 	activities 	of 	a 	concerted
nature 	such 	as 	work 	stoppages 	or 	the 	like.
Ms. 	Robinson 	admitted 	that 	this was 	added 	and 	applied 	to
the whole leave 	section, 	not just personal necessity 	leave, 	but
claims 	that 	it 	referred 	only 	to 	concerted 	activity 	sanctioned
by CSEA. 	The District 	responds 	that 	it was 	intended 	to apply
to concerted 	activities, 	whether 	or 	not 	sanctioned 	or 	sponsored
by 	an 	employee 	organization.
The District's position, 	then, 	is 	that 	it has 	two
contractual clauses 	which 	protect 	it 	in 	the 	event 	of 	an 	abuse
of 	leave, 	and 	that 	the 	inconsistency 	with 	the MSR only points
up 	the 	increased 	flexibility 	that 	it 	has 	negotiated 	for 	itself
in 	the contract. 	As 	long 	as 	that 	flexibility 	is 	exercised
reasonably 	and 	non-discriminatorily, 	it 	has 	the power 	under 	the
contract 	to assert 	the 	requirements 	that 	it 	did 	set 	for 	the
October 	6 	sick-out 	participants.
The 	District 	similarly asserts 	that 	it 	was 	acting 	within
the 	contract 	language 	when 	it 	required 	additional 	personal
necessity 	verification 	from 	Spring 	Toms-Oakes. 	Given 	the
certification 	requirements 	of 	the 	personal 	necessity 	leave
9
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section,6 the District contends that an affidavit verifying
the absence report form provides proof of personal necessity
without requiring disclosure of the actual reason for 	the leave,
DISCUSSION
Sick 	Leave 	V e r i f i c a t i o n
Consistent 	with 	subsection 	3541.5(b) 	of 	EERA,7 PERB 	has
authority to analyze and 	interpret contractual provisions to
6Personal 	Necessity 	Leave
4.5.4 	An 	employee 	shall 	be 	allowed 	to 	use
three 	(3) 	days leave 	under 	this
section 	for 	any 	other 	reason 	except
vacation, 	recreation or 	business
pursuits. 	The District 	shall 	not
require 	the 	employee 	to 	specify 	the
reason 	for 	the 	leave, 	but 	shall
require 	the 	employee 	to 	certify 	that
"the 	leave 	meets 	the 	qualifications of
this 	section 	4.5 	concerning 	family
need. 	(Emphasis 	added.)
4.5.5 	. . . 	Excluding 	subsection 	4.5.4,
such 	employee 	shall 	supply 	to 	the
District proof 	of 	personal necessity
for 	the 	purpose 	of 	this 	section 	4.5
in 	the 	form of a declaration, 	under
penalty 	of perjury, 	stating 	the
reasons 	for 	such 	personal leave.
Advance 	notice 	shall 	not 	be 	required
for 	personal necessity 	leave, 	but
reasonable 	notice 	shall be provided
to 	the District by 	the 	employee.
4.5.7 	The 	burden 	of 	proof 	of 	reason 	for
this 	leave 	shall 	be 	on 	the 	employee
in disputed cases.
7Subsection 	3541.5 (b) 	provides:
(b) 	The 	board 	shall 	not 	have 	authority 	to
enforce 	agreements 	between 	the parties, 	and
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determine 	if 	a 	unilateral 	change 	has 	occurred. 	Victor 	Valley
Joint 	Union High School District 	(12/31/81) 	PERB Decision
No. 	192. 	As 	the 	instant case 	involves conduct which could
independently 	violate 	EERA and 	because 	no 	provision 	for 	binding
arbitration 	exists 	to 	which 	the Board 	would 	defer,8 we
conclude 	that 	the Board 	is 	not precluded 	from 	reviewing 	the
applicable provisions 	of 	the 	parties' 	agreement.
shall 	not 	issue 	a complaint on 	any 	charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
Additionally, 	in Grant Joint Union High 	School 	District
(2/26/82) 	PERB Decision No. 	196, 	the Board 	held that 	subsection
3541.5(b) 	permits 	it 	to 	entertain 	a breach of contract 	as 	an
independent 	unilateral change 	if 	the 	employer's conduct
evidences 	a 	change 	in policy 	which 	has 	a 	"generalized 	effect 	or
continuing 	impact" 	on 	the 	terms 	and 	conditions 	of employment.
This 	case 	falls 	within 	the 	requirement 	of 	the Grant
decision. 	If 	the 	sick 	leave 	verification 	requirements 	were 	a
8Subsection 	3541.5(a) 	provides 	in part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall not 	do 	either 	of 	the 	following:
. . . . 	(2) 	issue 	a complaint 	against
conduct 	also 	prohibited 	by 	the 	provisions 	of
the 	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 	. . . .
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contract violation, 	they 	would also be 	significant 	enough 	to
have 	a generalized effect 	and 	continuing 	impact. 	However, 	the
Association must 	first 	show a 	violation of 	the 	contract. 	We
find 	in 	the 	instant 	case 	that 	the procedures 	implemented were
not 	a 	breach 	but 	a 	reasonable 	application 	of 	the 	contract's
provisions. 	The Board, 	therefore, 	rejects 	the hearing
officer's 	conclusion 	that 	the 	District 	acted 	beyond 	its
contractual authority 	in 	requiring 	the 	verification 	of 	absences
by either 	a doctor's letter 	or, 	in 	the alternative, 	a notarized
affidavit.
While 	the Board will 	afford 	deference 	to 	the 	hearing
officer's 	findings 	of 	fact 	which 	incorporate 	credibility
determinations, 	we 	are 	required 	to consider 	the 	entire 	record,
including 	the 	totality 	of 	the 	testimony 	offered 	and 	are 	free 	to
draw our 	own 	inferences 	from 	the 	evidence 	offered. 	Santa 	Clara
Unified School District 	(9/26/79) 	PERB Decision No. 	104.
There 	is 	conflicting 	testimony 	regarding 	the 	intent of 	the
parties when, 	in negotiations, 	they agreed 	to 	the sick 	leave
and 	personal necessity 	leave 	language. 	The 	hearing 	officer
resolved 	all 	differences 	in 	favor 	of CSEA.
We 	find 	it 	difficult 	to 	reconcile 	the 	hearing 	officer's
findings 	with 	the 	history 	of 	negotiations 	and 	the plain meaning
of 	sections 	4.2.6, 	4.17 	and 	1.4.2 	of 	the 	collective 	bargaining
agreement. 	The Association's contention 	that 	the 	sick 	leave
section 	limits 	the District 	to 	the procedure 	stated 	in 	the
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Merit 	System Rules 	is 	insupportable 	in 	light 	of 	the 	language 	of
the contract.
The MSR mentions 	only a 	doctor's 	statement 	as 	proof 	of
illness 	and 	requires 	documentation only after 	five 	days. 	The
contract 	language, 	on 	the other 	hand, 	adds 	"such other
reasonable 	form of 	proof," 	deletes 	the 	reference 	to 	five 	days
and 	explicitly 	substitutes 	"when 	reasonably 	required." 	Here,
we 	have 	distinct calculated 	differences 	in language,
differences 	which 	give credence 	to Dr. 	Cloud's 	testimony 	that
the District 	was 	determined 	to arrive 	at 	language 	which 	gave 	it
greater 	flexibility 	than 	the MSR language.
In addition, 	the 	hearing officer's conclusion 	that 	the 	sick
leave 	language 	was 	negotiated 	by management without 	it 	having
sick-outs 	in mind, 	because 	there 	never 	had 	been a sick-out 	in
the District, 	is strained, at best, 	as 	it relates 	to the 	1977
negotiations. 	The 	addition of 	section 	4.17 	in 	1979 	indicates
that, 	by 	that 	time, 	work 	stoppages 	were 	explicitly considered
and 	discussed.
In Chula Vista Police Officers Assn, 	v. 	Cole 	(1980) 	107
Cal.App.3d 	242, 	the 	court 	recognized 	that 	an 	employer, 	through
the negotiation process, 	may alter 	its 	rules 	concerning 	sick
leave 	to 	afford 	itself 	more protection 	from a sick-out. 	Here,
the 	District 	did precisely as 	was 	suggested 	in 	Chula Vista,
supra. 	Over 	the years, 	it negotiated 	into the 	agreement
language 	which 	provided 	flexibility 	in 	the 	sick 	leave 	procedure
13

to protect 	itself 	when 	it 	reasonably 	suspected 	that 	a 	sick-out
had 	occurred 	or 	would 	occur.
The 	fact 	that 	the District, 	in 	its 	routine procedure, 	has
followed 	a 	five-day 	rule 	and 	allowed 	absence 	reports 	to
function 	as 	adequate 	verification of 	illness 	does 	not 	indicate
that 	those 	are 	the 	exclusive procedures 	allowed 	under 	the
agreement. 	The contract 	language 	does 	not 	require 	a change 	in
existing practice but, 	rather, 	it allows a 	"reasonable 	form of
proof" 	"when 	reasonably required." 	Here, 	we 	have 	a sick-out by
a large 	number 	of 	employees, 	exactly 	the kind of 	situation
under 	which 	the 	"when 	reasonably 	required" 	language 	of 	the
contract 	might 	be 	expected 	to be 	utilized 	to 	determine 	who 	was
abusing 	the 	sick 	leave 	benefit. 	The 	District's 	affidavit
requirement 	is 	not 	so burdensome 	as 	to make 	it 	an 	unreasonable
form of proof, 	but 	rather 	well within 	the contractual standard
of 	a 	"reasonable 	form of 	proof." 	The 	additional 	requirement
that 	an 	affidavit 	be 	attested 	to 	by 	a 	notary 	provided 	by 	the
District 	and 	executed on 	District 	time 	is 	neither 	arbitrary 	nor
discriminatory. 	The 	requirement 	reasonably 	balances 	the 	burden
of 	documentation 	so 	that 	those 	who 	cannot 	produce 	a doctor's
statement 	cannot 	take 	advantage 	of 	a 	markedly 	less 	burdensome
requirement 	such 	as 	merely 	filling 	out 	the 	absence 	report 	form.
Barstow 	Unified 	School District 	(6/11/82) 	PERB Decision
No. 	215 	and 	Sacramento City 	Unified 	School 	District 	(6/28/82)
PERB Decision No. 	216 	are 	distinguishable 	from 	the 	instant
14

case. 	In Barstow, 	the parties' collective 	bargaining 	agreement
was 	silent on 	leave 	verification 	requirements. 	In Sacramento
the 	District 	unilaterally 	changed 	the 	reasons 	for 	which 	leave
could 	be 	taken. 	In the 	instant case, 	we 	have 	found 	that 	there
was 	no 	unilateral 	change 	because 	the 	action 	taken by 	the
District 	had 	been 	subject 	to 	bargaining 	and 	was 	consistent with
the 	agreement 	reached 	through 	the 	1977 	and 	1979 	contract
negotiations 	which 	provided 	the 	District 	with 	authority 	to
undertake 	such 	action.
Personal 	Necessity 	Leave 	Verification
We 	take 	the 	same 	position with 	regard 	to 	the 	claim of
Spring 	Toms-Oakes. 	The 	additional requirement of 	a sworn
affidavit 	verifying 	that 	her 	personal 	necessity 	leave 	was 	taken
in accordance with 	the 	requirements 	of 	the contract was 	not 	a
unilateral 	change. 	The plain meaning 	of 	the 	contract 	applies.
The 	agreement 	specifies 	that 	the 	employee 	certify 	that 	the
personal 	leave 	taken was 	not used 	for 	"vacation, 	recreation or
business." 	While the contract provides, 	on the one 	hand, 	that
the 	employee 	need 	not 	reveal 	the 	reason 	for 	the 	leave 	as 	long
as 	it was 	not 	for 	one of 	the above purposes, 	it 	also provides
that, 	in 	the 	event of a dispute, 	the burden of proof 	rests with
the employee. 	The District's resolution of 	this 	conflict by
having 	the 	employee 	fill 	out 	an 	affidavit 	attesting 	to 	the
validity 	of 	the 	absence 	report 	form 	allows 	the 	employee 	to meet
her 	burden 	of 	proof 	without 	necessarily 	revealing 	the 	specific
reason 	for 	the 	leave.
15

There 	is 	no 	claim 	made 	nor 	evidence 	presented 	that 	this
action 	was 	taken 	because 	Spring 	Toms-Oakes 	was 	president of 	the
Association.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the entire 	record 	in 	this case, 	it 	is 	hereby ORDERED that
the subsections 3543.5(a), 	(b) 	and 	(c) 	violations charged
against 	the 	District 	be 	DISMISSED with 	prejudice.
Member 	Tovar 	joined 	in 	this 	Decision.
Member Jaeger's dissent begins on page 	17.
16

Member Jaeger, 	dissenting. 	I dissent 	from the 	opinion of
the 	majority 	and 	find 	that 	the 	District 	did 	violate 	subsections
3543.5(a), 	(b) 	and 	(c) 	by taking unilateral action to alter 	the
sick 	leave 	verification 	requirement.
The majority's 	creative 	interpretation of, 	and 	reliance on,
section 	4.2.6. 	of 	the parties' 	collective 	bargaining 	agreement
is 	misplaced. 	This 	section 	is 	not clearly written on 	its 	face
and, 	being ambiguous, 	it 	is 	susceptible 	to more 	than one
interpretation. 	Since 	the parties 	have 	failed 	to express 	their
intent 	with 	clarity, 	the 	ambiguity must 	be 	resolved 	by 	relying
on 	bargaining 	history 	and 	any 	past 	practice 	which may 	exist.
NLRB v. C. 	& C. Plywood Corp. 	(1967), 	385 U.S. 	421, 	17 L.Ed.
486.1
The 	District 	did 	not 	controvert 	the 	Association's 	showing
that 	the 	merit 	system 	rules 	governed 	the 	leave 	verification
requirement. 	The 	evidence 	also demonstrates 	that 	the merit
system 	rules were on 	the 	table 	in 	1977 	and discussed 	as 	the
verification 	requirement. 	It 	is 	interesting 	to note 	that 	the
District did 	propose 	alternate 	language 	in 	1977 	for
section 4.2.6. 	stating:
An employee 	shall, 	when 	required by his or
her 	supervisor, 	give 	adequate 	proof 	in 	the
form of 	a 	letter 	from his 	or 	her 	physician
as 	required 	by 	such 	supervisor.
1It 	is 	appropriate 	for 	the 	Board 	to 	take 	guidance 	from
federal 	labor 	law 	precedent 	when 	applicable 	to public 	sector
labor 	relations 	issues. 	Fire Fighters Union, 	Local 	1186 	v.
City of Vallejo 	(1974) 	12 Cal.3d 608 	[116 Cal.Rptr. 	5071];
Los Angeles 	County Civil Service Commission v. 	Superior 	Court
(1978) 	23 Cal.3d 65 	[15 Cal.Rptr. 	547].
17
•

The 	fact 	that 	the District 	did 	raise 	the 	issue 	of 	a more
stringent 	sick 	leave 	procedure, 	but during 	the 	course of
negotiations 	either 	dropped 	its 	proposal 	or 	modified 	the
language 	to the more benign 	"reasonable" 	wording, 	implies
acquiescence. 	The District 	did 	have 	the 	opportunity 	to
strengthen 	its verification procedure 	and, 	if 	it wished 	to
change 	the 	practice 	that 	existed 	under 	the 	merit 	system 	rules,
it 	should 	have 	done 	so during 	contract 	negotiations 	in 	1977 	and
1979. 	Otherwise, 	it 	ran 	the 	risk of having any ambiguity 	in
the 	language 	resolved 	on 	the 	basis 	of 	construction 	established
by past practice 	and 	bargaining 	history. 	In 	this 	case, 	the
identical 	leave 	verification 	language 	was 	incorporated 	in 	the
agreement of 	1977 	and again 	included, 	without change, 	in 1979.
It would appear, 	therefore, 	that 	in the absence of any change
or 	qualification 	in 	the 	language, 	the 	merit 	system 	rules
control 	and 	not 	the 	interpretation given 	by 	the 	District 	and
affirmed 	by my 	colleagues.
In respect 	to 	the 	majority's 	reliance 	on 	section 	4.17 	of
the contract, 	I 	find no 	basis on which 	to conclude 	that 	this
provision 	reinforces 	the 	District's 	right 	to alter 	the 	leave
verification procedure. 	I 	agree 	that 	the language of 	this
provision means 	that 	the 	District 	should 	not 	subsidize 	work
stoppages by 	granting paid 	leaves, 	but also 	it does 	not 	grant
the District 	the 	right 	to 	unilaterally 	impose more 	rigorous
verification 	practices 	to curtail 	such 	activity. 	Therefore,
18

only 	those 	rights 	reserved 	to 	it 	in other 	provisions 	of 	the
contract 	can 	be 	exercised. 	Section 	4.17 	simply does 	not
include 	a 	mechanism for 	its 	enforcement 	and we 	cannot 	as 	a
matter 	of 	law 	infer 	an 	enforcement 	right 	that 	was 	never
negotiated.
19