Dixie Elementary School District (PERB 0298E)

STATE 	OF 	CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
DIXIE 	TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
DIXIE ELEMENTARY SCHOOL 	DISTRICT,
Respondent.
C a s e 	N o . 	SF-CE-634
PERB 	D e c i s i o n 	No. 	298
March 29, 	1983
Appearances; 	Kirsten L. 	Zerger, 	Attorney for Dixie Teachers
Association, CTA/NEA; 	Richard V. Godino, Attorney 	(Breon,
Galgani, 	Godino 	& O'Donnell) 	for Dixie Elementary School
District.
Before Gluck, Chairperson; 	Tovar 	and Morgenstern, Members.
DECISION
GLUCK, 	Chairperson: 	The Dixie Elementary School District
(District) 	excepts 	to 	the 	attached 	hearing officer's 	decision
finding that 	it violated subsections 	3543.5(a), 	(b) 	and 	(c) 	of
the Educational Employment Relations Act 	(EERA)1 by 	refusing
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	references 	hereafter 	will 	be 	to 	the Government
Code unless otherwise 	indicated. 	Subsections 	3543.5(a), 	(b)
and 	(c) 	state:
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.
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to negotiate with 	the Dixie Teachers Association, 	CTA/NEA 	terms
and 	conditions 	of 	employment 	for 	substitute 	and 	temporary
teachers. 	The District contends 	that 	the Public Employment
Relations Board 	(PERB) 	unlawfully 	accreted 	the 	two 	employment
classifications 	to 	a unit 	of 	full-time 	classroom 	teachers 	in
Dixie Elementary School District 	(8/11/81) 	PERB Decision No.
171. 	It maintains 	that, 	because 	that 	decision was 	contrary 	to
law, 	the present 	refusal 	to 	bargain 	charge 	should 	be 	dismissed.
DISCUSSION
The District's 	only 	defense 	to 	the 	refusal 	to 	bargain
charge 	is 	that 	the 	underlying 	unit modification, 	PERB Decision
No. 	171, 	supra, was unlawful. 	However, 	it has failed to offer
either 	new 	facts 	or 	arguments 	of 	law 	supporting 	its 	contention
and 	simply 	restates 	the 	argument 	it made 	in PERB 	Decision
No. 	171. 	We were 	not persuaded 	by 	the 	argument 	then 	and 	find
now 	that 	it 	fails 	to excuse 	the District's 	refusal 	to negotiate
working 	conditions 	for 	substitute 	and 	temporary 	employees 	who
have 	been accreted 	to 	the 	unit. 	This 	conduct 	likewise 	denies
employees 	and 	the 	employee 	organization 	their 	rights 	guaranteed
by 	the 	statute.2
(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 San Francisco Community College 	District 	(10/12/79) 	PERB
Decision No. 	105.
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ORDER
Upon 	the 	foregoing 	findings of 	fact, 	conclusions of 	law,
and 	the 	entire 	record 	in this case, 	it 	is hereby ORDERED that
the 	Dixie Elementary School 	District 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Violating subsections 3543.5(a), 	(b) 	and 	(c) 	of
the 	Educational Employment 	Relations Act 	by 	failing 	and
refusing 	to 	meet 	and 	negotiate 	in 	good 	faith 	with 	the 	exclusive
representative 	on matters 	within 	the 	scope of 	representation,
as 	defined 	by 	section 	3543.2, 	for 	temporary 	and 	substitute
teachers;
2. 	Denying 	the 	Dixie Teachers Association, 	CTA/NEA
its 	right 	to 	represent 	such 	unit members 	by 	failing 	and
refusing 	to meet 	and 	negotiate 	in 	good 	faith 	about matters
within 	the 	scope 	of 	representation; 	and
3. 	Interfering 	with 	such 	employees' 	right 	to 	select
an 	exclusive 	representative 	and 	participate 	in 	its 	activities
by 	failing 	and 	refusing 	to meet 	and 	negotiate 	with 	the
exclusive 	representative 	on matters 	within 	the 	scope 	of
representation.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
1. 	Upon request, 	meet 	and 	negotiate with 	the Dixie
Teachers Association, 	CTA/NEA on matters 	within 	the 	scope of
representation 	for 	temporary 	and 	substitute 	employees.
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2. 	Within 	thirty 	(30) 	workdays 	of 	service of 	this
Decision, 	post 	at all 	school sites 	and 	all work 	locations,
where 	notices 	to 	employees 	are 	customarily placed, 	copies 	of
the 	appended Notice 	to Employees 	(Appendix). 	Such posting
shall 	be maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive
workdays 	and 	reasonable 	steps 	shall 	be 	taken 	to 	insure 	that
such Notices are not reduced 	in size, 	defaced, 	altered, 	or
covered 	by 	any material.
3. 	Notify 	the 	San 	Francisco 	regional director 	of 	the
Public 	Employment 	Relations 	Board 	in 	writing 	within 	forty-five
(45) 	workdays 	following 	the 	service 	of 	this 	Decision of 	the
steps 	taken 	by 	the 	Dixie 	Elementary 	School 	District 	to 	comply
with 	this 	Order.
Members 	Tovar 	and Morgenstern 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY ORDER 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
AN AGENCY OF 	THE 	STATE 	OF 	CALIFORNIA
After 	a hearing 	in Unfair Practice Case No. 	SF-CE-634,
Dixie Teachers Association, 	CTA/NEA v. 	Dixie Elementary School
District, 	in which all parties 	had 	a right 	to participate, 	it
has 	been 	found 	that 	the Dixie Elementary School District:
Unlawfully 	failed 	and 	refused 	to 	negotiate 	with 	the 	Dixie
Teachers Association, 	CTA/NEA on matters 	within 	the 	scope 	of
representation 	for 	temporary 	and 	substitute 	teachers 	who 	were
accreted 	to 	the 	certificated 	unit, 	and 	thereby 	denied 	the Dixie
Teachers Association, 	CTA/NEA 	its 	right 	to represent 	such
employees 	and 	interfered 	with 	such 	employees' 	right 	to 	select
an 	exclusive 	representative 	and 	participate 	in 	its 	activities.
The Dixie Elementary School District 	agrees, 	upon 	request,
to meet 	and 	negotiate 	with 	the 	Dixie Teachers Association,
CTA/NEA 	about matters 	within 	the 	scope 	of 	representation 	for
such 	substitute 	and 	temporary 	employees.
Copies 	of 	this Notice 	are 	to 	be 	posted 	at 	all 	work
locations 	where 	notices 	to 	employees 	are 	customarily placed 	and
will 	remain 	there 	for 	thirty 	(30) 	consecutive workdays.
DIXIE 	ELEMENTARY SCHOOL 	DISTRICT
Dated: 	-. .	By:Authorized Agent 	of 	the 	District
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED 	FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST
NOT 	BE 	REDUCED 	IN 	S I Z E , 	DEFACED, 	ALTERED 	OR 	COVERED BY ANY
MATERIAL.

STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DIXIE TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
DIXIE ELEMENTARY 	SCHOOL DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-634
PROPOSED 	DECISION
( 4 / 7 / 8 2 )
Appearances; 	Kirsten L. 	Zerger, 	attorney 	for 	the 	Dixie
Teachers Association, 	CTA/NEA; 	Diana K. 	Smith, 	attorney 	(Breon,
Galgani, 	Godino & 	O'Donnell) 	for 	the Dixie Elementary School
District.
Before Gerald A. 	Becker, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This charge was 	filed on January 	20, 	1982 	by 	the 	Dixie
Teachers Association, 	CTA/NEA 	(hereafter 	Association) 	against
the 	Dixie 	Elementary 	School District 	(hereafter 	District)
alleging 	the 	District 	refuses 	to negotiate 	the wages, 	hours 	and
other 	terms 	and 	conditions 	of 	employment 	for 	certain 	day-to-day
substitute 	and 	temporary 	teachers. 	Violations of 	Government
Code subsections 3543.5 (a), 	(b) 	and 	(c) 	of the Educational
Employment 	Relations Act 	(hereafter 	EERA) 	are 	alleged.1
1EERA 	is 	codified 	at Government 	Code 	section 	3540 	et
seq. 	All 	statutory references are 	to 	the Government Code
unless 	otherwise 	stated.
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Since 	this 	case 	involves 	a 	"technical" 	refusal 	to bargain
by 	the 	District 	in order 	to obtain 	judicial 	review of 	a prior
PERB 	decision placing 	these 	employees 	in 	a negotiating 	unit
represented 	by 	the 	Association,2 the 	parties 	agreed 	to waive
the normal procedure 	of a 	hearing 	and written 	briefs. 	Instead,
they 	stipulated 	to 	the 	facts 	and 	requested 	the 	matter 	be
expedited, 	either 	by 	transfer 	to 	the 	PERB 	itself 	for 	decision
or 	by proposed decision by 	this administrative 	law judge. 	By
letter dated March 	17, 	1982, 	the chief administrative 	law judge
designated 	this matter 	as 	one 	to 	be 	expedited 	for 	proposed
decision 	by 	the 	undersigned.
ISSUE
In violation of subsections 3543.5(a), 	(b) 	and 	(c), did
the 	District 	unlawfully 	refuse 	to negotiate 	with 	the
Association 	over 	the 	terms 	and 	conditions of 	employment 	of
substitute 	and 	temporary 	employees 	in 	issue?
FINDINGS 	OF FACT
Dixie 	Elementary 	School 	District 	is 	an 	employer 	and 	Dixie
Teachers Association, 	CTA/NEA is 	an employee organization
within 	the 	meaning 	of 	the 	EERA.
2Dixie 	Elementary School District 	(8/11/81) 	PERB
Decision N O . 	171. 	Subsection 	3542(a)(2) 	provides 	for 	judicial
review of 	a 	unit 	determination decision 	"when 	the 	issue 	is
raised 	as 	a defense 	to an 	unfair 	practice complaint."
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Following 	are 	the 	essential 	facts 	stipulated 	to 	by 	the
parties.
On 	September 	8, 	1976 	the 	District 	recognized 	the
Association as 	the 	exclusive 	representative of a unit of
certificated employees. 	On December 	16, 	1976 	the parties
entered 	into 	a 	unit 	clarification 	agreement 	which 	excluded 	from
the 	unit 	substitute 	and 	temporary 	employees 	employed 	for 	less
than 75 percent of 	the 	school year.
On August 9, 	1979 	the Association 	filed a petition 	for
unit 	modification 	seeking 	to 	include 	the 	substitute 	employees
in 	the 	unit. 	The 	unit modification petition 	later 	was 	amended
to 	include 	the 	temporary 	employees.3
On August 11, 	1981, 	in Dixie Elementary School District,
supra, 	the 	PERB 	itself 	affirmed 	the 	hearing officer's 	decision
adding 	the 	substitute 	and 	temporary 	employees 	to 	the 	existing
certificated 	negotiating 	unit 	represented 	by 	the 	Association.
On 	October 	28, 	1981 	the Association presented 	its 	initial
negotiations 	proposal 	to 	amend 	the 	existing 	collective
bargaining 	agreement 	as 	it 	related 	to 	the 	employees 	added 	to
the unit.
Despite 	the 	Association's 	continuing 	request 	to negotiate,
the 	District 	has 	and 	continues 	to 	refuse 	to negotiate 	over 	the
terms 	and 	conditions 	of 	employment of 	all 	the 	employees 	added
to the unit 	in PERB Decision No. 	171.
3unit 	modification procedures 	are 	found 	in PERB
Regulation 	33260 	et 	seq. 2

DISCUSSION AND CONCLUSIONS 	OF LAW
The 	District 	raises 	no defense 	to 	this 	unfair 	practice
charge other 	than 	that 	it disagrees with PERB Decision No. 	171
including 	substitute 	and 	temporary 	employees 	in 	the 	same
negotiating 	unit 	with 	other 	certificated 	employees.
This 	case 	presents 	the 	same 	procedural posture 	as 	Redondo
Beach City School District 	(10/14/80) 	PERB Decision No. 	140, 	in
which 	a 	school district 	refused 	to 	negotiate 	with 	an 	exclusive
representative 	in contravention of a previous 	PERB 	unit
decision. 	The 	PERB 	affirmed 	the 	hearing 	officer's 	conclusion
that
In 	the 	absence 	of 	the 	presentation 	of 	newly
discovered 	or 	previously 	unavailable 	evidence 	or
special 	circumstances 	relitigation 	of 	PERB's
unit determination 	is 	not 	warranted. 	PERB's
unit 	determination 	is 	therefore 	binding
precedent. 	(Redondo Beach, 	supra, 	at p. 	3 of
hearing 	officer 	decision.)
Therefore, 	the 	District's admitted 	refusal 	to negotiate
with 	the Association over 	the 	terms 	and 	conditions of
employment 	of 	the 	substitute 	and 	temporary employees 	in 	issue
constitutes 	a refusal 	to negotiate 	in good 	faith 	in violation
of 	subsection 3543.5(c). 	There also are derivative violations
of 	the 	Association's 	subsection 	3543.5(b) 	right 	to 	represent
unit members, 	and of 	the affected employees'
subsection 	3543.5 (a) 	right 	to be represented 	by an exclusive
representative 	of 	their 	own choosing. 	San 	Francisco 	Community
College District 	(10/12/79) 	PERB Decision No. 	105.
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REMEDY
Under 	Government Code 	section 3541.5(c) 	the Public
Employment 	Relations 	Board 	has:
. 	. 	. 	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 	. 	. 	.
as well as effectuate 	the policies of 	this
chapter.
Having 	found 	the 	District violated 	subsections 	3543.5(a),
(b) 	and 	(c) 	by 	refusing 	to negotiate with 	the Association with
respect 	to the 	substitute 	and 	temporary employees, 	it 	is
appropriate 	to order 	the 	District 	to cease 	and 	desist 	from 	this
unlawful behavior, 	and 	upon request 	to meet 	and negotiate 	with
the Association 	with 	respect 	to proposals made on 	behalf of
these 	employees.
It 	also 	is 	appropriate 	that 	the 	District be 	required 	to
post a notice 	incorporating 	the 	terms of 	the order. 	The notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
indicating 	that 	it will comply with 	the 	terms 	thereof. 	The
notice 	shall not 	be 	reduced 	in 	size. 	Posting 	such 	a notice
will provide 	employees with 	notice 	that 	the 	District 	has 	acted
in 	an 	unlawful manner 	and 	is being 	required 	to cease 	and desist
from 	this 	activity 	and 	to restore 	the 	status quo. 	It
effectuates 	the 	purposes of 	the 	EERA 	that 	employees 	be 	informed
of 	the 	resolution 	of 	the controversy 	and 	will 	announce 	the
District's 	readiness 	to comply 	with 	the 	ordered 	remedy. 	See
A	
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Placerville 	Union 	School 	District 	(9/18/78) 	PERB 	Decision 	No.
69. 	In 	Pandol and 	Sons 	v. 	ALRB 	and 	UFW 	(1979) 	98 	Cal.App.3d
580, 	587, 	the 	California 	District 	Court 	of Appeal 	approved 	a
posting 	requirement. 	The 	U.S. 	Supreme 	Court 	approved 	a 	similar
posting 	requirement 	in NLRB 	v. 	Express 	Publishing 	Co. 	(1941)
312 U.S. 	426 	[8 LRRM 4 1 5 ] .
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and 	the 	entire 	record 	in 	the 	case, 	and pursuant 	to 	section
3541.5 (c), 	it 	is 	hereby ordered 	that 	the 	Dixie Elementary
School 	District, 	its 	governing 	board 	and 	its 	representatives
shall:
1. 	CEASE AND 	DESIST FROM:
(a) 	Refusing 	to 	negotiate 	in 	good 	faith with 	the
Association 	in 	violation of 	subsection 	3543.5(c).
(b) 	Denying 	the 	Association 	its 	right 	to 	represent
unit 	members 	in violation 	of 	subsection 	3543.5(b).
(c) 	Denying 	unit 	members 	their 	right 	to 	be
represented 	by 	an 	exclusive 	representative 	of 	their 	own
choosing 	in violation of 	subsection 3 5 4 3 . 5 ( a ) .
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED
TO 	EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(a) 	Upon 	request, 	meet 	and 	negotiate 	in good 	faith
with 	the 	Association 	as 	the 	exclusive 	representative 	of 	all
unit 	members.
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(b) 	Within five 	(5) 	workdays after 	this 	decision
becomes 	final, 	prepare 	and post copies of 	the 	NOTICE TO
EMPLOYEES 	attached 	as 	an 	appendix 	hereto, 	for 	at 	least 	thirty
(30) 	workdays at 	its 	headquarters offices 	and 	in conspicuous
places 	at 	the 	location 	where 	notices 	to 	certificated 	employees
are 	customarily posted. 	It must 	not 	be 	reduced 	in 	size 	and
reasonable 	steps 	should 	be 	taken 	to 	see 	that 	it 	is 	not 	defaced,
altered 	or 	covered 	by 	any 	material.
(c) 	Within 	twenty 	(20) 	workdays 	from service 	of 	the
final decision 	herein, 	give 	written 	notification 	to 	the 	San
Francisco 	Regional 	Director 	of 	the 	Public 	Employment 	Relations
Board, 	of 	the 	actions 	taken 	to comply with 	this 	Order.
Continue 	to 	report 	in 	writing 	to 	the 	Regional 	Director
thereafter 	as 	directed. 	All 	reports 	to 	the 	Regional Director
shall 	be 	concurrently 	served 	on 	the 	charging 	party 	herein.
Pursuant 	to California Administrative Code, 	title 8, 	part
III, 	section 32305, 	this Proposed 	Decision and 	Order 	shall
become final on 	April 27, 1982 	, 	unless a party 	files a
timely 	statement 	of 	exceptions. 	See 	California Administrative
Code 	title 8, 	part III, 	section 32300. 	Such 	statement of
exceptions 	and 	supporting 	brief must 	be 	actually 	received 	by
the 	executive 	assistant 	to 	the Board 	at 	the 	headquarters office
of 	the Public 	Employment 	Relations Board 	in 	Sacramento before
the 	c l o s e 	of 	b u s i n e s s 	(5:00 	p.m.) 	on 	April 27, 1982 	, 	in
order 	to be 	timely 	filed. 	See 	California Administrative 	Code,
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title 8, 	part 	III, 	section 32135. 	Any 	statement of 	exceptions
and 	supporting 	brief must 	be 	served 	concurrently 	with 	its
filing 	upon 	each party 	to 	this proceeding. 	Proof 	of 	service
shall be 	filed with 	the Board 	itself. 	See 	California
Administrative Code, 	title 8, part III, 	sections 32300 and
32305 	as 	amended.
Dated: April 7, 1982
GERALD A. 	BECKER
Administrative 	Law 	Judge
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