Grossmont Union High School District (PERB 0313EA)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

GROSSMONT EDUCATION ASSOCIATION,

Charging Party, Case No. LA-CE-1264

Vv.
PERB Decision No. 313

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Request for Reconsideration
GROSSMONT UNION HIGH SCHOOL )
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DISTRICT, PERB Decision No. 313a
Respondent. June 6, 1984
Appearances; Richard J. Currier, Attorney (Littler, Mendelson,

Fastiff & Tichy) for Grossmont Union High School District;
Charles R. Gustafson, Attorney for Grossmont Education
Association.
Before Tovar, Morgenstern and Burt, Members.
DECISION
TOVAR, Member: The Grossmont Education Association
(Association) requests that the Public Employment Relations

Board (PERB or Board) reconsider its decision in Grossmont

Union High School District (5/26/83) PERB Decision No. 313.

For the reasons which follow, that request is denied.
DISCUSSION
In Grossmont Union High School District, supra, the Board
found that the Association had agreed, via a collectively
negotiated contract, to a policy providing that all teachers in
the District could be assigned a maximum of five periods per

day of classroom instruction. On that basis, we dismissed the

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Association's 	charge 	that, 	by 	increasing 	the work 	assignment of
Educationally Handicapped 	(EH) 	teachers 	from four 	periods 	of
classroom 	instruction 	to 	five, 	the District had 	violated
subsection 3543.5(c) 	of 	the Educational Employment Relations
Act 	(EERA).)1
The Association's 	arguments 	in 	the 	instant 	request 	for
reconsideration 	raise 	two basic 	contentions: 	that 	it 	never
contractually 	agreed 	to 	a policy permitting 	the 	District 	to
increase 	the 	work 	assignment 	of EH 	teachers 	to 	five 	classes;
and 	that, 	even 	if 	it did, 	the District's 	actions 	in this case
not only affected 	the 	number 	of 	classes 	assigned, 	but
unilaterally 	changed 	wage 	and 	class 	size 	levels.
In 	contending 	that 	the Board's 	interpretation of 	the
contract was 	erroneous, 	the Association directs 	our 	attention
to evidence of 	the 	parties' 	intent 	during 	the 	negotiation of
that 	contract. 	This 	evidence 	was 	carefully considered 	in our
underlying decision at pp. 	10-11. 	We 	concluded 	that 	nothing 	in
the 	bargaining 	history 	indicated 	that 	the 	contract 	provisions
fixing 	the 	standard 	work 	assignment 	at 	five 	classes 	should 	be
interpreted 	to exclude EH 	teachers. 	Upon 	reexamination 	of 	this
evidence, 	we 	conclude 	that, 	with 	regard 	to 	the 	significance of
the 	negotiating 	history, 	the 	underlying 	decision 	contains 	no
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq.
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prejudicial 	error 	of 	fact 	of 	the 	kind 	contemplated 	by 	section
32410(a) 	of 	PERB's 	regulations.2
The Association 	also 	asserts 	that 	the Board 	departed 	from
its 	well-established 	standard 	for 	waiver 	of 	negotiating
rights. 	This 	assertion mischaracterizes 	the Board's decision.
We 	applied 	the 	standard 	requiring 	a 	showing 	of 	"clear 	and
unmistakable 	language or 	demonstrable 	behavior" 	as we 	have 	in
similar 	cases 	preceding 	Grossmont.3 Contrary 	to 	the
Association's 	argument 	in 	the 	instant 	request, 	we 	did 	not 	infer
a 	waiver 	merely 	from 	the 	fact 	that 	the 	workload 	provision 	was
silent with 	regard 	to EH 	teachers. 	Rather, 	our 	conclusion was
that
We 	find 	the 	wording 	of 	the 	workload
provision 	sufficiently clear, 	in 	light of
its 	treble 	repetition 	and 	the 	absence 	of 	any
2pERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31000 et 	seq. 	Subsection
32410(a) provides:
(a) 	Any party 	to 	a decision of 	the Board
itself may, 	because of extraordinary
circumstances, 	file a 	request 	to reconsider
the 	decision within 20 	days 	following 	the
date of service of the decision. 	. 	. 	. 	The
grounds 	for 	requesting 	reconsideration 	are
limited 	to claims 	that 	the 	decision 	of 	the
Board 	itself 	contains 	prejudicial 	errors 	of
fact, 	or 	newly discovered 	evidence 	or 	law
which 	was 	not previously 	available 	and 	could
not 	have 	been 	discovered 	with 	the 	exercise
of 	reasonable diligence.
3See, 	e.g., 	Amador Valley Joint Union High School
District 	(10/2/78) 	PERB Decision No. 	74; 	Walnut Valley Unified
School District 	(2/28/83) 	PERB Decision No. 	289.
w

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expressed 	exceptions 	such 	as 	those 	which
occur 	elsewhere 	in the contract, 	to
establish 	a 	"clear 	and 	unmistakeable"
objective meaning. 	We 	conclude 	that 	by
agreeing to 	these provisions, 	the
Association 	waived 	its 	right 	to 	negotiate
over 	the 	change 	in 	assignment.
(Grossmont, supra, at
p. 	17.)4
The Association 	next 	asserts 	that 	the Board 	committed 	error
by 	ignoring 	evidence 	that 	some 	teachers 	received 	lower 	wages
than 	they had 	the 	year 	before 	as 	a 	result of 	the District's
modification of 	the 	work 	assignment. 	Again, 	the Association
misstates 	the Board's decision. 	In 	its 	statement of 	facts, 	the
Board 	acknowledged 	that 	for 	the 	year 	before 	the 	change 	in work
assignment, 	the District 	had 	assigned 	only 	four 	classes 	to 	each
EH 	teacher 	and 	that, 	when 	some EH 	teachers 	took on 	a 	fifth
class 	in mid-year, 	they 	received 	a 	25-percent 	addition 	to 	the
standard 	salary. 	This evidence, 	however, 	without more, 	does
4In 	connection 	with 	its 	claim 	that 	the Board 	erred 	in
finding 	a contractual waiver, 	the Association points 	to certain
misstatements 	of 	fact 	which 	appear 	in 	the 	underlying 	decision.
Upon 	review, 	we 	acknowledge 	that 	the Board 	incorrectly
asserted, 	at p. 	6, 	that other 	teachers 	in the 	special education
department, 	in addition to EH teachers, 	once 	taught only four
classes 	a day. 	In 	fact, 	the 	evidence 	indicates 	that 	the EH
teachers 	were 	unique 	within 	the 	special 	education 	department 	in
being 	assigned 	only 	four 	periods of 	instruction 	a day. 	The
Board 	also 	erred 	at p. 	17 	in 	describing 	the District's policy
on 	release 	time 	for 	department 	chairpersons. 	In 	fact, 	the
District 	has 	no discretion 	in 	determining 	the 	amount of 	release
time 	awarded 	to department 	chairpersons, 	but 	is 	bound 	to a
specific schedule 	set forth 	in 	the parties' 	contract. 	These
factual matters, 	however, 	were 	not essential to the Board's
resolution of 	the 	case, 	and 	thus 	do 	not 	constitute 	prejudicial
error 	as 	contemplated 	by 	section 	32410 	of PERB's 	regulations.
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not establish 	that 	the District 	thereby waived 	its 	right, 	as
provided 	in 	the 	contract, 	to 	assign 	five classes 	as 	the
standard 	work 	assignment 	compensated 	by 	the 	standard 	salary.
Finally, 	the Association contends 	in 	its 	request 	for
reconsideration 	that 	the 	District's 	failure 	to 	negotiate 	before
changing 	the 	work 	assignment 	was 	unlawful 	because 	the 	change
resulted 	in 	an 	increase 	in class 	size 	for 	the 	affected
teachers. 	In so arguing, 	the Association appears 	to have
misinterpreted 	the 	term 	"class 	size" 	as 	it 	appears 	in 	section
3543.2 	of 	the EERA, 	which 	defines 	the 	scope of 	representation.
Thus, 	the Association points 	to evidence 	that, 	as a result of
the 	increase 	in 	teaching periods, 	the 	number of 	students
instructed 	by EH 	teachers 	over 	the 	course 	of 	their 	workday
increased 	from an average 	of 	18.2 	to an average 	of 	20.51.
"Class 	size," 	however, 	does not 	refer 	to the 	total number of
students 	instructed 	by 	a 	teacher 	over 	the 	course 	of 	the 	full
workday. 	Rather, 	it 	signifies 	the 	number of 	students present
in 	a classroom during 	any one 	instructional period. 	The
Association does 	not 	argue, 	nor 	is 	there 	record 	evidence 	to
establish, 	that 	the 	number 	of 	students 	present 	in an EH
teacher's 	classroom at any one 	time 	increased. 	Thus, 	no
increase 	in class 	size was 	demonstrated.
ORDER
For 	the 	foregoing 	reasons, 	the 	request of 	the Grossmont
Education Association 	for 	reconsideration 	of PERB 	Decision
No. 	313 is DENIED.
Members Morgenstern 	and Burt 	joined in 	this 	Decision.