Salinas Union High School District (PERB 0339E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SALINAS VALLEY FEDERATION OF TEACHERS, )
LOCAL 1020, AFT, AFL-CIO, )
Charging Party, Case No. SF-CE-552
Vv. PERB Decision No. 339
SALINAS UNION HIGH SCHOOL DISTRICT, August 22,. 1983
Respondent.
)

Appearances: Vincent A. Harrington, Jr., Attorney (Van Bourg, .
Allen, Weinberg & Roger) for Salinas Valley. Federation of
Teachers, Local 1020, AFT, AFL-CIO; Patricia W. Mills, Attorney
(Breon, Galgani, Godino & O'Donnell) for Salinas Union High
School District.

Before Tovar, Morgenstern and Burt, Members.
DECISION

BURT, Member: This case is before the Public Employment
Relations Board (Board) on exceptions filed by the Salinas
Valley Federation of Teachers, Local 1020, AFT, AFL-CIO
(Federation) to the attached Administrative Law Judge's (ALJ)
proposed decision dismissing the Federation's charges that the
Salinas Union High School District (District) unilaterally
changed the terms and conditions of employment in violation of
subsections 3543.5(b) and (c) of the Educational Employment

Relations Act,1l by conducting in-service training at a

ithe Educational Employment Relations Act is codified at

faculty meeting, even though there was no provision for
in-service training in the contract, and during negotiations
the District had given up its right to conduct in-service
training after school hours.
In its exceptions, the Federation disputes minor factual
findings made by the ALJ and contests his interpretation of
those facts, urging the Board to conclude that the District had
no right to conduct in-service training after school hours.
We have carefully reviewed the entire record, including the
exceptions filed by the Federation and the District's response
to those exceptions. We find that the ALJ's findings of fact
are free of prejudicial error, and we adopt them as our own.
We further agree with the ALJ that the Federation has not met
its burden of proving that the District made a unilateral
change, and we therefore adopt his conclusions of law and
affirm his dismissal of the charges against the District.
Government Code section 3540 et seq. Section 3543.5 provides
in relevant part as follows:
It shall be unlawful for a public school
employer to:
(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.
N

ORDER
Upon the foregoing Decision and the entire record in this
case, the complaint against the Salinas Union High School
District is hereby DISMISSED.
Members Tovar and Morgenstern joined in this Decision.
w

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SALINAS VALLEY FEDERATION OF
TEACHERS, LOCAL 1020, AFT,
AFL-CIO,
Charging Party,
v .
SALINAS UNION HIGH SCHOOL
DISTRICT
Respondent.
Unfair Practice
Case No. SF-CE-552
PROPOSED DECISION
( 4/12/82 )
Appearances: 	Vincent A. Harrington, Jr. (Van Bourg, Allen,
Weinberg & Roger) , attorney for the charging party Salinas
Valley Federation of Teachers, Local 1020; Patricia W. Mills
(Breon, Galgani & Godino) , attorney for the respondent Salinas
Union High School District.
Before: Barry Winograd, Administrative Law Judge.
PROCEDURAL HISTORY
On April 20, 1981 the Salinas Valley Federation of
Teachers, Local 1020, AFL-CIO (hereafter Federation), filed an
unfair practice charge against the Salinas Union High School
District (hereafter District) . The charging party alleges, in
essence, that the employer unilaterally required teachers to
participate in an in-service training workshop beyond the
regular school day, during a contractually-provided faculty
meeting. The collective agreement between the parties
contained no express provision for in-service training, and the
employer had abandoned such a proposal during previous contract

negotiations. Under these circumstances, according to the
charging party, the District violated subsections 3543.5 (b) and
3543.5 (c) of the Educational Employment Relations Act
(hereafter EERA or Act) . 1
On May 11, 1981 the District filed its answer, admitting
certain particulars regarding the negotiating history and the
workshop session, but denying that a unilateral change in a
term or condition of employment had taken place or that it had
waived the right to conduct in-service training during a
faculty meeting. The District also claimed that the subject
matter (as distinct from "hours") of faculty meetings or
in-service training sessions was not within the scope of
representation under the Act.
1The EERA is codified at Government Code section 3540, et
seq. and is administered by the Public Employment Relations
Board (hereafter PERB or Board) . All references hereafter are
to the Government Code unless otherwise indicated. Section
3543.5 provides that it shall be unlawful for a public school
employer to:
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
Refuse or fail to meet and negotiate
in good faith with an exclusive
representative.

An informal settlement conference was conducted on
May 14, 1981 but the dispute was not resolved. 	On May 27, 1981
a complaint and notice of hearing was issued.
On June 19, 1981 respondent filed a motion to dismiss,
asserting that the employer had accepted an advisory
arbitration award of April 29, 1981 based on the same facts as
those underlying the unfair practice charge. The arbitrator
concluded that the District could conduct in-service training
during a faculty meeting as long as the time involved did not
extend the normal time for faculty meetings beyond the regular
workday. The District's acceptance of the award, according to
the respondent, rendered the charge "moot" and justified
dismissal in accord with the deferral requirement of subsection
3541.5 (a) of the Act. 2 The charging party opposed the
motion, contending that the dispute was neither moot nor
subject to deferral because the advisory arbitration did not
constitute a binding settlement of the conflict and, further,
the arbitrator had not considered the statutory issues that
2The relevant portion of subsection 3541.5 (a) prohibits
the issuance of 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.
3

were raised by the present charge. A copy of the arbitrator's
decision was appended to the charging party's opposition.
On July 22, 1981, the motion to dismiss was denied,
without prejudice to renewal of the motion if further evidence
would show that the charging party agreed to accept the
advisory arbitration award as a full settlement of all matters
relating to the contractual dispute. 	(Accord Pittsburg Unified
School District (3/15/82) PERB Decision No. 199.) The motion
to dismiss was not expressly renewed at or after the formal
hearing, although respondent continued to make reference to the
earlier proceeding in support of its arguments in this case.
By order of July 22, 1981, upon the motion of respondent
and with the agreement of opposing counsel, the venue for the
trial was changed from San Francisco to Salinas, California.
A formal hearing was conducted on August 24 and 25, 1981.
Post-hearing briefs were filed by both parties and, on
November 30, 1981, when no final reply was received from the
charging party on the date that had been set, the matter was
submitted for decision.
FINDINGS OF FACT
A . 	Background and past practice.
In 1976 the District adopted a job description for
teachers. This statement, Policy No. 4197, provided for
certain adjunct duties for teachers, including: parent
conferences, assigned extra-curricular supervision,

roll-taking, service on school and district committees,
back-to-school nights and open houses, departmental and general
faculty meetings, and in-service training sessions.
According to the evidence, faculty meetings involved
day-to-day aspects of local school administration, typically
dealing with report cards, attendance policies, testing
schedules, committee formations and reports, school and
cafeteria hours, and so on. Faculty meetings were usually held
no more than once a month, sometimes less often, except for
occasional emergency meetings. 	The meetings took place after
the regular teaching day (and sometimes in the early morning
before class) and lasted no more than one to one-and-a-half
hours. The agenda for faculty meetings was set by the site
principal, with some teacher input on particular items.
There was evidence introduced that in a few instances
faculty meetings were largely concerned with single topics,
such as a state accreditation evaluation report, incidents of
local gang or student violence, and reports on minority
relationships. In addition to nuts-and-bolts subjects, other
evidence indicated that certain topics were occasionally raised
in order to impart information about student health, social
and/or cultural issues. For example, presentations had been
offered touching upon drug use, alcoholism, child abuse,
special education programs, truancy abatement and burglary.
Most of these issues were discussed by District officials or
5

employees, but sometimes outside police or social service
personnel spoke. 3
In-service training sessions under Policy No. 4197 were
distinguishable from faculty sessions. The general statement
of this adjunct duty provided for:
Participation in school inservice training
sessions by all staff members individually
or in groups as planned mutually by the
instructional staff and principal.
Participation shall be not less than five
hours nor more than twenty-five hours per
academic year beyond the teacher workday.
The nature and length of such inservice
programs shall be tailored by the
instructional staff and principal to fit
the particular needs of the school.
Inservice time requirements may be
exceeded where such training is related to
a Stull Act Plan of Assistance.
Teachers and adminsitrators agreed that individual and
group in-service programs were designed to increase teacher
career advancement, and ethnic and cultural awareness, as well
as to improve basic instructional skills. A wide variety of
activities satisfied the credit requirements, including
3one repeat speaker (Bellizio) worked for a community
half-way house and social service program that was a joint
venture project in which the District participated. There was
no clear evidence that this person was actually a District
employee, even though part of his salary may have been derived
from District resources. Another outside speaker, a police
officer, presented the information about truancy abatement and
burglary in March 1981 after the workshop presentation at issue
in this case. For this reason, this example is not accorded
the same weight as other evidence introduced about established
practice.
6

workshop attendance, book reviews, and course work. In-service
training was supervised either by a local volunteer committee,
department chair, and/or site principal. District approval in
advance was required if the in-service training was not
sponsored by the District itself. No credit was given for
subjects akin to in-service training activity that were
presented during faculty meetings. In sum, there was
substantial evidence that, under established practice and
perception, faculty meetings and in-service training for credit
were considered to be separate teacher activities.
B. 	Contract negotiations.
Once the Federation became the exclusive representative in
the District, the parties began negotiations for a first
agreement in 1979. In the District's initial proposals, in
September 1979, the employer sought a block of 179 hours for
adjunct duties comparable to those set forth in Policy
No. 4197, including faculty meetings and in-service training.
The union opposed the block concept and proposed dealing with
adjunct duties individually. The union vigorously objected to
continuation of the program for in-service training credit as
it had existed under Policy No. 4197. Janet Hedlund, union
president and one of the chief negotiators, testified:
The history of the District on in-service
training and the response of the teachers
to that had been and has been one of, the
teachers felt that the in-service training,
by and large, was not meeting a purpose,
7

not helping them in any way, was a waste of
their time, an inefficient use of their
time, that it took away from their teaching
duties and their paperwork and their other
responsibilities that were directly related
to the classroom.
During negotiations, including mediation and factfinding,
the dispute over in-service training persisted. Early in
negotiations the District had dropped its block concept for
adjunct duty time. Thereafter, regarding separate in-service
duty, the District progressively lowered its demand from thirty
hours of in-service to five hours. The union remained firm in
its opposition to any after-school in-service credit
requirements. Eventually, after the factfinder recommended
against a separate specification for in-service duty, the
District abandoned this proposal. When other issues were also
resolved, an agreement was reached. The final contract
included provision for as many as ten faculty meetings a
year . 4
4The contract was effective May 16, 1979 through
June 30, 1980. Article VII (B) (1) (f) describes those adjunct
duties that were part of a teacher's hours of employment:
Classroom teachers and those employees
listed in paragraph 3. a-j may be required
to perform all or part of the following
duties beyond the regular workday. The
number of and assignment to the following
duties shall be on a reasonable and
equitable basis, and shall be scheduled by
CO

Substantial evidence was introduced about the negotiating
history in order to shed light on the agreed terms. It is
undisputed that there were no negotiations about in-service
training during the regular school day. It is also undisputed
that compensation for all adjunct duties was built into the
salary scale, without separate pay for individual assignments.
Beyond these points, the precise intent of the parties is
contested.
the District with regard to individual
preferences insofar as possible.
(1) 	Attendance at up to ten (10) faculty
meetings; attendance at a reasonable
number of regularly scheduled and
special department meetings.
(2) 	Performing assigned supervision of
students beyond the required on-site
workday, not covered by District
Policy 4143.1.
(3) 	Participation in non-extra pay
cocurricular programs of the school,
e.g., club sponsorship and class
sponsor ship.
(4) 	Attendance at no more than one back
to school night and no more than one
(1) open house.
(5) 	Participation in the school's
guidance program.
(6) 	Attendance at parent conferences at
the request of a parent, counselor
or administrator by appointment with
the teacher at times other than
during the required on-site work
hours.
(7) 	Service on school and District
committees.
9

Keith Breon, an attorney for the District and its chief
negotiator, testified that he had specifically exempted the
content or subject matter of adjunct duties, including faculty
meetings, from negotiations. Breon viewed negotiations as
limited to the impact of those duties upon teacher hours of
employment, including the frequency of specified activities
such as faculty meetings. The union did not contradict Breon's
testimony that content was excluded. One of the union's chief
negotiators, Marshall Brewer, admitted that Breon might have
stated such a reservation. The union claimed, however, that
although it had not raised the issue of the content of either
faculty meetings or in-service training sessions, it assumed
that established practice under Policy No. 4197 defined how
those duties were understood in negotiations.
Other evidence was offered regarding the District's
decision to abandon the in-service proposal. Breon testified
that the demand was dropped after informal confirmation that
there was no union objection to in-service sessions being
conducted on minimum session school days. Federation witnesses
testified that this was in accord with their view at the time
and possibly was stated at the bargaining table.
A testimonial dispute exists, however, over Breon's
further hearsay testimony that Hedlund assured the District's
superintendent that in-service sessions could also be conducted
during faculty meetings, and that this understanding formed a
10

basis for the District's decision to drop its demand. Hedlund
flatly denied ever having made the statement or heard such an
explanation during negotiations. The District did not call the
hear say declarant as a witness. Thus, Hedlund's testimony on
this point is credited:
I don't believe we discussed the
issue from either side once we got into
the last part of negotiations, once the
report was presented. 	It never was, my
recollection that it was not on the table
again. It was never discussed. It was
just dropped. Where the District was
coming from, we didn't know. We just
didn't see it on the table and we were
very glad for it. Since it had been a
separate item from faculty meetings, we
assumed that it was still separate and
that it was dropped. Since the District
didn't tell us otherwise, we had no other
reason to believe that it was otherwise.
With the expiration of the 1979-1980 contract, the parties
began negotiations for a successor agreement. There is no
allegation, other than the issue raised in this case, that the
employer failed to abide by applicable terms of the expired
agreement pending the next contract. An agreement was
eventually achieved covering the term of November 26, 1980
through June 30, 1982. This agreement included a provision for
adjunct duties that was identical in relevant aspects to the
term in the previous contract. The contract, therefore, did
not reflect any change in this article to take into account the
intervening dispute over in-service training that arose in
October 1980 and that led to a grievance and the instant charge.
11

C. 	The October 1980 violence and vandalism workshops.
During summer 1980, a committee of District officials,
classified employees, teachers, students, counselors, and a few
others met as a local working group that grew out of long-term
concerns over incidents of school violence. In the words of a
principal District organizer, the working group decided that a
program should be established,
. to inform our staff, as we had been
informed, of the gang potential in Salinas
and how that, how tensions are raised in
classroom through, maybe comments that
teachers aren't even aware of that produce
racial tensions and add to gang activity
on campus.
There was no evidence introduced that the Federation
participated in the summer working group or the subsequent
planning.
To implement the program, the District contacted outside
authorities to give presentations to District personnel, both
certificated and classified, on October 21 and 22, 1980. 	The
theme of the program was "violence and vandalism." 	One of the
speakers was from Los Angeles and had expertise on youth and
gang issues. He also contributed an analysis of local samples
of graffiti taken from the Salinas area. The other speaker
conducted a series of small group workshops, designed to
simulate classroom interactions and potential teacher-student
tensions.
12

The two-day October program was conducted at several
District schools. The District adopted minimum-day formats for
two consecutive days, limited however by an assumption that
state law required that one minimum day last 180 minutes, and
the other 240. In order to accommodate the length of the
programs, about two to two-and-one-half hours each day, the
need to shuttle the speakers between different school sites,
and the shorter minimum day for one session, the District
decided a few weeks before the sessions that it had to utilize
some time beyond the regular classroom day. Two high schools
were selected for these extra-time programs. The programs were
completed within the regular day at the other schools.
During the planning stage, District administrators
recognized that the contract made no separate provision for
programs similar in nature to in-service training and decided
that the workshops beyond the regular day at the two schools
would be carried over as "faculty meetings. " These
administrators realized that the use of faculty meeting time
would constitute one of the ten meetings per year authorized by
the contract.
The Federation was aware of the District's faculty meeting
decision about two weeks before the sessions. Although no
express demand to negotiate was made, Hedlund told District
officials that some individuals (for example, Brewer) might
file a contract grievance, even if she probably would not
grieve the presentation at her high school. There was
13

insufficient evidence to determine whether this reflected a
split within Federation ranks on the issue, or merely a
tactical decision by the union about how to raise an objection
since the contract permitted only individual employee
grievances. 	Regardless, the District went ahead with its
plans, asserting to the union that the District believed it had
a right, unaffected by the contractual history, to determine
the subject matter of faculty meetings. Significantly, Hedlund
conceded in her testimony that, from her point of view, the
District's action utilizing faculty meeting time would have
been consistent with established practice if the violence and
vandalism subject matter had been presented in the form of a
committee report, as other topics had been, and not as an
outside lecture and workshop presentation.
Finally, there is no persuasive evidence that the
District's decision to conduct the workshop had any impact on
teacher hours of employment beyond the faculty meeting time
presently in dispute. There was a speculative assertion
offered by Brewer that the preparation period for many teachers
at one school was eliminated because the minimum day structure
was used. However, other documentary evidence setting forth
the daily class scheduling casts doubt on this possible
impact. Hedlund also testified that there was no impact on
teacher hours beyond mere attendance. In any event, other
Federation testimony conceded that the District could have
14

understood when it dropped the in-service demand during
negotiations that the union would not object to in-service
sessions conducted on minimum school days. This understanding
was consistent with contractual language expressly allowing for
waiver of preparation periods on minimum school days. 5
ISSUE
Did the District unilaterally establish a term and
condition of employment by conducting an in-service training
workshop during a faculty meeting?
CONCLUSIONS OF LAW
The Federation claims, based on established practice, that
faculty meetings and in-service training constituted distinct
adjunct duties. 	The union contends that the 1979-1980 contract
language and negotiating history are in accord with this view.
Further, the Federation maintains that the District's
abandonment of its proposal for in-service training during
contract negotiations amounted to a waiver of the right to
assign that duty, precluding, under any guise, a District
requirement of in-service training beyond the regular working
day .
5In addition to their presence on October 21 and 22,
some teachers did spend about five minutes filling out a short
questionnaire evaluating the workshops. This appears to have
been a request for voluntary feedback. The District initially
offered a summary of the survey results as evidence, but the
employer withdrew its offer when questions were raised about
the survey's methodology.
15

In response, the District argues that neither past
practice, the terms of the agreement, nor the negotiating
history support the sweeping claims of the union, including the
waiver theory. 	The District asserts that negotiations involved
only the basic issue of hours (and extra-hours) of employment,
and not the content or subject matter of particular
assignments. Respondent also argues that the in-service
session in October was not unilateral employer action creating
a new term and condition of employment because the session was
sufficiently consistent with established faculty meeting
practice and the traditional exercise of managerial prerogative
over the content of those meetings. In this last regard, the
employer claims, as a last defense, that the content of faculty
meetings is beyond the scope of negotiations under the Act.
The PERB has held that under the EERA an employer is
prohibited from unilaterally establishing terms and conditions
of employment within the scope of representation without first
giving an exclusive representative notice and an opportunity to
meet and negotiate. San Mateo Community College District
(6/8/79) PERB Decision No. 94, citing with approval NLRB v.
Katz (1962) 369 U.S. 736.6 In this case, there is no dispute
6The construction of similar or identical provisions of
the National Labor Relations Act (hereafter NLRA) , 29 U.S. C.
section 151, et seq. , may be used to guide interpretation of
16

that the general subject of hours of employment is within the
scope of representation under the Act. 7 Nor is there any
dispute that the impact of teacher activity outside the regular
working day upon the hours of employment is also within the
scope of representation. See San Mateo City Schools (5/20/80)
PERB Decision No. 129.
In determining whether an employer's action constituted a
unilateral change, the trier of fact may examine the
established practice of the employer. Pajaro Valley Unified
School District (5/22/78) PERB Decision No. 51. And, in
resolving whether a waiver of a course of action or bargaining
rights was "clear and unmistakable, " express contractual terms
as well as the negotiating history can be weighed. 	Amador
Valley Joint Union High School District (10/2/78) PERB Decision
No. 74; Oakland Unified School District v. Public Employment
Relations Bd. (1981) 120 Cal.App. 3d 1007 enf. (4/23/80) PERB
Decision No. 126.
the EERA. See, e.g. , San Diego Teachers Assn. v. Superior
Court (1979) 24 Cal. 3d 1, 12-13; Fire Fighters Union v. City of
Vallejo (1974) 12 Cal. 3d 608, 618. Compare subsection
3543.5 (c) of the Act with section 8 (a) (5) of the NLRA
(29 U.S.C. sec 159 (a) (5) ) proscribing a refusal to bargain in
good faith.
7section 3543.2 provides, in relevant part:
The scope of representation shall be
limited to matters relating to wages,
hours of employment, and other terms and
conditions of employment. . .
17

Ultimately, the charging party here has the burden of
persuasion that a new term or condition of employment was
established, amounting to a policy change in violation of the
contractual terms, and that the case does not involve merely a
conflict over an alleged misapplication of the agreement.
Grant Joint Union High School District (2/26/82) PERB Decision
No. 196.
At the heart of this case is a dispute over whether the
District expressly negotiated the content or subject matter of
faculty meetings. 	Contradictory inferences can be drawn from
the record. For example, there is no direct evidence, in the
express terms of the agreement or from testimony about the
negotiating history, that the District negotiated a limitation
on the specific content of faculty meetings. Yet, the
negotiating history, and the plain meaning of the contract
article, indicate that the District did discuss the general
parameters of adjunct duties for identification purposes. 	On
balance, however, as explained more fully below, the evidence
substantially supports the District's claim, as Breon
testified, 	that it was negotiating only the overall impact of
these adjunct duties on hours of employment, and not the
precise content of the duties themselves.
Thus, the negotiating history demonstrates that the
employer's abandonment of its in-service training proposal was
cast in terms of a specified time allotment, and not a general
18

repudiation for all purposes of the concept of in-service
training. Breon's credited reservation about content and
subject matter is consistent with this view. Also, the
Federation makes no claim that in-service was precluded during
the regular working day, nor does it dispute the District's
understanding that in-service could be conducted on minimum
days. Hedlund, too, confessed a lack of knowledge about why
the employer dropped its demand. At most, the negotiating
history supports a conclusion, as the District concedes, that
the employer consciously yielded its proposal for separate
in-service training time and credit after regular hours.
Nevertheless, an argument implied in the District's
defense that all extra-duty contract time is interchangable
should be rejected. The specification of distinct adjunct
duties did carry with it an understanding of the parameters of
these duties. 	If this were not the case, as the union properly
argues, why were discrete duties identified? Hence, for
contract administration purposes, a reasonable restriction
would necessarily apply to the employer's ability to substitute
one type of assignment for another. But since this case, for
example, does not involve an unrealistic substitution of an
in-service session for a patently unrelated duty (e.g. club
sponsorship) , there is no need to rely on the District's
overbroad claim about the interchangable nature of, and
employer discretion over, all duties that were negotiated.
19

This being so, the question to be resolved is whether the
in-service sessions in October were reasonably related to the
traditional subject matter of faculty meetings and to the
employer's established prerogative to regulate the agenda and
content of those meetings.
Applying this analytical approach, it is concluded that
the District was not barred from using contractual faculty
meeting time for the type of in-service training session
conducted in October 1980. Even though the weight of the
evidence supports a finding that under established practice
faculty meetings and in-service training were distinct
activities, the nature of the duties were not so dissimilar or
inconsistent as to be mutually exclusive.
There is substantial, uncontradicted evidence that on
certain occasions, admittedly infrequently, faculty meeting
time was utilized to dispense information or to educate
teachers about subjects comparable to those subjects within the
scope of in-service training programs. These subjects included
student health, social and cultural issues, and even included
presentations about student violence, the principal focus of
the October meetings. In this regard, Hedlund, the union's
president and a key negotiator, conceded that if the format of
the October meeting had been different, that is, a committee
report on the issue of violence and vandalism, then the session
would have been more in keeping with established and acceptable
faculty meeting practices.
20

Additionally, it may be observed that the previous
distinction between faculty meetings and in-service training
under Policy No. 4197 was arguably modified by implication as a
result of the contract negotiations and the District's decision
to abandon a separate category for in-service training credit.
In past years, teachers could not receive credit for in-service
subjects presented during faculty meetings. For this reason,
if the 1979-1980 contract had provided instead for distinct
in-service credit, then the union's position about the improper
mixing of the two activities might be more persuasive because
the District's action, in light of the practice under Policy
No. 4197, would have been a clear contract violation, depriving
teachers of credit they otherwise would have earned. But since
the contract altered established practice, eliminating separate
in-service credit requirements, it is not unreasonable to
assume that the District could exercise its traditional faculty
meeting discretion by modifying the usual format to accommodate
other, compatible management needs.
In this regard, the evidence overwhelmingly establishes
that the agenda and content of faculty meetings had been within
the practical discretion of management. Faculty meetings, as
shown by cumulative testimony and sample agendas, ranged over a
variety of subjects related to internal site administration as
well as broader topics.
21

Given the context of the bargaining history and the
established practice, there is thus no persuasive evidence that
the District clearly and unmistakable waived in-service
sessions during contractually permitted faculty meetings. At
best, from the union's viewpoint, the contract language and
history is ambiguous, requiring the trier of fact to reconcile
the delineation of specific adjunct duties with the absence of
any express language precluding the exercise of District
discretion over particular meeting content. Under these
circumstances, the District's abandonment of the in-service
training proposal for separate time and credit cannot
justifiably be elevated to produce the more comprehensive
waiver and faculty meeting limitation argued by the union.
Compare Beacon Piece Dyeing and Finishing Company, Inc. (1958)
121 NLRB 953, 960 [42 LRRM 1489 (no implication of union waiver
by virtue of giving up negotiating demand) ; also see Gorman,
Labor Law (1976) at pp. 466-469, 472-475.
Indeed, in light of the dispute over interpretation of the
contract's faculty meeting clause that is the basis of this
case, recent Board precedent suggests that no violation of the
Act should be found because the evidence reveals a conflict
over contract application, and not a dispute over the clear
establishment of a new policy. Grant Joint Union High School
District, supra. 8
BAn alternative argument could be made that even if the
22

For the reasons set forth above, the charge against the
District should be dismissed. 9
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of
law, and the entire record in this case, the complaint against
the Salinas Union High School District is hereby DISMISSED.
Pursuant to California Administrative Code, title 8, part
III, section 32305, this Proposed Decision and Order shall
become final on 	May 3, 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 close of business (5:00 p.m. ) on May 3, 1982 	in
District was creating a new policy, there was no express
negotiating demand made by the Federation, thereby waiving its
right to charge a violation of the Act. San Mateo Community
College District, supra, at pp. 21-22. However, although this
possible defense was not thoroughly litigated, the limited
evidence on this point suggests that the District's program
plans were firm, the union's objection understood, and an
express demand would have been futile.
23
The final defense urged by the District, that the
content of faculty meetings is beyond the scope of
representation and within management's discretion, need not be
resolved given the sufficiency of the other grounds for
rejecting the charge.

order to be timely filed. See California Administrative Code,
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 12, 1982
24
BARRY WINOGRAD
Administrative Law Judge