Saddleback Community College District (PERB 0433E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
SADDLEBACK 	COMMUNITY 	COLLEGE 	DISTRICT
FACULTY ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
SADDLEBACK COMMUNITY COLLEGE DISTRICT,
Respondent.
)
)
)
) 	Case No. 	LA-CE-1904
PERB 	Decision No. 	433
November 16, 	1984
)
)
)
)
)
)
Appearances: 	A. 	Eugene Huguenin, 	Jr., 	Attorney for Saddleback
Community College 	District Faculty Association, 	CTA/NEA;
Biddle & Hamilton by Richard L. 	Hamilton, Attorney, 	for
Saddleback 	Community 	College 	District.
Before Hesse, 	Chairperson; 	Jaeger and Burt, Members.
DECISION
JAEGER, 	Member: 	The Saddleback Community College District
Faculty Association 	(SFA) 	appeals 	the dismissal 	of 	that portion
of 	its 	unfair 	practice charge 	alleging 	that 	the 	Saddleback
Community 	College 	District 	unilaterally 	changed 	an 	established
policy 	permitting 	faculty members 	to 	schedule 	classes 	on 	fewer
than 	five days per 	week.
DISCUSSION
The 	issue presented 	to 	this Board 	in cases 	involving 	an
appeal 	from a dismissal 	of 	a charge 	and concurrent 	refusal 	to
issue 	a complaint 	is whether 	the charge 	states facts which, 	if
true, 	establish a prima 	facie case 	of 	some violation of
(

law.1 A charge 	will 	be dismissed where 	the 	facts 	are
insufficient 	to 	support 	the 	alleged 	violation, 	or 	fail 	to point
to any statutory breach. 	But, 	it 	is not the function of 	the
Board 	agent 	investigating 	the charge 	to 	judge 	the merits 	of 	the
charging 	party's dispute. 	It follows 	that 	the 	agent 	is 	not
entitled 	to 	resolve disputed 	facts. 	These are 	to be 	resolved
in other 	proceedings 	following 	issuance 	of 	a complaint.
Here, 	the charge 	alleges 	that 	an established practice 	that
permitted 	teachers 	to 	schedule 	their 	classes 	on 	fewer 	than 	five
days 	per 	week 	was 	unilaterally 	altered 	by 	the 	District. 	The
investigating 	regional 	attorney 	reviewed 	the parties' 	1981-83
agreement, 	including 	a 	side 	letter 	executed 	on or 	about
October 	1, 	1981, 	and concluded that the 	teachers' 	total number
of 	required 	working 	hours 	was 	not 	affected 	by 	the 	District's
action, 	and 	that despite the previous permissive practice, 	the
District had a contractual 	right to 	set class 	schedules. 	In
support 	of his conclusions, 	the 	regional 	attorney cited
Marysville 	Joint Unified 	School District 	(5/27/83) 	PERB
Decision No. 	314.
SFA argues 	that 	there 	is 	no provision 	in the 	1981-83
agreement 	or 	the 	side 	letter 	that gives 	the District 	the 	right
to schedule classes. 	Therefore, 	SFA argues, 	the discretionary
1Inn 	this case, 	the Educational Employment Relations Act,
codified 	at Government Code section 3540 et. 	seq., 	and
particularly sections 3543.5(a), 	(b) 	and 	(c) 	thereof.
N
H
lr
2

policy 	that 	existed 	prior 	to 	1983 	constituted 	an 	established
past practice 	which 	the District 	unlawfully 	altered. 	In
support 	of 	its position, 	SFA offers 	its 	interpretation of 	the
combined 	agreements.
It 	is 	not 	necessary 	to accept 	SFA's 	interpretation 	to 	reach
the 	conclusion 	that 	the 	charge 	should 	not 	have 	been dismissed.
Nor 	is 	it 	necessary 	to decide here 	whether 	the 	scheduling 	of
classes 	is, 	in 	itself, 	a negotiable 	subject. 	Certainly "hours
of 	employment" 	is negotiable. 	That 	term 	is not 	limited 	to 	the
total 	number 	of working hours 	required of 	employees, 	as 	the
regional 	attorney 	seems 	to 	imply. 	It 	includes 	what days 	of 	the
week 	and 	what 	hours 	of 	the day are 	to be worked.
The 	facts 	alleged 	here 	demonstrate 	that 	the 	discretionary
policy permitted 	classes 	to 	be 	scheduled 	so 	that 	teachers 	"did
not have 	to be on campus five days a week." 	In 	1983, 	during
negotiations, 	the District 	issued 	a 	requirement 	that 	teachers
schedule classes on all five days. 	Thus, 	it 	is clear 	that a
unilateral change 	of 	a negotiable policy 	is 	the gravamen of 	the
charge.
The 	regional 	attorney misreads Marysville. 	First, 	the
facts 	in that case d 	-	
o not 	reveal, 	as he believes, 	that the past
practice was 	"contrary" 	to the parties1 contract. 	The 	longer
lunch 	period 	instituted 	by 	the Marysville District 	was
permitted 	by 	the 	contract 	which 	provided 	only 	that 	lunch
periods 	should 	not be 	less than 	30 minutes. 	Second, 	the
W
	3

Marysville 	contract 	in 	dispute 	specifically 	mentioned 	lunch
periods 	and 	specifically 	set 	forth 	the minimum 	time 	allowance
indicated.
Here, 	we 	find 	no 	specific contract 	reference 	to 	the days
and hours when classes are 	to be 	scheduled. 	The 	regional
attorney 	extrapolated 	a 	contrary 	conclusion 	from 	what 	he
described 	as 	an 	"elaborate 	scheme 	regarding 	working 	hours,
class 	size 	and 	maximum workload."
The 	District 	points 	to 	no clear 	contract 	authorization 	for
its change 	in 	the discretionary policy. 	Much 	like 	the 	regional
attorney, 	the District 	surveys 	the contract provisions 	and
arrives 	at 	its 	interpretation 	of 	the contract 	to 	justify 	its
action. 	By 	its own words, 	it 	"sums 	up" 	the various provisions
cited 	and 	asserts 	that 	the 	"above 	analysis 	essentially 	disposes
of 	the Association's 	alternative 	contentions 	regarding
ambiguity." 	(Emphasis 	supplied.)
PERB's 	ultimate 	interpretation 	of 	the Marysville 	contract
followed 	issuance 	of 	a complaint, 	a 	full-scale 	evidentiary
hearing 	below, 	and consideration 	of 	exceptions 	and 	arguments 	on
appeal. 	Although 	we do not 	suggest 	that 	a hearing 	will 	always
be 	required 	where 	the 	dispute 	involves 	an 	existing 	contract,
Marysville 	also 	informs 	us 	that where 	there 	is 	a 	legitimate
dispute 	over 	the meaning 	of 	that contract, 	the parties must be
afforded 	the 	opportunity 	to 	offer 	evidence 	in 	support 	of 	their
respective contentions. 	We cannot 	find 	in 	the contract
4

provisions 	comprising 	that 	"elaborate 	scheme" 	so clear 	and
unambiguous 	a meaning 	as 	to 	justify excepting 	this 	case 	from
the 	foregoing 	rule.
In 	summary, 	the Board concludes 	that 	the charge 	states
facts which, 	if true, 	tend to support the claim that the
District 	unilaterally 	and 	unlawfully changed 	a 	negotiable
policy.2
ORDER
Based 	on 	the 	record, 	the 	Public Employment Relations Board
ORDERS 	that 	the dismissal 	of 	that portion 	of 	the 	unfair
practice 	charge 	filed 	by 	the 	Saddleback 	Community 	College
District Faculty Association, 	CTA/NEA against 	the Saddleback
Community 	College 	District 	alleging 	that 	the 	District
unilaterally 	and 	unlawfully 	altered 	an 	existing 	policy
permitting 	teachers 	to 	schedule 	classes 	on 	fewer 	than 	five-days
per 	week 	is REVERSED 	and 	further ORDERS 	that 	the matter 	be
remanded 	to 	the General Counsel 	for 	issuance 	of 	a complaint 	and
appropriate 	further 	proceedings.
Chairperson Hesse 	and Member 	Burt 	joined 	in 	this 	Decision.
2See 	San 	Juan Unified 	School District 	(3/31/82) 	PERB
Decision 	No. 	204.
55