Los Rios Community College District (PERB 0638E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS 	RIOS 	CLASSIFIED 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
vv..
LOS 	RIOS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case No. 	S-CE-1052
PERB Decision No. 	638
November 3, 	1987
Appearances; 	Kathy Felch, 	Attorney, 	for 	Los Rios 	Classified
Employees Association; 	Susanne M. 	Shelley, 	General Counsel, 	for
Los 	Rios 	Community 	College 	District.
Before Hesse, 	Chairperson; 	Craib, 	Shank, 	and Cordoba, 	Members.
DECISION
HESSE, 	Chairperson: 	This case 	is before 	the 	Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on appeal 	by
charging party of 	the Board agent's 	dismissal, 	attached hereto,
of 	its 	charge 	alleging 	that 	the 	Los 	Rios 	Community 	College
District violated section 3543.5(a), 	(b), 	and 	(c) of the
Educational 	Employment 	Relations Act 	(EERA).
We have 	reviewed 	the dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it 	as 	the 	Decision of 	the 	Board
itself, 	insofar 	as 	the Board agent 	concludes 	that 	the
allegations 	in 	the 	instant 	charge 	fail 	to 	state 	a prima 	facie
violation 	of 	EERA.1
1We 	note 	that 	Member 	Craib's 	dissenting 	opinion 	arises
from a 	fundamental 	misperception of 	this 	case 	and 	the Board's
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_____________ !

ORDER
The 	dismissal 	of 	the 	unfair practice 	charge 	in 	Case 	No.
S-CE-1052 	is hereby 	AFFIRMED.
Members 	Shank 	and 	Cordoba 	joined 	in 	this 	Decision.
Member 	Craib's 	dissent begins 	on page 	3.
longstanding 	adherence 	to 	the practice 	of 	dismissing 	charges
which 	fail 	to 	state 	a prima 	facie 	case. 	Our dissenting
colleague 	simply misreads 	the basis 	for 	the 	General 	Counsel's
dismissal 	of 	the 	instant 	charge. 	He 	argues 	that 	the 	General
Counsel 	erringly 	dismissed 	this 	charge 	by 	concluding 	that 	the
notice 	provision 	was 	"reasonable" 	— 	thus 	reaching 	the 	merits
of 	the 	case. 	However, 	the 	General 	Counsel's 	dismissal 	letter
simply 	concluded 	that 	charging party 	failed 	to plead 	facts 	from
which 	the 	legal 	conclusion 	establishing 	a past 	practice 	could
be 	drawn. 	Absent 	charging party's 	allegation of 	facts
supporting 	a past practice 	or 	"policy," 	there 	is 	nothing 	upon
which 	a 	complaint 	alleging 	a 	unilateral 	change may 	issue.
Furthermore, 	we 	find 	our 	dissenting 	colleague's 	contention
that 	PERB Regulations 	32615(a)(5) 	and 	32620(b)(5) 	are analogous
to 	California 	Code 	of 	Civil 	Procedure 	section 425.10 	most
interesting, 	but 	misplaced. 	We 	first 	question the 	wisdom of
comparing 	these 	standards. 	There 	is 	a 	critical procedural
difference 	between 	filing 	a 	civil 	lawsuit 	and 	PERB's 	issuance
of 	a 	complaint. 	Even when a plaintiff 	on his 	or her 	own
initiative 	files 	a 	lawsuit, 	such pleading must 	conform to
standards 	of 	factual 	sufficiency to 	support 	the 	cause 	of 	action
pled. 	Before 	PERB, 	the 	General 	Counsel 	initially decides
whether 	a 	complaint 	shall 	issue. 	The 	authority to 	issue 	a
complaint 	is 	limited 	to those 	instances 	where 	the 	charge, 	on
its 	face, 	states 	facts 	sufficient 	to demonstrate 	a prima 	facie
case. 	(PERB Reg. 	32620(b)(5) 	and 	(6).)
22

Craib, 	Member, 	dissenting: 	I have 	exercised my right 	to
join 	this panel 	because 	I have 	serious 	misgivings 	about 	the
majority's 	affirmance of the dismissal. 	In my view, 	the
majority has 	erred both 	in assessing 	the 	factual pleadings 	in
the 	instant 	case 	and 	in 	imposing a pleading 	requirement 	more
rigorous 	than 	that 	demanded by 	the 	courts 	of 	this 	state.
The 	charge 	springs 	from 	the 	unilateral 	imposition by 	the
director 	of 	the 	District's 	Public 	Safety 	Center 	of 	a
requirement 	that 	mandates 	employees 	to present 	a written
request 	for 	vacation 	leave 	a minimum of 	three months 	in 	advance
of 	the 	requested 	leave. 	Allegedly, 	prior 	to enactment 	of 	this
policy, 	the past 	practice 	with regard 	to vacation 	leave
requests 	was 	to require 	employees 	to 	submit 	such a 	request 	a
reasonable 	amount 	of 	time 	prior 	to 	the 	date 	of 	the 	requested
leave.
PERB 	regulations 	require 	that 	an 	unfair 	practice 	charge
contain 	a 	clear 	and 	concise 	statement 	of 	the 	facts 	and 	conduct
alleged 	to constitute 	an 	unfair 	practice. 	PERB 	Regulation
32615(a)(5). 	The Board agent 	assigned 	to process 	the charge
shall 	dismiss 	the 	charge 	if 	the 	charge 	or 	the 	evidence 	is
insufficient 	to 	state a prima 	facie 	case. 	PERB 	Regulation
32620(b)(5). 	Further, 	Board precedent 	instructs that the
factual 	allegations 	contained 	in 	the 	charge 	are 	considered 	true
for purposes 	of 	stating a prima 	facie 	case. 	San Juan 	Unified
33

School District 	(1977) 	EERB Decision No. 	1 2 1 ; 	Cupertino Union
Elementary School 	District 	(1986) 	PERB Decision No. 	572.
In 	this 	case, 	the 	charging party has 	satisfied 	the 	Board's
regulations. 	The 	charge 	clearly and 	concisely 	states 	that 	the
director 	replaced 	the 	requirement 	of 	reasonable 	advance 	notice
with 	a hard 	and 	fast 	rule 	requiring 	three 	months 	advance
notice. 	There 	is 	no question 	in my mind 	that 	these 	facts 	are
sufficient 	to 	establish 	a 	prima 	facie 	case 	that 	the 	three-month
rule 	unilaterally 	changed 	the 	past 	practice 	requiring
reasonable 	advance 	notice of vacation 	leave 	requests. 	The
Board 	agent 	erred 	by weighing 	the 	evidence 	and 	reaching 	the
factual 	conclusion 	that 	the 	three-month 	rule 	was 	not
unreasonable 	and 	thus 	not 	a change. 	Clearly, 	whether 	or 	not
this 	unilaterally 	imposed 	notice 	requirement 	comports 	with 	the
past 	practice 	is 	a 	factual 	determination 	for 	the 	trier 	of 	fact
to 	decide 	after 	hearing 	from 	all 	witnesses 	and 	reviewing 	all
documentary evidence. 	It 	is, 	in my opinion, 	inappropriate for
the 	Board 	agent 	to assess 	the merits 	of 	the 	charge during 	the
investigatory process.
By affirming 	the 	dismissal, 	the majority 	is 	requiring 	the
charging 	party 	to go beyond 	the 	elements 	of 	a prima 	facie 	case
and 	is demanding that, 	at this 	juncture, 	it come 	forward with
evidence 	sufficient 	to convince 	the 	Board 	agent 	that 	the 	three-
month 	rule 	is 	unreasonable. 	The variables 	cited by the 	Board
1Prior 	to January 1, 	1978, 	PERB was 	known as 	the
Educational 	Employment 	Relations 	Board.
44

agent 	such 	as 	department 	size 	and peak 	work periods 	may well 	be
among 	the 	factors 	relied 	on by the 	trier 	of 	fact 	in 	reaching
the 	final 	determination as 	to 	the 	reasonableness 	of 	the 	new
advance-request 	rule. 	However, 	considering 	those 	items at the
pleading 	stage 	and 	requiring charging party to, 	in effect,
- -
refute 	them 	to 	the 	satisfaction 	of 	the 	Board 	agent processing
the 	charge 	is both 	unfair 	and 	unprecedented.
In 	concluding 	that 	the 	charging party has 	failed 	to provide
sufficient 	factual 	allegations 	to establish a prima 	facie 	case,
my 	colleagues 	apparently 	view 	the 	allegation 	that 	the
three-month 	rule 	is 	unreasonable as 	a conclusion of 	law. 	This
is 	in error. 	It 	is not 	the alleged unreasonableness of 	the new
vacation 	leave 	rule 	itself 	that 	would 	constitute 	a 	violation of
the 	statute. 	Rather, 	the 	imposition of 	the rule 	is a violation
if 	it 	constitutes a unilateral change. 	The charging party's
claim 	that 	the 	new rule 	is 	unreasonable 	is 	a 	factual 	assertion
that 	cannot be 	decided without 	consideration of 	evidence
regarding 	workloads, 	staffing 	levels 	and past 	application of
the 	leave 	policy.2 Under 	PERB precedent, 	allegations 	of 	fact
must be 	accepted as 	true 	for purposes 	of 	this 	appeal 	of 	the
dismissal. 	To 	require that more 	factual 	allegations be
included 	in 	the 	charge 	would be 	to demand 	evidence 	in 	support
of 	the 	factual 	claim of 	unreasonableness. 	The appropriate
2It 	is 	the majority's 	failure 	to grasp 	the 	distinction
between 	a 	conclusion of 	law and 	an 	ultimate 	fact 	that 	has
caused 	it 	to view the 	case 	with 	a 	jaundiced 	eye 	(or 	as 	the
majority might 	say, 	has 	created a 	fundamental 	misperception of
the 	case).
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forum 	for 	the production of 	evidence 	is, 	of 	course, 	the
evidentiary 	hearing.
Leaving 	aside 	the 	distinction between 	conclusions 	of 	law
and 	allegations 	of 	ultimate 	fact, 	the 	Board's 	decision 	today
departs 	from 	case 	law 	under 	a 	similar 	statute 	regarding
pleading 	requirements. 	The 	California 	Code of 	Civil 	Procedure
imposes 	a pleading 	requirement 	on civil 	complainants 	similar 	to
that 	imposed by 	the 	Board's 	regulation. 	See 	CCP 	section
425.10. 	As 	interpreted by the courts, 	the 	critical question 	in
judging 	the 	sufficiency of pleadings 	under 	that 	statute 	is
whether 	the pleadings 	as 	a whole 	apprise 	the plaintiff's
adversary of 	the 	factual 	basis 	of 	the 	claim upon which 	relief
is 	sought. 	Perkins 	v. 	Superior 	Court 	(1981) 	117 	Cal.App.3d 	1.
Particularity of 	facts 	depends 	on 	the 	extent 	to which 	the
defendant 	needs 	detailed 	information. 	Semole v. 	Sansoucie
(1972) 	28 	Cal.App.3d 	714. 	Specifically, 	the 	California courts
have 	observed 	that 	the 	sufficiency of 	the pleadings 	is 	a
question of 	fairness 	and 	it 	will permit 	the plaintiff 	to go
forward 	to trial 	if 	the 	defendant 	is 	given 	sufficient 	notice 	to
permit 	preparation of 	the 	case. 	Metzenbaum v. 	Metzenbaum
(1948) 	86 	Cal.App.2d 	750. 	It 	is not 	necessary to particularize
matters 	that 	are 	presumptively within 	the 	knowledge 	of 	the
defendant. 	Wise v. 	Southern Pacific 	Co. 	(1963) 	223 Cal.App.2d
50.
In 	this 	case, 	the 	respondent 	is 	well 	aware 	that 	the 	factual
basis 	of 	the 	charge 	is 	the 	imposition of 	the 	three-month notice
66

rule. 	There 	is no 	suggestion 	that 	the 	respondent's 	ability 	to
prepare 	is 	in any way affected by the 	concise 	nature of 	the
pleadings. 	Based 	on 	the 	information 	given 	the 	Board 	agent
investigating 	this 	charge, 	the 	information 	likely to dispute
the 	claim 	that 	the 	new rule 	is 	unreasonable 	appears 	to be
readily available 	to the 	respondent. 	There 	is 	no question 	that
this 	pleading, 	dismissed 	as an unfair 	practice 	charge 	under
EERA, 	would be 	sufficient 	to permit 	the plaintiff 	in a civil
case 	to proceed 	to 	litigate the merits 	of 	the claim. 	I 	find
this 	an 	ironic 	result 	that 	ignores 	the purpose 	served by
pleading 	requirements 	and, 	by denying 	charging parties 	a 	fair
hearing 	of 	their 	claims, 	undermines 	the 	very purpose of 	the
EERA. 	If 	the 	Board 	reads 	the 	existing 	regulations 	to require
the 	charging 	party 	to 	include 	allegations 	amounting 	to 	an 	offer
of proof as 	to how 	it 	intends 	to establish 	its 	claim, 	the Board
should 	clearly 	enunciate 	that 	interpretation. 	Parties
practicing 	before 	this 	agency 	are 	entitled 	to be put 	on 	notice
of 	such 	a requirement. 	Otherwise, 	parties will 	continue 	to be
left 	with 	the 	treacherous 	task 	of 	dealing 	with 	an agency which
purports 	to apply one 	set 	of pleading 	requirements, 	but 	in 	fact
applies 	another.
7
7

STATE Of CALIFORNIA 	GEORGE 	DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
February 13, 	1987
Ms. Kathy Felch, Esq.
915-21st 	Street
Sacramento, 	CA 95814
SUBJECT: 	Los 	Rios Classified Employees Association v. 	Los 	Rios
Community College District, 	S-CE-1052.
I 	indicated 	to you 	in my attached 	letter 	dated 	February 4, 	1987
that 	the 	above-referenced 	charge 	did 	not 	state 	a 	prima 	facie
case. 	You were 	advised 	that 	if 	there were 	any 	factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended the charge 	to 	state 	a prima 	facie case, 	or withdrew it
prior to February 12, 	1987, 	it would be dismissed.
On February 13, 	1987, 	a 	first 	amended unfair 	practice charge
was 	filed with this office. 	The 	amended charge 	fails 	to 	raise
any 	information 	not 	previously 	considered 	during 	the
investigation of 	the original 	charge. 	The only material
addition to 	the 	amended charge 	is 	paragraph 	four which 	states:
This 	new requirement 	for 	a
three-months-in-advance 	written 	notice
changed the past 	practice 	of 	the District 	in
that 	it 	requires 	that vacations 	requests
must 	be 	submitted 	an unreasonable 	amount 	of
time prior 	to 	the 	requested 	leave 	time.
This 	paragraph 	is 	a mere conclusion and does 	present 	any
additional 	evidence on which 	to 	establish 	a 	prima 	facie
violation. 	As 	stated in the 	letter of February 4, 	1987, 	the
alleged 	change 	in practice 	in 	the 	Public 	Safety Department 	did
not 	amount 	to 	a 	change 	in policy under 	the Act 	in that 	the
various 	departments 	of 	the District 	have had 	latitude 	in
establishing what 	is 	a 	"reasonable" 	time 	for 	employees 	to
submit 	vacation 	requests.
Accordingly, 	I 	am dismissing 	the charge 	based 	on the 	facts 	and
reasons 	contained 	in my February 4, 	1987 	letter, 	a 	copy of
which 	is 	attached.

Ms. 	Kathy Felch
February 13, 	1987
Page 	2
Right 	to Appeal
Pursuant 	to Public Employment 	Relations 	Board 	regulations, 	you
may obtain 	a 	review of 	this 	dismissal 	of 	the charge by 	filing
an 	appeal 	to 	the 	Board 	itself within 	twenty 	(20) 	calendar 	days
after 	service 	of 	this 	dismissal 	(California Administrative
Code, 	title 8, 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five 	copies 	of 	such 	appeal must 	be 	actually
received 	by the Board 	itself 	before 	the close 	of 	business
(5:00 	p.m.) 	or 	sent by telegraph, 	certified or Express United
States 	mail 	postmarked 	no 	later 	than 	the 	last 	date 	set 	for
filing 	(section 32135). 	Code of Civil Procedure 	section 	1013
shall 	apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a
complaint, 	any other 	party may 	file with 	the 	Board 	an original
and 	five 	copies 	of 	a 	statement 	in opposition within 	twenty
calendar 	days 	following 	the date 	of 	service 	of 	the 	appeal
(section 32635(b)).
Service
All 	documents 	authorized 	to 	be 	filed 	herein must 	also 	be
"served" 	upon all 	parties 	to 	the proceeding, 	and 	a 	"proof 	of
service" 	must 	accompany each copy of 	a document 	served upon 	a
party or 	filed with 	the Board 	itself. 	(See 	section 	32140 	for
the 	required contents 	and 	a 	sample 	form.) 	The document will 	be
considered 	properly 	"served" 	when 	personally 	delivered 	or
deposited 	in 	the 	first-class 	mail 	postage 	paid 	and 	properly
addressed.
Extension 	of 	Time
A 	request 	for 	an 	extension of 	time 	in which 	to 	file 	a 	document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the
Board 	at 	the 	previously noted 	address. 	A 	request 	for 	an
extension must 	be 	filed 	at 	least 	three 	calendar 	days 	before 	the
expiration of 	the 	time 	required 	for 	filing 	the document. 	The
request must 	indicate good cause 	for 	and, 	if 	known, 	the
position 	of 	each 	other 	party 	regarding 	the 	extension, 	and 	shall
be 	accompanied 	by proof 	of 	service 	of 	the 	request 	upon each
party 	(section 32132).

Ms. 	Kathy Felch
February 13, 	1987
Page 3
Final 	Date
If 	no 	appeal 	is 	filed within 	the 	specified 	time
limits, 	the dismissal will 	become 	final 	when 	the 	time
limits 	have expired.
Sincerely,
JEFFREY 	SLOAN
General 	Counsel
By
Michael 	Terris
Staff 	Attorney
cc: 	Attachment
7882d

0.--	STATE 	Of 	CALIFORNIA 	GEORGE 	DEUKMEJIAN, Govenor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 1 8 * Street
Sacramento. CA 	95814-4174
(916) 323-3068
February 4, 	1987
Ms. 	Kathy Felch, 	Esq.
9l5-21st 	Street
Sacramento, 	CA 95814
SUBJECT: 	Los 	Rios 	Classified Employees Association 	v. 	Los 	Rios
Community College 	District, 	S-CE-1052.
Dear Ms. 	Felch:
On or 	about December 	15, 	1986, 	the Los 	Rios Classified
Employees 	Association 	(LRCEA) 	filed 	the 	above-captioned 	charge
alleging 	that 	the 	Los 	Rios 	Community College 	District
(District) 	violated section 3543.5(a), 	(b), 	and 	(c) of the
Educational 	Employment 	Relations Act 	(EERA) 	by 	failing 	to
negotiate 	a 	change 	in 	the 	District's 	procedure 	for 	requesting
vacation 	leave. 	The 	investigation 	revealed 	the 	following
facts. 	The LRCEA is 	the exclusive 	representative 	of 	white
collar 	classified 	employees 	in 	the 	District 	and has 	been 	a
party with 	the 	District 	to 	successive 	collective bargaining
agreements. 	The 	most 	recent 	agreement 	was 	ratified by 	the
parties 	shortly after 	the 	instant 	charge 	was 	filed. 	The 	prior
agreement 	expired on June 	30, 	1986. 	At 	the 	time of 	the 	alleged
infraction, 	on or about November 	21, 	1986, 	no collective
bargaining 	agreement was 	in effect. 	The 	expired agreement did
not 	provide 	for 	binding 	arbitration 	and 	the 	LRCEA has 	never
filed 	a 	grievance 	on 	the 	facts 	alleged 	in 	the 	instant 	unfair
practice 	charge.
The 	recently 	expired agreement did 	not 	specifically 	provide
for 	a procedure 	for 	requesting 	vacation 	leaves. 	Article 	8,
section 	16.4.1 	merely 	stated:
Vacations 	must 	be 	approved 	in 	advance 	by 	the
District. 	If 	the 	vacation requests 	of 	two
or 	more 	employees 	in 	the 	same 	operating 	unit
. 	. 	. 	are 	in conflict then the decision will
be 	made 	by 	the 	supervisor 	in 	the 	best
interest 	of 	the 	District's 	needs. 	All 	other
things 	being 	equal 	the 	employee 	with 	the
great(er)(est) 	seniority 	in class 	will be
given 	preference.

Ms. 	Kathy Felch
February 	4, 	1987
Page 2
The 	LRCEA 	alleges 	that 	the 	District 	has 	had 	a
long-established 	past 	practice 	that 	employees 	need 	only 	submit
their 	vacation 	requests 	a 	"reasonable 	time" 	prior 	to 	the 	dates
for which 	vacations are requested. 	It 	asserts, 	however, 	that
on or about November 	21, 	1986, 	the District, 	through Les Clark,
dean 	of 	the 	Public 	Safety Department 	changed 	the
above-described 	past 	practice 	by 	requiring 	the 	five 	classified
employees 	in 	the 	department 	to 	make 	their 	vacation 	requests
known 	at 	least 	three 	months 	prior 	to 	the 	requested 	dates 	and
that 	requests 	made 	with 	less 	notice would 	be 	denied. 	The 	LRCEA
asserts 	that 	it 	was 	offered neither 	notice 	of 	the 	change 	nor 	an
opportunity 	to 	bargain over 	it 	prior 	to 	its 	implementation.
The 	District 	asserts 	that 	there 	has 	been 	no 	change 	in
policy. 	While 	acknowledging 	that 	the 	standard 	in 	the 	past 	has
been 	that 	requests 	must 	be made 	a 	reasonable 	time 	prior 	to 	the
requested dates, 	it 	insists that 	reasonable 	time has 	been
defined 	in 	a 	variety of ways 	by 	different 	departments 	within
the District. 	For 	example, 	the 	financial 	aid 	office 	requires
that 	vacation 	requests 	for 	the 	current 	calendar 	year 	be
submitted by February 7, 	1987. 	Beyond specific 	examples, 	the
District 	contends 	that 	reasonable 	time, 	as 	defined by
individual 	departments, 	is by necessity going 	to 	vary depending
upon 	the 	department, 	the number 	of 	employees 	in 	that
department, 	and 	the 	"peak work 	periods" 	of 	the 	department. 	It
maintains 	that 	the 	Public 	Safety 	department 	has 	reasonably
determined 	that 	its 	peak 	work 	period 	is 	the 	academic 	year 	and
that 	three 	months' 	advance notice 	is 	reasonable 	under 	the
circumstances. 	It 	finally asserts 	that 	the 	LRCEA's 	claim that
vacations 	not 	made 	three 	months' 	in 	advance will 	be 	forfeited
is 	not 	true 	and 	contends 	that 	no 	employee 	has 	had 	a 	vacation
disallowed 	during 	the 	last 	six 	months.
The 	LRCEA 	counters 	that while 	this 	appears 	true 	on 	the
surface, 	the 	Dean 	verbally scolded 	an 	employee 	on 	or 	about 	late
October 	1986 	for 	making 	a 	late 	vacation 	request 	before 	stating
"OK, 	go 	ahead 	and 	take 	it." 	The 	District 	denies 	these
allegations.
Discussion
Based 	on 	the 	foregoing 	facts, 	the 	amended 	charge 	does 	not
state 	a 	prima 	facie 	violation 	of 	the 	EERA 	in 	that 	it 	has 	failed
to 	demonstrate 	that 	the 	District 	has 	made 	a 	change 	in
established 	past 	practice. 	In 	determining 	whether 	a 	party 	has

violated 	section 	3543.5(c) 	of 	EERA by 	committing 	a 	unilateral
change, 	the 	Board 	considers whether 	the 	employer 	has
implemented 	a 	change 	in 	policy 	concerning 	a 	matter 	within 	the
scope of 	representation, 	and, 	if so, 	whether 	the employer
notified 	and 	offered 	the 	exclusive 	representative 	an
opportunity 	to 	bargain 	over 	the 	change 	prior 	to 	its
implementation. 	Walnut 	Valley 	Unified 	school 	District 	(1981)
PERB Decision 	No. 	160; 	Grant Joint 	Union 	School 	District 	(1982)
PERB Decision No. 	196.
Ms. 	Kathy Felch
February 	4, 	1987
Page 3
In 	the 	instant 	case, 	the 	evidence 	presented 	does 	not
support 	the 	allegation 	that 	the 	District's 	action 	amounted 	to 	a
change 	in policy. 	The 	past 	practice 	in 	the 	District 	has
afforded 	the 	different 	departments 	flexibility 	in 	determining
what 	is 	a 	reasonable 	time 	for 	employees 	to 	submit 	vacation
requests. 	The 	oral 	announcement 	by the 	Dean 	of 	the 	Safety
Department 	on or about November 	21, 	1986, 	appears 	to 	fall
within 	the 	previously established parameters 	for 	what 	is 	a
reasonable 	time 	in which 	to make 	requests. 	Although 	there 	are
disputed 	facts 	surrounding 	the 	employee's 	request 	for 	vacation
in 	late 	October, 	having 	concluded 	that 	the 	Safety Department's
announced policy 	is 	not 	a 	change 	from past 	practice, 	it 	is
unnecessary 	to 	resolve 	the 	dispute.
For 	these 	reasons, 	the 	charge 	as presently written 	does 	not
state 	a 	prima 	facie case. 	If 	you 	feel 	that 	there 	are 	any
factual 	inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts
which 	would 	correct 	the 	deficiencies 	explained 	above, 	please
amend 	the 	charge 	accordingly. 	The 	amended 	charge 	should 	be
prepared 	on 	a 	standard 	PERB 	unfair 	practice 	charge 	form 	clearly
labeled 	First Amended Charge, 	contain 	all 	the 	facts 	and
allegations 	you wish 	to make, 	and be 	signed 	under 	penalty of
perjury 	by 	the 	charging party. 	The 	amended 	charge 	must 	be
served 	on 	the 	respondent 	and 	the 	original 	proof 	of 	service 	must
be 	filed with. PERB. 	If 	I 	do not 	receive 	an 	amended 	charge 	or
withdrawal 	from you before 	February 12, 	1987, 	I 	shall 	dismiss
your 	charge. 	If 	you 	have 	any 	questions 	on how 	to proceed,
please call 	me at 	(916) 	323-8015.
Sincerely^
Michael 	Terris
Staff 	Attorney
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