El Dorado County Office of Education (PERB 0759E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EL DORADO COUNTY OFFICE 	OF
EDUCATION,
Charging 	Party,
v.
EL 	DORADO COUNTY 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Respondent.
Case No. 	S-CO-197
PERB Decision No. 	759
September 13, 	1989
Appearances: 	Girard & Griffin by Allen R. 	Vinson, 	Attorney, 	for
El Dorado County Office of Education; 	California Teachers
Association by Ramon E. 	Romero, 	Attorney, 	for El Dorado County
Teachers Association, 	CTA/NEA.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	Shank and Camilli,
Members.
DECISION AND 	ORDER
This 	case 	is before the Public 	Employment Relations 	Board
(Board) 	on appeal by the 	charging party of 	a Board 	agent's
dismissal 	(attached hereto) 	of 	its 	charge that the respondent
violated 	section 	3543.6 	of 	the Educational 	Employment 	Relations
Act 	(Gov. 	Code sec. 	3540 et seq.). 	We have reviewed the
dismissal and, 	finding it 	free of prejudicial error, 	adopt 	it as
the 	Decision of the Board 	itself. l
1We note that, 	in the attached dismissal 	letter, 	the Board
agent 	inadvertently 	stated 	that 	the 	Board 	"does 	not 	recognize"
unilateral 	changes 	committed by 	the 	exclusive 	representative 	as
an unfair practice. 	As 	she 	correctly 	stated 	in the 	attached
warning letter, 	the Board has 	not yet addressed that 	issue
directly. 	Nevertheless, 	the Board agent correctly determined
that, 	in any event, 	the allegations are insufficient to 	state a
prima 	facie case.
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The unfair practice charge 	in Case No. 	S-CO-197 	is 	hereby
DISMISSED WITHOUT LEAVE TO AMEND.
By the 	BOARD
N
	2

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
[Attachment 	2 	of Dismissal Letter
not 	included]
April 	28, 	1989
Allen R. 	Vinson
Girard 	& 	Griffin
1535 	Treat 	Blvd.
Walnut Creek, 	CA 	94598
Ramon E. 	Romero
California 	Teachers 	Assoc.
1705 	Murchison 	Drive
Burlingame, 	CA 	94010
Re: 	El 	Dorado County Office of 	Education v. 	El 	Dorado County
Teachers Association. 	CTA/NEA.
Unfair 	Practice 	Charge 	No: 	S-CO-197
DISMISSAL 	LETTER
Dear Mr. 	Vinson:
The 	above-referenced 	charge 	alleges 	that 	the 	El 	Dorado 	County
Teachers 	Association 	(Association), 	attempted 	to 	change 	the
meaning 	of 	the parties' 	collective 	bargaining 	agreement without
first 	meeting 	and 	negotiating 	in good 	faith. 	This 	was
accomplished 	by 	the 	Association's 	filing 	of 	an 	Unfair 	Practice
Charge 	against 	the 	El 	Dorado County Office 	of 	Education 	(County).
The 	County 	alleges 	that 	the Association's 	conduct 	violated
section 	3543.6(c) 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA).
I 	indicated 	to you 	in my 	letter dated March 	15, 	1989 	(Attachment
1] 	that 	the 	above-referenced 	charge 	did 	not 	state 	a prima 	facie
case, 	and that 	unless 	you amended the 	charge 	to 	state 	a prima
facie 	case, 	or withdrew it prior to March 	29, 	1989, 	the charge
would 	be 	dismissed.
On March 	28, 	1989, 	you filed a 	First Amended Charge. 	It adds
some 	new 	facts 	concerning each 	of 	the Association's 	alleged
unilateral 	changes 	of policy. 	In addition, 	your amended charge
adds 	another 	theory of 	an EERA violation. 	The 	County 	alleges
that 	the Association's 	conduct, 	in addition 	to 	being 	a 	unilateral
change, 	"constitutes 	a general 	violation of 	EERA 	[which] 	should
be 	remedied 	by 	PERB pursuant 	to Compton. 	as 	it 	interferes 	with
- -	and 	is 	disruptive 	to the 	educational 	process." 	On March 	28,
1989, 	you mailed 	to PERB a 	letter 	citing 	federal 	authority 	in
support of the First Amended Charge. 	[Attachment 2 ] .

The charge, 	as 	amended, 	still 	fails 	to 	state a prima 	facie case
for the reasons 	stated in my March 	15, 	1989 	letter, 	and for the
reasons 	set 	forth below.
Unilateral 	Change
As was 	indicated 	in my March 	15, 	1989 	letter, 	PERB does 	not
recognize 	unilateral 	changes 	committed by 	the 	exclusive
representative 	as an unfair practice. 	In your letter of March 	28,
1989, 	you rely on three private 	sector cases 	to 	show that 	the
National 	Labor Relations 	Board 	(NLRB), 	and federal courts will
find under appropriate 	circumstances 	that a 	union has 	failed 	to
bargain 	in good 	faith by unilaterally changing 	employees' 	terms
and conditions 	of 	employment. 	You assert that 	the 	facts 	in
Associated 	Home 	Builders 	of 	the Greater East 	Bay v. 	NLRB 	(9th
Circuit 	1965) 	352 F.2d 745, 	60 LRRM 2345; 	NLRB v. 	System Council
T-6 	(First Circuit 	1979) 	599 F.2d 5; 	and 	Chemical Workers 	Local
29 (Morton-Norwich Products. 	Inc.) 	(1977) 	228 NLRB No. 	127, 	94
LRRM 	1696 	are analogous 	to those 	in the 	instant case.
Each of the cases upon which the County relies, 	however, 	is
factually distinguishable. 	In all of the federal, cases cited, 	the
exclusive 	representative 	engaged 	in 	some 	affirmative 	conduct
resulting 	in an 	impact of 	considerable magnitude on a negotiable
subject. 	For example, 	in Associated Home Builders, supra, 	the
Local 	formally approved a 	resolution initiating, 	on a unit-wide
basis, 	specific production limitations 	for shinglers. 	Any union
member's 	violation of 	the 	limitations would 	result 	in 	sanctions
imposed by the exclusive 	representative. 	Similarly, 	in System
Council T-6. 	supra. 	the exclusive representative adopted a rule
prohibiting 	all 	members 	from accepting 	temporary management
assignments 	to 	supervisory positions. 	The rule was promulgated
despite 	language 	in the collective bargaining agreement, 	as well
as 	a 	long-standing past practice, 	recognizing management's 	right
to make 	such temporary assignment. 	In Chemical Workers 	Local 	29,
supra, 	the President of the union, 	despite a past practice of 	ten
years 	to the contrary, 	insisted on tape recording monthly
meetings 	on pending grievances. 	When the management represent-
ative 	refused 	to discuss 	grievances 	if 	such discussions 	were 	tape
recorded, 	the President, 	in turn, 	refused to discuss them at all;
nor would 	she 	agree 	to an expedited 	arbitration over 	the propri-
ety of 	the 	tape 	recording. 	This resulted 	in a virtual halt 	in
the 	grievance 	processing procedures.
In contrast, 	the 	three 	instances which the County alleges
constitute 	the 	exclusive 	representative's 	unilateral 	change 	of
policy, 	involve a dispute over an application of a 	contractual
provision. 	For example, 	the County alleges 	that the Associ-
ation's assertion in Case No. 	S-CE-1252 that the County uni-
laterally 	changed 	the 	contract's 	transfer provision 	[Article
22

11.7.5]1 by denying unit member Jeff Kitchen a transfer
constituted 	the 	exclusive 	representative's 	attempt 	to
unilaterally change 	a 	negotiable 	subject.2 Similarly, 	the County
alleges 	that 	the Association's 	filing of 	a 	charge 	over unit
member Hancock's 	denial 	of 	a 	leave of 	absence pursuant 	to Article
13.10 	also demonstrated 	its 	attempt to 	change 	a 	term 	in the
contract. 	The County's 	third argument 	is 	that 	the Association
attempted 	to 	unilaterally 	change 	the 	contract's 	teacher
evaluation provision 	[Article 	8.5.4], 	by challenging the County's
procedure 	of permitting a 	parent 	to visit 	Kitchen 	in his
classroom, 	accompanied by 	Kitchen's 	evaluator.
The Association's 	disagreement—as 	evidenced 	by 	its 	filing 	of 	a
charge 	at 	PERB—over the 	application of 	a 	contractual 	provision
is 	not 	tantamount 	to a wholesale repudiation of 	a 	negotiable
subject. 	With respect to 	at 	least two of 	the Association's
alleged 	"unilateral 	changes," 	those 	regarding transfer and 	leave
of 	absence, 	the County does 	not allege any affirmative 	conduct on
the part of the 	exclusive 	representative, 	other than the 	filing
of 	an unfair practice charge, 	demonstrating 	its 	intent 	to 	change
a 	negotiable 	subject. 	Concerning the Association's 	alleged
change of the contract's 	teacher evaluation procedures, 	the First
Amended Charge 	alleges 	that 	Kitchen 	stated 	to 	the 	County 	that
after 	talking with 	"his 	representatives," 	he would 	no 	longer
permit parents 	accompanied 	by his 	evaluator 	into 	the 	classroom.
The County alleges 	that 	it believes 	that Kitchen's 	representa-
tives 	include 	"unknown representatives 	or agents 	of 	the
Association." 	However, 	there are no allegations 	and no 	facts 	in
support 	thereof 	that 	the 	exclusive representative 	issued a direc-
tive ordering the 	repudiation of a term of 	employment 	estab-
lished by the contract or past practice. 	At best, 	it appears
that 	Kitchen received 	some 	advice which he 	either 	ignored, 	or
which he was unable to successfully implement. 	Thus, 	the 	federal
cases 	relied upon 	by 	the 	County 	are 	factually distinguishable 	in
this 	regard.
It 	should be noted that 	the parties' 	collective bargaining
agreement 	contains 	separate 	provisions 	governing 	employees 	who
wish, 	in general, 	to obtain a transfer, 	and those who have been
involuntarily 	transferred, 	who 	then desire 	to 	obtain a 	second
transfer. 	(Compare Article 	11.6 with Article 	11.7) 	Bargaining	,.
unit 	employee 	Jeff 	Kitchen was 	involuntarily 	transferred 	to
Winnie Wakely, 	a 	school 	for the developmentally disabled,
effective Fall of 	1987.
2 PERB has 	thus 	far not recognized as an unfair practice, 	a
party's 	"attempt" 	to commit a unilateral 	change.
w	3

Even assuming, 	for the sake of argument, 	that the exclusive
representative's 	conduct 	here 	did amount 	to 	more 	than a mere
filing of 	an unfair practice charge, 	the 	cases 	cited in the
County's 	March 28, 	1989 	letter are 	still distinguishable by the
scope 	and magnitude of 	the 	exclusive 	representative's 	conduct 	at
issue. 	Each of the 	federal 	cases 	involved the union's
promulgation of a rule of unit-wide application. 	In sharp
contrast, 	the Association's alleged unilateral changes 	of policy
in 	the 	instant 	case 	essentially 	involve 	a 	dispute 	over an
application of 	a contractual provision to 	a 	single unit member.
In this 	regard 	it 	is 	noteworthy that an essential 	element 	for
finding 	that 	an 	employer has 	violated 	EERA 	based 	upon a
unilateral 	change 	theory, 	is 	that 	the 	change of policy had a
"generalized 	effect 	or 	continuing 	impact" 	on 	terms 	and 	conditions
of 	employment. 	(See Grant Joint 	Union High 	School 	District
(1982) 	PERB Decision No. 	196; 	Chico Unified School District
(1983) 	PERB Decision No. 	286; 	Calexico Unified School District
(1983) 	PERB Decision No. 	357.) 	In absence of this essential
requirement, 	the controversy 	is 	relegated to a mere contractual
dispute over which PERB has 	no 	jurisdiction. 	(EERA section
3541.5(b).)
Thus, 	for these reasons, 	and those in my letter of March 	15,
1989, 	a complaint will not issue against 	the Association based
upon a 	unilateral 	change 	theory.
Independent Violation of 	EERA
You 	further allege 	in your First Amended Charge 	that the
Association's 	conduct constituted a 	"general violation 	" 	of EERA
remediable 	in the 	fashion of Compton Unified School 	District
(1987) 	PERB IR-50. 	In a subsequent telephone conversation with
the 	regional 	attorney, 	you 	indicated that 	the Association's
conduct constituted an independent. 	as 	opposed to a general
violation of EERA. 	The 	section alleged to have been violated 	is
EERA 	section 3540, 	which designates 	among the purposes of 	EERA,
the 	goal 	of 	the 	"improvement of 	employer-employee 	relations."
As 	the 	majority noted in Compton. 	supra. 	and as you correctly
assert 	in your March 28, 	1989 	letter, 	the courts have found that
PERB 	is 	not 	limited 	in all 	instances 	to remedying only violations
of EERA sections 	3543.5 or 3543.6. 	(Leek v. Washington Unified
School 	District 	(1981) 	124 Cal.App.3d 43, 	48-53, 	hg. 	den.; Link
v. 	Antioch Unified School District 	(1983) 	142 Cal.App.3d 765,
768-769. 	EERA section 	3541.3(i).) 	Instead, 	PERB's 	recognition of
violations 	of 	EERA 	independent 	of 	its 	unfair practice provisions
has 	been 	judicially 	sanctioned under certain circumstances. 	(See
also 	San Jose Teachers Association v. 	Superior Court and
Abernathy 	(1985) 	38 Cal.3d 839, 	vacated and reversed on other
grounds.)
4

- -
In Compton, 	supra. 	Member Porter and concurring Member Hesse
found 	that 	there was 	probable 	cause to believe 	that a post-
impasse 	intermittent 	teacher 	strike 	constituted 	an 	independent
violation of 	EERA section 3540, 	as well as 	a violation of 	EERA
section 	3543.6(c). 	Compton involved a 	series 	of work stoppages,
- -	lasting from one to five days at a time, 	for a total of 	16 days.
The work 	stoppages 	began 	in early November 	1966 	and 	continued
through March 	1987. 	The District was unable to replace the
striking 	teachers 	with 	substitutes 	to 	any 	significant degree.
Student attendance was down approximately 	70% 	from normal 	pre-
strike attendance. 	Moreover, 	attendance was well below average
even on days when no 	strike was 	in progress. 	Consequently, 	a
majority 	of 	the 	Board 	found 	that 	a 	considerable 	portion of 	the
District's 	student population 	received 	little 	or 	no 	meaningful
education 	for 	the period during which 	teachers 	engaged 	in
intermittent work stoppages. 	The Compton majority, 	in deciding
- -	to 	request 	a 	court order enjoining the 	strike, 	determined that
the work 	stoppages 	resulted 	in a 	"total 	breakdown 	in 	education",
and 	constituted probable 	violations 	of 	EERA 	sections 	3543.6(c)
and 	3540.3
It 	is 	not 	clear 	from the County's 	First Amended Charge or March
28, 	1989, 	letter how the Association's alleged unilateral changes
of policy governing transfer, 	leave of 	absence 	or parental
classroom 	visitation disrupted 	and 	interfered with 	the
educational 	process 	in the manner recognized 	by 	the 	majority 	in
Compton. 	With respect to 	the Association's 	alleged unilateral
change of 	the County's 	transfer policy, 	the County posits 	that
there would be an 	"administrative 	nightmare" 	if 	every teacher
employed by 	the 	County 	submitted a 	general 	request 	for 	transfer
to a unspecified position. 	However, 	the Association's unfair
practice 	is 	limited to the 	situation 	in which a 	teacher who 	has
been 	involuntarily 	transferred 	subsequently 	requests 	a 	transfer
to a different location. 	(See fn. 	1, 	supra.) 	The County's
- -speculation of 	future administrative burden 	is 	not akin to 	the
type 	of 	actual disruption recognized by 	the 	majority 	in Compton.
Further, 	with respect to the Association's 	assertion in Case No.
S-CE-1262 	that 	the 	contract entitles 	Hancock 	to 	a personal 	leave
of absence 	beyond the period of 	one year, 	the County alleges 	that
the 	Association's
3The Court of Appeal 	in PERB v. 	Modesto City Schools
District 	(1982) 	136 Cal.App.3d 	881 	delineated a 	two-part 	test
under which 	PERB may 	seek an 	injunction during 	the pendency 	of 	an
unfair practice proceeding. 	First, 	there must 	exist reasonable
cause to believe 	that an unfair practice has 	occurred; 	and
second, 	the granting of 	injunctive relief must be 	just and
proper.
S5

- -
attempt 	to 	unilaterally 	change 	the 	intent 	of
Article 	13.10 	...is 	disruptive 	and 	interferes
with 	the 	educational process 	in that 	there 	is
a 	loss 	of 	continuity which 	results 	from a
teacher being out 	of 	the 	classroom 	for 	more
than one school year. 	...
Again, 	the County's 	assertion appears 	to be 	speculation. 	The
Association's 	mere 	filing 	of 	an unfair practice 	charge 	has 	not
resulted 	in such occurrences. 	Further, 	as was 	relayed 	in a
telephone 	conversation with 	the 	regional 	attorney, 	the 	County has
never granted back-to-back leaves of absence. 	Therefore, 	it 	is
difficult 	to 	anticipate 	interference with 	the 	educational 	process
of 	any 	appreciable 	magnitude.
Finally, 	the County argues 	that 	the Association's 	challenging of
the County's 	parental 	visitation policy 	is 	disruptive 	of 	the
educational 	process 	because parents 	of 	developmentally disabled
children cannot 	have 	meaningful 	input 	into 	the preparation of 	a
program responsive 	to 	their child's 	special 	needs. 	The County
asserts 	that Kitchen's 	revocation of parental visitation, 	on the
alleged advice of his 	"representatives", 	is 	actual 	evidence of
disruption as 	it now happens. 	Although, 	with respect to this
argument, 	the County refers 	to an actual 	event which appears 	to
be beyond mere 	speculation, 	in conversations with the regional
attorney 	it was 	recognized that, 	despite 	Kitchen's purported
"revocation," 	parental visitations 	continued nonetheless. 	In any
event, 	this degree of disruption is vastly different 	in
magnitude 	from that 	identified by the 	majority 	in Compton.
For the above 	reasons, 	a 	complaint will 	not 	issue on the County's
allegation that 	the 	exclusive 	representative's 	conduct
constituted 	an 	independent 	violation of 	EERA 	section 	3540.
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 	(California
Administrative Code, 	title 8, 	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
6

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 	(California
Administrative Code, title 8, 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 California Administrative Code,
title 8, 	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 	(California
Administrative Code, title 8, section 32132).
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
CHRISTINE A. 	BOLOGNA
General Counsel
BY
Jennife 	A. 	Chambers
Regional Attorney
Attachments
By/ ________
7

STATE Of CALIFORNIA 	GEORGE 	DEUKMEJIAN Govmor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
March 	15, 	1989
Allen R. 	Vinson
Girard 	& 	Griffin
1535 	Treat 	Blvd.
Walnut Creek, 	CA 	94598
Re: 	El 	Dorado County Office 	of 	Education v. 	El 	Dorado County
Teachers 	Association. 	CTA/NEA
Case 	No: 	S-CO-197
Dear Mr. 	Vinson:
The 	above-referenced 	charge 	alleges 	that 	the 	El 	Dorado County
Teachers Association 	(Association), 	attempted 	to 	change 	the
meaning 	of 	the 	parties' 	collective 	bargaining 	agreement without
first 	meeting 	and 	negotiating 	in good 	faith. 	This 	was
accomplished 	by 	the Association's 	filing 	of 	an 	Unfair 	Practice
Charge 	against 	the 	El 	Dorado County Office of 	Education 	(County).
The 	Association's 	conduct 	is 	alleged 	to 	violate 	section 	3543.6(c)
of the Educational Employment Relations Act. 	(EERA).
My 	investigation 	revealed 	the 	following 	facts. 	The 	above-
referenced 	charge 	refers 	to 	two 	charges 	filed 	by 	the 	Association
against the employer. 	One charge, 	(S-CE-1100), 	filed on May 29,
1987, 	culminated 	in a proposed 	decision 	issued by Administrative
Law Judge 	Ronald 	Blubaugh.1 Although 	Case 	No. 	S-CE-1100 	is
mentioned 	in 	the 	County's 	allegations 	against 	the Association,
this 	charge 	is 	not directly at 	issue. 	The 	second 	charge 	referred
to 	in 	the County's 	unfair practice charge 	is Case No. 	S-CE-1252,
1 I n Case 	No. 	S-CE-1100, 	the Association alleged, 	in part,
that 	two unit 	teachers, 	Jeff 	Kitchen and Ray Hancock, 	were
unlawfully 	transferred 	to 	another 	school 	due 	to 	their 	exercise 	of
protected 	activities. 	The 	charge 	additionally 	alleged 	that 	the
employer 	retaliated 	against 	Kitchen 	by 	issuing 	him 	an 	unlawfully
motivated 	reprimand, 	and 	that 	the 	County unilaterally 	changed 	the
work 	year 	calendar, 	and unilaterally 	subcontracted 	nursing
services 	to 	independent contractors. 	A 	complaint 	issued 	on 	these
allegations, 	and 	the ALJ 	found 	that 	the 	County did 	not 	retaliate
against 	Kitchen 	and 	Hancock 	by 	transferring 	them 	to 	another
school. 	However, 	the ALJ did 	find 	violations 	of 	EERA 	as 	to 	the
other 	allegations 	mentioned 	above. 	Neither party 	appealed 	the
ALJ's 	Proposed 	Decision, 	and 	it became 	final 	on October 	3, 	1988.
__	-_-_--

filed by the Association on December 7, 	1988 	and amended on
December 20, 	1988, 	and again on February 27, 	1989. 	It is
directly implicated in the County's unfair practice charge. 	As
of the date bf this warning letter, 	the investigation of Case No.
S-CE-1252 	is still pending.
In Case No. 	S-CE-1252, 	the Association alleged, 	in part, 	that the
District unilaterally changed the transfer policy as
expressed in Article 	11.7.5 of the parties' 	collective bargaining
agreement.N 	That Article provides, 	in pertinent part:
If an employee 	is transferred involuntarily and is
dissatisfied with the new position, 	the employee may
request a voluntary transfer to the next available
County Office 	staff position for which the employee 	is
qualified. 	...
In Case No. 	S-CE-1252, 	the Association alleged that the transfer
policy as 	expressed in Article 	11.7.5 was unilaterally changed
when the County 	imposed the new requirement 	that employees
wishing to transfer must request the specific 	location to which
they would like to be transferred. 	In the instant case, 	the
County alleges that the Association's pursuit of 	its charge
against the County, 	in which the County's requirement of a
"specific request" 	is challenged, 	itself constitutes an "attempt
by the Association to unilaterally change the 	intent and practice
of Article 11.7", 	in violation of EERA Section 3543.6(c).
In Case No. 	S-CE-1252, prior to its second amendment3, the
Association additionally alleged that the County unilaterally
changed the policy as expressed in Article 	13.7.5 of the parties'
contract, which provides:
An industrial accident or illness 	is defined
as an injury or illness whose cause can be
traced to the performance of duties 	on the
job and as adjudged under the provisions of
the State Workers' 	Compensation Insurance
law.
2 A l l of the County's contractual references 	are to the
parties' 	collective bargaining agreement which expired on June
30, 	1988. 	The parties agreed to a successor contract in the Fall
of 	1988. 	The successor retains the same language as the expired
contract in all contractual provisions at issue herein.
3 The Association omitted this 	allegation from 	its 	Second
Amended Charge. 	See footnote 4, 	infra..
2
'
2

The 	theory 	alleged 	by 	the 	Association 	in Case 	No. 	S-CE-1252 	was
that, 	when unit 	member 	Ray 	Hancock 	requested 	the 	County 	Office 	to
grant 	him 	an 	"illness 	leave 	of 	absence", 	the 	County 	required 	him
to 	take 	a physical 	examination, 	even though he was 	not 	required
to 	take 	one 	the 	previous 	year, 	and 	the 	contract 	did 	not 	provide
for one. 	The County's 	requirement of 	a physical 	exam was 	alleged
to 	demonstrate 	its 	unilateral 	change 	of 	the policy 	expressed 	in
Article 	13.7.5.
The County's 	charge 	against 	the Association, 	in 	turn, 	avers 	that
the Association's 	allegation 	relating 	to Article 	13.7.5
demonstrates 	its 	attempt 	to 	unilaterally 	change 	the 	"intent 	and
practice of 	the 	collective 	bargaining agreement". 	This 	is 	so
because Article 	13.7.5. 	clearly provides 	that 	there 	must 	be 	an
adjudication 	"under 	the 	provision of 	the Workers' 	Compensation
Insurance 	Law", 	which did 	not 	occur 	in Hancock's 	situation.
The 	County 	additionally 	alleges 	that 	Hancock actually 	requested 	a
leave pursuant 	to Article 	13.10 	of 	the 	contract, 	designated
"Personal 	Leave", 	as 	opposed 	to 	"Industrial 	Leave" 	under Article
13.7.5.* 	However, 	Article 	13.10 of the parties' 	contract,
alleges 	the 	County, 	forbids 	the 	employer's 	granting 	of 	a 	personal
leave 	in 	excess 	of 	one 	year. 	Since 	Hancock requested 	two
successive 	one 	year 	leaves, 	the Association 	in effect was
attempting 	to 	unilaterally 	change 	the 	policy 	expressed 	in 	13.10
by 	challenging, 	via 	its 	unfair practice charge, 	the County's
denial of 	a personal 	leave of 	absence 	to Hancock.
In Case No. 	S-CE-1252, 	the Association additionally 	alleged that
the 	County 	unilaterally 	changed Article 	8.5.4 	of 	the 	collective
bargaining 	agreement 	by 	permitting parents 	to 	participate 	in 	the
teacher 	evaluation 	process.
Article 	8.5.4 	provides, 	in pertinent part:
The 	supervisor will 	normally 	make 	an
appointment 	in 	advance 	to 	observe 	the
teacher's 	effectiveness 	in 	the 	classroom....
Nothing 	herein 	shall 	restrict 	a 	supervisor 	or
administrator 	from 	making 	unannounced
classroom 	visits 	for 	the 	above 	and other
purposes.
4 In the Association's 	Second Amended Charge, 	it 	omitted 	all
references 	to 	the 	County's 	alleged 	unilateral 	change 	of 	the
policy 	expressed 	in Article 	13.7.5, 	and advanced 	instead
allegations 	that 	the 	county 	unilaterally 	changed 	the 	contract's
"Personal 	Leave" 	provision of Article 	13.10.
w	3

In 	the Association's 	charge, 	it 	alleged that, 	by permitting
administrators 	accompanied 	by 	parents 	into 	the 	classroom 	to
observe 	the 	teacher, 	the County was 	unilaterally 	changing 	its
policy 	on 	conducting 	teacher 	evaluations 	solely 	by 	a 	supervisor
or 	administrator. 	The County, 	in turn, 	alleges 	in its 	charge
against 	the 	Association 	that 	the 	contractual procedures 	for
evaluation 	contained 	at 	Article 	8.5 	are 	in 	no way 	related 	to 	the
long 	established practice 	of 	permitting 	parents 	inside 	the
classroom 	to 	observe 	the 	teacher. 	By 	asserting 	such 	a 	theory 	in
its 	unfair 	practice 	charge 	the Association 	is 	attempting:
to 	unilaterally 	change 	the 	practice 	and
intent of 	the County 	office 	in allowing
parents 	to 	visit 	classrooms 	and observe
teachers, 	and 	is 	a 	unilateral attempt to
change the 	meaning, 	intent 	and practice of
Article 	8.5.4 	of 	the 	collective bargaining
agreement 	without 	meeting 	and
negotiating....in 	violation 	of 	EERA 	Section
3543.6(c).
Based 	upon 	the 	facts 	described 	above, 	the County's 	charge 	fails
to 	state 	a 	prima 	facie 	violation of 	EERA 	for the 	reasons 	which
follow.
The 	conduct 	alleged to 	violate 	EERA 	section 3543.6(c) 	is 	the
Association's 	filing of 	an unfair practice 	charge, 	which 	the
County 	maintains 	constitutes 	a 	"unilateral 	change" 	of 	certain
policies 	expressed 	in the parties' 	collective bargaining
agreement.
At 	present, 	there 	is 	no 	PERB 	decision that 	recognizes 	as 	an
unfair practice 	a union's 	unilateral 	change of 	a policy. 	Thus
far, 	PERB has 	exclusively 	interpreted 	EERA 	section 	3543.6(c) 	to
find 	an 	unfair practice 	by 	a 	union 	against 	an 	employer 	only 	on
the 	basis 	that 	the 	former has 	refused 	to bargain 	in 	good 	faith.
If 	the 	employer 	can demonstrate 	that 	the union has, 	for 	example,
fostered 	unreasonable 	delay 	in 	the 	negotiating process, 	refused
to 	make 	counter-proposals, 	or 	has 	otherwise 	refused 	to 	bargain 	in
good 	faith, 	PERB may 	find 	a 	violation of 	EERA 	section 	3543.6 (c)
based upon the 	totality of 	circumstances. 	(See, 	eg, 	Gonzales
Union High School District 	(1985) 	PERB Decision No. 	480).
Although 	the County cannot 	cite 	to 	any 	PERB authority 	which 	finds
a 	violation of 	EERA 	section 	3543.6(c) 	on the 	theory 	that 	the
union has 	committed a unilateral 	change, 	it 	is worthy 	of 	mention
that 	in Compton Unified 	School 	District 	(1987) 	PERB 	IR-50, 	Member
Porter 	identified a post-impasse 	teacher 	strike 	as 	constituting 	a
unilateral 	change 	in 	terms 	and 	conditions 	and 	employment.
However, 	neither concurring 	Member 	Hesse, 	nor dissenting 	Member
Craib 	joined 	Member 	Porter 	in 	recognizing 	this 	theory 	for 	finding
a 	violation of 	EERA 	section 	3543.6(c).
A ...

The allegations 	contained in the County's unfair practice charge
may more appropriately be used 	for argument 	in its defense
against the Association's charge, 	as opposed to stating a prima
facie violation of EERA. 	If the County feels 	that the
Association's filin+g of Case No. 	S-CE-1252 	is unfounded it
should, 	assuming that a complaint issues, 	request the hearing
officer to order the Association to pay the County's attorney's
fees as part of that litigation. 	(King City Joint Union High
School District (1982) 	PERB Decision No. 197, review pending).
For these reasons, Case Number S-CO-197, 	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 require a different conclusion than the one explained
above, 	please amend the charge accordingly. 	This 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 March 29, 	1989, 	I shall dismiss your charge
without leave to amend. 	If you have any questions on how to
proceed, please call me at (916) 	322-9198.
Sincerely,
Jennifer Chambers
Regional Attorney
JAC:djt
S
~cerely,
5