Los Angeles Unified School District (United Teachers Los Angeles) (PERB 0860E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED TEACHERS 	- 	LOS ANGELES,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2751
PERB 	Decision No. 	860
December 19, 	1990
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Appearances: 	Taylor, 	Roth, 	Bush & Geffner by Jesus E. 	Quinonez,
Attorney, 	for United Teachers 	- 	Los Angeles; 	O'Melveny & Myers
by Richard N. 	Fisher and Craig A. 	Horowitz, 	Attorneys, 	for
Los 	Angeles 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Shank and Cunningham, 	Members.
DECISION
CUNNINGHAM, 	Member: 	This 	case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on exceptions 	filed
by the Los Angeles 	Unified School 	District 	(District) 	to the
attached proposed decision by an administrative 	law 	judge 	(ALJ),
wherein 	it was 	found that 	the 	District 	violated 	the 	Educational
Employment Relations Act 	(EERA), 	section 3543.5(b) 	and 	(c)1 when
1BERA 	is 	codified at Government Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Prior to January 	1, 	1990, 	section 3543.5
stated, 	in pertinent part:
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.
________________ )

it 	unilaterally 	established 	the wage 	rate payable 	to 	certificated
employees 	participating 	in the 	District's 	after-school 	Early
Education Program 	(EEP) 	without 	first bargaining with 	United
Teachers-Los Angeles 	(UTLA). 	UTLA also alleged that the 	District
violated 	section 3543.5(b) 	and 	(c) 	by 	failing and refusing to
provide 	UTLA with 	requested 	information 	in 	a 	timely 	manner
during negotiations; 	however, 	the ALJ 	found that UTLA failed
to 	establish 	that 	the 	District 	committed 	such 	a 	violation and
therefore dismissed this 	portion of 	the 	complaint.
On appeal, 	the District argues 	that the ALJ 	erred 	in
finding: 	(1) 	this matter is 	not 	subject to mandatory deferral to
arbitration; 	(2) 	the District did not act in a manner consistent
with its 	contractual obligation; 	(3) 	the District did not
establish its past practice defense; 	and 	(4) 	the parties did not
reach 	impasse on the 	salary 	issue. 	UTLA excepts 	to 	the ALJ's
ruling 	that 	its 	post-hearing brief was 	untimely 	filed.
We have reviewed the 	entire record 	in this matter, 	including
the proposed decision, 	the 	District's 	exceptions 	and UTLA's
responses 	thereto, 	and, 	finding the ALJ's 	statement of 	facts 	to
be 	free 	from prejudicial 	error, 	adopt 	it as our own. 	Insofar as
they are 	consistent with the discussion below, 	we 	also 	adopt 	the
ALJ's 	conclusions 	of 	law.
DISCUSSION
The 	District 	argues 	at 	some 	length 	in 	its 	exceptions 	that
the ALJ 	incorrectly 	ruled 	that 	this 	was 	not 	a 	mandatory 	deferral
matter within the 	scope 	of 	Lake 	Elsinore 	School 	District 	(1987)
22

PERB Decision No. 	646, 	and that, 	therefore, 	PERB has jurisdiction
over this 	case. 	The District's 	argument regarding deferral 	is
summarized by 	the District 	as 	follows:
If 	the 	District 	correctly 	applied 	Section
6.0 	to the Early Education Program, 	such
compliance 	is 	a 	complete defense to UTLA's
claim. 	If 	the 	District misapplied Section
6.0, 	it violated the Agreement. 	In either
circumstance, 	UTLA's 	claim raises 	a contract
issue which an 	arbitrator 	can 	fully 	resolve,
and 	the PERB must defer this 	matter to 	the
grievance 	machinery.
(District's Exceptions 	at p. 	27.)
The 	above-referenced 	argument 	by 	the 	District 	constitutes
an 	incorrect 	statement 	of 	the 	Board's 	deferral doctrine.2 In
Lake Elsinore School District, 	supra, 	PERB Decision No. 	64 6, 	the
Board held 	that 	it has 	no 	jurisdiction over matters 	involving
conduct 	arguably prohibited by 	a provision of 	the 	collective
bargaining 	agreement 	until 	the 	grievance 	machinery 	of 	the
agreement, 	if 	it exists and covers 	the matter at issue, 	has been
exhausted 	either by 	settlement 	or by binding arbitration. 	The
key portion of 	the 	Board's 	Lake Elsinore holding, 	as 	it pertains
22The District 	contends 	that 	its 	accurate application of 	the
language 	in the 	collective bargaining agreement 	constitutes 	a
complete defense to UTLA's 	claim in this 	instance. 	This 	does
not, 	in and of 	itself, 	resolve the deferral issue. 	If the record
indeed demonstrates 	that 	the 	District 	complied with 	the 	contract,
then there 	could be no 	finding on the merits 	that 	the 	District
unlawfully 	instituted a change 	in policy, 	as 	the District argues.
Nevertheless, 	this 	matter would be properly within the 	Board's
jurisdiction and not 	subject to mandatory deferral. 	On the 	other
hand, 	a misapplication of 	contract 	language may constitute 	a
violation of the agreement and, 	thus, 	may raise an issue of-
deferral, 	but only 	in instances where the Board's 	Lake Elsinore
School District 	standard 	is 	met.
3

to the present case, 	is 	that the conduct at 	issue must be
arguably prohibited 	by 	the 	language 	of 	the 	agreement.
Quite 	apart 	from the merits 	of 	the unfair practice 	charge
before us, 	the contract provision at issue, 	section 6.0, 	does not
"arguably prohibit" 	the District's 	conduct 	in this 	instance. 	The
language 	contained 	in 	section 	6.0 	indeed 	requires 	the 	District 	to
pay a 	certain 	set rate 	for the performance of 	specific 	duties 	by
certificated 	staff. 	(See ALJ's proposed decision at p. 	5.) 	In
this 	case, 	the District has 	utilized one 	category of duties 	and
its 	corresponding pay rate 	in 	computing the 	appropriate 	rate 	of
pay 	for EEP participants. 	Consequently, 	the ALJ's 	conclusion as
to 	the deferral 	issue 	is 	correct 	and the 	District's 	exceptions 	in
this 	regard are without merit.
As 	to 	the 	District's 	exceptions 	regarding 	the 	substantive
issues 	of whether the contract 	expressly permits 	the 	conduct 	at
issue herein, 	or, 	if not, 	whether the District has a valid past
practice defense, 	we 	find that 	no points 	have been raised which
were 	not 	already presented 	to 	and 	considered by the ALJ. 	We
affirm the ALJ's 	conclusions with respect 	to these matters 	and
find the 	District's 	exceptions 	to be without 	foundation.
Additionally, 	we note that there 	is 	another 	factor which bolsters
the ALJ's 	finding that 	the 	EEP 	is 	a 	unique program vis-a-vis 	the
other 	after-school 	programs 	claimed 	by 	the 	District 	to 	establish
a past practice governing this 	instance. 	That 	factor 	is 	the
M .
4

EEP's 	statutory basis,' 	which the other programs, 	essentially
3The EEP, 	codified at Education Code 	section 56440, 	is a
unique 	and 	different 	program 	involving preschoolers 	who 	are 	not
otherwise 	enrolled 	in the 	school district. 	Under the 	statutory
scheme, 	the 	early education and 	services 	shall 	include the
following elements, 	as 	set 	forth in section 56441.3 	of the
Education Code:
(1) 	Observing and monitoring 	the 	child's
behavior and development 	in his 	or her
environment.
(2) 	Presenting activities 	that are
developmentally 	appropriate 	for 	the 	preschool
child and are 	specially designed, 	based on
the child's exceptional needs, 	to enhance the
child's 	development. 	Those activities 	shall
be 	developed 	to 	conform with 	the 	child's
individualized 	education program 	and 	shall 	be
developed 	so 	that 	they do 	not 	conflict with
his or her medical needs.
(3) 	Interacting and 	consulting with the
family members, 	regular preschool teachers,
and other service providers, 	as needed, 	to
demonstrate 	developmentally 	appropriate
activities 	necessary to 	implement 	the 	child's
individualized 	education 	program 	in 	the
appropriate 	setting pursuant 	to 	Section
56441.4 	and necessary 	to 	reinforce 	the
expansion of his 	or her 	skills 	in order to
promote 	the 	child's 	educational development.
These 	interactions 	and 	consultations 	may
include 	family 	involvement 	activities.
(4) 	Assisting parents 	to 	seek and coordinate
other 	services 	in their 	community 	that 	may be
provided 	to their 	child by various 	agencies.
(5) 	Providing opportunities 	for young
children to participate 	in play 	and
exploration activities, 	to develop self-
esteem, 	and to develop preacademic 	skills.
(6) 	Providing access 	to various
developmentally 	appropriate 	equipment 	and
specialized materials.
(7) 	Providing related 	services 	as defined
in Section 	300.13 	of Title 	34 	of 	the Code
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of Federal 	Regulations, 	that include parent
counseling 	and 	training 	to 	help parents
understand the 	special 	needs 	of 	their
children and 	their 	children's 	development,
as 	that 	section read on May 	1, 	1987.
tutorial in nature, 	do not share.
As 	to the District's 	final 	exception, 	we 	find that the ALJ
correctly 	concluded that the 	District's 	"impasse" 	defense 	is 	not
valid under 	these 	circumstances. 	The parties 	did not 	complete
the 	impasse process.4 Alternatively, 	even if 	they had completed
4The 	impasse procedures 	referenced 	herein 	are 	contained 	at
EERA sections 	3548 	and 	3548.1(a) 	and provide, 	in pertinent part:
3 548. 	MEDIATOR; 	MUTUAL AGREEMENTS
Either a public 	school 	employer or the
exclusive 	representative 	may declare 	that 	an
impasse 	has 	been reached 	between 	the parties
in negotiations 	over matters within the 	scope
of 	representation and may 	request 	the 	board
to appoint a mediator 	for the purpose of
assisting 	them 	in reconciling 	their
differences 	and 	resolving 	the 	controversy 	on
terms which are mutually acceptable. 	If 	the
board determines 	that an impasse exists, 	it
shall, 	in no event 	later than five working
days 	after the receipt of a request, 	appoint
a 	mediator 	in accordance with 	such rules 	as
it 	shall prescribe. 	The mediator shall meet
forthwith with the parties 	or 	their
representatives, 	either 	jointly or
separately, 	and 	shall 	take 	such other
steps 	as 	he may deem appropriate 	in order
to persuade the parties 	to 	resolve their
differences 	and 	effect 	a 	mutually 	acceptable
agreement.
3548.1. 	FACT FINDING PANEL; 	REQUEST;
SELECTION OF PANEL; 	CHAIRPERSON
(a) 	If the mediator is unable to effect
settlement 	of 	the 	controversy within 	15
days 	after his 	appointment and 	the mediator
declares 	that 	factfinding 	is 	appropriate 	to
the resolution of the 	impasse, 	either party
66

the process, 	the 	specific dispute over the EEP wage rate was 	not
submitted 	as 	an unresolved 	item 	for 	PERB's 	statutory 	impasse
procedures. 	The 	fact that the general 	issue of wage rates
pertaining to all 	after-school programs was 	submitted 	to 	the
impasse procedures 	does 	not 	change 	this 	finding.
may, 	by written notification to the other,
request 	that 	their differences 	be 	submitted
to a 	factfinding panel.
The 	statutory 	impasse 	procedures 	are 	exhausted 	only when
the 	factfinder's 	report has 	been considered 	in good 	faith, 	and
then only 	if 	it 	fails 	to 	change 	the 	circumstances 	and provides 	no
basis 	for movement 	that 	could 	lead to 	settlement. 	At 	that point,
either party may decline 	further requests 	to bargain, 	and the
employer 	may 	implement 	policies 	reasonably 	comprehended 	within
previous 	offers 	made 	and negotiated between the parties.
(Modesto City Schools 	(1983) 	PERB Decision No. 	291, 	pp. 	32-33.)
Lastly, 	UTLA has 	excepted to the ALJ's 	ruling that 	its
post-hearing brief was 	untimely 	filed. 	UTLA argues 	that 	PERB
Regulation 32130(c)5 applies 	in this 	instance, 	but that the ALJ
failed 	to 	apply 	this 	section 	and 	simply 	counted 	the 	30-day-brief-
filing period 	from the date 	the 	transcript was 	served. 	However,
as 	UTLA claims, 	the transcript was 	served by mail, 	and thus 	the
filing period 	should 	have been 	extended by 	five 	days 	pursuant
to 	the California Code of Civil 	Procedure 	section 	1013.
Accordingly, 	UTLA's brief was 	filed with PERB within 35 days, 	and
was 	therefore 	timely 	filed.
5Regulation 32130(c) provides, 	in pertinent part:
. 	. 	. 	the extension of time provided by
California Code of 	Civil 	Procedure 	section
1013, 	subdivision (a), 	shall apply to any
filing made 	in response to documents 	served
by 	mail.
77

ORDER	ORI 3
Upon the 	foregoing findings 	of 	fact, 	conclusions 	of 	law,
and the 	entire record in this 	case, 	it has 	been 	found that the
Los 	Angeles 	Unified 	School 	District 	violated 	section 	3543.5(b)
and 	(c) 	of the Educational Employment Relations Act 	(Act). 	It is
hereby ORDERED 	that 	the 	Los 	Angeles 	Unified 	School 	District 	and
its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and negotiate 	in good 	faith with
United 	Teachers 	- 	Los Angeles 	by unilaterally determining 	the
rate 	of 	compensation 	for 	certificated 	bargaining 	unit 	employees
participating 	in the 	Early 	Education Program.
2. 	Denying to United Teachers 	- 	Los Angeles 	rights
guaranteed to 	it by the Act, 	including the right to represent 	its
bargaining unit members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSE 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Upon request, 	negotiate 	in good faith with United
Teachers 	- 	Los Angeles 	concerning the rate of 	compensation for
certificated 	unit 	employees 	participating 	in the 	Early 	Education
Program.
2. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	post 	at
all 	work 	locations where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the Notice attached as 	an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
8
Qfil 	~

shall be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be taken to 	insure that this
Notice 	is 	not reduced in 	size, 	defaced, 	altered or covered by any
material.
3. 	Written notification of 	the actions 	taken to 	comply with
this 	Order 	shall be made to the Los Angeles 	Regional 	Director of
the 	Public 	Employment Relations 	Board 	in accordance with her
instructions.
IT 	IS 	FURTHER ORDERED that 	all 	other allegations 	in the
charge and complaint in Case No. 	LA-CE-2751, 	as amended, 	are
hereby 	DISMISSED.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
9
9

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	LA-CE-2751,
United Teachers 	- 	Los Angeles v. 	Los Angeles 	Unified 	School
District, 	in which all parties had the right to participate,
it 	has 	been found that 	the 	Los Angeles 	Unified School 	District
violated section 3543.5(b) 	and 	(c) 	of the Educational Employment
Relations 	Act 	(Act).
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and negotiate 	in good 	faith with
United 	Teachers 	- 	Los Angeles 	by unilaterally determining 	the
rate 	of 	compensation 	for 	certificated 	bargaining 	unit 	employees
participating 	in 	the 	Early 	Education 	Program.
2. 	Denying to United Teachers 	- 	Los Angeles 	rights
guaranteed to 	it by the Act, 	including the right to represent
its bargaining unit members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	PURPOSE 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Upon request, 	negotiate 	in good faith with United
Teachers 	- 	Los Angeles 	concerning the rate of 	compensation for
certificated 	unit 	employees 	participating 	in the 	Early 	Education
Program.
Dated: 	LOS 	ANGELES 	UNIFIED 	SCHOOL 	DISTRICT
By
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED 	TEACHERS 	- 	LOS 	A N G E L E S ,
Charging 	Party,
v.
LOS 	A N G E L E S 	UNIFIED 	SCHOOL
D I S T R I C T ,
Respondent.
Unfair 	Practice
Case 	N o . 	LA-CE-2751
PROPOSED 	DECISION
(2/21/90)
A p p e a r a n c e s : 	Taylor, 	R o t h , 	Bush & Geffner by Jesus 	E. 	Q u i n o n e z ,
A t t o r n e y , 	for 	United Teachers 	- 	Los 	A n g e l e s ; 	O'Melveny 	& 	M y e r s 	by
V i r g i n i a 	L. 	H o y t , 	Attorney, 	for Los Angeles 	Unified 	School
D i s t r i c t .
B e f o r e 	W. 	J e a n 	T h o m a s , 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On May 	12, 	1988, 	the 	United Teachers 	- 	Los A n g e l e s
(hereafter 	UTLA 	or 	Charging 	Party) 	filed 	an 	unfair 	p r a c t i c e
charge 	w i t h 	the 	Public 	Employment 	Relations 	Board 	(hereafter
P E R B ) 	against 	the 	Los 	A n g e l e s 	Unified 	School 	District 	(hereafter
District 	or 	R e s p o n d e n t ) . 	The 	charge 	alleged violations 	of
G o v e r n m e n t 	Code 	sections 	3543.5(b) 	and 	(c) 	of 	the 	Educational
E m p l o y m e n t 	Relations 	Act 	(hereafter 	EERA 	o r A c t ) . 1
1 The 	EERA 	is 	codified 	at 	Government 	C o d e 	section 	3540 	et
seq. 	A l l 	section 	r e f e r e n c e s , 	unless 	otherwise 	noted, 	are 	to 	the
G o v e r n m e n t C o d e . 	Section 	3543.5 	states, 	in pertinent p a r t :
UNLAWFUL 	PRACTICES: 	EMPLOYER
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	t o :
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
)
)
)
)
)
)
)
)
}
__________ )

discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of 	rights
guaranteed by 	this 	chapter.
(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.
On October 3, 	1988, 	the General Counsel of PERB, 	after an
investigation of the charge, 	issued a 	complaint alleging
violations of sections 3543.5(b) 	and 	(c). 	On October 28, 	1988,
the 	Respondent 	filed 	its 	answer to the 	complaint.
On November 	18, 	1988, 	an informal conference was held to
explore voluntary 	settlement possibilities. 	No 	settlement was
reached.
The 	formal hearing was held on May 5, 	1989. 	During the
hearing UTLA, 	pursuant to California Administrative Code, 	title
8, 	section 32648 	(hereafter PERB Regulations), 	moved to amend the
complaint 	to 	add an allegation 	that 	the 	District 	unlawfully
refused 	to provide 	information to 	UTLA regarding 	an 	early
education program. 	The motion was 	granted. 	The District was
thereafter provided with 	a 	full 	opportunity 	to defend 	against
this 	allegation. 	This 	included the 	record being 	left 	open to:
(1) 	permit the Respondent to 	submit a declaration and 	supporting
documentation to 	support 	its position that all 	requested
information was 	supplied to UTLA; 	and 	(2) 	permit the Charging
Party to present 	rebuttal 	testimony to 	the 	additional 	evidence.
N	2

On May 22, 	1989, 	the District 	filed a declaration of 	Shirley
C. 	Woo, 	and supporting documentation, 	concerning Woo's actions 	in
mid-December 	1987, 	in response to UTLA's 	request 	for information
about 	the 	early 	education program. 	UTLA did not present 	any
rebuttal 	to 	this 	declaration. 	The hearing record was 	formally
closed on June 	1, 	1989.
The parties 	thereafter briefed 	their respective positions.2
The 	case was 	submitted for decision on July 	26, 	1989.
INTRODUCTION
Charging 	Party 	alleges 	that 	the 	District 	implemented 	a 	new
special 	education program 	for pre-school 	age 	children 	and
unilaterally 	set 	the 	salary 	for the 	certificated 	staff 	of 	the 	new
program. 	It 	further alleges 	that the District 	failed to provide
requested 	information about 	the 	new program that was 	relevant 	and
necessary 	for 	the 	Charging 	Party 	to 	fulfill 	its 	collective
bargaining 	responsibilities.
The 	District 	insists 	that no unfair practice has 	been
committed because 	the 	subject 	salary was 	set pursuant 	to 	the
collective bargaining agreement 	(hereafter CBA). 	The District
also 	insists 	that 	it did not 	fail 	to provide any 	information
requested 	by 	the 	Charging 	Party.
2Charging Party's 	brief was 	untimely 	filed. 	Since 	the
Charging 	Party presented 	no 	justification 	for the 	late 	filing,
its 	brief was 	not 	considered 	in the preparation of 	this 	proposed
decision.
33

FINDINGS 	OF 	FACT
The parties stipulated, 	and, it is therefore found, 	that the
Charging Party 	is 	an 	employee 	organization and 	an 	exclusive
representative 	and the Respondent 	is 	a public 	school 	employer
within the meaning of the EERA. 	UTLA is 	the exclusive
representative 	of 	the 	District's 	certificated bargaining 	unit.
UTLA 	and 	the 	District were 	signatories 	to 	a 	CBA 	effective
from January 27, 	1986, 	to June 30, 	1988. 	At the time of the
hearing, 	they were 	in the process 	of negotiating a 	successor
agreement.
As a part of 	its 	educational program, 	the District has
created a 	number of 	"after-school" 	programs 	that provide
different types 	of 	services 	to children in the District. 	Some
examples of these programs are: 	(1) 	the Ten-Schools Program, 	a
program 	in which 	teachers 	provide 	assistance 	and 	tutoring 	to
students on Saturdays; 	(2) 	Project Furlough, 	an after-school
tutoring program; 	(3) 	Beyond Survival Program, 	another program
that provides assistance and tutoring to 	students; 	(4) 	Milken
Academic 	Excellence Program, 	a 	tutoring program to 	assist 	"kids
at risk"; 	(5) 	a Driver's 	Education Program for 	special 	education
students; 	(6) 	Junior High Assistance Program, 	a program that
provides 	supplemental 	counseling and guidance 	to 	students 	beyond
the regular school day; 	and 	(7) 	Home/Hospital Program, 	a program
that provides 	direct 	instruction to 	students who 	are disabled at
home 	or 	are hospitalized.
A
4

Appendix 	E, 	section 	6.0 	of 	the CBA,3 "Salary Tables 	and
Rates" states:
6.0 	Flat 	Hourly Rates. 	Employees 	serving 	in
the 	following 	classifications 	shall 	be paid
flat 	rates per hour as 	indicated:
Adult Teacher, 	Flat Rate Day-to-Day
Substitute 	$25.82
Adult Teacher, 	Staff Development 	$25.82
Adult Teacher, 	Temporary Classes 	$25.82
Differential, 	JTPA Work Experience 	$11.73
Extended 	Counseling/Advisement
Assignment, Hourly 	$23.89
Extended Teaching Assignment, 	Hourly 	$18.46
Supplemental 	Driver 	Training
Assignment 	$12.92
Thomas 	Killeen, 	director of personnel 	research and analysis
for the 	District, 	testified that the District unilaterally
selects 	either 	the 	"Extended 	Counseling/Advisement Assignment,
Hourly" 	rate or the 	"Extended Teaching Assignment, 	Hourly," 	rate
when a 	new program requires 	certificated personnel. 	This
decision 	is 	based on the 	District's 	evaluation of 	the 	employees'
level of duties 	and responsibility. 	According to Killeen, 	the
District 	has 	done 	this 	in the past with no 	negotiations
request(s) 	from UTLA. 	With the exception of the Home/Hospital
Program, 	this 	occurred 	in all 	of the after-school programs
referenced on page 	four.
Killeen admitted that 	the 	District 	did 	engage 	in
negotiations with UTLA over the 	rate 	to be paid to 	teachers 	in
the Home/Hospital 	Program. 	As 	a result of 	those negotiations,
3The dollar amounts 	shown were 	applicable to 	the 	1985-86
school year. 	Higher rates 	for 	subsequent years 	have been
negotiated.
55

teachers who work 	in that program are paid 	their 	"regular hourly
rate" 	as 	opposed to 	any of 	the rates 	set 	forth 	in Appendix E,
section 	6.0. 	The 	District 	agreed to 	the 	"regular hourly rate"
for 	the 	Home/Hospital 	Program because 	it 	involved greater
instructional 	services 	than the 	after-school programs 	which were
directed 	towards 	"counseling 	and advisement." 	In addition the
Home/Hospital 	Program is 	an average daily attendance 	(ADA) 	-
funded program. 	The District gave 	this 	factor greater weight 	in
the 	concluding that 	it 	is 	an instructional program 	instead of 	a
counseling 	program.
Whenever the 	District 	initiated 	a 	new after-school 	program,
UTLA would 	invariably 	assert 	that 	the 	teachers 	should be 	paid
their regular hourly 	rate 	for 	their participation 	in that
program. 	The District would 	listen to UTLA and, 	at times,
discuss 	the 	salary 	issue with 	it. 	Then the 	District would 	select
whichever of 	the 	rates 	set 	forth 	in 	section 	6.0 	of Appendix 	E 	it
felt was 	most appropriate. 	It never negotiated the 	salary 	rate
to be paid 	in any of 	these 	after-school programs. 	UTLA never
filed 	either 	an unfair 	labor practice 	or 	a 	grievance 	over 	these
District 	actions. 	Nor has 	any teacher ever 	filed a 	grievance
with 	respect 	to 	the 	rate 	of 	pay received 	for participating 	in an
after-school 	program.
In August of 	1987, 	new legislation was 	enacted requiring
school 	districts 	to 	identify those 	children 	-- 	ages 	three 	to 	five
-- who have 	special 	needs 	and to develop 	a program to 	address
those needs. 	The goal of 	the program is 	to provide 	early
6

intervention 	services 	that prepare 	children 	for 	future 	school
success, 	and to reduce their needs 	for 	special 	education in both
elementary 	and 	secondary 	schools.
The 	District 	named 	Shizuko Akasaki 	to 	be 	the 	administrative
coordinator 	for 	the 	newly-created 	early 	education program. 	This
program was 	placed within the 	District's 	division of 	special
education. 	In order to 	receive 	funding 	from the 	State 	for the
program, 	the District had to identify, 	by December 	1, 	1987, 	and,
again, 	by April 	1, 	1988, 	the number of children it expected would
participate 	in the program. 	Eventually 	2,200 	children were
identified 	as 	being 	eligible 	for 	the program.
On November 2, 	1987, 	the District first disseminated
information regarding the program to the 	elementary 	schools. 	The
program was 	not 	originally 	conceived 	as 	an after-school program.
However, 	it became necessary to 	structure 	it 	in that manner due
to 	the 	shortage 	of 	special 	education teachers 	during the 	regular
school day.
Preliminary descriptions 	of 	the program 	showed 	a 	heavy
academic, 	as opposed to a counseling, 	emphasis.
Descriptions 	included 	such terms 	as:
. 	. 	. 	interactive instruction, curriculum
structure which 	. 	. 	. provides the content in
the areas of the self, 	the family, 	the home,
and the environment, 	and . 	. 	. 	uses language
development as 	a basis 	for all activities.
However, 	the 	early education program is 	not ADA-funded.
The 	District's 	January 	4, 	1988 	memorandum describing the
program to 	its teachers 	states; 	"Service options will 	include,
7
7

but 	not be 	limited 	to, 	both 	classroom assistance to 	the 	child and
teacher as well 	as 	a parent 	education program." 	Emphasis 	on the
child's 	total 	educational 	development 	is 	the goal 	of 	the 	service
delivery models.
A team-teaching approach 	is 	used. 	The 	typical 	team,
comprised of 	one 	special 	education teacher, 	one regular program
teacher, 	and one 	special 	education assistant, 	meets with the
child 	and 	the parents 	for 	one 	and one-half 	hour 	sessions 	per
week. 	Some 	sessions 	are held on Saturdays. 	The teachers 	receive
one-half 	hour 	of paid preparation time 	for 	each 	session taught.
Part 	of 	the program is 	aimed at teaching the parents 	how to 	take
what 	is 	taught 	in the 	classroom and use 	it 	in their home 	so 	they
can better help 	their child prepare 	for 	kindergarten. 	Hopefully
this 	will prevent the need 	for 	special 	education 	services 	later
on.
On December 	1, 	1987, 	at a previously scheduled negotiations
meeting 	for the new CBA, 	the 	District 	informed UTLA that 	the 	new
•program was 	going to be 	implemented. 	John Britz, 	UTLA's 	chief
negotiator, 	stated that the matter had to be negotiated. 	He
immediately 	raised 	the 	issue 	of 	the 	salary 	to 	be paid 	to 	the
teachers 	involved 	in the program. 	He also 	asked the 	District's
representatives 	for any 	available 	information about 	the program.
At the next negotiating 	session, 	held the next day, 	the
District 	gave 	UTLA a 	summary 	of 	the 	statute 	creating 	the program.
Britz 	said that he was 	more 	interested 	in a 	copy of 	the
District's 	implementation program 	rather 	than a 	one-page 	summary
8

of the law. 	The District, 	in response to Britz' 	query regarding
salary, 	stated that 	it believed that the 	section 	6.0, 	Appendix 	E,
salary rate 	for 	"Extended Counseling/Advisement, 	Hourly" 	was 	the
proper 	salary rate 	for the teachers. 	The CBA rate at 	the time
was 	$23.89 per hour. 	However, 	the District did not take a 	final
position on the 	issue as 	there was 	no District board direction on
the 	subject.
On December 	14, 	1987, 	in a telephone conversation between
Britz, 	Richard N. 	Fisher, 	the District's chief negotiator, 	and
Shirley Woo, 	a District assistant 	superintendent, 	Britz was 	told
that 	the 	District's 	board of 	education had 	approved 	the 	"Extended
Counseling/Advisement, 	Hourly" 	rate 	for teachers participating 	in
the 	early 	education program. 	Britz 	suggested 	the 	District
reconsider 	its 	action 	since 	there had been no 	negotiations 	on the
program and UTLA believed 	the 	appropriate 	rate was 	the 	teachers'
hourly rate. 	He also told the 	District 	representatives 	that 	its
action was 	forcing UTLA to 	file an unfair practice 	charge.
Additionally, 	he asked 	for any additional 	available 	information
on the program. 	Woo 	agreed 	to 	forward 	another 	summary 	of 	the
program which had 	just been prepared by Akasaki. 	Akasaki 	had
prepared this 	material 	in anticipation of 	submitting 	such
information to the State department of education, 	as 	a part of
the yearly 	funding process.
. . .
On December 	15, 	1987, 	Woo sent this three-page summary to
Britz. 	The parties 	at that time were 	scheduled to meet again on
9
9

January 	7, 	1988, 	concerning the program. 	The meeting was 	later
reset for January 	14, 	1988.
Sometime 	later 	in December 	1987, 	Woo asked Akasaki 	to
compile 	information about 	the program 	for presentation to 	UTLA.
Akasaki put together a 	"booklet" 	of documents 	that 	included a
copy of 	the 	law, 	materials used in the 	screening of 	children,
copies 	of the 	individual 	educational program 	(IEP) 	plan 	sheets,
and descriptions 	of 	the 	service 	delivery 	aspects 	of 	the program.
In the January 	4, 	1988 	memorandum to the certificated
employees 	referenced 	earlier, 	the 	District 	explained the
features, 	responsibilities, 	hours and pay rates 	for the program.
Interested 	employees 	were 	asked 	to 	submit 	applications 	prior 	to
January 28, 	1988. 	For the first time, 	the program was described
as 	one 	that would 	"provide 	counseling 	and 	advisement 	services 	to
eligible children." 	Akasaki 	explained, 	at the hearing, 	that the
employee/teachers 	would 	be 	counseling 	students 	and 	their parents
on coordinating 	skills 	taught at 	school 	and life at home, 	rather
than teaching students. 	In addition, 	District employees 	other
than teachers, 	such as psychologists, 	nurses, 	mental health
workers 	and psychiatric 	social workers, 	were expected to, 	and
have participated 	in, 	the program at the 	same 	section 	6.0,
Appendix E wage rate as 	the teachers.
.
The parties 	met 	to discuss 	the 	early 	education program 	on
January 	14, 	1988. 	At that meeting, 	Britz complained about the
lack 	of 	information that 	had been provided by 	the 	District
concerning the program. 	It was 	at this 	meeting that UTLA
10

received the 	"booklet" 	of 	information prepared by Akasaki 	in
December 	1987. 	UTLA was 	not 	satisfied with the materials
provided. 	According to UTLA, 	it only received 	flyers 	that had
been 	sent 	out 	to the 	teachers 	and a 	summary of 	the 	enacting
statute, 	but did not receive 	a 	completed document regarding 	the
"essence" 	of 	the program. 	Nor did 	it receive any of the
financial 	or 	budgeting 	information pertinent 	to 	the program.
During the January 	14 	meeting, 	the parties 	did discuss 	the
manner 	in which the 	salary rate was 	arrived at, 	the 	cost of 	the
program, 	possibility of 	mileage being provided and the 	number of
students 	expected to participate. 	The 	District 	stated that 	the
program-mandated time lines were very strict, 	therefore, 	it was
necessary 	to 	move 	forward 	quickly. 	The parties 	concluded 	that
they did 	not have 	any areas 	of 	dispute 	about 	the program other
than the 	appropriate 	salary 	rate 	for 	the participating 	teachers.
During 	further discussion of the 	salary issue, 	UTLA
reiterated 	its 	demand 	for 	each 	individual 	teacher's 	hourly 	rate,
plus 	additional 	pay 	for 	any 	Saturday work performed. 	The
District 	reiterated 	its 	position that 	the 	rate 	of pay had been
established, 	explaining that the 	"board has 	made 	its 	decision."
During this 	latter discussion, 	Britz 	said that he 	felt the
parties were 	"at impasse" 	on this 	issue.
Britz 	testified that he used the term 	"impasse" 	to denote 	an
irreconcilable 	conflict 	rather than 	in the 	technical 	labor
relations 	sense. 	District 	representative 	and negotiating team
member 	Roger 	Johnson 	testified 	that 	he 	regarded 	Britz's 	statement
11

to be a 	formal declaration of 	impasse on the 	salary 	issue. 	To
Johnson this 	meant 	setting the 	issue aside 	for discussion at 	a
later time; 	if and when the parties went to 	impasse on other
negotiations 	issues.
UTLA and 	the 	District 	did 	not 	negotiate 	over 	the 	salary
rates 	for the 	early education program after the January 	14, 	1988
meeting. 	The 	District 	commenced the 	early 	education program 	in
February 	1988. 	Eventually, 	about 750 various 	certificated
personnel 	participated 	in 	the 	program.
Following the January 	14 	meeting, 	UTLA and the District had
one 	other brief 	discussion during 	their 	successor 	agreement
negotiations 	about 	the hourly pay 	rate 	for 	the 	early 	education
program. 	The parties were discussing the hourly rate 	in
reference 	to 	another 	topic 	when 	the 	early 	education program pay
rate 	issue was 	mentioned. 	No 	agreement was 	reached on this 	issue
however.
When the parties 	submitted 	their negotiations 	to 	the
statutory 	impasse procedures 	in November 	1988,4 the 	issue 	of 	the
hourly rate of pay was 	included, 	but not as 	it pertained to 	the
early 	education program.
On May 	10, 	1988, 	the Charging Party filed the instant
charge. 	After May 	1988, 	UTLA consistently proposed 	in 	successor
4The 	statutory 	impasse procedures 	are 	contained 	in 	section
3548, 	et 	seq.
Official notice 	is 	taken of 	impasse file Case No. 	LA-M-1950
(LA-F-375), 	maintained in the Los Angeles PERB office. 	This 	file
shows 	that 	PERB determined 	the 	existence 	of 	impasse 	between 	the
parties on November 	16, 	1988.
12

agreement 	negotiations 	that 	teachers 	participating 	in any 	after-
schobl program be paid their 	individual 	hourly rates, 	rather than
a 	section 6.0, 	Appendix E rate.
UTLA's 	early 	education program 	salary proposal was 	still 	on
the 	table when the parties went 	through 	the 	statutory 	impasse
procedures. 	However, 	this 	issue was 	not submitted to the 	fact-
finding panel 	as 	an unresolved 	issue.
The District never agreed to UTLA's proposal. 	The 	1988-91
CBA contains 	the 	same 	language 	in 	section 	6.0 	of Appendix 	E 	that
was 	in the previous 	CBA.
Article V of 	1986-88 	CBA contained 	the 	grievance procedure.
Section 	1.0 	defines 	a 	"grievance" 	and parties who may 	file
grievances 	as defined in the CBA. 	This 	section permits 	UTLA to
file grievances 	on its 	own behalf, 	"limited to rights 	expressly
granted to 	'UTLA' 	throughout this Agreement."
Section 	19.0, 	et seq, 	of Article V provides 	for final and
binding 	arbitration 	awards 	upon parties 	invoking 	the 	contractual
grievance 	machinery.
ISSUES
1. 	Whether the charge 	should be deferred to 	the
contractual 	grievance procedure 	and 	the 	complaint 	dismissed?
2. 	If not, 	did the Respondent violate section 3543.5(c),
and derivatively 	section 3543.5(b), 	by unilaterally 	setting the
hourly 	salary rate 	for 	teachers 	participating 	in the 	early
education 	program?
13

3. 	Did the Respondent also violate 	section 	3543.5(c) 	by
failing 	to provide 	the 	Charging 	Party with 	requested 	information?
DISCUSSION
1. 	Deferral to Arbitration
Respondent 	raised 	the defense 	of 	deferral 	to 	arbitration 	for
the 	first time 	in its post-hearing brief. 	It asserts 	that under
the 	standards 	for deferral 	established by 	the 	Board 	in Lake
Elinsore School District 	(1987) 	PERB Decision No. 	646, 	the
matters 	alleged 	in the 	complaint 	should be 	deferred 	to 	the
contractual 	grievance machinery.5 In 	support of 	this 	defense,
the District asserts 	that 	(1) 	UTLA has 	the 	right under Article V,
section 	1.0 	of 	the CBA to 	grieve 	the 	District's 	violation of
express terms of the agreement, 	(2) 	the CBA covers 	the matter at
issue, 	and 	(3) 	the CBA culminates 	in final and binding
arbitration.
The District 	contends 	that deferral 	to 	arbitration 	is
appropriate 	in this 	case because the 	only 	issue here 	is whether
the 	language of 	section 	6.0 	of Appendix 	E 	is 	applicable 	to 	the
early education program. 	UTLA claims 	that 	the 	language 	is
inapplicable. 	The District claims 	that 	it 	is wholly applicable.
5Board Regulation 	32646 	provides 	that 	if the 	Respondent
believes that the dispute 	is 	subject to binding arbitration, 	it
shall 	assert 	such a defense 	in 	its 	answer to the 	complaint 	and
move to dismiss the complaint. 	Cal. Admin. 	Code, 	tit. 	8, 	sec.
32646.
Respondent did not 	assert 	this 	defense 	in 	its 	answer or
during the hearing. 	However, 	since deferral to arbitration is 	a
jurisdictional 	question, 	the 	issue must be 	considered
notwithstanding the 	timing of 	this 	argument. 	See 	Lake 	Elsinore
School District. 	supra.
14
, 5

Thus, 	the District argues, 	UTLA, 	in essence, 	is alleging that the
District 	violated 	the CBA. . . by wrongfully 	applying 	the 	section 	6.0
salary 	rate 	to 	the 	early 	education program participants.
The 	original 	unfair practice 	charge 	filed by 	UTLA alleged
that 	certain 	conduct by 	the 	District violated 	the 	statutory 	duty
to 	meet 	and 	negotiate 	in good 	faith proscribed by 	section
3543.5(c). 	The PERB complaint alleges 	that the District 	failed
and 	refused 	to bargain 	in good 	faith when 	it 	implemented 	the
early 	education program 	and 	hired 	teachers 	at 	a 	flat 	hourly 	rate
contained 	in 	section 	6.0 	while 	the parties were 	negotiating 	over
the 	subject. 	Nothing in the 	charge or the 	complaint alleges 	that
the 	District 	violated 	the 	CBA by 	its 	application of 	section 	6.0
of Appendix 	E.
After a 	review of 	the Respondent's 	argument and the CBA
itself, 	it 	is 	concluded that the CBA does 	not 	cover the matter at
issue. 	While 	it is true that the CBA contains 	a binding
arbitration provision, 	it does 	not 	contain a provision
'	proscribing 	the 	District's 	failure 	to meet 	and negotiate 	in 	good
faith with 	UTLA with 	regard 	to matters 	within the 	scope 	of
15

negotiations.6 Wages 	is 	clearly a 	matter within the 	scope 	of
representation.
Even 	if 	section 	6.0 	of Appendix 	E were held to 	apply to 	the
matter in dispute, 	there 	is 	no 	language 	in this provision
specifically referring to 	the 	early 	education program. 	In 	short,
the 	conduct 	alleged 	in the 	complaint 	is 	not prohibited by an
express provision of the CBA. 	Hence, 	a grievance alleging bad
faith 	conduct 	in meeting 	and 	negotiating 	over 	a 	negotiable
subject would 	not 	be 	cognizable before 	an arbitrator.
In addition, 	even if 	there existed a provision 	in the CBA
prohibiting the 	conduct 	alleged 	in the 	complaint, 	the grievance
procedure does 	not 	cover the matter at 	issue. 	This 	is 	so because
the Charging Party does 	not have the 	right to 	file 	a 	grievance 	in
its 	own name 	to vindicate 	its 	statutory right 	to 	expect 	good
faith negotiations 	from the 	Respondent. 	Under the grievance
procedure, 	UTLA has 	the right to 	file a grievance to address 	only
contractual 	rights 	expressly 	granted 	to 	the 	Charging 	Party 	in 	the
CBA. 	The CBA does 	not 	expressly grant UTLA the 	right 	to 	good
6Section 3543.2 provides, 	in pertinent part, 	as follows
(a) 	The 	scope of 	representation shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
of 	employment. 	"Terms and conditions 	of
employment" 	mean health and welfare benefits
. 	. 	. 	, leave, transfer and reassignment
policies, 	safety conditions of employment,
class 	size, 	procedures to be used for the
evaluation of employees, 	organizational
security . 	. 	. 	, procedures for processing
grievances . 	. 	. 	, and the layoff of
probationary 	certificated 	school 	district
employees 	. . . .
16

faith 	negotiations with 	the 	District 	on matters within the 	scope
of representation. 	Thus, 	UTLA does not have the right to grieve
the 	allegations 	in the 	complaint.
For these reasons, 	Respondent's deferral to arbitration
defense 	must 	therefore 	be 	rejected.
2. 	Unilateral Change Allegation
It 	is 	unlawful 	for a public 	school 	employer to 	"refuse 	or
fail 	to 	meet 	and negotiate 	in good 	faith with 	an 	exclusive
representative" 	about a matter within the 	scope 	of 	representation
(Sec. 	3543.3). 	Moreover, 	a unilateral change in terms and
conditions 	of 	employment within the 	scope of representation is,
absent a valid defense, 	a per se refusal to negotiate. 	Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51; 	San
Mateo County Community College 	District 	(1979) 	PERB Decision No.
94; 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].
An unlawful 	unilateral 	change will 	be 	found where 	the
charging party proves, 	by a preponderance of the evidence, 	that
an 	employer unilaterally altered 	an 	established policy. 	Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196.
The 	nature 	of 	existing policy 	is 	a 	question of 	fact 	to be
determined 	from an examination of 	the 	record as 	a whole. 	It 	may
be 	embodied 	in the 	terms 	of 	a 	collective 	agreement 	(Grant 	Joint
Union High School District, 	supra) 	or, 	where a contract is 	silent
or ambiguous 	to a policy, 	it maybe 	ascertained by examining past
practice 	or bargaining history. 	Marysville 	Joint 	Unified 	School
17

District 	(1983) 	PERB Decision No. 	314; 	Rio Hondo Community
College District 	(1982) 	PERB Decision No. 	279.
An 	employer's 	unlawful 	failure 	and 	refusal 	to 	negotiate
concurrently violates 	an 	exclusive 	representative's 	right 	to
represent unit members 	in their employment relations. 	San
Francisco Community College 	District 	(1979) 	PERB Decision No.
105.
There 	is 	little doubt 	that the unilateral 	implementation of
a 	salary rate 	is 	a prima 	facie 	showing of 	a violation of 	section
3543.5(c). 	It is axiomatic 	that the subject of 	salaries 	is
within the mandatory 	scope of 	representation. 	The 	crucial 	issue
here 	lies with the validity of 	the 	Respondent's 	defenses 	to 	its
admitted 	unilateral 	action.
UTLA contends 	that the 	District had no 	intention to, 	and did
not, 	engage 	in meaningful negotiations with UTLA about the early
education program when the parties 	discussed the 	matter 	in
December 	1987 	and January 	1988. 	UTLA further maintains 	that
inasmuch as 	the 	District 	board decided 	the 	rate 	of pay 	after 	the
parties 	had met only two times 	in December 	1987, 	and before 	their
meeting in January 	1988, 	clearly the parties' 	meeting of January
14, 	1988, was nothing more than a 	"sham."
The 	District presents 	three main defenses 	to 	the 	charge 	of
unilateral 	action. 	The 	first defense 	is 	that the decision about
the 	flat hourly rate 	of pay was 	in compliance with 	express
contract terms. 	Section 6.0 of Appendix E, 	it is 	claimed, 	is
applicable 	to 	all 	after-school 	programs 	and 	since 	the program at
. ... .
18

issue was 	an after-school program, 	the CBA required the 	District
to apply, the 	section 6.0 hourly, rate to the program's
certificated 	participants.
In order 	for the Respondent's 	action to be 	excused by
compliance with a 	contractual 	term, 	the 	contract 	language must 	be
"clear and 	unambiguous." 	Marysville 	Joint 	Unified 	School
District, 	supra. 	The record 	shows 	that 	the 	language 	in 	section
6.0 	of Appendix 	E 	existed 	in prior CBAs 	between the parties 	long
before 	they discussed the 	early 	education program. 	As 	concluded
earlier, 	there 	is 	nothing 	in the express 	language of 	section 	6.0
that 	specifically refers 	to 	the rate 	of pay 	for participants 	in
the 	early education program. 	Nor 	is 	there 	language 	anywhere 	else
in the CBA addressing the 	subject, 	or that allows 	the District to
unilaterally 	set the 	rate 	of pay.
Two District witnesses, 	Roger Johnson and Thomas 	Killeen,
admitted 	in testimony that 	the 	CBA does 	not 	cover 	the 	selection
of pay rates 	for any after-school programs 	(including the 	early....
education program), 	other than coaching. 	Johnson has been on the
District negotiating team 	since 	1984. 	He 	is 	quite 	familiar with
past and present 	contractual provisions. 	Killeen, 	the director
of personnel 	research and analysis, 	has 	also been a member of 	the
District negotiating team 	for 	several years. 	He 	is 	familiar with
the District's 	after-school programs 	and the 	its practice
regarding establishing the rates 	of pay 	for 	such programs. 	Both
witnesses 	contradicted 	their 	own 	testimony by 	stating 	that
section 	6.0 	did 	authorize 	the 	District's 	disputed 	action.
* .
19

However, 	the District's position was undercut by Johnson's
further testimony that the 	rates 	adopted by 	the 	District were
subject 	to 	change during the 	negotiations 	because wages 	are
always 	a 	negotiable 	item.
A review of 	the 	language 	in 	section 	6.0 	of Appendix 	E 	shows
that 	it does 	not 	"clearly and unambiguously" 	apply to the early
education program. 	Thus 	it cannot be concluded, 	on the basis 	on
the plain meaning of the 	contract 	language 	itself, 	that the
District 	acted 	in a manner 	consistent with 	its 	contractual
obligation. 	This defense is 	thus rejected.
- .
The 	District alternatively argues 	that 	if 	it 	is 	deemed 	that
its 	action was 	not 	in compliance with 	explicit 	contractual 	terms,
it was 	in accordance with a 	long-established past practice 	of
unilaterally 	setting hourly pay 	rates 	for 	after-school 	programs
similar to 	the 	early 	education program.
Prior 	agreements 	between the parties 	contain provisions 	very
similar to 	section 	6.0. 	Of 	the numerous 	after-school programs
listed in the hearing, 	all hourly rates, 	except one, 	were based
on 	section 	6.0 	rates. 	The 	District maintains 	that 	in each after-
school 	program previously 	established, 	UTLA had 	requested 	that
the 	teachers 	receive payment 	based 	on their 	individual 	hourly
rate. 	However, 	in each case the District had decided to proceed
with the 	flat hourly 	rates 	provided for 	in 	section 	6.0. 	Prior 	to
the 	instant 	case, 	it 	is 	asserted that UTLA had 	filed no prior
grievances 	or unfair practice 	charges 	challenging 	the 	District's
20
'

method 	of 	determining 	salary 	rates 	for the participants 	in 	the
various 	after-school programs.	. .
If 	the 	District's 	action was 	not 	in accordance with an
established past practice 	of 	unilaterally 	setting 	hourly 	pay
rates 	for 	after-school programs 	like 	the 	early 	education program,
then the 	District 	must 	be 	held 	to 	have 	violated 	section
3543.5(c). 	The critical question, 	thus, 	is whether there was an
established past practice 	and whether the 	District's 	action, 	in
this 	instance, 	was 	consistent with the past practice.
In 	support of 	this 	defense the 	District presented evidence
regarding 	several 	after-school 	programs 	for which the 	District
had unilaterally 	selected 	the 	flat hourly rates 	of 	pay 	for
teachers provided 	for 	in 	section 	6.0 	of Appendix E. 	All 	the
programs 	presented provided 	tutorial 	assistance 	or 	supplemental
counseling and advisement, 	but not direct 	instructions. 	For all
these programs, 	teachers were paid at 	either the 	extended
teaching 	assignment 	or 	counseling/advisement 	assignment 	flat
hourly rates 	in 	section 	6.0 	of Appendix 	E. 	The determination
about which 	of 	these 	rates 	would 	apply was 	based 	on 	the
District's 	evaluation of the teachers' 	level of duties 	and
responsibilities 	in each of these programs. 	In the 	case of 	the
one 	after-school 	program 	over which 	UTLA 	and 	the 	District
negotiated 	the 	regularly 	hourly 	rate 	for 	the participating
teachers, 	it 	involved direct instructions 	to the 	students. 	This
exception, 	the home/hospital program, 	includes a regular
21

assignment 	for 	some 	teachers 	and 	an after-school 	assignment 	for
others.
The 	District describes 	the 	early 	education program as 	one
providing 	"counseling and 	advisement 	services 	to 	eligible
children." 	However, 	unlike the other after-school programs
presented 	for 	comparison, 	the 	early education program also
describes academic 	content, 	taught 	in a classroom setting. 	It
also refers 	to the use of 	IEPs as 	student assessment tools. 	It
also 	uses 	both 	special 	education and 	regular teachers who 	are
given paid preparation time 	to prepare 	for 	each 	session.
Additionally, 	the 	" 	multi-disciplinary team" 	approach, 	using
certificated personnel 	other than teachers, 	is 	an integral
feature 	of 	this program. 	None 	of 	these 	features were noted with
respect 	to 	the 	after-school 	programs 	presented 	for 	comparison.
In 	sum, 	the 	early education program 	is 	not 	either 	identical 	or
similar 	to 	the 	after-school programs 	referenced by 	the 	District.
In Pajaro Valley Unified School District, 	supra. 	where the
Board was 	considering the establishment of 	a past practice, 	the
Board 	concluded that 	the 	District had proven a 	"historic 	and
accepted past 	practice 	consistent with 	the 	challenged 	action."
Here 	the 	District has 	not proven a 	"historic 	and accepted" 	past
practice 	of 	unilaterally 	setting 	the 	salary 	rate 	for 	teachers
participating 	in an after-school program 	such as 	the 	early
education program. 	While this 	program appears 	to have 	some 	of
the 	counseling and advisement 	components 	of 	the 	other after-
school tutorial-type programs, 	it also resembles the home/
22

hospital program in that 	it provides 	direct 	instruction to 	the
students, (in this case, 	in a classroom setting. 	In actuality it
appears 	to be 	somewhat of 	a 	"hybrid" 	between the traditional
after-school 	programs 	and the 	regular programs 	provided by 	the
special 	education division. 	In fact, 	the coordinator of the
program, 	Shizuko Akasaki, 	testified that the program was
originally 	conceived as 	a 	regular 	special 	education program.
However, 	the District decided to make 	it an after-school program
only because 	of 	the 	shortage of 	special 	education teachers.
For these reasons, 	it 	is 	concluded that the District has
failed to prove the existence of a, long-standing past practice of
unilaterally 	determining 	the 	salary 	rate 	for 	after-school
programs 	like 	the 	early 	education program.
Additionally, 	it 	is 	clear that UTLA never 	"clearly and
unmistakenly waived 	its 	right 	to 	negotiate 	over 	the 	salary 	rates
for after-school programs 	or the 	early education program. 	Amador
Valley Joint Union High School 	District 	(1987) 	PERB Decision No.
74. 	Both parties 	acknowledge 	that 	UTLA never agreed with the
District 	about 	the 	hourly rates 	paid 	for most 	after-school
programs. 	The 	fact that UTLA never 	filed grievances 	or unfair
practice 	charges 	about 	the 	District's 	prior unilateral 	salary
decisions 	does 	not 	indicate 	that 	it waived the 	right to 	negotiate
the subject in this instance. 	For this reason, 	it is 	concluded
that the District's 	conduct 	is 	not 	excused by a 	showing of 	a
"historic 	and 	accepted past 	practice 	consistent with 	the
23

challenged 	action." 	Pajaro Valley 	Unified 	School 	District,
supra.
As 	a 	final defense, 	the District maintains 	that 	even though
not obligated to negotiate with UTLA over this matter, 	it did 	so
and bargained the 	issue to 	impasse. 	The 	District 	acknowledges
that 	this 	specific 	dispute was 	never taken through the 	statutory-
impasse procedures. 	However, 	it asserts that its 	salary
decision, 	which was 	implemented after UTLA declared impasse, 	was
a 	reasonable 	accommodation between 	the 	District's 	obligation 	to
negotiate 	and 	its 	right to 	exercise 	its 	managerial prerogative
essential to the achievement of 	the District's mission. 	No
competent 	case 	authority 	is 	cited 	for this proposition.
The District does 	not dispute 	that 	salary rates 	are 	a
mandatory 	subject of negotiations. 	It also 	concedes 	that UTLA
sought 	negotiations 	on this 	subject 	in connection with the
District's 	intended 	implementation 	of 	the 	early 	education
program. 	However, 	in this defense, 	it urges PERB to excuse or
justify 	its 	conduct 	on grounds 	that 	(1) 	UTLA declared 	impasse on
the 	salary item during the course of negotiations, 	and 	(2) 	that
the 	even 	if 	the 	statutory 	impasse procedure was 	not 	exhausted
prior to 	its 	implementation of 	the 	unilateral 	salary decision,
the District's action was, 	in part, 	a response to the urgency of
a 	State-mandated 	time 	line 	for 	starting 	the program.
The District maintains 	in this 	argument that 	it 	fully
complied with 	its 	bargaining 	obligation because 	it 	acted 	on 	its
salary decision after UTLA's 	chief 	negotiator, 	John Britz,
S -
24

declared the parties to be 	"at impasse" 	on January 	14, 	1988.
UTLA argues 	that Britz' 	statement about 	"impasse" 	on January 	14,
1988, 	did not have the 	legal 	significance defined by the EERA.7
In any event, 	this matter was 	never 	submitted to PERB by 	either
party 	for a 	determination about 	the 	existence 	of 	an actual
impasse.
The 	evidence 	shows 	that while the parties were pursuing
negotiations 	about 	the 	early education program, 	the 	District
unilaterally 	determined 	the 	hourly 	rate 	of 	pay 	before 	either
reaching agreement with UTLA, 	or declaring that 	the parties 	were
at 	impasse 	exhausting the 	statutory impasse procedures. 	It 	is
clear that 	the 	District 	made 	a 	firm decision in mid-December
1987, 	about the 	salary issue or that the District 	showed any
flexibility 	in its position at the January 	14 meeting. 	There 	is
7Section 3540.1 defines 	"impasse" 	as meaning:
. 	. 	. 	[T]he parties to a dispute over matters
within the 	scope 	of 	representation have
reached 	a point 	in meeting 	and 	negotiating 	at
which their differences 	in positions 	are 	so
substantial 	or prolonged 	that 	future meetings
would be 	futile.
PERB Regulation 	32793(c) 	provides 	guidelines 	for determining
whether an impasse exists. 	It 	states:
In determining whether an impasse exists, 	the
Board 	shall 	investigate 	and may 	consider 	the
number 	and 	length 	of 	negotiating 	sessions
between the parties, 	the time period over
which the negotiations have occurred, 	the
extend to which the parties 	have made and
discussed counterproposals 	to 	each other, 	the
extent to which the parties 	have reached
tentative 	agreement 	on 	issues 	during 	the
negotiations, 	the extent to which unresolved
issues 	remain, 	and other relevant data.
25

no 	indication that 	the board's 	December action was 	made 	subject
to 	the 	final 	outcome 	of 	negotiations with UTLA over this 	issue.
In fact, 	the District refused to 	further discuss 	the 	salary 	issue
when the parties met on January 	14, 	1988. 	The finality of the
District's 	decision 	is 	underscored by the 	fact that 	the 	District
announced the 	opening 	for teaching positions 	on January 	4, 	1988,
and 	advertised 	the 	rate 	of pay 	adopted by the 	board 	in mid-
December 	1987.
Given the 	substance 	of 	the discussions 	between the parties
at their meetings on December 	1 and 2, 	1987, 	it is 	seriously
doubtful 	that 	the parties 	had 	reached 	impasse 	on the 	salary 	issue
at the January 	14, 	1988 meeting.
The District's 	argument that, 	notwithstanding its unilateral
action, 	it 	continued to negotiate this 	matter with UTLA to
impasse, 	is 	at odds with well-settled labor relations 	law of 	both
PERB and the National Labor Relations 	Board 	(NLRB). 	See Antioch
Unified School District 	(1985) 	PERB Decision No. 	515. 	If the
parties 	did reach impasse at the January 	14 meeting, 	it was 	only
because 	the 	District had taken unilateral 	action on a 	subject 	of
their negotiations 	before negotiations were 	completed. 	In 	such
case, 	the required element of good 	faith on the part of 	the
employer was destroyed. 	See, 	e.g., 	Amador Valley Joint Union
High School District, 	supra.
As 	a practical matter, 	it 	is 	clear that 	such a unilateral
action alters 	the balance 	of 	bargaining power held by 	the
parties. 	Where, 	as here, 	the District desired to change the
26
··f

status quo, 	it cannot, 	under the EERA, 	achieve that end until
such 	later time 	as 	it has 	completed 	its 	negotiating obligation.8
The 	District's 	reliance 	on the 	State-mandated 	time 	lines 	for
implementation of 	the 	early 	education program appears 	to 	also
raise 	a business 	or 	legal 	necessity defense 	to 	its 	unilateral
action. 	Even if this is 	so, 	the facts of this 	case do not
support 	the 	necessity 	for the unilateral 	adoption of 	the 	salary
rate while 	the parties were negotiating the matter.
The 	parties 	preliminarily 	discussed 	the program 	at 	their
December 	2, 	1987 	meeting. 	The District mentioned the deadlines
set by the 	State/but did not 	tell 	UTLA that 	"time was 	of 	the
essence" 	in reaching agreement on the rate of pay 	for program
participants. 	Even though the 	District determined the need to
implement this program in early 	1988, 	it has 	failed to 	show that
the program mandates 	required a 	final decision 	in December 	1987
about 	the wage rate 	to be paid to 	the 	certificated 	staff
participating 	in the program. 	See 	San Francisco Community
College District, 	supra.
It is concluded, 	therefore, 	that the District's action in
unilaterally 	determining 	the 	salary 	rate 	for 	certificated
employees 	in the 	early education program, 	without 	completing 	its
negotiating obligation with UTLA, 	was 	a 	refusal 	to negotiate
88 The parties 	did 	subsequently 	take 	a 	UTLA proposal 	through
the 	statutory 	impasse procedures 	in their 	successor 	agreement
negotiations 	that would require the District to pay the teachers'
individual 	hourly rates 	for 	all 	after-school programs.
Presumably, 	this 	proposal would have 	included the 	early 	education
program, 	but 	the parties 	did not 	specifically agree to 	include
this 	item in the 	impasse process.
27

about a matter within the 	scope 	of 	representation. 	This 	conduct
amounted to 	a 	"circumvention of 	the 	duty 	to 	negotiate which
frustrates 	the objectives of the 	[Act] 	as much as does 	a flat
refusal." 	See Pajaro Valley Unified School 	District, 	supra, 	at
p. 	5, 	citing NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177]. 	It
therefore violated section 3543.5(c).
This 	same 	conduct 	also violated 	section 3543.5(b) 	by denying
to UTLA rights 	guaranteed by the Act, 	including 	the right 	to
represent its members.9
C. 	Failure 	to Provide 	Requested 	Information
In this 	charge, 	UTLA asserts 	that the District 	failed to
provide 	requested 	information 	about 	the 	early 	education program
in a timely and complete manner. 	It 	is 	contended that the
information provided was 	given in a 	"piece meal" 	and 	incomplete
fashion, 	thereby 	impeding the Charging Party's 	ability to
effectively negotiate with 	the 	District 	on this 	subject.
The 	District 	responds 	to 	this 	allegation by 	contending 	that
it provided 	UTLA with all 	the 	information 	it possessed 	on 	the
early education program at the time of UTLA's 	requests. 	Further,
prior to 	this 	allegation being raised during the 	course 	of 	the
hearing, 	UTLA had never 	complained to 	the District 	about the
9Neither 	the 	charge 	nor the 	complaint 	alleged 	a 	derivative
violation of 	section 3543.5(a). 	However, 	had such an allegation
been charged, 	it would be 	further determined that this 	conduct
also derivatively violated 	section 	3543.5(a) 	because 	it 	abridged
the 	rights 	of 	the 	affected 	employees 	to be 	represented by 	their
exclusive representative. 	See Tahoe 	- 	Truckee Unified School
District (1988) PERB Decision No. 	668, 	and South Bay Union School
District 	(1990) 	PERB Decision No. 	791, 	for PERB precedent about
finding derivative 	violations.
28

content 	or timeliness 	of 	the 	information provided before 	the
January 	14, 	1998 meeting between the parties. 	Even then, 	the
only 	complaint was 	that 	the 	information had been provided 	on 	a
"piece meal" basis.
Settled PERB 	and NLRB 	case 	law recognizes 	that 	an 	exclusive
representative 	is 	entitled to 	information 	sufficient 	to 	enable 	it
to 	understand 	and 	intelligently discharge 	its 	duty 	to 	represent
bargaining unit members. 	Requested 	information must be 	furnished
for purposes 	of 	representing 	employees 	in negotiations 	for a
future 	contract 	and 	also 	for policing 	the 	administration of 	an
existing agreement. 	See Morris. 	The Developing Labor Law. 	2d ed.
(1983) p.. 610.
An 	employer's 	refusal 	to provide 	such 	information 	evidences
bad 	faith 	bargaining 	unless 	the 	employer 	can demonstrate 	adequate
reasons why 	it 	cannot 	supply the 	information. 	Stockton Unified
School District 	(1980) 	PERB Decision No. 	143; 	Azusa Unified
School District 	(1983) 	PERB Decision No. 	374; 	Modesto City
Schools 	and High School District 	(1985) 	PERB Decision No. 	518.
Once a 	good 	faith demand 	is 	made 	for relevant 	information,
it must 	be made 	available promptly and 	in a useful 	form.
Unreasonable 	delay 	in providing 	requested 	information 	is
tantamount to a 	failure to provide the 	information at all. 	A
delay of 	six months 	in providing 	information has 	been held a
failure 	to 	negotiate 	in good 	faith. 	Azusa 	Unified School
District, 	supra: 	see also John S. 	Swift Co.. 	Inc. 	(1959) 	124 NLRB
394 	[44 LRRM 1388]. 	Even a delay as 	short as two months, 	without
29

employer explanation, 	has been held to be a violation. 	Colonial
Press. 	Inc. 	(1973) 	204 NLRB 852 	[83 LRRM 1648]. 	The fact that an
employer ultimately 	furnishes 	the 	information does 	not 	excuse 	an
unreasonable delay. 	K & K Transportation Corp.. 	Inc. 	(1981) 	254
NLRB 722 	[106 LRRM 1138].
Once a demand for relevant information is made, 	the
information must be made available 	in a manner not 	so burdensome
or time-consuming as 	to 	impede the process 	of bargaining,
although 	not 	necessarily 	in the 	form requested by the 	union.
However, 	the 	employer may not 	simply present the 	information 	in
any 	form which it 	considers 	adequate but which 	is, 	nonetheless,
unsuitable 	for 	informed 	consideration by the union. 	See Morris.
The Developing Labor Law, 	supra. 	at pp. 	615-616; 	General Electric
Co. 	(1970) 	186 NLRB 14 	[75 LRRM 1265]; 	Colonial Press. 	Inc..
supra. 	Nonetheless, 	absent a 	showing that the employer 	failed to
provide 	information necessary 	and relevant 	to 	the 	exclusive
representative, 	no violation will be found.
The 	information was 	sought to 	enable UTLA to 	assess 	its
negotiating position 	concerning 	the 	District's 	plan 	to 	implement
the 	early education program. 	There 	is 	no dispute 	about whether
the 	information requested was 	relevant or necessary to 	UTLA. 	The
thrust 	of 	this 	allegation 	is 	that 	the District delayed 	for about
six weeks 	from the date of 	the 	Union's 	initial 	verbal 	request 	for
information on December 1, 	1987, 	until January 14, 	1988,
providing 	UTLA with 	sufficient 	and 	useful 	information 	about 	the
early 	education program.
30

On December 2, 	1987, 	UTLA was 	given a one-page 	summary of
the. . program and protested that 	it 	needed more detailed
information on the program, 	including a 	copy of the 	law,
budgetary material, 	and 	information about the 	service delivery
aspects 	of 	the program.
Despite 	UTLA's 	contention that this 	information was 	not
received until the parties met on January 	14, 	1988, 	the evidence
shows 	that 	the 	District 	sent a more 	complete 	summary of 	the
program, 	on or about December 	15, 	1987. 	This material was
prepared by 	the division of 	special 	education 	staff 	on about
December 	10, 	1987. 	It was mailed to UTLA with a cover letter
which 	also 	invited 	the 	UTLA to 	contact 	the 	District 	if 	additional
information was 	desired 	or needed. 	Although the 	summary did 	not
contain a 	specific 	budget 	for the program, 	it did contain a
summary 	of 	funding 	information which 	indicated the 	total 	amount
of 	funds 	that 	the District anticipated receiving during the 	1987-
88 	fiscal year. 	No 	specific program budget was 	available at that
time. 	It appears 	that 	somehow within UTLA's 	internal 	system of
information distribution, 	this material was 	not given to Britz,
its 	chief negotiator. 	Thus, 	when the parties met again on
January 	14, 	1988, 	Britz 	complained that the District had not
provided the 	information requested on December 	2, 	1987.
While 	UTLA 	contends 	that 	it 	never 	received 	the 	requested
information until January 	14, 	1988, 	it did not refute Woo's
declaration that 	the 	requested 	information was 	sent 	to 	UTLA on
December 	15, 	1987, 	the day after Britz requested it. 	Additional
31

material 	in the 	form of a 	"booklet" 	was 	given to UTLA at the
January 	14, 	1988 	meeting. 	Inasmuch as 	UTLA never 	informed 	the
District that 	it considered the December 	15 	or January 	14
information to be 	so deficit 	as 	to be unhelpful 	for 	informed
consideration, 	it cannot be concluded that the District
unreasonably delayed 	or 	failed 	to provide 	UTLA with 	information
about 	the 	early 	education program.
For these reasons, 	it 	is 	found that the Charging Party has
failed 	to 	establish 	that 	the 	District 	refused or 	failed 	to 	comply
with 	its 	request 	for 	information about 	the 	early 	education
program. 	This part of 	the 	charge and 	complaint must 	therefore be
DISMISSED.
REMEDY
Charging 	Party 	seeks 	an order requiring the 	District 	to
cease 	and desist 	from its 	unlawful 	conduct 	and 	such 	other
affirmative 	relief 	as 	is 	appropriate 	to 	remedy the violation.
In section 3541.5(c) 	the PERB is given:
. 	. 	. t h e power to issue a decision and order
directing 	an offending party 	to 	cease 	and
desist 	from the unfair practice 	and 	to 	take
such affirmative action, 	including but not
limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies 	of this 	chapter.
Where 	an 	employer unilaterally 	changes 	terms 	and 	conditions
of 	employment, 	the PERB typically orders 	the employer to 	cease
and desist 	from its 	unlawful 	action, 	to restore the 	status 	quo,
to post a notice to 	employees, 	to comply with 	its 	bargaining
obligations with the 	exclusive representative, 	and to make
32

employees whole 	for any 	losses 	they 	suffered 	as 	a 	result 	of 	the
unlawful 	unilateral 	change. 	Rio Hondo Community College 	District
(1983) 	PERB Decision No. 	292.
It 	has 	been 	found that 	the 	District 	violated 	the Act by
failing 	and 	refusing to bargain 	in good 	faith when 	it
unilaterally 	implemented 	a 	salary 	rate 	for 	teachers 	participating
in 	the 	early 	education program while 	negotiating 	this 	matter with
UTLA. 	A 	cease 	and desist order and the posting of 	a 	notice 	to
employees 	are appropriate remedies 	in this 	instance. 	A
bargaining order 	is 	also 	appropriate 	inasmuch as 	the 	District
took unilateral 	action before 	the parties 	had 	completed
negotiations 	on the 	subject.
Posting of 	a notice, 	signed by an authorized agent of 	the
District) 	will provide employees with notice that the District
has 	acted 	in an unlawful manner, 	is 	being required to cease 	and
desist 	from this 	activity and will 	comply with the 	order. 	It
effectuates 	the purposes 	of 	the 	EERA that 	employees 	be 	informed
of 	the 	resolution of 	the 	controversy and 	the 	District's 	readiness
to 	comply with the 	order remedy. 	Davis 	Unified 	School 	District,
et al. 	(1980) 	PERB Decision No. 	116; 	see also Placerville Union
School District 	(1978) 	PERB Decision No. 	69.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusion of 	law
and the entire record in this 	case, 	it is 	found that the Los
Angeles 	Unified 	School 	District violated 	section 	3543.5(c) 	and,
derivatively, 	(b) 	of the Educational Employment Relations Act.
33

Pursuant to Government Code section 3541.5(0), 	it is hereby
ordered that the Los Angeles 	Unified School District, 	its
governing board 	and 	its 	representative:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and negotiate 	in good 	faith with
United 	Teachers 	- 	Los Angeles 	by unilaterally determining 	the
rate 	of 	compensation 	for 	certificated bargaining 	unit 	employees
participating 	in 	the 	early 	education program.
2. 	Denying to United Teachers 	- 	Los Angeles 	rights
guaranteed to 	it by the Act, 	including the right to represent 	its
bargaining unit members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSE 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Upon request, 	negotiate in good faith with United
Teachers 	- 	Los Angeles 	concerning the rate of compensation for
certificated 	unit 	employees 	participating 	in 	the 	early 	education
program.
2. 	Within ten 	(10) 	work days 	from service of 	the
final decision in this matter, 	post at all 	school 	sites 	and all
other work 	locations 	where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the notices 	attached as 	an Appendix hereto,
signed by an authorized agent 	of 	the 	District. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive work
days. 	Reasonable 	steps 	shall be taken to 	ensure that this 	notice
is not reduced 	in size, 	defaced, 	altered or covered by any
material.
34

3. 	Upon issuance of a 	final decision, 	make written
-notification of 	the actions 	taken to 	comply with this 	order 	to
the 	Los Angeles 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with her 	instructions.
IT 	IS 	FURTHER ORDERED that 	all 	other allegations 	in the
charge and complaint in Case No. 	LA-CE-2751, 	as amended, 	are
hereby 	DISMISSED.
Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement of 	exceptions with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	if 	any,
relied upon 	for 	such exceptions. 	See California Administrative
Code, 	title 	8, 	section 32300. 	A document is considered 	"filed"
when actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
on the 	last day set 	for filing 	". 	. 	. o r when sent by telegraph
or 	certified or Express 	United States 	mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon 	each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany 	each copy 	served on a party or 	filed with the 	Board
35

itself. 	See California Administrative Code, 	title 8, 	sections
,3.2300, 	32305 and 32140.
Dated: 	February 21, 	1990
W. JEAN THOMAS
Administrative Law Judge
36