Glendora Unified School District (PERB 0876E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
GLENDORA TEACHERS ASSOCIATION,
Charging 	Party,
v.
GLENDORA UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3052
PERB Decision No. 	876
May 16, 	1991
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Appearances: 	California Teachers Association by Charles 	R.
Gustafson, 	Attorney, 	for the Glendora Teachers Association;
Parker, 	Covert & Chidester by Michael L. 	Owens, 	Attorney, 	for
Glendora 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by the Glendora
Teachers Association 	(GTA) 	of a Board agent's 	dismissal
(attached) 	of its unfair practice charge. 	In its charge, 	the
GTA 	alleged 	that 	the 	Glendora 	Unified 	School 	District 	(District)
violated sections 	3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA or Act)1 by unilaterally changing
JEERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
________________ )

certain 	terms 	and 	conditions 	of 	the 	collective 	bargaining
agreement. 	Specifically, 	GTA alleged that 	in granting a
counselor and unit member, 	Myra Boone 	(Boone), 	release time to
work 	a portion of 	her normal 	workday 	for 	another 	employer 	on
several 	occasions, 	the 	District unilaterally modified the 	salary
provision of 	the 	contract 	and other terms 	and 	conditions 	of
employment. 	The Board agent, 	after reviewing the original, 	first
amended 	and 	second amended 	charges, 	dismissed the 	allegations 	for
failure 	to 	state a prima 	facie 	case.
For the reasons 	stated below, 	the Board affirms 	the
dismissal.
The 	Charge
GTA alleged 	that 	the 	District permitted Boone 	to work 	for
another 	employer 	on 	several 	occasions 	during hours 	that 	she was
ordinarily required to work 	for the 	District. 	This 	action
allegedly 	constituted 	a 	change 	in the 	District's 	prior practice
of 	denying employees 	release time to 	earn additional 	income. 	GTA
further 	alleged 	the 	change 	in policy 	"is 	not within the 	scope 	of,
nor permitted by, 	Articles 	4.2, 	4.3 	and 	4.5" 	of the 	collective
bargaining agreement.2 In particular, 	GTA alleges 	the type of
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
2Article 	4.2 	provides:
N	
2

temporary 	absence 	contemplated 	by Articles 	4.2 	and 	4.3 	was 	not
the type of 	absence granted by the District 	in this 	case. 	GTA
characterized 	the 	temporary 	release 	of 	Boone 	as 	an 	"absence 	for
substantial periods 	of 	time 	on 	several 	days 	for the purpose 	of
earning 	additional 	money during the 	regular day."
GTA also alleged that Article 	4.5 	"does 	not by 	its 	terms, 	or
the intent of the parties, 	contemplate agreements 	to permit
'double-dipping' or the 	earning of 	two 	incomes 	for work to be
performed during the 	same period of 	time." 	GTA contends 	that 	the
"true meaning" 	of Articles 	4.2 	and 	4.3 	must be 	interpreted 	in
light 	of 	the 	criteria 	set 	forth 	in Article 	4.5 	which provides
Non-teaching 	[sic] 	employees will 	regularly
be on campus no 	less 	than seven 	(7) 	hours 	and
twenty 	(20) 	minutes 	not 	including a duty-
free 	forty 	(40) 	minute 	lunch period.
Article 	4.3 	provides:
Any 	temporary 	exception 	reducing 	hours 	in
Sections 	4.1 	and 	4.2 	shall 	be 	approved 	in
advance by the 	site 	administrator.
Article 	4.5 	provides:
The 	normal workday 	schedule(s) 	(which will
establish 	the 	beginning 	and 	ending time 	of
the workday) 	shall be 	set mutually by the
site 	administrator and 	the 	individual 	staff
member. 	In the 	event that mutual 	agreement
cannot be reached, 	the 	site Administrator's
decision 	shall 	be 	final 	except 	that 	such
decision 	shall 	be 	consistent with 	the 	other
provisions 	of 	this 	article 	and 	shall 	be based
on the 	educational needs 	of 	the 	school 	and
the professional 	need 	for teachers 	to 	be
available to students, parents, 	and
administrators.
33

that 	the 	decision 	to 	grant 	temporary 	exceptions 	must 	be 	"based 	on
the 	educational 	needs 	of 	the 	school 	and the professional 	need
for teachers 	to be available to 	students, 	parents 	and
administrators." 	GTA argues 	that 	allowing outside work 	for
"outside 	compensation" 	fails 	to meet 	the 	criteria 	established by
Article 	4.5. 	Finally, 	GTA alleged 	that 	the District's 	new policy
bestows 	a 	significant benefit 	concerning 	compensation 	and 	hours
to 	employees 	selected by 	the 	District without 	affording 	the
Association 	notice 	or opportunity 	to 	meet 	and 	negotiate 	the
change.
Board Agent's 	Dismissal
The 	Board 	agent 	dismissed 	the 	charge 	concluding 	that Article
4.5 	on 	its 	face 	addresses 	the 	"normal workday 	schedule" 	of 	staff
members 	and does 	not 	address 	the 	approval 	of 	temporary 	exceptions
to that norm. 	In contrast, 	Article 4.3, 	by its terms, 	deals
directly 	and 	exclusively with 	the 	approval 	of 	exceptions.
Referring to the 	specific 	language of the 	contract, 	the Board
agent 	noted that Article 	4.3 	states, 	"any temporary 	exception
reducing 	[regular on-campus] 	hours 	in 	sections 	4.1 	and 	4.2 	shall
be 	approved 	in advance by the 	site 	administrator." 	The 	Board
agent also noted that Boone's 	normal workday was 	7:30 	a.m. 	to
3:30 	p.m. 	but 	that 	the 	District 	granted permission 	for her 	to be
absent during 	a portion of 	these hours 	on four 	separate
occasions.3 	He 	concluded that 	these 	temporary reductions 	in
33According to the Board agent, 	Boone was permitted to be off
campus 	to 	conduct workshops 	for the 	Los Angeles 	County 	Department
of 	Education until 	11:00 	a.m. 	on September 	6 	and October 	15,
4

regular 	on-campus 	hours were 	clearly 	authorized by 	the plain
language 	of Article 	4.3.
The 	Board 	agent 	also 	concluded 	that 	the 	allegations 	failed
to 	establish 	the 	alleged 	change 	had 	a 	generalized 	effect 	or
continuing 	impact on the 	terms 	and 	conditions 	of 	employment 	of
bargaining unit members 	under Grant 	Joint 	Union High 	School
District 	(1982) 	PERB Decision No. 	196 	(Grant). 	Further,
rejecting GTA's 	contention that 	the 	District 	changed 	its 	practice
of denying requests 	for release time, 	the Board agent, 	citing
Marysville Joint Unified School 	District 	(1983) 	PERB Decision No.
314 	(Marysville), 	stated that the mere 	fact an employer has 	not
chosen to 	enforce 	its 	contractual 	rights 	in the past does 	not
mean, 	ipso facto, 	it is 	forever precluded from doing so.
Accordingly, 	the charge was dismissed.
GTA's 	Appeal
-
GTA 	contends 	on appeal 	that 	the 	Board 	agent 	decided 	factual
issues 	in dispute and, 	therefore, 	exceeded his 	authority in
investigating the 	charge. 	Citing Eastside 	Union School 	District
(1984) 	PERB Decision No. 	466, 	GTA notes that Board agents are not
empowered to 	"rule on the ultimate merits 	of a 	charge." 	GTA
further 	contends 	that the 	factual 	allegations 	in an unfair
practice 	charge 	are 	to be 	considered true 	for the purposes 	of
assessing 	the prima 	facie 	case 	and 	that 	the 	Board 	agent 	refused
to accept the allegations as true in this 	case. 	Thus, 	according
1990, 	and was permitted to 	leave campus 	at 	2:15 p.m. 	on
September 26, 	1990, 	and at 2:30 p.m. 	on December 7, 	1990.
55

to GTA, 	the 	Board agent 	exceeded his 	authority by deciding
contested 	factual 	issues 	during 	the 	investigation of 	the 	charge.
(Los Angeles 	Unified School District 	(Wightman) 	(1984) 	PERB
Decision No. 	473.)
Next, 	GTA argues 	that 	the 	contract 	language relied upon by
the District 	forms 	the basis 	of 	the District's 	action.
Therefore, 	the District's 	conduct 	in interpreting the 	contract to
grant temporary releases 	is 	a decision of 	general 	application
covering all members 	of 	the bargaining unit, 	and thus 	constitutes
a unilateral 	change 	in violation of the Act.
GTA 	further 	contends 	that 	the 	Board 	agent's 	reliance 	on 	the
contract 	language 	as 	authorizing the 	District's 	action 	is
misplaced. 	According to GTA, 	Article 	4.5 	only permits 	temporary
exceptions 	"based on the 	educational 	needs 	of 	the 	school 	and 	the
professional 	need 	for teachers 	to be 	available 	to 	students,
parents 	and 	administrators." 	GTA argues 	that 	in placing 	this
language 	in the 	contract 	"the parties were 	contemplating
employment 	serving the 'educational needs 	of the 	school' 	not
outside 	employment 	for the 	financial 	gain of the 	individual."
Thus, 	the Board agent's 	conclusion that the District's 	actions
"were 	clearly authorized by the plain 	language 	of 	4.3" 	is 	in
error.4
4GTA also 	argues 	under 	this 	exception that 	the Association
should, 	at a minimum, 	be permitted to put on evidence 	and to
examine 	District witnesses 	regarding 	the meaning 	of 	the 	contract
language, 	bargaining history, 	and past practice concerning these
issues. 	This 	argument is without merit. 	Referring to 	its
decision in Marysville. 	the Board, 	in Saddleback Community
College District 	(1984) 	PERB Decision No. 	433, pp. 	4-5, 	stated:
66

Finally, 	GTA contends 	that 	the Board agent's 	reliance 	on
Marysville 	is 	misplaced 	since 	its 	application depends 	upon the
"assumption that 	the 	contract 	language permits 	the 	District's
action." 	GTA concludes 	the 	Board agent 	is 	not authorized to
determine whether 	these 	actions 	are permitted by the 	contract, 	as
such 	a determination would resolve 	facts 	in dispute.
DISCUSSION
GTA's 	contention that 	the 	Board 	agent 	exceeded 	his 	authority
and decided the 	factual 	issues 	in dispute 	is without merit. 	Also
without merit 	is 	GTA's 	contention that 	sufficient 	facts 	have been
alleged 	to 	establish 	that 	the 	District's 	interpretation of 	the
contract 	amounts 	to a change of policy.
Under EERA 	section 	3541.5(b) 	the 	Board has 	no 	authority to
enforce 	agreements 	between parties 	and 	cannot 	issue 	a 	complaint
on 	any 	charge based 	on an alleged violation of 	an agreement
unless 	the 	violation would 	also 	constitute 	an unfair practice
under EERA. 	(Grant.)
Although we do not 	suggest 	that 	a hearing
will 	always 	be 	required where 	the dispute
involves 	an existing 	contract, 	Marysville
also informs us 	that where there 	is 	a
legitimate 	dispute 	over 	the 	meaning 	of 	that
contract, 	the parties must be afforded the
opportunity to 	offer 	evidence 	in 	support 	of
their respective 	contentions.
(Emphasis 	in original.)
For the reasons 	identified 	in this decision, 	GTA has 	failed to
allege 	facts 	that would 	establish 	a 	"legitimate 	dispute 	over 	the
meaning" 	of the contract. 	Therefore, 	a hearing is 	not warranted.
7

To 	state a prima 	facie 	case of 	a unilateral 	change 	the
charging party must 	allege 	facts 	sufficient 	to 	establish:
(1) 	the 	employer breached or altered the party's written
agreement or own established past practice; 	(2) 	such action was
taken without 	giving 	the 	exclusive 	representative 	notice 	or 	an
opportunity to bargain over the change; 	(3) 	the change 	is 	not
merely an isolated breach of 	the contract, 	but amounts 	to 	a
change of policy 	(i.e., 	has 	a generalized effect or continuing
impact upon bargaining unit members' 	terms 	and conditions 	of
employment); 	and 	(4) 	the change in policy concerns a matter
within the 	scope of representation. 	(Grant: 	Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51; 	Davis
Unified School District, 	et al. 	(1980) 	PERB Decision No. 	116.)
From the contents of the charge, 	the central 	issue 	in
dispute 	is 	the meaning of Article 	4.5 	and 	its 	application to
Articles 	4.2 	and 4.3. 	GTA alleges 	that 	the 	criteria 	identified
in Article 	4.5 was 	"intended" 	or 	"contemplated" 	by 	the parties 	to
restrict 	temporary 	absences 	granted under Article 	4.3. 	GTA 	also
states 	the 	"new policy 	[of 	granting temporary releases 	of 	the
type occurring in this case] 	is not within the scope of, 	nor
permitted by, 	the 	language of 	the 	collective bargaining
agreement."
GTA's 	charge, 	however, 	is devoid of any factual allegations
identifying 	evidence 	to 	support 	such 	an 	interpretation.
Accordingly, 	without 	such allegations 	the Board agent 	is 	not
required 	to 	accept 	the 	charging party's 	conclusory 	allegations
8

regarding the 	interpretation of the 	contract. 	(See 	e.g., 	Los
Angeles 	Unified School 	District 	(Wightman), 	supra. 	PERB
Decision No. 	473, 	pp. 	7-9.) 	Rather, 	the Board agent is 	free to
examine the 	contract and, 	by reference to 	its 	terms 	only,
determine 	its 	meaning. 	(See 	Butte 	Community College 	District
(1985) 	PERB Decision No. 	555 where the Board, 	in addressing a
similar type of 	contract 	interpretation 	issue, 	relied on Civil
Code 	section 	1644 	for the proposition that the words 	of 	a
contract 	are 	to 	be understood 	in 	their 	ordinary 	and popular
sense, 	unless 	the parties 	intended a 	special meaning by their
usage.) 	In this 	case, 	the contract language is 	clear. 	Article
4.2 	provides:
Non-teaching 	[sic] 	employees will 	regularly
be on campus no 	less than seven 	(7) 	hours 	and
twenty 	(20) 	minutes not including a duty-
free 	forty 	(40) 	minute 	lunch period.
Article 	4.3 	provides:
Any 	temporary 	exception 	reducing 	hours 	in
Sections 	4.1 	and 	4.2 	shall 	be 	approved 	in
advance by the 	site 	administrator.
Article 	4.5 	provides:
The normal workday 	schedule(s) 	(which will
establish 	the 	beginning 	and 	ending time 	of
the workday) 	shall be 	set mutually by the
site 	administrator 	and 	the 	individual 	staff
member. 	In the event that mutual 	agreement
cannot be reached, 	the 	site Administrator's
decision shall be 	final 	except 	that 	such
decision 	shall 	be 	consistent with 	the 	other
provisions 	of 	this 	article and 	shall 	be based
on the 	educational 	needs 	of 	the 	school 	and
the professional 	need 	for teachers 	to be
available to students, parents, 	and
administrators.
9

Without 	factual 	allegations 	identifying 	evidence 	to 	support
a 	contrary 	interpretation, 	the plain and 	ordinary meaning 	of 	the
language 	used 	in these Articles 	clearly 	indicates 	that 	the
District's 	conduct 	in granting the 	temporary absences 	to 	Boone 	is
permitted under 	the 	contract.
Furthermore, 	where the contract 	language 	is 	clear and
unambiguous 	on 	its 	face 	it 	is 	unnecessary to 	go beyond 	the
language of 	the 	contract 	itself to ascertain its 	meaning. 	(Butte
Community College District, 	supra, 	PERB Decision No. 	555, 	pp.
10-11; 	Marysville.) 	Here, 	GTA merely asserts 	its 	interpretation
as 	to the 	"true 	[or intended] 	meaning" 	of the 	language contained
in Article 	4.5. 	Specifically, 	GTA argues 	that the decision to
grant 	temporary 	exceptions 	under Article 	4.3 	must 	be 	"based 	on
the 	educational 	needs 	of 	the 	school 	and the professional 	need 	for
teachers 	to be available to 	students, 	parents 	and
administrators." 	Thus, 	the Board agent did not exceed his
authority 	nor decide 	the 	ultimate 	factual 	issue when he 	rejected
GTA's 	unsupported 	and 	conclusory 	allegation 	concerning 	the
interpretation of 	the 	contract.
GTA also 	fails 	to establish, 	as one of 	its prima facie
elements 	of a unilateral 	change violation, 	that the District's
decision 	to 	grant 	a 	temporary release 	for 	Boone 	constituted 	a
change 	in policy. 	The Board has previously 	stated that 	an
employer's 	established policy may be 	embodied 	in the 	terms 	of 	the
collective bargaining agreement 	itself. 	(Grant.) 	However, 	where
the contract 	is 	silent or ambiguous 	as 	to 	such a policy, 	that
10

policy 	must 	be 	ascertained 	by 	examining past practice 	or
bargaining history. 	(Marysville? 	Rio 	Hondo 	Community College
District 	(1982) 	PERB Decision No. 	279; 	Pajaro Valley Unified
School District, 	supra. 	PERB Decision No. 	51.) 	In the instant
case, 	the 	clear and unambiguous 	language of 	the contract
establishes 	that 	it 	is 	the policy of the District to grant
temporary 	absences 	for 	nonteaching 	employees 	provided 	the
employee 	obtain prior approval 	from the 	site administrator.
Accordingly, 	it 	is 	unnecessary to go beyond that 	language 	to
ascertain a 	contrary 	interpretation 	in the 	absence 	of 	supporting
factual allegations. 	(Marysville, 	p. 	10; 	see also Butte
Community College District, 	supra. 	PERB Decision No. 	555.)
We 	note 	further that 	a unilateral 	change 	in established
policy, 	whether 	embodied 	in the 	contract 	or evident 	from the
parties' 	past practice, 	cannot be established unless the
allegations 	identify 	facts 	evidencing 	a 	conscious 	or apparent
reversal 	of 	a previous 	understanding. 	(Grant.) 	GTA has 	alleged
no 	facts 	to 	support 	its 	interpretation of 	the 	intended meaning of
the contract 	language in question. 	Consequently, 	it cannot be
established by the 	allegations 	that 	a 	reversal 	or departure 	from
a prior understanding of the parties, 	which 	in this 	case 	is
embodied in the contract, 	has 	occurred.
Finally, 	we 	reject GTA's 	allegation that the 	Board agent
exceeded his 	authority 	in relying on Marysville. 	Although 	it 	is
true 	the meaning of Article 	4.5 	is 	the 	fundamental 	issue 	in
dispute, 	GTA has 	stated only 	conclusionary allegations 	as 	to 	the
11

"true" 	or 	"contemplated" 	meaning of the Article. 	Thus, 	as a part
of 	his 	determination as 	to whether a prima 	facie case has 	been
stated, 	the 	Board agent was 	free to examine whether the 	contract
language 	on 	its 	face 	expressly permits 	the 	District's 	conduct.
Having 	found that 	it does, 	the 	Board 	agent properly 	cited 	PERB
case 	law directly on point 	for the proposition 	that 	a 	failure 	to
previously 	exercise 	a 	right 	expressly 	authorized by 	the 	contract,
does 	not preclude 	the 	District 	from exercising 	that 	right 	at 	the
present 	time.
ORDER
For the reasons 	stated above, 	the Board DENIES 	GTA's 	appeal
and AFFIRMS 	the Board agent's 	dismissal 	in Case No. 	LA-CE-3052
WITHOUT 	LEAVE 	TO AMEND.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
12

STATE OF CALlFORNIA 	PETE WILSON Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles. CA 90010-2334
(213) 736-3127
February 21, 	1991
Charles R. 	Gustafson
California 	Teachers 	Association
P.O. 	Box 	92888
Los Angeles, 	CA 	90009
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair
Practice Charge No. 	LA-CE-30 52, 	Glendora Teachers
Association v. 	Glendora 	Unified School 	District
Dear Mr. 	Gustafson:
I 	indicated to you 	in my attached letter dated February 	8, 	1991,
that 	the 	above-referenced charge did 	not 	state 	a prima 	facie
case. 	You were advised that if 	there were any factual
inaccuracies 	or additional 	facts 	that would correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend the
charge accordingly. 	You were 	further advised that unless 	you
amended the charge to state a prima 	facie case, 	or withdrew it
prior to February 	19, 	1991, 	the charge would be dismissed.
On February 	19, 	1991, 	I 	received from you a Second Amended
Charge. 	This 	amended charge 	includes 	the 	following 	significant
addition to the allegations:
The true meaning of 	the provisions 	in question 	[Articles
4.2, 	4.3 	and 4.5 	of 	the collective bargaining agreement] 	are
[sic] 	highlighted by the 	criteria 	set 	forth 	in Article 	4.5
that the decision on temporary 	exceptions 	must be 	"based on
the 	educational 	needs 	of 	the 	school 	and the professional
need for teachers to be available to 	students, 	parents 	and
administrators." 	The 	allowance 	of 	outside work 	for 	outside
compensation does 	nothing 	to meet 	the 	educational 	needs 	of
Glendora 	Unified 	School 	District 	or 	the professional 	need 	of
being available to the 	students, 	parents or administrators
of 	Glendora 	Unified 	School 	District.
The 	amended 	charge 	still 	does 	not 	state 	a prima 	facie violation
of 	the EERA, 	for the reasons 	that 	follows.
Article 	4.5 	of 	the 	collective 	bargaining 	agreement provides 	in
relevant part as 	follows:
The 	normal workday 	schedule(s) 	(which will 	establish 	the
beginning and ending 	time of 	the workday) 	shall 	be 	set

Dismissal 	and 	Refusal 	to 	Issue 	Complaint
LA-CE-3052
February 21, 	1991
Page 2
mutually by 	the 	site 	administrator 	and 	the 	individual 	staff
member. 	In the 	event 	that mutual 	agreement 	cannot be
reached, 	the 	site Administrator's decision shall 	be 	final
except 	that 	such 	decision 	shall 	be 	consistent with 	the 	other
provisions 	of 	this 	article 	and 	shall 	be 	based on the
educational 	needs 	of 	the 	school 	and 	the professional 	need
for teachers to be available to students, 	parents, 	and
administrators.
On its 	face, 	this Article deals with the 	setting of the 	"normal
workday schedule." 	It does 	not deal with 	the approval of
exceptions to that norm. 	In contrast, 	Article 4.3 deals directly
and exclusively with the approval 	of 	exceptions, 	and the
limitations 	of Article 	4.5 	do 	not apply. 	As 	discussed 	in my
February 8 	letter, 	the only 	limitations 	on the approval of
exceptions under Article 	4.3 	are 	(1) 	that the 	exceptions 	must 	be
temporary and 	(2) 	that they must reduce regular on-campus hours.
The temporary reductions 	in regular on-campus hours 	approved by
the District were 	clearly 	authorized 	by the plain 	language 	of
Article 4.3. 	I 	am therefore dismissing 	the 	charge based on the
facts 	and 	reasons 	contained 	in 	this 	letter and 	in my February 	8
letter.
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 Code of Regulations, 	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
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 Code 	of
Regulations, title 8, 	section 32635(b)).

Dismissal 	and 	Refusal 	to 	Issue 	Complaint
LA-CE-3052
February 21, 	1991
Page 	3
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 Code of 	Regulations,
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 	Code 	of
Regulations, 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,
JOHN W. 	SPITTLER
G e n e r a l 	Counsel
By .
Thomas J. 	Allen
Regional 	Attorney
Attachment
cc: 	Spencer E. 	Covert

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT 	RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles. CA 90010-2334
(213) 736-3127
February 8, 	1991
Charles R. 	Gustafson
California 	Teachers 	Association
P.O. 	Box 	92888
Los Angeles, 	CA 	90009-2888
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3052,
Glendora 	Teachers 	Association v. 	Glendora 	Unified
School 	District
Dear Mr. 	Gustafson:
In the 	above-referenced 	charge, 	the 	Glendora 	Teachers 	Association
(Association) 	alleges 	that 	the Glendora 	Unified 	School 	District
(District) 	unilaterally 	changed 	a 	policy 	concerning 	the 	normal
duty day. 	This 	conduct 	is 	alleged 	to violate Government 	Code
sections 	3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations 	Act 	(EERA).
My 	investigation 	of 	the 	charge 	revealed 	the 	following 	facts.
The Association 	is 	the exclusive 	representative of 	a 	unit of 	the
District's 	certificated 	employees. 	The 	collective 	bargaining
agreement 	between 	the Association 	and 	the 	District, 	effective
September 	14, 	1988, 	through June 30, 	1991, 	provides 	in relevant
part as 	follows, 	in Article 	IV 	("Hours):
4.1 	The 	Bargaining 	Unit 	Members 	will 	be 	on 	campus
no 	less 	than six 	(6) 	hours 	and twenty 	(20)
minutes 	each contract 	day unless 	other
provisions 	have been made.
4.2 	Non-teaching 	employees 	will 	regularly 	be 	on
campus 	no 	less 	than seven 	(7) 	hours 	and
twenty 	(20) 	minutes 	not 	including a duty-free
forty 	(40) 	minute 	lunch period.
4.3 	Any 	temporary 	exception 	reducing 	hours 	in
Sections 	4.1 	and 	4.2 	shall 	be 	approved 	in
advance 	by 	the 	site 	administrator.
The 	charge 	alleges 	that 	the 	District had 	a 	"prior practice 	of
denying 	unit 	members 	release 	from 	regular 	duties 	in order 	to 	earn
additional 	compensation," 	but 	that 	around 	the beginning 	of 	the
1990-91 	school 	year 	the 	District 	permitted 	"a unit 	member 	to work
for 	another 	employer 	and 	receive 	salary 	from 	that 	other 	employer

Warning 	Letter
LA-CE-3052
February 8, 	1991
Page 2
for work performed during 	the 	normal 	duty day of 	unit 	members 	in
the District." 	The charge 	itself does 	not 	identify 	the 	unit
member 	in question or provide any other 	factual 	detail. 	Attached
to the First Amended Charge as Exhibit A, 	however, 	is 	the
District's 	letter of 	response to the original 	charge. 	This
letter assumes 	that the unit 	member 	in question 	is Counselor 	Myra
Boone, 	whose normal duty day was 	7:30 a.m. 	to 3:30 p.m. 	but who
was permitted to be off 	campus until 	11:00 	a.m. 	on September 	6
and October 	15, 	1990, 	and to leave campus at 2:15 p.m. 	on
September 26, 	1990, 	and at 2:30 p.m. 	on December 7, 	1990, 	in
order to 	conduct workshops 	for the 	Los 	Angeles 	County 	Department
of Education.
The charge asserts 	that the 	District's 	letter of 	response 	"admits
that its 	new policy is one of general 	application," 	but 	the
letter contains no such admission. 	The charge also asserts 	that
the District changed the 	"salary" 	of unit members, 	but there 	is
no 	allegation or evidence 	that 	the 	District 	changed 	the 	salary
that 	it paid to any unit member.
Based on the facts 	stated above, 	the 	charge 	fails 	to 	state a
prima 	facie violation of the EERA, 	for the reasons 	that 	follow.
A unilateral 	change 	of policy that 	violates 	the 	EERA 	is 	one 	that
"has, 	by definition, 	a generalized effect or continuing impact
upon the 	terms 	and conditions 	of 	employment 	of bargaining unit
members." 	Grant Joint Union High School 	District 	(1982) 	PERB
Decision No. 	196, 	at p.9. 	The present charge does not allege
facts 	which 	indicate 	that 	the 	District's 	action with 	regard 	to
one unit member was 	a 	change of policy with 	such a generalized
impact or continuing 	effect.
Further, 	the District's 	action appears 	to be 	fully 	consistent
with 	the policy established 	by 	the 	plain 	language 	of 	the
collective bargaining agreement. 	Section 	4.3 	of Article 	IV of
the agreement 	specifically 	states, 	"Any 	temporary 	exception
reducing 	[regular on-campus] 	hours 	in Sections 	4.1 	and 	4.2 	shall
be 	approved 	in advance by the 	site 	administrator." 	Plainly, 	what
the agreement 	says 	the 	District 	(through 	its 	site 	administrator)
"shall" 	do 	(approve exceptions 	to regular on-campus 	hours) 	the
District 	is 	contractually permitted 	to do.
The 	charge 	asserts 	that 	Section 	4.3 	contemplated 	only 	"the 	type
of 	temporary absence 	to 	carry 	out 	District duties 	elsewhere."
This assertion, 	however, 	is 	not 	supported by the plain 	language
of 	the 	section. 	That 	language 	sets 	only 	two 	limitations 	on
exceptions 	to be approved by the District: 	(1) 	that 	they be
temporary 	(rather than permanent) 	and 	(2) 	that 	they reduce
(rather than increase) 	regular on-campus 	hours. 	The 	exceptions

Warning 	Letter
LA-CE-3052
February 8, 	1991
Page 3
approved 	in the present 	case 	clearly 	reduced 	rather 	than
increased the unit member's 	regular on-campus 	hours, 	and there 	is
no 	allegation or 	evidence 	that 	the 	exceptions 	were 	permanent
rather than temporary. 	(Four days 	spread 	out 	over a 	four-month
period 	cannot be 	regarded as permanent 	exceptions.) 	The 	District
was 	thus 	within 	its plainly 	established 	contractual 	rights 	when
it 	approved those 	exceptions.
The 	fact that 	the 	District 	allegedly had a prior practice 	of
denying exceptions 	does 	not make 	its 	approval 	of 	the 	exceptions
an unlawful 	unilateral 	change. 	As 	PERB 	stated 	in Marysville
Joint Unified School District 	(1983) 	PERB Decision No. 	314, 	at
p.10, 	"The mere 	fact that an employer has 	not 	chosen to 	enforce
its 	contractual rights 	in the past does 	not mean that, 	ipso
factor, 	it is 	forever precluded from doing so."
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie 	case. 	If 	there are 	any 	factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend the charge
accordingly. 	The 	amended 	charge 	should be prepared on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First 	Amended
Charge, contain all 	the 	facts 	and allegations you wish 	to make,
and must be 	signed under penalty of 	perjury by the 	charging
party. 	The amended charge must be 	served on the 	respondent 	and
the original proof of service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge 	or withdrawal 	from you before
February 	19, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney