Cloverdale Unified School District (PERB 0911E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TEACHERS 	ASSOCIATION OF
CLOVERDALE,
Charging 	Party,
v.
CLOVERDALE UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1361
PERB Decision No. 	911
November 20, 	1991
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Appearances; 	Ramon E. 	Romero, 	Attorney, 	for Teachers Association
of Cloverdale; 	Henry, Gong, Merchat, Reed & Uchiumi, by
Margaret M. 	Merchat, 	Attorney, 	for Cloverdale Unified School
District.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by the Cloverdale
Unified 	School 	District 	(District) 	to 	the proposed decision of 	a
PERB administrative 	law judge 	(ALJ). 	The ALJ found that the
District 	unilaterally 	increased 	the work day 	for 	its 	fourth 	and
fifth grade teachers 	in violation of 	section 3543.5(b) 	and 	(c) 	of
the Educational Employment Relations Act 	(EERA or Act).1
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5(b) 	and 	(c) 	state, 	in
pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(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.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including the proposed decision, 	the District's 	exceptions 	and
the Association's 	response 	thereto. 	The 	Board agrees 	that 	the
District violated EERA 	section 	3543.5(b) 	and 	(c) 	in accord with
the 	discussion below.
FACTUAL 	SUMMARY
The 	Cloverdale 	Unified 	School 	District 	is 	a public 	school
employer, 	and the Teachers Association of Cloverdale 	(TAC) 	is 	an
employee 	organization and 	an 	exclusive 	representative within 	the
meaning 	of 	EERA.
The parties' 	1986-89 	collective bargaining agreement 	(CBA)
contained 	the 	following 	relevant provisions 	regarding hours 	of
employment 	for certificated employees 	in general, 	and those 	at
Washington Elementary School 	(Washington),2 	in particular:
9.1 	During the 	following 	schedules,
employees 	shall 	remain on the 	school premises
unless 	otherwise 	directed by 	the
Superintendent 	or Principal.
9.1.5 	Washington 	School 	- 	7:45 	a.m. 	until
3:15 	p.m.
9.5 	Each teacher 	in grades 	4 	to 	12 	shall be
guaranteed 	a preparation period daily 	of 	at
least 	45 	minutes. 	A teacher may waive
his/her 	preparation period 	only 	upon written
2All 	of 	the 	District's 	fourth and 	fifth grade 	teachers 	work
at Washington Elementary 	School.
N	2

request by the 	teacher 	and 	approval 	by 	the
Superintendent. 	It is 	the 	intention of the
parties 	that preparation periods 	shall 	not be
used 	as 	an additional 	teaching period
(excluding band) 	to reduce a teacher's 	class
load.
9.7 	Planning 	and preparation 	time where
assigned by the principal 	shall 	be used 	for
planning, 	preparation, 	conference with
pupils, parents, or administrators.
9.8 	Each 	teacher 	shall 	spend 	additional
time, 	at the school, 	that in his/her
professional 	judgement 	is 	required to
beneficially 	supplement 	the 	regular
instructional 	day. 	. . .
9.10 	During the hours 	of 	employment,
employees 	shall perform those duties 	related
to 	their teaching assignments 	as 	designated
by the principal. 	Such duties 	may 	include
supervision of pupils, 	conferring with
parents, 	participating in required meetings,
etc. 	The teacher 	shall be on time 	for their
responsibilities.
9.12 	Daily 	Instruction 	Schedule:
9.12.3 	Grades 	4-6 	= 	320 	minutes 	of
instruction per day.
For 	an 	extended period 	of 	time prior 	to 	and through 	the
1988-89 	school year, 	the 	fourth and 	fifth grade teachers 	at 	the
District's 	Washington 	school 	were 	assigned 	the 	following
schedule:
w	3

Be 	at 	school prior 	to morning 	session 	7:45 	to 	8:15 = 	30 minutes
Morning 	session 	- 	instruction 	8:15 	to 	10:10 = 	115 minutes
Morning Recess 	10:10 	to 	10:30 = 	20 minutes
Mid-Morning 	session 	- 	instruction 	10:30 	to 	11:45 = 	75 minutes
Noon (Lunch) 	11:45 	to 	12:30 = 	45 	minutes
Mid-Afternoon 	session - 	instruction 	12:30 	to 	1:20 = 	50 minutes
Afternoon Recess 	1:20 	to 	1:30 = 	10 minutes
Afternoon 	session - 	instruction 	1:30 	to 	2:45 = 	75 minutes
After 	school 	time 	- 	non-instruction 	2:45 	to 	3:15 = 	30 	minutes
Total 	minutes 	450
Total 	instruction time 	for 	students 	315
Total 	instruction time by 	each 	individual
teacher 	(315 	- 	45 	minute preparation period) 	270
.--.,
During the 	1986-87 	school year, 	the District 	"pulled out"
each 	fourth 	and 	fifth grade 	teacher's 	students 	for a 	total 	of 	45
minutes 	per day 	and provided 	art 	and physical 	education
instruction. 	The 	individual teachers 	used the time 	in which
their 	students were absent 	for their preparation periods.
During the 	1987-88 	school year, 	the District 	eliminated the
art 	teacher's 	role but maintained 	that 	of 	the physical 	education
teacher. 	The 	classroom teacher continued to have 	a daily
45-minute 	preparation period during 	the 	instructional 	day.
During the 	1988-89 	school year, 	the District maintained the
physical 	education 	"pull 	out" 	procedure and added health. 	Once
again 	each 	classroom 	teacher 	received 	a 	daily 	45-minute
preparation 	period.
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Two 	of 	the 	involved 	teachers 	described their 	actions 	during
these preparation periods. 	They prepared 	lessons, 	planned 	long-
term projects 	and 	long-term units. 	It was 	during 	this 	time 	that
they would 	go 	to 	the photocopy 	room 	and prepare 	handouts 	for
students. 	It was 	easier to get access 	to the photocopy machine
during 	the 	day 	than during 	the 	high-use periods 	before 	and 	after
the 	instructional day. 	They also used 	this 	time 	to make 	contact
with parents 	on the phone 	and to make 	changes 	in the 	internal
classroom facilities, 	i.e., 	changing the 	subject of a wall
display 	such as Thanksgiving to Christmas. 	In addition, 	they
graded papers, 	wrote 	lesson plans 	for 	future classes 	and worked
on special projects.
The 	teachers 	also described their actions 	during 	the 	30-
minute period 	at 	the beginning of 	each 	school 	day prior to 	the
start of 	student 	instruction. 	They 	explained that 	they 	checked
their 	individual 	mailboxes 	and 	consulted with 	the principal,
vice-principal 	and the counselors, 	when they were available.
They 	also 	opened up 	their classrooms 	and worked with 	students 	who
were 	having difficulty with the previous 	night's 	homework. 	In
addition, 	they had to complete rotating 	15-minute assignments 	of
playground 	supervision. 	Phone 	calls were made 	to parents 	and
conversations were held with parents who 	came, 	with or without
appointments, 	to the classroom.
The 	teachers 	also described their actions 	during the 	30-
minute period at the 	end of 	the day's 	student 	instruction. 	They
routinely 	cleaned and readied 	the 	room 	for 	the 	next 	day's
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instruction and often dealt with disciplinary problems, 	such as
keeping 	students 	after 	school. 	During this 	time 	they 	also
provided 	individualized 	instruction 	to 	students 	having
difficulties 	understanding 	the 	lesson during 	the 	regular
classroom period. 	They also used the 	time 	to 	talk to 	other
instructors, 	the principal, 	the vice-principal and counselors.
Part of 	the 	time was 	spent making phone 	calls 	to 	and 	receiving
phone calls 	from parents. 	In addition, 	parents would often come
to 	the 	classroom wanting 	to 	talk about 	their children's 	progress.
At the beginning of 	the 	1989-90 	school year, 	the District
modified the 	fourth and 	fifth grade 	teachers' 	schedule 	to
eliminate 	the mid-day preparation period and to 	add, 	as 	more
fully described below 	45 	minutes 	of daily 	instruction. 	It 	also
shifted 	30 	minutes 	from various 	locations 	throughout 	the day 	to
the 	30-minute post-student 	school period. 	The 	District 	insisted
that this 	60-minute period was 	now the teachers' 	preparation
period.
Two 	teachers 	testified 	regarding 	the 	differences 	between a
preparation period during the day, 	as 	a result of the 	"pull 	out"
program, 	and a preparation period at the 	end of 	the day. 	They
both cited, 	as the primary difference between the two, 	the number
of 	interruptions. 	As an example, 	there would be no parents
dropping 	in unexpectedly 	during 	the 	mid-day 	preparation period 	as
each teacher was 	on a different 	schedule, 	and the parents were
not 	generally 	aware of 	each 	teacher's 	schedule. 	Nor would
colleagues 	drop 	in to discuss 	mutual 	educational 	concerns 	as
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there would be, 	at most, 	only one other teacher with the 	same
preparation period. 	They cited the 	elimination of 	the mid-day
preparation period as the reason they were unable, 	in the 	1989-
90 	school year, 	to complete their assignments during the work
day.
James P. 	Crump 	(Crump), 	a fifth grade teacher at Washington
and 	a member of 	TAC's 	negotiating 	team, 	described 	the difference
between his 	actions 	during his 	mid-day preparation period 	and 	the
two 	non-instructional periods 	at 	the 	beginning 	and 	end 	of 	the 	day
as follows:
The 	main distinction between that 	and 	the
other two periods 	is 	that 	is my personal 	time
where 	I 	can 	sit down and plan and prepare
lessons, 	plan long-term projects 	and long-
term units. 	The 	other time 	I'm 	involved with
interruptions 	from parents 	or 	administration,
faculty meetings.
The distinction is 	like before 	school 	and
after 	school 	is 	highly 	involved with 	the
kids. 	During the prep time 	I 	don't have any
kids.
(R.T. p. 	39.)
Crump 	testified that 	as 	a 	result of 	the modified 	schedule he
worked additional 	time each week. 	When asked how much time, 	he
stated:
It depended. 	Some days an hour or two, 	the
other days, 	especially during heavy grading
periods, 	it could be eight --eight, 	nine
hours a week.
(R.T. p. 	74.)
Brenda Simoneau, 	a 	fourth grade teacher at Washington,
stated that 	the 	combination of 	the 	additional 	45 	daily minutes 	of
instruction plus 	the 	elimination of 	the 	mid-day preparation
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period 	caused her 	to work 	a 	minimum of 	five 	additional 	hours 	per
week. 	She believes 	that Crump and the rest of 	the 	fourth and
fifth grade 	teachers 	at Washington were 	affected 	in the 	same
manner and to the 	same 	extent.
Notification of 	1989-90 	Schedule Changes
During the 	last week 	in May or the 	first week 	in June 	1989,
Washington's principal, 	Tim Justus 	(Justus), 	told the fourth and
fifth grade 	teachers 	that the 	"pull 	out" 	program 	for health 	and
physical 	education 	instruction was 	no 	longer going 	to 	be
available. 	He 	also 	said that 	a 	new schedule would be 	implemented
and 	it would have an impact on the 	teachers' 	preparation periods.
There was 	nothing 	in writing given to 	the 	teachers 	and 	any
schedule 	changes were described 	as 	"tentative." 	Justus was
looking 	for 	input 	from the teachers 	about these 	changes. 	Crump
told him 	that 	they 	could not 	give him 	input 	- 	that 	they would
listen and then discuss 	it 	among themselves. 	Crump 	also 	told him
that 	if the tentative changes were going to 	create a 	change 	in
working 	conditions 	they would have 	to be 	negotiated. 	Justus 	said
that he 	understood.
After the meeting, 	Crump went back to his 	classroom and
started to 	analyze 	the 	figures 	given to him by Justus. 	He
realized there was 	an approximate 	increase of 	25 	to 	30 	daily
instructional minutes. 	He went back to 	Justus 	and they discussed
Crump's 	figures. 	Justus 	agreed that his 	original 	"tentative"
plan 	necessitated 	increasing 	the 	number 	of 	instructional 	minutes
for 	each 	fourth and 	fifth grade 	teacher. 	The 	two men came 	to 	the
conclusion that the plan, 	as originally envisioned, 	was 	not going
to work - 	that 	it had to be redone. 	Crump told Justus 	that 	any
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plan 	incorporating 	those 	same 	concepts 	would 	require 	negotiations
between TAC and the District. 	Justus agreed. 	Crump discussed
the matter with TAC president 	Tonya 	Giusso 	and 	she 	called
California 	Teachers 	Association 	field 	representative 	George
Cassell.
During the summer of 	1989, 	Marc Mager 	(Mager) 	replaced
Justus 	as Washington's principal. 	Near the beginning of August,
Crump was 	at the 	school 	site 	and 	spoke to Mager. 	Mager 	showed
Crump the teachers' 	schedule 	for the upcoming 	school 	year. 	Crump
realized 	that 	this 	schedule had major differences 	between 	it 	and
that of 	the previous 	year. 	He believed 	that these differences
impacted the teachers' 	terms 	and conditions 	of employment. 	He
told 	Mager 	that 	he 	believed 	the 	schedule 	modification 	required
negotiations. 	He does not recall Mager's response.
On Thursday, 	August 	31, 	1989, 	the fourth and fifth grade
teachers 	were 	given a new work day 	schedule when they 	reported
for duty 	for the 	1989-90 	school year. 	That new schedule was 	as
follows:
Be 	at 	school prior to morning 	session 	7:45 	to 	8:05 	= 	20 	minutes
Morning 	session 	- 	instruction 	8:05 	to 	10:05 	= 	120 	minutes
Morning 	Recess 	10:05 	to 	10:20 	= 	15 	minutes
Mid-Morning 	session - 	instruction 	10:20 	to 	12:00 	= 	100 	minutes
Noon 	(Lunch) 	12:00 	to 	12:40 	= 	40 	minutes
Mid-Afternoon 	session - 	instruction 	12:40 	to 	2:15 	= 	95 	minutes
After 	school 	time 	- 	non-instruction 	2:15 	to 	3:15 	= 	60 	minutes
Total 	minutes 	450
Total 	instruction time 	315
99

In addition, 	Washington's bell 	schedule for grades 	4 	and 5
showed two periodic 	duties: 	a morning duty period of 	15 	minutes
from 	7:50 	to 	8:05, 	and a bus 	duty period of 	10 	minutes 	from 	2:15
to 	2:25.3
The 	new 	schedule 	created 	the 	following 	chronological
changes. 	It 	(1) 	reduced the non-instructional time at the 	start
of the day from 30 to 20 minutes; 	(2) 	reduced the morning recess
from 20 	to 	15 minutes; 	(3) 	reduced the lunch period from 45 	to 	40
minutes; 	(4) 	eliminated the 	10-minute afternoon recess; 	and 	(5)
increased after 	school 	non-instructional 	time 	from 	30 	to 	60
minutes.
In addition, 	the teachers were required to prepare 	for two
additional classes, 	physical 	education and health, 	although
Principal Mager made 	it 	clear that 	extensive programs 	in these
areas were not 	expected. 	They were 	also assigned a 	daily ten-
minute bus duty once every four to 	six weeks. 	However, 	they were
no 	longer assigned 	afternoon recess 	duty 	as 	that 	recess 	period
had 	been 	eliminated.
Under the 	1988-89 	schedule, 	the teachers 	had 	270 	daily
instructional minutes. 	Under the 	1989-90 	schedule, 	the 	same
teachers 	had 	315 	daily 	instructional 	minutes 	with 	a 	corresponding
decrease 	in non-instructional 	and/or duty 	free time. 	The on-
site work day, 	i.e. 	the mandatory 	starting and 	ending duty 	times
did not 	change.
3Approximately one month after the 	school 	term 	started, 	the
instruction period was 	modified to 	start 	at 	8:00 	a.m. 	and 	end 	at
2:10 p.m. 	instead of 	the 	original 	8:05 	a.m. 	and 	2:15 	p.m.
10

Between September 8 	and 21, 	there were four letters 	of
protest 	concerning the 	schedule 	changes. 	They were 	sent 	to 	both
the 	District's 	board of 	education and Principal 	Mager. 	These
letters 	came 	from the 	fourth 	and 	fifth 	grade teachers 	of 	the
District. 	TAC also 	sent a 	letter in which it 	"wishe[d] 	to
formally protest" 	the District's 	scheduling changes. 	Some of 	the
letters 	demanded 	the 	District 	negotiate 	the 	matter 	and 	all
requested/demanded 	it rescind 	its 	action. 	One 	of 	the 	arguments
made was 	that 	all 	of 	the 	sixth through twelfth 	grade 	teachers 	had
preparation periods 	and 	the 	kindergarten 	through 	third 	grade
teachers 	had 	classroom aides. 	The 	letters 	cited the 	various
provisions 	of 	their CBA and past practice 	in support 	of 	their
position. 	The 	letters 	also demanded that until 	the 	schedule was
returned to that of 	the previous 	year, 	the teachers 	be
compensated 	at 	a 	rate 	equal 	to 	one-seventh of 	their daily 	salary
for 	each day they were 	required 	to work without 	a preparation
period. 	This 	one-seventh 	salary was 	the 	District's 	payment 	for
the 	long-term voluntary 	relinquishment 	of 	a preparation period.
Although this 	rate was not 	in the CBA, 	it was 	a 	figure the
teachers were aware of and, 	if not bilaterally set, 	was
acquiesced to by all parties. 	At 	least 	two middle 	school
teachers 	who 	voluntarily 	relinquished 	their preparation periods
to 	teach an additional 	class 	received this 	rate. 	If 	a teacher
voluntarily 	gave 	up 	his/her preparation period 	on 	an 	occasional
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basis, the 	agreed upon 	compensation was 	the 	contractual 	extra-
duty pay, 	approximately $16.00 pe	- 	r hour. 	This 	salary figure was
in the CBA.
The 	District declined 	to 	either 	rescind or modify 	the 	new
schedule 	or to pay 	the 	teachers 	any 	additional 	compensation.
Negotiations 	for 	Successor CBA
Negotiations 	for a 	successor CBA began 	in August of 	1989.
They continued 	throughout 	the 	school 	year and, 	during a 	mediation
session on May 	17, 	1990, 	the parties 	tentatively agreed to a new
CBA. 	The agreement was 	ratified by both parties 	on June 	12,
1990, 	and 	included a provision which 	stated that 	the 	"term of
this Agreement shall be effective on July 	1, 	1989, 	through
June 30, 	1990." 	The District insists, 	despite this unambiguous
language, 	that only 	salary and class 	size were totally
retroactive. 	It also states that there was 	a partial
retroactivity of 	some 	fringe benefits.
Neither 	side proposed 	an amendment 	to 	the 	CBA to 	amend 	the
section that 	sets 	forth the parameters 	of 	the teachers' 	work day
(Sec. 	9.1.5) 	or the 	section that guaranteed all 	teachers 	in
grades 	4 	to 	12 	a 45-minute preparation period. 	The 	subject
schedule modification was 	negotiated 	at 	approximately 	five 	of 	the
successor agreement negotiation sessions. 	On February 	5, 	1990,
the 	TAC 	submitted 	a proposal 	that would have 	reinstated 	the 	"4th
and 	5th grade teachers' 	preparation periods 	as 	last year."
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Gerald N. 	Huot, 	chief negotiator of the TAC when it
negotiated the 	1982-85 	CBA, 	stated 	that CBA 	section 	9.124 was
inserted 	for the 	first time 	in their CBA in response to 	SB 	813.5
He 	insisted that the reference 	to 	320 	minutes 	for grades 	4-6 	was
applicable 	to 	a minimum 	instructional 	level 	for 	those 	students
and 	not 	a minimum hands-on 	instructional 	level 	for 	individual
teachers. 	There was 	no testimony or other 	evidence proffered 	in
rebuttal 	to 	Huot's 	testimony 	other 	than Mager's 	general 	statement
that 	the CBA 	is 	an agreement with the 	teachers 	and not 	the
students.
The 	320-minute 	student 	instructional minimum, 	or at 	least
315 minutes of 	it, 	was maintained by the District 	in both 	1988-
89 	and 	1989-90 	school year. 	Under the 	former 	schedule, 	classroom
teachers 	shared 	these 	instructional 	minutes with 	the physical
education and health teachers. 	Under the 	latter, 	after the
District's modification of 	the daily 	instructional 	schedule, 	the
classroom teacher 	spent 	the 	entire 	time with the 	students 	by
him/herself.
On March 21, 	1990, 	at a successor negotiations 	session, 	the
TAC proposed the deletion of CBA 	section 	9.12. 	It based 	such
4See pages 	2-3 	for text 	of 	relevant 	sections 	of 	the 	1986-89
CBA.
5 SB 	813 	is 	more properly known as 	the Hughes-Hart
Educational 	Reform Act of 	1983. 	It became effective on July 	28,
1983 	(Ch. 	498, 	Stats. 	1983). 	This Act added Article 8
(commencing with section 46200 	et 	seq.) 	to Chapter 2, 	Part 26,
Division 4, 	Title 2 	of the Education Code. 	It offered 	school
districts 	additional 	revenues 	as 	an 	incentive 	to 	increase 	both
the 	number of 	instructional 	minutes 	and 	instructional 	days.
Acceptance of 	these 	incentives was 	not mandatory.
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proposal 	on the premise 	that 	the 	section did not 	represent 	the
actual minutes 	the 	individual 	teachers 	spent with 	the 	students,
but 	rather reflected 	a 	minimum 	level 	of 	student 	instructional
minutes. 	When the District agreed to the deletion of 	the
section, 	it made no comment as to why it did so.
"Effects 	of Layoffs Agreement" 	in April 	1989
On or about April 	4, 	1989, 	the parties 	entered into an
agreement that was 	entitled 	"Effects 	of 	Layoffs 	on Laid Off
Employees." 	There was 	little 	testimony 	regarding the 	document 	or
why 	it was 	negotiated. 	Section 2.1 	of what 	appears 	to be 	an
addendum to 	this 	document was 	cited by the District 	in 	its
closing brief. 	That 	section is 	as 	follows:
The Association reserves 	the 	right to bargain
the 	impact 	(effects) 	of program reductions
and/or 	layoffs 	of bargaining unit members 	on
the remaining bargaining unit 	in areas 	of
wages, 	hours and other terms of 	(sic)
conditions 	of 	employment 	that may not be
known until 	implementation takes 	effect 	in
the future.
On December 	18, 	1989, 	TAC filed the present unfair practice
charge. 	At the 	formal hearing, 	TAC 	filed a motion that the
complaint be amended. 	The complaint, 	as 	originally issued,
stated that 	the 	District's 	fourth 	and 	fifth grade 	teachers 	were
assigned two new subjects 	to 	teach: 	physical 	education and 	art.
The 	two 	new 	subjects were 	actually physical 	education 	and health.
The 	District had no objection to the 	amendment. 	The motion was
granted.
TAC 	filed 	a 	second motion to 	amend 	the 	complaint 	at 	the
formal hearing. 	Over the District's objections, 	the motion was
14

granted. 	The 	complaint was 	amended to 	state that the teachers'
45-minute 	preparation period 	had 	been 	eliminated 	rather 	than
reduced.
DISTRICT'S 	EXCEPTIONS
In its 	exceptions, 	the District 	contends 	the ALJ 	erred when
he 	determined 	that 	the 	District 	unilaterally 	altered 	the
teachers' 	work schedule. 	Specifically, 	the District claims 	the
ALJ erred by: 	(1) 	ruling that the CBA did not authorize 	the
District to modify the teachers' 	schedule as it did; 	(2) 	failing
to 	find 	that 	the 	District was 	relieved 	of 	any duty 	to 	bargain 	the
schedule change because TAC 	failed to request negotiations; 	(3)
failing to 	find that the April 	1989 	"Effects 	of 	Layoff" 	agreement
addressed the elimination of the pull 	out program; 	(4) 	failing to
acknowledge 	the District's 	business 	necessity 	to 	set up 	a
schedule 	for the 	1989-90 	school year in late August 	1989; 	(5)
finding that TAC's 	charge was 	timely 	filed; 	and 	(6) 	allowing TAC
to amend 	its 	complaint at the hearing, 	thereby allowing a
substantive 	change 	in the 	case 	and denying the 	District 	a due
process 	right to notice of 	the 	charges 	against 	it.
DISCUSSION
The 	central 	issue 	in this 	case 	is whether the District's
revision of 	the 	1989-90 work 	schedule 	for 	its 	fourth and 	fifth
grade 	teachers 	at 	the 	District's 	Washington Elementary 	School
constituted a unilateral 	change 	in the 	terms 	and 	conditions 	of
employment within the 	scope 	of 	representation 	in violation of
EERA section 3543.5(c).
15

A unilateral 	change 	in terms 	and 	conditions 	of 	employment
within the 	scope of negotiations 	is 	a per 	se refusal 	to
negotiate. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177];
Pajaro Valley Unified School 	District 	(1978) 	PERB 	Decision No.
51; 	San Mateo County Community College District 	(1979) 	PERB
Decision No. 	94.)
Under EERA section 3543.5(c), 	an employer is 	obligated to
meet 	and 	negotiate 	in good 	faith with 	an 	exclusive 	representative
about matters within the 	scope of 	representation. 	This 	section
precludes 	an employer 	from making unilateral 	changes 	in the
status quo, 	whether such 	status 	quo 	is 	evidenced by a 	collective
bargaining agreement 	or by past practice. 	(Anaheim City 	School
District 	(1983) 	PERB Decision No. 	364; 	Pittsburg Unified School
District 	(1982) 	PERB Decision No. 	199.)
In 	Imperial 	Unified School 	District 	(1990) 	PERB 	Decision No.
825, 	the Board determined that the charging party 	failed to 	show
that 	the 	District's 	unilateral 	schedule 	change 	had 	an 	impact 	on
the employees' 	work day, 	and thus 	found no violation of the EERA.
However, 	the Board 	set forth 	standards 	to measure the effects 	of
such changes:
PERB 	law generally views 	the 	length of 	the
instructional day as 	a management prerogative
which 	is 	outside the 	scope of 	representation.
(Jefferson School District 	(1980) 	PERB
Decision No. 	133.) 	Thus, 	employers are
generally 	free 	to 	alter 	the 	instructional
schedule without 	prior 	negotiation with
employee organizations. 	However, 	when
changes 	in the 	instructional 	day 	in turn
affect 	the 	length of 	the working day 	or
existing duty-free time, 	the 	subject is
negotiable. 	. 	. 	. 	(San Mateo City School
16

District 	(1980) 	PERB Decision No. 	129.) 	(Fn.
omitted.)
(Imperial 	Unified School 	District 	(1990) 	PERB
Decision No. 	825, 	pp. 	7-8.)
In two 	similar cases, 	Fountain Valley Elementary School
District 	(1987) 	PERB Decision No. 	625 	and Corning Union High
School District 	(1984) 	PERB Decision No. 	399, 	the Board concluded
that 	the 	school 	districts' 	unilateral 	action had 	impacted 	either
the employees' 	work day or their duty free time. 	Therefore, 	the
Board 	found violations 	of 	the Act 	based 	on 	such unilateral
action.
In this 	case, 	the District's 	unilateral change 	in the
schedule 	not 	only 	increased 	each 	teacher's 	instructional 	day by
45 	minutes 	but 	also 	added two new 	subjects 	to 	the basic 	teaching
assignment. 	Evidence was 	provided that 	the 	employer's 	action
caused 	an approximate 	increase 	of 	between 	five 	and 	nine 	hours 	per
week of 	additional work time 	for each teacher. 	Relying on
Imperial. 	Fountain Valley and Corning, 	the Board finds 	that,
absent a valid defense, 	the 	employer violated 	section 	3543.5(c)
when 	it 	implemented the 	subject modifications 	in the 	fourth 	and
fifth grade teachers' 	daily work schedule.
On appeal, 	the District argues 	that the CBA 	specifically
authorized 	the 	District 	to alter the 	teachers' 	work day 	schedule
as 	it did. 	The District points 	to 	several provisions 	of 	the CBA
to demonstrate the District's 	control 	over the teachers' 	time
during the work day. 	The 	District argues 	section 	9.5 	provided
for 	4 5 minutes 	of preparation but did not require 	it to be during
17

the 	instructional day. 	Section 	9.10 	specified the 	types 	of
duties 	non-instructional 	time was 	to 	be used for. 	And 	section
9.7 	authorized 	the principal 	to 	make 	assignments 	regarding 	the
teachers' 	work day. 	The District 	specifically asserts 	that
section 	9.12 	required the 	teachers 	to 	teach up 	to 	320 	daily
minutes 	of 	instruction. 	Prior to the 	schedule change, 	the
teachers 	taught 	270 	instructional 	minutes 	daily.
In 	support of 	its 	claim, 	the District relies 	on Marysville
Joint Unified School District 	(1983) 	PERB Decision No. 	314. 	In
Marysville, 	the 	District reduced the 	teacher's 	lunch break 	from
50 minutes 	to 	30 minutes. 	The Board held that while the District
was 	free to grant teachers 	a 	lunch break in excess 	of 	30 	minutes,
the decision to reduce 	the 	lunch break to no more 	that 	30 	minutes
1
was 	consistent with its 	contractual 	rights. 	The District
contends 	that 	it modified the 	schedule 	to require 	315
instructional 	minutes 	for the 	1989-90 	school year as 	permitted by
the CBA. 	The District argues 	that 	it was 	not precluded 	from
moving closer to the actual terms 	of 	the 	contract.
Section 	9.12 	of 	the 	CBA 	establishes 	the daily 	instructional
requirement 	for the 	students. 	The 	evidence provides 	that 	this
provision was 	enacted 	in response 	to 	SB 	813 	which required that
specified 	levels 	of 	student 	instruction time be maintained. 	As
this 	provision was 	not 	intended to 	establish a 	minimal 	level 	of
instructional time 	for individual 	teachers, 	the District's
argument must 	fail.
18

The District next 	argues 	that 	assuming 	the 	schedule 	change
:was 	a negotiable 	item, 	the District was 	relieved of 	any duty to
bargain the matter because TAC 	failed to 	request 	negotiations.
The 	District points 	to 	the 	absence 	of 	a demand to 	negotiate 	by
TAC after Principal Justus' 	meeting with the 	fourth and 	fifth
grade teachers 	in May 	1989. 	At that meeting Justus 	provided a
proposed 	schedule 	and 	informed 	the 	teachers 	that 	the pull 	out
program would be 	eliminated 	and 	the 	resulting 	schedule 	changes
would have an impact 	on their preparation periods. 	Teacher 	James
Crump 	reviewed 	the proposed 	schedule 	and 	indicated 	to 	Justus 	that
the 	schedule 	change was 	a negotiable 	item.
was	~-
The 	District agrees 	that while TAC did not 	receive 	formal
notice of the proposed change 	in the teachers' 	schedule, 	TAC did
acquire actual notice from Justus. 	The District, 	citing Victor
Valley Union High School 	District 	(1986) 	PERB Decision No. 	565,
noted that, 	"Even in the absence of 	formal notice, 	proof that
such 	an official 	had actual 	notice 	of 	the proposed 	change will
suffice."
An 	exclusive 	representative 	can be 	found to 	have waived 	the
right to bargain where the 	employer 	shows 	that 	the 	exclusive
representative 	failed to 	request bargaining, 	despite receiving
sufficient notice of the 	intended charge. 	(Id. 	at pp. 	4-6.) 	In
The Regents 	of the University of California 	(1990) 	PERB Decision
No. 	826-H, 	p. 	8, 	the Board held that, 	in a unilateral
implementation case, 	a charging party must 	file an unfair
practice charge when it has 	actual or constructive 	notice of 	a
19

clear Intent to 	implement the 	change, 	and may not rest on 	its
rights 	until 	actual 	implementation occurs.
In this 	case, 	the testimony of 	Justus 	and Crump 	clearly
indicates 	that 	the 	scheduling 	changes 	discussed 	at 	the 	May 	1989
meeting did not amount to 	actual 	or 	constructive 	notice 	of 	the
District's 	clear 	intent 	to 	implement 	a unilateral 	change 	in the
teachers' 	schedule. 	At the hearing, 	Justus 	characterized the
content of the May 	1989 	meeting with the 	effected teachers 	as
" . 	. 	.a proposal of 	some options that could be used." 	Justus
also testified 	that he had not yet made 	a 	final 	decision as 	to
the 	schedule 	for the 	1989-90 	school 	year as 	of 	the date of 	that
meeting. 	Similarly, 	Crump characterized the meeting as 	a
discussion involving a 	"tentative" 	or 	"potential" 	schedule 	for
the 	following year. 	Crump 	also 	testified that 	he 	and Justus
agreed, 	after further discussion, 	that the options presented by
Justus 	at the meeting would result 	in a 	change 	in working
conditions, 	which would require negotiation. 	This 	evidence does
not 	support a 	finding that 	in May 	1989, 	the District 	expressed a
clear 	intent 	to 	implement a 	change 	in policy.
The District 	further contends 	that 	the April 	1989 	"Effects
of 	Layoff" 	agreement 	addressed the 	elimination of 	the pull 	out
program. 	The District argues 	that the 	language of 	section 2.16
permits 	them to 	implement changes 	in the teachers' 	schedule 	as 	a
result of 	the elimination of the pull 	out program. 	Once
6See page 	14 	for text of Effects of Layoff 	agreement 	section
2.1.
20

implementation had occurred, 	TAC 	could raise the 	issue 	at 	the
bargaining 	table.
The 	language of the April 	1989 	agreement 	supports 	a
conclusion that TAC was 	attempting to reserve a right to 	itself,
rather 	than grant 	a 	broad 	sweeping waiver 	of 	the 	employer's 	duty
to negotiate on 	future unknown District 	actions. 	The 	language
relied upon does 	not 	support 	the District's 	contention that 	TAC,
when it 	signed the April 	1989 document, 	waived 	its 	right 	to
negotiate the August 	1989 	unilateral 	schedule modification 	for
its 	fourth and 	fifth grade teachers.
On appeal, 	the District alleges 	the ALJ failed to
acknowledge the District's 	business 	necessity 	in 	late August 	to
set up a 	schedule 	for the 	1989-90 	school year. 	When a public
school employer is 	faced with a true emergency, 	the 	employer may
successfully defend a unilateral 	change 	in the 	status 	quo 	on the
basis 	of 	business 	necessity. 	(Fountain Valley Elementary 	School
District 	(1987) 	PERB Decision No. 	625; 	San Francisco Community
College District 	(1979) 	PERB Decision No. 	105.) 	The evidence in
this 	case 	fails 	to 	establish 	that 	an emergency 	existed which was
sufficient to necessitate the revision of the teachers' 	schedule.
Further, 	the District did not provide any argument 	in 	support of
its bare assertion of this defense. 	Accordingly, 	this 	exception
is without merit.
The District also excepts 	to the ALJ's 	finding that TAC's
charge was 	timely 	filed. 	The ALJ 	found that TAC did not have
sufficient notice 	of 	the 	schedule modification until 	the 	teachers
21

arrived at 	school 	for the 	start of 	the 	1989-90 	school 	year on
August 31, 	1989, 	and therefore, 	the December 18, 	1989, 	filing of
the 	unfair practice 	charge 	occurred within the 	six-month period.
The District asserts 	the 	evidence 	supports 	its 	claim that 	TAC had
sufficient notice of 	the 	change 	in the 	latter part 	of May 	1989,
and thus, 	the unfair labor practice charge was 	not timely 	filed.
The 	six month time period 	in which 	a 	charge may be 	filed
begins 	to run on the date 	the 	charging party has 	actual 	or
constructive 	notice 	of 	the respondent's 	clear 	intent 	to 	implement
a unilateral 	change 	in policy, 	providing that nothing 	subsequent
to that date evinces 	a wavering of that 	intent. 	Regents 	of 	the
University of California 	(UC-AFT) 	(1990) 	PERB Decision No.
826-H. 	For the reasons discussed above, 	the Board 	finds 	that TAC
did not receive actual 	or constructive notice at the May 	198 9
meeting. 	Accordingly, 	the time period for filing a 	charge did
not begin to run as 	a result 	of 	information related 	at 	the May
meeting.
At the hearing in this 	case, 	there was also testimony
concerning 	communications 	on this 	issue 	between the parties
during the 	first week of August 	1989, 	and then again on
approximately August 31, 	1989, 	when the teachers reported to
school 	and received a 	copy of 	the 	1989-90 	school 	year 	schedule.
Notice was 	certainly adequate as of August 	31, 	1989, 	when the new
schedule was 	distributed to 	the 	teachers.7
77The 	Board need 	not 	determine whether 	the 	communication 	in
the 	first week of August 	constituted 	adequate 	notice 	to 	start 	the
six-month time period running, 	as 	adequate notice at any time 	in
22

Finally, 	the 	District 	contends 	the ALJ 	erroneously allowed
TAC to amend its 	complaint at the hearing, 	thereby allowing a
substantive 	change 	in TAC's 	charge 	from a 	claim that 	the
preparation period had been decreased 	to 	one 	that 	the preparation
period had been eliminated. 	As 	such, 	the District contends 	it
did not have adequate notice 	of 	the 	charges 	against 	it.
PERB 	Regulation 326488 provides:
During hearing, 	the 	charging party may move
to 	amend the 	complaint by 	amending the 	charge
in writing, 	or by oral motion on the 	record.
If 	the 	Board agent determines 	that amendment
of the charge and complaint 	is 	appropriate,
the Board agent 	shall permit amendment. 	In
determining the 	appropriateness 	of 	the
amendment, 	the Board agent 	shall 	consider,
among other factors, 	the possibility of
prejudice to the respondent.
At the hearing 	in this 	case, 	the ALJ allowed the amendment
noting TAC was 	merely amending 	the 	complaint 	to 	reflect 	the
evidence produced at the hearing. 	The District 	contends 	only
that 	the 	late 	amendment 	"allowed a 	substantive 	change 	in the
entire 	case 	-- 	from 	a 	claim that 	the preparation period had 	been
decreased 	to 	one 	that 	the preparation time 	had been 	eliminated."
The 	theory 	of 	law upon which 	the violation was 	based was 	not
affected by the 	amendment 	of 	the 	factual 	basis 	for the 	charge.
As 	such, 	it is difficult to determine what, 	if any, 	prejudice
August would result 	in a determination that 	the 	charge was 	timely
filed.
8 PERB Regulations 	are 	codified 	at California Code 	of
Regulations, 	title 8, 	section 31001 	et seq.
23

resulted from this 	amendment. 	Therefore, 	this 	exception has 	no
merit.
CONCLUSION
The 	Board 	finds 	that 	the 	District 	unilaterally 	increased 	the
fourth and 	fifth grade teachers' 	work day without 	first meeting
and negotiating 	in good 	faith 	in violation of 	EERA 	section
3543.5(c). 	Further, 	when the employer refuses or fails 	to meet
and negotiate 	in good 	faith with 	an 	exclusive 	representative 	it
concurrently denies 	to 	that 	entity 	its 	right to 	represent 	its
members, 	a violation of 	section 3543.5(b). 	As there were no
facts 	supporting an independent violation of 	subdivision 	(a), 	no
such violation 	is 	found.
REMEDY
In order to remedy the unfair practice 	found 	in this 	case,
it 	is 	appropriate 	to 	issue 	a 	cease 	and desist 	order 	and 	a make
whole remedy. 	There 	is 	evidence that the accepted rate 	for the
voluntary 	relinquishment 	by 	a 	teacher 	of 	his 	or her preparation
period 	on a 	long term basis was 	one-seventh 	of 	the 	teacher's
salary. 	In Corning Onion High School District, 	supra. 	PERB
Decision No. 	3 99, 	the Board imposed a remedy for unlawfully
converting 	a preparation period 	to 	an 	instructional 	period,
"ordering the 	District to 	afford the 	teachers 	a 	corresponding
amount of time off." 	The 	Board also provided an alternative
monetary 	compensation remedy, 	should 	the parties 	fail 	to 	reach
agreement 	concerning 	time 	off.
24

In accord with the above, 	the District 	is directed to grant
to 	each 	affected 	fourth and 	fifth 	grade 	teacher 	an amount 	of 	time
off which comports with one-seventh of his 	or her daily
instructional 	time 	for 	each day 	the 	teacher was 	unlawfully
required 	to work 	the 	modified 	daily work 	schedule 	implemented by
the District at the 	start of the 	1989-90 	school year. 	However,
monetary 	compensation is 	a valid alternative measure 	of 	the 	harm
suffered. 	Therefore, 	if 	the District and TAC 	cannot agree on the
manner in which the time off will be 	granted, 	monetary
compensation 	commensurate with 	the 	extra 	hours 	worked will 	be
granted to 	the 	employees 	for which agreement 	is 	not 	reached. 	Any
affected 	employee who 	is 	no 	longer 	employed by 	the 	District
should be 	immediately 	compensated 	monetarily. 	Any 	monetary 	award
shall 	include 	interest at the rate of 	ten 	(10) 	percent per annum.
The District 	is 	also 	required to post 	a notice 	incorporating
the terms of this 	Order.
ORDER
Based upon the 	foregoing 	and 	the 	entire 	record 	of 	this 	case
it 	is 	found 	that 	the 	Cloverdale 	Unified 	School 	District 	violated
section 3543.5(b) 	and 	(c) 	of the Educational Employment Relations
Act. 	Pursuant to Government Code 	section 3541.5(c) 	it 	is 	hereby
ORDERED 	that 	the Cloverdale 	Unified 	School 	District 	and 	its
representatives 	shall:
25

A. 	CEASE AND DESIST FROM:
; 	1. 	Unilaterally modifying the daily work 	schedule 	for
its 	fourth and 	fifth grade teachers 	in 	such a manner as 	to 	cause
an increase in the teachers' 	work day.
2. 	Refusing or 	failing to meet 	and negotiate 	in good
faith with the Teachers Association of Cloverdale, 	the exclusive
representative of 	the certificated 	employees 	of 	the District.
3. 	Denying to the Teachers Association of Cloverdale
rights 	guaranteed to 	it by 	the 	Educational 	Employment 	Relations
Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Grant 	to 	each affected 	fourth and 	fifth grade
teacher 	an amount 	of 	time 	off which 	comports with 	one-seventh 	of
his 	or her daily 	instructional 	time 	for 	each day 	the 	teacher was
unlawfully 	required 	to work 	the 	modified 	daily work 	schedule
implemented by the 	District 	at 	the 	start 	of 	the 	1989-90 	school
year or, 	if agreement cannot be reached as 	to the manner 	in which
to 	grant 	such time 	off or 	if 	an individual 	is 	no 	longer 	in the
District's 	employ, 	monetary 	compensation 	commensurate with 	the
one-seventh 	formula 	set 	forth 	above. 	Any monetary payment 	shall
include 	interest at the rate of ten 	(10) 	percent per annum.
2. 	Restore the work 	schedule 	for the 	fourth and 	fifth
grade teachers 	to the pre-1989-90 	school 	year 	status 	or to 	a
status 	that 	does 	not 	improperly 	extend 	the work day beyond 	that
of 	the 	1988-89 	school year.
26

3. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	post 	at
all 	Cloverdale 	Unified 	School 	District 	sites 	and 	all 	other work
locations where notices 	are 	customarily placed, 	copies 	of 	the
Notice 	attached hereto as 	an Appendix. 	The Notice must 	be 	signed
by 	an authorized 	agent 	of 	the 	Cloverdale 	Unified 	School 	District,
indicating that 	it 	shall 	comply with the 	terms 	of 	this 	Order.
Such posting 	shall 	be maintained 	for 	a period 	of 	thirty 	(30)
consecutive work days. 	Reasonable 	steps 	shall be taken to 	insure
that the Notice 	is 	not reduced 	in size, 	altered, 	defaced or
covered by 	any other material.
4. 	Written notification of the actions 	taken to comply
with this 	Order 	shall be made 	to 	the 	San Francisco Regional
Director of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with her instructions. 	Continue to report 	in writing to 	the
Regional Director thereafter as directed. 	All 	reports 	to the
Regional 	Director 	shall 	be 	concurrently 	served 	on the 	charging
party herein.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
27

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-1361,
Teachers 	Association of Cloverdale 	v. 	Cloverdale 	Unified 	School
District. 	in which all parties had the right to participate, 	it
has 	been found that the Cloverdale 	Unified 	School 	District
violated the 	Educational 	Employment 	Relations Act, 	Government
Code section 3543.5(b) 	and 	(c).
As 	a result of this 	conduct, 	we have been ordered to post
this 	Notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally modifying the daily work 	schedule 	for
its 	fourth and 	fifth grade 	teachers 	in 	such a 	manner as 	to 	cause
an increase 	in the teachers' 	work day.
2. 	Refusing or 	failing to meet 	and negotiate 	in good
faith with the Teachers Association of Cloverdale, 	the 	exclusive
representative 	of 	the certificated 	employees 	of 	the 	District.
3. 	Denying to the Teachers Association of Cloverdale
rights 	guaranteed 	to 	it by 	the 	Educational 	Employment 	Relations
Act.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES 	OF 	THE ACT:
1. 	Grant to each affected 	fourth and 	fifth grade
teacher 	an amount 	of 	time 	off which 	comports 	with 	one-seventh 	of
his 	or her daily 	instructional 	time 	for 	each day the 	teacher was
unlawfully 	required 	to work 	the 	modified 	daily work 	schedule
implemented by the District 	at 	the 	start 	of 	the 	1989-90 	school
year or, 	if 	agreement cannot be reached as 	to the manner 	in which
to grant 	such time off or if an individual 	is 	no 	longer 	in the
District's 	employ, 	monetary compensation 	commensurate with the
one-seventh 	formula 	set 	forth above. 	Any monetary payment 	shall
include 	interest at the rate of ten 	(10) 	percent per annum.
2. 	Restore the work 	schedule 	for the 	fourth and 	fifth
grade teachers 	to the pre-1989-90 	school 	year 	status 	or to a
status 	that does 	not 	improperly 	extend 	the work day 	beyond 	that
of the 	1988-89 	school year.
Dated:_ 	CLOVERDALE 	UNIFIED 	SCHOOL
DISTRICT
By Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORK DAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.