Willits Unified School District (PERB 0912E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WILLITS 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
V .
WILLITS 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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Case No. 	SF-CE-1413
PERB Decision No. 	912
December 5, 	1991
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Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for the Willits Teachers Association, 	CTA/NEA; 	Littler,
Mendelson, 	Fastiff & Tichy by Richard J. 	Currier and C. 	Anne
Hudson, 	Attorneys, 	for the Willits Unified School District.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by the Willits 	Unified
School 	District 	(District) 	to 	the attached proposed decision of 	a
PERB 	administrative 	law 	judge 	(ALJ) 	which held that 	the 	District
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA)1 by unilaterally 	implementing a
EERA 	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
guaranteed by this 	chapter. 	For purposes 	of
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______________ )

change 	in policy 	regarding 	granting 	released 	time 	for
negotiations.
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.
We have 	carefully reviewed the 	entire 	record, 	including 	the
proposed decision, 	the transcript, 	the District's exceptions, 	and
the response of the Willits Teachers Association, 	CTA/NEA
(Association).2 Finding the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free 	from error, 	we adopt the proposed
decision as 	the decision of 	the 	Board 	itself.
The proposed decision 	is 	fully 	supported 	by 	the 	record 	and
adequately addresses 	all but 	one of 	the 	District's 	exceptions.
The; District excepts to the ALJ's 	failure to address 	its 	request
for attorneys' 	fees 	and costs 	in the proposed decision. 	The
District contends 	it is 	entitled to attorneys' 	fees 	and costs 	on,. . .
the 	ground that the 	original 	unfair practice 	charge 	(as 	opposed
to the amended charge) 	was 	filed in bad 	faith, 	with reckless
2It 	is 	noted that a 	typographical 	or technical 	error occurs
in a portion of the proposed decision, 	wherein the April 	2, 	1990
PERB 	informal 	settlement 	conference 	is 	referred 	to 	as 	having
occurred on April 	4. 	This 	inaccuracy occurs 	at page 	17, 	the
first full paragraph, 	line 2, 	page 	19, 	first full paragraph,
lines 2 and 	13, 	and page 21, 	line 2 of the proposed decision.
3It is noted that assuming, 	arguendo, 	the District was
unaware 	the 	settlement 	conference would 	turn 	into 	negotiations 	at
the 	time 	it 	denied 	released 	time 	to 	the Association negotiator,
it 	could have 	rectified 	this 	error when 	it became 	apparent 	that
negotiations 	were 	being 	conducted.
. . .
2

disregard for the 	truth and without 	any possible 	factual 	support.
As the 	original 	and amended unfair practice 	charges 	state 	the
same 	central 	allegation regarding the denial 	of 	released 	time,
and the 	Board affirms 	the ALJ's 	findings 	and conclusions 	that 	the
District 	committed 	an unfair practice when 	it 	denied 	released
time, 	the Board denies 	the District's 	request for attorneys' 	fees
and costs.
ORDER
Based upon the 	foregoing 	findings of 	fact, 	conclusions 	of
law and the entire record 	in the 	case, 	it 	is 	found that the
Willits 	Unified School 	District violated 	section 	3543.5(c) 	of 	the
Educational 	Employment 	Relations 	Act 	by 	unilaterally 	changing 	the
past practice on released time 	for negotiations. 	Because 	this
act had the 	effect of 	interfering with the right 	of 	a 	negotiator
for the "Willits Teachers Association,. CTA/NEA, 	to participate in
the activities of an employee organization, 	the denial of
released time also was a violation of 	section 3543.5(a). 	Because
this 	act 	had the 	further effect of 	interfering with the 	right 	of
the Association to represent 	its 	members, 	the denial 	of 	released
time also was a violation of 	section 3543.5(b). 	Pursuant to
section 3541.5(c) 	of the Government Code, 	it hereby is ORDERED
that the District, 	its governing board and its 	representatives
shall:
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A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the past practice on
released 	time 	for Association representatives 	to participate 	in
negotiations.
2. 	By the same conduct, 	interfering with the right of
a unit member to participate 	in the 	activities 	of 	an employee
organization.
3. 	By the 	same conduct, 	interfering with the right of
the Association to represent 	its 	members.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Reinstate the past practice on released time 	for
Association 	representatives 	to 	attend 	negotiations 	with 	the
District 	and 	refrain 	from making 	future 	changes 	in 	the 	released
time policy without 	giving prior notice 	to 	the Association 	and
the 	opportunity to 	negotiate.
2. 	Restore to 	Larry Stranske 	the day of personal
necessity leave he expended to attend the April 	2, 	1990, 	Public
Employment 	Relations 	Board 	settlement 	conference.
3. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision is 	no 	longer 	subject to reconsideration, 	post at
all work 	locations where 	notices 	to 	certificated 	employees
customarily are posted, 	copies 	of 	the Notice attached as 	an
Appendix hereto, 	signed by an authorized agent of 	the 	employer.
Such posting 	shall be maintained 	for a period of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be taken to 	ensure
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that the Notice 	is not reduced in size, 	defaced, 	altered or
covered with 	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
accord with 	the 	director's 	instructions.
Chairperson Hesse 	joined 	in this 	Decision.
Member Carlyle's 	dissent begins 	on page 	6.
un
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CARLYLE, Dissenting: 	I 	would reverse 	the administrative 	law
judge's 	(ALJ) 	conclusion that 	the Willits 	Unified 	School 	District
(District) violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational Employment Relations Act 	(EERA).
The ALJ 	determined 	that 	the 	District 	violated 	EERA when 	it
failed to 	grant paid 	released 	time 	to 	Larry 	Stranske 	(Stranske)
to 	attend a 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
settlement conference on April 	2, 	1990, 	concerning an unfair
practice charge.
An employer' s unilateral 	change in terms 	and conditions
of 	employment within the 	scope of representation is, 	absent 	a
valid defense, 	per 	se refusal 	to negotiate and violative 	of 	EERA
section 	3543.5(c). 	(Pajaro Valley Unified School 	District 	(1978)
PERB Decision No. 	51; 	San Mateo County Community College 	District
(1979) 	PERB Decision No. 	94.)
EERA section 3543.l(c) 	expressly grants 	a right to a
reasonable amount 	of 	released time 	to representatives 	of
the Willits Teachers Association, 	CTA/NEA 	(Association) 	for
negotiations 	and processing of 	grievances. 	PERB has 	held that
proposals 	relating 	to 	released 	time 	are 	mandatory 	subjects 	for
bargaining. 	(Anaheim Union High School 	District 	(1981) 	PERB
Decision No. 	177.)
The ALJ 	correctly noted 	that 	an 	established policy 	may 	be
embodied 	in the 	terms 	of 	a 	collective bargaining agreement 	(Grant
Joint Union High School 	(1982) 	PERB Decision No. 	196), 	or, 	where
a 	contract 	is 	silent or ambiguous, 	it may be determined 	from past
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practice 	or bargaining history 	(Rio 	Hondo 	Community College
District 	(1982 V PERB Decision No., 279). 	The case at hand
involves 	an 	alleged unilateral 	change 	in 	established policy where
the collective bargaining agreement 	is 	silent. 	Therefore, 	the
Association has 	the burden to 	show by past practice 	that 	the
District 	established 	a policy 	of 	granting 	released 	time 	for 	the
Association's members' 	attendance at PERB 	settlement conferences.
The facts 	indicate that the District, 	in the past, 	has
granted 	released 	time 	for 	its 	employees 	to 	attend 	a 	California
Teachers Association 	(CTA) 	leadership conference, 	a CTA-sponsored
human relations 	conference 	and the 	District's 	budget 	committee
meetings. 	However, 	the granting of released time 	for attendance
at conferences 	for 	self-improvement, 	or at a budget 	committee
hearing at the request of the District's 	superintendent, 	is
vastly different 	from the 	situation that 	occurred here. 	Released
time 	for a 	PERB 	settlement 	conference has 	never been granted 	as
it has never been requested. 	Moreover, 	attendance at the
settlement 	conference was 	based upon an unfair practice 	charge
being filed. 	The 	situation of the parties was 	one 	of 	litigation
and the parties were 	compelled to 	attend 	at 	the direction of 	the
Board. 	The 	fact that the District has 	never refused a 	request
for released time 	cannot 	be used 	to 	establish 	a binding past
practice which 	grants 	Association representatives 	released 	time
to 	attend PERB 	settlement 	conferences 	since 	no 	request 	had 	ever
been made. 	Therefore, 	I 	conclude that the Association has 	failed
to meet 	it	1 - 	s 	burden of demonstrating 	a past practice 	regarding 	the
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providing of 	released time 	for 	appearance 	at 	a 	PERB 	settlement
conference.	'
As 	to whether a past practice has 	been established 	in regard
to providing released time 	for negotiations, 	I would disagree
with the 	rationale 	set 	forth by the ALJ.
It 	is apparent that, 	although the contract does not provide
for released time 	for negotiations, 	it has been the policy of
the District 	to 	grant released 	time 	for all 	negotiations 	meetings
during the 	school day. 	However, 	based upon the findings 	of 	fact,
the 	District was 	under a good 	faith belief 	that 	the 	settlement
conference would 	not be 	considered 	negotiations.
In his proposed decision, 	at page 	19, 	the ALJ 	states:
It is apparent, 	moreover, 	that both sides
knew, 	or should have known, 	of the clear
possibility that 	the 	settlement 	conference
would turn into a negotiating session. 	. 	. 	.
It 	is 	true that the District 	superintendent
and the Union officers were new to PERB
unfair practice proceedings 	and might 	not
have known what to expect. 	But 	counsel 	for
the 	District 	and 	the 	CTA representative
present 	for the 	Union were 	experienced
professionals 	in PERB proceedings.
The 	facts 	of the case were undisputed. 	Stranske 	initially
requested released 	time 	to 	attend 	the 	PERB 	settlement 	conference.
The principal of Willits High School, 	G. 	Keller McDonald,
approved Stranske's absence. 	However, 	McDonald, 	unsure whether
released 	time was 	properly granted, 	contacted 	superintendent
James Roberts 	(Roberts). 	Roberts believed that Stranske would
be 	entitled to released time 	if 	the 	conference was part 	of
negotiations. 	Roberts, 	unsure as to whether the PERB hearing
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was negotiations, 	called the District's 	legal 	counsel 	for advice.
District's,legalvcounsel 	stated that 	the 	conference was 	not
negotiations. 	Moreover, 	the District's belief that the hearing
would not be negotiations 	is 	rather evident by the 	District's
primary 	negotiator 	failing to 	attend 	the 	conference.
This 	record and the ALJ's 	findings 	fail to 	show that 	the
District knew that negotiations would take place. 	Under 	PERB
Regulation 32650(a):
A 	Board 	agent 	may 	conduct 	an 	informal
conference 	or conferences 	to 	clarify the
issues 	and explore the possibility of
voluntary 	settlement. 	No 	record 	shall 	be
made at 	such a 	conference.
It 	is possible 	that 	either party may attend 	a 	settlement
conference and 	state there was 	nothing to talk about. 	If 	this
occurred here, 	an unfair practice 	charge would not have 	been
filed. 	To put the burden upon the District to guess 	as 	to
whether 	negotiations 	would 	take place 	at 	the 	settlement
conference would do more 	to 	"chill" 	the possibility of 	settlement
than to:increase 	its 	likelihood. 	At 	the 	time 	of denying 	Stranske
released time, 	the District was 	under a good faith belief 	that
this 	session would 	not be 	considered negotiations. 	Therefore,
when District administrators made 	their decision, 	which 	is
the 	subject of the charge 	in this 	case, 	the District did not
unilaterally 	change 	a past practice 	of providing 	released 	time
for negotiations.
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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-1413,
Willits 	Teachers Association. 	CTA/NEA v. 	Willits 	Unified School
District, 	in which all parties had the right to participate, 	it..
has 	been 	found 	that 	the 	Willits 	Unified 	School 	District
(District) 	has violated sections 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act. 	The 	District violated 	the
act 	by 	unilaterally 	changing 	the 	past 	practice 	on 	released 	time
for negotiations. 	This 	action amounted to a 	failure to negotiate
in good 	faith 	and 	it 	interfered 	both with 	the 	right 	of 	Larry
Stranske 	to participate 	in the activities 	of an employee
organization and the 	right 	of 	the Willits 	Teachers Association,
CTA/NEA 	(Association), 	to represent its members.
As 	a result of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the past practice 	on
released 	time 	for Association representatives 	to participate 	in
negotiations.
2. 	By the same conduct, 	interfering with the right of
a 	unit member to participate 	in the 	activities 	of 	an 	employee
organization.
3. 	By the same conduct, 	interfering with the right of
the Association to represent 	its 	members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES OF THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Reinstate the past practice on released time 	for
Association 	representatives 	to 	attend 	negotiations 	with 	the
District 	and 	refrain 	from making 	future 	changes 	in the 	released
time policy without 	giving prior 	notice 	to 	the Association and
the 	opportunity 	to 	negotiate.

2. 	Restore 	to Larry 	Stranske 	the day of personal
necessity leave he expended to attend the April 	2, 	1990, 	Public
Employment 	Relations 	Board 	settlement 	conference.
D a t e d : _ 	WILLITS 	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.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
WILLITS 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
WILLITS 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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) 	Unfair Practice
Case No. 	SF-CE-1413
PROPOSED 	DECISION
(5/20/91)
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Appearances: 	California 	Teachers 	Association 	by 	Ramon 	E. 	R o m e r o ,
Staff 	Attorney, 	for 	the 	Willits 	Teachers 	Association, 	CTA/NEA;
Littler, 	Mendelson, 	Fastiff 	& 	Tichy 	by 	Richard 	Currier, 	A t t o r n e y ,
for 	the 	Willits 	Unified 	School 	District.
Before 	Ronald 	E. 	Blubaugh, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
This 	case 	raises 	the 	issue 	of 	whether 	a 	school 	employer
committed 	an 	unfair 	practice 	by 	denying 	released 	time 	for 	a 	union
negotiator 	to 	attend 	a 	Public 	Employment 	Relations 	Board
proceeding. 	The 	union 	contends 	that 	the 	denial 	of 	released 	time
was 	a 	change 	in 	past 	practice 	and 	a 	failure 	to 	negotiate 	in 	good
faith. 	In 	addition, 	the 	union 	contends, 	the 	action 	constituted 	a
denial 	of 	the 	union's 	statutory 	right 	to 	released 	time. 	The
school 	employer 	replies 	that 	its 	action 	was 	not 	a 	change 	from 	the
past 	practice 	and 	thus 	not 	a 	failure 	to 	negotiate 	in 	good 	faith.
The 	employer 	also 	rejects 	the 	contention 	that 	it 	denied 	the 	union
any 	statutory 	right.
The Willits 	Teachers 	Association, 	CTA/NEA 	( U n i o n ) , 	commenced
this 	action 	on July 	12, 	1990, 	by 	filing 	an unfair practice 	charge
against 	the 	Willits 	Unified 	School 	District 	(Employer 	or
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.
(
e

District). 	The Union filed an amended charge on October 	24,
.1990. 	The general 	counsel 	of 	the 	Public 	Employment Relations
Board 	(PERB or Board) 	followed on November 7, 	1990, 	with a
complaint 	against 	the District.
The complaint alleges that on or about April 	2, 	1990, 	the
District 	changed 	its 	past practice 	on granting 	released 	time 	to
all designated Union representatives. 	This practice, 	the
complaint 	alleges, 	included 	attendance 	at 	"problem 	solving
sessions 	relating to working conditions 	of 	employees, 	all 	Budget
Committee meetings 	of Respondent, 	and all 	contract 	negotiations
committee 	sessions." 	The 	complaint 	alleges 	that 	the 	District
changed 	the past practice when 	it 	denied 	released 	time 	to 	a
representative 	of 	the Union to 	attend 	a PERB 	informal
conference.1 The 	complaint 	alleges 	that 	the 	change 	in past
practice was 	a 	failure 	to 	negotiate 	in good 	faith 	in violation of
Educational 	Employment Relations Act 	section 3543.5(c) 	and
derivatively 	(a) 	and 	(b).' 	As a separate cause of action, 	the
The 	informal 	conference 	concerned 	unfair practice 	case
SF-CE-1357, 	Willits Teachers Association. 	CTA/NEA v. 	Willits
Unified 	School 	District.
2Unless 	otherwise 	indicated, 	all 	statutory references 	are to
the 	Government 	Code. 	The 	Educational 	Employment 	Relations Act
(EERA) 	is 	codified at Government Code 	section 3540 	et 	seq. 	In
relevant part, 	section 3543.5 provides as 	follows:
It 	shall be unlawful 	for a public 	school
employer to:
(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
N
	2

complaint 	alleges 	that 	the denial 	of 	released 	time 	also was 	a
denial 	of 	rights 	guaranteed to 	the 	Union under the 	EERA 	in
violation of 	section 3543.5(b). 	The District answered the
complaint on November 20, 	1990, 	denying that it changed any
policy or that 	it denied 	any rights 	to 	the 	Union or 	its 	members.
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.
A one-day hearing was 	conducted 	in Ukiah on March 	1, 	1991.
With 	the 	filing of briefs, 	the matter was 	submitted 	for decision
on May 9, 	1991.
FINDINGS 	OF 	FACT
The Respondent, 	Willits Unified School District, 	is a public
school 	employer under the EERA. 	The Charging Party, 	Willits
Teachers Association, 	CTA/NEA, 	is the exclusive representative of
the 	District's 	certificated 	employee 	unit.
The 	events 	at 	issue 	are the product of 	a prior unfair
practice 	case between these parties. 	That prior case,
SF-CE-1357, 	involved a dispute over the application of a
provision 	in the 	negotiated 	agreement 	between 	the 	Union 	and 	the
District. 	The disputed provision, 	found 	in Appendix B3 to the
3Appendix 	B, 	Certificated 	Salary 	Schedule 	Cost 	of 	Living
Index, 	reads as follows:
District 	base 	income 	shall 	be defined as 	the
revenue 	limit per ADA.
w3

agreement, 	sets 	out a formula under which teachers 	are 	entitled
to 	share 	in 	increased District 	revenues. 	The 	formula provides
that 	80 	percent of 	funding augmentations 	to the 	District's 	base
income 	revenue 	limit 	shall 	be 	set 	aside 	for teacher 	salary
cost-of-living 	increases.
An 	increase 	in District base 	income 	shall
result 	in 	an 	across-the-board percent
increase 	of 	the 	District 	certificated 	salary
schedule. 	The percent 	salary 	schedule
increase 	shall 	equal 	at 	lease 	[sic] 	0.8
(8/10) 	of the District base 	income revenue
limit percent 	[emphasis 	in original]
increase. 	[F]or example, 	if the District's
total base income, 	as defined above,
increases 	10%, 	teachers' 	salaries shall
increase at 	least 	8%.
The 	salary increase may go higher, 	if
additional funds, 	i.e. 	Prop 98 monies,
increases 	of ADA by 	10 	or more over the
fiscal year, 	or like monies, 	are available
after 	representatives 	of 	the 	Board 	and 	staff
have 	explored 	and 	evaluated 	other programs.
Appendix B, 	however, 	fails to 	set out a timetable under
which 	the 	cost-of-living 	increases 	are 	to be 	granted. 	By 	the
fall 	of 	1989 	the parties were 	in a 	serious dispute about 	the
timing of the pay increases. 	On October 	11, 	Union President
Lawren Giles 	wrote 	to 	the 	District 	demanding that under
Appendix 	B 	teachers 	be 	given a 	3.17 	percent pay 	increase,
-retroactive to the previous 	July 	1. 	District Superintendent
James 	Roberts 	responded on October 23, 	denying the 	Union's
request. 	The 	superintendent 	noted that Appendix 	B was 	a 	subject
in reopener negotiations 	which had 	commenced on October 	10.4
4Revision of Appendix 	B had been raised by the 	District 	as 	a
subject 	in the 	reopener negotiations.
44

Because 	the parties were negotiating about Appendix 	B, 	he
concluded 	that 	the 	District was 	not 	obligated 	by 	the provision 	to
grant 	an 	immediate pay 	increase. 	Superintendent 	Roberts wrote
that 	any 	salary 	adjustment would have 	to 	await 	the 	completion of
collective 	bargaining.
The parties 	negotiated through 	the 	fall, 	meeting on eight
occasions. 	The 	subject of Appendix B arose 	at 	every meeting.
Superintendent 	Roberts 	testified 	that Appendix 	B was 	discussed
"at 	length." 	The 	District 	continued 	to press 	for modification
of 	the provision and 	the 	Union continued 	to press 	for 	an
'immediate pay 	increase under 	it. 	The 	superintendent 	acknowledged
in 	testimony 	that 	the two 	issues 	became 	"enmeshed." 	Ultimately,
the parties 	reached a 	stalemate 	in bargaining. 	On December 	7,
1989, 	the 	PERB declared the 	existence of 	an 	impasse and appointed
a 	mediator to 	assist 	the parties.
On December 	11, 	1989, 	the Union filed an unfair practice
charge 	against 	the District, 	alleging a unilateral 	change 	for
refusal to implement Appendix B. 	On February 27, 	1990, 	the
general 	counsel 	of 	the PERB 	issued 	a 	complaint 	against 	the
District. 	The 	complaint 	alleged 	that 	the 	District had 	changed
the past practice 	by 	its 	refusal 	to 	implement Appendix 	B 	and
thereby 	failed 	to 	negotiate 	in good 	faith.
A 	settlement 	conference 	in the 	unfair practice 	case was
scheduled for April 2, 	1990, 	in San Francisco. 	Two
representatives 	of 	the 	Union 	requested 	released 	time 	to 	attend,
Lawren Giles, 	the chapter president, 	and Larry Stranske, 	the
Un
	5

chief negotiator. 	Mr. 	Giles 	testified that Mr. 	Stranske's
presence 	at 	the 	informal 	conference was 	critical 	for 	the 	Union.
He 	said that under the 	Union's 	rules,
. 	. 	. 	any negotiated change in the language
of Appendix B 	could 	only be 	done by 	the
negotiating team 	or 	by 	the 	chief 	negotiator.
The 	chief 	negotiator had 	been 	empowered by
the 	executive 	council 	of 	the Association to
act 	at the 	PERB hearing 	in their 	stead 	as 	a
negotiator, 	and he 	[Mr. 	Stranske] 	was the
only one with 	any 	empowerment 	or 	authority 	to
do 	any 	negotiating 	or 	any 	changes 	in the
language 	of Appendix 	B.
The 	District 	granted 	released time 	for Mr. 	Giles 	but declined 	it
for Mr. 	Stranske. 	Mr. 	Stranske was 	able to attend the conference
only by using a day of personal 	necessity 	leave.
District 	administrators 	initially were 	uncertain 	about
whether Mr. 	Stranske 	should be granted released 	time 	to 	attend
the 	PERB 	settlement 	conference. 	Mr. 	Stranske had assumed he was
entitled 	to 	released 	time 	and 	completed 	the 	appropriate 	form 	to
secure a 	substitute teacher to 	cover his 	absence. 	The principal
of Willits High School, 	G. 	Keller McDonald, 	Mr. 	Stranske's
supervisor, 	approved 	the 	absence 	and 	coded 	the 	form to 	charge 	the
cost 	of 	the 	substitute to 	the District.
Had matters 	remained unchanged, 	Mr. 	Stranske would have
received 	released 	time 	to 	attend 	the 	settlement 	conference. 	But
Mr. 	McDonald was 	uncertain that he was 	correct 	in charging 	the
'
cost of 	the 	substitute to the District. 	He raised the matter
with the superintendent, 	Mr. 	Roberts, 	who also was uncertain.
Mr. 	Roberts 	believed that 	if 	the 	conference were part 	of
negotiations, 	Mr. 	Stranske would be entitled to released time.
6

But if the conference were not negotiations, 	then Mr. 	Stranske
would not be entitled to released time. 	Mr. 	Roberts 	telephoned
counsel 	for 	the 	District 	to 	ask if 	a 	PERB 	settlement 	conference
was 	a part of 	negotiations. 	He was 	advised that the 	settlement
conference was 	not negotiations.
On the basis of counsel's advice, 	Mr. 	Roberts 	concluded that
Mr. 	Stranske 	could be 	excused to 	attend 	the 	settlement 	conference
only 	if 	he used a day of personal 	necessity 	leave. 	Under the
contract between the parties, 	a teacher can use up to 	10 days 	of
sick 	leave 	each year as 	personal 	necessity 	leave.5 The
superintendent 	instructed the principal 	to 	inform Mr. 	Stranske
that 	if 	he wanted to attend 	the 	settlement 	conference he would
have 	to 	take 	a 	day personal 	necessity 	leave.
When the principal 	advised Mr. 	Stranske of 	the
superintendent's 	decision, 	he did not 	leave 	the 	teacher 	any 	other
option. 	The decision to 	require use of personal 	necessity 	leave
already had been made and 	it was 	conveyed 	firmly to Mr. 	Stranske.
Mr. 	Stranske 	testified that both by 	content 	and tone he
interpreted 	the 	superintendent's 	decision as 	final. 	Based on
this, 	he believed it would have been futile to request
negotiations 	about 	the decision.
5Article X, 	section 	5, 	of 	the contract between the parties
permits 	teachers 	to 	take personal 	necessity 	leave,
. 	. 	. 	for matters of a compelling personal
concern which 	cannot 	be 	lightly 	disregarded
by 	the 	employee 	and which 	cannot be handled
outside of working hours.
7

Mr. 	Stranske, 	Chapter President Giles and California
Teachers 	Association 	representative 	George 	Cassell 	attended 	the
PERB 	settlement 	conference 	for the 	Union. 	Superintendent 	Roberts
and Attorney 	Richard 	Currier 	attended 	for 	the 	District. 	Neither
Mr. 	Roberts 	nor Mr. 	Currier were members 	of the District's
negotiating 	team.
The 	settlement 	conference was 	conducted by 	a 	PERB
administrative 	law judge. 	Initially, 	the parties 	met 	together
with 	the 	administrative 	law judge. 	Later, 	they were 	separated.
After the 	separation, 	the administrative 	law judge 	served 	as 	a
mediator, 	carrying proposals 	back and 	forth between the 	two
sides. 	At the beginning, 	the proposals were broad and covered
several 	items 	that were the 	subject of the 	impasse 	in the
parties' 	continuing contract negotiations. 	When this proved
fruitless, 	the proposals 	became more 	narrow and 	focused 	solely 	on
the dispute 	about Appendix 	B.
After approximately three hours, 	the parties 	reached a
settlement agreement. 	Under the agreement, 	the District granted
unit 	members 	an 	across-the-board pay 	increase 	of 	3.63 	percent,
retroactive to July 	1, 	1989. 	The District 	further agreed to
implement Appendix B 	"on or about September 	1 	of 	each year as
long 	as Appendix 	B 	remains 	unchanged through negotiations."
Even though 	resolution of 	the 	unfair practice 	charge 	did 	not
result 	in the 	removal 	of Appendix 	B 	from the on-going
negotiations, 	Union leaders 	saw the 	settlement as 	a 	significant
advance. 	Mr. 	Stranske testified that 	the District's 	concession	. . . ..
8

on an 	implementation date 	for Appendix 	B 	removed 	"a 	major
stumbling block" 	from the 	negotiations.6 He 	also 	testified 	that
while 	the wage 	increase produced 	by 	the 	implementation 	of
Appendix 	B did not 	resolve 	the 	salary 	issue 	in negotiations, 	"it
made 	it a 	lot closer."
Historically, 	the 	District has 	been very 	liberal 	in granting
released 	time 	to unit members. 	Prior 	Superintendent 	Robert
Kirkpatrick, 	who was 	a witness 	for the Union, 	could not cite any
example 	of 	the denial 	of 	released 	time 	requested by 	a 	Union
representative. 	Four unit members 	who had 	served 	as 	chapter
presidents 	similarly 	testified 	that 	they 	knew of 	no 	previous
denial 	of 	released 	time 	requested 	by 	a 	Union representative.
A 	series 	of witnesses 	described 	numerous 	situations 	in which
the 	District 	granted 	released 	time 	for a 	variety 	of 	activities.
Released 	time was 	granted 	for 	a 	former 	chapter 	officer 	to 	attend
a 	California Teachers Association 	(CTA) 	leadership 	conference.
Released 	time was 	granted to unit members 	on at 	least 	two
occasions 	to 	attend CTA-sponsored 	human relations 	conferences.
It was 	granted 	on at 	least 	two 	other occasions 	for attendance 	at
CTA-sponsored 	"stay well" 	conferences. 	Released 	time 	also was
granted 	to various 	Union 	representatives 	to 	attend 	meetings 	of
the 	superintendent's 	budget 	committee.
6In agreeing 	to 	implement Appendix 	B 	on or about 	September 	1
of 	future years, 	the District went well beyond the 	confines 	of
the 	unfair practice 	charge 	at 	issue. 	While 	the 	PERB 	could have
ordered 	the 	District 	to 	implement 	the 	clause 	forthwith 	for 	1989
raises, 	it could not have 	fixed a date 	in the contract 	for
implementation in 	future years.
99

Contractual 	language 	on released time 	is 	not 	comprehensive.
Only 	one 	contractual 	provision 	specifically 	authorizes 	released
time 	and 	it 	concerns 	grievances. 	This 	section provides 	that 	if 	a
grievance 	meeting must 	be 	conducted during 	the 	regular work day,
. 	. 	. 	any employee required by either party
to participate as 	a witness 	or grievant 	in
such meeting 	or hearing 	shall 	be 	released
from regular duties without 	loss 	of pay 	for a
reasonable time.
Although 	not 	specifically authorized by 	the 	contract, 	the
District 	also 	grants 	released 	time 	to 	Union officers 	or others
who 	represent 	grievants.
The 	contract 	makes 	no 	specific 	allowance 	for released 	time
for negotiations,7 but 	it 	is 	undisputed that Union
representatives 	are 	granted 	released 	time 	for 	all 	negotiations
meetings 	during the 	school day. 	The practice has 	included
released 	time 	for mediation 	sessions8 which 	occur during 	the 	day.
The 	superintendent 	testified 	that 	if 	negotiations 	occur 	during
the 	school 	day 	then 	the 	absence 	is 	considered 	school-related 	for
purposes 	of released time. 	Typically, 	the parties 	negotiate both
during and after 	school hours. 	Often, 	a negotiating 	session will
7The only 	contractual 	reference 	is 	a provision that
negotiations 	shall 	take place 	"at mutually agreeable 	times 	and
places." 	It authorizes 	the Union to,
. 	. 	. 	designate a representative from each
school plus two 	(2) 	consultants 	as needed to
attend 	negotiations 	and 	impasse proceedings.
This 	number may be 	modified by 	the
Association to 	a 	lesser number of
representatives.
8"[I]mpasse proceedings" 	in the language of Article VI,
section 	3(e) 	of the agreement between the parties.
10

begin 	during 	the 	school 	day with 	teachers 	on 	released 	time 	and
extend 	into 	the 	evening.
Prior 	to 	case 	SF-CE-1357, 	there 	never had been an unfair
practice 	charge 	filed against 	the 	District. 	There 	is 	not 	now and
never 	has 	been 	a 	written 	or 	unwritten policy which 	specifically
requires 	the 	District 	to 	grant 	released 	time 	to 	Union
representatives 	attending 	PERB 	settlement 	conferences.
LEGAL 	ISSUES
1) 	Should 	the 	charge 	be 	dismissed 	as 	untimely 	filed 	under
Section 	3541.5(a) ( D ?
2) 	Did 	the 	District 	unilaterally 	change 	its 	released 	time
policy 	and 	thereby 	fail 	to 	negotiate 	in 	good 	faith 	in 	violation
of 	Section 3543.5(c) 	and, 	derivatively, 	(a) 	and/or 	(b)?
3) 	Did 	the 	District 	unreasonably deny 	released 	time 	to 	a
representative 	of 	the 	exclusive 	representative 	in 	violation 	of
Section 3543.5(b) 	and, 	derivatively, 	(a)?
CONCLUSIONS 	OF 	LAW
Timeliness
The 	District 	argues 	that 	the 	charge 	must 	be 	dismissed 	as
untimely 	because 	the 	amended 	charge 	was 	filed 	more 	than 	six
months 	after 	the 	conduct 	at 	issue. 	The 	District 	argues 	that 	the
amended 	charge 	attempts 	to 	state 	a 	"new 	and 	different 	past
practice" 	from 	the 	original 	charge 	and was 	therefore 	untimely.
The 	original 	charge 	alleged 	a 	past 	practice 	of 	released 	time 	to
attend 	PERB 	informal 	conferences 	whereas 	the 	amended 	charge
11

alleged 	a past practice 	of 	released 	time 	"for problem-solving
sessions 	relating to working 	conditions.
Under Section 	3541.5(a)(1) 	the PERB 	is precluded 	from
issuing 	"a 	complaint 	in respect 	of 	any 	charge based upon an
alleged 	unfair practice 	occurring 	more 	than 	six 	months 	prior 	to
the 	filing of 	the 	charge." 	However, 	an exception 	"may be made
where 	an amended 	charge 	is 	found to 	'relate back' 	to the 	original
charge." 	(See Temple City Unified 	School District 	(1989) 	PERB
Decision No. 	Ad-190 	and cases 	cited therein.)
The original charge, 	filed on July 	12, 	1990, 	and the amended
charge, 	filed on October 24, 	1990, 	both state the same central
allegation, 	i.e., 	that the 	District 	committed an unfair practice
when 	it 	denied 	released 	time 	to 	Larry 	Stranske 	on or 	about
April 	2, 	1990. 	All 	else 	is an elaboration of 	factual allegation
and 	legal 	theory. 	Since both the 	original 	and amended 	charge 	are
based on and allege 	the 	same 	central 	fact, 	the amended 	charge 	is
timely under 	the 	relation back doctrine.
The 	District's 	argument 	on timeliness 	is 	therefore 	rejected.
Alleged 	Unilateral 	Change
It 	is well 	settled that an employer that makes 	a pre-impasse
unilateral 	change 	in an established, 	negotiable practice violates
its 	duty to meet 	and negotiate 	in good faith. 	(NLRB v. 	Katz
(1962) 	369 	U.S. 	736 	[50 LRRM 2177].) 	Such unilateral 	changes are
inherently destructive 	of 	employee 	rights 	and are 	a 	failure per
se 	of 	the duty to negotiate 	in good faith. 	(See 	Davis 	Unified
School District et al. 	(1980) 	PERB Decision No. 	116; 	State of
12

California 	(Department of Transportation) 	(1983) 	PERB Decision
No. 	361-S.)
Established practice 	may be 	reflected 	in a 	collective
bargaining 	agreement 	(Grant 	Joint 	Union 	High 	School 	District
(1982) 	PERB Decision No. 	196) 	or where the agreement is vague or
ambiguous, 	it may be determined by an examination of bargaining
history 	(Colusa 	Unified 	School 	District 	(1983) 	PERB 	Decisions
No. 	296 	and 	296(a)) 	or the past practice 	(Rio Hondo Community
College District 	(1982) 	PERB Decision No. 	279; 	Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51).
An employer makes no unilateral change, 	however, 	where an
action the 	employer takes 	does 	not alter the 	status 	quo. 	"[T]he
'status 	quo' 	against which an employer's 	conduct 	is 	evaluated
must 	take 	into 	account 	the 	regular 	and 	consistent past patterns
of 	changes 	in the 	conditions 	of 	employment." 	(Pajaro Valley
Unified School District, 	supra, 	PERB Decision No. 	51.) 	Thus,
where 	an employer's 	action was 	consistent with 	the past practice,
no violation,was 	found 	in a 	change 	that did 	not 	change 	the 	status
quo. 	(Oak Grove School District 	(1985) 	PERB Decision No. 	503.)
It is clear, 	initially, 	that the subject of this dispute,
released time, 	is 	by 	specific 	Board holding a negotiable matter
under the 	EERA. 	Released 	time 	is 	related to the 	enumerated
subjects 	of wages 	and hours.9 It 	is 	a 	subject well-suited to
99Section 	3543.2 	provides 	in relevant part as 	follows
(a) 	The 	scope of representation shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
13

"the mediatory 	influence 	of 	negotiations" 	for resolution of
disputes. 	(Anaheim Union High School 	District 	(1981) 	PERB
Decision No. 	177; 	See also, 	Compton Community College District
(1990) 	PERB Decision No. 	790.)
of 	employment. 	"Terms 	and conditions 	of
employment" 	mean health 	and welfare benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment policies, 	safety conditions
of employment, 	class size, 	procedures to be
used 	for the 	evaluation of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	the 	layoff of probationary
certificated 	school 	district 	employees,
pursuant 	to 	Section 	44959.5 	of 	the Education
Code, 	and alternative compensation or
benefits 	for 	employees 	adversely 	affected by
pension 	limitations 	pursuant to 	Section 	22515
of the Education Code, 	to the extent deemed
reasonable 	and without violating 	the 	intent
and purposes of 	Section 415 	of 	the 	Internal
Revenue Code. 	. 	. 	.
The 	alleged unilateral 	change 	at 	issue 	occurred when 	the
District 	refused 	released 	time 	for 	the 	Union's 	chief 	negotiator
to 	attend a 	PERB 	settlement 	conference. 	This 	settlement
conference was 	conducted 	in an attempt to 	resolve 	a
contract-based dispute between the parties. 	The 	Union had
charged 	the 	District with 	failing to 	negotiate 	in good 	faith 	by
its 	delay 	in implementing a 	salary 	increase. 	Specifically, 	the
Union 	charged 	that 	the 	District 	had 	failed 	to 	grant 	employees 	a
3.17 	percent 	raise 	retroactive 	to 	the previous 	July 	1st 	as
required under the 	contract between the parties. 	This 	claim was
based on the 	Union's 	interpretation of 	the 	appropriate pay 	raise
under Appendix B of the agreement between the parties. 	The
14

settlement 	conference 	ended with 	an agreement 	and withdrawal 	of
the unfair practice 	charge.
Although 	the 	parties 	resolved 	the 	dispute 	over Appendix 	B 	at
the 	settlement 	conference, 	they promptly 	fell 	into 	the present
dispute 	over released time. 	The 	Union argues 	that 	in denying
released time to 	its 	chief negotiator, 	the District unilaterally
changed a past practice of 	liberal 	released time. 	The 	Union
contends 	that by any description, 	the PERB 	settlement 	conference
was 	in fact 	a negotiating 	session. 	Since 	the 	contract 	clearly
provides 	for released time 	for negotiations, 	the 	Union argues,
the denial was 	a unilateral 	change.
In 	support 	of 	its 	contention that 	the 	settlement 	conference
constituted negotiations, 	the 	Union points 	both to 	the agreement
that 	ultimately was 	reached 	and 	to 	the 	nature 	of 	the 	conference
itself. 	Plainly, 	the Union asserts, 	the discussions at the PERB
informal 	conference were 	"a 	continuation of 	the discussions 	that
had 	been 	taking place 	in the 	negotiations 	and mediations 	earlier
in the year." 	The only difference, 	the Union argues, 	between the
discussion over Appendix 	B 	that 	occurred 	at 	the 	settlement
conference 	and 	the 	discussions 	held 	in regular 	negotiations 	was
the presence of 	a PERB agent. 	Citing the EERA definition of
"meeting 	and negotiating,"10 the Union argues 	that 	the parties 	at
10EERA 	section 	3540.1 	sets 	out 	the 	following definition;
(h) 	"Meeting and negotiating" 	means meeting,
conferring, 	negotiating, 	and discussing by
the 	exclusive 	representative 	and 	the public
school 	employer 	in a 	good 	faith 	effort 	to
reach agreement 	on matters within the 	scope
15

the PERB 	conference 	engaged 	in the 	statutory 	activities 	of
meeting, 	conferring, 	negotiating" 	and 	"discussing."
of 	representation and the 	execution, 	if
requested by either party, 	of 	a written
document 	incorporating 	any 	agreements
reached, 	which document 	shall, 	when accepted
by 	the 	exclusive 	representative 	and 	the
public 	school 	employer, 	become binding upon
both parties 	and, 	notwithstanding 	Section
3543.7, 	shall not be 	subject to 	subdivision 2
of 	Section 	1667 	of the Civil Code. 	The
agreement may be 	for a period of 	not 	to
exceed three years.
The 	District 	rejects 	the 	argument 	that 	the 	settlement
conference was 	a negotiating 	session. 	The District argues 	that,
under the 	contract, 	negotiations 	occur only at mutually agreeable
times and places. 	There 	is no evidence, 	the District argues,
that 	the parties 	ever agreed that 	the 	PERB 	conference was 	a
negotiating session. 	Moreover, 	the District argues, 	a 	school
employer 	is 	required 	to 	grant 	released 	time 	only 	for 	negotiating
sessions 	which 	are 	required under the 	EERA. 	A PERB 	settlement
conference 	is 	not 	such a meeting, 	the District concludes.
At the hearing, 	the District objected, 	on the basis 	of
confidentiality, 	to the Union's 	introduction of 	evidence 	about
the 	settlement 	conference. 	Although PERB regulation 	3265011 sets
11Regulation 32650 provides 	as 	follows:
(a) 	A Board agent may 	conduct 	an informal
conference 	or 	conferences 	to 	clarify the
issues 	and 	explore 	the possibility of
voluntary 	settlement. 	No 	record 	shall 	be
made at 	such a 	conference.
(b) 	A Board agent 	shall 	give reasonable
notice of 	such 	conference 	to 	each party
directed 	to 	attend.
16

out no 	specific 	rule on confidentiality, 	confidentiality may be
inferred 	from 	the prohibition 	against 	the 	making of 	a 	record.
Moreover, in Modesto 	City 	Schools 	and 	[High] 	School 	District
(1981) 	PERB Decision No. 	Ad-117, 	the Board concluded that public
policy 	requires 	confidentiality 	for 	settlement 	conferences.
There, 	the Board refused to 	issue a 	subpoena 	for a Board agent's
testimony about 	a 	settlement 	conference. 	The Board observed 	that
exposure 	of 	"the 	content 	of 	settlement 	negotiations 	to 	the 	light
of 	a public hearing 	[might] 	well 	discourage 	the parties 	from
sincerely 	engaging 	in 	such discussions."
Despite 	the policy reasons 	favoring 	confidentiality, 	the
District's 	objection to testimony about the April 	4, 	1990, 	PERB
settlement 	conference 	is 	misplaced. 	An 	examination of 	the
disputed 	testimony 	demonstrates 	that 	the 	Union does 	not 	rely 	on
"the 	content of 	the 	settlement 	negotiations." 	(Modesto City
Schools 	and [High] School District, 	supra, 	PERB Decision
No. 	Ad-117.) 	The 	specific 	arguments or offers 	of 	compromise made
by 	the 	District were not 	placed 	into 	evidence by the 	Union 	and
are 	not 	at 	issue. 	Rather, 	the 	evidence 	introduced by the 	Union
concerns 	the procedure, 	technique 	and method by which 	the
conference was 	conducted.
The 	Union relies 	upon 	evidence 	about technique 	to 	show that
what 	occurred was 	contractual 	negotiations 	about 	a 	disputed 	term
of 	a 	collective bargaining agreement. 	Confidentiality of
settlement discussions 	is designed to protect 	statements, 	not
techniques 	or 	style. 	For this 	reason, 	consideration of the
17

evidence 	by 	the 	Union about 	the 	settlement 	conference 	is 	not
barred 	by 	the 	policy 	favoring 	confidentiality.12
It 	is 	undisputed that 	at 	the time the charge was 	filed the
parties were 	in negotiations 	about Appendix B 	as part of 	a
reopener. 	Through an exchange of 	letters 	in October of 	1989,13
both parties 	acknowledged that 	the 	issue was 	then at 	the
negotiating table. 	Indeed, 	it was 	the District's position that
since Appendix B was 	a 	subject 	in the reopener, 	it would have
been 	inappropriate to grant 	a pay 	increase 	at 	that 	time.
Evidence 	introduced by 	the 	Union 	shows 	that 	the
administrative 	law 	judge who 	conducted 	the 	PERB 	settlement
conference 	served 	as 	a mediator. 	He 	carried proposals 	back and
forth, 	including proposals 	about 	impasse-related 	subjects 	other
than Appendix 	B. 	The 	settlement 	agreement 	called 	for the
District 	"as 	soon as possible, 	but not later than May 	15, 	1990"
to provide a 	3.63 	percent pay 	increase, 	effective July 	1, 	1989.
The 	District 	further 	agreed 	to 	implement 	future Appendix 	B pay
increases 	on or about September 	1 	of 	each year 	so 	long as
Appendix 	B remains 	unchanged by negotiations. 	The 	agreement
simplified 	the 	remaining disputes 	in 	the 	on-going 	negotiations.
Moreover, 	any 	claim of 	confidentiality most 	likely was
waived when the parties 	agreed to 	enter a 	copy of 	the 	settlement
agreement, 	Joint Exhibit No. 	3, 	into the record. 	By placing the
agreement 	into 	the record, 	the parties 	opened the 	record to
questions 	designed to 	clarify 	ambiguities 	in the 	agreement. 	This
includes 	the bargaining history. 	Statements made 	at 	the
settlement 	conference 	that would 	assist 	in 	interpretation would
therefore be 	admissible.
13Charging Party Exhibits No. 	4 	and 5.
18

Regardless 	of what 	it was 	called and or how 	it was 	arranged,
the meeting of the parties on April 4, 	1990, was, 	in fact, 	a
negotiating 	session. 	Representatives 	of 	the District 	and 	the
Union met 	and 	engaged 	in a 	give-and-take 	to 	resolve 	one 	facet 	of
an on-going dispute about wages. 	It 	is 	of 	no 	significance 	that
the 	District's 	regular negotiator was 	absent. 	The 	superintendent
and 	legal 	counsel, 	who 	attended the 	informal 	conference 	on behalf
of 	the 	District, 	evidenced 	clear authority to 	reach an agreement
binding on the District. 	At the 	conclusion, 	they executed a
written 	settlement 	agreement 	which 	not 	only 	resolved 	the 	instant
dispute 	but 	also 	established 	a policy 	for 	the date 	of 	future
salary 	increases. 	Both 	in 	form and result 	the parties 	on
April 	4, 	1990, 	engaged in 	"meeting and negotiating" 	as defined 	in
the 	EERA.14
It is apparent, 	moreover, 	that both sides knew, 	or should
have 	known, 	of 	the 	clear possibility that the 	settlement
conference would 	turn into 	a 	negotiating 	session. 	Given that 	the
dispute 	about Appendix B was 	a 	key 	issue 	in the 	on-going
negotiations, 	the very 	subject matter of 	the 	settlement
conference was 	a tip-off 	to the possibility of 	negotiations. 	It
is 	true 	that 	the 	District 	superintendent 	and the 	Union officers
were 	new to 	PERB 	unfair practice proceedings 	and might 	not 	have
known what 	to 	expect. 	But counsel 	for the District and the CTA
representative 	present 	for 	the 	Union were 	experienced
professionals 	in PERB proceedings.
14Section 3540.l(h). 	(See footnote no. 	10, 	supra.)
19

No matter, 	the District argues, 	the right to reasonable
released time was 	not 	applicable 	to 	the 	PERB 	settlement
conference. 	Citing Victor Valley 	Union 	High School 	District
(1986) 	PERB Decision No. 	565, 	the District argues that right to
released 	time 	applies 	only when the 	meeting 	and 	negotiating 	is
required by the EERA. 	There 	is nothing, 	the District argues,
which would 	include 	a 	PERB 	settlement 	conference 	as 	a 	statutorily
required 	meeting 	and 	negotiating 	session.
While the 	District's 	citation of Victor Valley 	is 	relevant
to a denial of rights argument, 	it is not a persuasive rebuttal
to 	the unilateral 	change theory 	set out 	in the 	complaint. 	Under
a unilateral 	change theory, 	released time 	is 	simply another
negotiable 	subject 	under 	"hours." 	When an employer makes 	a
unilateral 	change 	in hours, 	its 	conduct 	is 	not excused if 	the
change 	occurred 	during 	impasse procedures 	rather 	than during
negotiations. 	It 	is the unilateral nature of the change 	itself
that 	is 	the violation.
The 	negotiated 	agreement 	does 	not 	spell 	out 	specific 	rules
for released time 	for negotiations. 	There 	is 	abundant 	evidence,
however, 	that 	the District 	never previously declined 	released
time 	on 	the 	frequent 	occasions 	when 	negotiations 	or 	mediation
occurred 	during working hours. 	Numerous 	witnesses 	testified 	that
they had been given released time 	for 	negotiations. 	The
superintendent 	confirmed the practice, 	stating that 	teacher
absences 	for 	negotiations 	occurring during 	the 	school 	day 	are
considered 	school-related 	for purposes 	of 	released 	time. 	The
20

denial 	of released time 	for Mr. 	Stranske to attend the PERB
informal conference on April 	4, 	1990, 	was a change 	in this past
practice.
Accordingly, 	I 	conclude that by denying released time to 	the
Union's 	chief 	negotiator 	to 	attend 	the 	PERB 	settlement
conference, 	the District changed the past practice. 	This 	change
was 	made without prior 	notice 	to 	the 	Union 	and without 	affording
the 	Union a 	reasonable 	opportunity 	to 	negotiate. 	The 	change was
a 	final 	action by the 	time 	the 	Union 	learned of 	it 	and 	any
attempt by the 	Union to negotiate would have been futile. 	I
find, 	therefore, 	that the District 	failed to negotiate 	in good
faith in violation of 	section 3543.5(c).
The 	unilateral 	change 	in released 	time policy 	also
interfered with Mr. 	Stranske's 	ability 	to participate 	in the
activities 	of 	an 	employee 	organization.15 The 	District's
eleventh hour unilateral 	change 	required Mr. 	Stranske 	to 	either
shirk what 	he 	felt were his 	obligations 	to 	the 	Union or 	to use
his personal 	necessity 	leave. 	He 	chose to use his personal 	leave
rather 	than 	skip 	the 	settlement 	conference. 	By requiring
Mr. 	Stranske to make 	such a choice, 	the District 	interfered with
his protected rights 	in violation of 	section 3543.5(a).
15EERA 	section 	3543 	provides 	in relevant part 	that:
Public 	school 	employees 	shall 	have the 	right
to 	form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of 	their
own choosing 	for the purpose of
representation on all 	matters 	of 	employer-
employee 	r e l a t i o n s . . . .
21

The 	unilateral 	change 	in released 	time policy 	likewise
interfered with the 	Union's 	ability to represent 	its 	members.16
As 	the chairman of the negotiating committee, 	Mr. 	Stranske was 	an
important participant at 	the 	settlement 	conference. 	Had he
determined that he 	could 	not 	afford 	to use personal 	leave 	on
Union business, 	the Union's 	interests would not have been as well
represented 	at 	the 	negotiating 	session. 	By 	interfering with 	the
right of the Union's 	agent to attend the meeting, 	the District
interfered with 	the 	right 	of 	the 	Union. 	Such 	interference with
organizational rights was a violation of 	section 3543.5(b).17
Alleged 	Denial 	of 	Organization 	Rights
As 	a 	separate cause of action, 	the general 	counsel alleges
that 	the 	District 	unreasonably denied 	released 	time 	to 	a
representative of the exclusive representative. 	This 	action is
alleged to be 	in violation of 	Section 	3543.5(b) 	and,
derivatively, (a).
By this 	contention, 	the general 	counsel 	impliedly asserts
that 	the 	settlement 	conference was 	in 	fact 	a 	negotiating 	session,
16EERA 	section 	3543.1 	provides 	in relevant part 	that:
(a) 	Employee organizations 	shall have the
right 	to 	represent 	their members 	in their
employment 	relations 	with public 	school
employers, . . .
17The holding here 	that 	the 	District 	failed to 	negotiate 	in
good 	faith by denying released 	time 	to Mr. 	Stranske 	is 	dictated
by the unique circumstances 	of this 	case. 	This 	holding 	is 	based
entirely 	on the 	subject 	of 	the 	settlement 	conference 	and what
happened during 	it. 	There 	is 	no 	intention to 	reach a 	conclusion
about whether Mr. 	Stranske would have been entitled 	to 	released
time 	to 	attend 	a 	PERB 	settlement 	conference 	that 	did 	not 	involve
an on-going 	negotiations 	about 	a 	contractual provision.
. . '
22

as 	was 	found above. 	Also 	implicit 	is 	the theory that 	there
exists 	some minimal 	amount of 	released 	time 	for negotiations 	to
which 	an 	exclusive 	representative 	is 	entitled.18 Inherent 	in 	the
issuance 	of 	the 	complaint 	is 	the 	further assertion that denial 	of
released 	time 	to 	attend 	the 	PERB 	settlement 	conference 	fell 	below
the 	required minimal 	amount 	of 	released 	time.
There 	is 	support 	for an assertion that 	an exclusive
representative 	is 	entitled to 	some undefined, 	minimal 	amount of
released 	time 	for meeting 	and 	negotiating. 	The 	Board 	once
observed 	that 	the 	Legislature had 	declined 	to 	leave 	released 	time
to 	either the 	employer's 	discretion or the 	vagaries 	of
negotiations. 	Rather, 	the Board wrote, 	"a minimum released time
standard was established, 	and thus, 	in effect, 	a standard against
which 	the parties' 	good 	faith 	in negotiating on the 	subject 	could
be measured. "19
However, 	the Board did not define the 	limits 	of 	the 	"minimum
released 	time 	standard" 	in that decision or 	in any 	subsequent
decision. 	Nor has 	the 	Board 	ever 	found 	that a particular 	refusal
to 	grant 	released time amounted 	to 	a denial 	of 	organizational
rights. 	Nevertheless, 	there are decisions which 	suggest how a
18EERA 	section 	3543.1 	provides 	in relevant part 	that:
(c) 	A reasonable number of representatives 	of
an 	exclusive 	representative 	shall 	have 	the
right to 	receive reasonable periods 	of
released 	time without 	loss 	of 	compensation
when meeting 	and 	negotiating 	and 	for 	the
processing of 	grievances.
19See Anaheim Union High School District, 	supra, 	PERB
Decision No. 	177.
23

specific 	denial 	of 	released 	time 	might be 	evaluated 	against 	a
minimum 	standard. 	Generally, 	these 	cases would measure 	the
denial against: 	(1) 	the history of the negotiations or 	(2) 	an
objective 	"patently 	unreasonable" 	standard.
A 	"history of 	the 	negotiations" 	approach was 	suggested 	in
Muroc Unified School District 	(1978) 	PERB Decision No. 	80, 	a case
involving the 	number of 	negotiators 	to be 	granted released 	time.
There, 	the union complained that 	it needed more 	negotiators 	than
the 	employer was willing to provide with 	released time. 	In
evaluating the 	employer's position, 	the Board 	listed a 	series 	of
factors 	which would 	contribute 	to 	determining what was 	a
reasonable 	number of 	negotiators 	to be 	released.
Among the 	factors 	listed 	in Muroc were 	"the 	complexity 	of
the negotiations," 	"the reasonable needs 	of 	the 	employee
organization to 	include representatives 	of 	various 	groups 	on
their 	negotiating team," 	and 	"the 	number of 	hours 	spent 	in
negotiations." 	The 	Board 	also 	looked 	at 	the 	size 	of 	the 	District
and the geographical 	disbursement 	of 	its 	facilities. 	There 	is 	no
evidence 	here 	about 	the 	factors 	examined by 	the 	Board 	in Muroc.
It is 	impossible, 	therefore, 	to judge the District's denial of
released 	time 	on the basis 	of 	the Muroc 	test.
A 	"patently unreasonable" 	standard was 	suggested 	in 	Burbank
Unified School District 	(1978) 	PERB Decision No. 	67, 	a case
involving denial 	of 	released time 	after 	late night 	negotiations.
In that 	case, 	the union complained that 	its 	negotiators 	should
have been given time off 	for rest the day after a 	late
24

negotiating 	session. 	The 	school district refused. 	In evaluating
the 	employer's position, 	the 	Board 	concluded that 	there 	could be
situations 	where 	released 	time would be 	appropriate 	for 	rest.
Such a 	situation, 	the Board observed,
. 	. 	. 	would occur when it would be patently
unreasonable, 	given the legislative 	intent to
limit 	the burden on employee 	representatives,
to 	force 	employee 	organization negotiating
team members 	to 	choose 	between working 	after
the 	negotiating 	session 	ends 	or 	losing pay 	or
sick leave. 	However, 	such circumstances are
rare.
The 	Board 	found 	that 	the 	employer had 	not 	acted 	unreasonably 	in
denying 	the union's 	request.
Here, 	the 	District 	authorized 	released 	time 	for the 	chapter
president 	to attend the PERB 	settlement 	conference, 	but denied
released time 	for the chief 	negotiator. 	Plainly, 	the presence of
the 	chief 	negotiator was 	critical 	for the 	Union because 	only he
had 	the 	authority to 	agree 	to 	the 	negotiated changes. 	Had the
denial 	of 	released time preceded the declaration of 	impasse, 	it
might well 	have 	been 	"patently unreasonable."
However, 	the Board's 	decision in Victor Valley Union High
School District, 	supra, 	PERB Decision No. 	565, 	precludes 	such a
finding 	for 	a post-impasse 	negotiating 	session. 	In Victor Valley
the 	Board 	rejected 	a 	union's 	contention that 	an 	employer had
denied 	statutory 	rights 	when 	it 	refused 	released 	time 	for 	a
negotiating 	session held 	outside 	the 	formal 	impasse procedures.
The Board held that after a declaration of 	impasse, 	the parties
have 	no 	obligation to meet 	and negotiate 	outside 	the presence 	of
the 	appointed negotiator. 	In the 	absence 	of 	an obligation to
25

negotiate, 	the Board concluded, 	the employer has 	no obligation to
grant 	released 	time.
20
Because the PERB 	informal 	conference at 	issue was 	a
post-impasse negotiating 	session, 	I 	find that the District had no
statutory obligation to 	grant 	released 	time 	to 	the 	Union
representatives. 	The District's 	released 	time 	obligation 	for
post-impasse negotiations 	is 	based 	solely on past practice, 	not
on 	statutory 	right.
Accordingly, 	I 	conclude that the Union's 	second cause of	2121
action 	(denial 	of organizational 	rights) 	must be dismissed.
REMEDY
The PERB in section 3541.5(c) 	is given:
. 	. 	. 	the 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.
?0
The Victor Valley 	rationale 	presumably 	overrules 	the
following 	statement 	from Burbank Unified 	School 	District, 	supra,
PERB Decision No. 	67, 	which is 	cited by the Union:
Meeting 	and 	negotiating 	includes 	the 	time
spent at the negotiating table. 	It 	includes
mediation and 	factfinding, 	which are
continuations 	of 	the 	negotiating process.
21This 	conclusion does 	not 	rest 	on Regents 	of 	the 	University
of California 	(1981) 	PERB Decision No. 	189-H. 	Regents 	stands 	for-
the proposition that 	an employer has 	no 	obligation to 	grant
released 	time 	to 	employees 	attending 	a 	PERB 	settlement 	conference
on behalf of a non-exclusive representative. 	In Regents. 	the
Board 	specifically declined 	to 	consider the 	issue here, 	i.e.,
whether 	employees 	appearing 	at 	informal 	proceedings 	on behalf 	of
an 	exclusive 	representative would be 	entitled 	to 	released 	time.
26

Here, 	the 	District unilaterally 	changed the past practice 	on
granting 	released 	time 	to•Union representatives 	for 	negotiations.
The remedy 	in a unilateral 	change 	case 	is 	a 	return to the 	status
quo 	ante 	and 	it will be ordered here. 	It also 	is 	appropriate
that 	Larry 	Stranske be 	made whole 	for 	the 	loss 	of 	released 	time
to attend a PERB 	settlement conference on April 	2, 	1990.
It 	is 	further appropriate 	that the 	District be directed to
cease 	and desist 	from its 	unfair practice 	and to post 	a 	notice
incorporating the terms 	of 	the order. 	Posting of 	such 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 	this
controversy 	and 	the 	District's 	readiness 	to 	comply with 	the
ordered remedy. 	(Placerville 	Union School 	District 	(1978) 	PERB
Decision No. 69. ) 2 2
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the Willits
Unified School 	District 	(District) 	violated 	section 	3543.5(c) 	of
the 	Educational 	Employment 	Relations 	Act 	by 	unilaterally 	changing
the past practice on released 	time 	for negotiations. 	Because
this 	act 	had 	the 	effect 	of 	interfering with 	the 	right 	of 	a
22The District's 	request 	for attorney's 	fees, 	on the 	ground
that the unfair practice 	charge was 	frivolously 	filed, 	is 	denied.
1 .
27

negotiator for the Willits 	Teachers Association, 	CTA/NEA 	(Union),
to participate 	in the activities 	of 	an employee organization, 	the
denial 	of 	released time 	also was 	a 	violation of 	section
3543.5(a). 	Because this 	act had the 	further effect of
interfering with the 	right 	of 	the 	Union to 	represent 	its 	members,
the 	denial 	of 	released time 	also was 	a violation of 	section
3543.5(b). 	Pursuant to section 3541.5(c) 	of the Government Code,
it hereby 	is 	ORDERED that 	the District, 	its 	governing board and
its 	representatives 	shall:
A. 	CEASE AND 	DESIST FROM:
1. 	Unilaterally 	changing the past practice 	on
released 	time 	for 	Union representatives 	to participate 	in
negotiations.
2. 	By the same conduct, 	interfering with the right of
a 	unit member to participate 	in the activities 	of 	an 	employee
organization.
3. 	By the same conduct, 	interfering with the right of
the 	Union to 	represent its 	members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Within ten 	(10) 	workdays 	of the 	service of a 	final
decision 	in this 	matter, 	reinstate the past practice on released
time 	for 	Union representatives 	to 	attend 	negotiations 	with 	the
District. 	Do not make future 	changes 	in the released time policy
without 	giving prior 	notice 	to 	the 	Union 	and the 	opportunity 	to
negotiate.
28

2. 	Within ten 	(10) 	workdays 	of the 	service of 	a 	final
decision 	in this 	matter, 	restore to Larry Stranske 	the day of
personal 	necessity 	leave he 	expended to attend the April 	2, 	1990,
PERB 	settlement 	conference.
3. 	Within ten 	(10) 	workdays 	of the 	service of 	a 	final
decision 	in this 	matter, 	post at all work locations where 	notices
to 	certificated 	employees 	customarily are posted, 	copies 	of 	the
Notice 	attached hereto 	as 	an Appendix. 	The Notice must 	be 	signed
by an authorized agent of 	the District, 	indicating that the
District will 	comply with the terms 	of 	this 	Order. 	Such posting
'shall 	be 	maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be taken to 	ensure that the
Notice 	is 	not reduced in size, 	altered, 	defaced or covered with
any other material.
4. 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken to 	comply with the 	Order 	to 	the
San Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in accord with the director's 	instructions.
Pursuant to California Code of 	Regulations, 	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 Cal. 	Code of Regs.,
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tit. 	8, 	sec. 	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 Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	Proc. 	sec. 	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 itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	May 20, 	1991
Ronald E. 	Blubaugh
Administrative 	Law 	Judge
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