Turlock Joint Union High School District (PERB 1151E)

STATE OF 	CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
TURLOCK AMERICAN 	FEDERATION OF
TEACHERS, 	AFT 	LOCAL 	2424,
Charging 	Party,
v.
TURLOCK 	JOINT UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
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Case 	No. 	S-CE-1697
PERB Decision No. 	1151
May 	22, 	1996
____________________ )
Appearances: 	Van Bourg, 	Weinberg, 	Roger and 	Rosenfeld by 	Stewart
Weinberg, 	Attorney, 	for 	Turlock American 	Federation 	of 	Teachers,
AFT 	Local 	2424; 	Littler, 	Mendelson, 	Fast 	f, 	Tichy 	& Mathiason by
Richard 	J. 	Currier, 	Attorney, 	for 	Turlock 	Joint 	Union High 	School
District.
Before 	Garcia, 	Johnson, 	and 	Dyer, 	Members.
DECISION AND 	ORDER
DYER, 	Member: 	This 	case 	comes 	before 	the 	Public 	Employment
Relations 	Board 	(Board) 	on appeal 	by 	the 	Turlock American
Federation 	of 	Teachers, 	AFT 	Local 	2424 	(Federation) 	from a 	Board
agent's 	dismissal 	(attached) 	of 	its 	unfair practice 	charge. 	The
charge 	alleges 	that 	the 	Turlock 	Joint 	Union 	High 	School 	District
trict) 	violated 	section 	3543.S(b) 	and 	(c) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA) 1 by 	failing 	to 	bargain 	in good
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Section 	3543.5 	states, 	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.

faith
	during
	contract
	reopener
	negotiations. 	After
investigation,
	the
	Board
	agent 	dismissed
	the
	charge
	for
	failure
to
	establish
	a
	prima
	facie
	case
	for
	violation
	of
	the
	EERA.
The
	Board
	has 	reviewed
	the
	entire
	record
	in
	this
	case,
including 	the
	unfair 	practice
	charge,
	the
	Board
	agent's
	dismissal
and
	partial
	warning
	letters,
	the
	Federation's
	appeal
	and
	the
District's
	response
	thereto.
2	
The
	Board
	finds 	the 	dismissal
	and
partial
	warning
	letters
	free
	of
	prejudicial 	error
	and
	adopts
	them
as 	the 	decision
	of 	the
	Board
	itself.
Accordingly,
	the
	unfair 	practice
	charge
	in
	Case
No.
	S-CE-1697
	is
	hereby
	DISMISSED WITHOUT 	LEAVE
	TO
	AMEND.
Members
	Garcia
	and 	Johnson
	joined
	this
	Decision.
(c)
	Refuse 	or
	fail 	to
	meet 	and
	negotiate 	in
good
	faith
	with 	an 	exclusive 	representative.
2
The
	District 	requested 	attorney 	fees 	in 	its
	response 	to 	the
appeal. 	That 	request 	is 	denied. 
2

STATE
OF
CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street,
Room
102
Sacramento, CA
95814-4174
(916)
322-3198
February
	22,
	1996
Richard
	Hemann,
	Field
	Representative
California
	Federation 	of
	Teachers
One
	Kaiser 	Plaza,
	Suite
	1440
Oakland,
	CA
	94612
Re:	
DISMISSAL
	LETTER
Turlock
	American
	Federation 	of 	Teachers,
	AFT
	Local
	2424
	v.
Turlock
	Joint
	Union 	High
	School
	District
Unfair
	Practice
	Charge
	No.
	S-CE-1697
Dear
	Mr. 	Hemann:
On
	October
	18,
	1995, 	you
	filed
	a
	charge
	on
	behalf 	of 	theTurlock
	American
	Federation 	of
	Teachers,
	AFT
	Local
	2424 	(AFT),
	in
which 	you
	allege 	that
	the
	Turlock
	Joint
	Union 	High
	School
District
	(District
	or
	Employer)
	violated 	sections
	3543.5
	(b)
	and
(c)
	of 	the 	Educational
	Employment
	Relations
	Act
	(EERA).
	More
specifically,
	your 	charge
	alleges 	that
	the
	District 	failed 	to
bargain 	in
	good
	faith
	with
	AFT
	in
	the
	current
	round
	of 	bargaining
on
	reopeners.
	As
	evidence 	of 	the
	District's
	bad
	faith
	you
	allege
that 	three 	incidents
	demonstrate 	the
	Districts 	intent.
	The
District
	and
	AFT
	were
	bargaining
	over 	reopeners
	in
	the
	1994-1996
contract.
First,
	you
	contend
	that 	the
	District
	by
	presenting
	a
	single
salary
	proposal
	on
	or
	about
	August 	15, 	1995, 	and
	failing
	to
	move
from
	that
	proposal,
	is
	evidence 	of
	bad
	faith.
	That
	proposal
calls
	for
	a
	3.5%
	increase.
	The
	District
	has 	informed
	AFT
	that
	it
has
	a 	15+%
	reserve
	and
	if
	an 	agreement
	wasn't 	reached 	pre-
impasse,
	it
	had
	room
	to 	increase
	its
	salary 	offer
	another
	1.5%.
Those
	failures
	you
	contend,
	are
	evidence 	of 	the
	District's 	intentto
	slow
	down
	bargaining.
Secondly,
	you
	allege 	that
	the
	District
	refused 	to 	negotiate
issues 	related 	to 	the 	placement 	of
	two
	School 	Improvement
	days
	on
the 	school 	calendar.
	You
	contend
	that
	AFT
	has
	tried 	to 	negotiatethe 	dates, 	but 	the
	District
	refused
	by
	arguing 	the
	SchoolImprovement 	days
	are 	part 	of 	the
	academic
	calendar
	and
	it
	onlyhas
	to 	bargain
	work
	calendars.
Finally,
	you 	contend
	that 	the 	District
	has 	refused 	to 	reopen
Article 	VIII 	of 	the 	current 	agreement 	as
	it
	relates 	to
	new

Dismissal
	Letter
S-CE-1697
February
	22,
	1996
Page
	2
curriculum,
	namely,
	Opportunity 	Class.
	AFT
	seeks
	to 	negotiate
the
	subject
	of
	class 	size
	as
	it
	relates
	to
	this
	new
	offering.
	On
August 	25, 	1995,
	AFT
	made
	a
	formal
	demand
	to
	bargain 	the
	subject.
You
	allege 	that
	when
	Article
	VIII
	was
	negotiated 	the 	OpportunityClass
	was
	not 	contemplated
	and
	since 	the
	class 	size
	maximums
	ofthese
	classes 	effects
	other
	class
	offerings,
	the
	District
	has
	an
obligation 	to
	at
	the 	very
	least
	bargain 	the
	effects.
	The
District
	refused 	to 	bargain
	this
	issue.
I
	indicated 	to
	you,
	in
	my
	attached
	letter
	dated 	of
	November
	3,
1995
	that 	certain 	allegations
	of 	the 	above-referenced
	charge
	did
not
	state
	a
	prima
	facie 	case.
	You
	were
	advised
	that,
	if
	there
were
	any
	factual
	inaccuracies 	or 	additional 	facts
	which 	would
correct
	the
	deficiencies
	explained
	in 	that
	letter,
	you
	should
amend
	the
	charge.
	You
	were
	further
	advised
	that,
	unless
	you
amended
	the
	charge
	to
	state
	a
	prima
	facie
	case
	or
	withdrew
	it
prior 	to
	November
	14, 	1995,
	the
	charge
	would 	be
	dismissed.
Subsequent
	to
	that
	letter,
	we
	have 	had
	several
	phone
	discussionsregarding 	the 	charge,
	and 	you
	did
	submit
	additional
	argument
through
	a
	November
	20, 	1995
	position
	paper.
	As 	we
	discussed, 	the
additional
	argument
	that
	you
	filed
	did 	not
	overcome
	the
deficiencies 	that
	I
	spelled
	out
	in
	the
	November
	3rd
	letter.
In
	addition,
	we
	discussed 	the
	remaining
	allegation 	relating 	to
the
	District's
	refusal 	to 	negotiate
	the 	scheduling 	of
	two
	School
Improvement
	days.
	I
	advised
	you
	that 	this 	allegation
	was
	also
deficient.
	Relying
	on
	Imperial 	Unified
	School
	District
	(1990)
PERB
	Decision
	No.
	825,
	I
	advised
	you
	that
	PERB
	caselaw
	in 	thearea 	of
	work
	schedule, 	placed 	the
	burden 	on
	the 	charging
	party 	to
show
	that
	a
	change
	in 	the
	instructional
	day
	affected 	the
	work
	day
or 	duty
	free
	time 	of
	employees.
	Further,
	PERB
	in
	San
	Jose
Community
	College
	District
	(1982)
	PERB
	Decision
	No. 	240
	in
interpreting
	an
	employer's 	duty 	to 	bargain
	work
	year 	held
	that
the
	substitution
	of 	teaching
	days
	for 	inservice
	days
	did 	not
affect
	a
	matter 	within
	scope
	since 	the 	employer's 	actions 	did
	not
require 	the
	employees
	to
	alter 	their
	workdays
	or 	year.
I
	asked
	you
	to
	provide 	additional 	facts 	that
	might 	demonstrate
some
	impact 	on 	employee 	workday
	or year.
	Through
	our
	phone
conversations,
	I
	learned 	that
	you
	could provide
	no
	additional
facts. 	Therefore,
	I 	am
	dismissing 	the 	charge 	based 	on
	the 	facts
and
	reasons 	contained 	herein
	and
	in
	my
	November 	3, 	1995,
	letter.

Dismissal
	Letter
S-CE-1697
February
	22,
	1996
Page
	3
Right
	to
	Appeal
Pursuant
	to
	Public
	Employment
	Relations
	Board
	regulations,
	you
may
	obtain
	a
	review
	of
	this
	dismissal
	of 	the
	charge
	by
	filing
an
	appeal
	to
	the
	Board
	itself
	within
	twenty
	(20)
	calendar
	days
after
	service
	of
	this
	dismissal.
	(Cal.
	Code
	of
	Regs.,
	tit.
	8,
sec.
	32635(a)
.)
	To
	be
	timely
	filed,
	the
	original
	and
	five 	copiesof
	such
	appeal
	must
	be
	actually
	received
	by
	the
	Board
	itself
before 	the 	close
	of 	business
	(5
	p.m.)
	or 	sent
	by
	telegraph,
certified
	or
	Express 	United
	States
	mail 	postmarked
	no
	later
than 	the
	last
	date
	set
	for
	filing.
	(Cal.
	Code
	of
	Regs.,
	tit.
	8,
sec.
	32135.)
	Code
	of
	Civil
	Procedure
	section
	1013
	shall
	apply.
The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board1031
	18th
	Street
Sacramento,
	CA
	95814
If
	you
	file
	a
	timely 	appeal
	of 	the
	refusal 	to 	issue
	a
	complaint,
any
	other 	party
	may
	file
	with 	the
	Board 	an
	original
	and
	five
copies 	of
	a
	statement
	in
	opposition within
	twenty
	(20)
	calendar
days
	following 	the 	date 	of
	service
	of 	the 	appeal.
	(Cal.
	Code
	ofRegs.,
	tit.
	8,
	sec.
	32635(b)
.)
Service
All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	be
	"served"
upon
	all
	parties
	to 	the 	proceeding,
	and
	a
	"proof 	of 	service"
must 	accompany
	each
	copy
	of
	a
	document
	served
	upon
	a
	party 	or
filed
	with 	the
	Board
	itself.
	(See
	Cal.
	Code
	of 	Regs.,
	tit.
	8,
sec.
	32140
	for 	the 	required 	contents
	and
	a
	sample 	form.)
	The
document
	will
	be
	considered 	properly	
11
served
11	
when
	personally
delivered 	or 	deposited 	in 	the
	first-class
	mail, 	postage 	paid
	and
properly 	addressed.
Extension 	of
	Time
A
request 	for
	an
	extension 	of 	time,
	in
	which
	to
	file
	a
	document
with 	the
	Board
	itself,
	must 	be
	in 	writing
	and
	filed
	with 	the
Board
	at
	the 	previously noted 	address.
	A
request 	for
	an
extension
	must 	be
	f
	ed
	at 	least 	three
	(3)
	calendar 	days
	before
the 	expiration 	of 	the 	time 	required 	for 	filing
	the
	document.The
	request
	must
	indicate
	good 	cause 	for
	and,
	if
	known,
	the
position 	of 	each other 	party 	regarding 	the 	extension, 	and
	shall
be 	accompanied 	by proof 	of 	service 	of 	the 	request
	upon 	each
party. 	(Cal.
	Code
	of 	Regs.,
	tit.
	8, 	sec. 	32132.)

Dismissal
	Letter
S-CE-1697
February
	22,
	1996
Page
	4
Final
	Date
If
	no
	appeal
	is
	filed
	within 	the
	specified
	time
	limits,
	the
dismissal
	will
	become
	final
	when
	the
	time
	limits
	have
	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy
	General
	Counsel
By~~
Ror 	SmithBoard Agent
Attachment
cc: 	Richard
	J.
	Currier

STA
TE
OF
CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room
102
Sacramento, CA
95814-4174
(916)
322-3198
November
	3,
	1995
Richard
	Hemann,
	Field
	Representative
California
	Federation 	of
	Teachers
One
	Kaiser 	Plaza,
	Suite
	1440
Oakland,
	CA
	94612
Re:	
PARTIAL
	WARNING
	LETTER
Turlock
	American
	Federation 	of
	Teachers,
	AFT
	Local
	2424
	v.
Turlock
	Joint
	Union High
	School
	District
Unfair
	Practice
	Charge
	No.
	S-CE-1697
Dear
	Mr.
	Hemann:
On
	October 	18,
	1995,
	you
	filed
	a
	charge
	on
	behalf 	of 	the
Turlock
	American
	Federation 	of 	Teachers,
	AFT
	Local
	2424 	(AFT),
	in
which 	you
	allege 	that
	the
	Turlock
	Joint
	Union 	High
	School
District 	(District
	or
	Employer)
	violated 	sections
	3543.5
	(b)
	and
(c)
	of 	the 	Educational
	Employment
	Relations
	Act
	(EERA).
	More
specifically,
	your 	charge
	alleges 	that
	the
	District 	failed 	to
bargain
	in
	good
	faith
	with
	AFT
	in
	the 	current
	round
	of 	bargaining
on
	reopeners.
	As
	evidence
	of 	the
	District's
	bad
	faith
	you
	allege
that'three
	incidents
	demonstrate
	the
	Districts 	intent.
	The
District
	and
	AFT
	were
	bargaining 	over 	reopeners
	in
	the
	1994-1996
contract.
First,
	you
	contend
	that
	the
	District
	by
	presenting
	a
	single
salary
	proposal
	on
	or
	about 	August 	15, 	1995, 	and
	failing
	to
	move
from
	that
	proposal,
	is
	evidence
	of
	bad
	faith.
	That
	proposal
calls
	for
	a
	3.5%
	increase.
	The
	District
	has 	informed
	AFT
	that
	it
has
	a 	15+%
	reserve
	and
	if
	an
	agreement 	wasn't 	reached pre-impasse,
	it
	had
	room
	to 	increase
	its
	salary offer
	another
	1.5%.
Those
	failures
	you
	contend,
	are
	evidence 	of 	the
	District's 	intentto
	slow
	down
	bargaining.
Secondly, 	you
	allege 	that 	the
	District
	refused 	to 	negotiate
issues 	related 	to 	the 	placement
	of
	two
	School 	Improvement
	days 	on
the 	school 	calendar.
	You
	contend
	that
	AFT
	has
	tried 	to 	negotiatethe 	dates, 	but 	the
	District 	refused
	by
	arguing 	the 	SchoolImprovement 	days 	are 	part 	of 	the
	academic
	calendar
	and
	it
	onlyhas
	to 	bargain
	work
	calendars.
Finally,
	you 	contend 	that 	the 	District
	has 	refused 	to 	reopen
Article 	VIII 	of 	the 	current 	agreement 	as
	it
	relates 	to
	new
curriculum, 	namely, 	Opportunity 	Class.
	AFT
	seeks 	to 	negotiatethe 	subject 	of 	class 	size 	as
	it 	relates 	to 	this
	new
	offering.
	On
August 	25, 	1995, 	AFT 	made 	a
	formal 	demand
	to 	bargain 	the 	subject.
You
	allege 	that
	when
	Article 	VIII 	was 	negotiated 	the 	Opportunity
Class 	was 	not 	contemplated 	and 	since 	the 	class 	size 	maximums 	of

Partial
	Warning
	Letter
S-CE-1697
November
	3,
	1995
Page
	2
these
	classes
	effects
	other
	class
	offerings,
	the
	Qistrict
	has
	an
obligation 	to
	at
	the 	very
	least
	bargain 	the
	effects.
	The
District
	refused 	to
	bargain
	this
	issue.
In 	analyzing
	allegations
	of
	bad
	faith
	on
	"surface
	bargaining,"
PERB
	in
	Muroc
	Unified
	School
	District
	(1978)
	PERB
	Decision
	No.
80,
	stated 	that:
It
	is
	essence 	of 	surface 	bargaining
	that
	a
	party
	goes
through
	the
	motions
	of
	negotiations,
	but
	in 	fact
	is
weaving
	otherwise 	unobjectionable
	conduct
	into
	an
entangling
	fabric
	to 	delay
	or
	prevent
	argument.
Specific
	conduct
	of 	the
	charged
	party,
	which
	when
viewed
	in 	isolation
	may
	be
	wholly
	proper,
	may,
	when
placed
	in
	the
	narrative 	history
	of 	the
	negotiations,
support
	a
	conclusion
	that
	the
	charged
	party
	was
	not
negotiating
	with 	the
	requisite
	subjective
	intent 	to
reach
	agreement.
Examples
	of 	evidence 	of 	surface 	bargaining 	are:
	(1) 	a
	party'sfailure 	to
	respond
	to
	the
	other
	side's
	proposal
	or 	to 	offer
counterproposal;
	(2)
	efforts
	to
	renege
	on
	ground
	rules;
	(3)
insistence
	on
	unrelated 	conditions
	such
	as 	the
	withdrawal
	of
grievances
	or 	unfair 	practice
	charge
	prior
	to 	negotiating
	another
subject:
	(4)
	dilatory 	tactics
	in
	scheduling meetings
	or
	being
late
	to
	meetings:
	or
	(5)
	efforts
	to
	modify
	previously 	agreed
	upon
items.
PERB
	in
	Oakland
	Unified
	School
	District
	(1981),
	PERB
	Decision
	No.
178,
	held
	that
	a
	refusal 	to 	reconcile 	differences
	by
	failing
	to
offer
	counter-proposals 	could
	be
	construed 	as
	bad
	faith
	if
	no
explanation 	supports 	the
	position 	of 	the
	recalcitrant 	party.Total
	inflexibility
	in 	bargaining, 	together 	with
	other 	indicia
may
	be 	grounds
	for 	finding
	bad
	faith.
	See 	Fremont
	Unified
	School
District
	(1980)
	PERB
	Decision
	No.
	136.
	Insistence
	on
	a
	firm
position
	by
	itself,
	however
	is
	not 	evidence 	of
	bad
	faith.
	The
obligation 	to 	bargain 	in
	good
	faith
	only 	requires 	that
	the
parties 	explain 	the 	reasons 	for
	a
	particular 	position 	with
	enough
detail
	to 	"permit 	the 	negotiating 	process 	to
	proceed
	on
	the 	basisof
	mutual
	understanding."
	See
	Jefferson
	School
	District
	(1980)PERB
	Decision
	No.
	133.
In
	this 	case, 	the
	employer 	explained
	its
	position 	relative 	to
movement 	on
	its
	salary proposal 	in 	sufficient 	detail 	to 	allow
"the 	process 	to 	proceed." 	There
	is 	certainly
	no
	requirement 	that
a
	party
	make
	its 	final
	and
	last 	offer
	sometime
	prior 	to
	an
impasse 	being 	declared.

Partial
	Warning
	Letter
S-CE-1697
November
	3,
	1995Page
	3
As
	to
	the
	allegation 	that
	the
	District
	failed
	to
	respond
	to
	a
demand
	to
	bargain
	class 	size 	in
	the
	Opportunity
	classes,
	PERB
	has
held
	that
	an 	employer
	may
	take
	action
	on
	clear
	contract
	language.
Marysville
	Joint
	Unified
	School
	District
	(1983)
	PERB
	Decision
	No.
314.
	Article
	VIII, 	Section
	II
	of 	the 	current
	1994-1996
agreement,
	provides
	that
	"The
	District
	shall
	have
	final 	authorityto
	determine
	class
	size
	and
	pupil
	assignment." 	This
	Article
continues
	by
	stating
	that
	the
	District
	shall
	consider
	such
variables
	as
	nature
	of 	the
	subject
	taught,
	overall
	balance
	of
departments,
	teaching
	methods 	employed
	(lecture
	v.
	laboratory 	or
individualized),
	and
	organization 	of
	instruction,
	i.e.
	team
teaching.
	There
	is
	no
	allegation 	that 	Article
	VIII
	is
	subject 	tothe
	limited 	re-opener
	items
	of
	the 	contract.
	Therefore 	under
Marysville, 	supra,
	no
	complaint 	should
	issue.
For
	these 	reasons 	the
	allegations 	that
	the
	District
	held
	fast
	to
its
	salary
	proposal
	and
	that
	the
	District's
	refusal 	to 	negotiatethe
	class 	size
	of
	Opportunity
	Classes,
	as
	presently written,
	do
not
	state
	a
	prima
	facie
	case.
	If
	there 	are
	any
	factualinaccuracies
	in 	this
	letter
	or 	additional 	facts
	which 	would
correct
	the
	deficiencies
	explained
	above,
	please
	amend
	thecharge.
	The
	amended
	charge 	should
	be
	prepared
	on
	a
	standard
	PERB
unfair 	practice
	charge
	form,
	clearly
	labeled
	First
	Amended
Charge,
	contain
	all
	the
	facts
	and
	allegations
	you
	wish
	to
	make,
and 	be
	signed 	under
	penalty of
	perjury
	by
	the 	charging
	party.
The 	amended
	charge
	must 	be
	served
	on
	the
	respondent
	and
	the
original
	proof 	of 	service
	must
	be
	filed
	with
	PERB.
	If
	I
	do
	not
receive
	an 	amended
	charge
	or
	withdrawal
	from 	you
	before
	November
14, 	1995,
	I
	shall
	dismiss 	the 	above-described
	allegation
	from
your 	charge.
	If
	you 	have 	any
	questions, 	please
	call
	me
	at
	(916)
322-3198
	ext.
	358.
Sincerely,
r~-L~
~g~	
Smith
Board Agent
RCS:cb