Stockton Unified School District (PERB 1211E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STOCKTON TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
STOCKTON UNIFIED SCHOOL DISTRICT,
Respondent.
)
)
)
) 	Case No. 	SA-CE-1693
PERB Decision No. 	1211
June 24, 	1997
)
)
)
)
)
Appearances; 	California Teachers Association by A. 	Eugene
Huguenin, 	Jr., 	Attorney, 	for Stockton Teachers Association,
CTA/NEA; 	Kronick, 	Moskovitz, 	Tiedemann & Girard by James Scot
Yarnell, 	Attorney, 	for Stockton Unified School District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Stockton Unified School District 	(District) 	to a Board
administrative 	law judge's 	(ALJ) 	proposed decision. 	In his
decision, 	the ALJ 	found that 	the District violated section
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA)1 when it unilaterally implemented a policy allowing
1BERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein are
to the Government Code. 	EERA section 3543.5 provides, 	in
relevant 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
)
________________ )

simultaneous 	weapons 	searches 	of 	teachers 	and students without
providing 	the 	Stockton Teachers Association, 	CTA/NEA
(Association) 	with notice 	and an opportunity to meet 	and 	confer
over the 	change.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	the hearing transcript, 	the
District's 	exceptions, 	and the Association's 	response 	thereto.
For the reasons 	that 	follow, 	the Board reverses 	the ALJ's
decision and dismisses 	the 	charge and 	complaint.
PROCEDURAL 	HISTORY
On August 	11, 	1995, 	the Association filed an unfair practice
charge with the Board. 	On October 27, 	1995, 	after a partial
withdrawal 	of 	the 	charge, 	the Board's General 	Counsel 	issued a
complaint 	on 	the 	charge. 	The 	complaint 	alleged 	that 	the District
had violated 	the 	EERA 	"by 	imposing 	a 	random weapons 	search
procedure using metal 	detectors 	on employees." 	The District
answered the 	complaint on November 15, 	1995.
Following 	two days 	of 	formal 	hearing, 	the ALJ issued a
proposed decision holding 	that 	the District's 	conduct violated
EERA section 3543.5(a), 	(b) 	and 	(c). 	On February 25, 	1997, 	the
employees 	because 	of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet 	and negotiate 	in
good 	faith with an 	exclusive 	representative.
22

District 	filed exceptions 	to 	the ALJ's proposed decision. 	The
Association responded to 	those 	exceptions 	on April 	7, 	1997.
FACTS
The 	District 	is 	a public 	school 	employer within 	the meaning
of EERA section 3540.1 (k) . 	The Association is an employee
organization as 	defined by EERA section 	3540.1(d) 	and 	the
exclusive 	representative 	of 	an appropriate 	unit 	of 	employees
within 	the meaning of 	EERA section 3540.l(e).2
On November 23, 	1993, 	the District's governing board
adopted 	a 	resolution 	permitting 	secondary 	school 	administrators
to purchase 	hand held metal 	detectors 	as 	a means 	of 	implementing
the 	District's 	policy prohibiting weapons 	possession by 	students.
In approving 	this 	resolution, 	the 	governing board required:
2EERA section 3540.1 provides, 	in relevant part:
As 	used 	in 	this 	chapter:
(d) 	"Employee organization" means any
organization which 	includes 	employees 	of 	a
public 	school 	employer and which has 	as 	one
of 	its 	primary purposes 	representing 	those
employees 	in 	their 	relations 	with 	that 	public
school 	employer. 	"Employee 	organization"
shall 	also 	include 	any person 	such an
organization authorizes 	to 	act 	on 	its 	behalf.
(e) 	"Exclusive 	representative" 	means 	the
employee 	organization 	recognized 	or 	certified
as 	the 	exclusive 	negotiating 	representative
of 	certificated 	or 	classified 	employees 	in 	an
appropriate 	unit 	of 	a public 	school 	employer.
(k) 	"Public school 	employer" 	or 	"employer"
means 	the 	governing board 	of 	a 	school
district, 	a school 	district, 	a 	county board
of 	education, 	or a 	county superintendent 	of
schools.
33

(1) 	that 	random searches be nondiscriminatory; 	(2) 	that signs
be posted at 	school access points; 	and 	(3) 	that metal detector
operators be trained. 	Thereafter, 	William Correll 	(Correll), 	the
chief 	of 	the District's police 	force, 	developed a District-wide
policy 	implementing 	the 	governing board 	resolution. 	That policy
provided 	that 	random searches 	would 	cover all 	individuals 	on
District grounds, 	including teachers.
Correll 	provided training 	to District personnel 	in March of
1994. 	Because of delays 	in equipment purchases, 	the District did
not 	actually 	implement 	the metal 	detector program until 	the 	fall
of 	1994. 	At 	that 	time, 	the District posted notices regarding the
searches 	and distributed similar notices 	to 	staff.
Andres Torres 	(Torres), 	the principal at Model Alternative
School 	(MAS) 	decided that all MAS metal 	detector searches
would be 	conducted 	inside 	classrooms. 	Torres 	discussed and
demonstrated metal 	detector 	searches 	of 	teachers 	at 	faculty
meetings on October 11 and November 17, 	1994. 	These meetings
were attended by Lucinda Soule, 	the Association site
representative 	for MAS. 	Torres began performing searches,
both of 	students and of 	staff, 	in the 	fall 	of 	1994.
On January 27, 	1995, 	Sal Zendejas 	(Zendejas), 	an Association
site 	representative at 	Franklin High School 	and member of 	the
Association executive board, 	met with Franklin's vice principal,
Greg Zavala 	(Zavala). 	Zendejas 	complained that 	teachers 	should
not be 	subjected to metal 	detector searches. 	Zavala 	responded
with a memorandum indicating 	that 	teachers 	would not 	be 	exempted
4
4

from these searches. 	Zendejas also spoke to Correll, 	who told
him that 	the 	District 	would 	continue 	to perform random metal
detector searches 	on teachers.
On January 31, 	1995, 	Torres and two counselors performed a
random metal 	detector search of 	the 	students 	in Betsy Stafford's
(Stafford) 	classroom at MAS. 	After completing the search of
students, 	one of 	the 	counselors performed a metal 	detector search
of 	Stafford. 	That 	day, 	Stafford called Association Executive
Director Joe Nunez 	(Nunez) 	to complain about 	the metal 	detector
search. 	Nunez 	contacted Association 	President Marcia 	Knudsen
(Knudsen) 	and the 	two began to 	investigate 	the matter.
After two unsuccessful attempts, 	Nunez 	reached the
District's Director of Secondary Education, 	Carl 	Toliver
(Toliver) 	on February 3, 	1995. 	Toliver informed Nunez of
the District's 	policy 	concerning metal 	detector 	searches 	and
promised 	that 	Correll 	would provide 	a 	copy of 	that 	policy 	to
the Association. 	When Nunez had not 	received 	the 	information
by February 8, 	1995, 	he wrote 	to Toliver reminding him of 	the
request.3
Knudsen spoke with Correll 	on February 9 and 13, 	1995.
On both dates, 	Knudsen requested that 	Correll provide 	the
Association with 	the 	District's 	written policy 	regarding metal
3In early February, 	1995, 	Toliver directed Correll 	to cease
and desist 	the 	searches until 	the 	controversy was 	resolved. 	No
teachers 	have been 	subjected to 	searches 	since 	Toliver's 	cease
and desist went 	into effect.
55

detector searches 	of 	staff. 	Correll mailed the Association a
copy of 	the District's policy on February 14, 	1995.
DISCUSSION
EERA section 3541.5(a)(I)4 precludes 	the Board from issuing
a 	complaint 	on any 	charge based 	on an alleged unfair practice
occurring more 	than six months prior to the 	filing of 	the 	charge.
This 	six-month time 	limit 	is mandatory and jurisdictional.
(Los Angeles Unified School District 	(1996) 	PERB Decision
No. 	1180, 	proposed dec. 	at p. 	8.) 	The burden of proving
timeliness 	lies with the 	charging party. 	(Tehachapi Unified
School District 	(1993) 	PERB Decision No. 	1024 at p. 	3.)
The 	six-month 	time 	limit begins 	to 	run when 	the 	charging
party knew or 	should have 	known of 	the 	conduct 	giving 	rise 	to
the unfair practice. 	(Fairfield-Suisun Unified School 	District
(1985) 	PERB Decision No. 	547, 	warning letter at p. 	2.) 	In
unilateral 	change cases, 	therefore, 	the 	charging party must
demonstrate 	that 	it 	neither knew nor 	should have known of 	the
change more 	than six months before 	it 	filed the 	charge. 	(Los
-
Angeles Unified School District 	(1996) 	PERB Decision No. 	1180,
proposed decision at pp. 	9-11.) 	In this 	case, 	the Association
filed its 	charge on August 	11, 	1995. 	Thus, 	in order for the
4EERA Section 3543.1(a)(1) 	provides, 	in relevant part:
(a) 	. 	. 	. 	the board shall not do either
of 	the 	following:
(1) 	Issue 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.
66

charge 	to be 	timely, 	the Association must 	have 	learned of 	the
alleged unilateral 	change on or after February 11, 	1995.
The 	record 	reflects 	that 	an aggrieved 	teacher 	complained
to 	the Association about 	a metal 	detector 	search on
January 31, 	1995. 	On February 3 and 9, 	1995, 	the Association
contacted 	the 	District's 	director 	of 	secondary 	education and
chief 	of police 	to discuss 	the policy underlying 	this 	search.
After these 	conversations, 	the Association either knew or should
have known 	that 	the 	January 	31 	search 	reflected 	the District's
policy. 	Nonetheless, 	the Association waited until August 	11,
1995 	to file 	its 	charge. 	Based on the 	foregoing, 	the charge 	is
untimely and must 	be 	dismissed.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	SA-CE-1693 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Member Johnson joined 	in 	this 	Decision.
Chairman Caffrey's 	dissent begins 	on page 	8.
77

CAFFREY, 	Chairman, 	dissenting: 	I dissent. 	The Stockton
Teachers Association, 	CTA/NEA 	(Association) 	timely filed its
charge alleging 	that 	the 	Stockton Unified School 	District
(District) 	unilaterally 	implemented a policy of 	searching
teachers 	for weapons 	and 	refused 	the Association's 	demand 	to
bargain over 	the decision to 	implement 	the policy. 	This 	conduct
was alleged to violate section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational Employment Relations Act 	(EERA).
EERA section 3541.5(a)(1) 	states 	that 	PERB shall 	not
"[i]ssue 	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." 	This provision constitutes 	a bar to
the Public Employment Relation Board's 	(PERB) 	jurisdiction which
cannot be waived by the parties 	or PERB 	itself. 	(California
State University. 	San Diego 	(1989) 	PERB Decision No. 	718-H.) 	The
six-month period begins 	to 	run when 	the 	charging party knew or
should have known of 	the 	conduct 	giving 	rise 	to 	the 	alleged
unfair practice. 	(Fairfield-Suisun Unified School 	District
(1985) 	PERB Decision No. 	547.) 	In unilateral change cases, 	the
limitations period begins 	to 	run when 	the 	charging party has
actual 	or constructive notice 	of 	the 	respondent's 	clear intent 	to
implement a unilateral 	change 	in policy, 	provided that nothing
subsequently evidences a wavering of 	that 	intent. 	(The Regents
of 	the University of California 	(1990) 	PERB Decision No. 	826-H.)
-
The Association 	filed 	its 	unfair practice 	charge 	on
August 	11, 	1995. 	In order for the charge 	to be timely,
8

therefore, 	the Association must have 	learned of 	the 	conduct
giving rise to the charge on or after February 11, 	1995.
Conversely, 	if 	the Association had actual 	or constructive notice
prior to February 11, 	1995, 	of the District's clear intent to
implement 	the alleged unilateral 	change 	in policy, 	and there was
no subsequent wavering of 	that 	intent, 	the Association's 	charge
is untimely.
As noted by the majority, 	on November 23, 	1993, 	the District
approved 	the use 	of 	handheld metal 	detectors by secondary school
administrators. 	Approval was granted to 	further the District's
policy prohibiting 	the possession of weapons 	on 	school 	property
by students. 	There was no reference 	to searches 	of 	teachers 	in
the 	consideration of 	this 	item by the District's Governing Board
prior to 	its approval. 	One Governing Board member expressed
concern about 	conducting random searches. 	Thereafter, 	William
Correll 	(Correll), 	chief of the District's police force,
developed guidelines 	for 	implementing 	the 	Governing 	Board's
resolution. 	These guidelines 	apparently were not 	shared or
discussed with the Association by Correll. 	While 	the guidelines
reference 	searches 	of 	"students/staff," 	they appear primarily to
be aimed at 	searches 	of 	students, 	and make no reference 	to
searches 	of 	students 	or staff 	in the 	classroom.
On January 31, 	1995, 	a random metal detector search was
conducted 	in the 	classroom of 	Betsy Stafford 	(Stafford) 	at 	the
District's Model Alternative School. 	Stafford and all 	of her
students were subjected to the 	search in the 	classroom. 	Neither
S9

the policy adopted by the Governing Board on November 23, 	1993,
nor 	the 	guidelines 	subsequently developed by Correll, 	provides
for the metal 	detector search of 	a 	teacher 	in 	the 	classroom.
Nonetheless, 	when the Association made 	contact with the
District on February 3, 	1995, 	it was told that the search of
Stafford was 	in accordance with District policy, 	apparently 	in
reference to the November 23, 	1993, 	Governing Board resolution,
and Correll's 	guidelines. 	The District 	informed 	the Association
that 	Correll 	would 	forward documentation of 	the policy 	to 	the
Association. 	Correll provided the 	documentation 	in a
February 14, 	1995, 	mailing after several 	requests 	from the
Association.
On February 13, 	1995, 	having not yet 	received any
documentation from the District, 	the Association demanded to
bargain over 	the District's 	decision to 	implement 	a weapons
search program involving 	the 	search of 	teachers 	in 	their
classrooms 	in the presence 	of 	their students. 	The District
responded by letter, 	dated February 22, 	1995, 	that the subject of
metal 	detector searches 	of 	employees was 	a matter of management
prerogative. 	On February 23, 	1997, 	however, 	the District
instructed all 	secondary 	schools 	to 	stop 	the practice 	of 	random
searches 	with metal 	detectors.
A series 	of 	renewed demands 	to bargain by 	the Association,
and refusals by the District, 	ensued over 	the 	following months.
On June 	6, 	1995, 	the District 	sent the Association a letter
under 	the subject 	"Teacher Weapon Searches." 	Attached was 	a
10

proposed policy 	on 	the use 	of metal 	detectors 	to be 	considered by
the District's Governing Board on June 	13. 	The proposed policy
at 	that 	point 	referred to 	searches 	of 	any person and appeared 	to
provide 	for searches 	in the classroom. 	By the July 25, 	1995
Governing Board meeting, 	however, 	the proposed policy had been
revised 	to provide 	that 	random metal 	detector 	searches 	in 	the
classroom would be 	limited to students. 	By the August 	8, 	1995
Governing Board meeting, 	the proposed policy had been 	revised
again 	to 	indicate 	that 	random metal 	detector searches 	would not
be 	conducted 	in the 	classroom at 	all. 	Throughout 	this process,
the Association 	continued 	to demand, 	and 	the District 	continued
to refuse, 	to bargain over the subject.
Based on this 	course of 	events, 	the majority concludes 	that
"the Association either knew or 	should have 	known 	that 	the
January 31 	search reflected the District's policy." 	In my view,
this 	conclusion 	is 	not 	supported by the 	facts 	of 	the 	case.
Prior to February 11, 	1995, 	the District did not have a
clear, 	consistent, 	unwavering policy concerning metal 	detector
searches 	of 	teachers. 	Despite 	the District's assertion to the
contrary, 	the search of Stafford on January 31, 	1995, 	was not
authorized by 	the 	resolution 	adopted by 	the 	Governing 	Board 	on
November 23, 	1993, 	which was directed at possession of weapons by
students. 	Further, 	the guidelines unilaterally adopted by the
District 	and not 	shared with the Association do not 	provide 	for
classroom searches 	of 	teachers. 	At 	the 	time of 	the January 31
classroom metal 	detector search of 	Stafford, 	the District 	had no
11

policy which authorized such a search. 	In fact, 	it 	does not
appear that 	the District 	at 	that 	time had a 	clear 	intent 	to
implement 	such a policy, 	and the District's 	intent became 	even
less 	clear 	thereafter when 	it 	stopped all 	random metal 	detector
searches 	on February 23. 	Finally, 	the consideration in June,
July and August 	1995 	by 	the Governing Board of various 	proposed
- -
policies 	covering metal 	detector searches 	of 	employees makes 	it
absolutely evident 	that 	there was 	no 	clear, 	consistent policy in
effect prior to February 11, 	1995.
It 	is 	clear from the 	record that 	the District 	at 	no 	time has
had a policy of 	allowing 	searches 	of 	teachers 	in 	their
classrooms, 	as was done in the January 31, 	1995, 	search of
Stafford; 	and arguably did not 	have a 	clear, 	consistent policy on
the 	subject 	of metal 	detector searches until 	the adoption of 	the
August 8, 	1995, 	proposal. 	Accordingly, 	I find no support for the
majority's conclusion that the Association's August 	11, 	1995,
charge 	is untimely.
There may be 	no more 	fundamental 	responsibility 	for 	those
directing 	our public 	education systems 	than 	to provide a 	safe,
secure 	environment 	in which children can learn, 	and teachers 	and
other employees 	can teach and work. 	Similarly, 	because 	the need
for a safe and secure work environment 	is 	so basic, 	"safety
conditions 	of 	employment" 	is 	an enumerated subject within the
scope 	of 	representation under EERA section 3543.2. 	On an 	issue
as 	critical as 	school 	safety, 	the 	responsibilities 	of management
12

and 	the 	rights 	of 	employees must 	be balanced and made 	to
complement 	one another so 	that 	the 	common goal 	is 	achieved.
This 	case presents 	PERB with 	the 	opportunity 	to balance 	and
harmonize these 	responsibilities and rights, 	and provide guidance
to the parties 	in this 	increasingly important 	area.
Unfortunately, 	however, 	my colleagues' 	decision to find the
Association's 	charge 	untimely 	eliminates 	that 	opportunity.
13