Moreno Valley Unified School District (PERB 0206E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
MORENO 	VALLEY EDUCATORS
ASSOCIATION,
Charging 	Party,
v.
MORENO VALLEY UNIFIED SCHOOL
DISTRICT,
Respondent.
)
)
)
Case 	No. 	LA-CE-398
PERB 	DECISION 	NO. 206
April 30, 	1982
)
)
)
)
Appearances; 	Kenneth D. 	Hoffman 	(Gibson, 	Dunn & Crutcher)
Attorney 	for 	Moreno Valley Unified 	School 	District.
Before Gluck, Chairperson; Tovar and Jaeger, Members,
DECISION
This case comes before 	the 	Public Employment Relations
Board 	(PERB or Board) 	on exceptions filed by respondent, Moreno
Valley Unified School District 	(District) 	to 	the 	hearing
officer's 	proposed 	decision.
The 	hearing 	officer 	determined 	that 	the District 	violated
subsections 3543.5(a), 	(b), 	(c) 	and 	(e) 	of 	the Educational
Employment Relations act 	(EERA or 	Act)1 by making certain
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	statutory 	references 	are 	to 	the Government Code
unless 	otherwise 	specified.
Section 	3543.5 	states:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
)
)
_______________ )

unilateral changes 	in the 	terms 	and 	conditions 	of 	employment
prior 	to exhaustion of 	the Act's 	statutory 	impasse
procedures.2
(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.
(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.
(e) 	Refuse 	to participate 	in good faith 	in
the 	impasse procedure 	set 	forth 	in Article 9
(commencing with Section 	3548).
The 	parties 	to 	the 	instant 	case 	stipulated 	to 	the 	facts
prior 	to 	hearing. 	After 	considering 	the 	entire 	record 	in 	this
matter, 	including 	the 	attached 	proposed 	decision 	and 	the
exceptions, 	the Board 	concludes 	that 	the 	hearing 	officer's
recitation 	of 	the 	stipulated 	facts 	is 	free 	from prejudicial
-error 	and, 	on 	that basis, 	adopts 	that 	recitation as 	the
findings of 	the Board 	itself.
The 	Board 	affirms 	the 	hearing 	officer's conclusions 	of 	law
and 	remedy 	insofar 	as 	they 	are 	consistent 	with 	the
modifications 	discussed 	below.
2EERA's 	impasse 	procedures 	are 	set 	forth 	at
section 	3548-3548.3.
N	2

DISCUSSION
The District 	argues 	on 	exception 	that 	the 	implementation 	of
its 	last 	best offer 	following 	the parties' mutual 	declaration
of 	impasse on September 	15, 	1978, 	but prior 	to exhaustion of
the EERA's 	statutory 	impasse procedures, 	was not an unfair
practice 	proscribed 	by 	the EERA. 	The District's 	argument,
however, 	ignores a principal purpose of 	the Act.
The 	very essence 	of 	the 	collective 	bargaining 	system
codified 	in 	the EERA 	is 	that 	the 	terms 	and 	conditions of
employment, 	as 	defined 	by 	the 	Act,3 should be mutually
determined 	by the parties, 	pursuant 	to a process of 	negotiation
which 	is 	designed 	to produce 	a voluntary agreement. 	To this
end 	the Act provides 	initially 	that 	the 	employer 	and 	the
representative 	of 	the 	employees 	must meet 	and 	negotiate 	in good
faith 	whenever 	terms 	and 	conditions 	of 	employment 	are 	to 	be
determined, 	in an effort 	to reach mutual 	agreement. 	The Act
further provides 	that, 	where 	that initial 	step fails 	to produce
the 	sought-after 	agreement 	and 	the 	parties 	are 	at 	impasse,
pursuit 	of 	that goal may 	continue 	according 	to 	statutorily
prescribed 	procedures 	involving 	mediation 	and 	factfinding.4
3The 	scope 	of 	representation 	is 	defined 	at 	section 	3543.2.
4The 	specific guidelines 	of 	these 	procedures 	are 	set
forth 	at 	sections 	3548-3548.3.
w	
3

Decisions 	of 	this Board 	have 	firmly established that 	an
employer 	commits 	an 	unfair 	practice when 	it unilaterally
establishes 	any 	term 	or 	condition of 	employment within 	the
scope 	of 	representation prior 	to 	the 	conclusion 	of 	the
bilateral negotiations process. 	See Pajaro Valley Unified
School District 	(5/22/78), PERB Decision No. 	51; 	San Francisco
Community College District 	(10/12/79), 	PERB Decision No. 	105;
accord, NLRB v. Katz 	(1962), 	369 U.S. 	739 	[50 LRRM 2177]. 	In
the 	face of 	this 	decisional law, 	the District 	argues 	that while
a 	unilateral 	change 	in 	terms 	and conditions may be 	proscribed
during 	the 	time 	the 	parties 	are 	pursuing 	voluntary 	agreement
via bilateral negotiations, 	the same 	unilateral 	change should
be 	lawful when 	efforts 	toward 	voluntary agreement 	shift 	to 	the
impasse 	procedure. 	We 	are 	unpersuaded 	by 	this 	argument.5
The assumption 	of 	unilateral 	control over 	the 	employment
relationship prior 	to exhaustion of 	the 	impasse 	procedures
frustrates 	the EERA's purpose 	of 	achieving mutual 	agreement 	in
exactly 	the same ways 	that 	such 	conduct 	frustrates 	that
5 In defending 	its 	action, 	the District 	relies 	on private
sector 	law which 	allows 	the 	employer 	to 	unilaterally 	implement
its 	best offer made 	in negotiations 	after 	impasse 	is 	reached.
NLRB v. 	Crompton-Highland Mills 	(1949) 	337 U.S. 	217 	[24 LRRM
2088]. 	Unlike the National Labor Relations Act, 	however, 	the
EERA's 	impasse 	procedures 	are 	statutorily prescribed. 	Failure
to participate 	in good 	faith 	in 	the 	impasse procedures 	is 	a
violation of 	section 3543.5(e).
A4

purpose when 	it 	occurs 	at 	any earlier 	point. 	See San Mateo
County Community College District, 	(6/8/79) 	PERB Decision No.
94. 	The 	impasse procedures 	of EERA contemplate 	a continuation
of 	the 	bilateral 	negotiations process. 	Mediation 	remains
fundamentally a 	bargaining process, 	albeit with 	the 	assistance
of a 	neutral 	third 	party. 	For 	the 	reasons 	set forth 	in San
-
Mateo County Community College District, 	supra, 	we 	find 	that
following 	a declaration of 	impasse, 	a 	unilateral 	change
regarding 	a subject within the 	scope 	of 	negotiations 	prior 	to
exhaustion of 	the 	impasse procedure 	is, 	absent a valid
affirmative 	defense, 	per 	se 	an 	unfair practice.6
The Elimination 	of Flexible Scheduling
The District 	argues 	on 	exception 	that 	its 	elimination 	of
flexible scheduling 	was 	a matter 	outside 	the 	scope 	of
representation. 	In support 	of 	its 	position 	the District 	argues
that: 	(1) 	the decision as 	to whether or 	not 	to use a flexible
scheduling 	system 	is 	exclusively a matter 	of 	managerial
prerogative, 	and; 	(2) 	the 	implementation of 	their 	decision had
no 	effect 	on 	any 	terms 	or 	conditions 	of 	employment 	within the
scope 	of 	representation.
6In 	reaching 	this 	conclusion, 	we 	do 	not 	rely on 	the
rationale 	proffered 	by 	the 	hearing 	officer 	in 	the 	attached
proposed 	decision. 	He 	found 	that 	because 	an 	employee
organization 	is 	prohibited from using "self-help" 	before 	the
exhaustion of 	impasse, 	the 	employer 	should also 	be 	prohibited
from making 	unilateral 	changes.
5

Accepting, 	for 	purposes of 	this 	discussion only, 	that the
District 	is correct 	in its 	first point, 	we 	find 	that 	the
District's 	elimination 	of 	that 	system 	had 	an 	impact 	on matters
within 	the 	scope 	of 	representation 	which must 	lawfully have
been 	negotiated 	in 	good 	faith.
In Anaheim Union High School District 	(10/28/81), 	PERB
Decision No. 	177, 	we held that the scope of 	representation
encompasses 	not 	alone 	those 	subjects 	specifically enumerated 	in
section 3543.2;7 rather, 	subjects 	are within the 	scope of
representation 	and 	therefore 	negotiable 	if 	(1) 	the subject 	is
logically and 	reasonably related 	to 	hours, 	wages 	or 	an
enumerated 	term and 	condition of 	employment, 	(2) 	the subject 	is
of 	such 	concern 	to 	both management 	and 	employees 	that 	conflict
is 	likely 	to occur 	and 	the mediatory 	influence 	of 	collective
7Section 	3543.2 provides 	in relevant 	part:
The scope 	of 	representation shall 	be 	limited
to matters 	relating to wages, 	hours of
employment, 	and 	other 	terms 	and 	conditions
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, 	and the layoff
of 	probationary 	certificated 	school 	district
employees, 	pursuant 	to Section 44959.5 of
the Education Code. 	. 	. 	.
6

negotiations is the appropriate means of 	resolving the
conflict, 	and 	(3) 	the employer's obligation to negotiate would
not 	significantly abridge 	its 	freedom 	to exercise those
managerial prerogatives 	(including matters of fundamental
policy) 	essential to the achievement of 	the District's mission.
The District's unilateral elimination of 	flexible
scheduling in the Fall of 	1978 had the effect of increasing
class size, 	a specifically enumerated subject of negotiation.
The stipulated facts show that prior 	to the 1978-79 school
year, 	teachers 	of grades 1-3 taught for 	a total 	instructional
classroom time of approximately 285 minutes. 	Of this time, 	the
first 	and last hours were with half the number of 	students as
were 	instructed during the interim class time. 	Thus, 	using the
hypothetical advanced by the District in its exceptions brief,
a teacher might instruct a class of 25 students for 	the first
and last 60 minute periods, while instructing 50 students
during the intervening 165 minutes. 	Commencing with the
1978-79 	school year, 	the District shortened the daily class
time to 250 minutes, 	but eliminated the flexible scheduling
program, 	requiring 	that all of a teacher's students 	(in the
instant hypothetical, 	50) 	attend for 	the entire 250 minutes.
Thus, 	teachers were required to teach a class of 50 students
not merely for 	165 minutes, 	but for 250 minutes. 	The effect of
this change was that for an 85 minute period which teachers had
previously spent with a class of 25 students, teachers now were
7

required 	to spend with 	a 	class 	of 	50 	students. 	That 	this
change 	constitutes 	a 	significant 	increase 	in 	class 	size within
the meaning of 	section 3543.2 	is, 	in our 	view, 	indisputable.
The District 	argues 	that 	the 	total 	number 	of 	students 	which
each 	teacher 	is 	charged with 	educating 	remains 	the 	same 	after
the 	elimination 	of 	flexible 	scheduling 	and 	therefore 	nothing
more of 	any substance 	has 	been 	demanded of 	them. 	This 	is 	not
accurate. 	Class 	size means 	the total number 	of 	students 	in 	a
classroom. 	It 	is 	obvious 	that 	the 	size of 	a given 	class
affects 	the 	teacher's 	ability 	to communicate with students, 	to
provide 	specialized 	attention 	that 	may 	be 	required 	and 	maintain
class 	discipline. 	These 	are 	the 	underlying 	considerations 	in
the 	legislative 	decision to make 	class 	size 	negotiable. 	Had
the District 	altered 	a 	class 	by 	flatly doubling 	the number 	of
students 	for 	the 	entire 	day, 	the District 	would no 	doubt
acknowledge 	that 	this would 	constitute a 	change 	in 	class 	size
that must be 	negotiated. 	That 	the 	actual 	change 	doubled 	class
size 	for 	an 	85 	minute 	portion 	of 	the 	teaching 	day 	rather 	than
the 	entire 	day does 	not 	lessen 	the 	negotiability of 	the
District's 	unilateral 	action. 	Whether 	or 	not 	the 	reduction 	in
total 	class 	time 	from 	285 minutes 	to 250 	is 	fair 	compensation
for 	the 	85 	minute 	increase 	in class 	size 	is 	not for 	us, 	nor 	for
the District, 	to declare. 	Rather, 	it is 	a question to be
resolved 	via 	the 	process 	of 	good 	faith negotiations.
Co	
8

Preparation 	Time
The District 	acknowledges 	that 	changes 	in preparation time
are negotiable 	to the 	extent 	that 	they affect 	the 	number 	of
hours worked. 	The District 	argues, 	however, 	that the
elimination 	of 	five 	minutes 	from 	the 	50 	minute 	preparation
period 	previously available 	to 	teachers 	of 	grades 	4-6 	was 	not
shown 	to 	have 	any discernible 	impact on 	the 	amount 	of 	time
teachers 	are 	required 	to spend 	in doing 	their 	jobs 	and,
therefore, 	that 	this 	change did 	not 	affect hours, 	or 	any other
subject 	within 	the 	scope 	of 	representation. 	We 	find 	the 	impact
on teachers' 	hours 	to be apparent.
The 	elimination of 	five 	minutes 	from 	the 	preparation period
means 	that five 	minutes 	of 	work 	previously 	allocated 	for
accomplishment 	during 	the 	preparation period must 	either 	be
done outside of 	regular work hours 	or 	not 	done at 	all. 	There
is 	nothing 	in 	the 	record 	which 	indicates 	that 	the District 	has
agreed 	to 	accept 	a 	reduced 	amount 	of 	preparation 	from 	the
teachers. 	The conclusion is 	required, 	therefore, 	that
teachers, 	as 	a result of 	the reduction in the preparation
period, 	must 	accomplish 	the 	remainder 	of 	their 	preparation
outside 	of 	regular work hours. 	If 	we were 	to find 	that 	a five
minute reduction is 	so negligible 	that 	its 	effect 	on hours 	is
insignificant, 	the District would 	be 	free 	to take the same
action 	again when 	the 	employment 	contract 	is 	next 	negotiated,
and again 	after 	that. 	Clearly, 	the cumulative effects 	of 	such
9

actions 	would 	grossly alter 	hours.
The Act 	provides 	that 	a change 	in terms 	and conditions 	of
employment within 	the scope 	of 	representation 	are 	to 	be
negotiated. 	That 	the 	proposed 	change 	in 	this 	instance 	is
without 	doubt 	only 	a small one may 	be 	a sensible 	bargaining
position to be 	taken 	in negotiations over 	the 	change. 	It 	is
not, 	however, 	a 	basis for 	exempting 	the District from 	the
obligation 	to bargain. 	The 	hearing officer's 	conclusion that
the District's 	unilateral 	reduction 	in 	preparation 	time 	for
teachers 	of 	grades 	4-6 was 	an 	unfair 	practice 	is 	affirmed.
The 	hearing 	officer 	concluded 	also 	that 	the District's
unilateral 	increase 	in 	preparation time 	for 	grades 	1-3 	was 	an
unfair 	practice. 	We 	note 	that 	the 	charging 	party made 	no such
allegation in 	its 	statement 	of 	the 	charge, 	nor 	did 	it 	raise
such a claim at 	any 	time. 	In light 	of 	these facts, 	the 	hearing
officer 	improperly 	considered 	it.
Changes 	in Lunch Duty 	and Mileage Reimbursement
The 	hearing officer's 	conclusion that 	any changes 	which
occurred 	in 	teacher 	lunch 	duty or 	in the District's 	mileage
reimbursement 	procedures 	have 	not 	been 	shown to be 	unfair
practices 	is 	affirmed. 	In rejecting 	the Association's 	claim
regarding lunch 	duty, 	however, 	we 	do not 	rely on the 	hearing
officer's 	finding 	that 	the 	alleged 	change was de 	minimus. 	The
evidence 	indicates 	that 	the 	District 	did 	not 	change 	teacher
10

lunch 	duty obligations. 	Only 	a 	single administrative 	error,
immediately retracted 	by 	the District 	upon discovery, 	but 	which
resulted 	in 	some 	teachers 	working 	noon-time 	duty on one 	day,
was 	shown. 	Rather 	than 	characterizing 	this 	event 	as
de 	minimus, 	we 	believe 	this 	conduct simply does 	not 	demonstrate
that 	the District 	failed or 	refused 	to negotiate 	changes 	in
good 	faith.
As 	to 	the 	charge 	alleging a 	change 	in 	the 	District's
mileage 	reimbursement procedure, 	the 	evidence 	does 	not 	support
a 	finding 	that 	the 	change 	affected 	a subject within 	the 	scope
of 	representation. 	We 	believe 	this 	conduct 	simply does 	not
constitute 	a 	prohibited 	unilateral 	change.
The District's Unilateral Actions Violated
subsection 3543.5(e), 	(c) , 	(a) 	and 	(b)
Based on 	the 	foregoing 	discussion 	and 	the 	entire 	record 	in
this case, 	it 	is 	found 	that 	the District 	violated
subsection 	3543.5(e) 	by making 	unilateral 	changes 	in 	terms 	and
conditions 	of 	employment 	within 	the 	scope 	of 	representation 	at
a 	time when 	its lawful 	obligation was 	to negotiate 	those
matters 	via 	the 	impasse 	procedure.8 Specifically, 	the
unilateral 	actions found 	violative are: 	(1) 	elimination of
stipends 	for 	counselors, 	for Reading Resource, 	Educationally
8Section 	3543.5 	is 	set 	forth 	in 	relevant part 	herein 	at
footnote 	1.
11

Handicapped 	(EH) 	and Educable Mentally Retarded 	(EMR) 	teachers,
and 	for 	high 	school 	special 	education and reading 	teachers; 	(2)
elimination 	of 	extra duty stipends 	at 	the junior 	high 	school
for 	sports 	supervision, 	special education, 	journalism, 	year
book, drama, 	reading, 	vocal music and band; 	(3) 	increase in
class 	size 	for 	grades 	1-3; 	(4) 	reduction in preparation time
for 	grades 	4-6, 	and 	(5) 	failure to bargain over 	the negotiable
effects 	of 	the District's 	decision to 	eliminate 	the
Miller-Unruh 	teaching 	positions 	and 	the 	positions 	of 	assistant
football coach 	(2 positions).
It 	is 	also 	found 	that 	the 	above-identified 	unilateral
actions 	violated subsection 	3543.5(c). 	That subsection makes
unlawful 	the 	refusal 	or 	failure of 	a public school employer 	to
"meet 	and 	negotiate 	in 	good 	faith with 	an exclusive
representative." 	While mediation, 	as 	provided by 	the Act's
impasse 	procedure, 	involves 	the 	introduction of 	a neutral 	third
party to facilitate 	negotiations 	of 	the 	primary parties, 	it
remains fundamentally a 	continuation of 	the negotiations
process. 	The 	action of 	an 	employer 	which 	frustrates 	the
mediation process, 	therefore, 	violates subsection 3543.5 (c).
As 	we 	stated 	in San Francisco Community College District,
supra, 	an 	employer's 	failure or 	refusal 	to meet 	and negotiate
in good 	faith with 	an exclusive 	representative, 	when 	it 	has 	the
obligation 	to do so, 	violates 	the 	rights 	of 	both the exclusive
12

representative 	and 	the 	employees 	it 	represents. 	On this 	basis
we 	find 	that 	the 	District 	concurrently 	violated
subsections 3543.5(b) 	and 	(a).
REMEDY
The 	hearing 	officer's 	proposed 	remedy 	is 	inappropriate 	to
the 	extent 	that 	it would order 	the District 	to 	return to the
status 	quo 	ante 	by 	restoring 	positions 	and 	programs 	which the
District 	has 	eliminated. 	The 	decision to make such 	changes, 	as
the 	hearing 	officer 	acknowledges 	in 	his 	discussion, 	is 	a matter
reserved 	to the 	prerogative 	of 	management. 	It 	is 	only the
effects 	of 	such 	decisions, 	to the 	extent 	that 	they are within
the scope of 	representation, 	which must be 	negotiated. 	The
Board's 	order 	of 	affirmative action, 	therefore, 	with regard to
the 	elimination of 	positions 	and 	programs, 	will 	be 	limited 	to
requiring 	the District 	to bargain over 	the 	effects 	of 	these
decisions.
As 	to 	the 	unilateral 	elimination of 	stipends 	from positions
which continue 	into the 1978-79 	school year, 	a make whole
remedy 	is 	appropriate. 	Thus, 	the District will 	be ordered to
repay 	the withheld 	stipends 	to the 	appropriate 	employees 	for 	a
period 	from 	the 	commencement 	of 	the 	1978-79 	employment 	year
until 	the 	parties 	reach 	agreement on wages.
As 	to 	the 	reduction of 	preparation 	time 	and 	the 	increase 	in
class 	size, 	the return to the status 	quo 	ante 	is 	appropriate,
unless 	in 	the 	interim a different 	arrangement 	has 	been 	agreed
13

upon by 	the 	parties. 	If 	a return to the status 	quo in this
regard 	is 	required, 	such 	restoration shall 	be 	deferred 	until
the 	next 	semester 	following 	service 	of 	this 	decision.
The 	Board 	further 	orders 	that 	the District 	cease 	and 	desist
from 	making 	unilateral 	changes 	regarding matters 	within 	the
scope 	of 	representation and 	that 	the 	parties 	return to the
bargaining 	table, 	should the Association so request, 	to
negotiate 	with 	respect 	to 	those matters 	identified 	in 	the Order
below.
The District 	shall 	also 	be 	required 	to post 	the Notice 	to
Employees 	attached 	as 	an Appendix 	to 	this Decision 	and Order.
ORDER
Upon 	the 	foregoing findings 	of 	fact 	and 	conclusions 	of 	law,
and the 	entire 	record, 	it 	is 	found 	that 	the Moreno Valley
Unified School District 	has 	violated subsections 	3543.5(a),
(b), 	(c) 	and 	(e) 	of 	the Educational Employment Relations Act.
It 	is 	hereby ORDERED 	that 	the Moreno Valley Unified School
District 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Violating subsection 3543.5(c) 	and 	(e) 	by refusing or
failing 	to participate 	in 	good 	faith 	in 	the 	impasse 	procedure
set 	forth 	in 	the Educational Employment Relations Act 	by 	taking
unilateral 	action 	affecting 	subjects 	within 	the 	scope 	of
representation prior 	to exhaustion of 	the 	impasse 	procedure,
14

.* * . .' . .'
and 	specifically 	with respect 	to 	the 	following 	actions:
a. 	Elimination of 	stipends 	for 	counselors, 	for
Reading Resource, 	EH 	and EMR teachers, 	and 	for
high 	school 	special 	education 	and 	reading
teachers;
b. 	Elimination of 	extra duty stipends 	at 	the 	junior
high school 	for 	sports 	supervision, 	special
education, journalism, yearbook, drama, reading,
vocal music 	and 	band;
c. 	Alteration 	in 	teacher 	preparation time 	for 	grades
4-6 	and class 	size 	for 	grades 	1-3;
d. 	Failure 	to 	negotiate 	the 	negotiable 	effects 	of
its 	decisions 	to 	eliminate Miller-Unruh 	teacher
positions 	and 	the 	positions 	of 	assistant
volleyball 	coach, 	freshman 	baseball 	coach 	and
assistant football coach 	(2 positions).
2. 	Violating 	subsection 	3543.5 (a) 	by 	interfering with
employees 	because of 	their 	exercise 	of 	their 	right 	to select 	an
exclusive 	representative 	to meet 	and 	negotiate 	with 	the
employer 	on 	their 	behalf 	by 	unilaterally changing matters
within 	the scope 	of 	representation prior 	to exhaustion of 	the
impasse 	procedure 	set forth 	in 	the EERA.
3. 	Violating 	subsection 	3543.5(b) 	by denying 	the
Association 	its 	right 	to 	represent 	unit members 	by 	unilaterally
changing matters 	within 	the 	scope 	of 	representation 	prior 	to
15

exhaustion 	of 	the 	impasse 	procedure 	set 	forth 	in 	the EERA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE PURPOSES 	OF THE EERA:
1. 	Make 	whole 	all 	employees 	who 	have 	occupied 	the
positions 	identified 	herein 	above 	in 	paragraph A-l-a 	and 	all
employees 	who 	have 	rendered 	the 	services 	identified 	herein
above 	in paragraph A-l-b, 	since September 15, 	1978, 	and from
whom 	stipends 	or 	extra duty stipends 	have 	been 	withheld 	by 	the
District 	as 	a 	result 	of 	the District's 	unilateral 	actions
identified 	herein 	above 	at 	paragraphs A-l-a 	and 	b. 	The
District 	is 	to pay 	to these 	employees 	the 	stipends 	they would
have 	received 	had 	the 	unilateral 	changes 	identified 	herein
above 	at 	paragraphs A-l-a 	and 	b 	not 	been made, 	plus 	interest 	at
the rate of 	7 percent per 	annum, 	from September 15, 	1978, 	until
the 	parties 	reach 	agreement 	on wages.
2. 	Unless 	a different 	arrangement 	has 	been 	agreed 	upon by
the 	parties, 	restore 	teacher 	preparation schedules for
grades 	4-6, 	and class 	size 	for 	grades 	1-3, 	to levels 	in
existence 	prior 	to 	implementation 	of 	the 	unilateral 	changes
referred 	to herein above 	at paragraph A-l, 	and return to the
bargaining 	table 	to negotiate with 	respect 	to 	these matters.
If 	no 	different 	arrangement 	has 	been 	agreed 	upon by 	the
parties, 	and 	restoration of 	the status quo 	in this 	regard 	is
requested, 	implementation of 	this 	portion of 	the Order 	may 	be
16

delayed 	until 	the 	next 	semester 	break 	following 	service 	of 	this
decision.
3. 	Within 	five workdays 	following 	the 	date of 	service of
this 	decision, 	post 	at 	all work locations where 	notices 	to
employees 	customarily are placed, 	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 	30
consecutive workdays. 	Reasonable steps 	shall 	be 	taken to
insure 	that 	such 	notices 	are 	not 	altered, 	defaced or 	covered 	by
any other material 	or 	reduced 	in size.
4. 	Within 	five workdays 	following 	service of 	this
decision, 	notify 	the Los Angeles 	regional 	director 	of 	the
Public Employment Relations Board 	in writing of 	what 	steps 	the
employer 	has 	taken to comply with the 	terms 	of 	this 	decision.
Continue 	to 	report 	in writing 	to 	the Regional Director
periodically 	thereafter 	as 	directed. 	All 	reports 	to the
Regional 	Director 	shall 	be 	served 	concurrently on Charging
Party 	herein.
C. 	The 	charges 	that 	the Moreno Valley Unified School District
committed 	an 	unfair 	practice 	by 	imposing 	lunch duty 	upon
certain 	of 	its 	certified 	employees 	and 	by changing procedures
for 	mileage 	reimbursement 	are 	hereby DISMISSED.
17

This 	order 	shall become effective immediately upon service
of 	a true copy thereof on the Moreno Valley Unified School
District.
By: 	Irene Tovar, Member 	Ha'rry Gluck, Chairperson
John W. J a e g e r , 	Member
18

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. 	LA-CE-398 	in
which 	all parties 	had the right 	to participate, 	it 	has 	been
found 	that 	the Moreno Valley Unified School 	District 	violated
section 	3543.5(c) 	and 	(e) 	of 	the Educational Employment
Relations Act 	(EERA) 	by refusing to participate 	in good 	faith
in 	the 	impasse 	procedure set 	forth 	in 	the EERA by 	taking
unilateral 	action 	in September 	1978 with 	respect 	to the
elimination 	of 	certain 	positions 	and 	programs 	without
bargaining over 	impact; 	the 	elimination of 	certain stipends,
the 	alteration 	of 	class 	sizes 	in 	grades 	1-3 	and 	the 	alteration
in 	preparation 	time 	for 	grades 	4-6 	prior 	to 	the 	completion of
the 	impasse 	procedures 	established 	by 	the Educational
Employment Relations Act.
It has 	also 	been 	found 	that 	this 	same 	conduct 	violated
section 	3543.5 (b) 	of 	the EERA since 	it 	interfered with the
right 	of 	the Association to 	represent 	its 	members.
It 	has 	also 	been 	found 	that 	this 	same 	conduct 	interfered
with negotiating unit members' 	right 	to be 	represented 	by 	their
exclusive representative, 	thus constituting a 	violation of
section 3543.5(a) 	of 	the EERA.
As 	a result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to post
this Notice, 	and we will 	abide 	by the 	following:
A. 	CEASE AND DESIST FROM:
1. 	Refusing 	to participate 	in good 	faith 	in 	the 	impasse
procedure 	set 	forth 	in 	the EERA by 	taking 	unilateral 	action on
matters 	within the scope of 	representation, 	as 	defined 	by
section 	3543.2 	and 	specifically 	with 	respect 	to 	the 	following
subjects:
a. 	Elimination of 	stipends 	for 	counselors, 	for
Reading Resource, 	EH 	and EMR 	teachers, 	and 	for
high 	school 	special 	education 	and 	reading
teachers;
1
1

b. 	Elimination 	of 	extra duty stipends 	at 	the 	junior
high school 	for 	sports 	supervision, 	special
education, journalism, yearbook, drama, reading,
vocal 	music and 	band;
c. 	Alteration 	in 	preparation 	time 	for 	teachers
teaching 	grades 	4-6 	and 	alteration 	in 	class 	size
for 	teachers 	in 	grades 	1-3;
d. 	Failure 	to negotiate 	the 	negotiable 	effects 	of
its 	decisions 	to 	eliminate Miller-Unruh 	teacher
positions 	and 	the 	positions 	of 	assistant
volleyball 	coach, 	freshman 	baseball 	coach 	and
assistant football coach 	(2 positions).
2. 	Denying 	the Association 	its 	right 	to represent 	unit
members 	by 	refusing 	to participate 	in 	good 	faith 	in 	the 	impasse
procedure set 	forth 	in the EERA.
3. 	Interfering with 	employees 	because of 	their 	exercise
of 	their 	right 	to select 	an exclusive 	representative 	to meet
and 	negotiate 	with 	the 	employer 	on their 	behalf 	by 	unilaterally
changing matters 	within 	the scope 	of 	representation 	prior 	to
exhaustion of 	the 	impasse 	procedure 	set 	forth 	in 	the EERA.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF THE EERA:
1. 	Make whole 	all 	employees 	who 	have occupied 	the
positions 	identified 	herein 	above 	in 	paragraph A-l-a 	and 	all
employees 	who 	have 	rendered 	the services 	identified 	herein
above in paragraph A-l-b, 	since September 	15, 	1978, 	and from
whom 	stipends 	or 	extra duty stipends 	have 	been withheld 	by 	the
District 	as 	a result 	of 	the District's 	unilateral 	actions
identified 	herein 	above 	at 	paragraph A-l-a 	and 	b. 	The District
is 	to pay 	to 	these 	employees 	the 	stipends 	they would 	have
received 	had 	the 	unilateral 	changes 	identified 	herein 	above 	at
paragraph A-l-a and 	b not 	been made, 	plus 	the 	lawful 	rate of
interest 	at 	the 	rate of 	7 percent per 	annum, 	from
September 	15, 	1978, 	until 	the parties 	reach 	agreement on wages.
2. 	Unless 	a different 	arrangement 	has 	been agreed 	upon 	by
the 	parties, 	restore 	teacher 	preparation time for 	grades 	4-6
and 	class 	size levels 	for 	grades 	1-3 	to levels 	in existence
prior 	to 	the 	implementation of 	the 	unilateral 	changes 	referred
to 	herein above 	at 	paragraph A-l, 	and return to the 	bargaining
table 	to negotiate with 	respect 	to these matters. 	If
2
2

restoration of 	the status 	quo is 	requested, 	such restoration
may 	be 	delayed 	until 	the 	next 	semester 	break 	following 	service
of 	this 	decision.
Dated:
MORENO VALLEY UNIFIED SCHOOL 	DISTRICT
By Superintendent
THIS 	IS 	AN 	OFFICIAL NOTICE. 	IT 	MUST 	REMAIN POSTED FOR THIRTY
( 3 0 ) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE OF 	POSTING AND MUST 	NOT
BE 	REDUCED 	IN 	S I Z E , 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
3