Rio Hondo Community College District (PERB 0279E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RIO 	HONDO 	FACULTY
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
RIO 	HONDO 	COMMUNITY
COLLEGE DISTRICT,
Respondent.
Case No. 	LA-CE-1157
PERB Decision No. 	279
December 	31, 	1982
Appearances; 	Charles R. 	Gustafson, 	Attorney 	(California
Teachers 	Association) 	for 	Rio Hondo Faculty Association,
CTA/NEA, 	Charging Party; 	Thomas A. 	Wagner, 	Attorney 	(Wagner,
Sisneros 	& Wagner) 	for 	Rio 	Hondo Community College District.
Before Jaeger, 	Morgenstern and Jensen, 	Members.
DECISION
JAEGER, 	Member: 	This 	case 	is 	before 	the Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed by 	the
Rio Hondo Community 	College 	District 	(District) 	to 	a proposed
decision 	finding 	that 	the 	District 	violated 	subsections
3543.5(b) 	and 	(c) 	of 	the 	Educational 	Employment Relations Act
(EERA or 	Act) 	by 	unilaterally changing 	matters within 	the 	scope
of 	representation 	without 	negotiating 	with 	the 	Rio 	Hondo
Faculty 	Association, 	CTA/NEA 	(Association).1 The 	District
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
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excepts 	to 	the 	Administrative 	Law 	Judge's 	(ALJ) 	determination
as 	to 	four 	of 	the 	five 	violations 	found.2
et 	seq. 	All 	references 	are 	to the 	Government 	Code 	unless
otherwise 	indicated.
Section 3543.5 provides in relevant part:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(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 	affirm 	the 	ALJ's 	determination 	that 	the 	District 	made
unlawful unilateral changes 	as 	to 	three 	of 	the 	four 	charges
before 	us. 	We 	reverse 	the ALJ's 	determination 	that 	the
District 	unlawfully 	assigned 	teaching 	duties 	to 	Cooperative
Work Experience 	(CWE) 	instuctor/coordinators 	(CWE 	instructors).
FACTS
1. 	Increase 	in Caseload 	of Cooperative Work Experience
Instructor/Coordinators
The 	Cooperative 	Work 	Experience 	program attempts 	to match
students 	with 	private 	sector 	employers 	in 	the community 	and
provides 	career 	counseling 	for 	students 	seeking 	jobs. 	CWE
instructors 	seek 	out 	and 	meet with 	employers 	and, 	in addition,
2since 	the 	District 	did 	not 	except 	to 	the 	finding 	that 	it
unlawfully 	altered 	the 	compensation 	formula 	paid 	to 	instructors
of physical 	sciences 	field 	studies 	courses, 	the validity of
that determination is not before 	the Board, 	and 	it 	is 	therefore
affirmed.
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provide 	counseling 	to students 	looking 	for 	employment. 	There
are 	two 	CWE instructors, Vince Glenn and 	Irene Portillo. 	In
addition, 	there 	is 	a coordinator 	of 	the program, 	Tom Huffman.
The 	job 	description 	of 	the 	CWE 	instructor/coordinator
position 	states 	that 	each 	instructor 	will:
Provide counseling, 	leadership, 	supervision
and 	job-site 	coordination 	for 	approximately
125 	Cooperative 	Work 	Experience 	students
each 	semester 	during 	the 	academic year.
Don L. 	Jenkins, 	the college's vice president of 	academic
affairs 	and 	an 	assistant 	superintendent, 	testified 	that 	it was
the 	existing 	policy of 	the 	District 	that 	125 	students were 	the
maximum number 	that 	a 	CWE 	instructor 	could 	be 	required 	to
counsel each 	semester. 	However, 	because of 	the normal 	rate of
attrition, 	a CWE 	instructor 	did 	not 	actively counsel
125 students. 	The District's 	intention, 	therefore, 	in raising
the 	number 	of 	students 	initially 	assigned 	to each 	CWE
instructor 	from 125 	to 	140, 	was 	to bring 	the number 	of 	students
actually counseled closer 	to 	125. 	He 	noted 	that 	at 	no 	time,
either 	before or 	after 	the 	increase 	in 	the 	number 	of 	registered
students, 	did 	the 	number 	of 	students 	actually counseled 	reach
125.
Mr. 	Jenkins 	consistently 	maintained 	that 	the 	125 	maximum
workload 	figure 	referred 	to 	the 	number 	of 	students 	actually
counseled, 	not 	the 	number 	of 	students 	registered 	in 	the 	CWE
program.
W	
3

Tom Huffman, 	who has 	been 	the 	director 	of 	the 	CWE program
since 	1979 	and 	the 	supervisor 	of Glenn 	and Portillo,
corroborated 	Jenkin's 	testimony. 	He 	stated 	that 	the 	increase
in 	the 	number 	of 	registered 	CWE students 	did 	not 	increase 	or
otherwise alter 	the workload 	of 	the 	CWE 	instructors. 	He
admitted 	that prior 	to 	the 	spring 	of 	1979 	CWE 	instructors
qualified 	for 	"overload pay" 	if 	the 	number 	of 	students
registered 	exceeded 	125 	and 	that 	after 	the 	spring 	of 	1980
overload 	pay 	could 	be 	acquired 	only 	if 	the 	number 	of 	students
registered went over 	140. 	He also 	noted, 	however, 	that a CWE
instructor 	would 	qualify 	for 	overload 	pay at 	the 	beginning 	of
the 	semester, 	prior 	to 	the 	time 	that 	any 	students 	were 	actually
counseled.
The 	testimony 	of 	Jenkins 	and 	Huffman 	concerning 	District
policy 	was 	directly 	contradicted 	by 	CWE 	instructor 	Vince
Glenn. 	Glenn had 	been dean of 	students 	for 	13 	years prior 	to
becoming 	a 	CWE 	instructor 	in 	the 	fall of 	1979. 	He 	testified
that 	the 	normal 	job 	responsibility of a 	CWE 	instructor 	was 	to
attempt 	to contact 	those 	students 	registered with 	the 	program,
and 	to give 	them counseling 	if 	they 	desired 	it. 	Prior 	to and
including 	the 	fall 	semester 	of 	1979, 	each 	CWE 	instructor 	was
assigned 	125 	students 	to contact. 	In 	the 	spring of 	1980, 	that
number 	was 	increased 	to 	140.3 	Glenn 	repeatedly 	testified
3Even 	though 	the 	number 	of 	registered 	students 	was 	fixed
at 	either 	125 	or 	140, 	that 	number 	was 	adjusted pro rata when
the CWE instructors 	taught classes. 	For 	example, 	in 	the spring
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that 	it 	was 	part of his 	normal 	responsibilities 	to contact 	all
students 	on 	the 	list 	and 	that 	he 	spent 	"many 	hours" on 	the
phone 	attempting 	to 	reach 	them. 	Each 	semester 	a certain
percentage 	of 	the 	students 	whom 	he 	contacted would 	show 	up 	for
face-to-face 	counseling 	sessions. 	He 	analogized 	this 	system 	to
the 	"drop" 	system existing 	in 	lecture courses, 	although he
noted 	that, 	unlike 	instructors 	in 	lecture-type courses, 	he was
required 	to contact 	all 	students 	who were originally 	registered
with 	the program. 	Thus, 	according 	to Glenn, 	the 	increase 	in
the 	number 	of 	students 	from 	125 	to 	140 	significantly 	increased
his workload. 	Moreover, 	Glenn 	noted 	that prior 	to 	the 	spring
of 	1980 	a CWE 	instructor 	qualified 	for 	overload 	pay 	for 	any
students 	assigned 	to him or 	her 	over 	125, 	but 	that after 	the
change 	overload 	pay 	could only 	be 	earned 	for 	assignment 	of more
than 	140 	students. 	In 	fact, 	Glenn 	testified 	that 	in 	the 	fall
of 	1979, 	he had 	successfully 	refused 	to 	"increase 	his workload"
from 125 	to 	140 	students, 	arguing 	that 	such 	an 	increase
violated 	the 	District's policy 	as 	he 	understood 	it.
Apparently, 	the 	District did 	not disagree with Glenn as,
according 	to the 	testimony of Jenkins, 	it 	got other 	teachers
outside 	the 	CWE department 	to 	handle 	Glenn's 	overload.
of 	1980, 	Irene 	Portillo was 	assigned only 	124 	students 	but 	she
taught 	2 classes, 	thus lowering 	her 	caseload 	13.34 percent 	from
the 	140 	required. 	However, 	it 	should 	be 	noted that the
District's 	requirement 	that 	CWE 	instructors 	teach 	classes
starting 	in 	the 	spring 	semester 	of 	1980 	is 	the 	subject of
another 	portion of 	the 	Association's 	charge. 	(See discussion,
infra.)
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Irene Portillo, 	the other 	CWE 	instructor, 	generally
corroborated 	Glenn's 	testimony. 	Portillo 	had 	been 	a CWE
instructor 	since 	the program was 	established 	in 	1974. 	She
testified 	that 	in 	1974 	each 	CWE 	instructor 	was 	assigned 	110
students; 	the 	assignment 	increased 	to 	125 	students 	in 	1975 	when
it was 	felt 	that 	the 	program was 	sufficiently 	"well on 	its 	way"
to enable 	CWE 	instructors 	to carry 	their 	"full 	load." 	In 	the
fall of 	1979, 	Huffman, 	who had 	just become 	director 	of 	the
program, 	informed 	the 	CWE staff 	that 	the 	following 	spring 	their
caseload 	would 	be 	increased 	from 	125 	to 	140 	students.
Thereafter, 	instructors would qualify 	for 	overload pay only
when more 	than 	140 	students 	were 	initially 	assigned. 	Portillo
testified 	that 	she 	protested 	this 	change 	on 	numerous 	occasions
to Huffman, 	who refused 	to consider 	it.
2. 	Classroom Assignments 	for 	CWE 	Instructors
In 	the 	spring 	of 	1980 Vince 	Glenn was 	assigned 	to 	teach 	a
one-unit 	"Career 	Development" 	course 	and 	Irene 	Portillo was
assigned to teach 	two one-unit 	classes. 	Again, 	in 	the 	fall of
1980 	she 	taught two classes.
Irene Portillo 	testified that, 	with one 	exception, 	prior 	to
the 	spring 	of 	1980 	only 	the 	director 	of 	the 	CWE program and
teachers 	from other 	departments 	taught 	classes 	while 	the 	CWE
instructors 	engaged 	primarily 	in 	their 	counseling 	and 	outreach
duties. 	She did, 	however, 	testify that 	in 1975 	she
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"voluntarily" 	agreed 	to 	teach 	a class 	when 	the 	District 	was
"short 	on money."
Tom 	Huffman 	testified 	that 	the 	reason 	the 	District 	assigned
CWE 	instructors 	to 	teach classes 	in 	the 	spring of 	1980, 	when
they 	had 	not 	previously 	done 	so,4 was 	that 	there 	was 	no more
money 	to hire 	teachers 	from outside 	the 	CWE department on 	an
overload 	basis. 	Huffman 	also 	testified 	that 	the 	language 	in
the 	CWE 	instructor 	job 	description 	requiring 	instructors 	to
"perform 	such 	other 	duties 	as 	may 	be 	assigned" 	permitted 	the
District 	to 	assign 	them 	teaching 	duties.5
4Huffman 	noted 	that 	Portillo had 	taught 	a 	class 	"at
least once 	before" 	the spring of 	1980, 	but did not
contradict 	her 	testimony 	that 	she 	had 	done 	so
"voluntarily."
5The 	CWE 	instructor 	job description 	reads 	as 	follows :
Job 	Description 	for
Full-time 	Instructor/Coordinator
Cooperative 	Work 	Experience 	(CWE)
Provide counseling, 	leadership, 	supervision
and 	jobsite 	coordination 	for 	approximately
125 	Cooperative Work 	Experience 	students
each 	semester 	during 	the 	academic 	year.
Develop 	and 	implement 	follow-up 	studies 	and
methods 	of 	evaluation of 	the 	CWE program.
Provide 	liaison between 	students, 	college
and 	employer 	in 	developing 	and 	monitoring
educational and 	occupational goals 	based 	on
realistic 	and 	measurable 	objectives.
Actively solicit and coordinate 	both part-
and full-tme positions within the commerical
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and 	industrial 	community 	related 	to 	the
occupational goals of 	the 	program's 	students
Maintain 	liaison 	and 	interface 	with
community 	employer 	representatives.
Assist 	the 	Director 	of Cooperative Work
Experience 	in 	the general 	development 	and
execution of 	the 	program's 	policy 	and
procedures. 	Provide 	guidance 	and 	support
for 	part-time 	instructor/coordinators
through 	in-service 	training, 	student
assignment, 	and procedures 	coordination.
Maintain 	liaison 	with 	allied 	programs 	at
other 	colleges 	and 	institutions 	and 	keep
informed 	of 	all 	developments 	affecting 	CWE
at 	Rio 	Hondo College.
Cooperate 	with 	other 	departments 	and
programs 	on campus 	to 	integrate 	and
facilitate 	CWE 	program.
Perform 	such other 	duties 	as 	may 	be 	assigned
by 	the 	Director 	of Cooperative Work
Experience.
3. 	Change 	in Computation of 	Pay/Public 	Services 	Department
Alex 	Panteleoni, 	chairperson of 	the 	public 	services
department, 	was 	the only witness 	who 	testified 	to 	this 	issue at
the 	hearing. 	In 	addition, 	the Association 	introduced 	into
evidence 	the 	"tub cards" 	(payroll 	records) 	of 	the 	instructors
in 	the public 	services 	department.
The 	public 	services 	department 	contains 	the college's
police 	science 	and 	fire 	science 	training 	programs. 	Panteleoni
has 	been 	chairperson of 	the 	department 	for 	seven or 	eight
years. 	Prior 	to that, 	he was coordinator 	of 	the 	police science
program.
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Panteleoni 	testified that during 	the 	1980-81 school year
there were 11.5 	full-time 	instructors 	in the public services
department. 	In 1979-80 there were 12.5 instructors, 	and prior
to that there had been as many as 16 full-time instructors.
It had been the past practice 	in the department for 	some
instructors to teach courses during the summer. 	Until the
summer session of 1980, 	an instructor who taught summer school
was paid at the same monthly rate as he or she had received
during the regular 10-month academic year. 	In the spring of
1980, 	the District informed these employees that henceforth
they would a l l be paid a straight 10-month salary and that if
they taught summer school they would be paid in some other
manner — either hourly or on a "course overload" basis.
Panteleoni 	testified that the reason the District made 	this
change 	was 	to 	allow 	"additional 	flexibility within 	the 	staff."
Panteleoni 	testified 	that 	of 	the 	12.5 	full-time 	1979-80
employees, 	about 7 	or 	8 worked more 	than 	10 months at a
continuation of 	their 	regular 	rate 	of pay. 	Similarly, 	in 	the
1978-79 	academic year, 	8 	or 	9 	employees worked during 	the
summer 	at 	a 	continuation of 	their 	regular 	rate 	of pay. 	He
further 	testified 	that 	some 	employees 	preferred 	to work 	during
the 	summer 	at 	an 	hourly 	rate 	of 	pay 	because 	they 	did 	not 	want
to 	be 	"bound 	by a contract." 	He did 	not 	identify 	to which
employees 	he was 	referring.
The 	employee 	tub 	cards 	corroborate 	Penteleoni's 	testimony.
9
9

Cards 	for 	12 	employees 	were 	introduced 	as 	evidence. 	Three of
those 	cards 	contain 	the 	records of part-time 	employees, 	Luis
Gunsulas, 	Keith Plehn, 	and Donald Williams. 	One of 	the cards
contains 	the 	records of 	Penteleoni, 	who continues 	to work 	an
11-1/2-month calendar 	and 	who 	is 	a 	supervisor.
Of 	the remaining 	nine employees, 	all had at one 	time or
another 	taught 	summer 	school 	and 	all 	were 	paid 	their 	regular
salary when 	they 	did 	so. 	This 	practice with 	several employees
extended 	back as 	far 	as 	10 	years.
The 	evidence 	further 	indicates 	that 	a l l 	seven 	full-time
employees, 	as well as 	the 	three part-time employees, 	were
shifted to a 10-month salary basis 	in the summer of 1980. 	Of
the five employees who taught summer 	school in the summer of
1980, 	all were paid either 	hourly or on an overload basis.
4. 	Change 	in Class 	Size/Business Department
The 	Association 	alleges 	that 	the 	District 	increased 	the
maximum size of 	three classes 	in 	the business 	department. 	In
support of 	this 	contention, 	it 	relied primarily on 	the
testimony of 	Ralph Bristol, 	professor 	of 	accounting 	and 	a
full-time 	employee 	of 	the 	District 	since 	1966.
Bristol 	testified 	that 	in 	the 	period 	from 	spring 	1977 	to
fall 	1978 	the maximum class 	size of 	Accounting 	52 	was
35 	students. 	In 	Accounting 1A and 	1B 	the maximum class 	size
was 	40 	students. 	The following 	semester, 	in 	the spring of
1979, 	Bristol 	testified 	that 	the 	District 	raised 	the maximum
10

class size 	in each of 	these classes 	from 35 	to 40 	in Accounting
52 	and 	from 4 0 	to 45 	in 	Accounting 1A and 	1B. 	In 	the 	fall 	of
1980, 	the 	District 	raised 	the maximum class 	size once 	again,
from 40 	to 4 5 	in Accounting 52, 	and from 45 	to 50 	in Accounting
1A 	and 	1B. 	Bristol 	testified 	that 	he 	spoke 	to 	the 	department
chairperson 	repeatedly 	in 	the 	spring 	and 	summer 	of 	1979 	about
the 	increase 	from 35 	to 40 	in Accounting 	52 	and 	that 	she 	agreed
that 	the maximum size of 	the class 	should 	be 	35. 	Bristol
testified 	that 	the 	department 	chairperson 	told 	him 	that 	the
only 	reason 	she 	could 	see 	for 	increasing 	the maximum class 	size
was 	to 	have 	a 	larger 	enrollment after 	normal attrition.
Bristol 	further 	testified 	that 	in 	the 	spring 	of 	1979 	five
desks 	were 	added 	to 	the 	35 	that 	were 	already placed 	in 	the
Accounting 	52 	classroom and 	that, 	since 	Accounting 	52 	required
specialized 	desks with 	calculators 	attached, 	the 	"implication"
was 	that 	the class size was henceforth 	to be 4 0 	students.
He 	testified 	that, 	because his 	accounting classes 	were very
popular 	and always 	filled to capacity, 	an 	increase 	in 	the
number 	of 	desks 	increased 	class 	size.
In 	the 	spring of 	1980, 	when 	the class 	size of Accounting 	52
was 	raised 	to 45, 	Bristol was 	told 	that Ken 	Nolton, 	the 	dean of
occupational education, 	was responsible 	for 	the 	increase.
Then, 	in the 	fall of 1980, 	the class size 	in Accounting 52
was 	decreased 	to 40 	students. 	At 	that 	time, 	Bristol 	talked to
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the 	chairperson of 	the 	business 	department, 	who 	told him 	that
there was 	a 	"master 	list" 	in 	the central office which 	indicated
that 	the maximum class 	size was 40, 	thus 	implying 	that 	the
increase 	to 45 	the 	previous 	spring 	had 	been a mistake.
In 	support of 	Bristol's 	testimony, 	the Association
introduced 	registration 	documents 	for 	the 	relevant 	accounting
courses 	for 	the 	fall 	semester 	of 	1979 	and 	the 	spring 	semester
of 	1980. 	These 	documents 	are cards 	for 	each 	course 	which 	show
the 	number 	of 	students permitted 	to sign 	up. 	Each 	card 	shows 	a
maximum class 	size. 	Thus 	"ticket number 	292," 	which 	reflects
the 	registration of 	one 	of 	the 	several 	Accounting 	52 courses
offered 	in 	the 	fall of 1979, 	shows 	that 	50 	students were
permitted 	to sign up. 	However, 	all 	students over 	the 	number 	35
were 	considered 	to 	be on 	the 	waiting 	list 	and could 	not 	be
enrolled until one of 	the 	first 	35 	students 	who signed 	up
dropped out 	of 	the 	class. 	These 	tickets 	corroborate 	Bristol's
testimony 	that class 	size was 	increased 	in 	the 	spring of 	1980.
Assistant 	Superintendent 	Don 	Jenkins 	disputed 	Bristol's
testimony. 	While 	he 	conceded 	that 	the 	registration materials
introduced 	by 	the Association 	indicated 	a change 	in 	the maximum
class 	size of 	the 	three 	accounting 	courses, 	he stated 	that
those 	documents 	did 	not 	reflect 	the 	District's 	"official"
policy on class 	size. 	Rather, 	that policy was embodied 	in 	the
"master 	course 	data" 	sheets. 	On cross-examination, 	Jenkins
conceded 	that 	the class 	size 	indicated 	on 	the 	registration
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tickets 	which 	Bristol 	relied on did 	reflect 	a 	"limit" 	on class
size. 	Jenkins was 	unable 	to explain why 	the class 	size
limitations 	set 	forth 	in 	those materials conflicted with 	those
set 	forth 	in 	the master 	course 	data 	list. 	He 	insisted,
however, 	that 	those materials 	did 	not 	reflect 	the official
District 	policy 	concerning 	class 	size.
The 	master 	course 	data 	sheets 	indicate 	that 	the maximum
class 	size of 	the 	three 	accounting 	classes was 	as 	follows:
Fall 	1978 	Accounting 	52 	- 	40 	students
Accounting 1A - 	45 	students
Accounting 1B - 	45 	students
Spring 	1980 	Accounting 	52 	- 	40 	students
Accounting 1A - 	45 	students
Accounting 1B - 	45 	students
Fall 	1980 	Accounting 	52 	- 	40 	students
Accounting 1A - 	45 	students
Accounting 1B - 	45 	students
Thus, 	according 	to the master 	course data 	sheets, 	the
maximum class 	size 	remained 	stable 	throughout 	the 	period 	in
dispute.
In addition, 	Phyllis 	Pearce, 	chairperson of 	the 	business
department, 	testified 	that 	the maximum class 	size of 	Accounting
52 	in 	the spring of 1980 was 	40. 	She could not, 	however,
account 	for 	the 	reason 	that 	the 	45-person 	limit 	appeared on 	the
registration 	tickets.
13

DISCUSSION
1. 	Increase 	In 	Caseload 	of Cooperative 	Work Experience
Instructors
The 	ALJ 	found 	that 	the 	increase 	in 	the 	Cooperative Work
Experience 	instructor 	caseload 	from 	125 	to 	140 	in 	the 	spring of
1980 	constituted 	an 	unlawful unilateral change 	of 	existing
policy. 	Pajaro Valley 	Unified 	School District 	(5/22/78) 	PERB
Decision No. 	51. 	The District argues 	that 	it made 	no
unilateral change of 	existing policy and, 	therefore, 	did 	not
violate subsection 3543.5(c).
The 	District 	does 	not 	deny 	that 	in 	the 	spring 	of 	1980 	it
unilaterally 	increased 	the 	number 	of 	students 	assigned 	to 	CWE
instructors from 125 	to 140. 	However, 	the District argues 	that
the 	job 	description of 	CWE 	instructors 	required 	them 	to counsel
125 	students 	and 	that, 	by raising 	the 	number 	of 	students
initially assigned 	to each 	instructor, 	it was only attempting
to 	bring 	the 	number 	of 	students 	actually 	counseled 	closer 	to
125. 	The 	Association argues 	that 	the 	assignment of 	125
students 	at 	the 	beginning 	of 	each 	semester 	constituted 	the
total caseload 	for 	CWE 	instructors 	and 	that 	the 	increase 	in
caseload 	was 	a modification of 	a 	long-established 	past
practice. 	The 	job description, 	according 	to 	the Association,
merely 	reiterates 	what 	had 	been 	the 	existing 	practice 	in 	the
District.
14

The 	CWE 	instructor 	job description 	states 	that 	each
instructor 	is 	to 	"provide counseling, 	leadership, 	supervision
and 	job-site coordination 	for 	approximately 	125 	Cooperative
Work 	Extension students 	each 	semester. 	. . . " 	On 	its 	face, 	the
job description 	is 	susceptible 	to either 	the 	District's or 	the
Association's 	interpretation. 	However, 	the 	record 	demonstrates
that 	actual practice 	in 	the District was consistent with 	the
Association's 	interpretation.
Thus, 	CWE 	instructors 	Vince Glenn 	and 	Irene 	Portillo
testified that 	the 	consistent practice 	in 	the 	District 	since
1975 	had 	been 	to 	assign 	each 	instructor 	125 	students 	to contact
at 	the 	beginning 	of 	the 	semester, 	of which 	a certain 	portion
would 	seek 	counseling 	services. 	The 	number 	of 	students 	who
actually 	received 	counseling 	varied 	from 	semester 	to 	semester,
but 	was 	always 	less 	than 	125. 	Since 	each 	instructor 	was
required 	to make 	initial contact with 	every 	student 	on 	the
list, 	Glenn 	and 	Portillo 	testified 	that 	the 	increase 	in
caseload 	from 125 	to 	140 	had 	a 	substantial 	impact 	upon 	the
amount of work 	they were 	required 	to perform. 	Moreover, 	the
evidence 	indicates 	that 	CWE 	instructors 	qualified 	for 	overload
pay at 	the 	beginning 	of 	each 	semester 	when 	they 	were 	assigned
more 	than 	125 	students, 	thus undercutting 	the District's
contention 	that 	the 	CWE 	instructor 	"caseload" 	meant 	the 	number
of 	students 	actually 	counseled, 	not 	those 	initially 	assigned.
15

Other 	than 	the 	job description 	itself, 	the 	District offered
no 	evidence 	to 	rebut 	the 	Association's 	contention 	that 	the
assignment 	of 	125 	students constituted 	the 	total 	CWE caseload.
Accordingly, 	we 	find 	that 	the 	increase 	from 125 	to 	140 	students
in 	the 	spring 	of 	1980 constituted 	an unlawful unilateral 	change
of existing 	policy 	in 	violation of 	subsection 3543.5(c) 	and,
concurrently, 	subsection 3543.5(b). 	Pajaro Valley Unified
School District, 	supra; 	Grant Joint Union High School District
(2/26/82) 	PERB Decision No. 	196; 	San Francisco Community
College District 	(10/12/79) 	PERB Decision No. 	105.
2. 	Classroom Assignments 	for 	CWE 	Instructors
The 	ALJ 	found 	that 	there 	had 	been 	a 	"regular 	and 	consistent
past practice" 	in 	the 	District of 	not 	assigning 	CWE 	instructors
classroom 	teaching 	responsibilities. 	By 	assigning 	them 	such
duties 	in 	the 	spring of 	1980, 	the 	District 	departed 	from 	this
established practice, 	thereby violating 	subsection 3543.5(c) 	of
the Act.
The 	District 	does 	not 	deny 	that 	it 	had 	not 	previously
assigned 	CWE 	instructors 	classroom 	teaching 	responsibilities,
but 	argues 	that 	the 	teaching 	of 	"career 	development" 	courses
fell within 	the 	scope of 	their 	existing 	job duties 	and,
therefore, 	did 	not 	constitute 	an unlawful change of policy. 	In
support of 	its position, 	it points 	to 	language at 	the 	end of
the 	CWE 	instructor 	job description 	requiring 	instructors 	to
"perform such 	other 	duties 	as may be 	assigned" 	as well as 	the
explicit 	use 	of 	the 	term 	"instructor" 	in 	the 	job 	title.
16

An unlawful unilateral change will be 	found where 	the
charging 	party proves, 	by a preponderance of the evidence, 	that
an 	employer 	unilaterally altered 	an 	established 	policy. 	Grant
Joint Union High School District, 	supra, 	see also NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177]. 	The nature of existing
policy 	is 	a question of 	fact 	to 	be determined 	from an
examination of 	the 	record as 	a 	whole. 	It may be 	embodied 	in
the terms of a collective agreement 	(Grant, 	supra). 	In the
absence 	of 	such 	a contract provision, 	existing 	policy may be
ascertained 	by examining 	past practice 	(Pajaro Valley, 	supra)
or 	such other 	evidence as 	the 	job description before 	us 	in 	this
case.
In 	reviewing 	the 	record, 	we 	are 	unable 	to sustain 	the ALJ's
finding 	that 	the 	assignment 	of 	teaching 	duties 	to 	CWE
instructors was, 	on the 	facts of this case, 	an unlawful
departure 	from 	existing 	policy. 	Although 	it 	is unrefuted 	that
CWE 	instructors 	had 	not 	previously 	been 	given 	teaching
assignments, 	we 	find 	that 	the 	assignment of 	CWE 	instructors 	to
teach 	courses 	in 	"career 	development" was 	reasonably
comprehended within 	the 	scope 	of 	their 	existing 	job duties.
The CWE instructor 	job description is, 	on its 	face, 	silent
as 	to possible 	teaching 	assignments, 	despite 	the 	fact 	that 	it
specifies 	a number 	of other 	duties. 	While we 	do not 	accept 	the
District's 	argument 	that 	catchall 	language 	in 	a 	job description
or 	job 	title 	are 	themselves 	sufficient 	to overcome 	evidence 	of
a contrary past practice, 	we 	find 	that, 	when 	the job
17

description 	is viewed 	in 	light of 	the nature of 	the 	CWE program
and 	the 	type of courses 	CWE 	instructors were assigned 	to 	teach,
the 	District's conduct 	was 	permissible.
The 	record 	establishes 	that 	CWE 	instructors 	had
traditionally 	been 	assigned 	a wide variety of 	duties 	and 	a 	great
deal of 	control over 	the 	day-to-day operation of 	the 	CWE
program. 	CWE 	instructors 	not only 	provided 	individualized
counseling 	services 	to 	students 	but were 	required 	to 	seek 	out
and 	meet with potential employers 	in 	the community, 	attempt 	to
match 	up 	those 	employers with 	students 	seeking 	employment,
coordinate 	the 	CWE program with other 	college 	services, 	and
perform a number 	of administrative duties. 	In addition, 	they
were 	also 	required 	to 	supervise part-time 	instructors. 	Thus,
it 	is 	clear 	that 	CWE 	instructors were more 	than 	simply 	job
"counselors" but, 	as 	their 	job title 	indicates, 	"coordinators"
of 	the college's 	employment 	services program. 	Moreover, 	the
evidence 	indicates 	that 	the courses 	in 	"Career 	Development"
which 	Glenn 	and 	Portillo were 	assigned 	to 	teach 	had 	long 	been 	a
regular 	part of 	the 	CWE 	program. 	Their 	subject 	matter 	was
intimately 	related 	to 	the 	CWE program's 	employment 	counseling
and 	community 	outreach 	functions. 	Portillo conceded 	that 	she
and 	Glenn were 	the most qualified 	persons 	to 	teach 	career
development courses, 	since 	the 	subject 	matter 	of 	the courses
was 	closely 	related 	to 	their 	other 	duties 	and was 	well 	within
their area of 	expertise. 	Therefore, 	it may be 	fairly
18

ascertained 	from 	the 	record 	that 	the 	assignment 	of 	teaching
duties 	to CWE 	instructors was 	closely 	enough 	related 	to 	their
existing 	duties 	as 	not 	to be 	an unlawful policy 	change.
3. 	Change 	in 	Computation of 	Pay/Public 	Services 	Department
The 	ALJ 	found 	that 	there 	was 	an 	established 	past 	practice
in 	the 	District 	of compensating 	public 	services 	department
instructors 	for 	teaching 	summer 	school 	by continuing 	to pay
them 	their 	regular 	salary 	rather 	than 	paying 	them 	a 	separate
summer 	school 	rate. 	The 	District does 	not 	deny 	that
instructors who 	taught 	summer 	school 	in 	the 	summer 	of 	1980 were
not paid 	in 	the 	same manner 	as 	in prior 	years, 	but argues 	that
public 	services 	department 	instructors 	had 	worked 	various
lengths of 	time 	in previous years 	and 	that 	the 	District was,
therefore, 	privileged to change 	their 	"calendar."
The 	District mischaracterizes 	the nature of 	the
Association's 	charge. 	Rather 	than 	alleging 	that 	it 	altered
employee calendar 	or work 	assignments, 	the 	Association alleged
that 	the 	District 	altered 	the method 	of 	compensating 	public
services 	department 	instructors 	for 	teaching 	summer 	school
courses.
The 	documentary 	evidence 	clearly 	supports 	the 	hearing
officer's 	finding 	that, 	in prior years, 	full-time employees who
taught 	summer 	school were 	paid 	by 	continuing 	their 	full-time
salary 	during 	the 	summer. 	Such was 	the 	consistent 	practice
dating 	back 	10 	years 	for 	some 	employees. 	In 	the 	summer 	of 	1980
19

this 	practice 	was 	altered 	and 	all 	employees 	were 	paid on 	a
10-month 	basis, 	with 	hourly or 	overload payment 	for 	summer
school courses 	taught.
Since 	the 	District 	failed to 	rebut 	this 	evidence, 	the ALJ's
finding of a violation of 	subsections 3543.5(c) 	and 	(b) 	is
affirmed. 	Pajaro Valley 	Unified School District, 	supra; 	Grant
Joint Union High School District, 	supra; 	San Francisco, 	supra.
4. 	Change In Class 	Size/Business 	Department
The 	ALJ 	found 	that 	the 	maximum class 	size of 	specified
courses 	in 	the 	business 	department was 	unlawfully 	increased 	by
the 	District. 	Although 	he 	acknowledged 	that 	the 	"master 	course
data 	sheets" 	introduced by 	the 	District 	showed no change 	in
class 	size, 	he 	found 	that 	those 	documents were 	inconsistent
with 	the 	actual experience 	of classroom 	instructors 	and 	the
District's class 	enrollment procedure.
The 	District 	raises 	two arguments 	in 	its 	exceptions:
first, 	that, 	irrespective of other 	evidence, 	the master course
data 	sheets 	reflect 	the 	"official" 	District policy on class
size; 	and 	second, 	that 	there was no evidence 	that class size
ever 	actually 	increased. 	We 	find 	that 	the 	evidence 	establishes
that 	the 	District 	unilaterally 	changed 	its 	established 	policy
with 	respect 	to class 	size of 	specified courses 	in 	the 	business
department.
Ralph Bristol, 	professor 	of accounting, 	testified that 	in
20

the 	spring 	of 	1980 	the 	District 	raised 	the maximum 	number 	of
students 	in Accounting 	52, 1A and 1B courses. 	Although he 	saw
no official 	District memoranda 	reflecting 	this 	change, 	he 	was
aware of 	the change 	by observation of 	the 	number 	of 	students 	in
his classes. 	Thus, 	for 	example, 	in his Accounting 52 classes,
five 	additional 	specialized desks were 	added 	in 	the 	spring of
1980 	which, 	because of 	their 	size, 	caused 	increased crowding 	in
the 	classroom. 	When he 	complained 	to 	the 	chairperson of 	the
business 	department 	about 	the change, 	it was acknowledged that
class 	size had 	been 	increased 	and 	he was 	told 	that 	it 	had 	been
done 	to 	keep class 	size 	higher 	after 	students 	"dropped."
However, 	Bristol 	testified that his 	classes 	had, 	for 	several
years, 	been 	filled 	to maximum capacity, 	so 	that 	this 	change
actually 	increased 	class 	size 	beyond 	the 	prior 	maximum 	limit 	in
the 	three courses.
Bristol's 	testimony 	was 	corroborated 	by 	course 	registration
documents 	introduced 	by 	the 	Association. 	These 	documents
reflect 	the 	actual number 	of 	students 	who 	enrolled 	in 	the 	three
accounting courses 	in 	the 	fall of 	1979 	and 	the 	spring of 	1980
and 	show 	that 	the maximum 	number 	of 	students 	permitted 	to
enroll 	increased 	in each class.
The 	District 	was 	unable 	to account 	for 	the 	discrepancy
between 	the master 	course 	data 	sheets on 	the one 	hand, 	and 	its
own 	registration materials 	and Bristol's 	testimony 	on 	the
other. 	The ALJ 	resolved 	this conflict 	in 	favor 	of 	the
21

Association, 	finding 	that 	that evidence, 	which reflected 	the
actual 	daily 	practice 	followed 	in 	the 	District 	rather 	than 	its
theoretical 	"official" 	policy, 	was 	the 	standard 	by which past
practice would 	be ascertained. 	We 	agree. 	Whether 	or 	not 	the
master 	course 	data 	sheets 	reflected 	"official" 	District policy
is 	irrelevant, 	so 	long 	as 	the 	established policy with 	regard 	to
class 	size was, 	in actual practice, 	unilaterally altered by the
District. 	Since we 	find 	that 	the 	evidence 	establishes 	an
alteration of 	existing 	policy, 	the 	finding 	of a violation of
subsections 3543.5(c) 	and 	(b) 	is affirmed. 	Pajaro Valley
Unified 	School District, supra; 	Grant 	Joint 	Union High 	School
District, supra; San Francisco, supra.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case 	and pursuant 	to Government
Code 	subsection 3541.5(c), 	it 	is hereby ORDERED that 	the Rio
Hondo 	Community 	College 	District, 	its 	governing 	board 	and 	its
representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and negotiate 	in 	good
faith 	with 	the 	exclusive 	representative 	by 	taking 	unilateral
action on matters within 	the 	scope of 	representation, 	as
defined 	in 	section 3543.2, 	and 	specifically with 	respect 	to:
(a) 	Increasing 	the 	number 	of 	registered 	students
for 	Cooperative 	Work 	Experience 	instructor/coordinators 	from
125 to 140.
22

(b) 	Altering 	contract 	terms 	for 	instructors 	in 	the
public 	services 	department.
(c) 	Increasing 	maximum class 	size 	of 	specified
courses 	in 	the 	business 	department.
(d) 	Altering 	the 	formula 	for 	compensating 	physical
sciences 	field 	studies 	instructors.
2. 	Denying 	the 	Rio 	Hondo 	Faculty 	Association 	its 	right
to 	represent 	unit 	members 	by 	failing 	and 	refusing 	to meet 	and
negotiate 	about matters 	within 	the 	scope 	of 	representation.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	PURPOSES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
1. 	Rescind 	the 	requirement 	that 	Cooperative Work
Experience 	instructor/coordinators 	maintain 	a 	caseload 	in
excess 	of 	125 	registered 	students. 	Pay 	to Vince 	Glenn 	and
Irene 	Portillo 	overload 	compensation 	for 	all 	registered
students 	in 	excess 	of 	125 	from 	the 	spring 	semester 	1980 	to 	the
present. 	If 	an 	instructor 	has 	had 	a 	classroom assignment 	in
addition 	to 	his/her 	caseload, 	he/she 	shall 	qualify 	for 	overload
pay 	with 	a 	proportionally 	reduced 	caseload, 	consistent 	with
existing 	policy. 	Such 	payment 	shall 	include 	7 	percent 	per
annum 	interest.
2. 	Rescind 	the 	requirement 	that public 	services
department 	instructors' 	salaries 	be 	on 	a 	10-month 	contract 	with
payment 	for 	the 	summer 	classes 	to 	be 	made 	on 	the 	summer 	school
scale. 	Pay 	all public 	services 	department 	instructors
23
.

compensation 	for 	summer 	school 	employment 	from 	1980 	to 	the
present 	on 	the 	basis 	of 	such 	instructors 	having 	had 	a 	regular
year 	contract 	for 	all courses 	taught 	rather 	than 	a 	separate
summer 	school compensation 	rate 	for 	summer 	school courses.
Such 	payment 	shall 	include 	7 	percent 	per 	annum 	interest.
3. 	Rescind 	the 	policy which 	increased 	the 	maximum
number 	of 	students 	permitted 	to 	register 	during 	the
registration 	period 	in 	the 	Introduction 	to Accounting 	and
Principles 	of 	Accounting A 	& B courses. 	The maximum 	shall be
returned 	to 	the 	level maintained prior 	to spring 	1979. 	Pay 	to
all 	District 	instructors 	of 	Introduction 	to Accounting 	and
Principles 	of Accounting 	A & B 	courses, 	from the 	spring
semester 	1979 	to 	the 	present, 	overload pay 	for 	all 	students
registered 	in 	excess 	of 	the maximum class 	size prior 	to 	such
spring 	semester 	1979. 	Such payment 	shall 	include 	7 	percent per
annum 	interest.
4. 	Rescind 	the 	policy which 	altered 	the 	formula 	for
compensating physical 	sciences 	field 	studies 	instructors, 	and
pay 	to 	affected 	employees 	the 	difference 	between 	the 	former
rate 	of pay 	and 	the 	existing 	rate 	of pay 	for 	any 	losses 	due 	to
the District's 	unlawful conduct. 	Such payment 	shall 	include
7 	percent 	per 	annum 	interest.
Within 	five 	(5) 	workdays 	after 	the 	date 	of 	service of
this 	final decision 	in 	this matter, 	post at all work 	locations
where notices 	to employees 	customarily 	are 	posted, 	copies of 	the
24

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 	that 	the 	copies 	are 	not 	altered,
reduced 	in 	size, 	defaced or 	covered 	with 	any other 	material.
Within 	twenty 	(20) 	consecutive workdays 	from the
service 	of 	this 	decision, 	notify 	the 	Los Angeles 	regional
director 	of 	the 	Public 	Employment 	Relations 	Board 	in writing 	of
the 	steps 	the 	employer 	has 	taken 	to comply with 	the 	terms 	of
this Order. 	Continue 	to 	report 	in writing 	to 	the 	regional
director 	periodically 	thereafter 	as 	directed. 	All 	reports 	to
the 	regional director 	shall 	be 	served 	concurrently 	on 	the
charging 	party 	herein.
C. 	All other 	charges 	are 	hereby 	DISMISSED.
Member Morgenstern joined 	in 	this 	Decision.
Member 	Jensen's 	concurrence 	and 	dissent begins 	on page 	26.
25

Member JENSEN concurring and dissenting:
I concur with the majority opinion, 	except as to the
finding that the employer's action to increase the caseload of
cooperative work experience 	instructors 	constituted an unlawful
unilateral change of existing policy in violation of subsection
3543.5(c) and, concurrently, subsection 3543.5(b). 	I would
dismiss this charge, 	even though there was a change in the past
practice. 	The job description clearly states 	"provides
counseling, 	leadership, 	supervision and job site coordination
for approximately 125 Cooperative Work Experience students 	. 	. 	. 	.
The change in past practice 	(i.e., 	the registration of 140
rather than 125 students) 	did not, 	according to the facts, 	cause
the CWE instructor/coordinator to exceed the 125-student figure as
specified, 	in that the actual number of students who received the
specified services appears to have remained within the limits of
the job description. 	It may be true that there was a unilateral
change 	in the method utilized 	for the qualification of overload
pay, 	but I fail to see a charge as to that possible violation.
26

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-1157 	Rio
Hondo 	Faculty Association, 	CTA/NEA v. 	Rio 	Hondo 	Community
College 	District, 	it 	has 	been 	found 	that 	the 	Rio 	Hondo
Community 	College 	District 	violated 	the 	Educational 	Employment
Relations 	Act. 	As 	a 	result 	of 	this 	conduct, 	we 	have 	been
ordered 	to 	post 	this 	Notice, 	and 	we 	will:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Failing 	to 	negotiate 	in 	good 	faith 	with 	the
Association 	by:
(a) 	Increasing 	the 	number 	of 	registered 	students
for 	Cooperative 	Work 	Experience 	instructor/coordinators 	from
125 	to 140.
(b) 	Altering 	the 	contract 	terms 	of 	instructors
in 	the 	public 	services 	department.
(c) 	Increasing 	the 	maximum class 	size 	of 	courses
in 	the 	business 	department.
(d) 	Altering 	the 	formula 	for 	compensating
physical 	sciences 	field 	studies 	instructors.
2. 	Denying 	the 	Rio 	Hondo 	Faculty 	Association, CTA/NEA
its 	right 	to 	represent 	unit 	members 	by 	failing 	to 	negotiate 	in
good 	faith 	with 	the 	Association.
B. 	TAKE 	THE 	FOLLOWING ACTIONS:
1. 	Rescind 	the 	requirement 	that 	Cooperative 	Work
Experience 	instructor/coordinators 	maintain 	a 	caseload 	in
excess 	of 	125 	registered 	students.
2. 	Pay 	to 	Vince 	Glenn 	and 	Irene 	Portillo 	overload
compensation 	for 	all 	registered 	students 	in 	excess 	of 	125 	from
the 	spring 	semester 	1980 	to 	the 	present. 	If 	an 	instructor 	had
a 	classroom 	assignment 	in 	addition 	to 	his/her 	caseload, 	he/she
shall 	qualify 	for 	overload 	pay 	with 	a 	proportionally 	reduced
caseload, 	consistent 	with 	existing 	policy. 	Such 	payment 	shall
include 	7 	percent 	per 	annum 	interest.
1

3. 	Rescind 	the 	requirement 	that public 	services
department 	instructors' 	salaries 	be 	on 	a 	10-month 	contract 	with
payment 	for 	the 	summer 	classes 	to 	be 	made on 	the 	summer 	school
scale.
4. 	Pay 	to all public 	service 	department 	instructors
compensation 	for 	summer 	school 	employment 	from 	1980 	to 	the
present 	on 	the 	basis 	of 	such 	instructors 	having 	had 	a 	regular
year 	contract 	for 	all courses 	taught 	rather 	than 	a 	separate
summer 	school compensation 	rate 	for 	summer 	school courses.
Such 	payment 	shall 	include 	7 	percent 	per 	annum 	interest.
5. 	Rescind 	the 	policy which 	raised 	the maximum
number 	of 	students 	permitted 	to 	register 	during 	the
registration 	period 	in 	the 	Introduction 	to Accounting 	and
Principles 	of Accounting A 	& B courses. 	The maximum shall be
returned 	to 	the 	level maintained prior 	to 	spring 	1979.
6. 	Pay 	to all District 	instructors 	of 	Introduction
to Accounting 	and Principles 	of Accounting A & B 	courses, 	from
the 	spring 	semester 	1979 	to 	the present, 	overload pay 	for 	all
students 	registered 	in 	excess 	of 	the 	maximum class 	size 	prior
to spring 	semester 	1979. 	Such payment 	shall 	include 	7 	percent
per 	annum 	interest.
7. 	Rescind 	the 	policy which 	altered 	the 	formula 	for
compensating 	physical 	sciences 	field 	studies 	instructors.
8. 	Pay 	to all 	affected 	physical 	sciences 	field
studies 	instructors 	the 	difference 	between 	the 	former 	rate of
pay 	and 	the 	existing 	rate 	of pay. 	Such 	payment 	shall 	include
7 	percent 	per 	annum 	interest.
Dated: 	RIO 	HONDO 	COMMUNITY COLLEGE DISTRICT
By Authorized 	Agent
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
22