Rio Hondo Community College District (PERB 0279EB)

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.
Compliance 	Case No. 	LA-C-64
PERB Decision No. 	279b
June 30, 1986
Appearances; 	Charles 	R. 	Gustafson, 	Attorney for Rio Hondo Faculty
Association, 	CTA/NEA; 	Wagner, 	Sisneros 	& Wagner by Patrick D.
Sisneros 	for 	Rio 	Hondo 	Community College 	District.
Before Hesse, 	Chairperson; 	Burt and Porter, 	Members.
DECISION
HESSE, 	Chairperson: 	Rio Hondo Faculty Association, 	CTA/NEA
(Association) 	appeals a decision, 	attached hereto, 	of a
compliance 	officer 	of 	the 	Public 	Employment 	Relations 	Board
(PERB or Board). 	The 	compliance officer 	found that 	the
collective bargaining 	agreement 	signed on June 	10, 	1981 	by the
Association 	and 	the 	Rio 	Hondo 	Community 	College 	District
(District) 	established a new class 	size 	status 	quo, 	which
terminated 	the 	District's 	duty 	to 	return 	class 	size 	maximums 	to
pre-1979 	Spring 	semester 	levels. 	He 	also 	ruled 	that 	the
District's 	liability 	for 	overload pay was 	based 	on 	the 	increase
in maximum 	class 	size 	caused by 	the 	District's 	unilateral
change, 	rather 	than total enrollment, 	but 	that 	such liability
would 	terminate 	at 	the beginning 	of 	the 	Fall 	1981 	semester.
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For 	the 	reasons 	which 	follow, 	we 	affirm 	the 	findings 	of
fact 	and 	conclusions 	of 	law 	reached by 	the 	compliance 	officer.
Because of a misstatement 	in the Order, 	we modify 	it 	consistent
with 	the 	discussion below.
PROCEDURAL 	HISTORY AND 	FACTUAL 	SUMMARY
In the underlying decision 	(PERB Decision No. 	279), 	the
Board 	found 	that 	the 	District 	unilaterally 	increased 	the 	class
size 	maximums 	for 	specified 	courses 	in 	the 	Business 	Department
beginning 	in the 	Spring of 	1979. 	In 	that decision, 	the 	Board
ordered 	the 	District 	to 	return 	class 	size 	maximums 	to 	the
levels 	maintained prior 	to Spring 	1979 	and 	to pay 	all 	affected
instructors 	"overload pay," 	i.e., 	a premium wage based on 	the
number 	of 	students 	registered 	in excess 	of 	the pre-1979 	Spring
semester 	maximum 	class 	size.
In 	its 	request 	for 	reconsideration of 	PERB 	Decision 	279,
the 	District 	argued 	that 	it had 	reached 	agreement 	with 	the
Association 	concerning 	the 	former's 	unlawful 	conduct. 	The
Board 	granted 	the 	District's 	request 	for 	reconsideration 	of 	the
remedy 	and modified 	its 	order 	to permit 	termination of 	the back
pay 	award 	at 	the 	date 	upon which 	the 	parties 	reached 	agreement
or impasse. 	(PERB Dec. 	No. 	279a.)
A hearing was 	conducted 	to 	determine 	if 	the 	District had
complied 	with 	the 	revised Board order. 	The 	District 	stated
that 	it had 	not 	yet 	complied with paragraph B.3 	of 	Decision No.
279a 	because 	it 	could 	not 	reach 	agreement 	with 	the Association
as 	to 	whether 	the 	parties 	had 	reached 	a 	negotiated 	agreement
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concerning the 	subject of maximum class 	size. 	Further, 	it had
not 	compensated 	the 	affected 	instructors 	with 	overload pay 	as
ordered by 	the 	Board.
Two 	issues 	were 	presented 	to 	the 	PERB 	compliance 	officer:
(1) 	Did the parties' 	collective bargaining agreement 	(signed
June 	10, 	1981) 	terminate 	the District's 	duty to return class
size 	maximums 	to 	the 	pre-1979 	Spring 	semester 	levels 	and,
accordingly, 	limit 	the 	District's 	liability 	for 	overload pay?
(2) 	Did 	the Board 	intend 	for 	the 	District 	to compensate 	the
accounting 	instructors 	for 	all 	students 	enrolled 	in excess 	of
the 	pre-1979 	Spring 	levels, 	or was 	the 	District's 	liability 	to
be 	calculated based 	on 	the 	number 	of 	students 	per 	class 	by
which 	it 	raised 	the 	class-size maximums?
Relying on Pittsburg 	Unified 	School 	District 	(1984) 	PERB
Decision No. 	318a, 	the compliance officer concluded that 	the
1981 	agreement 	terminated 	the 	District's 	liability. 	H	1 The
compliance 	officer 	found 	the 	"basic 	subject 	matter" 	of 	class
1In 	Pittsburg Unified 	School 	District, 	supra, 	the Board
held:
We 	disagree 	with 	the 	Association's 	argument
that 	. 	. 	. back pay should terminate only
when 	a 	subsequently 	negotiated 	agreement
specifically 	addresses 	the 	conduct
complained 	of 	in 	the 	unfair practice 	charge
itself. 	In order 	to 	terminate 	liability 	for
back 	pay, 	a 	subsequently negotiated
agreement 	need 	only 	address 	the 	basic
subject matter of 	the unilateral 	change, 	and
need not 	constitute a 	"waiver" 	by the
Association of 	its 	claim 	that 	the 	District
acted 	unlawfully. 	(Emphasis 	added.)
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size 	was 	addressed 	in the parties' 	collective bargaining
agreement effective June 11, 	1981.
With 	respect 	to 	the 	overload pay 	issue, 	the 	compliance
officer 	found 	that 	the 	District's 	overload pay 	liability would
be 	limited 	to 	the 	increase 	in 	students 	registered 	as 	a
consequence 	of 	the 	District's 	unilateral 	change. 	The
compliance 	officer 	found 	that 	compensating 	instructors 	for
those 	additional 	students 	whom 	they had 	voluntarily 	admitted 	to
their 	classes 	could be 	viewed 	as 	a punitive 	rather 	than a
remedial 	measure, 	since 	instructors had 	never before been paid
extra 	for 	excess 	students 	they had 	voluntarily 	admitted.
DISCUSSION
Termination of 	Back 	Pay
The 	compliance 	officer 	properly 	concluded 	that 	the 	1981
agreement 	terminated 	the 	District's 	liability 	for 	back 	pay. 	As
the hearing 	officer 	noted, 	pursuant 	to our decision 	in
Pittsburg, 	supra, 	only the 	"basic 	subject matter" 	need be
addressed 	to terminate 	liability. 	It was 	also proper 	for him
to 	find 	that 	the 	1981 	agreement 	altered 	the 	status 	quo, 	and
that 	reducing 	class 	size 	maximums 	to 	the pre-1979 	level 	was
therefore inappropriate.2
2The 	Board has 	previously 	declined 	to 	order 	restoration
of 	the 	status 	quo where 	such action 	"would 	not 	effectuate 	the
purposes 	of 	the Act." 	(See Modesto 	City and High 	School
Districts 	(1986) 	PERB Decision No. 	566, 	Rio Hondo Community
College 	District 	(1983) 	PERB Decision No. 	279a, 	Delano Union
Elementary School 	District 	(1982) 	PERB 	Decision No. 	213a.)
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Furthermore, 	not only did the June 	10, 	1981 agreement cover
the 	"basic 	subject matter" 	of 	class 	size, 	so did 	two subsequent
agreements.3 A new 	status 	quo was 	created 	through 	the
negotiation process. 	To 	ignore 	these 	agreements would be, 	in
effect, 	a repudiation of that process.
Amount 	of 	Overload 	Pay
In 	PERB 	Decision No. 	279, 	the Board ordered the District 	to
Pay to all 	District 	instructors 	of
Introduction 	to Accounting 	and 	Principles 	of
Accounting A & 	B 	courses 	overload pay 	for
all 	students 	registered 	. . . 	in excess 	of
the 	maximum 	class 	size prior 	to 	such 	spring
semester 1979. 	. 	. 	.
The 	compliance 	officer 	found 	that 	the 	key 	to 	the 	Board's
intent was 	not 	the word 	"all," 	but 	the phrase 	"maximum class
size 	prior 	to 	such 	spring 	semester 	1979." 	Reasoning 	that 	the
term 	"maximum 	class 	size" 	took 	into account 	the past practices
of 	the parties, 	including practices 	of 	the parties 	affecting
consensual 	class 	size 	maximums, 	the 	compliance 	officer 	ordered
overload 	pay 	for
all 	District 	instructors 	who 	taught
Introduction 	to Accounting or 	Principles 	of
Accounting 	[1]A 	and 	[1]B 	from 	spring
semester 	1979 	to 	fall 	semester 	1981 	for
every 	student 	registered 	during 	that 	period
in excess 	of 	the maximum class 	size 	stated
in 	the Master 	Course 	Data 	File 	immediately
3The 	agreement 	signed June 	10, 	1981, 	was effective
through June 	30, 	1983. 	An amended agreement dated October 	27,
1982, 	had effective dates of October 	28, 	1982 through June 	30,
1983, 	and a subsequent agreement dated June 	13, 	1986, 	had
effective dates of July 1, 	1983 	through June 	30, 	1986. 	Each of
the 	subsequent 	agreements 	contained 	an 	identical 	Article 	8
entitled 	Class 	Size.
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before 	the 	1979 	spring semester, 	without
consent 	of 	the 	course 	instructor.
We 	find 	the 	compliance 	officer 	properly 	analyzed 	PERB
Decisions 	279 	and 	279a 	in 	finding 	no 	intent 	to 	award 	overload
pay 	where 	the 	instructors 	consensually 	admitted 	additional
students 	above 	the 	unilaterally 	increased 	maximum 	class 	size.
Central 	to 	the 	District's 	violation 	is 	its 	unilateral 	decision
to permit 	the 	registration of 	students 	in 	numbers 	over 	and 	above
the 	maximum 	class 	size 	established prior 	to 	the 	1979 	Spring
semester. 	The 	number 	of 	students 	that 	instructors 	voluntarily
registered 	in 	excess 	of 	the 	unilaterally 	increased 	maximum 	class
size, 	however, 	falls outside of the District's wrongful action.
The 	actual 	practice 	in 	the 	District 	showed 	that 	instructors 	did
not 	receive 	overload 	pay 	for 	such 	consensually 	admitted
additional 	students.
While 	we 	agree with 	the 	analysis 	of 	the 	compliance 	officer,
however, 	he 	mistakenly used 	the 	term 	"Master 	Course 	Data 	File"
in his 	Order 	as 	the 	benchmark 	for 	determining 	the 	maximum 	class
size 	for 	purposes 	of 	calculating overload pay. 	In 	its 	original
decision, 	the 	Board 	found 	that 	the 	District's Master 	Course 	Data
File 	did 	not 	conform 	to 	the 	actual 	practice 	in the 	District.
While 	the 	data 	file 	showed 	no 	increase 	in maximum 	class 	size,
the 	testimony of 	an 	accounting 	instructor, 	corroborated by
course 	registration documents, 	showed 	increases 	in class 	size
maximums. 	The Board, 	in reliance on the 	testimony and
documents, 	found 	that 	the 	District 	unilaterally 	increased 	the
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maximum 	class 	size 	for 	the 	affected 	accounting 	courses. 	(PERB
Dec. 	No. 	279 at pp. 	20-22.)
Based 	on 	the 	Board's 	previous 	treatment 	of 	the Master 	Course
Data evidence, 	it 	follows 	that 	the data 	file 	should not be used
in determining 	the 	amount 	of 	overload pay 	to which 	the business
instructors 	are 	entitled. 	Instead, 	the 	maximum 	class 	size 	as
reflected 	in 	the 	registration documents 	is 	the 	appropriate
benchmark 	to use 	in determining 	the 	amount 	of overload pay. 	The
evidence 	indicates 	that 	in the 	Spring of 	1979, 	the District
increased 	the 	maximum 	class 	sizes by 	five 	students. 	The
registration documents 	indicate, 	however, 	that 	the maximum class
sizes 	were 	temporarily returned 	in the 	Fall 	of 	1979 	to 	their
levels prior 	to the 	unilateral 	change. 	Then, 	in the 	Spring of
1980, 	the maximum sizes were again 	increased, 	this 	time by 	ten
students. 	In the Fall of 1980, 	however, 	the classes were
apparently 	reduced by 	five 	to 	the higher 	level 	set 	in the 	Spring
of 	1979.
At 	the 	compliance hearing, 	the 	District presented evidence
that 	all 	students 	officially 	registered 	were 	listed 	on 	a
"permanent 	roll 	sheet," 	which 	is 	issued 	to 	instructors 	during
the 	third week 	of 	the 	semester.4 The 	District 	receives 	its
apportionment 	funds 	from 	this 	record. 5 Since 	the 	first
accurate 	listing of 	the 	actual 	number 	of 	students 	enrolled 	in
4See 	Compliance 	Transcript, 	page 	22.
5"Apportionment" 	is 	that 	amount 	of money allotted 	to 	each
community 	college 	by 	the 	state.
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class 	appears 	on 	the permanent 	roll 	sheet,6 we 	find 	that 	this
document 	should be used 	to 	calculate 	the 	instructors' 	overload
pay. 	Where 	students were 	enrolled 	subsequent 	to 	the 	sheets
being 	printed,7 these 	changes 	must 	be 	added 	to 	the
calculations. 	In no 	event 	shall 	overload pay calculations
include 	any 	students 	registered 	in excess 	of 	the unilaterally
increased maximum class 	sizes.
ORDER
Upon the 	foregoing 	facts, 	conclusions 	of 	law, 	and 	the entire
record 	in this 	case, 	and pursuant 	to 	Government 	Code 	section
3541.5(c), 	it 	is 	hereby ORDERED that 	the Rio Hondo Community
College District 	shall:
1. 	Pay overload 	pay 	to 	all 	District 	instructors 	who 	taught
Introduction 	to Accounting 	152 	or 	Principles 	of Accounting 	1A
and 	1B 	for 	Spring 	semester 	1979 	to 	Fall 	semester 	1981 	for 	every
student whose 	name 	appears 	on 	the 	permanent 	roll 	sheet 	for 	such
semester 	in 	excess 	of 	the maximum class 	size 	established 	by 	the
practice 	immediately before 	the 	1979 	Spring 	semester 	up 	to 	the
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unilaterally 	established 	maximum class 	size 	for 	that 	semester.
Such payment 	shall 	include 	interest 	at 	the 	rate of 	7 	percent.
6Many 	students 	appear 	on 	the 	temporary 	roll 	sheet 	who 	do
not 	attend 	class. 	Many other 	students 	are 	added during 	the
first 	few class 	sessions.
7At 	the 	compliance hearing, 	a District witness 	(Jenkins)
testified 	that 	occasionally 	additions 	were made 	to 	the
permanent 	roll 	sheets 	by 	instructors. 	(Compliance TR p. 	27.)
Where 	these 	handwritten 	additions 	occur, 	they 	should 	be 	added
to the calculations.
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2. 	Written notification of 	the 	actions 	taken 	to 	comply
with 	this 	Order 	shall 	be made 	to 	the 	regional 	director 	of 	the
Public 	Employment 	Relations 	Board 	in 	accordance with 	his
instructions.
This 	Order 	shall 	become 	effective 	immediately upon 	service
of 	a 	true 	copy 	thereof 	upon 	the Rio 	Hondo 	Community College
District.
Members 	Burt 	and 	Porter 	joined 	in 	this 	Decision.
to
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STATE OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
RIO HONDO FACULTY ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
RIO 	H O N D O 	C O M M U N I T Y 	COLLEGE
D I S T R I C T ,
R e s p o n d e n t .
Compliance
Case No. 	LA-C-64
[PERB Decision No. 	279(a)
(LA-CE-1157)]
PROPOSED 	DECISION
(4/15/85)
A p p e a r a n c e : 	Charles 	R. 	Gustafson, 	Attorney, 	for 	Rio H o n d o
Faculty Association, 	CTA/NEA; 	Patrick D. 	Sisneros, 	(Wagner,
Sisneros 	and W a g n e r ) , 	Attorney 	for 	the 	Rio 	Hondo 	Community
College 	D i s t r i c t .
B e f o r e ; 	Roger 	Smith, 	Hearing 	Officer.
PROCEDURAL 	H I S T O R Y
The 	underlying 	unfair 	labor 	p r a c t i c e 	charge, 	filed 	on
May 	27,1980 	alleged 	that 	the 	Rio 	H o n d o 	Community 	College
D i s t r i c t , 	(hereafter 	D i s t r i c t ) , 	unilaterally changed 	various
working 	conditions 	of 	employees 	in 	violation 	of 	Government 	C o d e
section 	3 5 4 3 . l ( a ) , 	(b) 	and 	( c ) . 	A complaint w a s 	issued by 	the
Public 	Employment 	Relations 	Board 	(hereafter 	PERB 	or 	Board) 	on
August 	26, 	1 9 8 0 . 	The 	Rio 	H o n d o Faculty Association CTA/NEA,
(hereafter 	A s s o c i a t i o n ) , 	filed 	an 	amendment 	to 	the 	unfair
p r a c t i c e 	charge 	on December 	1 8 , 	1 9 8 0 .
After 	settlement 	conferences 	failed 	to 	bring 	about 	an
agreement, 	a 	formal 	hearing 	was 	held 	on March 	3 0 , 	31 	and
This Board agent decision has been appealed to
the Board itself and is not final. Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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April 1, 	1981 before Administrative Law Judge Allen R. 	Link.
Both parties prepared and 	submitted briefs. 	Mr. 	Link's
proposed 	decision 	issued 	on April 	13, 	1982 and was 	excepted 	to
by the District.
PERB, 	thereafter 	reviewed 	the District's 	exceptions 	and
issued 	its Decision No. 	279 on December 	31, 	1982.
Subsequently, 	the District 	submitted a 	request 	for
reconsideration pursuant to PERB Regulation 	32410(a).1 The
basis 	for 	the 	request 	was 	that 	the District 	felt 	the 	Board had
erred by 	finding 	violations 	and 	that 	the 	remedy 	ordered was
inappropriate because 	the parties had 	reached 	a 	collective
bargaining 	agreement 	terminating 	the period 	for 	which 	the
District 	was 	required 	to make 	employees 	whole 	under 	the 	Board's
order. 	The Board denied 	the 	request 	for 	reconsideration of 	the
merits of 	its 	findings, 	but 	granted 	the 	request 	for 	revising
its order and issued Decision No. 	279a on May 16, 	1983, 	to add
that 	the 	make whole period 	could 	terminate 	if 	the parties 	reach
agreement or 	impasse 	"as 	to this 	issue." 	No petition for
judicial 	review of 	PERB Decision 279a was 	filed, 	thus the
decision became final on June 16, 	1983.2
To determine 	if 	the District had 	complied with the Board's
Order, 	a hearing was 	conducted on January 22, 1985.
1PERB's 	regulations 	may be 	found 	at 	California
Administrative Code, 	title 8, 	part III, 	section 31001, 	et seq.
2See Government Code 3542{b).
N2

On February 1, 	1985, 	supplemental 	evidence was presented by
the District. 	This 	evidence was 	admitted 	into the 	record on
February 22, 	1985, 	with no objection by the Association.
Post-hearing briefs 	were 	filed by both parties on March 	12,
1985. 	Reply briefs were filed on March 22, 	1985, 	and the
matter 	was 	submitted.
FACTS
The District 	informed Regional Director Frances A. 	Kreiling,
through correspondence 	in 1983 and 1984, 	that 	it had complied
with all 	affirmative 	obligations 	of 	the 	order 	except Paragraph
B.3 which reads as 	follows:
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.
Pay 	to all District 	instructors 	of
Introduction to Accounting 	and 	Principles 	of
Accounting A & B 	courses 	overload pay 	for
all 	students 	registered 	in excess 	of 	the
maximum class 	size prior 	to 	spring 	semester
1979, 	from the 	spring 	semester 	1979 to the
present or until 	the parties 	reach a
negotiated 	agreement 	or 	impasse 	as 	to this
issue, 	whichever is sooner. 	Such payment
shall 	include 7 percent per 	annum 	interest.
(Emphasis 	added.)
The 	parties 	stipulated 	that 	collective 	bargaining
agreements 	between 	the Association and 	the District 	in PERB's
files were accurate 	and 	complete. 	PERB 	files 	contain the
collective bargaining agreement dated June 10, 	1981, 	with an
W	
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effective date of June 11, 	1981 through June 30, 	1983; 	an
amended 	agreement dated October 	27, 	1982 	with effective dates
of October 28, 	1982 through June 30, 	1983; 	and their latest
agreement dated June 	13, 	1984 with effective dates of July 1,
1983 through June 30, 	1986.
Each of 	these 	agreements 	contains 	an 	identical Article 	8
entitled 	Class 	Size which 	limits 	class 	size maximums 	to 	"those
in effect as of February 1, 	1981, 	as 	recorded 	in the master
course data 	file." 	The maximums may be modified by 	the parties
in accordance with other provisions of 	the Article, 	but
modification under 	those provisions 	is 	not an 	issue 	in this
case.3 Testimony revealed 	that 	there 	were 	no 	side 	letters 	or
memoranda 	relating to the class 	size 	article.
3
The 	contract maximum class 	sizes 	as 	recorded 	in the 	master
course data file on February 	1, 	1981, 	were 40 for 	Introduction
to Accounting 	and 	45 	for 	Principles of Accounting A and B, 	an
increase 	of 	five 	students per 	class over 	the maximums 	in effect
before 	the 	spring 	semester of 	1979 when the District 	made 	the
first of 	the unilateral 	changes 	in class 	size maximums of which
it was 	found guilty by the Board 	in PERB Decision No. 	279. 	At
3Article 	8.A:
A. 	Unless 	modified 	in accordance with the
following provisions, 	class 	size 	limits for
the 	terms of this agreement 	shall be 	those
in effect as of February 1, 	1981, 	as
recorded 	in the master 	course 	data 	file.
A	4

that 	time 	in 	1979 	the 	maximum 	for 	Introduction 	to Accounting
was 	35 	students 	and 	40 	for Accounting 1A and 	1B. 	The 	following
semester, 	fall 	1979, 	the District 	increased unilaterally the
maximum 	size of 	each of 	those classes by an additional
5 	students. 	The maximum became 45 and 50, 	respectively, 	but
they were 	then cut back to 40 and 45, 	remaining 	5 	students
above 	the original, 	mutually accepted maximums.
Gilbert Acosta, 	association consultant, 	testified that no
class 	size grievances have been 	filed 	since 	the 	contract 	signed
by the parties on June 10, 	1981 became effective. 	No other
unfair practice 	charges 	alleging 	violations 	of 	EERA 	section
3543.5(a) 	or 	(c) 	have been filed against the District for
refusing 	or 	failing 	to negotiate 	regarding 	the 	subject 	of 	class
size. 	(Gilbert Acosta's testimony, 	Hearing Transcript p. 	78.)
Don Jenkins, 	Vice President of Academic Affairs 	and
Assistant 	Superintendent 	for 	the District, 	testified without
contradiction that 	the practice 	since well 	before 	spring
semester 	1979 has been that 	students 	enrolled 	in a class above
the 	class 	size 	maximum 	accepted 	by 	the District 	are 	admitted
only with permission of 	the class 	instructor. 	Therefore,
students 	enrolled 	above 	the 	class 	size 	maximums 	acknowledged 	by
the District are, 	in effect, 	admitted by the instructors and
not 	by the 	Registrar's 	office or management 	of 	the 	District.
Ms. 	Pacheco generally confirmed this testimony, 	stating that,
in her nearly ten years 	with the District, 	instructors have had
5

the option to over enroll 	students 	if 	they choose. 	She 	further
stated 	that 	the District did 	not discourage 	over 	enrollment.
Her general 	impression was 	that 	the District was very casual 	in
its treatment of class size requirements, 	(HT pp. 	62-65).4
Charging 	Party witnesses 	Pacheco 	and 	Acosta both 	recalled
that Bill Hamilton, 	the District's Chief 	negotiator, 	during
negotiation of 	the 	1981 	agreement, 	stated 	that 	there were 	two
processes 	at 	work 	— 	one 	involved 	collective 	bargaining 	and 	the
other 	the unfair practice 	litigation. 	(HT pp.. . 59-61;73-76.)
From 	that 	statement 	Pacheco and Acosta 	inferred District 	assent
that Article 8, 	class size, 	of 	the 1981 agreement, 	would have
no effect on any remedy later ordered 	in PERB Decision No. 	229.
ISSUES
1. 	Is Article 8A of 	the parties' 	June 10, 	1981 agreement
fixing class 	size maximums at 	the February 	1, 	1981 master
course 	data file 	levels, 	a negotiated 	agreement 	terminating 	the
District's duty under 	Paragraph B.3 	of 	the 	order 	in 	PERB
Decision No. 	279a to return class 	size maximums 	to 	the
4This 	practice has been contractual 	since 	September 	1,
1981, 	the effective date of Article 8 	in the agreement the
parties signed June 10, 	1981:
Established 	class 	limits 	may be 	exceeded 	for
a given section 	(5) 	upon recommendation of
the department 	chairperson with consent 	of
the 	instructor 	involved. 	(Article 	8: 	class
size, 	D.)
66

pre-1979 	spring 	semester 	levels 	and pay 	overload 	pay 	to
affected instructors after September 1, 	1981?555
2. 	During 	the 	Paragraph B.3 	liability period, 	must 	the
District pay 	instructors 	overload pay 	for 	all 	excess 	students
registered, 	including those 	admitted 	with 	instructor 	consent,
or only for 	those 	excess 	students 	admitted as 	a 	result 	of 	the
District's 	unilateral changes 	in class 	size 	maximums?
DISCUSSION
The Board 	shall have 	the power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party to cease 	and desist 	from the unfair
practice 	and 	to 	take 	such affirmative
action, 	including but 	not 	limited to the
reinstatement of 	employees with or. without
back pay, 	as will effectuate the policies of
this 	chapter.6
Pittsburg Unified 	School District 	PERB Decision No. 	318a
(4/2/84), 	provides insight into the Board's interpretation of
its own remedial powers. 	In Pittsburg, 	the Board reconsidered
its make-whole 	order 	and determined 	that 	a contract 	reached by
the parties 	subsequent 	to the 	filing 	of 	unfair practice charges
which alleged unilateral 	changes by the 	employer, 	would
terminate 	the 	remedial 	liability period. 	The 	rationale 	for
this decision can be 	found at p. 	5,
5Though 	the agreement was 	signed June 	10, 	1981 and became
effective generally on June 	11, 	the class 	size article, 	Article
8, 	contains a different effective date; 	September 1, 	1981.
6See Government Code Sec. 	3541.5(c).
77

Such an agreement 	would 	terminate both the
make-whole portion of 	the 	remedy and,
inasmuch as 	the parties have 	mutually 	agreed
to alter the status quo, 	that portion of 	the
remedy 	ordering 	restoration of 	the 	status
quo ante.
In 	footnote 	3 	found 	on page 	5 of 	the 	Pittsburg 	decision
(supra), 	the Board specifically addresses the arguments raised
by the Association 	in its brief 	in the 	instant 	case.
We 	disagree 	with 	the Association's 	argument
that 	under Rio Hondo, 	back pay 	should
terminate 	only when 	a 	subsequently
negotiated 	agreement 	specifically 	addresses
the conduct complained of 	in the unfair
practice 	charge 	itself. 	In order 	to
terminate 	liability for back pay, 	a
subsequently 	negotiated 	agreement 	need only
address 	the basic 	subject matter 	of 	the
unilateral change, 	and 	need not constitute a
"waiver" 	by the Association of 	its claim
that 	the District 	acted unlawfully.
(Emphasis 	added.)
In this case, 	the 	"basic 	subject matter" 	of 	class size
clearly was 	addressed 	in the parties' 	collective bargaining
agreement effective June 	11, 	1981 	and the 	two 	successor
agreements 	contain 	identical 	language.
Hence, 	even though the 	unfair practice charge was not
resolved 	specifically by the agreement effective June 	11, 	1981,
the 	status quo was 	altered 	and back pay 	terminated 	as 	of
September 1, 	1981, 	because the agreement addressed class 	size,
"the basic 	subject: matter of 	the unilateral change." 	Had 	the
Association reserved the 	right 	in the June 	11, 	1981 	agreement
to 	insist 	on restoration of 	the 	status quo ante or 	extra
8

teacher 	compensation 	for 	classes 	exceeding 	the pre-spring 	1979
size 	limits 	in the 	event 	of 	a 	favorable 	PERB 	ruling on Case
No. 	LA-CE-1157 	(PERB Decision No. 	279 and 279a), 	this case
might be distinguishable 	from Pittsburg, 	however, 	that was not
done.
The Association's 	argument 	that 	the parties have 	yet 	to
reach agreement on the 	subject 	of 	class 	size 	is unconvincing
particularly 	in 	light of 	the 	clear 	language of Pittsburg,
supra. 	The parties have 	lived under 	the terms 	of collective
bargaining 	agreements 	for 	nearly 	four years 	which contain an
article 	specifically dealing 	with class 	size. 	Therefore, 	the
contract 	that 	the Association 	and 	the 	District 	signed 	effective
June 10, 	1981 establishes the effective cut-off date for
liability 	as 	to any back pay 	claims 	and 	terminates 	the
District's obligation to restore the 	status quo ante.
As 	to 	the 	issue 	of 	the 	Board's 	intent 	in the 	order 	that 	the
District 	pay 	Principles 	of Accounting A and B 	and 	Introduction
to Accounting 	instructors 	for 	all 	students 	registered 	in 	excess
of 	the 	1979 maximum class 	size, 	the Association argues 	that the
District waived 	its 	right 	to challenge 	the Board's 	use 	of 	the
term 	"all" 	by not 	raising 	it 	in 	its motion for
reconsideration.
In Brawley Union High School District, 	PERB Decision
No. 	266a, 	(4/7/83), 	the Board held that an employer respondent
who had 	not 	raised 	a particular defense 	in 	its 	request 	for
9

reconsideration was precluded 	from 	raising 	the 	defense 	at 	a
compliance hearing.
The 	general 	and well-established 	rule 	is
that a 	right once waived 	is gone 	forever
(Jones v. Maria (1920) 	48 Cal. App. 	171 [191
p. 	943]) 	and may not be re-asserted, 	Hein
Estate 	(1939) 	32 Cal App. 	2d 438 	[90 p. 	2d
100]; Faye v. Feldman (1954) 	128 Cal. App.
2d 	319 [275 p 2d 121]. 	Consistent with this
rule, 	we 	found that 	the district waived 	its
right 	to the 	finding 	of 	violation. 	(See
p. 	6 Brawley Union High School District,
supra.)
As did 	the 	employee 	organization 	in Brawley, 	the
Association here 	argues 	that 	the District had 	ample 	opportunity
to contest 	the 	finding 	of 	the Board 	that 	instructors 	should 	be
paid for 	"all" 	excess 	students by raising the defense of
voluntary admission of 	some of 	the 	students 	in 	its 	original
request 	for 	reconsideration or before.
The word 	"all," 	however, 	is not 	the 	interpretational key to
the Order 	in Decision No. 	279a. 	The real issue is what the
Board meant by 	the phrase, 	"maximum 	class 	size prior 	to 	spring
semester 	1979," 	in Paragraph B.3. 	Did the Board mean the
maximum 	class 	sizes 	stated 	in the Master 	Course Data File
effective 	immediately before 	the 	1979 	spring 	semester 	or did
the Board 	intend 	that 	phrase 	to 	include reference 	to 	those
students 	admitted with instructor consent under 	the parties'
practice?
In 	its 	exceptions 	to 	the ALJ's proposed 	decision addressed
by the Board 	in PERB Decision No. 	279, 	the District argued that
10
•

master course 	data 	sheets 	reflect 	"official" 	policy and 	that
actual practice 	at 	variance 	with 	the data 	sheets 	should be
ignored. 	The 	Board 	rejected 	that 	superficial 	approach however,
agreeing 	with the Association 	that 	the 	actual 	should prevail
over 	the 	theoretical 	and 	finding 	unilateral 	increases 	in class
size by the District 	even 	though 	the 	increases 	were 	not
reflected 	in the master course data sheets. 	(Decision No. 	279,
pp. 	21-22.) 	Hence, 	the Board decided that 	"maximum class 	size"
is 	not 	necessarily 	determined 	by 	reference 	to master 	course
data sheets alone.
For many years 	it has been the practice of 	the parties to
allow 	excess 	students 	to 	register 	in classes 	with the consent
of 	the 	instructors 	and the 	instructors have 	not 	received
overload pay 	for 	those consensually admitted 	excess 	students.
Having 	considered 	actual 	practice 	in defining 	"maximum 	class
size" 	in the basic decision in this case, 	there is 	no reason to
assume 	"maximum 	class 	size" 	as 	used by the Board 	in Decision
No. 	279a was 	not 	intended to take 	into account practices of 	the
parties affecting actual, 	consensual, 	class 	size maximums
during 	the overload pay 	liability period. 	Applying 	this
definition, 	"maximum class 	size" 	includes the 	class maximum
stated 	in 	the master course data 	file and all 	other 	students
registered with instructor consent. 	Hence, 	the District's
overload 	pay 	liability during 	the period 	specified 	in
Paragraph B.3 	would 	be 	limited 	to payment 	for 	those 	students
11

who were 	registered 	in excess 	of 	the 	maximum class 	sizes 	stated
in 	the Master 	Course Data File 	effective 	immediately before 	the
1979 	spring 	semester 	and 	without 	instructor 	consent.
Requiring 	the District 	to compensate 	instructors 	for 	excess
students 	they had 	admitted 	to 	their 	classes 	voluntarily 	could
be 	viewed as 	a punitive 	rather 	than remedial measure 	since
instructors had 	never before been paid 	extra 	for 	excess
students 	they voluntarily admitted. 	As has been recognized
repeatedly by 	courts 	in 	interpreting 	remedial 	power provisions
in 	the Agricultural Labor Relations 	Act 	and National Labor
Relations Act 	similar to 	the 	remedial 	grant 	to PERB 	in 	section
3541.5(c), 	"[A] Board's discretion in ordering affirmative
action to 	remedy unfair 	labor practices 	is 	not 	unbounded. 	It
must 	be 	exercised 	reasonably by 	the 	Board whose power 	to
command affirmative 	action 	is 	remedial, 	not punitive. 	. . . "
(Sunnyside Nurseries, 	Inc. 	v. 	Agricultural Labor Relations Bd.
(1979) 	93 Cal.App. 	3d 922, 	940, 	quoting in part 	from Edison Co.
v. Labor Board (1938) 	305 U.S. 	197, 	236 83 L.Ed. 	126, 	143, 	59
S.Ct. 206.
Presumably 	in crafting 	its 	order, 	the Board was mindful of
the 	necessity of 	limiting 	its 	remedy to 	that 	necessary to
effectuate 	the purposes of 	the Act, 	as 	indicated 	in section
3541.5(c). 	See Ellis Landing & Dock Co. 	v. 	Richmond 	(1932)
70 Cal.App. 	720. 	In fact, 	the Board granted the District's
12

request 	for 	reconsideration to 	the 	extent 	of 	modifying 	its
order to 	include a 	negotiated agreement 	of 	the parties as 	a
means 	of 	terminating 	the 	overload 	pay 	liability pay 	period,
expressly to keep 	the 	remedy within the 	intentions 	of 	section
3541.5(c).
In Decision 279a 	(p. 	6 ) , 	the Board defines the 	intent of
the original Decision 	279 	remedial 	order:
The 	intent of 	the 	Board's 	order was to
remedy the District's 	refusal 	to 	negotiate
prior 	to 	taking 	unilateral 	action with
regard to the wages, 	hours, 	and working
conditions 	of bargaining 	unit members.
(P. 	6.)
The purposes of 	the Act are met 	and 	the 	remedy of 	the
District's violations 	in this case 	is complete when instructors
have 	been compensated 	for 	instructing 	students 	they 	were
required 	unlawfully to 	instruct.
Since 	this 	is 	a matter of 	interpreting 	the 	existing
language of 	the Board's Order 	in Decision No. 	279a and requires
neither 	reference 	to 	facts 	outside 	the 	record 	nor 	modification
of the Order, 	the Association's waiver argument 	fails.
CONCLUSION
Article 8.A of 	the parties' 	June 10, 	1981 agreement 	is a
negotiated 	agreement, 	within contemplation of 	Paragraph 	3.B 	of
the Board's Orde
• r 	in PERB Decision No. 	279a. 	It terminates the
District's 	overload 	pay 	liability period and alters 	the 	status
quo. 	The 	term 	"maximum class 	size" 	as 	used by the Board 	in
13

Paragraph B.3 	includes 	excess 	students 	registered 	with the
consent 	of 	instructors under 	the 	long 	standing practice between
the parties. 	Compliance by 	the 	District 	with Paragraph B.3
will be 	complete when 	instructors who taught 	Introduction 	to
Accounting 	and 	Principles 	of 	Accounting A and 	B 	courses 	from
the 	spring 	semester 	of 	1979 to 	the 	fall 	semester 	of 	1981 	are
appropriately 	compensated 	for 	each 	student 	who 	was 	registered
in one of 	those classes 	in excess 	of 	the maximum class 	size
specified 	for 	the 	course 	in the Master 	Course Data File
immediately before 	the 	1979 	spring 	semester 	without consent 	of
the 	course 	instructor. 	Such payment 	shall 	include 	interest 	at
the 	rate of 	seven percent.
PROPOSED 	ORDER
Pursuant to PERB Decision No. 	279(a) 	(Unfair Practice
Charge Case No. LA-CE-1157), Compliance Case No. LA-C-64, Rio
Hondo Faculty Association, 	CTA/NEA v. 	Rio Hondo Community
College District, 	the foregoing findings of fact, 	conclusions
of 	law and the 	entire 	record, 	it 	is 	the 	Proposed Order 	that 	the
Rio Hondo Community College District 	shall:
1. 	Pay overload pay 	to all District 	instructors 	who
taught 	Introduction to Accounting 	or 	Principles 	of Accounting A
and B 	from 	spring 	semester 	1979 	to 	fall 	semester 	1981 	for 	every
student 	registered during 	that period 	in 	excess 	of 	the maximum
class 	size 	stated 	in the Master 	Course Data File 	immediately
14

before 	the 	1979 	spring 	semester, 	without 	consent 	of 	the 	course
instructor. 	Such payment shall 	include interest at 	the 	rate of
7 percent.
2. 	Upon issuance of 	a final decision, 	make written
notification of 	the 	actions 	taken to comply with this Order to
the Los Angeles Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance 	with his/her 	instructions.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order shall
become final 	on May 	6, 	1985 unless 	a party 	files 	a timely
statement of 	exceptions. 	In accordance with the 	rules, 	the
statement 	of 	exceptions 	should 	identify by page 	citation 	or
exhibit 	number 	the portions 	of 	the 	record 	relied upon for 	such
exceptions. 	See California Administrative Code, 	title 8,
part 	III, 	section 32300. 	Such statement of 	exceptions and
supporting brief 	must be 	actually 	received 	by 	the 	Public
Employment Relations 	Board 	itself 	at 	the headquarters 	office 	in
Sacramento before 	the 	close 	of business 	(5:00 p.m.) on
May 6, 	1985, 	or 	sent by telegraph or certified United States
mail, 	postmarked 	not 	later than the 	last day 	for 	filing 	in
order to be timely filed. 	See 	California Administrative Code,
title 8, 	part III, 	section 32135.* 	Any statement of 	exceptions
and 	supporting brief must 	be 	served concurrently with 	its
filing 	upon each party 	to 	this proceeding. 	Proof 	of 	service
15

shall be 	filed with the Board 	itself. 	See California
Administrative Code, 	title 8, 	section 32300 and 	32305.
DATED: 	April 15, 	1985
Janet 	Caraway
Director 	of 	Representation
By Roger 	Smith
Hearing 	Officer
16