Marysville Joint Unified School District * * * OVERRULED IN PART by Culver City Employees Association v. City of Culver City (2020) PERB Decision No. 2731-M (PERB 0314E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
MARYSVILLE 	UNIFIED 	TEACHERS
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
MARYSVILLE 	JOINT 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	S-CE-133
PERB Decision No. 	314
May 27, 	1983
Appearances; 	Diane Ross, 	Attorney 	for 	the Marysville Unified
Teachers Association, 	CTA/NEA; 	W. 	Craig Biddle 	(Biddle, Walters
& Bukey), 	Attorney for 	the Marysville Joint Unified School
District.
Before Gluck, 	Chairperson; 	Jaeger 	and Burt, Members.
DECISION
This 	case 	is 	before 	the 	Public Employment Relations Board
(PERB) 	on exceptions 	filed 	by 	the Marysville Joint Unified
School District 	(District) 	to 	a hearing officer's proposed
decision finding 	that 	it violated subsections 	3543.5(a), 	(b)
and 	(c) 	of 	the Educational Employment Relations Act 	(EERA) 	by
unilaterally 	increasing 	teachers' 	hours 	of 	employment.1
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	references 	are 	to 	the Government Code 	unless
otherwise 	indicated. 	Section 3543 provides, 	in relevant part:
It 	shall be 	unlawful 	for 	a public school
employer 	to:
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* * * OVERRULED IN PART by Culver City Employees Association v. City of
Culver City (2020) PERB Decision No. 2731-M * * *

We 	have 	reviewed 	the 	hearing 	officer's 	proposed 	decision 	in
light of 	the 	entire 	record, 	and 	reverse his 	finding 	that 	the
District violated subsections 3543.5(a), 	(b) 	and 	(c).
Accordingly, 	the charge 	is dismissed.
(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.
FACTS
From 1970 	through 	the 	summer 	of 	1978, 	the District employed
classified 	employees 	to 	perform noontime 	supervision 	of
students. 	During 	that 	time, 	teachers 	had a duty-free 	lunch
period, 	which was conterminous with the 	students' 	50 	to
55-minute 	lunch period. 	Teachers did, 	however, 	perform yard
supervision 	duties 	before 	and 	after 	school, 	and 	during 	recess.
In 	1976, 	the District 	and 	the Marysville Unified Teachers
Association, 	CTA/NEA 	(Association) 	entered 	into a collective
bargaining 	agreement, 	which expired on June 30, 	1978. 	Section
8.4 	of 	that 	agreement provided, 	in 	relevant part:
Every 	certificated 	employee 	shall 	be
entitled 	to one 	duty-free 	lunch 	break 	of 	no
less 	than 	30 minutes 	each 	day.
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In April of 	1978, 	the parties began negotiations on a
successor 	agreement. 	The 	issue 	of 	noon 	duty 	supervision was
not 	addressed 	in 	the 	parties' 	negotiations 	between April 	1978
and June 	6, 	1978. 	On June 6, 	1978, 	the voters approved
Proposition 	13, 	which 	caused 	concern 	that 	an extreme 	budgetary
crisis was 	imminent.
On June 	14, 	1978, 	the District 	informed the Association
that 	it 	was 	considering 	taking 	action 	to 	freeze 	salaries 	and
increase 	class 	size. 	On June 	16, 	the parties met 	to discuss
the 	District's proposed 	emergency 	resolutions. 	Andre 	Douyon,
spokesperson 	for 	the Association, 	presented 	a proposal 	intended
to maintain class 	size 	at 	the 	existing 	level. 	That proposal
provided:
In order 	to maintain PTR, 	which 	is 	in the
best 	interest of our 	students, 	we, 	the
Marysville 	Unified 	Teachers 	Association,
hereby propose 	the 	following:
1. 	The 	Marysville Joint 	Unified 	School
District 	shall 	re-hire 	all 	recently 	released
temporary 	teachers.
Cost 	. . . . 	Approximately 	$180,000
2. 	Replace 	all 	retiring 	teachers.
Cost 	. . . . 	Already 	budgeted.
In order 	to 	fund 	the 	above 	the 	following
cost-avoidance 	proposals 	are made:
1. 	All 	conference monies 	shall 	be
eliminated.
Cost 	avoidance 	$100,000.
2. 	All bus 	drivers' 	overtime be eliminated.
Cost 	avoidance 	$34,000.
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3. 	All 	campus 	supervisors be eliminated.
Cost 	avoidance 	$29,500.
4. 	All 	noon-duty 	supervisors 	be 	eliminated.
Cost 	avoidance 	$44,155.
TOTAL COST AVOIDANCE 	. 	. $207,745.
As part 	of 	this 	proposal, 	teachers would 	assume 	noontime
supervision duties. 	It 	is 	unclear 	whether 	the parties 	ever
negotiated 	the June 	14 proposal. 	Heidi Williamson, 	the
District's chief 	negotiator 	at 	that 	time, testified that 	the
District 	took 	the 	proposal 	"under 	advisement."
On August 1, 	1978, 	the District 	adopted 	budget cuts,
pursuant 	to which 	it 	laid off 	all 	noon duty 	supervisors.
Although 	the 	record 	is 	unclear 	as 	to 	the exact date, 	sometime
between August 	1 and 	the 	start of 	school 	in September 	1978, 	the
District 	directed 	school principals 	to 	work 	out 	individual
plans 	by 	which 	teachers 	would 	be 	assigned 	to 	perform noontime
supervision 	duties previously performed 	by 	the 	laid-off
classified employees. 	In September, 	1978, 	teachers were
assigned 	noon 	supervision 	duties 	on a 	rotating 	basis 	at 	various
schools 	throughout 	the 	District.
The 	Association presented 	the 	testimony of 	a 	number 	of
teachers 	who 	indicated 	that 	their 	assignment 	to 	noontime
supervision 	duties 	from September 	1978 	onward 	decreased 	their
lunch period 	from 50 	to 	55 minutes 	to 	30 minutes and, 	in 	some
circumstances, 	to less 	than 30 minutes. 	Assistant
Superintendent 	Leonard 	Larson, 	who 	testified 	on 	behalf 	of 	the
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District, 	did 	not 	deny 	that 	teachers' 	lunch hours 	were 	reduced
to 	30 	minutes 	when 	they 	were 	assigned 	to 	noon 	yard 	supervision
duties. 	However, 	he 	testified 	that, 	when 	the proper procedures
were 	followed, 	teachers 	would 	receive 	no 	less 	than 	30 minutes
for 	lunch.
Meanwhile 	negotiations 	continued 	on 	the 	successor
agreement. 	On August 25, 	1978, 	the parties 	reached 	tentative
agreement on 	a 	contract provision 	relating 	to 	"hours 	of
employment." 	That provision 	stated:
8.1 	The 	workday 	for 	all 	employees 	shall
begin 	30 	minutes 	before 	the 	time 	at which
classes 	at 	the 	assigned 	school/schools 	are
to begin 	in 	the morning.
8.2 	The 	length 	of 	the 	day 	may 	vary 	at 	the
various schools, 	however, 	the workday for
employees 	in the 	unit 	shall 	not 	exceed 	8
hours per 	day 	including 	staff meetings, 	open
house, 	parent-teacher 	conferences or 	back 	to
school night.
8.3 	Every 	employee 	in 	the 	unit 	shall 	be
entitled 	to 	one 	duty-free 	lunch 	period 	of
thirty consecutive minutes 	each 	day 	and 	in
addition, 	the principal 	shall establish 	a
method 	of 	providing 	relief 	time 	for
employees 	during 	the 	work 	day.
The parties did not, 	however, 	reach 	final agreement as to
the 	issue of 	hours of employment 	at 	that 	time.
On October 	23, 	1978, 	the Association amended a previous
unfair 	practice 	charge 	to allege 	that 	the 	assignment of
teachers 	to 	perform 	noon 	supervision 	duties 	constituted 	an
unlawful 	unilateral 	change 	in 	their 	hours of employment.
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On November 	27, 	1978, 	the parties 	held an informal
settlement 	conference 	relating 	to 	the 	various 	unfair 	practice
charges, 	including 	the October, 	1978 amendment. 	The parties
agreed 	to a partial settlement, 	in which 	the District was 	to
assume 	the 	full 	cost of 	dependent 	insurance 	coverage 	and 	the
Association was 	to 	withdraw 	the 	charges 	it 	had 	filed 	concerning
the 	District's 	alleged 	unilateral 	change 	of 	insurance 	coverage
and 	class 	size. 	In addition, 	the parties 	agreed 	to hold 	the
charge 	in this case "in abeyance 	. 	. 	. 	while the parties
continue 	negotiations 	toward 	a 	contract".3
On November 	28, 	1978, 	the parties met 	to continue
negotiations on 	the 	successor 	agreement. 	At 	that 	time, 	the
Association proposed 	that all 	release 	periods 	be 	duty-free. 	No
agreement 	was 	reached 	on 	that 	date.
3The 	partial 	settlement 	agreement provided, 	in 	relevant
part:
Further 	litigation 	on 	the 	remaining 	portion
of 	charge S-CE-133, 	in both original 	and
amended 	forms, 	is 	to be placed 	in abeyance
by 	the Public Employment 	Relations Board
while 	the 	parties 	continue 	negotiations
toward 	a 	contract.
By 	this 	agreement 	neither 	party waives,
alters 	or 	limits 	its 	negotiation position on
any 	matter 	addressed 	in 	charge 	S-CE-133 	and
its amendment.
The 	subjects 	of dependent Blue 	Cross
insurance coverage, 	class size, 	substitute
teachers 	and 	teacher 	supervision 	of 	students
during 	lunch periods 	and 	recess 	remain
issues 	before 	the 	parties 	at 	the 	negotiating
table.
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At 	the January 17, 	1979 	negotiating 	session, 	the
Association 	proposed 	that 	noon 	and 	recess supervision would 	be
voluntary 	and 	that, 	when 	such 	assignments 	were 	accepted,
teachers 	would 	be 	entitled 	to 	an 	additional 	$10 	per 	hour 	for
the 	time worked. 	On January 	24, 	1979, 	the District countered
with 	a proposal 	requiring 	all 	supervision duties 	to 	be
completed 	within 	an employee's 	required 	work 	hours.
In March of 1979, 	the parties reached 	impasse. 	Thereafter,
the 	parties 	entered 	mediation 	and 	factfinding 	with 	noontime
supervision duties 	being 	one 	of 	the 	issues. 	The 	factfinding
report did 	not 	address 	the 	issue of 	noontime 	supervision.
After 	factfinding, 	the 	parties 	continued 	to negotiate 	the
subject of 	noon 	supervision 	and 	hours of 	employment.
On September 	18, 	1979, 	the parties agreed 	to a new
three-year 	contract, 	retroactive 	to July 	1, 	1979 	and effective
through June 30, 	1982.
The 	agreement 	contains 	a provision 	relating 	to 	lunch
periods 	which 	is 	identical 	to 	that 	contained 	in 	the previous
agreement.
DISCUSSION
The 	hearing officer 	found 	that 	the 	District's 	decrease 	in
the 	teacher 	duty-free 	lunch 	period 	constituted 	an 	unlawful
unilateral change of 	hours 	and, 	as such, 	violated 	its duty 	to
negotiate 	in 	good 	faith. 	Pajaro Valley Unified 	School District
(5/22/78) 	PERB Decision No. 	51; 	NLRB v. Katz 	(1962) 	369 U.S.
736 	[50 LRRM 2177] .
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The 	District excepts 	to 	the 	hearing officer's 	finding 	that
the 	reduction 	of 	teachers' 	duty-free 	lunch 	period 	constituted
an unlawful 	unilateral 	change. 	It 	argues 	that 	the 	1976-1978
collective 	agreement 	established 	a minimum 	30-minute 	teacher
lunch period, 	and 	that 	the District's 	reduction of 	teacher
lunch periods 	to 	30 minutes was permitted 	by 	the 	terms of 	that
agreement.
The 	hearing 	officer 	found 	that, 	since 	the 	1976-1978
agreement 	entitled 	teachers 	to 	"one 	duty 	free 	lunch 	break 	of 	no
less 	than 	30 minutes 	each 	day," 	it merely established 	a minimum
lunch period. 	The contract was, 	therefore, 	silent as 	to the
maximum duty-free 	lunch 	period 	to 	which 	teachers 	were
entitled. 	He 	thus 	turned 	to past practice 	to ascertain 	the
nature 	of established policy 	in 	the 	District. 	He 	found 	that
from 1970 	through 	1978, 	the 	consistent practice 	in 	the District
had 	been 	to 	grant 	teachers 	a duty-free 	lunch 	break 	equivalent
to 	the 	55-minute 	lunch break 	enjoyed 	by 	students. 	He 	concluded
that 	the 	unilateral assignment 	of 	teachers 	to 	noon 	supervision
duties, 	and 	the 	resulting 	decrease 	in 	the 	length of 	their
duty-free 	lunch 	period, 	increased 	their 	overall 	hours 	of
employment.
An employer 	violates 	its 	duty 	to 	negotiate 	in good 	faith
when 	it 	unilaterally 	changes 	an 	established policy 	affecting 	a
negotiable 	subject 	matter 	without 	affording 	the 	exclusive
representative 	a 	reasonable 	opportunity 	to 	bargain. 	Grant
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Joint 	Union High 	School District 	(2/26/82) 	PERB 	Decision
No. 	196; 	Pajaro Valley Unified School District, 	supra; 	NLRB v.
Katz, 	supra. 	Established policy may be 	embodied 	in 	the 	terms
of 	a 	collective 	agreement 	(Grant Joint 	Union High School
District, 	supra.) 	or, 	where a contract 	is silent or ambiguous
as 	to a policy, 	it 	may be ascertained 	by 	examining 	past
practice 	or 	bargaining history. 	(Rio Hondo Community College
District 	(12/31/82) 	PERB Decision No. 	279; 	Pajaro Valley
Unified School District, 	supra.) 	However, 	where contractual
language 	is 	clear 	and 	unambiguous, 	it 	is 	unnecessary 	to go
beyond 	the plain language of 	the 	contract 	itself 	to ascertain
its meaning.
Contrary 	to 	the 	hearing 	officer's 	determination, 	we 	find
the 	lunch break provision of 	the 	1976-1978 	agreement 	to be
clear 	and 	unambiguous on 	its 	face. 	That provision guaranteed
employees 	a 	duty-free 	lunch period of 	no 	less 	than 	30 	minutes
each 	day. 	There 	is 	nothing 	in 	the 	provision which prevents
management 	from granting 	teachers 	a 	lunch period 	in 	excess 	of
30 minutes; 	nor 	conversely, 	does 	the provision prohibit
management 	from assigning 	teachers 	to a 	lunch period of 	just 	30
minutes 	in 	length. 	Consistent with 	that provision, 	the
District 	had, 	in 	the past, 	permitted 	teachers 	to take a 	lunch
break which 	exceeded 	30 minutes 	in 	length. 	In 	the 	fall of
1978, 	the District 	assigned 	teachers 	to 	noon yard 	supervision
duties 	on 	a 	rotating 	basis. 	On 	the 	days 	that 	they were
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assigned 	to 	those duties, 	teachers' 	lunch periods were
shortened 	to 30 minutes 	in length. 	Therefore, 	there 	is no
basis 	on which 	we 	can conclude 	that management 	acted 	in 	a
manner 	inconsistent with 	its 	contractual obligations.
The 	hearing officer's 	finding 	that 	the 	plain meaning 	of 	the
contract was 	superseded 	by 	the parties' 	past practice 	is 	based
on 	an 	inference 	unsupported 	by 	the 	record. 	The Association
introduced 	no 	evidence 	concerning 	the 	history 	of 	negotiations
which 	led 	up 	to 	the 	adoption of 	the 	1976-1978 	agreement.
Absent 	any 	evidence 	of 	bargaining 	history, 	we 	cannot 	infer 	that
the 	parties 	intended 	to 	attach 	a meaning 	to 	the 	hours provision
of 	their 	agreement 	contrary 	to 	its 	plain meaning. 	Moreover,
the 	Association's 	argument 	that 	the 	1976-1978 	agreement merely
formalized 	the 	preexisting 	practice 	of 	granting 	teachers 	a
55-minute 	lunch 	is 	undercut 	by 	the 	very 	fact 	that 	it 	agreed 	to
a contract 	provision 	establishing 	a 	lunch 	period 	of 	a 	lesser
duration. 	The mere 	fact 	that 	an employer 	has 	not 	chosen 	to
enforce 	its 	contractual rights 	in 	the 	past 	does 	not mean 	that,
ipso facto, 	it 	is 	forever precluded 	from doing 	so. 	Rio Hondo
Community College District, 	supra. 	Accordingly, 	we 	find 	that
the Association, 	by 	agreeing 	to a 	contractual provision which
plainly 	permitted 	the 	District 	to grant 	teachers 	a 	lunch period
of 	30 minutes 	or 	longer 	at 	its discretion, 	waived 	its 	right 	to
negotiate 	over 	the District's 	reduction of 	the 	lunch period 	to
30 minutes.
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ORDER
Upon 	the 	foregoing 	decision, 	and 	the 	entire 	record 	in 	this
matter, 	it 	is 	hereby ORDERED 	that 	the 	unfair practice charge 	in
Case No. 	LA-CE-133 	is 	hereby DISMISSED.
By 	the BOARD
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