Palo Verde Unified School District (PERB 0354E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
PALO VERDE TEACHERS ASSOCIATION,
Charging 	Party,
v.
PALO VERDE UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-1527
PERB 	Decision 	No. 	354
October 28, 	1983
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Appearances: Ch	~EE~~rances: 	arles R. Gustafson, Attorney for Palo Verde
Teachers Association; Ronald C. Ruud (Atkinson, Andelson, Loya,
Rudd and Romo) , Attorney for Palo Verde Unified School District.
Before Gluck, Chairperson; Morgenstern and Burt, Members.
DECISION
BURT, Member : 	This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the Palo
Verde Teachers Association (Association) to the proposed
decision of the Administrative Law Judge (ALJ) and a response
to those exceptions filed by the Palo Verde Unified School
District (District) . The ALJ dismissed charges filed by the
Association alleging that the District violated subsections
3543.5 (a) , (b) , and (c) of the Educational Employment Relations
Act (EERA) l by unilaterally switching the date of a te
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Charles 	R. 	Gustafson, 	Attorney 	for 	Palo Verde
Teachers 	Association; 	Ronald 	C. 	Ruud 	{Atkinson, 	Andelson, 	Loya,
Rudd 	and 	Romo), 	Attorney 	for 	Palo Verde 	Unified 	School 	District.
Before 	Gluck, 	Chairperson7 	Morgenstern 	and 	Burt, 	Members.
DECISION
BURT, 	Member: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed 	by 	the 	Palo
Verde 	Teachers 	Association 	(Association} 	to 	the 	proposed
decision 	of 	the 	Administrative 	Law 	Judge 	(ALJ) 	and 	a 	response
to 	those 	exceptions 	filed 	by 	the 	Palo Verde 	Unified 	School
District 	{District). 	The 	ALJ dismissed 	charges 	filed 	by 	the
Association 	alleging 	that 	the 	District 	violated 	subsections
3543.S(a), 	(b), 	and 	(c) 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA)1 by 	unilaterally 	switching 	the 	date acher teacher
1 EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	noted.
_of 	a

catch-up 	day 	in 	response 	to 	the 	legislative 	enactment 	of Martin
Luther King, Jr. 	(MLK) 	Day.
The 	ALJ 	found 	that 	no 	unilateral 	change 	had 	occurred
because 	the 	District 	had 	altered 	only 	the 	duties 	of 	teachers 	on
the 	two days, 	without affecting matters 	within 	the 	scope of
representation, 	i.e., 	wages, 	hours, 	etc.2
The 	Association excepts, 	alleging 	that 	the 	switch 	in 	days
was 	an 	unlawful 	unilateral change 	in violation 	of 	the 	agreement
of 	the parties, 	and 	alleging 	as 	well 	a violation because of 	the
District's 	refusal 	to 	negotiate 	about 	the 	consequences 	of
legislation 	establishing 	MLK 	Day 	as 	a 	holiday. 	The 	District
defends 	the ALJ's 	decision, 	reiterating 	that 	there 	was 	no
change 	of matters 	within 	scope, 	and 	additionally 	alleging 	that
2Subsection 	3543.2(a) 	states 	in pertinent part:
(a) 	The 	scope of 	representation 	shall be
limited 	to matters 	relating 	to wages, 	hours
of employment, 	and other 	terms 	and
conditions 	of employment. 	"Terms 	and
conditions of employment" mean health 	and
welfare 	benefits 	as 	defined 	by 	Section
53200, 	leave, 	transfer 	and 	reassignment
policies, 	safety conditions of employment,
class 	size, 	procedures 	to be used 	for 	the
evaluation of employees, 	organizational
security 	pursuant 	to 	Section 	3546,
procedures 	for 	processing 	grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	and 	the 	layoff of probationary
certificated 	school 	district 	employees,
pursuant 	to 	Section 	44959.5 	of 	the 	Education
Code. . . .
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the 	Association 	waived 	any 	right 	to 	negotiate 	by 	its 	failure 	to
submit 	a proposal.
We 	have 	reviewed 	the 	record 	as 	a whole 	in 	light 	of 	the
exceptions 	filed 	by 	the 	Association 	and 	the 	District's 	response
thereto. 	For 	the 	reasons 	set 	forth 	below, 	we 	affirm the 	result
reached 	by 	the 	the ALJ.
FACTS
We 	find 	the 	ALJ's 	findings 	of 	fact 	to 	be 	complete 	and 	free
from prejudicial 	error. 	We 	therefore 	adopt 	them as 	those 	of
the 	Board.
In June of 	1981, 	the Association and 	the 	District 	agreed 	in
contract 	negotiations 	to 	an 	hours 	article 	in 	the 	contract
referencing 	a calendar 	for 	the 	school year 	which 	reflected 	the
parties' 	agreement 	about 	days of 	work 	and 	holidays 	for 	the
1981-82 	school year. 	That 	calendar 	reflected 	that 	Friday,
January 15, 	1982, 	was 	to be 	the 	last day of 	the 	fall semester.
The 	following Monday, 	January 18, 	was 	to be a teacher
catch-up 	day 	on 	which 	teachers 	could 	complete 	their 	records 	for
the 	fall 	semester 	before 	beginning 	the 	spring 	semester 	on
January 	19. 	Students 	were 	not 	to be present on January 	18, 	but
teachers 	were 	expected 	at 	school on 	that 	day.
Subsequent 	to the parties' 	agreement, 	the Legislature
enacted 	legislation establishing Friday, 	January 15, 	1982, 	as
MLK 	Day. 	The 	Association 	claims 	that 	the 	holiday 	was 	for
W	
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certificated 	personnel 	as 	well 	as 	for 	students. 	The District
claims 	that 	the 	holiday was 	to 	be 	for 	students 	only.
In October 	1981, 	the president of 	the Association and 	the
superintendent 	spoke 	informally 	several 	times 	about 	the
necessity 	to 	"do 	something 	about" 	the 	upcoming 	holiday. 	The
superintendent 	suggested 	that 	the 	District 	could 	simply
designate January 	15 as 	the 	catch-up day for 	teachers, 	and 	a
holiday 	for 	students, 	with 	the 	semester 	to begin on January 	18,
which 	would 	be 	a 	normal 	student 	day. 	The 	Association president
did 	not 	oppose 	this 	suggestion, 	but 	maintained 	merely 	that 	the
matter 	should 	be 	negotiated. 	However, 	negotiations 	never 	took
place.
On December 	1, 	1982, 	the 	school board 	unilaterally changed
the 	calendar 	to provide 	that 	January 	15 would 	be 	a 	holiday 	for
students 	and 	a catch-up day 	for 	teachers. 	January 	18 would 	be
the 	beginning 	of 	the 	new 	semester 	and 	a 	normal day. 	The 	effect
of 	the 	change 	was 	to 	switch 	the 	teachers' 	catch-up day 	from
Monday 	to 	the 	previous 	Friday, 	and 	to 	establish 	a 	normal
student 	day 	on Monday 	rather 	than 	Friday. 	The 	total 	hours
required of 	teachers 	were 	not 	affected, 	nor 	were 	the 	teachers'
duties 	altered 	except 	to 	switch 	them between 	the 	two days.
(There 	was 	some 	testimony 	from 	the 	Association 	president 	that
he 	had 	heard 	that 	teachers 	at 	one 	school were 	required 	to do
in-service 	on 	the 	holiday, 	and 	thereby 	lost 	their 	catch-up
time. 	The 	ALJ dismissed 	this 	evidence 	as 	unsupported 	hearsay,
and 	the 	Association does 	not 	except.)
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-------DISCUSSION
The 	Association 	claims 	that 	the 	District 	violated 	EERA by
its 	refusal 	to 	negotiate 	the 	observance 	of MLK 	Day.
As 	the Association urges, 	PERB has 	in 	the past 	found 	that
holidays 	are 	within 	the 	scope 	of 	representation 	under 	EERA.
School District (7/16/79) 	PERB 	Decision 	No. 	96. 	Here, 	however,
the 	parties 	were 	signatory 	to a 	negotiated 	agreement 	providing
that 	the 	working 	year 	would 	include 	180 working 	days, 	including
the 	agreed-upon 	holidays 	as 	set 	forth 	in 	the 	calendar 	attached
to 	the 	agreement. 	The 	language 	of 	the 	contract 	is 	clear 	and
unambiguous 	and, 	consequently, 	the District was 	entitled 	to
refuse 	to 	re-negotiate 	the 	holiday 	issue. 	South San Francisco
Unified School District (9/2/83) 	PERB 	Decision 	No. 	343.
The 	Association 	suggests 	that 	the 	ambiguous 	action 	of 	the
Legislature 	altered 	the 	status quo 	so 	as 	to 	require
re-negotiation of holidays, 	but we 	cannot 	find 	that 	the
District 	was 	obligated 	to 	negotiate 	with 	the 	Association 	about
the 	meaning of Legislature's 	action. 	If 	the Association wished
to 	establish 	that 	the 	Legislature 	had 	intended 	another 	paid
holiday 	for 	certificated 	personnel, 	it 	could 	have 	done 	so
through 	judicial 	action. 	Otherwise 	it 	was 	bound 	by 	the
contractual bargain 	it made.
The 	Association 	also 	claims 	that 	the 	District made 	an
unlawful 	unilateral 	change 	by 	switching 	the 	catch-up 	day 	(not 	a
holiday) 	from Monday 	to 	the 	preceding 	Friday. 	The ALJ 	rejected

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that 	argument, 	citing 	the Board's 	decision 	in San Jose
Community 	College District 	(9/30/82) 	PERB Decision No. 	240. 	In
that 	case 	the 	Board 	found 	no 	unlawful 	unilateral 	change 	when
the 	District 	substituted 	15 	student 	days 	for 	an 	equal 	number 	of
in-service 	days, 	with 	no demonstrated 	impact on matters within
scope. 	Similarly 	in 	this 	case, 	the 	effect of 	the 	change 	of 	the
teacher 	catch-up day 	was 	simply 	to 	switch 	duties 	on 	a
consecutive 	Friday 	and 	Monday, 	without 	affecting 	teachers'
wages or 	hours. 	There 	is 	no 	indication 	that 	the 	action 	by 	the
District 	required 	teachers 	to work more 	days or 	longer 	days, 	or
that 	it 	increased 	the 	number 	of working 	days 	per 	year, 	or 	the
amount 	of preparation 	time 	required.
The Association 	claims 	that 	in 	negotiations 	it 	had
bargained 	for 	the 	catch-up 	day 	on January 	18 	instead 	of
January 	15 because 	it was 	a 	"better 	day", 	thus 	implying 	some
impact on 	teachers other 	than 	a change 	in duties. 	There 	is 	no
support 	for 	this 	conclusion 	in 	the 	record.
Since 	it 	has 	not 	been 	shown 	that 	the 	switch 	in days
affected 	negotiable matters, 	we 	agree 	with 	the ALJ 	that 	there
was 	no 	unlawful 	unilateral 	change.1
3 It 	would 	appear 	that 	the 	switch 	of 	the 	date 	of 	the
teacher 	catch-up day 	is 	a 	violation of 	the 	negotiated 	agreement
between 	the parties 	and, 	in 	some cases, 	such 	a breach may
constitute 	a 	violation 	of 	EERA. Grant Joint Union High School
District (2/26/82) 	PERB Decision No. 	196. 	However, 	as 	a
threshold 	matter, 	the 	charging 	party must 	show 	that 	the 	alleged
change 	concerned 	a matter 	within 	the 	scope 	of 	representation.
Grant 	supra; 	Allied 	Chemical 	Workers 	v. 	Pittsburgh 	Plate 	Glass
Co,;. (1971) 404 U.S. 157.
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The 	Association 	relies 	on San Mateo 	County 	Community
College District (6/8/79) PERB Decision No. 94, and San Francisco Community College D
No. 	105, 	to 	the 	effect 	that 	an employer 	may not make 	unilateral
changes 	without 	bargaining 	just 	because 	the 	effect of
legislation 	is unclear 	(in those 	cases, 	Proposition 13). 	Those
cases 	are 	clearly distinguishable 	from 	this, 	since 	in 	San Mateo
and San Francisco, 	supra, 	the 	districts made massive 	unilateral
changes 	in 	response 	to their 	fears 	about 	the 	impact of
Proposition 13. 	Here, 	as 	found 	above, 	there was no
demonstrated 	change 	of matters 	within 	scope.
ORDER
Based 	on 	the 	foregoing discussion, 	conclusions 	of 	law and
the 	entire 	record 	in 	this matter, 	the 	unfair 	practice 	charge
filed 	by 	the 	Palo Verde 	Teachers 	Association 	against 	the 	Palo
Verde 	Unified 	School 	District 	is 	hereby 	DISMISSED.
Chairperson 	Gluck 	and 	Member 	Morgenstern 	joined 	in 	this
Decision.
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