San Mateo City School District (PERB 0375EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
HEALDSBURG 	UNION 	HIGH 	SCHOOL
DISTRICT 	and 	HEALDSBURG 	UNION
SCHOOL 	DISTRICT,
Respondent.
SAN MATEO 	ELEMENTARY 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
SAN MATEO CITY 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-36
Request 	for 	Reconsideration
PERB Decision No. 	375
PERB Decision No. 	375a
June 20, 	1984
Appearances; 	Kirsten L. 	Zerger, 	Attorney for San Mateo
Elementary Teachers Association, 	CTA/NEA; 	Penn Foote, Attorney
(Brown & Conradi) 	for San Mateo City School District;
M. Mari Merchat, Attorney 	(Kronick, Moskowitz, Tiedemann &
Girard) 	for 	the California School Boards Association, 	as Amicus
Curiae.
Before Hesse, Chairperson; 	Tovar, Jaeger, Morgenstern and Burt,
Members.
DECISION
The Public Employment Relations Board 	(PERB or Board),
having 	duly 	considered 	the 	San 	Mateo 	City School 	District's
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(District) 	request 	for 	reconsideration,1 hereby 	grants 	that
request 	consistent 	with 	the 	discussion 	below.
DISCUSSION
In 	the 	underlying Decision, 	the Board 	found 	that 	the
District violated subsections 3543.5(a), 	(b), 	and 	(c) 	of the
Educational Employment Relations Act 	(Act) 	by unilaterally
reducing 	teachers' 	preparation 	time 	and 	increasing 	the 	length
of 	their 	instructional 	day. 	The Board 	ordered 	a 	restoration of
the 	status quo 	ante 	and 	required 	the 	District 	to negotiate,
upon 	request, 	with 	the 	San Mateo Elementary Teachers
Association, 	CTA/NEA 	(Association) 	concerning 	preparation 	time
and 	the 	length of 	the 	instructional day. 	The Board's Order 	did
not 	indicate 	the 	significance, 	if 	any, 	of a negotiated
agreement 	reached 	subsequent 	to 	the 	unilateral 	change.
The 	District asserts 	that, 	subsequent 	to the 	issuance 	of
the 	hearing 	officer's proposed 	decision 	in 	the 	original 	unfair
practice 	proceeding, 	the 	parties 	twice 	negotiated 	and 	reached
agreement 	concerning 	the 	subject matter 	of 	the 	unilateral
change. 	The 	District cites 	a declaration 	to this 	effect 	signed
by 	its 	negotiator, 	Rajendra Prasad. 	The District urges 	the
Board 	to grant 	reconsideration 	of 	the 	remedy 	so 	as 	to excuse
restoration of 	the 	status quo ante 	in 	light of 	these
subsequently 	negotiated 	agreements.
1See 	PERB 	rule 	32410. 	PERB 	rules 	are 	codified 	at
California Administrative Code, 	title 8, 	section 31001 et 	seq.
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The 	Association 	denies 	that 	the 	District's 	liability 	should
be 	terminated 	at 	the 	point 	at 	which 	the 	parties 	reached 	a
negotiated 	agreement 	or 	that 	these 	agreements 	settled 	the
parties' 	dispute. 	It supplies 	its 	negotiator's declaration 	in
opposition 	to 	that 	furnished 	by 	the 	District.
Subsection 	3541.5(c) 	of 	the 	Act 	empowers 	the Board 	"to
issue 	. 	. 	. 	[an] 	order directing an offending party to 	. . .
take 	such 	affirmative 	action 	. . . 	as 	will 	effectuate 	the
policies of 	[the Act]." 	The Board 	has previously 	found 	that,
where 	a 	remedy will 	not 	effectuate 	the 	purposes 	of 	the Act,
reconsideration 	is 	justified. 	Pittsburg 	Unified 	School
District 	(4/2/84) 	PERB Decision No. 	318a; 	Rio Hondo Community
College District 	(5/16/83) 	PERB Decision No. 	279a.
In Pittsburg Unified School District, 	supra, 	and Rio Hondo
Community College District, 	supra, 	the Board granted
reconsideration 	in order 	to clarify 	the Order 	so 	as 	to
terminate 	liability 	at 	the point 	the 	parties 	subsequently
reached 	agreement 	concerning 	the 	subject matter 	of 	the
unilateral change. 	Both cases 	involved 	situations, 	as 	in 	this
case, 	where 	an employer 	had 	violated 	its 	duty not 	to make
unilateral 	changes 	until 	it 	had 	afforded 	an exclusive
representative 	notice 	and 	an 	opportunity 	to 	negotiate.2 In
2Pittsburg 	Unified School District, 	supra, 	involved 	an
employer's 	failure 	to maintain 	neutrality 	in 	the 	face 	of 	a
pending question concerning 	representation 	(QCR). 	However, 	the
Board 	found 	that 	the 	policy 	underlying 	its 	decision 	to clarify
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both 	cases, 	the Board concluded 	that 	if, 	subsequent 	to 	the
employer's 	unlawful conduct, 	the 	parties 	reached 	agreement
concerning 	the 	subject matter 	of 	the 	unilateral change, 	it
would 	not 	effectuate 	the 	purposes 	of 	the Act 	to extend 	the
terms 	of 	the 	remedy beyond 	that point.
the 	order 	was 	the 	same 	in 	the 	QCR context as 	in a case
involving 	an employer's 	violation of 	its 	duty 	to 	negotiate 	in
good 	faith.
Consistent 	with 	the Board's 	position 	in Rio Hondo Community
College District, 	supra, 	and Pittsburg Unified School District,
supra, 	we 	grant 	reconsideration of 	the Board's 	remedy 	for 	the
purpose of clarifying 	the Order. 	Accordingly, 	we 	shall order
the 	District 	to 	restore 	the 	status quo 	ante 	from 	the 	date 	of
the 	unilateral 	change 	until 	such 	time 	as 	the parties 	reach
agreement 	or 	negotiate 	through 	completion 	of 	the 	statutory
impasse 	procedure 	concerning 	the 	subject matter 	of 	the 	unlawful
unilateral change. 	However, 	the 	status quo ante shall not be
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restored 	if, 	subsequent 	to 	the District's 	actions, 	the parties
have, 	on 	their 	own 	initiative, 	reached 	agreement or 	negotiated
through 	completion of 	the 	impasse 	procedure 	concerning 	the
subject 	matter 	of 	the 	unilateral 	change.3
3AS 	the Board 	noted 	in Pittsburg 	Unified 	School District,
supra1 , 	the determination of whether, 	as a factual matter, 	the
District has complied with 	the Board's Order, 	in whole or 	in
part, 	is properly 	raised 	in a compliance hearing, 	should one 	be
required.
We 	disagree 	with 	the 	position 	espoused 	in 	the 	concurring
opinion 	that 	the Board 	should 	take 	administrative 	notice 	of 	the
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subsequent 	agreements 	of 	the 	parties 	to determine 	whether 	the
District 	has 	complied with 	the Board's Order. 	In our 	view,
disagreements 	as 	to whether 	such 	subsequent 	agreements
constitute 	compliance with 	the Board's 	Order 	are 	best 	left 	to a
compliance 	hearing, 	where 	the 	parties may present 	their
possibly differing 	interpretations 	of 	those 	agreements 	in
circumstances 	which 	afford 	them 	full 	due 	process 	rights.
Otherwise, 	the Board 	is 	left 	to resolve 	factual disputes
between 	the 	parties 	concerning 	the 	interpretation 	of 	subsequent
agreements 	based 	upon declarations 	neither 	part 	of 	the 	original
case 	record 	nor 	subject 	to 	the 	rigors 	of cross-examination.
Moreover, 	if 	such 	a determination were 	to be made 	routinely 	by
the Board, 	we would 	be 	entertaining 	requests 	for
reconsideration 	in 	virtually 	every 	case 	where 	a 	party 	asserted
that 	it 	had 	complied with 	the Board's Order. 	Such 	is 	not 	the
purpose 	of 	reconsideration 	requests.
In addition, 	we note 	that, 	in 	the Order 	accompanying 	the
underlying Decision, 	we 	failed 	to 	require 	the District 	to make
employees 	whole 	for 	the 	increase 	in 	hours 	which 	resulted 	from
the 	District's 	unilateral 	elimination 	of preparation 	time 	and
its 	requirement 	that 	employees 	perform 	those 	preparation 	time
duties 	outside 	of 	the 	normal 	work 	day.4 We 	find 	this
omission 	to have 	been an 	error 	and, 	therefore, 	pursuant 	to our
authority to 	fashion 	appropriate 	remedies, 	we 	shall amend 	the
Order 	to 	require 	the 	District 	to make 	employees 	whole 	for 	the
loss 	of preparation 	time. 	Fresno Unified 	School District
(4/30/82) 	PERB Decision No. 	208. 	The back pay portion of 	the
4The 	record 	reflects, 	and 	the 	District does 	not 	deny,
that, 	at 	certain schools, 	the District unilaterally 	substituted
instructional 	time 	for 	time which 	had 	previously been allotted
for 	teacher preparation 	time. 	Moreover, 	the District
instructed 	teachers 	that 	if 	they were 	unable 	to complete 	the
necessary preparation 	for 	classroom work 	during 	the
instructional day, 	it was 	expected 	that 	teachers 	would 	use 	time
outside 	of 	the 	regular 	work 	day 	to prepare.
Ut	
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remedy 	shall 	run 	from 	the 	date of 	the 	District's 	unlawful
conduct 	to 	the 	point 	at which 	the 	parties 	reach 	agreement 	or
negotiate 	through 	completion of 	the 	statutory 	impasse 	procedure
pursuant 	to our 	bargaining order. 	However, 	if 	subsequent 	to
the District's unlawful 	actions, 	the parties have, 	on their own
initiative, 	reached 	agreement 	or 	negotiated 	through 	completion
of 	the 	statutory 	impasse 	procedure 	concerning 	the 	subject
matter 	of 	the 	unilateral change, 	liability for 	back 	pay 	shall
terminate at 	that point. 	Thus, 	the wronged employees will be
made 	financially whole 	for 	their 	losses 	from 	the 	time 	the
District made 	the 	unlawful 	unilateral 	change 	until 	the 	parties
bargained 	in 	good 	faith.
ORDER
The 	Order 	in San Mateo Elementary Teachers Association,
CTA/NEA v. 	San Mateo City School District, 	Case No. 	SF-CE-36,
is AMENDED to 	read 	as 	follows:
Upon 	the foregoing findings of fact, 	conclusions of law, 	and
the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to Government Code
subsection 3531.5(c), 	it 	is hereby ORDERED that 	the San Mateo
City School District 	and 	its 	representatives 	shall:
A: 	CEASE AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	San Mateo Elementary Teachers Association,
CTA/NEA, 	with 	respect 	to 	teacher 	preparation 	time 	and 	length 	of
the 	teacher's 	instructional day;
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(2) 	Interfering 	with 	the 	rights 	of employees 	to be
represented 	by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	in
good 	faith;
(3) 	Denying 	the 	San Mateo Elementary Teachers
Association, 	CTA/NEA 	the 	right 	to 	represent 	employees 	by
failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good 	faith.
B: 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE POLICIES 	OF THE ACT:
(1) 	Upon 	request, 	meet 	and 	negotiate 	with 	the
exclusive 	representative 	concerning 	preparation 	time 	and 	the
length 	of 	the 	instructional 	day.
(2) 	Reinstate 	the 	schedule 	in 	effect prior 	to
January 	1, 	1977 	with 	respect 	to 	the 	preparation 	time 	and 	length
of 	the 	teachers' 	instructional day 	until 	such 	time 	as 	the
parties 	reach 	agreement 	or 	negotiate 	through 	completion 	of 	the
statutory 	impasse 	procedure 	concerning 	the 	subject 	matter 	of
the 	unlawful 	unilateral 	change. 	However, 	the 	status quo 	ante
shall 	not 	be 	restored 	if, 	subsequent 	to 	the 	District's 	actions,
the 	parties 	have, 	on 	their 	own 	initiative, 	reached 	agreement or
negotiated 	through 	completion 	of 	the 	impasse 	procedure
concerning 	the 	subject matter 	of 	the 	unilateral 	change.
(3) 	Pay 	to 	affected 	employees 	an 	amount 	sufficient 	to
make 	them whole 	for 	the 	loss 	of preparation 	time 	which 	resulted
from 	the 	employer's 	unilateral 	change 	from January 	1, 	1977
until 	such 	time 	as 	the 	parties 	reach 	agreement 	or 	negotiate
through 	completion 	of 	the 	statutory 	impasse 	procedure
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concerning 	the 	subject 	matter 	of 	the 	unlawful 	unilateral
change. 	However, 	if 	subsequent 	to 	the District's 	unlawful
actions, 	the 	parties have, 	on 	their 	own 	initiative, 	reached
agreement 	or 	negotiated 	through 	completion 	of 	the 	statutory
impasse 	procedure 	concerning 	the 	subject 	matter 	of 	the
unilateral 	change, 	liability 	for 	back 	pay 	shall 	terminate 	at
that point. 	Any 	payment 	shall 	include 	interest 	at 	the 	rate 	of
7 	(seven) 	percent 	per 	annum.
(4) 	Within 	thirty-five 	(35) 	days 	following 	the 	date
of 	service 	of 	this 	final 	Decision, 	post 	at 	all work 	locations
where 	notices 	to 	employees 	are 	customarily 	placed, 	copies 	of
the Notice 	attached 	as 	an 	appendix 	hereto, 	signed 	by 	an
authorized 	agent 	of 	the 	employer. 	Such 	posting 	shall 	be
maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive 	workdays.
Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	this Notice 	is
not 	reduced 	in 	size, 	defaced, 	altered 	or 	covered 	by 	any
material.
(5) 	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 	her
instructions.
This 	Order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	upon 	the 	San Mateo City School 	District.
By 	the 	BOARD
Chairperson 	Hesse's 	concurrence 	begins 	on 	page 	9.
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Chairperson Hesse, 	concurring: 	While 	I 	am in agreement
with 	the 	amended 	order 	in general, 	I 	would go 	even 	further 	and
take 	notice 	of 	any 	subsequent 	collective 	bargaining 	agreement
that 	serves 	to 	limit 	the 	remedy.
Under 	PERB 	Regulation 32120, 	each 	employer 	that enters 	into
a 	written 	agreement 	or 	memorandum of 	understanding 	with 	an
exclusive 	representative must 	file 	a 	copy of 	that 	agreement
with PERB. 	Surely one purpose of 	that 	regulation 	is 	to provide
this Board 	with 	information 	concerning 	contracts 	negotiated
subsequent 	to a charge of unfair practices. 	It 	is 	a
particularly 	appropriate 	practice 	for 	the Board 	to 	take 	notice
of 	such 	agreements 	when 	the 	respondent 	has 	been 	found 	guilty of
a 	refusal 	to 	bargain, 	as 	the Board 	did 	in Delano Union
Elementary School District, PERB Decision No. 	213a 	(10/15/82).
To 	determine 	whether 	a 	subsequent 	collective 	bargaining
agreement 	acted 	as 	a 	settlement of 	a prior 	refusal 	to bargain,
the 	majority 	is 	unwilling 	to 	rely 	upon 	the 	declaration of
Dr. 	Rajendra Prasad. 	In 	that declaration, 	Dr. 	Prasad states
that 	the 	District did, 	subsequent 	to 	the 	hearing officer's
decision 	in 	this 	case, 	negotiate 	teacher's preparation 	time 	and
the 	length 	of 	the 	instructional day. 	Because 	of PERB's
Regulation 32120, 	however, 	I 	find no need 	to rely upon 	that
declaration. 	An 	independent 	reading 	of Article 	6 	of 	the
1979-82 Agreement 	shows 	that 	the 	subjects of 	teacher's
preparation 	time 	(sec. 	6.1.3.1) 	and 	the 	length 	of 	the
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instructional day 	(sec. 	6.1.3.2) 	were 	negotiated. 	Therefore,
any 	harm done 	by 	the 	initial 	refusal 	to 	bargain 	about 	those
subjects 	was 	cured 	as of July 	l f 	1979.
I 	am not 	suggesting 	that 	the 	charge of 	refusal 	to 	bargain
is mooted by subsequent negotiations. 	I do believe, 	however,
that 	the 	remedy may be mooted. 	(See e.g., 	Cagles, 	Inc. 	v. 	NLRB
588 	F.2d 943 	[100 LRRM 2590] 	(5th Cir. 	1979).)
Nor 	do I 	believe 	that 	a compliance hearing 	is
inappropriate. 	Rather, 	I 	believe 	that we 	should direct 	the
compliance 	officer 	to 	examine 	any 	potential 	losses 	suffered 	as
a result of 	the 	respondent's 	actions 	up 	to July 	1, 	1979. 	Any
liability beyond 	that point 	is, 	I 	suggest, 	terminated by 	the
execution of 	the 	collective 	bargaining 	agreement 	for 	the 	term
July 1, 	1979 	through June 30, 	1982.
A compliance 	hearing 	officer, 	in 	limiting 	liability 	up 	to
1979, 	might 	also 	conclude 	that 	the 	collective bargaining
agreement 	for 	the 	term July 	1, 	1977 	through June 30, 	1979 	also
served 	as 	a settlement, 	in 	that 	the 	parties 	adequately
negotiated 	hours 	and 	preparation 	time 	in 	that 	agreement.
Because 	the 	language 	concerning 	preparation 	time 	(sec. 	6.1.3.1)
and instructional time (sec. 6.1.3.2 and 6.1.3.3) 	in the
1977-79 	agreement 	is 	not 	as clear 	and 	unambiguous 	as 	the
1979-82 	agreement, 	testimony of 	the 	negotiators would 	be
appropriate 	to determine 	whether 	negotiations 	were 	adequate 	to
establish 	settlement.
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In conclusion, 	I 	would 	find 	that 	the clear 	and 	unambiguous
language 	of 	the 	1979-82 	agreement 	establishes 	that 	the 	parties
did 	negotiate 	about 	the 	issue 	of 	instructional 	time 	and
preparation 	time. 	Therefore, 	any compliance 	hearing 	should 	be
limited 	to 	the 	time 	between 	when 	the District 	first 	refused 	to
bargain 	about 	instructional 	and 	preparation 	time, 	and July 	1,
1979. 	The compliance officer 	can determine what, 	if any,
financial 	liability was 	suffered 	by 	the 	teachers 	during 	this
time, 	and 	whether 	any collective 	bargaining 	agreements 	reached
prior 	to July 	1, 	1979 	acted 	as 	a 	settlement of 	the 	unfair
practice 	charge 	and 	further 	reduced 	the 	respondent's 	liability.
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APPENDIX
NOTICE 	TO ALL 	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. 	SF-CE-36, 	San
Mateo Elementary Teachers 	Association, 	CTA/NEA v. 	San Mateo
City School District, 	in 	which 	all 	parties 	had 	the 	right 	to
participate, 	it 	is 	found 	that 	the 	San Mateo City School
District 	violated 	the 	Educational 	Employment 	Relations 	Act,
Government Code subsections 3543.5(a), 	(b), and 	(c), by
unilaterally 	reducing 	teachers' 	preparation 	time 	and 	increasing
the 	length 	of 	their 	instructional 	day 	without 	affording 	the
exclusive 	representative 	notice 	and 	an 	opportunity 	to 	negotiate.
As 	a 	result 	of 	this 	conduct 	we 	have 	been 	ordered 	to 	post
this Notice 	and 	we 	will:
A: 	CEASE 	AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	San 	Mateo 	Elementary 	Teachers 	Association,
CTA/NEA, 	with 	respect 	to 	teacher 	preparation 	time 	and 	length 	of
the 	teacher's 	instructional 	day;
(2) 	Interfering 	with 	the 	rights 	of employees 	to be
represented 	by 	failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith;
(3) 	Denying 	the 	San 	Mateo Elementary Teachers
Association, 	CTA/NEA 	the 	right 	to 	represent 	employees 	by
failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good 	faith.
B: 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(1) 	Upon 	request, 	meet 	and 	negotiate 	with 	the
exclusive 	representative 	concerning 	preparation 	time 	and 	the
length 	of 	the 	instructional 	day.
(2) 	Reinstate 	the 	schedule 	with 	respect 	to 	the
preparation 	time 	and 	length 	of 	the 	teachers' 	instructional 	day
in 	effect 	prior 	to January 	1, 	1977 	until 	such 	time 	as 	the
parties 	reach 	agreement 	or 	negotiate 	through 	completion 	of 	the
statutory 	impasse 	procedure 	concerning 	the 	subject 	matter 	of
the 	unlawful 	unilateral 	change. 	However, 	the 	status quo 	ante
-shall 	not 	be 	restored 	if, 	subsequent 	to 	the 	District's 	actions,
the 	parties 	have, 	on 	their 	own 	initiative, 	reached 	agreement 	or
negotiated 	through 	completion 	of 	the 	impasse 	procedure
concerning 	the 	subject matter 	of 	the 	unilateral 	change.

(3) 	Pay 	to affected 	employees 	an 	amount 	sufficient 	to
make 	them 	whole 	for 	the 	loss 	of preparation 	time 	which 	resulted
from 	the 	employer's 	unilateral 	change 	from January 1, 	1977
until 	such 	time 	as 	the 	parties 	reach 	agreement or 	negotiate
through 	completion 	of 	the 	statutory 	impasse 	procedure
concerning 	the 	subject matter 	of 	the 	unlawful 	unilateral
change. 	However, 	if 	subsequent 	to the District's unlawful
actions 	the parties have, 	on 	their 	own 	initiative, 	reached
agreement 	or 	negotiated 	through 	completion 	of 	the 	statutory
impasse 	procedure 	concerning 	the 	subject matter 	of 	the
unilateral change, 	liability for 	back 	pay 	shall 	terminate 	at
that point. 	Any payment 	shall 	include 	interest 	at 	the 	rate 	of
7 	(seven) 	percent 	per 	annum.
Dated: 	SAN 	MATEO CITY 	SCHOOL 	DISTRICT
By: Authorized 	Representative
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST 	REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF POSTING AND MUST NOT
BE DEFACED, 	ALTERED, 	REDUCED 	IN SIZE OR COVERED BY ANY OTHER
MATERIAL.
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