La Canada Unified School District (PERB 0461E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LA 	CANADA 	TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
LA 	CANADA 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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____________________ )
Case 	No. 	LA-CE-1637
PERB 	Decision 	No. 	461
December 	13, 	1984
Appearances: 	Michael 	R. 	White, 	Attorney 	for 	La 	Canada 	Teachers
Association, 	CTA/NEA; 	O'Melveny 	& Myers 	by 	Diane 	L. 	Whiting,
Attorney 	for 	La 	Canada 	Unified 	School 	District.
Before 	Tovar, 	Jaeger 	and 	Burt, 	Members.
DECISION
JAEGER, 	Member: 	The 	La 	Canada 	Teachers Association,
CTA/NEA 	excepts 	to 	the 	dismissal 	of 	its 	unfair 	practice 	charge
filed 	against 	the 	La 	Canada 	Unified 	School 	District. 	The
Association 	contends 	that 	the 	charge 	included 	an 	allegation
that 	the 	District 	violated 	section 	3543.5 	(a), 	(b) 	and 	(c) 	of
the 	Educational 	Employment 	Relations Act1 by 	unilaterally
reducing 	preparation 	time 	for 	6th grade 	teachers. 2 The
administrative 	law 	judge 	determined 	that 	the 	alleged 	violation
had 	neither 	been 	included 	in 	the 	charge 	nor 	fully 	litigated 	at
the 	subsequent 	hearing.
1codified 	at 	Government 	Code 	section 	3540 	et. 	seq.
2No 	exceptions 	were 	filed 	to 	the 	dismissal 	of 	the 	other
allegations 	contained 	in 	the 	charge.

ORDER
The 	Public 	Employment 	Relations 	Board 	has 	reviewed 	the
entire 	record, 	including 	the 	exceptions 	filed 	by 	the 	charging
party 	and, 	finding 	no 	prejudicial 	error 	of 	fact 	or 	law, 	adopts
the 	attached 	proposed 	decision 	as 	its 	own 	and 	ORDERS 	that 	the
charge 	is 	DISMISSED.
Members 	Tovar 	and 	Burt 	joined 	in 	this 	Decision.
2

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LA CANADA 	TEACHERS 	ASSOCIATION,
Charging 	Party,
v.
LA CANADA UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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____________________ )
Unfair 	Practice
Case 	No. 	LA-CE-1637
PROPOSED 	DECISION
( 8/10/83)
Appearances: 	Michael 	R. 	White, 	California 	Teachers
Association, 	Attorney 	for 	La 	Canada 	Teachers 	Association; 	Diane
L. 	Whiting, 	O'Melveny 	& Myers, 	Attorney 	for 	La 	Canada. Unified
School 	District.
Before: 	Marian 	Kennedy, 	Administrative 	Law 	Judge.
STATEMENT OF 	THE 	CASE
On 	September 	16, 	1982, 	the 	La 	Canada 	Teachers 	Association
(hereinafter 	Association) 	filed 	the 	above-captioned 	unfair
practice 	charge 	against 	the 	La 	Canada 	Unified 	School 	District
(hereinafter 	District) 	alleging 	that 	the 	District 	violated
sections 	3543.S(a), 	(b) 	and 	(c) 	of 	the 	Educational Employment
Relations 	Act 	(hereinafter 	EERA or 	the 	Act)l 	by 	unilaterally
increasing 	the 	work 	hours 	of 	teachers 	in 	the 	District 	without
first 	meeting 	and 	negotiating 	with 	the 	Association. 	The
Association 	is 	the 	exclusive 	representative 	of 	the 	certificated
employees 	of 	the 	District.
lThe EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
are 	to 	the 	Government 	Code.

A complaint 	was 	issued 	on 	the 	above-stated 	charge 	on
November 	9, 	1982. 	The 	District 	filed 	an 	Answer 	on
December 	3, 	1982, 	and 	a 	particularized 	Answer 	on March 	7, 	1983,
admitting 	the 	alleged 	changes 	but 	alleging 	as 	an 	affirmative
defense 	that 	the 	District 	had 	been 	explicitly 	granted 	the
authority 	to 	make 	such 	changes 	by 	the 	terms 	of 	the 	parties'
collective 	bargaining 	agreement.
An 	informal 	conference 	was 	held 	on 	December 	15, 	1982, 	but
the 	matter 	was 	not 	resolved. 	A formal 	hearing 	was 	conducted 	by
the 	undersigned 	Administrative 	Law 	Judge 	on 	April 	4, 	1982. 	The
parties 	filed 	post-hearing 	briefs 	and 	the 	matter 	was 	submitted
for 	decision 	on 	June 	8, 	1983.
FINDINGS 	OF 	FACT
The 	District's 	Unilateral 	Action
On 	July 	20, 	1982, 	the 	District's 	Governing 	Board 	adopted
increases 	in 	the 	instructional 	day 	in 	all 	schools 	for 	the
1982-83 	school 	year, 	as 	follows:
kindergarten 	20 	minutes
grades 	1 	- 	6 	40 	minutes
grades 	7 	- 	8 	5 minutes
grades 	9 	- 	12 	15 	minutes
The 	District 	did 	not 	give 	advance 	notice 	nor 	did 	it 	agree 	to
negotiate 	regarding 	these 	changes 	upon 	demand 	by 	the
Association.
2

Other 	aspects 	of 	the 	teachers' 	working 	hours 	remained
unchanged, 	including 	a 	fixed 	one-half 	hour 	non-instructional
time 	at 	the 	beginning 	and 	end 	of 	the 	workday, 	one-half 	hour
duty-free 	lunch, 	fixed 	amounts 	of 	preparation 	time 	(except 	with
respect 	to 	sixth 	grade 	teachers, 	discussed 	below), 	and 	a
maximum workday 	of 	eight 	hours, 	all 	of 	which 	are 	set 	by 	the
terms 	of 	Article 	XII, 	section 	2 of 	the 	parties' 	contract, 	infra.
The 	increase 	in 	instructional 	time 	for 	sixth 	grade 	teachers
is 	not 	accurately 	reflected 	by 	the 	above 	figures 	since 	the
District 	also 	instituted 	other 	changes 	affecting 	them.
Specifically, 	in 	March 	1982 	the 	District 	decided 	to 	transfer
the 	sixth 	grades 	from 	the 	intermediate 	school 	(~th 	- 	8th) 	level
to 	the 	elementary 	school 	level 	commencing 	in 	the 	1982-83 	school
year. 	The 	change 	involved 	alteration 	of 	the 	sixth 	grade
teaching 	program 	to 	some 	extent 	and 	an 	increase 	in
instructional 	hours 	from 	270 	minutes 	per 	day 	(in 	1981-82) 	in
the 	intermediate 	school 	to 	342 	minutes 	(in 	1982-83) 	in 	the
elementary 	school.2 	Thus 	the 	instructional 	hours 	for 	6th
grade 	teachers 	were 	effectively 	increased 	by 	72 	minutes 	per 	day.
The 	change 	from 	intermediate 	to 	elementary 	school 	programs
also 	effected 	the 	amount 	of 	preparation 	time 	for 	sixth 	grade
teachers. 	Preparation 	time 	was 	reduced 	from 	one 	period 	(55
minutes) 	per 	day 	to 	90 	minutes 	per 	week, 	reflecting 	the
2These 	figures 	do 	not 	include 	preparation 	time.
3

difference 	in 	preparation 	time 	agreed 	upon 	in 	the 	1980-82
contract 	for 	intermediate 	versus 	elementary 	school 	teachers.
The 	District 	did 	not 	give 	the 	Association 	notice 	nor 	offer
to 	bargain 	regarding 	the 	effects 	of 	the 	transfer3 	on 	the
instructional 	time 	and 	preparation 	time 	of 	the 	sixth 	grade
teachers. 	Nor 	did 	the 	Association 	demand 	negotiations
regarding 	either 	aspect 	of 	these 	effects. 	With 	respect 	to 	the
preparation 	time 	change, 	the 	Association 	points 	out 	that 	the
contract 	specifically 	requires 	certain 	preparation 	time 	for
sixth 	grade 	teachers. 	It 	was 	the 	obligation 	of 	the 	District,
therefore, 	to 	propose 	changes 	in 	the 	preparation 	time
provision, 	if 	any 	such 	changes 	were 	necessary.
All 	of 	the 	above 	changes 	went 	into 	effect 	on
September 	13, 	1982.
Applicable 	Contract 	Provisions
The 	parties 	have 	had 	a 	series 	of 	collective 	bargaining
contracts, 	the 	initial 	one 	being 	for 	the 	period 	of 	March 	1977
through 	June 	1978. 	The 	contract 	covering 	the 	events 	alleged
herein 	was 	for 	the 	period 	of 	July 	1, 	1980, 	through
June 	30, 	1982. 	The 	parties 	commenced 	negotiations 	for 	a
successor 	to 	this 	contract 	in 	May 	of 	1982 	but 	did 	not 	reach
3There 	is 	no 	dispute 	that 	the 	decision 	to 	transfer 	the
sixth 	grade 	was 	not 	a 	mandatory 	subject 	of 	bargaining.
4

agreement 	until 	March 	9, 	1983. 	There 	is 	no 	dispute 	that 	the
parties 	treated 	the 	1980-82 	contract 	as 	remaining 	in 	effect
after 	its 	expiration 	date 	until 	a 	successor 	agreement 	was
reached.4
The 	contract 	provisions 	which 	are 	relevant 	to 	the 	instant
case 	are 	the 	following:
ARTICLE 	IV
1. 	It 	is 	understood 	and 	agreed 	that 	the
Governing 	Board 	retains 	all 	of 	its 	powers
and 	authority 	to 	direct 	and 	control 	the
District 	to 	the 	full 	extent 	of 	the 	law. 	All
matters 	not 	specifically 	enumerated 	in 	this
Agreement 	and 	which 	are 	outside 	the 	scope 	of
negotiation 	in 	accordance 	with 	Government
Code 	Section 	3543.2, 	are 	reserved 	to 	the
District.
2. 	It 	is 	agreed 	that 	such 	reserved 	rights
include, 	but 	are 	not 	limited 	to, 	the
exclusive 	right 	and 	power 	to 	determine,
implement, 	supplement, 	change, 	modify or
discontinue, 	in 	whole 	or 	in 	part,
temporarily 	or 	permanently, 	any 	of 	the
following:
4The 	agreement 	to 	extend 	the 	contract 	is 	evidenced 	by 	the
fact 	that 	the 	Association 	filed 	a 	grievance 	under 	the 	19~0-82
contract 	regarding 	the 	events 	in 	dispute 	herein, 	which 	arose
out 	of 	a 	decision 	of 	the 	District 	first 	taken 	after 	the
expiration 	date 	of 	that 	contract. 	Both 	parties 	processed 	the
grievance 	under 	the 	terms 	of 	the 	1980-82 	contract 	and 	in 	all
respects 	treated 	that 	contract 	as 	controlling. 	Neither 	party
attempts 	to 	deny 	the 	applicability of 	the 	1980-82 	contract 	to
this 	dispute.
5

I. 	The 	dates, 	times 	and 	hours 	of
operation 	of 	District 	facilities,
functions, 	and 	activities, 	and 	work
schedules 	limited 	only 	by 	the 	express
terms 	of 	Article 	XII, 	Professional
Employee 	Duties/Hours 	of Employment.
ARTICLE 	IX, 	Section 	2
The 	District 	agrees 	not 	to 	adopt 	policies 	or
procedures 	that 	affect 	professional
employees 	without 	providing 	the 	Association
an 	opportunity 	to 	review 	such 	policies 	or
procedures 	and 	indicate 	possible 	concerns.
The 	District 	further 	agrees 	to 	provide
opportunities 	for 	conferring 	on 	such
concerns.
ARTICLE 	XII, 	Section 	2
The 	length 	of 	the 	regular 	school 	day
including 	starting 	and 	ending 	time 	shall 	be
fixed 	by 	the 	Governing 	Board, 	upon
recommendation 	of 	the 	Superintendent. 	The
working 	day 	of 	professional 	employees 	shall
be 	from 	one-half 	(1/2) 	hour 	before 	the 	start
of 	the 	regular 	school 	day 	to 	one-half 	(1/2)
hour 	after 	the 	end 	of 	the 	regular 	school
day. 	Each 	professional 	employee 	will 	be
provided 	a 	duty-free 	lunch 	of 	one-half 	(1/2)
hour 	between 	the 	hours 	of 	11:00 	a.m. 	and
1:30 	p.m. 	Each 	professional 	employee 	shall
be 	provided 	minimum preparation 	time 	within
the 	regular 	school 	day 	as 	follows:
Elementary, 	90 	minutes 	per 	week. 	Grades
6-12, 	one 	period 	preparation 	for 	each 	5
periods 	taught 	by 	the 	professional 	employee
(teaching 	and 	preparation 	period, 	55
minutes), 	no 	teacher 	will 	be 	responsible 	for
more 	than 	5 	teaching 	periods 	per 	day 	unless
mutually 	agreed 	upon, 	teaching 	and 	·
preparation 	time 	may 	be 	accumulated 	over 	a
2 day 	period. 	The 	professional 	employee
shall 	not 	be 	accountable 	for 	more 	than 	eight
(8) 	hours 	per 	day 	except 	as 	hereinafter
described.5
5The 	Association 	also 	cites 	Article 	I, 	section 	5 which
includes 	a 	waiver 	of 	further 	negotiations 	on 	any 	subject 	during
6

Bargaining 	History
Evidence 	was 	introduced 	regarding 	the 	negotiations 	with
respect 	to 	the 	quoted 	Articles 	for 	the 	1977-78 	contract.6
The 	District 	called 	as 	witnesses 	not 	only 	its 	own 	negotiator,
Donald 	Davidson, 	but 	also 	Voytek 	Dolinski, 	the 	Association's
chief 	negotiator 	during 	the 	1977 	bargaining. 	Dolinski 	is
currently 	a 	vice 	principal 	of 	the 	District 	high 	school 	and
acted 	as 	the 	District's 	chief 	negotiator 	in 	the 	1982-85
negotiations. 	Both 	men 	testified 	that 	during 	the 	1977
negotiations 	the 	District 	strove 	to 	preserve 	as 	much of 	its
the 	term 	of 	the 	Agreement. 	The 	Association 	correctly 	argues
that 	such 	a 	waiver 	does 	not 	authorize 	unilateral 	action 	by 	the
District. 	The 	District 	does 	not 	rely 	upon 	this 	section 	as 	part
of 	its 	waiver 	defense; 	therefore, 	no 	further 	discussion 	of 	it
is 	necessary.
6The 	language 	negotiated 	for 	those 	Articles 	in 	1977
remains 	unchanged 	in 	the 	1980-82 	contract 	except 	that 	the
following 	language 	(quoted 	above) 	was 	included 	for 	the 	first
time 	in 	the 	1980-82 	contract:
Article 	IV: 	the 	words: 	"and 	which 	are
outside 	the 	scope 	of
negotiations 	in 	accordance
with 	Government 	Code
Section 	3543.2"
Article 	XII: 	(1) 	the 	provision 	limiting
the 	duty 	free 	lunch 	to
between 	11:00 	and 	1:30;
(2) 	the 	provision 	specifying
minimum preparation 	times 	at
the 	various 	grade 	levels, 	as
well 	as 	the 	length 	of
teaching 	periods 	and 	the
maximum of 	5 	teaching 	periods
per 	day 	in 	grades 	6-12.
7

unilateral 	control 	over 	matters 	within 	the 	scope 	of 	bargaining
as 	it 	could 	and 	the 	Association 	sought 	to 	limit 	the 	District's
unilateral 	power 	to 	the 	extent 	possible.
According 	to 	Dolinski, 	Article 	IV, 	District 	Rights,
represented 	a 	compromise 	of 	those 	positions. 	Article 	IV,
section 	2(I) 	provides 	that 	the 	District 	has 	the 	authority 	to
set 	the 	"dates, 	times 	and 	hours 	of 	operation 	of 	District
facilities 	••• 	and 	work 	schedules 	limited 	only 	by 	the 	express
terms 	of 	Article 	XII." 	Article 	XII, 	section 	2 	reiterates 	the
point: 	"The 	length 	of 	the 	regular 	school 	day 	including
starting 	and 	ending 	time 	shall 	be 	fixed 	by 	the 	Governing 	Board"
but 	then 	imposes 	certain 	specific 	limitations 	with 	respect 	to
teachers' 	workdays. 	Dolinski 	testified 	that 	the 	language 	just
quoted 	in 	Article 	XII, 	section 	2 was 	proposed 	by 	the 	District
and 	that 	the 	remainder 	of 	that 	section, 	as 	well 	as 	other
limiting 	provisions 	in 	Article 	XII, 	reflected 	the 	Association's
concern 	that 	the 	quoted 	language 	would 	give 	the 	District 	the
authority 	to 	impose 	unreasonable 	working 	hours. 	Thus, 	the
Association 	sought 	to 	limit 	that 	authority 	by 	various
provisions 	such 	as 	an 	eight-hour 	day 	limitation, 	a 	one-half
hour 	duty-free 	lunch, 	a 	provision 	limiting 	the 	teachers'
workday 	to 	the 	period 	from 	one-half 	hour 	before 	to 	one-half
hour 	after 	the 	regular 	school 	day, 	all 	of 	which 	appear 	in
section 	2, 	and 	limitations 	on 	extra-duty 	assignments, 	which
appear 	in 	other 	sections 	of 	Article 	XII.
8

The 	District's 	negotiator 	testified 	that 	the 	parties
understood 	Article 	IV, 	section 	2(I) 	to 	give 	the 	District 	full
authority 	to 	set 	dates, 	times, 	hours 	and 	work 	schedules 	limited
only 	by 	the 	provisions 	of 	Article 	XII. 	He 	testified, 	however,
that 	there 	had 	been 	no 	specific 	discussion 	of 	the 	District's
authority 	to 	establish 	the 	length 	of 	the 	school 	day.
With 	respect 	to 	Article 	IX, 	Consulting 	and 	Conferring,
Dolinski 	testified 	that 	the 	purpose 	of 	the 	Article 	was 	to
accommodate 	the 	limited 	scope 	of 	bargaining 	under 	EERA. 	The
Article 	required 	the 	District 	to 	consult 	or 	confer 	regarding
matters 	which 	affect 	teachers 	but 	which 	fall 	outside EERA's
scope 	of 	negotiation.
Association 	negotiators 	Stinson 	and 	Harlan 	testified
regarding 	the 	bargaining 	history 	of 	the 	changes 	in 	Article 	XII
added 	to 	the 	1980-82 	contract. 	Both 	testified 	that 	the 	changes
in 	the 	working 	hours 	provisions 	of 	Article 	XII, 	section 	2 were
intended 	by 	both 	sides 	to 	codify 	existing 	practice 	and 	that 	the
District 	and 	Association 	had 	agreed 	that 	the 	status 	quo would
be 	preserved 	regarding 	teachers' 	working 	hours 	generally 	during
the 	1980-82 	contract. 	According 	to 	Harlan, 	the 	District 	had
refused 	to 	detail 	all 	elements 	of 	the 	status quo on 	teachers'
hours 	in 	the 	contract 	but 	the 	District 	had 	stated 	that 	it 	had
no 	intention of 	making 	any 	changes 	in 	hours. 	District
negotiator 	Facer 	testified 	that 	the 	District 	specifically
9

refused 	to 	include 	a 	provision 	requiring 	maintenance 	of 	the
status 	quo 	on 	this 	issue 	and 	instead 	agreed 	only 	to 	the
specific 	additional 	limitations 	on 	the 	District's 	power 	to
change 	teachers' 	working 	hours 	which 	were 	requested 	by 	the
Association 	and 	were 	added 	to 	Article 	XII.7
ISSUES 	PRESENTED
1. 	Did 	the 	Association 	waive 	its 	right 	to 	bargain
regarding 	changes 	in 	instructional 	hours 	of 	teachers 	by
agreeing 	to 	the 	contract 	provisions 	quoted 	above?
2. 	Did 	the 	District 	violate EERA by 	reducing 	the
preparation 	time 	of 	sixth 	grade 	teachers 	in 	violation 	of
Article 	XII, 	section 	2 of 	the 	parties' 	contract?
CONCLUSIONS 	OF 	LAW
I. 	Waiver 	of 	Bargaining 	Regarding 	Work 	Hours
The 	parties 	do 	not 	dispute 	that 	the 	change 	in 	teachers'
working 	hours, 	adopted 	by 	the 	District 	on 	July 	20, 	1982, 	is 	a
matter 	within 	the 	scope 	of 	negotiation 	under 	EERA. 	The
District 	argues 	that 	it 	was 	justified 	in making 	the 	changes 	in
7Stinson 	also 	testified 	re~arding 	an 	alleged 	District
agreement 	to maintain 	preparation 	periods 	at 	94 	minutes 	each
two 	days, 	although 	the 	contract 	provides 	for 	55 	minutes 	per
day, 	and 	to 	negotiate 	with 	the 	Association 	before 	making 	any
changes 	in 	the 	preparation 	time. 	Neither 	party 	relies 	upon
this 	testimony 	in 	its 	argument 	and 	it 	is 	not 	considered 	further
herein 	since 	it 	does 	not 	add 	to 	or 	detract 	from 	either 	parties'
position.
10

this 	case, 	however, 	because 	the 	parties' 	collective 	bargaining
agreement, 	specifically 	Articles 	IV and 	XII, 	explicitly 	grant
the 	District 	the 	authority 	to 	do 	so. 	Therefore, 	the
Association 	waived 	its 	right 	to 	further 	bargaining 	regarding
any 	changes 	made 	pursuant 	to 	that 	authority.
The 	standard 	for 	determining 	whether 	an 	employee
organization 	has 	waived 	its 	right 	to 	bargain 	on 	a 	mandatory
subject 	is 	a 	strict 	one. 	As 	the 	PERB 	stated 	in 	Solano County
Community College 	District 	(1982) 	PERB 	Decision 	No. 	219:·
In 	order 	for 	a 	waiver 	of 	a 	statutory 	right
to 	be 	found, 	the 	District 	must 	prove 	the
waiver 	by 	either 	clear 	and 	unmistakable
language 	or 	demonstrable 	behaviour 	amounting
to 	a 	waiver 	of 	the 	right 	to 	meet 	and
negotiate. 	(Id. 	at 	11.)
Similarly, 	in 	Los 	Angeles 	Community College 	District 	(1982)
PERB 	Decision 	No. 	252, 	where 	a 	waiver 	was 	alleged 	based 	upon
contract 	language, 	the 	PERB 	stated:
Contract 	terms 	will 	not 	justify 	a 	unilateral
management 	act 	on 	a 	mandatory 	subject 	of
bargaining 	unless 	the 	contract 	expressly 	or
by 	necessary 	implication 	confers 	such
right. 	New York 	Mirror 	(1965) 	151 	NLRB 	834
[58 	LRRM 	1465, 	1467]. 	(Id. 	at 	10.)
I 	conclude 	that 	Articles 	IV and 	XII 	do 	constitute 	such
clear 	and 	unmistakable 	express 	waiver 	of 	the 	Association's
right 	to 	bargain 	regarding 	changes 	in 	the 	instructional 	hours
of 	teachers. 	Article 	IV, 	section 	2(I) 	provides 	that 	the 	rights
reserved 	to 	the 	District 	shall 	include 	the 	right 	to 	"determine"
or 	"change" 	the 	"dates, 	times 	and 	hours 	of 	operation 	of
11

District 	facilities, 	functions 	and 	activities, 	and 	work
schedules 	limited 	only 	by 	the 	express 	terms 	of 	Article 	XII."
That 	language 	permits 	the 	District 	to 	set 	the 	numbers 	and
lengths 	of 	classes, 	as 	well 	as 	the 	specific 	scheduling 	of
classes. 	Moreover, 	it 	gives 	the 	District 	the 	authority 	to
determine 	the 	work 	schedules 	of 	all 	professional 	employees.
Setting 	the 	schedules 	of 	student 	classes 	and 	the 	work 	schedules
of 	teachers 	necessarily 	determines 	the 	working 	hours 	as 	well 	as
the 	instructional 	hours 	of 	teachers.
Nothing 	in 	Article 	XII 	undermines 	that 	general 	authority;
instead 	it 	sets 	specific 	limits 	within 	which 	the 	authority may
be 	exercised 	(e.g., 	eight-hour 	maximum day, 	one-half 	hour
duty-free 	lunch, 	one-half 	hour 	non-instructional 	time 	at 	the
beginning 	and 	end 	of 	the 	school 	day, 	etc.). 	If 	anything,
Article 	XII 	reinforces 	the 	authority 	granted 	in 	Article 	IV, 	at
least 	with 	respect 	to 	setting 	working 	hours. 	Article 	XII,
section 	2 	states 	that 	"the 	length 	of 	the 	regular 	school 	day
including 	starting 	and 	ending 	times 	shall 	be 	fixed 	by 	the
Governing 	Board," 	and 	then 	defines 	the 	working 	day 	of 	teachers
by 	reference 	to 	the 	"regular 	school 	day," 	the 	working 	day 	of
teachers 	being 	from 	one-half 	hour 	before 	until 	one-half 	hour
after 	the 	regular 	school 	day.
Thus, 	on 	their 	face, 	Articles 	IV and 	XII 	clearly and
expressly 	reserve 	to 	the 	District 	the 	authority 	to 	determine
the 	working 	hours 	and 	instructional 	hours 	of 	teachers.
12

The 	Association 	makes 	several 	arguments 	to 	show 	that 	this
conclusion 	is 	incorrect. 	First, 	it 	argues 	that that 	such 	a
finding 	is 	contradicted 	by 	Article 	IV, 	section 	1 which
provides: 	"All 	matters 	not 	specifically 	enumerated 	in 	this
Agreement 	and 	which 	are 	outside 	the 	scope 	~f 	negotiation 	•••
are 	reserved 	to 	the 	District." 	The 	Association 	asserts 	that
the 	effect 	of 	this 	provision 	is 	to 	reserve 	to 	the 	District only
those 	rights 	which 	are 	outside 	the 	scope 	of 	negotiation. 	It
reaches 	that 	conclusion 	by 	the 	following 	reasoning:
(1) 	Article 	IV, 	section 	1 	reserves 	to 	the 	District only
those 	matters 	which 	are 	both 	not 	specifically 	enumerated 	in 	the
agreement 	and 	outside 	the 	scope 	of 	negotiation.
(2) 	Article 	IV, 	section 	2 provides 	that 	"such 	reserved
rights," 	include 	a 	long 	list 	of 	matters, 	among 	them 	being 	2{I),
the 	dates, 	times 	and 	hours 	of 	operation 	and 	work 	schedules,
limited 	only 	by 	Article 	XII.
(3) 	Since 	section 	2 	refers 	to 	"such 	reserved 	rights," 	that
phrase 	necessarily 	refers 	back 	to 	the 	reserved 	rights 	defined
in 	section 	1 of 	that 	Article, 	which 	include 	only 	rights 	outside
the 	scope 	of 	negotiations. 	Section 	2 does 	not 	add 	any 	District
rights 	but 	only 	enumerates 	examples 	of 	reserved 	rights.
That 	argument 	attempts 	to 	read 	more 	into 	the 	words 	"such
reserved 	rights" 	than 	is 	reasonable 	in 	light 	of 	the 	contract
language. 	A reasonable,reading 	of 	Article 	IV 	is 	that 	it
reserves 	to 	the 	District 	those 	rights 	and 	powers 	specifically
13

negotiated 	and 	enumerated 	in 	the 	contract, 	as 	well 	as 	any 	other
rights 	or 	powers 	not 	specifically 	enumerated, 	provided 	that
those 	non-enumerated 	rights 	and 	powers 	are 	ones 	outside 	the
scope 	of 	negotiations. 	Thus 	the 	reference 	in 	Article 	IV,
section 	1 	to 	"only" 	those 	matters 	which 	are 	outside 	the 	scope
of 	negotiation 	is 	a 	limitation on 	the 	District's 	authority 	over
matters 	not 	enumerated 	in 	the 	contract.
The 	Association's 	argument, 	by 	contrast, 	is 	essentially
that 	it 	cannot 	be 	held 	to 	any 	explicit 	contractual 	concessions
which 	it 	made 	on 	any 	matter 	within 	the 	scope 	of 	negotiation.
Under 	that 	interpretation, 	any 	attempt 	by 	the 	District 	to
negotiate 	concessions 	from 	the 	Association 	in 	the 	form 	of
reserved 	powers 	would 	have 	been 	pointless 	since 	any 	concessions
which 	the 	District 	won 	would 	not 	be 	effective 	unless 	the
subject 	matter 	of 	the 	concession 	were 	outside 	the 	scope 	of
negotiation. 	Needless 	to 	say, 	if 	the 	matter 	conceded 	were
outside 	the 	scope 	of 	negotiation, 	the 	Association 	had 	no power
to 	prevent 	the 	District ~rom 	acting 	unilaterally 	on 	that 	matter
and 	no 	concession 	from 	the 	Association 	was 	necessary 	to
preserve 	the 	District's 	power 	to 	act. 	While 	the 	interpretation
of 	"such 	reserved 	rights" 	advanced 	by 	the 	Association may 	be
grammatically 	correct, 	it 	must 	be 	rejected 	because 	of 	the
irrational 	and 	obviously 	unanticipated 	effects 	which 	it would
have 	of 	nullifying 	numerous 	other 	provisions 	of 	the 	contract.
14

Secondly, 	the 	Association 	turns 	its 	attention 	to
Article 	XII 	and 	argues 	that 	the 	first 	sentence 	of 	section 	28
of 	that 	Article 	merely 	recognizes 	the 	authority of 	the
District, 	under 	the 	Education 	Code, 	to 	determine 	the 	regular
school 	day 	for 	students. 	The 	Association 	quotes 	San Mateo
School 	District 	(1980) 	PERB 	Decision 	No. 	129, 	to 	the 	effect
that 	the 	school 	day 	for 	students 	is 	not 	the 	same 	as 	either 	the
workday 	for 	teachers 	or 	that 	part 	of 	the 	teachers' 	workday
which 	is 	instructional 	time. 	San 	Mateo 	held 	that 	while 	the
District 	has 	the 	authority 	to 	set 	unilaterally 	the 	school 	day
for 	students, 	that 	authority 	does 	not 	extend 	to 	setting
unilaterally 	the 	teachers' 	workday 	or 	instructional 	day.
That 	argument 	might 	be 	persuasive 	were 	it 	not 	for 	two 	other
provisions. 	With 	respect 	to 	the 	teachers' 	workday, 	the 	second
sentence 	of 	the 	same 	section 	explicitly 	defines 	the 	teachers'
workday 	by 	reference 	to 	the 	regular 	school 	day. 	Thus, 	in 	this
case, 	the 	District 	and 	the 	Association 	have 	explicitly
bargained 	regarding 	the 	length 	of 	the 	teachers' 	workday
separate 	from 	the 	school 	day 	for 	students 	and 	have 	agreed 	upon
a 	definition 	of 	the 	teachers' 	workday 	inextricably 	tied 	to 	the
8"The 	length 	of 	the 	regular 	school 	day 	including 	starting
and 	ending 	time 	shall 	be 	fixed 	by 	the 	Governing 	Board, 	upon
recommendation 	of 	the 	Superintendent."
15

length 	of 	the 	school 	day. 	Thus, 	the 	District 	has 	clear
authority 	to 	change 	the 	teachers' 	working 	day 	by changing 	the
length 	of 	the 	regular 	school 	day.
With 	respect 	to 	changes 	in 	the 	teachers' 	instructional 	day,
the 	District's 	authority 	is 	clear 	from 	its 	Article 	IV, 	section
2(I) 	rights 	to 	set 	class 	schedules 	and 	work 	schedules.
Moreover, 	since 	the 	same 	section 	provides 	that 	the 	District's
authority 	in 	that 	regard 	is 	limited 	only 	by 	the 	express 	terms
of 	Article 	XII, 	the 	limits 	set 	out 	in 	Article 	XII 	cannot 	be
expanded 	by 	judicial 	interpretation. 	If 	the 	Association 	wished
to 	prevent 	the 	District 	from 	exercising 	its 	Article 	IV,
section 	2(I) 	authority 	to 	change 	the 	instructional 	time 	of
teachers 	(by 	changing 	student 	classes 	and 	teacher 	work
schedules), 	given 	the 	terms 	of 	Article 	IV, 	section 	2, 	it 	had 	to
write 	an 	explicit 	limitation 	to 	that 	effect 	into 	Article 	XII.
That 	it 	did 	not 	do.
The 	Association 	argues 	that 	the 	fact 	that 	Article 	XII
contains 	certain 	specific 	limitations 	does 	not 	indicate 	that
the 	Association 	has 	"clearly 	and 	unmistakably" 	waived 	its 	right
to 	negotiate 	over 	other 	matters 	affecting 	teachers'
instructional 	time. 	The 	fact 	that 	the 	contract 	is 	silent 	on
instructional 	time, 	it 	asserts, 	does 	not 	operate 	as 	a 	waiver 	of
further 	limitations 	on 	the 	District's 	setting 	of 	instructional
time, 	beyond 	those 	stated 	in 	Article 	XII. 	"Surely, 	silence
does 	not 	constitute 	clear 	and 	unmistakable 	waiver," 	the
16

Association 	argues 	quoting 	Amador 	Valley 	Joint 	Union 	High
School 	District 	(1978) 	PERB 	Decision 	No. 	74.
Indeed, 	silence 	normally 	does 	not 	constitute 	a 	waiver, 	but
in 	this 	case 	the 	contract 	is 	not 	silent. 	It 	provides 	that 	the
only 	limitations 	on 	the 	District's 	right 	to 	set 	hours 	of
operation 	of 	District 	functions 	and 	activities, 	and 	work
schedules 	are 	those 	set 	out 	in 	Article 	XII. 	Once 	the
Association 	has 	agreed, 	as 	it 	did 	here, 	that 	a 	list 	of
limitations 	on 	District 	authority 	over 	a 	matter 	shall 	be
considered 	an 	exhaustive 	list, 	it 	cannot 	argue 	later 	that 	the
mere 	absence 	of 	additional 	limitations 	from 	that 	list 	should
not 	constitute 	a 	waiver 	of 	those 	limitations. 	By 	every 	rule 	of
fairness 	and 	logic, 	as 	well 	as 	according 	to 	the 	clear
contractual 	language, 	the 	absence 	of 	limiting 	provisions 	in
this 	context 	does 	constitute 	a 	waiver.
Thirdly, 	the 	Association 	argues 	that 	the 	presence 	of
Article 	IX 	- 	Consulting 	and 	Conferring 	negates 	any 	conclusion
that 	the 	contract 	otherwise 	permits 	the 	District 	to 	make
unilateral 	changes 	on 	matters 	affecting 	working 	conditions 	of
teachers. 	Article 	IX, 	section 	2 	requires 	the 	District 	to
consult 	before 	adopting 	any 	policies 	or 	procedures 	affecting
professional 	employees. 	The 	Association 	asserts 	that 	this
obligation 	is 	incompatible 	with 	a 	waiver 	of 	bargaining 	rights
on 	matters 	affecting 	teachers.
17

The 	apparent 	purpose 	of 	Article 	IX 	read 	as 	a 	whole 	is 	to
insure 	that 	the 	Association 	has 	the 	opportunity 	to 	consult 	or
confer 	on 	matters 	over 	which 	it 	has 	no 	right 	to 	negotiate, 	that
is, 	matters 	outside 	the 	scope 	of 	negotiation. 	Section 	1 of
that 	Article 	codifies 	the EERA 	section 	3543.2 	right 	of 	an
employee 	organization 	to 	consult 	on 	the 	definition 	of
educational 	objectives, 	the 	determination 	of 	the 	content of
courses 	and 	curriculum, 	and 	the 	selection 	of 	textbooks, 	all 	of
which 	are 	matters 	outside 	the 	scope 	of 	negotiation.9
Section 	2 follows 	and 	more 	generally 	provides 	for 	consultation
on 	any 	policies 	or 	procedures 	that 	affect 	professional
employees.
While 	this 	latter 	section 	does 	not 	specifically 	relate 	only
to 	matters 	outside 	the 	scope 	of 	negotiation, 	only 	that
interpretation 	is 	consistent 	with 	the 	statutory 	scheme. 	The
District 	has 	an 	obligation 	to 	bargaining 	regarding 	some
9section 	1 	reads:
The 	District 	proposes 	to 	utilize 	the
Instructional 	Planning 	Group, 	curriculum
writing 	committees 	and 	textbook 	selection
committees 	as 	currently 	organized 	to 	deal
with 	the 	definition 	of 	educational
objectives, 	determination 	of 	course 	content,
curriculum 	and 	textbook 	selection. 	The
District 	agrees 	to 	make 	reasonable 	effort 	to
provide 	the 	Association 	with 	information
regarding 	the 	activities 	of 	these 	groups 	or
committees. 	The 	District 	further 	agrees 	to
provide 	opportunities 	for 	consulting 	on
these 	matters.
18

subjects 	and 	an 	obligation 	to 	confer 	or 	consult 	regarding
others. 	It 	would 	be 	unreasonable 	to 	read 	Article 	IX 	to 	require
the 	District 	to 	confer 	or 	consult 	on 	matters 	on which 	it was
also 	obligated 	to 	bargain. 	The 	lesser 	obligation 	to confer 	or
consult 	is 	certainly 	encompassed 	in 	the 	greater 	obligation 	to
bargain.10
Moreover, 	the 	District 	did 	bargain 	as 	required 	with 	respect
to 	working 	hours 	and 	instructional 	hours 	of 	teachers, 	and 	won
the 	concession 	from 	the 	Association 	that 	it 	could 	unilaterally
institute 	changes 	in 	those 	subjects 	during 	the 	term of 	the
contract, 	subject 	to 	certain 	restrictions 	appearing 	in
Article 	XII. 	That 	fact 	that 	the 	Association 	bargained 	and 	made
limited 	concessions 	on 	a 	matter 	within 	the 	scope 	of 	bargaining
is 	not 	incompatible 	with 	its 	asserting 	a 	right 	to 	consult
regarding 	other 	matters 	outside 	the 	scope 	of 	bargaining. 	I
therefore 	find 	no 	basis 	upon 	which 	to 	conclude 	that 	the
presence 	of 	Article 	IX 	precludes 	a 	finding 	that 	the 	Association
waived 	its 	right 	to 	negotiate 	on 	changes 	in 	teachers' 	working
and 	instructional 	hours.
10To 	the 	extent 	that 	Article 	IX 	is 	at 	all 	ambiguous 	on
this 	point, 	its 	meaning 	was 	clarified 	by 	the 	uncontradicted
testimony 	of 	Dolinski 	that 	the 	purpose 	of 	the 	Article 	was 	to
deal 	with 	the 	limited 	scope 	of 	bargaining 	under 	EERA and 	to
give 	the 	Association 	the 	right 	to 	consult 	or 	confer 	on 	matters
outside 	the 	scope 	of 	negotiation.
19

The 	Association 	argues, 	fourth, 	that 	no 	waiver 	of 	its 	right
to 	negotiate 	regarding 	changes 	in 	instructional 	hours 	for
teachers 	can 	be 	found 	in 	the 	bargaining 	history 	because 	the
evidence 	presented 	related 	only 	to 	the 	1977-78 	bargaining,
ignoring 	differences 	between 	the 	1977-78 	and 	1980-82 	contracts,
and 	because 	the 	history 	presented 	does 	not 	show 	any 	clear 	and
conscious 	waiver 	on 	that 	subject.
The 	1977-78 	bargaining 	history may 	be 	relevant 	to 	explain
certain provisions 	of 	the 	1980-82 	contract 	to 	the 	extent 	that
those 	provisions 	are 	unchanged 	from 	the 	1977-78 	contract. 	In
this 	case, 	however, 	it 	is 	unnecessary 	to 	rely 	upon 	bargaining
history 	to 	establish 	a 	waiver 	of 	bargaining. 	Bargaining
history must 	be 	examined 	where 	a 	waiver 	is 	sought 	to 	be 	shown
by 	inference 	from 	general 	or 	ambiguous 	contract 	terms, 	or 	from
discussions 	at 	the 	bargaining 	table. 	See 	Los 	Angeles 	Community
College 	District, 	supra 	at 	12-16. 	Where 	a 	waiver 	is 	explicitly
embodied 	in 	the 	contract 	and 	is 	as 	unambiguous 	as 	here 	-
permitting 	the 	District 	to make 	changes 	in work 	schedules 	and
hours 	limited 	only 	by 	the 	restrictions 	expressed 	in 	Article
XII, 	the 	finding 	of 	waiver 	is 	based 	upon 	the 	contract 	language
rather 	than 	bargaining 	history.
Moreover, 	the 	bargaining 	history 	for 	the 	1977-78
negotiations 	which 	was 	presented 	does 	not 	detract 	in 	any way
from 	the 	finding 	of 	waiver 	based 	upon 	the 	express 	language 	of
20

the 	contract. 	Although 	the 	specific 	question of 	whether 	the
District 	had 	the 	authority 	to 	increase 	the 	working 	time 	or
instructional 	time 	of 	teachers 	was 	never 	explicitly discussed
in 	those 	negotiations, 	the 	record 	is 	clear 	that 	the 	parties
understood 	Article 	IV, 	section 	2(I) 	to 	give 	the 	District
authority 	over 	teachers' 	hours 	and 	that 	the 	Association
attempted, 	and 	the 	District 	agreed, 	to 	limit 	that 	authority 	to
the 	extent 	expressly 	stated 	in 	Article 	XII. 	If 	the 	Association
felt 	that 	other 	limits 	on 	the 	authority 	over 	teachers' 	hours
granted 	to 	the 	District 	were 	necessary, 	or 	if 	it 	wanted 	to
preserve 	its 	right 	to 	bargain 	over 	matters 	affecting 	hours 	not
specifically 	discussed, 	it 	should 	have 	declined 	to 	agree 	to 	the
language 	in 	Article 	IV making 	the 	limitations 	stated 	in 	Article
XII 	the 	only 	limitations 	on 	the 	District's 	authority on 	this
subject.
Finally, 	the 	Association 	argues 	that, 	despite 	the 	contract
language, 	the 	intention 	of 	the 	parties 	as 	evidenced 	by 	the
1980-82 	bargaining 	history, 	was 	that 	Article 	XII 	and 	the
additions 	thereto 	in 	1980 	were 	intended 	to 	preserve 	the 	status
quo 	regarding 	duties 	and 	hours 	of 	employment 	as 	it 	existed 	in
1979-80. 	Two 	Association 	negotiators 	testified 	that 	the
changes 	made 	to 	Article 	XII 	were 	intended 	to 	codify 	the
existing 	practice 	on 	those 	matters 	and, 	further, 	that 	the
parties 	agreed 	generally 	to 	preserve 	the 	status 	quo 	regarding
21

teachers' 	working 	hours 	in 	the 	1980-82 	contract. 	The 	District
negotiator, 	by 	contrast, 	testified 	that 	the 	District 	refused 	to
agree 	to 	the 	Association 	demand 	for 	a 	provision maintaining 	the
status 	quo 	regarding 	teachers' 	working 	hours. 	Instead 	the
District 	agreed 	to 	add 	the 	further 	specific 	limitations on
teachers' 	hours, 	for 	example, 	requiring 	a 	minimum 	amount 	of
preparation 	time, 	which 	appear 	in 	Article 	XII.
The 	express 	terms 	of 	the 	contract 	can 	only 	be 	varied 	by 	a
showing 	of 	mutual 	agreement 	to 	such 	variance. 	The
Association's 	evidence 	on 	this 	point 	certainly demonstrates
that 	it 	sought 	to 	preserve 	the 	status 	quo 	but 	does 	not
establish 	that 	the 	District 	agreed 	to 	do 	so with 	respect 	to 	any
terms 	except 	minimum 	preparation 	time 	and 	the 	timing 	of 	the
duty-free 	lunch, 	both 	of 	which 	were 	expressly 	incorporated 	in
the 	1980-82 	agreement. 	The 	provisions 	of 	the 	contract
therefore 	stand 	as 	written.
For 	all 	the 	reasons 	stated, 	I 	conclude 	that 	the 	Association
waived 	its 	right 	to 	bargain 	regarding 	changes 	in 	teachers'
instructional 	hours, 	within 	the 	limits 	of 	Article 	XII.
Therefore, 	the 	District 	did 	not 	violate 	sections 	3543.5(a), 	(b)
and 	(c) 	by 	unilaterally 	increasing 	instructional 	hours.
II. 	Reduction 	in 	Preparation 	Time 	of 	Sixth 	Grade 	Teachers
Article 	XII, 	section 2. 	of 	the 	1980-82 	contract 	provides
that 	teachers 	in 	grades 	6 - 	12 	shall 	have 	one 	period
(55 	minutes) 	of 	preparation 	time 	for 	each 	five 	periods 	taught,
22

which 	is 	effectively 	55 	minutes 	per 	day 	preparation 	time. 	When
the 	District 	moved 	the 	sixth 	grade 	from 	the 	intermediate 	school
level 	to 	the 	elementary 	level, 	the 	amount 	of 	preparation 	time
available 	to 	sixth 	grade 	teachers 	was 	reduced 	to 	90 	minutes 	per
week, 	the 	amount 	specified 	in 	the 	contract 	for 	elementary
school 	teachers. 	Although 	preparation 	time 	is 	indisputably a
matter 	within 	the 	scope 	of 	negotiation 	and 	the 	contract
embodied 	agreed-upon 	amounts 	of 	preparation 	time, 	the 	District
did 	not 	seek 	the 	Association's 	agreement 	to 	the 	change 	in
preparation 	time.11
The 	District 	advances 	several 	arguments 	for 	finding 	no
violation 	despite 	its 	unilateral 	action 	on 	this 	matter. 	Only
the 	first 	need 	be 	addressed 	since 	it 	by 	itself 	requires
dismissal 	of 	this 	allegation.12
llsince 	the 	parties 	had 	agreed 	that 	the 	1980-82 	contract
would 	be 	treated 	as 	continuing 	in 	effect 	until 	a 	new 	agreement
was 	reached, 	the 	District 	was 	bound 	by 	the 	preparation 	times
specified 	in 	the 	contract. 	It 	had 	an 	obligation 	not 	merely 	to
negotiate 	with 	the 	Association 	before 	implementing 	changes 	in
preparation 	time 	but 	also 	to 	obtain 	the 	consent 	of 	the
Association 	before 	making 	changes. 	C & 	S 	Industries 	Inc.
(1966) 	158 	NLRB 	454 	[62 	LRRM 	1043]; 	Oak 	Cliff-Golman Baking 	Co.
(1974) 	207 	NLRB 	1063 	[85 	LRRM 	1035]; 	Gorman, 	Basic 	Text 	on
Labor 	Law 	(1976) 	at 	pp. 	463-64.
12The 	District's 	other 	alleged 	defenses 	are: 	(1) 	the
contract 	was 	not 	breached 	because 	sixth 	grade 	teachers 	became
elementary 	school 	teachers 	upon 	transfer 	and 	thereafter
received 	the 	amount 	of 	preparation 	time 	contractually 	required
for 	elementary 	school 	teachers; 	(2) 	if 	there 	was 	a 	contract
violation, 	it 	did 	not 	constitute 	a 	change 	in 	policy 	and
therefore 	did 	not 	rise 	to 	the 	level 	of 	an 	unfair 	practice; 	and
(3) 	the 	sixth 	grade 	teachers 	participated 	in 	and 	some 	supported
the 	transfer 	to 	elementary 	school 	level 	and 	its 	accompanying
effects.
23

The 	District 	argues 	that 	no 	finding 	of 	an 	unfair 	practice
can 	be 	made 	regarding 	the 	change 	in 	sixth 	grade 	preparation
time 	since 	the 	underlying 	charge 	and 	complaint 	do 	not 	include
any 	allegation 	of 	a 	violation 	on 	that 	ground. 	According 	to 	the
District, 	the 	preparation 	time 	issue 	is 	not 	"related 	to 	the
specifically 	alleged 	violation" 	(Belridge 	School 	District
(12/31/80) 	PERB 	Decision 	No. 	157) 	or 	"intimately 	related 	to 	the
subject 	matter 	of 	the 	complaint" 	(Santa 	Clara 	Unified 	School
District 	(9/26/79) 	PERB 	Decision 	No. 	104), 	as 	required 	by 	PERB
precedent.
In 	the 	Belridge 	case, 	the 	Board 	permitted 	an 	unfair
practice 	finding 	on 	a 	fully-litigated 	but 	unalleged 	violation
where 	the 	evidence 	of 	the 	unalleged 	violation 	was 	admitted 	to
show 	the 	District's 	unlawful 	motivation 	for 	the 	alleged
violation 	of 	discriminatory 	discipline. 	The 	unalleged 	incident
occurred 	three 	days 	after 	the 	alleged 	incident. 	The 	Board 	found
that 	the 	unalleged 	violation 	was 	sufficiently 	related 	to 	the
allegations 	in 	the 	charge 	to 	permit 	a 	separate 	unfair 	practice
finding 	on 	it 	given 	that 	it 	had 	been 	fully 	litigated 	at 	hearing.
In 	Santa 	Clara 	the 	unalleged 	violations 	consisted 	of
discriminatory 	statements 	made 	to 	an 	employee 	in 	the 	course 	of
denying 	her 	a 	part-time 	teaching 	position 	because 	of her
protected 	union 	activity. 	Again, 	the 	statements 	were
admissible 	to 	establish 	unlawful 	motivation 	for 	the 	District's
24

acts 	on 	the 	alleged 	violation 	and 	were 	"intimately" 	connected
with 	the 	alleged 	violation.
By 	contrast, 	the 	Board 	has 	refused 	to 	permit 	unfair
practice 	findings 	on 	unalleged 	violations 	where 	the 	lack 	of
close 	relation 	between 	the 	alleged 	and 	unalleged 	violations
resulted 	in 	the 	Respondent 	not 	having 	had 	adequate 	notice 	that
it 	would 	be 	called 	upon 	to 	defend 	the 	unalleged 	violation,
particularly 	where 	an 	independent 	charge 	on 	the 	unalleged
matter 	was 	time-barred 	by 	the 	time 	of 	the 	hearing. 	~egents 	of
the 	University 	of 	California 	(UCLA) 	(12/21/82) 	PERB 	Decision
No. 	267. 	Similarly, 	in 	San 	Ramon 	Valley 	Unified 	School
District 	(8/9/82) 	PERB 	Decision 	No. 	230, 	the 	Board 	reversed 	an
administrative 	law 	judge's 	finding 	of 	a 	violation 	based 	upon
unalleged 	coercive 	statements 	which 	arose 	out 	of 	events
separate 	from 	those 	constituting 	the 	alleged 	violations. 	The
alleged 	statements 	were 	introduced 	as 	evidence 	of 	illegal
motive 	for 	the 	alleged 	violations, 	but 	there 	was 	no 	indication
at 	the 	hearing 	that 	a 	separate 	finding 	of 	an 	unfair 	practice
was 	sought 	based 	upon 	those 	statements. 	The 	Board 	concluded
that 	finding 	an 	unfair 	practice 	on 	that 	basis 	denied 	the
District 	"its 	right 	to 	be 	fully 	informed 	of 	charges 	brought
against 	it 	and 	to 	have 	a 	full 	and 	fair 	opportunity 	to defend
such 	charges." 	(Id. 	at 	10.)
25

In 	the 	instant 	case, 	the 	charge 	makes 	no mention of 	the
decrease 	in 	preparation 	time 	for 	sixth 	grade 	teachers 	or 	of 	the
District's March 	decision 	to 	transfer 	the 	sixth 	grade 	to 	the
elementary 	school. 	The 	charge 	is 	directed 	solely 	to 	the
increase 	in 	instructional 	time 	decided 	upon 	by 	the 	District 	in
July 	1982. 	It 	does 	not 	even 	address 	the 	additional 	increases
in 	instructional 	time 	to 	which 	sixth 	grade 	teachers 	were
subject 	due 	to 	the 	transfer.
Moreover, 	there 	was 	absolutely 	no 	mention 	of 	the 	increase
in 	preparation 	time 	during 	the 	Association's 	prima 	facie 	case.
The 	only 	specific 	reference 	to 	sixth 	grade 	teachers 	was 	brief
testimony 	on 	redirect 	examination 	of 	an 	Association 	witness
that 	sixth 	grade 	teachers 	had 	been 	subject 	to 	substantial
increases 	in 	instructional 	time 	because 	of 	their 	transfer 	from
intermediate 	to 	elementary 	level 	schools.
During 	the 	District's 	case, 	witness 	Facer 	did 	discuss 	the
nature 	of 	the 	s\xth 	grade 	change 	generally, 	and 	testified 	that
it 	had 	not 	been 	the 	subject 	of 	collective 	bargaining 	and 	that
it 	constituted 	a 	return 	to-an 	elementary 	school 	structure 	which
included 	the 	sixth 	grade, 	as 	it 	had 	existed 	prior 	to 	1978-79.
He 	also 	testified 	that 	because 	of 	the 	change, 	sixth 	grade
teachers 	were 	considered 	to 	be 	elementary 	school 	teachers 	in
1982-83. 	The 	only 	time 	the 	Association 	specifically 	confronted
the 	issue 	of 	the 	decrease 	in 	preparation 	time 	for 	sixth 	grade
teachers 	was 	in 	a 	brief 	exchange 	during 	cross-examination 	of
26

Facer 	in 	which 	he 	was 	asked 	how much 	preparation 	time 	sixth
grade 	teachers 	got 	in 	1982-83. 	He 	was 	then 	shown 	Article 	XII,
section 	2 	and 	was 	asked 	whether 	sixth 	grade 	teachers 	got 	the
amount 	of 	preparation 	time 	required 	by 	the 	contract. 	He
replied 	that 	they 	did 	not.
The 	Association 	argues 	that 	the 	preparation 	time 	change 	is
intimately 	related 	to 	the 	increase 	in 	instructional 	hours
because 	both 	changes 	were 	implemented 	at 	the 	same 	time 	at 	the
start 	of 	the 	1982-83 	school 	year 	and 	because 	the 	sixth 	grade
teachers 	in 	effect 	suffered 	a 	double 	loss 	from 	decrease 	in
preparation 	time 	and 	increase 	in 	instructional 	time, 	both 	of
which 	affect 	teachers' 	hours.
I 	conclude 	that 	neither 	the 	simultaneous 	implementation 	of
the 	two 	changes 	nor 	the 	fact 	that 	they 	both 	relate 	to 	hours 	of
teachers 	leads 	to 	the 	conclusion 	that 	the 	two 	are 	so 	intimately
related 	that 	the 	District 	was 	on 	fair 	notice 	of 	the 	unalleged
violation 	by 	the 	filing 	of 	the 	alleged 	violation. 	The 	decision
to 	make 	the 	sixth 	grade 	change 	was 	made 	several 	months 	before
the 	decision 	to 	increase 	instructional 	time, 	and 	only 	the
latter 	decision 	was 	the 	subject 	of 	the 	underlying 	charge. 	The
change 	in 	preparation 	time 	was 	not 	referred 	to 	in 	any way 	in
the 	charge, 	nor 	was 	it 	raised 	in 	the 	Association's 	prima 	facie
case. 	Nor 	did 	the 	District's 	opening 	statement 	indicate 	that
it 	had 	been 	able 	to 	anticipate 	during 	the 	hearing 	that 	the
preparation 	time 	change 	was 	at 	issue.
27

Although 	there 	was 	some 	limited 	testimony on 	the
preparation 	time 	change, 	the 	matter 	was 	by 	no means 	fully
litigated. 	No 	evidence 	was 	introduced 	by 	either 	party
regarding 	the 	reasons 	for 	the 	differences 	in 	preparation 	time
of 	elementary 	versus 	grades 	6-12 	teachers 	and 	which 	measure 	of
preparation 	time 	should 	control 	when 	the 	two 	groups 	overlap.
Nor 	was 	there 	any 	evidence 	regarding 	the 	feasibility 	of
requiring 	one 	period 	per 	day 	preparation 	time 	for 	the 	sixth
grade 	at 	the 	elementary 	school 	level. 	In 	fact, 	the 	only
evidence 	on 	the 	point 	is 	the 	bare 	fact 	that 	sixth 	grade
teachers 	got 	less 	preparation 	time 	in 	1982-83.
Finally, 	the 	Association 	did 	not 	indicate 	at 	any 	time
during 	the 	hearing 	that 	it 	would 	seek 	an 	unfair 	practice
finding 	on 	the 	preparation 	time 	change. 	It 	made 	that 	argument
for 	the 	first 	time 	in 	its 	post-hearing 	brief. 	Moreover, 	a
charge 	raised 	initially 	at 	the 	time 	of 	the 	hearing 	would 	have
been 	barred 	by 	the 	section 	3541.S(a) 	six-month 	statute 	of
limitations 	since 	the 	hearing 	was 	held 	more 	than 	six 	months
after 	both 	the 	decision 	to 	transfer 	the 	sixth 	grade 	and 	the
implementation 	of 	that 	decision 	in 	September. 	Although 	the
District 	did 	anticipate 	the 	Association's 	allegation on 	this
point 	in 	its 	brief, 	no 	inference 	can 	be 	drawn 	therefrom 	that
the 	matter 	was 	fully 	·litigated or 	that 	the 	District 	had
adequate 	notice 	to 	defend 	on 	the 	issue 	at 	hearing.
28

I 	conclude, 	therefore, 	consistent 	with 	the 	UCLA and 	San
Ramon 	cases 	cited 	above, 	that 	no 	finding 	of 	an 	unfair 	practice
can 	be 	made 	based 	upon 	the 	unalleged 	reduction 	in 	preparation
time 	of 	sixth 	grade 	teachers. 	To 	do 	so would 	deny 	the 	District
"its 	right 	to 	be 	fully 	informed 	of 	the 	charges 	brought 	against
it 	and 	to 	have 	a 	full 	and 	fair 	opportunity 	to 	defend 	such
charges." 	(Id. 	at 	p. 	10.)
I 	therefore 	dismiss 	the 	allegation, 	raised 	in 	the
Association's 	brief, 	that 	the 	change 	in 	preparation 	time
constituted 	a 	violation 	of 	section 	3543.S(a), 	(b) 	and 	(c).
PROPOSED ORDER
Based 	upon 	the 	finding 	of 	fact, 	conclusions 	of 	law, 	and 	the
entire 	record, 	the 	unfair 	practice 	charge 	filed 	by 	the 	La
Canada 	Teachers 	Association, 	CTA/NEA against 	the 	La 	Canada
Unified 	School 	District 	and 	subsequent 	complaint 	are 	hereby
DISMISSED 	in 	their 	entirety.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on 	August 	30, 	1983, 	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
29

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
August 	30, 	1983, 	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 	shall 	be 	filed 	with 	the 	Board 	itself. 	See 	California
Administrative 	Code, 	title 	8, 	part 	III, 	section 	32300 	and 	32305.
Dated: 	August 	10, 	1983
30
~~~~Marian 	Kennedy
Administrative 	Law 	Judge