Modesto City Schools and High School District (PERB 0552E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO 	TEACHERS 	ASSOCIATION.
CTA/NEA.
Charging 	Party.
v.
MODESTO 	CITY 	SCHOOLS 	AND HIGH
SCHOOL DISTRICT.
Respondent.
Case No. 	S-CE-736
PERB Decision No. 	552
December 20,. 1985
Appearance: 	Kenneth W. 	Burt 	II 	for Modesto Teachers
Association. 	CTA/NEA.
Before Hesse, 	Chairperson; 	Jaeger. 	Morgenstern and Burt, 	Members
DECISION
BURT, 	Member: 	This 	case 	is 	before the Public Employment
Relations 	Board 	(PERB or 	Board) 	on appeal 	by the Modesto
Teachers Association. 	CTA/NEA 	(Association) 	of 	a Board 	agent's
partial 	dismissal 	of 	its 	charge 	that 	the Modesto 	City Schools
and High 	School 	District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA) 	section 	3543.5 l 	by. 	inter
1EERA 	is 	codified 	at Government 	Code 	section 	3540 	et
seq. 	All 	references 	are 	to 	the Government 	Code unless
otherwise 	specified.
Section 	3543.5 	provides 	that:
It 	shall 	be unlawful 	for 	a 	public 	school
employer 	to:
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alia, 	unilaterally 	increasing unit members' 	hours 	and workload
when 	it 	reduced 	the 	number 	of 	department 	chairpersons 	at Downey
High School 	from 	14 	to 	10 	and 	by eliminating 	the 	extra
preparation 	period 	for 	the 	English 	department 	chairperson 	at
that school.2
After 	reviewing 	the 	entire 	record, 	we 	reverse 	the 	dismissal
consistent with 	the 	discussion 	below.
(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.
(d) 	Dominate or 	interfere with the
formation 	or 	administration 	of 	any employee
organization, 	or 	contribute financial 	or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join any organization 	in
preference 	to another.
(e) 	Refuse 	to 	participate 	in good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
2A 	complaint 	issued 	on 	an 	additional 	allegation 	of
unlawful 	unilateral 	change 	based 	on 	the 	District's 	eliminating
an 	extra 	preparation 	period 	for 	the 	Downey 	social 	sciences
chairperson. 	See Modesto 	City Schools 	and High School 	District
(1985) PERB Decision No. 	541.
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FACTUAL 	AND 	PROCEDURAL 	SUMMARY
In 	its 	first amended 	charge,3 the Association alleges
that 	prior 	to 	September 	1983, 	Downey High 	School 	had 	14
departments, 	each with a chairperson. 	In September 	1983, 	the
District 	reduced 	the 	number 	of 	chairpersons 	at Downey to 	10.
This 	reduction was 	accomplished 	by: 	(1) 	combining boys' 	and
girls' 	physical 	education departments; 	(2) 	eliminating the
music 	department chairperson position; 	(3) 	combining 	the
industrial 	education, 	agriculture, 	and homemaking departments
and 	the Regional 	Occupational 	Programs 	(ROP) 	in construction
and homemaking 	into 	one department; 	(4) 	expanding the 	special
education department 	to 	include 	the pregnant minors' 	program
and 	the 	infant 	toddlers' 	program; 	and 	(5) 	expanding the
business department to 	include drivers' 	education, 	work
experience 	education, 	career 	center 	ROP 	and 	career 	planning.
The Association 	further 	alleges 	that 	the 	duties 	of
department chairpersons 	include, 	inter 	alia, 	planning
departmental 	assignments, 	developing and 	implementing a 	budget,
coordinating 	and 	assisting 	substitutes, 	and 	arranging 	and
conducting departmental 	meetings. 	The Association alleges
3A second 	amended 	charge, 	filed May 4, 	1985, 	was 	untimely
filed. 	Thus, 	our 	determination 	is 	based 	solely on the
allegations 	contained 	in 	the 	original 	charge 	and 	the 	first
amended 	charge.
3
W	
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that, 	with one 	exception.4 The 	assigned 	duties 	of 	14
chairpersons 	have 	not 	changed 	except 	that 	they must 	now be
accomplished 	by 	10 	chairpersons.
The 	reduction 	in the 	number 	of 	chairpersons was 	alleged 	to
violate 	the District's 	duty to 	bargain 	in that 	the 	basis 	of 	the
chairpersons' 	negotiated 	compensation was 	changed 	and 	the
hours, 	responsibilities 	and workload 	of 	the 	chairpersons were
unilaterally 	increased 	by 	the 	District's 	merger 	of
departments. 	The Association alleges 	that 	there was 	a 	past
practice 	of 	having 	14 	chairpersons 	and 	that 	language 	in the
parties' 	agreement5UT was 	included 	to 	provide 	for 	extra
compensation for 	chairpersons 	of 	separate departments, 	not
combinations 	of 	disciplines.
4 In 	the music 	department, 	the members 	of 	the 	department
are 	now expected 	to 	carry out 	the 	former 	chairperson's 	duties.
5This 	contract 	provision provides 	in pertinent 	part:
EXTRA 	DUTY 	STIPENDS
d. 	Department 	Chairperson
Percent 	Amount
5 	or 	less 	5 	$ 	645
6 	to 	10 	6 	774
11 	or more 	8 	1.032
(part-time 	equivalent 	shall 	count
as 	part-time members 	in a
department) . . .
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The Association also 	alleges 	that 	in the 	last 	14 years, 	the
chairperson 	of 	the 	English 	department 	received 	an 	extra
preparation period 	to carry out 	the 	chairperson's 	duties. 	It
further 	alleges 	that 	this 	extra 	preparation 	period 	was 	partial
compensation 	for 	that 	chairperson 	and 	was 	unilaterally
eliminated 	by 	the District 	in 	September 	1983. 	The Association
indicates 	that 	this 	extra 	preparation period 	appears 	to 	have
been 	restored 	later 	in 	the year.
The 	regional 	attorney 	found 	that 	the 	Association 	had 	failed
to 	state 	a 	prima 	facie 	case 	and 	thus 	dismissed 	the 	above
charges. 	He 	stated 	that 	the Association had 	failed 	to
demonstrate 	that 	the 	new duties 	assigned 	the 	chairpersons 	were
not 	reasonably 	comprehended 	within 	the 	scope 	of 	the 	existing
duties. 	He 	also 	indicated 	that 	the Association had 	failed 	to
support 	its 	allegation that 	the 	chairpersons' 	hours 	and
workload 	were 	increased 	with 	sufficiently 	specific 	evidence.
Moreover, 	he said, 	if 	the chairpersons' 	hours and workload were
shown to 	have 	increased, 	it was 	because 	there were more
teachers 	under 	each 	chairperson's 	supervision 	and 	the
negotiated 	contract 	adequately 	provided 	for 	that 	eventuality.
Thus, 	no unlawful 	unilateral 	change 	in policy had 	been shown.
The 	regional 	attorney 	dismissed 	the 	charge 	based 	on 	the
District's 	elimination of 	the 	extra 	preparation period 	for 	the
English 	department 	chairperson 	because 	the 	change 	affected 	a
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single 	individual 	for 	a 	limited 	period 	of 	time 	and 	the
Association 	had 	therefore 	failed 	to 	show a 	change 	in 	policy.
On appeal, 	the Association argues 	that whether 	the
resulting 	increases 	in chairpersons' 	hours 	and workload 	are
matters 	reasonably 	comprehended 	within 	their 	existing 	duties
depends 	on the 	intent of 	the 	parties, 	which 	is 	something to 	be
determined after 	a 	hearing. 	Further, 	the Association claims
that 	the 	regional 	attorney 	erred 	in finding 	that 	the
combination 	of 	new areas 	into 	existing 	departments was
equivalent 	to 	an 	increase 	in the 	number 	of 	persons 	in a
department. 	The Association maintains 	that 	combining
disciplines 	within a 	single 	department 	increases 	the 	hours 	and
workload 	of 	the 	chairperson more 	than merely adding 	additional
teachers 	for 	the chairperson to 	supervise. 	In addition, 	the
Association again points 	to 	the music 	department, 	where 	the
chairperson's 	position was 	eliminated, 	but where 	the 	same 	tasks
are 	now expected 	to 	be 	performed 	by 	the 	members 	of 	the
department 	without 	additional 	compensation.
In 	regard 	to 	the 	charge 	based 	on 	the District's 	elimination
of 	the 	extra 	preparation 	period 	for 	the 	English 	department
chairperson, 	the Association states 	that 	the 	only difference
between 	this 	charge 	and 	the 	charge 	on which a 	complaint 	issued
is 	the 	amount 	of 	time 	involved. 	The Association argues 	that
whether 	or 	not 	that 	amount 	of 	time 	is 	de minimus 	should 	be 	left
to 	an administrative 	law 	judge 	to 	decide 	after 	a 	hearing.
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DISCUSSION
The 	only 	issue 	here 	is 	whether 	sufficient 	facts 6 were
alleged 	to 	state 	a 	prima 	facie 	case 	of 	unlawful 	unilateral
change. 	To 	state 	such a 	prima 	facie 	case, 	the Association must
allege 	facts 	indicating 	that 	action was 	taken which 	changed 	the
status 	quo 	regarding a matter within the 	scope 	of
representation without 	giving 	the 	exclusive 	representative
notice and opportunity to 	bargain, 	or, 	if 	negotiations 	have
occurred, 	that 	the matter was 	not 	negotiated 	to 	agreement 	or
through 	impasse 	prior 	to 	implementation of 	the 	change.
San Francisco 	Community College District 	(1979) 	PERB Decision
No. 	105. 	We have also 	indicated 	that 	to 	be unlawful, 	the
change must 	amount 	to a 	change 	in 	policy having 	either 	a
generalized 	effect 	or 	a 	continuing 	impact 	on 	the 	matter 	within
scope 	of 	representation. 	Grant 	Joint Union High School
District 	(1982) 	PERB Decision No. 	196.
In the 	instant 	case, 	we 	read 	the Association's 	charge 	to
contain an allegation that, 	by 	reducing 	the 	number 	of
chairpersons, 	the District unlawfully changed 	the wages 	and
hours 	of 	the 	10 	remaining chairpersons. 	While not well
6 In 	reviewing 	dismissal 	of 	a 	charge 	for 	failure 	to 	state
a 	prima 	facie 	case, 	the 	allegations 	in the 	charge 	are 	presumed
to 	be 	true. 	San Juan Unified 	School District 	(1977) 	EERB
Decision No. 	12. 	(Prior 	to January 1, 	1978, 	PERB was 	known as
the 	Educational 	Employment 	Relations 	Board.)
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detailed, 	we 	find 	the allegations 	are 	sufficient 	to 	state 	a
prima 	facie 	case 	and, 	therefore, 	direct 	that a 	complaint 	issue
as 	to 	this 	charge. 	Contrary to 	the 	regional attorney's,
determination, 	we 	find 	that whether 	or 	not 	the 	parties 	intended
the 	extra 	stipend 	provision of 	the 	contract 	to 	apply 	to
situations 	involving 	a 	merger 	of 	different 	disciplines 	within a
single department 	is 	a question to 	be determined 	after 	a
hearing.
We 	also 	hold 	that 	the 	allegation 	concerning 	the 	elimination
of 	the 	English 	department 	chairperson's 	extra 	preparation
period 	states 	a 	prima 	facie 	case 	and we 	reverse 	the 	regional
attorney's 	determination on that 	matter. 	The 	fact 	that 	this
action 	of 	the District 	affected 	only 	one 	person 	for 	a 	limited
period 	of 	time 	does 	not 	preclude 	it 	from being a 	change 	in
policy, 	especially as 	it 	is 	clear 	from the 	complaint 	that
issued 	that 	it was 	not an 	isolated 	case. 	In fact, 	it appears
to us 	that 	the District's 	elimination 	of 	both extra 	preparation
periods was 	part 	and 	parcel 	of 	a 	general 	reorganization of 	the
department 	chairpersons 	and 	thus 	had 	a 	generalized 	effect.
However, 	we 	take administrative 	notice 	of 	the 	factual
finding 	of 	the 	administrative 	law 	judge 	(ALJ) 	who 	heard 	that
portion of 	the 	instant 	charge 	that 	proceeded 	to 	a 	hearing. 	He
found 	there 	to 	be 	no 	uniform district-wide 	policy for
determining which, 	if 	any, 	department 	chairpersons would
receive 	a 	second 	preparation 	period. 	Since we 	have 	affirmed
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the ALJ's 	proposed 	decision 	in Modesto 	City Schools 	and 	High
School District, 	supra, 	an evidentiary hearing may not 	be
necessary here 	to 	consider 	the 	past 	practice as 	to 	the 	English
department 	chairperson.
-
ORDER
On 	the 	basis 	of 	the 	foregoing Decision and 	the 	record 	as 	a
whole, 	it 	is 	hereby ORDERED that 	the 	regional 	attorney's
partial 	dismissal 	of 	the 	charges 	in Case No. 	S-CE-736 	is
REVERSED and 	the 	charges 	discussed 	here 	are 	REMANDED 	to 	the
general 	counsel 	for 	issuance 	of 	a 	complaint 	and 	appropriate
further 	proceedings.
Members 	Jaeger 	and Morgenstern 	joined 	in 	this 	Decision.
Chairperson Hesse's 	concurrence 	and 	dissent 	begins 	on page 	10.
99

Hesse, 	Chairperson, 	concurring and dissenting: 	I dissent
from the reversal of 	the dismissal. 	As 	the majority notes, 	the
Association 	filed a second amended charge, 	one 	that 	was 	not
timely 	filed. 	Yet, 	much of 	the basis 	for 	the allegation that
combining departments 	created an 	increase 	in 	the amount 	of 	work
time 	for 	chairpersons 	is 	contained 	in 	that 	untimely charge.
Thus, 	I find that, 	on the basis of the timely charge, 	the
Association did 	not 	articulate 	a prima 	facie 	case.
Furthermore, 	I do not believe that 	the Association pled
that 	the 	combining 	of 	the 	departments 	differed 	materially 	from
merely 	increasing 	the 	size of 	the departments, 	a subject 	that
had 	been 	negotiated.
I 	concur 	that 	the decision 	in Modesto City Schools 	and 	High
School District 	(1985) 	PERB Decision No. 	541, 	is dispositive of
the question concerning 	the 	elimination of 	the 	English
Department 	chairperson's 	extra 	preparation period.
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