Victor Valley Community College District (PERB 0570E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTOR VALLEY 	COMMUNITY 	COLLEGE,
CTA/NEA, 	CHAPTER #375,
Charging 	Party,
v.
VICTOR VALLEY 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-1925
PERB 	Decision 	N O . 	570
May 	2, 	1986
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Appearances: 	Charles R. 	Gustafson, 	Attorney for Victor Valley
Community college, CTA/NEA, 	Chapter #375; 	Atkinson, Andelson,
Loya, 	Ruud 	& 	Romo by Ronald C. 	Ruud 	for 	Victor Valley Community
College 	District.
Before Morgenstern, 	Burt and Craib, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before the Public
Employment 	Relations 	Board 	(PERB 	or 	Board) 	on 	exceptions 	filed by
Respondent, 	Victor Valley Community College 	District 	(District),
to 	a proposed decision by a PERB administrative 	law 	judge 	(ALJ).
The 	ALJ 	found 	that 	the 	District 	violated 	section 	3543.5(c) 	of 	the
Educational 	Employment 	Relations 	Act 	(EERA)1 by 	unilaterally
increasing 	the 	threshold 	for 	overload 	(overtime) 	pay 	from 	30 	to 	31
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the Government Code.
Section 3543.5 	provides, 	in pertinent part:
'

annualized 	teaching 	hours. 	The 	dispute 	centers 	on 	the 	District's
interpretation 	of 	the 	parties' 	1981-84 	collective 	bargaining
agreement 	(Agreement), 	charging Party, 	Victor Valley Community
College, 	CTA/NEA, 	Chapter 	#375 	(Association), maintains 	(and the
ALJ 	agreed) 	that 	the 	District's 	interpretation 	is 	a 	"hidden" 	one
which 	was 	not 	revealed 	during 	negotiations 	and 	which 	is 	unrelated
to 	the 	express 	purpose 	of 	the 	operative 	provisions. 	The 	District
maintains 	that 	the Agreement 	clearly provides 	that 	the 	overload
threshold 	is 	31 	hours. 	The 	District 	also 	contends 	that 	the
charge was 	untimely filed. 	For 	the 	reasons 	that 	follow, 	we
reverse 	the 	finding of 	a violation 	and 	dismiss 	the 	charge.
FACTUAL 	SUMMARY
Prior 	to 	the 	effective 	date of 	the 	1981-84 	Agreement, 	overload
pay was 	governed by Policy No. 	4141.l(d) 	of 	the District's
personnel 	policies. 	This 	section states, 	in pertinent part:
When 	extra 	lectures 	or 	laboratory 	classes
are 	assigned 	over 	and 	beyond 	the 	recognized
full-load 	assignment 	as 	provided 	for 	in
Policy No. 	4115, 	Full-time Personnel
Assignment, 	the 	instructor 	shall 	be
reimbursed 	at 	the 	percentage 	of 	overtime
applied 	to 	his 	regular 	ten-month 	teaching
salary. 	Overtime 	shall 	be 	computed 	on 	an
annual 	basis 	with 	overtime 	payment 	being
made 	during 	the 	spring 	semester.
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(c) 	Refuse 	or 	fail 	to meet and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative,
2
• 	• 	• 	• 	• 	• 	• 	•
2

Policy No. 	4115 	defined a 	full-time 	personnel 	assignment 	as 	15
lecture 	hours, 	25 	laboratory hours 	or 	the 	equivalent per 	semester.
The 	testimony 	reflected 	that 	the 	above 	policies 	had 	not 	been
formally 	rescinded as 	of 	the 	time 	of 	hearing, 	but Article XI 	of
the 	1981-84 	Agreement 	appears 	to 	supersede 	the 	relevant 	provisions
of 	these policies. 	Article XI states, 	in pertinent part:
ARTICLE XI: 	HOURS AND WORKING 	CONDITIONS
A) 	Faculty 	Teaching Assignments
1) 	The 	full-time 	faculty 	assignment
shall 	be 	for 	177 	days 	for 	a 	minimum of 	forty
(40) 	hours 	per week. 	The 	teaching portion
of 	this 	assignment 	will 	be 	fifteen 	(15)
hours of 	lectures, 	twenty 	(20) 	hours of
individualized 	instructional 	laboratory,
tor] 	twenty-five 	(25) 	hours of laboratory in
1981-82 	and 	twenty-four 	(24) 	hours 	of
laboratory 	in 	1982-83 	and 	1983-84. 	An hour
of 	instruction 	defined 	in 	Ed. 	Code 	section
84527. 	In 	lieu 	of a 	full-time 	teaching
load, 	the 	instructor 	may be 	assigned other
duties 	by 	the 	district. 	The 	remaining 	time
will 	be 	spent 	in: 	preparation 	and evaluation
of 	course 	work, 	assisting with 	student
activities, 	office hours, 	committee work,
attending 	college-related meetings, 	or 	other
such 	duties 	as 	may be 	mutually agreed 	upon.
3) 	A 	full-time 	teaching 	assignment 	will
be 	29-31 	equated hours 	of 	instruction a 	year.
When 	the 	teaching 	assignment 	falls 	below 	this
load, 	the 	employee's 	schedule will 	be
adjusted 	to 	equate 	to 	a 	58-62 	hour 	load 	over
a 	two-year 	period. 	Hours 	in 	excess 	of 	the
equation 	as 	set 	forth 	in 	this 	section 	shall
be 	an 	overload.
The Agreement was 	signed on November 	9, 	1981. 	Beginning 	in
the spring of 	1982, 	and again 	in 	1983 	and 	1984, 	the District
granted 	overload 	pay 	only when 	a 	faculty 	member 	had 	worked 	more
3
• 	• 	• 	• 	• 	• 	• 	• 	•
3

than 	31 	annualized 	teaching 	hours.2 The 	District 	used 	30 	hours
as 	the 	load benchmark, 	equated 	to 	1.0. 	While 	formerly any 	load
greater 	than 	1.0 	triggered 	extra 	pay, 	beginning 	in 	the 	spring 	of
1982, 	a 	load 	greater 	than 	1.033 	(31/30) 	was 	required. 	The most
complete 	evidence 	showing 	the 	effect 	of 	the 	new 	threshold was 	of
the 	1983-84 	year, 	in 	that year, 	6 	instructors 	received overload
pay, 	while 	15 	more 	would 	have 	if 	1.0 	were 	used as 	the 	threshold
amount. 	Of approximately 61 	to 67 	certificated employees, 	only
52 	were 	subject 	to overload, 	due 	to sabbaticals, 	sick 	leave or
special 	assignments.
The 	dispute 	over 	Article XI 	was 	precipitated 	by 	the 	filing
of 	a 	grievance by Richard Powell, 	a member 	of 	the Association's
1981 	bargaining 	team. 	Powell's 	grievance, 	filed on or 	about
March 	10, 	1983, 	stated that 	his 	overload pay was 	improperly
calculated. 	From 1980-81 	to 1983-84, 	Powell's 	loads were as
follows:
1980-81 	1981-82 	1982-83 	1983-84
1.014 	1.014 	1.0333 	1.0333
While Powell 	received 	overload pay 	in 	the 	spring of 	1981, 	he
received none 	in 	1982. 	in 	1983, 	due to a 	rounding-off error, 	he
2Laboratory 	hours 	are 	equated 	to 	lecture 	hours 	in 	a 	24 	to
15 	ratio 	(25 	prior 	to the 	1982-83 year). 	For example, 	if an
instructor 	had 	15 	lecture 	hours 	in 	the 	fall 	semester 	and 	24
laboratory hours 	in 	the spring, 	the 	annual 	total would be 	30.
Similarly, 	if 	an 	instructor 	had 8 	lecture hours 	and 	11 	laboratory
hours 	in 	the 	fall, 	and 7 	lecture hours 	and 	13 	laboratory hours
in 	the 	spring, 	the annual 	total would again be 30.
A4

received 	a 	small 	amount, 	which 	he 	grieved 	as 	too 	low. 	In 	1984,
he 	received 	none.
Powell's 	grievance was 	accepted 	and processed, 	and was
unresolved on 	November 	3, 	1983 	when, 	at 	a 	regular meeting
between 	District 	and Association 	representatives, 	the parties
discussed 	their 	differing 	interpretations 	of 	Article XI. 	The
Association 	insists 	that 	this 	was 	the 	first 	time 	it 	was 	aware
that 	Powell's 	grievance 	involved 	conflicting 	interpretations,
and 	not 	merely 	a 	computation 	error.3 The 	underlying 	unfair
practice 	charge 	was 	filed 	by 	the Association 	on 	February 	14,
1984 	on 	behalf 	of 	all 	employees 	affected 	by 	the 	change 	in 	the
overload 	threshold 	from 30 	to 	31 	hours.
The 	1981 	Negotiations
The 	parties 	began 	negotiations 	on 	the 	1981-84 	Agreement 	in
late January 	1981. 	In 	early April, 	the 	parties 	first 	discussed
the 	issue 	of 	overload 	hours. 	The 	District 	suggested an 	increase
from 	15 	to 	18 	lecture hours 	as 	the normal 	load standard, 	though
this 	appeared 	to 	be 	merely an 	opening position 	that 	was 	not
vigorously advocated. 	The Association, 	on 	the other 	hand,
seriously 	advocated 	a 	decrease 	in 	the 	ratio 	of 	laboratory 	hours
to 	lecture hours 	from 25-15 	to 20-15. 	Further, 	the parties
agreed 	to 	the 	concept 	of 	allowing 	the 	District 	to average 	loads
33while	while 	the 	extent 	of 	the Association's 	participation 	in
the 	grievance prior 	to November 	3 	is 	unknown, 	the parties'
Agreement 	requires 	that 	the Association 	be 	given 	a 	copy of 	the
grievance 	and 	of 	the 	resolution 	at 	each 	level 	of 	the 	grievance
procedure. 	Employees may, 	however, 	present 	their 	grievances
directly 	to 	the 	District.
5

over 	two years. 	This 	was 	designed 	to 	avoid 	the possibility 	of
an 	instructor 	working 	less 	than 	a 	full 	load 	one year, 	at 	full
pay, 	yet 	receiving 	overload 	pay 	for 	working more 	than 	a 	full
load the next.4A
The 	parties 	continued 	to 	discuss 	the 	two-year 	averaging
concept 	and exchanged 	counterproposals. 	on May 	14, 	1981, 	the
Association 	agreed 	to 	a provision 	consisting 	of 	the 	first 	two
sentences 	of what was 	eventually adopted as paragraph A - 3 	of
Article XI. 	However, 	the 	agreement was 	contingent 	upon 	the
District 	adding 	a 	sentence 	that 	would 	guarantee 	immediate
payment 	for 	an 	overload where 	there 	had 	not 	been 	an 	underload
the 	previous 	year. 	This 	would 	prevent 	the 	District 	from
avoiding 	overload 	pay 	altogether 	by 	simply 	reducing 	an
instructor's 	load 	the 	next year 	to meet 	the 	two-year 	limit. 	On
May 28, 	the 	District 	presented a 	revised version 	of 	paragraph
A-3 	in 	order 	to 	address 	the Association's 	concerns. 	Generally,
the Association was 	satisfied, 	and this 	is 	the 	language 	that
appears 	in 	the 	signed agreement. 	Very 	late 	in 	the 	negotiations,
the 	parties 	agreed 	to 	reduce 	the 	ratio 	of 	laboratory 	hours 	to
lecture hours 	from 25-15 	to 24-15, 	beginning with 	the 	1982-83
year.
4That would 	result 	if, 	for 	example, 	an 	instructor 	had 27
hours 	the 	first 	year 	and 	33 	the 	second. 	The 	inequity becomes
apparent 	when 	one 	considers 	that 	an 	instructor 	teaching 	30 	hours
each 	of 	the 	two 	years 	would 	receive 	no 	overload 	pay.
6
4
6

In essence, 	the 	dispute 	herein 	is whether 	paragraph A-l 	or
paragraph 	A-3 	defines 	the 	threshold 	for 	overload 	pay. 	The
Association 	maintains 	that 	paragraph 	A-3 	was 	designed 	only 	to
allow 	the 	District 	to 	average 	loads 	over 	two years 	in 	certain
circumstances, 	and 	that 	a 	change 	in 	the 	overload 	threshold was
not 	discussed. 	The 	District 	maintains 	that 	the 	plain 	language
of A-3 	clearly 	defines 	the 	overload 	threshold as 	31 	hours, 	and
that 	the 	Association 	was 	fully 	aware 	of 	the 	ramifications 	of 	the
provision.
Janet 	Bird, 	a member 	of 	the negotiating team, 	was 	the only
witness 	presented 	by 	the 	Association 	who 	testified 	concerning
the 	negotiations, 	AS 	a 	librarian, 	Bird was not eligible 	for
overload 	payments 	nor 	personally 	affected 	by 	the 	definition 	of 	a
full-time 	teaching 	assignment. 	Bird 	testified 	that 	she 	attended
all of 	the 1981 	negotiating sessions, 	but the District's 	notes55
reflect 	that 	she was 	present at only 9 	of 	the 20 	sessions.
However, 	she 	did 	attend 	the 	crucial 	sessions 	in 	May. 	In 	response
to 	being 	confronted with 	the 	District's 	notes, 	Bird 	commented
that 	her 	memory was 	not as 	good as 	she 	thought 	it was. 	Bird
could 	not 	recall 	seeing paragraph A - 3 	in writing prior 	to
5 At 	all 	of 	the 	negotiation 	sessions, 	the 	District 	had 	a
representative whose 	role was 	to 	take 	notes. 	The notes were
placed 	into 	evidence 	after 	the 	author 	of 	most 	of 	them,
Marguerite 	Lough, 	testified about 	them. 	The 	notes 	are 	not
verbatim, 	but 	reflect 	synopses 	of 	the 	main 	substantive 	issues
discussed 	and 	their 	resolutions.
7
5
7

reading 	it 	in 	the 	ratified 	Agreement.6 She 	also 	admitted 	that
she 	did 	not 	read 	the 	entire 	Agreement 	prior 	to 	its 	execution.
Bird 	testified 	that 	she 	recalled 	the 	language 	of 	what 	became
paragraph 	A - 3 	being 	discussed 	only 	in 	the 	context 	of 	giving 	the
District 	the 	flexibility 	to 	average 	loads 	over 	two 	years. 	she
did 	not 	recall 	any 	discussion 	of 	a 	change 	in 	the 	overload
threshold 	from 30 	to 	31. 	She did assert 	that Richard Powell7
expressed 	concern 	that 	overload 	would 	continue 	to 	be 	interpreted
in 	the 	same manner, 	that 	is, 	anything over 	30. 	Bird claimed
that 	James 	Hvilsted 	replied 	by 	telling 	Powell 	that 	he 	was 	overly
concerned, 	and 	that 	the 	District's 	only 	intent was 	to 	have 	the
flexibility 	to 	apply 	overload 	over 	a 	two-year 	period. 	Bird
recalled 	that 	there 	were 	extensive 	discussions 	over 	the
definition 	of 	a 	full-time 	assignment 	in 	paragraph A-l.
The 	District 	offered 	the 	testimony of 	two of 	its 	negotiators,
Charles 	Peterson 	and 	James 	Hvilsted. 	Peterson 	and Powell
carried 	the 	bulk 	of 	the 	discussion 	for 	their 	respective 	parties
concerning 	the 	adoption 	of 	paragraph 	A-3. 	Peterson 	testified
6Documentary 	evidence 	reflects 	that 	written 	proposals 	were
exchanged which mirrored the final 	language of paragraph A - 3 .
7Powell 	was 	not 	called 	to 	testify by 	either 	party. 	No
explanation 	was 	given. 	The ALJ 	did 	not 	draw 	any 	inference 	from
Powell's 	failure to testify, 	nor 	do we. 	This 	is 	consistent with
judicial 	interpretations 	of 	California 	Evidence 	Code 	section 	412,
which 	hold 	that 	no 	adverse 	inference 	should 	be 	drawn when 	a
material 	witness 	who 	does 	not 	testify 	could 	have 	been 	called 	by
either 	party. 	See, 	e.g., 	Patton 	v. 	Royal 	industries, 	Inc. 	(1968)
263 	Cal.App.2d 	760. 	There 	was 	no 	indication 	that 	Powell was
unavailable 	to 	be 	called 	by 	the 	District.
7
8

that 	the 	initial 	discussions 	dealt 	only with 	the 	District's
desire 	for 	the 	flexibility 	to 	average 	loads 	over 	a 	two-year
period. 	However, 	Peterson maintained that, 	once 	the 	District
had presented 	its 	proposal 	in 	May 	calling 	for 	29-31 	hours, 	the
subject 	of 	overload 	threshold 	was 	discussed.
Peterson 	initially 	testified 	that 	he 	expressly 	mentioned 	to
the Association that, 	under 	the 	District's 	proposal, 	the
overload 	threshold would be 	31. 	However, 	on 	cross-examination,
he 	backed 	off 	from 	that 	testimony 	somewhat, 	claiming 	that 	he
could 	not 	specifically 	recall 	what 	he 	said, 	but 	that 	he was
certain 	the 	issue was 	discussed. 	Further, 	he maintained 	that
the 	change 	from 30 	to 	31 	hours 	was 	clear 	from the 	language 	of
the 	proposal 	and 	that 	the Association 	had 	no 	objections. 	He
also 	asserted 	that 	he 	and 	Hvilsted 	had 	discussed 	privately
during 	the 	negotiations 	that 	the 	proposed 	language 	would 	raise
the 	threshold 	to 	31.
Peterson 	confirmed 	that 	Powell 	was 	concerned 	about 	having 	to
wait 	two 	years 	before 	receiving 	overload 	pay 	and 	that 	the 	third
sentence 	was 	added 	to 	assure 	immediate 	payment 	where 	there 	had
been 	no 	previous 	underload. 	He 	did 	not 	recall 	Powell 	expressing
concern 	that 	the 	threshold 	remain 	at 	30 	and 	specifically 	denied
that 	anyone 	from 	the 	District 	assured 	Powell 	the 	threshold 	would
not 	be 	changed. 	Peterson 	did 	admit 	that 	he 	recalled 	no
discussion 	which 	specifically 	addressed 	the 	effect 	on 	overload
pay 	that 	would 	result 	from 	the 	increased 	threshold, 	but 	asserted
99

that 	the 	effect 	would 	have 	been 	readily 	apparent 	to 	the
Association 	negotiators.
Peterson 	testified 	at 	some 	length 	as 	to 	the 	meaning 	of
paragraphs A - 1 	and A-3. 	He 	first 	drew a 	distinction between 	a
normal 	full-time assignment, 	as 	referred to in A-1, 	and the
overload threshold, 	as reflected in A - 3 . 	Peterson said that 30
was 	the 	normal 	full-time 	assignment 	and 	is 	used 	as 	the 	benchmark
for 	calculating 	loads, 	i.e., 	30 	hours 	equates 	to 	1.0. 	He 	then
explained that, 	pursuant to A-3, 	31/30, 	or 	1.0333, 	reflects the
amount 	necessary 	to 	constitute 	an 	overload. 	Essentially, 	he
drew 	a 	distinction 	between 	the 	concepts 	of 	full 	load 	and
overload. 	He 	asserted 	that 	the 	third 	sentence 	was 	meant 	to
refer 	to 	the 	29-31 	equation. 	He 	explained 	that 	it 	does 	not
refer 	to 	the 	58-62 	equation 	because 	that 	provision 	related 	only
to 	underload 	situations.
Hvilsted's 	testimony was 	consistent with 	Peterson's, 	though
much 	more brief. 	He, 	too, 	asserted 	that 	it was made clear 	to
the 	Association 	that 	the 	overload 	threshold 	would 	be 	raised 	to
31 	by the 	proposed 	language 	of A-3. 	As 	did Peterson, 	Hvilsted
explained 	the 	absence 	of 	specific mention 	of 	the 	overload
threshold 	discussions 	in 	the 	District's 	notes 	by pointing 	out
that 	the 	notes 	are 	not 	verbatim and 	reflect 	only 	a 	summary 	of
major 	points 	in 	the 	negotiations. 	Hvilsted 	categorically 	denied
making 	any 	assurances 	that 	the 	threshold 	would 	not 	change 	or
that 	he 	told Powell 	not 	to 	be 	overly 	concerned. 	He 	also 	claimed
to 	have 	explained 	to 	the Association 	the 	fairness 	in having 	a
10

full-load 	range 	of 	29-31 	in 	that, 	though 	overload would not 	be
paid 	unless 	hours 	exceeded 	31, 	full 	pay would 	go 	to 	those 	with
only 	29 	hours. 	The 	two-year 	averaging 	provision would 	apply 	only
where 	a 	load was 	less 	than 	29. 	Peterson 	also 	testified 	that 	the
Association 	did 	not 	raise 	any 	issue 	as 	to 	overload 	in 	reopener
negotiations 	for 	the 	1982-83 	and 	1983-84 	years.
DISCUSSION
A. 	Timeliness 	of 	the 	Charge
The 	District 	first 	contends 	that 	the 	six-month 	statute 	of
limitations 	began 	to 	run 	on November 	9, 	1981, 	when 	the Agreement
was 	signed. 	This 	contention 	is 	based 	on 	the 	assumption 	that 	the
language 	of 	the 	Agreement 	itself 	put 	the 	Association 	on 	notice
of 	the 	threshold 	change. 	This 	is 	an 	abstractly 	interesting 	but
fallacious 	argument. 	The 	statute 	of 	limitations 	does 	not 	begin
to 	run 	until 	the 	charging party has 	actual 	or 	constructive 	notice
of 	the 	act 	alleged 	to 	be 	unlawful. 	Fairfield-Suisun 	Unified
School 	District 	(1985) 	PERB Decision No. 	547. 	The charge 	in 	this
case 	does 	not 	allege 	that 	the 	contract 	language 	was 	itself
illegal, 	but 	that 	the 	District 	implemented an 	interpretation 	of
the 	language 	not 	agreed 	to 	and 	understood 	by both 	parties. 	Thus,
the 	limitations 	period 	began 	from 	the 	time 	the Association 	is
deemed 	to 	have 	had 	knowledge 	of 	the 	District's 	intent 	to
implement 	an overload 	threshold of 	31 	hours. 	By definition, 	such
time 	would have 	to be 	after 	the 	execution 	of 	the Agreement, 	for
the 	Agreement 	established 	the 	policy 	from which 	the 	District 	is
alleged 	to 	have 	unlawfully 	deviated.
11

Next, 	the 	District asserts 	that 	the 	application of 	the 	new
threshold 	in 	1982 	and 	1983 	put 	the Association 	on 	notice. 	In
1984, 	about 	40 	percent 	of 	the 	faculty was 	affected by the 	change
from 30 	to 31, 	either 	by receiving no or 	less overload pay. 	The
ALJ 	assumed 	that 	roughly 	the 	same 	number 	were 	affected 	in 	1982
and 	1983. 	The ALJ 	stated 	that 	the 	Association 	would 	be 	deemed
to 	have 	had notice 	if 	it 	knew or 	should have 	known 	of 	the
District's 	implementation 	of 	the 	threshold 	increase. 	Noting 	that
there was 	no 	evidence 	that 	any of 	the 	affected 	employees 	were
actually 	aware 	of 	the 	change, 	nor 	evidence 	of 	their 	relationship
to 	the Association, 	the ALJ 	found no 	proof 	of actual 	knowledge.
Nevertheless, 	the 	fact 	that 	a 	substantial 	number 	of 	employees
were 	affected was 	a 	factor 	considered 	by 	the 	ALJ 	to 	determine
whether 	to 	impute 	knowledge 	to 	the Association. 	He 	concluded 	it
was 	insufficient 	in 	itself 	and 	found 	no 	other 	factor 	present
which 	would 	favor 	imputing 	knowledge. 	We 	agree.
The 	District 	also 	contends 	that 	Powell's 	failure 	to 	receive
an 	overload payment 	in 	the 	spring of 	1982, 	after 	receiving one
for 	the 	same number 	of hours 	the previous year, 	put 	the
Association 	on 	notice. 	The 	ALJ 	properly 	concluded 	that 	Powell's
failure 	to 	receive 	any 	overload 	payment 	in 	the 	spring 	of 	1982 	was
insufficient 	to 	put 	the 	Association 	on 	notice 	of 	the 	District's
view 	of 	the 	overload 	threshold. 	There 	was 	no 	evidence 	that
Powell 	continued 	to 	have 	any official 	role 	in 	the Association
after 	the 	conclusion 	of 	the 	1981 	negotiations. 	Nor 	was 	there
evidence 	that 	Powell 	communicated 	with 	any 	Association 	official
12

concerning his 	failure 	to 	receive 	an 	overload payment 	in 	1982.
Additionally, 	there was 	no 	evidence 	demonstrating 	that 	the 	use 	of
a 	31-hour 	threshold would 	have 	been 	apparent 	to 	the 	Association
even 	in 	the 	absence 	of 	employee 	complaints. 	Without 	such
evidence, 	we 	are 	unable 	to 	impute 	knowledge 	to 	the Association
in 1982.
The ALJ 	found 	that Powell's 	March 	10, 	1983 	grievance put 	the
Association 	on 	notice 	of 	the 	District's 	interpretation 	of 	the
overload 	threshold.8 Though 	the 	unfair 	practice 	charge 	was
not 	filed 	until 	February 	14, 	1984, 	the ALJ 	concluded that 	the
six-month 	statute 	of 	limitations 	provided 	by 	EERA 	section
3541.5(a) 	was 	tolled 	during Powell's 	attempted 	resolution 	of 	the
dispute 	through 	the 	grievance procedure. 	Since 	the 	record
reflects 	that 	the 	grievance was 	pending 	until 	its 	final 	denial
on 	December 	7, 	1983, 	the 	filing of 	the 	charge 	in February 	1984
would place 	it within 	the 	six-month 	limitation 	period. 	We 	find
the ALJ's 	analysis 	to be 	correct.
The 	District's 	objection 	to 	the 	finding 	that 	Powell's
grievance 	tolled 	the 	statute 	of 	limitations 	is 	without 	merit.
The 	District 	misreads 	two 	prior 	Board 	decisions9 for 	the
8AS 	noted 	above, 	the Agreement 	provides 	that 	the
Association 	receive 	copies 	of 	all 	grievances 	filed. 	AS 	the 	ALJ
noted, 	a 	reasonably 	diligent 	inquiry 	would 	have 	revealed 	the
nature 	of 	the 	grievance 	if 	it was 	not 	readily apparent 	on 	its
face.
9Poway 	Unified 	School 	District 	(1983) 	PERB 	Decision
No. 	350; 	San 	Dieguito union High 	School 	District 	(1982) 	PERB
Decision N O . 194.
13

proposition 	that 	a 	grievance 	does 	not 	toll 	the 	statute 	of
limitations 	unless 	the 	contractual 	grievance 	procedure
culminates 	in 	binding 	arbitration. 	While 	Poway 	and 	San 	Dieguito
limit 	the 	application 	of 	statutory 	tolling, 	pursuant 	to 	EERA
section 3541.5(a), 	to grievance procedures providing for 	binding
arbitration, 	both 	cases 	expressly 	stated 	that 	equitable 	tolling
principles 	may be 	applied, 	regardless 	of 	any provision 	for
binding arbitration. 	It 	is 	equitable 	tolling 	that 	is 	involved
herein.
The 	doctrine 	of 	equitable 	tolling 	requires 	the 	satisfaction
of 	two basic 	conditions: 	(1) 	The 	charging party must have
reasonably 	and 	in 	good 	faith 	pursued 	an 	alternate 	method 	of
relief; 	and 	(2) 	the 	tolling must 	not 	frustrate 	the purpose of
the 	statutory 	limitation 	period 	by 	causing 	surprise 	or 	prejudice
to the respondent. 	Poway, 	supra; 	Elkins v. 	Derby 	(1974) 	12
Cal.3d 410; 	Meyers v. 	County of 	Orange 	(1970) 	6 Cal.App.3d 	626.
The 	dispute 	herein 	could 	have 	been 	resolved 	through 	the
negotiated 	grievance 	procedure. 	The 	District 	admitted 	that
Powell's 	grievance 	was 	pursued 	through 	various 	levels 	of 	the
procedure 	and 	denied on March 	17, 	April 	7 	and December 	7, 	1983.
The 	only 	apparent 	delay was 	between 	the 	second 	and 	third 	levels.
There 	is 	no evidence 	that 	the delay was 	the 	result 	of 	a 	failure
by Powell 	to pursue 	the 	grievance 	in 	good 	faith 	and 	in 	a
diligent 	manner. 	Had 	the 	deadlines 	provided 	by 	the 	grievance
procedure 	been adhered to, 	the 	denial 	at 	level 	three would have
issued within 	two months 	of 	the 	denial 	at 	level 	two. 	The 	record
14

contains 	no 	explanation 	of why 	it 	in 	fact 	took 	approximately
eight months. 	Nevertheless, 	we find 	it 	instructive that, 	even
assuming 	the 	delay was 	the 	fault 	of Powell, 	the 	District
apparently 	did 	not 	see 	fit 	to 	enforce 	the 	contractual 	time 	limit
for 	a 	level 	Ill 	filing.
The 	second 	condition 	for 	applying 	equitable 	tolling 	is
clearly 	present, 	AS 	the ALJ 	observed, 	the 	grievance 	and 	the
unfair 	practice 	charge 	arose 	from 	exactly 	the 	same 	circumstances.
Both 	deal 	primarily 	with 	the 	determination 	of 	the 	proper 	overload
pay 	threshold. 	The 	evidence 	requirements 	for 	the 	defense 	of 	the
unfair 	practice 	charge 	and 	of 	the 	grievance would 	not 	differ.
Since 	the 	District was 	put 	on 	notice 	of 	the 	dispute 	herein 	at 	the
time 	of Powell's 	grievance 	in 	March 	1983, 	it was 	not prejudiced
by 	the 	time 	lag 	between 	the 	grievance 	and 	the 	unfair 	practice
charge.
Finally, 	we 	reject 	the 	District's 	claim 	that 	the 	limitations
period 	should 	not 	be 	tolled 	because 	the 	grievance 	was 	filed 	by
Powell, 	not by the Association. 	The 	Board 	considered and
rejected 	this 	argument 	in Victor 	Valley 	Joint 	union 	High 	school
District 	(1982) 	PERB Decision N O . 	273. 	The Board noted that 	the
exclusive 	representative 	is 	also 	an 	aggrieved party 	in 	relation
to 	an 	alleged 	refusal 	to 	bargain, 	and 	is 	thus 	an appropriate
party 	to 	raise 	the 	unfair 	practice 	charge.
B. 	The Alleged 	unilateral 	change
The 	ALJ 	characterized 	the 	District's 	interpretation 	of 	the
Agreement 	as 	a 	"hidden" 	one which 	did 	not 	reflect 	the parties'
15

mutual 	understanding 	at 	the 	bargaining 	table. 	The 	District
excepts 	to 	this 	characterization, 	and 	insists 	that 	the ALJ
ignored 	credible 	testimony 	that 	the 	threshold 	change 	was
communicated 	expressly 	and 	impliedly 	to 	the 	Association 	during
negotiations. 	While 	the 	District's 	argument 	is 	somewhat
overstated, 	we 	agree 	that 	the ALJ 	erred 	in 	finding a 	violation.
The plain 	language 	of 	the parties' 	agreement 	is most 	susceptible
to 	the 	District's 	proffered 	interpretation, 	while 	the 	Agreement
can 	be viewed 	as 	somewhat 	ambiguous, 	our 	review of 	the 	record
nonetheless 	compels 	us 	to 	conclude 	that 	the 	Association 	failed
to 	establish 	through 	evidence 	of 	negotiation 	history 	that 	its
interpretation was 	the 	one 	the 	parties 	intended.10	10
The 	District's 	interpretation 	is 	both 	internally 	consistent
and 	easily 	reconciled with 	the 	plain 	language 	of Article XI. 	The
first 	sentence of paragraph A - 3 	provides 	a 	range of 29 	to 31
hours. 	Any amount 	within 	this 	range would 	be 	considered 	a 	normal
full-time 	assignment. 	Pursuant 	to the second sentence, 	if 	a
teacher's 	load 	fell 	below 29, 	the 	District 	could assign 	an 	amount
in 	excess 	of 	31 	the 	next year, 	as 	long as 	the two-year 	total 	did
not 	exceed 62.
10Regulation 	32178 	provides 	that, 	in 	unfair 	practice 	cases,
the 	charging party bears 	the 	burden 	of 	proof 	by a 	preponderance
of 	the evidence.
PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et seq.
16

Assuming 	that 	"in 	this 	section" 	refers 	to paragraph A-3, 	the
third 	sentence 	provides 	that, 	when 	limits 	referred 	to 	above 	are
exceeded, 	it would 	constitute 	an 	"overload" 	for 	which 	extra 	pay
would 	be 	due. 	The 	parties 	maintain 	that 	this 	sentence was 	added
to 	insure 	an 	immediate 	overload 	payment 	in 	situations 	where
two-year 	averaging was 	not 	applicable 	(i.e., 	where 	there was 	no
previous 	underload), 	undoubtedly, 	the 	language could have been
drafted 	to more 	clearly provide 	that 	hours 	in 	excess 	of 	31 	would
constitute 	an 	overload, 	except where 	two-year 	averaging 	is
permitted, 	in 	which 	case 	overload would be 	anything 	exceeding 	a
two-year 	total 	of 62. 	Nevertheless, 	the 	third sentence 	is most
reasonably 	read 	to 	confer 	that meaning. 	"Equation" 	refers 	to
29-31 and 	its 	two-year 	counterpart 	(58-62), 	or 	it 	refers solely
to 	29-31, 	but 	is 	impliedly qualified by the 	two-year 	provision
in 	the 	second 	sentence.
The 	District's 	explanation 	of 	the 	interaction 	of 	paragraphs
A-l 	and A-3 	is 	also 	plausible. 	"Full-time 	assignment" 	as 	used
in 	A-l 	can 	be 	viewed 	as 	defining merely 	the 	normative 	full-time
load 	that 	is 	used 	for 	comparative purposes. 	For 	example, 	the
parties 	agreed 	to 	retain 	15 	hours 	per 	semester 	as 	the 	benchmark
to which 	laboratory hours 	are equated. 	Additionally, 	the
evidence 	revealed 	that 	the 	District 	continued 	to 	use 	the 	30-hour
figure 	(equated 	to 	1.0) 	as 	the 	benchmark 	against 	which 	individual
loads 	are 	compared. 	Though A-l 	defines 	the 	normal 	load 	as 	30,
A-3 	provides 	that 	only loads 	over 	31 	trigger 	overload pay, 	and
only 	loads 	under 	29 	trigger 	two-year 	averaging.
17

Viewing paragraphs A - 1 	and A-3 	as 	serving different 	but
consistent 	purposes 	serves 	the 	principle 	that 	contract 	provisions
should 	be 	read 	together 	and harmonized 	if 	possible 	to 	give
meaning 	to 	each 	provision. 	This 	principle 	is 	codified 	in
California Civil 	Code 	section 	1641, 	which 	states:
The whole 	of 	a 	contract 	is 	to be 	taken
together, 	so as 	to give effect 	to every part,
if 	reasonably practicable, 	each 	clause
helping 	to 	interpret 	the 	other.
While 	the 	District's 	interpretation 	is 	easily harmonized
with 	the 	plain 	language 	of Article XI, 	the 	operative 	provisions
arguably contain some ambiguities. 	Therefore, 	it 	is proper 	to
consider 	extrinsic 	evidence 	in 	interpreting 	those 	provisions.
Nevertheless, 	while 	extrinsic 	evidence 	is 	properly considered
when 	the 	contract 	language 	is 	ambiguous, 	it may be 	received only
to 	establish 	a meaning 	to which 	the 	language 	of 	the 	contract 	is
reasonably 	susceptible. 	Murphy Estate 	(1978) 	82 	Cal.App.3d 	304
[147 Cal.Rptr. 	258]; 	Murphy Slough Assn, 	v. Avila 	(1972) 	27
Cal.App.3d 649 	[104 Cal.Rptr. 	136].
There 	are 	two possible 	ambiguities 	in 	the provisions 	at
issue: 	(1) 	Paragraph A - 1 	can be read to define a 	"full-time
assignment" 	as 15 	semester hours 	(30 	annual hours), while
paragraph A-3 	states a 	"full-time assignment" 	is 29-31 equated
hours; 	and 	(2) 	it 	is 	not 	certain whether 	the words 	"in this
section" 	in the 	third sentence of A-3 	refer 	to A - 3 	only or 	to
the 	entire 	subdivision A 	of Article XI. 	Both 	ambiguities 	touch
18

upon 	the 	ultimate 	issue 	in 	this 	case, 	the 	threshold 	for 	overload
pay.1 1
The Association 	contends 	that paragraphs A - 1 	and A-3 	are
inconsistent, 	but 	that A-1 	should control 	because 	it 	is 	the more
specific 	provision. 	The 	reference 	to 	"section" 	in 	the 	third
sentence 	of A-3 	is 	said 	to 	relate 	to all 	of 	"section" 	A, 	not
"paragraph" 	A-3. 	Therefore, 	the overload 	threshold would be
controlled 	by A-1 	because 	it 	is 	more 	specific. 	The Association
asserts 	that 	the 	District's 	distinction 	between 	normal 	load 	and
overload 	is 	a 	dubious 	one.
The 	Association 	does 	attempt 	to 	offer 	an 	interpretation 	that
harmonizes 	the 	two paragraphs. 	This 	interpretation 	views 	the
29-31 	and 	58-62 	ranges 	in 	paragraph 	A-3 	as 	relating 	solely 	to
two-year 	averaging, 	without 	impact 	on 	the 	overload 	threshold.
Where 	an 	annual 	teaching 	load 	is 	less 	than 29, 	the 	following
year 	the 	District 	may assign, 	without 	additional 	compensation,
up 	to 	31 	hours, 	Overload 	pay must 	be 	paid 	annually for 	any
assignment 	in excess 	of 30 	hours 	unless, 	in 	the preceding year,
the 	unit 	member 	had 	been 	assigned 	less 	than 	29 	hours, 	In 	that
case, 	overload pay would 	be 	due 	if 	the 	second-year 	assignment
exceeded 31. 	In 	essence, 	the Association 	asserts 	that paragraph
A-3 	provides 	simply that, 	when a 	load falls below 29, 	the
11 The 	Association 	urges 	that, 	pursuant 	to California civil
Code 	section 	1654, 	the 	language of 	a 	contract should be
interpreted 	most 	strongly 	against 	the 	party who 	caused 	the
uncertainty to exist 	(i.e., 	the District). 	However, 	as the
Association acknowledges, 	this 	principle 	is 	applied 	only where
other 	rules 	of 	construction 	fail 	to 	resolve 	the 	uncertainty.
19

District 	may 	assign 	up 	to 	31 	hours 	the 	following year 	without
incurring 	liability 	for 	overload 	pay.
There 	are 	numerous 	problems 	with 	the 	Association's
interpretation. 	Foremost 	among 	them 	is 	that 	the 	58-62 	range 	in
the 	second 	sentence 	of A-3 	cannot 	be 	reconciled with 	this
interpretation, 	under 	the Association's 	interpretation, 	the
District 	could 	assign 	only 	two-year 	totals 	approaching 	60 	without
triggering 	overload 	pay.12 The 	Association's 	contention 	that
the 	58-62 	range 	represents 	an average 	of 	60 	or 	merely an
expression 	of 	twice 	the 	29-31 	range 	is 	unconvincing. 	Further,
it 	would 	take 	a 	strained 	construction 	at 	best 	to 	find 	from 	the
language 	of A-3 	that, 	in 	the year 	following an underload, 	only
31 	hours 	may 	be 	assigned without 	triggering 	overload 	pay.13	3	1
12Two-Yeas averaging 	is 	triggered 	by 	a 	load 	less 	than 	29,
and 	the 	second-year 	assignment 	cannot 	exceed 	31. 	Therefore,
28.99 	plus 31, 	or 	59.99, 	would be the maximum possible two-year
total 	not 	requiring overload pay. 	Further, 	if 	the 	first-year
assignment 	is 	less 	than 27, 	then 	the 	two-year 	total would not
even 	fall 	within 	the 	58-62 	range.
1 3 It 	is 	instructive 	to note 	that 	the Association, 	in 	its
response 	to 	the 	District's 	exceptions, 	cites 	approvingly the
following 	passage 	from 	the 	proposed 	Decision:
The District, 	in seeking flexibility, 	was
trying 	to prevent 	an 	instructor 	who, 	for
example, 	had worked only 27 	lecture hours 	in
one 	academic 	year 	from 	collecting 	overload
pay 	for 	working 33 	lecture 	hours 	in 	the 	next
academic 	year.
The 	above 	finding 	by 	the ALJ 	is 	inconsistent 	with 	the
Association's interpretation of paragraph A - 3 , as described
above, 	for 	the Association 	claims 	that 	only a maximum of 	31 	hours
can 	be 	assigned 	the 	second 	year 	without 	triggering 	overload 	pay.
The ALJ's 	finding 	is, 	however, 	consistent with 	the District's
interpretation of A-3.
20

We 	also 	note 	that 	the Association's 	interpretation 	is
inferior 	to 	the 	District's 	in 	serving 	the 	mutually agreed 	upon
purpose 	of 	the 	provision, 	which was 	to make 	load distribution
more 	equitable 	by 	allowing 	two-year 	averaging where 	there 	had
been a 	previous 	underload. 	For 	example, 	those 	assigned a 	normal
full-time 	load 	of 	30 	hours 	each 	year 	would 	continue 	to 	receive
less 	pay 	than many others whose 	two-year 	total 	of 	60 	would
entitle 	them 	to 	overload pay. 	By 	limiting 	the 	second-year
adjustment 	to a 	maximum of 	31, 	only those whose 	first-year 	load
was 	very 	close 	to 	the 	underload 	trigger 	of 	29 	would 	end 	up
working 	approximately 	the 	same 	60 	hours 	without 	overload 	pay.
The 	following 	chart 	illustrates 	this 	point:
Overload Pay 	(Yes or N O )
Post-agreement 	Policy
First 	Year 	-
Second 	Year 	Total
Pre-agreement
Policy
Association
Interpretation
District
interpretation
-30 	- 	30 	60 	NO 	No 	No
29 	- 	31 	60 	Yes 	Yes 	No
28.99 	- 	31 	59.99 	Yes 	No 	No
28.50 	- 	31 	59.50 	Yes 	No 	No
28 	- 	31 	59 	Yes 	NO 	No
28 	- 	32 	60 	Yes 	Yes* 	No
27 	- 	31 	58 	Yes 	NO 	NO
27 	- 	33 	60 	Yes 	Yes* 	No
26 	- 	34 	60 	Yes 	Yes* 	No
25 	- 	35 	60 	Yes 	Yes* 	NO
24 	- 	36** 	60 	Yes 	Yes* 	NO
*Where overload pay 	is 	due, 	it would be 	for 	one-hour 	less 	than
under 	the 	pre-agreement 	policy.
**Thirty-six 	(36) 	is 	the maximum permissible 	one-year 	assignment,
for 	the 	parties' 	Agreement 	does 	not 	allow semester 	assignments
in 	excess 	of 	18 	without 	the 	instructor's 	consent 	in writing.
21

California Code 	of civil 	Procedure 	section 	1859 	provides, 	in
essence, 	that 	specific provisions 	control 	over 	general
provisions. 	The Association's assertion 	that 	"15" 	is more
specific 	than 	"29-31" 	is 	attractively simple 	but misleading. 	If
the 	29-31-hour 	range 	in paragraph A-3 	is 	viewed 	in 	context
(i.e., 	two-year averaging), 	it is reasonable to conclude that 	it
is more specific 	than 	the 	reference 	to 	"15" 	in paragraph A-l.
The 	definition 	of 	"full-time 	faculty assignment" 	in 	paragraph
A-l 	is 	part 	of 	a 	broad 	provision 	of 	general 	application 	which
describes 	the 	normative 	duties 	of 	the 	faculty. 	The 	definition
of 	"full-time 	teaching assignment" 	in paragraph A - 3 	is part 	of 	a
very 	specific 	provision 	dealing 	with 	a 	particular 	application 	of
that 	definition.
The Association 	is 	correct 	in 	its 	assertion 	that 	the
reference 	to 	"this 	section" 	in 	the 	last 	sentence of 	paragraph
A-3 	does 	not 	necessarily 	relate 	only 	to 	that 	paragraph, 	rather
than 	to the whole 	of 	subdivision A. 	However, 	it 	does 	not
necessarily 	refer 	solely 	to paragraph 	A-l 	either, 	while 	the
first 	two 	sentences 	of paragraph A-l 	do 	express 	an equation, 	so
does 	the 	first 	sentence of paragraph 	A-3. 	We 	note 	that 	the
overload 	threshold 	applies 	to 	yearly 	teaching 	assignments. 	While
paragraph A - 3 	speaks 	in terms of yearly figures, 	the critical
portion 	of 	paragraph A-l 	refers 	to 	semester 	totals. 	This
observation, 	along with 	the 	placement 	of 	the 	overload provision
in 	paragraph 	A-3 	and 	the 	integral 	relationship between 	overload
and 	two-year 	averaging, 	lead us 	to 	the 	conclusion 	that 	the
22

critical 	third 	sentence 	of 	paragraph 	A-3 	refers 	to 	the 	first
sentence of that paragraph and not to paragraph A-l.14 14
Irrespective 	of 	the 	possible 	interpretations 	of 	paragraph
A-3, 	the Association 	insists 	that 	it was 	added only to allow 	for
two-year 	averaging, 	and that 	there was 	no 	discussion 	of
increasing 	the 	overload 	threshold. 	However, 	the Association
failed 	to 	provide 	convincing 	evidence 	that 	the 	parties 	intended
that 	paragraph 	A - 3 	have no 	affect 	on 	the 	overload threshold.
Janet 	Bird's 	testimony was weak 	and 	confused, 	In 	fact, 	she
could 	not 	recall 	seeing 	the 	language 	of 	A-3 	in 	writing 	until
after 	the 	agreement 	was 	executed. 	Bird 	did 	recall 	Richard
Powell 	expressing 	concern 	about 	overload 	and 	being 	told 	by 	the
District 	not 	to worry. 	However, 	when 	viewed 	in 	the 	context 	of
the 	evidence 	as 	a whole, 	this 	is 	clearly 	insufficient 	to 	carry
the 	Association's 	burden 	of 	proof.
14	14 14The District's bargaining notes are consistent with this
conclusion. 	The notes for May 14, 	1981, 	in reference to A - 3 ,
state:
CTA 	accepted 	this 	item with 	the 	addition 	of
a 	statement 	of 	assurance 	that 	any 	time 	beyond
the 	29-31 	equated 	hours 	of 	instruction 	will
be 	considered 	overload.
The 	notes 	for May 28, 	1981 	state:
A-l) 	included definition 	of 	overload. 	Terry
asked when 	the 	2-year 	equation 	begins. 	chuck
said when 	the 	contract 	is 	signed 	and 	ratified.
While 	this 	entry 	is 	labeled 	"A-l," 	the 	reference 	to two-year
averaging 	reflects 	that 	this 	is 	most 	likely due 	to a
typographical 	error. 	Paragraph 	A-l 	contains 	no 	reference 	to
two-year 	averaging.
23
14

While 	we 	draw 	no 	adverse 	inference 	from Powell's 	failure 	to
testify, 	the 	fact 	is he did not, 	so the Association must 	rely
solely upon Bird's 	testimony. 	The 	District's witnesses, 	who
were 	found 	to be 	credible 	by 	the ALJ, 	both 	denied making 	any
assurances 	that 	the 	overload 	threshold would 	remain 	at 	30, 	and
instead 	insisted 	that 	the 	overload 	increase 	was 	discussed. 	We
believe 	the ALJ 	put 	too much 	emphasis 	on 	the 	failure 	to 	discuss
the 	actual 	impact 	upon 	unit members' 	pay and 	on 	the 	inability of
Hvilsted 	and 	Peterson 	to 	recall 	specifically what 	they 	told 	the
Association 	at 	the 	bargaining 	table, 	What 	they 	did 	consistently
maintain 	was 	that 	the 	issue 	was 	discussed 	and 	that 	the
Association 	apparently 	understood 	the 	ramifications 	of 	paragraph
A-3.
In sum, 	the 	Association's 	proffered 	interpretation 	is 	less
plausible 	than 	that 	offered by 	the 	District. 	There 	is 	no
internal 	consistency 	giving meaning 	to 	all 	provisions 	of 	the 	two
paragraphs. 	Though 	there 	is 	arguably 	some 	inconsistency between
paragraphs A-l 	and A-3, 	the Association's 	suggested 	resolution
requires 	a 	construction 	of A-3 	which 	is 	much 	more 	strained 	than
the 	construction 	of 	A-l 	suggested 	by 	the 	District 	to 	resolve 	the
inconsistency. 	While 	neither 	party's 	testimony on 	the 	content
of 	negotiations 	is 	entirely convincing, 	it 	is 	the Association
which 	bears 	the 	burden of 	proof. 	The 	evidence was 	insufficient
to 	carry 	that 	burden.
24

ORDER
Based on 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and the entire 	record 	in this 	case, 	Case No. 	LA-CE-1925 	is
hereby 	DISMISSED.
Members 	Burt 	and Craib 	joined 	in 	this 	Decision.
25