Riverside Unified School District (PERB 0571E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
TONY 	PETRICH.
Charging 	Party.
v.
RIVERSIDE UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2143
PERB Decision No. 	571
May 	7 	1986
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Appearance: 	Tony Petrich, 	on his 	own behalf.
Before Hesse, 	Chairperson; Morgenstern, 	Burt, 	Porter and Craib,
Members.
DECISION
BURT, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB or 	Board) 	on appeal 	of 	a Board 	agent's
partial 	dismissal 	of 	Charging Party Tony Petrich's 	allegations
that 	certain 	actions 	of 	the Riverside Unified 	School 	District
(District) violated section 3543.5(a), 	(b) and 	(c) 	of the
Educational Employment Relations Act 	(EERA or Act).1
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
are 	to 	the Government Code.
Section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
__)

Petrich 	alleged 	that 	the 	following 	conduct 	by 	the 	District
violated 	the Act:
1. 	The District unilaterally 	changed 	his 	working
conditions 	when 	it 	placed 	adverse 	material 	in his 	personnel
file more 	than five 	days 	after 	he was 	provided 	copies 	of 	the
material 	in violation both of 	section 	17.1 	of 	the 	contract
between 	the 	California 	School 	Employees 	Association 	and 	the
District 	(Contract) 	and of 	the Act.
2. 	The District made 	an unlawful 	unilateral 	change when
it 	failed 	to 	give 	him a 	copy of 	a 	corrected memo 	prior 	to
placing 	it 	in his 	personnel 	file 	in violation both of
sections 	17.1 and 	17.4 	of 	the Contract and 	of 	the Act.
3. 	The District 	unlawfully 	retaliated 	against 	Petrich 	for
his 	participation 	in 	protected 	activity when 	the 	assistant
superintendent 	recommended 	his 	dismissal 	and 	informed 	him 	of 	a
month's 	suspension after 	a 	Skelly hearing.
4. 	The District's 	involuntary 	transfer 	of 	Petrich 	from
Woodcrest 	Elementary 	School 	to North High 	School 	around
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.
22

February 25. 	1985. 	was 	both in retaliation for 	protected
activities 	and 	an unlawful 	unilateral 	change.
A complaint 	issued 	on allegation number 	three 	above, 	but
the 	remaining 	allegations 	were 	dismissed 	by 	the 	regional
attorney for 	failure 	to 	state 	a 	prima 	facie 	case. 	Upon
reviewing the 	entire 	record 	in 	light 	of 	the 	appeal, 	we 	affirm
the 	regional 	attorney's 	dismissal 	of 	the 	allegations 	based 	on
the District's 	failure 	to 	provide 	Petrich with a 	corrected 	copy
of 	a 	memo 	prior 	to 	placing 	it 	in his 	personnel 	file 	and 	on the
timing of 	the 	placement 	of 	materials 	in Petrich's 	file. 	For
the reasons 	that follow, 	however, 	we 	reverse her dismissal 	of
part 	of 	the 	charge 	based 	on 	the 	involuntary 	transfer.
DISCUSSION
The 	first 	issue 	in regard 	to 	all 	of 	the 	dismissed 	charges
is whether 	sufficient 	facts were 	alleged 	to 	state 	a 	prima 	facie
case 	of 	unlawful 	unilateral 	change.
22 To 	state 	such 	case.
Charging Party 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 	an 	opportunity 	to 	bargain.
San Francisco 	Community College District 	(1979) 	PERB Decision
2In 	reviewing a 	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.)
33

No. 	105; 	Anaheim City School District 	(1983) 	PERB Decision
No. 	364. 	The Board has also 	indicated that, 	to be unlawful,
such a 	change must 	amount 	to 	a 	change 	in policy having either 	a
generalized 	effect 	or 	a 	continuing 	impact 	on the matter 	within
the 	scope 	of 	representation. 	Grant Joint Union High School
District 	(1982) 	PERB Decision No. 	196.
Timing 	of 	the 	placement 	of 	materials 	in Charging Party's
personnel 	file: 	Contract 	section 17.1 provides 	as 	follows:
Employees 	shall 	be 	provided with copies 	of
any derogatory written 	statements 	five 	(5)
workdays 	before 	it 	is 	placed 	in the
employee's 	personnel 	file. 	Full-time
permanent 	employees 	shall 	be 	given up 	to 	two
(2) 	hours 	during normal working hours 	and
without 	loss 	of 	pay to 	prepare 	a written
response 	to 	such material. 	The written
response 	shall 	be 	attached 	to 	the material.
Petrich 	provided 	one 	example 	of 	a 	derogatory memo 	which
stated 	on 	its 	face 	that 	it 	and 	Petrich's 	response would 	be
placed 	in his 	file 	ten workdays 	after 	the 	date 	of 	the memo. 	He
said 	that 	the 	Contract 	language 	"five workdays" 	means 	five
days, 	no more, 	no 	less, 	and that the District's action
constitutes 	a 	breach of 	the Contract 	and 	thus 	an unlawful
unilateral 	change 	in Petrich's 	terms 	and 	conditions 	of
employment. 	The District 	said 	that 	the 	above 	Contract 	language
means 	a minimum of 	five days, 	but 	that 	the 	time 	could 	be
longer. 	It 	said 	that 	its 	conduct was 	consistent with past
practice.
We 	find 	that 	the 	above 	allegation fails 	to 	state 	a 	prima
facie case 	of 	unlawful 	unilateral 	change. 	It 	is 	clear 	that 	the
4

purpose 	of 	section 	17.1 	of 	the 	contract 	is 	to 	provide an
employee with adequate 	time 	to 	respond 	to 	a 	derogatory
statement 	prior 	to 	its 	placement 	in his/her 	personnel 	file.
Although the 	language Petrich points 	to 	is. 	if 	read 	alone,
susceptible 	to his 	interpretation, 	we find 	that, 	when 	it 	is
read 	in 	the 	context 	of 	the whole 	section, 	it clearly
establishes 	a 	minimum period 	for 	employee 	response 	that 	the
employer 	must 	observe 	before 	placing 	the 	document 	in 	the 	file.
Since 	the District 	did 	provide 	the 	necessary minimum 	response
period, 	its 	conduct did not breach the contract. 	Thus, 	no
violation of 	ERRA 	is 	alleged 	and 	this 	charge 	is 	dismissed.
Failure 	to 	send 	Petrich a 	corrected 	copy of 	an 	adverse
memo: 	The memo 	in question referred 	to 	a 	pre-disciplinary
meeting held 	on 	"January 8, 	1984." 	Petrich 	informed 	the
District 	in a 	grievance 	that 	the 	correct 	date was
January 8, 	1985. 	The date was 	corrected 	on the memorandum
prior 	to 	its 	placement 	in Petrich's 	personnel 	file, 	but 	he
alleges 	he 	did 	not 	receive 	a 	copy of 	the 	corrected memo.
Petrich alleges 	that 	the 	failure 	of 	the District 	to 	provide
him with a 	copy of 	the 	corrected 	memo 	constitutes 	an unlawful
unilateral 	change 	in that 	it violates 	Contract 	sections 	17.1,
described above, 	and 	17.4, 	which provides 	that:
Any person who 	places 	written material 	or
drafts 	written material 	for 	placement 	in an
employee's 	file 	shall 	sign 	the 	material 	and
signify 	the 	date 	on which 	such material 	was
drafted.
5

The 	District 	complied 	with 	both 	provisions 	when 	it
originally placed 	the memo 	in Petrich's 	personnel 	file. 	The
memo 	contained 	an 	inadvertent 	or 	typographical 	error 	in 	the
date 	of 	the 	referenced meeting. 	The District 	agreed 	to 	correct
this 	error 	and 	Charging Party was 	fully aware 	of 	its
intention. 	Neither 	of 	the 	above Contract 	sections 	can be
reasonably 	read 	to 	apply 	to 	the 	correction of 	such an 	error
where 	the 	employee 	is 	aware 	of 	both the 	error 	and 	its
change.
33 Therefore, 	no breach of 	the Contract 	is adequately
alleged 	and 	no 	unilateral 	change 	can 	be 	found. 	For 	this
reason, 	we affirm the 	regional 	attorney's 	dismissal 	of 	this
charge 	for 	failure 	to 	state 	a 	prima 	facie 	case.
Petrich 	alleges 	that 	his 	reassignment 	from Woodcrest
Elementary School 	to North High School 	constitutes 	a 	change 	in
three District 	policies. 	First, 	Petrich asserts 	that 	the
District 	changed 	its 	policy on transfers. 	In 	support 	of 	this,
he 	states 	that 	a 	prior 	contract 	included 	a 	provision 	setting
out 	a 	policy on transfers. 	He 	does 	not 	quote 	or 	paraphrase 	the
substance 	of 	that 	provision or 	policy. 	Petrich 	says 	that 	that
provision was 	deleted 	in subsequent 	contract 	negotiations, 	but
the 	California 	School Employees Association 	(CSEA) 	and 	the
3Had 	the 	correction been a material 	one, 	arguably the
corrected 	memo 	could 	be 	viewed 	as 	a 	new document 	triggering
application of 	the 	two Contract provisions. 	However, 	that 	is
not 	the 	situation here.
66

District were 	unable 	to 	agree 	on a 	new transfer 	policy and
later 	contracts 	have 	therefore 	been 	silent 	on 	that 	subject.
It 	is 	settled 	law that 	an employer 	policy on a 	negotiable
subject 	may 	be 	changed 	only after 	negotiations 	with 	the
exclusive representative. 	Thus, 	until 	a policy is 	replaced 	by
a 	mutually-agreed 	upon 	new policy, 	the 	old 	policy 	remains 	in
effect. 	Oak Grove 	School District 	(1985) 	PERB Decision
No. 	503. 	Here. 	Petrich has 	specifically alleged 	that 	the
negotiating 	parties 	have 	been unable 	to 	agree 	to 	a 	successor
policy to 	the 	old 	contract 	provision. 	Since no 	facts were
presented 	indicating 	that 	the 	parties 	intended 	the 	elimination
of 	the 	prior 	contract 	provision 	to 	create 	a 	policy prohibiting
or 	restricting 	involuntary transfers, 	it 	follows 	that 	the 	old
contract 	policy remains 	in effect 	as 	a 	matter 	of 	past
practice. 	Because 	Petrich has 	not 	alleged 	exactly what 	the
policy 	is, 	he 	has 	not 	adequately alleged 	that 	the District 	has
departed 	from the 	policy. 	We, 	therefore, 	affirm the
4 We note, 	in addition, 	that the 	regional attorney
obtained 	information 	that 	the 	District's 	established 	practice
is 	to 	transfer 	employees 	involuntarily when 	it 	is 	in the 	best
interests 	of 	the District 	and 	after 	informal 	discussion with
CSEA. 	Petrich was 	advised 	of 	this 	in a 	letter 	dated
May 22, 	1985 and, 	thus, 	had the opportunity thereafter 	to
submit 	additional 	or 	contrary 	information 	and 	amend 	his
charge. 	Instead of 	doing so. 	he filed this 	appeal. 	When
factual 	information 	obtained 	by 	the 	regional 	attorney does 	not
conflict with 	the 	factual 	allegations 	set 	forth 	in 	a 	charge 	and
is 	not 	contested 	by 	the Charging Party, 	then 	it may fairly be
presumed 	true 	for 	the 	purposes 	of 	charge 	processing 	pursuant 	to
PERB Regulation 	32620.
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regional 	attorney's 	conclusion that 	the 	charge 	fails 	to 	state 	a
unilateral 	change 	in 	transfer 	policy.
The 	charge 	also 	states 	that 	the District 	changed 	its 	policy
on hours 	by assigning Petrich 	to 	new work 	hours 	when 	it
transferred 	him to North High School. 	The 	charge 	states 	that:
. 	. 	. 	the District has agreed, 	pursuant to
Government Code section 3543.2, 	that, 	once
an employee's work hours 	are 	established, 	a
change, 	or 	changes 	in an employee's hours 	of
employment 	is/are 	negotiable.
Petrich also 	references 	one 	instance 	in which 	the District
did 	negotiate 	a 	change 	in hours. 	Liberally construing 	the
charge, 	it 	appears 	that Petrich 	is 	asserting that existing
policy does 	not 	permit 	such a 	change 	in hours 	as 	allegedly
occurred 	unless 	the 	change 	has 	been agreed 	to 	in negotiations
between CSEA and 	the District. 	The District 	apparently 	told
the 	regional 	attorney 	that 	its 	existing 	policy permits 	it 	to
change 	an employee's 	work 	hours 	when 	the 	employee 	is 	reassigned
to 	a 	new position. 	In 	imposing her 	own resolution of 	this
factual 	conflict, 	the 	regional 	attorney exceeded 	her
authority. 	We, 	therefore, 	reverse her determination and order
that 	a 	complaint 	issue 	on 	this 	allegation of 	unilateral
change.
Finally. 	Petrich also 	alleges 	that 	his 	reassignment
constituted 	a 	unilateral 	change 	in his 	job 	classification
assignment. 	Specifically, 	he alleges 	that 	his 	position at
8

Woodcrest Elementary School was 	that 	of 	"Gardener" 	but, 	when he
was 	reassigned 	to North High School, 	he was 	placed 	in a
position 	classified 	as 	"Gardener-Custodian" 	and 	given 	new
duties 	primarily of 	a 	custodial 	nature. 	According 	to 	the
charge, 	that 	classification 	is 	not 	included 	in the 	list 	of
agreed-upon 	classifications 	which appear 	in 	the 	current
contract. 	Moreover. 	Petrich alleges 	he 	is 	now required 	to
perform 	custodial 	duties 	as 	well 	as 	the 	gardening duties 	he
performed 	in his 	prior 	assignment.
Upon 	investigating, 	the 	regional 	attorney 	received
information from the District 	that, 	although the 	notice 	it
first 	sent 	Petrich 	indeed 	indicated 	his 	new position would 	be
that 	of 	a gardener-custodian, 	it 	later 	sent him a 	letter
stating 	that 	the 	reclassification was 	in error 	and 	that 	his
classification at 	the 	new school 	remained 	that 	of 	a 	gardener.
However, 	a 	comparison of 	his 	duties 	at 	the 	old 	school with
those 	of 	the 	new assignment 	indicates 	that 	he 	is 	now performing
more 	custodial 	duties 	than 	before.
Even 	though 	there may 	be 	no 	change 	in 	his 	classification
title, 	the 	change 	in duties may constitute a de 	facto 	change 	in
classification. 	While 	the 	new duties 	may 	be 	comprehended
within his 	job description, 	the 	evidence 	in the 	record 	is
insufficient 	to 	draw 	that 	conclusion with 	certainty.
Therefore, 	we 	reverse 	the 	regional 	attorney's 	determination and
order 	that 	a 	complaint 	issue 	on 	this 	charge.
9

The 	involuntary 	transfer 	as 	a 	reprisal 	for 	protected
activities: 	Petrich also 	alleges 	that 	the 	involuntary 	transfe
was 	made 	in 	retaliation for 	his 	participation 	in protected
activities. 	To 	state a 	prima 	facie 	case of unlawful
retaliation, 	facts must be alleged which, 	if proven, 	indicate
that 	the 	employee 	had 	participated 	in 	protected 	activity 	and
the employer's 	conduct was motivated, 	at 	least 	in part, 	by tha
protected 	activity. 	Unlawful 	motive 	may 	be 	inferred 	from
circumstantial 	evidence. 	Novato Unified 	School 	District 	(1982
PERB Decision No. 	210. 	Petrich has 	clearly engaged 	in
protected 	activity 	in that 	he 	has 	filed 	numerous 	grievances 	an
unfair 	practice 	charges 	against 	various 	District 	actions.
Unlawful 	motivation 	on 	the 	part 	of 	the District 	may 	be 	inferre
from 	several 	factors: 	much 	of 	Petrich's 	protected 	activity ha
resulted 	in extensive 	conflict with the District, 	the
involuntary 	transfer 	followed 	on 	the 	heels 	of 	the 	protected
activity, 	and 	the District 	indicated 	that 	it was 	not made
because of 	the District's manpower needs but, 	rather, 	because
of 	its 	dissatisfaction with Petrich's 	performance. 	While 	not
conclusive, 	these 	factors 	imply a 	nexus 	between Petrich's
protected 	activity 	and 	the 	District's 	action.
In sum, 	for 	the 	foregoing reasons, 	we 	find 	that Charging
Party has 	alleged 	prima 	facie 	cases 	of 	unilateral 	change 	in
hours 	and 	in 	classification/duties 	and 	of 	retaliation 	based 	on
the 	involuntary transfer. 	Thus, 	we order 	that 	a 	complaint
r
t
)
d
d
s
10

issue on those charges. 	We find, 	however, 	that a prima facie
case 	of 	unilateral 	change was 	not 	stated with 	respect 	to 	the
involuntarily transfer 	itself, 	to 	the 	timing of 	the 	placement 	of
derogatory documents 	in 	an employee's 	personnel 	file 	or with
regard 	to 	the District's 	failure 	to 	provide Petrich with a
corrected 	copy of 	a 	memo 	placed 	in 	his 	personnel 	file 	and,
therefore, 	affirm the 	regional 	attorney's 	dismissal 	of 	these
charges.
ORDER
Except 	for 	the 	alleged 	change 	in 	the 	transfer 	policy
itself, 	the dismissal of 	charges 	in Case No. 	LA-CE-2143 	based
on 	the 	Riverside 	Unified 	School 	District's 	involuntary 	transfer
of 	Tony Petrich 	is 	hereby REVERSED and 	the 	charges 	are REMANDED
to 	the 	general 	counsel 	for 	the 	issuance 	of 	a 	complaint. 	The
dismissal 	of 	the 	charges 	in Case No. 	LA-CE-2143 	based 	on the
District's 	failure 	to 	provide Tony Petrich with a 	corrected
copy of 	a memo 	and 	on the 	timing 	of 	the 	placement 	of 	derogatory
documents 	in an employee's 	file 	is 	hereby AFFIRMED.
Members Morgenstern and 	Craib 	joined 	in 	this Decision.
Member 	Porter's 	Concurrence 	and Dissent 	begins 	on page 	12.
Chairperson Hesse's 	Concurrence 	and Dissent 	begins 	on page 	26.
11

Porter, 	Member, 	concurring and dissenting: 	I 	concur 	in the
majority's 	dismissal 	of 	those 	portions 	of 	the 	charges 	that
allege 	a 	unilateral 	change 	when 	the 	District 	failed 	to 	provide
Petrich 	with 	a 	copy of 	a 	corrected 	memo, 	failed 	to place
material 	in his 	file 	within 	five 	days 	after 	his 	receipt, 	and
involuntarily 	transferred 	him.11 As 	to 	the 	alleged 	failures
by 	the 	District 	to 	provide 	Petrich 	a 	corrected 	copy 	of 	a 	memo
and 	to 	comply with 	the 	contract 	as 	to 	timing 	of 	placement 	of
material 	in his 	file, 	I would dismiss, 	not on the 	ground 	that
no 	contract 	violation 	exists, 	but 	rather, 	on 	the ground 	those
charges 	fail 	to 	meet 	the 	standard 	established 	by 	the 	Board 	in
Grant 	Joint 	Union 	High 	School 	District 	(1982) 	PERB Decision
No. 	196. 	I must, 	however, 	respectfully dissent 	from the
remainder 	of 	the 	majority 	opinion.
1while
12
!while 	the majority opinion 	states 	at 	page 	3 	that 	it
reverses 	the 	regional 	attorney's 	dismissal 	of 	the 	charges 	based
on 	involuntary 	transfer, 	and again on pages 	10 	and 	11 	it 	states
it 	would 	find a 	prima 	facie 	case 	of 	unilateral 	change 	and 	of
retaliation 	based 	on 	the 	involuntary 	transfer 	and 	orders 	a
reversal 	and 	issuance 	of 	a 	complaint 	based 	on 	the 	involuntary
transfer, 	the 	Decision 	itself 	states 	on pages 	7 and 	8 	that 	it
affirms 	the 	regional 	attorney's 	conclusion 	that 	the 	charge
fails 	to 	state 	a unilateral 	change 	in 	transfer 	policy. 	I 	read
this 	to mean 	that, 	while 	the majority would 	not 	find 	a 	prima
facie 	case 	has 	been 	stated 	that 	the 	transfer 	itself 	was
unlawful, 	certain 	actions 	flowing 	from 	the 	transfer 	are 	to 	be
specified 	in 	the 	complaint, 	i.e., 	Petrich's 	change 	in hours 	and
change 	in 	job 	classification. 	This 	distinction would 	have 	an
impact 	on 	the 	remedy, 	should 	Charging 	Party prevail 	at 	the
hearing, 	in 	that 	it would 	not 	be 	appropriate 	to 	order 	the
District 	to 	return 	Petrich 	to 	his 	former 	job 	site 	when 	the
transfer 	itself 	is 	not 	unlawful.

Charging 	Party 	has 	asserted 	that 	certain 	conduct 	by 	the
District 	breached 	the 	negotiated 	agreement 	between 	CSEA 	and 	the
District 	and, 	therefore, 	violated EERA section 3543.5(c). 	The
majority 	opinion 	dismisses 	these 	two 	allegations 	(timing 	of
placement 	of 	material 	in 	Petrich's 	file 	and 	providing 	him 	a
corrected 	copy 	of 	a 	memo) 	on 	the 	ground 	that 	the 	conduct
asserted 	does 	not 	breach 	the 	contract. 	However, 	conduct which
breaches 	a 	negotiated 	agreement 	may 	nonetheless 	fail 	to
constitute 	an 	unfair 	practice. 	This 	distinction was
articulated 	in Grant, 	supra. 	In Grant 	the 	Board 	stated;
PERB is concerned, 	therefore, 	with a
unilateral 	change 	in 	established 	policy which
represents 	a 	conscious 	or 	apparent 	reversal 	of
a 	previous 	understanding, 	whether 	the 	latter
is 	embodied 	in 	a 	contract 	or 	evident 	from 	the
parties' 	past practice. 	. 	. 	. 	This is not to
say 	that 	every 	breach 	of 	contract 	also
violates 	the Act. 	Such 	a breach 	must 	amount
to a 	change 	of policy, 	not merely a 	default 	in
a 	contractual 	obligation, 	before 	it
constitutes 	a 	violation of 	the 	duty 	to
bargain. 	This 	distinction 	is 	crucial. 	A
change of policy has, 	by definition, 	a
generalized 	effect 	or 	continuing 	impact 	upon
the 	terms 	and 	conditions 	of 	employment 	of
bargaining 	unit members. 	On 	the 	other 	hand,
when 	an 	employer 	unilaterally 	breaches 	an
agreement 	without 	instituting 	a 	new 	policy 	of
general 	application 	or 	continuing 	effect, 	its
conduct, 	though 	remediable 	through 	the 	courts
or 	arbitration, 	does 	not 	violate 	the Act. 	The
evil of the employer's 	conduct, 	therefore, 	is
not 	the 	breaching 	of 	the 	contract 	per 	se, 	but
the 	altering 	of 	an 	established 	policy mutually
agreed 	upon 	by 	the 	parties 	during 	the
negotiation 	process. 	. . . 	By 	unilaterally
altering 	or 	reversing a 	negotiated 	policy, 	the
employer 	effectively 	repudiates 	the 	agreement.
13

(Grant, supra, 	pp. 	8-9, 	emphasis 	added.) 	The Board 	in Grant
proceeded 	to 	hold 	that 	a 	prima 	facie 	case 	will 	be 	successfully
stated 	if 	the 	complaint 	alleges 	facts 	sufficient 	to 	show:
(1) 	that 	the 	district 	breached 	or 	otherwise 	altered 	the
parties' written 	agreement; 	and 	(2) 	that 	those 	breaches
amounted 	to a change 	in policy, 	that 	is, 	they had a generalized
effect 	or 	continuing 	impact 	upon 	terms 	and 	conditions 	of
employment 	of 	bargaining 	unit members. 	In 	dismissing 	a part 	of
the 	association's 	charges, 	the 	Board 	found 	that 	the 	facts
asserted 	merely 	challenged 	the 	district's 	application 	of 	the
particular 	contract 	provision. 	The 	district 	did 	not 	deny 	its
contractual 	obligation, 	but 	claimed 	that 	it 	had 	properly
implemented 	the 	provision. 	The 	Board 	stated, 	"We 	find 	in 	these
competing 	claims 	nothing 	which 	demonstrates 	a 	'policy
change.'" 	(Id. 	at p. 	12).
The 	Grant 	test 	was 	devised 	to 	accommodate 	the 	interaction
between 	conduct 	that 	allegedly 	violates 	both 	a 	collective
bargaining 	agreement 	and 	EERA, 	in 	light 	of Government 	Code
section 	3541.5(b).2 Grant 	specifically 	holds 	that 	not 	all
2Section 	3541.5(b) 	states:
The 	board 	shall 	not 	have 	authority 	to 	enforce
agreements 	between 	the parties, 	and 	shall 	not
issue 	a 	complaint 	on 	any 	charge 	based 	on
alleged 	violation 	of 	such 	an 	agreement 	that
would 	not 	also 	constitute 	an 	unfair 	practice
under 	this 	chapter. 	(Emphasis 	added.)
14

contract 	violations 	constitute 	violations 	of 	EERA, 	and 	it
places 	the 	burden 	of 	articulating 	an 	EERA 	violation 	on 	the
charging party, 	as a 	pleading 	requirement. 	This 	is 	appropriate
in 	that 	this 	agency 	requires 	charging parties 	to 	state 	prima
facie 	cases, 	including 	factual 	allegations 	in support 	of 	the
charges, 	before 	a matter 	may proceed 	to 	a 	complaint 	and
hearing. 	See PERB Regulation 32615(a)(5).
Examination 	of 	established 	labor 	law principles 	reveals 	a
legislative 	and 	private 	sector 	preference 	for 	encouraging
parties 	to 	settle 	disputes 	involving 	the 	terms 	of 	the
collective 	bargaining 	agreement 	through 	the 	negotiated 	dispute
resolution mechanism of 	the 	contract. 	Thus, 	we 	find 	in
Government 	Code 	section 	3541.5(a) 	a 	jurisdictional 	prohibition
against 	the 	issuance 	of 	"a 	complaint 	against 	conduct 	also
prohibited 	by 	the 	provisions 	of 	the 	agreement 	between 	the
parties 	until 	the 	grievance machinery of 	the agreement, 	if 	it
exists 	and 	covers 	the matter 	at 	issue, 	has 	been 	exhausted,
either 	through 	settlement 	or 	binding 	arbitration."33
Similarly, 	under 	the National Labor 	Relations Act, 	a
contract 	violation 	is 	not 	in 	itself 	an 	unfair 	practice. 	See
1 	Morris, 	The 	Developing Labor 	Law 	(2d 	Ed. 	1983) 	Chapter 	19,
3It
15
3rt 	is 	not 	clear 	whether 	this 	language 	also prohibits 	the
issuance 	of 	a 	complaint where 	the 	contract 	provides 	for
advisory 	arbitration. 	Clearly, 	PERB 	does 	not 	defer 	to an
advisory arbitration 	decision. 	However, 	the point 	is, 	the
language 	of 	the 	section 	denotes 	a 	legislative 	preference 	for
utilization 	of 	the 	agreed-upon 	dispute 	resolution 	mechanism 	of
the 	contract.

section 	IV A, 	p. 	909 	et 	seq., 	and cases 	cited thereunder.
Consequently, 	the 	National 	Labor 	Relations 	Board 	(NLRB) 	and
courts 	have 	grappled 	with 	the 	question 	of 	whether 	the 	NLRB 	has
jurisdiction 	to 	interpret 	contracts 	between 	the 	parties. 	The
question 	has 	been 	answered 	in 	the 	affirmative, 	where 	such
interpretation 	is 	necessary 	for 	the 	board 	to 	resolve 	the 	unfair
practice 	charge. 	Thus, 	the United States 	Supreme Court, 	in the
leading case 	of NLRB v. 	C & 	C 	Plywood Corporation 	(1967) 	385
U.S. 	421 	[64 	LRRM 2065], 	held that 	the NLRB has 	jurisdiction to
interpret 	a 	contract 	provision 	where 	the 	employer 	raised 	the
provision 	as 	a 	defense 	to 	an 	unfair 	practice 	charge 	that
alleged 	the 	employer 	unilaterally 	implemented 	a 	premium 	pay
provision. 	In 	that 	case, 	the employer's 	unilateral 	action on a
matter 	within 	scope, 	i.e., 	wages, 	clearly constituted an unfair
labor 	practice 	in 	the 	absence 	of 	some 	defense, 	such 	as
contractual 	authorization.A4 The 	underpinning 	of 	the 	Court's
holding was 	that 	the 	board 	had 	done 	no 	more 	than 	to 	enforce 	the
union's 	statutory 	right 	to 	negotiate 	on 	behalf 	of 	its
membership, 	which 	right 	"Congress 	considered 	necessary 	to 	allow
labor 	and 	management 	to 	get 	on with 	the 	process 	of 	reaching
fair 	terms 	and 	conditions 	of 	employment 	- 	'to 	provide 	a means
by which 	agreement 	may 	be 	reached.'" 	Id. 	at 	428 	[64 	LRRM 	at
2068].
4 The 	contract 	at 	issue 	contained 	no 	arbitration 	provision,
and 	thus 	the 	Court 	stated 	that 	the 	Board's 	action was 	in 	no way
inconsistent 	with 	its 	previous 	recognition 	of 	arbitration 	as 	"an
instrument 	of 	national 	labor 	policy 	for 	composing 	contractual
differences." 	16. 	at 	426 	[64 	LRRM 	at 	2067].
16

Unlike 	the 	C & 	C 	Plywood case, 	supra, 	we have here 	an
individual 	employee, 	not 	represented 	by 	the 	exclusive
representative, 	who 	asserts 	nothing more 	than 	a 	breach 	of
contract 	by 	the 	employer. 	He 	does 	not 	allege 	that 	past 	history
in 	the 	District 	has 	imbued 	the 	contractual 	language 	with 	the
interpretation 	or 	understanding 	he 	puts 	forth. 	Significantly,
the 	exclusive 	representative, 	which 	is 	the 	other 	signatory 	to
the 	agreement 	and 	the 	only party 	that 	may 	negotiate 	with 	the
employer 	on 	behalf 	of 	Charging 	Party 	(Government 	Code 	section
3543), 	has 	not 	undertaken 	to 	represent 	Charging Party 	in 	this
dispute. 	Certainly, 	one 	inference 	to be 	drawn 	from 	this
absence 	is 	that 	the 	exclusive 	representative 	does 	not 	object 	to
the 	District's 	interpretation 	of 	the 	contract 	language.
Also, 	unlike 	C 	& 	C Plywood, 	where 	the 	employer 	unilaterally
implemented 	a 	new pay 	incentive 	plan, 	the 	employer's 	action 	at
issue 	here would 	not, 	in 	and of 	itself, 	clearly constitute 	an
unfair 	practice. 	Rather, 	to state a prima facie case, 	the
Charging 	Party 	would 	need 	to 	assert 	that 	the 	employer 	had 	an
established past 	practice. 	Alternatively, 	if 	the 	Charging
Party 	relies 	on 	the 	contract 	provision 	to 	establish 	the
practice, 	then 	to 	state a 	prima 	facie 	unfair 	there must 	be 	some
indication 	in 	the 	charges 	that 	the 	alleged 	breach 	of 	contract
"represents a 	conscious or 	apparent 	reversal 	of a 	previous
understanding" 	and 	that 	the 	violation 	has 	a 	generalized 	effect
or 	continuing 	impact. 	Grant, 	supra, 	emphasis added. 	As
further 	pointed 	out 	in Grant, 	the 	facts 	asserted 	there 	merely
17

challenged 	the 	district's 	application 	of 	the 	particular
contract 	provision. 	The 	Board 	held 	there 	was 	nothing 	in 	those
competing 	claims 	that 	demonstrated a policy change. 	So 	too, 	in
the 	present 	case, 	all 	we 	have 	before 	us 	is 	a 	claim by Charging
Party 	that 	the 	employer 	breached 	the 	contract 	when 	it 	gave 	him
ten 	days 	to 	respond 	to an 	adverse memo, 	rather 	than 	five,
before 	placing 	the 	adverse 	memo 	in 	his 	personnel 	file 	and 	that
the 	District 	failed 	to 	give 	him a 	corrected 	copy 	of 	a 	memo.
There 	is 	nothing 	in 	this 	claim 	that 	reflects 	a policy 	change.
While 	the 	contract 	language 	may 	be 	subject 	to 	Charging 	Party's
interpretation, 	it 	is also, 	and quite 	reasonably, 	subject to
the 	employer's 	construction, 	which 	is 	that 	the provisions 	give
the 	employee 	"at 	least" 	five 	days 	to 	respond 	and 	that 	the
District 	was 	not 	required 	to 	provide 	a 	corrected 	memo 	under 	the
facts 	asserted by 	Charging Party. 	Thus, 	all we 	are 	presented
with 	here 	is 	conflicting 	interpretations 	of 	contractual
language, 	which 	is 	insufficient 	under 	Grant 	to establish 	an
unfair 	practice 	by the 	employer. 	Therefore, 	it 	is 	unnecessary
to 	decide 	that 	no 	breach 	of 	contract 	has 	occurred 	and 	to 	do 	so
constitutes 	an 	unwarranted 	contract 	interpretation.
I 	would 	also 	dismiss 	the 	allegations 	concerning 	the 	alleged
breach 	of 	contract 	as 	a 	unilateral 	change 	on 	the 	grounds 	that
an 	individual 	employee 	lacks 	standing 	to 	assert 	a 	violation 	of
section 	3543.5(c) 	based 	on 	conduct 	that 	assertedly 	violates 	the
18

contract.5 The purpose 	of 	our 	agency 	is 	to 	insure 	the 	rights
granted 	to 	the 	parties 	by 	statute, 	so 	that 	the 	employer 	and 	the
exclusive 	representative, 	once 	one 	is 	selected, 	may meet,
negotiate 	and 	reach 	agreement 	on 	the 	terms 	and 	conditions 	of
employment 	as 	defined 	in 	EERA. 	Once 	such 	agreement 	is 	reached,
PERB 	should 	be 	loath 	to 	inject 	itself 	into 	the 	interpretation
of 	that 	agreement, 	unless 	it 	is 	absolutely 	necessary 	for 	the
enforcement 	of 	statutory 	rights 	and 	obligations. 	This 	is
especially 	true 	where 	one 	of 	the 	parties 	to 	the 	agreement 	is
not 	even a 	participant 	in 	these proceedings. 	Thus, 	we are 	not
asked 	in 	this 	case 	to preserve 	the 	union's 	right 	to 	negotiate,
and 	Charging 	Party 	himself 	does 	not 	enjoy 	this 	privilege.
(Government 	Code 	Section 	3543.)
The harm sought 	to 	be 	prevented by 	section 	3543.5(c) 	is 	the
undermining 	of 	the 	exclusive 	representative's 	role 	in
representing 	employees 	of 	the 	unit 	in 	their 	negotiations 	of
terms 	and 	conditions 	of 	employment 	with 	the 	employer. 	Thus,
until 	an 	exclusive 	representative 	is 	selected, 	the 	employer 	is
under 	no 	duty 	to meet 	and 	negotiate 	or 	consult with 	a 	non-
exclusive 	representative. 	Sections 3543.1 and 3543.5(c); 	San
Dieguito 	Union High 	School 	District 	(1977) 	EERB 	Decision
No. 	22.6 Similarly, 	once 	an 	exclusive 	representative 	is
5In 	so 	concluding, 	I 	would 	overrule 	the 	Board's 	decision
in 	South 	San 	Francisco Unified 	School 	District 	(1980) 	PERB
Decision No. 	112.
6prior 	to January 	1, 	1978, 	PERB was 	known as 	the
Educational 	Employment 	Relations 	Board.
19

selected, 	a 	nonexclusive 	representative 	has 	no 	standing 	to 	file
an 	unfair 	labor 	practice 	charge 	over 	matters 	involving 	wages,
hours, 	and 	other 	terms 	and 	conditions 	of 	employment. 	Hanford
Joint 	Union High 	School 	District 	(1978) 	PERB 	Decision No. 	58.
Allowing 	an 	individual 	employee 	to 	assert 	that 	the 	employer
violated 	the Act 	when 	it 	allegedly 	breached 	the 	contract
(assuming 	the 	Grant 	standard 	is 	met) 	forces 	PERB 	to 	interpret
the 	contract 	and 	render 	a 	binding 	decision 	on 	the 	meaning 	of
that 	contract, 	without 	the 	benefit of 	the 	exclusive
representative's 	position 	on 	the 	issue. 	This 	is 	analogous 	to
an 	individual 	taking 	a 	grievance 	to 	binding 	arbitration, 	which
is 	clearly 	prohibited 	by 	EERA 	section 	3543.
77 The 	import 	of
this 	section 	is 	to 	make 	certain 	that 	the 	exclusive
representative 	has 	a 	chance 	to 	state 	its 	views, 	should 	an
interpretation 	of 	the 	contract 	be 	reached 	that 	is 	contrary 	to
its 	understanding. 	This, 	no doubt, 	is a 	reflection of the view
that 	the 	grievance/arbitration 	process 	is 	all 	part 	of 	the
collective 	bargaining 	continuum. 	Steelworkers 	v. 	Warrior 	&
Gulf Navigation Co. 	(1960) 	363 U.S. 	574, 	581 	[46 LRRM 2416].
7Section 	3543 	provides 	in 	relevant 	part:
Any 	employee 	may 	at 	any 	time 	present
grievances 	to his 	employer, 	and have 	such
grievances 	adjusted, 	without 	the 	intervention
of 	the 	exclusive 	representative, 	as 	long 	as
- - -the 	adjustment 	is 	reached 	prior 	to
arbitration 	. 	. 	. 	and the adjustment is not
inconsistent 	with 	the 	terms 	of 	a 	written
20
•

Given 	these 	policy 	considerations, 	the 	Board 	should 	not 	issue 	a
complaint 	in a case where 	an 	individual 	employee 	asserts, 	as
the 	basis 	of a 	charge 	of 	unlawful 	unilateral 	change, 	a breach
of contract.
I 	dissent 	from 	the 	majority 	holding 	that 	a prima 	facie 	case
of 	unilateral 	action 	has 	been 	stated 	with 	respect 	to 	Charging
Party's 	change 	in 	job 	classification, 	duties 	and hours. 	The
regional 	attorney 	found 	in 	her 	investigation 	that 	the 	District
informed 	Petrich 	in writing, 	within 	one week 	of 	his 	receipt 	of
the 	schedule 	marked 	"Gardener/Custodian," 	that 	the 	schedule 	was
in error, 	he was 	classified as 	"Gardener," 	and 	that 	no
classification 	of 	"Gardener/Custodian" 	existed. 	Charging 	Party
was 	provided 	an 	opportunity 	by 	the 	regional 	attorney 	to 	amend
his charge, 	but 	failed to do so. 	In his exceptions, 	Charging
Party 	simply 	asserts 	that 	a 	"Gardener/Custodian" 	is 	really 	a
"Utility Person" 	at 	two pay 	ranges 	higher 	than 	gardener. 	These
assertions, 	when 	combined 	with 	the 	uncontested 	conclusion 	of
the 	regional 	attorney's 	letter 	to 	Petrich, 	do 	not 	constitute 	a
change, 	let 	alone 	an 	unfair 	practice.
On 	the 	issue 	of 	change 	in duties, 	the 	regional 	attorney
correctly 	applied 	PERB precedent 	in 	concluding 	that, 	even 	if
agreement 	then 	in 	effect; 	provided 	that 	the
public 	school 	employer 	shall 	not 	agree 	to 	a
resolution 	of 	the 	grievance 	until 	the
exclusive 	representative 	has 	received 	a 	copy
of 	the 	grievance 	and 	the 	proposed 	resolution
and 	has 	been 	given 	the 	opportunity 	to 	file 	a
response. 	(Emphasis 	added.)
21
I
\

Charging 	Party was 	performing more 	custodial 	duties, 	they 	are
reasonably 	contemplated 	within 	his 	job 	description. 	Contrary
to 	the 	holding of 	the majority opinion, 	no 	"de 	facto" 	change 	in
job 	classification 	has 	been 	sufficiently 	stated, 	where 	the 	job
description 	for 	"Gardener" 	specifically 	includes 	custodial
duties. 	There 	is 	no 	factual 	dispute 	to 	send 	to 	a hearing.
On 	the 	issue 	of 	Charging 	Party's 	alleged 	change 	in 	hours,
Charging 	Party 	asserts 	that, 	although 	the 	collective 	bargaining
agreement 	is 	silent, 	the District agreed, 	pursuant 	to
Government Code 	section 3543.5, 	that, 	once hours are
established, 	a 	change 	in hours 	is 	negotiable. 	This 	cannot be
read 	to 	mean 	that 	the 	District 	agreed 	to 	negotiate 	each 	and
every 	individual 	change 	in 	hours 	that 	results 	from 	transfers.
Petrich 	also 	cited 	a previous 	"mediation" 	situation, 	in which
PERB 	supplied 	a 	mediator 	to 	resolve 	a 	dispute 	between 	himself
and 	the 	District, 	that 	resulted when 	the 	District 	attempted 	to
change 	his 	work 	hours 	at 	his 	site 	in a 	nontransfer 	situation.
If 	Charging 	Party 	relies 	on 	this 	to 	demonstrate 	the 	District's
"agreement 	to 	negotiate a 	change 	in 	hours," 	which 	is 	not 	at 	all
clear 	from his 	charges, 	it 	is 	insufficient 	to support 	a
conclusion 	that 	Charging 	Party 	has 	alleged 	that 	this 	is 	the
existing 	practice 	regarding 	a 	change 	in 	starting 	times 	on
transfers. 	Likewise, 	the mere 	allegation 	that 	the 	District
"agreed" 	to negotiate 	a change 	is 	insufficient. 	This 	is 	so,
particularly 	in 	light 	of 	the 	regional 	attorney's 	investigation
which 	disclosed 	the 	District's 	position 	that 	its 	long-standing
22

practice 	on 	transfers 	is 	to 	conform an 	employee's 	work 	schedule
to 	the 	site 	to which 	he 	is 	transferred. 	After 	Charging 	Party
was 	informed 	of 	this 	in 	the 	regional 	attorney's 	warning 	letter,
he 	did 	not 	challenge 	or 	contradict 	that 	this 	is, 	in fact, 	the
practice 	on 	transfers. 	Nor 	did he 	assert 	that 	the 	agreement
referred 	to 	in 	his 	charges 	encompassed 	transfer 	situations, 	as
opposed 	to a 	change 	in 	hours at 	the 	same 	site. 	Without
sufficiently 	alleging 	the 	existing 	practice 	on 	change 	in 	hours
on 	transfers, 	the 	charge 	cannot 	state 	a 	prima 	facie 	case 	of
unlawful 	unilateral 	change 	in 	that 	practice.
Further, 	if 	the 	District 	has 	the 	right 	to 	involuntarily
transfer 	an 	employee, 	then 	clearly 	the 	District 	likewise 	has
the 	right 	to 	make 	minor 	adjustments 	in 	the 	starting 	and 	ending
times 	so 	that 	the 	employee's 	hours 	correspond 	to 	those 	of 	the
new site. 	This, 	of 	course, 	assumes 	there 	is no change 	in the
actual 	number 	of 	hours 	worked. 	Since 	Charging 	Party 	failed 	to
state 	a 	prima 	facie 	case 	of 	unlawful 	unilateral 	change 	in 	the
involuntary 	transfer, 	his 	charge 	that 	the 	District 	unlawfully
changed 	his 	hours 	must 	likewise 	fail.
On 	the 	issue 	of 	the 	involuntary 	transfer 	as 	a 	reprisal, 	the
majority 	opinion 	concludes 	Charging 	Party 	has 	stated 	a 	prima
facie 	case, 	in 	that 	he 	has 	engaged 	in 	numerous 	protected
activities. 	Further, 	unlawful 	motivation may be 	inferred,
according 	to 	the majority 	opinion, 	from 	(1) 	the 	fact 	that much
of 	Petrich's 	protective 	activity has 	resulted 	in 	extensive
conflict with 	the District, 	(2) 	the 	involuntary 	transfer
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followed 	on 	the 	heels 	of protected 	activity, 	and 	(3) 	the
District 	indicated 	that 	the 	transfer 	was 	made 	because 	of
dissatisfaction with 	Petrich's 	performance, 	rather 	than
manpower 	needs.
I 	disagree 	that 	the 	charges 	support 	a 	prima 	facie 	case 	of
retaliation, 	or 	that 	they 	support 	the 	majority opinion's
conclusion 	regarding 	unlawful 	motive. 	The 	charges 	themselves
do 	not 	even 	contain 	an 	allegation 	concerning 	reprisal, 	but
rather, 	merely 	set 	forth 	a 	sequence 	of 	events 	leading 	up 	to 	the
involuntary 	transfer. 	There 	is 	nothing 	in 	the 	charges 	filed 	by
Petrich 	that 	alleges 	that 	his 	protected 	activity 	has 	"resulted
in 	extensive 	conflict 	with 	the 	District." 	There 	is 	likewise
nothing 	in 	the 	charges 	that 	alleges 	that 	the 	District 	indicated
the 	reason 	for 	the 	involuntary 	transfer 	was 	not 	due 	to 	manpower
needs, 	but 	rather, 	because of 	its 	dissatisfaction with 	his
performance. 	The 	only other possible 	link 	is 	the 	timing, 	and
timing 	alone 	is 	insufficient, 	(see 	Charter 	Oak 	Unified 	School
District 	(1984) 	PERB Decision No. 	404), 	especially given the
history 	of 	Charging 	Party's 	problems 	in 	his 	employment.
In 	Charter 	Oak, 	id., 	the Board dismissed 	charges 	filed by
an 	employee 	that 	alleged 	the 	district 	retaliated 	against 	her
when 	it 	issued 	a 	letter 	recommending 	nonreemployment 	shortly
after 	the 	charging 	party 	had 	filed 	a 	grievance. 	The 	charges
included 	numerous 	documents 	that 	showed 	that 	the 	district's
dissatisfaction 	with 	her 	performance 	predated 	her 	protected
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activity. 	The 	Board 	stated;
For 	the 	same 	reasons, 	"coincidence 	in time,"
by 	itself, 	is 	insufficient 	to prove 	unlawful
motivation. 	We note 	that were 	this 	not 	so,
any 	employee 	who 	perceived 	that 	he 	or 	she
might 	be 	in 	danger 	of 	dismissal 	could, 	by 	the
mere 	act 	of 	filing a 	grievance, 	be 	assured of
a 	hearing 	before 	an 	administrative 	law 	judge
of 	this 	agency and, 	further, 	place 	the 	legal
burden 	of 	producing 	evidence 	on 	the 	employer
to prove, 	pursuant 	to 	the 	test 	set 	forth 	in
Novato, 	supra, 	that the discharge 	resulted
from a 	legitimate 	operational 	justification.
Such 	a 	state 	of 	affairs 	would 	be 	unwise 	and
unnecessary.
Charter 	Oak 	is 	applicable 	and 	controlling 	in 	the 	present 	case.
The 	regional 	attorney 	dismissed 	the 	reprisal 	issue 	on 	the
ground 	that 	Charging 	Party 	failed 	to 	show 	how 	the 	transfer 	was
adverse. 	However, 	I 	believe 	that an 	involuntary transfer 	is
itself 	sufficiently 	adverse, 	and 	nothing 	further 	need 	be 	shown
in 	that 	respect. 	I 	would, 	nevertheless, 	dismiss 	the charge on
the 	ground 	that 	Charging 	Party 	has 	failed 	to 	either 	allege 	or
offer 	facts 	sufficient 	to 	fulfill 	the 	remainder 	of 	the 	Novato
prima 	facie 	test.
For 	all 	of 	the 	foregoing 	reasons, 	I 	dissent 	and would
dismiss all 	the 	charges.
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Hesse, 	Chairperson, 	concurring and dissenting: 	I 	join 	in
Member 	Porter's 	concurrence 	and 	dissent. 	I 	write 	additionally
to 	note 	that 	the 	employer 	made 	no 	unilateral 	change 	in 	the
bargaining 	unit's 	hours, 	only 	in 	the 	Charging Party's 	hours.
As 	this 	Board 	has 	never 	required 	an 	employer 	to 	negotiate 	the
hours 	of 	each 	employee 	individually, 	I 	see 	no reason 	to 	issue 	a
complaint 	on 	an 	allegation 	that 	cannot 	possibly be 	a 	violation
of 	the Act, 	even 	if Petrich's 	hours were 	changed. 	I would 	thus
dismiss 	this 	allegation 	specifically, 	in 	addition 	to 	dismissing
the 	rest 	of 	the 	charge 	for 	the 	reasons 	set 	forth 	in Member
Porter's 	dissent.
26