Oak Grove School District (PERB 0582E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OAK GROVE EDUCATORS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
OAK GROVE 	SCHOOL 	DISTRICT,
Respondent.
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) 	Case 	No. 	SF-CE-622
PERB 	Decision No. 	582
June 	30, 	1986
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Appearances: 	Priscilla Winslow, 	Attorney 	for 	Oak 	Grove
Educators Association, 	CTA/NEA; 	Walters 	and Shelburne by
Diana D. 	Halpenny 	for 	Oak 	Grove 	School 	District.
Before Hesse, 	Chairperson; 	Morgenstern and Burt, 	Members.
DECISION
BURT, 	Member: 	This 	case 	comes before 	the Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed by
Respondent, 	Oak Grove 	School District 	(District) 	to the
proposed 	decision of 	a PERB administrative 	law 	judge 	(ALJ).
The ALJ 	found 	that 	the District 	violated 	section 	3543.5(a),
(b), 	(c) 	and 	(d) 	of the Educational Employment Relations Act
(EERA)1 by 	its 	conduct 	in establishing a 	"Teachers 	Forum"
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory references herein 	are 	to 	the 	Government
Code 	unless 	otherwise 	indicated.
Section 3543.5 	(a), 	(b), 	(c) and (d) provides:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
)
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(Teachers 	Forum 	or 	Forum) 	and by unilaterally 	changing 	teacher
worktime 	by 	increasing 	the 	minimum 	and 	maximum 	number 	of
minutes 	of 	student 	instructional 	time.
(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.
Specifically, 	the 	District 	excepts 	to 	the ALJ's 	conclusion
that 	the 	Forum was 	an employee 	organization 	that had 	as 	a
primary purpose 	the 	representation of 	employees 	in 	their
employment 	relations 	with 	the 	District. 	It 	also denies 	that 	it
in any way 	interfered with the 	exercise of 	employee 	rights, 	or
that 	it bypassed 	the 	exclusive 	representative, 	Oak Grove
Educators Association, 	CTA/NEA 	(OGEA or Association).
With 	regard 	to 	the 	change 	in teacher worktime, 	the 	District
does 	not 	except 	to 	the ALJ's 	conclusion that 	it 	unilaterally
changed 	a matter 	within 	scope. 	Instead, 	it argues 	that 	the
change 	was 	consistent 	with past practice. 	Claiming
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that 	the 	changes 	were 	not made 	in response 	to the 	change 	in 	the
District's 	Administrative 	Regulation 	6310 	(AR or AR 6310) 	and
were 	therefore 	within 	the 	scope 	of past practice 	of 	changes,
the 	District 	challenges 	that ALJ's 	factual 	conclusions 	with
regard 	to 	each 	individual 	school. 	It 	also excepts 	to 	the
remedy, 	arguing 	in general 	that 	a back-pay award 	is punitive,
and 	reasserting 	its 	argument 	that, 	in this 	instance, 	a back-pay
award 	is 	not 	warranted 	since 	the 	matter has 	since been
negotiated.
In 	accordance 	with 	the 	discussion below, 	we 	affirm 	the
ALJ's 	finding 	that 	the 	District's 	conduct 	in establishing 	the
Forum violated section 3543.5(a), 	(b), 	(c) 	and 	(d) 	and his
finding 	that 	the 	change 	in 	teacher 	worktime 	was 	an unlawful
unilateral change 	in violation of 3543.5(a), 	(b) 	and 	(c). 	As
no 	exceptions 	were 	taken to 	the ALJ's 	dismissal 	of 	charges
based 	on 	the 	employee 	luncheon, 	we 	affirm 	that 	determination 	as
well.
FACTUAL 	SUMMARY2
When 	Dr. 	Robert 	Lindstrom was hired 	as 	superintendent 	at
Oak 	Grove 	School 	District 	in 1979, 	one of his primary
2The 	facts 	regarding 	the 	Teachers 	Forum 	are 	not 	in
dispute 	and 	are 	summarized below. 	The 	facts 	regarding 	the
adoption 	of 	the 	new 	District 	policy on 	student 	instructional
time 	are 	similarly undisputed, 	although 	the parties 	do not
agree 	about 	the 	effect 	of 	the 	adoption of 	the policy at
particular 	schools.
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responsibilities 	was 	to 	improve 	communications 	with 	teachers.
In order 	to do so, 	Lindstrom 	first granted one 	extra 	leave day
a month 	to the 	leaders of 	the 	various 	unions 	in 	the 	District,
with 	the 	condition 	that 	at 	least part 	of 	each of 	these 	days
would be 	spent 	discussing 	District 	problems 	with 	the
superintendent. 	Lindstrom 	also visited 	the 	schools 	in 	the
District 	to meet with 	teachers. 	During these meetings, 	it was
suggested 	that 	the 	superintendent 	revive 	a practice 	of 	a
previous 	superintendent 	called 	the 	"superintendent's
roundtable." 	Lindstrom hoped 	that 	the 	roundtable 	would 	provide
an opportunity 	for 	teachers 	to deal 	face-to-face 	with the
superintendent. 	He 	testified 	that he 	never 	intended 	that 	the
roundtable 	take 	the 	place 	of 	negotiations 	with 	the Association.
One 	of 	the 	teachers 	who 	suggested 	the 	resurrection of 	the
roundtable 	was 	Claudelle 	Bonaccinie, 	an Association member.
Lindstrom 	testified 	that 	he 	expressed 	concern 	to 	Bonaccinie
both as 	to 	the 	amount 	of 	time 	the 	roundtable 	would 	require 	and
whether 	the 	Association 	might 	be 	concerned 	that 	the 	roundtable
was 	an attempt 	to 	infringe 	on 	the Association's 	authority.
Although 	Bonaccinie 	did 	not 	recall 	precisely 	this 	statement,
she 	did 	remember 	Lindstrom 	wondering 	what 	the 	Association 	would
think. 	She 	said 	she 	told him 	she 	could 	not 	speak 	for 	the
Association, 	but 	that 	she personally 	thought 	the 	roundtable 	was
a 	good 	idea.
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Lindstrom 	issued a bulletin on August 	27, 	1981, 	outlining
his 	plans 	for 	increasing 	communication, 	including 	the
reinstitution of 	the 	roundtable. 	The memo read 	in part:
I 	am 	also 	establishing 	a 	certificated 	staff
roundtable 	which will 	consist 	of 	a member
from each of 	the 	schools. 	This 	group will
meet 	monthly, 	and 	it will be 	an opportunity
to discuss 	issues 	and provide 	some 	creative
solutions 	to problems 	facing 	education. 	I
hope 	that 	through 	this 	forum we 	will 	be 	able
to discuss 	creative 	approaches.
Perhaps 	even 	the 	air-conditioning 	systems
can be made well; 	who knows?
The 	group became 	known 	as 	the 	Teachers 	Forum, 	composed of
one 	staff 	representative 	from 	each 	school. 	Selection of 	the
school 	representative was 	left 	up 	to each principal; 	some 	asked
for 	volunteers, 	some allowed teachers 	to 	select 	a
representative, 	and 	some 	selected 	their 	school's 	representative
themselves. 	OGEA was 	not 	invited 	to 	send a 	representative;
Lindstrom 	testified 	that he 	wanted 	to 	keep 	the 	group 	as
"non-political" 	as 	possible 	and wanted 	to avoid having 	a
"watchdog" 	in 	the 	group. 	OGEA members 	were 	not precluded 	from
attending, 	however, 	and several of 	the 	Forum's 	representatives
were 	also 	OGEA members.
Meetings 	were held once 	a month. 	Representatives 	with
questions 	or 	issues 	to 	raise 	would 	telephone 	the
superintendent's 	secretary 	in advance, 	and 	she 	would 	include
those 	items 	on 	the 	agenda. 	The 	superintendent 	did not choose
agenda 	items 	except 	in response 	to questions 	raised. 	Various
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representatives 	would 	raise 	the 	issues 	of 	interest 	to them;
there 	would be 	general 	discussion, 	and 	some 	questions 	and
answers. 	The 	superintendent's 	secretary took minutes, 	and the
representatives 	reported back 	to 	their 	respective 	schools 	at
the 	regular 	mandatory 	faculty meetings.
On one District 	committee, 	the budget 	study committee, 	a
Forum 	representative 	was 	appointed 	to 	participate 	along 	with
the 	OGEA 	representative.
At 	the hearing, 	OGEA 	introduced minutes 	of 	the meetings 	and
meeting 	agendas 	to 	show 	that 	some 	of 	the 	topics 	discussed 	at
forum meetings 	were 	within 	the 	scope 	of 	negotiations 	and/or
were 	actually subjects of 	negotiations 	at 	the 	time. 	For
example, 	as well 	as 	items of educational 	concern, 	the 	following
subjects 	were 	discussed: 	overloaded 	classrooms 	and 	class 	size,
teachers' 	working 	five hours 	without 	a break 	or preparation
period, 	differences 	in lunch prices among schools, 	shared
contracts, 	whether Martin Luther King Day was 	a holiday, 	a
staff 	incentive 	award 	program 	and 	the 	status 	of 	laid-off
teachers 	now working 	as 	substitutes.
The 	District 	introduced 	testimony 	to 	show 	that 	no actual
negotiations 	took 	place 	over 	the matters 	which were 	within 	the
scope 	of 	representation; 	the 	conversation was 	repeatedly
described 	as 	informational. 	The 	superintendent 	often 	concluded
such 	discussions by 	remarking 	that 	the 	issue 	was 	the 	subject 	of
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ongoing 	negotiations 	and 	was 	inappropriate 	for 	further
discussion.
Both 	Lindstrom 	and 	the 	subsequent 	superintendent,
Anthony Russo, 	testified 	that 	they did 	not 	want 	the 	Forum to
disrupt 	the 	District's 	relationship with 	OGEA and went 	out 	of
their 	way 	to avoid 	discussing 	negotiable 	items. 	No proposals
or 	counterproposals 	were 	made, 	and the ALJ concluded 	that 	there
was 	no 	credible 	evidence 	that 	any 	complaints 	were 	resolved 	as 	a
result 	of 	Forum 	discussions.
Nevertheless, 	it 	is clear 	from the 	record that 	various
teachers 	came 	to 	view 	the 	Teachers 	Forum as 	a more 	successful
route 	to 	solving problems 	than 	the Association. 	One OGEA
representative 	testified:
On 	going back 	to 	our building 	and 	discussing
this with our building superintendent, 	it
was 	the 	feeling 	that 	there 	would be 	quicker
service 	if 	the 	teacher 	Forum 	representative
were 	to deal 	with 	this problem because 	he
had 	direct 	communication 	with 	the
superintendent 	and he 	met 	with 	the
superintendent every two weeks. 	Whereas, 	if
the 	concerns 	were 	expressed 	through 	the
teachers' 	Association, 	it would have to go
through 	channels 	and 	it would be 	a 	long 	time
before anything happened. 	So, 	using that as
an example, 	it appeared that 	the 	teachers'
Forum would provide better, 	faster 	services
for 	the health 	and 	safety of 	teachers 	than
would 	expressing 	those 	same 	concerns 	through
Association 	channels.
An 	OGEA building 	representative 	at 	Herman 	Junior 	High
School, 	who was 	also a Forum member, 	suggested at an OGEA
meeting 	that 	it would be better 	to handle 	the 	suggested
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elimination 	of 	a prep 	period 	through 	the 	Forum 	rather 	than
OGEA. 	Thomas Richardson, 	the 	OGEA representative 	at 	Dickinson
School, 	testified 	that teachers 	at his 	school 	felt 	that 	the
Forum was 	a more 	effective 	way 	to get 	things 	done 	and 	that
attendance 	at 	OGEA meetings 	fell 	off 	by about 	one-half 	during
the 	term of 	the 	Forum meetings. 	Richardson voiced opposition
to 	faculty participation 	in 	the 	Forum 	and he believed 	this
position 	contributed 	to 	the 	fact 	that he 	was 	voted 	out 	as
building 	representative.
Instructional 	Time 	Changes
There 	are 	several 	types 	of 	instructional 	schedules 	in 	the
District. 	Most 	schools have a 	five-day week, 	including 	four
regular days 	and one minimum, 	or 	staff development, 	day. 	Many
schools 	also use 	staggered 	schedules, 	where half of 	the
students 	begin 	school 	earlier 	than the 	rest, 	and 	the 	other half
stay 	later. 	Some 	schools 	use 	"team teaching," 	where 	students
are 	taught 	different 	subjects by different 	teachers. 	Others
have 	"functional" 	schedules 	where 	students 	remain with one
teacher 	all 	day.
The 	range 	of 	time 	identified 	as 	student 	instructional 	time
for 	the 	previous 	10 years 	was 	established by AR 6310. 	That AR,
in effect 	from 	1974 	to the beginning of 	the 	1981-82 	school
year, 	provided the 	following:
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Class 	Hours
A. 	The 	following 	time 	parameters 	should be
adhered 	to 	unless 	prior 	approval 	for
deviation 	is 	obtained 	from 	the 	Assistant
Superintendent 	for 	Educational 	Services.
Grades
Minimum
Day
Maximum
Day
Minimum
Week
Maximum
Week
K 	180 	180 	900 	900
1,2,3 	240 	260 	1,200 	1,300
4,5,6 	285 	305 	1,425 	1,525
B. 	Schools 	operating on a 	single 	schedule
may utilize 	a minimum 	day of 	230 minutes
in grades 1, 	2 and 3, 	and 240 minutes 	in
grades 4, 	5, 	6, 	7 and 8 if desired, 	for
staff 	development 	and 	parent 	conference
periods.
C. 	Schools 	operating 	on 	split-day 	schedules
shall 	not 	utilize 	minimum days 	of 	less
time 	than 	stated 	in 	item A.
D. 	The principal 	of 	each 	school 	shall
submit 	a copy of 	the planned
daily/weekly 	schedules 	of 	the 	school 	to
the 	Assistant 	Superintendent 	for
Educational 	Services 	no 	later 	than 	three
weeks 	prior 	to 	the 	opening of 	school
each year.
Before 	the beginning of 	school 	in 1981, 	the 	District
revised AR 6310 	to 	increase 	the 	minimum 	and 	maximum minutes 	for
student 	instructional 	time. 	The 	District provided 	no 	notice 	to
OGEA prior 	to the 	adoption or 	implementation of 	the 	new AR, 	and
the Association did 	not become 	aware 	of 	the 	change 	until 	school
began.
Revised AR 	6310 	provides 	the 	following:
Class 	Hours
A. 	The 	following 	time 	standards 	shall 	be
observed 	unless 	prior 	approval 	for
deviation 	is 	obtained 	from 	the Assistant
Superintendent 	for 	Educational 	Services.
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NON-STAGGERED 	READING 	SCHEDULE
Grades Min.
Day
Max.
Day Min.
Week
Max.
Week
K 	180 	- 	240 	900 	- 	1200
1,2,3 	265 	- 	290 	1325 	- 	1450
4,5,6 	300 	- 	320 	1500 	- 	1600
7,8 	300 	- 	325 	1500 	- 	1625
STAGGERED 	READING 	SCHEDULE
Grades
Min.
Day Max.
Day Min.
Week Max.
Week
K 	180 	- 	240 	900 	- 	1200
1,2,3 	250 	- 	275 	1250 	- 	1375
4,5,6 	285 	- 	305 	1425 	- 	1525
7,8 	300 	- 	325 	1500 	- 	1625
B. 	The principal 	of 	each 	school 	shall
submit 	a 	copy of 	the planned
daily/weekly 	time 	schedules 	of 	the
school 	to 	the Assistant 	Superintendent
for 	Educational 	Services 	no 	later 	than
June 	1 of 	each 	school year.
Although 	student 	instructional 	time 	does 	not 	correlate
precisely to 	teacher 	instructional 	time, 	the 	two are 	closely
related 	and 	the 	record 	indicates 	that 	increases 	in 	student
instructional 	time 	generally produces 	increases 	in 	teacher
instructional 	time.
The 	change 	in AR 3610 	was 	first 	discovered by Wanda McKoin,
an OGEA officer who 	teaches 	at 	Del 	Roble 	School. 	McKoin
received 	a 	new 	schedule 	reflecting 	the 	increase 	in 	teacher
instructional 	time 	at 	an orientation meeting 	at 	the beginning
of 	the 	school 	year. 	She protested 	the 	change 	as 	violating
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AR 6310 	and 	filed 	a 	grievance.3 The 	principal 	told 	McKoin
that AR 6310 had 	been changed 	and 	showed her 	a 	copy of 	the 	new
regulation. 	In 	late 	September, 	the OGEA president officially
received 	a 	copy of 	the 	revised AR.
On October 	8, 	1981, 	the Association 	filed a 	second
grievance 	demanding 	a 	return to 	the 	1980-81 	teacher
instructional 	time 	and protesting 	the 	District's 	failure 	to
discuss 	the 	change 	with the Association. 	The 	District
responded 	that 	any change 	in 	the 	instructional 	day was 	within
the 	District's 	managerial prerogative 	as 	long as 	it 	did not
violate board policy, 	specific 	contract 	language, 	or 	state
law. 	It 	denied the 	grievance.
The record reveals that, 	in general, 	the 	increase 	in
teacher 	instructional 	time 	was 	taken 	from preparation 	time.
Thus, 	the 	revision of AR 6310 	increased 	the 	instructional 	time
for 	which 	the 	teachers 	were 	required 	to prepare while 	reducing
the 	time 	in which 	to do 	it. 	The 	record 	shows 	that 	the
increased 	instructional 	time 	required 	teachers 	to perform 	more
work 	during 	their breaks, 	preparation periods 	and 	time 	at home.
The 	District 	presented 	evidence 	that 	unilateral 	changes 	in
the 	instructional 	schedules had been made 	in previous years,
usually 	to 	accommodate problems 	with bus 	schedules.
33 The	The 	agreement between 	the 	parties 	does 	not provide 	for
binding 	arbitration.
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James 	Hastings, 	Assistant 	Superintendent 	for Administration
Services, 	testified that, 	in any given year, 	approximately six
of 	twelve 	schools 	where 	transportation was 	provided had 	their
schedules 	changed 	for 	this 	reason, 	with one 	to 	three 	schools
actually experiencing changes 	in 	instructional 	time. 	Hastings
estimated 	the 	changes 	averaged about 	10 minutes, 	with 	15
minutes 	being 	the 	maximum change 	in 	instructional 	time.
Changes 	in 	schedules 	and 	in 	student 	contact 	time 	occurred
on a 	school-by-school basis 	for other 	reasons 	as 	well. 	Some
changes 	were 	made 	to 	accommodate 	staggered 	reading 	schedules 	or
staff 	development 	days. 	Others were made 	simply because 	a 	new
principal 	wished 	to 	alter 	the 	schedule. 	Although 	sometimes
done 	unilaterally, 	these 	changes 	were 	frequently made 	after
discussions 	with 	the 	teaching 	staff 	or 	OGEA representative. 	In
general, 	however, 	in the past they were done on a
school-by-school basis by the principal 	and, 	in the end, 	were
within 	the 	parameters 	of 	the previous AR 6310. 	OGEA never
objected.
While 	the 	individual 	school 	principals had 	leeway making
minor 	alterations 	in 	schedules, 	they were 	required to remain
within 	the 	guidelines 	of AR 6310 	unless 	they 	received 	approval
to 	deviate 	from 	the 	AR 	from 	the 	superintendent 	for 	educational
services. 	None 	of 	the previous 	changes 	in 	instructional 	time
resulted 	from 	District-wide 	changes.
12	
.

Schedule 	changes 	occurred at 	14 	schools 	in the 	fall 	of
1981. 	The 	specifics of 	the changes at 	some of 	these 	schools
will 	be 	discussed below 	in 	light 	of 	the 	District's 	exceptions.
DISCUSSION
Teachers 	Forum
Section 	3543.5(d) 	of EERA provides 	that 	it 	shall be
unlawful 	for 	a public 	school 	employer 	to:
(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.
Initially, 	the District 	argues 	that 	it was 	not 	in violation of
section 	3543.5(d) 	by 	its 	formation of 	the 	Teachers 	Forum 	since
the 	Forum 	is 	not 	an 	"employee 	organization."
In section 3540.l(d), 	EERA provides 	the 	following
definition:
(d) 	"Employee organization" 	means any
organization which 	includes 	employees 	of 	a
public 	school 	employer 	and which has 	as 	one
of 	its 	primary purposes 	representing 	those
employees 	in 	their 	relations 	with 	that
public 	school 	employer. 	"Employee
organization" 	shall 	also 	include 	any person
such an organization authorizes 	to act 	on
its behalf.
Here, 	there 	is 	no question that 	the 	Teachers 	Forum 	includes
employees of 	the 	employer. 	The central 	question 	is whether 	it
has 	as 	one 	of 	its 	primary purposes44 representing 	employees 	in
their 	relationship 	with 	the 	employer.
13
4	4 rt	1t 	need 	not be 	the primary purpose, 	only one 	of 	the
primary purposes.

In 	seeking 	to define 	"employee 	organization," 	the 	Board has
previously 	determined 	that 	an 	organization 	need 	not 	have 	formal
structure, 	seek exclusivity, 	or be 	concerned with all 	aspects
of 	the 	employment 	relationship 	in order 	to constitute 	a
statutory 	labor 	organization. 	The 	Board 	adopted 	the 	National
Labor 	Relations 	Board's 	(NLRB) 	approach 	in 	inquiring whether
the 	group has 	as 	a 	central 	focus 	the 	representation of
employees 	on employment 	related matters. 	State 	of 	California
(Department of 	Developmental Services) 	(1982) 	PERB Decision
No. 	228-S.
The 	language 	in the comparable 	section 2(5) 	of 	the National
Labor 	Relations Act 	(NLRA) 	is 	somewhat 	different, 	defining an
employee 	organization as,
. 	. 	. 	any organization of any kind, 	or any
agency 	or 	employee 	representation 	committee
or plan, 	in which employee participate 	and
which exists 	for 	the purpose, 	in whole or 	in
part, 	of dealing with employers 	concerning
grievances, 	labor disputes, wages, 	rates of
pay, 	hours of employment, 	or conditions of
work.
The 	NLRB has 	interpreted 	the 	"dealing 	with" 	language 	very
broadly, 	to 	find a 	variety of employee 	committees 	to be 	labor
organizations. 	For example, 	in Cabot Carbon Co., 	(1957) 	117
NLRB 	1633 	[40 LRRM 1058], 	enforced by the 	Supreme 	Court 	in NLRB
v. 	Cabot Carbon Co. 	(1959) 	360 U.S. 	203 [44 LRRM 2204], 	the
board 	found 	an employee 	committee 	system, 	where 	employees 	met
with management 	to discuss mutual problems, 	was 	a labor
14

organization within the meaning of 	section 	2(5) 	since 	it 	dealt
with 	grievances 	and working 	conditions. 	In 	upholding 	the
board's 	order, 	the 	court 	rejected 	two of 	the arguments 	made
here 	by 	the 	employer. 	The 	court 	found 	that 	"dealing with" 	was
not 	synonymous 	with bargaining 	and 	that 	employee 	committees
could 	be 	found 	to be 	statutory 	labor 	organizations 	regardless
of 	whether 	they 	actually negotiated 	with 	the 	employer.
The 	court 	also 	rejected 	the 	employer's 	argument 	and 	found
that NLRA section 9(a), 	which permits 	any 	individual 	employee
to present grievances 	to the employer, 	and which 	is 	analogous
to 	section 3543 of EERA, 	does not permit 	an employer 	to set up
an organization 	to 	deal 	with 	the 	employer 	on matters
appropriate 	to 	collective bargaining.5 Although 	the 	NLRB has
5 See 	also Thompson Ramo Woolridge 	(1961) 	132 NLRB 	993 	[48
LRRM 	1470] 	(in determining whether an organization 	is 	a
statutory 	labor 	organization, 	the 	sole 	question 	is 	whether 	one
of 	its purposes 	is 	to deal with employers 	concerning
grievances, 	wages, 	hours or conditions of work, 	etc., 	and the
expressing of 	views 	is 	sufficient 	to constitute 	"dealing
with"); 	NLRB v. Ampex Corp. 	(7th Cir. 	1971) 	442 F.2d 82, 	[77
LRRM 2072], enforcing 	168 NLRB 	742 	(1968) 	[67 LRRM 1134] 	(a
communications 	committee was 	an employee 	organization; 	the
statutory definition of 	labor organization is 	very broad); 	M-W
Education Corp. 	(1976) 	223 NLRB 495 	[92 LRRM 1274] 	(an Employee
Council, 	where 	employee 	representatives 	met 	with management 	to
discuss 	grievances 	and conditions 	of 	employment 	is 	a 	labor
organization); 	Alta Bates Hospital 	(1976) 	226 NLRB 485 	[93 LRRM
1288] 	(an advisory 	committee 	to 	facilitate 	discussion of
employee 	complaints 	to promote better 	relations 	and 	new 	ideas
is 	a 	labor 	organization; 	that 	it has 	no authority to negotiate
is 	immaterial, 	as 	is 	the 	fact 	that 	the 	employer had no 	intent
to violate 	the 	law—motive 	is 	irrelevant). 	With 	regard 	to
educational 	institutions, 	see 	Stephens 	Institute 	(1979)
241 NLRB 	454 	[100 LRRM 1603] 	(a 	faculty 	senate 	found 	to be 	an
unlawfully dominated 	labor organization).
15

16
somewhat 	narrowed 	its 	interpretation 	of 	"dealing with,"66 it
continues 	to define 	"labor 	organization" 	broadly.
In 	the past, 	PERB has 	given similarly broad 	construction 	to
the 	representation rights 	of 	employee 	organizations. 	In State
of California 	(Department of Developmental Services), 	supra, 	at
p.6, 	where we 	found 	that 	an employee-tenant 	group 	constituted
an 	"employee 	organization," 	PERB 	stated:
We need not decide. 	. 	. whether the housing
concerns herein are 	within 	scope 	under 	SEERA
[footnote omitted]. 	Rather, 	we need only
determine 	that 	they were 	within 	the 	much
broader 	ambit 	of 	"employer-employee"
relations. 	[Emphasis 	added.]
The 	Board has 	found 	employers 	guilty of 	domination 	and
interference 	charges 	in Antelope 	Valley 	Community 	College
District 	(1979) 	PERB Decision No. 	97, 	where the district
sponsored 	the 	establishment 	of 	an 	alternative 	organization
during 	a 	California 	School 	Employees 	Association 	organizing
drive 	and 	in 	Sacramento 	City Unified 	School 	District 	(1982)
PERB 	Decision No. 	214, 	where 	the district met and negotiated
with 	an employee 	council 	in the 	face 	of 	a pending 	question
concerning 	representation. 	In 	Clovis 	Unified 	School 	District
(1984) 	PERB Decision No. 	389, 	it was 	found that the district
6See 	Sparks Nugget, 	Inc. 	(1977) 	230 NLRB 275 	[95 LRRM
1298] 	(grievance 	review panel 	not an employee organization);
Mercy-Memorial Hospital Corp. 	(1977) 	231 NLRB 1108 	[96 LRRM
1239J 	(an employer-employee 	grievance 	committee 	found 	not 	to be
"dealing with" 	the employer).

violated 	section 3543.5(a), 	(b) 	and 	(d) 	by favoring the 	faculty
senate 	over 	the 	association during 	the 	period 	immediately
preceding 	an election. 	The 	senate 	met 	with 	the 	administration
concerning salaries, 	the calendar, 	health benefits, 	the
grievance 	policy, 	curriculum 	and 	textbooks. 	None 	of 	the
parties 	ever 	contended 	that 	the 	senate was 	not 	a 	labor
organization.
Here 	the 	record 	shows 	that 	the 	Forum was 	established 	and
used 	to 	improve 	communications 	and 	solve problems. 	It
functioned 	as 	a 	representative body, 	with one 	teacher
representing 	each 	school 	and 	raising 	at 	the 	meetings 	problems
suggested by teachers 	from 	that 	school. 	Many of 	those 	problems
touched 	on 	matters 	of 	employment 	relations 	and 	working
conditions—the air conditioner, 	prep periods, 	etc. 	Thus,
although no actual 	negotiations 	took place, 	negotiable 	items
were 	indeed 	discussed.
The 	record 	also 	shows 	that, 	although various 	teachers
suggested 	topics 	to be discussed at 	the 	Forum meetings, 	the
agenda was 	finalized 	at 	the 	superintendent's 	office. 	Although
the 	record 	indicates 	the 	superintendent 	would 	end 	discussions
of 	certain 	topics 	by 	saying 	they 	concerned 	negotiable 	items 	and
were 	therefore 	not 	appropriate 	for 	discussion at 	the 	Forum, 	he
apparently did 	not 	take 	steps 	to prevent 	such 	items 	from being
raised and addressed 	in the 	first place. 	Moreover, 	it 	is 	clear
that, 	whatever 	the original 	intent, 	the Forum came 	to be
17

perceived 	by employees 	as 	a better 	way 	to 	solve 	problems
involving 	working 	conditions 	than 	through 	OGEA.
- Under 	the 	circumstances here, 	we 	find the Teachers Forum to
be 	an employee 	organization within the meaning of 	3543.5(d).
Having 	so 	found, 	there 	is 	no question 	that 	the 	organization was
dominated by 	the 	District 	in violation of 	section 	3543.5(d).
It was 	established by the 	superintendent, 	who directed 	the
principal 	of 	each 	school 	to provide 	a 	representative,
appointing one 	if 	necessary. 	Meetings 	were 	scheduled 	during
working hours 	for which employees 	were paid, 	and a 	report was
made 	of 	these 	meetings 	at 	mandatory 	faculty meetings 	of 	the
individual 	schools. 	None of 	these privileges was 	accorded to
the Association. 	At 	some 	schools, 	the Forum meetings 	were
noticed 	in 	the 	principal's 	letter, 	while Association meetings
were 	not.
This 	is 	not 	to say that 	all 	faculty councils 	or groups 	are
per 	se 	unlawful, 	or 	that 	individual 	employees 	cannot 	speak 	to
their 	employers 	about 	working 	conditions, 	including 	those
within 	the 	scope 	of 	representation. 	But 	when the 	District 	sets
up 	an organized 	group 	of 	teachers 	to meet 	at 	regular 	intervals
on 	school 	time 	to discuss 	topics of mutual 	interest, 	it permits
discussion 	of 	negotiable 	subjects 	at 	its 	own 	risk.
We 	also hold 	that 	the 	District 	violated 	section 	3543.5(a)
by the 	same 	conduct. 	As 	noted 	in Sacramento City, 	supra, 	PERB
will 	find a 	violation of 	section 	3543.5(a) 	where 	an employer's
18

actions 	tend 	to or 	actually do harm 	to 	employee 	rights, 	and 	the
employer 	is 	unable 	to 	justify 	those 	acts by operational
necessity. 	Here, 	there was 	evidence 	that 	the establishment of
the 	Teacher 	Forum 	in 	fact 	undermined 	the Association 	in 	the
eyes 	of 	its 	members 	who believed 	that 	the 	Forum would provide
quicker 	action. 	It 	is 	exactly 	that harm 	that
section 3543.5(a), 	(b) 	and 	(d) 	are 	intended to prevent by
making 	it 	unlawful 	for 	employers 	to establish organizations
which 	they 	control 	to 	compete 	with 	the 	exclusive 	representative.
The 	record 	shows 	no 	operational 	necessity 	that 	justified
the 	District's 	action. 	While 	it may well have wished 	to
improve 	communications, 	it might have done 	so 	in a variety of
ways 	not 	proscribed by the 	law, 	including 	improving
communications 	with 	OGEA.
The Association 	also 	claims 	that 	the 	District 	failed 	or
refused 	to 	negotiate 	with 	the Association 	in violation of
section 	3543.5(c) 	by bypassing 	the 	exclusive 	representative 	in
its 	dealings 	with 	the 	Forum. 	Such a charge 	usually 	involves
the 	communications 	of 	the 	employer 	with 	the 	employees 	about
negotiations. 	See Muroc Unified School 	District 	(1978) 	PERB
Decision No. 	80; 	Modesto City Schools 	(1983) 	PERB Decision No.
291.
In 	determining 	the propriety of 	an 	employer's 	effort 	to
communicate directly with employees, 	the 	effect 	upon the
authority of 	the 	exclusive 	representative 	is 	critical. 	Muroc
Unified School 	District 	(1978) 	PERB Decision No. 	80; 	Goodyear
19

Aerospace 	Co. 	(6th Cir. 	1974) 	497 F2d 	747 	[86 LRRM 2763]
enforcing, 	in part, 	(1973) 	203 NLRB 831 	[83 LRRM 1461]. 	Here
it 	is 	clear 	that 	the 	operation of 	the 	Forum, 	including the
discussion of 	negotiable 	items, 	did 	indeed undermine 	the
exclusive 	representative. 	Thus, 	we hold that 	the District 	also
violated section 3543.5(c).
Changes 	in 	Instructional 	Time
The 	District 	does 	not 	argue 	that 	the 	increases 	in 	teacher
work 	time 	resulting 	from 	its 	unilateral 	decision 	to 	increase
student 	instructional 	time 	are nonnegotiable. 	Instead, 	it
advances 	three 	main defenses 	to 	finding 	that 	unilateral 	action
unlawful: 	first, 	that there was a past practice of changes 	in
instructional 	time; 	second, 	that 	there were 	actually no changes
in 	teacher 	instructional 	time 	at 	the 	various 	schools 	as 	a
direct 	result of 	the change 	in the 	regulation; 	and third, 	that
the 	parties 	subsequently 	signed 	an agreement 	that 	settled 	the
question of 	instructional 	time.
Past 	Practice
It 	is 	settled 	law 	that 	if 	the District 	is 	simply proceeding
according to past practice, 	there 	is 	no unlawful 	unilateral
change. 	Pajaro Valley Unified School 	District 	(1978) 	PERB
Decision No. 	51. 	The 	record supports 	the 	District's 	argument
that 	every year 	there have been changes 	in 	instructional
schedules 	at 	certain 	individual 	schools 	that 	were 	instituted 	in
response 	to problems 	in bus 	scheduling 	or 	other 	scheduling
20

problems. 	Although principals had 	some 	flexibility 	in
developing 	individual 	school 	schedules, 	they were 	expected 	to
keep 	their 	schedules 	within 	the AR 	6310 	guidelines 	unless 	prior
approval 	to deviate 	therefrom was 	obtained. 	The 	District had
never 	previously 	unilaterally 	changed 	its 	District-wide 	policy
on 	student 	instructional 	time, 	affecting 	all 	the 	schools 	in 	the
District. 	Thus, 	the 	change 	in the policy establishing the
permissible 	range 	for 	all 	students' 	instructional 	time was 	not
in 	line 	with past 	practice 	in 	the 	District 	and 	its 	effects 	on
teacher 	instructional 	time were negotiable. 	Therefore, 	this
defense 	fails.
Changes 	in Teacher 	Instructional 	Time 	at 	Individual 	Schools
The 	factual 	questions 	surrounding 	the 	changes 	in 	teacher
instructional 	time 	at 	the 	individual 	schools 	are 	complex. 	The
ALJ 	found no 	changes 	in 	teacher 	instructional 	time 	at
Dickinson, 	Glider, 	Hayes, 	Sakamoto, 	or Santa Teresa. 	He also
found 	that 	the 	changes 	in 	teacher 	instructional 	time 	at
Anderson, 	Edenvale, 	Oakridge, 	Parkview and Taylor were
unrelated 	to 	the 	new AR. 	Since 	no 	exceptions 	were 	taken 	to
these 	findings, 	they are 	affirmed without discussion.
The 	ALJ 	found 	that 	some 	changes 	in 	teacher 	instructional
time 	at Baldwin, 	Christopher, 	San Anselmo and Samuel 	Stipe were
related 	to the 	change 	in AR 6310. 	He 	found 	that 	all 	changes 	at
Blossom Valley, 	Calero, 	Del Roble, 	Earl Frost and Miner were
related 	to 	the 	new AR. 	The 	District 	excepts 	to 	the 	findings
21

regarding Baldwin, 	Christopher, 	San Anselmo, 	Stipe, 	Del Roble
and Miner 	and 	each will 	be 	discussed below. 	As 	no 	exceptions
were 	taken to 	the ALJ's 	findings 	as 	to Blossom Valley, 	Calero
and Earl Frost 	schools, 	they are affirmed.
Baldwin 	School
At 	Baldwin, 	the 	teacher 	instructional 	time was 	increased
for 	grades 	1-3 	on both regular 	and minimum days. 	It 	was
increased 	for 	grades 	4-6 	on minimum 	days 	only. 	Principal
Burgei 	testified 	that he 	was 	aware 	of AR 6310 	and 	its 	revision
in 1981-82. 	He 	denied that 	the 	change 	in the 	teacher
instructional 	schedule 	was 	in any way 	a 	result 	of 	the 	new AR;
he 	said 	the 	decision was 	based 	on 	the bus 	schedule. 	Contrary
testimony was 	received 	from Ellen 	Jackson, 	a 	teacher 	and 	OGEA
member. 	Jackson 	said 	she 	and 	another 	OGEA member 	asked 	Burgei
about 	the 	change at 	the 	time. 	She 	testified that Burgei
indicated 	to her 	that 	the 	increase 	was 	due 	to both 	the 	new AR
minimums 	and bus 	schedule changes.
The 	ALJ 	concluded 	that 	the 	changes 	in 	teacher 	instructional
time 	in grades 	4-6 	at Baldwin were 	in response 	to 	the 	revised
AR, 	but 	that 	the 	changes 	in grades 	1-3 were not, 	since 	the
third 	grade 	minimum day 	already met 	the 	revised 	standards.
We 	agree 	with 	the 	District 	that 	it 	is 	illogical 	to view 	the
increase 	in 	the minimum day of 	grades 	4-6 	as 	a 	response 	to 	the
revised AR when, 	even after 	the 	five-minute 	increase, 	the
minimum day was 	still 	10 minutes below 	that 	required by 	the 	new
22

AR. 	Thus, 	we 	reverse 	the ALJ and 	find 	that 	none 	of 	the 	changes
in 	teacher 	instructional 	time 	at Baldwin were 	related 	to 	the
new 	change 	in 	student 	instructional 	time.
Christopher 	School
The 	change 	made 	at 	this 	school 	involved 	eliminating 	the
staggered 	schedule 	on 	the 	minimum day, 	and 	eliminating 	a
recess. 	Thus, 	while 	the 	student 	instructional 	time 	increased
on 	that 	day, 	the 	teacher 	instructional 	time 	actually
decreased. 	The 	school 	still 	remained 	under 	the 	specified
minimum 	for 	the day, 	but not 	for 	the week, 	and Principal
Alfred 	Villa 	requested 	and 	received 	a waiver 	of 	the 	daily
minimum 	in 	light 	of 	the 	weekly 	totals 	and 	the 	difficulty of
further 	rearranging bus 	schedules.
Villa's 	testimony about 	the 	changes 	is 	confusing 	and
contradictory, 	but he 	initially 	testified 	that 	the 	change 	in
instructional 	time 	for 	the 	intermediate 	grades 	was 	in response
to AR 6310, 	and 	that 	the 	change 	in the primary grades 	was 	to
conform 	to 	the 	change 	in 	intermediate 	grades 	so 	that 	the
students 	could be bused 	at 	the 	same 	time.
The 	District 	argues 	that 	all of 	the 	changes 	were 	in
response 	to changes 	in bus 	schedules. 	The ALJ 	found 	that 	the
changes 	in grades 	4-6 were 	in response 	to 	the 	new AR, 	but 	the
changes 	in grades 	1-3 were 	not. 	In 	so 	finding, 	the ALJ
apparently 	relies 	erroneously on 	some 	of 	Villa's 	testimony 	that
appears 	to 	refer 	to changes made 	in 1982-83 	over 	1981-82,
instead of 	1981-82 	over 	1980-81.
23

After 	review of 	the 	record, 	we 	find 	that all 	changes 	at
Christopher 	School 	were 	in response 	to 	the 	new AR, 	as 	the
principal 	so 	clearly 	testified. 	Although 	the 	increase 	in
student 	instructional 	time 	was 	accomplished 	in 	such 	a way 	that
the 	teacher 	instructional 	day decreased, 	the 	increase 	was 	still
an unlawful 	unilateral change. 	Gulf State Mfg. 	v. 	NLRB 	(5th
Cir. 	1978) 	579 F.2d 1298 	[97 LRRM 2547]; 	see also Palo Verde
Unified School 	District 	(1983) 	PERB Decision No. 	321. 	However,
no back pay 	is 	available 	to 	these 	teachers 	whose hours 	were
decreased.
San Anselmo 	School
At 	San Anselmo, 	all 	grades 	were 	divided 	into 	either 	team or
functional 	schedules. 	In team grades 	1 	and 	2, 	the minimum
schedule 	increased 	2077 minutes 	in 	1981-82. 	There was 	no
increase 	in the 	regular day 	schedule, 	so 	the 	weekly 	increase
was 	20 minutes. 	In 	team grade 	3, 	the 	regular day schedule
decreased 	25 	minutes, 	and 	the 	minimum day 	schedule 	decreased 	20
minutes. 	Therefore, 	the weekly decrease was 	120 minutes. 	In
team grade 	4, 	the minimum day schedule 	was 	decreased 	20 minutes.
Principal 	Marlene 	Smeed 	at 	San Anselmo 	School 	testified
that 	she 	was 	unaware 	of AR 6310 or 	of 	any change 	in 	that policy
in 1981-82. 	She 	said 	she 	attended a meeting 	in the 	spring of
1981 	where 	student 	instructional 	time 	was 	discussed. 	She
understood 	from 	that 	meeting 	that 	she 	would probably have 	to
7Joint 	Exhibit 	21 	reflects 	a change 	of 	25 minutes, 	but
the 	Charging 	Party's 	post-hearing brief 	acknowledges 	that 	20
minutes 	is 	the 	correct number, 	and that 	is 	the 	figure 	used by
the ALJ.
24

increase 	instructional 	time 	for grades 	1 	and 	2, 	since 	the
school 	was 	five 	minutes 	below 	the 	District-required 	minimum.
She 	met 	with her 	staff 	to discuss 	the 	problem and 	decided 	to
adopt 	a 	new 	schedule 	for 	these 	grades 	and 	to conform 	the 	rest
of 	the 	school 	schedule to 	the 	change. 	Principal 	Smeed,
however, 	left 	at 	the 	end of June 	1981 	and was 	unable 	to provide
much 	information about 	the 	1981-82 	schedule 	that 	was 	finally
adopted. 	The principal 	who 	took 	over 	in 	the 	fall 	of 	1981
testified 	that 	the 	new 	schedule had been 	adopted before 	she
came. 	She 	thought 	the new 	schedule 	was 	intended 	to bring 	the
functional 	and 	team 	strands 	into 	closer 	alliance.
The ALJ 	found 	that 	the 	change 	in 	team 	grades 	1-2 	were 	a
result of potential 	changes 	in AR 6310, 	and 	that 	the 	revisions
in team grades 	3-4 were 	to conform 	to 	those 	changes. 	He 	found
that 	none of 	the 	changes 	in the 	functional 	schedules 	were
related 	to AR 6310.
We 	find 	that 	the 	change 	in team grade 	3 	was 	related 	to 	the
loss 	of 	a 	teacher 	and 	that 	there 	was 	no 	evidence 	regarding 	the
changes 	in grades 	4-6. 	Thus, 	the Association has 	not 	carried
its burden of proof 	related to these changes. 	However, 	it 	is
clear 	the 	the principal 	instigated 	a 	20-minute 	increase 	in 	the
minimum day 	in grades 	1-2 	as 	a 	result 	of 	some 	District
directive, 	and we 	find this 	change 	to be 	related 	to the
provisions 	of 	the 	revised AR.
Stipe 	School
The 	evidence 	as 	to the 	changes 	in 	instructional 	time 	at
Stipe 	is 	ambiguous 	at best. 	Principal Marie 	Troiano 	testified
25

as 	to changes made between the 	1980-81 	and 	1981-82 	school
years, 	but her 	recollection conflicted 	with 	the 	information
contained 	in 	Joint 	Exhibit 	21 	and 	may have 	been 	affected by 	the
fact 	that 	she became 	principal 	only 	in 	the 	fall 	of 	1981.
Charging 	Party's 	post-hearing brief 	also 	indicated 	that 	Joint
Exhibit 	21 	understated 	the 	figures 	for 	the 	minimum day 	for
grade 	2 by 10 minutes and, 	thus, 	the 	figures 	for the 	increase
by the amount.8 u
We 	need 	not 	rely 	on 	the 	disputed 	figures 	for 	our 	finding,
however, 	as we 	find 	that 	there was 	insufficient 	evidence
presented 	to 	link 	any 	of 	the 	changes 	in 	teacher 	instructional
time 	to 	the 	revised AR.
Del 	Roble 	School
The 	regular 	day 	instructional 	minutes 	at 	Del 	Roble 	School
increased 	from 	250 	to 	275 	for 	grades 	1-3. 	The 	minimum day
increased 	from 250 	to 255 minutes. 	Thus, 	the total weekly
increase 	was 	105 minutes. 	In grades 4-6, 	the regular day
increased 	10 	minutes 	and 	the minimum day decreased 	10 minutes,
resulting 	in a 	total 	weekly 	increase 	of 	30 minutes. 	Charles
Cook, 	the principal 	at Del Roble, 	testified 	that 	there was 	an
increase 	in 	instructional 	time at 	Del 	Roble 	in 1981-82 	that
8 Joint Exhibit 	21 	was 	the parties' 	compilation of
schedule 	changes 	throughout 	the 	District. 	Although 	the parties
originally 	stipulated 	to 	its 	accuracy, 	it became 	apparent
during 	the hearing 	that 	not 	all 	the 	figures 	are 	valid 	and
occasionally 	corrected 	figures 	were 	agreed 	to.
26

totaled 	30 minutes 	for 	the 	week. 	Cook 	testified 	that 	when he
first 	came 	to Del 	Roble 	in 1979-80, 	he 	found that 	the 	school
had 	the 	least 	instructional 	minutes 	in 	the 	District 	and he 	was
determined 	to 	change 	that. 	He 	testified 	that he 	met 	with 	the
staff 	who opposed any changes 	in his 	first year, 	so none were
made 	for 	1980-81. 	However, 	in 1981-82 he 	increased the
minutes. 	He 	testified:
And 	I 	really didn't have 	any goal 	in mind
other 	than 	to 	just put 	us 	in keeping with
the 	majority of 	the 	other 	schools 	in the
District 	in terms of 	time.
Cook 	also 	testified 	that he 	knew of 	the 	change 	in AR 6310.
He 	stated 	that 	when the proposed AR was 	first 	discussed, 	he
felt 	in would ultimately be 	the 	District policy, 	but 	that 	it
wouldn't 	affect his 	school because 	the 	new 	schedule he wanted
to 	implement 	already conformed 	to 	its 	requirements. 	The
revised 	schedule 	contemplated by 	Cook 	in 	1980-81 	and
implemented 	in 	1981-82 	exceeded 	the maximums 	of 	the 	old
AR 6310, 	but 	was 	consistent with the 	revised AR. 	Cook
testified 	that 	although he 	did 	not 	specifically 	recall 	it, 	he
"must have" 	looked at both AR's when he 	set 	up his 	new 	schedule,•
Wanda McKoin, 	a 	teacher at Del Roble, 	testified that 	a
grievance 	had been 	filed based 	on 	the 	increase 	in 	instructional
time 	at 	Del Roble. 	She 	said 	that when 	she 	asked about 	the
increase, 	Cook 	said 	the 	District had 	instructed him 	to make
it. 	When 	she 	then 	said 	the 	increase 	was 	not permitted by 	the
current AR, 	he 	showed her 	the 	revised AR. 	Although 	Cook
27

testified 	that he 	would have 	made 	the 	changes 	even 	if 	the 	new
AR had 	not been 	issued, 	it 	is 	clear 	that he 	could 	not have 	done
so, 	since 	the 	increases 	would have 	violated 	the 	old AR. 	That
Cook 	made 	the 	changes 	relying 	on 	the 	fact 	that 	they were 	now
permitted by 	the 	new AR 	is 	supported by McKoin's 	testimony.
For 	these 	reasons, 	we 	find 	that 	the 	increases 	in teacher
instructional 	time 	at 	Del 	Roble 	were 	related 	to 	the 	new AR.
Miner 	School
Robert 	Keenan 	testified 	that 	the 	increase 	in 	the
instructional 	day 	for 	the 	primary grades 	in 	1981-82 	over
1980-81 	was 	due 	to 	the 	change 	in the 	District-wide 	minimums,
and 	that 	the 	change 	in grades 	4-6 was 	so 	that:
. 	. 	. 	all 	the grades would get out at the
same 	time, 	children would be 	able 	to go home
with 	their 	older 	brothers 	and 	sisters 	and
that 	sort 	of 	thing.
While 	not 	directly related, 	we 	view 	the 	changes 	in
instructional 	time 	for grades 4-6, 	like 	those 	in grades 	1-3, 	as
being 	attributable 	to 	the 	revised policy.
REMEDY
n
Pursuant 	to 	EERA 	section 	3541.5(c)9, 	PERB has 	broad
authority to 	shape 	remedies 	for unfair practices. 	As we have
9EERA 	section 3541.5(c):
(c) 	The board 	shall have 	the power 	to 	issue
a 	decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
28

found that the District violated EERA section 3543.5(a), 	(b),
(c) 	and 	(d) 	by its establishment of the Teachers Forum, 	it 	is
appropriate 	to order 	the 	District 	to 	cease 	dominating 	the
Teachers 	Forum, 	to 	cease 	interfering 	in OGEA's 	exercise 	of 	its
statutory 	right 	to 	represent 	certificated 	employees 	by allowing
discussion 	of 	subjects 	related 	to 	employer-employee 	relations
at 	the 	Teachers 	Forum, 	and 	to cease 	undermining 	and bypassing
the 	exclusive 	representative 	by 	its 	dealings 	with 	the 	Forum.
practice 	and 	to 	take 	such 	affirmative
action, 	including but 	not 	limited 	to the
reinstatement 	of 	employees 	with or 	without
back pay, 	as will 	effectuate 	the policies of
this 	chapter.
We have 	also 	found 	that 	the 	District's 	action 	in 	revising
its 	student 	instructional 	time 	policy without 	negotiating 	the
effects 	of 	that 	change on the 	teachers' 	workday violates
section 3543.5 	(c) 	and, 	concurrently, 	3543.5(a) 	and 	(b).
Therefore, 	it 	is 	appropriate 	to order 	the 	District 	to cease 	and
desist 	taking 	action 	affecting matters 	within 	the 	scope 	of
representation 	without 	first 	giving 	the 	exclusive
representative 	an opportunity 	to bargain over 	the 	effects 	of
such action. 	Further, 	we order 	the 	District to negotiate over
the 	impact 	of 	its 	decision 	to revise AR 6310.
Ordinarily, 	the 	remedy 	for an unlawful 	unilateral 	change 	is
designed 	to restore 	the 	status 	quo 	ante 	to 	the 	extent
possible. 	Santa 	Clara Unified School 	District 	(1979) 	PERB
29

Decision No. 	104. 	However, 	although the 	impact on the
teachers' 	workday was 	negotiable, 	the decision to change 	the
student 	instructional 	time 	policy was 	itself 	within 	the
District's 	managerial 	prerogative. 	Moreno Valley Unified
School District 	(1982) PERB Decision No. 	206, 	aff'd 	(1983) 	142
Cal.App.3d 	191. 	Thus, 	it would be 	inappropriate 	to order
rescission of 	the 	revised AR 6310. 	Moreover, 	to roll back
teacher 	schedules 	to 	those 	in effect 	during 	the 	1980-81 	school
year 	would disrupt 	the educational process. 	As 	the 	degree 	of
unlawful 	impact 	varied with 	school 	and grade, 	any attempt 	to do
so 	would 	necessarily be 	piecemeal 	and 	would 	not 	effectively
restore 	the 	situation 	to what 	would have 	existed had 	the
District 	not 	changed 	the 	student 	instructional 	time 	policy.
Solano 	County 	Community 	College 	District 	(1982) 	PERB 	Decision
No. 	219; 	Los Angeles 	Community College District 	(1982) 	PERB
Decision No. 	252. 	Thus, 	a literal 	return to the 	status quo
ante 	shall 	not be 	ordered.
However, 	it 	is appropriate 	to order 	the 	employees
compensated 	for 	any 	additional 	time 	worked 	as 	a 	result 	of 	the
District's unlawful 	action. 	When employees' 	worktime 	is
increased without 	a proportionate 	increase 	in pay, 	the
employees 	are 	being paid 	less 	per 	unit 	of 	time 	worked 	than
bargained for. 	See, 	for example, 	Delano Union Elementary
School 	(1982) 	PERB Decision No. 	213a; 	Corning Union High School
30

District 	(1984) 	PERB Decision No. 	399. 	Thus, 	this 	remedy 	is
not punitive, 	but compensatory.10	10
The 	District 	claims 	that because 	it had a duty 	to 	negotiate
only 	the 	impact 	of 	its 	decision 	to 	increase 	student
instructional 	time, 	a more 	limited back pay award 	is
appropriate; 	i.e., 	one 	that begins 	to accrue when our 	decision
issues 	instead 	of 	when the 	unfair 	conduct 	occurred. 	We
disagree. 	While 	such 	a 	limited 	remedy may be 	appropriate 	in
cases 	involving layoffs, 	it 	is not appropriate here. 	If a
layoff 	is proper, 	then the 	laid-off employee has 	no right 	to
continued pay after 	the date of 	layoff. 	Here, 	while 	the
District 	was 	entitled 	to make 	the 	decision 	to 	increase 	student
instructional 	time, 	the 	impact of 	that 	decision on teachers'
worktime 	began 	when 	the 	decision was 	implemented 	and
continued. 	Full back pay is, 	therefore, 	appropriate.
The 	District 	also 	claims 	that 	its 	liability 	for 	any back
pay ordered 	should 	end as 	of 	the 	effective 	date 	of 	the 	next
contract 	that 	addressed 	the 	issue 	of 	teacher 	worktime. 	It
states 	that 	the 	contract 	executed 	June 	1982, 	effective 	July 1,
1981, 	should cut off 	its 	liability 	in that way. 	In 	that
contract, 	Article XIV, 	"Hours of Employment," addresses at some
10	!Osuch	such 	back 	pay 	is 	awarded 	to 	individual 	teachers 	as
compensation 	for 	the 	extra 	time 	they worked because 	of 	the
unlawful 	conduct 	of 	the 	District. 	Whether 	or 	not 	the 	total
worktime 	for 	the 	entire 	faculty 	in 	the 	District has 	been
increased 	is 	irrelevant. 	It would be manifestly unfair, 	and
unprecedented, 	to deny 	full 	compensation to those 	teachers
whose 	hours 	were 	unlawfully 	increased 	simply because 	the 	hours
of 	other 	teachers 	were, 	equally unlawfully, 	decreased.
31

length 	the hours 	of 	employment, 	including maximum 	instruction
time 	for 	classroom teachers. 	It provides 	that 	school 	schedules
which 	exceed 	those 	maximums 	in 	1981-82 	may be 	continued 	under
certain circumstances, 	but 	that 	adjustments 	in the
instructional 	day beyond 	those 	noted must 	have 	the 	consent 	of
the Association. 	Adjustments 	of 	the maximums were 	limited 	to
10 minutes per year, 	and the base year was 	to be 	1981-82.
The 	Board 	has 	consistently held 	that 	merely 	signing 	a
contract 	after hearing 	is 	insufficient 	to waive 	the 	right 	to
negotiate 	over 	the 	subject 	of 	an unlawful 	unilateral 	change 	or
to 	establish 	that 	the 	case 	is moot. 	Oakland Unified 	School
District 	(1980) 	PERB Decision No. 	126. 	On the contrary, 	a
clear 	unmistakable 	waiver 	on 	the 	part 	of 	charging party 	is
necessary 	to establish 	that 	the 	case 	is 	settled 	or 	moot.
Oakland, 	supra. 	However, 	the Board has 	refused to 	restore
status 	quo 	and has 	limited 	the 	liability 	for back 	pay once 	a
District 	has 	fulfilled 	its 	obligation 	to 	negotiate 	and 	the
parties 	have 	reached 	agreement. 	San Mateo City School 	District
(1984) 	PERB Decision No. 	375a. 	This has generally been
considered 	to be 	a question 	for 	compliance, 	since 	it usually
concerns a post-hearing agreement. 	Here, 	however, 	the parties'
contract had been 	signed by 	the 	time 	the hearing was held 	in
October 	1982 	and 	testimony 	about 	the 	meaning 	and 	effect 	of 	that
agreement was 	received at 	that hearing. 	Therefore, 	we will
address 	the 	effect 	of 	that 	agreement.
32

Originally 	Article 	XIV of 	that 	contract 	contained 	a
sentence: 	"The base year 	for purposes of 	this 	adjustment 	is 	the
minutes 	actually 	taught 	during 	1981-82." 	OGEA negotiators
Cynthia 	Joehnck 	and 	Claudelle 	Bonaccinie 	testified 	consistently
that 	they had 	demanded and 	obtained 	the 	deletion of 	the 	word
"actually" 	from 	that 	statement 	so 	that 	there would be 	nothing
in 	the 	contract 	that 	would 	affect 	the pending unfair practice
and 	nothing 	to prevent 	the 	base 	year 	from being 	rolled back.
They 	understood 	that 	the 	language 	they 	finally agreed 	to 	would
allow 	the base 	year 	of 	the 	schools 	affected 	to be 	adjusted
depending on the 	outcome of 	the unfair. 	The meaning of 	the
revised 	language, 	as 	they understood 	it, 	would 	"not be minutes
actually 	taught, 	it 	would be minutes 	that 	the District had a
right 	to assign 	to the 	teachers."
The 	testimony 	from Gary 	Clarke, 	Program Director 	for 	Public
Relations, 	who was present when the 	language was 	negotiated,
was 	not 	inconsistent 	with 	that position. 	He 	stated 	that 	the
original 	language 	reflected 	a District proposal 	and, 	when he
had 	inquired 	whether 	the Association would 	drop 	the 	unfair,
they 	refused. 	He 	testified 	that he met 	with Joehnck 	and
Bonaccinie 	and 	they had 	asked 	to have 	the 	word 	"actually"
removed because 	they were 	concerned 	about 	the 	unfair. 	He
continued:
I responded that PERB, 	the unfair, 	if the
Association 	should 	prevail 	the 	PERB 	could 	do
whatever 	it wanted 	to do. 	They have 	the
authority to make 	decisions 	and 	if 	they
33

thought 	they 	could 	roll 	back 	the 	base 	year
that 	would be 	a 	decision 	for 	them to make.
Although 	the 	language here, 	by removing 	the
word 	["actually"] 	from 	that 	language, 	from
the 	District's point of 	view, 	did not 	alter
the base year, 	did not alter 	the 	fact 	that
it 	should be 	established 	for 	81-82 	as 	the
base year. 	And we have 	no control 	over what
PERB 	would 	decide.
We 	find 	that 	the 	District has 	not 	met 	its 	duty 	to negotiate
on 	instructional 	time 	so 	that 	its back-pay 	liability 	is 	cut 	off
by the July 1, 	1981 	contract. 	At 	the 	time 	of 	the 	negotiation
of 	that 	contract, 	the Association was 	presented with a 	status
quo 	that had been unlawfully altered by 	the 	District. 	The base
year was 	to be 	1981-82, 	a year 	in which the 	instructional
minutes 	had 	already 	been 	unlawfully 	increased by 	the 	District.
The 	parties 	were 	both 	clearly aware 	of 	the pending unfair 	and
both 	felt 	that 	the 	outcome 	of 	that 	unfair 	could 	alter 	their
agreement.
Since 	the 	Board 	generally declines 	to 	restore 	the 	status
quo where 	the 	decision 	is 	within 	the 	prerogative 	of 	management
and 	it 	is 	only 	the 	effects 	which must be 	negotiated 	(Moreno
Valley Unified School District, 	supra), 	the status quo remedy
expected by 	the Association at 	the 	time 	of 	negotiations 	will
not be 	forthcoming. 	If back pay 	is 	cut 	off at 	the 	time 	the
contract 	is signed, 	however, 	the 	teachers have no real 	remedy
for 	the 	fact 	that 	their 	workday was 	unilaterally 	increased 	and
the 	effect 	of 	that 	increase has 	been ongoing. 	As 	argued by 	the
34

Association, 	to decide 	otherwise 	would put 	charging parties 	in
the 	position of 	refusing 	to 	sign 	contracts 	indefinitely while
awaiting 	PERB 	action, 	or 	waiving 	their 	right 	to 	full back pay.
For 	that 	reason, 	we 	do not 	order 	the 	restoration of 	the 	status
quo but, 	instead, 	order 	the parties 	to negotiate upon request
and 	award 	back 	pay 	for 	increased 	worktime 	from 	the 	time 	of 	the
change 	until 	agreement or 	impasse 	is 	reached. 	As 	no exception
was 	taken 	to the 	ALJ's 	calculation of 	back pay on a weekly
basis, 	that 	shall be 	the 	appropriate basis.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in the 	case, 	and pursuant 	to 	section
3541.5(c), 	it 	is hereby ORDERED that 	the Oak Grove 	School
District 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
(1) 	Dominating 	or 	interfering with 	the 	formation or
administration of 	the 	Teachers 	Forum or 	any 	successor 	thereto
and 	from 	contributing 	financial 	aid 	or 	any other 	support 	to 	it;
(2) 	Undermining the 	status 	of 	the 	exclusive
representative 	or 	interfering 	with 	its 	exercise 	of 	statutory
rights by permitting 	the 	Teachers 	Forum 	or 	any 	successor
thereto 	to 	function 	as 	an employee 	organization having 	as 	a
primary purpose 	the 	representation of 	the 	employees 	in 	their
relations 	with 	the 	Oak Grove 	School 	District;
35

(3) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith with 	the 	Oak 	Grove 	Educators Association, 	CTA/NEA;
(4) 	Denying 	the 	Oak 	Grove 	Educators Association,
CTA/NEA 	its 	right 	to 	represent 	teachers 	by 	failing 	and 	refusing
to meet 	and 	negotiate 	about 	matters 	within 	the 	scope 	of
representation;
(5) 	In 	any manner 	interfering 	with 	the 	rights 	of
employees 	by 	unilaterally 	initiating 	changes 	without 	meeting
and 	negotiating with 	the 	Oak Grove 	Educators Association,
CTA/NEA over 	the 	impact 	of 	such 	changes 	on matters 	within 	the
scope 	of 	representation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES OF THE ACT:
(1) 	Bargain 	upon 	request 	with 	the 	Oak 	Grove 	Educators
Association, 	CTA/NEA over 	the 	effects 	of 	the 	revision 	to
Administrative 	Regulation 	6310;
(2) 	Pay 	the 	affected 	employees 	at 	their 	normal 	rate
of 	pay with 	interest 	of 	ten 	(10) 	percent per annum 	for 	the
increased 	teacher worktime, 	calculated on a weekly basis, 	from
September 	1981 	until 	the 	occurrence 	of 	the 	earliest of 	one 	of
the 	following 	conditions:
(a) 	The date 	the parties 	reach agreement 	over
the 	effects of 	revisions 	to Administrative 	Regulation 6310;
(b) 	The date 	the 	statutory 	impasse procedure 	is
exhausted;
36

(c) 	The 	failure 	of 	the 	Oak 	Grove 	Educators
Association, 	CTA/NEA 	to 	request bargaining within 	thirty 	(30)
days 	of 	the 	date 	this 	Decision 	is 	no 	longer 	subject 	to
reconsideration or within 	seven 	(7) 	days 	of 	the 	District's
notice 	of 	its 	desire 	to 	negotiate 	within 	the 	Oak 	Grove
Educators Association, 	CTA/NEA; 	or
(d) 	The 	subsequent 	failure 	of 	the 	Oak 	Grove
Educators Association, 	CTA/NEA to negotiate 	in good 	faith.
(3) 	Mail 	copies 	of 	the 	attached Notice 	to the
employees 	affected 	by 	the 	District's 	conduct 	within 	ten 	(10)
calendar 	days 	after 	this 	Decision 	is 	no 	longer 	subject 	to
reconsideration.
(4) 	Within 	thirty-five 	(35) 	days 	following 	the 	date
this 	Decision 	is 	no longer 	subject 	to reconsideration, 	prepare
and 	post 	at 	all 	work 	locations 	where 	notices 	to employees
customarily are placed, 	copies 	of 	the 	Notice 	attached as 	an
Appendix 	hereto, 	signed by an authorized 	agent 	of 	the
employer. 	Such posting 	shall be maintained 	for 	a period of
thirty 	(30) 	consecutive workdays. 	Reasonable 	steps 	shall be
taken 	to 	insure 	that 	this 	Notice 	is 	not 	reduced 	in 	size,
defaced, 	altered 	or 	covered by any material.
(5) 	Written notification of 	the 	actions 	taken to
comply with 	this 	Order 	shall 	be made 	to 	the 	San Francisco
Regional 	Director of 	the 	Public 	Employment 	Relations 	Board 	in
accordance 	with her 	instructions.
37

At 	the 	compliance 	proceeding, 	the 	compliance 	officer 	shall
attempt 	to 	accommodate 	any reasonable proposal 	regarding 	the
method 	of 	payment 	of 	the 	monetary 	award 	ordered by 	the 	Board.
Member Morgenstern 	joined 	in 	this 	Decision.
Chairperson Hesse's 	Dissent begins 	on page 	39.
38

Hesse, 	Chairperson, 	dissenting: 	I cannot concur with my
colleagues 	in 	their 	conclusion 	that 	the 	Superintendent's 	Forum
constituted 	an employee 	organization under 	the 	EERA, 	nor 	that
the 	District 	in 	any way 	sought 	to bypass 	the 	exclusive
representative.
As 	I 	read 	the 	statutory 	requirements,l the 	Forum would
constitute 	an 	employee 	organization 	if 	the 	following 	elements
were present: 	(1) 	it was an organization, 	(2) having as a
primary purpose 	(3) 	the 	representation of 	employees 	(4) 	in
their 	relations 	with 	the 	employer 	on matters 	within 	the 	scope
of 	representation. 	All of these elements must be 	shown, 	not
merely some 	of 	them. 	In 	this 	case, 	the proof 	falls 	far 	short
of 	showing 	that 	these 	elements 	were present.
As 	noted by the 	majority, 	the 	easiest 	element 	to prove 	is
the 	existence 	of 	"an organization." 	Long-settled case 	law
points 	to as 	few as 	two employees 	constituting an organization,
even 	if 	the 	employees 	themselves were 	unaware of 	their
collective 	status 	and 	did 	not 	intend 	to act 	as 	an
organization. 	Here, 	there was a group of 	a continuing nature,
made 	up of employees. 	Thus, 	I can agree 	that the 	Forum was 	"an
organization."
Further, 	given 	that 	the purpose 	of 	the 	Forum was 	to
disseminate 	and 	receive 	information 	from 	representatives 	of
rank 	and 	file 	teachers, 	I can also concur 	that 	the panel
members 	were 	to 	represent 	the 	employees 	at 	their 	various
1Government 	Code 	section 	3540.l(d)
39

schools. 	Although 	the meetings were 	in 	theory open to anyone,
and 	the 	panel 	members 	themselves 	were 	given 	their 	jobs 	by a
number of different methods 	(election, 	appointment,
volunteering), 	the purpose behind the 	structure 	reasonably 	is
seen 	to be 	to have 	the members 	of 	the 	Forum 	report back 	to
their 	own 	schools 	with 	information, 	and 	to bring discussion
items 	from their 	faculties 	to 	the Forum. 	Thus, 	two of 	the 	four
elements 	of 	the 	statutory 	requirements 	were met 	in this 	case.
In truth, 	the 	same 	two elements 	are met every time a school
holds 	a 	faculty or department head meeting, 	or 	a district
sponsors 	a 	district-wide 	staff meeting. 	But 	the 	two 	remaining
elements 	were 	not 	proven on 	this 	record.
The 	EERA requires 	that 	the 	employee 	organization must have
as 	a 	"primary purpose" 	the 	representation of employees 	on
matters 	within 	scope. 	Certainly 	it 	can have other purposes:
providing professional 	group 	support, 	making 	available 	low cost
supplemental 	insurance plans, 	giving opportunities 	for 	training
and professional 	growth, 	etc. 	But 	in order 	to 	fit 	the
definition of section 3540.l(d), 	the purpose of representation
on matters 	within 	scope must be 	the primary goal. 	Here, 	the
purpose of 	the 	Forum 	is 	less 	than that. 	Rather, 	its primary
purpose 	was 	to give 	the 	rank 	and 	file 	employees 	access 	to 	the
new superintendent, 	as a morale booster,. 	The 	instigation for
the 	Forum came 	from the 	teachers, 	not vice 	versa. 	The
teachers' 	feeling, 	evidently 	shared by the board of education,
was 	that 	the 	lines 	of 	communication between 	the 	staff 	and 	the
40

superintendent were 	in need of 	repair. 	To that 	end, 	the
teachers 	suggested 	reinstituting 	the 	Forum. 	The 	District
agreed, 	noting 	that morale was 	low due 	to 	the perception 	that
the 	teachers had no voice 	that was 	listened 	to. 	Formation of
the 	Forum 	served 	a 	twofold purpose: 	it 	provided 	a 	vehicle 	for
the 	superintendent 	and 	the 	teachers 	to 	exchange 	information,
and by doing 	so 	it 	raised employees' morale.
There 	is 	no 	indication 	that 	the primary purpose 	of 	the
Forum was 	to 	represent 	employees 	on matters 	within 	scope.
Entwined 	with 	the 	question 	of 	the 	group's 	primary purpose
is 	the 	question of 	whether matters 	within 	scope 	were 	discussed,
and 	whether 	those 	discussions 	led 	to 	impermissible 	action by
the 	District. 	The 	record 	is 	devoid of 	any 	instance when
subjects 	within 	scope were discussed. 	Indeed, 	the 	record 	is
replete 	with 	examples 	of 	subjects 	that 	teachers 	wanted 	to
discuss, 	but 	where 	the 	District 	instead 	referred 	the 	Forum
representatives 	to 	the Association as 	the 	appropriate place 	to
raise 	those 	issues. 	In another 	instance, 	the teachers were
curious 	as 	to 	the 	District's plan 	for Martin Luther 	King 	Day.
The 	District 	did not bargain over 	the holiday. 	Instead, 	it
gave 	the 	teachers 	an 	update 	on 	the 	legislation 	authorizing 	the
holiday, 	and 	noted how various 	districts 	were 	implementing 	the
holiday. 	I 	find 	it 	difficult to believe 	that EERA was 	intended
to preclude 	an employer 	from 	informing 	the 	employees 	on 	the
status 	of 	a 	legal 	holiday. 	There may have been other 	instances
when 	items 	discussed 	encroached 	on a 	subject 	within 	scope. 	But
41

that 	is 	inevitable 	and, 	as 	long as no negotiations 	occurred,
then 	I 	cannot 	find 	an exchange 	of 	information between 	employer
and 	employee harmful. 	To so 	limit 	exchanges 	is 	not 	the purpose
of 	the Act, 	and 	is based on a naive 	understanding of
employer/employee 	communication.
Furthermore, 	not 	only 	is 	there 	no evidence of either
negotiation or 	of 	a 	unilateral 	change 	made 	in 	response 	to any
of 	the discussions, 	there 	is no evidence 	that 	the
superintendent 	made 	any changes 	as 	a 	result 	of 	the 	Forum
discussions. 	Thus, 	I 	find 	it 	impossible 	to believe 	that 	the
Association was 	bypassed 	in any way, 	or 	that 	its 	authority as
the 	exclusive 	representative 	was 	undermined 	in 	the 	least.
As 	to 	the 	alleged 	unilateral 	changes 	in 	instructional 	time
pursuant 	to AR 6310, 	here 	too 	I 	find 	the 	record 	less 	than 	clear.
To be 	proven to be 	a 	unilateral 	change 	in response 	to 	the
new AR, 	the 	school 	schedule would need 	to reflect 	(1) 	that 	the
school's 	schedule 	complied with the new AR; 	(2) 	that 	it had
changed 	the 	instructional 	minutes 	from 	1980-81 	to 	1981-82; 	and
(3) 	that 	the change 	in the 	instructional 	day resulted 	in a
change 	in the 	teacher's 	overall 	workday.
Examining 	Joint 	Exhibit 	1, 	I 	note 	very 	few 	situations where
the 	above 	conditions 	are met. 	The vast majority of 	the 	schools
in 1981-82 did not 	comply with the 	new AR 6310, 	or, 	if 	they
were 	in compliance 	with 	the 	new AR 6310, 	the 	schools had 	no
change 	from the previous year. 	I 	find 	the 	only situations
where 	an 	increase 	occurred, 	and 	the 	schedule 	conformed 	to 	the
42

new AR, 	to be:
Blossom 	Valley 	School
grades 	4-6 	only 	(+15 	min/week)
Del 	Roble 	School
grades 	1-3 	only 	(+105 	min/week)
Edenvale 	School
grades 	4-6 	only 	(+125 	min/week)
Frost 	School
grades 	1-3 	(+150 	min/week)
grades 	4-6 	(+10 min/week)
Given 	the 	large 	number 	of 	schools 	in the 	District, 	this
hardly 	reflects 	a 	district-wide 	pattern 	and practice.
Furthermore, 	even 	if 	the 	schools where 	the 	change due 	to AR
6310 	resulted 	in a 	decrease 	in 	instructional 	time 	are 	included,
only 	two more 	schools 	are 	added:
Parkview 	School
grades 	4-6 	only 	[20] 	minute 	decrease/week
San Anselmo 	School
grade 	4 only 	[15] 	minute 	decrease/week
Furthermore, 	whether 	the 	total 	work 	time 	for 	the 	faculty
was 	increased 	is not 	clear 	from the 	record. 	I 	thus 	feel 	it
inappropriate 	to 	award 	damages 	to 	those 	teachers 	affected by
the AR changes. 	Even 	if damages were 	appropriate, 	any order
must, 	of 	necessity, 	examine 	the 	economic 	gain experienced by
those 	teachers 	whose 	work 	decreased 	in 	response 	to 	the AR.
I 	particularly 	take 	issue 	with 	the 	majority's 	failure 	to
limit back 	pay 	liability up 	to 	the 	time 	the parties 	negotiated
teacher work 	time. 	Whether 	the parties 	"intended" 	the
negotiations 	to cut-off 	liability 	is 	not 	as 	important 	as 	the
43

fact 	that 	they did negotiate 	teacher 	work 	time. 	To 	continue
back pay 	liability past 	the 	1981-82 	school 	year 	would 	act 	as 	a
warning 	to all parties 	"Caution: 	negotiate 	at your 	own risk."
PERB 	should 	craft 	remedies 	that 	encourage 	and 	reward parties
who negotiate over 	subjects 	in scope, 	not punish parties 	who
see 	their duty, 	even belatedly, 	and 	fulfill 	it.
Therefore, 	I believe 	the only appropriate 	remedy is 	an
order 	to bargain 	the 	impact 	of 	the 	new AR on those 	schools
listed above, 	provided that 	it 	is 	shown that 	the 	teachers'
workday was 	affected.
44

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair Practice Case No. 	SF-CE-622, 	Oak
Grove 	Educators Association, 	CTA/NEA v. 	Oak 	Grove 	School
District, 	in which all parties had the 	right to participate, 	it
is 	found 	that 	the 	Oak 	Grove 	School 	District 	violated 	the
Educational 	Employment Relations Act, 	Government Code 	section
3543.5(a), 	(b), 	(c) and 	(d).
As 	a 	result 	of 	this 	conduct 	we have 	been ordered 	to post
this 	Notice 	and we 	will:
A. 	CEASE AND 	DESIST 	FROM:
(1) 	Dominating 	or 	interfering 	with 	the 	formation or
administration of 	the 	Teachers 	Forum or 	any 	successor 	thereto
and 	from 	contributing 	financial 	aid 	or 	any 	other 	support 	to 	it;
(2) 	Undermining 	the 	status 	of 	the 	exclusive
representative 	or 	interfering 	with 	its 	exercise 	of 	statutory
rights by permitting 	the 	Teachers 	Forum or 	any 	successor
thereto 	to 	function 	as 	an employee 	organization having 	as 	a
primary purpose 	the 	representation of 	the 	employees 	in 	their
relations 	with 	the 	Oak Grove 	School 	District;
(3) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith with 	the 	Oak 	Grove 	Educators 	Association, 	CTA/NEA;
(4) 	Denying 	the 	Oak 	Grove 	Educators Association,
CTA/NEA, 	its 	right 	to 	represent 	teachers 	by 	failing 	and
refusing 	to meet 	and 	negotiate 	about 	matters 	within 	the 	scope
of 	representation;
(5) 	In 	any manner 	interfering with 	the 	rights 	of
employees 	by 	unilaterally 	initiating 	changes 	without 	meeting
and 	negotiating 	with 	the 	Oak 	Grove 	Educators 	Association,
CTA/NEA, 	over 	the 	impact of 	such changes 	on matters 	within the
scope 	of 	representation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES OF THE ACT:
(1) 	Bargain 	upon 	request 	with 	the 	Oak 	Grove 	Educators
Association, 	CTA/NEA, 	over 	the effects 	of 	the 	revision to
Administrative 	Regulation 	6310;
11

(2) 	Pay the 	affected employees 	at 	their normal 	rate
of pay with 	interest 	of 	ten 	(10) 	percent per 	annum 	for 	the
increased 	teacher 	worktime, 	calculated on a weekly basis, 	from
September 	1981 	until 	the 	occurrence 	of 	the 	earliest 	of 	one 	of
the 	following conditions:
(a) 	The date 	the parties 	reach agreement 	over
the 	effects 	of 	revisions 	to Administrative 	Regulation 6310;
(b) 	The date 	the 	statutory 	impasse procedure 	is
exhausted;
(c) 	The 	failure 	of 	the 	Oak 	Grove 	Educators
Association, 	CTA/NEA, 	to 	request bargaining within thirty 	(30)
days 	of 	the 	date 	this 	Decision 	is 	no longer 	subject 	to
reconsideration or 	within 	seven 	(7) 	days 	of 	the 	District's
notice 	of 	its 	desire 	to negotiate 	with 	the 	Oak 	Grove 	Educators
Association, CTA/NEA; or
(d) 	The subsequent 	failure 	of 	the Oak Grove
Educators Association, 	CTA/NEA, 	to negotiate 	in good 	faith.
Dated: 	OAK 	GROVE 	SCHOOL 	DISTRICT
By Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND MUST NOT
BE DEFACED, 	ALTERED, 	REDUCED 	IN SIZE OR COVERED BY ANY OTHER
MATERIAL.
22