Lake Elsinore School District (PERB 0715E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELSINORE 	VALLEY 	EDUCATION
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
LAKE 	ELSINORE 	SCHOOL DISTRICT,
Respondent.
)
)
)
) 	Case 	No. 	LA-CE-2349
PERB 	Decision No. 	715
December 	29 	1988
)
)
)
)
)
)
Appearances: 	A. 	Eugene Huguenin, 	Jr., Attorney, 	for Elsinore
Valley Education Association, 	CTA/NEA; 	Parham & Associates, 	Inc.
by James 	C. 	Whitlock for Lake 	Elsinore 	School 	District.
Before Porter, 	Craib and Shank, 	Members.
DECISION
PORTER, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed by the 	Lake
Elsinore 	School 	District 	(District) 	to the proposed decision,
attached hereto, 	of a PERB administrative law judge 	(ALJ). 	The
ALJ 	found that 	the 	District violated 	section 	3543.5, 	subdivision
(c) 	and, 	derivatively, 	subdivisions 	(a) 	and (b) 	of the
Educational 	Employment 	Relations 	Act 	(EERA).1
1EERA is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code.
Section 3543.5 provides, 	in pertinent part, 	as follows:
It 	shall 	be unlawful 	for a public 	school
employer to:
(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
__ )

FACTUAL 	SUMMARY
The 	charge 	in the 	instant 	case was 	filed by the 	Elsinore
Valley 	Education Association 	(EVEA 	or 	Charging 	Party)
on March 	3, 	1986. 	It alleged that the District violated
subdivision 	(c) 	of 	EERA section 	3543.5 	by failing to give 	EVEA
notice 	and 	the 	opportunity 	to 	bargain 	the 	negotiable 	effects 	of
the 	District's 	nonnegotiable 	decision to reduce 	the 	hours 	of
instructional 	aides.
The background of this 	case 	is 	as 	follows. 	The District 	is
comprised of five elementary 	(K-6) 	schools: 	Wildomar, 	Hayman,
Machado, 	Elsinore and Butterfield. 	Wildomar and Hayman 	schools
are 	located at the 	same 	site.
The School 	Improvement Project 	(SIP), 	a program in existence
at all 	five 	schools within the District, 	is a 	state
categorically-funded 	program 	designed 	to 	provide 	educational
assistance 	to 	students 	in the 	subject areas 	of reading,
mathematics and language arts. 	(Ed. 	Code, 	sec. 	52000.) 	The
Education Code mandates 	the 	establishment 	of 	school 	site 	councils
which are responsible 	for developing plans 	for 	the 	use 	of 	SIP
funds. 	It is 	composed of each 	school 	site's principal,
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.
N	2

certificated and 	classified representatives, 	as well 	as 	students
and parents. 	(Ed. 	Code, 	sec. 	52012 et seq.) 	The school
improvement plans 	for 	each 	school 	site 	are developed by the 	site
councils 	consistent with the 	District's 	general 	guidelines 	for
adoption by 	the 	District's 	board 	of 	trustees 	upon 	the
recommendations of the site councils. 	(Ed. 	Code, 	sec. 	52034.)
The 	record 	showed 	that 	SIP 	aides 	performed 	a 	variety 	of
tasks. 	In addition to monitoring 	students 	after a 	teacher-
directed 	lesson, 	they provided 	students 	with 	one-on-one 	help
with assignments. 	On 	some occasions, 	while a 	teacher worked with
one 	reading group, 	the 	aide would work with others 	to reinforce
a 	lesson.
The 	SIP 	instructional 	aides 	also performed 	a 	large 	number 	of
tasks 	which were 	not directly related 	to 	instructing 	students.
For 	example, 	the 	aides 	assembled make-up work 	for absent
students, 	corrected papers and recorded grades, 	supervised
children 	during 	the 	physical 	education 	period 	and 	performed
preschool 	yard duty, 	and administered minor 	first 	aid to
students. 	They also 	telephoned parents 	and 	scheduled
conferences, 	maintained classroom bulletin boards, 	prepared
art projects 	and 	cleaned up after 	same, 	procured educational
supplies, 	and xeroxed materials.
E. . . . .. .. .
The 	SIP 	operates 	on 	a 	three-year 	cycle which 	commenced 	in
the 	1982-83 	school year. 	During the 	summer of 	1985, 	there was
a 	surge 	of 	growth 	in the 	District's 	student population.
Specifically, 	between the 	1984-85 	and 	1985-86 	school 	years,
3
3

enrollment in the District increased by 	13 percent, 	with 	65
percent of 	that 	increase 	occurring at the 	K-3 	grade 	levels. 	The
number 	of 	certificated 	staff 	was 	accordingly 	enlarged 	in 	order 	to
accommodate 	the new 	students.
During the 	spring of 	1985, 	the 	school 	site 	councils
requested the 	following 	increases 	in 	the 	number 	of 	instructional
aides 	for 	school 	year 	1985-86:
Site Council SIP Aides
1984-85 SIP Aides 	Requested
1985-86
Elsinore
Machado
Butterfield
Wildomar/Hayman -
8
10
14
14
9
14
16
15
Total 	46 	54
The District's 	coordinator of projects, 	LaVerne Carlson,
working under 	the 	supervision 	of 	Director 	of 	Personnel 	Keith
McCarthy, 	reviewed the 	site 	councils' 	requests 	for additional
aides. 	Carlson projected 	the 	estimated 	cost 	of 	the 	1985-86 	site
plans 	and 	concluded 	that 	the 	projected 	funds 	from 	the 	state 	for
the 	SIP would be 	insufficient. 	For purposes 	of 	computing 	the
level 	of 	SIP 	funding for each district, 	the 	state uses 	the
previous year's 	student count. 	The state, 	therefore, 	distributed
to 	the 	District 	SIP monies 	for 	school 	year 	1985-86 	based upon the
student population count of 	1984-85. 	The 	state 	SIP 	funds 	for
school 	year 	1985-86 were 	sufficient to 	fund the 	increase 	in 	the
number of SIP instructional 	aides 	from 46 to 	50. 	However, 	due 	to
the 	substantial 	growth 	in 	student 	population between 	school 	years
1984-85and 	1985-86, 	the 	state 	funding was 	insufficient 	to 	hire
4

enough 	SIP 	aides 	in 	1985-86 	so 	that 	all 	teachers 	could receive
the 	same 	level 	of 	aide 	time 	they received the previous 	year.
Further, 	despite the shortfall 	in the 	state SIP funds, 	the
District adhered to 	its 	practice 	of 	not using 	its 	general 	funds
to 	supplement the 	state 	SIP 	funds.
On August 	2, 	1985, 	Carlson 	submitted a report to McCarthy
containing her recommendations 	for the 	number of 	SIP 	aides 	to be
utilized for 	school 	year 	1985-86. 	She 	recommended 	for 	Elsinore
to have 	seven three-hour 	instructional 	aides, 	and 	for Machado to
have twelve. 	For 	Butterfield and Wildomar/Hayman 	schools, 	it was
recommended 	for 	the number of 	SIP 	aides 	to be 	increased 	to 	the
level requested by the 	site 	councils 	(16 	and 	15 	aides
respectively). 	Thus, 	there was a net increase of 	four SIP aides
in the 	District 	for 	school 	year 	1985-86.
While 	some 	of 	the 	teachers 	benefited 	from the
implementation2 of Carlson's recommendations, 	most teachers
experienced no reduction 	in aide 	time 	in 	1985-86. 	A 	few teachers
at each 	school, 	however, 	had their SIP aide time reduced, 	which
led 	to 	the 	filing of 	the 	instant unfair. 	The 	record 	can be
summarized as 	follows: 	For Elsinore, 	out of a total 	of 	fifteen
teachers, 	two had increased aide time; 	ten teachers 	experienced
2The 	site plans 	for 	school 	year 	1985-86 were 	accepted by the
board in June 	1985. 	Once 	accepted, 	the 	board 	still 	retained the
latitude 	to modify them up until 	November 	1985, 	based upon 	the
SIP 	funding available 	from the 	state. 	The 	record 	showed that the
board delegated 	its 	authority 	to modify 	the 	plans 	to 	Director 	of
Personnel Keith McCarthy, 	who, 	in turn, 	accepted the
recommendation. .. s 	of his 	subordinate 	LaVerne Carlson.
55

no 	change 	in aide time compared to 	1984-8 5; 	and three teachers,
Judith Avallone, 	Jalyne 	Leonhart and Tracy Scarborough, 	had their
aide 	time 	eliminated 	from 	the 	previous 	year's 	level 	of three
hours.
At Machado School, 	out of a total of 21 	teachers, 	5 teachers
filled new positions for 	school year 	1985-86, 	and, 	thus, 	no
comparative 	data 	regarding the 	previous 	year's 	aide 	time 	could
be 	obtained. 	Of 	the teachers 	returning, 	two had their 	aide 	time
increased; 	ten teachers 	experienced no 	change 	in the number 	of
aide hours 	as between 	1984-85 	and 	1985-86; 	and four teachers,
Frances Easter, 	Shirley Hunt, 	Suzanne Moore and Lynn Stuck, 	had
their 	aide 	time 	reduced 	from three 	hours 	in 	1984-85 	to 	one 	hour
thirty minutes 	in 	1985-86.
At Butterfield, 	12 	teachers 	filled new positions 	in the
District in the 	1985-86 	school 	year. 	Of 	the 	returning teachers,
six had their 	aide 	time 	increased, 	and two teachers 	experienced
no 	change 	in aide 	time. 	Two teachers 	experienced a decrease 	in
aide 	time; 	Beverly Daniel 	had her 	aide 	time reduced 	from three
hours 	in 	1984-85 	to one hour 	in 	1985-86, 	while Nancy Spohn had
her 	aide 	time 	eliminated 	after having received 	three 	hours 	of
aide 	time 	the previous 	year.
With respect to Wildomar, 	six 	teachers had their 	aide 	time
increased; 	two 	teachers 	did not experience 	any 	change 	in 	aide
hours; 	and two teachers experienced decreases. 	In 	1984-85,
Sandra Barnes 	had one hour 	fifty minutes 	of 	SIP aide time. 	From
September 	1985 	to January 	1986, 	she received 	forty-five minutes,
6
9

and 	for 	the rest of 	the 	school year, 	received one hour 	twenty
minutes. 	Charisse 	Fitzgerald had her 	aide 	time 	reduced 	from 	one
hour 	fifteen minutes 	to one hour.
At Hayman, 	five teachers had their aide time increased; 	four
teachers 	experienced no 	change; 	and two 	teachers 	had their 	aide
time reduced. 	Lori 	Singelyn had her 	aide 	time 	reduced 	from
approximately two hours 	in 	1984-85, 	to one hour thirty-five
minutes 	in 	1985-86. 	Lisa Maloney had her 	aide 	time 	reduced 	from
three 	hours 	to 	one hour 	thirty minutes 	for 	the 	latter half 	of
school year 	1985-86.
Impact 	of 	Reductions 	on Teachers
Four teachers 	testified as 	to 	the 	impact on their day 	caused
by a reduction in SIP aide time. 	Before her aide 	time was
reduced, 	Jalyne 	Leonhart described her workweek as 	constituting
approximately 47 	hours per week: 	eight hours 	fifteen minutes
per day, 	plus 	about 	five hours 	of work at home each week. 	In
1985-86, 	Senate Bill 	(SB) 	813 necessitated an increase in the
instructional 	day by thirty minutes, 	a matter not directly at
issue 	in this 	case. 	This, 	coupled with her elimination of
instructional 	aide time, 	required that 	she 	spend approximately 	53
hours3 per week at 	school. 	Leonhart testified that the primary
3It 	should be 	noted 	that 	Leonhart's 	testimony 	equivocated
concerning the amount of 	the 	increase. 	On one 	of 	EVEA's
exhibits, 	she indicated that the 	1985-86 decrease 	in
instructional 	aide hours was 	the 	cause 	of 	her workweek 	increasing
by at least 	15 hours. 	However, 	at the hearing she testified, 	at
one point,' 	that her workweek was 	increased by 	six hours. 	At
another point 	in her testimony, 	she 	indicated that 	the 	increase
amounted to ten hours. 	(See p. 	11, 	infra.)
7

reason why the 	elimination of 	SIP 	aide 	time 	contributed to 	an
increase 	in her workday was 	because 	she no 	longer had 	the
assistance 	of a SIP 	aide 	in paper 	correcting, 	helping the
children with 	seat work, 	calling parents, 	and performing 	first
aid. 	In 	1985-86, 	Leonhart personally had to accomplish 	such
tasks which, 	in turn, 	she testified, 	impinged upon her time
available when 	she was 	not required to 	instruct 	students.
Nancy Spohn, 	a teacher at Butterfield, 	also testified to an
impact 	on her 	instructional 	day 	caused by a decrease 	in 	SIP 	aide
time. 	At the beginning of the 	1984-85 	school year, 	Spohn had
three hours 	of 	SIP aide 	time. 	This was 	reduced to two hours 	ten
minutes 	sometime between January and March 	1985. 	She 	had no 	SIP
aide 	time 	in 	school 	year 	1985-86. 	As 	to impact on her workday
caused by the 	elimination of 	aide 	time, 	Spohn testified that 	in
1984-85, 	she took approximately 45 minutes 	each day 	for lunch.
The 	contract entitles each teacher to 	30 minutes. 	After 	the
elimination of 	aide 	time, 	Spohn worked through her 	lunch hour 	and
ate at her desk. 	Spohn testified 	further, 	that 	she had to use
planning time 	for doing things 	that her aide 	normally did, 	such
as 	cleaning up after art projects 	and photocopying materials. 	In
addition, 	Spohn had to assume ten minutes per day instructing
physical 	education when 	she normally had a break. 	In all, 	she
estimates 	that 	her workweek 	is 	approximately 	five 	hours 	longer
as 	a result of not having a 	SIP aide.
Another witness, 	Fran Easter, 	had her aide time reduced 	from
three hours 	per day in 	1984-85, 	to one hour thirty minutes 	in
8

1985-86. 	As 	to an impact on her working day, 	she testified that,
by 	losing the assistance 	of her instructional 	aide, 	Easter now
had to prepare additional 	seat work, 	correct more papers, 	and
gather 	and distribute 	papers 	to 	her 	students 	for 	them 	to 	take
home. 	This 	took her approximately 	five 	additional 	hours 	per
week.
Sue Moore, 	a kindergarten teacher, 	testified that her aide
time was 	also reduced 	from three hours 	in 	1984-85, 	to one hour
thirty minutes 	in 	1985-86. 	After the reduction, 	she had to
assume 	the 	duty of 	supervising recess 	for 	ten to 	fifteen minutes,
a 	task 	previously performed by her 	instructional 	aide. 	She 	also
had to 	spend more 	time 	correcting papers, 	putting up bulletin
boards, 	and escorting students 	to places on campus. 	It 	should be
noted 	that 	the 	record 	also 	showed 	that Moore was 	a 	mentor 	teacher
in 	1985-86, 	and was not one the previous year. 	In addition, 	the
instructional 	minutes 	for 	kindergarten were 	increased 	by 	fifteen
minutes 	in 	1985-86. 	In all, 	her workweek was 	increased by
approximately 	five hours 	in 	1985-86.
ALJ's 	Proposed 	Decision
The 	ALJ 	ultimately 	concluded 	that 	the 	District 	violated
subdivision 	(c) 	and, derivatively, 	subdivisions 	(a) 	and 	(b),
of 	EERA 	section 	3543.5, 	by permitting the reduction of 	SIP
instructional 	aide hours 	for 	some 	teachers. 	The ALJ 	concluded
that the 	District, 	through its 	acceptance of 	Keith McCarthy's
recommendations 	regarding the 	number 	of 	SIP 	instructional 	aide
hours 	allocated to teachers 	for 	school 	year 	1985-86, 	reached a
99

firm decision to reduce aide time, 	which had the 	foreseeable
impact of 	lengthening the workday of 	some teachers. 	Thus, 	the
District had the 	obligation, 	but 	failed 	to give 	the 	union notice
and an 	opportunity to negotiate 	the 	"foreseeable 	impact" 	of 	its
decision. 	Further, 	the reduction in aide hours 	resulted 	in not
only potential, 	but actual 	effects. 	In reaching his 	conclusion,
the ALJ 	credited the 	testimony of 	teacher witnesses 	Leonhart,
Spohn, 	Easter 	and Moore 	that their 	instructional 	day was
increased in 	1985-86, 	and that this 	increase was 	caused by each
teacher's reduction in aide 	time. 	The ALJ 	found the 	latter
result 	occurred because 	tasks 	previously 	performed 	by 	aides 	now
had 	to be 	performed 	solely by teachers, 	often requiring them 	to
work extra time during the duty day, 	lunchtime, 	after 	school, 	at
home or on weekends.
DISCUSSION
The 	utilization of 	SIP 	funds 	for 	school 	year 	1983-84 	has
already been the 	subject of 	an unfair practice 	charge, 	which
culminated 	in Elsinore Valley Education Association, 	CTA/NEA v.
Lake Elsinore School District 	(1987) 	PERB Decision No. 	646. 	In
Lake Elsinore, 	No. 	646, 	the SIP site councils at two of the five
schools, 	Wildomar and Butterfield, 	reallocated SIP monies 	for the
1983-84 	school 	year 	in a manner benefiting the 	entire 	K-6 	student
body, 	rather than merely 	students 	in K-3, 	as had been done 	since
the recent origin 	(1982-83) 	of the 	SIP program. 	The 	reallocation
of 	SIP 	funds 	necessitated reducing 	the 	amount 	of 	funds 	budgeted
the 	previous 	year to pay the 	salaries 	of 	SIP 	instructional 	aides
10

in 	some K-3 	classrooms. 	Accordingly, 	some teachers 	at Wildomar
and 	Butterfield 	schools 	had 	SIP 	aides 	in 	their 	classrooms 	for
fewer hours 	as 	compared to the previous 	year.
This 	Board held that 	the 	District did not have 	the
obligation to provide 	the 	exclusive representative 	of 	the
certificated 	unit 	notice 	and 	an 	opportunity to 	negotiate 	the
possible 	effects 	of 	the 	District's 	nonnegotiable 	decision to
reduce 	the hours 	of members 	of 	the 	classified bargaining unit.
The 	Board relied 	in part 	on the 	fact 	that 	the 	Legislature
intended 	for 	the 	SIP aides 	to be 	utilized to provide 	direct
"educational 	assistance 	to the 	students 	in the 	subject areas 	of
reading, 	mathematics, 	and language arts. 	. . . " 	(Ed. 	Code, 	sec.
52000.) 	The record in Lake Elsinore, 	No. 	646, 	showed that, 	for
the most part, 	teachers were aware of this 	legislative goal 	of
SIP. 	Furthermore, 	the record was not clear on whether it was 	the
reduction 	in 	SIP 	aide 	time 	or 	an entirely different 	factor which
caused 	the 	increase 	in preparation 	time 	to which 	four 	teachers
testified. 	Other 	factors which might 	have 	contributed 	included
teacher experience, 	class 	size, 	competence of individual 	aides
and learning difficulties 	of 	some 	students. 	Inasmuch as 	the
reduction in SIP aide time exerted, 	at best, 	an indirect and
speculative 	impact on the workday of 	teachers, 	the 	District
did not 	violate 	EERA by 	failing 	to 	give 	EVEA notice 	and 	an
opportunity to negotiate the 	"effects" 	of 	its decision to
reallocate 	SIP 	funds.
. ..
11

Consistent with Lake Elsinore, 	No. 	646, 	we reverse the ALJ
and dismiss 	the 	complaint. 	The 	legislation under which 	SIP was
established underscores 	that the 	fundamental 	purpose 	of 	it 	is 	to
maximize direct 	instructional 	assistance 	to 	students. 	For
example, 	Education Code 	section 52000 	states, 	in pertinent part:
The 	Legislature 	declares 	its 	intent to
encourage 	improvement 	of 	California
elementary . 	. 	. 	schools to ensure that all
schools 	can respond 	in 	a 	timely 	and effective
manner to the educational, 	personal, 	and
career goals 	of every pupil. 	The Legislature
is 	committed to 	the 	belief 	that 	schools
should:
(b) 	Assure that pupils 	achieve proficiency
in mathematics 	and 	in the 	use 	of 	the 	English
language, 	including reading, writing,
speaking 	and 	listening.
(c) 	provide pupils 	opportunities to
develop skills, knowledge, awareness, and
appreciations 	in a wide 	variety of 	other
aspects 	of 	the 	curriculum 	. . . .
(d) 	Assist pupils 	to develop esteem of
self and others, 	personal and social
responsibility, 	critical thinking, 	and
independent 	judgment.
(e) 	Provide 	a range of alternatives 	in
instructional 	settings 	and 	formats 	to 	respond
adequately to 	the 	different ways 	individual
pupils learn.
The Legislature, 	by the provisions 	of this
chapter, 	intends to 	support the efforts of
each participating 	school 	to 	improve
instruction, 	auxiliary services, 	school
environment, 	and school organization to
meet the needs 	of pupils 	at that 	school.
(Emphasis 	added.)
12

Further, 	similar to the record in the previous 	case,
teachers, 	in the instant case, 	were aware of how the SIP
instructional 	aide's 	time was 	to be 	expended. 	For example,
Charging Party's 	chief witness, 	Jalyne Leonhart, 	testified that
she 	understood that 	the 	District's 	policy was 	to use 	SIP
instructional 	aides 	to provide 	"as much direct 	services 	to
students as possible." 	Indeed, 	on January 29, 	1986, 	the parties
memorialized their mutual 	understanding 	that 	SIP 	aides 	were 	to be
primarily utilized 	to 	provide 	direct 	instructional 	services 	to
students, 	as 	opposed to performing what 	the ALJ 	characterized as
"facilitative" 	tasks which primarily assisted teachers. 	The
parties' 	Memorandum Of Understanding reads, 	in pertinent part:
The 	most 	recent 	research on 	"effective
schools" 	indicates a high ratio of adults
(teachers, 	instructional aides, 	and parent
volunteers) 	to students. 	The research also
shows 	that there 	is 	a high percentage 	of 	the
instructional 	aides 	time 	spent 	in direct
contact with 	students. 	It is 	agreed that the
primary responsibility 	of 	instructional 	aides
is 	to provide direct 	service to 	students.
The majority of 	instructional 	aides 	time
should 	be 	spent working 	directly with
students. 	(Emphasis added.)
Consistent with our reasoning in Lake Elsinore, 	No. 	646, 	we
find 	that 	any reduction 	in 	a 	teacher's workday resulting 	from 	an
SIP instructional aide is, 	at best, 	a fortuitous 	side effect of
a 	program 	intended by the 	Legislature 	for 	the 	sole 	benefit 	of
students. 	Conversely, 	the extent to which 	some teachers were
required, 	as a result of a reduction in SIP aides' 	hours, 	to
adopt 	a 	teaching 	style 	to 	accommodate 	one 	less 	adult in the 	room,
13

reflects more upon the professional nature of teaching, 	rather
than a 	District-compelled 	increase 	in workload. 	(Lake 	Elsinore,
No. 	646, p. 	14.)
Furthermore, 	the 	testimonial 	evidence 	is 	far 	from persuasive
regarding the 	amount of the 	increase 	in 	some 	teachers' 	workday,
as well 	as whether or not the 	1985-86 reduction in SIP aide hours
was 	the cause of 	such an increase. 	For example, 	the testimony of
Charging Party's 	chief witness, 	Jalyne Leonhart, 	equivocated as
to 	the 	amount her workday was 	increased. 	At 	one point 	in her
testimony, 	she 	indicated that 	she 	spent ten more hours 	per week
working in 	1985-86 	as 	compared to the previous 	year. 	She 	also
testified to an increase of 	six hours. 	However, 	when 	she broke
her work 	schedule down in 	1984-85 	and 	1985-86, 	the record is 	not
persuasive 	as to 	such a large 	increase. 	For example,
Ms. 	Leonhart testified that, 	in 1984-85, 	she would arrive forty-
five minutes before her 	students 	arrived, 	leave 	two hours 	after
class 	in the 	evening, 	and would then 	spend approximately one 	hour
a day working at home. 	In 	1985-86, 	Leonhart testified that 	she
spent a minimum of 	one 	hour per day working at home 	-- 	the 	same
amount of time 	as 	in 	1984-85. 	She 	also testified that 	she 	spent
approximately 	sixty-five 	minutes 	at 	school 	before 	her 	students
arrived, 	and 	she did not usually leave until 	two hours 	after 	the
end of 	the 	school 	day. 	This 	amounts 	to an increase 	of 	only
approximately two hours 	per week. 	The 	only other 	increase 	noted
by Ms. 	Leonhart in the record is 	three extra hours 	she 	claimed to
have put 	in on weekends 	in 	1985-86. 	This would total 	only 	five
14

hours 	per week, 	not 	the 	six and ten 	she 	claimed elsewhere 	in her
testimony.
Moreover, 	the testimony of Leonhart, 	as well 	as that of
other 	teachers, 	elucidated certain 	factors 	other 	than reductions
in SIP 	aide 	time which 	contributed 	to 	an 	increase 	in 	some
teachers' 	workday. 	For example, 	SB 813 resulted, 	for 1985-86, 	in
the 	negotiated 	increase 	of 	15 	instructional minutes 	per day 	for
kindergarten teachers, 	and 30 	instructional minutes 	for all 	other
teachers 	in the District. 	This 	increase 	in instructional minutes
associated with 	SB 	813 	additionally 	resulted 	in 	increased
preparation time, 	which also lengthened 	some teachers' 	workday.
Finally, 	some 	teachers 	had additional duties 	in 	1985-86 	unrelated
to the 	loss 	of aide 	time which increased their workday, 	such as
mentor 	teaching 	and 	team 	teaching.4
In its 	exceptions 	to the proposed decision, 	the District
argues 	that 	the 	record before 	us 	demonstrates 	that 	the 	changes 	in
the ratio of aides 	to teachers were part of a dynamic 	status 	quo
which 	fluctuated with 	enrollment 	growth, 	availability 	of 	funding,
and 	shifting priorities 	of 	the 	site 	councils. 	We 	agree. 	EVEA
introduced 	evidence 	pertaining 	to 	the 	level 	of 	aide 	funding 	for
only one year prior to the reduction--1984-85. 	Instead of 	a
consistent 	level 	of 	SIP aide 	time 	amongst teachers within 	the
4It 	should 	also be 	recognized 	that 	certain 	factors 	existed
which offset 	1985-86 	workday 	increases 	claimed by 	some 	teachers.
Namely, 	the record 	shows that the reduction of SIP aide time
commensurately reduced 	the 	time 	teachers were 	required 	to 	prepare
for and plan the aides' 	work.
15

District, 	the 	evidence 	reveals 	a 	fluid and haphazard pattern 	in
which even teachers 	instructing the 	same 	grade 	level 	at 	the 	same
school 	site 	did not 	necessarily 	share 	a 	consistent 	number 	of 	aide
hours 	in 	1984-85.5 The 	disparities 	are 	greater when one 	compares
teachers who 	instruct different 	grade 	levels 	or who 	teach at
different 	schools.
In 	short, 	the record does 	not reveal 	a consistent amount of
SIP 	aide 	time 	to which 	District 	teachers were 	entitled by 	either
contract or past practice. 	Instead, 	the process by which SIP
aide 	time was 	allocated 	amongst 	teachers 	is 	distinguished 	only by
its 	fortuity. 	We 	find 	it 	inappropriate 	for the 	Board to 	find a
violation 	of 	EERA where 	the 	claimed 	impact 	is 	on 	something 	--SIP
aide 	time--which 	is 	so 	fluid and 	fluctuating as 	to defy even the
characterization 	of 	being a 	term 	and 	condition 	of 	employment.
We would 	further reverse 	the ALJ 	in his 	acceptance 	of
Charging 	Party's 	argument 	that 	the 	District violated 	EERA by
failing to bargain the 	potential 	impact 	of 	a reduction 	in 	aide
time on teachers' 	evaluations, 	tenure and job security. 	Although
the 	ALJ 	recognized 	that 	the 	record 	failed 	to 	demonstrate 	actual
F	'
16
For	or 	example, 	at Machado, 	three kindergarten teachers had
three hours of SIP aide time 	in 	1984-85, 	but one teacher had
only 	one 	hour 	and 	thirty minutes 	and 	another had no 	aide 	time.
Concerning Machado's 	first grade teachers, 	three of them had
three hours 	of aide time 	for the entire 	1984-85 	school year, 	but
one was 	allotted only one 	and one-half hours 	of 	aide 	time 	for
the 	latter half 	of the 	school 	year. 	Of 	the 	four 	second-grade
teachers, 	all had one and one-half hours of aide time. 	Of the
three third-grade teachers, 	one was given three hours, 	while the
other 	two had 	only 	one 	and 	one-half 	hours 	of 	aide 	time. 	The
disparities 	in aide 	time 	amongst teachers 	are 	just as 	great 	at
the 	other 	school 	sites.

impact, 	he 	found a possible 	future 	impact to 	suffice. 	In Fremont
Union High School District 	(1987) 	PERB Decision No. 	651, 	this
Board refined 	the 	test 	articulated 	in Mt. 	Diablo 	Unified 	School
District 	(1983) 	PERB Decision No. 	373 	governing when management
is 	obligated to bargain the 	in-scope 	effects 	of 	a nonnegotiable
decision 	(to lay off employees). 	Specifically, 	the Mt. 	Diablo
test required 	the 	negotiation 	of 	those 	effects 	which may
reasonably be 	foreseen to 	exert an adverse 	impact 	on employees'
working conditions. 	In Fremont, 	this Board interpreted the
Mt. 	Diablo 	standard to 	attach a bargaining obligation only 	"to
-
those 	immediate 	or prospective 	effects which 	are 	reasonably
certain 	to 	occur 	and causally related 	to 	the 	nonnegotiable
decision at issue." 	(Fremont Union HSD, 	supra, 	p. 	25.) 	Quite
simply, 	this 	record does 	not meet 	the requirements 	of 	the 	Fremont
test. 	On the 	contrary, 	there was no evidence 	showing that a
negative effect on teachers' 	evaluations, 	tenure and 	job 	security
was 	reasonably certain 	to 	occur.
ORDER
For 	the 	foregoing reasons, 	the unfair practice 	charge 	in
Case. 	No. 	LA-CE-2349 is hereby DISMISSED.
Members 	Craib 	and 	Shank 	joined 	in this 	decision.
17

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
ELSINORE VALLEY EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
LAKE 	ELSINORE 	SCHOOL DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-2349
PROPOSED 	DECISION
(1/28/87)
)
)
)
)
)
)
)
Appearances; 	A. 	Eugene Huguenin, 	Jr. 	Esq. 	for Elsinore Valley
Education Association, 	CTA/NEA; 	Parham and Associates, 	Inc. 	by
James 	C. 	Whitlock for Lake Elsinore 	School 	District 	.
.. . 	Before Manuel M. 	Melgoza, 	Administrative Law Judge.
I. 	PROCEDURAL HISTORY
The 	above-captioned Unfair 	Practice 	Charge 	(Charge) 	was
filed 	by 	the 	Elsinore Valley Education Association, 	CTA/NEA
(Union, 	Association or Charging Party) 	on March 3, 	1986,
alleging 	that 	the 	Lake 	Elsinore 	School 	District 	(District,
Employer 	or 	Respondent) 	violated Educational 	Employment
Relations Act1l (EERA or Act) 	sections 3543.5(a), 	(b), 	and 	(c)
1The EERA is codified at Government Code sections 3540,
et 	seq. 	Section 3543.5 	states:
It 	shall be unlawful for a public school
employer 	to:
(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.
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
-~------>

by unilaterally 	reducing 	the 	amount 	of 	instructional 	aide
assistance 	to 	teachers without 	notice 	and 	an 	opportunity 	to
bargain over 	the effects 	of 	that 	action. 	On March 21, 	1986,
the Public Employment Relations 	Board 	(PERB or Board) 	issued 	a
Complaint 	against 	Respondent 	incorporating 	the 	Charge 	by
reference. 	Respondent's Answer 	to 	the Complaint, 	filed on
April 	8, 	1986, 	admitted certain 	allegations 	and 	set 	forth two
affirmative defenses, 	including 	that 	the Charge was 	untimely
filed.
An 	informal 	conference 	held 	on May 	6, 	1986 	failed 	to 	result
in 	a 	settlement 	of 	the underlying 	issues. 	A 	subsequent 	request
by 	the 	Charging 	Party 	to 	consolidate 	this 	case 	for 	hearing 	with
Case No. 	LA-CE-2282, 	involving the same parties, 	was granted on
May 15, 	1986.
On May 21, 	1986, 	the Respondent 	requested 	that Case No.
LA-CE-2349 	be 	held 	in 	abeyance 	pending 	Board 	resolution 	of 	Case
No. 	LA-CE-1827, 	also involving the same parties. 	The 	latter
case 	involved 	an 	alleged 	unilateral 	reduction 	of 	instructional
aide 	services 	occurring 	in 	1983. 	The 	request was 	denied 	on
May 28, 	1986. 	Respondent's 	request 	to conduct 	a 	formal 	hearing
at 	the District's 	offices was 	granted on the 	same date.
(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

Pursuant to 	a Notice of Hearing dated May 28, 	1986, 	a
formal 	evidentiary 	hearing 	was 	conducted 	before 	the 	undersigned
on July 8 	and 	9, 	1986. 	On the 	first day of 	the hearing, 	the
parties 	reached 	a 	settlement 	of 	case number LA-CE-2282. 	The
hearing 	thereafter 	proceeded 	only 	on 	case 	number 	LA-CE-2349.
At 	the 	conclusion of 	the hearing, 	the parties 	agreed to
submit 	simultaneous 	post-hearing 	briefs 	and 	simultaneous
responsive briefs. 	Pursuant 	to Charging 	Party's 	request, 	with
the concurrence 	of 	Respondent, 	the deadline 	for 	filing
post-hearing 	briefs was 	extended. 	Opening 	briefs 	were 	filed 	on
October 	16, 	1986. 	No 	responsive briefs were 	filed. 	The case
was 	thereafter 	submitted 	for 	proposed 	decision.
II. 	FACTS
A. 	Background
The District 	is 	a 	public 	school 	employer within the meaning
of 	EERA 	section 3540.l(k) 	and 	the Union 	is 	the exclusive
representative 	of 	the 	certificated 	bargaining 	unit 	of 	District
employees within the meaning of EERA section 3540.l(e). 	The
District 	is 	comprised of 	elementary 	schools with pupils 	in
grades 	K-6. 	The District has 	four 	school 	sites, 	but 	operates
two 	schools 	(Wildomar 	School 	and Jean Hayman 	School) 	at 	one
site.
Each 	school 	has 	a 	site 	council made up 	of 	certificated
employees, 	classified employees, 	parents 	and members of 	the
administration. 	The 	school 	site 	councils 	make 	recommendations
to 	the 	school 	board on how to utilize monies 	provided 	to 	the
33

District 	by 	the 	State 	of 	California's 	School 	Improvement
Program 	(SIP). 	The 	school 	board may accept 	the 	proposed plans
of 	the 	site 	councils 	or may 	reject 	and 	send 	them back 	for
modification. 	In practice, 	the 	site council's 	spending 	plans
are 	scrutinized by, 	inter 	alia, 	the District's 	coordinator 	of
projects 	and 	the director 	of 	personnel, 	who 	also make
recommendations 	to 	the 	school 	board 	after 	reviewing 	the 	site
council's 	spending 	requests.
The 	State Department 	of 	Education will 	not 	forward 	any 	SIP
monies 	to 	the District 	unless 	the 	school 	board 	accepts 	the 	site
council's plans. 	However, 	after the 	receipt of 	those 	funds,
and until 	November 	of 	each year, 	there 	is 	some 	flexibility
allowed whereby the 	spending 	plan may be 	adjusted. 2	2
B. 	Instructional Aides
Although 	the 	record 	is 	not 	clear 	as 	to 	how 	long 	paid
instructional 	aides 	have 	been utilized 	by the 	District, 	they
have 	been employed 	at 	least 	since 	the 	beginning 	of 	Jalyne
Leonhart's 	five-year 	tenure 	as 	a 	teacher. 	Traditionally, 	the
District 	had been unwilling 	to 	use 	its 	general 	fund 	to 	employ
the 	aides. 	Instead, 	it 	insisted 	that 	aides 	be 	funded 	only with
SIP monies.3 There were exceptions. 	For example, 	in 	some
2The 	site 	council's 	planning 	usually 	occurs 	in 	the 	spring
of 	each year 	and 	the 	funds 	are 	received 	for 	use 	in 	the
following 	fall.
3Bilingual 	aides, 	not 	in issue herein, 	are funded with
LEP 	(Limited English Proficient) 	monies.
4

cases, 	the District 	augmented 	its 	School 	Improvement 	Program by-
matching 	SIP moneys with 	its 	general 	fund 	in order 	to 	increase
computer 	aide 	services 	and 	library 	aide 	services. 	Employees
hired 	as 	"noon-duty aides" 	or 	"playground 	aides," 	paid 	for 	by
general 	fund monies, 	were 	sometimes used 	in the classrooms.
The 	classroom 	instructional 	aides 	performed 	a 	variety of
duties 	incident to, 	and facilitative of, 	the direct
instructional 	program. 	Much of 	the 	aides' 	work 	involved 	small
group 	follow-up 	instruction. 	They monitored 	students 	after 	a
teacher-directed 	lesson 	and made 	sure work was 	completed. 	In
addition, 	they provided 	students 	one-on-one 	help with
assignments. 	They performed 	a variety of 	tasks 	to 	reinforce
math, 	reading, 	writing, 	and social studies 	lessons.
Seat work, 	including 	science 	and 	art 	projects 	for 	a 	segment
of 	the class, 	was monitored by the 	aides while the teacher
instructed another 	segment. 	Many times, 	as 	in art projects,
the 	seat work required 	the 	aide 	to 	help 	the young 	children cut,
staple, 	paste, 	and fasten materials. 	Similarly, 	while the
teacher worked with 	one 	reading 	group, 	the 	aide would work with
the others 	to 	reinforce 	other 	current 	lessons. 	The 	aide
prepared 	his/her 	own materials 	for 	this 	purpose.
Instructional 	aides 	also 	prepared 	make-up work 	for 	children
who were 	absent 	and, 	when the 	student 	returned, 	the 	aide would
monitor 	them 	to 	ensure 	completion. 	Completed 	student work
would 	be 	compiled 	and prepared 	by 	the 	aide 	for 	the 	children 	to
take 	home 	to 	their 	parents, 	along with whatever 	other 	notices
55

the 	office wanted 	to 	send 	home. 	The 	aides would 	also 	prepare
"reading 	packets" 	for 	reading 	reinforcement, 	and help 	children
individually with 	that 	reinforcement.
An 	equally valuable 	service 	provided 	by the 	aides 	was 	in
record-keeping. 	This 	ranged 	from tedious 	correction of 	daily
student 	work 	to 	administering 	and 	grading 	tests 	and 	to
recording 	grades 	in children's 	cumulative 	files. 	They also
helped 	teachers 	fill 	in data 	on 	standardized 	testing 	materials.
In order 	to 	free time 	so 	that 	teachers 	could 	prepare 	for
upcoming 	lessons 	or 	to 	tidy the classroom 	for 	immediate use,
the 	aides 	often 	supervised 	children 	during 	their 	directed
physical 	education 	period 	and 	performed 	pre-school 	yard 	duty.
They 	also 	administered minor 	first 	aid 	to 	students 	and/or
walked 	the 	injured 	children to 	the 	school 	nurse's 	office.
A variety 	of 	other 	facilitative 	tasks 	were 	perfomed 	by
aides 	in order 	to 	free 	the 	teacher 	to 	prepare 	for 	instruction.
These 	included 	telephoning 	parents 	to 	schedule 	conferences 	or
to 	request 	that 	parents 	bring 	in materials 	forgotten 	at 	home by
students. 	Also 	included was 	the preparation of 	art work 	for
student 	projects, 	putting 	away the 	art materials 	at 	the end 	of
the 	art 	lessons, 	and cleaning up 	after 	the 	same. 	In
preparation 	for 	lessons, 	they procured 	educational 	supplies
from the schools' 	learning 	specialists. 	Likewise, 	the 	aides
obtained 	needed 	materials 	from 	supply 	rooms 	and 	duplicated
materials 	to 	be handed 	out 	to 	students. 	They performed
6

bulletin board work, 	including 	pinning 	up 	students' 	completed
work and changing 	the board 	in 	such 	a way as 	to maintain 	a
classroom environment 	conducive 	to 	learning.
C. 	Aide Service Level 	in 1984-854
The 	instructional 	aides 	in 	the 	1984-85 	academic year were
concentrated 	in grades 	K-3. 	The 	number 	of 	instructional 	aide
hours 	per 	teacher 	varied depending 	upon 	the 	school 	and 	the
grade level. 	For example, 	at Elsinore School, 	most of 	the
teachers 	in 	the 	regular 	program were 	provided with 	three 	hours
of 	aide time 	five days 	per week, 	regardless 	of 	grade 	level. 	At
Machado 	School, 	the 	only 	regular 	program teachers who 	had
three-hour 	aides were at 	the 	kindergarten 	level. 	First, 	second
and 	third 	grade 	teachers 	by-and-large were 	provided with 	one
and 	one-half 	hours 	per 	day of 	aide 	assistance.
Even with the 	services 	of 	the 	aides 	at 	the 	1984-85 	level,
the 	teachers 	typically 	spent 	time 	beyond 	that which was
contractually required, 	on-site and at home, 	to prepare, 	plan,
and execute 	their 	duties 	as 	instructors. 	On 	isolated
occasions, 	they would go 	to 	school 	on weekends 	to 	catch up on
some 	of 	their 	duties 	and/or 	to work on bulletin boards 	or
special projects.
4 The 	level 	of 	aide 	services 	provided 	to 	teachers 	previous
to 	that 	school year, 	the 	subject of 	an unfair practice
allegation 	in Case Number LA-CE-1827, 	is 	currently on the PERB
docket 	on 	appeal 	from 	an Administrative 	Law Judge
determination 	adverse 	to 	the 	District.
77

1. 	Events 	Giving 	Rise 	to 	a Change 	in Level 	of Aide 	Service
During 	that 	school year, 	certain events 	conspired 	to 	cause
a 	change 	in 	the 	level 	of 	aide 	services 	provided 	per 	teacher.
Lake Elsinore District was 	growing 	at 	a 	rapid 	rate. 	Between
the 	1984-85 	and 	1985-86 	school years, 	its 	enrollment 	increased
by 13%, 	with 65% of 	that 	increase occurring at 	the K-3 	grade
levels. 	From the beginning 	to 	the end of 	the 	1984-85 	school
year, 	the number of 	students 	grew by about 	500. 	The number 	of
certificated 	staff 	was 	enlarged 	to 	provide 	the 	required
services. 	For 	several 	reasons, 	including 	the District's
continued unwillingness 	to 	use 	its 	general 	fund 	to 	employ
classroom aides, 	the number 	of 	aides was 	not 	increased 	to 	keep
up with 	the 	rapid 	growth.
During 	the 	spring of 	1985, 	each of 	the 	school 	site councils
requested 	an 	increase 	in 	the 	number 	of 	instructional 	aides 	to
be 	provided 	for 	school 	year 	1985-86. 	Although 	the 	record does
not 	specify 	the 	precise date during 	the 	1984-85 	school 	year,
one 	or 	more 	of 	the 	site 	councils 	(Butterfield 	School 	and
Elsinore Elementary School) 	also 	recommended 	that 	the
utilization 	of 	aides 	be 	re-prioritized. 	According 	to 	Principal
Gordon Keifer, 	Elsinore wanted 	the 	aides 	placed 	at 	the 	lowest
level 	(with a cap of 	three hours) 	with their use 	at 	higher
levels 	as 	funding 	permitted. 	Accordingly, 	aide 	staffing would
start 	at 	kindergarten at 	three hours 	per class, 	continue to
CO
	8

first grade, 	and 	if 	the District 	ran out 	of money before 	it 	got
to 	second 	grade 	"they'd 	be 	out 	of 	luck."
Jalyne Leonhart, 	who 	is 	a member of 	the site council 	at
Elsinore 	School, 	testified 	that 	the 	council did discuss 	the
issue of 	placing 	emphasis 	on 	aide utilization 	in grades 	K-2.
However, 	she 	assumed that 	the 	actual 	determination of
allocation of 	aides was made by the 	administration. 	As will 	be
noted 	below, 	the 	administration 	subsequently chose 	to 	put 	these
site council 	recommendations 	into 	force, 	subject 	to 	adjustments
it 	saw 	as 	necessary during 	the 	1985-86 	school year.
The District's 	coordinator of 	projects, 	LaVerne Carlson,
working 	under 	the 	supervision 	of 	Director 	of 	Personnel 	Keith
McCarthy, 	reviewed the 	requests 	for 	additional 	aides 	of 	the
site councils. 	She projected 	the 	estimated cost 	of 	the
requested 	plan 	and 	concluded 	that 	the 	available 	money 	from 	the
SIP would 	be 	insufficient 	to 	fund 	the 	increase. 	The 	conclusion
was 	based 	in 	part 	on the discretionary 	allocation of 	over
$38,000 	to 	District 	overhead 	for 	program 	implementation, 	rather
than to 	the 	purchase of 	classroom aide 	time.5 This 	amount
equaled 	the maximum percentage 	of 	SIP 	funds 	that 	the 	state
allowed 	districts 	to 	allocate 	to 	overhead.
On August 	2, 	1985, 	Carlson 	submitted her 	report with 	the
above 	conclusions 	to McCarthy. 	Considering 	her 	projections 	on
5McCarthy testified 	that 	a 	three-hour 	aide 	cost 	an
estimated 	$4,200 	per year.
9

the 	availability 	of 	SIP money 	and 	the 	District's 	election 	not
to use 	its 	general 	fund 	for 	this 	purpose, 	she 	recommended 	a
reduction 	in 	the 	number 	of 	aides 	hired 	for 	Elsinore 	School 	from
both the 	requested number 	(9) 	and the 	1984-85 	level 	(8), 	to
seven three-hour 	aides. 	For 	Butterfield, 	Wildomar 	and Hayman
Schools, 	it was 	recommended that 	the number of 	aides 	be
increased 	to 	the 	level 	requested 	by the 	site 	councils. 	With
respect 	to Machado 	School, 	12 	three-hour 	aides were
recommended, 	an 	increase of 	2 	from the previous year, 	and a
decrease of 	2 	from the 	site 	council's 	request. 	Despite 	the
modest 	overall 	increase 	in 	the 	total 	number 	of 	three-hour
aides, 	the 	growth 	in enrollment 	and the 	increase 	in the number
of 	classrooms 	more 	than offset 	it, 	causing 	the number 	of
three-hour 	aides 	per 	teacher 	to 	decrease.
The 	school 	board members were 	apparently 	aware 	of 	the
teachers' 	desire 	to maintain the current 	level 	of 	aide
services, 	for 	they discussed 	the 	issue during 	the 	summer
meetings. 	According to Sue Moore, 	a teacher 	at Machado School,
the 	board members 	stated 	that 	they 	felt 	that 	the 	amount 	of
money the 	schools were 	receiving 	for 	aides was 	adequate 	for
what 	they considered 	"aiding" 	to 	be, 	and one board member
consistently took the 	position 	that 	aides 	were 	a 	"passe" 	thing
and not 	in 	"vogue."
During 	the 	time 	that 	the 	site councils were 	engaged 	in
devising 	and 	submitting 	their 	plans 	and 	during 	the 	time
10

McCarthy's 	office was making 	its 	analysis 	and 	recommendations,
the Union was 	left 	out 	of 	the process. 	Although 	it was
foreseeable 	that 	the 	reallocation of 	aides 	and 	the 	failure 	to
maintain the 	level 	of 	aide 	service 	at 	an even pace with 	the
enrollment 	growth would have 	an effect 	on teachers' 	jobs, 	there
is 	a 	lack of 	evidence that 	any notice 	to 	the Union was 	given.
D. 	The 	1985-86 	School Year
Although 	some 	teachers 	were 	told 	by 	their 	principals 	that
their 	level 	of 	aide 	service might 	be 	reduced 	or 	eliminated
during 	the 	spring 	of 	1985, 	they did 	not 	learn exactly what
would 	happen until 	the 	beginning 	of 	the 	next 	school 	year,
September 	1985. 	At 	a pre-school meeting 	that month, 	for
example, 	Sue Moore 	and 	her 	colleagues were 	informed by their
principal, 	Carol Holmes, 	how the 	aides would be 	allocated 	at
Machado 	School. 	She told Moore 	that 	instead 	of 	having 	the
assistance 	of 	an 	aide 	for 	three 	hours 	daily as 	she 	had 	enjoyed
in 	1984-85, 	an 	aide would be 	assigned 	to 	her 	class 	for 	only one
and 	one-half 	hours 	per 	day. 	She 	explained 	that 	this was
because 	of 	the 	amount 	of 	funds 	that 	had 	been committed 	and
because 	general 	funds would not 	be used 	to 	"beef 	up" 	the
program.
Fran Easter, 	another teacher 	at Machado, 	was 	also given a
reduction of 	aide 	services 	from three 	hours 	per 	day 	in 	1984-85
to 	one 	and 	one-half 	hours 	in 	1985-86. 	Both Easter 	and Moore
were 	kindergarten 	teachers. 	Although not 	readily 	apparent 	from
11

the 	record, 	when viewed with 	testimony that Machado 	School
added 	classes 	for 	kindergarten 	and 	first 	grades, 	and with 	other
evidence, 	it 	appears 	that 	a determination was made that 	aide
time 	should 	be 	redistributed 	so 	that 	the 	new 	teachers 	would
66have 	some 	aide 	services.
Many 	teachers 	who 	previously enjoyed 	the 	services 	of
instructional 	aides 	lost 	aide 	time completely or 	had 	aide
services 	reduced. 	For example, 	Jalyne Leonhart, 	who had 	a
three-hour 	aide during 	1984-85 	at Elsinore 	School, 	lost 	all
aide 	assistance 	for 	1985-86. 	Other 	teachers 	at 	the various
schools 	who 	had 	a 	three-hour 	aide 	in 	1984-85 	and who 	lost 	all
instructional 	aide 	services 	the 	following 	year 	included 	Sherri
Smith 	(Butterfield), 	Tracy Scarborough 	(Elsinore), 	and Nancy
Spohn 	(Butterfield). 	Others who had 	a 	three-hour 	aide the
previous year, 	but 	had 	their 	services 	reduced 	to 	one 	and
one-half 	hours 	per 	day 	included Lynn 	Stuck, 	Sue Moore 	and 	Fran
Easter, 	all at Machado School.
In Leonhart's 	case, 	the principal 	of Elsinore 	School
withdrew her 	aide 	services 	some 	three weeks 	after 	the 	beginning
of 	the 	1985-86 	school year. 	His 	explanation 	for 	doing 	so was
that 	the 	school's 	growth 	forced 	the 	opening 	of 	a 	new
kindergarten class. 	When the new class was 	opened, 	Leonhart's
6Respondent's Exhibit 	D 	shows 	that 	at 	least 	three
teachers who were 	not 	there during 	1984-85 	- 	Karen Fisher
(kindergarten), 	Lisa Graf 	(kindergarten), 	and Theresa Kent 	(3rd
grade) 	- were each allocated one 	and one-half 	hours 	of 	aide
time 	in 	1985-86.
12

aide was 	sent 	to 	help 	the 	teacher who 	had 	been brought 	in 	to
instruct 	those 	pupils.
A 	few 	teachers 	benefited 	from the 	District's 	enforcement 	of
reallocation 	recommendations 	of 	the 	site councils. 	In the 	case
of 	Butterfield 	School, 	where 	third grade 	teachers 	had 	no 	aide
service 	in 	1984-85, 	each 	received one hour 	of 	aide 	time 	the
following year. 	Second 	grade 	teachers went 	from one 	and
one-half 	hours 	of 	aide 	time 	to 	two 	hours. 	Other 	teachers
experienced 	an 	increase 	in 	aide 	service, 	but 	the 	increase was
due 	to 	an 	assignment 	change 	rather 	than 	a 	reallocation of 	aide
resources 	by the 	District 	and 	its 	site 	councils.
1. 	Impact 	on Teachers
Because 	of 	the many 	services 	traditionally provided 	by
instructional 	aides, 	the 	teachers who 	faced elimination or
reduction of 	that 	service were 	adversely 	affected. 	The 	loss 	of
the 	service 	typically meant 	that 	tasks 	previously 	provided 	by
the 	aides 	now had 	to 	be 	performed 	solely by the 	teacher. 	A
great 	proportion of 	those were 	indispensable 	and 	incapable 	of
being 	performed during 	the 	regular workday. 	They 	now 	had 	to 	be
done 	before 	the 	teacher's 	duty day, 	during 	the 	lunch hour,
after school, 	at home, 	or on weekends.
An 	example 	of 	the 	additional work 	required due 	to 	the 	loss
of 	aide 	services 	is 	the teachers' 	preparation of 	"seat work"
for 	the 	students. 	In 	situations where 	the 	teachers were
working with a 	group or 	segment of 	the class, 	other children
13

had 	to 	be 	assigned 	tasks 	such 	as 	reading 	reinforcement, 	science
or 	art 	projects. 	Previously, 	the 	aides 	not only monitored 	the
seat work while 	the 	teacher was 	busy, 	but 	also did much of 	its
preparation. 	With the 	loss of 	aide time, 	the teacher had to
prepare more 	seat work 	for 	the children. 	Typically, 	according
to the 	teachers' 	testimony, 	the preparation of 	seat work had to
be performed 	outside of 	the 	regular 	instructional 	day. 	This
caused 	some 	teachers, 	who 	had 	already been 	arriving 	to work
earlier 	than required 	in 	1984-85, 	to come 	in yet 	earlier 	in the
day, 	leave 	later 	than they had before, 	and/or 	to 	take 	the work
home.
The 	time 	available 	during 	the work day to 	perform
preparation 	and 	other 	necessary 	functions 	was 	further 	impinged
upon by the 	fact 	that 	teachers 	now had 	to 	assume 	additional
physical 	eduction 	and yard-duty 	supervision 	(pre-school 	and
mid-day), 	in the absence of the aides.
Calls 	to 	parents 	now had 	to 	be made during 	time 	the
teachers 	used 	to 	consider 	breaks. 	Some 	remained 	in their
classrooms 	to 	eat while 	simultaneously preparing 	for 	the 	next
lesson. 	Duplication of 	instructional 	materials 	and 	procurement
of 	materials 	from the 	learning 	specialist 	now had 	to 	be 	done
during 	these 	previously-considered 	break 	times 	as 	well.
The 	burdensome 	task of 	correcting 	papers, 	grading 	them,
posting 	grades, 	and maintaining current 	individual 	student
files was 	now the 	sole 	responsibility of 	the 	teacher. 	Such
14

work was 	required 	to 	be 	accomplished 	immediately 	inasmuch 	as
the 	children could 	not 	advance 	to 	another 	lesson until 	one was
completed. 	Since 	this 	required more of 	the teacher's 	time 	than
when the 	aides were 	assisting, 	whatever 	could not 	be
accomplished 	during 	the 	regular work day had 	to 	be 	done 	before
or 	after hours 	or 	at home.
Although 	it was 	not 	uncommon 	for 	teachers 	to 	take work home
with them in 	1984-85, 	those who 	lost 	aide 	service experienced 	a
marked 	increase 	in 	the 	amount 	of work they had 	to 	perform
there. 	Sue Moore's 	testimony on cross-examination 	regarding
this 	issue, 	is 	typical of 	the 	impact many teachers 	felt:
Q - Was 	it your 	practice 	in 	84-85 	to 	take
work 	home 	after 	school?
A - Yes.
Q 	- And did you 	continue 	to 	do 	that 	in 	85-86?
A - Yes, 	only I went 	from one bag to 	two
bags.
Not 	having 	the 	same 	level 	of 	aide 	service 	in 	1985-86
created 	more work 	for 	teachers 	in 	situations 	where 	substitute
teachers 	had 	to 	take 	a 	class 	over during 	regular 	teachers'
absence. 	Since the 	aide was 	no 	longer 	there to provide 	a
smooth 	transition 	and 	to make 	sure 	that 	lessons 	followed
sequentially, 	the 	regular 	teacher 	had 	to 	prepare very detailed
lesson plans 	and 	instructions 	for 	the 	substitutes 	in 	advance.
Needless 	to 	say, 	that 	extra 	preparation 	impinged 	upon other
non-instructional 	time.
15

Similarly, 	clean-up was 	now 	largely done by the 	teachers.
If 	things 	such 	as 	art projects 	came 	at 	the end 	of 	the
instructional 	day, 	it usually meant 	that 	the 	teacher would 	be
cleaning 	after 	school, 	further 	impinging 	on other 	time.
Compounding 	this 	inconvenience were 	situations 	wherein 	a 	child
was 	injured when 	the 	teacher was 	busy cleaning 	up, 	causing 	him
or 	her 	to 	attend 	to 	the 	child 	and 	leave 	the 	cleaning 	for 	a
later 	time.
Since 	the 	District 	required 	that 	a 	suitable 	room
environment 	be maintained, 	the 	tasks 	of 	upkeep 	and 	regular
changing 	of 	the 	bulletin boards was 	now entirely 	in 	the 	hands
of 	the 	teachers. 	That work now had 	to 	be performed, 	usually on
the teachers' 	own time, 	including on weekends. 	Principal
Kiefer 	acknowledged 	that 	he 	personally 	observed 	some 	increase
in the 	number 	of_teachers who were coming 	in 	to work on
weekends.
Jalyne Leonhart 	testified 	that 	she 	spent 	at 	least 	10 	more
hours 	per week of 	her 	own 	time doing work that was 	brought 	on
as 	a direct 	result 	of her 	loss 	of 	aide 	services. 	This 	increase
was 	over 	and 	above 	the 	time 	she 	had 	voluntarily given 	the
District 	in 	1984-85 	in pursuit of her duties. 	Similarly, 	with
respect 	to Nancy Spohn's 	kindergarten assignment, 	her 	loss 	of
aide 	services 	in 	1985-86 	caused 	an 	increase 	of 	about 	one 	and
one-half 	hours 	of work per week at home, 	30 minutes 	per day
during 	her 	lunch time, 	and 	15 minutes 	per day after 	school.
16

Fran Easter's 	reduction of 	aide 	services 	caused 	her 	to
spend 	approximately one 	hour 	per 	day 	(of 	her 	own 	time) 	more
than 	in 	1984-85. 	Sue Moore 	conservatively estimated 	that 	the
reduction 	of 	aide 	services 	caused 	her 	to 	spend 	at 	least 	one
more 	hour 	per 	day than 	in the 	previous 	year. 	The 	record
reflects 	that 	other 	teachers who 	lost 	aide 	services 	experienced
similar 	increased 	intrusions 	into 	their 	off-duty 	time. 	(See,
e.g., Exhibits 1-10.)
Although 	the 	District 	administration 	urged 	and 	encouraged
teachers 	to 	recruit 	and utilize parent volunteers, 	and despite
teachers' 	efforts 	to carry this out, 	the parent volunteer
program did 	not 	offset 	the 	impact 	of 	the 	reduction of 	aides 	per
teacher. 	The 	teachers were 	able 	to 	recruit 	and obtain 	the
cooperation of 	many parents 	to 	help with duties 	incident 	to 	the
instructional 	program. 	But, 	they were not 	available 	in
sufficient 	quantities, 	the turnover was 	high, 	their 	attendance
was 	sporadic, 	and 	their 	own personal 	schedules made 	it
inconvenient 	to 	rely upon 	them on 	an 	ongoing 	basis.
The 	testimony 	indicated 	that 	most 	were 	available 	for 	about
two 	days 	out 	of 	the week and 	for 	only a 	small 	fraction of 	the
instructional 	day when 	they did 	attend. 	Some volunteers'
personal 	schedules 	enabled 	them to 	attend 	only 	at 	a 	time when
teachers were 	in the middle of 	a 	lesson, 	causing 	the teacher 	to
interrupt 	her 	instruction 	in order 	to 	brief 	the 	parent 	on what
was 	being 	instructed 	and 	to 	give 	the 	parent 	directions.
17

Likewise, 	some parents 	had to depart 	in the middle of 	a 	lesson,
such 	as 	art, 	leaving 	the 	teacher with the 	responsibility of
finishing 	what 	the 	volunteer 	had 	started 	and 	cleaning 	up
afterward. 	These 	factors 	prevented 	the 	teachers 	from planning
the 	instructional 	day 	around 	the 	volunteers.
Of 	equal 	importance was 	the 	parents' 	lack of 	training 	and
experience 	in comparison to 	the 	aides. 	They could not work 	as
independently of 	the 	teacher 	as 	the 	aides 	could 	and 	required
more 	orientation 	and 	instruction 	on 	how 	to 	facilitate 	the
instructional 	program. 	Partly as 	a 	result 	of 	this 	lack of
training, 	and 	also due to parent volunteers' 	unwillingness 	or
inability to 	discipline children of 	other 	parents, 	the 	teachers
found 	themselves 	having 	to 	do 	increased work 	in 	the 	areas 	of
reinforcement, 	monitoring 	students 	for 	completion of work, 	and
follow-up 	for 	those 	students who 	refused 	to 	heed 	the
volunteers' 	instructions.
The parents' 	role 	in 	record-keeping 	and grading 	student
work was 	severely 	limited. 	For 	reasons 	of 	confidentiality, 	the
teachers were 	unable 	to 	assign 	them the duties 	of 	grading
papers 	and 	entering 	grades 	in 	cards 	that went 	into 	each child's
cumulative folder. 	For 	the most part, 	the parents' 	function
was 	limited 	to 	attempting 	to work one-on-one with 	children 	and
attempting 	to 	have 	them complete 	follow-up 	assignments.
Because 	of 	the difficulty 	involved, 	parents were not 	utilized
to 	perform 	such 	functions 	as 	retrieving 	instructional 	materials
from the 	learning 	specialists 	and were 	not 	asked 	to 	call 	other
18

parents 	for 	purposes 	such 	as 	scheduling 	conferences 	and
bringing 	in materials 	students 	forgot 	at 	home. 	Only 	in one 	or
two 	isolated 	instances were 	parents 	able 	to 	help 	teachers
maintain 	and update bulletin boards. 	In 	actuality, 	the
teachers' 	time 	and effort 	in recruiting, 	training, 	and
coordinating 	volunteers' 	activities 	consumed 	as much or more
time 	than 	that which was 	saved 	by having 	the 	volunteer
service. 	The benefit 	to 	students 	of more one-to-one contact
and 	the 	benefit 	to 	parents 	in understanding 	of 	their 	children's
formal 	education process, 	however, 	was 	sufficient to maintain
the District's 	desire 	to 	continue utilizing 	parent 	volunteers.
There 	is 	evidence 	to 	indicate 	that 	the 	loss 	of 	aide 	time
was 	accompanied 	by 	another 	potential 	impact 	on 	teachers 	- 	on
evaluations 	- 	even 	though no 	actual 	impact was 	shown.
Specifically, 	the District 	has 	its-own 	set 	of 	criteria 	or
"benchmarks" which it uses to gauge students' 	progress.
Teachers 	are 	evaluated 	in part 	on 	the degree 	to which 	their
students 	have 	achieved those benchmarks. 	McCarthy, 	also 	a
former 	teacher who 	had 	experience working with 	a 	three-hour
aide 	and without 	a 	three-hour 	aide, 	acknowledged 	that, 	based on
his 	experience, 	having 	an aide would have 	a 	tendency to 	assist
in the 	achievement 	of 	the District's 	benchmarks 	as 	compared
7
with not 	having 	an 	aide.
7The 	parties' 	pertinent 	collective 	bargaining 	agreement
does 	not 	contain 	language 	governing 	the 	specific matters 	at
issue 	herein.
19

III. 	DISCUSSION
An 	employer's 	unilateral 	change 	in 	terms 	and 	conditions 	of
employment within the 	scope of 	representation 	is, 	absent 	a
valid defense, 	a 	per 	se 	refusal 	to negotiate pursuant 	to 	the
mandate 	enunciated 	in EERA 	sections 	3543.3 	and 	3543.5. 	Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51; 	San
Mateo 	County Community College 	District 	(1979) 	PERB 	Decision
No. 	94. 	Charging 	Party correctly cites 	in 	its 	brief Oakland
Unified School District 	(1985) 	PERB Decision No. 	540, 	et 	al.,
for 	the 	proposition 	that 	an employer 	has 	an obligation 	to 	give
an 	exclusive 	representative 	notice 	and 	an 	opportunity 	to
bargain 	over 	the 	negotiable 	effects 	of 	an otherwise
non-negotiable 	decision.
Normally, 	it 	is within management's 	sole prerogative to
determine 	the minimum number 	of 	employees 	to 	be 	hired 	at 	each
job 	site. 	Mt. 	Diablo Unified School District 	(1983) 	PERB
Decision No. 	373. 	However, 	when the subject does not merely
involve 	setting 	the minimum number 	of 	employees, 	but 	is 	related
to other 	terms 	and conditions 	of 	employment, 	such as workload,
hours, 	or wages, 	it 	is within the scope of 	representation and
cannot 	be 	altered without 	notice 	to 	the 	exclusive
representative 	and 	an opportunity to 	bargain. 	Ibid.. 	and 	State
of California 	(Department 	of Transportation) 	(1983) 	PERB
Decision No. 	361-S. 	Staffing 	ratio of 	nurses 	per 	school 	and/or
per student 	is such a subject. 	Mt. 	Diablo, 	supra. 	The method
20

of 	staffing may 	also 	be 	subject 	to 	negotiations 	prior 	to 	a
change 	if 	it 	affects 	other 	terms 	and 	conditions 	of 	employment.
State of California, 	supra. 	Staffing policies 	that 	are 	aimed,
at 	least 	in part, 	at regulating 	"employees' 	workloads" 	- the
amount 	of 	labor 	for which employees will 	be contractually
obligated - 	are 	also 	subject 	to 	negotiation prior 	to 	a 	change.
Davis 	Joint Unified 	School 	District 	(1984) 	PERB Decision
No. 393.
Merely because 	a 	change 	in 	a 	negotiable 	subject 	results
favorably as 	to 	some employees 	does 	not 	change 	its 	unlawful
nature. 	Indeed, 	unilateral 	increases 	in such things 	as wages
and 	benefits 	have 	historically been 	found 	to 	be unlawful. 	See
Morris, 	The Developing Labor Law, 	Second edition, 	Bureau of
National Affairs, 	Inc. 	(1983), pp. 	563-564; NLRB v. Fitzgerald
Mills 	(2nd Cir. 	1963) 	313 F.2d 260 	[52 LRRM 2174]; 	Colson
Equipment. Inc. 	(1981) 	257 NLRB No. 	15.8
In the case at hand, 	the District, 	through its 	acceptance
of 	Keith McCarthy's 	recommendations 	delineated 	in LaVerne
Carlson's memorandum of August 	2, 	1985, 	reached 	a 	firm decision
on 	the 	allocation 	of 	instructional 	aide 	services 	to 	the
teachers. 	Such 	a decision had 	the 	foreseeable 	impact 	of
8The 	construction of 	provisions 	of 	the National 	Labor
Relations Act as amended, 	29 U.S.C. 	151, 	et seq., 	is useful
guidance 	in 	interpreting 	parallel 	provisions 	of 	the EERA. 	See
San Diego Teachers Association v. 	Superior Court 	(1979) 	12
Cal.3d 	1, 	12-13; 	Firefighters Union v. 	City 	of Vallejo 	(1974)
12 Cal.3d 608, 	616.
21

lengthening 	the workday of 	those 	teachers 	who 	faced 	a 	partial
or 	total 	loss 	of 	aide 	services. 	One could not 	seriously deny
the 	fact 	that during 	the 	1984-85 	school year, 	teachers
typically worked 	on 	their 	own 	time 	to 	complete 	their 	duties,
even with the previous 	ratio 	of 	aides 	per 	teacher. 	Principal
Kiefer's 	testimony 	adds 	support 	to 	this 	conclusion.
Furthermore, 	once 	the District decided 	to 	carry out 	the
aide 	reallocation plan, 	it 	had 	a duty to 	give notice 	and 	an
opportunity 	to 	bargain 	to 	the Union 	regarding 	those 	foreseeable
effects. 	Mt. 	Diablo Unified School District 	(1983) 	PERB
Decision No. 	373; 	Newark Unified School District 	(1982) 	PERB
Decision No. 	225; 	citing 	San Mateo County Community College
District, 	supra, 	at pp. 	14-17. 	The District failed to meet
- -
this 	obligation 	even 	after 	the 	foreseeable 	effects 	became
reality 	at 	the 	beginning 	of 	the 	1985-86 	school 	year.
The 	Charging 	Party 	established 	that 	the 	aide 	reallocation
resulted 	in 	a 	substantial 	change 	in enumerated 	items within 	the
scope of 	representation, 	namely, 	hours of work. 	It 	also
resulted, 	in some cases, 	in the practical elimination of break
or 	rest 	periods 	and 	the duty-free 	lunch period. 	In 	addition,
the workload which was 	expected 	to 	be done 	by 	the 	teachers
during 	the 	instructional 	day was 	increased 	due 	to 	the 	shifting
of 	responsibilities 	to 	the 	teachers when 	the 	aides were
removed. 	Finally, 	the 	reallocation had 	at 	least 	a potential
affect on the teachers' 	tenure or 	job security, 	inasmuch as 	it
22

made 	it more difficult 	for many employees 	to 	have 	their
students 	achieve 	District 	performance 	expectations 	or
benchmarks. 	By the 	above conduct, 	the Respondent violated EERA
section 3543.5(c) 	and, 	derivatively, 	3543.5(a) 	and (b). 	See
Oakland Unified School District 	(1983) 	PERB Decision No. 	367,
at 	pp. 	22 	and 	San Francisco 	Community College District 	(1979)
PERB Decision No. 	105.
During 	the 	unfair 	practice 	hearing 	and 	in 	its 	post-hearing
brief, 	Respondent 	raised 	several 	contentions 	as 	its defense.
It posits 	that, 	because the 	site councils were 	responsible 	for
recommending 	the 	prioritization of 	aide usage, 	leading 	to
adverse 	effects 	on 	some employees, 	the District 	never made 	any
decision to 	reduce 	aide 	services 	per 	teacher, 	and cannot 	be
held 	accountable 	therefor. 	It 	has 	also 	asserted 	that 	there was
never 	a 	change 	in policy because 	there was 	no 	showing 	of 	a
stable 	status 	quo 	from which 	a 	change 	in 	terms 	and 	conditions
of 	employment 	could 	be measured. 	It 	offered 	the 	related
argument 	that 	there was 	no 	change 	in 	1985-86 	because 	the 	total
number 	of 	instructional 	aides 	in 	the District 	stayed 	the 	same
or 	grew 	slightly. 	Respondent 	produced 	some 	testimony 	in
support 	of 	contentions 	that 	appear 	to 	relate to 	a waiver 	(by
contract 	and/or 	inaction) 	of 	the Union's 	right 	to 	bargain.
Finally, 	although 	it 	failed 	to 	present 	evidence 	at 	the hearing
on its 	affirmative defense, 	the District 	included, 	in 	its
Answer 	to 	the Complaint, 	an 	allegation 	that 	the Charge was 	not
timely 	filed 	(EERA 	section 3541.5(a)).
23

The 	District's 	first 	contention 	is 	rejected 	because 	the
site councils 	acted 	as 	its 	agents. 	It 	is 	settled 	law that 	an
employer may be 	held 	responsible 	for 	acts 	of 	even 	a
rank-and-file employee, 	acting 	as 	its 	agent where: 	the employer
instigated, 	encouraged, 	ratified, 	or condoned 	such activity;
where 	the 	employee 	had 	actual 	or 	apparent 	authority to 	act 	for
his/her 	principal; 	where 	the employer 	held him/her 	out 	to 	other
employees 	as 	being 	"clothed with 	supervisory 	authority," 	and
where 	other 	employees 	could 	reasonably 	believe 	that 	he/she was
speaking 	and 	acting 	on 	behalf 	of 	management. 	Moreland
Elementary School 	District 	(1982) 	PERB Decision No. 	227 citing
Rexart Color Chemical Co. 	(1979) 	246 NLRB No. 	40 	and NLRB v.
American Thread Co. 	(1953) 	204 F.2d 161 	[32 LRRM 2044]; 	Los
Angeles 	Community College District 	(1982) 	PERB Decision No.
252; 	and Amerace Corporation. 	Esna Division 	(1976) 	225 NLRB No.
159, 	at pp. 	1096.
The 	site councils, 	composed of 	administrators,
rank-and-file employees, 	and 	segments 	of 	the community,
recommended 	plans 	for 	school 	improvement 	and 	spending 	of 	SIP
moneys. 	The District's 	school board 	is 	not bound to 	accept
those 	plans 	and 	recommendations 	and may 	send 	them back 	to 	the
councils 	for modification. 	Without 	school board 	approval, 	the
site 	council's 	recommendations 	are meaningless 	and 	cannot 	be
implemented. 	No 	SIP 	funds 	can be 	expended without 	board
approval. 	Although 	not 	bound 	to 	accept 	the 	site 	council's
24

recommendations, 	Principal 	Kiefer 	testified that 	the District's
policy 	is 	to 	leave 	the 	decision on how to 	prioritize 	aide
resources 	entirely to 	school 	site 	councils. 	McCarthy testified
that, 	with 	respect 	to 	the 	reduction 	in the 	ratio 	of 	aides 	to
teachers, 	the 	site 	councils 	recommended 	realignment 	and 	the
District 	"put 	the 	recommendation 	into 	force." 	By these 	acts,
the District 	authorized 	the councils 	to 	act 	on 	its 	behalf. 	To
this 	degree 	the 	District 	cannot 	disclaim 	responsibility 	for 	its
decision to 	defer 	entirely to 	the councils.
Notwithstanding whether 	the 	site 	councils 	are 	legally
"agents" 	of 	the District, 	evidence 	abounds 	from which to
conclude 	that 	the change 	in teachers' 	hours 	resulting 	from the
reduction of 	aide 	services was 	directly connected 	to District
action and, 	in a 	sense, 	its 	failure to 	act. 	In addition to 	the
fact 	that 	the District 	is 	not 	bound by 	site 	council
recommendations, 	it 	is 	also not 	required 	to 	fund 	aides
exclusively with SIP money. 	Indeed, 	in the 	1986-87 	school
year, 	the District 	has 	undertaken to 	fund 	its 	aides with only
30% from SIP funds, 	10% from its general 	funds, 	and the
remainder 	from 	state 	lottery 	revenues.
Secondly, 	McCarthy's 	testimony 	indicated 	that 	the
administration has 	a 	great 	deal 	of 	discretion 	in 	shifting 	SIP
budget 	figures 	before 	and 	after 	their 	submission 	to 	the 	state.
It 	is within its discretion, 	for example, 	to determine what
amount 	to 	allocate 	to 	overhead. 	Additionally, 	once 	SIP 	funds
25
'

are 	received, 	the 	administrators 	allocate 	the 	amounts 	as 	they
see 	fit, 	attempting 	to 	approximate 	the 	recommendations 	of 	the
site 	councils, 	but 	not 	strictly bound by them. 	Even within 	the
school 	sites, 	the principals 	have discretion over 	aide
allocation, 	as 	exemplified by the case of Elsinore School,
wherein 	Principal 	Kiefer 	decided 	to 	take 	away 	aide 	services
from one 	teacher weeks 	after 	the 	beginning 	of 	the 	school 	year
in order 	to 	provide 	some 	aide 	service 	to 	newly-hired 	teachers
covering 	additional 	classes 	opened 	because 	of 	enrollment
increases.
The 	District's 	related 	assertion 	that 	changes 	in 	teachers'
hours 	(in 	1985-86) 	did not 	result 	from any 	"District" 	decision
does 	not 	support 	a 	conclusion 	that 	it 	did not 	violate 	the
EERA. 	An employer's 	decision not 	to 	act 	can 	result 	in 	adverse
consequences 	to 	its 	employees' 	hours 	or working 	conditions 	just
as 	surely as 	can 	a decision to 	act 	affirmatively. 	See, 	e.g.,
San Joaquin County Employees Ass'n. 	v. 	City of 	Stockton 	(1984)
161 Cal.App.3d 813; 	207 Cal.Rptr. 	876 	(employer 	is 	required
under Meyer-Mi lias-Brown Act 	(Govt. 	Code sec. 	3500, 	et seq.) 	to
maintain 	the 	status 	quo 	in 	terms 	of 	an expired 	labor 	agreement
by 	paying 	any 	increased 	insurance 	premiums 	required 	to 	provide
the previous 	level of 	insurance coverage 	to employees). 	While
the District 	could 	have 	chosen 	to 	hire 	any number 	of 	aides 	as
it 	saw fit, 	it had the 	reciprocal duty, 	and ability, 	to ensure
that 	an 	action 	in 	that 	regard did not 	impact 	negotiable 	terms
26

of employment 	- 	in this 	case, 	working 	hours 	- 	and/or 	to 	give
the 	employee's 	Union the 	opportunity 	to 	negotiate 	in 	order 	to
offset 	any 	adverse 	impact.
Various 	options were 	available to 	the District. 	It could
have used the 	SIP moneys 	it 	allocated 	for 	"overhead" 	to 	hire 	at
least 	an 	additional 	nine 	aides 	to 	offset 	the 	impact 	of
enrollment growth. 	It 	could have used 	its 	general 	fund, 	as 	it
did 	in 	1986-87, 	to 	allocate 	aides 	in grades which the 	site
councils decided were not priorities. 	Alternatively, 	it 	could
have 	negotiated with 	the Union 	for 	offsets 	- 	e.g., 	added
vacation or 	leave credits, 	time off, 	increased wages, 	etc. 	-
to 	alleviate 	the 	impact 	of 	an extended day on 	those 	teachers
who were 	faced with a 	reduction 	in aide 	services. 	It 	is 	not
necessary to 	outline herein 	all 	the 	possibilities 	available 	to
the District.
Yet, 	as McCarthy testified, 	"the only District decision"
that was 	made was 	"to 	live within 	the 	funding 	provided 	by 	the
State's 	SIP" 	Program. 	In so doing, 	the District chose to 	allow
its 	teachers 	to 	bear 	the 	brunt 	of 	increased enrollment 	and 	of
by-products 	of 	the actions, 	however well-meaning, 	of 	the site
councils 	and 	school 	principals. 	The District 	had 	it within 	its
power 	to maintain the teachers' 	hours 	at 	least 	at 	the 	1984-85
level, 	yet failed to do so.
For these same 	reasons, 	the Employer's 	contention that 	it
should 	not 	be 	held 	responsible 	for 	the 	change 	because 	there was
27

no decrease 	in the total 	number of 	instructional 	aides, 	must be
rejected. 	The 	central 	issue herein 	is 	not merely a 	change 	in
the number 	of 	aides, 	but 	the change 	in the number of working
hours 	resulting 	from management's 	actions 	(and 	failures 	to 	act)
in 	the 	face 	of 	increased 	enrollment 	and 	aide 	reallocation.
For 	similar 	considerations, 	the District's 	argument 	that
there was 	no 	showing of 	a change 	in the 	"status 	quo" 	lacks
merit. 	In essence, 	the District's contention is 	that 	the
changes 	in the 	ratio of 	aides 	to 	teachers were part of 	a
"dynamic 	status 	quo" 	fluctuating with 	enrollment 	growth,
availability of 	funding, 	and 	shifting 	priorities 	of 	the 	site
councils. 	The 	"dynamic 	status 	quo" 	defense excuses 	alleged
unilateral 	changes 	only where 	the 	changes 	are 	automatic 	and
where 	the employer has 	no 	discretion 	in the matter. 	NLRB v.
Ralph Printing 	& Lithographing Co. 	(8th Cir. 	1970) 	433 	F.2d
1058 	[75 LRRM 2267]; 	NLRB v. 	Southern Coach & Body Co. 	(5th.
Cir. 	1964) 	336 F.2d 214 	[57 LRRM 2102]; 	NLRB v. 	Katz 	(1962) 	369
U.S. 	736 	[50 LRRM 2177]; 	and Davis Unified School District, 	et
al. 	(1980) 	PERB Decision No. 	116. 	Thus, 	automatic wage
increases 	that 	have 	been 	firmly set 	as 	to 	regularity 	and
amount, 	and 	by announced employer 	policy, 	have been held not 	to
violate 	the duty to 	bargain. 	Id.
-
None of 	these prerequisites 	are present 	herein. 	As 	already
noted, 	the District 	had 	considerable discretion 	over 	the 	level
and distribution of 	aide 	services, 	over 	their 	funding, 	over
28

whether 	to 	accept 	recommended plans 	of 	the 	site 	councils, 	over
the method of 	implementation of 	school 	improvement 	plans, 	and
over 	the 	length of 	the 	teachers' 	workday. 	To 	claim that 	the
changes 	in teachers' 	hours 	in 	1985-86 were 	caused by external
forces 	beyond 	the District's 	discretion 	and control 	is 	to
ignore 	the weight 	of 	the evidence 	to 	the contrary.
The 	Respondent 	also 	failed 	to 	carry 	its 	burden of
establishing waiver. 	PERB has 	held that 	a waiver 	of 	an
exclusive 	representative's 	EERA 	rights 	to 	notice 	and 	an
opportunity 	to 	bargain must 	be 	"intentionally 	relinquished 	in
clear 	and unmistakable 	terms" 	in order 	to 	be upheld. 	Davis
Unified School District, 	et al., 	supra at p. 	17.
The 	only evidence 	adduced 	by 	the Respondent 	is 	about 	a
"possible grievance," 	ultimately 	settled 	in February 	1986, 	that
did 	not 	revolve 	around 	the 	level 	or 	amount 	of 	aide 	services 	per
teacher, 	but 	on what 	kinds 	of 	services 	the 	aides 	could 	perform
- 	e.g., 	correction of 	student work, 	assistance 	in classroom
preparation, 	etc. 	Similarly, 	the parties' 	1985-86 collective
bargaining 	agreement 	contains 	neither 	language 	indicative 	of 	a
waiver, 	nor 	a 	zipper clause. 	That 	instrument was 	executed
sometime 	after 	the 	teachers' 	workday was 	affected 	by the
changes in aide allocations.1
9 The 	contract 	contains 	provisions 	regarding 	the 	teachers'
reporting 	times 	which 	have 	not 	varied 	significantly 	over
previous 	requirements. 	There 	is 	also 	language 	reflecting 	an
increase 	in 	instructional minutes 	(15 mins.) 	due to 	Senate Bill
29

Neither 	has 	the 	employer 	sufficiently 	supported with
convincing 	evidence 	its 	contention 	of 	a 	"waiver 	by 	inaction."
McCarthy's 	unspecific 	testimony that 	he 	is 	aware 	of
previously-filed 	grievances 	regarding 	the 	lack 	of 	aide 	services
for 	some 	teachers 	and that 	prior 	redistributions 	of 	aide
services 	have 	been 	"observed" 	by 	the Association without 	filing
a demand 	to 	bargain, 	cannot 	support 	a 	conclusion that 	the Union
clearly 	and unmistakably waived 	its 	rights. 	This 	vague 	and
unspecific 	(as 	to dates, 	individuals 	and circumstances)
testimony 	is 	especially 	inadequate 	given 	the Union's 	previous
Unfair 	Practice 	Charge 	over 	a 	nearly 	identical 	issue 	in 	1983
(LA-CE-1827).
Finally, 	the District 	presented no 	evidence 	to 	support 	the
Untimeliness 	pleading 	in 	its 	Answer. 	The 	only evidence
relating 	to 	that 	issue, 	elicited 	for 	unrelated 	reasons 	by both
parties, 	was 	that 	the 	teachers 	first 	found 	out 	about 	the 	aide
service 	reductions 	at 	the beginning 	of 	the 	1985-86 	school year
(September 	1985) 	at 	a preschool meeting. 	There 	is 	no 	evidence
that 	the District 	ever 	gave 	formal 	notice 	to 	any official 	Union
representative. 	Indeed, 	McCarthy testified that 	it 	is 	"not 	the
813 	and 	a 	1% 	salary raise 	in exchange 	for 	that 	increase.
Finally, 	there 	is 	contingency 	language 	indicating 	a general
increase 	in the 	salaries 	of 	all 	teachers 	tied 	to 	the 	level 	of
District 	growth. 	None of 	these 	provisions 	were 	shown 	to 	have
been 	connected 	in 	any way with the 	changes 	in hours 	at 	issue
herein. 	No 	evidence of 	bargaining 	history 	in 	support 	of 	a
waiver 	theory was 	presented 	by the 	Respondent.
30

practice 	of 	the 	District 	to 	notice 	the 	union when
redistribution of 	aide 	services 	is 	going 	to occur." 	It 	cannot
therefore 	be 	determined when 	the Union 	received 	actual 	or
constructive notice of 	the change 	in teachers' 	hours 	occasioned
10	10by the 	redistribution of 	aide 	resources.
. : '. .
IV. 	CONCLUSION
For 	all 	of 	the 	foregoing 	reasons, 	it 	is determined 	that,
through 	its 	actions 	in enforcing 	the 	plan 	regarding
reallocation 	of 	instructional 	aide 	services 	during 	the 	1985-86
school 	year, 	without 	giving 	notice 	and 	an opportunity to
bargain over 	its 	effects 	to 	the Union, 	the District violated
EERA sections 3543.5(c), 	(b), and (a).
V. 	REMEDY
The PERB 	is 	empowered 	to 	issue 	a 	decision 	and 	order
directing 	an 	offending 	party 	to 	take 	such 	affirmative 	action 	as
will 	effectuate 	the policies 	of 	the EERA. 	Government 	Code
section 3541.5(c). 	Accordingly, 	the Respondent will be ordered
to 	cease 	and 	desist 	from failing 	or 	refusing 	to 	give 	notice 	and
an opportunity to 	negotiate 	to 	the Union 	over 	the 	impact 	of 	its
decisions on teachers' 	terms 	of employment. 	In addition,
because 	the 	employer's 	conduct 	lengthened 	the workday 	of 	unit
members without 	compensation, 	it 	is 	appropriate to order 	the
10Even 	if 	the Union were deemed 	to 	have had constructive
notice 	as 	of 	the date of 	the preschool meeting 	(September 	3 	or
4, 	1985), 	the Charge was 	filed within six months 	of 	that event
(March 3, 	1986).
31

District 	to 	make whole 	each 	teacher whose workday was 	increased
as 	a 	result 	of 	the 	reduced 	level 	of 	aide 	services 	in 	1985-86
and 	the 	increased workload 	resulting 	therefrom. 	Such 	relief
shall 	include 	back pay together with 	interest 	thereon 	at 	10
percent 	per 	annum.
It 	is 	also 	appropriate 	that 	the District 	be 	required 	to
post 	a 	notice 	incorporating 	the terms 	of 	the order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	Employer
indicating 	that 	it will 	comply with the 	terms 	thereof. 	The
notice 	shall not be reduced 	in size, 	defaced, 	altered or
covered 	by 	any material. 	Posting 	such 	a 	notice will 	provide
employees with 	information 	that 	the 	employer 	has 	acted 	in 	an
unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and desist 	from
this 	activity. 	The notice effectuates 	the 	purposes 	of 	the Act
that 	employees 	be 	informed 	of 	the 	resolution of 	the 	controversy
and will 	announce 	the Employer's 	readiness 	to 	comply with 	the
ordered 	remedy. 	See Placerville Union 	School 	District 	(1978)
PERB Decision No. 	69. 	In Pandol 	and Sons v. 	Agricultural 	Labor
Relations Bd. 	(1979) 	98 Cal.App.3d 580, 	587, 	the California
District 	Court 	of Appeals 	approved 	a 	similar 	posting
requirement. 	See 	also NLRB v. 	Express 	Publishing Co. 	(1941)
312 U.S. 426 	[8 LRRM 415].
VI. 	PROPOSED ORDER
Upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case 	and 	pursuant 	to 	EERA 	section
32

3541.5(c), 	it 	is hereby ORDERED that the District, 	its
governing 	board 	and 	its 	representatives/agents 	shall:
A. 	CEASE AND 	DESIST 	FROM:
Unilaterally changing 	the hours 	of 	employment, 	including
the 	length of 	the teachers' 	workday, 	without 	first negotiating
with 	the Elsinore Valley Education Association, 	CTA/NEA.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
(1) 	Make whole 	each 	teacher whose workday was 	increased 	as
a 	result 	of 	the 	reduced 	level 	of 	instructional 	aide 	services 	in
academic 	year 	1985-86 	and 	for 	the 	increased workload 	resulting
therefrom. 	Such 	relief 	shall 	include 	back pay 	together with
interest 	thereon 	at 	10 	percent 	per 	annum.
(2) 	Sign 	and post 	copies 	of 	the 	attached Notice marked
"Appendix" 	in conspicuous 	places where notices 	to 	employees 	are
customarily placed 	at 	its 	headquarters 	office 	and 	at 	each 	of
its 	school 	sites 	and 	all 	other work 	locations 	for 	thirty 	(30)
consecutive workdays. 	Copies 	of 	this Notice, 	after being duly
signed 	by the 	authorized 	agent 	of 	the District, 	shall 	be 	posted
within ten 	(10) 	workdays 	from service of 	the 	final 	decision 	in
this matter. 	Reasonable 	steps 	shall 	be 	taken to 	insure 	that
the notice 	is 	not 	reduced 	in size, 	altered, 	defaced or covered
by 	any 	other 	materials.
(3) 	Upon issuance of 	a 	final decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	this 	Order 	to
33

the 	Los 	Angeles 	Regional 	Director 	of 	the 	Public Employment
Relations 	Board 	in 	accordance with his 	instructions.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final unless 	a 	party files 	a 	statement 	of 	exceptions
with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento
within 20 	days 	of 	service of 	this 	Decision. 	In 	accordance with
PERB Regulations, 	the 	statement 	of 	exceptions 	should 	identify
by page 	citation or 	exhibit 	number 	the 	portions 	of 	the 	record,
if 	any, 	relied upon for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
the 	close of 	business 	(5:00 	p.m.) 	on 	the 	last day set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express United 	States mail, 	postmarked not 	later 	than 	the 	last
day 	set 	for 	filing 	. . . " 	See 	California 	Administrative 	Code,
title 8, 	part 	III, 	section 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply. 	Any statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany each 	copy 	served 	on 	a 	party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	part 	III,
sections 32300, 	32305 and 32140.
Dated: 	January 28, 	1987
MANUEL M. 	MELGOZA
Administrative 	Law Judge
34