Compton Community College District (PERB 0798E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COMPTON 	COMMUNITY 	COLLEGE
FEDERATION OF EMPLOYEES, 	AFL-CIO,
Charging 	Party,
v.
COMPTON COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Case Nos. 	LA-CE-2272
LA-CE-2273
PERB Decision No.798
March 22, 	1990
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Appearances: 	Lawrence Rosenzweig, 	Attorney, 	for Compton
Community College Federation of Employees, 	AFL-CIO; 	Jones 	&
Matson by Stephen K. 	Matson, 	Attorney, 	for Compton Community
College 	District.
Before: 	Shank, 	Camilli and Cunningham, 	Members.
DECISION
CUNNINGHAM, 	Member: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the Compton Community College 	District 	(District) 	to 	the 	attached
proposed decision of 	a PERB administrative 	law judge 	(ALJ). 	The
ALJ held that the District violated section 3543.5(a), 	(b) 	and
(c) 	of the Educational Employment Relations Act 	(EERA)1 when it
1
EERA 	is 	codified at Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code. 	Government Code 	section 	3543.5 	pertains
to unfair practice 	charges 	against 	an employer and provides, 	in
relevant part:
It 	shall 	be unlawful 	for a public 	school
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of 	rights
(
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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.
unilaterally 	adopted 	a 	student 	grievance 	policy 	and 	calendars 	for
short-term 	and/or 	Saturday 	classes 	for 	the 	fall 	and 	spring 	of 	the
1985-86 	school year. 	The District's 	exceptions pertain only to
Case No. 	LA-CE-2272 	in which the ALJ 	found that the District's
adoption and 	implementation of 	the 	student 	grievance policy
constituted 	an unlawful 	unilateral 	change.
We 	have 	reviewed the record 	in this 	case 	in 	its 	entirety,
including the proposed decision, 	the District's 	exceptions, 	and
the 	response 	by 	the 	Compton Community College 	Federation of
Employees, 	AFL-CIO 	(Federation). 	We find the ALJ's 	findings 	of
fact 	to 	be 	free 	of prejudicial 	error and 	adopt 	them as 	our own.
Likewise, 	with one 	exception and one 	clarification as 	noted
below, 	we adopt 	the ALJ's 	conclusions 	of 	law and we 	affirm her
proposed 	finding 	that 	the 	District 	made 	unlawful 	unilateral
changes 	as 	charged by the Federation.
DISCUSSION
The 	District has 	raised 	several 	exceptions 	to 	the proposed
decision. 	In large part, 	the arguments 	raised by the District
on appeal 	are the 	same ones which were made below, 	and are
fully addressed 	in the ALJ's proposed decision. 	We 	find 	these
arguments 	to be without merit 	for the 	reasons 	contained 	in the
proposed decision, 	and, 	thus, 	find it unnecessary to comment
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further on these items. 	We do, 	however, 	find it necessary to
briefly clarify a portion of 	the ALJ's 	analysis, 	and we also
disagree with a 	legal conclusion drawn by the ALJ, 	as 	discussed
below.
As pointed out 	in the proposed decision, 	the Federation
contends 	in this 	case that the 	student grievance policy 	is
negotiable under any one of three theories. 	One of 	these
theories 	is 	that the policy 	is 	a procedure 	for the evaluation
of 	certificated employees 	and, 	therefore, 	an enumerated 	subject
of bargaining pursuant to 	section 3543.2(a)2 of EERA. 	The ALJ
concluded that the 	student grievance policy, 	while not a
conventional 	evaluation procedure, 	does 	indeed 	satisfy 	that
purpose 	in that 	it 	sets 	up 	a procedure whereby an employee's
performance 	in a particular 	situation 	is 	evaluated. 	We 	agree
with this 	conclusion, 	although 	it 	should be 	noted 	that we base
this 	finding 	on the policy's 	requirement 	that 	student 	complaints
and/or 	administrative 	determinations 	resulting 	from 	student
complaints 	are placed in the personnel 	file of 	the 	employee
charged. 	Since 	it may be 	safely assumed 	that 	teacher 	evaluation
2EERA section 3543.2 provides, 	in pertinent part:
(a) 	The 	scope of representation shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
of 	employment. 	"Terms 	and conditions 	of
employment" mean . 	. 	. transfer and
reassignment policies, 	. 	. 	. procedures to be
used for the evaluation of employees, 	. 	. 	.
All 	matters 	not 	specifically enumerated 	are
reserved 	to 	the public 	school 	employer 	and
may not be 	a 	subject of meeting and
negotiating 	. . . .
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procedures 	include a review of 	those 	complaints, 	along with other
material 	in the 	file pertinent to performance, 	we hold that the
particular 	student 	grievance policy at 	issue 	is 	a 	subject 	that
falls within the 	scope 	of 	representation. 	(Jefferson School
District 	(1980) 	PERB Decision No. 	133.) 	Moreover, 	we do not
adopt the ALJ's 	statement that this 	is 	a 	"secondary" 	evaluation
procedure. 	Section 3543.2(a) 	only provides 	that procedures 	for
evaluation are 	negotiable and makes 	no mention of 	a 	lesser
category of 	evaluations. 	On the record before us, 	this policy
appears 	to be 	an evaluation procedure within the meaning of
section 3543.2(a), 	because it requires placement of various
materials 	into District personnel 	records. 	The record does 	not
provide 	sufficient 	information to 	allow us 	to 	speculate 	as 	to 	the
importance 	that will 	ultimately be 	accorded to 	this 	material 	in
the overall 	District evaluation scheme. 	Therefore, 	we do not
find the ALJ's 	categorization to be warranted 	in this 	instance.
Another of 	the 	Federation's 	theories 	for the 	negotiability
of 	the 	student 	grievance policy 	is 	that 	said policy 	encompasses
discipline and is, 	therefore, 	subject to bargaining. 	The
ALJ 	finds 	that 	the 	student 	grievance policy does 	encompass
discipline, 	but only informal 	discipline or adverse personnel
actions 	as 	opposed to 	formal discipline. 	The District takes
exception to 	this 	portion of 	the proposed decision 	on 	the 	ground
that 	the 	language of the 	student grievance policy, 	on its 	face,
clearly 	states 	that 	the policy 	is 	not a disciplinary procedure
and, 	additionally, 	there is 	no basis 	for the ALJ's 	conclusion
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that 	the policy allows 	for 	"informal" 	discipline. 	We 	find that
the 	District's 	exception 	regarding 	the 	disciplinary 	issue 	is
meritorious 	in that 	it 	is 	unclear 	from the 	evidence 	submitted
by 	the parties 	that 	the policy would 	result 	in any 	form 	of
disciplinary 	action being taken against 	an employee. 	On 	its
face, 	the policy does not appear to authorize any remedies which
we would 	find disciplinary 	in nature. 	Accordingly, 	we do 	not
adopt this portion of the ALJ's 	analysis. 	Our disagreement
with the ALJ on this 	issue, 	however, 	does 	not affect the result
reached 	in this 	case, 	since this was 	only one of 	three theories
offered 	in 	support 	of 	the 	negotiability 	of 	the 	student 	grievance
policy.
In 	summary, 	we 	affirm the ALJ's 	proposed decision 	finding
that the 	District violated EERA section 	3543.5(c) 	and 	(b) 	in Case
Nos. 	LA-CE-2272 	and LA-CE-2273. 	We do not 	find that 	independent
violations 	of 	section 3543.5(a) 	have been established 	in either
case; 	thus, 	we reverse the proposed decision with respect to this
matter, 	and we 	find 	it appropriate to dismiss 	the portions 	of 	the
complaints 	alleging 	(a) 	violations 	consistent with the Board's
decision 	in Tahoe-Truckee 	Unified 	School 	District 	(1988) 	PERB
Decision No. 	668.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law, 	and the entire record in this 	case, 	and pursuant to the
Educational Employment Relations Act 	(Act) 	section 3541.5(c), 	it
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is 	hereby ORDERED 	that 	the 	Compton Community College 	District
(District) 	and its representative. s 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to 	meet and negotiate 	in good 	faith with
the Compton Community College Federation of 	Employees, 	AFL-CIO
(Federation) 	on a 	student grievance policy, 	a matter within the
scope 	of 	representation, 	by unilaterally 	adopting 	such a policy;
2. 	Refusing 	to meet 	and negotiate 	in good 	faith with
the 	Federation on the 	calendar 	for 	intersession and 	Saturday
classes, 	a matter within the scope of representation, 	by
unilaterally 	adopting 	calendars 	for 	short-term 	and 	Saturday
classes 	for the 	fall 	and 	spring of the 	1985-86 	school 	year; 	and
3. 	Denying the 	Federation 	its 	right 	to represent unit
members 	in negotiations 	conducted 	in good 	faith.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Immediately upon service of a final decision 	in
this 	matter, 	rescind the 	student grievance policy unilaterally
adopted by the District on October 22, 	1985.
2. 	Within thirty-five 	(35) 	days 	following the date
the Decision is 	no 	longer 	subject to reconsideration, 	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.
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3. 	Written notification of 	the actions 	taken to
comply with this 	Order 	shall 	be made to 	the 	Los Angeles 	Regional
Director of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with 	her 	instructions.
Members 	Shank and Camilli 	joined 	in this 	Decision.
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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 Nos. 	LA-CE-2272 	and
LA-CE-2273, 	Compton Community College 	Federation of Employees,
AFL-CIO v. 	Compton Community College District, 	in which all
parties 	had the right to participate, 	it has been found that the
Compton Community College 	District 	(District) 	violated 	Government
Code section 3543.5(b) 	and 	(c).
As 	a result of this 	conduct, 	we have been ordered to post
this 	notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and 	negotiate 	in good 	faith with
the Compton Community College 	Federation of 	Employees, 	AFL-CIO
(Federation) 	on a 	student grievance policy, 	a matter within the
scope 	of 	representation, 	by unilaterally 	adopting 	such a policy;
2. 	Refusing to meet and 	negotiate 	in good 	faith with
the 	Federation 	on the 	calendar 	for 	intersession and 	Saturday
classes, 	a matter within the scope of representation, 	by
unilaterally 	adopting 	calendars 	for 	short-term 	and 	Saturday
classes 	for the 	fall 	and 	spring of 	the 	1985-86 	school year; 	and
3. 	Denying the 	Federation its 	right to 	represent unit
members 	in negotiations 	conducted 	in good 	faith.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Immediately upon service of 	a 	final 	decision in
this 	matter, 	rescind the 	student 	grievance policy unilaterally
adopted by the District on October 22, 	1985.
Dated: 	COMPTON 	COMMUNITY 	COLLEGE 	DISTRICT
By
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE OF 	POSTING AND
MUST NOT BE 	REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COMPTON 	COMMUNITY 	COLLEGE 	FEDERATION
OF EMPLOYEES, 	AFL-CIO,
Charging 	Party,
v.
COMPTON COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Unfair 	Practice
Case Nos. 	LA-CE-2272
LA-CE-2273
PROPOSED 	DECISION
(3/10/87)
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Appearances; 	Lawrence Rosenzweig, 	Attorney 	for Compton
Community College Federation of Employees, 	AFL-CIO; 	Jones 	&
Matson by Urrea C. 	Jones, 	Jr., 	Attorney for Compton Community
College 	District.
Before: 	Barbara E. 	Miller, 	Administrative Law Judge
I. 	PROCEDURAL HISTORY
On October 	31, 	1985, 	the Compton Community College
Federation of 	Employees, 	AFL-CIO 	(hereinafter 	Charging 	Party or
Union)1 filed Unfair 	Practice Case No. 	LA-CE-2272 	against 	the
Compton 	Community College 	District 	(hereinafter 	Respondent 	or
District) 	alleging 	that 	the District unilaterally 	adopted 	and
implemented 	a 	student 	grievance 	policy 	and procedure 	in
violation 	of 	the Educational 	Employment 	Relations 	Act
(hereinafter EERA or Act).2 On November 	1, 	1985, 	the Union
lAt 	t h e 	time 	t h e 	Charge 	was 	f i l e d 	t h e 	Compton 	Community
C o l l e g e 	F e d e r a t i o n 	of 	Employees 	went 	by 	t h e 	name 	of 	Compton
Community 	C o l l e g e 	F e d e r a t i o n 	of 	T e a c h e r s .
2 The 	E d u c a t i o n a l 	Employment 	R e l a t i o n s 	Act 	is 	c o d i f i e d
b e g i n n i n g 	at 	Government 	Code 	s e c t i o n 	3540 	et 	s e q . 	Unless
otherwise indicated, 	all statutory references are to the
Government Code.
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.
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Government 	Code 	section 	3543.5 	pertains 	to 	unfair 	practice
charges 	against 	an employer 	and provides, 	in relevant 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
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.
filed Unfair 	Practice Case No. 	LA-CE-2273 	against 	the District
alleging 	that 	the 	District 	violated 	the 	EERA 	by unilaterally
adopting 	a 	calendar 	for 	short-term or 	intersession 	classes 	for
the 	fall 	semester 	of 	the 	1985-86 	school year.
Pursuant 	to 	the Regulations 	of 	the 	Public Employment
Relations 	Board 	(hereinafter PERB), 	each charge was 	assigned 	to
a 	Regional 	Attorney 	from the Office of 	the General 	Counsel 	of
the 	PERB.3 A Complaint 	in 	each case 	issued 	on
February 11, 	1986.4 On February 27, 	1986, 	the District 	filed
its Answers. 	Each Answer denies 	the material 	allegations 	in
3PERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	Part 	III, 	beginning at 	section
32100.
4 The 	undersigned 	amended 	the 	Complaint 	in 	Case
No. 	LA-CE-2273 	prior to taking evidence on July 17, 	1986.
Originally, 	the Charge/Complaint 	alleged 	that 	the District 	had
violated 	the Act when 	it 	unilaterally promulgated 	a 	short-term
or 	intersession calendar 	for 	the 	fall 	of 	1985. 	The 	amendment
repeats 	the 	allegations 	with 	respect 	to 	a 	short-term or
intersession 	calendar 	for 	the 	spring 	of 	1986.
2

the Complaint 	and 	sets 	forth various 	affirmative 	defenses.
The 	cases 	were 	consolidated 	for 	purposes 	of 	informal
conference 	before 	an Administrative Law Judge 	of 	the 	PERB.
When 	the 	parties were unable to 	resolve 	their disputes, 	the 	two
cases 	were 	consolidated with 	six 	other 	cases 	involving 	the 	same
parties. 	After 	a pre-hearing conference on July 14, 	1986, 	and
a 	formal 	hearing on July 16 	and July 	17, 	1986, 	the two 	cases
under 	discussion 	herein 	remained 	consolidated with 	one 	another
but were 	severed 	from the 	remaining 	six 	cases. 	The 	parties
were 	given 	an 	opportunity 	to 	file 	post-hearing 	briefs 	and 	on
October 	15, 	1986, 	Case Nos. 	LA-CE-2272 	and LA-CE-2273 were
submitted 	for 	proposed 	decision.
II. 	FINDINGS OF FACT
A. 	Case No. 	LA-CE-2272
The 	Evolution 	of 	Management's 	Student 	Grievance 	Policy 	and
Procedure
Early 	in 	1985, 	the District 	determined 	that 	it 	should
revise 	the 	existing 	policy 	pertaining 	to 	student 	complaints
against 	members 	of 	its 	certificated 	and 	classified 	staff.
Under 	the direction of Douglas Robinson, 	Assistant
Superintendent 	and Dean of 	Student Affairs, 	the District
"solicited 	input 	from various 	colleges 	up-and-down 	the 	State 	of
California." 	The 	District wanted 	to 	review various 	student
grievance 	procedures 	and 	incorporate 	the 	better 	parts 	of 	those
procedures 	into 	a 	comprehensive plan. 	The proposed 	student
grievance policy was 	ready on June 	7, 	1985, 	at which time 	a
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copy was 	sent 	to 	the President 	of 	the Academic 	Senate, 	the
President 	of 	the Associated 	Student 	Body, 	administrative 	staff
members, 	and the 	leaders 	of 	the exclusive 	representatives 	of
the District's 	employees, 	Darwin Thorpe 	for 	certificated
employees 	and Bruce McManus 	for 	classified personnel. 5 In 	a
cover memorandum signed 	by Robinson, 	the 	addressees were 	told
that 	Robinson would 	appreciate 	it 	if 	they 	reviewed 	the 	document
and 	provided 	him with comments 	and 	recommended 	changes. 	He
asked 	for their 	input by Monday, 	July 	15, 	1985.
Although 	the Union 	did 	not 	respond 	to 	Robinson's 	request
for 	input, 	some 	individuals did, 	some modifications were made,
and 	the matter was 	submitted 	to 	the District's 	Board 	of
Trustees 	for 	a 	first 	reading on July 	16, 	1985.6	6 Thereafter,
the 	record 	is 	quite unclear 	as 	to 	the manner 	in which 	the
policy was 	revised. 	Apparently, 	based on 	recommended 	changes,
a 	second 	draft 	of 	the 	student 	grievance 	policy was 	generated.
In a memorandum dated October 	16, 	1985, 	from Robinson to Edison
O. 	Jackson, 	the President/Superintendent of 	the District,
Robinson 	states 	that 	a 	second draft was 	sent 	to 	the Union prior
to the Trustee's 	second 	reading. 	However, 	in his 	testimony,
5Many 	aspects 	of 	the 	student 	grievance 	policy pertain 	to
both 	certificated 	and 	classified 	employees. 	The 	focus 	herein
will 	be 	on 	certificated 	personnel.
6Darwin 	Thorpe 	indicated 	that 	the Union did 	not 	respond
to 	Robinson's 	communication because Robinson was 	not 	part 	of
the 	District's 	negotiating 	team 	and 	the 	parties 	had 	agreed 	to
deal with the 	issue 	of 	a 	student 	grievance policy 	at 	the
bargaining 	table.
4

Robinson 	indicated 	there was 	no 	second 	reading. 	Moreover, 	his
testimony generally 	suggests 	that 	only 	the 	final 	version 	of 	the
proposed 	student 	grievance 	policy was 	submitted 	to 	the 	Union
prior 	to 	its 	final 	adoption by the Trustees.
In 	any event, 	the 	record 	fails 	to disclose 	precisely what
happened with 	respect 	to 	the 	student 	grievance 	policy 	after 	its
first 	reading before the Trustees 	on July 	16, 	1985. 	The 	record
does 	reflect 	that on August 	2, 	1985, 	a 	second draft of 	the
policy was 	submitted 	to 	Superintendent 	Jackson 	for 	his 	review.
Thereafter, 	the 	student 	grievance 	policy was 	before 	the
Trustees 	on 	two 	separate 	occasions 	in 	September.
On September 	3, 	1985, 	the 	record 	reflects 	that 	the Trustees
were 	considering 	a 	grievance 	filed 	by 	a 	student 	against 	a
teacher. 	At 	that 	time, 	representatives 	from the NAACP urged
the 	Board 	to 	move 	ahead with 	adoption of 	a more 	rigorous 	and
meaningful 	student 	grievance 	policy. 	The matter was 	again
before the Board of 	Trustees 	on September 	17, 	1985. 	The 	record
does 	not 	reflect 	whether 	or 	how 	the matter 	appeared 	on 	the
Board's 	agenda, 	or what 	kind 	of 	proceeding was 	conducted.7	7
The 	record does 	reflect 	that, 	as 	a 	result 	of discussions 	or 	a
"hearing" 	on September 	17, 	the 	Board 	issued 	an order 	requiring
certain modifications 	in 	the 	student 	grievance 	policy 	and
procedure. 	Included 	in 	the 	three-page 	order 	from the 	Board was
7NO 	agendas were 	introduced 	into 	evidence. 	Even 	if 	the
agendas 	included 	information 	about 	the 	student 	grievance
policy, 	there 	is 	no 	evidence 	the Union 	received 	appropriate
notice.
55

the 	following 	directive:
Prior 	to 	the 	submission of 	the 	revised
student 	grievance 	policy 	and 	procedure 	to
the Board of Trustees 	for 	approval, 	the
proposed 	modified 	policy 	shall 	be 	submitted
to 	the Academic Senate, 	the 	recognized
classified 	employee 	representatives, 	the
recognized 	certificated 	employee
representatives, 	and 	the Associated Student
Body Council 	for 	input, 	review and comment.
Apparently, 	pursuant to that directive, 	on October 3, 	1985,
Robinson 	sent 	a 	copy of 	the 	final 	draft 	of 	the 	student
grievance 	policy 	and 	procedures 	to 	Darwin Thorpe 	and 	Bruce
McManus. 	The cover 	memorandum stated:
The 	subject 	policy will 	be 	presented 	to 	the
Board 	of 	Trustees 	on Tuesday,
October 22, 	1985. 	If you have any
recommended changes, 	please 	submit 	them to
this 	office on or 	before October 	15.
In 	response 	to Robinson's memorandum and 	the 	final 	draft 	of
the 	student 	grievance policy and procedure, 	on
October 	14, 	1985, 	Thorpe 	sent 	the 	following memorandum to
Robinson:
Unclear 	and 	internally 	contradictory
statements 	of 	the 	above 	proposed 	policy
render it, 	at this time, 	unworkable, 	and
probably unlawful. 	While 	the district's
attempts 	to derive 	a workable policy are
laudable, 	the 	absence 	of 	genuine committee
development 	of 	the 	policy make 	explanations
and criticisms 	difficult 	if 	not 	impossible.
To 	fully consider 	the 	policy, 	and 	the
necessary 	in-service 	training 	implied 	by 	the
newly 	heightened 	availability 	and 	visibility
of 	such a potentially forthright document, 	a
meeting 	should 	be 	held 	between 	the
interested 	leaders 	as 	I 	had 	presumed would
occur 	pursuant 	to 	our 	discussions 	on 	this
66

issue 	at 	the bargaining 	table. 	This 	could
very well 	facilitate 	the 	production of 	a
legal 	procedure with which 	all 	parties 	could
live, 	and which would promote 	a minimum
amount 	of 	resort 	to 	such 	a 	future district
policy.
The thrust 	of 	Thorpe's 	memorandum was 	clear. 	He wanted
consideration 	of 	the 	proposed 	student 	grievance 	policy deferred
until 	certain 	issues were discussed 	either 	in committee 	or 	at
the 	bargaining 	table.
Urrea C. 	Jones, 	the District's 	counsel 	and chief
negotiator, 	also wanted 	consideration of 	the 	student 	grievance
policy taken off 	the Board 	agenda 	for October 	22, 	1985. 	In
furtherance of that goal, 	on October 21, 	1985, 	Jones called
Robinson 	and 	asked 	him to 	remove 	consideration 	of 	the 	policy
from the 	Board's 	agenda. 	Robinson was 	quite opposed 	to 	taking
the matter 	off 	the 	agenda. 	He 	testified 	that 	he 	believed 	that
ample 	time 	for 	input 	had 	been 	provided 	to 	employee
organizations. 	Moreover, 	as will be discussed at pages 	10-12,
infra., 	Robinson believed 	that 	a 	potentially volatile 	situation
existed. 	He was under the 	impression that 	students, 	members 	of
the community, 	and outside organizers, 	might engage 	in violence
if 	the District 	did 	not move 	quickly to 	adopt 	a 	student
grievance 	policy. 	Based 	on his 	reading 	of 	the 	situation,
Robinson went 	to 	the 	superintendent 	and 	urged 	him 	to 	keep 	the
matter 	on the 	agenda. 	The matter was 	not 	removed 	and 	on
October 22, 	1985, 	the Trustees 	adopted a 	student grievance
policy 	and 	procedure.
7

The 	Student 	Grievance 	Policy 	at 	the 	Bargaining 	Table
On May 7, 	1985, 	the 	representatives 	of 	the 	faculty
bargaining 	unit 	and 	the 	District's 	negotiating 	team met 	to 	set
forth 	and discuss 	those matters which were 	of 	concern 	for 	the
upcoming 	negotiations 	on 	a 	successor 	agreement. 	According 	to
Thorpe, 	the Union had heard 	rumors 	to 	the effect 	that 	the
District 	was 	giving 	consideration 	to 	changing 	the 	student
grievance policy. 	Accordingly, 	the Union identified 	as 	a 	topic
for 	bargaining 	"guidelines 	for 	accusations 	against 	faculty by
students."
On July 9, 	1985, 	Joan Clinton, 	the Associate Dean of
Liberal Arts 	and Developmental 	Studies 	and 	a member 	of 	the
District's 	bargaining 	team, 	sent 	a memo 	to 	the Union 	setting
forth 	those 	concerns 	identified 	at 	the meeting 	of May 7. 	The
list 	included 	a 	reference 	to 	the Union's 	concern 	about 	a
student 	grievance 	policy. 	Notwithstanding 	the 	identification
of 	the 	student 	grievance policy as 	a Union concern, 	the
bargaining 	team did 	not 	exchange 	proposals 	and 	the 	matter was
not discussed 	at 	the 	table until August 	20, 	1985.
. . . .
Prior 	to 	that 	time, 	however, 	the Union had 	received 	a copy
of 	management's 	draft 	of 	a 	student 	grievance policy 	from
Robinson. 	That 	copy had 	been 	sent 	to 	the Union's 	attorney 	for
his 	review 	and, 	when 	the 	attorney confirmed Thorpe's 	belief
that 	the matter was 	negotiable, 	Thorpe 	approached Clinton. 	In
his 	testimony, 	Thorpe 	claimed 	that 	the District 	frequently
circumvented 	the 	Union 	and 	avoided 	bargaining 	over 	matters
8

within 	the 	scope 	of 	representation. 	Thorpe 	testified 	he was
concerned 	the 	District 	might 	be 	attempting 	the 	same manuever
with 	respect 	to 	the 	student 	grievance policy; 	he was 	suspicious
because Robinson, 	not 	the bargaining 	team, 	was 	circulating 	the
draft 	policy.
Thorpe 	telephoned 	Clinton 	to 	remind 	her 	that 	the matter 	was
negotiable 	because 	it 	had 	an 	impact 	on 	faculty. 	Thorpe 	believed
- -
the 	telephone 	conversation 	took place 	on August 	8. 	Clinton
believed 	the 	telephone 	conversation 	took place 	on August 	19,
1985. 	Clinton believed, 	but was 	not 	certain, 	she told Thorpe
the 	student 	grievance policy was 	not 	a 	negotiable 	item. 	Thorpe
denies 	such 	a 	statement 	being made. 	In the opinion of 	the
undersigned, 	it 	is 	unnecessary to 	resolve either 	of 	these
conflicts 	in 	the 	testimony 	in order 	to 	properly 	adjudicate 	the
instant dispute. 	What 	is 	important 	and what no 	one disputes 	is
that 	the Union made 	a demand 	to 	bargain.
On August 	20, 	1985, 	at 	a 	regularly scheduled negotiation
session, 	the matter 	of 	the 	student 	grievance policy 	and
procedure was 	discussed. 	Although witnesses 	recalled 	no
substantive discussion, 	there was 	discussion of 	referring 	the
matter 	to 	committee. 	Thorpe 	testified 	that 	the 	committee
suggestion was 	made 	because 	formal 	negotiations 	on 	other
matters 	were 	bogged 	down. 	Clinton 	intimated 	that 	the matter
was 	referred 	to 	committee 	because 	it was 	not 	a 	negotiable 	item
but 	again 	she 	could 	not 	testify with 	certainty whether 	or 	not
that 	position was 	ever 	articulated 	by the District 	to 	the Union.
9

Clinton 	testified 	the matter 	of 	the 	student 	grievance
policy was 	discussed 	briefly 	at 	several 	other 	negotiating
sessions 	in August 	but 	there 	is 	no 	indication 	as 	to 	the 	content
of 	those discussions. 	Clinton 	further 	testified 	that 	her 	notes
from October 	14, 	1985, 	indicate that on that date 	the matter 	of
the 	student 	grievance 	policy 	and 	procedure was 	referred 	to
committee 	for 	consideration.
Thus, 	just 	as 	negotiations were 	about 	to get underway,
Robinson 	and 	the 	Board were 	preparing 	for 	formal 	action. 	In
order 	to make what was 	happening 	at 	the bargaining 	table
compatible with what was 	happening 	in Robinson's 	arena, 	Thorpe
wrote 	a memorandum to 	Robinson 	and 	approached Urrea 	Jones,
* 	urging 	him to 	have 	the matter 	of 	the 	student grievance policy
removed 	from the Trustee's 	October 	22 	agenda. 	Thorpe 	told
Jones 	that 	if 	the Trustees 	adopted the policy as 	scheduled, 	it
would be 	in violation of 	the EERA. 	On October 	21, 	Jones 	told
Thorpe 	that 	he 	had 	succeeded 	in having 	the matter 	removed 	from
the agenda. 	Subsequently, 	on October 	22, 	Jones called Thorpe
at 	home 	and 	said 	that 	the 	superintendent 	was 	going 	ahead with
the 	student 	grievance 	policy because 	of 	pressure 	from the
community; 	there was 	nothing 	that 	Jones 	could do.
Community 	Pressure
Throughout 	the 	hearing 	and 	in 	its 	post-hearing 	brief, 	the
District 	asserts 	that 	the 	student 	grievance 	policy was 	adopted
"to 	avert 	serious 	harm or 	disaster 	to 	the 	District."
Notwithstanding 	that 	rather 	strident 	assertion, 	the 	evidence
. ...
10

does 	not 	support 	a 	conclusion 	that 	disaster was 	imminent.
Sometime prior 	to 	the events 	described herein, 	several
students 	complained 	about 	racist 	or 	derogatory 	statements 	being
made by classroom instructors. 	The 	NAACP 	became 	involved 	and
urged 	the District 	to 	take 	action 	against 	those 	instructors.
Moreover, 	according 	to Douglas Robinson, 	students 	began
participating 	in activities 	in which, 	to his knowledge, 	they
had never 	participated before. 	For 	example, 	Robinson noticed
that 	students were 	asking 	to 	evaluate 	faculty members 	outside
the normal 	evaluation process. 	Students were urging 	other
students 	not 	to 	take 	classes 	from certain 	instructors 	and 	they
were 	requesting 	permission 	to 	distribute 	literature 	of 	a
derogatory nature 	about 	faculty members.
Robinson described other 	events 	as well. 	In the 	spring 	of
1985, 	there was 	a 	threat 	of 	bodily harm against 	one District
administrator, 	the President 	of 	the Board 	of Trustees 	decided
to order 	security guards 	at 	Board meetings, 	a 	lawsuit was
threatened 	against 	a 	faculty member, 	and 	there were 	angry
outbursts 	by 	the 	public 	demanding 	that 	certificated 	employees
be disciplined 	as 	a 	result 	of 	student 	complaints.
Nothing 	described 	by Robinson 	seemed 	beyond 	the 	scope 	of
what 	a 	public 	institution 	should 	be 	ready, 	willing 	and 	able 	to
address. 	Although 	an 	institution 	should 	not 	have 	to 	tolerate
threats of bodily harm to 	its 	employees, 	at Compton 	there had
been 	such 	threats 	in the 	spring 	but 	there were 	none 	in 	the
summer 	or 	in 	the 	fall 	when 	the 	student 	grievance 	policy was
11

actually adopted. 	Moreover, 	upon cross-examination, 	Robinson
admitted 	that 	much 	of 	the more 	strident 	rhetoric 	had 	come 	from
a particular 	faction, 	which historically has 	been 	known 	for 	its
fervor.8	8
The 	Student 	Grievance 	Policy 	and 	Procedure
The 	new 	student 	grievance 	procedure 	basically 	sets 	out 	the
procedures 	to 	be 	followed 	by District 	students 	when 	they have
complaints 	against members 	of 	the District 	staff. 	The
procedure provides, 	in relevant part, 	as follows:
A 	student 	may 	file 	a 	grievance 	under 	these
procedures when he or 	she believes 	that 	a
College 	decision 	or 	action 	has 	unlawfully
affected his or her 	status, 	rights 	or
privileges.
A 	student 	may 	also 	file 	a 	grievance under
these procedures 	for 	an 	alleged violation 	of
rights 	guaranteed under 	title 	IX of 	the
Higher Education 	amendments 	or 	[sic] 	1972,
title 7 of 	the Civil Rights Act of 	1964, 	as
amended, 	and Government Code 	section 	11135,
which provides:
"No 	person 	in the 	State of 	California 	shall,
on the 	basis 	of 	ethnic 	group 	identification,
religion, 	age, 	sex, color, 	or physical or
mental 	disability, 	be unlawfully denied 	the
benefits 	of, 	or 	be unlawfully subjected 	to
discrimination under 	any program or 	activity
that 	is 	funded directly by 	the 	State 	or
receives 	any 	financial 	assistance 	from 	the
State."
- . .
The 	student 	grievance 	policy establishes 	procedures 	for 	two
types 	of 	grievances 	- 	those 	relating 	to 	grades 	given 	to
students 	and 	those unrelated 	to 	grades.
8There 	is 	so 	little 	factual 	support 	for 	the District's
assertion of danger, 	it 	clearly fails 	to 	support 	the District's
defense 	that 	the 	policy was 	adopted 	out 	of 	business 	necessity.

With 	respect 	to grades, 	in conformance with the Education
Code, 	a 	grievance may only be 	filed 	to 	change 	the 	grade 	because
of mistake, 	fraud, 	bad faith, 	or 	incompetency. 	There seems no
dispute that, 	in the past, 	students could file grievances 	or
protests 	regarding 	grades 	received. 	One 	of 	the Union's
objections 	to 	the 	current 	procedure 	is 	the elaborate way 	in
which 	it 	involves 	counselors 	in the 	processing 	of 	student
grievances. 	According to Al Cherry, 	a counselor 	for the
District 	and 	a member of 	the bargaining unit, 	historically when
students 	approached him with 	a 	complaint 	about 	a 	grade 	given by
a particular 	instructor, 	he 	simply sent 	the 	student 	back to 	the
instructor 	or 	to 	the Director 	of 	Student Life	. : 	. 	Under 	the 	new
procedure, 	the counselor's 	role 	is more precisely defined. u
Section I.B. 	and I.C. 	provide, 	as 	follows:
B. 	The 	counselor 	shall 	advise 	the 	student
to 	discuss 	the 	grade 	complaint with the
faculty member 	involved 	and 	shall 	schedule
in writing 	an 	appointment with 	the 	faculty
member 	and 	student within 	five 	(5) 	days 	of
the date of 	the complaint. 	The
unavailability 	of 	the 	faculty member 	shall
extend 	the 	time 	period 	set 	forth 	herein.
The 	counselor 	shall 	attend 	the 	conference 	at
the 	student's 	request.
C. 	If 	the dispute 	is 	not 	resolved 	to 	the
satisfaction of 	the 	student 	during 	the
conference, 	the 	student 	shall 	return to his
or her 	counselor within 	five 	(5) 	days 	of 	the
conference with 	the 	faculty member 	and 	file
a written 	complaint. 	The counselor 	shall
9 The 	District 	suggested 	the 	counselor's 	role 	in 	grade
complaints 	was 	more 	structured 	than Cherry 	admitted. 	No
persuasive 	evidence was 	introduced 	to 	support 	that 	position,
however.
13

assist 	the 	student 	in writing 	the 	complaint,
if 	requested.
The Union 	established 	that 	the 	above-quoted 	provisions 	of 	the
student 	grievance 	policy change 	the 	job description 	or 	the
duties 	and 	responsibilities 	of 	the counselor. 	In the past,
counselors 	were 	not 	required 	to 	attend 	conferences 	between
students 	and 	teachers 	regarding 	grades 	and 	counselors 	were 	not
required 	to 	assist 	students 	in drafting 	grade 	complaints
against 	teachers. 	Whether 	or 	how much 	the 	new 	role 	for
counselors 	would 	alter 	the nature 	of 	their 	job 	or workload 	is
difficult 	to 	determine because 	it 	is 	contingent 	on the number
of 	grade 	complaints 	filed 	and 	the 	number 	of 	students who would
then 	request 	counselor 	involvement. 	No 	information on 	actual
or 	projected 	workload 	increases 	was 	provided 	during 	the 	course
of 	the hearing.
The 	procedures 	relating 	to 	grievances 	not 	pertaining 	to
grades 	are 	fairly elaborate. 	In general, 	the grievance must 	be
in writing 	and, 	at 	some point, 	the student must 	agree that 	the
concerned 	staff 	member may be 	given 	a 	copy of 	the 	grievance.
The Director 	of 	Student Life 	is 	empowered 	to 	conduct 	an
investigation, 	which 	is not described, 	and to preside over 	a
conference 	attended 	by the 	employee 	and 	the 	grievant. 	If 	the
matter 	is 	not 	resolved at 	that 	level, 	it 	is 	referred to 	the
area dean or 	administrator 	for 	another conference. 	Then, 	if
not 	resolved, 	the matter 	is 	sent 	to 	the 	superintendent. 	The
superintendent 	then conducts 	a 	conference 	and, 	if 	the matter 	is
14

not 	resolved, 	he/she 	issues 	an order 	to 	resolve 	the 	grievance.
That 	order may be 	appealed 	to 	the Board of 	Trustees, 	who 	then
meet with 	all 	concerned 	in executive 	session. 	At 	the 	final
level, 	the procedure provides 	that 	any party to 	the 	grievance
may 	submit 	evidence 	and 	argument 	to 	the Board 	of 	Trustees. 	The
Board 	is 	then given 	the 	power 	to 	reverse 	or 	sustain 	any or 	all
of 	the 	superintendent's 	rulings.
The 	procedure 	sets 	forth permissible 	types 	of 	relief which
may be 	ordered 	at 	any stage 	in 	the 	proceedings. 	The 	following
relief 	is 	allowed:
(a) 	Specific enforcement of, 	or adherence
to, 	the 	rule or 	regulation found to have
been violated 	by 	an 	employee 	to 	the
grievant's 	detriment.
(b) 	Removal or modification 	of 	disciplinary
sanctions 	imposed 	against 	the 	student 	by 	the
staff 	member.
(c) 	Such other 	actions 	as may be
appropriate under 	the circumstances, 	except
that 	no 	employee may be 	subjected 	to 	any
formal 	disciplinary 	action 	under 	the
procedures 	established 	by 	this 	policy.
Formal discipline of 	the employee 	is 	a
matter 	which 	is 	exclusively within 	the
prerogative 	of 	the 	college 	administration
and is, 	therefore, 	confined to the formal
procedures 	established 	by 	law 	for 	discipline
of 	community college 	employees. 	(Emphasis
added.)
Elsewhere, 	the 	policy again 	addresses 	disciplinary 	action 	and
provides, 	in relevant part, 	as follows:
Nothing 	contained 	in 	this 	policy 	shall 	be
construed 	to 	preclude 	the 	District 	from
undertaking 	disciplinary 	action 	against 	any
District 	employee 	in 	the manner 	prescribed
by 	law.
15

Thus, 	although utilization of 	the 	student 	grievance policy
itself 	cannot 	result 	in discipline 	of 	an employee 	as 	that 	term
is 	defined 	in the Education Code, 	there 	is 	nothing which
precludes 	other 	actions 	which might 	be 	perceived 	as 	employee
discipline 	as 	a 	result of 	findings 	made during 	the course of
the 	student 	grievance procedure.
B. 	Case No. 	LA-CE-2273
In this case, 	it 	is 	alleged that the District unilaterally
established 	the 	calendar 	for 	short-term 	and 	Saturday 	classes
during 	the 	fall 	and 	spring 	semesters 	of 	the 	1985-86 	school
year.10 The 	Complaint 	also 	alleges 	that 	the District
repudiated 	past 	practices 	and 	the 	collective 	bargaining
contract 	by 	establishing 	the 	calendar 	without 	first 	meeting
with 	instructional 	area 	representatives 	(IAR's) 	and without
first 	giving 	full-time 	faculty 	an 	opportunity 	to 	teach
short-term and 	Saturday classes 	on 	an 	overload 	basis.
The 	Collective 	Bargaining 	Agreement
The 	effective 	dates 	of 	the 	collective 	bargaining 	contract
between 	the 	District 	and 	the Union's 	certificated 	section 	are
July 1, 	1983, 	through June 30, 	1985.11	11 Numerous provisions
of 	that 	agreement 	address 	the duties 	and 	responsibilities 	of
the parties with respect 	to calendars 	and class 	offerings. 	For
10Throughout 	this 	proceeding, 	short-term 	and 	Saturday
classes were 	frequently 	referred 	to 	as 	intersession classes.
11The 	parties 	do 	not contend that 	the 	terms 	of 	a 	contract
related 	to 	calendar 	did 	not 	extend 	beyond 	the 	expiration 	date
of 	the contract.
16

example, 	Article 	IV sets 	forth the duties 	and 	responsibilities
of 	instructional 	area 	representatives 	and provides, 	in 	relevant
part, 	as follows:
It 	shall 	be 	the duty 	and 	responsibility of
each 	Instructional 	Area 	Representative 	(IAR)
to 	function 	in the 	following 	capacities:
1. 	Respond with 	recommendations 	to 	the
Associate 	Dean 	regarding 	scheduling 	times
and 	locations 	for 	class meetings 	of 	course
offerings 	in the 	instructional 	area;
2. 	Make 	recommendations 	to 	the Associate
Dean 	regarding 	assignments 	of 	full-time 	and
part-time 	instructors 	to 	courses 	offered 	in
the 	instructional 	area.
In the 	instant 	dispute, 	the Union 	alleges 	that 	the District
failed 	to 	properly consult with 	IAR's 	or 	to 	advise 	them of 	the
.proposed 	intersession calendars. 	Accordingly, 	the 	IAR's 	could
not 	carry out 	their 	duties 	as 	set 	forth 	in 	items 	1 	and 	2 	above.
Article XIII 	relates 	to 	the 	calendar 	and 	generally provides
as follows:
Work calendars 	shall 	be 	negotiated 	and 	such
negotiations 	shall 	take place 	no 	later 	than
thirty 	(30) 	calendar days 	before 	submission
to 	the Board of 	Trustees.
Finally, 	Article XII 	relates 	to workload 	and 	in 	a 	section
entitled Extra 	Pay Teaching Assignments, 	provides, 	in 	relevant
part, 	as follows:
Limits:
Extra 	pay teaching 	assignments 	over 	and
above 	the 	normal 	teaching 	load 	assignments
shall 	be 	limited 	to 	a maximum of 	six 	(6)
semester 	units 	per 	semester 	or 	summer
session unless 	prior 	approval 	is 	granted by
the Vice 	President 	of Academic Affairs.
17

Scheduling:
All 	full 	time 	faculty members 	shall 	have
their 	full-time 	contract 	load 	schedule 	set
before 	part-time 	instructors 	are 	employed.
After 	all 	full-time 	contract 	load 	schedules
have been 	set, 	first choice for each
remaining 	class 	shall 	be 	given 	to 	the
instructor 	with 	the 	most 	teaching 	experience
for 	that 	class within 	the 	past 	three years
in which 	a 	class was 	offered 	at Compton
Community College.
With 	respect 	to 	the District's 	obligation 	to 	negotiate 	the
calendar, 	the Union 	alleges 	that 	the obligation was 	breached 	in
the 	fall 	and 	spring of 	the 	1985-86 	school year. 	Management
does 	not 	deny that 	it 	failed 	to 	negotiate 	the 	starting 	and
ending 	time 	of 	the weekday 	intersession classes. 	The District
argues, 	however, 	that 	since 	such days were part of 	the 	regular
teaching 	calendar 	for 	the 	regular 	semester, 	new negotiations
were 	not 	required. 	The District 	does 	not 	respond 	to 	the
allegation 	that 	the 	starting 	and 	ending 	time were 	entirely new
workdays 	for 	those 	part-time 	instructors 	who were 	not 	teaching
in the 	regular 	semester. 	Part-time 	instructors 	are 	in the
collective 	bargaining 	unit.
Past 	Practice
The 	record 	reflects 	that 	prior 	to 	the 	1985-86 	school 	year
the 	District 	did 	conduct 	short-term 	and 	Saturday 	classes 	and
that 	the calendar 	for those classes 	and, 	accordingly, 	the
calendar 	for 	the 	class 	instructors, 	was 	negotiated with 	the
Union. 	Thorpe 	testified 	that 	in 	the 	1984-85 	school 	year 	the
parties 	negotiated 	and 	reached 	agreement 	for weekday 	and
18

Saturday classes 	for 	a 	fall 	and 	spring 	intersession. 	Thorpe's
testimony was 	supported 	by 	exhibits 	which 	reflected 	the
District's 	commitment 	to 	negotiate 	intersession calendars. 	In
describing 	the way 	in which 	the 	information was 	provided 	for
the 	1984-85 	school 	year 	and 	the nature 	of 	the 	negotiations,
Thorpe 	testified 	as 	follows:
In our 	negotiations 	on most 	of 	the
intersessions 	held 	at 	Compton College 	the
typical 	format was 	for 	the District 	to
notify 	the 	Union 	that 	we were 	requested 	to
negotiate 	a 	particular 	calendar 	and 	then
routinely, 	either 	the 	information 	such 	as
you 	see 	here was 	provided with 	a 	request 	or
we would 	call 	or write 	a memo 	requesting 	it
and we would be 	given 	a 	copy of 	the proposed
classes 	and 	sometimes 	teachers who might 	be
willing 	to 	teach these classes 	off 	campus 	or
on campus 	sites where 	they might 	be 	taught
merely 	as 	an 	information 	item so 	that we
could 	assess 	our 	own members 	and 	communicate
with 	our 	instructional 	area 	representatives
and 	then 	negotiate with 	the 	District 	and
sign off 	on 	an eventual 	calendar. 	This
represents 	that 	kind 	of 	information which we
used 	to 	routinely get.
In contrast, 	Thorpe 	testified 	that 	he 	learned of 	two
intersessions 	for 	the 	fall 	semester 	of 	the 	1985-86 	school 	year
in 	a 	completely different 	fashion. 	One 	intersession was
offered from September 23, 	1985, 	to January 24, 	1986. 	Thorpe
learned 	of 	those 	classes 	during 	a 	visit 	to 	the 	superintendent's
office 	on 	an entirely different matter. 	Thorpe 	expressed 	his
displeasure 	to 	the 	superintendent, 	indicated that 	the
unilateral 	promulgation of 	such a 	calendar was 	an unfair 	labor
practice, 	but 	advised the 	then-new superintendent 	that 	as 	a
19

goodwill 	gesture 	the Union would 	refrain 	from 	filing 	an 	unfair
practice 	charge. 12	12
Notwithstanding 	Thorpe's 	admonitions, 	sometime during 	the
last week of October 	1985, 	while Thorpe was visiting 	the
District's 	counseling 	area 	he 	noticed 	a 	computer 	printout 	for
an 	intersession calendar 	of 	classes 	to 	be 	given 	from
November 4, 	1985, 	through January 24, 	1986. 	The District
claims 	that 	the 	original 	short-term program which 	ran 	from
September 	23 	and 	the 	second 	program which 	began 	on November 	4
were 	not 	negotiated with 	the 	Union 	because 	neither 	program
involved 	Saturday classes. 	The District 	claims 	that 	the 	only
reason 	previous 	calendars 	had 	been negotiated was 	because 	they
involved Saturday classes 	and, 	in those 	instances, 	only the
Saturdays 	were 	negotiated.
The 	District 	also 	ran 	short-term 	and 	Saturday classes 	from
March 17, 	1986, 	through June 13, 	1986. 	There is no dispute
that 	there were 	no 	negotiations 	on 	the weekday class
offerings. 	With 	respect 	to 	Saturday classes, 	the parties 	had
negotiated 	and 	reached 	agreement 	that 	Saturday 	classes 	would
begin on March 22, 	and end on June 	7, 	with finals 	being 	given
on June 	14. 	Sometime during 	the 	fall 	semester, 	the District
notified 	the Union 	that 	it wanted 	to 	change 	the 	schedule 	for
the 	Saturday classes, 	never mentioning 	that weekday classes
1 2 In 	the 	post-hearing 	briefs, 	the District 	and 	the Union
assume this 	first 	fall 	intersession 	is 	at 	issue 	in this 	unfair
practice proceeding. 	It 	is not.
20

were 	being 	planned. 	The District met with 	the Union 	several
times, 	failed 	to 	reach 	agreement 	and 	then unilaterally changed
the 	Saturday 	calendar 	starting 	date 	from March 	22 	to March 	15.
The 	District's 	Position
The District did not 	always 	take the position 	it 	asserts 	in
this 	unfair 	practice proceeding. 	In the 	1984-85 	school year
when 	both 	short-term 	and 	Saturday 	class 	calendars 	were
negotiated, 	the 	District 	apparently 	recognized 	its 	obligation
to 	negotiate both. 	In a memorandum from Ida Frisby, 	a District
manager, 	to Clinton dated January 4, 	1985, 	Frisby attached the
•short-term calendar 	and 	asked 	to 	be 	notified 	of 	Clinton's 	plans
to 	comply with 	negotiating 	the work 	calendar 	as 	outlined 	in 	the
collective 	bargaining 	contract. 	Clinton 	in turn communicated
with 	the Union 	about 	negotiations 	for 	the 	calendar. 	Moreover,
when 	it was 	necessary to 	change 	the 	starting date 	for 	the
weekday classes, 	Clinton wrote 	to 	the Union 	and noted 	as
follows:
Please 	let 	me 	know when you 	and your 	team
wish 	to 	negotiate 	the 	short-term/Saturday
calendar, 1985.
Elsewhere 	in 	the 	memorandum Clinton 	specifically 	references 	the
change 	in the 	starting date 	for 	the weekday, 	not 	the 	Saturday,
calendar. 	Thus, 	based on the evidence 	presented by the Union
and the District, 	it 	is 	concluded that 	prior to 	the 	1985-86
school 	year, 	the 	District 	and 	the Union negotiated 	short-term
and 	Saturday 	calendars 	and 	that 	each 	side understood 	that 	such
. . ... '
21

negotiations were 	pursuant 	to 	the 	collective 	bargaining
agreement 	to negotiate 	such matters, 	notwithstanding 	any-
independent 	obligation which might 	exist 	under 	the 	EERA.
III. 	ISSUES
A. 	In case No. 	LA-CE-2272, 	did the District unlawfully
promulgate 	and 	implement 	the 	student 	grievance 	policy?
1. 	Is 	the 	student 	grievance policy a matter within
the 	scope of 	representation?
2. 	Did 	the Union waive 	its 	right 	to 	negotiate 	the
student 	grievance 	policy?
B. 	In Case No. 	LA-CE-2273, 	did the District establishment
of 	calendars 	for 	short-term 	and 	Saturday classes 	in 	the 	1985-86
school 	year 	violate 	the 	EERA?
IV. 	CONCLUSIONS OF LAW
Case No. 	LA-CE-2272 	- Student Grievance Policy
Ordinarily, 	when 	an employer unilaterally changes 	a matter
within the 	scope 	of 	representation, 	the employer 	commits 	a 	per
se violation of 	the EERA. 	Section 	3543.2 	of 	the EERA defines
the 	scope of 	representation and provides, 	in relevant part, 	as
follows:
(a) 	The 	scope of 	representation 	shall 	be
limited to matters 	relating 	to wages, 	hours
of 	employment, 	and other 	terms 	and
conditions 	of employment. 	"Terms 	and
conditions of employment" mean 	. 	. 	.
transfer and reassignment policies, 	. 	. 	.
procedures 	to 	be used 	for 	the 	evaluation of
employees, 	. 	. 	. All matters not
specifically enumerated 	are 	reserved 	to 	the
public 	school 	employer 	and may not 	be 	a
subject of meeting and negotiating, 	. 	. 	.
22

(b) 	Notwithstanding 	section 44944 	of 	the
Education Code, 	the public 	school 	employer
and 	the 	exclusive 	representative 	shall, 	upon
request 	of 	either 	party, 	meet 	and 	negotiate
regarding 	causes 	and 	procedures 	for
disciplinary action, 	other 	than dismissal,
including 	a 	suspension of 	pay for up 	to 	15
days, 	affecting certificated employees. 	If
the 	public 	school 	employer 	and 	the 	exclusive
representative 	do 	not 	reach mutual
agreement, 	then the provisions 	of 	section
44944 	of 	the Education Code 	shall 	apply.
A 	student 	grievance 	policy 	is 	not 	a 	specifically enumerated
subject 	in the definition of 	the 	scope of 	representation. 	The
PERB has, 	however, 	developed 	a 	test 	for determining whether 	or
not 	a matter 	falls within the 	scope 	of 	representation when 	it
is 	not 	specifically enumerated. 	That 	test, 	set 	forth 	in
Anaheim Union High School 	District 	(1981) 	PERB Decision No. 	177
and 	approved 	by 	the 	California 	Supreme 	Court 	in 	San Mateo 	City
School District v. 	P.E.R.B. 	(1983) 	33 Cal.3d 850, 	provides, 	in
relevant part, 	as follows:
[A] 	subject 	is 	negotiable even though not
specifically enumerated 	if 	(1) 	it 	is
logically 	and 	reasonably 	related 	to 	hours,
wages 	or 	an 	enumerated 	term 	and 	condition 	of
employment, 	(2) 	the subject 	is of such
concern 	to 	both management 	and 	employees
that 	conflict 	is 	likely to 	occur 	and 	the
mediatory 	influence 	of 	collective
negotiations 	is 	the 	appropriate means 	of
resolving the conflict 	and, 	(3) 	the
employer's 	obligation 	to 	negotiate would 	not
significantly 	abridge 	his 	freedom to
exercise 	those 	managerial 	prerogatives
(including 	matters 	of 	fundamental 	policy)
essential 	to 	the 	achievement 	of 	the District
mission.
Whether or 	not 	the Anaheim test 	is 	employed, 	the Charging
Party 	asserts 	that 	the 	District's 	student 	grievance 	policy 	is
23

-. ..
negotiable using 	any one of 	three 	approaches. 	First, 	the Union
maintains 	that 	the 	student 	grievance 	policy 	is 	a 	procedure 	for
the 	evaluation 	of 	certificated 	employees 	and 	therefore 	an
enumerated 	subject. 	Next, 	the Union asserts 	the policy 	is
negotiable pursuant 	to 	section 3543.2(b) 	because 	it 	concerns
causes 	and 	procedures 	for 	disciplinary action. 	Alternatively,
it 	is 	negotiable 	because matters 	relating 	to discipline
logically 	and 	reasonably 	relate 	to 	an enumerated 	subject.
Finally, 	it 	is 	alleged 	the policy is 	negotiable because 	it
effects 	the workload 	or 	hours 	of work of 	certificated
employees. 	Each contention with 	respect 	to 	negotiability will
be 	reviewed.
The 	Evaluation 	of 	Employees
Although 	the 	student 	grievance 	procedure 	is 	not 	described
as 	an evaluation procedure 	and 	is 	not 	a 	procedure 	for 	a
conventional 	"evaluation," 	it 	clearly satisfies 	that 	purpose.
The 	policy establishes 	the 	procedure 	for 	evaluating 	or 	judging
the employee's 	performance 	in 	a 	particular 	situation.
With 	respect 	to 	grade-related 	student 	grievances, 	the
policy 	sets 	forth 	the 	procedure whereby 	the 	administration 	can
determine whether 	or 	not 	a grade was 	issued 	as 	the 	result 	of 	a
mistake, 	bad 	faith, 	Incompetency or 	fraud on the part of 	the
teacher. 	The 	student 	grievance policy provides 	that 	any
decision which orders 	a 	grade change 	shall 	be entered 	into
District 	records. 	Presumably, 	a decision which 	found 	the
teacher 	not 	guilty of 	incompetency or 	fraud would 	not 	be
24

included 	in District 	records, 	but 	the policy is 	silent.
Whether 	a 	record 	is 	retained or 	not, 	the whole process
constitutes 	an 	evaluation 	of 	the 	teacher's 	performance 	and 	the
procedures 	for 	such 	an 	evaluation must 	be 	negotiated 	pursuant
to 	the EERA.
Similarly, 	other 	student 	grievances 	are 	subject 	to 	an
elaborate 	procedure which 	potentially 	results 	in 	the 	evaluation
of 	a 	faculty member 	at 	numerous 	administrative 	levels. 	The
procedures 	set 	forth 	in 	the 	student 	grievance 	policy provide
for 	student 	input 	and 	an 	administrative 	investigation 	of
employe
.
e 	conduct. 	Those 	procedures 	are 	not 	consistent with 	the
procedures 	for 	the 	student 	evaluation of 	faculty set 	forth 	in
the collective bargaining 	agreement. 	Accordingly, 	the 	student
grievance procedure 	can be 	considered 	an 	amendment 	to 	or 	a
change 	in the 	procedures 	for 	the 	evaluation of 	certificated
personnel 	in those 	instances when there 	is 	a complaint 	about
the performance of 	a 	particular 	certificated 	employee. 	Again,
although the evaluation 	is 	not 	the conventional 	evaluation, 	the
procedure 	for 	this 	"secondary" 	evaluation 	is 	not 	excluded 	from
the definition of 	the 	scope of 	representation. 	Accordingly,
when 	the 	District 	unilaterally 	promulgated 	and 	implemented 	the
student 	grievance 	policy without 	first 	negotiating 	with 	the
Union, 	it violated the EERA.
1 . .
The 	Student 	Grievance 	Policy 	as 	a 	Disciplinary Procedure
The 	Charging 	Party 	argues 	that 	the 	student 	grievance 	policy
is 	negotiable because 	it 	relates 	to 	the discipline 	of
25

employees, 	in both 	the certificated 	and classified 	service. 	In
response, 	the District points out that, 	on its 	face, 	the
student 	grievance 	policy provides 	that 	it 	does 	not 	encompass
formal 	discipline 	and 	that 	such discipline 	can 	only 	be 	imposed
in 	the manner 	provided 	by 	law. 	Neither 	party 	addresses 	the
issue which may be 	critical 	in determining 	whether 	or 	not 	the
student 	grievance policy 	is 	negotiable. 	What 	the 	parties
ignore 	is 	that 	the 	student 	grievance policy allows 	for
sanctions 	which 	are 	punitive 	but which may not 	be 	considered
disciplinary 	in 	the 	sense 	that 	term 	is 	used 	in 	the 	Education
Code 	or 	in 	the 	student 	grievance 	policy. 	As 	previously noted,
an employee 	can 	be 	ordered 	to 	comply with 	a 	particular 	District
regulation or 	subjected 	to 	other 	punitive 	actions 	as 	deemed
appropriate by the governing 	board. 	For 	example, 	an employee
might 	be 	prohibited 	from 	teaching 	certain 	classes 	or
participating 	in certain college events. 	Indeed, 	the 	student
grievance 	policy does 	not 	preclude 	an 	employee 	being 	ordered 	to
take 	some 	corrective 	action 	to 	remedy 	alleged wrongs. 	Any 	such
sanction might 	easily be 	considered 	an 	adverse 	personnel 	action
which 	is 	logically 	and 	reasonably 	related 	to 	the 	employee's
employment 	status 	or wages 	and hours.
The 	Respondent 	does 	not 	distinguish 	between 	formal
disciplinary 	actions 	described 	in 	the 	Education Code 	and 	those
disciplinary 	actions 	permissible 	under 	the 	student 	grievance
policy. 	Accordingly, 	the Respondent 	argues 	that 	no matter
pertaining 	to 	discipline 	is 	negotiable 	because 	the 	Education
26

Code 	supersedes 	the EERA. 	In other words, 	the Respondent
argues 	that 	even 	if 	the 	student 	grievance policy 	allows 	for
discipline, 	it 	is 	not 	negotiable because disciplinary matters
are 	exclusively covered 	by 	the 	Education Code.
In 	its 	supersession 	argument, 	the District 	relies 	heavily
on 	comments 	made 	by the 	Supreme Court 	in 	San Mateo 	City School
District, 	supra 	and by the Court 	of Appeal 	in United
Steelworkers 	of America v. 	The Board of 	Education 	(1984) 	162
Cal.App.3d 	823. 	In 	San Mateo 	the 	court 	noted 	that 	the EERA was
not 	intended 	to 	"replace or 	set 	aside" 	certain provisions 	of
the Education Code. 	Indeed, 	section 3540 	of 	the EERA was
designed 	to 	preclude 	contractual 	agreements 	which would 	preempt
certain 	statutory provisions, 	including, 	but not 	limited 	to,
certain 	provisions 	pertaining 	to 	the 	discipline 	of 	classified
employees. 	In Steelworkers. 	the Court of Appeal 	refused to
enforce 	a 	contractual 	provision which 	provided 	for 	the
arbitration of 	the discipline of 	a 	classified 	employee 	in 	a
non-merit 	school 	district. 	Th	- . 	e Court 	determined 	that 	the
parties 	had 	improperly 	negotiated 	away 	the 	exclusive 	authority
of 	the 	governing 	board 	to 	make 	determinations 	regarding 	the
causes 	for 	disciplinary 	action.
The 	Respondent's 	reliance 	upon 	San Mateo 	and 	Steelworkers
is 	misplaced.13 Neither 	case deals 	with 	adverse 	personnel
13 	since 	it 	is 	found 	that 	the court's decision 	in
Steelworkers 	does 	not 	relate 	to 	the 	issues 	raised 	herein 	and
does 	not 	preclude 	negotiations 	on 	the 	student 	grievance 	policy
to 	the 	extent 	it 	impacts 	on disciplinary 	actions which 	are 	not
. .
27

actions 	which 	are 	not 	defined 	as 	disciplinary pursuant 	to 	the
Education Code 	but which may be 	imposed 	pursuant 	to 	the 	student
grievance policy 	at 	issue 	herein. 	The Education Code does 	not
establish 	inflexible 	or 	immutable 	standards 	or 	procedures 	for
the 	informal 	discipline 	of 	either 	certificated 	or 	classified
employees 	of 	the Community College District. 	In this 	instance,
the District 	has 	unilaterally determined what 	type 	of
investigation to conduct, 	what materials 	to 	retain, 	whether 	and
what 	type of 	notice 	to provide 	to 	the 	accused employee, 	the
nature of 	the 	"hearing" 	to 	be 	afforded, 	and 	the designation of
the 	authorities 	to 	have 	final 	and 	binding 	authority with
respect 	to 	the 	imposition of 	sanctions.
Such matters 	are 	appropriately negotiated. 	Although 	the
Respondent 	correctly asserts 	that 	discipline 	is 	not 	an
enumerated 	subject, 	it 	is 	clearly negotiable based upon
application of 	the PERB's Anaheim test.14	14 Whether 	and 	how 	an
formal 	in nature, 	it 	is unnecessary to 	address 	the question of
whether 	the 	holding 	regarding 	negotiability 	in 	Steelworkers
would 	override 	Board 	precedent 	established 	in 	Healdsburg 	Union
High 	School 	District 	and 	Healdsburg 	Union 	School 	District/San
Mateo City School District 	(1984) 	PERB Decision No. 	375, 	where
the 	Board 	found 	that 	the Education Code did 	not 	preclude 	a
provision 	for 	the 	arbitration 	of 	discipline 	of 	classified
employees.
•^Section 3543.2(b) 	provides 	that 	the causes 	and
procedures 	for 	discipline 	of 	certificated personnel, 	short 	of
dismissal, 	are within the 	scope of 	representation. 	From its
language, 	the 	section applies 	to certificated personnel 	in
K-12. 	Although it may have been an oversight, 	the 	section does
not 	cover 	certificated 	employees 	of 	the 	community colleges 	and
discipline 	can 	not 	be 	found 	negotiable 	as 	an enumerated 	subject. .
28

employee 	is 	subjected 	to 	adverse 	personnel 	action 	impacts 	upon
that 	employee's 	status with the 	employer. 	Depending 	upon 	the
nature of 	the 	sanctions 	imposed, 	informal 	discipline might
directly 	impact 	upon wages 	and 	hours. 	The 	causes 	and
procedures 	for 	such discipline 	are 	a 	subject which 	is 	conducive
to 	being 	resolved 	through 	the mediatory 	influences 	of
collective negotiations. 	Finally, 	Anaheim is 	satisfied because
negotiations 	regarding 	discipline will 	not 	unduly 	infringe 	on
the 	employer's 	rights 	and 	obligations with 	respect 	to
fulfilling 	its 	mission. 	See Arvin Union 	School 	District 	(1983)
PERB Decision No. 	300; 	San Bernardino City Unified 	School
District 	(1982) 	PERB Decision No.. 255.
Increase 	In 	Counselor Workload
As 	a 	final 	argument 	in 	support 	of 	negotiability, 	the Union
contends 	that 	the 	student 	grievance 	policy changes 	the 	terms
and 	conditions 	of 	employment 	of 	counselors 	by adding 	a 	new duty
and 	responsibility to 	their 	job description, 	thereby 	increasing
their workload. 	Essentially, 	the Union maintains, 	the District
has 	created 	a 	new 	job 	responsibility 	and 	allocated 	that
responsibility 	to 	the 	already-existing 	classification 	of
counselor.
The 	District 	maintains 	that 	the 	student 	grievance 	policy
does 	not 	set 	forth 	any qualitatively different 	duties 	and
responsibilities 	for 	counselors. 	The District 	argues 	that
counselors 	have 	always 	assisted 	students 	in grade 	protests 	and,
accordingly, 	the 	student 	grievance 	policy has 	not 	resulted 	in
29

any actual 	change 	in job duties. 	Thus, 	the Respondent 	argues,
pursuant 	to Alum Rock Union 	Elementary 	School 	District 	(1983)
PERB Decision No. 	322, 	negotiations were not 	required.
Based upon 	the 	testimony of 	the witnesses 	and 	a 	review of
the 	student 	grievance policy, 	it 	appears 	to 	the undersigned
that 	there 	is 	some merit 	to 	arguments 	made 	by both 	the District
and 	the Union. 	Counselors 	are 	generally 	responsible 	for
ministering 	to 	certain student needs. 	Historically, 	counselors
had 	been 	recipients 	of 	student 	complaints 	about 	grades.
Whether 	formally or 	informally, 	the 	counselor 	ordinarily
referred 	the 	student 	back to 	the 	grading 	instructor 	or 	to 	an
-administrator 	at 	the college.
Nevertheless, 	I 	find 	the new role 	for 	the counselor
constituted 	a 	qualitative 	change 	and 	addition 	to 	his/her 	duties
and 	responsibilities. 	The 	counselor was 	no 	longer 	merely the
advisor, 	the District mandated that 	the counselor 	act 	as 	an
advocate 	as well. 	The counselor was 	required 	to 	attend
meetings with the 	student 	and 	to 	assist 	the 	student 	in 	the
preparation of 	his/her grievance. 	Pursuant 	to 	PERB precedent,
such 	a 	change 	in 	a 	job classification 	requires 	negotiations.
The 	policy 	is 	also negotiable because of 	its 	logical 	and
reasonable 	relationship 	to 	counselor 	hours. 	The 	student
grievance 	policy 	increases 	the 	number 	of 	set 	tasks 	the
counselor may have 	to 	perform with 	each 	student. 	The 	end
result 	is 	similar 	to 	that 	discussed 	by PERB 	in Davis 	Joint
Unified 	School 	District 	(1984) 	PERB Decision No. 	393. 	In
30

Davis, 	the question was whether 	the number 	of 	students 	assigned
to 	a 	counselor was 	negotiable. 	The Board noted:
Where, 	as here, 	the work to be performed is
in 	the 	nature 	of 	casework 	— 	that 	is, 	a 	set
of 	tasks, 	assigned by management, 	to be
performed 	on 	a 	student-by-student 	basis 	—
the 	relationship 	between 	the number 	of 	cases
ans 	the 	hours 	needed 	to 	complete 	the work 	is
reasonably and 	logically apparent. 	Id. 	at
16.
In the 	instant case, 	there 	is 	no 	reason to believe that 	the
number of 	students 	assigned 	to 	a 	counselor 	changed, 	but 	the
range of 	tasks 	per 	student 	increased. 	Like Davis 	the
relationship 	of 	the 	increase 	in tasks 	to 	the hours 	of work 	is
readily apparent 	and, 	absent 	a viable defense, 	the District
violated 	the 	EERA 	in 	failing 	to 	negotiate with 	the Union.
The Waiver 	Defense
The District 	argues 	that 	the Union 	failed 	to 	timely,
adequately, 	and 	in good 	faith, 	respond to notices 	from
management 	regarding 	the 	proposed 	student 	grievance 	policy.
Accordingly, 	the District 	argues 	that 	the Union waived 	its
right 	to 	object 	to 	the District's 	adoption 	of 	the 	policy on
October 22, 	1985.
In order 	to 	establish this 	defense, 	the PERB 	requires 	clear
and 	unmistakable 	evidence 	that 	an 	employee 	organization 	has
waived 	its 	statutory 	right 	to 	bargain 	about 	a 	specific
subject. 	Amador Valley Joint Union High 	School 	District 	(1978)
PERB Decision No. 	74; 	Los Angeles Community College District
(1982) 	PERB Decision No. 	252.
31

Attempting 	to meet 	that 	standard, 	the District 	points 	to
the 	communications 	from Douglas 	Robinson 	to 	the 	leaders 	of 	the
Union 	seeking 	input 	regarding 	management's 	proposed 	student
grievance 	policy 	and 	the Union's 	failure 	to 	respond 	to 	the
communication 	sent 	in June.
There 	is 	no dispute 	that 	the Union did not 	respond 	to
Robinson's 	first communication and, 	if 	a 	second was 	sent, 	the
Union again 	failed 	to 	respond. 	There 	is 	also 	no 	dispute 	that
the Union 	did 	respond 	to 	Robinson's 	communication 	in October
1985. 	In a memorandum dated October 	14, 	1985, 	Darwin Thorpe
briefly outlined 	some 	of 	the 	Union's 	concerns 	regarding 	the
proposed 	student 	grievance 	policy 	and urged 	that, the matter 	be
referred 	to 	committee 	for 	further 	discussions.
Based upon 	the 	evidence presented, 	the Union's 	failure 	to
respond 	to 	Robinson's 	communications 	cannot 	be 	considered 	a
basis 	for 	a 	finding 	that 	the Union waived 	its 	right 	to
negotiate 	the 	student 	grievance 	policy. 	Robinson was 	not
designated 	as 	a 	management 	negotiator 	and 	he did 	not 	invite
negotiations.15 Individuals 	who were designated 	as
management 	negotiators 	acknowledged 	on May 	7, 	and 	again by
memorandum on July 	7, 	1985, 	that 	the 	student grievance policy
was 	a 	concern to 	be discussed 	as 	the negotiating 	table.
15This 	case 	is 	not 	similar 	to Modesto 	City 	and 	High
School Districts 	(1986) 	PERB Decision No. 	566. 	In that case
the 	Board 	found waiver 	by 	inaction 	but 	the 	union 	refused 	to
respond 	to 	requests 	to negotiate made by members 	of
management's 	negotiating 	team.
32

Although 	the 	parties 	did 	not 	discuss 	issues 	concerning 	a
student 	grievance policy until August 	1985, 	nothing was 	said
which 	suggested 	that 	the 	bargaining 	table was 	not 	the
appropriate 	arena 	for 	such discussions.
Clinton 	testified 	she 	believed 	the 	Union was 	told 	the
matter was 	not 	a 	negotiable 	item some 	time 	in August 	1985. 	The
Union denies 	management 	took that 	position 	and, 	in 	this
instance, 	the Union's 	recollections 	are credited. 	On
August 	20, 	there was 	some discussion 	about 	sending 	the matter
to 	committee 	for 	further 	discussions 	and 	as 	late 	as 	October 	14,
Clinton's 	notes 	reflect 	that 	the matter was 	in 	fact 	sent 	to
committee.
If 	one 	arm of management was 	led 	to 	believe 	the Union did
not 	have 	an 	interest 	in negotiating 	the 	student 	grievance
policy, 	management 	itself 	is partly responsible. 	The
management 	representatives 	on 	the 	negotiating 	team 	should 	have
been 	communicating with Robinson 	so 	that 	he would 	not 	have
interpreted 	the Union's 	silence 	as 	acquiescence. 	By 	the 	same
token, 	the Union could 	have 	prevented 	any misunderstanding 	by
communicating with Robinson 	before October 	14 	and 	informing 	him
that 	the matter was 	one 	to 	be dealt with 	at 	the bargaining
table. 	Based on Thorpe's 	testimony, 	it 	appears 	the Union did
not want 	to 	dignify 	a management 	inquiry which 	the Union
considered 	improper 	because 	it 	was 	made 	outside 	the 	collective
bargaining 	arena. 	Nevertheless, 	some 	response would have
focused 	the 	issue 	earlier 	and may have 	obviated 	the 	need 	for
this 	hearing.
33

Having 	found 	that 	the 	District's 	waiver 	defense 	is 	without
merit, 	it 	is 	concluded 	that 	the District 	violated 	section
3543.5(c) 	when 	it 	unilaterally 	adopted 	and 	implemented 	the
student 	grievance 	policy. 	In taking 	action 	in violation 	of
section 3543.5(c), 	the District 	concurrently violated 	3543.5(a)
and 	(b) . 	San Francisco Community College District 	(1979) 	PERB
Decision No. 	105.
Case No. 	LA-CE-2273 	- 	Short-term and 	Saturday Classes
In this 	case, 	each side 	recognizes 	the obligation to
negotiate 	regarding 	the 	starting 	and 	ending 	days 	of
certificated 	service. 	Palos Verdes 	Peninsula 	Unified 	School
District/Pleasant Valley School 	District 	(1979) 	PERB Decision
No. 	96. 	The dispute 	in this 	case concerns whether or 	not 	there
is 	a duty to 	negotiate the 	starting 	and 	ending 	time of 	a
short-term calendar 	and whether 	the 	District 	changed 	its
policy 	and 	practice 	of 	negotiating 	such 	calendars 	in 	the 	past.
Both 	issues 	must 	be 	resolved 	in 	favor 	of 	the Union.
The 	starting 	and 	ending 	time 	of 	a 	short-term calendar,
whether or not 	it 	includes 	Saturday classes, 	is 	a matter
concerning 	hours 	and 	is 	therefore negotiable. 	For 	some
part-time 	faculty who 	are 	not 	teaching 	during 	the 	regular
semester, 	the 	starting 	date 	of 	the 	short-term or 	intersession
calendar 	is 	their 	first day of work. 	Even 	if 	that were not 	the
case, 	the collective bargaining contract 	provides 	that
calendars will 	be 	negotiated. 	Whether 	or 	not 	the 	starting 	day
on 	the calendar 	is 	the 	first 	day of 	an 	assignment 	for 	a
part-timer 	or 	the 	first day of 	an overload 	assignment 	for 	a
34

full-time 	faculty member 	is 	not 	a matter 	particularized 	in 	the
collective 	bargaining 	agreement.
•The 	District's 	argument 	that 	short-term calendars 	were
negotiated 	in 	the past 	only 	if 	they happened 	to 	include 	a
Saturday calendar 	is 	not 	supported 	by the 	record. 	Short-term
calendars were 	negotiated 	in 	the 	past 	and 	the District made 	no
effort 	to 	claim that 	negotiations 	were 	taking 	place 	only
because of 	the presence of 	Saturday classes. 	If 	only Saturdays
were negotiable, 	the District 	fails 	to 	explain why 	it
negotiated 	short-term calendars 	as 	well.
Apparently, 	in the 	1985-86 	school year, 	the District wanted
to move quickly. 	It wanted 	to 	offer 	intersession 	and 	Saturday
classes 	in 	order 	to 	increase 	enrollment 	and 	thereby 	increase
funding. 	Although the District's 	reasons 	for 	establishing 	the
intersession programs 	may be 	salutory, 	the 	reasons 	proffered
for 	not 	negotiating 	are 	specious 	and 	frivolous. 	The 	starting
and 	ending 	dates 	of 	the 	calendar 	are 	clearly negotiable 	and 	the
District's 	unilateral 	action constitutes 	a 	change 	in past
practice, 	a 	repudiation of the contract, 	and a violation of
section 3543.5(c) 	and derivatively, 	3543.5(a) 	and (b) .16	16
Grant 	Joint 	Union High School 	District 	(1982) 	PERB Decision No.
196.
16	16Given	Given 	the 	speed 	at which the 	calendars were 	put
together, 	and the testimony of Clinton and Thorpe, 	there 	is
some 	question 	as 	to whether 	the District 	unilaterally changed
the 	policy by 	failing 	to 	give 	full-time 	instructors 	a 	first
choice 	at 	overload 	classes 	and 	by 	failing 	to 	properly consult
with 	IAR's. 	Nevertheless, 	the Union 	failed to 	sustain 	its
35

V. 	CONCLUSION
Based 	on 	the 	foregoing 	findings 	of 	facts 	and 	conclusions 	of
law 	it 	is 	found 	that 	the Compton Community College District
violated sections 3543.5(a), 	(b), 	and 	(c) 	of the EERA when it
unilaterally 	adopted 	a 	student 	grievance 	policy 	and when 	it
unilaterally 	adopted 	calendars 	for 	short-term 	and/or 	Saturday
classes 	for 	the 	fall 	and 	spring 	of 	the 	1985-86 	school 	year.
VI. 	REMEDY
Section 3541.5(c) 	of 	the EERA states:
The 	board 	shall 	have 	the power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party to 	cease 	and 	desist 	from the unfair
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 policy of
this 	chapter.
A cease 	and desist 	order 	is 	the 	traditional 	remedy 	for 	an
employer's 	unilateral 	decision 	to 	change 	an 	established 	term or
condition 	of 	employment 	and 	for 	interference with 	the
negotiating 	rights 	of 	an exclusive 	representative. 	See, 	e.g.
Oakland 	Unified 	School 	District 	v. 	Public 	Employment 	Relations
Board 	(1981) 	120 Cal.App.3d 	1007.
In certain 	instances, 	restoration of 	the status 	quo 	ante 	is
also 	appropriate.
In the 	instant 	case, 	it 	is 	appropriate to order 	restoration
..'.
burden of 	proof 	on 	either 	issue 	and 	those 	aspects 	of 	Case No.
LA-CE-2273 	are 	hereby dismissed.
36

. . . . . of 	the 	status 	quo 	ante with 	respect 	to 	the 	student 	grievance
policy, 	unless 	the 	parties 	have 	subsequently negotiated 	and
reached 	agreement 	on 	this 	issue. 	Restoration 	of 	the 	status 	quo
ante may 	cause 	some 	disruption with 	respect 	to 	grievances 	which
are 	already being 	processed 	through the procedure, 	but, 	unless
the parties 	can 	reach 	agreement, 	those 	grievances 	should 	be
processed 	in 	the 	same way 	they would 	have 	been 	handled 	under
the 	old 	student 	grievance 	procedure.
In each case, 	the employer will 	be 	ordered 	to 	cease 	and
desist 	from its unlawful 	activity. 	In Case No. 	LA-CE-2272, 	the
employer 	should 	be 	required 	to 	cease 	and 	desist 	from
instituting 	and 	implementing 	the 	student 	grievance 	procedure
before 	giving 	notice 	and 	an 	opportunity 	to 	negotiate 	to 	the
Union 	representing 	its 	certificated 	and 	classified 	employees.
In Case No. 	LA-CE-2273, 	the employer 	should be 	required 	to
cease 	and 	desist 	from 	implementing 	intersession 	calendars
without 	complying with 	its 	duty 	to 	negotiate 	the 	starting 	and
ending 	time 	of 	each 	intersession.
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 	District
indicating 	that 	it will 	comply with 	the 	terms 	thereof. 	The
notice shall 	not be 	reduced 	in size, 	defaced, 	altered or
covered 	by 	any other material. 	Posting 	such 	a 	notice will
provide 	employees with notice 	that 	the District 	has 	acted 	in 	an
unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist 	from
37

this 	activity. 	It 	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. 	NLRB v. 	Express Publishing Co. 	(1941) 	312 U.S.
426 	[8 LRRM 415].
VII. 	PROPOSED ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and the 	entire 	record 	in these cases, 	and pursuant 	to EERA
section 3541.5(c), 	it 	is hereby ORDERED that the Compton
Community College District, 	and 	its 	representatives 	shall:
(A) 	CEASE AND DESIST FROM:
(1) 	Refusing 	to meet 	and negotiate 	in good 	faith with 	the
Compton Community College Federation of Employees, 	AFL-CIO, 	on
a matter within the 	scope of 	representation, 	a 	student
grievance 	policy, 	by unilaterally 	adopting 	such 	a 	policy;
(2) 	Refusing 	to meet 	and negotiate 	in good 	faith with 	the
Compton Community College Federation of Employees, 	AFL-CIO, 	on
a matter within the 	scope of 	representation, 	the calendar 	for
intersession 	and 	Saturday classes, 	by unilaterally 	adopting
calendars 	for 	short-term 	and 	Saturday classes 	for 	the 	fall 	and
spring 	of 	the 	1985-86 	school 	year;
38

(3) 	Denying 	the Union 	its 	right 	to 	represent 	unit members
in negotiations 	conducted 	in good 	faith; 	and
(4) 	Interfering with 	the 	employees' 	right 	to 	be
represented 	by 	the Union 	in 	negotiations.
(B) 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
(1) 	Immediately upon 	service of 	a 	final decision 	in this
matter, 	rescind 	the 	student 	grievance 	policy unilaterally
adopted by the Board of Trustees 	on October 	22, 	1985.
(2) 	Within ten 	(10) 	workdays of 	service of 	a 	final
decision 	in this matter, 	post 	at 	all 	school 	sites 	and 	at 	all
other work 	locations where 	notices 	to 	certificated 	and
classified employees 	are 	customarily placed, 	copies 	of 	the
Notice 	attached hereto 	as 	an Appendix. 	The Notice must 	be
signed 	by 	an 	authorized 	agent 	of 	the 	District 	indicating 	that
the District will 	comply with 	the 	terms 	of 	this Order. 	Such
posting 	shall 	be maintained 	for 	a 	period 	of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall 	be 	taken 	to
insure that 	the Notice 	is 	not 	reduced 	in size, 	altered, 	defaced
or 	covered 	by 	any other 	material.
(3) 	Upon issuance of 	a 	final decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	these 	orders
to 	the Los Angeles 	Regional 	Director 	of 	the 	Public Employment
Relations 	Board 	in 	accordance with his 	instructions.
All 	other 	allegations 	set 	forth 	in 	the 	Complaint 	in Case
No. 	LA-CE-2273 	shall be DISMISSED.
39

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, 	". 	. 	. 	or 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: 	March 10, 	1987 Barbara E. 	Miller
Administrative Law Judge
40