Healdsburg Union Elementary School District (PERB 1033E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HEALDSBURG AREA 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
HEALDSBURG 	UNION 	ELEMENTARY
SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-1494
PERB Decision No. 	1033
January 6, 	1994
Appearances; 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for Healdsburg Area Teachers Association, 	CTA/NEA;
School 	and College Legal 	Services by Noel 	J. 	Shumway, 	Coordinator
of 	Employer/Employee Relations, 	for Healdsburg Union Elementary
School District.
Before Blair, 	Chair; 	Hesse and Caffrey, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Healdsburg Union Elementary School 	District 	(District) 	to a 	PERB
administrative law judge's 	(ALJ) 	proposed decision 	(attached).
The ALJ found that 	the District violated section 3543.5(a), 	(b)
and 	(c) 	of 	the Educational Employment Relations Act 	(EERA)1 by
IBERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
(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
)
)
)
)
)
)
)
)
)
)
)
_______________ )

unilaterally 	implementing 	a 	policy 	requiring 	kindergarten
teachers 	to 	open 	their 	classrooms 	and begin 	supervising 	students
during the 	15 minutes prior to the 	start 	of 	class. 	The ALJ
dismissed 	the 	portion of 	the 	complaint 	which alleged 	that
distribution of 	the minutes 	of 	a District 	cabinet meeting
interfered with 	employee 	rights 	under EERA. 	The District
excepted 	to 	the ALJ's 	finding 	that 	it 	unlawfully 	implemented
a unilateral 	change.
employees because 	of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
The Board has 	reviewed the 	entire record in this 	case, 	and
finding 	the ALJ's 	decision 	to be 	free 	from prejudicial 	error
affirms 	the proposed decision.
DISCUSSION
The essence of 	this 	case 	is that 	the teachers' 	exclusive
representative 	alleges 	that 	the 	District 	implemented a 	unilateral
change 	by 	requiring kindergarten 	teachers 	at 	Fitch Mountain
Elementary 	to 	open 	their 	classrooms 	and 	supervise 	students 	during
the 	15 minutes 	prior 	to 	the 	time 	classroom instruction begins.
The 	teachers 	allege 	that 	this 	requirement 	is 	not 	included 	in 	the
parties' 	collective bargaining agreement 	(agreement) 	and is
inconsistent with past practice. 	Therefore, 	the teachers argue,
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this 	new requirement 	constitutes 	a unilateral 	change. 	The
District 	argues 	that 	the 	requirement 	was 	consistent 	with 	the
parties' 	agreement and established past practice.
The 	facts 	are 	summarized as 	follows: 	The 	kindergarten
teachers 	at 	Fitch Mountain 	Elementary 	School 	are 	required by 	the
parties' 	agreement 	to be 	"on site" 	at 	7:50 	a.m. 	Classes begin at
8:05. 	Before September 1991, 	the 	teachers performed a variety
of 	teaching 	related duties 	between 	7:50 	and 	8:05. 	The precise
duties 	performed and whether 	the 	duties 	were performed 	in 	the
classroom or elsewhere was 	left 	to the 	teachers' 	professional
discretion. 	As of September 4, 	1991, 	the teachers were directed
by Principal 	Nancy Baker 	(Baker) 	to be 	in 	their classrooms
supervising 	their 	students 	between 	7:50 	and 	8:05. 	The 	directive
stated:
[Kindergarten teachers] 	are to have their
rooms 	open at 	7:50 AM. 	Either 	the 	teacher or
instructional 	assistant 	is 	to be 	in the 	room
supervising. 	This will 	continue until
further notice.
In order 	to 	show that 	the District 	implemented a unilateral
change, 	the Healdsburg Area Teachers Association, 	CTA/NEA
(Association) 	must prove the following elements: 	(1) 	the
employer 	implemented a 	change 	in policy 	concerning 	a matter
within the scope of 	representation; 	and 	(2) 	the 	change was
implemented before 	the 	employer notified 	the 	exclusive
representative 	and gave 	it 	an opportunity 	to 	request
negotiations. 	(Grant Joint Union High School District 	(19 82)
PERB Decision No. 	196.)
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The 	Association demonstrated 	that 	there was 	no 	requirement
that 	teachers 	supervise 	their 	students 	prior to 	September 	1991
and Baker's 	directive 	created a new policy. 	One 	of 	the 	three
kindergarten teachers, 	Charlotte McGannon 	(McGannon), 	testified
that 	she 	never opened her room to 	students prior to 	8:05, 	but
rather, 	did a variety of 	teaching-related tasks. 	Another
kindergarten teacher, 	Carol Novak 	(Novak), 	testified that she
also did numerous 	teaching-related 	tasks 	before 	classes 	began,
most 	of which were performed outside 	of 	her 	classroom. 	The
third teacher, 	Judith Sanderson Irland 	(Irland), 	stated that
there 	was 	no 	formalized duty to 	supervise 	students 	before 	school
the previous year, 	but 	that 	she personally felt 	that 	it was 	her
professional 	responsibility. 	However, 	she also stated that prior
to 	the 	directive 	she 	had not 	opened her 	classroom at 	7:50 	because
she 	felt 	it was 	not 	required. 	When asked about 	her observations
of what 	other teachers did before 	school, 	she could not 	testify
to 	having 	any personal 	knowledge 	of 	what 	their practices 	had been
in the 	1990-91 	school year. 	She stated that 	sometimes 	she and
the 	other 	teachers 	would be 	sitting 	in a 	smoking 	room located
at 	the 	front 	of 	the 	school 	from which 	they 	could 	check on 	their
students, 	who were 	taught 	to 	stay by the 	door and wait 	for their
teacher.
Baker 	could not 	testify 	to 	one 	specific 	instance 	in which
she 	had observed a kindergarten 	teacher 	supervising 	students 	in
the morning during the 1990-91 	school year. 	She did, 	however,
4
4

- -
recall 	observing 	teachers 	arriving 	late 	after she 	had 	issued 	the
directive.
Of all 	the 	testimony, 	no one had personal 	knowledge 	of 	even
one 	kindergarten 	teacher who 	routinely 	supervised 	their 	students
from 7:50 	to 	8:05 	in 	the morning. 	Even 	Irland, 	who 	testified
that 	she 	did some morning 	supervision, 	admitted that 	she did so
out 	of 	a 	sense 	of 	professional 	responsibility rather 	than 	the
belief 	that 	it was 	required.
The 	District 	suggests 	that 	the 	kindergarten 	teachers 	must
have been 	supervising 	their 	students 	otherwise 	Baker would have
noticed 75 	to 	120 	children running unsupervised. 	The 	teachers
testified 	that 	the 	students 	were 	trained to wait 	for 	them on
benches 	outside 	the 	classroom, 	not 	to run around the 	school 	site.
Also, 	there was unrefuted testimony that parents were 	instructed
to bring 	their children to 	school 	as 	close 	to 	8:05 	as 	possible.
These 	facts 	explain why kindergarten 	children were 	not 	seen
running unsupervised before 	8:05--some 	of 	them were 	not 	at 	school
yet 	and others 	were 	seated 	on benches 	outside 	the 	classroom.2
Finally, 	the 	tone of 	the directive 	suggests 	that 	it 	imposes
a new policy. 	It makes no reference 	to any past practice. 	It 	is
not phrased as 	a 	reminder to adhere 	to an existing policy. 	It
tells 	the 	teachers where and when to 	supervise 	their students 	as
well 	as who 	can do 	the supervising. 	There 	is 	no 	indication that
teachers were 	familiar with this policy. 	In summary, 	the
2Even 	if 	it was 	shown that 	the 	teachers voluntarily
supervised the 	students, 	this 	does 	not 	establish a past practice
which requires 	the 	teachers 	to 	supervise 	the 	students.
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evidence 	clearly 	supports 	a 	finding 	that 	Baker's 	directive
established a 	new practice 	of 	requiring 	the 	kindergarten 	teachers
at 	Fitch Mountain Elementary to 	supervise 	their 	students 	before
class began.
To demonstrate 	that 	a 	change 	in duties 	during 	the workday
is 	negotiable, 	a charging party must 	show that 	the 	change has
an 	impact 	on the employees' 	workday. 	(Imperial 	Unified School
District 	(1990) 	PERB Decision No. 	825 	(Imperial); 	Cloverdale
Unified School District 	(1991) 	PERB Decision No. 	911.) 	The
Board has 	held 	that 	employers 	are 	generally 	free 	to alter 	the
instructional 	schedule without negotiations; 	however, 	when
changes 	in the 	instructional 	day affect 	the 	length of 	the
workday or existing duty-free time, 	the subject 	is negotiable.
(Imperial: 	San Mateo City School District 	(1980) 	PERB Decision
No. 	129.) 	The Board will 	not presume an effect 	on length of
workday or duty 	free 	time. 	Rather, 	the 	charging party has 	the
burden of 	proving 	that 	the 	employer's 	change 	impacted negotiable
terms and conditions 	of 	employment. 	(Imperial.)
- -
Here, 	two 	teachers 	testified that 	their workday was
lengthened as 	a 	result 	of 	the 	new morning 	supervision
requirement. 	McGannon testified 	that 	she 	had to 	lengthen her
workday by 	15 	minutes 	as 	a 	result 	of 	supervising her students
before 	school. 	Among 	the 	tasks 	she previously completed before
school 	were meeting with 	first 	and second grade 	teachers, 	many of
whom did not 	have 	a preparation period at 	the 	same 	time 	as 	she
did. 	Novak 	testified that 	tasks 	she had performed before 	school
66

now had to be 	completed on her lunch period, 	after school, 	or
before 	school, 	amounting to approximately 20 	additional minutes
per day. 	Novak's 	before 	school 	tasks 	included checking her box,
the 	"green board" 	in the teachers' 	room, 	and conferring with
other teachers 	or the principal. 	She would also determine 	if
any of 	the 	resource 	teachers 	or specialists were absent 	so 	that
she 	could adjust 	her schedule accordingly. 	Many of 	these 	tasks
had to be 	completed 	in the morning before 	school 	began and 	in
locations 	other than the 	classroom. 	Thus, 	teachers had to arrive
before 	7:50 	to accomplish these tasks. 	Clearly, 	impact 	on the
teachers' 	work hours has been established.
In response 	to the Association's prima 	facie 	showing, 	the
District 	asserts 	that 	the 	complaint 	should be 	dismissed 	for 	the
following reasons: 	first, 	before school 	supervision is 	required
by state 	regulation; 	second, 	there was a past practice of
requiring 	teachers 	to supervise 	students before 	school.
The District 	argues 	that 	the 	California Code 	of 	Regulations
section 55703 requires 	teachers 	to supervise 	students 	in their
3The 	California 	Code 	of Regulations 	section 5570 	states:
Unless 	otherwise provided by 	rule 	of 	the
governing board of 	the 	school 	district,
teachers 	are 	required 	to be present 	at 	their
respective 	rooms, 	and to open them for
admission of 	the pupils, 	not 	less 	than 30
minutes 	before 	the 	time prescribed 	for
commencing 	school.
All 	teachers 	shall 	observe punctually 	the
hours 	fixed by 	regulation of 	the 	governing
board of 	the 	school 	district 	for 	opening and
closing 	school.
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classrooms 	3 0 minutes before classes begin. 	We 	find that 	the
parties' 	agreement supersedes 	this regulation. 	The parties'
agreement 	in effect at 	the 	time 	of 	the 	change 	in Article VI,
section 6.1 	states, 	in pertinent part:
Although 	the 	regulation 	requires 	all 	teachers 	to 	open 	their 	rooms
for admission of pupils 	30 minutes before classes begin, 	the
regulation also permits 	the District 	to alter that provision.
Each 	teacher shall 	be 	on 	site 	fifteen 	(15)
minutes prior 	to 	the beginning of 	their 	first
class 	and 	remain on 	site 	fifteen minutes 	past
the end of 	their last 	class.
Principal 	Baker and the 	teachers 	agreed that 	"on site" 	means 	on
the school grounds.
Robert Latchaw 	(Latchaw), 	the District's negotiator since
1977-78, 	testified about 	the history of Article VI, 	section 6.1.
He 	stated 	that 	he understood 	the 	15-minute period 	to be
assignable 	for teaching related duties. 	However, 	Latchaw also
testified 	that 	it would probably be 	a 	stretch to 	say 	that 	the
section permits 	the District 	to assign direct 	instructional 	time
because 	that 	issue was negotiated separately. 	As 	far as 	student
supervision during 	this 	time, 	he did not 	remember that 	the
subject 	ever 	came up at 	the bargaining 	table, 	and he agreed 	that
it 	is 	certainly not 	reflected in the contract. 	In sum, 	none of
the witnesses 	unequivocally understood 	"on site" 	to mean 	in the
classroom supervising students. 	The parties' 	contract 	clearly
supersedes 	the 	requirements 	of 	section 5570 	by both 	shortening
the 	length of 	time 	teachers must be present before 	classes begin
and requiring 	them merely to be 	"on site." 	Therefore, 	we 	find
8

that 	the 	teachers' 	conduct 	is 	not governed by California Code of
Regulations 	section 5570.
The 	District 	alternatively argues 	that 	the practice 	at 	the
District's other kindergarten, 	or in other grades, 	establishes
a past practice 	for the 	Fitch Mountain kindergarten. 	The 	only
other school 	in 	the District with a kindergarten 	is 	Healdsburg
Elementary. 	The 	1990-91 	school 	year was 	the 	first year that
Healdsburg Elementary had a kindergarten. 	The principal, 	Don
Elsbree 	(Elsbree), 	testified that he and the kindergarten
teachers 	came 	to 	an agreement 	concerning 	before-school
supervision of 	students. 	They originally agreed 	that 	the
teachers 	would supervise 	their students 	from 7:50 	- 	8:05.
During 	the 	school 	year the 	time was 	changed to 	7:55 	- 	8:05
because 	Elsbree 	wanted the 	teachers 	to 	check 	the bulletin board
for announcements 	prior 	to 	classroom 	instruction beginning.
Elsbree 	distinguishes 	this 	agreement 	from Baker's 	directive 	in
that his 	teachers need not be 	in their rooms 	supervising, 	whereas
Baker 	required 	the 	teachers 	to 	"have 	their 	rooms 	open at 	7:50
AM." 	The District's 	argument 	that 	this 	agreement 	established a
past practice 	for Fitch Mountain must be 	rejected. 	The 	agreement
at 	Healdsburg Elementary was 	specific 	to 	the kindergarten at 	that
school. 	There 	is 	no 	evidence 	that 	it was 	intended or enforced as
an established district policy. 	Rather, 	it was an agreement
worked 	out by 	those 	to whom it 	applied.
The District 	asserts 	that 	the practice 	in other grades 	is
relevant 	to whether a past 	practice was 	established at 	the 	Fitch
9
9

Mountain kindergarten. 	For example, 	first and second grade
teachers 	do 	rotational 	duty at various 	times during 	the 	day.
There 	are 	11 	teachers 	available 	to 	cover various 	recesses 	during
the day. 	Only one 	or two of 	these 	teachers 	have 	the 	7:50 	to 	8:05
duty. 	Each teacher has 	duty only once 	or twice a week. 	These
teachers 	are 	on an entirely different 	schedule. 	This 	is 	not
comparable 	to 	the 	kindergarten 	setting 	in which 	the 	teachers
must 	cover all 	of 	their own recesses 	throughout 	the day. 	In
Imperial. 	the Board 	found that 	consideration of 	other grades 	was
inappropriate 	to 	establish a past practice 	and that 	it 	was 	proper
to 	compare 	schools 	at 	the 	same 	grade 	level 	within a district 	due
to 	their unique 	educational 	requirements. 	We 	find 	that 	the 	first
and 	second grade 	schedules 	are 	not 	helpful 	in resolving whether
there 	has 	been a unilateral 	change 	in the kindergarten teachers'
schedule.
CONCLUSION
Based on the entire 	record in this 	case, 	it 	is 	concluded
that 	the 	District 	breached 	its 	obligation 	to negotiate under
EERA when 	Baker unilaterally 	implemented 	a 	policy 	requiring
kindergarten 	teachers 	to be present 	in their 	classrooms 	and
supervise 	students 	from 7:50 	to 	8:05, 	in violation of 	EERA
section 3543.5(c). 	This 	conduct 	interfered with the
Association's 	right 	to represent 	its members 	in their employment
relations with the District, 	in violation of section 3543.5(b).
The 	same 	conduct 	interfered with 	individual 	kindergarten
teachers' 	rights 	to be 	represented by their 	chosen representative
10

in their employment 	relations with the District, 	in violation of
section 3543.5(a).
REMEDY
Under EERA section 3541.5(c), 	the Board is given the power
to 	issue 	a 	decision and order directing 	the 	offending party 	to
cease 	and desist 	from the unfair practice 	and to 	take 	such
affirmative action as will 	effectuate 	the policies 	of 	the 	EERA.
In this 	case 	it 	has 	been 	found 	that 	the District breached 	its
obligation 	to 	negotiate 	in good 	faith when 	it 	unilaterally
implemented a policy 	requiring 	kindergarten 	teachers 	to be
present 	in 	their 	classrooms 	and 	supervise 	students 	from 	7:50
to 8:05. 	This conduct violated section 3543.5(c), 	(b) 	and 	(a).
It 	is 	therefore appropriate 	to 	order 	the District 	to 	cease
and desist 	from such activity 	in the 	future, 	return 	to 	the 	status
quo which 	existed at 	Fitch Mountain 	Elementary School 	prior 	to
the unilateral 	change and, 	upon request, 	meet and negotiate with
the Association prior 	to making 	future 	changes 	in negotiable
terms and conditions 	of 	employment.
Under the circumstances presented here, 	it 	is also
appropriate 	to 	order the District 	to make whole 	the 	employees
affected by 	the unilateral 	change 	in policy. 	This 	shall 	consist
of 	providing 	the 	kindergarten 	teachers 	at 	Fitch Mountain
Elementary School 	affected by 	the 	change with an amount 	of 	time
off 	which 	corresponds 	with 	the 	additional 	work performed as 	a
result 	of 	the 	change. 	If 	the District and the Association cannot
agree 	on the manner 	in which compensatory time 	is 	granted,
11

affected 	employees 	shall 	be 	awarded monetary 	compensation
commensurate with the 	extra hours worked, 	including 	interest
at 	the 	statutory rate of 	seven 	(7) 	percent per annum. 	Disputes
regarding 	the 	implementation of 	the 	foregoing 	remedy will 	be
resolved through the Board's 	compliance procedure. 	It 	is 	further
appropriate 	that 	the District 	be 	ordered 	to post 	a notice
incorporating 	the 	terms 	of 	the 	order herein. 	Posting of 	such
a notice, 	signed by an authorized agent 	of 	the District, 	will
provide 	employees 	with notice 	that 	the District 	has 	acted 	in an
unlawful 	manner, 	is being 	required to 	cease and desist 	from this
activity and will 	comply with 	the 	order. 	It 	effectuates 	the
purposes 	of 	EERA that 	employees be 	informed of 	the 	resolution of
the 	controversy and 	the District's 	readiness 	to 	comply with 	the
ordered remedy. 	(Placerville Union School District 	(1978) 	PERB
Decision No. 	69; 	Davis Unified School District, 	et al. 	(1980)
PERB Decision No. 	116.)
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in this 	case, 	it 	is 	found that 	the
Healdsburg Union 	Elementary School 	District 	(District) 	violated
Government 	Code 	section 3543.5(c) 	of 	the 	Educational 	Employment
Relations Act 	(EERA) 	by unilaterally 	implementing a policy
requiring kindergarten teachers 	to 	open 	their classrooms 	and
begin supervising students 	during 	the 	fifteen 	(15) 	minutes 	prior
to the start 	of 	classes. 	By the same conduct, 	it has been found
that 	the District violated EERA section 3543.5(b) 	and 	(a).
12

Pursuant 	to section 3541.5(c), 	it 	is hereby ORDERED that the
District, 	its governing board and its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing 	to meet 	and negotiate 	in good
faith with the Healdsburg Area Teachers Association, 	CTA/NEA
(Association) 	concerning 	the policy 	requiring kindergarten
teachers 	to 	open 	their 	classrooms 	and begin 	supervising 	students
during 	the 	15-minute period prior to 	the 	start 	of 	classes;
2. 	Denying 	the Association 	the 	right 	to 	represent
employees 	in their employment 	relations with the District; 	and
3. 	Interfering with the 	employees 	in the 	exercise 	of
the 	right 	to be 	represented by 	the Association 	in 	their
employment 	relations 	with 	the District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS
DESIGNED TO EFFECTUATE 	THE 	POLICIES 	OF 	EERA:
1. 	Reinstate 	the practice which existed prior to
the September 4, 	1991 	directive 	concerning 	the 	requirement
of 	kindergarten 	teachers 	to 	open 	their 	classrooms 	and begin
supervising 	students 	during 	the 	15 	minutes prior 	to 	the 	start
of 	classes and, 	upon request, 	meet and negotiate any proposed
change 	in 	the practice with the Association.
2. 	Grant 	to each kindergarten 	teacher 	the amount 	of
compensatory 	time 	off 	which 	corresponds 	to 	the 	number 	of 	extra
hours 	worked as 	a 	result 	of 	the unilateral 	change 	referred to 	in
paragraph 	(1). 	Should the parties 	fail 	to reach agreement as 	to
the manner 	in which such compensatory time will 	be granted, 	then
such 	employees 	will 	be 	granted monetary 	compensation 	commensurate
13

with the additional 	hours worked, 	with interest 	at 	the 	rate 	of
seven 	(7) 	percent per annum.
3. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no 	longer subject 	to reconsideration, 	post at
all 	work 	locations where notices 	to 	employees 	are 	customarily
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.
Written notification of 	the 	actions 	taken 	to 	comply with
this 	Order shall 	be made 	to 	the 	San Francisco Regional 	Director
of 	the 	Public 	Employment 	Relations 	Board 	in accordance with her
instructions.
Member Hesse 	joined 	in this 	Decision.
Member Caffrey's 	concurrence and dissent begins 	on page 	15.
14

CAFFREY, 	Member, 	concurring and dissenting: 	I 	concur in the
majority's 	dismissal 	of 	the allegation that 	distribution of 	the
Healdsburg Union 	Elementary School 	District 	(District) 	cabinet
meeting minutes 	interfered with 	employee 	rights 	under 	the
Educational 	Employment Relations Act 	(EERA).
I 	dissent 	from the majority's 	conclusion that 	the District
unilaterally 	imposed 	a morning 	classroom 	supervision 	assignment
on 	Fitch Mountain 	Elementary 	School 	kindergarten 	teachers 	in
violation of 	EERA. 	I 	find that 	the Healdsburg Area Teachers
Association, 	CTA/NEA 	(Association) 	has not met 	its burden to
demonstrate 	that 	a new regular work assignment 	impacts 	the 	total
number 	of 	hours 	worked and 	represents 	a negotiable 	change 	in 	the
terms 	and 	conditions 	of 	employment.
A review of 	the 	evidence 	in 	this 	case 	establishes 	that 	while
some 	student 	supervision outside 	of 	instructional 	hours 	is 	a
normal 	teacher duty, 	there was 	no consistent pattern or practice
within 	the 	District 	of 	assigning morning 	classroom supervision
duties 	to kindergarten teachers. 	Consequently, 	Fitch Mountain
School 	Principal Nancy Baker's 	(Baker) 	September 4, 	1991
directive 	represented 	a 	new 	regular work assignment 	for 	Fitch
Mountain kindergarten 	teachers.
The 	Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	has
held 	that 	the 	assignment 	of 	teacher duties within 	the workday 	is
a management 	prerogative1 and outside 	the 	scope 	of 	bargaining
1Kindergarten 	teacher 	Charlotte 	McGannon 	(McGannon)
testified 	that 	prior 	to Baker's 	directive 	the 	decision 	regarding
duties 	to be performed in the 	7:50 	- 	8:05 	period 	"was 	totally up
15

when 	it 	does 	not 	affect 	the 	total 	number of 	hours 	worked.
(Moreno Valley Unified School 	District 	(1982) 	PERB Decision
No. 	206 	(Moreno Valley).) 	Therefore, 	having established that 	the
District 	gave 	a new 	regular work assignment 	to 	Fitch Mountain
kindergarten 	teachers 	by requiring morning 	supervision, 	the
Association has 	the burden 	of 	demonstrating 	the 	impact 	of 	that
assignment 	on 	the 	total 	number of 	hours 	worked by 	those 	teachers
in order 	to 	establish that 	it 	represents 	a unilateral 	change 	in
violation of 	EERA. 	As 	the Board stated in 	Imperial 	Unified
School District 	(1990) 	PERB Decision No. 	825 	(Imperial):
- -
to 	the 	teacher." 	Kindergarten teacher Carol 	Novak 	(Novak)
testified 	that 	the 	contract 	only 	required her 	to be 	"on 	site"
from 7:50 	- 	8:05 	and since 	it 	specified no duties 	to be performed
in this period, 	she 	could fill 	the time at her discretion, 	such
as 	by 	choosing 	to 	"write 	a personal 	letter." 	These 	statements
reflect 	a misunderstanding 	of 	the 	fundamental 	management
prerogative 	to assign duties 	during 	the workday.
PERB 	law generally views 	the 	length of 	the
instructional 	day as 	a management 	prerogative
which 	is 	outside 	the 	scope 	of 	representation.
[Citation.] 	Thus, 	employers are generally
free 	to alter 	the 	instructional 	schedule
without 	prior 	negotiation 	with 	employee
organizations. 	However, 	when changes 	in the
instructional 	day 	in 	turn affect 	the 	length
of 	the working 	day or existing duty-free
- -time, 	the subject 	is negotiable.
(Emphasis 	in original.)
In Imperial, 	without negotiating with the exclusive
representative, 	the 	district 	increased the 	instructional 	minutes
of 	each class. 	The district 	took the additional 	15 	instructional
minutes 	from the 	limited amount 	of 	on-duty, 	noninstructional 	time
before 	and after 	classes 	during which 	teachers 	were 	required 	to
be at 	school 	but were not 	engaged in actual 	student 	instruction.
16

- -
Despite 	the 	fact 	that a significant portion of 	the 	teachers' 	on-
duty, 	noninstructional 	time was 	lost 	through the district's
action 	in 	Imperial. 	the 	Board 	reversed 	the violation 	found by 	the
administrative 	law judge, 	finding 	that 	the burden of 	showing a
change 	in the 	total 	number of 	hours worked by teachers 	as 	a
result 	of 	the 	schedule change had not been met. 	Moreover, 	the
Board 	emphasized 	that 	the 	burden 	of 	demonstrating workday 	impact
rests 	firmly on 	the 	charging party by 	overruling a portion 	of
Moreno Valley. 	In Moreno Valley, 	the 	elimination of 	five minutes
of 	a 	fifty-minute preparation period was 	found 	to have 	an
"apparent" 	impact 	on 	the 	teacher workday because 	the 	record did
not 	indicate 	that 	the 	district 	had agreed 	to accept 	a 	reduced
level 	of 	preparation 	from teachers. 	The 	Board 	in 	Imperial
specifically overruled that 	finding, 	concluding 	that 	this
presumption 	of 	impact 	had 	inappropriately 	lifted 	the 	burden 	from
the 	charging party. 	Essentially, 	the Board described the
charging party's 	burden as 	demonstrating 	that 	after 	the 	schedule
change 	the 	district 	demanded a 	level 	of preparation which
exceeded 	the 	amount 	of 	time 	that 	remained available 	for 	that
purpose 	in 	the 	teacher workday.
The 	instant 	case presents 	circumstances 	similar to 	those 	of
Imperial 	in 	that 	teachers 	were 	given a new specific work
assignment 	of 	15 minutes 	duration which was 	to be performed
during 	the 	existing workday. 	This 	case differs 	from the
circumstances of 	Imperial, 	however, 	in that 	it does not 	involve a
-
17

- -
change 	in instructional 	or preparation time, 	but 	the assignment
of 	specific duties 	during on-duty, 	noninstructional 	time.
Applying 	the burden on 	the 	charging party as 	described 	in
Imperial 	to 	this 	case, 	a 	showing of workday 	impact by the
Association must 	demonstrate 	that 	after 	requiring 	the morning
classroom supervision, 	the District 	demanded performance 	of
duties 	which exceeded 	the 	amount 	of 	time 	that 	remained available
in 	the workday 	to perform them.
I 	conclude 	from the 	record 	that 	the Association has 	failed
to meet 	this burden. 	At 	the 	time of 	Principal 	Baker's
September 4 	directive, 	kindergarten teachers at 	Fitch Mountain
School had in excess 	of 	11 hours 	of 	on-duty, 	noninstructional
time per week.2 Simultaneous 	with 	the morning 	classroom
supervision assignment, 	Principal 	Baker assigned 	Fitch Mountain
kindergarten teachers 	an additional 	one hour per day, 	five hours
per week, 	of 	instructional 	duty assisting 	first 	and 	second grade
teachers. 	The 	five hours were diverted from the 	two hours 	of
afternoon 	on-duty, 	noninstructional 	time 	kindergarten 	teachers
had 	in their workday. 	These 	facts 	establish that 	kindergarten
teachers 	had 	time 	available 	in 	their workday which did not 	carry
specific 	assignments 	and 	could accommodate 	significant 	new
regular work assignments 	at 	the 	time 	of 	Baker's 	September 4
directive. 	They also establish that 	following 	the directive,
2In addition 	to 	the 	15 minutes prior to 	the beginning 	of
classes, 	kindergarten teachers 	at 	that 	time had on-duty,
noninstructional 	time 	from 12:35 p.m. 	to 2:35 p.m. 	each day.
18

kindergarten 	teachers 	continued to have at 	least 	one 	hour of 	on-
duty, 	noninstructional 	time 	remaining 	in their workday.
The 	record 	includes 	very 	little 	evidence 	or 	testimony
describing 	any 	specific 	duties 	kindergarten 	teachers 	performed
during 	this 	remaining hour per afternoon of 	on-duty,
noninstructional 	time. 	McGannon described this 	hour as 	"planning
time," 	"quiet 	time," 	and time when she did 	"a lot 	of 	thinking and
prepping" 	in her classroom 	(TR. 	1, 	p. 	124). 	Novak responded
affirmatively 	to 	the Association 	counsel's 	description 	of 	the
time as 	"a preparation period" 	(TR. 	1, 	pp. 	177-178). 	Despite
these 	characterizations, 	the 	record clearly 	indicates 	that 	the
workday of 	kindergarten 	teachers 	in 	this 	District 	does 	not
include 	a preparation period by 	the 	express 	terms 	of 	the
collective bargaining agreement 	in 	effect 	between 	the parties.
The 	Board has 	held 	that 	"[t]he mere 	fact 	that 	an 	employer has 	not
chosen 	to 	enforce 	its 	contractual 	rights 	in the past 	does 	not
mean that, 	ipso facto, 	it 	is 	forever precluded from doing so."
(Marysville Joint 	Unified School District 	(1983) 	PERB Decision
No. 	314, 	p. 	10; 	State of California 	(Department of Personnel
Administration) 	(1993) 	PERB Decision No. 	995-S.) 	Therefore,
while 	kindergarten 	teachers 	used 	their afternoon 	on-duty,
noninstructional 	hour 	essentially as 	a preparation period, 	they
had no 	contractual 	right 	to do 	so and this 	time 	is 	subject 	to 	the
fundamental 	management prerogative 	to 	assign 	teacher duties
within the workday. 	Since 	the 	record 	is 	devoid of 	evidence 	that
kindergarten 	teachers 	perform specific 	duties 	during 	their
19

remaining hour of 	afternoon on-duty, 	noninstructional 	time 	the
Association has 	failed to demonstrate 	that 	this 	time 	is
unavailable 	to accommodate 	new regular work assignments.
In addressing 	the workday 	impact 	of 	the morning 	classroom
supervision assignment 	the Association 	concentrates 	on 	the 	duties
kindergarten 	teachers performed 	in 	the 	7:50 	- 	8:05 	period prior
to 	the 	September 4 	directive. 	McGannon and Novak testified to
the difficulty of 	performing 	some 	of 	those duties 	later 	in the
workday. 	For example, 	meetings with first 	and second grade
teachers 	became 	difficult 	to 	schedule because 	those 	teachers 	had
instructional 	responsibilities 	during 	the 	afternoon 	on-duty,
noninstructional 	time of 	kindergarten teachers. 	Novak testified
to 	some 	inconvenience 	in performing duties 	such as 	copying and
materials 	preparation later 	in the workday, 	but 	acknowledged 	that
it was possible to do so. 	As a result, 	McGannon and Novak
testified 	that 	after 	the 	September 4 	directive 	they began 	their
workday 	15-20 	minutes 	prior 	to 	7:50 	in order 	to 	continue
performing 	these duties 	in the morning. 	The Association argues
that 	this 	testimony demonstrates 	the 	workday 	impact 	of 	the
morning 	classroom 	supervision 	assignment.3
The 	testimony of 	McGannon and Novak 	clearly 	indicates 	that
continuing 	to perform certain duties 	in 	the morning was more
convenient 	and more 	efficient 	for 	them. 	The 	convenience 	or
efficiency 	of 	performing duties 	during 	a particular 	time 	within
3Kindergarten 	teacher 	Judith 	Sanderson 	Irland 	testified 	that
she 	experienced no workday 	impact 	as 	a 	result 	of 	the 	new
assignment.
20

the workday 	is 	not 	instructive 	in determining 	the workday 	impact
of a newly assigned duty, 	however. 	In this 	case, 	an assessment
of 	the 	impact 	of 	the new regular work assignment 	on the workday
of 	Fitch Mountain Kindergarten 	teachers must 	address 	whether
those 	teachers 	have 	time 	available within 	their afternoon hour 	of
on-duty, 	noninstructional 	time 	to perform the duties 	they
performed 	in 	the 	7:50 	- 	8:05 	period prior to 	the 	September 4
directive. 	The 	evidence 	offered by 	the Association 	fails 	to
adequately address 	this 	issue and, 	therefore, 	fails 	to meet 	the
burden of 	demonstrating 	that 	the workday 	of 	kindergarten 	teachers
could not 	accommodate 	the 	new morning 	supervision assignment.
I 	conclude 	that 	the Association has 	failed 	to meet 	its
burden of 	showing 	that 	the 	new 	regular work assignment 	given
Fitch Mountain 	School 	kindergarten 	teachers 	exceeded 	the 	time
available 	in their workday to perform those duties. 	Therefore, 	I
would dismiss 	the 	charge 	that 	the District 	violated 	EERA section
3543.5(a), 	(b) 	and 	(c) 	when Principal Baker issued the September
4 	directive.
21

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-1494,
Healdsburg Area Teachers Association. 	CTA/NEA v. 	Healdsburg Union
Elementary School District, 	in which the parties 	had the 	right
to participate, 	it has been found that 	the Healdsburg Union
Elementary School 	District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA), 	Government Code section
3543.5(c) .
As a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing 	to meet 	and negotiate 	in good
faith with the Healdsburg Area Teachers Association, 	CTA/NEA
(Association) 	concerning 	the policy requiring kindergarten
teachers 	to 	open 	their 	classrooms 	and begin 	supervising 	students
during 	the 	15-minute period prior to 	the 	start 	of 	classes;
2. 	Denying 	the Association the 	right 	to 	represent
employees 	in their employment 	relations with the District; 	and
3. 	Interfering with the 	employees 	in the 	exercise
of 	the 	right 	to be 	represented by the Association 	in their
employment 	relations 	with 	the District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	EERA:
1. 	Reinstate 	the practice which existed prior 	to
the 	September 4, 	1991 	directive 	concerning 	the 	requirement
of 	kindergarten 	teachers 	to 	open 	their 	classrooms 	and begin
supervising 	students 	during 	the 	15 	minutes prior to 	the 	start
of 	classes and, 	upon request, 	meet and negotiate any proposed
change 	in 	the practice with the Association.
2. 	Grant 	to each kindergarten teacher the amount 	of
compensatory 	time 	off 	which 	corresponds 	to 	the 	number 	of 	extra
hours worked as 	a 	result 	of 	the unilateral 	change 	referred to 	in
paragraph 	(1). 	Should the parties 	fail 	to reach agreement as 	to
the manner in which such compensatory time will be granted, 	then
such 	employees 	will 	be 	granted monetary 	compensation 	commensurate
·e·~-·.
--

with the additional 	hours worked, 	with interest at 	the 	rate 	of
seven 	(7) 	percent per annum.
Dated: 	HEALDSBURG 	UNION 	ELEMENTARY
SCHOOL 	DISTRICT
By Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	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
HEALDSBURG AREA 	TEACHERS
ASSOCIATION, CTA/NEA,
Charging 	Party,
V.
HEALDSBURG UNION ELEMENTARY SCHOOL
DISTRICT,
R e s p o n d e n t .
)
) 	Unfair 	Practice
Case No. 	SF-CE-1494
PROPOSED 	DECISION
(7/24/92)
)
)
)
)
)
)
)
)
)
Appearances: 	Ramon Romero, 	Attorney, 	for Healdsburg Area
Teachers Association, 	CTA/NEA; 	School and College Legal Services,
by Margaret M. 	Merchat, 	Attorney, 	for Healdsburg Union Elementary
School District.
Before 	Fred D'Orazio, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	unfair practice 	charge was 	filed by the Healdsburg Area
Teachers Association, 	CTA/NEA 	(Association or Charging Party)
against 	the 	Healdsburg 	Union Elementary 	School 	District 	(District
or Respondent) 	on August 9, 	1991.
The General 	Counsel 	of 	the 	Public 	Employment Relations 	Board
(PERB or Board) 	issued a complaint on December 27, 	1991. 	The
complaint 	alleges 	that the District 	(1) 	distributed coercive
statements to bargaining unit members, 	and 	(2) 	unilaterally
implemented 	a 	requirement 	that 	kindergarten 	teachers 	supervise
students 	during the 	fifteen 	(15) 	minute period before 	school
begins.1 These actions, 	the complaint alleges, 	violated the
1 Additional 	allegations 	in 	the 	complaint 	that 	the 	D i s t r i c t
(1) 	u n i l a t e r a l l y 	adopted 	an 	open house 	requirement, 	(2)
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.
___________________ )

Educational 	Employment Relations Act 	(EERA or Act) 	section
3543.5(a), 	(b) and (c).2 The District's answer, 	filed on January
17, 	1992, denied all allegations.
negotiated directly with teachers, 	and 	(3) 	unilaterally 	adopted 	a
date by which teachers were 	to 	announce their intent 	to 	remain 	in
service 	for 	the 	following 	school 	year were withdrawn by 	Charging
Party at 	the beginning of 	the hearing.
A 	settlement 	conference was 	conducted by a 	PERB
administrative law judge 	(ALJ) 	on February 7, 	1992, 	but the
dispute was 	not resolved. 	The undersigned ALJ 	conducted a 	formal
hearing on April 	7 and 8, 	1992, 	in Santa Rosa, 	California. 	With
receipt of the final brief on July 	1, 	1992, 	the case was
submitted.
FINDINGS 	OF 	FACT
Jurisdiction
The 	District 	is 	a public 	school 	employer within the meaning
of 	section 3540.l(k). 	The Association is an employee
2The 	EERA 	is 	codified at Government Code 	section 	3540 	et
seq. 	Unless 	otherwise indicated, 	all 	statutory references 	in
this decision are to the Government Code. 	Section 3543.5(a), 	(b)
and 	(c) 	make it 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.
22

organization within the meaning of 	section 3540.l(d), 	and the
exclusive 	representative of 	a unit of 	the 	District's 	certificated
employees within the meaning of 	section 3540.l(e).
Morning 	Supervision
There are 	three 	elementary 	schools 	in the District: 	Fitch
Mountain 	includes 	kindergarten through 	second grade, 	Healdsburg
includes 	kindergarten through 	sixth grade, 	and Foss Creek
includes 	grades 	three through 	six. 	Central 	to the resolution of
this 	case 	is 	the past practice 	concerning activities performed by
kindergarten teachers 	between 	7:50 	and 	8:05, 	prior to 	the 	start
of classes.3
Nancy Baker 	(Baker) 	has 	been the principal 	at Fitch Mountain
Elementary School 	since 	1988. 	During the 	1990-91 	school year,
Baker told at 	least 	two kindergarten teachers 	that 	student
supervision was 	required during the 	15 	minute period 	- 	from 	7:50
to 	8:05 	- 	prior to the 	start of 	classes. 	She believed that
classroom 	supervision during 	this 	time was 	required under 	the
collective bargaining agreement. 	According to Carol 	Novak,
(Novak) 	a 	Fitch Mountain kindergarten teacher and Association
representative, 	Baker raised this 	issue during the 	end of 	the
1990-91 	school year, 	but the matter was not resolved.
3During the 	course of the hearing, 	the parties presented
detailed 	evidence 	about the daily 	schedule 	of 	all 	classroom
teachers. 	Since kindergarten teachers 	follow a different
schedule 	than other classroom teachers, 	only evidence 	about 	the
kindergarten teacher 	schedule will 	be 	considered here. 	Moreover,
since 	this 	case deals 	only with the 	change 	in practice during the
7:50 	to 	8:05 	time 	frame as 	it affects 	kindergarten teachers, 	only
that part 	of 	the 	kindergarten teacher 	schedule 	is 	relevant 	to 	the
resolution of this 	dispute.
33

During an August 29, 	1991, 	meeting with the Fitch Mountain
kindergarten teachers, 	Baker announced that they were 	to be 	in
their 	classrooms 	supervising 	students 	between 	7:50 	and 	8:05 	a.m.
Charlotte McGannon 	(McGannon), 	an Association negotiator and past
grievance 	representative, 	protested that 	Baker's 	announcement
constituted a 	change 	in past practice 	and 	therefore was
negotiable. 	Other 	kindergarten teachers 	at Fitch Mountain
supported McGannon's position at the meeting. 	These teachers
announced that 	they would not honor the requirement, 	that 	they
open their classrooms 	at 	7:50 	to 	supervise 	students. 	Another
meeting was 	set for September 3, 	1991.
When she arrived at the September 	3 	meeting, 	Baker noticed
that Association 	field representative 	George 	Cassel was 	present.
Because 	she did not have a District representative present, 	Baker
postponed the meeting. 	On September 4, 	before another meeting
was 	held, 	Baker 	issued the 	following written directive 	to
kindergarten teachers 	at 	Fitch Mountain.
[Kindergarten teachers] 	are to have their
rooms 	open at 	7:50 AM. 	Either the teacher or
instructional assistant 	is 	to be 	in the room
supervising. 	This will 	continue until
further notice.
This policy remains 	in effect.
There 	is 	a dispute 	concerning whether kindergarten 	teachers
are 	required 	to 	open 	classrooms 	and 	supervise 	students 	between
7:50 	and 	8:05. 	Baker testified that, 	under the 	contract 	and past
practice, 	kindergarten teachers 	are required to open classrooms
at 	7:50 	and 	supervise 	students 	in the 	classroom until 	classes
4

begin at 	8:05. 	According to Baker, 	this 	requirement may be
satisfied either by teachers, 	classroom aides, 	or an arrangement
where 	teachers 	and aides 	share 	the responsibility. 	Based on her
admittedly 	sporadic 	observation during the past 	two years, 	Baker
believed 	that 	kindergarten 	teachers 	had 	acted 	in 	accordance 	with
this requirement.
Three 	of 	the 	five Fitch Mountain kindergarten 	teachers
testified about their actual practice. 	All 	three gave testimony
inconsistent with 	that given by Baker. 	McGannon testified 	that
kindergarten teachers were required to be 	"on site" 	15 	minutes
prior to 	the 	start of 	school,' but no requirement existed to open
classrooms 	and 	supervise 	students 	during this 	15 	minute period.
In fact, 	McGannon testified, 	she has 	"never" 	opened her classroom
prior to 	8:05, 	or the 	start of 	school, 	except when she chose to
do 	so 	in order to complete 	some task such as 	meet with a parent.
During the 	15 	minute period prior to the 	start of 	classes,
McGannon typically performs 	a variety of 	tasks. 	She meets with
other teachers who may not be available 	later 	in the day,
prepares 	for classes, 	holds parent conferences, 	checks her mail,
etc. 	According to McGannon, 	these duties 	cannot realistically be
accomplished with 	students 	in the 	classroom. 	During this 	time,
4As 	more 	fully discussed below, 	the collective bargaining
agreement 	does 	not 	expressly 	include 	the 	requirement 	that
kindergarten 	teachers 	open 	their 	classrooms 	and begin 	supervising
students 	during the 	15 minute period prior to the 	start of
classes. 	Section 	6.1 	of 	the 	contract requires 	only that 	teachers
be 	"on site" 	during this time. 	There is no dispute that, 	under
the contract, 	the term 	"on site" 	means only on school property.
5

McGannon's 	students 	typically wait 	outside 	her 	classroom on a
bench.
McGannon also disputed Baker's 	testimony that 	aides were
available 	to 	assume 	responsibility 	for 	supervising 	students
during the 	15 minute period prior to the 	start of 	school. 	In
McGannon's 	view, 	the decision to 	seek assistance 	from aides was
totally the teacher's prerogative. 	Moreover, 	McGannon testified,
aide participation 	in 	supervising 	students 	during 	the 	7:50 	to
8:05 	period prior to 	the 	start 	of 	classes 	is 	problematic 	because
aides 	do 	not 	generally arrive until 	8:00.
Carol 	Novak 	corroborated 	McGannon's 	testimony 	in 	key
respects. 	She testified that, 	during the 	1990-91 	school year,
the 	7:50 	to 	8:05 	time 	slot was 	used 	largely to accomplish tasks
of 	the 	type described by McGannon. 	She 	typically opened her
classroom between 8:00 	and 	8:05. 	Novak's 	students, 	like those of
McGannon, 	waited outside 	the 	classroom on a bench until 	the 	room
was 	opened.
Judy 	Irland 	(Irland), 	a Fitch Mountain kindergarten teacher
who was 	called as 	a witness by the District, 	testified that 	she
has 	a 	"professional 	responsibility" 	to 	supervise 	students 	from
7:50 	to 	8:05. 	She 	said that 	this 	responsibility was 	"assumed"
during the 	1990-91 	school year, 	but 	it has been 	"clearly 	stated"
during the 	1991-92 	school 	year as 	a 	result of Baker's 	September 	4
memo. 	Irland admitted that 	she 	"didn't begin at 	7:50 	last year
or any other year, 	because 	it had not been clarified." 	She 	said
that 	she did not 	go 	to her room until 	approximately 	7:55, 	and her
6

students were 	taught 	to wait 	for her at 	the door to 	the 	classroom
until 	she arrived. 	Further, 	Irland's 	testimony suggests 	that the
practice 	of 	the 	remaining two kindergarten teachers 	at 	Fitch
Mountain was 	not 	consistent. 	At one point 	she 	testified that 	the
other kindergarten teachers 	"by 	choice" 	arrive 	"very 	early,"
about 	7:30 	or 	7:35. 	At 	another point 	she 	said that 	"sometimes we
would all be 	sitting together until about 	[7:55] 	and then go off.
And 	I 	assumed they were going off to open their doors, 	too."
The practice 	at 	Healdsburg Elementary School 	is 	relevant 	to
determine 	the 	extent of 	the practice 	in the District. 	Like Fitch
Mountain, 	classes 	at Healdsburg 	start 	at 	8:05. 	According to 	Don
Elsbree 	(Elsbree), 	principal at Healdsburg, 	the 	1990-91 	school
year 	started with 	kindergarten teachers 	picking up 	their 	students
from various 	on-site 	locations 	at 	7:50. 	At 	some point during 	the
school 	year, 	Elsbree 	told teachers 	he wanted them to 	check the
bulletin board 	for announcements 	prior 	to 	school 	starting.
Teachers 	responded that 	they did not have 	the time 	to do 	so 	and
still 	gather their 	students 	at 	7:50. 	This 	resulted 	in Elsbree
and 	the 	Healdsburg 	kindergarten 	teachers 	entering 	into 	a 	mid-
year 	agreement which 	gave 	teachers 	time 	to 	check the bulletin
board prior 	to picking up 	students 	on the playground 	or 	in 	the
library 	at 	7:55.5 This practice 	remained 	in effect during 	the
1991-92 	school year.
5At 	some 	unspecified 	time 	after 	this 	agreement was 	reached,
two 	of 	the 	four kindergarten teachers 	at 	Healdsburg voiced 	their
objection to 	Elsbree 	that 	they did 	not 	feel 	they were 	required 	to
supervise 	students 	from 	7:50 	to 	8:05.
77

The 	final witness 	to 	testify about 	the obligation to
supervise 	students prior to 8:05 was 	Toni 	Saunders 	(Saunders), 	a
kindergarten teacher at Healdsburg. 	She agreed with Elsbree 	that
the 	current practice 	at 	Healdsburg 	requires 	kindergarten teachers
to pick up 	students 	at 	7:55 	for 	supervision prior to 	the 	start of
classes at 8:05. 	Contrary to Elsbree, 	however, 	Saunders
testified that, 	under the 	1990-91 practice, 	kindergarten teachers
at 	Healdsburg were not required to pick up 	students 	for
supervision until 	8:05.
Based on the testimony of these 	six witnesses, 	it is
concluded that prior to September 4, 	1991, 	no established
practice 	existed 	of 	kindergarten teachers 	opening 	their
classrooms 	at 	7:50 	to begin 	supervising 	students. 	Every
kindergarten 	teacher who 	testified 	stated 	convincingly 	that 	in
actual 	practice 	she 	did not 	open her 	classroom and begin to
supervise 	students 	at 	7:50 	prior to Baker's 	September 	4
directive. 	Even Judy 	Irland, 	who was 	called to testify by
Respondent, 	admitted that 	in 	1990-91 	she did not open her
classroom and begin to 	supervise 	students 	at 	7:50. 	It 	appears
that, 	on occasion, 	some kindergarten teachers 	opened their
classrooms 	at 	7:50 	to perform various 	duties, 	such as 	meeting
with parents, 	preparing for class, 	etc., 	and there may have been
instances 	when Baker observed them doing 	so. 	But Baker testified
that 	she 	did not regularly patrol 	classrooms 	and thus 	her
admittedly 	sporadic 	observations 	of 	kindergarten 	teachers 	in
their 	classrooms 	prior to 	8:05 	does 	not 	outweigh 	the 	testimony 	of
8

all 	kindergarten teachers 	that 	the 	opening of 	classrooms 	before
8:05 was 	only by choice, 	and not done with 	sufficient 	frequency
to 	be 	realistically described 	as 	an 	established practice.
Nor 	does 	the 	testimony 	about 	Healdsburg 	Elementary 	School
tend to 	support 	the 	existence 	of 	a 	consistent past practice 	in
the District. 	Even under Elsbree's 	testimony, 	kindergarten
teachers 	at Healdsburg pick up 	their 	students 	at 	7:55, 	not 	7:50
as 	Baker claimed 	is 	required by past practice and the 	contract.
Two 	teachers 	gave 	specific 	testimony 	concerning 	the 	impact
of Baker's 	September 4, 	1991, 	memo on their work day. 	McGannon
testified 	that 	she 	now arrives 	on 	site 	at 	approximately 	7:35 	and
spends 	an additional 	15 	minutes 	per day performing the various
tasks 	previously accomplished 	from 	7:50 	to 	8:05. 	Novak 	similarly
testified 	that 	the 	supervision requirement prior to 	the 	start 	of
classes 	has 	forced her to perform the duties 	normally
accomplished 	from 	7:50 	to 	8:05 	at other times, 	thus 	extending
each workday approximately 	20 	minutes. 	Irland, 	on the other
hand, 	testified that 	supervising 	students 	for the 	15 	minute
period before 	school 	starts has 	not 	impacted on her hours. 	In
fact, 	she testified, 	being in her classroom during this period
enables 	her to 	accomplish various 	noninstructional 	tasks.
Bargaining 	History
Pursuant to Article 	6, 	section 6.1, 	of the collective
bargaining agreement, 	"each teacher 	shall be on site 	fifteen
minutes prior to 	the beginning of 	their 	first 	class 	and remain on
site 	fifteen minutes past the 	end of their last 	class." 	Thus,
9

since 	classes 	begin at 	8:05 	a.m., 	teachers 	are 	required 	to be 	on
site at 	7:50.
Robert Latchaw 	(Latchaw), 	who has 	negotiated the collective
bargaining agreement 	for the District 	since 	1977-78, 	testified
about 	the history of Article 	6, 	section 6.1. 	In his view,
applicable 	law requires 	teachers 	to be 	in their classrooms 	to
supervise 	students 	30 	minutes prior to the beginning of 	classes,
unless 	there is 	an agreement to the contrary	
' 	. 	This 	requirement,
Latchaw further testified, 	formed the basis 	for 	early versions 	of
Article 	6, 	section 6.1. 	The 	30 minute period was meant to be a
time when the 	District 	could 	assign teachers 	noninstructional,
teaching related duties. 	He 	said: 	"[T]he bargaining history
became that absent any contract 	. 	. 	. 	language. 	Teachers had to
be there. 	. 	. 	. 	[T]he District could require 30 minutes prior
because that was 	in the code. 	That was before the 	cases 	about
harmonizing 	the 	language 	and the 	code 	and 	all 	that 	from 	the
unfair decisions." 	Latchaw 	said this 	period was 	not meant 	to
provide prep time. 	In fact, 	Latchaw testified, 	a number of prep
time proposals 	were presented 	over the 	years 	and 	rejected by 	the
District. 	"Its 	really kind of unbelievable to me that this 	has
turned around into an argument over prep time. 	. 	. 	. 	[I]t was my
clear understanding that this 	15 	minutes 	prior was 	assignable
time 	for 	teaching 	related duties. 	. . . "
However, 	Latchaw also 	testified that 	"it would probably be 	a
stretch to 	say that 	[section 	6.1 	permits 	the 	District 	to] 	assign
direct 	instructional 	time 	because we 	negotiated that 	issue
10

separately," 	but 	"as 	far as 	supervision duty of 	students, 	I don't
remember that 	it 	ever came at the table, 	and 	its 	certainly not
reflected 	in the 	contract." 	Asked by the ALJ 	if 	"assignable 	time
for teacher related duties" 	is 	reflected in the contract, 	Latchaw
answered:
That's 	my belief 	of 	the 	interpretation when
it was 	negotiated because 	later on we 	-- when
this 	language was 	first put 	in the contract,
we 	never 	actually 	negotiated 	directed 	student
contact time. 	The 	first time we negotiated
the 	student contact time was 	in a
relationship to SB 813, 	to get people up to
the minimum required. 	And 	so there are 	--
you've got these 	little pockets 	of 	time that
have been negotiated. 	And whenever prep time
was 	addressed as 	an issue, 	it was pointed out
how expensive prep 	time was 	and that 	it 	took
away 	from the duties 	that 	teachers 	could be
assigned. 	And, 	as you can see, 	there's a
fairly minimal prep time 	language 	in here
included 	in 	6.5.
In later contracts, 	the parties 	agreed to reduce the time 	in
Article 	6, 	section 6.1, 	from 30 minutes to 	15 minutes. 	This
section of 	the 	contract has 	not been discussed by the parties 	in
negotiations 	since 	1986.
The 	Cabinet 	Meeting 	Minutes
The 	superintendent's 	cabinet 	is 	a 	13 	member body made up 	of
all principals 	and various 	District administrators. 	The 	cabinet
meets weekly and operates 	from a prepared agenda. 	Agenda 	items
are 	typically 	labeled 	"open" 	or 	"closed" 	by the person proposing
the particular item for discussion. 	The 	label 	"open" 	means 	that
minutes 	reflecting the discussion on that 	item are 	distributed
to, 	among others, 	Association representatives and teachers. 	The
designation 	"closed" 	means 	the matter 	is 	confidential 	in nature
. -
i . . . .MY
11

and meant 	for discussion only by 	cabinet members. 	Minutes 	of 	the
discussion of 	a 	"closed" 	item are 	not distributed.
Minutes of the cabinet meeting of May 28, 	1991, 	indicate
that 	Baker proposed 	to discuss 	her 	relationship with the
Association as 	a 	"closed" 	topic 	under the 	general 	heading of
"union information." 	The 	"Action desired/Resolution" 	is
described 	in the 	minutes 	as 	"Working with union to provide 	change
in the district." 	The results 	of 	the discussion are 	summarized
in the minutes as 	follows:
RESULTS: 	Frustration at kindergarten level;
situation 	in working within the 	constraints
of 	contract. 	Discussion on how to accentuate
the positive, 	work together, 	work directly
with principal 	rather than 	'go 	to union'.
Suggested 	a 	committee with board members,
quarterly work sessions, 	school visitations,
use 	of 	curriculum 	session are 	ideas 	to work
on. 	Larry6 	suggested bringing 	in a 	teacher
rep 	to workshop once 	a month to develop 	a
plan - 	open communication 	- 	research on
comanagement.
The workshop 	referred to 	in the minutes was 	conducted 	in
September, 	1991, 	by Latchaw. 	However, 	no Association
representative was present.
McGannon testified that 	copies 	of 	the minutes were placed 	in
teacher mail 	boxes 	at Fitch Mountain. 	She personally received 	a
copy of the minutes, 	as did Carol Novak. 	The minutes were also
distributed 	at 	Foss 	Creek Elementary 	School.
Baker did not personally distribute the minutes, 	and 	she
said 	it was 	a 	"mistake" 	to distribute minutes which contained
a. . . .. .
66 Larry Machi 	is 	the District 	superintendent.
12

discussion of a 	"closed" 	item. 	In fact, 	Baker did not 	learn that
the 	minutes 	had been distributed until 	she 	received 	a 	copy 	of 	the
instant unfair practice charge, 	on August 	14, 	1991. 	Baker does
not 	know who 	distributed 	the minutes.
Several witnesses 	described the 	environment 	at 	Fitch
Mountain 	in which the minutes were distributed. 	McGannon
testified 	that processing 	grievances was 	difficult 	because 	of
Baker's 	"demeanor, 	her anger and her unwillingness 	to
compromise." 	Baker's attitude, 	McGannon testified, 	had a
chilling effect on employee willingness 	to 	file grievances, 	as
well 	as 	on employee willingness 	to 	serve as 	an Association
grievance representative. 	McGannon admitted, 	however, 	that some
grievances were 	filed and 	settled. 	Novak 	similarly 	testified
that 	Baker 	is 	"extremely 	stern 	and very 	opinionated 	and wishes
for her way to be the 	right way. 	And when anybody 	ever
challenges or contributes 	a different viewpoint, 	it 	is 	not
readily 	accepted."
Baker, 	on the other hand, 	denied that 	she has 	a
communication problem with teachers 	in general. 	She 	admitted,
however, 	that a 	communication problem exists with 	some teachers,
including 	McGannon and Novak. 	Baker 	further 	admitted 	to 	some
degree 	of 	frustration 	stemming 	from her unsuccessful 	attempt 	to
get McGannon and Novak to 	address 	concerns 	in a 	"collaborative
method." 	Baker also 	candidly admitted 	that 	she has 	raised her
voice on occasion with teachers. 	It appears 	that Baker's 	style
13

and manner 	stood 	in 	stark contrast 	to her predecessor, 	who 	Irland
described as 	"more relaxed, 	more 	laid-back."
Association witnesses 	cited 	specific 	incidents 	upon which
they base 	their characterization of 	Baker's 	conduct. 	Chief 	among
these 	is 	the 	so-called open house incident. 	In brief, 	Baker and
certain parents wanted to have an open house, 	but questions were
raised concerning contract compliance, 	timing, 	and whether any-
open house 	should be 	limited 	to 	Fitch Mountain or held 	District-
wide. 	The topic was discussed at a meeting.
According to Novak, 	when 	she raised these 	issues 	at 	the
meeting, 	Baker "screamed and yelled 	. 	. 	. 	pointed her finger
. 	. 	. 	and berated 	[Novak]." 	Novak said Baker accused teachers of
lacking dedication 	and being 	selfish.
Paula Wurlitzer 	(Wurlitzer), 	a parent who was present at the
meeting disputed Novak's 	testimony about 	Baker's 	conduct. 	She
described the tone of the meeting as 	"a 	little 	emotional" 	on both
sides, 	but not unprofessional. 	There was 	no yelling or screaming
or 	finger pointing. 	Wurlitzer never became 	uncomfortable or
formed 	the 	opinion that the meeting was 	"out 	of 	control."
Baker's 	testimony 	concerning this 	incident 	is 	consistent with 	the
testimony 	given by Wurlitzer.
The 	Association 	also presented 	hearsay 	testimony 	by 	McGannon
to 	the 	effect 	that 	several 	teachers 	transferred 	from Fitch
Mountain 	to 	Healdsburg 	Elementary 	School 	because 	they were
intimidated by Baker. 	Only one of these teachers, 	Toni 	Saunders,
was 	called to testify. 	Saunders 	testified that 	she transferred
14

from Fitch Mountain because 	she 	felt 	intimidated by Baker. 	She
also 	said 	that 	in her conversations with other teachers 	she 	"felt
a 	lot 	of 	the 	same 	feelings were 	coming 	from them." 	Asked 	for an
example of 	an 	incident where 	Baker 	intimidated her, 	Saunders
replied:
A. 	What 	I 	remember is 	that 	she came 	into the
meeting -- we were 	sitting at a table, 	the
teachers were all 	sitting at a table, 	and
Nancy 	came 	in and did not 	sit down and 	she
did not greet us, 	she 	just listened for
awhile.
Q. 	And so that was 	concerning to you. 	You
felt 	that that was 	intimidating?
A. 	It felt so to me.
ISSUES
1. 	Whether the September 4, 	1991, 	directive requiring
kindergarten teachers 	to 	open their 	classrooms 	and begin
supervising 	students 	at 	7:50 	a.m. 	constituted 	a unilateral 	change
in a negotiable subject, 	in violation of section 3543.5(a), 	(b)
and 	(c)?
2. 	Whether distribution of the minutes 	from the
superintendent's 	cabinet 	meeting 	interfered with 	rights 	under 	the
EERA, 	in violation of 	section 3543.5(a) 	or 	(b)?
CONCLUSIONS 	OF 	LAW
I. 	Morning Supervision-----
It 	is well 	settled that a pre-impasse unilateral 	change 	in a
negotiable 	topic 	violates 	the duty 	to meet 	and negotiate 	in good
faith. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].) 	Such
unilateral 	changes 	are 	inherently destructive 	of 	employee 	rights
15

and are 	a 	failure per 	se of 	the duty to negotiate 	in good 	faith.
(See 	San Mateo County Community College District 	(1979) 	PERB
Decision No. 	94; 	Davis Unified School District et al. 	(1980) 	PERB
Decision No. 	116.)
Established practice may be 	reflected 	in a 	collective
bargaining agreement 	(Grant 	Joint 	Union High 	School 	District
(1982) 	PERB Decision No. 	196) 	or where the agreement is vague or
ambiguous, 	it may be determined by an examination of bargaining
history 	(Colusa 	Unified School 	District 	(1983) 	PERB 	Decision
Nos. 	296 	and 296(a)) 	or the past practice 	(Rio Hondo Community
College District 	(1982) 	PERB Decision No. 	279; 	Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51).
An employer makes no unilateral change, 	however, 	where an
action the 	employer takes does 	not alter the 	status 	quo. 	"[T]he
'status quo' 	against which an employer's 	conduct 	is 	evaluated
must 	take 	into 	account the 	regular and 	consistent past patterns
of 	changes 	in the 	conditions 	of 	employment." 	(Pajaro Valley
Unified School District, 	supra. 	PERB Decision No. 	51.) 	Further,
only unilateral 	changes which violate 	district-wide practices 	are
unlawful. 	(Modesto City Schools 	and High School 	District 	(1985)
PERB Decision No. 	541.)
In this case, 	I have determined that, 	prior to Baker's
September 4, 	1991, 	directive, 	there was no established District-
wide practice 	requiring kindergarten teachers 	to 	open their
classrooms 	at 	7:50 	and began 	supervising 	students. 	(See 	Findings
of Fact, 	supra, 	pp. 	8-9.) 	At the only two schools offering
- -.
16

kindergarten classes, 	teachers used all or part of the 	15 minute
period 	between 	7:50 	and 	8:05 	to perform 	a 	variety 	of 	preparatory
duties. 	At neither 	school was 	there 	a hard and 	fast 	rule which
required 	classroom 	supervision during 	this 	15 	minute 	block of
time prior to the 	start of 	classes. 	Elsbree reached ah agreement
with 	kindergarten teachers 	at 	Healdsburg which 	called 	for
classroom 	supervision to begin at 	7:55, 	not 	7:50. 	And Baker was
in the process 	of meeting with kindergarten teachers 	at 	Fitch
Mountain when she issued the September 4, 	1991, 	directive. 	Prior
to this 	time, 	there was no 	clear understanding between Baker and
the 	kindergarten teachers 	at Fitch Mountain. 	Individual 	teachers
used the 	15 	minutes prior to the 	start of 	classes 	to perform a
variety 	of 	teaching-related 	tasks. 	McGannon opened her 	classroom
prior to 	8:05 	only when she 	chose to do 	so. 	Novak typically
opened her classroom between 8:00 	and 	8:05. 	Even Judy 	Irland, 	a
witness 	called to testify by the District, 	admitted that 	she 	too
typically opened her room at 	7:55, 	not 	7:50. 	According to
Irland, 	other teachers were on different 	schedules, 	some times
arriving as 	early as 	7:30, 	other times 	not going to their
classrooms 	until 	7:55. 	In none of these 	instances 	is 	there
evidence 	that 	teachers 	reached 	an 	agreement with 	classroom 	aides
to began 	supervising 	students 	in the 	classrooms 	at 	7:50, 	as 	Baker
contended was possible. 	Therefore, 	it is 	concluded that no
consistent 	District-wide practice 	existed 	at 	schools 	offering
kindergarten classes prior to Baker's 	September 4, 	1991,
17

directive. 	(Imperial Unified School District 	(1990) 	PERB
Decision No. 825, p. 6.)7
The 	change 	in this 	case 	involved an 	increase 	in 	student
supervision time prior to the 	start of classes; 	essentially,
Baker's 	September 	4 	directive 	imposed 	a 	new work assignment 	on a
regular basis. 	This, 	in turn, 	dictated that some teachers work
more minutes 	per day. 	The 	change here did not 	involve an
increase 	in actual 	instructional minutes, 	nor did the 	change
modify a negotiated prep period. 	Nevertheless, 	since employer
changes 	in the 	areas 	of prep 	time 	and 	instructional 	minutes 	are
analogous 	to the 	change which 	forms 	the basis 	of the 	instant
dispute, 	Board precedent in these areas provides 	useful 	guidance
here. 	In Imperial Unified School District, 	supra, 	the Board
established 	standards 	to measure the 	effects 	of 	changes 	on the
workday:
PERB 	law generally views 	the 	length of 	the
instructional day as 	a management prerogative
which 	is 	outside the 	scope of representation.
(Jefferson School District 	(1980) 	PERB
Decision No. 	133.) 	Thus, 	employers are
generally 	free 	to 	alter the 	instructional
schedule without 	prior 	negotiation with
employee organizations. 	However, 	when
changes 	in the 	instructional day 	in turn
affect the 	length 	of 	the working day or
existing duty-free time, 	the 	subject is
negotiable. 	. 	. 	. 	(San Mateo City School
District 	(1980) 	PERB Decision No. 	129
underlining 	in 	original.)
7It is noteworthy that, 	prior to the 	1990-91 	school year,
Fitch Mountain was 	the only 	school 	in the 	District providing
kindergarten 	classes. 	Healdsburg did not 	offer 	kindergarten
classes until the Fall of 	1990. 	Thus, 	the prior District-wide
practice over the past 	several 	years 	is primarily 	formed by the
events 	at 	Fitch Mountain.
18

(Imperial Unified School District 	(1990) 	PERB
Decision No. 	825, pp. 	7-8; 	see also
Cloverdale 	Unified 	School 	District 	(1991)
PERB Decision No. 	911, pp. 	16-17.)
In a 	long line of cases, 	the Board has held that 	employer
unilateral 	action which 	impacted either the 	employees' 	workday or
duty free time was 	negotiable. 	(See 	e.g., 	Fountain Valley
Elementary School District 	(1987) 	PERB Decision No. 	625; 	Corning
Union High School District 	(1984) 	PERB Decision No. 	399; 	Victor
Valley Union High School 	District 	(1986) 	PERB Decision No. 	565;
Cloverdale Unified School District, 	supra. 	PERB Decision No.
911.) 	However, 	even where unilateral changes are made, 	the Board
will 	not presume 	an effect on length of workday or duty 	free
time. 	The Charging Party has 	the burden of proving 	that the
change 	impacted on negotiable 	terms 	and 	conditions 	of 	unit
employees. 	(Imperial Unified School District, 	supra, 	p. 	9-10
(inconclusive 	testimony by bargaining unit 	members 	did 	not 	show
impact 	on 	nonwork time).)
In this case, 	the Association has met this burden. 	It may
be 	acknowledged that 	the 	impact of 	Baker's 	directive was 	not
great, 	nor did 	it affect 	every bargaining unit member.
Nevertheless, 	the Board has 	found violations when even relatively
minor 	increases 	in the workday have 	occurred without 	the 	benefit
of negotiations. 	(See e.g., 	Victor Valley Union High School
District, 	supra, 	PERB Decision No. 	565, 	adopting decision of
administrative 	law judge at 	10 	PERC Para. 	17079.) 	The evidence
here 	shows 	that McGannon now arrives 	on 	site at about 	7:35 	and
19

spends 	an additional 	15 minutes per day performing the
noninstructional 	preparatory 	duties 	she 	previously 	accomplished
between 	7:50 	and 	8:05. 	And Novak now performs 	similar duties 	at
times 	other than between 	7:50 	and 	8:05, 	thus 	extending 	each
workday approximately 	20 minutes. 	The 	fact that the change 	in
question here 	had no 	impact on 	Irland's working 	conditions 	does
not cure Baker's directive of 	its 	unlawful 	character. 	The Board
has determined that a unilateral change, 	to be found unlawful,
need not 	effect 	every member of 	the unit. 	(See e.g., 	Jamestown
Elementary School District 	(1990) 	PERB Decision No. 	795, 	p. 	6.)
Therefore, 	it is concluded that the September 4, 	1991,
directive, 	which required kindergarten teachers 	at 	Fitch Mountain
Elementary 	School 	to 	open their 	classrooms 	at 	7:50 	a.m. 	and begin
supervising 	students 	on a regular basis, 	altered the 	status 	quo
by 	its 	impact on a 	negotiable 	term and condition of 	employment.
Absent a valid defense, 	the District will be held in violation of
its 	obligation to negotiate under the Act.
A. 	District Defenses
The 	District points 	to 	the 	collective bargaining 	agreement
and underlying bargaining history to 	support 	its 	argument 	that
the Association waived 	its 	right 	to negotiate and thus 	there was
no unlawful unilateral 	change here. 	The Board has 	long 	followed
the 	"clear and unmistakable" 	test 	in deciding whether a waiver of
a 	statutory right 	exists. 	(Amador Valley Joint 	Union High 	School
District 	(1978) 	PERB Decision No. 	74.) 	More recently, 	the Board
has 	observed 	that 	"finding 	that 	an 	employee 	organization has
20

waived its right to bargain is 	a 	serious matter, 	not to be 	found
without 	convincing 	evidence 	of 	the organization's 	intent."
(Compton Community College District 	(1989) 	PERB Decision No. 	720,
p. 	18.) 	Not only must the employer bear the burden of proving
the affirmative defense of waiver, 	but 	"any doubts must be
resolved against the party asserting waiver." 	(Ibid.) 	This
standard 	"requires 	that evidence of waiver be 	conclusive."
(Ibid.) 	Applying this 	standard here, 	I 	conclude that the
Association has 	not waived 	its 	right 	to bargain.
The 	express 	language of 	the 	contract does 	not 	cover the
matter at 	issue here. 	Section 	6.1 	provides 	only that 	"each
teacher 	shall 	be 	on 	site 	fifteen minutes 	prior to 	the 	beginning
of 	their 	first class 	and remain on site 	fifteen minutes past 	the
end of 	their 	last class." 	The parties 	are 	in agreement that the
term 	"on site" 	means only on school property. 	Thus, 	the only
contractual directive which 	can be drawn 	from this 	language 	is
that teachers 	must be on 	school property 	15 	minutes prior to the
start of 	classes. 	There 	is 	no express 	language 	in the contract
which 	can 	reasonably be 	interpreted 	as 	authority to 	impose 	a
classroom 	supervision 	requirement 	on kindergarten 	teachers.
Accordingly, 	there has 	been no 	clear and unmistakable waiver by
contract.
Latchaw's 	testimony 	about 	bargaining history 	similarly 	does
not 	establish waiver under Board 	law. 	In order to 	evaluate 	the
bargaining history for waiver purposes, 	it 	is 	necessary to recall
the 	three 	distinct 	types 	or categories 	of 	time 	identified by
21

Latchaw in his 	testimony. 	The 	first 	is what was described 	in the
record as 	"assignable time" 	for 	"noninstructional" 	or 	"teaching
related duties." 	The 	second category of 	time 	is 	student 	contact
or actual 	instructional time. 	The third is prep time.
According to Latchaw, 	assignable 	time 	for noninstructional
teaching 	related duties 	is 	not 	to be 	confused with 	either actual
instructional minutes or prep time. 	Student contact time, 	he
said, 	was 	negotiated 	into the 	contract 	long after 	section 	6.1 	was
adopted. 	In addition, 	the Association has made various prep time
proposals over the years and the District, 	in large part, 	has
resisted their placement 	into the contract.8 Thus, 	student
contact 	time 	and prep 	time was 	discussed at 	the 	table 	and 	related
language 	inserted 	into the 	contract.
The 	same 	cannot be 	said about 	the third category of 	time.
Latchaw testified that he 	formed 	a 	"clear understanding 	that 	this
15 	minutes prior was 	assignable time 	for teaching related
duties." 	The Association's 	arguments do not dispute this
understanding. 	McGannon and Novak, 	for example, 	testified that
they 	arrive 	on 	site 	and perform a 	variety 	of 	teaching related
duties prior to the 	start of classes. 	The heart of the dispute
here 	lies 	in the requirement that kindergarten teachers 	open
classrooms 	and begin 	supervising 	students 	during the 	15 	minute
period. 	As 	to this 	requirement, 	Latchaw candidly admitted that
8 A minimal prep time provision 	in the 	contract 	is 	in 	section
6.4. 	It provides 	only that 	"teachers 	assigned to 	teach regular
or 	special day 	class 	grades 	4 	through 	6 	shall be 	entitled to 	30
consecutive minutes 	of preparation time per week."
22
'

the 	"supervision of 	students" 	was 	never discussed and 	"its
certainly not reflected in the 	contract." 	Thus, 	even under
Latchaw's 	testimony, 	it cannot be 	concluded that the topic 	of
classroom 	supervision prior to 	the 	start 	of 	classes was 	"fully
discussed" 	or 	"consciously 	explored" 	and 	the Association
"consciously yielded" 	its 	interest 	in the matter. 	(Los Angeles
Community College District 	(1982) 	PERB Decision No. 	252, 	p. 	13.)
More 	importantly, 	the parties 	negotiated a provision
(section 	6.1) 	which 	specifically covers 	the obligations 	of
teachers 	during the 	period of 	time 	immediately prior 	to 	the 	start
of 	classes. 	Yet they chose not to 	include the 	student
supervision requirement 	in this 	section, 	agreeing instead to
require teachers 	merely to be 	"on site" 	during this 	time.
Meanwhile, 	a practice developed over the years 	under which
teachers 	arrived 	"on 	site" 	and used the 	15 	minutes prior to the
start of 	classes 	to perform certain teaching related duties, 	as
Latchaw expected. 	But opening 	classrooms 	and 	supervising
students 	during this 	time plainly was 	not part of 	that practice.
Balanced 	against 	the plain 	language 	of 	the 	agreement 	and 	the
clear past practice, 	Latchaw's 	testimony about bargaining
history, 	is 	not the kind of 	"convincing" 	and 	"conclusive"
evidence which will 	support 	a 	finding 	that 	the Association has
clearly and unmistakably waived 	its 	right 	to negotiate. 	(Compton
Community College District, 	supra, 	p. 	18.)
The 	District 	next 	argues 	that 	the California Code 	of
Regulations, 	Title 5, 	Division 1, 	Section 5570, 	played a pivotal
. . . 4 .
23

role 	in the negotiations 	and requires 	that 	teachers 	be 	in their
classrooms 	supervising students 	prior to 	the 	start 	of 	classes.
Section 5570 provides:
Unless 	otherwise provided by rule of 	the
governing board of 	the 	school district,
teachers 	are required to be present at 	their
respective rooms, 	and to open them for
admission of pupils, 	not less than 30 minutes
before 	the 	time prescribed 	for 	commencing
school.
All 	teachers 	shall 	observe punctually 	the
hours 	fixed by 	regulation of 	the 	governing
board of 	the 	school 	district 	for opening and
closing school.
Latchaw testified 	that this 	section 	formed the basis 	of 	section
6.1 when it was 	first placed 	in the 	contract. 	Later, 	during the
1986 negotiations, 	the 30 minute requirement was 	changed to 	15,
and the parties 	have not 	addressed this 	topic 	in negotiations
since 	1986.
Neither the plain language of 	section 	5570 	nor Latchaw's
testimony 	on 	this point provide 	the 	District with 	a 	valid waiver
defense. 	First, 	there is nothing in section 5570 which 	sets an
"inflexible 	standard or insure[s] 	immutable provisions" 	to
preclude 	negotiations 	about 	its 	content. 	(San Mateo City School
District 	(1984) 	PERB Decision No. 	375.) 	Section 5570 	contains 	a
requirement 	that 	teachers 	be present 	at 	their respective 	rooms
and open them 	for admission of 	students 	30 	minutes prior to 	the
start of 	school. 	In the 	absence of 	the collective bargaining
agreement and the past practice which exists here, 	section 	5570
would be controlling. 	However, 	the District, 	by its own action,
has 	severely undercut 	the application of 	section 	5570 	here.
24

Specifically, 	section 	5570 provides 	that the governing board of
the district has 	the authority to agree 	to a 	rule which differs
from that 	expressly 	set 	out 	in the 	section. 	The District has
done 	so 	in this 	case, 	agreeing with the Association in 	section
6.1 	of the 	contract that teachers 	need only be 	"on site" 	15
minutes prior to the beginning of their first class. 	The
agreement plainly does 	not 	require 	teachers 	to 	open 	classrooms
and begin supervising students. 	In fact, 	as 	found above, 	the
District 	has 	acquiesced 	in a practice 	under which 	teachers 	were
not 	required 	to 	open their 	classrooms 	and 	supervise 	students 	for
the 	15 	minute period prior to 	the 	start of 	classes. 	Under these
circumstances, 	any argument that 	section 	5570 	required
kindergarten teachers 	to 	open 	classrooms 	and begin 	supervising
students 	15 minutes prior to the 	start of classes 	is 	not
convincing.
The 	District next asserts 	that 	it has 	an inherent managerial
right to direct the work of 	its 	employees, 	including the right to
determine duty assignments within the hours provision of 	the
contract. 	Even accepting this 	statement of managerial
prerogative, 	the District's 	action cannot be 	excused under
relevant Board 	law. 	The hours provision of 	the contract does 	not
cover the matter at 	issue here. 	Although the employer is
generally 	free 	to 	alter working 	conditions 	in areas 	which 	involve
inherent managerial prerogatives, 	it is well 	established that the
impact or effects 	of 	such decisions 	are negotiable. 	When
managerial 	decisions 	affect 	the 	length of 	the working day or
25
•	
'

- 6 .. .
existing duty-free time, 	the 	impact of management's 	decision must
be 	negotiated with 	the 	exclusive representative. 	(See 	e.g.,
Imperial Unified School District, 	supra, 	p. 	7; 	Victor Valley
Union High School District, 	supra. 	PERB Decision No. 	565.)
II. 	The Cabinet Minutes
In Rio Hondo Community College 	District 	(1980) 	PERB 	Decision
No. 	128, 	pp. 	18-20, 	the Board found that 	"a public school
employer 	is 	entitled to express 	its 	views 	on employment-related
matters 	over which 	it has 	legitimate 	concerns 	in order to
facilitate 	full 	and knowledgeable debate." 	To decide whether
employer 	speech is 	lawful, 	the Board established the 	following
test.
[T]he 	Board 	finds 	that 	an employer's 	speech
which 	contains 	a 	threat 	of 	reprisal or 	force
or promise 	of benefit will be perceived as 	a
means 	of violating the Act and will,
therefore, 	lose 	its protection and constitute
strong 	evidence 	of 	conduct which 	is
prohibited by 	section 	3543.5 	of 	the EERA.
(Id. 	at p. 	20.)
Whether the 	employer's 	speech 	is protected or constitutes 	a
proscribed threat 	or promise 	is 	determined by 	applying 	an
objective 	rather than a 	subjective 	standard. 	(California 	State
University 	(California State Employees' 	Association. 	SEIU Local
1000) 	(1989) 	PERB Decision No. 	777-H, 	adopting decision of
administrative law judge at 	12 PERC Para. 	19063, 	pp. 	292-294)
Thus, 	"the charging party must 	show that the 	employer's
communications 	would 	tend 	to 	coerce 	or 	interfere with 	a
reasonable 	employee 	in the 	exercise 	of protected rights." 	The
fact 	"[T]hat employees may interpret 	statements, 	which are
26

otherwise protected, 	as 	coercive does 	not necessarily render
those 	statements unlawful." 	(Regents 	of 	the University of
California 	(1983) PERB Decision No. 	366-H, 	fn. 	9, pp. 	15-16; 	BMC
Manufacturing Corporation 	(1955) 	113 	NLRB 	823 	[36 	LRRM 	1397].)
The 	Board has 	also held 	that 	statements 	made by an employer are
to be viewed 	in their overall 	context 	to determine 	if 	they have 	a
coercive meaning. 	(Los Angeles 	Unified 	School 	District 	(1988)
PERB Decision No. 	659, 	p. 	9, 	and cases cited therein.)
In addition, 	the Board has placed 	considerable weight 	on the
accuracy 	of 	the 	content of 	the 	speech 	in determining whether 	the
communication constitutes 	an unfair 	labor practice. 	(Alhambra
City and High School 	Districts 	(1986) 	PERB Decision No. 	560,
p. 	16; 	Muroc Unified School District 	(1978) 	PERB Decision No. 	80,
pp. 	19-20.) 	Thus, 	where employer speech accurately describes an
event, 	and does 	not on its 	face carry the threat of 	reprisal 	or
force, 	or promise of benefit, 	the Board will not find the 	speech
unlawful. 	Under these standards, 	the individual 	statements
reflected 	in the cabinet minutes, 	standing alone or taken as 	a
whole, 	did not carry the threat of reprisal or force, 	or promise
of benefit.
As 	a 	threshold matter, 	it 	cannot be overlooked that the
minutes were 	not 	intended 	for distribution. 	Baker convincingly
testified that distribution of the minutes was 	a 	"mistake" 	and
she didn't 	learn of 	it until 	the unfair practice 	charge was
filed. 	Nor 	is 	there 	a 	claim challenging the 	accuracy of 	the
minutes.
27

The minutes 	refer to 	Baker's 	apparent desire 	for employees
to bring problems 	directly to her rather than to 	the Association,
but the overall 	tone and content of 	the minutes 	outweigh any
negative 	connotation which might 	otherwise 	be drawn 	from this
isolated 	comment. 	For example, 	the minutes plainly 	state that
the 	"action desired" 	or 	"resolution" 	is 	"working with the union
to provide change 	in the district." 	Specific topics 	are
discussed as 	vehicles 	to achieve this 	goal. 	Even the
superintendent, 	Larry Machi, 	is described in the minutes as
suggesting positive 	approaches 	such 	as 	workshops 	with 	teacher
representatives 	aimed 	at developing 	"open 	communication" 	and
"comanagement." 	On balance, 	the minutes 	reflect more of a desire
to 	improve 	the 	labor-management relationship 	than they do 	an
attempt 	to 	inhibit 	communications 	with 	the Association or with
teachers 	in general.
Further, 	the expression of 	"frustration" 	at working within
the constraints 	of 	the contract at the kindergarten level 	is 	not
necessarily coercive. 	It is a 	statement of fact, 	reflecting
Baker's personal opinion or feeling, 	which does 	not on its 	face
carry a threat or promise of benefit. 	By its very terms, 	a
collective bargaining 	agreement 	is 	designed 	to 	impose 	certain
restrictions 	on 	the 	employer's 	discretionary authority as 	to
those 	terms 	covered by the agreement. 	Administration of 	a
collective 	bargaining 	agreement 	frequently 	brings 	parties 	into
disagreement 	and causes 	frustration. 	It would be 	a wholly
unrealistic 	application of 	the Act 	to 	construe this 	mere
28

expression of 	frustration as 	a vehicle of 	coercion. 	The Board
,has 	viewed much 	stronger 	statements 	by both union and management
alike as permissible 	speech. 	(See e.g., 	Regents of the
University of California 	(1983) 	PERB Decision No. 	366-H, 	adopting
decision of administrative 	law judge at 	7 	PERC Para. 	14083
(statements 	by a police chief, 	while being interviewed by a panel
of unit employees, 	that he did not 	like the 	"adversary climate"
created by collective bargaining, 	collective bargaining was 	a
"shame," 	and the union is 	a 	"sour union," 	were held as
permissible 	speech); 	Rio Hondo Community College District 	(1982)
PERB 	Decision No. 	260 	(during question and answer 	session with
superintendent at 	end of 	faculty meeting, 	teacher's utterance of
the word 	"chickenshit" 	in response to 	superintendent's 	comment
viewed 	by 	Board 	as 	permissible).)
The Association argues 	that the 	"environment of
coerciveness" 	which 	existed at 	Fitch Mountain is 	a 	factor which
supports 	its 	contention that 	the minutes 	interfered with 	employee
rights 	under the Act. 	It 	is 	largely undisputed that Baker's
relationship with Association 	representatives 	and 	some 	teachers
was 	at times 	acrimonious, 	she 	sometimes 	raised her voice when
dealing with 	teachers, 	and Association witnesses perceived her
as, 	among other things, 	stern, 	opinionated and uncompromising.
But 	even 	accepting 	the Association's 	description of 	Baker's
relationship with teachers, 	in the context of this 	record these
qualities 	do not 	create the kind of 	atmosphere which would
transform the 	cabinet minutes 	at 	issue here 	into 	a 	coercive 	or
29

threatening communication. 	In the 	ordinary give 	and 	take 	of
employer-employee relations, 	it 	is 	not unexpected that union
representatives 	and 	employees 	will 	encounter 	employer
representatives who are unyielding. 	Nor are 	sharp 	exchanges 	in
the 	labor relations 	context uncommon; 	voices 	are raised 	in the
heat of robust debate. 	Therefore, 	while Baker's relationship
with Association representatives 	and 	some 	teachers 	can 	fairly 	be
described as 	rocky at 	times, 	it does 	not 	follow that her conduct
constitutes 	the 	kind of 	extraordinary 	circumstances 	which 	tend 	to
cast 	the 	cabinet minutes 	in a more 	ominous 	light 	than they appear
on their 	face.
Testimony 	about 	teachers 	who 	transferred 	from 	Fitch 	Mountain
because 	they were 	intimidated by 	Baker does 	not 	alter 	this
conclusion. 	First, 	the testimony about why 	individual 	teachers
transferred is 	largely hearsay. 	Second, 	the only transferee who
testified was 	Toni 	Saunders. 	She 	said her transfer was prompted
by 	intimidation directed 	at her by Baker. 	Asked 	for an 	example
of 	an incident where Baker 	intimidated her, 	Saunders described a
scene where 	Baker entered 	a 	room where 	teachers were meeting.
She 	said Baker 	"did not 	sit down and 	she did not greet us, 	she
just 	listened 	for awhile." 	This 	certainly 	falls 	short 	of
establishing that 	there were wholesale 	transfers 	from Fitch
Mountain because teachers were 	intimidated by Baker. 	As 	such, 	it
similarly 	falls 	short 	of 	establishing 	the 	kind of 	coercive
atmosphere 	sufficient 	to 	transform the 	cabinet minutes 	into
unlawful 	communication under the 	EERA.
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CONCLUSION
Based on the 	foregoing findings of 	fact, 	conclusions of 	law
and the 	entire record herein, 	it 	is 	concluded that 	the District
breached 	its 	obligation to 	negotiate under the 	EERA when Baker
unilaterally 	implemented 	a 	policy 	requiring 	kindergarten 	teachers
to be present 	in their classrooms 	and 	supervise 	students 	from
7:50 to 8:05, 	in violation of 	section 3543.5(c). 	This conduct
interfered with the Association's 	right to 	represent 	its 	members
in their employment relations with the District, 	in violation of
section 3543.5(b). 	The 	same 	conduct 	interfered with 	individual
kindergarten teachers' 	rights 	to be represented by their 	chosen
representative 	in their 	employment 	relations 	with the 	District,
in violation of section 3543.5(a).
In addition, 	it 	is 	concluded that the distribution of the
cabinet 	minutes 	did 	not 	interfere with 	employee 	rights 	under 	the
EERA. 	Distribution was a mere mistake, 	and, 	under the totality
of 	the 	circumstances presented here, 	the express 	language of 	the
minutes 	cannot be 	read to 	carry a threat of 	reprisal 	or promise
of benefit. 	Accordingly, 	that portion of the complaint dealing
with distribution of 	the 	cabinet minutes 	is 	hereby dismissed.
REMEDY
Under section 3 541.5(c), 	the Board is given the power to
issue 	a 	decision and order directing 	the 	offending party 	to 	cease
and 	desist 	from the 	unfair practice 	and 	to 	take 	such affirmative
action as will 	effectuate the policies 	of the EERA. 	In this 	case
it has 	been 	found that the 	District breached 	its 	obligation to
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negotiate 	in good 	faith when 	it 	unilaterally 	implemented 	a policy
requiring 	kindergarten teachers 	to 	be present 	in their 	classrooms
and 	supervise 	students 	from 	7:50 	to 	8:05. 	This 	conduct violated
section 3543.5(c), (b) , and (a).
It 	is 	therefore appropriate to 	order the District 	to 	cease
and desist 	from 	such activity 	in the 	future, 	return to 	the 	status
quo which 	existed 	at 	Fitch Mountain Elementary 	School 	prior 	to
the unilateral change, 	and, 	upon request, 	meet and negotiate with
the Association prior to making 	future 	changes 	in negotiable
terms 	and conditions 	of 	employment.
In a 	long line of analogous 	cases, 	the Board has 	fashioned a
make whole 	remedy 	for 	employees 	affected by a unilateral 	change
in policy. 	Under this 	line of 	cases 	it 	is 	appropriate to order
the 	District 	to provide 	kindergarten teachers 	at 	Fitch Mountain
Elementary 	School 	affected by 	the 	change with an amount 	of 	time
off which 	corresponds 	with the 	additional work performed 	as 	a
result of 	the 	change. 	If 	the District and the Association cannot
agree on the manner 	in which compensatory time 	is 	granted,
affected 	employees 	shall 	be 	awarded 	monetary 	compensation
commensurate with the 	extra hours worked, 	at the rate of 	seven
(7) 	percent per annum. 	(Corning Union High School District,
supra? 	Victor Valley Union High School District, 	supra; 	Fountain
Valley Elementary School District, 	supra; 	Cloverdale Unified
School District,, 	supra.) 	Disputes regarding the 	implementation-
of 	the 	foregoing 	remedy will 	be 	resolved 	through 	the 	Board's
compliance procedures. 	(Corning Union High School 	District.
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supra: 	Victor Valley Union High School District, 	supra.)
It 	is 	further appropriate 	that 	the 	District be 	ordered to
post 	a 	notice 	incorporating the 	terms 	of 	the order herein.
Posting 	of 	such a notice, 	signed by an authorized agent 	of 	the
District, 	will provide employees with notice that the District
has 	acted 	in an unlawful manner, 	is being required to cease and
desist 	from this 	activity and will 	comply with the 	order. 	It
effectuates 	the purposes 	of 	the Act 	that 	employees 	be 	informed of
the 	resolution of 	the 	controversy 	and 	the 	District's 	readiness 	to
comply with 	the 	ordered remedy. 	(Placerville 	Union 	School
District 	(1978) 	PERB Decision No. 	69; 	Davis Unified School
District, 	et al. 	(1980) 	PERB Decision No. 	116.)
PROPOSED 	ORDER
Upon the 	foregoing findings of 	fact, 	conclusions 	of 	law, 	and
the 	entire record 	in the case, 	it 	is 	found that the Healdsburg
Union 	Elementary 	School 	District 	violated Government Code 	section
3543.5(c) 	of the Educational 	Employment Relations Act by
unilaterally 	implementing 	a 	policy 	requiring 	kindergarten
teachers 	to 	open 	their 	classrooms 	and begin 	supervising 	students
during the 	fifteen 	(15) 	minutes prior to the 	start of 	classes.
By the 	same 	conduct, 	it has 	been found that the District violated
section 3543.5(b) 	and 	(a). 	Pursuant to section 3541.5(c), 	it is
hereby ordered that 	the District, 	its 	governing board 	and 	its
representatives shall:
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A. 	CEASE AND DESIST FROM:
(1) 	Failing and refusing to meet 	and negotiate 	in 	good
faith with 	the 	Healdsburg Area 	Teachers 	Association 	concerning
the 	policy 	requiring 	kindergarten 	teachers 	to 	open 	their
classrooms 	and begin 	supervising 	students 	during the 	15 	minute
period prior to 	the 	start 	of 	classes.
(2) 	By the conduct described in paragraph 	(1), 	denying
Healdsburg Area 	Teachers Association the 	right 	to 	represent
employees 	in 	their 	employment 	relations with the 	Healdsburg 	Union
Elementary 	School 	District.
(3) 	By the conduct described in paragraph 	(1),
interfering with 	the 	employees 	in the 	exercise 	of 	the 	right 	to 	be
represented 	by 	the 	Healdsburg Area 	Teachers 	Association 	in 	their
employment 	relations 	with 	the 	Healdsburg 	Union Elementary 	School
District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
(1) 	Reinstate 	the practice which 	existed prior to
September 4, 	1991, 	concerning the requirement of kindergarten
teachers 	to 	open their 	classrooms 	and 	begin 	supervising 	students
during the 	15 	minutes prior to the 	start of 	classes, 	and upon
request, 	meet and 	negotiate 	any proposed 	change 	in the practice
with 	the 	Healdsburg Area 	Teachers Association.
(2) 	Grant 	to 	each kindergarten teacher the 	amount 	of
compensatory 	time 	off which 	corresponds 	to 	the 	number of 	extra
hours worked as 	a 	result 	of 	the unilateral 	change 	referred 	to 	in
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paragraph 	(1). 	Should the parties 	fail to reach agreement as 	to
the manner 	in which 	such 	compensatory time will 	be granted, 	then
such 	employees will 	be granted monetary compensation, 	at 	the 	rate
of 	seven 	(7) 	percent per annum, 	commensurate with the additional
hours 	worked.
(3) 	Within ten 	(10) 	workdays of the 	service of a final
decision 	in this 	matter, 	post 	at all work 	locations where 	notices
to 	certificated 	employees 	customarily are posted, 	copies 	of 	the
Notice 	attached hereto as 	an Appendix. 	The Notice must be 	signed
by 	an 	authorized 	agent 	of 	Healdsburg 	Union 	Elementary 	School
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 	ensure that the Notice 	is 	not reduced 	in 	size, 	altered,
defaced 	or 	covered with 	any 	other material.
(4) 	Upon issuance of 	a final decision, 	make written
notification of 	the 	actions 	taken to 	comply with 	the 	Order 	to
the 	San Francisco 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in accord with 	the 	Regional 	Director's
instructions.
Pursuant to California Code of Regulations, 	title 8,
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
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citation or exhibit number the portions 	of the record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	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 Cal. 	Code of
Regs., tit. 	8, 	sec. 	32135; Code Civ. 	P r o c , 	sec. 	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 Cal. 	Code of. Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
Fred 	D'Orazio
Administrative Law Judge
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