Grant Joint Union High School District (PERB 0196E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GRANT 	DISTRICT 	EDUCATION 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
GRANT 	JOINT 	UNION 	HIGH 	SCHOOL
DISTRICT,
Respondent.
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_________________ ____ )
Case 	No. 	S-CE-366
PERB 	Decision 	No. 	196
February 26, 	1982
Appea r ances: 	Kirsten 	L. 	Zerger, 	Attorney, 	and 	Brian Bertino
for 	Grant 	District 	Education 	Association, 	CTA/NEA.
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Moore, 	Members.
DECISION
The 	G rant 	Dist rict 	Education 	Association, 	CTA/NEA
(hereafter 	Association) 	excepts 	to 	the 	dismissal 	with 	leave 	to
amend 	of 	its 	charge 	against 	Grant 	Joint 	Union 	High 	School
District 	(hereafter 	District). 	The 	Association 	alleges 	that
the 	District 	engaged 	in 	conduct 	which 	violated 	terms 	of 	the
parties' 	collectively 	negotiated 	contract 	and 	also 	constituted
an 	unfair 	practice 	under 	subsections 	3543 . S(a), 	(b) 	and 	(c) 	of
the 	Educational 	Employment 	Relations 	Act 	(hereafter 	EERA 	or
Act).l
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq . 	All 	statutory 	references 	are 	to 	the 	California 	Government
Code 	unless 	otherwise 	stated.

The 	hearing 	officer 	dismissed 	the 	charge, 	finding 	that 	the
Public 	Employment 	Relations 	Board 	(hereafter 	PERB 	or 	Board) 	is
without 	jurisdiction 	to 	hear 	the 	case.
We 	reverse 	the 	hearing 	officer's 	proposed 	decision 	in 	part
and 	affirm 	it 	in 	part,consistent 	with 	the 	discussion 	below.
FACTS
The 	Association 	alleges 	that 	the 	District 	breached 	three
separate 	terms 	of 	the 	parties' 	collective 	agreement.2 	Such
conduct, 	it 	argues, 	constitutes 	a 	unilateral 	modification 	of
the 	agreement 	and 	a 	repudiation 	of 	a 	negotiable 	subject 	matter
in 	violation 	of 	subsection 	3543.S(c).
Since 	the 	employer 	conduct 	which 	forms 	the 	basis 	of 	the
Association's 	charge 	is 	also 	a 	breach 	of 	the 	parties'
collective 	agreement, 	the 	hearing 	officer 	found; 	pursuant 	to
his 	interpretation 	of 	subsection 	3541.S(b), 	that 	the 	Board 	has
no 	jurisdiction 	over 	the 	case.3 	Accordingly, 	the 	charge 	was
dismissed. 	The 	Association 	appeals 	this 	dismissal, 	arguing
that 	PERB 	does 	have 	jurisdiction 	over 	the 	case.
The 	three 	breaches 	of 	contract 	which 	the 	Association
alleges 	are 	as 	follows:
2The 	Association 	also 	charged 	that 	the 	District 	violated
subsections 	3543.S(a}, 	(b), 	and 	(c) 	by 	bypassing 	it 	as
exclusive 	representative 	and 	subsections 	3543.S(b) 	and 	(c) 	by
engaging 	in 	surface 	bargaining. 	The 	Association 	does 	not
appeal 	the 	hearing 	officer's 	dismissal 	of 	these 	charges.
3subsection 	3541.S(b) 	is 	quoted 	in 	full 	at 	p. 	7, 	infra.
2

A.
	The
	Transfer 	rssue
The
	Association
	and
	the
	District
	entered
	into
	a
	collective
agreement
	on
	September
	5,
	1979.
	On
	April
	28,
	1980,
	the
Association
	and
	the
	District
	executed
	a
	side
	agreement
concerning
	layoff
	and
	transfer
	policy. 	section
	1
	of
	the
agreement
	provides 	the 	following 	procedure 	for 	the
	filling
	of
vacancies:
1.	
VACANCIES
1.1	
vacancies
	shall
	be
	posted
	starting
	not
later
	than
	May
	1st
	and
	updated
	at 	least
weekly.
	Applications
	must 	be
	submitted,
in
	writing, 	to
	the
	building
	principal
	or
district
	within
	forty-eight
	(48)
	hours
	of
the
	time
	of 	the 	posting 	of 	the
	notice.
1.2 	vacancies
	shall
	be
	open
	to
	all
	bargaining
unit
	members
	to
	apply.
	(Emphasis
	added.)
1.3 	vacancies
	shall
	be
	all
	vacancies,
including 	those
	created
	by
	program
reductions,
	(i.e.,
	such
	as,
	but 	not
limited 	to,
	the
	movement
	of
	9th 	grade
	to
the 	high 	school
	and
	closing 	junior
	high
schools)
.
The
	Association
	alleges 	that 	after
	several 	postings 	of
vacancies
	were 	made,
	in 	accordance 	with 	the 	terms 	of 	the
agreement, 	the
	District
	began
	posting 	the 	following
	notice:
Note:
	You
	are
	encouraged
	to 	continue 	to 	apply
for 	the
	currently
	posted
	positions
	even 	though
you
	may
	have
	applied 	for 	the
	same
	subject 	area
position
	on
	a
	previous 	posting
	--
	unless
	you
have 	been
	recently 	notified
	of
	a 	new
assignment 	for 	1980-81 	school 	year.
The
	Association 	alleges 	that
	such 	posting
	had
	the 	purpose
and
	effect 	of 	preventing 	the
	more
	senior 	teachers
	from
	gaining
access 	to 	vacancies 	and 	thereby 	constituted
	a
	unilateral
	change
3

in 	policy. 	Additionally, 	the 	Association 	alleges: 	(1) 	that,
as 	further 	indication 	of 	the 	District's 	intent 	to 	narrow
eligibility, 	principals 	at 	certain 	schools 	were 	not 	posting 	the
availability 	of 	existing 	vacancies 	until 	certain 	unit 	members,
who 	were 	otherwise 	qualified 	for 	such 	positions, 	had 	received
assignment 	and, 	(2) 	that 	the 	principals 	"guaranteed 	better
jobs" 	to 	some 	less 	senior 	teachers, 	corroborating 	the 	claim
that 	the 	more 	senior 	teachers 	would 	be 	precluded 	from 	competing
for 	such 	positions.
B. 	Contingen~y 	Pay 	Issue
Article 	X, 	section 	3 	of 	the 	collective 	agreement 	states:
The 	Association 	and 	the 	Public 	School
Employer 	agree 	to 	review 	the 	income 	and
expenditures 	of 	the 	district 	on 	or 	about
June 	1, 	1980, 	to 	determine 	if 	additional
monies 	are 	available 	for 	members 	represented
by 	the 	unit 	subject 	to 	the 	following
conditions:
a. 	Income 	would 	include 	all
non-categorical 	or 	non-restricted
sources 	beyond 	the 	amounts 	included 	in
the 	adopted 	budget 	of 	the 	district. 	It
is 	specifically 	recognized 	that 	Adult
Education 	is 	one 	of 	the 	several
categorical 	programs 	exempted 	from 	such
review.
b. 	Under 	no 	circumstances 	will 	the
district's 	general 	reserve 	fall 	below
$400,000 	in 	order 	to 	make 	additional
funds 	available 	for 	distribution 	to
members 	represented 	by 	the 	unit.
c. 	The 	general 	reserve 	of 	the 	district
must 	also 	include 	provision 	for 	any
legal 	action 	which 	may 	be 	adverse 	to
the 	district 	prior 	to 	distributing 	any
additional 	income 	to 	members
represented 	by 	the 	unit.
4

d. 	Any 	additional 	income 	distribution 	will
be 	one 	time 	only 	for 	the 	1979-80 	school
year 	and 	will 	not 	represent 	a 	permanent
addition 	to 	the 	certificated 	salary
schedules 	for 	members 	represented 	by
the 	unit.
e. 	Upon 	examination 	of 	all 	non-categorical
or 	non-restricted 	fund 	balances, 	sixty
percent 	(60.0%) 	of 	any 	excess 	funds
will 	be 	subject 	to 	distribution 	to
members 	by 	the 	unit.
f. 	Such 	review 	of 	expenditures
specifically 	recognizes 	that 	contingent
liabilities 	will 	be 	deducted 	from 	any
excess 	funds 	prior 	to 	distribution 	to
any 	members 	of 	the 	unit.
The 	District 	will 	make 	available 	to 	the 	GDFA
such 	public 	records 	as 	may 	be 	required 	to
implement 	this 	review 	process.
Beginning 	in 	June 	of 	1980, 	representatives 	of 	the 	District
and 	the 	Association 	met 	to 	review 	the 	financial 	situation 	of
the 	District. 	After 	several 	meetings, 	the 	District 	announced
that, 	in 	accordance 	with 	the 	terms 	of 	Article 	X, 	the 	members 	of
the 	bargaining 	unit 	were 	entitled 	to 	60 	percent 	of 	$33,284.
The 	Association 	alleges 	that 	the 	contract 	allows 	the
District 	to 	spend 	its 	surplus 	only 	on 	"adverse 	legal 	action 	or
other 	contingent 	liabilities." 	Thus 	it 	contends 	that 	the
District 	unilaterally 	expended 	funds 	for 	non-authorized
purposes 	and 	therefore, 	the 	bargaining 	unit 	members 	were
entitled 	to 	60 	percent 	of 	$96,680.27.
5

c.
	The
	Duration 	of 	Health
	Benefits 	Issue
Article
	XI
	of 	the
	collective
	agreement
	provides:
1.	
For
	all
	participating
	employees:
a.	
The
	employer
	shall
	provide 	the
following 	insurance
	benefits
	for
employees
	represented
	by
	the
	unit:
(1) 	The
	employee's
	contribution
	for
medical
	insurance 	to
	one
	of 	the
following
	plans:
	Blue
	Cross,
Kaiser,
	or
	Healthcare.
(2)	
The
	employee's
	contribution
	forDental
	Insurance.
(3) 	The
	cost
	of 	the 	employee's
decreasing
	Term-Life
	Insurance
Program
	to
	a 	maximum
	of
	$7.50
	per
month.
8.	
Duration 	of
	Benefits
a.	
The
	benefits
	provided 	in
	this 	Article
shall
	remain
	in
	effect
	during 	the
	term
of
	this
	Agreement. 	Should
	an
employee's
	employment
	terminate(excluding
	retirement) 	during 	the
school
	year,
	he/she
	shall
	be
	entitled
to 	continue
	coverage 	under
	the
	Life,Health,
	and
	Dental 	Insurance 	plans 	for
a
	period 	not 	to
	exceed
	six
	(6)
	months
if
	allowed
	by
	the
	carrier.
	Such
employee
	shall
	pay
	the
	premium
	for 	the
continued 	coverage
	on
	a
	month-to-month
basis.
b. 	Should 	an
	employee's
	employment
terminate 	following 	the
	last	
day
	of 	the
school 	vear
	and
	before 	the
	commencement
of 	the 	ensuing 	school 	year,
	such
employee
	shall
	be
	entitled
	to 	continuecoverage 	under 	the 	Life, 	Health,
	and
Dental 	Insurance 	plans
	until
	October
	1,of 	the	
ensuing 	school 	year
	if	
allowedby 	the	
carrier.
	Such 	employee	
shall
pay 	the 	premium 	for 	the 	continued
coverage 	on 	a
	month-to-month 	basis.
6

On March 	15, 	1980, 	the 	District 	laid 	off 	64 	bargaining 	unit
members. 	Soon 	thereafter, 	it 	sent 	letters 	to 	the 	laid-off
employees 	announcing 	that, 	since 	their 	employment 	was 	to 	end 	on
June 	30, 	1980, 	their 	health 	benefits 	would 	cease 	unless 	they
assumed 	the 	cost 	of 	the 	premiums 	themselves. 	The 	Association
contends 	that 	under 	the 	terms 	of 	the 	parties' 	contract, 	the
District 	was 	responsible 	for 	payment 	of 	the 	insurance 	premiums
on 	behalf 	of 	laid-off 	employees 	for 	the 	agreement's 	duration.
The 	Association 	alleges 	that, 	by 	requiring 	all 	laid-off
employees 	to 	assume 	the 	obligation 	to 	pay 	their 	own 	health
insurance 	premiums, 	the 	District 	unilaterally 	initiated 	a
policy 	concerning 	a 	matter 	within 	the 	scope 	of 	representation
which 	violated 	its 	duty 	to 	negotiate 	in 	good 	faith.
DISCUSSION
Subsection 	3541.S(b) 	states:
The 	board 	shall 	not 	have 	authority 	to
enforce 	agreements 	between 	the 	parties, 	and
shall 	not 	issue 	a 	complaint 	on 	any 	charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
(Emphasis 	added.)
The 	hearing 	officer's 	error 	lies 	in 	failing 	to 	acknowledge
that 	portion 	of 	subsection 	3541.S(b) 	which 	is 	emphasized
above. 	Contrary 	to 	the 	hearing 	officer's 	interpretation,
subsection 	3541.S(b) 	does 	not 	divest 	PERB 	of 	jurisdiction 	to
resolve 	an 	unfair 	practice 	charge 	simply 	because 	the 	employer's
conduct 	also 	constitutes 	the 	breach 	of 	an 	existing 	collective
7

agreement. 	Rather, 	subsection 	3541.S(b) 	grants 	PERB 	the
authority 	to 	resolve 	an 	unfair 	practice 	charge 	even 	if 	it 	must
interpret 	the 	terms 	of 	a 	collective 	agreement 	to 	do 	so. 	There
is, 	of 	course, 	no 	doubt 	that 	in 	the 	absence 	of 	a 	collective
agreement 	PERB 	has 	jurisdiction 	over 	all 	conduct 	which
allegedly 	violates 	the 	Act. 	That 	such 	conduct 	might 	also
breach 	an 	existing 	agreement 	does 	not 	defeat 	the 	Board's
jurisdiction, 	though 	it 	may 	give 	rise 	to 	a 	separate 	remedy 	for
breach 	of 	contract. 	Victor 	Valley 	Joint 	Union 	High 	School
District 	(12/31/81) 	PERB 	Decision 	No. 	192; 	C & C Plywood
~~!Eoration 	(1967) 	385 	U.S. 	421 	[64 	LRRM 	2065] .4
The 	Act 	is 	designed 	to 	foster 	the 	negotiation 	process.
Such 	a 	policy 	is 	undermined 	when 	one 	party 	to 	an 	agreement
changes 	or 	modifies 	its 	terms 	without 	the 	consent 	of 	the 	other
party. 	PERB 	is 	concerned, 	therefore, 	with 	a 	unilateral 	change
in 	established 	policy 	which 	represents 	a 	conscious 	or 	apparent
reversal 	of 	a 	previous 	understanding, 	whether 	the 	latter 	is
embodied 	in 	a 	contract 	or 	evident 	from 	the 	parties' 	past
practice. 	Anaconda Aluminum Co. 	(1966) 	160 	NLRB 	35 	[62 	LRRM
1370], 	!:_erry 	Rubber 	Co. 	{1961) 	133 	NLRB 	275, 	[48 	LRRM 	1630].
4rt 	is 	appropriate 	for 	the 	Board 	to 	take 	guidance 	from
federal 	labor 	law 	precedent 	when 	applicable 	to 	public 	sector
labor 	relations 	issues. 	Firefighters 	Union, 	Local 	1186 	v. 	City
of Vallejo 	(1974) 	12 	Cal.3d 	608 	[116 	Cal.Rptr. 	507]; 	Los
Angeles 	County 	Civil 	Service .commission 	v. 	Superior 	Court
(1978) 	23 	Cal.3d 	65 	[151 	Cal.Rptr. 	547].
8

In 	the 	words 	of 	the 	National 	Labor 	Relations 	Board:
... 	[Such] 	conduct, 	. 	[amounts] 	to 	a
rejection 	of 	the 	most 	basic 	of 	collective
bargaining 	principles 	... 	the 	acceptance
and 	implementation 	of 	the 	bargaining 	reached
during 	negotiations. 	Sea 	Bay 	Manor 	Home
(1980) 	253 	NLRB 	68 	[106 	LRRM 	1010, 	1012].
This 	is 	not 	to 	say 	that 	every 	breach 	of 	contract 	also
violates 	the 	Act. 	Such 	a 	breach 	must 	amount 	to 	a 	change 	of
policy, 	not 	merely 	a 	default 	in 	a 	contractual 	obligation,
before 	it 	constitutes 	a 	violation 	of 	the 	duty 	to 	bargain. 	This
distinction 	is 	crucial. 	A change 	of 	policy 	has, 	by 	definition,
a 	generalized 	effect 	or 	continuing 	impact 	upon 	the 	terms 	and
conditions 	of 	employment 	of 	bargaining 	unit 	members. 	On 	the
other 	hand, 	when 	an 	employer 	unilaterally 	breaches 	an 	agreement
without 	instituting 	a 	new 	policy 	of 	general 	application 	or
continuing 	effect, 	its 	conduct, 	though 	remediable 	through 	the
courts 	or 	arbitration, 	does 	not 	violate 	the 	Act. 	The 	evil 	of
the 	employer's 	conduct, 	therefore, 	is 	not 	the 	breaching 	of 	the
contract 	per 	se, 	but 	the 	altering 	of 	an 	established 	policy
mutually 	agreed 	upon 	by 	the 	parties 	during 	the 	negotiation
process. 	Walnut 	Valley 	Unified 	School 	District 	(3/30/81) 	PERB
Decision 	No. 	160; 	C & S 	Industries 	(1966) 	158 	NLRB 	454 	[62 	LRRM
1043]. 	By 	unilaterally 	altering 	or 	reversing 	a 	negotiated
policy, 	the 	employer 	effectively 	repudiates 	the 	agreement. 	Sea
Bay Manor 	Home, 	~ra.
In 	order 	to 	set 	aside 	the 	hearing 	officer's 	dismissal 	of
the 	unfair 	practice 	complaint, 	it 	must 	be 	found 	that 	the
9

charging 	party 	has 	stated 	a 	prima 	facie 	violation 	of 	the
Act.5 	A prima 	facie 	case 	will 	be 	successfully 	stated 	if 	the
Association's 	complaint 	alleges 	facts 	sufficient 	to 	show: 	(1)
that 	the 	District 	breached 	or 	otherwise 	altered 	the 	parties'
written 	agreement 	with 	regard 	to 	transfers, 	contingency 	pay, 	or
the 	duration 	of 	health 	benefits; 	and 	(2) 	that 	those 	breaches
amounted 	to 	a 	change 	of 	policy; 	that 	is, 	that 	they 	had 	a
generalized 	affect 	or 	continuing 	impact 	upon 	the 	terms 	and
conditions 	of 	employment 	of 	bargaining 	unit 	members.6
5When 	determining 	whether 	a 	charge 	states 	a 	prima 	facie
violation 	of 	the 	Act, 	the 	facts 	alleged 	are 	deemed 	to 	be 	true.
San 	Juan 	Unified 	School 	District 	(3/10/77) 	EERB 	Decision
No. 	12. 	Prior 	to 	January 	1, 	1978, 	PERB 	was 	called 	the
Educational 	Employment 	Relations 	Board 	(EERB).
6The 	charging 	party must 	also 	show 	that 	the 	alleged
change 	concerned 	a 	matter 	within 	the 	scope 	of 	representation.
Since 	the 	parties 	do 	not 	dispute 	the 	negotiability 	of 	these
issues, 	we 	assume 	them 	to 	be 	within 	the 	scope 	of 	representation
within 	the 	meaning 	of 	section 	3543.2. 	That 	section 	states:
The 	scope 	of 	representation 	shall 	be 	limited
to 	matters 	relating 	to 	wages, 	hours 	of
emolovment. 	and 	other 	terms 	and 	conditions
of-em~loym~nt. 	"Terms 	and 	conditions 	of
employment" 	mean 	health 	and 	welfare 	benefits
as 	defined 	by 	Section 	53200, 	leave, 	transfer
and 	reassignment 	policies, 	safety 	conditions
of 	employment, 	class 	size, 	procedures 	to 	be
used 	for 	the 	evaluation 	of 	employees,
organizational 	security 	pursuant 	to
Section 	3546, 	procedures 	for 	processing
grievances 	pursuant 	to 	Sections 	3548.5,
3548.6, 	3548.7, 	and 	3548.8, 	and 	the 	layoff
of 	probationary 	certificated 	school 	district
employees, 	pursuant 	to 	Section 	44959.5 	of
the 	Education 	Code. 	In 	addition, 	the
exclusive 	representative 	of 	certificated
10

personnel 	has 	the 	right 	to 	consult 	on 	the
definition 	of 	educational 	objectives, 	the
determination 	of 	the 	content 	of 	courses 	and
curriculum, 	and 	the 	selection 	of 	textbooks
to 	the 	extent 	such 	matters 	are 	within 	the
discretion 	of 	the 	public 	school 	employer
under 	the 	law. 	All 	matters 	not 	specifically
enumerated 	are 	reserved 	to 	the 	public 	school
employer 	and 	may 	not 	be 	a 	subject 	of 	meeting
and 	negotiating, 	provided 	that 	nothing
herein 	may 	be 	construed 	to 	limit 	the 	right
of 	the 	public 	school 	employer 	to 	consult
with 	any 	employees 	or 	employee 	organization
on 	any 	matter 	outside 	the 	scope 	of
representation.
We 	find 	that 	only 	as 	to 	the 	transfer 	issue 	does 	the
Association 	state 	a 	prima 	facie 	violation 	of 	the 	Act. 	As 	to
the 	other 	two 	issues, 	the 	Association 	pleads 	no 	facts 	which
arguably 	constitute 	a 	change 	of 	policy.
With 	respect 	to 	the 	transfer 	issue, 	the 	Association 	alleges
that 	the 	District's 	decision 	to 	prohibit 	previously 	assigned
teachers 	from 	applying 	for 	vacancies 	directly 	conflicted 	with
section 	1.2 	of 	the 	negotiated 	side 	agreement, 	which 	specifies
that 	vacancies 	"shall 	be 	open 	to 	all 	bargaining 	unit 	members."
Since, 	by 	its 	terms, 	the 	need-not-apply 	notice 	was 	directed 	to
all 	employees 	who, 	when 	vacancies 	arose, 	had 	already 	been
assigned 	to 	a 	position 	for 	the 	1980-81 	academic 	year, 	the
District's 	conduct 	would, 	by 	necessity, 	have 	a 	continuing
impact 	on 	the 	bargaining 	unit. 	Therefore, 	its 	conduct, 	if
11

true,
	would
	constitute
	the 	adoption 	of
	a 	new
	policy
	of
	general
application
	in
	conflict
	with
	the
	parties'
	negotiated
agreement.
	Anaconda
	Aluminum
	Co.,
	supra; 	Perry
	Rubber
	Co.,
supra.
We
	therefore
	find
	that
	the
	Association
	has
	stated
	a
	prima
facie
	violation
	of 	the
	Act,
	and
	we
	reverse
	the 	hearing
officer's
	proposed
	decision
	as
	to
	that
	portion
	of 	the 	charge
concerning 	the
	change
	in
	transfer
	policy.
With
	respect 	to
	the 	contingency
	pay 	and
	health
	benefits
issues,
	we
	find
	that
	the 	Association
	has
	failed
	to 	allege
	any
unilateral
	change
	in
	District
	policy.
The
	Association 	claims
	that
	the
	District
	repudiated
Article
	X
of
	the
	agreement
	concerning 	contingency 	pay.
However,
	the
	facts 	asserted
	by
	the 	Association
	actually
challenge 	the
	District's
	application
	of 	the
	contract's
provision.
	The
	District
	does
	not
	deny
	its
	contractual
obligation
	but 	claims
	it
	properly
	implemented
	the
	provision
both 	as
	to
	the
	use
	and
	the
	amount
	of 	the
	surplus
	funds.
	We
find	
in	
these
	competing
	claims 	nothing
	which
	demonstrates
	a
"policy 	change."
Unlike
	Article
	X,
	Article
	XI
	of 	the
	collective
	bargaining
agreement, 	dealing 	with
	health 	benefits, 	is
	unambiguous 	on
	its
face	
and	
does 	not 	support	
the	
Association's 	allegations.
Section 	8(b) 	of 	Article
	XI,
	expressly 	provides 	that
	a
	separated
employee
	desiring 	to 	continue 	insurance 	coverage
	after 	his 	or
12

her
	date
	of
	separation
	"shall
	pay
	the
	premium
	for 	the
	continued
coverage
	on
	a
	month-to-month
	basis."
	There
	are
	no
	facts
	pled
which
	reveal
	an
	agreement 	between
	the
	parties 	that
	laid-off
persons,
	who
	wish
	to
	maintain
	health
	insurance 	coverage,
	do
	not
have
	to
	pay
	monthly 	premiums.
ORDER
Upon
	the 	foregoing
	decision
	and
	the
	entire
	record 	in
	this
case,
	the 	Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
hearing
	officer's
	dismissal
	of
	that
	portion
	of 	the 	charge
concerning
	employee
	transfers
	is
	reversed
	and 	remanded
	to 	the
chief 	administrative
	law
	judge
	for
	a
	hearing 	or
	other
resolution
	of
	this
	matter 	according 	to
	PERB
	procedure.
	Those
portions
	of 	the 	charge 	concerning 	contingency
	pay 	and
	duration
of 	health 	benefits
	are
	DISMISSED.
'di	
, 	'
By:
	John
	W.
	Jaeger,
	Member
Barbara
	D.
	Moore's 	concurrence 	begins
	on 	page 	14.
13

Barbara 	D. 	Moore, 	Member, 	concurring:
While 	I 	concur 	in 	the 	results 	reached 	by 	the 	majority, 	I
find 	the 	standard 	it 	proposes 	unworkable 	and 	I 	disagree 	in
certain 	other 	particulars.
First, 	I 	reject 	the 	majority's 	characterization 	of 	the
hearing 	officer's 	interpretation 	of 	subsection 	3541.5(b) 	of 	the
Act. 	Rather 	than 	concluding 	that 	PERB 	was 	divested 	of 	its
jurisdiction 	because 	the 	employer's 	conduct 	also 	constituted 	a
breach 	of 	the 	parties' 	agreement, 	the 	hearing 	officer 	found
that 	the 	conduct 	was 	not 	otherwise 	an 	unfair 	but 	was 	merely 	a
contract 	dispute. 	While 	I 	am 	not 	in 	accord 	with 	this 	view, 	it
did 	not 	entail 	a 	misapplication 	of 	the 	statutory 	language.
Second, 	I 	disagree 	with 	the 	standard 	used 	by 	the 	majority
to 	distinguish 	mere 	breaches 	of 	contract 	from 	unfair 	practice
charges. 	The 	majority 	would 	entertain 	those 	unfair 	practice
charges 	which 	allege 	a 	unilateral 	change 	involving 	a 	"new
policy 	of 	general 	application" 	having 	"a 	generalized 	effect 	or
continuing 	impact." 	I 	find 	this 	standard 	unworkable.
Requiring 	that 	the 	unilateral 	change 	have 	a 	continuing
impact 	imposes 	no 	limitation 	nor 	does 	it 	afford 	any 	guidance.
Any 	change 	necessarily 	continues 	to 	alter 	existing- conditions
to 	the 	extent 	that 	it 	remains 	in 	effect 	~R 	~ 	~hange. 	I 	also
reject 	the 	requirement 	that 	the 	altered 	policy 	have 	a
generalized 	applicaton. 	In 	fact, 	in Walnut 	Valley 	Unified
School 	District 	(3/30/81) 	PERB 	Decision 	No, 	160 	cited 	by 	the
14

majority,
	this
	Board
	entertained
	as
	an
	unfair
	practice
	a
	charge
that
	unlawful 	overtime 	assignments
	were 	made
	to
	four
	individual
employees.I	
It
	continues
	to
	be
	my
	view
	that
	a
	unilateral
change
	may
	be 	an
	unfair
	practice
	if
	it
	impacts
	on 	a
	portion 	of
the
	negotiating 	unit.2
The
	essense
	of
	my
	disagreement,
	however,
	lies
	with
	the
majority's
	determination
	that,
	by
	characterizing
	the
	matter
	at
issue
	as
	a
	change
	in
	"policy,"
	we
	can
	thereby
	identify
	it
	as
	an
unfair
	practice.
	Since 	the
	majority
	has
	failed
	to 	provide
	any
assistance
	in
	identifying
	what
	constitutes
	a
	"policy,"
	I
	doubt
the 	Board's
	ability
	to
	apply
	this 	test
	with
	consistency
	or 	with
sufficient 	predictability
	to
	guide 	the
	parties.
	Cases
	relied
on
	in 	the
	majority 	opinion 	are 	of
	no
	assistance
	since
	they
	do
not
	rely
	on 	a
	"policy" 	standard.
	C & 	S
	Industr!_~§
	(1966) 	158
NLRB
	454 	[62
	LRRM
	1043],
	for
	example,
	is 	cited
	by
	the
	majority
lcontrary
	to 	the 	impression
	raised
	by
	the
	majority'sopinion,
	Walnut
	Valley
	does
	not,
	nor
	was
	it
	intended
	to,
	set
forth
	a
	standard
	by 	which
	the
	Board 	would
	distinguish 	unfair
practice
	claims
	from
	contract 	violations.
	The
	issue 	in
	Walnut
Valley
	was
	whether 	the 	assignment
	of 	overtime 	to
	four
individual
	employees
	violated 	subsection
	3543.S(c)
	by
	bypassing
the 	exclusive 	representative.
	The 	Board 	found
	that
	no
	unlawfulconduct 	occurred 	because 	the 	overtime 	assignments
	were
	directedin
	accordance 	with 	the 	provisions 	of 	the
	parties' 	contract.
Thus,
	it
	was
	unnessary 	to 	reach 	the 	issue 	addressed 	herein.
2
see 	GarljndhDisttAbu~in~
_g_o:rprns
	(1978}
	?34
	NLRB
	1275
[98
	LRRM
	1197
	were
	e
	at1ona
	a
	or 	Relations
	Board,
finding
	an
	unfair 	labor 	practice,
	held 	that
	the 	employer's
failure 	to 	apply 	the 	prohibitions 	of 	the
	work
	preservation
clause 	of 	the 	contract 	to
	one
	individual 	"involves
	more
	than
	a
simple 	default 	in
	a
	contractual 	obligation."
15

to 	suggest
	that
	the 	National
	Labor
	Relations
	Board
	(hereafter
NLRB)
	examines
	the
	employer's
	conduct
	to
	determine
	whether
	it
altered
	an
	established 	policy.
	In
	fact,
	the
	decision 	in
	C & 	S
Industries
	does
	not
	speak
	in
	terms
	of
	policy
	at
	all.
	As
	the
NLRB
	stated
	in
	that
	case:
While
	it
	is
	true
	that
	a
	breach
	of
	contract
is
	not 	ipso
	facto
	an
	unfair
	labor
	practice,
it
	does
	not 	follow
	from
	this 	that
	where
given 	conduct
	is
	of
	a
	kind
	otherwise
condemned 	by
	the 	Act,
	it
	must
	be
	ruled 	out
as
	an
	unfair
	labor
	practice
	simply
	because
it
	happens
	also
	to
	be 	a
	breach
	of
	contract.
Of
	course,
	the 	breadth
	of 	section
	8(d)
	is
not
	such
	as
	to
	make 	any
	default
	in
	a
contract 	obligation
	an
	unfair 	labor
practice,
	for
	that 	section,
	to
	the
	extent
relevant 	here,
	is
	in
	terms
	confined 	to 	the
"modification" 	or
	"termination" 	of
	a
contract.
	But
	there
	can
	be
	little
	doubt
that
	where 	an
	employer
	unilaterally-effects
a
	change
	which
	has
	a
	continuing
	imoact
	on 	a
basic
	term 	or
	condition 	of
	emeloyment,
	wages
for
	example,
	more
	is
	involved 	than
	just
	a
simple
	default
	in
	a
	contractual 	obligation.
Such 	a
	change
	manifestly
	constitutes
	a
"modification" 	within
	the
	meaning
	of 	section
8(d).
	And
	if
	not
	made
	in
	compliance 	with
the 	requirements 	of
	that 	section,
	it
violates
	a
	statutory
	duty 	the
	redress 	of
which 	becomes 	a
	matter 	of
	concern
	to 	theBoard.
	hasis
	added,
	footnote
omitted.]
[Emp
3
In 	accordance 	with
	this
	view,
	I 	would
	follow 	the
	NLRB
1 s
approach
	which
	reserves 	to 	the 	administrative
	agency
jurisdiction
	over
	contract 	violations	
which	
are
	substantial
infringements
	on
	statutory 	rights.
3
section 	8(d) 	of 	the 	National
	Labor
	Relations 	Act
expressly 	declares 	that 	neither 	party 	to
	a
	contract 	is 	required
to 	discuss 	or 	agree 	to 	any
	modification 	of 	contract 	terms.
16

As
	more
	recently
	stated
	by
	the
	NLRB
	in
	Sea
	Bay Manor
	Home
(1980)
	253
	NLRB
	No. 	68
	[106
	LRRM
	1010):
[W]hile
	the
	Board
	does
	not
	have
	general
jurisdiction
	to
	entertain
	questions
concerning
	contract
	interpretation
	or
	to
determine 	the
	extent 	of
	the
	parties'
contractual
	rights,
	it
	is
	the 	Board's
obligation
	to
	protect
	the
	process
	by
	which
employers
	and
	unions
	may
	reach 	agreements
with
	respect
	to
	terms
	and
	conditions 	of
employment.
	And, 	where
	the 	breach
	of
contract 	substantially 	infringes
	on
	the
statutory 	rights
	of
	a
	bargaining
representative
	or
	amounts
	to
	a
	substantial
renunciation 	of
	the
	principles
	of
	collective
bargaining,
	the
	Board
	has
	found
	a
	violation
of
	the 	Act.
	[Emphasis
	added.]4
The ,NLRB
	approach
	strikes
	a
	balance
	between
	acceptance
	of
every
	contract 	violation
	case
	artfully
	pled 	to
	allege
	a
unilateral
	change
	and
	refusal
	to 	accept
	any
	unfair
	practice
complaint
	that 	also
	involves
	contract 	violations.
	I 	would
adopt
	that
	standard.
In
	this 	instant
	case,
	I
	find
	that
	the
	Association
	has
established
	a
	prima
	facie
	case 	as 	to 	the
	transfer 	issue.	
The
Association
	has
	alleged
	that
	the
	District 	deliberately
repudiated 	the
	transfer
	article
	of 	the
	parties'
	contract	
by
restricting 	eligibility	
for 	vacant
	positions	
and	
preventing
senior 	teachers
	from
	seeking
	some	
of
	the	
"better 	jobs."
	If
proven, 	the	
District's 	institution
	of
	a 	new
	transfer 	policy
4The
	majority's 	opinion
	at	
page 	9
	also 	includes 	quoted
material
	from	
this 	case.	
However,
	the 	quotation 	is 	dicta	
and
does 	not 	.represent 	the	
NLRB
1 s
	articulation 	of
	itsjurisdictional 	standard.
17

would 	amount 	to 	a 	substantial 	renunciation 	of 	the 	principles 	of
collective 	negotiations 	in 	that 	it 	unilaterally 	altered 	a 	basic
term 	and 	condition 	of 	employment. 	Such 	action 	would 	constitute
a 	substantial 	infringement 	on 	the 	statutory 	rights 	of 	the
exclusive 	representative 	and 	the 	employees 	it 	represents.
Thus, 	this 	case 	represents 	a 	situation 	similar 	to 	that 	in
Anaconda 	Aluminum 	Co. 	(1966) 	160 	NLRB 	35 	[62 	LRRM 	1370] 	and 	is
an 	appropriate 	case 	for 	us 	to 	entertain. 	I 	would 	therefore
remand 	the 	case 	for 	hearing.
Utilizing 	the 	same 	test, 	I 	find 	that 	the 	Association 	did
not 	allege 	facts 	sufficient 	to 	constitute 	an 	unfair 	practice 	on
either 	the 	health 	benefits 	or 	contingency 	pay 	issues. 	Both
issues 	are 	simply 	disputes 	over 	the 	contractual 	rights 	and
obligations 	of 	the 	parties, 	and 	I 	would 	dismiss 	both 	charges.
~arbara 	D. 	Moore, 	Member
18