San Bernardino City Unified School District (PERB 0255E)

STATE OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN BERNARDINO 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
SAN 	BERNARDINO CITY 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-509
PERB Decision No. 	255
October 29, 	1982
Appearances; 	A. 	Eugene Huguenin, Jr., Attorney for
San Bernardino Teachers Association, 	CTA/NEA; 	Ronald C. 	Ruud,
Attorney 	(Atkinson, 	Andelson, 	Ruud 	& Romo) 	for 	San Bernardino
City 	Unified 	School 	District.
Before Gluck, 	Chairperson; 	Tovar and Jensen, Members.
DECISION
JENSEN, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(hereafter 	PERB or 	Board) 	on exceptions 	filed
by 	both 	the 	San 	Bernardino 	City Unified 	School 	District
(hereafter 	District) 	and 	the 	San Bernardino Teachers
Association, CTA/NEA 	(hereafter Association). 	The Association
also 	filed 	a 	response 	to 	the 	District's 	exceptions. 	The
proposed 	decision 	of 	the 	hearing 	officer 	is 	incorporated 	by
reference herein. 	In that proposed 	decision, 	the hearing
officer 	concluded 	that 	the 	District 	did 	not 	violate 	subsection
3543.5(a) 	by 	its 	unilateral adoption of 	its 	"Certificated 	Rules
of Conduct." 	The 	hearing 	officer 	found 	that 	certain 	rules,
specifically Rules 	2.1, 	2.2, 	2.4-2.6 	and 	4.6., 	were 	negotiable,
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but 	that 	these 	particular 	rules 	were 	consistent 	with 	the
parties' negotiated 	agreement. 	Further, 	he 	found 	that 	the
District did violate subsections 3543.5(a), 	(b) 	and 	(c)1 of
the 	Educational Employment 	Relations Act 	(hereafter 	EERA or 	the
Act) 	with 	regard 	to 	the 	adoption of Rule 	2.3, 	because 	the 	rule,
by 	its 	language, 	is 	a change 	from the past working 	conditions
of 	employees. 	The 	hearing 	officer 	ordered 	that 	the 	District
return 	to 	the 	status 	quo 	ante 	with 	respect 	to 	the 	past practice
of 	teachers 	leaving 	school during work 	hours.
The 	Board 	has 	carefully 	reviewed 	the 	record 	in 	light 	of 	the
parties' 	exceptions 	and 	responses 	thereto, 	and 	affirms 	the
hearing 	officer's 	findings 	of 	fact 	and 	conclusions 	of 	law only
insofar 	as 	they 	are 	consistent 	with 	this 	decision.
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise specified, 	all references 	shall be 	to
the Government Code.
Subsections 3543.5(a), 	(b), and 	(c) provide as follows:
It 	shall be unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on 	employees, 	to discriminate or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
22

FACTS
Between March 	1978 	and April 	1979, 	the Association and 	the
District 	negotiated 	a 	collective 	bargaining 	agreement 	which 	was
ratified 	by 	the 	school board on May 	3, 	1979. 	During 	the
approximate 	30 	negotiation 	sessions, 	neither 	side made 	any
proposals 	specifically 	relating 	to 	the 	rules 	of 	conduct 	or
tenure.
The 	parties 	negotiated 	an 	extensive 	evaluation 	procedure 	as
part of 	their 	first 	contract 	adopted 	in 	1978. 	The procedure
was 	incorporated 	without 	substantial 	change 	into 	the 	1979-80
contract. 	The 	evaluation process 	includes 	joint 	setting 	of
performance 	objectives 	for 	each 	individual 	teacher 	and 	a 	broad
list 	of 	professional 	duties 	required 	of 	teachers 	but makes 	no
reference 	to discipline of 	teachers.
On May 	29, 	1979 	Joseph Woodford, 	District director 	of
employee 	relations 	and 	chief 	spokesman 	for 	the 	District 	during
negotiations, 	notified 	the Association 	in writing 	that 	the
District 	proposed 	to present 	a 	set 	of 	rules 	of 	conduct 	for
certificated 	employees 	to 	the 	board 	of 	education 	for 	its
consideration on June 21, 	1979. 	(See Attachment A ) . 	These
rules 	were 	prefaced 	by 	the 	statement 	that 	"violation of 	any 	of
these 	rules 	shall 	be 	grounds 	for 	disciplinary action."
Mr. 	Woodford's 	letter 	stated 	in part:
. . . 	as 	you 	know 	these 	rules 	must 	be
consistent 	with 	the 	specific 	and
express 	terms 	of 	the 	contract. 	In
33

Article V, 	section 1 	of 	the 	contract
the 	District 	retained 	the 	right 	to
terminate 	and discipline 	employees. 	In
the 	exercise 	of 	this 	specifically
reserved 	right, 	the District 	has
developed 	these 	proposed 	"certificated
rules of conduct" as a policy, 	as
provided 	in 	section 1 of Article V. 	We
have 	taken 	great 	care 	to 	insure 	that
these 	rules 	of conduct 	are 	in
conformance 	with 	the 	contract 	and 	law.
The 	letter 	concluded 	by 	encouraging 	input 	from 	the
Association. 	However, 	the District did 	not offer 	to negotiate
over 	the 	rules.
The 	District 	stipulated 	at 	hearing 	that 	it 	considered 	the
proposed 	rules 	to 	be 	outside 	the 	scope 	of 	bargaining 	and/or
authorized 	by 	the 	contract 	to 	be 	adopted 	unilaterally, 	and 	that
it 	did 	not 	offer 	to 	bargain with 	the 	Association over 	the
matter 	at 	any 	time.
The Association 	sent 	the 	District 	a 	letter 	of protest 	on
June 	6, 	1979 	vehemently opposing 	the District's 	"proposed
rules." 	The letter 	charged, 	essentially, 	that 	the Association
had 	already 	negotiated 	the 	standards 	of 	performance 	upon 	which
certificated 	employees 	could 	be 	evaluated, 	the 	terms 	of which
were 	embodied 	in 	various 	sections of 	the 	contract.
The 	District 	nonetheless presented 	the proposed 	rules, 	with
slight revisions, 	to the board on July 19, 	1979. 	Both
Association 	President 	Royce 	Bell 	and 	Association Vice 	President
Gerald 	Christensen 	spoke 	to 	the 	board 	in opposition 	to 	the
proposed 	rules.
A	4

On July 	27, 	Royce Bell 	and 	the 	executive director 	of CTA
San Bernardino/Colton Chapters, Daniel G. 	Stubbs, met
informally with Mr. 	Woodford 	in his office 	to present 	their
specific objections 	to each 	of 	the 	rules. 	The Association's
objections 	essentially 	were 	that 	the 	rules 	(other 	than 	Rules
1.5 	and 	2.3) 	were 	redundant, 	duplicative of 	the contract,
unnecessary, 	covered 	by 	existing 	policy 	and 	the 	(Education)
code, 	and 	in violation of 	the 	spirit of 	the contract. 	The
District's 	position was 	that 	the 	rules 	were 	a codification of
policies, 	procedures 	and 	unwritten practices 	that 	previously
existed 	in 	the District. 	The District 	understood 	that 	the
rules 	were 	redundant 	with 	existing Education Code 	sections,
other 	state 	codes, 	board policies 	and written administrative
procedures, 	but felt 	it was 	necessary to place all the rules 	in
one 	document 	and 	preface 	the 	rules 	with 	a 	statement 	that
violation 	"of 	any 	of 	these 	rules 	shall 	be grounds 	for
disciplinary 	action." 	This 	position was 	based 	at 	least 	in part
upon 	legal advice 	that 	the 	Education Code 	(see 	subsection
44932(g)) 	required 	a dismissal 	to 	be 	based 	upon written 	rules
of 	a 	school board. 	Woodford 	testified 	that 	he 	drafted 	the
rules 	with 	an 	eye 	on 	the 	contract 	provisions 	so 	that 	there
wouldn't 	be 	a conflict.
The 	board 	of 	education 	adopted 	the 	rules 	of 	conduct on
August 	2, 	1979 	and 	implemented 	them 	immediately 	thereafter.
55

Of the 24 rules, the Association presented testimony with
respect to only two rules, Rules 1.5 and 2.3.2 Royce Bell
testified that his experience at two schools between 1967 and
1979 was that teachers were not required to check out when
leaving campus for school business in contrast to Rule 2.3
which requires prior approval for leaving campus during the
workday. Bell also testified that while serving as the
Association's building representative for 14 years, he attended
many meetings when checkout policies at various schools were
discussed. Based upon these meetings, he testified that
generally teachers could leave campus without prior approval
for school business reasons and that most schools had sign-out
sheets. Woodford testified that the previous unwritten policy
required a teacher to inform his supervisor prior to leaving
campus. He testified that a majority of principals required a
verbal acknowledgment that a teacher was leaving. The record
reflects that no uniform District practice existed requiring
teachers to get prior approval before leaving campus.
2Rules 	1.5 	and 	2.3 	are 	as 	follows:
1.5 	Certificated 	employees 	assigned 	to 	a
regular 	classroom 	shall 	complete 	and
make 	available 	lesson plans 	as directed
by 	their 	supervisor.
2.3 	No 	certificated 	employee 	may 	leave
his/her 	respective 	work 	site 	during
working 	hours 	without 	permission 	of
his/her 	supervisor.
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Bell also testified 	that, 	since 	1967, 	the District had
never 	required 	him to 	file 	lesson plans. 	Bell 	taught 	at 	both
the 	junior 	high 	and 	high 	school 	levels 	during 	this 	period.
District 	witness 	Joseph Woodford 	testified 	that 	at 	certain
schools, 	particularly at 	the 	elementary level, 	lesson plans
were 	required 	to 	be 	left on 	the 	desk, 	but 	that many 	times 	they
were 	not provided, 	which 	sometimes 	caused problems when 	a
substitute 	teacher 	appeared 	for 	work. 	Woodford 	testified 	that
he 	had 	talked 	with 	principals 	concerning 	their 	individual
policies 	regarding 	the 	requirement of 	lesson plans. 	He 	further
testified 	that 	the 	adoption 	of 	Rule 	1.5 	has 	not 	changed 	the
policies of 	any 	individual 	school 	concerning 	lesson plans, 	with
one 	exception. 	A principal 	at 	Urbita School changed 	the
school's 	policy 	to 	require 	additional 	lesson plans, 	emergency
or 	contingency 	plans. 	A grievance 	was 	filed 	and 	resolved 	by
the principal 	dispensing 	with 	the 	requirement. 	Similar 	oral
complaints 	arose 	at 	two other 	schools 	which Woodford 	presumed
had 	been solved 	in a 	like matter. 	The District's 	past practice
with 	respect 	to 	this 	requirement 	of 	lesson plans 	appears 	to
have 	varied 	from 	school 	to 	school 	with 	no 	uniform practice
District-wide. 	Finally, 	Woodford 	testified 	that 	he 	gave
instructions 	to his 	site 	administrators 	to 	continue 	to operate
their 	schools 	as 	they have 	in the past, 	and 	that 	it was 	not 	the
District's 	intent 	to 	set 	up a District-wide practice.
7V

DISCUSSION
Negotiability of 	Rules 	of 	Conduct
1. 	Supersession
The Association 	excepts 	to 	the 	hearing 	officer's 	finding
that 	the 	subject 	of 	rules 	of 	conduct 	as 	grounds 	for 	discipline
are 	nonnegotiable.
The Association 	also 	excepts 	to 	the 	hearing officer's
failure 	to 	find 	the 	adoption 	of 	the 	rules 	of 	conduct 	itself 	a
violation, 	arguing 	that 	the 	rules 	are 	per 	se 	negotiable 	since
they 	bear 	a 	logical 	and 	reasonable 	relationship 	to 	items
enumerated 	in 	EERA section 	3543.2.
In a 	series of cases 	dealing with supersession, 	this Board
has 	interpreted 	the 	supersession 	language 	contained 	in 	section
3540 	of 	EERA3 to contemplate 	that 	where 	a proposal pertains
to a subject which 	is 	covered 	by 	the Education Code, 	the
negotiability of 	that 	proposal 	is 	not 	precluded 	so 	long 	as 	it
3Section 	3540 	of 	the Act 	in 	relevant 	part 	states:
. 	. 	. 	Nothing contained herein shall be
deemed 	to 	supersede 	other 	provisions 	of 	the
Education 	Code 	and 	the 	rules 	and 	regulations
of public 	school 	employers 	which 	establish
and 	regulate 	tenure or 	a merit or 	civil
service 	system or 	which provide 	for 	other
methods 	of 	administering 	employer-employee
relations, 	so long 	as 	the rules and
regulations 	or 	other 	methods of 	the public
school employer 	do 	not 	conflict 	with 	lawful
collective 	agreements.
8

does 	not 	directly conflict 	with 	the Code.4 Unless 	the
statutory language 	clearly 	evidences 	an 	intent 	to 	set 	an
inflexible 	standard 	or 	insure 	immutable 	provisions, 	the
negotiability of a proposal 	is 	not precluded, 	provided 	it
relates 	to 	an 	item within 	the 	scope of 	negotiations.
Education Code 	Sections 	44932 	and 	44933 	provide 	a 	scheme 	of
grounds 	for 	the 	dismissal of certificated 	employees. 	The
District's 	statement 	that 	"violation of 	any 	rules 	shall 	be
grounds 	for 	disciplinary 	action" 	certainly 	encompasses 	the 	full
range 	of 	disciplinary 	action. 	Education Code 	subsection
49932(g) 	authorizes 	dismissal of 	a permanent 	certificated
employee 	for:
Persistent violation 	of 	or 	refusal 	to 	obey
the 	school 	laws 	of 	the 	state or 	reasonable
regulations 	prescribed 	for 	the 	government 	of
the public 	schools 	by 	the 	State 	Board 	of
Education or 	by 	the 	governing 	board of 	the
school 	district 	employing 	him.
The 	other 	subsections 	of 	Education Code 	section 	49932 	set 	forth
mandatory 	criteria 	to be 	utilized 	in 	the 	dismissal 	of 	permanent
certificated 	employees. 	Subsection 49932(g), however, 	includes
reasonable 	regulations 	prescribed 	for 	the 	government 	of 	the
public 	schools 	by 	the 	governing 	board 	of 	the 	school district.
This provision 	is discretionary 	in 	that 	it 	does 	not 	set 	forth
4Jefferson 	School District 	(6/19/80) 	PERB Decision
No. 	133; 	Healdsburg Union High School District 	(6/19/80) 	PERB
Decision No. 	132.
99

specific mandated 	criteria. 	We 	therefore 	conclude 	that 	the
determination of 	the 	negotiability of 	the 	rules 	of 	conduct 	as
they affect 	the 	imposition 	of 	disciplinary 	action 	is 	not
precluded 	by direct 	conflict 	with 	any mandatory provision 	of
the Education Code. 	No evidence 	was presented 	at 	the 	hearing
which demonstrated 	such 	a conflict. 	Since 	supersession 	has 	not
been demonstrated 	here, 	the 	appropriate 	test 	to determine 	the
negotiability of 	these 	rules 	of 	conduct 	is 	our 	scope 	test
enunciated 	in 	Anaheim Union High 	School 	District 	(10/28/81)
PERB Decision No. 	177.
2. 	Scope
Subsection 	3543.2(a) 	of 	the EERA sets 	forth 	the 	scope of
representation and, 	in relevant part, 	states that:
The 	scope 	of 	representation 	shall 	be 	limited
to matters 	relating 	to wages, 	hours of
employment, 	and other 	terms 	and 	conditions
of 	employment. 	"Terms 	and 	conditions of
employment" 	mean 	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 	. . . .
In Anaheim Union High School District, 	supra, 	we 	stated
that:
. . . 	a 	subject 	is 	negotiable 	even 	though
not specifically enumerated 	if 	(1) 	it 	is
logically 	and 	reasonably 	related 	to 	hours,
wages 	or 	an enumerated 	term 	and 	condition 	of
employment, 	(2) 	the subject is of such
concern 	to 	both 	management 	and 	employees
that 	conflict 	is 	likely 	to occur 	and 	the
mediatory 	influence 	of 	collective
negotiations 	is 	the 	appropriate means 	of
10

resolving 	the conflict, 	and 	(3) 	the
employer's 	obligation 	to 	negotiate 	would 	not
significantly 	abridge 	his 	freedom 	to
exercise 	those 	managerial 	prerogatives
(including 	matters 	of 	fundamental 	policy)
essential 	to 	the 	achievement 	of 	the
District's 	mission.
Disciplinary action, 	particularly termination, 	may have 	a
direct 	impact on wages, 	health 	and welfare 	benefits, 	and other
enumerated 	terms 	and 	conditions 	of 	employment 	since 	such 	action
may 	reduce 	or 	eliminate 	entitlement 	to 	those 	enumerated 	items.
Thus, 	rules 	of conduct which 	subject 	employees 	to disciplinary
action 	are 	subject 	to 	negotiation 	both 	as 	to criteria 	for
discipline 	and 	as 	to procedure 	to be 	followed. 	The 	unilateral
adoption of 	such 	rules 	therefore 	violates 	the 	employer's 	duty
to 	notify 	the 	exclusive 	representative 	and 	provide 	it 	with 	an
opportunity 	to 	negotiate.5 San 	Francisco 	Community College
District 	(10/12/79) 	PERB Decision No. 	105; 	San Mateo City
School District 	(5/20/80) 	PERB Decision No. 	129; 	Pajaro Valley
5This 	action 	arose 	prior 	to 	the 	1981 	amendment 	to 	section
3543.2 of 	the EERA which 	adds 	subsection 	3543.2(b):
(b) 	Notwithstanding Section 44944 of 	the
Education Code, 	the public 	school 	employer
and 	the 	exclusive 	representative 	shall, 	upon
request of 	either 	party, 	meet 	and 	negotiate
regarding 	causes 	and 	procedures 	for
disciplinary action, 	other 	than dismissal,
affecting 	certificated 	employees. 	If 	the
public 	school 	employer 	and 	the 	exclusive
representative 	do 	not 	reach 	mutual
agreement, 	then 	the provisions of 	section
44944 	of 	the Education Code 	shall 	apply.
We 	do 	not 	therefore 	consider 	its 	effect on 	scope.
11

Unified School District 	(5/22/78) 	PERB Decision No. 	51; 	NLRB v.
Katz 	(1962) 	369 U.S. 	736 	[59 LRRM 	2177]. 	The mere 	compilation
of 	already 	existing 	District 	rules 	or 	policies 	would 	not
constitute 	a unilateral change.
The 	NLRB and 	this 	Board 	have 	stated 	that 	the 	"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, 	holding 	that 	changes 	consistent
with 	past practices 	are 	not 	a violation of 	the 	"status quo" 	and
are 	thereby lawful. 	Davis Unified 	School District 	et al.
(2/22/80) 	PERB Decision No. 	116; 	Pajaro Unified School
District, supra; 	Stratford Industries, 	Inc. 	(1974) 	215 NLRB 682
[88 	LRRM 1240].
The District maintains 	that 	it 	did 	not 	commit 	an 	unfair
practice 	by 	its 	adoption 	of 	the 	certificated 	rules 	of 	conduct
because 	the 	rules 	were 	merely 	a 	codification of 	existing
policies, procedures and practices. 	Furthermore, 	the District
argues 	that 	the 	adoption of 	Rule 	2.3 	did 	not 	constitute 	a
unilateral 	action on a matter 	within 	the 	scope 	of
representation 	because 	the 	record 	clearly 	shows 	that 	it 	was
implemented 	in a manner 	consistent 	with 	past practice.
Other 	than 	testimony 	by Woodford 	that 	the 	Association's
primary objections 	to 	the 	individual 	rules 	of 	conduct 	were 	that
they were 	redundant, 	duplicative of 	the contract, 	unnecessary,
etc., 	the Association presented 	evidence 	of 	past practice with
12

respect 	to only 	two 	rules, 	Rule 	1.5 	(requirement of 	lesson
plans) 	and Rule 	2.3 	(leaving 	the 	worksite 	during 	working
hours). 	Since no evidence of past practices was presented 	as
to the 	other 	22 rules, 	and 	given 	the 	uncontradicted 	testimony
of District 	witness 	Joseph Woodford 	that 	there 	was 	no 	change 	in
past practice as 	to 	these 	rules, 	we 	find 	that 	the Association
did 	not 	meet 	its 	burden 	in proving 	that 	there 	was a 	unilateral
change 	in past practice 	as 	to 	those 	22 	rules.
The 	testimony 	regarding 	Rule 	1.5 	establishes 	that 	there 	was
a 	unilateral change 	in 	the 	adoption of 	the 	rule. 	The
requirement 	of 	lesson plans 	apparently 	varied 	from 	school 	to
school. 	The District 	argues 	that 	since Rule 	1.5 	imposes 	the
requirement 	to complete 	and 	make 	available 	lesson plans 	only 	as
directed 	by 	the 	supervisor, 	and 	since 	all District 	site
administrators 	were 	instructed 	to operate 	their 	schools 	as 	they
had 	in 	the past, 	this 	rule was 	adopted 	in accordance with past
practice. 	However, 	Rule 	1.5 on 	its 	face, 	gives 	total
discretion on 	the 	part 	of 	the 	supervisor 	to 	require 	lesson
plans 	at 	schools 	which 	formerly 	had 	no 	such 	requirement. 	The
fact 	that 	there 	was 	a grievance 	filed 	and 	two 	oral complaints
lodged 	over 	implementation 	of 	Rule 	1.5 	also 	indicates 	that 	its
adoption 	constituted 	a change 	in past 	practice.
Similarly, 	with 	respect 	to Rule 	2.3, 	the 	record 	establishes
that 	there 	clearly was 	a unilateral change 	in 	the 	adoption of
the 	rule. 	Prior 	to 	its 	adoption, 	there was 	no uniform District
13

practice 	with 	regard 	to 	teachers 	getting 	prior 	approval 	before
leaving 	campus. 	Rule 	2.3 on 	its 	face 	prohibits 	employees 	from
leaving 	the 	work 	site 	without 	permission of 	his 	or 	her
supervisor. 	Although 	District 	witness 	Woodford 	testified 	that
he 	gave 	instructions 	to his 	site 	administrators 	to continue 	to
operate 	their 	schools 	as 	they had 	in 	the past, 	and 	that 	it was
not 	the District's 	intent 	to 	set 	up a District-wide practice,
the 	language 	of 	the 	rule 	itself 	was 	a variation 	from past
practice and, 	as 	such, 	constitutes a unilateral change 	in past
practice.
Applying 	the 	scope 	test 	to 	both 	Rule 	1.5 	and 	Rule 	2.3 	we
find 	both 	rules 	to 	be 	logically 	and 	reasonably 	related 	to 	the
enumerated 	terms 	and 	conditions 	of 	employment. 	Rule 	1.5 	is
logically 	and 	reasonably 	related 	to 	hours 	because 	it 	is 	a
mandatory 	job 	requirement 	which may 	necessitate 	the
certificated 	employee 	to put 	in 	additional 	work 	time 	to prepare
the 	newly 	required 	lesson 	plans 	which 	were 	previously
unrequired. 	Rule 	2.3 	is 	certainly 	logically 	and 	reasonably
related 	to hours 	of 	employment 	in 	that 	it may 	impact on
employees' 	lunch or 	break periods or 	other 	non-duty time. 	By
denying 	teachers 	the 	right 	to 	leave 	the 	premises 	without
permission during non-duty time, 	the policy, 	in effect,
modifies 	the 	workday.6 It 	is 	therefore 	related 	to hours.
6The 	rule on 	its 	face, 	prohibits 	leaving 	the worksite
during 	"working 	hours" 	without 	permission. 	"Working 	hours"
14

Secondly, 	given 	the 	possibility of 	disciplinary 	action
taken against 	an employee 	pursuant 	to 	these 	rules, 	the 	subject
is of 	considerable 	import 	and 	concern 	to 	employees. 	Management
also has 	an 	interest 	in 	having 	its 	policies 	and 	rules 	set 	forth
clearly, 	in written 	form, 	enabling management 	to better
administer 	and 	regulate 	its 	operations 	while 	at 	the 	same 	time
providing 	its 	employees 	with 	a clear 	statement 	of 	District
rules 	and 	policies. 	Thus, 	Rules 	1.5 	and 	2.3 	are of concern 	to
both management 	and 	employees, 	and given 	the competing
interests, 	these 	rules 	are 	likely 	to generate 	conflict. 	The
mediatory 	influence 	of 	collective 	negotiations 	is 	the
appropriate 	means 	of 	resolving 	that 	conflict. 	The 	negotiating
process 	provides 	the 	necessary 	framework 	for 	clarifying 	the
meaning of particular 	rules of conduct, 	for 	the discussion of
disciplinary 	procedures 	and 	for 	the 	promotion 	of 	stable
employment 	relations.
Finally, 	the 	employer's obligation 	to negotiate would 	not
significantly 	abridge 	his 	freedom 	to 	exercise 	those 	managerial
prerogatives 	(including 	matters 	of 	fundamental policy)
essential 	to 	the 	achievement of 	the District's 	mission. 	The
District maintains 	its 	inherent 	right 	to 	initiate 	discipline,
and 	can 	exercise 	its 	discretion 	in 	the 	determination of 	whether
denotes 	the 	entire 	period 	between 	beginning 	and 	ending 	time 	of
a 	shift, 	including 	non-duty 	time 	such 	as 	lunch 	and 	breaks.
Essex International 	(1974) 	211 NLRB 112 	[86 LRRM 1411].
15

a 	rule violation 	warrants 	the 	imposition 	of 	a 	particular
penalty. 	Therefore, 	it 	is 	found 	that Rules 	1.5 	and 	2.3 are
within 	the 	scope 	of 	representation 	and 	would 	find 	that 	the
District 	had 	an obligation 	to 	negotiate 	with 	respect 	to 	those
rules. 	The District's 	unilateral 	adoption of 	Rules 	1.5 	and 	2.3
constitutes a violation of subsections 3543.5(a), 	(b) 	and 	(c)
of EERA.
REMEDY
Certain 	aspects 	of 	the 	hearing 	officer's 	order 	were 	not
excepted 	to 	by 	either 	party. 	Except 	as 	otherwise 	indicated,
those matters 	in his 	order 	not 	excepted 	to 	and 	therefore 	not
considered 	here 	are 	adopted 	by 	the 	Board.7 We 	have
considered 	the 	District's 	exceptions 	as 	to 	remedy 	and 	find 	them
to be without merit. 	Therefore, 	we 	adopt 	the 	following ORDER.
ORDER
Upon the 	foregoing 	facts, 	conclusions of 	law and 	the entire
record 	in 	this 	case, 	it 	is 	found 	that 	the San Bernardino City
Unified School District has violated 	subsections 	3543.5(a), 	(b)
7The 	Board's 	remedial 	authority 	is 	found 	in 	section
3563.3, which provides:
The 	board 	shall have 	the 	power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including, 	but not limited to, 	the
reinstatement 	of 	employees 	with or 	without
back pay, 	as will 	effectuate 	the policies of
this chapter.
16

and 	(c) 	of 	the 	Educational 	Employment 	Relations 	Act 	by
unilaterally 	adopting 	work 	rules 	which 	can 	subject 	an 	employee
to disciplinary 	action. 	It 	is 	hereby ORDERED 	that 	the
District, 	its governing 	board, 	and 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in 	good
faith 	with 	the 	exclusive 	representative 	by 	unilaterally
adopting 	rules 	of 	conduct 	leading 	to 	disciplinary 	action
without 	providing 	the 	exclusive 	representative 	an 	opportunity
to 	negotiate 	thereon.
(2) 	Denying 	the 	San Bernardino Teachers 	Association,
CTA/NEA 	its 	right 	to 	represent 	unit 	members 	by 	failing 	and
refusing 	to meet 	and 	negotiate 	about 	these 	rules 	of 	conduct.
(3) 	Interfering 	with 	employees 	because 	of 	their 	exercise
of 	their 	right 	to 	select 	an 	exclusive 	representative 	to meet
and 	negotiate 	with 	the 	employer 	on 	their 	behalf 	by 	unilaterally
adopting 	these 	rules 	of 	conduct.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTION WHICH 	IS 	NECESSARY 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS 	ACT:
(1) 	Reinstitute 	the 	status quo 	ante 	regarding 	the 	past
practice 	regarding 	the 	requirement 	of 	lesson 	plans 	and 	the 	past
practice of 	teachers 	leaving 	school during 	work 	hours. 	If 	the
District 	desires 	to 	adopt 	any 	rule 	of 	conduct 	on 	this 	subject
which 	impacts 	working 	conditions 	within 	scope, 	it 	shall 	give
notice, 	and 	upon 	request 	from 	the Association, 	negotiate 	in
17

good 	faith 	regarding 	substance 	and 	procedure 	regarding 	that
rule.
(2) 	Within 	ten 	(10) 	workdays 	following 	the 	date 	of 	service
of 	this 	Decision, 	post 	at 	all 	school 	sites, 	and 	all other 	work
locations 	where 	notices 	to 	employees 	customarily 	are 	placed,
copies 	of 	the 	Notice 	attached 	as 	an 	appendix 	hereto. 	Such
posting 	shall 	be 	maintained 	for 	a 	period 	of 	30 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	said
notices 	are 	not 	reduced 	in 	size, 	altered, 	defaced 	or 	covered 	by
any 	other 	material.
(3) 	Within 	ten 	(10) 	workdays 	following 	the 	date 	of 	service
of 	this 	decision, 	notify 	the 	Los 	Angeles 	regional director 	of
the Public 	Employment 	Relations 	Board, 	in writing, 	of what
steps 	the 	District 	has 	taken 	to 	comply 	herewith. 	Continue 	to
report 	in 	writing 	to 	the 	regional 	director 	periodically
thereafter 	as 	directed. 	All 	reports 	to 	the 	regional director
shall 	be 	served 	concurrently 	on 	charging 	party 	herein.
This 	Order 	shall 	become 	effective 	immediately 	upon 	service.
Chairperson 	Gluck 	and 	Member 	Tovar 	concurred,
18

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD,
An Agency of 	the 	State 	of 	California
After 	a hearing 	in which 	all parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the 	San Bernardino City
Unified 	School 	District 	violated 	the 	Educational 	Employment
Relations Act 	by 	taking 	unilateral 	action 	in 	its 	adoption of
Rules 	1.5 	and 	2.3 	of 	its 	certificated 	Rules 	of Conduct, 	without
meeting 	and 	negotiating 	in 	good 	faith 	with 	the 	exclusive
representative, 	the San Bernardino Teachers Association,
CTA/NEA. 	It 	has 	further 	been 	found 	that 	this 	same course 	of
action 	interfered 	with 	San 	Bernardino 	City Unified 	School
District 	employees' 	exercise of 	rights 	protected 	by 	the
Educational Employment 	Relations Act. 	As 	a 	result 	of 	this
conduct, 	we 	have 	been ordered 	to post 	this 	notice, 	and we will
abide by 	the 	following:
A. 	CEASE AND DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and
negotiate 	in good 	faith 	with 	the 	exclusive
representative 	by 	unilaterally 	adopting
rules 	of 	conduct 	leading 	to disciplinary
action.
(2) 	Denying 	the 	San Bernardino Teachers
Association, 	CTA/NEA its 	right 	to represent
unit members 	by 	failing 	and 	refusing 	to meet
and 	negotiate 	about 	these 	rules 	of 	conduct.

(3) 	Interfering with 	employees' 	right 	to
negotiate 	collectively 	through 	their
exclusive 	representative 	by 	unilaterally
adopting 	these 	rules of 	conduct.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION WHICH
IS 	NECESSARY TO 	EFFECTUATE THE POLICIES 	OF
THE 	EDUCATIONAL 	EMPLOYMENT RELATIONS ACT:
Reinstitute 	the 	status 	quo 	ante 	regarding
the 	past 	practice 	regarding 	the 	requirement
of 	lesson plans 	and 	the 	past practice of
teachers 	leaving 	school during 	work 	hours.
If 	the District 	desire 	to 	adopt 	any 	rule 	of
conduct 	which 	impacts 	working 	conditions
within scope, 	it shall give notice, 	and upon
request 	from the Association, 	negotiate 	in
good 	faith 	regarding 	the 	substance 	and
procedure 	concerning 	that 	rule.
SAN 	BERNARDINO CITY 	UNIFIED 	SCHOOL 	DISTRICT
By:
Authorized 	Representative
Dated:
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.

PERSONNEL Attachment 	A
CERTIFICATED 	RULES 	OF CONDUCT
Purpose
The Board 	of Education 	expects 	that 	all 	employees 	holding
positions 	that 	require 	State 	certification 	comply 	with 	the
rules 	set 	forth 	in 	this policy. 	Classified 	employees 	are
governed 	by 	rules 	and 	regulations 	prescribed 	by 	the 	Personnel
Commission. 	It 	is 	not 	the 	intent 	of 	the Board of Education
that 	these 	rules 	be 	exclusive, 	but 	that 	they supplement 	the
school laws of 	the State, 	regulations prescribed 	for 	the
government of 	the 	public 	schools 	by 	the 	State 	Board 	of
Education, 	and 	other 	regulations 	adopted 	by 	the 	San Bernardino
City Unified 	School District. 	Violation of 	any of 	these 	rules
shall be 	grounds 	for 	disciplinary 	action.
1. 	Employee Obligations 	and 	Responsibilities
1.1 	All 	certificated 	employees 	shall 	keep 	accurate
records. 	This 	shall 	include, 	but not be 	limited 	to,
student attendance, 	student progress, 	student
discipline, etc.
1.2 	All 	certificated 	employees 	shall 	complete 	and 	timely
submit all projects, 	reports, 	and 	forms as directed 	by
their 	supervisor; 	including, 	but not 	limited 	to,
attendance reports, 	grades, 	employee cause of absence,
etc.
1.3 	Certificated 	employees 	are 	responsible 	for 	all
students 	in 	their 	charge, 	and 	shall not 	leave 	students
unsupervised.
1.4 	No 	certificated 	employee 	shall 	administer 	corporal
punishment 	to 	any 	student 	unless 	the 	established
procedures 	prescribed 	by 	the 	Board 	of 	Education 	are
followed.
1.5 	Certificated 	employees 	assigned 	to 	a 	regular 	classroom
shall 	complete 	and make 	available 	lesson plans 	as
directed 	by 	their 	supervisor.
1.6 	No 	certificated 	employee 	shall 	release 	any 	information
or 	records 	designated 	by 	law or 	the District 	as
confidential 	to 	any person or 	organization 	except 	as
provided 	in 	District 	policy 	governing 	the 	release 	of
confidential 	information 	and 	records.

CERTIFICATED 	RULES 	OF CONDUCT
1.7 	Certificated 	employees 	are 	required 	to 	report 	all
industrial 	accidents 	and 	accidents 	involving 	students
to their 	supervisor 	or 	designee, 	or 	other 	appropriate
District 	administrator 	within 	twenty-four 	hours 	of
occurrence.
1.8 	Certificated 	employees 	shall 	comply 	with 	all 	policies
and procedures of 	the District.
2. 	Employee Attendance 	and Working 	Hours
2.1 	All 	certificated 	employees 	shall 	report 	to 	work 	as
designated 	by 	the 	District.
2.2 	All 	certificated 	employees 	shall 	remain 	at 	work 	until
the 	completion 	of 	the 	workday 	as 	designated 	by 	the
District.
2.3 	No 	certificated 	employee 	may 	leave 	his/her 	respective
work 	site 	during 	working 	hours 	without 	permission 	of
his/her 	supervisor.
2.4 	Certificated 	employees 	shall 	not 	apply 	for 	or 	obtain 	a
leave of 	absence 	under 	false pretenses. 	Leaves may 	be
used 	only 	for 	the 	purposes 	for 	which 	they 	are 	obtained,
2.5 	Certificated 	employees 	shall 	only 	use 	sick 	leave 	for
authorized 	purposes.
2.6 	Certificated 	employees 	shall 	report 	to work 	at 	the
expiration of 	any leave of 	absence.
3. 	Insubordination
3.1 	Certificated 	employees 	shall 	follow orders 	and
directives 	given 	by 	their 	supervisor.
3.2 	No 	certificated 	employee 	shall 	use 	abusive 	or 	obscene
language 	directed 	toward 	other 	employees 	of 	the
District. 	This 	shall 	include any derogatory, 	racial,
or 	ethnic 	remarks.
22

CERTIFICATED 	RULES 	OF 	CONDUCT
4. 	Misconduct
4.1 	No certificated 	employee 	shall possess, 	use, 	or 	be
under 	the 	influence 	of 	any 	illegal 	drug 	or 	narcotic,
as 	defined 	under 	State or 	Federal 	law, 	or 	marijuana
while 	on duty or 	on 	school premises.
4.2 	No certificated 	employee 	shall possess, 	use, 	or 	be
under 	the 	influence 	of 	any 	alcoholic 	beverage 	while 	on
duty or 	on 	school premises.
4.3 	Certificated 	employees 	shall 	not 	knowingly 	falsify 	any
work 	records or 	employment 	forms.
4.4 	Certificated 	employees 	shall 	not 	sleep 	while 	on 	duty.
4.5 	Certificated 	employees 	shall 	not 	use 	abusive 	or
obscene 	language 	in 	the 	presence of 	students 	and/or
parents. 	This shall 	include derogatory, 	racial, 	or
ethnic remarks.
4.6 	Certificated 	employees 	shall 	not 	participate 	in 	any
strike 	or 	work 	stoppage 	or 	otherwise 	withhold 	services.
4.7 	Certificated 	employees 	may 	smoke 	only 	in 	designated
areas.
4.8 	Certificated 	employees 	shall 	not 	park 	their
automobiles on 	school 	sites 	except 	in designated 	areas.
33