Modesto City Schools (PERB 0347E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
MODESTO 	CITY 	SCHOOLS,
Respondent.
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Case No. 	S-CE-402
PERB 	Decision No. 	347
September 	27, 	1983
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Appearances; 	Kenneth W. 	Burt, 	II, Attorney for Modesto
Teachers Association, CTA/NEA; 	Patricia W. Mills, Attorney
(Breon, Galgani, Godino & O'Donnell) 	for Modesto City Schools.
Before Tovar, Morgenstern and Burt, Members.
DECISION
MORGENSTERN, 	Member: 	The Modesto Teachers Association,
CTA/NEA 	(MTA or 	Association) 	excepts 	to 	the proposed 	decision
of 	a 	hearing 	officer 	of 	the Public Employment Relations Board
(PERB 	or Board) 	dismissing 	the charge 	that 	the Modesto City
Schools 	(District) 	violated subsections 3543.5(a), 	(b) 	and 	(c)
of 	the Educational Employment Relations Act 	(EERA) 	by
unilaterally 	altering 	the 	policy 	concerning 	teacher
evaluations.1
1EERA 	is 	codified 	at 	Government Code 	sections 	3540 	et
seq. 	All 	other 	statutory 	references 	are 	to 	the Government Code
unless 	otherwise 	specified.
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.
FACTUAL 	SUMMARY
During 	the 	1971-72 	school year, 	before 	the 	effective date
of 	the EERA 	and 	before 	certification of 	the Association 	as 	an
exclusive 	representative 	of 	a 	unit 	of certificated 	employees 	in
the District, 	the District's 	evaluation policy provided 	that
permanent 	employees 	be 	evaluated 	every 	three 	years. 	The 	Stull
Act 	was 	enacted 	in 	1971. 	Education Code 	section 	44664 outlined
evaluation 	procedures 	for 	certificated 	employees 	and 	provided,
inter 	alia, 	that 	evaluations of personnel with 	permanent 	status
be 	conducted 	"at 	least 	every 	other 	year."
The District 	formed 	a 	committee 	in 	order 	to conform 	its
evaluation 	policy 	to 	the Stull Act 	requirements.
The 	evaluation 	procedure 	adopted 	by 	the District 	provided
that 	permanent 	teachers 	be 	evaluated 	every 	two years.
Jim Enochs, 	assistant 	superintendent, 	participated on the
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committee 	which 	developed 	the 	evaluation 	standards 	subsequent
to passage 	of 	the Stull Act. 	Enochs 	testified 	that 	the
committee 	was 	directed 	to 	develop guidelines 	in 	conformance
with 	the 	new 	law 	and 	consistent 	with 	the 	District's 	past
practice which, 	he 	testified, 	permitted back-to-back
evaluations 	of 	substandard 	employees.
Enochs 	stated 	that 	"our 	practice 	had 	been 	that 	substandard
evaluatees 	were 	evaluated 	successive years, 	even 	if 	they were
permanent 	employees." 	Enochs 	explained 	that 	the 	absence of 	the
phrase 	"at 	least" 	preceding 	"every two years" 	was 	an
inexplicable oversight, 	which was 	insignificant. 	He pointed
out 	that, 	in 	1972, 	no one worried 	about being challenged on
"technical" points. 	He stated that:
. . . 	we 	had 	past 	practice 	in 	front 	of 	us.
And 	that, 	as I mentioned to you, 	was our
charge, 	to bring 	it 	in line with 	the Stull
Bill 	language, 	which meant we had 	to
evaluate more 	frequently, 	but do not give 	up
past practice, 	which 	allowed 	us 	to evaluate
substandard 	employees 	in 	successive years.
In 	1975, 	another 	committee was 	formed 	to 	revise 	the
District's 	evaluation guidelines. 	Richard DeWolf, 	a 	teacher 	in
the District, 	was 	a member of 	that committee. 	As a 	result of
the 	committee's work, 	District policy 6360 	was 	adopted 	in
November 	1976. 	That 	policy 	also 	required 	that permanent
teachers 	be 	evaluated 	every 	two years.
DeWolf acknowledged 	that, 	without discussion, 	the
evaluation 	procedure 	of policy 	6360 	was 	attached 	as Appendix B
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to 	the 	parties' 	first 	negotiated 	agreement 	covering 	the 	1976-77
school 	year.2 However, 	in negotiations 	for 	the 	1977-79
successor 	agreement, 	the 	issue of 	evaluations 	arose. 	The
District 	sought 	to 	"clarify" 	what 	it perceived 	as 	its 	right 	to
evaluate 	substandard 	teachers 	in consecutive 	years. 	It
proposed 	that 	permanent 	teachers 	be 	evaluated 	"at 	least 	every
two 	(2) 	years." 	(Emphasis 	in original.) 	Enochs 	testified
that, 	while he had 	no 	specific 	knowledge 	about 	the 	1977
negotiations, 	he 	had 	been 	advised 	by 	the District's 	legal
counsel 	that, 	should 	the District 	accede 	to MTA's desires 	to
move 	subjects 	from 	the 	appendices 	to 	the 	text of 	the 	contract,
it 	should 	use more 	specific 	and 	precise 	language.
According 	to Jim Fletcher, 	resource 	teacher 	and District
bargaining 	team member, 	the District offered 	this 	proposal 	for
the 	following 	reason:
. 	The District was 	seeking clarification, 	in
terms of 	language, 	regarding 	the evaluation
of permanent 	employees 	who 	are 	not 	normally
scheduled 	for 	evaluation. 	The 	situation
existed 	where 	some 	individuals 	indicated
that 	such 	a 	right did 	not exist. 	The
2The 	appendices 	attached 	to 	the 	contract 	are 	described 	as
follows:
The 	following material 	is 	attached 	at MTA's
request 	and 	is 	not 	directly part of 	the
collective 	bargaining 	contract.
These Appendices 	address 	themselves 	to
agreements on 	issues 	of concern 	to the
parties 	over 	the 	course 	of 	negotiations 	and
of 	consult 	procedures 	under 	the Rodda Act.
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District 	was 	in 	the 	position of 	saying 	that
past 	practice 	had 	indicated 	under 	any 	number
of 	circumstances 	that 	individuals 	could 	be
evaluated 	on years 	when 	they were 	not
normally 	scheduled 	for 	evaluation, 	and 	that
clarification 	language 	needed 	to be 	included
into 	the 	contract 	to make 	that clear.
Jon Walther, 	MTA president 	and member 	of 	the 	1977 MTA
bargaining 	team, 	testified 	that 	the District 	also made 	a
proposal 	which 	provided 	that 	it 	could 	evaluate 	ten permanent
teachers 	per 	year 	who 	were 	not 	scheduled 	for 	evaluations.
However, 	Fletcher 	testified 	he was 	not 	familiar with 	this
proposal. 	In evidence 	is MTA's counterproposal which 	it
submitted 	in 	response 	to 	the District's 	proposal 	for 	ten 	extra
teacher 	evaluations. 	MTA countered 	with 	a proposal 	limited 	to
five 	extra 	elementary 	and 	three 	extra 	high 	school 	teacher
evaluations. 	The parties' 	negotiations reached 	impasse, 	and
each 	presented 	its 	final written proposal 	to 	the mediator. 	The
District proposed 	that 	permanent 	employees 	be 	evaluated 	if 	they
received 	substandard 	evaluations 	or 	if 	good-faith 	reasons
existed 	to deviate 	from 	the 	biennial pattern. 	MTA proposed
that 	the 	evaluation procedures 	set 	forth 	in 	the 	1976 	agreement
be 	maintained.
When 	the 	parties 	finally 	reached 	agreement 	on 	the 	1977-79
contract, 	the 	prior 	evaluation 	procedure 	provision 	("every 	two
years") 	was 	retained 	in the 	attached 	appendix.
During 	negotiations 	for 	the next 	agreement, 	the District's
initial position, 	presented 	to MTA 	in July 1980, 	was 	that
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probationary 	and 	temporary 	employees 	be 	evaluated 	more 	than
once 	each 	school year 	and 	permanent 	employees more 	than 	every
two 	years 	if 	the 	evaluator 	determined 	that 	improvement was
needed 	and 	assistance 	had 	been 	offered.
In February 	1981, 	the District 	altered 	its 	evaluation
proposal. 	It 	conditioned 	consecutive 	evaluations on 	the
evaluator's 	determination 	that 	serious 	deficiencies 	existed,
improvement 	was 	needed 	and 	assistance 	had 	been offered. 	In May
1981, 	the 	parties 	reached 	agreement. 	With 	four provisions
excepted, 	the contract was made 	retroactive 	to 1979. 	Pursuant
to 	a 	letter 	of 	understanding, 	a provision 	regarding 	teacher
evaluations was made effective September 	1, 	1981. 	It provides:
If 	serious 	deficiencies 	exist 	and 	are
identified 	during 	the 	evaluation process,
the District may offer 	assistance 	to and
monitor 	and 	record 	the 	response 	of 	the
employee 	during 	the 	following 	year. 	This
process 	shall 	not be used 	as 	a means of
harassment 	of 	any 	employee.
In 	its 	unfair practice charge 	filed on March 	5, 	1981, 	MTA
alleged 	that on or 	about September 	10, 	1980, 	the District
unilaterally 	changed 	the 	evaluation policy 	as 	it 	appeared 	in
policy 	6360. 	Specifically, MTA claims 	that, 	beginning 	in
September 1980, 	the District:
[E]valuated, 	observed 	and 	otherwise 	used 	the
evaluation procedure, 	including conferences,
on 	permanent 	teachers 	such 	as Lester 	Gosa
and Val McFadin; 	despite 	the 	fact 	that 	these
permanent 	teachers 	were 	evaluated 	under 	the
policy during 	the 	1979-80 	school year.
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Throughout 	the 	hearing, 	MTA witnesses maintained 	that 	the
consecutive 	evaluations 	of 	Gosa 	and McFadin during 	the 	1979-80
and 	1980-81 	school 	years 	were 	the 	first 	such 	incidents 	to occur
and 	thus 	evidenced 	a change 	in past practice. 	DeWolf, 	employed
as 	a 	teacher 	in 	the District 	for 	26 	years 	and 	a 	self-proclaimed
expert 	on Stull Act 	evaluations, 	testified 	that he 	never 	heard
of 	a 	teacher 	being 	evaluated 	every year 	and 	if 	he 	had 	known of
it, 	he 	"would 	have 	raised 	hell." 	He 	later 	changed his
testimony 	to 	limit 	this 	statement 	to 	the 	period 	after 	1976.
Walther, 	employed 	by the District 	for over 	15 years,
testified 	that, 	since 	adoption of policy 6360 	in 1976, 	he had
been 	evaluated 	every 	two years 	and, 	until 	approached 	by Gosa 	in
September 	1980, 	had 	not 	been 	aware of 	other 	permanent employees
being 	evaluated more 	frequently. 	Prior 	to 1972, 	Walther
testified, 	tenured 	teachers 	were 	not 	observed or 	evaluated on 	a
regular 	basis 	and 	there 	was 	very 	little 	teacher 	evaluating
taking 	place.
McFadin 	testified 	that 	he 	was 	officially 	evaluated 	during
both 	the 	1979-80 	and 	the 	1980-81 	school 	years. 	He had 	also
been 	evaluated 	in 	the 	1976-77 	and 	1977-78 	school years.
MTA called Melvin Jennings, 	director of personnel, 	as an
adverse 	witness 	and 	questioned 	him 	about 	the 	evaluations 	of
Gosa. 	Joint Exhibit #4 	contains 	documents which were prepared
in 	the 	fall 	of 	1980 	and which 	refer 	to Gosa's previous
evaluation. 	The 	exhibit 	includes 	classroom factual 	evaluation
7
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forms 	and 	post-conference observation 	forms. 	One document 	is 	a
memo dated November 	3, 	1980, 	addressed 	to Gosa 	and prepared 	by
his 	principal, 	Jerome Kopp, which 	summarizes 	a meeting 	between
the 	two. 	In pertinent part, 	the memo notes:
1. 	Informed Mr. 	Gosa 	that we would 	not
conduct 	an official 	evaluation 	as
prescribed 	by 	district 	policy 	for 	the
1980-81 	school year, 	(Per 	information
from 	the Director 	of 	Personnel)
2. 	Mr. 	Gosa was 	informed 	that we would
continue 	to make 	regular 	observations
of 	his program.
Jennings 	testified 	that 	he 	had 	conversations 	with 	Kopp
concerning Gosa, 	but he 	testified 	that he did 	not 	remember
making 	the 	statement 	referenced 	in point one of Kopp's memo.
Jennings 	stated 	that his 	conversation 	with 	Kopp 	concerned
Gosa's 	health 	and 	that 	Gosa was 	not 	evaluated 	during 	the
1980-81 	school year 	because Gosa was placed on a medical 	leave
of 	absence.3 However, 	when 	further 	questioned, 	Jennings was
3 T W O additional points 	in Kopp's memo 	referred 	to Gosa's
health:
5.. 	Mr. 	Gosa 	indicated 	to Mr. 	Kopp that he
was 	having 	a 	health 	problem 	and 	would
be 	seeing his 	doctor 	in the 	next 	few
days. 	He 	further 	indicated 	that he may
find 	it necessary 	to 	take 	a medical
leave of 	absence.
6. 	Mr. 	Kopp expressed 	his concern with
regard to Mr. 	Gosa's health and
indicated 	that 	if 	there 	was 	anything we
could do 	to help 	to please 	let us 	know.
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unable 	to explain 	why Gosa's medical 	leave 	prevented 	a 	second
evaluation 	but 	did 	not 	prevent 	classroom observations.
The District 	presented 	evidence 	to 	support 	its 	claim 	that
the 	past 	practice 	did 	include 	back-to-back 	evaluations 	of
substandard 	teachers. 	Respondent's Exhibit #4 	contains
assorted 	evaluations, 	including 	those of: 	James Leonard, 	a
permanent 	teacher, 	evaluated 	during 	the 	1976-77 	and 	1977-78
school years; Howard Hill, evaluated in 1964, 1965, 1966, 	1970
and 	1971; 	Jack Wier, 	evaluated 	in 1974 	and 1975; 	and McFadin,
evaluated 	in 	1976-77 	and 	1977-78. 	These documents were
introduced 	without 	further 	comment 	from District 	witnesses.
MTA witnesses 	testified 	that 	they 	had 	no 	knowledge 	of 	these 	or
any other 	past 	consecutive 	evaluations 	and 	that, 	in general,
MTA did 	not 	receive 	copies 	of 	teacher 	evaluations.
DISCUSSION
The District 	asserts 	that 	it 	is 	entitled 	to perform
consecutive 	evaluations 	of 	all 	teachers whenever 	they 	are
determined 	to be 	substandard. 	Such 	a policy 	is 	one of
generalized 	application 	and 	continuing 	effect. 	Under 	the
standard 	articulated 	in Grant Joint 	Union High 	School 	District
(2/26/82) 	PERB Decision No. 	196, 	the Association's allegation
is 	cognizable 	as 	an unfair practice.
Since 	evaluation procedures 	are 	an 	enumerated 	subject 	of
bargaining 	and 	within 	the 	scope 	of 	representation4 	and 	since
4Subsection 	3543.2(a) 	provides 	in pertinent part:
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the Association's 	interpretation of 	the 	policy precluding
yearly 	evaluations 	does 	not 	contravene 	an 	inflexible 	standard
established 	by 	the Education Code, 	MTA's 	charge would 	be
sustained 	if 	the 	record 	demonstrated 	that 	the 	District
unilaterally 	altered 	a 	provision of 	the 	agreement or 	the
consistent 	past 	practice.
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,
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. . . .
See Walnut Valley Unified School District 	(2/28/83) 	PERB
Decision No. 	289 	and Jefferson School District 	(6/19/80) 	PERB
Decision No. 	133, 	rev. pen., 	1 Civil 50255. 	See also
Certificated Employees 	Council 	v. 	Monterey Peninsula Unified
School District 	(1974) 	42 Cal.3d 	328 where 	the Court held 	that
the meet 	and 	confer 	requirements 	of 	the Winton Act 	were
applicable 	to development 	and 	adoption 	of 	teacher 	evaluation
and 	assessment guidelines.
It 	is our 	assessment, 	however, 	that 	the record supports 	the
hearing 	officer's 	conclusion 	that 	the 	existing 	policy 	has 	long
been 	in place, 	and 	that 	that policy or past practice 	is one of
evaluating 	teachers 	who 	are 	substandard 	on 	a 	"back-to-back"
basis. 	Therefore, 	the District did not commit a unilateral
10

change 	when 	it 	simply 	continued 	to practice what 	it 	had 	been
practicing 	for 	17 years.
The 	language 	of 	the 	evaluation provision 	attached 	to 	the
contract 	mandates 	the 	evaluation of 	permanent 	teachers 	"every
two 	years." 	The 	detailed 	evaluation procedure 	specifically
includes 	an 	express 	provision 	permitting 	more 	frequent
evaluations 	of probationary 	employees. 	No 	similar 	exception
appears 	in 	the 	written 	agreement 	exempting 	substandard
teachers. 	Contrary 	to our 	dissenting colleague, 	we do not 	find
from 	these 	facts 	that 	the 	policy 	unambiguously precludes
consecutive 	evaluations. 	We 	find 	only 	that 	the 	policy 	is
silent 	as 	to 	the 	frequency of 	substandard 	evaluations 	and would
interpret 	the 	policy's 	silence 	in 	accord 	with 	the purpose
intended 	to be 	served 	by 	the 	policy.
The Stull Act 	and 	the 	District's policy on 	teacher
evaluations 	did 	not 	arise 	from a 	concern 	to protect 	teachers
from an excessive number of evaluations. 	Rather, 	the 	issue of
teacher 	evaluations 	grew 	from a 	public 	policy 	concern 	that 	a
minimum 	frequency 	of evaluations 	be 	insured. 	In 	other 	words,
the 	language 	of 	the policy must 	be 	read 	not as 	intending 	to
restrict 	evaluations 	but 	to guarantee 	the maintenance 	of
teacher 	competency. 	Under 	these circumstances, 	it 	seems
incongruous 	to 	find 	that 	the parties 	intended, 	by 	their 	silence
on 	the 	substandard 	teacher 	category, 	to 	foreclose 	the option of
consecutive evaluations. 	We find, 	then, 	that 	the contract 	is
11

facially 	ambiguous 	and 	will 	not 	ignore 	the 	evidence 	regarding
bargaining 	history or 	past 	practice. 	Marysville Joint Unified
School District 	(5/27/83) 	PERB Decision No. 	314; 	Rio Hondo
Community College District 	(12/31/82) 	PERB Decision No, 	279.
The 	bargaining 	history 	regarding 	the 	evaluation procedure
spans 	a 	ten-year 	period. 	The 	1971-72 Handbook, 	which permitted
evaluations 	every 	three 	years, 	was 	nullified by 	the Stull Act's
requirement 	that 	teachers 	be 	evaluated 	at 	least 	every other
year. 	When 	the District 	committee 	rewrote 	its policy, 	it
required 	evaluations 	every 	two years. 	Enochs' 	testimony was
that 	it 	intended 	to preserve 	the 	consecutive 	evaluation
practice 	in 	substandard 	teacher 	situations.
Enochs more 	specifically 	testified 	that 	in 	1972, 	a
committee, 	of which he was chairman, 	was constituted 	to bring
the District's 	evaluation policies 	in 	line 	with 	the Stull Act
while 	keeping 	them continuously 	in 	line 	with 	its 	existing
practices. 	He 	testified 	that 	the 	existing practice 	at 	that
time 	permitted 	back-to-back 	evaluations 	for 	substandard
teachers. 	He 	acknowledged 	that 	the 	term 	"at 	least" 	was
inadvertently 	omitted 	from 	the 	written 	policy 	but 	unequivocally
insisted 	that 	it 	was 	their 	clear 	intention 	to maintain 	that
practice. 	He 	stated, 	"That was our 	intention. 	Because we had
past practice 	in 	front of 	us." 	He 	goes on 	to 	say 	that 	the
charge 	of 	the 	committee was 	to bring 	the District 	in line with
the Stull Act, 	"but 	not give 	up past practice which 	allowed us
to evaluate 	substandard 	employees 	in 	successive years."
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The 	evidence 	indicates 	that 	three 	of 	the 	several 	teachers
on 	this 	committee 	were 	appointed 	by 	the Association 	and 	that
the Association 	itself 	was 	interviewed 	before 	the 	policy was
put 	into effect.
The Association 	argues 	it 	never 	knew of 	the 	policy or 	the
practice 	of 	back-to-back 	evaluations 	of 	substandard 	teachers.
Yet 	it put on no one 	to testify that Enochs was 	incorrect, 	that
this was 	not 	the policy 	in 	1972, 	that 	its 	recollection or
knowledge 	of 	the policy was different, 	or 	that 	there was 	no
such 	past 	practice 	before 	it. 	Indeed, 	all MTA witnesses who
spoke 	from 	first-hand 	knowledge 	of 	that 	policy were 	careful 	to
restrict 	their 	comments 	to 	the period of 	1976 or 	later, 	even
though many were 	teachers 	in the District earlier. 	•
In 	support of 	the 	instant case, 	MTA cites 	to the bargaining
history 	as 	circumstantial 	evidence 	demonstrating 	that 	the
District 	consistently 	perceived 	its 	agreement 	not 	to 	include 	a
consecutive 	evaluation 	provision.
It 	can 	be 	argued 	that 	the District's 	efforts 	to 	specify 	its
consecutive 	evaluation 	authority was 	designed 	to 	attain 	a
previously 	unsecured 	right. 	It can also be argued, 	however,
that 	the 	fact 	that 	the 	District 	rejected MTA's 	proposal
permitting 	only 	a 	certain 	number 	of 	consecutive 	evaluations
supports 	the 	District's 	contention 	that 	the past practice
permitted 	back-to-back 	evaluations 	of 	al
- l 	substandard
teachers. 	As 	is 	true when 	interpreting 	the 	significance of 	a
13

union's 	unsuccessful bargaining demands, 	the employer, 	by its
negotiating 	conduct, 	does 	not 	relinquish 	its 	right 	to act 	in
accordance 	with 	the 	established 	past practice. 	See Beacon
Piece Dyeing and Finishing Co., 	Inc. 	(1958) 	121 NLRB 953;
Globe-Union, 	Inc. 	(1977) 	233 NLRB 1458. 	We are thus unwilling
to 	deduce 	on 	the 	basis 	of 	these 	bargaining proposals 	that 	the
past practice 	in 	fact 	precluded 	consecutive 	evaluations.
Rather, 	we 	find plausible 	the District's contention 	that 	its
efforts 	to 	clarify 	the 	policy 	language 	were motivated 	by 	the
Association's 	demand 	to move 	the 	addended 	policy 	language 	into
the 	body of 	the 	bilateral 	agreement.
Ultimately, 	the critical 	issue 	relevant 	to bargaining
history 	involves 	the meaning 	of 	the 	language 	as 	written 	into
the 	1972 	policy since 	it 	is 	uncontested 	that 	that 	language was
incorporated 	without 	alteration 	into 	the 	1976 	agreement. 	MTA
never 	squarely 	addresses 	this 	issue. 	No witness 	refutes
Enochs' 	testimony 	that 	the policy 	in 1972 was 	to permit
back-to-back 	evaluations. 	MTA avoids 	this 	issue 	and 	falls 	back
on 	the 	argument 	it was 	unaware of 	the policy. 	However, 	in the
face of 	the 	evidence 	that 	the policy has been 	in effect 	for 	17
years, 	that 	the MTA 	representatives on 	the 	committee 	in 1972
had 	it before 	them, 	that 	this has 	affected 	several 	teachers,
that 	one of 	the principal parties 	of 	this 	case 	had himself
received 	back-to-back 	evaluations 	a 	few years 	earlier, 	and 	that
the Association was 	a 	representative of 	the 	teachers 	during
this period, 	we must conclude 	that 	the Association knew or
should 	have 	known of 	the 	policy.
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The 	strongest 	evidence 	in 	support of MTA's position 	is
found 	in 	the 	testimony of Jennings, 	referring 	to 	the memo
prepared 	by 	Kopp which 	states 	that 	a 	second 	evaluation of 	Gosa
would 	not 	be 	conducted 	"as 	prescribed 	by district policy 	for
the 	1980-81 	school year." 	Jennings' 	testimony does 	nothing 	to
refute 	this direct 	language, 	and 	thus the memo appears 	to
establish 	that 	at 	least 	one 	administrator 	viewed 	the policy 	as
does MTA. 	However, 	Jennings became 	the personnel officer 	in
1980 	and 	had 	ho 	first-hand 	knowledge of 	the past practice.
Other 	District 	witnesses 	with 	prior 	direct 	knowledge 	of 	its
history 	had 	the 	opposite 	view of 	the policy.
Based 	on 	the 	totality of 	the 	evidence 	presented, 	we
conclude 	that MTA has 	failed 	to 	demonstrate 	that 	the District
has 	unilaterally 	altered 	its 	evaluation policy 	because we 	find
that 	the District 	has 	regularly 	conducted 	consecutive
evaluations of substandard 	teachers. 	Thus, 	we dismiss MTA's
unfair 	practice 	charge. 	We 	also deny MTA's 	request 	to present
oral 	argument 	or 	supplemental 	briefs 	in 	this 	case 	finding 	that
the 	record 	before 	the Board 	provides 	ample 	basis 	for 	our
determination.
ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law, 	and 	the entire 	record 	in this case, 	the complaint
against 	the Modesto City Schools 	is 	hereby DISMISSED.
Member Tovar 	joined 	in 	this 	Decision. 	Member Burt's dissent
begins on page 	16.
15

Member Burt, 	dissenting:
I 	agree 	with 	the 	majority 	that 	procedures 	for 	evaluation
are within scope, 	and 	therefore 	that prior 	to 	changing 	such
procedures 	the 	District must 	provide 	the 	exclusive
representative 	with 	notice 	and 	an opportunity 	to 	negotiate. 	In
this 	case 	the 	question 	is what 	the 	operative procedure 	for
evaluations 	was, 	and 	thus 	whether 	a 	change 	occurred.
Resolution 	of 	this 	question 	depends 	upon 	whether 	the 	District
established 	a 	practice 	of 	evaluating 	allegedly 	substandard
teachers 	more 	often 	than 	once 	every 	two years, 	contrary 	to 	the
express 	language 	of 	its 	written policy.
The 	majority 	finds 	that 	the 	written 	policy 	is 	ambiguous,
and 	that 	resort 	to parol 	evidence 	is 	necessary. 	For 	the
conclusion 	that 	the 	written policy 	is 	ambiguous, 	my colleagues
rely 	in part 	upon 	evidence 	of 	a practice 	contrary 	to 	the
policy. 	In my view, 	resort 	to extrinsic evidence 	is 	neither
necessary 	nor 	proper 	unless 	the policy 	is 	ambiguous 	on 	its
face; 	there 	is 	an analytical 	flaw 	in looking 	to extrinsic
evidence 	to 	create 	an 	ambiguity 	and 	then 	to 	find 	that 	resort 	to
extrinsic evidence 	is proper. 	The 	policy 	in question provides
that 	"permanent 	teachers 	are 	evaluated 	every 	two
years 	. 	. 	. 	." 	In the same clause, 	it provides for more
frequent 	evaluation of probationary 	teachers. 	The Stull Act,
with 	which 	the 	policy 	was 	designed 	to comply, 	itself 	contains
16

language 	permitting 	teachers 	evaluations 	"at 	least 	every 	other
year." 	Given 	the 	language 	of 	the Stull Act, 	and 	the 	language
in 	the 	very 	section of 	the District's 	evaluation policy 	in
controversy, 	it 	is clear 	to me 	that 	the District 	knew how 	to
draft 	clear 	and 	concise 	language providing 	for 	evaluations 	more
frequent 	than 	every two years. 	Instead, 	it drafted 	language
which 	clearly 	and 	unambiguously provided 	for 	evaluations 	every
two years 	— no more, 	no 	less. 	There 	is 	no ambiguity 	in 	the
District's 	policy which 	would 	justify 	a 	resort 	to 	extrinsic
evidence.
Even 	if 	reference 	is 	made 	to extrinsic 	evidence 	to
determine what 	the 	evaluation policy was, 	I do not 	find 	the
evidence 	allegedly 	establishing 	a past 	practice 	to 	be
convincing. 	The District 	relies 	upon 	evidence of 	12 	incidents
involving 	preparation 	of 	evaluations 	more 	frequently 	than 	every
two years. 	These 	12 	incidents, 	involving a 	total of 	four
different 	teachers, 	occurred 	over 	a period of 	approximately 	17
years. 	The 	evidence 	indicated 	that 	the District 	did 	not 	serve
these more 	frequent 	evaluations 	on 	the Association, 	and 	that
the Association did 	not 	have 	actual 	notice of 	the 	evaluations.
In my view, 	for 	a practice 	to modify 	the 	express 	terms 	of a
negotiable 	written policy, 	it must 	have 	been 	regularly
occurring, 	open and 	notorious, 	and 	known 	to the Association.
In essence, 	the District's 	argument 	is 	that 	it violated 	the
written 	policy often 	enough 	to 	effectively 	supersede 	it 	by
17

practice, 	and 	that 	the Association 	never objected. 	In 	this
case 	the 	evidence 	is 	that 	back-to-back 	annual 	evaluations
occurred 	infrequently 	and 	sporadically, 	and 	were 	not 	known 	to
the Association. 	On such 	facts, 	I cannot conclude 	that 	the
clear 	terms 	of 	the policy 	were 	superseded 	by practice. 	That
would 	be 	tantamount 	to holding 	that 	the Association waived 	its
right 	to 	negotiate 	regarding 	a 	change 	in 	the 	negotiable 	subject
of 	evaluation 	policy 	by 	failing 	to 	object 	to violations 	of 	that
policy which 	it 	neither 	knew of 	nor 	had 	reason 	to 	know of.
I 	find 	further 	indication 	that 	the 	District 	policy
permitted 	evaluation of 	regular 	teachers 	no more 	frequently
than 	every 	two 	years 	in 	the 	fact 	that 	the District 	repeatedly
attempted 	to modify 	the 	language 	in 	negotiations. 	I 	reject 	the
majority's 	finding 	that 	it would 	be 	somehow 	unfair 	to 	rely 	upon
evidence of 	the District's 	unsuccesful 	attempts 	to modify 	its
policy during 	negotiations 	to 	show 	that 	the 	express 	terms 	of
the policy governed. 	The majority 	confuses 	the 	statutory 	right
to 	negotiate 	enjoyed 	by unions, 	a waiver 	of which will not 	be
inferred, 	with 	the District's 	attempt 	in this 	case 	to
demonstrate 	that 	the Association waived 	its 	right 	to object 	to
the District's 	change 	in a 	negotiable policy. 	The District's
contention 	that 	it modified 	its written policy by practice, 	and
therefore 	that 	no unilateral change 	occurred, 	is 	an affirmative
defense 	upon which 	it has 	the 	burden of proof. 	I 	see 	no
problem with 	drawing 	the 	reasonable 	inference 	from 	its 	attempt
18

and 	failure 	to modify 	its 	written policy 	through 	negotiations,
to wit, 	that absent a negotiated modification, 	the District
itself 	believed 	that 	it 	lacked 	the 	right 	to 	evaluate 	regular
teachers more 	often 	than 	every 	two 	years.
In 	summary, 	I 	would 	find 	the 	language of 	the District's
policy 	to 	be clear 	and 	unambiguous on 	its 	face, 	and 	to allow
evaluation of permanent 	teachers 	no more 	than 	once 	every 	two
years. 	I would 	find 	resort 	to 	extrinsic evidence 	neither
necessary 	nor proper. 	I 	would hold 	that 	if 	reference 	to
extrinsic evidence 	is made, 	the departures 	from the written
policy were 	sporadic 	and 	infrequent 	and, 	moreover, 	that 	they
were 	unknown 	to 	the Association. 	Therefore, 	I would 	find 	that
such 	departures 	from 	the 	written policy did 	not 	supersede 	it.
I 	would 	find 	that 	the District's 	repeated 	attempts 	to modify
the 	express 	language of 	the 	policy provide 	some 	indication 	that
the 	District 	itself 	understood 	that 	it 	did 	not 	have 	the 	right
to 	evaluate 	permanent 	teachers 	more 	often 	than 	once 	every 	two
years.
I 	would 	thus 	hold 	that, 	by 	unilaterally 	changing 	its
evaluation policy, 	the District violated subsections 3543.5(a),
(b) and (c) .
19