Modesto City Schools and High School District (PERB 0414E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
)
MODESTO 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
MODESTO 	CITY 	SCHOOLS AND HIGH
SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-485
PERB Decision No. 	414
October 12, 	1984
and
Case No. 	S-CE-485
Administrative 	Appeal
PERB Order No. Ad-143
October 12, 	1984
MODESTO 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging Party, 	APPELLANT,
v.
MODESTO 	CITY 	SCHOOLS 	AND HIGH
SCHOOL DISTRICT,
Respondent.
Appearances: 	Kenneth W. 	Burt 	II, 	Attorney, 	for Modesto
Teachers Association, 	CTA/NEA; 	Mark W. 	Goodson, 	Attorney
(Breon, 	Galgani, 	Godino & O'Donnell) 	for Modesto City Schools
and High 	School 	District.
Before Tovar, 	Jaeger and Burt, 	Members.
DECISION
BURT, 	Member: 	The Modesto City Schools 	and High School
District 	(District) 	excepts 	to the 	administrative 	law 	judge
(ALJ) 	decision 	finding 	that 	the District 	violated 	subsections
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
)
)
)
)
)
)
)
)
)
)
)
______________ )
)
)
)
)
)
)
)
)
)
)
______________ )

Act 	(EERA)l by unilaterally changing 	the 	length of 	time
allocated 	for 	lunch 	for 	certificated 	employees. 	The 	Modesto
Teachers Association, 	CTA/NEA 	(MTA or Association) 	also
excepts, 	challenging 	the 	failure 	of 	the ALJ to 	award back pay
to 	the 	affected 	teachers.
For 	the 	reasons 	discussed below, 	we 	reverse 	the ALJ's
decision 	and dismiss 	the 	complaint 	in 	its 	entirety.
FACTS
The District 	is 	composed of 	approximately 	30 schools: 	23
are K-6, 	3 are 	junior high schools, 	and 4 are high schools.
The 	Association 	is 	the 	exclusive 	representative 	of 	all
certificated 	employees 	in the 	District.
During 	the 	1980-81 	school year 	and 	several years previous,
Beyer 	High 	School was 	on a 	"modular 	schedule." 	The
instructional 	day 	consisted of 	eight 	45-minute periods,
including 	five 	instructional periods, 	a preparation period
equivalent 	to one 	instructional period, 	a duty-free 	lunch
period 	also 	equivalent 	to one 	instructional period, 	and a
student 	contact 	period.2 	Teachers 	did 	not have 	an assigned
class 	during 	the 	student 	contact period, 	but 	were 	expected 	to
2
1-The EERA is 	codified 	at 	Government 	Code 	section 	3540
et 	seq
Under
. 	Unless 	otherwise 	noted, 	all 	statutory references 	are
to 	the 	Government 	Code.
2under 	a modular 	schedule, 	the day consisted of 	25
15-minute 	segments 	referred 	to as mods. 	Three 	segments made 	up
one 	period. 	Greater 	flexibility was 	afforded 	teachers 	and
students 	in 	scheduling 	classes 	and 	other 	activities 	by using
one 	or 	more 	of 	these 	segments.
N	2

give make-up 	tests 	and assignments, 	provide 	resource 	centers,
answer 	questions 	and generally converse 	with 	students. 	Also,
during 	the 	contact 	period, 	for 	approximately three 	weeks per
year, 	teachers 	were 	assigned 	"forum duty" 	which consisted of
supervising 	a 	central 	area 	where 	students 	ate 	lunch as 	well 	as
the 	adjacent 	locker 	room area. 	This 	assignment 	lasted 	the
entire 	45-minute 	contact period. 	Students 	ate 	lunch during 	one
of 	three 	lunch periods 	under 	the 	modular 	schedule.
In 	the 	1981-82 	school year, 	Beyer 	High 	School changed 	to a
traditional high 	school 	schedule 	and has 	remained 	on 	this
schedule.
The 	traditional 	schedule 	is more 	formal. 	It 	consists of
seven 	50-minute periods, 	including 	five 	instructional periods,
one 	lunch period, 	and one preparation period. 	The 	student
contact 	period has been 	eliminated, 	and 	the number 	of 	lunch
periods has been 	reduced 	from three 	to 	two. 	Teachers 	are 	now
assigned 	forum duty 	for 	20 minutes 	during 	the 	lunch period.
The 	length of 	the 	forum duty assignment 	is 	still 	approximately
three 	weeks a year. 	Thus, 	for a three-week period each year
the 	teachers' 	50-minute 	duty-free 	lunch period 	is 	reduced by
approximately 20 minutes. 	Also, 	since 	the number of 	lunch
periods has been 	reduced 	from three 	to two, 	teachers 	on 	forum
duty 	are 	responsible 	for 	supervising 	more 	students.3
33 There	,rhere 	are 	approximately 	1850 	students 	and 	70 	teachers 	at
Beyer 	High 	School.
W3

Although MTA had 	advance 	notice 	of 	the 	change 	from 	the
modular 	schedule to the 	traditional 	schedule, 	it was not until
the 	first day of classes, 	on September 8, 	1982, 	that 	it became
aware 	of 	the 	shift 	in 	the 	forum duty assignment 	from the
student 	contact 	period 	to 	the previously duty-free 	lunch period,
Past 	Practice
Over 	the years, 	it was not 	uncommon 	for 	the 	District to
change 	daily schedules 	at 	the 	various 	schools. 	Such changes
occurred 	in 	the 	other high 	schools 	as well as 	in 	the 	junior
high 	schools 	and 	the 	K-6 	schools.4 In 	addition,
instructional 	schedules 	differed 	among 	the high 	schools 	over
the years, 	as did the number of 	lunch periods. 	There 	is no
historical 	consistency with 	respect 	to 	the 	schedules 	adopted 	by
individual high 	schools. 	Each 	operated 	independently and
according 	to 	its 	own needs 	when 	adopting daily 	schedules.
It 	is undisputed that, 	prior to 1981-82, 	teachers at Beyer
High 	School had 	a 	45-minute, 	duty-free 	lunch period 	equivalent
to one 	instructional period. 	The 	other high 	schools 	also had
duty-free 	lunch periods 	of 	varying 	lengths; 	for 	example,
35 minutes 	at Modesto. 	Frank Vandervort, 	a teacher at Davis
High 	School 	since 	1969, 	testified 	that he had 	never been
assigned 	lunchroom duty. 	He 	said 	the 	overall 	schedule 	changed
over 	the years, 	but 	the 	lunch period had always been 	the
4 The 	other 	traditional high 	schools 	in the 	District
comparable 	to Beyer 	are 	Downey, 	Modesto and Davis.
44

equivalent 	of 	one 	instructional period 	and 	duty-free 	for
teachers. 	Administrators 	and 	a 	noncertificated 	noon-duty
supervisor 	performed 	lunchroom 	supervisory duties 	at 	Davis.
Edward 	Gonsalves, 	a teacher 	at Modesto High 	School 	since 	1966,
described a 	similar 	arrangement 	at 	that 	school. 	Ken McNamara,
a 	teacher 	at 	Downey High 	School 	since 	1980, 	testified 	that
teachers 	there have 	a 	duty-free 	lunch period 	and 	that 	lunchroom
supervision 	is 	done by administrators, 	the campus 	supervisor
and 	the 	assistant 	campus 	supervisor. 	Witnesses 	from Downey and
Modesto 	High 	Schools 	testified 	that 	the 	schedules 	at 	those
schools 	were 	changed 	in 	recent 	years 	in 	that 	the 	lunch period
was 	shortened by approximately 	15 	minutes 	and 	a 	15-minute
morning break 	created. 	The 	lunch period 	remained 	duty-free 	and
teachers 	received 	the 	15-minute, 	duty-free morning break.
During 	1979-80, 	teachers 	at 	Downey did have 	lunchroom duty
for 	15 or 	20 minutes at a time, 	according to Jim Nicholas, 	the
current principal 	at 	Beyer 	who was 	then 	the 	assistant principal
at Downey. 	Nicholas conceded, 	however, 	that no teacher 	in the
high 	schools 	in 	the 	District had 	lunchroom duty during 	1980-81.
Teachers 	in 	the 	Modesto 	City Schools 	and 	the 	High 	School
District 	are all 	in one 	unit, 	and 	are all 	covered by one
collective bargaining 	agreement. 	While no teachers 	from the
elementary schools 	testified, 	there 	was 	testimony 	from the
District personnel director, 	Mel Jennings, 	that 	it was the
practice 	in 	several 	of 	these 	schools 	for 	teachers 	to perform
un	
5

lunchroom 	supervision 	during 	lunch.5
The 	Collective 	Bargaining 	Agreement
At 	the 	time 	the 	District 	changed 	the 	schedule 	at 	Beyer 	High
School, 	the parties 	were bound by a 	collective bargaining
agreement. 	Article 	IV, 	Hours of Employment, 	states 	in relevant
part:
ARTICLE 	IV: 	HOURS OF EMPLOYMENT
A. 	The 	regular 	employee 	work 	day 	is 	defined
as 	follows:
1. 	For grades K-6: 	300 minutes
including 	recesses 	and 	excluding
lunch.
2. 	For grades 	7-8: 	341 minutes
including 	a 	preparation period
equivalent 	to a 	student
instructional 	period 	and 	excluding
lunch.
3. 	For grades 	9-12: 	330 minutes
including 	a 	preparation period
equivalent 	to a 	student
instructional 	period 	and 	excluding
lunch.
B. 	The 	District 	and 	the 	Association
recognize 	that 	the 	varying 	nature of 	an
employee's 	day-to-day 	professional
5Jennings' 	testimony 	was 	corroborated 	by 	several
documents 	which he had prepared 	to 	summarize 	the practice 	in
the 	District. 	The 	Association 	objected 	to those 	documents 	on
the grounds 	that 	they were hearsay. 	The ALJ did not 	find 	it
necessary to rule on this objection, 	nor do we, 	since hearsay
is 	clearly admissible 	in 	any 	case 	under 	PERB regulation 	32176,
although 	it 	is not 	sufficient 	to 	support 	a 	finding unless
corroborated. 	Here 	Jennings 	clearly 	testified 	from his
personal knowledge 	of 	the practice 	in question.
PERB 	regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et 	seq.
6

responsibilities 	does 	not 	lead 	itself
solely 	to a work 	day of 	rigidly
established 	length.
In addition 	to performing duties 	as
assigned 	during 	the 	regular 	employee
work day, 	employees 	may be 	required 	to
perform other 	duties, 	many of which
shall 	occur 	outside 	of 	the 	regular
employee 	work 	day but 	are 	still 	related
to 	the 	assigned duties. 	Such duties
include, 	but 	are not 	limited to,
planning 	and 	selecting 	and 	preparing
materials 	for 	instruction; 	receiving and
evaluating work of pupils, 	ensuring
adequate 	direction 	and 	supervision 	of
students 	immediately prior 	and
immediately 	subsequent 	to 	the beginning
and 	ending 	of 	the 	student 	attendance
day; bus 	loading duty; 	conferring and
counseling with pupils, 	parents, 	staff
and administrators; 	keeping 	records;
attend 	faculty, 	departmental 	and grade
level meetings 	(see C below),
participating 	in 	staff 	development
programs 	and 	other 	professional
activities 	relating 	to 	the 	employee's
assignment; 	and 	studying 	current
literature 	to keep 	abreast 	of
developments 	within 	the 	subject 	matter
taught by 	the 	employees.
It 	is 	understood 	and agreed 	that
although 	the 	over-all 	amount 	of 	time
required 	of 	employees 	to perform 	their
duties 	should be 	substantially equal,
the proportion of 	time 	that 	these 	duties
require 	the presence 	of 	the 	employee 	at
the 	work 	site 	may vary 	according 	to 	the
nature 	of 	the 	employee's 	duties 	and
responsibilities.
D. 	In addition to 	"B" above, 	employees 	in
grades 	7-12 	may be 	required 	to devote 	a
reasonable 	amount 	of 	time 	to 	other
duties 	assigned 	by 	the 	building
administrator.
7
• 	• 	•
7

As a guideline, 	the 	time 	spent by the
employee 	on 	such 	additional 	duties
should 	not 	exceed 	approximately 	25 hours
during a 	school year. 	The 	local
administrator 	may 	exceed 	this 	guideline
only 	if his/her 	action 	is 	reviewed 	and
approved by the 	Superintendent. 	In
reviewing 	the 	local 	administrator's
action, 	the 	Superintendent 	shall
consider 	the 	following:
1. 	Uniform and 	equitable 	distribution
of duties among 	employees.
2. 	Special needs of 	the 	school.
3. 	Special needs, 	abilities, handicaps,
and/or 	limitations 	of 	the 	individual
employee.
4. 	Efficient use of employee 	time.
5. 	Extent of the employees' 	voluntary
contribution of 	time 	to 	school 	or
district activities.
Elsewhere 	in the agreement, 	at Article XIV, 	the agreement
provides:
9. 	Reassignment 	of employees 	who work 	in
more 	than one 	school 	shall be made 	in a way
that 	minimizes 	travel 	time 	in accordance
with program needs 	and 	insures 	duty 	free
lunch periods of at 	least 	30 minutes, 	and
where applicable, 	preparation periods.
Frank Vandervort, 	chief negotiator 	for MTA, 	was the only
witness 	who 	testified 	about 	the 	bargaining history 	related 	to
the contract.
With 	respect 	to Article 	IV.A.1.2.3., 	Vandervort 	testified
that 	most 	of 	the 	discussions 	centered 	on 	student 	contact
minutes. 	The parties 	attempted 	to 	reduce 	extensive 	language
found 	in 	the prior 	agreement 	to a 	clear 	and 	concise 	student
8

contact time requirement. 	In essence, 	the parties' efforts
were 	aimed 	at 	making 	the 	student 	contact 	time 	in 	the 	various
grade 	levels, 	i.e., 	K-6, 	7-8, 	and 9-12, 	uniform throughout the
District. 	According to Vandervort's unrebutted 	testimony, 	the
goal 	was 	to get 	agreement 	on 	the 	student 	contact 	minutes 	and
let 	other 	related practices, 	such as 	the one 	covering duty-free
lunch periods, 	continue as 	they had 	in the past 	in the various
schools. 	Although 	there 	was minimal discussion on the 	subject,
according 	to Vandervort, 	MTA was 	conscious of protecting 	the
preparation period and 	the 	duty-free 	lunch. 	In 	fact, 	there had
been 	no 	significant 	discussions 	about 	the 	duty-free 	lunch
period 	since 	the 	1976 negotiations.
Vandervort has 	always 	understood 	that 	the 	lengths 	of 	the
lunch periods 	varied 	from school to school. 	However, 	he has
also 	understood 	that 	the 	duty-free 	nature 	of 	the 	lunch period
has been a consistent practice 	in the 	District. 	Thus, 	when he
agreed 	to Article 	IV.A.1.2.3, 	he did 	so under 	the 	assumption
that 	the 	language 	therein expressly defined 	student 	contact
minutes, 	included a preparation period, 	and 	left 	the 	lunch time
to continue 	duty-free 	as 	it had been 	in the past.
With 	respect 	to 	the history 	surrounding 	Article 	IV.B.,
Vandervort 	described what 	amounts 	to a 	trade-off 	in 	reaching
agreement. 	In the past, 	teachers were 	required to report
30 minutes before 	the 	start 	of the 	instructional day and 	stay
30 minutes 	after 	the 	end of 	the 	instructional 	day to 	satisfy
9
9

work-related 	responsibilities 	such 	as 	counseling 	students,
giving make-up exams, 	etc. 	In return 	for 	the 	District's
dropping 	the 	rigid 	reporting 	requirement, 	MTA agreed 	to
complete 	all 	work-related 	assignments 	either 	during 	the 	workday
or 	after 	the 	workday as 	necessary. 	According 	to Vandervort,
MTA, 	by this agreement, 	recognized 	that 	teachers are
professionals 	and 	would 	complete 	necessary 	work-related
assignments 	when 	necessary without 	the 	need 	for 	the 	rigid
reporting 	requirement.
Article 	IV.D. 	covers 	extracurricular activities, 	such as
supervising dances, 	athletic events, 	etc. 	According to
Vandervort, 	MTA introduced the 	25-hour concept; 	this clause
means 	that 	teachers 	were 	responsible 	for 	up to 	25 hours of
extracurricular 	assignment.
Lastly, 	Article XI of 	the contract 	includes 	a 	standard
management 	rights 	clause 	about 	which 	there 	was 	no 	testimony.
DISCUSSION
The 	ALJ found 	that 	the 	District's 	change 	in 	the 	duty-free
lunch 	period 	constituted 	an unlawful 	unilateral 	change 	in a
matter related to wages, 	hours, 	etc., 	according to this 	Board's
decisions 	in Anaheim Union High 	School 	District 	(10/28/81) 	PERB
Decision No. 	177 and Healdsburg Union 	High 	School 	District,
et al. 	(1/5/84) 	PERB Decision No. 	375 and that 	the District
therefore violated 	its 	duty 	to negotiate 	in good 	faith.
Contrary to 	the 	ALJ, 	we 	find 	that 	the 	length of 	the 	duty-free
10

lunch 	need not 	be 	analyzed 	to determine whether 	it 	is 	related
to_ a matter within scope. 	The 	length of 	the 	lunch period 	is
the 	issue 	of hours 	itself 	and 	falls 	directly within 	the 	scope
of 	negotiations 	enumerated by EERA. 	As 	the 	Board held 	in
San 	Mateo 	City School 	District 	(5/20/80) 	PERB 	Decision
No. 	129,6 p. 15;
the 	negotiability of hours 	of 	employment
includes, 	of necessity, 	negotiability of the
hours 	during which employees 	are 	not
required to work. 	. 	. 	. 	[I]t is inherent in
the 	negotiability of 	the 	workday 	that 	one
may deal 	with 	the 	placement 	and 	duration
within 	that 	time 	frame of 	lunch periods 	and
the 	designation 	and 	nature 	of 	relief 	time
from the performance of one's 	duties.
See 	also Marysville 	Joint 	Unified 	School 	District 	(5/27/83)
PERB Decision No. 	314; 	Fresno County Board of Education, 	et al.
(9/17/84) 	PERB Decision No. 	409.
An 	employer 	violates 	its 	duty to 	negotiate 	in good 	faith
when 	it 	unilaterally changes 	an 	established policy affecting 	a
matter 	within 	the 	scope 	of 	negotiations 	without 	affording
notice 	and 	an opportunity 	to negotiate 	to 	the 	exclusive
representative. 	Grant 	Joint 	Union High 	School 	District
(2/26/82) 	PERB Decision No. 	196; 	Pajaro Valley Unified School
6This 	decision 	was 	annulled by 	the 	California 	Supreme
Court 	in San Mateo City School District, 	et al. 	v. 	PERB 	(1983)
33 Cal.3d 	850. 	In that 	decision, 	however, 	the Court upheld the
Board's 	approach 	to 	determining whether 	matters 	are 	within 	the
scope 	of 	negotiation, 	and 	directed 	the 	Board 	to reconsider
San Mateo, 	supra and Healdsburg, 	supra, 	in light of 	its
decision. 	The 	Board did 	so 	in Healdsburg Union High 	School,
et al. 	(1/5/84) 	PERB Decision No. 	375.
11

District 	(5/22/78) 	PERB Decision No. 	51; 	NLRB v. 	Katz 	(1962)
369 U.S. 	736 	[50 	LRRM 2177].
Established 	policy may be 	reflected 	in 	a 	collective
agreement, 	Grant, 	supra, 	or where the agreement 	is vague or
ambiguous, 	it 	may be determined by examining 	the past practice
or 	relevant bargaining history, 	Rio 	Hondo 	Community College
District 	(12/31/82) 	PERB Decision No. 	279; 	Pajaro Valley, 	supra.
Here 	the 	collective 	agreement 	makes 	several 	references 	to
the hours 	to be worked, 	but 	is 	silent on the 	issue of 	the
duration of 	the 	lunch period. 	The 	agreement 	specifies 	that
teachers 	in grades 	9-12 	are 	to work 	330 minutes per day. 	The
agreement 	does 	not give 	the 	length of 	the 	lunch hours, 	but
specifies 	that 	the 	preparation period 	shall be 	equivalent 	to a
student 	instructional period. 	No 	such qualification 	is 	added
with 	regard 	to 	lunch. 	Clearly there 	is provision 	for 	a
duty-free 	lunch of 	some 	length, 	since 	the 	330 minutes 	excludes
lunch, 	but the 	length 	is unspecified.
The 	District 	notes 	in 	its brief 	that 	it 	is 	required by
other 	regulations7 to provide 	a duty-free 	lunch period 	of 	at
least 	30 minutes, 	and 	it argues 	that 	it has discretion to
establish 	the 	length of 	the 	lunch period, 	based on the 	needs 	of
the 	school. 	This 	30-minute 	figure 	is used elsewhere 	in the
7The 	District does 	not 	specify 	the 	regulations 	in
question, 	but we presume 	it 	refers 	to regulations adopted
pursuant 	to 	the 	Education 	Code.
12

contract, 	ensuring 	that 	teachers 	who travel between 	schools
have 	a duty-free 	lunch of at 	least 	30 minutes. 	Other 	contract
sections 	dealing with 	additional 	duties 	to be performed 	do 	not
reference 	lunch duty at 	all.
The 	evidence 	presented 	regarding bargaining history 	is
similarly 	inconclusive. 	The parties 	apparently were 	concerned
with 	defining 	the 	actual 	working 	minutes 	and 	the 	general 	amount
of 	time 	to be 	spent 	on additional duties, 	but 	there 	was 	little
or 	no 	discussion 	with 	regard 	to 	the 	length of 	the 	duty-free
lunch, 	which 	the parties knew varied 	from school 	to 	school.
Since 	the 	language 	of 	the 	contract 	is 	silent 	with 	regard 	to 	the
length of 	the 	duty-free 	time 	for 	lunch, 	and 	the 	negotiation
history 	is 	similarly vague, 	we 	find 	it 	appropriate to turn to
the past practice 	in 	the 	District 	to 	determine 	whether 	there
has been 	a change 	in policy as alleged by the Association.
Clearly 	there 	was 	a 	change between 	1980-81 	and 	1981-82 	in
the 	length of 	the 	duty-free 	lunch period 	for 	teachers 	at
Beyer—for 	three 	weeks 	it 	was 	shorter, 	and 	for 	the 	rest of 	the
year 	it 	was 	slightly 	longer.8
However, 	Beyer 	is only one of 	four 	traditional high 	schools
in 	the 	District 	and 	the 	record 	indicates 	that 	the past practice
8S'There	l'here 	were 	several 	other 	time 	changes as a 	result 	of 	the
switch 	from the 	modular 	to 	the 	traditional 	schedule. 	No
charges were 	filed with 	regard 	to other 	changes, 	and 	there 	is
insufficient 	evidence 	in 	the 	record 	to 	determine 	the 	effect 	of
those 	changes 	on 	the 	contractually agreed-upon 	330-minute
maximum 	workday.
13

in 	the 	District 	varied at 	each school. 	While 	the ALJ
acknowledged 	that 	the 	past practice 	in 	the 	District was 	varied,
he 	unaccountably 	concluded 	that 	these 	aberrations 	"do 	not
detract" 	from the 	established past 	practice at 	Beyer.
On 	the 	contrary, 	we 	find 	the 	varied practice 	in the
District 	to be highly 	significant. 	The 	evidence 	indicates 	a
great 	deal 	of 	variation 	among 	the 	schools 	with 	regard 	to 	the
length of 	the 	lunch period, 	and 	reflects 	as well a great deal
of 	flexibility 	in 	scheduling. 	While 	the practice 	at 	Beyer
appears 	relatively 	consistent 	in offering 	a duty-free 	lunch 	of
the 	same 	length as 	one 	instructional period, 	the 	lunch period
was 	shorter 	at Modesto and Downey. 	Further, 	one witness
testified 	without 	contradiction 	that 	teachers 	at 	Downey did
have 	lunchroom duty at 	some period 	in 	the past. 	We
specifically 	reject 	the 	ALJ's 	suggestion 	that 	the 	past practice
at 	schools 	in the 	District other 	than 	Beyer 	is 	irrelevant.
Teachers 	in 	the 	District belong 	to one 	unit 	and 	are 	covered by
one 	contract. 	Absent 	any evidence 	of 	any contrary 	intention,
past practice 	throughout 	the 	unit 	is 	relevant 	in 	determining
whether 	or 	not 	a unilateral 	change 	in policy has 	occurred.
Grant, supra.
Here, 	because 	there 	is evidence of a varied past practice
in the 	length of 	the duty-free 	lunch 	for 	teachers, 	we 	conclude
that 	the 	Association has 	failed 	to demonstrate 	that 	the
District has 	made a unilateral 	change 	in policy 	so as 	to
14

violate EERA. 	For 	that 	reason, 	we overturn the decision of 	the
ALJ, 	and order 	the 	complaint dismissed.
We 	also deny the Association's 	request 	for 	costs, 	since 	we
find 	it 	to be without merit, 	and we deny the 	District's 	request
for 	oral 	argument 	since we 	find 	that 	no novel 	issues 	are
presented.
Further, 	we hereby deny 	the Association's 	appeal of 	the
executive director's 	rejection of 	its 	response 	to 	exceptions
because 	the 	response was untimely 	filed. 	The executive
director 	has 	correctly 	interpreted 	PERB 	regulation 	323109
controlling 	the 	time 	for 	filing of 	response, 	and 	the
Association's 	filing was 	indeed 	untimely.
9PERB 	regulation 	32310 	states:
Within 	20 days 	following 	the 	date 	of 	service
of 	the 	statement 	of exceptions, 	any party
may 	file 	with 	the 	Board 	itself 	an 	original
and 	five copies of a 	response 	to the
statement 	of 	exceptions 	and 	a 	supporting
brief. 	The 	response 	shall be 	filed with 	the
Board 	itself 	in 	the headquarters 	office.
The 	response 	may 	contain a 	statement 	of 	any
exceptions 	the 	responding party wishes 	to
take 	to 	the 	recommended decision. 	Any 	such
statement 	of 	exceptions 	shall 	comply 	in 	form
with 	the 	requirements of 	Section 	32300. 	A
response 	to 	such 	exceptions 	may be 	filed
within 	20 days. 	Such 	response 	shall 	comply
in 	form with 	the provisions 	of 	this
Section. 	Service 	and proof of 	service 	of
these 	documents pursuant 	to 	Section 	32140
are 	required.
15

ORDER
Upon 	the 	foregoing decision, 	and 	the 	entire 	record 	in 	this
matter, 	it 	is hereby ORDERED that 	the unfair practice charge 	in
Case No. 	S-CE-485 	is hereby DISMISSED.
It 	is 	further ORDERED that 	the Association's appeal of
rejection of 	its 	response 	to exceptions 	is hereby DENIED.
Member 	Jaeger 	joined 	in this 	Decision.
Tovar, 	Member, 	concurring and dissenting: 	I would affirm
the 	ALJ's 	proposed 	decision 	finding 	that 	the 	District
unilaterally altered 	the 	policy of 	a 	duty-free 	lunch period
equivalent 	to one 	instructional period 	without 	first 	providing
notice 	and an opportunity 	to 	negotiate 	to MTA, 	the 	exclusive
representative of 	the 	certificated 	employees 	in the District.
I 	agree 	with 	the ALJ's 	assessment 	that 	the 	variations which
existed 	in the District do not diminish the 	fact 	that, 	for
almost 	ten years 	at 	Bayer 	High 	School, 	the practice had been
that 	the 	duty-free 	lunch 	time 	equaled 	an 	instructional 	period
in 	length. 	The 	variations 	were primarily a 	result of 	changes
in 	the 	length of 	the 	school periods, 	depending on preparation
time, 	contact 	time 	and what 	scheduling system was 	in practice
at 	the time 	(traditional or modular). 	However, 	unrebutted
testimony reveals 	that 	at 	Bayer, 	and generally at 	the 	other
high 	schools 	in the District, 	teachers had a duty-free 	lunch
16

period 	with 	student 	supervision being 	provided 	by 	the
administrators 	at 	the 	schools 	and/or 	noon-time 	supervisors
outside 	the bargaining unit.
I 	concur 	with 	the 	rest 	of 	the 	determination made by my
colleagues 	regarding 	the 	request 	for 	costs 	and 	the
Association's 	appeal 	of 	the 	executive 	director's 	rejection 	for
lack of 	timeliness of 	its 	response 	to exceptions.
17