Modesto City Schools and High School District (PERB 0482E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MODESTO TEACHERS ASSOCIATION,
Charging Party, Case No. S-CE-741

Ve PERB Decision No. 482

MODESTO CITY SCHOOLS AND HIGH SCHOOL
DISTRICT,

January 16, 1985

Respondent.

Appearance: Ken Burt for Modesto Teachers Association.

Before Tovar, Jaeger and Morgenstern, Members.
DECISION

JAEGER, Member: The Modesto Teachers Association appeals
the dismissal of portions of its charge against the Modesto
City Schools and High School District which allege that the
District violated its duty to negotiate by unilaterally
altering teacher evaluation procedures, engaged in unlawful
reprisal against one teacher, and failed to respond to the
Association's request for certain information during its
processing of related grievances. The investigating regional
attorney for the Public Employment Relations Board concluded
that the facts alleged failed to state a prima facie violation
of the Educational Employment Relations Act and dismissed the

charge accordingly.

2
ORDER
The 	Board 	has 	reviewed 	the 	entire 	record, 	including 	the
exceptions 	and 	arguments 	filed 	by 	the 	Association 	on 	appeal,
and 	finding 	no 	error 	of 	fact 	or 	law 	in 	the 	regional 	attorney's
notice 	of 	dismissal 	{attached 	hereto) 	AFFIRMS 	the 	dismissal 	of
the 	charge.
Members 	Tovar 	and 	Morgenstern 	joined 	in 	this 	Decision.
2

1	
STATE Of CA .1i'ORNIA 	============= 	GEORGe D!:UXMfJIAN. Go~rl'IOr
~-==•~; ---·
:.\>iJSLIC EMPL 0YMENT RELATIOr· 	)OARD
Socrcmento Regional Office
l 031 	18th Street, Suite l 02
Sacramento, California 95814
(916) 322-3198
May 	21, 	1984
Ken Burt
Exe~utive 	Director
Modesto Teachers Association
1600 	Sunrise, 	Suite 	15
Modesto, 	CA 	95350
Re: 	Modesto 	Teachers 	Association 	Vo 	Modesto 	City Schools 	and
High 	School 	District 	-
Unfair 	Practice 	Charge 	No~·s-CE-741, 	1st Amended 	Charge
Dear 	Mr. 	Burt:
The 	above-referenced 	charge 	alleges 	that 	the 	Modesto 	City
Schools 	and 	High 	School District 	(District) 	has 	made 	a
unilateral 	change 	with 	respect 	to 	working 	conditions 	and
refused 	to 	provide 	information 	to 	the 	Modesto Teachers 	·
Association 	(Association 	or 	MTA), 	the 	exclusive 	representati.ve
of 	certificated 	employees._ 	This 	conduct·is 	alleged 	to 	violate
sections 	3543. 5 (a) , 	(b) , 	{c) , 	(d) 	and 	(e) 	of 	the· Educational
Employment 	Relations 	Act 	(EERA). 	·
I 	indicated 	to 	you 	in 	my 	letter 	dated 	April 	27, 	1984 	that
certain 	allegations 	in 	the 	above-referenced 	charge 	did 	not
state 	a 	prima 	facie 	case, 	and 	that 	unless 	you 	amended 	these
allegations 	to 	state 	a 	prima 	facie 	case, 	or 	withdrew 	them prior
to 	May 	4, 	1984, 	they 	would 	be 	dismissed. 	More 	specifically, 	I
informed 	you 	that 	if 	there 	were 	any 	factual 	inaccuracies 	or
additional 	facts 	which 	would 	correct 	the 	deficiencies 	explained
in 	that 	letter, 	you 	should 	amend 	the 	charge 	accordingly.
On 	April 	30, 	Charging 	Party 	requested 	an 	extension 	of 	the
deaaline 	due 	to 	illness. 	On 	May 	14, 	the 	first 	amended 	charge
was 	filed. 	Based 	on 	the 	facts 	contained 	in 	the 	first 	amended
charg~ 	as 	well 	as 	those 	discovered 	during 	the 	investigation,
only 	the 	allegations 	that 	the 	District 	denied 	a 	request 	for
information 	concerning 	the 	~rievances 	of Ms. 	Gurney, 	Mr. 	Delao,
Mr. 	Driscoll, 	Ms. 	Trujillo, 	and 	Mr. 	Choate 	state 	a 	prima
lonly 	part 	of 	the 	request 	for 	information 	regard 	the
grievance 	of 	Mr. 	Delao, 	Mr. 	Driscoll 	and 	Ms. 	Trujillo 	states 	a
asprima 	facie 	case. 	The 	remainder 	of 	the 	allegation 	is 	dismissed
explained 	in 	the 	text 	of 	this 	letter.

Ken 	Burt
May 	21, 	1984
Page 	2
facie 	caseo 	The 	remainder 	of 	this 	charge 	fails 	to 	state 	a
prima 	facie 	case 	and 	is 	dismissed 	for 	the 	reasons 	which 	follow.
1. 	The 	allegation 	that 	the 	District 	unilaterally 	changed 	the
policy concerning 	evaluations 	does 	not 	state 	a 	prima 	facie 	case
because 	the 	Charging 	Party 	has 	not 	demonstrated 	that
Mr. 	Sabatino's 	second 	evaluation 	was 	not 	performed 	in 	accord
with 	District 	policy. 	Charging 	Party 	alleges 	that 	the 	status
quo 	allowed 	for 	a 	second 	year 	evaluation 	only 	when 	the 	first
year 	evaluation 	showed 	serious 	deficiencies 	and 	then, 	the
evaluation 	would 	cover 	only 	those 	areas 	where 	the 	def.iciency
occurred. 	As 	detailed 	in 	my April 	27, 	1984 	letter 	(Exhibit 	1),
Modesto Citv Schools 	(9/27/83) 	PERB 	Decision Noe 	347 	concluded
that 	back-to-back 	evaluations 	of 	teachers 	had 	been 	allowed
under 	the 	District 	practice 	during 	the 	1970's 	and 	until 	1981.
On May 	4, 	1981, 	the 	District 	and 	the 	Association 	signed 	a 	side
letter 	which 	reads:
The 	following 	will 	be 	effective
September 	1, 	1981. 	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.
Alth.ough 	Charging 	Party 	asserts 	that 	this 	language 	was 	intended
to 	limit 	the 	second 	year 	evaluation 	to 	the 	area 	where 	the
serious 	deficiency 	existed, 	a 	reading 	of 	the 	passage 	does 	not
support 	such 	an 	interpretation. 	·
In 	addition,:Charging 	Party 	argues 	that 	the 	agreement 	requir
the 	existence 	of 	serious 	deficiencies. 	Mr. 	Sabatino's
evaluation 	stated 	that 	he 	was 	below 	District 	standards, 	and
Charging 	Party has 	failed 	to 	demonstrate 	why 	such 	performanc
is 	not 	to 	be 	considered 	a 	"serious 	deficiency." 	Accordingly
Charging 	Party 	has 	failed 	to 	show 	that 	Mr. 	Sabatino~s 	second
year 	evaluation 	constitutes 	a 	change 	in 	the 	past 	practice 	an
this 	allegatiori 	is 	dismissed.
es
e'
,
d
2. 	The 	first 	amended 	charge 	additionally 	states 	that
Mr. 	Sabatino 	was 	"given 	various 	documents 	which 	were 	written
without 	affording 	him 	any 	notice 	of 	the 	allegations 	against 	him

Ken Burt
May 	21, 	1984
Page 	3
or 	without 	resort 	to 	effective Association 	representation."
This 	conduct 	is 	alleged 	to 	constitute 	a 	unilateral 	change 	and 	a
reprisal 	against 	Mr. 	Sabatino 	for 	seeking 	Association
representation. 	In 	addition, 	it 	is 	alleged 	the 	District 	took
reprisals 	against 	Mr. 	Sabatino 	by 	making 	false 	statements 	about
him.
As 	explained 	in 	the 	April 	27 	letter, 	a 	prima 	facie 	case 	of a
unilateral 	change 	requires 	a 	showing 	that 	the 	District 	changed
a 	negotiable 	policy. 	There 	is 	no 	clear 	and 	concise.statement
in 	the 	charge 	(as 	required 	by Board 	Rule 	32615{a) (5)) 	nor 	was
any 	information 	re·vealed 	during 	the 	investigation, 	indicating
what 	the 	policy 	concerning 	the 	presentation 	of 	documents 	to 	an
employee 	was 	or 	is. 	Without 	evidence 	of 	the 	past 	practice, 	it
·is 	impossible 	to 	determine 	whether 	a 	change 	has 	occurredo
Therefore, 	no 	prima 	facie 	case 	has 	been 	made 	outa
Violations 	of EERA 	section 	3543.S(a) 	requires 	the 	Charging
Party demonstrate: 	(1) 	the 	employee 	has 	exercised 	rights 	under
_the 	EERA; 	(2) 	the 	employer 	has 	imposed 	or 	threatened 	to 	impose
reprisals, 	discriminated 	or 	threatened 	to 	discriminate, 	or
· otherwise 	interfered 	with, 	restrained, 	or 	coerced 	the 	empl2Yee
because 	of 	the 	exercise 	of 	rights 	guaranteed 	by 	the EERA .. 	··
Carlsbad 	Unified 	School 	District 	(1/30/79) 	PERB 	Decision
No. 	89; 	Novato 	Unified 	School 	District 	(4/30/82) 	PERB 	Deci.sion.
No. 	210. 	Although 	the 	charge 	does 	not 	specifically 	state 	what
rights 	Mr. 	Sabatino 	had 	exercised, 	it 	was 	discovered 	during 	the
investigation 	that 	he 	had 	an Association 	representative 	appear
with 	him 	for 	two 	meetings 	with 	the 	District during 	the 	fall 	of
1983. 	Charging Party 	has 	not 	presented 	any 	further 	evidence 	of
protected 	conau·ct 	nor 	has 	it 	alleged 	facts 	supporting 	an 	.
inference 	that 	the 	documents 	were 	given 	to Mr. 	Sabatino or 	the
alleged 	false 	statements 	made 	because 	of Mr. 	Sabatino's
protected 	a6tivities. · Without 	these 	facts 	these 	allegations 	do
not 	state 	a 	prima 	facie 	case 	and 	are 	dismissed.
3. 	The 	allegations 	that EERA 	sections 	3543.S(d) 	and 	(e) 	are
dismissed 	based 	on 	the 	reasoning 	contained 	in 	the 	April 	27
letter.
4. 	The 	allegations 	that 	the 	District 	refused 	to 	provide
information 	to 	the 	Association 	are 	contained 	in 	paragraph 	11 	of
the 	chargeo 	As 	explained 	in 	the 	April 	27 	letter, 	the
Association 	must 	demonstrate 	that 	the 	information 	requested 	is
necessary 	and 	relevant 	to 	the 	processing 	of 	the 	grievances
before 	a 	prima 	facie 	case 	is 	made 	out.

Ken Burt
May 	21, 	1984
Page 	4
Specifically, 	with 	respect 	to 	the 	allegation 	contained 	in
paragraphs 	lla 	of 	the 	amended 	charge, 	the 	Association 	gives 	two
reasons 	to 	support 	its 	request 	for 	informationo 	First, 	the
Association 	argues 	that 	the 	District 	must 	provide 	all 	other
requests 	for 	leave 	of 	absence 	so 	that 	the Association 	can
determine 	whether 	the 	leave 	of 	absence 	provisions 	were 	applied
in 	a 	discriminatory 	manner 	to 	these 	grievants. 	Second,
according 	to 	the 	Association 	all 	other 	notices 	of 	unauthorized
absence 	must 	be 	provided 	in 	order 	for 	the 	Association 	to
determine 	whether 	the 	notices 	received 	by 	the 	grievants,
Mr. 	Delao, 	Mr. 	Driscoll 	and 	Ms. 	Trujillo, 	were 	timely. 	As 	the
collective 	bargaining 	agreement 	prohibits 	the 	District 	from
acting 	discriminatorily, 	the 	Association 	has 	demonstrated 	that
its 	request 	for 	leave 	of 	absence 	material 	is 	necessary 	and
relevant 	to 	the 	processing 	of 	these 	grievances. 	However, 	the
collective 	bargaining 	agreement 	does 	not 	contain 	a 	provision
which 	prohibits 	the 	giving 	of 	"untimely" 	notices 	of
_unauthorized 	absence. 	Although 	the 	actual grievances, 	which
were 	examined 	during 	the 	investigation, 	refer 	to 	a 	finding 	by
.an 	arbitrator 	in 	a 	different 	case 	that 	a 	notice 	of 	unauthorized
absence 	given 	four 	months 	after 	the 	fact 	was 	a 	punitive
measure, 	there 	is 	no 	mention 	in 	the 	grievance 	that 	the 	cont-ract
was 	violated 	by 	an 	untimely 	notice. 	In 	addition, 	the
Association 	can 	argue 	"untimeliness" 	from 	the 	facts 	of 	the
instant 	grievance 	in 	comparison 	to 	what 	the 	arbitrator 	found
untimely 	in 	the 	referred-to 	case. 	Accordingly, 	the 	charging
party 	has 	not 	demonstrated 	that 	it 	is 	relevant 	and 	necessary
for 	the 	Association 	to 	be 	given 	copies 	of 	all 	notices 	of
unauthorized 	absences •. The 	allegation 	that 	the 	District 	failed
to 	provide 	copies 	of 	notice 	of 	unauthorized 	absences 	does 	not
state 	a 	prima 	facie 	ca-se 	and 	is 	dismissed.
5. 	With 	respect 	to 	the 	allegation 	in 	paragraph 	llc 	of 	the
charge, 	the 	additional 	information 	contained 	in 	the 	amended
charge 	does 	not 	alter 	the 	conclusion 	reached 	in 	the April 	27
letter. 	Mr. 	Hambric's 	requests 	for 	information 	were 	answered
by 	the 	District 	and 	Charging 	Party 	has 	not 	demonstrated 	why
these 	answers 	are 	inadequate. 	Thus 	no 	prima 	facie 	case 	has
been 	stated 	and 	the 	allegation 	is 	dismissed.
Pursuant 	to 	Public Employment 	Relations Board 	regulation
section 	32635 	(California Administrative 	Code, 	title 	8,
part 	III), 	you 	may 	appeal 	the 	refusal 	to 	issue 	a 	complaint
(dismissal) 	to 	the 	Board 	itself.

Ken 	Burt
May 	21, 	1984
Page 	5
Right 	to 	Appeal
You 	may 	obtain 	a 	review 	of 	this 	dismissal 	of 	the 	charge 	by
filing 	an 	appeal 	to 	the Board 	itself 	within 	twenty 	(20}
calendar 	days 	after 	service 	of 	this 	dismissal 	(section
32635(a)). 	To 	be 	timely 	filed, 	the 	original 	and 	five 	(5)
copies 	of 	such 	appeal 	must 	be 	actually 	received 	by 	the 	Board
itself 	before 	the 	close 	of 	business 	{5:00 	p.m.) 	on 	June 	10,
1984, 	or 	sent 	by 	telegraph 	or 	certified 	United 	States 	mail
postmarked 	not 	later 	than 	June 	10, 	1984 	(section 	32135). 	The
Board's 	address 	is:
Public Employment 	Relations Board
1031 	18th Street
Sacramento, 	CA 	95814
If 	you 	file 	a 	timely 	appeal 	of 	the 	refusal 	to 	issue 	a
complaint, 	any 	other 	party 	may 	file 	with 	the Board 	an 	original
and 	five 	(5) 	copies 	of 	a 	statement 	in 	opposition 	within 	twenty
(20} 	calendar 	days 	following 	the 	date 	of 	service 	of 	the 	appeal
(section 	32635{b)).
Service
All 	documents 	authorized 	to 	be 	filed 	herein 	must 	also 	be
"served" 	upon 	all 	parties 	to 	the 	proceeding, 	and 	a 	"proof 	of
service" 	mqst 	accompany 	the 	document 	filed 	with 	the 	Board
itself 	(see 	section 	32140 	for 	the 	required 	contents 	and 	a
sareple 	form)o 	The 	document 	will 	be 	considered 	properly
"served" 	when 	personally 	delivered 	or 	deposited 	in 	the
first-class 	mail 	postage 	paid 	and 	properly 	addressed.
Extension 	of 	Time
A 	request 	for 	an 	extension 	of 	time 	in 	which 	to 	file 	a 	document
with 	the Board 	itself 	must 	be 	in 	writing 	and 	filed 	with 	the
Board 	at 	the 	previously 	noted 	address. 	A request 	for 	an
·extension 	must 	be 	filed 	at 	least 	three 	(3) 	calendar 	days 	before
· the 	expiration 	of 	the 	time 	required 	for 	filing 	the 	document.
The 	request 	must 	indicate- good 	cause 	for 	and, 	if 	known, 	the
position 	of 	each 	other 	party 	regarding 	the 	extension, 	and 	shall
be 	accompanied 	by 	proof 	of 	service 	of 	the 	request 	upon 	each
party 	(section 	32132).

Ken 	Burt
May 	21, 	1984
Page 	6
Final 	Date
If 	no 	appeal 	is 	filed 	within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Very 	truly 	yours,
DENNIS 	M. 	SULLIVAN
General 	Counsel
By~
Regional 	Attorney

· ·sT~TE OF CALIFORNIA 	GcORCf DfUkM!JIAN, Qo,.,nor
·,usuc EMPLOYMENT RELATIONS BOARD.
Sacramento Regional Office
1031 	18th Street, Suite 102
Sacramento, California 95814
(916} 322-3198
April 	27, 	1984
Ken 	Burt·
Executive Director
Modesto 	Teachers 	Association
1600 sunrise, 	suite 	15
Modesto, 	CA 	95350
Re: 	Modesto 	Teachers 	Association 	v. 	Modesto City 	Schools
·and High 	School 	District
Unfair 	Practice 	Charge 	~a. 	S-CE-741
Dea.r 	Mr • 	Burt:
The 	above-referenced 	cha.rge 	alleges 	that 	the 	Modesto City
Schools 	and 	High 	School 	District 	(District) 	nas 	made 	a
unilaterai 	change-with 	respect 	to 	working 	conditions 	and
refused 	to 	provide 	information 	to 	the 	Hodesto 	Teachers
Association 	(Association 	or 	MTA), 	the exclusive 	representative
· of. certificated employees. 	This 	conduct 	is 	alleged 	to 	violate
sections. 3543 .5 (a), 	(b), 	(c), 	(d) 	and 	(e) 	of 	the 	Educational
Employment 	Relations 	Act 	{EERA).
Mv 	investigation revealed 	the 	following 	facts. 	Carmen 	Sabatino
ii 	a 	Disti'u::t teacher 	r·epresented "by 	the 	Association. 	·o~
October 	26: 	1982, 	Mr. 	Sabatin·a was 	evaluated 	over 	"all 	aspects
of 	the 	Stul.l process." 	T'"ne 	evaluator 	commented:
Mr. 	Sabatino 	is 	below 	District 	standards 	in
his 	teaching 	program. 	It 	is 	recommended
that he 	be 	reevaluated 	next 	year.
Mr. 	Sabatino 	needs 	to 	improve 	in 	the
following 	areas:
1. 	s.taying 	in 	the 	classroom 	the 	entire
period when 	he 	is 	responsible 	far 	students.
2. 	·Being 	to 	class 	on 	time.
3. 	Pre9arin9 	lessons 	and 	arranging 	for
instructional 	materials •.
4. 	Following 	District 	~nd 	school 	policy 	on
attendance 	accounting.
EXHIBIT 	I

Ken Burt
April 	27, 	1984
Page 	2
On 	September 	14, 	1983, 	Mr. 	Sabatino 	received 	a 	memorandum 	from
a 	District 	administrator 	which 	indicated 	that 	Mr. 	Sabatino
would 	be 	evaluated 	over 	all 	aspects 	of 	the 	Stull 	process 	for
the 	school 	year 	1983-84.
The 	District 	and Association 	have 	a 	signed 	letter 	of
understanding 	dated 	May 	4, 	1981, 	which 	stat~s 	in 	part:·
If 	serious 	deficiencies 	exist 	and 	are
identified 	during 	the 	evaluation 	process,·
the 	District 	may 	offer 	assistance 	to 	and
monitor 	and 	record 	the 	respon~e 	of 	the
employee 	during 	the 	following· year. 	This
process 	shall 	not 	be 	used 	as 	a 	means 	of
harassment 	of 	any 	employee.
The 	issue 	of 	whether 	the 	District 	can 	schedule 	back-to-back
evaluations 	over 	the 	entire 	Stull 	process 	was 	the 	subject 	of 	a
previous 	unfair 	practice 	charge 	resolved 	by 	the 	Public
Employment Relations Board 	in Modesto 	Cita Schools 	(9/27/83)
PERB 	Decision No .. 	347. 	That 	decision 	rea 	sat 	page 	15:
Based 	on 	the 	totality of 	the 	evidence
presented, 	we 	conclude 	that MTA 	has 	failed
tO demonstrate 	that 	the 	District 	has
unilaterally 	alt~red 	its 	evaluation 	policy
b~O!luse 	we· find· that 	the 	District 	has 	·
regularly 	conducted 	consecutive 	evaluations
of 	substandard 	teachers. .
During 	the 	period 	September 	19, 	1983, 	through 	January 	19, 	1984,
Mr. 	Sabatino 	was 	given 	several 	memoranda 	from 	the 	District
administration which 	discussed 	areas 	where 	the 	administration
felt 	that 	Mr. 	Sabatino 	had 	been 	deficient 	in 	his 	dutifsA 	Some
of 	these 	memoranda 	were 	placed 	in 	his 	personnel 	file.·-,
On 	September 	19, 	1983, 	John 	Delao, 	William Driscoll, 	and
Gail 	Trujillo 	f1led 	a 	grievance 	against 	the 	District 	generally
concerning 	a 	denial 	of 	personal 	necessity 	leave 	and 	the
placement 	of 	a 	notice 	of 	unauthorized 	absence 	in 	their
personnel 	files. 	As 	part 	of 	this 	grievance 	the 	Association
requested:
A. 	Names 	of 	all 	those 	sent 	notices 	of
unauthoriped 	absence 	for 04 the 	1982-83 	school·
year 	and 	copies 	of 	each 	notice.

Ken Burt
April 	27, 	1984
Page 	3
B. 	Copies 	of 	all 	leaves 	of 	absences
approved 	for 	the 	1982-83 	school 	year 	with
backup 	data.
On 	November 	4, 	1983, 	the 	District 	denied 	these 	requests 	as
irrelevant 	to 	the 	grievance, 	as 	well 	as 	burdensome 	and
oppressive.
On November 	1, 	1983, 	Patricia 	Gurney 	filed 	a 	gr,ievance 	against
the 	District 	alleging 	that 	she 	had 	not 	been 	proper·1y 	paid 	as 	a
member 	of 	the 	bargain·ing 	unit. 	As 	part 	of 	the 	grievance 	the
Association requested:
A. 	Please 	indicate 	if 	art 	classes 	were
scheduled 	at 	Downey 	High 	School prior 	to
September 	1, 	1983. 	If 	so, 	what 	was 	the
projected 	enrollment.
B •. 	Who, 	if 	anyone, 	was 	scheduled 	to 	teach
art: at Downey 	High 	School prior 	to
September 	l, 	1983,, 	for 	the 	1983-84 	school
year-:·
c:•. - On 	what 	date 	in 	the 	1983-84 	school 	year
were 	art 	classes 	offered 	at 	Downey 	High
school.	·
On 	December···6:, 	t~e 	District 	indicated 	the 	information would
follow,. 	however, 	no 	response 	from 	the 	District 	has 	been 	given
to date.,
On 	November 	17, 	1983, 	Gerard 	Hambric 	filed 	a 	grievance 	against_
~he 	District alleging 	that 	he 	was 	being 	paid 	on 	the 	incorrect
step. of 	the 	salary 	schedule. 	As 	part 	of 	this 	grievanp~ 	the
Association 	requested 	the 	District provide 	the 	following
information:
A. 	Please 	indicate 	if 	there 	was 	any
substitute 	teacher 	work 	performed 	in
September, 	October, 	through 	November 	8, 	1981.
B. 	If 	so, 	was 	the 	work 	performed 	by 	any
persons 	without 	•4491a" 	rights?
c. 	Was 	the 	grievant 	giv~n 	the 	opportunity
for 	substitut~ 	work? 	If 	so, 	when 	and 	by
whom.

Ken Burt
April 	27, 	1984
Page 	4
On 	December 	5, 	1983, 	District 	director 	of 	personnel 	responded
to 	the 	request 	for 	information 	stating:
A. 	Yes, 	substitute 	teacher 	work was
performed 	during 	September, 	October,
November 	1981.
B. 	tam 	unable 	to 	respond 	to 	whether 	people
without 	"44918" 	rights 	served 	as
substitutes. 	Furthermore, 	the 	issue 	is 	not
relevant 	to 	grievant 	(see 	answer 	to 	"C"
below).
C. 	I 	am 	informed 	and 	believe 	that 	grievant
had 	no 	interest 	in 	substituting 	and 	that
grievant 	did 	not 	sign 	up 	to 	be 	called 	as 	a
substitute 	during 	September, 	October, 	and
November 	1981. 	The 	answer 	to 	this 	question
is 	more 	fully 	within 	grievant's 	knowledge.
On 	January 	4, 	1984, 	Leonard 	Choate 	filed 	a 	grievance 	against
the 	District 	alleging 	generally 	an 	improper 	denial 	of 	personal
necess-ity 	leave 	and 	threatened 	placement 	of 	a 	notice 	of
unauthorized 	absence 	in his 	personnel 	file. 	The 	Association
requested 	the 	following 	information 	as 	part 	of 	this 	grievance:
A. -;.,~P!ease ·supply 	all 	requests 	for 	personal
necessity 	leave, 	personal 	leave, 	and 	partiai
paid 	leave 	for 	the 	1982-83 	school year 	and
to 	date 	for 	the 	current 	school year 	1983-84.
B. 	Please- provide 	backup 	sheets 	for 	the
requests 	(any 	documents 	attached 	or 	filed
with 	the 	reqQests 	explaining 	the 	requests).
On 	March 	16, 	1984, 	the 	District denied 	the 	request 	for
information 	as 	overly 	burdensome, 	irrelevant 	and 	violative of
other 	employees' 	privacy 	rights.
The 	allegations 	contained 	in 	this 	charge 	with 	th~ 	exception 	of
the 	denial 	of 	request 	for 	information 	concerning 	Ms. 	Gurney 	do
not 	state 	a 	prima 	~acie 	case 	for 	the 	reasons 	which 	follow.
first, 	in 	determining 	whether 	a 	party 	has 	violated 	section
3543.S(c)· of· th~ 	EERA, 	the 	Public•Employment 	Relations 	Board

Ken Burt
April 	27, 	1984
Page 	5
(PERB) 	utilizes 	either 	the 	"per 	seK 	or 	the 	"totality of 	the
conduct" 	test, 	depending 	on 	the 	specific 	conduct 	involved 	and
the 	effect of 	such 	conduct 	on 	the 	negotiating 	process.
Stockton Unified 	School District 	(11/3/80) 	PERB 	Decision No.
143. 	Unilateral 	changes 	are 	considered 	"per 	seq 	violations 	if
certain 	criteria 	are 	met. 	Those 	criteria 	are: 	(1) 	the
employer 	has 	implemented 	a 	change 	in 	policy 	concerning 	a 	matter
within 	the 	scope 	of 	representation, 	(2} 	the 	change- 	is
implemented 	prior 	to 	the 	employer 	notifying 	the 	~xclusive
representative 	and 	giving 	it 	an 	opportunity 	to 	request
negotiations. 	Walnut Valley Unified 	School District 	(3/30/81)
PERB 	Decision .No. 	l60~ 	Grant 	Joint 	Union 	High 	Schoor District:
(2/26/82) 	PERB 	Decision No. 	196. 	'
Although 	the 	charge 	alleges 	that 	the 	District 	has 	made 	a
unilateral 	change 	with 	regard 	to 	the 	treatment 	of 	Mr. 	Sabatino
there 	are 	no 	facts 	presented 	which 	indicate 	that 	any 	such
change 	has 	been 	made. 	The 	language 	of 	the 	May 	4, 	1981 	letter
of 	understanding 	and PERB 	Decision No. 	347 	clearly 	state 	what
the 	practice 	has 	been 	in 	the 	District. 	PERB 	regulation
32615 (a-) (5) 	requires: 	_
_.A clear 	and 	concise 	statement 	of 	facts 	and.
conduct 	alleged 	to 	constitute 	an 	unfair
·.practice, 	including, 	where 	known, 	the 	time
and _place 	of 	each 	instance 	of 	respondent's
C:Qnduct, ·and ·the 	name 	and 	capacity 	of 	each
person: involved.
There 	have 	been 	no 	facts 	presented 	in 	the 	charge 	nor 	discovered
during 	the 	investigation 	which 	indicate 	that 	Mr. 	Sabatino 	has
not 	been 	treated 	in 	accord 	with 	past 	practice. 	Accordingly,/
.the· allegations 	of 	the 	unilateral 	change 	are 	insufficient 	to
state a 	prima 	facie.base 	and 	will 	be 	dismissed.
Second,. 	the 	employer 	is 	obligated 	by 	law 	to 	supply 	the
exclusive 	rep~esentative 	with 	information 	that 	is 	necessary 	and
relevant 	to 	the 	organization's 	performance 	of 	its
representational 	function. 	Stockton 	Unified 	School District,
supra. 	Failure 	to 	do 	so 	constitutes 	a 	violation 	of 	EERA
section 	3543.S(c). 	Although 	the 	Charging 	Party 	has 	provided
copies 	of 	the 	grievances 	and 	the 	District's 	responses, 	there
are 	no 	facts 	contained 	in 	these 	documents 	nor 	in 	the 	charge
which 	provide 	the 	basis 	of 	a 	finding 	that 	the 	information
re·quested 	was. necessary 	and 	rele'Vant 	to 	the 	Association• s

Ken Burt
April 	27, 	1984
Page 	6
pursuit 	of 	the 	grievances, 	with 	the 	exception 	of 	the 	grievance
concerning Ms. 	Gurney. 	Without 	this 	information 	the 	charge
does 	not 	s~ate 	a 	prima 	facie 	case ·and 	will 	be 	dismissed. 	Thus,
with 	the 	exception 	of 	the 	request 	for 	information 	regarding 	the
grievance 	of 	Ms. 	Gurney 	the 	charge 	does 	not 	state 	a 	prima 	faci~
violation 	of 3543.S{c). 	In 	the 	same 	way, 	the 	alleged
derivative violations 	of 	sections 	3543~5(b} 	and 	(a) 	ace 	also
insufficient 	and 	will 	be 	dismissed.
Charging Party 	also 	alleges 	that 	section 	3543.S{d) 	"has 	been
violated. 	To 	demonstrate 	a 	violation 	of 	this 	section, 	the
Charging Party 	is 	required 	to 	present 	evidence 	which 	would 	show
that 	the 	District 	has 	dominated 	or 	inte'rfered 	with 	the
formation 	or 	administration 	of 	the 	employee 	organization, 	or
contributed 	financial 	or 	other 	support 	to 	it, 	or 	in 	any 	way
encouraged 	employees 	to 	join 	any 	organization 	in 	prefe£ence 	to
another. 	There 	are 	no 	facts 	presented 	in 	the 	charge 	nor 	any
discovered 	during 	the 	investigation 	which 	indicate 	that 	the
District has 	acted 	in 	this 	way. 	Without 	such 	facts, 	this
al.legation 	wil.l 	be· dismissed.
The 	charge 	also, contains 	an 	allegation 	tha·t 	section 3543.S(e)
has 	been 	violated. 	To 	find 	that 	a 	prima 	facie 	case 	of 	.
violation of 	this 	section 	exists 	it 	must 	be 	determined 	that 	the
District 	has 	refused 	to 	participate 	in 	good 	faith 	in 	tl)e
impasse 	procedure. 	There 	are 	no 	facts 	in 	the 	charge, 	nor 	any
discovered 	durlng 	the 	investigation-which 	indicate 	that 	the
District was~ ...involved 	in 	the 	impasse 	procedures 	with 	regard 	to
this 	particular 	change. 	Again, 	without 	such 	facts, 	this
allegation 	will 	be 	dismissed.
For 	these 	reasons, 	all 	allegations 	with 	the 	exception 	of 	the
r~quest 	for 	information 	concerning 	the 	grievance of 	Ms. 	Gurney '
contained 	in 	charge 	number 	S-CE-741, 	as 	presently 	wrilf~n, 	does
not 	state a 	prima 	facie 	case. 	If you 	feel 	that 	there 	~e 	any
factual 	inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts
which 	would 	correct 	the deficiencies 	explained 	abo'ITe, 	please
amend 	the 	charge 	accordingly. 	The 	amended 	charge 	should 	be
prepared 	on 	a 	standard PERB 	unfair 	practice 	charge 	form 	cl.early
labeled 	First 	Amended 	Charge, 	contain~ 	the 	facts 	and
allegations 	you 	wish 	to make, 	and 	be 	signed 	under 	penalty of
perjury 	by 	the 	charging 	party. 	The 	amended 	charge 	must 	be
served 	on 	the 	respondent 	and 	the 	original 	proof 	of 	service 	must
be 	filed 	with 	PERB. 	If 	I 	do 	not 	receive 	an 	amended 	charge 	or

Ken Burt
April 	27, 	1984
Page 	7
withdrawal 	from 	you 	before 	May 	4, 	1984, 	I 	shall 	dismiss 	the
above-described 	allegation 	from 	your 	charge. 	If 	you 	have 	any
questions 	on 	how 	to 	proceed, 	please 	call 	me 	at 	(916) 	322-3198.
Sincerely 	yours,
;f~~ 	..
Robert 	Tho
Regi.onal 	Attorney
mpson~