Butte Community College District (PERB 0555E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BUTTE 	COLLEGE 	EDUCATION ASSOCIATION,
CTA/NEA.
Charging 	Party,
v.
BUTTE 	COMMUNITY 	COLLEGE 	DISTRICT,
Respondent.
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) 	Case No. 	S-CE-7O3
PERB Decision No. 	555
December 30, 	1985
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FRANK 	FLORIO.
Charging 	Party,
v.
BUTTE 	COMMUNITY COLLEGE 	DISTRICT,
Respondent.
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) 	Case 	No. 	S-CE-705
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Appearances: 	Brislain, 	Zink & Lenzi 	by Albert J. 	Lenzi, 	Jr.
for Frank Florio; 	Brown & Conradi 	by Penn Foote 	for 	the Butte
Community 	College 	District.
Before Morgenstern, 	Burt and Porter, 	Members.
DECISION
BURT, 	Member: 	This case 	is 	before 	the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed 	by
Frank Florio 	(Charging Party) l to 	the 	proposed 	decision of 	an
1Complaint 	No. 	S-CE-703 	and 	complaint No. 	S-CE-705 	were
consolidated 	for 	hearing 	before 	the ALJ. 	However, 	because 	only
Charging 	Party Frank Florio 	excepted 	to 	the 	ALJ's 	proposed
decision, 	we address 	only complaint No. 	S-CE-705.
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administrative 	law 	judge 	(ALJ) 	dismissing 	an unfair 	practice
complaint 	in which Charging 	Party 	alleged 	that 	the 	Butte
Community College 	District 	(District) 	had 	violated 	the
Educational 	Employment 	Relations 	Act 	(EERA or 	Act)2 by, 	inter
alia, 	unilaterally 	changing a 	transfer 	procedure 	and 	denying
him a 	sabbatical 	leave.
Florio 	initially 	charged 	that 	the 	District 	had 	unilaterally
changed 	both 	its 	transfer 	procedure 	and 	its 	grievance 	procedure
in violation of 	EERA section 3543.5(c) 	and. 	derivatively,
subsections 	(a) 	and 	(b). 	His 	charge also alleged 	that he had
been denied 	a 	postponement 	of 	a 	sabbatical 	leave 	in retaliation
for 	his 	exercise 	of 	rights 	protected 	under 	the EERA. 	On
February 24, 	1984, 	the regional 	attorney dismissed 	the 	charge
regarding 	the 	grievance 	procedure 	for 	failure 	to 	state 	a 	prima
facie 	case, 	but 	issued a 	complaint 	on 	the 	remaining
allegations. 	A hearing was held on June 	14. 	1984, 	and 	the ALJ
issued 	his 	proposed 	decision 	on 	September 	7. 	1984 	dismissing
the 	complaint. 	Florio 	excepts 	to 	the ALJ's 	finding 	that 	the
phrase 	"administrative 	requirements" 	in 	the 	transfer 	section of
the 	parties' 	collective 	bargaining 	agreement 	gave 	the District
"a great deal 	of 	latitude" 	in reassigning employees and. 	thus,
that 	the District's 	transfer 	of 	Florio 	did 	not 	constitute 	a
unilateral 	change.
2The EERA 	is 	codified 	at Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to 	the Government Code.
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For 	the 	reasons 	that 	follow, 	we 	affirm the ALJ's 	finding
that 	the District 	did 	not 	unilaterally 	change 	its 	transfer
procedure 	in violation of 	the EERA.
FACTS
Charging Party was 	employed 	by 	the District 	as 	a 	counselor
from 	1977 	until 	1984 	and 	has 	been 	in 	the 	certificated 	employee
unit 	for 	which 	the 	Butte 	College Education Association, 	CTA/NEA
(Association) 	has 	been the exclusive 	representative 	since 	1978.
Charging 	Party's 	unfair 	practice 	complaint 	stems 	from 	his
involuntary 	transfer 	by 	the 	District 	in January 	1984 	from a
counseling 	position 	to 	an 	instructional 	position as 	acting
coordinator 	of 	the 	campus 	learning 	resource 	center. 	At 	the
time 	of 	his 	transfer, 	Florio 	ranked 	third 	in seniority among
six full-time counselors. 	Prior 	to his 	transfer, 	he had
occasionally volunteered 	to 	teach 	classes 	in addition 	to
counseling. 	Over 	the 	last 	14 years, 	six counselors 	had
voluntarily 	transferred 	to 	teaching 	positions.
In the 	fall 	of 	1982, 	Florio 	applied 	for 	a 	sabbatical 	leave
to 	extend 	through 	the 	fall 	and winter 	quarters 	of 	the 	1983-84
school year. 	During his 	sabbatical, 	Florio 	planned 	to 	develop
a 	system of 	electronic 	instruction 	for 	use 	in District
classrooms 	located 	in areas 	remote 	from the 	campus. 	The
college's 	Advisory 	Sabbatical 	Leave 	Committee, 	chaired 	by Ernie
Matlock, 	vice-president for 	instruction, 	reviewed Florio's
application and 	voted 	to 	approve 	his 	sabbatical 	in December
1982.
W	
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Florio 	testified 	that 	there 	had 	been 	some 	discussion 	of 	his
teaching as 	a 	condition to 	receiving 	the 	sabbatical, 	but 	that
he 	had 	understood 	he would 	teach 	only 	one 	class 	in 	conjunction
with 	the 	sabbatical 	project 	and 	it would 	be 	"the 	prototype
class" 	for 	the project. 	Florio wrote to Matlock on
December 	15. 	1982 	to 	request 	that 	the 	sabbatical 	be 	postponed,
saying 	he was 	concerned 	that 	teaching was 	a 	condition 	for 	his
receiving 	the 	sabbatical. 	Florio 	subsequently 	spoke 	to Matlock
and 	decided 	to 	seek 	a 	reduction of 	the 	sabbatical 	from two
quarters 	to one. 	rather 	than ask for 	postponement. 	The
one-quarter 	sabbatical was 	approved 	by 	the 	school 	board 	on
February 23, 	1983. 	and that approval was 	not expressly
conditioned 	upon 	Florio's 	teaching 	a 	class 	following 	his 	return
from 	sabbatical.
On June 9. 	1983, 	Florio met with Kenneth Lucas. 	District
vice-president 	for 	student 	personnel 	services 	and 	supervisor 	of
college counselors, 	in order 	to discuss Florio's 	job
performance. 	Lucas 	testified 	that 	he 	told Florio 	he was
considering 	a 	recommendation 	to 	transfer 	Florio 	from 	counseling
to a 	teaching position. 	Lucas 	testified 	that 	students 	had
complained 	of 	dissatisfaction with Florio 	and 	that 	an
inordinate 	number 	of 	students 	had 	switched 	from Florio 	to 	other
counselors. 	Lucas 	said 	there were 	also 	faculty members 	who
refused 	to 	send 	students 	to 	Florio 	and 	coordinators 	who 	had
complained 	about 	him, 	and 	that 	he 	had 	spoken 	to Florio 	about
these 	complaints 	on 	some 	five 	to 	seven occasions 	since 	1978.
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Florio's 	testimony regarding 	the 	June 	9 	meeting 	presented 	a
somewhat 	different 	version 	of 	his 	conversation with Lucas.
Florio 	testified 	that 	Lucas 	said 	he would 	be 	discussing
Florio's 	job 	performance 	with 	the 	District 	superintendent 	and
that 	there was 	some 	possibility 	counselors would 	have 	to
teach. 	However, 	Florio 	said 	there 	had 	been no 	direct 	statement
that 	he would 	be 	assigned 	to 	an 	instructional 	position.
Nonetheless, 	on June 22, 	1983, 	Florio received a 	letter
from District 	Superintendent Wendell 	Reeder 	stating 	that 	he
would 	be 	transferred 	to 	instruction upon his 	return 	from
sabbatical.
On July 13, 	1983, 	an attorney retained 	by Florio wrote 	to
Reeder 	stating 	that 	Florio 	strongly 	objected 	to 	being
reassigned. 	Matlock 	met 	with Florio 	and 	told 	him 	that 	his
impending 	transfer was unrelated 	to 	the 	sabbatical 	leave. 	On
August 	16, 	1983, 	Florio wrote to 	the board of 	trustees asking
for 	a 	one-year 	postponement 	of 	his 	sabbatical. 	At 	a 	board 	of
trustees meeting on August 	31, 	1983, 	Florio gave health
problems 	as 	the 	reason for 	his 	request, 	but 	the 	board 	rejected
the 	request 	and 	directed 	him 	to 	either 	take 	the 	sabbatical 	as
formerly 	approved 	or 	abandon 	it.
On September 	6, 	1983, 	Florio 	notified 	the District 	that 	he
wished 	to 	cancel 	his 	sabbatical. 	Dean of Administrative
Services 	James Mitchell 	advised 	Florio 	that 	he would 	be
temporarily assigned 	to 	counseling 	only 	for 	the 	fall 	quarter 	of
1983, 	and 	that 	in the winter 	quarter 	he would 	be assigned 	as 	a
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full-time 	instructor. 	In January 1984. 	Florio was 	assigned 	to
be 	acting 	coordinator 	of 	the 	campus 	learning 	resource 	center.
As 	of 	the date 	of 	the 	hearing on this 	case. 	Florio 	had 	not 	been
advised 	about 	his 	assignment 	for 	1984 	except 	that 	it would
involve 	instruction.
It was 	agreed 	by all 	the witnesses 	at 	the 	hearing 	that,
prior 	to Florio's 	transfer, 	no 	other 	counselor 	had 	ever 	been
involuntarily 	reassigned 	to 	an 	instructional 	position. 	The
Association 	and 	the 	District 	had 	negotiated 	a 	transfer
provision 	in 	their 	collective 	bargaining 	agreement 	effective
July l, 	1978 	through June 	30, 	1981. 	With the elimination of
four words, 	the 	transfer 	provision was 	carried 	over 	in 	the
successor 	agreement 	effective July 	1. 	1982 	through June 	30,
1985. 	The 	transfer 	provision reads 	as 	follows with the words
removed 	from 	the 	current 	version underlined:
ARTICLE 	IX
TRANSFERS
9.1 	Voluntary Transfer 	- 	A notice 	of 	all
open positions within 	the unit 	shall 	be
circulated 	and 	posted 	on 	appropriate
bulletin boards. 	Unit members 	shall 	have
the 	right 	to 	request 	transfer 	to 	any open
positions 	for 	which 	they 	are qualified.
9.2 	Administrative 	Transfer 	- Where 	due 	to
changing 	student 	preferences 	or
administrative 	requirements 	it 	becomes
necessary to 	transfer unit members, 	such
transfer 	shall 	be 	made 	only after
consultation 	between 	the 	member 	and 	the
supervisor.
9.3 	Transfer 	shall 	be 	considered 	on 	but 	not
limited 	to 	the 	following 	non-ordered
criteria:
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9.3.1 	The 	qualification 	and 	competency
of 	the unit 	members 	to 	perform the 	required
services.
9.3.2 	The 	length 	of 	service 	in 	the
District.
9.3.3 	Affirmative 	action 	goals 	of 	the
District.
DISCUSSION
When 	an 	employer 	unilaterally 	changes 	an 	established 	policy
regarding 	a 	negotiable 	subject 	matter 	without 	affording 	the
exclusive 	representative 	a 	reasonable 	opportunity 	to 	bargain
over 	the 	change, 	the 	employer 	is 	held 	to have violated 	its 	duty
to 	negotiate 	in good 	faith. 	Pajaro Valley Unified 	School
District 	(1978) 	PERB Decision No. 	51. 	(See also NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177].) 	Established policy may be
embodied 	in 	the 	terms 	of 	a 	collective 	bargaining 	agreement
(Grant 	Joint Union High School 	District 	(1982) 	PERB Decision
No. 	196) 	or. 	where a contract is silent or ambiguous, 	it may be
determined 	from 	past 	practice 	or 	bargaining 	history 	(Rio 	Hondo
Community College District 	(1982) 	PERB Decision No. 	279). 	An
alleged 	violation 	of 	a 	collective 	bargaining 	agreement 	does 	not
violate 	the Act unless 	it 	is 	also a unilateral 	change 	having a
generalized 	effect 	or 	a 	continuing 	impact.3 	Grant 	Joint
Union High School District, 	supra.
3Section 3541.5(b) 	provides 	that:
(b) 	The 	board 	shall 	not 	have 	authority to
enforce 	agreements 	between the 	parties, 	and
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shall 	not 	issue 	a 	complaint 	on any charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
In the 	instant 	case, 	Charging Party Florio 	excepts 	to 	the
ALJ's 	finding that, 	in light 	of 	the 	transfer 	section of 	the
parties' 	collective 	bargaining agreement, 	the District did not
make 	a unilateral 	change 	in 	its 	transfer 	policy when 	it
transferred Florio. 	Much 	of 	the 	testimony at 	hearing dealt
with the 	transfer 	section and, 	in particular, 	with the meaning
of 	the 	phrase 	"administrative 	requirements" 	therein.
Article 	IX 	contains 	provisions 	for 	"voluntary" 	and
"administrative" 	transfers, 	and 	the 	parties 	agree 	that 	the
administrative 	transfer 	section 	refers 	to 	involuntary
transfers. 	Administrative 	transfers 	are 	permitted 	for 	either
of 	two reasons: 	"changing student preferences" 	or
"administrative 	requirements." 	The 	District 	relied 	on 	the
latter 	provision 	in 	transferring Florio.
The ALJ 	found 	that, 	although the 	parties 	each offered
witnesses 	who 	testified as 	to 	the meaning 	of 	the 	term
"administrative 	requirements," 	their 	testimony 	consisted
entirely of 	opinion. 	He also 	found 	that, 	since 	the 	parties
apparently 	never 	discussed 	the 	term across 	the 	bargaining
table, 	there was 	no 	negotiating history to aid 	in the
interpretation of 	the 	phrase. 	"One 	therefore 	can only ascribe
the 	ordinary, 	dictionary meaning to 	the words," 	the ALJ wrote.
88

He 	then 	drew on Webster's 	Third 	New 	International 	Dictionary.
Unabridged 	to 	find 	that 	an 	"administrative 	requirement" 	is 	an
action 	"wanted 	or 	needed" 	in the 	"management 	(or) 	direction" 	of
the District.
The 	ALJ 	found 	that 	this 	interpretation 	of 	"administrative
requirements" 	gave 	the District 	great 	leeway 	in 	transferring
employees 	to different positions, 	but 	that 	it 	still 	had 	to
comply with 	the 	contractual 	criteria 	in 	sections 	9.3.1, 	9.3.2
and 	9.3.3, 	requiring 	consideration 	of 	the 	transferee's
qualifications, 	competency and 	length of 	service with 	the
District, 	and 	the affirmative action goals 	of 	the District.
The ALJ 	found 	that 	the 	competency 	factor 	was 	not 	limited 	to
competency for 	the 	position to 	be 	transferred 	to, 	but 	also
encompassed 	competency 	in 	the 	position 	already 	held.
Vice-president 	Lucas 	testified 	at 	length 	on 	the 	performance
problems 	which he 	said 	prompted 	the 	decision 	to 	transfer
Florio. 	The ALJ 	found 	it 	irrelevant whether 	or 	not 	that
evaluation was 	justified 	so 	long 	as 	the District 	had 	considered
Florio's 	competency 	and 	other 	criteria 	and 	transferred 	Florio
because 	of 	them. 	He 	found 	that 	the District 	had 	considered
those 	factors 	and 	thus 	had made 	a 	transfer 	because 	of
"administrative 	requirements" 	within 	the 	dictionary meaning 	of
the 	term: 	an action 	"wanted 	or 	needed" 	in 	the 	"management 	(or)
direction" 	of 	the District. 	He 	found 	that 	the 	transfer was
therefore 	permissible 	under 	the 	collective 	bargaining 	agreement
and was 	not 	an unlawful 	unilateral 	change.
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Charging Party excepts 	to 	the ALJ's 	interpretation 	of 	the
phrase 	"administrative 	requirements." 	Although 	he 	does 	not
specifically 	except 	to 	the 	finding 	that 	there was 	no 	bargaining
history 	from which 	to 	determine 	what 	the 	parties 	believed 	the
term to mean. 	Florio asserts:
Even 	if 	there 	is 	no 	bargaining history
concerning 	the 	meaning 	of 	a 	particular 	term
in an education employment contract, 	it 	is
logical 	to 	apply 	the 	definition that would
be 	given 	by 	persons 	and 	entities 	who must
operate under 	such a 	contract, 	rather 	than
some 	abstract 	or 	lay person's 	definition.
In the 	area 	of 	contract 	interpretation. 	Civil 	Code 	section
1644 provides:
The words 	of 	a contract 	are 	to 	be understood
in their 	ordinary and 	popular 	sense, 	rather
than according 	to 	their 	strict 	legal
meaning; 	unless used 	by the 	parties 	in a
technical 	sense, 	or unless 	a 	special meaning
is 	given to 	them by usage, 	in which case 	the
latter 	must 	be 	followed.
While 	Charging Party 	seems 	to 	be 	alleging 	that 	the 	phrase
"administrative 	requirements" 	carries 	some 	special 	meaning 	in
usage among school 	districts and 	teachers' 	associations, 	he
presented 	no 	evidence 	indicating 	any 	such usage. 	Nor 	was 	there
any proof 	of 	what 	the 	parties 	intended 	it 	to mean as 	evidenced
by 	bargaining 	history.
Out 	of 	a 	total 	of 	eight witnesses, 	only two 	purported 	to
testify as 	to 	the meaning of 	the 	phrase 	as 	the 	parties 	at 	the
bargaining 	table understood 	it. 	The ALJ 	found 	that 	an
Association witness 	on 	that 	issue 	testified 	only as 	to 	his
opinion of 	its 	meaning and 	not 	as 	to 	the 	bargaining 	history.
10

The ALJ 	credited 	a 	District witness 	who 	testified 	that 	the
phrase 	"administrative 	requirements" 	had 	not 	been discussed 	at
all 	in either 	the 	original 	negotiations 	of Article 	IX or 	during
the negotiations 	for 	the 	successor 	agreement. 	Thus, 	the
problem of 	what 	the 	parties 	meant 	by 	the 	phrase 	remains.
Charging Party also 	contends 	that, 	under 	Civil 	Code 	section
1654,4 the 	contract 	language 	on 	administrative 	transfers
should 	be 	construed 	against 	the 	District 	since 	the 	District
drafted 	the 	original 	version of Article 	IX. 	However, 	the
uncertainty can 	be 	resolved 	under 	the 	rule 	of 	section 	1644
because, 	as 	the ALJ 	correctly found, 	there was 	no 	bargaining
history 	indicating 	that 	the 	parties 	intended 	the words 	to 	have
any 	special 	meaning 	and 	no 	evidence 	was 	presented 	on 	any
special 	usage 	giving 	the words 	a 	meaning 	other 	than 	their
ordinary one. 	In any event, 	the 	reported 	cases 	pertaining 	to
section 	1654 	indicate 	that when 	the 	contract 	language 	is
arrived 	at 	through 	the 	process 	of 	negotiations, 	section 	1654
does 	not 	apply and 	the 	contract 	provisions 	in question 	should
not 	then 	be 	construed 	against 	either 	party. 	Goldman v.
Ecco-Phoenix Elec. 	Corp. 	(1964) 	62 C.2d 40 [4] Cal.Rptr. 	73].
(See, 	also, 	Indeco. 	Inc. 	v. Evans 	(1962) 	201 Cal.App.2d 369
4
4civil	4civil 	Code 	section 1654 	provides:
In 	cases 	of 	uncertainty not 	removed 	by 	the
preceding rules, 	the 	language of 	a 	contract
should 	be 	interpreted 	most 	strongly 	against
the 	party who 	caused 	the uncertainty 	to 	exist,
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[20 Cal.Rptr. 	90] 	and Dunne & Gaston v. 	Keltner 	(1975) 	50
Cal.App.3d 	560 	[123 	Cal.Rptr. 	430].)
Charging Party also 	excepts 	to 	the ALJ's 	interpretation of
the 	phrase 	"administrative 	requirements," 	contending 	that
". 	. 	. n o education employees' 	union would ever 	allow such
language 	to 	stand 	in a 	contract 	if 	it 	could 	be 	so
interpreted." 	However, 	no 	authority was 	offered 	to 	support
such a 	basis 	for 	overturning 	the ALJ's 	interpretation.
In Marysville 	Joint Unified 	School District 	(1983) 	PERB
Decision No. 	314, 	the teachers' 	association charged that the
district 	had 	made 	a 	unilateral 	change when 	it 	required 	teachers
to 	supervise 	students 	at 	noon break. 	Although 	the 	teachers
were 	given a 	30-minute, 	duty-free 	lunch break as 	the 	parties'
contract 	required, 	past 	practice 	had 	been 	to 	give many of 	the
teachers 	a 	55-minute 	lunch break.
In 	reversing 	the 	hearing 	officer's 	finding 	that 	there 	had
been a unilateral 	change, 	the Board 	held:
. 	. 	. 	The hearing officer's finding that the
plain meaning of 	the 	contract was 	superseded
by the 	parties' 	past 	practice 	is 	based 	on an
inference 	unsupported 	by 	the 	record 	. . . .
Absent 	any 	evidence 	of 	bargaining 	history,
we 	cannot 	infer 	that 	the 	parties' 	intended
to 	attach a meaning 	to 	the 	hours 	provision
of 	their 	agreement 	contrary 	to 	its 	plain
meaning.
Similarly, 	in the 	instant 	case 	there was 	no 	bargaining
history which 	showed 	that 	the 	parties 	agreed 	to 	any meaning 	of
the 	term 	"administrative 	requirements" 	other 	than 	its 	ordinary
meaning. 	Nor 	was 	the District 	precluded 	from exercising 	its
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contractual 	rights merely 	because 	it 	had 	not 	done 	so 	in 	the
past. 	Marysville Joint Unified 	School District, 	supra.
Charging Party had 	the 	burden of 	proof 	of 	showing 	that 	the
phrase 	"administrative 	requirements" 	restricted 	District
actions 	on transfers, 	and 	that 	the District had 	thus 	acted
unlawfully 	in 	transferring 	him 	to 	an 	instructional 	position.
However, 	based 	on the 	evidence 	presented. 	Charging Party has
not 	satisfied 	that 	burden. 	Absent 	any proof 	to 	the 	contrary,
the ALJ 	was 	correct 	in applying 	the 	dictionary meaning 	to 	the
term used 	in the parties' 	agreement.
ORDER
For 	the 	above 	reasons, 	we 	find 	that 	the Butte 	Community
College District 	did 	not 	implement 	a 	unilateral 	change 	in 	its
transfer 	procedure 	in violation 	of 	the 	EERA. 	We 	therefore
ORDER 	that 	the 	charge 	and 	complaint 	numbered 	S-CE-7O5 	be
DISMISSED. 	Mr. 	Florio's 	request 	for 	oral 	argument 	is 	hereby
DENIED.
Members Morgenstern and Porter 	joined 	in 	this Decision.
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