Fountain Valley Elementary School District (PERB 0625E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FOUNTAIN 	VALLEY 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
FOUNTAIN VALLEY ELEMENTARY SCHOOL
DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-2040
PERB 	Decision 	No. 	625
June 	23, 	1987
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Appearances; 	A. 	Eugene Huguenin, 	Jr., 	Attorney for Fountain
Valley Education Association, 	CTA/NEA; 	Parker and Covert 	by
Margaret A. 	Chidester and Spencer E. 	Covert, 	Jr. 	for Fountain
Valley 	Elementary 	School 	District.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
PORTER, 	Member: 	This 	case 	is before the 	Public Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed by 	the
Fountain 	Valley 	Elementary 	School 	District 	(District 	or
Respondent) 	to 	the 	attached proposed 	decision 	of 	a 	PERB
administrative 	law 	judge 	(ALJ). 	The ALJ 	found 	that 	the
District 	violated 	section 	3543.5(c) 	and, 	concurrently,
3543.5(a) 	and 	(b) 	of 	the 	Educational 	Employment Relations
Act 	(EERA 	or A c t ) 1 by changing 	the 	number of 	instructional
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references

minutes 	required 	to be 	taught 	at 	the 	first 	and 	second 	grade
levels. 	We 	have 	reviewed 	the 	record 	and 	the 	proposed 	decision,
the 	exceptions 	filed 	by 	the 	District, 	along 	with 	the 	various
filings 	of 	the parties, 	and hereby adopt 	the proposed decision
of 	the ALJ, 	consistent with 	the 	discussion herein.
FACTS
Having 	reviewed 	the 	exceptions 	of 	the 	District 	and 	the
entire 	record 	in 	this 	case, 	we determine 	that 	the 	findings 	of
fact 	in 	the 	proposed 	decision 	are 	free 	from prejudicial 	error
and 	we 	therefore 	adopt 	them 	as 	the 	findings 	of 	the 	Board 	itself.
The 	Charging 	Party and 	the 	Respondent 	were 	parties 	to 	a
collective 	bargaining 	agreement 	that 	was 	effective 	from 	July 	1,
1982 	through June 	30, 	1985. 	The agreement provided 	for
reopening 	on 	the 	issues 	of 	salary and calendar, 	but 	any other
topic 	could be 	reopened 	only by mutual 	consent 	of 	the parties.
Article 	XVIII 	of 	the 	agreement, 	entitled 	"Completion 	of Meet 	and
herein 	are 	to the Government Code. 	Section 	3543.5 provides, 	in
pertinent part, 	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.
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Negotiation," 	specified 	in 	relevant part:
Except 	where 	specifically 	stated, 	during 	the
term of 	this Agreement, 	the Association and
the 	District 	expressly 	waive 	and 	relinquish
the 	right 	to 	meet 	and 	negotiate 	. . . .
The 	agreement 	also 	specified 	that 	the 	bargaining 	unit
members 	"shall 	work 	the 	following 	number 	of 	days: 	175
instructional 	days." 	It 	further 	stated 	that:
Bargaining 	unit 	members 	shall 	not be
required 	to provide 	instruction 	for 	more
than 	the 	following 	number 	of minutes 	per
full 	five-day week 	(exclusive 	of 	lunch,
breaks, 	etc.):
Levels 	K 	1200 	minutes
Levels 	1-2 	1250 	minutes
Levels 	3-8 	1550 	minutes
Effective 	July 28, 	1983, 	the Legislature passed 	the
Hughes-Hart 	Education 	Reform 	Act 	of 	1983, 	commonly referred
to as Senate Bill 	813, 	or SB 813. 	This act added sections
46200-46204 	to 	the 	Education 	Code, 	and 	offered 	districts
additional 	revenues 	as 	an 	incentive 	to 	increase 	the 	number 	of
instructional 	minutes 	to 	a 	specified 	minimum 	number 	of minutes
per 	year 	at 	each 	grade 	level 	and 	to 	increase 	the 	length 	of 	the
instructional 	year 	to 	180 days. 	Districts 	could phase 	in 	the
increases 	in 	instructional 	minutes 	over 	three years, 	so long
as, 	in 	each of the 	three years, 	they 	increased 	the minutes 	at
each 	grade 	level 	by at 	least 	one-third 	the 	difference between
the 	minutes 	they 	offered 	in 	1982-83 	and 	the 	specified 	total
minutes 	in 	the 	statute. 	Acceptance of 	these 	incentive
provisions 	of 	SB 813 	was 	not 	mandatory.
w
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To 	qualify 	for 	the 	incentive 	money 	for 	longer 	day 	and
longer year 	in 	1984-85, 	the 	District 	needed 	to 	increase 	the
instructional 	year 	to 	180 	days 	for 	all 	grades 	and 	to 	increase
the 	instructional 	minutes 	required 	at 	first 	and 	second 	grades
by 	ten minutes 	per 	day 	in 	each of 	the 	three years. 	As 	a 	result
of 	increasing 	the 	length 	of 	the 	instructional 	year 	to 	180 days,
the 	District 	achieved 	the 	SB 	813 	goals 	for 	number of 	minutes
in 	all 	grade 	levels 	except grades one and two. 	Thus, 	once 	the
District 	lengthened 	the 	instructional 	year, 	it 	qualified 	for
the 	incentive 	money 	for 	increased 	minutes 	in 	every 	grade 	except
grades 	one 	and 	two 	without 	the 	necessity of 	increasing 	the
daily or 	weekly 	instructional 	minutes 	in 	other grades.
In 	February 1984, 	the Association 	submitted 	its 	salary
proposal 	pursuant 	to 	the 	reopener 	language 	of 	the 	collective
bargaining 	agreement. 	Commencing 	in March 	and 	throughout 	the
spring, 	the 	District 	discussed 	with 	the Association 	its 	desire
to 	renegotiate 	the 	length 	of 	the 	work 	year 	and 	instructional
minutes, 	in 	order to reach the 	SB 813 	levels. 	The Association
made 	clear 	that 	it 	was 	unwilling 	to agree 	to 	renegotiate 	those
provisions, 	at 	least until 	the 	salary 	issue was 	concluded.
Ultimately, 	the parties 	went 	to 	impasse 	on 	the 	issue of
salary. 	In August 	1984, 	the District 	unilaterally adopted
an 	increased 	instructional 	year 	that 	contained 	180 	student
attendance 	days 	and 	increased 	the 	number 	of 	instructional
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minutes 	at 	the 	first 	and 	second 	grade 	levels 	by 	30 	minutes
per day, 	or 	from 	1250 minutes 	per week 	to 	1400 minutes. 	The
District 	thus 	reached 	the 	SB 	813 	number 	of 	instructional
minutes 	in all 	grade 	levels. 	The Association 	filed 	an unfair
practice 	charge 	on 	the 	unilateral 	changes.
DISCUSSION
The 	ALJ's 	Proposed 	Decision
At 	the hearing below 	and 	on 	appeal, 	the 	District 	argues
that 	it 	provided 	the Association 	notice 	and 	an 	opportunity
to 	negotiate 	the 	changes 	in 	instructional 	year 	and 	number 	of
minutes. 	The Association's 	refusal 	to negotiate, 	asserts 	the
District, 	constituted 	a 	waiver, 	thereby excusing 	the 	District's
unilateral 	action. 	The ALJ 	concluded 	that 	the 	contract 	clearly
established 	a 	set 	number 	of 	instructional 	minutes 	at 	each 	grade
level 	and 	established 	the 	length 	of 	instructional 	year 	for 	the
duration 	of 	the 	agreement, 	unless 	both parties 	agreed 	to 	reopen
a 	section 	for 	renegotiation. 	Thus, 	she 	concluded that 	the
Association 	had 	a 	contractual 	right 	to 	refuse 	to 	reopen 	the
minutes 	and work year provisions. 	Furthermore, 	she 	rejected
the 	District's 	argument 	that 	the 	language 	in 	the management
rights 	clause 	authorized 	the 	District 	to 	take 	its 	unilateral
action, 	since 	she 	found 	that 	that provision 	specified 	that 	the
exercise 	of 	management 	rights 	would be 	"limited 	only by 	the
specific and express terms of this agreement, 	. 	. 	. 	." 	The
specific 	provisions 	of 	the 	contract 	concerning 	work 	year 	and
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instructional 	minutes 	controlled and, 	thus, 	the management
rights 	clause 	could 	not 	authorize 	the 	employer 	to 	take
unilateral 	action 	on 	these 	issues. 	The ALJ 	further 	rejected
the 	District's 	argument 	that, 	since 	the 	adoption of SB 813 was
not 	within 	the 	contemplation 	of 	the parties 	at 	the 	time 	the
contract 	was 	entered 	into, 	the 	District had 	not waived 	its
right 	to 	renegotiate 	the 	work 	year/instructional 	minute
provisions. 	The ALJ 	concluded 	that 	the 	District 	violated
section 	3543.5(c) 	when 	it 	unilaterally changed 	the 	required
number 	of minutes 	of 	the 	school 	day, 	thereby 	lengthening 	the
employees' 	hours of work.
The ALJ did 	find, 	however, 	that 	the 	District did 	not
violate 	the 	Act 	in 	increasing 	the 	instructional 	year, 	since 	the
District 	took 	the position 	that 	it 	did 	not 	intend 	to 	require
teachers 	in 	the bargaining unit 	to work 	the 	additional 	days
if 	the parties 	did 	not 	reach 	agreement prior 	the 	end of 	the
teacher's 	contractual 	work year. 	Therefore, 	there was 	no
demonstrated 	repudiation 	of 	the 	agreement 	with 	respect 	to 	an
increase 	in the teacher work year.2
The ALJ 	ordered a 	return 	to the 	status 	quo 	for 	the 	first
and 	second 	grades, 	effective 	the 	semester 	following 	the
semester 	in 	which 	the 	decision becomes 	final. 	She 	also 	ordered
a 	makewhole 	remedy 	for 	the 	first 	and 	second grade 	teachers, 	of
2The 	Association 	did 	not 	except 	to 	this 	conclusion.
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either 	monetary 	compensation 	or 	compensating 	time 	off 	in 	the
amount 	of 	at 	least 	30 minutes 	per day, 	plus 	whatever additional
time 	or 	money the 	parties 	agreed 	upon 	to 	compensate 	for 	the
additional 	preparation 	time 	resulting 	from 	the 	increased
instructional 	time. 	In the absence of 	agreement, 	the ALJ
concluded 	that 	the 	additional 	preparation 	time 	could be
determined 	in a 	compliance proceeding. 	In addition, 	she
ordered 	interest 	in 	the 	amount 	of 	ten 	percent per 	annum, 	the
posting 	of 	an 	order 	and 	for 	the 	District 	to 	cease 	and desist
from 	taking 	unilateral 	action. 	Finally, 	she 	concluded 	that 	the
teachers 	at 	Oka 	School, 	who had 	voluntarily worked 	additional
time 	in 	the 	1983-84 	school 	year, 	should likewise 	receive 	the
additional 	compensation 	or 	compensating 	time 	off.
In 	its 	exceptions, 	the 	District 	asserts 	that 	the ALJ erred
in 	refusing 	to 	allow 	testimony other 	than 	by way of 	an 	offer 	of
proof 	concerning 	the 	District's 	attempts 	to bargain 	the 	longer
day/longer 	year. 	While 	such 	an 	approach 	by 	the 	ALJ 	runs 	the
risk 	of 	Board 	disagreement 	with 	the 	ALJ's 	determination 	of 	lack
of 	relevancy, 	in 	this 	case we 	agree 	that 	such 	testimony was
irrelevant, 	since 	the 	Association had 	no duty 	to negotiate,
given 	the 	language 	of 	the 	contract.
Additionally, 	the 	District 	asserts 	that 	its 	unilateral
action 	should be 	excused 	on 	the basis 	that 	the Association 	did
not 	engage 	in 	salary 	negotiations 	in 	good 	faith. 	We 	find 	that
whether 	the Association 	engaged 	in 	salary 	negotiations 	in 	good
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faith 	is 	not at 	issue 	in 	this 	case, 	since 	even bad 	faith 	salary
negotiations 	on 	the part 	of 	the Association 	would 	not have
created 	a 	duty on 	its 	part 	to 	negotiate 	the 	District's 	longer
day/longer year 	proposal. 	Absent 	that 	duty, 	no waiver by 	the
Association 	can be 	found 	and 	the 	District's 	repudiation 	of 	the
lawful 	negotiated 	agreement 	is 	not 	excused.
The 	majority of 	the 	remainder 	of 	the 	District's 	exceptions
are 	reiterations 	of 	its 	arguments 	raised below, 	and we 	conclude
that 	they 	were 	correctly 	analyzed 	and 	resolved 	by 	the 	ALJ.
While 	the 	District 	specifically does 	not 	assert 	a business
necessity defense, 	it 	argues 	in 	essence 	that 	the policy behind
the 	enactment 	of 	SB 	813 	should 	justify 	a 	finding 	that 	the
Association was 	required 	to negotiate 	the 	increases, 	in 	order
for 	the 	District 	to 	implement 	SB 813's provisions 	to 	increase
the 	instructional 	minutes 	and 	school 	year 	and 	to 	receive 	the
additional 	revenues. 	We 	do not 	disagree 	with 	the 	District's
motives 	in attempting 	to negotiate 	the 	SB 	813 changes; 	nor do
we dispute 	the 	laudable 	goals 	of SB 813. 	Nonetheless, 	our
responsibility 	in 	administering EERA 	is 	to make 	it possible
for 	the 	parties 	to 	negotiate 	collective bargaining 	agreements
in 	good 	faith and, 	once 	they have done 	so, 	to protect their
right 	to 	rely on 	their agreements. 	When parties 	agree on 	a
three-year 	contract 	with 	no 	reopeners 	except 	for 	salary, 	they
run 	the 	risk 	that 	the 	Legislature 	may enact 	nonmandatory 	laws
that 	alter 	the 	environment 	in 	which 	the 	agreement 	was 	reached.
8

Such 	was 	the 	case here. 	While 	the Association's 	position
may not have met 	the 	District's 	educational 	concerns, 	the
Association was, 	nevertheless, 	entitled 	to 	rely on the
negotiated 	agreement.
Therefore, 	for 	the 	reasons 	expressed 	in 	the ALJ's proposed
decision 	and 	the 	reasons 	set 	forth 	above, 	we 	conclude 	that 	the
District 	violated 	EERA 	section 	3543.5(c) 	by 	unilaterally
changing 	the 	number 	of 	instructional 	minutes 	required 	to be
taught 	by 	the 	first 	and 	second 	grade 	teachers 	of 	the 	District.
On the 	issue of the 	remedy, 	however, 	we 	reach 	the 	following
conclusions. 	First, 	we 	take official 	notice of the 	terms 	of
the 	successor 	collective 	bargaining 	agreement 	between 	the
parties, 	effective April 	23, 	1986 through April 	22, 	1989.3
This 	agreement 	reflects 	that 	the 	teachers 	in 	grades 	one 	and 	two
are 	required 	to provide 	instruction 	for 	1400 minutes 	per week.
In 	light of 	this 	negotiated change 	in 	instructional 	minutes, 	it
is 	no 	longer 	appropriate 	to order 	a 	return 	to 	the 	status 	quo
ante. 	Further, 	we 	note 	that 	Education 	Code 	section 	46201(c)
imposes 	a 	financial 	penalty on 	districts 	that 	lower 	their
instructional 	minutes below the 	SB 813 	amounts. 	Therefore, 	we
do 	not 	order 	a 	return 	to 	the 	status 	quo ante 	with 	respect 	to
3PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 	8, 	section 	31001 	et seq. 	Regulation section 	32120
requires 	districts 	to 	file 	with 	the 	appropriate 	regional 	office
a 	copy of 	their 	current 	collective 	bargaining 	agreement 	and 	any
amendments 	thereto.
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the 	instructional 	minutes.
Second, 	we believe 	it 	appropriate 	to order a 	remedy that
effectuates 	the 	purposes 	of 	the 	Act 	and 	is 	sufficiently 	clear
to 	enable 	the 	respondent 	to 	comply without 	the 	need 	for 	further
litigation 	and 	delay 	through 	compliance 	proceedings.
Therefore, 	we 	order 	that 	the 	District 	compensate 	first
and 	second 	grade 	teachers 	who 	were 	affected 	by 	the 	change
(including 	those 	teachers 	at Oka 	School) 	by 	the 	amount 	of
time 	off 	or 	money 	that 	will 	compensate 	them 	for 	an 	additional
45 minutes 	of work 	performed per day. 	We 	arrive 	at 	this 	figure
based 	on 	the 	undisputed 	additional 	3 0 minutes 	per 	day the
teachers 	were 	required 	to 	teach, 	plus 	an 	extra 	15 minutes
for 	the 	added 	preparation 	time 	necessitated 	by 	the 	extra
instructional 	time. 	The 	latter amount 	is based 	solely on 	the
evidence 	in 	this 	case, 	and the ALJ's 	conclusion 	that 	the 	ratio
of 	instructional 	time 	to noninstructional 	time 	is 	two 	to one.
It 	is 	not 	intended as 	a 	statement as 	to the 	appropriate amount
of preparation 	time 	in 	relation 	to 	instructional 	time.
The parties 	shall 	be 	directed 	to meet 	in an 	attempt 	to
agree 	upon 	the manner and method of 	compensation, 	whether 	it be
time 	off, 	back pay or 	some 	combination 	of both. 	The manner 	and
method 	of 	compensation 	shall 	be 	fair 	and 	reasonable, 	taking
into 	account 	teacher 	preference 	as 	well 	as 	the 	avoidance 	of 	an
undue 	burden 	upon 	District 	finances 	and 	operations. 	Interest
shall 	be 	paid 	on 	all 	monetary 	compensation 	at 	the 	rate 	of 	ten
10

percent 	per 	annum. 	Should 	the 	parties 	not 	reach 	agreement
within 	60 calendar days 	of 	the 	date 	of 	this 	Decision, 	the
District 	shall 	immediately 	notify 	the 	Los Angeles 	Regional
Director 	so 	that 	compliance 	proceedings 	may be 	initiated.
Further, 	employees 	who are 	entitled 	to 	compensation but 	who
are 	no 	longer 	employed by 	the 	District 	shall 	receive 	monetary
compensation 	plus 	interest 	at 	the 	rate 	of 	ten 	percent 	per 	annum.
ORDER
Upon 	the 	foregoing 	conclusions 	of 	law, 	including 	those
attached hereto 	in 	the 	Proposed 	Decision, 	and on 	the 	entire
record of 	this 	case, 	it 	is 	found that 	the 	Fountain Valley
Elementary 	School 	District 	has 	violated 	section 	3543.5(c) 	and,
derivatively, 	section 	3543.5(a) 	and 	(b) 	of the Educational
Employment 	Relations 	Act. 	Pursuant 	to 	section 	3541.5(c) 	of 	the
Government 	Code, 	it hereby is ORDERED that the District, 	its
governing 	board 	and 	its 	representatives 	shall:
1. 	CEASE AND DESIST 	FROM:
A. 	Taking 	unilateral 	action 	through 	repudiation 	of 	the
terms 	of 	the 	lawful 	collective bargaining 	agreement.
B. 	Interfering 	with 	the 	right 	of 	the 	employees 	to be
represented 	in 	their 	employment 	relations 	with 	the 	employee
organization 	of 	their 	choice.
C. 	Interfering 	with 	the 	right 	of 	the 	exclusive
representative 	to 	represent 	the 	members 	of 	the bargaining
unit 	in 	their 	employment 	relations 	with 	their 	employer.
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2. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
A. 	For 	the period 	from 	the 	effective 	date 	of 	the
District's 	unlawful 	unilateral 	action 	to 	the 	effective 	date
of 	the parties' 	subsequent 	collective 	bargaining 	agreement,
April 	23, 	1986, 	grant 	to each 	first and 	second grade 	teacher
required 	to 	teach more 	than 	the 	1250 	minutes 	per 	week 	provided
in 	the 	agreement 	then 	in 	force 	the 	amount 	of 	time 	off 	or 	salary
which 	equates 	to 	45 	minutes 	per day of 	compensation. 	The
manner 	and 	method 	of 	compensation 	shall 	be 	determined 	by
mutual 	agreement 	of 	the parties. 	Those 	teachers 	eligible 	for
compensation but 	no 	longer 	in 	the 	employ 	of 	the 	District 	shall
receive 	monetary 	compensation. 	If 	the parties 	do not 	reach
agreement 	within 	60 	calendar 	days 	from 	the 	date 	of 	this
Decision, 	the 	District 	shall 	immediately notify the 	Los Angeles
Regional 	Director 	of 	the 	Public 	Employment 	Relations 	Board 	so
that 	compliance 	proceedings 	may be 	initiated. 	Any monetary
payment 	shall 	include 	interest 	at 	the 	rate 	of 	ten 	(10) 	percent
per 	annum.
B. 	Within 	thirty-five 	(35) 	days 	following 	the 	date
this 	Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post at
all 	school 	sites 	and 	all 	other work 	locations 	where 	notices 	to
employees 	customarily are placed, 	copies 	of 	the 	Notice 	attached
as 	an Appendix hereto, 	signed 	by an 	authorized 	agent 	of 	the
employer. 	Such 	posting 	shall 	be 	maintained 	for 	a 	period of
12

thirty 	(30) 	consecutive 	workdays. 	Reasonable 	steps 	shall
be 	taken 	to 	insure 	that 	this 	Notice 	is 	not 	reduced 	in 	size,
defaced, 	altered 	or 	covered by any material.
C. 	Upon 	issuance 	of 	this 	Decision, 	written
notification 	of 	the 	actions 	taken 	to 	comply 	with 	this 	Order
shall 	be made 	to 	the 	Los Angeles 	Regional 	Director 	of 	the
Public 	Employment 	Relations 	Board 	in 	accordance 	with his
instructions.
Chairperson 	Hesse 	and Member 	Craib 	joined 	in 	this 	Decision.
13

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice 	Case No. 	LA-CE-2040,
Fountain 	Valley 	Education Association, 	CTA/NEA v. 	Fountain
Valley 	Elementary 	School 	District, 	in 	which 	all 	parties 	had 	the
right 	to participate, 	it has been 	found 	that the Fountain Valley
Elementary School 	District violated 	section 	3543.5(a), 	(b) 	and
(c) 	of 	the 	Educational 	Employment 	Relations 	Act. 	The 	District
violated 	the 	Act 	by 	unilaterally 	increasing 	the 	number 	of
instructional 	minutes 	required 	to be 	taught 	at 	the 	first 	and
second 	grade 	levels, 	contrary 	to 	the 	terms 	of 	the 	collective
bargaining 	agreement 	then 	in 	effect. 	By unilaterally 	changing
the 	number 	of 	instructional 	minutes 	required 	to be 	taught 	at 	the
first 	and 	second 	grade 	levels, 	the 	District 	derivatively denied
the 	employees 	their 	right 	to be 	represented 	in 	their 	employment
relations 	by the 	employee 	organization 	of 	their 	own 	choosing,
and 	denied 	to 	the 	exclusive 	representative 	the 	right 	to
represent 	bargaining 	unit 	employees 	in 	their 	employment
relations 	with 	their 	employer.
As 	a 	result of 	this 	conduct, 	we have been ordered 	to post
this 	Notice 	and will 	abide by the 	following. 	We will:
1. 	CEASE AND DESIST FROM:
A. 	Taking 	unilateral 	action 	through 	repudiation 	of
the 	terms 	of 	the 	lawful 	collective bargaining agreement.
B. 	Interfering 	with 	the 	right 	of 	the 	employees 	to be
represented 	in 	their 	employment 	relations 	with 	the 	employee
organization 	of 	their 	choice.
C. 	Interfering 	with 	the 	right 	of 	the 	exclusive
representative 	to 	represent 	the 	members 	of 	the 	bargaining
unit 	in 	their 	employment 	relations 	with 	their employer.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
A. 	Grant 	to 	each 	teacher 	required 	to 	teach more 	than
1250 	minutes 	the 	amount 	of 	time 	off 	or 	salary which 	equates 	to
45 	minutes 	of 	compensation. 	Any monetary payment 	shall 	include
interest at 	the 	rate of 	ten 	(10) 	percent 	per annum.
Dated: 	FOUNTAIN VALLEY ELEMENTARY 	SCHOOL 	DISTRICT
By: Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST 	REMAIN 	POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM 	THE 	DATE OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FOUNTAIN VALLEY EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
FOUNTAIN 	VALLEY 	ELEMENTARY 	SCHOOL
DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-2040
PROPOSED 	DECISION
(3/27/85)
)
)
)
)
)
)
)
)
Appearances; 	A. 	Eugene Huguenin 	(California Teachers
Association) 	Attorney 	for 	Fountain Valley Education
Association, 	CTA/NEA; 	and Margaret 	Chidester 	(Parker 	& Covert)
Attorney 	for 	Fountain Valley Elementary 	School District.
Before Barbara E. 	Miller, 	Administrative Law Judge.
I. 	PROCEDURAL HISTORY
The Fountain Valley Education Association, 	CTA/NEA
(hereinafter Association, 	FVEA, 	or Charging Party) 	and the
Fountain Valley 	Elementary 	School 	District 	(hereinafter
District 	or 	Respondent) 	are parties 	to a collective bargaining
agreement 	which establishes 	that 	the 	school 	year 	will 	consist
of 	175 	instructional 	days 	and 	further 	establishes 	that 	teachers
for grade 	levels 	one 	and 	two 	are 	required 	to 	teach 	1250 	minutes
per week. 	On August 	20, 	1984, 	the Respondent's governing board
took 	action 	increasing 	the District's 	number 	of 	instructional
days 	for 	the 	1984-85 	school 	year 	to 	180 	days 	and 	increasing 	the
number 	of 	instructional 	minutes 	taught by 	teachers 	at 	grade
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
I
)

levels 	one 	and 	two 	to 	1400 minutes per week. 	In 	response 	to
that action, 	on August 29, 	1984, 	the Fountain Valley Education
Association 	filed 	an Unfair 	Practice 	Charge 	against 	the
District.
An 	investigation was conducted 	and on September 	14, 	1984, 	a
Complaint 	issued 	alleging 	that 	the 	Respondent's 	action of
August 20 constituted a violation of sections 3543.5(a), 	(b),
and 	(c) 	of the Educational Employment Relations Act 	(EERA).1
On October 	5, 	1984, 	the District 	filed 	its Answer 	admitting
that 	the 	student 	instructional 	time 	for 	grades 	one and 	two had
been 	increased 	to 	1400 minutes per week, 	but denying 	all 	other
material allegations 	in the Complaint. 	In its Answer, 	the
Respondent 	affirmatively alleges 	that 	it 	gave FVEA notice 	and
an opportunity 	to 	negotiate prior 	to 	the 	alleged 	changes 	on
1The 	EERA 	is 	codified 	beginning 	at 	Government 	Code
section 	3540, 	etc. 	Unless 	otherwise 	indicated, 	all 	statutory
references 	are 	to 	the Government Code. 	Section 	3543.5 	of 	the
EERA provides, 	in relevant part, 	as follows:
It 	shall be unlawful 	for 	the public 	school
employer 	to:
a) 	Impose 	of 	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.
N
	2

August 	20, 	1984, 	but 	that FVEA had refused 	to bargain 	in good
faith. 	Moreover, 	the Answer alleges that 	the collective
bargaining 	agreement 	did 	not 	constitute 	a waiver 	of 	the
District's 	right 	to 	institute 	unilateral 	changes 	after 	giving
FVEA an 	opportunity 	to 	meet 	and 	negotiate.
An 	informal 	conference was 	conducted on September 	18, 	1984,
and when the parties 	were unable 	to 	resolve 	their dispute, 	a
formal hearing 	was 	scheduled 	and 	conducted 	on November 	6 	and 	7,
1984, 	at 	the Los Angeles Regional Office of 	the Public
Employment 	Relations 	Board 	(hereinafter 	PERB 	or 	Board.)
Post-hearing briefs were 	timely 	filed 	and on February 	19, 	1985,
the 	case 	was 	submitted 	for proposed decision.
II. 	FINDINGS OF FACT
The 	Fountain Valley 	Education Association 	and 	the 	Fountain
Valley Elementary School District are, 	respectively, 	an
employee 	organization 	and 	an 	employer 	as 	those 	terms 	are
defined 	in the 	EERA. 	The FVEA 	is 	the 	exclusive 	representative
of 	the District's 	unit 	of 	certificated 	employees 	and 	on
October 	21, 	1982, 	the parties ratified a collective bargaining
agreement which, 	by 	its terms, 	is 	effective 	from July 1, 	1982
through June 30, 	1985.
Article VI 	of 	that 	collective 	bargaining 	agreement 	is
entitled 	"Hours of Employment" 	and provides, 	in relevant part,
as follows:
A. 	Bargaining 	unit 	members 	shall 	work 	the
following 	number of 	days:
w	3

175 	instructional 	days
.
D. 	Bargaining 	unit 	members 	shall 	not be
required 	to provide 	instruction 	for 	more
than 	the 	following 	number of 	minutes 	per
full 	five-day week 	(exclusive of 	lunch,
breaks, 	etc.):
Levels K 	1200 	minutes
Levels 	1-2 	1250 	minutes
Levels 	3-8 	1550 	minutes
There 	is 	no dispute 	that prior 	to 	the 	action complained 	of
herein, 	bargaining 	unit members 	worked 	175 	instructional 	days
and bargaining 	unit 	members 	teaching 	grade 	levels 	one 	and 	two
were 	required to 	teach 1250 minutes per 	week. 	There 	is 	also no
dispute 	that 	at Oka School 	in 1983-84, 	teachers 	voluntarily
worked 	37 	additional 	instructional minutes per day. 	Finally,
there 	is 	no dispute 	that 	subsequent 	to 	the 	actions 	complained
of herein, 	teachers 	at grade 	levels 	one and two were 	required
to provide 	1400 minutes 	of 	instruction per 	five-day week.
The 	collective 	bargaining 	agreement 	also 	contains 	an
article 	entitled 	"District Rights." 	That 	article provides, 	in
relevant part, 	as follows:
A. 	It 	is 	understood 	and 	agreed 	that 	the
District 	retains 	all of 	its powers and
authority to direct, 	manage, 	and control to
the 	full 	extent of 	the law. 	Included 	in,
but 	not 	limited 	to, 	those 	duties 	and powers
are 	the exclusive 	right to: 	determine 	its
organization; 	direct 	the work of 	its
bargaining 	unit members; 	determine 	the 	times
and hours 	of 	operation; 	determine 	the 	kinds
and 	levels 	of 	services 	to be provided, 	and
the 	methods 	and means 	of 	providing 	them;
A	4

establish its educational policies, 	goals,
and objectives; 	insure 	the rights and
educational opportunities of students; 	. 	. 	.
B. 	The exercise of 	the 	foregoing powers,
rights, 	authority, 	duties and
responsibilities by the District, 	the
adoption of policies, 	rules, 	regulations,
and practices 	in furtherance 	thereof, 	and
the use 	of 	judgment 	and discretion 	in
connection 	therewith 	shall 	be 	limited 	only
by 	the 	specific 	and 	express 	terms 	of 	this
agreement, 	and then only to 	the extent 	such
specific 	and express 	terms 	are 	in
conformance 	with 	law.
The 	contract 	also 	contains Article XVII 	entitled 	"Support 	of
Agreement." 	That 	section provides, 	as 	follows:
The District 	and 	the Association 	agree 	that
it 	is 	to 	their mutual benefit 	to encourage
the 	resolution 	of differences 	through 	the
meet and negotiation process. 	Therefore, 	it
is 	agreed 	that 	the Association 	will 	support
this Agreement 	for 	its 	term and 	will 	not
appear before public 	bodies 	meeting 	in their
official 	capacity 	that 	are 	elected 	or
appointed 	to 	seek 	change 	or 	improvement 	in
any matter 	subject 	to 	the meet and
negotiation process 	except 	by 	mutual
agreement 	of 	the 	District 	and 	the
Association.
Finally, 	Article XVIII 	is 	entitled 	"Completion of Meet 	and
Negotiation" 	and provides:
Except 	where 	specifically 	stated, 	during 	the
term of 	this Agreement, 	the Association and
the 	District 	expressly 	waive 	and 	relinquish
the 	right 	to meet 	and 	negotiate and 	agrees
[sic] 	that 	the District 	shall not be
obligated 	to meet 	and 	negotiate 	with 	respect
to 	any 	subject 	no 	matter 	whether 	referred 	to
or 	covered 	in this Agreement or 	not, 	even
though each 	subject 	or 	matter 	may not 	have
been within 	the 	knowledge 	or 	contemplation
of 	either 	or both the District 	or 	the
,
5

Association 	at 	the 	time 	they met 	and
negotiated on and 	executed 	this 	Agreement,
and 	even 	though 	such 	subjects 	or 	matters
were proposed and 	later 	withdrawn.
Neither party 	presented 	any evidence 	as 	to Article 	XVII 	or
XVIII 	and 	it 	is 	not clear what 	the parties 	intended when they
agreed 	that 	only 	the 	union 	would 	not 	lobby 	for 	changes 	and 	only
the 	District 	would 	not be 	obligated 	to negotiate. 	Whatever 	the
parties 	intended, 	based 	upon the contract 	language, 	it 	is 	found
that 	they 	expressly agreed 	to be bound 	by 	the 	terms 	of 	the
contract 	unless 	there was mutual 	agreement 	to 	modify 	its 	terms.
B. 	SB 813
The Hughes-Hart Educational 	Reform Act of 	1983, 	frequently
referred to as Senate Bill 	or 	SB 	813, 	added 	sections
46200-46204 to 	the Education Code. 	Those 	sections became
effective on July 28, 	1983, 	and provide monetary incentives to
school 	districts 	which establish 	a 	longer 	instructional 	day 	and
year. 	Education Code 	section 	46200 provides 	that 	school
districts 	will 	be given 	an 	extra $35.00 per 	unit 	of 	average
daily attendance 	if 	the 	District 	certifies 	to 	the
Superintendent 	of 	Public 	Instruction 	that 	it 	offered 	180 days
or more of 	instruction for 	the school year 	1984-85.
Education Code 	section 	46201 	is 	somewhat more 	complex 	and
provides as 	follows:
Apportionment 	for 	Schools 	Offering 	Specified
Amount of 	Instructional 	Time; 	Reduction of
Base 	Revenue 	Limit 	for 	Subsequent 	Decrease
in Time
6

(a) 	In each of the 1984-85, 	1985-86, 	and
1986-87 	fiscal years, 	for each school
district 	which certifies 	to 	the
Superintendent 	of 	Public 	Instruction that 	it
offers 	at 	least 	the 	amount 	of 	instructional
time specified 	in this 	subdivision, 	the
Superintendent 	of 	Public 	Instruction 	shall
apportion twenty dollars 	($20.00) 	per unit
of 	average 	daily 	attendance 	in kindergarten
and grades one through eight, 	. 	. 	.
The 	section goes 	on to provide 	that by the 	1986-87 	fiscal 	year,
a district has 	to provide 	50,400 minutes 	of 	instruction 	in
grades 	one 	to 	three, 	inclusive. 	In order 	to receive 	financial
incentives 	in 1984-85, 	if a district provides 	less than 50,400
minutes 	of 	instruction for grades 	one 	through three, 	in 	1984-85
it has 	to offer 	the 	instructional minutes 	offered 	in 	1982-83,
plus 	one-third of 	the 	difference 	between 	the 	number 	of 	minutes
specified 	in the 	section, 	namely 	50,400 and 	the 	number offered
in 1982-83.
In terms 	of 	the 	instant 	unfair practice proceeding 	and 	the
Fountain Valley Elementary School 	District, 	in order 	to qualify
for 	incentive monies 	under Education Code 	section 46201, 	in
1984-85 	the 	District 	needed 	to add ten minutes 	of 	instruction
for 	students 	in grade levels one and two, 	if 	180 days 	of
instruction were provided. 	In 	other categories 	or 	levels 	of
instruction, 	the District 	already met 	the goals 	set 	forth 	in
the 	Education Code.
On August 20, 	1984, 	the District's governing board took
action 	to 	lengthen 	the 	instructional 	day and 	the 	instructional
year 	for 	the Fountain Valley 	School District. 	Although opposed
7

by the Association, 	the District 	took 	action to 	increase 	the
length of 	the 	instructional year 	from 175 	days 	to 	180 days.
The action by the governing board on August 	20, 	1984 was
unanimous 	and was 	characterized as 	the 	adoption of 	a 	student
calendar 	which provided 	for 	180 days 	of 	instruction.
At the 	same meeting on August 	20, 	1984, 	the governing board
took 	action 	to 	require 	that 	teachers 	in grades 	one 	and 	two
provide an 	additional 	30 	minutes per 	day of 	instruction 	for
their 	students, 	20 minutes more 	than required 	to 	receive SB 813
incentive money. 	This 	action was 	opposed by the Association
and by 	one 	board member 	who 	drew 	a distinction between 	the
increase 	in 	the 	student 	instructional 	days per year and 	the
action 	which 	specifically 	required 	additional 	instructional
time 	from 	the 	teachers. 	Board member 	Carol Mohan 	sided with
the Association 	and 	considered 	the 	action 	of 	increasing 	the
number of 	instructional 	minutes 	to be 	a 	repudiation of 	the
collective 	bargaining 	agreement.
C. 	The 	District's 	Defense
The District 	does 	not 	deny 	that 	it 	increased 	the 	student
calendar 	to 180 days of 	instruction. 	Moreover, 	the District
admits 	that 	it 	required 	teachers 	at 	grade 	levels 	one 	and 	two 	to
teach an average of 	an additional 	30 minutes per 	day. 	The
District 	also 	admits 	that 	there was 	no 	agreement 	with the
Association 	at 	the 	time 	the 	aforementioned 	changes 	were
instituted.
8

Ironically, 	the District 	takes 	the position that 	it 	could
not 	require 	teachers 	to 	teach 	180 	days because 	such an 	action
would 	violate 	the parties' 	collective bargaining 	agreement.
The District plans 	to use management personnel, 	certificated
volunteers 	or 	substitutes 	for 	the 	additional 	five 	days 	in
June 	1985, 	if prior agreement 	with FVEA is 	not achieved. 	In
terms of 	the longer 	instructional day, 	however, 	the District
claims 	it 	was 	not 	educationally 	sound or 	administratively
feasible 	to bring 	in 	a different 	teacher 	30 minutes 	a day.
Accordingly, 	the minutes 	set 	forth 	in the 	contract had to be
exceeded 	in order 	to 	receive 	the SB 	813 	incentive money.
In 	its defense, 	the District 	further asserts that it
attempted 	to 	negotiate 	the 	longer 	day 	and year 	with FVEA, 	but
FVEA refused to bargain 	in good 	faith. 	Moreover, 	the 	District
further 	argues 	that 	it 	did 	not 	contemplate 	the passage 	of 	SB
813 	when 	it 	negotiated the 	1982-83 	collective bargaining
agreement and, 	accordingly, 	it 	did 	not waive 	its 	right 	to
unilaterally 	increase 	the 	length of 	the 	school 	day or 	the
school year pursuant 	to 	the District 	Rights 	provision 	of 	the
contract.
In further 	support of 	its defense, 	the District proposed 	to
introduce 	evidence 	regarding 	its 	numerous 	attempts 	to bargain
with FVEA on 	the 	longer 	day 	and 	longer year. 	Although 	some
testimonial 	and 	documentary 	evidence 	was 	presented 	with 	respect
to the District's defense, 	during 	the 	course of 	the hearing,
9

the 	undersigned 	determined 	that 	much of 	the 	evidence 	was
irrelevant. 	Accordingly, 	the 	District was 	given an
opportunity 	to 	make 	an offer 	of 	proof 	regarding 	the 	testimony
which 	would be 	elicited 	if 	the 	District 	were permitted 	to 	fully
present 	its defense. 	For purposes 	of discussion, 	some aspects
of 	that defense are 	outlined below. 	It must be 	noted, 	however,
that 	if 	evidence 	regarding the District's defense 	is deemed
relevant, 	the hearing 	will have 	to be 	reconvened 	in order 	to
give 	the 	Charging 	Party 	an 	opportunity 	to 	rebut 	the 	District's
evidence 	or 	to cross 	examine 	the District's witnesses.
FVEA 	and 	the 	District 	did 	not 	conclude 	salary negotiations
for 	the 	1983-84 	school year until November of 	1983. 	On
February 	17, 	1984, 	the Association 	sunshined 	its 	salary
proposal for 1984-85. 	Thereafter, 	on May 3, 	1984, 	the District
sunshined 	its 	initial 	proposal 	for 	a 	longer day, 	longer year.
This 	proposal 	was 	sunshined 	notwithstanding 	previous 	comments
by 	representatives 	of 	FVEA 	that 	FVEA was 	under 	no 	obligation 	to
bargain 	longer 	day and 	longer year, 	and 	would 	not 	consider
doing 	so 	until 	the 	issue 	of 	salaries 	had been 	resolved. 	The
District 	did 	not hold 	a public hearing 	on 	its 	salary proposal
until June 	7, 	1984. 	In summary, 	FVEA was prepared 	to negotiate
salary early 	in 	1984 pursuant 	to 	the 	salary 	repoener provision
in the parties' 	contract. 	The District's priority, 	however,
was 	on negotiating 	the 	longer 	day and 	longer 	year.
If 	allowed 	to 	testify District 	witnesses 	would have 	stated
that 	from May 	3 	through August, 	the District 	repeatedly made
10

attempts 	to get 	FVEA 	to 	negotiate 	regarding 	the 	longer 	day 	and
longer year. 	At 	all 	times 	relevant hereto, 	FVEA indicated 	that
it 	would 	not 	consider 	negotiating 	the 	longer day 	or 	longer year
until 	the question of 	salaries had been resolved. 	FVEA further
indicated 	that 	it 	was 	either 	illegal 	or 	inappropriate 	for 	the
District 	to 	attempt 	bargaining 	the 	longer 	day and 	longer 	year
or 	to 	condition 	salary negotiations 	on negotiations 	on those
matters. 	In an exchange of 	letters, 	the District 	indicated
that 	it 	was prepared 	to 	negotiate 	on 	the 	longer day 	and 	longer
year 	and 	the Association 	responded 	that 	it 	was prepared 	to
negotiate 	on 	salary. 	Given the 	evidence presented, 	the
undersigned 	finds that up to and 	including June 8, 	1984, 	the
District 	was 	not 	prepared 	to bargain 	salary 	as 	a separate
issue, 	first because 	its proposal 	was 	not 	sunshined until
June 	7 	and 	then because 	it 	conditioned 	salary negotiations 	on
the Association's 	agreement 	to negotiate 	the 	longer 	day and
longer 	year.2	2
Thereafter, 	if 	allowed 	to testify, 	District witnesses would
have 	stated 	that 	the Association 	failed and 	refused to make 	its
representatives 	available 	for 	salary 	negotiations 	until
2 The 	District 	claims 	it 	did 	not 	sunshine 	its 	salary
proposal 	earlier because 	the 	status 	of 	its budget and State
funding were unclear. 	Nevertheless, 	based 	upon the 	testimony
of Association witnesses 	and Robert Sampica, 	Administrator 	-
Personnel 	Services, 	it 	is 	found that 	the District 	unnecessarily
delayed 	salary 	negotiations 	and 	tried 	to 	link 	bargaining 	on
that 	mandatory 	subject 	with bargaining 	on 	the 	subject 	of 	the
longer 	day and year.
11

August 7, 	1985. 	Robert Sampica, 	the District's 	administrator
for Personnel Services, 	and Pamela Rice, 	the Director, 	Business
Services, 	tried 	in vain to get Association 	representatives 	to
the 	table 	so 	that 	the 	District 	could expedite 	salary
negotiations 	and 	then turn 	to 	the 	subject 	of 	the 	longer day 	and
longer year. 	Even after 	the Association and the 	District
reached 	impasse 	on the 	issue 	of 	salaries, 	the Association
refused 	to bargain 	about 	the 	longer 	day and 	longer 	year and
without 	discussion, 	repeatedly rejected 	the District's 	offers.
Apparently because 	discussion 	of 	the 	school 	calendar 	also
embraced 	the 	subject 	of 	the 	extended 	school year, 	the
District's 	attempts 	to discuss 	that 	issue 	were also
unproductive.
D. 	The 	Impact 	of 	the District's 	Changes
1. 	The Longer Day
The Association presented 	several 	witnesses 	who 	teach grade
levels 	one or 	two or 	a combination of 	one and two. 	Each
witness 	described 	the way 	in which 	30 	additional 	minutes 	of
instruction 	each day had 	impacted 	upon 	their 	work 	schedule and
the 	time 	spent 	outside 	the 	regular 	workday preparing 	for 	work.
During the 	1983-84 school year, 	Katherine Wright taught
first 	grade 	at 	the Fulton School. 	In 	1984-85 she 	teaches 	a
first and 	second grade 	combination 	at Arevalos 	School. 	Wright
testified 	that 	in 	1983-84, 	she 	spent most of her duty-free 	time
performing 	functions 	related 	to her 	teaching 	responsibilities.
12

Wright 	worked 	the 	30 	minutes 	before 	students 	arrived 	each day,
worked through her 	recess, 	her 	lunch hour, 	and during the
period 	of 	time 	after her 	class 	was 	dismissed 	until 	she 	was 	able
to 	leave 	school, 	when the 	eighth grade 	class was dismissed.
Wright 	testified 	that 	in 	1982-83 	she 	was 	frequently 	unable 	to
finish her 	required assignments while 	at 	the 	school and 	found
it 	necessary to 	take work home 	once 	or 	twice 	a week.
In 	1984-85, 	Wright 	testified 	that her 	workload 	increased
tremendously. 	She 	testified 	that 	the additional 	30 minutes 	of
instruction were 	added to her 	afternoon 	sessions 	with her 	first
and 	second graders. 	Although 	she 	covered 	the 	same 	subject
areas 	as 	she had covered 	in previous years, 	preparation for
those 	subjects was greatly increased. 	In 	short, 	Wright
testified 	that 	she 	spent 	one 	and one-half 	to 	two hours 	more per
day working 	outside 	the 	framework 	of 	the 	regular 	school day
than she had 	spent 	in 	1983-84. 	Wright did testify that 	15 to
30 minutes 	of 	that 	time was 	attributable 	to 	the 	fact 	that 	she
was 	teaching 	a 	first 	and 	second 	grade 	combination.
Accordingly, 	Wright 	testified 	that 	she worked 	one 	to one and
one-half 	hours 	more 	each day 	than 	she had 	worked 	in 	1983-84 and
the 	increase was 	attributable 	to 	the 	30 	additional
instructional 	minutes 	in 	1984-85. 	Given Wright's description
of what 	is 	involved, 	there 	is no basis 	for questioning her 	time
estimates.
Yvonne 	Hart 	also 	testified 	for 	the Association. 	Hart
taught 	students 	in 	the 	second grade 	at Newland School 	in
13

1983-84 and continued 	in that 	assignment 	in 	1984-85. 	During
the 	1983-84 	school 	year Hart 	was 	required to be at 	school 	at
.	7:55 	a.m. 	and 	she was 	able 	to 	leave 	at 	3:00 p.m. 	Pursuant 	to
the parties' 	collective bargaining 	contract 	she had a 45 minute
duty-free 	lunch. 	For 	the 	1984-85 	school year Hart 	is 	required
to teach approximately 	38 additional 	minutes per day, 	four days
a week. 	She 	testified 	that 	in the 	current 	school year, 	she
spends between 40 minutes 	to an hour a 	day 	longer 	than she did
in the previous year, 	working outside 	the 	framework of 	the
regular 	school day. 	The additional time 	in 	1984-85 	is 	a
combination 	of 	the 	time 	needed 	to prepare 	and evaluate 	work 	for
the 	additional 	instructional 	time and 	the 	time 	previously used
for preparation 	which 	is 	now 	taken 	up by 	instruction.
Miriam Spencer was 	also called as 	a 	witness 	on behalf 	of
FVEA. 	Spencer 	teaches 	the 	first 	grade at James Cox School.
She had 	the 	same assignment 	in 	1983-84. 	Although Spencer's
testimony was 	somewhat 	confused 	during 	cross-examination, 	based
upon her overall testimony, 	it 	is concluded that 	she works 	at
least 	45 	additional 	minutes 	of her 	own 	time 	each 	school 	day 	as
a 	result of 	the 	District's 	required 	increase 	in 	instructional
time. 	In 	addition 	to 	finding 	it 	necessary 	to work 	at 	least 	15
minutes 	of her 	duty-free 	lunch hour, 	Spencer 	spends between 30
minutes 	a day to six hours 	a week working at home, 	in addition
to what 	she 	did 	the previous year.
Finally, 	Barbara Heffner, 	a 	first grade 	teacher 	at Newland
School, 	testified that the 	increase 	in 	instructional time
14

requires her to work, 	on the average, 	30 additional 	minutes 	of
her own time at 	the school 	site, 	an additional 	20 	to 	30 minutes
at home, 	four nights 	a week, 	and 	some additional 	work on
weekends.
All 	FVEA witnesses 	were 	questioned 	as 	to whether 	the
additional 	time, 	for preparing 	work 	and 	evaluating 	the work of
their 	students 	was 	actually 	"required" 	by 	the 	District.
Spencer's 	testimony 	summarizes 	the 	sentiments 	conveyed 	by each
of 	the FVEA witnesses. 	She 	stated:
As 	a professional person and 	I have a
commitment 	to the 	students 	that 	I 	work 	with,
I have 	a commitment 	to 	their 	parents 	to
provide 	a good 	program 	and 	I 	cannot possibly
provide 	that 	without 	the proper 	amount of
time 	spent 	in planning 	and 	evaluating 	the
type of 	work that 	they are doing. 	I 	need to
report 	to parents 	and do 	report 	cards 	and 	I
have 	no 	knowledge of 	that 	if 	I do not 	look
at 	a student's 	work 	and 	the product 	they 	are
turning 	in to me 	to properly 	evaluate how
they 	are progressing 	and how 	I 	can 	further
plan for 	them.
Although only the 	four 	witnesses 	testified 	for FVEA, 	Black
and Hart 	testified 	that 	they had discussed 	the 	issue 	of 	the
longer 	day with other 	teachers 	who 	also 	noted 	that 	they 	were
required 	to work 	longer 	hours 	and 	take more 	work home with 	them
at 	the 	end of 	the 	school day. 	In addition, 	the District's 	own
witnesses 	acknowledged that 	30 	additional 	instructional 	minutes
would 	take 	some additional 	preparation 	time. 	Although District
witnesses 	did 	not 	concur 	with 	the Association 	witnesses 	as 	to
the 	amount of 	time 	required 	as 	a 	result of 	the additional 	30
15

minutes 	of 	instruction, 	Catherine Follett, 	the principal 	of Oka
School 	said 	it 	would 	require an 	additional 	15 minutes 	of
preparation. 	Her 	testimony was 	echoed 	by that 	of 	Ed Lavelle,
the principal of Arevalos School.
2. 	The Longer Year
Several Association 	witnesses 	testified 	that 	they
anticipated that 	the 	District 	was 	going 	to 	require 	their
services 	for 180 days of 	instruction. 	For example, 	Kathy
Wright 	testified that her principal, 	Ed Lavelle, 	had 	created a
work 	schedule 	that 	went 	through June 	20, 	1985, 	and that 	she had
responsibilities 	for each of 	the 	180 	days 	of 	instruction.
Other witnesses, 	however, 	testified 	that 	they were uncertain 	as
to whether 	they 	would be 	required to teach 	180 	or 	175 	days.
Upon questioning by 	the 	undersigned, 	some witnesses
testified 	that 	they did 	not have 	a 	fixed program of 	study
mapped 	out 	for 	each week 	of 	the 	school year 	so 	they had 	not yet
planned 	instructional 	materials 	for 	180 days. 	It 	should be
noted, 	however, 	that most of 	the witnesses were 	from 	the 	first
and 	second 	grade and 	it 	is 	not 	clear 	if 	teachers 	from 	the
higher grade 	levels have 	a 	more 	rigid 	program of 	instruction
and have been 	left 	in 	limbo as 	to 	the 	number of days 	for which
preparation 	is 	required.
In any event, 	during the course of 	the 	formal 	hearing, 	the
District's 	representatives 	and witnesses 	made 	it 	clear 	that 	the
District 	does 	not 	plan to 	require 	regular 	certificated
16

personnel 	to teach more 	than 17 5 days. 	Instructional
responsibilities 	for 	the 	last 	five 	days 	of 	the year 	are 	going
to be 	absorbed 	by management personnel 	or 	certificated
volunteers. 	They will provide 	students with five days 	of
"enrichment."
III. 	ISSUES
A. 	Did 	the 	District unilaterally change a matter 	within
the 	scope 	of 	representation governed 	by the parties' 	collective
bargaining 	agreement?
B. 	Did 	the District have 	the authority, 	pursuant 	to the
collective 	bargaining 	agreement 	or 	otherwise, 	to unilaterally
increase 	instructional 	time 	after 	giving FVEA an 	opportunity 	to
meet 	and 	negotiate?
IV. 	CONCLUSIONS OF LAW
A. 	Unilateral 	Changes 	in Matters Within the Scope 	of
Representation 	and Governed 	by 	the 	Contract.
It 	is well 	settled that, 	absent 	special 	circumstances, 	an
employer's 	unilateral action on a matter 	within the 	scope 	of
representation 	is 	a per 	se 	violation of 	the EERA. 	San Mateo
Community College District 	(6/8/79) 	PERB Decision No. 	94;
San Francisco Community College District 	(10/12/79) 	PERB
Decision No. 	105. 	In cases where 	the parties did not have 	the
specific 	contractual 	provisions 	present here, 	the PERB has
found that matters 	such as 	the school 	calendar, 	the 	starting
and 	ending 	time 	of 	the 	certificated 	work 	year, 	and 	the
placement of holidays 	are matters 	within the 	scope of
17
•

representation. 	Palos Verdes 	Peninsula Unified 	School District
(7/16/79) 	PERB Decision No. 	96; 	Oakland Unified 	School District
(12/16/83) 	PERB Decision No. 	367. 	Although those cases did not
raise 	the 	question presented here, 	the District 	does 	not
dispute 	the 	conclusion that 	the 	number of 	days 	teachers 	are
required 	to work 	is 	a subject 	within the 	scope 	of
representation.
Numerous 	PERB decisions 	have 	addressed 	the 	issue 	of 	whether
an 	increase 	in 	instructional 	time 	or 	a decrease 	in preparation
time 	constitutes 	a unilateral 	change 	on 	a matter 	within 	the
scope of 	representation. 	It 	is well 	settled, 	and 	in this case
the 	employer does 	not 	challenge 	the proposition, 	that 	changes
in 	instructional 	time 	or preparation periods 	are within the
scope of 	representation 	"to 	the 	extent 	that 	changes 	in
available preparation time 	effect 	the 	length of 	the 	employee's
workday 	or duty-free 	time." 	San Mateo 	City School District
(5/20/80) 	PERB Decision No. 	129 at 	19; 	Modesto City Schools
(3/8/83) 	PERB Decision No. 	291.
In the 	instant 	case, 	there 	can be 	no 	legitimate dispute
that, 	if 	the changes were made, 	the changes constitute a
repudiation of 	the 	contract. 	Pursuant to section 	3540.l(h) 	of
the 	EERA, 	collective 	bargaining 	agreements 	are 	binding 	upon the
public 	school 	employer and 	the 	exclusive 	representative.
Moreover, 	pursuant 	to 	the PERB's decision 	in Grant Joint Union
High School 	District 	(2/26/82) 	PERB 	Decision No. 	196 and Chico
18

Unified 	School District 	(2/22/83) 	PERB Decision No. 	286, 	a
charging party establishes 	a 	violation of 	the 	EERA if 	it 	proves
that 	an 	employer breached 	or 	otherwise 	altered 	a collective
bargaining 	agreement 	and 	that 	the breach 	amounted 	to 	a 	change
of 	policy 	that 	had 	a generalized 	effect 	or 	continuing 	impact
upon the 	terms 	and 	conditions 	of 	employment of 	bargaining 	unit
members.
1. 	The Longer Year
Although 	there 	is 	no dispute 	that 	the EERA would be
violated 	if 	the 	employer unilaterally 	required 	the 	teachers 	to
teach five additional 	days per year, 	in the 	instant 	case 	it 	is
found 	that 	the 	District did 	not 	impose 	such a 	requirement. 	At
the hearing, 	the District 	took 	the 	official 	position that 	no
certificated 	employee 	in 	the 	bargaining 	unit 	would be 	required
to 	teach more 	days 	than the 	175 	specified 	in the 	contract.
Moreover, 	when the governing board 	adopted 	the 	school 	calendar,
it 	identified 	it 	as the 	student 	calendar. 	As noted 	above,
board member Mohan made 	a distinction between the 	longer 	year
and 	the 	longer 	day because 	only 	the 	latter 	specified 	that
teachers 	would be 	required to teach and, 	therefore, 	constituted
a clear 	repudiation 	of 	the 	contractual 	limitations.
Although 	District 	negotiators 	consistently 	lumped 	together
the 	concept 	of 	the 	longer 	day 	and 	the 	longer year 	and 	although
District principals 	led 	some 	teachers 	to believe 	that 	they
would be 	required 	to 	teach 	180 days, 	the 	misunderstandings
19

which 	resulted 	from 	those 	actions 	do 	not 	override 	the position
taken by 	the 	District. 	Although the actions 	of 	District
administrators 	which 	led 	to 	those 	misunderstandings 	might 	tend
to undermine 	the position of 	the Association, 	there 	is 	no
reason 	to 	conclude 	that 	the 	misunderstanding 	would 	not have
been 	rectified 	if 	the Association had 	simply asked 	the 	District
questions 	regarding 	its 	intentions 	with 	respect 	to 	the 	180 day
student 	calendar. 	Accordingly, 	based upon the evidence
presented, 	it 	cannot be concluded, 	at this point 	in time, 	that
the 	District has 	violated 	the Act 	with respect 	to 	the 	longer
instructional 	year 	for 	students. 	See San Jose Community
College District 	(9/30/82) 	PERB Decision No. 	240.3
2. 	The Longer Day
Distinguished 	from 	the 	issue 	of 	the 	longer year, 	there 	can
be no dispute 	that, 	absent a viable defense, 	requiring teachers
to 	teach 	an 	average 	of 	30 	extra 	instructional 	minutes 	a day
constitutes 	a 	violation of 	the 	contract 	and 	a 	violation of 	the
EERA. 	Absent 	a contract provision 	specifying the 	amount 	of
preparation 	or 	instructional 	time 	required, 	the Board has held
3Since 	the District has 	stated 	that 	it 	plans 	to 	use
management personnel 	to 	teach the 	last 	five 	days 	of 	the 	school
year, 	this 	case 	does 	raise a 	question 	regarding 	the propriety
of 	the 	transfer of 	bargaining unit 	work. 	See Mt. 	San Antonio
Community College District 	(8/18/83) 	PERB Decision No. 	334.
This 	issue, 	however, 	was 	not 	raised by either party during the
course of 	the hearing 	or 	in their briefs. 	Given that 	the 	issue
and 	the 	facts 	relevant to 	it 	were 	not 	fully 	litigated, 	no
conclusions 	will 	be 	reached 	in this 	proposed 	decision.
20

that 	the 	charging party must present 	evidence 	that 	a change 	in
the allocation of 	instructional 	or preparation time within the
school day 	affects 	the 	length of 	the 	employee's 	workday 	or
duty-free time. 	Modesto City Schools, 	supra. 	In the 	instant
case, 	it 	is 	found that FVEA presented 	sufficient 	evidence 	to
establish that 	the 	30 minute a day 	increase 	in 	instructional
time had an impact on employee's duty-free 	time. 	Black, 	Hart,
Spencer, 	and Heffner all testified that, 	at a minimum, 	an
average of 45 	minutes 	of their 	free 	time, 	each day, 	is now
allocated 	to 	instruction 	related 	activities.
In the instant case, 	however, 	it 	is found that it 	was
unnecessary 	for 	the 	Charging 	Party 	to 	establish an 	actual
impact 	on the 	length of 	the 	school 	day or 	the 	amount 	of
duty-free 	time 	involved 	in 	order 	to establish a 	violation 	of
the EERA. 	Where, 	as here, 	the contract 	is 	repudiated 	and the
repudiation 	is 	not an 	isolated 	incident, 	the Act 	is violated
and 	no 	further 	showing 	should be 	required.
B. 	Was 	the 	District's Action Justified by 	the 	Contract
or Public 	Policy Considerations.
Throughout 	the hearings 	and 	in 	an 	extensive post-hearing
brief, 	the 	Respondent has 	argued that 	its 	action 	in 	increasing
the 	length of 	the 	school 	day was 	necessary 	in order 	to 	receive
the 	incentive monies 	offered by SB 	813. 	The District 	argues
that 	when the 	collective bargaining contract 	was 	negotiated, 	it
did 	not 	contemplate 	the passage of 	SB 813 and, 	accordingly, 	it
did 	not 	"clearly 	and 	unmistakably" 	waive 	its 	right 	to initiate
21

negotiations 	on 	a matter 	within 	the 	scope 	of 	representation.
Accordingly, 	the 	Respondent 	argues 	that 	its 	action was
justified 	by 	the 	collective 	bargaining 	agreement 	and 	by 	some
higher 	authority which mandates 	that 	the 	District 	oversee 	the
educational needs of the students. 	Finally, 	the Respondent
maintains 	that 	it did 	not act unilaterally, 	in the way that
term 	is 	ordinarily 	used. 	The Respondent 	alleges 	that 	it 	gave
the 	Charging 	Party 	notice of 	its 	proposed action and an
opportunity 	to 	negotiate 	and 	that 	the 	Respondent 	only 	acted
after 	the 	Charging 	Party 	refused to discuss 	the 	issues 	of
longer 	day 	and year.
Although 	some 	observers 	might 	conclude 	that 	FVEA was 	not
sufficiently 	sensitive 	to 	the 	alleged 	needs 	of 	the 	District 	and
its 	students, 	the District's 	argument 	is without 	logical,
legal, 	or factual 	support. 	Although it 	is true that the
parties 	did 	not 	enter 	into 	the 	collective 	bargaining 	agreement
contemplating the passage of 	SB 813, 	the 	District has
consistently 	failed 	to address 	the 	fact 	that 	it 	agreed 	in 	its
binding 	contract, 	to a specified 	number of 	minutes as 	the
instructional 	responsibility 	of 	first 	and 	second 	grade 	teachers.
.
Throughout 	this proceeding, 	the 	District has asserted 	its
right pursuant 	to 	the 	contract 	to 	"determine 	the 	times 	and
hours 	of 	operation" 	and to 	"determine 	the kinds and 	level 	of
services to be provided." 	The District, 	however, 	seems to
ignore 	the fact 	that 	it 	limited 	its 	rights when 	it agreed that
22

the 	exercise 	of 	those 	rights 	would 	be 	"limited 	only by 	the
specific 	and express 	terms 	of 	this 	agreement, 	. . . " 	Based
upon the 	language 	in the 	contract 	itself, 	the District 	did 	not
have 	the 	authority to 	increase 	the 	number of 	minutes 	of
teaching 	time 	required 	of 	first 	and 	second 	grade 	teachers.
Although PERB has 	considered 	few cases where 	the 	contract
repudiation 	is as clear as 	it 	is 	in the 	instant 	case, 	PERB has
held 	that 	the 	terms 	of 	a collective bargaining 	agreement, 	once
agreed 	upon, 	"constitute 	a waiver 	for 	the 	term of 	the 	agreement
of 	the 	right 	to bargain 	over 	issues 	expressly covered
therein." 	Mt. 	Diablo Unified 	School District 	(12/30/83) 	PERB
Decision No. 	373 at 	47. 	The District 	fails to address either
Mt. 	Diablo 	or 	the provision of 	its 	contract 	which provides
that, 	during the 	contract term, 	the Association and the
District 	expressly waive 	and 	relinquish 	the 	right 	to 	meet 	and
negotiate. 	Thus, 	according to PERB precedent and the parties'
contract, 	the District's 	argument 	is 	unpersuasive; 	the 	fact
that 	FVEA was 	given 	an 	opportunity 	to negotiate 	regarding 	the
longer day 	and year 	is 	irrelevant 	and 	does 	not 	sanction 	the
employer's 	actions because 	FVEA had 	no 	duty to negotiate and,
at 	all 	times 	relevant herein, 	FVEA refused 	to negotiate.
The 	District's 	arguments 	are misplaced 	in 	other 	respects 	as
well. 	For example, 	the District 	argues 	that 	the Association's
bad 	faith bargaining 	on 	the 	issue 	of 	salaries gave 	the 	District
the 	prerogative 	to 	unilaterally 	take 	action 	with 	respect 	to 	the
23

length of 	the 	school day. 	That 	argument 	is 	advanced 	despite
the 	fact 	that 	the 	District 	never 	filed an unfair practice
charge 	against 	the Association. 	Although 	such a defense 	might
have 	some place 	in an 	action by FVEA alleging 	a unilateral
change 	in salaries, 	it has no place 	in the 	instant proceeding.
In 	addition to 	concluding 	that 	PERB precedent 	and 	the
parties' 	contract do not 	support 	the Respondent's position, 	it
should be 	noted 	that 	the 	Respondent's 	attempt 	to 	saddle 	the
Charging 	Party 	with 	responsibility 	for 	delays 	in 	negotiations
is 	not 	supported by the 	record. 	SB 	813 became effective on
July 28, 	1983. 	Although the 	extent 	to which the legislation
would be 	funded 	was 	not 	entirely clear, 	nothing precluded 	the
Respondent 	from 	approaching 	the 	Charging 	Party 	about
contingency plans before 	the 	spring of 	1984. 	Similarly,
although 	the District 	claims 	that 	the 	status 	of 	its budget 	and
the 	status 	of 	state 	funding prevented 	it 	from entering 	into
salary negotiations 	as 	required 	by the 	contract, 	nothing
precluded 	contingency 	negotiations 	on that 	issue. 	Indeed, 	the
Charging 	Party 	submitted 	its 	salary proposal 	on February 	17,
1984, 	and the 	District did 	not 	sunshine and 	conduct 	a public
hearing on 	its proposal 	until June 	7, 	1984. 	Thus, 	four months
of potential negotiations were lost. 	Moreover, 	even after the
District 	sunshined 	its proposal, 	it 	initially 	failed 	to
negotiate 	salaries 	separately and 	impermissibly tied
negotiations 	on 	salary to negotiations 	on 	the 	longer day 	and
year, 	a 	subject 	the Association was 	not 	required to negotiate.
24

Finally, 	before concluding 	the 	discussion of 	the 	merits 	of
the Respondent's position, 	it 	is appropriate to review private
sector authorities 	to 	see 	if 	there 	are 	cases 	which 	support 	the
Respondent's position that 	it 	can repudiate 	its 	contract
provided 	it 	gives 	the 	union notice 	and 	an opportunity 	to
negotiate. 	The California courts 	and PERB 	itself have 	long
held 	that 	reference 	to 	such cases 	may be helpful 	in 	resolving
questions which arise under 	state 	labor 	law 	statutes. 	Fire
Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 608; 	Novato
Unified School District 	(4/30/82) 	PERB Decision No. 	210.
Although 	the 	EERA does 	not 	contain 	a section 	comparable 	to
section 8(d) 	of the NLRA, 	29 USC 158(d), 	a review of cases
arising under 	the NLRA is 	still 	instructive.4
The Respondent 	cites Strut her Wells Corp. 	v. 	NLRB
(10th Cir. 	1983) 	721 F.2d. 	465 	[114 LRRM 3553] 	in support of
its position herein. 	That 	reliance 	is misplaced. 	In Struther
Wells 	the 	Court held 	that 	the 	employer was 	under 	no obligation
to provide 	a 	cost-of-living 	adjustment because 	that 	benefit 	did
not 	survive 	the expiration of 	the parties' 	collective
bargaining 	agreement. 	In dicta 	the 	Court 	indicated 	that 	even
if 	the benefit 	survived 	the 	expired 	contract, 	the employer
could 	make changes 	after 	it 	had 	given 	the 	union 	notice 	and 	an
4The 	NLRA provides 	that 	when 	a collective 	bargaining
agreement 	is 	in effect, 	no party can terminate or modify 	it
unless 	certain procedures 	are 	followed.
25

opportunity 	to negotiate. 	Clearly, 	the 	case 	described 	by the
10th Circuit 	is 	not 	comparable 	to 	the 	instant unfair practice
proceeding. 	Here 	we 	are 	not 	talking 	about 	an expired 	contract.
The 	cases 	relied 	upon by 	the 	Charging 	Party are more on
point. 	In C & S Industries 	(1966) 	158 NLRB 454 	[62 LRRM 1043],
the NLRB 	considered a case where 	the 	argument 	was made 	that 	the
employer 	offered 	to bargain with the 	union before 	it
implemented 	a wage 	incentive program during 	the 	term of 	the
contract 	which prohibited 	changes 	in 	the 	method 	of 	paying
employees 	without 	prior 	negotiations 	and 	the written consent 	of
the union. 	In rejecting the 	employer's 	argument, 	the Board
noted:
[A]ssuming 	that 	Respondent 	made 	a 	sufficient
offer 	to bargain 	regarding 	the wage
incentive 	system, 	we 	reject 	the premise of
Respondent's 	argument 	that 	one party to an
existing 	contract 	may during 	its 	term
unilaterally 	institute 	a change 	in contract
terms 	after 	it 	has 	offered 	to bargain
regarding 	the 	change and 	the 	other party has
refused 	to discuss 	the 	matter.
It is true, 	of course, 	that where during
timely negotiations 	for 	a 	new 	agreement 	an
employer has 	offered to bargain with 	a union
concerning 	a proposed 	change 	in contract
conditions 	and 	the union has 	refused 	to
bargain, 	the 	employer does 	not 	violate his
statutory obligation 	if 	following 	the
effective period 	of 	the 	expiring contract,
he unilaterally 	institutes 	the 	change. 	The
situation is different, 	however, 	where, 	as
here, 	an 	employer 	seeks to modify during the
life of 	an existing contract 	terms 	and
conditions 	of 	employment 	embodied 	in the
contract 	and made 	effective 	for 	its 	term.
In the 	latter 	situation, 	a bargain having
26

already 	been 	struck 	for 	the 	contract 	period
and 	reduced 	to writing, 	neither party 	is
required 	under 	the 	statute 	to 	bargain 	anew
about 	the 	matters 	the 	contract has 	settled
for 	its duration, 	and 	the 	employer 	is no
longer 	free 	to 	modify 	the 	contract 	over 	the
objection of the Union. 	Id. 	at 456-457.
(Emphasis 	added.)
See also, 	Dunham Bush, 	Inc. 	(1982) 	264 NLRB 1347 	[111 LRRM
1389].
Finally, 	it 	must be 	noted 	that 	the District makes 	no
attempt 	to argue 	that 	it had a 	right 	to 	repudiate 	the 	contract
because 	of 	any compelling 	statutory 	reason 	or business
necessity. 	The 	Respondent 	recognized that 	the 	Education Code
provisions 	enacted 	by SB 	813 	did 	not 	mandate 	any changes 	for
the 	school 	year 	1984-85. 	What 	the 	Respondent 	failed to
recognize 	is the heavy burden 	it must bear 	if 	it 	wishes to
repudiate 	a 	collective bargaining 	agreement. 	PERB will 	not
sanction 	unilateral 	changes 	when 	statutes 	give 	the 	employer
discretion. 	See, 	Holtville Unified School 	District 	(9/30/82)
PERB Decision No. 	250. 	Moreover, 	the California Supreme Court
has 	specifically 	recognized 	that 	legislation which 	impairs 	a
parties 	contractual 	obligations 	must 	be 	carefully 	scrutinized.
In Sonoma County Organization of 	Public 	Employees 	v. 	County of
Sonoma 	(1979) 	23 	Cal.3d 29 6, 	the Supreme Court considered 	the
constitutionality of 	legislation which 	required 	local 	agencies
to 	repudiate 	their 	collective 	bargaining 	agreements 	in 	order 	to
receive 	state 	funding. 	Recognizing 	that 	the 	legislation was
enacted 	after 	the passage of 	Proposition 	13, 	a period 	when the
27

Legislature 	thought 	that 	the 	entire 	state 	was 	facing 	a grave
financial crisis, 	the Court 	nevertheless 	noted:
Since 	the 	statute 	accomplishes 	a severe
impairment of petitioners' 	contractual
rights, 	the 	"height of 	the hurdle 	the state
legislation must clear" 	is elevated and 	"a
careful 	examination 	of 	. . . 	[its] 	nature
and purpose" 	is 	required.
[R]espondents have 	clearly 	failed 	to 	satisfy
their 	threshold burden 	of 	demonstrating 	that
the 	substantial 	abridgement of petitioners'
contract 	rights 	to an 	increase 	in wages 	was
warranted by a grave 	financial 	crisis, 	and
they 	advance 	no 	other 	justification 	for 	the
impairment.
Thus 	we 	conclude 	that 	the provision of
[Government 	Code] 	section 	16280 which
invalidates 	agreements 	granting
cost-of-living 	wage 	increases 	to 	local
public 	agency 	employees 	is 	invalid 	as 	an
impairment of 	contract 	in violation of 	both
the 	state 	and 	federal 	Constitutions.
Id. 	at 	309 and 313-14. 	(Citations and
footnotes 	omitted.)
If 	contract 	repudiation 	is 	not permissible 	under 	the 	conditions
that prevailed 	in 	1978-79 	after 	the passage of 	Proposition 	13,
it 	is 	readily 	apparent 	that 	contract 	repudiation cannot be
sanctioned when 	the 	legislation used as 	a basis 	for 	the
repudiation does 	not 	compel 	such 	a 	result 	and 	when the
breaching party offers 	no 	compelling 	financial 	or 	educational
reason 	for 	its 	actions.
Based 	upon 	a 	review 	of 	the 	authorities 	and 	the 	evidence
presented, 	the 	District has 	failed 	to establish a 	viable
28

defense 	to 	its 	repudiation 	of 	the 	collective bargaining
agreement 	and 	the 	Charging 	Party has 	established 	a 	violation of
the EERA.
V. 	CONCLUSION
Based upon the 	entire 	record of 	these proceedings, 	it 	is
concluded 	that 	the 	District 	unilaterally 	increased 	the 	length
of 	the 	school day 	for 	teachers 	teaching grade 	levels 	one 	and
two and 	that 	such action violated 	section 	3543.5(c) 	of 	the
EERA. 	In unilaterally repudiating the parties' 	collective
bargaining 	agreement 	and 	changing 	a matter 	within the 	scope of
representation, 	the District 	concurrently violated 	sections
3543.5(a) 	and 	(b). 	San Francisco Community College District
(10/12/79) 	PERB Decision No. 	105. 	It 	is also 	found, 	based upon
the 	entire 	record 	in these proceedings 	that 	the 	District did
not 	unilaterally 	increase 	the 	length of 	the 	school year 	for
teachers 	although 	it did make 	such a change 	for 	students.
Since 	the 	increase 	in the 	length of 	the 	school year 	for
students does 	not, 	by itself, 	constitute a violation of 	the
EERA, 	that 	aspect of 	the Charge/Complaint, 	should be dismissed.
VI. 	REMEDY
The 	most 	difficult 	aspect 	of 	the 	current 	case 	is 	trying 	to
fashion the appropriate 	remedy. 	In 	a unilateral 	change 	case,
it 	is 	standard practice 	to order the 	employer 	to cease 	and
desist 	from 	its 	unlawful action, 	to 	restore 	the 	status quo
ante, 	and to make 	employees 	whole 	for 	any damage 	they have
29

suffered 	as 	a result 	of 	the 	unlawful 	unilateral 	change. 	Rio
Hondo Community College District 	(3/8/83) 	PERB Decision No. 	292.
In the 	instant proceeding, 	if the parties have not
previously reached 	agreement, 	upon 	request 	of 	the Association,
the 	employer 	should 	be 	required 	to 	restore 	the 	conditions which
existed prior to 	its 	unlawful 	action. 	Accordingly, 	the
District 	should be permitted to 	require 	only 	1250 	minutes 	of
teaching 	per 	week 	from 	first 	and 	second 	grade 	teachers.
However, 	in order 	to avoid the 	mid-semester disruption of
student 	schedules, 	the 	status 	quo 	shall be 	restored 	effective
the 	next 	full 	semester 	following 	issuance of 	this 	order. 	In
other words, 	if 	or when the parties 	negotiate 	for 	a new
collective 	bargaining 	agreement, 	it 	should be understood that
they 	are 	bargaining 	from 	the position 	of 	1250 	minutes 	a week 	of
instruction 	for 	first 	and 	second 	grade 	teachers.
It 	is 	also 	standard 	in 	a unilateral 	change 	case 	to order
the 	employer 	to bargain with the union about 	the matter(s) 	at
issue. 	In the 	instant proceeding, 	however, 	since 	it has been
found 	that 	FVEA has 	no obligation to bargain 	about 	the matter
at 	issue, 	it 	would be 	inappropriate 	to require bargaining."
Accordingly, 	unless 	FVEA wants 	to bargain 	about 	the 	longer 	day
or 	unless 	the parties 	make a 	timely demand 	to 	open negotiations
on 	a new collective 	bargaining 	agreement, 	negotiations 	will 	not
be 	required 	as part 	of 	this 	order.
It 	is 	also 	typical 	in 	a unilateral change 	case 	to make
employees 	whole 	for 	any monetary 	losses 	incurred 	by 	them 	as 	a
30

result 	of 	the 	employer's 	unlawful 	conduct. 	In Corning Union
High School District 	(8/17/84) 	PERB Decision No. 	399, 	a case in
which PERB 	found 	that 	a school 	district had 	unlawfully
eliminated the preparation period 	for 	certain teachers, 	PERB
issued 	a 	remedial 	order 	which had 	two alternative methods 	of
compensating 	those 	affected by 	the 	district's 	action. 	The
Board 	ordered 	the 	district 	to 	compensate 	the 	affected 	employees
by 	giving 	them paid 	time 	off 	work 	"which 	comports 	with the
number 	of 	extra hours 	each employee 	actually worked." 	In 	the
alternative, 	the Board ordered that 	if 	the district and the
employee 	organization were 	unable 	to agree 	on the 	manner 	in
which the 	time off 	would be 	granted, 	"the 	employees concerning
whom 	there 	is 	no 	agreement 	shall 	receive 	monetary 	compensation
commensurate 	with the 	extra hours 	worked."
In concept, 	there 	is 	no problem with applying the Corning
remedy 	in the 	instant 	case. 	In order 	to more 	fully effectuate
the purposes of 	the EERA, 	however, 	it 	is 	found that the 	remedy
should be modified 	in 	several 	respects. 	In the present 	case,
the 	collective 	bargaining 	contract 	established 	the 	number 	of
instructional 	minutes 	that 	the 	District 	could 	require of 	first
and 	second grade 	teachers. 	Having 	established 	a 	violation of
the 	contract, 	the 	Charging 	Party should 	not be 	required to
establish 	any 	further 	actual 	harm 	to 	individual 	employees.
Accordingly, 	at a minimum, 	the District 	should be 	required to
give 	each affected 	employee 	at 	least 	the 	equivalent 	of 	30
31

minutes 	a day paid 	time 	off 	work 	or 	monetary 	compensation
commensurate with the 	30 	extra minutes 	of 	instruction each day,
through 	the 	date 	when the District 	restores 	the 	status 	quo or
the parties 	otherwise 	reach agreement. 	Employees 	no longer
employed by the District 	will, 	of course, 	get monetary
compensation. 	Moreover, 	whenever monetary compensation 	is
provided, 	it 	should 	include 	interest 	at 	the 	rate 	of 	ten 	(10)
percent 	per 	annum.
Nothing 	said 	above 	should 	be 	construed 	as 	a 	finding 	that
the 	affected 	employees 	are 	only entitled to 	30 	minutes 	a 	day of
compensatory time off 	or compensation; 	the 	30 minutes 	is 	a
minimum. 	Whether 	employees 	are 	entitled 	to 	additional
compensation 	is 	a matter 	which 	should be 	left 	to 	the parties
for 	resolution or 	to a compliance hearing 	if 	the parties 	are
unable 	to 	reach agreement. 	In order 	to guide 	the parties
and/or a hearing officer, 	however, 	the undersigned makes the
following 	observation. 	Based 	upon 	the 	testimony 	of 	all 	the
witnesses, 	it 	is found that, 	during the course of their
workday, 	first 	and 	second grade 	teachers 	had 	approximately one
minute of 	non-instructional 	time 	for 	every two minutes 	of
instructional 	time, 	excluding 	the duty-free lunch. 	In order 	to
maintain that 	ratio, 	teachers who were 	required to teach an
average of 	30 	additional 	minutes per day 	should 	get 	45 	minutes
of paid 	non-instructional 	time.
Finally, 	it 	should be 	noted 	that 	nothing herein 	should
deprive 	the 	teachers 	at 	Oka School 	from receiving 	the 	same make
32

whole 	remedy 	afforded 	to other 	employees. 	Although 	nothing
precludes 	the parties 	from agreeing to a different 	result, 	it
is 	found 	that 	the 	teachers 	at Oka School 	volunteered 	for
additional 	instructional time 	in 1983-84. 	In 1984-85, 	the year
at 	issue 	in this proceeding, 	like other teachers 	in the
District, 	they were 	forced to provide 	instruction above 	the
limits 	established 	in 	the 	contract.
It 	also 	is 	appropriate 	that 	the 	employer be 	required to
post 	a notice 	incorporating the 	terms 	of 	the 	order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	employer
indicating that 	it 	will 	comply with the 	terms 	thereof. 	The
notice 	shall 	not be 	reduced 	in size. 	Posting 	such a notice
will provide 	employees 	with 	notice 	that 	the 	employer has 	acted
in an 	unlawful 	manner and 	is being 	required to 	cease and desist
from 	this 	activity. 	It 	effectuates 	the purposes 	of 	the Act
that 	employees be 	informed of 	the 	resolution of 	the 	controversy
and 	will 	announce 	the 	employer's 	readiness 	to comply with 	the
ordered 	remedy. 	See 	Placerville Union School 	District
(9/18/78) 	PERB Decision No. 	69; 	Pandol and Sons v. 	Agricultural
Labor Relations Bd. 	(1979) 	98 Cal.App.3d 580, 	587; NLRB v.
Express Publishing Co. 	(1941) 	312 U.S. 	426 [8 LRRM 415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact and 	conclusions 	of 	law,
and 	the 	entire 	record 	in this 	case, 	and pursuant 	to EERA
section 	3541.5(c), 	it 	is hereby ORDERED that the Fountain
33

Valley Elementary School District, 	its 	governing board 	and 	its
representatives 	shall:
1. 	CEASE AND DESIST FROM:
(A) 	Taking 	unilateral 	actions 	to 	repudiate 	the 	binding
collective 	bargaining 	contract 	between 	the 	Fountain Valley
Education Association 	and 	the 	Fountain Valley 	Elementary 	School
District 	by 	requiring 	teachers 	to provide 	1400 minutes per 	week
of 	instruction to 	students 	at 	grade 	levels 	one and 	two;
(B) 	Denying 	the 	Fountain Valley Education Association
the 	right 	to 	represent 	employees 	by 	unilaterally 	repudiating
the parties 	collective 	bargaining 	agreement 	with 	respect 	to 	the
amount 	of 	instructional 	time 	required 	of 	teachers 	at 	grade
levels 	one and two;
(C) 	Interfering with employees 	in the 	exercise 	of
rights 	guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act
by 	unilaterally 	repudiating 	the 	contract 	negotiated 	by 	the
Fountain Valley 	Education Association and 	the 	District.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
(A) 	Upon completion of 	the 	school 	semester during
which this 	order becomes 	final, 	reinstate 	the 	instructional
program 	in effect prior 	to 	the 	1984-85 	school year 	so 	that 	no
teacher 	providing 	instruction 	for 	grade 	levels 	one and two 	is
required 	to 	teach more 	than 	1250 minutes 	per week, 	until 	such
time as 	the parties 	are 	required to negotiate or elect 	to
34

negotiate 	and 	reach 	agreement 	or 	negotiate 	through 	completion
of 	the 	statutory 	impasse procedure 	concerning 	the 	subject
matter of 	the unilateral change. 	However, 	the 	status quo ante
shall not be 	restored if, 	subsequent to 	the District's actions,
the parties, 	have, 	on their own initiative, 	reached 	agreement
or 	negotiated 	through completion of 	the 	impasse procedure
concerning 	instructional 	time 	for 	first 	and 	second 	grade
teachers.
(B) 	Grant 	to 	each employee 	required 	to teach more 	than
the 	1250 	minutes provided 	in the 	contract 	the 	amount of time
off 	which corresponds 	to 	the 	number 	of 	additional 	instructional
minutes 	taught or, 	if 	agreement 	cannot be 	reached as to 	the
manner 	in which to grant 	such time 	off 	or 	if 	an 	individual 	is
no 	longer 	in the District's 	employ, 	monetary compensation
commensurate 	with 	the 	additional 	minutes 	worked. 	Any monetary
payment 	shall 	include 	interest at 	the 	rate of ten 	(10) 	percent
per 	annum.
(C) 	Grant 	to 	each 	employee harmed 	by the 	repudiation
of 	the 	contract 	the 	amount of 	time off 	which corresponds 	to 	the
number 	of 	extra 	minutes 	actually worked 	beyond 	the 	regular
workday as 	a 	result of 	the District's unlawful action. 	Such
time 	off 	is beyond 	the automatic 	amount provided 	for 	in
paragraph 	(B) 	above. 	Should the parties fail to reach a
satisfactory 	accord 	as to 	the 	manner 	in 	which 	such 	time off
will be granted or 	if 	an 	individual 	is 	no 	longer 	in the
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District's 	employ, 	then 	such 	employees 	will be granted 	monetary
compensation commensurate 	with 	the 	additional hours 	actually
worked. 	However, 	if 	subsequent 	to the District's 	unlawful
action, 	the parties have, 	on their own 	initiative, 	reached
agreement 	or 	negotiated 	through 	the 	completion 	of 	the 	statutory
impasse procedure 	concerning 	these 	subjects, 	then 	liability 	for
compensatory 	time 	off 	or 	back pay 	shall 	terminate 	at 	that 	point
in time. 	Any monetary payment 	shall 	include 	interest 	at 	the
rate 	of 	ten 	(10) 	percent per annum.
(D) 	Within ten 	(10) 	workdays 	from 	service of 	the 	final
decision 	in this matter, 	post 	at 	all 	school 	sites 	and all 	other
work 	locations where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the notice 	attached hereto as 	an 	appendix.
The 	notice must 	be 	signed 	by an 	authorized 	agent of 	the
District 	indicating 	that 	the 	District 	will 	comply 	with 	the
terms 	of 	this 	order. 	Such posting 	shall be maintained 	for 	a
period 	of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall be 	taken to 	insure 	that 	the 	notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or covered by 	any other material.
(E) 	Upon issuance of 	a final decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply 	with 	these 	orders
to 	the Los Angeles 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in 	accordance 	with his/her 	instructions.
IT 	IS FURTHER ORDERED 	all 	other 	allegations 	in the Charge
and 	Complaint 	are hereby DISMISSED.
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Pursuant 	to California Administrative Code, 	title 8,
part 	III, 	section 	32305, 	this Proposed Decision and Order 	shall
become final 	on April 	16, 	1985, 	unless 	a party 	files 	a timely
statement of 	exceptions. 	In accordance with the rules, 	the
statement 	of 	exceptions 	should 	identify by page 	citation 	or
exhibit 	number 	the portions 	of 	the 	record 	relied 	upon for 	such
exceptions. 	See California Administrative Code, 	title 8,
part 	III, 	section 32300. 	Such 	statement of 	exceptions and
supporting brief 	must 	be 	actually 	received 	by 	the 	Public
Employment Relations 	Board 	itself 	at 	the headquarters 	office 	in
Sacramento before 	the 	close 	of business 	(5:00 p.m.) on
April 	16, 	1985, 	or 	sent by telegraph or certified United States
mail, 	postmarked 	not 	later 	than the 	last 	day 	for 	filing 	in
order 	to be 	timely 	filed. 	See 	California Administrative 	Code,
title 8, 	part 	III, 	section 32135. 	Any statement of 	exceptions
and 	supporting brief 	must 	be 	served 	concurrently 	with 	its
filing 	upon each party to 	this 	proceeding. 	Proof 	of 	service
shall be 	filed with the Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32300 and 32305.
Dated: 	March 27, 	1985
Barbara E. Miller
Administrative Law Judge
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