Temple City Unified School District (PERB 0782E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TEMPLE 	CITY EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
TEMPLE 	CITY 	UNIFIED
SCHOOL 	DISTRICT,
Respondent.
Case Nos. 	LA-CE-2628
LA-CE-2662
PERB Decision No. 	782
December 22, 	1989
Appearances: 	California Teachers Association by Charles 	R.
Gustafson, 	Attorney, 	for Temple City Education Association,
CTA/NEA; 	Wagner, 	Sisneros & Wagner by John J. 	Wagner, 	Attorney,
for 	Temple 	City 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	These consolidated cases are before the
Public 	Employment Relations 	Board 	(PERB 	or Board) 	on 	exceptions
filed by both parties 	to 	a 	PERB 	administrative 	law 	judge's 	(ALJ)
proposed decision. 	The ALJ 	found that 	the 	Temple City Unified
School 	District 	(District) 	unlawfully by-passed the 	Temple 	City
Education Association, 	CTA/NEA 	(CTA) 	by negotiating directly with
two 	teachers 	over the 	terms 	of 	their 	severance 	from employment.
The ALJ 	dismissed 	allegations 	that 	the 	District 	retaliated
against 	these 	same 	two 	teachers 	for refusing the 	District's
severance 	offers. 	The alleged 	retaliation 	involved unfavorable
assignments. 	The ALJ 	found that those 	allegations were 	subject
to binding arbitration pursuant to the parties' 	contractual
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grievance machinery and, 	therefore, 	must be deferred. 	(Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646.)
As 	discussed below, 	we 	affirm the 	finding 	that 	the
retaliation 	allegations 	must 	be 	deferred 	to 	binding 	arbitration
and 	reverse 	the 	finding 	that 	the 	District 	unlawfully by-passed
CTA by 	negotiating 	directly with 	the 	two 	teachers 	over 	the 	terms
of 	their 	severance.
FACTUAL 	SUMMARY
Case No. 	LA-CE-2628
In the spring of 	1987, 	Richard Anthony, 	the District's
assistant 	superintendent of pupil personnel, 	was 	advised that
there would be a 	surplus 	of 	teachers 	in the 	Social 	Studies
Department at the District's 	high 	school. 	The 	surplus was 	due to
the 	need to place 	a 	former 	coach 	in that department who was
resigning 	his 	coaching 	assignment 	and had 	to be 	reassigned 	to
make 	room 	for the 	new coach 	in the 	Physical 	Education Department.
At 	about the 	same time, 	Anthony was 	informed by the
superintendent 	and 	the 	high 	school 	principal 	that 	Marjorie 	Mohr,
a teacher 	for the District 	for almost 	33 	years, 	might be
interested 	in retiring, 	but 	first wanted to 	save 	enough money 	for
a 	new car.
About April 	1, 	1987, 	Anthony asked Mohr to come to his
office, 	where he told her that 	"the Board 	is 	interested 	in buying
you 	a 	car to help with your retirement." 	Anthony and Mohr 	spoke
again 	shortly thereafter. 	Mohr asked 	if 	the offer was 	in 	lieu 	of
the 	five-year 	early 	retirement program offered by 	the 	District.
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When Anthony replied 	that 	it was, 	Mohr told him that 	she 	could
not 	afford to retire at the end of 	the year. 	There 	is 	no
evidence that the matter was 	ever brought up again. 	It 	is
undisputed 	that CTA was 	given no notice 	of 	the negotiations 	with
Mohr.
Soon after 	the 	conversations 	between Mohr and Anthony,
preparations 	began to place 	the new Social 	Studies 	teacher 	and
cure 	a 	shortage of teachers 	in the English Department. 	On the
recommendation of 	the chair of 	the English Department, 	Mohr was
tentatively 	selected to 	be 	reassigned to 	that 	department.
Members 	of 	the 	Social 	Studies 	Department were 	not pleased with
this 	prospect 	and 	suggested various 	alternatives, 	including 	the
hiring 	of 	someone 	specifically 	trained to 	teach 	English 	and
having various 	Social 	Studies 	teachers 	teach part-time 	in the
English 	Department. 	These 	suggestions were not 	acceptable 	to 	the
administration, 	though a 	compromise 	eventually was 	reached
whereby Mohr was 	to 	teach 	three 	classes 	in English and two 	in
Social 	Studies. 	Also a 	factor in Mohr's 	reassignment was 	the
District's 	desire 	to 	add greater 	emphasis 	on economics 	in the
Social 	Studies 	classes Mohr had been teaching. 	Another teacher,
Theodore Carothers, 	had extensive training 	in the teaching of
economics. 	Mohr's 	reassignment to the English Department 	is 	the
basis 	for her 	retaliation claim.
Case No. 	LA-CE-2662
In the winter of 	1987, 	Roger Juranek, 	a teacher at the
District 	for about 	15 years, 	was 	very unhappy with his 	assignment
33

at Longden Elementary School. 	He did not trust, 	or get along
with, 	the principal at that 	school. 	On or about January 	13,
1987, 	Juranek went to 	see Anthony to request a transfer to
Cloverly School. 	Anthony testified 	that a 	transfer to Cloverly
was 	ruled 	out due 	to a 	controversy that had arisen there 	eight
years 	earlier 	involving Juranek and 	students who, 	at the 	time of
the transfer request, 	had younger 	siblings 	at the 	school. 	A
transfer to 	Emperor Elementary was 	ruled out, 	Anthony asserted,
because 	Juranek's 	ex-wife 	taught 	there. 	Anthony 	stated 	that 	Oak
Avenue 	Junior 	High was 	also 	ruled out because 	Juranek had 	taught
there 	in the past 	and the 	experience was 	"not particularly
successful."
On May 	5, 	1987, 	Anthony 	sent a message to Juranek that he
wanted to 	see him that afternoon. 	When they met, 	Anthony told
Juranek that a transfer to Cloverly, 	or to any other 	school 	in
the District, 	was 	not 	likely to happen. 	Anthony 	suggested that
Juranek might want 	to go 	to a different district 	and get 	a 	fresh
start. 	He 	also 	suggested that the 	District might be willing 	to
provide a cash settlement, 	up to a year's 	salary, 	if he resigned.
Juranek rejected this 	offer. 	As with Mohr, 	there was 	no notice
to 	CTA that 	such 	an offer would be 	made 	to 	Juranek.
Two 	allegedly 	adverse personnel 	actions 	took place 	after 	the
May 	5 meeting. 	First, 	Anthony advised Juranek that, 	given a new
parental 	complaint, 	the Board of 	Education might 	study his
personnel history, 	including a 	sealed envelope 	in his personnel
file. 	By letter dated May 26, 	1987, 	the District informed
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Juranek 	that 	the 	envelope would be 	opened 	and 	"reviewed with 	the
appropriate persons." 	Juranek considered this 	a 	repudiation of 	a
written 	assurance he had 	received 	from the 	superintendent 	in 	1981
that 	the 	information 	in the 	sealed 	envelope would 	not 	be 	used
against him in the 	future. 	The 	second adverse action was 	a
May 	15 	memorandum which 	informed Juranek that 	he 	had been
reassigned 	from his 	position at Longden to 	a position as 	a 	roving
substitute.
Past 	Practice 	On 	Retirement/Resignation 	Buy-outs
It 	is 	undisputed that 	for many years 	the 	District had a
practice 	of 	offering 	incentives 	to particular 	employees 	to 	induce
them to 	resign or retire. 	There was 	testimony that 	such offers
were 	usually precipitated by 	the 	District's 	view that 	the 	teacher
was 	ineffective. 	In no 	instance was 	CTA notified 	in advance of
the 	District's 	interest 	in pursuing any particular buy-out. 	In
five 	out of 	twelve 	examples 	mentioned in the record, 	CTA became
involved 	in 	subsequent 	negotiations 	(usually upon the 	request 	of
the employee), 	but in each instance the District had originally
contacted the 	employees 	directly, 	without notice to CTA.
There 	is 	no 	evidence that CTA ever 	sought to negotiate a
policy 	of 	general 	application with 	regard 	to 	such buy-outs.
Moreover, 	prior to the filing of the charges 	in this 	case, 	there
is 	no 	evidence 	that CTA ever protested the 	District's 	practice 	of
negotiating buy-outs 	directly with 	the 	affected 	employee. 	Where
CTA did 	get 	involved 	after 	initial 	contacts 	between the 	District
and 	the 	employee, 	testimony revealed that 	the CTA representatives
55

merely assisted 	in discussions 	that continued to be, 	in essence,
between the 	employee and the 	District.
The parties' 	collective bargaining agreement 	in effect 	at
the 	time 	in question 	is 	silent 	on the 	subject 	of 	severance pay or
other 	severance benefits. 	The 	last 	contract that mentioned 	these
subjects, 	which was effective 	1978-1980, 	contained the following
two provisions:
10. 	The District 	shall 	continue to provide
an opportunity 	for 	eligible unit 	members 	to
participate 	in an 	early 	retirement plan.
11. 	Health and welfare benefits provided 	in
the Agreement 	shall 	be provided 	in the
District's Auxiliary 	Services 	Contract.
The 	record does 	not 	indicate what 	early 	retirement 	or 	severance
benefits 	were 	generally 	available 	to 	employees 	after 	the
expiration of the 	1978-1980 	contract. 	There are, 	however,
references 	in the record to 	the 	availability of 	an early
retirement plan in later years, 	but 	its terms 	are not revealed.
Article XII 	of the current contract, 	effective 	1986-1989,
contains 	a 	"zipper clause," 	which has 	the 	effect of 	allowing
either party to avoid 	(during the 	term of 	the 	agreement) 	further
negotiations 	on matters 	established by 	either 	contract 	or past
practice.1 (Los 	Rios Community College District 	(1988) 	PERB
1Article XII of the parties' 	agreement states, 	in pertinent
part:
. 	.' 	. the Association and District express,
waive, 	and relinquish the right to meet and
negotiate with 	respect 	to 	any 	subject 	or
matter whether 	referred 	to 	or 	covered 	in 	this
Agreement or not, 	even though each 	subject or
matter may not 	have 	been within 	the 	knowledge
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Decision No. 	684, 	p. 	13.) 	The clause specifically states that it
does 	not 	constitute 	a waiver of CTA's 	right 	to bargain a 	change
in past practice, 	though this would be the 	case 	even in the
absence of 	such 	language. 	(See Los 	Rios 	Community College
District, 	supra, 	p. 	14; 	Los Angeles Community College District
-
(1982) 	PERB Decision No. 	252.)
DISCUSSION
Retaliation
Relying on Lake Elsinore School District, 	supra. 	PERB
Decision No. 	646, 	the ALJ dismissed the retaliation allegations
for 	lack of 	jurisdiction. 	The 	1986-1989 	agreement 	contains 	a
grievance 	procedure which 	culminates 	in binding 	arbitration
(Article III). 	Article III, 	section 2 states:
The Association may 	file 	a 	grievance 	on 	its
own behalf with 	respect 	to 	an alleged
violation, misinterpretation, misapplication,
or nonapplication of 	a provision of 	this
Agreement which provides 	for Association
rights.
Article X, 	which 	contains 	a 	reprisal prohibition that mirrors 	the
language of 	EERA, 	is 	entitled 	"Association Rights." 	Concluding
or 	contemplation of 	either or both the
District or the 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.
The parties 	agree that this Article 	is 	not
intended as 	either a 	general 	or 	specific
waiver of 	the bargaining rights 	that the
Association might have under the 	Rodda Act 	as
a 	result of 	the 	District's 	attempt to 	change
any past 	benefit 	or practice 	not 	contained 	in
this Agreement which 	is within the mandatory
scope of bargaining of 	the Act.
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that 	CTA had 	standing 	to 	file 	a 	grievance 	concerning 	the 	alleged
retaliation against Mohr and Juranek, 	the ALJ determined that 	she
had no 	choice but 	to dismiss 	the 	complaint as 	to 	those
allegations. 	She went on to address 	the merits 	of 	the
allegations 	anyway, 	concluding that CTA failed to 	establish 	a
prima 	facie 	case because 	it 	failed 	to 	show that Mohr or Juranek
engaged 	in protected 	activity 	that 	could 	have precipitated 	the
adverse actions.
CTA excepts 	to 	the ALJ's 	dismissal 	of 	the 	retaliation
allegations, 	claiming that, 	notwithstanding Article X's title,
its 	reprisal prohibition concerns 	only 	individual 	unit 	members'
rights. 	Consequently, 	CTA argues, 	since it could not file a
grievance 	itself, 	deferral to arbitration is 	improper. 	CTA also
excepts 	to 	the ALJ's 	conclusion that 	no protected 	activity was
shown.
While 	it 	is 	true that the reprisal provision of Article X
refers 	to the rights 	of unit members, 	we affirm the ALJ's 	finding
that 	the 	retaliation allegations 	should be deferred 	to
arbitration based on Lake Elsinore 	School 	District, 	supra.
Though CTA's 	construction of 	the 	interaction of Articles 	III 	and
X is 	not unreasonable, 	we find the ALJ's 	construction, 	which
relies 	on the plain language of 	the title of Article X, 	to be
more plausible. 	While there 	is 	some ambiguity in the way the two
articles 	interact, 	there 	is 	no evidence that CTA's 	construction
is 	the one 	intended by the parties. 	In fact, 	it 	is unlikely that
CTA would 	have 	intended 	a 	construction which minimized 	its 	right
8

to 	file 	grievances. 	We 	conclude 	that 	the 	retaliation allegations
must 	be 	deferred 	to binding 	arbitration.2
After concluding that 	there was 	no 	jurisdiction, 	the ALJ
stated that 	it would be unnecessary, 	and perhaps 	inappropriate,
to reach the merits of the allegations. 	Nevertheless, 	she
preceded 	to 	find 	that 	CTA had 	failed 	to 	demonstrate 	protected
activity 	on the part of 	Mohr and Juranek. 	We 	find 	it unnecessary
to 	reach 	the merits 	after 	concluding that 	the 	allegations 	must 	be
deferred to 	arbitration, 	and we decline to do 	so.
By-passing- -
CTA argued during the hearing that, 	in meeting with Mohr and
Juranek individually, 	the District 	sought to by-pass 	the
contractual 	disciplinary procedures. 	The ALJ 	instead 	viewed 	the
issue 	as 	whether the 	District by-passed CTA by 	negotiating with
Mohr 	and 	Juranek 	over 	severance 	pay 	options 	not 	normally 	afforded
to 	other 	employees. 	However, 	the ALJ concluded that 	the result
in 	the 	case 	is 	not 	affected by which characterization 	is 	chosen.
We 	agree. 	However, 	we will 	analyze the 	case using the 	latter
characterization, 	which 	is 	more 	consistent with the charges 	and
complaints.
The ALJ 	found that 	the 	District's 	direct dealing with Mohr
and Juranek, 	without notice to CTA, 	constituted 	illegal by-
22 For 	the reasons 	stated 	in his 	dissent 	in Eureka City 	School
District 	(1988) 	PERB Decision No. 	702, 	at pp. 	9-14, 	Member Craib
would 	condition deferral 	on the willingness 	of 	the District 	to
waive procedural defenses. 	However, 	the majority of the panel,
consistent with the majority opinion in Eureka. 	places 	no 	such
condition on deferral 	of 	this 	case 	to binding arbitration.
99

passing of 	an exclusive representative. 	This 	conduct was 	found
to violate section 3543.5, 	subdivisions 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA). 	As 	the ALJ pointed
out, 	the 	Board will 	find unlawful 	by-passing where 	the 	employer
deals 	directly with 	employees 	and 	seeks 	to 	create 	a 	new policy of
general 	application or 	seeks 	a waiver or modification of 	existing
policy applicable 	to those 	employees. 	(Walnut Valley Unified
School District 	(1981) 	PERB Decision No. 	160, pp. 	4-6; 	Lake
Elsinore School District 	(1986) 	PERB Decision No. 	563, 	p. 	3.) 	In
the ALJ's 	estimation, 	a violation must be 	found because the
record clearly 	shows 	that the District, 	without notice to CTA,
offered Mohr 	and 	Juranek 	incentives 	to 	retire 	or 	resign that were
not available to most employees.
The ALJ 	found no merit 	in the 	District's past practice
defense. 	First, 	the ALJ noted that 	in seven of the twelve
examples 	in the 	record, 	CTA had no 	knowledge whatsoever of 	the
District's 	negotiations with 	individual 	employees. 	On the 	other
five occasions, 	CTA participated once 	it was 	informed of the
3EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5, 	subdivisions 	(b) 	and 	(c)
provide as 	follows:
It 	shall be unlawful 	for a public 	school
employer to:
(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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impending negotiations 	(presumably by the employees, 	as 	it 	is
undisputed that the District never gave CTA notice of 	any 	sort).
The ALJ 	stated 	that 	CTA 	certainly 	could 	not have waived 	the 	right
to 	negotiate where 	it had no notice, 	nor did it waive the right
to 	negotiate 	future 	acts 	of 	by-passing by participating 	on the
five 	occasions where 	it got wind of 	the District's 	intent. 	In
short, 	the ALJ viewed each 	set of 	individual negotiations 	as 	a
distinct 	act of by-passing, 	to which CTA retained the 	right 	to
object, 	as it saw fit.
Next., 	the ALJ rejected the District's 	argument that the
question of 	benefits 	for those who resign or retire 	is 	not within
the 	scope 	of 	negotiations 	because 	the benefits will be 	received
by 	those who are 	no 	longer 	employees. 	The ALJ 	explained that
both private 	sector 	and 	PERB precedent 	exempt 	from coverage 	only
those 	already retired or 	separated 	from 	employment. 	(Allied
Chemical & Alkali Workers v. 	Pittsburgh Plate Glass Co. 	(1971)
404 	U.S. 	157 	[78 LRRM 2974] 	(rights and benefits of former
employees 	and retirees 	nonnegotiable); 	Hacienda La Puente Unified
School District 	(1988) 	PERB Decision No. 	685, 	p. 	13 	(former
employees 	have 	no 	standing to 	invoke 	the protection of 	the
EERA).) 	Future benefits 	of those 	still 	employed are
unquestionably within the 	scope 	of 	representation. 	(Pittsburgh
Plate Glass Co.. 	supra: 	Mt. 	Diablo Unified School District 	(1983)
PERB Decision No. 	373, 	p. 	41 	(severance pay within the 	scope of
representation); 	Jefferson School District 	(1980) 	PERB Decision
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No. 	133, 	pp. 	46-48 	(future retirement benefits 	for current
employees 	negotiable).)
In excepting to the ALJ's 	finding of 	unlawful 	by-passing,
the District puts 	forth three arguments. 	First, 	the District
asserts 	that 	the ALJ 	ignored the 	fact 	that 	there was 	a 	long-
standing practice 	(of which CTA was 	aware) 	of 	negotiating buy-
outs directly with employees. 	Consequently, 	the District 	states,
it 	had the 	right 	to 	continue 	to 	act 	in accordance with that
practice 	until 	CTA demanded 	to 	bargain 	and 	they 	reached 	agreement
to 	change the practice. 	Second, 	the District asserts 	that
(assuming the 	allegation 	is 	one 	of 	by-passing the 	contractual
disciplinary procedures) 	discipline 	of 	certificated 	employees 	is
governed 	exclusively by the Education Code and 	is, 	therefore,
non-negotiable. 	Third, 	the District repeats 	the argument made at
hearing that benefits 	to be received 	in the 	future by 	a 	non-
employee 	are 	not 	negotiable.
We 	believe 	the ALJ was 	correct 	in 	finding that 	neither 	the
holding in Hacienda La Puente Unified School District, 	supraf
concerning the 	standing of 	former 	employees, 	nor private 	sector
precedent makes 	future, 	post-employment, 	benefits nonnegotiable
vis-a-vis 	present 	employees.4 There 	is 	simply no 	authority 	for
the proposition that 	an employer does 	not have to 	negotiate
4In 	San Leandro 	Unified 	School 	District 	(1984) 	PERB 	Decision
No. 	450, 	the Board held that neither retired employees 	nor a
retiree 	organization has 	standing 	to 	file 	an unfair practice
charge.
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retirement 	or 	severance 	benefits 	because 	they will 	not 	be
received until 	after 	the 	employment 	relationship 	is 	severed.
The 	District's 	supersession argument 	must 	also 	be 	rejected.
EERA section 3543.2, 	subdivision 	(b) 	specifically makes
discipline 	(other than dismissal) 	of 	certificated 	employees
negotiable, 	notwithstanding Education Code 	section 44944. 	In any
event, 	this 	exception pertains 	only to the theory that the
District 	used 	the buy-out 	negotiations 	to 	avoid 	adhering 	to
contractual 	disciplinary procedures. 	As 	noted above, 	we do 	not
subscribe to that theory of the case; 	therefore, 	it is
unnecessary 	to 	further address 	this 	exception.
Lastly, 	we turn to the District's 	argument that the ALJ
failed to 	attach 	significance 	to 	the 	fact 	that 	the 	District 	had 	a
long-standing practice 	of 	negotiating 	buy-outs 	with 	individual
employees. 	We 	find that this 	exception has merit. 	It 	is
axiomatic 	that an employer may, 	even where 	there has 	been a
demand to bargain, 	continue 	to act 	consistent with 	existing
policy until 	agreement 	is 	reached 	to 	alter that policy.5 The
issue 	thus 	becomes: 	did the District have 	an established past
practice with 	regard to 	buy-outs 	and were 	the 	District's 	actions
consistent with 	that 	policy?
The 	twelve 	examples 	of 	buy-outs 	introduced 	into 	the 	record
span a period 	from 	1981 	to 	1988 	(the 	two buy-outs 	at 	issue here
occurred 	in 	1987). 	Of the 	five times when CTA was 	involved, 	two
5As discussed above, 	the 	"zipper clause" 	in the parties'
agreement would have 	allowed the 	District 	to reject, 	for the 	term
of 	the agreement, 	a demand to bargain a change in past practice.
13

were in 	1982, 	two were in 	1985 	and one was 	in 	1986. 	Therefore,
the 	District 	had been engaging 	in 	such 	individual 	negotiations
for at 	least 	six years 	before 	the 	unfair practice 	charges were
filed, 	and CTA was 	aware of this practice 	since 	1982 	at the
latest. 	At no time prior to the 	filing of 	charges 	did CTA make 	a
bargaining demand 	or otherwise protest 	the 	District's 	actions.
Given these 	facts, 	we conclude that a past practice of 	engaging
in 	individual 	negotiations 	over 	severance benefits 	was
established 	and 	that 	CTA acquiesced 	to 	the 	development 	of 	that
practice.
When CTA was 	asked by 	a particular 	employee 	for 	assistance
in negotiating with the 	District, 	CTA provided that 	assistance.
There 	is 	no 	evidence that the District 	ever opposed 	or
discouraged CTA 	involvement 	if 	the 	employee 	desired 	it.
Moreover, 	there was 	undisputed testimony that, 	even where CTA was
involved, 	the negotiations were 	still 	essentially between the
District 	and the 	individual, 	with 	the CTA representative merely
present to offer assistance or advice 	if asked. 	Thus, 	we
disagree with 	the ALJ's 	conclusion that 	CTA did 	negotiate 	over
buy-outs whenever 	it had notice 	of 	them. 	Had CTA demanded to
bargain or had otherwise protested the District's 	actions, 	and
simply waited until 	1987 	to 	fully 	enforce 	its 	bargaining 	rights
by 	filing the unfair practice 	charges, 	we might well 	have 	reached
a different result 	in this 	case. 	However, 	we 	find that the
evidence does 	not 	support 	such a version of 	events.
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Having 	found 	that 	a past practice was 	established with
regard to buy-out 	negotiations with 	individual 	employees, 	we 	now
examine whether the 	District 	acted 	in accordance with 	that
practice. 	The ALJ 	concluded 	that 	the District's 	actions 	were
deviations 	from 	established policy 	because 	it was 	undisputed 	that
the 	terms 	offered Mohr 	and 	Juranek were 	not 	afforded 	to 	the
average 	employee who 	retired or resigned. 	However, 	we believe
the 	policy 	at 	issue 	should be more 	narrowly defined to 	include
only those 	situations 	involving 	"buy-outs," 	which would 	not
include 	the 	average 	employee who resigned or retired. 	The
circumstances 	underlying the 	two types 	of 	situations 	are markedly
different 	and 	logically would 	involve 	distinct policy
considerations.
The 	record 	shows 	that, 	whenever the 	District desired 	to have
someone 	leave its 	employ before normal retirement age, 	it offered
some 	combination of auxiliary 	service 	contracts, 	continuation of
fringe 	benefits 	or 	cash 	in 	exchange 	for 	early 	retirement 	or
resignation. 	With this 	as 	the definition of the policy at 	issue,
it 	is 	clear that the 	terms 	offered Mohr and Juranek were
consistent with 	that policy.
In 	sum, 	we 	find that the 	evidence 	shows 	that a past practice
developed whereby 	the 	District would 	engage 	in direct
negotiations 	with 	individual 	employees 	when the 	District wished
to 	"buy out" 	that 	employee 	through 	either early retirement 	or
resignation. 	Further, 	we 	find that CTA acquiesced to the
development of 	this practice. 	As 	the terms 	offered to Mohr and
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Juranek were 	consistent with that practice, 	the 	District
committed 	no 	violation.
ORDER
Based 	on the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	the complaints 	in Case Nos. 	LA-CE-2628 and LA-CE-2662 	are
hereby 	DISMISSED.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
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