Klamath-Trinity Joint Unified School District (PERB 1003E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KLAMATH-TRINITY 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
KLAMATH-TRINITY 	JOINT
UNIFIED 	SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-1473
PERB Decision No. 	1003
June 24, 	1993
Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for Klamath-Trinity Teachers Association, 	CTA/NEA;
Kronick, 	Moskovitz, 	Tiedemann & Girard by John L. 	Bukey,
Attorney, 	for Klamath-Trinity Joint Unified School 	District.
Before Blair, 	Chair; 	Hesse and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed by the
Klamath-Trinity Joint Unified School 	District 	(District) 	to 	the
proposed decision 	(attached hereto), 	of a PERB administrative 	law
judge 	(ALJ). 	In the proposed decision, 	the ALJ found that 	the
District violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA)1 when it 	refused to
EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
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provide 	funding 	for 	educational 	supplies 	to 	teachers 	as 	provided
for in the parties 	collective bargaining agreement 	(CBA).
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
The 	Board has 	carefully 	reviewed 	the 	entire 	record,
including the proposed decision, 	transcript, 	exceptions and
response, 	and 	finding 	the ALJ's 	findings 	of 	fact 	and 	conclusions
of 	law free 	from prejudicial 	error, 	adopt 	them as 	the decision of
the 	Board 	itself.
DISCUSSION
On appeal, 	the District argues 	that 	the ALJ erred in
interpreting the parties' 	CBA. 	It 	is 	the District's position
that 	PERB 	is 	without 	authority 	to 	interpret 	contractual
agreements 	and 	that 	these matters may only be handled by a 	court
or an arbitrator.
The Board finds 	the District's argument without merit. 	In
Grant 	Joint Union High School 	District 	(1982) 	PERB Decision
No. 	196, 	the Board, 	after reviewing section 3541.5(b) 	of EERA,
determined 	that 	it 	has 	the 	authority 	to 	resolve 	an unfair
practice 	charge 	even 	if 	it must 	interpret 	the 	terms 	of 	the 	CBA to
do 	so. 	In this 	case, 	the ALJ reviewed the 	CBA and determined
that 	the District 	is 	liable 	to pay 	$75.00 	per month per student
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for educational 	supplies under the 	CBA when the 	ratio of 	teachers
to 	students 	is 	exceeded, 	no matter how short 	or long 	the 	duration
of 	the 	time period. 	The Board supports 	the ALJ's 	interpretation
of 	the CBA and will 	not 	disturb his 	determination.
ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record in this 	case, 	it has been found that
the 	Klamath-Trinity Joint 	Unified 	School 	District 	(District)
violated the Educational 	Employment Relations Act 	(EERA or Act),
Government Code section 3543.5(a), 	(b) 	and 	(c).
Pursuant to EERA section 3541.5(c), 	it 	is hereby ORDERED
that 	the District, 	its governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally modifying 	section 	711 	of 	the
collective bargaining agreement 	regarding 	the payment 	of 	$75.00
per month per 	student 	over 	the 	specified 	ratios;
2. 	Denying 	the 	Klamath-Trinity Teachers Association,
CTA/NEA rights guaranteed to 	it by the Act; 	and
3. 	Denying 	its 	employees 	the 	right 	to be 	represented
by 	their 	chosen 	representative.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE ACT.
1. 	Make the involved teachers whole, 	to the extent
that 	is 	consistent with this decision, 	with regard to supplying
the materials 	requested 	in 	their Outside 	Supply Requisitions.
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2. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no longer subject 	to reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	employees 	customarily are
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
ensure that 	the Notice is not 	reduced in size, 	altered, 	defaced
or 	covered with any other material.
3. 	Make written notification of 	the actions 	taken to
comply with 	this 	Order to 	the 	San 	Francisco Regional 	Director 	of
the 	Public 	Employment 	Relations 	Board 	in accord with 	the
director's 	instructions.
Chair Blair and Member Hesse 	joined 	in this 	Decision.
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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. 	SF-CE-1473,
Klamath-Trinity Teachers Association, 	CTA/NEA v. 	Klamath-Trinity
Joint Unified School 	District, 	in which all 	parties 	had the 	right
to participate, 	it has been found that 	the Klamath-Trinity Joint
Unified School 	District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA or Act), 	Government Code section
3543.5(a), 	(b) 	and 	(c).
As a 	result 	of 	this 	conduct, 	we have been ordered to post
this 	notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Unilaterally modifying section 	711 	of 	the
collective 	bargaining 	agreement 	regarding 	the payment 	of 	$75.00
per month per student 	over the 	specified ratios;
2. 	Denying 	the 	Klamath-Trinity Teachers Association,
CTA/NEA rights guaranteed to it by the Act; 	and
3. 	Denying 	its 	employees 	the 	right 	to be 	represented
by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE ACT.
1. 	Make the involved teachers whole, 	to the extent
that 	is 	consistent with this decision, 	with regard to supplying
the materials 	requested 	in 	their Outside 	Supply Requisitions.
Dated: 	KLAMATH-TRINITY JOINT UNIFIED
SCHOOL 	DISTRICT
By:. Authorized 	Agent
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
KLAMATH-TRINITY 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
KLAMATH-TRINITY 	JOINT
UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-1473
PROPOSED 	DECISION
(5/8/92)
Appearances: 	California Teachers Association, 	by Ramon E.
Romero, 	Attorney, 	for the Klamath-Trinity Teachers Association,
CTA/NEA; 	Kronick, 	Moskovitz, 	Tiedemann & Girard, 	by John L.
Bukey, 	Attorney, 	for the Klamath-Trinity Joint Unified 	School
District.
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On April 	9, 	1991, 	the Klamath-Trinity Teachers Association,
CTA/NEA 	(KTTA, 	Charging Party or Association), 	filed an unfair
practice 	charge with 	the 	Public 	Employment 	Relations 	Board 	(Board
or PERB) 	against 	the 	Klamath-Trinity Joint Unified School
District 	(Respondent or District). 	The charge alleged violations
of subdivisions 	(a), 	(b), 	(c) 	and 	(e) 	of section 3543.5 of the
Educational Employment Relations Act 	(EERA or Act).1
The 	EERA 	is 	codified at Government Code 	section 	3540 	et
seq. 	All 	section references, 	unless otherwise noted, 	are to the
Government Code. 	Subdivisions 	(a), 	(b), 	(c) and (e) 	of section
3543.5 	state, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
(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.
(e) 	Refuse to participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
On June 	24, 	1991, 	the Charging Party filed an amended charge
with 	the PERB alleging violations 	of the 	same 	subdivisions. 	On
July 24, 	1991, 	the Office of the General Counsel of PERB, 	after
an investigation of 	the charge, 	issued a complaint alleging
violations of only subdivisions 	(a), 	(b) 	and 	(c).2 On August 	12,
1991, 	the Respondent answered the complaint denying all 	material
allegations 	and 	raising affirmative defenses.
An informal conference was held on October 	10, 	1991, 	to
explore voluntary 	settlement possibilities. 	No 	settlement was
reached.
A 	formal 	hearing was 	held by the 	undersigned on November 	19,
1991. 	Each 	side 	filed post-hearing briefs. 	The 	last brief was
2The complaint 	inadvertently, 	in paragraph 	12, 	charged the
District with a violation of 	subdivision 	(e). 	However, 	the text
of 	the violation made 	it very clear that the reference to 	(e) 	was
a typographical 	error. 	There were no allegations, 	nor any
evidence proferred, 	regarding any refusal 	to participate 	in the
impasse procedure.
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filed on March 2, 	1992, 	and at that time, 	the case was 	submitted
for 	a proposed decision.
INTRODUCTION
The 	parties 	had 	a 	collective 	bargaining agreement 	(CBA)
section that 	required 	the 	District 	to 	maintain 	specified
teacher/student ratios. 	If 	such ratios were not maintained, 	the
District was 	obligated to provide 	$75 	in educational 	supplies 	per
overage pupil per month. 	A dispute arose as 	to whether 	(1) 	the
District was 	entitled to 	a 	forty-five day grace period, 	and 	(2)
the 	addition of 	a 	substitute/temporary 	certified 	teacher 	to 	the
kindergarten 	staff 	impacted 	the 	ratio 	requirements.
JURISDICTION
The parties 	stipulated, 	and it is therefore found, 	that the
Charging 	Party 	is 	an exclusive 	representative 	and 	an employee
organization and the 	Respondent 	is 	a public 	school 	employer
within the meaning of 	the Act.
MOTION OF 	PARTIAL WITHDRAWAL
Charging Party's 	attorney, 	at the onset of the 	formal
hearing, 	moved for dismissal of that part of 	the charge and
complaint 	that 	related to 	an alleged unilateral 	change 	in the
amount 	employees would pay 	in co-payments 	for prescription drugs.
He was 	referring 	specifically to paragraphs 	four through nine 	of
the complaint. 	The Respondent had no objection, 	the motion was
granted and paragraphs 	four through nine 	of 	the 	complaint were,
and 	are 	hereby DISMISSED.
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FINDINGS 	OF 	FACT
The 	parties 	1987-90 	CBA 	contains 	the 	following provision
concerning class 	size:
Article 	700
701 	Class 	size
710 	The 	student teacher ratios 	for 	1987-90
will 	be 	1:28 	at 	the 	elementary 	level 	and 	1:25
at 	the high 	school with physical 	education,
chorus 	and band 	classes 	exempt 	and 	capped at
35.
711 	Should 	any 	class 	exceed the 	appropriate
ratio 	to 	student per one 	classroom teacher,
the employer, 	at the request of the teacher,
and/or the Association, 	shall meet with the
teacher and the Association to discuss 	the
reasons 	and attempt 	to bring the 	class 	to 	the
ratio. 	For the purposes of this article,
class 	counts 	shall 	be 	from the beginning of
the 	semester until October 	15, 	and 	from the
beginning 	of 	the 	second 	semester until
February 	15. 	Teachers who wish to utilize
this procedure must do 	so between the dates
for the 	semester to which they apply. 	After
the above 	stated dates, 	the procedures 	are
not applicable unless 	the district agrees 	to
hear the teacher. 	Should the Employer be
unable to maintain the ratios 	as 	set 	forth
above 	for 	some unforeseen reason, 	the
Employer 	shall pay the 	teacher $75.00 per
month per pupil 	for those 	exceeding the 	class
size. 	The money 	shall be used 	for
educational supplies, 	equipment, 	training, or
services.
Attempts 	to 	deal with 	student-teacher 	classroom ratio 	have
been incorporated 	into previous 	CBAs, 	but the 	1987-90 	agreement
was 	the 	first 	to 	include the 	$75 	per 	student per month 	clause.
The 	KTTA 	originally proposed 	that 	the 	$75 	go 	directly 	to 	the
involved teacher, 	but the District wanted the benefit of 	the
money 	to 	go to 	the 	students. 	The parties 	eventually agreed that
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the money would go 	to purchase 	educational 	supplies. 	According
to KTTA President Larry Staton 	(Staton), 	who was a member of the
bargaining team 	in those negotiations, 	the 	rationale behind the
agreement was 	as 	follows:
. 	. 	. 	we knew that there were going to be
times when the District 	-- when it was 	not
educationally 	soun
combinations,3
that we would hav' d 	to 	create 	unbalanced
and that there would be times
e 	to 	ask teachers 	to 	take 	29
or 	30 	or 31 	students 	just to maintain a good
program and without 	any disruption to 	the
classroom or the teacher or the parents, 	and
that 	the 	$75 	in that 	situation would be 	a
better way to handle 	it. 	And that was 	our
intent.
Kindergarten 	Student 	Classroom 	Overages
In the 	first month of the 	1990-91 	school year, 	the classes
of 	both 	kindergarten teachers 	at 	Hoopa 	Elementary 	School 	exceeded
the 	1:28 	ratio. 	Jerry Nobles 	(Nobles) 	began the year with 	26-27
students, 	but class 	enrollment went up to 	32 	in September and
continued 	at 	that 	level 	for approximately 	3-4 	months. 	By 	early
1991, 	his 	class 	size had dropped to approximately 28-29. 	Jean
Thomas' 	(Thomas) 	class contained 32 	students until January 	1991,
decreasing to 	31 	students until April 	or May, 	when it dropped to
30 	for the remainder of the 	school year.
Shortly after the beginning of the 	school year, 	Nobles 	and
Thomas met, 	on several occasions with Principal Todd Clark
(Clark) 	to discuss possible solutions. 	Clark told the teachers
that 	the 	situation was 	not 	something he 	could 	remedy himself 	and
3Staton defined 	"unbalanced 	combinations" 	as 	any 	class 	that
had 	two 	grades 	in one 	classroom and one 	of 	those 	grades
constituted 	30 percent or 	less 	of the total number of 	students.
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suggested that they 	see 	Superintendent Ted Toreson 	(Toreson).
Clark had previously discussed 	the 	matter with 	Toreson.
Toreson told 	the 	teachers 	that he would 	look 	into 	obtaining
an additional 	teacher and a portable 	classroom. 	He 	subsequently
learned 	that 	a 	speedy 	acquisition of 	a 	classroom was 	not
possible. 	However, 	on September 27, 	1990, 	he hired Joan Quant
(J. 	Quant) 	to work in the kindergarten classrooms with Nobles 	and
Thomas. 	She was 	initially classified as 	a 	short-term temporary
teacher 	and paid 	at 	the 	substitute 	teacher 	rate 	even though 	she
was 	not 	substituting for anyone. 	As 	a 	short-term
temporary/substitute 	teacher 	she was 	not a part 	of 	the 	KTTA
bargaining unit, 	although 	she was 	fully credentialed. 	She was
eventually 	reclassified 	or hired 	as 	a 	probationary 	teacher 	and
was 	placed 	on 	the 	CBA 	certificated 	salary 	schedule when 	school
resumed after the Christmas 	holidays.
Decisions 	on how to use J. 	Quant 	in the classroom were 	left
to 	Nobles 	and Thomas. 	She did not have her own classroom during
the 	fall months, 	but used a 	small 	anteroom that 	connected the two
existing kindergarten classrooms. 	Nobles, 	Thomas and J. 	Quant
had 	several 	twenty 	to 	thirty minute meetings 	before 	and 	after
school 	each week to determine how best to divide their 	joint
responsibilities. 	J. 	Quant worked with some 	"at risk" 	students
in her anteroom, 	but also worked 	in both classrooms with the
general population as well. 	She 	spent roughly one-third of 	her
time in Nobles' 	classroom, 	one-third in Thomas' 	classroom and
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one-third 	in the 	anteroom where 	she 	established 	a 	rotational
"pull out" program.
After January 	1991, 	J. 	Quant was able to use a portable room
the 	District 	leased 	from the 	Hoopa 	Indian tribe. 	It was 	on
property 	abutting 	the 	elementary 	school 	campus. 	The District 	had
remodeled 	it over the Christmas 	holidays. 	Although 	she 	now had
her own classroom, 	she never had her own 	separate group 	of
students. 	All the 	students 	she dealt with were on the class
lists 	of 	either Nobles 	or Thomas. 	Clark 	stated that 	it would
have been possible 	for the 	District 	to 	separate 	the kindergarten
children 	into three 	separate groups 	once the portable became
operational, 	but that he declined to do 	so 	for educational
reasons.
Nobles 	and 	Thomas 	individually 	retained primary 	and 	ultimate
responsibility 	for all of 	the traditional 	teacher duties, 	such as
parent conferences, 	discipline, 	grading and report cards 	for all
of 	the 	kindergarten 	students 	for the 	entire 	1990-91 	school 	year.
These 	responsibilities were 	not discharged 	in a partnership
manner with J. 	Quant.
On November 	13, 	1990, 	Nobles 	submitted two Outside Supply
Requisitions 	(OSRs) 	to Clark for 	funds under 	section 711 	of 	the
CBA. 	Prior to this 	submission, 	he discussed the matter with
Clark when he 	obtained the 	blank OSR forms 	from him. 	He 	based
his 	request 	on the 	student overage 	for September and October of
1990. 	He was 	attempting to obtain additional 	supplies 	to assist
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him 	in teaching 	the 	students 	in his 	overpopulated 	classroom. 	The
OSRs 	totaled 	approximately 	$475.4
Subsequent to the submission of his OSRs, 	Nobles had several
discussions 	with 	Clark with 	regard 	to when 	the 	OSR materials
would be 	forthcoming. 	He was 	told each time 	that 	the 	District
office was processing the matter. 	The 	supplies were never
provided.
Fourth 	Grade 	Student 	Classroom 	Overages
In the 	first month of the 	1990-91 	school year, 	the two
fourth grade 	classes 	at 	Hoopa 	Elementary 	School 	exceeded 	the 	1:28
CBA ratio. 	Belva Hanger's 	(Hanger) 	class had 29 	students 	and Ina
Kay Melvin's 	(Melvin) 	class 	size rose to 29 	sometime in late
September or 	early October. 	Hanger 	spoke 	to Clark about 	the
matter and he 	told her that 	the 	District would be 	creating a
"combination" 	class 	of 	fourth and 	fifth grade 	students. 	At the
end of 	September 	1990, 	three 	fourth grade 	students were
transferred from Hanger to Bill Quant's 	(B. 	Quant) 	fifth grade
class. 	At the 	same time, 	three 	students were transferred from
Melvin's class to B. 	Quant's class.
Both 	Melvin and 	Hanger 	submitted 	OSRs 	requesting 	supplies
based on 	student overages 	in September prior to the 	transfer.
Neither of 	them received 	any 	supplies 	based on 	such OSRs.
4Thomas 	did not 	submit 	any OSRs 	for her 	classroom 	student
overages.
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KTTA Requests 	for Class 	Lists
On October 	15, 	1990, 	KTTA President Larry Staton wrote a
letter to 	various 	District 	school 	principals 	requesting 	class
lists 	in order to determine whether the 	District was 	in
compliance with CBA section 	710. 	He was 	unable to obtain the
requested 	high 	school 	class 	lists 	and 	eventually 	filed 	an unfair
practice charge with PERB on December 	11, 	1991. 	The case,
SF-CE-1443, 	was withdrawn on March 12, 	1991, 	when the District
agreed 	to provide 	the 	requested class 	lists.
ISSUE
When the 	District 	failed 	to provide 	the 	supplies 	requested
in the 	subject Outside 	Supply 	Requisition 	forms 	did 	it
unilaterally modify the collective bargaining agreement, 	and
therefore 	violate 	section 	3543.5?
CONCLUSIONS 	OF 	LAW
A unilateral 	change 	in 	terms 	and 	conditions 	of 	employment
within the 	scope of 	representation is 	a per 	se refusal 	to
negotiate. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].)
PERB has 	long recognized this principle. 	(San Mateo Community
College District 	(1979) 	PERB Decision No. 	94.)
Under 	section 	3543.5(c) 	an employer 	is 	obligated to meet and
negotiate 	in good 	faith with 	a 	recognized 	employee 	organization
about matters within the 	scope of representation.
To 	show that a unilateral 	change has 	occurred, 	the charging
party must 	first 	establish the 	"status 	quo." 	This 	may be done by
reference to: 	(1) 	the parties' 	CBA; 	or 	(2) 	a showing of the
99

employer's: 	(a) 	pattern of activity, 	or 	(b) 	past practice with
regard 	to 	the 	negotiable 	subject 	at 	issue. 	The 	charging party
must then 	show that the 	employer has, 	without 	first providing an
opportunity to negotiate, 	deviated 	from that CBA provision,
pattern of 	activity or past practice.
Section 	3543.2 	sets 	forth the Act's 	scope of 	representation.
It is, 	in pertinent part, 	as follows:
(a) 	The 	scope of representation shall be
limited to matters relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
of 	employment. 	"Terms 	and conditions 	of
employment" mean . 	. 	. class size, 	. 	. 	.
Generalized 	Effect 	or 	Continuing 	Impact
Respondent 	contends 	that this 	case 	concerns 	no more 	than two
differences 	of 	opinion as 	to 	the proper 	interpretation of 	CBA
Article 	700. 	It contends 	that Grant Joint Union High 	School
District 	(1982) 	PERB Decision No. 	196 holds that employer's
actions 	that 	amount to no more 	than contractual 	breaches 	are 	not
violations 	of the Act.
However, 	that decision also held that even a contractual
breach 	is 	actionable 	if 	it has 	a 	"generalized effect or
continuing 	impact" 	upon the 	terms 	and conditions 	of 	employment 	of
bargaining unit members. 	In this 	case we have a decision by the
District 	that 	certain 	time 	lines 	and 	actions 	properly deprive
specified 	teachers 	from obtaining 	additional 	educational
supplies. 	That District decision affected at 	least 	four teachers
during the 	1990-91 	school 	year and has 	the potential 	to affect
more 	in the ensuing years. 	There 	is 	no doubt that the 	subject
10

decision has 	a 	generalized 	effect 	and 	a 	continuing 	impact 	on 	the
terms 	and 	conditions 	of 	employment of 	bargaining unit members.
Does 	CBA 	Section 	711 	Provide the 	District 	a Grace 	Period?
The 	Respondent 	insists 	that 	the CBA provides 	the 	District a
grace period until October 	15 	and February 	15 	to make classroom
size adjustments 	and that prior to 	such dates 	it 	is 	not 	liable
for the 	$75 per 	student per month additional 	expense.
The 	language relied on by the Respondent 	is 	found 	in CBA
section 711, 	and is, 	in pertinent part, 	as follows:
. 	, 	. 	For the purposes of this article, 	class
counts 	shall be 	from the beginning of 	the
semester until October 	15, 	and from the
beginning 	of 	the 	second 	semester until
February 	15. 	Teachers who wish to utilize
this procedure must do 	so between the dates
for the 	semester to which they apply. 	After
the above 	stated dates, 	the procedures 	are
not 	applicable unless 	the district agrees 	to
hear the 	teacher. 	Should 	the 	employer be
unable to maintain the ratios 	as 	set 	forth
above 	for some unforeseen reason, 	the
Employer shall pay . 	. 	.
It 	contends 	that the 	scheme 	set 	forth by this 	language 	is
characterized by 	(1) 	teacher notification by October 	15 	or
February 	15, 	(2) 	District adjustment by the same date, 	and 	(3)
payment 	if unable to maintain the ratio after the 	two deadlines.
Therefore, 	it concludes, 	the District's 	"penalty" 	does not become
operative until 	it has had the 	forty-five days 	to adjust the
classroom 	overage 	problem.
The Charging Party, 	on the other hand, 	insists 	that the
September 	15 	and February 	15 	dates were put 	into the CBA to 	set
up a deadline or cut off date, 	after which the District would not
11

create combination classes because, 	by that time 	in the 	semester,
" . . . 	students would be attached to their teacher, 	. 	. 	. 	[and]
their classmates. 	. 	." 	It is KTTA's contention that it proposed
this 	$75 	per pupil per month 	language 	in order to provide 	an
alternative 	to 	the District 	to 	the use 	of 	"unbalanced"
combination classes, 	i.e., 	classes whose population had more than
a 70-30 split 	(see fn. 	3, 	p. 	5 ) , 	situations KTTA believes are
educationally unwise. 	Therefore, 	it argues, 	these cut off dates
should 	not be 	interpreted 	as 	creating 	a 	grace period.
As 	an additional argument, 	it cites 	the District's agreement
that 	a primary purpose 	for 	the 	supplemental 	educational 	supplies
is 	to 	enable 	an overloaded teacher to 	cope with those 	extra
students. 	The need for these 	supplies during the 	first 	six weeks
is 	no 	less 	than during the rest of 	the 	semester, 	and 	in many ways
greater, 	due 	to 	lack of established 	structure and routine. 	It
objects 	to any 	interpretation that 	suggests 	it 	agreed 	in
negotiations 	to 	a waiver of 	these additional 	supplies 	during
these crucial 	first 	few weeks.
A reading of 	CBA 	section 	711 	leads 	to a 	conclusion that 	once
a 	classroom population is 	over the prescribed ratio, 	the burden
is 	on the 	teacher and/or KTTA to bring 	it to the attention of 	the
District. 	However, 	the issue must be raised before October 	15 	or
February 	15 	or the 	teacher and KTTA lose the 	right 	to 	the 	$75 	in
supplies. 	There is nothing in this process 	that 	suggests 	that
the 	District 	is 	not 	liable 	for these 	additional 	monies 	from the
first day of the overage. 	Therefore, 	it is 	concluded that the
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District 	is 	liable 	for the 	supplies 	requested by 	specified
teachers 	from the beginning of 	the 	overages 	to 	such time 	as 	the
overages 	were 	cured.
Unbalanced 	Combination 	Classes
In late September 	1990, 	the District transferred 	six
students 	from two 	fourth grade 	classes 	to 	Bill 	Quant's 	fifth
grade 	class. 	It did this 	to 	solve a 	classroom overage problem in
the 	two 	fourth grade 	classes. 	There was 	considerable testimony
by 	some 	KTTA witnesses 	suggesting 	that 	the 	creation of 	this
unbalanced combination class was 	in violation of 	the 	spirit 	of
CBA section 711. 	However, 	these 	same witnesses admitted that
KTTA was 	unable 	to 	achieve 	CBA 	language 	that would place 	legal
restrictions 	on this 	type of 	District action. 	In the absence of
definitive CBA language there 	is 	no doubt that there 	is 	no
restriction on 	the 	District 	creating 	unbalanced 	combination
classes 	as 	a 	solution to 	the 	classroom overage problem.
Kindergarten 	Classroom 	Overage
There 	is 	no 	question that Nobles 	and Thomas 	had the ultimate
responsibility for all of 	the kindergarten children. 	If only
these two 	teachers 	are considered, 	there 	is 	no question that the
District was 	over the ratio and the 	$75 	payments 	should be made.
However, 	CBA section 	711 	discusses 	the 	consequences 	if any class
exceeds 	"the appropriate ratio to 	student per one 	classroom
teacher." 	Reading that language, 	in light of the testimony of
witnesses 	for both sides, 	it 	is 	clear that the parties were
attempting to place a 	limit 	on the workload of 	the 	individual
13

teachers. 	CBA section 711 was 	designed to 	limit the number of
student/teacher contacts, 	and therefore workload, 	by either 	(1)
moving 	students 	out of the 	classroom or 	(2) 	providing additional
educational 	supplies 	so as 	to permit the teacher to 	educate a
greater number of 	students 	without 	increasing his/her 	expended
effort.
The 	addition of 	Joan Quant 	to 	the 	kindergarten classrooms
effected the desired result. 	It 	lowered the number of
student/teacher contacts, 	and 	it did 	so within the parameters 	of
the CBA. 	The CBA spoke of the ratio between students 	and
teachers 	or classroom teachers. 	J. 	Quant was a fully
credentialed teacher. 	It 	is 	irrelevant whether she was 	a
substitute, 	temporary or probationary teacher, 	she was a
classroom teacher and that 	is what the CBA required. 	The 	fact
that 	she worked 	through Nobles 	and Thomas 	and did not 	have
primary 	or ultimate 	responsibility 	for any 	of 	the 	students 	is 	not
controlling. 	She met both the 	language requirement, 	i.e., 	she
was 	a 	(credentialed) 	teacher, 	and the intent of CBA section 711,
i.e., 	she 	lowered the number of 	student/teacher contacts 	required
of Nobles 	and Thomas.
It 	is 	therefore 	concluded that the employment of J. 	Quant at
the 	end of 	September 	1990 	lowered the 	student/teacher ratio 	in
the 	kindergarten classrooms 	at 	the 	Hoopa 	Elementary School 	to 	a
level within the parameters of CBA section 710. 	Consequently, 	it
is 	determined that any 	failure by the 	District to provide
requested 	supplies 	that were 	based 	on 	kindergarten 	classroom
14

overages 	after J. 	Quant's 	employment did not violate the CBA, 	and
therefore, 	was not a violation of section 3543.5(c).
Violations 	of 	Subdivisions 	(a) 	and (b) of 	Section 	3543.5
The 	District's 	action in refusing to provide 	the 	requested
educational 	supplies when it was required to do 	so, 	thereby
unilaterally modifying the CBA, 	also violates 	the 	exclusive
representative's 	right to 	represent 	its 	members 	in their
employment 	relations with their employer, 	and therefore
constitutes a violation of 	subdivision 	(b) 	of 	section 3543.5.
In addition, 	such action also violates 	the right of
employees 	to 	be 	represented by 	their 	chosen representative 	and
therefore, 	constitutes a violation of 	subdivision 	(a) 	of 	section
3543.5.
SUMMARY
After an examination of 	the 	foregoing 	findings 	of 	fact 	and
conclusions of 	law, 	and the entire record in this 	case, 	it is
found 	that when the 	District 	refused 	to provide 	the 	CBA 	section
711 	requested 	educational 	supplies 	for the month of 	September
1990, 	it violated subdivisions 	(a), 	(b) 	and 	(c) 	of EERA section
3543.5.
REMEDY
PERB, in section 3541.5(c), 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an offending party 	to 	cease 	and
desist 	from the 	unfair practice 	and to 	take
such affirmative action, 	including but not
limited to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of this 	chapter.
15

The ordinary remedy 	in unilateral 	change cases 	is 	the return
to 	the 	status 	quo ante, 	a make whole order for any employees who
have 	suffered harm and an order 	the 	employer bargain on 	the
matter at 	issue, 	upon demand. 	(Rio Hondo Community College
District 	(1983) 	PERB Decision No. 	292.)
As 	the 	District has 	been 	found 	to have violated 	subdivisions
(a), 	(b) 	and 	(c) 	of section 3543.5 with regard to its unilateral
modification of CBA 	section 711 	regarding the payment of 	$75 	per
month per 	student over the 	specified ratios, 	the District 	is
ordered 	to 	cease 	and desist 	from refusing to 	negotiate 	the
imposition of 	this 	modification and return to the 	status 	quo
ante.
It 	is 	appropriate to 	order the District 	to 	remedy those
employees who 	suffered harm as 	a result 	of 	the District's 	unfair
practices 	by 	requiring the 	District 	to provide 	the 	requested
supplies.
It 	is 	also appropriate to order the District to 	cease and
desist 	from 	failing 	to 	grant 	the 	Klamath-Trinity Teachers
Association, 	CTA/NEA, 	rights guaranteed to it by the Educational
Employment Relations Act.
It 	is 	also 	appropriate 	that the Respondent be 	required to
post a notice 	incorporating the 	terms 	of the Order. 	The notice
should be 	subscribed by 	an authorized 	agent 	of 	the 	District,
indicating that 	it will 	comply with the terms 	thereof. 	The
notice 	shall not be reduced in size, 	defaced, 	altered or covered
by any other material. 	Posting 	such a 	notice will provide
16

employees with notice that the 	Respondent has 	acted 	in an
unlawful 	manner and 	is 	being required to 	cease and desist 	from
this activity. 	If effectuates 	the purposes of the Act that
employees 	be 	informed of 	the resolution of 	the 	controversy and
will 	announce 	the 	Respondent's 	readiness 	to 	comply with 	the
ordered 	remedy. 	(See Placerville Union School 	District 	(1978)
PERB Decision No. 	69.) 	In Pandol and Sons v. 	Agricultural Labor
Relations Board 	(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr.
584], 	the California District Court of Appeals approved a 	similar
posting requirement. 	(See also, 	NLRB v. 	Express Publishing Co.
(1941) 	312 U.S. 	426 	[8 LRRM 415].)
PROPOSED 	ORDER
Based upon the 	foregoing findings 	of 	fact, 	conclusions 	of
law and the entire record of this 	case, 	it 	is 	found that the
Klamath-Trinity 	Joint 	Unified 	School 	District 	(District) 	violated
subdivisions 	(a), 	(b) 	and 	(c) 	of Government Code section 3543.5
of the Educational Employment Relations Act 	(Act). 	Pursuant to
section 3541.5(c) 	it is hereby ORDERED that the District, 	its
superintendent 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally modifying 	section 711 	of the
collective bargaining agreement 	regarding 	the payment 	of 	$75 	per
month per 	student 	over the 	specified 	ratios.
2. 	Denying the 	Klamath-Trinity Teachers Association,
CTA/NEA, 	rights 	guaranteed to 	it by the Act.
17

3. 	Denying 	its 	employees 	the right to be represented
by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Make the involved teachers whole, 	to the extent
that 	is 	consistent with this decision, 	with regard to 	supplying
the 	materials 	requested 	in their Outside 	Supply Requisitions.
2. 	Within ten 	(10) 	workdays 	of a final decision in
this matter, 	post at all work locations where notices are
customarily placed 	at 	the 	Klamath-Trinity 	Joint 	Unified 	School
District, 	copies 	of the Notice attached hereto as 	an Appendix.
The Notice must be 	signed by an authorized agent of 	the 	Klamath-
Trinity Unified 	School District, 	indicating that 	the 	District
shall 	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.
3. 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken to 	comply with this 	Order to
the 	San Francisco 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with her 	instructions. 	Continue 	to
report 	to 	the 	Regional 	Director thereafter as directed. 	All
reports 	to 	the 	Regional 	Director 	shall 	be 	concurrently 	served 	on
the 	Charging 	Party herein.
It 	is 	further ORDERED that all 	other aspects 	of the 	charge
and 	complaint 	are 	hereby 	DISMISSED.
18

Pursuant to California Code of Regulations, 	title 	8, 	section
32305, 	this 	Proposed Decision and Order 	shall become 	final unless
a party 	filed 	a 	statement 	of 	exceptions 	with the 	Board 	itself 	at
the headquarters office 	in Sacramento within 20 days 	of 	service
of this 	Decision. 	In accordance with PERB regulations, 	the
statement 	of 	exceptions 	should 	identify by page 	citation or
exhibit number the portions of the record, 	if any, 	relied upon
for such exceptions. 	(See Cal. 	Code of Regs., 	tit. 	8, 	sec.
32300.) 	A document 	is 	considered 	"filed" 	when actually received
before the close of business 	(5:00 p.m.) 	on the 	last day 	set 	for
filing 	". 	. 	. o r when sent by telegraph or certified or Express
United States 	mail, 	postmarked not 	later than the 	last day 	set
for filing. 	. 	." 	(See Cal. Code of Regs., tit. 	8, 	sec. 	32135;
Code of Civ. 	P r o c , 	section 	1013 	shall apply.) 	Any 	statement of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently with
its 	filing upon each party to 	this proceeding. 	Proof 	of 	service
shall 	accompany 	each 	copy 	served on a party 	or 	filed with the
Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8, 	secs. 	32300,
32305 	and 	32140.)
Dated: 	May 8, 	1992 ALLEN R. 	LINK
Administrative 	Law Judge
19
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