Hacienda La Puente Unified School District (PERB 1187E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HACIENDA LA 	PUENTE 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
HACIENDA LA 	PUENTE 	UNIFIED
SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-3533
PERB Decision No. 	1187
March 17, 	1997
Appearances; 	California Teachers Association by Charles 	R.
Gustafson, 	Attorney, 	for Hacienda La Puente Teachers Association,
CTA/NEA; 	Wagner & Wagner by John J. 	Wagner, 	Attorney, 	for
Hacienda 	La 	Puente Unified School 	District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the Hacienda
La Puente Unified School District 	(District) 	of 	a 	PERB
administrative law judge's 	(ALJ) 	proposed decision 	(attached).
The ALJ dismissed 	the 	allegation by 	the 	Hacienda 	La 	Puente
Teachers Association, 	CTA/NEA 	(Association) 	that 	the District
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA)1 when it unilaterally changed the
BERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
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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policy regarding 	the processing 	of 	grievances. 	The ALJ 	concluded
that 	the District violated EERA section 3543.5(a) 	and 	(b) 	and 	(c)
when 	it 	refused 	to provide 	the Association with 	information which
was 	necessary and 	relevant 	to 	the Association's 	discharge 	of 	its
duty to 	represent 	its 	employees.
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 	reviewed 	the 	entire 	record 	in 	this 	case
including 	the 	original 	and amended unfair practice 	charge, 	the
complaint, 	the proposed decision and the 	filings 	of 	the parties.
The Board affirms 	the ALJ's decision in part, 	and reverses 	it 	in
part, 	in accordance with the 	following discussion.
DISCUSSION
The 	Board finds 	the ALJ's 	findings 	of 	fact 	to be 	free 	of
prejudicial 	error and hereby adopts 	them as 	the 	findings 	of 	the
Board 	itself.
The 	Board 	finds 	the ALJ's 	conclusions 	of 	law concerning 	the
alleged unilateral 	change 	in policy 	regarding 	the 	processing 	of
grievances 	to be 	free 	of 	prejudicial 	error and hereby adopts 	them
as 	the decision of 	the Board 	itself. 	The Association offers 	no
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exceptions 	to the ALJ's 	dismissal 	of 	its 	charge 	relating 	to 	this
conduct.
The District 	excepts 	to 	the ALJ's 	consideration of 	an
unalleged 	theory 	concerning whether 	the 	District's 	conduct
constituted an unlawful 	refusal 	to provide 	the Association
with 	information necessary and relevant 	to 	the 	discharge 	of 	its
representational 	duties. 	The Association responds by supporting
the ALJ's 	consideration of 	the unalleged 	theory and 	finding 	of 	a
violation.
In Santa Clara Unified School 	District 	(1979) 	PERB Decision
No. 	104 	(Santa Clara USD), 	the Board stated that an unalleged
violation 	can be 	considered only 	if 	it 	is 	intimately 	related 	to
the subject matter of 	the 	complaint, 	is part of 	the same course
of 	conduct, 	has been fully litigated, 	and the parties have had
the 	opportunity 	to 	examine 	and be 	cross-examined on 	the 	issue.
The 	failure 	to meet 	any of 	these 	conditions prevents 	the Board
from considering 	an unalleged violation. 	(Tahoe-Truckee 	Unified
School District 	(1988) 	PERB Decision No. 	668.)
The ALJ 	concluded 	that 	the 	Santa 	Clara USD 	standard was met
in 	this 	case, 	and proceeded to 	consider 	the unalleged violation.
The Board disagrees.
The purpose 	of 	the 	Santa 	Clara USD 	standard 	is 	to 	insure
that 	the 	Board decides 	a 	case based on an unalleged 	theory 	only
when 	it 	is 	clear that 	the parties 	have been afforded their due
process 	rights. 	The parties must have adequate notice and
opportunity to litigate 	the 	issue, 	including the 	respondent's
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opportunity to defend against 	the allegation. 	Therefore, 	when it
is not 	clear that the parties have been given adequate notice and
opportunity 	to 	fully 	litigate 	an unalleged 	theory, 	a 	finding 	that
the 	Santa Clara USD 	standard has 	not been met must 	result.
A review of 	the 	record 	in this 	case 	reveals 	that 	there 	is
virtually no 	reference prior 	to 	the ALJ's 	proposed decision 	to an
EERA violation based 	on 	the 	theory 	that 	the District 	refused 	to
provide 	the 	Association 	with 	information necessary 	and 	relevant
to 	its 	representational 	duties. 	There 	is no reference 	to this
unalleged 	theory 	in 	the Association's 	original 	and amended unfair
practice 	charge, 	in the 	complaint 	issued by a Board agent, 	in the
transcript 	of 	the hearing, 	or 	in the post-hearing briefs
submitted by either the District 	or the Association. 	Instead, 	it
is 	clear 	from the 	record 	that 	the parties 	litigated 	this matter
exclusively as 	an alleged unilateral 	change violation.
While 	the 	same 	conduct may give 	rise 	to violations 	based on
different 	legal 	theories, 	the arguments and defenses 	related to
those 	different 	theories 	also 	typically differ. 	Parties must be
given the 	opportunity to 	fully litigate 	each legal 	theory. 	After
reviewing the 	record, 	the Board concludes 	that 	it 	is not 	clear
that 	opportunity was 	provided 	in 	this 	case with 	regard 	to 	the
unalleged 	theory 	that 	the District 	unlawfully 	refused 	to provide
the Association with 	information necessary and 	relevant 	to 	its
representational duties. 	Therefore, 	the Santa Clara USD standard
has 	not 	been met 	and 	the unalleged 	theory 	should not 	have been
used to decide 	the 	case.
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ORDER
The unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CE-3533 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Caffrey joined 	in this 	Decision.
Member Dyer's 	concurrence/dissent 	begins 	on page 	6.
5
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DYER, 	Member, 	concurring and dissenting: 	I agree that 	the
Hacienda 	La 	Puente Unified School 	District's 	(District) 	conduct
in this 	case does 	not 	constitute a unilateral 	change 	from its
past practice. 	Accordingly, 	I 	concur with the majority's
adoption 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
administrative law judge's 	(ALJ) 	analysis of that 	issue. 	I write
separately, 	however, 	because 	I disagree with the Board's
dismissal 	of 	the unalleged violation 	found by 	the ALJ.
The 	Board may 	rule 	on an unalleged violation of 	the
Educational 	Employment Relations Act 	in either of 	two
circumstances. 	First, 	where an unalleged violation is 	distinctly
separate 	from the 	charged unfair practice, 	the Board may rule 	on
the unalleged violation 	if 	the 	respondent 	has 	adequate 	notice and
an opportunity 	to defend against 	the violation. 	(Santa 	Clara
Unified School District 	(1979) 	PERB Decision No. 	104 at p. 	18
(Santa Clara).) 	Second, 	where an unalleged violation is
intimately related to 	the 	subject matter of 	the 	complaint, 	the
Board may 	rule 	on 	the unalleged violation 	if: 	the unalleged
violation is part 	of 	the 	course 	of 	conduct 	alleged 	in 	the
complaint; 	the unalleged violation is 	fully litigated; 	and the
parties 	have had an opportunity to 	examine and 	to be 	cross-
examined regarding the unalleged violation. 	(Id. 	at pp. 	18-19;
Mt. 	Diablo Unified School District 	(1984) 	PERB Decision
No. 373c at p. 4.)1
1I note 	that, 	in Tahoe-Truckee Unified School 	District
(1988) 	PERB Decision No. 	668, 	the Board erroneously combined the
two 	standards 	set 	forth 	in Santa Clara 	into a single 	test.
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This 	case 	revolves 	around the District's 	refusal 	to process
a pair of grievances. 	Implicit 	in this 	conduct was 	the
District's 	refusal 	to 	inform the Hacienda 	La 	Puente 	Teachers
Association, 	CTA/NEA 	(Association), 	upon request, 	of its
rationale 	for not 	processing 	those 	grievances.
The 	Board has 	long held 	that 	an exclusive 	representative 	is
entitled 	to 	information 	sufficient 	to 	enable 	it 	to understand and
intelligently discharge 	its 	duty 	to 	represent 	bargaining unit
members. 	(Chula Vista City School District 	(1990) 	PERB Decision
No. 	834 at pp. 	50-52.) 	Here, 	both District and Association
witnesses 	testified, 	without 	contradiction, 	that 	the Association
requested 	the District's 	rationale 	for 	refusing 	to process 	the
grievances 	in question. 	Those 	same witnesses 	testified that,
without 	giving any justification, 	the District 	refused to 	comply
with the Association's request. 	Thus, 	the only issue remaining
is a question of 	law, 	to wit: 	was 	the requested information
necessary and 	relevant 	to 	the Association's 	representational
duties? 	It was. 	(Hacienda La 	Puente Unified School 	District
(1997) 	PERB Decision No. 	1184 at p. 	4.)
Despite 	the 	foregoing, 	the majority refuses 	to 	find the
District 	liable 	for 	its 	refusal 	to provide 	information because
the parties 	did not 	have 	the 	opportunity to raise 	the 	legal
"arguments and defenses 	related to" 	the unalleged violation. 	I
do not 	find this 	to be the 	case. 	I note 	that the parties had
every 	opportunity to 	raise 	these 	arguments 	and defenses 	in 	their
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pleadings before this Board. 	For the foregoing reasons, 	I
conclude 	that 	the 	record 	in this 	case meets 	the 	second
Santa 	Clara 	standard and 	that 	the 	Board 	should have 	considered
the unalleged violation.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HACIENDA 	LA 	PUENTE 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
HACIENDA 	LA 	PUENTE 	UNIFIED
SCHOOL DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-3533
PROPOSED 	DECISION
(6/20/96)
Appearances: 	California Teachers Association by Charles 	R.
Gustafson, 	Attorney, 	for Hacienda La Puente Teachers Association,
CTA/NEA; 	Wagner, 	Sisneros & Wagner by John J. 	Wagner, 	Attorney,
for Hacienda 	La 	Puente Unified 	School 	District.
Before W. 	Jean Thomas, 	Administrative Law Judge.
INTRODUCTION
This 	case 	involves 	a dispute 	over a public 	school 	employer's
refusal 	to 	accept 	or process 	written grievances 	filed by
individual 	certificated employees 	on 	two 	separate 	occasions 	in
early 1995. 	The union alleges 	that 	inasmuch as 	it 	tried
unsuccessfully 	to 	ascertain 	from 	the 	employer why 	it 	perceived
the grievances 	to be deficient, 	the 	employer's 	conduct 	amounts 	to
a unilateral 	and secret 	change 	in the parties' 	contractual
grievance 	machinery.
The 	employer maintains 	that 	the 	evidence 	shows 	that 	it 	has
not 	changed 	the 	policy with respect 	to 	administration of 	the
grievance provisions of the contract. 	Additionally, 	it argues,
the 	two grievances 	at 	issue 	here were 	not 	processed because
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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neither was 	filed 	in 	accordance with 	the 	requirements 	of 	the
grievance 	procedure.
PROCEDURAL 	HISTORY
The Hacienda La 	Puente Teachers Association, 	CTA/NEA
(Association) 	filed an unfair practice 	charge with the 	Public
Employment Relations Board 	(PERB or Board) 	on March 6, 	1995,
alleging 	that 	the 	Hacienda 	La 	Puente 	Unified School 	District
(District) 	engaged 	in conduct 	that 	violated the 	Educational
Employment 	Relations Act 	(EERA or 	Act).1 The 	charge 	was 	amended
on May 8, 	1995.
After an 	investigation of 	the 	charge, 	the Office of 	the
General 	Counsel of 	PERB 	issued a complaint on May 24, 	1995, 	which
alleged 	that 	the 	District 	unilaterally 	changed 	the 	policy
regarding grievance 	processing when 	it 	refused to process 	a
grievance 	in January, 	and later in March 1995, 	in accord with the
grievance provisions 	established by the parties' 	collective
bargaining agreement 	(CBA).2 The 	complaint 	further alleged that,
by this 	conduct, 	the District 	repudiated the 	contractual
grievance 	procedure 	and 	failed and 	refused to bargain 	in good
faith with the Association in violation of 	section 3543.5 (c) .
The 	same 	conduct 	also 	allegedly 	interfered with the
1EERA is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code.
2On the 	same date, 	the Board agent 	denied the District's
request 	for deferral 	of 	the 	charge 	to 	the 	arbitration provisions
of 	the 	CBA. 	At 	the 	hearing the District 	orally moved 	for
deferral, 	and the motion was denied for the 	same 	reasons 	stated
by the Board agent 	in his May 24 	ruling.
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representational 	rights 	of 	bargaining 	unit 	employees 	in 	violation
of 	section 	3 5 4 3 . 5 ( a ) , 	and denied 	the Association 	its 	right 	to
represent 	unit 	members 	in violation of 	section 	3 5 4 3 . 5 ( b ) . 3
The 	District 	answered 	the 	complaint 	on 	June 	13, 	1995,
wherein 	it 	denied 	all 	material 	allegations 	of 	unfair 	conduct.
An 	informal 	settlement 	conference 	held 	by 	PERB 	on 	July 	31,
1995, 	did not 	resolve 	the 	dispute.
A 	formal 	hearing 	was 	conducted 	by 	the 	undersigned 	on
November 	20, 	1995. 	Both parties 	filed post-hearing briefs. 	The
last 	brief 	was 	filed 	on 	January 	8, 	1996, 	and the 	case 	was
submitted 	thereafter 	for 	a 	proposed 	decision.
FINDINGS 	OF 	FACT
The 	parties 	stipulated, 	and 	it 	is 	found, 	that 	the
District 	is 	a 	public 	school 	employer 	and 	the 	Association 	is 	an
employee 	organization 	as 	those 	terms 	are 	defined 	in 	EERA. 	The
3 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
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.
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Association 	is 	the 	exclusive 	representative 	of 	the 	District's
certificated 	employees 	bargaining unit.
Since 	1977, 	the District 	and the Association have been
parties 	to 	a 	succession of 	CBA's 	which 	contained a 	grievance
procedure 	that 	culminates 	in 	final 	and binding arbitration. 	The
current 	CBA has 	an effective 	term from September 	1, 	1994, 	through
August 31, 	1996.
The provisions of the 	three-step, grievance procedure 	are 	set
forth 	in Article VII 	of 	the 	CBA. 	The 	stated purpose of 	this
procedure 	is
to provide, 	at 	the 	lowest administrative
level, 	a means by which a grievance may be
resolved in an equitable, 	efficient manner 	in
an 	atmosphere 	of 	courtesy and 	cooperation.
Article VII, 	paragraph F(l), 	defines a "grievance" 	as a
claim by 	a 	bargaining unit 	member 	of 	" . . . 	a 	violation,
misinterpretation 	or misapplication of 	an express 	provision of
this agreement." 	Under Article VII, 	paragraph F(2), 	the
Association has 	the 	right 	to 	file 	a grievance 	alleging a
violation of 	an Association right.
The 	steps 	for grievance 	resolution 	are 	contained 	in
paragraph G. 	The process 	for initiating a grievance 	at 	Step 	1
reads:
Step 	1. 	Any grievant 	who knew or reasonably
should have 	known of 	the 	circumstances 	which
formed the 	basis 	for the grievance 	shall
present 	the 	grievance 	in writing to the
immediate 	administrator within 	fifteen 	(15)
days. 	Failure 	to do so will 	render the
grievance null 	and void. 	The written
information 	shall 	include:
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a. 	Description of 	the 	specific 	grounds 	of
the grievance, 	including name, 	dates,
and places 	necessary 	for 	complete
understanding of 	the grievance.
b. 	A listing of 	the provisions 	of 	this
agreement 	which are 	alleged to 	have 	been
violated, 	misapplied, 	or misinterpreted.
c. 	A listing of 	the 	specific 	action
requested of 	the 	district 	which will
remedy the 	grievance.
The 	immediate 	administrator or his 	designee
shall 	meet 	with the 	grievant within 	five 	(5)
days. 	The disposition of 	the grievance 	shall
be 	indicated in writing within five 	(5) 	days
of 	the meeting with copies 	to 	the 	grievant
and the 	association.4
Barbara Koehler 	(Koehler) 	is 	the District's 	assistant
superintendent of personnel. 	Among other duties, 	she 	is
responsible 	for overseeing 	the 	processing of 	all 	grievances 	filed
by certificated unit 	employees. 	When a grievance 	is 	filed,
Koehler normally receives 	a 	copy 	for 	review before 	any District
action is 	initiated. 	According to Koehler, 	the District 	has had
a 	long-standing practice 	of 	quickly 	reviewing 	any 	document
purporting to 	initiate 	a grievance 	to determine 	if 	it 	follows 	the
steps and procedures outlined in Article VII. 	If 	it does, 	a
meeting 	is 	held within five 	days 	at 	Step 	1, 	followed by a written
response.
If 	a grievance 	appears 	on 	its 	face 	not 	to 	conform with the
requirements of Article VII, 	paragraph G, 	the District will not
process 	it 	as 	a grievance. 	Koehler testified that 	the District
4The 	time 	limits 	specified 	in the 	grievance 	procedure 	are
governed by the 	terms of Article VII, 	paragraph B. 	References 	to
"days" 	are usually working days.
5

has made 	it 	a practice to notify the Association of 	such
decisions, 	but 	it 	does not 	inform the Association of 	the nature
of 	the perceived deficiency.
At 	each level 	of 	the grievance procedure, 	including Step 	3
(arbitration), 	the District 	insists on strict compliance with all
the 	requirements 	of 	the grievance provisions. 	The 	CBA does 	not
contain disclosure 	language, 	nor does' it expressly prohibit 	full
or partial 	disclosure 	by either party.
Koehler, 	a 19-year District employee, 	has been the
District's 	chief negotiator since 	1989. 	Prior to 1989, 	she was a
member of 	the 	District's 	negotiating 	team 	for many years.
According to her, 	from time 	to 	time 	the Association has 	submitted
proposals 	to make non-substantive 	changes 	in Article VII.
However, 	none of 	the proposals 	involved paragraph G, 	even when
the parties 	used the 	interest-based bargaining 	approach 	in 	1991.
Since 	1977, 	the 	language of Article VII 	has 	remained
substantially 	unchanged.
The 	parties 	have 	never used a 	standard 	form 	for grievance
processing.
The 	Ben Harb Grievance
Banayout 	(Ben) 	Harb 	(Harb) 	has been employed by the District
since 	1985 	as 	an ESL teacher 	in the 	adult 	education program. 	On
December 7, 	1994, 	Harb submitted a letter to his 	school
administrator, 	Barry Altshule 	(Altshule), 	initiating a Step 1
grievance pursuant 	to Article VII 	of 	the 	CBA. 	This grievance was
based on 	the District's 	alleged non-payment 	of 	10 	hours 	of work
66

as reflected by Harb's November 17, 	1994, 	pay warrant. 	This
warrant 	covered the 	two pay periods 	ending on October 	2 	and
November 4, 	1994.
Harb's 	December 	7 	letter did not 	indicate which 	section of
the 	CBA he believed had been violated. 	He 	did seek a 	remedy of
payment 	for the 	two days 	in question 	-- 	September 	12 	and
October 4, 	1994. 	Harb's 	letter proposed a meeting with the
District 	and his Association representative 	on December 	13, 	1994.
Koehler responded to Harb's 	letter on January 6, 	1995. 	Her
letter 	stated 	in part:
As 	this 	letter does 	not 	follow the 	format
outlined 	in Article VII 	of 	the Agreement
Between 	the 	Board of 	Education of 	the
Hacienda 	La 	Puente Unified 	School 	District
and 	the 	Hacienda 	La 	Puente 	Teachers
Association/California 	Teachers
Association/National 	Education Association,
it will 	not be 	handled as 	a grievance.
A copy of 	this 	letter was 	sent 	to Ray Lopp 	(Lopp), 	the 	California
Teachers Association 	(CTA) 	staff person assigned to 	service 	the
Association.
Koehler 	testified that 	the 	statement 	in her 	January 	6 	letter
referred 	to 	her 	conclusion 	that 	Harb's 	grievance 	did not 	meet 	the
requirements of paragraph G, 	Step 1, 	sub-parts a, 	b, 	and c
"either in part or in whole." 	First of all, 	Harb's 	letter did
not 	state 	the 	section of 	the 	CBA that 	allegedly was 	violated.
Additionally, 	Koehler concluded, 	his grievance with respect 	to
the September 12, 	1994, 	claim for non-payment was 	facially
?

untimely 	in 	that 	the 	complained-of 	action 	had occurred more 	than
15 	working days prior to the 	date 	of 	his 	letter.5
When Lopp received Koehler's January 6, 	1995 	letter, 	he
telephoned her 	to 	ascertain what 	was 	wrong with Harb's 	letter.
Koehler told him to read the 	contract 	for the. answer.
After discovering 	the 	sub-part(b) 	omission 	from Harb's
letter, 	on January 10, 	1995, 	Lopp sent Altshule a memo/addendum
to the December 	7 	grievance 	letter, 	adding the 	CBA section
allegedly violated. 	Lopp, 	who has been the primary processor of
unit members' 	grievances 	for a little more than five years, 	had
initiated the preparation of 	Harb's grievance. 	He 	characterized
the 	omission 	from the 	December 	7 	letter as 	"inadvertent."
Koehler responded to Lopp, 	by a 	letter dated January 27,
1995, 	wherein 	she 	acknowledged receipt 	of 	his January 10 memo to
Altshule, 	and referred him to her January 6, 	1995 	letter which
was 	attached. 	Koehler testified that 	the 	intent 	of 	her
January 27 	letter was 	to 	convey to Lopp 	that 	Harb's 	December 	7
filing was 	still 	deficient 	despite 	Lopp's 	January 	10 	attempt 	to
correct the 	sub-part 	(b) 	omission.
Lopp 	spoke 	with 	Koehler by 	telephone 	both before 	and 	after
he 	submitted the 	addendum. 	On both occasions, 	Koehler took the
position 	that 	since 	the 	grievance procedure 	made 	no provision 	for
5Harb maintains 	that 	he 	first 	discovered the 	non-payment 	for
the two days 	in question when he received the November 17, 	1994,
pay warrant. 	Shortly thereafter, 	he verified through the
District 	payroll 	office 	that 	Altshule 	had disallowed 	the 	10 	hours
on 	the monthly time 	sheets 	that 	the 	teachers 	submit 	to 	their
supervisors 	for the 	days/hours worked.
8

the 	submission of 	addenda to the original 	grievance 	letter, 	an
addendum was 	not 	permissible. 	Lopp 	insisted that 	since Article
VII 	did not 	expressly prohibit 	addenda, 	they were permissible.
The parties 	did not 	resolve 	their differences 	on this 	issue.
Thereafter, 	there was no 	further discussion about 	nor
attempted processing of 	the 	Harb grievance.
The 	Nick 	Giglio 	Grievance
Nick Giglio 	(Giglio) 	has been employed for 	11 years 	as 	a
teacher 	in the 	District's 	correctional 	education program. 	Giglio
initiated a Step 	1 grievance, 	with his 	site 	supervisor, 	Alice
Johnson 	(Johnson) 	by a letter dated March 27, 	1995. 	This
grievance 	alleged 	the 	improper 	reduction of 	four hours 	of
assigned work time per week beginning March 7, 	1995. 	Giglio's
letter 	listed 	a provision 	of 	the 	CBA allegedly violated by 	this
action and 	sought 	restoration of 	the 	reduced hours 	and back pay
or 	some 	other 	form of 	compensation 	for the 	lost 	hours.
After 	conferring with Koehler, 	Johnson responded to Giglio
by letter on March 28, 	1995, 	that his grievance would not be
processed because 	it 	did not 	follow 	the 	procedures 	outlined 	in
Article VII.
After he 	received Johnson's 	letter, 	Giglio went 	to Lopp and
asked him to pursue 	the matter through 	some 	other process. 	Lopp
instead 	telephoned 	Koehler 	and 	they had 	a 	heated discussion 	about
the District's 	response 	to Giglio. 	By the 	end of 	their
conversation and, 	despite 	several 	requests, 	Lopp was 	still unable
to 	find out 	from Koehler why the 	District 	rejected 	the 	grievance.
9

The Association made 	no 	further 	attempt 	to pursue 	the 	Giglio
grievance 	through 	the 	contractual 	grievance 	procedure.
Koehler 	testified 	that 	the 	grievance 	was 	rejected because
the 	District 	concluded that 	it 	did not 	comply with the prescribed
time 	limit 	specified in Article VII, 	paragraph G. 	Koehler
regarded 	it 	as 	untimely because 	it 	was 	not 	filed within 	15
working 	days 	of 	the 	date 	the 	District 	believed Giglio 	first 	had
knowledge 	about 	the 	change 	in his 	assigned hours.6
The 	District's 	Practice 	Regarding 	Processing Other 	Certificated
Unit 	Grievances
As part 	of 	its 	evidence 	to 	establish a practice with respect
to 	processing 	grievances 	filed by 	certificated unit 	employees,
the 	District 	presented a 	summary prepared by Koehler. 	This
summary 	showed 	that 	17 	grievances 	were 	initiated between October
1990 	and November 	1995.7
6Giglio 	and 	the 	District 	dispute when he 	first 	learned about
the 	closure 	of 	the 	facility where 	he worked prior to March 	7,
1995. 	Giglio 	admitted having a 	conversation with Johnson on
February 28, 	1995, 	regarding possible 	closure of 	the 	facility and
her willingness 	to 	find him additional 	hours 	of 	work at 	another
facility. 	But 	he maintained 	in his 	testimony that 	the 	employees
at 	his 	former 	facility were 	not 	informed of 	the 	actual 	closure
until March 6, 	1995, 	even though there were rumors of 	closure 	for
several 	months prior to March 	6.
If Giglio's claim of notice is correct, 	his March 27, 	1995,
grievance would have been timely filed. 	In any event, 	a
resolution of 	this 	factual 	dispute 	is 	not 	necessary 	for
disposition of 	this 	case.
Johnson 	subsequently 	found 	three 	additional 	hours 	per 	week
of 	assigned work 	for Giglio beginning May 17, 	1995.
7This 	total 	includes 	the 	December 	1994 	Harb 	and the March
1995 	Giglio grievances. 	However, 	the 	six grievances 	filed after
March 	1995 	will 	not 	be 	considered as 	evidence 	of 	the 	District's
past practice. 	It 	is noted, 	that of 	the 	six grievances which were
10

From October 	1990 	through June 	1994, 	nine grievances were
filed. 	Four of 	the 	nine were processed as grievances.8 The
District 	did not 	accept 	five 	filings 	as 	grievances 	because,
according to 	Koehler, 	they were 	not 	in accord with the
requirements 	of paragraph G of Article VII. 	Three of 	the
grievances 	not 	processed were 	deemed 	to be untimely based on 	the
District's 	review of 	the 	initial 	information presented. 	In the
case 	of 	teacher George Ezquerro 	(Ezquerro) 	in September 	1993,
although 	the 	District 	initially decided 	that 	the 	grievance 	did
not 	comply with the 	requirements of Article VII, 	paragraph G, 	the
then-superintendent 	later decided 	to 	handle 	the matter 	as 	a 	bona
fide grievance.9
ISSUES
When 	it 	refused to process 	the Harb 	and Giglio grievances 	in
early 	1995, 	did the 	District 	unilaterally change 	its 	policy
regarding grievance 	processing 	and, 	thereby violate 	section
3543.5(a), 	(b) 	or 	(c) ?
processed between March and November 	1995, 	one was 	filed by Harb
on October 	1995.
8Incidentally, 	three 	of 	these 	grievances were 	initiated by
Harb.
9In connection with this 	case, 	the Association 	filed an
unfair practice charge 	(Case No. 	LA-CE-3407) 	against 	the District
on January 7, 	1994. 	Among other things, 	the Association alleged
that 	the 	District 	had refused to process 	Ezquerro's 	September
1993, 	grievance 	in violation of EERA. 	The charge was 	later
withdrawn and the case closed on August 	11, 	1994.
11

CONCLUSIONS 	OF 	LAW
A. 	The 	Unilateral 	Change Allegation
It 	is well-settled that 	an employer who makes 	a pre-impasse
unilateral 	change 	in an established, 	negotiable practice violates
its 	duty to meet 	and negotiate 	in good 	faith 	(NLRB v. 	Katz 	(1962)
369 U.S. 	736 	[50 LRRM 2177]). 	Such unilateral changes are
inherently destructive 	of 	employee 	rights 	and are 	a 	failure
per se of 	the 	duty to negotiate 	in good faith. 	(Davis Unified
School District, 	et al. 	(1980) 	PERB Decision No. 	116; 	State of
California 	(Department of Transportation) 	(1983) 	PERB Decision
No. 	361-S.)
An 	established negotiable 	practice 	may be 	reflected 	in 	a 	CBA
(Grant 	Joint Union High School 	District 	(1982) 	PERB Decision No.
196 	(Grant)) 	or where the agreement 	is vague or ambiguous, 	it may
be 	determined by 	an 	examination 	of 	bargaining history 	(Colusa
Unified School District 	(1983) 	PERB Decision Nos. 	296 	and 296a)
or the past practice. 	(Rio Hondo Community College District
(1982) 	PERB Decision No. 	279; 	Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51 	(Pajaro).)
In order to 	establish a prima 	facie 	case of 	unlawful
unilateral 	change 	in or repudiation of, 	a contract 	or past
practice, 	the charging party must 	show: 	(1) 	that the respondent
has 	breached or otherwise 	altered the parties' 	written agreement
or its own established past practice; 	and 	(2) 	that 	the breach
constituted 	a 	change 	of 	policy having a 	generalized effect 	or
12

continuing 	impact 	on 	the 	terms 	and 	conditions 	of 	employment 	of
bargaining unit 	employees. 	(See Grant 	at p. 	9.)
To 	show a change 	in the District practice, 	the Association
must 	first 	establish what 	the 	existing grievance 	processing
practice 	or policy was prior to Harb's 	December 	1994 	grievance.
A past 	practice 	is 	established through a 	course 	of 	conduct 	or as
a way of 	doing 	things 	over an extended period of 	time. 	(Pajaro;
Cajon Valley Union School 	District 	(1995) 	PERB Decision No.
1085.)
Evidence 	was 	presented 	to 	show how the 	District 	has
responded 	to 	certificated unit 	grievances 	over 	the 	four-year
period just prior to December 	1994.
This 	evidence 	demonstrates 	that 	the 	District 	has
consistently 	required 	strict 	compliance 	with the 	technical
requirements 	of 	the 	grievance procedure 	at 	every step of 	the
parties' 	grievance machinery. 	Of the nine grievances 	filed
between October 	1990 	and June 	1994, 	the District processed four
through the 	contractual 	grievance machinery to 	resolution. 	The
remaining 	five 	were 	rejected 	as 	grievances 	because 	the 	District
concluded 	that 	in 	some way they did not 	comply with 	the
provisions 	of paragraph G of Article VII. 	Three of 	the
grievances 	not 	processed were 	deemed 	to 	be 	untimely based 	on 	an
initial 	review of 	the 	information presented 	in 	the 	grievance
documents. 	In each instance, 	no other explanation was given 	for
the 	District's 	refusal 	to process 	the 	grievance.
13

In one 	case, 	the District 	initially rejected a grievance 	for
nonconformity with paragraph G, 	but 	later processed 	it 	anyway.
This 	single exception, 	which occurred in September 1993, 	is
insufficient 	to 	demonstrate 	a break 	or 	an 	inconsistency 	in 	the
District's past 	course 	of 	conduct 	with respect 	to either
processing or 	refusing to process 	grievances.
The 	District's 	responses 	to 	the 	December 	1994 	and the
March 	1995 	grievance were 	no 	different 	from 	its 	past 	responses
when it 	refused grievances. 	There 	is 	thus no basis 	for
concluding 	that 	its 	conduct 	in either case was 	inconsistent 	with
its past 	manner of 	refusing to accept 	or process 	unit 	member
grievances 	that 	did not 	meet 	its 	very 	strict 	interpretation of
the 	CBA grievance 	language.
Also, 	it 	cannot be 	concluded from the evidence 	that 	the
District's 	conduct 	in either 	case 	amounted to a 	repudiation of
Article VII. 	Whether the District's 	application of 	the
provisions of Article VII 	are 	correct, 	or 	its response 	to either
the 	Harb 	or 	the 	Giglio grievances was 	accurate 	or 	justified 	is 	a
matter 	for determination 	through the 	grievance 	procedure 	itself,
especially since 	Step 	3 	provides 	for 	final 	and binding
arbitration. 	It 	is not 	a matter for PERB to consider through an
unfair practice 	charge. 	(See 	Baldwin 	Park Unified School
District 	(1979) 	PERB Decision No. 	92.)
Even 	if 	the 	District's 	conduct with respect 	to 	either
grievance 	amounted to a breach of Article VII, 	the 	evidence 	fails
to 	show that 	such breach constituted a 	change 	of 	policy having a
14

generalized 	effect 	or 	continuing 	impact 	on 	the 	unit 	employees'
terms 	and conditions 	of 	employment. 	Between March and November
1995, 	six unit member grievances, 	including one for Harb, 	were
processed 	through 	the 	same 	contractual 	grievance 	machinery.
It 	is 	thus 	concluded that 	the Association has not met 	its
burden of 	establishing a prima 	facie 	case 	of unilateral 	change.
At 	most, 	the 	case has 	demonstrated a dispute over the
interpretation 	and/or application of 	certain provisions 	of
Article VII.
In Grant 	the 	Board 	considered 	a 	contract 	repudiation 	claim
and concluded as 	follows:
The Association claims 	that 	the 	District
repudiated Article 	X of 	the 	agreement
concerning contingency pay. 	However, 	the
facts 	asserted by 	the 	Association 	actually
challenge 	the 	District's 	application of 	the
contract's provision. 	The District 	does not
deny 	its 	contractual 	obligation but 	claims 	it
properly 	implemented 	the 	provision both 	as 	to
the use 	and the 	amount 	of 	the 	surplus 	funds.
We 	find 	in 	these 	competing claims 	nothing
which demonstrates 	a 	"policy change." 	[Id.
at p. 	12.] -
The 	same 	theory applies 	in this 	case. 	The District 	admits
its 	contractual 	obligations under Article VII, 	and asserts 	that
it 	has maintained a pattern of 	implementation consistent 	with 	its
established past practice. 	It 	further contends 	that 	it 	has 	a
contractual 	right 	to 	insist 	on 	strict 	compliance with all 	of 	the
procedural 	requirements 	of 	the grievance procedure. 	The
Association argues 	that 	the 	District's 	refusal 	to 	clarify
"ambiguous" 	responses 	to grievances which 	it 	deems procedurally
defective 	or 	enter 	into productive 	dialogue 	about 	them 	is
15

contrary 	to 	its 	statutory good 	faith obligation 	to 	resolve 	issues
through the parties' 	negotiated grievance process. 	These
conflicting interests and attitudes do not, 	however, 	amount 	to a
policy or practice 	change.
For all 	the reasons discussed above, 	it 	is 	concluded that,
under the Grant 	standard, 	the Association has not proven an
unlawful 	unilateral 	change 	in practice 	in 	repudiation of 	the 	CBA
grievance 	article 	that 	constitutes 	a 	change 	in policy.
B. 	The 	Refusal 	to 	Provide 	Information Allegation
In the original 	and the 	amended charges, 	the Association
referred to 	its 	attempts 	to 	find out 	from the District 	why it
regarded the 	Harb and Giglio grievances 	as 	deficient. 	And that,
in each case, 	the District 	refused to give 	any information beyond
that 	contained 	in 	the 	response 	letters. 	Although the District's
alleged refusal 	to provide 	information was 	not 	specifically
alleged 	in either the 	charge 	or 	the 	amendment 	as 	independent
unlawful 	conduct, 	these allegations were not withdrawn by the
Association, 	nor dismissed by PERB when the 	complaint 	was 	issued.
The 	allegations 	remained as 	conduct 	that 	formed the 	basis 	for 	the
complaint 	and 	the 	hearing.
In Santa 	Clara Unified School 	District 	(1979) 	PERB Decision
No. 	104 	(Santa Clara). 	the Board established the principle that
unalleged violations 	may be 	entertained by 	PERB 	only when
adequate 	notice 	and 	the 	opportunity to 	defend has 	been provided
the 	respondent, 	and where 	such acts 	are 	intimately related to 	the
subject matter of 	the 	complaint, 	are part 	of 	the 	same 	course 	of
16

conduct, 	have 	been 	fully 	litigated and the parties 	have 	had the
opportunity to 	examine 	and be 	cross-examined on the 	issue.
(Santa Clara; 	Eureka City School District 	(1985) 	PERB Decision
No. 	481; 	and Tahoe-Truckee Unified School District 	(1988) 	PERB
Decision No. 	668 	(Tahoe-Truckee).) 	In Tahoe-Truckee the Board
indicated that 	the 	failure 	to meet 	any of 	the 	above-listed
requirements 	will 	prevent 	PERB 	from 	considering unalleged 	conduct
as 	a violation of 	the Act. 	The 	Santa Clara 	standard will 	be
applied to this 	case.
First, 	the 	failure 	to provide 	information referenced 	in the
charges 	is 	inextricably 	intertwined with 	the unilateral 	change
conduct 	alleged in the complaint. 	In fact, 	the crux of 	the
Association's 	unilateral 	change 	allegation 	is 	that 	the District's
refusal 	to explain why it 	would not 	accept 	the grievances
amounted to a 	"change in the grievance 	. 	. 	. 	process which 	[was]
not agreed to and 	. 	. 	. 	kept secret from the Association."
Although 	the Association did not 	move 	to 	amend the 	complaint
before 	or during 	the 	hearing 	to 	add 	the 	failure 	to provide
information theory as 	a separate basis 	for a violation, 	the
District 	knew 	from 	the 	PERB 	complaint 	and the 	testimony of 	the
key Association witnesses 	(Harb, 	Giglio and Lopp) 	that 	its
refusal 	to 	explain 	or 	clarify why the 	two 	grievances 	were 	not
acceptable 	for processing was 	the main 	issue 	in this 	case.
Additionally, 	no objection to 	the presentation of 	evidence
relevant 	to 	this 	allegation was 	ever 	raised during 	the 	hearing.
17

As 	indicated in the 	findings 	of 	fact, 	both parties presented
documentary 	evidence 	and 	testimony about 	their 	legal 	theory with
respect 	to 	the 	two 	attempted grievances. 	Each side 	had a 	full
opportunity to 	examine 	and cross-examine 	all 	witnesses 	on 	the
question 	of 	whether 	the 	District 	disclosed 	to 	the 	individual
grievants 	or 	the Association why the 	grievances 	were 	rejected.
In any event, 	there 	is 	little or no dispute 	about 	the 	relevant
facts 	related to this 	issue.
Under this 	analysis, 	it 	is 	concluded that 	the Santa Clara
and Tahoe-Truckee 	standards 	have been 	satisfied. 	It 	is 	therefore
appropriate 	to 	consider 	the 	unalleged 	legal 	theory raised here 	as
a 	separate violation of EERA. 	(Santa Clara; 	Tahoe-Truckee.)
It 	has 	been 	long held by both the 	National 	Labor Relations
Board 	(NLRB) 	and PERB 	that 	an exclusive 	representative 	is
entitled 	to 	information 	sufficient 	to 	enable 	it 	to understand and
discharge 	its 	duty to 	represent 	bargaining unit members.
Requested 	information must 	be 	furnished 	for purposes 	of
representing 	employees 	in negotiations 	for 	future 	contracts 	and
also 	for policing 	the 	administration of 	existing 	agreements.
(Chula Vista City School District 	(1990) 	PERB Decision No. 	834
(Chula Vista).)
In defining 	"necessary and relevant 	information," 	PERB, 	in
Stockton Unified School District 	(1980) 	PERB Decision No. 	143
(Stockton) 	held 	that 	information pertaining 	immediately to
mandatory subjects 	of 	bargaining 	is 	so 	intrinsic 	to 	the 	employer-
employee 	relationship 	that 	it 	is 	considered presumptively
18

relevant 	and must 	be 	disclosed unless 	the 	employer 	can 	establish
that 	the 	information 	is 	plainly 	irrelevant 	and/or 	can provide
adequate 	reasons why it 	cannot 	furnish the 	information. 	(See
also Los Angeles Unified School District 	(1994) 	PERB Decision No.
1061.)
In Modesto City Schools 	and High School District 	(1985) 	PERB
Decision No. 	479 	(Modesto), 	it was held that the exclusive
representative 	is 	entitled 	to 	information 	during 	the 	prosecution
of 	grievances 	initiated pursuant 	to the provisions 	of 	a CBA. 	In
Chula Vista, 	the Board cited NLRB v. 	Acme 	Industrial 	Company
(1967) 	385 U.S. 	432, 	437-38 	[64 LRRM 2069] 	(Acme Industrial) 	for
the proposition 	that 	requested 	information must 	be provided 	in
the processing of 	grievances:
. 	. 	. 	if it likely would be relevant and
useful 	to 	the union's 	determination of 	the
merits 	of 	the grievance 	and to 	their
fulfillment 	of 	the union's 	statutory
representation duties.
Under the National Labor Relations Act 	(NLRA), 	a 	failure or
refusal 	to provide 	needed 	information 	constitutes 	a 	refusal 	to
bargain 	in violation of 	the NLRA, 	because 	it 	conflicts with the
statutory policy 	to 	facilitate 	effective 	collective 	bargaining
and 	dispute 	resolution within 	the 	collective 	bargaining
framework. 	In Stockton 	PERB held that 	the 	duty to provide
relevant 	information 	is 	encompassed within 	an employer's 	good
faith negotiating 	obligation under 	EERA and 	a 	failure 	to 	provide
requested 	information may be 	evidence 	of 	bad 	faith bargaining 	and
a violation of section 3543.5 (c).
19

The EERA, 	like 	the NLRA, 	includes provisions which encourage
the 	settlement 	of 	disputes 	within 	the 	collective 	bargaining
framework.10 Therefore, 	to 	fulfill 	its 	statutory 	"meeting and
negotiating" 	obligation, 	an employer subject 	to the EERA must, 	as
a general 	rule, 	supply to an exclusive 	representative 	of 	its
employees 	information 	and documents 	which are 	relevant 	to 	a
pending grievance, 	and needed by the 	organization to pursue 	the
grievance. 	The 	determination of whether requested 	information 	is
relevant 	to 	the 	grievances 	filed or needed by the Association 	is
not 	a 	decision on the merits 	of 	the 	contractual 	claim 	stated 	in
the grievance. 	(Acme 	Industrial.) 	Instead, 	the 	standard of
relevance 	is more 	liberal 	than that 	used 	in the 	civil 	discovery
examination where 	the 	precise 	dispute 	has 	not yet 	been 	framed and
prepared for trial. 	(Id. 	at p. 	437.) 	Under this approach, 	the
employer must 	provide 	the 	requested 	information 	if 	it 	likely
would be 	relevant 	and useful 	to 	the 	union's 	grievance
determination 	and 	fulfillment 	of 	its 	statutory 	representation
duties. 	(Id. 	at pp. 	437-438.) 	As the court observed,
Arbitration can 	function properly only 	if 	the
grievances procedures 	leading to 	it 	can 	sift
out 	unmeritorious 	claims. 	[Ibid.]
The 	evidence 	in this 	case 	establishes 	that 	the 	information
sought 	by the Association 	from the 	District 	was 	both 	relevant 	to
the 	grievances 	and needed by the Association 	to 	determine
whether, 	and how, 	to pursue the Harb and Giglio grievances. 	When
1 0 S e e , 	e . g . , 	s e c t i o n 	3 5 4 1 . 5 (a) , 	3 5 4 3 , 	3 5 4 8 - 3 5 4 8 . 3 , 	3 5 4 8 . 5 ,
3 5 4 8 . 7 	a n d 	3 5 4 8 . 8 .
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it 	sought 	information 	to determine why the District 	was 	rejecting
each grievance, 	the Association was 	acting within the 	sphere 	of
its 	function as 	the bargaining representative 	of 	Harb and Giglio.
Yet, 	when Lopp 	spoke with Koehler about 	the Harb grievance, 	he
was told to 	"read the contract," 	and in essence, 	figure 	it out
for himself. 	No other explanation was provided. 	In the 	Giglio
case, 	Koehler adamantly refused to 	tell 	Lopp why Giglio's
grievance was unacceptable, 	despite his 	repeated requests 	for an
explanation. 	Ultimately, 	the Association was unable 	to obtain
this 	information until 	Koehler 	testified at 	the 	hearing.
In its defense, 	the District argues that 	(1) 	it has a
contractual 	right 	to 	insist 	upon 	strict 	compliance with all 	the
technical 	requirements of Step 	1 of 	the grievance procedure, 	and
(2) 	a 	strict 	enforcement 	approach benefits 	the District 	in that
it 	does not 	have 	to wait until 	a grievance 	reaches 	the
arbitration 	level 	to determine whether or not 	it 	is meritorious.
The District 	also maintains 	that 	since 	the 	language 	of Article
VII 	does 	not 	require 	it 	to disclose why it will 	not process 	a
grievance, 	it has no contractual obligation to provide the
Association with such information. 	Finally, 	it 	asserts 	that 	the
Association 	has 	known of 	its 	manner 	and method of 	administering
Article VII 	for several years, 	yet 	it 	has not attempted to
negotiate 	any substantive 	changes 	in the 	grievance 	article.
There 	is 	no question that 	the 	District 	has 	the 	contractual
right 	to 	strictly enforce all provisions of Article VII. 	It 	is
also 	clear that 	no provision of 	the 	CBA requires 	the 	District 	to
21

disclose 	to 	the Association the 	reasons 	for deciding not 	to
process 	a unit member's grievance. 	However, 	these rights do not
supersede 	the 	District's 	statutory 	"meeting 	and negotiating"
obligation under EERA to provide 	the 	exclusive 	representative 	of
its 	employees with 	information relevant 	to 	a pending grievance 	in
order 	for 	the 	union 	to 	intelligently evaluate 	and pursue 	the
grievance. 	Koehler's 	refusals 	to 	respond to Lopp demonstrate 	how
the 	District's 	"obstructionist" 	approach to 	the process 	denied
each grievant 	and 	the Association 	an opportunity to 	assess 	the
District's position and respond appropriately. 	It 	is well-
settled 	that 	collective 	bargaining 	is 	not 	confined 	to 	the 	making
of 	an agreement 	but 	is 	a 	day-to-day process 	in which the
grievance procedure 	has 	a very 	important 	role 	as 	a 	continuation
of 	the collective bargaining process. 	(Stockton; 	Jefferson
School District 	(1980) 	PERB Decision No. 	133.)11
The 	District's 	restrictive 	view of 	its 	disclosure 	obligation
not 	only evidences 	a 	lack of 	good faith, 	but 	also appears 	to be
at 	odds with the 	stated purpose of 	the parties' 	grievance
procedure 	which 	contemplates 	grievance 	resolution 	in 	"an
equitable manner 	. 	. 	. 	in an atmosphere of courtesy and
cooperation."
Its 	hypertechnical 	attitude 	and practice 	of 	refusing 	to
inform the Association about why it will 	not 	accept 	or process 	a
11In fact, 	some 	authorities have declared the grievance
procedure 	to be 	the 	core 	of 	the 	collective bargaining agreement.
(See Elkouri and Elkouri, 	How Arbitration Works, 	4th Ed. 	(1985),
p. 153, fn 3. )
22

grievance 	that 	is 	initially considered deficient 	falls 	short 	of
the 	good 	faith bargaining obligation 	inherent 	in 	the 	day-to-day-
administration of 	a 	CBA through 	its 	grievance 	machinery.
Finally, 	it 	is 	concluded that 	the District was unable 	to
present 	any evidence 	in support 	of 	its waiver argument. 	An
employer which asserts 	that 	an 	employee 	organization has 	waived
its 	statutory rights 	to meet 	and negotiate 	has 	the burden of
proof 	with respect 	to 	this 	assertion. 	(Amador Valley Joint Union
High School District 	(1978) 	PERB Decision No. 	74.) 	Here the
District 	was 	unable 	to present 	competent 	evidence 	about 	any 	such
waiver by the Association during negotiations, 	and there 	is 	no
explicit waiver in the contract. 	Thus, 	the waiver defense 	is
rejected.
For all 	the 	foregoing reasons, 	it 	is therefore concluded
that 	the 	District's 	refusal 	to provide 	requested 	information 	as
described above 	amounted to a violation of 	section 3543.5 (c) 	of
the Act. 	Further, 	it 	is concluded that, 	by this same conduct,
the 	District 	violated 	section 	3543.5(b) 	by 	interfering with 	the
Association's 	right 	to 	administer and 	enforce 	a 	bargained-for 	CBA
while 	representing 	certificated unit 	members 	in 	grievance
processing. 	Finally, 	it 	is concluded that, 	by the same conduct,
the 	District 	violated 	section 	3543.5(a) 	by 	interfering with 	two
certificated unit 	employees 	in 	their 	exercise 	of 	rights
guaranteed 	by 	EERA.
REMEDY
Section 3541.5(c) 	of the Act 	states:
23

The board 	shall 	have 	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.
In order to 	remedy the 	unfair practice 	of 	the 	District 	and
to prevent 	it 	from benefiting 	from 	its 	unfair 	conduct 	and to
effectuate 	the purposes of 	the EERA, 	it 	is 	appropriate 	to order
it 	to 	cease 	and desist 	from 	failing 	and 	refusing 	to provide
relevant 	information 	to 	the Association 	for 	its 	grievance
representation of unit 	employees. 	(Stockton.)
It 	is 	also 	appropriate 	that 	the District be 	required to post
a notice 	incorporating the 	terms 	of 	the 	order at 	all 	sites where
notices 	are 	customarily placed 	for 	certificated employees. 	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. 	Posting such a notice
will 	provide 	employees with notice 	that 	the 	District 	has 	acted 	in
an unlawful 	manner 	and 	is being required to 	cease 	and desist 	from
this 	activity and will 	comply with the 	order. 	It 	effectuates 	the
purposes 	of 	EERA that 	employees be 	informed of 	the 	resolution of
the 	controversy and will 	announce 	the 	readiness 	of 	the 	District
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 National 	Labor
24

Relations Board v. 	Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8
LRRM 	415].)
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions of 	law and
the entire record in this 	case, 	it 	is 	found that 	the Hacienda
La 	Puente Unified School 	District 	(District) 	violated the
Educational Employment Relations Act 	(Act), 	Government Code
section 3543.5(a), 	(b) 	and 	(c). 	It is hereby ordered that the
District 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to provide 	the Hacienda La 	Puente 	Teachers
Association, 	CTA/NEA 	(Association) 	with information that 	explains
or 	clarifies 	the 	District's 	reasons 	for not 	accepting or
processing a unit 	member grievance 	that 	the 	District 	perceives 	as
procedurally 	defective.
2. 	Denying to the Association rights 	guaranteed to 	it
by the Act, 	including the 	right 	to represent unit members 	in
grievances.
3. 	Interfering with and restraining employees 	in the
exercise 	of 	rights 	guaranteed to 	them by the Act, 	including 	the
right 	to 	have 	representation on a 	contract 	grievance.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Upon request, 	provide 	the Association with timely
information 	that 	explains 	or clarifies 	the 	District's 	reasons 	for
not 	accepting 	or processing 	a unit 	member grievance 	that 	the
District 	perceives 	as 	procedurally defective.
25

2. 	Within ten 	(10) 	working days of 	the 	service of a
final 	decision in this matter, 	post 	at 	all work 	locations where
notices 	to 	certificated employees 	are 	customarily posted, 	copies
of 	the Notices 	attached hereto 	as Appendix. 	The Notice 	should be
subscribed by an authorized agent 	of 	the 	District, 	indicating
that 	it 	will 	comply with the 	terms 	of 	this Order. 	Such posting
shall 	be 	maintained 	for a period of 	thirty 	(30) 	consecutive work
days. 	Reasonable 	steps 	shall 	be 	taken to ensure 	that 	the Notice
shall 	not be 	reduced in size, 	altered, 	or covered with any other
material.
3. 	Upon issuance of 	a 	final 	decision, 	make written
notification of 	the 	actions 	taken to 	comply with this 	Order to
the 	Sacramento 	Regional 	Director of 	the 	Public 	Employment
Relations 	in 	accordance 	with 	the 	Regional 	Director's
instructions. 	Continue to report, 	in writing, 	to the Regional
Director thereafter as directed. 	All 	reports 	shall 	be
concurrently 	served 	on 	the 	charging party herein.
The 	allegations 	of 	unlawful 	unilateral 	change 	are 	hereby
DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party files 	a 	statement 	of 	exceptions 	with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
2 0 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,
26
.

relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually-
received before the 	close of business 	(5 p.m.) 	on the 	last day
set 	for filing 	". 	. 	. 	or when sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day set for filing . 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	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 Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
W. JEAN THOMAS
Administrative Law Judge
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