Modesto City Schools and High School District (PERB A143E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
MODESTO
	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging
	Party,
v.
MODESTO
	crTY
	SCHOOLS
	AND
	HIGH
SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
--------------------)
MODESTO
	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging
	Party,
	APPELLANT,
v.
MODESTO
	CITY
	SCHOOLS
	AND
	HIGH
SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
__________________ }
Case
	No.
	S-CE-485
PERB
	Decision
	No.
	414
October 	12,
	1984
and
Case
	No.
	S-CE-485
Administrative
	Appeal
PERB
	Order
	No. 	Ad-143
October 	12, 	1984
AppearanQes: 	Kenneth
	w.
	Burt
	II,
	Attorney, 	for
	Modesto
Teachers 	Association,
	CTA/NEA; 	Mark
	W.
	Goodson,
	Attorney
(Breon, 	Galgani,
	Godino	
&	
O'Donnell)
	for
	Modesto
	City 	Schools
and 	High 	School
	District.
Before 	Tovar, 	Jaeger
	and
	Burt,
	Members.
DECISION
BURT, 	Member: 	The 	Modesto
	City 	Schools 	and 	High
	School
District 	(District) 	excepts 	to 	the 	administrative
	law 	judge
(ALJ)
	decision 	finding 	that 	the 	District 	violated 	subsections
3543.S(a), 	(b) 	and 	(c) 	of 	the 	Educational
	Employment
	Relations

Act
	(EERA)	
by
	unilaterally
	changing
	the 	length 	of
	time
allocated
	for
	lunch
	for
	certificated
	employees.
	The
	Modesto
Teachers
	Association,
	CTA/NEA
	(MTA
or
	Association)
	also
excepts,
	challenging 	the
	failure
	of 	the
	ALJ
	to
	award
	back
	pay
to
	the
	affected 	teachers.
l
For
	the 	reasons
	discussed
	below,
	we
	reverse
	the
	ALJ
1 s
decision
	and
	dismiss 	the 	complaint
	in
	its
	entirety.
FACTS
The
	District
	is
	composed
	of
	approximately
	30
	schools:
	23
are
	K-6,
	3
	are 	junior 	high 	schools,
	and
	4
	are
	high
	schools.
The
	Association
	is
	the
	exclusive
	representative
	of
	all
certificated
	employees
	in 	the
	District.
During
	the
	1980-81
	school 	year
	and
	several
	years 	previous,
Beyer
	High
	School
	was
	on
	a
	''modular
	schedule.
"
	The
instructional
	day
	consisted 	of 	eight
	45-minute
	periods,
including 	five
	instructional
	periods,
	a
	preparation 	period
equivalent 	to
	one
	instructional
	period,
	a
	duty-free
	lunch
period 	also 	equivalent 	to
	one
	instructional
	period,
	and
	a
student 	contact 	period.	
Teachers
	did 	not 	have 	an
	assigned
class
	during 	the 	student 	contact 	period, 	but
	were
	expected 	to
2
The
	EERA
	is
	codified 	at
	Government 	Code
	section
	3540
et
	seq. 	Unless 	otherwise 	noted,
	all
	statutory 	references 	are
to 	the
	Government 	Code.
l
under
	a
	modular 	schedule, 	the
	day
	consisted 	of
	25
15-minute 	segments
	referred 	to 	as 	mods. 	Three 	segments
	made 	up
one
	period. 	Greater
	flexibility
	was
	afforded 	teachers
	and
students 	in 	scheduling 	classes
	and
	other 	activities
	by 	using
one 	or
	more
	of 	these 	segments.
2
2

give 	make=up 	tests 	and 	assignments, 	provide 	resource 	centers,
answer 	questions 	and 	generally 	converse 	with 	students. 	Also,
during 	the 	contact 	period, 	for 	approximately 	three 	weeks 	per
'
year, 	teachers 	were 	assigned 	"forum duty" 	which 	consisted 	of
supervising 	a 	central 	area 	where 	students 	ate 	lunch 	as 	well 	as
the 	adjacent 	locker 	room 	area. 	This 	assignment 	lasted 	the
entire 	45-minute 	contact 	period. 	Students 	ate 	lunch 	during 	one
of 	three 	lunch 	periods 	under 	the 	modular 	schedule.
In 	the 	1981-82 	school 	year, 	Beyer 	High 	School 	changed 	to 	a
traditional 	high 	school 	schedule 	and 	has 	remained 	on 	this
schedule.
The 	traditional 	schedule 	is 	more 	formal. 	It 	consists 	of
seven 	SO-minute 	periods, 	including 	five 	instructional 	periods,
one 	lunch 	period, 	and 	one 	preparation 	period. 	The 	student
contact 	period 	has 	been 	eliminated, 	and 	the 	number 	of 	lunch
periods 	has 	been 	reduced 	from 	three 	to 	two. 	Teachers 	are 	now
assigned 	forum 	duty 	for 	20 	minutes 	during 	the 	lunch 	period.
The 	length 	of 	the 	forum 	duty 	assignment 	is 	still 	approximately
three 	weeks 	a 	year. 	Thus, 	for 	a 	three-week 	period 	each 	year
the 	teachers' 	SO-minute 	duty-free 	lunch 	period 	is 	reduced 	by
approximately 	20 	minutes. 	Also, 	since 	the 	number 	of 	lunch
periods 	has 	been 	reduced 	from 	three 	to 	two, 	teachers 	on 	forum
duty 	are 	responsible 	for 	supervising 	more 	students.3
There 	are 	approximately 	1850 	students 	and 	70 	teachers 	at
Beyer 	High 	School.
3
3

Although 	MTA had 	advance 	notice 	of 	the 	change 	from 	the
modular 	schedule 	to 	the 	traditional 	schedule, 	it 	was 	not 	until
the 	first 	day 	of 	classes, 	on 	Septemb"er 	8, 	1982, 	that 	it 	became
aware 	of 	the 	shift 	in 	the 	forum 	duty 	assignment 	from 	the
student 	contact 	period 	to 	the 	previously 	duty-free 	lunch 	period.
Past 	Practice
over 	the 	years, 	it 	was 	not 	uncommon 	for 	the 	District 	to
change 	daily 	schedules 	at 	the 	various 	schools. 	Such 	changes
occurred 	in 	the 	other 	high 	schools 	as 	well 	as 	in 	the 	junior
high 	schools 	and 	the 	K-6 	schools. 	In 	addition,
instructional 	schedules 	differed 	among 	the 	high 	schools 	over
the 	years, 	as 	did 	the 	number 	of 	lunch 	periods. 	There 	is 	no
historical 	consistency 	with 	respect 	to 	the 	schedules 	adopted 	by
individual 	high 	schools. 	Each 	operated 	independently 	and
according 	to 	its 	own 	needs 	when 	adopting 	daily 	schedules.
4
It 	is 	undisputed 	that, 	prior 	to 	1981-82, 	teachers 	at 	Beyer
High 	School 	had 	a 	45-minute, 	duty-free 	lunch 	period 	equivalent
to 	one 	instructional 	period. 	The 	other 	high 	schools 	also 	had
duty-free 	lunch 	periods 	of 	varying 	lengths; 	for 	example,
35 	minutes 	at 	Modesto. 	Frank 	Vandervort, 	a 	teacher 	at 	Davis
High 	School 	since 	1969, 	testified 	that 	he 	had 	never 	been
assigned 	lunchroom 	duty. 	He 	said 	the 	overall 	schedule 	changed
over 	the 	years, 	but 	the 	lunch 	period 	had 	always 	been 	the
Th.e 	other 	traditional 	high 	schools 	in 	the 	District
comparable 	to 	Beyer 	are 	Downey, 	Modesto 	and 	Davis.
4
4

equivalent 	of
	one
	instructional
	period
	and
	duty-free 	for
teachers.
	Administrators
	and
	a
	noncertificated
	noon-duty
supervisor
	performed
	lunchroom
	supervisory
	duties
	at
	Davis.
Edward
	Gonsalves,
	a
	teacher
	at
	Modesto 	High
	School
	since
	1966,
described
	a
	similar
	arrangement
	at
	that
	school.
	Ken
	McNamara,
a
	teacher
	at
	Downey
	High
	School
	since
	1980,
	testified
	that
teachers
	~here 	have
	a
	duty-free
	lunch
	period
	and
	that
	lunchroom
supervision
	is
	done
	by
	administrators,
	the
	campus
	supervisor
and
	the
	assistant
	campus
	supervisor.
	Witnesses
	from
	Downey
	and
Modesto
	High
	Schools
	testified
	that
	the 	schedules
	at
	those
schools
	were
	changed
	in 	recent 	years 	in
	that
	the
	lunch
	period
was
	shortened
	by
	approximately
	15
	minutes
	and
	a
	15-minute
morning
	break
	created.
	The
	lunch
	period
	remained
	duty-free
	and
teachers
	received 	the 	15-minute,
	duty-free
	morning
	break.
During 	1979-80,
	teachers
	at
	Downey
	did
	have 	lunchroom
	duty
for
	15
	or
	20
	minutes
	at
	a
	time, 	according 	to
	Jim
	Nicholas, 	the
current 	principal 	at
	Beyer
	who
	was
	then 	the
	assistant 	principal
at
	Downey.
	Nicholas 	conceded, 	however,
	that
	no
	teacher 	in 	the
high 	schools 	in 	the
	District
	had 	lunchroom
	duty 	during 	1980-81.
Teachers
	in 	the
	Modesto
	City
	Schools
	and
	the
	High
	School
District
	are
	all
	in
	one
	unit,
	and
	are
	all
	covered 	by 	one
collective
	bargaining 	agreement. 	While 	no
	teachers
	from
	the
elementary 	schools
	testified,
	there
	was
	testimony
	from
	the
District
	personnel 	director,
	Mel
	Jennings, 	that
	it
	was
	the
practice 	in 	several 	of 	these 	schools 	for 	teachers 	to 	perform
5

lunchroom 	supervision 	during 	lunch.5
The 	Collective 	Bargaining 	Agreement
At 	the 	time 	the 	District 	changed 	the 	schedule 	at 	Beyer 	High
School, 	the 	parties 	were 	bound 	by 	a 	collective 	bargaining
agreement. 	Article 	IV, 	Hours 	of 	Employment, 	states 	in 	relevant
part:
ARTICLE 	IV: 	HOURS 	OF EMPLOYMENT
A. 	The 	regular 	employee 	work 	day 	is 	defined
as 	follows:
1. 	For 	grades 	K-6: 	300 	minutes
including 	recesses 	and 	excluding
lunch.
2. 	For 	grades 	7-8: 	341 	minutes
including 	a 	preparation 	period
equivalent 	to 	a 	student
instructional 	period 	and 	excluding
lunch.
3. 	For 	grades 	9-12: 	330 	minutes
including 	a 	preparation 	period
equivalent 	to 	a 	student
instructional 	period 	and 	excluding
lunch.
B. 	The 	District 	and 	the 	Association
recognize 	that 	the 	varying 	nature 	of 	an
employee's 	day-to-day 	professional
jennings' 	testimony 	was 	corroborated 	by 	several
documents 	which 	he 	had 	prepared 	to 	summarize 	the 	practice 	in
the 	District. 	The 	Association 	objected 	to 	those 	documents 	on
the 	grounds 	that 	they 	were 	hearsay. 	The 	ALJ did 	not 	find 	it
necessary 	to 	rule 	on 	this 	objection, 	nor 	do 	we, 	since 	hearsay
is 	clearly. admissible 	in 	any 	case 	under 	PERB 	regulation 	32176,
although 	it 	is 	not 	sufficient 	to 	support 	a 	finding 	unless
corroborated. 	Here 	Jennings 	clearly 	testified 	from 	his
personal 	knowledge 	of 	the 	practice 	in 	question.
S
PERB 	regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 	8, 	section 	31001 	et 	seq.
6

responsibilities
	does
	not
	lead
	itself
solely 	to
	a
	work
	day
	of
	rigidly
established
	length.
In
	addition 	to
	performing
	duties
	as
assigned 	during 	the
	regular
	employee
work
	day, 	employees
	may
	be
	required 	to
perform
	other
	duties,
	many
	of
	which
shall
	occur
	outside 	of
	the
	regular
employee
	work
	day
	but 	are
	still
	relatedto
	the 	assigned
	duties.
	Such
	duties
include, 	but 	are
	not
	limited
	to,
planning
	and
	selecting
	and
	preparing
materials
	for
	instruction;
	receiving
	and
evaluating
	work
	of 	pupils,
	ensuring
Qdequate
	direction
	and
	supe~vision
	of
students
	immediately
	prior
	and
immediately 	subsequent
	to 	the 	beginning
and
	ending
	of
	the
	student 	attendance
day; 	bus
	loading 	duty; 	conferring
	and
counseling 	with
	pupils, 	parents,
	staff
and
	administrators;
	keeping
	records;
attend 	faculty,
	departmental
	and
	grade
level
	meetings 	(see
	C
below),
participating
	in
	staff
	development
programs
	and
	other 	professional
activities
	relating
	to
	the 	employee's
assignment;
	and
	studying
	current
literature
	to
	keep
	abreast 	of
developments
	within 	the 	subject 	mattertaught
	by
	the
	employees.
It 	is
	understood
	and
	agreed
	that
although 	the
	over-all
	amount
	of
	time
required 	of
	employees
	to
	perform
	theirduties
	should 	be
	substantially
	equal,the 	proportion 	of
	time
	that
	these 	duties
require
	the 	presence 	of 	the
	employee
	at
the
	work
	site
	may
	vary 	according 	to 	the
nature 	of 	the 	employee's
	duties
	and
responsibilities
.
........	
Goee$99lil!&ll!ilGe•
D.
	In
	addition 	to
	"B
11	
above, 	employees
	ingrades 	7-12
	may
	be 	required 	to 	devote
	a
reasonable
	amount
	of 	time 	to 	other
duties 	assigned 	by 	the 	building
administrator.
7

As
	a
	guideline,
	the
	time
	spent
	by
	the
employee
	on
	such
	additional 	duties
should 	not
	exceed
	approximately
	25
	hours
during
	a
	school
	year.
	The
	local
administrator
	may
	exceed
	this
	guideline
only
	if
	his/her
	action
	is
	reviewed
	and
approved 	by
	the 	Superintendent.
	In
reviewing
	the
	local 	administrator'saction,
	the 	Superintendent
	shall
consider
	the
	following:
·
1.	
Uniform 	and
	equitable
	distribution
of 	duties
	among
	employees.
2.	
Special
	needs
	of
	the 	school.
3.	
Special
	needs,
	abilities,
	handicaps,
and/or
	limitations
	of 	the 	individual
employee.
4.	
Efficient
	use
	of
	employee
	time.
5.	
Extent
	of 	the
	employees'
	voluntary
contribution 	of
	time
	to
	school 	or
district 	activities.
Elsewhere
	in 	the
	agreement,
	at
	Article
	XIV/
	the
	agreement
provides: 
9. 	Reassignment
	of
	employees
	who
	work
	in
more
	thap
	one
	school
	shall
	be
	made
	in
	a 	way
that
	minimizes
	travel
	time
	in
	accordance
with
	program 	needs 	and
	insures 	duty 	free
lunch
	periods 	of
	at 	least
	30
	minutes,
	and
where
	applicable, 	preparation 	periods.
Frank
	Vandervort,
	chief 	negotiator 	for
	MTA,
	was
	the 	only
witness
	who
	testified
	about 	the 	bargaining
	history 	related 	to
the 	contract.
With
	respect 	to 	Article 	IV.A.1.2.3., 	Vandervort
	testified
that
	most
	of 	the 	discussions 	centered
	on
	student 	contact
minutes.
	The
	parties 	attempted 	to 	reduce 	extensive 	language
found 	in 	the 	prior
	agreement 	to
	a
	clear
	and 	concise 	student
8

contact
	time
	requirement.
	In
	e
were
	aimed
	at
	making
	the
	student 	contact
	time
	in 	the 	various
grade
	levels,
	i.e.,
	K-6,
	7-8,
	and
	9-12, 	uniform
	throughout
	the
District.
	According
	to 	vandervort's
	unrebutted 	testimony, 	the
goal
	was
	to 	get
	agreement
	on
	the
	student 	contact
	minutes
	and
let
	other
	related 	practices,
	such
	as 	the
	one
	covering
	duty-free
lunch
	periods,
	continue 	as 	they
	had
	in 	the
	past
	in 	the 	various
schools.
	Although
	there
	was
	minimal
	discussion
	on
	the
	subject,
according
	to
	Vandervort,
	MTA
	was
	conscious
	of 	protecting
	the
preparation
	period
	and
	the
	duty-free
	lunch. 	In
	fact, 	there
	had
been
	no
	significant
	discussions
	about
	the
	duty-free
	lunch
period
	since 	the
	1976
	negotiations.
ssence, 	the
	parties' 	efforts
Vandervort
	has
	always
	understood
	that
	the 	lengths 	of 	the
lunch
	periods 	varied
	from
	school
	to
	school.
	However,
	he 	has
also
	understood
	that
	the
	duty-free 	nature 	of 	the
	l.unch
	period
has
	been
	a
	consistent 	practice 	in 	the
	District.
	Thus,
	when
	he
agreed
	to 	Article
	IV.A.1.2.3,
	he
	did
	so 	under
	the 	assumption
that
	the
	language
	therein 	expressly 	defined 	student 	contact
minutes, 	included
	a
	preparation 	period,
	and
	left
	the 	lunch 	time
to 	continue 	duty-free 	as
	it
	had 	been
	in 	the
	past.
With
	respect 	to 	the
	history
	surrounding
	Article
	IV.B.,
Vandervort 	described
	what 	amounts
	to
	a
	trade-off 	in 	reaching
agreement. 	In
	the 	past, 	teachers
	were
	required 	to 	report
30
	minutes 	before 	the
	start
	of 	the 	instructional
	day 	and
	stay
30
	minutes
	after 	the
	end
	of 	the 	instructional
	day
	to 	satisfy
9

work-related 	responsibilities 	such 	as 	counseling 	students,
giving 	make-up 	exams, 	etc. 	In 	return 	for 	the 	District's
dropping 	the 	rigid 	reporting 	requirement, 	MTA agreed 	to
complete 	all 	work-related 	assignments 	either 	during 	the 	workday
or 	after 	the 	workday 	as 	necessary. 	According 	to 	Vandervort,
MTA, 	by 	this 	agreement, 	recognized 	that 	teachers 	are
professionals 	and 	would 	complete 	necessary 	work-related
assignments 	when 	necessary 	without 	the 	need 	for 	the 	rigid
reporting 	requirement.
Article 	IV.D. 	covers 	extracurricular 	activities, 	such 	as
supervising 	dances, 	athletic 	events, 	etc. 	According 	to
Vandervort, 	MTA 	introduced 	the 	25-hour 	concept; 	this 	clause
means 	that 	teachers 	were 	responsible 	for 	up 	to 	25 	hours 	of
extracurricular 	assignment.
Lastly, 	Article 	XI 	of 	the 	contract 	includes 	a 	standard
management 	rights 	clause 	about 	which 	there 	was 	no 	testimony.
DISCUSSION
The 	ALJ 	found 	that 	the 	District's 	change 	in 	the 	duty-free
lunch 	period 	constituted 	an 	unlawful 	unilateral 	change 	in 	a
matter 	related 	to 	wages, 	hours, 	etc., 	according 	to 	this 	Board's
decisions 	in 	Anaheim 	Union 	High 	School 	District 	(10/28/81) 	PERB
Decision 	No. 	177 	and 	Healdsburg 	Union 	High 	School 	District,
et 	al. 	(1/5/84) 	PERB 	Decision 	No. 	375 	and 	that 	the 	District
therefore 	violated 	its 	duty 	to 	negotiate 	in 	good 	faith.
Contrary 	to 	the 	ALJ, 	we 	find 	that 	the 	length 	of 	the 	duty-free
10

lunch 	need 	not 	be 	analyzed 	to 	determine 	whether 	it 	is 	related
to 	a 	matter 	within 	scope. 	The 	length 	of 	the 	lunch 	period 	is
the 	issue 	of 	hours 	itself 	and 	falls 	directly 	within 	the 	scope
of 	negotiations 	enumerated 	by 	EERA. 	As 	the 	Board 	held 	in
San 	Mateo 	City 	School 	District 	(5/20/80) 	PERB 	Decision
No. 	12 9, 6 	p. 	15:
tpe 	negotiability 	of 	hours 	of 	employment
includes, 	of 	necessity, 	negotiability 	of 	the
hours 	during 	which 	employees 	are 	not
required 	to 	work. 	. 	. 	. 	[ I ]t_ 	is 	Innerent 	in
the 	negotiability 	of 	the 	workday 	that-one
may 	deal 	with 	the 	~lacement 	and 	duration
within 	that 	time 	frame 	of 	lunch 	periods 	and
the 	designation 	and 	nature 	of 	relief 	time
from 	the 	performance 	of 	one's 	duties.
See 	also 	Marysville 	Joint 	Unified 	School 	District 	(5/27/83)
PERB 	Decision 	No. 	314r 	Fresno 	County 	Board 	of 	Education, 	et 	al.
(9/17/84) 	PERB 	Decision 	No. 	409.
An 	employer 	violates 	its 	duty 	to 	negotiate 	in 	_good 	faith
when 	it 	unilaterally 	changes 	an 	established 	policy 	affecting 	a
matter 	within 	the 	scope 	of 	negotiations 	without 	affording
notice 	and 	an 	opportunity 	to 	negotiate 	to 	the 	exclusive
representative. 	Grant 	Joint 	Union 	High 	School 	District
(2/26/82) 	PERE 	Decision 	No. 	1967 	Pajaro 	Valley 	Unified 	School
This 	decision 	was 	annulled 	by 	the 	California 	Supreme
Court 	in 	San 	Mateo 	City 	School 	District, 	et 	al. 	v. 	PERE 	(1983)
33 	Cal.3d 	850. 	In 	that 	decision, 	however, 	the 	Court 	upheld 	the
Board's 	approach 	to 	determining 	whether 	matters 	are 	within 	the
scope 	of 	negotiation, 	and 	directed 	the 	Board 	to 	reconsider
San 	Mateo, 	supra 	and 	Healdsburg, 	supra, 	in 	light 	of 	its
decision. 	The 	Board 	did 	so 	in 	Healdsburg 	Union 	High 	School,
et 	al. 	(1/5/84) 	PERB 	Decision 	No. 	375.
6
11

District
	(5/22/78)
	PERB
	Decision
	No.
	51;
	NLRB
	v. 	Katz 	(1962)
369
	U.S.
	736
	[50
	LRRM
	2177].
Established
	policy
	may
	be
	reflected
	in
	a
	collective
agreement, 	Grant, 	supra, 	or
	where
	the
	agreement
	is
	vague
	or
ambiguous,
	it
	may
	be
	determined
	by
	examining
	the
	past
	practice
or
	relevant
	bargaining
	history,
	Rio
	Hondo
	Community
	College
District
	(-12/31/82)
	PERB
	Decision
	No.
	279;
	Pajaro 	Valley, 	supra.
Here
	the
	collective
	agreement
	makes
	several 	references	
to
the
	hours
	to
	be
	worked,
	but
	is 	silent
	on
	the 	issue 	of 	the
duration 	of 	the
	lunch
	period.
	The
	agreement
	specifies 	that
teachers
	in 	grades
	9-12
	are 	to
	work 	330
	minutes
	per
	day.
	The
agreement 	does
	not 	give 	the 	length 	of 	the
	lunch
	hours, 	but
specifies 	that
	the
	preparation 	period
	shall
	be
	equivalent 	to
	a
student
	instructional 	period.
	No
	such
	qualification
	is
	added
with 	regard
	to
	lunch. 	Clearly 	there
	is
	provision 	for
	a
duty-free
	lunch
	of
	some
	length, 	since 	the
	330
	minutes
	excludes
lunch, 	but 	the 	length
	is
	unspecified.
The
	District
	notes 	in
	its
	brief 	that
	it
	is.
required
	by
other 	regulations 	to 	provide
	a
	duty-free
	lunch
	period 	of
	at
least
	30
	minutes,
	and
	it
	argues
	that
	it
	has
	discretion 	to
establish
	the 	length 	of 	the 	lunch
	period, 	based
	on
	the 	needs 	of
the 	school. 	This 	30-minute
	figure 	is
	used 	elsewhere 	in 	the
7
Th.e
	District
	does 	not 	specify 	the 	regulations 	in
question, 	but
	we
	presume
	it
	refers 	to 	regulations 	adopted
pursuant 	to 	the 	Education 	Code.
7
12

contract,
	ensuring
	that
	teachers
	who
	travel
	between
	schools
have
	a
	duty-free
	lunch
	of
	at
	least
	30
	minutes.
	Other
	con~ract
sections
	dealing
	with
	additional 	duties 	to
	be
	performed
	do
	not
reference
	lunch
	duty
	at
	all.
The
	evidence
	presented 	regarding 	bargaining
	history
	is
similarly
	inconclusive.
	The
	parties
	apparently
	were
	concerned
with 	defining 	the
	actual
	working
	minutes
	and
	the
	general
	amount
of
	time
	to
	be
	spent
	on
	additional 	duties,
	but 	there
	was
	little
or
	no
	discussion
	with 	regard
	to
	the 	length 	of
	the
	duty-free
lunch,
	which
	the
	parties
	knew
	varied
	from
	school
	to
	school.
Since 	the
	language
	of
	the
	contract
	is 	silent
	with
	regard
	to
	the
length 	of
	the
	duty-free
	time
	for 	lunch,
	and
	the
	negotiation
history 	is
	similarly
	vague,
	we
	find
	it
	appropriate 	to 	turn 	to
the
	past 	practice
	in 	the
	District
	to
	determine
	whether
	there
has
	been
	a
	change
	in 	policy
	as
	alleged
	by
	the 	Association.
Clearly 	there
	was 	a
	change 	between 	1980-81 	and
	1981-82
	in
the 	length 	of 	the 	duty-free
	lunch
	period 	for 	teachers
	at
Beyer--for 	three
	weeks
	it
	was
	shorter,
	and
	for 	the
	rest
	of 	the
year
	it
	was
	slightly
	longer.8
However, 	Beyer
	is
	only
	one
	of
	four
	traditional
	high 	schools
in 	the 	District
	and
	the 	record
	indicates 	that 	the 	past 	practice
There 	were
	several 	other
	time 	changes 	as
	a
	result 	of 	the
switch
	from
	the
	modular
	to 	the
	traditional
	schedule.
	No
charges
	were
	filed
	with 	regard 	to 	other 	changes, 	and
	there 	is
insufficient
	evidence 	in 	the 	record 	to 	determine 	the
	effect 	of
those 	changes 	on 	the 	contractually 	agreed-upon 	330-minute
maximum
	workday.
8
13

in 	the 	District 	varied 	at 	each 	school. 	While 	the 	ALJ
acknowledged 	that 	the 	past 	practice 	in 	the 	District 	was 	varied,
he 	unaccountably 	concluded 	that 	these 	aberrations 	"do 	not
detract" 	from 	the 	established 	past 	practice 	at 	Beyer.
On 	the 	contrary, 	we 	find 	the 	varied 	practice 	in 	the
District 	to 	be highly 	significant. 	The 	evidence 	indicates 	a
great 	deal· of 	variation 	among 	the 	schools 	with 	regard 	to 	the
length 	of 	the 	lunch 	period, 	and 	reflects 	as 	well 	a 	great 	deal
of 	flexibility 	in 	scheduling. 	While 	the 	practice 	at 	Beyer
appears 	relatively 	consistent 	in 	offering 	a 	duty-free 	lunch 	of
the 	same 	length 	as 	one 	instructional 	period, 	the 	lunch 	period
was 	shorter 	at 	Modesto 	and 	Downey. 	Further, 	one 	witness
testified 	without 	contradiction 	that 	teachers' at 	Downey 	did
have 	lunchroom duty 	at 	some 	period'in 	the 	past. 	We
specifically 	reject 	the 	ALJ's 	suggestion 	that 	the 	past 	practice
at 	schools 	in 	the 	District 	other 	than 	Beyer 	is 	irrelevant.
Teachers 	in 	the 	District 	belong 	to 	one 	unit 	and 	are 	covered 	by
one 	contract. 	Absent 	any 	evidence 	of 	any 	contrary 	intention,
past 	practice 	throughout 	the 	unit 	is 	relevant 	in 	determining
whether 	or 	not 	a 	unilateral 	change 	in 	policy has 	occurred.
Grant, 	supra.
Here, 	because 	there 	is 	evidence 	of 	a 	varied 	past 	practice
in 	the 	length 	of 	the 	duty-free 	lunch 	for 	teachers, 	we 	conclude
that 	the 	Association 	has 	failed 	to 	demonstrate 	that 	the
District 	has 	made 	a 	unilateral 	change 	in 	policy 	so 	as 	to
14

violate
	EERA.
	For
	that
	reason,
	we
	overturn
	the
	decision 	of 	the
ALJ,
	and
	order 	the
	complaint
	dismissed.
We
	also
	deny
	the
	Association's
	r~quest 	for
	costs,
	sirice
	we
find
	it
	to
	be
	without
	merit,
	and
	we
	deny
	the
	District's
	request
for
	oral
	argument
	since
	we
	find
	that
	no
	novel
	issues 	are
presented.
Further,
	we
	hereby
	deny
	the
	Association's
	appeal
	of 	the
executive
	director's
	rejection
	of
	its
	response
	to
	exceptions
because 	the 	response
	was
	untimely
	filed.
	The
	executive
director
	has
	correctly 	interpreted
	PERB
	regulation
	323109
controlling
	the
	time
	for
	filing
	of
	response,
	and
	the
Association's
	filing
	was
	indeed
	untimely.
9PERB
	regulation
	32.310
	states:
Within
	20
	days
	following 	the 	date 	of
	service
of 	the 	statement 	of 	exceptions,
	any
	party
may
	file
	with
	the
	Board
	itself
	an
	original
and
	five 	copies 	of
	a
	response
	to
	the
statement 	of 	exceptions
	and
	a
	supporting
brief.
	The
	response
	shall
	be
	filed
	with 	the
Board
	itself
	in 	the 	headquarters
	office.
The
	response
	may
	contain
	a
	statement 	of
	any
exceptions 	the 	responding
	party
	wishes
	to
take 	to 	the
	recommended
	decision.
	Any
	such
statement 	of 	exceptions
	shall
	comply
	in
	form
with 	the 	requirements 	of 	Section
	32300.
	A
response 	to
	such 	exceptions
	may
	be
	filed
within
	20
	days.
	Such
	response
	shall
	comply
in
	form
	with 	the 	provisions 	of
	this
Section. 	Service
	and
	proof 	of 	service 	ofthese
	documents
	pursuant 	to 	Section
	32140
are 	required.
15

ORDER
Upon
	the
	foregoing
	decision,
	and
	the
	entire
	record
	in
	this
matter,
	it
	is
	hereby
	ORDERED
	that
	the
	unfair
	practice
	charge 	in
Case
	No.
	S-CE-485
	is
	hereby
	DISMISSED.
It
	is
	further
	ORDERED
	that
	the
	Association's
	appeal
	of
rejection
	of
	its
	~espOnse
	to
	exceptions
	is
	hereby
	DENIED.
Member
	Jaeger 	joined
	in
	this
	Decision.
Tovar,
	Member,
	concurring
	and
	dissenting:
	I
	would
	affirm
the
	ALJ's 	proposed
	decision 	finding
	that
	the
	District
unilaterally
	altered
	the
	policy
	of
	a
	duty-free
	lunch
	period
equivalent 	to
	one
	instructional
	period 	without
	first
	providing
notice
	and
	an
	opportunity 	to 	negotiate 	to
	MTA,
	the 	exclusive
representative
	of 	the
	certificated
	employees
	in 	the
	District.
I
	agree 	with
	the
	ALJ's
	assessment
	that
	the
	variations
	which
existed
	in 	the
	District
	do
	not 	diminish 	the
	fact
	that-,
	for
almost 	ten 	years
	at
	Bayer 	High
	School,
	the
	practice
	had
	been
that 	the 	duty-free
	lunch 	time 	equaled
	an
	instructional 	period
in 	length.
	The
	variations
	were
	primarily
	a
	result 	of
	changes
in 	the 	length 	of 	the 	school 	periods,
	depending 	on
	preparation
time, 	contact
	time 	and 	what
	scheduling 	system
	was 	~n
	practice
at
	the 	time
	(traditional 	or
	modular}.
	However,
	unrebutted
testimony 	reveals 	that 	at
	Bayer, 	and
	generally 	at
	the 	other
high 	schools 	in 	the
	District, 	teachers 	had
	a
	duty-free 	lunch
16

period
	with
	student 	supervision 	being
	provided
	by
	the
administrators
	at
	the 	schools 	and/or
	noon-time
	supervisors
outside
	the
	bargaining
	unit.
I
	concur 	with 	the
	rest
	of 	the
	determination
	made
	by
	my
colleagues 	regarding 	the 	request 	for
	costs
	and
	the
Association's
	appeal
	of
	the 	executive
	director's 	rejection
	for
lack
	of
	time~iness 	of
	its
	response
	to
	exceptions.
17