PERB Decision No. 0179E•Sierra Joint Community College District (PERB 0179E)
Sierra Joint Community College District (PERB 0179E)
PERB Decision No. 0179ECalperb5 de nov. de 1981
Texto completo
STATE OF CALIFORNIA DEC IS ION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD SIERRA COLLEGE FACULTY ASSOCIATION, Charging Party, v. SIERRA JOINT COMMUNITY COLLEGE DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) ) _____________________ ) Case No. S-CE-89 PERB Decision No. 179 November 5, 1981 Appearances: Darrel D. Tipton and John Bodney, Attorneys for Sierra College Faculty Association; Paul M. Loya, Attorney (Loya & Associates) for Sierra Joint Community College District. Before Gluck, Chairperson; Jaeger, Moore, and Tovar, Members. DECISION The Sierra College Faculty Association (hereafter SCFA) excepts to the dismissal of its charges that the Sierra Joint Community College District (hereafter District) violated section 3543.S(b) and (c) of the Educational Employment Relations Actl by refusing to negotiate over released time lEERA is codified at Government Code section 3540 et. seq. Unless otherwise noted, all references will be to the Government Code. Section 3543.S(b) and (c) provide: It shall be unlawful for a public schoolemployer to:
and by refusing to provide reasonable amounts of released time to SCFA negotiators.2 In the spring of 1977, faculty me·mbers representing the SCFA as negotiators arranged their teaching schedules for the following fall semester so that their Tuesday and Thursday afternoons would be clear for negotiations. The District knew of the teachers' intent and approved the schedules, . though it neither expressly approved nor rejected the purpose of those arrangements. When negotiations began on September 8, 1977, SCFA proposed a released-time formula which would provide a one-fifth reduction from the normal fifteen-hour teaching load of community college instructors who were serving as negotiators. The normal total workweek for community college instructors, including classtime, preparation, office duties and meetings, was 40 to 45 hours of which 22 to 25 hours were required to be spent on campus. SCFA suggested that its (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. 2section 3543.l(c) reads: A reasonable number of representatives of an exclusive representative shall have the right to receive reasonable periods of released time without loss of compensation when meeting and negotiating and for the processing of grievances. 2
released-time proposal was consistent with the District's past practice of granting similar reduced teaching loads to division chairpersons and employee organization officers. The District rejected the proposal on September 20, taking the position that released time could only be granted from scheduled assignments, not unscheduled duties, and that the SCFA proposal was actually a request for compensatory time-off rather than for released time. The latter, said the employer, could only be provided during periods of actual meeting and negotiating. Since the teachers had no scheduled work during these periods, the District contended released time would not be appropriate. The District also rejected a further suggestion by SCFA that negotiations take place in the morning hours when classes were scheduled by its negotiators. It was the District's position that such a scheduling would be inconvenient to its own negotiators and it offered no meeting times as satisfactory other than those already scheduled in the afternoons. At no time did the District offer counterproposals and SCFA broke off further negotiations on September 20 after the District took the position that future negotiations over released time would be futile. The hearing officer concluded that although released time is a negotiable subject, the SCFA proposal was one for compensatory time off from duties at times other than "when meeting and negotiating" and, therefore, could not be construed 3
as a released-time proposal under the terms of the statute. He also found that there was no refusal by the District to negotiate over released time since SCFA was really seeking compensatory time off and because it was SCFA which ended the talks. Additionally, he found that evidence of successful negotiations on some other subjects weighed against the SCFA's claim that the District's conduct interfered with negotiations and amounted to a refusal to negotiate in good faith. DISCUSSION The District maintained at the hearing that released time is not subject to negotiations. The hearing officer found otherwise. Yet, he dismissed the charge alleging the District's refusal to negotiate on this matter. His conclusion was predicated on his view of SCFA's proposal as unrelated to released time. Accepting, arguendo, that the SCFA's proposal was not within scope, the District would certainly be within its rights to reject that proposal. As noted in Jefferson School District (6/19/80) PERB Decision No. 133, and reaffirmed in Anaheim Union High School District (10/28/81) PERB Decision No. 177, the Board finds that released time is a subject within the scope of representation. In this case, the District categorically denied that it bore an obligation to negotiate on any released-time proposal. In so doing, it violated section 3543.S(c) of the EERA. 4
The hearing officer's conclusion that the proposal offered by SCFA was not one for released time placed emphasis on the statutory phrase " .•• when meeting and negotiating." It appears that he defines the negotiating process as only that time when the parties actually are in session. So narrow a construction of the statutory language is unwarranted. In our view, the phrase is intended to permit teacher negotiators to receive released time for periods spent in the negotiating process. How much of this total time span is subject to the requirement of section 3543.1 depends, of course, on what is "reasonable." But we find in this section no requirement that the time employees are excused from duty without loss of compensation must precisely coincide with time actually spent negotiating. As we pointed out in Anaheim, supra, section 3543.1 evidences a legislative intent that negotiations be conducted and concluded expeditiously and without unnecessary impingement on the educational process. To insist that released time be limited to those periods when negotiating sessions and teaching duties actually coincide, precludes employees from assigning their first priorities to their work obligations. Employees willing to negotiate entirely on their own time in order to minimize interruption of work assignments during the negotiating period would be precluded from proposing release from some portion of their 5
duties at a time less inconvenient to the educational process
or from duties of lesser importance.
Here, the teachers rearranged their schedules to avoid a
conflict between negotiations and classroom obligations.
Whether their request for a one-fifth reduction in teaching
load was reasonable or, in some respects, inconsistent with
their rescheduling of class sessions, is irrelevant to the
question of the negotiability of their proposal. Thus, while
the District was under no obligation to accede to the workload
reduction, the proposal was lawful and the District was
obligated to respond.
The hearing officer's conclusion that successful
negotiations on other matters negated the refusal-to-negotiate
charge must be considered in light of the totality of the
negotiations which took place. Pursuant to this principle, the
employer's refusal to agree to a specific proposal may be
lawful when viewed in the context of the employer's general
good faith negotiation posture.3 However, the principle is
not applicable where the employer refuses to discuss a proposal
because he denies its negotiability.4 In such a case, the
3NLRB v. Virginia Electric & Power Co. (1941)
314 u--::S:-469 [9 LRRM 4051); NLRB v. Stevenson Brick &
Block Co. {4th Cir. 1968) 393F.2d 234 [68 LRRM 2086].
4see Johns. Swift & Co. (1959) 124 NLRB 394
[44 LRRM 1388].
6lawfulness of the employer's position turns on the negotiability of the subject. Where the subject is negotiable, the employer's agreement on other matters is irrelevant. Here, in light of our finding that released time is a mandatory subject, the District's flat refusal to negotiate on this matter violated section 3543.S(c). SCFA sought to include evidence that released-time proposals, similar to its own, have been agreed to in other districts and that similar arrangements had been utilized by the District for other purposes. The hearing officer refused to allow this evidence, apparently based on a reading of Magnolia School District (6/27/77) EERB Decision No. 19.5 SCFA's exception to the hearing officer's ruling is well taken. The question as to the reasonableness of the number of employees granted released time or the amount of released time granted, is one of fact and depends upon the particular circumstances in which negotiations take place. Evidence of practices in other districts may be relevant and probative. The hearing officer did not address the matter of the negotiability of the number of employees to be released without loss of compensation although this was raised by the charge. Sprior to January 1, 1978, PERB was called the Educational Employment Relations Board. 7
His silence may have been the result of his view that no legal proposal had been presented by SCFA in the first instance. As we stated in Anaheim, supra, the full requirements of section 3543.1 are within the scope of the negotiations. An employer may violate its section 3543.5(c) obligations by refusing to negotiate either the amount of time employees are to be released without loss of compensation or the number of employees to be released. Neither aspect of section 3543.1 is subject to the employer's unilateral determination. The District sought to reopen the record so that it could give evidence demonstrating that the SCFA's proposal would result in a windfall to the employee negotiators and that its own grant of released time was reasonable (Case No. S-CE-89, Motion to Reopen the Record). We now deny that request. The District's obligation to negotiate over released time is absolute and is not affected by the quality of the unilateral act it took in violation of its duty under section 3543.5(c). 6 Similarly, while an alleged windfall to the employee negotiators might constitute, as a negotiating position, a valid basis for the District's rejection of SCFA's proposal, it would not constitute justification for the 6The Board also finds that the District's conduct violated section 3543.5 (b). San Francisco Community College District (10/12/79) PERB Decision No. 105. 8
District's refusal to respond in the context of good-faith negotiations. ORDER Upon the foregoing facts, conclusions of the law and the entire record in this case, it is hereby ORDERED that the Sierra Joint Community College District shall: 1. CEASE AND DESIST from refusing to negotiate with the Sierra College Faculty Association on the subject of released time without loss of compensation for employee representatives and the number of employees to be released for the purpose of conducting negotiations; 2. Immediately prepare and post at all school sites and all other work locations where notices to employees are customarily placed, copies of the Notice attached hereto as an Appendix. Such posting shall be maintained for a period of 30 workdays. Reasonable steps shall be taken to ensure that said Notice is not reduced in size, altered, defaced or covered by other material; 3. Notify the appropriate regional director of the Public Employment Relations Board, in writing, within twenty (20) workdays from the date of this decision, of what steps the District has taken to comply herewith. The Sierra Joint Community College District's motion to reopen the Record is DENIED. 9
This ORDER shall become effective immediately upon service of a true copy thereof on the District. By: Chairman Barbara D. Moore, Member Member Tovar concurring: I concur. ire'Re Tovar, Member 10
Appendix: Notice. NOTICE TO EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD An Agency of the State of California After a hearing in which all parties had the right to participate it has been found that the Sierra Joint Community College District violated sections 3543.S(b) and (c) of the Educational Employment Relations Act by refusing to meet and negotiate regarding released time without loss of compensation for representatives of the exclusive representative involved in negotiations. As a result of this conduct, we have been ordered to post this notice. We will abide by the following: We will not refuse to meet and negotiate with the exclusive representative over the subject of released time for its organizational representatives. SIERRA JOINT COMMUNITY COLLEGE DISTRICT By: _________ .,-- ________ _ Authorized Agent Dated: ________________ _ THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR THIRTY (30) WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE DEFACED, ALTERED OR COVERED BY ANY MATERIAL. 1
STATE OF CALIFORNIA PUBLIC EMPI.DYMENT RELATIONS BOARD In the lli.tter of: SIERRA COI.J.EGE FACULTY ASSOCIATION, Charging Party, v. SIERRA JOINT COMMUNITY COI.J.EGE DISTRICT, Respondent. ) ) ) ) ) Unfair Practice Case No. S-CE-89 PROPOSED DECISION (6/23/78) ) ) ) ) ) ) __________________,) Appearances: Darrel D. Tipton and John Bodney, Attorneys, for Sierra College Faculty Association; Paul M. Loya, Attorney (Paterson and Taggart) for Sierra Joint Conmunity College District. Before Terry Filliman, Hearing Officer. PROCEDURAL BACKGR.OillID On October 11, 1977, the Sierra College Faculty Association (hereafter the Association or Charging Party) filed an tmfair practice charge against the Sierra Joint Corrm.m.ity College District 1 (hereafter District) with the Public Fmployment Relations Board ') ,t;.. (hereafter 1 LSierra Joint Conmunity College District is located in Placer County and is joint with parts of Nevada, El Dorado and Sacramento Counties. The District has an average daily attendance (AfJA) of 5,303. Annual Report, Financial Transactions Concern~ School Districts of California, FiscalYear 1975-76, prepared by Kenne Cory, State Controller at pp. 526-527. 2Effective January 1, 1978, the Educational Employment Relations Board was renamed the Public Employment Relations Board. 1
PERB) alleging violations of Government Code sections 3543.1, 3543.3 and 3543.5(b) and (c). 3 On October 27, 1977, the District filed an answer to the charges. A formal hearing was held on January 5, 1978 at the PERB Sacrarrento Regional Office. At this hearing, the Association withdrew those aspects of the charge 'Which alleged that the District had violated &ections 3543.3 and 3543.5(c) by taking negotiable rratters before the faculty senate. FINDINGS OF FACT The parties stipulated that the Association is an employee organization within the rreaning of the Educational Employment Relations Act4 (hereafter Act) and the Association is the exclusive representative for employees in a certificated teacher unit. Additionally, the rarties ~tipulated that the District is an employer within the rrean:L."'1g of the Act. These stipulations are accepted without further inquiry. Negotiation Sessions Early in the 1976-77 school year, several instructors 5 employed at Sierra College prearranged their teaching schedules so that they would 3 A11 references are to the GovernnEI1.t Code unless otherwise indicated. 4Government Code section 3540 et seq. Sni.e evidence indicates that the follav."d...~g employees of the District were present at the September 8, 1977 negotiation rreeting as members of the Association's negotiating team: Bruce Broadwell, Patricia Robertson, Clair Parsh, D::m Edgar, Garvin Jabusch, and Evie Cogley. At the September 20, 1977 meeting two other employees were present inaddition to the above listed merribers: Paul Linder and Pauline Bond. These are the in$t"l:UCt01;"$. who apparentJy_ prearra!lged their schedules in order to have time for negotiations. 2
have no scheduled classes between 1:30 to approximately 5:00 or 6:00 p.m. on Tuesdays and Thursdays. This prescheduling was to give the instructors certain hours free from scheduled instruction and office hours durinp; 'Which the:v could negotiate with the District as m.eEJbers of the Association's ne?,otiatinp, team. The Association's negotiating team ITElTlbers decided to schedule "free t:irre" for negotiating so as to preclude interferences with scheduled class time. This scheduling of "free time" occurred without :input or participation by the District although the schedule requests were accepted by the District's administration. Although five negotiation sessions were originally scheduled, only two sessions were held - one on September 8, 1977 and the other on September 20, 19770 At the first negotiation session, the Association presented proposed ground rules for the 1977-78 negotiation sessions. The purpose of this meeting was to arrive at sane agreanent on the ground rules for future meetingso ~rticle 4 of rhe ARRnciRtinn'R proposed ground rules presented a request for released time as follows: "4o SCFA representatives shall be provided with necessary release time without loss of compensation for the purpose of negotiation sessions. Necessary release time shall be 1/5 of the full t~ loado" The Association through its spokesperson, Mro Richard Baker, specifically asked for released time for the September 8th meeting and for future meetings in accordance with its interpretation of 'What release t:i..I!"le meant ·within the camn.mity college setting. In response, the District spokesperson, Ms. Edna Francis, said that the District team would have to consult with the Board of Trustees about the concept of released time. Moreover, Mso Francis concluded that 3
no released tine, as the term was defined by the Association, would be granted for the first session. Initially, about ten proposals were submitted by the Association. Both parties discussed the proposals and each party submitted co1.mter- proposals regarding rrost issues. D-.rring the first session agreement was reached on rmst of the proposals. At the second negotiation session, conducted on September 20, 1977, the District asserted that no released time would be granted to Association members according to the terms of the Association's released time proposal. The District made no counterproposal for an alternate solution to the Association's request. However, at this second meeting, Mr. Baker made an informal request to hold negotiating meetings in the ITXJrning. Ms. Francis maintained that rorning meetings were inconvenient for administrative r.iembers of the rnanagerrent negotiating team and therefore ITXJrning meetings were unacceptable. She asserted that the scheduled afternoon meetings were better suited to both teams' convenience. At the September 20 rreeting, it was generally agreed by both sides that there was a technical question as to what section 3543.l(c) meant by "released timeo" The Association maintained that further negotiations could not continue tmtil the "released time" issue was resolvedo Thereafter, the Association filed an tmfair practice charge in order to let the PERB resolve the problem. At no time did the District propose to call a halt to the sch.:duled negotiation sessj_ons. Both negotiation sessions took place from 3:00 t:::> approximately 5:00 p.m. During these two sessions none of the Association team members had scheduled classes or scheduled office hours. fureover, it is the 4
District's position that if any of the instructor/teammer:ibers had had office hours or classes scheduled during negotiations, those instructors muld have been relieved of their required duties. At both sessions there appeared to be considerable interchange between the parties as to the Association's proposal for released time. The Association interpreted released time as a release from any portion of the undefined faculty workday - including teaching, office hours, corrmittees and homework or preparation time - which contributes to the negotiating team mer::iliers' professional responsibilities. The Association's request for a one-fifth reduction in workload assumed that actual lost time could not be measured and a calculated average IIIl.lSt be arrived at. The District's position \vas that released time entailed release for those mer::iliers of the negotiating team who were actually scheduled for class or office hours during negotiations. At one of the sessions, Ms. Francis asked if what the Association really was requesting was "compensatory time off". There was some deliberation and discussion arrong the /\Ssociation team members about the question but ultimately Mr. Baker replied that, in substance, that was what was requested. At both sessions, neither the District nor the Association made any concessions with respect to the Association's released time proposal. Neither side made any counterproposals even though there was considerable discussion as to what was meant by the proposal as submitted and what the Rodda Act required (infr.g). Near the end of the second session, after neither party would relent or at least submit c01mterpropbsals the District indicated that it had tenninated its discussion of the released tiine proposal. 5
Subsequent to the two negotiation rreetings, Mr. Baker discussed with Ms. Francis over the phone the subjects of released tirne proposals and future meetings. Ms. Francis once again stated that released tirne would not be granted as requested. Faculty Workload The evidence indicates that there is no uniform workday or vv0rkweek for instructors in the District. Instead there are several District policies which limit and define portions of the workday and "WOrk- week. A full-tirne teaching load consists of 15 hours per week per instructor. If an instructor teaches a lab, the full-time load is 18 hours. In addition to this classroom time, each full-time faculty nanber is required to maintain seven hours of scheduled office or conference hours per week. Both office hours and classroom hours are scheduled through the school's administration and may occur during rrorning, afternoon or evening hours. As a guide for scheduled activities, District policy dictates that when conference hours are added to the full teaching load each full-time 6 instructor is required to be on canpus a minimJm of 25 hours per week. Additionally, each instructor IlllJSt be on campus a rninim..lrn of three (3) hours per day. In addition to scheduled obligations, instructors are expected to expend time for class preparation, attendance recording, grading papers and participating as :rnerrbers of faculty comnittees. These unscheduled obligations can be carried out whenever the instructor's tirne is available, unless such obligations are fonnally scheduled. °To arrive at the 25 on-campus hours, the District adds the full-time teaching load to the office hour requirenEnts. District policy allows for three "fudge" hours if an instructor does not teach a lab. These three "fudge" hours include comnittee ti.rre which may be scheduled for the ir1s trt1ctor. 6
Generally the time for class preparation is considered to vary between one and three hours for each hour of instruction due to each instructor's individual abilities and experience. Although total workweeks may vary greatly from individual to individual, the evidence indicates that full-time instructors may work 40 to 45 hours per week. In 1974, a Sierra Corrmmity College faculty corrrnittee prepared a self-study report 'Which was approved by the District and submitted to the state accreditation team. The report recognized a concept of "assigned time" 'Which was tilre granted to instructors for extra preparation or for developing new programs. The "assigned time" was recognized by the District as an offset to classroom time, thus reducing the teaching load by a proportional am::mnt of non-classroom duty hours. It is the Association's position that this concept of "assigned time" is synonynous with "released tilre"o Several examples of "released time," as understood by faculty members, were presented at the hearing. One witness, Claireva Cogley, a current counsel member for the Association, wclS a forrner president of the Association under the Winton Act. 7 Ms. Cogley as forrrer president of the Association was granted full-day time off from her duties for 16 days (eight days per year) in order that she could attend state meetings. Mr. Clair Parsh, a negotiating team merriber for the Association, was formerly a division chairperson in the business departrrent at Sierra CoIIIIn.lility College. As a former division chairperson he received a 1/5 7The Winton Act, repealed by the Educational Fnployment Relations Act, was found in Education Code section 13080 et seq. 7
reduction in his teaching load as well as extra compensation for his position as chairperson. It appears that this reduction plus compensation occurred during the operation of the Winton Act. In the past, the District has granted released time to members of In the past, the District has granted released tilre to menbers of the classified employee organization who attended approximately the classified employee organization who attended approximately 10 or 11 negotiating sessions. In so doing, the District agreed to a 10 or 11 negotiating sessions. In so doing, the District agreed to a block grant of hours for released time for manbers of the negotiation team as against a variable release from specified duties. In contrast, the District did not propose a total nurrber of hours of released time for the Association's negotiating team menbers who attended the sessions held September 8 and 20, 1977. ISSUES 1. Did the District deny the charging party its rights under section 3543.5(b) by refusing to grant reasonable released time as required by section 3543.1? 2. (a) Did the District refuse or fail to negotiate in good faith the subject of released time and thereby violate section 3543.5(c)? (b) If not, did the District refuse or fail to negotiate in good faith the subject of compensatory time off and thereby violate section 3543.5(c)? CONCLUSIONS OF I.AW I. 3543. 5 (b) The Association maintains that its rights were denied by the District due to the latter's refusal to grant the Association's request for a block grant of released time during the year. The Association, pointing to 8
the scheduled and unscheduled work week of its full-tirr:e faculty members, seeks tirr:e off with compensation from duties 'Which might have been perfonned during the negotiation sessions although $UCh duties were not scheduled to occur during those sessions. The denial of the Association's request is alleged to be a violation of section 3543.S(b)~ On the other hand, the District contends that the Charging Party's rigid proposal for released tirr:e was unreasonable because it did not come within the meaning of released tirr:e as intended by the Legislature and because it was unnecessarily inflexible to changing circumstances. Furthenrore, it is the District's position that the Association actually sought compensating tirr:e off in return for the tirr:e its faculty members spent in negotiation sessions. Therefore, due to the nature of the request for tine off with compensation, the District feels its refusal to grant the request does not constitute a violation of the Act. The resolution of this element of the tmfair charge requires some clarification of the legislative intent behind the released tirr:e provisions. 1-breover, it is necessary to set some parameters for the meaning of "reasonable released tirr:e" in order to determine if it was tmlawfully refused or denied. Section 3543.1 provides the employee organizations with certain rights. Section 3543.l(c) provides: (c) A reasonable rnJ1:rber of representatives of an exclusive representative shall have the right to receive reasonable periods of released tine without loss of compensation 'When meeting and negotiating and for the processing of grievances." 8section 3543.S(b) provides that it shall be tmlawful for a public school employer to: (b) Deny to employee organizations rights guaranteed to them by this chapter.
Section 3540.l(h) provides in pertinent part: "(h) Meeting and negotiating rreans meeting, conferring, negotiating, and discussing by the exclusive representative and the public school employer in a good faith effort to reach agreement on matters within the scope of representation ••• '' Sections 3543.l(c) and 3540.l(h) fil.lSt be read together in order to determine the ti.ire period which released ti.ire covers. Released ti.ire should be granted when the employer and exclusive representative ~et, confer, negotiate and discuss in good faith matters which co~ within the scope of negotiation. These two sections indicate that released ti.ire is a trade-off or exchange for ti.ire spent negotiating and that the representatives of the exclusive representative shall be released from certain obligations when negotiating. It does not follow- that the legislation intended that released ti.ire should be granted in addition to ti.ire spent negotiating; otherwise the Legislature would have so provided. Sections 3543.l(c) and 3540.l(h), taken together, indicate that the Legislature intended that released time be granted in order to facilitate face-to-face ~et and negotiation sessions. Public school employers m.1St provide reasonable periods of released ti.ire to the representatives of an exclusive representative to prorrote easier access to the negotiating process than would otherwise be possible. This rationale for released ti.ire should not be construed generally to extend the released time concept to include time off from employment duties which do not conflict with negotiation sessions. To allow too broad an interpretation of released time, as suggested by the Association, 'WOuld mreasonably burden the employer. 10
Nowhere in the Act is it fotmd that the Legislature intended that the employer must bear an extra financial burden, beyond that contemplated, when meeting and negotiating. In M:3.gnolia Educators Association (EERB Decision No. 19, Jtme 27, 1977), the Board for the first time treated the issue of released time. In that case, the Board found that in the face of an employee organization's repeated requests for negotiation sessions during classroom hours, as well as similar requests by a mediator, it was a per se violation of the Act for the District to restrict released time to one half-hour of non- teaching time at the end of the instructional day. That per se violation was due to the "rigidity and inflexibility of the District's policy" regarding released time. Id. at p. 4. The Board, in M:3.gnolia, went on to say: "'Reasonable released time' means, at least, that the District has exhibited an open attitude in its consideration of the armunt of released time to be allowed so that thearmunt is appropriate to the circlllllStances of the negotiations ••• A district's policy does not provide forreasonable periods of released time if the policy is unyielding to changing circumstances." Id. at p. 5. Federal precedent on the subject of released time is not directly relevant because there is no section of the National Labor Relations Act (hereinafter the NLRA) as amended, 9 which is comparable to section 3543.l(c). Considering both the legislative intent of section 3543.l(h) and M:3.gnolia, it is concluded that released time should encompass a release 929 U.S.C. 150 et seq.; the National Labor Relations Act was amended by the Labor Managem2nt Relations Act in 1947. 11
from those scheduled activities which the representatives of the exclusive representative would otherwise be obligated to perform during the negotiating sessions. However, M:3.gnolia adds one mre qualifier to released time require:rrent. The Board, therein, considered several factors which bear on reasonableness of released time, particularly: "[R] easonable needs of the District, - the nu:rber of hours spent in negotiations, the nurrber of errployees on the employee organization's negotiating team, the progress of the negotiations and other relevant factors." Id., at p. 5. Therefore, reasonable released time entails a release from scheduled activities which coincide with negotiation sessions provided that the released periods are reasonable according to the circumstances of each case. Thus the reasonable provision could conceivably extend released time beyond the b01.mds of coinciding scheduled duties. The Association takes the position that each negotiating faculty meniber should be released from 1/5 of his or her teaching load and its attendant preparation and paper grading obligations, regardless of whether the negotiation sessions occur during or after classroom instruction periods. 11Jreover, the Association seeks compensation for the periods of release even though there may be no overlap with negotiation sessions. This concept of "reasonable release time" arrm.mts to a request for time off from non-coinciding duties with compensation in exchange for time spent meeting and negotiating. It is recognized that faculty menibers at Sierra Corrm..mity College may work long hours in addition to their scheduled duties. Added together, the working hours of an instructor could exceed 40 or even 50 hours per week. These long hours may be expected of professional college 12
instructors because of the nature of their work. However, aside from their scheduled duties,it is evident that these college instructors can perfonn their tm.Scheduled duties when they so desire with the sole proviso that the work be accomplished. A hypothetical extension of the Association's request for "reasonable released time" is necessary to see the impracticality of the request. If negotiation sessions were to occur on a weekend, by Im.1tual agreement, the Association could be seeking to have its negotiating team receive extra pay and time off from preparation time that they chose to perfonn on a Saturday or Sunday. Thus the Association's negotiating manbers w0uld be receiving "released time" for periods other than ~eting and negotiation, in contradiction of section 3543.l(c). If the Legislature would have envisioned such a concept of "reasonable released time" it could have so provided. Furthenmre, it carm.ot be found that the District's released time policy is so rigid and inflexible as to arrount to a per se violation of -,-, the Act. 1·Jc1gno M~ 1• ia, supra, at p.~~. The evidence indicates that the negotiating faculty merIDers independently agreed to arrange their schedules so that the negotiation sessions would not interfere with their scheduled classroom duties. llireover, the evidence indicates that the District would have released faculty negotiators from scheduled office hours and teaching duties if an overlap with negotiation sessions had occurred. Nevertheless, the District did agree to hold the ~etings at the times prearranged by the Association. Unlike Magnolia, no formal requests were made by the Association for negotiation sessions during scheduled class hours. Only an informal suggestion 13
was made at the second negotiation rreeting of September 20, 1977, to hold future sessions in the rrorning hours. The District indicated its dissatisfaction with the idea and indicated that it wanted to hold sessions during the hours as originally scheduled and suggested by the Association. Without rrore evidence the charging party has failed to show that the District's policy was fatally rigid and inflexible. In contrast to this holding, the Association argues that' if it is a per se violation to refuse to grant released time during the instructional day (as in 1:1agnolia), then it rrust be a per se violation of the Act to refuse to grant released time outside the instructional day. This argument fails for several reasons. 1:1agnolia involved a distinctly different fact pattern. As noted above, there were several requests for negotiation sessions during teaching hours, tmlike the instant case. The instant case involves a corrr.JLmity college teaching environment i;,-Jhich is much less structured than that fotmd in Magnolia, a K-12 district. In the instant case, tmlike Magnolia, the District policy tcJward released time was not fatally rigid and inflexible. And lastly, the instant case does not involve a request for "reasonable released time" as contemplated by the Legislature. In conclusion, it is fotmd that the Association did not make a request for reasonable releaskd time. The request was for compensatory time off. Unlike the released tinE requirement, the Act does not require that a public school employer grant compensatory tirrE off although that matter may be negotiated. 14
Based on the foregoing, it is found that the Association did not prove by a preponderance of the evidence that the District's released time policy was unreasonableo Therefore, the District did not violate sections 3543ol(c) and 3543o5(b) by denying the Association's request for "reasonable released time." II. 3543o5(c) A. The Charging Party contends that the District has violated section 3543.5(c) by refusing to negotiate the issue of released time. The Charging Party maintains that released time is a mandatory subject of negotiation, and a failure or refusal to negotiate such a subject does not require an inquiry into elements of good faith. The District, both during the hearing and in its brief, asserts that released time is a ground rule and is not a proper subject of negotiations under the Rodda Act. "M::>re specifically it is argued that released time is a right held by the exclusive representative which may be enforced without resorting to the negotiations process. Section 3543.5(c) provides that it shall be an unfair practice for a public school employer to: (c) Refuse or fail to meet and negotiate in good faithwith an exclusive representative. Section 3543. 2 provides in perti..nent part: The scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment. 'Tenns and conditions ofemployment" 1:leail health and welfare benefits as defined by section 53200, leave, transfer and reassigrn::ent policies, safety conditions of employment, class size, procedures to be used for the evaluation of employees, organizational security pursuant to section 3546, procedures for 15
processing grievances pursuant to sections 3548.5, 3548.6, 3548.7, and 3548.8, and the layoff of probationary certificated school district e!!lployees, pursuant to section ¼-959. 5 of the Education Code. • •• All matters not specifically enumerated are reserved to the public school employer and may not be a subject of u:neeting and negotiatingo•• B. The PERB has not dealt directly with the issue of whether released time is a mandatory subject for meeting and negotiating. However, in M9.gnolia, the PERB treated the subject of released time in a somewhat different setting (supra). In M9.gnolia, the Board took the position that a district IInJSt ma.intain "an open attitude in its consideration of the arrolIDt of released time to be allowed so that the arrolIDt is appropriate to the circumstances of the negotiations." Magnolia, supra, at 5. Since a district is to consider the am:>lIDt of released time, it is con- cluded that it IInJSt consider the subject of relea$ed time as welL fure importantly, since released time includes the concepts of wages 10 and hours 11. it naturally follows that released time is within the ambit of scope of representation according to section 3543.2. Therefore, it is folIDd that the subject of "reasonable released time" comes within the scope of mandatory negotiating subjects. 10 section 3543.l(c) notes that "reasonable periods of released time without loss of compensation" is to be granted when rreeting and negotiating. AB noted above, the Legislature contemplated a release from scheduled duties with no similar release from wages. This treatrrent of wages comes within the scope of mandatory negotiating subjects. 11"Hours" are encompassed in the concept of released time because the negotiating team member is relieved from scheduled duties which he orshe is expected to perform during coinciding negotiating sessions. 16
The fact that released time is a statutory right created by section 3543.1 cannot pre-empt its direct relationship to the wages and hours of members of the Association's negotiating team and its inclusion as a mandatory subject of negotiations. Therefore, an employer is allowed to unilaterally adopt a released time policy which meets mininrurn standards of "reason- ableness", but yet is still required to meet and negotiate upon proposals designed to expand or other- wise m:xlify released time. However, the Association was not presenting a proposal for released time. Instead, it submitted a request for ccmpensating time off. Both sides were arguing different interpretations and different subject matter. Therefore, it is found that the District did not refuse to negotiate the mandatory subject of released time as no proposal was presented to it on the subject. C. In order for the District to have violated its duty to negotiate mandatory subjects in good faith, it is necessary to find that "compensatory time off" canes within the scope of mandatory negotiating subjects. Federal precedent is son:EWhat relevant 12 to the subject 121:Jhere state.labor legislation is essentially the sarre as federal legislation, interpretation of the state statute should be made in light of the federal precedent. Fire Fighters Union v. City of Vallejo (1974) 12 Cal. 3d 608, 617, [16 Cal..Rptr. 507]. ' 17
of compensatory tiw= as a mandatory subject of negotiation since section 8(d) 13 of the NI.RA, as amended, is similar to section 354302 of the Rodda Act in delineating the bounds for mandatory subjects. Although the NLRA does not make ccrupensatory time off, specifically, a mandatory subject, the NLRB has held that arrangements for negotiations are a mandatory subject of bargaining. N.C. Coastal t-btors Lines (1970) 219 NLRB 1009 [90 LRRM 1114]; General Electric Co. (1968) 173 NLRB 253 [69 IRRM 1305]. But rrore importantly, since section 3543.2 uiakes wages and hours of employment mandatory negotiating subjects, it follows that "compensatory time off'' falls within those enumerated subjectso This conclusion follows because canpensatory time off entails, at least, time off frm hours of employment, with or without canpensation, in exchange for some duties or activities performed by the employee. D. To find that the District violated S=ction 3543. 5(c), it ITillSt be found that the District failed or refused to negotiate in good faith the Charging Party's proposal for canpensatory time off. The duty to negotiate in good faith may be violated without 1329 U.S.C. 158(d), section 8(d) in pertinent part states: (d) For the purposes of this section, to bargain collectively is the performance of the rrutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of e:nployrnent .•. 18
a treatment of the good faith element 'Where it is found that a party with the duty has refused in fact to negotiate mandatory subjects. NI.RB v. KATZ (1962) 369 U.S. 736, 743; see also NI.RB v. Allison and Co. (6 CA 1948), 165 F.2d 766, cert. den., 335 U.S. 814; rehearing den., 335 U.S. 905. Thus it v.0uld appear to be a per se violation of the duty to negotiate in good faith if it were found that the District in fact refused to negotiate the compensatory time off issue presented by the Association. While the District contends that the Association's proposal, 'Whether characterized as released time or compensatory time, was not a negotiable issue, it nevertheless asserts that the management negotiating team did attempt to reach agreement over the issue. The Association presented its proposal for compensating time duriP..g both negotiation sessions. It !Il.ade no formal alterations in its proposal but adhered to it maintaining that it was reasonable and encompassed the "released time" requirement as found in section 3543.l(c). In reply to the Association's requests, the District responded with 'What it considered released time to be. At both negotiation sessions, the District explained that there v.0uld be no released time as proposed because Association team members were not actually scheduled for classes. One witness for the District, Mr. Kolster, stated that if the 19
Association team members had been scheduled for duties during the negotiation sessions, those members vJOuld have been released from their scheduled duties without loss of compensation. It was at the second session that the District asked if what was being sought was compensatory time off. To this the Association, through Mr. Baker, replied in the affirmative. While the evidence presented by the parties as to exactly 'What transpired at the negotiating table during the remainder of that meeting is confusing, the record does not support the conclusion that the District refused further negotiations on the subject of released time or canpensating time. The fact that the District may have declined further discussion of the released time proposal offered at that time is not conclusive evidence that the employer's position was one of adamant refusal to negotiate the issue. It did agree that if sessions were held during class hours that released time vJOuld be granted. Neither the District nor the Association presented any explicit cotmterproposals on the subject. FurtheTIIDre, it was the Association 'Which decided to terminate future negotiating sessions, a short time later during the same meeting, because it wanted the matter of released time to be determined by the PERB. Had negotiations continued, it is possible that the District's reluctance to carry on further discussions of the canpensating time proposal could have developed into a violation. One might infer from its position at the hearing regarding the non-negotiability of 20
released time that the District was headed toward conduct constituting a per se refusal to negotiate. But that is mere conjecture. Had the Association persisted in its negotiation efforts, it is possible that some resolution of the proposal could have been effected. Instead, all negotiations were discontinued. E. In the alternative to finding a "per se" violation, Charging Party apparently asserts that the District's conduct regarding the released time proposal is indicative of overall surface negotiating attitude in violation of section 3543.S(c). If a party derronstrates an tmyielding rigidity during negotiations which makes negotiations a futility, it will be found that such party has refused to negotiate in good faith. Borg Warner Controls (1972) 198 NLRB 726 [80 IBRM 1790]. In order to find a refusal, it is necessary to examine the overall conduct of the parties during negotiations and detennine whether the District negotiated with a desire to reach an agreement. Ibid. Here it appears that there was considerable interchange by both parties over the "released time" request. Although there was no agreement and an absence of concessions by both sides on this issue, it carmot be found that such a stalemate, by itself, supports a finding that the District did not negotiate in good faith. To this end, an obligation to negotiate in good faith does not require that the parties reach an agreement and does not compel either party to make 21
concessions. NLRB v. American Ins. Co. (1952) 343 U.S. 395 [30 LRRM 2147]. Chevron Oil Co. v. NLRB (CA 5 1971) 442 F.2d 1067 [77 LRRM 2129]; Proctor and Gamble Manu- facturing Co. (1966) 60 NLRB 334 [62 LRRM 1617]. The evidence indicates that approximately ten (10) proposals were submitted by the Association. D.rring both negotiation sessions, both parties discussed the proposals and agreerrent was reached on about eight issues by the second session. Both parties submitted cotmter- proposals to rrost of the issues which were contested. The exception was with the released tin:e proposal which received explicit comterproposals from neither side. The NLRB has held that an employer, engaged in hard bargaining, did not violate its duty to bargain in good faith where it was shown that the employer was willing to rreet with the mion, discussions of proposals and comterproposals took place and the parties actually reached agreerrent on Ill:3IlY issues. Dierks Forest, Inc. (1964) 148 ~TI..RB 923 [57 LRRM 1086]. Given the overall conduct of the District during the negotia~ion sessions, it is fomd that it did derronstrate a willingness to arrive at sorre reasonable agreement. The District did submit comterproposals and did arrive at agreerrent on rrost of the proposals in contrast to the Association's claim of surface bargaining. Cf. NLRB v. Darlington Veneer Co., (CA 4 1956) 236 F.2d 85 (enf'g 113 NLRB 1101) [38 LRRM 2574]. 22
The District's overall negotiation conduct dem:mstrates that it did m::,re than merely reject proposals as submitted by the Association. Cf. Fitzgerald Mills Corp, v. NLRB (CA 2 1963) 313 F. 2d 260, (enf'g 133 NLRB 877) [52 LRRM 2174]. Therefore, it is fom.d that in the absence of further proof the District negotiated in good faith and did not violate section 3543.5(c). PROPOSED ORDER It is the Proposed Decision, based upon the above findings of fact and conclusions of law and the entire record of the case that: 1. The District did not fail to grant "reasonable periods of released tine" to the Association's negotiating team and thereby did not violate section 3543.5(b); 2. The District did not refuse to negotiate about the subjects of released time or compensatory time off and thereby did not violate section 3543.5(c); 3. The Unfair Practice Charge filed by Sierra College Faculty Association is hereby DISMISSED. Pursuant to California Administrative Code, title 8, section 32305, this Proposed Decision and Order shall become final on July 17, 1978 m.less a party files a timely staterrent of exceptions within twenty (20) calendar days of service. See California Administrative Code, title 8, section 32300. Dated: June 23, 1978 23 Terry Filliman Hearing Officer
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