San Jose Community College District (PERB 0240E)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN JOSE COMMUNITY COLLEGE 	DISTRICT
CHAPTER, CTA/NEA,
Charging 	Party,
v.
SAN JOSE COMMUNITY COLLEGE DISTRICT,
Respondent.
Case No. 	SF-CE-351
PERB Decision No. 	240
September 	30, 	1982
Appearances; 	Paul M. 	Loya, Attorney 	(Loya & Associates) 	for
San Jose Community College District; 	James E. 	Keller, 	Attorney
(LaCroix 	& Schumb) 	for 	San Jose 	Community College District
Chapter, CTA/NEA.
Before Tovar, Jaeger, and Morgenstern, Members.
DECISION
JAEGER, 	Member: 	This case 	is before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed 	by 	both 	the
San Jose 	Community College 	District 	(District) 	and 	the 	San Jose
Community College District Chapter, 	CTA/NEA 	(Association).
The District 	excepts 	to 	those 	portions 	of 	the 	hearing
officer's 	proposed 	decision 	finding 	that 	the 	District 	violated
subsections 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations 	Act 	(the 	Act)1 when 	it 	unilaterally
1The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Government Code 	section 	3540 	et 	seq. 	All 	statutory 	references
are 	to 	the Government Code 	unless 	otherwise 	noted.
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adopted 	a 	tentative 	school 	calendar 	that 	changed 	the 	past
practice 	concerning 	the 	date 	on which 	the 	school year 	begins.
The Association 	excepts 	to 	those 	portions 	of 	the 	hearing
officer's proposed decision finding 	that: 	(1) 	the District did
not violate 	subsections 	3543.5(c) 	by withdrawing 	15 days 	of
faculty 	inservice 	training, 	substituting 	15 	additional days of
classroom teaching 	in 	its place, 	and 	(2) 	the District did 	not
violate 	subsection 3543.5 (c) 	by unilaterally fixing 	the 	ending
date 	for 	the 	first 	semester.
FACTS
In 	1976, 	the San Jose Community College District
voluntarily 	joined 	in 	an 	experimental 	statewide 	pilot program
involving 	six community college districts. 	This program, 	as
enacted 	by 	the 	Legislature, 	waived 	the 	Education 	Code2
2Education Code 	section 	41420 	requires 	districts 	to
comply with 	a 	minimum 	175-day 	instructional 	calendar 	in 	order
to qualify 	for 	State 	average 	daily attendance 	funds.
minimum curriculum 	requirement 	of 	175 	teaching 	days 	and 	allowed
the participating 	districts 	to 	adopt 	school 	calendars 	with 	only
160 	days 	of classroom 	instruction. 	The 	remaining 	15 days 	were
devoted 	to 	achieving 	special 	inservice 	teacher 	training,
allowing 	each 	teacher 	to develop 	his/her 	own 	15-day 	training
plan, 	subject to District approval.
In 	the 	1976 	and 	1977 	school years, 	the 	faculty 	taught
146 	days, 	gave 	final examinations 	14 days and enjoyed 	the newly
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created 	15 days 	of 	inservice 	training. 	In 	1978 	the 	faculty
taught 147 days, 	gave 	final examinations 	13 days, 	and again
enjoyed 	the 	same 	15 days 	of 	inservice 	training. 	In each of
these years, 	the school year 	began 	in late August, 	resulting 	in
final 	examinations 	being 	administered 	and 	the 	semester 	ending
prior 	to 	the 	Christmas 	holiday 	recess.3 A 	significant 	number
of 	the 	faculty 	used 	the 	long 	break 	between Christmas 	and 	the
beginning 	of 	the 	second 	semester 	to 	accomplish 	their 	inservice
training 	objectives.
On January 16, 	1979, 	the District Board of Trustees met
intending 	to 	adopt 	the 	school calendar 	for 	the 	1979-80 	school
year. 	The 	trustees 	determined 	they 	would 	withdraw 	from 	the
pilot program and 	return 	to 	the 	regular 	Education Code 	175-day
instructional calendar. 	This was 	motivated 	by 	the 	increasing
number 	of 	students 	requesting 	remedial 	assistance.
The Association, 	learning of 	the District's proposed
calendar 	change, 	made a demand 	to negotiate. 	The District
agreed 	to negotiate 	but, 	due 	to 	time constraints, 	requested
that 	separate 	negotiations 	be 	conducted 	over 	the 	calendar
3The 	District 	argues 	on 	appeal 	that 	these 	facts 	do not
establish 	the 	relevant 	past 	practice 	concerning 	the 	starting
date 	for 	certificated 	service. 	The 	hearing 	officer 	found,
based on 	substantial 	evidence 	in 	the 	record, 	that 	the 	school
year 	had 	commenced 	during 	the 	last week 	in August 	for 	the 	three
years 	immediately preceding 	this 	charge. 	He 	further 	found 	that
for 	the 	two 	years 	immediately preceding 	the 	District's
involvement 	in 	the pilot program, 	the 	term began 	in 	the 	second
week of 	September. 	Hence, 	the 	facts do not demonstrate 	that
the 	tentative calendar 	maintained 	the 	status 	quo.
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issue. 	The Association agreed 	to 	this 	request. 	It 	should 	be
noted 	that 	the 	District 	refrained 	from 	adopting 	a 	school
calendar, 	in light of 	the Association's 	bargaining demand.
At the 	initial negotiation session on January 22, 	1979, 	the
District 	proposed 	the 	same 	school calendar 	that was presented
to 	the Board of Trustees 	for 	adoption on January 16, 	1979.
This particular 	calendar 	called 	for 	175 	instructional days, 	163
days of classroom teaching, 	12 	days of 	final examinations 	and
no 	inservice 	training 	days. 	The 	proposal 	scheduled 	the 	school
year 	to begin on September 4, 	1979, 	with 	final examinations 	to
commence 	after 	the Christmas 	recess.
At 	the 	same 	session, 	the Association 	initially proposed 	160
days of 	instruction, 	148 	days of classroom teaching, 	12 days of
final examinations 	and 	15 	days of 	inservice 	training. 	The
school year, 	pursuant 	to 	this proposal, 	would begin on 	the 	last
Monday 	in August. 	The Association proposal 	essentially
retained 	the 	same pilot 	program calendar 	that 	had 	been 	in
effect 	for 	the 	three previous years. 	There was 	no movement
from the parties' 	respective positions at 	this meeting.
The next session occurred on January 29, 	1981. 	The
Association offered 	a 	counterproposal, 	substituting 	one
additional 	teaching 	day 	for 	one 	inservice day: 	it called 	for
161 days 	of 	instruction, 	149 days of classroom teaching,
12 	days of 	final examinations 	and 	14 	days of 	inservice
training. 	The District did 	not 	accept or 	counter. 	Soon
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thereafter 	the 	District 	requested 	that 	the 	PERB declare 	an
impasse. 	On February 7, 	1979, 	that request was denied by PERB.
The 	next 	negotiating 	sessions 	occurred on February 	8, 	1979
and February 16, 	1979, 	but no movement occurred 	at 	these
sessions.
On February 	20, 	the District 	adopted 	a 	"tentative" 	calendar
for 	the 	1979-80 	school year. 	This calendar 	provided 	for 	the
first 	instructional day 	of 	the 	term 	to 	begin on
September 	4, 	1979, 	the semester 	to end on January 25, 	1980, 	and
the 	spring 	instructional 	semester 	to 	begin 	on
February 	4,1980. 	This 	calendar 	required 	the 	faculty 	to 	teach
as 	a minimum, 	163 days with 	12 days 	for 	final examinations.
The 	District 	presented 	evidence 	that 	the 	adopted 	calendar
was 	by definition 	tentative 	and was 	only 	a mechanism 	to
initiate 	the 	upcoming 	school 	year 	student 	registration
process. 	They contend that, 	as 	such, 	it represented merely a
flexible 	framework 	which 	was 	amendable 	through 	the 	negotiation
process. 	In support of 	its position, 	the District asserts 	the
fact 	that 	the 	number 	of days contained 	in 	the 	"tentative"
calendar 	was 	simply 	the 	state 	minimum 	for 	nonpilot program
community colleges. 	Further, 	the 	"tentative" 	nature of 	the
calendar 	is 	evidenced 	by 	the 	District's 	continued 	involvement
in 	the negotiation process. 	In fact, 	the District made a new
proposal at 	the February 	26, 	1979 	session 	that differed 	from
the 	adopted calendar. 	At 	this 	session 	the District offered 	two
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staff development days, 	ten days of 	final 	examinations 	and 	163
days 	of 	classroom 	teaching.
After 	of 	the 	adoption of 	the 	tentative 	calendar 	the parties
continued 	to negotiate. 	Subsequent 	to 	the District's
February 	26, 	1979 	modified proposal 	the Association 	countered
with 	a proposal calling 	for 	151 	days 	of 	classroom 	instruction,
10 	final exam days 	and 	14 	inservice days. 	The proposal
maintained 	the 	previous 	Association position on 	the 	starting
date, 	ending date 	and 	examination period.
The 	parties continued 	to meet 	in 	five 	more 	sessions 	during
the months 	of March 	and April which produced 	no movement. 	On
March 	19, 	1979, 	however, 	the Association 	filed charges with 	the
Public Employment 	Relations 	Board 	alleging 	that 	the 	District
failed 	to negotiate 	in good 	faith, 	in violation of 	subsections
3543.5(a), 	(b) 	and 	(c) 	of the EERA. 	The factual basis asserted
by 	the Association 	to demonstrate 	the 	alleged 	bad 	faith 	was 	the
adoption 	of 	the 	tentative 	calendar.
DISCUSSION
The 	Tentative 	Calendar
The 	hearing 	officer 	concluded 	that 	the 	District 	violated
subsections 3543.5(a), 	(b) 	and 	(c) 	when it adopted a tentative
school calendar 	altering 	the 	starting 	date 	of 	the 	school year,
thereby 	failing 	to meet 	and 	negotiate 	in good 	faith.
Specifically, 	the 	hearing 	officer 	found 	that 	the 	District
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unilaterally 	altered 	an 	established 	past 	practice 	with 	respect
to 	the 	beginning 	and 	ending 	date 	of 	the 	first 	semester.
For 	the 	reasons 	set 	forth 	below, 	the Board 	reverses 	the
hearing 	officer's 	determination.
In 	Palos 	Verdes 	Peninsula 	Unified 	School 	District/Pleasant
Valley School District 	(7/16/79) 	PERB Decision No. 	96, 	the
Board 	addressed 	the 	basic 	issue 	of 	the 	negotiability 	of
certificated employees' 	workdays. 	The Board concluded 	that 	the
beginning 	and 	ending 	date 	of 	certificated 	service 	for 	the
school year, 	the 	vacation 	and 	holiday 	dates 	for 	certificated
employees, 	and 	extra hour 	assignments 	are 	all matters 	within
the 	scope 	of 	representation4 requiring 	the parties 	to meet
and 	negotiate 	in 	good 	faith 	upon demand.
4The 	scope 	of 	representation 	is 	set 	forth 	at 	subsection
3543.2(a). 	That subsection states:
(a) 	The scope of 	representation 	shall 	be
limited 	to matters 	relating 	to wages, 	hours
of employment, 	and other 	terms 	and
conditions of 	employment. 	"Terms 	and
conditions 	of 	employment" 	mean 	health 	and
welfare 	benefits 	as 	defined 	by 	Section
53200, 	leave, 	transfer and reassignment
policies, 	safety conditions of 	employment,
class 	size, 	procedures 	to be used 	for 	the
evaluation of 	employees, 	organizational
security pursuant 	to Section 	3546,
procedures 	for 	processing 	grievances
pursuant to Sections 3548.5, 	3548.6, 3548.7,
and 	3548.8, 	and 	the layoff 	of probationary
certificated 	school 	district 	employees,
pursuant 	to Section 	44959.5 	of 	the 	Education
Code. 	In addition, 	the exclusive
representative 	of 	certificated 	personnel 	has
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the 	right 	to 	consult 	on 	the definition of
educational objectives, 	the determination of
the content of courses 	and 	curriculum, 	and
the 	selection of 	textbooks 	to 	the 	extent
such matters 	are 	within 	the 	discretion of
the public 	school 	employer 	under 	the 	law.
All matters 	not 	specifically 	enumerated 	are
reserved 	to 	the 	public 	school 	employer 	and
may not be 	a 	subject of meeting 	and
negotiating, 	provided 	that 	nothing 	herein
may 	be 	construed 	to 	limit 	the 	right of 	the
public 	school 	employer 	to consult with any
employees 	or 	employee organization on 	any
matter 	outside 	the 	scope 	of 	representation.
The District 	asserts 	that 	it was 	required 	to adopt 	a
"tentative" 	calendar 	in order 	to set 	into motion 	the 	steps
necessary 	to 	implement 	its 	computer 	registration 	system. 	The
"tentative" 	nature of 	the calendar 	is 	stressed 	by 	the District
to 	establish 	that 	its 	conduct was 	excused 	by 	"operational
necessity," 	citing NLRB v. 	Katz 	(1962) 	369 U.S. 	769 	[50 LRRM
-
2177] . 	We need 	not 	reach 	the 	question of whether 	the District
had 	a valid defense 	to 	its 	adoption of a 	school calendar, 	since
we find, 	under 	the facts 	in 	this case, 	that the District's
conduct 	did 	not 	affect a matter 	within 	the 	scope of
representation. 	As stated above, 	in Palos Verdes, 	supra, we
found 	that 	the 	beginning 	and 	ending 	date, 	vacations 	and
holidays 	and 	hours 	of 	employment 	for 	certificated 	employees 	are
all within 	the 	scope of 	representation. 	However, 	as 	the Board
in Palos Verdes was 	also careful to point out, 	"[I]t's 	clear that
- .. .
the parties 	here 	are 	not 	attempting 	to negotiate 	student
attendance 	dates 	but 	only certificated 	workdays." 	Palos
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Verdes, 	supra at p. 	31. 	Thus nothing 	in Palos Verdes precludes
an employer 	from adopting 	a 	calendar 	for 	the purposes 	of
establishing 	dates 	of 	student 	attendance 	or 	other 	District
operations 	unrelated 	to dates 	of certificated 	service. 	In 	this
case, 	the 	evidence 	indicates 	that 	the District continued 	to
comply with 	its 	obligation 	to 	negotiate 	in 	good 	faith 	over
dates 	of 	certificated 	service 	after 	it 	had 	adopted 	a
"tentative" 	school calendar 	solely 	for 	operational purposes.
By so doing, 	the District 	fulfilled 	its 	duty 	to negotiate 	in
good 	faith 	as 	required by 	the Act.
The 	Substitution of 	15 Days 	of 	Inservice 	Training 	for 	15
Additional 	Days 	of 	Classroom 	Instruction
The 	tentative 	calendar 	adopted 	by 	the 	District 	on
February 	20, 	1979 	did 	not provide 	any 	inservice 	training days
for 	the 	certificated 	faculty. 	As 	noted 	previously, 	the past
practice 	for 	the 	three prior 	years 	had 	been 	to allow 	faculty 	15
days 	of 	inservice 	training 	subject 	to District 	approval. 	The
hearing 	officer 	concluded 	that 	the 	District 	enjoyed 	the 	right
to determine 	what 	the 	faculty did on District 	time. 	He 	went 	on
to 	find 	that 	the 	issue of 	when 	the 	faculty was 	to 	teach 	the
additional 	15 days 	of 	classroom 	instruction was 	a matter 	within
the 	scope 	of 	representation 	because 	it 	touched 	on 	the 	subject
of hours. 	He concluded, 	however, 	that 	there was no violation
because 	the Association waived 	its 	right 	to negotiate. 	This
waiver 	was 	based 	on 	the 	bargaining 	position 	the Association
took. 	The Association maintained 	throughout 	the 	course 	of
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negotiations 	that 	the 	inservice 	training 	days 	should 	be
continued. 	Therefore 	it 	never 	proposed when 	the 	additional
teaching 	days 	should 	be 	scheduled.
We 	agree 	with 	the 	conclusion 	the 	hearing 	officer 	reached,
but 	for 	different 	reasons.
Consistent with 	our 	past decisions, 	we 	find 	that 	the
Association 	failed 	to 	prove 	that 	the 	substitution of 	teaching
days 	for 	inservice days 	affected 	a matter 	with 	the 	scope 	of
representation. 	There 	is 	no evidence 	in 	the 	record 	to 	indicate
that 	the 	District's 	actions 	required 	certificated 	personnel 	to
work more days, 	nor 	did 	it 	lengthen 	the working day, 	increase
the 	number 	of working 	days per 	year, 	or 	affect 	the distribution
of workdays. 	Moreover, 	the evidence 	fails 	to 	indicate 	that 	the
discontinuation of 	the program 	increased 	preparation 	time 	or
caused 	employees 	to 	use 	any duty-free 	or 	off-duty 	time 	to meet
professional development 	requirements. 	Palos Verdes, 	supra;
San Mateo City School District 	(5/20/80) 	PERB Decision No. 	129;
Sutter 	Union High School 	District 	(10/7/81) 	PERB 	Decision
No. 	175. 	Certificated personnel were previously paid 	to work
15 	days per 	year 	at 	inservice 	training; 	the calendar 	that was
adopted 	requires 	teaching 	during 	those 	days 	instead.
Therefore, 	there was 	no evidence presented 	to prove 	that 	the
District's 	actions 	impacted a 	subject within 	the 	scope 	of
representation. 	As 	to 	those 	issues 	related 	to 	the
discontinuation 	of 	the 	inservice 	program which 	did 	affect
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matters within 	the 	scope of 	representation, 	the evidence
indicates 	that 	the parties 	continued 	to 	negotiate 	in good 	faith.
This 	matter 	only concerns 	whether 	the District 	finds 	that
the 	needs 	of 	the 	students 	for 	the 	regular 	175 	days of classroom
instruction 	outweigh 	the 	faculty 	needs 	for 	District-sponsored
inservice 	training. 	We conclude 	that 	this decision 	is properly
reserved 	to 	the District.
Since we 	conclude 	that 	the District 	made 	no 	unlawful
unilateral 	change we 	need 	not 	concern 	ourselves 	with 	the
District's contention 	that 	the Association waived 	its 	right 	to
negotiate 	over 	the 	elimination 	of 	inservice 	training 	days.
ORDER
Based on 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in
this case, 	the Public Employment Relations Board ORDERS 	that
the 	unfair practice 	charges 	in Case No. 	SF-CE-351 	be DISMISSED.
Members Tovar 	and Morgenstern, 	concurred.
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