Grossmont Union High School District (PERB 0313E)

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7 PERC { 14162
GROSSMONT UNION HIGH SCHOOL DISTRICT

California Public Employment Relations Board

Grossmont Education Association, Charging Party, v. Grossmont Union High
School District, Respondent.

Docket No. LA-CE-1264

Order No. 313

May 26, 1983
Before Tovar, Morgenstern and Burt, Members

Unilateral Change -- Workload -- Waiver -- -- 09.642, 43.44, 43.46, 43.621,
72.666School district, by unilaterally changing schedules of special education teachers from four
teaching periods/two preparation periods to five teaching periods/one preparation period, did not
violate its bargaining obligation where evidence indicated that parties intended that contractual
work load provision, specifying that teachers would "normally" be assigned five/one schedule,
should apply to special education teachers. Since contract specifically identified teaching
positions that were excluded from "normal" schedule, contract was clear and unambiguous that
all others, including special education teachers, were subject to five/one schedule, regardless of
past practice.

APPEARANCES:

Richard J. Currier, Attorney (Littler, Mendelson, Fastiff & Tichy) for Grossmont
Union High School District; Charles R. Gustafson, Attorney for Grossmont
Education Association.

DECISION

Tovar, Member: This case is before the Public Employment Relations Board (PERB or Board) on
exceptions filed by the Grossmont Union High School District (District) to a hearing officer's
proposed decision [see 6 PERC 13024 (1981)]. The hearing officer found that the District
violated subsections 3543.5(a), (b) and (c) of the Educational Employment Relations Act (EERA
or Act)1 by refusing to negotiate with the Grossmont Education Association (Association) over a
decision to change the work assignments of certain teachers by replacing a daily period of
preparation time with a period of classroom instruction.

The District acknowledges that in 1980 it changed the work assignments of certain educationally
handicapped department (EH) teachers from four classroom instruction periods and two
preparation periods to five class periods and one preparation period and that it refused the
Association's demands to negotiate that change; it denies, however, that in so doing it violated the
EERA. The crux of its position is that a contract agreed to by the parties in 1978 and in effect at
the time of the disputed change expressly granted the District the authority to assign any and all
bargaining unit members, including EH teachers, to a five class/one preparation period schedule.
By agreeing to a contract which ceded such authority, argues the District, the Association waived
its right to negotiate over any particular District decision to exercise that authority.

The District also raises by way of defense the EERA's statute of limitations, set forth at
subsection 3541.5(a),2 and the limitation on the PERB's authority to enforce contracts, set forth in
subsection 3541.5(b).3 Finally, it argues that, regardless of other issues, the change in teaching

assignments from four classes/two preparation periods to five classes/one preparation period had
only a negligible effect on matters within the scope of representation.4
For the reasons which follow, we find that the parties' collectively negotiated contract constitutes
a complete defense to the Association's charge that the District violated the EERA when it
refused the Association's demand to negotiate.5 We therefore reverse the hearing officer's
decision and dismiss the charge. Because we dismiss on this basis, we find it unnecessary to
resolve the questions of the statute of limitations and the precise extent to which the change in
work assignments affected matters within the scope of representation.6
FACTS
In 1978 the District and the Association completed negotiations on a successor employment
contract covering the members of the certificated employees unit. The agreed-upon term of the
contract was July 1, 1978 through June 30, 1981.
For many years prior to the commencement of the contract, the standard teaching assignment for
the District's classroom teachers had been six working periods, usually composed of five periods
of classroom teaching and one period of preparation time. The preparation period was not duty-
free, but rather was a work assignment during which teachers performed work-related duties.
Some teachers, however, were assigned a six period schedule of four classes and two preparation
periods.
Chief among those assigned a four class/two preparation period schedule were teachers in the
District's special education program. The special education program consists of a number of
District-wide departments, one of which is the educationally handicapped department. The
teachers who are at the core of the instant controversy taught in either of two EH department
programs: learning disabled group (LDG) and special day.
These EH teachers, like most of the special education teachers, had for many years taught a 4/2
schedule. In the midst of the spring semester, 1979, one EH teacher went on pregnancy leave and
another EH teacher resigned. To fill these vacancies, one new teacher was hired and four EH
teachers already on the faculty each agreed to teach an additional class as an overload assignment.
These teachers were paid 25 percent additional salary as compensation for teaching, in effect, a 5-
class, 2 1/2-preparation-period schedule.
The three-year term of the contract, following as it did on the heels of Proposition 13, was a
period of financial difficulty for the District. Numerous cost-cutting measures were considered by
the administration each year, and some were actually implemented. Thus, English department
teachers had frequently been assigned a 4/2 schedule prior to the contract, although the practice
varied among the District's nine high schools and from year to year; over the first two years of the
contract, however, the administration phased out the 4/2 schedules for English teachers and
reassigned them to 5/1 schedules. The record contains no evidence that the Association objected
to these schedule changes.
In the fall of 1979, most of the special education program teachers were converted to 5/1
schedules. EH teachers, however, remained on a 4/2 schedule.
On January 15, 1980, a meeting of EH teachers was held, led by Ronald Blazovic, the chief
administrator for the District's special education program. A member of the Association's board
of directors was in attendance. One topic of discussion concerned planned budget reductions for
the next school year. Dr. Blazovic informed the teachers in attendance that he had been directed
to cut the special education budget by $100,000. One measure which had been proposed to
accomplish this was that EH special day and LDG teachers should teach five classes and one
preparation period. Another meeting was held in April 1980, at which EH teachers questioned Dr.
Blazovic regarding problems they felt would result from the proposed schedule change and
discussed various means by which their responsibilities might be reduced so as to minimize the
impact of the change.

In August 1980, the Association's president met with the District's director of personnel and Dr.
Blazovic, and learned at that time that the EH teachers would definitely be assigned a 5/1
schedule in September. When the school year began in September, the EH teachers were in fact
assigned 5 periods of instruction. On October 2, and again on October 17, the Association
tendered a demand that the District negotiate the subject of workload for EH teachers.7 These
demands were refused by the District.
The Contract
The 1978-81 contract between the parties included, inter alia, articles on recognition and
workload, which provided in relevant part as follows:
ARTICLE I RECOGNITION
. . .
The unit shall include: All certificated employees, including counselors,
psychologists, school nurses, social workers and temporary teachers who work
on a contract basis one semester or more.
. . .
ARTICLE XII WORKLOAD
Standard Teaching Assignment
The principal, after consultation with the department chairpersons, shall
determine the daily time schedule for the bargaining unit members pursuant to
this article.
The standard teaching assignment shall be six periods per day including a
preparation period. A normal teaching assignment period shall be sixty minutes
including passing time. This period may be reduced or increased by the building
principal, but it shall not decrease or increase the total amount of time that a
bargaining unit member shall remain at school. Driver training instructors shall
not receive a preparation period. If the daily schedule for students is divided into
modules of time greater or less than six (6) periods, the standard teaching
assignment shall be equivalent, in classroom time, to the classroom time of a
normal six-period day. All bargaining unit members are entitled to a thirty-
minute duty free lunch.
Members, with the exception of driver training, will normally be assigned five
periods of instruction per day or 25 hours per week, plus a preparation period
which may be used for class preparation, curriculum development, or other
professional tasks.
. . .
Workload
No member shall teach more than twenty-five (25) hours per week except by
mutual consent of the District and the teacher involved. A member, other than
driver training teachers, teaching a sixth (6th) period will be reimbursed for this
extra assignment at one-fifth (1/5) of his/her placement on the salary schedule.
Elsewhere in the contract, a provision on "Transfer" is set forth. That provision is as follows:
ARTICLE XI TRANSFER

DEFINITION OF TERMS
1. Transfer: The voluntary or involuntary movement of one bargaining unit
member from one school to another school. This does not apply to TMR, EMR,
EH or other district-wide programs.
. . .
The TMR (trainable mentally retarded), EMR (educable MR) and EH programs mentioned in the
transfer article are special education programs.
Finally, the contract contains a management rights clause, which provides in part as follows:
Article III Management Rights
The exercise of the powers, rights, authority, duties and responsibilities by the
District as set forth below, and the adoption of policies, rules, regulations and
practices in furtherance thereof, and the use of judgment and discretion in
connection therewith, shall be limited only by the specific and express terms of
this agreement, and then only to the extent such specific and express terms are in
conformance with law.
Former Association Presidents June Mott and Charles Feeser participated in the negotiation of the
contract, with Mr. Feeser acting as chief negotiator. Mr. Feeser had no experience or training in
collective bargaining prior to negotiating the original contract between the parties. Both witnesses
acknowledge that EH teachers are in the unit, and that the contract provision on workload was
generally intended to apply to all unit members. At no time were EH or any special education
teachers discussed or referred to in the negotiation of the workload provision. Feeser and Mott
testified that they never gave much consideration to special education teachers in negotiating the
contractual terms because they perceived that it was a program which was extensively regulated
by state law. They were under the impression that the Education Code controlled most working
conditions for special education teachers. However, they acknowledge that at negotiations they
were aware that no state law preempted them from bargaining as to employment conditions for
special education teachers, and that they made no attempt to negotiate an exception for EH
teachers to the express terms of the workload provision which call for a standard 5/1 assignment
and limit extra pay to those teachers who teach six classes.
DISCUSSION
Generally, the EERA requires that a change in terms and conditions of employment within the
scope of representation must be negotiated by the parties. Moreno Valley Unified School District
(4/30/82) PERB Decision No. 206, 6 PERC 13107. However, an exclusive representative may, by
contractual agreement or otherwise, waive its right to negotiate a given change, and the employer
is thereby left free to make that change. See Chico Unified School District (2/22/83) PERB
Decision No. 286, 7 PERC 14077.
The Board, consistently with the National Labor Relations Board (NLRB), has held that a waiver,
to be effective, must be clearly and unequivocally conveyed. Oakland Unified School District
(8/31/82) PERB Decision No. 236, 6 PERC 13201. "[W]e will find a waiver only when there is
an intentional relinquishment of these rights, expressed in clear and unmistakable terms . . . ." San
Francisco Community College District (10/12/79) PERB Decision No. 105, 3 PERC 10127.
Here, the District points to specific contractual language which, it asserts, is the kind of express
language which constitutes a clear and unmistakable waiver of the right to negotiate.
Cases decided by the NLRB have made clear that a contract provision which cedes to the
employer unilateral control over a particular, clearly identified matter will operate as a waiver of
the exclusive representative's bargaining right as to that matter. Thus, in Ador Corp. (1965) 150
NLRB 168 [58 LRRM 1280], the NLRB found no unfair labor practice where the employer

unilaterally laid off some employees following its decision to discontinue one of its product lines.
The contract between the parties provided that:
The management of the Company's plant and the direction of its working forces,
including the right to establish new jobs, abolish or change existing jobs, increase
or decrease the number of jobs, change materials, processes, products, equipment
and operations shall be vested exclusively in the company; . . . Subject to the
provision of this agreement, the Company shall have the right to . . . lay off
employees because of lack of work or other legitimate reasons . . . .
Based on this provision the NLRB found no failure to bargain:
The so-called management rights section of the collective bargaining contract in
effect at the time the employer made his decision and took the basic steps in the
implementation thereof, gave to the Company the exclusive right to eliminate
production of any of its products and to lay off employees who were, as a
consequence of such decision, no longer needed. The parties had, in effect,
bargained about the manner in which such decisions were to be made during the
term of the collective bargaining agreement and had agreed that the "Company"
could take unilateral action in this regard.8
Similarly, this Board found in Chico Unified School District, supra, that the District did not
violate the EERA when, as a result of a sick-out, it implemented a form of absence verificatio
not previously required. We found that the contract between the parties expressly granted to t
District the authority to institute that verification requirement. The Association had in effect
waived its right to negotiate this change in District practice.
n
he
The Association in the instant case agreed to a contract which provides, inter alia, that "the
standard teaching assignment shall be six periods per day including a preparation period." An
exception to this flat rule is set forth for driver training teachers: they get no preparation period at
all. A further variation on the "standard" assignment is provided with regard to teachers who
work under non-standard (that is, other than 60 minutes) instructional periods: they are to be
assigned the same total amount of work time, with the same ratio of class to preparation time. The
contract then reiterates: "Members, with the exception of driver training, will normally be
assigned five periods of instruction per day or 25 hours per week, plus a preparation period . . . ."
Finally, the contract provides that: "No member shall teach more than twenty-five (25) hours per
week except by mutual consent of the District and the teacher involved. A member, other than
driver training teachers, teaching a sixth (6th) period will be reimbursed for this extra assignment
at one-fifth (1/5) of his/her placement on the salary schedule."
The hearing officer concluded that because the contract provisions on workload include the terms
"standard" and "normally" where setting forth the 5/1 work schedule, those provisions must
constitute only a general rule which is by implication subject to exceptions. Finding that EH
teachers were intended to be such an exception, he determined that the Association had never
agreed to a contractual provision governing the workload of EH teachers and that the change to
the 5/1 schedule should therefore have been negotiated. We disagree.
The Association admits that their contract negotiators never discussed or even considered the
subject of EH teachers during negotiation of the workload article. In light of this admission, it
cannot be concluded that the contract incorporates an affirmative intention that the workload
provision not apply to EH teachers.
Further, where the parties did intend that there should be exceptions to general or "standard"
provisions--both in the workload article and elsewhere in the contract--the contract states those
exceptions expressly. Thus, the District negotiated an express exception for driver training
teachers. Similarly, language was added to clarify the status of teachers who teach instructional
periods of non-standard length. In another part of the contract--the article on "transfer"--it is

______
provided that "this does not apply to TMR, EMR, EH or other district-wide programs." The
parties could have employed the express language noted, and did employ it in the transfer article,
but did not use it in the workload article. As the workload article has no parallel provision, we
find no basis for the hearing officer's conclusion that the presence of the terms "standard" and
"normally" signifies an intention of the parties that the otherwise absolute language of the
workload article should not apply to EH teachers.
Witkin, in his Summary of California Law, reviews the basic rules of contract interpretation.
Every contract requires mutual assent or consent. There must be an agreement on
definite terms. [Citation omitted.] But ordinarily (in the absence of fraud,
mistake, et cetera) the outward manifestation or expression of assent is
controlling. Mutual assent is gathered from the reasonable meaning of the words
and acts of the parties, and not from their unexpressed intentions or
understanding. "By the modern law of contract, the mere state of mind of the
parties--with reference to the 'meeting of the minds,'-- is not the essential object
of inquiry, the terms of the promise-act being determinable by an external and
not by an internal standard . . . ." [citation omitted; emphasis in the original].9
In light of this statement of law, we do not rely on the testimony of the Association's negotiators
as to what was in their minds during the negotiation of the workload provision of the contract.10
Rather, we determine the meaning of the provision from the unambiguous language of the
contract.
The language of the workload article plainly states that "[t]he standard teaching assignment shall
be six periods per day including a preparation period." It is reiterated that teachers will "normally
be assigned five periods of instruction per day . . . plus a preparation period." Finally, the article
states that "[n]o member shall teach more than twenty-five (25) hours per week . . . ," and
specifies that extra pay is due only for teaching a sixth period. The terms "standard" and
"normally," as they appear in the article, logically reflect the expressly identified exceptions to
the standard assignment, i.e., driver training instructors and teachers assigned to instructional
periods of other than 60 minutes. These terms, and the above-noted language expressly
prohibiting only assignments of more than five classes, also reflect the contractually specified
practice of assigning release time (and thus fewer teaching periods) to teachers who are
designated as department chairpersons. Read together, these provisions clearly establish a ceiling
or maximum teaching assignment of five classes, below which the District has the freedom to
operate consistently with the contract. Thus, it can assign department chairs only four, or three, or
two classes in its discretion. It can, and does, assign special non-teaching projects to teachers and
relieve those teachers of 1 or 2 classes. Similarly, it can, and has in the past, sought to provide
higher quality instruction by assigning only four classes to, e.g., English teachers and special
education teachers.
We find the wording of the workload provision sufficiently clear, in light of its treble repetition
and the absence of any expressed exceptions such as those which occur elsewhere in the contract,
to establish a "clear and unmistakable" objective meaning. We conclude that by agreeing to these
provisions, the Association waived its right to negotiate over the change in assignment.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this case, the
Public Employment Relations Board ORDERS that Case No. LA-CE-1264 is DISMISSED.
Members Morgenstern and Burt joined in this Decision.
1 The EERA is codified at Government Code section 3540 et seq. All statutory references
are to the Government Code unless otherwise noted.

Section 3543.5 provides, in pertinent part:
It shall be unlawful for a public school employer to:
(a) Impose or threaten to impose reprisals on employees, to discriminate or
threaten to discriminate against employees, or otherwise to interfere with,
restrain, or coerce employees because of their exercise of rights guaranteed by
this chapter.
(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.
2 Subsection 3541.5(a) provides in pertinent part as follows:
(a) Any employee, employee organization, or employer shall have the right to file
an unfair practice charge, except that the board shall not do either of the
following:
(1) issue a complaint in respect of any charge based upon an alleged unfair
practice occurring more than six months prior to the filing of the charge; . . .
3 Subsection 3541.5(b) provides as follows:
(b) The board shall not have authority to enforce agreements between the parties,
and shall not issue a complaint on any charge based on alleged violation of such
an agreement that would not also constitute an unfair practice under this chapter.
4 EERA's scope of representation is set forth at section 3543.2, and provides in pertinent
part as follows:
(a) The scope of representation shall be limited to matters relating to wages,
hours of employment, and other terms and conditions of employment. "Terms
and conditions of employment" mean 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 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.
5 In interpreting the contract to reach this conclusion, we do not exceed the jurisdictional
limitation set forth at subsection 3541.5(b), supra at footnote 3, prohibiting PERB from
enforcing agreements between the parties. The Board has previously articulated its basis
for finding that such interpretation of contractual provisions does not constitute
"enforcement" within the meaning of subsection 3541.5(b). See Grant Joint Union High

School District (2/26/82) PERB Decision No. 196; 6 PERC 13064; Victor Valley Joint
Union High School District (12/31/81) PERB Decision No. 192, 6 PERC 13027.
6 We note that the reduction or elimination of preparation time is negotiable only to the
extent that it affects matters within the scope of representation. Modesto City Schools
(3/8/83) PERB Decision No. 291; 7 PERC 14090; San Mateo City School District
(5/20/80) PERB Decision No. 129, 4 PERC 11092.
7 In light of evidence that a member of the Association's board of directors knew as early
as January 1980 that the District had proposed the 5/1 schedule for EH teachers, the
Association's October demands may well have been so belated as to constitute a waiver
by inaction of the negotiating right. However, the District did not raise this theory as a
defense. Thus, the Board does not rely on it in dismissing the charge.
8 Ador Corp., supra, 150 NLRB at 171. See also Helvetia Sugar Cooperative (1978) 234
NLRB 838 [98 LRRM 1290]; and General Controls Co. (1950) 88 NLRB 1341 [25
LRRM 1475].
9 B.E. Witkin Summary of California Law, Eighth Edition, 1973, p. 92.
10 See Norris Industries (1977) 231 NLRB 50 [96 LRRM 1078], where the NLRB, in
finding a contractual waiver of the negotiating right, specifically rejected the union's
contention that there was no meeting of the minds on the matter at issue in negotiations.