Fresno County Board of Education and Superintendent of Schools (Nolt) (PERB 0409E)

STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
TIM NOLT, 	et al.,
Charging 	Party,
v.
FRESNO 	COUNTY BOARD OF EDUCATION
AND SUPERINTENDENT 	OF 	SCHOOLS,
Respondent.
FRESNO 	COUNTY SCHOOLS 	OFFICE
EDUCATION 	ASSOCIATION,
Charging 	Party,
v.
FRESNO 	COUNTY DEPARTMENT 	OF
EDUCATION,
Respondent.
)
)
) 	Case No. 	S-CE-462
PERB Decision No. 	409
September 17, 	1984
Case No. 	S-CE-470
)
)
)
Appearances; 	Finkle & Stroup by Harry Finkle, 	Brian J. 	McCully
and Mary Beth de 	Goede 	for 	Fresno 	County Department 	of
Education 	and 	Superintendent 	of 	Schools; 	California Teachers
Association by Diane Ross 	for 	Fresno 	County 	Schools 	Office
Education Association.
Before Hesse, 	Chairperson; 	Tovar and Burt, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the 	Public
Employment 	Relations 	Board 	(PERB) 	on exceptions 	filed by 	the
Fresno County Department 	of Education 	and 	Superintendent 	of
Schools 	(County Office or 	Employer) 	to an 	administrative 	law
)
)
)
)
)
)
)
_______________ )
)
)
)
)
)
)
)
)
)
_______________ )

judge's 	(ALJ) 	proposed decision that 	it 	violated subsections
3543.5(a), 	(b) and 	(c) of the Educational Employment Relations
Act 	(EERA) 	by unilaterally increasing teachers' 	hours 	of
employment.1
We have 	reviewed 	the 	ALJ's 	proposed decision 	in 	light 	of
the 	entire 	record, 	and reverse his 	finding that 	the District
violated subsections 3543.5(a), 	(b) and 	(c). 	Accordingly, the
charges 	are 	dismissed.
FACTS
The County Office 	provides 	educational 	services 	not
provided by 	the 	local 	school 	districts 	within the 	county.
Included within these 	services 	are 	programs 	for 	juveniles 	at
the 	county's 	detention facilities. 	For 	a period of 	twelve
years, 	the teachers at the Ashjian Center 	(the Center), which
1EERA 	is 	codified at 	Government 	Code 	section 	3540
et 	seq. 	All 	references 	are to the Government Code 	unless
otherwise 	indicated. 	Section 	3543.5 provides, 	in relevant part:
It 	shall be 	unlawful 	for a public school
employer 	to:
( a ) I m p o s e 	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.
22

is 	primarily a 	juvenile 	detention 	facility, 	had shared a
seventy-minute 	lunch period with the 	students 	at 	the 	Center
In November 	1977, 	the Fresno County Schools Office
Educators Association 	(Association) 	as 	exclusive 	representative
entered 	into 	its 	first 	collective 	bargaining agreement 	with the
County Office. 	During the 	term of 	the 	first 	contract, 	a
dispute 	arose over the length of the teachers' 	workday. 	The
principal 	of 	the 	Ashjian 	Center 	distributed a 	memorandum 	fixing
the 	end of 	the workday at 	3:10 p.m. 	Before this, 	teachers had
been 	allowed 	to 	leave 	following 	the 	conclusion of 	their 	last
class 	at 	2:40 p.m. 	Thereafter, 	teachers were required to
remain on the 	premises 	to be 	available 	for 	counseling 	students,
meeting 	with 	counselors 	and 	performing 	other 	school-related
duties.
A grievance 	was 	filed, 	charging that 	the 	change 	in the
length of 	the workday 	violated the 	collective negotiating
agreement. 	The 	County Office 	denied the 	grievance 	and 	it 	was
taken to advisory arbitration. 	Although the 	arbitrator 	ruled
that 	the memorandum 	should be 	rescinded, 	the 	Employer 	was 	not
bound by the 	recommendation 	and, 	subsequently, 	rejected the
advisory award. 	Subsequent 	litigation to 	compel 	compliance
with the 	award, 	instituted by the Association, 	was 	dismissed 	in
August 	1979 when 	the 	court 	ruled that 	PERB had exclusive
original 	jurisdiction 	to 	review 	unfair 	practices.
W
3

Negotiations 	for the 	1979 agreement 	between the Association
and the County Office began on January 17, 	1979. 	The
Association's 	opening 	proposals 	contained 	no 	changes 	concerning
hours 	and workweek. 	On February 21, 	1979, 	the County Office
submitted 	its 	proposals, 	one 	of which 	specifically required a
seven hour workday, 	exclusive 	of 	lunch, 	for 	teachers.2
2The 	Employer 	proposed modifications 	in work hours, 	in
relevant part, 	as follows:
X.3 	Work 	Hours
A. 	The 	basic work day 	is hereby defined as
eight 	(8) hours.
B. 	Unit members 	who 	serve 	as 	classroom
teachers 	at 	single 	stations 	are 	expected to
be 	at 	assigned 	locations 	and on duty no 	less
than seven 	(7) 	hours exclusive of lunch.
Such duty shall 	be 	in 	accordance 	with the
employer's 	approved 	schedule.
C. 	All 	other 	unit members 	not 	specifically
covered within this 	article 	shall 	work 	seven
(7) 	hours per 	day. 	These unit members may
leave 	after 	completing seven 	(7) 	hour 	duty
day unless 	there 	is 	a 	conflict 	with other
duties. 	Their working hours 	within the
eight 	(8) 	hour 	day shall 	be based on past
practice 	within the 	Fresno County Department
of Education.
D. 	Unit members 	are 	expected 	to remain on
duty after 	their 	last 	class 	to perform
professional 	responsibilities 	including, 	but
not limited to, 	the following: 	to prepare
for 	the 	next 	day, 	to work with 	individual
students, 	to counsel parents, 	to supervise
students, 	and to attend staff 	or 	employee
meetings 	and 	in-service 	sessions 	as 	directed
by 	their 	immediate 	supervisor.
A
	4

On August 	22, 	1979, 	the parties met for the first 	time
following the 	dismissal 	of 	the Association's 	lawsuit. 	At 	that
session, 	they explored extensively the 	dispute 	concerning
hours. 	The 	County Office offered a proposal 	to define the
workday as 	either seven hours exclusive of lunch, 	or seven 	and
one-half hours 	including lunch. 	The Association rejected 	that
proposal 	on the 	grounds 	that 	the 	teachers 	were 	satisfied with
the 	current 	contract 	language 	on hours.
At 	the following negotiation session, 	held September 	13,
1979, 	the County Office 	again proposed a 	seven-hour 	day,
exclusive 	of 	lunch. 	The County Office 	further 	offered to
guarantee 	employees 	at 	the Ashjian 	Center 	a thirty-minute 	lunch
period, 	with the remaining forty minutes 	of 	the 	prior
seventy-minute 	lunch 	period 	to be 	designated 	preparation 	and
counseling 	time. 	This 	offer was 	not 	accepted by the
Association.
During 	the 	subsequent 	negotiating 	session on September 	27,
1979, 	tentative agreement was 	reached on the subject 	of hours.
The 	language 	to be 	included 	in the 	contract 	defined 	the 	basic
working 	day to include 	seven hours 	and 	fifteen minutes,
including 	a 	duty-free 	lunch 	period 	of 	thirty 	minutes.3 No
X.6 	All 	unit 	members 	shall 	be 	entitled to
uninterrupted 	duty 	free 	lunch 	period 	of
at 	least thirty 	(30) 	minutes.
3 The 	1979-81 	collective 	bargaining agreement 	contains 	the
5

attempt 	was made to reconcile this 	language to the 	carry-over
provision of 	the 	prior 	contract 	that 	unit 	members 	would 	receive
a duty-free 	lunch period of 	"at 	least 	thirty minutes."
Negotiations 	then 	continued on other 	subjects 	for 	more 	than
three months. 	The 	collective 	bargaining agreement 	was
finalized on January 8, 	1980 with 	its 	term 	extending 	from 	1979
through 1981.
Shortly after 	the 	contract 	was 	agreed to, 	questions 	arose
as 	to the application of 	the new seven-hour, 	fifteen-minute
day. 	When 	the 	District 	Special 	Education Administrator 	was
asked whether 	teachers 	with a 	lunch 	period of 	more 	than
following language 	in relevant 	part:
ARTICLE 	X 	HOURS/WORK YEAR
X.1 	The 	County 	Superintendent 	recognizes
that 	the 	varying nature 	of 	a 	unit
member's 	day-to-day 	professional
responsibilities 	does 	not 	lend 	itself
to an 	instructional 	day of 	rigidly
established 	length. 	Unit members who
are 	regular 	classroom 	teachers 	are
generally expected to be 	at 	assigned
location responsible 	for 	instructional
and 	other 	assigned 	duties 	thirty
(30) 	minutes prior 	to their first
class. 	The basic working day for 	all
members 	of 	this Unit 	shall be 	seven
(7) hours and fifteen 	(15) 	minutes,
including a 	duty free 	lunch 	period of
thirty (30) minutes.
X.4 	All 	unit members 	shall 	be 	entitled to
an 	uninterrupted 	duty free 	lunch 	period
of 	at least thirty 	(30) 	minutes.
• 	• 	•
6

thirty 	minutes 	would have 	to remain 	at 	the Center 	for more 	than
the seven-hour, 	fifteen-minute day, he replied, 	"no." 	For 	the
remainder 	of the 1979-80 school year, 	as well 	as for the entire
1980-81 	school year, 	teachers 	at 	the Ashjian Center 	continued
to take 	a 	seventy-minute 	lunch 	break.
At 	the 	beginning of 	the 	1981-82 	school year, 	the 	principal
of 	the Ashjian Center 	notified 	employees 	that 	the 	lunch period
would be 	reduced 	from 	seventy to 	forty minutes. 	For 	thirty
minutes 	after 	lunch, 	the 	staff 	would be 	expected to be 	in their
classrooms 	attending to 	school 	related matters.
On November 18, 	1981, 	an Association representative
formally protested 	the 	change 	and 	asserted 	that 	the 	reduction
of 	the 	lunch period was 	a 	violation of EERA. 	Thereafter, 	on
January 7, 	1982, 	four 	unit members 	filed case number 	S-CE-462,
alleging that 	the 	reduction of 	the 	lunch hour 	from 	seventy
minutes 	to forty minutes 	violated subsections 	3543.5(b) 	and
(c). 	On February 1, 	1982, 	the Association similarly filed case
number 	S-CE-470 alleging violations 	of 	the 	EERA, 	including the
reduction of 	the 	lunch hour.
Complaints 	were 	issued 	in both cases 	on March 	19, 	1982 by
PERB, 	and the 	charging parties 	amended their 	charges 	several
times. 	An unsuccessful 	settlement 	conference 	was held and then
the 	cases 	were 	consolidated for 	hearing. 	After three 	days 	of
hearings, however, 	the parties 	reached a partial 	settlement.
All 	portions 	of 	the two 	charges 	and their 	various 	amendments
7

were 	withdrawn with prejudice except 	for 	the 	contention 	in 	both
charges 	that 	the 	Employer 	unilaterally reduced 	the 	length of
the 	lunch 	period 	at 	the Ashjian Center 	from 	seventy to forty
minutes.
DISCUSSION
The ALJ 	ruled 	that 	the Employer made 	a 	unilateral 	change 	in
employee hours, 	a matter 	within the 	scope of 	representation,
and thereby violated 	its 	duty to 	negotiate 	in 	good 	faith.
Pajaro Valley Unified School 	District 	(5/22/78) 	PERB 	Decision
No. 	51; NLRB v. Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177]. 	The
Office 	denies 	that 	it 	was 	obligated 	to negotiate over 	the
change 	in the 	lunch period, 	arguing that 	the subject 	of 	the
lunch 	period was 	negotiated 	extensively 	in 1979.
The County Office 	also 	argues 	that 	the Association waived
its 	right 	to bargain over 	a 	change 	in the 	length of 	a duty-free
lunch 	period when 	it 	agreed 	in the 	collective 	bargaining
agreement 	to a thirty-minute 	lunch. 	The ALJ had 	ruled that
there was 	no waiver 	of 	the Association's 	right 	to negotiate
over 	the 	shortened 	lunch 	period when 	it 	signed off 	on the
1979-81 	collective negotiating agreement. 	He noted that, 	in
order 	to establish an 	intent 	to waive 	a right, 	"clear 	and
unmistakable" 	language or behavior must 	be shown, 	and he found
that 	such a 	showing had not 	been made, 	citing Los 	Angeles
Community College District 	(10/18/82) 	PERB Decision No. 	252.
Looking at 	the 	new 	provision 	and 	the 	carry-over 	language
8

providing 	for 	the 	duty-free 	lunch,4 the 	ALJ decided the
collective bargaining agreement 	was 	ambiguous 	on 	its 	face. 	To
resolve 	this 	apparent 	inconsistency, 	the 	ALJ turned to the
bargaining history and the 	subsequent 	behavior 	of 	the 	parties
after 	the 	contract had been 	adopted. 	He 	concluded 	that 	the
Employer, 	in negotiating the 1979-81 	contract, 	had been more
concerned with the 	length of 	the 	school 	day rather 	than 	merely
the length of the lunch period. 	Therefore, 	there was 	no
evidence of 	"clear 	and 	unmistakable" 	intent 	on the 	part 	of 	the
Association 	and 	the 	County Officer's 	waiver 	defense was
rejected.
After 	the 	County Office had 	filed 	its 	exceptions, 	PERB
issued 	its 	decision 	in the 	case of Marysville Joint Unified
School District 	(5/27/83) 	PERB Decision No. 	314. 	The County
Office 	filed 	a 	supplemental 	brief 	citing 	Marysville 	in support
of 	its 	exceptions. 	The Employer 	argues 	that 	the 	facts 	in
Marysville are 	similar, 	if not identical, 	to the facts in the
instant 	case and, 	therefore, 	the 	Board must overturn the ALJ's
decision.
We 	find merit 	to the 	County Office's 	suggestion that 	the
holding 	in Marysville 	is 	applicable to this 	case, 	and we
therefore overturn the ALJ's decision. 	In Marysville, 	the
reduction in length of 	a 	lunch 	period was 	found to be 	pursuant
4see 	footnote 	3 supra.
99

to a 	collective bargaining agreement, 	even when that 	reduction
did not 	occur 	for 	several 	years 	after 	the 	agreement 	was
negotiated. 	No 	violation of 	the EERA was 	found because the
Association had waived 	its 	right 	to 	negotiate 	about 	the 	change
to a 	30 	minute 	lunch by agreeing 	to the 	relevant 	language 	in
the 	collective 	bargaining agreement 	that 	provided 	for 	"one 	duty
free 	lunch break of 	no less 	than 	30 minutes 	each day."
In Marysville, 	PERB 	ruled that 	the 	contractual 	language
evidenced an 	intention by the 	parties 	that 	the 	association
would waive 	its 	rights 	to negotiate over 	a change 	in the 	lunch
period 	as 	long as 	the 	change 	did 	not 	violate the 	provisions 	of
the 	collective 	bargaining agreement 	by 	reducing 	the 	time 	to
less 	than thirty minutes. 	If 	the 	similarities 	between
Marysville 	and the 	instant 	case 	are 	significant, 	then we must
hold that 	the Association here waived 	its 	right 	to negotiate
over 	a reduction 	in the 	lunch 	period, 	as 	long as 	any change
made 	still 	left 	the teachers 	a duty-free 	lunch period of 	at
least 	thirty minutes.
The 	similarities 	between Marysville and the 	case before 	us
are numerous. 	First, 	they both involve the reduction of 	a
lunch period. 	Second, 	this 	case 	and Marysville 	involve 	similar
contract language. 	In Marysville, 	the 	contract 	stated that the
teachers 	were 	entitled to 	"one 	duty-free 	lunch 	break of 	no 	less
than 	30 minutes 	each day." 	Here, 	the 	contract 	language
entitled teaches 	to 	"an 	uninterrupted 	duty-free 	lunch 	period of
10

at least 	30 minutes." 	Finally, 	the district 	in Marysville 	did
not 	enforce 	the 	reductions 	in the 	lunch period until 	some two
years 	after the 	contract 	was 	actually negotiated. 	Similarly,
the 	enforcement 	here 	came 	eighteen months 	after 	the 	contract
was 	negotiated.
The Association, however, 	urges 	that 	there are significant
differences 	present 	here 	that 	would make Marysville
inapplicable. 	Namely, 	the negotiating history here 	is
extensive 	and shows 	clearly that 	the 	Employer 	did 	not 	have the
right 	to reduce 	the 	lunch 	period based on a 	"waiver" 	theory.
We 	are 	unpersuaded, 	however, 	by the Association's
interpretation of 	the 	bargaining history. 	The 	proposals
exchanged between the 	parties, 	especially those 	concerning the
discussion over 	the 	length of 	the 	school 	workday, 	were 	always
phrased in terms 	of 	the teacher's 	having 	a thirty-minute 	lunch
break, 	not 	one 	that 	varied widely according 	to 	past 	practice.5
The 	collective 	negotiating agreement 	gave 	the 	County Office
the 	right 	to enforce 	a thirty-minute 	lunch period 	if 	it 	so
chose. 	The 	language 	identified only a 	minimum 	that 	needed 	to
be 	granted, 	and, 	except 	that 	the 	County Office 	could not
5Only 	after 	agreeing to the 	terms 	of 	the 	collective
negotiating agreement 	did members 	of 	the Association's
negotiating team question the 	Employer 	as 	to the 	application of
the 	contract 	provisions 	to the 	teachers 	at 	the Ashjian Center.
The 	teachers 	were 	told that 	those who had 	lunch 	periods 	longer
than thirty minutes 	would 	not 	have 	to 	stay additional 	time
after 	a seven-hour, 	fifteen-minute day.
11

require 	teachers 	to remain beyond 	a 	seven-hour 	and
fifteen-minute day, 	the Employer was 	free 	to set 	the 	length of
the teachers' 	lunch period, 	so long as 	the minimum was honored.
In Marysville, 	PERB 	resolved the 	question of 	the 	length of
the 	lunch 	period 	the 	district 	was 	required to 	provide 	by
stating:
The 	provision guaranteed 	employees 	a
duty-free 	lunch 	period of 	no less 	than
30 minutes 	each day. 	There 	is nothing 	in
the 	provision 	granting 	teachers 	a 	lunch
period in excess 	of 	30 minutes; 	nor
conversely, 	does 	the provision prohibit
management 	from 	assigning 	teachers 	to 	a
lunch period of 	just 	30 minutes 	in length.
(Marysville, 	supra, 	p. 	9.)
We 	find that 	reasoning appropriate 	in this 	case 	as 	well.
Additionally, 	the Association here 	argues 	that 	the
ambiguity 	caused 	by the 	new 	contract 	language 	and the
carry-over 	language 	can only be 	resolved by 	reference 	to past
practice. 	We 	believe these two sections 	are 	not 	truly
ambiguous 	and 	can be harmonized, 	however. 	While one 	section
provides for 	a lunch period of 	thirty minutes, 	and the other
provides 	for 	one of 	at 	least 	thirty minutes, 	in reality neither
section 	does 	anything 	other 	than 	provide 	for 	the 	minimum lunch
period that must be 	granted to teachers. 	Neither 	section
restricts 	the 	Employer 	from 	granting more 	time 	for 	a 	lunch
period if 	it so chooses.
Therefore, 	the Association waived 	its 	right 	to negotiate
over 	the County Office's 	reduction of 	the 	lunch 	period 	from
12

seventy minutes 	to 	forty minutes 	by agreeing 	to 	contractual
provisions, 	permitting the District 	to grant 	teachers 	a lunch
period of 	thirty minutes 	or 	longer 	at 	its 	discretion.
ORDER
Upon the 	foregoing Decision, 	and the 	entire 	record 	in this
matter, 	it 	is hereby ORDERED that 	the 	unfair practice 	charges
in Case Nos. 	S-CE-462 	and S-CE-470 are hereby DISMISSED.
Members 	Tovar 	and 	Burt 	joined 	in this 	decision.
13