Oak Grove School District (PERB 0503E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
OAK GROVE EDUCATORS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
OAK 	GROVE 	SCHOOL 	DISTRICT,
Respondent.
)
)
)
) 	Case 	No. 	SF-CE-788
PERB Decision 	No. 503
April 	23, 	1985
)
)
)
)
)
)
Appearances: 	Michael R. 	White, 	Attorney for Oak Grove
Educators Association, CTA/NEA; 	Kronick, Moskovitz, 	Tiedemann &
Girard 	by Diana 	D. 	Halpenny 	for 	Oak 	Grove 	School 	District.
Before Hesse, 	Chairperson; Jaeger and Burt, Members.
DECISION
JAEGER, 	Member: 	This case 	is before 	the 	Public Employment
Relations 	Board 	(PERB) 	on exceptions 	filed 	by the 	Oak Grove
School District 	(District) 	to 	the proposed decision of an
administrative 	law 	judge 	which 	found 	that 	the 	District 	had
violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA or
Act)1 by 	transferring 	a 	certificated 	employee without 	first
negotiating 	with 	the 	Oak 	Grove 	Educators 	Association, 	CTA/NEA
(Association). 	For 	the 	reasons which follow, 	we 	reverse 	the
underlying 	proposed 	decision 	and 	dismiss 	the 	charge.
1 The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	section 	references herein 	are 	to 	the 	Government
Code.
)

FACTS
The 	District 	and 	the 	Association 	have 	been parties 	to 	two
collectively negotiated contracts 	over 	the 	past 	six years. 	The
first, 	beginning July 1978 and 	effective, 	by agreed 	extension,
to 	June 	1982, 	authorized 	the District 	to 	implement 	involuntary
transfers 	based 	upon 	a 	ranking 	of possible 	transferees 	under
four 	criteria: 	seniority, 	ability of 	the 	teacher 	to 	relate 	to
present 	team members; 	affirmative 	action goals; 	and 	operational
needs of 	the District. 	In practice, 	each school principal
developed 	a 	list 	of 	more 	detailed 	criteria 	which 	fell 	generally
under 	the 	four 	categories 	listed 	in 	the contract. 	The
Association was 	not 	involved 	in development 	of 	these 	criteria.
Involuntary 	transferees 	were 	selected 	by 	application 	of 	the
detailed 	criteria 	without 	objection 	from 	the 	Association.
A successor contract 	became 	effective 	in June 	1982. 	This
agreement 	contained 	substantially 	new 	and 	different 	terms
governing 	involuntary transfer, 	as 	follows:
11.5 	Involuntary 	Transfers
11.5.1 	Involuntary 	transfers 	shall 	be
initiated 	by 	the 	Superintendent 	or 	designee
and 	shall 	be 	limited 	to 	the 	following:
11.5.1.1 	Changes of 	enrollment 	in a 	school,
change 	in organization of 	a 	school or
closing 	of 	a school or 	other 	work 	site.
11.5.1.2 	To meet 	legal 	requirements 	of
affirmative 	action or 	other 	legal
requirements.
11.5.2 	In 	the 	case 	of 	involuntary 	transfers
pursuant 	to 	11.5.1.1 	(11.5.1.2 when there 	is
N	
2

more 	than 	one 	bargaining 	unit member
involved), 	the least senior unit member will
be 	transferred 	unless 	the 	District 	needs 	to
retain 	the 	least 	senior 	unit members 	for
affirmative action, 	bilingual 	education or
ESL, 	Functional Strand, 	special education,
or 	need 	for 	particular 	subject 	matter 	skills
at 	the 	junior high school 	level, 	and 	in that
case 	the 	next 	least 	senior 	person will 	be
transferred, 	and so on.
Both 	the 	old 	and 	the 	new contracts 	contained 	the 	same
"management 	rights" 	article, 	which 	acknowledged 	the District's
authority, 	among other powers, 	to 	"transfer personnel:"
It 	is 	understood 	and 	agreed 	that 	the
District retains the right, 	duty, 	and
authority to direct, 	manage, 	and control the
affairs of 	the 	School District 	to 	the 	extent
of the law, whose rights, duties, 	and
authority 	are 	to determine 	its 	organization;
to direct 	the work of 	the employees; 	to
determine 	the 	kinds 	and 	levels 	of 	services
to be provided; 	to establish the methods and
means of providing 	them; 	to establish
educational policies and goals; 	to determine
the 	staffing pattern; 	to determine 	the
number 	and 	kinds 	of personnel 	required; 	to
transfer personnel; 	. 	. 	. 	and the right to
hire, classify, assign, evaluate, promote,
terminate 	and discipline 	employees. 	The
exercise of the foregoing 	rights, 	duties,
and 	authority by 	the 	District 	shall 	be
limited 	only by 	the 	terms 	of 	this 	agreement.
In May 	1983, 	the District determined 	that 	involuntary 	transfers
were 	to 	take place 	at eight 	to ten 	schools. 	At 	six of 	those
schools 	implementation of 	the contract provisions 	resulted 	in 	a
"tie" 	in 	seniority among teachers.
District 	administrators 	Gary Clark 	and 	Susan 	Roper 	met 	with
the 	principals 	of 	each of 	the 	affected 	schools prior 	to
W	
3

implementing 	the 	involuntary 	transfers. 	Each principal 	was
authorized 	to develop a 	list 	of criteria 	relating 	to
educational needs at his or her 	school. 	Generally, 	the
principals 	developed 	criteria 	covering 	employee 	evaluations,
bilingual 	experience 	and credentials, 	extracurricular
involvement, 	experience 	in teaching 	specific courses 	and
affirmative 	action goals. 	Then 	each principal 	ranked 	the
affected 	teachers 	at 	the 	school on 	a point method 	based 	upon
the 	criteria 	list. 	Ties 	in 	seniority were 	broken 	in 	this
manner 	in 	approximately 	seven or 	eight 	instances. 	The 	record
does 	not 	indicate 	whether 	all 	noticed 	transfers 	were 	actually
effectuated.
Employee 	Rosalinda 	Olson 	and 	one 	other 	teacher 	were
notified 	by 	their 	principal 	on May 	13 	that 	they were 	tied 	in
seniority 	and 	that 	the 	tie 	would 	be 	resolved 	by 	application 	of
the criteria developed 	by the principal. 	On May 	25, 	the
principal 	applied 	the 	criteria 	and 	notified 	Olson 	that 	she
would 	be 	transferred. 	Olson 	notified 	an Association officer 	of
the 	action 	soon 	thereafter. 	The Association 	represented 	Olson
in grievance proceedings, 	but was unsuccessful 	in 	reversing 	the
District's 	action.
Negotiating 	History
At negotiations 	for 	the 	1982-84 contract, 	the Association
proposed 	language 	to 	change 	the 	involuntary 	layoff 	procedure 	so
that 	involuntary 	transferees 	would 	in 	the 	future 	be 	selected
solely on 	the 	basis 	of 	seniority 	rather 	than 	the 	four 	criteria
4

of 	the prior contract. 	The District 	initially 	resisted, 	citing
the 	importance 	of 	other 	factors 	in 	a 	transfer 	decision. 	At one
point 	in 	the 	negotiations 	a written proposal 	which 	included 	a
tie-breaker 	provision was 	offered 	by 	the 	Association. 	However,
that 	proposal 	was 	withdrawn without 	being 	discussed.
Ultimately, 	the 	Association proposed 	the 	language which 	now
appears 	in the contract. 	Because 	this 	language gave protection
to District 	interests 	in affirmative 	action, 	bilingual
education 	and 	other 	specified matters, 	the 	District 	agreed 	to
it. 	However, 	no tie-breaking method was 	specified.
Apparently 	because 	the 	school 	summer 	vacation was 	imminent,
in 	June 	1982 	the parties 	agreed 	to 	sign and 	ratify 	the contract
even 	though 	specific 	final 	language 	had 	not 	yet 	been 	agreed
upon with 	respect 	to 	some of 	the matters which 	the parties 	had
negotiated. 	This agreement 	to execute 	the contract, 	however,
was 	with 	the mutual 	understanding 	that 	the parties 	would
continue 	to meet 	in order 	to 	finalize 	the 	unresolved points.
Thus, 	just a few days after execution, 	the parties appended 	to
the 	contract 	side 	letters 	of 	agreement 	on 	the 	issues 	of 	class
size, 	home 	teaching 	and school board bylaws.
The parties 	had 	also 	agreed prior 	to 	execution 	to 	a 	series
of meetings 	to 	resolve other potential problem areas 	in 	the
contract. 	Association witnesses 	testified 	that 	the 	Association
expected 	that 	one 	purpose 	of 	these meetings 	would 	be 	to 	add
tie-breaking 	language to the 	transfer 	provision. 	However, 	the
5

District 	witness 	indicated 	that 	the 	tie-breaker 	issue 	was 	not
one 	of 	the matters 	the District 	had 	in mind when 	it 	agreed 	to
hold 	these 	post-contract meetings. 	Aside 	from 	this 	testimony
of 	the Association representatives' 	state of mind, 	there 	is no
evidence 	of 	any 	specific 	agreement 	that 	a 	transfer 	tie-breaker
would 	be 	a 	subject of 	the 	"clarification meetings."
Only 	one 	meeting 	was 	held 	for 	contract 	clarification
purposes. 	While 	the 	transfer 	article was 	discussed 	with
respect 	to certain 	refinements, 	the 	tie-breaker 	issue was 	not
mentioned. 	Lengthy delays 	followed 	before 	another
"clarification" 	meeting 	could 	be 	held 	because 	the 	District did
not 	want 	to meet during 	the 	fall when 	school 	board 	elections
were 	being 	held. 	When 	the parties met 	again 	in January 	1983,
the 	District 	stated 	that 	it would 	not participate 	in any
further 	clarification meetings, 	suggesting 	to 	the Association
that 	it 	utilize 	its 	reopener 	options 	in 	the contract 	if 	it
wanted 	to 	amend 	the 	agreement. 	The 	Association 	never 	made 	a
request 	to 	reopen on 	the 	subject of 	a 	transfer 	tie-breaker. 	On
June 10, 	1983, 	the Association filed the 	instant charge.
DISCUSSION
It 	is well 	settled 	that 	a public 	school employer, 	absent
compelling 	justification, 	cannot change 	a working 	condition
within 	the 	EERA's 	scope 	of 	representation without 	first
providing 	the 	exclusive 	representative 	of 	affected 	employees
with an opportunity 	to meet and negotiate. 	Such unilateral
6

V
action 	violates 	the 	duty 	to 	negotiate 	in 	good 	faith which 	is
codified at 	section 	3543.5(c). 	Because 	that action also
effectively denies 	the 	representational 	rights 	of 	both 	the
employees and 	the exclusive 	representative, 	it 	also violates
sections 	3543.5(a) 	and 	(b). 	San Francisco Community College
District 	(1979) 	PERB Decision No. 	105; 	Pajaro Valley Unified
School District 	(1978) 	PERB Decision No. 	51; NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[58 LRRM 2177].
To 	show that 	a 	unilateral change 	has occurred, 	the charging
party 	logically 	must 	first prove 	what 	the 	employer's 	prevailing
practice 	or 	policy was 	as 	to 	the working condition at 	issue.
Having 	established 	this 	"status quo 	ante," 	the 	charging 	party
must 	then 	show that 	the 	employer 	has, 	without 	first providing
an opportunity 	to 	negotiate, 	departed 	from 	that 	prevailing
policy or 	practice 	in a way which evidences 	the 	adoption of 	a
new policy 	having 	a 	generalized 	effect 	or 	continuing 	impact
upon 	the 	bargaining 	unit members. 	Grant 	Joint 	Union High
School District 	(1982) 	PERB Decision No. 	196.
In the 	instant case, 	the Association charges 	that the
District's 	selection of 	Rosalinda 	Olson 	for 	involuntary
transfer 	evidences 	a 	unilateral change 	in 	transfer 	policy 	in
violation of 	the 	EERA. 	Our 	review of 	the 	record 	evidence,
however, 	fails 	to 	show that 	the 	transfer 	of Olson was
inconsistent 	with 	the 	transfer 	policy 	which 	existed 	at 	the 	time.
7

The 	facts 	show that 	the 	prevailing 	practice 	during 	the 	term
of 	the 	old 	1978-82 	contract permitted 	the 	District 	substantial
discretion 	in 	selecting 	an 	individual 	for 	transfer. 	The
District was 	required 	to 	observe 	the 	four 	general 	guidelines
set 	forth 	in the contract; 	so 	long 	as 	the District complied
with 	these contractual guidelines, however, 	it was permitted
through 	its 	principals 	to determine 	which 	employee 	would 	be
transferred.
In negotiating 	the 	1982-84 contract, 	the Association had 	an
opportunity 	to modify 	the 	existing 	transfer 	policy. 	It 	took
advantage 	of 	that 	opportunity 	and 	succeeded 	in 	significantly
modifying 	the District's policy. 	Thus, 	the 	four general
criteria 	specified 	in 	the 	previous 	contract 	were 	replaced 	with
the 	single criterion of 	seniority.
The 	District's 	actions 	in May 	1983 	show that 	it did 	not
depart 	from 	the 	modified 	transfer 	policy when 	it 	transferred
Rosalinda Olson. 	As 	in the past, 	it applied 	the contractual
requirements, 	in this case by 	identifying 	the 	teachers with 	the
least 	seniority. 	When 	application 	of 	the 	contractual 	criterion
produced more 	than one candidate 	for 	transfer, 	the 	District
acted 	consistently 	with 	the 	unmodified 	portion 	of 	prior
transfer 	policy 	by 	having 	the 	school 	principal 	prepare 	detailed
criteria 	for 	the 	purpose 	of completing 	the 	transfer 	decision.
The Association argues 	that, 	even 	if 	the new contract
language on 	its 	face does not prohibit 	the 	District 	from
Co	
8

transferring Olson as 	it did, 	the 	District 	nevertheless
violated 	its duty to 	negotiate. 	The Association 	asserts 	that
the 	language 	appearing 	in 	the 	contract does 	not 	constitute 	the
party's 	good 	faith 	final 	agreement 	because 	they 	had 	actually
agreed 	to discuss changes 	and 	additions 	to 	the 	language 	at
post-execution 	"clarification" 	meetings. 	Our 	own 	review of 	the
record, 	however, 	confirms 	the 	finding 	reached 	by the
administrative 	law judge. 	He 	stated 	in 	his proposed decision
that:
The 	record does 	not 	support 	a 	finding 	that
the District made 	a 	specific 	agreement 	to
clarify 	the 	involuntary 	transfer 	provision
of 	the contract with 	respect 	to
implementation of 	the 	seniority 	criteria.
Association witnesses 	. 	. 	. could not
support 	their 	claim by 	any 	specific
discussions 	between 	the parties 	or
statements 	by District 	representatives.
ORDER
Upon 	the 	foregoing 	findings of 	fact 	and conclusions 	of 	law,
the charge and complaint 	in Case No. 	SF-CE-788 	are DISMISSED.
Chairperson 	Hesse 	and Member 	Burt 	joined 	in 	this 	Decision.
99