Eureka City School District (PERB 0528E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EUREKA TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.	V
EUREKA CITY 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-872
PERB Decision No. 	528
October 8, 	1985
Appearances; 	Ramon E. 	Romero, 	Attorney for Eureka Teachers
Association, 	CTA/NEA; 	Harland & 	Gromala by Richard A. 	Smith 	for
Eureka 	City 	School 	District.
Before Hesse, 	Chairperson; Morgenstern and Porter, 	Members.
DECISION
HESSE, 	Chairperson: 	The Eureka Teachers Association,
CTA/NEA 	(Association) 	excepts 	to the proposed decision of a
Public 	Employment 	Relations 	Board 	(PERB or 	Board)
administrative 	law 	judge 	(ALJ) 	rejecting 	the Association's
contention 	that 	the 	Eureka 	City 	School 	District 	(District)
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment 	Relations 	Act 	(EERA or 	Act).' 1 We 	agree 	with 	the
1l The	The 	EERA is 	codified 	at 	Government 	Code section 	3540 	et
seq. 	Section 	3543.5 provides, 	in relevant 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
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ALJ's 	dismissal 	of 	the charges 	for 	the 	reasons 	set 	forth below.
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.
FACTS
The ALJ 	found, 	and we agree, 	that 	this dispute centers
around 	language 	in 	the 	collective 	bargaining 	agreement
effective July 1, 	1983. 	Article 16 of that document, 	entitled
"Organizational 	Security" 	reads 	in relevant part:
1. 	Any teacher 	employed on or 	after July 1,
1983, 	who is not a member of 	the Eureka
Teachers 	Association CTA/NEA, 	or who does
not 	make 	application 	for 	membership within
30 days 	from the 	date 	of 	commencement 	of
teaching duties, 	shall become a member of
the Association or pay 	to 	the Association a
fee 	in an amount 	equal 	to unified membership
dues, 	initiation 	fees 	and general
assessment, 	payable to the Association. 	In
the 	event 	that 	a 	teacher 	shall 	not pay such
fees 	directly to the Association or
voluntarily 	authorize 	payment 	through
payroll deductions, 	the District 	shall
automatically deduct 	said 	amount 	through
regular payroll 	deductions.
5. 	For 	a 	teacher 	employed before July 	1,
1983, 	a maintenance of membership provision
is provided as 	follows:
Once a bargaining unit 	employee 	joins 	the
Association, 	the member shall 	remain a
member 	for 	the duration of 	this 	agreement.
However, 	no such arrangement 	shall deprive
2
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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the 	employee of 	the 	right 	to 	terminate
his/her 	obligation 	to 	the 	Association within
a period of 	30 days, commencing July 1 	of
each year. 	The 	District 	shall only deduct
from a members 	pay 	the Association dues
amount 	as 	indicated 	on 	the payroll 	deduction
form.
The 	dispute 	in this 	case 	arose 	when 	the Association
requested 	that 	the 	agency 	fee provision 	(paragraph 	1) 	be
applied 	to the District's 	"temporary" 	teachers, 	even though
they had 	been 	employed by 	the 	District 	continuously 	for 	a
number of years prior 	to July 1, 	1983. 	The District, 	on the
other hand, 	interpreted Article 	16 	to mean that 	the
"maintenance of membership" 	clause 	(paragraph 	5) 	applied 	to all
teachers, 	including 	temporary ones, 	who were employed by the
District 	in the 	school year 	immediately prior 	to July 1, 	1983,
and 	that 	the 	agency 	fee provision applied only to those
teachers 	"newly hired" 	on or 	after 	July 	1.
The 	dispute 	over 	the 	contract 	interpretation 	involved 	fees
from nine 	temporary teachers: 	six 	adult 	education teachers,
all 	of 	whom had 	worked 	for 	the 	District 	continuously since
their 	initial hire dates; 	and three 	teachers 	who worked 	in
positions 	funded by grants 	received by 	the 	District 	on 	a
year-to-year basis. 	Fringe benefits 	received by the 	nine were
not 	suspended at 	the 	termination of 	the 	1982-83 	school 	year
but, 	rather, 	were paid continuously through the summer. 	None
of 	the positions 	held by the 	nine was 	declared vacant, 	nor were
vacancies 	even advertised 	for 	those positions. 	The 	school
board, 	however, 	had to approve 	specifically 	filling 	the 	nine
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positions, 	and did so on two dates 	(July 11, 	1983 and
September 	19, 	1983).
The Association 	filed 	a 	charge 	alleging 	that 	the 	District
violated 	the Act 	by 	failing 	to bargain 	in good 	faith 	and by
making a 	unilateral 	change 	in 	the 	terms 	and conditions 	of
employment 	when 	it 	established 	a policy 	for 	temporary 	teachers
that placed 	them in 	the 	"maintenance of membership" 	category as
opposed 	to 	the 	"agency shop" 	category.
DISCUSSION
The ALJ ruled that the case was, 	at most, 	a contract
dispute, 	and 	that 	the Association 	failed 	to show by a
preponderance of 	the 	evidence 	that 	(1) 	there was 	a breach of
the agreement, 	and 	(2) 	the breach amounted to a change 	in
policy with 	a 	generalized 	effect 	or 	continuing 	impact 	on 	the
terms 	and conditions 	of employment. 	(See 	Grant Joint Union
High School 	District 	(1982) 	PERB Decision No. 	196.)
2 In support 	of 	this
proposition, 	the Association cites 	Victor Valley Joint 	Union
High School 	District 	(1981) 	PERB Decision No. 	192 and Chico
2 The 	Association's 	exceptions 	can be 	read 	to 	imply that
the Board 	should 	also 	interpret 	the 	contract 	because 	(since
there 	is 	no provision 	for binding arbitration) 	there 	is 	no
other 	forum available 	to 	the parties. 	The 	Board's 	jurisdiction
is 	clearly fixed by statute. 	Even 	if we were to agree 	that 	no
other 	forum is 	available to the parties, 	there 	is no authority
for 	extending 	the Board's 	jurisdiction 	in such a circumstance.
On appeal 	to the Board, 	the Association argues 	that 	PERB
has 	the authority to address 	contract 	violations 	that also
violate section 	3543.5(c) 	of 	the 	Act.
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Unified School District 	(1983) 	PERB Decision No. 	286. 	However,
the Association misapplies 	those 	cases. 	The 	Board did 	rule on
whether 	the 	employer 	violated 	the 	contract, 	but 	only because
the 	employer's 	action 	independently 	violated 	the Act 	by
unilaterally changing a policy or procedure. 	Here, 	the
Association has 	failed 	to prove 	that 	there was 	a change 	in a
District 	policy.
To establish a 	change 	in policy, 	the Association would need
first 	to prove 	what 	the 	existing policy was. 	That 	can be
accomplished 	by establishing what 	the past 	practice 	was 	or 	by
relying on contract 	language which addresses 	the point. 	Where
the contract 	language 	is ambiguous, 	conduct of 	the parties or
other 	extrinsic 	evidence 	may be 	used 	to 	reflect 	the 	intent 	of
the parties.
Here, 	past practice 	is not relevant as 	the parties mutually
agreed 	to change 	the past practice 	of 	having 	a 	universal
maintenance 	of 	membership provision 	to a 	"two-tier" 	system
providing 	maintenance 	of 	membership 	for 	one 	group and 	agency
fees 	for another. 	The contract 	language 	is 	ambiguous 	with
respect 	to the 	temporary employees, 	and no evidence was
introduced 	at 	the hearing 	which 	would 	definitively 	demonstrate
a mutual 	understanding or 	intent 	of 	the parties. 	These
circumstances 	do not 	reflect 	any policy change, 	and 	thus 	do not
constitute an 	independent 	violation of 	the Act.
The 	District 	did 	not 	clearly 	repudiate 	any prior
understanding, 	agreement, 	or practice, 	but merely interpreted
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the meaning of 	contract 	language 	in a 	reasonable way, 	albeit
differently than did 	the Association. 	Thus, 	the District's
action did 	not 	undermine 	the 	basic policy underlying 	the 	Act,
which 	is 	the 	fostering of 	the negotiation process. 	(See 	Grant
Joint 	Union High School 	District, 	supra, 	at p. 	8.)
Therefore, 	this case is, 	at most, 	a contract dispute, 	as
the 	Association has 	failed 	to prove 	conduct by 	the 	District
amounting 	to a 	violation of 	EERA.
ORDER
The unfair practice charge 	in Case No. 	SF-CE-872 	is hereby
DISMISSED in 	its 	entirety.
Members 	Morgenstern 	and 	Porter 	joined 	in 	this 	Decision.
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