Lake Elsinore School District (PERB 0563E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELSINORE VALLEY 	EDUCATION
ASSOCIATION, CTA/NEA,
Charging 	party,
v.
LAKE 	ELSINORE 	SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	LA-CE-2059
PERB 	Decision 	No. 	563
February 24, 	1986
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Appearances; 	A. 	Eugene Huguenin, 	Jr., 	for Elsinore Valley
Education Association, 	CTA/NEA; 	Parham & Associates, Inc., by
James 	c. 	Whitlock 	for 	Lake Elsinore 	School 	District.
Before Hesse, 	chairperson; 	Morgenstern and Craib, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before the public
Employment 	Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed
by 	the Lake Elsinore 	school 	District 	(District) 	to 	the 	proposed
decision 	of 	a PERB 	administrative 	law 	judge 	(ALJ), 	In 	his
proposed 	decision, 	attached hereto, 	the ALJ 	concluded 	that 	the
District violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment 	Relations 	Act 	(EERA or Act) 1 when 	it
1EERA 	is 	codified 	at 	Government 	code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein 	are 	to 	the Government 	Code.
Section 3543.5 provides, 	in pertinent part, 	as follows:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:

bypassed 	the 	exclusive 	representative 	of 	the 	District's
certificated 	employees, 	the 	Elsinore Valley 	Education
Association, CTA/NEA (Association).
FACTUAL 	SUMMARY
The ALJ's 	findings 	of 	fact 	are not 	in 	contention, 	are 	free
from 	prejudicial 	error 	and 	are 	adopted 	by 	the 	Board 	itself. 	In
sum, 	the 	Association's 	charge 	concerns 	the 	employment 	of 	two
speech 	therapists, 	Kathy Mark 	and Delia 	Mitchell 	Christian, 	for
workyears 	that 	exceeded 	those 	provided 	for 	by the parties'
negotiated agreement. 	Specifically, 	Article 	7.4 	of 	the 	1982-85
contract 	provides 	that 	the 	length 	of 	the workyear 	shall 	be 	179
days 	for 	returning 	bargaining 	unit 	members 	and 	180 	days 	for 	new
members. 	The 	evidence presented 	to 	the ALJ 	conclusively
established 	that, 	during 	the 	1982-83 	and 	1983-84 	school 	years,
Mark 	was 	hired 	as 	a 	speech 	therapist 	for 	a 	196-day workyear.
For 	the 	1984-85 	school 	year, 	Mark 	was 	offered and 	accepted 	a
contract 	that 	required 	a workyear 	of 	190 	days. 	Christian 	was
hired 	as 	a 	speech 	therapist 	for 	the 	1983-84 	and 	1984-85 	school
(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.
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years, 	both 	specified 	as 	190-day 	school years. 	These
therapists were 	paid 	for 	the 	extra 	days 	worked 	based 	on 	a 	per
diem rate. 	Other unit members, 	save nurses, 	were paid for
extra 	days 	based 	on 	an 	established 	hourly 	rate.
DISCUSSION
An 	employer 	violates 	its 	duty 	to 	bargain 	when 	it 	bypasses
the 	exclusive 	representative 	and 	bargains 	individually 	with 	its
employees 	concerning 	the 	terms 	and 	conditions 	of 	employment.
See Morris, 	Developing Labor Law, 	2nd Ed., Vol. 	I, 	page 600 	et
seq.; 	Gorman, 	Basic Text on Labor Law, 	page 375 et seq. 	AS the
United 	States 	Supreme 	Court 	noted 	in 	J. 	I. 	Case 	v. 	NLRB 	(1944)
321 U.S. 	332 	[14 LRRM 501]:
Individual contracts, 	no matter what 	the
circumstances 	that 	justify 	their 	execution
or what 	their 	terms, 	may not 	be 	availed 	of
to defeat or delay 	. 	. 	. 	collective
bargaining 	. . . .
In Walnut Valley 	unified 	School 	District 	(1981) 	PERB
Decision 	No. 	160, 	the 	Board 	considered 	the 	claim that 	the
employer 	had 	bypassed 	the 	exclusive 	representative 	and 	held
that, 	in the presence of an exclusive 	representative, 	an
employer 	may 	not 	unilaterally 	establish 	or 	modify 	existing
policies.
To prove 	that 	the 	District 	has 	unlawfully
bypassed 	CSEA by 	"negotiating" 	directly 	with
the 	four 	employees 	in question, 	it must be
demonstrated 	that 	the 	District 	sought 	either
to 	create 	a 	new overtime 	policy 	of 	general
application 	or 	to obtain 	a waiver 	or
modification 	of 	existing 	policy 	applicable 	to
those employees.
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Here, 	the 	evidence plainly 	establishes 	that 	two employees
agreed 	to workyears 	that 	exceeded 	the 	contractual 	limit. 	By
dealing 	directly with 	Mark 	and 	Christian, 	the 	District 	sought
and 	obtained 	a 	workyear 	commitment 	different 	from 	that 	which
was 	negotiated 	with 	the 	therapists' 	bargaining 	representative.
That 	conduct 	flies 	in 	the 	face 	of 	the 	principle 	of 	exclusivity
and 	directly affronts 	the 	statutory 	scheme 	which 	is 	the
cornerstone of the Act.2
The 	District's 	arguments 	raised 	on 	appeal 	afford 	no 	basis 	to
depart 	from 	this 	conclusion. 	The 	employer 	cannot 	refer 	to 	its
past 	practice 	as 	a 	benchmark 	against which 	to 	judge 	its 	conduct
where 	the 	unambiguous 	contract 	terms 	spell 	out 	the 	negotiated
workyear. 	Past practice 	is 	of 	relevant 	concern 	in 	unilateral
change 	cases 	only where 	no 	unambiguous 	bilateral 	agreement
clearly 	sets 	out 	the practice. 	As we 	said 	in 	Modesto City
Schools 	and High 	School 	District 	(1984) 	PERB Decision 	No. 	414:
Established 	policy may be 	reflected 	in 	a
collective agreement 	. 	. 	. 	, or where the
agreement 	is 	vague or 	ambiguous, 	it may be
determined 	by 	examining 	the 	past 	practice
. 	. 	. 	. 	(Citations omitted; 	emphasis added.)
2we are cognizant, 	of course, 	of the common practice of
having 	certificated 	employees 	sign 	individual 	employment
contracts. 	Such 	contracts 	are not 	inherently improper, 	even 	if
secured 	without 	the 	involvement 	of 	the 	exclusive 	representative.
However, 	such 	contracts are 	unlawful where 	they usurp the
exclusive 	representative's 	statutory 	role 	or 	otherwise 	undermine
the 	integrity 	of 	the 	collective 	bargaining 	process 	required 	by
the Act. 	The 	instant 	case, 	involving 	the 	creation 	of 	individual
contracts 	(without 	the 	consent 	of 	the 	exclusive 	representative)
with 	terms 	contradicting 	those 	contained 	in 	a 	collectively
bargained 	agreement, 	provides 	one such 	example.
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Here, 	the parties' contract 	is 	sufficient 	evidence 	to 	establish
that 	the 	parties' 	agreement 	effective 	at 	that 	time 	compelled
either 	a 	179- 	or 	180-day workyear.3
The 	District's 	argument 	that 	no 	actual 	negotiating 	took
place with 	Mark 	or 	Christian 	is 	likewise 	unpersuasive. 	First,
as 	the 	Board 	stated 	in Walnut Valley, 	supra, 	proof 	of bypassing
the 	exclusive 	representative 	by 	negotiating 	directly 	with
employees 	is 	demonstrated when 	the 	employer 	obtains 	a waiver 	or
modification 	of 	an 	existing 	policy 	applicable 	to 	those
employees. 	Here, 	by virtue of the collective bargaining
agreement, 	Mark's 	and 	Christian's workyears were 	limited 	to 	179
or 	180 	days. 	The 	individual 	employment 	contract 	each 	signed,
however, 	is 	evidence 	that 	both 	employees 	relinquished 	their
rights 	to 	rely on 	the 	negotiated workyear 	limit. 	Moreover, 	the
injury suffered 	in 	a 	case 	such 	as 	this 	stems 	from 	the 	employer's
failure 	to 	negotiate 	with 	the 	exclusive 	representative. 	It 	is
the 	absence 	of 	any 	effort 	by 	the 	District 	to 	negotiate 	the
aberrant 	workyear 	with 	the Association 	that 	forms 	the 	basis 	of
the 	charge.
3 The 	Board 	takes 	administrative 	notice 	of 	the parties'
1985-86 	contractual 	agreement 	entered 	into 	in 	September 	1985.
El 	Monte 	union 	High 	School 	District 	(1980) 	PERB Decision
No. 	142; 	John Swett Unified School 	District 	(1981) 	PERB
Decision N O . 	188; 	Delano Union Elementary School District
(1982) 	PERB Decision No. 	213a, 	rev. 	den. (1983) 5 Civil 7562;
San 	Mateo City School 	District 	(1984) 	PERB Decision 	N O . 	375a.
Also, 	see PERB Regulation 	32120, 	codified at California
Administrative Code, 	title 8, 	section 	31001 	et seq. 	Article
5.5 	of 	that 	agreement 	establishes 	that 	the 	workyear 	shall 	be
184 	days 	for 	returning 	unit members 	and 	186 	days 	for 	unit
members 	new to 	the 	District.
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Also without 	merit 	is 	the 	District's 	claim that 	no 	unlawful
conduct 	is 	evidenced 	here 	because 	the 	change 	in 	the 	two 	speech
therapists' 	workyears was 	not 	a 	change 	in 	policy of 	general
application. 	In 	fact, 	the 	contrary 	is 	true. 	Article 	7.3
establishes 	the 	number 	of workdays 	for 	all 	bargaining 	unit
members. 	By eschewing that 	limit, 	the 	District 	unilaterally
voided 	its 	179- or 	180-workday policy which, 	by its 	terms, 	was
applicable 	to 	all 	unit 	members, 	including 	these 	two employees
in 	the 	speech 	therapist 	classification.
Finally, 	the 	remaining question 	is 	whether 	the Association's
charge was 	timely 	filed. 	Section 	3541.5(a)(l) 	requires 	that
the 	conduct 	complained of 	in 	an 	unfair 	practice 	charge 	be 	based
on 	conduct 	occurring 	not 	more 	than 	six 	months 	prior 	to 	the
filing 	of 	the 	charge.
First, 	with 	regard 	to 	the 	practice 	of mailing 	job
announcements 	by 	the 	District 	superintendent's 	secretary,
Connie 	Estrella, 	we 	are 	unable 	to 	find 	sufficient 	evidence 	from
which 	to 	impute Association 	knowledge. 	Estrella 	did 	not 	testify
that 	she 	in 	fact 	sent 	the 	job announcements 	in 	question, 	nor 	did
the 	Association 	testify that 	such were 	received. 	Moreover, 	we
are 	reluctant 	to base 	union 	knowledge 	of 	an 	intent 	to 	change
the 	workyear 	on 	a 	one-line 	entry 	in 	a 	job 	announcement 	mailed
to 	the Association president 	prior 	to school 	opening. 	And, 	as
the 	ALJ 	emphasized, 	the 	job 	announcement 	did 	not 	advise 	the
union 	of 	its 	intention 	to 	change 	the workyear.
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We 	also 	find 	it 	of 	some 	import 	that 	District 	superintendent
Ronald 	Flora 	was 	unaware 	of 	the 	two 	therapists' 	workyears 	until
the 	summer 	of 	1983. 	And, 	while he 	testified 	that 	he 	told 	"the
union" 	of 	the workyear 	problem, 	he 	did 	not 	indicate when 	that
occurred nor 	to whom his 	comment was made. 	Thus, 	what we 	are
left with 	is 	that, 	while 	Flora became aware of 	the 	longer
workyears 	in 	the summer 	of 	1983, 	the 	letter 	from Flora 	to 	Dee
Thomas, 	Association president, 	nearly one year later, 	is the
earliest 	evidence 	of 	the 	fact 	that 	the 	workyear 	disparity was
conveyed 	to 	the 	union, 	indeed, 	the 	timing of the 	letter 	to
Thomas 	may 	be 	read 	to 	support 	the 	statement 	by Jim Caldwell,
chairperson 	of 	the Association's 	bargaining 	team, 	that 	the
union 	was 	unaware 	of 	the 	divergent 	workyear 	until 	June 	1984.
For 	these 	reasons, 	we 	agree with 	the ALJ's 	finding 	that 	the
charge 	is 	not 	untimely.
ORDER
Based 	on 	the 	foregoing facts, 	conclusions of 	law, 	and the
entire 	record 	in 	this 	case, 	and pursuant 	to Government 	code
section 3541.5(c), 	it 	is hereby ORDERED that 	the Lake Elsinore
School 	District 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Unilaterally 	changing 	the 	contractually 	established
workyear 	duration 	in 	derogation 	of 	its 	obligation 	to 	negotiate
in 	good 	faith 	and 	be 	bound 	by 	the 	contractual 	agreements
reached 	with 	the 	Elsinore 	Valley 	Education Association, 	CTA/NEA.
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2. 	Denying 	to 	the 	Elsinore Valley 	Education 	Association,
CTA/NEA, 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations 	Act, 	including the 	exclusive 	right 	to 	represent 	and
to 	negotiate 	a 	binding 	collective 	bargaining 	agreement 	on
behalf 	of 	its members.
3. 	Interfering 	with 	the employees' 	rights 	guaranteed by
the 	Educational 	Employment 	Relations 	Act, 	including 	their 	right
to 	be 	represented 	by 	their 	exclusive 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO EFFECTUATE
THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT RELATIONS 	ACT:
1. 	Rescind 	the 	individual 	employment 	contracts 	of 	Kathy
Mark 	and 	Delia 	Mitchell 	Christian 	and 	adhere 	to 	the workyear
duration 	as mandated 	by the parties' 	current 	contractual
agreement.
2. 	Make 	both 	employees 	whole 	for 	any 	financial 	loss
suffered 	as 	a 	consequence 	of 	the 	District's 	failure 	to
compensate 	them 	in 	accordance 	with 	the 	established 	method 	of
compensation 	for 	the 	extra 	days 	each 	worked. 	Monetary
compensation 	shall 	include 	interest 	at 	a 	rate of 	ten 	(10)
percent 	per 	annum.
3. 	Within 	thirty-five 	(35) 	days 	following the date 	this
Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post 	at 	all
work 	locations 	where 	notices 	to 	employees 	customarily 	are
placed, 	copies 	of 	the 	Notice 	attached 	as 	an 	Appendix 	hereto,
signed 	by 	an 	authorized 	agent 	of 	the 	employer. 	Such 	posting
shall 	be maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive
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workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	this
Notice 	is 	not 	reduced 	in 	size, 	defaced, 	altered or covered by
any material.
4. 	Written 	notification 	of 	the 	actions 	taken 	to 	comply
with 	this 	Order 	shall 	be made 	to 	the 	regional 	director 	of 	the
Public 	Employment 	Relations 	Board 	in 	accordance with 	his
instructions.
This 	Order 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	upon 	the Lake 	Elsinore 	School 	District.
Chairperson 	Hesse 	and 	Member 	Craib 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After a hearing 	in unfair Practice Case N O . 	LA-CE-2059,
Elsinore Valley Education 	Association, 	CTA/NEA v. 	Lake 	Elsinore
School 	District, 	in which 	all 	parties 	had 	the 	right 	to
participate, 	It 	has 	been 	found 	that 	the 	District 	violated
Government Code section 3543.5(a), 	(b) 	and 	(c) 	by bypassing the
certificated 	employees' 	exclusive 	representative 	and
establishing 	the workyears 	for 	two 	speech 	therapists 	at 	odds
with 	those 	mandated 	by 	the 	parties' 	negotiated 	contract.
As 	a 	result 	of 	this 	conduct, 	we have been 	ordered 	to post
this Notice, 	and we will:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	unilaterally 	changing 	the 	contractually 	established
workyear 	duration 	in 	derogation 	of 	our 	obligation 	to 	negotiate
in 	good 	faith 	and 	be 	bound 	by 	the 	contractual 	agreements
reached with 	the 	Elsinore Valley 	Education 	Association, 	CTA/NEA.
2. 	Denying 	to 	the 	Elsinore Valley 	Education 	Association,
CTA/NEA, 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations 	Act, 	including 	the 	exclusive 	right 	to 	represent 	and
to 	negotiate 	a 	binding 	collective 	bargaining 	agreement 	on
behalf 	of 	its 	members.
3. 	Interfering 	with 	the employees' 	rights 	guaranteed 	by
the 	Educational 	Employment 	Relations 	Act, 	including 	their 	right
to 	be 	represented 	by 	their 	exclusive 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE
THE POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT RELATIONS 	ACT:
1. 	Rescind 	the 	individual 	employment 	contracts 	of 	Kathy
Mark 	and 	Delia 	Mitchell 	Christian 	and 	adhere 	to 	the 	workyear
duration 	as 	mandated 	by the 	parties' 	current 	contractual
agreement.

2. 	Make 	both 	employees 	whole 	for 	any 	financial 	loss
suffered 	as 	a 	consequence 	of 	the 	District's 	failure 	to
compensate 	them 	in 	accordance 	with 	the 	established 	method 	of
compensation 	for 	the 	extra 	days 	each worked. 	Monetary
compensation 	shall 	include 	interest 	at 	a 	rate 	of 	ten 	(10)
percent 	per 	annum.
Dated: 	LAKE 	ELSINORE 	SCHOOL 	DISTRICT
By Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN POSTED 	FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM 	THE 	DATE 	OF POSTING AND
MUST 	NOT 	BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELSINORE 	VALLEY 	EDUCATION
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
LAKE ELSINORE 	SCHOOL DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-2059
PROPOSED 	DECISION
(5/13/85)
Appearances: 	A. 	Eugene Huguenin, 	Jr., 	Attorney, 	California
Teachers Association, 	for Charging 	Party; 	James C. 	Whitlock,
Parham & Associates, 	for Respondent.
Before Gary M. 	Gallery, 	Administrative Law Judge.
STATEMENT OF 	CASE
The 	District 	employed 	two members 	of 	the 	bargaining 	unit
under 	employment contracts 	for 	more 	days 	of 	service 	than
provided 	for 	in 	the 	collective 	bargaining 	agreement 	with 	the
exclusive 	representative.
PROCEDURAL 	HISTORY
On September 	27, 	1984, 	the Elsinore Valley Education
Association, 	CTA/NEA 	(EVEA or Association) 	filed 	an unfair
practice charge 	against 	the 	Lake 	Elsinore 	School 	District
(District) 	alleging 	violation of 	Government 	Code 	subsections
3543.5 	(a), 	(b) 	and 	(c)1 in that the District bypassed the
13543.5. 	UNLAWFUL PRACTICES: 	EMPLOYER
It 	shall be 	unlawful 	for 	a public 	school
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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Association 	and 	negotiated 	with 	two 	speech 	therapists 	upon
terms and conditions 	of 	employment, 	namely 	the 	work year 	and
compensation. 	A complaint 	incorporating 	the charge 	was 	issued
on October 31, 	1984. 	On October 22, 	1984, Respondent filed
motions 	to defer 	and 	to dismiss 	the complaint, 	both of which
were denied on December 	6, 	1984. 	Respondent's answer was 	filed
November 	15, 	1984, 	denying violations of 	the EERA. 	The parties
waived 	a 	settlement 	conference. 	The 	formal 	hearing 	was 	held 	on
January 17, 	1985. 	Post hearing 	briefs were 	filed 	by the
parties and 	the matter 	submitted on March 	20, 	1985.
FINDINGS 	OF FACT
The District 	is 	a public 	school 	employer 	within 	the meaning
of 	subsection 3540.l(e). 	The Association 	is the exclusive
representative within 	the meaning 	of 	subsection 	3540.l(f) 	of
certificated 	employees 	of 	the 	District.
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.
These 	subsections 	are 	a part 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA or Act) 	commencing 	with 	Government 	Code
section 	3540. 	All 	references are 	to 	the 	Government 	Code 	unless
otherwise 	noted.
N2

Prior 	to July 1983, 	the District and 	the Elsinore High
School 	District 	employed 	the 	same 	superintendent 	with 	a 	common
administration. 	Each district 	had 	a 	separate 	board 	of
trustees. 	In July 1983 	separate 	superintendent positions and
administrations were established. 	James Flora, 	who had 	been
superintendent 	of both districts 	since 	1981, 	continued as
superintendent 	of 	the 	Respondent.
A collective 	bargaining 	agreement 	between 	the 	parties
expired 	in June 	1982. 	Negotiations 	on a 	successor 	contract
continued 	until April 1983 when a new agreement, 	retroactive 	to
July 	1982 was 	reached. 	The 	term of 	that 	agreement 	is 	July 	1982
to June 1985.
Speech 	therapists 	are members 	of 	the 	unit covered 	by 	the
agreement 	(Article 	3.2). 	The agreement provides 	that the work
year 	for 	returning 	teachers 	is 	179 	days 	and 	for 	new 	teachers
180 days 	(Article 7.4).
In July or August of 	1982, 	Kathy Marks was hired 	as 	a
speech 	therapist 	for 	the 	1982-83 	school year. 	The 	job
announcement provided 	that 	the work year 	was 	196 	days, 	and 	she
was 	told 	she 	would 	be 	working 	that 	number 	of days during 	her
interview for 	the position. 	Marks was 	hired 	by Earl Hooper who
was 	Director 	of 	Special 	Education Services when 	there 	was 	a
common administration. 	In May 	1983 	the District 	extended 	to
Marks 	an 	employment contract 	that 	stated 	196 	workdays 	for 	the
1983-84 	school year. 	The 	salary class was 	identified 	as 	D-5.
W	
3

Among 	the 	stated 	conditions 	of 	employment 	was 	the 	provision
"This 	offer 	is 	subject 	to your 	having on 	file 	with 	the 	County
Superintendent 	of 	Schools 	of 	Riverside 	County 	requisite
credentials 	for 	services." 	Under 	the 	styling of ACCEPTANCE OF
OFFER was 	a 	statement 	that 	the 	signatory 	stated 	"I 	accept 	the
above 	offer 	of 	employment 	and 	will 	report 	for duty 	as
directed." 	Marks 	signed the document 	later 	in May 	1983, 	and
worked 	196 days 	for 	the 	1983-84 	school year. 	On 	a document
titled 	"Contract/Offer of Employment" 	dated May 	4, 	1984, 	with
the 	same 	substantive provisions 	as 	the 	one described 	for 	the
1983-84 school year, 	Marks was offered and on July 14, 	1984,
accepted employment 	for 	the 	1984-85 	school year. 	She was 	told
by her 	then supervisor, 	Devena Reed, 	that 	she would 	be 	working
10 extra days 	for 	that 	school year. 	The 	salary class was
designated 	D-6 	on 	the 	salary 	schedule.
Delia 	Christian 	(formerly Mitchell) 	was 	hired 	in 	July 	1983
as a speech specialist 	for 	the 	1983-84 	school year. 	The
employment contract was 	in exactly 	the 	same 	format 	as Marks 1
1983-84 	employment contract 	except 	it 	called 	for 	179 	days 	plus
11 	anticipated 	extra days. 	The 	salary was 	D-l of 	the 	salary
schedule. 	Christian 	signed 	her 	acceptance 	of 	the contract 	on
July 	13, 	1983. 	Christian testified that 	the District advised
her 	by 	letter 	in August 	1984 	that 	her 	1984-85 	work 	year 	would
be 	190 	days.
4

Both Marks 	and 	Christian 	denied 	that 	District
representatives 	had made 	any effort 	to 	negotiate 	a change 	in
work years 	that 	either 	was 	employed.
Connie Estrella, 	secretary to the 	superintendent, 	testified
that 	under 	standard procedures 	job announcements 	are 	to 	be
posted 	and 	distributed 	in 	the 	school mail 	and 	by 	regular 	mail
to 	the Association president. 	In July or August 	1982 Estrella
caused 	to 	be 	distributed copies of 	a 	job 	announcement 	for 	the
position of 	Itinerant 	Language, 	Speech 	and 	Hearing 	Specialist,
at the District which called 	for 	a work year 	of 	196 days. 	The
salary 	specified 	was 	placement 	on 	the 	teachers' 	salary
schedule. 	In July 	1983 Estrella caused to be distributed a
notice 	for 	the 	same position which called 	for 	a work 	year 	of
196 days. 	Again 	the 	salary was placement on 	the 	salary
schedule. 	The notice 	she 	said was posted, 	placed 	in the 	school
mails and 	sent 	to 	the home of 	the president of 	the 	Association.
Ron Flora, 	superintendent of the District, 	testified that
in 	the 	summer 	of 	1983 	he 	learned 	that 	the 	speech 	therapist was
working 	a 	longer year 	than 	regular 	unit members. 	He 	was 	unable
to 	find 	rationalization 	for 	the 	196 workdays. 	He did hire 	a
speech therapist 	in that 	summer 	for 	190 days 	(Mitchell). 	The
flyer, 	announcing the position, 	he said, 	stated 190 days.
Flora 	testified 	that 	he 	told 	the 	Association 	that 	he 	had 	a
problem. 	However, 	he was not specific 	about when or who 	in the
Association he 	spoke 	to. 	The District did 	try 	to 	reduce 	the
5

work year 	for 	both 	speech 	therapists 	said 	Flora. 	The 	first
formal evidence of this effort is a May 18, 	1984, 	letter to Dee
Thomas, 	president of EVEA which alluded 	to, 	among 	other 	things,
"standardization 	and 	evaluation of 	speech 	teachers 	with 	five
additional days". 	Also, 	included within the 	District's
reopener provisions 	(for 	1984-85) 	was 	language providing 	that
the 	District 	would 	have 	authority 	to 	extend 	individual 	unit
member's 	work year 	by 	individual contracts.
Flora denied 	negotiating 	with 	either 	of 	the 	speech
therapists. 	However, 	after 	a grievance proceeding he had a
discussion with one of the therapists, 	he 	said, 	about the
confusion. 	The 	therapist had come 	to 	see him. 	He 	told 	the
person 	that 	"they 	should 	keep 	things 	the 	way 	they were 	at
present."
James Caldwell, 	at the time 	the chief negotiator 	and 	the
grievance chairman 	for 	the Association, 	said 	that 	he 	learned of
the 	extra 	workdays 	for 	Kathy Marks 	for 	the 	first 	time 	on
June 	4, 	1984. 	The grievance committee 	then met with Flora on
the 	issue. 	Caldwell 	said he 	thought 	a 	resolution had 	been
reached. 	Flora 	testified 	that 	he 	told 	EVEA the 	District 	had
made a mistake. 	In 	response 	to an Association 	request,
however, 	he was 	unwilling 	to 	reduce 	to writing 	that 	the
District was 	in error. 	He 	said he 	reneged 	on the conversation
with 	the 	union 	after 	speaking 	with 	the 	District 	representative
6

about 	the matter. 	He 	was 	uncertain 	that 	the 	District 	had made
a mistake.
Later, 	the grievance committee 	requested 	information 	from
the District. 	Information provided by 	the District 	in 	the
first week 	of 	August 	1984 	confirmed 	that Marks 	had 	worked 	196
days 	the previous 	two 	school years 	and 	that Mitchell had worked
190 days. 	The District also provided copies 	of 	the 	employment
contracts 	for 	Marks 	and 	Christian described 	above 	and 	a copy 	of
a memo from Reed 	to Flora dated August 	17, 	1984, 	regarding 	the
workdays 	for 	the 	therapist 	for 	the 	1984-85 	school year. 	Reed
noted,
Although 	the matter 	has 	not 	been 	settled
by the 	negotiation 	team, 	a practical
decision 	is 	to 	bring 	both 	Kathy Marks 	and
Delia Mitchell 	in one 	week 	ahead 	of 	all
teachers. 	Therefore, 	their first working
day will be August 21, 	1984, 	and I 	am
sending 	letters 	to 	both 	of 	them 	in 	that
regard.
Caldwell 	testified 	that 	nurses 	and 	speech 	therapists 	are
paid 	a per diem salary 	for days 	in excess 	of 	the 	number 	of days
2
per year 	regular 	teachers 	are 	employed. 	The per 	diem 	rate
is 	established 	by dividing 	the 	salary 	schedule 	rate 	by 	179.
However, 	when a 	teacher 	is employed for an extra day, 	he or 	she
is paid 	an hourly 	rate 	based 	upon 	the 	contract 	salary
schedule. 	Caldwell's 	testimony was 	not 	rebutted 	by 	the
District.
2Nurses 	work 	185 	days 	according 	to 	Caldwell.
77

ISSUE
The 	issue 	in this case 	is whether 	the District violated
subsection 	3543.5(c) 	by contracting 	with 	and 	employing 	the 	two
speech 	therapists 	for more days 	than provided 	for 	in 	the
contract.
CONCLUSIONS 	OF 	LAW
The 	Public 	Employment 	Relations 	Board 	has 	established 	that
an 	employer's 	unilateral change 	about 	any matter 	within 	the
scope of 	representation 	is 	a per 	se 	violation of 	the 	statute.
See 	Pajaro Valley Unified School District 	(5/22/78) 	PERB
Decision No. 	51 	[2 PERC 2107]; 	San Mateo County Community
College District 	(6/8/79) 	PERB Decision No. 	94 	[3 PERC 10080];
San Francisco Community College District 	(10/12/79) 	PERB
Decision No. 	105.
Government Code 	section 	3543.5 	provides 	that 	it 	is 	unlawful
for 	a public 	school employer 	to deny 	to 	employee 	organizations
rights 	guaranteed 	to 	them by 	the 	Educational 	Employment
Relations Act 	(hereafter EERA) 	or 	to 	refuse or 	fail 	to meet and
negotiate 	in good 	faith with 	an 	exclusive 	representative.
Under 	section 	3543.1(a) 	the exclusive 	representative 	is
granted 	the 	right 	to 	represent 	their 	members 	in 	their
employment 	relations with 	the 	employer. 	The 	latter 	is charged
with 	an 	absolute duty 	to meet 	and 	negotiate 	with 	the 	exclusive
representative 	upon 	request 	with 	regard 	to matters 	within 	the
scope of 	representation. 	(Section 	3543.3.)
8

In Walnut Valley Unified School District 	(3/30/81) 	PERB
Decision No. 	160, 	the board addressed a charge of bypassing the
exclusive 	representative 	where 	the 	employer 	extended 	overtime
opportunities 	to 	four members of 	the 	bargaining 	unit. 	Said
PERB:
The 	law 	regarding 	employers 	negotiating
directly 	with 	their 	employees 	and 	bypassing
the 	designated 	bargaining 	representative 	is
clear. 	Section 3543.3 of 	the EERA, 	requires
the 	employer 	to 	negotiate 	and 	bargain 	in
good 	faith 	once 	an 	employee 	organization 	has
been duly 	designated 	as 	the 	exclusive
representative 	for 	a given group of
employees.3 This 	obligation 	imposes on
the 	employer 	the 	requirement that 	it provide
the 	exclusive 	representative 	with 	notice 	and
the 	opportunity 	to 	negotiate 	on proposed
changes of matters within 	the 	scope 	of
representation. 	Unilateral 	action 	taken
without 	fulfilling 	this 	obligation
constitutes a 	refusal to negotiate 	in good
faith. 	San Mateo County CCD 	PERB Decision
No. 	94 	(6/8/79). 	An employer may not, 	in
the 	presence 	of 	an exclusive 	representative,
unilaterally 	establish 	or 	modify 	existing
policies covering, 	for example, 	overtime pay
rates, 	the selection of employees to work
overtime, 	or 	the definition of overtime
hours. 	(Underlining 	in original. 	Footnote
as per original, renumbered below.)
3Section 	3543.3 	reads:
A public 	school 	employer 	or 	such
representatives 	as 	it may designate 	who may,
but need not be, 	subject to either
certification 	requirements 	or 	requirements
for 	classified employees 	set 	forth 	in 	the
Education Code, 	shall meet 	and 	negotiate
with 	and 	only with 	representatives 	of
employee 	organizations 	selected 	as 	exclusive
representatives 	of 	appropriate 	units 	upon
request with 	regard 	to matters 	within 	the
scope of 	representation.
9

PERB held 	that 	to 	prove 	that 	the 	employer 	has 	unlawfully
bypassed 	the 	exclusive 	representative 	by 	"negotiating" 	directly
with employees, 	it must be demonstrated that the District
sought 	either 	to create a 	new overtime 	policy of 	general
application or 	to obtain a waiver 	or 	modification of 	existing
policy 	applicable 	to 	those 	employees.
This case does not address 	overtime policy per 	se 	but
rather 	the 	employees work year 	and 	rate of 	pay 	for 	extra days
worked. 	In 	the 	summer of 	1982 while 	negotiating with 	the
exclusive 	representative 	for 	the 	speech 	therapists, 	among
others, 	on a successor contract 	including 	the work year, 	the
District 	separately 	offered 	and 	secured 	the 	services 	of Marks
for 	a work 	year 	different 	than 	that 	secured 	for 	the 	other 	unit
members and 	at 	a different 	rate of pay. 	Again 	in 	1983 	for 	the
1983-84 	school year, 	after 	an agreement had 	been 	secured with
the 	exclusive 	representative 	for 	a 	firm work year 	for 	unit
members 	(179 days 	for 	returning 	teachers 	and 	180 	days 	for 	new
teachers), 	the District again secured work years 	from Marks
(for 	196 days) 	and from Christian 	(for 	190 	days) 	which were
separate 	and different 	than 	that 	for 	other 	unit members.
Finally 	in 	1984 	regarding 	the 	1984-85 work year, 	the employer
negotiated 	different 	work 	years 	and 	different pay 	for 	the
speech therapists 	from other unit members. 	Thus, 	in 1982 the
District, 	by dealing directly with Marks, 	sought and obtained 	a
work 	year 	different 	from 	that 	negotiated 	with 	the 	exclusive
10

representative, 	and 	in 1983 and 	the 	following year, 	obtained
modification of 	the 	work year 	it 	had 	bargained 	for 	and was
committed 	to 	by 	agreement with 	the 	exclusive 	representative.
In both 	instances, 	its conduct 	falls within the 	ambit of Walnut
Valley Unified 	School District, 	supra.
The 	employer's defense 	is predicated 	upon 	two grounds. 	It
argues 	that 	the 	facts do not 	support 	a 	finding 	that 	the
District 	negotiated with the 	speech therapists, 	as 	the 	number
of days were 	set 	before 	the employees were hired. 	The employer
further 	argues 	that 	the practice 	of 	hiring 	speech 	therapists
for 	a 	longer 	work 	year was 	common 	knowledge 	for 	several years
and 	that 	the 	Association was 	alerted 	to 	the practice 	by virtue
of 	the 	superintendent's 	secretary 	mailing 	notice 	of 	the
positions 	to 	the 	Association's president 	and 	distributing 	them
to all the 	school 	sites. 	These 	arguments 	are not persuasive.
Both Marks 	and Mitchell 	testified 	that 	they did 	not
negotiate 	with 	the 	District 	about 	the 	number 	of 	workdays 	they
were to be employed. 	However, 	it 	is clear that the 	simple
transaction of 	the 	District's 	offering 	positions 	to 	them 	for
days 	numbering 	more 	than was provided 	for 	in 	the collective
agreement, 	and 	their 	acceptance of 	the 	employment contracts was
a 	form of 	negotiation, 	albeit 	limited. 	The District
unilaterally 	altered 	the 	number 	of workdays, 	from 	that called
for 	in the 	agreement 	and 	further, 	varied 	the 	terms 	between 	the
two 	speech 	therapists 	by giving Marks 	a 	contract 	for 	196 	days
11

and Mitchell a contract for 	190 days. 	In each 	instance, 	the
District was conveying 	the 	terms of 	a proposed work year, 	and
the 	therapists were 	accepting 	those 	terms. 	Those 	agreements
were 	a 	variance 	from what was provided 	for 	in 	the 	agreement
negotiated 	with 	the 	exclusive 	representative 	of 	certificated
employees, 	including speech therapists. 	In addition, 	according
to 	the 	unrebutted 	testimony of 	Caldwell, 	the 	speech 	therapists
were paid 	a 	rate of 	salary 	for 	the 	extra days 	services
different 	from other 	unit members 	rate 	of 	pay 	for 	added 	days
worked.
In J.I. 	Case Co. 	v. National Lab NLRB 	(1944) 	321 U.S. 	322,
88 	L.Ed. 	762 cited 	by PERB 	in San Francisco Community College
District 	(10/12/79) 	PERB Decision No. 	105, 	the United States
Supreme Court 	said:
The 	very 	purpose 	of providing 	by 	statute 	for
the collective agreement 	is 	to 	supersede 	the
terms 	of 	separate 	agreements 	of 	employees
with 	terms 	which 	reflect 	the 	strength 	and
bargaining 	power 	and 	serve 	the 	welfare 	of
the group. 	Its 	benefits and advantages 	are
open 	to 	every employee 	of 	the 	represented
unit, 	whatever 	the type or 	terms of his
pre-existing 	contract 	of 	employment.
In Modesto City Schools 	(3/8/83) 	PERB Decision No. 	291, 	the
PERB 	found a direct offer 	to employees, 	without 	first 	such
offer 	being communicated 	to 	the 	exclusive 	representative 	to 	be
a 	violation of 	the 	employer's 	obligation 	to 	bargain only with
the 	exclusive 	representative. 	Here, 	not only did 	the District
make 	offers 	of 	employment 	at 	variance 	from the 	negotiated
12

collective 	agreement 	to members 	of 	the 	unit without 	first
providing 	the 	Association with 	an opportunity 	to 	negotiate 	the
matter, 	but consummated the 	agreements, 	with different terms
between the 	two unit members.
The District 	further 	urges 	that principles of 	equitable
estoppel be 	invoked to the 	facts 	in this case. 	It urges 	that
the 	extended 	work 	year 	for 	the 	therapists 	was common 	knowledge
for the past several years. 	Further, 	it notes the 	testimony of
Estrella, 	secretary to 	the 	superintendent, 	that 	she distributed
notices of 	the 	positions 	to 	the 	school 	sites 	and mailed copies
to the home of 	the Association president. 	These 	arguments do
not 	involve 	equitable 	estoppel 	but 	are contentions 	that 	the
union waived 	its 	right 	to 	bargain 	the 	extended work 	year. 	They
too, 	are without merit.
Waiver 	is 	an 	affirmative defense 	that must 	be 	raised 	in 	the
Respondent's answer 	or 	the defense 	itself 	is waived. 	Walnut
Valley Unified 	School District 	(2/28/83) 	PERB Decision
No. 	289. 	See also PERB Regulation 32644(c)(6), 	California
Administrative Code, 	title 	8. 	The District's answer 	did not
refer 	to 	the 	Association's 	conduct by way 	of contending 	waiver.
Moreover, 	for 	an employer 	to show that a union waived 	its
right to 	negotiate, 	it must demonstrate either 	"clear and
unmistakable" 	language, 	or demonstrative behavior waiving 	a
reasonable 	opportunity to 	bargain over 	a decision 	not 	already
firmly made 	by 	the 	employer. 	Sutter 	Union High School District
13

(10/7/81) 	PERB Decision No. 	175; 	San Mateo Community College
District, 	supra; 	and 	see Amador Valley Joint 	Union High 	School
District 	(10/2/78) 	PERB Decision No. 	74. 	Additionally, 	a
waiver must be 	an 	intentional 	relinquishment of 	the 	union's
rights 	under 	EERA. 	San Francisco Community College District
(10/12/78) 	PERB Decision No. 	105. 	Los Angeles Community
College District 	(10/18/82) 	PERB Decision No. 	252.
There 	is 	simply 	no 	evidence 	to 	suggest 	that 	the 	extended
work year was common 	knowledge. 	The 	evidence 	shows 	that 	the
1982-83 	was 	the 	first year 	that 	a 	speech 	therapist 	(Marks)
worked 	longer 	than provided 	in 	the collective agreement. 	Even
Flora, 	the superintendent, 	was not aware of a longer work year
for 	therapists 	until 	the 	summer 	of 	1983. 	While he 	testified
that he 	told 	the 	union of 	the problem, 	he did not 	specify when
he conveyed that 	information to the union. 	Caldwell, 	the
Association grievance chairperson, 	did 	not 	learn of 	the problem
until 	June 	1984. 	The District 	failed 	to establish 	facts 	that
the 	extended 	work year was 	common 	knowledge 	for 	several years.
Nor 	does 	the 	evidence 	that 	the 	superintendent's 	secretary
caused copies 	of 	the 	job announcements 	to 	be 	distributed 	to 	the
school 	sites 	and 	mailed 	to 	the 	Association 	president 	establish
waiver.
In 	the 	first place Estrella 	testified 	that 	it was 	"standard
procedure" 	for 	the District to 	send notices of 	job
announcements 	to 	the 	Association president 	along 	with 	other
14

distribution patterns. 	She did 	not 	testify that 	she did 	in
fact 	send 	the 	1982 	job announcement 	to 	the 	individual 	then
holding office with 	the Association. 	There 	is 	no 	evidence 	that
the Association did 	in 	fact 	receive 	the 	notice of 	the 	job
announcements.
In 	the 	second place, 	assuming 	notice was 	sent to 	the
Association president, 	what was 	sent was 	a notice of 	a deadline
for 	time 	to 	file 	for 	a position, 	not 	an 	intention by the
District 	to change 	the work year 	policy applicable 	to 	unit
members. 4
The District 	is 	required 	to give prior 	notice 	to 	the
Association of 	an 	intended change 	in policy. 	Archohe 	Union
School District 	(11/23/83) 	PERB Decision No. 	360. 	In 1983 the
District 	sent 	notice 	of 	the 	job 	announcement 	on Marks' position
but 	there 	is 	no 	evidence 	that 	it did 	so 	on 	the position
occupied 	but 	later 	filled by Christian. 	In any 	event, 	notice
after 	the 	fact 	is not 	notice 	in compliance with 	the
requirements of good 	faith 	bargaining. 	The 	District
4It 	is noteworthy that 	in 	the 	summer 	1982, 	when the 	first
notice was distributed, 	the District 	and 	the Association were
in negotiations 	for 	a 	successor 	agreement 	to 	the one 	that
expired 	in June 	1982. 	No agreement on a successor 	agreement
was reached until April 1983. 	In LA-CE-2028, 	a companion case
involving 	the 	same parties, 	and 	the 	formal hearing of which was
held on the 	same day as 	the 	instant case, 	it was established
that 	the 	parties 	reached 	a 	tentative 	agreement on 	the 	1982-83
work year 	for 	unit members 	in September 	1982. 	Thus at 	the 	time
the 	1982 	notice was 	sent 	the parties 	were 	then bargaining 	the
work year 	for 	unit members.
15

unilaterally made the decision to employ two speech therapists
for more days 	than unit members 	and 	then 	sent notices out.
Request 	for 	negotiations would 	have 	been 	futile 	at 	that point.
Arvin Union School District 	(3/30/83) 	PERB Decision No. 	300.
The 	job 	announcement was 	not 	to 	the Association of 	a matter
about 	which 	the 	District was 	extending 	an opportunity 	to
negotiate, 	but 	rather, 	of a decision already made by the
District 	that the work year was to be 196 days, 	in the case of
Marks' position, 	and 190 days, 	in the case of Mitchell's
position. 	Finally, 	the 	job announcement did not convey notice
to 	the Association 	that the pay 	arrangements were 	to 	be
different 	than 	the 	arrangement described by Caldwell. 	That 	is,
extra days 	of 	service were 	to 	be on an hourly rate. 	As 	he
testified 	without 	refutation, 	the 	therapists were paid 	a per
diem rate 	for 	the 	extra days 	of work. 	For 	the 	foregoing
reasons, 	no waiver 	is found 	in this case.
It 	is concluded 	that 	the District violated 	its duty to
bargain 	in good 	faith 	by 	bypassing 	the 	exclusive 	representative
and 	securing 	employment contracts 	with 	individual 	members 	of
the 	unit, 	with 	terms different 	than what was provided 	by the
collective bargaining 	agreement. 	This conduct 	is 	a violation
of 	subsection 3543.5(c). 	It is concurrently a violation of
subsections 	3543.5(a) 	and 	(b). 	San Francisco Community College
District, supra.
16

REMEDY
Under 	subsection 	3541.5(c) 	PERB has 	the power,
. . . 	to 	issue 	a decision 	and 	order
directing 	an offending 	party 	to cease 	and
desist 	from the 	unfair 	practice 	and 	to 	take
such affirmative action, 	including 	but not
limited 	to 	the 	reinstatement 	of 	employees
with or 	without back pay, 	as will effectuate
the policies of 	this chapter.
In 	the 	instant case, 	it has been 	found 	that the District
violated subsections 3543.5(a), 	(b), 	and 	(c) 	by bypassing the
Association 	and 	negotiating 	with 	unit 	members 	regarding 	work
year 	and 	rates 	of pay. 	It 	is 	appropriate 	that 	the 	District 	be
ordered 	to cease 	and 	desist 	from such conduct.
The Association 	seeks 	an order 	restoring 	the 	status 	quo
conditional 	upon 	the 	request of 	the 	Association. 	Restoration
of 	the 	status quo 	ante of 	the 	employer's 	unlawful 	act 	is 	the
traditional 	remedy 	for 	a unilateral change 	in terms 	and
conditions of 	employment by the 	employer. 	Rio Hondo Community
College District 	(3/8/83) 	PERB Decision 	292. 	It 	is appropriate
therefore 	to order 	the District, 	upon the 	request of 	the
Association, 	to 	restore 	the 	speech 	therapists work year 	to 	that
prevailing 	at 	the 	time of 	the 	unlawful change.
Finally, 	it 	is appropriate that 	the District should be
required 	to post a notice 	incorporating 	the 	terms 	of 	this Order
attached 	as 	an 	appendix hereto. 	The 	notice 	should 	be
subscribed 	by 	an 	authorized 	agent 	of 	the 	Lake 	Elsinore 	School
District 	indicating 	that 	they will comply with 	the 	terms 	of
17

this Order. 	The notice shall not be 	reduced 	in 	size. 	Posting
of 	such 	notice 	will provide 	employees with 	an 	additional
statement 	that 	the 	District 	has 	acted 	in 	an unlawful manner 	and
is 	being 	required 	to 	cease 	and 	desist 	from 	such 	activity 	and
take such other 	remedial 	steps. 	It effectuates 	the purposes of
the 	EERA that employees be 	informed of 	the 	resolution of 	this
controversy 	and 	the 	posting 	of 	such 	notice 	will 	announce 	the
District's 	readiness 	to comply with 	the 	ordered 	remedy.
(Placerville 	Union High 	School 	District 	(9/18/78) 	PERB Decision
No. 	69; 	Pandol & Sons v. ALRB & UFW 	(1979) 	98 Cal.App.3d 580,
587; NLRB v. Express Publishing Co. 	(1941) 	312 U.S. 	[8 LRRM
415].)
PROPOSED 	ORDER
Upon 	the 	foregoing findings of 	fact, 	conclusions of law,
the entire 	record 	in this case, 	and pursuant to 	section
3541.5(c) 	of the Educational Employment Relations Act, 	it 	is
hereby ordered 	that 	the 	Lake 	Elsinore 	School District, 	its
Board of 	Trustees, 	Superintendent and 	its 	agents 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally making changes 	in 	the 	employee 	work
year 	and 	rates 	of 	pay 	without providing 	notice 	and 	a 	reasonable
opportunity 	to 	negotiate 	to 	the 	Elsinore Valley 	Education
Association, CTA/NEA.
2. 	Denying 	to 	the Elsinore Valley Education
Association, 	CTA/NEA, 	rights guaranteed by the 	Educational
18

Employment Relations Act, 	including 	the 	right to 	represent 	its
members.
3. 	Interfering with employees 	in 	the exercise of
rights 	guaranteed 	by 	the 	Educational 	Employment Relations Act,
including 	the 	right 	to 	be 	represented 	by 	their 	chosen
representative.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES OF 	THE 	EDUCATIONAL EMPLOYMENT RELATIONS
ACT:
1. 	Upon 	request, 	meet with and 	negotiate with 	the
exclusive 	representative 	regarding 	the 	work year 	and 	rate 	of
pay 	for 	speech 	therapist positions.
2. 	Upon 	request of 	the Association, 	reinstate the
speech 	therapists work year 	and 	rate 	of 	compensation 	to 	that 	of
unit members 	at 	the 	time of 	the 	unlawful change.
3. 	Within ten 	(10) 	workdays of 	service of 	a 	final
decision 	in this matter, 	post at all 	school 	sites and all other
work 	locations 	where 	notices 	to certificated 	employees 	are
customarily placed, 	copies of 	the notice 	attached hereto 	as 	an
appendix. 	The notice must be 	signed 	by 	an authorized 	agent of
the 	District 	indicating 	that 	the 	District 	will 	comply with 	the
terms of 	this order. 	Such posting 	shall be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken to 	insure 	that 	this notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or covered by any material.
4. 	Upon 	issuance of 	a final decision, 	make written
notification of 	the 	actions 	taken 	to comply with 	the 	Order 	to
19

the 	Los Angeles 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in 	accordance with his/her 	instructions.
Pursuant to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become final on June 	3, 	1985, 	unless a party files a timely
statement of exceptions. 	In accordance with the 	rules, 	the
statement of 	exceptions 	should 	identify by page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code 	title 	8,
part III, 	section 	32300. 	Such statement of exceptions and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment Relations 	Board 	at 	its headquarters 	office 	in
Sacramento 	before 	the close 	of 	business 	(5:00 p.m.) 	on June 	3,
1985, 	or 	sent by telegraph or certified United States mail,
postmarked 	not 	later 	than 	the 	last day 	for 	filing 	in 	order 	to
be 	timely 	filed. 	See California Administrative Code, 	title 	8,
part III, 	section 32135. 	Any statement of exceptions and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to 	this proceeding. 	Proof of 	service 	shall 	be
filed 	with 	the 	Board 	itself. 	See California 	Administrative
Code, 	title 8, 	part III, 	sections 32300 and 32305.
Dated: 	May 13, 	1985
GARY M. GALLERY
Gary M. Gallery 	Law Judge
Administrative Law Judge