Modesto City and High School Districts (PERB 0566E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO 	TEACHERS 	ASSOCIATION,
Charging 	Party,
v.
MODESTO 	CITY 	AND 	HIGH
SCHOOL 	DISTRICTS,
Respondent.
Case No. 	S-CE-286
S-CE-287
PERB Decision 	No. 	566
April 10, 	1986
Appearances; 	Ken 	Burt 	for 	Modesto Teachers Association; 	Breon,
Galgani, 	Godino 	& 	O'Donnell 	by Keith V. 	Breon 	for Modesto City
and 	High 	School 	Districts.
Before Hesse, 	Chairperson; 	Morgenstern, 	Burt and Craib, 	Members.
DECISION
HESSE, 	Chairperson: 	This case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed
by 	both 	the 	Modesto 	Teachers 	Association 	(Association 	or 	MTA)
and 	the Modesto City and 	High 	School 	Districts 	(District) 	to
the proposed decision 	of 	an 	administrative 	law 	judge 	(ALJ).
The ALJ 	found 	that 	the 	District 	violated 	section 	3543.5(a),
(b), 	and 	(c) 	of the Educational Employment Relations Act 	(EERA
or Act),
1	1 	when 	it 	(1) 	unilaterally extended the teachers'
JEERA 	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
)
)
)
)
)
)
)
)
)
)
___________ )

workday by ten minutes; 	(2) 	shortened their 	lunch period; 	and
(3) 	established 	a minimum day 	in 	September 	1979.
Having 	reviewed 	the 	proposed 	decision 	in 	light 	of 	the
exceptions 	and 	the 	entire 	record 	in 	this 	case, 	the Board
affirms 	in 	part 	and 	reverses 	in part 	the 	proposed 	decision,
consistent 	with 	the 	following 	discussion.
FACTS
MTA and 	the 	District 	were 	parties 	to 	a 	collective
bargaining agreement 	that would 	expire on August 	31, 	1979. 	On
May 	7, 	1979, 	MTA submitted 	initial 	proposals 	for 	a 	successor
contract 	to 	the District. 	The proposals 	included, 	inter 	alia,
limitations 	on 	faculty meetings, 	a 	reduction 	in 	the number 	of
workdays 	(from 182 to 178), 	changes 	in hours of work, 	and a
change 	in 	the 	number 	and purpose 	of minimum days.
When 	the parties 	first met on May 23, 	1979, 	the District
sought 	clarification 	of the MTA proposal. 	On June 	11, 	1979,
the 	school 	board 	adopted 	the 	District's 	initial 	proposal. 	That
proposal, 	in part, 	sought 	to establish minimum hours of work, 	a
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.
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30-minute 	lunch 	period, 	and 	an 	extended 	student 	attendance
day. 	The 	District's 	proposal 	did 	not 	contain 	any 	reference 	to
a 	calendar 	for 	any of 	the 	schools.
The 	parties 	participated 	in 	the 	first 	formal 	negotiating
session on June 	16, 	1979, 	where ground 	rules were discussed.
The 	parties 	agreed 	to 	review the 	entire 	MTA proposal 	and
further 	agreed 	that, 	should 	the 	District 	declare 	some 	item 	in
MTA's 	proposal 	to be 	out 	of 	scope, 	MTA would 	have the 	right 	to
raise 	a 	new subject.
On June 	18, 	1979, 	the parties proceeded to discuss 	the MTA
proposal. 	At 	the 	end 	of 	that 	session, 	they had progressed 	in
discussions 	only through Articles 	I, 	II 	and a portion 	of
Article 	III.
Later 	that 	day, 	at a public school 	board meeting, 	the board
adopted 	a 	staff 	proposal 	on 	a 	calendar 	for 	the year-round
school, 	Robertson Road Elementary School 	(Robertson Road). 	The
agenda 	item 	included 	an 	acknowledgement 	that 	calendars 	are
negotiable 	issues 	and 	a 	statement 	of 	belief 	that 	PERB would
allow 	the 	District 	to 	adopt 	calendars 	one month 	in 	advance 	and
for 	one month 	at 	a 	time. 	The 	calendar 	established 	July 	16 	and
17 	as 	teacher 	pre-school workdays 	and July 	18 	to August 	10 	as
student 	attendance 	days. 	At 	no 	time prior 	to this 	board
meeting 	did 	either 	party 	raise 	in 	negotiations 	the matter 	of
the Robertson 	Road 	calendar. 	Although 	copies 	of 	the 	agenda
were 	sent 	to 	several 	MTA officers 	and 	negotiating 	team members,
no 	MTA 	representative 	addressed 	the 	board 	on 	the 	subject 	of
calendars.
3

The 	parties 	had 	further 	negotiating 	sessions 	on 	June 	21,
22, 	and 23, 	1979. 	At these meetings, 	the parties 	reviewed the
Association's 	proposals 	in 	sequential 	order. 	They discussed
hours 	of 	employment, 	minimum days, 	quarterly 	review days, 	and
preparation 	periods. 	The 	Association 	wanted 	to maintain 	the
status 	quo 	regarding 	hours 	of 	employment, 	but 	the District
wished 	to 	lengthen 	the 	student 	attendance 	day, 	which would
necessitate an 	increase 	in 	the teachers' 	workday.
On June 23, 	the parties 	engaged 	in a 	debate over 	the
process 	of 	bargaining. 	The 	District 	insisted 	that 	MTA present
any 	new proposals 	that 	it 	had 	right 	then 	and 	not 	continue 	to
raise 	new proposals 	throughout 	the process. 	MTA 	insisted 	the
parties 	had 	agreed 	that, 	if 	the 	District 	refused 	to bargain 	on
any 	item 	in MTA's 	initial proposal, 	then 	it 	(MTA) 	had the 	right
to 	substitute 	a 	new 	subject 	when 	an 	"old" 	one was 	declared 	out
of 	scope 	by 	the 	District. 	The 	District 	refused 	to 	continue
bargaining 	until 	MTA 	revealed 	all 	of 	its 	proposals.2
Jon Walthers, 	chairman 	of 	the MTA negotiating team, 	sent 	a
mailgram 	on 	that 	day 	(the 	23rd) 	to John Wilson, 	the District's
negotiator, 	requesting negotiating sessions 	for 	the 	25th, 	26th
and 	27th 	of June. 	This mailgram was 	received 	on 	the 	26th.
Wilson 	felt 	he 	could 	not 	get 	his 	team 	together 	for 	that 	day 	or
the 	27th 	so, 	on 	the 	same day, 	he 	sent 	a 	return mailgram to
2The 	District 	filed 	an 	unfair 	practice 	charge 	against 	MTA
on June 25, 	1979. 	This unfair practice charge, 	S-CO-42, 	was
later 	withdrawn 	at 	the 	commencement 	of 	the 	formal 	hearing 	in
this case.
4

Walthers:
I 	received 	your 	mailgram 	on 	6/26/79
requesting 	that 	bargaining 	on 	a 	successor
contract 	occur 	on 	6/25, 	6/26 	and 	6/27,
1979. 	Has 	the 	MTA position 	changed 	from
what 	the 	MTA 	stated 	it 	to 	be 	on 	6/24/79? 	If
so please 	state 	in 	writing 	that 	revised
position.
On 	June 	27, 	Walthers 	sent 	a 	letter 	to Wilson 	requesting
meetings on August 13, 	14, 15, 	16, 	17, 	21, 22, 23, and 24. 	The
Association 	did 	not 	request 	to meet 	in July.
On 	July 	6, 	Wilson 	sent 	a 	letter 	to Walthers 	acknowledging
both 	Walthers 1 mailgram 	of 	the 	23rd 	and 	the 	letter 	of 	the
27th. 	Wilson 	had 	not 	yet 	received 	a 	response 	to 	his 	June 	28
mailgram 	and 	so 	reiterated 	the 	District's 	position:
. 	. 	. 	[W]e 	are prepared to 	resume
negotiations 	at 	any mutually 	agreed 	to 	time
if your 	position 	has 	changed 	to 	one 	of
presenting 	all 	known 	proposals 	at 	this 	time
and 	not 	withholding 	proposals 	to 	submit
based 	upon 	the 	District's 	reaction 	to 	those
previously 	presented.
The District 	reiterated 	this position 	in 	a July 27, 	1979
letter 	to 	Ken 	Burt, 	executive director 	of 	MTA.
On August 3, 	1979, 	the director of personnel, 	Alberta
Martone, 	sent 	a 	memorandum 	to 	the 	District 	employees 	regarding
reemployment. 	The memo 	requested 	the 	return 	of 	a 	form
indicating the 	employees' 	election 	for 	reemployment. 	The memo
also 	designated 	September 	4, 	1979 	as 	the 	"tentative 	date 	for
the 	first 	workday."
Also on August 	3, 	1979, 	Burt 	sent a 	letter 	to Wilson. 	The
letter 	stated:
5
5

This 	is 	the 	follow 	up to 	our 	phone
conversation 	of 	today where 	I 	indicated 	that
the 	MTA 	has 	and 	continues 	to 	demand 	to
bargain 	with 	the 	Modesto 	City 	Schools 	and
High 	School 	District 	on 	the 	subject 	of
calendar 	including 	opening 	day.
It 	appears 	you are 	about 	to 	request 	the
Board 	of 	Education 	to 	unilaterally 	adopt
part 	of 	the 	school 	calender 	[sic] 	without
even 	attempting 	to 	bargain 	the 	same. 	(I
received 	a 	Board 	agenda 	to 	that 	effect
today.) 	You 	are 	requested 	to 	cease 	and
desist for 	[sic] 	this, 	and it is
specifically 	requested 	that 	this 	item 	be
removed 	from action 	of 	the 	Board 	of
Education 	until 	the 	employer 	has 	exhausted
his 	[sic] 	duty to bargain.
A board meeting was 	scheduled 	for August, 	6, 	1979. 	The
school 	calendar 	was 	on 	the 	agenda. 	This 	agenda 	item contained
the 	same 	prefatory 	language 	regarding 	recognition 	that 	the
calendar was 	negotiable, 	previously 	stated 	on 	the June 	18
agenda 	item 	regarding 	the Robertson 	Road 	School. 	The 	item was
a 	proposal 	to 	establish 	calendars 	for 	the 	second 	and 	third
school 	months 	(through 	September 	21) 	for 	Robertson 	Road 	and 	to
schedule 	the 	first 	month 	(September 	4-28) 	calendar 	for 	the
regular 	schools.
At 	the August 	6, 	1979 	school 	board meeting, 	Burt 	urged 	the
board 	not 	to 	adopt 	the 	calendar. 	The 	board 	adopted 	the
proposed 	calendar 	for 	the 	Robertson 	Road 	School 	for 	the 	balance
of 	August, 	but 	deferred action 	on 	the 	proposed third month
calendar 	for 	Robertson 	Road 	and 	on 	the 	proposed 	regular 	school
calendar.
At 	the negotiating session on August 	11, 	1979, 	Walthers
presented 	MTA's 	total 	package. 	The 	total 	package 	included 	a
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1979-80 	school 	year 	calendar 	grid 	for 	the 	regular 	schools.
Wilson 	requested 	negotiations 	on 	the 	subject 	of 	opening 	day 	of
school, 	but Walthers 	responded 	that 	MTA was 	not 	ready 	to
discuss 	calendar. 	Later, 	Wilson 	stated that 	he 	felt 	the
subject 	of 	calendars 	was 	critical 	and 	requested 	discussion 	on
the 	opening 	date 	and 	first month of 	school. 	Again 	MTA
refused. 	MTA wanted 	to discuss 	other 	issues, 	such 	as 	salaries,
prior 	to 	any 	discussions 	on 	calendars.
Wilson 	asked 	if 	MTA was 	resistant 	to 	discussing 	the 	opening
day 	and 	first 	month 	of 	school. 	Walthers 	acknowledged 	that 	MTA
was 	resistant. 	He 	stated 	that 	MTA's 	position was 	that 	the
calendar 	would 	be 	discussed 	after 	the parties 	had 	covered 	such
things 	as 	economic 	items, 	class 	size, 	staffing 	ratios and
grievance 	procedures. 	The Association 	refused 	to place 	the
matter 	of 	the 	calendar 	first 	on 	the 	agenda 	for 	the 	next 	meeting.
On 	August 	20, 	1979, 	the school board took action on both
the 	Robertson 	Road 	calendar, 	and 	the 	first month 	of 	the 	1979-80
regular 	school 	year. 	The 	agenda 	item carried 	the 	following
language:
3. 	Calendar: 	District 	and Robertson Road
Although 	portions 	of 	the 	calendar 	are
bargainable 	issues, 	the time line 	is such
that 	the 	Board 	of 	Education 	must 	take
unilateral 	action 	on 	this 	issue. 	Collective
Bargaining 	Counsel 	advises 	us 	that 	adopting
the 	calendar 	approximately 	a month 	in
advance 	and 	for 	approximately 	one 	month 	at 	a
time, 	is 	still an appropriate 	action 	for 	the
Board to take. 	With this 	in mind, 	the
following 	calendars 	for 	the 	District 	and 	for
Robertson Road are proposed. 	. 	. 	.
7

The 	action 	of 	the 	board 	set 	the 	first 	month 	(through
September 	28, 	1979) 	of 	the 	regular 	schools 	and 	reiterated 	the
earlier 	action 	of 	the 	board 	on 	the 	Robertson 	Road 	School
calendar 	for July 16 	through August 	24, 	1979, 	and added 	the
next month, 	August 27 	through September 	21, 	1979, 	for that
school.
The District and MTA negotiated on August 21, 	22, 	25, 	and
26, 	1979. 	There was 	no discussion 	of calendar at 	these
meetings. 	On August 	22 and 25, 	1979, 	the discussion centered
on hours of employment. 	On August 25, 	1979, 	the District
presented 	an 	oral 	proposal 	regarding 	hours 	of 	employment 	and
minimum 	days 	and 	presented 	a 	written 	proposal 	on 	those 	subjects
the 	following 	day.
On 	August 	27, 	1979, 	the District presented a 	"grid" 	for 	the
1979-80 	calendars 	for 	the 	regular 	schools. 	The 	District
proposed 	that 	teachers 	report 	for work 	on 	September 	4, 	1979,
and 	that 	students 	start 	school 	on 	September 	6, 	1979.
On 	September 	5, 	1979, 	the 	school 	board adopted a 	60-minute
class 	cycle 	for 	students 	at 	the 	four 	comprehensive 	high
schools. 	As 	a 	result 	of 	this action, 	there were changes 	in 	the
school 	starting 	time 	and 	teacher 	lunch 	periods.
School 	started 	at 	7:40 	a.m. 	rather 	than 	7:50 	a.m. 	as 	it 	had
for 	several years past. 	There was 	no change 	in 	the time that
the 	school 	day 	ended. 	The 	new 	starting 	time 	affected 	teachers,
nurses, 	and counselors.
8
8

The 	board 	action 	changed 	the 	student 	attendance 	schedule 	at
three 	high 	schoolsN3 from 	a 	50-minute 	class 	time with 	a
5-minute 	passing 	time 	to 	a 	53-minute 	class 	time 	with 	a 	7-minute
passing 	time. 	Also, 	as 	a 	result 	of 	the new 60-minute cycle,
teacher 	lunch 	periods 	were 	changed 	by 	differing 	amounts 	at 	the
various 	high 	schools.
Walthers 	testified that, 	prior 	to 	the change, 	teachers
performed 	noontime 	supervision 	duties 	approximately 	three 	weeks
of 	the year; 	otherwise teachers were free, 	even to leave
campus. 	Although 	this 	supervision 	duty was 	eliminated, 	another
chaperone-type 	duty was added. 	That 	duty, 	however, 	did not
exceed 	the 	25-hour 	limit 	of 	the 	contract. 4
The 	District 	sought 	the 	60-minute 	cycle 	as 	a 	solution 	to
scheduling 	problems 	for 	approximately 	1850 	students 	enrolled 	in
the Regional Occupational Programs 	(ROP), 	driver 	training, 	and
college 	classes. 	The 	scheduling 	problems 	associated 	with 	the
ROP 	program 	and 	drivers 	training 	program 	had 	a 	direct 	impact 	on
the 	District's 	ability 	to 	increase 	enrollment 	and 	increase
3A 	fourth 	comprehensive 	high 	school, 	Beyer, 	operated on 	a
modular 	schedule 	which 	did 	not 	conform 	to 	the 	conventional
class 	schedule.
4Article 	IV 	in 	the 	1977-79 	contract 	provided 	for 	these
additional duties. 	It stated, 	in 	relevant part:
B. 	In 	addition 	to 	"A" 	above, 	employees 	in
grades 	7-12 	may 	be 	required 	to 	devote 	a
reasonable 	amount 	of 	time 	to 	other
duties 	assigned 	by 	the 	building
administrator.
99

revenue.
According 	to 	a 	1977 	program 	audit 	by 	the 	State 	Department
of 	Education, 	ROP 	students were 	receiving 	less 	than 	the
required 	two 	full 	hours 	of 	instruction. 	The 	reduced
instructional 	time 	brought 	about 	a 	corresponding 	reduction 	in
the 	District's 	average 	daily attendance 	(ADA) 	aid 	for 	the ROP
students.5
In 	order 	for 	the 	District 	to 	receive 	full ADA aid, 	ROP
students 	had 	to 	attend a minimum day 	(240 	minutes) 	in 	the
regular 	session 	before 	or 	after 	their 	ROP 	classes.6 With 	the
50-minute 	class period, 	ROP 	students 	had 	to 	take 	five 	regular
classes 	(275 minutes) 	to meet 	the minimum-day requirement. 	The
District 	anticipated 	that, 	if 	the 	students were 	required 	to
continue 	to 	take 	five 	classes 	for 	the 	full 	ADA, 	enrollment 	in
ROP 	would 	decrease. 	The 	60-minute 	cycle 	allowed 	students 	to
maintain 	the minimum-day 	requirement 	in 	four 	periods 	rather
than 	five. 	For 	the 	same 	reason, 	this was 	also of benefit 	to
As 	a guideline, 	the time 	spent 	by the
employee 	on 	such 	additional 	duties
should 	not 	exceed 	approximately 	25 	hours
during a school year. 	. 	. 	.
5ADA 	is 	based 	on 	actual 	instruction 	time plus 	passing
time. 	The 	District 	determined 	that 	without 	the 	60-minute
cycle, 	there would be 	a 	$110,250 	loss 	in ROP 	revenue 	due 	to 	the
reduced 	instructional 	time.
6Legislation 	effective January 1, 	1979, 	allows 	school
districts 	to 	receive, 	on a prorated basis, 	state aid for
students 	in 	ROP who 	have 	regular 	classes 	for 	less 	than 	the
minimum 	day. 	The 	District 	supervisor 	for 	vocational 	education
testified, 	however, 	that 	the District would, 	on the prorated
formula, 	still 	lose money.
10

high 	school 	students 	enrolled 	in 	and 	attending 	community
college 	classes.
Under 	a 	50-minute 	cycle, 	fewer 	students would enroll 	in 	the
ROP program. 	With 	less 	than a 	60-minute 	cycle, 	it was
projected 	that 	the 	Modesto 	ROP 	would 	fall 	short 	of 	the
requirement 	that 	20 	percent 	of 	the 	students move 	from their
home 	campuses 	to 	another ROP 	site.
Also, 	by adopting the 	60-minute cycle, 	the District's
driver 	training program 	could 	process 	more 	students, 	thereby
reducing 	the backlog 	and 	increasing 	its 	income, 	thus 	reducing
the 	expense 	of 	this program 	to 	the 	District. 	The District
projected 	an 	increase 	of 	207 	driver 	training 	students 	over
1978-79 	for 	a 	net 	savings 	of District 	funds 	of 	$5,400.
The 	District 	planned 	and 	obtained 	approval 	for 	eight 	new
ROP 	programs 	to 	begin 	in 	September 	1979. 	The application
process 	began 	about 	March 	1979 	and 	included 	comprehensive
participation 	by 	various 	advisory 	committees 	as 	well 	as 	the
Employment 	Development 	Department, 	a 	site 	administrator,
assistant 	principals, 	the school 	board, 	County Office of
Education, 	ROP Board 	of Management, 	and 	County Board 	of
Education 	in 	the 	planning 	and 	curriculum 	development. 	Since
the 	programs 	were 	based 	upon 	a 	full 	school 	year 	of 	activity,
the 	District 	had 	to 	start 	the new programs 	in 	September, 	or
delay 	implementation 	until 	the 	following 	year.
11

The 	teachers 	returned 	to work 	on 	the 	4th 	of 	September 	and
the 	students 	returned 	on 	the 	6th, 	in 	conformance with 	the
"grid" 	adopted by the 	school 	board 	in 	August. 	As 	a 	result 	of
the 	60-minute 	cycle, 	changes 	in 	starting 	time and 	lunch period
were 	also 	implemented.
On 	September 	10, 	1979, 	kindergarten 	through 	sixth grade
(K-6) 	teachers were notified by Joe DeWees, 	director 	of
educational 	services, 	that 	an 	in-service 	training 	session 	on
language 	arts was 	scheduled 	for 	September 	20, 	1979. 	The
District 	declared 	a 	minimum 	day 	for 	the 	in-service 	training,
and 	attendance 	was 	mandatory.
In previous 	years, 	the 	District 	held 	a minimum day 	every
other 	Thursday 	in 	the 	elementary 	schools. 	The 	school
principal, 	after 	consultation with 	the 	staff, 	determined 	how
days 	were 	to be 	used.
The 	Association 	had 	proposed 	in 	negotiations 	that 	one
minimum day per week, 	Thursdays, 	be 	used 	for 	facilitating
"instructional 	level 	planning 	and 	coordination" 	for 	grades
K-6. 	Staff was 	to 	determine 	how 	the 	days 	were 	to be 	used.
Other 	minimum 	days 	designated 	by 	the 	District 	for 	other
purposes 	were 	to 	be 	in 	addition 	to 	the 	one-per-week 	meeting.
MTA's 	proposed 	calendar 	contained 	no 	reference 	to 	in-service
days.
DISCUSSION
School 	Calendars
The Association 	excepts 	to 	the ALJ's 	findings 	that 	it
waived 	the 	right 	to 	bargain 	over 	the 	calendars 	adopted 	by 	the
12

school board trustees on June 18, 	1979 	and August 20, 	1979.
The 	District 	excepts 	to 	the 	finding 	that 	the Association 	did
not 	waive 	its 	right 	to bargain 	the Robertson 	Road 	calendar
adopted 	by 	the 	trustees 	on August 	6, 	1979.
In 	order 	to 	prove 	that 	an 	employee 	organization 	has waived
its 	right 	to negotiate over matters 	within 	scope, 	the evidence
must 	clearly and 	unmistakably 	demonstrate 	that 	the 	union 	stood
silent 	in 	the 	face 	of 	a 	reasonable 	opportunity 	to 	bargain 	over
a 	decision 	not 	already firmly made 	by 	the 	employer. 	(San 	Mateo
County Community College District 	(1979) 	PERB Decision 	No. 	94;
Los Angeles 	Community College 	District 	(1982) 	PERB Decision 	No.
252.)
In 	the 	instant 	case, 	the 	record 	reveals 	that 	MTA was well
aware 	of 	the 	school 	board 	agenda 	when 	it 	met 	with 	the 	District
on June 	16 	and 	18, 	1979. 	In 	neither 	instance did 	it demand to
negotiate 	the 	school 	calendar. 	The 	District 	provided 	MTA with
notice 	of 	the 	Robertson 	Road 	calendar 	issue 	and 	acknowledged
its 	obligation 	to 	negotiate 	that 	subject, 	yet 	the Association
met 	such 	announcement 	with 	no 	request 	to 	negotiate 	and 	seemed
to 	show complete disinterest 	in 	the matter. 	Indeed, 	although
the parties met 	in 	negotiating sessions on June 21, 	22 and 	23,
1979, 	MTA 	voiced 	no 	desire 	to bargain 	over 	the Robertson 	Road
School 	calendar. 	From these facts, 	we 	find 	that 	the
Association 	waived 	its 	right 	to 	bargain 	with 	the 	District 	as 	to
the Robertson 	Road 	School 	summer 	calendar 	adopted 	on June 	18,
1979.
13

Similarly, 	we 	agree with 	the ALJ's 	conclusion 	that 	MTA
waived 	its 	right 	to 	negotiate 	the 	school 	calendar 	adopted 	by
the 	board 	on August 	20. 	We 	specifically note that, 	at 	the
negotiating sessions 	conducted on August 	11 	and 	12, 	1979, 	the
District 	requested 	discussions 	on 	the 	opening 	day 	of 	school.
In 	the 	face 	of 	this 	request, 	the Association 	refused. 	We 	can
perceive 	no 	clearer 	or 	more 	unmistakable 	manner 	to 	abdicate 	the
right 	to 	negotiate 	than MTA's 	outright 	refusal 	to do so 	in 	the
face 	of 	the 	District's 	direct 	request.
The 	District 	excepts 	to 	the ALJ's 	finding 	that 	MTA 	did 	not
waive 	its 	right 	to 	bargain 	on 	the 	Robertson 	Road 	School's
calendar 	at 	the August 	6 	school 	board meeting. 	The ALJ's
conclusion 	was 	based 	on 	Ken 	Burt's 	remarks 	made 	at 	the
August 	6. 	In 	reliance 	upon 	the 	testimony of Wilson 	that 	Burt
"urged 	the 	Board 	not 	to adopt 	the 	calendars 	since 	they were
bargainable 	issues," 	the ALJ 	found 	that 	Burt 	protested 	adoption
of 	both 	the 	regular 	school 	calendar 	and 	the 	Robertson 	Road
School 	calendar.
We 	find Burt's 	statement 	to 	be 	ambiguous 	at 	best 	and 	not 	a
clear 	protest 	of 	the 	action 	with 	regard 	to 	the Robertson 	Road
calendar. 	Other 	evidence 	supports 	our 	conclusion 	that 	Burt's
objection 	was 	only 	to 	the 	calendar 	for 	the 	regular 	schools. 	On
August 	3, 	1979, 	Burt 	received 	the 	agenda 	for 	the August 	6
school 	board 	meeting 	and 	immediately 	telephoned Wilson. 	Wilson
testified 	that 	Burt's 	concern 	"was 	with 	the 	impending 	board
action 	on 	the 	regular 	school 	calendar." 	Burt 	followed 	this
14

conversation with 	a 	letter, 	dated 	the 	same 	day, 	asking 	to
bargain 	"on 	the 	subject 	of 	calendar 	including 	opening 	day."
Burt's 	letter 	could 	not 	have 	concerned 	the Robertson 	Road
opening 	day 	since 	that 	school 	was 	already 	open 	and 	sessions
were 	underway. 	Moreover, 	when 	MTA submitted 	its proposal 	on
the 	calendar, 	that 	proposal 	contained 	no 	reference 	to 	the
Robertson 	Road 	School.
In 	light 	of the 	fact 	that, 	prior 	to August 	3, 	MTA
demonstrated 	no 	interest 	in 	negotiating 	the 	Robertson 	Road
calendar, 	we 	cannot 	devine 	from the 	ambiguous 	language 	of 	the
August 	3 	letter 	that 	MTA sought 	to 	initiate 	such 	negotiations.
Therefore, 	we 	reverse 	the ALJ's 	finding 	that 	the Association
did 	not 	waive 	its 	rights 	to 	bargain 	on 	the 	subject 	of 	calendar
at 	the August 	6 	meeting.
In-Service 	Day
Relying 	on 	the 	fact 	that 	the parties 	had 	not 	reached
impasse 	on 	the 	subject 	of 	in-service 	and minimum days 	and 	that
the 	District 	deviated 	from 	the 	past 	practice 	of 	consulting 	with
the 	school 	staff 	on 	the 	in-service 	use, 	the ALJ 	held 	that 	the
District's 	implementation 	of 	the September 	20, 	1979 	in-service
day was 	a 	unilateral 	act 	in 	violation 	of 	section 	3543.5 	of 	EERA.
In 	its 	appeal, 	the District asserts 	that 	in-service
training 	is 	a management 	prerogative, 	synonymous with 	staff
development, 	In 	part, 	the District 	relies 	on Jefferson 	School
District 	(1980) 	PERB Decision No. 	133, 	where the Board held
that 	the 	number 	of minimum days 	for 	staff 	development 	is 	a
15

nonnegotiable 	subject 	and 	to 	require 	the 	employer 	to 	negotiate
" . . . 	would 	be 	to 	'interfere 	with 	management's 	authority 	to
direct 	its workforce.'"
In 	this 	case, 	the District 	felt 	that 	the 	in-service
training 	session 	would 	disseminate 	information 	beneficial 	to
teachers 	in 	the 	accomplishment 	of 	their 	mission 	of 	educating
students. 	Whether 	the 	information was merely 	"useful," 	as 	the
hearing officer 	suggests, 	or 	"essential," 	is not 	for PERB to
determine. 	The 	critical question 	is whether 	the 	in-service
training 	session 	increased 	the 	teachers' 	workday.
Here, 	the 	in-service 	session was 	held on a minimum day and
did 	not 	extend beyond 	the 	teachers' 	workday. 	In 	addition,
since 	the 	District was 	free 	to 	exercise 	its managerial
prerogative 	to 	designate 	September 	20 	as 	an 	in-service 	day 	in
order 	to 	improve 	language 	arts, 	we 	find 	the 	District's past
willingness 	to 	consult 	on 	the 	use 	of 	minimum days 	of 	little
consequence. 	The 	District was 	not 	required 	to negotiate 	the
implementation 	of 	the 	September 	20, 	1979 	in-service 	session.
Thus, 	we 	hold 	that 	the 	District's 	implementation 	of 	this
in-service was 	not 	a 	violation 	of 	the 	EERA but was 	an 	exercise
of management's 	right 	to assign work, 	including attendance 	at
an 	in-service 	training.
60-Minute 	Cycle
The ALJ 	found 	that 	the 	60-minute 	cycle 	as 	implemented 	by
the 	District 	extended 	the 	teachers' 	workday and 	shortened 	the
teachers' 	lunch period. 	The ALJ also 	found 	that 	the workday
16

extension 	issue was 	on 	the 	negotiating 	table 	when 	the 	60-minute
cycle 	was 	adopted 	and 	that, 	by 	changing 	the 	class 	period 	cycle
without 	bargaining 	to 	impasse, 	the District 	failed 	to meet 	and
negotiate as 	required 	by section 	3543.5(c). 	The ALJ 	also 	found
the 	District's 	waiver 	and 	business 	necessity 	defenses
unavailing.
To 	implement 	the 	60-minute 	cycle, 	the 	District 	unilaterally
required 	the 	teachers 	to 	begin 	instruction 	ten 	minutes 	earlier
and 	work 	a 	longer 	school 	day. 	This 	increase 	in work 	time 	is
found 	to 	be a 	violation. 	The 	District 	failed 	to prove 	that 	its
action 	was 	required 	by business 	necessity, 	or 	that 	the
Association waived 	its 	right 	to 	negotiate 	the 	subject. 	Thus,
we 	affirm 	this 	portion 	of 	the 	proposed 	decision 	as 	modified
above.
Attorney 	Fees
The 	Association 	excepts 	to 	the 	hearing 	officer's 	conclusion
that 	an 	award 	of 	litigation 	expenses 	and 	attorney 	fees 	is 	not
appropriate 	in 	either 	S-CE-286 	or 	S-CE-287. 	It 	argues 	that 	an
award 	of 	both 	litigation 	expenses 	and 	attorney 	fees 	is
appropriate 	in 	these 	cases 	and 	necessary 	to 	deter 	future
violations 	by 	this 	employer.
We hold, 	however, 	that 	the ALJ's 	determination 	is correct.
In 	King City High 	School 	District Association, 	et 	al 	(Cumero)
(1982) PERB Decision No. 	197, hg. pen. 	(SF 24905), the Board
adopted 	the 	National 	Labor 	Relations 	Board 	standard 	for
determining when 	fees 	should 	be 	awarded 	in 	unfair 	practice
cases:
17

Attorney's 	fees will 	not 	be awarded 	to a
charging 	party 	unless 	there 	is 	a 	showing
that 	the 	respondent's 	unlawful 	conduct 	has
been 	repetitive 	and 	that 	its 	defenses 	are
without 	arguable merit.
See also Heck's, 	Inc. 	(1974) 	215 NLRB 765 	[88 LRRM 1049],
holding 	that 	fees 	are 	not 	appropriate where 	defenses 	are 	at
least 	"debatable."
We 	find 	that 	the 	Association 	failed 	to 	show 	that 	the
District's 	conduct 	has 	been 	repetitive 	or 	that 	its 	defenses
were without merit. 	Thus, 	we affirm the ALJ's 	determination 	in
this 	regard, 	and 	decline 	to 	award 	litigation 	expenses 	and
attorney 	fees 	to 	the Association.
REMEDY
Section 	3541.5(c) 	of 	the EERA grants 	PERB broad powers 	to
remedy unfair 	practices. 	Pursuant 	to 	this 	authority, 	we may
fashion 	appropriate 	remedies 	to 	effectuate 	the 	purposes 	of 	the
EERA. 	In 	the 	present 	case, 	we 	have 	found 	that 	the 	District
unilaterally 	extended 	the 	work 	hours 	of 	several 	of 	its
certificated 	employees. 	In 	so doing, 	the 	District 	violated 	its
duty 	to 	refrain 	from making 	changes 	in 	subjects 	that 	are within
the 	scope 	of 	bargaining 	until 	it 	affords 	the 	exclusive
representative notice and an 	opportunity to negotiate. 	It 	is
generally 	appropriate 	under 	these 	circumstances 	to 	order 	a
return 	to 	the 	status 	quo 	and 	order 	the 	District 	to meet 	and
negotiate, 	upon 	request, 	over 	the decision 	and effect 	of 	the
increase 	in work 	hours, 	to cease and 	desist 	from taking any
further 	unilateral 	actions 	regarding matters 	within 	scope, 	and
18

to 	make 	employees 	whole 	for 	any compensation 	not 	received when
the 	workday was 	unilaterally 	extended.
We are, 	however, 	reluctant 	to order a 	restoration of the
status quo ante 	in 	this case. 	Here, 	the 	60-minute
instructional 	cycle 	has 	long been 	in 	place. 	With 	the 	current
year 	in progress, 	we 	hesitate to disrupt 	the 	education process
underway. 	(Alum 	Rock 	Union 	Elementary 	School 	District 	(1983)
PERB Decision 	No. 	322; 	Los Angeles 	Community College District
(1982) 	PERB Decision No. 	252; 	Solano County Community College
District 	(1982) 	PERB Decision No. 	219; 	and Rialto Unified
School District 	(1982) 	PERB Decision No. 	209.)7
Further, 	we are aware that 	the Legislature, 	in enacting
Senate Bill 813 (stats. 1983, ch. 498, sec. 80, p. 2031), has
strongly 	urged 	that 	the 	instructional 	day 	be 	lengthened, 	not
decreased. 	It 	has 	not 	only provided 	incentives 	for 	increasing
the 	school 	year 	and 	instructional 	day, 	but 	it 	has mandated 	that
revenues 	be 	reduced 	in 	those 	districts 	whose 	instructional
hours 	fall 	below the 	level 	fixed 	in 	the 	1982-83 	fiscal
year.8 Such 	a 	loss 	of 	revenue 	would 	adversely 	affect 	not
77In	rn 	accordance with 	the 	discussion 	infra, 	Chairperson
Hesse 	views 	the 	parties' 	three 	subsequent 	agreements 	as 	clear
evidence 	that 	an 	agreement 	has 	been 	reached 	regarding 	hours 	of
work 	and, 	for 	that 	reason 	alone, 	would 	deny 	restoration 	of 	the
status 	quo. 	(Los 	Angeles 	Community College District, 	supra.)
8Education 	Code 	section 	46202 provides, 	in 	relevant part:
[I]n 	any 	fiscal year, 	if 	the governing board
of 	a 	school 	district 	offers 	less
instructional 	time 	than 	the 	amount 	of
19

only 	the 	District, 	but 	ultimately the 	employees 	and 	students 	as
well. 	These 	consequences militate 	against 	the 	restoration 	of
the 	status quo.
Nevertheless, 	we 	do 	find 	it 	appropriate 	to 	require 	the
District 	to 	reimburse 	any of 	the 	high 	school 	employees 	who
suffered 	loss 	of 	compensation 	as 	a 	result 	of 	the 	District's
unilateral 	action and 	failure 	to 	negotiate. 	(Rialto, 	supra.)
The 	District 	admitted 	that 	it 	added 	10 	minutes 	to 	the 	beginning
of 	the 	teacher 	workday, 	whether 	and 	how much 	the 	decrease 	in
the 	student 	lunch 	period 	actually 	increased 	the 	teacher 	workday
was 	not made 	clear 	at 	the 	hearing. 	Thus, 	should the parties 	be
unable 	to 	agree 	as 	to 	the 	total 	impact 	this 	had 	on 	the 	workday,
a 	compliance 	hearing may be 	in 	order.
Moreover, 	subsequent 	to 	the 	District's 	unlawful 	conduct,
the 	parties 	reached agreement 	on 	the 	length 	of 	the 	teachers'
workday. 	indeed, 	the 	parties 	have 	negotiated and 	reached
agreement 	on 	specific 	hours 	of work 	in 	three 	consecutive
collective bargaining agreements, 	on 	May 4, 	1981, 	the parties
concluded 	negotiations 	on 	a 	collective 	bargaining 	agreement
which 	included, 	in Article 	IV, 	a provision 	covering working
hours. 	on 	September 	20, 	1982, 	the parties 	reached agreement 	on
instructional 	time 	fixed 	for 	the 	1982-83
fiscal 	year, 	the 	superintendent 	of 	Public
instruction 	shall 	in 	that 	fiscal 	year 	reduce
that 	district's 	apportionment 	by 	the 	average
percentage 	increase 	in 	the 	base 	revenue
limit 	for 	districts 	of 	similar 	type 	and
size, 	multiplied 	by the 	district's 	units 	of
average 	daily attendance.
20

the 	1982-84 	collective 	bargaining agreement. 	The 	1984-86
collective 	bargaining 	agreement 	was 	signed 	on 	September 	17,
1984. 	All 	of 	these 	contracts 	established 	the 	teacher 	workday
as 330 minutes. 9	9
Section 	3541.5(c) 	of 	the Act empowers 	the Board 	"to 	issue
an 	order 	directing 	an 	offending 	party 	to 	. . . 	take 	such
affirmative 	action 	. . . 	as 	will 	effectuate 	the 	policies 	of
[the 	Act]." 	PERB has 	previously held 	that 	a 	remedy failing to
take 	into 	account 	the 	existence 	of 	the 	negotiated 	agreement
does 	not 	effectuate 	the purposes 	of 	the 	EERA. 	(Rio Hondo
Community college District 	(1983) 	PERB Decision N O . 	279a;
Delano 	union 	Elementary 	school 	District 	(1982) 	PERB 	Decision
No. 	213a.) 	Accordingly, 	if a 	successor 	agreement 	resolved the
parties' dispute 	on 	length 	of 	the 	workday, 	the 	District's
liability 	for 	back 	pay would 	terminate 	as 	of 	that 	time. 	If 	the
parties 	do not 	agree 	on whether 	or 	at what point, 	a 	successor
agreement 	resolved 	the parties' 	dispute, 	their 	agreement 	can 	be
resolved in a compliance hearing.10 10
9 The 	Board 	takes 	administrative 	notice 	of 	the 	collective
bargaining 	agreements 	filed 	with 	its 	regional 	offices 	pursuant
to PERB Regulation 	32130, 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001, 	et seq.
10Chairperson 	Hesse, 	however, 	would 	resolve 	the 	remedy
without 	resorting 	to 	compliance 	and 	would 	limit 	the 	order 	of
back 	pay, 	determined 	by the 	number 	of 	required 	extra 	hours
actually worked 	by each 	affected 	employee, 	from 	the 	date 	of 	the
change 	in workday 	(September 	6, 	1979) 	until 	agreement was
reached on the new contract 	(May 4, 	1981). 	(LOS Angeles
Community 	college 	District, 	supra.)
21
9
10

It 	is 	also 	appropriate 	that 	the 	District 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the 	Order.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and pursuant 	to
section 3541.5(c), 	it 	is 	hereby ORDERED that the Modesto City
and 	High 	School 	Districts 	and 	their 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	through
and 	until 	the 	completion 	of 	the 	statutory 	impasse 	procedures
set 	forth 	in 	the 	EERA 	by 	taking 	unilateral 	action 	on 	matters
within 	the 	scope 	of 	representation, 	as 	defined 	in 	section
3543.2.
2. 	Denying 	the Association 	its 	right 	to 	represent 	its
members 	by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	about
matters 	within 	the 	scope 	of 	representation.
3. 	interfering with 	employees 	because 	of 	their
exercise 	of 	their 	right 	to 	select 	an 	exclusive 	representative
to 	meet 	and 	negotiate with 	the 	employer 	on 	their 	behalf 	by
unilaterally 	changing 	matters 	within 	the 	scope 	of
representation 	without 	meeting 	and 	negotiating 	with 	the
exclusive 	representative.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES 	OF 	THE ACT:
1. 	upon 	request 	of 	the Association, 	meet 	and 	negotiate
with 	the 	Association 	over 	the 	decision 	and 	the 	effects 	thereof
of 	any change 	in hours 	of 	the 	teachers.
22

2. 	Pay 	to 	the 	employees 	whose 	hours 	were 	affected
compensation 	for 	the 	increased 	work 	time 	based 	on 	their 	wages
at 	the 	time 	their 	work 	hours 	changed, 	with 	interest 	at 	the 	rate
of 	ten 	(10) 	percent per annum, 	from the date of 	the unilateral
change 	(September 	6, 	1979) 	until 	the 	occurrence of 	the 	earliest
of 	the 	following 	conditions:
(a) 	the 	date 	the 	District 	and 	the Association
reach 	or 	have 	previously 	reached 	agreement 	or 	negotiated
through 	the 	statutory 	impasse 	proceedings 	concerning 	the
unilateral 	change 	in hours;
(b) 	the 	failure of 	the Association 	to 	request
bargaining within 	ten 	(10) 	days 	following 	the date 	this
Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	or 	failure 	of
the Association 	to 	commence 	negotiations 	within 	five 	(5) 	days
of 	the 	District's 	notice 	of 	its 	desire 	to 	bargain 	with 	the
Association; or
(c) 	the 	subsequent 	failure 	of 	the Association 	to
bargain 	in 	good 	faith.
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
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	this
Notice 	is 	not 	reduced 	in 	size, 	defaced, 	altered or covered by
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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/her
instructions.
Members Morgenstern, 	Burt 	and 	Craib 	join 	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 Nos. 	S-CE-286 	and
S-CE-287, 	Modesto Teachers Association 	v. 	Modesto City and
High 	School 	Districts, 	in which all 	parties 	had 	the 	right 	to
participate, 	it 	has 	been 	found 	that 	the Modesto City and 	High
School 	Districts 	violated 	Government 	Code 	section 	3543.5(a),
(b) 	and 	(c). 	The District violated these provisions of the
law by 	unilaterally 	extending 	the 	teachers' 	workday 	and
shortening the 	teachers' 	lunch period, 	matters within 	the
scope 	of 	representation.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to post
this 	Notice 	and will 	abide by 	the 	following. 	We will:
A. 	CEASE 	AND DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	through 	and
until 	the 	completion 	of 	the 	statutory 	impasse procedures 	set
forth 	in 	the 	EERA 	by 	taking 	unilateral 	action 	on 	matters
within 	the scope 	of 	representation, 	as 	defined 	in 	section
3543.2.
2. 	Denying 	the Association 	its 	right 	to 	represent 	its
members 	by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	about
matters 	within 	the 	scope 	of 	representation.
3. 	Interfering with 	employees 	because 	of 	their 	exercise
of 	their 	right 	to 	select 	an 	exclusive 	representative 	to meet
and 	negotiate with 	the 	employer 	on 	their 	behalf 	by
unilaterally 	changing matters 	within 	the 	scope 	of
representation 	without 	meeting 	and 	negotiating 	with 	the
exclusive 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Upon 	request 	of the Association, 	meet and negotiate
with 	the 	Association 	over 	the 	decision 	and 	the 	effects 	thereof
of 	any change 	in 	hours 	of 	the teachers.
2. 	Pay 	to 	the 	employees whose 	hours 	were 	affected
compensation 	for 	the 	increased work 	time 	based 	on 	their 	wages
at 	the 	time 	their 	work 	hours 	changed, 	with 	interest 	at 	the 	rate
(t

of 	ten 	(10) 	percent 	per 	annum, 	from the 	date 	of 	the 	unilateral
change 	(September 	5, 	1979) 	until 	the occurrence 	of 	the earliest
of 	the 	following 	conditions:
(a) 	the 	date 	the 	District 	and 	the Association 	reach 	or
have 	previously 	reached 	agreement 	or 	negotiated 	through 	the
statutory 	impasse 	proceedings 	concerning 	the 	unilateral 	change
in hours;
(b) 	the 	failure of 	the Association 	to 	request
bargaining within 	ten 	(10) 	days 	following 	the date 	this
Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	or 	failure 	of
the Association 	to 	commence 	negotiations 	within 	five 	(5) 	days
of 	the District's 	notice 	of 	its 	desire 	to 	bargain 	with 	the
Association; or
(c) 	the 	subsequent 	failure 	of 	the Association 	to
bargain 	in 	good 	faith.
Dated: 	MODESTO 	CITY 	AND 	HIGH 	SCHOOL
DISTRICT
By: Authorized 	Signature
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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