Lake Elsinore School District (PERB 0606E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
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ELSINORE 	VALLEY 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
LAKE ELSINORE 	SCHOOL DISTRICT,
Respondent.
Case 	No. 	LA-CE-2028
PERB 	Decision 	No. 	606
December 	31, 	1986
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Appearances; 	A. 	Eugene Huguenin, 	Jr., 	for Elsinore Valley
Education Association, 	CTA/NEA; 	Parham and Associates, 	Inc., 	by
James 	C. 	Whitlock 	for Lake 	Elsinore 	School 	District.
Before Morgenstern, 	Burt and Porter, 	Members.
DECISION
PORTER, 	Member: 	This 	case 	is before 	the Public 	Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed by 	the 	Lake
Elsinore 	School 	District 	(District) 	to a 	proposed 	decision 	of 	a
PERB 	administrative 	law 	judge 	(ALJ). 	The 	ALJ 	found 	that 	the
District 	violated 	the 	Educational 	Employment 	Relations 	Act 	(EERA
or A c t ) 1 by unilaterally adopting 	the 	school 	calendar 	and
changing 	the 	work 	year of 	the 	teachers. 	For 	the 	reasons 	which
follow, 	we 	reverse 	the ALJ's 	proposed 	decision 	and dismiss 	the
charge.
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references herein 	are
to 	the 	Government 	Code.
______ )

FACTS
The 	collective 	bargaining 	agreement 	between 	the 	Elsinore
Valley 	Education Association, 	CTA/NEA 	(Association) 	and 	the
District 	expired 	in 	June 	1982, 	and agreement on 	the 	successor
three-year 	contract 	was 	not 	reached until 	April 	1983, 	retroactive
to 	July 	1982. 	It 	contained provisions 	for 	reopening portions 	of
the 	agreement 	in 	each 	of 	the 	succeeding 	two 	school 	years 	(1983-84
and 	1984-85).
The 	reopeners 	for 	the 	1983-84 	school 	year 	were 	still 	in
mediation 	as 	of May 	1984.2 Nevertheless, 	the 	District
superintendent 	submitted 	to 	the 	school 	board at 	its 	May 	16
meeting 	a 	"draft 	tentative 	calendar" 	for 	the 	1984-85 	school 	year.
This 	was 	included 	in his 	"Superintendent's 	Report" 	and 	noted 	in
the 	minutes. 	The Association president 	was 	at 	the 	meeting and
apparently 	requested a 	copy of 	the 	draft 	calendar, 	which was
supplied by the 	superintendent 	two days 	later, 	attached 	to a
letter 	which 	stated 	that 	time 	was 	fleeting 	and 	there 	were
important 	issues 	to be 	addressed 	in 	negotiations. 	These 	issues
included 	the 	District-proposed 	increased 	school 	year 	for 	children
and 	the 	District 	calendar. 	The 	enclosed 	draft 	calendar 	reflected
the 	longer 	school 	year 	for 	students, 	along with 	a 	longer 	work
year 	for 	teachers, 	both 	of which were 	consistent with 	the
District's 	initial 	proposal 	for 	1984-85.
2All 	dates herein 	refer 	to 1984, 	unless 	otherwise
indicated.
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Also, 	on May 18, 	the 	District's negotiator wrote to the
Association's 	negotiator, 	again 	attaching 	a 	copy of 	the 	draft
calendar, 	and proposed 	three dates 	for 	negotiations, 	saying 	that
one 	of 	the 	items 	the 	District 	wanted 	to 	negotiate 	was 	calendar.
According 	to 	the 	superintendent's 	unrebutted 	testimony, 	in
early 	June he 	sent 	a 	memo 	to 	the 	new Association 	president
outlining 	topics 	that 	needed 	attention 	soon. 	Included 	among
these 	was 	calendar. 	He 	requested 	to 	negotiate 	as 	soon 	as 	the
Association 	had 	selected 	its 	1984-85 	bargaining 	team.
On June 	12, 	the 	District 	negotiator wrote 	to 	the new
president 	of 	the Association, 	enumerating 	a 	few 	topics 	which he
said 	the 	District 	had previously 	requested 	to 	negotiate, 	and
included 	calendar 	as 	one 	of 	the 	topics. 	His 	letter 	states 	that
he had 	raised 	the 	issue 	of 	calendar 	at 	the 	table 	on June 	7 but
that 	the Association's 	negotiator, 	Tom 	Brown, 	told him 	that 	the
team 	at 	the 	table 	was 	the 	1983-84 	negotiating 	team 	and 	it 	could
not 	respond 	to a 	1984-85 	issue. 	The 	letter 	states 	that 	the
District 	wished 	to negotiate 	these 	subjects 	at 	the 	Association's
earliest 	convenience.
At 	the 	June 	21 	school 	board meeting, 	the board minutes
indicate 	that 	the 	board 	took 	action 	to adopt a 	proposed 	school
calendar, 	which 	the minutes 	state was 	"subject 	to negotiations."
According 	to 	the 	minutes, 	the Association 	president 	attended 	the
meeting but 	apparently made 	no 	objection 	to 	the 	action 	taken by
the 	board.
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The 	superintendent 	testified 	that, 	by August 	13, 	it was 	clear
that 	no agreement 	would be 	reached on 	the 	District's 	proposal 	to
increase 	the 	number of preservice days 	for 	teachers, 	since 	the
parties 	had 	not 	commenced 	negotiations 	on 	the 	1984-85 	issues.
Thus, 	in 	order 	to have 	sufficient 	time 	to notify teachers of 	the
start 	of 	school, 	the 	District 	revised 	its 	proposed 	calendar 	on
August 	13 	to 	eliminate 	the 	proposed 	additional 	preservice 	day.
Instead, 	under 	the 	revision 	to the calendar, 	the 	number of
preservice 	days 	was 	consistent 	with 	the 	terms 	of 	the 	collective
bargaining 	agreement. 	The 	first bargaining 	session 	for 	the
1984-85 	contract 	was held on August 	16, 	and 	calendar was 	one 	of
the 	issues 	under 	discussion, 	but 	no agreement 	was 	reached at
that 	time. 	Nevertheless, 	teachers 	and 	students 	returned on 	the
dates 	indicated 	on 	the 	District's 	proposed 	calendar.
In 	late 	November 	1984, 	and 	still before agreement 	was
reached 	on 	the 	calendar, 	the 	school 	board 	expressed 	concern 	that
the 	spring 	vacation 	was 	different 	than 	that 	of 	the high 	school
district. 	The board 	instructed 	the 	superintendent 	to 	attempt 	to
negotiate 	an 	agreement 	to 	conform 	the 	vacation 	to 	that 	of 	the
high 	schools 	and 	set a deadline of 	February 15, 	1985 	for 	such
agreement 	to be 	reached 	in 	order 	to have 	sufficient 	time 	to
notify 	students 	and 	their parents 	before 	vacation. 	On
December 	6, 	the 	superintendent 	informed 	the 	Association's
bargaining 	chairperson 	of 	the board's 	instructions 	and
apparently 	requested a 	meeting 	to negotiate 	the 	issue. 	The
chairperson 	responded on 	December 	19 with 	a memo stating, 	in
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essence, 	that 	the Association was prepared 	to address 	"the 	total
hours 	issue" 	either 	in negotiations 	for 	the 	1983-84 and 	1984-85
years 	(the 	parties 	were 	waiting 	for 	the 	factfinding 	report 	for
1983-84 	and were 	at 	impasse 	for 	1984-85) 	or 	in 	the unfair
practice hearing 	in 	this 	case 	scheduled 	for 	January 17, 	1985.
In 	January 	1985, 	the 	District 	administration 	again 	revised
the 	calendar, 	making 	spring vacation 	one 	week 	later 	than 	as
indicated 	on 	the 	earlier 	version. 	The memo attached 	to 	the
calendar 	and 	distributed 	to 	school 	principals 	and 	secretaries
states 	that 	this 	is 	"STILL A PROPOSED CALENDAR." 	(Emphasis 	in
original.)
The 	collective 	bargaining 	agreement 	then 	in 	effect 	includes
an 	article 	specifying 	that 	the 	work 	year 	for 	the 	teachers 	shall
be 	179 	days 	for 	returning 	teachers 	and 	180 	days 	for 	new 	teachers,
with 	175 	student attendance days, 	1 	parent 	conference day, 	3
preservice 	days 	for 	returning 	teachers 	and 	4 preservice 	days 	for
new 	teachers. 	Finally, 	it 	states 	that 	the 	school 	year 	calendar
shall 	be 	attached.
The agreement 	contains, 	as an appendix, 	a 	"proposed"
calendar 	for 	the 	1982-83 	school 	year 	that 	was 	tentatively agreed
to 	in 	September 	1982 	and 	later 	incorporated 	into 	the 	full
agreement. 	The 	significant dates 	are 	as 	follows:
August 	31 	New teachers' 	first 	day
September 	1 	Returning 	teachers' 	first 	day
September 	7 	Students' 	first 	day
December 	20 -
January 	3 	Christmas 	recess
April 	4 - 8 	Spring 	recess
June 	10 	Last 	day 	of 	school
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The 	appendix 	also 	states 	that 	the 	District 	shall 	establish 	1 	full
day of parent 	conferences 	and up to 	4 	student 	minimum days 	for
partial 	day 	conferencing.
The 	1982-85 	agreement 	also had attached 	to 	it, 	as 	a 	second
appendix, 	a 	"proposed calendar" 	for 	1983-84. 	It 	is not 	clear
from 	the 	record 	when 	this 	calendar 	was 	agreed 	to, 	as 	the parties
were 	still 	in 	factfinding 	on 	that 	year's 	negotiations 	during 	the
spring of 	1984.3 Nonetheless, 	the 	significant dates 	are 	as
follows:
September 	7 	New 	teachers' 	first 	day
September 	8 	Returning 	teachers' 	first 	day
September 	12 	Students' 	first 	day
November 	16 	Parent-teacher 	conference
December 	19 	-
January 	2 	Christmas 	recess
April 	16 	- 	20 	Spring 	recess
June 	15 	Closing 	day of 	school 	- 	unless
modified by 	negotiations 	or
legislation
The 	charge 	in 	this 	case was 	filed on August 	2, 	1984 by the
Association's bargaining chairperson, 	James 	Caldwell. 	The
Association 	later 	substituted 	as 	the 	charging party. 	The 	charge
alleges 	that 	the 	District 	took 	unlawful 	unilateral 	action by
adopting a 	school 	calendar on June 	21, 	1984 that altered 	the
work 	year of 	the bargaining unit members. 	Caldwell 	was 	the
Association's 	only witness, 	and he 	testified 	that, 	as 	of 	the 	date
3Although 	the 	ALJ 	stated 	in his 	decision 	that 	the previous
year's 	calendar 	was 	adopted 	in 	September, 	he was 	apparently
referring 	to 	the 	calendar 	adopted by 	the 	District 	for 	1982-83,
since 	the 	record 	does 	not 	reveal 	when 	the 	1983-84 	calendar 	was
adopted.
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of 	the hearing 	(January 17, 	1985), 	the 	District was 	"giving
implementation" 	to 	the 	calendar 	that was 	adopted 	in June 	1984,
except 	that 	the 	District 	did 	not 	increase 	the 	number 	of
preservice 	days 	required of 	the 	teachers. 	The witness 	testified
that 	the 	calendar 	adopted 	in 	June 	for 	1984-85 	differed 	from 	the
1983-84 	calendar 	in 	that 	the 	teachers 	were 	to 	come back 	a 	week
earlier, 	it 	lengthened the work year by 	five days, 	it changed
Christmas 	vacation 	to a 	later 	time, 	it 	changed 	spring break 	to a
two-week 	earlier 	time, 	and 	it 	designated 	two minimum days 	in
April 	for parent 	conferencing. 	The witness 	also 	stated 	that, 	in
the 	spring of both 	1983 	and 	1984, 	there had been 	two days 	of
parent 	conferences 	that 	gave 	rise 	to grievances 	in which 	it 	was
alleged 	that 	teachers 	had 	to 	work 	additional 	hours.
The 	District 	raised 	four 	defenses. 	First, 	it argued 	that
the 	Association 	waived 	its 	right 	to bargain 	the 	subject 	of
calendar. 	Second, 	the 	District 	asserted 	that 	the 	calendar 	was
only a 	tentative 	calendar, 	subject 	to 	negotiations 	and,
therefore, 	under 	San Jose 	Community College 	District 	(1982) 	PERB
Decision No. 	240, 	no unfair practice was 	committed. 	Third, 	the
District 	raised business 	necessity as 	a defense, 	since 	it 	needed
time 	to plan 	and 	notify parents 	and 	employees 	of 	important 	dates.
Finally, 	the 	District 	argued 	that 	its 	action 	was 	consistent 	with
past 	practice 	in 	that 	it had 	adopted 	tentative 	calendars 	in
previous 	years.
The 	ALJ 	rejected 	all 	of 	the 	District's 	defenses. 	As 	a
remedy, 	he 	ordered 	the 	usual 	cease 	and 	desist 	and posting 	and,
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in 	addition, 	required the 	District 	to pay employees 	for 	the 	extra
days 	worked plus 	ten 	percent per 	annum, 	to meet 	and 	negotiate
upon 	request, 	and 	to 	return 	to the 	status 	quo 	for 	1985-86.
DISCUSSION
This 	case 	presents 	the 	issue of 	whether 	the 	District's
adoption 	of a 	calendar, 	"subject 	to negotiations," 	violates 	EERA
section 	3543.5(c).5 Previous 	Board 	decisions 	have 	established
that 	the 	employee 	calendar 	is a 	negotiable 	subject, 	including
the work year 	starting and ending dates, 	holidays, 	vacations 	and
extra 	hour 	assignments. 	Palos 	Verdes 	Peninsula 	Unified 	School
District/Pleasant 	Valley 	School 	District 	(1979) 	PERB 	Decision
No. 	96. 	However, 	a 	calendar adopted 	for 	the purpose of
establishing 	the 	student 	calendar 	is 	not 	negotiable 	and,
therefore, 	the 	District 	does 	not 	commit 	an 	unfair practice by
unilaterally adopting such a 	calendar. 	Palos Verdes, 	supra; 	San
Jose 	Community College 	District 	(1982) 	PERB 	Decision No. 	240.
Contrary 	to 	the Association's 	arguments, 	we 	find 	the 	decision
in 	San 	Jose 	to be 	closely analogous 	to 	the 	facts 	in 	this 	case.
In 	San 	Jose, 	the 	district 	informed 	the association 	that 	it
intended 	to withdraw 	from 	an 	experimental 	program, 	which 	would
5Section 	3543.5 provides, 	in 	relevant part:
It 	shall 	be 	unlawful 	for a 	public 	school
employer 	to:
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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• 	• 	• 	• 	• 	•

have 	the 	effect of 	changing 	15 	inservice 	days 	to 	teaching days.
The 	association 	demanded 	to negotiate 	the 	subject 	of 	calendar,
and 	the 	district agreed. 	At 	the 	first meeting, 	the 	district
presented 	its 	proposal, 	which 	reflected 	its 	expressed 	intent 	to
withdraw 	from 	the 	experimental 	program 	and, 	thus, 	increased 	the
number 	of 	teaching 	days 	by 15. 	The association presented 	a
counterproposal 	at 	the 	second meeting, 	which 	the 	district
rejected, 	maintaining 	its 	original 	position. 	At 	the 	next 	two
sessions, 	no movement was 	made by either 	side. 	The district
declared 	impasse, 	but 	PERB 	refused 	to certify 	it. 	The district
then 	adopted 	a 	calendar 	that 	appeared 	to be 	the 	same 	as 	the 	one
it 	proposed. 	The 	Board 	found 	that 	the district's 	evidence 	showed
that 	the 	calendar 	adopted was, 	by definition, 	tentative 	and only
a 	mechanism 	to 	initiate 	the 	upcoming 	school 	year 	student
registration 	process. 	The 	tentative 	nature 	was 	evidenced by 	the
district's 	continued 	involvement 	in 	the 	negotiating process 	and
by 	the 	fact 	that 	the 	district 	made 	a 	proposal 	following adoption
of 	the 	calendar 	that 	was 	different 	than 	that 	adopted. 	Five more
sessions 	followed, 	with 	no movement by 	the 	district 	in 	its
proposal.
In 	San 	Jose, 	the ALJ had 	concluded 	that 	the district
committed 	a 	violation 	by 	adopting 	the 	tentative 	school 	calendar
that 	the 	ALJ 	found 	unilaterally 	altered 	the 	past 	practice 	with
regard 	to 	the beginning 	and 	ending dates 	of 	the 	first 	semester.
In 	addition, 	he 	found 	no 	violation 	with 	regard 	to 	the
substitution 	of 	teaching days 	for 	inservice 	days, 	since he
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determined 	that 	the 	association 	had 	waived 	its 	right 	to
negotiate. 	The 	Board 	reversed 	the 	ALJ, 	concluding 	that 	the
district 	did 	not 	affect 	a 	matter 	within 	scope 	on 	the 	calendar
adoption 	issue, 	since 	the 	evidence 	demonstrated 	that 	the 	district
adopted 	its 	calendar 	solely 	for 	operational 	purposes 	and
continued 	to 	comply 	with 	its 	obligation 	to 	negotiate 	in 	good
faith 	over 	the 	dates 	of 	certificated 	service. 	"By so doing, 	the
District 	fulfilled 	its 	duty 	to 	negotiate 	in 	good 	faith 	as
required by 	the 	Act."
On 	the 	issue 	of 	change 	in 	number 	of 	inservice 	days, 	the 	Board
agreed 	with 	the 	ALJ's 	conclusion but 	found 	that 	the 	association
had 	failed 	to prove 	that 	the 	substitution 	of 	teaching days 	for
inservice 	days 	affected a 	matter within 	scope. 	There 	was 	no
evidence 	about 	additional 	work 	that was 	required and, 	as 	to
those 	issues 	related 	to 	the 	discontinuation 	of 	the 	inservice
program 	that 	did 	affect 	matters 	within 	scope, 	the 	evidence
showed 	that 	the 	parties 	continued 	to 	negotiate 	in 	good 	faith.
Also 	relevant 	to 	the 	present 	case 	is 	Oakland 	Unified 	School
District 	(1983) 	PERB Decision No. 	367. 	In that decision, 	the
district 	had met 	with 	the 	charging party 	three 	times 	to 	negotiate
the 	school 	calendar 	for 	the 	school 	year 	1980-81. 	Prior 	to
reaching 	agreement, 	the 	district 	adopted 	calendars 	for 	1980-81,
1981-82 	and 	1982-83. 	The 	calendar 	for 	1980-81 	switched a
holiday 	to a 	date 	different 	than 	that 	specified 	in 	the 	collective
bargaining 	agreement. 	The 	Board 	affirmed 	the 	ALJ's 	finding 	of 	a
violation with 	respect 	to 	the 	1980-81 	calendar, 	since 	it 	switched
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a 	date of a holiday specified 	in 	the 	contract. 	However, 	the
Board 	reversed 	the 	ALJ's 	finding 	of 	a 	violation 	with 	regard 	to
adoption 	of 	the 	calendars 	for 	1981-82 	and 	1982-83. 	Citing 	San
Jose, 	supra, 	the Board stated:
Based 	on 	the 	District's 	expressed
willingness 	to 	negotiate 	these 	calendars
with OSEA, 	we 	find that, 	by 	its 	action on
July 	23, 	the board 	intended only to adopt 	a
student 	calendar 	and 	not 	an 	employee 	calendar
governing 	employees 	represented 	by 	OSEA.
Oakland, 	supra, page 37.
The 	Board 	also 	found 	that, 	at 	a 	subsequent meeting 	to negotiate
calendar, 	there 	was 	no 	request made by the 	association 	to
negotiate 	the 	calendars 	for 	1981-82 	and 	1982-83, 	nor was 	there
any 	refusal 	by 	the 	district 	to 	negotiate 	these 	calendars 	then 	or
at 	any subsequent 	time. 	Thus, 	the 	association 	failed 	to 	sustain
its 	burden 	of 	proving 	that 	the 	district 	violated 	the 	Act by 	its
conduct.
In Gonzalez 	Union High 	School 	District 	(1984) 	PERB Decision
No. 	410, 	the 	Board 	found 	that 	the district 	violated 	the Act when
it 	unilaterally 	adopted 	a 	tentative 	school 	calendar,
notwithstanding 	that 	it had a 	past 	practice 	of 	adopting 	tentative
calendars 	at 	the 	same 	time 	each year. 	The Board 	found 	that 	the
district's 	conduct 	evidenced 	an 	unwillingness 	to 	negotiate 	the
subject, 	thereby making 	the 	calendar 	final. 	The 	contract between
the 	parties 	contained a 	provision 	that, 	if 	neither 	side 	requested
to 	renegotiate 	the 	contract 	by February 	1, 	the 	contract 	would be
automatically extended 	for 	another year. 	On 	February 	9, 	the
district's 	representative 	wrote 	to 	the 	association 	notifying 	it
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that, 	since 	no 	request had been 	received, 	the 	contract was
automatically extended. 	In 	March, 	the 	district adopted 	its
tentative 	calendar. 	Thereafter, 	when 	the 	association 	demanded 	to
negotiate, 	the district 	refused to negotiate 	and, 	instead, 	said
it 	would 	"discuss" 	the 	issues. 	The Board 	concluded 	that, 	by 	this
conduct, 	the 	district 	failed 	to afford 	the 	union 	the 	opportunity
to 	negotiate 	on 	the 	calendar, 	and 	this 	unwillingness had 	the
effect 	of making 	the 	calendar 	final.
We 	find 	these 	cases 	instructive 	in 	resolving 	the 	issue before
us. 	In 	the present 	case, 	the 	District 	informed 	the Association
several 	times 	prior 	to June 	21 	of 	its 	desire 	to commence
negotiations 	on 	the 	calendar. 	The District 	also attempted 	to
raise 	the 	issue 	at 	the bargaining 	table 	in 	early June, 	only to
be 	told 	by 	the 	Association 	that 	its 	bargaining 	team 	could 	not
address 	that 	issue 	since 	it 	involved 	the 	1984-85 	school 	year.
Following 	the 	District's 	adoption 	of 	the 	calendar 	on June 	21, 	the
District 	continued 	to 	recognize 	its 	obligation 	to negotiate. 	In
August, 	prior 	to the 	first bargaining 	session, 	the 	District
modified 	the 	calendar 	and 	changed 	the 	starting 	day 	for 	teachers
to 	reflect 	the 	language 	of 	the 	contract, 	since 	the 	superintendent
realized 	that 	the 	parties 	would 	not 	reach 	agreement 	on 	the
proposed 	increase 	in 	preservice 	days 	in 	time 	to 	notify 	teachers
of 	their 	return 	date. 	The 	District 	then 	met with 	the Association
on 	August 	16 	to negotiate 	the contract, 	including the calendar.
Although 	the 	starting 	date 	for 	school 	for 	the 	1984-85 	year 	was
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earlier 	than 	in 	1983-84, 	it was 	similar 	to 	the 	starting date 	in
1982-83.
Similarly, 	in December, 	prior 	to agreement on 	the 	calendar,
the 	District 	realized 	that 	the 	spring break 	indicated 	in 	the
calendar 	did 	not 	conform 	to 	the high 	school 	district 	calendar.
However, 	when 	the 	District 	attempted 	to meet 	to 	negotiate 	this
change 	with 	the Association, 	it was 	told essentially that 	the
calendar 	issue 	was 	being 	litigated 	(referring 	to 	the 	present
unfair 	that 	had been 	filed but had not yet 	gone 	to hearing) 	and
was 	also 	the 	subject 	of 	negotiations 	for 	the 	complete 	contract
reopener 	subjects. 	The Association 	representative 	concluded his
response 	by 	indicating 	that 	the 	issue 	would be 	resolved 	in 	one
of 	those 	two 	forums 	and, 	thereupon, 	refused to meet 	separately to
negotiate 	the 	issue. 	As 	a 	result, 	the 	District 	again 	changed 	the
calendar 	by moving 	the 	dates 	of 	spring break 	to 	a 	later 	time 	to
coordinate 	the 	student 	attendance 	with 	that 	of 	the high 	school
district.
Given 	the 	facts 	in 	this 	case, 	we conclude 	that 	the
Association has 	failed 	to 	carry 	its 	burden 	of 	proving by a
preponderance 	of 	the 	evidence 	that 	the 	District's 	adoption 	of
the 	calendar was 	either 	intended 	to be 	a 	final 	calendar, 	or 	that
it 	unilaterally altered 	the 	terms 	and 	conditions 	of 	employment.
In 	so holding, 	we 	rely upon 	San 	Jose 	Community College 	District,
supra, 	and 	find 	that 	the 	mere 	adoption 	of 	a 	tentative 	calendar 	is
not 	a 	per 	se 	refusal 	to bargain, 	nor 	is 	it a per 	se change 	in 	the
terms 	and 	conditions 	of 	employment. 	The adoption 	of 	a 	calendar
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may 	evidence 	a 	refusal 	to bargain 	if 	the 	surrounding 	facts 	and
circumstances 	reflect 	that 	the 	district 	intends 	it 	to be 	a 	final
calendar. 	One of 	the ways of proving 	this 	is 	if 	the district
implements 	it and, 	in so doing, 	changes 	the 	terms 	and conditions
of 	employment.6 However, 	in 	this 	case, 	the 	District 	repeatedly
expressed 	its 	willingness 	to negotiate 	the 	subject, 	both before
and 	after 	its 	action 	on 	June 	21. 	The action 	taken 	clearly
reflected 	its 	tentative 	nature, 	and 	the board minutes 	likewise
indicate 	it was 	subject 	to negotiation. 	Further, 	the District's
conduct 	evidenced 	its 	continued 	recognition 	of 	its 	bargaining
obligation. 	Although 	the 	Association 	argues 	that 	the 	calendar
changed 	the 	status 	quo, 	there 	is 	insufficient 	evidence 	to
conclude 	that 	significant 	changes 	were, 	in 	fact, 	implemented.
Taken 	as 	a 	whole, 	the 	record does 	not 	support a 	finding 	that 	the
calendar 	was 	a 	final 	calendar 	adopted 	in 	derogation 	of 	the
District's bargaining obligation, 	nor 	that 	it 	unilaterally
implemented 	changes 	in 	the 	terms 	and 	conditions 	of 	employment.
Because 	we 	conclude 	the Association has 	failed 	to 	carry 	its
burden 	of proof, 	we 	need 	not 	reach 	the 	remaining defenses 	raised
by 	the 	District.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	it 	is hereby ORDERED that
66we	we 	would 	note 	that 	such 	changes 	may 	constitute
independent, 	unlawful 	unilateral 	changes 	as well.
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the 	unfair 	practice 	charge 	and 	complaint 	against 	the 	Lake
Elsinore 	School 	District 	are 	DISMISSED.
Members 	Morgenstern 	and 	Burt 	joined 	in 	this 	Decision.
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